C.A.C. No. 126996
NOVA SCOTIA COURT OF APPEAL
Clarke, C.J.N.S.; Jones and Pugsley, JJ.A.
Cite as: R. v. Harris, 1996 NSCA 208
BETWEEN:
HER MAJESTY THE QUEEN ) Denise C. Smith
) for the Appellant
Appellant )
- and - )
) Allan F. Nicholson
) for the Respondent
WENDY GAIL HARRIS )
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Respondent ) Appeal Heard:
) October 15, 1996
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) Judgment Delivered:
) October 15, 1996
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THE COURT: Appeal dismissed from sentence for offence contrary to s. 212(1)(j) of the Criminal Code, per oral reasons for judgment of Clarke, C.J.N.S.; Jones and Pugsley, JJ.A. concurring.
The reasons for judgment of the Court were delivered orally by:
CLARKE, C.J.N.S.:
The respondent pled guilty to living "partly on the avails of prostitution of MAB contrary to s. 212(1)(j) of the Criminal Code".
On March 6, 1996, Justice Cacchione suspended the passing of sentence for three years during which the respondent is subject to a probation order with conditions that include: (1) reporting to the adult probation officer, (2) abstaining from the use or possession of alcohol and drugs, (3) no contact with persons known to her to have criminal records unless such contacts occurred during the course of her volunteer work with the Elizabeth Fry Society or the Cape Breton Aids Coalition, (4) attendance as directed for treatment by a psychiatrist or psychologist, and (5) the performance of 150 hours of community service during the first two years of her term of probation.
Pursuant to s. 676(1)(d) of the Criminal Code, the Crown seeks leave to appeal on the grounds that the sentence inadequately reflects the element of deterrence and in addition, is inadequate in the circumstances.
The information before the Court indicated that the respondent had a troubled upbringing and in her maturing years was involved in an abusive relationship. For several years she operated an escort service in Sydney. She was thirty-nine years old at the time of her conviction and sentence. The trial judge described her as a first offender, operating a business that lacked her coercion of those associated with her and one where she did not rely on the prostitutes' earnings as her main source of income. He viewed the situation between the respondent and MAB to be similar to the third category discussed by the Alberta Court of Appeal in R. v. Foster (1984), 13 C.C.C. (3rd) 435 at
p. 441 where it is suggested that the lowest sentence is reserved for a relationship which "cannot be characterized as one of exploitation".
In his lengthy and considered reasons, Justice Cacchione said in part:
As with all cases, sentencing cases, each case must be assessed and dealt with on its own merits and circumstances. This is not a case in my view where MB was introduced into prostitution by the accused or kept there by the accused through fear or intimidation, nor is it a case where an extremely young woman was exploited or corrupted by the accused's actions. MB was not preyed upon, coerced or introduced into prostitution by the accused. She was not physically or sexually abused by the offender, in fact Ms. B's statement shows that she voluntarily entered into the business arrangement and received 50% of her net proceeds.
In cases such as this one the court must look for the presence of aggravating circumstances, apart from the mere living off the avails of prostitution. For example, corruption of an otherwise innocent young person, exploitation, physical or sexual abuse, threats, and forcible confinement are all, in my view, aggravating factors which would necessitate strongly deterrent sentences.
Is this case one where the public needs to be protected and the offender removed from society to achieve the purpose of protecting the public. Here I am satisfied that the accused's conduct in and of itself has not caused or threatened serious harm to another person. I am also satisfied that the accused has made great efforts in attempting to rehabilitate herself and therefore diminished the possibility or potential reoffending in the future. I am acutely mindful of the fact that in other cases involving persons charged with the same offence, that is living wholly or partly off the avails of prostitution, in the context of an escort service, those cases have been dealt with by noncustodial terms. ...
The trial judge proceeded to consider the same principles of sentencing which were discussed by this Court in the oft quoted R. v. Grady (1971), 5 N.S.R. (2d) 264.
He determined that unlike street prostitution and pimping, the public would not be protected by incarcerating the respondent. He concluded that in the circumstances of this offender imprisonment would not serve as a specific deterrent nor would the imposition of a fine which she cannot pay. He was persuaded the respondent is a good candidate for rehabilitation as evidenced by her change of lifestyle and her active involvement in community organizations including the Elizabeth Fry Society, the Aids Coalition and similar agencies. He explained to the respondent how a suspension of sentence can impact upon her in the event she comes into conflict with the law during the next three years.
The Supreme Court of Canada in R. v. Shropshire, [1995] 4 S.C.R. 227, stated at p. 249:
... An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.
Chief Justice Lamer has written to like effect in the judgment of the Supreme Court of Canada in R. v. M.(C.A.), (1996) 105 C.C.C. (3d) p. 327.
The trial judge has considerable discretion when imposing a sentence. It is a discretion in which this court should not lightly interfere. In this case we are satisfied Justice Cacchione applied right principles and fashioned a sentence with which we should not interfere.
In granting leave to appeal, we dismiss the appeal.
C.J.N.S.
Concurred:
Jones, J.A.
Pugsley, J.A.