Ontario Court of Justice

Date: 2015-12-11

Court File No.: The Regional Municipality of York 4911-9362601Z

Between:

Her Majesty the Queen ex rel. The Regional Municipality of York

— AND —

Slaimon Alakoozi

Before: Justice J.F. Kenkel

Heard on: December 11, 2015

Reasons released on: December 11, 2015

Counsel:

• Mr. Hans Saamen, counsel for the Appellant
• No appearance by or on behalf of the Respondent, Slaimon Alakoozi

KENKEL J.:

Facts and Procedural History

[1] The respondent was charged with speeding 104 km/h in a 60 km/h zone contrary to s. 128 of the Highway Traffic Act. At trial before Justice of the Peace A. Romagnoli, he entered a plea of guilty to a lesser charge of disobeying a sign contrary to s. 182(2) of the Highway Traffic Act. There was a joint submission for a $100 fine. The court did not accept the joint submission and invited both parties to call evidence with respect to the proposed sentence. They both declined.

[2] The Learned Justice of the Peace stated that she was not bound by joint submissions. The Regional Prosecutor referred Her Worship to R. v. Mizra [2015] OJ No. 984 (CJ), a provincial offence appeal decision on the point at issue. Her Worship stated, "I'm not bound by that decision".

[3] The prosecutor attempted to refer the court to the principle of stare decisis and the following exchange ensued:

Mr. Gabriel: You're not bound by a higher court decision?

The Court: I'm not … bound by a joint submission

Mr. Gabriel: So, your Worship, I'm just – sorry – obviously there must be a case from a high level of court ….

The Court: Would you like to take a few moments and consider your comments? Because I find that you're out of line.

Mr. Gabriel: Your Worship, stare decisis, it's a simple legal principle that courts are bound ….

The Court: You're out of line …

[4] Later the Learned Justice of the Peace stated that the Regional Prosecutor was argumentative and his behaviour in the passage noted above was so disruptive to the entire courtroom that the court had to recess. "You refused to listen. And if this manner of behaviour persists, you leave the court no alternative but to hold you in contempt …"

[5] The court adjourned sentencing from August 18th to September 8th, 2015, then to October 15th. On October 15th, the respondent was sentenced to an $85 fine. The court gave lengthy reasons including:

The prosecutors in dealing with these types of matters in this Region are very inconsistent. The joint submission on penalty are not supported and do not reflect fairness throughout. To impose a higher fine than the set fine without any supporting facts in my view is punitive.

[6] The Region appeals, submitting that the Learned Justice of the Peace erred in law in not imposing the jointly submitted sentence. The respondent advised the Region that they would not be appearing to contest the appeal.

Joint Submissions

[7] Trial judges should not reject joint submissions unless the proposed sentence is contrary to the public interest and would bring the administration of justice into disrepute. R. v. Cerasuolo, [2001] OJ No. 359 (CA) at para. 8. This high threshold ensures that both parties have confidence in resolving the case without a trial and that the many factors that were considered in arriving at the joint position are respected.

[8] It's unfortunate that the learned Justice of the Peace did not permit the prosecutor to make submissions with respect to the provincial offence appeal decision in R. v. Mizra [2015] OJ No. 984 (CJ). That case involved a similar refusal to impose a modest fine upon joint submission and at paragraph 8 Justice Chisvin explained the appropriate legal test.

[9] On October 15th, Her Worship provided lengthy reasons for rejecting the joint submission and reducing the fine by $15. Her central reason set out above at paragraph 5 is a concern that prosecutors are being inconsistent in their sentencing submissions. She found "this was a very early guilty plea" and that the charge was "very minor". Her Worship did not refer to any case setting out the legal standard for rejecting a joint submission, but she did find that the sentence proposed in this case "would bring the administration of justice into disrepute".

[10] The "very early" plea came on the day of trial over a year after the charge was laid. The original offence of 104 km/h in a 60 km/h zone at trial typically results in a total payable fine of $388 plus 4 demerit points. The plea to the reduced offence resulted in a reduction in fine to $100 and only 2 demerit points.

[11] The fact that sentences vary is to be expected. Each offender is different and each case is different. The age of the offender, prior driving abstract, circumstances of the offence and the practical matter of prosecution priorities on a given trial day are all considered in arriving at a joint submission.

[12] Provincial offences courts have extremely busy dockets. It's not unusual to have 80 charges or more per day in their trial courts. In that context it's important that parties who wish to resolve their cases do so with the knowledge that the sentences proposed and the considerations that go into those proposals will be respected by the courts.

[13] The finding that the joint submission was unreasonable and likely to bring the administration of justice into disrepute was in error. It's not sufficient to simply repeat the words of a legal test, that test must be properly applied. I agree with the appellant that there was nothing about the jointly submitted sentence in this case that could reasonably have brought the administration of justice into disrepute. The minor variation ($15) the court ultimately arrived at shows that there was nothing about the original submission that would justify interference by the court.

Stare Decisis

[14] The Regional Prosecutor was right to attempt to bring the court's attention to the provincial offence appeal decisions that would have helped Her Worship avoid the errors in this case. There was no basis to caution Mr. Gabriel that he was "out of line", no reason to make comments about his personal appearance, and no basis to threaten him with contempt of court.

[15] The case the prosecution was attempting to provide to the court spoke directly to the circumstances present in this case. The Mirza case involved the rejection of a joint submission for a $110 fine also by this same learned Justice of the Peace.

[16] In fact, this is the fourth appeal on similar facts where a provincial offence appeal court has overturned decisions of Her Worship on the same point:

• R. v. Mirza [2015] OJ No. 984 (CJ) February 13, 2015
• R. v. Wong [2015] OJ No. 983 (CJ) February 19, 2015
• R. v. Chmiel OCJ Newmarket July 17, 2015 (Unreported)

[17] It's troubling that the court said to the prosecutor "I'm not bound by that decision" in relation to the decision in Mirza. The prosecutor was right to attempt to remind the court of the principle of stare decisis.

[18] The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system. Carter v. Canada (Attorney General) 2015 SCC 5 at para. 44. While the court later mentioned part of the legal test to set aside a joint submission as instructed in Mirza, as discussed above it's not sufficient to merely repeat the words of a legal test, the principles must be properly applied.

[19] The rejection of the joint submission in this case was unreasonable and arbitrary. It was contrary to binding authority including three prior cases involving this Justice of the Peace. The whole of the proceedings show a miscarriage of justice. This must not continue.

Conclusion

[20] The appeal is granted. The fine is varied to $100 as originally proposed by the parties.

Released: December 11, 2015

Justice J.F. Kenkel