ONTARIO COURT OF JUSTICE

CITATION: R. v. McConnell, 2021 ONCJ 431

DATE: 2021 08 18

COURT FILE No.: Guelph # 19/3938

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Brent McConnell

Before Justice M.K. WENDL

heard on April 16 and July 21, 2021

Reasons for Judgment released on August 18th, 2021

R. Butler........................................................................... Counsel for the Provincial Crown

D. Doney................................................................................... Counsel for Brent McConnell

WENDL J.:

[1] Brent McConnell pleaded guilty to criminal harassment, assault, and mischief in the context of a domestic relationship. There is a joint position to credit his pre-trial custody at 11 days and to impose a period of probation. Mr. McConnell comes before the court without a criminal conviction, but he does have a recent prior conditional discharge. In fact, he was still on probation from the discharge when he committed the offences at bar.

[2] In the end, the appropriateness of the joint submission depends on the use this court can make of the prior discharge.[^1]

Law on conditional discharge

[3] An absolute discharge or a conditional discharge are not considered criminal convictions.[^2] As section 730 of the Criminal Code clearly states:

(3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence except that

[4] Recently, the Ontario Court of Appeal in Barclay found that the sentencing judge erred in not treating the accused with a discharge as a first-time offender.

I agree with the appellant that the trial judge erred by describing the appellant as "not a first time offender". At the time the appellant committed this offence, he had received a conditional discharge in respect of his prior conviction for possession of marijuana, and, as the appellant submits, was accordingly deemed pursuant to s. 730(3) of the Criminal Code not to have been convicted of the offence. While s. 730(4) of the Criminal Code provides that the court may revoke the discharge if the offender is convicted of an offence while bound by the conditions of his probation order, counsel advised that the appellant's discharge had not been revoked. Therefore, technically, the appellant was a first-time offender at the time he was sentenced.[^3]

[5] However, the Court noted that the trial judge was correct to consider the fact the accused in Barclay was on probation at the time, from a conditional discharge, when determining the sentence.[^4]

[6] Moreover, it seems uncontroversial that a conditional discharge can be taken into consideration when deciding to impose another conditional discharge. The British Columbia Court of Appeal in Tran put it best:

In the instant case, however, before an absolute or a conditional discharge could be given, the court must form a consideration that that course (a) is in the best interests of the accused, and (b) is not contrary to the public interest. The court must in some way satisfy itself that it is in the best interests of the accused person and not contrary to the public interest before it can direct an absolute or a partial discharge. Can it be said that it is in the best interests of an accused person that he be given a conditional or an absolute discharge today for an offence that he commits, when he received an absolute or a conditional discharge in the past for some other offence because the law prohibits any reference to the fact that he had on a previous occasion been given an absolute or a conditional discharge because the section says that "the accused shall be deemed not to have been convicted". This construction would give to an accused person a licence to go out and commit and re-commit offences with the assurance that when he pleaded guilty to or was found guilty of the subsequent offence he would be eligible for the same treatment because the law prohibits any reference to the prior discharge, absolute or conditional

What the Court below was doing was considering the fitness of an absolute or a conditional discharge as a mode of disposition of the offence to which the respondent had pleaded guilty. Surely the primary duty of the Court is and would be to inquire into whether or not the applicant was a person of good character; his mode of life and other antecedents germane to the question of sentence, and in the instant case to satisfy itself that an absolute or conditional discharge was in the best interests of the accused and not contrary to the public interest.

When Crown counsel proposed to adduce proof in the lower Court of the fact that a Court had already given a conditional discharge to the respondent, who was then applying for that same treatment, surely the most important circumstance was to consider whether or not the respondent had received that very extraordinary treatment on a prior occasion and if so, for what offence. That information was not being tendered to the Court in the nature of a conviction, because the section has wiped out the concept of a conviction and normally proof of a prior conviction is tendered as the basis for greater punishment.

Crown counsel was not seeking greater punishment by reason of a previous conviction. Crown counsel was seeking to satisfy the trial Judge that a direction of an absolute or a conditional discharge was not in the best interests of the accused and was contrary to the public interest. He was endeavouring to show that on 12th December 1972 the respondent in this case who was seeking an absolute or a conditional discharge had pleaded guilty to a charge of shoplifting and had on that occasion received a conditional discharge. This had nothing to do with whether or not there was a conviction or whether the section in question wiped out all reference to a conviction.[^5]

[7] In Naraindeen, the Ontario Court of Appeal summarized the approach of using a discharge at sentence:

This court has held that a discharge precludes a person from being treated as having been previously convicted, although the discharge may be taken into account on an application for a further discharge: R. v. Murray, Ont. C.A., Martin, Lacourciere and Zuber JJ.A., June 2, 1976 [summarized at (1976-77), 19 Crim. L.Q. 26], and R. v. McLean (1978), 7 C.R. (3d) S-3 (Ont. C.A.). See also R. v. Tan (1974), 1974 CanLII 1608 (BC CA), 22 C.C.C. (2d) 184, [1975] 2 W.W.R. 747 (B.C. C.A.) and R. v. Nickerson (1975), 1975 CanLII 2021 (PE SCAD), 7 Nfld. & P.E.I.R. 145 (P.E.I. C.A.). However, this court has also held that the past conduct of an offender may be taken into account on sentencing even though it was not the subject of adjudication (R. v. Roud (1981), 1981 CanLII 3231 (ON CA), 58 C.C.C. (2d) 226, 21 C.R. (3d) 97 (Ont. C.A.) [leave to appeal to S.C.C. refused (1981), 58 C.C.C. (2d) 226n]) and it has also been held, persuasively, that this conduct may be taken into account when it resulted in a discharge (R. v. Panagiotou (1989), 1989 CanLII 7420 (MB QB), 57 Man. R. (2d) 156 (Q.B.)). Applying the first two mentioned decisions of this court it appears that the trial judge erred in treating the previous discharge as a criminal record.[^6]

[8] It seems from Naraindeen, that in addition to the fact that an accused with a discharge is to be treated as a first-time offender and that a discharge can be considered before imposing another discharge, the Court, citing from Roud, found that past conduct could be taken into account on sentence even though no conviction was entered.

[9] In Roud, the sentence issue on appeal was the use of prior incidents, of which the accused had not been charged, at the sentencing hearing. The contention was that the sentence imposed was more severe because the Court heard of a history of violence toward Mr. Roud’s children by himself, again, none of which he was charged with. The Court of Appeal found that the evidence was appropriately in front of the Court because it was relevant to the issues of rehabilitation and deterrence.

Nothing could be more prejudicial to an accused on the issue of sentence than evidence which tends to be general and perhaps more so if examples are injected in the general setting. How can a convicted man defend himself from what is said in such circumstances? Yet in such a case as this one on the issue of sentence, where the question of individual deterrence and rehabilitation of the convicted man are central issues along with the question of the protection of the public, it seems logical that such evidence must be dealt with, for the background and character of the accused man are necessary information for the sentencing court. The accused must be given every opportunity to cross-examine and to call whatever evidence he chooses.

In my respectful view the evidence was relevant and admissible and I do not think the learned trial judge erred in the use he made of it. He did not, as he must not do, punish the appellant for past acts, but on the other hand I think he properly sought to understand the appellant in determining the quantum of sentence appropriate for the offence of which he had been convicted by the jury. He had a duty to the public, and he had a duty to the appellant. I do not see how he could have discharged either without fairly complete information as to the appellant, his background and his character.[^7]

[10] This was much the same conclusion drawn by the British Columbia Court of Appeal in Jerimiah:

The Code section does not prevent a person from receiving more than one discharge. A person who has been discharged has not been convicted. However, a prior discharge is a factor, amongst the other factors, to be taken into consideration by the judge when imposing a sentence. It is relevant to whether the person was of good character, their mode of life and other antecedents relevant to the issue of sentence: R. v. Tan (1974), 1974 CanLII 1608 (BC CA), 22 C.C.C. (2d) 184 (B.C.C.A.) at 186-88; R. v. Small, 2001 BCCA 91 at para. 11. A sentence has been described as “extraordinary treatment”: Tan at 188. [^8]

[11] And, finally, in Montesanto, another recent case from the Ontario Court of Appeal, the Court found that while it was not appropriate to put an absolute discharge in front of the court, the fact that it was not the first incident involving the accused was:

The appeal judge properly concluded that the trial judge erred in considering the respondent's absolute discharge, although the Crown was entitled to put before the court "the factual reality that the incident on which there has been a plea is not the first incident".[^9]

[12] Therefore, in reviewing the relevant authority we can draw the following conclusions from the use of a discharge at a sentence hearing.

(1) An accused with only a prior discharge is to be treated as a first-time offender.

(2) A discharge is relevant in determining the fitness of another discharge.

(3) The underlying facts of a discharge, if properly adduced, particularly if they are similar to the offences in front of the court, are relevant to the issue of deterrence and/or rehabilitation.

(4) It is appropriate to consider the fact the accused was on probation at the time of offences, from the conditional discharge, when determining the sentence.

Conclusion

[13] Given that the accused was on probation at the time of the offence, the underlying facts of the conditional discharge are not related to this complainant and are not domestic in nature, the joint submission, reflecting 11 days in custody along with a period of probation, is appropriate.

Released: August 18th, 2021

Signed: Justice M.K. Wendl

[^1]: Brent McConnell was sentenced on July 21, 2021 with reasons to follow. These are those reasons [^2]: R. v. McInnis, [1973] O.J. No. 2124 (ONCA) [^3]: R v Barclay, [2018] OJ No 664 (ONCA) [^4]: Ibid at 49 [^5]: R. v. Tan, [1974] B.C.J. No. 875, [^6]: R v Naraindeen, 1990 CanLII 6731 (ON CA), 75 OR (2d) 120 (ONCA) [^7]: R v Roud, 1981 CanLII 3231 (ON CA), [1981] OJ No 14 (ONCA) [^8]: R. v. Jeremiah, 2018 BCCA 89 [^9]: R. v. Montesano, 2019 ONCA 194, 145 OR (3d) 474 (ONCA)