R v. Pardy, 2023 NSSC 387

SUPREME COURT OF Nova Scotia Citation: R v. Pardy, 2023 NSSC 387 Date: 20231201 Docket: CRS-525315 Registry: Halifax Between: Marshall Gordan Pardy Appellant v. His Majesty the King Respondent Judge: The Honourable Justice D. Timothy Gabriel Heard: September 26, 2023, in Sydney, Nova Scotia Written Decision: December 1, 2023 Counsel: James Snow, for the Appellant Darcy MacPherson, for the Provincial Crown, Respondent By the Court: [ 1 ] In this appeal, we deal with a comparatively rare situation: both the appellant and respondent seek the same result.

They ask this Court to allow the appeal. [ 2 ] On July 5, 2023, in the Nova Scotia Provincial Court, the Sentencing Judge sentenced the appellant/accused to 12 months of custody. This was to be followed by 12 months probation, in addition to ancillary orders relating to weapons prohibition and DNA. The sentencing decision is reported in R v. Pardy , 2023 NSPC 39 . [ 3 ] The Sentencing Judge declined to accept a joint recommendation put forward by the Crown and Defence, which had called for consecutive conditional sentence orders, for total length of 16 months.

The recommendation had also included an additional 24 months probation, and provided for the ancillary orders which the Sentencing Judge ultimately imposed. [ 4 ] The parties argue that the Sentencing Judge ought not to have disregarded (or "jumped") the joint recommendation. They ask this court, sitting in its capacity as a

summary conviction appeal court, to allow the appeal, overturn the sentence, and impose the sentence which they had recommended, instead. Mr. Pardy has been released, on conditions, pending the outcome. Background [ 5 ] On March 7, 2003, the appellant pled guilty to three counts spanning two separate Informations. Specifically, he admitted his guilt with respect to charges pursuant to sections 267(

c) and 264.1(a), which had occurred between September 17 and September 21,

2021 (which involved the complainant, PR). He also pled guilty to another charge pursuant to

section 267(b), which had occurred on or about February 9, 2022. The complainant in the latter charge was OP, the infant son of the appellant and PR. [ 6 ] The imposition of sentence was adjourned to May 11, 2023 and a presentence report was ordered. On May 11, 2023, the appellant appeared before the Sentencing Judge. After listening to the Crown's recitation of the facts, and before sentencing submissions had begun, the Sentencing Judge requested counsel to provide case law to support any proposed recommendation for sentence.

The sentencing was adjourned to June 5, 2023. [ 7 ] On June 5, 2023, case law had been filed by both Crown and defence, and sentencing submissions were made. The parties provided a joint recommendation, which was to provide for a 12-month conditional sentence order ("CSO") in relation to the charge under

section 267(b), and a concurrent four-month CSO in relation to the ss. 267(

c) and 264.1(1)(

a) charges. This, in turn, was to be followed by 24 months of probation, as well as the ancillary DNA and weapons prohibition orders. [ 8 ] The Sentencing Judge evidenced some concern with respect to the jointly recommended sentence. He asked the Crown to attempt to obtain a victim impact statement from the Department of Community Services in relation to the child OP, since the latter had, by this time, been taken into care. The sentencing was once again adjourned, this time to July 5, 2023.

No victim impact statement was ever provided by either PR or OP (or anyone else on OP’s behalf). [ 9 ] On July 5, 2023, a revised joint recommendation was presented by counsel to the court. This one called for the imposition of CSO's to run consecutively (rather than concurrently) for a total of 16 months. The recommendation for 24 months probation and the ancillary orders remained extant. [ 10 ] On that date, as noted above, the Sentencing Judge rejected the revised joint recommendation, and read his decision (the citation has been noted above) into the record.

In so doing, he imposed the sentence which is also noted above. The sole issue engaged in this appeal is whether he erred in doing so. Before dealing with this issue, I will consider the appropriate standard of review. Standard of Review [ 11 ] In R v. Friesen , 2020 SCC 9 , the Court confirmed that an appellate court may only intervene where:

a) the sentence is clearly unreasonable; or

b) the Sentencing Judge committed an error in principle (which includes an error of law, failure to consider a relevant factor, or erroneously considering an aggravating or mitigating factor), and such an error had an impact on the sentence ( Friesen para 26 ). [ 12 ] In Beck v. R , 2021 NBCA 33 , Quigg, JA discussed the interplay between these principles and those set out in R v.

Anthony- Cook , 2016 SCC 43 , within the context of judicial failure to accept a joint recommendation: [15] If the trial judge is still not satisfied after hearing the circumstances surrounding the joint submission, the judge should notify counsel of his or her concerns and provide an opportunity for further submissions (para. 58). If still unsatisfied with the joint submission after hearing counsels’ submissions, the trial judge should provide an opportunity for the accused to withdraw his or her guilty plea (para. 59).

Finally, if the trial judge decides to depart from the joint submissions after the above steps have been exhausted, the judge should provide “clear and cogent reasons” for doing so (para. 60). [16] With that said, one point of clarification must be made: the issue on appeal is not whether there was a procedural defect in the sentencing hearing. Rather, based on the appropriate standard of review, the issue is whether the trial judge committed an error in law and whether that error impacted the sentence imposed.

In other words, a trial judge’s failure to follow the framework set out in Anthony- Cook is not, on its own, sufficient to warrant appellate intervention. There must be more.

(1) The trial judge committed legal errors that inevitably impacted the sentence imposed [17] It is clear the trial judge was aware she could not reject the joint submission unless she was satisfied it was contrary to the public interest. She concluded it was. This, of course, raises the question: despite the procedural errors committed by the trial judge, should the sentence be upheld given the trial judge nonetheless concluded the sentence was contrary to the public interest?

More specifically, did her error have any impact on the sentence ultimately imposed? [18] The Supreme Court’s treatment of the trial judge’s analysis in Anthony-Cook is instructive on this point as it addresses a situation such as the present one : The Crown submits that on any test, the trial judge was entitled to depart from the joint submission. Respectfully, I cannot agree.

Setting aside that the trial judge failed to apply the proper test – he asked only whether the joint submission was fit – he failed to take into account the important systemic benefits of joint submissions, and the corresponding need for them to be reasonably certain . In terms of the custodial sentence, it appears the trial judge treated the joint submission as though it was a conventional sentencing hearing. With respect, he erred in doing so . The parties made a clear and firm recommendation on the appropriate sentence. Importantly,

the Crown did not resile from the joint submission, but maintained his position that he was seeking a further period of 18 months in custody even after he learned of the calculation error. In my respectful view, there was no basis for the trial judge to substitute his opinion for the considered agreement of counsel. The custodial term proposed, while low, was not so low as to bring the administration of justice into disrepute or be contrary to the public interest.

It was close to the range of sentence identified by the trial judge, and, as I have said, joint submissions promote the smooth operation of the criminal justice system. The appellant gave up his right to a trial and any self-defence argument he may have had. In the end, the trial judge’s deviation from the recommended custodial sentence – by only six months – amounts to little more than tinkering. [paras. 61-63] [Emphasis added] [ 13 ] Justice Jamie Campbell had occasion to elaborate upon these principles in R v. Miller , 2021 NSSC 38 .

In so doing, he observed: [16] The issue of whether a jointly recommended sentence should be accepted involves legal questions that permit appellate scrutiny. [17] The Anthony-Cook decision of the Supreme Court of Canada was referred to by both counsel and the trial judge. In that case, the court adopted a public interest test to measure whether a joint submission on sentence should be rejected.

A joint submission is not considered on the basis of whether the trial judge considers the sentence to be “fit” or whether an appellate court would consider it to be “demonstrably unfit” or, for that matter, whether the sentence is reasonable as falling within an acceptable range. A more stringent test is to be applied because it best reflects the benefits that joint submissions bring to the criminal justice system and the need for a high degree of certainty in them.

The public interest test is distinct from the tests that appellate courts use in conventional sentencing hearings and helps to keep judges focused on what Justice Moldaver in the Supreme Court referred to as the “unique considerations” that apply when assessing the acceptability of joint recommendations. [Emphasis added] [ 14 ] The trial judge's conclusion that a jointly recommended sentence is inappropriate, and the imposition of one of his own, is not a stand-alone basis of appeal.

I must be satisfied that one or the other of the prerequisites referenced above (as per Friesen) has been made out in order to intervene. [ 15 ] In fact, the exercise simplifies itself further. Since neither party argued that the sentence imposed by the Sentencing Judge, considered in isolation, was unreasonable, the result of this appeal will be determined by consideration of the second basis of potential intervention set out in Friesen , which is encompassed in issues B and C below. [ 16 ] First, however, the fact that the Sentencing Judge was dealing with a true joint recommendation will be briefly emphasized.

Issues A. The recommendation in question was a true joint recommendation. B. Accordingly, did the Sentencing Judge commit an error in principle (i.e. did he commit an error of law, fail to consider a relevant factor, or erroneously consider an aggravating or mitigating factor)? C. If yes, did such an error have an impact on the sentence? Analysis A. The recommendation in question was a true joint recommendation. [ 17 ] The Sentencing Judge accepted that it was. For example, at the beginning of his reasons he references the following principles extracted from Anthony- Cook : … In R. v.

Anthony-Cook , supra, The Supreme Court of Canada stated: 1. Agreements of this nature are commonplace and vitally important to the well-being of our criminal justice system, as well as our justice system at large. Generally, such agreements are unexceptional and they are readily approved by trial judges without any difficulty. Occasionally, however, a joint submission may appear to be unduly lenient, or perhaps unduly harsh, and trial judges are not obliged to go along with them ( Criminal Code , R.S.C. 1985, c. C-46, s. 606(1.1) (b)(iii)): para 25. 2.

As a rule, counsel will be highly knowledgeable about the circumstances of the offender and the offence and the strengths and weaknesses of their respective positions: para 44.

3. Trial judges should approach the joint submission on an "as-is" basis: para 51. 4. The greater the benefits obtained by the Crown, and the more concessions made by the accused, the more likely it is that the trialjudge should accept the joint submission, even though it may appear to be unduly lenient: para 53. 5. The public interest test is the proper test. Trial judges should apply the public interest test when they are considering "jumping" or"undercutting" a joint submission.

Under the public interest test, a trial judge should not depart from a joint submission on sentenceunless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest: paras32 and 52. 6. Finally, trial judges who remain unsatisfied by counsel's submissions should provide clear and cogent reasons for departing fromthe joint submission: para 60. [Emphasis added] [18] The sentencing recommendation put forward by both parties was ad idem with respect to all aspects of the sentence. I thereforeagree with the parties and the Sentencing Judge.

This was a true joint recommendation. [19] Because of this, a failure on the part of the Sentencing Judge to properly apply the public interest test, as enunciated inAnthony-Cook, would constitute an error of principle, hence one of law. B.

Accordingly, did the Sentencing Judge committed an error in principle (i.e. did he commit an error of law, fail to consider a relevantfactor, or erroneously consider an aggravating or mitigating factor)? [20] The Sentencing Judge considered the principles of sentencing and the determination of a fit and proper sentence both as setforth in the relevant provisions of the Criminal Code, and as interpreted through the lens of a number of authorities. He said this: [30] In R. v. Field, [2013] N.S.J.

No. 330, Derrick J. (as she then was) provided a concise and helpful overview of the purpose andprinciples of sentencing: [2]….Sentencing is a "profoundly subjective process." (R. v. Shropshire, (SCC), [1995] S.C.J. No. 52, paragraph 46)Determining "a just and appropriate sentence is a delicate art" which requires the careful balancing of "the societal goals of sentencingagainst the moral blameworthiness of the offender and the circumstances of the offence ..." (R. v. M. (C.A.), (SCC), [1996] S.C.J. No. 28, paragraph 91) An appropriate sentence cannot be determined in isolation.

Regard must be had to all thecircumstances of the offence and the offender. (R. v. Nasogaluak, 2010 SCC 6 , [2010] S.C.J. No. 6, paragraph 44) It is a"profoundly contextual" process in which the Sentencing Judge has broad discretion. (R. v. L.M., 2008 SCC 31 , [2008] S.C.J.No. 31, paragraph 15) That discretion is structured of course, by how the various sentencing objectives are to be weighted for certainoffences. Denunciation, Deterrence & Rehabilitation [31] The Supreme Court of Canada in R. v. Bissonnette, 2022 SCC 23 reflected on the principles of denunciation, deterrence, andrehabilitation: 1.

Denunciation "requires that a sentence express society's condemnation of the offence that was committed. The sentence is themeans by which society communicates its moral values": para. 46. 2. The principle of denunciation "must be weighed carefully, as it could, on its own, be used to justify sentences of unlimitedseverity": para. 46. 3. Deterrence comes in two forms, general and specific. Certainty of punishment and criminal sanction "does produce a certaindeterrent effect, albeit one that is difficult to evaluate, on possible offenders.": para. 47. 4.

The objective of rehabilitation "presupposes that offenders are capable of gaining control over their lives and improving themselves,which ultimately leads to a better protection of society". Rehabilitation "is one of the fundamental moral values that distinguish Canadiansociety from the societies of many other nations in the world.": para. 48 Proportionality [32] The paramount principle of sentencing is proportionality. The following can be abstracted from R. v. Bissonnette, supra: 1. Proportionality is essential to maintaining public confidence in the sentencing process: para. 50. 2.

"The sentence must be severe enough to denounce the offence but must not exceed "what is just and appropriate, given the moralblameworthiness of the offender and the gravity of the offence."": para. 50. 3. "There is no mathematical formula for determining what constitutes a just and appropriate sentence": para. 49. 4.

The goal of sentencing is to carefully balance "the societal goals of sentencing against the moral blameworthiness of the offenderand the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community."The assessment of moral blameworthiness must be done through the perspective of the offender's life experiences and personal

characteristics: para. 49. 5. "The relative importance of each of the sentencing objectives varies with the nature of the crime and the characteristics of the offender.": para. 49. Proportionality Parity & Individualization [33] Proportionality interacts with the principles of parity and individualization. The Supreme Court of Canada in R. v. Parranto , supra spoke to how these principles work in tandem: 1. "Individualization is central to the proportionality assessment.

Whereas the gravity of a particular offence may be relatively constant, each offence is "committed in unique circumstances by an offender with a unique profile" (para. 58). This is why proportionality sometimes demands a sentence that has never been imposed in the past for a similar offence: para 12. 2. "The question is always whether the sentence reflects the gravity of the offence, the offender's degree of responsibility and the unique circumstances of each case": para. 12. 3. The mitigating and aggravating factors of each case must be considered: paras. 17 and 18. 4.

"Parity and proportionality are not at odds with each other." "Consistent application of proportionality will result in parity": para. 11. 5. Courts cannot arrive at a proportionate sentence based solely on first principles, but rather must "calibrate the demands of proportionality by reference to the sentences imposed in other cases": para. 11. 6. Proportionality is determined on "both an individual basis" and by comparison with sentences imposed for similar offences committed in similar circumstances: para. 12. 7.

A trial judge "must calibrate a sentence that is proportionate for this offence by this offender, while also being consistent with sentences for similar offences in similar circumstances": para. 234. 8. Parity "is a secondary sentencing principle, subordinate to proportionality ( Lacasse , at para. 54) and cannot "be given priority over the principle of deference to the trial judge's exercise of discretion"": para. 234. [ 21 ] He then proceeded to consider the mitigating and aggravating factors: Mitigating Factors [34] There are several mitigating factors in this case: 1.

The accused is a youthful first-time offender with no prior record. 2. The accused has entered a guilty plea. 3. The accused has expressed remorse for his actions. 4. The accused cooperated with the police investigation. He gave a chartered and cautioned statement whereby he admitted his guilt. 5. The accused has the family support of his mother and sister. This will likely assist his rehabilitation. 6. The accused’s comments within the presentence report suggest he has gained some degree of insight into his anger issues. Aggravating Factors [35] The aggravating factors in this case include: 1.

The assault on A.B. was one of Intimate Partner Violence. This is specifically listed as an aggravating factor in

section 718.2 (a)(ii) of the Criminal Code . 2. The accused was in a position of trust and C.D. was a child. These are also specifically listed as aggravating factors in sections 718.2 (a)(ii.1) and 718.2 (1)(iii) of the Criminal Code . 3. There were multiple acts of violence in the home. There was more than one victim from the same family unit. 4. This was a case of child abuse. The injuries to the child were more than trifling. They amounted to bodily harm. The injuries were specifically inflicted to the 7-month-old’s head, face, and neck area.

The accused was well aware that this infant was born 4 months premature when through rage he delivered targeted violence to the baby’s head, face, and neck area. 5. The accused has demonstrated a susceptibility to quick escalating violence with little to no restraint. 6. The accused made no effort to seek medical assistance for this helpless infant.

7. Although no victim impact statement was filed, based on the facts, the court does find that A.B. was very afraid of living with the accused. She wanted out of the relationship and did not know what to do or who to tell. This struggle was directly linked to her fear of the accused. At a minimum I am able to conclude that the abuse impacted A.B. emotionally and psychologically when it was occurring. Other Factors [36] I have considered other relevant factors which do not neatly fit into the categories of aggravating or mitigating: 1. Collateral consequences to the accused.

As a result of being charged with these offences his name became public. He was shunned in the community and was forced to go off work for a short period of time. There has been some measure of collateral specific deterrence. 2. Compliance with release conditions. The accused has not contacted either victim since being charged with these offences 17 months ago.

To some degree this supports a willingness on the accused’s part to move forward and is suggestive of a diminished risk to re- offend (at least as it relates to these two victims). [ 22 ] After reiterating that parity is secondary to proportionality, and that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, the Sentencing Judge went on to point out that "...the reality is that no two cases are ever exactly the same" ( decision para 37 ). Then he said this: [38] The Supreme Court of Canada in R. v.

Parranto, supra stated, “parity and proportionality are not at odds with each other” “and “consistent application of proportionality will result in parity": para. 11. This is ideal in theory. However, sentencing ranges for child abuse have traditionally been “all over the place” . This is something counsel acknowledged during their submissions. In fact, this reality was also raised in the first case which I will reference momentarily. To some degree this may reflect what the Supreme Court of Canada means when it states that the sentencing process is “profoundly contextual” and a “profoundly subjective process”.

It is in that context they state that appeal courts owe a great deal of deference to the Sentencing Judge. I will now turn to a review of several cases. [Emphasis added] [ 23 ] The Sentencing Judge then considered a number of cases involving somewhat similar circumstances. For example, he referenced R v. Bowden , [2015] NSJ No.113 (NSPC) which concerned a forty-year-old accused with a dated and unrelated prior record. Mr. Bowden had entered a guilty plea to a single count of assault causing bodily harm having slapped a six-week-old son across both sides of his face.

This had resulted in injuries which were considered serious and included permanent brain damage and visual impairment.

The Crown sought an 18-month sentence of incarceration, while the defence sought a conditional sentence or, alternatively, a jail sentence of between 3 to 6 months. [ 24 ] In concluding that a conditional sentence would be inappropriate, Derrick, J. (as she then was) reasoned that this was so because "...a conditional sentence in this case is not consistent with the purpose and principles of sentencing, specifically the principles to be foregrounded, which are denunciation and deterrence" (para 6). [ 25 ] While conceding that the injuries in Bowden were more serious than those in the present case, the Sentencing Judge adverted to the fact that the "absence of an aggravating factor does not mitigate the seriousness of an offence".

He went on to indicate that Mr. Pardy's "...extremely high level of moral blameworthiness exists independent of the resulting injuries" ( decision, para 43 ). [ 26 ] The Sentencing Judge placed particular emphasis on the conclusion in Bowden , where the court observed: [48] … Mr. Bowden assaulted his baby, striking X across the face in a back and forth motion with both hands. While I accept that he did so out of stress and frustration, it was an intentionally violent act against a tiny, helpless baby. Sentencing for such violence must emphasize denunciation and deterrence.

I am simply not satisfied that a conditional sentence in this case, even with strict punitive conditions, is consistent with these principles. A conditional sentence is not the appropriate sentence in this case. [ 27 ] With respect, I agree with Derrick, J.’s comments in Bowden. She was not, however, dealing with a joint recommendation in that case. [ 28 ] After citing the above, the judge proceeded to review some other case law, including cases to which both Crown and defence counsel had referred him.

Prior to doing so, he observed: " While I agree that conditional sentences have been available and imposed for child abuse in both Nova Scotia and through Canada, this does not by operation automatically dictate the imposition of one here" ( decision, para 48 ). [Emphasis added] [ 29 ] The Sentencing Judge went on to discuss, first, R v. Sharpe , [2010] AJ No. 1058 in which a conditional sentence of two years less one day was imposed. The 33-year-old accused (with no record) had entered a guilty plea after having tossed a fussing and crying infant into the air four times and catching him.

When the accused’s thumb struck the infant's chin, that, combined with the sudden motion of the child being tossed into the air, had resulted in injuries which included subdural hematomas and bilateral retinal hemorrhages, from which the child made a full recovery. [ 30 ] The Sentencing Judge observed, however, that in Sharpe : [50] The court properly held that in cases of child abuse denunciation and deterrence are paramount. However, the court in R. v. Sharpe , supra drew a distinction between different trust relationships without supporting authority, see R. v. Bowden , supra . There is no

authority to differentiate between an abuse of trust for personal gain and an abuse of trust by an accused who fails to perform animportant function such as being a parent to a child. The Justice in R. v. Sharpe, supra, found that it was less of an aggravating feature inthe latter situation than in the former. The adoption of such a distinction appears to have materially impacted the ultimate sentence in R.v. Sharpe, supra. Given this, I have concerns with respect to the precedential weight I can give this case. [31] Next up was R v.

DNK, [2004] BC J No. 3066, in which a conditional sentence of two years less one day was also imposed.The accused was 26 years old, and he too, had no prior record. He entered a guilty plea to aggravated assault on a three-month-old baby.The baby had sustained a broken femur and skull fractures, but made a full recovery. [32] The Sentencing Judge distinguished DNK also: [52] There are several distinguishing features in this case compared to the one before this court. After a forensic psychiatric assessment,the accused in R. v. D.N.K, supra was found to be “a low risk for both general and violent reoffending”.

This court does not have thebenefit of a forensic risk assessment and can not make such a definitive finding. D.N.K, unlike Mr. Pardy, had “no pattern of violence oraggression”. Finally, D.N.K’s “substance abuse was a primary factor in his behaviour”. D.N.K prior to sentencing took exceptional andextensive efforts to fully rehabilitated himself with respect to the primary contributing factor to his criminal conduct. Mr. Pardy has notcome to court having addressed his underlying issues. This is not aggravating but at the same time Mr.

Pardy does not get the benefit ofsuch mitigation which was reflected in D.N.K’s ultimate sentence. [53] In imposing a conditional sentence, the court stated, “the court should impose a conditional sentence in cases involving violence tochildren only in exceptional cases”. They found that D.N.K was an “exceptional case”. I am unable to find that Mr. Pardy’scircumstances are such that he is an ‘exceptional case”. Nor am I able to find that Mr.

Pardy had “no pattern of violence or aggression”.The high degree of violence involving multiple victims on separate dates suggests otherwise. [33] Another case considered by the Sentencing Judge was R v. Berg, [2017] SJ No 170, one in which a youthful accused received aconditional sentence of three months. The victimized infant had been crying while the accused was attempting to play a video game. Hetook the video game controller and hit her with it, causing severe bruising. With respect to Berg, the Sentencing Judge said this: [56] The court in R. v.

Berg, supra placed heavy emphasis on two material mitigating factors which are not present in this case. Theaccused’s criminal conduct was linked directly to his diagnosis of Asperger’s Syndrome. As well, Mr. Berg was being sentenced for asingle isolated incident “occurring out of frustration”. Mr. Pardy’s violence was not isolated to a single event or a single victim. As aresult, this court is unable to accept that his violence was simply “occurring out of frustration”. Nor was Mr. Pardy’s conduct linked to adiagnosable disorder such as Asperger’s Syndrome. Mr.

Pardy’s situation is not one where his moral blameworthiness is diminished bymental disorder. [34] Next was R v. Marks, (NL CA), [1994] NJ No 241, a decision of the Newfoundland and Labrador Court ofAppeal. In Marks, the court observed: [27] Physical child abuse frequently falls into two distinct types: (

i) The application of force with, if not the intention, the expectation of causing injury or, an indifference as to whether injuries willresult and, (ii) the application of force where a parent or other custodian of a child is immature and is unskilled in matters of child care, and, actingout of emotional upset, frustration or impatience, does not fully appreciate the serious injuries which might result. [28] In the first situation, there is a high degree of culpability and the court will in most cases impose a severe sentence.

In the secondsituation, while punishment is warranted, a sentence, where such is warranted, will not ordinarily be a severe one and will usually befollowed by a period of probation, a condition of which would be that the abuser receive training and counselling to the end that furtheracts of abuse will be avoided. [35] The Sentencing Judge expressed some concern with respect to the two distinct types of physical child abuse identified inMarks: [59] There is a danger in trying to box a particular offender or type of conduct into a narrow set of predefined categories. The AlbertaCourt of Appeal in R. v.

Nickle, 2012 ABCA 158, expressed a similar concern and rejected the adoption of the ridged categoricalapproach outlined in R. v. Marks, supra. Offending conduct occurs on a spectrum and so do the particular circumstances and level ofmoral blameworthiness. By putting the accused in one of the two Marks boxes counsel have bootstrapped their recommendation. Tosome degree what has been ignored is the context which was the whole of the family violence. Any fit and appropriate sentence musttake this into consideration. [60] Even if this court were to adopt the categorial approach in R. v.

Marks, supra, which I do not, these facts do not support theconvenient placing of Mr. Pardy into the second category. After being confronted by A.B. about what was happening the accusedproceeded to slap the infant in the head/face. The violence occurred directly in front of the child’s mother. This is remarkablyconcerning. Upon being confronted his reaction was not to back away from the situation. He chose to inflict violence on this childcoupled with telling her he never wanted a baby. ... [61] …As well, he inflicted abuse to both members of the same family unit.

To chalk this second event up to being “unskilled”,“immature”, and “frustrated”, is to ignore the first abusive event. I specifically reject counsel’s categorization of Mr. Pardy’s criminalconduct. Mr. Pardy’s anger and propensity for violence were on full display prior to assaulting his infant son. He choked and threated tokill A.B. only to later transfer his violent ways towards a second member of the same family unit. His culpability and moralblameworthiness are very high.

[ 36 ] With respect to R v. M JA , [2000] NBJ No 116 , which resulted in a sentence of two months imprisonment, the Sentencing Judge said this: [63] This case was tendered by defence counsel; however, the decision does not speak to the availability or appropriateness of a conditional sentence. Despite the availability of a conditional sentence a straight 2-month jail sentence was imposed. Here, both the Crown and defence have put forward a custodial sentence of 16 months. This court does not take issue with the proposed length of the sentence. That is not an issue.

As stated, the issue is whether imposing the 16-month custodial sentence as conditional sentence would be consistent with the principles and objectives of sentencing . In that regard, this case is of little assistance. [64] I accept that there have been custodial sentences imposed which are less than 16 months imposed depending on the unique circumstances of the individual case. However, this certainly isn’t one of those cases. Counsel have maintained that this case warrants a 16-month custodial period. [Emphasis added] [ 37 ] Finally, the Sentencing Judge considered R v.

J FC , [2006] NSJ No 37 , which resulted in a conditional discharge, in circumstances where the trial judge had described what had occurred as "... really not far off a simple assault under s. 266". In commenting upon this case, he noted: [66] There are material differences between R. v. J.F.C , supra and the matter before this court. The court in R. v. J.F.C , supra specifically held that the incident was isolated and was “not part of a pattern of behaviour”. As stated, Mr. Pardy is being sentenced for multiple acts of violence on different dates involving both his spouse and infant son.

As well, J.F.C was described by the child’s mother as being a “good provider and good father”. All sources stated that the offence was out of character for the accused who had never shown a propensity for anger or violence. The circumstances were unique in that the accused had been the sole source of financial support for his children. He was a tuck driver by trade and made frequent boarder crossings. It was established that a criminal record would essentially terminate his employment and result in immediate and considerable financial hardship on his family and children. [67] It is argued that R. v.

J.F.C , supra demonstrates that offences against children do not automatically result in a jail sentence. The principles and objectives of sentencing, including deterrence and denunciation, can be met without the imposition of a jail sentence. That is a fair point. However, I will comment that this case is now close to 20 years old. [68] While most of the sentencing principles have remained relatively constant during the past 20 years, I am comfortable in stating that there has been an evolution with respect to how courts examine intimate partner violence, family violence, and the abuse of children.

First, there have been parliamentary increases to sentencing maximums for certain violent crimes which are often committed against intimate partners and children. Second, since the trial court’s decision in R. v. J.F.C , supra parliament has enacted sections 718.01 and 718.04 of the Criminal Code .

Both of these sections have full application today: Objectives -- offences against children 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [Emphasis added.] Objectives -- offence against vulnerable person 718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances -- including because the person is Aboriginal and female -- the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [Emphasis added] [69] Third, the Supreme Court of Canada has provided guidance with respect to child abuse sentencing albeit in the context of sexual violence.

It was emphasized that priority shall be given to the principles of deterrence and denunciation. Although R. v. Friesen , supra delt with sexual violence I find certain pronouncements are equally applicable in cases involving the physical abuse of infant children. Adopting the direct language of the Supreme Court of Canada in R. v. Friesen , supra the principles naturally transition to the physical abuse of infant children. [ 38 ] From an analysis of the cases, the Sentencing Judge next turned to consider the "critical systemic benefits" which flowed from joint recommendations.

He elaborated: [75] … I have also considered the circumstances and rationale underpinning the joint recommendation. This includes whether there were any benefits to the Crown or concessions made by the accused. I have considered whether there was quid pro quo and provided counsel an opportunity to outline the same. Counsel were given a full opportunity to outline the considerations and concessions which went into fusing the joint recommendation. [ 39 ] The Sentencing Judge downplayed the significance of any quid pro quo received.

He noted that there had been no concerns expressed by the Crown with respect to the cooperation of the victim AB, who was also the mother of the child, and that she had witnessed the accused strike the infant. He also said there was no indication that she was reluctant testify at trial. ( Para 76, decision ) [ 40 ] Both Crown and defence take issue with these assertions. For convenience, I quote from the appellant's factum at para 18: 18. Such a blanket statement oversimplified the Crown’s position regarding Ms. Rideout.

At no point during submissions had the Crown indicated they had had any recent contact from Ms. [AB]. Furthermore, because Mr. Pardy had entered guilty pleas over a month before the charges involving Ms. [AB] were scheduled for trial, there was no evidence before Judge Russell to indicate Ms. [AB] had been subpoenaed or was even locatable to attempt to subpoena .

[Emphasis added] [ 41 ] Moreover, during the course of defence counsel’s submissions with respect to the joint recommendation (on July 5, 2023), the Sentencing Judge appeared to be under the impression that the mother “... was served with a subpoena, was present for trial, I believe... It seemed like the Crown was anticipating that she was cooperating” ( transcript, appeal book, p. 87, ll 2-4 ). [ 42 ] There is no record that any subpoenas whatever were sent out for the mother. Moreover, the matter did not proceed to a trial.

Instead, the accused's guilty plea in advance obviated the need for not only one, but two separate trials. [ 43 ] The Sentencing Judge moved on to reference "the singular evidentiary concern" with which he felt that the Crown had needed to concern itself. This, he felt, was whether the Crown could prove the injuries to the child amounted to bodily harm. He then went on to observe: 78. However, there were photos and a video documenting the extensive bruising to the infant.

There was no concern expressed with respect to the admissibility of the supporting evidence. [ 44 ] The appellant, however, points out in his brief, (and the Crown concurs) that: 25. …However, it should be noted, neither the video nor the photos referenced were ever properly obtained by Police or disclosed to either Crown or Defence. Though their existence was part of the res gestae in the recitation of the facts, the photos and videos were never part of the evidence presented at the sentencing.

No concerns as to admissibility were raised by counsel, as the evidence had never materialized to be scrutinized for concerns as to admissibility in the first place. 26. It is respectfully submitted, to place any weight on the lack of objection to non-existent evidence is an error in principle.

Judge Russell clearly placed weight on this factor and used that weight in rejecting the joint submission of counsel. [ 45 ] As I consider the above, I believe it to be a fair observation that, by reviewing the individual cases which he did, and weighing the results thereof against the recommended sentence, the judge appeared to be more concerned with distinguishing those authorities which had imposed sentences similar to that which had been recommended, from the circumstances of the case at hand. Certainly, he discussed the principles underpinning the application of the public interest test.

But he was required to apply these principles when considering the joint recommendation. I am not satisfied that he correctly applied them. [ 46 ] For example, it has earlier been noted that the Sentencing Judge, after agreeing that CSO’s are available or have been imposed for child abuse in Nova Scotia (and Canada), he said that “this does not by operation of law automatically dictate the imposition of one here” (para 48). [ 47 ] It has also been observed that the judge stated that he took no issue with the length of the custodial portion of the recommended sentence.

He then noted: …That is not the issue…the issue is whether imposing the 16-month custodial sentence as a conditional sentence would be consistent with the principles and objectives of sentencing. (Decision, para 63) [ 48 ] Reading his decision as a whole, I am satisfied that the judge based his rejection of the joint recommendation essentially upon whether he felt that “the recommended sentence fitted the crime”.

I say this notwithstanding that he made explicit reference to the public interest test in Anthony-Cook . [ 49 ] The proper application of the public interest test involves the following considerations articulated in Anthony-Cook . These principles culminate in para 34, which I will repeat below for ease of reference: In my view, these powerful statements capture the essence of the public interest test developed by the Martin Committee. They emphasize that a joint submission should not be rejected lightly, a conclusion with which I agree.

Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down . This is an undeniably high threshold — and for good reason… [Emphasis added] [ 50 ] Subsequent decisions have referred to the threshold for rejecting a joint recommendation as "high", "undeniably high", "stringent", and the like.

It is not sufficient for the judge to merely conclude that the punishment is inadequate. Without the benefit of guilty pleas and joint recommendations, our entire legal infrastructure would become a morass and likely collapse under its own weight. [ 51 ] It is abundantly clear that the jointly recommended sentence in this case differed from what the Sentencing Judge himself would have imposed had a joint recommendation not been reached.

Indeed, were we not dealing with a joint recommendation here, it would be very difficult to find any fault whatsoever with the Sentencing Judge’s very well articulated and reasoned decision. That does not change the fact that the Crown and Defence did put one forward. [ 52 ] This was a true joint recommendation. The Sentencing Judge himself acknowledged that "conditional sentences are routinely imposed", that they are not a "free pass on punishment", and that they carry "heavy deterrent and denunciatory elements ( decision para 23 )”.

He also observed that he was under no legislative or other type of restraint prohibiting the imposition of a conditional sentence for crimes of child abuse and/or intimate partner abuse ( decision, para 25 ), and that "sentencing ranges for child abuse have traditionally been "all over the place"." ( decision para 38 ) [ 53 ] The Sentencing Judge also referenced cases possessing features somewhat similar (albeit not identical) to the case at bar, in which conditional sentences were imposed. Instead of treating this as an indication that the present joint recommendation was therefore

not "unhinged", he strove to distinguish the case at bar from all of the exemplars to which he had been referred. [ 54 ] As I have earlier emphasized, that approach would have been fine if this was a simple sentencing, and not a joint recommendation. Absent the latter, the Sentencing Judge would have been simply explaining (in his reasons) why he was not persuaded by one or more of the authorities to which he had been referred. [ 55 ] But when dealing with a joint recommendation, another level is added to the analysis, one to which the Sentencing Judge referred but did not apply correctly, in my respectful view.

He was required to address whether the joint recommendation would bring the administration of justice into disrepute or otherwise be contrary to the public interest, which would only occur in the presence of a recommendation calling for the imposition of a sentence which would be seen by a reasonable person as a "break down in the proper functioning of the criminal justice system”, or constitute a recommendation "unhinged from reality" as the court in Anthony-Cook put it. [ 56 ] As Campbell, J. observed in Miller : [20] The Supreme Court has sent a clear message to those of us who are trial judges.

Think twice and maybe even three times before jumping a joint recommendation. It is not enough that the sentence is outside of the normal range of sentences in the circumstances. The proposed sentence has to be so unhinged from the circumstances of the offence and the offender that departing from it in an individual case is worth the potential broader erosion of confidence in plea bargaining arrangements . [Emphasis added] [ 57 ] The same Justice pointed out in Susin v.

R, 2023 NSSC 262 : [25] When an accused person enters a guilty plea based on an agreed upon sentence to be presented to the court as a true Anthony- Cook joint recommendation, the person is entitled to some level of comfort, if not certainty, that the sentence will be imposed barring something entirely unforeseen . That is not achieved by the judge assessing whether the discharge is or is not in the public interest and would have been granted in the absence of a joint recommendation. It is only achieved when the judge reviews counsels’ assessment that the discharge is not contrary to the public interest.

And then the test is whether that assessment is so unreasonable that it would cause reasonable people to lose faith in the justice system. [Emphasis added] [ 58 ] The Sentencing Judge did not properly apply the public interest test. He thereby committed legal error. C. If yes, did such an error have an impact on the sentence? [ 59 ] Obviously, the legal error was material, and it had an important impact on sentence. But for the error, the accused would have received the jointly recommended sentence, rather than the one imposed by the trial judge.

The sentence which he imposed included a period of twelve months incarceration. Conclusion [ 60 ] The appeal is allowed. The sentence imposed by the Sentencing Judge is set aside, and the terms of the joint recommendation shall be substituted therefor. I trust the parties will be able to agree on the portion of the sentence which has been served to date, but I will hear from them within 10 days if not. Gabriel, J.