SUPREME COURT OF Nova Scotia
Citation: Susin v. R., 2023 NSSC 262
Date: 20230907
Docket: CRS 520530
Registry: Sydney
Between:
Anthony Abbott Susin
Appellant
v.
His Majesty the King
Respondent
DECISION
Judge: |
The Honourable Justice Jamie Campbell |
Heard: |
August 14, 2023, in Halifax, Nova Scotia |
Counsel: |
Jon Patterson, for the Appellant Peter Harrison, for the Respondent
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By the Court:
[1] Anthony Susin has appealed a decision in which the trial judge rejected a joint recommendation. Crown counsel and defence counsel recommended a conditional discharge with a 24 month period of probation. The trial judge instead imposed the same period of probation but did not grant the conditional discharge. Mr. Susin’s counsel says that the trial judge made an error of law in failing to accept a joint recommendation that did not bring the administration of justice into disrepute and was not otherwise contrary to the public interest. The Crown did not contest the appeal.
The Offence
[2] Mr. Susin pleaded guilty to an offence contrary to Section 267(a) of the Criminal Code. The facts were provided to the court on November 14, 2022, the date scheduled for sentencing. A constable was dispatched to respond to a 911 call regarding an incident involving a knife. The constable got out of his police car and saw a family on the road, speaking to two other constables. A younger male was covered in blood from his hand to his wrist area and blood could be seen on his shirt, pants and socks. The constable also noted a middle aged man covered in blood from his left hand. He was holding a paper towel on his thumb which was bleeding.
[3] The constable first spoke with the younger man who identified himself as Mr. Susin. He and his mother’s ex-boyfriend, Mr. Brewer, had gotten into an argument apparently about some loud music, and Mr. Susin said that he grabbed a knife to defend himself. He cut Mr. Brewer’s thumb. The injury did not require medical attention at the hospital.
[4] No victim impact statement was filed.
The Sentencing
[5] Mr. Susin entered an early guilty plea. He was 19 years old at the time and had no criminal record. His pre-sentence report was described by Crown counsel as being “quite positive”. He had a difficult upbringing but made significant strides toward improving his life. He was employed with a boat building company and his employer spoke highly of him. Alcohol had been a concern. Mr. Susin said that he was no longer consuming alcohol.
[6] The Crown acknowledged that the injury caused to Mr. Brewer was an aggravating factor but described the injury to Mr. Brewer’s thumb as “trifling”.
[7] The Crown recommended a conditional discharge with a probation period of 24 months. The conditions included refraining from using alcohol or drugs, not to have any weapons in his possession and having no contact with Mr. Brewer. Mr. Susin was also to attend for assessments and counselling as directed by his probation officer.
[8] Mr. Susin’s counsel joined in that recommendation. He noted the family support that Mr. Susin enjoyed but also pointed out the mental health and addiction struggles that Mr. Susin had grappled with since his early teens.
[9] He noted that Mr. Susin’s counsellor had stated that Mr. Susin was doing very well and that Mr. Susin showed insight into his past and the problems that alcohol had caused for him. The incident that brought Mr. Susin to court was described as the catalyst that had given Mr. Susin the ability and insight to turn his life around. Counsel said that “Anthony Susin of November 14, 2022 is a very different person from the Anthony Susin of May 7, 2022.” Counsel noted that the joint recommendation was made “in the true spirit of Anthony-Cook”.
[10] Mr. Susin spoke. He said, in part, that what happened would never happen again. “It was the worst thing I ever put it on…I regret it so much. It’s something that should never have happened and I’m going to go far and beyond to make sure nothing like that can ever happen again.”
[11] Judge Daniel MacRury noted that he had concerns, not necessarily with the probation but that the conditional discharge might be contrary to the public interest because a person had been stabbed. Judge MacRury properly followed the process required by the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43. He asked counsel for briefs and set a date to return for argument to allow counsel to address those concerns.
[12] Counsel filed briefs and returned for argument on December 15, 2022. At that time Crown counsel argued that a conditional discharge would not be contrary to the public interest given the “exceptional circumstances at play”. Counsel noted R. v. Espinosa Ribadeneira, 2019 NSCA 7, and R. v. Agra, 2018 NSPC 34.
[13] Mr. Susin’s counsel updated the trial judge on the improvements in Mr. Susin’s situation. He was continuing to see his counsellor and keeping his appointments. Counsel said that having a criminal record would have a negative impact on Mr. Susin’s mental health.
[14] The judge thanked counsel for their submissions and set the matter over to January 5, 2023, for decision.
Sentencing Decision
[15] The trial judge gave an oral decision. He outlined the facts of the case and set out the purposes and principles of sentencing. He said that an aggravating factor in this case was the use of a knife. “This was an incident of violence and given that a knife was used, then I would say extreme violence.”(transcript p. 21). The judge acknowledged that there were mitigating factors as well. Mr. Susin had an alcohol problem and mental health issues and he had sought help for those. He had no criminal record. He had a very difficult upbringing.
[16] The judge was concerned with whether a conditional discharge was “appropriate in the circumstances”. He took note of the Anthony-Cook decision and set out the test from that decision. The trial judge should not depart from a joint submission unless the sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. A submission will bring the administration of justice into disrepute or be contrary to the public interest if it is so markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system.
[17] Having cited the test in Anthony-Cook the trial judge took the next logical step and addressed the test in R. v. Fallofield, [1973] B.C.J. No. 559 (BCCA), which set out the tests for granting a conditional or absolute discharge. The first part of the test is whether the discharge is in the best interests of the accused. The second condition precedent is that the discharge is not contrary to the public interest. In the context of that second condition the public interest in deterrence is a consideration but it should not preclude the judicious use of the discharge provisions.
[18] Judge MacRury set out what in my respectful view was an accurate and succinct outline of the law to be applied. He then addressed the issue of proportionality. He said that the reality was that the Court must take into account denunciation, deterrence and rehabilitation. He concluded that it would be contrary to the public interest to grant a discharge. He acknowledged that a discharge could be available even when a weapon is involved but the reality was that a person had been stabbed.
[19] The judge accepted the recommendation for 24 months probation with a suspended sentence instead of the conditional discharge recommended by both counsel. The terms of probation were the same as those proposed for the conditional discharge.
The Issue
[20] The issue for the appeal is whether the trial judge erred in law in refusing to accept the joint recommendation and imposing a suspended sentence rather than a conditional discharge.
The Public Interest
[21] It cannot be denied that the trial judge in this case made an entirely valid point. When weapons are involved, in this case a knife, deterrence and denunciation are important factors in sentencing. And had the sentencing not involved a joint recommendation it would be difficult to find fault with his reasoning.
[22] What complicates the matter is that there are two tests to be applied, and both reference the public interest. The Fallofield test for the granting of a discharge references the public interest. The Anthony-Cook test for assessing a joint recommendation, references bringing the administration of justice into disrepute or otherwise being contrary to the public interest. When a joint recommendation involves a discharge, the tests are not “rolled up” into one public interest test. Different considerations are engaged.
[23] In dealing with whether a discharge is contrary to the public interest courts consider factors that may include the seriousness of the offence, the prevalence of the offence in the community, whether the accused stood to make some personal gain at the expense of others, whether the offence is a property offence, whether the crime was committed on impulse or was calculated, and whether the offence should be a matter of record relating to the accused. Those factors were cited by Judge Scovil in R. v. Agra, 2018 NSPC 34, at para. 16. On that analysis, the consideration of whether deterrence of knife assaults can be achieved by a discharge is relevant.
[24] But in this case the trial judge was not dealing simply or only with whether a conditional discharge was contrary to the public interest. This was a joint recommendation. He was required to address whether the joint recommendation would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. The discharge had to be considered first and foremost as a joint recommendation. The consideration of the circumstances of the crime must be undertaken in the context of a joint recommendation. The issue is not whether the discharge should have been granted or would have been granted by the trial judge in the absence if a joint recommendation but whether the granting of a discharge would be seen by a reasonable person as a “break down in the proper functioning of the criminal justice system” (Anthony-Cook, para. 33, citing R. v. Druken, 2006 NLCA 67).
[25] When an accused person enters a guilty plea based on an agreed upon sentence to be presented to the court as a true Anthony-Cook joint recommendation, the person is entitled to some level of comfort, if not certainty, that the sentence will be imposed barring something entirely unforeseen. That is not achieved by the judge assessing whether the discharge is or is not in the public interest and would have been granted in the absence of a joint recommendation. It is only achieved when the judge reviews counsels’ assessment that the discharge is not contrary to the public interest. And then the test is whether that assessment is so unreasonable that it would cause reasonable people to lose faith in the justice system.
[26] The trial judge’s review of the matter was based on whether the discharge was contrary to the public interest. That would have been the proper test to apply in the absence of a joint recommendation. With respect, in my view, the joint recommendation adds another level of analysis. That is whether the recommendation that a discharge was not contrary to the public interest was so misguided, or “out of line”, or “unhinged from the circumstances of the offence and the offender” that it was not just wrong but so wrong that it would cause reasonable people to believe that the criminal justice system had broken down or ceased to function properly.
Conclusion
[27] The joint recommendation for a discharge was not unreasonable or unhinged from the circumstances. Counsel provided the judge with cases that indicate that discharges have been granted in circumstances at least somewhat similar to those of Mr. Susin. R. v. Espinosa Ribadeneira, R. v. Agra, R. v. Capstick, 2006 NSSC 33. In each of those cases conditional discharges were imposed on offenders who were involved with assaults of varying seriousness. What they establish is that a conditional discharge in this case was not an unreasonable sentence or one that was out of touch with the circumstances of the case. And as counsel have noted, the sentence imposed by the trial judge was different from the recommendation only in that it imposed a suspended sentence rather than a conditional discharge.
[28] In this case a very experienced trial judge in an effort to apply the law precisely and not act as a rubber stamp, made a judgement call about the appropriateness of the sentence, applying a test that he would have applied many times before. That was the Fallofield test for granting a discharge. The public interest aspect of that test became entangled with the public interest wording of the Anthony-Cook test dealing with joint recommendations. The oversight, in my respectful opinion, was that the two should be applied separately. Counsel’s joint recommendation was that a conditional discharge was in Mr. Susin’s interest and not contrary to the public interest. The question for the trial judge was not whether he believed that to be the case but whether that view was unreasonable or unhinged from the circumstances of the case. The difference between a conditional discharge with 24 months probation and a suspended sentence with the same probation terms is not great. It would make it difficult to conclude that with respect to the latter public confidence in the justice system would be preserved, while the former would suggest to well informed members of the public that the working of the system had somehow broken down.
[29] The appeal is granted. The suspended sentence is set aside, and a conditional discharge is granted.
Campbell, J.