Court File and Parties

Ontario Court of Justice

Court File No.: Central East - Newmarket 4960-3238360B; 4960-4541100B; 4960-3241498B; 4960-9382688Z

In the Matter of: An appeal under Section 135 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Regional Municipality of York Appellant

— And —

Kenneth Sun, Adam Newhook and Renee Yip Respondents

Before: Justice D.S. Rose

Heard on: April 15, 2016

Reasons for Judgment released on: April 27, 2016

Counsel: Hans Saamen, counsel for the prosecution

No appearance by or on behalf of Kenneth Sun, Adam Newhook or Renee Yip

On appeal from: Sentences imposed by Justice of the Peace A. Romagnoli on November 25, 2015

Reasons for Judgment

ROSE J.:

[1] These three Appeals have the same issue, namely Her Worship's rejection of a joint submission for a $200 fine for traffic offences. In each case Her Worship imposed a lesser fine of $85.00. Because each Appeal raises exactly the same issue I heard all three together. None of the Respondents appeared for the hearing, although each was served with the materials. At the end of oral argument I granted each Appeal and reserved my right to release more fulsome reasons.

[2] There is some history to these cases. In the matters of Adam Newhook and Kenneth Sun each Respondent was stopped by a traffic enforcement officer travelling at speeds for which the officer could have issued a Certificate of Offence for Stunt Driving, but instead chose to reduce the offence at the roadside to merely travelling 49 kilometres per hour over the limit. Each Certificate of Offence bears that information on its face. In the case of Ms. Yip, she was charged with speeding 47 kilometres per hour over the limit at the roadside and her Certificate of Offence bears no endorsement that this was a reduced charge. Each Respondent had two appearances in court before attempting to enter pleas of guilty on September 3, 2015 to the lesser charge of "disobey sign" contrary to s. 182(2) of the Highway Traffic Act (HTA). Each Respondent was represented at the time by a licenced paralegal. Disobey Sign is a reduced charge from the charges laid against each Respondent. In each case a joint submission for a $200 fine was placed before the court.

[3] On September 3, 2015, Her Worship accepted the guilty plea of the Respondent Newhook and adjourned sentencing for 9 months. She then reserved her decision on whether to accept the guilty pleas on the Sun, Yip and Zrdale cases for over 9 months. The Municipal Prosecutor brought an Application for special remedy by way of mandamus to compel Her Worship to impose sentence in the case of Newhook and accept the guilty pleas in the other cases in a more timely fashion. That Application was heard on October 6, 2015. On November 5, 2015, Mr. Justice Edwards granted the mandamus Application and ordered Her Worship to deal with the matters within 30 days see York (Regional Municipality) v. Newhook et al., 2015 ONSC 6587.

[4] On November 25, 2015, Her Worship accepted the guilty pleas of Ms. Yip and Mr. Sun, and sentenced each Respondent. Again, each was represented by the same licenced paralegal who entered the guilty pleas on September 3, 2015. In each case Her Worship did not accede to the joint submission of a $200 fine but instead imposed an $85.00 fine, which is the minimum under the HTA. In each case Her Worship noted that the plea was an early one, there was no record, and it was a minor offence. Her Worship did note the aggravating factor, namely the high rate of speed. Her Worship in each case found that $200.00 was unfair, unreasonable and would bring the administration of justice into disrepute. In the Yip matter, which is representative of each plea, she said:

For the Court to impose a fine higher than the set fine for the offence of disobey sign in the absence of any supporting facts, in my view, is punitive and in this light to accept such unsupported submissions, just because it's joint, is unfair, unreasonable, and in my view, would bring the administration of justice into disrepute.

[5] I pause to note that Her Worship never asked for submissions on this point, namely why something more than the set fine was appropriate before imposing sentence. The failure to supply supporting submissions was therefore through no fault of the parties. Her Worship relied "heavily" on my brother Armstrong J.'s decision in R. v. Dosik, 2006 ONCJ 251. In that case His Honour allowed an appeal against sentence where the trial court imposed the minimum fine, after a trial. This was found to be an error because the sentence imposed did not reflect the gravity of the conduct, and lack of remorse on the part of the accused. It was the failure to consider those factors which led the trial court into error. Justice Armstrong increased the sentence accordingly.

[6] It was an error for Her Worship to see Dosik as a guiding principle which would lead her to reject the joint submission. Indeed, Dosik stands for the proposition that it is an error for the trial court to impose the minimum fine where there were aggravating factors, such as the accused's conduct – which is what happened in the cases at Bar.

[7] More significantly, a joint submission should normally be accepted unless the sentencing judge is "satisfied that the recommended disposition would be contrary to the public interest and would bring the administration of justice into disrepute" (see R. v. Thompson, 2013 ONCA 202). It is an error of principle not to conduct a thoughtful analysis of why the proposed joint submission falls prey to that, and it is an error not to "…forewarn counsel of his intentions or provide them with an opportunity to respond" (see Thompson at para. 16). Neither of those was done in any of the three cases in this appeal, and as such Her Worship erred in imposing a sentence lower than the joint submission. I would add that a sentence of $200 was only $115 above the statutory minimum fine. I can see no reason why the sentence imposed was so markedly different than the joint submission.

[8] Furthermore, there was no consideration by Her Worship of why the quid pro quo was not factored into the ultimate sentence. This reflected an error in principal. As Steele J.A. said in R. v. Sinclair, 2004 MBCA 48 (C.A.), "The clearer the quid pro quo, the more weight should be given an appropriate joint submission by the sentencing judge." All the Respondents had their charges reduced from speeding to a lesser charge. The penalty for the offences as charged would be $343.00 in the case of the Respondents Newhook and Sun, and $329.00 in the case of the Respondent Yip (see HTA s. 128 (14)(c)). A $200 fine was a benefit to the accused. So were the saved demerit points. Speeding between 30 kilometres per hour and 49 kilometres per hour carries 4 demerit points, whereas the offences the Respondents pleaded guilty to under s. 182(2) carry only 2 demerit points. That was on top of the charge being reduced at the roadside from stunt driving to speeding simpliciter for the Respondents Newhook and Sun. The quid pro quo should have been apparent and, if it wasn't, the Prosecutor should have been given an opportunity to explain it.

[9] Accordingly the Appeal against Sentence for all Respondents is allowed and the sentenced increased from $85.00 to $200.00. Each Respondent has 60 days to pay.

[10] I feel obliged to close by pointing out that these three appeals, and the related matter of Marko Zrdale where the Respondent appeared in person at the Appeal and consented to the Appeal, were all heard on September 3, 2015. The successful mandamus application deferred sentencing until November 25, 2015. The failure to accede to the joint submission extended the completion of these matters until April 15, 2016 - over 7 months later. Each of the Appellants merely wished to plead guilty to a relatively minor HTA violation and receive a $200 fine. Given their non-attendance before Mr. Justice Edward on the mandamus hearing or before me, this is a fair inference. This should have been straightforward and efficient for all concerned. The result was anything but that. There have now been two attendances before Her Worship, one before the Superior Court and another before me. Prior to November 25, 2015, Her Worship was provided a copy of the reasons of Edwards J. ordering mandamus where His Honour, in the first paragraph, referred to traffic court as being "a high volume court…designed to give defendants an efficient and timely system for resolution of a provincial offence" (Newhook et al (supra) at para. 1).

[11] I echo Justice Edwards' comments and add that Justices of the Peace perform an admirable job administering front line adjudication on a day to day basis for hundreds of thousands of cases coming before traffic court each year. Part of the reason that Provincial Offences Court runs as efficiently as it does is because it relies on cooperation between the prosecution, defence agents and paralegals, and the accused themselves in order to narrow issues and settle cases in a manner which honours and respects the rights and duties of all involved. Public confidence in the administration of justice can be adversely affected when this is not reflected in the result. As Doherty J.A. said in R. v. DeSousa, 2012 ONCA 254:

24 As alluded to in the extract from the Martin Report …, 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.

[12] Settlement of charges should be encouraged where possible, as was attempted in each of these cases.

Released: April 27, 2016

Signed: "Justice D.S. Rose"