New & Notable: Addressing the Scourge of Guns and Drugs

Tyler Batson shot and killed Paul Marcelus in an Ottawa apartment on 17 December 2008. Batson testified at his trial that he shot Marcelus during a struggle that had erupted when he attended the apartment to buy drugs. The Crown had alleged that the shooting was an execution. 
Batson was convicted of second-degree murder – apparently the jury had not found, beyond a reasonable doubt, that the shooting was an execution.
Last week Justice Roy sentenced Batson to life imprison (the mandatory sentence) with an order that he serve 12 years before being eligible for parole. As reported by Andrew Seymour in a 9 September 2011 Ottawa Citizen article, Judge condemns guns, drugs before sentencing Batson to life Justice Roy offered the following comments in support of increasing the parole ineligibility period above the minimum 10 years: “The combination of guns and drugs result in very tragic and serious, deadly consequences”.

The concern over the carrying and use of guns in the community has also recently been noted in the case of R v Chevers, 2011 CarswellOnt 8844, 2011 ONCA 569. Chevers was convicted of attempted murder. The trial judge described the aggravating circumstances in that case as follows:
The facts here are alarming. It calls for, because of the nature of the event and specifically the use of a handgun, greater sanctions for the benefit and welfare of our community and for the public interest.

Here we have a situation where Mr. Chevers, in an unprovoked, premeditated, cold-blooded manner, attempted to murder [the victim], and by mere chance, he missed: probably because he was using a 22 calibre weapon [para 4].

Chevers was sentenced to 15 years jail. He appealed.
The Court of Appeal held that sentences for “planned executions involving the use of loaded firearms” warrants double digit sentences. In upholding the sentence the court noted that the premeditation, use of a prohibited handgun, the appellant’s criminal record and the impact on the community justify such a sentence [paras 8-9].
 
DG Mack

New & Notable: Fighting an Intractable Problem?

Impaired driving has proven to be an intractable problem.  Society's abhorrence of it is palpable.  According to MADD Canada, in 2007 at least 1,239 of the 3,045 motor vehicle fatalities in Canada were alcohol related.  It is not surprising, therefore, that the Ontario Court of Appeal recently recognized the reality that there are - and needs to be - increases in the sentences being imposed in impaired driving causing death cases: R v Kummer, 2011 ONCA 39.
As the dangers of impaired driving have become increasingly evident and as this problem has continued to demonstrate its intractability, the sentences imposed where impaired driving results in death have increased [para 15]; [emphasis added].
In a decision released August 31 Jack Tobin was sentenced to three years for impaired driving causing death: R v Tobin, August 31, 2011 (see copy of judgement at Ottawa Citizen). 
Tobin had been out drinking with friends including the victim, Alex Zolpis.  Eventually the group made their way back to Tobin's truck which was parked in a parking garage in downtown Ottawa.  The group continued to drink in the truck and one of them said "a couple of times to Mr Tobin 'you are not driving' and he replied 'no'" [para 4].  He did drive however.  He first drove his truck up a couple of levels to the top of the parking garage which was uncovered and had two foot wall surrounding it.  Tobin then began doing donuts.  Somehow his friend Zolpis fell out.  He was caught under the truck and was killed.
Tobin pleaded guilty. 
Andrew Seymour (reporter for the Ottawa Citizen) reported Tobin's comments in court at the sentencing hearing:
Jack Tobin said he hoped his "unforgivable" and deadly mistake while driving drunk would be a lesson to others during an emotional apology in court Friday to the family of the friend he killed. 
Others likely had hoped that not only his mistake but also the sentence imposed for it would be a lesson to others.  Some are disappointed at the sentence imposed and feel it will not serve as a lesson.  Zolpis' fiancé offered the following in this regard: "Jack Tobin gets one year in jail [referring to the fact that he will likely be out on parole in one year] and Alex gets his life lost".  (See similar discontent expressed in comments on the CBC).
The discontent with the sentence is understandable perhaps.  A review of recent cases from the Ontario Court of Appeal might have lead some to believe more jail time would have been imposed.
In Her ruling Judge Maisonneuve reviewed some of those cases: R v Ramage, 2010 ONCA 488 and R v Junkert, 2010 ONCA 549.  In those cases the Court of Appeal upheld sentences of four and five years respectively for impaired driving. 
More recently the Court of Appeal upheld a sentence of five years in R v Niganobe, 2010 ONCA 508, four and a half years in R v Turnbull, 2011 ONCA 121. 
While each case will turn on its own facts and there is an almost infinite range of mitigating and aggravating factors, it is apparent that the Court of Appeal is recognizing by upholding an increase in sentencing for impaired driving causing death cases.  
Kumm  er is another example of this trend.  In that case the Court of Appeal upheld a sentence of eight years.  Kummer had no criminal record but other factors weighed heavily in imposing and upholding that sentence:
The appellant did not have a criminal record and he cannot be treated as having one. His driving record, however, is significant. In October of 2007, the appellant was convicted of careless driving and failing to report an accident in relation to an incident in which, after consuming three drinks and allergy medication, he drove onto the runway at the London airport and jumped approximately 60 metres through airport antennas. He then left his car, walked through the airport terminal, and took a cab home. The incident caused $127, 000 in damage to the vehicle and the airport.
The 2007 incident should have served as a "wake-up call" to the appellant. It should have impressed upon him the danger he posed to himself and others when driving in an altered state. Clearly it did not. Following the 2007 incident, the appellant's parents spoke with him about the dangers of drinking and driving. This also obviously had little effect on him. The appellant received one final warning just minutes before the fatal crash. His friend and passenger, Randy Psaila, warned him to slow down. Again, tragically, this warning had no impact on the appellant. While it would be difficult to believe that any person in Canada could be ignorant of the dangers of drinking and driving, the appellant had particular reason to be aware of the risk he posed in doing so. His decision to disregard that risk is an important factor that can and should be considered in determining an appropriate sentence [paras 25-26]; [emphasis added].
The similarities with the Tobin case are notable.  Tobin too had a driving record - 11 speeding convictions and 3 driving suspensions [para 18].  Tobin too had a "wake up call" - another incident of doing donuts after some drinking this time with someone holding onto the roof racks of his car and falling off [para 17].  Tobin also had a brush with the law in regard to impaired driving - on August 29, 2009 he blew 84 and 80 (legal limit is 80) but was not charged [para 17].  Tobin too had warnings just before the fatal incident when one of the passengers said "you are not driving".  Tobin too should have been acutely aware of the dangers of drinking and driving.
Despite these similarities and background the judge imposed a sentence of three years.  In doing so, Her Honour ruled that the "paramount principles of general deterrence and denunciation can be satisfied with a lesser penitentiary sentence" [para 69].
If sentences of four, four and a half, five and eight years have been imposed recently in an attempt to deter and denounce this abhorrent conduct, one might reasonably wonder how a sentence of three years will achieve these objectives.
 
 
DG Mack

New & Notable: Dangerous Indeed

Johnson Aziga was charged with two counts of first-degree murder, ten counts of aggravated sexual assault and one count of attempted aggravated sexual assault. These charges arose out of the offender’s decision to engage in unprotected penetrative sex with 11 separate victims while he was HIV positive. Two of his victims died from malignancies associated with HIV and another five of the victims were infected with the virus [para 4].

The offender was convicted of these offences after trial and sentenced to the mandatory life sentence with a minimum of 25 years before being eligible for parole. The Crown further sought a dangerous offender designation.

Lofchik J considered and ruled upon this application: R v Aziga, 2011 ONSC 4592. Two points were raised for consideration on the application.

First, the offender argued that there was no evidence that he has demonstrated an inability to control his sexual impulses. In rejecting this argument Lofchik J held that:
There is no question on this application that the predicate aggravated sexual assaults and attempted aggravated sexual assault of which the offender has been convicted constitute "serious personal injury offences". I am also satisfied that the convictions for aggravated sexual and attempted aggravated sexual assault were the result of a pattern of repetitive behaviour by the offender showing a failure to restrain his behaviour.

I disagree with the argument of the defence that there is no evidence that the offender by his conduct has shown a failure to control his sexual impulses. The aggravated sexual assault and attempted aggravated sexual assault convictions against the accused are the result of his fraud (i.e. failure to inform his sexual partners of his positive HIV status) enticing the complainants to engage in sexual relations with him in order that might obtain sexual gratification. This in my view is no different than if he had used force to obtain sexual gratification from the complainants [paras 117-118]; [emphasis added].

Second, the offender also argued that since he would not be in the community for at least 25 years the dangerous offender should not be made; it was not necessary as, upon release, he would be an elderly man with a reduced libido and therefore pose a minimal risk. In assessing and ultimately rejecting this argument Lofchik J offered guidance on the timing of the risk assessment to be made on a dangerous offender application.
The elephant in the room of course is that the offender has appealed his first degree murder conviction and the possibility exists that the life sentence may not stand. If he were sentenced to a determinate sentence for the sexual assault convictions, given that he has been incarcerated since 2003 he would be eligible for parole almost immediately. I therefore intend to approach the dangerous offender application on the basis of the sexual assault convictions without regard to the consequences of the murder convictions.
In any event, I am of the view that in an application such as this a judge must consider whether there is a present risk of the offender reoffending. Section 753 does not contemplate a judge considering whether there is a risk of the offender reoffending at some hypothetical time in the future after the offender is released on parole. Such a task would be impossible. I base this conclusion on the analysis of Section 753(b) of the Criminal Code in relation to dangerous offender applications by the Supreme Court of Canada and in R. v. Currie, [1997] 2 S.C.R. 260. Lamer C.J. noted, at para. 22, that, "As long as the offender's past conduct, whatever conduct that might be, demonstrates a present likelihood of inflicting future harm upon others, the designation is justified." [Emphasis added]; [para 122].
 
DG Mack

Comment: Exercising, or is it excising, Crown discretion...

Prosecutorial discretion is a vital aspect of the criminal justice system; in the recent case of R v Gill, 2011 ONSC 1145 Kiteley J delivered a significant blow to the its scope.
Richard Gill was stopped by the police after a 911 caller suggested he might be impaired - in part due to noting a bottle of vodka on the passenger seat of the car. The responding officer quickly formed the belief that Gill had alcohol in his body and made a demand for an ASD sample. Gill, however, apparently was not inclined to provide a breath sample and instead chose to attempt to walk away from the officer allegedly to call a lawyer. Gill was arrested and charged. After trial he was convicted [paras 5-13].

On sentencing the Crown filed notice of increased penalty. In response the accused raised two issues. First, he argued that the imposition of the mandatory minimum would violate section 12; this argument was soon abandoned in light of R v Ferguson, 2008 SCC 6. Second, he argued that the Crown's discretion to file the notice should be reviewed [para 7]. Borenstein J agreed. In so doing he held that the filing of the notice was not within the "core prosecutorial discretion" of the Crown and was reviewable on a standard of reasonableness - otherwise, the court held, section 727 would violate section 7 of the Charter. In that case, Borenstein J held the filing of notice was not reasonable [paras 8-13]. The Crown appealed.
On appeal Kiteley J first considered the issue of whether the filing of notice amounts to an exercise of core prosecutorial discretion [paras 31-48]. In doing so, Kiteley J first noted the Supreme Court's ruling in Krieger v Law Society of Alberta, 2002 SCC 65 wherein the Court defined core prosecutorial discretion as going to decisions about the nature and extent of the prosecution. Applying the principles from Krieger and other cases Kiteley J concluded:
...While it must be served before plea, the Notice of Intent to Seek Increased Penalty is an aspect of the sentencing phase of the trial, after the offender has been convicted. There is no longer a question of initiation, continuation or termination of the prosecution. Rather the decision to file the Notice could be characterized as tactical [para 44].
Having decided that the decision to file notice is not a core prosecutorial discretion Kiteley J turned to consider if the discretion was reviewable and on what standard [paras 49-58]. On this point Kiteley J held that where there was a basis to find that filing of the notice would violate section 7 a review as permissible; the standard of review being reasonableness.
Applying that to the appeal, Kiteley J held that it was appropriate for the trial judge to review the Crown's discretion and moreover, that the trial judge correctly found the Crown's exercise of discretion to be unreasonable; Kiteley J concluded: [The trial judge] was simply stating the obvious, namely that a decision based solely on four prior very dated convictions did not constitute a reasonable exercise of discretion [emphasis added].
With respect, I would not agree. Leaving aside for the sake of this comment the difficulty in the conclusion that the Crown's exercise of discretion to file notice based on four prior convictions is unreasonable, the real difficulty lies in the premise underlying the decision to review the Crown's discretion in the first place. The premise appears to be founded in a determination that the filing of notice could constitute a violation of section 7; this violation, in turn is founded on the premise that the sentencing scheme, as the Crown proposes it should be read, "violated a principle of fundamental justice, namely that Parliament or the Courts should be responsible for defining sentence, not the Crown" [para 54].
This premise should be rejected. Consider the instructive analysis of Rosborough J in R v Haneveld, 2008 ABPC 382:
At the outset, it must be recognized that some prosecutorial elections clearly falling within the doctrine of prosecutorial discretion as described in Krieger can have important effects on the sentencing process. An election to proceed by indictment, for instance, can have the effect of increasing the statutory maximum sentence for an offence with which the accused is charged. That, in turn, becomes a relevant consideration on the sentence hearing. See: R. v. Solowan, [2008] S.C.J. No. 55, 2008 SCC 62.
In his work, Due Process of Law (Toronto, Carswell Co. Ltd. 1977), Prof. S. Cohen makes note of the manner in which a Crown Prosecutor's election as to mode of trial can limit the Court's sentencing powers. He states (at pp. 143-4):
In allowing the prosecutor to select the mode of procedure (summary conviction or indictment proceedings) an important function of the judiciary is effectively usurped -- i.e. control over the choice of penalty. This is particularly the case when the offence itself carries a mandatory minimum jail term for proceeding by indictment. True, in the final analysis it is the judge who imposes and selects the appropriate sentence but the mode of procedure itself may deprive him of resort to dispositions which are more appropriate to the particular factual circumstances of a given offence. For example, where a minimum penalty is provided for an offence triable upon indictment (irrespective of whether that minimum penalty involves incarceration or not) the Criminal Code provisions concerning absolute and conditional discharges are not available, no matter how desirable." [Emphasis added].
This reasoning was adopted in R v Bolender, 2010 ONCJ 622. I would similarly adopt it. The decision by the Crown to file notice is one that goes to the nature and extent of the prosecution; such discretion, therefore, should only be reviewable in accordance with the principles in R v Power, [1994] 1 SCR 601.
DG Mack

Quotable Quote: Sentence - Consequences Matter

The recent ruling in R v Woodward, 2011 BCCA 251 provides a quotable quote on the importance of consequences in sentencing.  In Woodward the appellant had attended a local bar that was predominantly, but not exclusively, frequented by the gay, lesbian and transgender crowd. The victim, William Dowrey was at the bar that evening as well; he was 61 years old and was celebrating his retirement.  Neither Dowrey or the appellant were gay [para 2]. During the evening Dowrey on two separate occasions approached the appellant and offered to buy him a drink.  On the first occasion the appellant stated "No. I'm not like that".  On the second occasion Dowrey asked the appellant if he wanted to play pool and the appellant stated "I don't want a drink, I don't want to play pool, I just want to be left alone".   
Shortly after this incident the appellant had apparently decided to leave; before doing so, however, he approached Dowrey.  He punched Dowrey in the face.  The punch was of such force that he knock Dowrey unconscious.  Dowrey fell and struck his head.  As a result of the punch and fall Dowrey suffered a catastrophic brain injury [para 9]. 
Dowrey survived.  He was in the hospital for four months.  Dowrey has "permanent cognitive, memory, behavioural, and psychomotor disabilities.  He will forever be incapable of living on his own" [para 11].
The appellant was convicted after trial [2010 BCPC 177] and sentenced by the trial judge to six years jail [2010 BCPC 271].  On appeal the appellant argued, inter alia, that the trial judge erred by placing too much emphasis on the victim's injuries.  In doing so, the appellant asserted that there was an "element of chance" in the injuries and that the injuries were unusual for a single punch [para 31].  The Court of Appeal rejected this argument and offered the following quotable quote:
Once again, the facts do not support this submission.  As previously mentioned, Mr. Woodward went out of his way to deliver a punishing blow to a person who could not have anticipated being attacked and was, therefore, completely defenceless.  While Mr. Woodward may not have intended to change Mr. Dowrey's life forever, he did intend to harm him by using force that Mr. Woodward knew, or ought to have known, had the potential to inflict serious injury.  The fact that this was, to use Mr. Woodward's terminology, a 'one punch assault' does not lessen the gravity of what he did" [emphasis added] [para 32]

DG Mack

Quotable Quotes: Dangerous Driving - Sentence

The accused was charged with two counts of dangerous driving causing bodily harm and one count of dangerous driving causing death. The accused was operating his vehicle on the QEW at 189 km/hr as he approached another vehicle from behind. The accused struck the vehicle violently from behind at approximately 178 km/hr; one of the occupants was killed, the other seriously injured. The passenger in the accused's vehicle was also seriously injured.

The accused pleaded guilty and was sentenced to 3 years in the penitentiary; he also received an 8 year driving prohibition. In imposing sentence, Nadel J commented on sentencing for dangerous driving and offered the following thoughts on the speed at which the accused was driving:
Sentences have tended to increase in severity for dangerous driving causing death.
Considering the speed at which Mr. Fitt was travelling it is not a misuse of language, in my view, to describe Gordon Fitt's action that night as an act of racing. While it is true that he was not competing in a race against another car on the roadway, he was racing his car down the highway no less than a racing car driver might do when practicing on a track empty of any cars other than his own [paras 35 and 44].
DG Mack

New & Notable: Sentencing

The accused was charged with robbery arising out of a home invasion. The accused broke into the home of the victim to rob him of Oxycontin that the accused believed the victim had previously stolen from a pharmacy. The accused was convicted. At the sentencing hearing the Crown sought a sentence of eight years; the defence sought a sentence of three and a half years. The accused had a significant criminal record including four penitentiary sentences [para 2]. The trial judge considered the fact that the accused had been on release at a treatment facility, Harvest House, and granted the accused 1.6 to 1 credit for that time. Taking that into account, the trial judge imposed a total sentence of three and a half years. The Crown appealed.

Two issues were dealt with by the Court of Appeal. First, the issue of dead time was considered. On that point, the Court of Appeal found that the trial judge erred. While acknowledging that R v Downes, 2006 CarswellOnt 778, [2006] OJ No 555 (CA) provides authority for such credit, the court emphasized that such credit is not automatic (see R v Rice, [2004] OJ No 5197 (CA) and R v Fobister, [2010] OJ No 5989) and in the present case it was an error to grant it [para 10].

 

Second, the court addressed the fitness of the sentence. While upholding the sentence – in the rare circumstances of the offender – the court nonetheless provided the following helpful guidance: “We agree with the Crown that the sentence imposed is outside the normal range of five years and up for a home invasion robbery…In this case, giving priority to the principles of general deterrence and denunciation, an appropriate sentence would have been a period of incarceration of 8 years” [para 11].

DG Mack

Quotable Quotes: Impaired Cause Death Sentence

In the recent and horribly tragic case of R v Kummer, 2011 ONCA 39, 2011 CarswellOnt 282, [2011] OJ No 234 the Ontario Court of Appeal upheld a sentence of eight years imposed on the accused who pleaded guilty to several offences including impaired causing death relating to a collision which killed three people including two 12 year old boys.  
In upholding the sentence, the Court of Appeal offered some notable insight into sentences in impaired driving cases where death is caused: 
As the dangers of impaired driving have been increasingly evident and as this problem has continued to demonstrate its intractability, the sentences imposed where impaired driving results in death have increased [emphasis added] [para 15].
While it would be difficult to believe any person in Canada could be ignorant of the dangers of drinking and driving, the appellant had particular reason to be aware of the risk he posed in doing so.  His decision to disregard that risk is an important factor that can and should be considered in determining an appropriate sentence [para 26]. 

DG Mack

Quotable Quotes: Sex Assault Sentence

R v Oshodin, 2011 ONSC 1152, 2010 CarswellOnt 10583: The offender forcibly removed the victim's clothing, performed digital penetration and attempted sexual intercourse.  In determining the appropriate sentence was one of 38 months incarceration, Thorbun J offered the following comments on the guiding principles for such a case:
Mr. Oshodin's crimes are serious.  He sexually assaulted and forcibly confined the victim.  While rehabilitation is always an important consideration, in cases that involve sexual assault and physical violence it is important to denounce Mr. Oshodin's conduct and to deter him and other like-minded persons from engaging in this kind conduct [para 22].
DG Mack

New & Notable: Sex Assault Sentence

The Ontario Court of Appeal recently reaffirmed its direction in R v DD, 2002 CarswellOnt 881, [2002] OJ No 1061 (CA) that "as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms".  
In  R v IF, 2011 ONCA 203, 2011 CarswellOnt 1667, [2011] OJ No 1110 the Court of Appeal overturned a 2 year sentence, imposing 4 years in the penitentiary.  In IF the respondent sexually assaulted his three step-granddaughters over an eight-year period.  The abuse included touching and fondling their breasts and vaginal areas; performing oral sex on one victim; having two of the victims watch pornographic movies or magazines while he masturbated; and having one of the victims masturbate him [para 2].  Despite recognizing an early plea and acceptance of responsibility, the Court of Appeal held that 2 years was demonstrably unfit. 

DG Mack