R. v. Foley, 2022 NSSC 47

SUPREME COURT OF Nova Scotia Citation: R. v. Foley , 2022 NSSC 47 Date: 20220222 Docket: Hfx , No. 508464 Registry: Halifax Between: Her Majesty the Queen Appellant v. Christopher Patrick Foley Respondent Decision

Summary Conviction Appeal of Sentence Judge: The Honourable Justice Christa M. Brothers Heard: January 20 and February 14, 22, 2022, in Halifax, Nova Scotia Additional Oral Submissions: February 22, 2022 Counsel: Alicia Kennedy, for the Appellant Jonathan T. Hughes, for the Respondent By the Court: Overview [ 1 ] On July 15, 2021, the Crown and the respondent, a self-represented accused, appeared at a contested sentencing hearing before Judge A. M. Simmons. Crown counsel sought a suspended sentence with conditions, followed by a probation period of 18 months.

The respondent was agreeable to the Crown’s recommendations other than the suspended sentence. He sought a conditional discharge instead. [ 2 ] The trial judge sentenced the respondent to a conditional discharge with a period of 18 months’ probation. The conditional discharge included the same conditions sought by the Crown, requiring him to complete community service work, and to abstain from consuming alcohol outside of his home.

He was also directed to attend for assessment and counselling in the areas of mental health, substance abuse, anger management, and “cultural sensitivity, if available.” [ 3 ] By way of Notice of

Summary Conviction Appeal dated September 23, 2021, the Crown appeals against sentence, seeking to overturn the conditional discharge. Background

[4] The respondent, Christopher Patrick Foley, was charged in an Information, sworn on September 30, 2020, that: On or about the 13th day of September, 2020, at or near Halifax, NS, did while being at large on his undertaking issued on the 23rd dayof July, 2020, and being bound to comply with a condition of said undertaking did fail without lawful excuse to comply with a conditionof said undertaking to wit: “You must not enter the areas of any public roadway or intersection in Halifax NS for the purpose ofpanhandling or soliciting someone in a motor vehicle” contrary to s. 145(4)(

a) of the Criminal Code. [5] The respondent was charged in a second Information, sworn on September 24, 2020, that: On or about the 14th day of September, 2020, at or near Halifax, NS, he not being in a dwelling house, did unlawfully cause adisturbance in or near a public place, to wit, situate at Quinpool Road, and Robie Street, Halifax, NS, by screaming, shouting, swearingor using obscene or insulting language, contrary to s. 175(1)(a)(

i) of the Criminal Code; And further that he at the same time and place aforesaid, while being at large on his undertaking issued on the 23rd day of July, 2020,and being bound to comply with a condition of said undertaking did fail without lawful excuse to comply with a condition of saidundertaking to wit: “You must not enter the areas of any public roadway or intersection in Halifax NS for the purpose of panhandling orsoliciting someone in a motor vehicle” contrary to s. 145(4)(

a) of the Criminal Code [6] The respondent pled guilty and a pre-sentence report was obtained. The facts underlying the guilty plea are as follows. [7] On July 23, 2020, the respondent was placed on a condition prohibiting him from entering any roadway to panhandle. Lessthan two months later, on September 13, 2020, he was found at the intersection of Quinpool Road and Robie Street approaching vehiclesasking for change, in breach of his undertaking. He came to the police officers’ attention because he was in possession of an allegedstolen bicycle at the time.

There was no suggestion that he had been consuming alcohol when the officers dealt with him. [8] The very next day, September 14, 2020, the respondent returned to the same intersection, again in violation of his conditions.A bystander had observed the respondent panhandling and called police. The bystander also saw the respondent chase two Asian women,while yelling, “Go back to China!” The women and the bystander were understandably upset. Upon arrival, the officer noted that therespondent was drinking from what appeared to be a beer can.

The officer observed signs of intoxication, including bloodshot, wateryeyes, the smell of alcohol on the respondent’s breath, and slightly slurred speech. [9] At the time of sentencing, the respondent had a prior criminal record. He had previously received a conditional discharge for atheft charge in 2000. After that, he had convictions in 2008, 2011, 2012, and 2013. He was previously convicted of causing a disturbancein 2012 and received 18 months probation. In 2013, he was convicted of a breach of probation, for which he received a 2-monthconditional sentence followed by 18 months’ probation.

The conviction in 2013 was his last until these most recent offences. Issues on Appeal [10] The appellant sets out the following separate, but interrelated, grounds of appeal: 1. The Trial Judge erred by sentencing the respondent to a conditional discharge pursuant to s. 730(1) of the Criminal Codewhen such a sentence, on the particular facts of the offence, was contrary to the public interest; 2. The Trial Judge erred by imposing a sentence that was manifestly inadequate having regard to all of the circumstances,together with the fundamental purpose and principles of sentencing; and 3.

The Trial Judge erred by imposing a sentence that was clearly unreasonable having regard to the principles enunciated in s.718.2(a)(

i) of the Criminal Code; and 4. Such other grounds that may arise and this Honourable Court may permit. [11] The appellant asks that the appeal be allowed and a sentence of 18 months’ probation be substituted for the conditionaldischarge imposed by the sentencing judge. [12] Simply put, the central issue is whether a conditional discharge with a significant term of probation is sufficient in this case, orwhether a suspended sentence with the same probation term is necessary to satisfy the objectives of sentencing, with particular attentionto denunciation and deterrence.

Standard of Review [13] The standard of review for sentencing is succinctly summarized in R v Friesen, 2020 SCC 9 as follows: [26] As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrablyunfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44). Errors in principleinclude an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor.

Theweighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight toanother, the trial judge exercises his or her discretion unreasonably” (R. v. McKnight (1999), (ONCA), 135 C.C.C.(3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49). Not every error in principle is material: an appellate court can onlyintervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44).

If an error inprinciple had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if thesentence is demonstrably unfit. [14] While

section 813(b)(ii) of the Criminal Code allows the Crown to appeal from sentence, deference is owed to the sentencingjudge’s decision.

[15] In R v KJC, 2021 NSCA 5, the Court of Appeal described the scope of appellate intervention in a sentence as “restricted” (para76). The same court explained in R v Espinosa-Ribadeneira, 2019 NSCA 7: [34] Sentencing involves the exercise of discretion by the sentencing judge. An appellate court should only interfere if the sentencewas demonstrably unfit or if it reflected an error in principle, the failure to consider a relevant factor, or the over-emphasis of theappropriate factors. An error of law or an error in principle will only justify appellate intervention if the error had an impact on thesentence.

An appellate court is not to interfere with a sentence simply because it would have weighed the relevant factors differently. See R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500 at ¶90; R. v. Nasogaluak, 2010 SCC 6 at ¶46; R. v. Lacasse, 2015 SCC64 at ¶43-44 and ¶49. [16] The sentencing judge is entitled to the same degree of deference whether sentencing follows a conviction at trial or a guiltyplea.

In R v McSween, 2002 NSSC 225, Leblanc J. wrote: [13] It is a valid question whether the deference prescribed in Shropshire, supra applies only to sentences where the trial judge hasheard evidence and made findings of credibility or whether it extends to situations where the accused has entered a plea of guilty. I amsatisfied that deference should be shown to the trial judge even when, as is the case here, he has not heard evidence or made findings ofcredibility.

I say this because the sentencing judge “possesses the unique qualifications of experience and judgment from having servedon the front lines of our criminal justice system”: R. v. M. (C.A.) (1996), (SCC), 105 C.C.C. (3d) 327 (S.C.C.) at para.91, per Lamer, C.J.C. Additionally, the sentencing judge usually presides in or near the community that has suffered the consequences ofthe offender’s crime. Determining an appropriate sentence is a delicate decision that should not be interfered with lightly.

The sentenceshould not be disturbed unless it was decided on erroneous principles or is manifestly inappropriate in the circumstances. [17] These principles must guide me in my decision on this appeal. Principles of Sentencing [18] I adopt the following helpful recitation of the principles of sentencing by Judge Derrick (as she then was) in R v Thompson,2017 NSPC 18: [27] The Supreme Court of Canada has described sentencing as “one of the most delicate stages” of our criminal justice process. (R. v.Lacasse, 2015 SCC 64, para. 1) It is a "profoundly subjective process" (R. v. Shropshire, (SCC), [1995] S.C.J.

No. 52,para. 46) which requires the careful balancing of "the societal goals of sentencing against the moral blameworthiness of the offender andthe circumstances of the offence ..." (R. v. C.A.M., (SCC), [1996] S.C.J. No 28, para. 91) An appropriate sentencecannot be determined in isolation. Regard must be had to all the circumstances of the offence and the offender. (R. v. Nasogaluak, 2010SCC 6 , [2010] S.C.J.

No. 6, para. 44) It is a "profoundly contextual" process in which the judge has broad discretion and mustbalance “all the relevant factors in order to meet the objectives being pursued in sentencing.” (R. v. L.M., 2008 SCC 31 , [2008]S.C.J. No. 31, para. 15; R. v. Lacasse, para. 1) [28]

Section 718 of the Criminal Code sets out the objectives a sentence must achieve: denunciation, deterrence – both specific andgeneral, separation from society where necessary, rehabilitation of the offender, reparations by the offender, and the promotion of a senseof responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [29] Assessing moral culpability is a fundamental aspect of determining the appropriate sentence: a sentence must be proportionate tothe gravity of the offence and the degree of responsibility of the offender. (section 718.1, Criminal Code) Proportionality is “closely tiedto the objective of denunciation”, promotes justice for victims, and seeks to ensure public confidence in the justice system.

The principleof proportionality, …ensures that a sentence does not exceed what is appropriate, given the blameworthiness of the offender. In this sense, the principleserves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction isone that reflects both perspectives on proportionality and does not elevate one at the expense of the other. (R. v. Ipeelee, 2012 SCC 13, [2012] S.C.J.

No. 13, para. 37) [30] The principle of restraint operates in the sentencing analysis so that what is imposed is “a just and appropriate punishment, andnothing more.” ((R. v. M. (C.A.), (SCC), [1996] S.C.J. No. 28, para. 80) [19] It is this “profoundly subjective process” that I must review to determine whether the learned trial judge imposed a sentencethat was demonstrably unfit or that reflected an error of law or an error in principle. As I will explain, I am not satisfied that any errorwas made.

Was the imposition of a discharge contrary to the public interest? [20] Section 730(1) of the Criminal Code allows a sentencing judge to grant a conditional discharge instead of entering a convictionagainst an accused.

It states: Where an accused, other than a corporation, pleads guilty to or is found guilty of an offence, other than an offence for which a minimumpunishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which theaccused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead ofconvicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order

made under subsection 731(2). [21] Section 730(1) sets out two conditions precedent to the exercise of the jurisdiction to impose a conditional discharge: 1) thegranting of a discharge must be in the offender’s best interests; and 2) it must be not contrary to the public interest. The Crown arguesthat the sentencing judge erred when she concluded, in the circumstances of this case, that the second condition was met.

The Crown didnot appeal the judge’s finding that a conditional discharge was in the accused’s best interests, notwithstanding his criminal record. [22] The Crown submits that the sentencing judge erred in finding that a conditional discharge was not contrary to the publicinterest because: (1) conditional discharges should be granted “sparingly”, especially where an offender has received a prior discharge orhas a prior criminal record; and (2) the judge, when assessing whether a discharge was not contrary to the public interest, approachedthe question entirely from the perspective of the accused, and failed to properly consider the principles of denunciation and deterrence.The Crown says the judge focussed on his prospects for regaining employment and volunteer work, although there was no actualevidence of either before her. [23] For the proposition that conditional discharges should be granted sparingly, the Crown cited several Alberta cases, including: Rv MacFarlane, 1976 AltaSCAD 6 (SC AD); R v Hachem, 2018 ABQB 864; and R v Hemmaway, 2021 ABPC 246.

While this approachmight prevail in Alberta, it has not been adopted by courts in Nova Scotia. [24] In R v Sellars, 2013 NSCA 129, the appellant pled guilty to criminally obtaining monies from her employer’s health care plan.She sought a conditional discharge, which the trial judge rejected. Instead, the trial judge suspended the passing of sentencing and placedthe appellant on three years of probation, with a number of conditions.

The appellant appealed from the trial judge’s refusal to grant her adischarge on the basis that he applied the wrong test. [25] The main issue before the Court of Appeal was whether the trial judge erred in applying the test for a conditional discharge byasking whether a discharge was in the public interest and not whether a discharge was “not contrary to the public interest”.

In reviewingthe requirements for a conditional discharge, the Court of Appeal made no suggestion that the sentence should be granted sparingly: [21] The sentencing option of granting an offender an absolute or conditional discharge was introduced by Parliament in 1972 (S.C.1972, c.13) as s. 662.1. Forty years later, the substantive requirements are unchanged.

The authority to grant a discharge is now foundas s. 730(1) of the Criminal Code. … [22] The Crown acknowledges that the trial judge addressed the issue as to whether a discharge was in the public interest and notwhether a discharge was “not contrary to the public interest”. It argues that the appellant’s complaint is little more than a semanticquibble. It relies on R. v. Gill, 2011 BCCA 372 in support of its argument.

In the circumstances of this case, with respect, I disagree. [26] Beveridge JA held that the trial judge erred by asking whether a discharge was in the public interest: [27] A discharge does not have to be in the public interest. It is available so long as the offence is not punishable by fourteen years, orlife, it is in the best interests of the offender, and not contrary to the public interest.

The difference between requiring a positive impacton public interest and demonstrating the sentence would not be contrary to the public interest is well expressed by LeBlanc J. in R. v.D’Eon, 2011 NSSC 330 where he wrote: [25] If the Sentencing Judge did apply a test requiring that a conditional discharge be “in the public interest” rather than being “notcontrary to the public interest,” this would be the wrong test. There is a substantive difference between the two phrases; the correct “notcontrary” test simply means that a conditional discharge would not be deleterious.

It is not required to be have actual positive effect onthe public interest. [27] In addressing how to determine whether a discharge is “not contrary to the public interest”, Beveridge JA stated: [33] “Public interest” is not statutorily defined. In my opinion, it is not possible, nor even desirable, to try to arrive at an all-encompassing definition of the myriad factors that may impact the inquiry. There are helpful guides to be found in the appellatedecisions that followed the enactment of the discharge provisions. [34] For example, in R. v. Sanchez-Pino (1973), (ON CA), 11 C.C.C. (2d) 53, [1973] O.J.

No. 1903 (Q.L.),Arnup J.A., for the Court, wrote: 18 Obviously the

section is not confined to ”simple cases of possession of marijuana”. It is not confined to any class of offencesexcept to the extent I have noted. On the other hand, it is only common sense that the more serious the offence, the less likely it willappear that an absolute discharge, or even a conditional one, is “not contrary to public interest”.

In some cases, the trivial nature of theoffence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order thatwould not be made in the case of another offender. 19 To attempt more specific delineation would be unwise, and might serve to fetter what I conceive to be a wide, albeit judicial,discretion vested in the trial Court.

That Court must consider all of the circumstances of the accused, and the nature and circumstances ofthe offence, against the background of proper law enforcement in the community, and the general criteria that I have mentioned. [35] In R. v. Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450, the British Columbia Court of Appeal canvasseda number of authorities and set out a list of conclusions drawn from them. With respect to “public interest”, the Court wrote:

(6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does notpreclude the judicious use of the discharge provisions.

[36] More recently, in R.v. Elsharawy (1997), (NL CA), 119 C.C.C. (3d) 565, [1997] N.J. No. 249, GreenJ.A., for the Newfoundland Court of Appeal, commented: [3] …The second condition involves a consideration of the principle of general deterrence with attention being paid to the gravity ofthe offence, its incidence in the community, public attitudes towards it and public confidence in the effective enforcement of the criminallaw. See R. v. Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.) and R. v. Waters (1990), (SK KB), 54 C.C.C. (3d) 40 (Sask.

Q.B). [37] In my opinion, what factors are in play, and the weight to be put on them, in determining if a discharge would be “notcontrary” to the public interest, will vary depending on the circumstances of the offence and of the offender. [Emphasis added] [28] The proposition advanced by the Crown that a conditional discharge should be granted sparingly or only in some type ofexceptional circumstance is not borne out by the case law in other provinces, either.

For example, in R v Scheper, 1986 CarswellQue 257(CA), the Quebec Court of Appeal considered the point directly, writing: 7 In his submission on sentence, defence counsel had suggested an absolute discharge under s. 662.1(1) of the Criminal Code. Thetrial judge was of the view, however, that a discharge was an exceptional measure that was only available in exceptional cases: D'ailleurs, la libération est une mesure exceptionnelle applicable dans des cas exceptionnels dont ne fait pas

partie la présente cause. 8 With respect, we are all of the opinion that the trial judge adopted too narrow a test for the granting of a discharge. 9

Section 662.1(1) is not an exceptional measure. It is one of the sentencing provisions in the Criminal Code available to a sentencingjudge in appropriate cases.

Nor does it require exceptional circumstances, the judge having the discretion to grant a discharge as long asthe conditions mentioned in s. 662.1(1) are met. [29] In R v Sanchez-Pino, (ON CA), [1973] 2 OR 314 (Ont CA), discussed in Sellars, supra, the court declined toset any limitations on the imposition of discharges beyond those enumerated in the legislation. [30] During submissions, I asked whether the Crown was suggesting that an offender who commits a racially motivated offenceshould never receive a conditional discharge.

Crown counsel declined to speak in absolutes, arguing instead that in this case, with thisoffender, a conditional discharge was not appropriate. [31] While racially motivated offences are abhorrent, the availability of a conditional discharge does not depend on the nature of theoffence committed. It would be an error in principle to find otherwise. In R v Daley, 1997 Carswell NS 326 (SC), Justice Moir set outseveral important principles with respect to conditional discharges.

In that case, a provincial court judge refused to accept a jointrecommendation of a conditional discharge for an offender who committed a spousal assault. The judge said this type of offence calledout for denunciation and deterrence and that a conditional discharge was not adequate. Justice Moir disagreed, stating: 12 For those reasons, it is right to say that general deterrence must be emphasized "with offences such as this". If that was theProvincial Court Judge's reasoning I could not and would not interfere. However, that is not what she said.

As stated, I take her to haveheld that the public interest precludes conditional discharges in all cases of spousal assault. That, in my opinion, is an error in principle. 13 (My critique of the decision under appeal has nothing to do with its brevity, economy or speed. I am mindful of the remarks of theSupreme Court of Canada in R. v.

B. (R.H.) (1994), (SCC), 89 C.C.C. (3d) 193 (S.C.C.) at p. 200 and I am mindful ofthe workload, specialized knowledge and efficiency of the Provincial Court in this province.) 14 Almost since Parliament established conditional and absolute discharges as an instrument for dealing with criminal conduct,appellate courts recognized that discharges are available in the right circumstances for serious criminal misconduct and are not restrictedto trivial cases or to strict liability offences where there was no real criminal intent.

Examples of those appellate decisions include R. v.Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450 (B.C. C.A.) and R. v. Sanchez-Pino (1973), (ONCA), 11 C.C.C. (2d) 53 (Ont. C.A.). 15

Section 736 of the Criminal Code holds out the possibility of a discharge so long as the accused is an individual, there is nominimum penalty and the maximum penalty is less than 14 years imprisonment. Those restrictions are broad enough to coververy serious offences including some which have special sociological implications. In providing for the prerequisite that the judgemust be satisfied a discharge is not contrary to the public interest, Parliament did not delegate to the judges authority to carveout entire offences or categories of offence.

In my opinion, each case must be assessed in the particular with much weight againsta discharge where, as here, the public interest emphasizes general deterrence. I refer to the sixth principle set out in Fallofield at p.455 of the C.C.C. text and to the first and second full paragraphs at p. 59 of the C.C.C. report of Sanchez-Pino. 16 To hold, as I take the Provincial Court Judge to have done, that a conditional discharge is always contrary to public interest in casesof spousal assault is, in my opinion, to decline a responsibility the elected branch of government has imposed upon the judiciary.

Forexample: some people come to court with unfair disadvantage due to race and culture or from a materialistic environment where thefrustrations of economic disadvantage lead to misconduct. The courts will look for opportunities to make the field more level. Topreclude discharges for entire categories of offence is to disavow an instrument that could be used judiciously to address otherimportant public interests. (Parenthetically, I am not suggesting that spousal assault is a particular problem of the poor or of anyculture.

In fact, we know that the problem is prevalent in all parts of society.) [Emphasis added] [32] In this case, the racially motivated nature of the s. 175 offence and the utterances made are reprehensible and have no place in

our society. But it does not follow that a conditional discharge is absolutely unavailable in the circumstances. [33] The Crown also maintains that conditional discharges are generally not in the public interest where an offender has received aconditional discharge in the past.

For this proposition, the Crown relies on R v Elsharawy, (NL CA), 1997CarswellNfld 191 (CA), where Justice Green noted that: [3] … The first condition presupposes that the offender is a person of good character, usually without previous conviction or discharge,that he does not require personal deterrence or rehabilitation and that a criminal conviction may have significant adverse repercussions.… [34] The Crown’s reliance on this particular statement is puzzling, since it refers to the first condition under s. 730(1) – that aconditional discharge is in the offender’s best interests – and, as I noted earlier, the Crown has not appealed from the sentencing judge’sconclusion that this condition was met. [35] The Crown also relies on Elsharawy for the proposition cited in Sellars, supra, that, in considering whether a discharge is notcontrary to the public interest, the sentencing judge is required to consider general deterrence and specifically the gravity of the offenceand its incidence in the community. [36] In R v Tan, 1974 CarswellBC 302 (CA), also relied on the Crown, the court considered whether it was appropriate for theoffender in that case to receive a second conditional discharge.

The Court concluded that it was not; having received “that veryextraordinary treatment” once already for a related offence, the offender should not be absolved from punishment a second time. In aconcurring judgment, McIntyre JA wrote: 25 I have read the reasons for judgment of my brother Branca in this matter and I am in general agreement with his disposition of theappeal. I would, however, like to add this short comment. In deciding whether to grant or withhold a discharge under the provisions ofthe Criminal Code, R.S.C. 1970, c.

C-34, s. 662.1 [en. 1972, c. 13, s. 57], the sentencing judge must consider both the interest of theaccused and that of the public. In the second consideration the question of whether the accused person has had a previousdischarge and the manner of his or her reaction to it is certainly both by logic and common sense a relevant factor to be knownand considered by the judge.

This information may, indeed must, be put before the judge so that he can discharge his task inconsidering the fundamental conditions under which a discharge may be given. [Emphasis added] [37] On the basis of these authorities, the Crown urges the court to accept that although it is possible for a conditional discharge tobe granted where an offender has received a prior discharge or has a criminal record, such occasions will be exceptional. [38] Again, no Nova Scotia cases were cited by the Crown for this proposition.

I would also note that in both Elsharawy and Tan,the offender had been granted the first conditional discharge not long before seeking a second. In the present case, the respondent’s mostrecent previous sentence related to an offence committed almost a decade ago. [39] I accept that a prior discharge or a criminal record is a relevant factor to be considered by a sentencing judge under s. 730(1),and that, in many cases, the presence of either will militate against granting a conditional discharge.

I am not prepared to state, however,that a conditional discharge will only be granted to an offender with a prior discharge or criminal record in “exceptional” cases. [40] The other argument raised by the Crown under this ground of appeal is that the trial judge, in determining whether a dischargewas not contrary to the public interest, approached the decision “entirely from the perspective of the accused” and that “there was noactual evidence before her.” [41] At the sentencing hearing, the respondent spoke to the sentencing judge about his addictions recovery, employment, andvolunteer ambitions.

The Crown raised no objection to his assertions. In the absence of such objections, it is open for a sentencing judgeto take the representations of counsel – or in this case, the self-represented offender – as factually accurate. In R v Pahl, 2016 BCCA234, the British Columbia Court of Appeal stated: [50] The statutory framework for resolving factual disputes at a sentencing hearing is contained in the following provisions ofthe Criminal Code.

The portions I have underlined are particularly relevant to this appeal: 723(1) Before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions withrespect to any facts relevant to the sentence to be imposed.

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

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

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

(5) Hearsay evidence is admissible at sentencing proceedings, but the court may, if the court considers it to be in the interests ofjustice, 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.

724(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedingsand any facts agreed on by the prosecutor and the offender.

(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 partywith respect to that fact.

(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 evidencewas adduced 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 before relyingon 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 previous convictionby the offender. [51] These provisions were enacted in 1995: S.C. 1995, c. 22, s. 6. Prior to that, the common-law framework for resolving factualdisputes at a sentencing hearing was set out in R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368. The 1995 amendments ofthe Criminal Code codified the Gardiner principles: R. v. Angelillo, 2006 SCC 55 at para. 21, [2006] 2 S.C.R. 728; R. v.

V.W., 2008ONCA 55 at para. 26, 229 C.C.C. (3d) 344. … [56] Sentencing judges routinely accept and act on information counsel provide to them through submissions. I agree with Mr. Pahl thatit would unduly burden the courts to require proof of every factual assertion counsel make at a sentencing hearing. However, it is notopen to a judge to accept as fact an assertion made by counsel that is disputed and unsupported by any admissible evidence. Putotherwise, a judge is entitled to accept a fact advanced solely through submissions only if that fact is non-contentious: R. v.

Asp, 2011BCCA 433 at para. 34, 278 C.C.C. (3d) 391; Cousins at 301. [Emphasis in original] [42] In this case, Crown counsel appearing before the sentencing judge did not dispute any of the facts asserted by the self-represented offender at the sentencing hearing. It was therefore open to the judge to accept them, which it appears she did. [43] So did the sentencing judge err when she concluded that a conditional discharge was not contrary to the public interest? I amnot satisfied that she did.

I will explain. [44] In seeking a suspended sentence, Crown counsel highlighted the need to consider the principles of denunciation, specific andgeneral deterrence, reparation, and rehabilitation. She noted that the racially motivated nature of one of the offences was a statutorilyaggravating factor, and that the public has an interest in denouncing crimes of that nature, particularly “given the rising anti-Asiansentiment that we’ve seen unfortunately in our society in the wake of COVID”.

The Crown argued that a conditional discharge wasinappropriate due to the respondent’s prior conditional discharge in 2000, and his criminal record, which she acknowledged was “shortand somewhat dated”. [45] In arguing for a conditional discharge, the respondent advised the court that, at the time of the offences, he had been under theinfluence of alcohol and drugs and that his mental health was not good. He said that he had struggled with drug and alcohol addictionsfor about half of his life, and that at the time of these offences, he was panhandling to support his addictions.

He stated that, at the timeof the hearing, he had been sober for 7 months. [46] When asked about the racist comments he made to the two women, the respondent acknowledged the seriousness of hisbehaviour. He told the court that he was not in the proper mental state when he uttered those words, and that, “It just wasn’t me.” Therespondent expressed remorse, and, when the possibility of writing a letter of apology to the two women was raised by the judge, hereacted enthusiastically, stating that it would be “awesome”.

The judge subsequently learned from Crown counsel, however, that thatoption was not available, as the women had not been identified. [47] The sentencing judge also had the benefit of a pre-sentence report dated July 7, 2021, which indicated that the respondent hasADHD, and suffers from depression and anxiety. He began to use alcohol at the age of 16, with his substance use becoming a problemapproximately 10 years ago.

He developed an addiction to cocaine and crack cocaine, and had a history of treatment with AddictionServices at the Nova Scotia Health Authority, including admissions in 2011 and 2013 to the detox facility in Dartmouth, followed bylong-term outpatient counseling. He spent two years at Alcare Place and was a regular participant in Alcoholics Anonymous. He mostrecently stayed at Alcare Place in April 2021. The report indicated that the respondent expressed responsibility for his actions, andacknowledges continuing struggles with alcohol and mental health issues.

The report states: Subject has expressed responsibility for his actions. Mr. Foley acknowledges his continuing struggles with alcohol and mental healthissues. Covid-19 restrictions have limited his in-person attendance at therapy sessions; however, the subject has maintained telephone

contacts with mental health therapists and admitted himself to a detox program in April 2021. The offender would be a suitable candidate for community supervision with a recommendation that he continue with addictions/mental health treatment with the Nova Scotia Health Authority. (Page 5) [ 48 ] Having heard from both parties, the sentencing judge began to recite her decision. As she set out the background facts, the respondent interjected with further information, and the following exchange took place: THE COURT: So you’re at a new address. Is this a better place where you are now? MR. FOLEY: Yes.

THE COURT : Okay. MR. FOLEY: New place, no drugs… THE COURT: Okay. MR. FOLEY: … no alcohol. Yeah, I’ve made some … I’ve made some very positive changes … THE COURT: Big changes, okay. MR. FOLEY: … .in my life. THE COURT : So that’s important. That’s one of the things that I need to take into account. Crown counsel is correct that I should consider principles of sentencing found in

Section 718 of the Criminal Code and thereafter including deterrence in particular, denunciation, and reparation as well, of course, as rehabilitation. Because if I accept Mr. Foley at this word, if he’s not drinking and addicted to drugs, he’s not panhandling, he’s not behaving inappropriately. He’s not yelling at members of the community, and he’s not saying hurtful things like he did to those two women on that day. He tells me that he’s a changed man, that he’s made some substantial improvements. He has changed his address.

He has dealt with … he’s got his alcohol and drug addictions under oath … under control right now. He’s got appointments. He’s got participation online in Seven Steps. He went to Alcare in April. He’s got an appointment with his worker on the 23 rd of July. [Emphasis added] [ 49 ] She continued: THE COURT: In terms of practical effect of the sentence that I’m going to impose is really kind of meaningless because both the Crown and the Defence are recommending to me a period of probation with conditions. The difference is whether or not I am satisfied that the discharge provisions are met here because Mr.

Foley makes an application for a discharge. The first question is whether or not it is in Mr. Foley’s best interests that I grant him a discharge. In this day and age, it seems to me that registering a conviction has the potential of a greater impact than maybe it did years ago because everyone is so security conscious. There are so many places in which we need to have security for residences, if Mr. Foley is still able to work again. He’s still a young man.

If you’re able to get back to work, there’s still a lot of years left. … He does have a criminal record, but it is very dated, and I think that has … that really is significant. The most recent conviction is December of 2013. That offence occurred November of 2012. That was … there are other convictions for failure to comply with probation, causing a disturbance, assaulting a peace officer, theft-under, and a discharge … sorry, a discharge was granted in that first instance. So I’m satisfied it is in the best interests. I don’t think the Crown takes issue with that.

The question is whether it is not contrary to the public interest. And the only factor which gives me pause is the terrible statement that you made to those women. That’s … MR. FOLEY: It was a … THE COURT : The Crown made a very strong argument in that regard. And had you been sober when you made that comment? And that was a thinking-you who made a comment like that? I wouldn’t give this another thought. MR. FOLEY: You’re right. THE COURT : But you’re telling me that it wasn’t you. MR. FOLEY: It wasn’t.

THE COURT : That you’re not the kind of … that you don’t … when you’re sober that you don’t say things like that, that you don’t act like that.

MR. FOLEY: Exactly. THE COURT : But you recognize how serious it was, and that you would send a letter or apology were we able to have the … MR. FOLEY: Or to do … THE COURT: .. contact information for those people. So if those two women were in the courtroom and they heard everything that I heard, I think that’s really part of the test that I have to apply, as well as the gentlemen who reported the matter who was disturbed by what he saw. They can’t know because they’re not here all of the information that has been provided to me.

The gap is really quite substantial in the criminal record, and that has to have some meaning . I see from the reports from previous probation officers that probation has been successful in the past. But in the past seven or eight months, Mr. Foley has already got his life back on track himself, and it seems like most things are already in place. But battling a lifelong addiction requires support so a further period of probation makes perfect sense to me. So it’s a close call because the Crown is right, 718.2 does make a statutorily aggravating feature, the comments you made.

But given the explanation that’s been made today and given that they were made when you were in a very bad place, given the passage of time since the criminal record and the fact that things seem to be moving in a positive direction, I am persuaded to conclude that the test is met and I will grant you a conditional discharge, Mr. Foley. I will place you on probation for a period of 18 months commencing today.

Every probation officer has conditions requiring you to keep the peace and be of good behaviour; attend Court when you’re required to; and notify the Court or your probation officer in particular of any changes in your name, address, occupation, or employment. [Emphasis added] [ 50 ] As noted in Sellars , supra , the relevant factors and the weight to be put on them in determining if a discharge would be “not contrary” to the public interest, will vary depending on the circumstances of the offence and of the offender.

In R v KJC , supra , the Court of Appeal noted that “[a] discharge will be deleterious to the public interest if it fails to satisfy the objectives being pursued in sentencing” (para 84). [ 51 ] In sentencing the respondent to a conditional discharge, the judge recognized the need to consider and balance the competing principles of deterrence and denunciation, reparation, and rehabilitation. She acknowledged and considered that one of the offences was racially motivated, which is an aggravating factor under s. 718.2 . She noted, however, that there were important mitigating factors as well.

Since the offences, the respondent had sought treatment for his addictions. He participated in a residential treatment program through Alcare and attended, and continued to attend meetings organized by the 7 Step Society. At the time of the hearing, the respondent had maintained 7 months of sobriety. He expressed remorse and acknowledged the harm caused by his egregious comments to the two women. He told the court that he would never have made such comments if he had not been under the influence of drugs and alcohol. The respondent was eager for an opportunity to apologize for his behaviour.

In addition, the judge placed significant weight on the almost 10-year gap between the respondent’s last offences and the offences for which he was being sentenced. According to the sentencing judge, it appeared that “Mr. Foley is living now the kind of pro-social life we want him living always.” [ 52 ] In my view, it was not contrary to the public interest to grant the respondent a conditional discharge instead of a suspended sentence.

Although the sentencing judge noted that it was a “close call”, she clearly concluded that a conditional discharge was a proportionate sentence that would give the respondent the best opportunity to continue to live a pro-social life, which serves “the overall goal of sentencing in s. 718 , … to protect society and keep it safe”: R v Espinosa-Ribadeneira , para 69. Rehabilitation of the offender, where achievable, is key to public protection. [ 53 ] But what about deterrence and denunciation?

The Crown strenuously argues that in considering whether a conditional discharge was not contrary to the public interest, the judge failed to properly consider denunciation and deterrence. In other words, the Crown submits that the need for denunciation and deterrence in this case makes a conditional discharge inappropriate. I disagree. [ 54 ] As previously noted, there is no exception carved out under s. 730(1) for racially motivated offences, notwithstanding the obvious need to denounce such heinous acts.

Moreover, if Parliament intended for courts to give primary consideration to the objectives of denunciation and deterrence in every case involving racially motivated offences, it could easily have drafted the sentencing provisions of the Criminal Code to achieve that objective, just as it has done for certain other offences ( ss. 718.01 - 718.04 ). Instead, Parliament directs courts to treat evidence that an offence is racially motivated as an aggravating factor. It is to be considered alongside all the other factors, aggravating and mitigating, in determining an appropriate sentence.

The sentencing judge must carefully balance the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence to arrive at a proportionate sentence, which is what the judge did in this case. [ 55 ] The presence of one or more statutorily aggravating factors does not mean that a conditional discharge is inappropriate. In R v JFC , 2006 NSSC 33 , Cacchione J, affirmed the sentencing judge’s decision to grant a conditional discharge for assault with a weapon and knowingly uttering a threat to cause death.

The offender struck his 8-year-old child 10 or 12 times with a broom handle, leaving bruises. At the time of the offences, evidence that an offender, in committing the offence, abused his or her child was an aggravating factor under s. 718.2 .

The offender had no criminal record, was gainfully employed, and there was evidence that he would lose his job if a conviction was entered against him. [ 56 ] On appeal, the Crown argued that the sentencing judge erred in not imposing a custodial sentence because the case involved an offence of violence committed by a person in a position of trust with a weapon against a vulnerable victim which resulted in injuries. It argued that the sentence imposed was not sufficient to deter other like-minded individuals.

The Crown’s position was that the sentencing judge, in granting the conditional discharge, overemphasized the effect of a conviction on the offender and did not sufficiently emphasize deterrence and denunciation. It further argued that while the granting of a discharge was in the best interests of the offender, it was

contrary to the public interest.

Finally, the Crown submitted that the sentencing judge erred in finding that deterrence and denunciation were addressed by the offender’s attendance in court on numerous occasions, the search of his residence, the suspension of his visitation rights, and the attendant publicity generated by the case and the financial costs to him of having to pay a security firm to supervise his visits. [ 57 ] In dismissing the appeal, Cacchione J stated: 33 The words "contrary to the public interest" contained in s. 730(1) of the Criminal Code do not equate solely with the deterrence of the offender or of others.

The public interest concept is broad enough to encompass a factor such as the impact of having a family put on social assistance as the result of the offender losing his employment because of a criminal conviction and the effect of that on the social fabric of that family. 34 I cannot find, in the circumstances of this case that the sentence imposed was clearly unreasonable, or demonstrably unfit.

The sentencing judge, a resident of the community where this offence took place, carefully balanced the societal goals of sentencing against the moral blameworthiness of the Respondent and the circumstances of the offence. He was mindful of the needs and current conditions of and in that community. He was fully aware of the effects that a loss of employment would have, not only on the Respondent but more importantly on the Respondent's family and its social fabric. 35 In the present case the learned sentencing judge was aware that the deterrence of others is a factor to consider in the granting of a discharge.

He chose not to overly emphasize deterrence in the present case. He referred to the Respondent's appearance in court, the attendant publicity of the trial and the embarrassment in the community as sufficient deterrence in the circumstances of this case. The judge considered factors such as general deterrence, reformation and rehabilitation of the offender. He chose not to sacrifice this offender on the altar of general deterrence because of the impact that such a sentence would have on the fabric of the family.

He was cognizant that the Respondent was a good father and a good provider and that the entering of a criminal conviction would deprive the Respondent of his employment which in turn would deprive his family of support payments and by implication cause the family to have to rely on financial support from the community.

He concluded that the consequences of entering a conviction against the Respondent were disproportionate to the gravity of the offence and would further victimize the child and his family. 36 It has not been established that such a sentence was manifestly unfit in the circumstances of this offence and this offender, nor has it been shown that the sentencing judge erred in his application of the sentencing principles.

The sentencing judge considered all the principles contained in ss. 718 - 718.2 of the Criminal Code and exercised his discretion having regard to those principles and after having considered all the circumstances of the offence and the offender. [Emphasis added] [ 58 ] A conditional discharge is not necessarily incompatible with denunciation and deterrence. In R c Auclair , 2006 QCCQ 7093 , the court noted: 24 The Court is not of opinion that general deterrence and denunciation can only be accomplished by the imposition of a criminal record.

Processing the matter through the criminal justice system is in itself a strong signal that violence is not accepted.

A well-informed observer knows that a discharge does not condone the offence but is a measured response to an offence, committed by a particular offender, in a particular set of circumstances. 25 It must not be forgotten that, similarly to the suspended sentence, a discharge may be revoked and a conviction entered if the offender is convicted of any new offence, including a breach of the probation order. [Emphasis added] [ 59 ] In R v Thompson , supra, Judge Derrick considered whether to grant a conditional discharge where the offender was convicted of misleading police by making an intentionally false statement that protracted the investigation of a homicide.

The offender had no criminal record and was of previous good character. Judge Derrick was satisfied that the a conditional discharge was in the offender’s best interest, as it was not necessary to enter a conviction against her to deter or rehabilitate her. With respect to the second part of the test, the Crown argued that a conditional discharge was contrary to the public interest because it was necessary to emphasize denunciation and general deterrence. Judge Derrick stated: [34] A conditional discharge - the sentence Mr. Craggs advocates is appropriate for Ms.

Thompson - while at the more lenient end of the sentencing spectrum, still imposes burdens and obligations on the offender in the form of conditions, much in the same way that probation does. The most significant difference is that once the conditions of a conditional discharge have been satisfied and the term of the discharge is completed, no conviction is recorded against the offender. Only a discharge achieves this result: any other sentence leaves an offender with a record of conviction. … [68] The gravity of an offence does not preclude a conditional discharge.

Parliament has not decreed that a conditional discharge is incompatible with the objectives of general deterrence and denunciation: it is only offences with a mandatory minimum sentence or punishable by imprisonment for fourteen years or life that are statutorily excluded from the discharge provisions. [69] In R. v.

Fallofield , the British Columbia Court of Appeal framed its decision to grant a discharge in these terms: “I find it difficult to believe that the deterrence of others will be in any way diminished by the failure to render a conviction against this accused.” ( paras. 21 and 22 ) [70] I find I have reached that same conclusion. I am not satisfied that Ms. Thompson’s actions, examined carefully, require the imposition of a conditional sentence and a criminal record. There is no question that Ms. Thompson failed in her moral and legal

obligations but I am unable to see how a conditional discharge is contrary to the public interest in the unique circumstances of this case. [71] I am satisfied that there will be no deleterious effect to the public interest by imposing a conditional discharge in this case. Setting aside legitimate skepticism about the effectiveness of general deterrence in the administration of criminal justice, I find it is not contrary to the public interest in general deterrence to grant Ms. Thompson a discharge.

General deterrence supposes public awareness of the offending conduct and a calculation based on that awareness that crime does not pay. I see nothing about the circumstances of this case that makes it a particularly suitable candidate for emphasizing general deterrence through the imposition of a conditional sentence on Ms. Thompson. This would accord general deterrence too prominent a role in the sentencing calculus and marginalize other important sentencing considerations such as restraint and rehabilitation.

As I have noted, sentencing must be tailored to the individual offender and the facts of her offence. [72] If Ms. Thompson’s actions are or become publicly known – and this goes directly to the issue of general deterrence and public confidence in the effective enforcement of the criminal law – the public would be aware of the context in which her offence occurred. They would know that she has paid a heavy price.

She has had to bear the stress and shame of being charged with a criminal offence and subjected to the criminal justice process over a long period of time, a public process that is freighted with uncertainty. Imposing a conditional discharge does not diminish or dilute any of these consequences. [73] Parliament has established that one of the fundamental purposes of sentencing is to contribute to respect for the law by imposing just sanctions. This is reflected in the Criminal Code sentencing provisions.

Unduly harsh or oppressive sentences that fail to acknowledge the unique circumstances and facts of a case will not be seen as fair or rational. This is relevant to the issue of maintaining public confidence in the justice system. ( Lacasse , paragraph 3 ) [Emphasis added] To similar effect, see R v Hayes , 2018 NSPC 74 ; R v Donovan , 2013 NSPC 83 ; and R v Matheson , 2007 NSPC 43 . [ 60 ] The sentencing judge in this case recognized that denunciation and deterrence were relevant considerations, and that the racially motivated nature of one of the offences was an aggravating factor.

However, after considering all of the circumstances, she concluded that imposing the sentence sought by the Crown would accord general deterrence too prominent a role and marginalize other important sentencing considerations such as restraint and rehabilitation. She determined that it was not contrary to the public interest to enter a discharge rather than a conviction against the respondent, and I find no error in that conclusion.

The sentence was manifestly inadequate, considering the principles of sentencing [ 61 ] The Crown’s argument under this ground of appeal is succinctly summarized at para 26 of its brief: 26. The Respondent is a recidivist: he had prior convictions for causing a disturbance and breaching court orders. His last conviction for breaching a probation order resulted in a conditional sentence order followed by yet another lengthy probationary term. He had previously been sentenced to 18 months probation for causing a disturbance.

Despite this, and in the absence of any significant mitigating factors, the sentencing Judge imposed a sentence that was far more lenient than his precedents. She elevated the gap principle above all others in her consideration of the appropriate sentence. Little – if any – weight was given to the facts, which indicated that the Respondent had completely disregarded his Court-imposed conditions in a deliberate manner. The sentence imposed failed to address the specific deterrence required to address the Respondent’s offending.

By excusing the Respondent’s behaviour due to alcohol use, she unfairly reduced his moral culpability. [ 62 ] If a period of time has elapsed between convictions, this will often be taken into account at sentencing. In R v Smith , 2006 NSCA 95 , the Court of Appeal discussed the “gap principle” as follows: [37] The trial judge here gave no consideration to the fact that considerable time had passed since the appellant had been convicted of any offence, other than driving offences.

Clayton Ruby, Sentencing (Sixth Edition), (Toronto, Butterworths, 2001), sets out the reasoning behind the “gap principle,” and provided illustrations from the case law: 8.78 Since both sentencing and crime are human endeavours, it is natural for the courts to give credit to someone who has made an honest effort to avoid conflict with the criminal law. In the nature of things, an effort such as this will often not be completely successful, but if a substantial period of time passes without convictions, this is often a matter which will be taken into consideration.

As put by Cross: “Assuming that it is not merely the outcome of lucky non-detection, the trouble-free period shows in these cases that the offender is not a professional criminal, and therefore the public needs less protection from him.” It shows that there is some hope of rehabilitation. . . . . 8.80 In Kennedy , the accused was convicted of manslaughter and sentenced to two years less one day. The Crown appealed, bringing forward a record involving jail sentences over a period of years for such crimes as assault, breaking and entering, escape custody, mischief, wilful damage and another breaking and entering.

All criminal involvement had ceased for a five-year period prior to the manslaughter conviction.

In these circumstances the Court of Appeal determined that: “after having gone five years without involvement in the law, the past record should not be a too material factor in determining an appropriate sentence”. 8.81 In Hodson , the court had to evaluate a lengthy record, but noted that, though there had been more recent convictions, there had earlier been an eight-year period without convictions and indeed “some intervals in which he is known to have got an honest living.” The court regarded this interval as “a new start” and was disposed to show leniency.

Accordingly a term of five years was reduced to 12 months’ imprisonment. This case was approved by the Ontario Court of Appeal in Harrell , where an offender with a record for similar offences was sentenced to five years’ imprisonment. There was a gap of 11 years where he was not convicted of “any serious offence” followed by further convictions for breaking and entering and uttering two forged cheques — uttering being the very offence of which he had been convicted and for which he now stood sentenced. The court, noting this 11-year gap which did not immediately precede the

conviction at bar, came to the conclusion that this “long interval, free from serious convictions is entitled to due weight” and noting otherfactors as well, reduced the sentence to three years. In Re Morand and Simpson, the offender, Simpson, had a nine-year gap between thepresent offence and his only previous offence. In the result the three-year sentence for breaking and entering was reduced to two yearsless one day.

Similarly in Murray, the court noted the offender “deserves credit” for a one-and-a-half-year period free from crimefollowing his marriage, a period which had been interrupted only by the crime under consideration. A “change in lifestyle” over a seven-year period is properly reflected in the sentence imposed. 8.82 Not all periods of abstention from crime operate in mitigation of the penalty that might otherwise be imposed . . . 8.83 For the gap principle to come into effect the period under consideration need not be totally crime free.

A nine-year period marredonly by minor offences, such as causing a disturbance and driving a motor vehicle while disqualified, merited considerationin Graveline, Bezaire and Cassidy. The court concluded ‘it would appear that since then he has been making some effort to stay out oftrouble or at least he has not been in as much trouble since then.” Accordingly a one-year period was reduced, for this reason amongothers, to six months.

Similarly in Harnett, the court gave effect, upon a charge of possession of stolen cooper wire, to the gap of 14years marred only by offences of disorderly conduct that were attributable to an alcohol problem, but dishonesty had not been a part ofthem.

In the result a sentence of two years with three years’ probation was reduced to one year followed by two years’probation.” (Emphasis added) [63] In R v Wolfe, 2015 SKPC 161, the court explained the “gap principle” this way: 11 The gap principle essentially states that when there is a substantial period of time that passes without any criminal convictions, theoffender can be inferred to have some potential of rehabilitation and to be amenable to deterrence, thus not to be a "professional" andhardened offender.

Therefore, a lesser sentence is required to protect the public than would be if there was no gap; the Court may turnthe page and disregard the stale previous record or minimize its impact on the sentencing decision, thus more or less treat theaccused as a first time offender. Logically, the gap principle only applies if the clean period in the record is not simply the result ofnon-detection but stands for a genuine effort of rehabilitation (see Clayton C.

Ruby, Sentencing, 8th ed (Markham: LexisNexis CanadaInc, 2012), at para 8:96). [Emphasis added] [64] As these authorities indicate, a gap in an individual’s criminal record is a factor that can be taken into account in fashioning afit and appropriate sentence. [65] In this case, the offender was last sentenced in 2013 in relation to an offence committed in November 2012. This amounts to analmost decade long gap. The judge was certainly entitled to rely on this in her consideration of an appropriate sentence.

Crime-freeperiods as short as five years and as long as 14 years have been considered in case law as factors bearing on an appropriate sentence (seeR v Kennedy, (1972), (SK CA), 5 CCC (2d) 373 (Sask CA) and R v Klotz, 2015 SKCA 7). [66] In R v Oxford, 2010 NLCA 45, the court held that “[t]he gap principle is given effect even if the preceding period is not totallycrime free but is free from crime of the serious nature of the crime for which punishment is then being considered” (para 22). [67] The Crown argues that the respondent is a recidivist, and that specific deterrence is necessary by virtue of his previous criminalconvictions.

That specific deterrence, according to the Crown, will only be achieved by a suspended sentence. The sentencing judgeconcluded, however, after considering the totality of the respondent’s circumstances, including his history of addiction and therelationship between those addictions and his offences, his efforts at rehabilitation, and the almost 10 year gap in his criminal history,that it was more appropriate to treat him as akin to a first time offender.

It was clearly her view that specific deterrence, to the extent itwas required, could be adequately dealt with by way of conditional discharge. [68] Judges are often required to balance competing, if not somewhat antagonistic principles when crafting a fit and appropriatesentence. The Crown has not satisfied me that the sentencing judge erred in how she balanced those principles in this case. [69] As to the Crown’s argument that the sentencing judge “excused” the respondent’s behaviour due to alcohol use and unfairlyreduced his moral culpability, I will address that issue in the next section.

The sentence was clearly unreasonable, having regard to s. 718.2(a)(i) [70] It is an aggravating factor under s. 718(2)(a)(

i) of the Criminal Code when an offence is motivated by bias, prejudice, or hatredtowards a racialized group. The Crown’s position is that the trial judge did not adequately consider the aggravating nature of one of theoffences and that a conditional discharge is not a fit sentence in the circumstances of this case. It relies on R v Upson, 2001 NSCA 89, inwhich, according to the Crown, “our Court of Appeal upheld a 13-month jail sentence for one count of uttering threats to ‘members ofthe black race’”.

The Crown suggests the decision stands for the proposition that “crimes of this nature motivated by racial hatred mustbe adamantly deterred and … [the] sentence must reflect society’s abhorrence to such crimes”. With respect, that is not an accuratesummary of the decision. [71] In Upson, the offender was a 22 year-old-woman with six prior convictions, five of which were “racially related”. She was anavowed white supremacist, and acknowledged membership in the Ku Klux Klan, the Aryan Nation’s Church, and the Nationalist Partyof Canada.

She was charged and convicted of three indictable offences of uttering threats to: (1) destroy or damage the real property ofthe Victoria Road United Baptist Church; (2) cause bodily harm or death to Reverend Elias Mutale, and (3) to cause bodily harm ordeath to members of the black race. She was sentenced to 8 months’ imprisonment on each charge, to be served consecutively, for a totalof 24 months’ imprisonment. [72] The offender appealed her convictions and sentence. She argued that the trial judge erred in concluding that she hadcommitted three separate offences.

The Court of Appeal agreed, upholding only the conviction for the offence of uttering threats to causebodily harm or death to members of the black race. On the sentence appeal, the Court summarized the trial judge’s decision:

[55] Having found the appellant guilty of all three offences, the trial judge sentenced the appellant, on July 5, 2000, to eight months imprisonment on each charge. The sentences were ordered to be served consecutively, for a total sentence of 24 months. In imposing the sentence, the trial judge indicated that she took into account the fact that the appellant had been on remand. Counsel acknowledged that the appellant had been on remand for 80 days, which equates to a sentence of 160 days. [56] Further, in imposing the sentence which she did, the trial judge indicated that she took into account the following matters: (

i) The fact that the appellant had six prior convictions, five of which were racially related, and that the appellant was presently under probation pursuant to an Ontario proceeding where she had been found guilty of uttering threats; (ii) Her finding that the offences had been motivated by hatred based on race, and that pursuant to the provisions of s. 718.2 of the Code she was required to take that into account as an aggravating factor; (iii) The nature of the crimes and the effect which they had on Reverend Mutale; (iv) According to the pre-sentence report there was, in the words of the trial judge, “absolutely no remorse by the appellant for her actions.” The trial judge considered this lack of remorse as an aggravating factor.

I note, here, that it is clearly wrong at law for the trial judge to have considered lack of remorse as an aggravating factor; (

v) The fact that the appellant’s beliefs were so ingrained that there was no chance of rehabilitation. Because of this, the trial judge felt no need to emphasize specific deterrence nor rehabilitation; (vi) That crimes of this nature motivated by racial hatred must be adamantly deterred and that her sentence must reflect society’s abhorrence to such crimes. [57] It became apparent during the hearing of this appeal that the court had concerns with the appellant’s conviction for threatening to destroy or damage the church property.

In addition, the Crown had conceded that a conditional stay should be granted with respect to the charge of threatening Reverend Mutale. This left the possibility of only one conviction surviving the appeal. Counsel were asked to address the issue as to what this court should do with the sentence imposed by the trial judge if that were to be the result of the appeal. [Emphasis added] [ 73 ] The Court of Appeal noted that by the time its reasons for judgment were released, the appellant would have served over 13 months in prison.

Having considered the submissions of counsel, and the decision of the trial judge on sentencing, the court held that a fit sentence was time served. [ 74 ] Accordingly, it is inaccurate to state that the Court of Appeal in Upson upheld a sentence of 13 months for uttering threats to members of the black race, or to suggest that the court held that all offences motivated by racial hatred “must be adamantly deterred”, with sentences that “reflect society’s abhorrence to such crimes”. Denunciation and deterrence will always be relevant in sentencing for crimes motivated by racial hatred.

However, the trial judge in Upson was dealing with a specific and serious crime committed by an avowed and unrepentant white supremacist who had numerous prior convictions for racially motivated crimes and zero reasonable prospect of rehabilitation. In the circumstances of that case and that offender, the trial judge was clearly justified in concluding that her sentence, above all else, must reflect society’s abhorrence to such crimes. [ 75 ] The Crown relies much more heavily, however, on R v Feltmate , 2012 NSSC 319 . In Feltmate , the offender was a 51-year-old woman with no criminal record.

She expressed remorse. She was responsible for caring for her three grandchildren. She pled guilty to

summary charges of criminal harassment and assault. In a shopping mall, she approached a woman of Pakistani heritage who was wearing a head scarf. Ms. Feltmate was intoxicated. She touched the victim’s scarf, and asked why she was wearing a scarf on such a hot day. The victim briefly retreated. Ms. Feltmate then yelled at her, calling her “Iraqi bitch, whore, Muslim bitch”, before telling her to “go back to her own fucking country.” The offender forced the victim against the wall, “raising her hands, pushing a shopping cart around” (para 12).

She then assaulted a bystander who came to the victim’s aid, and accused him of being a “racist Canadian”. [ 76 ] Ms. Feltmate was sentenced to 60 days in jail, followed by 12 months’ probation. Justice Scanlan (as he then was) declined to permit her to serve her sentence in the community, even though she had no record, stating: [21] I am convinced the nature of these offences demands a clear pronouncement which focuses on denunciation and deterrence. In saying that, I take into account the guilty plea, Ms. Feltmate's age and her clean record.

I take into account her circumstances, as much I do the circumstances of the offence. I return to my earlier comment and refer to

Section 718 specifically. I repeat, the racial overtones in this case are extremely aggravating circumstances. I also take into account the suggestion that Ms. Feltmate was intoxicated at the time. That is more than a suggestion, the evidence is clear, Ms. Feltmate was intoxicated at the time. But that is no excuse. If we allowed people to go get drunk and do this type of thing, we would start down that slippery slope and it would be occurring on a more, and more, frequent basis. [ 77 ] The Crown submits that the facts in Feltmate are essentially on all fours with the present case.

The Crown’s brief states at para 31: When the Respondent’s sentence is contrasted with the sentence imposed in Feltmate , the problem is clear. A first-time offender with no record goes to jail for 60 days and then has to abide by a probationary term for 12 months after. The Respondent, who has a prior related criminal record, receives his second conditional discharge. Both told members of a different racialized group to go back to their countries while under the influence of alcohol.

The only differences are in the charges laid and the ability of the Crown to locate the victims so that a victim impact statement could be filed. A lack of victim impact statement alone does not absolve a sentencing judge from properly considering the seriousness of the offence and the aggravating nature of its circumstances. [ 78 ] With respect, the Feltmate decision is clearly far more distinguishable than the Crown suggests. Here, the respondent yelled at

two young women as they passed the spot where he was panhandling and told them to “go back to China”. In Feltmate , the defendant approached the victim on more than one occasion, touched her pashmina scarf, then engaged in a tirade of personal insults, calling the victim an “Iraqi bitch, whore, Muslim bitch”. She forced the victim against a wall and assaulted a second individual who attempted to intervene on the victim’s behalf. This was clearly a more prolonged and serious incident. That is not to minimize the impact of the respondent’s statement on the two young women.

However, the facts in Feltmate were significantly more egregious, and the offences were more serious than in the present case. [ 79 ] Justice Scanlan also had the benefit of a victim impact statement in Feltmate in which the victim said she had lost her confidence and no longer felt safe in her community. No such evidence was provided in this case. [ 80 ] It is true that both Ms. Feltmate and the respondent were intoxicated at the time of their offences. However, there was no evidence that Ms.

Feltmate suffered from alcohol or drug addiction, that she had sought help for her addictions, or that she had attempted or maintained a period of sobriety. The respondent, however, has battled drug and alcohol addiction for years. He was panhandling to support his addictions.

He has pursued treatment and, at the time of the sentencing hearing, had been sober for 7 months. [ 81 ] While R v Feltmate , supra , does consider and apply sentencing principles in relation to a racially motivated offence, the facts are simply too distinct to offer proper comparison. [ 82 ] To be clear, racially motivated crimes are always serious and aggravating. No one should be subjected to the treatment endured by the victims in Feltmate and in this case. However, each case must be considered on its own facts.

The Feltmate decision does not establish that the sentence in this case was “clearly unreasonable.” [ 83 ] The Crown argues that the sentencing judge failed to properly consider the seriousness of the respondent’s offences and that she was focussed entirely on the respondent’s rehabilitation. Paragraph 20 of the Crown’s brief states: The sentencing Judge’s analysis of the seriousness of the offence was restricted to considering the Respondent’s rather half-hearted apology and claim that his actions were solely attributable to alcohol consumption.

Her reasons demonstrate an absence of concern with the severity of the offences, or the prevalence of anti-Asian racism in the community. … [ 84 ] On the contrary, however, the judge emphasized the seriousness of the racially motivated offence during her exchanges with the respondent and in her decision. The following exchange is an example: THE COURT: I want you to understand one …the issue that is troubling me. This is the issue that the Crown attorney has enforced. You admitted in these facts that you said to two women who were crossing the road at the intersection … I think that… MR.

FOLEY: And yes, I was intoxicated. THE COURT: That was on September the 14 th . And you said something like to two Asian women, yelling, chasing after them yelling “Go back to China”. The Crown has put a lot of emphasis on that because the Criminal Code says if when you commit an offence you use … you do something with racial connotations, that that’s aggravating. It makes it worse. So I need to hear you address that because the Crown attorney put a lot of emphasis on that. MR. FOLEY: I wasn’t in the right state of mind. And at the present time that I had, you know, made those comments, it just wasn’t me.

It just wasn’t me. Now that I see the matter, and my clarity is coming back, ahh, I’m going on a month without my ADD medicine and I’m actually seeing the clear picture. You know, the clarity is starting to come back. THE COURT: Do you understand how serious it is that you uttered that… MR. FOLEY: It’s very serious to me, racial… THE COURT: …that terrible phrase to those women? MR. FOLEY: To make those racial slurs, it wasn’t… wasn’t…it wasn’t… THE COURT: You’re saying to me it… MR. FOLEY: It wasn’t me at the time. THE COURT: All right. MR. FOLEY: And that’s what alcohol and drugs can do to a person.

If you’re not in the right state of mind. [ 85 ] In her decision, the sentencing judge told the respondent that, in considering whether to grant a conditional discharge, “the only factor which gives me pause is the terrible statement you made to those women”. She went onto acknowledge that the respondent’s comments were statutorily aggravating, and said the decision on whether to grant a discharge was a “close call”. [ 86 ] It is clear that the judge was aware of the statutorily aggravating nature of the respondent’s statement to the two women.

The comments in her decision reflect the intricate and delicate balancing in which she was engaged, as well as the seriousness with which she considered the statutorily aggravating feature. I could not express and describe the role of the trial judge in sentencing better than Justice Hoskins, prior to his elevation to the Nova Scotia Supreme Court, in R v Delgado , 2017 NSPC 74 : [30] Sentencing is a diffi

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