Her Majesty the Queen v. Eric Brazau, 2016 ONSC 1484

CITATION: R. v. Brazau, 2016 ONSC 1484

COURT FILE NO.: CR-15-5000000600-AP

DATE: 20160307

ONTARIO

SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

ERIC BRAZAU

Appellant

Luke Schwalm, for the Crown

Wayne A. Cunningham, for the Appellant

HEARD: February 22, 2016

REASONS FOR JUDGMENT (On Appeal from the Sentence Imposed by Justice G. Lapkin of the Ontario Court of Justice on January 6, 2015)

B. P. O’Marra, J.

OVERVIEW

1On January 6, 2015, the appellant was found guilty of the following offences after a two-day trial:

(i) Mischief, contrary to s. 430 of the Criminal Code, R.S.C. 1985, c. C-46;

(ii) Cause a disturbance, contrary to s. 175(1)(a)(i) of the Criminal Code; and

(iii) Breach of probation, contrary to s. 733.1 of the Criminal Code.

The global sentence imposed was twenty months in jail less credit for eight months of pretrial custody plus two years probation.

2The appellant submits that the trial judge erred in not providing reasons why the sentences were consecutive rather than concurrent. He also submits there was a failure to consider or refer to the principle of totality.

EVIDENCE AT TRIAL

3At mid-afternoon on Tuesday, July 29, 2014, the appellant boarded the Bloor subway in Toronto. He was accompanied by two friends. One friend wore clothing that depicted the Israeli flag. The second friend had a video recording device. While on the subway, the appellant and the man in the Israeli flag clothing discussed Islam and the Quran. The second friend recorded the conversation. The appellant viewed this process as a “social experiment” and wanted to record other people’s views on those topics.

4Another passenger joined the conversation. When that conversation ended, the passenger told the appellant that he respectfully disagreed with him. As the passenger left the train, the appellant stated “it wasn’t that nice to meet you. I hate Muslims.” A number of other passengers appeared to be shocked by that comment.

5Ms. D. was in that subway car with her two young children when the above conversation took place. The appellant engaged her in conversation. He did so in a loud voice and came close to her. She felt intimidated. She tried to remain calm and to shield her children from the situation. A friend of the appellant continued to film this interaction despite her request not to film her or her children. Ms. D. noticed that other passengers appeared to be disturbed by this incident. Three young Muslim girls wearing hijabs kept their heads down and avoided eye contact. An unidentified passenger pressed the alarm button which stopped the train just before it reached Islington station.

6A TTC employee approached the appellant at the station and asked him to get off the train. The appellant refused to disembark. The train did not move for 10-15 minutes and then departed for Kipling station.

7At Kipling station, seven TTC employees were waiting for the appellant. Ms. D. exited the train and waited on the platform. A TTC supervisor asked the appellant two or three times to leave the train. He refused. There were two eastbound trains waiting to proceed, one on either side of a central platform. When the appellant refused to leave the train, the passengers would cross over to the other train. However, the appellant then ran across with those passengers and on to the other train. This frustrated the TTC in getting the trains moving. One train was out of service for 27 minutes. The ripple effect of the actions of the appellant caused delays to other trains. This in turn caused delays for thousands of commuters on the busy weekday subway.

8The TTC supervisor eventually approached the appellant and told him that the police had been called. The appellant was arrested shortly thereafter.

9The appellant remained in custody from his arrest on July 29, 2014 through his trial on January 5 and 6, 2015. On April 17, 2015, he was released on bail pending appeal.

DISPOSITION AT TRIAL

10The appellant had the following criminal record before the current offences were committed:

1986-10-08 Obstruct peace officer $150 I-D 14 days Montreal Que. Sec 118 CC

1991-07-03 (1) Assault sec 266(a) CC (1) Fine & cost $200 I-D 2 months Montreal Que. (2) Mischief over $1000 (2) Probation 2 yrs.

Sec 430 (1) (a) (3) (a) CC

1993-04-30 (1) Assault sec 266 CC (1) Fine & cost $500 I-D 3

months & probation 2 yrs.

Montreal Que. (2) Uttering threats $500 I-D 3 mos. sec 364.1 (1) (a) (2) CC & probation 2 yrs.

1996-02-15 Assault sec. 266 (b)CC 20 days on each charge & (2 charges) probation 1 yr.

2002-09-23 Assault sec. 266 (b) CC 30 days & probation 2 yrs. Montreal Que. 2008-10-07 Assault sec. 266 CC Suspended sentence & Toronto ONT probation 12 mos. & (6 days presentence custody) & discretionary prohibition order sec. 110 CC for 5 yrs.

2011-01-27 Assault with a weapon, 38 days in jail (7 days fail to comply probation presentence custody), 2 yrs. probation

2013-03-20 Fail to comply with a recognizance Suspended sentence (60 days presentence custody), 2 yrs. probation

2013-10-29 Fail to comply with a recognizance 60 days jail

2014-04-01 Mischief, criminal harassment, Probation fail to comply with probation, wilful promotion of hatred

11The full particulars of the sentence imposed on April 1, 2014 were not set out in the trial record or on appeal. There is no dispute that the appellant was on probation on the date when the current offences were committed.

12The trial judge imposed the following sentences:

(1) Mischief to property – five months;

(2) Causing a disturbance – five months consecutive;

(3) Breach of probation – ten months consecutive

Total: twenty months

13The appellant was given credit for the equivalent of eight months pre-trial custody. He served approximately 108 days from the date of sentence until he received bail pending appeal.

14The trial judge did not refer specifically to the principle of totality, nor did he indicate his reasons for making the sentences on each count consecutive rather than concurrent.

POSITION OF THE PARTIES

15The appellant submits that the trial judge made errors in principle. On that basis, he submits the sentencing reasons are not entitled to appellate deference. He further submits that the proper and fair disposition in totality should have been six to eight months in jail. That would be time served as of the trial date.

16The respondent submits that there were no errors in principle. In the alternative, he submits that the sentences were not demonstrably unfit.

THE LAW

17The Supreme Court of Canada recently clarified the standard on the basis of which an appellate court may intervene and vary a sentence imposed by a trial judge and the extent to which deviation from a sentencing range that is otherwise established and adhered to may justify appellate intervention in R. v. Lacasse, 2015 SCC 64:

1 Sentencing remains one of the most delicate stages of the criminal justice process in Canada. Although this task is governed by ss. 718 et seq. of the Criminal Code, R.S.C. 1985, c. C‑46 , and although the objectives set out in those sections guide the courts and are clearly defined, it nonetheless involves, by definition, the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing.

3 The credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders. A sentence that is unfit, whether because it is too harsh or too lenient, could cause the public to question the credibility of the system in light of its objectives.

11 This Court has on many occasions noted the importance of giving wide latitude to sentencing judges. Since they have, inter alia, the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in this regard. The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention. Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.

18The court emphasized the importance of public confidence in the process by noting at paragraph 12, that:

12 “…both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice. Moreover, if appellate courts intervene without deference to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of the system and the authority of trial courts”.

19The court then detailed the role of appellate courts in reviewing a sentence at paragraphs 36-55:

36 Appellate courts generally play a dual role in ensuring the consistency, stability and permanence of the case law in both the criminal and civil law contexts. First, they act as a safeguard against errors made by trial courts and are thus required to rectify errors of law and review the reasonableness of the exercise of discretion. They must ensure that trial courts state the law correctly and apply it uniformly.

40 In this regard, Iacobucci J. explained in Shropshire that consideration of the fitness of a sentence does not justify an appellate court taking an interventionist approach on appeal:

An appellate court should not be given free rein to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable. [para. 46]

41 In Proulx, this Court, per Lamer C.J., discussed these same principles, which continue to be relevant:

In recent years, this Court has repeatedly stated that the sentence imposed by a trial court is entitled to considerable deference from appellate courts: see Shropshire, supra, at paras. 46‑50;M. (C.A.), supra, at paras. 89‑94; McDonnell, supra, at paras. 15‑17 (majority); R. v. W. (G.), 1999 CanLII 668 (SCC), [1999] 3 S.C.R. 597, at paras. 18‑19. In M. (C.A.), at para. 90, I wrote:

Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code . [First emphasis added; second emphasis in original]

Although an appellate court might entertain a different opinion as to what objectives should be pursued and the best way to do so, that difference will generally not constitute an error of law justifying interference. Further, minor errors in the sequence of application of s. 742.1 may not warrant intervention by appellate courts. Again, I stress that appellate courts should not second‑guess sentencing judges unless the sentence imposed is demonstrably unfit. [paras. 123 and 125]

These principles have since been reiterated in L.M. and Nasogaluak.

43 I agree [with the dissenting opinion] that an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor can justify the intervention of an appellate court and permit that court to inquire into the fitness of the sentence and replace it with the sentence it considers appropriate. However, in my opinion, every such error will not necessarily justify appellate intervention regardless of its impact on the trial judge’s reasoning. If the rule were that strict, its application could undermine the discretion conferred on sentencing judges. It is therefore necessary to avoid a situation in which [translation] “the term ‘error in principle’ is trivialized”: R. v. Lévesque‑Chaput, 2010 QCCA 640, at para. 31.

44 In my view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impact on the sentence.

49 For the same reasons, an appellate court may not intervene simply because it would have weighed the relevant factors differently. In Nasogaluak, LeBel J. referred to R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35, in this regard:

To suggest that a trial judge commits an error in principle because in an appellate court’s opinion the trial judge gave too much weight to one relevant factor or not enough weight to another is to abandon deference altogether. The weighing of relevant factors, the balancing process is what the exercise of discretion is all about. To maintain deference to the trial judge’s exercise of discretion, the weighing or balancing of relevant factors must be assessed against the reasonableness standard of review. Only if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate court interfere with the sentence on the ground the trial judge erred in principle. [para. 46]

52 It is possible for a sentence to be demonstrably unfit even if the judge has made no error in imposing it. As Laskin J.A. mentioned, writing for the Ontario Court of Appeal, the courts have used a variety of expressions to describe a sentence that is “demonstrably unfit”: “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a “substantial and marked departure”: R. v. Rezaie, 1996 CanLII 1241 (ON CA), 31 O.R. (3d) 713 (C.A.), at p. 720. All these expressions reflect the very high threshold that applies to appellate courts when determining whether they should intervene after reviewing the fitness of a sentence.

53 This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, which provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2 (a) and (b) of the Criminal Code.

54 The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the fundamental principle of proportionality. This Court explained this as follows in M. (C.A.):

It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . . Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [para. 92]

55 This principle of parity of sentences also means that the deference owed to the sentencing judge must be shown except in the circumstances mentioned above. The Court said the following in this regard in L.M.:

This exercise of ensuring that sentences are similar could not be given priority over the principle of deference to the trial judge’s exercise of discretion, since the sentence was not vitiated by an error in principle and the trial judge had not imposed a sentence that was clearly unreasonable by failing to give adequate consideration to certain factors or by improperly assessing the evidence (M. (C.A.), at para. 92, quoted in McDonnell, at para. 16; W. (G.), at para. 19; see also Ferris, at p. 149, and Manson, at p. 93). [para. 35]

20The totality principle requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. See R. v. M (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 at para. 42.

21Sentences for offences arising out of the same transaction or incident should not necessarily be made concurrent if the offences constitute invasions of different legally protected interests, although the principle of totality must be kept in mind. R. v. Gummer, (1983) 1983 CanLII 5286 (ON CA), 38 C.R. (3d) 46 (Ont. C.A.) at para. 144, and R. v. Mascarenhas, (2002) 2002 CanLII 41625 (ON CA), 60 O.R. (3d) 465 (C.A.) at para. 31.

22The decision to order concurrent or consecutive sentences should be treated with the same deference owed by appellate courts related to the lengths of sentence. It is not for an appellate court to intervene absent an error in principle, unless the sentencing judge ignored factors or imposed a sentence which in totality is demonstrably unfit. See R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948 at para. 46.

23In R. v. M.E., 2012 ONSC 1078, Justice Hill held at paragraph 65 that it was an error to work backwards from a global sentence without first determining the appropriate sentence for each crime. He summarized at paragraphs 68-69 that the sentencing judge should first determine whether the offences are to be served consecutively and then affix an appropriate sentence for each offence. Then the court should apply the totality principle.

24In R. v. B.D., 2014 ONCA 621, the court found that the failure of the sentencing judge to expressly state she had considered the principle of totality disentitled the trial judge’s decision to the deference that is normally due. Despite that, however, the court did not interfere with the sentence imposed.

ANALYSIS

Consecutive or Concurrent

25The trial judge was entitled to impose consecutive sentences based on the distinct legally protected interests involved.

26The disturbance caused by the insulting and racist language used by the appellant was complete, separate and apart from the impact on the operation of the subway that day.

27The mischief charge related to the significant negative impact of the appellant’s words and actions on members of the public and the TTC, far beyond those who actually heard his offensive comments. Thousands of commuters and many TTC employees were diverted and inconvenienced from their original schedules.

28The breach of probation count related to a serious violation of a court order. The appellant was bound to keep the peace based on a court order less than four months prior that included a conviction for the wilful promotion of hatred.

Totality

29It is agreed that the trial judge did not explicitly refer to totality in imposing sentence. The decision to impose consecutive sentences is entitled to significant deference. However, the court is then obliged to consider totality.

30The failure to expressly state that totality was considered disentitles the decision to deference. However, as in B. D., I would not interfere with the sentence imposed.

31A court that imposes a sentence is required to consider, inter alia, evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin or religion, pursuant to s. 718.2(a) (i) of the Criminal Code. This was an aggravating feature on these charges.

32The appellant has a significant and recent criminal record. It includes four breaches of court orders.

33The appellant was entitled to have a trial and must not be punished for doing so. However, his evidence at trial showed a disturbing lack of insight into the effect of his words and actions on other innocent citizens. His conduct caused significant delays to the operation of the subway on a weekday in Canada’s largest city.

34The totality principle does not warrant interference with the sentences imposed. The appeal as to sentence is dismissed.

35The appellant is currently on bail pending appeal. He is to present himself on a date agreed between counsel to go back into custody and resume his sentence within 14 days of this judgment. If there is any issue regarding this, the matter can be brought back before me on short notice.

36I am grateful to both counsel for their helpful materials and submissions.

B. P. O’Marra, J.