R. v. MacIntosh, 2018 NSPC 23

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. MacIntosh, 2018 NSPC 23 Date: 2018-07-19 Docket: 8189240 Registry: Pictou Between: Her Majesty the Queen v. Emily Anne MacIntosh DECISION REGARDING ADJOURNMENT Judge: The Honourable Judge Del W. AtwoodHeard: 2018: 19 July in Pictou, Nova ScotiaCharge: Para. 334(a), Criminal Code of CanadaCounsel: T. William Gorman for the Nova Scotia Public Prosecution Service Craig Clarke for Emily Anne MacIntosh By the Court: [1] Emily Anne MacIntosh is before the court today for the continuation of a sentencing hearing that began 16 June 2018; Ms.MacIntosh elected trial in this court and pleaded guilty to an offence under para. 334(

a) of the Criminal Code. [2] Defence counsel seeks to have the court refer Ms. MacIntosh to a restorative-justice program as authorised in

(2018) NS GazI, 42-50. The program authorisation allows expressly for post-conviction/pre-sentence referrals for cases of this nature, and comprehendsthe referral being made by the court. [3] The prosecution opposes a referral, and argues that, as Ms. MacIntosh’s conduct involves a substantial breach of trust, areferral to restorative justice would not be in keeping with the goals of the program authorization. [4] I am adjourning this hearing to 4 September 2018 at 1:30 p.m.

I am doing so for two reasons. [5] First, the court has just received a new community-impact statement which was not before the court on 16 June 2018 whencounsel made their initial sentencing submissions; counsel must have time to digest this new material and be given an opportunity toaddress the court on its contents. [6] Second, I harbour concerns about the lawfulness of the restorative-justice program authorization, at least to the extent that itconfers on the court a jurisdiction to make a post-conviction/pre-sentence referral to restorative justice. [7] Criminal law is a federal power, conferred under sub-s. 91(27) of the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.).

This includes necessarily the power to prescribe penalties for breaches of criminal law: see Constitutional Law of Canada, 5th ed(Toronto: Thompson Reuters, 2016) at para. 19.8. [8] The federal government has the authority to delegate this power to the provinces; this is the constitutional permission oflegislative inter-delegation: id., at para. 14.3; and see Prince Edward Island (Potato Marketing Board) v. H.B. Willis Inc., (SCC), [1952] 2 S.C.R. 392; see also R. v. W. (D.A.), [1988] N.S.J. No. 350 (S.C.T.D.). [9]

Section 717 of the Code deals with alternative measures; it falls under

Part XXII—Sentencing. Para. 717(1)(

a) of the Coderefers to “measures that are part of a program of alternative measures . . . authorized by a person . . . designated by the lieutenantgovernor in council of a province”. This would appear to delegate to the executive of Nova Scotia the authority to establish analternative-measures program. [10] The restorative-justice program authorization published in

(2018) NS Gaz I, 42, sets out in its

preamble the express declarationthat it is “approved by the Attorney General for Nova Scotia as a program of alternative measures pursuant to

section 717 of the

Criminal Code (Canada)”. [ 11 ] The restorative-justice program authorization is not a statute; it is subordinate legislation. If there is a conflict between subordinate legislation and the statute that enables it, then it is the statute that must prevail: Ruth Sullivan, Sullivan on the Construction of Statutes , 6 th ed (Markham: LexisNexis, 2014) at para. 11.56. [ 12 ] Here is the problem. [ 13 ] Ms. MacIntosh has been found guilty by the court of an offence under para. 334 (a); the prosecution has presented to the court a statement of facts in accordance with ss. 723-724 of the Code .

I have found that the facts support the guilty plea. I have received a s. 721 presentence report. I have received s. 722.2 community-impact statements. [ 14 ] At this stage, subsection 720(1) of the Code fixes the court with a mandatory jurisdiction to conduct sentencing proceedings and “to determine the appropriate sentence to be imposed.” [ 15 ] However, if I were to refer this matter to restorative justice as comprehended in the program authorization, I would be obligated under para. 717(4)(

a) of the Code to dismiss the charge were I to be satisfied at some point, on a balance of probabilities, “that the person has totally complied with the terms and conditions of the alternative measures.” [ 16 ] These provisions are in conflict: one would require that court to impose a sentence; the other, dismiss the charge. The court cannot do both. [ 17 ] The conflict is created by the program authorization.

In my view, this places in question the validity of the program authorization—at least to the extent that it allows for post-conviction/pre-sentencing judicial referrals to restorative justice. [ 18 ] Accordingly, I am adjourning this case for the additional reason that I wish to hear from counsel on the validity of the program authorization. [ 19 ] I wish to point out that neither the defence nor the prosecution has challenged the authorization.

This is being raised by the court, sua sponte . [ 20 ] Counsel have suggested very appropriately that the court ought to hear from the provincial department of justice on this issue. I agree, as it was the minister who signed off on the authorisation. Mr. Gorman has agreed very helpfully to contact counsel for the minister. [ 21 ] Ordered that this matter be adjourned to 4 September 2018 1:30 p.m. Briefs by 24 August 2018. Ordered accordingly. JPC