R. v. McCarthy, 2016 NLCA 49

Angela McCarthy (appellant) v. Her Majesty the Queen (respondent) (15/21) Indexed As: R. v. McCarthy 2016 NLCA 49 1 C.A.N.L.R. 58 Court of Appeal of Newfoundland and Labrador Welsh, Harrington and Hoegg JJ.A. September 27, 2016

Summary: Ms. McCarthy was charged with obstruction of justice contrary to s. 139(2) of the Criminal Code , for warning her cousin he was being investigated by police, having obtained the information through her employment with the Royal Newfoundland Constabulary. She pleaded guilty. During sentencing, the judge emphasized denunciation and deterrence, noting the serious nature of the offence and imposed a nine month sentence of imprisonment. Ms. McCarthy appealed, arguing the judge erred in not imposing a conditional sentence order.

Leave to appeal was granted at the conclusion of an unsuccessful conviction appeal. Held: Appeal allowed, sentence varied to a 9 month conditional sentence order. Welsh J.A. (Harrington and Hoegg JJ.A. concurring): The relevant sentencing principles were recently outlined by the Supreme Court of Canada in R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089. In addition to the principles discussed in Lacasse , this appeal engages the purpose and effect of a conditional sentence order.

In this case, the sentencing judge erred in over-emphasizing denunciation and deterrence for a first time offender, who had no criminal record, pleaded guilty, accepted responsibility for her actions, was clearly remorseful, and apologized to the court and the community. Interfering with a police investigation is serious, but there was no indication that a particular example needed to be made of Ms. McCarthy in order to deter others. Finally, the sentencing judge misapprehended the nature of a conditional sentencing order, which has a punitive as well as rehabilitative aspect. Cases cited: R. v.

Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089 R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61 R. v. Webster , 2014 NLTD(G) 135 R. v. Carroll , 2002 NFCA 1, 207 Nfld. & P.E.I.R. 317 Counsel: Keir O’Flaherty, for the appellant; Vikas Khaladkar, for the respondent. This appeal was heard on September 23, 2016 before Welsh, Harrington and Hoegg JJ.A. and the decision was rendered orally on that date.

The following written reasons for decision were filed on September 27, 2016 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] Angela McCarthy pleaded guilty to and was convicted of a charge of obstruction of justice contrary to section 139(2) of the Criminal Code . She was sentenced to nine months imprisonment. On appeal she was unsuccessful in having her guilty plea and conviction set aside, but was granted leave to proceed with the appeal as to sentence. At issue in that appeal is whether the trial judge erred by refusing to order that the nine-month sentence be served conditionally pursuant to

section 742.1 of the Criminal Code . [ 2 ] At the hearing, the appeal was allowed. Counsel was asked to provide submissions on appropriate conditions to be included in the sentencing order. Following are the reasons for the decision allowing the appeal. BACKGROUND [ 3 ] Ms. McCarthy was charged with obstruction of justice after she warned a cousin that he was being investigated by the police. In her position as a clerical employee at the police detachment, by chance, she had seen her cousin’s picture displayed on a wall in the drug section.

The circumstances are summarized in the earlier decision of this Court affirming the conviction ( 2016 NLCA 33 ): [2] Ms. McCarthy was employed in a civilian clerical position with the Corner Brook detachment of the Royal Newfoundland Constabulary (the “RNC”) for approximately six years. On April 7, 2014, she was called into an interview room at the detachment by her supervisor, Sergeant Buckle. The interview was conducted in the presence of Constable Sharpe and was videotaped. The transcript of the interview clearly indicates that Ms.

McCarthy was advised that the interview was about a criminal investigation in relation to the release of information regarding an on-going police investigation. She was advised of the basic facts alleged against her. Sergeant Buckle told her: Let me explain what your jeopardy is. Jeopardy is you could potentially be charged with obstruction of justice and breach of trust. This statement was immediately followed, before Ms. McCarthy had an opportunity to say anything, with her Charter rights and cautions; that is, the right to remain silent and to contact a lawyer, which she indicated she understood.

She was advised about the availability of legal aid and how to apply. [3] Ms. McCarthy agreed to proceed with the interview, choosing not to contact a lawyer. She was advised that she could change her mind at any time in order to exercise her right to seek the assistance of counsel. During the interview, she admitted that she had told her cousin that his photograph had been posted on a wall in the drug

section of the detachment and that he should “watch it”. On cross- examination on her affidavit in this Court, Ms. McCarthy admitted that she was giving her cousin a warning about a police investigation. [ 4 ] After the interview, Ms. McCarthy’s employment was suspended and she was escorted from the building.

On April 10, 2014, she was served with a summons to appear in court respecting a charge that she “did wilfully attempt to obstruct, or pervert or defeat the course of justice in a judicial proceeding by knowingly releas[ing] information pertaining to [the] identity of targets in a drug investigation, contrary to section 139(2) of the Criminal Code .” … [4] In the sentencing decision, the trial judge emphasized the serious nature of the charge. While concluding that the requirements for a conditional sentence had been satisfied, the judge refused Ms.

McCarthy’s request that she serve her sentence in the community ( (2015), 364 Nfld. & P.E.I.R. 75 ): [85] In this case, I am satisfied that Ms. McCarthy would comply with the conditions contained within any conditional sentence order imposed. The difficulty here is that the offence committed by Ms. McCarthy is so serious that a conditional sentence will not achieve the denunciatory effect required. It would not be a proportionate sentence in the sense that it would not reflect Ms. McCarthy’s moral blameworthiness and her responsibility for the offence. [ 5 ] Ms.

McCarthy submits that the trial judge erred by over-emphasizing denunciation and general deterrence to the exclusion of other principles of sentencing and by mischaracterizing the seriousness of the offence. She does not challenge the length of the sentence. Her appeal is limited to the judge’s refusal to order that the sentence be served in the community pursuant to

section 742.1 of the Criminal Code . ANALYSIS The Law [ 6 ] Section 139(2) of the Criminal Code provides for the offence: Every one who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

[7] In considering Ms. McCarthy’s appeal as to her sentence, I begin with R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, inwhich Wagner J., for the majority, discussed the circumstances when appellate intervention is appropriate: [43] … I agree that an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating ormitigating factor can justify the intervention of an appellate court and permit that court to inquire into the fitness of the sentence andreplace it with the sentence it considers appropriate.

However, in my opinion, every such error will not necessarily justify appellateintervention regardless of its impact on the trial judge’s reasoning. … [44] In my view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating ormitigating factor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impacton the sentence. … [49] For the same reasons, an appellate court may not intervene simply because it would have weighed the relevant factors differently. In Nasogaluak, LeBel J. referred to R. v.

McKnight (1999), (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35, inthis regard: … To maintain deference to the trial judge’s exercise of discretion, the weighing or balancing of relevant factors must be assessedagainst the reasonableness standard of review.

Only if by emphasizing one factor or by not giving enough weight to another, the trialjudge exercises his or her discretion unreasonably should an appellate court interfere with the sentence on the ground the trial judgeerred in principle. [para. 46] (Emphasis added.) [8] Wagner J. also addressed the importance of proportionality as a principle of sentencing: [53] This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, whichprovides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”.

Asentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality isdetermined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, andby comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity ofsentences must be reconciled for a sentence to be proportionate: s. 718.2(

a) and (

b) of the Criminal Code. [9] The relevance of sentencing ranges was also discussed by Wagner J.: [57] … Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all theprinciples and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentencesimposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives.

However,they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use ofsentencing judges, who must still exercise their discretion in each case …. [10] In addition to the principles of sentencing discussed in Lacasse, this appeal engages a consideration of the purpose and effect of aconditional sentence imposed under

section 742.1 of the Criminal Code. A helpful

summary is provided by Lamer C.J.C., for the Court,in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. The following principles are relevant for this appeal: [127] At this point, a short

summary of what has been said in these reasons might be useful: 1. Bill C-41 in general and the conditional sentence in particular were enacted both to reduce reliance on incarceration as a sanction andto increase the use of principles of restorative justice in sentencing. 2. A conditional sentence should be distinguished from probationary measures. Probation is primarily a rehabilitative sentencing tool. By contrast, Parliament intended conditional sentences to include both punitive and rehabilitative aspects.

Therefore, conditionalsentences should generally include punitive conditions that are restrictive of the offender’s liberty. Conditions such as house arrestshould be the norm, not the exception. … 7. Once the prerequisites of s. 742.1 are satisfied, the judge should give serious consideration to the possibility of a conditional sentencein all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set outin ss. 718 to 718.2. This follows from Parliament’s clear message to the judiciary to reduce the use of incarceration as a sanction. 8.

A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, thelonger and more onerous the conditional sentence should be. There may be some circumstances, however, where the need fordenunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society’s condemnation ofthe offender’s conduct or to deter similar conduct in the future. … 10. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be moreappropriate than incarceration.

Where objectives such as denunciation and deterrence are particularly pressing, incarceration willgenerally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved. However, theconditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesserimportance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender

and the community in which the conditional sentence is to be served. … [ 11 ] Finally, I note that Parliament has identified offences where a conditional sentence is deemed not to be appropriate and is, therefore, not available. Section 139(2) is not one of those provisions. Accordingly, the general principles set out in Proulx are engaged.

Application of the Law [ 12 ] Applying the above principles to this appeal leads to the conclusion that the trial judge erred by over-emphasizing the principles of denunciation and general deterrence to the exclusion of other relevant factors, and that this error had an impact on the sentence. In particular, Ms. McCarthy had no criminal record, she pleaded guilty, accepted responsibility for her actions, was clearly remorseful, and apologized to the court and the community. In warning her cousin that he was under investigation, Ms. McCarthy was not acting in her own self-interest.

Her conduct may be distinguished from cases relied on by the trial judge, such as R. v. Webster , 2014 NLTD(G) 135, where a wildlife officer committed perjury and fabricated evidence, or where the accused attempted to intimidate a witness ( R. v.

Carroll , 2002 NFCA 1 , 207 Nfld. & P.E.I.R. 317 ). [ 13 ] While interfering with a police investigation is a serious matter, there is no indication that there is a particular concern that would require an example to be made to deter other civilian employees from acting so as to obstruct justice or in a manner contrary to their oath of confidentiality. [ 14 ] Finally, the trial judge appears to have misapprehended the purpose and effect of a conditional sentence as discussed in Proulx . A conditional sentence has a punitive as well as a rehabilitative aspect. The judge concluded that Ms.

McCarthy had satisfied the prerequisites for a conditional sentence. He erred by failing to give serious consideration to the possibility of a conditional sentence that would be consistent with the fundamental purpose and all the principles of sentencing set out in ss. 718 to 718.2 . By emphasizing denunciation and general deterrence to the exclusion of other factors, the trial judge exercised his discretion unreasonably.

SUMMARY AND DISPOSITION [ 15 ] In the result, the Court allowed the appeal. In accordance with section 687(1) (

a) of the Criminal Code , the Court imposed a sentence of nine months to be served conditionally pursuant to

section 742.1 . The sentence will commence upon issuance of the order which will be made when the conditions attaching to the sentence have been approved. Appeal allowed.