His Majesty the King Appellant v. SPP Respondent DECISION ON SUMMARY CONVICTION APPEAL Restriction on Publication of any information that could identify the victim or witnesses: s. 486.4 , s. 486.5 C.C. Judge: The Honourable Justice Peter P. Rosinski Heard: January 5, 2024, in Halifax, Nova Scotia Written Decision: February 14, 2024 Counsel: Cory Roberts, for the Appellant Ronald Pizzo v. George Franklin for the Respondent, 2024 NSSC 42

SUPREME COURT OF Nova Scotia Citation: R. v. SPP , 2024 NSSC 42 Date: 20240214 Docket: CRH No. 520301 Registry: Halifax Between: His Majesty the King Appellant v. SPP Respondent DECISION ON

SUMMARY CONVICTION APPEAL Restriction on Publication of any information that could identify the victim or witnesses: s. 486.4 , s. 486.5 C.C. Judge: The Honourable Justice Peter P. Rosinski Heard: January 5, 2024, in Halifax, Nova Scotia Written Decision: February 14, 2024 Counsel: Cory Roberts, for the Appellant Ronald Pizzo and George Franklin for the Respondent Order restricting publication - sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. Victim under 18 — other offences

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the

victim shall not be published in any document or broadcast or transmitted in any way. Mandatory order on application

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (

a) as soon as feasible, inform the victim of their right to make an application for the order; and (

b) on application of the victim or the prosecutor, make the order. Child pornography

(3) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. Limitation

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. Order restricting publication — victims and witnesses 486.5

(1) Unless an order is made under

section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. Justice system participants

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. Offences

(2.1) The offences for the purposes of subsection (2) are (

a) an offence under

section 423.1, 467.11, 467.111, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (

b) a terrorism offence; (

c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act ; or (

d) an offence under subsection 21(1) or

section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c). Limitation

(3) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community. Application and notice

(4) An applicant for an order shall (

a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and (

b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies. Grounds

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice. Hearing may be held

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

Factors to be considered

(7) In determining whether to make an order, the judge or justice shall consider (

a) the right to a fair and public hearing; (

b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed; (

c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation; (

d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process; (

e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; (

f) the salutary and deleterious effects of the proposed order; (

g) the impact of the proposed order on the freedom of expression of those affected by it; and (

h) any other factor that the judge or justice considers relevant. Conditions

(8) An order may be subject to any conditions that the judge or justice thinks fit. Publication prohibited

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way (

a) the contents of an application; (

b) any evidence taken, information given or submissions made at a hearing under subsection (6); or (

c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. By the Court: 1 - Introduction [ 1 ] This Court is sitting as a

Summary Conviction Appeal Court in relation to a sentence appeal per ss. 813 and 822(6) of the Criminal Code [" CC "]. [ 2 ] SPP pled guilty to two

summary conviction offences that took place between January 31 and March 7, 2020: 1. s. 271(1) (

b) CC – “sexual assault”; and 2. s. 172.1(1) (

b) CC – “child luring”, “by means of telecommunication, communicates with … a person [who is or an accused believes is under the age of 16 years] for the purpose of facilitating the commission of an offence under

section … 271 … with respect to that person …”. [1] [ 3 ] Judge Sarson summarized the facts: The victim was 14 years old and a Grade 9 student at the local Junior High School. SPP was her teacher, or one of her teachers. He had also taught her when she was in Grade 8. Between January 31 and March 7, 2020, SPP kissed the victim on the mouth on two separate occasions, with each of the kisses lasting approximately two seconds, leading to the charge under

section 271. He also sent her a number of texts, ["over roughly a five week period." - AB Vol. 1 of 3 Documents, p. 62] leading to the charge under

section 172.1(1) (b). The texts in question were read into the record by the Crown Prosecutor …. SPP was arrested on March 17, 2020, after friends of the victim brought the text messages to the attention of the school administration . … SPP advised that he knew the victim was suffering from significant mental health issues, the victim had been cutting herself for a while, and that her family life was terrible. He reported being aware that her cutting was moving further down her arm and was becoming deeper. As a result of being aware of this information, SPP gave the victim his personal cell phone number and the two began texting which eventually turned to sending texts of a sexual nature.

Although SPP advised that he did not know who initiated the sexually explicit text messages, he believed that it was probably him. [2] [ 4 ] He was sentenced by Judge Sarson to an eight-month conditional sentence order ["CSO"] (strict house arrest) and three years' probation. [ 5 ] The Crown appeals that sentence. [ 6 ] The outcome of this appeal largely turns on whether: 1. The preconditions for imposing a CSO were present (i.e. specifically the SPP’s service of the sentence of imprisonment in the community “would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in

section 718 to 718.2”; 2. Judge Sarson erred in finding the SPP’s sentencing on December 9, 2022, had not taken place “within a reasonable time” after his guilty plea on April 28, 2021, and that that was a breach of s. 11(

b) of the Charter of Rights for which Judge Sarson granted SPP a “sentence reduction”; and 3. Judge Sarson imposed a sentence that was manifestly unfit in all the circumstances? [ 7 ] I dismiss the appeal. 2 - The standards of review [ 8 ] Every appeal involves standards of review. [ 9 ] In the case of sentencing appeals, the following statements from the respective Courts address this issue: I. R. v. Marchand , 2023 SCC 26 , per Martin J.: [50] According to Lacasse , sentencing judges are afforded broad discretionary powers in crafting a fit sentence (para. 39).

Appellate intervention is justified only if a sentence is demonstrably unfit or if the judge committed an error in principle that impacted the sentence imposed (para. 44). The sentencing judge committed errors in principle that impacted the assigned sentence of five months' imprisonment that she ordered be served concurrently to the sexual interference sentence. Specifically, she erred by (1) minimizing the harm caused to the victim by failing to recognize the grooming that did occur; (2) misconstruing the offender's actions; and (3) assigning a concurrent sentence for the luring offence .

These errors in principle warranted appellate intervention that the majority of the Court of Appeal below failed to undertake. I would thus substitute the 5-month sentence imposed by the sentencing judge with the 12-month sentence sought by the Crown. [My underlining added] II. R. v. Lacasse , 2015 SCC 64 , per Wagner, J. (as he then was): [1] Sentencing remains one of the most delicate stages of the criminal justice process in Canada. Although this task is governed by ss. 718 et seq. of the Criminal Code, R.S.C. 1985, c.

C 46 , and although the objectives set out in those sections guide the courts and are clearly defined, it nonetheless involves, by definition, the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing . [2] For this purpose, the courts have developed tools over the years to ensure that similar sentences are imposed on similar offenders for similar offences committed in similar circumstances - the principle of parity of sentences - and that sentences are proportionate by guiding the exercise of that discretion, and to prevent any substantial and marked disparities in the sentences imposed on offenders for similar crimes committed in similar circumstances .

For example, in Quebec and other provinces, the courts have adopted a system of sentencing ranges and categories designed to achieve these objectives. … [ 10 ] This appeal affords this Court, first of all, an occasion to clarify the standard on the basis of which an appellate court may intervene and vary a sentence imposed by a trial judge.

The Court must determine, inter alia, the extent to which a deviation from a sentencing range that is otherwise established and adhered to may justify appellate intervention . [ 11 ] This Court has on many occasions noted the importance of giving wide latitude to sentencing judges. … The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention.

Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit . [ 12 ] In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence

imposed on an offender. The more serious the crime and its consequences, or the greater the offender's degree of responsibility, theheavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences,but also on the moral blameworthiness of the offender.

Determining a proportionate sentence is a delicate task…. … [41] In Proulx, this Court, per Lamer C.J., discussed these same principles, which continue to be relevant: In recent years, this Court has repeatedly stated that the sentence imposed by a trial court is entitled to considerable deference fromappellate courts: see Shropshire, supra, at paras. 46-50; M. (C.A.), supra, at paras. 89-94; McDonnell, supra, at paras. 15-17 (majority);R. v. W. (G.), (SCC), [1999] 3 S.C.R. 597, at paras. 18-19.

In M. (C.A.), at para. 90, I wrote: Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court ofappeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vestedsentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code. [Firstemphasis added; second emphasis in original.] . . .

Although an appellate court might entertain a different opinion as to what objectives should be pursued and the best way to do so, thatdifference will generally not constitute an error of law justifying interference. Further, minor errors in the sequence of application of s.742.1 may not warrant intervention by appellate courts.

Again, I stress that appellate courts should not second guess sentencing judgesunless the sentence imposed is demonstrably unfit. [paras. 123 and 125] … [44] In my view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of anaggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge's decision that suchan error had an impact on the sentence. … [49] For the same reasons, an appellate court may not intervene simply because it would have weighed the relevant factorsdifferently. In Nasogaluak, LeBel J. referred to R. v.

McKnight (1999), (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), atpara. 35, in this regard: 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. To maintain deference to the trial judge's exercise of discretion, the weighing orbalancing of relevant factors must be assessed against the reasonableness standard of review.

Only if by emphasizing one factor or by notgiving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate court interfere with thesentence on the ground the trial judge erred in principle. [para. 46] … [51] Furthermore, the choice of sentencing range or of a category within a range falls within the trial judge's discretion andcannot in itself constitute a reviewable error. An appellate court may not therefore intervene on the ground that it would have put thesentence in a different range or category.

It may intervene only if the sentence the trial judge imposed is demonstrably unfit. [52] It is possible for a sentence to be demonstrably unfit even if the judge has made no error in imposing it.… [53] This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code,which provides that a sentence must be "proportionate to the gravity of the offence and the degree of responsibility of theoffender".

A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle.Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offencecommitted by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances.Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2(

a) and (

b) of the CriminalCode. [54] … The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the fundamental principle ofproportionality. … [My bolding and underlining added]

III. R. v. RBW , 2023 NSCA 58 , Justice Derrick stated for herself and Justice Fichaud (Farrar JA dissenting): [3] [48] The appellant sought leave to appeal and advanced two grounds of appeal:

(1) The sentencing judge erred in principle in ordering a conditional sentence of imprisonment.

(2) The sentencing judge erred in principle by ordering a manifestly unfit sentence. … Standard of Review [50] Sentencing decisions are accorded a high degree of deference in appellate review. Intervention is warranted only if (1) the sentencing judge committed an error in principle that impacted the sentence or, (2) the sentence is demonstrably unfit.

Errors in principle include "an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor ." [51] In assessing the issue of demonstrable unfitness, appellate review must focus on whether the sentence is proportionate to the gravity of the offence and the degree of the offender's responsibility .

Proportionality is the fundamental principle of sentencing. [52] On appeal, "wide latitude" is to be given to sentencing judges who are, [11] … in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in this regard. The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention.

Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit. [12] In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be.

In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.

Moreover, if appellate courts intervene without deference to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of the system and the authority of trial courts… [My bolding added] [10] With these standards of review in mind, I will examine the merits of the Crown's appeal. 3 - The background to the appeal i - General [11] On April 28, 2021, SPP pled guilty to having between January 31- March 7, 2020, committed two sexual assaults ( s. 271(1) (

b) CC - i.e. specifically each being a kiss on the lips for two seconds) [4] and repeated use of a telecommunication device to facilitate the commission of the sexual assaults, also known as "child luring" ( s. 172.1(1) (

b) CC ) in relation to D, a female person under the age of 16 years (14 years old), who had been the year previous, and still was, his student in school. [12] He sought a CSO and lengthy probation as an appropriate sentence. [ 13 ] His counsel stated to Judge Sarson during the arguments in relation to whether there was an unreasonable delay between the time of plea and sentencing ( s. 11 (b)) and whether the six-month mandatory minimum sentences for the s. 172.1(1) (

b) and 271 (

b) CC offences was unconstitutional: We would also say you could look to the Nova Scotia Court of Appeal case of Hood [2018 NSCA 18] as well for an example of a teacher… All of that together, we say, considering the circumstances of the offence, the circumstances of the offender, and the case law that we provided, demonstrates that a fit and appropriate sentence, in this case, is the suspended sentence, conditional sentence, or possibly a 90 days intermittent sentence, all of which would be grossly disproportionate to the 6 month sentence [the mandatory minimum sentence]. (p. 287 AB Vol. 2 of 3 Evidence)

[then at the sentencing submission itself Mr. Pizzo stated]: … during the

Section 12 [ Charter ] hearing … you determined that a fit and proper sentence would be somewhere in the range between 90 days in prison and … six months … with probation. And you also left the possibility open that this may be a sentence that could be served in the community.

We're going to focus our submissions on whether this sentence should be served in the community or not, primarily … (AB Vol. 2 of 3 Evidence, p. 674) [5] [ 14 ] Judge Sarson sentenced SPP to an eight-month (strict house arrest) CSO to be followed by three years' probation. ii - The Crown's position [6] [ 15 ] At trial , the Crown's sentencing position was characterized by Judge Sarson at AB Vol. 2 of 3 Evidence, pp. 724-725 as: - he should impose "the longest period of incarceration that I deem to be a just and appropriate sentence"; - and that a CSO was unavailable because SPP had not shown that a CSO "would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 " per s.742.1 CC . [ 16 ] The Crown having elected to proceed summarily, the maximum sentence for each of the offences was imprisonment for two years less a day .

The Crown's position in its written brief of September 2021 read: For reasons outlined below, the Crown asserts that the Court may dispose this matter summarily by declining to engage in the question of s. 12 of the Charter , on the basis that an appropriate sentence for this accused includes a penalty of 18 - 24 months of incarceration for each offence, to be served consecutively, followed by a three year period of probation [relying on Friesen 2020 SCC 9 ]. (AB Vol. 3 of 3 – Evidence, p. 913) [My bolding added] [ 17 ] SPP sought a CSO. [ 18 ] On December 9, 2022, Judge Sarson sentenced him to an eight-month (4 months + 4 months consecutive) CSO with strict "house arrest", to be followed by 3 years of probation. [ 19 ] SPP has finished serving his eight-month CSO on or about August 8, 2023, and is presently on probation. [ 20 ] In its June 29, 2023, brief , the Crown asserts that Judge Sarson erred (as summarized in my words): 1. in law by concluding that the sentence-process delay breached SPP's s. 11(

b) Charter rights, and for which reason Judge Sarson reduced what would otherwise have been the appropriate sentence; 2. in principle and in law (i.e. he was not legally permitted to impose a CSO); and 3. in imposing a sentence that is demonstrably unfit. [ 21 ] The Crown then argued that this Court should re-sentence SPP to a period of imprisonment for between 12-15 months. [ 22 ] At this hearing , the Crown argued that given the passage of time, it is now appropriate to credit SPP on a 1:1 basis for having served the eight-month CSO under strict house arrest, as if he had served eight months in jail, which should be deducted from the proposed sentence of re-incarceration (imprisonment for between 12-15 months).

This would require SPP to further serve four months of imprisonment in a jail. [ 23 ] However, the Crown is no longer requesting that he be re-incarcerated.

It requests this Court to stay any sentence of imprisonment this Court would otherwise consider appropriate to substitute at this time. [7] [ 24 ] Doing so would result in this appeal process having produced no meaningful result. [ 25 ] From SPP's perspective, he is equally successful regardless of whether the Court dismisses the appeal or allows the appeal and re-sentences him to an increased sentence, that he will not be ordered to serve. iii - Why this Court should deal with the merits of the (sentence) Appeal [ 26 ] Let me make some preliminary comments. [ 27 ] Courts have limited resources. [ 28 ] Providing timely access to justice for all litigants is of great importance. [ 29 ] Courts have therefore developed an aversion to "deciding" hypothetical or moot legal issues - because they will have no real effect in the specific case presented. [ 30 ] Nevertheless, somewhat reluctantly, I will address the merits of the Appeal. [ 31 ] Exceptionally I do so, because I believe it is in the interests of justice.

[32] In my opinion, Judge Sarson's s. 11(

b) decision has triggered the application of the horizontal stare decisis principle - R. v.Sullivan, 2022 SCC 19. [33] Thus, his decision may well be interpreted as presumptively binding on all other Provincial Court Judges in Nova Scotia. [34] I addressed this principle recently in Diggs v. Nova Scotia (Attorney General), 2024 NSSC 11: [115] My colleague Justice Patrick Murray recently set out a helpful

summary thereof in Roach v. Nordic Insurance Co. of Canada,2023 NSSC 342: [36] The rule of "horizontal stare decisis" was recently addressed in R. v. Sullivan, 2022 SCC 19 (see paras 73-77). Kasirer J. said,for the Court: [73] Horizontal stare decisis applies to decisions of the same level of court. The framework that guides the application ofhorizontal stare decisis for superior courts at first instance is found in [Re Hansard Spruce Mills, (BC SC), [1954]4 DLR 590 (BCSC)], described by Wilson J. as follows (at p. 592): . . . I will only go against a judgment of another Judge of this Court if: (

a) Subsequent decisions have affected the validity of the impugned judgment; (

b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered; (

c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of thetrial require an immediate decision without opportunity to fully consult authority. .... [75] The principle of judicial comity - that judges treat fellow judges' decisions with courtesy and consideration - as well as therule of law principles supporting stare decisis mean that prior decisions should be followed unless the Spruce Mills criteria aremet.

Correctly stated and applied, the Spruce Mills criteria strike the appropriate balance between the competing demands of certainty,correctness and the even-handed development of the law. Trial courts should only depart from binding decisions issued by a court ofcoordinate jurisdiction in three narrow circumstances: 1. The rationale of an earlier decision has been undermined by subsequent appellate decisions; 2. The earlier decision was reached per incuriam ("through carelessness" or "by inadvertence"); or 3.

The earlier decision was not fully considered, e.g. taken in exigent circumstances. [37] As the defendant points out, the court made clear that exceptions to stare decisis are narrow: "mere personal disagreementbetween two judges is not a sufficient basis to depart from binding precedent" (para 74). [38] As to decisions taken per incuriam, the court said: [77] ... [A] judge can depart from a decision where it was reached without considering a relevant statute or binding authority. In otherwords, the decision was made per incuriam, or by inadvertence, a circumstance generally understood to be "rare"...

The standard to find adecision per incuriam is well-known: the court failed to consider some authority such that, had it done so, it would have come to adifferent decision because the inadvertence is shown to have struck at the essence of the decision. It cannot merely be an instance inwhich an authority was not mentioned in the reasons; it must be shown that the missing authority affected the judgment... [My bolding added]

[ 35 ] In my position as a

Summary Conviction Appeal Court, the principle of vertical stare decisis gives this Court's pronouncements on matters of law precedence over, and cause them to be binding upon, those relevant decisions that might otherwise be taken by Judges of the Provincial Court. [ 36 ] If I do not consider the merits of this appeal, Judge Sarson's adoption of the reasons in Charley and the five-month presumptive maximum period of sentence-process delay for purposes of s. 11(

b) of the Charter analysis, may well be considered as binding by his fellow Provincial Court Judges (and Justices of the Peace in their role as triers of fact) in Nova Scotia. 4 - Did Judge Sarson err regarding his conclusions: that SPP was not a danger to the community while serving a CSO and in relation to the claimed mitigating factors he relied upon in sentencing SPP? [ 37 ] A Conditional Sentence Order ["CSO"] is generally an available sentencing option for each of the s. 172.1(1) (

b) and 271(1) (

b) offences provided the Court is satisfied of the pre-conditions for a CSO set out in s 742.1: if a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may …order that the offender serve the sentence in the community… if … the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 ; the offence is not an offence punishable by a minimum term of imprisonment [not applicable - nor is the remainder of the section] [ 38 ] Each of these

summary conviction offences carries a maximum sentence of imprisonment of " not more than two years less a day ". i - Judge Sarson accepted SPP was not a danger to the community. (AB Vol. 1 of 3 Documents, pp. 68, 69, 72(13), 127 and 131) [ 39 ] When I apply the deferential standard of review to his conclusion, I cannot say he erred in that respect. [ 40 ] Inter alia , he specifically accepted Dr.

Abramowitz's opinion that: Rather than being primarily driven by sexual preference, it appears more likely that SPP's behaviour, during the index offences, was motivated by socio-emotional factors… It is likely that SPP's strong identification with his job and being the helper of disadvantaged students put him at risk for the index offences… It is likely that the absence of physical/emotional/sexual connections with his wife, in addition to his suboptimal level of general social and emotional support, accentuated SPP's risk of becoming involved with someone who he found it easy to relate to.

He shared a chaotic and disadvantaged background with the victim.… In part due to the negative events and messages from his upbringing, it appears that he had difficulty experiencing a strong sense of mastery or competency in primarily adult worlds. This was likely compounded by the stress of his job whereby he was assigned to teach a program that was reportedly still being developed, i.e., without many instructions available… It is likely that this perfect storm of factors placed SPP at a high risk of boundary and rule violating behaviour .

Of note, he was consistently described by collateral sources as a strong rule follower and very boundaried in his interpersonal relationships.

As a result, his current behaviour was universally characterized as 'very out of character for him' by collateral sources. [My underlining added] ii - Judge Sarson's conclusions in relation to mitigating factors generally follow. [ 41 ] He stated: The Crown also submitted that SPP's degree of responsibility or level of moral culpability is high and that cases where offenders have been found to have a reduced degree of responsibility or level of moral culpability are limited to those cases where the offender has had significant mental health issues or issues related to cognitive development .

I do not agree with this proposition. An offender's moral culpability may be reduced by a number of factors , including mental health issues; cognitive development issues; intoxication in some, not all, cases; cultural factors such as systemic racism and overt racism; and an offender's background, for instance being a victim of abuse. In the present case, SPP was the victim of physical emotional and sexual abuse as a child. In addition, Dr.

Abramowitz outlined a number of other factors that created what she termed a 'perfect storm', including a strong identification with his job and being a helper of disadvantaged students, the partial breakdown of his relationship with his wife, and a more generalized lack of support social support and connection, his chaotic and disadvantaged background, and the stress of his job. Although I find SPP's degree of responsibility to be fairly high in light of his knowledge of the victim's particular vulnerability, as he was

aware of her circumstances at home and her mental health issues, I do find that it is somewhat reduced by his own background and personal circumstances at the time of the offences, which included dealing with the death of one of his brothers from liver cancer in January 2020 which contributed to SPP's level of distress at that time. (AB Vol. 1 of 3 Documents, pp. 113(21)-115(6)) [My underlining added] [ 42 ] I agree with the Crown that generally an offender must have suffered at the relevant times from significant mental health or cognitive development issues before their degree of responsibility or moral culpability can be considered diminished thereby so as to be a material mitigating factor on sentencing - see most recently Justice Derrick's reasons in R. v.

Wrice , 2024 NSCA 3 , at paras. 72-76 , wherein the Court had to sentence afresh the offender; and her reasons in R. v. R.B.W. , 2023 NSCA 58 , at paras. 7 , 16, 17, 22, 26, and 112. [ 43 ] I note that Chief Justice MacDonald and Justice Beveridge stated in their joint reasons in R. v. Hood , 2018 NSCA 18 , under the title "Was the sentence demonstrably unfit?": [8] [180] Judge Atwood imposed a 15-month conditional sentence with strict conditions to be followed by two years probation.… These were serious offences that must be denounced and deterred. At the same time, Ms.

Hood suffered from mental illness which does not pardon her but was a legitimate factor for the judge to consider on sentencing. She has already paid dearly; for example, by losing her teaching career along with the inevitable public humiliation . Her sentence is punitive. It adequately addresses and deterrence and denunciation. We would defer to it and allow it to stand. [My underlining added] [ 44 ] The Hood decision had been cited in Friesen , and in R. v. Marchand , 2023 SCC 26 , at para. 67 , and elsewhere.

The Supreme Court's following commentary in Marchand is also generally instructive [9] : [70] These errors mean this Court is now tasked with setting a fit and proportionate sentence for Mr. Bertrand Marchand . I agree with the Crown that given the particular circumstances of the luring in this case, there was no justification for departing from the existing sentencing range of 12 to 24 months for luring cases proceeding by indictment ( Morrison , at para. 177, citing Jarvis , at para. 31; A.F., at para. 75).

(1) Significant Factors to Determine a Fit Sentence [71] In addition to determining the gravity of the offence, determining the moral blameworthiness of the offender is key to setting a proportionate sentence. This requires identifying both mitigating and aggravating factors . Here, in order to examine Mr. Bertrand Marchand's blameworthiness and set a proportionate sentence, I provide a non-exhaustive list of aggravating and mitigating factors that have particular relevance in the context of luring . (

a) Mitigating Factors [72] Sentencing judges must consider the mitigating factors that arise on the facts of the particular case before them. Mitigating factors that commonly appear in luring cases include whether the offender pleaded guilty … whether the offender has expressed genuine remorse or gained insight into the offence … and whether the offender has undertaken rehabilitative steps such as counselling or treatment. ... Here, in her analysis of the sentence for the sexual interference count, the sentencing judge considered the pre-sentence report and rightly accounted for Mr.

Bertrand Marchand's guilty plea, lack of prior convictions, honesty and cooperation throughout the sentencing process, factors which were also relevant to the luring offence . [73] The personal circumstances of the offender can also have a mitigating effect on blameworthiness ( Friesen , at paras. 91- 92 ). In the context of determining the appropriate sentence overall, the sentencing judge in this case accounted for Mr. Bertrand Marchand's age at the time of the events, his stable family life, and the fact that he had maintained stable employment for around three years. Mr.

Bertrand Marchand overcame a substance use disorder during adolescence. At the time, this caused him health problems and panic attacks (sentencing reasons, at para. 22). An offender might have a mental disability or substance use disorder that imposes serious cognitive limitations, such that their moral culpability is reduced ( Friesen , at para. 91 ; see, e.g., Hood , at para. 180 ; … However, this factor is not as mitigating in Mr.

Bertrand Marchand's circumstances as his substance use did not overlap with the material time period (unlike Sinclair , at para. 67; Wolff , at para. 65). … [116] For the purposes of the constitutionality analysis for the one year mandatory minimum sentence as outlined in s. 172.1(2) (a), the first scenario is as follows: • The representative offender is a first-year high school teacher in her late 20s with no criminal record. The offender has been diagnosed with bipolar disorder. One evening, she texts her 15-year-old student to inquire about a school assignment. Feeling manic, she

directs the conversation from casual to sexual. The two meet that same evening in a private location where they both participate in sexualtouching. The offender does not engage inappropriately with the student on any further occasions. The offender pleads guilty andexpresses remorse on sentencing. See Hood, at para. 150. …

(1) A Fit Sentence for Luring in the First Reasonably Foreseeable Scenario [124] In Hood, when the Nova Scotia Court of Appeal considered a scenario similar to that of the first scenario proffered here, itconcluded that the hypothetical crime would likely attract a suspended sentence with probation or, at most, a brief period ofincarceration (para. 154). Instead, the court found that a global fit sentence for the representative offender would be a suspendedsentence with a term of probation. However, Hood was decided before this Court's decision in Friesen.

The fit sentence assignedby the Court of Appeal in Hood is not reflective of the directive from Friesen that sexual offences against children are violent crimesthat "wrongfully exploit children's vulnerability" and as such "[s]entences for these crimes must increase" (para. 5).

Interestingly, inFriesen, this Court cited Hood as an example of an offender whose serious cognitive limitations would likely reduce her moralculpability at sentencing (para. 91). [125] In the unique circumstances of this hypothetical scenario, the inherent wrongfulness and severity of the offence must bebalanced against the offender's mental illness, remorse, and prospects of rehabilitation.

A fit sentence for the luring offencecommitted by the representative offender in the first scenario is a 30-day intermittent sentence. [126] The representative offender is a high school teacher in her late 20s who committed a serious breach of her professional duties andinappropriately directed a conversation with her 15 year old student towards sexual matters with the intention of facilitating thesecondary offence under s. 151 of the Criminal Code.

Although this teacher would presumably be relatively junior as compared to hercolleagues, she holds a position of trust and authority in relation to her student per s. 718.2(a)(iii). A breach of trust is "likely to increasethe harm to the victim and thus the gravity of the offence" (Friesen, at para. 126). The severity of such a breach is not to be taken lightly:teachers are entrusted to educate and serve as role models for children, not to sexualize them for their own purposes.

In this case inparticular, the representative offender exploited her position of authority in the commission of the offence, including by using herrelationship to the victim to gain access by texting him under the guise of discussing homework. This element increases her moralblameworthiness and serves as an aggravating factor.

As well, the wide age gap between the offender and the victim is furtheraggravating: as the offender was in her late 20s, there is at least a 10 year age difference. [127] At the same time, it is important to acknowledge that while the representative offender's conduct was serious, it likely falls at thelower end of the range of gravity in all the circumstances. All offences of this type have the potential to cause substantial harm tovictims. However, it remains significant that this offender's actions were spontaneous and of short duration, rather than malicious andcalculated.

Unlike in many other child luring cases that are typically associated with prolonged contact, and thereby far greater harm, inthis case there is no evidence of grooming or long-term planning. While these factors are not mitigating, they do provide insight into theoverall gravity of the offence and culpability of the offender, which is comparatively lower than in other cases. It is well established thatspontaneous or spur of the moment crimes should be punished less severely than planned or premeditated ones (see, e.g., R. v. Laberge(1995), 1995 ABCA 196 , 165 A.R. 375 (C.A.), at para. 18; R. v.

Murphy, 2014 ABCA 409, 593 A.R. 60, at para. 42; R. v.Vienneau, 2015 ONCA 898, at para. 12 ). Furthermore, the representative offender entered a guilty plea, expressed remorse onsentencing and has no prior criminal record - all of which are significant mitigating factors. [128] Finally, in assessing the offender's moral culpability, it is significant that the representative offender in the first scenariowas diagnosed with bipolar disorder and her symptoms were similar to the actual offender described in Hood. At trial, Ms. Hood'scriminal responsibility was an issue of real controversy (R. v.

Hood, 2016 NSPC 19, 371 N.S.R. (2d) 324; see also the reasons forsentence in R. v. Hood, 2016 NSPC 78). Although the trial judge did find her to be criminally responsible, he accepted that Ms. Hoodexperienced bipolar disorder type I. As a result, Ms. Hood's "mania rendered her profoundly disinhibited and prone to risk taking,elevated by a sense of invincibility, and impaired by defective insight and inhibition" ((Hood (sentencing reasons), at para. 55). The sentencing judge in Hood found that her symptoms had "a nexus with her crimes" (para. 55).

Similarly, in theinstant case the representative offender's bipolar diagnosis, though it serves as no justification or excuse for her behaviour,attenuates her degree of responsibility and acts as a mitigating factor on sentencing (R. v. Ayorech, 2012 ABCA 82, 522 A.R. 306,at paras. 10 13; R. v. Tremblay, 2006 ABCA 252, 401 A.R. 9, at para. 7; R. v. Belcourt, 2010 ABCA 319, 490 A.R. 224, at para. 8; R. v.Resler, 2011 ABCA 167, 505 A.R. 330, at para. 14).

Where a mental illness existed at the time of the offence and contributed to theoffender's behaviour, sentencing judges should consider prioritizing rehabilitation and treatment through communityintervention (R. v. Lundrigan, 2012 NLCA 43, 324 Nfld. & P.E.I.R. 270, at paras. 20-21; R. v. Ellis, 2013 ONCA 739, 303 C.C.C. (3d)228, at para. 117).

This is especially the case given that offenders with mental illnesses are often distinctly negatively affected byimprisonment (see Ruby, at §§5.325 and 5.332). [129] Even so, while rehabilitation must be prioritized for this offender, a non-custodial sentence is not appropriate given theseriousness of the offence. In the result, I find a 30 day intermittent sentence is a fit sentence for the representative offender atbar. Such a sentence recognizes the inherent seriousness and potential harms associated with the offence and appropriately denounces

her conduct, while also being mindful of her diminished moral blameworthiness and the mitigating factors at play. [My bolding added] [ 45 ] During his s. 12 Charter analysis, Judge Sarson stated, while speaking of an appropriate sentence range regarding SPP's case: I conclude that, in ensuring that I impose a sentence that is proportionate to the gravity of the offences and the degree of responsibility of the offender, the significant aggravating factors of breach of trust and the age of the victim, as well as primary consideration being given to the principles of denunciation and deterrence, and the significant psychological harm caused to the victim by the actions of SPP, are balanced by the circumstances of the offences and the mitigating factors of SPP's guilty pleas and, to a lesser extent, his loss of employment , his background and personal excerpts that is, his lack of a prior criminal record and the breach of his right under

section 11 (

b) to be sentenced within a reasonable period of time. (AB Vol. 1 of 3 Documents, p. 93) [My underlining added] [ 46 ] In my opinion, SPP's loss of employment in these circumstances could properly be considered as a "collateral consequence" (which is akin to a mitigating factor on sentence), but only to an appropriate degree. [ 47 ] As the joint reasons in Hood , 2018 NSCA 18 , at para. 150 , stated: … She has already paid dearly; for example, by losing her teaching career along with the inevitable public humiliation . [ 48 ] Later that same year, in R. v.

Suter , 2018 SCC 34 , Justice Moldaver stated: [3] That said, the circumstances of this case are unique. As we shall see, the fatal accident was caused by a non-impaired driving error, and Mr. Suter refused to provide the police with a breath sample because he received bad legal advice. The lawyer he called from the police station expressly told him not to provide a breath sample, and Mr. Suter demurred. Added to this, sometime after the accident, Mr. Suter was attacked by a group of vigilantes who used a set of pruning shears to cut off his thumb .

His wife was also attacked in a separate incident. [4] Sentencing is a highly individualized process. A delicate balancing of the various sentencing principles and objectives is called for, in line with the overriding principle that a "sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender" ( s. 718.1 of the Criminal Code ). Accordingly, there will be cases where the particular circumstances of the offence and/or the offender call for a sentence that falls outside of the normal sentencing range.

This is one such case. … [45] The sentencing judge found, correctly in my view, that the vigilante violence experienced by Mr. Suter could be considered - to a limited extent - when crafting an appropriate sentence . With respect, the Court of Appeal erred in concluding otherwise. This error also contributed to the 26-month custodial sentence it imposed. [46] … Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to look at collateral consequences.

Examining collateral consequences enables a sentencing judge to craft a proportionate sentence in a given case by taking into account all the relevant circumstances related to the offence and the offender . [47] There is no rigid formula for taking collateral consequences into account.

They may flow from the length of sentence, or from the conviction itself :… In his text The Law of Sentencing (2001), Professor Allan Manson notes that they may also flow from the very act of committing the offence: As a result of the commission of an offence , the offender may suffer physical, emotional, social, or financial consequences.

While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation . [Emphasis added; p. 136.] I agree with Professor Manson's observation, much as it constitutes an incremental extension of this Court's characterization of collateral consequences in Pham.

In my view, a collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender. [48] Though collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2 (

a) of the Criminal Code - as they do not relate to the gravity of the offence or the level of responsibility of the offender - they nevertheless speak to the "personal circumstances of the offender" ( Pham , at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid .; s. 718.2 (

b) of the Criminal Code . [2] The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her

circumstances . Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the others, rendering a given sentence unfit. [ 49 ] Collateral consequences do not need to be foreseeable, nor must they flow naturally from the conviction, sentence, or commission of the offence. In fact, "[w]here the consequence is so directly linked to the nature of an offence as to be almost inevitable, its role as a mitigating factor is greatly diminished " ( Manson , at p. 137).

Nevertheless, in order to be considered at sentencing, collateral consequences must relate to the offence and the circumstances of the offender . [My bolding added] [49] My overall conclusion is that Judge Sarson was not in error when he made the aforementioned references to factors that could mitigate/reduce SPP's sentence. 5 - Did Judge Sarson err: in his decision regarding whether there was a breach of s. 11(

b) of the Charter and consequently effecting a reduction of SPP's sentence? [10] i -

Section 11(

b) Charter - The applicable standard of review and conclusions [ 50 ] My colleague Justice Brothers captured well the state of the jurisprudence in her reasons from Robb v. R. , 2023 NSSC 313 (paras. 8-11 ), although I bear in mind this was in relation to the period of time between laying of the charge and the end of trial evidence per Jordan , as opposed to a sentence-process delay. [ 51 ] She stated in

summary: [11] [11] The issues to be determined on this appeal therefore attract two different standards of review: 1. The characterization, attribution and/or deduction of delay should be examined through the lens of the standard of deference; and, 2. The determination of whether the total delay was unreasonable should be examined through the lens of the standard of correctness. ii - Judge Sarson erred, but not in a material manner [ 52 ] Judge Sarson erred by relying on the reasoning and result in R. v.

Charley , 2019 ONCA 726 ; however , on a proper analysis, Judge Sarson's conclusion remains valid: the delay between SPP's guilty pleas and his sentencing date was a violation which exceeded the "within a reasonable time" standard per s. 11(

b) of the Charter . [12] [ 53 ] The Crown appeals claiming that Judge Sarson erred in finding that the time it took to sentence [SPP] constituted a breach of s. 11(

b) of the Canadian Charter of Rights and Freedoms between the date when SPP pleaded guilty ( April 28, 2021) and the date his sentence was imposed ( December 9, 2022 ), and therefore erred when he reduced the sentence as a remedy. [ 54 ] That total time interval was 19 months. [ 55 ] Let me briefly set out the factual background. [ 56 ] Judge Rickola Brinton was considered seized with the matter after she accepted the guilty pleas on April 28, 2021 and dealt with pre-sentencing matters on September 29, 2021, which were adjourned to December 3, 2021. [ 57 ] Counsel were first advised, on November 25, 2021, that Judge Brinton was off on leave indefinitely. [ 58 ] It was not until April 22, 2022, that Chief Judge Williams advised the parties that a new Judge would have to be appointed to continue the case - the matter was put over to July 13, 2022, and decisions on preliminary issues (i.e. arguments that the offences' mandatory minimum sentences violated s. 12 of the Charter ; and excessive delay violated s. 11(

b) of the Charter ) and sentence submissions were anticipated for September 6, and possibly also on October 26, 2022. [ 59 ] Pursuant to s. 669.2 CC , Judge Sarson only took over this case on July 18, 2022. [ 60 ] According to Judge Sarson, SPP argued that of the 19 months overall delay "… even deducting delay caused by or attributable to the defence, the total delay is between 14 and 15 and a half months "; whereas the Crown argued the " net delay … is 178 days …" [6 months] and the Judge "… should conclude the 178-day delay does not violate SPP's 11(

b) rights". (AB Vol. 1 of 3 Documents, pp.13-15) [ 61 ] Judge Sarson concluded there was 9.5 months of net delay . When I apply the deferential standard of review to his conclusion, I cannot say that he erred in that respect. [ 62 ] He adopted the reasoning of Justice Doherty in R. v. Charley , 2019 ONCA 726 , which specifically concludes that: whether the sentencing was completed "within a reasonable time" as required by s. 11(

b) of the Charter , should be measured from date of guilty plea/finding of guilt to the sentencing date; (para. 58); and that in Ontario, a five-month presumptive (reasonableness of delay) ceiling was appropriate, absent exceptional circumstances (paras. 85-87). [13]

[ 63 ] Judge Sarson placed the onus on the Crown to justify delays that exceeded the 5-month ceiling. (AB Vol. 1 of 3 Documents, p. 20) [ 64 ] He then examined the total period of delay between April 28, 2021, and December 9, 2022 , with a view to characterizing periods of delay as "institutional", Crown delay, Defence delay, or "exceptional circumstances" delay. (AB Vol. 1 of 3 Documents, p. 21) [ 65 ] The Record reflects that on April 28, 2021, at the time of his pleas of guilty, SPP sought both a Pre-Sentence Report ["PSR"] and a Forensic Sexual Behaviour Assessment. (AB Vol. 2 of 3 Evidence, p. 177(11) and p. 179(12)) [ 66 ] He had already been living in Ontario for some time and remained there on April 28, 2021.

He intended to continue to live in Ontario at least until the date of his sentencing. [ 67 ] The parties agreed that there was Defence waiver of delay on September 29, 2021, but disagreed for how long that waiver was effective (see Mr.

Pink's words, AB Vol. 2 of 3 Evidence, p. 187(10) and later at p. 190(4)) - did SPP waive delay: to October 25, 2021 when the Court was informed that Judge Brinton was on leave and the parties expected the December 3 sentencing date would have to be adjourned; or, to November 25, 2021,on which date the sentencing actually was adjourned because of the unavailability of Judge Brinton; or, to December 3, 2021 which was the date originally set for the sentencing hearing? [ 68 ] Judge Sarson concluded (AB Vol. 1 of 3 Documents p. 23): I find that this ambiguity is a non-issue in light of how I intend to treat the next relevant time period , that ending on either April 12th, 2022, which was the defence date or April 22, 2022, the Crown date. … I accept the Crown's submission that the time that Judge Brinton was unavailable to continue with the matter while she was still seized meets the definition of exceptional circumstances set out in the Jordan decision, and that time will be deducted from the period of delay … With respect to the differing positions on the end date for the aforementioned [exceptional circumstances] time period, the defence argues April 12th is the relevant date.

That is the date that Chief Judge Williams was advised that Judge Brinton was on an indefinite leave. The Crown argues that April 22nd [2022] is a relevant date . That is the date that the parties appeared before Chief Judge Williams in Dartmouth Provincial Court and confirmed that they wished for a new judge to be appointed under

section 669.2 of the Criminal Code . On this point, I agree with the Crown position . … The Crown then submits that the delay between May 16th, 2022, and July 13th, 2022, should be attributed to the defence… The difficulty I have with the Crown submission on this point is that … Without more information or an evidentiary foundation, I cannot agree with the Crown on this point. As a result, the time between April 22, 2022, and July 13, 2022, will be attributed to institutional delay .

The parties are in agreement with respect to the period between July 13th, 2022 and September 6, 2022 [Defence waiver]… The parties are also an agreement with respect to the time between September 6, 2022, and October 26, 2022, that is institutional delay . As a result, the total delay that I have calculated to be institutional delay is 286 days : 154 days from April 28th to September 29, 2021 ; 82 days from April 22, 2022, to July 13, 2022 ; and 50 days from September 6, 2022, to October 26, 2022 . This is the equivalent of approximately 9 and one-half months .

This is clearly above the presumptive five- month ceiling, as set out in the Charley decision that I have adopted… I find that the delay is unreasonable and [SPP]'s rights under

Section 11(

b) of the Charter have been violated… With respect to remedy, the defence submits that the appropriate remedy is a stay in the imposition of sentence or a stay in the enforcement of sentence. I am not prepared to grant either of those remedies. … in all the circumstances, I find that the appropriate remedy for the violation of [SPP]'s rights under

Section 11(

b) of the Charter is a reduction in his sentence ." [14] . (AB Vol. 1 of 3 Documents, p. 25-27) [ 69 ] The clear implication is that Judge Sarson found as a result of Judge Brinton's unavailability while being seized with the matter, that the time interval constituted neutral "exceptional circumstances", and these existed between September 29, 2021, and April 22, 2022. [ 70 ] Judge Sarson did not specify the sentence that he would have otherwise considered appropriate in the circumstances - or by how much time he "reduced" that sentence, as a result of the breach of s. 11(

b) of the Charter . [ 71 ] While I appreciate that the Provincial Court dockets are extremely busy, a better practice would be to expressly identify what sentence the trial judge otherwise finds is "fit" in all the circumstances, and then to expressly identify by how much the sentence will be reduced for what the trial judge has found to be a s. 11(

b) Charter violation - see in the appeal context: R. v. Hartling , 2020 ONCA 243 , at paras. 120-123 . [ 72 ] Later in his sentencing decision, he stated: The bottom line of those decisions was that I found the appropriate remedy for the

Section 11(

b) violation was a reduction in sentence. [After applying the reduction] I held that a proportionate sentence in this case would be a jail sentence of 90 days on the low end and six months on the high end or a conditional sentence order plus a lengthy period of probation . (AB Vol. 1 of 3 Documents, p. 99) [My bolding added] [ 73 ] Judge Sarson used the 5-month presumptive reasonable delay ceiling from the Ontario Court of Appeal decision in Charley , 2019 ONCA 726 . [ 74 ] His use of that reasoning is subject to a correctness standard of review. [ 75 ] Judge Sarson's error of law arises from his adopting the reasons and result from Charley . [ 76 ] He found that the offending delay period herein was nine and a half months, and merely because it was greater than 5 months, that therefore a sentence reduction (not precisely identified) was appropriate.

[77] However, with all due respect, given the qualitative statutory language in s. 720 CC - "as soon as practicable" - it would seemcounter to Parliament's legislative intention to impose a 5-month presumptive sentence process delay ceiling. [78] After all, s. 11(

b) of the Charter itself uses similar qualitative language: Any person charged with an offence has the right…(

b) to be tried within a reasonable time. [79] The use of qualitative language, to set limitations on the time interval within which procedural matters must be completed incriminal cases, allows for greater flexibility, and nuanced consideration to be given to the relevant contextual factors.[15] [80] Violations of s. 11(

b) of the Charter have been identified and distinguished within the 3 discrete stages of a trial level criminalproceeding: 1. From the laying of a criminal charge to the end of the trial ("charge to trial" time) - R. v. Jordan, 2016 SCC 27 , [2016] 1SCR 631, per Moldaver J. - presumptively up to 18 months is considered "reasonable" delay at the Provincial Court trial proceedingslevel; 2. From the end of the trial to a decision regarding guilt ("verdict deliberation time") - R. v.

K.G.K., 2020 SCC 7 at paras. 65-6 perMoldaver J. - the accused must establish that "verdict deliberation took markedly longer than they reasonably should have in all of thecircumstances… The reason the threshold is so high - 'markedly longer' rather than just 'longer' or some lesser standard - is because ofthe 'considerable weight' that the presumption of [judicial] integrity carries. Stays in this context are significant and although distinctfrom stays below the ceiling, they too are likely to be 'rare' and limited to 'clear cases' (Jordan, para. 48)"; [16] 3.

From the plea of guilty/finding of guilt to the end of the sentencing ("sentencing-process" time). [81] In relation to sentencings, Provincial Court Judges and Supreme Court Justices alike are required by s. 720 CC, to, "as soon aspracticable after an offender has been found guilty, conduct proceedings to determine the appropriate sentence to be imposed". [82] In the Encyclopedic Dictionary of Canadian Law, Kevin P. McGuinness, Lexis-Nexis Canada Inc. 2021 - "practicable" isdefined as: 1. That which is capable of being done or put into effect: the plan was expensive, yet practicable; 2.

Capable to be done or put into practice successfully or of being effected or accomplished. In contrast, 'practical' pertains to somethingthat is sensible, practicable pertains to that which is possible. [83] The word "practicable" in s. 720 suggests no fixed maximum delay ceiling for sentencings would have been intended byParliament.

Parliament intended a contextual approach is required to assess whether a sentencing was completed "as soon as practicableafter an offender has been found guilty". [84] After Charley was decided in 2019 (and Hartling in April 2020) the Supreme Court of Canada issued its decision in R. v.K.G.K., 2020 SCC 7, on September 25, 2020. [85] Therein, at paras. 65-6,the Court stated that, if an accused wishes to establish a violation of s. 11(

b) Charter regarding post-verdict delay, they must establish that "verdict deliberation took markedly longer than they reasonably should have in all of thecircumstances… The reason the threshold is so high - 'markedly longer' rather than just 'longer' or some lesser standard - is because ofthe 'considerable weight' that the presumption of [judicial] integrity carries." [86] The Supreme Court of Canada did not pick a fixed reasonable maximum "verdict deliberation" delay ceiling, [17] but ratherendorsed a qualitative test of whether there was "verdict deliberation" delay. [87] They did so because of the presumption of judicial integrity. [88] The presumption of judicial integrity continues during the sentence-process time interval. [89] Typically, in contrast to verdict-deliberation time (there was none here because of the guilty pleas/although there wasdeliberation time required in relation to the ss. 11(

b) and 12 Charter applications) there are other matters not within the Judge'sexclusive control after a finding of guilt or plea of guilty - e.g.: the filing of expert and other reports (Pre-Sentence Reports/GladueReports/IRCAs (Impact of Race and Cultural Assessment - in relation to African Nova Scotian offenders, as developed by Robert S.Wright, MSW, which were initially endorsed by Judge Anne Derrick, PCJ, (as she then was) in R. v. "X", 2014 NSPC 95 (see morerecently R. v.

Anderson, 2021 NSCA 62)). [90] Such delay is tethered to the specific judge who has responsibility for the matter (usually who either has heard the trial orconducted the s. 606 CC enquiry) which is different than "institutional" delay under the Jordan principles. [91] Under the Jordan "date of charge-to end of trial, institutional delay" analysis, one examines the actions or inactions of one ormore judges, an accused person (and their counsel), Crown counsel (and its agents, including offence investigators) and other"institutional" factors. [92] This involves a much broader context, and the fundamental importance of doing so, as a matter of fairness to an accused, to theCrown, witnesses including victims, and the public. [93] With all due respect to the Ontario Court of Appeal, but in light of the wording in s. 720 CC and the reasoning in K.G.K.,

sentencing-process delay is more appropriately assessed using a qualitative rather than a numerical standard of what is "within areasonable time" - particularly where presumption of judicial integrity remains relevant. [94] I add here that in Hartling, the Ontario Court of Appeal recognized that, in any event, historically, the jurisprudence hasconsistently properly considered excessive (but not so much so as to constitute a violation of s. 11 of the Charter) delay to be a mitigatingcircumstance in sentencings: 117 The process of sentencing is highly individualized with reference to the offender.

It also involves discretion on the part of thesentencing judge particularly when a sentence is reduced to reflect relevant mitigating circumstances. One such mitigatingcircumstance is delay from conviction to sentence. 118 Delay in sentencing that does not rise to the level of a Charter breach has long been considered a factor in mitigation of sentence: R.v. Cooper (No.2) (1977), (ON CA), 35 C.C.C. (2d) 35 (Ont. C.A.), R. v. Bosley (1992), (ON CA),59 O.A.C. 161. 119 Delay in sentencing that breaches an offender's Charter rights should also be considered a mitigating circumstance.

But it is one thatshould result in more than standard mitigation; it should result in enhanced mitigation. This would meet the objectives and principles ofsentencing codified in s. 718 of the Criminal Code while also providing a meaningful remedy for the Charter breach. 120 Delay was not considered when the appellant was sentenced to 30 months incarceration.

The delay which led to a Charter breach isa circumstance giving rise to enhanced mitigation. 121 I conclude that the appellant is entitled to enhanced mitigation to reduce the sentence. 122 As with mitigating circumstances generally, there can be no automatic or formulaic calculation of the reduction in sentence.Nor can a firm principle be established based on one case. The jurisprudence will - as always - develop with each case determined onits own particular facts, considering the offence, the offender, the length of the delay, the circumstances of the delay and anyother relevant factors.

Here, the offence was serious. The appellant did nothing to contribute to the delay. The delay was caused by afailure to provide adequate services to a vulnerable segment of society. The appellant was required to wait over a year to have his futuredetermined. These are serious factors which caused a significant Charter breach. 123 In the circumstances here, I would reduce the sentence by five months. [My bolding added] [95] Generally, there should be no material difference in outcomes when assessing sentence-process delay cases, whether one usesthe s. 720 CC "as soon as practicable" criterion, or the K.G.K.

"took markedly longer than they reasonably should have in all of thecircumstances". [96] I am inclined to the view that, if asked, the Supreme Court of Canada would likely reject a national Jordan-like presumptivefixed maximum time interval for sentencing-process delay, such as was preferred in Charley. [97] On the other hand, the Supreme Court of Canada would likely defer to Provincial and Territorial Courts of Appeal who chooseto do so, much like it would defer to those Courts setting sentencing ranges, depending on their jurisdictional circumstances. [98] I find more consistent with the tenor of the Supreme Court of Canada's position to date, what the Quebec Court of Appealstated in R. v.

DeBlois, 2021 QCCA 1093, per Rancourt JA: [18] 131 In the present case, the judge calculates a total period of 40 months and 11 days. In doing so, it incorrectly includes the length of itsdeliberations. I note that, at the time of his decision, however, the judge did not have the benefit of the light of R. v. K.G.K., J.B. c. R.and R. v. Rice. 132 However, he was correct in excluding the post-conviction period from his calculation. To date, the Supreme Court has not ruled onhow

section 11(

b) of the Charter should be applied in assessing the reasonableness of delay after conviction. 133 As a result of the Supreme Court's deliberate deferral of the issue of the time between verdict and sentencing to another time,appellate courts across the country have taken different approaches in the application of

section 11(

b) of the Charter.

134 The Ontario Court of Appeal used Jordan as a basis for setting a 5-month ceiling beyond which the time between conviction and sentencing is presumptively unreasonable. This Court has so far taken a more flexible and modulated approach, stating that

section 11(

b) of the Charter will only apply "if the sentencing procedures ... drag on unduly, leaving aside the issue of ceilings" . 135 That being the case, the delay of 11 months and 28 days between the appellants' conviction and sentencing is due in large part to the complexity of the issue of mandatory minimum sentences before the judge. In the light of these particular circumstances, I am of the view that the sentencing proceedings have not been unduly lengthy. Accordingly, the delay following the appellants' conviction is not unreasonable under

section 11(

b) of the Charter . [My bolding added] [ 99 ] Although Judge Sarson erred in law in adopting the reasoning from Charley , on my own examination of the circumstances, I agree with his conclusion that there was a breach of s. 11(

b) of the Charter . [19] [ 100 ] The nine and one half months sentencing-process delay was not completed "within a reasonable time" - or conversely, it "took markedly longer than it reasonably should have in all the circumstances". [20] [ 101 ] I agree that a sentence reduction was appropriate, and although he did not numerically specify the reduction amount, I am satisfied that I should defer to his decision in that regard. 6 - Was the sentence imposed (Eight months CSO plus 3 years’ probation) demonstrably unfit? [ 102 ] Although the sentence on its face could be characterized by some as lenient, especially after the Supreme Court of Canada's decision in Friesen , 2020 SCC 9 , on closer examination I am satisfied that the sentence is not demonstrably unfit. [ 103 ] I reiterate here what Justice Derrick stated in R.B.W. : [51] In assessing the issue of demonstrable unfitness, appellate review must focus on whether the sentence is proportionate to the gravity of the offence and the degree of the offender's responsibility .

Proportionality is the fundamental principle of sentencing. [52] On appeal, "wide latitude" is to be given to sentencing judges who are, [11] … in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in this regard. The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention.

Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit. [12] In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender . The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be.

In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task . As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.

Moreover, if appellate courts intervene without deference to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of the system and the authority of trial courts… [My bolding added] [ 104 ] It is also helpful to recall Justice Moldaver's comments in R. v.

Suter , 2018 SCC 34 : [24] In Lacasse , a majority of this Court held that an appellate court could only interfere with a sentence in one of two situations: (1) where the sentence imposed by the sentencing judge is "demonstrably unfit" (para. 41); or (2) where the sentencing judge commits an error in principle, fails to consider a relevant factor, or erroneously considers an aggravating or mitigating factor, and such an error has an impact on the sentence imposed (para. 44).

In both situations, the appellate court may set aside the sentence and conduct its own analysis to determine a fit sentence in the circumstances. [25] A sentence that falls outside of a certain sentencing range is not necessarily unfit: see Lacasse , at para. 58 ; Nasogaluak , at para. 44. Sentencing ranges are merely guidelines and are just "one tool among others that are intended to aid trial judges in their work" ( Lacasse , at para. 69 ).

It follows that deviation from a sentencing range does not automatically justify appellate intervention ( ibid ., at para. 67). [ 105 ] As of December 9, 2022, there was no post- Friesen established range of sentence for (summary conviction) child luring in Nova Scotia. [ 106 ] Regarding the range of sentences for (summary conviction) sexual assaults on children in circumstances similar to the case at Bar, (two kisses on separate occasions, lasting two seconds each), I have been unable to find any cases which specifically involve such

freestanding circumstances, as opposed to, kisses in association with other sexually assaultive behaviour. [107] As of December 9, 2022, there was no post-Friesen established range of sentence for (summary conviction) sexual assaults onchildren in similar circumstances. [108] However, the majority's reasons in Marchand (para. 116), wherein their first reasonable hypothetical involving a female teacher inher late 20s who has bipolar disorder, which is implicated in her texting a student to facilitate a later sexual interference offence inrelation to her student, does provide some guidance. [109] Justice Martin for the majority stated: [124] In Hood, when the Nova Scotia Court of Appeal considered a scenario similar to that of the first scenario proffered here, itconcluded that the hypothetical crime would likely attract a suspended sentence with probation or, at most, a brief period of incarceration(para. 154).

Instead, the court found that a global fit sentence for the representative offender would be a suspended sentence with a termof probation. However, Hood was decided before this Court's decision in Friesen. The fit sentence assigned by the Court of Appeal inHood is not reflective of the directive from Friesen that sexual offences against children are violent crimes that "wrongfully exploitchildren's vulnerability" and as such "[s]entences for these crimes must increase" (para. 5).

Interestingly, in Friesen, this Court citedHood as an example of an offender whose serious cognitive limitations would likely reduce her moral culpability at sentencing (para. 91). [125] In the unique circumstances of this hypothetical scenario, the inherent wrongfulness and severity of the offence must bebalanced against the offender's mental illness, remorse, and prospects of rehabilitation. A fit sentence for t

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