2011 NBCA 86, 2011 NBCA 86

COURT OF APPEAL OF NEW BRUNSWICK 9-11-CA F.Y. APPELLANT F.Y. APPELANTE - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE F.Y. v. R., 2011 NBCA 86 F.Y. c.

R., 2011 NBCA 86 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: December 30, 2010 Appel d’une décision de la Cour provinciale : Le 30 décembre 2010 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: May 26, 2011 Appel entendu : Le 26 mai 2011 Judgment rendered: September 29, 2011 Jugement rendu : Le 29 septembre 2011 Reasons for judgment by: The Honourable Justice Bell Motifs de jugement : L’honorable juge Bell

Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Quigg L’honorable juge Green Counsel at hearing: For the appellant: F.Y. appeared in person For the respondent: Cameron H. Gunn Avocats à l’audience : Pour l’appelante: F.Y. a comparu en personne Pour l’intimée : Cameron H. Gunn THE COURT The application for leave to appeal sentence isallowed. The appeal is allowed, and the sentence is variedto one of six months imprisonment, less timeserved multiplied by 1.5. LA COUR Accueille la demande d’autorisation d’interjeterappel de la peine.

L’appel est accueilli et la peine est modifiée, celle-ci étant ramenée à six mois d’emprisonnementmoins une réduction correspondant à une fois etdemie la période passée sous garde. The judgment of the Court was delivered by BELL J.A. I. Introduction [1] On December 30, 2010 the appellant pled guilty before a judge of the Provincial Court to the offence of breakand enter into a dwelling house and committing mischief therein, an offence set out in s. 348(1)(

b) of the Criminal Code. The ProvincialCourt judge imposed a sentence of 1 year of imprisonment followed by a term of probation. The appellant appeals from sentence only. [2] The standard of review to be applied in sentencing appeals is set out in such cases as R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52 (QL); R. v. C.A.M., (SCC), [1996] 1 S.C.R. 500, [1996]S.C.J. No. 28 (QL); R. v. R.K.J. (1998), (NB CA), 207 N.B.R. (2d) 24, [1998] N.B.J. No. 483 (C.A.) (QL); R. v.LeBlanc, 2003 NBCA 75, 264 N.B.R. (2d) 341; R. v. R.P. 2001 NBCA 115, 245 N.B.R. (2d) 179; R. v.

Williams, 2009 NBCA 79, 351N.B.R. (2d) 263; R. v. Black, 2010 NBCA 36, 360 N.B.R. (2d) 132; R. v. Nash, 2009 NBCA 7, 340 N.B.R. (2d) 320; R. v. Howe, 2007NBCA 84, [2007] N.B.J. No. 515 (QL); the most recent being R. v. Steeves, 2010 NBCA 57, 360 N.B.R. (2d) 88, where Chief JusticeDrapeau succinctly summed up the jurisprudence when he said: In sum, a court of appeal is not at liberty to substitute its view of the fitness for that of the sentencing judge unless the sentence imposedis the product of either an error of law or an error in principle, or unless it is clearly unreasonable. [para. 25]

[3] On the date the appeal was heard, we granted leave, allowed the appeal and substituted a term ofimprisonment of 6 months less time served in pre-hearing custody multiplied by 1.5, in lieu of the 12 months imposed by the sentencingjudge. We indicated reasons would follow. These are our reasons. II. Provincial Court judge’s errors of law and principle A.

Failure to provide an opportunity to be heard/bias [4] Before setting out the facts relevant to sentencing, I will first refer to those portions of the transcript thatdemonstrate error of law and error of principle by the Provincial Court judge which, in my view, permit this court to substitute its view ofthe appropriate sentence. Part way through the Crown’s representations on sentencing, the following exchange occurred between theCrown prosecutor and the judge: MS.

DRAIN: […] I think she might have some hope or suggestion that the Court may consider the imposition of a sentence undersection 742, a conditional sentence. We would be – THE COURT: Forget it. MS. DRAIN: Okay; we would be opposed to it, plus it shows a break on her record that she doesn’t – THE COURT: You know what I think of those anyway, Ms. Drain, so – MS.

DRAIN: Yes, I do, Your Honour; so in the circumstances we’re asking the Court to consider a period of incarceration I wouldsuggest in the range of 18 to 24 months with regard to this matter. [5] With respect to that exchange, I would make the following observations. First, the Crown provided notice tothe Provincial Court judge that the appellant believed the facts of the case merited a conditional sentence and wished to makerepresentations in that regard.

Second, the Provincial Court judge made up his mind that such a sentence would not be imposed beforehaving heard submissions from the appellant or her counsel. [6] The rejection of the anticipated submission on sentencing before it is made demonstrates two errors ofprinciple: violation of the right to be heard and violation of the right to an unbiased decision-maker. The failure of the Provincial Courtjudge to hear the appellant before pronouncing upon a request for a conditional sentence is self-evident.

Unfortunately, the subsequentexchange between the judge and the appellant, which is partly set out in paragraph 12 below, not only failed to remedy the first violationbut constitutes proof of the second. [7] With respect to bias, I would note that it can come in many forms. It need not be demonstrated against anindividual because of his or her personal attributes, circumstance in life or previous interactions between the judge and the accused. Ajudge can demonstrate actual bias or create a reasonable apprehension of bias because of his or her personal beliefs on the issue to bedetermined.

In Newfoundland Telephone Company v. Newfoundland (Board of Commissioners of Public Utilities), (SCC), [1992] 1 S.C.R. 623, [1992] S.C.J. No. 21 (QL), the appellant contended one of the board members was biased with respect to arate hearing application. The board member made statements, while the hearing was in progress, about the very subject matter he wasbeing called upon to address. For example, he said there was “no justification whatsoever to expect the consumers of telephone services[…] to be paying the full cost of salary levels” and “[…] there is a significant level of overcompensation […]”.

Cory J., delivering thejudgment of the Court, stated:

These statements, taken together, give a clear indication that not only was there a reasonable apprehension of bias but that Mr. Wells haddemonstrated that he had a closed mind on the subject. [para. 38] [8] I am of the view the Provincial Court judge demonstrated a closed mind on the subject of a conditionalsentence before having heard from the appellant. He thereby demonstrated actual bias against the interests of the appellant. [9] In the event the Provincial Court judge’s conduct did not demonstrate actual bias, I am of the view it, at aminimum, demonstrated a reasonable apprehension of bias. In R. v.

Curragh Inc., (SCC), [1997] 1 S.C.R. 537, [1997]S.C.J. No. 33 (QL), the trial judge in a manslaughter case, which flowed from the death of 26 miners in Nova Scotia, made a phone callto the Acting Director of Public Prosecutions to express his displeasure with the conduct of the Crown prosecutor. During thatconversation, the trial judge requested the removal of the prosecutor. In the event the Acting Director failed to act on therecommendation for removal, the trial judge threatened to take steps “to secure that end”. The Crown brought a motion for recusal,which was denied.

Thereafter, the trial judge imposed a stay of proceedings. The Nova Scotia Court of Appeal ordered a new trial. TheSupreme Court dismissed the appeal. In delivering the majority judgment, La Forest and Cory JJ. stated: The right to a trial before an impartial judge is of fundamental importance to our system of justice. Should it be concluded by anappellate court that the words or actions of a trial judge have exhibited bias or demonstrated a reasonable apprehension of bias then abasic right has been breached and the exhibited bias renders the trial unfair.

Generally, the decision reached and the orders made in thecourse of a trial that is found by a court of appeal to be unfair as a result of bias are void and unenforceable. […] […] when a court of appeal determines that the trial judge was biased or demonstrated a reasonable apprehension of bias, that findingretroactively renders all the decisions and orders made during the trial void and without effect. [paras. 7-8] [10] The test to be applied in determining whether a decision-maker’s conduct or words demonstrate a reasonableapprehension of bias is whether an informed person, viewing the matter realistically and practically, and having thought the matterthrough, would conclude that consciously or unconsciously, the decision-maker would be motivated by a bias: Committee for Justice andLiberty v.

National Energy Board, (SCC), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118 (QL) at 394. In deciding a motionfor his recusal in Arsenault-Cameron v. Prince Edward Island, (SCC), [1999] 3 S.C.R. 851, [1999] S.C.J. No. 75(QL), Bastarache J. opined that in an application for recusal based upon bias or reasonable apprehension of bias, the applicant mustdemonstrate wrongful or inappropriate declarations showing a state of mind that “sways judgment” (para. 5).

I am satisfied that theProvincial Court judge’s opinions regarding conditional sentences as expressed by him to the Crown prosecutor, his rejection of aconditional sentence before having heard from the appellant and his manner of questioning the appellant all demonstrate a reasonableapprehension of bias, if not actual bias, regarding the very issue raised by the appellant – whether a conditional sentence would beappropriate in the circumstances. [11] I would add there is a certain irony to the Provincial Court judge’s observations regarding conditionalsentences.

On January 8, 2011, a mere 9 days after declaring his contempt for that particular sentencing tool, the same Provincial Courtjudge, in the case of R. v. Troy Francis Polchies (unreported, January 7, 2011) granted the accused a conditional sentence. In that case,the accused had a lengthy criminal record which included seven previous conditional sentences and breaches of two of them. B.

Errors of law – irrelevant considerations [12] In the course of his exchange with the appellant, the Provincial Court judge erred in law when he took intoconsideration a factor which was irrelevant to the determination of whether a conditional sentence might be an appropriate sentencingtool. Consider the following exchange between the judge and the appellant:

THE COURT: You live in a rented home? MS. [Y]: Yes. THE COURT: On the other side of the Princess Margaret Bridge? MS. [Y]: Yes. THE COURT: That’s what you testified to at the show cause hearing? MS. [Y]: Yes. Yes. THE COURT: You live with a common-law spouse who – MS. [Y]: Yes. THE COURT: - I believe you said was a taxi driver? MS. [Y]: Yes. THE COURT: Well, how am I going to order house arrest? Is he going to become your jailer? Who are you going to get out to look after your grandchildren if I order house arrest? MS. [Y]: They can come to me as long as I can take care of them for my daughter.

THE COURT: So they will be the jailers, will they, the sixteen month old child? [ 13 ] While information such as one’s marital status and residency is sometimes provided to probation officers who prepare pre-sentence reports, it is rare that such information is extracted through cross-examination by a trial judge, as occurred in this case. Without knowing the extent to which the Provincial Court judge used that information to craft a sentence for the appellant, I am not prepared to conclude he erred in law by seeking it out. However, his quest for a jailor is egregious.

The Provincial Court judge erred when he concluded that the identification of a jailer is a condition precedent to the imposition of a conditional sentence. This observation is elementary law within the knowledge of any student of criminal law. In this regard, I find the comments of Drapeau C.J.N.B. in R. v. Gallant , 2010 NBCA 37 , 359 N.B.R. (2d) 196 , to be instructive: [I]n deciding matters brought before them, judges must base their rulings on applicable legislation and principles of law. Any decision that is capricious and/or arbitrary is precluded. [para. 1]

III. Facts [ 14 ] Having concluded the Provincial Court judge erred in principle and in law in reaching his sentencing decision, it is open to this Court, pursuant to s. 687 of the Code, to consider the fitness of the sentence and impose the sentence it considers fit in the circumstances.

I will now summarize the uncontested facts as outlined by the appellant to the sentencing judge. [ 15 ] On December 23, 2010, while shopping for groceries for the upcoming Christmas holiday season, the appellant met a male acquaintance who informed her that her 15 year old daughter was staying at a residence owned by N.C., in downtown Fredericton. N.C. was not unfamiliar to the appellant. The appellant testified at the show cause hearing that she had known N.C. for some time. The appellant knew that N.C. operated an escort service from the downtown location, operating under the name Heaven Sent Escort Service.

The appellant informed the Provincial Court judge that N.C. lives in Moncton and is normally in Fredericton when the “girls” are working. The appellant had previously told N.C., a lady in her mid-thirties, to stay away from her daughter. Needless to say, the appellant was not pleased to learn that her daughter was residing at the escort service location. The appellant immediately stopped shopping and went directly to the escort service business. [ 16 ] When F.Y. arrived at the residence, she knocked loudly on the door. No one answered.

As she was leaving, she saw the silhouette of a female person, whom she believed to be her daughter, through a window of the residence. She then went to the door, broke in and started looking for her daughter. The residence was equipped with video cameras in the bedrooms and the hallways. The appellant believed the cameras were operational. She disabled two of them and damaged an inside door, hence the mischief charge, as she continued to search for her daughter.

In the meantime, K.S., a friend of the appellant’s daughter who was also at the residence, called the police. [ 17 ] The police found the appellant hiding in one of the bedrooms, arrested her and charged her with the offence to which she pled guilty. The appellant’s daughter was also found in the house. The appellant admits she did not call the authorities, police or otherwise, to advise of her concern for her daughter’s safety. She admits to having taken the law into her own hands. N.C. was afforded the opportunity to provide a victim impact statement to the Court but declined to do so.

The damage to the property was minimal. The Crown did not contest any part of the appellant’s version of events, including the allegation that the downtown location where her minor daughter was found operates as an escort service. IV. The appropriate sentence [ 18 ] In crafting an appropriate sentence, this Court must take into consideration the factors found in

Part XXIII of the Code .

Section 718 sets out the purposes of sentencing:

Purpose 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. Objectif 718. Le prononcé des peines a pour objectif essentiel de contribuer, parallèlement à d’autres initiatives de prévention du crime, au respect de la loi et au maintien d’une société juste, paisible et sûre par l’infliction de sanctions justes visant un ou plusieurs des objectifs suivants :

a) dénoncer le comportement illégal;

b) dissuader les délinquants, et quiconque, de commettre des infractions;

c) isoler, au besoin, les délinquants du reste de la société;

d) favoriser la réinsertion sociale des délinquants;

e) assurer la réparation des torts causés aux victimes ou à la collectivité;

f) susciter la conscience de leurs responsabilités chez les délinquants, notamment par la reconnaissance du tort qu’ils ont causé aux victimes et à la collectivité. [ 19 ] If any break and enter can be considered on the “low end” of the scale, this is it. I would note the appellant initially knocked on the door in order to provide announcement of her arrival and to request entry. Furthermore, there was nothing clandestine about her eventual entry. She did not enter the home with any intent to steal, cause damage or assault anyone. Her intentions appeared to be noble.

She was in the course of protecting her minor daughter from danger. The appellant was unchallenged in her assertion that the residence was home to an escort service owned and operated by N.C. Although there was no evidence the appellant’s daughter was engaged in any such activities, I would note s. 150.1 of the Code provides that, subject to very limited exceptions, one cannot consent to sexual activity if under the age of 16 years and ss. 172 and 172.1 create the offences of corrupting and luring children who are under 18 years of age.

I would also note that ss. 210 and 212 deal with living off the avails of prostitution and enticing others to engage in prostitution. [ 20 ] The offence to which the appellant pled guilty is not one contemplated by s. 718.01 or 718.02, which requires the court give primary consideration to denunciation and deterrence. Furthermore, this is not an offence to which any of the enumerated aggravating circumstances set out in s. 718.2(a)(

i) to (

v) apply. Finally, I would eliminate from consideration the application of s. 718.2(

b) and (

c) for the following reasons. With respect to s. 718.2(b), the Crown offered no submissions to this Court or to the Court below with respect to sentences imposed on similar offenders for similar offences committed in similar circumstances. I would expect there is good reason for the Crown’s inability to refer to any offences committed in similar circumstances. There are no doubt very few cases in which an accused announces his or her arrival before committing a break and enter, commits such minor damage in the course of the offence and conducts the offence with the intention of saving a child from danger.

With respect to s. 718.2(c), this case does not raise the issue of consecutive sentences.

[ 21 ] Having eliminated the above referenced provisions from consideration, this Court is left with the following general propositions: • The penalty must be proportionate to the gravity of the offence and the appellant’s degree of responsibility (s. 718.1); • The penalty should be increased or reduced to account for relevant aggravating or mitigating circumstances (s.718.2(a)); • The appellant should not be deprived of her liberty if less restrictive sanctions may be appropriate in the circumstances (s. 718.2(d)); and • All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for the appellant (s. 718.2(e)). [ 22 ] An invitation to consider the gravity of the offence is a call to consider the offence committed by the appellant from both a general and a specific perspective.

From a general perspective, the offence of break and enter into a dwelling is a serious one. It is one of the most serious property crimes identified by Parliament. This is reflected in the maximum potential punishment of life imprisonment. However, it does remain a property crime and is much less serious than murder, manslaughter, treason, robbery with violence and certain other offences.

I have already expressed my view that in these specific circumstances, this break and enter is no doubt one of the least serious the courts will be called upon to adjudicate. [ 23 ] I now turn to aggravating and mitigating factors. The fact the appellant pled guilty at the first opportunity is clearly a mitigating factor. Her guilty plea and the remorse expressed in conjunction with that plea were clearly genuine. Furthermore, I consider the fact she was in the course of protecting her daughter to be a mitigating factor. There are, unfortunately, two aggravating factors that must be taken into consideration.

The first is the appellant’s criminal record. For a time she suffered from an addiction which led her into a life of serious crime. Her criminal record includes fraud, forging documents, robbery with violence, kidnapping and breach of court orders, including a conditional sentence order in 2006. Fortunately for her, other than the matter presently on appeal, she has not been in conflict with the law since 2007.

The second aggravating factor is the fact that the appellant did not call the police to advise that she believed her minor daughter was in danger. [ 24 ] In the circumstances of this case, I am satisfied the objectives of specific and general deterrence as well as denunciation would have been met by the imposition of a conditional sentence, but for the appellant’s prior criminal record. In the circumstances, I would vary the sentence by imposing a term of incarceration of 6 months less credit for time served multiplied by 1.5.

I would not alter the probation order other than the obvious changes to its start date and end date. [ 25 ] It is for these reasons I agreed to allow the application for leave to appeal sentence, allow the appeal and vary the sentence as set out above. ______________________________ B. RICHARD BELL, J.A. WE CONCUR: _______________________________ KATHLEEN A. QUIGG, J.A.

_______________________________ BRADLEY V. GREEN, J.A.