R. v. Johnston, 2014 NSCA 78

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Johnston , 2014 NSCA 78 Date: 20140731 Docket: CAC 429755 Registry: Halifax Between: David William Johnston Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Peter M. S. Bryson Motions Heard: July 31, 2014, in Halifax, Nova Scotia in Chambers Written Decision: Held: August 5, 2014 Motions for interim release and leave to appeal are denied. Counsel: J.

Patrick Atherton and David Dalrymple, for the appellant James Gumpert, Q.C., for the respondent Decision: [ 1 ] David William Johnston seeks interim release and leave to appeal his nine-month sentence for assault causing bodily harm and attempting to administer a noxious substance (respectively ss. 267 (

b) and 245 (

b) of the Criminal Code ). At Mr. Johnston’s hearing on July 31 st , I denied leave and interim release, with reasons to follow. These are they. [ 2 ] Mr. Johnston pleaded guilty. As a result of his guilty plea, the Crown withdrew charges of dangerous driving, assault with a weapon and leaving the scene of an accident. Sentencing proceeded by way of agreed statement of facts before the Honourable Judge Michelle Christenson in Truro. The sentencing judge reserved her decision and delivered sentence on Friday, July 18, 2014. [ 3 ] Mr.

Johnston was involved in a relationship with the victim’s wife, prior to their marriage. He was obviously disappointed that his attentions were not fully reciprocated. Mr. Johnston stalked the victim, Jason Nichols. He placed some items on top of Mr. Nichols’ car while it was parked in a grocery store parking lot, including a drink of Pepsi that had been laced with old prescription medication that Mr. Johnston had around the house. Mr. Johnston waited until Mr. Nichols came out to his car and then ran into him and drove off. Mr. Nichols was hurled into the air.

Fortunately, examination at hospital confirmed that he only suffered a head laceration and soft tissue injuries. It could have been much worse. [ 4 ] Although Mr. Johnston prevaricates about intentionally striking Mr. Nichols, the fact is that he knew Mr. Nichols had been struck and left anyway. He did not report the incident to anyone and, in fact, avoided taking any responsibility until confronted by police some days later. [ 5 ] At the hearing, Mr. Johnston was cross-examined as was his proposed surety, his mother, Carol Johnston.

The Crown also led evidence from the victim’s mother, Janet Crowell. [ 6 ] While not much turns on it, I agree with the Crown that Mr. Johnston was evasive in some of his answers to the Crown’s questions. He refused to acknowledge the premeditation of lacing the Pepsi with prescription drugs, and placing them atop of Mr. Nichol’s car. He professed ambivalence about his actions saying, for example: “I can’t say I wanted him to drink it …” [the Pepsi]. He claimed his behaviour was not planned or deliberate, but “impulsive”.

He clearly was distancing himself from his conduct, which was also observed by the sentencing judge: “The [presentence] report illustrates some level of remorse, although he does distance himself somewhat from the offence by blaming - - by placing the blame on his medication.”

Leave to Appeal: [7] An appellant may only challenge sentence with leave of the Court of Appeal or a judge thereof, (Criminal Code, s. 675(1)(b)). The Code requires that in a sentence appeal like this one, interim judicial release may only be granted if a judge of the Court of Appealhas granted leave to appeal: 679.

(1) A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determinationof his appeal if,… (

b) in the case of an appeal to the court of appeal against sentence only, the appellant has been granted leave to appeal; [8] Civil Procedure Rule 91.24(1) addresses leave to appeal and interim release: 91.24

(1) An appellant who appeals against sentence only, is in custody, and wishes to be released pending appeal must make a motionto a judge of the Court of Appeal for leave to appeal, which motion may be heard together with a motion for an order for release undersection 679 of the Code and be determined before or at the same time as the motion for release is determined. [9] In R. v. Amin, 2010 MBCA 15, Justice Freedman commented on leave as follows: 4 The Code does not spell out the circumstances that must exist before leave can be granted (as it does, for example, regardingjudicial interim release).

Those circumstances have, however, been discussed in a number of appellate decisions. See, for example, R. v.Perrier, 2009 NLCA 61, where at paras. 23-28, Green C.J.N.L. refers to a number of such decisions, such as R. v. Jesso (H.), 2008NLCA 30, 276 Nfld. & P.E.I.R. 147. In that case, Barry J.A. denied leave to appeal against sentence because the submissions on thelength of sentence had “no arguable basis or sufficient merit to support the conclusion that there is a reasonable prospect for successregarding length of sentence if leave to appeal is granted” (at para. 13). 5 Chief Justice Green also noted Bailey v.

R., 2008 NLCA 5, where “sufficient merit” was equated with “arguable merit” (at para.5) as the test for granting leave to appeal. He referred to cases from other jurisdictions (at para. 25): .... ... R. v. Laliberte, 2000 SKCA 27, (per Jackson J.A. at para. 119: “an arguable case”; or “sufficient merit”); R. v. Hawthorne(1992), (BC CA), 21 B.C.A.C. 173 per Gibbs J.A. at para. 6: (“not frivolous and has a reasonable chance of success”;or not “doomed to fail”); R. v.

Shacklock [2000 NSCA 68], (2000), 2000 NSCA 68 , 185 N.S.R. (2d) 119 (CA) (per RoscoeJ.A. at para 4: “not frivolous and ... raise arguable issues”; R. v. Smith, 2005 NSCA 45 (per Fichaud J.A. at para. 10: “raise arguableissues”); and R. v. Mahamud, 2001 BCCA 558 (per Esson J.A. at para. 7: “lacks any substantial merit”); R. v.

Bodnarchuk (2007),2007 BCCA 450 , 246 B.C.A.C. 91 (per Levine J.A. at para. 5: “not frivolous and has a reasonable chance of success”). 6 He concluded that the words, an “arguable” appeal and an appeal with “sufficient merit,” were used as alternative descriptors ofthe test to be applied. 7 In R. v. Green (J.R.), 2005 PESCAD 21, 249 Nfld. & P.E.I.R. 150, Webber J.A. said (at para. 17): .... There must be some foundation laid to strongly suggest an error in law by the trial judge in passing sentence.

The words “clearlyexcessive or inadequate,” “error in principle,” “failure to consider a relevant factor,” "overemphasis of appropriate factors,""demonstrably unfit," "marked departure" from other sentences signal what must be shown for there to be an arguable appeal. .... 8 See also R. v. Langlois (D.J.), 2008 MBCA 72, 228 Man.R. (2d) 256 at para. 3, and R. v.

Laliberte, 2000 SKCA 27, 143 C.C.C.(3d) 503 (above, at para. 5), where Jackson J.A. said (at para. 119): In my respectful opinion, a Court of Appeal has the authority to grant leave not only when there is an arguable case for intervention butalso to settle an issue of significance either in practice or law. The onus on counsel seeking leave is to demonstrate a case of sufficientmerit and importance to warrant intervention or review. .... 9 For the applicant to be granted leave he must demonstrate that his appeal presents an arguable case.

In my opinion, this means acase with some merit, and some realistic chance of success. [10] At least in Nova Scotia, the test for leave requires that the grounds of appeal raise “arguable issues” or are “not frivolous”; seefor example: R. v. Smith, 2005 NSCA 45 at para. 10; R. v. MacIntyre, 2003 NSCA 68 at para. 6; R. v. J.E.S., 2009 NSCA 91 at para. 6;R. v. Bennett, 2006 NSCA 86 at para. 23. [11] The potential merits of an appeal are also taken into account under s. 679(4)(

a) of the Code. Accordingly, whether the appealhas merit in the sense of raising an arguable issue, is addressed later in this decision. [12] The Crown submits that this appeal lacks merit and that leave and interim release should be denied. I agree. For reasonsdeveloped below, the appellant has not shown that his appeal has merit.

Interim Judicial Release [13] Section 679(4) of the Criminal Code sets out the criteria for interim judicial release pending appeal: 679(4) In the case of an appeal referred to in paragraph (1)(b), the judge of the court of appeal may order that the appellant be releasedpending the determination of his appeal or until otherwise ordered by a judge of the court of appeal if the appellant establishes that (

a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody;

(

b) he will surrender himself into custody in accordance with the terms of the order; and (

c) his detention is not necessary in the public interest. [14] The onus of establishing the criteria in s. 679(4) is upon Mr. Johnston. In R. v. Barry, 2004 NSCA 126, the Court held: [8] Mr. Barry has the onus to establish each of the three conditions stated by s. 679(3). The conviction has substituted his initialpresumption of innocence with a status quo of guilt.

Unlike a pre-trial bail applicant, a convicted appellant “seeks to reverse the statusquo by obtaining a reprieve from a court order for his detention following conviction” and, therefore, has the burden to prove theconditions for release pending determination of the appeal: R. v. Branco (1993), (BC CA), 87 C.C.C. (3d) 71(B.C.C.A.), at p. 75 per Finch, J.A.; R. v. Butler, 1997 N.S.J. 391 at paras. 4-5; R. v. Ryan 2004 NSCA 105 at paras. 2-3. [15] The fundamental issue is not one of guilt or innocence: that is established. The question is whether the sentence wasinappropriate or nine months too lengthy.

The issue of “arguable issue” or “merit” must be examined in light of the grounds of appeal. They are: 1. The sentence passed is manifestly excessive; 2. The judge erred in overemphasizing the principles of denunciation and deterrence; 3. The judge failed to consider the principle of restraint in s. 718.2(

d) of the Criminal Code. [16] It is difficult to disturb sentencing decisions on appeal because substantial deference is accorded them by courts of appeal. Asthe Supreme Court observed in R. v. Nasogaluak, 2010 SCC 6: [46] Appellate courts grant sentencing judges considerable deference when reviewing the fitness of a sentence. In M. (C.A.), Lamer C.J.cautioned that a sentence could only be interfered with if it was “demonstrably unfit” or if it reflected an error in principle, the failure toconsider a relevant factor, or the over-emphasis of a relevant factor (para. 90; see also R. v.

L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, atparas. 14-15; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 123-26; R. v. McDonnell, (SCC), [1997] 1 S.C.R.948, at paras. 14-17; R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227). As Laskin J.A. explained in R. v. McKnight (1999), (ON CA), 135 C.C.C. (3d) 41 (Ont.

C.A.), at para. 35, however, this does not mean that appellate courts can interferewith a sentence simply because they would have weighed the relevant factors differently: 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 orby not giving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate courtinterfere with the sentence on the ground the trial judge erred in principle. [Emphasis added] [17] In R. v. E.M.W., 2011 NSCA 87, Justice Fichaud helpfully summarized the principles governing sentence appeals: [6] In R. v.

Shropshire, (SCC), [1995] 4 S.C.R. 227, paras 46-50, Justice Iacobucci for the Court stated or adopted theviews that: (

a) An appellate court should vary a sentence only when “the court of appeal is convinced it is not fit” or “clearly unreasonable”, orthe sentencing judge “applied wrong principles or [if] the sentence is clearly or manifestly excessive”. (b) “If a sentence imposed is not clearly excessive or inadequate it is a fit sentence assuming the trial judge applied the correctprinciples and considered all relevant facts”. (c) “[S]entencing is not an exact science”, but rather “is the exercise of judgment taking into consideration relevant legal principles,the circumstances of the offence and the offender”. (d) “The most that can be expected of a sentencing judge is to arrive at a sentence that is within an acceptable range”. (e) “Unreasonableness in the sentencing process involves the sentencing order falling outside the ‘acceptable range’ of orders”.

Merits of Appeal and Hardship [18] Mr. Johnston expresses concern that the normal delays of appeal may render his appeal moot. He may have served his sentencebefore being heard. Relying on Bennett, supra, Mr. Johnston submits: The court found that the possibility of serving more time in prison than justice requires is sufficient to satisfy this requirement. At para.28, the court stated: [28] …If Mr. Bennett were successful in this appeal, his success will be rendered illusory since by the time the sentence is varied onappeal as requested, he will have served more time in prison than justice requires.

Thus, his continued incarceration will have causedhim unnecessary hardship. [19] Certainly, this argument correctly addresses hardship but with respect, it glosses over the question of the appeal’s merit. Section

679(4)(

a) of the Code links “merit” and “hardship” – the language is “the appeal has sufficient merit that, in the circumstances, it wouldcause unnecessary hardship if he were detained in custody;” [Emphasis added] [20] In Bennett, there were extensive potential grounds of appeal which supported the appellant’s argument on the merits. As JusticeSaunders said: [14] These assertions are amplified in Mr. Arnold’s thorough written memorandum.

First, he argues that the learned sentencing judgeerroneously classified the appellant as “a wholesaler” when - given the quantity of marijuana and hashish seized - she ought to haveclassified him as a mere “petty retailer.” The appellant alleges that the judge misconstrued and misapplied the leading jurisprudence insuch matters.

He says the judge’s decision as to the appropriate length and type of sentence was clearly influenced by her classificationof the appellant as a wholesaler, and as a result of that flawed analysis, she erred in law and imposed a sentence that was demonstrablyunfit. [15] Further, the appellant claims the trial judge erred in finding that he was not a good candidate for a conditional sentence becausethe judge was not satisfied that the appellant could safely serve his sentence in the community. Mr.

Bennett submits that in making thisdetermination the judge seriously erred in her analysis and in ultimately rejecting a conditional sentence in his case. Specific examplesof mistakes allegedly made include the assertion that the judge made palpable and overriding errors in certain factual findings; failed toconsider or misapplied the legal principles relating to conditional sentences from R. v. Proulx, 2000 SCC 5 , [2000] S.C.J. No.6, and other leading authorities; overemphasized certain “aggravating” features while ignoring other important factors including the 18month conditional sentence that Mr.

Bennett’s co-accused had received, thus failing to consider the doctrine of parity; and failing toproperly account for the appellant’s guilty pleas in mitigation. [21] It is important to emphasize the connection between “sufficient merit” and “unnecessary hardship” in s. 679(4)(a). Some casesgive the impression that simply pointing out the mootness of appeal, owing to delay, creates unnecessary hardship which satisfies thissection. But there is no unnecessary hardship in serving an appropriate sentence.

Only if the appellant raises arguable issues canincarceration constitute an unnecessary hardship in such circumstances. Parroting the grounds of appeal alone would rarely meet thetest, absent some detail. [22] Mr. Johnston advances no such detailed arguments in this case. He simply repeats the assertions in his notice of appeal thatnine months is excessive and that the trial judge improperly emphasized denunciation and deterrence. Nothing in the record suggeststhat she did so.

To the contrary, the sentencing judge quoted extensively from the relevant sections of the Criminal Code, together withleading jurisprudence and then married those principles to the facts before her. To repeat the comments of Justice Webber in R. v.Green, supra, there is no foundation laid to strongly suggest an error in law by the trial judge in passing sentence. Simply saying that asentence is excessive or that some sentencing principles were overemphasized, does not establish an arguable case on appeal. Manifestly Excessive [23] Mr.

Johnston cited no case to this Court that suggested nine months for assault causing bodily harm and attempting toadminister a noxious substance was manifestly wrong or excessive. Nor did he point to any passage in the sentencing judge’s decisionthat would suggest inappropriate considerations leading to the sentence. [24] In his Notice of Appeal, Mr. Johnston proposes a fine of $1.00 and probation. In oral submissions, his counsel argued thatsimilar cases of aggravated assault might attract a sentence of “3 to 6 months”. In doing so, counsel minimized Mr.

Nichols’ physicalinjuries and ignored the traumatic psychological effect of Mr. Johnston’s attack on the victim – an effect that has prompted him to leavethe province out of fear of Mr. Johnston. [25] The suggestion of a fine for a violent crime like this, in all the circumstances, is patently unreasonable. Although no authoritieswere cited by counsel, an incarceration difference of between six and nine months has the appearance of tinkering with the sentencing judge’s discretion. [26] Nothing in the record, the judge’s decision or Mr.

Johnston’s submissions, establishes an arguable issue that nine monthsincarceration was excessive in all the circumstances of these offences and this offender. Denunciation and Deterrence [27] It is well established that violent offenders should usually be admonished with a term of incarceration. In R. v. Chisholm, 1998NSCA 155 , [1998] N.S.J. No. 274 (C.A.), Justice Bateman observed that deterrence should be emphasized in crimes ofviolence: 16 In R. v.

Coleman (1992), (NS CA), 110 N.S.R. (2d) 65 (N.S.S.C.A.D.), Hallett, J.A. reaffirmed the acceptedprinciple that crimes of violence require an emphasis on general and specific deterrence most commonly reflected by a significant periodof incarceration in a provincial institution. [28] The sentencing judge noted: The crime that you committed is a violent crime. You located him, you identified him, you followed him into the parking lot, you thenstruck him from behind in a vehicle that accelerated towards Mr. Nichols. It is extremely fortunate that his injuries were not moresevere.

Your actions were deliberate, as acknowledged in your agreed statement of facts in paragraph 11. Your lawyer has argued thatyou can accept what you do, meaning your actions, without fully understanding why you do them, and I accept that. You have had a public shaming. However, your actions were serious and there must be serious consequences for them. Clearly, the caselaw speaks of the need to address specifically the principles of denunciation and deterrence. The Crown has suggested a sentence range

of 12 to 15 months actually (sic) custody and Defence has suggested probation. The case law submitted can be distinguished in themanner outlined by the Defence. The cases proffered involve somewhat different charges, different offences and different aggravatingand mitigating factors. Having said that, the offence is serious and Mr. Nichols is fortunate that he is not more severely injured. But by your actions you haveharmed Mr. Nichols, his wife, the child, your family, the entire community to which you belong.

A sentence must be imposed that sendsa message not only to you but to others that crimes of violence, serious violence, will have serious consequences before this Court. [29] Denunciation and deterrence are proper considerations when sentencing for a violent offence. The judge made no error intaking them into account, nor did she unduly emphasize them. Principle of Restraint [30] It is incorrect to accuse the judge of failing to consider the principle of restraint, as Mr. Johnston does in his third ground ofappeal. The judge quoted ss. 718, 718.1 and 718.2 from the Code.

She then cited the Ontario Court of Appeal decision of R. v. Hamilton(2004), (ON CA), 186 C.C.C. (3d) 129, noting, amongst other things, that: “…The Criminal Code views imprisonment as a sentence of option of last resort. An offender should not be deprived of liberty if lessrestrictive sanctions may be appropriate. In the circumstances, all available sanctions, other than imprisonment, that are reasonable inthe circumstances should be considered.” [31] She went on to refer to s. 718.2 including s-s. (

e) which counsels against imprisonment when other sanctions are reasonable. [32] The sentencing judge found: It is clear from the facts presented that the actions of Mr. Johnston were planned and deliberate. That is an aggravating feature. Amitigating feature, however, is that he cooperated fully with the RCMP and provided a cautioned statement admitting his involvement. He has also pled guilty and accepted responsibility, saving the victim and the victim’s family from having to testify before this court. [33] The sentencing judge noted that Mr.

Johnston had no prior record and remarked on other mitigating factors: He is 40 years of age, he is appearing before this Court without a prior criminal record. He had the benefit of a positive upbringing. Heis supported by his family. He has a strong connection to the workforce, he’s been employed in the past as a part-time teacher and ispresently working as a musician and a magician. It is clear from the pre-sentence report that there have been some mental health issues. To his credit, he’s sought out the services of apsychiatrist who he has been seeing on a fairly regular basis.

He has had some suicide thoughts in the past. There’s no history of drug oralcohol abuse. [34] In her 20 page reserved decision, the sentencing judge reviewed the evidence, appropriate jurisprudence, and the principles ofsentencing, before imposing a nine-month sentence and related orders. Nothing suggests that a successful attack can be made on herfindings. Conclusion: [35] In view of my determination with respect to “arguable issues”, and leave, it is unnecessary to address the last two criteria forinterim release. [36] The appeal fails to raise arguable issues. Leave to appeal and interim release are denied.

Bryson, J.A.