PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Briand, 2012 NSPC 10
Date: 20120120
Docket: 2392417
Registry: Sydney
Between:
Her Majesty the Queen
v.
Jeffery John Briand
______________________________________________________________
Sentence
______________________________________________________________
Judge: The Honourable Judge Jean M. Whalen, J.P.C.
Heard: January 20, 2012, at Sydney, Nova Scotia
Charge: Section 267(b) Criminal Code of Canada
Counsel: Andre Arseneau, for the Crown
Doug MacKinley, for the Defence
INTRODUCTION:
[1] Mr. Briand appeared with his counsel, Mr. MacKinley, in Provincial Court. There was a new information before the court charging Mr. Briand with s. 267(b), assault causing bodily harm. The Crown proceeded summarily with consent of the defendant. Mr. Briand plead guilty to that charge.
[2] Both Crown and Defense counsel made submissions and put forward a joint recommendation for a Conditional Sentence Order of six months followed by Probation for 18 months (with numerous conditions).
[3] Based on what the court heard I was not inclined to follow the recommendation; I advised counsel and adjourned to give them time to prepare and make further submissions.
THE LAW:
[4] Quoting extensively from R. v. Sinclair, 185 C.C.C. (3d) 564 (MBCA) beginning at paragraph 4:
It is accepted that while a joint submission cannot bind the discretion
of the judge, sentencing judges should normally not deviate from a
joint submission unless they have clear and cogent reasons for doing so.
[5] If a sentence recommended by both counsel is outside the range of
sentence established by precedent, then the sentencing judge need not
follow the joint recommendation.
[6] However, even in that situation, a sentencing judge should exercise
caution before ignoring a sentence carefully negotiated by experienced
counsel. As stated by the Nova Scotia Court of Appeal in R. v. MacIvor,
176 C.C.C. (3d) 420, 2003 NSCA 60 (N.S.C.A.) (AT PARA. 32):
“ Even where the proposed sentence may appear to the judge to be
outside an acceptable range, the judge ought to give it serious
consideration bearing in mind that even with all appropriate
disclosure to the Court, there are practical constraints on disclosure
of important and legitimate factors which may have influenced
the joint recommendation.”
[8] Plea bargaining has become a routine part of the process of handling
criminal cases. The bargaining process is undermined if the joint
recommendation is too readily rejected by the sentencing judge.
This was recognized by Martin Committee in 1993, which suggested
that the proper test for justifying departure is whether the proposed
sentence brings the administration of justice into disrepute or is otherwise
contrary to the public interest. The test is weighted in favor of enhancing
the objective of certainty of outcome, and it has been adopted by the
Ontario Court of Appeal.
The test acknowledged by them:
[A] high threshold and is intended to foster confidence in an accused,
who has given up his right to a trial, that the joint submission he obtained
in return for a plea of guilty will be respected by the sentencing judge.
[Cerasuola, at para 8, per Finlayson.J.A.]
[9] Other provinces, including Manitoba, have used different language in
describing the appropriate test for departing from a joint submission.
In R. V. C. (G.W), 150 C.C.C. (3e) 513, 2000 ABCA 333 (Alta C.A.),
the Alberta Court of Appeal stated that joint submissions should be
accepted unless they are unfit or unreasonable. That case was adopted
by the Saskatchewan Court of Appeal in R. V. Webster, 207 Sask, R.
257,2001, SKCA 72 (Sask. C.A.).
In Manitoba, in Pashe, the court stated:
[10] Whatever the language used, the standard is meant to be an exacting
one. Appellate courts, increasingly in recent years, have stated time and
again that trial judges should not reject jointly proposed sentences unless
they are “unreasonable”, “contrary to the public interest”, “unfit”, or
“would bring the administration of justice into disrepute.”
[11].. A reasonable joint submission cannot be said to “bring the administration
of justice into disrepute.” An unreasonable joint submission, on the other
hand, is surely “contrary to the public interest.” Accordingly, though it is
purposively framed in striking and evocative terms, I do not believe that
the Ontario standard [i.e., that the jointly recommended sentence is
contrary to the public interest and would bring the administration of
justice into disrepute] departs substantially from the test of
reasonableness articulated by other courts, including our own. [The]
shared conceptual foundation [of these various formulations of the
principle] is that the interest of justice are well served by the acceptance
of a joint submission on sentence accompanied by a negotiated plea
of guilty – provided, of course, that the sentence jointly proposed falls
within the acceptable range and the plea is warranted by the facts admitted.
The court went on to state:
[12] When deciding whether to depart from a joint recommendation, a
court should consider the following factors:
[13] There is a continuum in the spectrum of plea bargaining and
joint submissions as to sentence. In some cases, the Crown’s
case has some flaw or weakness and the accused agrees to
give up his or her right to a trial and to plead guilty in exchange
for some consideration. This consideration may take the form
of a reduction in the original charge, withdrawal of other charges
or an agreement to jointly recommend a more lenient sentence
than would be likely after a guilty verdict at trial.
Evidence always varies in strength and there is always uncertainty
in the trial process. In other cases, plea negotiation have become
accepted as a means to expedite the administration of criminal justice.
The clearer the quid pro quo, the more weight should be given an
appropriate joint submission by the sentencing judge. See. R. v.
Broekaert, 170 Man R. (2d) 229, 2003 MBCA 10 (Man. C.A.),
At para. 29, and Booh, at para. 11.
Recognizing that cases fall at various places in the continuum,
the essence of the plea bargain or joint submission should be
placed on the record in open court. The judge must have a solid
factual basis on which to make an independent, reasoned
decision. If a trial judge is not given or fails to inquire into the
circumstances underlying a joint sentencing submission, then he
or she will be hard pressed to determine whether there is good
cause to reject that joint submission.
If the joint submission is as a result of, for example, an
evidentiary gap in the Crown’s case or the absence of an
essential witness, this is information that should be provided to
the court by counsel, and particularly Crown counsel.
[15] If, after being provided with that information and those
submissions, the judge is still considering departing from the
joint recommendation, he or she should advise counsel of that
fact and provide them with an opportunity to make further
submissions, if they so wish. Counsel may be able to respond
to concerns the sentencing judge may have for departing from
the recommended sentence. See. R. v. Thomas, 153 Man. R.
(2d) 98, 2000, MBCA 148 (Man. C.A.), at para 7, Broekaert at
Paras. 10 -11, Booh, at para. 13, and R. v. Hatt, 163 C.C.C. (3d)
552, 2002 PESCAD 4 (P.E.I.. C.A.), at para . 15.
[16]) If after those submissions, the sentencing judge remains of the
view that the joint submission is unfit or unreasonable, the
judge may impose a different sentence, but must give clear
reasons for doing so.
[17] Thus, the law with respect to joint submissions maybe summarized
as follows:
(1) While the discretion ultimately lies with the court, the
Proposed sentence should be given very serious consideration.
(2) The sentencing judge should depart from the joint
submission only when there are cogent reasons for doing so.
Cogent reasons may include, among others, where the sentence
is unfit, unreasonable, would bring the administration of justice
into disrepute or be contrary to the public interest.
(3) In determining whether cogent reasons exist (i.e. in
weighing the adequacy of the proposed joint submission), the sentencing
judge must take into account all the circumstances underlying the joint
submission. Where the case falls on the continuum among plea bargain,
evidentiary consideration, systemic pressures and joint submissions will
affect, perhaps significantly, the weight given the joint submission by the
sentencing judge.
(4) The sentencing judge should inform counsel during the
sentencing hearing if the court is considering departing from the proposed
sentence in order to allow counsel to make submissions justifying the
proposal.
(5) The sentencing judge must then provide clear and cogent
reasons from departing from the joint submission. Reasons for departing
from the proposed sentence must be more than an opinion on the part of
the sentencing judge that the sentence would not be enough. The fact that
the crime committed could reasonably attract a greater sentence is not alone
reason for departing from the proposed sentence. The proposed sentence must
meet the standard described in para. 2,considering all of the principles of
sentencing, such as deterrence, denunciation, aggravating and mitigating
factors, and the like.
[5] In R. v. Cromwell, 202 C.C.C. (3d) 340 the NSCA discusses
“Resolution Agreements” and “Fitness of Sentence.” Beginning at para 18:
“Resolution Agreements:
In R. v. MacIvor, this Court approved with particular emphasis,
the following comment by Fish, J.A. (As he then was), writing
for the Court in R. c. Verdi-Douglas (2002), 162 C.C.C. (3d)
37 (Que. C.A.):
[51]...the interests of justice are well served by the acceptance
of a joint submission on sentence accompanied by a negotiated
plea of guilty - provided, of course, that the sentence jointly
proposed falls within the acceptable range and the plea is
warranted by the facts admitted.
[19] There are many situations in which it is in the public interest
for Crown and defence counsel to enter into negotiations which
result in a guilty plea and a joint sentence recommendations.
There may be uncertainties in evidence which induce both
counsel to prefer a compromise. Avoidance of a trial may save
substantial public expense and spare prosecution witnesses the
trauma of testifying. A negotiated resolution, which shortens
the time between the charging of the offence and disposition,
protects the public from those who would re-offend while on a
pre-trial release and spares victims of crime the long ordeal of
awaiting trial of the perpetrators. Offenders sometimes provide
the police with critical information leading to the solution of
other crimes. This can serve as a quid pro quo for a sentence
somewhat reduced from what would otherwise be appropriate.
Heavy criminal caseloads resulting in court backlogs can also
be alleviated through consensual resolution, in the proper
circumstances. Such resolutions are more likely to be achieved
where it is probable that the sentencing judge will accept the
recommendation of counsel.
[20] Joint sentence submissions arising from a negotiated guilty
plea are generally respected by the sentencing judge. Ultimately,
however, the judge is the guardian of the public interest and
must preserve the reputation of the administration of justice.
Where the agreed resolution is contrary to the public interest,
would bring the administration of justice into disrepute or is
otherwise unreasonable the judge retains the discretion to reject
The joint submission ( R. v. Cerasuolo (2001), 151 C.C.C. (3d)
445 (Ont. C.A.); R. v. Dorsey (1999), 123 O.A.C. 342
(Ont. C.A.); R v. C. (G.W.) (2000), 150 C.C.C. (3d) 513
(Alta. C.A.)).
[21] A trial judge may decline to give effect to a joint recommendation,
not simply because she would have imposed a more severe
Sanction, but where the sentence is clearly unreasonable and
then, only if the judge is satisfied there are no other compelling
circumstances justifying, as in the public interest, a departure
from an otherwise fit sentence.
Fitness of Sentence:
[22] In R. v. Shropshire, [1995] 4 S.C.R. 227 (S.C.C.) an “unfit”
sentence is described as one that is “clearly unreasonable”
(at para. 46 per Iacobucci, J., for a unanimous Court), in other
words, “clearly excessive or inadequate” (see also R. v. Muise
(No.4) (1994), 94 C.C.C. (3d) 119 (N.S.C.A.)). An unreason-
able sentence is one falling outside the range (Shropshire at para,
50 and MacIvor, supra at para. 31).
[23] In evaluating a joint submission the judge must determine the
acceptable range of sentence for the offence before the court. A
fit sentence is one that falls within that range. Fixing the
range requires a consideration of the general sentencing
principles and, for purposes of this case, those of conditional
sentencing.
[24] Where there is a joint submission, the judge considers the
record before him - the admitted facts of the offence, information
about the offender; the victim impact statements and submissions
of counsel. It is counsels’ obligation to provide sufficient
detail to justify the joint submission. ( R. v. G.P., supra at para.
20 and R. c. Verdi-Douglas, supra at para. 45). There are occasions
when all relevant factors prompting the joint submission cannot
be disclosed to the judge. The offender may have provided useful
but confidential information about other crimes, disclosure of
Which would endanger his safety or compromise an on-going
investigation. For that reason, even where a joint submission falls
outside the range, it should be given serious consideration (MacIvor,
supra at para. 37).
Fitness of the Proposed Sentence:
At paragraph 26 the Court of Appeal stated:
[26] ...the range is not the minimum to maximum possibilities for
the offence but is narrowed by the context of the offence
committed and the circumstances of the offender (“...sentences
imposed upon similar offenders for similar offences committed
in similar circumstances...” per MacEachern, C.J.B.C. in R v.
Mafi (2000), 142 C.C.C. (3d) 449 (B.C.C.A.)). The actual
punishment may vary on a continuum taking into account
aggravating and mitigating factors, the remedial focus required
for the particular offender and the need to protect the public. This
variation creates the range.
CONDITIONAL SENTENCE:
[6] R. v. Rushton, 2005 NSSC 360 at para 9 quotes the CA from R. v. MacNeil
(1991), 108 NSR (2d) 1993 (NSCA) [J. Matthews at para 11]:
“In innumerable cases, this Court said that in crimes of violence
rehabilitation and individual deterrence must give way to general
deterrence. In all of the circumstances of this case it is our opinion
that the sentence was fit and should not be disturbed.”
[10] These cases predate the conditional sentence regime now incorporated
in the Criminal Code. Nevertheless, it remains clear that the necessity
for deterrence in the circumstances of crimes of violence often results
in sentences involving secure or institutional incarceration.
[11] However, it is now also evident that many offences involving crimes
of violence result in the imposition of conditional sentences,
particularly where the Court has been satisfied the safety of the
community is not being endangered and the serving of the sentence in
the community is consistent with the fundamental purposes and
principles of sentencing. For example, in R. v. Proulx, [2000]
1 S.C.R. 61 (S.C.C.), the leading case on conditional sentencing, Lamer
C.J.C., at para. 279, stated that no offences are presumptively excluded
from the conditional sentencing regime where the prerequisites of a
conditional sentence are met.
[12] Examples of a number of Nova Scotia sentencing decisions in which
conditional sentences were imposed or affirmed for violent offences,
include:
· R. v McBride, [2003] N.S.J. No. 508, 218 N.S.R. (2d) 201
(N.S.S.C.). The offences included assault (s. 266(a); assault causing
bodily harm (s. 267(b)); and confinement (s. 279(2)(a)). The imposed
sentence was sixteen months conditional with the first three months
being house arrest.
· R. v. D.(K.), [2005] N.S.J. No. 25 (N.S.C.A.), involved an
offence of sexual assault. The sentence of two years less one day,
conditional sentence, was affirmed by the Court of Appeal.
· R. v. Brown, [2004] N.S.J. No. 133, 222 N.S.R. (2d) 393 (N.S.C.A.).
The offences included two assaults. The sentence of eighteen month’s
conditional with house arrest throughout, plus probation, was affirmed.
· R. v. W. (M.A), [1999] N.S.J. NO 49, 174 N.S.R. (2d) 83 (N.S.C.A.).
The offence was sexual assault. (S. 271) and the sentence was
eighteen months’ conditional sentence, affirmed on appeal, with
additional conditions, including house arrest.
· R. v. Bratzer, [2001] N.S.J. No. 461, 198 N.S.R. (2d) 303 (N.S.C.A.).
There were three Robbery offences. The sentences of two years less one
day, conditional, served concurrently, was affirmed.
· R. v .Burbine, [2001] N.S.J. No. 432 (N.B.S.C.). The offence
involved was aggravated assault. The sentence imposed was a conditional
sentence of eighteen months plus probation and community service.
ANALYSES:
[7] Upon further submission it is now known by this court that:
1. The crown’s case had some significant flaws or weaknesses;
2. Mr. Briand gave up his right to a trial and plead guilty in exchange
for some consideration. Here it was a reduction in the original charge
and a jointly recommended conditional sentence order;
3. It is clear that there was a “quid pro quo” between the parties;
4. I now have a solid factual basis on which to make a final decision;
5. The joint recommendation is for a 10 month jail sentence to be
served in the community by way of a Conditional Sentence, by all appearances
a more appropriate range of sentence.
[8] Taking into consideration:
1. the admitted facts of the offence;
2. the information about the offender;
3. the Victim Impact Statement and the submissions of counsel.
[9] I will consider the test set out in s. 742.1.
1. Is jail appropriate, and if so, should it be less than 2 years? The
Crown went summarily so the maximum sentence is 18 months in jail.
So the first part of the test is made out procedurally. Mr. Briand is eligible
for a conditional sentence order.
2. Is the court satisfied serving the sentence in the community would
not endanger the safety of the community and would be consistent with
the fundamental purposes and principles of sentencing?
(a) I have to consider the risk posed by the specific offender
including his risk to re-offend and this includes the risk of
“any” criminal activity and;
(b) the gravity of the damage that could ensue from any further
offence.
[10] In general a conditional sentence achieves the restorative objectives of
sentencing better than incarceration, which is preferable where denunciation
and deterrence are especially important. A conditional sentence may provide
sufficient denunciation and deterrence, however, it depends upon:
(i) the nature of the conditions imposed;
(ii) the duration of the sentence;
(iii) the circumstances of the offender and the community.
[11] Mr. Briand:
(1) has not been in trouble since 2007;
(2) he has been working for the last 3 or 4 years and intends
to go to work in May in the fishing industry;
(3) he has a common law spouse;
(4) he has the support of his family;
(5) he has been on conditions since he was charged and there have
been no breaches or charges.
[12] Therefore given all of the above including the facts, Mr. Briand’s record
and all of the circumstances I am prepared to follow the joint recommendation of
counsel:
(1) 10 month jail (Conditional Sentence Order);
(2) 14 months probation with conditions;
(3) DNA order;
(4) Firearms prohibition order s. 109.
Dated at Sydney, Nova Scotia, this 20th day of January 2012.
___________________________
Jean M. Whalen, J.P.C.