Ontario Court of Justice

Date: 2020-03-04

Court File No.: Newmarket, Central East 18-09311

Between:

Her Majesty the Queen

— AND —

Caterina Petrolo

Before: Justice D.A. Harris

Heard on: November 19, 20, 21, 22, 26, 27, 28 & 29, & December 9, 2019 & February 5, 2020

Reasons for Sentence released on: March 4, 2020

Counsel:

• Peter Scrutton and Mabel Lai, for the Crown
• Alan D. Gold and Alex I. Palamarek, for the defendant

D.A. HARRIS J.:

INTRODUCTION

[1] Following trial, I convicted Caterina Petrolo of one count of breach of trust by a public officer, contrary to section 122 of the Criminal Code, and one count of attempt to obstruct, pervert, or defeat the course of justice, contrary to section 139(2) of the Criminal Code.

[2] These are indictable offences.

[3] Ms. Petrolo is before me today to be sentenced.

[4] Crown counsel suggested that I should impose a conditional sentence of imprisonment for nine months.

[5] Counsel for Ms. Petrolo suggested that I impose a conditional discharge with probation for six months.

[6] I find that a conditional sentence of imprisonment for three months is the appropriate sentence.

[7] My reasons for this are set out under the following headings:

• (1) The law regarding conditional discharges,
• (2) The law regarding conditional sentences of imprisonment,
• (3) The fundamental purpose and principles of sentencing,
• (4) The facts underlying the offences,
• (5) The background of Ms. Petrolo, and
• (6) Analysis.

CONDITIONAL DISCHARGE

[8] Section 730(1) of the Criminal Code provides that:

Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

[9] There is no minimum sentence here. The offence is not punishable by imprisonment for 14 years or life. So, I can grant Ms. Petrolo a conditional discharge if I consider it to be in her best interests and not contrary to the public interest.

[10] In Regina v. Sanchez-Pino, the Ontario Court of Appeal stated that:

16 ...In my view, the primary purpose of Parliament in enacting that section was to provide that an individual, although found guilty of what may loosely be described as a "less serious" offence, would not have a conviction recorded against him in all cases. In other words, he would not "have a criminal record" as a result of the occurrence.

17 The trial Judge in this case was right in saying that the guide-lines are meagre. The section does not apply to corporations, nor to offences for which a minimum sentence is prescribed, nor to offences punishable, in the very proceedings, by imprisonment for 14 years or for life or by death. The granting of some form of discharge must be "in the best interests of the accused". I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions. It must not be "contrary to the public interest" to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence -- a standard part of the criteria for sentencing.

18 Obviously the section is not confined to "simple cases of possession of marijuana". It is not confined to any class of offences except to the extent I have noted. On the other hand, it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is "not contrary to public interest". In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender.

[11] In R. v. Fallofield, the British Columbia Court of Appeal made a number of observations regarding the discharge provisions, including the following:

• (1) Discharges are not limited to technical or trivial violations;
• (2) Generally, the requirement that a discharge would be in the best interest of the accused would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions; and
• (3) While the public interest in the deterrence of others must be given due weight, it does not preclude the judicious use of the discharge provisions.

[12] In R. v. Meneses, the Ontario Court of Appeal took into account:

• (1) that the appellant was a widow with children;
• (2) that she had a good standing in the community;
• (3) that she had no criminal record;
• (4) that her misconduct was an isolated one and out of keeping with her past good character; and
• (5) that a conviction might have a detrimental effect on her ability to obtain gainful employment in the profession of dentistry of which she already has some expertise.

[13] It was in the public interest for this woman to be given every opportunity to become a useful person in the community and earn a livelihood for herself and her family.

[14] Further:

The argument that a conviction and fine against this accused must stand to effect a more apparent deterrent to others must give way when other considerations are more paramount, and when the broad view of the public interest is considered. In our opinion, the knowledge of speedy apprehension, arrest and trial should be an effective deterrent to persons such as the accused who may be tempted to commit such an offence. A conviction and a fine would not be a deterrent to a professional shoplifter, but, of course, such a person would not receive either an absolute or conditional discharge.

[15] Finally:

It is always to be borne in mind that a person who is granted a conditional discharge does not go scot-free after committing the offence. In this case the accused is subject to the terms of the probation order, and in the event that the terms of the probation order are met, she will have earned her discharge.

[16] In R. v. Carson, the Ontario Court of Appeal stated that:

The sentencing judge rejected certain of the Crown's submissions concerning sentence on the basis that they would have an unnecessarily harsh impact on the appellant's prospects to continue his employment as a police officer. This is a legitimate factor, among others, to be taken into account at a sentence hearing. Neither the appellant's personal interest nor the societal interest would be served by the imposition of a sentence, not otherwise warranted, that would preclude the appellant's continued employment as a police officer.

[17] There are of course limits on how far this may be taken. In R. v. Swierszcz, the Ontario Court of Appeal stated that, "The fact that a person may suffer professional consequences cannot justify the imposition of a sentence that is outside of the appropriate range". The Court of Appeal allowed the Crown appeal since a conditional discharge was far outside of the range appropriate for the kind of criminal conduct in that case.

[18] That does not however take away the fact that, subject to the above limitation, collateral consequences, such as a negative impact on employment, are a legitimate factor to be considered when determining the appropriate sentence.

[19] I also note the following comments by Justice Hill of the Ontario Superior Court of Justice in two summary conviction appeals:

• (1) Discharges are not restricted to trivial matters;
• (2) Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction;
• (3) Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration;
• (4) A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge.

CONDITIONAL SENTENCE OF IMPRISONMENT

[20] The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.

[21] The Supreme Court of Canada subsequently stated in R. v. Proulx that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."

[22] The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. Her liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

[23] Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:

1. the offender must be convicted of an offence that is not specifically excluded by the legislation;
2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
3. the court must impose a term of imprisonment of less than two years;
4. the safety of the community would not be endangered by the offender serving the sentence in the community; and
5. a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[24] The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[25] In Ms. Petrolo's case, the first four prerequisite criteria have been satisfied.

[26] Her offences were not excluded pursuant to section 742.1 at the time that she committed that offence.

[27] Nor are they punishable by a minimum term of imprisonment.

[28] Counsel agreed, as do I, that I should impose a sentence of imprisonment for much less than two years.

[29] Finally, I find that Ms. Petrolo serving her sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. She had no prior criminal record. She has not been in any further trouble since being charged. Her offence was committed under circumstances that are unlikely to occur ever again. I am satisfied that there is no danger that she would return to crime following the imposition of a conditional sentence.

[30] That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code. I must also consider the fundamental purpose and principles of sentencing in order to determine whether a conditional discharge would be appropriate in the particular circumstances of this case.

FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING

[31] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[32] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[33] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[34] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

[35] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[36] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[37] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[38] Section 718.2(a)(iii) provide that evidence that an offender, in committing an offence, abused a position of trust or authority in relation to the victim, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

[39] Section 718.2(d) provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[40] The Supreme Court of Canada noted in Gladue v. The Queen that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community.

[41] The maximum sentence for breach of trust is imprisonment for five years.

[42] The maximum sentence for attempting to obstruct justice is imprisonment for ten years.

[43] Counsel for Ms. Petrolo has provided me with a chart summarizing a number of sentencing cases involving attempting to obstruct justice and another chart summarizing a number of sentencing cases involving breach of trust. Counsel also provided me with copies of each of those cases.

[44] With respect to the attempting to obstruct justice cases, one resulted in a conditional discharge, two resulted in a suspended sentence, seven resulted in conditional sentences ranging from 30 days to nine months, and one resulted in imprisonment for 18 months.

[45] With respect to the breach of trust cases, two resulted in a conditional discharge, two resulted in a suspended sentence, and four resulted in conditional sentences ranging from four to 18 months.

[46] Crown counsel provided me with a casebook containing four cases. The sentences imposed in these cases (and other cases referred to in them) ranged from a conditional sentence of imprisonment for six months to imprisonment for three years.

[47] None of the cases referred to by either counsel were exactly the same as this one. They are therefore helpful insofar as they set out the relevant principles in such cases, and serve to establish a range of possible sentences, but no more than that.

[48] Before applying these principles, I must take into account the facts underlying the offences and the background of Ms. Petrolo.

THE OFFENCES

[49] My findings with respect to the facts of the offences are set out at some length in my Reasons for Judgment and I will not repeat them here.

BACKGROUND OF MS. PETROLO

[50] I was provided with the following information about Ms. Petrolo.

[51] She is 37 years old.

[52] She was born in Toronto, Ontario. She is the youngest of two children to Italian immigrants. She grew up in the North York area of Toronto with her parents and older brother.

[53] She attended St. Basil's high school in Toronto and graduated in 2000.

[54] From 2003 to 2006, she worked as a parking enforcement clerk for the City of Vaughan. From 2004 to 2012 she worked as a court clerk at the Provincial Offences Act courthouse located at 50 High Tech Road in Richmond Hill.

[55] While working as a court clerk, in 2009 Ms. Petrolo went back to school and enrolled in Paralegal Studies at Seneca College. She graduated in 2012 and became a licensed paralegal with the Law Society of Ontario that same year. Once she became a paralegal, she began working as a Regional Prosecutor at the 50 High Tech Road courthouse in Richmond Hill.

[56] While working as a prosecutor, she was well-liked by her colleagues and had never been the subject of disciplinary action prior to her Criminal Code charges being laid.

[57] Her employment with York Region was suspended following her arrest on October 10, 2018. On October 25, 2018, her employment with York Region was terminated. At that time, she had been earning approximately $100,000 in annual salary.

[58] In January 2019, the Law Society of Ontario brought an interlocutory motion seeking to suspend or restrict her practice as a paralegal. In June 2019, the Law Society issued an order restricting Ms. Petrolo's practice, requiring her to work under a paralegal.

[59] Since July 2019, Ms. Petrolo has been practicing as a paralegal at Traffic Ticket Experts, working for senior paralegal Mr. Paul Martin in assisting with his defence of people charged with committing traffic offences under the Highway Traffic Act. In that capacity, she earns an annual salary of approximately $20,000.

[60] As a result of the investigation of these offences, the substance of Ms. Petrolo's private communications became known to people at her place of work. Particularly, it became commonly known that Ms. Petrolo had been conversing with particular individuals in her private life.

[61] She has also received extensive negative media coverage since being charged in October 2018.

[62] She has no other criminal record.

[63] The seven reference letters filed make it clear that she was seen to be a hardworking, reliable person of commendable character.

[64] She has always been an active volunteer within the community.

ANALYSIS

[65] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge.

[66] Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation."

[67] The primary objectives in sentencing Ms. Petrolo, a first offender, are individual deterrence and rehabilitation, but general deterrence and denunciation are clearly important principles of sentence given the seriousness of the offences.

[68] I must craft a sentence that is proportionate to the gravity of the offences committed and the degree of responsibility of Ms. Petrolo and yet, at the same time, one that is responsive to her unique circumstances.

[69] I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.

[70] The aggravating factors can be found in the facts of the offences themselves.

[71] On two separate occasions Ms. Petrolo arranged for favourable dispositions of traffic tickets for friends of her then boyfriend. In doing so she breached the trust placed in her and attempted to obstruct justice.

[72] I do note the absence of more aggravating features which are present in many other cases. She did not do this for financial gain. She was simply doing favours for friends of her friend. Further, her actions were less serious than the offences in those other cases.

[73] There are mitigating factors.

[74] She has no prior criminal record.

[75] She was a person of otherwise good character.

[76] The amount of mitigation that can be derived from these facts is diminished however when one considers the fact that it was these very qualities which led to her being in a position to breach the trust placed in her.

[77] There have been significant collateral consequences.

[78] She was fired from her job. The Law Society of Ontario has placed restrictions on her employment as a paralegal and she could face further sanctions in that regard.

[79] There has been extensive negative media coverage of her case.

[80] She has expressed remorse for what she has done.

[81] I note that in the cases referred to by counsel for Ms. Petrolo, conditional discharges were granted only in circumstances where the accused person had pled guilty, thereby entitling them to a reduction in what would have been an otherwise fit sentence. Ms. Petrolo is, of course not entitled to such treatment.

[82] After considering all of the above, I am satisfied that a conditional discharge would be contrary to the public interest. It would not give due weight to the aggravating circumstances present in this case.

[83] I am also satisfied that a suspended sentence would be insufficient. A sentence of jail could have been imposed here.

[84] However, I am satisfied that a conditional sentence of imprisonment would be consistent with the fundamental purpose and principles of sentencing and that the appropriate length of this conditional sentence is three months.

SENTENCE

[85] For all of the above reasons, I sentence Ms. Petrolo to concurrent conditional sentences of imprisonment for three months, to be served in the community.

[86] The terms of the conditional sentences of imprisonment will require that she:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. report in person to a supervisor immediately and thereafter report when required by the supervisor and in the manner directed by the supervisor;

4. notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation;

5. remain within the Province of Ontario unless written permission to go outside the province is obtained from the court or the supervisor;

6. cooperate with her supervisor. She must sign any releases necessary to permit the supervisor to monitor her compliance and she must provide proof of compliance with any condition of this order to the supervisor on request;

7. live at a residence in Toronto, Ontario, or a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance;

8. a home confinement condition will be in effect for the first month of the sentence. During that time, she will remain in her residence at all times except:

   • (a) between 1 pm and 5 pm on Saturdays in order to acquire the necessities of life,
   • (b) for any medical emergency involving her or any member of her immediate family (spouse, child, parent, sibling),
   • (c) for going directly to and from, or, being at school, employment, court attendance, religious services, legal or medical or dental appointments for herself, or looking for work.
   • (d) she will confirm her schedule in advance with her supervisor setting out the times for these activities
   • (e) with the prior written approval of the supervisor. The written permission of the supervisor is to be carried with her during these times.

9. During the period of home confinement, she must present herself at her doorway upon the request of her supervisor or a peace officer for the purpose of verifying her compliance with her home confinement condition.

10. Following this home confinement, for the next month, she must remain in her residence or on the property of her residence at all times daily between the hours of 11:00 p.m. and 5:00 a.m. except:

    • (a) for any medical emergency involving her or any member of her immediate family (spouse, child, parent, sibling), or
    • (b) with the prior written approval of the supervisor. The written permission of the supervisor is to be carried with her during these times.

Released: March 4, 2020

Signed: Justice D.A. Harris