R. v. Earnshaw, 2013 BCSC 2272

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Earnshaw, 2013 BCSC 2272 Date: 20131018 Docket: 60594-1 Registry: Chilliwack Regina v. William Earnshaw Before: The Honourable Mr. Justice N. Brown On appeal from: A decision of the Provincial Court of British Columbia, dated November 8, 2012 ( R. v. Earnshaw , Abbotsford Registry No. 73613-KB6) Oral Reasons for Judgment Counsel for the Crown/Respondent: S.H. Quendack Appearing as Agent for D.G. Schultz, Counsel for the Accused/Appellant: A.K.M. Falk Place and Date of Hearing: Chilliwack, B.C. August 15, 2013 Place and Date of Judgment: Chilliwack, B.C.

October 18, 2013 Overview [ 1 ] THE COURT: I am prepared to give my decision on the appeal. In the interests of time, I am not going to mention most of the citations and I will not read out some of the quotations from the cases. Those can be added later when the transcript is requested, but I will give you the reference. Usually I like to have a copy of the quotations prepared for you, but I do not have those today. [ 2 ] Mr. Earnshaw appeals a sentence he received from The Honourable Judge C.J. Rounthwaite on November 8, 2012.

The Provincial Court judge rejected the joint sentencing submissions of counsel, which recommended a probation order. Instead, the judge imposed a jail sentence of three months and one year's probation. [ 3 ] The appellant had pleaded guilty to the charge of failing to comply with a term of the probation order, contrary to s. 733.1 of the Criminal Code , R.S.C. 1985, c. C-46 [ Criminal Code ]. His breach consisted of failing to abide by with the term of the eight month probation order that prohibited him from having any contact with his spouse, Ms.

D. [ 4 ] His January 21, 2011 sentence had been imposed by the same judge who imposed the sentence the appellant is appealing today. Procedural History and Sentencing Hearing [ 5 ] The judge adjourned the first sentencing hearing date to allow time for obtaining a transcript of the previous sentencing hearing and an updated risk assessment. The risk assessment obtained noted the conduct of both the appellant and Ms.

D. had improved since the previous hearing. [ 6 ] During the adjourned part of the sentencing hearing, which occurred on September 6, 2012, defence counsel attempted to convince the judge the circumstances of the appellant and Ms. D. had changed and that a probation order was no longer necessary.

The sentencing judge expressed concern about the appellant's record, in particular, that when she sentenced on the last occasion, if he offended, he would receive a longer sentence than three months. [ 7 ] Although the step-up principle theoretically had called for a longer sentence than the judge had imposed previously, Crown and defence counsel agreed, that, in the circumstances, another sentence of probation was appropriate. The probation officer, the arresting officer, and the victim services officer who were very familiar with the history and circumstances of the offender, supported he joint submission. Ms.

D. also supported it. [ 8 ] Neither during the September 6, 2012 sentence hearing nor on November 8, 2012 when the judge pronounced sentence, did she warn defence counsel or Crown that she was minded to reject the parties' joint submissions for sentence and that she intended to impose a jail term three times longer than the one she had imposed last time.

Circumstances of the Offence [ 9 ] I will discuss briefly the circumstances of the offence now. [ 10 ] Detective Kevin Murray serves in the Domestic Violence Unit of the Abbotsford Police Department. Ms. D. had called him twice on July 2, 2012 about an injured blue jay in her yard. When listening to a third message from her, he heard the appellant's voice in the background saying something to Ms. D. [ 11 ] The next day, Detective Murray and a victim services officer attended Ms. D.'s residence. They found the appellant there. Ms. D. told Detective Murray she had invited the appellant to be there.

Detective Murray decided not to arrest the appellant and allowed him to leave. [ 12 ] Ms. D. later resiled from her earlier remark. She told Detective Murray, in an audio recorded statement, that the appellant had been coming to her residence in violation of the no-contact order and that he had slept over the previous night. She confirmed he had not physically assaulted her, but had been verbally abusive.

She also told Detective Murray she did not believe sending the appellant to jail was the answer because he was "incapable of appreciating the concept of cause and effect" and that she would like to see his probation extended. [ 13 ] During the previous sentencing hearing, the appellant apparently mouthed words towards Ms. D. The judge interrupted Crown counsel's submissions to admonish him for his doing so. This exchange then occurred: The Accused: I understand that, but I was made to understand that she is a witness. Many times -- I can go -- 'cause Kevin Murray and – The Court: Mr. Earnshaw, I dealt with you.

We have been through this -- The Accused: Yeah. The Court: -- far too many times. I have made it very clear it’s the Court's no-contact order. She is not allowed to invite – it doesn't matter whether she wants to have contact with you or not, it is the Court who has made the order -- The Accused: I know. The Court: -- and to see you breach the order in court, in the middle of a sentencing hearing, does not bode well for the future. [ 14 ] The judge mentioned the possibility that some convictions could be missing from the record.

She expressed concern about the wearing effect of the appellant's conduct on his elderly parents, the first of the judge's expressions of her concern about the appellant's attitude towards a no-contact order. The Court: Well, it always -- Ms. Schmidt: -- of Earnshaw -- The Court: I'm surprised. I have to say -- [and then I will get to the essence here now]. I wonder whether there is more here, because my best guess is it began far before October -- before 2010. I remember Judge Maltby dealing with this on an extensive basis.

And it's always better when I recognize parents who are coming in here and -- are -- when they should be spending their years enjoying their retirement and they continually are dragged back for an adult son who continually -- continues to engage in this kind of behaviour. But I have to think there’s -- there are missing convictions. [ 15 ] Crown counsel placed the appellant's criminal record before the judge.

In her reasons for sentencing the judge mentioned a November 10, 2006, common law peace bond (mistakenly referred to by the judge as a s. 810 recognizance) and three previous convictions for either breaches of no-contact or no-go orders related to Ms. D. One of those convictions was the one the judge had sentenced the appellant on 17 months earlier. [ 16 ] Crown counsel stated the Crown's position on sentencing this way: Ms. Schmidt: Well, because of his record, the Crown's position should be jail, but I'm not taking that position. When I speak to [Ms.

D]., when I speak to Detective Murray, and Sandy Jawanda, all believe that there are some positives in his life in the community and that it would be of no benefit to him to go back to jail. We’re seeking a period of probation, that he again be monitored by a probation officer and take any programming that they recommend he take, whether it’s again a repeat of the programming or something else. Again seeking a no-contact, direct or indirect, with [Ms. D.], with no exceptions, and a no-go to her residence within 100 metres. And no weapons or firearms. And suggesting that that be a probation order of two years.

And that is in light of … a[n] early guilty plea. Even though I have to say it was set for trial, that -- it was call-dated early enough. In my position, it is still an early guilty plea. We take that position, despite his record. [ 17 ] Defence counsel attempted to convince the judge that a no-contact order was no longer necessary. He explained why the matter had come before the Court as and when it did. Mr. Schultz: The reason why we are here today, as opposed to somewhere down the line, is because of [Ms. D.] contacting me repeatedly, saying to me we have to deal with this no-contact order.

That's why we're here today. That's why the plea is entered today, as opposed to some other time when whatever needs to happen has happened. That's why. I assured her that she would have an opportunity to speak to Her Honour. That's why she is here. Everybody speaks for her, everybody speaks for [Ms. D.] and tells [what] one … compromised person has said or thinks to a – what another brain-injured person has said or thinks. And I’ve also walked through this file

in various ways for many years, so I live – with this one as well, and I -- these are all wonderful people that are here, and Detective Murray is doing his job in his own way. [ 18 ] Defence counsel confirmed that Detective Murray had never seen Ms. D. with any injury caused by the appellant. Witnesses Ms. D. [ 19 ] I will refer briefly to some of the witness evidence. [ 20 ] Ms. D. testified. She explained she had asked the appellant to come by because it was the twenty-fifth anniversary of her mother's death. She was upset about it. The trial judge summarized Ms.

D.'s evidence at para. 6 of her reasons this way: [6] [Ms. D.] went on to say that she has seen a positive difference in Mr. Earnshaw, that he has gotten away from drugs, and that if he is feeling really angry, he now leaves, he walks away. She told me that she feels no danger, she feels safe, that he knows to leave, and she thinks they should get used to the freedom of being able to see each other without living together. While she is not at this point intending to live with Mr. Earnshaw, she is, I think, hoping to be able to see him about the community. [ 21 ] Ms.

D. also mentioned the appellant's verbal abuse, and she acknowledged she was verbally abusive toward Mr. Earnshaw, as well. Dr. Paterson, appellant’s father [ 22 ] The appellant's father, Dr. Patterson, testified briefly. He confirmed Mr. Earnshaw suffers from a serious head injury. He confirmed their son’s problems had been overwhelmingly stressful for them. His wife's health is not good. He said Mr. Earnshaw cannot continue living with them. [ 23 ] He explained that when the appellant lived with them, Ms. D. phoned all the time. Dr. Patterson said, "I think and I do know that Ms.

D. has definitely called a million times, you know, whatever, and demanded he had come over a thousand times and 'cause we hear both sides, right? So – but that phone is a problem". [ 24 ] The judge then commented that when she last sentenced the appellant the situation was the same: The Court: And I am sure we dealt – that was the situation back -- last time in terms of [Ms. D.] certainly phoning all the time, and I remember you saying that, that it was a problem back then. So what I would have told both of them, but in particular Mr. Earnshaw, that this was the Court's no-contact order.

It didn't matter what [Ms. D.] did, he is not allowed to contact her. But in any event, I think probably none of us are surprised that they’ve continued doing what they were doing before. Information tendered about the appellant’s brain injuries [ 25 ] Defence counsel did not tender an expert medical/legal report on the cause and effect of Mr. Earnshaw's brain injuries. He informally offered the judge medical background information. Dr. Patterson had given him. It included brief points Dr. Patterson had extracted from a professionally authored

article that explained the consequences of the type of brain injury Mr. Earnshaw had. [ 26 ] Counsel advised the judge that the first head injury occurred when the hood of another vehicle crashed through Mr. Earnshaw's windshield and embedded in his forehead. This resulted in a serious prefrontal cortex injury, a long coma, and permanent behavioural consequences. [ 27 ] Defence counsel also explained that while Mr. Earnshaw's intelligence quotient (IQ) was still intact, his ability to logically think through options and consequences remained impaired. He cannot connect everything and make appropriate decisions.

His executive decision making function is impaired. [ 28 ] Defence counsel also advised the judge that the disability insurer had decided to allow Mr. Earnshaw to seek employment, which had proved beneficial. He had found work as a roofer and was earning $85.00 a day when he worked. [ 29 ] Counsel further explained saying: Mr. Schultz: [I]n some area’s he is doing quite well, but he does have some significant challenges that, in my submission, are relevant to this sentencing function and what kind of culpability is attached to the breach of the no-contact order.

This isn't just an ordinary guy with an ordinary girl is what I am trying to say. It’s a challenged situation, which takes it into a slightly different realm. [ 30 ] This exchange then took place between the Court and defence counsel: The Court: Absolutely, but he has been before the Court often enough to understanding that no means no -- … He knows that, he understands that, he chooses to disobey. Mr. Schultz: I guess that's what I'm trying to say. That's what the

article is trying to say. That's exactly the rational view of it, but it – the rational view of it doesn't exactly fit in quite the way we would like it to. And I think that's – The Court: No, but even – I guess here -- an eight-year-old can understand no, you not – are not allowed to do something, and

certainly they may not be able to think of all the consequences in terms of their actions, but they still know basic "can't do it". I’ve had discussions with Mr. [Earnshaw] or previous times when I've told Mr. Earnshaw that he's not allowed to see her, he's pretty much told me that she's his wife and really -- there's nothing I can say -- to prevent him from seeing her. It seems to me. Mr.

Schultz: I think in fairness, that – I think there's not – nothing about the judge in the case, but to get his mind around the fact that society, for an indefinite period, would continue to not have – not give him the freedom to pursue the relationship, with both of them trying, from their corners, to continue that relationship. It's a bit hard for him to get his mind around that. The Court: Well -- and the – Mr. Schultz: I -- am frankly, it's – I'm having trouble with it myself.

At a certain point it becomes tiresome for me to continue to ask, after 18 months, that we not give them the freedom to at least somehow ease into a normalization of their relationship, when there’s been no new substantive charge that brings a safety concern. I'm not sure what else I can say. The Court: No, but what we do have is a rather amazing pattern of – it sounds like a rather amazing pattern of disobeying a court order, really thumbing his – thumbing the nose at the Court.

However, I also in particular wanted to know about Detective Murray overhearing the conversation, so for example, comments "definitely a spoiled alcoholic," that's not a respectful, positive communication. Mr. Schultz: I think the – in fairness, and here's where I take both sides. I think verbal inappropriate comments are ones that the -- Earnshaw -- or the Pattersons would say go back and forth. And I would not be at all surprised about verbally inappropriate comments being made. I think [Ms.

D.] was pretty clear about that. [ 31 ] The judge then advised counsel she wanted to read what she had said to the appellant at the previous hearing. She also wanted the probation officer to provide an updated risk assessment. To allow time for that, she adjourned the hearing to November 8, 2012. The judge imposed sentence then, two months after the sentencing hearing. The Sentence [ 32 ] As mentioned, the appellant's counsel focussed, almost all of his submissions on whether the no-contact order was a necessary term of the probation.

Apart from that point of difference, the parties agreed that a further term of probation was a fit sentence. The updated risk assessment the Court received (before the judge imposed sentence) did not alter, the Crown's view, however, that a no- contact order of some kind was still necessary because counsel believed Ms. D. remained a vulnerable person. [ 33 ] The judge imposed a sentence of three months in jail and one year's probation. The probation order prohibited contact between the appellant and Ms.

D. except in the presence of an accredited counsellor or third party approved of by the probation officer in writing. [ 34 ] Defence counsel forcefully submitted at this appeal hearing that the sentence came as a “shock”, "out of left field" and he felt somewhat at a loss for words at the time. He explained that he had no expectation the judge intended to reject the joint submission and its call for a period of probation.

He submitted that before the judge imposed sentence, she conveyed no sense that she intended to reject the joint submission, which was also endorsed by the probation officer and the two police officers involved in the case.

Defence and Crown divided only on the matter of whether the Court should order a continuation of the no-contact order term. [ 35 ] Defence counsel submitted that if he had any sense the judge was considering a three-month sentence of incarceration, he would have asked for an adjournment to confer with the appellant and to seek either leave to submit additional evidence or to withdraw the guilty plea.

Reasons for Sentence [ 36 ] The judge stated the following in her reasons for sentence, at paras. 4, 8, 11-20, and 34: [4] Crown, in their sentencing submission, noted that a jail sentence should follow as a result this repeated pattern of breaching. However, noting that there were certain positives in Mr. Earnshaw’s life, Crown took the position that there was no benefit to Mr.

Earnshaw to go to jail, and instead sought a further period of probation for two years, with a variety of terms, including a no-contact and a no-go. … [8] The position of Crown is that they are not seeking jail with respect to this, albeit they do acknowledge that general sentencing principles, especially a step-up principle, would certainly require jail time. … [11] I do note that much of what is included in the risk assessment deals with matters where charges were laid and no conviction was entered, so allegations only. It does show a very significant pattern, however, of a problematic relationship between Mr.

Earnshaw and [Ms. D.], involving police attendance and indeed criminal charges on a surprising number of occasions. [12] The risk assessment notes that [Ms. D.] has made a number of positive changes in her life, which the police hope will make her less vulnerable to continued attacks. She has good supports in the community, a really good relationship with the police and other support services, so she is becoming less vulnerable. [13] As the risk assessment states, while there is evidence to suggest that Mr. Earnshaw has brazenly and repeatedly violated his no-

contact order with [Ms. D.], to his credit there have been no new reported assaults during those interactions. The last conviction for assault was back in 2010; hence I suppose what various people are referring to as some of the positive changes that have occurred over the last two years. So again, there is a recommendation for a term of probation, with a continuation of the no-contact for a period of two years. … [15] As I said last time he was being sentenced, on July 30th, 2010 Mr. Earnshaw was convicted of two breaches of his undertaking in relation to [Ms. D.], one a no-contact and one a no-go.

He received a time-served sentence of 34 days, plus two years of probation, which included a term of no contact whatsoever, and not to go to her home. I then went on to say: I find it amazing that either on the very day you were sentenced, or it looks like the next day, you then completely disobeyed your order to have no contact with her and you assaulted her. For that, you ended up being convicted in December of 2010 and received a jail sentence of 60 days.

While you were in custody on that 60-day sentence, from the Remand Centre and then immediately as soon as you got out of custody, you continually phoned her, so some 14 phone calls over a space of about a week. You were trying to send love messages with music attachments, when a court clearly had told you to stay away from this person, that you were not allowed to have any contact with her. I went on to say: What you just do not seem to get is even though you are married, she does not have the power or the ability to invite you to breach your order, to say let's forget about it, pay no attention, et cetera.

She does not have that ability. The court has said no contact; you must obey that no contact. [16] I then told you that the amount of jail time that I had in mind, taking into account your criminal record, the circumstances of the offence, and your background, was a three-month jail sentence. After reflecting on defence submissions, and taking into account Crown's position for 30 days, I went on to accede to Crown's position of 30 days. But, I then continued: I am trying to emphasize to you if you are back before the court on another breach of your no contact, or having anything whatsoever to do with [Ms.

D.], you can expect to spend close to the maximum amount of time in jail. My reasoning? July 30th, you were sentenced on two breaches of the no-contact. The same day, or the very next day, you breach the no- contact and assault this person. December the 7th, you were convicted of that, and the same day and in the week following, you immediately again have contact with her, through repeated phone calls. Every time you come to court it seems to prod you into contacting her and disobeying your court order and committing crimes against her.

At paragraph 9: I want you to know you are looking at three months in jail in total, and if you come back before me disobeying these no-contact orders or having anything to do with [Ms. D.], you will know that I will be considering three months or more as the starting point for jail. Do you understand that?

So the next time it pops into your head about oh, the courts don't know what they're talking about, this is marriage before God and we have no business or no right telling you not to have contact with your wife, just know that if you do contact her, you will be going to jail for something in the range of three months or more. Do you understand that? You've said you do. And you answered "yes." [17] Mr. Earnshaw, there has been a continuation of all of the same circumstances, the same statements by you in this proceeding as there was in the last proceeding and in the proceeding before that.

This has nothing to do with marriage or what goes on between spouses. This has everything to do with a person who has a history of crimes of violence against a particular partner or against partners, and then a continued pattern of disobeying court orders. You have two s. 810 recognizances, you have the assault conviction December of 2010, you have three previous convictions of breach of your no-contact/no-go in relation to this same person.

You are now back before the court on a new one. [18] Notwithstanding the position taken by Crown, notwithstanding the submissions of your lawyer, I am satisfied that you were more than sufficiently warned about a three-month jail sentence the last time you were before the court on exactly the same thing. This court will follow through with what you were warned of last day. There will be a sentence of three months imprisonment. So you will be going to jail from today's date for a period of three months. [19] Following the expiry of the period of imprisonment, there will be a further period of probation.

With respect to that, I am mindful of two things; number one, the wishes of [Ms. D.], her hope that she is not significantly at continued risk in relation to you; and the belief of the police who deal with you, that there have been some positive changes over the last two years involving both you and [Ms. D.] [20] I also note that there have been no further convictions for crimes of violence since 2010. For that reason, following the expiry of the jail sentence, there will be a period of probation for one year. There is going to be a modified no-contact.

I am going to hope that you are able to have contact in the community and in the presence of a counsellor without there being any further criminal offences, but you are not going to be allowed to have contact in private in your respective homes. After six months of having contact in the community, if things have gone well, if there have been no further problems, if the police have not needed to be called either by either of you or by other members within the community, if you have six months with no difficulties out in the community, then I would invite you to come back and ask for a change in the order.

I understand the police are monitoring both of you very actively, so if there are problems, I am sure the court will hear about them. My hope is that six months of community contact will allow what [Ms. D.] was talking about: You getting used to the freedom of seeing each other without living together, but also without either of you being assaulted. …

[34] Okay. She is going to have to get somebody else to help her with her garden or doing work on the house. And again, I am takinginto account the fact that there have been no new charges of violence in the last two years. I am telling you if you get through six monthsof obeying this order and having contact in the community without difficulty, then come back and I will change the order in order to easethe no-contact. But if you just go do your own thing, if you are having contact at home, then do not come back and ask for a change.

Grounds of Appeal [37] The grounds of appeal assert that the judge erred in law in: 1. Failing to take into account the principles of sentencing set out in s. 718 of the Criminal Code, namely, whether the offenderneeded to be deterred from committing offences; whether it was necessary to separate him from society; whether incarceration wasnecessary to rehabilitate the offender, and whether incarceration would do anything to promote a sense of responsibility in him. 2. Failing to consider other sentencing principles set out in s. 718.2(

a) namely that none of the aggravating circumstances set outapplied. 3. Rejecting a joint submission for a non-custodial sentence that was not contrary to the public interest or would in any way bringthe administration of justice into disrepute. 4. Rejecting a joint submission for a non-custodial sentence without warning and failing to provide an "informed opportunity" forfurther submissions to support that submission regarding a non-custodial sentence or to withdraw the guilty plea. 5.

In giving a reason for the custodial sentence that is not an appropriate principle of sentencing namely that nearly two years earlierwhen the same offender was before the same Court, the Court had warned the offender it would consider three months jail or more as astarting point for a further breach irrespective of the circumstances of the breach, the offender, or the relevant sentencing principles. [38] During the hearing of this appeal, Crown counsel agreed it was appropriate for the appellant's counsel to summarizeMr. Earnshaw's background.

I note not all the details regarding the appellant's history of brain injuries were before the sentencing judge. [39] The appellant is 50 years of age; he lives with his parents, or he did at the time; his father is a physician. In 1986, when theappellant was in Grade 11, he suffered a serious head injury in a motor vehicle accident. I mentioned that earlier. In 1987, while workingon a roof, he sustained another serious head injury. In 2001, during a home invasion he sustained another serious head injury.

Thegunshot exited his temple. [40] His head injuries cumulatively resulted in significant cognitive deficits that diminish his ability to make connections and hiscapacity to organize his thoughts and actions. As mentioned, he is married to Ms. D. She earns a limited amount of money and managesto get by. She is a vulnerable person, but stable. [41] When the last breach occurred, a month remained in the term of probation. No prior breach had been reported before the onethat led to the appellant's arrest. Given Ms.

D.'s statement to Detective Murray, however, it appeared the appellant had violated the no-contact order more than once during the period of probation. [42] The matter had originally been set for trial on a not guilty plea. Counsel briefly outlined some defences he meant to raise. Theseincluded an argument that the no-contact order expired with the probation order, the fact that Ms. D. had been asking the appellant to seeher, and evidence that would raise a reasonable argument that Mr. Earnshaw had the necessary intent, or alternatively, lacked thecapacity to form it.

However, based on the joint submissions, the appellant decided to enter the guilty plea. [43] I will turn first to the matter of the judge's rejection of the parties' joint submission and her imposition of a jail term three timeslonger than the one she had previously imposed. [44] Counsel for the appellant submits the judge erred because she failed to warn counsel she intended to reject counsels' pleaagreement.

Appellant's counsel, therefore, had no opportunity to make further submissions or, alternatively, to apply to withdraw hisguilty plea. [45] Counsel further submits the judge erred in failing to consider the joint submission seriously, which I think would be bettercharacterized as a ‘failure to give due deference’ to it. [46] Finally, the appellant submits the trial judge erred in failing to give reasons why she rejected the parties' joint submission onsentence. [47] The appellant relies on R. v. T.M.N., 2002 BCCA 468 where Chief Justice Finch (as he was at the time) quoted the OntarioCourt of Appeal in R. v.

Dorsey (1999), (ON CA), 123 O.A.C. 342 at para. 11: [11] ... The trial judge must, of course, give serious consideration and respect to a joint submission. The submission should bedeparted from only where the trial judge considers the joint submission to be contrary to the public interest and a submission which, ifaccepted, would bring the administration of justice into disrepute. [48] Defence counsel submits this high threshold intends to foster confidence in a person who has given up their right to a trial. [49] Crown counsel concedes this is an accurate statement of the law elsewhere in Canada.

But in British Columbia, he points out, itis not settled law and the Court of Appeal has commended a less stringent test in other cases. [50] Crown concedes that if a sentencing judge intends to reject a joint proposal the preferred procedure is for the judge to tell the

parties they are so inclined. Similarly, they should invite further submissions and give the offender an opportunity to apply to withdrawthe guilty plea. While preferable, however, the failure to do so does not establish an error in principle. In support, Crown counsel pointsto the often cited R. v. Pretty, 2005 BCCA 52 [Pretty] at para 2: [2] ... The judge can reject the joint submission but ought to give reasons for doing so and not disregard it or overlook it.

Theauthorities in this Court state that it is preferable for the judge to make plain the reasons for the concern with the joint submission so thatcounsel can place any additional relevant material on the record for a possible appeal. However, the fact that the judge does not, beforegiving reasons for sentence, state concerns he has with respect to the joint proposal does not mean that an appeal court must find thesentence to be unfit and reduce it to that proposed in the joint submission. [51] See also R. v. R.R.B., 2013 BCCA 224; and on the other hand, see the Ontario Court of Appeal decision of R. v.

Hill, 2013ONCA 572 which held a trial judge should not impose a sentence which is significantly above that proposed by the Crown without firstgiving counsel the opportunity to make submissions (see also R. v. Hagen, 2011 ONCA 749; and R. v. Poorsarwar, 2012 ONCA 799). [52] In R. v. Fuller, 2007 BCCA 353 [Fuller] the Court of Appeal considered an appeal of a sentence in which the trial judgebelieved the offender had no realistic prospect of rehabilitation; and the judge said as much during submissions. The parties had basedtheir joint submission largely on that doubted prospect.

Madam Justice Prowse referred to the same paragraph Crown counsel pointed toand which I have just read. In that case, however, she found the judge had given fair warning to counsel (through remarks made duringsubmissions) and that these remarks sufficed to satisfy the Pretty principle. [53] Justice Blok dealt with the question of a rejected joint submission in R. v. Dulay, 2013 BCSC 188. At paras. 36 and 37 he states: [36] I turn now to the question, when may a sentencing judge depart from a joint submission? The test to apply is still a matter ofunsettled law: R. v.

Roadhouse, 2012 BCCA 495. [37] In Roadhouse, supra, the Court of Appeal acknowledged two lines of authority that set out different statements of the test, but itdeclined to resolve the issue. The two formulations are as follows: 1. The joint submission should be departed from only where the trial judge considers the joint submission to be contrary to thepublic interest and is a submission which, if accepted, would bring the administration of justice into disrepute: R. v. Dorsey (1999), (ON CA), 123 O.A.C. 342 [Dorsey], approved in R. v. T.M.N., 2002 BCCA 468; 2.

The trial judge ought to give a joint submission considerable weight but in the end the submission can be rejected if thesentencing judge concludes that the proposed sentence is not fit: R. v. Bezdan, 2001 BCCA 215. [54] At para. 45 of Roadhouse, supra, Madam Justice Ryan recalled what the Court had previously said about the importance of aplea bargain in the administration of criminal justice and the deference the sentencing judge ought to give it. She quoted R. v. Bezdan,supra, at para. 15: [15] ...

It is apparent that the administration of criminal justice requires cooperation between counsel and that the court should not betoo quick to look behind a plea-bargain struck between competent counsel unless there is good reason to do so.

In those instances inwhich the sentencing judge is not prepared to give effect to the proposal, I also agree that it would be appropriate for that judge to givehis or her reasons for departing from the "bargain." I would not go so far as to say that a sentencing judge can only depart from thesentence suggested in the joint submission if he or she is satisfied that the proposal is contrary to the public interest, or that the sentenceproposed would bring the administration of justice into disrepute.

It is not clear to me that these two circumstances cover all situations inwhich a sentencing judge might conclude that the sentence proposed was "unfit". [55] Justice Ryan also commented at para. 47 on the unsettled state of appellate opinion: [47] As I read the jurisprudence from this Court, the divergence of opinion as to the correct test has been noted, but never resolved. InR. v.

Joseph, 2003 BCCA 369, 183 B.C.A.C. 155, Esson J.A. remarked: [5] The sentencing judge correctly stated the test for rejection of a joint submission in para. 69: [69] A trial judge must give serious consideration to such a joint submission, and such should only be rejected if he or she is of theview that the proposed sentence is unreasonable or contrary to the public interest such that it would bring the administration of justiceinto disrepute. See R. v. Rubenstein, [1987] O.J. No. 1118, and R. v. Grimsson, [citations omitted]. [6] Mr.

Smart, for the Crown, makes the point in his written submission that there may be a more relaxed test which has had theapproval of this Court in some instances. He refers to four cases: R. v. Bezdan; R. v. T.M.N.; R. v. Grimsson; R. v. Broekaert, 2003MBCA 10 , [2003] M.J. No. 6, [citations omitted]. [7] In R. v. Grimsson, the language that was used at page 16 was: [65] It is clear from the cases that the court is not bound by a plea bargain, or the joint submissions of counsel, although the latterought to be given appropriate weight. The court has an overriding discretion to exercise.

It has a duty to impose a fit sentence. [8] I mention that only for the sake of completeness. The test applied by [the sentencing judge] in this case was the more onerousone and so there is no reason to say anything more about that matter. [48] The sentencing judge in the case before us also applied the more onerous test. [56] In some instances concerns about which approach is the correct one become moot on an appeal. In Dulay, supra, for example,Justice Blok stated at para. 38:

[38] I consider it unnecessary, if not presumptuous, for me to attempt to resolve this difference in this appellate jurisprudence. Sufficeit to say that even on the stricter test set out in Dorsey, supra, the sentencing judge's reasons can be read as demonstrating his conclusionthat the recommended sentence was contrary to the public interest to the point of bringing the administration of justice into disrepute,insofar as it failed to adequately address the protection of the public. This meets the test set out in Dorsey. [57] In R. v.

Wickstrom, 2011 BCSC 745 [Wickstrom] Justice Bernard considered an appeal where the sentencing judge imposedonerous terms for probation. These were not part of the sentence agreement. The parties had no chance to address before the sentencewas imposed. At paras. 20 and 22, Justice Bernard noted similarities between the procedural principles for joint sentencing submissionsin the Province of Alberta, as expressed in R. v. MacDonald, 2004 ABCA 295, and the Pretty test in British Columbia.

The notabledifference between them is the mandatory language used in Alberta and the permissive language in British Columbia. [58] At para. 3 of Macdonald, supra, the Court states Alberta's mandatory procedure: (which I will add in the transcript) [3] While a judge is entitled to depart from a joint submission, certain procedures must be followed. In R. v. Tkachuk (2001), 2001ABCA 243 , 293 A.R. 171 at para. 32, this court clarified that: 1.

A sentencing judge must give serious consideration to the joint sentence submission; 2 A joint sentence submission should be accepted unless is it considered unfit or unreasonable; 3. If the sentencing judge is inclined to depart from the joint sentence, the judge must so advise counsel and permit them to makefurther submissions in support of the joint submission to address the judge's concerns; and 4.

If the judge remains of the view that the joint submission is unfit or unreasonable, the judge may impose a different sentence, butmust give reasons. [59] In Wickstrom, Justice Bernard discussed the underlying rationale of plea agreements and the important role they play in thecriminal justice system. At para. 25, he points out plea agreements would be "seriously undermined if the court were generallydisinclined to show considerable deference for them at sentencing and upon appellate review".

At para. 26, he suggests the permissivelanguage in Pretty, was not intended to diminish the general efficacy of plea agreements but rather to give appellant judges some limitedflexibility. At para. 26 he states: [26] ... Mr. Justice Low's words suggest that a reviewing court's approach to these matters will be different from other sentenceappeals, in the sense that the court will be guided, albeit not bound, by sentencing principles which show due regard for jointsubmissions arising from plea agreements. [60] Justice Bernard also noted that the Pretty principles were enlarged in R. v.

Penney, 2010 BCCA 307, where Madam JusticeSaunders stated at para. 8: [8] I would add to the comments of Mr. Justice Low that it is, as well, preferable, and I understand it is often a course taken, that thejudge, after hearing submissions and determining that he or she will not follow the joint submission, will indicate that result to counseland thereby permit an opportunity for both counsel to consider whether there should be a withdrawal of a guilty plea. [61] Crown counsel asked me to consider R. v. Grimsson, [1997] B.C.J. No. 2815 (C.A.) [Grimsson].

There, the Court of Appealconsidered the obligations of counsel and of the judge to inform the accused that the Court is not bound by the parties' plea agreement.At para. 69, Justice Macfarlane stated: [69] In my opinion, it is the duty of counsel for the defence to advise the client that the court is not bound to impose the sentenceupon which Crown and defence may agree. If the accused is without counsel, the prosecutor should ensure that the accused is soinformed.

To satisfy the court that the accused understands his position I think counsel should state to the court in the presence of theaccused that it is understood that the court, in its discretion, may depart from the joint submission and impose a different sentence thanthe one agreed upon. The accused should then clearly understand his true position.

I think it unnecessary for the sentencing judge tospeak to the matter if the accused is so informed. [62] The duties discussed by Justice Macfarlane somewhat relate to, but are distinct from, the expectation that a sentencing judgewill pay due deference to a plea agreement. The circumstances in that case related to the duty of counsel to advise the client that thecourt was not bound to impose the sentence upon which the defence and Crown agree. [63] Plea agreements are firmly established as an integral and important part of the criminal justice system, and as Justice Joyceremarked in R. v.

Young, 1008 BCSC 1574: [28] Whatever is the precise test in this province, it is clear that while a sentencing judge is not bound by a joint submission he or sheshould give it serious consideration and, if not prepared to accept it, should give reasons for declining to do so. [64] As mentioned, the appellant's counsel submitted the trial judge in this case erred in failing to give reasons for rejecting the jointsubmission of counsel.

But at least in this case, the judge’s failure to give reasons is secondary to her failure to give the parties notice sheintended to reject the plea agreement, to give them opportunity to make further submissions and opportunity for both counsel to considerwhether the accused should apply to withdraw his guilty plea. [65] A failure to give reasons makes it more difficult to see why the judge rejected the plea agreement and whether it had receiveddue deference.

The failure to give notice and opportunity to make further submissions deprives the parties of the opportunity to addressthe reasons for the rejection and to enhance the joint submission, if possible, and, where the circumstances warrant, an opportunity toapply to withdraw the plea which had been premised on the plea agreement.

[ 66 ] Crown counsel submits that the judge's failure to give specific reasons for her decision is excusable because first, on a fair reading of the transcript, the judge demonstrated her concern the proposed sentence would not satisfactorily address the objectives of specific deterrence or denunciation and promote respect for court orders. He submits this is clear from the judge's reasons for sentence, and the tenor of remarks the judge made during the sentencing hearing.

Therefore, Crown submitted, regardless of whether the question is one of the fitness of a sentence, or the more stringent formulation of the test for rejection of the plea agreement, the judge's view that the proposed sentence was inappropriate should be given deference. [ 67 ] The difficulty with Crown's formulation is it is not so straightforward a matter to give deference to a judge's view when it does not contain reasons for not deferring to the joint submission. [ 68 ] Crown counsel further submits, however, that a failure to defer and to say why not represents nothing more than a departure from the preferred practice, not an error in principle.

Crown submits Pretty, Grimsson, supra, and Fuller represent what he characterizes as the Court of Appeal's somewhat pragmatic approach. He emphasized what the Court said at para. 7 of Pretty : [7] We are not told that there was any other information that the defence could have put before the sentencing judge had he signalled dissatisfaction with the joint submission.

This was not a complicated matter and, although the sentence proceeding did not take much time, it seems that counsel made complete submissions and it is difficult to conceive what else might have been said to attempt to support the sentence proposed or to add to the record for a possible appeal. [ 69 ] Defence counsel submits these comments in Pretty are apt in the appeal case at bar because: 1. Crown counsel told the Court why she was not seeking a jail sentence. These included the fact there were positives in the appellant's life and that Dr.

Murray, the Victim Services counsellor and the probation officer were of the view there would be no benefit for the appellant to go back to jail. 2. The judge heard submissions regarding the appellant's cognitive issues. She plainly rejected these, he submitted, as a factor that would reduce the appellant's culpability for the offence. 3. She had the benefit of the risk assessment. 4. The circumstances of the offence were straightforward. 5. The proceedings were not so brief that the chance to address serious concerns was foreclosed. 6.

When the sentencing hearing resumed, the judge invited counsel to make further submissions if they wished to do so. 7. This is not a case where the judge gave no indication whatsoever she had difficulty with the joint submission proposed. The judge's comments about the appellant's disregard for court orders and to her allusions to previous concerns for sentencing him to jail for the previous breach indicated her concerns about the fitness of a non-custodial sentence. 8. Wickstrom , is distinguishable because neither party raised the prospect of a further probationary term.

Here, Crown counsel's statement during submissions that a jail sentence was hypothetically appropriate put the prospect of a jail term in play. [ 70 ] In my respectful view, Crown counsel's submissions gloss over the significance of the Court of Appeal's severally stated procedural preference that sentencing judges give parties advance notice if they intend to depart appreciably from the joint submission. The cases do not denote what circumstances would mark a departure from the preferred sentence of a kind, and so become an error of principle.

In some cases, failure to give reasons becomes moot on appeal because the reasons are gleaned readily from the transcript and they would satisfy either test as Justice Blok noted. In other cases, where the parties have not received an opportunity to make further submissions, the record negates the possibility counsel could add anything useful beyond what has already been said.

In other cases, the trial judge's deviation from the proposed sentence will not represent a sufficient departure from the joint submission so as to allow one to say the judge had rejected it. [ 71 ] One could logically say that when a judge advises counsel they intend to depart from the joint submission, and why, and then gives them an opportunity to make further submissions, these are simply manifestations of their having shown due deference, which appears to be at the heart of that sentencing principle, as discussed by Justice Bernard.

And, if the reasons, as given, or as gleaned from the transcript, or as inferable from the nature of the sentence, show that the judge failed to address sentencing principles fittingly represented in the joint submission; or if they emphasize one principle so much that the parties' reasons for the joint submission find no voice at all in the sentence proposed, one could then conclude, at least, that they had failed to show due deference to the joint submissions. [ 72 ] Unless the accused is acquitted, the sentence becomes the final stage of the trial.

The need and expectation of trial fairness extends to the sentencing hearing. Then the sentencing judge is expected to give the parties fair warning of their intention to reject the joint submission, and time for them to address the judge's reasons for it. [ 73 ] Prejudice that could affect either Crown or defence also comes into play.

In short, procedural fairness consists with the sentencing principle of giving joint submissions due deference, with all that entails. [ 74 ] Turning now to the specific submissions the Crown made and which I just summarized a few moments ago. [ 75 ] I agree with the Crown that the judge's concerns about the appellant's history of non-compliance emerged from some remarks she made during counsel's submissions. But considering their context, I do not agree the remarks would necessarily alert counsel to the sentence the judge ultimately imposed.

Counsel could have addressed the judge's apparent concerns about compliance, for example, through a conditional sentence that contained a curfew outside work hours, combined with electronic monitoring.

[ 76 ] I also find unconvincing the suggestion that Crown's acknowledgement, during submissions, that the circumstances theoretically warranted a jail term, had put the prospect of a jail term well into play. Crown counsel, upon consideration of all the circumstances, had already decided against the fitness of that recommendation.

And even if counsel should have become concerned about where the judge's comments were taking her, concerns about court etiquette may inhibit questioning of the judge's intentions at that stage. [ 77 ] Crown counsel's submission that the judge gave defence counsel opportunity to make submissions before she imposed sentence misses the point. Defence counsel did not know the judge was about to reject the joint submission. At that point, there was no call upon him to augment the submissions.

The point of further submissions in this instance would be to allow counsel opportunity to address the judge's reasons for rejecting the joint submission, and if deemed advisable, to call additional evidence, or seek opportunity to apply to withdraw the plea. Crown counsel, as a party to the plea agreement, might also want to make further submissions and perhaps concede the Court should allow the accused to withdraw the guilty plea. [ 78 ] I reject Crown counsel's submission that the trial judge "plainly rejected the appellant's theory of diminished culpability and its significance in sentencing".

The result may suggest this, but the judge's reasons do not address this important aspect of the appellant's individual circumstances. [ 79 ] Defence counsel put the issue of Mr. Earnshaw's brain injury before the Court in an unconventional way, but without objections. Further, the judge mentioned the several successive brain injuries the appellant had suffered. But the suggestion that counsel could add nothing further useful if the trial judge gave counsel opportunity to make further submissions is not sustainable.

No evidence contradicted the serious nature of the appellant's injuries and their effects on his thinking processes and behaviour. With opportunity, counsel could have obtained current reports to illuminate in greater depth the effects of the appellant's brain injuries on the issues of intentionality and moral blameworthiness.

The medical report mentioned in the risk assessment was seven years old, and it did not confront the question of diminished culpability. [ 80 ] I mention these examples only by way of illustration of the point that, with opportunity, there was more counsel could have usefully provided or said. Counsel could then have made a stronger case for a conditional sentence or a shorter custodial sentence. Crown could have proposed a custodial sentence of less than three months to address the judge's concerns.

Again, the point is, more might usefully have been said against the three-month sentence, in the circumstances. [ 81 ] As for the risk assessment Detective Murray prepared at the judge's request, it covered a lot of ground. It contains information, some extraneous, extending back over seven years. As mentioned, it included a 2005 letter from a psychiatrist who had been treating the appellant until he withdrew due to the appellant's unmanageability as a patient. He was not taking prescribed medications. Based on the circumstances then, the psychiatrist had supported incarceration.

Detective Murray properly noted the psychiatrists remarks were out of date and that circumstances had changed. [ 82 ] Detective Murray's risk assessment effectively addressed the question of whether a no-contact order should remain in place. He concludes that a continuation of the no-contact order, coupled with other terms for probation, would suffice to address Ms. D.'s security and to secure the appellant's compliance. Detective Murray mentions his extensive contacts with Ms. D. and the appellant over the years. He notes positive changes that had occurred in both Ms. D. and the appellant in the preceding year.

He recommends Mr. Earnshaw continue to be monitored by Probation Services for a continued lengthy period of time. He notes that Ms. D. had a support network around her that included people with a vested interest to ensure she maintains her current relationships with community partners. He also notes the partners had committed to continue to work with her. He further notes both the appellant and Ms. D. had showed significant indifference to court imposed orders on their behaviour. Finally, he recommended Mr. Earnshaw continue to be prohibited from having any contact with Ms. D.

At p. 17 of the risk assessment dated October 1, 2012, Detective Murray states: The team has witnessed great improvements in both parties in that the number of police reports that involve both parties has dropped from a high of nine in 2005 to one in 2012 so far. It is believe that this drop coincided with two key elements: (

a) Mr. Earnshaw has been on probation with a no contact order; and (b) [Ms. D.] has finally connected with community services. [ 83 ] At page 19 of the risk assessment, Detective Murray concludes: I do not recommend a custodial sentence for this offense. Although Dr. Ancill recommended a custodial sentence based on his 2005 assessment of Mr. Earnshaw, much has changed since then, especially with respect to the development of [Ms. D.’s] community connectedness and improved safety planning over the past two years. It seems apparent that Mr. Earnshaw does not and will not have the same control over [Ms.

D.] that he once had. I recommend that Mr. Earnshaw be placed on a lengthy term of probation with conditions that include: - Report and reside conditions; … - Meet regularly with his family physician and with a psychiatrist and take the medications prescribed to him; - Not to have any contact directly or indirectly with [Ms. D.]; … [Details relating to no-contact order are then set out.] [ 84 ] I will conclude my analysis on the question of whether the judge showed due deference to the sentence after I summarize the standard of review and then discuss the fitness of the sentence. Standard of Review

[85] The Court of Appeal recently considered the appropriate standard of review in R. v. Allen, 2012 BCCA 377. [86] At para 28, the Court refers to R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227 and R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500 [Shropshire], in which the Supreme Court of Canada confirms an appellate court may only intervene if itcan be said the sentence under review is “clearly unreasonable”. [87] As the Court of Appeal pointed out, this standard of review derives from s. 718.3 (1) of the Code, which states: 718.3

(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to beimposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits theoffence. [88] At para. 30, the court stated: [30] A sentence can only be considered to be clearly unreasonable or demonstrably unfit if the sentencing judge has erred in principleby employing an irrelevant factor, overlooking or overemphasizing a relevant factor, or imposing a sentence “in substantial and markeddeparture” from the range of sentences imposed for similar offences and similar offenders (Shropshire at para. 50; M. (C.A.) at paras. 90and 92). [31] In R. v.

Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 LeBel, J., for the Court, held that it is not open to an appellate court tointerfere with a sentence simply because the appellate court would have weighed the relevant factors differently. The question for theappellate court is whether the trial judge, in weighing the factors, has exercised his or her discretion unreasonably. At para. 46 ofNasogaluak, LeBel J. quotes from R. v. McKnight (1999), (ON CA), 135 C.C.C. (3d) 41 (Ont.

C.A.) at para. 35: [46] …To suggest that a trial judge commits an error in principle because in an appellate court’s opinion the trial judge gave toomuch weight to one relevant factor or not enough weight to another is to abandon deference altogether. The weighing of relevant factors,the balancing process, is what the exercise of discretion is all about. To maintain deference to the trial judge’s exercise of discretion, theweighing or balancing of relevant factors must be assessed against the reasonableness standard of review.

Only if by emphasizing onefactor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate courtinterfere with the sentence on the ground the trial judge erred in principle. [Emphasis added.] Fitness of the sentence [89] Turning now to the questions of the fitness of the sentence. [90] Of course, once could anticipate that a record that reveals a pattern of disregard for a term of a probation order would raisejudicial concern over an offender's attitude towards court orders and attract consideration of the need to impose a sentence thatdenounces and deters further breaches.

In the present case, it was certainly open to the judge to consider the circumstances of the offenceand whether a longer period in jail than previously ordered was necessary to achieve the sentencing objective of specific deterrence andrespect for the law. [91] A judge must consider alternatives to incarceration for all offenders which includes repeat offenders. Sentencing is a highlyindividualized process.

It requires a judge to consider not only the circumstances of the offence, but also the specific circumstances ofthe offender. [92] Further, in seeking to meet the objectives of sentencing set out in s. 718 of the Code, the judge must keep foremost in mind theneed to ensure that the sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender. Speaking tothe proportionality principle, the Supreme Court of Canada stated in R. v. C.A.M., (SCC), [1996] 1 S.C.R. 500 atpara. 40: [40] ...

It is a well-established tenet of our criminal law that the quantum of sentence imposed should be broadly commensurate withthe gravity of the offence committed and the moral blameworthiness of the offender. [93] In R. v. Martineau, (SCC), [1990] 2 S.C.R. 633 at 645, the court stated that those who cause intentional harmshould be punished more severely than those who cause harm unintentionally. [94] The transcript of the sentence hearing and the judge's reasons indicate the judge was most concerned about the pattern ofdisregard of court orders.

At para. 16 of her reasons, she stresses the fact that she had cautioned the appellant that "if you were to comeback on another breach [of his no-contact order] you could expect to spend close to the maximum time in jail". The judge then sets outthe pattern of breaches that occurred previously which had supplied her reasons for giving the warning.

She then goes on to say in thenext paragraph (para. 17, quoted earlier) which I will repeat here for ease if reference. [95] The step-up principle is a logical by-product of the belief that if an offender has been sentenced previously for a similar offence,the sentence next imposed should be stronger than the one previous to achieve the desired deterrent effect the first sentence failed toachieve. The principle does not oblige a judge to impose a greater sentence.

They need to consider all the circumstances of the offenceand of the offender not just the bare fact the offender has committed another offence. [96] In this case, the circumstances of the offence include the fact Ms. D. often phoned the home of the appellant's parents where helived wanting to see him. Of course, she is not the offender and she is not subject to any order, but considering the serious nature of theappellant's several brain injuries, this is a relevant circumstance.

[ 97 ] Another important circumstance of the offence is that, according to Detective Murray, who is well familiar with the pair, both have made great progress in the ten months following a previous order. Ms. D. confirmed she had observed positive changes in the appellant, albeit she could not be characterized as a reliable witness given her vulnerability and the number of times she has made allegations against the appellant only to resile from them.

Further, the appellant has been able to work for the first time in years, thanks to the disability insurer's willingness to allow him to seek employment. [ 98 ] Detective Murray pointed out Ms. D. will continue to draw support from a team committed to helping her, a factor that will reduce the risk of the appellant is re-offending. [ 99 ] The judge's reasons suggest her thinking that she needed to show that the Court will follow-up on previous warnings unduly swayed the sentence she imposed.

At para. 17 of her reasons, the judge said there had been "a continuation of all the same circumstances, the same statements made by you in this proceeding as there was in the last". She added that her sentence had everything to do with a person who has a history of crimes and violence against a particular partner or against partners and then a continued pattern of disobeying court order. [ 100 ] I do not see this as a fair portrayal of the circumstances of the offences and of the offender when the judge imposed sentence. Verbal abuse, not violent physical assaults had marked the appellant's contact with Ms. D.

There is no question the judges concerns with compliance were justified, but the evidence before her demonstrated the circumstances of the offence and the offender were not the same as before; and that both parties had made considerable progress. [ 101 ] Judges often reprimand and sometimes warn offenders of the likely consequences they will face if they re-offend. On occasion, they may move an offender to alter their course of conduct. In my respectful view, however, the fact of a warning does not render it necessary to follow through on the warning and act on it.

It would be wrong to emphasize a fact of the warning at the expense of the particular circumstances of the later offence and the offender's unique individual circumstances. [ 102 ] The progress the appellant and Ms.

D. have made since the previous sentence argues strongly against the need of a jail sentence three times longer than the one that preceded the improvement noted in the evidence. [ 103 ] Encouraging respect for the law is one of the main over-arching aims of sentencing, but a sentence that does not reflect the complex circumstances of the offence, the improvements in the appellant's conduct since the preceding sentence, and is three times longer than the preceding sentence is more likely to discourage that aim than to bring the administration of justice into disrepute. [ 104 ] The behavioural consequences of the appellant's history of serious brain injuries do not hand him a stay out of jail card.

Sometimes it becomes necessary to separate an offender from society, irrespective of their diminished culpability. But the cognitive and behavioural consequences of the appellant's serious brain injuries are an important facet of a complex set of circumstances that will not go away after the appellant is released from jail in three months. [ 105 ] Detective Murray's emphasis on the team in place to help Ms. D. become more self-reliant and to protect her from exploitation coupled, with probation terms to encourage compliance with the order deserved serious consideration and weight.

Detective Murray and other officers on his Domestic Violence Team know the offender and the factors at play. He evidently was satisfied a continuation of a probation order that included a no-contact order would give police the juristic support the circumstances required.

The Court does not always have the benefit of the accumulated knowledge, experience, and insights that Detective Murray was able to provide. [ 106 ] The primary concern, however, is the excessive weight the judge appeared to give the need for a step-up in circumstances where the evidence pointed towards positive changes since the preceding sentence was imposed. [ 107 ] In my respectful view, the sentencing judge exercised her discretion in an unreasonable way.

She misapplied the step-up principle by overly focussing on some past conduct and gave undue emphasis to her warning to the appellant at a previous sentencing.

She also failed to give enough weight to evidence that showed the appellant's conduct since the last sentence had improved and that the circumstances that gave rise to the prior offences had changed, diminishing the risk the appellant would re-offend. [ 108 ] I also conclude the judge failed to give sufficient weight to those circumstances that diminished the appellant's culpability and moral blameworthiness. [ 109 ] I further conclude she failed to give due deference to the joint submissions on sentence. She failed to tell the parties she intended to reject the plea agreement in circumstances that called for it.

She did not give the parties opportunity to make further submissions to present further evidence if desired and to make application to withdraw the appellant's guilty plea, if desired. [ 110 ] I conclude, as well, she failed to give due deference to those sentencing principles that animated the plea agreement and the parties' joint submission.

While the failure to give due deference does not inherently constitute an error in principle, in the circumstances of this case, I consider them a relevant factor that speak to the fitness of the sentence. [ 111 ] I conclude, therefore, that the sentence was not a fit one and should be re-cast in terms that more closely adhere to the parties' joint submissions. Nowhere is it shown that a non-custodial sentence is contrary to the public interest, or that it would bring the administration of justice into disrepute.

Optional Orders [ 112 ] Section 687(1) of the Criminal Code establishes the powers of a court of appeal against trial sentences. It provides that a Court of Appeal can vary the sentence within the limits the law prescribes, or dismiss the appeal. [ 113 ] Section 687(2) establishes that a judgment of a court of appeal varying a sentence has the same force and effect as an order of the trial court.

[ 114 ] As noted earlier, R. v. Shropshire , which is in the materials you have, establishes that courts of appeal should only vary sentences if convinced the sentence is clearly unreasonable. [ 115 ] With respect, I found the trial judge's sentence clearly unreasonable. I am using my jurisdiction to vary her original order to be replaced with the following. Conclusion [ 116 ] I impose a term of probation of 24 months as suggested by Crown. The terms of that order are as follows: 1. Mr. Earnshaw, you are to keep the peace and be of good behaviour. 2.

You are to be in compliance at all times with the conditions in your probation order. 3. You are to report within 24 hours to your probation officer. I do not expect you to remember all this, but I think it is important that you listen the best you can. And you are to report as directed to your probation officer as directed thereafter. 4. You are not to change your current residence without the written permission of your probation officer. 5.

For a period of 30 days, you are not to leave your residence between the hours of 8:00 p.m. in the evening and 7:00 a.m. in the morning with the exception of employment that requires you to work outside those hours and you must have the written permission from your probation officer to do so. 6. You shall present yourself to any police officer who appears at the door of any residence. 7. For a period of six months and under the direction of your probation officer, your cell phone shall be set up so that it blocks any cell phone calls from Ms. D. 8. If Ms.

D. attempts to contact you during the period of your probation, you shall inform your probation officer or Detective Murray as soon as possible. 9. You shall not consume alcohol or drugs prohibited by the Controlled Drugs and Substances Act , S.C. 1996, c 19 . 10. Under the direction of your probation officer, you shall seek the advice of your physician regarding medication options that will reduce the risk of your re-offending. You are not obligated to take medications recommended to you without your consent or that you do not consent to take. 11. You shall have no contact with Ms.

D., whether direct or indirect, in person or by way of telephone, internet, email, or by any means whatsoever. 12. You shall not come within 100 metres of any residence, workplace, counselling facility or worship place that you know to be frequented by Ms. D. 13. You may attend your usual church for purposes of counselling with your pastor at a pre-arranged time and you may attend worship at your usual church provided you do not come within 50 feet of Ms. D. or communicate with her, if she happens to be present. 14.

You shall participate in counselling at the direction of your probation officer, which shall, however, include relationship programs offered through Probation Services, and appropriate programs that may be offered by the Fraser Valley Brain Injury Association at the direction of your probation officer. 15. You shall provide such proof of participation in whatever form your probation officer directs. 16. You shall seek and maintain employment to the best of your ability. 17. You shall not have in your possession any type of weapon, to include all but not confined to a knife. 18.

I direct your probation officer to establish communication with a person on the Domestic Violence Team headed by Detective Murray and with one other person on Ms. D.'s support team. This shall be with the objective of exchanging information to confirm you are respecting this probation order and that no contact has occurred. 19. At the direction of your probation officer, for a period of six months you shall maintain a daily diary of your activities to the best of your ability and show this to your probation officer at their request. 20. At the conclusion of six months and with the consent of Ms.

D., and the support of probation officer, you shall enquire of Detective Murray if you may apply to vary the terms of your probation order, with a view to permitting personal contact with Ms. D. twice weekly in the presence of one or three third parties approved by your probation officer, or in a public place such as a place of worship or other similar gathering. 21. Also with a view to telephone contact you may seek liberty for an order for a variation to permit you to call Ms. D. twice a week at times pre-arranged by your probation officer. 22.

At the conclusion of 12 months you may apply for a further variation increasing the number of contacts during the week to three

times. Alternatively, with the approval of your probation officer and the concurrence of Detective Murray and the consent of Ms. D., you may obtain such approval from your probation officer who shall confirm the terms of contact in writing. The same order will apply at a period of 18 months into your probation, when further variations may be sought either through your probation officer or in the Court. [ 117 ] All right.

Yes? [ 118 ] THE APPELLANT: With the curfew, I'm on the road to go to work at 5:00 a.m. where I'm up at 4:00 and (indiscernible) at 5:00. [ 119 ] THE COURT: Okay, well I can – based on what you have told me there I will change the hours and add a provision that your probation officer may give you permission to extend the hours but you have to have that in writing so but for now since you are on the road I will change that to 5:00 a.m. then? [ 120 ] THE APPELLANT: Yeah, I'm on the road to go work at 5:00.

It takes me half an hour to get to work. [Some comments were then directed to the appellant.] [ 121 ] THE COURT: Okay, and if something comes up where you need to have a further extension, or variation, the person to speak to is your probation officer because you can't be coming to court every time something happens that requires some adjustment and I think I will add on this clause just to – you may seek the approval of your probation officer to vary the terms of your curfew or other matters related to employment which shall be put in writing and which you must carry on your person. [ 122 ] Any clarifications you would like or need or you think should be added?

All right. So Mr. Earnshaw, I do not want you to infer from this that -- and I do not think you will – that the judge's concerns were all wrong or that you are getting away with anything, because that is not the case. This is a fairly strict probation. But I am setting it up in a way that will allow you an opportunity, in future, to re-establish your relationship and have some contact. And hopefully, at the end of two years, you can have the chance of a normal relationship.

But when we have this sort of pattern that is before the Court we have to do everything we can to ensure your compliance with the court order. That is my objective. I do not want to see you get in trouble. That's why I put these safeguards in place. And I think it's far more in your best interests and in the public interest that you not go back to jail. See your probation officer as someone there to assist you. Keep in contact with him. If you are having difficulties --I have that term in the order that if Ms. D. is contacting you, you have to contact your probation officer or Detective Murray and say "Look Ms.

D. is contacting me, could you please contact her and tell her not to do that as I try to comply with this order. All right?” [ 123 ] THE APPELLANT: Yeah, Mr. Murray (indiscernible) I know he'll – he'll pull for me. [ 124 ] THE COURT: You are fortunate to have an officer such as Detective Murray involve. He seems to have a good sense of the circumstances. You should look upon him, and your probation officer, as somebody who is there to assist you. I will just mention this to counsel, if events show some changes necessary it should come before the Court.

The last thing the Court wants to see are terms that set someone up for failure. I am trying to avoid that. All right? Thank you both. “N. Brown J.”