COURT FILE NO.: 20-A12250
DATE: 2022/01/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MATHIEU CODERRE
Appellant
Moiz M. Karimjee, for the Respondent
Michael Johnston and Ryan Durran, for the Appellant
HEARD: 2022-01-19
SUMMARY CONVICTION APPEAL
On Appeal from the decision of the Honourable Justice Peter Doody of the Ontario Court of Justice on April 27, 2021, at Ottawa, Ontario
MARANGER J.
[1] This was a Defence appeal of a sentence rendered by Justice Doody on April 27, 2021.
[2] On April 27, 2021 the appellant pled guilty to the offence of mischief under $5000 contrary to s. 430 of the Criminal Code of Canada.
[3] The matter proceeded as a contested sentencing hearing. Crown counsel took the position that the appropriate disposition should be a suspended sentence followed by 12 months of probation. Defence counsel sought a conditional discharge followed by 12 months of probation.
[4] The facts put before the presiding judge in support of the finding of guilty and in respect of the sentence were the following:
• On September 19, 2020 Ms. Graham parked her vehicle in the underground parking garage of her apartment building, she left the rear of her car out of the spot by several feet making it somewhat difficult for others to park.
• The appellant had the parking spot next to Ms. Graham’s.
• On September 22, 2020 the appellant did the following to Ms. Graham’s vehicle: he slashed all four of her tires, tore off the drivers side gas door, smeared white sauce and pasta in the front grill on the windshield and on the driver side window. Scratched the letters “move car” into the paint on the passenger doors. Smeared the windows with pasta sauce, including the words I am an idiot in the vehicles rear window.
• Ms. Graham was 87 years of age, the vehicle was her last vehicle. She owned it for nearly 30 years; the total monetary damage was estimated at $800.
• The appellant had no criminal record. He presented as a 26-year-old man suffering from depression, anxiety, and substance use disorder. His highest level of education was grade 11. At the time of the offence he was in treatment, in the month before the offence his identity had been stolen exacerbating his anxiety issues.
[5] In deciding to suspend the passing of sentence and place the appellant on probation in lieu of granting a discharge, Justice Doody provided the following reasons for doing so:
“First, this was a serious damage to property offence. I do not accept your lawyer’s submission that it’s on the less serious end; that the damage amounted to only some $800. As Crown counsel has pointed out, this wasn’t a one time lashing out or kicking of a car door or window as you sometimes hear. This was a matter of destroying this woman’s property by slashing all four of her tires and scratching the paint on her car and doing other damage to her car over a period of some time. And that is something I have to take into account. I also have to take into account the effect on the 87- year old woman who owned this car. I read the victim impact statement, and I accepted it. Your lawyer submits that you didn’t know who it was who owned the car. And, in my view, what was apparent from your actions was that you didn’t care who owned it. And who owned it was a real, live person, an 87-year-old woman who had had this car for apparently, almost 30 years. You caused significant damage to it. And this was her car parked in the parking spot that was hers. It wasn’t an invasion of her home, but it was an attack on her personal property, where she was allowed to park. Albeit, it had been badly parked but, nevertheless, it was where she was told to park it. And it had an effect on her; it has caused her significant emotional harm. So, at the end of the day, sir, when I asked myself would it be contrary to the public interest to grant you a discharge, in my view, it would be contrary to public interest. I accept that in many cases a discharge has as much deterrent value as a suspended sentence, but there is a difference between having a record of having been convicted of an offence, and not having a record of having been convicted of a offence. And for those who understand it, in my view, a slightly greater deterrent effect and, certainly, more denunciation is achieved by suspending passing a sentence and not giving you a discharge.”
Ground of appeal:
[6] Counsel for the appellant submitted that the learned judge committed an error in principle by failing to impose a conditional sentence with probation over a suspended sentence with probation in the circumstances of this case.
[7] The thrust of the argument was that the principle of restraint in sentencing mandated that the court should impose the least intrusive sentence which would achieve the overall purpose of being an appropriate and just sanction. That restraint requires a sentencing judge to consider all appropriate options before imposing a criminal conviction, or a term of incarceration. The sentencing judge erred by not effectively considering the appellant’s rehabilitation and the level of deterrence that could still be achieved through a conditional discharge, rather than a permanent conviction through a suspended sentence.
[8] I do not accept the argument that a sentencing judge by virtue of the principal of “restraint” is mandated to impose a conditional discharge in lieu of a suspended sentence in any circumstances. The principles of restraint and rehabilitation or proportionality are factors that a sentencing judge should consider when determining the appropriate sentence in any given case. The weight that might be attached to those principles depends upon the individual set of circumstances and the judges exercise of his or her discretion.
[9] The sentencing judge is obliged to consider the principles codified in section 718 of the Criminal Code of Canada. There is nothing in the record before me to suggest that the presiding judge committed an error in law. Before an appellate court can interfere with a sentencing judge's decision, it should find that an error of law was committed or that the sentence was clearly unreasonable in the circumstances. In R v. Shopshire (1995), 1995 CanLII 47 (SCC), 102 CCC (3d) 193 (SCC) at paragraph 46 the Supreme Court of Canada indicated the following:
An appellate court should not be given free reign to modify a sentencing order simply because it feels a different order ought to have been made. The formulation of the sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation of the sentence should only be made if the Court of Appeal is convinced that it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.
[10] The sentence imposed by the presiding judge was one that was well within his discretion. This was a case where the sentencing judge was faced with the choice between a suspended sentence or the granting of a discharge. The principle of denunciation, and the circumstances of the victim, more than justified rejecting a conditional discharge in this case. I would not interfere with the sentence. Appeal dismissed.
Released: January 24, 2022.
COURT FILE NO.: 20-A12250
DATE: 2022/01/24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
– and –
MATHIEU CODERRE
Respondent
SUMMARY CONVICTION APPEAL
Maranger J.