IN THE SUPREME COURT OF NOVA SCOTIA
Citation: R. v. Dunlop, 2006 NSSC 311
Date: 20061020
Docket: CR. Am. 266718
Registry: Amherst, N.S.
Between:
Her Majesty the Queen
Appellant
v.
William Cecil Dunlop
Respondent
Judge: The Honourable Justice Donald M. Hall
Heard: September 20, 2006, in Amherst, Nova Scotia
Counsel: Bruce C. Baxter, Esq., counsel for the Crown
William C. Dunlop - represented self
By the Court:
[1] This is an appeal of a decision of the Honourable Judge Carole A. Beaton in Provincial Court at Amherst, Nova Scotia, on May 29, 2006, wherein she refused to make an order for restitution under s. 738(1) of the Criminal Code. The issue to be decided is whether restitution ought to have been ordered.
[2] The respondent pleaded guilty in Provincial Court to causing damage to property not exceeding $5,000.00 in value, contrary to s. 430(4) of the Criminal Code and was sentenced to pay a fine of $200.00 and a victim fine surcharge of $30.00. In addition he was placed on probation for a period of six months subject to conditions. The Crown-appellant also sought a restitution order for the replacement value of the property pursuant to s. 738(1) of the Code. As indicated above, however, the court declined to make such an order.
[3] The substance of the charge is that the respondent placed property of his former wife on the front lawn of what had been the matrimonial home. The property remained outside of the home and was exposed to the elements and other hazards. It apparently disappeared over the course of a number of days.
[4] At the sentencing hearing the Crown called the complainant who testified as to the replacement cost of the damaged property by reference to the current Sears catalogue and photographs of the property. In his testimony the respondent disputed the value of the property in question saying that it was old and virtually worthless.
[5] The Crown appealed the decision of the Provincial Court judge’s refusal to order restitution contending that all of the requirements for making such an order, including evidence of the replacement cost of the damaged goods, had been met. The applicable sections of the Criminal Code are as follows:
687. (1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive,
(a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or
(b) dismiss the appeal.
738. (1) Where an offender is convicted or discharged under section 730 of an offence the court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:
(a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, where the amount is readily ascertainable;
813. Except where otherwise provided by law,
(b) the informant, the Attorney General or his agent in proceedings under this Part may appeal to the appeal court
(ii) against a sentence passed upon a defendant,
822. (1) Where an appeal is taken under section 813 in respect of any conviction, acquittal, sentence, verdict or order, sections 683 to 689, with the exception of subsections 683(3) and 686(5), apply, with such modifications as the circumstances require.
[6] The leading authority with respect to compensation orders under what is now ss. 738(1) of the Code is R. v. Zelenski (1978), 41 C.C.C. (2d) 97, a decision of the Supreme Court of Canada. In writing for the majority, Laskin, C.J.C., confirmed that a compensation order under then s. 653 (now s. 738) is part of the sentencing process and that the power to make such an order is discretionary and should only be made with restraint and caution. The Chief Justice discussed additional considerations that are to be taken into account in deciding whether a compensation order should be granted. These and other factors are succinctly set out in the decision of the Ontario Court of Appeal in R. V. Devgan (1999), 136 C.C.C.(3d) 238.
[7] In Devgan, Labrosse, J.A. in delivering the judgment of the Court wrote at paragraph 26:
In Zelensky, Laskin C.J. identified certain objectives and factors that relate to the application of s. 725(1) These considerations have been expanded upon in subsequent cases. Below, I have consolidated these objectives and factors, all of which are relevant to the issue of what constitutes a proper exercise of discretion for the purpose of s. 725(1).
1. An order for compensation should be made with restraint and caution;
2. The concept of compensation is essential to the sentencing process:
(i) it emphasizes the sanction imposed upon the offender;
(ii) it makes the accused responsible for making restitution to the victim;
(iii) it prevents the accused from profiting from crime; and
(iv) it provides a convenient, rapid and inexpensive means of recovery for the victim;
3. A sentencing judge should consider;
(i) the purpose of the aggrieved person in invoking s. 725(1);
(ii) whether civil proceedings have been initiated and are being pursued; and
(iii) the means of the offender.
4. A compensation order should not be used as a substitute for civil proceedings. Parliament did not intend that compensation orders would displace the civil remedies necessary to ensure full compensation to victims.
5. A compensation order is not the appropriate mechanism to unravel involved commercial transactions;
6. A compensation order should not be granted when it would require the criminal court to interpret written documents to determine the amount of money sought through the order. The loss should be capable of ready calculation.
7. A compensation order should not be granted if the effect of provincial legislation would have to be considered in order to determine what order should be made;
8. Any serious contest on legal or factual issues should signal a denial of recourse to an order;
9. Double recovery can be prevented by the jurisdiction of the civil courts to require proper accounting of all sums recovered; and
10. A compensation order may be appropriate where a related civil judgment has been rendered unenforceable as a result of bankruptcy.
For a discussion of these factors, see R. v. Zelensky at 111-13; R. v. Fitzgibbon at 454-55, London Life Insurance Co. v. Zavitz at 270; R. v. Scherer (1984), 16 C.C.C.(3d) 30 (Ont. C.A.) At 37-38; R. v. Salituro (1990), 56 C.C.C.(3d) 350 (Ont. C.A.) At 372-73; R. v. Horne (1996), 34 O.R.(3d) 142 (Gen. Div.) At 148-49; and R. v. Carter at 75 - 76.
[8] Since this is a summary conviction proceeding and being part of the sentencing process, the Attorney General has a right of appeal under s. 813(b)(ii) of the Code.
[9] Section 822(1) of the Code provides that section 683 to 689 of the Code apply to summary conviction appeals subject to exceptions which have no application in this appeal. Thus, the same principles that apply to an appeal to the Court of Appeal are applicable to a summary conviction appeal.
[10] The standard of review of a sentence imposed by a trial court is set out in the decision of the Supreme Court of Canada in R. v. Shropshire (1995) 102 C.C.C.(3d) 193. In delivering the decision of the Court, Iacobucci, J., said at paragraphs 46 - 48:
The question, then, is whether a consideration of the “fitness” of a sentence incorporates the very interventionist appellate review propounded by Lambert J.A. With respect, I find that it does not. 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.
I would adopt the approach taken by the Nova Scotia Court of Appeal in the cases of R. v. Pepin (1990), 57 C.C.C.(3d) 355, 98 N.S.R.(2d) 238, 10 W.C.B. (2d) 457, and R. v. Muise (1994), 94 C.C.C.(3d) 119, 135 N.S.R.(2d) 81, 25 W.C.B.(2d) 301. In Pepin, at p. 373, it was held that:
. . . in considering whether a sentence should be altered, the test is not whether we would have imposed a different sentence; we must determine if the sentencing judge applied wrong principles or [if] the sentence is clearly or manifestly excessive . . .
Further, in Muise it was held at pp. 123-4 that:
In considering the fitness of a sentence imposed by a trial judge, this court has consistently held that it will not interfere unless the sentence imposed is clearly excessive or inadequate. . . .
. . . .
The law on sentence appeals is not complex. If a sentence imposed is not clearly excessive or inadequate it is a fit sentence assuming the trial judge applied the correct principles and considered all relevant facts. . . . My view is premised on the reality that sentencing is not an exact science; it is anything but. It is the exercise of judgment taking into consideration relevant legal principles, the circumstances of the offence and the offender. The most that can be expected of a sentencing judge is to arrive at a sentence that is within an acceptable range. In my opinion, that is the only basis upon which Courts of Appeal review sentences when the only issue is whether the sentence is inadequate or excessive.
[11] Lamer, C.J.C., in a subsequent decision of the Court in R. v. M(C.A.) (sub nom R. v. C.A.M.) (1996) 105 C.C.C.(3d) 327, after citing with approval the decision of Iacobucci, J., above, added at paragraph 90:
Put simply, 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 imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal code. As s. 717(1) reads:
717(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts the person who commits the offence.
(Emphasis added.)
This deferential standard of review has profound functional justifications. . . .
[12] In a recent decision of the Nova Scotia Court of Appeal R. v. Smith, 2006 NSCA 95, the Court had occasion to consider the appropriate standard of review respecting a sentence appeal. Saunders, J.A., said at paragraphs 42 - 44:
The standard of review of a sentence on appeal under s. 687(1) of the Criminal Code is a deferential one. In order to vary a sentence, it must be demonstrably unfit.
There is a legion of case law to remind us that we who sit on appeal are prohibited from tinkering with sentences. I need mention only two. Beginning with R. v. Shropshire, [1995] S.C.J. No. 52, which followed the lead and adopted the reasoning of this court in such cases as R. v. Pepin (1990), 98 N.S.R.(2d) and R. v. Muise (1994), 94 C.C.C.(2d) 119, it is now beyond doubt that when considering the fitness of a sentence imposed by a trial judge, we will not interfere unless the sentence imposed is clearly excessive or inadequate.
These same directions were repeated by the Chief Justice in R. v. C.A.M. (1996), 105 C.C.C.(3d) 327 (S.C.C.). An appellate court is not given free rein to modify a sentencing order simply because it feels that a different order ought to have been imposed. A high degree of deference is obligatory. The reasons are obvious. Sentencing is an art. It is clearly one of considerable discretion. As well, sentencing “is a profoundly subjective process.” The trial judge has the advantage of having seen and heard all of the witnesses whereas we who sit on appeal can only base our assessment upon a written record. The sentencing judge “also possesses the unique qualifications of experience and judgment,” having served “on the front lines of our criminal justice system.” For all of these reasons a sentence should only be varied “if the court of appeal is convinced it is not fit.”
[13] In her decision, Judge Beaton considered the principles applicable on an application for a compensation order under s. 738(1) and referred to Zelenski and Devgan. As well, she reviewed the evidence presented by the parties in the course of the sentencing hearing. She concluded at paragraph 23:
In my view, the loss is not capable of ready calculation and there is a clear dispute on fundamental factual issues. Not only is the loss not easily calculated but the value of any part of the property returned is not easily calculated and so I decline to exercise my jurisdiction to require a restitution order.
[14] In view of these findings, which were supported by the evidence, in my respectful opinion the learned judge made no error. She applied the correct principles and considered all relevant factors and imposed a sentence that clearly was not unfit. In my view, therefore, there is no basis to interfere with her exercise of discretion which is entitled to considerable deference.
[15] Accordingly, the appeal is dismissed and the decision of Judge Beaton affirmed. There will be no order for costs.
Donald M. Hall, J.