R. v. Penner-Younker, 2012 BCPC 369

Citation: R. v. Penner-Younker Date: 20120810 2012 BCPC 0369 File No: 218366-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARLIE JANE PENNER-YOUNKER EXCERPTS FROM PROCEEDINGS RULING OF THE HONOURABLE JUDGE C. L. BAGNALL RE ACCEPTANCE OF PLEA Counsel for the Crown: J. Cryder (on behalf of T. Healey)

Counsel for the Defendant: A. Glouberman Place of Hearing: Vancouver, B.C. Date of Ruling: August 10, 2012 [1] THE COURT: Ms. Penner-Younker is charged with four separate offences on Information 218366-2-C, all as a result of eventswhich occurred on October the 30th, 2010. Count 1 alleges that she assaulted one Michelle Kwieton and in doing so caused her bodilyharm. The accused wishes to plead not guilty to the offence with which she is charged, but guilty to the lesser included offence ofassault. The Crown has consented to that plea being recorded. [2] The

section of the Criminal Code which allows this to occur is s. 606(4) and it reads as follows: Notwithstanding any other provision of this Act, where an accused or defendant pleads not guilty of the offence charged but guilty of anyother offence arising out of the same transaction, whether or not it is an included offence, the court may, with the consent of theprosecutor, accept that plea of guilty and, if. . .[such] plea is accepted, the court shall find the accused or defendant not guilty of theoffence charged and find him guilty of the offence in respect of which the plea of guilty was accepted and enter those findings in therecord of the court. [3] It will be apparent from the plain language of the

section that the court is not required to accept the plea that is offered, butretains the discretion to decline to accept that plea. It is the proper exercise of that discretion that is in issue here. [4] I have read and considered the case of R. v. Naraindeen (ON CA), 1990 O.J. No. 1645, a decision of theOntario Court of Appeal. I wish to refer in particular to paragraphs 22 and 23 and to paragraph 29. Paragraph 22 and 23: I accept that the prosecutor has primary responsibility for the enforcement of the criminal law. . . .

This responsibility carries with it thepower to decide whether or not to charge an accused and what charge or charges to lay. It includes the power to withdraw charges beforethe commencement of the trial. However, once the prosecutor has seen fit to bring the proceeding before a court, the accused haspleaded, and what is sought involves something more than merely not proceeding with a charge but, rather, the acquittal of the accusedon the charge that brought him or her before the court, the court has a legitimate role to play in the decision made.

The court is not gratuitously interfering with a prosecutorial decision. The prosecutor has ample and unfettered scope, short of asking thecourt to acquit on the charge before the court, to enforce the criminal law as he or she sees fit and to decide what charges will beprosecuted. [Emphasis added] [5] And then reading from paragraph 29: However, I think it should be said that trial judges in most cases do, and should, give great weight to the decision of counsel for theprosecution, as a representative of the public interest with heavy responsibilities, to accept a plea of guilty to an included or lesseroffence.

Although it is not necessary to decide the point, I would not wish to be taken as holding that a trial judge would be wrong inaccepting a plea to an included or lesser offence even though the facts might indicate that the full offence was committed, where a case ismade out that the result reflects a reasonable exercise of prosecutorial discretion having regard to the public interest in the effectiveadministration of justice. That is, I recognize that s. 606(4) confers a discretion and I would not necessarily restrict the scope of theprovision to that indicated by the purpose underlying its original enactment.

I note that in the present case the trial judge was given noreason at all why the proposed course of action was reasonable or justifiable. [6] It is important to note that in the case at bar, that the course of action endorsed by the prosecutor here would require that Iacquit Ms. Penner-Younker of the offence of assault causing bodily harm.

According to the Ontario Court of Appeal, this would not bewrong if . . .a case were made out that the result reflects a reasonable exercise of prosecutorial discretion having regard to the public interest in theeffective administration of justice. [7] I have also considered the case of R. v. Czinege 2007 BCSC 889 , 2007 B.C.J. No. 1366, a decision of Mr. JusticeBauman of the B.C. Supreme Court as he then was, in which the court considered the nature of the role to be played by the court incircumstances such as those in the case at bar. At paragraph 37 of that case, Mr.

Justice Bauman quoted the following comments of Mr.Justice Binnie in the case of R. v. Regan, 2002 SCC 12 , [2002] 1 S.C.R. 297, at paragraph 166 to 168: The trial judge in this case was careful not to understate or diminish the broad scope traditionally and properly afforded to prosecutorialdiscretion. Courts are very slow to second-guess the exercise of that discretion and do so only in narrow circumstances. In R. v.

Beare, (SCC), [1988] 2 S.C.R. 387 for example, the Court noted that a system which did not confer a broad discretion on lawenforcement and prosecutorial authorities would be unworkable per La Forest, J. at p. 410: Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkablycomplex and rigid. Police necessarily exercise discretion in deciding when to lay charges, to arrest and to conduct incidental searches, as

prosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way of indictment orsummary conviction, launch an appeal and so on. Still, the corollary to these extensive discretionary powers is that they must be exercised with objectivity and dispassion. This principlehas found its way into the Canadian Bar Association's Code of Professional Conduct (1988) see

chapter IX, "The Lawyer as Advocate",s. 9 (Duties of Prosecutor): The prosecutor exercises a public function involving much discretion and power and must act fairly and dispassionately. Because the exercise of prosecutorial discretion is, within broad limits, effectively non-reviewable by the courts, it is all the moreimperative that the discretion be exercised in a fair and objective way.

Where objectivity is shown to be lacking, corrective action may benecessary (as here) to protect what O'Connor referred to as "the integrity" of the criminal justice system. [8] Having reviewed these cases, I conclude that I ought to approach the decision as to whether to accept the accused's plea ofguilty to assault in a similar way to the approach courts take to joint submissions made by Crown counsel and defence counsel during asentencing proceeding. In each case, the submissions of counsel must be afforded significant weight. Madam Justice Prowse set out thequestion in the often quoted case of R. v.

Bezdan, 2001 BCCA 215 , [2001] B.C.J. No. 808, at paragraphs 14 and 15. She said: Counsel for Mr. Bezdan referred us to two decisions of the Ontario Court of Appeal which arguably suggest that greater deferenceshould be given to the joint submission of counsel than is reflected in the decisions from our Court [and cases are named here]. In thelatter case, Mr.

Justice Finlayson, speaking for the Court, stated: This court has repeatedly held that trial judges should not reject joint submissions unless the joint submission is contrary to the publicinterest and the sentence would bring the administration of justice into disrepute. . . This is a high threshold and is intended to fosterconfidence in an accused, who has given up his right to a trial, that the joint submission he obtained in return for a plea of guilty will berespected by the sentencing judge.

The Crown and the defence bar have cooperated in fostering an atmosphere where the parties are encouraged to discuss the issues in acriminal trial with a view to shortening the trial process. This includes bringing issues to a final resolution through plea-bargaining. Thislaudable initiative cannot succeed unless the accused has some assurance that the trial judge will in most instances honour agreementsentered into by the Crown.

While we cannot over emphasize that these agreements are not to fetter the independent evaluation of thesentences proposed, there is no interference with the judicial independence of the sentencing judge in requiring him or her to explain inwhat way a particular joint submission is contrary to the public interest and would bring the administration of justice into disrepute. I am in general agreement with the sentiments expressed in the second paragraph of the passage quoted.

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

In those instances in which the sentencing judge is notprepared to give effect to the proposal, I also agree that it would be appropriate for that judge to give his or her reasons for departingfrom the "bargain." I would not go so far as to say that a sentencing judge can only depart from the sentence suggested in the jointsubmission if he or she is satisfied that the proposal is contrary to the public interest, or that the sentence proposed would bring theadministration of justice into disrepute.

It is not clear to me that these two circumstances cover all situations in which a sentencing judgemight conclude that the sentence proposed was "unfit". [9] The focus of the court in approaching a joint submission must be on the fitness of the sentence proposed.

Applying thisapproach and, in effect, combining it with the case law in respect of the issue that concerns me in the context of the case at bar, this courtmight usefully ask whether the offered and consented to plea is "unfit" and whether it is therefore indicative of an unreasonable exerciseof discretion by the Crown. [10] It is necessary for me to recite some of the events that occurred as this Information has made its way through the court processin order to provide some context for my conclusion. The events which gave rise to charges against Ms.

Penner-Younker and the threeseparate counts against a co-accused, one Sherry Agla, occurred on October 30, 2010. The Information was sworn on November 23,2010. Some time in mid-2011 the trial was scheduled for May 7th, 8th, and 9th, 2012, two and a half or three days of court time.

Various pre-trial conferences were scheduled and held, including on August 2, 2011, September 19, 2011, and October 14, 2011. [11] These hearings generally have, and had in this case, as their sole purpose, judicial oversight of the progress of the case as itmoves through the system in order to ensure that the court time set aside is actually needed for this case. On March 12, 2012, the partiesappeared in court and confirmed the trial dates. [12] On the first day scheduled for trial, May 7, 2012, the parties again appeared before me. Ms.

Agla, the co-accused, entered aplea of guilty to one of the counts that she faced. [13] With respect to Ms. Penner-Younker, the Crown sought to amend Count 1 on the Information to add the alleged victim in Count4, which was a charge of assault of one Lauren Smirfitt. Ms. Penner-Younker, through counsel, indicated that she wished to plead notguilty to the offence of assault causing bodily harm on Michelle Kwieton, but guilty to the offence of assaulting Michelle Kwieton and

assaulting Lauren Smirfitt, both on the amended Count 1 on the Information. [ 14 ] I said at the time that I would decide whether the proposed amendment and the plea were appropriate once I had heard the circumstances. Counsel asked that I order that Pre-Sentence Reports be prepared for each accused.

I did so, and sentencing was ultimately adjourned until July 16, 2012. [ 15 ] When the matter reconvened on that day, it was almost immediately apparent that counsel had not understood that the proposed amendment had not yet been made and that the proposed plea had not yet been accepted. [ 16 ] On behalf of the Crown, Mr. Healey reviewed the circumstances which gave rise to the charges. He told me that the complainants, Ms. Kwieton and Ms. Smirfitt, were at a night club at about 1:30 a.m. on the day in question. Ms.

Smirfitt was going to be driving her friends home and had not consumed any alcohol during the evening. Ms. Kwieton, at some point, went to the washroom and encountered Ms. Penner-Younker who said something to her. Ms. Kwieton did not hear what was said and responded with something like, "I'm sorry, did you say something to me?" Without responding, Ms. Penner-Younker grabbed Ms. Kwieton by the neck and threw her against the bathroom mirror and held her there. [ 17 ] As this was occurring, Ms. Smirfitt entered the washroom. She intervened verbally and said something to Ms. Penner- Younker. Ms.

Penner-Younker then ran at Ms. Smirfitt and punched her in the face, causing her to fall to her knees. Ms. Penner- Younker then began to strike Ms. Smirfitt in the face and head and pull at her hair. Ms. Kwieton collected herself and tried to help her friend, Ms. Smirfitt. Ms. Penner-Younker then turned back to Ms. Kwieton and cornered her near the sink in the bathroom and continued to punch her. Ms. Smirfitt ran out of the washroom to get help; staff were outside the door of the washroom and entered the bathroom to see Ms. Penner-Younker ripping at Ms.

Kwieton's hair. [ 18 ] The police were called and arrived shortly thereafter. Mr. Healey told me that staff at the bar pointed out the accused to the officers who arrived. [ 19 ] The injuries suffered by the two complainants are depicted in photographs filed by the Crown. A victim impact statement written by Ms.

Kwieton was filed in which she indicates that two of her front teeth were chipped during the assault, that she experiences ongoing pain, that she will require extensive dental reconstruction, that she suffered a concussion as a result of the assault and that she is now unable to use a public washroom without being accompanied by someone she knows as a result of fear generated by this assault.

The victim impact statement is not dated and I was not told when it was written. [ 20 ] Having heard these circumstances and having reviewed the photographs and read part of the victim impact statement, I questioned counsel about the appropriateness of the proposed amendment to Count 1 and the appropriateness of the plea that was offered by the accused and consented to by the Crown. [ 21 ] We stood down so that counsel could discuss these issues. When we reconvened, Ms. Penner-Younker entered a plea of guilty to Count 4, assault on Laura Smirfitt. Mr. Healey said later that he and Ms.

Glouberman accepted that the proposed amendment was not appropriate. [ 22 ] Regarding the appropriateness of the plea proposed, Mr. Healey submitted first that the plea offered by Ms. Penner-Younker had, in fact, already been accepted by the court. He noted that the record of proceedings in the court file showed that the plea had been entered. I mean no disrespect, but this was a nonsensical submission given that we had already agreed that on May 7, 2012, I said clearly that I would consider whether the plea was appropriate once I had heard circumstances.

The recording of the plea was clearly simply a clerical error. [ 23 ] Next, Mr. Healey pointed out that I could not have ordered a Pre-Sentence Report unless I had, in fact, accepted the plea which was offered.

At the time, that is on July 16, during submissions, I responded that I may have been mistaken in ordering that the report be prepared prior to accepting the plea, but the fact that I ordered the report did not mean that I accepted the plea when I specifically said that I was not accepting the plea. [ 24 ] I have re-read s. 721(1) of the Criminal Code and it reads as follows: Subject to regulations made under subsection (2), where an accused, other than an organization, pleads guilty to or is found guilty of an offence, a probation officer shall, if required to do so by a court, prepare and file with the court a report in writing relating to the accused for the purpose of assisting the court in imposing a sentence or in determining whether the accused should be discharged under

section 730. [ 25 ] In my view, the section's language leaves open the potential for a court to order that a Pre-Sentence Report be prepared after a plea is offered, but before it is accepted. In any event, as I said on July 16, 2012 if I ordered that a Pre-Sentence Report be prepared prematurely, it does not follow that I must have accepted the plea of the accused when I said that I was not accepting that plea. [ 26 ] I have reviewed transcripts of the proceedings in this matter. The reasons given by Mr. Healey consenting to Ms.

Penner- Younker's plea of assault on Count 1 of Michelle Kwieton are these: (1) there may have been some issues respecting evidence identifying Ms. Penner-Younker as the person who attacked Ms. Kwieton and Ms. Smirfitt. I will say about this, that given the circumstances set out by Mr. Healey, that Ms. Smirfitt was not intoxicated, that staff at the bar saw the person who was attacking Ms. Kwieton in the washroom and that Ms. Penner-Younker was pointed out to the police when they arrived shortly after the events, whatever issues there may have been respecting identification must have been minor.

In response to my concerns, Mr. Healey noted in particular that all of the young women in the group which included Ms. Penner- Younker and Ms. Agla were wearing red dresses, but they had different coloured hair. I will simply note that the circumstances he read in included that Ms. Agla, the co-accused, was wearing a brown dress, not a red dress, so this statement cannot be correct. Further, Ms. Penner-Younker has a distinctive colour of hair; she would stand out in a crowd of young women wearing red dresses. In any event, as I have indicated, the facts read in by Mr. Healey included that Ms.

Penner-Younker was pointed out to the police, that the police boarded the vehicle where she was and removed her from it and that they arrested her at the scene.

(2) That the victims were content with the plea offered. And indeed, Mr. Healey told me that their families were content with the plea and also the police were content with that course of action. None of those persons determine the course of a prosecution in British Columbia, although their wishes may certainly, and properly, be taken into account by the Crown in making what should be independent decisions as to whether and how to prosecute an individual.

(3) That court time was saved. I will just say about this issue that no court time was saved here, and I have gone over the circumstances in order to demonstrate why that is so. Counsel confirmed in March that the trial would proceed on May 7th, 8th, and 9th, 2012. The pleas were offered on the morning of the first day scheduled for hearing. No other matters could be scheduled for the following two days, I think for obvious reasons.

This could not have been and should not have been a factor taken into account by reasonable Crown counsel in assessing the appropriateness of the plea offered by the accused. [ 27 ] Ultimately, Mr. Healey said that he as Crown counsel considered that consenting to the plea of assault was "appropriate in the circumstances". [ 28 ] In my view the reasons given by Mr. Healey do not support the reasonableness of his consent to the plea offered by Ms. Penner- Younker.

Not only is the plea offered obviously inappropriate in light of the circumstances read in by the Crown, but the context, the other aspects of this matter to which I have referred, give the court no confidence that the prosecutor has approached his duties in a fair, professional and reasonable fashion. [ 29 ] When I consider whether the Crown's decision to accept the plea offer is reasonable, I cannot avoid considering other aspects of the Crown counsel's conduct of this matter. Mr. Healey's suggestion respecting the amendment of Count 1 to include the victim in Count 4 was clearly completely inappropriate.

His submissions aimed at binding the court to the offered plea when he had agreed that I had clearly said that I was not going to accept the plea until I had heard about the circumstances, those submissions, in my view, were inappropriate and unreasonable. Mr. Healey was submitting on the basis of clerical error and, in my view, a misunderstanding of s. 721(1) that I must have done something that I had very clearly said that I was not doing. [ 30 ] Finally, there was what I will refer to as "shifting sands" in respect of the facts.

Having filed the photographs and the victim impact statement and having described in detail Ms. Kwieton's injuries himself in response to my expression of concern about the bodily harm that was being described, Mr. Healey repeatedly highlighted the fact that EHS was not called for Ms. Kwieton immediately after the events as if this meant that her injuries were not serious. Clearly they were. She has two badly chipped teeth at the very least as a result of these events. [ 31 ] Further, Mr. Healey referred to the events involving Ms. Kwieton as "momentary", which they clearly were not. [ 32 ] At one point, Mr.

Healey said this, and I am reading from the transcript of proceedings on July 16, 2012, at page 17, line 11: This is not, for example, aggravated assault reduced to assault simpliciter. This is a chipped tooth with some other impacts, as Your Honour is aware that Your Honour has concerns with, but it's a fine line. That's what I’m trying to suggest to the court with the greatest of respect, all of which is respectfully submitted. [ 33 ] This and comments like this in light of the photographs filed and the victim impact statement and the facts he himself read in can only be seen as an attempt by Mr.

Healey to inappropriately minimize the circumstances. [ 34 ] I will just focus on the suggestion that the injury that Ms. Kwieton suffered was "a chipped tooth". The photographs which were filed show that Ms. Kwieton's two front teeth were damaged as a result of the attack by Ms. Penner-Younker. Her right front tooth is chipped; one corner of the tooth is missing. Her left front tooth is obviously more seriously damaged. Approximately one-eighth of the tooth is missing. Ms.

Kwieton's victim impact statement indicates that she has pain as a result of the damage to her teeth, both at rest and while eating, that she cannot drink except with a straw and cannot bite into food. She also indicates that she suffered nerve damage in two other teeth as well and will need extensive dental work to restore her teeth. This can hardly be described as "a chipped tooth". [ 35 ] Ultimately I must decide, given that the facts as related by Mr.

Healey indicate that the full offence of assault causing bodily harm was committed -- and I place no onus on anyone in this respect, I simply consider all of the circumstances -- whether it has been shown that the exercise of prosecutorial discretion here is reasonable. I conclude that the decision to consent to Ms. Penner-Younker's plea of assault of Ms. Kwieton was unreasonable and I decline to record that plea. (RULING CONCLUDED)