2012 NBCA 68, 2012 NBCA 68

COURT OF APPEAL OF NEW BRUNSWICK 154-11-CA STEPHEN FRANCIS NAGLE APPELLANT STEPHEN FRANCIS NAGLE APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Nagle v. R., 2012 NBCA 68 Nagle c.

R., 2012 NBCA 68 CORAM: The Honourable Justice Bell The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Bell L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Provincial Court: September 26, 2011 Appel d’une décision de la Cour provinciale : Le 26 septembre 2011 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: May 8, 2012 Appel entendu : Le 8 mai 2012 Judgment rendered: August 2, 2012 Jugement rendu : Le 2 août 2012 Reasons for judgment by: The Honourable Justice Green Motifs de jugement : L’honorable juge Green

Concurred in by: The Honourable Justice Bell The Honourable Quigg Souscrivent aux motifs : L’honorable juge Bell L’honorable juge Quigg Counsel at hearing: For the appellant: No one appeared for Stephen Francis Nagle For the respondent: Cameron H. Gunn Avocats à l’audience : Pour l’appelant : Personne n’a comparu pour Stephen Francis Nagle Pour l’intimée : Cameron H. Gunn THE COURT The application for leave to appeal sentence isdismissed. LA COUR La demande en autorisation d’appel de la peine estrejetée. The judgment of the Court was delivered by GREEN J.A. [1] The appellant pled guilty to a charge under s. 463(

a) of the Criminal Code of attempting tocommit an indictable offence for which the accused would have been liable for life imprisonment, notably break and enter into adwelling house. He was sentenced to a period of incarceration of 48 months, less time served in remand, notwithstanding a jointsentencing recommendation which proposed 34 months incarceration, again less time served. The appellant now seeks leave to appealthe sentence imposed. For the reasons which follow, I would dismiss the leave application. [2] This Court most recently considered the rejection of joint recommendations on sentence inSteeves v.

R., 2010 NBCA 57, 360 N.B.R. (2d) 88. In Steeves, Drapeau C.J.N.B. provided a framework for sentencing judges to followin cases of this nature: In this country and certainly in New Brunswick, courts are required to give considerable weight to a joint recommendation on sentence.While courts are not bound by an agreement arising from resolution discussions between the parties, including a negotiated plea andjoint recommendation on sentence, the latter's rejection must be the by-product of a principled exercise of discretion. In R. v. Guignard(2005), 282 N.B.R. (2d) 346, [2005] N.B.J.

No. 132 (QL), 2005 NBCA 35, the Court made the following observations on point: In R. v. LeBlanc (G.A.) at para. 23, the Court recognized that joint recommendations on sentence "provide important guidance and carryconsiderable weight." Joint recommendations express the views of those charged with the primary responsibility of furthering the bestinterests of the accused and those of society as a whole during the sentencing process. As such, those recommendations, while not legallybinding, deserve serious consideration and ought not to be disregarded lightly by sentencing judges.

In our view, a joint recommendation on sentence should be followed unless it is unreasonable. In that regard, we endorse the views ofFish, J.A. (as he then was) in R. v. Douglas (2002), (QC CA), 162 C.C.C. (3d) 37 (Que. C.A.) at paras. 42-43 and51:

Canadian appellate courts have expressed in different ways the standard for determining when trial judges may properly reject jointsubmissions on sentence accompanied by negotiated admissions of guilt. Whatever the language used, the standard is meant to be an exacting one. Appellate courts, increasingly in recent years, have stated timeand again that trial judges should not reject jointly proposed sentences unless they are "unreasonable", "contrary to the public interest","unfit", or "would bring the administration of justice into disrepute".

That said, I would adopt the following formulation because it emphasizes the exacting nature of the standard that courts must apply incases such as the present one: a proposed disposition ought to be rejected only if it is so off the mark that its adoption by the court wouldbring the administration of justice into disrepute or would otherwise be contrary to the public interest. That is the standard proposed inthe Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, chaired by TheHonourable G.

Arthur Martin, the salient parts of which are referenced by Fish J.A., now a justice of the Supreme Court of Canada, in R.v. Douglas (2002), (QC CA), 49 C.R. (5th) 188, [2002] Q.J. No. 418 (C.A.) (QL): The Ontario Court of Appeal has enunciated the applicable standard in terms proposed by the Report of the Attorney General's AdvisoryCommittee on Charge Screening, Disclosure and Resolution Discussions, chaired by The Honourable G. Arthur Martin ("MartinReport"). The policy purposes underlying the Court's approach and its choice of terminology are well explained in the Martin Report.

These arethe particularly relevant passages: The Committee has ... concluded that resolution discussions are inherently desirable, and of considerable practical benefit to theadministration of criminal justice in Ontario.

Recognizing that the practice of resolution discussions, even though inherently desirable, isopen to some misuse and to some misunderstanding by the public at large, the Committee has formulated a series of recommendationsaimed at eradicating the problems, both real and perceived, that are associated with unrestrained resolution discussions ... [T]heCommittee recommends that a sentencing judge should depart from the joint submission offered only where it would bring theadministration of justice into disrepute or would otherwise be contrary to the public interest.

The Committee recognizes that an important, sometimes the most important, factor in counsel's ability to conclude resolutionagreements, thereby deriving the benefits that such agreements bring, is that of certainty. Accused persons are, in the Committee'sexperience, prepared to waive their right to a trial far more readily if the outcome of such a waiver is certain, than they are for the purelyspeculative possibility that the outcome will bear some resemblance to what counsel have agreed to.

And likewise, from the perspectiveof Crown counsel, agreed upon resolutions that have a stronger, rather than weaker sense of certainty to them are more desirable becausethere is less risk that what Crown counsel concludes is an appropriate resolution of the case in the public interest will be undercut. Since certainty of outcomes facilitates resolution discussions and agreements, and since resolution agreements, as the Committee viewsthem, are beneficial and fair, it follows, in the Committee's view, that certainty in outcomes of resolution discussions should bepromoted.

Naturally, the outcomes of resolution discussions would be perfectly certain if there were a rule that a judge could not departfrom them. As discussed above in the introduction to this chapter, other jurisdictions approach this state of affairs by permitting the pleato be struck if the sentencing judge does not accept the joint submission. But this is not the law in Ontario, nor, in the Committee's view,should it be. It is fundamental to our system of justice that the court, not the parties, have the last word.

While the presiding judge cannot have his or her sentencing discretion removed by the fact of there being a joint submission, it is nonethe less appropriate, in the Committee's view, for the sentencing judge to have regard to the interest of certainty in resolution discussionswhen faced with a joint submission.

Accordingly, where there is no reason in the public interest or in the need to preserve the repute ofthe administration of justice to depart from a joint submission, a sentencing judge should, in the Committee's opinion, give effect to theneed for certainty in agreed upon resolutions by accepting the joint submission of counsel. […] The Committee is of the view that the record created in sentencing proceedings should not be sparse, but, rather, must always fullysupport the submissions made ...

In encouraging the sentencing judge to place appropriate emphasis upon a joint submission, theCommittee is thereby placing a corollary obligation upon counsel to amply justify their position on the facts of the case as presented inopen court.

[…] The sentencing judge will not, in the Committee's view, have committed any error in principle in accepting a joint submission, as recommended above, provided he or she arrives at the independent conclusion, based upon an adequate record, that the sentence proposed does not bring the administration of justice into disrepute and is otherwise not contrary to the public interest. Indeed, this recommendation embodies the essence of the sentencing judge's obligations in passing sentence.

In so recommending, the Committee has endeavoured to define the discretion of the sentencing judge in sufficiently broad terms to ensure that the sentence imposed is ultimately just, but at the same time has accorded the parties as much assurance as can be had that their agreed-upon resolutions will find favour with the Court.

In this way, it is hoped that the justice system and the community as a whole can profit to the greatest extent possible from the benefits of resolution discussions. [paras. 30-31] [Emphasis in original.] [ 3 ] In the present case, the joint recommendation on sentence called for a period of incarceration of 34 months. The Crown explained the rationale behind the proposed sentence by stating that had Mr. Nagle entered a guilty plea on a “full-fledged offence of break and enter, a home invasion type of situation”, the Crown would have sought a sentence of 5½ to 6 years. In other words, had Mr.

Nagle’s plan not been thwarted at the door by the victim, the Crown would have asked for a sentence of approximately 66 months.

In the circumstances, counsel simply divided that figure in half. [ 4 ] The sentencing judge received the joint recommendation on August 26, 2011, and immediately voiced her concern: […] I’m not sure it’s acceptable […] I’m going to need some time to consider and I’m going to want some case law wherein it’s similar and I want to give you a chance to provide me with some case law in support of your recommendation because to me this is very low […] for a proposed sentence for this type of offence considering all of the aggravating factors that are present.

The matter was adjourned, counsel were provided with time to provide relevant jurisprudence, and the sentencing hearing resumed on September 26, 2011, at which time counsel were afforded the opportunity to make further argument. [ 5 ] Having thoroughly considered the joint recommendation, the case law, and the oral arguments presented, the sentencing judge responded to the proposed approach as follows: […] I have not found any case-law in support of such a proposition. My reading of the Criminal Code is simply that an attempted break and enter has a maximum sentence of 14 years.

The idea that one must determine what the sentence would have been had the break and enter occurred and then divide by half is not supported by case-law that I could find. […] […] I cannot accept the joint recommendation of the parties in this case as I find the joint recommendation to be clearly unreasonable and based on [a] premise in law, which does not appear to be supported by case-law or legislation. [ 6 ] I agree with the sentencing judge’s analysis and conclusions.

The formula adopted by counsel in crafting their joint recommendation on sentencing has no basis in law. [ 7 ] In my opinion, the sentencing judge was justified in rejecting the joint recommendation. Moreover, her approach respected the framework articulated in Steeves , and stands as an example for others to follow. To summarise the steps taken, I can do no better than borrow the following excerpt from the respondent’s submission:

Ultimately the sentencing Judge found that she could not accept the sentencing recommendation as it was clearly unreasonable and “…based on the premise in law, which does not appear to be supported in case-law or legislation.” While she did not specifically state that the joint recommendation was not in the public interest or would bring the administration of justice into disrepute, she was not required to say those words so long as she effectively did what the test requires ( see R. v. Ramos 2007 ONCA 341 at paragraph 1 ).

In the Respondent’s submission the sentencing judge did do what is required of a judge in rejecting a joint submission which was the following: 1) Advised the parties of her concerns; 2) Offered them an opportunity to make further submissions (which they did); 3) Came to the conclusion that the sentence was unreasonable (and thus, effectively contrary to the public interest or would bring the administration of justice into disrepute); and 4) Explained and justified her departure from a joint submission. [ 8 ] I see no error on the part of the sentencing judge calling for appellate intervention, and would dismiss the application for leave to appeal sentence. ____________________________ BRADLEY V.

GREEN, J.A. WE CONCUR: _____________________________ B. RICHARD BELL, J.A. _____________________________ KATHLEEN A. QUIGG, J.A.