2021 QCCA 1395, 2021 QCCA 1395

Obodzinski c. R. 2021 QCCA 1395 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007038-191 (500-01-120963-159 - SEQ 001) DATE: September 22, 2021 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. GENEVIÈVE MARCOTTE, J.A. GUY COURNOYER, J.A. ANITA OBODZINSKI APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] The Appellant appeals from a judgment rendered on March 21, 2019 [1] by the Court of Québec, Criminal and Penal Division, District of Montreal (the Honourable Dennis Galiatsatos), which, following two breaches of a conditional sentence order ( s. 742.6(9) Cr.C . ), suspended the conditional sentence order and directed that a portion of six months be served in custody. [ 2 ] The appeal raises the question of whether the trial judge erred in departing from the joint submission.

It also requires, if need be, that the Court determine whether the judge imposed a disproportionate sanction for the breaches at issue. [ 3 ] The appeal should be allowed for the following reasons. I - BACKGROUND [ 4 ] On January 9, 2018, following the Appellant’s guilty plea on charges of obstruction of justice, mischief, forgery-related offences and unlawful presence in a dwelling-house with intent to commit an indictable offence , Justice Pierre E.

Labelle of the Court of Québec ordered that she serve a conditional sentence of imprisonment of two years less a day in the community, followed by a three-year probation order. [ 5 ] The sentence imposed on January 9, 2018 was the result of negotiations held between the Crown and defense counsel. The parties agreed to recommend a particular sentence to the judge, in exchange for the Appellant entering a guilty plea. [ 6 ] The facts underlying the guilty plea were as follows. In March 2013, the Appellant fabricated in her favour a false mandate in anticipation of incapacity of an 89-year-old woman.

The mandate was homologated by the Superior Court in December 2013. In January 2014, the Appellant siphoned out the entirety of the elderly woman’s bank savings (totalling $474,000). The following month, the Appellant and her husband broke into the victim’s home to search it and take pictures. These pictures were then used by the Appellant to fraudulently obtain a court order to forcibly remove the victim from her home. The victim died in December 2016 during the preliminary inquiry in the criminal proceedings against the Appellant.

Prior to her death, the victim was declared competent and was able to recover her money after the Superior Court found that the incapacity mandate had been falsified. [ 7 ] At the time of her guilty plea, the Appellant was 53 years old, married and had a 14-year-old daughter. She had no prior criminal record. She holds a bachelor’s degree in finance and economics. She worked in the finance sector for some time before becoming a real estate agent in Ontario in 1996. In 2000, she returned to Montreal and worked as a real estate consultant until her sentencing.

Her husband also pleaded guilty to mischief and unlawful presence in a dwelling-house with intent to commit an indictable offence. He received a conditional discharge. [ 8 ] As previously mentioned, Labelle, J. accepted the joint submission of the parties at the sentencing hearing. The conditions imposed in the conditional sentence order (“CSO”) included: - House arrest 24 hours/day for the first 12 months of the CSO (subject to listed exceptions); - A curfew from 10:00pm to 6:00am for the last 12 months of the CSO (subject to listed exceptions); and

- An obligation to answer all phone calls made to her residence by Correctional Services staff, in addition to having a ground line and ensuring that it is operational and available at all times. Moreover, she was prohibited from enlisting a call forwarding service for said phone line. [ 9 ] On November 12, 2018, an arrest warrant was issued for the Appellant for the alleged breach of her CSO.

The arrest warrant suspended the CSO (s. 742.6(10) Cr.C . ) under which 57 days of house arrest remained to be served and which would have been completed on January 8, 2019. [ 10 ] Pursuant to s. 742.6 Cr.C . , the Crown applied for a hearing for breach of the CSO in two respects: - Failure to comply with the house arrest conditions; and - Failure to comply with the obligation to answer all phone calls made to her residence by Correctional Services staff. [ 11 ] Due to Justice Labelle’s unavailability, the breach hearing was conducted by Galiatsatos, J. on January 14, 2019. [ 12 ] After hearing evidence from the Crown and the Appellant, he concluded that the Appellant had breached two conditions of the CSO without reasonable excuse. [ 13 ] The trial judge concluded that the Appellant had missed four spot-check phone calls made to her home on two different occasions: [22] On July 28th 2018 at 11:38pm, a correctional officer made a spot-check phone call to the offender.

The phone rang for a long time until it went to the answering machine. [23] During the hearing, it was not challenged that the officer called the right phone number. [24] Just past midnight, at 00:01am on July 29th 2018, the same officer called back.

Once again, the phone rang for a long time before going to the answering machine. [25] On the following day, July 30th 2018, the supervisor physically met with the offender and informed her of the missed phone calls, stressing the importance of answering the phone, as required by the CSO. [26] Nevertheless, on September 2nd 2018, at 00:54am, a correctional officer conducted another telephone spot-check.

The phone was never answered by the offender, even after ringing 6 times. [27] A few minutes later, at 1:14am, another call was unanswered after ringing 6 times. [2] [ 14 ] Another hearing was held on March 12, 2019 in order to determine which of the several dispositions the court should make under s. 742.6

(9) Cr.C . [ 15 ] At the hearing, the Appellant and her husband testified about their family situation, especially since the CSO. [ 16 ] The Appellant explained that her daughter would be greatly affected if she were to be incarcerated. Her daughter had never taken public transportation and the Appellant drove her to school and back every day. Every Saturday, she took her daughter to horseback riding lessons, a “therapy” meant to help her cope with the bullying at school that followed her parents’ arrest.

As to the family’s financial situation, the Appellant claimed to be the family’s sole provider, by still performing some real estate consultancy work, a job that does not guarantee her any fixed income, forcing her to rely on her late mother’s inheritance in order to cover the family’s expenses. [ 17 ] The Appellant’s husband, Mr. Trzciakowski, explained that, despite holding a driver’s license, he was unable to drive his daughter to school because of back pain. He confirmed that the Appellant is the family’s only source of income. Mr.

Trzciakowski has not held a job since his guilty plea and does not receive social assistance from the government.

He added that his mother had a stroke in 2013 and that he visits her multiple times during the week in order to take care of her and keep her company. [ 18 ] The following evidence was also presented at the sanction hearing: [3] [67] Filed as exhibit S-4, the offender produced a letter from a probation officer confirming that she has not breached her CSO since the issuance of the arrest warrant in November of 2018. [68] As exhibit S-5, the offender produced a letter from the Director of the Mechta Learning Centre, much like the previous letter filed as exhibit D-1 at trial, underlining the offender’s dedication at the centre. [69] Finally, as exhibit S-6, the offender produced a pamphlet from the yearly Mechta Centre fundraiser, that lists her and her husband as volunteers and donors to the event.

She specifies that they did not donate money, but instead, they donated valuable bottles of wine that were sold at auction for a lot of money. [ 19 ] While the Appellant was testifying, Crown counsel interrupted the hearing and asked the judge for a brief recess in order to have a discussion with defense counsel. [ 20 ] Upon their return from recess, the parties announced to the judge that they had reached an agreement on a joint submission regarding the breach offences. [ 21 ] They suggested that the judge add four months of house arrest; modify the CSO in order to replace the Friday afternoon leave authorization with a Saturday leave from 9:30 am to 6:30 pm; and add an exemption to the house-arrest order that would allow the Appellant to drive her daughter to school and back every day.

[ 22 ] Having heard the joint submission, the judge informed the parties of his serious reservations regarding same, stating that he was “extremely troubled, perturbed and shaken” by it. He asked that the parties explain how the proposed sentence would not bring the administration of justice into disrepute or otherwise be contrary to the public interest.

He also asked that they disclose any benefits obtained by the Crown or concessions made by defense counsel. [ 23 ] Besides expressing these general concerns, he did not identify any specific concerns he may have had or any specific issues he may have considered. [ 24 ] Counsel for the Crown informed the judge that incarceration would not be appropriate for two reasons. First, the Appellant had complied with all the conditions since her arrest for the breaches in November 2018 and she had already finished her mandated community service hours.

Second, the breaches in questions did not represent the commission of a further offence or endanger the community. In that sense, the Crown argued that the presumption set out in R. v. Proulx [4] was more readily rebutted here. [ 25 ] On March 21, 2019, the judge partially revoked the CSO.

He ordered that the Appellant serve in custody six months of imprisonment as of that day and that the CSO resume on her release from custody, without changes to the optional conditions. [5] [ 26 ] On April 2, 2019, the Appellant filed a motion for leave to appeal from a sentence and a motion for suspension of the sentence and for release from prison. [ 27 ] On April 4, 2019, leave to appeal was granted by Roy, J.A. and the Appellant was released from custody on the following conditions: [6] 1. Keep the peace, be of good behaviour and attend Court whenever required; 2. Reside at […], St-Léonard, Québec, […]; 3.

Be at the address indicated in the preceding paragraph 24 hours on 24, 7 days over 7 except for: a. For a legitimate and remunerated work to go to and directly return; b. For medical purposes for her/herself and immediate family; c. On Friday between 3:30 p.m. and 7:70 p.m. to provide for her feeding and essential needs; d. To practice a religious cult; e. To meet with her attorney for her ongoing civil files and the present appeal; f. Attend court when required for her pending civil files and the present appeal; g.

To bring her daughter Anita Trzciakowski directly to school in the morning, between 7:15 a.m. and 9:00 a.m. and to bring her back directly home, in the afternoon, between 3:00 p.m. and 5:00 p.m.; 4. Not to change her address before and without having obtained permission of this Court or one of its judges; 5. Remain in the province of Québec, unless permission obtained from the Court or one of its judges; 6.

Abstain from having in her possession any banking document whatsoever including a credit card, automated teller card, cheque or bank draft not made out to or in her name except with regards of an RESP in the name of Anita Trzciakowski; 7. Not to act as mandatory for anyone except with regards of an RESP in the name of Anita Trzciakowski; 8. Constitute herself prisoner to the prison authorities as soon as her appeal would be dismissed or before any time limit determinated by the Court or one of its judges.

II - JUDGMENT UNDER APPEAL [ 28 ] In his decision, the judge concluded that the joint submission of the parties must be set aside, and that the Appellant should spend a portion of the remaining CSO in custody. The judge first opined that the principles set out in R. v. Anthony-Cook regarding joint submissions on sentencing were not binding here since the joint submission had not been agreed to in exchange for a recognition of the breach by the Appellant.

Nevertheless, he chose to apply the procedure and test set out in Anthony-Cook in the event he were wrong. [ 29 ] He took the view that the parties’ recommendation “flies in the face of the administration of justice and instead seems to reward CSO breaches”. [7] Specifically, he stated that “in the circumstances of this case, to suggest that adding 2.5 months of house arrest is a sufficient sanction would certainly be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system and would deplete any confidence in the conditional sentence system”. [8] [ 30 ] Upon review of the applicable law in light of the facts before him, the judge concluded that in crafting the sanction to be imposed, he ought to consider the seriousness of the original offences as well as the seriousness of the breaches of the CSO.

First, he concluded that the facts surrounding the original offences weighed in favour of a firm sanction: [9] [178] In determining the fit sanction in the circumstances of this case, I consider the seriousness of the original offences. The offender broke into an elderly victim’s home and falsified documents in order to essentially take control of her finances. With the help of her

husband, a doctor, a social worker and an attorney, the offender forged documents in order to appoint herself the victim’s legal guardian as to property. She then siphoned the victim’s life savings, in the amount of almost 475 000$. The victim, almost 90 years old, was forced out of her home by a fraudulently obtained court order. [179] Adding a level of repugnance to the scheme, by obstructing justice, the offender made the civil Court an unwitting partner to her despicable crimes.

That particular offence strikes at the very heart of our institutions, which are meant to dispense justice in our democratic society, not to crush the lives of the elderly. [180] By the time the matter came to trial, the victim had died. It is heart wrenching to think of the agony suffered by the victim in the final years of her life, all due to the ruthless selfishness of the offender.

The victim was helpless and vulnerable and the offender took advantage of her state in the most predatory and parasitic fashion. [181] When considering the impact of conditional sentences on public confidence in the administration of justice, it is understandable that many members of the community would likely question why a person convicted of such a serious predatory fraud would not be incarcerated in an institution. [182] The seriousness of the original offences therefore weighs heavily in the balance in order to preserve the credibility of the CSO regime. [ 31 ] Second, he analyzed the circumstances of the CSO breaches.

He found these breaches to be very serious and denounced the fact that the Appellant had ignored the supervising officer’s warning after the missed July calls. He added: [10] [188] The Court also considers that the breaches were committed at the early stages of the CSO. The first calls were missed at the 7- month-mark of a 2-year conditional sentence. This heightens the seriousness of the breaches. [189] With respect to the 5th factor in R. v.

Langley , I must assess the effect of a partial revocation on the appropriateness of the sentence for the original offence; in other words, I must ensure that the revocation does not render the original sentence excessive. There is clearly no danger of that occurring in the case at bar. As mentioned above, the original sentence was extremely lenient and far below what would normally be warranted. But for the joint submission of the parties, in my view, a federal sentence surpassing 2 years would have been appropriate.

As such, there was no “upward adjustment” of the quantum due to the fact that the sentence would be served in the community. [ 32 ] The judge then addressed the factors weighing in favour of leniency as well as the testimony of the Appellant and her husband. He found both not to be credible witnesses. He further stated that the Appellant had lied and misled the Court. Moreover, he was of the view that the Appellant had shown no remorse. However, he did favourably consider the fact that the Appellant had served all of her community service hours and continued to volunteer there.

However, he considered that she should not receive too much credit for this work, because, prior to her sentence, she was already involved with the organization where she performed the community service. [ 33 ] Finally, he concluded that the Appellant’s incarceration would not deprive her daughter of parental support as he considered that her father would be able to drive her to school. III - ISSUES [ 34 ] The appellant’s grounds of appeal are set out in her motion for leave to appeal: (

a) The trial judge did not defer to the common suggestion of the Crown and the Defense attorney with respect to the appropriate sanction and erroneously considered that this common recommendation would bring the justice system into disrepute or would be against public interest; (

b) He made a mistake by stating that the common recommendation was more lenient than the CSO imposed by Labelle J. (paragraph 76 of the judgment,

schedule 1); (

c) He placed too much emphasis on the original offences, as is evident by subparagraphs 3(b), (

c) and (

d) of his judgment; (

d) The sanction is disproportionate to the breaches, i.e. two missed phone calls (late at night) on two (2) different dates and even though the judgment is detailed, the judge of first instance did not justify his sanction of 6 months of imprisonment as opposed to another sanction; (

e) He underestimated the fact that the Appellant finished her community work ahead of time, continued to do community work even if she is not obliged and produced a letter from the probation officer confirming that she has not breached her CSO since November of 2018; (

f) He erroneously underestimated the consequences of a jail sentence for that breach on the adolescent daughter of the Appellant. [ 35 ] These grounds can be summarized as follows: (1) the trial judge erred in failing to give effect to the parties' agreement on the sanction according to the principles in R. v. Anthony- Cook ; [11] and (2) the trial judge gave disproportionate weight to the gravity of the original offences. IV - POSITIONS OF THE PARTIES

A - Appellant [ 36 ] First, the Appellant argues that the judge erred in dismissing the parties’ joint submission.

She contends that the judge’s reasons do not offer an explanation as to why the recommended sentence was unacceptable. [ 37 ] Second, she asserts that the judgment is unduly focused on the gravity of the original offences and does not properly assess the nature and the gravity of the CSO breaches. [ 38 ] Third, she submits that the judge erred in stating that the new proposed conditions were more lenient than the original ones and that the sanction imposed is disproportionate and does not take into account the rehabilitation process already under way. [ 39 ] Finally, she asserts that the consequences of a custodial sentence on her daughter were underestimated.

B - Respondent [ 40 ] The Respondent submits that the sentence is fit and that the judgment contains no error in law or in principle. Because the joint submission was agreed upon after a full trial, the Respondent argues that the judge did not need to adopt the public interest test in order to depart from it. [ 41 ] It further contends that the Appellant’s grievances have no reasonable basis. In reaching his conclusion, the judge considered the whole context of the case.

The Respondent submits that the Appellant is only asking the Court to intervene because she disagrees with the judge’s weighing of the different factors. [ 42 ] Moreover, the judge’s reasons show that he considered all of the options set out in s. 742.6

(9) Cr.C . Finally, he committed no error by insisting on the gravity of the original offences, given that the hearing for breaches of the CSO is a continuation of the hearing on the original sentence. V - ANALYSIS [ 43 ] The standard of review for an appeal from a CSO breach is the same as the one that applies to an appeal from a sentence. [12] [ 44 ] The original offences to which the appellant pleaded guilty were described as “repugnant and disturbing” by the judge. No one would quarrel with that description.

But this case is not about whether the original offences were extremely blameworthy, there is no doubt that they were. A - Joint submission [ 45 ] Since the hearing of this appeal, the main issue raised by the case at bar was decided by the Court in another matter. [ 46 ] In Baptiste v.

R. , [13] the Court underlined the fact that while Anthony-Cook [14] concerned a joint submission before trial, similar principles applied to a joint submission after conviction: [67] As Moldaver, J. noted in Anthony-Cook , “for joint submissions to be possible, the parties must have a high degree of confidence that they will be accepted.

Too much doubt and the parties may choose instead to accept the risks of a trial or a contested sentencing hearing ” [Emphasis added]. [68] To justify or support his departure from the joint submission presented by the parties, the sentencing judge purported to rely on our Court’s decision in Blondeau . It is an unfortunate narrow reading of Blondeau . [69] The context in Blondeau differed significantly from the matter at hand. In Blondeau , the judge informed the parties of his concerns about the joint submission on sentence presented after verdict and he gave them the opportunity to respond.

Our colleague Ruel J.A., concluded that, having acted fairly, the judge could therefore depart from a joint submission that would be contrary to the public interest and that could bring the administration of justice into disrepute. [70] While it is true that our colleague recognized in his nuanced opinion the existence of a difference in the nature of the discretion of a sentencing judge before trial and after a verdict, nothing in his reasons suggests vesting the sentencing judge with an unbridled or untrammelled discretion to ignore at will the joint submission of the parties merely because it was made after trial. [71] The importance of preserving the high degree of confidence necessary to prevent an unnecessary contested sentencing hearing and the important role of the Crown as the protector of the public interest, as the Supreme Court underlined in Anthony-Cook and recently in Ontario (Attorney General) v.

Clark , cannot be ignored and do not simply vanish after a trial. [72] Even though the benefits of an uncontested sentencing hearing after trial are different in magnitude from a guilty plea before trial, they too save “precious time, resources, and expenses, which can be channeled into other matters”. [73] The criminal justice system has many moving parts. Sentencing hearings are one of them. In the recent case of R. v. K.G.K., Moldaver, J. referred to the compelling observations of Doherty, J.A. in R. v.

Allen where he stated that “[n]o case is an island to be treated as if it were the only case with a legitimate demand on court resources”. [74] Timely and efficient sentencing hearings are expected under s. 11(

b) of the Charter . So is cooperation between counsel, including through joint submission after trial. This “is no small benefit” because it allows “our justice system to function more

efficiently”. Obviously, any time that “goes to one case cannot go to another”. [References omitted] [ 47 ] At the outset, we feel compelled to mention that this judgment only addresses the issues that require determination for the purpose of the appeal.

The Court will refrain from commenting on every issue raised in the judgment. [ 48 ] Indeed, while the judge stated, as required by Anthony-Cook , that he was “extremely troubled, perturbed and shaken” by the joint submission, many issues discussed in his judgment were never specifically raised with the parties in more than, at best, a cursory or generic way. [15] [ 49 ] The standard established in Anthony-Cook is more demanding: “[t]he judge should notify counsel that he or she has concerns, and invite further submissions on those concerns” [Emphasis added]. [16] Where a judge fails to alert the parties about specific concerns with a joint submission, it prevents the parties from making tailored submissions to answer those concerns. [17] [ 50 ] For example, one issue troubling the judge and a recurrent theme in his judgment is the need to address “the impact of conditional sentences on public confidence in the administration of justice” [18] and the fact that a six-month sentence of imprisonment was “required to reinforce public confidence in the conditional sentence system”. [19] [ 51 ] The judge had stated his systemic concerns at the very outset of his judgment: [1] Conditional sentences of imprisonment have existed in this country since 1996.

Somewhere along the last 23 years, it appears that some have forgotten the “imprisonment” aspect of the concept. This judgment may serve as a reminder. [ 52 ] Addressing systemic sentencing issues in a judgment departing from a joint submission is fraught with perils and should be avoided. [20] [ 53 ] Unless the issue is explicitly raised with the parties, the evidentiary foundation will often be lacking. The parties cannot be expected to discuss systemic issues when their endeavour is to resolve the case before them.

Hence, there is danger involved in taking into account a systemic factor to justify the departure from a joint submission. [ 54 ] Moreover, as explained in R. v.

Friesen , “[w]hen a body of precedent no longer responds to society’s current understanding and awareness of the gravity of a particular offence and blameworthiness of particular offenders or to the legislative initiatives of Parliament”, [21] the general rule is that “appellate courts should take the lead in such circumstances”. [22] [ 55 ] In our view, the main issue in this appeal boils down to the application of the standard set by the Supreme Court in Anthony- Cook : [34] In my view, these powerful statements capture the essence of the public interest test developed by the Martin Committee.

They emphasize that a joint submission should not be rejected lightly, a conclusion with which I agree. Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down.

This is an undeniably high threshold — and for good reason, as I shall explain. [ 56 ] We do not believe that it is necessary to undertake a detailed review of the case law pertaining to CSO breaches. [ 57 ] Firstly and simply put, the review of the case law by the judge does not establish that the joint submission was unhinged.

It only serves to demonstrate that there were other outcomes, in different cases, some of which, if applied to the Appellant, would have attracted a harsher outcome. [ 58 ] Secondly, the suggested extension of approximately two months to the initial period of 12 months of house arrest is hardly lenient. [ 59 ] As Chief Justice Lamer explained in R. v. Proulx , the denunciatory impact of a sentence of house arrest cannot be minimized: [105] The stigma of a conditional sentence with house arrest should not be underestimated.

Living in the community under strict conditions where fellow residents are well aware of the offender’s criminal misconduct can provide ample denunciation in many cases.

In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison. [23] [ 60 ] No matter how one views such a sentence, considering the relative seriousness of the breach offences committed by the Appellant, which did not involve the commission of other criminal offences, it is markedly far from qualifying as being unhinged and it cannot reasonably support the conclusion that “ the proper functioning of the justice system had broken down”. [ 61 ] The judge alluded to the improvised nature of the joint submission and he stated that “the fact that the matter ended up in a joint submission was essentially based on happenstance”. [24] [ 62 ] Joint submissions should be encouraged no matter what the context is. [ 63 ] Here, an experienced Crown counsel (who was supervising an articling student) came to the view that the information stemming from the Appellant’s testimony at the breach hearing justified undertaking discussions towards a joint submission.

He requested a suspension for that very purpose. [ 64 ] Embracing the approach of the judge would discourage such initiatives. It may also prevent Crown counsel from making the appropriate ad hoc decision on the basis of newly provided information.

[65] The importance of the Crown’s discretion in such circumstances cannot be underestimated, because it goes to the core of itsimportance in the criminal justice system, as reiterated in R. v. Anderson: [37] This Court has repeatedly affirmed that prosecutorial discretion is a necessary part of a properly functioning criminal justicesystem: Beare, at p. 410; R. v. T. (V.), (SCC), [1992] 1 S.C.R. 749, at pp. 758-62; R. v. Cook, (SCC),[1997] 1 S.C.R. 1113, at para. 19. In Miazga v.

Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 47, the fundamentalimportance of prosecutorial discretion was said to lie, “not in protecting the interests of individual Crown attorneys, but in advancing thepublic interest by enabling prosecutors to make discretionary decisions in fulfilment of their professional obligations without fear ofjudicial or political interference, thus fulfilling their quasi-judicial role as ‘ministers of justice’”.

More recently, in Sriskandarajah v.United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609, at para. 27, this Court observed that “[n]ot only does prosecutorialdiscretion accord with the principles of fundamental justice — it constitutes an indispensable device for the effective enforcement of thecriminal law”.[25] [Emphasis added] [66] Where a Crown counsel, on the basis of the particular circumstances of the case, makes a responsible and appropriate decision toundertake discussions towards a joint submission, it “permit[s] the system to function smoothly and efficiently”.[26] Such decisions are“vitally important to the well-being of our criminal justice system, as well as our justice system at large”.[27] They should be supported,not stifled. [67] Finally, under the threshold recently reaffirmed in Baptiste v.

R.,[28] the Court does not see any exceptional circumstances thatwould justify the Crown’s repudiation of the joint submission made at trial. There is no demonstration that the public interest in theorderly administration of justice is outweighed by the gravity of the crime and the gross insufficiency of the sentence.[29] B - Importance of the seriousness of the original offences [68] The importance of the seriousness of the original offences is a prominent factor in the judge’s analysis, unwarrantedly so.

Itssignificance was not, as a matter of law, a factor which could decisively overthrow the entire analysis in deciding whether to depart fromthe joint submission. [69] First, contrary to established principles of fairness,[30] the judge raised the issue himself in his judgment without putting anyprior specific question to the parties about it. [70] He described the matter in the following terms in his decision: [149] In determining the proper disposition, the focus should be on the offender and post sentence conduct, namely: the breachesthemselves. [150] At the same time, the court must be mindful of the confidence of the community in the sentencing process.

Despite her callingthem “mistakes”, it is common ground that in the case of Mrs. Obodzinski, her predicate crimes were extremely serious, both from anobjective and subjective standpoint. In fact, it is difficult to conceive more egregious conduct that would not ultimately result in acustodial sentence. [151] In my view, the more serious the crime having led to the conditional sentence, the more the community expects (and rightfullydemands) that the CSO be scrupulously respected by the offender.

It also expects the courts to react accordingly in cases of breaches.This seems to be a logical trade-off: if the crime mandates a firmly denunciatory and deterrent sentence, this will legitimately generate aheightened expectation from society with respect to the compliance with the conditions. As such, there must be a measure ofproportionality between the seriousness of the original offence and the scrutiny that the offender will be held to.

Such proportionality isessential to dispelling society’s concerns that conditional sentences are unduly “lenient” for major crimes. [152] The interplay between the original sentence imposed and the CSO breach has often been addressed by the courts – though notalways consistently. [153] In the case at bar, it is important to identify what role must be given to the seriousness of the underlying offence in the s.742.6(9) C.C. sanctioning process. [154] After all, it is one of the listed factors in R. v. Langley.

However, the British Columbia Court of Appeal did not specify how thisfactor applies. [155] If a subsequent CSO breach justifies a fresh reassessment of the sentence originally imposed, then the seriousness of the predicateoffence will be a major factor.

Conversely, if the breach is to be treated as a totally independent occurrence warranting a distinctsanction, then the seriousness of the original offence loses much of its impact at the breach sanctioning stage. [71] The judge reviewed a number of decisions and then concluded in the following terms: [169] For all these reasons, in my determination of a fit sanction for the CSO breaches, I will consider among all the other relevantfactors the seriousness of the underlying offences committed by the offender.

This is essential to the preservation of the deterrent anddenunciatory effects of the original sentence. [72] Second, the weight placed on the original offence creates the perception of a rehearing. The nature of a breach hearing wasclearly described by the Alberta Court of Appeal in R. v. Tomic:[31] [15] Nor is the original sentencing court functus and without jurisdiction. The proceeding is not a rehearing of the original sentence.

Section 742.6(9) limits the powers of a judge who concludes that there has been an unjustified breach. As noted by Osborne J.A. in R. v.Casey (2000), (ON CA), 141 C.C.C. (3d) 506 (Ont. C.A.), the measures do not permit the court to lengthen theexisting sentence of imprisonment, or to impose a different sentence altogether. The court can only deal with the unexpired part of theoriginal conditional sentence. The hearing is not a rehearing of the original sentence.

It is to assess a new action, alleged to be a breach,the reasons for the alleged breach, and make a determination with respect to the consequences of that breach only. The action that can betaken is limited to adjusting the conditions or requiring that the balance or some lesser term of the sentence be served in prison. Insummary, the Provincial Court should not have refused to entertain this proceeding on the ground that it was functus, as this is not a re-evaluation of the earlier sentence for the original offence.

It is merely a determination of whether any of the limiting measures availableshould be employed as a result of any breach that occurred. Nor does the fact that an appellate court altered the original sentence andimposed a conditional sentence on different terms, change the jurisdiction of the original sentencing court to hear the application. [Emphasis added] [73] The Court does not interpret the reasons of Steele, J.A. in R. v. Carpenter[32] as contradicting the principles established inTomic.

Nor does it believe that the authors of Sentencing and Penal Policy in Canada expressed a view that departed from theseprinciples.[33] [74] The reasons of the judge presiding over the breach proceedings, who was not the original sentencing judge,[34] demonstrate theproblems stemming from such an approach. While it surely was not the intention of the judge here, such reasons may be perceived as anexpression of dissatisfaction with the original sentence that becomes an oblique criticism, overtly or subtly hinted, of a sentence imposedby a colleague.

It is not the place nor the appropriate institutional role of a different judge called to adjudicate a breach of conditions toquestion, even implicitly, the original sentence of a colleague. [75] Such an analytical endeavour fosters uncertainty and undermines the confidence of the parties and the public.

Furthermore, it is achallenge to the expected judicial comity. [76] Finally, the risk of sentencing the offender twice for the same offence is increased. [77] This judgment should not be interpreted as stating that the nature of the original offences may never inform the disposition of abreach sentence where the underlying offences were of a similar nature. [78] But, in this case, the importance given to the discussion regarding the original sentence is unfounded and it overwhelms theanalysis.

Not only is it inappropriate in the context of a joint submission which cannot realistically be described as unhinged, but it isalso an error of law that impacted on the sentence imposed. [79] Furthermore, the six-month imprisonment is disproportionate when considering the nature and timing of the breaches, the factthat the breaches did not constitute a criminal offence, the supervisor officer’s description of the Appellant as being cooperative (otherthan the breaches that were before the Court), and the lack of prior convictions before the underlying offences. [80] That being said, this judgment should not be read as downplaying the seriousness and blameworthiness of the original offencescommitted by the Appellant.

They were abhorrent. [81] Its purpose, however, is to address a completely different issue with respect to the determination of the breach offences. C - Disposition [82] The original conditional sentence of two years minus one day was imposed on January 9, 2018, to be followed by a three-yearprobation.

The first 12 months were to be served by a 24-hour house arrest. [83] It was therefore contemplated that the conditional sentence would end on January 7, 2020 and the probation on January 7, 2023. [84] On November 12, 2018, the CSO was suspended pursuant to s. 742.6(10) Cr.C. until March 21, 2019, but the conditions of theorder continued to apply (s. 742.6(11) Cr.C.) during that suspension, including house arrest. [85] On March 21, 2019, the judge revoked the conditional sentence partially, suspended the conditional sentence and ordered theAppellant to serve six months in custody, being a portion of her unexpired sentence.

The conditional sentence was to resume after theAppellant’s release from the custody ordered by the judge. [86] The Appellant was detained for a period of 14 days from March 21, 2019 until she was released on April 4, 2019 under strict bailconditions pending her appeal.

The reality of the conditions under which the Appellant was released were akin to house arrest. [87] When the Appellant was released on bail on April 4, 2019, the decision stayed the execution of the decision rendered on March21, 2019.[35] [88] The decision stayed both the order to serve in custody a portion of the unexpired conditional sentence[36] and the partialsuspension of the conditional sentence.[37] [89] Therefore, in the absence a Crown’s motion to suspend the conditional sentence until the appeal was determined (s. 683(5)(f)C.Cr.), when the Appellant was released on bail on April 4, 2019, she then resumed serving her original conditional sentence. [90] Furthermore, from April 4, 2019 to September 22, 2021, the Appellant was subjected to conditions akin to house arrest during aperiod of more than 29 months while out on bail pending appeal. [91] Consequently, while the parties’ joint submission to increase the period of house arrest was not adopted by the judge, the

sentence has been more than completely served because the Appellant was subjected to house arrest for a period that is longer than the total length of her unexpired conditional sentence. [ 92 ] For all intents and purposes, from January 9, 2018, the Appellant has served the equivalent of more than 44 months of house arrest, much longer than the maximum length of a conditional sentence. [ 93 ] For the reasons previously discussed, the judge should not have departed from the joint submission which increased the time to be served by house arrest as a result of the breaches committed by the Appellant. [ 94 ] In our view, as of March 21, 2019, the judge should have ordered the Appellant to serve four months of house arrest (which included 57 days of unserved house arrest).

This would have added approximately two months of house arrest and would thereby have decreased the curfew portion of her CSO to approximately 10 months. [ 95 ] At this point in time, the Appellant has completely served her conditional sentence, [38] having finished doing so on May 29, 2020. [39] The probation order came into effect on May 30, 2020. [ 96 ] In view of the bail conditions imposed on April 4, 2019, any discussion regarding the changes suggested by the parties in their joint submission pertaining to other optional conditions of the original CSO has become superfluous because the issue is now totally moot.

FOR THESE REASONS, THE COURT: [ 97 ] ALLOWS the appeal; [ 98 ] QUASHES the judgment rendered by the Court of Québec, and, proceeding to render the judgment that should have been rendered; [ 99 ] ORDERS the Appellant to serve a period of four months of house arrest, as of March 21, 2019; [ 100 ] DECLARES that the Appellant has completely served the conditional sentence. JACQUES CHAMBERLAND, J.A. GENEVIÈVE MARCOTTE, J.A. GUY COURNOYER, J.A.

Mtre Jean El Masri El Masri avocat For the Appellant Mtre Laurent-Alexandre Duclos-Bélanger Director of criminal and penal prosecutions For the Respondent Date of hearing: June 11, 2021