Her Majesty the Queen v. Montesano

[Indexed as: R. v. Montesano]

Ontario Reports Court of Appeal for Ontario Watt, Huscroft and L.B. Roberts JJ.A. March 12, 2019

145 O.R. (3d) 474 | 2019 ONCA 194

Case Summary

Criminal law — Appeals — Summary conviction appeals

Accused appealing sentence to summary conviction appeal court. Notice of appeal not indicating whether appeal was taken under s. 813 or s. 830 of Criminal Code. Appeal from sentence in summary conviction proceedings necessarily taken under s. 813(a)(ii) as s. 830 containing no reference to sentence appeals. Appeal judge not having jurisdiction to remit matter to trial court for sentencing hearing after allowing appeal.

Criminal law — Sentencing — Evidence

Accused pleading guilty to assaulting his wife. Accused having received absolute discharge for previous assault on his wife. Sentencing judge refusing to grant second discharge on basis that first discharge had not deterred accused from committing another domestic assault. Sentencing judge erring in taking absolute discharge into account. Section 6.1(1)(a) of Criminal Records Act precluding disclosure of existence of absolute discharge to any person beyond one year after its imposition without prior approval of minister. Crown permitted to refer to "factual reality" that incident accused pleading to "not the first incident". Not appropriate to impose discharge given admitted prior domestic assault and aggravating feature that present offence being against domestic partner. Accused sentenced to a suspended sentence and 12 months' probation.

Facts

The accused pleaded guilty in 2016 to assaulting his wife. A handwritten notation on his criminal record indicated that he had received an absolute discharge in 2011 for a previous assault on his wife. The trial judge declined to grant the accused a second discharge on the basis that the first discharge had not deterred him from committing another domestic assault. The trial judge imposed a suspended sentence with 12 months' probation. The summary conviction appeal court allowed the accused's appeal, holding that the trial judge erred in considering the accused's discharge. She remitted the matter to the Ontario Court of Justice for a sentencing hearing. The Crown appealed.

Decision

Held: The appeal should be allowed in part.

Section 6.1(1)(a) of the Criminal Records Act precludes the disclosure of "the existence and fact" of an absolute discharge to anyone beyond one year following its imposition, unless the prior approval of the Minister of Public Safety and Emergency Preparedness is obtained. No such approval was obtained in this case. The trial judge therefore erred in taking the accused's discharge into account. However, the Crown was entitled to put before the court "the factual reality that the incident on which there has been a plea is not the first incident".

The notice of appeal to the summary conviction appeal court did not indicate whether the appeal was taken under s. 813 or s. 830 of the Criminal Code. However, a sentence appeal in summary conviction proceedings is necessarily taken under s. 813(a)(ii). The summary conviction appeal court judge therefore had the authority to vary the sentence or dismiss the appeal, but not the authority to remit the matter to the trial court for a sentencing hearing. The remittal order was set aside.

Section 718.2(a)(ii) of the Code, which was in force when the accused was sentenced, makes abuse of an offender's spouse or common law partner an aggravating factor. That, combined with the fact of the admitted 2011 assault, rendered a conditional discharge inappropriate. A suspended sentence and a 12-month probation order were imposed.

Cases Referred To

• R. v. Bevis, [2000] N.S.J. No. 351, 2000 NSCA 125, 188 N.S.R. (2d) 163, 150 C.C.C. (3d) 125, 48 W.C.B. (2d) 6

Statutes Referred To

• Criminal Code, R.S.C. 1985, c. C-46, ss. 2, 687, 718.2(a)(ii), Part XXVII, ss. 812(1)(a), 813(a)(ii), 822(1), (4), (6), 829(1), 830(1), 831, 832, 833, 834(1)(b), 835, 836, 837, 838, 839
• Criminal Records Act, R.S.C. 1985, c. C-47, ss. 6.1(1)(a), 7.2

Counsel

Rebecca De Filippis, for appellant.

Nicolas M. Rouleau and Daniel Ciarabellini, for respondent.

Reasons for Decision

Introduction

[1] BY THE COURT: -- The Crown appeals from the order of the Summary Conviction Appeal Court judge (the "appeal judge"), granting the respondent's appeal from sentence.

[2] On June 30, 2016, the respondent pleaded guilty to one count of assault against his wife. There was only one entry on the respondent's criminal record for a dated and unrelated mischief charge. However, a handwritten notation indicated that in 2011, the respondent had obtained an absolute discharge for a previous assault against his wife. No further details were provided.

[3] The trial judge determined that it would be inappropriate to grant the respondent a second discharge, given that the first discharge had not deterred him from the commission of the second domestic assault against the same victim, and imposed a suspended sentence with a 12-month probationary period.

[4] The appeal judge concluded that the trial judge erred in considering the respondent's discharge. She held that it was inadmissible because it had been expunged from his record pursuant to s. 6.1(1)(a) of the Criminal Records Act, R.S.C. 1985, c. C-47 (the "CRA"). The Crown was entitled to put before the court the factual reality of the incident -- the fact that this was not the first incident -- but nothing more. The appeal judge allowed the respondent's appeal and remitted the matter to the Ontario Court of Justice (the "OCJ") for sentencing.

[5] Leave to appeal was granted by this court on October 3, 2018.

[6] The Crown submits that the appeal judge erred in two respects. First, her interpretation of s. 6.1(1)(a) is overly broad because the CRA applies only to records maintained by the federal government, not courts or police, and does not establish an "all-encompassing" rule governing the admissibility of evidence on sentencing. All reliable and relevant evidence is admissible for sentencing purposes. Second, the Crown argues that the appeal judge had no jurisdiction to remit the matter to the OCJ for a new sentencing hearing.

[7] The appeal is allowed in part for the reasons that follow.

A. The Disclosure Issue

[8] Section 6.1(1)(a) of the CRA provides as follows:

6.1(1) No record of a discharge under section 730 of the Criminal Code that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be disclosed to any person, nor shall the existence of the record or the fact of the discharge be disclosed to any person, without the prior approval of the Minister, if

(a) more than one year has elapsed since the offender was discharged absolutely[.]

[9] In our view, the language of the provision is plain. Section 6.1(1)(a) of the CRA precludes the disclosure not only of the record, but also of the existence and fact of an absolute discharge beyond one year following its imposition, unless the prior approval of the Minister of Public Safety and Emergency Preparedness is obtained.

[10] The time-limited relevance of discharges may be contrasted with the treatment of record suspensions under s. 7.2 of the CRA. Unlike absolute discharges, which may be considered without ministerial approval only for a period of one year after imposition, record suspensions are automatically revoked upon a subsequent conviction, whenever it occurs, and so may be disclosed without approval.

[11] The prohibition on disclosure of discharges is complete. Section 6.1(1)(a) of the CRA precludes disclosure not to selected persons but to any person. It is of no moment whether the record remains in provincial record bases; it cannot be disclosed without the minister's prior approval, and that approval was not obtained in this case prior to sentencing by the trial judge. The appeal judge properly concluded that the trial judge erred in considering the respondent's absolute discharge, although the Crown was entitled to put before the court "the factual reality that the incident on which there has been a plea is not the first incident".

B. The Remittal Issue

[12] The second ground of appeal relates to the disposition ordered by the appeal judge. After determining that the sentencing judge had erred in taking into account the previous discharge in imposing sentence, the appeal judge remitted the case to the OCJ for sentencing.

[13] The appellant says that the appeal judge had no authority to remit the case to the OCJ for sentencing. On appeals from sentence in summary conviction proceedings, an appeal judge, like this court in sentence appeals in indictable proceedings, may only dismiss the appeal or vary the sentence within the limits prescribed by law.

[14] The respondent contends that the argument advanced by the appellant assumes that the appeal from sentence was taken under s. 813(a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, thus making s. 822(6) the statutory provision that governs disposition of the appeal and forecloses the remittal order made by the appeal judge. But the notice of appeal makes no mention of s. 813 as the right of appeal invoked. And since the remittal order could be made under s. 834(1)(b) of the Criminal Code on an appeal taken under s. 830(1), we should assume that this was an appeal taken under s. 830(1), rather than under s. 813(a)(ii). At all events, we should determine a fit sentence on appeal.

[15] Part XXVII of the Criminal Code governs summary conviction proceedings including appeals from decisions rendered at summary conviction trials. It contains two sections providing rights of appeal: ss. 813 and 830(1).

[16] Under s. 813(a), a defendant in summary conviction proceedings may appeal to the "appeal court" as defined in s. 812(1)(a):

(i) from a conviction or order made against him;

(ii) against a sentence passed on him; or

(iii) against a verdict of unfit to stand trial or not criminally responsible on account of mental disorder.

[17] The dispositive authority on appeals from sentence, at least those not heard by trial de novo under s. 822(4), is that of s. 687 of the Criminal Code. This is so because s. 822(1) incorporates s. 687 by reference. As a result, the authority of an appeal judge on appeals from sentence under s. 813(a)(ii), unless the sentence is one fixed by law, is to consider the fitness of the sentence and

(i) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or

(ii) dismiss the appeal.

[18] The summary conviction appeal court has no authority to remit a sentencing determination to the trial court on appeals from sentence under s. 813(a)(ii).

[19] Under s. 830(1), a party to summary conviction proceedings may appeal against a

• conviction
• judgment
• verdict of acquittal
• verdict of NCRMD
• verdict of unfit to stand trial
• other final order or determination

on grounds of legal or jurisdictional error. The term "sentence" nowhere appears in s. 830(1) or elsewhere in ss. 829-838, the portion of Part XXVII that deals with "Summary Appeal on Transcript or Agreed Statement of Facts".

[20] The dispositive authority of the "appeal court" as defined in s. 829(1) of the Criminal Code for appeals taken under s. 830(1) is in s. 834(1), which provides:

834(1) When a notice of appeal is filed pursuant to section 830, the appeal court shall hear and determine the grounds of appeal and may

(a) affirm, reverse or modify the conviction, judgment, verdict or other final order or determination, or

(b) remit the matter to the summary conviction court with the opinion of the appeal court,

and may make any other order in relation to the matter or with respect to costs that it considers proper.

[21] In R. v. Bevis, [2000] N.S.J. No. 351, 2000 NSCA 125, 150 C.C.C. (3d) 125, the appellant, convicted of breach of a recognizance in summary conviction proceedings, appealed the sentence imposed upon him to the Nova Scotia Court of Appeal. As in this province, the definition of "superior court of criminal jurisdiction" in s. 2 of the Criminal Code and thus for the purposes of appeals under s. 830(1), includes the court of appeal. The Nova Scotia Court of Appeal dismissed the appeal. The substance of their reasons for doing so appears in paras. 8-9 of the reasons given by Hallett J.A.:

The avenue for an appeal from sentence in summary conviction proceedings is to the Supreme Court of Nova Scotia in the first instance. Had Parliament intended that there be an appeal directly to the Nova Scotia Court of Appeal from sentence in a summary conviction proceeding, it would have so provided in s. 830. The absence from s. 830 of an expressed right to appeal sentence directly to the Nova Scotia Court of Appeal speaks clearly as to Parliament's intention. In my opinion, the words "other final order or determination of a summary conviction court" as they appear in s. 830, read in context, do not include within their meaning a sentence imposed in a summary conviction proceeding.

This being a sentence appeal, the appellant ought to have appealed the sentence to the Supreme Court of Nova Scotia pursuant to the right he had by reason of s. 813(a)(ii).

[22] In this case the notice of appeal to the summary conviction appeal court does not specify the right of appeal the appellant invokes. That said, the appeal is against "sentence" and the relief sought is a variation of the sentence imposed at trial. In these circumstances, we are satisfied that this appeal was taken under the specific authority of s. 813(a)(ii). It follows that the appeal judge had the authority to dismiss the appeal or vary the sentence within the limits provided by law, but no authority to remit the matter to the trial court.

[23] In future cases it may be helpful to include in the notice of appeal a brief reference to the jurisdictional basis for the appeal so that the scope of appellate relief available is readily ascertainable. We consider such a course a matter of good practice, not a condition precedent to a valid notice of appeal.

C. Determining the Sentence

[24] The respondent submits that regardless of the decision on the second ground of appeal, for the sake of judicial economy, this court should determine the appropriate sentence rather than remitting it for a rehearing.

[25] We agree.

[26] We accept that the respondent has made progress since the assault: he has expressed remorse; has taken steps to address his alcohol abuse; has completed a Partner Assault Response Program; and has reconciled and attended counselling with his wife.

[27] However, s. 718.2(a)(ii) of the Criminal Code, which was in force in 2016 when the respondent was sentenced, makes abuse of an offender's spouse or common-law partner an aggravating factor. This, combined with the fact of his admitted 2011 assault against his wife, renders a conditional discharge inappropriate in these circumstances, despite the mitigating effect of his guilty plea.

[28] Accordingly, we allow the appeal in part and set aside the appeal judge's order remitting this matter for a sentencing hearing. We impose a suspended sentence and 12-month probation period in accordance with the terms set out by the trial judge. The other terms and conditions of the sentence imposed by the trial judge remain in place.

Appeal allowed in part.