R. v. Barrons, 2017 NSSC 368

SUPREME COURT OF Nova Scotia Citation: R. v. Barrons , 2017 NSSC 368 Date: 2017 08 08 Docket: Hfx No. 440381 Registry: Halifax Between: Her Majesty the Queen v. Charles Edward John Barrons DECISION: Constitutional Challenge Restriction on Publication: S. 486 Judge: The Honourable Justice Joshua M. Arnold Heard: June 26, 2017, in Halifax, Nova Scotia Written Reasons: May 1, 2018 Counsel: Christine Driscoll, for the Crown Stanley MacDonald, Q.C., Jennifer Penman, for the Defence By the Court: [ 1 ] Charles Edward John Barrons was originally charged by indictment with the following counts: 1.

That he on or about the 12th day of September, 2014 at, or near Halifax, in the County of Halifax in the Province of Nova Scotia, did unlawfully break and enter a place, to wit.: a residence of B.L. situated at […], Halifax, Nova Scotia, and did commit therein the indictable offence of assault contrary to Section 348(1) (

b) of the Criminal Code . 2. and further that he at the same time and place aforesaid, did unlawfully and willfully damage property of B.L. and did thereby commit mischief, contrary to Section 430(4) of the Criminal Code . 3. and further that he at the same time and place aforesaid, did unlawfully assault Matthew William Stewart Shackell, contrary to

Section 266 of the Criminal Code . 4. and further that he at the same time and place aforesaid, did unlawfully assault B.L., contrary to

Section 266 of the Criminal Code . 5. and further that he at the same time and place aforesaid, did unlawfully utter a threat to Matthew William Stewart Shackell to cause bodily harm or death to the said Matthew William Stewart Shackell, contrary to

Section 264.1(1) (

a) of the Criminal Code . 6. and further that he at the same time and place aforesaid, did unlawfully commit a sexual assault on B.L., contrary to

Section 271 of the Criminal Code . [ 2 ] Midway through his judge-alone trial, Mr. Barrons tendered a guilty plea to the following charge: 1. That he on or about the 12th day of September, 2014 at, or near Halifax, in the County of Halifax in the Province of Nova Scotia, did unlawfully break and enter a place, to wit.: a residence of B.L. situated at […], Halifax, Nova Scotia, and did commit therein the indictable offence of assault on Matthew Shackell, contrary to Section 348(1) (

b) of the Criminal Code . [ 3 ] The Crown accepted this guilty plea and the trial proceeded no further. [ 4 ] The Crown and defence provided the court with an Agreed Statement of Facts at the time of Mr. Barrons ’ guilty plea. This agreement states :

On September 11, 2014, Charlie Barrons, Matthew Shackell and B.L. were at Cheers bar in Halifax. Though they saw each other at thebar, Mr. Barrons did not have any contact with either Mr. Shackell or B.L. At some point, Mr. Shackell and B.L. left the bar and went toB.L.’s apartment. Mr. Barrons did not know that they had left together. At approximately 1:00 AM on September 12, 2014, Mr. Barronswalked to B.L.’s apartment, and knocked on her door. At that point, he did not know that Mr. Shackell was in the apartment. As Mr. Barrons knocked on the apartment door, he heard Mr. Shackell and B.L. inside.

At that point, Mr. Barrons became very upsetand angry. He then broke the door of the apartment as depicted in the photographs, and entered. He then proceeded to the bedroomdoor, where Mr. Shackell and B.L. were located. They attempted to stop Mr. Barrons from coming into the bedroom, but he was able togain entry by force. At this time, Mr. Barrons called B.L. “a fucking whore” and was hollering “are you fucking kidding me?” As Mr. Barrons came through the bedroom door, Mr. Shackell and Mr. Barrons grabbed each other and there was a scuffle. During thescuffle Mr.

Shackell’s back hit the closet door with enough force to crack the door. During this altercation B.L.’s arm and face wereaccidentally struck. After this struggle, Mr. Shackell left the apartment. Mr. Barrons was in the bedroom with B.L. and yelled to her “did you fuck him?” They went to the bathtub and Mr. Barrons turned on the water. After a short time, B.L. left the bathroom and came in contact withPatricia Murray. They went into Ms. Murray’s bedroom, where they called the police. Mr. Barrons entered the bedroom and put hisarm on B.L.’s shoulder and arm and asked if he could talk to her. B.L. and Ms.

Murray talked calmly to Mr. Barrons hoping he wouldleave, which he did. The police arrived soon after, and Mr. Barrons was arrested. [5] Trial exhibit one, photographs of damage to the apartment, and trial exhibit two, Facebook messages, were entered as exhibitsat the sentencing hearing. [6] The Crown argued that Mr. Barrons should be sentenced to a period of custody in a Federal institution in the range of twoyears followed by three years’ probation. Mr. Barrons argued that a suspended sentence followed by probation would be the propersentence in these circumstances. In R. v.

Barrons, 2017 NSSC 216, I imposed a three-year suspended sentence with strict conditions onMr. Barrons. [7] Because break and enter into a dwelling house and committing an indictable offence carries a maximum sentence of life inprison and therefore removes the possibility of conditional sentence for Mr. Barrons, and because our Court of Appeal has set abenchmark of three years in prison for break and enter offences, Mr. Barrons made an application to have s. 742.1(

c) declaredunconstitutional. He submitted that the prohibition on conditional sentences for offences that have a maximum period of imprisonmentof fourteen years or life violated ss. 7 and 12 of the Canadian Charter of Rights and Freedoms. In correspondence dated August 8, 2017,I provided counsel with my bottom-line decision dismissing Mr. Barrons’ application. These are my written reasons. Unavailability of Conditional Sentence [8]

Section 742.1(

c) of the Criminal Code states: 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, forthe purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community,subject to the conditions imposed under

section 742.3, if … (

c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life… [9]

Section 348 of the Criminal Code of Canada states, in part: 348

(1) Every one who … (

b) breaks and enters a place and commits an indictable offence therein, or … is guilty (

d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life… Range of Sentence [10] In R. v. Zong, (1986), (NS CA), 72 N.S.R. (2d) 432, 1986 CarswellNS 193 (SCAD), the court set abenchmark of three years in custody for the crime of break and enter, “from which a trial judge should move as the circumstances in thejudgment of the trial judge warrant” (para. 7). So, while a benchmark was set, the ability for a sentencing judge to exercise discretionwas recognized. [11] The Court of Appeal revisited the benchmark in R. v.

Bursey, (NS CA), [1991] 104 N.S.R. (2d) 94, 1991CarswellNS 145 (C.A.) and in upholding a suspended sentence for a break and enter offence stated: 13. We must not only keep the foregoing in mind in considering the principles laid down by Grady, but we must also remember that inconsidering the fitness of the sentence, we are not to consider it improper merely because we feel we might have imposed a differentsentence.

Apart from misdirection or nondirection on the principles of sentencing, a sentence should only be varied if we are satisfiedthat it is clearly excessive or inadequate in relation to the offence proven or the record of the accused: R. v. Cormier (1974), 1974

1577 (NS CA), 9 N.S.R. (2d) 687. 14. We accept that in cases of break and enter, three years imprisonment is indeed a benchmark but all cases must be dealt with on anindividual basis. There is no similarity at all between the facts before us and those in Zong. 15. Applying the relevant principles, we see that an experienced trial judge has reviewed in his decision the relevant circumstances of theoffender and the offence. He has concluded that in these somewhat unusual circumstances, the respondent should be given one morechance.

We are not able to say that Judge Kimball imposed a clearly inadequate sentence in relation to the offender and the offence. Properly administered, a suspended sentence can have substantial consequences. [12] Suspended sentences were also imposed for break and enter offences in the following cases: • R. v. Palmer (1976), (NS CA), 17 N.S.R. (2d) 236 (S.C.A.D.) - the accused was given a 12-monthsuspended sentence for breaking into an unoccupied cottage; • R. v.

Schrader (1991), (NS CA), 104 NSR (2d) 91 (C.A.) - the 20-year old repeat offender was given athree-year suspended sentence for attempted break and enter into a commercial premises; • R. v. Purdy 1993 NSCA 219, 1993 CarswellNS 597 – multiple mature accused broke into a residence knowing it wasoccupied and assaulted the occupant in the presence of his children. The accused were all under the influence of alcohol. All were giventwo-year suspended sentences with significant community service hours. The only issue considered by the Court of Appeal was anancillary order; • R. v.

Rudderham, 1983 CarswellNS 502 (S.C.A.D.) – 19-year old repeat offender who had spent two months on remandand had psychiatric and addiction issues given a two-year suspended sentence for a break and enter into a car dealership; and • R. v. Newell and Poteri (1983), (NS CA), 60 N.S.R. (2d) 33 (S.C.A.D.) – Newell was a 20-year old, firsttime offender with a strong prospect of rehabilitation who pleaded guilty to break and enters into five uninhabited cottages and was givena two-year suspended sentence.

Other decisions regarding the constitutionality of s. 742.1 [13] The issues that surround the constitutionality of s. 742.1(

c) of the Criminal Code were discussed in R v Sawh, 2016 ONSC7797, 2016 CarswellOnt 20905. In that case, Justice Garton conducted an analysis of the relevant law and held that s.742.1(

c) did notviolate ss. 7 or 12 of the Charter. [14] While Sawh is persuasive, but not binding, the ruling by Justice Garton was recently endorsed by the Court of Appeal in R vDeYoung, 2017 NSCA 13, 2017 CarswellNS 199, at para 26. In DeYoung, Farrar J.A., in denying leave to appeal, stated: [23] Perhaps more importantly, the proposed grounds of appeal do not raise an arguable issue. They are not necessary for thereasonable presentation of the appeal. They also do not assist Mr. DeYoung in arguing the appeal has sufficient merit to justify hisinterim release.

I will explain why I am of this view. [24] Parliament has the power to make policy decisions with respect to sentencing. This was recognized in R. v. Lloyd, 2016 SCC 13 45 Parliament has the power to make policy choices with respect to the imposition of punishment for criminal activities and thecrafting of sentences that it deems appropriate to balance the objectives of deterrence, denunciation, rehabilitation and protection ofsociety. Courts owe Parliament deference in a s. 12 analysis. As Borins Dist. Ct.

J. stated in an oft-approved passage: It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penaltieswhich may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct ascriminal and in determining proper punishment.

While the final judgment as to whether a punishment exceeds constitutional limits set bythe Charter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and thenonly in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for otheroffences as to outrage standards of decency. (R. v. Guiller (1985), (ON SC), 48 C.R. (3d) 226 (Ont.), at p. 238) [25] As Mr.

Scott points out in the Crown’s brief, in the few cases where the constitutionality of s. 742.1 has been challenged, thecourts have uniformly rejected the assertion. It has been recognized that Parliament never intended for conditional sentences to be anoption for violent or serious offences. In R. v. Perry, 2013 QCCA 212 (leave to appeal ref’d [2013] SCCA No. 126), theQuebec Court of Appeal affirmed that s. 742.1 simply removes the discretion to order but one of many available options for a sentencingjudge: [152] …section 742.1 Cr. C. constitutes merely one more limitation on the judge’s sentencing power.

One may lament this choice andfeel that Parliament is misguided. But that is not sufficient. The choice was a political one, and its appropriateness may not bequestioned by judges so long as it does not violate the offender’s constitutional rights, as is the case here. [26] More recently, in R. v. Sawh, 2016 ONSC 7797 (Ontario Superior Court of Justice), the defendant sought an orderdeclaring that s. 742.1(

c) was inconsistent with both ss. 7 and 12 of the Charter and that it was of no force and effect pursuant to s.52(1) of the Constitution Act, 1982. The trial judge did an extensive review of the law including the various amendments to s. 742.1overthe years and reached a similar conclusion as the Quebec Court of Appeal in Perry and found that s. 742.1 simply excluded specificoffences from the conditional sentence regime:

95 As earlier reviewed in these reasons, Parliament's ability to limit a judge's sentencing discretion is well-established in the case law:See Nasogaluak, at para. 45 and quoted in these reasons at para. 21. In Proulx, the court recognized that Parliament "could easily haveexcluded specific offences" from the conditional sentencing regime. That is all that Parliament has done here. (See also R. v.

Neary, 2016 SKQB 218 ¶19, 22 and 26). [27] In conclusion, I am not satisfied that the proposed amendments raise an arguable issue that s. 742.1 of the Criminal Code,which excludes s. 271 offences from a conditional sentence, is contrary to either ss. 7 or 12 of the Charter. [15] DeYoung was a sexual assault case, but Farrer J.A. did not limit his comments to s. 271 offences. The reasoning in DeYoungapplies broadly to the constitutional validity of s. 742.1(c). [16] Justice Farrer’s conclusion in DeYoung equally applies in this case, one that involves s. 348 of the Criminal Code.

For thereasons espoused in DeYoung, s. 742.1 of the Criminal Code, which excludes s. 348 offences from a conditional sentence, is not contraryto either s. 7 or s. 12 of the Charter. Arnold, J.