COURT FILE NO.: CR-21-40000059-00AP
DATE: 20220729
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
GARTH SMART-JAMES
Defendant/Appellant
Matthew Shumka, for the Crown/Respondent
Mark Halfyard, for the Defendant/Appellant
HEARD: June 15, 2022 via videoconference
judgment on appeal against sentence
MR. JUSTICE P. CAMPBELL
Introduction
[1] This is an appeal against a suspended sentence with 18 months of probation imposed following the appellant’s plea of guilty to counts of assault, being unlawfully in a dwelling house, and criminal harassment, contrary to ss. 266, 349 (1) and 264(2)(d) of the Criminal Code. The appellant submits that the sentencing judge erred in declining to grant him a conditional discharge and in imposing an 18-month term of probation, six months longer than the term proposed by Crown counsel.
[2] The appeal is allowed only to the extent of substituting a term of 12 months for the 18-month probationary period imposed at trial. The decision to attach this order to a suspended sentence rather than a conditional discharge is affirmed.
Factual background
[3] The appellant, age 26 at the time, and the female victim had been in an intimate relationship for three years, though they had separate residences. On May 28, 2018, after a prolonged argument at her apartment, extending from the evening before, the appellant became angry when the victim said she was going out. He pushed her onto her bed and pinned her there as she screamed. Her screams were heard by neighbours. The victim told the appellant that their relationship was over after this episode, but he continued to contact her by telephone, email, text messages and a note slipped under her apartment door. On June 11, he came to her apartment and, with the aid of a locksmith, changed the lock to gain entry so he could retrieve his belongings. The appellant left the apartment but returned later and broke the door chain in the absence of the victim.
[4] The victim provided an unchallenged statement describing the impact of the offences on her which included emotional and psychological trauma necessitating therapy, for which she had paid $1000, a continuing susceptibility to scenes of domestic violence on television, and a sense that she is not safe in her home, which prompts her to check her locks and to call friends to tell them she has arrived home safely.
[5] Very positive evidence was led as to the personal background of the appellant. He was at the time of sentencing fully employed as a librarian and planning to enroll in graduate studies in that area. He had, without any legal requirement, undertaken therapy and anger management. He was studying gender equality in a university program and volunteering at a community youth centre.
Positions of the parties at sentencing
[6] Crown counsel advised the sentencing judge that he had discussed the Crown’s position on the guilty plea at a judicial pretrial (JPT). He said it would be an “open position” in which he would request a suspended sentence with 12 months of probation and the conditions that the appellant report to a probation officer and attend a domestic violence program as directed while refraining from contact with the victim and continuing with his counselling, which would be monitored by the probation officer. He also requested an order for production of a DNA sample and a five-year weapons prohibition order.
[7] Counsel for the appellant at trial (who was not counsel on the appeal) asked the sentencing judge to impose a conditional discharge. Citing his educational and employment history, his status as a first offender, his efforts at rehabilitation, the complete dissolution of his relationship with the complainant, and his guilty plea, offered at a point when the courts were struggling to cope with their caseloads during the Covid-19 pandemic, he argued that a discharge was in the appellant’s interests and not contrary to the interests of the public – the statutory test under s. 730 of the Criminal Code.
[8] The appellant also provided a rather lengthy oral account of himself to the judge in which he apologized and emphasized his commitment to remaining a responsible and productive member of the community, his intention to continue counselling, his understanding of the wrong he had done to the victim, and his determination not to behave in such a manner again.
Reasons for Sentence
[9] The sentencing judge indicated that he was attempting to arrive at a proportional sentence in light of the gravity of the offence and the appellant’s degree of moral responsibility for it, an invocation of the “fundamental principle” of sentencing in s. 718.1 of the Criminal Code. He characterized the “pattern of invasion of privacy and the violence that comes along with that, as well as actual violence in terms of the assault over a protracted period of time” as the most aggravating features of the case. The impact on the victim, which he described as “very deep”, was also an aggravating factor. He viewed the facts of the case, in total, as “quite aggravating”.
[10] The sentencing judge accepted as mitigating factors the absence of a criminal record, the plea of guilty, the effort devoted to therapy, the study of gender equality, and the appellant’s full-time employment. He deemed his prospects for rehabilitation to be “really quite good” and the material presented on his behalf to be “quite impressive”.
[11] In passing sentence, the judge addressed the appellant directly:
I think that it probably is in your interest to receive a form of discharge. But I can’t find myself in a position to find that it would not be contrary to the public interest to discharge you. Okay? The features of aggravation with respect to your conduct are just too grave and this is an area of domestic violence which the courts take very seriously.
If it helps you at all, the sentence that I am going to give you, from my perspective, it doesn’t include specific deterrence. Because I think you have been specifically deterred. I don’t think you will behave in this manner again.
[12] The sentencing judge concluded with a finding that “the conduct though itself is so serious that I can’t find my way to form a discharge as a sentence because it doesn’t meet the proportionality principle. All right? It’s just it does not adequately reflect the impact”.
[13] The trial judge then imposed sentence in the following terms:
It will be a suspended sentence in this matter. I am going to place you on probation for a period of 18 months. These will be the terms of your probation. You will report within 48 hours by telephone, and the number will be in your order, to your probation officer and at such other times as directed by your probation officer. You are to have no contact directly or indirectly with [the victim]. You are not to be within 100 metres of any place you know her to live, work, go to school or be. You are to possess no weapons as defined by the Criminal Code. You are to attend counselling as directed by your probation officer.
I am going to direct that a copy of all the exhibits of this, on the sentencing hearing, be provided to the probation officer. I think they will be impressed with your progress and they’ll make an assessment with respect to what further counselling need occur. If more counselling is deemed to be appropriate, you will sign the necessary releases to your probation officer to follow your progress in that counselling.
[14] The sentencing judge also imposed a DNA order and the requested weapons prohibition.
Ground 1: Did the Sentencing Judge Err in Principle in Rejecting a Conditional Discharge?
[15] The appellant submits that the sentencing judge should have granted him a conditional discharge, based on his progress toward rehabilitation and the potentially negative effects of a conviction on his future. He argues that the sentencing judge erred in principle in his treatment of the issue by failing to address, as a counterweight to the aggravating facts of the case, the impact on the appellant of the conviction he chose to impose. He submits that the sentencing decision demanded explicit consideration of these effects and of the objectives of rehabilitation and restraint. These two principles of sentencing, which imply limits on the punitive goals of the sentencing process – deterrence, denunciation, and retribution – are captured in ss. 718(d) and 718.2(c-e) of the Criminal Code. They reflect recognition that where the punitive features of a sentence may extinguish a meaningful chance of rehabilitation, they are unlikely to serve the larger goals of the justice system in protecting the public.
[16] The Court of Appeal for Ontario applied the restraint principle, with some helpful commentary, in R. v. Batisse, 2009 ONCA 114, 241 C.C.C. (3d) 491, at paras. 32-34:
The principle of restraint operates in three ways in the present case. First, it is an important consideration because the appellant was a first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest, (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 at p. 545.
Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas, 2006 CanLII 2610 (ON CA), [2006] O.J. No. 364, 207 O.A.C. 226 (C.A.), at para. 5:
[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.
In serious cases and cases involving violence, rehabilitation alone is not the determinative factor—general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, [2005] O.J. No. 862, 2005 CanLII 5668 (C.A.), at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.
[17] Reading the reasons of the sentencing judge in their entirety, and in light of the submissions before him, I am not persuaded by the argument that he failed to consider, or was indifferent to, the restraint principle and its relevance to the sentencing of a first offender. For a judge sitting daily in the Ontario Court of Justice, the implications of a choice between a discharge under s. 730 of the Criminal Code, and the entry of a formal conviction, are as well understood as any aspect of criminal law. A judge, such as the one in this case, hearing a submission in favour of a discharge, knows very well that they are being asked to weigh the factors which tell in favour of registering a conviction, with the reputational weight that carries and the legal and practical consequences that may follow at job interviews and border crossings, against a plea for leniency as a boost to rehabilitation.
[18] I believe that counsel for the appellant, who asked for a discharge and produced evidence to make it a plausible position, but did not actually mention the inimical consequences that might result from a conviction, recognized the same thing. He did not argue that his client’s promising future might meet some impediments because he would have to acknowledge a criminal record in certain settings, at least until he could have it suspended under the Criminal Records Act, R.S.C. 1985, c. C-47. I take this to be because he knew the judge would understand that this concern lay at the heart of his entire argument – that this offender, for this offence, should not bear the stigma and the collateral consequences that follow from a conviction. Not everything needs to be made explicit for a judge who routinely weighs these considerations in sentencing hearings.
[19] I also infer from his reasons that the sentencing judge was alive to the significant choice he was being asked to make. He made a series of findings that highlighted the difficulty of that choice: The appellant was, on the one hand, largely rehabilitated, did not need specific deterrence, had no criminal record, and had a bright future. On the other hand, he had committed a series of offences, over a two-week period, that caused enduring trauma to the victim and could reasonably have led to a prison term. The judge expressly told the appellant that he recognized it was “probably in [his] interest to receive a form of discharge”. In this case, that can only amount to a recognition that a conviction would carry the kinds of consequences that a discharge could avoid. The judge then continued with a phrase I consider telling: “I can’t find myself in a position to find that it would not be contrary to the public interest to discharge you”. He would repeat that formulation later: “[T]he conduct is so serious that I can’t find any way to form a discharge as a sentence because it doesn’t meet the proportionality principle… it does not adequately reflect the impact”.
[20] These are, in my reading of them, the words of a judge who knows very well how a conviction might work against the personal interests of the defendant, who appreciates the factors that elevate the seriousness of the crimes, and who was entirely willing, if he could do so in a manner consistent with all the principles of sentencing, to spare the defendant the damaging effects of a conviction by imposing a discharge. He ultimately concluded that the “fundamental” and supervening principle in s. 718.1, that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”, resolved what he regarded as a close call.
[21] It is conceded that a judge confronting this kind of case in that way, and reaching a sentence that is not unfit, is not to be reversed on appeal by a judge who simply takes a different view of the appropriate balance: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras. 39-41.
[22] Counsel for the appellant supplemented this argument with a suggestion of error on the part of the sentencing judge in not considering that a discharge “is no more or less of a deterrent than a suspended sentence”.
[23] In support of this argument’s premise, he relied mainly on R. v. Pera, 2016 ONSC 2800, where Hill J., surveying a range of authorities on discharges and the application of s. 730, said, “a suspended sentence is not necessarily a greater deterrent to others than a conditional discharge”, citing R. v. Cheung, 1976 CarswellOnt 1307. The thrust of this argument was that discharges may have a deterrent effect and that the sentencing judge did not realize, or give any weight to, that reality.
[24] This argument, I think, makes too much of Hill J.’s observation. A judge who thinks that a discharge has no deterrent effect, and that it sends a message of condonation rather than condemnation, certainly errs. There are undoubtedly cases where a discharge, properly interpreted as a finding of criminal guilt, will have as sharp a deterrent effect as a conviction with a suspended sentence. The sentencing judge was not invited to characterize the deterrent effect of a discharge any differently and did not do so on my reading of his judgment. He was not wrong, in my opinion, to view discharges and suspended sentences as occupying different positions on a scale of reproach, which is the consideration that ultimately shaped his view of proportionality.
[25] One way of looking at Parliament’s intention in enacting s. 730 is that it wanted to find a way for judges to signal that certain crimes were of lower gravity than most others. A judge need not, and should not, impose a sentence that places a relatively serious crime, with significant aggravating features, in a category intended to communicate the opposite. This was the way the sentencing judge perceived the choice before him, and it did not imply a diminishment of the potential deterrent effect of a discharge. The defendant in this case, and defendants broadly, will usually prefer a discharge to a conviction because of what the former says about how far outside the bounds of lawful and acceptable conduct they have stepped: R. v. Sanchez-Pino, 1973 CanLII 794 (ON CA), [1973] 2 O.R. 314 (Ont. C.A.); R. v. Shah, 2020 ONSC 6487, at para.16.
[26] I close my discussion of this ground with the observation that if I had concluded that the sentencing judge’s approach to this case was tainted by an error of analysis, requiring me to consider the propriety of the penalty without deference, I would not have reached a different result. I believe a suspended sentence, rather than a discharge was appropriate for the appellant. I say this despite his considerable personal attainments, both generally and in respect of the attitudes that lay behind his offences. The three offences were not mitigated by impulsiveness or a sudden swell of emotion but reflected calculation and preparation. They were separate violations of the victim’s physical integrity, her psychological security, and her personal privacy. Taken together, they merited the recording of convictions.
Ground 2: Did the Sentencing Judge Err in Imposing a Longer Term of Probation than Proposed by the Crown?
[27] The Crown asked the judge to register a conviction, suspend the passing of sentence, and impose a 12-month term of probation with conditions. He said that he had communicated this position in a judicial pretrial. Defence counsel did not make specific submissions on the length of the probation that would accompany the conditional discharge he was requesting.
[28] With no further input from counsel, the sentencing judge fixed the term of probation at 18 months. He did not ask for submissions on the length of the term, acknowledge that it was a departure from the Crown position, or provide reasons for the period he chose. The appellant submits that failing to notify the parties of an intention to impose a sanction beyond that requested by the Crown was an error in principle permitting the issue to be revisited on appeal. He asks that the 12-month term proposed by the Crown be substituted for the 18 months imposed at trial.
[29] The appellant is about nine months into his term of probation, so a variation to the duration of the order will have some practical effect. His counsel notes that the availability of the record suspension that the appellant will one day likely apply for, is pegged by statute to the completion date of the probation: Criminal Records Act, s. 4(1)(b). The implications of the order’s duration are not negligible even if, looked at broadly, they are not great.
[30] In support of his submission, the appellant’s counsel relies on the judgment of the Court of Appeal for Ontario in R. v. Blake-Samuels, 2021 ONCA 77, 69 C.R. (7th) 274, which held that a judge should give notice to the parties and invite submissions before imposing a sentence beyond that requested by the Crown, even when the request does not take the form of a typical “joint submission”. In that case, where the Crown had sought a four-year sentence for firearms offences and the judge had imposed five years without notice or explanation, MacPherson J.A. said, at paras. 30-34, 39:
In my view, if a sentencing judge intends to exceed the Crown’s position on sentence, the judge is required to notify counsel, provide an opportunity for further submissions, and provide clear and cogent reasons for imposing a sentence beyond the Crown’s position.
I will deal with the appellant’s issues together as they all bear on one another.
Fundamental fairness requires the parties to be permitted to make further submissions if the sentencing judge intends to exceed the sentence proposed by the Crown and clear and cogent reasons are required if the judge, having heard additional submissions, still believes it necessary to go beyond the Crown’s position.
More than a recommendation that sentencing judges follow this procedure is required. It is not appropriate to deny procedural fairness during the sentencing process with the expectation that any error can be cured on appeal. It is contrary to the commitment to access to justice, contrary to natural justice, and contrary to a commitment to judicial economy to permit sentencing judges to go beyond counsel submissions and force offenders to rely on the appeal process to ensure fairness. Fairness should be afforded at all steps.
In this case, the failure to notify counsel of a possible sentence beyond the Crown’s proposal was compounded by the failure to provide reasons why the additional time was imposed. The reasons for sentence do not reveal why the principles of sentencing could only be satisfied with a longer sentence than that proposed.
Where, as here, a sentencing judge makes an error in principle that has an impact on the sentence “an appellate court must perform its own sentencing analysis to determine a fit sentence”: Lacasse, at para. 43. This means that the appellate court will “apply the principles of sentencing afresh to the facts, without deference to the existing sentence, even if that sentence falls within the applicable range”: R. v. Friesen, 2020 SCC 9, at para. 27. [emphasis added]
[31] This judgment was recently applied by the Court of Appeal in R. v. Bagheri, 2022 ONCA 357, at paras. 15-18.
[32] The respondent notes that all the authorities the parties had located applying Blake-Samuels arose from the imposition by trial judges of longer custodial terms than the Crown had requested. It suggests that a probationary term gives rise to different considerations and should not require the same regime of notice to the parties, an invitation to make submissions and reasons for departing from the Crown’s position, as cases where months or years of imprisonment are at stake. The appellant disagrees and says that the underlying principles are the same – an order that shapes or circumscribes the daily existence of a defendant, for a lengthy period, should not be made longer or more onerous than the prosecutor proposes without alerting the person most affected to the need to argue in favour of what the prosecutor has requested.
[33] The appeal thus raises directly the question of whether a trial judge who is contemplating a probation order longer, more onerous, or more restrictive than the one proposed by the Crown should follow the three steps prescribed by Blake-Samuels before making such an order: notice to the defendant of the possibility that the judge may depart from the Crown’s position; an invitation to make submissions; and reasons for the imposition of a term beyond that proposed by the Crown.
[34] I believe that logic and policy favour the application of the Blake-Samuels analysis to the context of probation. I have several reasons.
[35] As to the lack of authority in this area, I note that both R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, and Blake-Samuels, which draws on the logic of Anthony-Cook, are relatively recent cases. It is not surprising that no defendant has felt sufficiently aggrieved by a probationary term or condition to mount an appeal when it was imposed without notice or a chance to make submissions. Such cases are likely to be relatively infrequent and appeals from then even less frequent.
[36] The Crown also argued that a probation order is an essentially different disposition from a prison sentence because its purpose is rehabilitative and its imposition discretionary: R. v. Proulx, 2000 SCC 5, [2005] 1 S.C.R. 27, at paras. 32-33. Thus, a departure from the Crown’s proposed term of probation should not require the same procedural protections as an elevated term of imprisonment.
[37] I do not consider this to be a convincing distinction. Courts should be wary of coercive or restrictive orders, which interfere with liberty for the purported good of the person whose liberty is affected. Probation orders often do a great deal of good, but they do so by telling people what they can and cannot do for up to three years of their lives: Criminal Code, s. 732.2(2)(b). Probation orders may dictate attendance at therapy sessions, abstention from alcohol, avoidance of individuals or classes of people, compelled labour in the form of community service, prohibitions on entering large geographic areas, confinement to one’s residence for much of each day, and even, exceptionally, the imposition of house arrest (though perhaps not in Ontario: see the survey of cases in R. v. Harvey-Pike, 2018 ABPC 266, at paras. 143-151, including R. v. Bankey, 2010 ONCA 799).
[38] A defendant facing the possibility of probation, whatever its objective, may wish to make submissions and may not regard such an order as either benign or likely to achieve its rehabilitative objective. Some defendants may regard years of probation as less desirable and more restrictive than a month in prison. Moreover, even carceral sentences may be imposed with rehabilitative goals in mind. Defendants are sometimes sent to prison in hopes of keeping them from alcohol or drugs, or because it will give them a chance to receive specialized treatment, or even because it is a place for a homeless person to spend the winter. The intentions of the Crown in proposing a probation order, or of the judge in imposing it, cannot define the entitlement of the defendant to be heard on the subject.
[39] There are also practical reasons for requiring notice, submissions, and reasons if a judge is considering probationary terms more onerous than those proposed by the Crown. A term of imprisonment places a defendant in a carceral setting where, for a fixed time, they have few options and can take few initiatives. Probation orders, in contrast, can dictate important aspects of a person’s functioning in society for years. The probationer’s daily life has to be shaped around and fitted to the requirements and restrictions of the probation order. This reality tells firmly in favour of listening to what the defendant has to say on the matter, simply to make an order that can be fully complied with and serve its intended purpose.
[40] The value of hearing from a defendant on an order that is contemplated by a judge but has not been discussed between the Crown and the defence is obvious. If probation may include community service, it would be valuable to know that the defendant is already an active volunteer. If it is to include a curfew, it would be helpful to know that the defendant sometimes works night shifts or leads a group of stargazers. If it is to run for 18 months instead of a year, it would be helpful to know that the defendant has been accepted at a foreign university beginning in the fall of the next year. Examples of the value of hearing from the defendant about unanticipated terms in a probation order (including its length) could be multiplied. If an intrusive term is imposed unexpectedly and without notice, it runs the risk of creating a needless injustice and even an impediment to rehabilitation.
[41] A further reason for requiring trial judges to permit a defendant to address proposed terms of probation beyond those sought by the Crown goes back to the reasoning in Anthony-Cook which infuses the law in this area. Joint submissions between the Crown and defence, addressed in Anthony-Cook, place in the sharpest relief the concern for the integrity and the effectiveness of the plea resolution process. Justice Moldaver stressed that there are benefits for accused persons, the Crown, and the justice system at large when guilty pleas are entered and trials avoided. He recognized that this depends on a reasonable level of confidence that the parties’ agreements will be given effect by trial judges and departures from them will occur only when the public interest demands it and the parties have been given the chance to address the departure explicitly, with notice of the judge’s concerns: Anthony-Cook, at paras. 35-47.
[42] Blake-Samuels adapted Anthony-Cook to cases where a judge contemplates imposing a harsher sentence than the one demanded by the Crown, without a joint submission. I am the of the view that this refinement of the law should extend to cases where more onerous terms of probation are contemplated by a judge at sentencing. My reasons for this conclusion include concerns for the integrity and efficacy of the plea resolution process identified in Anthony-Cook. The clearest, most straightforward result of successful plea resolution discussions is a joint submission under which the defendant agrees to plead guilty, and each aspect of the sentence is agreed upon for presentation as a package to the trial judge. Sometimes, however, successful plea discussions produce a less comprehensive agreement. For example, the parties may agree on a term of custody but disagree on a weapons prohibition, a restitution order, or a fine. They may agree on four conditions of a probation or conditional sentence order but not the fifth. And sometimes, they have reached an agreement that is very important to both sides’ interests but looks like the antithesis of a joint submission: They have agreed that the Crown will ask for a prison sentence no longer than a particular number of years and the defence will ask for less. This agreement may sometimes be even more refined – for example, the Crown will commit to asking for six to eight years and the defence will agree to ask for three to five. Agreements of this nature provide a measure of predictability for both parties and allow guilty pleas to be agreed upon, despite substantial disagreement on the appropriate outcome. They are important to the functioning of the plea resolution process.
[43] So, too, with probation. The conditions of probation may be an afterthought in some resolution discussions, but they may be a matter of real significance in others. There are defendants – including fully rehabilitated ones – who chafe at the existence of a probation order that governs their lives and stigmatizes them as a criminal. Such defendants care about the time they are under this form of state control. When they expect a particular duration or condition of probation because they know that is all the Crown is going to ask for, they may be resentful and feel betrayed by a longer or more restrictive order. Allowing defendants – as well as victims and counsel – to have confidence in an outcome contemplated between the parties as a just one helps, in my view, to instill confidence in the plea resolution process by participants in it and by members of the public touched by it.
[44] We do not know exactly what was said between counsel at the judicial pre-trial which Crown counsel indicated took place before the appellant’s guilty plea. The JPT did include, however, a statement by the Crown of its position and agreement that the submissions would be “open”, meaning that the defence was free to ask for a lesser punishment—presumably, in this case, the conditional discharge that was requested. I can reasonably infer from this record that the defendant entered his guilty plea with the understanding that the Crown would ask for a 12-month probation order. He also understood, from an open-court plea comprehension inquiry, conducted pursuant to s. 606(1.1) of the Criminal Code, that the judge was not bound by counsel’s positions.
[45] I believe that simple notions of procedural fairness tell in favour of judges inviting submissions when they contemplate imposing more onerous terms of probation. Being heard on matters that affect one’s interests is a basic feature of procedural fairness – almost its definition. Fairness was the foundation for the holding in Blake-Samuels (see para. 33). A defendant who can accept a year of probation but has some reason to resist a year and a half may not only help the judge reach a better decision if told that the longer term is being considered but will not feel surprised by a result that they did not contemplate in deciding to plead guilty. Contributions from defendants about matters affecting their personal interests make for decisions that are both more sound and more fair.
[46] This is not a complex or demanding obligation on a sentencing judge. It may be satisfied by no more than a comment from the judge during or after submissions such as “I’d like to hear from counsel on the proposed length of the probation. I’m considering a somewhat longer term”. Defence counsel may reply in a wide range of ways – leaving it up to the judge, noting that it was part of the give-and-take in the judicial pretrial, arguing that the defendant is already substantially rehabilitated, arguing that the defendant has been subject to bail conditions for a long time already, pointing out some anticipated event in the defendant’s life that will make a longer term awkward to comply with. The point is to allow a person who might have something to say on an issue to be heard on it.
[47] The expectation that a judge will not impose conditions beyond those requested by the Crown also contributes to the efficient conduct of judicial proceedings. If counsel can be confident that the sentencing judge is not going to impose a more onerous term than the Crown has asked for, they need not spend time in submissions justifying what is usually a routine and non-contentious aspect of a probation order. If they know that the judge will raise the issue, should it be troubling to the court, then fairness and economy will be served at the same time. Appeals on matters that could have been conclusively resolved at trial will be avoided.
[48] Blake-Samuels (at para. 39) and Bagheri (at para. 2) characterize a failure of a judge to notify the parties, invite submissions, and give reasons for a departure from the Crown’s position as an error in principle. While it seems possible that the sentencing judge in this case simply failed to note that the Crown’s request for probation included a proposed term of 12 months, and therefore decided on 18 months, the record before me reflects error in principle. This calls for a fresh analysis of that aspect of the sentence: Blake-Samuels at para. 39, citing Lacasse at para. 43, and R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 27.
[49] Crown counsel pointed out that s.732.2(3) of the Criminal Code permits a defendant to apply for a variation in a probation order including a reduction in its length. Noting the absence of any indication that such an application had been made by the appellant, he submitted that this weighed against varying the order on appeal.
[50] I do not regard this as a reason to maintain the 12-month term. The argument for relief in this case is that the sentencing judge made an error in principle at the original hearing. If that is so, as I have held, then it is not necessary or appropriate that he should be expected to rule on that argument as a condition for changing the length of the term. I agree with the opinion of Groberman J.A. for the British Columbia Court of Appeal in R. v. Etifier, 2009 BCCA 292, 246 C.C.C. (3d) 448, who said, at para. 8: “I am not convinced that section 732.2(3) of the Criminal Code ought to be seen as the sole remedy for an accused who alleges error in the imposition of a condition of probation”.
[51] Considering the substantial personal progress made by the appellant between the dates of the offence and the sentencing, and the evidence that this will continue, and recognizing that the parties conceded at trial and on appeal the propriety of a probation order, I am of the view that there is no reason for it to be longer than the 12 months sought by the Crown at trial.
[52] The appellant filed his own affidavit as fresh evidence on the appeal. It indicated that he continues to be steadily employed and to receive counselling. He has left his job as a librarian, concerned that a vulnerable sector check by his employer could expose his criminal record, and now works in the production of a podcast for chartered accountants. He is in a close relationship and expects to be married when his finances are in order and he and his girlfriend can afford a home. In general, the fresh evidence shows that the appellant remains on the path anticipated by the sentencing judge—he gives every sign of rehabilitation and does not require further personal deterrence. I did not find any error in principle respecting the entry of a conviction at trial and the parties are agreed that this would be a pre-condition to consideration of the fresh evidence as an independent ground of appeal. The affidavit reinforces my view that there is no reason for the probation order to extend beyond the year requested at trial.
[53] The appeal is, therefore, allowed. The suspended sentence on each count is upheld and the term of probation imposed at trial is varied to 12 months with the other conditions remaining in place along with the two ancillary orders.
Mr. Justice P. Campbell Superior Court of Justice
Released: July 29, 2022
COURT FILE NO.: CR-21-40000059-00AP
DATE: 20220729
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
GARTH SMART-JAMES
Defendant/Appellant
judgment on appeal against sentence
MR. JUSTICE P. CAMPBELL
Released: July 29, 2022