CITATION: R. v. Landry, 2016 ONSC 616
PEMBROKE COURT FILE NO.: 15-0831; 15-0832
DATE: 2016-01-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
BRIAN LANDRY
Defendant/Respondent
Caitlin Downing, for the Crown
Self-represented Defendant.
HEARD: January 25, 2016
On appeal from the decision of the Honourable Justice R.G. Selkirk of the Ontario Court of Justice at Pembroke, October 15, 2015
Ray, J
[1] The Crown appeals the sentencing decision of the trial judge in which he ignored the joint submission of counsel following a guilty plea to mischief and breach of conditions and an agreed statement of fact, that the defendant’s conditions of probation include a term that the defendant complete the Partner Assault Response (“PAR”) counselling program for domestic abuse.
[2] In rejecting the joint submission that the defendant as a term of his probation complete the PAR program, the trial judge gave no reasons, gave no forewarning of his intention to ignore the joint submission, and failed to invite submissions. In imposing terms of probation he said simply “and we will make a note that this excludes P.A.R.S. (sic)”. After further describing the sentence, he volunteered: “The reason for that, of course, is he has no prior record and other resources have to be tried first”. It is unclear whether this comment was intended to address his decision to ignore the joint submission, or whether he was addressing the overall sentence.
[3] The Crown’s position is that the conditions of probation ought to have included the PAR program, and that the trial judge was in error in failing to acknowledge the joint submission of counsel. Further the Crown contends that the statement of facts was tailored significantly during the resolution discussions and was done so on the basis that it would be a joint submission that the defendant compete the PAR program as a condition of his probation.
[4] The defendant is self-represented. (He was represented in the proceedings before the trial judge). His position is that the term that was to be included as part of the joint submissions is for his benefit and the benefit of the victims. He agreed to the term and agrees to the Crown appeal.
[5] An appeal against sentence requires that deference be shown to the trial judge’s decision providing the judge behaved judicially. The standard of review requires that an appellate court should not interfere merely because it would have reached a different result and should only interfere if the trial judge made a finding that is unsupported by the evidence or that is unreasonable and would have affected the result.[^1]
[6] The appeal is granted, the portion of the trial judge’s sentence in which he purported to exclude the PAR counselling program for domestic abuse as a term of probation is set aside. In its stead is included a term that the defendant is required to complete the PAR counselling program.
[7] The agreed facts presented to the trial judge are disturbing and disclose that the defendant had engaged in very violent conduct in the context of a domestic relationship. It cannot go unnoticed that domestic violence is prevalent in the criminal justice system. It preoccupies not only the courts but also the police, the Crown and defence counsel who have great experience in managing offenders and victims so as to control what has been described as a scourge in our society. It requires a delicate balance in dealing with offenders. It must be clear that their conduct cannot be tolerated, but at the same time they must be required, where appropriate to address their behaviours through counselling or other programs. I take from the record that the Crown and the defence in this case settled on orders that they considered would find that balance; and that included the PAR program.
[8] Recent events demonstrate that Renfrew County is not immune from violent domestic offences. Particularly in domestic abuse cases, it is not for a trial judge to second guess a joint submission without a careful analysis and an opportunity for counsel to make submissions. It is a high threshold. Even then, a trial judge is obliged to explain in what way a particular joint submission is contrary to the public interest and would bring the administration of justice into disrepute.[^2] The trial judge did neither. I am well satisfied that the joint submission concerning counselling as a term of probation for the offender was in accord with the public interest in this case; and according to the defendant in his interests as well.
Honourable Justice Timothy Ray
Released: January 25, 2016
CITATION: R. v. Landry, 2016 ONSC 616
PEMBROKE COURT FILE NO.: 15-0831; 15-0832
DATE: 2016-01-25
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Appellant
– and –
BRIAN LANDRY
Defendant/Respondent
REASONS FOR JUDGMENT
Honourable Justice Timothy Ray
Released: January 25, 2016
[^1]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[^2]: R. v. Cerasuolo (2001), 2001 CanLII 24172 (ON CA), 151 C.C.C. (3d) 445 (Ont. C.A.) at pages 447-448, cited with approval in R. v. Thompson, [2013] O. J. No. 1546, 2013 ONCA 202 (Ont. C.A.) at paragraph 14.