R. v. F.J.H., 2017 BCSC 181

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. F.J.H., 2017 BCSC 181 Date: 20170203 Docket: 23477-1 Registry: Salmon Arm Between: Regina Respondent And F.J.H. Appellant Before: The Honourable Mr. Justice Meiklem On appeal from: An order of the Provincial Court of British Columbia, dated July 5, 2016 ( R. v. F.J.H. , Salmon Arm Registry 23477-1 (unreported)) Reasons for Judgment Counsel for the Appellant: I.F. McTavish Counsel for the Respondent: M. Fras Place and Date of Hearing: Salmon Arm, B.C. November 23, 2016 Place and Date of Judgment: Salmon Arm, B.C.

February 3, 2017 [ 1 ] This is an appeal from a sentence imposed in Provincial Court following F.J.H.’s guilty plea to assault with the use of a weapon, namely a belt, in striking his 13-year-old daughter in the course of disciplining her. [ 2 ] The appellant submits that the learned provincial court judge erred in the course of suspending the passing of sentence and imposing probation for six months, despite the support of the Crown for a conditional discharge.

Specifically, the appellant argues that the sentencing judge erred by failing to include the appellant’s statements before him as factual submissions, by misconstruing the applicability of the conditional discharge provisions of the Criminal Code and by failing to accord appropriate weight to what was effectively a joint submission to impose a similar sentence as had recently been imposed on a comparable case in the same community. [ 3 ] The following portion of the pre-sentence report produced for the sentencing judge sets out the background to the assaultive disciplining as related by the appellant to the author: Regarding the present offence, the subject stated he made a poor choice. [F.J.H.] reported that his daughter was not doing her homework, was being rude to her mother, and was texting on her phone and not listening.

He said he took her phone away and began looking through her phone. He then found inappropriate photos of his daughter, sent to boys, and inappropriate photos from boys, sent to his daughter. He admitted to getting very upset. He said he went from zero to sixty and got out the belt. His intention was to hit her on the buttock but she turned to the side and he hit her leg. He reported he is not happy or proud of what he did but was at his wits end and frustrated. [ 4 ] F.J.H. struck his daughter with the belt once and left a small bruise.

She related the incident to a counsellor at school and it was reported to the police. The daughter told the police she did not think of it as an assault. [ 5 ] In his reasons for sentence, the sentencing judge made the following comments about the circumstances of the offence: [5] [C.] has been extremely difficult to work with, and [F.J.H.], although he himself came from a difficult background and one which included substantial domestic violence affected by his parents on him, did what he could to try to control a child he saw spinning out of control.

That all came to a head, her negative behaviour came to a head, when [F.J.H.] discovered that she had been sending sexually explicit images of herself to members in the community, and as one would anticipate of any father, he became extremely distressed at this behaviour and understandably became enraged that his daughter had gone so far off the rails as to commit behaviours which have a serious potential to be destructive for years to come.

In my view, it would be tantamount to an impulse of anger and frustration of a child running in front of traffic, because the child was being profoundly self-destructive in engaging in this “sexting” behaviour. [ 6 ] The comparable case, R. v. T.F. , 2016 BCPC 6 , referred to by counsel and by the judge, involved two accused parents who each struck their daughter several times as “spankings” because of her “sexting” behaviour; the father with a mini hockey stick and the

mother with a skipping rope. Those parents were described as model citizens without criminal records, who had taken counselling andthey were given conditional discharges. [7] It was common ground at the sentencing hearing that the circumstances of F.J.H.’s offence were less serious than thecircumstances in T.F., but his criminal record was a distinguishing factor. Of this, Crown counsel, Ms. Armstrong, said to the sentencingjudge: The accused has a criminal record which is outlined in the presentence report. It’s quite dated. The last conviction is now 15 years old,and there is not really a history of violence.

It seems to be more property related offences and one drug conviction. And it does seem,from the presentence report, that [F.J.H.] has taken significant steps to close that

chapter in his life and put it behind him. [8] Ms. Armstrong concluded her submissions at the sentencing hearing by saying: But I think that in the circumstances here -- and the very good things that Mr. Saitz had to say about [F.J.H.’s] actions, since this policeinvestigation was brought about, the Crown would not be opposed to a conditional discharge in his circumstances either. [9] Following Mr.

McTavish’s initial submission seeking consideration of a conditional discharge, the judge stated that heaccepted F.J.H.’s expression of remorse and his statement of responsibility and accepted that this was an “entirely out of characterepisode”. He acknowledged that the T.F. decision had to be considered on the parity principle articulated in s. 718, but said he wasstruggling with how to find a conditional discharge was in the accused’s interest, considering his past criminal record for even moreserious offences. In the following exchange, he sought further input from Mr.

McTavish: So I guess I am struggling a bit with the T.F. decision because that would suggest a conditional discharge would be appropriate on theprinciples articulated in s. 718; that sentences should be the same for similar offenses, but what I cannot understand is how, on 730, itmust be a precondition to a conditional discharge is that it’s in his -- in the accused’s interest, and I have not heard articulated before mewhy is it in his interest to get a conditional discharge? He has a record.

He has a really bad record, frankly, so if I understand Sanchez--and I’m sorry, I assume no one else has authorities on it,but if I understand Sanchez, it says that the person must be of good character. Well, Sanchez- Pino, from the Court of Appeal, the quotein the text says: The granting of some form of discharge must be “in the best interests of the accused”. I take this to mean that deterrence of the offenderhimself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order.

Nor is hisrehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or atleast of such character that the entry of a conviction against him may have significant repercussions. And I think, with respect, the utility of a -- the -- that statement -- that analysis would suggest that a conditional discharge is not availableto this gentleman. He has -- he has a lengthy criminal record for far, far more serious offences.

Now, having said that, I don’t want you to get worried that [he is] going to go to jail or anything like that, but I don’t see that adischarge is available. I don’t know why it’s -- why is it in his best interests? MR. MCTAVISH: It’s in his best interests, Your honour, primarily because he is dealing with the school. He is in parent committees. Heis dealing with a very serious problem there, and if a conviction is entered for violence against children, that may have some difficultiesin terms of the school setting and dealing with the parents and those sorts of issues.

I didn’t make that clear, but I think that is why it isnot only in his best interests, but it’s also in the public interest to enable him to continue on. [10] Following that exchange, Ms. Armstrong contributed to the discussion by pointing out that F.J.H. had pled guilty, whereas theaccused in T.F. had gone to trial rather than plead guilty and adding: And the statement that I think spoke to me, in this presentence report, was the fact that the accused here was glad that she spoke up aboutthis, and the extent that that’s a support to the daughter, that exceeds anything the court can do.

The father affirming the daughter,making the report, is a bit of a difference with the T.F. thing, as well. [11] In delivering his sentencing decision, the judge went directly to the subject of F.J.H.’s “very good character”, and said that hewas “profoundly impressed with the level of respect and affection that F.J.H. has shown to the daughter, who is the victim of thisoffence.” [12] The learned sentencing judge then reiterated the passage previously quoted from R. v.

Sanchez-Pino (1973), (ON CA), 11 C.C.C. (2d) 53 from the Ontario Court of Appeal, and stated the conclusion that he was not satisfied that it was in F.J.H.’sinterest to receive a conditional discharge: para. 22. The judge went on to consider the Court of Appeal decision in R. v. Relph, (BC CA), [1991] B.C.J. No. 298, where a conditional discharge was set aside because the trial judge had based it on a“distinct possibility” of a significant adverse consequence of a conviction.

The Court of Appeal held that the granting of a conditionaldischarge under the circumstances was not to be founded upon a possibility, but on an established fact. [13] In para. 28 of the transcript of his reasons, the judge expressed his conclusion on the question of adverse effect: [28] The accused at bar has a lengthy and serious criminal record for previous indictable offences.

The submission made at best presentsthe possibility of an adverse effect, and, as I understand the Relph decision, a possibility is not a sufficient body of evidence on which Iwould grant a conditional discharge, even if all of the circumstances were appropriate. [14] In para. 32, the judge stated his conclusion that a punitive probation order was the appropriate disposition and then asked theappellant to stand and asked if there was anything he wanted to say before sentence was passed. F.J.H.’s comments included thefollowing, appearing within the transcribed at para. 35:

It’s just that we fight--we are fighting with the school and stuff and the only thing I look at -- I know you have just ruled that it’s not conditional. It’s just with - with this on my record, being a volunteer fireman, first responder, advocate at school, not only for the kids, hockey teams, with this on my record, they will not allow me to continue with that because of violence against children. That’s why we asked for the conditional sentence (sic). [ 15 ] The judge then suspended passing of sentence and imposed a term of probation, but went on to state in para. 46: [46] I say this for the record.

The courts are called upon to decide these issues on the state of the record as presented to them at the conclusion of submissions. It would be a disservice to [F.J.H.] to stop him from doing the things that in his impassioned submissions to the court he would like to continue to do, and those include being a volunteer firefighter in his community, include working with the school for many years to come, and if there was evidence that supported such a proposition I would have granted a conditional discharge. It is not appropriate, in my view, now to simply take a flyer, so to speak, that it is appropriate.

The state of the record is inadequate to grant a discharge, and I have been called upon to render a decision based on that record. In the event that the matter is reviewed, (

a) my analysis might be found wanting, which I obviously fully accept, but (

b) if fresh evidence suggests that indeed there is more than a possibility, then my conclusion is erroneous, and that would be an entirely reasonable, fair, and just result. [ 16 ] Mr. McTavish interpreted these “for the record” comments to mean that the sentencing judge erroneously did not consider F.J.H.’s statements at the hearing to be part of the submission record. Mr.

McTavish nevertheless falls on his sword and faults himself for assuming, but not assuring, that there would be a formal joint submission and for not more fully preparing himself so that the adverse consequences of conviction mentioned by F.J.H. could have been included in counsel’s submission. [ 17 ] Counsel heard the sentencing reasons delivered orally, and may consequently have a clearer understanding of the sentencing judge’s meaning, but it is not clear at first reading what the judge considered to be the “conclusion of submissions”.

Although the judge did then refer to F.J.H.’s “impassioned submissions”, the structure of the judge’s comments does support appellant counsel’s

interpretation. [ 18 ] Also supportive of that

interpretation is the fact that the sentencing judge had arrived at his decision prior to asking F.J.H. if he wanted to say anything. In light of the requirement in s. 723(1) of the Criminal Code to give the offender an opportunity to make submissions on relevant facts before determining the sentence, this suggests that the sentencing judge probably considered submissions were concluded with defence counsel’s submissions. [ 19 ] Section 723(1) of the Criminal Code provides: 723

(1) Before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed. [ 20 ] Sections 726 and 726.1 of the Criminal Code are also relevant: 726 Before determining the sentence to be imposed, the court shall ask whether the offender, if present, has anything to say. 726.1 In determining the sentence, a court shall consider any relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or the offender. [ 21 ] In my view, these provisions make it abundantly clear that even when an offender is represented by counsel, the offender’s statements as to facts are to be considered as submissions relevant to the sentence to be imposed. [ 22 ] It is to be noted that s. 726 requires the court to ask whether the offender has anything to say before determining the sentence, not simply before formally pronouncing the sentence.

In this case, the sentencing judge clearly determined the sentence he would impose before he asked for and received the appellant’s personal submissions. He did not comply with s. 726 and, absent that compliance, he obviously did not consider the appellant’s direct submissions in determining the sentence. [ 23 ] The sentencing judge did not err, in my view, in characterizing Mr. McTavish’s elicited supplementary submission on the adverse consequences of conviction as indicating only the possibility of an adverse consequence. The submission was equivocal. (“He is in parent committees.

He is dealing with a very serious problem there, and if a conviction is entered for violence against children, that may have some difficulties in terms of the school setting and dealing with the parents and those sorts of issues”). [ 24 ] However, F.J.H.’s subsequent personal submission was an unequivocal statement of fact asserting an adverse consequence that the judge clearly weighed as capable of being determinative, but only if supported by evidence.

It is not clear to this court whether the sentencing judge suggested the need for evidence because the assertion came from the offender rather than being included in counsel’s submission.

This could hypothetically be the case where a court would naturally expect properly prepared counsel not to miss such a pertinent fact and would, therefore, be skeptical of the offender’s independent assertion. [ 25 ] A sentencing judge has the discretion to require evidence of any fact whether disputed at the hearing or not (see s. 723(3), which states: “The court may, on its own motion, after hearing argument from the prosecutor and the offender, require the production of evidence that would assist it in determining the appropriate sentence”).

However, it is unusual in practice to require evidentiary proof of factual information asserted, unless it is disputed. [ 26 ] The generally relaxed rules of evidence at sentencing hearings, and the wide discretion in the court in accepting information are codified in s. 724(1): 724

(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender. [ 27 ] The sentencing judge did not express any skepticism about F.J.H.’s assertion of adverse consequences, and it is unlikely that he

was skeptical of F.J.H.’s credibility, considering his favourable assessment of his character. It appears from his “for the record” comments that he simply did not consider those comments to be admissible as submissions in the same category as counsel’s submissions. [ 28 ] The important role of submissions on sentencing is described in the following excerpt from Sentencing (Clewley, McDermott & Young): 2.70 — Counsel Submissions

Section 726.1 requires the court to consider counsels’ representations or submissions. It is of particular importance to defence counsel. In the majority of cases, defence counsel’s submissions will contain many factual assertions. Unless challenged by the Crown counsel, they acquire the force of evidence. This is often an opportunity lost for the offender. While acknowledging the fast-paced reality of many sentencing hearings and the need for brevity on the part of all involved, submissions by the offender’s counsel can be the most critical aspect of the sentencing hearing.

The prosecution’s submissions are often a matter of rote bullet points addressing the circumstances of the offence, general deterrence and some brief reference to the offender’s background. Not so for the offender, who usually has the opportunity to speak last and to provide exclusive information that will mitigate the sentence. The difference between poorly prepared, inaccurate and incomplete submissions and a carefully packaged presentation which puts the most favourable yet acceptable context for the offender’s criminal behaviour cannot be overstated.

There is no doubt that there is a direct and significant connection between the persuasiveness of defence submissions and the type and severity of the sentence imposed. As well, the record that is established for appellate review (and related proceedings such as immigration or parole hearings) is set at this stage.

It is difficult to introduce fresh evidence on appeal and so the evidence filed in the first instance, and counsel’s submissions, have a profound effect beyond the sentence hearing. [ 29 ] Of course, s. 726.1 does not deal only with counsel’s representations or submissions, but rather with “representations or submissions made by or on behalf of the prosecutor or the offender ”.

Submissions by an offender also acquire the force of evidence unless challenged (emphasis added). [ 30 ] In my view, the sentencing judge erred in failing to identify the appellant’s assertions as clearly more than a possibility and as having the same evidentiary force as counsel’s submissions, absent a challenge by the Crown or an articulable reason for discounting their reliability.

Alternatively, if he had unstated reasons for doubting the reliability of F.J.H.’s unequivocal assertions about adverse consequences, he erred in proceeding to sentence beyond the scope of the effectively joint submission without stating that finding and requiring better evidence, as provided for in s. 723(3). [ 31 ] The respondent continued to express no opposition to a conditional discharge on this appeal, but argued that the sentence imposed was not unfit and that the learned sentencing judge made no reversible error of principle.

I have found reversible error and I find that absent error the sentencing judge would have granted a conditional discharge following six months’ probation. The appeal is allowed. I would set aside the suspended sentence and probation order and order a discharge on the same conditions as the punitive order, which I presume has been complied with. The parties are at liberty to seek any necessary further directions. “I.C. Meiklem J.” MEIKLEM J.