Docket: 1875 Brandon Lee Omoth Appellant - v. -, 2011 SKCA 42

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 42 Date: 20110406 Between: Docket: 1875 Brandon Lee Omoth Appellant - and - Her Majesty the Queen Respondent Coram: Lane, Jackson and Richards JJ.A. Counsel: Aaron Fox, Q.C. for the Appellant Kim Jones for the Crown Appeal:

From: Provincial Court Heard: December 9, 2010 Disposition: Dismissed Written Reasons: April 6, 2011 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Lane In Dissent: The Honourable Madam Justice Jackson Richards J.A. I. Introduction [ 1 ] The appellant, Brandon Omoth, pled guilty to two counts of mischief and one count of uttering a death threat. In response to a joint submission, the judge imposed a 12-month conditional sentence and made a weapons prohibition order. Some time later, Mr. Omoth’s co-accused was sentenced by a different judge.

She did not make a weapons prohibition order. That led Mr. Omoth to launch this appeal. He says the principle of parity in sentencing is violated by the fact he is the subject of a prohibition order while his co-accused is not. He asks the Court to intervene on his behalf. [ 2 ] I have read my colleague Jackson J.A.’s reasons for decision but find myself in respectful disagreement with her conclusion that Mr. Omoth’s appeal should be allowed. In my view, the key to this appeal is the fact that Mr. Omoth’s sentence was the product of a joint submission.

As explained below, the nature of such submissions satisfactorily explains the difference between Mr. Omoth’s sentence and that of his co-accused. [ 3 ] I would dismiss Mr. Omoth’s appeal. II. Relevant Facts [ 4 ] The circumstances surrounding the commission of the offences in issue are set out in Jackson J.A.’s reasons. I need not repeat them. [ 5 ] However, by way of background, I do wish to emphasize that the terms of the sentence under appeal reflect a joint submission made by the prosecutor and Mr.

Omoth’s counsel. [ 6 ] At the outset of the sentencing hearing, immediately after pleas had been entered, the prosecutor said, “[w]e do have a joint submission on sentencing.” He then referred briefly to the facts (the sentencing judge was apparently already familiar with them) and again noted the existence of a joint submission.

At this point, the prosecutor took the judge through the proposal for a 12-month conditional sentence order, made reference to restitution (indicating it would amount to one-half of the property damage sustained by the victims) and then said, “[t]here’s -- as well as part of the joint submission, Your Honour, we’re seeking a ten year weapons prohibition.” There then followed a discussion among the judge, the prosecutor and Mr. Omoth’s counsel as to the offence or offences that would ground the weapons prohibition order and as to the Criminal Code

section under which it would be made. [ 7 ] Next, Mr. Omoth’s counsel made submissions as to why the joint submission should be endorsed and concluded by stating “… the joint submission I would ask that Your Honour accept it and impose a sentence as -- as requested.” The judge then asked Mr. Omoth if he had anything to add and Mr. Omoth said he was sorry “for everything that’s happened.” [ 8 ] The judge proceeded to render his decision and to accept the joint submission. When he came to the weapons prohibition order, he

referred to s. 110 of the Code and, with the assistance of the prosecutor and Mr. Omoth’s counsel, determined the count on which the order would be based. After that, he explained as follows: … And, sir, what that will be is under the firearms

Section 110 I’m making an order prohibiting you from possess ( sic ) any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, explosive substance, the period begins today and ends… Ten years after completion of your conditional sentence order. [ 9 ] When asked by the judge if he had any questions about the order, Mr. Omoth said “[n]o, I don’t think so.” [ 10 ] As indicated at the outset of these reasons, Robert Heustis (Mr. Omoth’s co-accused) was sentenced at a later date.

He pled guilty to two counts of mischief, one count of uttering death threats and one count of common assault. He was given a 15-month conditional sentence. The sentencing judge chose not to impose a weapons prohibition order. III. Analysis [ 11 ] Mr. Omoth grounds his appeal entirely on the concept of “parity.” Put simply, he says he should not be burdened by a weapons prohibition order when Mr. Heustis is not. In this regard, Mr. Omoth relies on s. 718.2(

b) of the Code . It reads as follows: 718.2 A court that imposes a sentence shall take into consideration the following principles: … (

b) a sentence should be similar to sentences imposed on similar defenders for similar offences committed in similar circumstances; [ 12 ] In my view, any consideration of s. 718.2(

b) in the context of this appeal must be significantly conditioned by the fact that Mr. Omoth’s sentence was imposed in response to a joint submission. On this point, I note there is no suggestion here of any infirmity in the nature or quality of the discussions leading to the joint submission. Mr. Omoth was represented by able and experienced counsel and there is no hint of any problematic conduct on the part of the prosecutor such as, for example, failing to make proper disclosure.

In short, there was nothing in the procedural history or underpinnings of the joint submission which, in any way, would operate as a basis for undermining it. [ 13 ] Nor, apparently, is there anything in the substance of the sentence imposed here that, seen in isolation from Mr. Heustis’ sentence, is objectionable to Mr. Omoth. More to the point, Mr. Omoth does not suggest that, in and of itself, the weapons prohibition order was unfit or based on an error of principle. Indeed, Mr. Omoth apparently had no concerns about his sentence until he learned that no prohibition order had been imposed on Mr. Heustis.

Only this issue of “parity” leads Mr. Omoth to suggest his sentence should be modified. [ 14 ] Mr. Omoth is a recreational hunter. That said, we have no information as to how much he hunted before his conviction or how much he would hunt, or what role hunting would play in his life, if the weapons prohibition order was set aside. In other words, we know little about the practical or real world effect the order will have on Mr. Omoth. The Nature of Joint Submissions [ 15 ] In assessing Mr. Omoth’s argument, it is useful to begin by looking more closely at the nature of joint submissions.

They have sometimes been subject to criticism but, at this point, are clearly an established and important feature of the Canadian sentencing system. [ 16 ] A disposition of charges following plea discussions is generally recognized as serving a number of useful ends including: (

a) resolving charges promptly, (

b) avoiding the negative impacts of pre-trial custody on offenders who are denied release pending trial, (

c) protecting the public from those offenders who might commit crimes while on pre-trial release, (

d) preserving the public resources consumed by trials, (

e) sparing victims the ordeal of giving evidence, (

f) allowing offenders to demonstrate an early and meaningful sense of remorse, and (

g) providing the offender and the victim with measure of certainty about the ultimate resolution of the charges. See: Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (Toronto: Ontario Ministry of the Attorney General, 1993) at pp. 289-290.

[17] However, joint submissions do not just happen. They are the product of an identifiable dynamic. Before the relevant discussionstake place, the offender bears the risk of conviction and a heavy sentence while the prosecutor bears the risk of a (sometimes costly) trialfollowed by an acquittal or a light sentence. Once acted upon by the court, a joint submission puts in place a resolution of the chargesthat is acceptable to both the offender and the prosecutor.

Thereafter, and of necessity, the offender must accept that a trial might haveresulted in an acquittal or a lighter sentence than the one actually imposed and the prosecutor must accept that the sentence might havebeen higher if the case had gone to trial. This is the nature of the process. [18] In general terms, the negotiations or discussions underpinning a joint submission can only be effective if both the offender and theprosecutor are able to proceed with a considerable degree of confidence that their agreement will in fact be implemented.

An offenderwill not undertake to plead guilty in exchange for a specific sentence if there is a meaningful risk that, in fact, a different and highersentence will be imposed. The prospect of the elevated sentence will force the offender to reassess his or her personal risk-rewardcalculations and may cause him or her to proceed to trial in hope of receiving an acquittal or a more moderate sentence. In the same way,a prosecutor will be disinclined to agree to a sentencing arrangement if there is a meaningful risk that the offender will ultimately securea lighter sentence than the one agreed upon.

Given a choice between the lighter sentence on the one hand, and the possibility of a trialand a heavier sentence on the other, a prosecutor will at least sometimes choose to proceed to trial. Briefly put, a lack of predictability orconfidence as to the sentence ultimately imposed in the wake of a sentencing agreement will hamstring the plea discussion process. [19] This is why courts are very slow to reject joint submissions. As the Alberta Court of Appeal said in R. v.

C. (G.W.), 2000 ABCA333, [2001] 5 W.W.R. 230 at para. 17, “[t]he certainty that is required to induce accused persons to waive their rights to a trial can onlybe achieved in an atmosphere where the courts do not lightly interfere with a negotiated disposition that falls within or is very close tothe appropriate range for a given offence.” Similarly, the Manitoba Court of Appeal observed in R. v. Pashe (S.J.) (1995), (MB CA), 100 Man.

R. (2d) 61 at para. 11 that “[t]he bargaining process is undermined if the resulting compromiserecommendation is too readily rejected by the sentencing judge.” In keeping with these concerns, this Court has said on several occasionsthat a joint submission should not be rejected unless the sentence recommended is unfit or otherwise contrary to the public interest. See,for example, R. v. Kasakan, 2006 SKCA 14, [2006] 8 W.W.R. 23 at para. 15; R. v. B.L., 2008 SKCA 122, 314 Sask. R. 276 at para. 6. The Problem with Mr. Omoth’s Position [20] As noted above, Mr.

Omoth does not say that, in and of itself, the weapons prohibition order imposed on him is unfit. He asks forthe order to be overturned only because Mr. Heustis managed to avoid a similar order. In other words, Mr. Omoth asks this Court toendorse an approach under which an offender would be entitled to “lock in” a maximum sentence by way of a plea bargain but thenclaim a right to have his or her sentence reduced on appeal if a co-accused subsequently receives a more moderate sentence. [21] This line of argument sits on a very unsteady foundation.

First, as indicated earlier, every offender who elects to proceed by way ofa joint submission necessarily accepts the risk that his or her sentence might have been less severe if he or she had gone to trial (orperhaps been faced with a different prosecutor or represented by a different lawyer). This is part of the basic calculus which drives pleadiscussions and it is inherent in the nature of joint submissions. Mr. Omoth’s approach self-evidently would tend to upset the dynamicsof this process and make joint submissions harder to achieve.

In the long run, it is difficult to see this as being in the overall interests ofthe administration of criminal justice. [22] Second, the prosecutor in this case might not have agreed to make a joint submission (or to make one proposing only a 12-monthconditional sentence) if he had known that Mr. Omoth could reject their agreement in the event Mr. Heustis received a more moderatesentence.

To the extent the joint submission represents a “bargain,” it seems unfair, at some level, to hold the prosecution to its side ofthe arrangement if an offender is not held to his or her side of it. [23] Third, and on a related point, we do not know how important the weapons prohibition order was to the prosecutor’s decision toagree to a joint submission on the terms presented to the sentencing judge. There is reference in Felicia Kipling’s victim impactstatement to a threat to “shoot up” her house with her children inside. Perhaps this threat was made by Mr. Omoth rather thanMr. Heustis.

We simply do not know on the basis of the record before us. Put differently, it is at least possible that (in relation to theweapons prohibition order) Mr. Omoth and Mr. Heustis were not as “similarly situated” as might appear on the surface of matters. Accordingly, the prosecutor might have had special reasons to seek a weapons prohibition order against Mr. Omoth or to see such anorder as an important part of the sentencing proposal. We are left to speculate in this regard.

[24] Fourth, Mr. Omoth’s position raises the question of whether the Crown would have been able to ask that his sentence be increasedif Mr. Heustis ultimately had received a heavier sentence than the one imposed on Mr. Omoth. After all, parity is a two-way street. Alternatively, it is also necessary to ask whether Mr. Heustis could have successfully appealed his sentence if it had been more severethan Mr. Omoth’s sentence. In other words, Mr.

Omoth’s argument tends to suggest the possibility that the first joint submissionaccepted in a case like this one will, or should, effectively determine the precise detail of the approach that prosecutors, defence counseland sentencing judges must take in dealing with co-accused. It seems doubtful that this would be a good thing. The Principle of Parity [25] I agree entirely with Jackson J.A.’s point that parity in sentencing is very important.

It is obviously an essential consideration in theadministration of criminal justice and unjustified differences in sentencing can be very corrosive of both public and offender confidencein the system. I agree too that concerns about parity can be particularly acute in the case of co-accused. [26] That said, s. 718.2(

b) of the Code is not absolute. Specifically, it does not automatically require that precisely the same sentence beimposed on similarly situated co-offenders. Rather, it says a court must take into consideration the principle that a sentence should be“similar” to sentences imposed on similar offenders for similar offences committed in similar circumstances. On this point, Lamer C.J.C.observed as follows in R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at p. 567: … Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similarcrime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected tovary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencinggoals will depend on the needs and current conditions of and in the particular community where the crime occurred.

For these reasons,consistent with the general standard of review we articulated in Shropshire, I believe that a court of appeal should only intervene tominimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from thesentences customarily imposed for similar offenders committing similar crimes. [emphasis added] [27] With all of this in mind, I believe the difference between the sentences imposed on Mr. Omoth and Mr. Heustis can be satisfactorilyexplained in light of the nature of joint submissions. Mr.

Omoth, with the assistance of counsel, arranged to enter guilty pleas in relationto charges of mischief and uttering death threats. He did so in exchange for the prosecutor’s agreement to recommend a sentenceinvolving, among other things, a 10-year weapons prohibition order. (As noted, Mr. Omoth does not suggest that, at the time it wasimposed, this sentence was unfit or based on any error or unfairness.) By entering this arrangement, Mr. Omoth avoided the possibilityof a heavier sentence – including a sentence involving a jail term.

But, at the same time, he necessarily accepted the risk that his co-accused might get a lighter sentence. The fact that this ultimately came to pass in relation to the weapons prohibition order does notmean Mr. Omoth’s sentence is unfit or cannot be justified. Rather, the possibility of Mr.

Heustis receiving a somewhat differentsentence was inherent in the very nature of the joint submission process. [28] None of this is to say that an offender who participates in a joint submission can never successfully seek to vary his or her sentenceeven in circumstances where a similarly situated co-accused subsequently receives a dramatically lower sentence.

However, this Courtshould proceed cautiously in appeals of the sort advanced here lest, in responding to them, it damages the general underpinnings of pleanegotiations. [29] In my opinion, the facts of this case do not present a situation warranting a departure from the generally accepted approach that thisCourt takes to sentences imposed in response to joint submissions. Acceding to Mr. Omoth’s argument would inappropriately underminethe basic dynamics of the process on which such submissions rest. Ultimately, this would not be in the interests of either accused personsor the larger community. IV.

Conclusion [30] The fact that Mr. Omoth’s sentence was the product of a joint submission is the central consideration in assessing the merits of hisarguments. I would dismiss his appeal.

DATED at the City of Regina, in the Province of Saskatchewan, this 6th day of April, A.D. 2011. “RICHARDS J.A.” RICHARDS J.A. I concur “LANE J.A.” LANE J.A. Jackson J.A. (in dissent) I. Introduction [ 31 ] This is an appeal from a 10-year s. 110 weapons prohibition, which was imposed on Brandon Omoth, following the Court’s acceptance of a joint sentencing submission. Mr. Omoth pled guilty to two counts of mischief and one count of uttering a threat to cause death. Subsequent to Mr. Omoth’s sentencing, a co-accused, Robert Heustis, pled guilty to the same offences, plus common assault, before a different judge.

Despite Mr. Heustis’s additional charge, the second sentencing judge did not impose a weapons prohibition. Mr. Omoth appeals on the basis that he was treated differently than his co-accused, and his circumstances and that of his offences do not justify the difference. [ 32 ] The issue presented by this appeal is the following: whether, and in what circumstances, an appeal court should set aside a sentence imposed following a joint submission when a co-accused who has refused a joint submission subsequently receives a more lenient sentence.

In my respectful view, the case law permits an appeal court to set aside the first sentence and give effect to the principle of parity, notwithstanding the fact of the joint submission. Indeed, it is only an appeal court that can address the issue of parity when disparity arises as a result of the second sentence. The fact that the sentence is the product of a joint submission is an important factor that must be considered, but it is not determinative of the outcome. The Court must weigh all of the circumstances. Sustaining Mr.

Omoth’s sentence solely on the basis of the joint submission would be contrary to the public interest in this case given: (

i) the fitness of the second sentence; and (ii) the extent of the disparity between the two sentences. In the result, I would vacate the s. 110 order imposed upon him. II. Overview [ 33 ] On October 23, 2008, Mr. Omoth and Mr. Heustis were hunting in the Weekes area. At some time in the evening, they attended a bar in Weekes where they became highly intoxicated. An altercation—described by the Crown as a “consensual bar fight”—broke out. After someone intervened to break up the fight, Mr. Heustis continued to punch Jason Kipling. Following the fight, Mr. Omoth and Mr.

Heustis proceeded to a house, which they believed to be Mr. Kipling’s residence. They uttered threats, including a threat to one Felicia Kipling to cause death to Jason Kipling, and they slashed the tires of three cars and damaged the house. No physical altercation took place at the house. [ 34 ] On April 29, 2010, Mr. Omoth pled guilty to an amended information containing these charges: (

i) uttering a threat to Felicia Kipling to cause death to Jason Kipling, contrary to s. 264.1(1) (

a) of the Criminal Code ; (ii) committing mischief over $5,000, by wilfully damaging a dwelling house, contrary to s. 430(3) of the Criminal Code ; and (iii) committing mischief under $5,000, by wilfully damaging three motor vehicles, contrary to s. 430(4) of the Criminal Code . [ 35 ] Crown counsel and counsel for Mr. Omoth presented the learned Provincial Court judge with a joint submission as to sentence: a conditional sentence of imprisonment to be served in the community for 12 months, plus a 10-year firearms prohibition commencing at the expiry of the conditional sentence order. Mr.

Omoth also agreed to pay one-half of the costs of repairing the damage to the house and vehicles in the amount of $1,787.73 , as restitution. The judge accepted the joint submission, and imposed a sentence accordingly. [ 36 ] Five days later, on May 4, 2010, Mr. Heustis pled guilty to the same charges as Mr. Omoth, plus the charge of common assault for having punched Jason Kipling after the fighting had stopped. Counsel agreed that a conditional sentence should be imposed, and that Mr.

Heustis should pay restitution in the amount of $1,787.73, but counsel did not agree as to the length of the sentence, or as to the need

for a weapons prohibition. The Crown sought an 18-month conditional sentence against Mr. Heustis, a greater sentence than thatreceived by Mr. Omoth, because of two factors: (

i) Mr. Heustis’s plea to the additional charge of common assault; and (ii) the fact thatMr. Heustis had a prior criminal record for a common assault, albeit dated, whereas Mr. Omoth did not. The Crown sought a 10-yearfirearms prohibition in relation to Mr. Heustis, as it had with Mr. Omoth. [37] This learned Provincial Court judge imposed a 15-month conditional sentence, but she declined to make a weapons prohibitionorder on the basis that Mr. Heustis had taken responsibility for the offence “in the most impressive fashion.” She also made reference tothe fact that no firearm was used in the incident.

She did, however, make it a term of the conditional sentence order that Mr. Heustiswould not have in his possession any firearm or imitation thereof, for the duration of the order. [38] On May 5, 2010, the day after Mr. Heustis’s sentencing, Mr. Omoth contacted his counsel to advise him of the difference betweenhis sentence and that received by Mr. Heustis, regarding the weapons prohibition. Mr.

Omoth immediately instructed his counsel toappeal the firearms prohibition order only, on the principal ground that it was “unreasonable in light of the fact that it is inconsistent withthe sentence imposed on the co-accused, Robert Heustis.” III. Analysis [39] The 1995 Criminal Code amendments codify the principle of parity in sentencing: 718.2 A court that imposes a sentence shall also take into consideration the following principles: ... (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; [40] As Clayton C. Ruby et al, the authors of Sentencing, 7th ed. (Markham, Ont., LexisNexis Canada, 2008), state (at para. 2.21): “[t]he principle of parity has developed to preserve and ensure fairness by avoiding disproportionate sentences among convicted personswhere, essentially, the same facts and circumstances indicate equivalent or like sentences.” Parity in sentencing is a long-standingprinciple (see, e.g., from this Court, R. v.

Baldhead, (SK CA), [1966] 4 C.C.C. 183 at p. 187 and R. v. Morrissette(1970), (SK CA), 1 C.C.C. (2d) 307 at pp. 311-12). [41] Parity in sentencing is grounded in a concern for the preservation of respect for the administration of justice. For society as a whole,there is a risk of a loss of confidence in the fairness of the justice system when parity among sentences is not respected, and disparity isnot effectively explained. For an individual accused, disparity without effective explanation can lead to a sense of grievance. As ParkerL.C.J. stated in R. v. Coe (1969), 53 Cr. App.

R. 66, at p. 71: The Court on many occasions, ... has reduced a sentence to bring it more in line to the sentence imposed on a co-accused; it issomething that this Court tries to do in the general run of cases on the basis that only thereby can a sense of grievance be averted....[Emphasis added.] The sense of grievance is particularly justifiable in the case of co-accused, where their participation in the underlying event giving rise tothe charges against them is identical, and where nothing differentiates the offenders. [42] There are limits, however, to the principle of parity—even in the context of co-accused.

One limit is that a court may decide not tovary a sentence to achieve parity when the disparity results from a comparison with a sentence that is inappropriate or inadequate. InCoe, for example, the Court refused to reduce a sentence to achieve parity based on its view that the sentence to which it was beingcompared was wholly inadequate. This Court took a similar approach in R. v. Knife (1982), (SK KB), 16 Sask. R. 40,at pp. 43-44. These cases demonstrate that this Court, in deciding whether to give effect to the principle of parity in Mr. Omoth’s case,should consider the adequacy of Mr.

Heustis’s sentence. [43] A weapons prohibition order was not mandatory in Mr. Heustis’s case. It was a matter of discretion to be exercised according to theterms of s. 110(1)(

a) of the Criminal Code, which required the sentencing judge to consider “whether it is desirable, in the interests ofthe safety of the person or of any other person” to make an order against Mr. Heustis: Discretionary prohibition order 110.

(1) Where a person is convicted, or discharged under

section 730, of (

a) an offence, other than an offence referred to in any of paragraphs 109(1)(a), (

b) and (c), in the commission of which violence againsta person was used, threatened or attempted, or

(

b) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, aprohibited device, ammunition, prohibited ammunition or an explosive substance and, at the time of the offence, the person was notprohibited by any order made under this Act or any other Act of Parliament from possessing any such thing, the court that sentences the person or directs that the person be discharged, as the case may be, shall, in addition to any other punishmentthat may be imposed for that offence or any other condition prescribed in the order of discharge, consider whether it is desirable, in theinterests of the safety of the person or of any other person, to make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all suchthings, and where the court decides that it is so desirable, the court shall so order.

Duration of prohibition order

(2) An order made under subsection (1) against a person begins on the day on which the order is made and ends not later than ten yearsafter the person’s release from imprisonment after conviction for the offence to which the order relates or, if the person is not thenimprisoned or subject to imprisonment, after the person’s conviction for or discharge from the offence. Reasons

(3) Where the court does not make an order under subsection (1), or where the court does make such an order but does not prohibit thepossession of everything referred to in that subsection, the court shall include in the record a statement of the court’s reasons for notdoing so. [Emphasis added.] Mr. Heustis pled guilty to the offence of threatening the death of Mr. Kipling, which invoked the Court’s authority to make an orderunder s. 110(1)(a). [44] In order to fully understand the implications of s. 110, it must be contrasted with s.

Section 109 is a mandatory provision; itrequires a judge, who sentences a person for certain violent offences and weapons-related offences, to impose a prohibition of 10 years ormore.

Section 110, by way of contrast, is not mandatory. Subsections 110(1) and (2) confer a discretion upon the sentencing judge: (i)to impose or not to impose a prohibition; and (ii) if a prohibition is to be imposed, to fix its length for any period not greater than tenyears, after release from imprisonment. [45] According to s. 110(3), there is no statutory obligation to give reasons if an order is made that encompasses all of the weaponsreferred to in the section. This may explain why there are few cases stating the basis for such orders.

Subsection 110(3) obliges a court,which does not make an order under s. 110(1), to give reasons for not doing so, but this obligation also appears to be often overlooked. There are, however, examples of cases, from this jurisdiction and elsewhere, where courts have provided reasons for either declining toimpose a weapons prohibition or imposing an order of less than 10 years (see: R. v. Woloshyn, 2002 SKQB 240, 220 Sask. R. 206—fiveyears; R. v. Vanin, 2005 SKQB 13, 258 Sask. R. 260—one year; R. v. Moga, , [2006] O.J. No. 5055 (QL)—no order;R. v. Fiergiotis, 2007 BCSC 1837—two years; R. v. Grande, , [2008] O.J.

No. 399 (QL)—no order; R. v. Mitchell,2008 NLTD 23, 274 Nfld. & P.E.I.R. 320—four years; R. v. Jacobish, 2008 NLTD 149, 279 Nfld. & P.E.I.R. 45—no order; and R. v.Barber, 2010 NWTSC 28—no order). The overarching factor considered by these Courts—as mandated by s. 110(1) of the CriminalCode—is whether the individual is a threat to the safety of the public. [46] Applying this limited case law to the case at bar, the sentencing judge’s refusal to impose a s. 110 order on Mr. Heustis is far from“wholly inadequate.” The sentencing judge gave a reasoned decision.

She recognized that she had the authority to make the order, butdeclined to do so because of several factors, including the fact that there were no weapons involved (see Heustis transcript, p. 36). Theabsence of any weapon in the commission of an offence is an appropriate factor to consider given the sentencing judge’s obligation toconsider the safety of the public. Objectively speaking, the Heustis offences, like the Omoth offences, are at the lower end ofseriousness. The sentencing judge also referred to the fact that Mr. Heustis had accepted responsibility for the crimes.

Earlier in herdiscussions with the Crown and the defence, she stated that she believed the offences were out of character for Mr. Heustis. [47] Nothing distinguishes Mr. Heustis from Mr. Omoth, which would justify Mr. Heustis’s more lenient treatment. Both accusedexercised their right to a preliminary inquiry, such that all of the facts were known by the Crown. Mr. Omoth’s participation in theoffences was not greater than that of Mr. Heustis—indeed the converse is true. Mr. Heustis was charged with an additional offence—afactor which rendered him more culpable, not less.

Their personal circumstances are the same, other than that Mr. Heustis has a prior,dated record for a common assault. Mr. Omoth has no record. They are both in their mid-thirties; they are both working, productivemembers of society and they share an interest in recreational hunting. Both have the support of their families and their employers, whoattest to their character. On the night in question, they drank to excess. They had been hunting that day, but they left their weaponsbehind when they went to the Kipling home. [48] Mr. Omoth’s grievance over the difference in treatment is palpable. As soon as Mr.

Heustis was sentenced, Mr. Omothimmediately telephoned his own lawyer to complain about the difference between the treatment that he had received at the hands of thecourts from that accorded to his co-accused. He then launched this appeal with counsel—a costly endeavour especially given the limitedscope of the appeal.

[49] Crown counsel resisted the appeal on the basis that the sentence was the product of a joint submission and should not be disturbedunless the sentence can be said to be demonstrably unfit or some other compelling reason can be found. Crown counsel argued that thesentence was fit, and that this Court could not take into account the second sentence. Crown counsel did not suggest, however, that thes. 110 order was pivotal to its agreement to the conditional sentence.

The focus of Crown counsel’s submissions to this Court was thefact of the joint submission. [50] Broadly speaking, a trial judge should not reject a joint submission except in limited circumstances (see: R. v. Webster, 2001SKCA 72, 207 Sask. R. 257; R. v. N. (J.C.), 2005 SKCA 64, 197 C.C.C. (3d) 381; and R. v. McKenzie, 2006 SKCA 13, 206 C.C.C. (3d)569).

As this Court stated in N. (J.C.) at paras. 13-14, a court must give “cogent reasons” grounded in the sentencing principles fordeparting from a joint submission. [51] Webster, however, allows a court to reject a joint submission if the sentence is either unfit or otherwise contrary to the publicinterest (see: R. v. Kasakan, 2006 SKCA 14 at para. 15, [2006] 8 W.W.R. 23; and R. v. B.L., 2008 SKCA 122 at para. 6, 314 Sask. R.276). Indeed, this Court has set aside a joint submission on the basis that parity had not been taken into account in the development of ajoint submission (see: R. v.

Trithardt, 2005 SKCA 129, 275 Sask. R. 83). [52] The standard of appellate review recognizes a broad range of fit sentences, and accords considerable deference to the sentencingjudge. When faced with the fact pattern presented by this case, an appellate court, however, cannot apply the standard of appellatereview of “fitness” in the same way. This Court has information that the sentencing judge does not have. Only this Court can considerthe question of parity and exercise its discretion to bring the sentences in line.

In another case, this Court might well conclude that it isnot in the public interest to set aside a joint submission in the face of a more lenient second sentence. In this case, however, there isnothing on the record that will explain to the public why Mr. Heustis’s sentence is so different from Mr. Omoth’s. To people who arenot recreational hunters, a ten-year weapons prohibition would be of no consequence. For Mr. Omoth, and Mr. Heustis, ten years will bea long time.

Preserving a supervisory role for the Court of Appeal, in a case such as this, is in the public interest and supports theprocess of joint submissions. [53] As the Supreme Court of Canada stated in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 92 “[a]ppellatecourts…serve an important function in reviewing and minimizing the disparity of sentences imposed by sentencing judges for similaroffenders and similar offences committed throughout Canada.” The need to avoid disparity is more acute between co-accused, when thesentence comparator arose after the appellant had been sentenced. IV.

Conclusion [54] Having regard for all of the circumstances, I would allow this appeal, and set aside the s. 110 order. All other aspects of thesentence remain in place. DATED at the City of Regina, in the Province of Saskatchewan, this 6th day of April, A.D. 2011. “JACKSON J.A.” Jackson J.A.