Court File No. 14-A10078 Citation No.: 2015 ONSC 6062
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
v.
MELISSA HENKEL
R E A S O N S F O R J U D G M E N T
RENDERED BY THE HONOURABLE JUSTICE B. WARKENTIN
on August 26, 2015 at OTTAWA, Ontario
APPEARANCES:
Mr. P. Napier, Counsel for the Crown
Mr. J. Addelman, Counsel for the accused
ONTARIO COURT OF JUSTICE
Exam. Cr.‑ Re‑
WITNESSES In‑Chief Exam. Exam.
E X H I B I T S
EXHIBIT NUMBER ENTERED ON PAGE
L E G E N D
(ph) transcribed as heard
(sp) proper spelling not provided
(sic) transcribed as said and not in error
TRANSCRIPTIONIST’S NOTE: No supporting documentation provided
Transcript Ordered: September 15, 2015
Request Received: September 16, 2015
REASONS APPROVED BY
J. WARKENTIN September 25, 2015
Transcript Completed: September 18, 2015
Ordering Party Notified: ...................
AUGUST 26, 2015
R E A S O N S F O R J U D G M E N T
WARKENTIN, J. (Orally)
This is the Crown’s appeal under s. 813(b)(ii) of the Criminal Code against the conditional sentence imposed by Justice Alder on February 6th, 2015.
There is no disagreement regarding the facts of the events that led to the charge, conviction and sentence of the respondent. It is also acknowledged that deference is the guiding principle of appellate review of sentencing.
However, it is the Crown’s position that the facts in this case contain significant aggravating features, such that a conditional discharge was a manifestly unfit sentence and ought to be set aside because:
it was contrary to the public interest in the case of an unprovoked attack on a pregnant city bus driver;
it did not adequately express the sentencing principles of denunciation and deterrence;
it failed to recognize the vulnerability of public transport operators and failed to adequately protect them through a denunciatory and deterrent-based sentence;
that the sentencing judge placed
inappropriate emphasis on the potential negative effects of a conviction on the respondent’s employment prospects in her chosen line of work; and
- that a conditional discharge was outside the appropriate range of sentences for this type of criminal conduct.
The Crown was of the position that a custodial sentence should have been imposed. Today, the Crown is seeking that due to the respondent’s struggles with a number of mental health issues it no longer seeks a custodial sentence, however the Crown seeks a conviction to be registered with the respondent placed on 12 months’ probation on the same terms as the conditional sentence imposed.
The Supreme Court of Canada has repeatedly acknowledged that great deference is owed to the sentencing judge and that a sentence should not be interfered with unless there has been an error in principle, a failure to consider a relevant factor or over-emphasis of a relevant factor, or the sentence is demonstrably unfit.
It is a longstanding tenet in sentencing that sentencing is an art, not a science, and falls to the discretion of the sentencing judge who is better placed to undertake the task than any reviewing court. As such, an appellate court should not replace its judgment to that of the sentencing judge because it would have imposed a different sentence in the circumstances. A sentence should only be set aside or varied on appeal if it is manifestly unfit. Both the Crown and the Defence provided case law for those principles.
S. 730(1) of the Criminal Code is the statutory authority for granting a discharge, and it states that a discharge may be imposed on any offender for any offence if the offence does not have a minimum punishment, the offence is not punishable by imprisonment for 14 years or life, it is in the best interest of the accused, and, it is not contrary to the public interest.
The Ontario Court of Appeal case in R v Sanchez-Pino 1973 794 (ON CA), [1973] OJ No. 1903 (C.A.) as cited by the Crown, commented that the more serious the offence the less likely it is that a discharge will be “not contrary to the public interest”, and thus inappropriate.
In this case the sentencing judge was aware of the statutory pre-conditions to the imposition of a discharge. Her comments in the Reasons for Sentence demonstrated that she was aware that a conditional discharge could only be imposed if it was in both the accused’s interest and not contrary to the public interest.
It was the Crown’s position that the sentencing judge failed to properly consider if it was contrary to the public interest to impose a conditional discharge in this case. The Crown argued that had the trial judge given this factor the appropriate weight, she could not have found that a conditional discharge was “not contrary to the public interest”.
The Crown also argued that the trial judge erred by finding that the sentencing principles of denunciation and deterrence could be met by discharging the respondent conditionally.
I disagree with the Crown’s position in this appeal, both on the submission that the sentencing judge erred in failing to properly consider the factors of denunciation and deterrence, or that the sentence imposed was manifestly unfit.
The fundamental purpose in sentencing is set out in s. 718 of the Criminal Code. It is to contribute to respect for the law and to maintain a just, peaceful and safe society. A court is required to impose a just sanction that has one or more of the following six objectives:
to denounce unlawful conduct;
to deter the offender and other persons from committing offences;
to separate offenders from society, where necessary;
to assist in rehabilitation of offenders;
to provide reparations for harm done to victims or to the community; and
to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
S. 742.1 provides that a sentence of less than two years, if imposed for an offence not subject to a mandatory minimum jail term, may be served in the community subject to conditions, so long as this would not endanger the community nor be inconsistent with the principles of sentencing.
There is no minimum sentence of imprisonment imposed by the Criminal Code for the offence under which the respondent was charged and convicted. Even the recent amendment to the Criminal Code in s. 269.01(1) does not require a conviction and custodial sentence where the victim of an assault is a public transit operator. The sentencing judge is required to consider this as an aggravating factor. Notwithstanding the fact that s. 269.01(1) was not in force when the sentence was imposed in this case, it is clear from her Reasons that the sentencing judge considered the fact that the victim was a bus driver as an aggravating factor.
The Supreme Court of Canada in the case of R v Proulx which was affirmed in paragraph 17 of R v L.M. 2008 SCC 31, [2008] 2 SCR 163, and the case of R v Carilo 2015 BCCA 192, [2015] BCJ No. 873, strongly emphasized eliminating the use of incarceration wherever possible. The court found that a sentence served in the community will generally be more effective than incarceration at achieving the restorative objective of rehabilitation, reparations to the victim and community, as well as the promotion of a sense of responsibility in the offender.
The court also found that a conditional sentence is a punitive sanction capable of achieving the objectives of denunciation and deterrence. That it may be as onerous as, or even more onerous, than a jail term. The principles for sentencing mandated in Proulx are as follows:
“a ) conditional sentence is available for all offences in which the statutory prerequisites are satisfied;
b ) There is no presumption for or against a conditional sentence for particular offences;
c ) To the extent that both punitive and restorative objectives can be achieved, a conditional sentence is likely a better sanction than incarceration;
d ) Even in cases where restorative objectives cannot be met, a conditional sentence will be preferable to incarceration where objectives of denunciation and deterrence can be achieved;
e ) A conditional sentence can provide a significant amount of denunciation when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would normally be imposed; and
f ) Judges should be wary of placing too much weight on deterrence given the uncertain deterrent effect of incarceration.”
The Crown’s position that the conditional sentence imposed is contrary to the public interest because the public would believe the respondent was not held accountable for her conduct, and that the public’s perception would be that she got off “scot-free” is unreasonable. It is clear from the jurisprudence on sentencing that both Parliament and the public expect judges to craft sentences that balance all of the sentencing principles. The sentencing judge clearly did so in this case.
On the specific facts of this case it is not contrary to the public interest to impose a conditional sentence for a first-time offender; someone who, with appropriate intervention and care, may be rehabilitated. The conditional sentence imposed contained both denunciatory and deterrent elements by the conditions imposed.
Therefore the appeal is dismissed.
I, J. Walsh, certify that this document is a true and accurate transcription to the best of my skill and ability of the recordings of R. v Melissa Henkel in the Ontario Superior Court of Justice held at Ottawa, Ontario, taken from Recording 35-20140815, as recorded and certified by B. Kruger.
J. Walsh,
Certified Court Reporter/Transcriptionist
REASONS APPROVED BY WARKENTIN, J.
SEPTEMBER 25, 2015
This certification does not apply to the Reasons for Judgment
which was judicially edited
PHOTOCOPIES OF THIS TRANSCRIPT ARE NOT CERTIFIED AND NOT AUTHORIZED
UNLESS AFFIXED WITH THE ORIGINAL SIGNATURE OF THE REPORTER