The Defence Toolkit – January 22, 2022

This week’s top three summaries: R v Naslund, 2022 ABCA 6: #overturn joint sub down, R v Chacon-Perez, 2022 ONCA 3: #jury questions, and R v Downes, 2022 BCCA 8: #voyeurism temporal use of location.

R v Naslund, 2022 ABCA 6

[January 12, 2022] Overturning a Joint Submission Downwards [Majority: Sheila Greckol J.A. and Kevin Feehan J.A., Dissent Thomas W. Wakeling J.A.]

AUTHOR’S NOTE: Overturning joint submissions has become particularly difficult since R v Anthony-Cook, 2016 SCC 43. In most circumstances, defence or appellate counsel are defending a good plea bargain on appeal while the Crown is trying to increase the sentence. However, in this unusual case, the defence appealed because the sentence given to a woman suffering from years of abuse (ie. fitting the battered spouse syndrome), pled guilty and agreed to a incredibly high manslaughter sentence to escape a life sentence for murder. The Court was clearly reacting to the circumstance of the extensive life of abuse suffered by the accused. While the offence involved shooting her husband in the back of the head twice while he slept, this actually did not exclude a properly constituted battered spouse defence. She conceivably could have mounted a successful defence, but declined to try. The ready criticism of the decision is that the Court was actually lowering a sentence of a legally innocent accused. However, the reality is that this case now provides a roadmap to challenging joint submissions in the future where deals are made that are regretted after the fact. 

Overview

[1] Joint submissions serve an important role in the Canadian criminal justice system. But their value is not without limit. Joint submissions are not sacrosanct and judges are not necessarily bound by them. In those rare cases where the proposed sentence would bring the administration of justice into disrepute or would be contrary to the public interest, they should not be accepted. This is one such case.

[2] Helen Doris Naslund faced charges of first-degree murder contrary to s 235(1) of the Criminal Code, RSC 1985, c C-46, and indecently offering an indignity to human remains contrary to s 182(b) of the Criminal Code in relation to the death of her husband, Miles Naslund. Under the terms of a plea agreement, Ms. Naslund pleaded guilty to the lesser included offence of manslaughter in exchange for the Crown agreeing to a sentence of 18 years’ imprisonment andwithdrawal of the indignity to human remains charge.

[5] Ms. Naslund now appeals her 18-year sentence notwithstanding that it proceeded by way of joint submission. She argues the joint submission should have been rejected by the sentencing judge because it met the test for rejection set by the Supreme Court of Canada in R v Anthony-Cook, 2016 SCC 43, para 5, [2016] 2 SCR 204 [Anthony-Cook], namely that the sentence “would bring the administration of justice into disrepute, or would otherwise be contrary to the public interest”.

[6] She submits the sentence is unduly harsh because it failed to account for the fact that Ms. Naslund was a “battered woman” who, having endured a physically abusive 27-year marriage, killed her husband rather than continuing to risk being killed herself. Given the large disparity between past manslaughter sentences involving battered women who kill their abusive partners and the 18-year sentence proposed by counsel in this case, allowing such a joint submission to stand would, Ms. Naslund argues, cause the reasonable observer to lose confidence in the justice system and be contrary to the public interest.

Facts

[9]  The parties proceeded on an Agreed Statement of Facts as follows.

[10]  Ms. Naslund was born in 1964. She married Miles Naslund, born in 1961, and together they had three children: Wesley, born in 1984; Darrell, born in 1988; and Neil, born in 1992.

[13] The 27-year marital relationship involved many incidences of physical and emotional abuse, including controlling behaviour directed at Ms. Naslund. Her use of alcohol increased throughout their time together. She struggled with depression through the early 2000s and made attempts at taking her own life, nearly succeeding in the spring of 2003.

[14] Multiple family members, including Ms. Naslund, observed Miles handling firearms in and around their home while heavily intoxicated. Although Miles often intimated an intention to commit suicide when in this intoxicated state, Ms. Naslund genuinely feared for her safety as a result of comments Miles would make during these times. Ms. Naslund was unhappy in her marriage but, due to the history of abuse, concern for her children, depression and learned helplessness, she felt she could not leave.

[15] The September long weekend traditionally was the farm’s yearly financial measuring stick. An entire year’s financial health was dependant on the work done on the farm in the surrounding two months. This added stress to the already problematic family relationship.

[16] Miles became highly intoxicated over the September 2011 long weekend, ordering Ms. Naslund and Neil to complete farming tasks while he was handling his firearm. Although Ms. Naslund worked Saturday at A-1 Rentals, she ran the haybine upon her return from work and throughout the day Sunday. The tractor broke down and Miles was required to leave the home to assist in repairing the equipment. Miles became so angered that he threw a number of wrenches at Ms. Naslund during an angry tirade.

[17] Ms. Naslund prepared Sunday dinner for the family on a brief break while the tractor was repaired. Upon Miles’ return from the field he indicated that she would “pay dearly” for damaging the equipment, then violently cleared the fully set dinner table onto the floor, indicating the meal was not fit for a dog. Miles’ threatening behaviour increased in severity throughout the day, only temporarily calming when he passed out late that evening.

[18] During the early morning hours of September 5, 2011, Miles was sleeping in the bed he shared with Ms. Naslund. Ms. Naslund retrieved a .22 calibre revolver pistol stored in a cabinet in the house and shot Miles twice in the back of the head, killing him instantly.

[21] That evening, Ms. Naslund and Neil took the toolbox containing Miles’ body and a fishing boat to a nearby dugout and the toolbox containing Miles’ body was dumped in the water….

[22] On September 6, 2011, Ms. Naslund phoned the local police detachment and reported Miles missing. She fabricated a story to explain his sudden disappearance and suggested that her children also adopt the fabricated story. The story was that Miles had left the house in the family Cavalier to go farming and did not return. He had taken his Smith and Wesson .357 Magnum revolver with him but not his phone or wallet. The story implied he had driven off somewhere in his car and committed suicide.

[24] During the years following Miles’ death, Ms. Naslund from time to time feigned concern with the lack of progress respecting the disappearance and even criticized the RCMP, suggesting their investigation to locate him was insufficient….

[25] On August 28, 2017, the Camrose RCMP received a report from multiple people that Darrell had recently told them about the unlawful killing and subsequent disposal of Miles’ body.

[26] On August 31, 2017, Darrell provided the RCMP with a warned and cautioned statement detailing the events surrounding the death and disposal of the body in September 2011.

[27] Between September 1 and 13, 2017 the home, farm, and two dugouts were searched by the RCMP Major Crimes Unit. The RCMP underwater recovery team recovered the large metal truck toolbox almost completely buried in silt at the bottom of the dugout a few miles from the house. Miles’ partially decomposed body was located inside.

[29] Police excavated the area behind the shop on the farm property and recovered the Chevrolet Cavalier. On September 5, 2017 an autopsy was conducted on Miles’ body. Two gunshot wounds to the back of the head were located with soot deposition on the skull, indicating they were contact gunshot wounds. Two .22 calibre bullets were recovered from the deceased’s brain tissue. Death occurred because of gunshot wounds to the head.

[31] The Agreed Statement of Facts included the statement that Ms. Naslund “admits that shooting Miles in the head from close range was an unlawful act where serious bodily harm was objectively foreseeable, though she lacked the intent to murder Miles”. Ms. Naslund further agreed that the terms of s 606(1.1) of the Criminal Code were met.

Submissions and Decision at the Sentencing Hearing

[32] In addition to the agreed facts, defence counsel elaborated upon the family history and 27- year marriage. Ms. Naslund – who was 46 years old at the time of the killing and 56 years old at the time of sentencing – married Miles at 19 years of age and the children were born soon after. The oldest son Wesley “described the house as one of constant struggle as he was growing up, and yet he describes and wished to express his gratitude to his mother for all she had done to protect he and his brothers”.

[33] Defence counsel set out Ms. Naslund’s description of the extent of Miles’ controlling behaviour:

She describes her relationship with Miles, indicating that, when I was in public, he was always right there. If I talked to a friend, he had to be there to include his input. I couldn’t go anywhere without him. I had to get rid of the horses. I couldn’t go to events. It was do as I say or else, that’s the way it’s going to be. It was always the third degree in terms of questioning, and if I went to town, he would ask where exactly did you go, who exactly did you speak with.

[34] The Court was also advised of family members recounting to defence counsel “numerous experiences of difficulties within the home. Alcohol was a significant issue, as was violence, as well as gun play”; that friends and family who reached out in support of Ms. Naslund “could barely understand the justification and fairness of what was to happen today”.

[36] The Crown submitted an 18-year period of incarceration was “a fit and proper sentence”, but offered no case law detailing sentences for offenders in circumstances comparable to that of Ms. Naslund. Instead, the Crown cited only R v LaBerge, 1995 ABCA 196, 165 AR 375 [LaBerge], said to be the “guiding light” addressing moral culpability in manslaughter cases. From LaBerge the Crown reasoned that Ms. Naslund’s moral culpability was “at the higher end of the spectrum and justifies the sentence closer to the higher end of the range” since her actions were “nearing murder”.

Analysis: Joint Submissions

[56] Notwithstanding the obvious benefits of joint submissions, sentencing judges may nevertheless depart from them:Anthony-Cook, para 3. Accordingly, a test is needed against which to “measure the acceptability of the joint submission”: para 25.

[57] The proper test was definitively settled in Anthony-Cook as the “public interest” test: para 31. First developed in the Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (Toronto: Ontario Ministry of the Attorney General, 1993) [Martin Report], the public interest test provides that a sentencing judge “should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise not in the public interest”: Anthony-Cook,para 29, citing the Martin Report, 327.

[58] Further elaboration on this threshold was set out in Anthony-Cook, paras 32-34: …

[33]      In Druken [R v Druken, 2006 NLCA 67, 215 CCC (3d) 394 [Druken]], at para. 29, the court held that a joint submission will bring the administration of justice into disrepute or be contrary to the public interest if, despite the public interest considerations that support imposing it, it is so “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system”.  And, as stated by the same court in R. v. B.O.2, 2010 NLCA 19, at para. 56 (CanLII), when assessing a joint submission, trial judges should “avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts”.

[34] … Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold – and for good reason … [Emphasis added]

[65] I agree with Wakeling JA that there is a distinction between a sentence being “demonstrably unfit” and being contrary to the public interest and, further, that the latter test is more onerous. This is clear from Anthony-Cook, where the Supreme Court of Canada explicitly rejected the “demonstrably unfit” test….

[67] That said, I reject my colleague’s suggestion that the two tests are entirely distinct such that the fitness of sentence is irrelevant to the question of whether a sentence is contrary to the public interest. In my view, whether a joint submission is fit on the basis of conventional sentencing principles is a relevant, though not determinative, consideration when deciding whether accepting such a sentence would bring the administration of justice into disrepute.

[70] As a “screen” through which to view whether the sentence is contrary to the public interest, it has been suggested that “ordinary sentencing principles are a starting point to judging the appropriateness of a joint sentencing submission” (emphasis added): R v Barrett, 2011 NLCA 5, para 26, 266 CCC (3d) 251….

[71] Similarly, in Druken, one of the authorities affirmed in Anthony-Cook for having adopted the proper test, Rowe JA (as he then was) stated that when making the public interest determination “the question of whether the sentence is unreasonable must be considered”: para 18, emphasis added. The Newfoundland and Labrador Court of Appeal then went on to posit that “there must be some minimum, having regard to the facts of each case, below which a proposed sentence cannot be accepted”: para 19, emphasis added. To this one might add – in anticipation of a sentence like that given to Ms. Naslund – that there must likewise be somemaximum sentence above which the joint submission cannot be accepted.

[72] … In short, a sentencing judge must consider both the benefits of the joint submission process as well as the fitness of the proposed sentence: para 84.

[73] This makes eminent sense. Indeed, were the reasonableness of the sentence not part of the equation, it would be impossible to determine whether the sentence was “unhinged from the circumstances of the offence and the offender”: Anthony-Cook, para 34, emphasis added. After all, a sentence cannot be “unhinged” in the abstract; it is unhinged from something, namely the gravity of the offence and the degree of responsibility of the offender. Proportionality is thus a necessary (though not sufficient) consideration when determining whether a joint submission meets the “public interest” test.

[78] With these considerations in mind, I am left to determine whether the sentencing judge applied the proper test in accepting the joint submission of 18 years’ imprisonment. Before doing so, however, a preliminary issue requires some attention: the propriety of appellate review in cases such as this.

Appellate Review of Sentencing

[84] The foregoing makes clear that appellate review retains an important role even in instances where, as in the case of Ms. Naslund, a joint submission is accepted at sentencing. All sentences must be in the public interest and appellate review ensures that no sentence accepted as part of a joint submission is so far outside the appropriate range of sentence as to run afoul of this dictate.

[85] What is more, the decisions in Wood and Sriskantharajah illustrate that an accepted joint submission is most susceptible to appellate intervention in circumstances where, as in the case of Ms. Naslund, the Crown agrees to reduce murder to manslaughter in exchange for a high manslaughter sentence.

Application to Ms. Naslund

[86] Turning, then, to the merits of Ms. Naslund’s appeal, I find that the sentencing judge applied the wrong test in assessing the propriety of the joint submission.

[87] The sentencing judge described the test he applied to the joint submission this way:

Here, there are significant offences, yet all counsel have come into the courtroom today, and they’ve said this would be a fair result. And so what a judge’s function is when there’s a joint submission before the Court is to make sure that justice is still done. That is the goal that we try to reach, that somebody isn’t being taken advantage of. Now, my knowledge of this case is much, much less than that of [counsel]… So they know more about it than I do, and they are experienced lawyers. They are lawyers who have handled cases like this in the past. No one is being taken advantage of here. Sometimes you see that when you have a senior defence counsel and a junior Crown. That is not happening here. [Emphasis added]

[88] With respect, the issue was not whether a lawyer was being “taken advantage of”. Nor was it sufficient to accept the joint submission because it was proposed by “experienced lawyers”. Rather than relying on the experience of counsel in accepting the joint submission, it was incumbent upon the sentencing judge to probe the sentence sufficiently to decide for himself whether the joint submission met the standard set by Anthony-Cook. The record shows that he neglected to do so, the result being that the sentencing judge did not apply the public interest test. Accordingly, he erred.

[91] The sentencing judge clearly failed to grapple with the fitness of the sentence by conventional standards (and thus whether it might have been unduly harsh even in light of the benefits presented by the joint submission), as evidenced by the fact that no case law was considered which spoke to the circumstances of Ms. Naslund. Such case law was required so that the sentencing judge could properly determine whether the sentence was proportionate. As the Supreme Court of Canada recently reaffirmed in R v Parranto, 2021 SCC 46, para 11 [Parranto], “[c]ourts cannot arrive at a proportionate sentence based solely on first principles, but rather must ‘calibrate the demands of proportionality by reference to the sentences imposed in other cases’” (emphasis added), citing R v Friesen, 2020 SCC 9, para 33 [Friesen]. Consideration of sentences imposed in other cases is, at least in part, how “the principle of proportionality is respected”: R v Reeve, 2020 ONCA 381, para 31, 151 OR (3d) 65.

[92] Counsel too failed to fully explain to the sentencing judge how they arrived at a sentence markedly harsher than those imposed in similar cases, as demonstrated below. Counsel is under an obligation to “amply justify their position”: Anthony-Cook, para 54. This necessitates linking the facts of the case to the range of sentence appropriate to such facts, and where the sentence falls outside this range, to give a comprehensible accounting of why that is so. As this Court noted in R v Tkachuk, 2001 ABCA 243, para 33, 159 CCC (3d) 434 [Tkachuk], “[w]here the proposed sentence is not obviously within the accepted range of sentence for that offence, counsel, and particularly Crown counsel, should explain to the court the reasons for departing from a sentence within that range”.

[94] To be clear, determining whether an 18-year sentence was proportionate in the circumstances would not have been sufficient to allow the sentencing judge to decide whether the joint submission was contrary to the public interest. But it was a necessary step. Only then could he have determined, in light of the benefits of the joint submission, whether the sentence was sufficiently “unhinged from the circumstances of the offence and the offender”: Anthony-Cook, para 34. This did not happen. Accordingly, I am unable to find that the sentencing judge applied the proper test for accepting a joint submission as contemplated in Anthony-Cook.

Battered Woman Syndrome in Sentencing

[98] Though Lavallee was not itself a sentencing case, it has since become clear that a woman who has been subjected to domestic violence is entitled to raise that history as “a relevant factor in evaluating her subsequent actions” outside of self-defence. The psychological effects of domestic abuse are likewise relevant to sentencing – in particular, the question of moral blameworthiness, a component of the proportionality analysis. This explains why, as we shall see, sentences in these circumstances are almost invariably on the lower end of the spectrum.

[100] As previously noted, sentencing in this case proceeded solely on the Agreed Statement of Facts. Accordingly, no expert evidence was tendered, whether on Ms. Naslund’s psychological state or otherwise. From this Wakeling JA posits, and the Crown at least intimates, that the record is too sparse to conclude that Ms. Naslund had been suffering from “battered woman syndrome”.

[101] I disagree. While a more fulsome record would have been preferable, I am nonetheless satisfied that Ms. Naslund exhibited sufficient hallmarks of “battered woman syndrome” so as to be sentenced on that basis.

  Multiple family members, including Ms. Naslund, observed Miles handling firearms in and around the home while heavily intoxicated;

  Although Miles often intimated an intention to commit suicide when in this intoxicated state, Ms. Naslund genuinely feared for her safety as a result of comments he made during these times; and

  Ms. Naslund was unhappy in her marriage but, due to the history of abuse, concern for her children, depression and learned helplessness, she felt she could not leave.

[103] These facts reveal that Ms. Naslund experienced the classic features of a cycle of domestic violence: the combined effect of power and abuse at the hands of her husband over many years that resulted in mental health conditions whereby she felt trapped by circumstances such that “she could not leave”. This combination of life events and its consequences for the abused partner – most often the wife – has been recognized well before the 1990 decision in Lavallee and in many cases since, as detailed below. We see this phenomenon in courts across the country day in and day out. It is so well known that the cycle can be recognized and named as “battered woman syndrome”, with or without expert evidence.

[104] Most significantly, the parties agreed that Ms. Naslund felt she could not leave her situation due to “learned helplessness”. This is not merely a sympathetic phrase. It is a term of art central to the concept of “battered woman syndrome”.

[105] Battered woman syndrome is premised on the idea that “repeated violence induced a state of helplessness in women which prevented them from taking effective action against their abusers”, where “helplessness” is “not an innate condition of battered women, but a learned response to repeated trauma” (emphasis added) …

[106] … Since the parties in the present case have already agreed that Ms. Naslund suffered from “learned helplessness”, much ofthe rationale for calling expert evidence dissipates.

[107] Having found that “battered woman syndrome” applies to Ms. Naslund, I can now determine its relevance for purposes of sentencing.

Battered Woman Syndrome as Significantly Mitigating

[108] The legal consequence of a woman who kills her partner while suffering from “battered woman syndrome” is not black and white. This is due, at least in part, to the fact that it is not determinative of culpability. As L’Heureux‑Dubé J noted in R v Malott,1998 CanLII 845 (SCC), [1998] 1 SCR 123, para 37, “[i]t is clear … that ‘battered woman syndrome’ is not a legal defence in itself such that an accused woman need only establish that she is suffering from the syndrome in order to gain an acquittal”. Were it a defence in itself, the issue of “battered woman syndrome” would never arise in sentencing because self-defence results in a full acquittal. But the issue does arise in sentencing. And that is because the law recognizes a diminished moral blameworthiness in those for whom “battered woman syndrome” is present but does not, for one reason or another, form the basis of a successful self-defence claim at trial.

[110] A more systematic characterization soon followed in R v Bennett, [1993] OJ No 1011, paras 20-24 (QL), 18 WCB (2d) 552 (Ont CJ) [Bennett], Ratushny J deploying a “sliding scale” to categorize the various mental states of battered women who kill their partners. At one end is the battered woman who is not guilty of any offence because she has acted in self-defence. At the other end is the battered woman who does not have “battered woman’s syndrome” at all, having acted out of anger or revenge rather than feeling “psychologically trapped by the relationship”. Most significant for sentencing purposes is the situation between these ends: the psychologically trapped battered woman who, while not found to have killed in self-defence, nevertheless fits the “battered woman’s syndrome” profile. Ms. Naslund falls into this middle category. So too did Ms. Bennett, who pleaded guilty to manslaughter on a charge of first-degree murder after stabbing her abusive partner to death. Ms. Bennett received a suspended sentence and three years’ probation.

[111] This important middle category was revisited in R v Craig, 2011 ONCA 142, para 59 [Craig], where Doherty JA, writing for the Ontario Court of Appeal, characterized the psychologically trapped battered woman (i.e., “battered woman syndrome”) as having a “substantially reduced” moral blameworthiness:

As explained by Ratushny J. in Bennett, at para. 20, a passage quoted by the trial judge, abuse, whatever its form, can have different effects on the subject of the abuse. Where that abuse leaves the abused individual feeling utterly trapped in the relationship and emotionally and mentally unable to cope with or escape from the relationship, the moral culpability of the individual who reacts by killing the abuser is substantially reduced. That reduced culpability must be reflected in the sentence imposed. [Emphasis added]

[115] I agree with this approach to sentencing women who kill their abusive partners, in particular the decisions in Bennett,Craig, and Doonanco. It is beyond time for this Court to explicitly recognize that cases of battered women killing abusive partners involve unique circumstances that must be considered by the sentencing judge, particularly where “battered woman syndrome” is involved. The considerations go beyond the applicability of self-defence and apply to the core question in sentencing: proportionality. Proportionality is informed not only by the seriousness of the offence and its consequences, but also the degree of moral blameworthiness of the offender: R v Lacasse, 2015 SCC 64, para 12, [2015] 3 SCR 1089 [Lacasse]. In these cases, the seriousness of the offence is high: a taking of a human life is always of the utmost seriousness. But often the moral blameworthiness of the offender is not so high.

[118] … In cases of domestic abuse that result in death, the broader context is this: violence in the home, usually perpetrated by a man against a woman over years, can result in her death. Of course, the situation of domestic violence can instead result in what happened in this case: the abused woman kills her abuser. But when that happens, the moral blameworthiness of her actions must nevertheless be judged within the context where the abused woman finds herself.

[119] In addition to proportionality, however, another theme runs through much of the case law: the diminished importance of general deterrence as a sentencing objective in the case of battered women who kill their partners. … Other decisions involving battered women have followed this approach from Whitten and similarly found general deterrence to have little application: Bennett, para 75; R v Getkate, [1998] OJ No 6329, paras 38-41 (QL) (Ont CJ) [Getkate]; R v Cabrera, [2003] OJ No 4510, paras 16-17 (Ont SCJ).

[120] The result has been a large body of case law in which battered women who kill their partners have received sentences for manslaughter that are comparatively low, ranging from a suspended sentence to eight years’ imprisonment: …

Does the 18-year Sentence Bring the Administration of Justice into Disrepute?

[122] To reiterate, I accept that one cannot simply compare the sentence Ms. Naslund would have received after trial with the joint submission to which she agreed. Nor can the propriety of the joint submission be determined on the basis of conventional sentencing principles alone. While the above discussion on battered women in sentencing provides a backdrop against which to consider the fitness of the joint submission sentence, a relevant consideration in the analysis, my first concern must be “the basis for the joint submission, including the important benefits to the administration of justice”: Belakziz, para 18.

Benefits of the Joint Submission

[125] I agree with Ms. Naslund that the benefits of the joint submission, while present, were attenuated in light of the particular circumstances of this case. My reasons are two-fold.

[126] First, women like Ms. Naslund are in a distinctly vulnerable position in plea negotiations. This was not, as the Crown put it, a “typical plea agreement”: Factum of the Respondent at para 52. Rather, as counsel for Ms. Naslund notes, women charged with homicide for killing their abusers face “irresistible forces to plead guilty even though there was evidence that she acted in self defence”: Judge Lynn Ratushny, Self-Defence Review Final Report1 (Ottawa: 1997), 159 [Ratushny].

[127] These forces stem from the risk of facing a mandatory life sentence for murder: ibid …

[128] To this I add that a woman subjected to 27 years of egregious abuse may be accustomed to seeing herself as worthy only of harsh punishment. That does not mean the justice system should follow suit.

[133] There is nothing about the circumstances of this case that would have precluded Ms. Naslund from seeking to avail herself of self-defence as an argument to justify the killing…. [PM Emphasis]

[135] For these reasons, I cannot accept that the benefits of the joint submission provide any obvious or categorical reason as to why an 18-year sentence would be in the public interest. In any event, I must also consider the fitness of the sentence – in order to more definitively determine whether the joint submission is “markedly out of line with the expectations of reasonable persons” even “despite the public interest considerations that support imposing it”:  Anthony-Cook, para 33, citing Druken, para 29.

Fitness of Sentence

[137] I disagree. In my view, the 18-year sentence is demonstrably unfit, being an unreasonable departure from the principle of proportionality: Lacasse, para 53.

[138] Ultimately, the problem with the joint submission is that it fundamentally misconceives the moral blameworthiness of Ms. Naslund by failing to recognize the significantly mitigating circumstances under which she killed her husband. Neither counsel nor the sentencing judge considered the history of domestic violence visited upon Ms. Naslund or its psychological impact in the form of “battered woman syndrome” when assessing her moral blameworthiness.

[150] The list of relevant cases provided by Ms. Naslund’s counsel is long and there is little point recounting them all. However, this selection of similar cases establishes that counsel for Ms. Naslund is correct: no comparable case involving the killing of an abusive partner even begins to approach the length of sentence imposed upon Ms. Naslund. The following is sufficient to illustrate the point.

[158] This case review leaves unanswered the question of how counsel arrived at a joint submission of 18 years’ imprisonment in the case of Ms. Naslund, even accounting for the mandatory four-year minimum sentence now required because a firearm was used in the killing. The record shows that counsel did not present any such case authorities to support the length of the proposed sentence to the sentencing judge, nor did he probe even minimally as to how the sentence was arrived at or whether it fell within the range of sentences for similar manslaughter cases so as to comport with the parity principle.

[159] Crown counsel on appeal was unable to shed any light on this conundrum or provide any explanation for this sentence, other than to state that the facts fall within the highest category of culpability characterization in LaBerge. Some comment is therefore warranted on the ability of LaBerge to justify the sentence in this case.

[165] … This means that an offender is not locked into a specific sentencing range on the basis solely of a LaBerge category and irrespective of their personal characteristics. To do so would succumb to the dangers of categorization described in R v SJB, 2013 ABCA 153, para 19, 544 AR 342, where this Court warned about judges “too readily adopt[ing] convenient pigeon holes in assessing moral blameworthiness” when that concept “does not lend itself to hard and fast categories” and “cannot be assessed according to a grid”.

Conclusion Regarding the Public Interest Test

[168] I conclude that the 18-year sentence is a significant departure from what a fit sentence would be based on conventional sentencing principles and is, at minimum, “demonstrably unfit”. But that is not sufficient to meet the “public interest” test. The threshold is higher. I am keenly aware that the validity of a joint submission cannot be determined simply by comparing it to similar sentencing decisions which do not consider the advantages of joint resolutions: Belakziz, para 21. Therefore, while having found the 18-year sentence is unfit by conventional sentencing principles, I must nevertheless consider whether it is in the “public interest” in light of the benefits of the joint submission.

[169] Certainty is an important value underlying joint submissions and it explains why a high threshold must be reached before courts can reject them: Anthony-Cook,paras 36-42. That said, “[c]ertainty must yield where the harm caused by accepting the joint submission is beyond the value gained by promoting certainty of result”: Anthony-Cook, para 43, citing R v DeSousa, 2012 ONCA 254, para 22, 109 OR (3d) 792 [DeSousa]. A sentence contrary to the public interest “draws the line where certainty of result must give way”:DeSousa,para 22.

[170] In the case of Ms. Naslund, certainty is less important given the unique power imbalance at play in situations where battered women are charged with murder for killing their abusive partners. Moreover, since I am minded to “undercut” the joint submission, the certainty in plea negotiations is of reduced interest from the perspective of the accused: Anthony-Cook, para 52. Accordingly, the value of certainty cannot, in my view, justify this demonstrably unfit sentence. Nor do I believe that undercutting this joint submission will impair the community’s confidence in the administration of justice simply because Ms. Naslund will be allowed to benefit from a guilty plea without serving the agreed sentence: Anthony-Cook, para 52; DeSousa, paras 23-24.

[172] I draw comfort in this view from the eight-year joint submission in Doonanco, a case roughly comparable to that of Ms. Naslund. Here the parity principle takes on far greater significance, as we are now comparing one joint submission with another: Belakziz, para 21. In my view, the disparity between the eight-year sentence given to Ms. Doonanco and the 18-year sentence given to Ms. Naslund is simply intolerable to an informed and reasonable public.

Disposition

[175] Accordingly, the appeal is allowed and the 18-year sentence set aside.

[179] Bearing all this in mind, a sentence of nine years’ imprisonment is imposed upon Ms. Naslund, less time served to date.

R v Chacon-Perez, 2021 ONCA 3

[January 7, 2022] Jury Questions: General Principles and Importance of Fulsome Answer [Reasons by David Watt J.A., with L. B. Roberts and B. Zarnett JJ.A. concurring]

AUTHOR’S NOTE: Jury questions come up at the end of a trial once the lawyers and the judge are usually exhausted by the exertions of the trial and drafting the general charge to the jury. In that state, counsel and judge are likely to want to shut the door on jury questions by encouraging the jurors to: avoid listening to extensive evidence and to ask any more questions. These impulses have to be combatted by counsel as you never know exactly what the jury is driving at. Herein, Justice Watt gives an excellent summary of general principles that reinforce the need for fulsome answers even if that means days of re-listening to evidence. Perhaps the judge may seek clarification of a broad question, but never should they shut the door on the inquiry. 

Introduction and Background

[1] Chad Robinson (“the deceased”) went to a Christmas party. The party was held for employees and subcontractors of a building company. The deceased worked for the company. He was an apprentice plumber.

[2] The appellant also went to the Christmas party. He worked as a flooring subcontractor for the company.

[5] The deceased died at the Christmas party. He died from a single stab wound to the heart.

[6] The Crown alleged that the appellant stabbed the deceased to death. The appellant denied the stabbing. He pointed to his friend, Chicas, as the assailant.

[The evidence of witnesses never came to the point of seeing a stabbing. The closest observations were …]

[32] Danielle Fountain-Smith acknowledged that she was intoxicated at the Christmas party. She remembered that Chicas was running around shirtless. He was aggressive and out of control. At one point she told both the appellant and Chicas that they were both fired. Sometime before the deceased collapsed, she saw a black-handled knife about ten inches in length, in the waistband of the appellant’s pants. She heard the deceased’s head hit the ground, but did not see him fall.

[33] Ms. Fountain-Smith called 911. She told the operator that “the Spanish guys have a knife”. The man with the knife was wearing jeans, but no shirt. A white guy was on the ground and may have been stabbed. …

[40] Jaimini Panday gave evidence that “everybody” was fighting. This included Chicas and the deceased. Both Chicas and the deceased fell on the icy surface. They kicked and punched each other as they regained their footing. Then they fell and got up again. Mike Persaud held the deceased from behind and told him to stop fighting. Then Chicas, who was not wearing any shirt, punched the deceased in the chest. Persaud released his grip on the deceased who fell really hard on his face. The deceased never got up. Chicas also kicked the deceased in the head.

[41] After the deceased fell, Jaimini Panday spoke to Mike Persaud briefly. He told Persaud “I think that guy get [sic] stabbed”. Persaud responded “don’t say anything; that I saw anything; that I was out here”. The Panday family stayed at Persaud’s house that evening.

[42] … He did not come forward when the appellant was charged because he thought it was the shirtless man (Chicas) who had been charged.

[43] According to Mr. Panday, he first found out that the appellant, not Chicas, had been charged when defence counsel (not counsel on appeal) visited at his home. Counsel urged Mr. Panday to give a further statement to police. He declined to do so because he feared that he too would be charged.

The Jury Question

[185] Within two hours of completion of the main charge, and an hour after the brief further instruction, the jury asked a question:

Could we have the court witnesses’ testimony of Danielle, Nicole, Jimini [sic] and Kathy?

The Response of the Trial Judge

[188] When the jury returned to the courtroom, the trial judge read out their question. He responded to it in this way:

We do not have transcripts of the evidence, nor are they capable of being provided. If it is a matter of focusing on specific issues in this regard, I’m going to ask you to consider the testimony of the witnesses as you recall, as assisted by Counsel’s submissions and the charge that I have provided to you which outlines some areas of that evidence.

Practically speaking, to listen to the evidence of these witnesses in their entirety will involve likely a number of days to do so, of hearing the recording if that happened. So what I’m going to direct you to do at this time is to consider the evidence along with the issues that you’re facing as well in this matter, assisted by those submissions and the charge in that regard and we will leave matters at that point, at this time.

So what we are going to do, the best answer then that I can give is that a) we don’t have transcripts available to us, and with respect to providing the audio recording of the evidence we can do so but that will require us to play the evidence of those witnesses, which occupies probably some hours and maybe some days of evidence as well.

So what we want you to do is first to deal with that in view of the instructions that have been provided and some of the outlines of the issues and the facts that have been discussed in the course of that, at this point in time, all right?

[189] The jury asked no further questions. They returned their verdict the following afternoon almost twenty-four hours after they had asked their only question.

The Governing Principles

[195] The principles governing how in-deliberation jury questions should be answered are uncontroversial. Some specific points emerge that are important in the circumstances of this case.

[196]   First, a jury question provides a clear indication of the specific problem that the jury is confronting and on which it seeks the judge’s assistance. The nature of the problems vary. But the nature of the response does not. What is required, after careful consideration of the question and the submissions of counsel, is a clear, correct, and comprehensive answer to the question asked or request made: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 759-750; R. v. S.(W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 528.

[197]   Second, when the jury’s request relates to evidence admitted at trial, the jury is entitled to have the evidence of a witness or witnesses on a particular subject, and the entire evidence of a witness or witnesses if requested, read back or replayed: R. v. Andrade (1985), 1985 CanLII 3502 (ON CA), 18 C.C.C. (3d) 41 (Ont. C.A.), at p. 70.

[198]   Third, where the jury’s question is ambiguous or unclear, the trial judge is entitled to seek clarification and should do so before responding to the question: R. v. B.(N.J.) (2004), 2004 NSCA 23 (CanLII), 183 C.C.C. (3d) 180 (N.S.C.A.), at para. 14; R. v. Fleiner (1985), 1985 CanLII 3633 (ON CA), 23 C.C.C. (3d) 415 (Ont. C.A.), at pp. 420-421; R. v. H.(L.I.), 2003 MBCA 97, 176 C.C.C. (3d) 526, at para. 72; R. v. Shannon, 2011 BCCA 270, 273 C.C.C. (3d) 80, at para. 51.

[200]   In some instances, failure to clarify questions that are unclear or ambiguous may amount to reversible error. This is so not only because of the nature of the response to which the jury is entitled to their in-deliberation questions, but also because the answer they are given, or in some cases refused, is the final word they hear on a problem they have identified in their deliberations: R. v. Kahnapace, 2010 BCCA 227, 255 C.C.C. (3d) 342, at paras. 50, 53.

[201]   Finally, nothing the judge says in responding to the jury’s in-deliberation question should discourage the jury from asking further questions on that or any other subject: R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 97, citing R. v. Layton, 2009 SCC 36, [2009] 2 S.C.R. 540, at para. 33.

The Principles Applied

[202]   Several factors, considered together, persuade me that we should give effect to this ground of appeal.

[203]   First, the subject matter of the jury’s question.

[204]   The jury’s in-deliberation question related to the central, indeed only contested issue at trial: the identity of the person who stabbed the deceased. The evidence at trial, perhaps unsurprisingly in light of the scene observed and the conditions of the observers, lacked consistency. As among the witnesses. And in the evidence of individual witnesses. It resembled a crazyquilt of snapshots of individual events taken from myriad points of vantage by witnesses whose recollections lacked consistency and were tainted in some cases by self-interest and bias.

[205]   The jury’s task required them to recall these disparate renditions, assess the credibility of their authors, determine the reliability of their observations, and apply the burden and standard of proof. By their question, they sought help about the substance of the evidence, including that of Jaimini Panday who identified Chicas as the assailant. The answer of the trial judge gave them no assistance. They had a copy of the charge, including the evidentiary references. This was apparently not enough. But they got no more.

[206]   Second, the failure to seek clarification.

[207]   The omnibus nature of the jury’s request was a clarion call for a response that asked the jury whether they could be more specific about the aspects or subjects of the evidence which they wished to have repeated. The failure to make that request or even ask the jury to consider it in these circumstances was an error.

[208]   Third, the consequences of the failure. In the result, the jury, promised in the charge that their questions would be answered, received no assistance when they said they needed it about a subject on which they were the sole arbiter – whether the appellant killed the deceased.

[209] Finally, both the substance of the trial judge’s response and his failure to remind the jury of its right to ask further questions and to receive answers to them essentially discouraged any further questions during deliberations. This too was an error.

[210]   In these circumstances, I do not consider this a case in which we are entitled to apply the proviso in s. 686(1)(b)(iii) of the Criminal Code.

Disposition

[211]   In the result, I would allow the appeal, set aside the conviction, and order a new trial on the indictment.

R v Downes, 2022 BCCA 8

[January 11, 2022] Voyeurism: Temporal Use of Location [Reasons by Willcock J.A. with Grauer J.A. Concurring and Dickson J.A. Dissenting]

AUTHOR’S NOTE: With the SCC defining a large swath of this offence in Jarvis, this BCCA decision sought to fill one void left in the consideration of the use of the location recorded in respect of time (ie. the normal use of a location can be dependent on the time of day for example). The case turned on the trial judge’s failure to consider whether nudity was expected in a dressing room at the time the photos were taken.

Overview

[2] The appellant was found to have surreptitiously taken photographs (and thereby made a visual recording) of adolescent male hockey players (T.R. and G.C.) in stages of undress in a dressing room while he was coaching spring hockey teams.

[3] The first count charged the appellant with taking photographs in dressing rooms in hockey arenas in Surrey and Coquitlam in June 2013. Those were photographs of T.R., taken when he was about 13 or 14 years old.

[4] The second count charged the appellant with taking photographs in dressing rooms in sports facilities in Coquitlam, New Westminster and Surrey in August 2015. Those were photographs of G.C., taken when he was about 12 years old.

[5] The trial judge found the appellant intentionally took the photographs of T.R. and G.C. The photographs were cropped and transmitted in a manner that clearly indicated they were not taken accidentally.

[6] Both T.R. and G.C. testified that they were not aware that the photographs were being taken and did not consent to them being taken. The trial judge found the photographs were taken surreptitiously.

In the Circumstances There Was a Reasonable Expectation of Privacy

[7] The trial judge concluded there was a reasonable expectation of privacy in the dressing rooms in which the photographs were taken, after considering the non-exhaustive list of criteria to be used in addressing that question enumerated in R. v. Jarvis, 2019 SCC 10. …

[8] The trial judge noted that s. 162(1)(a) requires proof beyond a reasonable doubt that the observation or recording must be made in a place in which a person can reasonably be expected to be nude. She rejected the submission that the offence is not proved unless the Crown establishes that the subject observed or photographed could reasonably have been expected to be nude.

[12] The conviction in this case hinged upon the trial judge’s conclusion that the elements of the offence are established if a surreptitious photograph is taken in a private setting where a person could be reasonably expected to be nude at some time, even when no nudity is expected at the time the observation or recording is made. In other words, not only is it unnecessary for the Crown to prove that the person who is the subject of the recording actually was, or ever had been, nude, it is unnecessary to prove that the accused expected anyone to be nude at the time the observation or recording was made. It is enough to prove that someone at some time could be expected to be nude in the place the recording is made.

Reasonable Expectation of Nudity

[37] The characteristics of a place are not immutable. A room may be used for multiple purposes, and what one expects to observe at the place will depend upon how the place is being used when the observation is made.

[39] However, does one who surreptitiously takes a still photograph (by, for example, using a cellphone) of a fully clothed person in a dressing room when no one else is present or expected to be present commit the offence described by
s. 162(1)(a)?

[40] … The relevant inquiry, in my opinion, is whether the place can accurately be characterized, at the time of the use in question, as a place in which a person can reasonably be expected to be nude. If so, then the section applies even if there is no nudity, as discussed by Juriansz J.A. in Trinchi. But if there was no nudity, and nudity could not reasonably be expected during the course of the relevant use, then it is a different matter.

[41] To hold otherwise is to capture conduct that does not bear any of the hallmarks of voyeurism as a breach of sexual privacy: the surreptitious observation or recording of nudity or sexual activity or attempts to observe or record nudity or sexual activity. It is true that s. 162(1)(a) must be read in a manner that captures activity that does not fall within s. 162(1)(b) or (c). It must, therefore, capture recording of individuals who are not wholly or partially nude or engaged in sexual activity, and it must capture recording or observation that cannot be proven to have been engaged in for a sexual purpose. But does it capture surreptitious observation or recording in a place when nudity is notexpected at the time of observation or recording, but it may be expected later under different circumstances?

[43] While it is clear from the wording of the provision and the judgment in Jarvis that s. 162(1)(a) implicates territorial privacy and it is concerned with protecting privacy in particular places, it remains for us to define the temporal component of the offence.

[54] The provisions are fundamentally concerned with bodily and sexual privacy, and, as appellant’s counsel contends, are not intended to establish offences founded upon an invasion of privacy alone. If careful attention is not paid to the characteristics of the place in which the observation or recording is made, given its use at the time of the observation or recording, there is a risk that s. 162(1)(a) will be read in a manner that criminalizes conduct that was neither engaged in for the purpose of, nor resulted in, the observing or recording of nudity or sexual activity. While the appellant’s conduct was undoubtedly a breach of trust and invasive of privacy, that does not necessarily make it conduct that this section criminalizes as a sexual offence.

Conclusion

[55] While it was open to the trial judge to find nudity was expected in the dressing room in which the offences were found to have occurred, the conflicts in the evidence regarding whether nudity was expected at the time the photos were taken were not addressed. In my opinion, a conviction cannot be founded solely upon evidence that at some time nudity was expected in the dressing rooms in question. For that reason, I would allow the appeal, set aside the conviction, and order a new trial.

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