R v Phinney, 2023 NBPC 9

Citation: R v Phinney , 2023 NBPC09 Docket: 35995201 IN THE PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF MONCTON BETWEEN: HIS MAJESTY THE KING - and – PAMMELIA PHINNEY RULING Before: The Honourable Anne M Richard Date of Hearing: January 31, 2023 Date of Ruling: February 17, 2023 Appearances: Malika Levesque and Clémence Talbot for His Majesty the King

Daniel Gallant for the Accused, Pammelia Phinney Orally [1] The accused, Pammelia Phinney plead guilty to the offence of aggravated assault on Maxime Inder by wounding or maiming himcontrary to subsection 268(2) of the Criminal Code of Canada («Code»). In addition, she plead guilty to the offence of obstructing apeace officer, Constable Dwayne Woodman contrary to

section 129(

d) of the Code. [2] During her sentencing hearing, the crown seeks to have admitted into evidence as an exhibit a video purporting to depict the actusreus of the offence of aggravated assault. It is my understanding that the video in question is not very lengthy but depicts the victim,Maxime Inder as he is set on fire by Ms. Phinney. It is said to be graphic. [3] What follows is my ruling on the issue of whether the video is admissible evidence and should be viewed by the Court. [4] I will briefly refer to each party’s position first. [5] The Crown argues that

section 723 of the Criminal Code of Canada in its broad language specifically allows all relevant evidence tobe introduced at the sentencing hearing. For ease of reference, the

section is question is quoted here. Specifically, it dictates that: 723(1) Before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions withrespect to any facts relevant to the sentence to be imposed 723(2) The court shall hear any relevant evidence by the prosecutor or the offender. [6] It relies on two general principles in support of its position. On the one hand, the purpose and interests served by sentencing anaccused of a violent crime as aptly described in R v Jones (SCC), [1994] 2 S.C.R. 229 by the Supreme Court of Canadaare relevant.

Justice Gonthier for the majority reiterates in obiter societal values that underscore sentencing hearings. While the Jonesmatter concerns the adjudication of dangerous offender status for an offender that had committed numerous sexual assaults and theadmissibility of psychiatrist reports, his description of these principles is important. Justice Gonthier statement found at page 289 isworth mentioning here.

I quote: As with all sentencing, both the public interest in safety and the general sentencing interest of developing the most appropriatepenalty for the particular offender dictate the greatest possible range of information on which to make an accurate evaluation of thedanger posed by the offender. [7] Our Court of Appeal recently addressed s. 723 when an accused wanted to adduce evidence of mitigating circumstances. In the caseof R v Boehler, 2019 NBCA 36, the essential elements of the offence had been made out by the crown and agreed to by defense.

However, the accused wished to put before the court evidence that she was not the sole party to blame in a dispute involving neighbors. The Court ruled that to deny such evidence amounted to an error in law. To that end, at paragraph 7, the court states the following: In our view, both the sentencing judge and the

summary conviction appeal court judge erred in law in their rejection of Ms. Boehler’smaterials. Both judges focused solely on the question of whether the materials in question were relevant to the establishment of herguilt, that is whether she had in fact exposed her buttocks to her neighbours; however, neither judge considered whether the profferedevidence might show mitigating circumstances relevant to the sentencing process. [8] It may make no difference given the specific wording found in

section 723 that refers to either the prosecutor or the offender. [9] On the other hand, defense counsel argues that

section 723 of the CCC does indeed provide the Court with a discretion to admit or nototherwise relevant evidence if its prejudicial effect would outweigh its probative value. In essence, there is no rational reason to view thevideo. [10] Given the graphic nature of the video, it would serve the only purpose of over dramatizing the situation and could garner anemotional response from the Court. Defence Counsel advances that the facts and its egregious nature have been agreed to and confirmedby the accused including the description of the actus reus. It is stated that there is no mystery as to what happened to Mr.

Inder. Photoshave been entered into evidence by consent of the parties depicting the injuries suffered by Mr. Inder. It is argued that the video wouldnot in fact reveal anything that has not already been disclosed by the Crown and for which Ms. Phinney has acknowledged happening bypleading guilty. In other words, the video would not add to the evidence before the Court. [11] The case of R v P.M, 2012 ONCA 162 a relatively recent decision from the Ontario Court of Appeal is cited in support of theposition not to view the video.

In that case, a disc containing a sampling of child pornography found on the accused computer as wellas video of him sexually assaulting his daughter were sought to be entered as exhibit and to be viewed by the Court. This was opposed

both by defence and the victim daughter. The trial judge placed on the record the facts that he had been counsel for the Children’s Aid Society for 15 years prior to being appointed to the bench. Further, he stated on the record that he sat as a judge for almost 20 years and had viewed countless videos of a similar nature and worse. Justice Hunt concluded than that it was not necessary for him to view the video in order to grasp the nature and circumstances of the crimes committed.

He indicated in his decision that without viewing the video or the disc he nonetheless could appreciate the events and impact on the victim. [ 12 ] Justice Rosenberg for the majority of the CA ruled at paragraph 37: … I have not been persuaded that there is a reason to interfere with the trial judge’s view that prejudicial effect of the evidence outweighed its probative value in the unusual circumstances of this case.

I am also satisfied that the Crown was able to adequately present its case at the sentencing hearing. [ 13 ] I interpret unusual circumstance in that case as referring to the fact that the victim was in the courtroom and opposed the viewing of the view and that the presiding judge had indicated in detail on the record his specialized experience as a lawyer with Children’s Aid and his 20 years as a sitting trial judge in criminal court. [ 14 ] Justice Epstein from the Court of Appeal was dissenting on this point and concluded that the evidence should have been admitted.

At paragraph 63, he notes… Having viewed the disc, I am of the opinion that it should have been admitted as an exhibit. It offers considerable value in terms of the appreciation of the nature and gravity of the sexual offences. This value was not offset by any relevant prejudice. [ 15 ] It is also important to state that

section 726.1 of the CCC prescribes that: In determining the sentence, the court shall consider any relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or offender. [ 16 ] As already mentioned, the New Brunswick Court of Appeal in R v Boehler does not appear to address the issue from the Crown’s perspective of adducing evidence to argue any aggravating factors or to depict the actus reus of a crime.

However, other courts appear to have ruled that this is an appropriate and relevant purpose and are reference at par. 102 of Justice Epstein’s reasons in dissent in P.M . [ 17 ] This Court approaches all cases including this one in a dispassionate and impartial manner. Given all the circumstances at issue, my

interpretation of the governing legal principles and the statutory provisions that guide sentencing hearings that I have references, I rule that the video is admissible and therefore should be marked as an exhibit and viewed. [ 18 ] Given that the accused is not physically present today because of the weather and a decision by the sheriffs regarding prisoner transportation, I will leave it to defence counsel and to the crown to make submissions whether she should be present in the courtroom or that it may be viewed while she appears by video conference. ______________________________ Anne M Richard Judge of the Provincial Court of New Brunswick