R. v. Maclean, 2019 NUCJ 2

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Maclean, 2019 NUCJ 02 Date: 20190211 Docket: 18-18-39 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Dustin Maclean ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): Doug Garson Counsel (Accused): Matthew Eaton-Kent Location Heard: Rankin Inlet, Nunavut Date Heard: November 5-8, 2018 Matters: Criminal Code, RSC 1985, c C-46, section 430(4) – damage to property. Decision rejecting joint sentencing submission.

REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

TABLE OF CONTENTS I. BACKGROUND 3 II. THE FACTS 4 A. The facts presented by the lawyers 4 B. Further facts requested by the Court 5 C. Further background provided by Defence Counsel in his written submissions 6 D. The Crown 7 III. THE LAW 7 IV. THE OBJECTIVES AND PRINCIPLES OF SENTENCING 9 V. THE OFFENDER 11 A. Criminal Record 11 B. Mitigating and Aggravating Factors 12 1. Mitigating factors 12 2. Aggravating factors 12 VI. ANALYSIS 13 A. To provide a full account of the relevant circumstances and facts 13 B. The circumstances leading to the joint submission 14 C.

Does the joint submission achieve the objectives and apply the principles of sentencing? 15 VII. OTHER CONSIDERATIONS 16 VIII. CONCLUSION 16 I. BACKGROUND [ 1 ] The offender, Dustin Maclean, was charged with damaging a snow machine with a baseball bat in Rankin Inlet. [1] The incident happened on March 2, 2018. Mr. Maclean pleaded not guilty on May 8, 2018, and the Court scheduled his trial first in September and then on November 8, 2018. On November 8th, he changed his plea from not guilty to guilty.

The Court then heard from the lawyers concerning the facts of the case and what appropriate sentence ought to be imposed. [ 2 ] The Prosecutor and Defence Counsel each recommended that the Court impose a suspended sentence and six months of probation. The lawyers called their recommendation a “joint submission”. A proper joint submission – as I shall discuss in a moment – effectively ties the judge’s hands and requires the judge to impose the recommended sentence. As we shall see in

section III, the standard to be met before a judge may reject a joint submission is very high. For the moment, I note: Rejection [of a joint submission] denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. [2]

[ 3 ] In this case, I had to quiz the lawyers to find out the details of the case. Once the lawyers had answered my queries, I was not satisfied that the joint submission properly applied the relevant sentencing principles to the circumstances of the case. I then gave the lawyers an opportunity to file written submissions justifying their joint submission. I adjourned completion of the sentencing hearing until February 11, 2019, to receive and consider the lawyers written submissions. [ 4 ] Defence Counsel filed written submissions with the Court. The Prosecutor elected not to do so. [ 5 ] Mr.

Maclean was in police custody in Winnipeg on February 11 and absent, therefore, for the continuation of this hearing. [ 6 ] These are my reasons for rejecting the lawyers’ joint submission. [ 7 ] I shall start with a description of the facts of the case. II. THE FACTS A. The facts presented by the lawyers [ 8 ] The Prosecutor provided the Court with a bare

summary of the facts of the case. Crown Counsel said that the local police received telephone calls at about 5 p.m. on March 2nd. These callers told the police that a man was damaging a snow machine with a baseball bat behind the Post Office. Police went to the scene of the crime. [ 9 ] The Prosecutor told the Court that Mr. Maclean went to the Post Office and that he carried with him a baseball bat in a packsack. Mr. Maclean went into the Post Office and “exchanged words” with an employee. The Prosecutor said Mr. Maclean complained the employee had stolen money from him, the Post Office employee. Mr.

Maclean then went outside and started “repeatedly” to hit the postal employee’s snow machine, before riding away. [ 10 ] The Prosecutor then said that “it’s a circumstantial case”. He continued: Nobody actually – we have witnesses but nobody actually saw Mr. Maclean or recognized Mr. Maclean doing this. But, that being said, we had a reasonable prospect of conviction because we had circumstantial evidence that tie [sic] him to this. [3] [ 11 ] Defence Counsel then confirmed that these were the relevant facts of the case. B. Further facts requested by the Court [ 12 ] I asked the Prosecutor if Mr.

Maclean had any prior relationship with the victim. The Prosecutor replied “as far as I am aware there is no real relationship between these individuals”. [4] Defence Counsel then stated the following: “My understanding is that their relationship is as an individual member of the public and as an employee of the postal service”. [5] Defence Counsel later elaborated this point in his written submissions:

… the Crown theory in this matter is that [ Mr. Maclean ] was upset that the [ victim ] stole $20,000 from him out of the mail. The disclosure posits that the snow machine was targeted as it was purchased with those stolen funds … The [victim] used his position of trust to wage a campaign of terror against [ Mr. Maclean ] including but not limited to stealing his father’s ashes. [6] [ 13 ] Neither lawyer provided any basis or evidence to substantiate these allegations, or to show why Mr. Maclean believed those allegations to be true. [ 14 ] Herein lies the root of the problem I have with the joint submission.

The lawyers failed to provide critical details relevant not only to what happened, but to the appropriate sentence. I am not saying that the lawyers intentionally intended to mislead the Court. However, in my view, their failure to provide critical information had the effect of misleading this Court. [ 15 ] This is not simply an academic point.

As Supreme Court Justice Moldaver reminded the Bar in Anthony-Cook : … counsel are bound professionally and ethically not to mislead the court. [7] Counsel must be scrupulous to weigh their submissions to ensure they avoid any appearance of complacency or institutional indifference. [ 16 ] I had the following exchange with Defence Counsel during the hearing: THE COURT: Well, there is a relevant factor that hasn’t been talked about and it is bothering me. What was Mr. Maclean doing in March, in Rankin Inlet, with a baseball bat in his pack? Mr.

EATON-KENT: So, it’s my understanding that there was intention to cause mischief to property, so that’s what the baseball bat was for. THE COURT: So, he premeditatedly went to the post office with the intention of doing damage to the victim’s snow machine? … (After further discussion with Defence Counsel and after he spoke with Mr. Maclean) MR. EATON-KENT: Yes, there was premeditation. [ 17 ] The record shows, I had to quiz the lawyers to find out the most important fact in the case. C.

Further background provided by Defence Counsel in his written submissions [ 18 ] I received more relevant background and factual information from Defence Counsel in his written submission. [ 19 ] In his written submissions, Defence Counsel advised that the Prosecutor would have called five witnesses to testify had the trial gone ahead. [8] On the trial date, two of these witnesses were not in the community. One of these two was a civilian who recorded the

incident on her cell phone. The other is a police officer who photographed a snow machine outside Mr. Maclean’s home that matched the description of the perpetrator’s machine. [ 20 ] Defence Counsel did not say whether any of these witnesses had been subpoenaed by the Crown. Nor did Defence Counsel say whether the Crown had considered having these two witnesses testify by video conference or by telephone. [9] D.

The Crown [ 21 ] As I indicated earlier, the Prosecutor failed to file any written explanation of the considerations which led the Crown to agree to the joint submission. [ 22 ] I now turn to the law which governs joint submissions by counsel. III. THE LAW [ 23 ] The term joint submission refers to an agreed upon sentence recommendation presented to the court by the parties.

The sheer volume of criminal cases in our courts makes plea negotiations between Crown and Defence an essential case resolution tool. [10] These negotiations often result in the entry of guilty pleas in exchange for a certain Crown sentence recommendation. In these cases, the defence “joins” with the Crown concerning the recommended sentence.

Over the years, the way courts dealt with negotiated guilty pleas and joint submissions varied somewhat across the country, but that situation has changed. [ 24 ] Today, the way judges receive and consider joint sentencing recommendations – joint submissions – is subject to the strict guidelines mandated by the Supreme Court of Canada in Anthony-Cook . This new approach recognizes that joint submissions are a commonplace and necessary part of a well-functioning justice system.

This in turn requires a high degree of certainty that the judge will accept the lawyers’ joint submission. [ 25 ] For these sound reasons, judges are expected to impose a joint recommendation unless “the proposed sentence would bring the administration of justice into disrepute, or would otherwise be contrary to the public interest”. [11] However, joint submissions are “not sacrosanct.

Trial judges may depart from them.” [12] I must decide whether the proposed sentence “… would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system …” [13] [ 26 ] The Anthony-Cook case gives guidance to judges who may be troubled by a joint submission. I must analyse the joint submission in this case against six considerations when I consider the governing “public interest test”. 1. I must consider the joint submission as it is. In other words, I must look at the sentencing options the lawyers presented to me.

If the lawyers failed to recommend a specific order or term, I “should assume it was considered and excluded from the joint submission.” [14] 2. The test applies whether I find the proposed sentence to be either too harsh or too lenient. 3. Sentencing cannot take place in a factual vacuum. Indeed, lawyers have a pro-active duty to present the court with the circumstances which led to and justify the joint submission. I will speak more about that when I analyse this joint submission starting at paragraph 49. [15] 4. The judge should give the lawyers a chance to make further submissions to address his concerns.

5. If the judge remains unsatisfied with the joint submission, he may consider permitting the offender to withdraw his guilty plea. 6. The judge is required to provide “clear and cogent reasons” if he decides not to accept the joint submission. [ 27 ] Before I discuss my concerns with the joint submission, I will outline the relevant objectives and principles of sentencing against which the joint submission must be considered. IV. THE OBJECTIVES AND PRINCIPLES OF SENTENCING [ 28 ] There are several important objectives a sentencing judge must try to achieve when imposing a sentence.

These objectives are found in the Criminal Code . [16] The sentence I impose must work to: • Protect the public; • Encourage respect for the law; • Be seen to be fair, to be just; • Condemn and denounce criminal conduct; • Deter Mr. Maclean and others from committing these crimes; • Rehabilitate Mr.

Maclean; • Encourage offenders to accept responsibility for their actions, to acknowledge and admit the harm they caused to their victims, and try to repair the harm where possible; and to • Separate offenders from society when necessary. [17] [ 29 ] In trying to meet these objectives, the judge is not left up to his or her own personal views. There are legal sentencing principles in place to guide a judge, and to help the judge decide on a fit and proper sentence. [ 30 ] In this case, there are five objectives and principles which stand out.

They are denunciation, deterrence, rehabilitation, proportionality, and parity. I will talk about each one in turn. [ 31 ] Denunciation means this Court must condemn illegal acts. This Court must send a strong message that vigilantism – taking the law into one’s own hands – will be punished. In my view, the joint submission fails to meet this standard. [ 32 ] Deterrence means to try to influence people to respect the law and to keep the public peace. Deterrence has two parts: general and specific.

In every day English, my intended audience today is made up of all Nunavummiut (general), as well as this offender (specific). [ 33 ] And the law is very clear: deterrence is an important objective when sentencing an offender for vigilantism. [18] In my view, the joint submission does not address this principle. [ 34 ] The Criminal Code also directs judges to consider ‘proportionality’. This principle is at the heart of the sentencing process. This term means a sentence should reflect the seriousness of the crime, and the offender’s responsibility for it.

The offender in this case committed a serious crime, and he bears a very high degree of moral blameworthiness. The crime was planned and premeditated. The sentence I impose today must reflect this reality. In my view, the joint submission does not properly address proportionality.

[ 35 ] I now turn to rehabilitation. Rehabilitation means helping the offender to change his ways for the better and to become a better person. Rehabilitation is always the result we seek in every case. There can be no real deterrence unless the offender mends his ways. [ 36 ] The offender’s crime was planned and premeditated. In my view, the joint submission does not promote rehabilitation. I will say more about Mr. Maclean’s rehabilitation starting at paragraph 58. [ 37 ] There is also another sentencing principle which is particularly relevant to this case.

This is the principle of restraint. [ 38 ] The Criminal Code directs sentencing judges to act with ‘restraint’. This means the court must impose the least harsh sentence which can achieve the goals involved in sentencing. Jail must only be imposed when there is no reasonable alternative. In Canada, jail is imposed only as a last resort. [ 39 ] Sentencing judges must also consider case-law. Case-law is made up of published reports that tell us what other judges have done in similar circumstances. This is extremely important. It is only fair that similar offenders should be treated similarly for similar crimes.

This is called the parity principle. This principle has played a significant role in my analysis. Defence Counsel referenced eleven cases in his written submissions. However, on a fair reading, none of these cases support the recommended sentence. Again, in my view, the joint submission does not account properly for parity. V. THE OFFENDER [ 40 ] According to the Information, Mr. Maclean is 28 years-old. He is a Qallunaaq. He moved to Rankin Inlet to be with his partner with whom he has one child. He is a pipe fitter making $45 per hour. He works 80 hours a week, three weeks on followed by two weeks off.

I was told he is in “high demand” for his skills. [19] [ 41 ] Defence Counsel said Mr. Maclean suffers both from mental health and addictions issues. He stated that Mr. Maclean has bipolar disorder and attention deficit hyperactivity disorder (ADHD). He also experiences anxiety. In fact, Mr. Maclean has been seeing two different counsellors regularly – one for addictions and one for mental health. Mr. Maclean was in active counselling at the time he committed this crime. [ 42 ] Defence Counsel then said Mr.

Maclean’s “addictions issues ended when he moved to the territory … He has maintained sobriety up here and the territory has been an excellent influence on him”. [20] Defence Counsel added that Mr. Maclean is remorseful. A. Criminal Record [ 43 ] Criminal records play an important role in sentencing. Common sense says a first-time offender who does a less serious crime will be treated more leniently than someone who commits one serious crime after another. Mr. Maclean has a lengthy criminal record. [ 44 ] Mr. Maclean is a repeat offender. He has 24 prior convictions on his criminal record which date back to 2006.

His criminal record contains one prior conviction for property damage, six crimes of violence, one for uttering threats, one for obstruction, three for theft or possession of stolen property, one break and enter, one unlawfully in a dwelling house, two for possession of illegal drugs and eight breaches of court orders. B. Mitigating and Aggravating Factors [ 45 ] The Criminal Code requires a sentencing judge to consider mitigating and aggravating factors unique to each case. 1. Mitigating factors

[ 46 ] Mitigating factors work to lessen the sentence. There are two mitigating factors in this case: 1. Mr. Maclean changed his plea to guilty on the scheduled trial date and he accepted responsibility. This Court always gives meaningful credit to someone who does this; and 2. Mr. Maclean expressed remorse for his actions. 2. Aggravating factors [ 47 ] Aggravating factors work to increase a sentence. There are several aggravating factors in this case. 1. The crime was planned and premeditated; and 2. Mr.

Maclean has a lengthy criminal record. [ 48 ] In my view, the proposed sentence does not give adequate weight to these aggravating factors. VI. ANALYSIS [ 49 ] More than two years after Anthony-Cook was released – and a year after R v Kippomee [21] which discussed joint submissions in Nunavut – many joint submissions continue to be problematic. Counsel have a threefold pro-active duty to the court when they present a joint submission: 1. To provide a “full account” of the circumstances and facts relevant to the charge(s); [22] 2.

To justify the joint submissions having regard to “the circumstances leading to the joint submission” including such factors as the availability of evidence and witnesses, concessions made by the offender and benefits to the Crown; [23] and 3. To demonstrate that the proposed sentence achieves the objectives and applies the principles of sentencing. [ 50 ] I shall examine each one of these requirements in turn. A. To provide a full account of the relevant circumstances and facts

[ 51 ] The lawyers in this case failed in their pro-active duty to provide a full accounting to the Court: Counsel should, of course, provide the court with a full account of the circumstances of the offender, the offence, and the joint submission without waiting for a specific request from the trial judge. As trial judges are obliged to depart only rarely from joint submissions, there is a “corollary obligation upon counsel” to ensure that they “amply justify their position on the facts of the case as presented in open court” (Martin Committee Report, at p. 329).

Sentencing – including sentencing based on a joint submission – cannot be done in the dark. The Crown and the defence must “provide the trial judge not only with the proposed sentence, but with a full description of the facts relevant to the offender and the offence”, in order to give the trial judge “a proper basis upon which to determine whether [the joint submission] should be accepted” (DeSousa, at para 15 ; see also Sinclair, at para 14. [24] [Emphasis added] [ 52 ] In this case, the Court is obliged to quiz lawyers to get the full accounting required by Anthony-Cook .

Neither lawyer in his oral submission told the Court what motivated the offender to attack the victim’s snow machine. The Crown theory was only communicated by Defence Counsel when provided a chance to flesh out his justification in writing. Indeed, the very heart of this case – that Mr. Maclean intended and planned to damage the victim’s snow machine in

an act of vigilantism – was withheld from the Court. B. The circumstances leading to the joint submission [ 53 ] The Prosecutor did not provide the Court with any insight in his oral submission why he agreed to the joint submission. And as I have already noted, the Prosecutor did not take the chance given him to fulfill the Crown’s obligations under Anthony-Cook by filing a written submission.

Based solely on what the Prosecutor told the Court, I cannot say the Crown obtained any benefit from the joint submission apart from the certainty of a conviction. [ 54 ] What little I do know about these circumstances were communicated by Defence Counsel mainly in his written submission. I referred to these circumstances in paragraph 16 to 18 above.

In court, Defence Counsel said: … there were witnesses that didn’t reside in the territory and it saved the Court and the Crown having to expend resources to have to bring them back up, in order to make their circumstantial case. [25] [ 55 ] Neither counsel acknowledged the availability and wide spread use of video and telephone testimony in Nunavut. The Court was not told whether the Crown had considered using the available technology.

Nor was the Court told whether the Crown had issued subpoenas for the witnesses or made travel arrangements for the out of jurisdiction witnesses. [ 56 ] I simply cannot conclude from what I was told that Mr. Maclean made any concessions apart from entering a late guilty plea. C. Does the joint submission achieve the objectives and apply the principles of sentencing? [ 57 ] In my view, the joint submission fails to give proper weight to the principles of denunciation, deterrence and proportionality. This case is about vigilantism committed by a repeat offender. This fact lies at the very heart of the case.

The lawyers’ failure to communicate this fact to the court undercuts the joint submission’s legitimacy.

[ 58 ] Six months’ probation in the circumstances of this case of admitted vigilantism “would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system”. [26] [ 59 ] Indeed, the failure by counsel in this case to provide a candid and complete factual record in open court undermined the integrity of the judicial process: A thorough justification of the joint submission also has an important public perception component.

Unless counsel put the considerations underlying the joint submission on the record, “though justice may be done, it may not have the appearance of being done; the public may suspect, rightly or wrongly, that an impropriety has occurred”. (C.C. Ruby, G.J. Chan and N.R. Hasan, Sentencing (8th ed. 2012) AT P. 73). [27] It may be that the proposed lenient sentence might have been justified had the lawyers provided a full accounting. In this context, to give one example, the unexplained absence of the Crown’s witnesses might have been significant.

However, I cannot say the lenient joint position is justifiable when much background information remains missing from the record [ 60 ] Furthermore, the joint submission, in amounting to no more than a slap-on-the-wrist, fails to hold Mr. Maclean properly to account. This fact undermines the lesson we intend to deliver to encourage him to mend his ways. Criminal actions without meaningful consequences undermine rehabilitation. [ 61 ] I must and I do reject the joint submission. VII. OTHER CONSIDERATIONS [ 62 ] I must now consider whether I ought to permit Mr.

Maclean to withdraw his guilty plea. [28] [ 63 ] The endorsements on the Information reveal that this case has twice been scheduled for trial – both in September and November 2018. The trial in September was adjourned at the Crown’s request. If I strike Mr. Maclean’s plea, then the third trial date will be in March 2019 – one year after the incident in question. I note this further delay would still be well within the time frame set by the Supreme Court of Canada for

summary conviction cases. [29] [ 64 ] More importantly, in my view, I believe it would be unfair in the circumstances to hold Mr. Maclean to his guilty plea. Mr. Maclean entered a guilty plea based on his lawyer’s negotiation of an extremely lenient sentence recommendation from the Prosecutor. Given Anthony-Cook , and the negotiated joint recommendation, Mr. Maclean reasonably expected the court to impose a six-month probationary term. [30] [ 65 ] Without the joint submission, I likely would have sentenced Mr. Maclean to jail. I cannot say that Mr.

Maclean would have pleaded guilty knowing he could well go to jail. To send Mr. Maclean to jail in these circumstances would in my mind be unfair. VIII. CONCLUSION

[ 66 ] Mr. Eaton-Kent, Mr. Maclean, has two options: he may either apply to withdraw his guilty plea, plead not guilty, and have a trial next month, or he may proceed to be sentenced. [ 67 ] As you do not have instructions, I adjourn Mr. Maclean’s case to the next sitting of Court in Rankin Inlet to be spoken to on March 12, 2019 at 1:30 Central Time. Dated at the City of Iqaluit this 11th day of February, 2019 ___________________ Justice P. Bychok Nunavut Court of Justice