CITATION: R. v. Browne, 2017 ONSC 5064
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 07 18
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 (SENTENCING DIRECTIONS)
COROZA J.
[1] This sentencing hearing began on June 29, 2017. The hearing continues this morning. I have released a ruling dealing with the Crown’s submission relating to the Crown’s proposed cross-examination of Mr. Browne on his affidavit. I now provide directions regarding the balance of this sentencing hearing.
Victim Impact Statements
[2] I have received submissions from defence counsel relating to the remaining victim impact statements (VIS). Nine VIS were disclosed on June 28 and 29, 2017.
[3] On June 29, the VIS of Ms. Charmaine Thompson and Ms. Pauline Thompson were read to the Court. There were objections to the form of the VIS and the content of the statements. Specifically, there were objections to portions of Ms. Charmaine Thompson’s statement. I advised counsel that I would receive both VIS and hear from both women. I promised I would release written reasons at a later date as to what portions of the VIS I have accepted and what portions I have disregarded.
[4] The Crown proposes to file seven other statements. Counsel have objected to portions of these VIS. Defence counsel submit that I should excise the offending portions of the VIS before receiving them.
[5] In my view, I should receive the remaining VIS. While many of the cases cited by counsel are applicable, many of them pre-date Amendments to s. 722 (Bill C-32, An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts, SC 2015, c 13) (“CVBR”) came into force on July 23, 2015.
[6] Section 722 of the Criminal Code allows a victim of a crime to present a victim impact statement to the court describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim.
[7] Defence counsel have comprehensively set out many of the principles set out in the cases that were decided under former s. 722. For example, the jurisprudence sets out that the victim impact statement should not contain criticisms of the offender, statements about the facts or presumed facts of the case, or material which appears to be an appeal to the sentencing judge to place a value on the life of the victim, or to compensate grief through the imposition of a harsh sentence.
[8] Two decisions of this Court from two highly respected jurists (Justice Hill and Justice Durno) have directed Crown counsel to redact unacceptable material before the VIS are filed. There is also appellate authority that also approves of this approach (see: R. v. Bremner, 2000 BCCA 345; and R. v. Berner, 2013 BCCA 188, leave denied [2013] SCCA No 48).
[9] I appreciate that the principles set out in the cases cited by defence counsel are applicable.
[10] However, s. 722(8) now provides that the court shall take into account the portions of the statement it considers relevant and disregard any other portion. It seems to me, that this provision recognizes that a sentencing hearing must be conducted efficiently. It explicitly permits a judge to receive the VIS, review it, and disregard any portion that is not relevant. I am not suggesting that VIS should not be redacted or excised in advance of the hearing. Clearly, the direction from my colleagues Justice Hill and Justice Durno should be followed.
[11] However, in this case, given the importance of dealing with this hearing efficiently (the defence position is one of time served), the hearing should not be consumed by an issue that threatens to delay it. What must occur is a procedure that is efficient, fair to all parties and is consistent with Parliament’s intent in enacting the CVBR.
[12] I will provisionally accept the VIS. Pursuant to s.722 (8), I will only take into account portions of the statement that I consider relevant and admissible. The written objections filed by defence counsel will be taken into account and also filed as an exhibit.
[13] I am very much aware of my responsibility to ensure that I disregard irrelevant, prejudicial and inflammatory content. Further written reasons as to what I have considered in the VIS to be admissible will be given at a later date.
[14] In my respectful view, this procedure strikes the appropriate balance. It protects the rights of the offenders by ensuring that I consider only relevant and admissible information in these statements and it also ensures that the expressions of victims to the sentencing judge are dealt with respectfully and sensibly.
Order of proceeding
[15] I have received written submissions from all counsel as to the appropriate sentence. In order to ensure the orderly and efficient hearing of these proceedings, I direct that this hearing will proceed in the following manner.
[16] First, the remaining statements will be filed and read in if requested.
[17] Second, the Crown is permitted to cross-examine Mr. Browne on his affidavit.
[18] Third, Mr. Bryant and Ms. Morphew will continue their submissions as to the facts, enhanced credit based on the harshness of conditions of imprisonment, range of sentence and the proposed sentence for Mr. Browne.
[19] Fourth, Ms. Rozier will make submissions as to the facts, enhanced credit based on the harshness of conditions of imprisonment, range of sentence and the proposed sentence for Mr. Greensword.
[20] Fifth, the Crown will be given a reply to the submissions of both counsel. In that reply the Crown is permitted to address the admissibility of portions of the VIS, and the submission that enhanced credit should be granted because of the harshness of the conditions of imprisonment.
Coroza J.
RELEASED: July 18, 2017
CITATION: R. v. Browne, 2017 ONSC 5064
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 07 18
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
(DIRECTIONS RE: SENTENCING HEARING)
COROZA J.
RELEASED: July 18, 2017