Date: 20020123
Docket: CAC 172534
NOVA SCOTIA COURT OF APPEAL
Cite as: R. v. G.J.L., 2002 NSCA 14
Glube, C.J.N.S.; Roscoe and Hamilton, JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
- and -
G. J. L. and J. P. M. (Young Offenders)
Respondents
__________________________________________________________________
REASONS FOR JUDGMENT
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Counsel: Laurie Halfpenny MacQuarrie for the Appellant
Ronald A. Lacey for the Respondent (G.J.L.)
Jill A. Fram for the Respondent (J.P.M.)
Appeal Heard: January 23, 2002
Judgment Delivered: January 28, 2002
THE COURT: Leave to appeal is granted and the appeal is dismissed as per reasons for judgment of Roscoe, J.A.; Glube, C.J.N.S. and Hamilton, J., concurring.
ROSCOE, J.A.:
[1] The Crown seeks leave to appeal, and if granted, appeals from dispositions of 18 months probation with conditions including community service, imposed on the respondents, pursuant to the Young Offenders Act, by Judge Frances Potts on May 30, 2001. The respondents, first time offenders aged 16 and 17, pleaded guilty to charges of robbery (s. 344) and wearing a face mask (s.351(2)), arising out of a robbery of a sandwich shop.
[2] The Crown contends that the sentences inadequately reflect the objectives of denunciation and deterrence, and that they are inadequate having regard to the nature of the offences and the circumstances of the respondents.
[3] The predisposition reports (pdr) indicated that the respondents were high school students, each living at home with their parents at the time of the offences. Prior to the offences, they had each been having serious conflict with their parents, skipping school and using illegal drugs and alcohol. Mr. L.’s pdr is, as noted by Judge Potts, somewhat worse than Mr. M.’s, mainly because of his poor attitude towards his drug use and apparent lack of remorse for the charges.
[4] Before delivering her disposition decision, Judge Potts questioned Mr. L. and sought input from his parents respecting the prospects of his compliance with the terms of a probation order. In the oral decision, the sentencing judge expressed concern about sentencing parity given that Mr. L. was clearly in need of more controls on his behaviour than Mr. M. The conclusion reached in this respect was expressed as follows:
.... both Mr. M and Mr. L. ought to be dealt with by a period of probation with conditions.
I am satisfied in the circumstances, Mr. L., that the conditions of your probation ought to be more restrictive than the conditions of Mr. M.’s probation since you have done little or nothing to attempt to turn your life around in the last several months.
Further, I am going to require as part of your probation order, Mr. L., that you report back to me every couple of months so that I might monitor your progress. I am going to entrust you to the care of your parents, having been assured by them this morning that they will report you if there is a failure to comply with the conditions of your probation. And you might as well know going in, Mr. L., that if you fail to comply with the conditions of your probation and you come back before me and are convicted of failure to comply with the Youth Court disposition, you might as well come with your bags packed. Because maybe your parents are willing, I do not think they are, but maybe your parents are willing to put up with your attitude and your behaviour but I am not and the public is not . . .
[5] Judge Potts continued by emphasizing to the young offenders the importance of abiding by the probation order, attending school, refraining from the use of alcohol and drugs and following the rules of their parents. The probation orders contained numerous conditions, including curfews and community service. Mr. L. was also ordered to appear for a review by Judge Potts in August, 2001.
[6] The sentencing judge was obviously persuaded that the best disposition was one that offered protection to the public through rehabilitation, and that there was more hope for rehabilitation of the respondents if they were able to continue living at home and attending school under strict terms. The Crown argues that the sentencing judge erred in principle by focusing too much on parity and not emphasizing protection of the public through deterrence and denunciation. Reference is made to numerous YOA decisions where appellate courts have either confirmed or imposed custodial sentences for similar offences, including:
‒ R. v. B. (T.C.), [1990] N.S.J. No. 153 (C.A.) - 3 months custody confirmed;
‒ R. v. J. (K.S.), [1987] N.S.J. No. 191 (C.A.) - 18 months custody reduced to 7 months;
‒ R. v. B.H., [1992] B.C.J. No. 1936 (C.A.) - 5 months custody reduced to 3 months;
‒ R. v . E.P.K., [1997] P.E.I.J. No. 96 (C.A.) - 12 months custody reduced to time served, 3 months; and
‒ R. v. P.B.G., [1997] A.J. No. 212 (C.A.) - 12 months probation varied to 2 months intermittent custody.
[7] The respondents in their submissions emphasize the fact that they have no prior record and refer to cases where probation has been deemed an appropriate disposition for robbery, including:
‒ R. v. K.D.R., [1999] M.J. No. 275 (C.A.) - 3 months custody varied to 18 months probation;
‒ R. v. M.M., [1999] M.J. No. 136 (C.A.) - 9 months custody varied to 2 years probation, and
‒ R. v. J.T.S., [1990] M.J. No. 137 (C.A.) - 2 years probation upheld.
[8] The applicable standard of review of the dispositions is, as recently stated by Justice Oland in R. v. Longaphy, [2000] N.S.J. No. 376 (C.A.) at § 20:
[20] A sentence imposed by a trial judge is entitled to considerable deference from an appellate court. A sentence should only be varied if the appellate court is satisfied that the sentence under review is “clearly unreasonable”: R. v. Shropshire (1995), 102 C.C.C. (3d) 193 (S.C.C.) at pp. 209‑210. Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence if the sentence is “demonstrably unfit”: R. v. M.(C.A.) (1996), 105 C.C.C. (3d) 327 (S.C.C.) at p. 374. The Supreme Court of Canada reiterated this standard of appellate review in reviewing a conditional sentence in R. v. Proulx (2000), 140 C.C.C. (3d) 449, [2000] 1 S.C.R. 61 at § 123‑126.
[9] Furthermore, as noted by Justice Oland at § 30, older cases which predate the 1996 amendments to the sentencing provisions of the Criminal Code are not as persuasive as precedents, since they were decided before the sentencing principles mandated by s. 718.2(d) and (e) that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders.
[10] In R. v. M.(C.A.), supra, Chief Justice Lamer described the reason for the deferential standard of review on sentence appeals, which is particularly germane in this case:
[91] This deferential standard of review has profound functional justifications. As Iacobucci J. explained in Shropshire, at para. 46, where the sentencing judge has had the benefit of presiding over the trial of the offender, he or she will have had the comparative advantage of having seen and heard the witnesses to the crime. But in the absence of a full trial, where the offender has pleaded guilty to an offence and the sentencing judge has only enjoyed the benefit of oral and written sentencing submissions (as was the case in both Shropshire and this instance), the argument in favour of deference remains compelling. A sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community. The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly.
[emphasis added]
[11] In this case the sentencing judge used the advantage of her frontline position by questioning the respondents and their parents, explicitly addressing with them her concerns respecting compliance with probation conditions, and personally conveying the stern warning regarding noncompliance. In crafting the disposition, she obviously considered the seriousness of the charges, the respondents’ recent behaviour and attitudes, that they had no previous record and supportive parents, the provisions of s. 3(1) of the Young Offenders Act, and the need for stringent controls on the respondents for the protection of society.
[12] After considering the record and the submissions of counsel, we are unanimously of the opinion that Judge Potts committed no error in principle and that the dispositions imposed are fit in the circumstances. Accordingly, this court should not intervene. While we grant leave to appeal, we dismiss the appeal.
Roscoe, J.A.
Concurred in:
Glube, C.J.N.S.
Hamilton, J.A.