R. v. Brown, 2012 NSSC 306

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Brown, 2012 NSSC 306 Date: 20120801 Docket: Cr. Am. 391524 Registry: Amherst Between: Her Majesty the Queen Appellant v. Michael Dow Brown Respondent LIBRARY HEADING Judge : The Honourable Justice A. David MacAdam Heard: August 1, 2012, in Amherst, Nova Scotia Final Written Submissions: June 22, 2012 Written Decision: August 20, 2012 Subject: Appeal; criminal law; sentencing

Summary: The offender was convicted of assault pursuant to s. 266 of the Criminal Code . The offence was committed while he was incarcerated, serving a one-year sentence for making child pornography, pursuant to s. 163.1(2) . He was sentenced to pay a fine of $200.00 and a victim surcharge of 15 per cent. The Crown appealed the sentence. Issue: Was the sentence a fit and proper one? Result: The sentencing judge did not commit reversable error by finding that the offender had no previous record of violence; in his characterization of the offence as a "low end" assault; or in his conclusion that the fact that the offence occurred in a correctional

facility was not, in the circumstances, a material distinction. There was no basis upon which to find that the trial judge erred in assessing the purpose and principles of sentencing. The sentence could not be considered an unfit one. Appeal dismissed. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: R. v. Brown, 2012 NSSC 306 Date: 20120801 Docket: Cr. Am. 391524 Registry: Amherst Between: Her Majesty the Queen Appellant v. Michael Dow Brown Respondent Judge: The Honourable Justice A.

David MacAdam Heard: August 1, 2012, in Amherst, Nova Scotia Final Written Submissions: June 22, 2012 Written Decision: August 20, 2012

Counsel: Bruce C. Baxter, CA,CAE, for the appellant, the Crown Joel E. Pink, Q.C., for the respondent By the Court : [ 1 ] On April 23, 2012, Michael Dow Brown pled guilty to the charge that he, on or about the 31st day of January 2012, at or near Amherst, Nova Scotia, did commit an assault on James McLeod contrary to

section 266 of the Criminal Code . Following submissions by counsel, he was sentenced to a fine of $200.00 and a victim surcharge of 15 percent. The Crown appeals the sentence. [ 2 ] The offence occurred while the accused was incarcerated. Mr. Brown had a dispute with a fellow inmate concerning the possession of a television remote control. Apparently James McLeod, the victim of this offence, had the remote control, and Brown wanted it.

McLeod refused and Brown then got up, grabbed McLeod by the neck, and began digging his fingernails into the skin of McLeod's neck and choking him. [ 3 ] At the time of this offence Mr. Brown was serving a one year sentence for the offence of "making child pornography", contrary to

section 163.1(2) of the Criminal Code , for which a minimum sentence of one year is prescribed. [ 4 ] The Crown's minimum sentence recommendation on the present charge was for 30 days consecutive to the sentence he was then serving, while the defence suggested a fine of between $100.00 and $150.00, to be paid forthwith. In his decision, the sentencing judge stated: The facts would suggest that Mr. Brown had a desire to use a remote which apparently was not being used, and Mr. McLeod, in whose possession it was, refused to provide it to him, seemingly for no good reason.

One can see how this would likely lead to a disagreement. It ought not to have varied into violence. Mr. Brown ought not to have applied force to Mr. McLeod. However, it’s a low end assault. Mr. Mcleod is not without some level of responsibility, not enough to justify a defence to Mr. Brown, but nevertheless in my view it does colour the way in which the court sees matters. If this was an assault where Mr. Brown simply sought out Mr.

McLeod for no apparent good reason and assaulted him, and had a record, I think I would be inclined to the crown’s view on sentence, but in this particular case I think a fine is an appropriate way to deal with this matter. It’s consistent with a dispute of this nature occurring outside of a correctional facility, and quite frankly I don’t see, on these facts, the fact that these two individuals were in a correctional facility changes things in any material way. The law [ 5 ]

Section 266 of the Criminal Code provides that a person who commits an assault may be guilty of an indictable offence or an offence punishable on

summary conviction. The Crown elected to proceed by way of

summary conviction. [ 6 ] Subsection 787(1) provides: Unless otherwise provided by law, everyone who is convicted of an offence punishable on

summary conviction is liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both. [ 7 ] Subsection 813(

b) provides that the Attorney General or his agent may appeal against the sentence passed on a defendant. The powers of this court on appeal of a

summary conviction sentence are prescribed by s. 822(6) and are as follows:

Where an appeal is taken under subsection (4) against sentence, the appeal court shall, unless the sentence is one fixed by law, considerthe fitness of the sentence appealed against and may, on such evidence, if any, as it thinks fit to require or receive, by order, (

a) dismiss the appeal, or (

b) vary the sentence within the limits prescribed by law for the offence of which the defendant was convicted, and in making any order under paragraph (b), the appeal court may take into account any time spent in custody by the defendant as aresult of the offence. [8] The fundamental purpose of sentencing is outlined in

section 718 of the Criminal Code, and is as follows: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance 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; (

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 and to the community. Standard of Review [9] Counsel are in agreement on the standard of review applicable on this appeal. [10] Both written submissions reference the decision of the Supreme Court of Canada in R. v. Shropshire, (SCC),[1995] 4 S.C.R. 227. Iacobucci J., for a unanimous court, stated at pages 249-250: ...An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought tohave been made.

The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of havingseen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentenceshould only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearlyunreasonable. I would adopt the approach taken by the Nova Scotia Court of Appeal in the cases of R. v. Pepin (1990), (NS CA), 98N.S.R. (2d) 238, and R. v. Muise (1994), 1994 NSCA 198 , 94 C.C.C. (3d) 119.

In Pepin, at p. 251, it was held that:

... in considering whether a sentence should be altered, the test is not whether we would have imposed a different sentence; we mustdetermine if the sentencing judge applied wrong principles or [if] the sentence is clearly or manifestly excessive. Further, in Muise it was held at pp. 123-124 that: In considering the fitness of a sentence imposed by a trial judge, this court has consistently held that it will not interfere unless thesentence imposed is clearly excessive or inadequate.... ... The law on sentence appeals is not complex.

If a sentence imposed is not clearly excessive or inadequate it is a fit sentence assuming thetrial judge applied the correct principles and considered all relevant facts.... My view is premised on the reality that sentencing is not anexact science; it is anything but. It is the exercise of judgment taking into consideration relevant legal principles, the circumstances of theoffence and the offender.

The most that can be expected of a sentencing judge is to arrive at a sentence that is within an acceptable range.In my opinion, that is the true basis upon which Courts of Appeal review sentences when the only issue is whether the sentence isinadequate or excessive. [11] In view of the fact that Mr. Brown pled guilty, and therefore there were no witnesses who testified to the facts, the sentencingjudge would have relied on the representations of counsel. The standard of review as outlined by Iacobucci J. is nevertheless applicablein the present circumstances. [12] In R. v.

M(C.A.), [1996] S.C.R. 500, Lamer C.J., on behalf of the court, after referencing Shropshire, supra., stated: As my learned colleague noted, this standard of review traces part of its lineage to the jurisprudence of British Columbia Court ofAppeal. As Bull J.A. described the nature of a trial judge’s sentencing discretion in R. v.

Gourgon (1981), (BC CA), 58C.C.C. (2d) 193 at p. 197: ...the matter is clearly one of discretion and unless patently wrong, or wrong principles applied, or correct principles applied erroneously,or proper factors ignored or overstressed, an appellate Court should be careful not to interfere with the exercise of that discretion of a trialJudge. Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court ofappeal should only intervene to vary a sentence imposed at a trial if the sentence is demonstrably unfit.

Parliament explicitly vestedsentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code. [13] However, this deferential standard of review is dependent on the absence of an error in principle, a failure to consider a relevantfactor or an over emphasis of appropriate factors. In R. v. Partridge, 2005 NSCA 159, Bateman J.A., in outlining the standard of reviewof a sentencing decision, observed at paras. 9 - 10: In R. v.

Longaphy (J.F.) (2000), 189 N.S.R. 92d) 102 at par. 20 (C.A.), Oland, J.A. summarized the standard of review, which calls for ahigh level of deference to sentencing judges: A sentence imposed by a trial judge is entitled to considerable deference from an appellate court. A sentence should only be varied if theappellate court is satisfied that the sentence under review is "clearly unreasonable": R. v. Shropshire (1995), (SCC), 102C.C.C. (3d) 193 (S.C.C.) at pp. 209-210.

Absent an error in principle, failure to consider a relevant factor, or an overemphasis of theappropriate factors, a court of appeal should only intervene to vary a sentence if the sentence is "demonstrably unfit": R. v. M.(C.A.)(1996), (SCC), 105 C.C.C. (3d) 327 (S.C.C.) at p. 374. The Supreme Court of Canada reiterated this standard ofappellate review in reviewing a conditional sentence in R. v. Proulx (2000), 2000 SCC 5 , 140 C.C.C. (3d) 449, [2000] 1 S.C.R.61 at [paragraph] 123-126.

Key to the defence, however, is the absence of error in principle. Where there is error the court’s right to intervene is not limited tosentences which are found to be “demonstrably unfit”.... [14] The standard of review and degree of deference to be shown to decisions of sentencing judges was restated, with similar effect,by LeBel J., for the majority, in R. v. L.M., 2008 SCC 31, at para 14: In its past decisions, this Court has established that appellate courts must show great deference in reviewing decisions of trial judgeswhere appeals against sentence are concerned.

An appellate court may not vary a sentence simply because it would have ordered adifferent one. The court must be "convinced it is not fit", that is, "that ... the sentence [is] clearly unreasonable" (R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46, quoted in R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, at para.15). This Court also made the following comment in R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 90: ... absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal shouldonly intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Analysis [15] The respondent asserts that while the offence under s. 163.1(2) was his first offence, he "has had no offences of violentbehaviour." The Crown takes exception to this.

Referencing his pornography offence, the Crown’s submission continues: The Respondent (sic) says that it is an error in principle to suggest that the Appellant’s (sic) prior record was either not for violence orunrelated.

Rather, his prior record was for creating and/or possessing for the purpose of distribution, images of violence against children.The present offence is an escalation of previous behaviour, not a departure from it. [16] The sentencing judge obviously preferred the perspective of the respondent in finding that "he has no previous record ofviolence." In my view there was no error in principle by the sentencing judge in so concluding. [17] The Crown also takes exception to the sentencing judge's characterization of the assault as a "low end assault".

The Crownsubmission continues: A push, a shove, or a single light slap might be a low end assault. Digging one’s fingernails into another’s neck and choking them is of adistinctly different and higher category. The assault went on long enough that a third party intervened. On the reasonable person test, thiswas a higher end common assault. [18] There is no basis for disturbing the sentencing judge's conclusion about the nature of the assault.

Although it was obviouslymade on the basis of the representations of counsel as to the factual circumstances, in reaching his conclusion he was exercising thediscretion vested in him as the sentencing judge. [19] The third error as alleged by the Crown, relates to the sentencing judge’s comment that the fact that the offender and the victimwere incarcerated in a correctional facility did not change things in any material way. The Crown submits: Again, with respect, the Appellant strongly disagrees. The Respondent was not in the same position as an ordinary civilian in hislivingroom.

He was incarcerated for a serious breach of the law. Again, on a reasonable person test, anyone who is incarcerated isexpected, as part of the sentencing regime, to learn respect for the laws governing all of us....

[20] Also referenced by the Crown are the Correctional Facilities Regulations, N.S. Reg. 191/89, under the Court Houses andLockup Houses Act, R.S.N.S., 1989, c. 109. [21] An assault is unlawful whether committed inside or outside of a correctional facility.

Excepting if it had been an assault of acorrections officer, in the circumstances found by the sentencing judge, there was no error in principle by the sentencing judge inequating the offence to one committed outside the confines of a correctional facility. [22] The Crown also suggests that there was a failure to consider a number of relevant factors under s. 718. The Crown says there isan absence of denunciation, because the fine was one that would (in the Crown’s submission) be levied for the lowest level of a speedingoffence contrary to the Motor Vehicle Act.

The Crown further suggests there is a lack of deterrence, both specific and general, and a riskthat the penalty will be met with derision. Counsel notes that the offender is already separated from society in respect to s. 718(c). Thereis also, it is argued, a failure to address rehabilitation, and no order for reparation. The Crown continues: Tied in with any argument regarding denunciation, deterrence and rehabilitation is one regarding the promotion of a sense ofresponsibility in offenders, and an acknowledgment of harm done to victims and to the community.

Again, it seems unlikely that theequivalent of an administrative penalty will promote generally a sense of responsibility in offenders regarding institutional assault. Thevictim was injured and community standards were violated. Inherent in the incarceration process is the teaching of respect for the lawand standards of behaviour. Here, the complainant and the witnesses co-operated in the legal process and gave statements.

The messagesent back to them by this penalty is, perhaps, that the whole thing wasn't worth bothering about. [23] The appellant references cases involving institutional assault offences but acknowledges they involve more serious assaultsthan occurred in this instance. [24] The Crown submits that the sentence was manifestly unfit and should be varied accordingly.

The respondent says the sentencewas not inadequate and that the sentencing judge, "...considered the appropriate principles and purposes of sentencing". [25] Having regard to the circumstances of this offence, its description as "low end assault" and the lack of a prior record ofviolence, I am not satisfied that the sentence imposed by the sentencing judge failed to take into consideration the purposes of sentencingas outlined in

section 718. [26] In oral submission, respondent counsel noted that the respondent had completed his period of incarceration on the s. 163.1(2)offence, and submitted it would be unjust to require him to return to jail to serve time on the assault offence. Counsel referenced anumber of decisions, including R. v. R.A.R., 2000 SCC 8; R. v. R.N.S., 2000 SCC 7; R. v. Fitzgerald, (1985) (NS CA),72 N.S.R. (2d) 176 (N.S.S.C. App. Div.); R. v. C.S.P., 2005 NSCA 159; R. v. Sinclair, (1982) (NS CA), 55 N.S.R.(2d) 541 (N.S.S.C. App. Div.); R. v. Veysey, 2006 NBCA 55; and R. v. Shalley, 2005 MBCA 150; R. v.

Mitchell (1981), 29 NFLD. AndP.E.I.R. 125; R. v. Cormier (1986), (NB CA), 70 N.B.R. (2d) 107 (N.B.C.A.); R. v. Winter, 1989 Carswell Sask 612. [27] In R. v. Fitzgerald, supra., at para. 15, Matthews J. cited former Chief Justice MacKeigan in R. v. Bartkow (1978), (NS CA), 24 N.S.R. (2d) 518 at p. 524: We must always be disinclined to send a man back to jail to serve the remainder of a longer term substituted on appeal unless thatdisinclination is overridden by the need to deter others by a much greater sentence. See for example, Regina v.

Hinch and Salanski, (BC CA), [1968] 3 C.C.C. 39 (B.C.C.A.), per Norris, J.A., at p. 46, and Regina v. Weber (1973), (BCCA), 9 C.C.C. (2d) 49 (B.C.C.A.), per Robertson, J.A., at p. 50. [28] To similar effect, Cooper J., in R. v. Sinclair, supra., at para. 10 stated: We would be reluctant to make a person who has served his time return to jail unless it were clear that the Crown’s appeal had beenprocessed as expeditiously as possible and that the sentence was so inordinately low that justice compels recommitment in the public

interest. [29] The reluctance, in the authorities, to return an offender who had completed his incarceration, prior to the hearing of an appeal toincrease the sentence, was noted by Macdonald J., for the majority, in R. v. Mitchell, supra., at para. 27: The general theme that can be extracted from most of the cases I have examined is an obvious hesitancy on the part of the courts to senda man back to jail after he has served his sentence unless to do so is necessary to prevent a miscarriage of justice.

That, in my opinion, isnot the case here. [30] On the other hand, offenders have been returned to prison, following successful sentence appeals, even where by the time of theappeal hearing the initial sentence had been served. Also referenced by respondent counsel was R. v. Oliver, (NWTSC), [1993] N.W.T.R. 277 (N.W.T.S.C.), where Vertes J. set aside intermittent sentences imposed by the sentencing judge and replacedthem with consecutive prison sentences, providing, however, that the offender was to receive credit for the days served on theintermittent sentences against the prison sentences.

At para. 42, Vertes J. observed: I am cognizant of the principle that courts should be reluctant to reincarcerate an offender after he has served his initial sentence. Suchreincarceration works an additional hardship. But, the courts will send someone back to jail if the sentence imposed at trial wasinadequate or fails to address the relevant principles: R. v. Yew, (NWT CA), [1991] N.W.T.R. 396 (C.A.); R. v.Cheng (1991), 50 O.A.C. 374. [31] The Crown noted that these were instances where the appeal of sentence related to a sentence the offender had completedserving.

In this instance, the appeal is unrelated to the offence and the sentence that Mr. Brown had served. [32] I agree with the Crown’s submission in principal. Mr. Brown’s sentence was to pay a fine. If, in these circumstances, theinterests of justice mandated a prison term for this offence, there is no jurisprudential basis for not now imposing such a sentence. [33] Defence counsel, in the alternative, proposed a conditional sentence with house arrest, if the court decides to allow the appealand impose a prison sentence. Counsel referenced his efforts at rehabilitation as well as Mr.

Brown’s observance of the terms of hisprobation following his release from prison. [34] In view of my conclusion on this appeal, it is unnecessary to consider whether, in the event of a sentence of imprisonment, aconditional sentence, with house arrest, would have been appropriate. Conclusion [35] There was no error in principle, failure to consider relevant factors, or over emphasis of appropriate factors, such that this courtshould intervene in the sentence imposed, absent a determination that it was "demonstrably unfit".

As to whether the sentence was"demonstrably unfit" it is only necessary to consider whether the sentence was within an acceptable range. It is not a determination as towhether this court would have imposed the same sentence on Mr. Brown. In my view it cannot be said the sentence was demonstrablyunfit or outside the acceptable range for sentences of this offence, in the circumstances of the offender, and of the offence. Relief [36] Appeal dismissed

MacAdam, J.