CITATION: R. v. Devost, 2010 ONCA 459

DATE: 20100621

DOCKET: C48411

COURT OF APPEAL FOR ONTARIO

Doherty, Moldaver and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Karine Devost

Appellant

Marie Henein and M. Gourlay, for the appellant

Michael Bernstein, for the respondent

Heard: June 7, 2010

On appeal from the conviction entered and the sentence imposed by Justice Hugh L. Fraser of the Ontario Court of Justice on January 29, 2008.

Doherty J.A.:

I

OVERVIEW

[1] The appellant, a lawyer, appeals from a finding of criminal contempt. That finding arose out of a submission the appellant made on behalf of her client, Jean-Claude Côté, in a sentencing proceeding. At the contempt hearing, which was presided over by the judge who had sentenced the appellant’s client, the appellant acknowledged that a submission she had made with respect to credit for pre-sentence custody had misled the judge into believing that her client was not in custody on any other matter. Her client was in fact serving a two-year sentence imposed about a week earlier in Québec. As the judge was unaware that the client was serving a sentence, he did not indicate that any part of the 12-month sentence he imposed should run consecutively to any other sentence. Consequently, part of the sentence was interpreted by the correctional authorities as running concurrent to the Québec sentence, resulting in a different and lesser sentence than the judge had intended. The judge later amended the warrant of committal to indicate that the entire 12-month sentence was consecutive to the Québec sentence.

[2] At the contempt hearing, the appellant argued that she had not intended to mislead the sentencing judge and that her inadvertently misleading statement concerning credit for pre-sentence custody was a product of her inexperience and lack of expertise in criminal law matters. The appellant offered a written, unqualified apology for having unintentionally misled the judge.

[3] At the conclusion of the contempt proceedings, the judge rejected both the appellant’s explanation for her misstatement and her apology. He concluded that some of the factual assertions made in the appellant’s explanation were unbelievable. The judge made a finding of criminal contempt and imposed a fine.

[4] I would allow the appeal. The judge’s reasons demonstrate that he proceeded on the basis that the appellant, having made a misleading submission that caused the judge to impose a sentence other than the intended sentence, was guilty of criminal contempt unless she could “purge” or “negate” that contempt by offering an adequate explanation or apology. The judge erred in presuming criminal contempt upon a finding of the requisite actus reus, and in placing a burden on the appellant to demonstrate that her conduct was not contemptuous. The judge should have considered the entirety of the record, including the appellant’s explanation for her misstatement and her unqualified apology, before deciding whether he was satisfied beyond a reasonable doubt that when the appellant made the misleading statement, she had the necessary mens rea.

[5] I am satisfied that, had the requisite mens rea for criminal contempt been properly addressed, there would have been no reasonable basis upon which the judge could have been satisfied beyond a reasonable doubt that the appellant acted with the necessary mens rea. I would quash the conviction and enter an acquittal.

II

FACTS

[6] The appellant was called to the bar in February 2000 and was employed by an Ottawa law firm beginning in November 2001. Eighty per cent of her practice involved civil litigation, 10 per cent involved family litigation, and 10 per cent involved criminal litigation. The appellant is bilingual and most of the criminal work she received at the law firm was because the client was a Francophone or the disclosure was in French. As of the contempt proceedings in 2007, the appellant had conducted three criminal trials and about 15 to 20 guilty pleas. Three or four of her cases involved clients that were in custody.

[7] The appellant returned to her employment with the law firm from maternity leave on October 16, 2006. On that same day, another lawyer in the firm instructed her to appear on behalf of one of his clients to enter a guilty plea on October 20, 2006. The appellant was told that a plea agreement had been arranged and that there would be a joint submission on sentence. The lawyer told the appellant that there would be a pre-trial on October 18, 2006. He did not give her any further information.

[8] The appellant attended the judicial pre-trial on October 18, 2006. The Crown confirmed that the matter would proceed on October 20, 2006 by way of a guilty plea with a joint submission that the client should receive a sentence of 12 months.

[9] The appellant went to the cells to meet her client before court on October 20, 2006. She wanted to get to know him a little bit before sentencing. As the appellant was about to leave the cell, the client asked her if it was true that a sentence would be concurrent to any other sentence being served unless the judge said that the sentence was “consecutive” when he imposed it. The client told her that he had pled guilty to certain charges in Québec the prior week and had received a two-year sentence. The client had a long criminal record and was no doubt quite familiar with the operation of the criminal justice system.

[10] The appellant told the client that she did not know whether the sentence would be concurrent or consecutive if the judge said nothing when he imposed sentence. She said she would try to find out the answer to his question.

[11] Before going into court, the appellant spoke to a colleague who told her that a sentence would be concurrent if the word “consecutive” was not mentioned by the judge when the sentence was imposed. Her colleague also told her that, in her opinion, the appellant had no obligation to disclose the client’s recent conviction and sentence to the Crown or to the court.

[12] The appellant did not tell the Crown or the court at the sentencing hearing that her client had been sentenced to a two-year jail term the prior week in Québec. For the purposes of this appeal, it is important to understand that it was never alleged that the appellant’s failure to advise the court of the Québec sentence constituted a contempt of court. Rather, it is common ground that the question whether the appellant was ethically obliged to advise the Crown or the court of the Québec sentence is a matter on which there could be reasonable disagreement. As the appellant’s failure to advise the court of the Québec sentence was not the basis upon which the contempt allegation proceeded, and the issue was not canvassed in argument, it would be inappropriate for this court to comment on the appellant’s ethical duties upon being advised of the Québec sentence by her client.

[13] In the course of very brief submissions on sentence, the appellant said:

This matter was pre-tried with Ms. Meloche and Justice Alder and we – it is a joint submission. We would ask that he gets time served. He’s been in custody since September 20^th – so that’s thirty-one days – with a 12-month custody, deducting the time served, and two years probation with certain conditions. [Emphasis added.]

[14] In response, Crown counsel made equally brief submissions during which he said:

[J]ust a couple of clarifications. One is with respect to the sentence, at least my note – and I’ve indicated this to my friend – is that it’s 12 months from today, not 12 months less the dead time. [Emphasis added.]

[15] The appellant made no submissions in response.

[16] The judge imposed a sentence of eight months on the charge of uttering a threat and a consecutive sentence of four months on the charge of unlawfully entering a dwelling house with two years probation to follow. He indicated that the 31 days of pre-sentence custody could be reflected on the first count on the warrant of committal. In imposing a total sentence of 12 months, the judge intended that the client would serve a 12-month sentence. He, of course, did not know that the client had received a two-year jail term a week earlier.

[17] In April 2007, about seven months after the sentences were imposed, the Crown received a letter from Correctional Services Canada advising that the client had been serving a two-year sentence on the Québec charges at the time he was sentenced in Ontario. Correctional Services requested clarification as to whether the sentences were to be served concurrently or consecutively to the Québec sentence. Correctional Services interpreted the eight-month sentence imposed by the judge on the threatening charge as concurrent to the two-year Québec sentence and the four-month sentence imposed on the other charge as consecutive to that sentence, resulting in the net increase of four months imprisonment.

[18] When notified of Correctional Services’ concerns, the Crown brought an application before the judge to amend the warrant of committal to make it clear that the entire 12 months was to be served consecutively to the Québec sentence. The appellant’s law firm was served with notice of the application, but declined to respond on the basis that it no longer represented the client.

[19] The judge conducted a hearing, determined that he was not functus and that he had not intended that any part of the sentence run concurrently to any other sentence. The judge amended the warrant of committal to make it clear that the sentences he imposed were to run consecutively to the Québec sentence. During this proceeding, the judge decided that the appellant should be cited for contempt. Appropriate notices were given and the contempt proceedings followed.

[20] The contempt hearing took place in December 2007. The appellant, through counsel, provided a lengthy letter of explanation and apology to the court. In the letter, she acknowledged her inexperience in criminal law matters and her faulty understanding of certain aspects of the sentencing process. The appellant also admitted that she was not adequately prepared for the sentencing hearing. She denied, however, that she had acted dishonestly or had ever intended to deceive the court. The appellant accepted that her unintentional misstatement concerning pre-sentence custody had in fact misled the judge. She offered an unequivocal apology.

[21] At the hearing, counsel for the appellant advised the court that the appellant would take the stand and reiterate her explanation and apology if the judge thought it appropriate. The judge did not pursue counsel’s invitation. Nor did the Crown request an opportunity to cross-examine the appellant on her explanation and apology.

[22] There were many issues canvassed at the contempt hearing, including the appellant’s competence, inexperience, the adequacy of her firm’s supervision of her practice, and the remedial steps that might be taken to improve the appellant’s competence. However, as the judge observed, the crux of the contempt allegation centred on the appellant’s submission that her client should get credit for 31 days pre-sentence custody. While there were other failings in the appellant’s representations on sentence, including a misdescription of her client’s criminal record, those failings were not relied on to support the contempt finding. The appellant’s liability on the contempt charge turned on her state of mind when she made the submission asking for credit for pre-sentence custody. She could only be convicted if, when she made that submission, she had the mens rea necessary for contempt.

[23] There were two problems with the appellant’s submission that her client should get credit for 31 days pre-sentence custody. First, under the terms of the plea agreement, the sentence was to be 12 months from the date of imposition without any credit for pre-sentence custody. Second, the appellant’s submission that her client should get credit for pre-sentence custody implied that her client was not in custody on any other matter; otherwise, he would not have been entitled to full credit for the 31 days. By implying that the client was not in custody on any other matter, the appellant’s submission caused the court to assume that the client was not in custody on any other matter and to not make any inquiries about the need to indicate that the 12-month sentence should be served consecutive to any other sentence.

[24] Appellant’s counsel on the contempt proceedings addressed both difficulties flowing from the appellant’s submissions concerning credit for pre-sentence custody. He acknowledged that the submission was contrary to the terms of the plea agreement. Counsel submitted, however, that in making her submission, the appellant had not intended to repudiate or contradict the plea agreement, but was simply ignorant of its specific terms when she made the submission.

[25] Counsel’s submission is borne out by the transcript of the sentencing proceedings. Immediately after the appellant made reference to credit for pre-sentence custody, counsel for the Crown, after speaking with the appellant off the record, advised the judge that under the terms of the plea agreement there was to be no credit for pre-sentence custody. The appellant said nothing to suggest that Crown counsel’s correction was inaccurate and the sentencing proceeded accordingly.

[26] Nothing sinister can be read into the appellant’s misstatement of one of the terms of the plea agreement. She knew next to nothing about the agreement, and was aware of the terms only to the extent that they were discussed in the brief judicial pre-trial a few days earlier. The record is silent as to exactly what was said at the pre-trial about credit for pre-sentence custody.

[27] The appellant would not be the first lawyer to have a misunderstanding of what credit, if any, was to be given for pre-sentence custody as part of a plea bargain. It is also not unusual that, during submissions, counsel for the defence or the Crown will innocently misstate a term of a plea agreement. Inevitably, a brief off-the-record discussion follows and the misstatement is quickly corrected by either or both counsel. That is what happened here.

[28] It would be unreasonable to infer an intention to mislead the court through the misstatement of the term of the plea agreement relating to credit for pre-sentence custody. Nor do I think that the judge ultimately based his finding of contempt on the conclusion that the appellant had deliberately misstated a term of the plea agreement. The judge’s finding turned on his conclusion that the submission concerning pre-sentence custody left him with the impression that the client was not in custody on any other matter, such that the question whether the sentence should be consecutive did not arise. The judge was satisfied that the submission misled him into imposing a different sentence than the one he had intended. That result constituted a significant interference with the due administration of justice.

[29] The appellant dealt at some length in her written explanation and apology with her submission concerning credit for pre-sentence custody. I will set out the entirety of that part of the letter:

I asked your Honour to take into consideration his pre-sentence custody of 31 days because I had information that Mr. Côté had been in custody in Ontario since September 20, 2006. I also asked your Honour to apply his pre-sentence custody to the jail term because of past experience. On the 3 or 4 pleas I did on behalf of clients who were in custody, I always asked the judge to take into consideration the pre-sentence custody. So it was common sense to me to ask the same thing for Mr. Côté.

I had no idea I could not ask your Honour to take into consideration Mr. Côté’s pre-sentence custody while Mr. Côté was serving another sentence somewhere else. As mentioned earlier, the Quebec sentence had no relation whatsoever with the Ontario sentence. At no time was the Quebec sentence in my mind because it was another matter in a different jurisdiction, it was a closed matter and was dealt with by another lawyer.

It was only after July 20, 2007 I was explained by a colleague the consequences of asking for pre-sentence custody when a client is already serving a sentence. I was informed that by asking this, I am double dipping. In addition, I now understand that to an experienced trial judge, requesting a pre-sentence custody may leave the impression that the client is not in custody on any other matters. I apologize that my submissions gave you that impression.

I would never intentionally mislead this Court and your Honour in any way. I have the highest respect for this Honourable Court and your Honour. I understand that my representations on behalf of Mr. Côté contributed to your Honour to unintentionally impose a sentence that would have otherwise been different and I apologize for that. That was never my intention to mislead and deceive this Court.

In hindsight, I regret accepting this plea. Although the matter was outside the area of my expertise and usual practice, Mr. Côté’s matter appeared straightforward. A joint position on a plea is usually not a complicated matter. When this new information was brought to my attention by Mr. Côté, I should have investigated the matter more carefully before proceeding with Mr. Côté’s plea. I reiterate that in no way, was I intentionally deceptive or dishonest. [Emphasis added.]

III

THE REASONS FOR JUDGMENT

[30] After reviewing the relevant chronology, the judge summarized the submissions made by appellant’s counsel. He noted that appellant’s counsel had acknowledged that the appellant should not have made the submissions she did and that it was quite proper for her to be called before the court to give an explanation and an apology. Counsel’s reference to the “submissions” included the appellant’s submission that the client should get credit for the pre-sentence custody.

[31] After setting out the appellant’s letter of explanation and apology, and summarizing the letter provided by the appellant’s law firm, the judge immediately made a finding of contempt, stating:

[The appellant’s] conduct in making the representations that she made to this Court on October 20^th, 2006, constitute contempt in the face of the Court. Does her explanation and that offered by her employers serve to purge the contempt? [Emphasis added.]

[32] After referring to some of the leading authorities, the judge reiterated what he viewed as the determinative issue:

Has Ms. Devost’s explanation and apology been sufficient to negative any finding of contempt?

[33] The judge’s ultimate findings are set out in the two passages below:

The actions of Ms. Devost were such that they obstructed or interfered with the administration of justice. The Warrant of Committal for Jean-Claude Côté had to be amended one year later to reflect the sentence that was meant to be imposed. The actions of Ms. Devost demonstrated a very serious disrespect for the Court and its processes.

I have considered the accused’s explanation and apology as well as all of the evidence presented as part of the contempt hearing. I find that the deliberate actions of Ms. Devost and her indifference to her duties placed the integrity of the administration of justice at risk. The finding of contempt has not been purged or negatived. [Emphasis added.]

IV

ANALYSIS

[34] The crime of contempt in the face of the court is unique in many ways. It is, however, a true crime requiring proof of prohibited conduct (actus reus) and proof that at the time the accused engaged in the prohibited conduct, he or she had the requisite culpable state of mind (mens rea). Both elements must be proved beyond a reasonable doubt.

[35] The actus reus of contempt in the face of the court consists of conduct that seriously interferes with or obstructs the administration of justice or conduct which causes a serious risk of interference or obstruction with the administration of justice: R. v. Glasner (1994), 1994 3444 (ON CA), 93 C.C.C. (3d) 226 (Ont. C.A.) at pp. 242-43. A misrepresentation that leads a judge to impose a different sentence than the one intended can constitute the actus reus of a criminal contempt. As I read the submissions of counsel for the appellant at the contempt proceedings, he virtually admitted that the appellant’s misstatement concerning credit for pre-sentence custody did satisfy the actus reus requirements of criminal contempt.

[36] The crime of contempt also requires proof of mens rea. In Glasner, Laskin J.A. described the necessary mens rea in this way:

In short, the fault requirement for criminal contempt calls for deliberate or intentional conduct, or conduct which demonstrates indifference, which I take to be akin to recklessness. Nothing short of that will do.

[37] On the facts of this case, the appellant could only be convicted of contempt if, at the time she made the submission concerning credit for pre-sentence custody, she intended to mislead the court so that the judge would impose a different sentence than the one intended, or she knew there was a risk that her misleading statement would lead to that result and she was indifferent to that risk in making the submission.

[38] The judge referred to the extract from Glasner quoted above in the course of summarizing the relevant case law. Nowhere in the reasons, however, does the judge address the requisite mens rea as distinct from the required actus reus. As I read the reasons of the judge, he took the acknowledgement by the appellant that she had made a submission that had misled the judge into imposing a different sentence than the intended sentence as an admission of contempt. The judge then looked to the contents of the letter for something that would justify a decision to not make a finding of contempt despite the admission that the conduct was contemptuous.

[39] The judge never considered whether, on the totality of the evidence, the necessary mens rea had been established beyond a reasonable doubt. Clearly, the letter was not an admission of the requisite mens rea. To the contrary, it was an express and emphatic denial of the existence of the mens rea. In my view, the judge convicted the appellant because she made a misstatement that misled him into imposing the wrong sentence and because she failed to offer an explanation or apology that was “sufficient to negative” that conduct. This analysis fails to address her state of mind at the relevant time. Furthermore, it inappropriately places a burden on the appellant to negate a finding of contempt once the actus reus is established. Both errors are sufficiently serious to require the quashing of the conviction.

[40] Counsel for the appellant on appeal seeks an acquittal. She submits that on a proper understanding of the mens rea of criminal contempt, a reasonable trier of fact could not, on this record, convict the appellant of contempt of court. Crown counsel contends that there is a basis in the record for a conviction. Both counsel provided a helpful and thorough review of the record in their submissions. Having had the benefit of these submissions, I think the reasonableness of a finding of contempt comes down to a consideration of the appellant’s letter of explanation and apology and the circumstances extant when the appellant made the submission for credit for pre-sentence custody.

[41] In her letter, the appellant explained how she came to make the submission she did and offered an unqualified apology for having unintentionally misled the judge. Her counsel offered to put the appellant in the witness stand if either the Crown or the court saw the need to do so. Ultimately, the judge rejected the explanation and apology, and found aspects of the explanation to be incredible. I think that before rejecting the explanation and unqualified apology as disingenuous or otherwise inadequate, the judge should have put his specific concerns to the appellant and given her an opportunity to address them. I will refer to two examples to make this point.

[42] The judge found that the appellant’s explanation in her letter was inadequate in part because it did not explain why she referred to her client as being in custody “in Ontario” since September 20, 2006 during her sentencing submissions. The judge observed that the appellant must have known that this submission was inaccurate as she knew that her client had been sentenced in Québec a week earlier. It is unclear to me from the record whether the client was ever in custody anywhere other than Ontario except for his court appearance in Québec. If the judge considered the reference during the sentencing submissions to the client being in custody “in Ontario” as potentially undermining the validity of the appellant’s explanation and apology, I think it was incumbent upon him to give the appellant a chance to take the stand and address that concern directly.

[43] The judge drew an inference against the appellant based on the assertion in her letter that the “Quebec sentence had nothing to do with the current matter in Ontario”. The judge noted that the appellant was well aware after speaking to a colleague that the sentence in Québec could have a significant effect on the operation of any sentence imposed in Ontario. In the judge’s view, the appellant could not honestly have believed that the Québec sentence was irrelevant to the matters in Ontario.

[44] Clearly, the judge was right in that the Québec sentence was not totally irrelevant to the Ontario proceedings. What is unclear, however, is exactly what the appellant meant in her letter when she referred to the Québec sentence as having nothing to do with the Ontario matter. There does not appear to have been any factual connection between the Québec and Ontario charges. Indeed, on the Crown’s earlier application to re-open the sentencing proceeding, the judge himself stated, “[T]he matters for which the accused was sentenced in Québec have no bearing to the charges before this Court on October 20, 2006.” Once again, I think that if the judge was inclined to reject the appellant’s explanation and apology as unbelievable and insincere, he should have allowed her the opportunity to explain why she referred to the Québec sentence as having nothing to do with the Ontario proceeding.

[45] In the circumstances of this case, I think a finding that the appellant had the requisite mens rea for contempt could only reasonably be made if the judge rejected her explanation, as buttressed by her apology, for misleading the court. Clearly, a judge is not obliged to accept an explanation or an apology. There is, however, nothing manifestly incredible about the appellant’s explanation or any apparent reason to doubt the sincerity of her apology. I say this having regard to the unchallenged evidence with respect to her inexperience in criminal law matters. It was unreasonable to reject the explanation based on a critical parsing of parts of that explanation without affording the appellant an opportunity to address the specific concerns that the judge had.

[46] Apart from the problems I see with the manner in which the appellant’s explanation and apology were rejected, I am also satisfied that on the uncontested facts as they existed when the submission was made, a finding that the appellant had the necessary mens rea is unreasonable. The appellant barely knew the client. She had no ongoing relationship with him beyond appearing for him on a joint submission, and had no apparent reason to lie to the court on his behalf. The appellant had nothing to gain by doing so and potentially a great deal to lose. To the extent that common sense can be a reliable guide to human behaviour, the appellant’s explanation that her misstatement was the result of her inexperience, lack of expertise, and failure to prepare adequately is much more plausible than the suggestion that she set out to deliberately mislead the court to help a client with whom she had no relationship beyond her very brief appearance to implement a joint sentencing submission.

[47] The nature of the misrepresentation concerning credit for pre-sentence custody also belies a submission that it was done with the intention of causing the court to impose a different sentence than the intended sentence. The client was serving a two-year sentence on the Québec charges that neither the court in Ontario nor the Crown knew anything about. The appellant knew that if the judge said nothing, the sentence he imposed would be concurrent to the Québec sentence. If the sentence was concurrent, the client had nothing to gain by being given credit for pre-sentence custody on a one-year sentence to be imposed in Ontario. Even if the judge had acceded to the request for credit for time served, it would have made no difference to the client as long as the judge did not know about the Québec sentence.

[48] I would have thought that if the appellant wanted to assist the client by getting him a 12-month concurrent sentence in Ontario despite the judge’s intention of imposing a 12-month sentence that was not concurrent to any other sentence, the best way for the appellant to achieve that result would have been to say nothing in the hope that the matter would proceed with the imposition of the agreed upon 12-month sentence. That sentence would become concurrent by the operation of the Criminal Code as long as it was not expressly made consecutive. The submission concerning credit for pre-sentence custody, that had no practical value to the client, could well have precipitated inquiries as to the client’s pre-trial status at the time of the sentencing.

[49] Treating the appellant’s submissions concerning credit for pre-sentence custody as part of a scheme to mislead the judge into imposing a concurrent sentence requires that one assume that the appellant had thought through the various scenarios and decided that the best way to mislead the judge about her client’s status was not by remaining silent, but rather by bringing up the issue of credit for pre-sentence custody in order to hopefully pre-empt any inquiry by the judge as to her client’s custodial status. This strategy makes sense only if one assumes that the appellant was not only prepared to mislead the court, but had chosen a somewhat daring and subtle way of doing so. This strategy also ascribes to the appellant a degree of sophistication in matters relating to criminal sentencing that is inconsistent with her limited experience and her obvious lack of familiarity with concepts like credit for pre-sentence custody, which is evident from the content of her submission quoted earlier in these reasons (see para. 13).

[50] Having regard to the appellant’s letter of explanation and apology, and the circumstances at the time the submission was made, I think it would be unreasonable for a trier of fact to hold that the appellant’s representation concerning credit for pre-sentence custody was made with the mens rea required to justify a finding of criminal contempt.

V

CONCLUSION

[51] The appellant’s inexperience and somewhat cavalier approach to the sentencing proceedings caused the administration of justice to go off the rails when sentencing her client. Fortunately, that error has been rectified. The appellant’s conduct is quite properly the subject of criticism. The appellant’s letter demonstrates that she has come to appreciate her shortcomings in the handling of this matter and that she understands and regrets the significant adverse consequences that flowed from her conduct of these proceedings.

[52] It is one thing, albeit a serious thing, to declare that a lawyer’s inexperience or even incompetence has led to conduct that has frustrated, at least for a time, the proper administration of justice. It is quite another thing, and a much more serious thing, to declare that a lawyer has acted criminally in the discharge of his or her duties by intentionally frustrating the due administration of justice. The judge was fully justified in conducting a full and careful inquiry into the appellant’s actions. With respect, however, having regard to the requisite mens rea, it was unreasonable in all of the circumstances to label the appellant’s conduct as criminal.

[53] I would allow the appeal, quash the conviction and enter an acquittal.

RELEASED: “DD” “JUN 21 2010”

“Doherty J.A.”

“I agree M.J. Moldaver J.A.”

“I agree Robert J. Sharpe J.A.”