COURT FILE NO.: CR-22-0099-0000 DATE: 2024 10 11 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – IVAN MARINCIC
Mr. H. Apel, for the Crown Mr. Y. Gupta, for Ivan Marincic
HEARD: April 26, and October 3, 2024
REASONS FOR SENTENCE
CHOZIK J.
INTRODUCTION:
[1] The accused, Ivan Marincic (“Marincic”) was charged with two counts of dangerous driving causing bodily harm and two counts of impaired driving causing bodily harm contrary to sections 320.13(2) and 320.14(2) of the Criminal Code, R.S.C., 1985, c. C-46. The charges arose from a motor vehicle collision in Milton, Ontario on November 26, 2020. Marincic and his wife suffered serious injuries. The driver of the other vehicle suffered life-altering injuries.
[2] On September 18, 2023, Marincic pled guilty to one count of dangerous driving causing bodily harm contrary to section 320.13(2). The remaining charges were stayed at the request of the Crown. On October 11, 2024, the guilty plea was amended on consent to dangerous driving simpliciter contrary to section 320.13(1).
[3] Marincic is before the court to be sentenced.
[4] Earlier, Marincic applied for a stay of proceedings. I heard the application over the course of four days between April 24 and 27, 2023. On the application, Marincic argued that his rights were violated under sections 7, 8, 9 and 12 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 91(24) (“Charter”).
[5] I found that Marincic’s Charter rights were violated by the Halton Regional Police Service (“HRPS”), and that those violations were very serious. A detailed summary of the evidence on that application, my findings and conclusions are set out in R. v. Marincic, 2023 ONSC 3162.
[6] Despite the seriousness of the Charter violations, I declined to grant a stay of proceedings. Rather, I was of the view that other remedies could restore the integrity of the justice system. Those other remedies, as suggested by the Crown, included a substantial reduction of sentence and financial restitution or compensation for Marincic’s emotional and psychological suffering caused by the police misconduct: R. v. Marincic, at paras. 128-130.
[7] At this sentencing hearing, the parties initially put forward a joint submission. They proposed a sentence of imprisonment of 12 months, to be served as a conditional sentence with house arrest for the first 6 months. Marincic also sought damages of $25,000 at sentencing, and costs of the psychological assessment he paid in the amount of $7,000 plus HST. The psychological assessment was prepared to support his claim for damages.
[8] At issue at sentencing is whether this court has jurisdiction to order damages for Charter breaches by the police as part of a criminal proceeding. If there is no such jurisdiction, the second issue is whether acceding to the joint submission would bring the administration of justice into disrepute, having regard to those Charter violations. A third issue is whether the Crown should bear the cost of the psychological assessment Marincic had prepared and paid for to advance evidence of his damages at sentencing.
[9] Subsequently, the Crown conceded that if I were to find that I do not have jurisdiction to award damages or costs, a fit sentence would be nine months conditional sentence without house arrest. While the earlier joint submission represented a significant reduction of the sentence, it was premised to some extent on Marincic being awarded damages as compensation. The defence takes the position that if damages are not awarded, a fit disposition is a suspended sentence with one day non-reporting.
[10] For the reasons that follow, I conclude that I do not have the jurisdiction to award damages as part of a criminal sentencing. Damages are not one of the remedies available under the Criminal Code to an accused. Neither is restitution or any financial compensation. To obtain that relief, the accused must use the civil process.
[11] In the circumstances of this case, because damages are not available the most effective remedy for the Charter violations short of a stay of proceeding is a reduction of the sentence. I am of the view that the joint submission did not adequately reflect the seriousness of the Charter violations in this case. However, I am of the view that a stay of proceedings is also inappropriate. In all the circumstances, I conclude that a sentence of nine months, to be served as a conditional sentence, will meet both the principles of sentencing and maintain confidence in the administration of justice considering the Charter violations.
FACTS OF THE OFFENCE:
[12] By way of an agreed statement of fact, Marincic admitted the following facts in respect of the dangerous driving.
[13] The collision occurred at 3:34 am on November 26, 2020 at the intersection of James Snow Parkway and Esquesing Line. Marincic was operating a vehicle travelling eastbound on James Snow Parkway, when he collided with the rear of a Dodge Ram truck that was stopped at a red light behind a transport truck. Marincic’s vehicle and the Dodge Ram truck were “destroyed” because of the collision. The occupants of both vehicles had to be extricated by Halton firefighters due to the damage to both vehicles.
[14] The driver of the Dodge Ram truck, Richard Speirs (“Speirs”), and Marincic’s wife, Tara Hart, who was in the passenger seat of Marincic’s vehicle, were transported to hospital due to the extent of their injuries. Marincic was also taken to hospital, where vials of his blood were taken.
[15] Speirs underwent back surgery and had a steel disc and three steel rods inserted into his chest as a result of having a broken back. These will remain in place for the rest of his life. He also sustained trauma to his right shoulder and cannot lift anything with his right arm. He now walks with a cane and must attend physiotherapy twice a week to build up his leg strength. Speirs has constant pain in his arms and legs. He can no longer drive due to his injuries. He cannot bend over and will be in pain for the rest of his life.
[16] Speirs did not wish to make a victim impact statement. The Crown advised that he had discussed the joint submission with Speirs, who indicated that he had no anger towards Marincic, and had forgiven him. Speirs further indicated that no matter what sentence was imposed, it would not change anything for him.
[17] The analysis of the black box in Marincic’s car by a Collision Reconstruction Unit determined that he was operating the vehicle at 143 km/hr at the time of the impact, in a posted 70 km/hr zone.
[18] Subsequent analysis of his blood confirmed that at the time of the collision Marincic had 88 ng of fentanyl in 100 ml blood.
THE CHARTER VIOLATIONS - CIRCUMSTANCES OF MARINCIC’S ARREST:
[19] Marincic was arrested for the driving offences on April 1, 2021 when members of the HRPS Tactical Response Unit (“TRU”) stormed into his parents’ home. They entered the home ostensibly armed with a Feeney warrant, which the Crown later conceded was improperly obtained through the telewarrant process contained in section 487.1 of the Criminal Code. The arrest involved “dynamic entry” and a “shield takedown.”
[20] The Information to Obtain (“ITO”) for the Feeney warrant was on its face deficient and the warrant should not have been issued. As a result, the Crown conceded that Marincic’s rights guaranteed in sections 8 and 9 of the Charter were violated.
[21] In respect of sections 7 and 12, I found that the police used excessive force to execute the arrest. There was no urgency to the arrest: it was months after the alleged offences. Yet the arrest involved “dynamic entry” and a “shield takedown”. Based on false and misleading information, TRU engaged its “barricaded person” protocol. This is the protocol used when someone has been pursued to be arrested and is refusing to surrender, barricading themselves behind a wall or structure. As part of the take down, officers detonated a distraction device, momentarily blinding and stunning Marincic who had come out onto the porch of the home to surrender with his hands up. Fully geared and armed officers then ran into him, pushed him back into the house and took him down by force.
[22] The critical but false information that officers relied on was that Marincic had been given “multiple” opportunities to surrender to police and had refused. I found that this was untrue. A second piece of information that floated about amongst police was that there was a warrant for Marincic’s arrest prior to the Feeney warrant. No evidence of any such warrant was adduced on the application. None of the officers had seen a warrant. No one verified that a warrant had been issued before engaging the “barricaded person” protocol.
[23] In respect of the excessive force used, I found that at least three TRU officers – P.C. Proulx, P.C. Marini and P.C. Parker – executed the “shield takedown.” P.C. Proulx, using his Kevlar bulletproof shield, forced Marincic back into the foyer of the house into mirrored sliding doors. The mirrors exploded, showering both Marincic and P.C. Proulx with glass shards.
[24] P.C. Marini and P.C. Parker moved in and took Marincic down to the ground by force. Marincic was kneed in the ribs, which had been fractured earlier in the collision. P.C. Parker grabbed his hair and repeatedly smashed his head into a tile floor covered in broken glass. As Marincic was led out of the house to a police cruiser, the police verbally abused and demeaned him. This all transpired in front of Marincic’s elderly mother and father, in their home.
[25] I found that P.C. Parker was not truthful when he testified. In answer to the question of whether he had smashed Marincic’s head on the floor, his answer was: “that is absurd”. Considering the other evidence on the application, I found that P.C. Parker had grabbed Marincic’s hair and smashed his head on the floor as Marincic and his father had described.
[26] I concluded that Marincic’s arrest and detention were contrary to sections 8 and 9 of the Charter. I concluded that the officers used excessive force and violated his section 7 and 12 Charter rights. I found that each of these breaches was very serious.
[27] I declined to order a stay of proceedings under section 24(1) of the Charter. A major factor I considered was that the alleged offences involved life-altering injuries to a third party who had nothing to do with the police misconduct. Because of this, I concluded that there was a strong societal interest in an adjudication of the charges on the merits. However, I found that it was a “close call”: the integrity of the justice system and public confidence in the administration of justice weighed only slightly against a stay of the proceedings.
[28] I found that a trial would not be rendered unfair by the police misconduct. As the Crown suggested, I found that other available remedies for the Charter violations could restore the integrity of the justice system damaged by police misconduct in this case. I thought that those remedies could include a reduction of sentence, if one is imposed after trial, and financial restitution for the property damage and the emotional and psychological harm caused by the police misconduct. As a result, a stay of the proceedings was not necessary.
EVIDENCE IN SUPPORT OF MARINCIC’S CLAIM FOR DAMAGES:
[29] In support of his claim for damages, Marincic adduced a report dated March 13, 2024 setting out the impact of the Charter violations on him. The report was prepared by Dr. Gloria Fiati, a registered psychologist with the College of Psychologists of Ontario. Dr. Fiati sets out that she obtained a Ph.D. in psychology from the University of Toronto and received postdoctoral training in Clinical Psychology from York University.
[30] Dr. Fiati’s assessment of Marincic was based on her in-depth clinical interview with him, a PTSD questionnaire, a multidimensional pain inventory, an anxiety inventory, an impact on daily life questionnaire, the Beck Anxiety Inventory, the Beck Depression Inventory- II checklist questionnaire, a Concussion Checklist and a Post-Traumatic Stress Disorder Symptom Scale. These were administered to Marincic to evaluate his current mental health status and therapeutic needs. In addition, Dr. Fiati reviewed hospital notes and records from March 2005 to November 2020 in respect of Marincic, and my ruling on the Charter application.
[31] According to Dr. Fiati’s report, Marincic reported that his experience of the arrest has left him terrified of even going outside. He attempted to return to work, but after only a few days it became obvious that he could no longer work. He used to work as an electrician in the film industry. Since then, Marincic has gone into self-isolation and rarely leaves his home.
[32] Marincic reported experiencing headaches and dizziness [from a previous concussion aggravated by the arrest], upper, middle, and lower back pain, with the back pain radiating down his right leg, an injured right eye from the glass splinters that he said was never treated, cuts on his lower lip, multiple bruises on his face, and an injured right thumb which he told her continues to be painful and impairs his ability to have a “pencil grip” for holding the small instruments used on his job.
[33] Marincic advised that his ribs were re-fractured during the arrest. Those healed themselves but are still painful when the weather is extreme. Marincic told Dr. Fiati that his front teeth were broken during the arrest, and are now rotting. Marincic reported that he suffers as much from the trauma from being beaten by the police as he does from living with chronic pain.
[34] Marincic told Dr. Fiati that he had been a drug addict for many years. He had previous negative encounters with the police because of his drug addiction. He had been charged before for possession of drugs, stolen property and traffic offences. He felt that he had been excessively brutalized by the police on this occasion not because of these charges, which he contended were false and “most were dismissed in court,” but because of his history with the police. He reported that he has been drug-free since 2021 and is currently on methadone to help with his abstention.
[35] In respect of the assessment results, Dr. Fiati reported that Marincic scored 48 out of a total of 63 on the Beck Anxiety Inventory, which suggests that he is experiencing a severe level of anxiety in relationship to the beatings he experienced from the police. On the Beck Depression Inventory – II, used to assess Marincic’s emotional functioning, his score of ‘38’ placed him at the severe level of depression that warrants clinical intervention.
[36] Marincic’s response to the post-traumatic stress disorder system scale shows that he continues to experience a number of symptoms that fit into the category of post-traumatic stress disorder and they have a significantly distressing impact on him emotionally.
[37] The symptoms of concussion were also very troubling for Marincic and disruptive of his engagement in his activities of daily living. They are reflective of a “continuation” of his concussion injury and require a comprehensive assessment with the goal of developing a treatment protocol for him.
[38] Dr. Fiati concluded that the following diagnosis apply to Marincic:
Axis I: Adjustment Disorder with Depressed Mood Anxiety Disorder- Travel Anxiety Severe Depression Post-traumatic Stress Disorder Axis III: Somatic Symptom Disorder Concussion Symptoms Axis IV: Occupational difficulties
[39] Dr. Fiati concluded that Marincic’s results on the various assessments reflect that he is suffering a great deal from the psychological sequelae of the trauma from the intensity of the beating he got from the police during his arrest. He also continues to experience the distress of living with chronic pain, concussion symptoms and post-traumatic stress disorder. Given the outcome of the assessment, Dr. Fiati recommended that Marincic participate in psychological therapy to address these ongoing symptoms. She also recommended a comprehensive assessment for concussion and participation in a chronic pain management program.
[40] According to Dr. Fiati, the impact of Marincic’s trauma from his beating and “SWAT-style arrest” has been incapacitating for him. After realizing that he could no longer fulfill the responsibilities of his employment, Marincic became deeply depressed and fell into an emotional space in which he disengaged from life. The psychological impairment Marincic sustained from the trauma and intensity of his beating are significant and substantial, but without appropriate intervention – which he has not had – it is not possible to determine the permanence of his injuries at this time.
[41] According to Dr. Fiati, Marincic will need psychological therapy to restore his reason for living and physical rehabilitation including assistance in carrying out his daily responsibilities. Dr. Fiati could not estimate the cost of these services, as this is outside her area of expertise. A future cost-of-care plan for all areas of Marincic’s rehabilitation needs would need to be developed.
POSITIONS OF THE PARTIES ON SENTENCE:
[42] As I have set out, the Crown and the defence initially submitted jointly that a fit sentence in all the circumstances is 12 months imprisonment, to be served in the community as a conditional sentence followed by 12 months probation. It was proposed that for the first six months of the conditional sentence, Marincic would be under house arrest with various exceptions. Throughout the 12 months of the conditional sentence and the probation that would follow, there would be a term that Marincic attend counselling as directed by the conditional sentence supervisor (“CSS”).
[43] The Crown and defence agreed that while ordinarily a driving prohibition would be imposed, one was not necessary here. Marincic has been prohibited from driving since his arrest, more than three years ago, as part of his pre-trial release. It is not disputed that he is entitled to credit for this time: R. v. Basque, 2023 SCC 18. Hence, the Crown was not seeking a further driving prohibition.
[44] In addition, the defence sought damages of $25,000 for the violation of Marincic’s Charter rights, as well as recovery of the cost of Dr. Fiati’s assessment for which Marincic paid $7,000 plus HST out of pocket.
[45] Initially, the Crown did not dispute that Marincic may be entitled to damages per se for those Charter violations, but argued that those damages should not be ordered at sentencing because:
a. The evidence of his damages is not reliable, and Marincic’s claims to Dr. Fiati may be exaggerated or embellished. b. The HRPS, who would be liable for the damages, had no notice of the proceeding, no standing or opportunity to make submissions in respect to damages.
[46] Neither party referred to any authorities in respect of whether this court had jurisdiction to order damages or costs in a criminal proceeding.
[47] At my request on October 3, 2024, the parties made additional submissions in respect of jurisdiction to order damages or costs for Charter breaches in criminal proceedings having regard to the decisions of the Supreme Court of Canada in R. v. Mills, [1986] 1 S.C.R. 863 and R. v. 974649 Ontario Inc., 2001 SCC 81.
[48] The Crown now takes the position that I do not have jurisdiction to order damages at sentencing. As a result, the Crown suggests a further reduction of the sentence to nine months conditional sentence without house arrest.
[49] The Crown argues that there is no jurisdiction to award costs of the psychological assessment at sentencing having regard to the decisions in R. v. Tiffin, 2008 ONCA 306, and R. v. Singh, 2013 ONCA 750.
[50] The defence submits that since this court has jurisdiction over both criminal and civil proceedings, it is a court of “competent jurisdiction” to award damages, whether in a civil or criminal proceeding. The defence submits that if I conclude that there is no jurisdiction to award damages at sentencing, I should then either stay the proceedings or impose a suspended sentence, with one day probation without reporting. In respect of the costs of the assessment, the defence takes the view that it was integral to the criminal sentencing process and the only way to adduce evidence of Marincic’s psychological injuries, hence the Crown should bear that cost.
LEGAL PRINCIPLES AND ANALYSIS:
A. Jurisdiction to Award Damages for Charter Violations at Sentencing:
[51] Section 24(1) of the Charter provides remedies for unconstitutional government action. Anyone whose Charter rights have been violated may apply to a court of competent jurisdiction for an appropriate remedy. Section 24 (1) of the Charter states:
24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
[52] In Mills, the Supreme Court of Canada observed that the Charter is without jurisdictional provisions and directions. McIntyre J. cautioned that the Charter was not intended to “turn the Canadian legal system upside down.” Rather, the Charter must fit into the existing scheme of Canadian legal procedure: R. v. Mills, at para. 262. As a result, civil remedies should await civil court: R v. Mills, para. 292.
[53] This should end the question of whether there is jurisdiction to order damages in a criminal proceeding. The defence argues, however, that in Mills the result was driven by the fact that the court in that case was a provincial court, rather than a superior court and hence it was not a court of “competent jurisdiction.” I disagree.
[54] The question is not whether this court is one of competent jurisdiction to order damages. It is. The question is whether this court can order damages in a criminal proceeding.
[55] In Mills, and the subsequent decision in 974649 Ontario Inc., the Supreme Court of Canada considered and rejected an approach under which criminal courts could grant civil remedies: R. v. Mills, at para. 42; R. v. 974649 Ontario Inc., at paras. 57-59. The court in 974649 Ontario Inc. held that “section 24 should not be read so broadly that it endows courts and tribunals with powers that they were never intended to exercise”: R. v. 974649 Ontario Inc., at para. 22. The jurisdictions of Canada’s various courts and tribunals are fixed by Parliament and the legislatures, not by judges: Mills, supra, at para. 261 (per McIntyre J.); R. v. 974649 Ontario Inc., at para. 22.
[56] The task of the court in interpreting section 24(1) of the Charter is to achieve a broad, purposive interpretation that “facilitates direct access to appropriate and just Charter remedies under ss. 24(1) and (2), while respecting the structure and practice of the existing court system and the exclusive role of Parliament and the legislature in prescribing the jurisdiction of courts and tribunals”: R. v. 974649 Ontario Inc., para. 24. The power of the tribunal to grant the remedy sought must emanate from a source other than the Charter itself: R. v. 974649 Ontario Inc., para. 26.
[57] There are fundamental differences between the civil and criminal process, which must be respected in Charter litigation. As Lamer J. observed in Mills, there are structural limitations within the criminal process that prevent it from offering a fair hearing in respect of damages. At para. 42, Lamer J. observed that:
[D]esirable as might be a system whereby a person could get from the judge he or she is before a plenitude of remedies [i.e. including civil remedies], this approach has to be defeated by the fundamental differences as between the civil and criminal process.... [I]t will be difficult to afford the alleged violators, susceptible to pay damages or to be the object of some injunction, a fair hearing within the criminal justice process, whilst guaranteeing the accused all traditional safeguards. Furthermore, the criminal courts are not staffed and equipped to cope with such types of determinations.
[58] Although Lamer J. was writing in dissert, the majority agreed on this issue and this passage was subsequently cited with approval in the unanimous decision in R. v. 974649 Ontario Inc. at para 56.
[59] Once jurisdiction over the person and subject matter is established, a criminal court is empowered to grant any criminal law remedy: R v. 974649 Ontario Inc., at para. 59.
[60] The defence is correct in stating that damages as a remedy for Charter violations are available under s. 24(1) of the Charter: Vancouver (City) v. Ward, 2010 SCC 27, at para. 21. But those damages are only available in civil cases. Damages may be awarded under s.24(1) of the Charter where “appropriate and just”: R v Ward, at para. 4. There is a four-step inquiry to award damages for a Charter violation in civil cases. Ward did not overrule or change earlier jurisprudence which is clear: damages cannot be awarded in criminal proceedings.
[61] Marincic relies on the Alberta Court of Appeal decision in R. v. Reilly, 2019 ABCA 212, in support of his claim for damages and the proposition that this court has inherent jurisdiction to award damages to an accused without forcing him or her to pursue subsequent civil action. With respect, I do not think the decision in Reilly supports this reasoning.
[62] In that case, the court considered “appropriate and just” remedies under s.24(1) of the Charter in circumstances where systemic problems resulted in a delay for the accused to have a bail hearing. The court reviewed available remedies under s.24(1) and noted, citing Ward, that while damages were an available remedy, “[t]his, unfortunately, would require a separate claim for those damages […]”: R. v. Reilly, at paras. 31-32.
[63] All the cases relied on by Marincic at sentencing in which damages were awarded for Charter violations were decided in the context of civil proceedings. I am not aware of any criminal court granting damages for Charter violations. This makes sense.
[64] Within the criminal process there is no mechanism to test a claim for damages, apportion liability for damages (as between HRPS and individual officers, for example), or hear submissions of the violators. The police do not have standing in cases involving Charter claims in criminal prosecutions. The criminal sentencing regime is not structured to afford a fair hearing in respect of damages. Claims for damages are best dealt with in civil actions or applications in accordance with civil rules of procedure.
[65] In this case, the HRPC may question whether Marincic’s inability to work arose from the Charter violations or because of other underlying issues. The apportionment of liability and quantum of damages may reflect those findings.
[66] Ordinarily, a party claiming damages would be subject to cross-examination in respect of his or her claims or injuries. The evidence of third parties, such as experts, is received by way of affidavit on an application or viva voce evidence at a trial. That expert is then subject to cross-examination. This way, claims for damages are thoroughly tested as part of a civil process.
[67] At sentencing, Marincic could not be cross-examined on the psychological report or the claims he made to Dr. Fiati. As the Crown points out, some of those claims appear to be inconsistent with his evidence on the Charter application. For example, Marincic told Dr. Fiati that his teeth were broken during his arrest yet did not mention this in his evidence on the application. He also told Dr. Fiati that his thumb was injured and that he could no longer work as a result, but did not mention this injury during the voir dire either. There is also no medical evidence to support that he has glass shards in his eye. Dr. Fiati’s report was not attached to an affidavit. She was not called to testify, and could not be cross-examined.
[68] The defence submits that Marincic could have been, and was, cross-examined about his injuries when he gave evidence on the application and that his claims have therefore been tested. I do not agree. The focus of his evidence on the application, both in chief and in cross-examination, was on circumstances of his arrest in order to establish the Charter violations. The consequences of those violations to establish damages were not the subject of cross-examination on the application. While there was a bit of evidence about how the Charter violations impacted him, as it related to a stay of proceedings, the cross-examination was not the same as it would be at a civil proceeding or if the cross-examination is conducted by the party liable for the damages. I find that Marincic’s claims for damages were not sufficiently tested, nor could they be in the context of the Charter application.
[69] In conclusion, damages are a form of civil relief. There is no provision in the Criminal Code that allows this court to grant damages for wrongs suffered, not to a victim of a crime, nor to an accused who suffered because of police misconduct. Criminal courts are structurally and functionally ill-equipped to assess or award damages. A Charter application or a sentencing proceeding are not appropriate forums to digress into liability for damages, or quantum of damages.
[70] As a result, I conclude that this court does not have jurisdiction to award damages or otherwise compensate an accused person financially for Charter violations in the context of a criminal proceeding.
[71] It remains open to Marincic to pursue damages against the HRPS in a civil action or application.
B. Sentence to Be Imposed:
[72] Since I cannot order damages under s.24(1) at sentencing, I have re-considered whether a stay of proceedings is an appropriate remedy. I conclude that it is not. This is because of (a) the seriousness of the offence, (b) catastrophic life-altering injuries to the victim, and (c) the degree of Marincic’s impairment at the time of the driving. These factors continue to weigh against staying the proceedings.
[73] I accept the Crown’s submission that a conditional sentence is a significant reduction of the sentence Marincic could have otherwise expected to receive. I agree with the Crown that but for the Charter violations, a fit sentence would likely be a term of imprisonment in the penitentiary or upper reformatory range.
[74] Since I cannot award damages, I have also considered whether a suspended sentence is appropriate. I conclude that it is not. Deterrence and denunciation are key considerations in this nature. A suspended sentence would not adequately reflect those principles.
[75] In all of the circumstances, I conclude that a fit sentence is a period of imprisonment of nine months to be served as a conditional sentence, without house arrest or a curfew. In reaching this conclusion I have considered that Marincic was subject to a very strict form of release for more than three years. His release included conditions that he live with his mother and obey a curfew for the first year. Marincic also has a dated unrelated record, the last entry for which was in 2016.
[76] I agree that there should not be any further driving prohibition since Marincic has been prohibited from driving since his arrest on April 1, 2021.
C. Costs of the Psychological Assessment:
[77] In terms of the costs of the assessment, I agree with the Crown that the decisions of the Ontario Court of Appeal in Tiffin and Singh set the bar for ordering costs against the Crown very high. The bar has not been met here.
[78] In Tiffin the court states that “costs orders will not be made against the Crown for the misconduct of other parties, such as witnesses or investigative agencies, unless the Crown has participated in the misconduct.” Where some party other than the Crown has engaged in misconduct, the appropriate remedy is a civil claim for damages: R v. Tiffin, para. 96.
[79] The court further observed that the jurisdiction to award costs against the Crown requires something “rare” or “unique” that “must at least result in something akin to an extreme hardship on the defendant”. As a general rule, costs claimed by an accused person absent Crown misconduct, will not be “an appropriate and just” Charter remedy: R v. Tiffin, para. 98.
[80] In Singh, the court rejected the proposition that costs against the Crown could be ordered in cases of merely serious Crown misconduct or for just any Charter infringement: R v. Singh, paras. 29-30. It held that a costs award against the Crown will not be an “appropriate and just” remedy under s. 24(1) of the Charter absent a finding that the Crown’s conduct demonstrated a “marked and unacceptable departure from the reasonable standards expected by the prosecution”, or something that is “rare” or “unique” that results in something akin to “extreme hardship” to the defendant: R v. Singh, para. 38. The court further noted that it is on error for the trial judge to visit police misconduct on the Crown by awarding costs: R v. Singh, para. 45.
[81] In this case, I find that the Crown had no part in Charter violations, and it would not be appropriate or just to order costs against it. Marincic can (and should) seek reimbursement for the costs of the assessment through the civil process.
CONCLUSION:
[82] For these reasons, I decline to order damages or costs for the Charter violations. The appropriate and just remedy in the circumstances is a significant reduction of the sentence. The sentence imposed shall be nine months, to be served as a conditional sentence. The terms of the sentence shall include only the statutory terms as set out in s. 742.3(1) of the Criminal Code.
Chozik J. Released: October 11, 2024