R. v. Mattatall, 2013 NSSC 31

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Mattatall, 2013 NSSC 31 Date: 20130123 Docket: CRAD 353948 Registry: Annapolis Royal Between: Her Majesty the Queen Appellant v. Shannon Mattatall Defendant/Respondent LIBRARY HEADING Judge : The Honourable Justice Charles E. Haliburton Heard: January 8, 2013, in Annapolis Royal, Nova Scotia Written Decision: January 23, 2013 Subject: Prosecutorial discretion/ s. 155

Summary: Upon a third conviction for impaired driving, the accused was sentenced to 60 days incarceration. S. 155 of the Criminal Code mandates a minimum period of 120 days incarceration. After discussing the authority to supervise prosecutorial discretion, it was determined that the trial judge erred in substituting his discretion for that of the prosecutor. Issue: Prosecutorial discretion/minimum sentences Result: Appeal allowed. Sentence to be imposed is a minimum period of 120 days. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET .

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Mattatall, 2013 NSSC 31 Date: 20130123 Docket: CRAD 353948 Registry: Annapolis Royal Between: Her Majesty the Queen Appellant v. Shannon Mattatall Defendant/Respondent Judge: The Honourable Justice Charles E. Haliburton Heard: January 8, 2013, in Annapolis Royal, Nova Scotia Written Decision: January 23, 2013 Counsel: Lloyd Lombard, for the Appellant Darren MacLeod, for the Respondent By the Court : [ 1 ] This is an appeal by the Crown against the sentence imposed on Shannon Philip Mattatall when he was convicted of a number of offences in July 2011.

The focus of this appeal relates to the sentence he received for impaired driving. [ 2 ] Mattatall was convicted in Provincial Court on a charge that on or about 11 July, 2009, at or near Round Hill, Annapolis County, he, having consumed alcohol in such a quantity that the concentration thereof in his blood, exceeded 80 mg of alcohol in 100 ml of blood, did have care or control of a motor vehicle, contrary to section 253(1) of the Criminal Code . Notwithstanding the fact that this was a third or subsequent offence, he was sentenced to serve 60 days in jail.

At the same time he was convicted for a number of other offences, namely; S. 88.1 the possession of a weapon S. 266 assault S. 145(5.1) failure to comply with the condition of an undertaking S. 145(3) failure to comply with a condition

For each of these offences, Mattatall was sentenced to an additional seven days incarceration. The total sentence imposed was 88 days. [ 3 ] Because it was a third offence for impaired driving, Mattatall had been served with a Notice of Intent to seek an increased penalty on behalf of the prosecution as provided by s. 255(1) thereby mandating, “imprisonment for not less than 120 days”. [ 4 ] The transcript reveals that the several offences of which Mattatall was convicted, each involved some involvement with alcohol.

The impaired driving offence, which is the focus of this appeal, apparently arose from an incident when Mr. Mattatall was highly inebriated. On the day in question, the police received a call from the wife of Mattatall who was concerned that he had left home in his vehicle while inebriated. As a result, a police officer located him in the driveway of a neighbour. He had passed out in the driver seat with an open bottle of beer between his legs and the remainder of a “12 pack” on the seat beside him. [ 5 ] There was a Pre-Sentence Report before the court.

Mattatall was, at the time, 37 years of age, he was in a nine year relationship with a female partner and was the sole support of their two children. He was also paying regular support for a child of a previous relationship. He is a tradesman (drywall), who is not always employed, but he was holding full-time employment at the time he came before the court for sentencing.

The Pre-Sentence Report and his criminal record, make it clear that he has alcohol addiction problems, however, his prior convictions for impaired driving were almost 10 years ago. [ 6 ] On sentencing, the Crown proved service of the Notice of Prior Conviction and sought the imposition of the statutory minimum sentence of 120 days for a third conviction. [ 7 ] Defence counsel, after putting Mattatall in the best possible light, noted how stale the previous convictions were, and referred to the case of Richard Gill then before the Ontario Court of Appeal and awaiting decision.

That case had raised the issue of the concept of “core prosecutorial discretion”. Such discretion is beyond the reach of the trial judge, while tactics or discretion of, are not central to the role of the prosecutor, might be reviewed by a trial judge on the basis of “reasonableness”. [ 8 ] The transcript of Mattatall’s trial discloses that a number of cases were discussed by counsel and the judge in giving consideration to this proposition which was advanced on behalf of Mattatall.

The adoption of the theory advanced on his behalf would result in the judge applying the principles of sentencing described in s. 718 of the Code and not being bound by the terms of s. 155 . The decision in R. v. Gill [2012] ONCA 607 . Ultimately, the court unanimously ruled that in the circumstances of that case the minimum sentence was to be applied. [ 9 ] The factual background in Gill was, in some respects, similar to that before the court. It too was an impaired driving charge where the accused was found in a stationary vehicle in a drunken condition.

As in the present case, his previous convictions were dated. [ 10 ] Effectively, the court observed that the prosecutor is not obliged in every case to prove prior convictions thereby mandating the minimum sentence. At paragraph six, Doherty, JA observed; "a prosecutor's decision to approve the notice has a direct impact on the liberty interest of an accused under

section 7 of the Canadian Charter of Rights and Freedoms . The prosecutor must exercise his or her discretion in a way that is consistent with the principles of fundamental justice. A trial judge can review the prosecutor's exercise of discretion to determine whether it offends a principle of fundamental justice and violated the

section 7 rights of the accused”. [1] The judgment goes on to say that the prosecution decision might violate the s. 7 rights of the accused if; (

a) it undermines the integrity of the administration of justice; (

b) it operates in a manner that renders the sentencing proceedings fundamentally unfair; (

c) is arbitrary; (

d) results in a limit on the accused’s liberty that is grossly disproportionate to the state interest in proving the notice. The essence of the Gill decision, I think, is to be found at paragraph 49. " The Crown is no more limiting the sentencing discretion of the trial judge when it chooses to approve the notice under

section 727 then it is when it chooses to approve the use of a firearm in the commission of certain offences; chooses to charge an offence that attracts a minimum penalty; or chooses to proceed by indictment when that procedure attracts a greater minimum penalty. In each instance it can

be said that the Crown's action limits the sentencing judge's discretion in the sense that, but for the Crown's actions, a minimum penalty would not apply. The exercise of the crown's discretion, however, has the effect of limiting the judges sentencing discretion because of the statutory provisions enacted by Parliament. It is those provisions that limit the trial judges sentencing discretion .

As the supreme court of Canada made clear in Ferguson and again in Nasogaluak, unless minimum penalties are unconstitutional, judges must accept them and impose sentences that fall within the range fixed by Parliament.” [12] Reasonableness is not, in law, a basis for a judge to override the prosecutor’s discretion. A general proposition is evident in the cases I have reviewed that the court may and will override the prosecutor and the minimum sentence provisions incorporated in the law only where the Charter of Rights of the defendant are found to be abridged.

And it is clear, that where such an argument is made, the onus is on the defendant to satisfy the court that one or other of those values listed as a, b, c or d above is at play. [13] As in Gill , it is not for the prosecutor to prove the at he did not act arbitrarily, rather it is incumbent upon the respondent to establish a breach of his s. 7 rights “demonstrating arbitrariness in the sense that the prosecutor’s decision bore no relationship to the objectives” sought to be achieved by the applicable laws. In the present case, no evidence was led by the respondent in aid of that argument.

Again I quote selectively from paragraphs 75 and 76 of the Gill decision; “There is no freestanding principle of fundamental justice requiring that the Crown justify the exercise of its discretion to the trial court.

To the contrary, our legal tradition – the source of the principles of fundamental justice – has long recognized that the independence of the prosecutor and the very distinct roles assigned to judges and prosecutors in the criminal process combine to dictate that judges should not oversee trial decisions made in the exercise of prosecutorial discretion except to the extent that they impact on the integrity of the process or the fairness of the trial.

To require prosecutors to “justify” decisions to trial judges on a reasonableness standard is to imply that trial judges have some sort of supervisory role over the conduct of the prosecution. They do not. I do not mean to suggest that the prosecutor may never be required to explain its decision to prove the notice. If the accused, who carries the burden of persuasion on a s. 7 application, leads evidence of a violation of s. 7, the Crown must respond to that evidence”. [14] The decision of the Ontario Court of Appeal in Gill is reflective of a number of decisions of the Supreme Court of Canada.

I refer particularly to R. v. Nixon, [2011] SCC 34 and Krieger v. Law Society of Alberta, [2002] SCC 65. [15] The circumstance in Nixon was that a “plea agreement” had been entered into with an accused. Subsequently, the prosecutor was instructed by his superiors in the Crown office to withdraw the plea agreement and proceed to trial. On an application to the court by the accused, the judge ruled that the repudiation of the agreement was subject to review, and in the end, directed the Crown to proceed with the agreement.

The Court of Appeal and ultimately the Supreme Court of Canada concluded that the repudiation of the plea agreement was a matter of “prosecutorial discretion” not reviewable by the court, subject only to the doctrine of “abuse of process”. Charron J. At paragraph 15 of her judgment discussed prosecutorial discretion and described those things which fall within the “core” of that discretion. At paragraph 21 of here decision is a useful quote from Krieger (supra); “Prosecutorial discretion” is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor.

Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General’s office and which are protected from the influence of improper political and other vitiating factors by the principle of independence... "we believe the core elements of prosecutorial discretion encompass the following: (

a) the discretion whether to bring the prosecution of a charge laid by police; (

b) the discretion to enter a stay of proceedings in either a private or public prosecution,...(

c) the discretion to accept a guilty plea to a lesser charge; (

d) the discretion to withdraw from criminal proceedings altogether; and (

e) the discretion to take control of a private prosecution". [16] Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General’s anticipation in it...Decisions

that govern a Crown prosecutor’s tactics or conduct before the court do not fall within the scope of prosecutorial discretion (they fall within) the inherent jurisdiction of the court to control its own processes... [17] The decision in R. v. Krieger makes some rather emphatic comments about the independent exercise of prosecutorial discretion.

At paragraphs 30 and 31 the following comments may be found; “It is a constitutional principle in this country that the Attorney General must act independently... that courts will not interfere with his exercise of executive authority...It is manifest that, as a matter of principle and policy, courts should not interfere with prosecutorial discretion. This appears clearly to stem from the respect of separation of powers and the rule of law.

Under the doctrine of separation of powers, criminal law is in the domain of the executive . . . .It is fundamental to our system of justice that criminal proceedings be conducted in public before an independent and impartial tribunal. If the court is to review the prosecutor’s exercise of his discretion the court becomes a supervising prosecutor. It ceases to be an independent tribunal”...Subject to the abuse of process doctrine, supervising one litigant’s decision-making process __ rather than the conduct of litigants before the court __ is beyond the legitimate reach of the court”.

Conclusion [18] The cases I’ve reviewed make it clear that our constitutional and traditional framework for the administration of criminal justice is premised upon an independent prosecution service (Attorney General) and an independent judiciary. The role of the two are and must remain separate. Thus, the decision to initiate a prosecution, to determine under which statutory provisions it will proceed, and to bring it forward to a judgment, are decisions within the exclusive role of the prosecutor. The penalty which will apply is a matter which Parliament will have decreed.

The conduct of the litigants before the court and their tactics are subject to judicial control, determining what charge an accused person will face, is not. Only in those cases where a defendant has brought forward evidence to convince the court the accused has or will suffer the loss of a fundamental right to justice which would tend to undermine the integrity of the administration of justice or is grossly disproportionate to the offence committed, can a judge intervene. XIX. Accordingly, this appeal on behalf of the Crown will be allowed.

The sentence to be imposed in relation to the events as provided by Parliament is a minimum period of incarceration of 120 days. XX. The determination to charge Mattatall under a particular

section of the code, and to call for a penalty in accord with s. 255 are decisions which fall within those “core elements” of prosecutorial discretion. A judge might interfere with that discretion only in cases where the accused has satisfied the judge that failing to do so would amount to a breach of his/her s. 7 rights, or deprive the accused of fundamental justice. XXI. In this case there was no evidence brought forward upon which the trial judge could have reached such a conclusion. XXII. The appeal on sentence, brought by the Crown, is therefore allowed. Haliburton, J.