ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-0075-AP
DATE: 2014-09-26
B E T W E E N:
Her Majesty The Queen,
Gordon Fillmore, for the Crown
Respondent
- and -
Cindy Masakeyash,
Don L.J. Rusnak, for the Appellant
Appellant
HEARD: September 24, 2014,
at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Reasons For Judgment On Summary Conviction Appeal
[1] This is an appeal from sentence on a plea of guilty to two charges of breach of probation, contrary to s. 733 of the Criminal Code.
[2] At the sentence hearing, the defence and Crown made a joint submission for a sentence of one day concurrent on each of the two charges, taking into account time served of 23 days. Ms. Masakeyash had been found severely intoxicated on March 8 and May 13, 2014, in contravention of a probation order of July 23, 2013, which required her to abstain from the purchase, possession or consumption of alcohol.
[3] After hearing the joint submission, the trial judge imposed a sentence of six months imprisonment on the first charge and eight months imprisonment, consecutive, on the second charge, for a total of 14 months, to be served in the community under a conditional sentence order. She also imposed a fine of $15 on each charge.
[4] Ms. Masakeyash has a record of convictions in 2012 for possession of stolen property, three breaches of recognizance and one breach of probation.
[5] The trial judge observed that Ms. Masakeyash was a 22 year old woman, who was at extreme risk in the community because of her abuse of alcohol. The trial judge stated:
THE COURT: “Now it is a joint submission. Your know, if I have to, I will go along with it because it is a joint submission and that is how she entered her plea, but really this is the time we should be keeping her in custody. We should get her into the Algoma Treatment and Remand Centre, give her a sentence of 9, 10, 11 months and get it dealt with so she is not dead on the street. And you have reviewed that with her?
MR. RUSNAK (defence counsel): I have, Your Honour.
THE COURT: Well, I am not going to do what you want me to do. I will put her on a C.S.O. because I want to make sure she sees me if she breaches again. I am going to put her on a lengthy C.S.O. and if she breaches, then she will see me and I can keep her in custody and we will not be going through this again. I do not want to read her death notice in the paper and this is a repeated sentencing for total oblivion out on a public street at 12 noon essentially. …”
[6] The trial judge indicated that she believed that there was a probation order presently in place, but she was concerned that Ms. Masakeyash would keep drinking and that time would run out on the probation order.
[7] The Crown consents to the appeal and supports the position of the defence that the trial judge erred in rejecting the joint submission on sentence.
Discussion
[8] In my opinion, the reasons of the sentencing judge do not meet the requirements set out by the Court of Appeal in R. v. Cerasuolo (2001), 2001 24172 (ON CA), 151 C.C.C. (3c) 445 (Ont. C.A.), R. v. Tsicos, 2006 33849 (ON CA), [2006] O.J. No. 4041 (C.A.), R. v. R.W.E., 2007 ONCA 461, [2007] O.J. No. 2515 (C.A.), and R. v. Haufe, 2007 ONCA 515, [2007] O.J. No. 2644 (C.A.).
[9] In the leading case of Cerasuolo, Finlayson J. A. stated, at pp. 447-448:
“This court has repeatedly held that trial judges should not reject joint submissions unless the joint submission is contrary to the public interest and the sentence would bring the administration of justice into disrepute: e.g. R. v. Dorsey (1999), 120 O.A.C. 342 at 345. This is a high threshold and is intended to foster confidence in an accused, who has given up his right to a trial, that the joint submission he obtained in return for a plea of guilty will be respected by the sentencing judge.
The Crown and the defence bar have cooperated in fostering an atmosphere where the parties are encouraged to discuss the issues in a criminal trial with a view to shortening the trial process. This includes bringing issues to a final resolution through plea bargaining. This laudable initiative cannot succeed unless the accused has some assurance that the trial judge will in most instances honour agreements entered into by the Crown. While we cannot over emphasize that these agreements are not to fetter the independent evaluation of the sentences proposed, there is no interference with the judicial independence of the sentencing judge in requiring him or her to explain in what way a particular joint submission is contrary to the public interest and would bring the administration of justice into disrepute.
[10] In Tsicos, the Court of Appeal set out a number of factors that a sentencing judge should consider before rejecting a joint submission:
• the court should explain why the joint submission is contrary to the public interest or how it could bring the administration of justice into disrepute;
• the court should acknowledge the high threshold of rejecting a joint submission;
• the court should inform counsel that it is disinclined to accept a joint submission and afford counsel the opportunity to make submissions on the matter; and
• if imposing a different sentence, a court must fully consider the circumstances of these offences and this offender in determining a fit sentence.
[11] The Court of Appeal in R. v. DeSousa 2012 ONCA 254 has reiterated the standard described in Cerasuolo, that is, whether the sentence proposed as a joint submission would bring the administration of justice into disrepute or would otherwise not be in the public interest.
[12] In my view, the trial judge’s reasons were not sufficient to explain why the joint submission was ignored. The trial judge did not articulate reasons as to why the sentence proposed on the joint submission would bring the administration of justice into disrepute or why it would otherwise not be in the public interest.
[13] Although the motive of the trial judge was to assist Ms. Masakeyash with her alcohol addiction, the joint submission of the Crown and defence was not unreasonable. Ms. Masakeyash had served 23 days in pre-sentence custody on the breach charges arising out of her drinking. One cannot say that the joint submission was so clearly unreasonable as to make a 14 month conditional sentence order the only proper outcome. As stated by Fish J.A., as he then was, in R. v. Douglas (2002), 2002 32492 (QC CA), 162 C.C.C. (3d) 37 (Que. C.A.), at para. 151, a reasonable joint submission cannot be said to bring the administration of justice into disrepute.
[14] The assessment of whether a sentence is reasonable must also take into account the incentive that is required for an accused to plead guilty. There must be some downward adjustment from the usual range to recognize that the accused is admitting the facts and foregoing a trial. See R. v. R.W.E., at p. 40.
[15] The trial judge appeared initially to accept the joint submission, “You know, if I have to, I will go along with it because it is a joint submission and that is how she entered her plea. …” However, she then stated “Well, I am not going to do what you want me to do.” The trial judge did not acknowledge the high threshold of rejecting a joint submission nor did she give counsel an opportunity to make submissions on the issue of whether the joint submission should be rejected. An accused who gives up a fundamental right to a trial must have confidence that the sentencing judge will respect a joint sentencing submission or, at the least, will not reject it without a full opportunity for counsel to be heard on the issue.
[16] For these reasons, the trial judge erred in principle. She should not have departed from the joint submission unless she was satisfied that the standard set down in Cerasuolo required that departure.
Conclusion
[17] The appeal is allowed. The conditional sentence orders and the fines imposed by the trial judge on June 4, 2014, are vacated and in substitution therefor Ms. Masakeyash is sentenced to one day on each charge of breach of probation, concurrent, deemed to be served in court on September 24, 2014, taking into account time served of 23 days.
The Hon. Mr. Justice D. C. Shaw
Released: September 26, 2014
COURT FILE NO.: CR-14-0075-AP
DATE: 2014-09-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent
- and -
Cindy Masakeyash,
Appellant
REASONS FOR JUDGMENT
ON SUMMARY CONVICTION APPEAL
Shaw J.
Released: September 26, 2014
/mls