The Changing Face of Conditional Sentencing

6. The Changing Face Of Conditional Sentencing: Sentencing As Seen From The Front Lines

6. The Changing Face Of Conditional Sentencing: Sentencing As Seen From The Front Lines

Mr. Justice Gilles Renaud
Ontario Court of Justice
Cornwall (Ontario)

6.1 Introduction

Recently, the Supreme Court of Canada has provided definitive instruction on the sentencing of offenders to imprisonment within the community. In so doing, it has insisted that considerable deference be shown by appellate tribunals to the judgment of trial courts.[204]

Indeed, the Court confirmed and emphasized[205] the following remarks in R. v. M. (C.A.)[206] to the effect that:

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 more 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 Court went on to note that a sentencing judge must take into account the needs and current conditions of and in the community.

Hence, the Supreme Court of Canada has clearly delineated the scope of the trial court’s mandate in sentencing as embracing, among other factors, the interest and perspective of the community. In this respect, it is thought that appellate tribunals are removed from the community, and are not as advantageously situated to judge the impact of an offender’s actions. Hence, appeal courts must show a measure of deference.

In this paper, attention is drawn to a number of judgments that will serve to illustrate certain concerns that arise, in the eyes of one trial judge at least, as to the proper method of giving effect to this signal instruction. In other words, my goal is to make plain a number of issues that appellate tribunals will have to come to grips with in evaluating whether trial court sentences are “demonstrably unfit” in the area of conditional sentences.

Our object is not to provide answers: that is within the province of academic commentators, of the advocates, and of the appellate tribunals. Our object is merely to point out some concerns…

6.2 Discussion

1) How may I judge the temperament of the community?

Recently, in R. v. Mafi[207], Lambert J.A. remarked that trial judges are likely to be familiar with the temperament of the community as it relates to a particular crime. His Lordship added, “[T]he sentencing judge brings to the sentencing task both an institutional objectivity and a deep subjective understanding of the case”.[208]

My concern is a simple one: how do I ensure that I have come to understand fully and fairly the attitude, the temperament of the community? For example, what if the offender is a member of a “motorcycle gang” involved in drug trafficking, or in a violent offence. Is there any member of the community who would not wish the community to be free of such individuals? On the assumption that I can actually take these feelings, these sentiments into account, the question remains: how do I gauge the pulse of the community? Do I read the media reports, listen to on-air talk shows, or is there a web site to be consulted? Are my neighbours representative of the community? Must it be limited to the victim impact statement?

I pause to question whether the prosecution bears the burden of this duty? In this respect, note the concluding paragraphs of R. v. Wells[209], wherein the Court stresses the need, on occasion, for evidence to be introduced respecting the difficulties faced by aboriginal offenders.

Of course, the question to be answered in any case in which I rely on this information is the following: how do I fairly place this information on the record to permit the parties to address themselves to it and for curial review to be meaningful in assessing the merits of a conditional sentence, the primary community-based sentence in the Code?

2) May the temperament be judged by a visiting judge?

In R. v. Calderwood, Finch, J.A., observed that "… I think a resident Provincial Court judge is entitled to take judicial notice of recent unlawful conduct in the community, and of the community's attitude towards that conduct. Such local knowledge is a relevant consideration in deciding whether a discharge should be granted, or if not, what sort of sentence would be appropriate".[210]

In addition, in R. v. Carter[211], the British Columbia Court of Appeal sought again to underscore the principle that a trial judge who has presided over criminal matters in the community in question for some time is well suited to take notice of any causes for concern and how the meting out of sentences may address the issue. As made plain by Ryan, J.A., “[t]hese offences were committed in Kelowna. The trial judge who sentenced these young men sits in the Okanagan. He has an acute understanding of the effect of these crimes upon the community. He heard the submissions and saw the accused. I would not disturb his sentences”.[212]

Of interest, Her Ladyship quoted the following passage from Madam Justice Southin's judgment in R. v. Mulvahillas support for “…the importance of the position of trial judges who know what crimes are a problem in their own part of the Province and who have had the opportunity to observe the accused”.[213]

When does one become a local judge, if ever, if on circuit within a large region? What of judges who preside in large urban centers: may a judge ever know what is actually going on in the Jane-Finch area? And, again, the question remains: how does an appellate tribunal assess our knowledge of the community?

(3) Must a trial judge be experienced?

In one sense, the examples noted above may be representative of a school of thought according to which appellate courts may uphold sentences by reference to the wisdom and experience of the sentencing judge, and thus implicitly acknowledging their peculiar knowledge of the local situation. For example, in R. v. Doucet, former Chief Justice Gale observed that the trial judge was, in his view, a “wise and tolerant man” and upheld the sentence imposed.[214]

Note as well the reference to the experience of the sentencing judge in R. v. Cornacchia: “…there was a very positive presentence report in this case. It moved a most experienced trial judge to come to the conclusion that he came to and we must give his concern great weight.” [215]

Of course, wise and experienced judges sometimes make mistakes. For example, in R. v. Simon, the Court of Appeal of Ontario ruled that the severe sentence imposed for a break and enter offence could not be sustained, though it was imposed by a “wise and very experienced judge”, on the footing that it was excessive.[216] The Court observed, of interest to us today, the trial judge considered and rejected the community's different value or emphasis of death, in this case of manslaughter following a drinking bout. In addition, it noted that “[a]lthough there may be a local situation of which this Court is unaware, the break and enter offence is one which occurs all over this Province and not only in Northern Ontario…”.[217] Hence, what if the experience of the trial judge led him or her to that conclusion? Might the result have been different if further information had been placed on record?

From my perspective, and the perspective of parties seeking to upset any decision I render respecting the merits of a conditional sentence, I must ask the question: when do I become experienced and how do I make that transparent in my reasons?

(4) What if there is no “grapevine” within the community?

Consider the remarks of Judge O Hearn in R. v. Collier, with respect to the impact of general deterrence in a smaller community:

…there is practically no publicity given to the evidence at the trial or to the reasons given by the Judge for sentencing. The public gets only an imperfect idea, if any, of what the charge was, what facts were proved and what factors were taken into account in passing that sentence. … to pass a deterrent sentence that has any meaning to others in such circumstances is almost impossible. The conditions of modern life are so different from those in past times, when the community was aware of what was going on in its courts, that the concept of deterring others has become greatly attenuated except for major offences that achieve wide publicity or perhaps for the kind of transmission that occurs by word of mouth between the people involved and their acquaintance.[218]

The court added: “This means, unfortunately, that the court, if it is going to pass a sentence deterring others, must largely ignore mitigating factors because it can rely on them not being communicated to the public effectively … it would appear to be unjust to 'make an example' of the accused by giving him a stern punishment to deter others if it is in excess of what he merits on the facts of the case”.[219]

One may ask the question: does an offender receive a sterner sentence because the media chose to follow that case, as opposed to another? Does it matter that there is a grapevine but that the trial judge knows nothing about it?

(5) Does the size of the community matter?

In R. v. Hinch, Mr. Justice Norris observed: “Doubtless as a Magistrate in a smaller community appreciated better than the members of this court the effect of the sentence … A sentence of imprisonment for one month and a fine of $2,000 imposed in one of our large urban centres has not the same effect as a similar sentence in country centres where associations are close, and community, social and religious status is judged more severely.”[220] Would this comment still be appropriate today?

In R. v. Wiswell, a sentence appeal was filed by an unrepresented offender note is made in particular of the following comments: “The trial judge has had experience with this young man and obviously impressed with complete failure to comply with probation order…The gravity of this type of violent behaviour is very difficult to ignore, particularly in small towns and cities.” [221]

Is it ignored in larger centres? Would an appellate tribunal intervene more readily in such cases? Since appeal courts are located in large urban centres, what is the impact of such a geographic situation?

(6) What if the trial judges are suffering from a “generation gap”?

I do not know a thing about Yorkville Village, not having lived or studied in Toronto, but the Ontario Court of Appeal did observe in one case that one of the accused lived in Yorkville Village and was exposed to and apparently succumbed to excessive use of drugs and alcohol and to sexually immoral conduct.[222] How did they know this? Did they rely on outside information? Was it accurate? Was it simply a manifestation of a generation gap?

On the other hand, some judges are particularly aware of present-day events. In one of the better known examples of a judge, sitting in an appellate capacity, taking notice of the world outside the court room, R. v. Heffer, Dickson, J.A., later Chief Justice of Canada, noted the phenomenon of "peregrinating youth".[223]

(7) What if the community is not capable of detached fairness?

If trial judges, in the front lines, are to take into account the wishes of the community, one cannot help but observe that a number of issues must be addressed, notably the following two.

Firstly, does it matter that the community at large may hold a different view from that held by a smaller segment of the population? On the one hand, the larger group wishes a stern sentence while the smaller one, from whom the offender emerges, wishes a lenient result? For example, in R. v. Turner, Mr. Justice Haines remarked that "Windsor has a population of 5,000 Negroes…Quite properly they watch with keen interest the relative treatment of these two accused (one of whom is black)”.[224] Note as well that in R. v. Fireman, the trial judge considered and rejected the community's different value or emphasis of death, in this case of manslaughter following a drinking bout.[225]

Secondly, what if the community at large wishes undue leniency, as in cases in which the victim is ostracized and the offender is not subject to any criticism? What if the community is not sensitize to the plight of victims of domestic violence, to the harm done to seniors, to gays and lesbians, etc.?

(8) Personal knowledge and prevalence

In R. v. Priest, the Court of Appeal did not find it necessary to decide the question whether the trial judge had sufficient information before him to safely conclude that there was “a serious problem of break and enter in Hearst.”[226] The Court did note that “… unlike some cases that have come before this court, there were no statistics placed before the trial judge and he based his opinion on the court dockets of persons accused of the crime of break and enter.”[227]

However, this was a very experienced trial judge who presides over a number of small communities. Must he spell out more than his own knowledge? Recall that in R. v. Simon, a comment was recorded by Gale, C.J.O. to the effect that “[a]lthough there may be a local situation of which this Court is unaware, the break and enter offence is one which occurs all over this Province and not only in Northern Ontario…”[228] What if the trial judge in Priest knew of such a local condition?

6.3 Conclusion

There is much merit in the position advocated in many cases that a local trial judge having some experience of the community is ideally placed to consider and to weigh his or her knowledge of any local situation as it influences the imposition of sentences. The extent to which the doctrine should apply remains to be seen, however, as consideration must be given to the need to create a fuller record for appellate review and the potential unfairness of treating one offender more harshly (or more leniently) than another depending on the experience of a judge.

Lastly, appellate courts must provide further guidance on two issues: firstly, the extent to which the views of the community are to be ascertained and, secondly, may the community submit a form of victim impact statement.

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