ONTARIO COURT OF JUSTICE
DATE: 2024 12 17 COURT FILE No.: Halton 998 23 12103241
BETWEEN:
HIS MAJESTY THE KING
— AND —
WILCHINA CASSEUS
Before: Justice Scott Latimer [1] Heard on: September 17, October 29, December 12, 2024 Reasons for Sentence released on: December 17, 2024
Counsel: J. Coppolino, counsel for the Crown A. Riahi, counsel for Ms. Casseus
LATIMER J.:
[1] This case concerns car theft.
I. Facts
[2] Wilchina Casseus pleaded guilty to attempting to steal a SUV from a driveway in Milton, Ontario. At 2:39 a.m. on September 16, 2023, a homeowner was awakened to find Ms. Casseus and two other parties in his driveway, attempting to steal his father’s 2023 Chevy Tahoe. He ran outside. His presence interrupted the theft, and the three intruders fled the area in a waiting vehicle. Police located their vehicle leaving the Region and conducted what was described as a “high risk traffic stop and arrest”. A subsequent search of their vehicle located items used to facilitate auto theft, such as metal rods, pry bar, and cable cutters. Also found were Chevrolet and Buick master keys. Upon arrest Ms. Casseus lied to the police about her name, but her fingerprints subsequently disclosed her identity. All three individuals were from Quebec.
[3] On September 17, 2024, Ms. Casseus entered a guilty plea to attempted auto theft. The Crown elected by summary conviction and the parties jointly recommended a suspended sentence. I raised concerns about the recommendation and ordered that the Crown, pursuant to s. 723 of the Criminal Code, produce evidence regarding the prevalence of auto theft in Halton Region (see R v. Casseus, 2024 ONCJ 464). The sentence hearing was adjourned for that purpose, and for the parties to consider providing caselaw and any other information that they believed would support the joint recommendation.
[4] Six weeks later, On October 29, Mr. Coppolino, the Deputy Crown Attorney, appeared in court to address the matter. He provided a two-page document from Halton Police, documenting the meteoric rise in auto theft in this region over the past four years. He maintained, however, in the face of this evidence, that the suspended sentence being recommended was an appropriate disposition in all the circumstances. No caselaw was provided by either side. The document, which I accept is trustworthy and credible, has become part of the record in this case.
II. Circumstances of the Offender
[5] Ms. Casseus is a 23-year-old Canadian Citizen living in Quebec. She regrets her bad decision, driven by financial hardship and bad influences, and her counsel points out that the recommended non-custodial sentence will permit her to keep working, which in turn will allow her to continue providing financial assistance to her extended family in Haiti.
III. Circumstances of the Offence
[6] The statistical evidence provided following the s. 723 Code order corroborates the judicial experience in Halton Region. Auto theft cases are flowing into our criminal courts at a concerning rate. In 2019, 494 cars were reported stolen in this region. In 2023, that number rose to 1379. That is an increase of over 179% in two years. In 2023, two vehicles were stolen for every 1000 citizens in our community. Further, as Mr. Coppolino acknowledged in submissions, these numbers may not even include circumstances like the present case, where an unsuccessful attempt was made to steal a vehicle.
[7] The document provided also explains the significant local efforts made by the police to respond to this criminality, which I infer have come at considerable taxpayer expense.
[8] Additional identified trends in this crime category disclose that a minority of the arrested parties – 34% – actually reside in Halton Region. Quebec residents – like Ms. Casseus – accounted for 32% of all auto theft arrests in 2023.
[9] In R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089, a decision of the Supreme Court of Canada, Justice Wagner, as he then was, wrote the following at paragraphs 89-90:
Even though the Criminal Code applies everywhere in the country, local characteristics in a given region may explain certain differences in the sentences imposed on offenders by the courts. The frequency of a type of offence in a particular region can certainly be a relevant factor for a sentencing judge. In M. (C.A.), Lamer C.J. stated the following:
The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. [Emphasis added, para. 91.]
He then added the following in the next paragraph:
As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. [para. 92]
Although the fact that a type of crime occurs frequently in a particular region is not in itself an aggravating factor, there may be circumstances in which a judge might nonetheless consider such a fact in balancing the various sentencing objectives, including the need to denounce the unlawful conduct in question in that place and at the same time to deter anyone else from doing the same thing. It goes without saying, however, that the consideration of this factor must not lead to a sentence that is demonstrably unfit.
[10] I take these principles into consideration in assessing the evidence produced in the present case.
[11] I will now move to my Legal Analysis, including the narrow basis on which a sentencing court may depart from a joint recommendation.
IV. Legal Principles and Analysis
[12] The Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society." Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in the Criminal Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community. (See s. 718(a) – (f) of the Code)
[13] Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it. This means that, for the sentence I impose to be appropriate, it must be tailored to Ms. Casseus’ circumstances and the circumstances of the offence she committed.
[14] In this particular case, the parties have negotiated a joint recommendation. These recommendations are “vitally important to the well-being of our criminal justice system, as well as our justice system at large”: R v Anthony Cook, 2016 SCC 43, at para. 25.
[15] The vast majority of joint recommendations pass without issue. Only a small number trigger judicial concern. This is one of those rare cases. I have articulated that concern on the record and provided the parties a fulsome opportunity to defend their recommendation, either by reference to Ms. Casseus’ individualized circumstances or by showing that it falls within an acceptable range of precedent.
[16] Upon deliberation, I have concluded that counsel have failed to do either. I conclude that this recommendation falls well short of protecting the public and addressing the salient principles of sentencing, for reasons I will elaborate on in a moment. I find that this proposed sentence – even in the context of a first offender who has pleaded guilty – would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system: Anthony-Cook, para. 34. Too much credit is being given to the plea of guilt, and too little weight to the principles of general deterrence, denunciation, and the current needs of our community.
[17] I come to this conclusion regrettably. I am well aware, and readily accept, that I should approach joint recommendations with restraint. They offer something close to certainty and provide a real benefit to the administration of justice at large. However, certainty is not the exclusive consideration in this context. I adopt the comments of Justice Doherty, writing for the Court of Appeal, in R. v. DeSousa, 2012 ONCA 254, at para. 22:
Certainty of result is, of course, not the ultimate goal of the sentencing process. Certainty must yield where the harm caused by accepting the joint submission is beyond the value gained by promoting certainty of result. The standard described in both Cerasuolo and the Martin Report -- that is, whether the proposed sentence would bring the administration of justice into disrepute or would otherwise not be in the public interest -- draws the line where certainty of result must give way to other criminal justice interests.
[18] In this case, that line has been crossed.
[19] I will explain my reasoning by reference to the most important aspects of this case, including mitigating and aggravating circumstances that are present (see s. 718.2(a) of the Code). I remain aware of Ms. Casseus’ background, the features of the crime that she has committed, and the timing of her guilty plea. I consider the following factors particularly relevant in this case.
[20] First, Ms. Casseus has pleaded guilty. This is a mitigating feature because it is an expression of remorse and it relieves the state of the burden of prosecuting her case, particularly at a time when the courts in this Region are overbooked and struggling to address all the matters required to be addressed. Ms. Casseus deserves credit for her decision to accept responsibility and not put the Crown to its burden of proving her guilt beyond a reasonable doubt.
[21] Second, Ms. Casseus has no prior criminal record. Her status as a first offender is a mitigating factor. In R. v. Priest (1996), 110 CCC (3d) 289, the Court of Appeal for Ontario said the following about the sentencing of first offenders:
The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation.
Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.”
[22] Factually, Priest involved a break and enter guilty plea in a Northern Ontario community where the trial judge expressed concerns about the ongoing prevalence of the crime. In short reasons, that factor was the “paramount” reason why a sixty-day Crown recommendation was exceeded, and a one-year jail sentence imposed.
[23] Justice Rosenberg, writing for the Court of Appeal, explained the error committed by the trial judge. His focus on the prevalence of break and enters in his community, and the corresponding need to stress general deterrence, to the exclusion of all other sentencing principles amounted to a flawed analysis and a disproportionate sentence:
The trial judge was entirely wrong to state that due to the apparent prevalence of the crime of break and enter in Hearst, general deterrence was the paramount objective in sentencing this accused. This was a serious error in principle and wholly distorted the decision as to the appropriate disposition.
[24] Priest was discussed in the minority opinion in Lacasse. Justice Gascon advised trial judges that, while local considerations about a certain type of ongoing criminality are relevant, that factor cannot overwhelm all other sentencing principles relevant in a criminal sentencing. Proportionality must always be kept front of mind. Ms. Casseus cannot be made to “suffer a disproportionate punishment simply to send a message to discourage others from offending”: Lacasse, para. 128.
[25] In my view, both opinions in Lacasse serve to appropriately caution trial judges to consider local trends, where appropriate, but only in a manner that ensure that excessive weight is not given to that one factor alone.
[26] In conclusion, the startingly frequency of auto thefts in Halton Region is highly relevant – but not determinative – to this sentencing. It is relevant to a) the gravity of the offence committed by Ms. Casseus, b) the increased need for this sentence to have a denunciatory component, and c) to general deterrence, to the degree explained in paragraph 128 of Lacasse.
[27] Third, I accept that a non-custodial sentence would be the best sentence option available to permit her to maintain employment, which would have a positive rehabilitative effect.
[28] Fourth, this crime took place on a citizen’s driveway. The intrusion upon his territorial privacy is a stand-alone aggravating feature. It cannot be the case, in a society governed by the rule of law, that citizens must guard their vehicles through the night from prowlers and thieves. The fact that this homeowner had to engage in self-help by exiting his home and confronting Ms. Casseus and her associates – at risk to his personal safety – demonstrates the gravity of the offence committed.
[29] Fifth, this criminal attempt, and the offenders’ subsequent departure from the scene of the crime, was a joint venture for which all three individuals bear responsibility. The vehicle’s flight created a risk to everyone else present on the roadway, including the police officers who had to deploy what was described as a “high risk” traffic stop. That is a further stand-alone aggravating feature.
[30] Sixth, Ms. Casseus’ decision to lie about her identity upon arrest is an aggravating feature.
[31] Seventh, I would go further and describe the obvious pre-planning that went into this attempt as an aggravating feature. The offenders travelled a considerable distance and came armed with tools and technological gadgets for the express purpose of stealing this sort of vehicle. This pre-planning and organized activity increases Ms. Casseus’ moral blameworthiness.
[32] For all these reasons, I consider the joint recommendation to be woefully incapable of addressing the operative principles of sentencing engaged in this proceeding. It does not promote the safety of our community at a time when public need is the greatest. Supported by the statistical evidence in this case, I take judicial notice of the following notorious fact – auto theft is a matter of pressing local and provincial concern. When proven, it is the obligation of the prosecution and the courts to deal with the matter appropriately, cognizant of all relevant considerations, including the public’s need to have this conduct denounced and deterred.
[33] Having concluded that I must depart from this joint recommendation, the next step in the analysis is determining what the appropriate sentence should be.
[34] Were I to approach this question unencumbered by the joint recommendation, I very likely would have imposed a jail sentence, notwithstanding Ms. Casseus’ status as a first offender and her guilty plea. In my view, the gravity of the crime she has committed and the ongoing cost to our community would justify a jail sentence in the range of 3 to 6 months. For a helpful discussion of the general principles engaged in this crime category, see R v. Khan, at paras. 29-49 (SCJ).
[35] However, in this case, there are other factors to consider. For one, I appreciate the ‘test case’ nature of the present proceeding. It has resulted in an objective evidentiary record regarding the prevalence of auto theft in Halton Region, and the ongoing cost to citizens in our community. As a judge presiding in this Region, I viewed it as necessary to put the prosecution service on notice regarding the current judicial view on auto theft in Halton Region. Ms. Casseus’ case does not stand alone; it is one of several cases in the provincial court system where sentences at the very low-end of the range are being recommended in court. In some of those cases, given the significant deference afforded by the Anthony-Cook decision, those recommendations are being accepted. In others, they are not. While the Court (of course) does not direct prosecutorial decision-making, it does speak through its judgments. Criminal sentence decisions in Halton Region will take into consideration local trends and conditions. Given the current epidemic of auto theft – for which Ms. Casseus has played a part – the local sentence range for this criminality is trending upwards. Mr. Coppolino, to his credit, acknowledged that message during sentence submissions on October 29th.
[36] Overall, I am satisfied that a conditional sentence can address the principles of sentencing in Ms. Casseus’ unique circumstances. Whether something less than real jail will be appropriate in future cases will be resolved on a case-by-case basis.
V. Disposition
[37] I impose an eight-month conditional sentence. I will discuss the specific terms with counsel in court.
Released: December 17, 2024 Justice Scott Latimer
[1] Justice Latimer was appointed to the Superior Court of Justice on November 1, 2024. This matter was completed pursuant to section 669.3 of the Criminal Code of Canada.