COURT FILE NO.: 21/17(St. Thomas)
DATE: 20180906
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Brian Staley
Appellant
Craig Sigurdson, for the Crown
Robert Sheppard, for the Appellant
HEARD: August 27, 2018
Justice R. Raikes
[1] The appellant, Brian Staley, appeals the sentence imposed by Justice M. O’Dea of the Ontario Court of Justice on June 13, 2017. The Crown consents to the appeal.
[2] Mr. Staley pleaded guilty on November 21, 2016 to two charges: mischief (wilful damage under $5,000) and uttering a threat to cause bodily harm contrary to s. 430(4) and s. 264.1(1)(a) of the Criminal Code. The guilty plea was part of an agreement between the defendant and Crown by which other charges were withdrawn and a joint submission as to sentence was to be made.
[3] Mr. Staley was approved by the Crown for the Early Intervention Program. He completed the Changing Ways (Partner Assault Response) Program following the guilty plea and before sentencing.
[4] A joint submission was made to Justice O’Dea for a conditional discharge with 18 months probation.
[5] Justice O’Dea found the proposed joint submission to be inadequate in light of the aggravating factors present. He rejected the joint submission and entered convictions on the charges, suspended the passing of the sentence and ordered the defendant be bound by an 18 month probation order. In doing so, the sentencing judge failed to raise his concerns with counsel or to give counsel the opportunity to call evidence and/or make additional submissions to address the concerns.
[6] In R. v. Anthony-Cook, 2016 SCC 43, the Supreme Court of Canada clarified the test applicable when a judge considers joint submissions on sentence. That test is the “public interest test”. At para. 32, Justice Moldaver for the Court wrote:
Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest….
[7] Further, he wrote at para. 34:
…Rejection denotes a submission so unhinged from the circumstances of the offence and offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold – and for good reason…
[8] Staring at para. 49, Justice Moldaver provides guidance to trial judges on the approach to be followed when troubled by a joint submission. Critical to this appeal are steps four and five found at paras. 58 and 59:
Fourth, if the trial judge is not satisfied with the sentence proposed by counsel, “fundamental fairness dictates that an opportunity be afforded counsel to make further submissions in an attempt to address…the judge’s concerns before the sentence is imposed” (C. (G.W.), [2000 ABCA 333] at para. 26). The judge should notify counsel that he or she has concerns, and invite further submissions on those concerns, including the possibility of allowing the accused to withdraw his or her guilty plea, as the trial judge did in this case.
Fifth, if the trial judge’s concerns about the joint submission are not alleviated, the judge may allow the accused to apply to withdraw his or her guilty plea. The circumstances in which a plea may be withdrawn need not be settled here. However, by way of example, withdrawal may be permitted where counsel have made a fundamental error about the legality of the proposed joint submission, for example, where a conditional sentence has been proposed but is unavailable.
[9] In this case, the sentencing judge did not alert counsel to his concerns with the joint submission, did not give counsel the opportunity to address those concerns by evidence or submissions and did not give the defendant the opportunity to withdraw his guilty plea. The failure to do so constitutes an error of law.
[10] I note that when taking the plea, Justice O’Dea made no inquiry of any kind as to the voluntariness of the plea, the defendant’s understanding of the import of his plea or that he was not bound by any agreement between counsel and could impose a different sentence. Mr. Staley was represented by experienced defence counsel.
[11] I am advised by counsel that the appeal before me is of the sentence only. There is no challenge being advanced with respect to the adequacy of the guilty plea. It seems to me, however, that the shortcomings in taking the plea heighten the obligation on the court to afford Mr. Staley the opportunity to withdraw his guilty plea.
[12] In addition, I find that the joint submission made does not offend the public interest test; that is, the joint submission in the circumstances of this case and this offender does not bring the administration of justice into disrepute nor would it lead reasonable persons to believe that the justice system had broken down. On the facts admitted as part of the guilty plea and in the circumstances of this defendant, the proposed sentence was well within the range of reasonable outcomes.
[13] Finally, counsel for Mr. Staley notes that the sentence imposed includes a forfeiture order with respect to weapons seized by police from Mr. Staley’s home. Neither of the two offences to which he pleaded guilty involved weapons. A forfeiture order was not part of the plea agreement.
[14] The appellant asks that the forfeiture order be quashed. The appellant does not seek an order for return of the firearms, all of which were recovered from police by his father.
[15] It follows from my conclusions above that the appeal is allowed. The convictions and sentence imposed below are vacated. The forfeiture order is quashed. The sentence is as follows:
The findings of guilt on the charges to which Mr. Staley entered pleas of guilty are maintained.
Mr. Staley is granted a conditional discharge with 18 months probation commencing June 13, 2017 on the following terms:
a. Keep the peace and be of good behaviour; report to a probation officer within two working days of June 13, 2017 and as often thereafter as deemed appropriate.
b. Mr. Staley shall not associate or communicate with Morgan Reilly-Ansons except through or in the presence of counsel.
c. Mr. Staley shall not attend or be within 250 meters of any known place of residence, education or employment of Morgan Reilly-Ansons except in accordance with an order of the court made after June 13, 2017.
d. Mr. Staley shall not attend at or be within 250 meters of the properties municipally known as 44632 and 44620 Mapleton Line, Central Elgin unless authorized by an order of a court made after June 13, 2017.
e. Mr. Staley shall not come within 10 meters of the person of Morgan Reilly-Ansons.
f. Mr. Staley shall submit to an assessment by his probation officer and as a result thereof, shall actively and honestly participate in and complete any interventions demanded with the court’s recommendation that he attend the Men’s Voluntary Program of Changing Ways and, subject to the probation officer’s assessment of his participation in this program, individual counselling focusing his attitudes toward domestic abuse and to learn non-abusive ways of resolving conflict.
g. Mr. Staley shall not possess any weapon or firearm as defined in s. 2 of the Criminal Code.
h. Mr. Staley shall make restitution to Morgan Reilly-Ansons through the court in the amount of $50 payable within 60 days of todays’ date if not already paid.
- The Victim Fine Surcharge shall levy and Mr. Staley has 60 days from this date to pay if he has not already paid same.
“Raikes, J”
Justice R. Raikes
Released: September 6, 2018
COURT FILE NO.: 21/17(St. Thomas)
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Brian Staley
Appellant
REASONS FOR JUDGMENT
Raikes, J.
Released: September 6, 2018