R. v. Minot, 2011 NLCA 7

Date: 201 10111 Docket: 09/90 Citation: R. v. Minot , 2011 NLCA 7 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : PATRICK MINOT APPELLANT AND : HER MAJESTY THE QUEEN as represented by the Attorney General of Canada AND the Attorney General of Newfoundland and Labrador RESPONDENT Coram: Rowe, White and Hoegg, JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Judicial Centre at Gander Appeal Heard: September 20, 2010 Judgment Rendered: January 11, 2011 Reasons for Judgment by Hoegg, J.A. Concurred in by White and Rowe, JJ.A.

Counsel for the Appellant: David Eaton, Q.C. Counsel for the Federal Crown: Paul Adams Counsel for the Provincial Crown: Vikas Khaladkar

Hoegg, J.A.: INTRODUCTION [ 1 ] This appeal raises jurisdictional, evidentiary and sentencing issues in the context of convictions under the Aeronautics Act and Criminal Code arising from an in-flight incident on an international flight diverted to Gander, NL.

BACKGROUND [ 2 ] On August 19, 2009 in the Provincial Court at Gander, NL, Patrick Minot pleaded guilty to a charge of mischief by willfully interfering with the property of American Airlines (an aircraft known as Flight 147) contrary to section 430(3) of the Criminal Code and a charge of engaging in behaviour that endangered the safety or security of an aircraft by intentionally interfering with the performance of the duties of crew members in breach of

section 7.41(1) (

a) of the Aeronautics Act , R.S.C. 1985, c. A-2. [ 3 ] Mr. Minot is a French citizen. He is an electronics engineer by education and a successful entrepreneur. At the time of the offences, he was running an American electronics company located in France. The company specialized in “imbedded, electronic solutions”. [ 4 ] On August 15, 2009 Mr. Minot was traveling from France to Boston, USA on American Airlines Flight 147 for the purpose of attending a seminar where he intended to demonstrate a new technological device made by his company. Mr.

Minot’s in-flight use of this device, his cell phone and laptop computer, and his associated relations with the flight staff gave rise to the charges. [ 5 ] The situation caused Flight 147 to be diverted to Gander where Mr. Minot deplaned. He was arrested forthwith and charged. He was put in touch with duty counsel. Three days later he was released from custody on strict conditions, and the following day, August 19, 2009, he appeared in court to answer the charges. [ 6 ] The Code and Aeronautics Act offences are both hybrid offences requiring Crown elections as to procedure.

The federal Crown elected to proceed summarily on the Aeronautics Act charge. The provincial Crown elected to proceed by indictment on the mischief charge, thereby requiring Mr. Minot to elect his mode of trial. He elected to be tried by a Provincial Court Judge. Mr. Minot then entered guilty pleas to both charges. Mr. Minot was represented by counsel throughout the court proceedings. FACTS [ 7 ] The facts were read into the record by the provincial Crown Attorney on behalf of both the provincial and federal Crowns.

The facts are as follows: Your Honour, on the 15th of August, 2009, at approximately 1:30 in the afternoon Cst. Robbins of the RCMP in Gander, Newfoundland and Labrador received a call from Telecommunication Centre advising of a diverted flight from Paris, France enroute to Boston, Massachusetts, United States, that was landing in Gander at 2:30 p.m. It was reported, this was reported from Leanne Kenney an employee of Allied Services was that a male named as Patrick Minot had two “weird devices”. One of which he had used a plastic compound to attach to an interior wall of the aircraft.

The initial report was that Mr. Minot was acting strangely and would not turn over the devices. At 2:50 p.m., Cst. Robbins spoke with the captain of the aircraft, an American Airlines flight 147. Mr. Balou (phon) indicated that approximately two hours into the flight, the flight attendant called the cockpit to inform him that Mr. Minot would not turn off his cell phone or GPS device. After several requests, eventually the flight attendant confiscated the item and turned it off. Shortly after this, Mr.

Minot apparently attached a small electronic device to the fuselage on the wall with some sort of putty-like substance. Apparently, the passenger in the seat next to him noticed this and advised the flight attendant. This device was also confiscated by the flight attendant. It was at this point shortly after this that the flight crew expressed their concern and discomfort with Mr. Minot’s suspicious activities. And finally, at 4:45, the flight attendant eventually had to confiscate a laptop computer from Mr. Minot which he’d started up contrary to the directions of the flight attendant.

At 1,0, sorry, 15:02 hours or 3 just after 3 o’clock in the afternoon, Cst. Robbins met the aircraft, spoke with Mr. Minot, identified himself as a RCMP officer, requested that Mr. Minot get off the plane and bring his belongings. Once outside the aircraft, Mr. Minot was advised of his, of his being arrested for mischief and failure to comply with the directions of the flight crew of the aircraft. Cst. Robbins turned over a laptop computer, cell phone and a GPS device which had some yellow putty stuck to the back approximately the size of [a] nickel.

These were turned over to Canadian Border Services to be searched and then returned to the RCMP along with Mr. Minot’s luggage. There were a number of inquiries made. Mr. Minot was put in touch with Mr. John Duggan of the Newfoundland Legal Aid Commission. He was also given an opportunity to speak with somebody from the French Embassy and then there were a number of statements taken from various people on the aircraft including the purser, Mr. Jason, Jason Crom, (phon) who had reported Mr.

Minot being repeatedly non-compliant, hiding the fact that he was using a cell phone and it was other passengers that advised the purser of Mr. Minot’s use. The flight attendant found another electronic device stuck to the fuselage of the plane near Mr. Minot’s seat. This is hidden, I understand, with a pillow. A description was taken of this to the cockpit. It could not be identified. The crew were unaware whether or not this was an explosive device or a GPS to assist some other device and it was at this point that the crew decided to divert the aircraft to Gander.

The, the impression from the crew and other passengers was that Mr. Minot was being non-compliant and behaving suspiciously. Again, this was, this was confirmed by a number of passengers and other crew members on the, on the aircraft. Your Honour, those essentially are the facts. Mr. Minot remained in custody until his release late yesterday afternoon and I have some information, obtained some information from American Airlines in terms of the costs incurred by the airlines as a result of the diversion to Gander … Mr.

Minot’s counsel then advised the court that there was “no dispute on the facts.” [ 8 ] Other facts worth noting were forthcoming in the subsequent exchange between the court and counsel: THE COURT: And with respect to the quantum as outlined by American Airlines, any dispute with respect to that?

DEFENCE: No dispute, Your Honour. THE COURT: is there anything to indicate that Mr. Minot was under the influence of any substance? CROWN: There’s nothing in, that we’re aware of to indicate that he was under the influence of any intoxicants, Your Honour. I’d, I, my impression is that he was not. THE COURT: I see. And does Mr. Minot suffer for any type of mental illness or that sort? DEFENCE: None that we’re putting forward, Your Honour, no. THE COURT: Okay. CROWN: Your Honour, I’d just like to quickly review the, the expense report that I received from American Airlines.

Essentially, what they’re outlining is that additional fuel costs for this stop amounted, and these are U.S. dollars that at the date incurred, the additional fuel costs involved were $4,335.32. Now there’s an amount there of extra fees of 5,000 and I think we’re going to have to deduct from the total because that is a reference to the, that’s an estimate from Allied Aviation. There’s a reference to landing fees in Gander and I have a clear amount of that. So we, the total is going to be a little different, a little less than I indicated to Mr. Kuszelewski. THE COURT: Okay. CROWN: So, there’s 4,335.32 for fuel.

THE COURT: Yes. CROWN: Then there’s an additional 6,866.51, which is essentially cost directly from the diversion in terms of passenger accommodation, passenger restitution and cargo margins lost. Then there’s a further amount in terms of connecting passenger revenue lost because this particular fight was delayed. There was a loss in, in, in connecting passengers and then additional expenses for the crew. The subtotal there was $5,767.47. Now the grand total indicated on page two of the information I received from Sonja Carabello is $21,969.30.

We should deduct $5,000 from that, but we’ll be adding on actually $5,039. So the, now the, the estimate extra fees estimated on page one from Allied Aviation, I got some clarification on that and that’s attached [to] the third page on the documents I provided, provided to the Court, and this is landing fees in Gander, the total of $5,039 U.S. Two parts to the landing fees, the actual landing fee incurred at Gander and emergency fees incurred. So that was very close to the $5,000 estimate. So in essence, what we’re looking at then is $21,969.30 plus $39. THE COURT: So that’s $22,008.30?

CROWN: Correct, Your Honour. THE COURT: And that’s U.S. dollars? CROWN: Yes. THE COURT: Alright. CROWN: Those, essentially would be the facts, Your Honour. [ 9 ] All three counsel were heard on sentence. On the mischief charge, the trial judge sentenced Mr. Minot to time served and three months probation, and ordered him to pay $22,008.30 (U.S.) restitution to American Airlines. The record indicates that the Restitution Order is a stand-alone order (as opposed to being a condition of probation) and that there is no deadline for payment. Mr.

Minot was fined $10,000 for the Aeronautics Act offence, and given four months to pay it. ISSUES [ 10 ] Mr. Minot appeals both his convictions and sentence. The appeal of his convictions raises two main issues: 1. Did the Provincial Court at Gander have jurisdiction over him and the offences; and 2. Do the facts support convictions for the offences to which he pleaded guilty? [ 11 ] Mr. Minot’s sentence appeal also raises two main issues: 1. Was the sentence imposed unfit or otherwise unlawful in the circumstances; and 2. Did the trial judge err in law by ordering that Mr.

Minot pay restitution to American Airlines as per the terms of the Restitution Order? DISCUSSION AND ANALYSIS Jurisdiction Concerning the Attorney General’s Consent [ 12 ] Because Mr. Minot is not a Canadian Citizen and the offences took place on an in-flight aircraft, sections 7(1) and 7(7) of the Code apply to this matter. Those sections read: 7.

(1) Notwithstanding anything in this Act or any other Act, every one who

(

a) on or in respect of an aircraft (

i) registered in Canada under regulations made under the Aeronautics Act, or (ii) leased without crew and operated by a person who is qualified under regulations made under the Aeronautics Act to be registered asowner of an aircraft registered in Canada under those regulations, while the aircraft is in flight, or (

b) on any aircraft, while the aircraft is in flight if the flight terminated in Canada, commits

an act or omission in or outside Canada that if committed in Canada would be an offence punishable by indictment shall bedeemed to have committed that act or omission in Canada. . . . 7(7) If accused not Canadian Citizen - If the accused is not a Canadian citizen no proceedings in respect of which courts havejurisdiction by virtue of this

section shall be continued unless the consent of the Attorney General of Canada is obtained not later thaneight days after the proceedings are commenced. [13] The Appellant argues that the Provincial Court at Gander had no jurisdiction over him respecting the two charges because thereis no proof that the Attorney General of Canada consented to the continuation of the proceedings as required by section 7(7) of the Code. [14] There is no proof on the record of the Attorney General’s consent to continue the proceedings against Mr. Minot. [15] Mr. Minot took no issue with jurisdiction during the Gander proceedings.

He raises it for the first time in this Court. [16] Mr. Minot says that his failure to challenge jurisdiction at trial does not mean that he consented to the court’s jurisdiction overhim. That is so. Mr. Minot’s failure to challenge jurisdiction does not mean that he consented to the court’s jurisdiction over him. Indeed an accused is in no position to grant jurisdiction to a court by his or her consent. (See R. v. Dudley, 2009 SCC 58, paragraphs 34and 35.) [17] In response to the jurisdictional aspect of Mr.

Minot’s appeal, the federal Crown, supported by the provincial Crown, filed anapplication to adduce fresh evidence so that the existence of the Attorney General’s consent to the proceedings against Mr. Minot couldbe proved. The Crown’s position is that when jurisdiction is challenged, it is able to adduce evidence so as to prove jurisdictionregardless of the stage of the proceedings. [18] The Appellant argues that the Crown’s application to tender fresh evidence ought not to be allowed because it does not meetthe test established in Palmer and Palmer v.

R. (1979), (SCC), 50 C.C.C. (2d) 193 for the tendering of fresh evidenceon appeal. According to Palmer, if the evidence was known and available at the time of trial, it ought to have been tendered then. TheCrown’s position is that Palmer does not apply to this situation. [19] The Appellant relies on Davidson v. British Columbia (A.G.) (2006), 2006 BCCA 447 , 214 C.C.C. (3d) 373(BCCA) to support his position that the Crown must tender proof of the Attorney General’s consent at trial.

Davidson involved anappeal which challenged a lower court’s dismissal of a privately prosecuted charge against former American President George W. Bush. There had been no evidence at trial that the Attorney General had consented to continue the proceedings against President Bush, so theCrown challenged the appeal court’s jurisdiction to hear the appeal by way of an application preliminary to the appeal. There was noevidence of the Attorney General’s consent forthcoming after the challenge on appeal.

Consequently, the British Columbia Court ofAppeal found that it was without jurisdiction to hear the appeal, and the matter concluded. [20] While Davidson makes clear that the Attorney-General’s consent is necessary for the court to have jurisdiction to continueproceedings in certain circumstances against a foreign national, it does not say that jurisdiction must be proved by tendering the consentas part of the Crown’s case.

Rather, Davidson says that once jurisdiction is challenged, if proof of the Attorney General’s consent is notforthcoming, the proceedings cannot be continued. [21] The appellant also relies on the following statement of T. Quigley, in Procedure in Canadian Criminal Law, 2d ed. (Toronto:Thomson Reuters, 2005) at p. 3-24, made in reference to section 7(7) of the Code: In all such cases, a failure to have and to prove the required consent amounts to a lack of jurisdiction to try the offence. [22] The Quigley excerpt does not say that proof of the Attorney General’s consent must be proved during the Crown’s case.

Infact, it does not address the issue of when such proof must be adduced. Quigley’s comment is therefore not inconsistent with the viewthat proof of jurisdiction must be forthcoming if challenged. [23] There is ample authority in Canadian law for the proposition that it is not necessary for the Crown to prove jurisdiction as partof its case in order to maintain proceedings. The point is captured in the oft-quoted statement “regularity is presumed unlesschallenged”. [24] Historically, this issue was dealt with in Rex v. Thompson, (1913), (AB CA), 5 W.W.R. 157 (Alta.

S.C. [EnBanc]) where the court decided that “it is not essential that a fiat from the Attorney General authorizing a prosecution under The Lord’sDay Act should be put in evidence” as part of the Crown’s case. That ruling followed the reasoning in two English cases, Rex v.Waller, [1910] 1 K.B. 364 and Rex v. Turner, [1910] 1 K.B. 346, which decided that consent to prosecute is to be presumed unlessobjection is taken at trial, in which case it is then open to the Crown to prove consent in order to satisfy the Court that it has jurisdiction.

More recently, this line of reasoning was followed in R. v. Skene Cartage Co. Ltd., (ON CA), [1970], 3 C.C.C. 142(Ont. C.A.) and R. v. Blunden (1977), (NS SC), 40 C.C.C. (2d) 492 (N.S. Dist. Ct.) and latterly in R. v. Samida(1989), (SK KB), 78 Sask. R. 274 (Q.B.). [25] That jurisdiction is presumed to exist until challenged is also the view of E. G.

Ewaschuck, expressed at pages 12-25 ofCriminal Pleadings and Practice in Canada, 2d ed. (Toronto: Canada Law Book 1987): 12:5100 Consent is formal matter Notwithstanding that the matter of consent is jurisdictional, since consent is “but a formal matter”, … the Crown need not prove the consent, which is presumed unless the defence calls for such proof. … 12:5110 Opportunity to prove consent If the matter of consent is raised by the defence, the Crown should be given the opportunity to prove the consent at any time during thetrial, including the opportunity to re-open its case in order to do so. [26] Also of note is that section 7(7) of the Code does not stipulate that the Attorney General’s consent must be filed with the Courtor otherwise put on the record.

This is in contrast to at least one other Code

section requiring that the Attorney General’s consent tocontinue proceedings must be filed with the clerk of the court in which the proceedings have been instituted. (See

section 477.2). [27] In the result, jurisdiction is not an element of an offence requiring evidentiary proof as part of the Crown’s case. Accordingly,in the absence of a statutory requirement to file proof, a court’s jurisdiction is presumed until challenged. [28] Once jurisdiction is challenged, a court must permit evidence to be received on the issue. In this regard, the Palmer test fordetermining when fresh evidence ought to be permitted on appeal is not relevant to this case. This is because the evidence sought to beadmitted does not go to evidence given or a finding made at trial.

Doherty, J.A. explained this situation at pages 232 and 233 of R. v.Widdifield (1995), (ON CA), 100 C.C.C. (3d) 225 (Ont. C.A.): The Palmer criteria do not, however, apply to all situations where fresh evidence is offered on appeal. Those criteria reflect thebalancing of competing considerations relevant to the interests of justice when fresh evidence is offered to attack a determination made attrial. The same criteria cannot necessarily be applied where, as here, the fresh evidence is offered for a different purpose.

The materialsought to be admitted here is not directed at a finding made at trial, but instead challenges the very validity of the trial process. Thenature of this material and the purpose for which it is offered places it outside the Palmer paradigm: R. v. McKellar (1994), (ON CA), 19 O.R. (3d) 796 at p. 799, 34 C.R. (4th) 28 at p. 31 (C.A.); R. v. Vottero, Ontario Court of Appeal, June 17, 1992(unreported).

When a party tenders fresh evidence on appeal, a determination of “the interests of justice” requires an examination of the grounds ofappeal raised, the material tendered and the remedy sought … [29] Accordingly, the Crown’s application for leave to adduce fresh evidence going to the issue of jurisdiction is allowed. [30] The fresh evidence sought to be admitted consists of 1) a copy of a “Consent of the Attorney General of Canada” dated August18, 2009 in respect of the charge against Mr.

Minot under section 430(3) of the Code which is signed by Marian Fortune-Stone, Q.C. forthe Deputy Attorney General of Canada; 2) a copy of a “Consent of the Attorney General of Canada” dated August 17, 2009 respectingthe alleged breach of

section 7.41(1)(

a) of the Aeronautics Act against Mr. Minot which is executed by Marian Fortune-Stone, Q.C. forthe Deputy Attorney General of Canada; 3) an affidavit from the federal Crown Attorney at trial to the effect that the Attorney Generalconsented to the continuation of the Aeronautics Act proceedings against Mr. Minot and that she was in receipt of the written consentwhen Mr. Minot entered his plea on that charge, 4) an affidavit from the provincial Crown Attorney at trial stating that he was in receiptof the Attorney General’s consent to continue the proceeding when Mr.

Minot entered his plea to that charge, and 5) an affidavit fromMr. Minot’s counsel at trial stating that he had been informed by both the federal and provincial Crowns that the Attorney General hadconsented to the proceedings against Mr. Minot prior to his client’s pleas being entered. This evidence proves that the AttorneyGeneral’s consent to continue the proceedings against Mr. Minot was in existence in full compliance with the Code requirements onAugust 19, 2009. Sufficiency of Ms. Fortune-Stone’s Consent [31] Mr. Minot also argues that the consents of Ms.

Fortune-Stone, Q.C. to the continuation of the proceedings against Mr. Minot onbehalf of the Deputy Attorney General are insufficient when a foreign national is being prosecuted. He suggests that consents from theAttorney General or the Deputy Attorney General are indicated in such a situation. [32]

Section 24 of the

Interpretation Act, R.S.C. 1985, c. I-21 as amended empowers appointed persons within specific ministriesto carry out administrative, legislative, judicial or other things or acts in the capacity appropriate to the doing of the thing or act on behalfof the Minister or the Deputy Minister. In this case Ms. Fortune-Stone, in her capacity as Acting Chief Federal Prosecutor, AtlanticRegional office, executed consents to continue prosecutions against Mr.

Minot for a mischief charge under the Code and a breach of theAeronautics Act for the Deputy Attorney General of Canada. [33] There is no challenge to the validity of Ms. Fortune-Stone’s appointment or any suggestion that Ms. Fortune-Stone is an unfitdelegate. Neither is there evidentiary or authoritative support for the argument that her position makes her inappropriate or unsuitable to

provide the required consent in these circumstances. The Appellant’s argument simply seems to be that the Deputy Attorney General orthe Attorney General himself must consent because the proceedings are against a foreign national. [34] Canada is a large country which spans several time zones. There is only one federal Attorney General and one federal DeputyAttorney General. Moreover, Canada is part of global society interconnected by land, sea and air. It is routine for non-Canadians to bewithin our territorial jurisdiction on personal or professional business at any given time.

Therefore it cannot be unexpected that matterswill arise involving foreign nationals which result in criminal proceedings. In this modern era it is not realistic to expect the federalAttorney General or Deputy Attorney General to be available at all times to execute consents to prosecute offences like those to whichMr. Minot pleaded guilty. [35] In this regard, the reasoning of former Chief Justice Dickson in R. v.

Harrison, (SCC), [1977] 1 S.C.R. 238 atpages 245 - 246, which has become known as the Carltona doctrine, remains meaningful today: The tasks of a Minister of the Crown in modern times are so many and varied that it is unreasonable to expect them to be performedpersonally.

It is to be supposed that the Minister will select deputies and departmental officials of experience and competence, and thatsuch appointees, for whose conduct the Minister is accountable to the Legislature, will act on behalf of the Minister, within the bounds oftheir respective grants of authority, in the discharge of ministerial responsibilities. Any other approach would but lead to administrativechaos and inefficiency. [36] Doubtless this doctrine and the realities of contemporary life referred to in paragraph [34] above are the reason why section24(2) of the

Interpretation Act was amended in 1991 to provide for appointments of specific persons, of whom Ms. Fortune-Stone isone, to carry out administrative work in federal ministries. [37] In the result, there is no support for the argument that Ms. Fortune-Stone’s consents are not commensurate with theprosecutions of Mr. Minot for the offences charged or that they are otherwise inappropriate. Her consents are entirely in order. [38] The late timing of the Appellant’s challenge to jurisdiction is also an issue.

Some authorities have decided that the issue ofjurisdiction cannot be raised late in the day or on appeal. (See Blunden and R. v. Sunila (1987), (NS CA), 35 C.C.C.(3d) 289 (N.S.S.C.(A.D.)). Other authorities suggest otherwise. (See Davidson and R. v. Frisbee (1989), (BC CA),48 C.C.C. (3d) 386 (B.C.C.A.). Sunila could be said to support both positions in that the Sunila court, despite deciding that the trialjudge did not err in refusing to entertain the accused’s challenge to jurisdiction near the end of his trial, went on to receive evidence onthe issue. [39] Jurisdiction can be challenged on appeal.

This is because if there was never jurisdiction in the court to entertain theproceedings, they cannot be said to be lawful. If the proceedings are in fact a nullity, an affected person must be afforded an opportunityto have them declared so. [40] In

summary, on the issue of the Provincial Court’s jurisdiction over the proceedings, it is clearly established that the ProvincialCourt at Gander had jurisdiction over Mr. Minot and the within charges. Jurisdiction re Mode of Proceedings [41] Section 7(7) of the Code stipulates that courts have jurisdiction over offences committed in-flight outside of Canada only ifthey are offences punishable by indictment in Canada. Offences under

section 7.41(1) of the Aeronautics Act are hybrid offences,meaning that they can be prosecuted by indictment or by

summary conviction at the election of the Crown. Mr. Minot argues thatbecause the Crown elected to proceed summarily on the Aeronautics Act charge, it lost jurisdiction over him respecting that offence. He relies on Dudley to support this argument. The federal Crown argues that because the Aeronautics Act charge is punishable byindictment, the court retains jurisdiction even when electing to proceed summarily. The Crown also relies on Dudley. [42] At issue in Dudley was the validity of

summary proceedings commenced after the expiration of the six-month limitationperiod. The case decided that once the Crown elects to proceed summarily on a hybrid offence, it must do so within the six-monthlimitation period for

summary proceedings. By electing to proceed summarily after the six-month limitation period, the Crown triggeredthe statutory bar. Dudley is clear, however, that when the charge is a hybrid one, a court retains jurisdiction over the charge and theaccused even after untimely

summary proceedings have been declared a nullity. In other words, the Crown’s election to proceedsummarily against Mr. Minot does not retrospectively invalidate the charge against him or deprive the court of jurisdiction. [43] In Dudley, Fish J. quoted with approval the decision of the Ontario Court of Appeal in R. v. Belair (1998), (ON CA), 41 C.C.C. (3d) 329.

Belair decided that a hybrid offence is at all times triable by indictment, and a court retains jurisdictionover an accused and the offences so as to permit the Crown’s re-election to proceed by way of indictment even after erroneously electingto proceed summarily. [44] The reasoning of both Dudley and Belair makes the Crown’s election to proceed summarily on the Aeronautics Act chargeagainst Mr. Minot of no consequence to the court’s jurisdiction. Jurisdiction is grounded by the offence’s hybrid nature, which makes itan offence punishable by indictment. It therefore is a charge captured by

section 7 of the Code. Consequently, jurisdiction over thesection 7.41(1) Aeronautics Act charge against Mr. Minot was not lost by the Crown’s election to proceed summarily. Do the Facts Support the Offences Charged? [45] After pleading guilty and being convicted of the charges, Mr. Minot now argues that the recorded facts, which he did notchallenge at trial, do not support his convictions. [46] With respect to the Aeronautics Act charge, Mr. Minot says that endangerment of the safety or security of Flight 147 is anelement of the offence which must actually be proved in order for him to be convicted.

He says that the “suspicious activities” heengaged in, specifically the use of his cellular phone, laptop computer and GPS, were devices he was legally entitled to possess and use

on the aircraft, and that his use of them at no time endangered the safety and security of the flight. [ 47 ] At this point it should be noted that both American and Canadian aviation regulations prohibit the use of portable electronic devices on aircraft unless authorized. When aircraft passengers are told not to use their electronic devices by flight crew, they are not authorized to use them. [ 48 ] With respect to the Code offence of mischief, Mr. Minot maintains there is no evidence supporting his “willful interference” with Flight 147.

He says that he is not responsible for the diversion of Flight 147 to Gander for he did not foresee, nor ought he to have foreseen, that his actions could have led to the decision to divert the flight. [ 49 ] There are several problems with Mr. Minot’s position. The first problem is that by appealing evidentiary points, Mr. Minot is effectively seeking to invalidate his guilty pleas to the charges. [ 50 ] It is well-established law that the facts submitted on a guilty plea must set out the factual basis for an offence charged in order for a guilty plea respecting that charge to be valid.

In order to convict, the trial judge must then be satisfied that the submitted facts, in conjunction with the guilty plea, prove the offence charged. [ 51 ] Mr. Minot entered guilty pleas to the above referenced offences four days after his first court appearance, and with the benefit of legal counsel. He took no objection to the submitted facts or indeed any aspect of the proceedings at trial. The record discloses that upon inquiry by the trial judge, defence counsel indicated there was no issue concerning Mr.

Minot’s ability to appreciate his own actions or the nature of the charges, and there was no concern about his fitness. There is no suggestion that Mr. Minot was confused about the proceedings or that he did not truly intend to admit the charges by pleading guilty. [ 52 ] When a case is tried on the evidence, the trier of fact has to make factual findings and determine the mens rea from the evidence tendered. This exercise often involves making legitimate inferences from the evidence to prove the elements of the offence charged.

Such exercises of fact finding are not necessary when a guilty plea is tendered, because a guilty plea is an accused’s formal admission to the essential elements of the offence. (See

section 606 of the Code .) In this case, Mr. Minot admitted the essential elements of both offences to the court. It is not now open to him to argue that the evidence does not support the charges. The obvious reason for this is that a

summary of facts given by the Crown on a guilty plea is not as detailed, comprehensive or fleshed out as evidence tendered and tested during a trial would be. By tendering guilty pleas, Mr. Minot has foreclosed the ability of the federal and provincial Crowns to prove the offences by adducing fulsome testimony from witnesses at trial, which the trial judge would then assess in relation to the elements of the offence. [ 53 ] In Winmill v. R., 2002 NBCA 5 , the New Brunswick Court of Appeal dealt with a similar issue.

The court’s comment at paragraph 4 is on point: Generally, where, as here, the impugned conviction is founded upon a plea of guilty, leave to appeal will be granted only if the Court is satisfied that the accused did not appreciate the nature of the charge, did not intend to admit guilt to the offence charged or if the undisputed facts are inconsistent with guilt. See R. v. McMorran [1998] N.B.J. No. 410 (C.A.) . As indicated in paragraph [51] above, none of these criteria applies in this case. [ 54 ] Permitting Mr.

Minot to challenge the sufficiency of the evidence through an appeal would be allowing him to do through the back door what he avoided doing or chose not to do through the front door. Such a strategy cannot be condoned, absent a situation where the submitted facts are undisputed and clearly irreconcilable with an accused’s guilt. [ 55 ] Despite this conclusion, I will briefly deal with the Appellant’s arguments regarding the evidentiary support for the charges. [ 56 ] Mr. Minot was asked several times to stop using his cell phone and the device now known to be his new version of a GPS. Each time he refused.

Moreover, he attempted to conceal his use of the GPS which he had stuck to the fuselage with an adhesive putty and covered with a pillow. After his phone and GPS were confiscated, he used his laptop computer in defiance of flight crew orders with the result that it, too, was confiscated. Such deliberate and defiant behaviour is willful interference with the flight. [ 57 ] With respect to the Aeronautics Act conviction, Mr. Minot’s deliberate, surreptitious and persistent conduct supports the charge of interrupting and interfering with the fight crew while they were engaged in carrying out their lawful duties.

These interruptions and interferences were the direct cause of the diversion of Flight 147 to Gander so that the safety and security risks arising from Mr. Minot’s concerning behaviour could be addressed expeditiously. [ 58 ] An in-flight aircraft is in a vulnerable state and chances cannot be taken with the lives of passengers and crew, the aircraft itself or property and persons on the ground. A decision was made by those responsible for the aircraft’s safety to divert it to Gander because of Mr. Minot’s actions. This decision was not made unreasonably or in bad faith.

With the benefit of hindsight, we know that the devices he operated (notably the GPS) did not constitute a threat to the aircraft. However, this new information does not now allow Mr. Minot to answer the charge by second guessing the exercise of professional judgment to divert the aircraft. [ 59 ] Lastly,

section 7.41(1)(

a) of the Aeronautics Act is a regulatory offence designed to prevent harm through the enforcement of conduct standards. It reads as follows: 7.41(1) No person shall engage in any behaviour that endangers the safety or security of an aircraft in flight or of persons on board an aircraft in flight by intentionally (

a) interfering with the performance of the duties of any crew member; [ 60 ] The federal Crown submits that because the Aeronautics Act offence is regulatory, the words in the charging

section must be given a meaning consistent with the purpose and objective of the legislation. The Crown also says that no actual harm or endangerment

need be proved. Rather, the potential for harm is to be inferred from the facts of the Appellant’s actions and behaviour – that being therepeated and surreptitious use of electronic devices in defiance of flight crew orders when the purpose for their use was not clear,combined with his failure to surrender the devices to the flight crew on request. [61] The real intention of

section 7.41(1) of the Aeronautics Act must surely be to regulate the behaviour of people so that airlinescan safely transport people and goods. Bearing in mind this purpose of the legislation, the phrase “endangerment to the safety andsecurity” cannot be said to be an element of the offence requiring actual proof of endangerment, as long as the risk of endangerment canreasonably be inferred from the context of the situation without doing violence to the objectives of the statute. Proper statutoryinterpretation including the

interpretation of penal statutes supports an interpretative approach that best assures the attainment of thelegislation’s objects (R. v. Hasselwander, (SCC), [1993] 2 S.C.R. 398). [62] It is not necessary for the Crown to prove that the flight was actually endangered by the Appellant’s behaviour as long as therisk of endangerment can be reasonably inferred from the facts. It is enough to prove the deliberate conduct which creates a situationthat has the potential or is reasonably thought to have the potential to endanger the safety and security of an aircraft.

The unexplained in-flight use of electronic devices in a suspicious and defiant manner combined with a failure to voluntarily hand over the devices whenasked can reasonably be said to raise safety and security concerns for the flight. The “termination” argument [63] Mr. Minot argues that American Airlines Flight 147 did not terminate in Canada because it continued on to Boston, USA afterits unscheduled stop in Gander. This argument is premised on his view that it is only the final stop of the flight which can constitutetermination within the meaning of section 7(1)(

b) of the Code. Section 7(1)(

b) reads: 7.

(1) Notwithstanding anything in this Act or any other Act, every one who (

b) on any aircraft, while the aircraft is in flight if the flight terminated in Canada, commits

an act or omission in or outside Canada that if committed in Canada would be an offence punishable by indictment shall bedeemed to have committed that act or omission in Canada. [64] The term in flight is defined in

section 7.41(3) of the Aeronautics Act as follows: Deeming – “in flight”

(3) For the purpose of subsection (1), an aircraft is deemed to be in flight from the time when all external doors are closed followingembarkation until the time at which any external door is opened for the purpose of disembarkation. [65] The word terminate is not defined. Section 7(1)(

b) of the Code provides for jurisdiction over offences committed on flightswhich “terminated” (past tense) in Canada. The

section does not stipulate that that jurisdiction will be taken only over offencescommitted on flights whose ultimate destination is Canada regardless of stops enroute. Flight 147 was no longer in flight when it landedon the ground in Gander, Canada and a door opened for Mr. Minot to disembark. The flight was stopped at that time. Such a stop is atermination for the purposes of section 7(1)(

b) of the Code. [66] In

summary, Mr. Minot’s appeal based on the facts not constituting the offences charged cannot succeed. Given Mr. Minot’sguilty pleas, it is not now open to him to argue that the evidence does not support his convictions. Nevertheless, the submitted factscombined with Mr. Minot’s guilty pleas do support convictions on both charges. SENTENCE APPEAL [67] In total, Mr. Minot was sentenced to time served (which was seven days), three months probation, and a $10,000.00 fine. Hewas also ordered to pay restitution to American Airlines in the amount of $22,008.30.

He argues that the trial judge made errors insentencing him and that otherwise his sentence was excessive, disproportionate and unreasonable in the circumstances. The Law [68] The law governing an appellate court’s role on sentencing appeals is well established. It starts with section 687(1) of the Code,which identifies fitness as the governing issue for an appellate Court’s review of sentence. The standard of review which an appellatecourt is to apply upon consideration of fitness was recently dealt with by the Supreme Court of Canada in R. v.

Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, where LeBel, J. (for the Court) wrote at para. 46: Appellate courts grant sentencing judges considerable deference when reviewing the fitness of a sentence. In [R. v. M. (C.A.) (1996), (SCC), 46 C.R. (4th) 269 at para. 90], Lamer C.J. cautioned that a sentence could only be interfered with if it was“demonstrably unfit” or if it reflected an error in principle, the failure to consider a relevant factor, or the over-emphasis of a relevantfactor (para. 90; see also R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 14-15; R. v.

Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, atparas. 123-6; R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, at paras. 14-17; R. v. Shropshire, (SCC),[1995] 4 S.C.R. 227). As Laskin J.A. explained in R. v. McKnight (1999), (ON CA), 135 C.C.C. (3d) 41 (Ont.

C.A.),at para. 35, however, this does not mean that appellate courts can interfere with a sentence simply because they would have weighed therelevant factors differently: To suggest that a trial judge commits an error in principle because in an appellate court’s opinion the trial judge gave too much weight toone relevant factor or not enough weight to another is to abandon deference altogether.

The weighing of relevant factors, the balancingprocess is what the exercise of discretion is all about. [page 235] To maintain deference to the trial judge’s exercise of discretion, theweighing or balancing of relevant factors must be assessed against the reasonableness standard of review. Only if by emphasizing onefactor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate court

interfere with the sentence on the ground the trial judge erred in principle. [ 69 ] Applying the law to this appeal, the first issue to consider is whether in sentencing Mr. Minot the trial judge made any error in principle, failed to consider a relevant factor or overemphasized an appropriately considered factor. [ 70 ] Mr. Minot argues that the trial judge made the following errors: 1) he focused on the consequence of Mr. Minot’s conduct, specifically the diversion of the aircraft to Gander, rather than on Mr.

Minot’s asserted low moral culpability; 2) he failed to consider the proportionality of the whole sentence in relation to Mr. Minot’s asserted low moral blameworthiness; 3) he failed to consider Mr. Minot’s asserted low degree of culpability in comparing the Appellant’s case to that of another offender charged with the same offence; 4) he placed too much emphasis on deterrence; and 5) he imposed an improper Restitution Order on Mr. Minot. The Appellant says the Restitution Order is improper because 1) it was really a civil judgment in disguise, and 2) the order was imposed without inquiry into Mr.

Minot’s ability to pay it. [ 71 ] None of the alleged errors is one of principle, except perhaps the allegation relating to the restitution order. The other grounds assert that the trial judge either failed to consider or placed too much emphasis on a legitimate sentencing factor. [ 72 ] It is quite in order for a sentencing judge to consider the consequences of an offender’s behaviour. There is nothing wrong in doing so. The consequences of a crime are almost always a factor in determining a fit sentence.

Accordingly, the trial judge’s consideration of the diversion of the aircraft to Gander as a consequence of Mr. Minot’s behaviour was legitimate. Mr. Minot says though, that there was too much emphasis on this consequence and not enough emphasis on his professed low moral culpability. Mr. Minot also suggests his professed low moral culpability was not appropriately measured against his entire sentence, nor appropriately contrasted to the behaviour of another offender whose sentence for the same or a similar charge in an unreported decision was considered by the trial judge. [ 73 ] Mr.

Minot’s assertion that his actions and behaviour were of low moral blameworthiness requires consideration. He says that he was merely being uncooperative and did not realize his conduct was making others nervous. He says he was unaware that he was causing a disturbance to the flight crew. [ 74 ] Mr. Minot’s deliberate behaviour is not as innocuous as he suggests. While it is not the most serious conduct which can be envisioned under the charged sections, and there is no suggestion that Mr. Minot intended to affect the course of Flight 147, his conduct was deliberate, defiant, surreptitious and persistent.

Although it does not exhibit a high degree of moral culpability, neither does it involve a low degree of moral culpability. The behaviour speaks for itself, and its degree of culpability was obvious to the trial judge from the factual and sentencing submissions. The trial judge specifically noted in his sentencing that Mr. Minot was not the worst offender, and that the facts were not the worst ones which could be envisioned. [ 75 ] As for the similarity of R. v. Kostur (09 January 2009), Gander 0909A0006-00/090A0005-002, which was relied on by the trial judge as having precedential value, to Mr.

Minot’s case, court records indicate that Mr. Kostur was fined $10,000 for a breach of

section 7.41(1) (

a) of the Aeronautics Act , and that he was sentenced to four days incarceration with probation for one year as well as ordered to pay restitution to an aggrieved party of $20,485.57 in relation to an assault charge under the Criminal Code . This Court was not provided with any factual information on which it can determine that the Kostur case is so dissimilar to Mr. Minot’s case so as to preclude its precedential value. [ 76 ] In the result, the trial judge committed no error in the consideration of Mr. Minot’s moral culpability at any juncture in the sentencing process. [ 77 ]

Section 718 of the Code identifies six criteria which a sentencing judge must consider in sentencing an offender. One of these factors is deterrence. The record reveals that the trial judge emphasized general deterrence as a very relevant factor in this case. Given this type of case and its facts and circumstances, it cannot be said that the trial judge erred. Of the factors listed in

section 718, deterrence is very relevant to this case. Denunciation of the conduct, reparation to the victims and the community and promoting responsibility in offenders for the harm they caused were other relevant factors properly taken into account by the sentencing judge. [ 78 ] In

summary, the trial judge considered the degree of Mr. Minot’s culpability, and his personal circumstances, and appropriately emphasized deterrence. Accordingly, he committed no error in relation to an over or under emphasis of legitimate sentencing factors. [ 79 ] The Aeronautics Act provides for a maximum fine of $25,000.00 for breaches of

section 741. Mr. Minot’s $10,000 fine is less than half of the maximum. As pointed out by the trial judge, Mr. Minot’s offending conduct is not the worst that can be imagined. It is also not the least that can be imagined. While the $10,000.00 fine is substantial, when all of the facts and circumstances of Mr. Minot’s case are taken into consideration, the fine cannot be said to be clearly unreasonable or demonstrably unfit. RESTITUTION [ 80 ] The Provincial Crown requested the court to order that Mr. Minot pay restitution of $22,008.30 to American Airlines.

This figure comprises $4,335.32 for additional fuel costs, $6,866.51 for passenger accommodation and restitution and cargo margins lost, $5,767.47 for expenses related to connecting passengers and crew and revenue lost due to flight delay and $5,039 for Gander landing fees. These costs were ascertained and provided to the Crown within four days of the incident. According to the Crown, they reflect American Airlines’ actual monetary loss and are a loss of property within the meaning of section 738(1)(

a) of the Code . Section 731(1) (

a) states:

(1) Where an offender is convicted or discharged under

section 730 of an offence, the court imposing sentence on or discharging theoffender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender,order that the offender make restitution to another person as follows: (

a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or thearrest or attempted arrest of the offender, by paying to the person an amount not exceeding the replacement value of the property as ofthe date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, wherethe amount is readily ascertainable; The costs which are the subject of the Restitution Order directly arise from Mr. Minot’s criminal conduct and consequently are a loss ofproperty within the meaning of section 738(1)(

a) of the Code. [81] Mr. Minot did not contest, either factually or legally, these amounts at trial. The record reveals that the provincial CrownAttorney specifically excluded an amount of $5,000 from the requested order on the basis that it was an estimate and therefore indefinite. [82] Impecuniosity of Mr. Minot did not present as an issue. [83] The law respecting restitution orders imposed pursuant to the provisions of the Code is settled. The Supreme Court of Canadain The Queen v.

Zelensky, (SCC), [1978] 2 S.C.R. 940 upheld the constitutionality of such orders as a valid part of thesentencing process, finding the power to impose them is exercised ancillary to the federal criminal law power. The court found suchorders to be penal sanctions rationally connected to criminal behaviour in that they 1) deprive offenders of the fruits of their crimes, 2)provide compensation to victims of crime and 3) directly benefit an offender’s rehabilitation to the extent that restitution works towardself-correction.

The second and third factors apply here. [84] This Court considered the appropriateness of a restitution order in R. v. Spellacy (1995), (NL CA), 131Nfld. & P.E.I.R. 127. In that case Mr. Spellacy had been ordered by the trial court to pay restitution of $1,086,477. This Court reducedthe restitution payable to $200,000 because it was clear that the offender’s ability to comply with the Order would be particularlyonerous or impossible. The Spellacy case is clearly of a different order and context than Mr. Minot’s case. [85] More recently the Ontario Court of Appeal in R. v.

Devgan (1999), (ON CA), 136 C.C.C. (3d) 238 dealtwith the appropriateness of imposing restitution orders. At paragraph 26 of that judgment, the Court listed the following principlesgoverning the ordering of restitution in criminal cases: 1. An order for compensation should be made with restraint and caution; 2. The concept of compensation is essential to the sentencing process: (

i) it emphasizes the sanction imposed upon the offender; (ii) it makes the accused responsible for making restitution to the victim; (iii) it prevents the accused from profiting from crime; and (iv) it provides a convenient, rapid and inexpensive means of recovery for the victim; 3. A sentencing judge should consider; (

i) the purpose of the aggrieved person in invoking s. 725(1); (ii) whether civil proceedings have been initiated and are being pursued; and (iii) the means of the offender. 4. A compensation order should not be used as a substitute for civil proceedings. Parliament did not intend that compensation orderswould displace the civil remedies necessary to ensure full compensation to victims. 5. A compensation order is not the appropriate mechanism to unravel involved commercial transactions; 6.

A compensation order should not be granted when it would require the criminal court to interpret written documents to determine theamount of money sought through the order. The loss should be capable of ready calculation. 7. A compensation order should not be granted if the effect of provincial legislation would have to be considered in order to determinewhat order should be made; 8. Any serious contest on legal or factual issues should signal a denial of recourse to an order; 9. Double recovery can be prevented by the jurisdiction of the civil courts to require proper accounting of all sums recovered; and 10.

A compensation order may be appropriate where a related civil judgment has been rendered unenforceable as a result of bankruptcy. This compendium sets out a useful, albeit not exhaustive, list of factors for a court’s consideration in ordering restitution. [86] Mr. Minot’s Restitution Order is a stand alone order. It is not connected to a probation order and there is no time periodstipulated for its payment. At defence counsel’s request, the trial judge left the terms and timing of payment of restitution to the parties,those being Mr. Minot and American Airlines.

[ 87 ] There is no merit to the Appellant’s argument that the trial judge erred in failing to consider Mr. Minot’s ability to pay restitution. The record clearly reveals that the trial judge was advised that Mr. Minot was not only employed as a high-level business executive, but a successful entrepreneur. As well, the trial judge granted Mr. Minot an opportunity to consult with his counsel respecting time to pay the restitution and the fine, and he subsequently granted Mr.

Minot’s requests for a stand-alone restitution order and four months to pay the fine. [ 88 ] None of the cautionary concerns referenced in Devgan , like serious contest on factual or legal issues, disputed expenses, the need to unravel complicated commercial transactions,

interpretation of civil law principles or double recovery issues was presented to the trial judge as an issue in this case. [ 89 ] In these circumstances, it cannot be said that the Restitution Order imposed by the sentencing judge is unreasonable, contrary to law, or otherwise improper. Indeed, considering that a passenger aircraft on an international flight was diverted, the amount of restitution ordered is not inordinately high. [ 90 ] The Appellant asserted no error respecting the trial judge’s imposition of the short custodial term and the Probation Order. [ 91 ] In

summary, in sentencing Mr. Minot, the trial judge committed no error in principle and no error in his consideration of relevant sentencing factors. Neither the fine, the Restitution Order, the custodial term or Probation Order is demonstrably unfit. Accordingly, there is no basis upon which this Court would interfere with the sentence imposed. [ 92 ] In the result, the appeal is dismissed. ______________________________ L. R. Hoegg, J.A. I Concur: _____________________________ M. H. Rowe, J.A. I Concur: _____________________________ C. W. White, J.A.