R. v. Hynes, 2022 NSCA 51

Nova Scotia Court of Appeal Citation: R. v. Hynes , 2022 NSCA 51 Date: 20220708 Docket: CAC 506125 Registry: Halifax Between: Her Majesty the Queen Appellant v. Shawn Wade Hynes Respondent Judge: By the Court (Beveridge, Farrar, Bryson JJ.A.) Appeal Heard: May 26, 2022, in Halifax, Nova Scotia Subject: Criminal law: imposition of a conditional sentence order

Summary: A young Black apprentice suffered a significant injury when he was hit in the back by a nail. The trial judge found the respondent had intentionally pointed a nail gun at the victim but refused to find the respondent had discharged the nail gun intentionally. The act constituted both criminal negligence causing bodily harm and an assault with a weapon by virtue of having pointed it at the victim. The Crown adduced no evidence at trial or at the sentence hearing that the offences were in any way motivated by racism.

It accepted it could not establish bias or prejudice based on race, or any similar factor, as a statutory aggravating factor. The Crown nevertheless suggested the respondent was in a position of trust within the meaning of s. 718.2(a)(iii) of the Criminal Code . The Crown sought 12-15 months’ incarceration, plus probation. The respondent supported two dependent children who lived with him, had no prior record, a highly positive Pre-Sentence Report bolstered by many character letters. He sought a purely probationary sentence.

The trial judge rejected a purely probationary sentence due to the need to emphasize denunciation and deterrence for violence motivated by discriminatory beliefs and the victim was vulnerable. The judge struck down the statutory provisions that would have otherwise made a conditional sentence unavailable as unconstitutional. He imposed an 18-month conditional sentence with house arrest for 12 months with the mandatory statutory conditions and numerous optional ones, including the requirement to make restitution to the victim and perform 120 hours of community service.

The Crown does not challenge the availability of a conditional sentence order but seeks leave to appeal sentence on the basis the trial judge erred in principle when he determined a conditional sentence order would be appropriate, or such a sentence amounts to a manifestly unfit sentence. Issues:

(1) Did the trial judge err in principle?

(2) Is the sentence manifestly unfit? Result: Leave to appeal is granted but the appeal is dismissed. The trial judge committed errors in principle. The errors benefitted the Crown. The respondent was not in a position of trust vis-à-vis the victim within the meaning of s. 718.2(a)(iii) of the Code ; the Crown never alleged as aggravating factors that the offence was motivated by bias nor that the apprentice was a vulnerable victim.

The trial judge did speculate about the impact on the respondent from being exposed to extremist beliefs if incarcerated, but this comment played no role in the judge’s decision to impose a conditional sentence order. The trial judge made no reversible error in principle in his conditional sentence analysis, nor is the sentence manifestly unfit. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 41 pages.

Nova Scotia Court of Appeal Citation: R. v. Hynes , 2022 NSCA 51 Date: 20220708 Docket: CAC 506125 Registry: Halifax Between: Her Majesty the Queen Appellant v. Shawn Wade Hynes Respondent Judges: Beveridge, Farrar and Bryson JJ.A.

Appeal Heard: May 26, 2022, in Halifax, Nova Scotia Held: Leave granted and the appeal dismissed, per reasons by the Court Counsel: Mark Scott, Q.C., for the appellant Zeb Brown, for the respondent Reasons for judgment: [ 1 ] The Crown seeks leave to appeal, and if granted, appeals from a trial judge’s imposition of an 18-month conditional sentence order imposed on the respondent for criminal negligence and assault with a weapon. [ 2 ] The Crown says the trial judge erred in principle when he determined a conditional sentence order would be appropriate, or it amounts to a manifestly unfit sentence. [ 3 ] Although we grant leave to appeal, we dismiss the appeal.

OVERVIEW [ 4 ] The parties have acknowledged these proceedings have attracted media attention. Why wouldn’t they? The incident appears to be seen as a situation of a young Black man intentionally shot in the back with a nail gun by a racially-biased white co-worker. [ 5 ] The problem is that portrayal is not accurate. The evidence at trial demonstrated the victim enjoyed a positive relationship with his co-workers with absolutely no racial overtones.

The Crown did not adduce a scintilla of evidence of racial bullying or racism, nor did it ask any questions in cross-examination of the respondent at trial to in any way suggest biased behaviour, let alone anti-Black racism. [ 6 ] There was no doubt the respondent had a nail gun, it discharged, and the victim suffered serious injuries as a result. [ 7 ] The respondent testified the nail gun discharged as he was attaching a piece of 2x6 to the top of a wall, the nail deflected from its intended path, ricocheted, and struck the victim in the back.

Another independent witness confirmed this version of events. [ 8 ] The trial judge rejected the respondent’s evidence. However, the trial judge refused to find the respondent had intentionally discharged the nail gun. Instead, he concluded the respondent had pointed the nail gun at the victim, it discharged, and this act amounted to criminal negligence as well as an assault with a weapon. [ 9 ] At the sentencing hearing, the Crown argued for a period of incarceration of between 12 and 15 months followed by a 15-18 month probation order.

The respondent initially acknowledged that Parliament’s 2012 amendments to the Criminal Code precluded a conditional sentence order. The respondent requested a community-based disposition in the form of a suspended sentence and probation. [ 10 ] The sentence proceedings were adjourned from time to time, mostly due to the exigencies of the COVID-19 pandemic. The legal landscape shifted. By a majority judgment, the Ontario Court of Appeal in R. v. Sharma , 2020 ONCA 478 struck down the

provisions of ss. 742.1(

c) and (e)(ii) of the Criminal Code as violating ss. 7 and 15 of the Canadian Charter of Rights and Freedoms andwere not saved as being a reasonable limit pursuant to s. 1 of the Charter[1]. [11] This led to the respondent’s application for the trial judge to declare ss. 742.1(e)(

i) and (iii) unconstitutional as being overbroadand hence contrary to s. 7 of the Charter. [12] The trial judge, the Honourable Del Atwood, delivered oral reasons on April 23, 2021. They are not reported. His reasonsaddressed both the constitutional challenge and sentence. The trial judge found the challenged provisions of the Criminal Codeunconstitutional and a conditional sentence of imprisonment would be appropriate. The trial judge said this: However, I do find the constitutional-grounds application in this case not moot. I find the challenged provisions of the Codeunconstitutional.

Further, I find that conditional sentences of imprisonment would be appropriate punishments for Mr. Hynes. Accordingly the sentence of the Court will be to impose concurrent terms of imprisonment of 18 months for each count served in thecommunity as a conditional sentence order followed by a term of probation of 12 months. There will be ancillary orders for DNAcollection and weapons prohibition as are mandatory. [13] The Crown has not appealed the trial judge’s finding ss. 742.1(e)(

i) and (iii) are unconstitutional and not saved by s. 1. Further,the Crown stipulates that even if this Court were to agree the trial judge erred in principle or imposed a manifestly inadequate sentencethat we not order the respondent to be incarcerated in light of the time he has already served under the conditional sentence order. [14] The respondent has not appealed from conviction nor sought leave to cross-appeal sentence. [15] We will address the standard of review this Court must apply, the principles that guide conditional sentence orders, and theimposition of sentence in general.

STANDARD OF REVIEW [16] Appeal courts are required to defer to lawful sentences imposed by trial judges unless the sentence is demonstrably unfit orthey made an error in principle that materially impacted the type or length of the sentence imposed (R. v. Lacasse, 2015 SCC 64, at para.11; R. v. Parranto, 2021 SCC 46, at para. 30). [17] Derrick J.A., writing recently for the Court in R. v. Cromwell, 2021 NSCA 36, summarized the appropriate standard of review: [53] Sentencing decisions are accorded a high degree of deference in appellate review.

Appellate intervention is warranted if (1) thesentencing judge has committed an error in principle that impacted the sentence or, (2) the sentence is manifestly unfit. Errors inprinciple include “an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigatingfactor” (R. v. Friesen, 2020 SCC 9, at para. 26; R. v. Espinosa Ribadeneira, 2019 NSCA 7, at para. 34). See also: R. v.

Laing, 2022 NSCA 23 [18] This standard of review and limited role for appellate intervention applies equally to a trial judge’s determination whether toorder imprisonment be served by way of a conditional sentence order (see: R. v. Wheatley, 1997 NSCA 94, at para. 24; R. v. Parker,1997 NSCA 93, at para. 21). [19] Lamer C.J., for the unanimous Court, in the seminal case on the conditional sentence regime of R. v.

Proulx, 2000 SCC 5,acknowledged the discretionary essence of the question facing trial judges whether a conditional sentence should be imposed: [116] Sentencing judges will frequently be confronted with situations in which some objectives militate in favour of a conditionalsentence, whereas others favour incarceration. In those cases, the trial judge will be called upon to weigh the various objectives infashioning a fit sentence. As La Forest J. stated in R. v.

Lyons, (SCC), [1987] 2 S.C.R. 309, at p. 329, “[i]n a rationalsystem of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the natureof the crime and the circumstances of the offender”. There is no easy test or formula that the judge can apply in weighing these factors.Much will depend on the good judgment and wisdom of sentencing judges, whom Parliament vested with considerable discretion inmaking these determinations pursuant to s. 718.3 [20] The Court unanimously endorsed a deferential standard of review: [124] Several provisions of

Part XXIII confirm that Parliament intended to confer a wide discretion upon the sentencing judge. As ageneral rule, ss. 718.3(1) and 718.3(2) provide that the degree and kind of punishment to be imposed is left to the discretion of thesentencing judge. Moreover, the opening words of s. 718 specify that the sentencing judge must seek to achieve the fundamental purposeof sentencing “by imposing just sanctions that have one or more of the following objectives” (emphasis added).

In the context of theconditional sentence, s. 742.1 provides that the judge “may” impose a conditional sentence and enjoys a wide discretion in the drafting ofthe appropriate conditions, pursuant to s. 742.3(2). [125] Although an appellate court might entertain a different opinion as to what objectives should be pursued and the best way to do so,that difference will generally not constitute an error of law justifying interference. Further, minor errors in the sequence of application ofs. 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. [Emphasis in original] THE CONDITIONAL SENTENCE REGIME [21] Parliament codified the principles of sentencing in 1996 (S.C. 1995, c. 22). The provisions introduced a new option: a

conditional sentence order (CSO). As others have pointed out, the term “conditional sentence” is a bit of a misnomer ( R. v. Arsiuta , [1997] M.J. No. 89 (C.A.) ). [ 22 ] The most accurate way to view a CSO is that it is a sentence of imprisonment, but if the offender complies with the conditions set out in the order, they may serve it in a place other than a penal institution. [ 23 ] A CSO is only available if the statutory requirements are met.

Originally, s. 742.1 of the Criminal Code prescribed three: the offence is not one punishable by a minimum term of imprisonment; the sentence of imprisonment is less than two years; and, serving the sentence in the community would not endanger the community’s safety. [ 24 ] In 1997, Parliament mandated a court must also be satisfied a CSO would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 (S.C. 1997, c. 18, s. 107.1). [ 25 ] Statutory disqualifications were added in 2007 (S.C. 2007, c. 12) and 2012 (S.C. 2012, c. 1).

None of these are relevant here in light of the trial judge’s declaration of invalidity of ss. 742.1(e)(

i) and (iii). [ 26 ] If a judge exercises their discretion and imposes a CSO, there is no parole. There are mandatory conditions as well as the power to prescribe others. If a court is satisfied an offender has breached a condition, it enjoys wide latitude to excuse or mandate a remedy, which can include a direction the offender serve the remainder of the unexpired sentence in custody. [ 27 ] As noted above, the seminal case on the conditional sentence regime is the unanimous decision of the Supreme Court of Canada in R. v. Proulx .

There, Lamer C.J. carefully pointed out a CSO is not a probation order—it is a sentence of imprisonment that helps achieve Parliament’s objectives of reducing incarceration and promoting restorative justice. These objectives were described by the Chief Justice: [17] Parliament has sought to give increased prominence to the principle of restraint in the use of prison as a sanction through the enactment of s. 718.2(

d) and ( e ).

Section 718.2(

d) provides that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”, while s. 718.2(

e) provides that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”. Further evidence of Parliament’s desire to lower the rate of incarceration comes from other provisions of Bill C-41: s. 718(

c) qualifies the sentencing objective of separating offenders from society with the words “where necessary”, thereby indicating that caution be exercised in sentencing offenders to prison; s. 734(2) imposes a duty on judges to undertake a means inquiry before imposing a fine, so as to decrease the number of offenders who are incarcerated for defaulting on payment of their fines; and of course, s. 742.1, which introduces the conditional sentence.

In Gladue , at para. 40, the Court held that “[t]he creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration”. [ 28 ] With respect to restorative justice, the Chief Justice wrote: [18] Restorative justice is concerned with the restoration of the parties that are affected by the commission of an offence. Crime generally affects at least three parties: the victim, the community, and the offender. A restorative justice approach seeks to remedy the adverse effects of crime in a manner that addresses the needs of all parties involved.

This is accomplished, in part, through the rehabilitation of the offender, reparations to the victim and to the community, and the promotion of a sense of responsibility in the offender and acknowledgment of the harm done to victims and to the community. [ 29 ] The availability of a conditional sentence promotes these objectives through a punitive sanction which also permits emphasis on rehabilitation, as well as reparations for both the victim and the community: [21] The conditional sentence was specifically enacted as a new sanction designed to achieve both of Parliament’s objectives.

The conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders. The offenders who meet the criteria of s. 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. These offenders’ liberty will be constrained by conditions to be attached to the sentence, as set out in s. 742.3 of the Code . In case of breach of conditions, the offender will be brought back before a judge, pursuant to s. 742.6.

If an offender cannot provide a reasonable excuse for breaching the conditions of his or her sentence, the judge may order him or her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence. [22] The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration.

Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence . It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn. [Emphasis in original] [ 30 ] Since 1997, there are four criteria for a conditional sentence order.

Lamer C.J. identified them as follows (para. 46): (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. [ 31 ] It is the latter two criteria that usually attract the most controversy—and coincidentally, where the Crown says the trial judge

here went astray. [ 32 ] There are two factors in play to assess danger to the community: the risk of re-offending; and, the gravity of the damage that could be caused. Lamer C.J. explained: [69] In my opinion, to assess the danger to the community posed by the offender while serving his or her sentence in the community, two factors must be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. If the judge finds that there is a real risk of re-offence, incarceration should be imposed.

Of course, there is always some risk that an offender may re-offend. If the judge thinks this risk is minimal, the gravity of the damage that could follow were the offender to re-offend should also be taken into consideration. In certain cases, the minimal risk of re-offending will be offset by the possibility of a great prejudice, thereby precluding a conditional sentence. [ 33 ] To assess the risk of re-offence, the court should consider the track record of the offender in terms of compliance with previous court orders and criminal antecedents, if any.

Lamer C.J. observed the list of factors to consider is not closed and that the risk a particular offender poses to the community must be assessed in each case, on its own facts (para. 71). [ 34 ] As to the gravity of potential damage, Lamer C.J. commented: [74] Once the judge finds that the risk of recidivism is minimal, the second factor to consider is the gravity of the potential damage in case of re-offence.

Particularly in the case of violent offenders, a small risk of very harmful future crime may well warrant a conclusion that the prerequisite is not met: see Brady , supra , at para. 63. [ 35 ] Often the appropriateness of a CSO stands or falls on the issue whether such a disposition would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code . These directives determine not just the type and length of sentence, but also whether an offender should serve their sentence in jail or in the community and under what conditions ( Proulx , paras. 77-78 ).

It is appropriate to turn to those principles. PRINCIPLES OF SENTENCE [ 36 ] The relevant statutory directives in force at the relevant time were: Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. […] Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,

(

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 orreleased on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [37] In R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688, the Court labelled these new provisions as a “watershed”,demonstrating Parliament’s two principal objectives of reducing prison as a sanction and placing greater reliance on restorative principlesin sentencing (para. 39). [38] The reasons in Proulx not only addressed the new conditional sentence option but also the provisions that codified the purposeand principles of sentence and how they informed the decision on whether to impose a conditional sentence. [39] Lamer C.J. explained the newly emphasized role of restorative justice and rehabilitation reflected in the codified sentencingregime:

(2) Expanding the Use of Restorative Justice Principles in Sentencing [18] Restorative justice is concerned with the restoration of the parties that are affected by the commission of an offence. Crimegenerally affects at least three parties: the victim, the community, and the offender. A restorative justice approach seeks to remedy theadverse effects of crime in a manner that addresses the needs of all parties involved.

This is accomplished, in part, through therehabilitation of the offender, reparations to the victim and to the community, and the promotion of a sense of responsibility in theoffender and acknowledgment of the harm done to victims and to the community. [19] Canadian sentencing jurisprudence has traditionally focussed on the aims of denunciation, deterrence, separation, and rehabilitation,with rehabilitation a relative late-comer to the sentencing analysis: see Gladue, at para. 42. With the introduction of Bill C-41, however,Parliament has placed new emphasis upon the goals of restorative justice.

Section 718 sets out the fundamental purpose of sentencing, aswell as the various sentencing objectives that should be vindicated when sanctions are imposed. In Gladue, supra, Cory and Iacobucci JJ.stated (at para. 43): Clearly, s. 718 is, in part, a restatement of the basic sentencing aims, which are listed in paras. (

a) through (d). What are new, though, areparas. (

e) and (f), which along with para. (

d) focus upon the restorative goals of repairing the harms suffered by individual victims and bythe community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender,and attempting to rehabilitate or heal the offender. The concept of restorative justice which underpins paras. (d), (e), and (

f) is brieflydiscussed below, but as a general matter restorative justice involves some form of restitution and reintegration into the community. Theneed for offenders to take responsibility for their actions is central to the sentencing process... . Restorative sentencing goals do notusually correlate with the use of prison as a sanction. In our view, Parliament’s choice to include (

e) and (

f) alongside the traditionalsentencing goals must be understood as evidencing an intention to expand the parameters of the sentencing analysis for all offenders.[Emphasis added; citation omitted.] [20] Parliament has mandated that expanded use be made of restorative principles in sentencing as a result of the general failure ofincarceration to rehabilitate offenders and reintegrate them into society. By placing a new emphasis on restorative principles, Parliamentexpects both to reduce the rate of incarceration and improve the effectiveness of sentencing.

During the second reading of Bill C-41 onSeptember 20, 1994 (House of Commons Debates, vol. IV, 1st Sess., 35th Parl., at p. 5873), Minister of Justice Allan Rock made thefollowing statements: A general principle that runs throughout Bill C-41 is that jails should be reserved for those who should be there.

Alternatives should beput in place for those who commits offences but who do not need or merit incarceration. … Jails and prisons will be there for those who need them, for those who should be punished in that way or separated from society... . [T]hisbill creates an environment which encourages community sanctions and the rehabilitation of offenders together with reparation to victimsand promoting in criminals a sense of accountability for what they have done. It is not simply by being more harsh that we will achieve more effective criminal justice.

We must use our scarce resources wisely. [Emphasis in original] [40] The new s. 718.2(

e) directs courts to consider “all available sanctions other than imprisonment that are reasonable in the

circumstances”. Yet s. 742.1 defines a conditional sentence as a sentence of imprisonment. What role, if any, could s. 718.2(

e) play if acourt has already rejected probation or a fine? To resolve this apparent paradox, Lamer C.J. turned to the equally authoritative Frenchversion: [93] The language used in the French version avoids this difficulty. The French version reads as follows: 718.2 Le tribunal détermine la peine à infliger compte tenu également des principes suivants: ...

e) l’examen de toutes les sanctions substitutives applicables qui sont justifiées dans les circonstances, plus particulièrement en ce quiconcerne les délinquants autochtones. [Emphasis added.] [94] The use of “sanctions substitutives” for “sanctions other than imprisonment” in the French version of this provision means that s.718.2(

e) plays a role not only in the decision as to whether imprisonment or probationary measures should be imposed (preliminary stepof the analysis), but also in the decision as to whether to impose a conditional sentence of imprisonment since conditional sentences areclearly “sanctions substitutives” to incarceration. [95] The French version and the English version of s. 718.2(

e) are therefore in conflict. In conformity with a long-standing principle ofinterpretation, to resolve the conflict between the two official versions, we have to look for the meaning common to both: see for instanceKwiatkowsky v. Minister of Employment and Immigration, (SCC), [1982] 2 S.C.R. 856, at pp. 863-64; Gravel v. City ofSt-Léonard, (SCC), [1978] 1 S.C.R. 660, at p. 669; Pfizer Co. v. Deputy Minister of National Revenue for Customs andExcise, (SCC), [1977] 1 S.C.R. 456, at pp. 464-65; Tupper v. The Queen, (SCC), [1967] S.C.R. 589, atp. 593; Goodyear Tire and Rubber Co. of Canada v. T.

Eaton Co., (SCC), [1956] S.C.R. 610, at p. 614; P.-A. Côté,Interprétation des lois (3rd ed. 1999), at pp. 412-15. Accordingly, the word “imprisonment” in s. 718.2(

e) should be interpreted as“incarceration” rather than in its technical sense of encompassing both incarceration and a conditional sentence. Read in thislight, s. 718.2(

e) clearly exerts an influence on the sentencing judge’s determination as to whether to impose a conditionalsentence as opposed to a jail term. [Emphasis added] [41] Lamer C.J. recognized the gravity of an offence is an important consideration whether a conditional sentence is appropriate butcautioned against judicially created presumptions against a conditional sentence order for specific offences or the adoption of startingpoints for certain offences (paras. 81, 87-88).

He summarized the analytical framework as follows: [113] In sum, in determining whether a conditional sentence would be consistent with the fundamental purpose and principles ofsentencing, sentencing judges should consider which sentencing objectives figure most prominently in the factual circumstancesof the particular case before them. Where a combination of both punitive and restorative objectives may be achieved, aconditional sentence will likely be more appropriate than incarceration.

In determining whether restorative objectives can besatisfied in a particular case, the judge should consider the offender’s prospects of rehabilitation, including whether the offender hasproposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether theoffender has acknowledged his or her wrongdoing and expresses remorse; as well as the victim’s wishes as revealed by the victim impactstatement (consideration of which is now mandatory pursuant to s. 722 of the Code).

This list is not exhaustive. [114] Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there areaggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact thatrestorative goals might be achieved by a conditional sentence.

Conversely, a conditional sentence may provide sufficient denunciationand deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditionsimposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditionalsentence is to be served. [115] Finally, it bears pointing out that a conditional sentence may be imposed even in circumstances where there areaggravating circumstances relating to the offence or the offender.

Aggravating circumstances will obviously increase the need fordenunciation and deterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simplybecause aggravating factors are present. I repeat that each case must be considered individually. [Emphasis added] [42] Before summarizing the trial judge’s reasons on sentence and the Crown’s complaints of error, it is useful to set out the essenceof the trial proceedings to understand the circumstances of the offences. THE TRIAL [43] The offence happened on September 19, 2018, on a PQ Properties job site.

Paul Quinn is the principal of PQ Properties. Hehad nine employees. His safety officer was Stephanie Cunningham. Ms. Cunningham reached out to the victim, Nhlanhla Dlamini onAugust 27, 2018, to offer him a job with PQ Properties. [44] Ms. Cunningham knew Mr. Dlamini previously when she worked on the contractor’s desk at the local Home Hardware. Sheknew he had been enrolled at NSCC in the carpentry program. [45] Mr. Dlamini emigrated from South Africa with his family in 2013 when he was 17 years of age. He graduated from highschool in 2016 and then attended NSCC for their two-year carpentry program.

He was unemployed when Ms. Cunningham called him. Mr. Dlamini met with Mr. Quinn and Ms. Cunningham and started work with PQ Properties on Tuesday, September 4, 2018.

[ 46 ] At trial, the key factual witnesses called by the Crown were Nhlanhla Dlamini (referred to throughout the proceedings simply as NH), Mr. Quinn, Ms. Cunningham, and crew members Keith Jordan and Robert MacFarlane. For reasons that will become obvious, the Crown declined to call crew member Dan Clarke. [ 47 ] When Mr. Dlamini met the crew, rather than struggle with his name, as was his practice, he invited them to just call him NH. Keith Jordan was NH’s foreman. NH described Keith as a really funny guy. It was Keith who would assign NH jobs and provide on- the-job instruction. [ 48 ] Mr.

Jordan testified he gave NH cigarettes, coffee and took him to lunch. After one week on the job, Jordan gave NH a nickname – “Squiggy”. He explained he gave all apprentices nicknames. Mr. Jordan told the judge there was nothing racial about the nickname “Squiggy”. It was based on a character of that name in the now somewhat ancient sitcom “Laverne and Shirley”: Q. No. We heard evidence from NH that he got a nickname. A. Yeah. Q. Where did that come from and who gave it to him? A. I gave him the nickname. Q. Right. A.

I called him Squiggy, not the other name that’s in the press and stuff like that, not knowing there was anything racial about it. Q. Okay. A. Shawn is six-four or something. NH is this big. It just looked like Lenny and Squiggy. Q. Okay. A. And I ... all the apprentices, I always give them all nicknames. Q. Okay. A. So it wasn’t a racist thing. I mean ... Q. So you gave him ... A. But I did it. Q. Yeah. You gave him the nickname Squiggy. A. I did. Q. Okay. And Lenny and Squiggy, where does that come from? A.

Laverne and Shirley, from an old television show 40 years ago. [ 49 ] NH confirmed Keith Jordan gave him the nickname and that is what NH was then called. There was no evidence during the trial or sentence proceedings that NH was in any way offended by the nickname. [ 50 ] As for the day of the offence, Keith Jordan assigned NH to set up staging ahead of the team of Shawn Hynes and Dan Clarke who were installing 2x6 as a top plate on the walls.

Clarke would handle the wood, and Hynes would nail the 2x6 in place with a nail gun. [ 51 ] There were two completely different version of events as to what happened to NH. Everyone agreed nail guns are dangerous. The ones on the job site operated with 90 lbs of air pressure. With the trigger depressed, they shoot a nail when the safety plunger is pushed back as it is pressed against wood or any object.

Everyone also agreed that NH was struck in the back with a 3½ inch nail, but how that happened was the central issue at trial. [ 52 ] NH testified he had made a teasing remark to the respondent “you ain’t done with that” as he moved to set up more staging. It was, in his view, work teasing. The respondent is said to have replied “you ain’t going any faster”. NH placed Dan Clarke over by the saw, well away from the staging.

As NH turned, he said he saw the respondent pointing the nail gun at him as the respondent went to pull the safety plunger back—NH turned to take cover but heard the nail gun discharge and was struck in the back. NH testified the respondent ran to him and said he did not think it would get you: …And that’s when he said ... he came running down and jumped next to me, and he goes, I didn’t think I’d get ya, man. I’m sorry. And he pulls the nail out. He’s like, I thought it would have ricocheted on the wall, like, in the ... before the door opening or something, like, to scare ya. [ 53 ] Dr.

Dwayne Coad confirmed seeing NH the evening of September 19, 2018, observing the small puncture wound in NH’s back. He also had suffered a pneumothorax whereby the lung had been punctured which allowed air to escape into the potential space between the outer lining of the lung and the inside of the chest wall. NH was described as very stable. A surgeon inserted a catheter to drain the air in that space. The remaining Crown witnesses testified to uncontested matters of no relevance to any trial or sentence issues.

[ 54 ] Strangely, without objection by the Crown, the trial judge twice prevented the respondent from cross-examining or leading evidence that NH originally thought the discharge had been an accident. [ 55 ] The respondent called evidence. Dan Clarke had given a statement to the police on September 26, 2018 about the incident. Originally scheduled and subpoenaed to be a Crown witness, the prosecutor demurred. The respondent called him. [ 56 ] Mr. Clarke had started with PQ Properties just days prior to NH.

Clarke testified he was on the staging with the respondent handling the 2x6 top plate which the respondent would nail in place using the nail gun. He said there was no conversation between NH and the respondent. [ 57 ] As the respondent used the gun, the 2x6 splintered and the nail ricocheted into the house. Clarke had no idea where it had gone. They finished with that piece of top plate. When he got down from the staging, he alerted the respondent to NH laying on the ground outside the patio door. At first, he thought NH had twisted his foot. When they got to NH, it became clear the nail had struck him.

NH asked the respondent to pull it out, which he did. [ 58 ] The respondent voluntarily gave a statement to the police on September 27, 2018 in which he explained what had happened. The Crown chose not to introduce that statement. The respondent testified at trial. He explained it was normal practice to have nail guns set up with a trigger so that the gun discharged when the plunger (sometimes described as the teeth of a gun) depressed on contact with the wood. Further, the teeth of the gun are not sharp and can slip on cold or wet wood. It had rained that day.

When he was attaching the top plate with Dan Clarke, the nail gun slipped as he tried to “toe-nail” the 2x6 into place and the nail went out the side of the piece of wood and ricocheted into the inside of the house. This took a chip off the side of the 2x6. [ 59 ] The respondent, as well as others, identified the chip out of the 2x6 caused by the slip of the nail gun in photographs taken by Ms. Cunningham. [ 60 ] The respondent denied any bantering with NH during his work on the top plate, and that he said to NH, “I didn’t think I’d get you.

I thought it would ricochet off the wall”. [ 61 ] The respondent gave detailed evidence of the good relationship he and the other crew members had had with NH. The respondent had taught him how to read blueprints and lay out walls.

He had given NH a brand-new imperial tape measure to replace his metric version. [ 62 ] The respondent and every crew member confirmed they would never pull back the safety plunger on a nail gun due to the inherent danger, including the high probability they would injure themselves if they attempted to do so. [ 63 ] At the end of the evidence on September 19, 2019, and before closing submissions as to whether the Crown had established the respondent’s guilt beyond a reasonable doubt, the trial judge ill-advisedly asked counsel to make submissions on whether the court ought to make factual findings on the existence of aggravating factors relevant to sentence: And I would invite ... well, and more than just invite, I’m going to require counsel to make submissions to the Court that if the Court should, should record verdicts of guilty in relation to either of the offences or any legally admissible included offences, whether the Court ought to make findings of fact in accordance with the provisions of

section 724 of the Criminal Code and

section 718.2 of the Criminal Code as to the existence of any aggravated ... statutorily aggravating circumstances. Because in my view, that is a matter that, that should be addressed at the earliest possible opportunity. Any issues that counsel wish to raise prior to the recess? [Emphasis added] [ 64 ] Later that day, defence counsel, after completing his submissions on guilt or innocence, said he understood that the Crown would not be asserting any statutory aggravating factors. The Crown confirmed it would not be relying on any of the statutory aggravating factors set out in s. 718.2 : MR.

GORMAN: ... oh, I understand that. But the interrelationship between 718.2 and, and 724, should you so find that aggravating feature to exist in making your findings at trial, then you could consider that in examining 718.2 as I understand the interrelationship. It’s a bit of a moot point in any event because I would submit, Your Honour, that there is not evidence which rises to the level of proof beyond a reasonable doubt of the aggravating features in 718.2, specifically as it may relate to race, religion, ethnic origin, and the likes of those listed factors. It doesn’t rise to that level.

There’s been some suggestion or inference, but I submit it doesn’t rise to that level. Subject to any questions on that discrete point, that, that would be my thoughts with respect to the aggravating features in 718.2. [ 65 ] Mr. Scott, at the hearing of this appeal, properly and fairly conceded that there was in fact no evidence these offences were motivated by bias, prejudice or race. [ 66 ] The trial judge delivered oral reasons on September 26, 2019. They are also unreported. The judge made numerous findings of fact. Many were extraneous to the adjudicative task he faced and unsupported by the evidence.

Many were not pertinent to any of the issues relevant to sentence. We will only refer to the ones that were. [ 67 ] The trial judge accepted NH’s version of events and rejected the respondent’s assertion he had not pointed the nail gun at NH. What is important is that the trial judge refused to find that the respondent intentionally fired the nail gun at NH. In other words, he had a reasonable doubt the respondent had discharged the nail gun intentionally. The intentional pointing of the nail gun was sufficient to constitute the offence of assault with a weapon.

His key findings were: For the reasons that follow, I find that the prosecution has proven each and every one of the necessary elements of both charges beyond a

reasonable doubt. I base this on my belief and the strong credibility of the evidence of N.H. While I accept some of the evidence of Mr. Hynes on certain uncontroversial points, I do not believe his account that this was an accident. Further, that account does not leave me in a state of reasonable doubt as to any of the elements of the two offences before the Court.

Accordingly, based on the evidence, which I do accept, I find the prosecution to have proven all of the elements of each charge beyond a reasonable doubt and I record findings of guilt in relation to Case Numbers 8319389 and 8319390. [ 68 ] The judge elaborated: At this point, Mr. Hynes had had enough from the new guy. As N.H. described it, Mr. Hynes faced N.H. and pointed the nail gun at him. N.H. saw Mr. Hynes reaching for the plunger to pull it back. At this point, N.H. felt that his safety was in jeopardy and he turned to run away. He headed for the patio door opening where the Sea Can [ph.] was located.

I’m convinced that Mr. Hynes wanted to scare N.H. by pointing the nail gun at him. Seeking to scare someone by pointing a potentially dangerous power tool is a real threat. A reasonable person, aware of the risk of injury, of pointing a tool of this nature, would immediately perceive this as a threat of bodily harm. […] As Mr. Hynes faced N.H. and proceeded to point the nail gun, he proceeded to rotate it sideways so that the grip of the gun was oriented horizontally, not vertically. It is clear to me from my observation of the construction of the plunger, that this sideways orientation allowed Mr.

Hynes to handle the plunger more easily and manipulate it without putting his fingers in the way. Still intending to scare N.H., Mr. Hynes pulled back the plunger. But recall how Mr. Hynes had been using the gun in nailing the top plate, he was keeping continuous pressure on the trigger. In the result, as soon as Mr. Hynes pointed the nail gun at N.H. and drew back the plunger, the nail gun fired. Did Mr. Hynes intend to fire the gun? Had he forgotten that he had kept the trigger depressed?

In my view, it is not necessary for the Court to decide these questions to render a verdict as a I shall explain shortly. [ 69 ] The trial judge said he did not discount the good character evidence the respondent used nail guns safely, but reasoned anyone is prone to “bad judgment” when “one acts on the spur of the moment”. [ 70 ] With respect to the charge of criminal negligence causing bodily harm, this was made out by the pointing of the nail gun and its discharge when the respondent pulled back on the plunger, perhaps having forgotten the trigger was depressed: I find that the prosecution has proven beyond a reasonable doubt that Mr.

Hynes pointed the nail gun at N.H. When he did so, he had the trigger depressed from the last use of the gun so that it was in a dangerous and ready-to-fire condition. This was a marked and substantial departure from the standard of care of a reasonable person in the circumstances and it showed a wanton or reckless disregard for the safety of N.H. The facts speak for themselves, given the firing potential and the danger potential obviously inherent in a nail gun that is armed with sealing spikes. The gun discharged when Mr. Hynes pulled back the plunger.

Whether he intended to fire the gun or had forgotten that the trigger was depressed is immaterial . He had markedly and substantially breached the [standard] of care called for in the handling of a nail gun. He pointed it at N.H .. The spike was fired, struck N.H., and caused him significant bodily harm. Mr. Hynes’ breach of the standard of care was the substantial cause of this injury. The criminal negligence count is proven beyond a reasonable doubt, [Emphasis added] [ 71 ] As for elements of the offence of the assault with a weapon: Furthermore, Mr. Hynes did this without N.H.’s consent.

He did it to scare N.H .. That intent to scare constituted a threat by gesture to apply force to N.H., which caused N.H. on reasonable grounds, to believe that Mr. Hynes was going to fire the nail gun at him. Any reasonable person would have realized the risk of bodily harm inevitably and unavoidably inherent in the pointing of a nail gun at another. The nail gun was a weapon, as Mr. Hynes used it to threaten N.H.. Even if Mr. Hynes had not fired the gun, the mere pointing of it to scare was sufficient to constitute an assault as comprehended in paragraph 265(1) (

b) of the Code , and the use of the nail gun in committing that assault constitutes the offence of assault with a weapon. [ 72 ] With these circumstances of the offences in mind, we can now turn to the sentencing proceedings and the trial judge’s reasons. SENTENCE PROCEEDINGS [ 73 ] Originally, the judge set November 15, 2019 for the sentence hearing. A Pre-Sentence Report was in hand, along with a Victim Impact Statement from NH. Community impact statements were prepared by Raymond Sheppard dated September 18, 2019, and one by Angela Bowden dated November 13, 2019.

The defence requested an adjournment due to the late receipt of the Community Impact Statements and to complete assembly of letters of references for the respondent. [ 74 ] The sentence proceedings were adjourned for a variety of reasons, including the exigencies of the COVID-19 pandemic. There is no need to recount the various dates. [ 75 ] The parties filed written briefs respectively on January 26 and 28, 2020. The Crown stressed the moral blameworthiness of the respondent’s actions in intentionally pointing the nail gun to frighten NH and the physical and psychological harm caused by this reckless behaviour.

The Crown suggested that the respondent, as a senior employee with PQ Properties, was in a position of trust and

authority vis-à-vis NH—as such, his acts constituted a breach of trust and hence were a statutory aggravating factor pursuant to s. 718.2(a)(iii) of the Criminal Code . The Crown recommended a sentence of 12-15 months “real jail”, to be followed by probation in the range of 15-18 months. [ 76 ] The defence urged a suspended sentence and probation. Since the Crown led no evidence that race played any

part in the offence, counsel asked the court to disregard the Community Impact Statements which referenced “racism”, “racial abuse”, and “white supremacy” to the extent that they suggested the respondent’s actions were motivated by bias, prejudice or hate based on race. [ 77 ] The respondent was then 44 years of age, and he had never been before the courts. He was a law-abiding citizen, a well- respected member of society, and supported his two dependent children who lived with him. [ 78 ] The trial judge heard sentence submissions on February 26, 2020. Mr. Sheppard and Ms.

Bowden read their respective Community Impact Statements. Mr. Sheppard offered his opinion that the offence happened for two reasons, jealousy and race. He referenced the historical acts of racism and violence against African people in Nova Scotia and the sentiment in the African-Nova Scotian community of having been traumatized by this offence. Ms. Bowden identified herself as one of the lead advocates and activists with Mr. Sheppard. She echoed Mr.

Sheppard’s comments about the community’s emotional and psychological wound caused by the offence. [ 79 ] The Crown again acknowledged it did not rely on racism as being an aggravating factor. Nonetheless, he then made this seemingly offhand comment: But what I do draw to Your Honour’s attention is that in considering the purposes and principles of sentencing in 718 and 718.1 and 718.2, you can rely upon the provisions of

Section 726.1 and consider all evidence that you deem relevant. [ 80 ] The Crown argued the trial judge needed to emphasize denunciation and deterrence as the “primary focus” given the high moral blameworthiness of the respondent, an experienced individual who would have been well aware of the inherent danger of a pneumatic nail gun and what might happen if it were recklessly discharged.

He also pointed out this Court’s historic emphasis on denunciation and deterrence for crimes of violence. [ 81 ] Defence counsel highlighted the following mitigating factors: • The respondent had never been charged before with a criminal offence; • He is the father of three children, two of which remain in his primary care; • After graduating from High School, he completed a NSCC auto mechanics and small engine repair program.

He owned and operated a successful siding company in British Columbia for 19 years before returning to Nova Scotia; • Since his return to Nova Scotia, he has been continuously employed with P.Q. Properties, and valued by Mr.

Quinn as one of the best employees he has ever had; • The PSR and the 20 letters of reference from family, friends, acquaintances, co-workers confirm he is a quiet, non-violent, non-aggressive soft spoken individual; • The respondent had been greatly impacted by the incident and resulting court processes, having been on bail for 18 months —and had to go on stress leave for 7 weeks; • The media stories that had painted the offence as motivated by race had led to threats of “payback” by email and other communications that have created a real and reasonable fear for his safety; included were obscene labels and that “someone will get you and your kids”.

The respondent is afraid to leave his house. He goes to work and then home. [ 82 ] As for the issue of race, defence counsel emphasized, despite allegations being made outside of court, there was no evidence the respondent’s actions were in any way motivated by racism: As the Crown has confirmed today quite fairly, the Crown is not alleging that racism is an aggravating factor for the Court’s consideration in sentencing. I would submit, Your Honour, that there was no evidence led during the trial to establish that Mr.

Hynes’s actions were in any way motivated by racism. [ 83 ] The trial judge interjected; he would not be influenced by allegations made outside of court: THE COURT: Well, I can respond to that very briefly, Mr. O’Blenis. MR. O’BLENIS: Sure. THE COURT: The Court is entitled to know only what is presented to the Court in Court. Certainly there are concepts of judicial notice in relation to legislative facts and social facts.

But allegations that might have been outside the Court, I can assure you, are not known to the Court because I am prohibited from knowing them. [ 84 ] At the end of the sentence hearing, the trial judge, as the Code requires, asked the respondent if he had anything to say (s. 726). He offered the following brief comments: MR. HYNES: I’d just like to say … well NH himself is not here. I’d like to say I’m sorry for any pain and suffering that this situation has caused him or the community ... the black community themselves. [ 85 ] The trial judge reserved.

As noted earlier, he delivered oral reasons on April 23, 2021. Before analyzing those reasons, it is

useful to focus on what the Crown says are the issues. ISSUES [ 86 ] Originally, the Crown’s Application for Leave to Appeal proposed the following four grounds of appeal: 1. The Learned Trial Judge erred in law in his assessment of the appropriateness of a conditional sentence of imprisonment. 2. The Learned Trial Judge erred in law by speculating about the effects of imprisonment on the offender. 3. The Learned Trial Judge erred in law by considering a case in his assessment of parity without bringing it to the attention of counsel and without inviting submissions on its applicability. 4.

The Learned Trial Judge erred in law in ordering a manifestly unfit sentence. [ 87 ] The Crown’s factum reduced these grounds to two: 1. That the Learned Trial Judge erred in law in his assessment of the availability and appropriateness of a conditional sentence of imprisonment. 2. Regardless, the Learned Trial Judge erred in law in ordering a manifestly unfit sentence. [ 88 ] We agree the trial judge erred in law in a variety of ways.

The problem for the Crown is that these errors favoured the Crown’s request for a sentence of imprisonment as opposed to a purely probationary sentence. [ 89 ] With respect, we see no reversible error in the trial judge’s conditional sentence assessment, nor is that sentence manifestly unfit. TRIAL JUDGE’S SENTENCE REASONS [ 90 ] We will first address the trial judge’s errors and then turn to his conditional sentence analysis.

The most significant errors are his findings that are completely unsupported by the record and reliance on non-existent aggravating factors. [ 91 ] The trial judge found that imprisonment, as opposed to probation, was required because of the existence of aggravating factors of anti-Black racism; the respondent being in a position of trust; and, NH was a vulnerable victim. [ 92 ] The judge reasoned: I find that imprisonment is required in this case. NH is black. The history of anti-black discrimination in Nova Scotia is a historic fact which is continuing.

Discrimination and intimidation of racialized and marginalized persons will occur in many locations including workplaces, and it happened to NH. NH came to Canada from a developing country. Immigrants and refugees arriving in Canada may experience many forms of social and structural prejudice. They face housing and income insecurity. They encounter barriers to employment. When they find work, it is often in risky, underpaying occupations where they are not accorded respect, dignity, and support. And again, this was NH’s experience with Mr.

Hynes. [ 93 ] There was absolutely no evidence at trial that NH suffered any form of discrimination or intimidation in the workplace due to his racial background. Although new Canadians may experience social and structural prejudice or barriers to employment, save risky underpaid occupations without respect, dignity and support, that potential social context factor had no role to play in this case. [ 94 ] Furthermore, to say that this was NH’s experience with the respondent is directly contradicted by the evidence of every crew member, including NH himself—evidence the trial judge accepted.

In his trial reasons, the trial judge found as a fact the absence of any animus: “In fact, to the contrary. Everyone at the work site got along well with each other”. [ 95 ] As for the aggravating factor of an offence motivated by bias or racial prejudice, the trial judge appeared to accept this was a non-factor, but reasoned it did not matter because he considered a substitute aggravating factor—NH was a vulnerable victim.

The judge said this: Defence counsel has reminded the Court that the Prosecution conceded at trial that it could not rely on the aggravating bias, prejudice, hatred-motive factor under paragraph 718.2 (a)(

i) of the Criminal Code . It is a nice point whether that concession would operate as a conclusive and formal admission of the fact as contrasted with a legal issue. In my view, it is unnecessary for the Court to resolve this point as I am satisfied that the evidence establishes conclusively that NH was a vulnerable victim. [Emphasis added] [ 96 ] It was far from a “nice point”. If the Crown asks a judge to impose a harsher or different sentence due to the presence of aggravating factors, it has the burden to establish those factors. The offender then must be given the opportunity to provide input by evidence or submissions. Neither of these things happened.

[ 97 ] Here, the Crown never alleged NH was a vulnerable victim. Nonetheless, the trial judge reasoned: Victim vulnerability as an aggravating sentencing factor was recently codified in

Section 718.04 of the Criminal Code enacted in 2018 SC 25,

Section 292.1 that came into force on the 19th of September 2019, and so after the date of these offences. However, it is a factor that has long been recognized by Courts.

So the statute merely codified a long-recognized aggravating sentencing factor, and I would refer specifically to The Queen and Butler out of our Court of Appeal and The Queen and Charlette out of the Manitoba Court of Appeal, cases that underscored the fact that vulnerability might arise due to the circumstances of a victim’s work. [ 98 ] There is no doubt that our Court, and others, have long accepted that taxi drivers, convenience, and fast-food store operators are particularly vulnerable to attacks by offenders looking for easy cash.

Crimes that prey on such victims demand emphasis on denunciation and deterrence (see, for example: R. v. Charlette , 2015 MBCA 32 , at para. 37 ; R. v. Butler , 2008 NSCA 102 , at para. 25 ). Other examples of vulnerable victims include children, the elderly, persons with disabilities—in essence, those less able to protect themselves. [ 99 ] Not only did the Crown not allege the victim was a vulnerable individual, but there was also no evidence of NH’s vulnerability because of personal circumstances or his work. NH was a fellow employee.

Granted, he was the most junior member of the crew, but it was legally wrong for the trial judge to find vulnerability as an aggravating factor. [ 100 ] The only attempt by the Crown to uphold the trial judge’s finding of vulnerability as an aggravating factor was NH’s youth. The victim, at the time of the offence, was 22 years of age. A young man to be sure, but that does not equate to vulnerability in these circumstances. [ 101 ] The Criminal Code directs the procedure for hearing evidence and resolving factual disputes relevant to sentence.

The judge must give the Crown and the offender an opportunity to make submissions with respect to facts relevant to the sentence to be imposed. If there is a dispute on those facts, the judge can hear evidence and make findings—normal facts on a balance of probabilities, but the Crown must establish any aggravating fact beyond a reasonable doubt. The relevant provisions are: Submissions on facts 723

(1) Before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed . Submission on evidence

(2) The court shall hear any relevant evidence presented by the prosecutor or the offender. Production of evidence

(3) The court may, on its own motion, after hearing argument from the prosecutor and the offender, require the production of evidence that would assist it in determining the appropriate sentence. Compel appearance

(4) Where it is necessary in the interests of justice, the court may, after consulting the parties, compel the appearance of any person who is a compellable witness to assist the court in determining the appropriate sentence. Hearsay evidence

(5) Hearsay evidence is admissible at sentencing proceedings, but the court may, if the court considers it to be in the interests of justice, compel a person to testify where the person (

a) has personal knowledge of the matter; (

b) is reasonably available; and (

c) is a compellable witness. Information accepted 724

(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender. Jury

(2) Where the court is composed of a judge and jury, the court (

a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (

b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact. Disputed facts

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,

(

a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence wasadduced at the trial; (

b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it; (

c) either party may cross-examine any witness called by the other party; (

d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact beforerelying on it in determining the sentence; and (

e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previousconviction by the offender. [Emphasis added] [102] The Crown, when invited by the trial judge to make submissions on statutory aggravating factors prior to conviction, said therewere none.

During the sentence proceedings, the Crown reiterated it could not establish the offences were motivated by bias or prejudicebased on race, national or ethnic origin, or any similar factor. [103] The trial judge said it was unnecessary for him to resolve this relevant aggravating fact due to his view the victim was avulnerable individual.

As we have outlined, this constituted legal error. [104] Moreover, the trial judge found as an aggravating factor that the offences were motivated by implicit bias. [105] The judge reasoned: There is a strong need for the denunciation of workplace violence motivated by implicit bias. Violence of this nature in theworkplace operates to perpetuate structures of inequality of access to employment for communities that have experienced generations offormal and informal discrimination.

It can lead to and in this case led to loss of employment or, if not a total loss, then under-employment. [Emphasis added] [106] No one provided an explanation for the trial judge’s statement the offences were aggravated by having been motivated by“implicit bias”. The Shorter Oxford English Dictionary[2] provides the following about the meaning of “implicit”: Implicit 1. Entangled, entwined; involved—involved in each other; overlapping, … 2.

Implied though not plainly expressed; naturally ornecessarily involved in something else. … [107] The online version of the Merriam-Webster Dictionary defines “implicit bias” as a noun: implicit bias noun : a bias or prejudice that is present but not consciously held or recognized [108] In R. v. Chouhan, 2021 SCC 26, the Court recognized the critical role jury instructions play in deliberations free from implicitbias—biases which are unconscious such that individuals do not recognize they hold a particular bias and would honestly deny having ifasked (para. 49).

If the trial judge used the term in this sense, we would see no error in principle. [109] However, later in his reasons, the trial judge erred when he viewed the offence as having been motivated by discriminatorybeliefs: These factors combine to satisfy the Court that a purely probationary sentence would not accomplish the necessary degree ofdenunciation and general deterrence needed to send a clear and unmistakable message to the public that workplace conduct, especiallywhen motivated by discriminatory beliefs, will not be tolerated in a just society based on equality and equity. [Emphasis added] [110] Historical or current anti-Black racism, or any racism, is to be deplored.

Offences motivated by racism are egregious and deserveunmitigated denunciation and deterrence. [111] Canadian courts have recognized the need to squarely address racial prejudice and discrimination in jury selection (R. v. Parks(1993), (ON CA), 15 O.R. (3d) 324 (Ont. C.A.); R. v. Spence, 2005 SCC 71) and it can inform the sentence to beimposed on Black or other racialized minorities (R. v. Anderson, 2021 NSCA 62; R. v.

Morris, 2021 ONCA 680). [112] Social context, including anti-Black racism, should not be ignored or downplayed, but the mere fact the offender is white and thevictim Black does not permit a trial judge to find, without evidence or submissions, that the offence was motivated by bias ordiscriminatory beliefs. [113] As previously noted, the Crown told the trial judge it was not suggesting any statutory aggravating factors.

Nonetheless, in itssentencing brief, the Crown suggested the respondent was in a position of trust vis-à-vis the victim and this constituted a statutoryaggravating factor pursuant to s. 718.2(a)(iii). Unfortunately, the respondent’s counsel (not Mr. Brown) made no submissions on thisissue to the trial judge. [114]

Section 718.2(a)(iii) did not apply. The

section provides as follows:

718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, … (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, [ 115 ] The trial judge reasoned: Mr. Hynes breached his duty under the Occupational Health and Safety Act to take reasonable precautions to protect NH’s safety, particularly as NH was following his directions.

This constitutes the aggravating factor of breach of trust or authority under 718.2(a) (iii) of the Criminal Code . [Emphasis added] [ 116 ] This analysis is legally and factually flawed. [ 117 ] The evidence was uncontested—the foreman, Keith Jordan, gave directions that day to NH to set up the staging ahead of the respondent and Dan Clarke affixing the top plate. The respondent gave no directions to the victim that day. Even if he had, it did not create a position of trust or authority which he then abused. [ 118 ] Every citizen has a duty to their fellow citizens not to commit offences.

If they do so, they breach their duty to them and to society. It is when an offender voluntarily assumes a position of trust and then uses that position to commit an offence, it is an aggravating factor on sentence. [ 119 ] The well-established examples of breach of trust include: employers who sexually assault their employees; employees who steal or defraud their employers; financial managers; lawyers and judges or other court officials; doctors; parents and others in loco parentis to a victim.

However, simply because a victim trusted an offender does not necessarily create an aggravating factor with respect to sentence (see, for example: R. v. Oake , 2010 NLCA 19 ; R. v. Squires , 2012 NLCA 20 ). [ 120 ] Let us be clear—the respondent’s actions were egregious. They constituted an assault and showed a wanton and reckless disregard for the life or safety of the victim. NH suffered serious injuries. The respondent obviously had a duty to take reasonable precautions to protect the health and safety of NH and other persons at or near the workplace.

The respondent’s actions clearly breached that duty, but they did not constitute an abuse of authority or trust in relation to the victim. [ 121 ] Absent these three errors, the case for a non-custodial sentence, let alone a conditional sentence of imprisonment, becomes even stronger. Assessment of a conditional sentence of imprisonment [ 122 ] The Crown’s first ground of appeal claims the trial judge erred in his analysis of the approach mandated by R. v. Proulx .

This ground mushroomed into six complaints: the trial judge failed to consider the degree of damage in the event of re-offence; the trial judge oversimplified Parliament’s move “away from the carceral state models”; denunciation and general deterrence mandated incarceration; the trial judge’s emphasis on parity was misguided; the respondent’s personal circumstances gained undue prominence; and, the trial judge speculated about the effects of incarceration on the respondent. [ 123 ] With respect, we see no merit in any of these complaints—save the last.

The judge did make comments that could be characterized as impermissible speculation about the effects of incarceration. [ 124 ] Context is important. The trial judge had already concluded and announced the respondent was a proper candidate for a conditional sentence order. He explained what that entailed. The trial judge said he wanted to make an observation about preventing and predicting when anyone might commit a violent act and the use of state surveillance. He then commented: Those sorts of things might not be predictive, but they are preventive.

While we might not be able to forecast when someone will act violently, we do know that there are like circumstances that will make violence more likely and make it more likely to become normalized. And those circumstances include social isolation, family separation, income and housing insecurity, lack of primary medical and mental- health care, and most significantly exposure to violence. And yet these are the very effects that happen when someone is sentenced to serve a term in a prison or penitentiary. And so it is that imprisonment can lead to worse outcomes for communities.

Based on the experience of this Court dealing with institutional violence, the Court has some level of experiential evidence that institutions are places where persons may be exposed to extremist beliefs. [Emphasis added] [ 125 ] It is the bolded words that found the Crown’s complaint. In its factum, the Crown puts it this way: 91. The Appellant acknowledges the observation that jail can be a breeding ground for criminals. This may be particularly so for young persons who are incarcerated, particularly when they already come from marginalized or disadvantaged circumstances.

It appears, however, that the trial Judge placed emphasis on a risk that the Respondent, a well-adjusted person with significant community support, would somehow become a greater danger if he was incarcerated. This, the Appellant says, led the trial Judge to the binary conclusion that as long as a person does not need to be separated from society because of their level of danger, a CSO should be the norm.

[ 126 ] With respect, it would be wrong to focus on the trial judge’s comment about the possible impacts of incarceration without due regard to the trial judge’s careful analysis on why he thought a conditional sentence order was appropriate.

It is to his analysis we turn. [ 127 ] Just as Proulx directs, the trial judge was required to determine: if imprisonment were required, it would be less than two years; the safety of the community would not be endangered by the respondent serving it in the community; and a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. [ 128 ] First, the trial judge decided that probation alone would not be appropriate given the seriousness of the offence and the respondent’s high level of moral responsibility: For the reasons that follow, I find that the circumstances of the offences before the Court to be of such a high level of seriousness and Mr.

Hynes’ moral responsibility sufficiently elevated that a sentence of probation alone would not be sufficient to denounce these acts or to deter others from repeating them. [ 129 ] The Crown argued before the trial judge for a sentence of imprisonment of 12 to 18 months in a provincial institution, followed by probation and the requisite ancillary orders. [ 130 ] This posed little difficulty for the trial judge: Would a penitentiary sentence be required? I’m able to rule that out at once.

The Prosecution has advocated for a sentence of 12 to 18 months which would be a term of less than two years, and so below the upper limit for a conditional sentence if one were legal permissible. [ 131 ] The Crown faults the trial judge’s endangerment analysis because he failed to mention the gravity of the harm or damage that would be caused should the respondent re-offend. Lamer C.J.’s comments in Proulx were about the extent of the harm, particularly in the case of violent offenders (para. 74). [ 132 ] That can be a legitimate concern in some cases. Not here.

The trial judge found the respondent to be at a low risk of re- offending violently and, indeed, in general. This was amply supported by the record. The trial judge noted his blemish-free life, and the offence was out of character for the respondent. The judge said this: Mr. Hynes’ Pre-Sentence Report contains evidence that would allow the Court to infer that he is at a low risk of re-offending violently and, indeed, at a low risk of re-offending generally. Mr. Hynes’ conduct that led to the charges before the Court does not appear to be characteristic behaviour.

Service of a sentence in the community, therefore, in my view would not endanger public safety. The Pre-Sentence Report leads me to conclude that Mr. Hynes would cooperate with the terms of a conditional sentence. [ 133 ] As to the degree of harm to the community, it is essential to recall that this offence was not planned. The trial judge described it as a “spur of the moment”, out-of-character act by the respondent to recklessly point the nail gun at the victim.

There is no basis to imagine anything other than a low risk the respondent would re-offend while serving the CSO such that grave harm would result. [ 134 ] On appeal, the Crown accepts there is little chance the respondent is going to re-offend or breach the CSO’s conditions.

This is borne out by the Crown’s advice the authorities were highly complimentary about the respondent’s behaviour while serving the CSO. [ 135 ] The trial judge specifically referenced the analytical framework summarized by Lamer C.J. in Proulx (paras. 58-60 ), which requires the judge to consider if a conditional sentence would be consistent with the fundamental purpose and principles set out in ss. 718 to 718.2 . He did precisely that. [ 136 ] The Crown suggests the trial judge gave insufficient weight to denunciation and deterrence, and instead focussed on the personal circumstances of the respondent.

We agree with the respondent that it is overwhelmingly clear that denunciation and deterrence were at the forefront of the trial judge’s analysis. The judge’s references to denunciation and deterrence include: (a) … denunciation and deterrence must be given priority in imposing sentences for offences involving high levels of violence … denunciation and deterrence are top-ranked principles in this case … (

b) There is a strong need for the denunciation of workplace violence motivated by implicit bias. (c) … this case calls for unequivocal denunciation and a sentence reflecting that imperative. (d) … a purely probationary sentence would not accomplish the necessary degree of denunciation and general deterrence needed to send a clear and unmistakable message to the public that workplace conduct, especially when motivated by discriminatory beliefs, will not be tolerated in a just society based on equality and equity. (

e) Mr. Hynes has no prior findings of guilt. The stigma of a trial and conviction does operate as a major deterrent and may in appropriate cases satisfy the requirements of denunciation. (

f) For other cases involving persons who have not ritualized violence and who are likely to cooperate with community-based sentence management, the conditional sentence order was designed as a restrained and restorative means of accomplishing real denunciation and deterrence for serious offences simultaneously moving the criminal justice system away from the carceral state models. [ 137 ] As Derrick J.A. for a u

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