Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 10 30

COURT FILE No.: 4862 999 23 23200953-00 4862 999 23 23200954-00 4862 999 23 23200955-00 4862 999 23 23200956-00 4862 999 23 23201012-00 4862 999 23 23201013-00 4862 999 23 23201014-00 4862 999 23 23201015-00

BETWEEN:

CITY OF TORONTO

— AND —

MARIANNA PINTO and GIUSEPPE PINTO

Before: Justice Seth Weinstein

Heard on: October 22, 2024

Reasons for Judgment released on: October 30, 2024

Counsel: Chris Bendick, counsel for the Appellant Gavin J. Tighe, counsel for the accused Respondents

Overview

WEINSTEIN J.:

[1] The Crown appeals the sentence imposed by Her Worship Cruz after the Respondents pleaded guilty to breaches of Orders to Comply and Stop Workers Orders contrary to section 36(1)(b) of the Building Code Act. The sole issue advanced on this appeal was whether Her Worship erred in undercutting a joint submission that had been presented by the parties. For the reasons that follow, I allow the appeal and substitute the fine that had been presented as part of the joint submission.

[2] The Respondents appeared through counsel on May 7, 2024, and pleaded guilty. The Respondents waived arraignment and presented an agreed statement of facts. Her Worship accepted the agreed statement of facts and convicted the Respondents.

[3] After the plea and facts were accepted, the Crown advised Her Worship that the parties were presenting a joint submission of a total fine of $17,000. Counsel for the Respondent agreed that it was a joint submission for Her Worship’s consideration. However, counsel for the Respondent additionally submitted that it would be within Her Worship’s “discretion to levy a lower penalty as against this particular offender”. [1] Counsel went on to review the mitigating factors and the impact the fines would have on his clients who were small business owners.

[4] The Appellant expressed concern that the Respondent was resiling from the joint submission and reminded Her Worship that the fines had been proposed because it was believed to be a joint recommendation. The Appellant submitted that if it was an open submission, they would have sought a higher fine. The Respondent reiterated that it was not resiling from the joint submission.

[5] Her Worship imposed a $12,000 fine. Prior to doing so, Her Worship did not express any concerns about the appropriateness of the joint submission. Further, she did not invite any submissions to address her concerns before the sentence was imposed. Finally, Her Worship did not provide meaningful reasons to explain why the joint sentence was unacceptable.

Applicable Legal Principles

[6] The Supreme Court of Canada summarized the applicable standard of review in sentence appeals in R. v. Friesen as follows:

As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44). Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably” (R. v. McKnight (1999) 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49). Not every error in principle is material: an appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44). If an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrably unfit.

[7] It is well established that joint submissions are entitled to great deference. In Regina v. Anthony Cook, 2016 SCC 43, at para. 25, the Supreme Court of Canada emphasized the importance of joint submission on sentence:

It is an accepted and entirely desirable practice for Crown and defence counsel to agree to a joint submission on sentence in exchange for a plea of guilty. Agreements of this nature are commonplace and vitally important to the well-being of our criminal justice system, as well as our justice system at large. Generally, such agreements are unexceptional and they are readily approved by trial judges without any difficulty. Occasionally, however, a joint submission may appear to be unduly lenient, or perhaps unduly harsh, and trial judges are not obliged to go along with them.

[8] Joint submissions are a proper and necessary part of the administration of the criminal justice system. I agree with the Respondents that trial judges should not merely rubber stamp joint submissions. However, judges must exercise restraint before departing from them. The law is very clear that a joint submission should only be rejected if the proposed sentence would bring the administration of justice into disrepute or be contrary to the public interest (the “public interest test”).

[9] A joint submission will only bring the administration of justice into disrepute or be contrary to the public interest if it is so markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system. [2]

[10] The public interest test emphasizes that a joint submission should only be rejected when it is “so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down”. [3] This is an extremely high threshold.

[11] The Court in Anthony-Cook set out the following principles that must be applied whenever trial judges are presented with a joint submission:

a) Trial judges must approach a joint submission on an “as-is” basis. This is to say that adding to or excluding a term of an order constitutes a rejection of a joint submission. The only exception to this is if the parties have omitted a mandatory term;

b) The principles engaged in considering a joint submission apply both to “jumping” or “undercutting” a joint submission;

c) The circumstances leading to the joint submission are relevant to a judge’s consideration of whether the proposed sentence is in the public interest. For example, any benefits obtained by the Crown or concessions made by the accused may make a sentence more compelling;

d) If the trial judge is not satisfied with the sentence proposed by counsel, fundamental fairness dictates that an opportunity be afforded to counsel to make further submissions to address any concerns before the sentence is imposed.

e) The judge must notify counsel of their concerns, and invite further submissions on those concerns, including the possibility of allowing the accused to withdraw their guilty plea;

f) If the trial judge’s concerns about the joint submission are not alleviated, the judge may allow the accused to apply to withdraw his or her guilty plea.

g) Trial judges should provide clear and cogent reasons for departing from the joint submission. These reasons will help explain to the parties why the proposed sentence was unacceptable and may assist them in the resolution of future cases. Reasons will also facilitate appellate review.

[12] Although decided in a criminal law context, the principles articulated in Anthony-Cook are equally applicable to the regulatory and quasi-criminal context. Indeed, this high standard is critical to a proper functioning of courts dealing with Provincial Offences matters which, given the volume of cases, are wholly dependent on the parties working collaboratively to resolve matters. The importance of joint submissions to the administration of justice was emphasized in Anthony-Cook, and applies equally to Provincial Offences matters:

The prospect of a joint submission that carries with it a high degree of certainty encourages accused persons to enter a plea of guilty. And guilty pleas save the justice system precious time, resources, and expenses, which can be channeled into other matters. This is no small benefit. To the extent that they avoid trials, joint submissions on sentence permit our justice system to function more efficiently. Indeed, I would argue that they permit it to function. Without them, our justice system would be brought to its knees, and eventually collapse under its own weigh. [5]

Application of these Principles

[13] In rejecting the joint submission, Her Worship erred in law in failing to follow the framework set out in Anthony Cook. Although Her Worship was alive to the fact that there was a joint submission, she did not raise any concerns about the proposed sentence with counsel. Further, she did not provide counsel the opportunity to make further submissions to address any of her underlying concerns.

[14] I do not accept the Respondent’s submission that the Appellant had an opportunity to explain why the proposed sentence was fit and not contrary to the public interest. A review of the transcript makes it clear that no further submissions were provided because after the Appellant raised its concerns, counsel for the Respondent confirmed that he was not resiling from the joint submission. Further, Her Worship gave no indication that she was troubled by the proposal. In the absence of some indication of concern, the Appellant cannot be expected to have to further justify the propriety of the joint submission.

[15] Finally, I do not accept the Respondent’s submission that Her Worship provided cogent reasons for departing from the joint submission. Although her reasons outlined the mitigating facts alluded to by counsel, she failed to explain to the parties why the proposed sentence was unacceptable or why it was unable to achieve the necessary principles of sentence. Her Worship provided no meaningful explanation which might facilitate appellate review of her reasoning process as to why the proposed sentence would bring the administration of justice into disrepute or be contrary to the public interest.

[16] A court that rejects a joint submission on penalty must apply the public interest test and must demonstrate why the proposed sentence is so unhinged from the circumstances of the case that it must be rejected. In this case, Her Worship failed to apply this stringent public interest test. Instead, Her Worship replaced the proposed penalty with her own view of a more fit penalty.

[17] The Respondent submits that the analysis of the public interest test is not the same when a judge undercuts a joint submission as fair trial rights are not engaged nor are there concerns about public confidence in the certainty of plea negotiations in those circumstances. [6] Although an accused’s fair trial rights are not in play if the trial judge undercuts a joint submission, Anthony-Cook is very clear that the principles engaged in considering a joint submission apply both to “jumping” or “undercutting” a joint submission. [7] Moreover, there remain compelling public interest reasons for maintaining the certainty of a negotiated resolution. As stated by Doherty J.A. in R. v. DeSousa:

As alluded to in the extract from the Martin Report set out above, 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. [8]

[18] An example of similar case where a sentencing judge’s rejection of a joint submission was considered by Justice Rondinelli in Toronto (City) v. Nawrocki, 2022 ONCJ 307. In finding that the trial judge erred in imposing a $3,000 instead of a $5,000 as was initially proposed, Justice Rondinelli held that the Justice of the Peace should not have “tinkered” with the fine that had been jointly proposed in that case. In particular, Justice Rondinelli held at paras 20 and 21:

Just as the imposition of a sentence only one month longer than that proposed by the joint submission in Manca was found to be “little more than tinkering,” the same can be said of the Justice of the Peace in this case imposing a $3,000 fine instead of $5,000 as was initially jointly proposed. As mentioned above, there was limited financial information placed before the Justice of the Peace that went untested by the Prosecutor. The maximum fine for this offence is $10,000,000. The Prosecutor proposed a fine of $5,000, taking into consideration that the corporation had no prior violations, pleaded guilty and was a small retail establishment – while at the same time balancing the deterrent effect such a fine would have on other similarly situated corporations. Although Ms. Nawrocki had expressed that she was not happy with the amount, $5,000 was presented as a joint position. This came after much discussion with the Prosecutor; understanding that she had no viable defence to the charge; and that the Prosecutor’s initial position was to seek a much higher fine but upon reflection of the financial information provided by the corporation, the Prosecutor sought a joint position of $5,000.

In all of these circumstances, it is hard to see how the proposed fine of $5,000 (i.e. 0.0005 percent of the maximum fine) is “so unhinged from the circumstances of the offence and the offender that its acceptance would leave reasonable and informed persons … to believe that the proper functioning of the justice system had broken down,” (Anthony-Cook at para 34) especially when an extension of time to pay the fine would go a long way in attenuating the burden of the fine. The Justice of the Peace should not have “tinkered” with the proposed amount in this case: See Anthony-Cook at para 63.

[19] Counsel argued that Nawrocki was distinguishable because Justice Rondinelli was correcting an illegal sentence that had been imposed by the Justice of the Peace. Although an illegal sentence had been imposed, the illegality of the sentence did not impact Justice Rondinelli’s reasoning when it came to the applicability of the fine and the propriety of the Justice of the Peace going lower than the jointly submitted fine.

[20] The joint submission in this case was not the result of a hastily agreed resolution that was negotiated outside the courtroom doors. Rather, the proposal was the product pre-trial discussions where the parties worked collaboratively to arrive at a just resolution. These pre-trial resulted in a detailed agreed statement of facts that considered the City’s delays in granting the building permits and the other mitigating facts adverted to by counsel and referenced by Her Worship in her reasons.

[21] In all the circumstances, it is difficult to see how the proposed fines of $17,000 was “so unhinged from the circumstances of the offence and offender that its acceptance would leave reasonable and informed persons to believe that the proper functioning of the justice system had broken down.” Although defence counsel submitted that the Respondents were a “small operation struggling to get by”, there was no evidence of their financial circumstance before the Court. Further, to the extent that there were any concerns with respect to the burden of the fines and the impact caused by the delay in the City granting the building permits, those concerns could have been addressed by granting an extended period of time to pay. Indeed, that is ultimately what counsel for the Respondent sought at the time of submissions. [9]

Disposition

[22] The appeal is allowed and a fine totaling $17,000 is ordered. The breakdown of the fine will be the same as that presented as part of the joint submission. In particular:

Count 1 (Marianna Pinto, offence date of February 7, 2023) - $1,000 fine Count 2 (Marianna Pinto, offence date of April 26, 2023) - $7,500 fine Count 3 (Marianna Pinto, offence date of February 7, 2023) - $1,000 fine Count 4 (Marianna Pinto, offence date of April 26, 2023) - $7,500 fine

[23] The Respondents have one year in which to pay the fine.

Released: October 30, 2024 Signed: Justice Seth Weinstein

[1] Transcript of Proceedings, May 7, 2024, at p. 14 [2] Anthony Cook, supra, at para 33 [3] Anthony-Cook, supra, at para. 34 [4] Anthony-Cook, supra, at paras. 51-60 [5] R. v. Anthony-Cook, supra at para. 40 [6] Respondent’s Factum, p. 6 [7] Anthony-Cook, supra, at paras. 51-60 [8] R. v. DeSousa 2012 ONCA 254, at para. 24 [9] Transcript of Proceedings, May 7, 2024, at pp. 15-16