ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-2758AP
DATE: 20130408
BETWEEN:
Her Majesty The Queen
– and –
Valerie Patey
Appellant
Ilana Mizel, for the Crown
Shannon Pollock, for the Appellant
HEARD: March 28, 2013
reasons on appeal
Campbell J.:
[1] This is an appeal of a sentence imposed by Rawlins J. Specifically the appellant seeks to delete the imposition of a curfew in the order of probation.
Factual Background
[2] On October 12, 2012, the appellant appeared before Rawlins J. of the Ontario Court of Justice and entered a plea of guilty to five charges. Those charges were: communication for the purpose of prostitution, breach of undertaking, breach of recognizance (curfew), fail to attend court and uttering threats.
[3] On these charges the appellant was sentenced to 60 days incarceration less 26 days of presentence custody. She was placed on probation on terms including that which she seeks to delete or vary in this appeal.
Position of the Parties
[4] The appellant argues that the imposition of a curfew was punitive and not reasonable. She asserts terms should generally be linked to the offence but concedes that is not a requirement. What is required is a nexus between the offender, the protection of the community and her reintegration into the community. The appellant argues in this matter the inclusion of a curfew term does not address the protection of society or the appellant’s reintegration into the community.
[5] The Crown submits that the court did turn its mind to the protection of the public and the need to reintegrate and rehabilitate the accused. That is demonstrated in the exchange between the sentencing judge and the accused as well as the judge’s reasons. The Crown emphasizes that the curfew is not an absolute one and may be extended where appropriate by the probation officer.
Analysis
[6] The law is clear that sentences imposed by trial judges are entitled to great deference. Lamer C.J.C. in R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, set out reasons justifying the deferential approach (see: para. 91). In R. v. Wagner, [2012] O.J. No. 4527, K. Campbell J. stated at para. 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.”
[7] It is not the imposition of probation itself which the appellant criticizes. Indeed in her sentencing submissions counsel for the accused stated:
Ms. Pollock: So, I’m asking on her behalf if you would consider something around 50 minus pre-trial custody with a probation order, with the DNA order, maybe with some conditions Your Honour could craft that could try to get her the help that she seems to be asking for at this point in time.
[8] In the course of her exchange with the accused during the sentencing hearing the trial judge raised the need to assist the accused in refraining from the type of conduct that caused her to come before the court. I agree with the Crown that a review of the transcript demonstrates the court turned its mind to both the protection of the public and the appellant’s desire and need to rehabilitate and reintegrate.
[9] In R. v. Smith, [2007] O.J. No. 4839, the court stated:
I draw a parallel between a s. 810.1 recognizance and a probation order, since it is well established that a probation order is not meant to be punitive in nature, but, rather intended to be a means by which to secure the good conduct of an offender or prevent the repetition of the offence for which he is being sentenced or another criminal offence: R. v. Shoker, 2006 SCC 44, 212 C.C.C. (3d) 417, (S.C.C.).
The reasons of Rawlins J. demonstrate the purpose of this term was to assist the accused and the community. That is, it was not only for punishment.
[10] Considering all of the circumstances I conclude that the sentence imposed is consistent with the principles of sentencing enunciated in the Criminal Code, R.S.C. 1985, c. C-46, and in particular s. 718.1. In my view this sentence contained no error in principle, failed to consider relevant factors or an overemphasis of factors. The sentence imposed was not demonstratively unfit.
[11] Therefore the appeal is dismissed.
Original signed “Justice Campbell”
Scott K. Campbell
Justice
Released: April 8, 2013
COURT FILE NO.: CR-12-2758AP
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
VALERIE PATEY
REASONS ON APPEAL
Campbell J.
Released: April 8, 2013