MILTON COURT FILE NO.: 113/11
DATE: 20131227
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
LORI JAGO, for the Appellant/Crown on the Sentence Appeal
ROBERT FETTERLEY Q.C. for the Respondent/Crown on the cost appeal
Appellant on the Sentence Appeal, Respondent on the costs appeal
- and -
LORRIE GAMBLE
CHARLES SPETTIGUE, for Lorrie Gamble
Respondent on the Sentence Appeal,
Appellant on the costs appeal
REASONS FOR JUDGMENT
[On appeal from the sentence imposed by the Honourable S.D. Brown,
dated June 15, 2011]
DURNO, J.
[1] On October 8, 2008, Lorrie Gamble was driving northbound on the Queen Elizabeth Highway on the Burlington Skyway Bridge. Citizens reported that she was "all over the road," weaving between the slow and middle lanes and cutting other vehicles off. Police were notified and updated that the vehicle had exited onto Highway 403.
[2] At 7:15 p.m. Constable Haliday saw the car pass his location and got behind it as it travelled in the centre lane going 75 and 80 kilometres an hour in the posted 100 k/hr zone. Ms. Gamble went over to the right lane where both her tires crossed the white line on the right side of the highway, went back over the intermittent white line to the left of the right lane and continued to straddle the two lanes for 100 metres. She then went onto the right shoulder, continued there for 300 metres before returning to the right lane, and continued swerving within that lane.
[3] Ms. Gamble then drove northbound on Highway 6 where she was stopped by the officer. Based on the following observations the officer made of Ms. Gamble, she was arrested for impaired operation: the odour of alcohol on her breath, she was unsteady on her feet and had glossy eyes, was slightly incoherent, and had slow motor skills, slow deliberate movements. The officer made a breath sample demand and took Ms. Gamble to the detachment where she provided breath samples of 226 and 219 milligrams of alcohol in 100 millilitres of blood. Because she had a previous conviction for impaired operation in 1997, she was served with a Notice for Increased Penalty (the "Notice").
[4] Roughly 25 months later, on November 2, 2010, her second trial date, Ms. Gamble pled guilty to impaired operation. The Crown filed the Notice and her criminal record that included the 1997 conviction. Ms. Gamble objected to the admissibility of the Notice, arguing the filing was unreasonable and an abuse of process. The trial judge found the Crown's decision to file the Notice was unreasonable and imposed a $1,000 fine and a one year driving prohibition. He declined Ms. Gamble's application to order costs against the Crown.
[5] The Crown appeals against the sentence. Ms. Gamble appeals against the trial judge's refusal to order costs against the Crown. The Crown submits the trial judge made his decision in a "fit of pique" because he was angry with the Crown's decision to file the Notice. The respondent submits, as the trial judge found, the Crown was upset and filed the Notice in his own "fit of pique," because he had late notice of the plea.
[6] The Crown submits the trial judge conducted the sentencing hearing in a manner that created a reasonable apprehension of bias, prejudged the central issue in the case and denied the Crown a fair opportunity to be heard. Further, the Crown contends His Honour erred in reviewing the exercise of the Crown's discretion on a reasonableness standard and in deciding that the trial Crown's decision merited intervention. Finally, the Crown argues that the sentence was demonstrably unfit and that His Honour erred in failing to impose the minimum sentence of 30 days in jail.
[7] Ms. Gamble submits there was no reasonable apprehension of bias nor unfairness to the Crown in the sentencing hearing. The Crown's filing of the Notice was an abuse of process because it was filed for reasons unconnected to the purpose of the legislation.
[8] In addition, Ms. Gamble argues the trial judge erred in failing to award costs against the Crown, that costs should be ordered for the trial and the appeal payable personally by the trial Crown because when he filed the Notice he was not acting within the Attorney General's policies. The Crown submits the trial judge correctly concluded this was not a case for costs and that no costs should be payable against the trial Crown personally or against the Attorney General for the trial or appeal.
[9] For the following reasons, the Crown sentence appeal is allowed and Ms. Gamble sentenced to 30 days in jail; Ms. Gamble's appeal is dismissed and no costs orders are made.
[10] For ease of reference, while there are cross-appeals, throughout these reasons I will refer to the Attorney General as the "appellant" and Ms. Gamble as the "respondent."
The Guilty Plea on November 2, 2010
[11] Because the Crown is arguing that the trial judge showed a reasonable apprehension of bias against the Crown in his conduct of the sentencing hearing, from the date of the plea to the reasons for sentence, a detailed account of the appearances is required.
[12] The trial was set for two days because the respondent was going to file a Charter application. On January 11, 2010, two days before the first trial dates of January 13 and 14, 2010, the respondent successfully applied to adjourn the trial dates with s. 11(b) of the Charter waived. The new trial dates were November 2 and 5, 2010. Presumably, the two days remained because of the anticipated Charter application. No Charter application was ever filed.
[13] In a fax cover sheet from Mr. Spettigue dated November 1, 2010, to the Crown Attorney for Halton Region counsel wrote:
Dear Sir:
I anticipate that Ms. Gamble will enter a plea and that a trial will not be necessary.
[14] While dated November 1, 2010, the date and time of sending from the fax machine is October 31, 2010 at 1:40 p.m. It appears the trial Crown received the fax on November 1, 2010.
[15] On the trial date, before the respondent was arraigned, Crown counsel told the trial judge there would be a guilty plea but counsel differed on whether he could file the Notice. Crown counsel continued:
We could have argument and I think what we've decided subject to Your Honour is to put the bulk of the argument – to give you the cases and then put the bulk of the argument over to Friday when we have a second day. That'll give us some time to deal with Mr. Lehn because that really has to end.
[16] Before the arraignment, the trial judge confirmed with defence counsel that he had conducted the plea comprehension inquiry contemplated by s. 606(1) of the Criminal Code.
[17] After the arraignment, plea and factual admissions, the trial Crown, not Ms. Jago, filed the respondent's criminal record, and copies of the Notice, the Crown's Charge Screening Form (CSF), the synopsis and an e-mail a Crown Attorney sent to defence counsel on June 29, 2010.
[18] The criminal record contained the following entries: 1980 – theft under: conditional discharge; 1991 – assault: suspended sentence and 12 month's probation; 1997: impaired operation - $600 fine.
[19] The CSF is attached as appendix A to these reasons. The printed portion of the screening stated:
The following is the Crown's position after an initial review. It is subject to change if additional important facts come to light.
[20] The form said that on a guilty plea the Crown would proceed on the impaired operation count with all facts read in. An Assistant Crown Attorney had written on the CSF the following after 'Comments:'
Very high readings – 226 + 219 mgs. Prior related conviction in 1997.
Note: After trial – Crown will file notice of Increased Penalty (jail and 2 years' probation)
[21] Under the section, "The Crown's position on sentencing if a guilty plea is entered prior to a date for trial or preliminary inquiry being set," the Crown wrote $1,600 fine and 18 months driving prohibition."
[22] The CSF included the following notations:
If you wish to enter a plea today, please advise Duty Counsel or the Crown Attorney…
If a trial or preliminary inquiry is set, the above-noted position may change.
Note: It is the Crown's position that a guilty plea on or near a date set for trial or preliminary may result in little, if any, mitigation of sentence. Ultimately, sentencing is always up to the sentencing judge.
[23] The e-mail was sent by Ms. Jago, senior Crown counsel to Mr. Spettigue on June 29, 2010, after the Interlock Program came into effect in Ontario and stated:
The Crown's position, should the accused wish to plead guilty pursuant to the new interlock provisions, is a $1,600 fine, 5 months absolute prohibition followed by 9 months' probation. If I do not hear from you prior to August 31, 2010, I will assume the matter will proceed to trial.
[24] Defence counsel did not receive the email.
[25] After the documents were entered, the Crown said he understood the defence would argue he was resiling from an offer in the CSF. He suggested that it be filed and "then have the discussion."
[26] The hearing continued as follows:
THE COURT: Alright. What, what's the issue here is whether the notice goes in?
MR. SPETTIGUE: Yes, sir.
MR KHOORSHED: That's exactly right.
THE COURT: Well, doesn't the Crown screening form state that after trial the Crown will file the notice of increased penalty?
MR. SPETTIGUE: I believe it says after trial.
THE COURT: Yeah, but after trial.
MR. KHOORSHED: No, that's right.
THE COURT: Not a plea.
MR. SPETTIGUE: That's my understanding, sir.
THE COURT: So what's the issue?
MR. KHOORSHED: Well, I don't take it as limited to that. I'd like to be able to make argument on that question of what – how that screening form should be read and what it means and what … limitations that imposes on the Crown.
THE COURT: I think it imposes the limitations that it purports to impose. She has a trial and she's found guilty then … the notice goes in. If she doesn't have a trial then no notice goes in.
MR. KHOORSHED: I, I don't see it …
THE COURT: Ms. Jago's email is really an enticement … for the Interlock program. … And she says, if I don't hear from you prior to August 31st I assume the matter will proceed to trial. She didn't hear from Mr. Spettigue, obviously, or I'd be seeing that email, and so she assumes then the matter would proceed to trial. The matter hasn't proceeded to trial. … There's been a plea of guilty before me.
[27] Crown counsel argued that the CSF covered two situations, a plea before a trial date was set and the Crown's position after a trial. He submitted that a guilty plea on a trial date when dates had been set for trial was a third scenario that was not covered in the CSF. Accordingly, whether to file the Notice was within his discretion. His Honour suggested that maybe the CSF should have included that scenario and that a fair reading of it is that if you have a trial the Notice goes in and if you don't have a trial it doesn't go in. The inducement was there so that if there was no trial and court time is not utilized for the purpose of the Crown proving its case beyond a reasonable doubt. His Honour asked whether that is what happened.
[28] The Crown noted the CSF was not as limited as His Honour said and continued,
So yes, I suppose it's ambiguous. It doesn't say what happens in that event. In this case, it might be that if I'd got notice a week ago when I had time to cancel witnesses that I might have been more amenable to a lower position, something closer to the original screening position. In the case where it's the trial date – I got a letter from my friend yesterday … saying I anticipate that there will be a guilty plea, which didn't give me the opportunity to cancel witnesses and it wasn't clear enough to allow me to cancel witnesses.
[29] His Honour asked whether that wasn't a factor to be taken into account on sentencing. Noting that counsel had said he anticipated a guilty plea, His Honour continued:
Well, you didn't cancel witnesses, so … you can argue that there should be an increased penalty there, because of you know a later plea and, and the inconvenience caused and things of that nature, that's fine, but to be saying now that you're going to put in the notice of increased penalty.
[30] Mr. Khoorshed responded:
Well, this morning, Your Honour, I … don't think that I'm springing anything on anybody. I don't see it that way. … the way I look at it this was a trial date.
…There was no early guilty plea and this is an area of core prosecutorial discretion that this is something that I can factor into my choice to file the notice. And, the way I view it, is that I do have the … discretion to file that notice and I think that is an appropriate case for the filing …
THE COURT: Why?
MR. KHOORSHED: of the notice.
THE COURT: Why would it be an appropriate case for the filing of the notice?
MR. KHOORSHED: Because it's a second offence. It's got high readings. It's the day of trial. It's not an early plea.
THE COURT: So basically because you had to bring your officers here you want her to serve 14 days in jail?
MR. KHOORSHED: Well, Your Honour … my respectful submission is that … is for the Crown to determine. That's … why that section is written as it is.
[31] His Honour continued that the CSF was ambiguous at best plus the e-mail and counsel's letter was received the day before trial. It was not in time to call off witnesses, but defence counsel from time to time have difficulty contacting and obtaining instructions from their clients and having clients make decisions. Whether that was the case or not His Honour did not need to know but if counsel had arrived and said he wanted a trial he was sure counsel's letter would be before him and defence counsel would be getting a tongue lashing. But that was not the case. The trial judge continued:
He sent you a letter. Yeah, it wasn't in time, it was not in time for you to call off your witnesses, but Mr. Khoorshed, please, you .. are now saying you want this woman to go to jail when your office's position has been all along that if she pleads guilty she's not going to jail.
MR. KHOORSHED: Your Honour, this morning when Mr. Spettigue … first came here and I saw him for the first moment, before there was any cancellation of witnesses ... before I had sent anyone away I said I want to be clear, do you understand that I … will be filing the notice and that I will be seeking the increased penalty on the filing of the notice, and then my friend said to me well then we're going to have a trial, that I might have been …
MR. SPETTIGUE: Cavalier. That might have been a shock.
MR. KHOORSHED: maybe, but we're in a position to have a trial. There has been no reliance on anything … I've not surprised anybody after a plea has been entered.
THE COURT: You're in a position to have a trial as long as there's not a guilty plea in front of me. You're not in a position to have a trial if there's a guilty plea and an admission of the entire synopsis.
[32] The Crown reiterated that the issue was within the area of prosecutorial discretion and asked His Honour to hear the arguments and make a ruling. His Honour responded:
Alright, … I'd ask you Mr. Khoorshed, to think about this for a couple of days and really think what you're doing here and, and it seems to me on first blush that this is something that you may want to reconsider your prosecutorial discretion on. It may not reflect well in the future to have these types of dealings done when we all know how, how this process works and how guilty pleas sometime come in on the last minute and when, you've got a Crown screening form here signed by … Mr. Goodman, Mr. Justice Goodman, now this is after, and he underlines, after trial. I would seriously think of going down this road, Mr. Khoorshed. We'll adjourn until …. Friday and if you want to go down this road, that's fine, but I'd think long and hard about it.
[33] Defence counsel offered to give His Honour some cases and His Honour replied:
Maybe we won't need to do that … because Mr. Khoorshed may reconsider his position in light of my comments. He doesn't have to but if he does then I don't want to be going through a whole lot of … reading what might be unnecessary material.
[34] On the return date, November 5, 2010, Crown counsel told His Honour that after consulting with several senior counsel in his office and the Crown Attorney for Halton Region, he would be seeking to rely upon the Notice. Mr. Spettigue said he was going to require Mr. Khoorshed to articulate for the record the exact reasons he was filing it so there was some context in which to argue. The Crown told him he had been unable to call off the witnesses and had to prepare over the weekend. Mr. Spettigue sought an adjournment to prepare a s. 7 Charter argument because there was bad faith on the Crown's part. Mr. Spettigue said he told Crown Counsel that he was concerned that they both might become witnesses.
[35] The Crown was prepared to make arguments on that date, noting the decision was part of core prosecutorial discretion and it was inappropriate to "dig deeper." The trial judge said that the "core prosecutorial discretion was set out clearly in the [CSF], underlined after trial, the Crown would file notice of increased penalty." He had suggested the Crown reconsider relying on the Notice "in light of what appears to be … on a fair reading of the CSF, an interpretation that the accused took and based her decision on, with respect to consultation with her counsel, and the fact that a plea of guilty was entered."
[36] His Honour continued:
We can get into legal parsing of the potential contractual interpretations of the [CSF], but by doing that we miss the essence of it and that is why I asked you to reconsider the matter. Certainly, you can direct me to other portions of the CSF that say that if a preliminary inquiry or a trial date are set this position may change, but, I think an individual who reads that on a fair reading says look if I plead guilty before the trial date I don't get jail.[^1] And that together with the … email from Ms. Jago, I think only serves to reinforce that. But that is going to be part and parcel of the whole package and, I think that … both parties should be entitled to flush this out in a most thorough and appropriate way possible.
[37] The trial judge noted that it might be necessary to get other counsel on the case, that it was unfortunate the appellant was before the court trying to get matters resolved and was now "locked into a form of legal battle that she wishes no part of," but it was necessary because of decisions made. He continued, "so if Mr. Spettigue wants to file a Charter application, seek an order for costs, whatever, he thinks is appropriate, then I'm going to let him do it. So we'll adjourn this matter …"
[38] Crown counsel then asked:
Your Honour, were you going to let me respond to the question that you asked about, about why and when I wanted to show parts of the screening form?
THE COURT: well, no, I've read the parts of the screening form. If, if you want to respond on it, that's fine, but I think it's going to be duplicated down the road. … I'm not making any decision on it. We're going to have a full hearing on this in any event. So …
MR. KHOORSHED: That's fine, I expect to have a full hearing. What my concern is, is with, with my ability to be heard in this matter. I've attempted to make submissions on the last date and I wasn't able to make them, and …
THE COURT: Okay, make your full submissions then. Go ahead, make your full submissions.
MR. KHORRSHED: What – I mean, if – well I understand your point. If, if you want to put it over and have a full hearing …
THE COURT: No, Mr. Khoorshed,
MR. KHORSHED: we can do that.
THE COURT: we have the rest of the day here, I'll listen to you all day, if you wish. Go ahead.
MR. KHOORSHED: Okay, but then at that point, are we going over for my friend to file a factum?
THE COURT: Yes.
MR. KHORSHED: Oh well, then that, obviously then I'd like to be in the same position as my friend. I'd like …
THE COURT: But you want to make submissions. You're saying that I'm not hearing you …
MR. KHOORSHED: Well, on the last …
THE COURT: in making submissions.
MR. KHOORSHED: … date, Your Honour, I attempted to say, please can you hear what I have to say as to the Crown's discretion and as to the law, and Your Honour said, well let's – we're going to put this over because you need to reconsider.
THE COURT: Mm-hmm.
MR. KHOORSHED: Do you recall that?
THE COURT: Yes.
MR. Khoorshed: I mean, and I just wanted to answer the one question that you asked me this morning …
THE COURT: All right, answer.
[39] The Crown then read the CSF section noted earlier that a guilty plea on or near a date set for trial may result in little, if any mitigation on sentence. He reiterated that the CSF covered an early guilty plea and what would happen after a trial, it did not cover what would happen when a plea was entered on the trial date. It was incumbent on defence counsel instead of sending a one line letter that he anticipated a guilty plea, to say he wanted to confirm the Crown would not file the Notice.
[40] The exchange continued:
THE COURT: Yes
MR. KHOORSHED: All right. I'm not trying to anger you, Your Honour, I'm just trying to …
THE COURT: I'm not angry …
MR. KHORSHED: … to advance.
THE COURT: … Mr. Khoorshed. I'm allowing you to make submissions. Finished?
MR. KHOORSHED: Fair enough, thank you I'll stop.
THE COURT: Thank you. Okay. What – if we could suggest a date then.
[41] His Honour and counsel then discussed the continuation date with the trial judge asking counsel to determine whether witnesses were going to be called or if the case would proceed on affidavits. Before the date was set Mr. Spettigue noted that he was challenging the Crown's mala fides and that Ms. Gamble "will seek all of her potential 24 remedies …"
The Arguments on the Sentencing Hearing
[42] Mr. Spettigue argued: the Crown had resiled from the position on the CSF, the Court could review that decision on a reasonableness standard, if the decision to file the Notice was an element of the Crown's core prosecutorial function it was open to the court to conclude this was one of the rare cases where to permit the Crown to do so would be an abuse of process; and that the decision to file the Notice was made capriciously and arbitrarily by the Crown. He submitted that Ms. Gamble's reasonable expectation would be that as long as she did not have a trial, the Crown would not seek a jail sentence when the CSF and the e-mail are considered together.
[43] The Crown argued the decision was within the core prosecutorial discretion and was not reviewable on a reasonableness standard. He re-iterated his arguments noted earlier regarding the CSF and relied on his written submissions.
Reasons for Judgment
[44] His Honour found the CSF clearly set out that the Crown would seek a higher penalty after a trial, the word "after" was underlined. It was clear that reliance would have been put on that to indicate the Crown's position was that they would not seek an increased penalty if there was a plea of guilt. Ms. Gamble, through her counsel had notified the Crown, albeit on the Friday before the Monday start of the trial, that there would be a guilty plea.
[45] His Honour noted that it was 6:20 p.m. when he was giving his ruling after the staff had been in court all day. In the circumstances, he was not about to go into a detailed judgment with respect to the matter. His initial reaction was that the filing of the Notice did not appear to follow the Ministry guidelines for their filing but instead smacked more of a "fit of pique" by the Crown at having late notice that there would be a guilty plea. His Honour acknowledged that at the time the decision to file the Notice was made, there was authority from Alberta that gave the Crown the authority to proceed as he did.
[46] Subsequently, the decision of R. v. Gill 2011 ONSC 1145, [2011] O.J. No. 2411 (S.C.J.) had been released and was binding on the trial judge. He agreed with the reasonableness standard of review and that the decision to file the Notice was not a core prosecutorial function. As such, it was reviewable on a reasonableness standard by His Honour.
[47] The Reasons concluded:
The long and the short is that, in my view, I believe that although some of the circumstances that present themselves in the Attorney General's memorandum with respect to filing of notices were present in this case, being the high readings and the bad driving, I think when one looks at all the circumstances, the length of the dated record, all the other factors favouring Ms. Gamble, the fact merely that her counsel chose to notify the Crown of the plea the day before the trial date is not, I find that that was the moving motivation for the filing of the Notice, and that the decision to file the Notice was not reasonable in the circumstances. Accordingly, I am going to disregard the Notice of Increased Penalty and sentence Ms. Gamble accordingly.
I do take into account that there were some two days of trial lost as a result of the late entry of the plea, but that is something that I think can go to the sentencing matter proper and not something that should be particularly utilized in the assessment as to whether to file the Notice or not. I think it became an overriding consideration, and, accordingly, the decision was not reasonable in all the circumstances.
[48] His Honour noted the prior conviction, albeit it was eleven years prior to the incident, that the driving was "not good," the high readings, that Ms. Gamble was somewhat a victim of legal gymnastics, and that she was unwillingly dragged through increased legal costs for the determination on the issue, which he hoped would not have been necessary on the day the plea was entered. In all those circumstances, His Honour imposed the minimum fine of $1000., a one year driving prohibition and did not disentitle her from entry into the Alcohol Interlock Program after six months.
[49] With respect to costs, His Honour said:
I will say that while I find this matter was close to the line, I'm not prepared at this point to order costs against the Crown. Certainly, a repetition of this type of behaviour I think would be a clear indication of the requirement to award costs, and I would have little hesitation in doing so, but the fact that Mr. Khoorshed did have some legal authority on his side I think lets him avoid the order of costs being awarded against him.
The Grounds of Appeal
Did the trial judge's conduct during the sentencing proceeding result in a reasonable apprehension of bias?
[50] In its factum, the Crown alleged the trial judge showed a reasonable apprehension of bias based on six incidents during the hearing. Ms. Gamble disputes the accuracy of some of the incidents relied upon and submits the Crown has failed to meet the high threshold for a finding there was a reasonable apprehension of bias.
The Law
[51] In R. v. R.D.S. 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 the Supreme Court of Canada addressed the test for bias as follows:
11 … The test for finding a reasonable apprehension of bias has challenged courts in the past. It is interchangeably expressed as a "real danger of bias," a "real likelihood of bias," a "reasonable suspicion of bias" and in several other ways. An attempt at a new definition will not change the test. Lord Denning M.R. captured the essence of the inquiry in his judgment in Metropolitan Properties Co. v. Lannon, [1969] 1 Q.B. 577 (C.A.), at p. 599:
[I]n considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand: [citations omitted] Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough: [citations omitted] There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: "The judge was biased."
And further,
This test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. [citations omitted] Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including "the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold": [citations omitted]
Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19-20. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegation. Yet, this is a serious step that should not be undertaken lightly.
Courts have rightly recognized that there is a presumption that judges will carry out their oath of office. This is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high. However, despite this high threshold, the presumption can be displaced with "cogent evidence" that demonstrates that something the judge has done gives rise to a reasonable apprehension of bias. [Citations omitted.]
[52] More recently the Court of Appeal has outlined the applicable test as follows in R. v. Mallory (2007), 2007 ONCA 46, 217 C.C.C. (3d) 266:
318 The test for assessing a reasonable apprehension of bias claim is whether an informed person, viewing the manner realistically and practically and having thought the matter through, would think that the decision-maker would not decide the matter fairly. … (citations omitted)
319 The concept of judicial impartiality requires that the trial judge approach the case with an open mind, meaning that he or she is open to persuasion. As the Supreme Court of Canada said in R. v. S.(R.D.), supra, at para. 35, adopting the words of the Canadian Judicial Council in Commentaries on Judicial Conduct (Cowansville, QC: Editions Yvon Blais, 1991) at 12, "True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind."
Analysis
[53] I am not persuaded the Crown has met the high threshold for a finding or real or perceived bias. The Crown has not displaced the presumption that judges will carry out their oath of office. I reach those conclusions for the following reasons.
[54] Trial judges are entitled to reach tentative opinions on the merits of an application. For example, in R. v. Parker [1998] O.J. No. 469 the Court of Appeal, while finding that the trial judge had gone too far in his comments, held that it was not inappropriate for a trial judge at the end of the Crown's case to canvas with defence counsel the defence the accused intends to present and to express his, or her, tentative views concerning the viability of the defence. What is critical is that the trial judge remains open to be persuaded that his or her tentative opinion was wrong.
[55] Here, what the reasonable observer would have concluded was that the Crown had an up-hill battle ahead – that His Honour had formed a tentative position as to the propriety of filing the Notice. Upon first seeing the CSF, His Honour formed an initial opinion and raised it with the Crown. Judges are not required to remain mute when counsel wishes to advance arguments or positions that at first blush appear to have little merit to the trial judge. R. v. Kutynec (1992), 1992 CanLII 7751 (ON CA), 7 O.R. (3d) 277 (C.A.); R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.) Indeed, it is often helpful to have counsel re-consider an issue and/or to raise concerns about where an argument might take counsel.
[56] What is also apparent is that interspersed with his cautionary comments the trial judge made the following statements: "… we'll adjourn until Friday and if you want to go down that road, that's fine, but I would think long and hard about it ..," "Mr. Khoorshed may reconsider his position in light of my comments. He doesn't have to …" and "I'm not making any decision on it." These comments reflect the trial judge's willingness to hear further argument and decide the case after full submissions. He remained open to be persuaded the Crown could rely on the Notice.
[57] Turning next to the six areas identified by the Crown in support of their contention there was a reasonable apprehension of bias. First, the Crown submits:
On November 2, 2010, when the Crown advised the trial judge before the plea of his intention to file the Notice and the defence opposition, the trial judge, without having heard submissions by the Crown, immediately took the position that the screening form bound the Crown not to file the Notice until after a trial happened;
[58] The submission is inaccurate. The trial judge made no comments about the CSF until after the plea and finding of guilt. After the various exhibits were filed His Honour asked for clarification on what the issue was. Both counsel said it was "whether the Notice went in." The trial judge then asked, "Well, doesn't the Crown screening form state that after trial, the Crown will file notice of increased penalty?" Mr. Khoorshed said he did not take as limited a view as defence counsel, and that he wanted to make submissions. When His Honour said, "I think it imposes the limitations that it purports to impose …" and noted Ms. Jago's e-mail, the Crown argued the CSF left a vacuum for the middle ground, when a plea was entered after a trial date was set. What followed was an exchange between the trial judge and Crown Counsel about the meaning of the CSF, including that Mr. Khoorshed supposed it was ambiguous and that the decision was part of his core prosecutorial discretion. Later, His Honour said he was "just trying to understand it."
[59] The Crown's assertion that His Honour immediately took the position the CSF bound the Crown without hearing from the Crown misapprehends what occurred and cannot support a finding there was a reasonable apprehension of bias.
[60] Second, the Crown asserts:
… the Crown asked repeatedly for an opportunity to be heard, but was instead constantly interrupted and, in effect, cross-examined by the Court and warned that there would be consequences if the Crown maintained its position. At no point prior to this warning, nor on this date, was the Crown ever granted the requested opportunity to make submissions.
[61] The transcript does not support the contention His Honour repeatedly interrupted the Crown. Often when exchanges occur between counsel and the judge, one or the other speaks before the other is finished. There is one instance where at the end of the Crown's comments the reporter has indicated … and a comment or question from the Court (p. 13, l.4) That would appear to be one instance where the trial judge interrupted counsel. However, if three dots at the end of a comment followed by another person speaking indicates the second person was interrupting, at one point in the transcript it appears Crown counsel interrupted the trial judge. (November 2, 2010, at p. 11, l. 5) If it is the Crown's submission that "you had to be there," that would have to be supported by an affidavit of the trial Crown, not putting evidence in a factum.
[62] As for being cross-examined, judges ask questions of counsel. Indeed, they are entitled to do so. At times they are in the form of examination-in-chief, at other times in the form of cross-examination. Judges are permitted to challenge counsel on their positions. Having read the transcript several times, I am unable to see anything in the judge's questions that was improper. Any counsel familiar with courtroom litigation knows they must be prepared on occasion to "weather the storm" of judicial questioning.
[63] On November 5, defence counsel asked for the case to be adjourned for full argument and drifted into some submissions. Crown counsel was responding when defence counsel interjected that they were getting into argument despite the fact he already outlined his general position and why he wanted an adjournment. His Honour essentially said that the case was going over for full argument and that both counsel might be witnesses. To avoid duplication, he would hear the Crown's argument on the return date.
[64] For some reason that is not readily apparent, Crown counsel then asked if the judge was going to give an opportunity to answer the question he had asked earlier about the CSF, despite the fact His Honour had just said the case was being adjourned for full argument. His Honour's comment about the Crown showing him other parts of the CSF was not an invitation to address the issue on that date although it appears Crown counsel thought it was. The Crown then submitted he expected to have a "full hearing." When given his opportunity to make submissions, Crown Counsel included the unusual comment that he was not wishing to anger the judge. It is not clear on this record why the comment was made. If it was judge baiting, it was most inappropriate. Given the context in which the exchange occurred, there is no merit to this branch of the bias allegation.
[65] Finally in this area, the Crown says the trial judge warned that there would be consequences if this Notice went in. Without endorsing all of the trial judge's views in this area, it appears His Honour was correctly pointing out that last minute guilty pleas are a fact of criminal litigation. All the trial judge was saying was that if the Notice went in, it might lead to other accused persons having a trial when the Notice was going in whether he or she pled on the day of trial or had a trial. It was an observation of the possible consequences if anyone who wanted to plead on the trial date had the Notice filed. The judge gave a cautionary note in relation to future trial date guilty pleas. It was not a threat.
[66] Third, the Crown contends:
… on November, 5, 2010, when the court asked a question of the Crown, it again interrupted the Crown's response. The Crown directly raised its concern about its right to be heard, the court reacted in anger.
[67] There are several insurmountable hurdles for the Crown in this area. First, there is no evidence the trial judge reacted in anger. In the midst of his submissions, the trial Crown said that he was not trying to anger His Honour. The trial judge said he was not angry. What is the evidentiary record upon which an appellate court could proceed on the basis the trial judge "reacted in anger?" No finding of fact was made to support the Crown's assertion, indeed it was denied. In order to proceed on the basis of the Crown's factum, I would have to make a finding of fact contrary to His Honour's denial. Again, if trial counsel wants to give evidence, it must be in affidavit form or from the witness box, not in a factum.
[68] Fourth, the Crown submits:
… the court, on its own, raised the issue of a cost order against the Crown.
[69] The trial judge was explaining why he agreed with defence counsel that the case should be adjourned for materials to be filed and full argument. While the comment was probably best left unsaid, it does not create in itself, nor does it contribute to a reasonable apprehension of bias. I also note that the trial judge did not award costs. Finally, in this area, I am ignoring the respondent's "evidence" in her factum regarding the experience of counsel and what he would have done. Yet again, there are two ways to give evidence that do not include presenting evidence in a factum.
[70] Fifth, the Crown submits:
… on February 28, 2011, the court asked the Crown about costs, an issue to which the Crown had not responded in submissions. His Honour noted that if he saw that it was not fit and appropriate to attempt to file the Notice, and that the decision was made based on extraneous and almost petty concerns, then was the Crown saying that His Honour was precluded from awarding costs;
[71] There were two ways to proceed with the arguments: first, hear the Crown on the Notice, the respondent on the Notice and costs, and then let the Crown respond to the costs issue and address any new areas raised by the respondent in relation to the Notice; or second, hear the Crown on all issues and then the respondent. His Honour chose the latter. I see nothing sinister in proceeding in that manner. Indeed, had His Honour exercised his discretion not to permit the Crown to respond, with the Crown not addressing the issue of costs, it would have precluded the Crown from addressing the issue.
[72] The second branch of this argument is that the trial judge showed bias by asking the Crown if he concluded it was inappropriate for him to attempt to file the Notice and that the decision was based on extraneous and almost petty concerns, was the Crown saying he was precluded from awarding costs? I see nothing wrong with the question, nor does it show bias. The question amounted to, "If I accept all of the offender's arguments in relation to the Notice issue are you saying I am still precluded from awarding costs?"
[73] Sixth, the Crown submits:
… after submissions a date was set for the decision. A week before that date, the court advised counsel that he would prefer to await Hill J.'s decision in R. v. Singh; R. v. Mohla before giving his ruling. Both counsel agreed to await the decision. However, when His Honour became aware of the SCA judgment in R. v. Gill he proceeded without waiting for Hill J.'s judgment.
[70] There was no indication when Hill J.'s decision was going to be released. To be clear, His Honour did not arbitrarily announce he was going to proceed without waiting for Hill J.'s judgment. On June 2, 2011, His Honour had his secretary e-mail counsel advising of the Gill judgment and continued, "Based on this case, he wondered if you would be proceeding with submissions with respect to Ms. Gamble's matter on June 14, 2011 (it is currently marked to be spoken to) or if there is, indeed, a further appeal under way that Justice Hill was hearing that you are still awaiting." The Crown responded that he wished to await Hill J.'s judgment that was expected in "the near future" according to the Crown who had argued that case. Mr. Spettigue e-mailed that he was not available on the 14th but could be there on the 15th or 17th. He took no position on waiting for Hill J.'s ruling, simply saying he wanted the secretary to let him know His Honour's preference.
[71] I agree with Mr. Spettigue that all that would have been accomplished by waiting for Hill J.'s decision was that there would either be two cases in support of Ms. Gamble's position or conflicting decisions from which the trial judge could choose.[^2] Given the Criminal Code directs that sentences be imposed as soon as practicable after the offender has been found guilty. s. 720(1), that His Honour felt the sentencing should proceed could not be seen as indicative of a reasonable apprehension of bias. The submission that His Honour, in effect, found a judgment that supported the defence and wanted to rely on it before the judgment upon which the sentencing had been adjourned is improper and not supported by the evidence.
[74] On reading the entire record, I am not persuaded that a reasonable person would have concluded the trial judge had prejudged the case. While His Honour expressed a tentative view and challenged the Crown's arguments, I am not persuaded the appellant has provided the required cogent evidence to overcome the presumption of neutrality. The appellant's argument amounts to the trial judge determined the Notice was not going to be relied upon and then went through a charade hearing using valuable court time to do so. I am not persuaded that is so.
[75] This ground of appeal fails.
Was the sentencing hearing unfair to the Crown?
[76] While framed as a stand-alone ground of appeal in the Crown's factum, for the same reasons as noted above, this ground is without merit. Judges are entitled to question counsel during submissions. They are not required to sit silently and not challenge counsel. That is what His Honour did.
Did the trial judge err in finding the decision whether to file the Notice was not within the prosecutor's core function and that he could review the decision on a reasonableness basis?
[77] After the trial judge's decision and the facta were filed on this appeal, the Court of Appeal released the ruling on the Crown appeal from Kiteley J.'s judgment in R. v. Gill (2012), 2012 ONSC 5397, 112 O.R. (3d) 462. The Court agreed that the decision whether to file the Notice was not part of the core prosecutorial discretion but found the discretion could not be reviewed on a reasonableness standard. Accordingly, the trial judge conducted the review applying the wrong standard.
[78] While the respondent here had also argued the Notice should not be relied upon because the Crown's decision to file the Notice was an abuse of process, the trial judge, having found the decision was unreasonable, did not address whether there was an abuse of process. Accordingly, it falls to this Court to review the decision applying the correct test. Before doing so, a review of the Court of Appeal decision will provide the context in which the decision is made.
R. v. Gill
[79] Doherty J.A. concluded that the distinction between core prosecutorial decisions and other exercises of prosecutorial discretion are now entrenched in our jurisprudence. at para. 51 Those that lie at the core of prosecutorial discretion involve the ultimate decision whether a prosecution should be brought, continued or ceased and what the prosecution ought to be for. It involves the nature and extent of the prosecution and the Attorney General's participation in it. at para. 52
[80] Those decisions that are not at the core are said to involve "tactics or conduct before the court." at para. 53 The distinction lies in the nature of the decision being made. If it is one that is fundamental to the nature, commencement or continuation of the prosecution, it is part of the core while those that are made in the course of an ongoing proceeding and address the kind of tactical issues that routinely arise in litigation, they are not. at par. 54
[81] The prosecutor's decision what evidence to adduce in support of the Crown's sentencing position was a non-core determination. The decision to file the Notice is qualitatively no different than a decision to prove other aggravating factors on sentence. at para. 56
[82] The principles of fundamental justice do not require the review of the exercise of Crown discretion be based on a reasonableness standard. at para. 78 – 80. Too easily, reasonableness reviews can slide into the substitution of a judge's opinion for that of the prosecutor's. at para. 81
[83] Core discretion issues are only reviewable for abuse of process. Prosecutorial independence, itself a principle of fundamental justice, forecloses review for anything other than an abuse of process. at para. 57
[84] Because the decision whether to file the Notice is not a core discretion issue, a review is not limited to abuse of process. at para. 58 The appropriate standard of review for non-core issues under s. 7 of the Charter requires a consideration of the applicable principles of fundamental justice. They will depend on the context. A prosecutor's decision to prove the Notice will run contrary to the following principles and violate s. 7 if it:
i. undermines the integrity of the administration of justice;
ii. operates in a manner that renders the sentencing proceedings fundamentally unfair;
iii. is arbitrary; or
iv. results in a limit on the accused's liberty that is grossly disproportionate to the state interest in proving the Notice. at para. 58-9
[85] If it is shown that filing a Notice was an abuse of process, it is contrary to the principles of fundamental justice. at para. 60 An abuse would occur if the decision either undermines the integrity of the criminal justice system in a broad sense or fundamentally impairs the fairness of the specific proceedings. In the second, the inquiry is whether the decision impacts on the right to a fair trial. While fairness is generally assured through compliance with applicable procedural and evidentiary rules, s. 7 remains available if the proceeding is rendered fundamentally unfair to an accused. at para. 62 Trial fairness does not mean the prosecutor must make decisions the court considers reasonable. Neither is it concerned with the trial judge's notions of the suitability of a minimum penalty that may arise. Without a challenge to the minimum penalties, exposure to those penalties is not unfair in any relevant constitutional sense. at para. 63
[86] Arbitrariness also applies to the exercise of prosecutorial discretion. An arbitrary decision is one that bears no relationship to the objective of the relevant legislation. at para. 64 The objective of the s. 255 sentencing regime speak to Parliament's resolve to reflect the community's denunciation of conduct that is both inherently dangerous and one of Canada's most pressing social problems. It reflects Parliament's determination to deter the repetition of that conduct by the promise of certain incarceration. at para. 65 Serving the Notice bears a direct relationship to the achievement of Parliament's objectives. Arguably, it is when the Notice is not filed that the prosecutor's discretion conflicts with the legislative objective. at para. 66
[87] The Attorney General's policy is also relevant to the arbitrariness inquiry because a Crown's decision that bears no relationship to the objectives underlying the policy would be arbitrary and contrary to the principles of fundamental justice. That policy calls for the exercise of discretion based on the aggravating and mitigating factors in the case. There is a clear distinction in the policy between offences within and outside five years from the date of the previous conviction. at para. 67 The arbitrariness review does not contemplate a review on any standard of the merits of the decision. A decision to prove the Notice that is based on a recognition of the discretion, and an assessment of the aggravating and mitigating factors is consistent with the objectives of the Attorney General, regardless of how it is exercised. at para. 68
[88] It is not for the prosecutor to prove that she or he did not act arbitrarily. It is incumbent on the accused person to establish a breach of s. 7 by demonstrating arbitrariness in that the decision bore no relationship to the objectives of the policy. at para. 70 There is no free-standing principle of fundamental justice requiring that the Crown justify the exercise of its discretion to a trial court. The independence of the Crown and the very distinct roles assigned to judges and prosecutors combine to dictate that judges should not oversee decisions made in the exercise of prosecutorial discretion except to the extent that they impact on the integrity of the process or the fairness of the trial. Asking prosecutors to justify their decisions implies judges have some sort of supervisory role over the conduct of prosecutions. They do not. To open such decisions to reasonableness reviews would also prolong proceedings. at para. 75
[89] That was not meant to imply that prosecutors may never be required to explain their decision to file a Notice. If the accused, with the burden of proof, leads evidence of a s. 7 violation, the Crown must respond to that evidence. It may be necessary to offer an explanation for its decision or face an adverse finding based on the evidence offered by the accused. at para. 76 Indeed, prosecutors are not to be discouraged from offering explanations where the decision is not self-evident. While the explanation enhances the transparency of the decision making process and the fairness of the proceedings, an explanation is not constitutionally mandated. at para. 77
[90] Ms. Jago argued that there was no basis upon which the trial judge should have asked the Crown why the Notice was being filed. For reasons that I will explain, I agree. However, I am not persuaded I can proceed on the appeal ignoring the reasons given by the trial Crown. The trial Crown when pressed by the trial judge on November 2 as to why he was seeking to rely on the Notice said it was because of the previous conviction and the high readings and it was the day of trial, not an early guilty plea. His Honour replied, "So basically, because you had to bring your officers here you want her to serve 14 days in jail?" The trial Crown never adopted that conclusion, nor is it borne out by the record.
[91] A number of reasons emerged throughout the hearing for the Crown's decision to file the Notice. The Crown provided those noted above. In submissions, on November 5 when noting that the Crown was not prepared to give his reasons because he believed the decision was one within his core prosecutorial discretion, Mr. Spettigue said that he had "notes, such as they may be, of what was. I know that Mr. Khoorshed referred to the fact that he wasn't able to … call off witnesses and he also told me that he'd prepared over the weekend." The trial Crown never disputed that he made the last comment. While it is far from clear the weekend preparation was advanced as a reason for filing the Notice, I will proceed as though it was. In his submissions on February 28, 2012, Mr. Spettigue noted, "There is driving conduct that may be deemed to concern people."
[92] Accordingly, I will proceed on the basis that following reasons were mentioned in and out of court for the decision to file the Notice:
i. the previous conviction;
ii. the manner of driving;
iii. the high Intoxilyzer readings;
iv. the Crown had insufficient notice of the "anticipated" guilty plea to call off the witnesses[^3]; and
v. the Crown had to prepare on the weekend.
[93] Assessing whether there was a s. 7 violation or an abuse of process involves an examination of those explanations as well as the applicable Attorney General's Policy and the CSF. The respondent, with the onus on the application, contends the trial Crown's decision was arbitrary because it was not related to the objectives of the legislation and not based on the factors in the Attorney Generals' policy. In addition, Ms. Gamble submits the Crown breached its sentencing position in the CSF and attempted to intimidate the trial judge when the Crown Attorney for the Region of Halton sat in the courtroom during the sentencing submissions. I will look at each submission before returning to the applicable tests.
[94] The appellant contends the decision was not arbitrary, did not offend any principle of fundamental justice and that the trial Crown did nothing to infringe of trial fairness.
Was the decision to file the Notice arbitrary?
The Attorney General's Guidelines
[95] The Attorney General provided prosecutors with guidelines regarding aggravating factors in impaired driving charges. A memo from John Ayre, the Assistant Deputy Attorney General, dated May 14, 2010 titled Interim Policy Advice – Reduced Suspension with Ignition Interlock Conduct Review Program was filed at the sentencing hearing. It outlines the Interlock Program that came into effect on August 3, 2010, the transitional policies, and provided "interim policy advice on the exercise of Crown's discretion in relation to certain features of this program and in relation to adjournment requests, pending program implementation." The memorandum addressed the Criminal Code amendment that made the Interlock program automatically available in most cases, eliminating the previous requirement that there be an order from the sentencing judge permitting admission to the program. Where the Crown believed the offender should not be admitted to the program or should be admitted at a later date than the legislation provided (3 months), the Crown had to apply to the sentencing judge for an order to that effect.
[96] The memorandum also addressed Criminal Code Impaired Driving Convictions more than 10 years old noting the Ministry of Transportation would be using a ten year "retrospective window" for determining whether an offender had a previous conviction for the purposes of Interlock eligibility. In deciding whether to seek an order for delayed or no admission to the Interlock Program, Crowns were advised to consider the existence of any aggravating factors noted in PM (Policy Manual) No. 4 – Impaired driving and other Road Safety Offences that was appended to the memorandum. (See Appendix B to these Reasons – Aggravating Circumstances in Impaired Driving and other Road safety Offences) Crowns were reminded that an early plea of guilty may be considered as a particularly mitigating factor that positively affects the administration of justice by reducing demands made on court resources.
[97] In the Policy Manual, prosecutors are directed as follows:
In cases involving impaired driving and other road safety offences, there are certain factual matters that, if present, may constitute aggravating circumstances. Before making significant decisions in these cases, Crown counsel should take such circumstances into account.
[98] "Significant decisions" is defined as follows:
- Significant decisions include the assessment of reasonable prospect of conviction and public interest, decisions regarding appropriate charges, bail, mode of election, resolution discussions, withdrawal of charges, sentencing and decisions about post-conviction sanctions.
[99] In examining the policies it is important to keep in mind two qualifiers. First, the list is not exhaustive. The aggravating factors "include" those listed. There is nothing in the policy that restricts prosecutors from taking into account other circumstances provided the factor is related to the objectives of the legislation and the policy.
[100] Second, as Doherty J.A. noted in Gill, the policy calls for the exercise of discretion considering the aggravating and mitigating factors in the case. There is no direction that if one or more aggravating factors are present, the Notice must be filed. Nor is there a direction that before a Notice is filed there must be one, two or any specified number of aggravating factors present.
[101] The following three aggravating circumstances apply here:
i) Whether the accused has a record for similar offences and/or fail to comply offences, and the seriousness, circumstances, number and proximity of prior related offences;
ii) The presence of driving conduct that poses a high risk to other motorists, pedestrians and/or police; e.g. excessive speed, racing and flight from police; and
iii) Whether the offence involves a very high level of blood alcohol concentration, which may indicate a serious alcohol problem (s. 255.1 of the Criminal Code deems a reading over 160 milligrams to be an aggravating factor on sentence).
[102] The respondent had a 1997 conviction for impaired operation with a relatively high fine imposed. There were eleven years between the first conviction and the date of the driving in this case. Her driving in this incident posed a high risk to other motorists and herself. Justice Doherty's comments in R. v. Ramage 2010 ONCA 488 apply to the driving pattern in this case – the danger the respondent created by her conduct driving on major highways was not unlike that created by a drunken woman who walks down the street firing a handgun at random. Finally, the respondent's blood alcohol level was 219 milligrams of alcohol in 100 millilitres of blood, a statutory aggravating factor. s.255.1 of the Criminal Code. When coupled with the previous conviction the reading may be indicative of a serious alcohol problem. Those three considerations are clearly linked to the objectives of the legislation as noted in Gill and were consistent with the guidelines.
The Timing of the Guilty Plea
[103] The fourth and fifth factors relate to the timing of the guilty plea. From the trial Crown's comments on November 2 and 5, it is clear that the late notice of the guilty plea was a factor that he considered. What the trial Crown said on November 2 was that if he had notice a week ago he "might have been amenable to a lower position, something closer to the original screening position." (emphasis added) He did not say he would have adopted the initial position. However, since it appears that the late notice of the anticipated plea and the late plea were likely the additional factors that tipped the scales in favour of relying on the Notice, on this record I will proceed on the basis that they tipped the scales.
[104] I turn next to a consideration of whether the timing of the plea factor resulted in or contributed to an arbitrary decision.
[105] The starting point is that a guilty plea and particularly one entered early in the proceedings is entitled to a substantial credit in the sentencing process. R. v. Mann 2010 ONCA 342 at para. 21. The earlier the plea, the greater the indication of remorse, the saving of expense and inconvenience, hence the impact in mitigation. R. v. Rosenberg [1993] O.J. No. 3260 (Gen.Div.) at para. 19. The effect of a guilty plea will vary with the circumstances of each case. In some, the plea is a demonstration of remorse, in others it is simply a recognition of the inevitable. However, even where a plea is not a manifestation of genuine remorse, it may still save valuable judicial resources and provide finality to the proceedings. R. v. Faulds (1994), 1994 CanLII 770 (ON CA), 20 O.R. (3d) 13 (C.A.) at para. 14. It is in this context that the fourth and fifth grounds must be assessed.
[106] The fourth reason was that the fax from counsel advising of an "anticipated" guilty plea precluded Crown Counsel from calling off the witnesses. It was not a commitment to plead guilty. Rather, it was counsel's expectation. Accordingly, the trial Crown acted appropriately in not calling off the witnesses.
[107] The timing of a guilty plea is not an enumerated item. However, that the timing of the plea was not a listed aggravated factor in the memorandum did not prevent the Crown from considering it when determining whether to rely on the Notice. The policy provides a non-exhaustive list of aggravating factors. It does not say that Crowns are only permitted to consider the aggravating considerations listed in the policy. The decision to file the Notice is no different than other decisions Crowns make with regards to what evidence to adduce in support of the Crown's position. Gill at para. 56
[108] Appellate courts have repeatedly noted the significance of the timing of a plea and its impact on the administration of justice. Court trial time is a precious commodity. Appropriate early guilty pleas are to be encouraged. Last minute guilty pleas can result in courts sitting idle. On other occasions, the court time is used. Here, four days of court time had been set aside for a trial that never proceeded. Setting aside trial time for a two day case because of a Charter application that never appeared was a factor to consider. I am unable to see how a valid consideration in sentencing in all cases would be excluded from consideration because the Attorney General's guidelines did not include that reason as an aggravating factor.
[109] Indeed, another area where the respondent's submission falters is that the policy does address the timing of the guilty as being a factor for consideration in the Assistant Deputy Attorney General's memo. To say the late plea was an irrelevant consideration is to ignore the policy.
[110] To be clear, a late guilty plea is never an aggravating factor in sentencing. A guilty plea is always a relevant mitigating fact on sentence. However, a late guilty plea generally, and in this case in particular, has less mitigation. In the result, there are consequences for those who decide to plead guilty on the trial date – less mitigation on sentencing.
[111] At times, a late plea does not attract significantly less or any less mitigation than an early plea. For example, when the Crown agrees to accept a plea to a lesser offence that had been offered from early in the proceedings or if there has been some reason counsel could not obtain instructions. Here, there is nothing upon which it could be concluded defence counsel had any problems getting instructions from the respondent.
[112] To the extent that Crown Counsel was required to take into consideration the aggravating and mitigating factors, he was entitled to consider the timing of the guilty plea. I am not persuaded his consideration of the witnesses not being called off was inappropriate. It was a relevant consideration.
[113] When there are aggravating factors present that could justify relying on the Notice, that the final consideration that tipped the scales was not on the list does not make the exercise of discretion arbitrary or unreasonable when what was relied upon was first, a standard consideration on sentencing and second, a factor addressed in the Assistant Deputy Attorney General's policy memo.
[114] The final area for consideration is the Crown's comment to defence counsel that one of his reasons was that he had to prepare the case on the weekend. In ruling the Crown's decision to file the Notice was unreasonable, the trial judge did not identify this comment as contributing to the unreasonableness of the decision noting instead that the late notice of the guilty plea was the motivating factor.
[115] While at first blush the comment appeared problematic, on further reflection, I am not persuaded it can be divorced from the above noted timing issue. It was one of the results of the late notice of the anticipated guilty plea and the late plea. The trial judge did not find the fact the trial Crown had to prepare was the motivating factor. While it would be inappropriate to rely on a Notice solely because Crown counsel had to prepare, given the manner in which both counsel dealt with the evidentiary record, that findings cannot be made on this record. It was not inappropriate to mention one of the effects of the late notice.
[116] In submissions, the respondent analogized this case to Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA), 43 O.R. (3d) 223 (C.A.) where the police stopped members of motorcycle clubs. The Court addressed where the police had multiple reasons for stopping the drivers including one already found to be valid. Doherty J.A. held;
As long as the additional police purpose is not improper and does not entail an infringement on the liberty or security of the detained person beyond that contemplated by the purpose animating s. 216(1) of the H.T.A., I see no reason for declaring that a legitimate police interest beyond highway safety concerns should taint the lawfulness of the stops and detention.
If, however, one of the purposes motivating a stop and detention is improper, then in my view the stop is unlawful even if highway safety concerns also factor into the decision to make the stop and detention.
While I can find no sound reason for invalidating an otherwise proper stop because the police used the opportunity afforded by that stop to further some other legitimate interest, I do see strong policy reasons for invalidating a stop where the police have an additional improper purpose. Highway safety concerns are important, but they should not provide the police with a means to pursue objects which are themselves an abuse of the police power or are otherwise improper.
[117] First, for the above noted reasons, I am not persuaded the Crown relied on improper considerations. Second, if I am wrong in that conclusion, in Brown persons using the highways and unlawful stops was the issue. Here, Ms. Gamble's rights were those of an accused person, those rights protected by s. 7 to 10 of the Charter. I am not persuaded that if it was improper to consider that one of the effects of the late plea was the trial Crown had to prepare the case, that her Charter protected rights were jeopardized or infringed.
[118] Considering the Attorney General's policies, it cannot be said, in the words of Doherty J.A. that the decision bears no relationship to the objectives of the legislation or the Ministry's policies. Three of the reasons are identified as aggravating factors in the policy and the timing of the plea is also included as a relevant factor. The decision cannot be said to be contrary to Parliament's objectives in enacting the sentencing provisions – to reflect society's condemnation of conduct that is inherently dangerous and one of Canada's most pressing social problems. It reflects Parliament's determination to deter the repetition of the conduct by the promise of certain incarceration. Nor can it be said to be contrary to the Attorney General's policy that directs Crown Counsel to consider the mitigating effect of an early plea.
Did the Trial Crown breach its sentencing position on the Charge Screening Form?
[119] Charge Screening Forms were introduced after the Martin Report (The Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, 1993) as a means of conveying to persons charged with a criminal offence the Crown's early position on sentence after the initial charge screening. While the form has undergone numerous changes since its inception and there may be local variations, in general, they convey to the accused and his or her counsel the Crown's preliminary assessment of the case including the viability of the charges as laid or others, the Crown election where applicable and at least the Crown's sentencing position on an early guilty plea. Often the forms provide an after trial Crown sentencing position. See R. v. Sychterz [2005] O.J. No. 2722 (S.C.J.) at para. 68-69, R. v. Vrban [2003] O.J. No. 4402 (S.C.J.) at para. 29.
[120] The information is also required where an accused applies for coverage from Legal Aid Ontario because knowing whether there is a prospect of jail at any stage informs the eligibility assessment as it addresses one of the two criteria for the issuance of a certificate: whether there is a prospect of incarceration.[^4]
[121] While few cases have examined the forms, it has been held that they provide written documentation of the Crown's position at a point in time because it is dated. In addition, nothing on the face of the form makes it a settlement or resolution offer. It does not carry the language of a legal undertaking or offer. R. v. C.L. [1998] O.J. No. 2590 (Prov. Div.), cited with approval in R. v. I.C., 2010 ONSC 32 at para. 81 in regards to the CSF being neither a settlement offer nor an undertaking and was not binding on the Crown.
[122] I agree that the form is the Crown's position at a point in time. It is dated and notes the positions are after an initial review and subject to change if additional important facts come to light. It is neither a contract nor an undertaking. It has important qualifying notations that cannot be ignored. It also has to be kept in mind that virtually all CSFs are prepared without input from defence counsel or the accused about particular mitigating circumstances that would be unknown to the screening Crown. When those are known, it is not uncommon for the Crown to take a different position on sentence on an early guilty plea. The Crown is under an obligation to continue to review its case as it progresses through the courts.
[123] With respect, I disagree with the conclusion it is not an offer at settlement on an early guilty plea provided the "initial review" criteria is kept in mind. It includes that if the accused wishes to plead guilty that day that duty counsel or the Crown should be advised. However, it is still an offer based on an initial review.
[124] While the CSF did not cover all of the potential scenarios, for the areas it addressed I do not find the form ambiguous. To conclude that there was some form of contractual obligation or an undertaking by the Crown to only file the Notice after a trial for all time or "all along" as the trial judge found, is either to misread or selectively read the CSF. To suggest that the form committed the Crown to not file the Notice on a guilty plea on a second trial date 25 months later, ignores the plain wording of the form. The Crown's position on sentencing was the Notice would not be filed and the Crown would seek a $1600 fine and an 18 month driving prohibition if the plea was entered before a trial date was set. There was no assurance that would be the Crown's position after a trial date was set. The person reading the form was also told that the Crown took the position that a guilty plea on or near a trial date may result in little, if any mitigation of sentence. Here, two trial dates were set. In addition, Ms. Gamble was not left to her own devices to interpret the form. She was represented by experienced counsel.
[125] Reading the entire form, it omits two scenarios – the guilty plea entered after a trial date was set but before the trial date and a date of trial guilty plea. Perhaps it would be helpful to specify on the CSF the positions on those scenarios after the initial review or that the Crown has not taken a sentencing position in those circumstances. However, because the word 'after' is underlined does not lead to the conclusion that the respondent could plead guilty at any time before the first witness is called unless the balance of the CSF were ignored.
[126] As regards the finding that Ms. Gamble relied on the CSF as assuring the Notice would not be filed at any time before her trial started, there was no direct evidence to support that conclusion. Ms. Gamble neither testified nor filed an affidavit. There was no agreement that was her position. Her counsel told the trial judge that the CSF was an undertaking. It was not.
[127] He continued that Ms. Gamble was:
presumed to know the law, a reasonable expectation in this case would have been that the Crown would not seek to file the notice if a plea was entered and a trial was not conducted. In my submission that view would have been reinforced by the June 29th e-mail from Ms. Jago which … decreased the potential penalty and certainly didn't contain any caveat that said – there is a reference to if you don't respond by August 31st we'll assume you want to have a trial, but there's no caveat in that e-mail that says if August 31 passes all bets are off and even if you plead guilty the Crown will file the Notice. One is left reading that e-mail presuming that the screening form and the references to filing notice after a trial would still be the Crown's position. … So, in my submission the reasonable expectation of Ms. Gamble would be that, again, no trial, no Notice."
[128] First, counsel said it would have been a reasonable expectation, not that it was Ms. Gamble's expectation. Second, it is curious how the respondent could rely on the contents of an e-mail her counsel never received as reinforcing her view that she could plead at any time and the Crown would file the Notice. Presumably, Ms. Gamble neither saw nor was aware of its contents.
[129] Notwithstanding the absence of evidence as to what the respondent believed as opposed to submissions as to what would be reasonable in a hypothetical situation, I will proceed on the basis the respondent felt the form meant something it did not. That does not mean she was correct. That she sought to rely on the CSF in opposing the introduction of the Notice was understandable after it was filed. Assuming she relied on that interpretation, it was a factor to consider but was not in itself determinative.
[130] The Court of Appeal held in R. v. Hechavarria, [1999] O.J. No. 1560 at para. 1 that there was no doubt that the system of justice and those affected by it regard charge screening forms as speaking to resolution at an early stage of the proceedings. When there was no early resolution, there was no appearance of injustice. Mr. Spettigue argued that the weight to be attached to those comments was diminished because they were made in an endorsement. Even assuming that is correct, the respondent provided no authority that contradicts those comments that I find are accurate. What would be clear to the respondent was that on an early guilty plea the Crown would not file the Notice and would ask for a $1,600 fine and an 18 month driving prohibition.
[131] Here, the CSF included that after a trial the Notice would be entered. That entry simply alerted the respondent that the fine and prohibition offer did not extend for all time. The e-mail supported the position that if important facts came to the Crown's attention the position could change. The important fact was the introduction of the Interlock system and the sentencing options that it introduced. The e-mail changed the Crown's position on a guilty plea because an important new option became available. The original 18 month prohibition became a total of 14 months with the last 9 months subject to the Interlock system. The Crown's e-mail makes it clear that absent a response from counsel by August 31, 2010, the Crown's assumption was the case would proceed to trial.
[132] I do not see how that e-mail suggested, let alone reinforced a view that a plea entered 25 months after the arrest on a second trial date would not result in the Notice being filed. After August 31, 2010, the Crown was proceeding on the basis there would be a trial and the Notice filed. An earlier or trial date plea was never referenced. It was reasonable for the Crown to conclude the respondent would file her Charter notice and would proceed to trial having set two trial dates. There is nothing in the email that would lead anyone to believe the Crown would not file the Notice on a trial date guilty plea.
[133] If I am wrong and the CSF was ambiguous, surely it was counsel's responsibility to determine the Crown's position on a guilty plea after the trial date was set.
[134] I am not persuaded the Crown was resiling from either the CSF or the e-mail in filing the Notice.
Did the Crown breach the respondent's s. 7 rights or was there an abuse of process for other reasons
The presence of the Halton Crown Attorney in court for the arguments before the trial judge
[135] The respondent has raised for the first time in her factum, that presence of the Crown Attorney for Halton in the body of the court for the argument was an attempt to intimidate the trial judge. The respondent's factum noted the following: "Arish Khoorshed also attempted a Hail Mary post offence ratification of his decision by placing [the Halton Crown Attorney] in the courtroom and representing that the Senior Crown endorsed his conduct." And later, "The presence of Senior Crown Attorney … in the courtroom on Friday, November 5, 2010, was a woefully pathetic Hail Mary effort at post offence ratification of Arish Khoorshed's illegal exercise of discretion and was a flagrant and blatant attempt to intimidate the Justice and is therefore to be deplored."
[136] While an attempt to intimidate a trial judge would be a breach of s. 7 and an abuse of process, this ground is without merit. First, this serious allegation was not even raised with the trial judge during argument. Presumably, trial counsel knew the Crown Attorney was in the courtroom when he made his submissions. Second, yet again, counsel is giving evidence in a factum that is not on the court record. What evidence supports the assertion Mr. Khoorshed "placed" the Crown Attorney in the courtroom is unknown. Third, courtrooms are open to the public, including the Crown Attorney.
Conclusions regarding the exercise of the Crown's discretion
[137] Returning to Justice Doherty's reasons in Gill, on this record I am not persuaded the Crown's decision undermined the integrity of the administration of justice, nor did the decision operate in a manner that rendered the sentencing hearing fundamentally unfair. While other prosecutors would not have relied on the Notice, that is not the test. The respondent entered her plea with her eyes open. The Crown said he was going to seek to rely on the Notice before the plea was entered and her counsel told the trial judge that he had completed the plea comprehension inquiry.
[138] Neither was the decision arbitrary for the reasons indicated. The factors taken into account were appropriate considerations. The decision was based on a recognition of the discretion and an assessment of the aggravating and mitigating factors in the case. Accordingly, it was consistent with the objectives of the Attorney General, regardless of how the discretion was exercised. Gill at para. 68 The Crown did not breach the position in the CSF.
[139] Finally, the result does not impact on the respondent's liberty in a manner that is disproportionate to the state interest in providing the Notice given the objectives of the legislation.
The Appropriate Sentence
[140] For the reasons noted the trial judge erred in not relying on the Notice in imposing sentence. In addition, the minimum fine and a prohibition that mirrored the Highway Traffic Act, mandatory suspension failed to address the serious aggravating factors or the late guilty plea.
[141] At the time of the commission of the offence, the respondent was subject to a minimum jail sentence of 30 days. That is the sentence the Crown seeks and the one that will be imposed. Since no submissions were made regarding whether the respondent would seek an intermittent sentence which I am prepared to impose, counsel may file brief written submissions regarding the manner in which the sentence should be served by January 8, 2014.
[142] As regards the driving prohibition, the Crown does not seek an additional prohibition beyond what the respondent has already served. In these circumstances, no further prohibition is required.
The Costs Issue
[143] While the awarding of costs in criminal litigation is a rare event, the scope and frequency of awards have expanded as a result of the Charter. R. v. M.(C.A.) (1996), 1996 CanLII 230 (SCC), 105 C.C.C. (3d) 327 (S.C.C.), at para. 97; R. v. Ciarniello (2006), 2006 CanLII 29633 (ON CA), 211 C.C.C. (3d) 540 (Ont.C.A.), at para. 35. While there is no statutory authority for trial judges to award costs in indictable matters (R. v. Chapman (2006), 211 C.C.C. (3d) 540 (Ont.C.A.)) s. 826 of the Criminal Code provides that when an appeal is heard and determined or abandoned or abandoned for want of prosecution, the appeal court may make any order with respects to costs that it considers just and reasonable.
[144] As regards the trial, where costs have been considered factors such as "fault," "conduct requiring censure" or a "marked and unacceptable standard departure from the reasonable standard expected of the prosecution" have been considered. Chapman. In addition, costs are not usually awarded in criminal cases to influence the conduct of litigation. The Court of Appeal has held that because "the Crown acts in the public interest when conducting criminal prosecutions, it is said its discretion should not be influenced or fettered by the threat of a cost award." Ciarniello, at para. 33.
[145] The trial judge refused to directly award costs although imposing the minimum fine had the same effect. That was based on a reasonableness review of the Crown's decision. When the post-Gill s. 7 analysis is applied, I cannot reach the conclusion there was conduct requiring censure or that there was a marked departure.
[146] In addition, I take a different view of Ms. Gamble's plight before the courts. What got Ms. Gamble dragged into a legal argument she did not want to be part of was not the Crown's decision in relation to the Notice. Rather, it was because she was driving on one of Canada's major highways in a most dangerous manner having consumed over three times the statutory limit despite having a previous conviction.
[147] Given the results of the appeal, I am not persuaded costs should be awarded against the trial Crown personally or against the Attorney General.
The Manner in which the Sentencing Hearing and Appeals Proceeded
[148] Before concluding the reasons, the manner in which the sentencing and appeal proceeded require comment. First, while on November 5 the trial judge appropriately recognized that both counsel might become witnesses and questioned whether the hearing would proceed on affidavits or viva voce evidence, counsel proceeded without an evidentiary record. In effect, both counsel gave evidence about what had been discussed on November 2 before the guilty plea was entered. That conversation was important to the determinations the trial judge had to make, yet he was given pieces of the discussion from each counsel as well as "other evidence."
[149] Where counsels have personal knowledge of "evidence" upon which an application will be determined there should either be a written agreed statement of fact that forms the complete evidentiary record, new counsel should be retained and the lawyers testify or affidavits should be filed by both counsel with cross-examinations held and new counsel argue the application.
[150] Both counsel continued to enhance the record on appeal by giving information that was not before the trial judge. For example, the trial Crown who prepared the factum included that the trial judge "reacted in anger" to his submissions. The respondent included that Crown's "gleefully chortled" when he spoke about the issues they were litigating being more interesting compared to a drinking and driving case. He also included for the first time the suggestion that the attendance in court of the Crown Attorney for Halton Region was an attempt to intimidate the trial judge and said the trial Crown resiled from the CSF position because he read the officers' notes on the weekend.
[151] As Hill J. noted in R. v. R.M. (2006), 2006 CanLII 32999 (ON SC), 83 O.R. (3d) 349 (S.C.J.) what resulted because of an inadequate record was "somewhat of an evidentiary free- for-all." His Honour referenced R. v. Leduc (2003), 2003 CanLII 52161 (ON CA), 176 C.C.C. (3d) 321, leave to appeal refused, [2003] S.C.C.A. 411 that "if an advocate wishes to give evidence about material and contested facts, the advocate must .. testify under oath." The trial counsel should have followed the directions from the Court of Appeal instead of attempting to enhance the record with their personal observations.
[152] Second, while there is no rule on the issue, in my experience when the conduct of any counsel is brought into issue, that counsel should not appear on the hearing or prepare the factum. Another counsel can bring an independent assessment in preparing the factum and not drift into enhancing the record by giving evidence.
[153] Third, factum writing allows for some leeway. There is nothing wrong, and perhaps quite a bit right about colourful language. However, the respondent's factum in addition to "giving evidence" crossed the line into inappropriate language and unfounded allegations. For example, he noted that trial Crown had "placed" the Regional Crown in the courtroom in a blatant attempt to intimidate the trial judge. Her factum repeatedly referred to the "junior" Crown Attorney when there is no evidence regarding the trial Crown's experience. I have already referred to other comments in the factum. That is not the type of advocacy expected of counsel in any court.
Conclusion
[154] The Crown appeal is allowed and Ms. Gamble is sentenced to 30 days in jail. I would be prepared to permit Ms. Gamble to serve her sentence intermittently. Counsel shall file written submissions by January 8, 2014 regarding the times for the intermittent sentence to be served failing which Ms. Gamble will surrender at the Vanier Centre for Women, 655 Martin Street, Milton, Ontatio at 8:00 p.m. on Friday, January 17, 2014 to begin serving her sentence. If Ms. Gamble has paid her fine, the funds shall be returned to her.
[155] The respondent's appeal is dismissed.
Durno J.
Released: December 27, 2013
MILTON COURT FILE NO.: 113/11
DATE: 20131227
Appendix A
Charge Screening Form
Charge Screening Form to be scanned and attached to original reasons as page 57.
MILTON COURT FILE NO.: 113/11
DATE: 20131227
Appendix B
May 14, 2010
APPENDIX A - Aggravating Circumstances in impaired Driving and other Road Safety Offences (excerpted from PM [2008] No. 4 - Impaired Driving and other Road Safety Offences)
In cases involving impaired driving and other road safety offences, there are certain factual matters that, if present, may constitute aggravating circumstances. Before making significant decisions in these cases, Crown counsel should take such circumstances into account. These include:
Whether the offence involves death, serious injuries and/or substantial property damage;
Whether there was a motor vehicle collision;
The presence of driving conduct that poses a high risk to other motorists, pedestrians and/or police; e.g. excessive speed, racing and flight from police;
Whether the offence involves breach of a court order and frustrates the administration of justice, e.g. drive while prohibited;
Whether the offence interferes with the enforcement of drinking and driving laws, e.g. fail to remain at the scene of the accident, flight from police and refuse to provide breath samples;
The presence of vulnerable people, such as children (either in a motor vehicle or on foot);
Whether the accused's provincial driving record indicates a history of unsafe driving and/or driving while suspended;
Whether the offence involves a very high level of blood alcohol concentration, which may indicate a serious alcohol problem (s. 255.1 of the Criminal Code deems a reading over 160 milligrams to be an aggravating factor on sentence);
The effect of past offences and sentences upon the accused, including whether or not he/she has participated in treatment programs for alcoholism and/or drug addiction;
Whether there is other evidence of chronic alcoholism.
- Significant decisions include the assessment of reasonable prospect of conviction and public interest, decisions regarding appropriate charges, bail, mode of election, resolution discussions, withdrawal of charges sentencing and decisions about post-conviction sanctions.
MILTON COURT FILE NO.: 113/11
DATE: 20131227
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant on the Sentence Appeal, Respondent on the costs appeal
and –
LORRIE GAMBLE
Respondent on the Sentence Appeal,
Appellant on the costs appeal
REASONS FOR JUDGMENT
[On appeal from the Honourable S.D. Brown, dated June 15, 2011]
DURNO, J.
Released: December 27, 2013
[^1]: I infer this comment was a slip of the tongue by the trial judge as it does not reflect the position he expressed elsewhere. [^2]: On January 27, 2012, Hill J. released his judgment in R. v. Mohla and R. v. Singh (2012), 2012 ONSC 30, 286 C.C.C. (3d) 204 in which he held the decision whether to file a Notice was within the core prosecutorial discretion and was only reviewable on the abuse of process standard. [^3]: While there were references in the transcript about witnesses, it is not clear whether there were one or two police witnesses only or whether the civilians who called 9-1-1 were also witnesses. [^4]: The second is financial eligibility.