CITATION: R. v. Browne, 2017 ONSC 5062
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 07 17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen v. Steven Browne and Amal Greensword
BEFORE: COROZA J.
COUNSEL: Greg Hendry, for the Crown
Anthony Bryant and Anne Marie Morphew, for Mr. Browne; Nicole Rozier, for Mr. Greensword
REASONS FOR RULING (CROWN REQUEST TO RE-OPEN RULING OF JUNE 29, 2017)
COROZA J.
[1] On March 24, 2017, Mr. Browne was found not guilty of first-degree murder but guilty of the included offence of manslaughter. The sentencing hearing was scheduled to be heard June 28 and 29, 2017. I was unavailable on June 28 because of another jury trial. We commenced this hearing on June 29, 2017. The next date for hearing is scheduled for July 18, 2017.
[2] On June 5, 2017, Ms. Morphew served and filed written sentencing submissions. Mr. Browne has been in custody at Maplehurst since March 19, 2013. In her submissions, Ms. Morphew argues that Mr. Browne is entitled to credit of 1.5:1 but also that Mr. Browne is entitled to further credit or a reduction in the appropriate sentence to recognize the effect of the continual and excessive lockdowns at Maplehurst.
[3] On consent, counsel has filed records from Maplehurst. Counsel has also filed Mr. Browne’s affidavit setting out the impact of the lockdowns. These materials were served and filed on June 26, 2017.
[4] The Crown does not dispute that Mr. Browne is entitled to credit of 1.5:1. However, Mr. Hendry disputes the position taken by Mr. Browne that he is entitled to enhanced credit for the harshness of the conditions at Maplehurst. Mr. Hendry has asked for leave to cross-examine Mr. Browne on his affidavit. Ms. Morphew is not opposed to leave being granted.
[5] During the sentencing hearing on June 29, 2017, it became apparent that there was a dispute as to what the parameters of cross-examination on the affidavit should be. Mr. Hendry submitted that he should be entitled to cross-examine the defendant “at large” and elicit aggravating factors. Ms. Morphew took the position that any cross-examination must be limited to content of the affidavit. After hearing submissions from all parties I advised a ruling would be provided after a recess.
[6] After the recess, I provided to all parties a brief written ruling limiting the cross-examination of Mr. Browne to matters that dealt with the harshness of the conditions and thereby prohibiting cross-examination on any other issue. Mr. Hendry took issue with my ruling and the procedure that preceded it. Counsel submitted that I had determined the matter without hearing submissions.
[7] I did not agree with Mr. Hendry. However, I permitted Mr. Hendry to research the issue and make further submissions in writing. I received those submissions on July 5, 2017.
[8] In response, Mr. Morphew filed her submissions on July 12, 2017.
[9] I have reviewed the materials filed by both counsel. For the following reasons, I am prepared to grant leave for a re-consideration of my ruling. After re-considering the matter, I reach the same conclusion as I did on June 29, 2017 and I will not permit cross-examination of Mr. Browne at large.
[10] Mr. Hendry argues, that the provisions that surround s. 724 of the Criminal Code provide support for his assertion that cross-examination can be used as a tool to elicit relevant factors on sentencing. He argues that 724 (3)(c) does not place a legislative limit on the cross-examination. That section states that “either party may cross-examine any witness called by the other party”. Counsel argues that if Parliament wanted to restrict cross examination to the disputed fact, they could have said that. They did not.
[11] Ms. Morphew argues that since March 2013 when the offender was arrested and remanded into custody at Maplehurst, the jail has been subject to a massive number of lockdowns. She argues that there can be no disputing that fact. However, the Crown does not agree that enhanced credit can be given for this fact. Therefore, Mr. Browne has provided his affidavit before the Court to address the impact the lockdowns and conditions of incarceration have had on him. No issue is taken that the Crown is entitled to cross-examine Mr. Browne on the contents of the affidavit.
[12] However, Ms. Morphew submits that the inquiry is narrow. The issue Mr. Browne has addressed in his affidavit is the conditions of incarceration. The Crown is permitted to do three things in challenging the submission: i) cross-examine Mr. Browne to support its own position that the jail conditions were not particularly harsh; ii) cross examine Mr. Browne in an attempt to discredit Mr. Browne’s evidence that the conditions were particularly harsh and iii) cross-examine Mr. Browne to search for the truth as to whether the conditions were particularly harsh.
Analysis
[13] Mr. Hendry has not persuaded me that he is entitled to cross-examine Mr. Browne at large.
[14] Sentencing hearings may proceed on submissions as to facts, representations of counsel, or any relevant information placed before the court, including hearsay evidence, if not disputed by the opposite party. The procedure at times can be informal and a sentencing judge can rely on relevant and trustworthy information and evidence. The jurisprudence establishes that a sentencing court is to encourage efficiency during the hearing and encourage counsel to provide information on which to fashion a just sanction.
[15] This does not mean that a sentencing hearing has no limits or rules. Where there is a dispute as to a sentencing fact that is relevant to the determination of the sentence, 724 of the Criminal Code sets out the procedure to be followed.
[16] Absent a dispute of a fact, I could rely, without further proof, upon any information given during the sentencing hearing. However, without an agreement of a contested fact, I must follow the procedure set out in s. 724(3) of the Criminal Code. That section states that where, there is a dispute with respect to any fact that is relevant to the determination of the sentence, the procedure outlined in sections (a) to (e) shall be followed. Evidence must be called to resolve the issue.
[17] Section 724(3) (d) of the Criminal Code places the burden on Mr. Browne to prove on a balance of probabilities that his conditions were harsh and that he is entitled to enhanced credit. The Crown is entitled to contest this assertion.
[18] I agree with Mr. Hendry that the text of 724(3) (c) does not appear to limit cross-examination to a disputed fact. However, that does not end the matter. The modern approach to statutory interpretation requires the words to be read in their entire context and according to their grammatical and ordinary sense, harmoniously with the scheme and object of the legislation and the intention of the legislature (see: John Doe v. Ontario (Finance), 2014 SCC 36, at para. 18.)
[19] In this case, the words of 724(3)(c) must be read within the entire context of the section. The section deals with facts and information that I may rely on in determining the appropriate sentence. Section 724(3) provides me guidance in resolving disputes as to contested facts. Evidence will have to be called as to the contested fact. The party contesting the fact is permitted to cross-examine any witness called by the other party. However, the focus must be on the contested fact.
[20] In this case, the contested fact is the harshness of the conditions of imprisonment. This contested fact is relevant to the determination of sentence because it is material to the length of sentence.
[21] I am of the view, that the procedure for contesting this assertion permits the Crown to cross-examine Mr. Browne on issues raised by the affidavit. I see nothing in the jurisprudence or the statutory provisions that would permit the Crown’s cross-examination to go beyond the dispute with respect to the particular fact.
[22] The Crown is not permitted to cross-examine Mr. Browne at large.
Coroza J.
RELEASED: July 17, 2017
CITATION: R. v. Browne, 2017 ONSC 5062
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 07 17
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen v. Steven Browne and Amal Greensword
BEFORE: COROZA J.
COUNSEL: Greg Hendry, for the Crown
Anthony Bryant and Anne Marie Morphew, for Mr. Browne; Nicole Rozier, for Mr. Greensword
REASONS FOR RULING
(CROWN REQUEST TO RE-OPEN RULING OF JUNE 29, 2017)
COROZA J.
RELEASED: July 17, 2017