ONTARIO COURT OF JUSTICE
DATE: 2025 06 09
COURT FILE No.: Hamilton 24-47102470, 24-47102698 and 23-21000992
BETWEEN:
HIS MAJESTY THE KING
— AND —
KAITLYN BRAUN
Before Justice J.P.P. Fiorucci
Heard on January 7 and May 16, 2025
Reasons for Judgment released on June 9, 2025
Simon McNaughton........................................................................... counsel for the Crown
Alison MacDonald............................................... counsel for the offender Kaitlyn Braun
FIORUCCI J.:
OVERVIEW
[1] Like many who come in conflict with the law, the offender, Kaitlyn Braun, has diagnosed mental health issues. The offender’s mental health issues played a central role in her commission of multiple offences, victimizing multiple victims over a prolonged period. Her victims were doulas, trained professionals who provide emotional, informational, physical, and mental support to women before, during and after the birth of a child. The offender was never pregnant but obtained the services of multiple doulas by falsely claiming that she was.
[2] As I will explain, to characterize the offender’s conduct as fraudulent is accurate, but incomplete. It fails to capture the full extent of her offending behaviour. Before Justice Robert Gee of the Ontario Court of Justice, the offender entered guilty pleas to twenty-one offences. These offences included fraud under $5,000, false pretences, and indecent acts in relation to multiple doulas and public mischief for making a false accusation of sexual assault against an individual.
[3] On February 14, 2024, in accordance with a joint submission presented by the Crown and defence counsel, Justice Gee sentenced the offender to a conditional sentence of imprisonment (CSO) of two years less a day, followed by three years of probation, concurrent on each count. The sentence permitted the offender to be released into the community on strict conditions.
[4] In April of 2024, within two months of her release on the CSO, the offender committed new offences of a similar nature, victimizing two more doulas, and thereby breaching a condition of the CSO that she keep the peace and be of good behaviour. The offender did not return before Justice Gee to address the allegation that she had breached her CSO.
[5] Instead, she remained in custody until January 7, 2025, when she attended before me for the first time and entered guilty pleas to the new offences and acknowledged that she breached the CSO under s. 742.6 of the Criminal Code. Crown and defence counsel made a joint submission, asking me to terminate the CSO, direct that the offender serve the unexpired portion of the CSO in custody, and impose a global 3-year jail sentence for the new charges to be served consecutively. I advised counsel that the sentence they were jointly proposing would result in a substantial period of incarceration for the offender and that I required more information to properly consider their joint submission, including transcripts of the sentencing proceedings before Justice Gee and a fulsome agreed statement of facts for the new offences. The sentencing date was adjourned.
[6] Sentencing submissions were made on May 16, 2025. By then, counsel had provided further documentation including transcripts of the prior proceedings. The Crown and defence counsel advanced the same joint submission. In accordance with R. v. Anthony-Cook, [1] I advised counsel that I was considering “undercutting” the joint submission and provided them with an opportunity to defend their joint proposal.
[7] These reasons explain why I considered “undercutting” the joint submission, but also why I find that I must accede to it.
THE ORIGINAL OFFENCES AND THE CSO
[8] The offender committed the original offences between June 2022 and March 2023. She entered guilty pleas before Justice Gee to charges relating to eleven doulas and admitted facts relating to offences committed against five other doulas for which guilty pleas were not entered. Pursuant to the principles in R. v. Garcia and Silva [2] and s. 725 of the Criminal Code, the parties agreed that Justice Gee could consider these additional facts when sentencing the offender. The facts relating to the original offences are contained in the transcript of the proceedings before Justice Gee on December 7, 2023. The transcript is Exhibit 6 on this sentencing hearing. A concise summary will suffice to portray the gravity of the offences.
[9] The offender contacted the doulas claiming to be pregnant when she was not. On all but two occasions she told the doulas that she was pregnant because of a sexual assault. Twice she said the perpetrator of the sexual assault was her brother. Once she said the pregnancy resulted from a sexual assault that occurred in a hospital. The services the doulas provided to the offender were often free of charge because of the sympathetic circumstances relayed to them by the offender, all of which were lies. Sometimes the offender agreed to pay for the services but did not. The support services the doulas provided, often over multiple days, were through text messages, FaceTime, phone calls, and in person at the offender’s residence, various hospitals, and Airbnb’s.
[10] At least seven of the doulas who provided in person services were the victims of indecent acts. These ranged from the offender asking for and receiving massages to help induce labour, the offender receiving a massage or back rub while she was naked, the offender using a breast pump for nipple stimulation, purportedly to induce labour, the offender asking a doula to sit beside her on the bed while she was shirtless and using a breast pump, the offender pressing herself up against a doula while the offender was naked, the offender having a doula rub her back and buttocks while naked or partially naked, the offender taking her shirt off and crawling on the floor. With one of the doulas, the offender would disrobe and ask the doula to rub her shoulders and physically assist her to get in and out of the tub, making the doula feel like her sexual integrity was violated. This same doula walked into the bedroom of the Airbnb and observed the offender on the bed on her hands and knees, touching her vaginal area.
[11] During her interactions with the doulas, whether virtually or in person, the offender would typically feign being in labour and having contractions, breathing heavily, screaming, moaning, and crying. On one occasion, while on the phone with two doulas, the offender reported that she was sexually assaulted by doctors operating on her. On another occasion, the offender told a doula that she had given birth to a stillborn baby and then had a fictitious friend “Jenna” take over communication with the doula informing the doula that the offender had been rushed to the operating room as she was dying from hemorrhaging. On two occasions, as part of her deception, she sent an image of a stillborn baby to the doulas after purportedly giving birth, and another time she sent an image of an ultrasound. One doula spent an afternoon with the offender at the mall shopping for an outfit for her stillborn and a Build-A-Bear doll.
[12] Numerous doulas spent hours, days, and weeks with the offender, to provide support for a false pregnancy. They developed an emotional connection with the offender and some disclosed intimate details of their own lives to her. Victim impact statements for some of the doulas were read into the court record before Justice Gee on January 17, 2024. The transcript of the proceedings for that day is Exhibit 7 on this sentencing hearing. Many of these victims suffered financial losses from being unable to return to work, emotional harm, shame, anger, and loss of trust in people. Many of the victims say their relationships with family members, including spouses and children have been negatively affected because those family members have had to witness and deal with the emotional trauma experienced by the victims.
[13] The offender also entered a guilty plea to a public mischief charge as part of the original resolution. On February 21, 2023, she contacted Brantford Police to report that she had been sexually assaulted by A.W. The offender attended Brantford General Hospital for a sexual assault evidence kit. On February 22, 2023, the offender provided an audio and videorecorded KGB statement to a police detective in which she detailed the sexual assault. The offender then sent an e-mail to the Brantford police detective on the same date stating that she lied about the sexual assault on February 21st. In the e-mail she said, “I understand that this was wrong. I also understand that I was under oath, and you can now charge me”. The biology report from the Centre of Forensic Sciences relating to the sexual assault evidence kit that was submitted showed no DNA other than the offender’s.
[14] A.W. provided a victim impact statement. In it she said she suffers from Bipolar I and Bipolar II disorder and was in a manic state for weeks after the offender made the sexual assault allegation. The false allegation had an emotional toll on her and diminished her ability to trust others.
[15] When Justice Gee sentenced the offender on February 14, 2024, she had served the equivalent of 509 days or 16.7 months of pre-sentence custody with Summers credit. As part of the joint submission, the Crown and defence counsel asked Justice Gee not to credit the offender for this pre-sentence custody and impose the two years less a day CSO with maximum probation to follow. Justice Gee expressed concern about counsels’ request regarding the pre-sentence custody but acceded to their request and imposed the concurrent CSO on all twenty-one charges followed by three years of probation.
[16] From a review of the record before me, it does not appear that counsel provided Justice Gee with any caselaw to support their joint submission, nor did they ask him to assess the appropriate sentence for each offence, consider whether the sentences should be served consecutively or concurrently, and then determine if the combined sentence would be unduly long or harsh. The parties simply asked that Justice Gee impose the maximum CSO and maximum probation order concurrent on all counts, which he did.
CIRCUMSTANCES OF THE NEW OFFENCES AND IMPACT ON THE VICTIMS
[17] The offender committed the new offences in April 2024. These offences relate to Safe Families Canada and Tracy Lee Robb, and Sydney Poff.
Safe Families Canada and Tracy Lee Robb
[18] The Crown proceeded by summary conviction on Information Number 24-47102470. The offender entered guilty pleas to two offences that occurred on or between April 17 and 18, 2024: (i) that she did by a false pretence, with intent to defraud, obtain from Safe Families Canada pregnancy services having a value not exceeding $5000: s. 362(2)(b) of the Criminal Code; and (ii) that she did, without lawful excuse and with intent to harass Tracy Lee Robb, make or cause to be made repeated telephone calls to her: s. 372(3) of the Criminal Code.
[19] On April 17, 2024, the offender contacted Safe Families Canada, a Christian charitable organization that provides support to parents in crisis. The offender identified herself by a false name, “Kate Baker”, and claimed that she was about to undergo a stillbirth at nineteen weeks. Tracy Lee Robb was employed as a support worker with Safe Families, both in a paid and a volunteer capacity.
[20] The offender and Ms. Robb initially connected by text message and subsequently by voice call. They communicated for about eighteen hours between April 17th and April 18th. The offender told Ms. Robb that she was at McMaster Children’s Hospital in labour. The offender provided Ms. Robb with details about her physical and mental states as time went on. At one point, she described undergoing contractions of increasing frequency. At other points, they discussed the soon-to-be stillborn child. The offender said the child would be named Adelaide, and provided details about why she chose this name.
[21] The offender told Ms. Robb a detailed story about how she became pregnant as a result of a sexual assault and found out about her pregnancy at eleven weeks. She talked about how small the baby would be. She described the details of her medical treatment, for example that she was being given increased doses of Pitocin and was worried that she would need a Caesarean section. The offender and Ms. Robb also talked at length about their religious faith and the offender discussed whether she would have the child baptized.
[22] The offender also asked Ms. Robb for details about Ms. Robb’s own deliveries of her children. At one point, while listening to these details the offender began to make vocalizations that Ms. Robb later believed to be sexual in nature, although the offender denies that this was her motivation. The offender provided very detailed descriptions of her bodily processes as she progressed through her labour.
[23] At various points, Ms. Robb offered to attend the hospital to support the offender in person. However, the offender kept making excuses as to why this could not happen. Ms. Robb continued to support the offender remotely as she provided details of the trauma she was going through.
[24] All of the offender’s representations to Ms. Robb were false. There was no stillbirth; she was not pregnant; she did not attend hospital. Copies of the text message exchanges between the offender and Ms. Robb are attached to the agreed statement of facts which is Exhibit 9 on the sentencing hearing.
[25] In her victim impact statement, Ms. Robb described the profound impact the offences have had on every aspect of her life. She has lost trust in people which has resulted in loss of employment opportunities. The emotional toll has been devastating. She lives in constant fear of being deceived. Being victimized by the offender has affected her family life. She takes out her frustrations on her children and her relationship with her husband has suffered, including their intimacy.
Sydney Poff
[26] The Crown proceeded by indictment on Information Number 24-47102698. The offender entered guilty pleas to two offences that occurred on or between April 28 and 30, 2024: (i) that she did by a false pretence, with intent to defraud, obtain from Sydney Poff private doula services having a value not exceeding $5000: s. 362(2)(b) of the Criminal Code; and (ii) that she did, with intent to injure or alarm any person, convey by telephone text messages information that she knew was false: s. 372(1) of the Criminal Code.
[27] On April 30, 2024, the offender contacted Sydney Poff, who works as a doula. Identifying herself as “Jessica Baker”, the offender told Ms. Poff that she had lost her pregnancy at twenty-one weeks and needed to attend hospital for a stillbirth. She told Ms. Poff that her partner had left her because of this pregnancy loss.
[28] The offender signed an electronic contract to pay $250 for Ms. Poff’s doula services. Over the next two days, the offender and Ms. Poff exchanged over 600 text messages in which the offender provided details about her medical condition. She described her water breaking. She asked Ms. Poff to describe what her fetus would look like, to assist with her “preparation”. The offender told Ms. Poff that she would name the child Adelaide.
[29] All of the offender’s representations to Ms. Poff were false. She was not pregnant and there was no stillbirth. The offender never paid the agreed $250 for Ms. Poff’s services. Copies of the text message exchanges between the offender and Ms. Poff are attached to the agreed statement of facts, Exhibit 9 on the sentencing hearing.
[30] In her victim impact statement, Ms. Poff describes the financial and emotional impact of the crime. She too speaks of how it has negatively affected her family life. Ms. Poff explains how she felt empathy for the person she thought was Jessica Baker and how she wanted to do anything she could to support her. Those feelings changed to disgust and the feeling of violation when she learned of the offender’s fabrications.
CIRCUMSTANCES OF THE OFFENDER
[31] The offender is 26 years old. Prior to committing the offences for which she received the CSO, she had no criminal record. The offender is single and has no children. In the pre-sentence report (PSR), she characterized her upbringing as complicated due to her parents’ divorce when she was four years old, the financial difficulties of being raised by a single mother, and a strained relationship with her father, who would often miss or cancel visits with her. The offender remembers being very anxious as a child and experiencing irrational fears that her mother would also leave her.
[32] The offender did well academically and socially while in school. She had excellent marks in high school, participated in mainstream classes, took university level courses, and completed a French Immersion Program. According to her mother, she had many friends, a positive peer group, and no issues with authority figures. She received her Bachelor of Social Work Degree from Wilfrid Laurier University, Brantford Campus, in April 2020.
[33] The offender was ordered to undergo a psychiatric assessment after being charged with the initial offences. Dr. Gary Chaimowitz and Dr. Shawn Baldeo produced a report dated August 31, 2023 (the “Psychiatric Assessment Report”) which sets out the offender’s diagnosed mental disorders, her history of deception and dishonesty, and an assessment of her risk to re-offend and cause psychological harm to the public.
[34] The offender has worked as a Registered Social Worker in a variety of roles. She advised the clinical team involved in preparing the Psychiatric Assessment Report that she often quit jobs before she was fired due to issues related to her dishonesty. She reported being fired from her last job for making a false complaint of sexual assault against her 11-year-old client. As a result of her criminal charges and convictions, her registration with the Ontario College of Social Workers and Social Service Workers was suspended.
[35] The offender’s health records indicate a long history of suicidal ideation and behaviour beginning at 17 years old. In these records, she reports issues with self harm by scratching, cutting, and burning herself since she was 11 years old. However, the offender admitted that, in the over eleven-year period between 2011 and 2023, she attended for approximately 178 hospital visits with presenting issues that she feigned or self-inflicted to obtain medical intervention.
[36] The Psychiatric Assessment Report refers to the OPP having flagged the offender “due to approximately 60 sexual assault accusations across the province, at various hospitals, which were determined to be false”. [3] The offender’s mother reported that the offender lied about her father and brother sexually assaulting her, about having cancer, about work issues, and about the death of several family members. She also lied about issues reported in her medical file such as her brother committing suicide, her mother dying from injuries sustained in a car accident, ongoing sexual assaults including one following a home invasion, and others by former colleagues and clients. The offender has been investigated by multiple healthcare programs and has been cautioned by police about potential charges relating to these false claims.
[37] The psychological testing completed with the offender and included as part of the Psychiatric Assessment Report suggested a diagnosis of Borderline Personality Disorder with traits of Antisocial Personality Disorder, and other subsumed diagnoses of Persistent Depressive Disorder, likely with periods during which criteria were also met for Major Depressive Disorder, and Generalized Anxiety Disorder. [4]
[38] The Psychiatric Assessment Report also addresses a historical diagnosis of Factitious Disorder, a diagnosis which is “made when an individual falsifies or induces physical or psychological symptoms to present themselves as ill, injured, or impaired for the purpose of receiving attention and care in a medical setting”. [5] The individual is often unaware of their illness or its motivation. The motivation is to meet an internal need rather than some secondary motivation such as financial gain or to avoid return to work. Those diagnosed with Factitious Disorder usually deny falsifying symptoms and demand even more medical attention.
[39] According to the assessors, the sheer number and diversity of conditions the offender reported, both medical and psychological, is atypical of Factitious Disorder. For instance, false allegations of sexual assault are rare for this disorder and the offender also made false reports beyond medical and healthcare professionals to family, friends, professors, employers, doulas, and police, which raises questions about the motivation for her behaviour.
[40] Ultimately, the findings of the Psychiatric Assessment Report are that the offender’s “deception was fully conscious, purposeful, and deliberate”. [6] When confronted with her deception, she acknowledged it, apologized, and sought forgiveness which is unlike those with Factitious Disorder who insist there is a mistake or that further interventions were required to verify their claims. The assessors found the offender “to possess a good deal of knowledge about Factitious Disorder” and to be “invested in this diagnosis, going so far as to suggest she was not criminally responsible because of it”. [7] It was noted that she declined hospital admission or community follow-up on a number of occasions, which would have extended the attention and sympathy she said she was seeking. Again, this was another indicator against a diagnosis of Factitious Disorder.
[41] Ultimately, Borderline Personality Disorder was found to be an appropriate diagnosis for the offender. Based on the testing performed for the psychological risk assessment, likely motivations for the offender’s falsified or induced medical symptoms and accusations of sexual assault “include reducing isolation by having people with whom she could socialize (albeit often virtually), seeing professionals and paraprofessionals as substitute friends, experiencing enjoyment or pleasure at the escalating risks she was taking, and exploring aspects of her sexual identity she felt unable or unwilling to explore in a more appropriate, healthy manner”. [8]
[42] The Psychiatric Assessment Report then states the following:
Ms. Braun’s behaviours-feigning pregnancy and labour, accusing family members and clients of sexual assault, claiming to have been sexually assaulted by strangers, as well as her behaviour with some of the doulas, strongly suggest the possibility of a sexual secondary motive.. [9]
[43] While being assessed the offender identified herself as a lesbian. The authors of the report stated:
Further, given her sexual preference for women, there is a likelihood that there was an element of secondary gain in the form of sexual gratification. Specifically, Ms. Braun underwent a number of invasive procedures, including the use of rape kits and vaginal exams including pap smears, she disrobed in front of others, received massages while naked or partially naked, and was seen to be masturbating on at least one occasion by a doula. [10]
[44] The risk assessment portion of the Psychiatric Assessment Report placed the offender’s risk of re-offending in a manner similar to the original charges as likely high because of the number of charges related to doulas, her at least 60 false allegations of sexual assault, and numerous attendances at emergency departments in the year leading up to her first arrest. [11] The report goes on to say:
Ms. Braun also demonstrates limited insight, poor self-control, severe emotional dysregulation, and a surprising lack of empathy or remorse for her behaviour. Despite being under the care of both a psychiatrist and psychotherapist at the time, she had not availed herself of the assistance that was available. Untreated, her risk for reoffending would be considered high, with her behaviour high risk for causing psychological harm and low risk for causing physical harm. [12]
[45] The finding that the offender was a high risk to reoffend in a criminal manner in the community was arrived at when considering her major mental health diagnoses, her childhood history of dependency and fear of being abandoned, and her lack of insight and remorse. The specific circumstances of her original offences, their longevity, and the deception involved demonstrated an escalating level of high-risk behaviours. According to the authors of the Psychiatric Assessment Report “[h]er underlying borderline and antisocial traits predispose her to engage in behaviours which can cause psychological harm to the public” and “the victims of her reoffending will likely be random in nature”. [13]
[46] To mitigate her risk of recidivism, Dr. Chaimowitz and Dr. Baldeo recommended structured Dialectical Behaviour Therapy (DBT), other psychotherapeutic programs to develop insight, coping and mood regulation, and ongoing adherence to medications to manage her mood and anxiety disorders. However, they stated that the prognosis is guarded because “[w]hile she has had structured psychotherapy, her level of genuine engagement and inability to be truthful with her healthcare providers have interfered with the efficacy of her treatment”. [14]
[47] Dr. Chaimowitz and Dr. Baldeo opined that the offender would benefit from an intense DBT program with a follow up skills group with a practitioner who is fully aware of her history. However, they conclude their report as follows:
Ms. Braun is very likely to continue to offend and create victims. Her various diagnoses do not capture the deliberate component of her risk behaviours. Given the severity of her maladaptive personality, treatment may modify offending frequency, but will not, in our opinion, stop it. [15]
[48] The offender’s mother is the only family member who maintains a relationship with her. Her two older siblings are estranged from her due to her involvement in the criminal justice system. The offender told the author of the PSR that she feels her mother has tried to make her accountable for her criminal behaviour, but the offender recognizes that she can take advantage of or easily manipulate her mother, which has negatively impacted their relationship. She feels her mother completely distrusts her.
[49] Amber Johnson, a Court Services Case Manager with the Brant-Haldimand-Norfolk Canadian Mental Health Association (CMHA), who has worked with the offender and her mother since March of 2023 corroborated the offender’s characterization of her relationship with her mother. Ms. Johnson described the offender’s mother as loving and supportive and someone who would attempt to ensure the offender’s compliance with conditions. However, the offender does not see her mother as an authoritative figure but rather someone she can manipulate. Ms. Johnson expressed her concern to the author of the PSR that the offender’s mother lacks the necessary skills to deal with the offender’s mental health issues and manipulative behaviours without additional supports.
[50] The offender’s mother spoke with the probation and parole officer to provide her input for the PSR. She acknowledged that her daughter can manipulate her and that she knows very little about her mental health issues, specifically Borderline Personality Disorder, but she is committed to offering her daughter emotional and financial support when she is released from custody. The offender has no income, no savings and is financially dependent on her mother.
[51] The offender’s mother advised the author of the PSR that she was surprised that her daughter reoffended after being released on the CSO. She reported that for the brief time that she was serving the CSO in the community, her daughter was working through DBT workbooks on her own, was attending group, had the support of a nurse practitioner and was under the care of a psychiatrist. The author of the PSR confirmed that while serving the CSO in the community, the offender was participating in therapy and group sessions. Although she had the support of her CMHA worker, group counselling, a nurse practitioner, a CSO supervisor and a psychiatrist, the offender committed the new offences relating to Ms. Robb and Ms. Poff. Accordingly, and due to the offender’s limited insight into her behaviour and intensive mental health needs, the author of the PSR deemed her not suitable for community supervision.
LEGAL PRINCIPLES
[52] The public interest test is used to measure the acceptability of joint submissions. [16] A sentencing judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. [17] This is a stringent test. The high threshold for rejecting a joint submission is met when, despite the public interest considerations that support imposing the jointly proposed sentence, 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”. [18] When assessing a joint submission, sentencing judges should “avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts”. [19]
[53] The public interest test is a stringent one because properly conducted plea resolutions “benefit not only the accused, but also victims, witnesses, counsel, and the administration of justice generally”. [20] The most important factor is certainty. [21] Accused persons benefit from joint submissions because “the Crown agrees to recommend a sentence that the accused is prepared to accept”, and “[t]his recommendation is likely to be more lenient than the accused might expect after a trial and/or contested sentencing hearing”. [22] Accused persons are less likely to give up their right to a trial on the merits unless they have “some assurance that [trial judges] will in most instances honour agreements entered into by the Crown”. [23]
[54] The stringent test for rejection of joint submissions also provides certainty for the Crown “because there is less risk that what Crown counsel concludes is an appropriate resolution of the case in the public interest will be undercut”. [24] The certain or near certain acceptance of joint submissions provides potential benefits for the Crown, such as the guarantee of a conviction, avoiding the potential for an acquittal even on cases that may suffer from flaws. [25] Resolution of cases by way of a guilty plea in exchange for a joint submission benefits victims and witnesses, who are spared “the emotional cost of a trial”. [26] The guilty plea may provide comfort to victims as it indicates the accused’s acknowledgment of responsibility and expression of remorse. [27]
[55] Joint submissions also “play a vital role in contributing to the administration of justice at large”. [28] If there is a high degree of certainty that joint submissions will be accepted, it encourages accused persons to plead guilty and guilty pleas save the justice system time, resources and expenses which can be used for other matters. [29] This provides a significant benefit. Joint submissions on sentence that avoid trials permit the justice system to function more efficiently or as Justice Moldaver stated in Anthony-Cook, “[i]ndeed, 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 weight”. [30] The parties must have a high degree of confidence that joint submissions will be accepted. Otherwise, “the parties may choose instead to accept the risks of a trial or a contested sentencing hearing”, [31] and the benefits to the administration of justice at large will be lost.
[56] Therefore, sentencing judges must exhibit restraint by “rejecting joint submissions only where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system”. [32] However, certainty is “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”. [33]
[57] Sentencing judges must apply the public interest test when they are considering “jumping” or “undercutting” a joint submission. [34] A judge who is concerned that the severity of a joint submission may offend the public interest, “should be mindful of the power imbalance that may exist between the Crown and defence, particularly where the accused is self-represented or in custody at the time of sentencing”. [35] These are factors which “may temper the public interest in certainty and justify ‘undercutting’ in limited circumstances”. [36] However, a judge who is considering “undercutting” a joint submission “should bear in mind that the community’s confidence in the administration of justice may suffer if an accused enjoys the benefits of a joint submission without having to serve the agreed-upon sentence”. [37]
[58] Although the SCC in Anthony-Cook rejected the “fitness test” and “demonstrably unfit test” for assessing joint submissions in favour of the more stringent public interest test, the fitness of the proposed sentence is “a relevant consideration in applying the public interest test”. [38] As the majority of the Alberta Court of Appeal said in R. v. Naslund, “whether a joint submission is fit on the basis of conventional sentencing principles is a relevant, though not determinative, consideration when deciding whether accepting such a sentence would bring the administration of justice into disrepute”. [39] The Alberta Court of Appeal cited jurisprudence from Newfoundland and Labrador, a jurisdiction that has long utilized the “public interest” test ultimately adopted in Anthony-Cook. [40] The Newfoundland and Labrador Court of Appeal said this in R. v. Oxford:
That is not to say that consideration of basic sentencing principles is to be jettisoned completely when considering a joint submission. Of course they are relevant; however, their relevance is to provide a screen, along with other considerations, to analyze the appropriateness of the joint submission in the context of the circumstances leading to the guilty plea and the “bargained” proposed sentence but always for the purpose of determining whether, if the proposal is accepted, the administration of justice would be brought into disrepute or it would be contrary to the public interest. [41]
[59] In Oxford, the Newfoundland and Labrador Court of Appeal noted that determining whether a joint submission is contrary to the public interest “requires examination of the sentences that could be expected to be imposed in circumstances not involving a joint submission”. [42]
[60] In Anthony-Cook, the SCC affirmed the Newfoundland and Labrador Court of Appeal case of R. v. Druken for having adopted the proper test regarding joint submissions. [43] In Druken, Rowe J.A. (as he then was) said that “the question of whether the sentence is unreasonable must be considered” when making the public interest determination. [44] The Newfoundland and Labrador Court of Appeal then said that “there must be some minimum, having regard to the facts of each case, below which a proposed sentence cannot be accepted”. [45]
[61] The majority of the Alberta Court of Appeal in Naslund added “that there must likewise be some maximum sentence above which the joint submission cannot be accepted”. [46] The majority of the Alberta Court of Appeal explained why a sentencing judge must consider both the benefits of the joint submission process and the fitness of the proposed sentence:
This makes eminent sense. Indeed, were the reasonableness of the sentence not part of the equation, it would be impossible to determine whether the sentence was “unhinged from the circumstances of the offence and the offender”: Anthony-Cook, para 34, emphasis added. After all, a sentence cannot be “unhinged” in the abstract; it is unhinged from something, namely the gravity of the offence and the degree of responsibility of the offender. Proportionality is thus a necessary (though not sufficient) consideration when determining whether a joint submission meets the “public interest” test. [47]
APPLICATION OF THE LEGAL PRINCIPLES
[62] On January 7, 2025, when the Crown and defence counsel initially put forward their joint submission proposing termination of the CSO and a consecutive 3-year penitentiary sentence, the transcripts of the proceedings before Justice Gee were not available. I was concerned at that time that the proposed sentence may be unduly harsh and expressed my concern to counsel.
[63] Subsequently, transcripts of the sentencing proceedings relating to the original charges were produced. They contained the facts admitted by the offender in support of her guilty pleas to the twenty-one charges, the additional facts she was prepared to admit relating to additional victims, the victim impact statements, the submissions of counsel in support of their joint submission that a CSO was appropriate, and Justice Gee’s reasons for accepting their joint submission. The transcripts also disclosed the pre-sentence custody that the offender had served up to the date of sentencing. As I stated earlier in these reasons, the 16.7 months of pre-sentence custody was not attributed to any of the charges to which the offender entered guilty pleas.
[64] On May 16, 2025, at the sentencing hearing, I again advised counsel that I was considering “undercutting” the joint submission. The specific concerns I raised with counsel focused on the net effect of terminating the CSO and imposing the consecutive penitentiary sentence proposed. I also asked counsel to provide submissions on how I should deal with the fact that the offender served 16.7 months of pre-sentence custody before being sentenced to the maximum CSO which she breached within two months.
[65] I pointed out that, at the sentencing hearing before Justice Gee, the Crown and defence counsel made an alternative joint submission. The parties jointly submitted that a sentence of 2 years jail less pre-sentence custody was appropriate if Justice Gee were to find that a CSO was unavailable or inappropriate. Had Justice Gee accepted this alternative joint submission, it would have resulted in the offender being sentenced to serve a further 7.3 months in jail rather than being placed on a CSO of maximum duration. I asked counsel whether the principle of totality required me to give some consideration to the foregoing circumstances.
[66] First, I note that the Crown and defence counsel remained steadfast in advancing the joint submission. Defence counsel stated that she had firm instructions from the offender to accept the sentence she had bargained for with the Crown, a sentence that was more lenient than the Crown would have proposed after a trial or contested sentencing hearing. Defence counsel urged me on behalf of her client to terminate the CSO and impose the penitentiary sentence to permit the offender to obtain DBT which is available to women offenders according to the Correctional Service Canada website.
[67] A sentencing judge cannot rely only on the judgment of counsel that a joint submission is appropriate. Instead, the sentencing judge must arrive at an independent conclusion, based on an adequate record, that the joint submission does not bring the administration of justice into disrepute or would otherwise be contrary to the public interest. [48]
[68] Crown counsel, Mr. McNaughton, submits that an offender who receives a CSO, receives a more lenient disposition than a sentence served in a reformatory. This is especially so in the offender’s case. She and defence counsel made a joint submission to Justice Gee not to credit her with any pre-sentence custody to make a CSO available. The goal the parties jointly advanced at that time was to have the offender supervised in the community for the maximum duration possible. Mr. McNaughton says that there is a need for finality in sentencing proceedings. The offender cannot now seek to revisit the propriety of the sentence she received, including the component of the joint submission which asked the judge not to give credit for her pre-sentence custody. She cannot now say that she made a bad deal and should have accepted a custodial sentence of shorter duration than the CSO instead. Mr. McNaughton maintains that the offender is the author of her own misfortune for having blatantly breached the CSO by committing new offences a short time after it was imposed.
[69] I accept the Crown’s submissions on this point. The offender did not appeal the sentence imposed by Justice Gee and defence counsel did not question its validity at the sentencing hearing before me when I raised my concerns. It is not my role to revisit the appropriateness of the CSO that was imposed but rather to determine whether it should now be terminated.
[70] Where an offender breaches a condition of a CSO, there is a presumption that they serve the remainder of the sentence in jail. [49] However, s. 742.6(9) of the Criminal Code provides sentencing judges with a variety of possible orders when an offender breaches a CSO. The sentencing judge has discretion to determine which of the available orders is appropriate in all of the circumstances. [50] In deciding on which order is appropriate, “the sentencing judge must consider all of the circumstances, including the nature and circumstances of the breach; the circumstances of the offender; the time remaining on the conditional sentence order; and the ordinary principles of sentencing (including, for example, denunciation, general and specific deterrence, proportionality, and restraint)”. [51] In R. v. Antaya, the Ontario Court of Appeal said that in cases where the CSO imposed was longer than an appropriate sentence of incarceration would have been, this may also be a relevant factor in deciding not to terminate it. The Court noted that “[t]hese factors must be considered within the particular context of the conditional sentencing regime”. [52]
[71] The Crown and defence counsel have jointly submitted that termination of the CSO is the appropriate order. It is difficult to apply the Anthony-Cook principles to a joint submission made in respect of a breach of a condition of a CSO. This is especially so in the present case where the joint submission is that I should make the most restrictive order. Furthermore, the administration of justice does not benefit from joint submissions made in respect of CSO breaches to the same extent as joint submissions made after negotiated guilty pleas. CSO breach hearings are meant to be conducted expeditiously and most times on a paper record without viva voce evidence. The saving of time, expenses and court resources is not as significant.
[72] Notwithstanding these observations, I find that in the offender’s case it is appropriate to terminate the CSO and order that the offender serve the remainder of the sentence in jail as jointly recommended. Although the CSO imposed was longer than the sentence of incarceration that would have been imposed had Justice Gee accepted the alternative joint submission, the nature and circumstances of the breach were egregious.
[73] A short time after the imposition of the CSO, the offender breached it by committing the same offences for which it had been imposed, causing lasting emotional and other consequences to two additional victims. The breaches were deliberate. Permitting the offender to serve the remaining portion of the sentence in the community would endanger the safety of the community. While in the community, the offender has proven herself to be unable or unwilling to complete the DBT necessary to reduce the risk of her committing further offences and causing psychological harm to further victims. Without DBT in a structured setting, the offender poses a significant level of ongoing threat. Considering all of the circumstances and the ordinary principles of sentencing, termination of the CSO is the most appropriate order.
[74] I turn now to the joint submission in respect of the new offences. The Crown and defence counsel were unable to provide caselaw to support their joint submission of 3 years jail to be served consecutively. This is not surprising. The offences committed by the offender against Ms. Robb and Ms. Poff are unique and do not fit easily within an established range of sentence. [53] This poses challenges in assessing the reasonableness or fitness of the sentence, a relevant consideration when applying the public interest test.
[75] Notwithstanding the absence of comparator cases, with similar circumstances to the offender’s case, it is incumbent on me to determine whether the joint submission is unhinged from the circumstances of the offences and the offender. I find that it is not. The offender is a repeat offender who poses a significant continuing threat to the community. The offences she committed had a significant impact on the victims, Ms. Robb and Ms. Poff. The sanction I impose must consider the objective of separation of the offender from society where necessary, which is a relevant consideration in this case.
[76] Crown counsel states that the jump principle is at play. I find that the sentence proposed is harsher than the sentence the offender received for her previous offences but moderate enough to not be crushing or discourage rehabilitation efforts. It also takes into account the offender’s mental health issues. In fact, the parties jointly submit that the sentence has a rehabilitative component since it is hoped that the offender will receive DBT while incarcerated. A consideration of the remaining principles of sentencing including denunciation and deterrence, especially specific deterrence, support the imposition of a 3-year sentence in this case.
[77] I am mindful of the caution the SCC gave in Anthony-Cook to judges who are considering “undercutting” a joint submission. The community’s confidence in the administration of justice may suffer if an offender “enjoys the benefits of a joint submission without having to serve the agreed-upon sentence”. [54] Although the offender is in custody at the time of sentencing, she has been represented by a lawyer throughout these proceedings and the proceedings before Justice Gee. I find that the power imbalance which may exist between the Crown and defence is not a consideration that tempers the public interest in the certainty of the joint submission in this case. The offender made an informed decision to accept the agreed-upon sentence to avoid the risk of a harsher sentence after a trial or a contested sentencing hearing.
[78] In my view, if I were to impose a sentence other than the sentence that has been jointly proposed, I would merely be substituting my view of what a fit sentence is in the circumstances. The joint submission is not so unhinged from the gravity of the offences and the degree of responsibility of the offender that it would bring the administration of justice into disrepute or be contrary to the public interest.
[79] I terminate the CSO and direct that the offender serve the remainder of the sentence in jail. In respect of the two offences relating to Ms. Poff, I impose a 2-year jail sentence concurrent to each other but consecutive to the remainder of the CSO. In respect of the two offences relating to Ms. Robb, for which the Crown proceeded summarily, I impose a 1-year jail sentence concurrent to each other but consecutive to the offences relating to Ms. Poff and consecutive to the remainder of the CSO. This results in a global sentence of 3 years jail for the new offences consecutive to the time the offender has left to serve on the CSO. It is appropriate that the offender serve the sentences relating to the new offences consecutively to the CSO. They do not arise out of the same event or series of events as the offences for which she received the CSO.
Released: June 9, 2025
Signed: Justice J.P.P. Fiorucci
Footnotes
[1] R. v. Anthony-Cook, 2016 SCC 43.
[2] R. v. Garcia and Silva, [1970] 3 C.C.C. 124 (Ont. C.A.).
[3] Psychiatric Assessment Report, St. Joseph’s Healthcare Hamilton, Dr. Gary A. Chaimowitz and Dr. Shawn Baldeo, August 31, 2023, p. 22: Exhibit 5 on the sentencing hearing.
[4] Ibid, at p. 34.
[5] Ibid, at p. 35.
[6] Ibid, at p. 35.
[7] Ibid, at p. 35.
[8] Ibid, at p. 35.
[9] Ibid, at p. 35.
[10] Ibid, at p. 39.
[11] Ibid, at p. 36.
[12] Ibid, at p. 36.
[13] Ibid, at p. 41.
[14] Ibid, at p. 41.
[15] Ibid, at p. 42.
[16] R. v. Anthony-Cook, supra, at paras. 32-34.
[17] Ibid, at para. 32.
[18] Ibid, at para. 33.
[19] Ibid, at para. 33, citing R. v. O.(B.J.), 2010 NLCA 19, at para. 56.
[20] Ibid, at para. 35, citing Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (1993) (the “Martin Committee Report”), at p. 281.
[21] Ibid, at para. 37.
[22] Ibid, at para. 36.
[23] Ibid, at para. 37, citing R. v. Cerasuolo (2001), 151 C.C.C. (3d) 445 (Ont. C.A.), at para. 9.
[24] Ibid, at para. 38, citing Martin Committee Report, at p. 328.
[25] Ibid, at para. 39.
[26] Ibid, at para. 39.
[27] Ibid, at para. 39.
[28] Ibid, at para. 40.
[29] Ibid, at para. 40.
[30] Ibid, at para. 40.
[31] Ibid, at para. 41.
[32] Ibid, at para. 42.
[33] Ibid, at para. 43, citing R. v. DeSousa, 2012 ONCA 254, per Doherty J.A., at para. 22.
[34] Ibid, at para. 52.
[35] Ibid, at para. 52.
[36] Ibid, at para. 52.
[37] Ibid, at para. 52, citing R. v. DeSousa, supra, at paras. 23-24.
[38] R. v. Naslund, 2022 ABCA 6, at para. 68; R. v. Huston, 2024 BCCA 179, at paras. 12 and 16.
[39] R. v. Naslund, ibid, at para. 67, (emphasis in original).
[40] Ibid, at para. 69.
[41] R. v. Oxford, 2010 NLCA 45, at para. 68.
[42] Ibid, at para. 83.
[43] R. v. Anthony-Cook, supra, at para. 29, citing R. v. Druken, 2006 NLCA 67, at paras. 29 and 33.
[44] R. v. Druken, ibid, at para. 18.
[45] Ibid, at para. 19.
[46] R. v. Naslund, supra, at para. 71, (emphasis in original).
[47] Ibid, at para. 73, (emphasis in original).
[48] Ibid, at para. 89.
[49] R. v. Proulx, 2000 SCC 5, at paras. 21 and 38-39; R. v. Antaya, 2022 ONCA 819.
[50] R. v. Antaya, ibid, at para. 7.
[51] Ibid, at para. 9.
[52] Ibid, at para. 9.
[53] R. v. Harasuik, 2023 ONCA 594.
[54] R. v. Anthony-Cook, supra, at para. 52.