COURT FILE NO.: CR-19-00000094-00AP
DATE: 20201001
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KAMII PARKER-FORD
Defendant/Respondent
Helen Song, for the Crown (Appellant)
Brian Weingarten, for the Defendant (Respondent)
HEARD: June 22, 2020
MOLLOY J.:
REASONS FOR decision
A. INTRODUCTION
[1] The Crown appeals from the sentence imposed on Kamii Parker-Ford on November 18, 2019 by Justice S. Chapman in the Ontario Court of Justice. Mr. Parker-Ford had pleaded guilty to various offences arising from the same incident, the most serious being assault causing bodily harm. The Crown initially sought a term of imprisonment for 150 days, to be followed by probation for two years. Defence counsel (not the same counsel as on this appeal) sought a suspended sentence with a three-year probation period. At the sentencing hearing on November 8, 2019, after hearing the defence evidence and the statement by Mr. Parker-Ford, Crown counsel (also not the same counsel as on this appeal) advised the Court that he remained of the view that a term of imprisonment was required, but acknowledged that the length of imprisonment should be something less than he had initially recommended, and left the length of the sentence to the trial judge’s discretion.
[2] Justice Chapman reserved her decision for 10 days. On November 18, the hearing reconvened and the sentencing judge, without inviting any further submissions from counsel, granted a conditional discharge. She imposed a three-year probation period essentially on the terms suggested by the defence at the hearing, including counselling for anger management and 100 hours of community service.
[3] The Crown submits that the sentencing judge erred by imposing a sentence that was different from anything suggested at the hearing, and more lenient than the sentence proposed by defence counsel, without first advising counsel that she was considering such a disposition and giving them an opportunity to make submissions. Further, and in any event, the Crown submits that the sentence is demonstrably unfit and should be set aside. Although the trial Crown had sought a period of imprisonment, on appeal the Crown submitted that the appropriate disposition was a suspended sentence plus two years’ probation on terms similar to those imposed as part of the conditional discharge. The Crown does not seek a rehearing, but merely that the decision of November 18, 2019 be set aside and that I impose the sentence I determine to be fit based on the existing record.
[4] Defence counsel argued before me that the sentence imposed was fit and proper and entitled to deference. In the event I were to find that the sentencing judge erred by failing to give the Crown an opportunity to make submissions, the defence agreed that there was no need for a new hearing and that I should simply impose the sentence I thought appropriate based on the record.
[5] At the conclusion of the argument, I advised that I needed time to reflect on the question of whether the sentencing judge committed reversible error by failing to give the Crown an opportunity to make submissions before granting a conditional discharge. However, I also stated that in my view a conditional discharge was an appropriate disposition for this case, and that I would reach that decision regardless of whether I: (a) found no error and deferred to the discretion of the initial sentencing judge; or, (b) set aside her decision and exercised my own discretion as to what constituted a fit sentence. Accordingly, the sentence imposed remains in place.
[6] Having reflected on the matter, I find that the sentencing judge did err in not giving the Crown an opportunity to be heard on the issue of whether a conditional discharge was a fit sentence. However, as I would impose the same sentence in any event, this error has no impact on sentencing. Therefore, I have not interfered with the decision and the sentence stands.
B. CROWN ENTITLED TO NOTICE
[7] In this case, two important legal principles are in apparent conflict. First, it is a fundamental principle of our justice system that every party is entitled to be heard before a decision is made in a case that affects their interest. In every criminal case, the parties who are entitled to be heard are, at a minimum, the person accused of a crime and the Crown Attorney (who represents the state, or the public interest). This principle applies to the sentencing process in the same way as it applies to every criminal proceeding.
[8] The second principle which is said to create a conflict in this case is the fact that sentencing is in the discretion of the trial judge and the trial judge is not obliged to accept any position taken by counsel as to the appropriate sentence. Provided the sentence imposed is a fit sentence in all the circumstances, the trial judge may impose a sentence that is higher or lower than what was proposed by either counsel.
[9] The way in which these two apparently conflicting principles can live in harmony is for the trial judge to give fair warning to the parties if she is contemplating a sentence above or below what anyone has proposed. In this case, in my view, fairness required the trial judge to alert the Crown that she was granting a conditional discharge and giving the Crown the opportunity to make submissions on the point.
[10] In R. v. Grant,[^1] the Ontario Court of Appeal considered the fairness of a sentence imposed by a trial judge that exceeded what had been requested by the Crown. The two accused were convicted of second degree murder as well as multiple counts of aggravated assault and attempted murder. The Crown and defence made their submissions as to the appropriate sentences. The trial judge, without any warning or notice, imposed lengthier sentences on each offence than had been recommended by the Crown (with one exception). Laskin J.A. held that this was an error in principle that affected the fairness of the sentencing process. He held (at paras. 164-165):
. . . A trial judge is entitled to go beyond the Crown’s position if the sentence imposed is still reasonable. But a long line of authority in this court has held that when a trial judge proposes to do so, the trial judge should alert the parties and give them an opportunity to make further submissions. And ideally, if the trial judge still does impose a sentence in excess of a Crown’s position, the trial judge should explain the reason for doing so.
Here, the trial judge did neither. He did not give the parties a chance to make further submissions and gave no reasons for going beyond the Crown’s position. His failure to do so amounts to an error in principle and entitles this court to reassess the appellants’ sentences: R. v. Hagen, 2011 ONCA 749, at para. 5; R. v. Menary, 2012 ONCA 706, 298 O.A.C. 108, at para. 3; R. v. Ibrahim, 2011 ONCA 611.
[11] While this decision involved an unfairness to the accused, I see no reason it would not apply to the Crown as well, given that the right to be heard is a procedural fairness right vesting in both the accused and the Crown in a criminal trial.
[12] The respondent relies on the decision of the Quebec Court of Appeal in R. v. Gabriel, which in turn relies extensively on the Alberta Court of Appeal decision in R. v. Keough.[^2] I do not find the decision in Gabriel to be persuasive as the Crown in that case had not made a firm recommendation as to sentence. However, the decision in Keough is more directly relevant. In that case, the accused was convicted of two counts of possession of child pornography and two counts of voyeurism. The Crown sought a sentence of 6-9 months on the pornography charges, to be served concurrently, plus 9 months on the voyeurism charges, also concurrent, for a global sentence of 15-18 months. The defence submitted that the appropriate sentence would be 45 days in custody for the pornography counts, concurrent, and a suspended sentence on the voyeurism counts. The trial judge imposed a sentence of 9 months for each of the voyeurism counts, concurrent (as recommended by the Crown), and a sentence of 9 months on each of the child pornography counts, but to be served consecutively. The global sentence was therefore 27 months, rather than 18 months, which was the top of the range suggested by the Crown. However, that difference was solely attributable to the child pornography sentences being served consecutively rather than concurrently. The trial judge was aware he was departing from the Crown’s recommendation for concurrent sentences but held that consecutive sentences were appropriate because the two offences were one year apart in time and involved different people. The Alberta Court of Appeal set aside the finding that the sentences should be consecutive. In doing so, the Court held that it is advisable to give warning to counsel when departing from a recommended range in sentence, but that it is not always, an error in principle to do so. The Court also noted that the failure of the trial judge in this case to seek further submissions before going beyond what counsel had recommended was a good illustration of why it is always preferable to give notice. In proceeding as he did, the trial judge had misapprehended the basis for the Crown’s submission for concurrent sentences, which was the possession itself was with respect to two separate videos in the possession of the accused on the same day. Therefore, the submissions made in respect of the total time of 6-9 months was based on their being two videos. The Court also noted that since the Crown made no issue of the sentences being concurrent, the defence also did not raise it and advance arguments in support of that position. The Court reasoned as follows (at paras. 19-21):
Sentencing takes place in an adversarial context. It is anticipated that in most cases the sentence imposed will fall at the boundaries, or within the range of sentences recommended by counsel. While there is no legal requirement that the sentencing judge stay within that range, or adopt the recommended structure of the sentences, it is of concern when that is not done. As the Court observed in R. v S.G.T., 2010 SCC 20 at paras. 36-7, [2010] 1 S.C.R. 688: “. . . trial judges are expected to be impartial arbiters of the dispute before them; the more a trial judge second‑guesses or overrides the decisions of counsel, the greater is the risk that the trial judge will, in either appearance or reality, cease being a neutral arbiter and instead become an advocate for one party.” The accused is entitled to reasonable notice of the jeopardy he faces, and a fair opportunity to make submissions. The Crown is also entitled to a reasonable opportunity to explain its position. Where the Crown makes a recommendation that the accused finds to be acceptable or fair, both sides may believe the point is not in contention, and the accused may not make any submissions on the point; a subsequent sentence inconsistent with that recommendation can catch both parties by surprise. An accused who receives a sentence outside the recommended range may in such circumstances harbour a feeling of unfairness and injustice.
The case law recognizes the importance of a trial judge giving fair warning to counsel when he or she proposes to sentence outside the recommended range: R. v. Hood, 2011 ABCA 169 at para. 15; R. v. Abel, 2011 NWTCA 4 at para. 23; R. v. Beal, 2011 ABCA 35 at paras. 15, 18, 502 A.R. 177, 44 Alta. L.R. (5th) 306. This is a component of a wider principle that the parties are entitled to reasonable notice if the judge proposes to decide the case in a way not advocated by either party: R. v. Al‑Fartossy, 2007 ABCA 427 at paras. 22-5, 83 Alta. L.R. (4th) 214, 425 A.R. 336; Murphy v. Wyatt, [2011] E.W.C.A. Civ 408, [2011] 1 W.L.R. 2129 at paras. 13-19; Labatt Brewing Co. v. NHL Enterprises Canada, 2011 ONCA 511 at paras. 5, 14, 106 O.R. (3d) 677; In Re Lawrence’s Will Trusts, [1972] Ch 418 at p. 436-7. Nevertheless, the sentencing judge has an obligation to impose a fit sentence, and neither exceeding the recommended range, nor failing to give counsel notice of intention to exceed the range, is, without more, reviewable error. If the sentence imposed is not demonstrably unfit having regard to the principles of sentencing in the Criminal Code, appellate interference is not warranted. Failing to seek the input of counsel may, however, make it more likely that the trial judge may overlook or overemphasize the relevant factors, rely on an irrelevant factor, impose a sentence based on an error in principle, or commit some other reviewable error.
In some cases the failure to warn counsel that the sentencing judge is considering exceeding the recommended range may have no practical effect. It may well be that the relevant points, and the supporting case law, were fully canvassed during argument, and there was little more that could have been said; the trial judge simply disagreed with counsel. That was not, however, the case with this sentencing. The trial judge explained that his departure from the recommended structure of the sentences resulted because the Crown “did not develop a position” justifying concurrent sentences. This is precisely the type of situation in which counsel should have been given an opportunity to make further submissions. The Crown (as will be seen from the next section of these reasons) would have been able to “develop such a position”. Given the submissions being made by the Crown at the sentencing hearing, counsel for the appellant also likely did not emphasize the appropriateness of concurrent sentences. As such, counsel for the appellant may well have had much to say in support of the Crown’s position, if an opportunity had been extended. Similar observations can be made about the trial judge’s perception that the Crown had overlooked the “private use materials” dimension of the charges.
[Emphasis added]
[13] Obviously, the first point to be made is that the Ontario Court of Appeal has held it to be a reversible error in principle to go beyond the sentence recommended by counsel without giving the parties an opportunity to be heard. I am bound by the Ontario Court of Appeal, and not by the Alberta Court of Appeal.
[14] That said, there is not a great divergence between the two. There will be cases where, as a practical matter, the failure of the trial judge to give notice to the parties will have no impact. That will typically occur when the deviation is minor and the sentence imposed is clearly fit. In such circumstances it may be apparent on appellate review that the additional submissions, if sought, would have had no impact. For example, if the defence recommends a sentence of one year and the trial judge imposes a sentence of 11 months, it would be difficult to say that any failure to give notice to the Crown would have had any impact on the hearing, as the submissions would likely have been identical.
[15] In the case before me, however, I consider the trial judge’s failure to seek submissions to be an error in principle. The sentence she imposed was fundamentally different from anything sought by the parties. The defence did not seek a conditional discharge, and there was therefore no reason for the Crown to address whether such a sentence would have been appropriate in all the circumstances. The Crown ought to have been given the opportunity to address argument on the issue and submit case authority, if counsel thought it appropriate. It is not for the trial judge to impose an entirely different kind of disposition after independently researching its appropriateness and without seeking submissions from the parties affected.
[16] In my opinion this is an error in principle, justifying appellate intervention. Before me on appeal, both counsel had a full opportunity to make submissions on the appropriate sentence, including whether there should be a conditional discharge. Both agreed that a new hearing was not required and that I should substitute the sentence I consider fit. Having considered the matter, I find that a conditional discharge is the proper disposition. My reasons for that conclusion follow.
C. CIRCUMSTANCES OF THE OFFENCE
[17] The incident giving rise to the charges occurred on October 3, 2018. At that time, Kamii Parker-Ford was 19 years old and his younger brother, Jai, was 15. That afternoon, the Parker-Ford brothers along with two other male friends, were in a car being driven by Kamii’s girlfriend, Ms. Pedro. They stopped at a convenience store in a plaza at 3585 Lawrence Avenue East in Toronto. The four young men went into the store, while Ms. Pedro waited in the car, and were looking around as the store clerk (Lisa Yang) was serving other customers. Ms. Yang was concerned the four youths were intent on stealing and told them to leave. Jai was angry and began to give Ms. Yang “a hard time.” Another customer in the store, Mr. Bonnell, intervened. He recognized Jai from a confrontation they had had in that store about one month earlier. Mr. Bonnell stated, “You’re young. What’s your problem? You guys have a long life to live.” This was perceived by the young men to be threatening and there was a physical altercation involving at least Jai and Mr. Bonnell. There is no suggestion that Kamii Parker-Ford was involved in the physical altercation, which resulted in the laceration inside Mr. Bonnell’s mouth.
[18] The four males left the store and went to the waiting car. Kamii Parker-Ford retrieved a car snow brush from the vehicle, and all four males went back into the store. Inside the store, Kamii Parker-Ford caused a disturbance by yelling and swearing at Mr. Bonnell. He and the other three youths proceeded to trash the store, pulling things off the shelves and throwing them on the ground. They then left the store and walked towards a group of onlookers who had heard the commotion inside the store. One of those onlookers, Ms. Biggard, began to film them on her cellphone. This angered Jai who told her she had no right to film them. When she did not stop, he grabbed at her and tried to take her phone away from her. During that struggle, she fell to the pavement. Ultimately, Jai was successful in taking her phone; it was never found.
[19] Another onlooker, Paul Morton, came to the aid of Ms. Biggard, who at that point was lying on the pavement and still struggling with Jai Parker-Ford. Mr. Morton grabbed Jai and tried to pull him away from Ms. Biggard. At that point, Kamii Parker-Ford entered the fray. He attacked Mr. Morton, punching him repeatedly in the head and kicking him. After this altercation, which lasted a very short time, the four males fled to the waiting car and were driven away by Ms. Pedro.
[20] Mr. Morton reported that, as a result of this assault, he continues to experience pain, particularly in the neck area, for which he is seeing a neurologist. Mr. Morton believes this pain is something he may have to live with for the rest of his life.
D. CIRCUMSTANCES OF THE OFFENDER
[21] Kamii Parker-Ford was born on Sept 24, 1998. He just recently turned 22 years old and was 19 at the time of the offence. He has two brothers: one older and one (Jai) four years younger. From the age of 11 or 12, he was raised solely by his mother, who often worked two or three jobs to support her family. As a younger child, Mr. Parker-Ford witnessed his father physically assault his mother on many occasions. His father had a criminal record for drug dealing, and ultimately was shot and killed in 2011.
[22] Mr. Parker-Ford completed Grade 12 with excellent marks, between 70-80%. He took a year off to save money, working at a variety of jobs. He then enrolled at a community college studying business administration, while continuing to work part-time. He was still in college at the time of his initial sentencing hearing.
[23] He has no criminal record.
[24] Mr. Parker-Ford has been in a stable relationship with his current girlfriend for several years. She has known him since he was 13 years old. She is also a community college student. She is supportive of him, appears to be a person of good character, and is regarded by everyone to be a good influence.
E. AGGRAVATING FACTORS
[25] The person Mr. Parker-Ford attacked and assaulted was a Good Samaritan who came to the aid of a woman being attacked by Mr. Parker-Ford’s younger brother. The attack, although brief, was violent, including seven punches and a number of kicks. These are aggravating factors. It is also an aggravating factor that this was preceded by a “swarming” type incident, in which four young men entered a store, acted in concert in a violent manner, and did considerable damage. The fact that the victim of the assault continues to experience adverse consequences is also aggravating. Finally, I note that Mr. Parker-Ford armed himself before entering the store, which is aggravating, although it must immediately be noted that the “weapon” in question was a snow removal brush and that he did not hit anybody with it.
F. MITIGATING FACTORS
[26] Mr. Parker-Ford is a young first-offender, a significant mitigating factor.
[27] He had a difficult childhood, witnessing his father assault his mother, and being himself a victim of severe physical discipline from his father. Then, when he was only 12, his father was murdered. It is very much to his credit that, notwithstanding this trauma, he completed high school with high standing, went on to college, and has been a hard-working, productive member of society.
[28] Mr. Parker-Ford entered a guilty plea to the charges, an indication of remorse. He also went further than that, explaining his motivation in a touching personal statement to the court. Mr. Parker-Ford himself, and other people interviewed by the author of the pre-sentence report noted that since his father’s death he has been very protective of his younger brother. It is important to note that he did not enter into the fray outside the store until Mr. Morton went after Mr. Parker-Ford’s younger brother. Needless to say, this does not excuse his assault on Mr. Morton, but it does provide some explanation for behaviour that appears to be wholly out of character.
[29] In his letter to the court, which he read at the time of sentencing, Mr. Parker-Ford showed considerable insight and maturity with respect to his own behaviour. He apologized to all persons affected by his conduct and took full responsibility for his actions. He explained that he was being protective of his brother, but accepted that he behaved inappropriately. He acknowledged that the right thing to do was to pull his little brother out of that situation, rather than to respond the way he did in anger. He stated that he was embarrassed by his own behaviour and realized that he had failed as a big brother by being a poor role model. Mr. Parker-Ford also said that this incident has been a turning point in his life and that he knew he had to do something about his anger issues. Before the sentencing process, he had already sought out anger management therapy and had completed six sessions by the time the pre-sentence report was prepared. His counsellor in that program spoke positively as to his progress. His girlfriend also commented on the positive change in his conduct. The trial judge, who saw and heard Mr. Parker-Ford read the letter in the courtroom, described herself as being touched by it, and found Mr. Parker-Ford to be genuinely remorseful for his actions. After hearing Mr. Parker-Ford, the trial Crown also recognized his sincerity and advised the trial judge that he was still seeking a custodial term, but that it should be something less than the 150 days he had previously proposed.
[30] The pre-sentence report was very positive. The author noted that every collateral source he sought out when preparing the report had positive things to say about Mr. Parker-Ford, “such as caring, hard-working, responsible and as someone who consistently cares for his family’s well-being.”[^3]
E. APPROPRIATE SENTENCE
[31] At this point, the Crown no longer seeks a custodial sentence. Rather, essentially, the Crown now recommends the sentence proposed by defence counsel at trial (a suspended sentence and a period of probation), whereas defence counsel asks that a conditional discharge be granted, with the same terms imposed by the trial judge. There is no issue with respect to those terms. The only substantive difference between the Crown and the defence before me is that the Crown maintains that Mr. Parker-Ford deserves to have a criminal record as a result of this incident. The Crown asserts that “[t]he best way to address deterrence and denunciation is to actually give someone a criminal record” as this will serve as “a daily reminder” of their crime and “will interfere with their life in a meaningful way.”[^4]
[32] It is not disputed that a conditional discharge is an available disposition in this case provided the test under s. 730(1) of the Criminal Code is met. This requires the court to be satisfied that such a disposition is: (1) in the best interests of the accused; and (2) not contrary to the public interest.
[33] The requirement that a discharge be in the best interests of the accused involves a determination that the goals of rehabilitation and individual deterrence of the offender can be achieved without imposing a criminal conviction. As stated by the Ontario Court of Appeal in R. v. Sanchez-Pino:
I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centers, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions.[^5]
[34] In this case, the offender is a young man with no criminal record. He appears to be of good character. His conduct leading to the conviction was impulsive and not part of his usual pattern of behaviour. He has shown genuine remorse and has identified his anger issues as something he needs to manage in the future. He took proactive steps to begin anger management counselling shortly after the offence and did not need a court order forcing him to do so. He is amenable to the direction of the court and committed to continuing this therapy, while at the same time completing his education.
[35] The Crown submits that I should disregard any potential impact a criminal record might have on his future because there is no evidence before me that he aspires to any career path for which a record would be a problem, nor are they any particular personal circumstances to support such a conclusion. I disagree. A criminal record carries with it considerable stigma. It can be a potential problem for any type of career or job, not just for those for which a criminal record is a complete bar. It can be a significant obstacle for any kind of business Mr. Parker-Ford might be involved in upon completing his business degree. It is also an impediment for many volunteer activities and for travel in some areas. Mr. Parker-Ford is only 22 years old. At this point, he cannot be expected to know how or where his personal and professional life will take him in the future. One thing that can be sure, however, is that a criminal record will be a restriction for him. The Crown cannot have it both ways. On the one hand, Crown counsel argues that there is no evidence of any significant impact of the criminal record on Mr. Parker-Ford; on the other hand, she submits that a criminal record is required as a deterrent to others and as a daily reminder to Mr. Parker-Ford of his wrongdoing because of its affect on his life. I reject the notion that Mr. Parker-Ford needs to be punished in this way to achieve the goals of rehabilitation and specific deterrence. The far superior path to his rehabilitation is learning to control his temper, finishing his education, finding meaningful employment, and surrounding himself with positive role models. He is already doing that, and will continue to do that during the probation period. He does not need to have a criminal record to achieve any of these goals. On the contrary, a criminal record is more likely to impede his rehabilitation than to advance it. He has learnt a valuable lesson from this experience. That is sufficient deterrence. Thus, I find that the first part of the test is met and that a discharge would be in the best interests of the offender.
[36] Before granting a discharge I must also be satisfied that it would not be contrary to the public interest to do so. Again, the decision in Sanchez-Pino provides guidance as to the application of this second part of the test dealing with the public interest, as follows:
It must not be “contrary to the public interest” to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence – a standard part of the criteria for sentencing.[^6]
[37] The sentencing judge must therefore be mindful of the goals of denunciation and general deterrence. Further, there may be cases where granting a discharge would be viewed by fair-minded and informed members of the public[^7] to be so inappropriate as to bring the administration of justice into disrepute. I do not see this case as falling into either category. The Court of Appeal in Sanchez-Pino emphasized the individualized nature of sentencing and the broad discretion to be exercised, taking all of the surrounding circumstances into account. The Court held:
... In some cases the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender.
To attempt more specific delineation would be unwise, and might serve to fetter what I conceive to be a wide, albeit judicial, discretion vested in the trial Court. That Court must consider all of the circumstances of the accused, and the nature and circumstances of the offence, against the background of proper law enforcement in the community, and the general criteria that I have mentioned.[^8]
[38] I would not characterize Mr. Parker-Ford’s offences as trivial. However, conditional discharges are not reserved for offences of a trivial nature. His offences were violent. This can often be a barrier to obtaining a discharge. However, conditional sentences are not reserved for non-violent crimes. In R. v. Wood,[^9] the Ontario Court of Appeal held that a conditional discharge was not appropriate in the case before it of a 20-year-old aspiring hockey player with no criminal record who had committed a violent assault causing serious injuries. However, in a brief six-paragraph oral judgment, the Court was nevertheless careful to note that there would be some cases for which a discharge could be appropriate, stating (at para 4):
It is our view that in cases of violence resulting in injury the requirement of general deterrence to the public militates, in almost every case, against the granting of a conditional discharge, notwithstanding the considerations personal to the accused.
[Emphasis added.]
[39] In more recent years, there are many examples in which the particular circumstances of a case have caused judges to grant discharges, even where the underlying offences were acts of violence. For example:
- R. v. McGee, 2011 ONSC 1195: a 19-year-old first offender, while very drunk, punched a vulnerable cab driver in the face in a two-on-one altercation (but he had no record, was a good student, had a supportive family, and was getting treatment for his alcohol abuse)
- R. v. Tran, [2015] O.J. No. 7144: a young female first offender, while drunk, assaulted another woman with a beer bottle causing two wounds requiring a total of 7 stitches (but she just completed college, had a young baby, showed remorse, and would have difficulty in her career as a registered massage therapist if she had a criminal record)
- R. v. Cruz, 2018 ONCJ 8: a 32-year-old father of two punched another man in a bar, causing serious injuries (but he was previously of good character, had already undertaken anger management counselling by the time of trial, and would be prevented from volunteering for activities in his children’s school if he had a criminal record)
- R. v. Huezo-Contreras, 2018 ONCJ 63: an 18-year-old first offender started a fist fight with another man, causing severe injuries, including rendering him unconscious (but he showed remorse, was previously of good character, had excellent references, was a full-time student aspiring to be a physiotherapist, and had completed substantial community service hours)
- R. v. Fensom, 2016 ONSC 4709: a bouncer at a nightclub used far more force than was necessary in ejecting a drunk and disorderly patron from the club, including kicking him with enough force to break a rib (but there was considerable provocation from the complainant and his friends, the offender was previously of good character and engaged in a number of charitable activities)
- R. v. Peterson, 2018 ONSC 1373: a bouncer at a strip club sucker-punched a drunk patron who was already leaving, but who had previously had a physical altercation with another employee, causing redness and swelling (but he expressed remorse, was previously of good character, and was by the time of sentencing employed as a plumber which would be in jeopardy if he had a criminal record)
[40] Clearly, general deterrence and denunciation are relevant factors in sentencing and I am required to take them into account. However, I do not consider them to be overpowering factors on the facts of this case. In this regard, I am mindful of the words of Chief Justice McLachlan in R. v. Nur[^10] when dealing with whether mandatory sentences for possession of a firearm were rationally connected to the government objective of deterring others from committing such offences. The Chief Justice (writing for the majority) found a rational connection between mandatory minimum sentences of imprisonment and the sentencing objectives of denunciation and retribution, but noted the “frailty” of such a connection between deterrence and mandatory minimums. The Chief Justice stated (at paras 113-114):
The government has not established that mandatory minimum terms of imprisonment act as a deterrent against gun-related crimes. Doubts concerning the effectiveness of incarceration as a deterrent have been longstanding. Sentencing Reform: A Canadian Approach — Report of The Canadian Sentencing Commission (1987), concludes as follows:
a) Even if there seems to be little empirical foundation to the deterrent efficacy of legal sanctions, the assertion that the presence of some level of legal sanctions has no deterrent effects whatsoever, has no justification. The weight of the evidence and the exercise of common sense favour the assertion that, taken together, legal sanctions have an overall deterrent effect which is difficult to evaluate precisely.
b) The proper level at which to express strong reservations about the deterrence efficacy of legal sanctions is in their usage to produce particular effects with regard to a specific offence. For instance, in a recent report on impaired driving published by the Department of Justice, Donelson asserts that “law-based, punitive measures alone cannot produce large, sustained reductions in the magnitude of the problem” (Donelson, 1985; 221-222). Similarly, it is extremely doubtful that an exemplary sentence imposed in a particular case can have any perceptible effect in deterring potential offenders.
c) The old principle that it is more the certainty than the severity of punishment which is likely to produce a deterrent effect has not been invalidated by empirical research. In his extensive review of studies on deterrence, Beyleveld (1980; 306) concluded that “recorded offence rates do not vary inversely with the severity of penalties (usually measured by the length of imprisonment)” and that “inverse relations between crime and severity (when found) are usually smaller than inverse crime-certainty relations”. [Emphasis added; pp. 136-37.]
Empirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes: see, e.g., A. N. Doob and C. M. Webster, “Sentence Severity and Crime: Accepting the Null Hypothesis” (2003), 30 Crime & Just. 143; M. Tonry, “The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings” (2009), 38 Crime & Just. 65. The empirical evidence “is clear: mandatory minimum sentences do not deter more than less harsh, proportionate, sentences” (A. N. Doob and C. Cesaroni, “The Political Attractiveness of Mandatory Minimum Sentences” (2001), 39 Osgoode Hall L.J. 287, at p. 291).
[41] From these precedents I conclude that in sentencing for crimes of violence, general deterrence, denunciation, and retribution tend to be more important factors. Often, these factors will override other factors that might support the appropriateness of a conditional discharge. However, the fact that an offence was a violent one, standing alone, does not render a conditional discharge unfit.
[42] Mr. Parker-Ford made a serious mistake in engaging in the criminal acts he did on that fateful afternoon in 2018. He has admitted that himself. He has apologized. He has taken meaningful steps to ensure he does not lose his temper and common sense in that manner again. He has learned a lesson, and there is no reason to believe he will reoffend. It is not in his best interests to saddle him with a criminal record that could impede his future career and personal aspirations. Before this incident, and since this incident, he has been on a good path – one that is likely to lead him to a productive, law-abiding life. It is not in his best interests to put obstacles in that path, nor is it in the broader public interest to do so. The public interest is best served by ensuring that offenders are directed away from conduct that endangers our community and towards pro-social behaviour. Ephemeral concepts such as “denunciation” and “general deterrence” are clearly not irrelevant to sentencing, but they have little direct impact in concrete cases such as this one. There is no notional person who will deliberately commit an offence he would not otherwise commit just because Mr. Parker-Ford did not get a criminal record for his few minutes of violent behaviour that day. Compassion has a legitimate and important role in sentencing generally, and particularly in this case.
[43] Accordingly, in my view, the appropriate disposition in this case is a conditional discharge with all the same terms as imposed by the trial judge. That sentence therefore remains in place.
MOLLOY J.
Released: October 1, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KAMII PARKER-FORD
Defendant/Respondent
REASONS FOR JUDGMENT
Molloy J.
Released: October 1, 2020
[^1]: R. v. Grant, 2016 ONCA 639, 351 O.A.C. 345; see also R. v. Bulland, 2020 ONCA 318 at paras. 6-7. [^2]: R. v. Gabriel, 2015 QCCA 1391, [2015] O.J. No. 8142; R. v. Keough, 2012 ABCA 14, 57 Alta. L.R. (5th) 68. [^3]: Pre-Sentence Report, at p. 7. [^4]: Crown factum, at para. 35. [^5]: R. v. Sanchez-Pino, 1973 794 (ON CA), [1973] 2 O.R. 314, 11 C.C.C. (2d) 53 (C.A.), at para. 17. [^6]: Ibid. [^7]: See R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328. [^8]: Sanchez-Pino, at paras. 18–19. [^9]: R. v. Wood, 1975 1410 (ON CA), [1975] O.J. No. 290, 24 C.C.C. (2d) 79 (C.A.). [^10]: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773