ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO. : 12-AP-33
DATE : 20120927

B E T W E E N:

HER MAJESTY THE QUEEN - and - MARY WAGNER

Richard Nathanson , for the Crown, respondent Peter Boushy and Russell Browne for the accused, appellant

HEARD: September 19, 2012

Mr. Justice Kenneth L. Campbell:

Reasons for Judgment

Summary Conviction Appeal

1. Introduction

[ 1 ] On March 21, 2012 the appellant, Mary Wagner, was found guilty of one count of mischief and two counts of breach of probation by the Honourable Mr. Justice S.F. Clements of the Ontario Court of Justice. That same day, the appellant was sentenced to a 92 day term of imprisonment and a three year term of probation on each count, with these sentences to run concurrently. By the time she was sentenced, the appellant had already served 88 days in pre-trial custody. As a result, the accused received, effectively, a six month term of imprisonment in this case, plus a three year term of probation.

[ 2 ] The appellant appeals against this custodial sentence. First, she challenges the general fitness of the sentence imposed. The parties had advanced a joint submission of “time served” at trial, but this was rejected by the trial judge. The appellant argues that the trial judge was wrong to reject this joint submission. The Crown argues that it was open to the trial judge to reject the joint submission and impose the additional 92 day custodial sentence. Second, the appellant contends that the conduct of the sentencing hearing in this case led to a reasonable apprehension of bias on the part of the trial judge. The Crown contends that while some of the comments made by the trial judge during the sentencing hearing may have been “inelegant” or “unfortunate,” they did not create a reasonable apprehension of bias. The Crown seeks to uphold the general fitness of the sentence imposed at trial.

2. The Factual Background

a. The Mischief Count

[ 3 ] The appellant was tried on an Information alleging that on November 8, 2011, in the City of Toronto, she did, without legal justification or excuse, and without colour of right, “willfully interfere with the lawful operation” of Bloor West Village Women’s Clinic by “disturbing patients.”

[ 4 ] According to the findings of fact made by the trial judge, the appellant appeared at the Bloor West Village Women’s Clinic mid-morning on November 8, 2011, and somehow gained entry to the electronically controlled, secure waiting room of the Clinic. It is common ground that she was not welcome. Abortions are performed at the Clinic and the appellant is opposed to abortion. Once inside, she began talking to the patients who were in the waiting room. While no one testified as to what the appellant said to these patients, it is safe to assume that, as some of them ended up distressed and crying, the appellant was speaking to them about abortion.

[ 5 ] Patricia Hasen, part-owner and employee of the Women’s Clinic, summoned the police and asked the appellant to leave the premises. She did not leave. The trial judge concluded, based on this evidence, that the appellant became, at least at that point, a trespasser on the premises. When Ms. Hasen tried to ameliorate the situation by moving her patients into a secure interior area of the Clinic, the appellant tried to follow. This led to something of a struggle at the doorway, with Ms. Hasen trying to close the door leading to this interior area, and the appellant trying to keep the door open so she too could enter this area. During this struggle, Ms. Hasen demanded several times that the appellant release the door. Eventually, Ms. Hansen was able to shut and secure the door. However, the appellant had managed to prevent one of the patients from entering this secure area, and this patient had to be brought into the area through another entrance. The entire confrontation between Ms. Hasen and the appellant lasted less than five minutes.

[ 6 ] When the police arrived on the premises, the appellant was the only person in the Clinic waiting room. Following a brief conversation with the Clinic staff, the police asked the appellant to leave the premises, but she refused. The appellant was then arrested for trespassing.

[ 7 ] In his detailed Reasons for Judgment , the trial judge concluded that, by her actions at the Clinic that day, the appellant “not only intended to communicate her views about abortion” to the patients in the Clinic, but also that she “intended to physically interfere, interrupt, or obstruct patients and staff” who were “going about their lawful business.” Further, the trial judge concluded that the appellant “intended to interfere with the operation” of the Clinic by “preventing people from entering” or by entering the Clinic herself, and that she had “no lawful authority, excuse, or colour of right” to engage in this conduct. In the result, the trial judge concluded that the Crown had established that the appellant had committed the offence of mischief contrary to s. 430(1) (d) of the Criminal Code , R.S.C. 1985, chap. C-46. The trial judge rejected the defence argument that the conduct of the appellant fell within s. 430(7) of the Code , which provides that the offence of mischief is not committed by one who attends a place “for the purpose only of obtaining or communicating information.”

b. The Breach of Probation Counts

[ 8 ] The appellant was also tried on two counts of breaching probation orders. Pursuant to the terms of the first probation order, made on March 28, 2011, the appellant was prohibited from being within 200 meters of the Bloor Street West Village Women’s Clinic. Pursuant to the terms of the second probation order, made on September 13, 2011, the appellant was not to associate, contact or communicate with Ms. Hasen or any employee or official of the Bloor Street West Village Women’s Clinic. The appellant was charged with failing to comply, without reasonable excuse, with the terms of those two probation orders.

[ 9 ] In his Reasons for Judgment the trial judge concluded that, because the “uncontradicted” evidence at trial was that the appellant was bound by these probations orders at the time she committed the offence of mischief at the Women’s Clinic on November 8, 2011, the Crown had established beyond a reasonable doubt that she was in breach of both orders.

3. The Positions of the Parties at Trial on the Issue of Sentence

[ 10 ] The parties advanced a joint submission on the issue of sentence. The Crown and the defence both sought a “time served” disposition and a three year term of probation. As already noted, the appellant had already served nearly three months in pre-trial custody by the time she was sentenced.

[ 11 ] In advancing this position, the Crown relied on the victim impact evidence from Ms. Hansen as to the financial and emotional problems caused to the Clinic staff and its patients by the appearances of the appellant at the Clinic. The Crown also reviewed the appellant’s criminal history of similar mischief offences. The appellant had been convicted of two such offences in Vancouver in 2000 and 2001, and another two such offences in Toronto in 2010 and 2011. Relying on R. v. Gibbons , [1997] O.J. No. 1811 (Prov.Div.) , the Crown commented on the need for a “deterrent sentence” to prevent the appellant from “continuing her conduct and blatantly breaching court orders.” The Crown noted, however, that the appellant’s 88 days of pre-trial custody was “nearly double” what she had served for her last conviction for mischief. The Crown expressly indicated that he was not asking the trial judge to “jump” the joint submission being advanced by the parties.

[ 12 ] In briefly advancing this same “time served” position, defence counsel also highlighted that, in relation to her two most recent convictions for mischief offences, the appellant had served custodial sentences of 42 and 48 days respectively.

4. The Fitness of the Sentence Imposed

a. The Governing Deferential Standard of Appellate Review

[ 13 ] The law is clear that sentences imposed by trial judges are entitled to great deference. In R. v. M. (C.A.) , 1996 230 (SCC) , [1996] 1 S.C.R. 500, Lamer C.J.C., delivering the judgment of the Supreme Court of Canada, articulated some of the many reasons justifying this deferential approach, at para. 91:

This deferential standard of review has profound functional justifications. As Iacobucci J. explained in Shropshire , at para. 46, where the sentencing judge has had the benefit of presiding over the trial of the offender, he or she will have had the comparative advantage of having seen and heard the witnesses to the crime. But in the absence of a full trial, where the offender has pleaded guilty to an offence and the sentencing judge has only enjoyed the benefit of oral and written sentencing submissions (as was the case in both Shropshire and this instance), the argument in favor of deference remains compelling. A sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps more importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender’s crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be “just and appropriate” for the protection of that community. 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 talking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly.

[ 14 ] Moreover, the governing appellate court authorities suggest that, in the absence of some error in principle, a failure to consider a relevant factor, or an over-emphasis of appropriate factors, the sentence imposed by a trial judge should not be interfered with on appeal. Indeed, the Supreme Court of Canada has held that sentences should only be altered on appeal when they are “clearly unreasonable,” “demonstrably unfit” or a “substantial and marked departure from sentences customarily imposed for similar offenders committing similar crimes.” See: R. v. Shropshire , 1995 47 (SCC) , [1995] 4 S.C.R. 227, at para. 46-50 ; R. v. M.(C.A.) , at para. 89-94 ; R. v. McDonnell , 1997 389 (SCC) , [1997] 1 S.C.R. 948, at para. 15-17 ; R. v. W.(G.) , 1999 668 (SCC) , [1999] 3 S.C.R. 597, at para. 18-19 ; R. v. Proulx , 2000 SCC 5 () , [2000] 1 S.C.R. 61, at para. 18-19 ; R. v. Turcotte (2000), 2000 14721 (ON CA) , 48 O.R. (3d) 97 (C.A.) at para. 16-17 , 25, 29-30; R. v. M.(L.) , 2008 SCC 31 () , [2008] 2 S.C.R. 163 (S.C.C.) at para. 14-15 ; R. v. Ramage (2010), 2010 ONCA 488 () , 257 C.C.C. (3d) 261 (Ont.C.A.) at para. 69-73 .

b. The Significance of Joint Submissions

[ 15 ] Joint submissions on the issue of sentence are entitled to considerable weight. Indeed, normally joint submissions should not be rejected by the trial judge unless the submission is contrary to the public interest and the proposed sentence would bring the administration of justice into disrepute. This is a high threshold. Indeed, whenever a trial judge decides to reject a joint submission and impose some other sentence, the trial judge is obliged to explain and justify why he or she has chosen to depart from the joint submission. See: R. v. Dorsey , 1999 3759 (ON CA) , [1999] O.J. No. 2957 (C.A.) at para. 11 ; R. v. Cerasuolo (2001), 2001 24172 (ON CA) , 151 C.C.C. (3d) 445 (Ont.C.A.) at para. 8-9 ; R. v. Lazo , 2012 ONCA 389 () , [2012] O.J. No. 2547 (C.A.) at para. 8 ; R. v. DeSousa (2012), 2012 ONCA 254 () , 109 O.R. (3d) 792 (C.A.) at para. 15-25 ; R. v. Reid , [2011] O.J. No. 5904 (C.A.) at para. 14 ; R. v. Haufe , 2007 ONCA 515 () , [2007] O.J. No. 2644 (C.A.) at para. 4-6 ; R. v. E.(R.W.) (2007), 2007 ONCA 461 () , 86 O.R. (3d) 493 (C.A.) at para. 22-31 .

c. The Reasons for Sentence by the Trial Judge

[ 16 ] After hearing the submissions of counsel, but before delivering his Reasons for Sentence , the trial judge observed that joint submissions were “not binding on a trial judge” but commanded “considerable deference.” He also commented that joint submissions should not be rejected unless they were “contrary to the public interest” and would “bring the administration of justice into disrepute.” The trial judge then concluded that, in his view, the proposed sentence was in fact contrary to the public interest and would indeed bring the administration of justice into disrepute. The trial judge then provided the appellant with an opportunity to address the court.

[ 17 ] After hearing from the appellant personally, the trial judge delivered his Reasons for Sentence . In these Reasons the trial judge commented that the appellant had displayed an “utter contempt” for previous court orders and had demonstrated a “lack of respect for the rights of others, and the rule of law.” The trial judge also noted that, by purporting to act according to a “higher moral obligation” than the laws of our country, the appellant represented a “potential threat and danger to the well-being and safety of civil society” and sowed the “seeds of lawlessness … disorder, or perhaps even anarchy.” The trial judge stated that, in light of the appellant’s stated intention to continue to disobey the law, it would be “futile” to “consider anything but a further custodial sentence.” The trial judge also observed that the impact of the appellant’s conduct on Ms. Hansen and her “lawful use and enjoyment of her property cannot be overstated.” According to the trial judge, the appellant’s “open defiance of the law” and her inability to limit her “advocacy” made “individual deterrence paramount” in this case. The trial judge also concluded that there was “nothing” in the circumstances of this case to “mitigate” the appellant’s conduct. Finally, the trial judge observed that the sentence to be imposed was required to be proportional to the seriousness of the offence and the appellant’s degree of responsibility, but that the appellant had “no intention of constraining” her behaviour in the future. Rather than “exercise legitimate dissent” or protest, the appellant was “determined to harm innocent people.” In the result, as already noted, the trial judge sentenced the appellant to a 92 day custodial sentence in addition to the 88 days she had already served in pre-trial custody, and a three year term of probation.

d. Analysis

[ 18 ] In my view, in effectively imposing a six month term of imprisonment upon the appellant, the trial judge, with respect, erred in principle and imposed a manifestly unfit sentence. More particularly, in my opinion, the trial judge erred in failing to accede to the joint submission advanced by the parties.

[ 19 ] The “time served” joint submission by the parties was a perfectly reasonable sentencing disposition in this case, and it ought to have been adopted. This proposed sentence was certainly not contrary to the public interest. Nor would the imposition of this sentence have brought the administration of justice into disrepute.

[ 20 ] Moreover, the trial judge not only failed to accord the joint submission considerable weight, he did not attempt to explain, in his Reasons for Sentence , why he had elected to reject it. He stated his conclusion that the joint submission was contrary to the public interest and would bring the administration of justice into disrepute, but he offered no explanation or justification in support of this bare conclusion.

[ 21 ] There is no question that the sentence to be imposed on the appellant for these current offences had to be more significant than the recent previous sentences that had been imposed on the appellant for similar mischief offences. The appellant had clearly not been deterred by the earlier sentences. As such, a sentence had to be imposed that would make the appellant appreciate that if she intended to continue to commit these mischief offences, as appeared to be her plan, she would receive increasingly greater custodial sentences, proportionate to the gravity of the offences, in order to properly protect the public. This necessary and important element of specific deterrence would, however, have been provided by the “time served” sentence jointly proposed by the parties.

[ 22 ] As already noted, in relation to her recent mischief offences in Toronto in 2010 and 2011 the appellant had been effectively sentenced, once pre-trial custody was taken into account, to 42 and 48 days in jail respectively. With the appellant already having served 88 days of pre-trial custody in connection with the charges in the present case, if the trial judge had acceded to the joint submission of “time served” offered by the parties, the accused would still have served a sentence of close to double the length of the longest of those earlier Toronto sentences. The Crown drew this reality to the attention of the trial judge during his submissions. Such a sentence, in my view, would have appropriately increased the severity of the sentence for the accused. Such a sentence would also have been proportional to the gravity of the offences committed by the appellant. However, in imposing a further term of imprisonment of 92 days, the trial judge effectively sentenced the appellant to close to four times the longest of those earlier sentences.

[ 23 ] This significant leap in the duration of the effective custodial sentence imposed upon the appellant was, with respect, not merited by the objective gravity of the offences committed by the appellant. The offences committed by the appellant were serious ones. She willfully interfered with the lawful operation of the Clinic and deliberately disobeyed the dictates of two court orders. But the effective sentence of six months imprisonment imposed upon the appellant was simply too long and disproportionate to the nature of the offences and the personal circumstances of the appellant. In this regard it is important to recall that the mischief by the appellant, in interfering with the lawful operation of the Clinic by “disturbing patients,” lasted less than five minutes. In short, in my view, the custodial sentence imposed by the trial judge was excessive.

[ 24 ] It is also important to recall that, as the Crown elected to proceed by way of summary conviction in this matter, the maximum custodial sentence that could have been imposed upon the appellant, according to s. 787(1) of the Code , was one of six months. By sentencing the appellant to another 92 days imprisonment after she had already served 88 days of pre-trial custody, the trial judge effectively imposed the maximum custodial sentence possible upon the appellant, assuming that the appellant was only entitled to the usual 1:1 credit for her pre-trial custody pursuant to s. 719(3) of the Code . This was simply not a case where such a sentence was appropriate. As I have said, neither the gravity of the offences nor the personal circumstances of the appellant were such as to merit the imposition of such a sentence. See: R. v. Solowan , 2008 SCC 62 () , [2008] 3 S.C.R. 309. However, at no point in his Reasons for Sentence did the trial judge express an appreciation that the sentence effectively imposed upon the appellant was equal to the maximum custodial sentence generally permitted for summary conviction offences.

[ 25 ] The trial judge also failed to take into consideration the hardship that his decision to send the appellant to jail for another three months would cause to the appellant. More specifically, the trial judge failed to account for the hardship of re-incarceration.

[ 26 ] The appellant remained in jail following her arrest on November 8, 2011. She was not immediately given judicial interim release. It was not until February 2, 2012, with the consent of the Crown, that the appellant was ordered to be released on bail on her own recognizance. During this appearance, the Crown explained that the appellant had already served some 88 days in pre-trial custody, the trial was scheduled to take place in the relatively near future, and the accused had retained counsel. Moreover, the Crown suggested that, if the accused was ultimately found guilty of the alleged offences, she would already have served her sentence in pre-trial custody. Subsequently, the Crown agreed that, at that time, the position being advanced by the Crown was, essentially, “realistically, what more could the Crown get, or ask for” than the 88 days of pre-trial custody. In any event, with the consent of the Crown, the appellant was released from custody on bail. By the conclusion of the trial of this matter, the appellant had been out of custody on judicial interim release for more than a month and a half. By rejecting the joint submission and imposing the sentence he did, the trial judge sent the appellant back to jail again for another three months.

[ 27 ] In somewhat analogous circumstances the Court of Appeal of Ontario has consistently recognized that this type of re-incarceration itself imposes an additional hardship on an accused. Indeed, the Court of Appeal has held that, in light of this additional hardship, there must be a natural reluctance to re-incarcerate an accused unless the sentence that should otherwise be imposed would be “grossly inadequate” and the “interests of justice” require such a result. See: R. v. Cheng (1991), 50 O.A.C. 374 ; R. v. Lam (2003), 2003 31332 (ON CA) , 180 C.C.C. (3d) 127 (Ont.C.A.) at para. 16 ; R. v. Nusrat (2009), 2009 ONCA 31 () , 239 C.C.C. (3d) 309 (Ont.C.A.) at para. 73 . As I have already sought to illustrate, the “time served” disposition jointly urged by the parties at trial was not “grossly inadequate” and the interests of justice did not demand the imposition of the further term of imprisonment imposed by the trial judge.

[ 28 ] Of course, many accused are granted judicial interim release after serving some period of pre-trial custody and I would not wish to be taken as suggesting that, generally speaking, any subsequent incarceration of an accused pursuant to a fit and lawful sentence would be a “hardship” for an accused. But in the circumstances of the present case, it appears that the accused was released on bail precisely because it was believed, at least by the parties, that it was not realistic to think that, if the accused was ultimately convicted, any further term of imprisonment would be sought by the Crown or imposed by the trial judge. The trial Crown, quite fairly, did not want the accused to serve a longer sentence in pre-trial custody than could realistically be expected to be imposed at the end of the trial if the accused was found guilty.

5. Conclusion

[ 29 ] Sentencing decisions by trial judges are entitled to great deference on appeal. This case presented some unusual sentencing challenges for the trial judge, and his resolution of those issues must be given considerable weight and respect. Nevertheless, in my opinion the trial judge erred in principle in a number of respects and ultimately imposed a manifestly unfit sentence which must be reduced.

[ 30 ] In the result, the appeal is allowed and the custodial sentence imposed upon the appellant by the trial judge is reduced to one of “time served” – the sentence sought by the parties at trial. The three year term of probation imposed by the trial judge stands.

[ 31 ] In light of this conclusion, I need not fully address the appellant’s other argument. It will suffice to say that, in my view, the trial judge ought not to have engaged in a predictably unproductive debate with a boisterous courtroom spectator during the sentencing hearing. Nor should the trial judge have then spontaneously cross-examined the accused on her understanding of the rule of law. Finally, a number of comments made by the trial judge during the course of the sentencing hearing in this case were ill-advised and inappropriate.

[ 32 ] An order shall issue according.

Kenneth L. Campbell J.

DATE: September 27, 2012

COURT FILE NO. : 12-AP-33
DATE : 20120927

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN - and - MARY WAGNER

REASONS FOR JUDGMENT Kenneth L. Campbell J.

Released: September 27, 2012