This week’s top three summaries: R v Wilde, 2022 SKCA 74: excessive #intervention & insufficient #assistance, R v Laprise, 2022 SKCA 77: failure to consider #Gladue and Acc evidence, and R v MM, 2022 NSCA 46: YCJA sex assault #sentencing.
This week’s top case deals with issues that arise in appellate litigation. For great general reference on the law of appeals, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
Criminal Appeals: A Practitioner’s Handbook
By Mark C. Halfyard, Michael Dineen & Jonathan Dawe
R v Wilde, 2022 SKCA 74
[June 27, 2022] Appeals: Excessive Judicial Intervention and Insufficient Assistance to Self-Represented Accused [Reasons by Schwann J.A. with Ryan-Froslie and Kalmakoff JJ.A. concurring]
AUTHOR’S NOTE: Having been asked by a appellate court judge with some irony that I once complained both of excessive intervention and insufficient assistance on an appeal, I am happy to have found a case where both deficiencies were recognised in the same matter. In fact, the root of the problem in such cases is often the same – the judge becomes inappropriately engaged on one side of the matter to the detriment of the accused and both intervenes for the Crown and fails to assist the accused where they should. Here, the trial judge incorrectly failed to advise the self-represented accused that a reasonable doubt could arise from an “absence” of evidence and then interjected in the cross examination of the main complainant effectively discouraging further questioning of the witness and suggesting that there was not much point cross-examining on the basis of a previous statement provided in disclosure (because the trial would be decided on testimony given in court). The trial judge’s suggestion had the effect of dissuading the accused from further cross-examination. The trial judge then asked a series of questions regarding substance use which served to rehabilitate the witness thereby entering the fray and intervening excessively. The excessive intervention piece is also a useful thing to keep in mind for counsel engaged in a trial as it can be used in application for a mistrial for reasonable apprehension of bias.
I. Introduction
[1] Jason Delaney Wilde was charged with aggravated assault contrary to s. 268 of the Criminal Code. Mr. Wilde was convicted following a judge-alone trial before a Provincial Court judge in which he was not represented by counsel. He was sentenced to 18 months of incarceration.
[2] Mr. Wilde, who is now represented by legal counsel, appeals from his conviction. He argues that the trial judge made two distinct, but related, errors. First, he says the trial judge failed to discharge the duty owed to him as an unrepresented accused to ensure that he received a fair trial. He submits the trial judge frustrated his attempts to adequately respond to the case against him in a way that had a significant impact on his ability to conduct and present his defence. Second, Mr. Wilde argues that the trial judge neglected to follow the Supreme Court’s guidance in R v W.(D.), [1991] 1 SCR 742 [W.(D).], by impermissibly treating his evidence and that of the complainant as a credibility contest.
II. Background
[4] The events that gave rise to the charge against Mr. Wilde took place on June 9, 2020, and in the early morning hours of the following day and involved him, Justin Harty and Jason Metz. All three individuals were tree planters operating in northern Saskatchewan and were well-known to each other.
[6] Mr. Harty’s ribbing led to a heated argument between himself and Mr. Wilde while they were in Mr. Metz’s SUV. Mr. Metz, who was also in the SUV, described their interaction as “a couple old friends just, you know getting at each other”. He thought Mr. Harty had started the argument and was quite certain that Mr. Harty had been speaking to Mr. Wilde in a condescending manner.
[7] At some point in the course of their heated exchange, Mr. Wilde and Mr. Harty left the Metz vehicle….
[8] Mr. Metz testified that he saw Mr. Wilde sucker punch Mr. Harty in the jaw with a closed fist, which caused Mr. Harty to go down. According to Mr. Metz, when Mr. Harty got back up, Mr. Wilde jumped on him, threw a few more punches and put him in a headlock. Mr. Metz said that Mr. Harty had assumed a turtle-like position while this was happening, as if to protect himself from Mr. Wilde.
[9] Mr. Harty’s testimony about the events that unfolded once he and Mr. Wilde left the vehicle was largely consistent with that of Mr. Metz….
[11] Mr. Wilde testified on his own behalf at trial. There was much agreement around the edges of what had transpired that evening, including the fact that the parties had been drinking, had engaged in an argument, that a physical altercation had occurred between him and Mr. Harty, and that their brawl had resulted in an injury to Mr. Harty’s jaw. Mr. Wilde denied punching Mr. Harty or giving him a black eye. He was adamant that Mr. Harty was the aggressor throughout and that he had simply acted in self-defence by placing him in a headlock to protect himself until Mr. Harty calmed down. However, during cross-examination, Mr. Wilde conceded that Mr. Harty did not have a black eye in the early evening and that his physical contacts were the two chokeholds. When asked by Crown counsel how Mr. Harty had sustained a black eye, Mr. Wilde surmised it could have happened when he (Mr. Harty) fell to the ground.
[12] Mr. Wilde questioned how Mr. Metz could have seen the altercation from inside his vehicle because, contrary to Mr. Metz’s testimony, he said the fight had taken place behind the SUV, not in front of it….
V. The Law
A. Miscarriage of justice
[16] At root, Mr.Wilde asks this Court to exercise the powers reposed in it under s. 686(1)(a)(iii) of the Criminal Code to set aside his conviction on the basis of a miscarriage of justice. There is no set formula for what amounts to a miscarriage of justice in any given situation: R v Khan, 2001 SCC 86 at paras 69–87, [2001] 3 SCR 823. As discussed by Cromwell J.A. (as he then was) in R v Wolkins, 2005 NSCA 2, 192 CCC (3d) 378, a miscarriage of justice is generally grouped into two broad categories. The first examines whether the trial was fair and the second refers to the administration of justice – that is, whether an event that occurred in the course of a trial is so serious that “it shakes public confidence in the administration of justice” (at para 89). The focus is on the gravity of the irregularity, and the effect it may have had on trial fairness rather than the strength of the Crown’s case.
[17] A finding that a miscarriage of justice has occurred can arise from an appearance of trial unfairness. An appellant need not show actual prejudice. This point was addressed in R v Quintero- Gelvez, 2019 ABCA 17, 370 CCC (3d) 411 [Quintero-Gelvez]:
[6] … Actual prejudice from an error of law is not a prerequisite to a finding that a miscarriage of justice has occurred; such a finding may be founded where an appearance of unfairness arises; see R v Duke, 1985 ABCA 187 at para 21. An appearance of a miscarriage of justice requiring appellate intervention exists where the irregularities would be such as to taint the administration of justice in the eyes of a reasonable and objective observer. The issue is whether a well-informed, reasonable person considering the whole of the circumstances would have perceived the trial as being unfair or as appearing to be so; see R v Spiers, 2012 ONCA 798 at para. 32.
See also Khan at para 73 and R v Moosomin, 2008 SKCA 168 at paras 25–27, [2009] 1 WWR 577.
B. Duty to assist a self-represented accused
[18] Where an accused is self-represented at trial, a trial judge is required to ensure the trial is fair and that there is no miscarriage of justice. That includes the duty to render some level of assistance so that the defences available to an accused are presented with full force and effect. However, an allegation that a trial judge has failed to assist a self-represented accused does not give rise to a free-standing ground of appeal. The overarching focus must remain on the question of trial fairness and whether the alleged failure to assist rendered the trial unfair: see R v Bialski, 2018 SKCA 71 at para 47, 364 CCC (3d) 485 [Bialski], leave to appeal to SCC refused, 2019 CanLII 11813; R v Olenick, 2010 MBCA 107 at para 7, 262 Man R (2d) 15 [Olenick]; and R v DRS, 2018 ABCA 342 at para 18, 368 CCC (3d) 383.
[19] The legal principles and scope of a trial judge’s duty to assist a self-represented accused were most recently explored by Kalmakoff J.A. in R v Cathcart, 2019 SKCA 90, 380 CCC (3d) 357 [Cathcart], where he said as follows:
[77] Deciding how much assistance a judge should give to a self-represented accused person is an exercise in discretion. A trial judge is not counsel for the accused, and cannot provide assistance of the sort that counsel would furnish, but there is a duty … to ensure that the accused has a fair trial. This duty is circumscribed by a standard of reasonableness: R v Richards, 2017 ONCA 424, 349 CCC (3d) 284 [Richards]. What this standard requires from a trial judge will vary from case to case. It will depend on the dynamics of the trial in question, the circumstances of the particular accused, and the nature of the charges: Harris at para 29.
[21] Not every breach of a trial judge’s obligation will render the trial unfair or result in a miscarriage of justice. As noted in Forrester, “It is the cumulative effect of any errors that the court needs to consider …” (emphasis in original, at para 17) in determining if the lack of guidance “‘compromised the accused’s ability to bring out [their] defence’” with full vigour and effect (at para 17, quoting Olenick at para 8).
VI. Application of The Law
A. Insufficient assitence
[23] Mr. Wilde argues the trial judge compromised his ability to properly advance his defence with full force and effect in multiple ways. Although the trial judge provided lengthy verbal instructions at the outset of the trial, Mr. Wilde claims those instructions were (a) incomplete, insofar as they failed to inform him of the elements of aggravated assault, and (b) provided a misleading explanation of the concept of reasonable doubt. In addition to these shortcomings in the instructions, the trial judge is said to have unduly interfered with Mr. Wilde’s cross- examination of two of the witnesses and improperly interjected himself into the trial. Taken together, Mr. Wilde argues, the oversights or errors rendered his trial unfair and resulted in a miscarriage of justice. I will deal with each allegation in turn.
1. Failure to mention the elements of the offence
[25] …In fact, I could find no case in which a new trial was ordered on that basis” (at para 28). A similar argument was advanced but rejected by this Court in Harris (at para 32).
[26] Setting aside the question of whether the trial judge was obliged to identify and explain the elements of the offence, I fail to see how this omission impaired the way in which Mr. Wilde conducted his defence. There is nothing in the record that would suggest that Mr. Wilde was unaware of what the Crown had to prove….
2. Instruction on the standard of proof
[28] Next, Mr. Wilde argues the instructions that were provided by the trial judge in relation to the standard of proof and reasonable doubt were wrong in law. He says the following passages from the instructions demonstrate this error:
When all of the evidence has been introduced, the Crown may call its case, you may call no evidence. You may be content to say the Crown’s case is so weak, that you don’t wish to call any evidence whatsoever. There’s a bit of a risk to that, because that means that I’ve only heard the evidence and I must decide the case based on the evidence. I can’t speculate. I can’t guess. I have to make a decision based on what I’ve heard.
When we say reasonable, we say that any doubt as to the Crown establishing proof must be based on admissible evidence, accepted evidence. That’s what reasonable means. It means that it has to be based — that the doubt has to be based on evidence. So, you see, again, while all kinds of things are possible, I’m not permitted to speculate to establish a doubt, there must be a basis for that doubt.
(Emphasis added)
[29] The Crown properly concedes that those passages are inconsistent with the law. In R v Lifchus, [1997] 3 SCR 320, the Supreme Court made it clear that a reasonable doubt can arise from the evidence or from the absence of evidence: “It will suffice to instruct the jury that a reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence” (emphasis added, at para 30).
[31] I am satisfied that, by not explicitly instructing Mr. Wilde that a reasonable doubt can arise from the absence of evidence, the trial judge provided an incorrect statement of the law. This error may have left Mr. Wilde with the impression that he had to adduce positive evidence in order to defend himself against the charge….
[32] I agree with Mr. Wilde. I am not persuaded that the trial judge’s subsequent instructions cured his earlier misstatements. While the operation of a defence like self-defence involves legal subtleties that may be difficult for a layperson to understand, it is little more than speculation to say that, even with proper instructions, Mr. Wilde would have been incapable of grasping the significance of the reasonable doubt concept in the overall context of his defence. It is important to bear in mind that Mr. Wilde had no prior legal training, and, as noted above, a correct instruction may well have affected his trial strategy by causing him to highlight the deficiencies and inconsistencies in the Crown’s evidence that could have led to a finding of reasonable doubt.
3. Interference with Mr. Wilde’s cross-examination of Cpl. Dunphy
[34] The thrust of Cpl. Dunphy’s testimony concerned her observations of Mr. Harty’s physical state at that time. She said he was upset, agitated and had trouble speaking. She noted that he had a bruised, swollen eye, and, even though Mr. Harty had a beard, she could see that he was unable to fully open his mouth when speaking and that he was cradling his jaw. Corporal Dunphy surmised that he was in a great deal of pain. She said Mr. Harty declined to provide a police statement at that time as he was focussed on returning home for medical care.
[35] Mr. Wilde attempted to impeach Mr. Harty’s credibility through his cross-examination of Cpl. Dunphy. He started by asking Cpl. Dunphy if Mr. Harty was impaired and then quickly moved on to a new line of questions, presumably intended to elicit what Mr. Harty had said to her at the time. Corporal Dunphy expressed hesitancy with answering those questions – perhaps because she viewed them as hearsay – but, when pressed, said she could not remember his exact words.
[36] …The trial judge interjected at this point as follows:
THE COURT: Okay? So, when you refer to disclosure and it’s not here and it’s not there, you have to be careful how you use that, because I am not going to decide this case based on the papers in front of you.
THE ACCUSED: Okay.
THE COURT: I’m going to decide the case based on what I hear in the witness box. And it might be that a witness may say, I don’t recall what was said, or — or have a different version, not the precise version of what may have transpired as set out in the disclosure. That’s not likely going to be of great concern.
THE ACCUSED: Yeah.
[37] After receiving the trial judge’s instruction, Mr. Wilde said he had no further questions for Cpl. Dunphy….
[38]…However, as Mr. Wilde submits, the trial judge failed to provide him with any sort of guidance on how to use a complainant’s prior statement. Instead, the trial judge told him that he was going to decide the case based on what he heard in the witness box, and then stated “that’s where that ends” when a witness says they cannot recall something. Viewed as a whole, Mr. Wilde asserts this direction severely impaired his ability to make full answer and defence because he took the trial judge to have instructed him that any attempt to impeach the credibility of a Crown witness was futile, and by shutting down his attempts to draw out evidence of Mr. Harty’s memory limitations from Cpl. Dunphy.
[39] There is merit to Mr. Wilde’s arguments. This case turned on the credibility and reliability of the complainant, Mr. Harty. Although the cross-examination of Cpl. Dunphy was brief and somewhat awkward, it is clear that the trial judge’s interjections had an obvious chilling effect on Mr. Wilde: it deterred him from putting to her any further questions that were designed to discredit Mr. Harty’s evidence by pointing to what he perceived to be inconsistencies in Mr. Harty’s prior statement. However, instead of providing Mr. Wilde with an explanation on how to make use of a prior inconsistent statement, the trial judge shut down that line of questioning by stating as follows: “I’m going to decide the case based on what I hear in the witness box. And it might be that a witness may say, I don’t recall what was said, or — or have a different version, not the precise version of what may have transpired as set out in the disclosure. That’s not likely going to be of great concern” (repeated here for reference).
[41] …This point was emphasized in R v Osolin, [1993] 4 SCR 595 [Osolin], where Cory J., in concurring reasons, stated as follows (at 663):
There can be no question of the importance of cross-examination. It is of essential importance in determining whether a witness is credible. Even with the most honest witness cross-examination can provide the means to explore the frailties of the testimony. … It is the ultimate means of demonstrating truth and of testing veracity. Cross-examination must be permitted so that an accused can make full answer and defence. The opportunity to cross-examine witnesses is fundamental to providing a fair trial to an accused. This is an old and well-established principle that is closely linked to the presumption of innocence.
[43] In Osolin, the Supreme Court commented on the enhanced importance of cross- examination where credibility is the central issue at trial by describing it as “all the more crucial to the accused’s ability to make full answer and defence …” (at 664). Indeed, the right to cross- examination constitutes a principle of fundamental justice that is “critical to the fairness of the accused’s trial” (at 664): see also R v Esau, 2009 SKCA 31 at para 17, 324 Sask R 95.
[44] A trial judge’s failure to explain the use that could be made of a complainant’s prior out- of-court statements, or inconsistencies in preliminary inquiry testimony, was raised in R v Buzzard, 1999 BCCA 679, 131 BCAC 199. There, the British Columbia Court of Appeal was critical of the trial judge’s failure to assess the self-represented accused’s level of understanding about the elements of the offence, the Crown’s onus and the burden it bore to prove the case beyond a reasonable doubt. That court found the explanation provided by the trial judge to be weak and one that “assumed sophistication on the part of the appellant which was unwarranted” (at para 6). However, what the Court found most troubling about the conduct of the trial was the trial judge’s failure to explain the use that could be made of a prior out-of-court statement and testimonial inconsistencies. Taken as a whole, the Court was not satisfied that the trial judge had assisted the accused such that his defence was brought out with full force and effect. The appeal from conviction was accordingly allowed.
[45] In my view, the trial judge’s intervention in this case was significant for several reasons.
[46] First, Mr. Wilde was a self-represented accused who had no known training or knowledge of court-room procedures or trial strategies….
[47] Second, although the trial judge’s interventions appear to have been well-intentioned, they may have had the effect of intimidating Mr. Wilde to the point where he was deterred from asking any further questions….
[48] While trial judges must remain neutral and cannot become an advocate for the accused, they have a duty to ensure that the trial is fair and are obliged to provide some measure of assistance to a self-represented accused. In this case, given the seriousness of the charge, and the fact that the outcome of the trial came down to credibility, the trial judge’s interjections and comments during the cross-examination of Cpl. Dunphy called for more. The instructions and comments were not only inadequate and unhelpful, they were also misleading.
[51] Mr. Wilde submits those questions were leading and prejudicial. He relies on R v Switzer, 2014 ABCA 129, 310 CCC (3d) 301, for the proposition that where a trial judge asks leading questions or where the effect of the questioning is to blur the line between judge and counsel, “trial fairness [is] undermined” (at para 15).
[52] A trial judge is permitted to intervene in limited circumstances. Switzer framed the boundaries of appropriate intervention in this way:
[13] We acknowledge that trial judges may intervene to clarify an unclear answer, to resolve a misunderstanding of the testimony, to ask questions if counsel fails to address an issue, to correct inappropriate conduct by counsel or witnesses, and to otherwise ensure a fair trial. However they must not do so in a manner that undermines the function of counsel and that disrupts or destroys counsel’s strategy ….
[53] The Alberta Court of Appeal in R v Schmaltz, 2015 ABCA 4, 320 CCC (3d) 159, provided additional guidance on the scope and effect of judicial intervention, by reference to the following principles:
[19] In this case, where trial unfairness is said to arise in part from the trial judge’s interventions in defence counsel’s cross-examination of a witness, several principles ought to be borne in mind:
(1) The right of an accused to present full answer and defence by challenging the Crown’s witnesses on cross-examination flows from the presumption of innocence and the right of the innocent not to be convicted: R v Seaboyer, [1991] 2 SCR 577 at para 39, [1991] SC J No 62 (QL); Osolin at para 25. This is particularly so when credibility is the central issue in the trial: Osolin at para 27, citing R v Giffin, 1986 ABCA 107, 69 AR 158 at 159.
(2) The trial judge may intervene in certain instances, including to clarify an unclear answer, to resolve misunderstanding of the evidence, or to correct inappropriate conduct by counsel or witnesses. …
(3) When the trial judge does intervene, he or she must not do so in a manner which undermines the function of counsel, that frustrates counsel’s strategy, or that otherwise makes it impossible for defence to present the defence or test the evidence of Crown witnesses: Valley [(1986), 26 CCC (3d) 207 (Ont CA)] at para 55; R v Brouillard, [1985] 1 SCR 39 at 44–47; R v Konelsky, 98 AR 247 at 248, 68 Alta L R (2d) 187 (CA).
(4) If a trial judge “enters the fray” and appears to be acting as an advocate for one side this may create the appearance of an unfair trial: R v Switzer, 2014 ABCA 129 at para 7, 572 AR 311 [Switzer].
(5) In determining whether the trial judge’s interventions deprived the accused of a fair trial, those interventions should not be considered separately and in isolation from each other, but cumulatively: R v Khan, 2001 SCC 86 at para 77, [2001] 3 SCR 823 [Khan]; R v Stucky, 2009 ONCA 151 at para 72, 303 DLR (4th) 1, R v Watson (2004), 191 CCC (3d) 144 at para 14, 192 OAC 263. The concern here is that incidents which, considered in isolation, might be viewed as insignificant might combine to lead a reasonably minded person to consider that the accused had not had a fair trial: Khan at para 76; R v Stewart (1991), 62 CCC (3d) 289 at para 46, 1991 CarswellOnt 1317 (CA) [Stewart].
[20] The test for considering a ground of appeal citing trial unfairness depends on the kind of unfairness alleged. Here, the question to be answered is whether the appellant’s right to make full answer and defence was breached by significant and unwarranted constraints imposed by the trial judge upon defence counsel’s cross examination of the complainant: Lyttle at 196.
[54] Returning to the matter at hand, while some of the questions posed by the trial judge were matters of clarification (e.g., whether sniffing tobacco is the same thing as a tobacco commonly used in North America), in my view, the queries that followed exceeded that purpose. For instance, the trial judge asked Mr. Harty about what sort of effect sniffing tobacco might have on a person, what else Mr. Harty saw Mr. Wilde consume that night, whether he saw Mr. Wilde consume the mushrooms, and whether he (Mr. Harty) had also participated in the consumption of these items.
[55] In my view, the questioning could be seen as giving the impression that the trial judge was supplementing the Crown’s case and thereby appearing as though he was acting as an advocate for it. Furthermore, his intervention was centrally important to the case because it served to bolster Mr. Harty’s testimony, which was highly significant because, as noted, the trial turned on credibility.
[56] Respectfully, the judicial intervention went too far. However, the question I must remain focussed on is whether it compromised Mr. Wilde’s right to make full answer and defence or made the trial unfair. On its own, the interventions may not have risen to that level; but, as discussed below, I must assess trial fairness from the perspective of the cumulative actions or inactions of the trial judge.
6. Conclusion on insufficient assistance
[67] As this Court noted in Harris, the question of whether a self-represented accused received sufficient assistance from a trial judge “cannot be properly answered by developing and relying on a rigid list of steps that a judge must undertake when dealing with such accused. Rather, the obligation of a judge must be determined with reference to the dynamics of the trial in question, the circumstances of the particular accused and the nature of the charges” (at para 29).
[68] This was a serious charge. Mr. Wilde was, by all accounts, a self-represented accused, who was unfamiliar with the law or trial procedure. He did not have the benefit of a pre-trial conference where some of these matters could have been explored in a non-adversarial environment. Setting aside Mr. Wilde’s submission arguments about Browne v Dunn, the remainder of his arguments, taken together, have strength. In the end result, it is not possible for me to say what, if any effect, a more focussed cross-examination would have yielded or if better instructions would have led to an acquittal. All that can be said is that if Mr. Wilde had been given the correct information about the concept of reasonable doubt, and some guidance with cross-examination, had understood that he did not have to adduce a positive defence, and the trial judge had not interjected in the way that he did, Mr. Wilde may have been able to bring out his defence with more force and effect. I find the cumulative effect of these trial transgressions resulted in an unfair trial for Mr. Wilde and that his conviction must, therefore, be set aside on the basis of a miscarriage of justice.
VII. Conclusion
[70] Mr. Wilde’s appeal is allowed, his conviction is set aside, and a new trial is ordered.
R v Laprise, 2022 SKCA 77
[June 30, 2022] Sentencing: Judicial Obligation to Consider Accused Evidence and Gladue Principles [Reasons by Kalmakoff J.A. with Caldwell and Schwann JJ.A. concurring]
AUTHOR’S NOTE: Judges have an obligation to actually consider the evidence of an accused and Gladue principles. Correctly stating the requirement to consider Gladue does not show sufficient engagement with that aspect of the law. There must be actual weighing of the that evidence visible in the reasons of the trial judge. Here the judge’s failure to engage with any of the evidence of the accused caused the Court of Appeal to intervene on both principles.
I. Introduction
[1] Michael Laprise appeals against the decision of a Court of Queen’s Bench judge that found him to be a dangerous offender and sentenced him to an indeterminate period of imprisonment (R v Laprise (21 October 2020) Saskatoon, CRM 398/2017, CRM 444/2017, CRM 88/2018 (Sask QB) [Decision]).
II. Background
A. The Offences
[3] In the proceedings that led to the Decision, Mr. Laprise was found guilty of a total of seven offences arising from three separate incidents. The circumstances of the offences can be summarized as follows.
1. November 28, 2016: Assault with a weapon and mischief
[4] On November 28, 2016, Mr. Laprise walked into a restaurant in Saskatoon at around 7:00 p.m. He went to the bar and ordered a drink. The bartender asked him for his identification. This led to an argument. Mr. Laprise went outside, retrieved a can of bear spray, and returned to the bar area. He discharged the bear spray twice, once at the bartender and once into the general seating area. The bartender was struck by the discharge. Several patrons were also affected. Bear spray, when used against another person, is a prohibited weapon. At the time of this incident, Mr. Laprise was prohibited from possession of such items by virtue of two separate existing court orders.
2. January 18, 2017: Robbery, assault causing bodily harm, and use of an imitation firearm in the commission of an offence
[6] On January 18, 2017, Mr. Laprise and another man entered a bank in Saskatoon, positioned themselves behind the tellers and demanded money. Mr. Laprise was brandishing what appeared to be a handgun. He struck a bank employee in the head with it, and the employee fell to the ground, bleeding. Another employee took steps to get Mr. Laprise the money. Mr. Laprise and his accomplice then left after chastising the bank employees for not handing over as much money as they had demanded.
2. January 18, 2017: Robbery, assault causing bodily harm, and use of an imitation firearm in the commission of an offence
[8] On January 22, 2017, Mr. Laprise, two other men and two women went to a restaurant in Saskatoon, arriving between 8:00 p.m. and 9:00 p.m. His cohorts played the VLTs and drank in the bar/lounge area. At some point, one of the other men produced a knife and demanded that the bartender open up the till. The bartender complied and handed over more than $3,900 in cash from the till. The knife-wielding man also took $500 in cash from another bystander at the bar. Mr. Laprise assisted his cohorts by pulling out a can of bear spray and threatening the other patrons in the bar, so that they would not interfere. Mr. Laprise tried to get his accomplice to return the $500 that he had taken from the customer. The accomplice later took the bartender back to the restaurant’s office area, at knifepoint, and robbed him of another $13,498 in cash and some sports memorabilia. While this was going on, Mr. Laprise continued to yell and threaten patrons, waved around the bear spray, stole some liquor from behind the bar, and ripped out electronic equipment that he thought was part of the security system.
B. The Sentencing Hearing
[10] As noted, Mr. Laprise was found guilty after trial of the matters arising out of the January 18, 2017, incident. He then entered guilty pleas in relation to the charges arising out of the November 28, 2016, and January 22, 2017, incidents. The Crown sought an assessment order under s. 752.1 of the Criminal Code, in contemplation of an application under Part XXIV with respect to sentencing. The sentencing judge ordered that the assessment be conducted by Dr. Alberto Choy, a forensic psychiatrist.
[11] Following the receipt of Dr. Choy’s report, the Crown applied to have Mr. Laprise declared a dangerous offender and to be sentenced to an indeterminate prison term….
[12] At the sentencing hearing, the Crown tendered as evidence an agreed statement of facts, Mr. Laprise’s criminal record, and binders containing documents and court records that set out the circumstances of Mr. Laprise’s prior convictions. Notably, in that respect, Mr. Laprise’s criminal record contains more than 70 convictions, in addition to the offences that were the subject of the sentencing hearing. He has a significant history of offences involving violence or weapons, including 6 previous convictions for robbery, as well as convictions for assault, various weapons-related offences, and offences against the administration of justice, namely, breaching probation orders, breaching weapons or firearms prohibitions, breaching bail conditions, being unlawfully at large, and failing to appear in court.
[13] Of particular relevance to the Part XXIV proceedings, Mr. Laprise’s criminal history includes a series of offences for which he was sentenced on September 10, 2008. On that day, Mr. Laprise pleaded guilty to several charges, including three counts of robbery, three counts of breaching bail conditions, and one count each of kidnapping, possession of a weapon for a dangerous purpose, assault, possession of a stolen car, and failing to remain at the scene of an accident. These charges stemmed from six different incidents that occurred between late November of 2006 and late April of 2007. For this series of offences, he received an aggregate sentence of nine years, reduced by 32 and one-half months, to account for pre-sentence custody, along with a lifetime firearms prohibition order.
[14] Also included in Mr. Laprise’s criminal history are a series of offences that he committed on January 27, 2017 (i.e., after the offences that were the subject of the dangerous offender proceedings)…
[16] Dr. Choy was called to testify respecting his assessment of Mr. Laprise. His report was also tendered as evidence. By way of summary, Dr. Choy’s opinion was that Mr. Laprise is afflicted with severe antisocial personality disorder and substance use disorder. He testified that Mr. Laprise has “some genetic loading” for substance abuse and behavioural problems, including impulsivity. In the light of his clinical assessment and the results generated through administering various risk assessment tools, Dr. Choy concluded that Mr. Laprise posed a high likelihood for future violent offending…
…Dr. Choy opined that, based on Mr. Laprise’s history of offending, and this clinical presentation, he met the criteria for designation as a dangerous offender under either s. 753(1)(a)(i) or 753(1)(a)(ii) of the Criminal Code. He also noted that Mr. Laprise’s personality traits were relatively ingrained and that he had demonstrated little empathy for others in the past. He expressed the view that it would be difficult to imagine Mr. Laprise making and sustaining the wholesale changes that would be required in order for his risk to be controlled in the community.
[17] Mr. Laprise also testified at the sentencing hearing. He spoke about his childhood, his family history, his current intimate relationship, his past offences, and his plans for the future. Of particular relevance, Mr. Laprise testified about where he planned to live, how he proposed to address his substance abuse issues, how he intended to distance himself from negative associates, his plan for upgrading and deploying his employment skills, and what motivated him to make the changes necessary to alter the direction of his life in a positive way. He also spoke about his efforts to reconnect with his Indigenous heritage and the way in which he believed those efforts would assist him in his rehabilitation and eventual successful reintegration into the community. [Emphasis by PJM]
C. The Decision
[23] The sentencing judge made no direct reference in the Decision to any of the testimony given by the Correctional Service Canada witnesses, and no reference whatsoever to the testimony of Mr. Laprise.
IV. Analysis
[26] As I will explain, I am of the view that the sentencing judge erred in the ways that Mr. Laprise suggests. A new hearing must be the result.
B. Did sentencing judge err by failing to consider Mr. Laprise’s evidence?
[29] Dangerous offender proceedings are sentencing proceedings. As in any sentencing hearing, it is the duty of the judge in a dangerous offender proceeding to determine a fit sentence. Section 723(2) of the Criminal Code requires that a court “shall hear any relevant evidence presented by the prosecutor and the offender” when determining a sentence. Section 726.1 says that “in determining the sentence, a court shall consider any relevant information placed before it, including any representation or submissions made by or on behalf of the prosecutor or the offender”.
[30] In addition to this explicit statutory direction, the jurisprudence is clear that a failure by a judge to consider all of the evidence, in any proceeding, is an error of law (see, for example: R v Walle, 2012 SCC 41 at para 52, [2012] 2 SCR 438 [Walle]; R v Cote, 2015 SKCA 52 at para 52, 457 Sask R 237; and R v Choli, 2016 SKCA 64 at para 46, 480 Sask R 73 [Choli]). In the context of dangerous offender proceedings, it is an error of law to fail to consider evidence relevant to treatability and manageability at either the designation or penalty stage (see, for example: Boutilier at paras 43–44; R v Bird, 2021 SKCA 35 at para 20; Starblanket at para 67; and R v Daniels, 2011 SKCA 67 at para 50, 375 Sask R 1).
[31] …A judge is not required to refer to every item of evidence they consider or to detail the way each item of evidence was assessed. Unless the record demonstrates that consideration of all the evidence in relation to the ultimate issue was not done, the failure to record the fact of it having been done is not a proper basis on which to find legal error (R v J.M.H., 2011 SCC 45 at paras 31–32, [2011] 3 SCR 197; Walle at para 52). However, where the record, including the reasons for judgment, discloses a lack of appreciation of the relevant evidence or the complete disregard of such evidence, it is appropriate for an appellate court to intercede (R v Harper, [1982] 1 SCR 2 at 14; Choli at para 49).
[32] In this case, Mr. Laprise’s testimony was unquestionably relevant to the issues the sentencing judge had to decide. It spoke to matters pertaining both to whether designation as a dangerous offender was appropriate and what sort of penalty should be imposed. Much of what Mr. Laprise had said stood in contrast to, or provided an explanation for, what the Correctional Service Canada witnesses had recounted about his performance while in custody and on supervision. It also provided evidence about Mr. Laprise’s background and his plans going forward that needed to be carefully considered and weighed in conjunction with Dr. Choy’s evidence. In particular, the sentencing judge needed to engage with Mr. Laprise’s evidence to determine whether it gave him reason to question or reject what Dr. Choy had said regarding such things as Mr. Laprise’s treatability or the prospect of the eventual control of his risk in the community.
[33] But the Decision does not reveal any such engagement. While the sentencing judge explicitly stated that he accepted the evidence set out in Dr. Choy’s report, it is not possible to reasonably read his reasons as demonstrating that he reached that conclusion by implicitly rejecting the evidence given by Mr. Laprise, or by implicitly finding that Mr. Laprise’s evidence did not displace Dr. Choy’s opinions. I say this, in large part, because Dr. Choy’s report is the only evidence mentioned in any way in the Decision. In 41 pages, the Decision contains not one single mention of the testimony given by Mr. Laprise. In a dangerous offender proceeding, where the offender testifies about crucial matters, as Mr. Laprise did here, it is vital that the court assess that evidence and weigh it in determining the proper sentence to impose. In my view, there is simply no way to read the Decision as establishing that the sentencing judge undertook that assessment. Instead, he appears to have completely disregarded Mr. Laprise’s evidence and to have deferred entirely to Dr. Choy’s clinical opinion. That was an error of law.
C. Did the sentencing judge err by failing to consider and apply s. 718.2(e) of the Criminal Code?
[34] Section 718.2(e) of the Criminal Code requires that, for all offenders, sentencing judges must consider “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victims or to the community”, and that in this consideration, they give “particular attention to the circumstances of Aboriginal offenders”. It is settled law that this provision imposes a requirement to consider the unique circumstances of Indigenous offenders in every case before a sentence is imposed, including in proceedings brought under Part XXIV (R v Ipeelee, 2012 SCC 13 at para 87, [2012] 1 SCR 433; R v Standingwater, 2013 SKCA 78 at paras 52–53, 417 Sask R 158; R v Montgrand, 2014 SKCA 31 at para 16, 433 Sask R 248; R v Peekeekoot, 2014 SKCA 97 at para 59, 446 Sask R 22).
[35] Weighing issues such as the offender’s culpability, future risk and treatability necessarily requires a sentencing judge to consider how the offender may have been affected by their individual experience as an Indigenous person, including the impact of historic and systemic factors, a point well-explained by Ryan-Froslie J.A. in R v Moise, 2015 SKCA 39, 457 Sask R 190 [Moise]:
[24] Section 718.2(e) requires a sentencing judge to consider both the unique circumstances of Aboriginal offenders which may diminish their moral blameworthiness in committing the offences for which they are charged, and any available alternatives to incarceration which exist as a result of culturally sensitive programming and supports both within and outside the Aboriginal community. When dealing with violent offenders subject to dangerous and long-term offender applications, moral blameworthiness may have little or no impact on the need for incarceration to protect the public, but culturally sensitive programming and supports may make a difference to the offender’s rehabilitation and management, within the community, of his or her risk to reoffend (see: Standingwater at paras. 49-53; Montgrand at paras. 16-17; Peekeekoot at para. 58).
[25] As with any sentencing decision, the weight to be attributed to Gladue considerations rests with the sentencing judge. It is, however, mandatory that those provisions be taken into account (see: Gladue at paras. 82-84; Ipeelee at paras. 60 and 85; Standingwater at para. 51; Montgrand at paras. 16-17; and, Peekeekoot at paras. 57-59.)
[36] As noted in Moise, it is particularly important, in the context of a Part XXIV proceeding, for a sentencing judge to consider the potential impact of culturally specific programming for an Indigenous offender. This principle was recently affirmed in R v Ballantyne, 2022 SKCA 13 [Ballantyne], where Jackson J.A. wrote:
[23] …When Indigenous offenders are sentenced under s. 753(4.1) of the Criminal Code, any consideration of treatment necessarily includes Gladue factors and culturally specific programming: R v Montgrand, 2014 SKCA 31 at paras 16 and 17, 433 Sask R 248; R v Standingwater, 2013 SKCA 78 at paras 49–53, 417 Sask R 158; and R v Starblanket, 2019 SKCA 130 at paras 71, 74 and 81, [2020]6 WWR 288. If such programming can be shown to reduce an offender’s risk to a manageable level, an offender should not be declared a dangerous offender, and the imposition of an indeterminate sentence would not be appropriate. …
[37] All of this is to say that where, as here, the offender being sentenced is Indigenous, a sentencing judge cannot ignore s. 718.2(e). While s. 718.2(e) does not dictate a particular result; it must form part of the analysis. Failing to consider it is an error of law.
[38] Again, in my view, the sentencing judge in this case failed to give any consideration to Mr. Laprise’s background and unique experiences as an Indigenous person. In part, this is because he appears to have completely ignored Mr. Laprise’s evidence. Mr. Laprise testified about his family background. He testified about how his experiences as an Indigenous person shaped his criminal history and how it affected the way he viewed the world. He testified about his latent connection to his Indigenous heritage, and about how he saw that affecting his choice of institutional programming and his prospects of success in that programming. He testified about how those things affected his plan for eventual life outside of a custodial setting in the future.
[39] Regrettably, the sentencing judge did not engage with any of this. The Decision reveals no analysis of any of that evidence, and no recognition of the need to approach the problem of determining an appropriate sentence from the angle set out in Moise and Ballantyne, or the cases referred to in those decisions. The failure to conduct this analysis was an error of law.
V. Conclusion
[43] I would allow Mr. Laprise’s appeal and remit the matter to the Court of Queen’s Bench for a new sentencing hearing under Part XXIV of the Criminal Code, in relation to the two counts of robbery. No appeal was taken in relation to the fixed sentences imposed on Mr. Laprise for the other offences. As such, I would not disturb those sentences.
R v MM, 2022 NSCA 46
[June 10, 2022] YCJA Sentencing: Sexual Assault [Reasons by Derrick J.A. with Beveridge and Van den Eynden JJ.A. concurring]
AUTHOR’S NOTE: Here, the Court of Appeal overturns a custody and supervision order issued against an young person. The case provides an excellent overview of sentencing principles and how they relate to young persons. The YCJA sentencing regime provides a completely different landscape of sentencing precedents and statutory requirements that trial courts must consider. Here, the sentencing judge incorrectly imported the adult sentencing idea of “major sexual assault” which both violated the principles that youth sentences statutorily are required to have regional parity and incorrectly imported adult sentencing ideas that suggested imprisonment is a “start-point”. Of note, the appeal court also categorically rejected the applicability of R v Friesen to youth sentences. These trial errors inflated the sentence. After correction, a suspended sentence was given to this youth given their background and lack of antecedents.
Reasons for judgment:
Introduction
[1] On May 25, 2021, M.M. 15 years old and a young person within the meaning of the Youth Criminal Justice Act, S.C. 2002, c.1 as amended, was found guilty of the sexual assault of J.D., contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. J.D. was also 15 and a close friend. Judge Alain Bégin, presiding as a judge of the Youth Justice Court, found that M.M. had vaginally penetrated J.D. while she was asleep. On October 18, 2021, Judge Bégin sentenced M.M. to a Custody and Supervision Order (CSO) followed by probation.
[3] M.M. appeals his sentence on the grounds the trial judge erred in principle in determining custody to be the only alternative in the circumstances of his case. As these reasons explain, I would allow the appeal and substitute a sentence of probation.
The Sentencing Hearing
[21] M.M.’s counsel made more extensive submissions that included: the special statutory regime for young persons in conflict with the law, the purpose and principles of the YCJA, specifically reflected in sections 3, 38 and 39, the imperatives directed at sentencing judges by the legislation, the diminished responsibility of young persons, the “last resort” use of custody for young persons, and the statutory emphasis on accountability through meaningful consequences, restraint and rehabilitation. She referred to a number of cases and spoke about M.M.’s specific circumstances.
[22] As described by his counsel, M.M. had suffered significant collateral consequences as a result of being charged with sexual assault:
Severe bullying that has made him change schools. Complete loss of friends, bullying by all his sports teams that he was kicked off of, somebody engraving “pedophile” in his car, then [sic] he then had to get fixed, severely demoralizing him and damaging his mental health. He has no friends from those same groups anymore.
[23] M.M. had been on a number of teams at his high school: football, rugby, track and field and he had had lots of friends. He was yelled at “everywhere he went”, threatened until he cried, and beaten up.
[24] M.M. had no previous convictions. He did not drink alcohol or use non- prescription drugs. He had been on release conditions since being charged with no breaches. His counsel indicated that he lived with his mother and sister and had been raised in a home where consequences were meted out for his actions. (In the PSR these were described as being grounded, given time-outs, having his mouth washed out with soap and being spanked.) As noted in the PSR, M.M. was a volunteer at his church. He had told his counsel he attended church every week and wanted “to be a good leader there” with the younger children.
[25] M.M.’s counsel confirmed the information from the PSR that M.M. had stopped therapy due to finding it was unhelpful. She clarified the problem: M.M. had not found therapy sessions delivered by telephone met his needs. She explained what had happened since the PSR was prepared:
…he’s gone back to therapy, and actively has been attending in person appointments…now that he is going to in person appointments, it’s a more meaningful experience and he has found it more helpful to engage in therapy where you’re talking in person with an individual. He talks about his anxiety and his stressors and how he’s coping with them.
[26] The judge was told M.M. had plans to improve his grades in order to get accepted at university. He was interested in studying for a kinesiology degree and eventually having a home and family, aspiring to be a “good father one day and a good husband”.
[30] The judge asked M.M.’s counsel to respond, stating:
But the Manitoba Court of Appeal tells me someone having sex with someone who’s sleeping should be looking at jail because it’s a major sexual assault.
[31] M.M.’s counsel indicated she was unfamiliar with the facts in B.S., noting it was difficult for her “to distinguish or assess the case without knowing more”.
[32] The judge moved directly to asking M.M. if he had anything to say, which he did not, and selecting a date for his decision.
The Judge’s Sentencing Decision
[38] The judge confirmed his review of the cases provided by Crown and defence, saying they were “all worthy of consideration”. He indicated it was “almost impossible to find cases that are similar to the case before the Court that can act as a strong precedent”. He continued with the following comments:
That being said, I also pointed out to counsel the case of R. v. B.S. [2017] M.J. No. 290, 2017 MBCA 102 (Man. C.A.) where the Manitoba Court of Appeal found that the trial judge had erred in finding there was no ‘serious bodily harm’ in the absence of expert evidence and in imposing a deferred custody and supervision order. The offence was a major sexual assault, forced sexual intercourse, while the victim was sleeping. The sentence appeal was allowed and the sentence was varied to a five-month custody and supervision order.
Further, the recent Friesen case from our Supreme Court has emphasized the serious, long-lasting and pervasive damage inflicted on young people who are sexually assaulted. All courts have been directed by the Supreme Court of Canada to deal with these types of cases very seriously”.
This was a sexual assault that was at the high end of the sexual assault spectrum. And it was a sexual assault against a young person.
[39] In concluding his reasons, the judge referred to the contents of J.D.’s Victim Impact Statement and her comments to the author of the PSR, which I described earlier. He reviewed the PSR, and made the following comments about it:
The Pre-Sentence Report…shows a reluctance by M.M. to engage in treatment as he sees no benefit in treatment. There is also a lack of acceptance of responsibility, and a change in how he refers to the victim of the sexual assault between the trial and now as he now claims that J.D. was a friend instead of his girlfriend, despite strongly testifying otherwise at trial.
It is clear from the Report that M.M. is in need of mental health services even though he does not think that it would be of benefit to him.
[41] He then sentenced M.M.:
What you did to J.D. was a “major sexual assault.” You violated the trust of someone who was a good friend and trusted you. Instead of honouring that trust you sexually assaulted her for your own selfish sexual urges. Your actions will no doubt have long term consequences for J.D. She will continue to suffer long after you have completed serving whatever sentence I impose.
To ensure ‘meaningful consequences’ for your violent offense of sexual assault which caused ‘serious bodily harm’ to J.D., I am sentencing you to 3 months Custody followed by 1 1/2 months Open Custody /Supervision Order. For your ‘accountability’ and ‘rehabilitation,’ your period of custody will be followed by a period of probation for a maximum sentence of no longer than 24 months so that you can get the necessary counselling that you require.
[42] M.M.’s Custody and Supervision Order states 90 days custody and 45 days supervision in the community.
The Issue in this Appeal
[43] The appellant stated the issues in its factum as:
1. Did the honourable trial judge err in law or principle by:
a. Failing to consider all reasonable alternatives to custody, contrary to s. 38(2)(d), 39(2) and 39(3)(a) of the Youth Criminal Justice Act;
Analysis
The Youth Criminal Justice Act
[47] The Youth Criminal Justice Act “sets out a detailed and complete code” for sentencing young persons. Young persons who commit crimes are “decidedly but differently accountable” than adults. Parliament has mandated a youth criminal justice system that “must be separate from that of adults” and “based on the principle of diminished moral blameworthiness or culpability”. This diminished moral blameworthiness reflects – as a consequence of their age – the heightened vulnerability, immaturity, and reduced capacity for moral judgment of young persons.
[49] Accountability for young persons under the YCJA must be “fair and proportionate” and “consistent with the greater dependency of young persons and their reduced level of maturity.” Rehabilitation and reintegration must be emphasized and there must be “timely intervention that reinforces the link” between the crime and its consequences.
[52] In B.W.P., the Supreme Court of Canada concluded a “plain reading of s. 38(1)” makes it apparent that:
…”protection of the public” is expressed, not as an immediate objective of sentencing, but rather as the long-term effect of a successful youth sentence.
[53] The YCJA mandates judges to sentence young persons “in accordance with the principles set out in section 3” and the principles in section 38(2) that include, for the purposes of this appeal: parity—a young person’s sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; proportionality—the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; and, subject to the proportionality principle, the sentence be the least restrictive sentence that is capable of achieving the overall purpose of sentencing; it be the one most likely to rehabilitate the young person and reintegrate him or her into society; and it promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community.
[55] Also relevant to M.M.’s sentencing was s. 39(1) of the YCJA and the requirement that a custodial sentence shall not be imposed unless certain circumstances apply, including that the young person has committed a violent offence. There was no dispute M.M. had committed a “violent offence” as defined by the statute, opening the door to the possibility of a Custody and Supervision Order pursuant to s. 42(2)(n).
[56] Where, as here, a custodial sentence is in play, the YCJA directs that no such sentence can be imposed unless:
…the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out on section 38.
[57] The Supreme Court of Canada has recognized that restricting the use of custody for young persons in conflict with the law is the aim of the YCJA.
Failing to Consider All Reasonable Alternatives to Custody
[62] At the start of his decision, the judge recited sections 38(1), (2) and (3) and 39(1), (2), and (3) of the YCJA. I have not found an indication in his reasons that he applied the principles embedded in these provisions. He never mentioned section 3, the YCJA’s Declaration of Principle, at all.
[63] The mere recital of relevant provisions of the YCJA does not satisfy the legislation’s imperative that all alternatives to custody be considered before a custodial sentence is imposed. The judge’s failure to comply with the requirements of the YCJA displaces the deference to which a sentencing decision is typically entitled.
[64] To comply with s. 38(1) of the YCJA, the sentence imposed by the judge had to hold M.M. accountable through just sanctions that had meaningful consequences for him and that promoted his rehabilitation and reintegration into society. The sentence had to be determined in accordance with the principles in the YCJA’s Declaration of Principles and the principles in s. 38(2). Those principles required the imposition of a proportionate sentence determined after an assessment of all available and reasonable sanctions short of custody. The judge was statutorily obligated to “consider any sentencing proposal made by the young person or his or her counsel” before imposing a custodial sentence. Including probation as part of the overall sentence is not an indication the judge considered it as an alternative to custody. There is nothing to show the judge gave attention to alternatives to custody as required by the YCJA.
[65] The trial judge made no mention in his reasons of the principle of diminished responsibility that underpins the sentencing of young persons. The Supreme Court of Canada has described sections 38 and 39 of the YCJA as a “statutory preoccupation with ensuring that sentencing reflects the reduced maturity and moral sophistication of young persons… The trial judge failed to advert to his obligation to factor M.M.’s reduced capacity for moral reasoning and judgment into his sentencing calculus.
[66] I am not persuaded by the respondent Crown’s submission that reading the reasons as a whole leads to the conclusion the relevant factors were considered and addressed. His reasons and the imposition of a period of probation to follow the CSO do not show, as the respondent has suggested, that the trial judge “kept rehabilitation as a focus and a stated goal”. The judge did not address a number of highly applicable circumstances he was mandated to consider in crafting an appropriate sentence for M.M. He did not show he had reflected on the information provided about M.M. that:
- His rehabilitation was underway. M.M.’s counsel told the judge what M.M. had said he had learned from being charged with sexual assault. He clearly had gained a critical appreciation of what is required for consent to sexual activity.
- He had shown remorse in the texts he sent J.D. well before the trial and his sentencing. At a time when there was no apparent benefit to be obtained by doing so, M.M. apologized to J.D. The judge had referred to these texts in his trial decision. M.M. got no credit for them at sentencing. They should have been taken into account as mitigating.
- Despite the judge recognizing M.M. was in need of mental health services, in his sentencing decision he overlooked the fact that M.M. was attending counselling. At the sentencing hearing, M.M.’s counsel explained the history of M.M.’s mental health issues and interventions. Significantly, since the preparation of the PSR, M.M. had been attending in-person sessions with a therapist and finding it beneficial.
- M.M. experienced significant collateral consequences in the wake of being charged with sexual assault. A proportionate sentence takes into account “all the relevant circumstances related to the offence and the offender”, including any collateral consequences. There is very little difference between the application of collateral consequences to the sentencing calculus and what are often treated as mitigating factors. In M.M.’s case, the judge determined that custody was a proportionate sentence without taking into account, as he should have, the violent retribution to which M.M. had been subjected. The judge settled on custody for M.M. as the only sentencing alternative without regard for the full range of his personal circumstances.
[68] The seriousness of the offence and M.M.’s high degree of moral culpability were factors the trial judge had to take into account in his proportionality assessment. But fashioning a sentence in compliance with the YCJA required a more comprehensive analysis. The trial judge focused exclusively on the seriousness of the offence. As I have discussed, he brought no other considerations to bear in his determination that custody was the only option for holding M.M. accountable. He failed to examine why 24 months of probation, the longest period of probation that can be imposed under the YCJA, could not constitute a proportionate sentence and meaningful consequence for M.M.
Failing to Provide Reasons Indicating Why a Non-Custodial Sentence Was Not Capable of Achieving the Purposes of Sentencing in s. 38(1)
[69] The judge cannot be said to have substantively complied with the requirement for reasons mandated by s. 39(9) of the YCJA. That statutory requirement underscores Parliament’s emphasis on the importance of articulating why a non-custodial sentence is not adequate to achieve the purposes set out in s. 38(1) of the YCJA. A simple recital of the seriousness of the offence, with the assertion that custody is required, does not comply with the mandates of the Act. The judge dismissed the alternative of a lengthy period of probation without explaining his reasons for why this sanction could not operate to hold this young person accountable.
[72] It is important to recognize that Provincial Court judges in this province work under considerable time constraints and pressures. Their decisions are not to be examined against a standard of perfection. Appellate review is expected to have regard for “the time constraints and general press of business in the criminal courts”. However, Parliament has mandated that when youth justice court judges impose custodial sentences, a sanction intended to be sparingly used, their reasons must state why a non-custodial sentence cannot satisfy the requirement of accountability through meaningful consequences.
[73] No such explanation was given by the trial judge when he sentenced M.M. to Custody and Supervision under s. 42(2)(n). This failure constituted an error in principle.
The Application of Adult Sentencing Principles
[75] The trial judge seems to have had at least one foot planted in adult sentencing considerations. In a reference to “imprisonment as a sentence of last resort” he mentioned both the Criminal Code and the YCJA. More significantly, he added a notation to his recital of s. 38(2)(a), which directs that a young person’s sentence must not result in a punishment greater than appropriate for a similarly- situated adult: “Note: an adult would be looking at a maximum sentence of 10 years, and quite likely looking at a sentence in the 3-to-4-year range”.
[76] This observation had no relevance to M.M.’s sentencing. Given the restrictions placed by the YCJA on custodial sentences, s. 38(2)(a) was not applicable to this case. A custodial sentence under s. 42(2)(n) of the YCJA is subject to strict limitations: a Custody and Supervision Order imposed in relation to a young person’s conviction for sexual assault cannot exceed two years.
[77] There are additional illustrations that suggest the trial judge did not firmly locate his thinking within the special regime for sentencing young persons.
[78] As noted in paragraph 37 of these reasons, the trial judge addressed rehabilitation by reference to R. v. E.M.W., a sentence appeal involving an adult who had been convicted of sexually assaulting his daughter. In E.M.W., this Court confirmed the priority of the sentencing principles that governed E.M.W.’s crime: deterrence and denunciation as reflected in s. 718.01 of the Criminal Code. The judge in E.M.W. was found to have made no error by failing to mention rehabilitation in his sentencing analysis: Fichaud J.A. observed that E.M.W. “has not accepted responsibility, normally a feature of rehabilitation”.
[79] The sentencing of M.M., a young person, required that rehabilitation be examined through the lens of his diminished moral culpability which recognizes the immaturity and reduced capacity for moral judgment that is characteristic of young persons. Invoking E.M.W. aligned the trial judge’s thinking with the principles that govern adult sentencing. This led the judge into error. He failed to give rehabilitation the emphasis mandated by the YCJA. Furthermore, as I noted earlier, the trial judge had been told that by the time of his sentencing hearing, M.M.’s rehabilitation had begun to take shape through his engagement with his therapist and the insights into his conduct that he shared with his counsel.
[80] M.M. has also identified as problematic the trial judge’s reference to Friesen and the Supreme Court of Canada’s emphasis on the serious, long-lasting and pervasive harm occasioned by sexual assault perpetrated against young people. M.M. submits it was “reasonable for the trial judge to refer to Friesen for the purposes of considering proportionality as the case underscored the degree of short term and long term harm caused to children who are sexually abused by adults”. M.M.’s concern lies with the trial judge’s comment that courts have been directed by Friesen “to deal with these types of cases very seriously”. He says this suggests the trial judge viewed Friesen as authority for more punitive sentencing under the YCJA.
[81] Friesen is focused on the sentencing of adults convicted of sexual offences against children. The court recognized that “offenders treat children as sexual objects whose vulnerability can be exploited by more powerful adults. There is an innate power imbalance between children and adults that enables adults to violently victimize them”. It directed judges in explicit terms not to minimize or under-emphasize the harms caused by sexual crimes. [Emphasis by PJM]
[82] A judge’s acknowledgment in sentencing a young person convicted of sexual assault that sexual assault is inherently violent and harmful is entirely appropriate and consistent with the princip of proportionality. However, judges engaged in sentencing young persons for sexual assault must be very cautious in their use of Friesen. The emphasis in Friesen on more punitive sentences for adults convicted of the sexual exploitation of children does not resonate in the context of the YCJA. As I previously indicated, the sentencing principles under the Criminal Code, discussed in Friesen, have no application to the sentencing of young persons.
[85] What must be emphasized is that the principles that govern sentencing under the YCJA are in no way attenuated or modified by Friesen nor are they to be interpreted through a Friesen lens. To the extent the trial judge was influenced by Friesen to impose a more punitive sentence on M.M. in the form of a Custody and Supervision Order, that constituted an error in principle. [Emphasis by PJM]
Failing to Apply the Principle of Regional Parity
[86] The trial judge was obligated by s. 38(2)(b) of the YCJA to impose a sentence that was “similar to sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances” (emphasis added). His reasons do not indicate he gave this requirement any consideration.
[88] I will return to B.S. shortly. Before I do, I will address three cases the judge was referred to by Crown counsel at sentencing: R. v. N.P.; R. v. S.C.Y.; and R. v. C.Z.. Not only were two of them not representative of regional parity, they were all readily distinguishable as pointed out by M.M.’s counsel.
[92] The trial judge did not mention N.P., S.C.Y., or C.Z. in his reasons so it is not possible to know whether he took them into account in his determination that custody was the only sentencing alternative for M.M. Only N.P. could be considered as “regional” but, as with S.C.Y. and C.Z., it offered the trial judge no useful guidance.
[95] It was R. v. B.S. that was on the trial judge’s mind during the sentencing hearing. As M.M.’s counsel neared the end of her sentencing submissions, the trial judge asked her to respond to B.S.. He said the “Manitoba Court of Appeal tells me someone having sex with someone who is sleeping should be looking at jail because it’s a major sexual assault”. His comment foreshadowed his sentence and discloses error.
[96] B.S. does not represent regional parity. I am satisfied that the trial judge’s incorporation of B.S. into his analysis invited error because the case utilized language – “major sexual assault” – and a sentencing approach followed by courts in other provinces, notably, Alberta, Saskatchewan and Manitoba, and not Nova Scotia. [Emphasis by PJM]
[105] In concluding my discussion on the regional parity issue, I find the trial judge erred by overlooking s. 38(2)(b) as one of the sentencing principles he was obligated to take into account, and by incorporating in his analysis concepts that are inapplicable to sentencing young persons for sexual assault in Nova Scotia.
Determining M.M.’s Sentence
[106] Where appellate review determines the sentencing judge has made a consequential error in principle, the court then performs its own sentencing analysis to determine a fit sentence. As Friesen directs, in conducting the fresh sentencing analysis,
…the appellate court will defer to the sentencing judge’s findings of fact or identification of aggravating and mitigating factors, to the extent that they are not affected by an error in principle…
[108] The applicable principles have already been extensively reviewed in these reasons. In the circumstances of this case, a CSO is not the proper sanction for holding M.M. accountable. I am satisfied a period of probation is the appropriate meaningful consequence for M.M. that will promote his rehabilitation and reintegration into society. Probation represents: the least restrictive sentence capable of achieving the purposes of s. 38(1) of the YCJA, will be most likely to rehabilitate M.M. and reintegrate him into society, and will serve to promote a sense of responsibility in M.M. and an acknowledgement of the harm done to J.D. and the community.
[109] I would vary M.M.’s sentence by setting aside the Custody and Supervision and Probation Orders and imposing a period of 12 months’ probation. Relevant to varying M.M.’s sentence from custody to probation are these factors: M.M.’s apologies by text to J.D. which indicate remorse; his engagement in therapy and his insights into the critical issue of consent; and the collateral consequences he suffered as a result of the offence. I have taken into account the factors set out in Section 38(3) of the YCJA, including s. 38(3)(d) which requires that consideration be given to the 31 days spent in detention by M.M. before he was released on bail pending this appeal.
Conclusion
Criminal Appeals: A Practitioner’s Handbook
By Mark C. Halfyard, Michael Dineen & Jonathan Dawe
