2014 NBCA 50, 2014 NBCA 50

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 28-14-CA TREVOR HOWIE DOW APPELLANT TREVOR HOWIE DOW APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Dow v. R., 2014 NBCA 50 Dow c.

R., 2014 NBCA 50 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Green CORAM : l’honorable juge Richard l’honorable juge Bell l’honorable juge Green Appeal from a decision of the Provincial Court: January 31, 2014 Appel d’une décision de la Cour provinciale : le 31 janvier 2014 History of case: Decision under appeal: Unreported Preliminary or incidental proceedings: N.A. Historique de la cause : Décision frappée d’appel : inédite Procédures préliminaires ou accessoires : s.o.

Appeal heard and judgment rendered: June 19, 2014 Appel entendu et jugement rendu : le 19 juin 2014 Reasons delivered: July 24, 2014 Motifs déposés : le 24 juillet 2014

Counsel at hearing: Trevor Howie Dow appeared in person For the respondent: David Schermbrucker and M.-C. Nicole Angers THE COURT The appeal against sentence is allowed. The sentence is varied to imprisonment for three years but the execution of the sentence is stayed. The corollary orders made in the Provincial Court remain intact. Avocats à l’audience : Trevor Howie Dow a comparu en personne Pour l’intimée : David Schermbrucker et M.-C.

Nicole Angers The following is the judgment delivered by THE COURT (Orally) [ 1 ] This appeal arises out of a most unusual set of circumstances and will result in a most unusual disposition in order to respect principles of fundamental justice. [ 2 ] Trevor Howie Dow appeals a sentence of three years imprisonment a judge of the Provincial Court imposed on January 31, 2014, after Mr. Dow pled guilty to three counts alleging he had illegally offered to sell firearms or ammunition ( s. 99(1) (

b) of the Criminal Code , R.S.C. 1985, c. C-46). The sentence is the mandatory minimum the Criminal Code provides for that offence. It was ordered to be served con c urrently with a sentence of three years imprisonment the same Provincial Court judge had imposed on September 27, 2012, after Mr. Dow had pled guilty to four counts of trafficking in cocaine under s. 5(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19, and four corresponding counts of possession of proceeds of crime under s. 354 of the Criminal Code . That particular sentence was upheld on appeal: Dow v.

R. , 2014 NBCA 15 , [2014] N.B.J. No. 56 (QL) . All crimes were committed in the course of an RCMP operation in which a civilian agent interacted with a number of targets. The discussions were recorded pursuant to a one-party consent wiretap authorization. [ 3 ] While the guilty pleas for the offences under the Controlled Drugs and Substances Act and for the corresponding proceeds of crime offences were entered early after the Information was laid, the matter of the firearm-related charges made its way through the courts in the normal course. Mr. Dow initially elected to be tried by judge alone.

This led to a preliminary inquiry. He eventually re-elected to the jurisdiction of the Provincial Court, where he pled guilty to three of six counts. This resulted in the impugned sentence. In the result, Mr. Dow was sentenced to three years on September 27, 2012, after his early guilty pleas, and again to three years on January 31, 2014, after changing his plea to three of the six firearm-related charges. [ 4 ] The facts surrounding the firearm-related charges are that during his interactions with the civilian undercover agent for the purchase and sale of cocaine, Mr.

Dow also offered to traffic firearms and ammunition, that is two handguns and ammunition. However, neither firearm nor ammunition was, in the end, actually provided to the civilian agent. [ 5 ] The Attorney General of Canada concedes that if Mr. Dow had pled guilty to all offences at the same time, the prosecution would have agreed the sentences imposed for the firearm-related offences should be served concurrently

with those imposed for the other offences. This is probably what motivated counsel for the Attorney General (not counsel on appeal) on January 31, 2014, to join Mr. Dow’s trial counsel in recommending to the Provincial Court judge that the mandatory minimum sentence for the firearm-related offences be served concurrently with the three years imprisonment previously imposed. In other words, prosecution and defence counsel jointly recommended that the sentence of three years imposed on January 31, 2014, would effectively be “back dated” to commence on September 27, 2012.

The Provincial Court judge agreed with the joint recommendation and sought to give effect to it. [ 6 ] Soon thereafter, the correctional authorities informed Mr. Dow his anticipated release date had changed as a result of his latest convictions. This is when Mr. Dow learned that the sentence imposed for the firearm-related offences would only run concurrently with the yet to be served portion of the sentence previously imposed.

This is so because s. 719(1) of the Criminal Code provides that “[a] sentence commences when it is imposed […].” [ 7 ] After seeking a solution from the Provincial Court judge, who amended the Warrant of Committal to indicate his intent that the three years for the firearm-related offences be served concurrently with the three years for the other offences, Mr. Dow applied for leave to appeal his sentence. A judge of this Court granted leave on May 8, 2014: Dow v. R, [2014] N.B.J.

No 124 (QL) . [ 8 ] In their written submission on appeal, counsel for the Attorney General correctly state that the real issue in this appeal is whether this Court should seek to give effect to the intention of the parties, as accepted by the Provincial Court judge, that Mr. Dow not effectively serve more prison time than the three years to which he was sentenced on September 27, 2012. Quite honourably, counsel for the Attorney General urges this Court to do so. The solution they identify is for us to dismiss the sentence appeal but order that the execution of the sentence be stayed in the interests of justice.

They point to a number of cases where, in exceptional circumstances, similar relief was ordered. All but one of these cases involved allowing a sentence appeal by the Attorney General but staying the execution of the sentence. The one exception is R v. Sinclair , 2012 MBCA 24 , [2012] M.J. No. 102 (QL) , where the Manitoba Court of Appeal simply stayed the execution of what they termed to be a proper sentence.

The Court did so because the appellant had been out in the community for a long time pending an appeal to the Supreme Court of Canada, and had made significant rehabilitative gains during that time. [ 9 ] Pointing to s. 687 of the Criminal Code , counsel for the Attorney General correctly state that, in the case of a sentence appeal by an offender, the Court’s authority is to either vary the sentence or dismiss the appeal.

Counsel argues that logic dictates that the Court of A ppeal must implicitly have the power to dismiss a sentence appeal, yet order that execution of the sentence be stayed “where exceptional circumstances require that it be done.” [ 10 ] It is common ground that Mr. Dow entered guilty pleas to the firearm-related offences as part of a genuine plea agreement. Pursuant to that agreement a joint recommendation would be made for a sentence that was in effect legally impossible. The error of both Mr.

Dow’s trial counsel and prosecuting counsel was compounded when the Provincial Court judge sought to give effect to the joint recommendation. [ 11 ] In our view, it would offend the principles of fundamental justice to allow the state to conclude a plea agreement where a critical condition of the agreement is legally impermissible.

Since the plea agreement was obtained in such circumstances, there was, in this case, a violation of s. 7 of the Canadian Charter of Rights and Freedoms , which provides that one has the right not to be deprived of liberty except in accordance with the principles of fundamental justice. While what arguably amounts to an abuse of process might have been innocently committed, everyone agrees the plea agreement was concluded with a critical condition that constituted a legal impossibility. In the end, if he were required to serve the sentence imposed for the firearms-related offences, Mr.

Dow would be deprived of his liberty on the basis of a guilty plea induced by the error of both his counsel and prosecution counsel, a situation which, according to us, would be contrary to the principles of fundamental justice that underlie the community’s sense of fair play and decency. [ 12 ] Once the Charter issue that arises in this case was explained to him, Mr. Dow applied for relief pursuant to s. 24(1), which provides that he may seek to obtain such remedy as the Court considers appropriate in the circumstances. Counsel for the Attorney General did not oppose such a late application. In addition, Mr.

Dow adduced fresh evidence to demonstrate the facts surrounding his guilty plea and the manner in which the sentence imposed on January 31, 2014, has been applied to the calculation of his eventual release date. With the consent of the Attorney General, that evidence was accepted. [ 13 ] Counsel for the Attorney General takes a position in this appeal that would preserve the honour of the Crown, in that they recognize the condition of a joint recommendation on sentence was a critical component of the plea agreement.

Since the sentence recommended was not legally permissible and its execution would be unjust in the unusual circumstances of this case, counsel urges us to rectify the situation. Where we

part company with counsel is only in the mechanism to achieve this end. In our view,

we should not dismiss the appeal and impose a stay. Rather, we should allow the appeal and vary the sentence to one identical to the one imposed in the Provincial Court, but with an order issued pursuant to s. 24(1) of the Charter that the execution of the imprisonment portion of the sentence be stayed. In our view, if the fresh evidence adduced on appeal had been before the Provincial Court judge and if he had considered all the circumstances as currently known, this is the order that would have been made in the Provincial Court. [ 14 ] For these reasons, the appeal is allowed.

The sentence is varied to imprisonment for a term of three years but the execution of that sentence is stayed. All corollary orders made in the Provincial Court remain unchanged. ______________________________ J.C. MARC RICHARD, J.A. ______________________________ B. RICHARD BELL, J.A ______________________________ BRADLEY V. GREEN, J.A.