Court File and Parties

COURT FILE NO.: CR-19-4513-AP DATE: 20190523 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty The Queen – and – Ronald Contreras Appellant

Counsel: Carolyn Filgiano for the Crown Julie Santarosa, and Bobby Russon for the Appellant

HEARD: May 23, 2019

On appeal from the sentence entered on December 5, 2018 by Justice Micheline A. Rawlins of the Ontario Court of Justice.

REASONS FOR DECISION

BONDY J.:

A. BACKGROUND

1) Introduction

[1] The appellant Ronald Contreras (“Mr. Contreras”) pleaded guilty to and was convicted of breach of probation contrary to s. 733.1 of the Criminal Code, R.S.C. 1985, c. C-46. This was an appeal of the sentence imposed by Rawlins J. of the Ontario Court of Justice.

[2] The Crown took no position on the appeal.

[3] By way of background, on April 26, 2018 the appellant entered into a probation order which included a term that he not attend “The Duty Free Store” located at 707 Patricia Street, Windsor, Ontario (“the store”). The appellant was subsequently charged with breach of probation for attending the store in contravention of that order. I reiterate the appellant pleaded guilty to the charge.

[4] There was a joint submission as to sentence for ten days custody less nine days “enhanced” pre-sentence custody, with no probation order. In other words, the joint submission as to sentence would involve only one further day of incarceration.

[5] The sentencing judge imposed a sentence of 10 days custody with nine days credit as requested but also included a 12 month probation order, contrary to the joint submission. The last of the 10 days in custody had already been served as of the time the appeal was heard. As a result, the appeal related only to the probation order.

[6] Mr. Contreras appeals sentence on the following grounds:

1. That the trial judge erred in interfering with the joint submission as proposed by counsel for the appellant and the Crown Attorney;
2. That the trial judge erred by refusing to take into consideration submissions regarding “Gladue” principles;
3. That the trial judge erred by failing to conduct an inquiry of either counsel before interfering with a joint submission; and
4. That the trial judge erred by failing to conduct a proper analysis before interfering with the joint submission.

2) The Trial Judge’s Reasons for Sentence

[7] The trial judge’s reasons for sentence appear at the end of a very short transcript. The reasons for sentence themselves consist of less than a page of that transcript. In those reasons only one identifiable reason is offered for the sentence imposed by the trial judge. That is, “I want substances gone.” This economy of language raises several issues which are more fully considered below.

B. ANALYSIS

1) Introduction

[8] The test on a sentencing appeal is not whether the appeal judge would have imposed a different sentence: see R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 47; R. v. Pepin (1990), 98 N.S.R. (2d) 238 (N.S.C.A.), at p. 251; and R. v. Muise (1994), 1994 NSCA 198, 94 C.C.C. (3d) 119 (N.S.C.A.), at pp. 123-24.

[9] Absent an error in principle, or a failure to consider a relevant factor, or an over-emphasis of appropriate factors, the sentence imposed by a trial judge should not be interfered with on appeal. Sentences should only be altered on appeal when they are “clearly unreasonable”, “demonstrably unfit” or a “substantial and marked departure from sentences customarily imposed for similar offenders committing similar crimes”: see R. v. Wagner, 2012 ONSC 5461, at para. 14; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 39-40; R. v. Shropshire, [1995] 4 S.C.R. 227, at paras. 46-50; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 123-25; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163 at paras. 14-15; and R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261 at paras. 69-73.

[10] Having reviewed the decision of the sentencing judge as against those principles in the context of the issues raised on appeal I find it appropriate to allow the appeal and replace the sentence imposed by the trial judge with the joint submission. There are four overarching reasons. They are as follows:

1. The trial judge failed to give the proper deference to the joint submission, and failed to adequately explain why she was departing from the joint submission;
2. The trial judge did not give counsel a reasonable opportunity to make submissions as to Gladue principles, nor did she adequately address her mind to the applicable Gladue principles;
3. The trial judge did not give counsel an adequate and meaningful opportunity to make submissions in general; and
4. The reasons for sentence given by the trial judge are inadequate.

[11] My reasons for coming to those conclusions are as follows.

2) The failure to give proper deference to the joint submission

[12] Joint submissions help resolve the vast majority of criminal cases in Canada, and in doing so contribute to a fair and efficient criminal justice system: see R. v. Anthony-Cook, 2016 SCC 4, [2016] 2 S.C.R. 204, at para. 2; citing R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 47. In order for joint submissions to work, the Crown and offender must have a high degree of confidence that they will be accepted: see Anthony-Cook, at para. 41.

[13] The test to apply for rejecting a joint submission is the public interest test set out by the Supreme Court of Canada in Anthony‑Cook. 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, or a submission is “so unhinged from the circumstances of the offence and the 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”: see Anthony-Cook, at paras. 32, 34. It is an undeniably high threshold.

[14] There is nothing in the very brief reasons offered by the trial judge to suggest that she directed her mind to these fundamental principles related to joint submissions. I reiterate that the portion of the transcript entitled “reasons for sentence” offers only one reason. That is, “I want substances gone.”

[15] I find that her failure to direct her mind to these fundamental principles was an error in principle which in isolation would be sufficient grounds for me to interfere with the sentence given by her.

3) The failure to give counsel an adequate opportunity to make submissions as to Gladue principles

a) Introduction

[16] The offender has First Nations status and identifies as Mohawk.

[17] Defence counsel asked to make submissions as to what he characterized as “Gladue principles”. There were two overarching aspects to the trial judge’s response to that request which I found problematic.

b) The trial judge’s apparent lack of understanding of Gladue principles

[18] The first aspect that I found problematic was the trial judge’s apparent lack of understanding of the obligations on her as a sentencing judge with respect to Gladue principles. The following language appears in the transcript of the proceeding:

I know a lot of First Nations people, sir, and I know the background of the First Nations people and that it’s not compulsory for them to drink, okay, or abuse substances. There are some that are fine, fine First Nations people okay. But as anyone else, when you’re First Nations or not, if you’re not going to address your problem and amass 20 convictions per year, the court has to do something.

[19] I had difficulty with that language for several reasons.

[20] One reason is that the trial judge clearly lacks insight into Gladue principles. Gladue does not stand for the proposition that indigenous offenders are entitled to something like a free pass or automatic discount. Rather, “the judge who is called upon to sentence an aboriginal offender must give attention to the unique background and systemic factors which may have played a part in bringing the particular offender before the courts”: see R. v. Gladue, [1999] 1 S.C.R. 688, at para. 69.

[21] The trial judge flatly refused defence counsel’s request to make submissions in that regard. I find that her refusal was an error in principle which in itself would give me the right to interfere with the sentence imposed: see, R. v. Kakekagamick (2006), 211 C.C.C. (3d) 289 (Ont. C.A.), at para. 56; R. v. Stucky, 2009 ONCA 151, at para. 71.

[22] Another reason I had difficulty with that language is that the trial judge seems to have concluded that once 20 convictions per year are reached, it no longer matters whether an individual is indigenous or not. Again, I find that apparent conclusion irreconcilable with Gladue principles. The trial judge was obviously unaware that although indigenous people represented only about 2 percent of the population of Canada in 1988, as of 2005 they accounted for 17 percent of admissions to federal penitentiaries: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 57 and 62.

[23] Again, I found this was an error in principle which in isolation would have given me the right to interfere with the sentence imposed.

c) The proposed condition that the offender must remain incarcerated while a Gladue report is prepared if the court was to consider Gladue principles

[24] The second aspect of the trial judge’s approach to the defence request to make submissions as to Gladue principles that I found of concern was the option given to defence counsel by the trial judge. Although she refused to hear submissions from defence counsel as to Gladue principles, the trial judge did offer to “order” a Gladue report. I found that offer problematic for several reasons.

[25] One reason was that the trial judge insisted on the precondition that the offender remain incarcerated while the report was being prepared. It was estimated that it would take another seven weeks for a report to be completed. I calculate that to be 49 days. Given that the sentence being imposed only required incarceration for one further day it necessarily follows that the offender would be forced to pay a tariff of 48 days of his life in order to have Gladue principles considered in his sentencing. The trial judge seems to have incorrectly concluded that the consideration of Gladue principles is a privilege rather than a right.

[26] Another reason I found the incarceration condition for a Gladue report problematic in is that defence counsel advised the trial judge that Gladue reports are seldom completed where the sentence involves less than 90 days incarceration. In other words, if the offender had agreed to the trial judge’s offer to be incarcerated while awaiting the report, he may have undergone that additional incarceration without ever receiving the benefit of a report.

[27] Again, I found these were errors in principle which in isolation would have given me the right to interfere with the sentence imposed.

4) The failure to give counsel an adequate opportunity to make submissions regarding the probation condition related to alcohol and drugs

[28] I reiterate the appellant was already on probation. I also say again that trial judge added 12 months further probation, and also added a further condition that the appellant “abstain absolutely from the purchase, possession, and consumption of alcohol or any illegal substances as defined by the Controlled Drugs and Substances Act”.

[29] The trial judge repeatedly interrupted defence counsel’s attempts to make meaningful submissions. Rather, prior to giving reasons, the trial judge found it appropriate to state that she herself pays taxes to have a police force that deals with crimes, “not to deal with people who have decide they want to drink and make a nuisance of themselves”. The trial judge then rhetorically asked “you want to raise your taxes so he can keep drinking?” The trial judge then answered her own question as follows: “the vote is no. That’s the end of it.”

[30] Prior to considering this ground of appeal I find it appropriate to make the observation that the language chosen by the trial judge discloses a profound lack of insight into the burdens faced by those in society with mental health issues which often underlie and include drug and alcohol addiction, as well as the disproportionate number of indigenous offenders who continually find themselves before the court as a result of drug and alcohol addiction.

[31] When given his right of allocution, the appellant expressed an awareness of his addiction, and the need for programs and counselling. He also acknowledges that he was in court that day because of his addictions. It seems to me that was an ideal opportunity for the trial judge to have meaningful dialogue with counsel as to appropriate programs or counselling or other avenues of potential help. Section 718.2 (e) of the Criminal Code is properly seen as a “direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process”: see Ipeelee, at para. 68; citing Gladue, at para. 64.

[32] Unfortunately, the trial judge did not take advantage of that opportunity to explore potential counselling and/or treatment options.

[33] Further, defence counsel specifically argued that a condition related to alcohol and drugs would only set the offender up for failure. When defence counsel attempted to elaborate he was again cut off by the trial judge. The trial judge simply stated that an alcohol and drug prohibition would not set the offender up for failure without elaborating on how she had come to that conclusion with respect to this particular offender.

[34] As said above, in the portion of the transcript entitled “reasons for sentence” the trial judge’s comments related to the issue of the condition related to alcohol and drugs consisted only of the single sentence, “I want substances gone.”

[35] I find that the trial judge’s refusal to hear argument as to that central issue amounted to a failure to consider a relevant factor, and was in turn an error in principle again allowing interference with her sentence: see Anthony-Cook at para. 58; and R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 90.

5) The sufficiency of the reasons

[36] Trial courts can only be held properly accountable if their reasons are transparent and accessible to the public and appellate courts: see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 15. Properly drafted reasons serve a number of functions, including that they:

i. tell the affected parties why the decision was made; ii. provide public accountability; iii. permit effective appellate review; iv. force careful thinking about the relevant legal principles and thus ensure fair and accurate decision-making; and v. contribute to the uniform development of the law.

See R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 11-12.

[37] In determining whether a trial judge gave sufficient reasons, an appellate court must follow a functional approach: see Sheppard, at para. 55; and R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 10. An appeal will only be allowed where the trial judge’s reasons are so deficient that they foreclose meaningful appellate review: see R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25; and Vuradin, at para. 10.

[38] I find the trial judge’s reasons related to the imposition of the alcohol and drug prohibition woefully inadequate.

[39] The courts have from time to time expressed concern with conditions such as alcohol consumption prohibitions that merely set the offender up for failure and for further breaches, and an inability to comply. The trial judge seemed oblivious to those concerns.

[40] To be clear, I am also aware that such circumstances do not necessarily make the condition inherently unreasonable, though many courts have refused to impose such conditions if it would merely set the offender up for failure of reintegration: see R. v. Vena, 2005 ABQB 948, 392 A.R. 200, at para. 9; R. v. Coombs, 2004 ABQB 621, 189 C.C.C. (3d) 397, at para. 39; R. v. P.A.G., [2000] O.J. No. 5837 (C.J.), at para. 104; R. v. Forrest (1992), 10 B.C.A.C. 293 (C.A.); and R. v. McLeod, [1992] Y.J. No. 96 (Sup. Ct.). There must be a contextual analysis in each case.

[41] The difficulty in this case is that, as said above, there was no meaningful analysis in the trial judge’s reasons to support her conclusion that a condition of probation related to alcohol and drugs would achieve her desired end of having the “substances gone”.

[42] To the contrary, the trial judge expressed an awareness that the offender was addicted to alcohol and drugs, and that his addiction played a meaningful part in his regular and persistent conflicts with the law.

[43] Given the jurisprudence supporting the conclusion that the condition related to alcohol and drug consumption may simply be setting the offender up for failure, the trial judge had a duty to provide meaningful reasons for imposing such a condition in these circumstances.

[44] Again, the lack of meaningful reasons in support of the drug and alcohol prohibition calls into question the reasonableness of the sentence imposed. Further, the trial judge’s reasons failed to meaningfully address the facilitation the particular offender's successful reintegration into the community. That is one of the two overarching purposes for probation conditions: see R. v. Shoker, 2006 SCC 44, [2006] 2 S.C.R. 399, at para. 13.

[45] Again, I found this was an error in principle which in isolation would have given me the right to interfere with the sentence imposed.

6) Conclusions

[46] In summary, I find that the trial judge made a substantial number of significant errors in principle, any one of which would have given me the right to consider interfering with the sentence imposed.

[47] I also find that on the record before her there was no basis for the trial judge to interfere with the joint submission.

[48] Finally, I am aware that it may be appropriate for me to send the matter back to the Ontario Court of Justice for reconsideration, however, in the unique circumstances of this case, I find that result would be disproportionately onerous upon the offender. That is because he had one day to serve of the sentence requested in the joint submission and the incarceration portion of the sentence ordered by the trial judge.

[49] It seems to me that in these very unique circumstances it would be more appropriate to allow the appeal, vary the sentence pursuant to section 687(1) (a) of the Criminal Code, and simply delete the portion of the sentence related to probation, as was requested by appellant’s counsel.

C. JUDGMENT

[50] For all these reasons I allow the appeal with respect to the portions of the sentence of Rawlins J. imposed December 5, 2018 related to probation.

“original signed and released by facsimile”

Christopher M. Bondy Justice

Released: May 23, 2019