R. v. Edmunds, 2012 NLCA 26

Date: 20120524 Docket: 11/59 Citation: R. v. Edmunds , 2012 NLCA 26 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN HER MAJESTY THE QUEEN APPELLANT AND MICHAEL EDMUNDS RESPONDENT Coram: Welsh, Rowe and White JJ.A. Court Appealed From: Provincial Court of Newfoundland & Labrador, St. John’s Appeal Heard: March 16, 2012 Judgment Rendered: May 24, 2012 Reasons for Judgment by White J.A. Concurred in by Welsh and Rowe JJ.A. Counsel for the Appellant: Vikas Khaladkar Counsel for the Respondent: Peter Kearsey

White J.A.: INTRODUCTION [ 1 ] On June 22, 2011, Mr. Edmunds pleaded guilty, in the Mental Health Court (a division of the Provincial Court), to one count of breach of trust by a public officer, contrary to

section 122 of the Criminal Code , and two counts of theft under five thousand dollars, contrary to

section 334 (b). On June 23, 2011, the sentencing judge sentenced Mr. Edmunds to a conditional discharge and 24 months probation. The Crown now seeks leave to appeal Mr. Edmunds’ sentence and, if leave is granted, asks this Court to set aside the conditional discharge and instead impose a suspended sentence. [ 2 ] For the following reasons, leave to appeal is granted, the appeal is dismissed, and the sentence imposed is affirmed. LEAVE TO APPEAL [ 3 ] The appeal of sentence only was brought pursuant to section 676(1)(

d) and therefore requires leave of this court. The Crown relied on its argument on the merits of the appeal in support of its leave application. [ 4 ] In considering whether leave to appeal should be granted the test is whether the appeal is frivolous in the sense of having no arguable basis or sufficient merit. ( See R. v.

Bambrick , 2011 NLCA 79 at para. 10 .) Here, the Crown has argued, inter alia , that the Mental Health Court judge erred by imposing a sentence that was demonstrably unfit in all of the circumstances because the sentence imposed, on its face, was outside of the normal range of sentence for the offences set out above. (See R. v. R.G. , 2003 NLCA 73 , 232 Nfld. & P.E.I.R. 273 per Cameron J.A. at para. 18.) In addition this Court has not had an opportunity to comment on principles that may apply particularly to decisions of the Mental Health Court.

Accordingly, it cannot be said that the appeal is frivolous in the sense of having no arguable basis. Leave to appeal the sentence is therefore granted. BACKGROUND / SENTENCING DECISION [ 5 ] Mr. Edmunds was a correctional officer employed at the St. John’s city lockup. On April 29, 2010, B.W. was admitted to the lockup with $293.75 in his possession. At the time he was transferred out of the lockup on May 13, 2010, there was only $3.75 in his personal belongings. J.B. was admitted to the lockup on May 18, 2010, with $95.00 in his possession.

At the time he was transferred on May 25, 2010, there was no money in his personal belongings. The portion of the original property forms setting out the monetary belongings of both inmates had been whited out. The carbon copies of the property forms had the amounts scratched out. [ 6 ] An investigation was conducted by the authorities at the lockup. A number of correctional officers were interviewed. On May 28, 2010, during a meeting requested by Mr. Edmunds, the respondent admitted to a superior officer that he had committed the thefts. On May 31, 2010, Mr. Edmunds made full restitution of the stolen funds.

The investigation continued with 15 more officers being interviewed, bringing the total to 25. [ 7 ] Mr. Edmunds was charged with two counts of breach of trust, contrary to

section 122 of the Criminal Code , and two counts of theft, contrary to

section 334 (

b) of the Criminal Code . [ 8 ] Mr. Edmunds then submitted an application, dated December 7, 2010, seeking to have the matter heard in the Mental Health Court. In a Practice Note issued by the Provincial Court, dated July 8, 2009, this specialized court was described in the following manner: The Court is designed to provide an increased level of support, both medical and community-based, to accused persons appearing before it.

The Mental Health Court is based on the recognition that certain offenders who suffer from a mental disorder may commit offences as a consequence of their mental disorder or due to lifestyle issues related to their mental disorder such as inadequate or inappropriate housing, lack of employment, lack of support, noncompliance with medications and inappropriate self medication with alcohol or drugs.

Health care professionals and corrections personnel will provide medical support and community based support to the individuals who are accepted into the Court. [ 9 ] Entry into Mental Health Court requires a diagnosis of one or more of a group of specific mental illnesses and a nexus between the illness and the offence. [ 10 ] The application was supported by a report from Dr. J. Neil Young, a psychiatrist, who had been treating Mr. Edmunds prior to the commission of the offences. Dr. Young indicated that Mr. Edmunds suffered from a major-depressive disorder and an acute stress disorder.

He further stated his opinion that Mr. Edmunds’ mental illness was connected to the commission of the offences. [ 11 ] The Crown consented to the application and the matter was moved to the Mental Health Court. [ 12 ] On June 22, 2011, at the hearing of this matter, the information was subsequently amended so that the dates for the first charge of breach of trust, count number two on the information, subsumed both of the charges of breach of trust. The fourth count was struck off the information. Mr.

Edmunds pleaded guilty to the remaining count of breach of trust and the two counts of theft. [ 13 ] The unchallenged opinion of Dr. Young was relied on by the sentencing judge in arriving at a determination that Mr. Edmunds was suffering from a mental illness that contributed to his commission of the offences. On the hearing of this appeal, the Crown appropriately conceded that if it had wished to question the evidence of Dr.

Young, Crown counsel could have called him as a witness at the sentencing hearing. [ 14 ] In his oral decision, delivered on June 23, 2011, the Mental Health Court judge noted: So in this case, we’re in the situation where Mr. Edmunds has taken responsibility for his offense and has addressed his illness. He’s entered into a treatment program voluntarily that has included weekly one hour sessions with a psychiatrist and has been [to] all the

treatments. He has undertaken a course of treatment with his psychologist and he has disclosed all of this information to the CourtSupport Team to demonstrate both his compliance and his commitment to the process. Mr.

Edmunds has also suffered significantemployment consequences in the sense that he has, as been evidenced by the letter put in at this sentence hearing, already beensuspended from work and lost three months pay… … This is a situation where someone who has been suffering from a psychiatric illness finds themselves in the position of havingcommitted an offense, largely generated as a result of their illness or linked that way from the expert opinion. So this is a very unique setof circumstances. This attempt to address the issues through a therapeutic court also makes it unusual in the sense that Mr.

Edmunds hasdone things that he wouldn’t have ordinarily had to do in another court setting. He has voluntarily agreed to, and followed a course oftreatment, that’s something that can’t be ordered by the court. [15] He sentenced Mr. Edmunds to a conditional discharge and 24 months probation with a requirement to follow up withcounseling or treatment as directed. ISSUES [16] The Crown raises the following issues:

(1) Was a conditional discharge inappropriate in these circumstances?

(2) Did the sentencing judge overemphasize certain mitigating factors and/or underemphasize certain aggravating factors?

(3) Did the sentencing judge impose a sentence that was demonstrably unfit in all of the circumstances? ANALYSIS Was a conditional discharge inappropriate in these circumstances? [17] Subsection 730(1) of the Criminal Code provides for the ordering of absolute or conditional discharges where certainconditions are satisfied.

The subsection states: Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which aminimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court beforewhich the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, insteadof convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation ordermade under subsection 731(2). [18] The circumstances in which a court may order a discharge were discussed by this Court in R. v.

Elsharawy (1997), (NL CA), 119 C.C.C. (3d) 565 (Nfld. C.A.). There, Green J.A., as he was then, noted that: [3] For the Court to exercise its discretion to grant a discharge under s. 730 of the Criminal Code, the Court must consider that thattype of disposition is: (

i) in the best interests of the accused: and (ii) not contrary to the public interest. The first condition presupposesthat the accused is a person of good character, usually without previous conviction or discharge, that he does not require personaldeterrence or rehabilitation and that a criminal conviction may have significant adverse repercussions.

The second condition involves aconsideration of the principle of general deterrence with attention being paid to the gravity of the offence, its incidence in thecommunity, public attitudes towards it and public confidence in the effective enforcement of the criminal law. See R. v. Fallofield(1973), (BC CA), 13 C.C.C. (2d) 450 (B.C. C.A.) and R. v. Waters (1990), (SK KB), 54 C.C.C.(3d) 40 (Sask. Q.B.). - best interests of the accused [19] The Crown did not challenge that Mr. Edmunds is a person of “good character” who had no prior convictions at the time thatthese offences were committed.

Further to this, he was and remains employed. [20] As to the impact that a criminal conviction would have on the offender, the Crown submitted in its factum that a conviction forthis offence would not threaten Mr. Edmunds’ livelihood. Mr. Edmunds replied that the effect of a conviction on his currentemployment or future prospects “is a matter of speculation”. There does not appear to have been any evidence led on this issue. In somecircumstances, evidence of particular effects on the offender will be required if the offender is relying on such factors.

However, asentencing judge may take judicial notice of the fact that a criminal conviction will have a negative impact on a person’s future, whetherrelated to employment opportunities, travel, and so forth. [21] The Crown further submitted that the need for specific deterrence in this case was not given sufficient weight by the sentencingjudge as Mr. Edmunds will continue to be employed with the lockup and the opportunity to engage in similar conduct will arise again. This position is not persuasive. As Green J.A., as he was then, noted in R. v.

Peters, 2000 NFCA 55, 194 Nfld. & P.E.I.R. 184: [18] Deterrence and punishment assume less importance in cases of mentally ill offenders. See R. v. Hynes (1991), (NL CA), 89 Nfld. & P.E.I.R. 316 (NF CA). In R. v. Robinson (1974), (ON CA), 19 C.C.C. (2d) 193 (Ont.CA) the Court emphasized that in cases where offenders commit crimes while they are out of touch with reality due to mental illness,specific deterrence is meaningless to them.

Further, general deterrence is unlikely to be achieved either since people with mentalillnesses that contribute to the commission of a crime will not usually be deterred by the punishment of others. As well, severepunishment is less appropriate in cases of persons with such mental illnesses since it would be disproportionate to the degree ofresponsibility of the offender. This decreased emphasis on punishment and deterrence in these circumstances is consistent with the

proportionality principle in s. 718.1 of the Criminal Code. [19] Thus, the mental illness of an offender will often be considered a mitigating factor in sentencing even though it is not of the sortthat would establish a verdict of not criminally responsible on account of mental disorder at the time of the commission of the offence. The focus in sentencing such offenders may properly therefore be placed on mechanisms that will promote rehabilitation and treatment,rather than on punishment.

This is especially so where lengthy prison terms are often regarded as counterproductive, even in cases notinvolving the mentally afflicted. See R. v. Gladue (1999), (SCC), 133 C.C.C. (3d) 385 (SCC) at p. 408. [22] While Mr. Edmunds may not have been “out of touch with reality”, as was Mr. Peters, the evidence, which was not challengedby the Crown, showed that his mental illness contributed to his commission of the offence. Dr. Young, in his report, indicated that Mr.Edmunds’ mental illness, combined with his particular circumstances, resulted in behavior that was “quite out of character”.

Where, ashere, the offender has a lesser moral blameworthiness, the usefulness and appropriateness of specific deterrence is much reduced and theCourt may properly place greater emphasis on rehabilitation. [23] Mr. Edmunds admitted his guilt and voluntarily sought treatment for the mental illness that was found to have contributed tothe commission of these offences. The conditional discharge and probation order imposed had a number of provisions aimed at achievingMr. Edmunds’ rehabilitation.

In the circumstances, the Mental Health Court judge did not err by failing to give sufficient weight tospecific deterrence. [24] Considering the above, it was open to the sentencing judge to find that a conditional discharge was in Mr. Edmunds’ bestinterests. - not contrary to the public interest [25] This condition gives rise to a consideration of the need for general deterrence. The Crown submits, and I agree, that a breach oftrust by a public officer, certainly by one in a position of authority over a vulnerable group of individuals, is a very serious offence that isnot to be taken lightly.

The Crown submits that this supports the contention that the sentencing judge failed to give adequate weight tothe need for general deterrence. The problem with the Crown’s position is, again, that it runs contrary to the principles expressed inPeters. Persons suffering from a mental illness which contributes to their commission of crimes are less likely to be deterred by theimposition of a harsher sentence on another individual. [26] Further, “most people understand that the mentally ill require treatment and supervision, not punishment”: see R. v. Valiquette(1990), (QC CA), 60 C.C.C. (3d) 325 (QCCA) at 331.

In my view, the public’s confidence in the effectiveenforcement of the criminal law will not be undermined where the Mental Health Court emphasizes rehabilitation over deterrence in suchcircumstances. [27] Considering the factors set out in the relevant case law, notably Elsharawy, it cannot be said that the sentencing judge erred inimposing a conditional discharge in these circumstances.

Did the sentencing judge overemphasize certain mitigating factors and/or underemphasize certain aggravating factors? [28] It appears that the Crown’s submissions on this point boil down to this: the imposition of a conditional discharge in thesecircumstances necessarily implies that the sentencing judge overemphasized Mr. Edmunds’ mental illness and failed to give properconsideration to the fact that the offences involved an abuse of a position of trust.

In support of its submissions on this point it notes thatthe judge only referred to the aggravating factors once, when he stated: So, in relation to these offences, they arose in the course of Mr. Edmund’s employment as Mr. Edmunds is, in fact an employee with theProvincial Government, was working at the Penitentiary, and the offences themselves are very serious in the sense that they do involve asignificant breach of trust, that’s acknowledged. [29] I, however, agree with the submissions of Mr.

Edmunds’ counsel when he suggests that the fact that the sentencing judgereferred to these factors only once does not imply that he did not consider them fully. In fact, this indicates that the sentencing judge didconsider the issue, and properly classified these offences as serious in nature. [30] The Crown further directed the Court’s attention to R. v. Harding, 2006 SKCA 118, 213 C.C.C. (3d) 543.

In that case, atparagraphs 19-22, Cameron J.A. had noted that: [19] The point is that, while the trial judge might appropriately have taken the accused’s gambling disorder to have diminished hisdegree of responsibility to some extent, we are of the respectful opinion the judge made too much of this in the context of imposing asentence consistent with the fundamental principle of sentencing. [20] Now, in addition to having to give effect to the fundamental principle, it was also incumbent upon the trial judge, in applying theconditional sentencing provisions of

section 742.1, to give adequate expression to another principle of sentencing, namely that mentionedin

section 718.2 (a)(iii): An abuse of a position of trust constitutes an aggravating factor and, as such, calls for an increased sentence. [21] The courts in this and other Canadian jurisdictions have long treated this as [a] serious aggravating factor in cases featuring fraudsof this nature, committed in circumstances of this kind. Examples include R. v. Moccasin and R. v. Night (2006), 2006 SKCA 5, 205 C.C.C. (3d) 1 (Sask.C.A); R. v. Gopher, 2006 SKCA 86; R. v. McTighe (2005), 2005 ABCA 30 , 193 C.C.C. (3d)522 (Alta. C.A.); and R. v. Pierce (1997), (ON CA), 114 C.C.C. (3d) 23 (Ont. C.A.).

Indeed, these cases and those towhich they refer suggest that the abuse of a position of trust in the context of frauds of this nature and scale commonly calls for a periodof incarceration in the absence of exceptional circumstances. [22] The trial judge recognized the accused’s position of trust, and breach of trust, but in our judgment he did not give it the weight itmerited in light of cases such as these, and those to which they make reference. In other words he placed too little emphasis on this

factor. [31] As Mr. Edmunds points out in his factum, however, the Harding case involved amounts in excess of $300,000. Thus, where theSaskatchewan Court of Appeal stated, “abuse of a position of trust in the context of frauds of this nature and scale commonly calls for aperiod of incarceration”, it is not referring to frauds or thefts involving small amounts, as was the case here. The sentencing guidanceprovided by that case is therefore of limited value. [32] This case is closer to R. v McSween (2002), 2002 NSSC 225 , 208 N.S.R. (2d) 377 (NSSC), referred to by Mr.Edmunds.

McSween held himself out as a dispensing pharmacist and asked a pharmacist at another pharmacy to provide him withDilaudid tablets, claiming his pharmacy had run out of the drugs and that a customer required them. McSween had a drug addiction andthe drugs were for his personal use. As in this case, McSween voluntarily sought treatment for his addiction, pleaded guilty and had noprior criminal record.

In discussing the availability of a conditional discharge on those facts, LeBlanc J. stated: [24] To my mind, the only exceptional feature of this case is that the appellant, as a pharmacist, abused his position and represented thathe was obtaining drugs for a patient rather than for himself. I believe that to foreclose the chance of a discharge from individuals whohave breached positions of trust would be contrary to the principles of sentencing in sections 718 to 718.2 of the Criminal Code.

Iconclude that Judge Williams erred in principle when he concluded that the appellant’s profession was a complete bar to a conditionaldischarge. Had Mr. McSween not been a pharmacist, but convinced a pharmacist that he was one, then he would likely have received aconditional discharge. (Emphasis added.) [33] I have concluded that the sentencing judge’s imposition of a conditional discharge did not signal an overemphasis on Mr.Edmunds’ mental illness or an underemphasis of Mr. Edmunds’ abuse of his position of trust. The sentencing judge properly consideredthe relevant factors.

Did the sentencing judge impose a sentence that was demonstrably unfit in all of the circumstances? [34] The Crown further submitted that a conditional discharge was a demonstrably unfit and clearly unreasonable sentence in thesecircumstances, relying on R. v. Leblanc, 2003 NBCA 75, 180 C.C.C. (3d) 265; R. v. Cusack (1978), (NS CA), 41C.C.C. (2d) 289 (NSCA); R. v. Gorman, 2009 NSPC 55; and R. v. Riley (1986), 59 Nfld. & P.E.I.R. 97 (Nfld. Dist.

Ct.). [35] In Leblanc, a police officer responded to a fire in progress at a home, simulated involvement in police work, proceeded torummage through the home owner’s effects, and stole a number of objects as well as $83 in cash. The police officer, in the course of theinvestigation, falsely implicated members of the fire department. He subsequently pleaded guilty to a charge of breach of trust, contraryto

section 122 of the Criminal Code. The Court of Appeal noted that although Mr. Leblanc was suffering from moderate depression, itplayed no role in his commission of the offence. The Court of Appeal allowed the appeal from sentence and varied the conditionaldischarge to three months imprisonment. In the course of his reasons, Chief Justice Drapeau stated: [33] Breach of trust is an indictable offence.

Under s. 122, the offender is liable to imprisonment for a term not exceeding five years.In my view, only the most exceptional circumstances can justify a discharge, absolute or conditional, for breach of trust by a policeofficer in the execution of his duties.

There are no such circumstances in the case at bar. [36] I would agree with the Crown that similar considerations may apply to a breach of trust committed by a correctional officer.There are, however, exceptional circumstances present in this case which justify the imposition of a conditional discharge: the existenceof a mental illness which, unlike Leblanc, was found to have contributed to the commission of the offence. Leblanc is distinguishable onthat basis. [37] The Cusack, Gorman and Riley cases can be distinguished on the same basis.

While they all consider the increased culpabilityof persons who breach the public’s trust, none of them addresses the need for the decreased reliance on deterrence in the sentencingprocess where, as is the situation here, the offender suffers from a mental illness which contributed to the commission of the offences. Indeed, to eliminate conditional discharge as a legitimate sentencing option where mental illness contributes to the commission of theoffence is arguably inconsistent with the general approach to sentencing in such cases. See above at paragraphs 21-23 and 25-26. [38] In

summary, the Crown has not pointed the Court to any binding or persuasive authorities that would suggest that a conditionaldischarge was a demonstrably unfit and clearly unreasonable sentence in these circumstances. GENERAL OBSERVATIONS [39] The Provincial Court of Newfoundland and Labrador sets out in the Practice Note I have referred to (and also on its website)the purpose of the Mental Health Court.

This “Specialty Court” established in 2005, is a project of the Provincial Court, the PublicProsecutions Division of the Department of Justice, the Mental Health Project of the Newfoundland and Labrador Legal AidCommission, Eastern Health, and Corrections and Community Services. As such, the project is a collaborative effort of all the agenciesfrequently involved when criminal charges and mental health issues intersect. [40] In this case, the involvement of the Mental Health Court is a success story. Mr. Edmunds has continued treatment and remainsemployed.

Imposition of a sentence resulting in a criminal record would have no positive benefit to society. The diversionary processworked. All the agencies which participated in setting up the Mental Health Court have realized the objective of their efforts. [41] In R. v. J.J., 2004 NLCA 81, 244 Nfld. & P.E.I.R. 24 Rowe J.A. of this Court spoke favourably about the potential for thespecialized process involved with Sentencing Circles.

In like manner, I am impressed with the specialized Mental Health Court process.In appropriate circumstances, allowing diversion to such a “Specialty Court” has a lasting benefit to the community by recognizing theimpact of mental illness and encouraging treatment and rehabilitation of a person who because of such illness has acted in anuncharacteristic manner.

CONCLUSION AND DISPOSITION [ 42 ] For the foregoing reasons, leave to appeal the sentence is granted, the appeal is dismissed, and the sentence imposed is affirmed. _________________________ C.W. White, J.A. I concur: ___________________ B.G. Welsh, J.A. I concur: ____________________ M.H. Rowe, J.A.