Court File and Parties
Court File No.: St. Catharines - 2111-999-10-3416 and 2111-999-10-3383
Date: 2014-01-13
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Michael Pynappels
Before: Justice D.A. Harris
Heard: September 30, 2013
Reasons for Judgment released: January 13, 2014
Counsel:
- S. McCartan, counsel for the Crown
- J. Bothwell, counsel for the Accused, Michael Pynappels
Reasons for Judgment
HARRIS J.:
[1] Michael Pynappels entered guilty pleas to two counts of driving while suspended contrary to section 53(1) of the Highway Traffic Act.
[2] Counsel jointly submitted that a global sentence of imprisonment for 30 days was appropriate.
[3] The presiding Justice of the Peace instead placed him on probation for 18 months.
[4] Crown counsel has appealed against that sentence. Counsel for Mr. Pynappels took no position on the appeal.
[5] The Ontario Court of Appeal has stated the law regarding the treatment of joint submissions quite clearly in R. v. Cerasuolo and R. v. DeSousa.[1]
[6] Resolution discussions between informed and competent counsel and guilty pleas based on joint submissions as to the disposition are a "proper and necessary part of the administration of criminal justice in Ontario".[2]
[7] A trial judge is not bound by a joint submission. The imposition of a fit sentence is ultimately the trial judge's responsibility.
[8] Trial judges must, however, give considerable weight to joint submissions. A trial judge should not reject joint submissions unless the joint submission is contrary to the public interest and the sentence would bring the administration of justice into disrepute.[3]
[9] That standard is applicable regardless of whether a trial judge is inclined to go above or below the sentence proposed in the joint submission.[4]
[10] In R. v. DeSousa Doherty J.A. makes it clear that the factors relevant to the application of that standard will not necessarily be identical in both situations:
If a trial judge is considering imposing a higher sentence than the sentence agreed upon, concerns about the fairness to an accused who has given up a right to a trial in anticipation of a certain sentence will figure largely in the trial judge's determination of whether the agreed upon sentence in the joint submission is so low as to bring the administration of justice into disrepute or is otherwise not in the public interest. Obviously, concerns about the accused's fair trial rights are not in play if the trial judge is considering imposing a sentence that is lower than the agreed upon sentence.[5]
[11] He makes it just as clear however that
where a judge is considering "undercutting" a joint submission, he or she must have regard to the community's reasonable expectations that the court will impose a sentence in accordance with that agreed upon in the joint submission. Confidence in the operation of the justice system may suffer where an accused enjoys the benefits of a plea bargain, perhaps for example escaping prosecution on other more serious charges, but is not required to serve the sentence agreed upon as part of that bargain. In deciding whether to reject the joint submission, trial judges must be alive to that potential negative impact on the administration of justice. The consideration of that potential impact finds expression in the standard articulated in Cerasuolo and the Martin Report.[6]
[12] In her reasons for sentence, the presiding Justice of the Peace stated:
Certainly the court puts great weight on joint submissions and there is direction by the cases in the higher courts that the court should follow joint submissions unless the court feels that the interests of justice would not be served. And given what I've heard today, I find that sentencing this gentleman to 30 days in custody on a third conviction for drive while suspended would be excessive. That does not mean to say that the court does not find there certainly are aggravating circumstances in this matter. First of all, second and third convictions where the offences took place in a very short period of time. The court also must consider there was no harm, no accidents that the court heard, but the court must also consider the potential harm and more suspended drivers are involved in accidents than any other class of I'll say non-driver. There are mitigating factors. There were guilty pleas. That certainly is mitigating. The outstanding fines – if this gentleman has had a serious car accident since 2001 and has been on disability and had an inability to pay his fines, that I would find as a mitigating factor for the non-payment of fines. And I am looking for the case that was of His Honour Nadel, in St. Catharines Ontario Court of Justice …
… an appeal from a 30 day sentence of incarceration for a third conviction of drive while suspended and His Honour Nadel found within the step principle, unless there were other extremely aggravating factors, it was excessive and it didn't follow the step principle in that certainly things should accelerate. What Justice Nadel did in that case, he imposed a $5,000 fine. However, obviously as the prosecution has said and given the submissions, fines are not a deterrent to Mr. Pynappels because he simply can't pay them. The court acknowledges what would be a deterrent to Mr. Pynappels would be a period of incarceration. However, I do not find that his convictions are at that state. At this point however, the court finds that a period of probation at this point would be appropriate and I am going to order a period of 18 months' probation. And sir, could you stand please. It will be on both counts so your sentence will be suspended on each conviction and for both convictions the period will be 18 months. …
[13] The presiding Justice of the Peace stated that the proposed sentence was "excessive".
[14] That was an incorrect standard and fell far short of finding that the joint submission was contrary to the public interest and that the sentence would bring the administration of justice into disrepute.
[15] Further, the sentence was not excessive.
[16] Mr. Pynappels had been convicted of similar offences on three prior occasions and had not paid the fines for any of them.
[17] He then committed the two offences before the court within eight days of each other.
[18] Even when Crown counsel asked that these be treated as a second and third conviction for this offence[7], it could not be said that a sentence of 30 days in jail was outside the range of sentences that might reasonably be imposed.
[19] Mr. Pynappels was represented by competent counsel who did not think the proposed jail sentence was excessive. On the contrary that counsel, who knew as much and possibly more than the presiding Justice of the Peace about the reasons behind the joint submission, agreed that it was the appropriate sentence.
[20] The absence of a collision or actual "harm" does not change that fact. On the contrary, the presence of actual harm might well have justified an even longer period of imprisonment. It was a mistake for the presiding Justice of the Peace to rely on this fact in support of a conclusion that imprisonment for 30 days was excessive.
[21] In any event, the proposed sentence was definitely not contrary to the public interest, nor could it bring the administration of justice into disrepute.
[22] In those circumstances, the decision to undercut the joint submission constituted a reversible error.
[23] Crown counsel agreed that Mr. Pynappels had completed the period of probation and in light of that fact, requested that I dismiss the appeals pursuant to section 122(1)(a) of the Provincial Offences Act.
[24] I agree. The appeals are dismissed.
Released: January 13, 2014
Signed: "Justice D.A. Harris"
Justice D.A. Harris
Footnotes
[1] R. v. Cerasuolo, [2001] O.J. No. 359 (Ont. C.A.); R. v. DeSousa, 2012 ONCA 254, [2012] O.J. No. 1709 (Ont. C.A.).
[2] Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (Martin Report).
[3] Cerasuolo, supra, para. 8.
[4] DeSousa, supra, para. 22.
[5] Ibid, para. 23.
[6] Ibid, para. 24.
[7] Rather than as fourth and fifth convictions.