Court File and Parties

Ontario Court of Justice

Date: 2019-11-12

Court File No.: Newmarket 4960 999 19 09680000-00

In the Matter of: An appeal under s. 116(2) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Her Majesty the Queen Appellant

— And —

Farhad Javdani-Golparvar Respondent

Before: Justice David S. Rose

Heard on: November 1, 2019

Reasons for Judgment released on: November 12, 2019

Counsel

Mr. Hamilton — counsel for the prosecution

No appearance by or on behalf of Farhad Javdani-Golparvar, even though notified of time and place.

Background

On appeal from sentence imposed by Her Worship Justice of the Peace A. Romagnoli on June 26, 2019.

Reasons for Judgment

ROSE J.:

[1] The Crown appeals the sentence imposed by Her Worship Romagnoli after the Respondent pleaded guilty to the charge of leaving the roadway safely contrary to section 142(1) of the Highway Traffic Act. The gist of this appeal was that Her Worship undercut a joint submission. After hearing oral argument I allowed the appeal with reasons to follow. These are the reasons.

[2] The Respondent appeared by agent on June 26, 2019. He was originally charged with careless driving but a resolution was arrived at whereby that he would plead guilty to the reduced charge of leaving the roadway not in safety. The Respondent waived arraignment, accepted the facts and pleaded guilty to the amended charge. Her Worship accepted that and convicted the appellant.

[3] The Appellant and Respondent put a joint submission of a $500 fine to the Court with 180 days to pay. Nothing more was said. No submissions were made about the appropriateness of the joint submission or the defendant's personal situation. The Prosecution did not put a prior driving record to the Court. The whole proceeding was brief.

[4] Her Worship then said this:

So, his understanding or the defendant's understanding that it's – it's a $500 fine. Having – having that information I'm also taking into consideration that a victim fine surcharge is added to any fine that the Court imposes and it's done administratively. And certainly it's – it's the understanding of the defendant that the totality of the fine will be $500. So taking into consideration that the victim fine surcharge is unconstitutional for criminal court matters and the legislation struck down under seven – Section 737 of the Criminal Code, however live and well for the provincial offence matters. But I am taking into consideration and I'm basing it on the plea and it appears to be a fairly early plea. This is the second – its third – third appearance. So it's save – certainly saving the court time from having to embark on a trial. Penalty imposed being mindful of the victim fine surcharge is an additional penalty and that's upheld by the higher courts, a fine of $350.00 is appropriate in the circumstances. And 180 days to pay?

[5] Her Worship therefore undercut the joint submission. The original charge, namely Careless Driving carries a minimum penalty of $400.00, and 6 demerit points. The charge the Respondent pleaded guilty to carries a minimum penalty of not less than $60.00 and 2 demerit points. In pleading guilty the Respondent therefore took the benefit of fewer demerit points than the charge initially laid, but a fine much beyond the minimum of the amended charge. There was, therefore, a quid pro quo to the Respondent in resolving the case as agreed upon.

[6] When a joint submission is put before the Court on sentence it is entitled to deference. Undercutting a joint submission is required if the proposed sentence is contrary to the public interest, see R. v. Anthony-Cook 2016 SCC 43 at para. 52. It is a high threshold. As Kenkel J. said in R. v. Alakoozi 2015 ONCJ 763 (at para. 7), "this high threshold ensures that both parties have confidence in resolving a case without a trial and that the many factors that were considered in arriving at the joint position are respected." Alakoozi was a case where Her Worship undercut a joint submission without sufficient basis.

[7] Rejection of a joint submission "…denotes a submission which is so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons ... to believe that the proper functioning of the justice system had broken down" see (Anthony-Cook at para. 34).

[8] Furthermore, the Court in Anthony-Cook was clear (at para. 58) that if the sentencing Court is not satisfied with the joint submission fundamental fairness requires that, "The judge should notify counsel that he or she has concerns, and invite further submissions on those concerns, including the possibility of allowing the accused to withdraw his or her guilty plea…."

[9] The failure of Her Worship to invite further submissions from both prosecution and defence about the appropriateness of the joint submission prior to undercutting it was therefore an error in principle. On its face the proceedings in this appeal involved a guilty plea to a lesser charge for an increased penalty. That cried out for an explanation by the parties prior to undercutting their submission. That error in principle vacates any deference which is otherwise afforded the sentence. It was also an error to undercut the joint submission without making a finding that the joint submission was contrary to the public interest.

[10] I would not leave this issue without commenting on Her Worship's comments about the victim fine surcharge. Under the Provincial Offences Act R.S.O. 1990 c. P.33 O.Reg 161/00 there is a set table of mandatory victim fines which accrue upon conviction for offences prosecuted under that statute. In this case the mandatory victim fine surcharge was $110.00.

[11] Without being directed to the issue by either the prosecution or defence Her Worship tied the invalidity of the Criminal Code victim fine surcharge from R. v. Boudreault 2018 SCC 58 with the joint submission.

[12] Even if the POA victim fine surcharge was alive and well for the case before her, she appears to have taken the Criminal Code litigation over the victim fine surcharge into consideration. This too was an error, for a number of reasons. First, the parties didn't raise the issue, and Her Worship appears to have infused the sentencing reasons with an extraneous issue all on her own. Secondly, the Criminal Code victim fine surcharge had nothing to do with this case. Third, as her Worship recognized, the POA victim fine surcharge was entirely valid in law. Her Worship's comparison of it to s. 737 of the Criminal Code gives the impression that a mandatory piece of regulation such as O.Reg 161/00 is suspect, or of dubious value. That was an error. Absent a constitutional challenge, valid legislation is to be implemented and not questioned. Comments like these which question a valid regulation only work to undermine the rule of law.

[13] Four years ago, in Alakoozi (supra at para. 19), Justice Kenkel cautioned Her Worship Romagnoli that the unreasonable and arbitrary rejection of joint submissions "…must not continue." It appears that it has.

[14] For these reasons the appeal is allowed, and the original sentence quashed. The original sentence of a $500.00 fine is imposed with 180 days to pay.

Released: November 12, 2019

Signed: Justice D.S. Rose