R. v. Dafoe, 2023 BCSC 2252

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Dafoe, 2023 BCSC 2252 Date: 20231012 Docket: 56426-1; 56638-1 Registry: Vernon Docket: 34297-1 Registry: Vancouver Rex v. Dennis Rae Dafoe Before: The Honourable Mr. Justice Punnett On appeal from: Provincial Court of British Columbia, February 17, 2023 ( R. v. Dafoe , 2023 BCPC 48 ) Oral Reasons for Judgment at

Summary Conviction Appeal Counsel for the Crown (Respondent) appearing by videoconference: B. Bellrichard Counsel for the Accused (Appellant): N.C. Jacob Place and Date of Trial/Hearing: Vernon, B.C. September 1, 2023 Place and Date of Judgment: Vernon, B.C. October 12, 2023 [ 1 ] The accused appeals a sentence imposed after the sentencing judge rejected a joint submission on sentence. Background [ 2 ] On January 25, 2023, the appellant pled guilty to two charges of driving while prohibited contrary to s. 320.18(1) (

a) of the Criminal Code , R.S.C. 1985, c. C-46 , one file from Vernon with an offence date of April 24, 2022 (the “Vernon File”) and one file waived to Vernon from Vancouver, with an offence date of May 28, 2022 (the “Vancouver File”). [ 3 ] On the Vernon file, the appellant was stopped for speeding at 121 kilometres per hour in a 90 kilometres per hour zone on a highway near Falkland, British Columbia, outside of Vernon. The appellant was cooperative with the police.

At the time he was subject to a Canada-wide Criminal Code driving prohibition. [ 4 ] The Vancouver file arose when the appellant, after his licence plate was flagged as a prohibited driver, was stopped and he blew a "warn" reading on a subsequent ASD test. [ 5 ] A joint submission was presented to the sentencing judge on January 25, 2023, for 120 days' jail time on each file to be served concurrently, with a $1,000 fine on each and a concurrent three-year driving prohibition on each. [ 6 ] Counsel at that hearing advised the Court that the foundation for the joint submission was:

a) the certainty of a guilty plea and certainty of a sentence received;

b) the length of the sentence was twice as long as Mr. Dafoe’s last sentence for the same offence, albeit for one information, this time for two;

c) taking into consideration the sentencing principles that apply, including totality, the proposed sentence was reasonable and not unduly low. [ 7 ] The trial judge summarized Mr. Dafoe's criminal history: [16] The cause of my concern with the joint submission is Mr. Dafoe’s criminal history, especially that related to driving. He has a total of 60 previous convictions, between 1988 and 2021. He has 7 convictions for failing to abide by court orders, and 36 convictions relating to dishonesty. He has four convictions for driving after having consumed too much alcohol.

[17] He was convicted of operation of a motor vehicle while impaired or with excessive blood alcohol in 1988, 1995 and 2002.

In 2004 he was convicted of driving while impaired and causing bodily harm, for which he received a 12 month sentence in addition to serving 3 months of pre-trial custody, and a 5 year driving prohibition. [18] He has been convicted nine times for driving while disqualified: - In 1996, for which he was given a $400 fine; - In 2004, at the same time as his conviction for impaired operation of a motor vehicle causing bodily harm, he was sentenced for three separate offences of driving while disqualified.

For each, he received a sentence of three months incarceration and an additional three- year driving prohibition, all consecutive to each other and the other sentences imposed at the same time. The driving prohibitions would have started after his release from custody, likely March of 2006. At the time the legislation was not clear that driving prohibitions could be consecutive, although there is some authority that could be done[v].

In the result, his driving prohibition was for a minimum of 5 years and a maximum of 14 years; - In 2008, for which he was given a 90 day jail sentence in addition to 48 days he had spent in custody. The offence was indictable, and a driving prohibition discretionary; - In 2009, for which he was sentenced to 6 months incarceration and was prohibited from driving for 5 years. The offence was indictable. The driving prohibition period started in January 2010; - On July 21, 2014, for which he was sentenced to a 5 month jail sentence and a 10 year driving prohibition.

The Crown had proceeded indictably; - On July 31, 2014, for which he received a 6 month jail sentence and another 10 year driving prohibition. That sentence was consecutive to other sentences that he was serving (24 months on 6 fraud related charges, for which he was sentenced on July 30, 2014, and the 5 month sentence for driving while prohibited). Legislation specifically permitted the prohibition period to be consecutive. Accordingly, he had a 20 year driving prohibition. That prohibition would have started after his release from incarceration.

His total sentence meant he received a penitentiary sentence of at least 30 months. Assuming he was released after having served two-thirds of his sentence, the prohibitions would have started in the spring of 2016. The Crown had proceeded indictably; - On June 2, 2021 for an offence committed on December 1, 2020, for which he received a 60 day jail sentence and a 3 year driving prohibition. The Crown proceeded summarily. [19] Some nine months after he was released from jail after his last conviction, he again drove while disqualified under two prohibitions.

He did so again about one month later, also under two prohibitions. His current driving prohibitions will run until 2024 and 2034. These will be Mr. Dafoe’s tenth and eleventh convictions for driving while disqualified. [ 8 ] The trial judge raised with the Crown what the quid pro quo was for the joint submission. The Crown stated factors of certainty and efficiency.

As the trial judge was expressing a concern regarding the joint submission, defence counsel sought and was granted an adjournment to make further submissions as they were not available to continue what was now likely to be a longer hearing than originally anticipated. [ 9 ] The hearing continued on February 2, 2023, and at the hearing the trial judge expressed concerns that there had to be a quid pro quo for a proposed sentence to be a true joint submission, such as weaknesses in the Crown's case, in order to bring it under the Anthony- Cook regime: R. v. Anthony-Cook , 2016 SCC 43 .

The Crown submitted a quid pro quo was not required for a valid joint submission, relying on R. v. Nahanee , 2022 SCC 37 . The defence also relied on Nahanee in support of its submission that certainty and efficiency for all parties can serve as a quid pro quo in its own right. After further submissions, the trial judge reserved judgment to February 17, 2023. [ 10 ] The trial judge in his reasons continued: Process for Considering a Joint Submission [7] Most joint submissions do not require examination. That is one of their benefits.

But if a joint submission causes a judge concern, as this joint submission has, the process is important. Anthony-Cook sets out guidance for judges to follow to ensure that the review undertaken is fair. I must examine all the factors that relate to the joint submission. [8] I must take the joint submission as is, without alteration. As with any sentence hearing, I must know the circumstances of the offences and Mr. Dafoe. I note that the greater the benefits and concessions, the more likely it is that I should accept the joint submission, even if it seems far too lenient.

But “…if the joint submission resulted only from the accused’s realization that conviction was inevitable, the same sentence might cause the public to lose confidence in the criminal justice system.” [9] The justification of the joint submission in open court is itself a factor favouring acceptance of the submission, because the public will then know what led to it, hopefully enhancing the public’s confidence in the administration of justice. Since I had concerns about the proposed sentence, I asked for further submissions, and adjourned to give counsel time to prepare to do so.

I inquired into the factors that led to the joint submission, hearing from both defence counsel and the Crown. [10] The process also permits me to allow Mr. Dafoe to withdraw his guilty pleas, if, after conducting my review, I still have concerns about the proposed sentence, and the circumstances justify it.

If I find the joint submission meets the test for rejection and I do not allow the guilty pleas to be withdrawn, I must give cogent reasons for not following the joint submission. [ 11 ] He then turned to the issue before him: [21] With all those facts in mind, will 120 days jail, a $2,000 fine and 3-year driving prohibition satisfy the administration of justice

and be consistent with the public interest? Or is it so unhinged from the circumstances that its acceptance would lead reasonable and informed persons, aware of all the circumstances, to believe that the proper functioning of the justice system had broken down? [ 12 ] The trial judge noted he was not provided with comparative cases and, after reserving, that he had reviewed a number of cases: R. v. Hindmarch , 2010 BCSC 1257 ; R. v. Briet , 2018 BCSC 1576 , R. v. Cooper , 2019 BCCA 325 ; and R. v.

McAlpine, 2020 BCPC 183 . [ 13 ] He stated that given the offences, the most important sentencing principles were denunciation and deterrence, and as for rehabilitation, he concluded that, “[t]he rehabilitation required in this case is simply to have him respect laws and court orders”. He then stated: [32] Driving is a privilege. It is not a right. He has lost that right many times. These offences show he still does not care. The only means for rehabilitation is deterrence.

The sentence must be significant enough that he knows if he drives again while prohibited, even once, he will spend far longer in jail, perhaps returning to the penitentiary. General deterrence is also important. [33] That is also the only way he will hopefully become responsible. It is obvious to me that he has consistently chosen to be irresponsible. He had no right to drive. He did and drank alcohol. He did and drove well over the speed limit.

His criminal record overwhelmingly shows he does not care to conform to Canadian societal norms. [ 14 ] He then addressed the question of "[w]hat is a fit sentence for each offence, and in total?", noting that: [45] Bearing in mind the principles and factors I have considered, and to drive home the message to Mr. Dafoe that he cannot drive while he is prohibited and without a valid license, a significant sentence is required. Such a sentence is consistent with all the sentencing principles and would be consistent with sentences imposed in comparable cases.

The only evidence of real deterrence has come with a penitentiary sentence. [46] He was given a lower sentence in 2021, undoubtedly in recognition of the fact that he had not disobeyed the law for a number of years. He has lost any credit that might be given for that gap in offending.

It would not offend any sentence principle to increase his sentence from the last one he received in 2014, bearing in mind that the totality principle would have applied. [47] I am mindful that apart from the lack of utility of a fine, he will be in jail longer than he planned, and may well need the money he would have used to pay a fine for his expenses. I also consider that Mr. Dafoe would likely have been fined for speeding in Vernon, and will assume that as a relevant fact. [48] The circumstances of the Vancouver offence are aggravated.

He had been caught driving just over a month before, where he acknowledged he knew he was not permitted to do so. Being caught would serve as a reminder of the consequences. He decided to consume alcohol and drive anyway. The only mitigating factors are his guilty pleas, which he intended to do early on. But that was simply an acknowledgment of the inevitable. It deserves minimal credit. [49] On Information 56246-1 the sentence is eight months jail, and a driving prohibition pursuant to s. 320.24(4) and (5), for three years starting after the completion of his incarceration.

I have considered a conditional sentence, but in my view it would not be appropriate for this offence. [50] On Information 34297-1, I take into consideration the fact that Mr. Dafoe had planned on only being in jail for about two and a half months, two thirds of his anticipated sentence. Although I was not told that he would lose his employment or his condominium, he will be in custody considerably longer than he planned. The risk he might lose his employment or condominium are collateral consequences I must consider.

I also take into account his cancer diagnosis and what would be expected to be a significant period of recovery, which will make more time in a custodial facility much harder. [51] The sentence I would impose requires me to consider a conditional sentence. The only question is whether it can meet the requirement for denunciation and deterrence. Despite the offence being more aggravated, the additional factors I have outlined favour a conditional sentence.

I am satisfied that with sufficient punitive aspects, a conditional sentence will meet the sentencing objectives, with the time in custody on the Vernon offence providing a reminder to Mr. Dafoe of the consequences of failing to obey the conditional sentence. [52] On Information 34297-1, the sentence is 12 months consecutive to Information 56246-1 and any other sentence he may serve. It will be served by way of a conditional sentence with house arrest and other terms.

There will be a driving prohibition pursuant to s. 320.24(4) and (5), for three years starting after the completion of his incarceration. [ 15 ] The 120-day sentence in jail may have been at the lower end of the spectrum. Arguably it may have been unfit. The issue, however, in the context of a joint submission, is whether the proposed penalty was so far outside the range that it was “unhinged”.

Grounds for Appeal [ 16 ] The appellant submits the sentencing judge erred by applying a lesser test of either fitness or demonstratable unfitness, rather than the very high bar of the public interest test which, when applied to a joint submission, cannot be said to bring the administration of justice into disrepute.

Further, the appellant submits that the trial judge erred by failing to give appropriate consideration to the benefits flowing to the justice system by joint submissions both specifically and generally when considering whether the joint submission would bring the administration of justice into disrepute. [ 17 ] The Crown submits the trial judge properly followed the public interest test in departing from the joint submission, and further that the sentence imposed by the trial judge was not demonstrably unfit.

Law and Analysis [18] On a sentencing appeal, appellate intervention is justified if “there was error in principle, a failure to consider a relevant factor, orthe erroneous consideration of an aggravating or mitigating factor that had an impact on sentence; or where the sentence is demonstrablyunfit” (R. v. Joe, 2017 YKCA 13 at para. 40, cited in R. v. Agin, 2018 BCCA 133 at paras. 3, 5). [19] In Anthony-Cook, Justice Moldaver stated that a sentencing judge should generally accept a joint submission on sentence by theCrown and defence.

As noted at para. 50 of Anthony-Cook, most joint submissions are unexceptional and are to be accepted. That said, asentencing judge is not obligated to accept a joint sentence: [25] It is an accepted and entirely desirable practice for Crown and defence counsel to agree to a joint submission on sentence inexchange for a plea of guilty. Agreements of this nature are commonplace and vitally important to the well-being of our criminal justicesystem, as well as our justice system at large. Generally, such agreements are unexceptional and they are readily approved by trial judgeswithout any difficulty.

Occasionally, however, a joint submission may appear to be unduly lenient, or perhaps unduly harsh, and trialjudges are not obliged to go along with them (Criminal Code, R.S.C. 1985, c. C-46, s. 606(1.1)(b)(iii)). In such cases, trial judges need atest against which to measure the acceptability of the joint submission. The question is: What test? [20] However, to depart from a joint sentence requires the public interest test be met.

That is, the Court to not depart from the jointsubmission unless it would bring the administration of justice into disrepute or would otherwise be contrary to the public interest: [32] Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentencewould bring the administration of justice into disrepute or is otherwise contrary to the public interest. But, what does this thresholdmean?

Two decisions from the Newfoundland and Labrador Court of Appeal are helpful in this regard. [33] In Druken, at para. 29, the court held that a joint submission will bring the administration of justice into disrepute or be contraryto the public interest if, despite the public interest considerations that support imposing it, it is so “markedly out of line with theexpectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the properfunctioning of the criminal justice system”. And, as stated by the same court in R. v.

B.O.2, 2010 NLCA 19, at para. 56 , whenassessing a joint submission, trial judges should “avoid rendering a decision that causes an informed and reasonable public to loseconfidence in the institution of the courts”. [34] In my view, these powerful statements capture the essence of the public interest test developed by the Martin Committee. Theyemphasize that a joint submission should not be rejected lightly, a conclusion with which I agree.

Rejection denotes a submission sounhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, awareof all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the properfunctioning of the justice system had broken down. This is an undeniably high threshold — and for good reason, as I shall explain. [Emphasis added.] [21] The use of the word "unhinged" emphasizes the high threshold.

"Unhinged" is defined in the Concise Oxford English Dictionary,11th ed, (Oxford, U.K., Oxford University Press, 2004) at 1577 as: Make mentally unbalanced > throw into disorder. [22] Justice Moldaver provided guidance to trial judges regarding the procedure they should follow when they are troubled by a jointsubmission on sentence (Anthony-Cook at para. 49):

a) The joint submission is to be approached on an as-is basis. The Court is to assume any omitted provisions or orders were excludedintentionally (para. 51).

b) Trial judges should apply the public interest test when they are considering imposing either a harsher or a more lenient sentence. Indoing so, they should be mindful that a harsher sentence may raise concerns regarding fair trial rights and undermine confidence in thecertainty of plea negotiations, while a more lenient sentence may undermine public confidence in the administration of justice (para. 52).

c) If a joint submission is in issue, a trial judge will want to know of “any benefits obtained by the Crown or concessions made by theaccused. The greater the benefits obtained by the Crown, and the more concessions made by the accused, the more likely it is that a trialjudge should accept the joint submission, even though it may appear to be unduly lenient” (para. 53).

d) It is important that counsel put on the record justification for the joint submission in order to address justice being seen to be done(para. 57).

e) If after such inquiries the sentence is still unsatisfactory the Court should inform counsel of any outstanding concerns, invite furthersubmissions, and also raise the possibility of an accused withdrawing their guilty plea (paras. 58–59).

f) If concerns remain, the Court is obligated to provide clear and cogent reasons for why that is so when departing from a jointsubmission (para. 60). [23] In R. v. Nahanee, 2022 SCC 37, the Supreme Court of Canada addressed the benefits to the legal system arising from the use ofjoint submissions. Those benefits included certainty and efficiency at para. 30 and, as noted at para. 33, they are “significantly moreefficient for the justice system than contested sentencing hearings” and use “a fraction of the time and resources.” [24] As a result, deviation from a joint submission must include consideration of the system benefits of a joint submission. The

appellant submits the sentencing judge “erred in finding that the joint submission would bring the administration of justice into disrepute” and in failing to “adequately consider the societal benefits of joint submissions, specifically in this case and in general.” [ 25 ] The sentencing judge considered case law where other accused had received lengthy jail sentences for similar offences, noted that denunciation and deterrence were to be emphasized as the relevant sentencing principles, and concluded the joint submissions, which included jail and fines, would not deter the accused.

The judge concluded that there was virtually no benefit to the justice system and that the proposed sentences were incredibly lenient and would bring the administration of justice into disrepute. [ 26 ] The appellant emphasizes Moldaver J.’s comments in Anthony-Cook that joint submissions benefit all parties in the justice system, not just the accused, given that such encourage resolutions before trial with a high degree of certainty of sentence and certainty of conviction (paras. 35 – 40).

Further, that the public interest test for joint submissions takes the systemic benefits into account (para. 48). [ 27 ] In R. v. C.R.H. , 2021 BCCA 183 , the principles of Anthony-Cook were reviewed: [54] Surely, in determining on the Anthony-Cook test whether the joint submission is “markedly out of line with the expectations of reasonable persons” such that they would “view it as a breakdown in the proper functioning of the criminal justice system”, a judge must have in mind what a fit sentence in the circumstances might be. The point of Anthony-Cook is that one cannot simply compare the two results.

One must, in determining if the joint submission produces a “breakdown in the proper functioning of the criminal justice system”, consider the benefits and advantages of the joint submission process to that justice system. . . . [72] What emerges from these cases, and in particular Manca , is the view that where indeed the joint submission is so lenient, so out of step with proper expectations, it can reach the “unhinged” threshold, even after full consideration of the benefits a joint submission.

Clearly the comparison between a fit sentence and that contemplated by the joint submission in question figured in the court’s analysis in each of these cases. [73] In this discussion of the appropriateness of comparing the joint submission with an otherwise fit sentence, one must note that each of the tests considered in Anthony-Cook have at their core a consideration of an otherwise fit sentence. . . . [84] As I say, the consideration of the fitness of the proposed sentence must be coupled with a demonstrated consideration of the benefits of the joint submission process.

The question in this case is whether the judge really did undertake a full consideration of those benefits. [85] In my view, he did not. Anthony-Cook tells us that in rejecting a joint submission, the sentencing judge must provide “clear and cogent reasons” for doing so (at para. 60). In my respectful view, while the judge referred to the specific benefits accruing generally in the joint submission process, he did so as though those benefits were simply generic. The judge referred to the benefits as analyzed by Judge Doulis in I.C. He did not refer to them in the context of the case before him.

The judge simply said “there are many, many benefits to accepting joint submissions.” These are not cogent reasons for departing from the joint submission in this case. [Italic emphasis in original; bold and underline emphasis added.] [ 28 ] The Court of Appeal also noted that: [28] The judge then again referred to Judge Doulis’s decision in I.C. where she went through an application of the Anthony-Cook public interest test in a case of child sexual offences.

In particular, the judge noted the circumstances that led to the joint submission in that case: an early guilty plea and the saving of state resources in the result, a case “entirely dependent” on the evidence of the complainants, the strength of the Crown’s case and weaknesses therein, and an obviation of the need for victims to testify (at para. 16). [29] The judge said: [17] I pause here to note the similarity in our case to the case that Judge Doulis was dealing with. There are many, many benefits to accepting joint submissions. [ 29 ] In R. v.

Cheema , 2019 BCCA 268 , counsel in a joint submission agreed upon a sentence of five years for drug and firearms offences. The trial judge rejected the joint submission and imposed a sentence of eight years, finding that the proposed sentence did not send a strong deterrent and denunciatory message. The appeal was allowed, and the joint submission accepted. [ 30 ] The Court of Appeal stated: [20] As Justice Moldaver explained in Anthony-Cook , resolution discussions between Crown counsel and defence counsel are essential to the smooth and efficient functioning of the criminal justice system.

Joint submissions often result from these discussions and provide significant benefits to the Crown, the accused, the public at large and the administration of justice. The near-certainty associated with joint submissions allows the Crown to avoid taking flawed cases to trial and encourages accused persons to cooperate. In addition, a joint submission might result in a more lenient sentence for an accused than would otherwise be expected, minimize the stress and costs associated with trials and offer the accused an opportunity to make amends.

Most importantly, joint submissions provide a degree of certainty to all concerned that the benefits underlying the agreement will be respected, which has been described as an “instrumental feature” of the criminal justice system: R. v. Faulkner , 2018 ONCA 174 at para. 103 ; Anthony-Cook at paras. 36–40 ; R. v. Dunkers , 2018 BCCA 363 at paras. 38–40 . [21] In Dunkers , this Court recognized that such arrangements also benefit other justice system participants:

[40] [Joint submissions] also provide benefits to victims, witnesses, and the criminal justice system at large. For cases with horrific and difficult facts, victims and witnesses obtain some comfort in being spared the emotional and psychological cost of a trial. From an administrative perspective, guilty pleas save precious time, resources and expenses that can be directed towards other matters. [22] Given the foregoing, a judge presented with a joint submission must approach the sentencing task differently than on a conventional sentence hearing.

Under the conventional approach, the judge focuses on the circumstances of the offender and the offence, and the applicable sentencing principles. However, when assessing a joint submission, the judge must consider factors beyond the typical sentencing principles and should not “reverse engineer” a joint submission by determining the sentence that would have been imposed after a trial and comparing it to the jointly proposed sentence.

Rather, the analysis should begin with the basis for the joint submission, including the important benefits to the administration of justice, and ask whether there is something apart from the length of the sentence that engages the public interest or repute of the justice system : Anthony-Cook at paras. 32, 42, 44, 48 ; R. v. Belakziz , 2018 ABCA 370 at para. 18 . This approach enables a full appreciation of the basis and justification of the jointly proposed sentence: R. v.

McInnis , 2019 PECA 3 at para. 78 . [Emphasis added.] [ 31 ] The defence submits the joint submission was in fact within a reasonable range, and they referred the Court to R. v. Lequiere , 2006 BCSC 668 , R. v. Hilbach , 2019 BCPC 73 , R. v. Naziel , 2018 BCPC 146 and R. v. Cobangco , 2019 BCSC 471 . [ 32 ] In Lequiere , the accused had “four convictions for driving while prohibited for which he received sentences of a fine and 7, 14, and 21 days in jail” (para. 7). The matter before the Court was his fifth conviction for driving while prohibited in a six-year period.

He had previously spent 21 days in jail for his earlier charge and he was sentenced to six months' imprisonment, taking into account his record and that the charges apparently did not impress him, given within 16 months he drove again without a licence. [ 33 ] In Hilbach , the accused had four prior convictions for driving while prohibited in a two-year span.

He was sentenced on eight informations, including a sentence for driving while prohibited, to 22 days in jail with a three-year driving prohibition. [ 34 ] In Naziel , the accused was convicted after trial of failing to stop at the scene of an accident involving a person, assault causing bodily harm, driving while disqualified, and driving while prohibited, the last of which was conditionally stayed under the Kienapple principle, all of which occurred while the accused was impaired and intentionally used his vehicle to drive into someone who kicked his bumper, causing minor injuries.

The accused had a criminal record, including two impaired-related driving convictions, and three prior convictions for driving while prohibited, where he had previously received a 14-day jail sentence for the driving while prohibited count. He was sentenced to an 18-month conditional sentence on the assault causing bodily harm and a six-month concurrent conditional sentence on the driving while disqualified charge. [ 35 ] In Cobangco , the accused appealed a 30-day jail sentence for driving while prohibited, which was upheld by the

summary conviction appeal judge as within the acceptable range. The accused had three similar convictions for driving while prohibited in the six years prior to this incident, where he had received a fine for each of them totalling $500, $575, and $1,500 respectively, and the Crown in that case had initially sought a nine-day jail term. [ 36 ] These cases illustrate that such offences are in fact often treated at the lower end of the spectrum with a sentence of less than 120 days in jail being imposed, even where an offender has multiple similar convictions.

As a result, such a sentence is not so far outside the range as, in my view, to cause the public to lose faith in the justice system. [ 37 ] The sentencing judge correctly cited the test for joint submissions and the alleged error is that he failed to apply it correctly, as the joint submissions would not bring the administration of justice into disrepute.

As I have noted, the appellant submits the sentence of 120 days' jail time, a $1,000 fine, and a three-year driving prohibition concurrent cannot be said to be so unhinged as to be viewed as indicating the proper functioning of the justice system had broken down. [ 38 ] The appellant acknowledges the offences can attract high sentences, but notes driving while prohibited does not put the public at risk to the extent dangerous driving or impaired driving does. That is, driving while prohibited is not the type of offence the public would necessarily lose faith in the justice system over because a sentence is low.

The appellant also notes that the 2014 conviction resulted in six months in jail, which is dated, and that he received 60 days' jail time in 2021 for similar offending, which the appellant submits brings the 120-day sentence within a reasonable range. [ 39 ] Counsel for the appellant also notes Mr. Dafoe indicated he would enter pleas of guilty at an early opportunity and he pled guilty before any trial dates were set, such having a significant benefit to the efficiency of the justice system.

More generally, the appellant emphasizes the fact that joint submissions incentivize guilty pleas and the rejection of joint submissions can have a chilling effect on future joint submissions with a resulting negative effect on the judicial system. As well, the 54-year-old appellant is an employed individual, owns his own condo, and it appears he has some stability in his life, unlike many people who appear before the Court. [ 40 ] The difficulty with the sentencing judge's application of the appropriate principles is the emphasis or weight applied to the factors to be considered.

For example, in commenting on the values of a joint submission, the issues of certainty and saving of court resources and benefits to the justice system, the Court noted “[h]owever, certainty is not the goal of the sentencing process: imposing a proportionate sentence, having regard to the offence and the offender, is”.

This indicates to me an emphasis on an appropriate sentence but appears to reduce the weight given to the benefits to the justice system of the waiver and guilty pleas and joint submissions. [ 41 ] The sentencing judge did not give the appellant credit for waiving his Vancouver charges early and found that was of little benefit to the justice system, because the appellant “intended to plead guilty before receiving any promises from the Crown”.

Nor was he given credit for his early Vernon guilty plea, stating, “[t]here was virtually no benefit to the justice system by his agreement to plead guilty to both offences”. Defence and Crown agreed the Vancouver waiver was not strictly binding, given an accused can change their mind and remit the matter back to the original jurisdiction for trial. [ 42 ] The sentencing judge, when addressing the benefit to the system of a lack of a trial and contested sentencing, noted:

[41] To summarize, Mr. Dafoe has a lengthy criminal record for driving offences, especially driving while prohibited. There are no victims who are spared a trial. The witnesses are police officers, and part of their job is to testify. In Vernon, he was speeding, giving police ample grounds to pull him over. In Vancouver, he was driving a vehicle to which he was associated, also giving police grounds to pull him over to see if the driver was properly licensed. There are no defences based on the facts, and none were put forward.

The only quid pro quo is the certainty of sentence in exchange for not having two relatively brief trials with police officers as witnesses. The Vancouver charge was waived before there were any negotiations. In other words, he intended to plead guilty before receiving any promises from the Crown.

There was virtually no benefit to the justice system by his agreement to plead guilty to both offences. [ 43 ] The sentencing judge, in my view, did not take into account or give sufficient weight to the benefits of certainty of a joint submission to an accused and how such incentivizes guilty pleas and the benefits to the justice system more generally.

The assertion of no benefit to the justice system emphasized the relatively straightforward issues and trial, but failed to account for the broader benefits to the system such as saving the need and cost of a trial, the benefit of certainty, and the benefits to the administration of justice, improving the efficiency of the system, and making resources available for other matters as well as the benefits to the system of joint submissions in other matters in the future. [ 44 ] In C.R.H. , the Court noted that: [84] . . . the consideration of the fitness of the proposed sentence must be coupled with a demonstrated consideration of the benefits of the joint submission process. . . . [Emphasis in original.] I note, however, that unlike the case at bar, C.R.H. was not a case where the accused's conviction was inevitable. [ 45 ] The sentencing judge here noted the likelihood of conviction and the relatively straightforward trials required.

He concluded, “[t]here was virtually no benefit to the justice system by his agreement to plead guilty to both offences.” [ 46 ] In my view, the sentencing judge failed to address or give sufficient weight to those benefits to the criminal justice system and the system generally of joint submissions as well as the possible negative effect of this decision on future joint submissions.

As noted in Anthony-Cook at para. 25 , joint submissions are “vitally important to the well-being of our criminal justice system”. [ 47 ] The reasons of the sentencing judge give minimal weight to the rationale and benefits regarding joint submissions, and instead emphasize having “a proportionate sentence having regard to the offence and the offender”.

In addition, he found the proposed sentence “so unhinged … [that] a reasonable and informed person [would believe] that the proper functioning of the justice system had broken down.” [ 48 ] The comments of Justice Dickson in Cheema apply in this instance: [29] In my view, given the established range of sentences that applied, it cannot reasonably be argued that the joint submission was unhinged from the circumstances of the offences and the offender to an extent that would bring the administration of justice into disrepute. . . .

Conclusion [ 49 ] As indicated by the authorities above, the range for such offences for individuals with previous convictions include sentences less than those proposed in the joint submission. [ 50 ] I am satisfied the joint submission is not so unhinged from the circumstances of the offences or this offender to the extent that the administration of justice would fall into disrepute.

As a result, in my view, a well-informed member of the public with knowledge of the circumstances and the offences would not conclude the joint submission represented a breakdown of the effective operation of the justice system. [ 51 ] The appeal is granted and the sentence is varied to that of the joint submission, being 120 days' jail on each file to be served concurrently, with a $1,000 fine on each and a concurrent three-year driving prohibition on each. [ 52 ] It is my understanding Mr. Dafoe was released on bail pending the appeal after 74 days of incarceration.

While counsel referred to credit for time served, there is no enhanced credit for serving an actual sentence. Rather, in the provincial system, earned remission usually results in two-thirds of the sentence being served before a party is released. However, that calculation and that decision is a matter for corrections to address. I do not think it is appropriate for me to try and calculate it, because it does not fall within the enhanced credit for serving time prior to trial. [ 53 ] CNSL B. BELLRICHARD: Thank you, Justice. Again, this is Bellrichard, first initial B., speaking on the record. I agree with that.

However, I do note for the record that Mr. Dafoe has served 74 days on that sentence, and we will leave it to corrections to determine when his release would be. [ 54 ] THE COURT: Yes. It seems that decision is theirs to make, not mine. [ 55 ] CNSL B. BELLRICHARD: Thank you. [ 56 ] CNSL N. JACOB: Thank you, Justice. [ 57 ] THE COURT: All right, thank you counsel for your helpful submissions and your time this morning.

“The Honourable Mr. Justice Punnett”