R. v. Oxford, 2018 NLSC 200

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Oxford , 2018 NLSC 200 Date : October 15, 2018 Docket : 201704G0228 Her Majesty The Queen v. Michael Oxford Before: Justice Brian F. Furey On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, dated the 5th day of September, 2017. Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: March 20, 2018

Summary: The Appellant appealed against the sentence imposed by the Provincial Court judge asserting that the judge erred in law in refusing to accept a joint submission. The Crown argued that there was no basis on which to find there was a joint submission. Held : The Court dismissed the appeal finding there was no joint submission on sentencing. Appearances: Brenda Duffy Appearing on behalf of Her Majesty The

Queen Gary Kearney, Q.C. Appearing on behalf of Michael Oxford Authorities Cited: CASES CONSIDERED: R. v. Oxford , 2017 NLPC 13171 A00550; R. v. Druken , 2006 NLCA 67 ; R. v. Oxford , 2010 NLCA 45 ; R. v. Anthony-Cook , 2016 SCC 43 ; R. v. L.M. , 2008 SCC 31 ; and R. v. Frampton , 2018 NLCA 23 . STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46. REASONS FOR JUDGMENT Furey, J. : INTRODUCTION [ 1 ] In this matter, the Appellant has appealed the sentence imposed on September 5, 2017, by the Provincial Court judge in the Provincial Court of Newfoundland and Labrador sitting at Corner Brook.

That decision is set out in R. v. Oxford , 2017 NLPC 13171 A00550. background [ 2 ] On August 31, 2017, the Appellant pleaded guilty to the following offences: four counts of breach of undertaking – sections 145(3), (5) and (5.1); two counts of theft –

section 344(b); and one count of damage to property – section 430(4) of the Criminal Code , R.S.C. 1985, c. C-46. [ 3 ] The Crown summarized the evidence by describing the circumstances of the various offences. The facts as described were accepted as accurate by counsel for the Appellant. [ 4 ] During sentencing, the Crown recommended a global sentence for the seven offences – a period of imprisonment of 78 days and 12 months’ probation (with a number of specified conditions). The Crown indicated that it was not opposed to the sentence being served on an intermittent basis.

The Crown also agreed that the Appellant should be credited with a nine day reduction in the period of imprisonment. [ 5 ] The Appellant’s counsel asked the Court to emphasize in the probation order counselling to assist the Appellant with abstaining from the consumption of alcohol. He also requested if any jail sentence of 69 days was to be imposed that it be served intermittently. [ 6 ] The Provincial Court judge commented “On the face of it, 78 days is very lenient”.

He asked both counsel if there was anything else either of them wished to say. [ 7 ] Crown counsel acknowledged that the sentence was probably on the lower end of the scale that was appropriate for the Appellant but the Crown had taken into consideration the pleas at this stage. [ 8 ] Defence counsel expressed that probation would be beneficial for the Appellant in order to keep him in counselling. [ 9 ] The Provincial Court judge stated that he wanted to consider what an appropriate sentence was.

He set sentencing for September 5, 2017. [ 10 ] The Provincial Court judge outlined the sentence orally on September 5, 2017 and also filed written reasons in the decision referenced in paragraph 1 above. He determined that an appropriate overall sentence for the Appellant was a period of six months’ imprisonment. That was reduced by 15 days to reflect the period in pre-sentence custody. A victim fine surcharge of $100 was imposed on each count with 30 days to pay these.

The Provincial Court judge declined to impose a period of probation. grounds of appeal [ 11 ] The grounds of appeal set out in the Notice of Appeal are: 1. The learned trial judge erred in law in refusing to accept a joint submission.

2. The learned trial judge imposed a sentence that greatly exceeded the sentence recommendation of the Crown. 3. The sentence was unduly harsh having regard to all the circumstances, in particular: a. The circumstances of the Appellant. b. The Appellant’s guilty plea. 4. The learned trial judge imposed a sentence that, in consideration of all the circumstances, was unfit. 5. The learned trial judge failed to apply properly the principle of totality. 6.

Such other grounds that the Appellant may be permitted to address the Court upon the hearing of the appeal. issue [ 12 ] In his factum and at the hearing in this Court, counsel for the Appellant restricted his argument to whether the learned trial judge erred in law in refusing to accept a joint submission. submissions The Appellant [ 13 ] Counsel for the Appellant argued that there is no magic in the use of the words “joint submission”. He noted that there was no mention in the transcript of these words. He suggested that a joint submission can exist even without those words.

He acknowledged the easiest way to deal with the matter is to use the words “joint submission”. [ 14 ] Counsel stated that the circumstances meet the elements of a joint submission – guilty pleas entered as a result of negotiations, both parties making the same sentencing recommendation and a quid pro quo . He pointed out that the parties were involved in negotiations before the guilty pleas were entered. He noted that a number of other charges were withdrawn as part of the sentencing and that the Crown was aware the Appellant would be requesting an intermittent sentence.

He suggested both counsel made the same recommendation on sentencing by asking for an identical sentence. He argued there was a quid pro quo . There had to be some value to the Appellant in entering guilty pleas. He referred to the Crown counsel’s statement that she had taken into consideration the Appellant’s pleas at this stage when making a recommendation on sentencing.

Counsel continued that there was some benefit to the Crown because there could have been multiple separate prosecutions. [ 15 ] Counsel asserted that whether or not the learned trial judge acknowledged the submission as a joint submission, it was, particularly when one considers the circumstances, the pleas and the same recommendations.

He argued that the learned trial judge should have been alerted to it suggesting it would have been much easier if counsel had referred to a joint submission. [ 16 ] Counsel for the Appellant pointed out that when a court is presented with a joint submission, the sentencing judge may not reject it unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. He referred to two decisions of our Court of Appeal – R. v. Druken , 2006 NLCA 67 (see paragraphs 9 – 19) and R. v.

Oxford , 2010 NLCA 45 (see paragraphs 48 – 82). [ 17 ] Counsel also referred to the recent decision of the Supreme Court of Canada in R. v. Anthony-Cook , 2016 SCC 43 in which the Supreme Court of Canada endorsed the public interest test. [ 18 ] He continued that under Anthony-Cook , a sentencing judge who rejects a joint submission is required to provide clear and cogent reasons for departing from the joint submission. He suggested that the learned trial judge in this matter did not address this in his written reasons.

The difference between the parties’ submissions and the sentence actually imposed by the learned trial judge was a little over three months. Counsel argued that this was only tinkering with the sentence. It was not indicative that the learned trial judge regarded the joint submission (a term referenced by counsel) as contrary to the public interest. [ 19 ] Counsel concluded by stating the learned trial Judge erred in law by his rejection of the joint submission.

That occurred through the learned trial judge’s failure to provide clear and cogent reasons to explain how the joint submission was contrary to the public interest. [ 20 ] Counsel requested that the learned trial judge’s sentence be quashed and that the joint submission of 69 days in jail plus probation for 12 months be imposed on the Appellant. The Crown

[21] Counsel for the Crown submitted there is no basis to entertain the Appellant’s argument. There was not a joint submission onsentencing in this matter. Neither the Crown counsel nor the Appellant’s counsel at the sentencing hearing indicated to the learned trialjudge that the submission on sentence was a joint submission. [22] After the learned trial judge stated that he found the submission of 78 days’ imprisonment to be very lenient, both counselcommented further but neither of them stated there was a joint submission on sentence.

Counsel suggested that what occurred was theCrown counsel gave her position on sentencing and the Defence counsel agreed with it.

She noted that this is not a true joint submission. [23] Counsel reiterated after being asked by the learned trial judge if they had anything else to add on sentencing, neither counseladvised the Court of any quid pro quo that influenced their submission on sentence. [24] In reviewing the transcript, counsel noted that there was no indication that the learned trial judge understood the sentencesubmissions by counsel were a joint submission. [25] If both counsel intended the submission to be a joint submission, they should have made that clear to the learned trial judge.The words “joint submission” carry weight.

These words were never spoken. The counsel at the trial did not intend the submission to bea joint submission. The learned trial judge could not have found they intended their submissions to be a joint submission. [26] Counsel concluded by pointing out the standard of review this Court (sitting as an appeal court) should follow in reviewing atrial judge’s decision on sentence. She referred to R. v.

L.M., 2008 SCC 31 in which LeBel, J. of the Supreme Court of Canada stated thefollowing at paragraph 14: 14 In its past decisions, this Court has established that appellate courts must show great deference in reviewing decisions of trial judgeswhere appeals against sentence are concerned. An appellate court may not vary a sentence simply because it would have ordered adifferent one. The court must be “convinced it is not fit”, that is, “that . . . the sentence [is] clearly unreasonable” (R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46, quoted in R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, atpara. 15).

This Court also made the following comment in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 90: . . . absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appealshould only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. (See also R. v. W. (G.), (SCC), [1999] 3 S.C.R. 597, at para. 19; A. Manson, The Law of Sentencing (2001), at p. 359;and F.

Dadour, De la détermination de la peine: principes et applications (2007), at p. 298.) [27] Counsel argued that the learned trial judge did not make an error in principle, did not fail to consider a relevant factor and didnot overemphasize any appropriate factors when he imposed the sentence on the Appellant. As this was not a joint submission onsentence, this Court must show great deference to the trial judge’s decision on sentence. Counsel stated that based on the facts alleged inthe sentencing hearing and the Appellant’s criminal record, the sentence imposed on the Appellant was not demonstrably unfit.

Counselrequested that the appeal be dismissed. analysis [28] Sometime after the hearing of this appeal, counsel provided the Court with a copy of the decision of our Court of Appeal in R.v. Frampton, 2018 NLCA 23, filed on April 30, 2018, for consideration. [29] In that decision, Mr. Frampton appealed his sentence as imposed by the trial judge. The decision notes that Crown counselindicated that a global sentence of eight years would be appropriate. Counsel for Mr. Frampton endorsed the submission as a jointrecommendation. The trial judge advised counsel that he was reluctant to accept the recommendation.

After a review of the wholematter, the trial judge imposed a total of 11 years’ imprisonment. It was from that sentence Mr. Frampton appealed. [30] Welsh, J.A. noted in paragraph 20 that “Counsel agreed that the recommendation for an eight-year total sentence was not ajoint submission, but rather, a joint recommendation. . . . ” She then commented on the difference between a joint submission and a jointrecommendation in the following passage: 20 . . .

The difference between these two, as referenced in this case, is that a joint submission results from a resolution or agreementbetween the Crown and defence following discussions that led to a guilty plea; while, in the case of a joint recommendation, defencecounsel agrees that the sentence proposed by the Crown would be appropriate.

That is, in contrast to a joint recommendation in whichthe Crown and defence have come to a similar conclusion or agreement regarding an appropriate sentence, a joint submission generallyinvolves a quid pro quo in which, through discussions, the Crown and defence counsel agree to some accommodation. [31] I have considered the decision in the appeal before this Court. [32] The Appellant and the Crown take very different views on whether there was a joint submission in this matter. The Appellantasserts that there was, the trial judge ignored it, and he made an error in law by rejecting the joint submission.

The Crown takes theposition that there never was a joint submission. [33] Following the reading of the facts by Crown counsel, I note the learned trial judge asked counsel if the Crown wished to makeany recommendation on sentence. Crown counsel then outlined her recommendations, including a jail sentence of 69 days. Counsel forthe Appellant asked the learned trial judge “. . . that if any jail sentence in the range of 69 days is to be imposed, that it be servedintermittently

. . . and that he can go to his counselling . . . ”. [ 34 ] In my respectful view, words do matter in a legal proceeding. The use of particular words or the non-use of those words are important. [ 35 ] I reviewed the transcript of the sentencing hearing and the written decision of the learned trial judge referenced in paragraph 1 of these Reasons. The words “joint submission” were not used in the transcript nor in the written decision. Neither Crown counsel nor Defence counsel indicated that the submission on sentencing was a joint submission.

When the learned trial judge asked counsel if they had anything to add after commenting that the sentence was lenient, neither counsel in their supplementary submissions mentioned this was a joint submission. [ 36 ] In sentencing matters, I would suggest that if counsel are intending their submissions on sentencing to be a joint submission, then they should be up front with the court. They should be clear about that. They have a responsibility to do so. [ 37 ] I have considered the statement of Welsh, J.A. in R. v.

Frampton regarding the difference between a joint submission and a joint recommendation. [ 38 ] In the circumstances of this matter, I find that, based on my review of the transcript, the written decision, and the case law provided by counsel, this sentence submission was not a joint submission. Rather, it was a joint recommendation. Crown counsel outlined the Crown’s recommendations on sentencing. Defence counsel agreed that the sentence proposed by the Crown would be appropriate.

He also emphasized the need for the sentence to be served intermittently and the need for counselling for his client. [ 39 ] I adopt the law outlined in R. v. L.M. regarding the proper standard of review in an appeal against sentence. [ 40 ] Having carefully reviewed the written decision of the learned trial judge outlining the full circumstances of this matter, I find that the sentence imposed on the Appellant was not demonstrably unfit. conclusion [ 41 ] In the result, the appeal from sentence is dismissed. The sentencing submission was not a joint submission.

The sentence imposed by the learned trial judge was not demonstrably unfit. _____________________________ Brian F. Furey Justice