ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 22/14
DATE: 20140530

RE: Her Majesty The Queen v. Joshua Tower

BEFORE: K.L. Campbell J.

COUNSEL:
Megan Petrie, for the Crown, respondent

David North, for the appellant, appellant

HEARD: May 16, 2014

REASONS FOR DECISION

[Summary Conviction Appeal]

A. Overview

[1] On Wednesday, January 8, 2014, the appellant, Joshua Tower, unrepresented and in custody, appeared before Mr. Justice Cavion of the Ontario Court of Justice. After speaking briefly with duty counsel, the appellant pled guilty to charges of: (1) assault with a weapon (a plastic bottle), committed on October 3, 2013; and (2) failing to appear in court, committed on November 5, 2013. Before the appellant entered his plea of guilty to these two charges, the Crown and duty counsel engaged in discussions that led them to agree to advance a joint submission that the appellant should be sentenced to a 60-day intermittent term of imprisonment and a term of probation. Counsel also agreed that two ancillary sentencing orders should be made, namely, a DNA order and a weapons prohibition order.

[2] Rather than sentencing the appellant immediately after hearing the submissions of counsel, the trial judge released the appellant from custody on a promise to appear, requiring him to come back to court on Friday, January 17, 2014. The trial judge took this step in order to permit the appellant to attend an upcoming three-day educational program in which he had enrolled, that may have better prepared him for the particular line of employment in which the appellant was interested.

[3] The appellant did not return to court as he had promised. On January 17, 2014, he sent word to the court that he was a “little late” and that he “might come on Monday.” The appellant did not appear Friday, nor did he appear the following Monday. He would pay dearly for his failure to honour his promise to attend court.

[4] On Tuesday, January 21, 2014, when the appellant again failed to attend court, the trial judge sentenced the appellant, in his absence, to six months imprisonment on each charge, consecutive, for a total term of one year imprisonment, and issued a bench warrant for the appellant’s arrest.

[5] In his brief reasons in support of this disposition, the trial judge commented that the appellant “knew it was coming” as he had been “warned.” Indeed, during the earlier court appearance, the trial judge had told the appellant that if he came back to court with proof he had finished the educational program, he may receive a sentence that was “a lot less,” but that if he failed to return to court, the trial judge would not “bother” with the fail to appear, but would simply impose sentence in his absence, and that this sentence “could be a lot more,” and it would be “automatic” as he would be put in the “slammer” as soon as he was arrested.

[6] The trial judge did not impose any period of probation upon the appellant, nor did he make the ancillary sentencing orders that had been requested. When the trial judge was reminded of the request to make these ancillary orders, he refused, indicating that he was “not going to bother with the DNA” order, and that while the weapons prohibition order was one that was usually imposed in such circumstances, he stated: “that is all I am doing.”

[7] The appellant appealed against this sentence. At the conclusion of argument, I allowed this appeal and reduced the appellant’s jail sentence to “time served” (108 days). At the same time, I imposed a 12-month period of probation upon the appellant, and issued the two requested ancillary sentencing orders. I indicated that I would subsequently provide reasons for this disposition of the appeal. These are those reasons.

B. Analysis

1. The Governing Deferential Standard of Appellate Review

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

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

[9] The governing appellate authorities suggest that in the absence of some error in principle, a failure to consider a relevant factor, or an over-emphasis of appropriate factors, the sentence imposed by a trial judge should not be interfered with on appeal. Indeed, the Supreme Court of Canada has held that sentences should only be altered on appeal when they are “clearly unreasonable,” “demonstrably unfit” or a “substantial and marked departure from sentences customarily imposed for similar offenders committing similar crimes.” See: R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, at paras. 46-50; R. v. M.(C.A.), at paras. 89-94; R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948, at paras. 15-17; R. v. W.(G.), 1999 668 (SCC), [1999] 3 S.C.R. 597, at paras. 18-19; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 18-19; R. v. M.(L.), 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 14-15; R. v. Ramage, 2010, ONCA 488, 257 C.C.C. (3d) 261, at paras. 69-73; R. v. S.(H.), 2014 ONCA 323, at para. 23.

2. The Significance of Joint Submissions

[10] Joint submissions on the issue of sentence are entitled to considerable weight. Normally joint submissions should not be rejected by the trial judge unless the submission is contrary to the public interest or the proposed sentence would bring the administration of justice into disrepute. This is a high threshold. Indeed, whenever a trial judge decides to reject a joint submission and impose some other sentence, the trial judge is obliged to explain and justify why he or she has chosen to depart from the joint submission. See: Ontario, Ministry of the Attorney General, Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (1993, Hon. G.A. Martin, Chair), at pp. 327-330; R. v. Dorsey, (1999), 1999 3759 (ON CA), 123 O.A.C. 342, [1999] O.J. No. 2957, at para. 11; R. v. Cerasuolo (2001), 2001 24172 (ON CA), 151 C.C.C. (3d) 445 (Ont.C.A.), at paras. 8-9; R. v. Cromwell, 2005 NSCA 137, 202 C.C.C. (3d) 310, at paras. 18-21; R. v. Lazo, 2012 ONCA 389, [2012] O.J. No. 2547, at para. 8; R. v. DeSousa 2012 ONCA 254, 109 O.R. (3d) 792, at paras. 15-25; R. v. Reid, 2011 ONCA 824, 286 O.A.C. 394, at para. 14; R. v. Haufe, 2007 ONCA 515, [2007] O.J. No. 2644, at paras. 4-6; R. v. E.(R.W.) 2007 ONCA 461, 86 O.R. (3d) 493, at paras. 22-31.

3. The Fitness of the Term of Imprisonment Imposed by the Trial Judge

a. Introduction

[11] The appellant contends that, in imposing a sentence of 12 months imprisonment, the trial judge erred in a number of important respects. The appellant argues that the trial judge erred: (1) in sentencing him for perceived misconduct that was unrelated to the criminal offences that were before the court; (2) in imposing a sentence that was far outside the range of sentence that was appropriate given the circumstances of the offences and the offender; and (3) in imposing a sentence that was offensive to the principle of totality. I agree with the appellant. Given the errors committed by the trial judge in his sentencing of the appellant, the deference that would otherwise be appropriate in relation to the sentence imposed in this case is inapplicable.

b. Wrongly Sentencing the Appellant for his Failure to Appear

[12] The appellant pled guilty to two offences. There were few facts placed before the trial judge in relation to these two offences. With respect to the “assault with a weapon” charge, the trial judge was told that on October 3, 2013, as security guards were dealing with a troublesome third party who was trespassing on property at Dundas Square and refusing to leave, the appellant, who was apparently a friend of this third party, intervened in a physical struggle between the security guards and this third party, and struck one of the security guards with a plastic bottle. The security guard suffered no injuries. With respect to the “fail to appear” charge, the trial judge was told that, on November 5, 2013, the appellant got “mixed up on [his] days and everything” and failed to appear in court as required. These were the offences for which the appellant was to be sentenced.

[13] From a review of the proceedings before the trial judge, it is apparent that the length of the jail term imposed upon the appellant was driven not by the particular circumstances of these two offences, but rather by the failure of the appellant to honour his promise to appear. During their initial discussion of the trial judge’s idea of the “promise to appear” release, the trial judge told the appellant that if he returned to court his sentence might be “a lot less,” but that if he failed to return to court his sentence may be “a lot more than four months.”[^1] When he imposed sentence upon the absent appellant, the trial judge made no mention of the two offences committed by the appellant, but spoke only of the appellant’s repeated failure to appear in court, and the earlier warning about what would happen in such circumstances.

[14] As s. 725(1) of the Criminal Code provides, there are some circumstances in which it is appropriate for a sentencing court to take into account “other offences” committed by the accused. See: R. v. Garcia and Silva, 1969 450 (ON CA), [1970] O.R. 821, [1970] 3 C.C.C. 124 (C.A.); R. v. Edwards (2001), 2001 24105 (ON CA), 54 O.R. (3d) 737 (C.A.), at paras. 32-38; R. v. Barrett, 2012 ONSC 82, at paras. 30-34. However, none of those circumstances are present in this case. Accordingly, in sentencing the appellant for the two offences to which he had pled guilty, the trial judge could not properly have taken into account the appellant’s failure to appear in court for sentencing.

[15] In my view the trial judge erred by increasing, six-fold, the sentence that the parties jointly suggested was appropriate because of this perceived additional misconduct on the part of the appellant. Notwithstanding the failure of the appellant to appear, the responsibility of the trial judge remained the same – to sentence the appellant for the two offences for which he had pled guilty – not to sentence him for his failure to appear for sentencing. If the appellant was, eventually, charged and found guilty of that additional “fail to appear” offence, he would be sentenced for that offence at some future point in time. It was not the responsibility of the trial judge to decide that he “won’t bother with the fail to appear” and “simply impose the sentence” that includes a significant punishment for that additional perceived offence. This was an error in principle on the part of the trial judge.

c. Ignoring the Joint Submission – Sentence Outside the Governing Range

[16] In all of the circumstances of this case the trial judge ought to have acceded to the joint submission of the parties. As I have indicated, such joint submissions are entitled to considerable weight, and should not be rejected unless they are contrary to the public interest or would bring the administration of justice into disrepute. As Crown counsel fairly conceded during oral argument, the position jointly advanced by the parties in the present case was not contrary to the public interest, nor would its adoption by the trial judge have brought the administration of justice into disrepute. Moreover, while the trial judge clearly rejected this joint submission, he offered no explanation for so doing.

[17] It is important to recall that, at the time he was sentenced, the appellant was just 26 years of age. He had a grade 11 education. As it was described by the Crown, the appellant had a “dated” criminal record “with only a few entries on it.” More particularly, in 2008, the appellant was convicted of assault and uttering threats, for which he was given a suspended sentence and probation, and in 2011, the appellant was convicted of possession of stolen property, and sentenced to 75 days imprisonment. While the appellant is originally from New Brunswick, he had been living in Toronto, “on and off” for the past ten years. At the time of his arrest, he had been “staying at a shelter.” According to the record of the proceedings in this case, the appellant was trying to pursue a particular line of employment, had some educational background in that area, and was trying to complete some outstanding education requirements to secure this employment.

[18] While the joint submission of counsel might fairly be described as being somewhat lenient, especially given that this was not the appellant’s first act of violence and given that he had already served a 75-day term of imprisonment, the joint submission could not, in my view, be accurately characterized as being contrary to the public interest or capable of bringing the administration of justice into disrepute. Indeed, the joint submission seemed to have been carefully crafted by the parties to not only provide an effective measure of denunciation and deterrence (i.e. the 60 days imprisonment), but also to provide the necessary rehabilitative guidance to the appellant (i.e. the term of probation), while providing further protection to the public (i.e. the ancillary orders). The trial judge ought to have acceded to this joint submission.

[19] While the joint submission of the parties might, as I have said, be fairly be viewed as being somewhat lenient, it is difficult to view the 12-month term of imprisonment that was imposed upon the appellant as anything other than harsh and excessive. It was six-times greater than the joint submission of the parties. It was nearly five-times as long as the only other term of imprisonment that had ever been imposed upon the appellant. Further, in imposing consecutive six-month terms of imprisonment, the trial judge failed to properly consider the fitness of the total sentence that was imposed upon the appellant.

[20] Moreover, in failing to impose the proposed probationary period and refusing to make the requested ancillary sentencing orders, the sentence imposed by the trial judge became a very one-dimensional punishment, that was unfortunately neglectful of the other important sentencing considerations. Most obviously, the rehabilitation of the young appellant ought to have merited careful consideration, and should have been reflected in some practical way in the sentence that was imposed. It was not.

[21] By the date of the hearing of the appeal, the appellant had served over three and one-half months of his sentence. In my view, that term of imprisonment is more than adequate to appropriately denounce the two crimes committed by the appellant, and to deter the appellant and others from their commission in the future. Accordingly, I reduced the one-year term of imprisonment imposed by the trial judge to one of “time served.”

4. Failure to Impose a Probation Order

[22] As I have indicated, in my view the trial judge erred in failing to impose the probation order sought by the parties. Such an order was clearly in the best rehabilitative interests of the appellant as it would provide him with continued guidance and supervision following his release from custody. Accordingly, when the appeal was allowed and the appellant’s sentence of imprisonment was reduced to “time served,” I ordered that the appellant be subject to the terms of a probation order for a period of 12 months, on the statutory terms outlined in s. 732.1(2) of the Criminal Code, together with the following additional terms:

• The appellant shall report to a probation officer within two working days of his release from custody, and thereafter as directed by the probation officer;

• The appellant shall abstain from owning, possessing or carrying any weapon;

• The appellant shall refrain from any contact or communication, direct or indirect, with the victim of the assault, Byoung Kang;

• The appellant shall refrain from any contact, communication or association with any individual known by him to have a youth or adult criminal record, unless it is incidental to his employment, education or religious worship;

• The appellant shall maintain gainful full-time employment, or attend an educational facility on a full-time basis; and,

• The appellant shall perform 60 hours of community service, as directed by the probation officer.

5. Failure to Make the Required Ancillary Sentencing Orders

a. The Weapons Prohibition Order

[23] The appellant was convicted of an offence in the commission of which violence against a person was used, namely, the offence of assault with a weapon. Accordingly, pursuant to s. 110 of the Criminal Code, the trial judge was obliged to consider whether it was desirable, in the interests of the safety of any person, to make an order prohibiting the appellant from the possession of any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of up to ten years following his release from custody. As s. 110(3) of the Criminal Code states, where the trial judge does not make such an order, the trial judge is obliged to provide a statement of the reasons for not doing so.

[24] While the trial judge appeared to appreciate, when reminded by the Crown, that this was a case where such an order would have been appropriate, the trial judge simply declined to make the order, saying that the period of imprisonment was “all I am doing.”

[25] In my view, the trial judge erred in failing to make the requested order, and erred in failing to explain why he did not make the requested order. Accordingly, at the conclusion of the hearing of the appeal, I issued that requested order, and indicated that it would be in force for a period of ten years from the date of the appellant’s release from his term of imprisonment for these current offences.

b. The DNA Databank Order

[26] The appellant was convicted of a “primary designated offence,” namely, the offence of assault with a weapon, under s. 487.04 of the Criminal Code. Accordingly, the trial judge was obliged to make an order, pursuant to s. 487.051(1) of the Criminal Code, to have samples of bodily substances taken from the appellant for purposes of forensic DNA analysis.

[27] In the proceedings before the trial judge, the parties agreed that such an order should be made in the circumstances of this case. When reminded of the need to make the order, the trial judge declined to do so, saying that he was “not going to bother with the DNA” order.

[28] In my view the trial judge erred in failing to make the requested order. There was simply no basis, as a matter of law or fact, that would have permitted the trial judge to decline, for any principled reason, to make the requested order. Accordingly, at the conclusion of the hearing of the appeal, I made the requested order.

C. Conclusion

[29] For these reasons, at the conclusion of the hearing of the appeal, I allowed the appeal against sentence, reduced the one-year term of imprisonment imposed by the trial judge to “time served” (108 days imprisonment), imposed a 12-month term of probation upon the appellant (on the prescribed terms), and made the two appropriate ancillary sentencing orders.

[30] In placing the appellant on probation and making the two necessary ancillary sentencing orders, I appreciate that, to a certain extent, I am increasing the effective sentence imposed upon the appellant. Such alterations to trial sentences are, however, statutorily permitted by s. 687(1) of the Criminal Code, which is made applicable to summary conviction appeals by s. 822(1) of the Code. This section provides that an appellate court, on sentence appeals, may “vary the sentence within the limits prescribed by law” for the offence of which the accused was convicted. See: R. v. Hill (No.2), 1975 38 (SCC), [1977] 1 S.C.R. 827, 25 C.C.C. (2d) 6. Defence counsel fairly conceded that the probation order and the ancillary sentencing order were all appropriate in the circumstances of this case.

Kenneth L. Campbell J.

Released: May 30, 2014

[^1]: The trial judge appeared to misunderstand the joint submission that was being advanced by the parties. When the Crown first articulated the position, she suggested “60 days custody” for the appellant, and she twice stated that she was “not opposed” to the sentence being made “intermittent.” Shortly thereafter, the trial judge inquired: “what’s the Crown asking for, four months?” When the Crown responded, “60 days” followed by probation and the two ancillary sentencing orders, the trial judge said “okay” and acknowledged that there was also a request for “weekends.” Yet, shortly thereafter, in telling the appellant what might happen if he did not subsequently appear, the trial judge indicated that he might get “a lot more than four months” imprisonment. No one but the trial judge ever suggested four months as a potential sentence in this case. Of course, as prescribed by s. 732(1) of the Criminal Code, R.S.C. 1985, chap. C‑46, any intermittent sentence cannot be longer than 90 days imprisonment.