Decision Content
MEMORANDUM
June 8, 2021
TO: DISTRIBUTION LIST
FROM: Shirley Mair
Supreme Court Judges’ Chambers
RE: Rankin v HMTQ, 2021 NWTSC 20
File No.: S-1-CR-2020-000122
ERRATUM
On the first page the file number reads:
S-01-CR 2020-000112
It has now been corrected to read:
S-01-CR 2020-000122
Please replace original first page with the attached.
Shirley Mair
Senior Judicial Assistant
Rankin v HMTQ, 2021 NWTSC 20
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
BETWEEN:
MITCHELL RANKIN
Appellant
-and-
HER MAJESTY THE QUEEN
Respondent
MEMORANDUM OF JUDGMENT
[1] This is a sentence appeal. The Crown consents.
[2] On February 7, 2020 Mr. Rankin was charged with impaired driving, under ss. 320.14(1)(a) and (b) of the Criminal Code. He had his first appearance in the Territorial Court approximately ten months later, on October 27, 2020. The delay was due to the Covid-19 pandemic. In the period between the charge and the first appearance, Mr. Rankin successfully completed a substance abuse treatment program. The program he completed is one that is approved by the Northwest Territories, the jurisdiction in which Mr. Rankin lives.
[3] Mr. Rankin subsequently appeared in Territorial Court on November 6, 2020 and pleaded guilty to the charge under s. 320.14(1)(b). The other charge was withdrawn. The trial judge entered a conviction after satisfying himself that Mr. Rankin’s plea was voluntary. The matter then proceeded immediately to sentencing.
[4] Section 320.14(1)(b) carries with it a mandatory minimum penalty of a fine and a driving prohibition. These vary in accordance with the offender’s blood alcohol level and the number of previous offences. In this case, the mandatory minimum sentence would be a $2,000.00 fine and a twelve month driving prohibition.
[5] Section 320.23 provides an exception to the requirement to impose the mandatory minimum sentence, as follows:
320.23 (1) The court may, with the consent of the prosecutor and the offender, and after considering the interests of justice, delay sentencing of an offender who has been found guilty of an offence under subsection 320.14(1) or 320.15(1) to allow the offender to attend a treatment program approved by the province in which the offender resides. If the court delays sentencing, it shall make an order prohibiting the offender from operating, before sentencing, the type of conveyance in question, in which case subsections 320.24(6) to (9) apply.
(2) If the offender successfully completes the treatment program, the court is not required to impose the minimum punishment under section 320.19 or to make a prohibition order under section 320.24, but it shall not direct a discharge under section 730.
[6] The Crown and defence made a joint sentencing submission for a $1,000.00 fine to be imposed on Mr. Rankin, with no driving prohibition. This is below the mandatory minimum. Both counsel submitted that the judge had the discretion to impose a sentence below the mandatory minimum because all of the constituent elements under s. 320.23 were present: the prosecutor was consenting; Mr. Rankin had successfully completed a treatment program approved by the Northwest Territories; and it was implicit that it would be in the interests of the justice to accept the joint sentencing submission.
[7] The sentencing judge ultimately determined that he had no choice but to impose the mandatory minimum because what was proposed was an illegal sentence. This was based on his interpretation that s. 320.23 requires the sentencing court to approve the treatment program in advance. Specifically, he stated:
. . . but because I interpret that provision as - - differently. I believe it refers to a treatment program approved in advance by the Court after receiving the consent of the prosecutor and yourself and considering the interests of justice, and I believe I am supported in that view or interpretation by virtue of the fact that if, as counsel has suggested or is arguing, that it could be any treatment program approved by the territories, then subsection (2) would read if the offender successfully completes “a” treatment program.
Reasons for Decision, p 37, ll 7-15
[8] Although not expressed directly, the sentencing judge seemed to suggest that but for this legal impediment, he would have accepted the joint submission. Reasons, p 36, ll 21-27 to p 37 ll1-3.
[9] Respectfully, I find that s. 320.23 does not require the sentencing court to approve the treatment program in advance of sentencing and therefore, the proposed sentence was not illegal.
[10] It is for the government authorities in the jurisdiction where the offender resides to approve the treatment program. That is clear from the wording of s. 320.23(1). There is no reference to a need for prior court approval. Further, the reference to “the” treatment program, rather than “a” treatment program in s. 320.23(2) does not change this. Read in context, what is required by s. 320.23(2) is that the offender completes the treatment program that has been referred to in s. 320.23(1): that is, a treatment program approved by the government authorities in the province or territory where the offender lives, which the offender has undertaken to complete. Assuming that the program is approved by government authorities in the province or territory and that the prosecutor and the offender consent, the sentencing court is left to decide if it is in the interests of justice to delay sentencing so the offender can complete the program. Where sentencing has been delayed for this purpose and the matter comes forward for sentencing, the sentencing court must then be satisfied that the offender has indeed completed the approved program. If so, it may exercise discretion and impose a sentence other than the mandatory minimum.
[11] The facts of this case present an anomaly which, in my view, contributed significantly to the sentencing judge’s conclusion that the joint submission presented by the parties would be an illegal sentence. The procedure that s. 320.23 contemplates are, first, that the offender will either plead guilty or be found guilty and a conviction entered. Second, the prosecutor and the offender will ask that sentencing be delayed to allow the offender to complete the program. Third, the court will decide if this is in the interests of justice and, if so, it will delay sentencing. Fourth, in the intervening period between the conviction and the sentencing date, the offender will complete the program. Finally, the parties will return to court for sentencing, presumably with the offender having successfully completed the treatment program.
[12] All of those things happened here, but not in that order. When Mr. Rankin was arrested and charged, the country was entering the early stages of the Covid-19 pandemic and, among other things, court proceedings, including Mr. Rankin’s scheduled appearances, were delayed. He decided to pro-actively address his alcohol addiction as soon as he could, rather than waiting for an opportunity to first appear in court. He completed a treatment program approved by the Northwest Territories. By the time he was able to appear in court and enter his guilty plea, there was simply no need to delay sentencing.
[13] The fact that Mr. Rankin completed the treatment program before he was found guilty and before asking the sentencing court to delay sentencing, as well as the fact that sentencing was not, in fact, delayed, does not prevent him from availing himself of s. 320.23. This is clearly remedial legislation, aimed at encouraging offenders to take responsibility for their actions and to obtain treatment for underlying addiction or other issues that led to the offending behaviour. The order in which things happen must not be the determining factor. If the procedural requirements are interpreted too strictly, the remedial purpose, which is manifested in the substantive elements, will be defeated.
[14] I recognize that this may be considered an exceptional or strained construction of the statutory provision; however, courts have jurisdiction to adopt exceptional interpretations where necessary, to avoid unintended consequences and/or to give effect to the purpose of the legislation. Paul v The Queen, [1982] SCJ No 32, [1982] 1 SCR 621 at 662-665; R v Monney, 1999 Canlii 678 (SCC), [1999] 1 SCR 652 at 660-671. This is a case in which an exceptional interpretation is required.
[15] It is well-known that treatment beds in southern facilities can be hard to come by for residents of the Northwest Territories. Those seeking treatment for addiction do not typically have the option to defer participation to a time of their own choosing. Bed availability may not coincide with court schedules, even in the absence of the kinds of measures imposed to deal with the pandemic and their consequent effect on court proceedings. Section 320.23 must be interpreted liberally, in such a way that Parliament’s intentions are given effect and offenders have the latitude to pursue treatment at the first opportunity, without fear of compromising their legal position. Accordingly, I find that is open to a sentencing court to recognize and take into account an offender’s successful completion of a treatment program for the purposes of s. 320.23 even if it has been completed before the offender has been found guilty of the driving offence.
[16] Turning to the sentence, Mr. Rankin and the Crown jointly submit that Mr. Rankin be fined $1,000.00 and that he not be subject to a driving prohibition. As the sentencing judge noted, and as is apparent from the record before me, Mr. Rankin is a young man with no criminal record. He took steps to deal with the underlying causes of his offending behaviour as soon as possible following his arrest. He entered a guilty plea at the first opportunity which, besides saving the state and the justice system considerable resources, demonstrates that he has acknowledged the wrongfulness of his actions and taken responsibility for his offence. He has expressed remorse. The joint submission is well within the range of sentence for this offence in these circumstances.
[17] The sentence imposed by the Territorial Court will be varied to substitute a $1,000.00 fine and to quash the driving prohibition. Mr. Rankin will have one year from the date of these reasons to pay the fine or, if he has paid money towards it already, to pay the remainder. In the event that he has paid the full the amount of the fine imposed by the Territorial Court, the difference shall be refunded to him.
Appeal granted
K. M. Shaner
J.S.C.
Dated at Yellowknife, NT, this
7th day of June, 2021
Counsel for the Appellant: Jessi Casebeer
Counsel for the Director of Public Prosecutions: Nakita McFadden
| S-01-CR 2020 000122 |
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IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
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BETWEEN:
MITCHELL RANKIN
Appellant -and-
HER MAJESTY THE QUEEN
Respondent
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MEMORANDUM OF JUDGMENT OF THE HONOURABLE JUSTICE K. M. SHANER
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