ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR131000007700AP
DATE: 20140124
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ANTON FARRAGE
Appellant
Jason Gorda and Megan Petrie, for the Crown
Robert Lepore, for the Appellant
HEARD: October 25, 2013 and January 16, 2014
b. P. O’marra j.
judgment
[1] This is an appeal from the sentence imposed by the Honourable Justice David Fairgrieve of the Ontario Court of Justice on May 14, 2013.
the issue
[2] Did the learned Justice err in law in not accepting the joint submission on sentence?
background
[3] On April 26, 2012 the Appellant was charged with Dangerous Operation of a Motor Vehicle contrary to the Criminal Code and Stunt Driving contrary to the Highway Traffic Act arising from the same facts.
[4] After extensive discussions between the Crown and counsel for the Appellant it was agreed as follows:
There would be a guilty plea to Stunt Driving contrary to s. 172(1) of the Highway Traffic Act.
The charge of Dangerous Operation of a Motor Vehicle would be withdrawn.
There would be a joint submission on sentence as follows:
a) a fine of $2,000.00
b) two years probation under the Provincial Offences Act with terms that did not include any suspension of driving privileges.
[5] On May 14, 2013 the Appellant pleaded guilty to Stunt Driving contrary to the Highway Traffic Act.
[6] The facts that were admitted by the Appellant included the following:
• in the late evening he drove his car on Highway 400 at speeds of 190 km per hour in a posted 100 km per hour zone
• at this high speed he weaved between and across lanes, and around other vehicles
[7] The presiding Justice declined to follow the joint submission. He instead imposed a fine of $2,000.00 plus a driving suspension of 12 months. The Court referred to the driving involved as “totally horrendous … just appalling … it was lucky no one was killed.”
[8] Counsel for the Appellant made further submissions after the Court indicated it would not adopt the joint submission.
the law where a court does not accede to a joint submission
[9] The following principles and procedure apply to joint submissions on sentence:
A sentencing Judge is not bound by a joint submission.
The Judge should not depart from such a submission unless satisfied that the recommended disposition would be contrary to the public interest and would bring the administration of justice into disrepute. This is a high threshold.
The justice system depends on Judges rarely departing from joint submissions in order to operate effectively.
There is no interference with 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.
R. v. Thompson 2013 ONCA 202 at paras. 14 and 15.
- A sentence that is manifestly inadequate meets the test related to the public interest and the administration of justice.
R. v. R.W.E. 2007 ONCA 461 at para. 31.
- After explaining why the joint submission is contrary to the public interest or how it could bring the administration of justice into disrepute the Court should do the following:
a) Acknowledge the high threshold for rejecting a joint submission;
b) inform counsel that the Court is disinclined to accept the joint submission;
c) afford counsel the opportunity to make submissions on the matter; and
d) if imposing a different sentence, the Court must fully consider the circumstances of the offences and the offender in determining a fit sentence.
R. v. R.W.W., at para. 33.
R. v. Tsicos 2006 33849 (ON CA), [2006] O.J. No. 4041 (O.C.A.).
analysis
[10] The joint submission was for the minimum penalty of $2,000.00. The sentencing judge clearly felt this was manifestly inadequate based on the admissions in support of the guilty plea. The Court expressly recognized that a joint submission should not be lightly overridden.
[11] Counsel for the Appellant proceeded to make further submissions after the Court advised that there must be a suspension of driving privileges in addition to the minimum fine. There was no request to hold the matter down or adjourn to another date for further evidence or submissions.
[12] On appeal both counsel agreed I could consider further evidence and submissions on sentence in the event that I found there was an error of law at the proceedings in the Ontario Court. However, it is my view that there was no error of law and no basis to interfere with the sentence imposed.
result
[13] Appeal dismissed.
B. P. O’Marra J.
Released: January 24, 2014
COURT FILE NO.: CR131000007700AP
DATE: 20140124
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
ANTON FARRAGE
Appellant
JUDGMENT
B. P. O’Marra J.
Released: January 24, 2014