SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 10/13
DATE: 2013/09/10

RE: Her Majesty the Queen (Appellant)

• and -

Michael Desrosiers (Respondent)

BEFORE: Justice A. W. Bryant

COUNSEL:
S. Venne, for the Appellant
C. Papineau, for the Respondent

HEARD: August 28, 2013

On Appeal from the Reasons for Decision of the Honourable Mr. Justice O’Dea
dated February 26, 2013

The Facts

[1] Michael Desrosiers and Ms. McKeating had a dating relationship from July 2012 to October 2012. Mr. Desrosiers hoped to renew his relationship with Ms. McKeating, but Ms. McKeating was not interested in reviving her relationship with Mr. Desrosiers.

[2] Ms. McKeating is a secretary employed by Gunn and Associates in St. Thomas, Ontario. Mr. Desrosiers attended at Ms. McKeating’s work place on November 5 and 6, 2012 to speak with Ms. McKeating. She refused to meet him in the lobby of the law firm.

[3] Mr. Gunn spoke to Mr. Desrosiers on two occasions in the lobby. Mr. Gunn requested Mr. Desrosiers to leave the premises and told him that he would call the police if he refused. Mr. Desrosiers said he would not leave the premises until he spoke to Ms. McKeating.

[4] Mr. Gunn telephoned the St. Thomas police and requested their assistance to remove Mr. Desrosiers from his law office. The first responding police officer told Mr. Desrosiers on two occasions to leave the premises, but Mr. Desrosiers stubbornly remained until he spoke with Ms. McKeating. A struggle ensued when the police officer attempted to remove Mr. Desrosiers from the office. He was placed in handcuffs after the arrival of two additional offices. He was charged with resisting arrest.

[5] Mr. Desrosiers appeared before a provincial court judge on February 26, 2013. Ms. Venne represented the Crown and duty counsel, Ms. Papineau, represented Mr. Desrosiers. Counsel informed the presiding judge that Mr. Desrosiers had been approved for a mental health diversion program and that there would be a joint submission by the Crown and duty counsel, in that Mr. Desrosiers would sign a peace bond and enter into a mental health diversion program with terms and conditions.

[6] Upon learning the conditions for the peace bond, the presiding judge questioned Mr. Desrosiers and duty counsel to obtain background information. Crown counsel informed the court of the details of the altercation and duty counsel informed the court that Mr. Desrosiers did not have a short term memory and had little impulse control. The presiding judge asked about any treatment plan and was informed that Mr. Desrosiers was under the care of a physician, was prescribed and taking medication, and was monitored by the mental health care unit at St. Joseph’s Hospital in London.

[7] The judge took control of the process notwithstanding the fact that both counsel were aware of the support system in place for Mr. Desrosiers and both were of the opinion that the peace bond and mental health diversion was in the best interests of Mr. Desrosiers. The judge told counsel:

What I intend to do is not execute a peace bond but execute what’s called a conditional discharge. It will be for a period of 12 months but what occurs is it gets monitored by probation services.

[8] He then explained to counsel what would follow from his decision:

All right. Would you stand, Michael. In the result, what I intend to do is order a conditional discharge. The discharge is in the interests of the defendant for all of the obvious reasons and the discharge is in the interests of the public in the context of maintaining a level of control that will, at its best, and I mean nothing is perfect, prevent something of a similar nature in the future. Consequently, I am going to order that a guilty plea be entered and grant the discharge for a period of 12 months from this date on terms that Michael will be bound by a probation order that will require him to keep the peace and be of good behaviour; to report to a probation officer within five working days of today’s date and as frequently after that as your probation officer deems enough; and require Michael not to associate with the complainant. …

[9] The judge dictated the terms of the probation order and directed Mr. Desrosiers and his mother to leave the courtroom and that a probation order would be prepared and given to Mr. Desrosiers to sign. The sentencing judge rejected the joint submission because he believed he had a better plan.

[10] The Ontario Court of Appeal has clearly and consistently settled the law with respect to joint submissions on sentencing. In R. v. Cerasuolo (2001), 2001 24172 (ON CA), 151 C.C.C. (3d) 445, at para. 8, the court stated:

This court has repeatedly held that trial judges should not reject joint submissions unless the joint submission is contrary to the public interest and the sentence would bring the administration of justice into disrepute: e.g. R. v. Dorsey (1999), 1999 3759 (ON CA), 123 O.A.C. 342 at 345. This is a high threshold trial, that the joint submission he obtained in return for a plea of guilty will be respected by the sentencing judge.

[11] More recently in 2007, in R. v. E. (R.W.), 2007 ONCA 461, 86 O.R. (3d) 493, at para. 22, the Ontario Court of Appeal held:

It is trite law that a sentencing judge is not bound to accept a joint submission. It is well-settled, however, that a judge should not reject a joint submission unless it is contrary to the public interest and the sentence would bring the administration of justice into disrepute[.]

[12] The sentencing judge did not find that the joint submission was contrary to the public interest or that the agreed-to sentence would bring the administration of justice into disrepute, but instead found that his alternative sentence was preferable.

[13] Leaving aside the issue of overriding the joint submissions of counsel, the sentencing judge failed to follow the mandatory provisions of the Criminal Code. Section 801(1) of the Criminal Code states as follows:

Where the defendant appears for the trial, the substance of the information laid against him shall be stated to him, and he shall be asked,

(a) whether he pleads guilty or not guilty to the information, where the proceedings are in respect of an offense that is punishable on summary conviction; or

(b) whether he has cause to show why an order should not be made against him, in proceedings where a justice is authorized by law to make an order.

[14] I find that the information was never read to Mr. Desrosiers in court and he was not asked how he wished to plead to the single count in the information as required by s. 801(1) of the Criminal Code. Mr. Desrosiers never pled to the offence.

[15] Section 606(1.1) of the Criminal Code further provides:

A court may accept a plea of guilty only if it is satisfied that the accused

(a) is making the plea voluntarily; and

(b) understands

(i) that the plea is an admission of the essential elements of the offence, [and]

(ii) the nature and consequences of the plea, …

[16] On appeal, Ms. Papineau submitted on behalf of Mr. Desrosiers that initially Justice O’Dea was well intentioned but that her client was never given an opportunity to consult with her once the sentencing judge took charge of the proceedings. Mr. Desrosiers never entered a plea and never admitted the essential elements of the offence, nor was he informed of the nature of the consequences of a plea. In my view, the court failed to comply with the mandatory provisions of the Criminal Code.

[17] Section 813(b)(ii) of the Criminal Code provides that the Crown may appeal to an appeal court against a sentence passed upon a defendant. Section 687(1)(a) allows the appeal court to consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to “receive”, vary the sentence within the limits prescribed by law for the offence for which the accused was convicted.

[18] Mr. Desrosiers does not have a criminal record. He suffers from a brain injury and had complied for six months with the terms of the probation order made by the sentencing judge. He is under the care of Dr. Gregory at St. Joseph’s Hospital and has done well and is now on a maintenance program with very little external supervision.

[19] Sections 717(1) and 717(4) of the Criminal Code provide that alternative measures may be used to deal with a person alleged to have committed an offence only if doing so is consistent with the protection of society and the prescribed statutory conditions are satisfied. I find that the mental health diversion program and the peace bond comply with s. 717 of the Criminal Code.

[20] The appeal is allowed and the finding of guilt and the order placing Mr. Desrosiers on probation pursuant to a conditional discharge are quashed. The sentence is varied by giving effect to the joint submission of counsel. Mr. Desrosiers shall enter into a six month peace bond with the agreed to conditions for a period of six months.

“Justice A.W. Bryant”

Justice A. W. Bryant

Date: September 10, 2013