Professional Documents
Culture Documents
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TABLE OF CONTENTS
I. BACKGROUND 3
II. THE FACTS 4
A. The facts presented by the lawyers 4
B. Further facts requested by the Court 5
C. Further background provided by Defence Counsel in his written submissions 6
D. The Crown 7
III. THE LAW 7
IV. THE OBJECTIVES AND PRINCIPLES OF SENTENCING 9
V. THE OFFENDER 11
A. Criminal Record 11
B. Mitigating and Aggravating Factors 12
1. Mitigating factors 12
2. Aggravating factors 12
A. To provide a full account of the relevant circumstances and facts 13
B. The circumstances leading to the joint submission 14
C. Does the joint submission achieve the objectives and apply the principles of
sentencing? 15
VI. OTHER CONSIDERATIONS 16
VII. CONCLUSION 16
3
I. BACKGROUND
[1] The offender, Dustin Maclean, was charged with damaging a snow
machine with a baseball bat in Rankin Inlet.1 The incident happened
on March 2, 2018. Mr. Maclean pleaded not guilty on May 8, 2018,
and the Court scheduled his trial first in September and then on
November 8, 2018. On November 8th, he changed his plea from not
guilty to guilty. The Court then heard from the lawyers concerning the
facts of the case and what appropriate sentence ought to be imposed.
[2] The Prosecutor and Defence Counsel each recommended that the
Court impose a suspended sentence and six months of probation.
The lawyers called their recommendation a “joint submission”. A
proper joint submission – as I shall discuss in a moment – effectively
ties the judge’s hands and requires the judge to impose the
recommended sentence. As we shall see in section III, the standard
to be met before a judge may reject a joint submission is very high.
For the moment, I note:
[3] In this case, I had to quiz the lawyers to find out the details of the
case. Once the lawyers had answered my queries, I was not satisfied
that the joint submission properly applied the relevant sentencing
principles to the circumstances of the case. I then gave the lawyers
an opportunity to file written submissions justifying their joint
submission. I adjourned completion of the sentencing hearing until
February 11, 2019, to receive and consider the lawyers written
submissions.
[4] Defence Counsel filed written submissions with the Court. The
Prosecutor elected not to do so.
1
Contrary to section 430(4) of the Criminal Code, RSC 1985, c C-46 [Criminal Code]. The
prosecution proceeded by summary conviction.
2
R v Anthony-Cook, 2016 SCC 43 at para 34, [2016] 2 SCR 204 [Anthony-Cook].
4
[6] These are my reasons for rejecting the lawyers’ joint submission.
[8] The Prosecutor provided the Court with a bare summary of the facts
of the case. Crown Counsel said that the local police received
telephone calls at about 5 p.m. on March 2nd. These callers told the
police that a man was damaging a snow machine with a baseball bat
behind the Post Office. Police went to the scene of the crime.
[9] The Prosecutor told the Court that Mr. Maclean went to the Post
Office and that he carried with him a baseball bat in a packsack. Mr.
Maclean went into the Post Office and “exchanged words” with an
employee. The Prosecutor said Mr. Maclean complained the
employee had stolen money from him, the Post Office employee. Mr.
Maclean then went outside and started “repeatedly” to hit the postal
employee’s snow machine, before riding away.
[11] Defence Counsel then confirmed that these were the relevant facts of
the case.
3
Transcript of Proceedings, November 8, 2018 at 6 lines 4 - 8.
5
[12] I asked the Prosecutor if Mr. Maclean had any prior relationship with
the victim. The Prosecutor replied “as far as I am aware there is no
real relationship between these individuals”.4 Defence Counsel then
stated the following: “My understanding is that their relationship is as
an individual member of the public and as an employee of the postal
service”.5 Defence Counsel later elaborated this point in his written
submissions:
… the Crown theory in this matter is that [ Mr. Maclean ] was upset that
the [ victim ] stole $20,000 from him out of the mail. The disclosure
posits that the snow machine was targeted as it was purchased with
those stolen funds … The [victim] used his position of trust to wage a
campaign of terror against [ Mr. Maclean ] including but not limited to
stealing his father’s ashes.6
[14] Herein lies the root of the problem I have with the joint submission.
The lawyers failed to provide critical details relevant not only to what
happened, but to the appropriate sentence. I am not saying that the
lawyers intentionally intended to mislead the Court. However, in my
view, their failure to provide critical information had the effect of
misleading this Court.
… counsel are bound professionally and ethically not to mislead the court.7
4
Ibid at 7.
5
Ibid.
6
Written submissions, November 27, 2018, at paras 15, 17.
7
Anthony-Cook, supra note 2, at para 44.
6
[16] I had the following exchange with Defence Counsel during the
hearing:
[17] The record shows, I had to quiz the lawyers to find out the most
important fact in the case.
8
Ibid at para 20.
7
[20] Defence Counsel did not say whether any of these witnesses had
been subpoenaed by the Crown. Nor did Defence Counsel say
whether the Crown had considered having these two witnesses testify
by video conference or by telephone.9
D. The Crown
[22] I now turn to the law which governs joint submissions by counsel.
[24] Today, the way judges receive and consider joint sentencing
recommendations – joint submissions – is subject to the strict
guidelines mandated by the Supreme Court of Canada in Anthony-
Cook. This new approach recognizes that joint submissions are a
commonplace and necessary part of a well-functioning justice system.
This in turn requires a high degree of certainty that the judge will
accept the lawyers’ joint submission.
9
Telephone and video testimony is used extensively in Nunavut.
10
The Nunavut Court of Justice sits in all 25 of our communities.
8
[25] For these sound reasons, judges are expected to impose a joint
recommendation unless “the proposed sentence would bring the
administration of justice into disrepute, or would otherwise be contrary
to the public interest”.11 However, joint submissions are “not
sacrosanct. Trial judges may depart from them.”12 I must decide
whether the proposed sentence “… would be viewed by reasonable
and informed persons as a breakdown in the proper functioning of the
justice system …”13
11
Anthony-Cook, supra note 2 at para 5. The test I must apply is the “the public interest test”.
12
Ibid at para 3.
13
Ibid at para 42.
14
Ibid at para 51.
15
Ibid at para 54, citing R v DeSousa, 2012 ONCA 254 at para 15, 286 CCC (3d) 152, states:
“Sentencing – including based on a joint submission – cannot be done in the dark. The Crown
and the defence must ‘provide the trial judge not only with the proposed sentence, but with a full
description of the facts relevant to the offender and the offence’, to give the judge ‘a proper basis
upon which to determine whether [the joint submission] should be accepted’”.
9
[27] Before I discuss my concerns with the joint submission, I will outline
the relevant objectives and principles of sentencing against which the
joint submission must be considered.
[28] There are several important objectives a sentencing judge must try to
achieve when imposing a sentence. These objectives are found in
the Criminal Code.16 The sentence I impose must work to:
[29] In trying to meet these objectives, the judge is not left up to his or her
own personal views. There are legal sentencing principles in place to
guide a judge, and to help the judge decide on a fit and proper
sentence.
[30] In this case, there are five objectives and principles which stand out.
They are denunciation, deterrence, rehabilitation, proportionality, and
parity. I will talk about each one in turn.
16
Criminal Code, supra note 1, Part XXIII.
17
Ibid, s 718.
10
[31] Denunciation means this Court must condemn illegal acts. This Court
must send a strong message that vigilantism – taking the law into
one’s own hands – will be punished. In my view, the joint submission
fails to meet this standard.
[32] Deterrence means to try to influence people to respect the law and to
keep the public peace. Deterrence has two parts: general and
specific. In every day English, my intended audience today is made
up of all Nunavummiut (general), as well as this offender (specific).
[33] And the law is very clear: deterrence is an important objective when
sentencing an offender for vigilantism.18 In my view, the joint
submission does not address this principle.
[36] The offender’s crime was planned and premeditated. In my view, the
joint submission does not promote rehabilitation. I will say more
about Mr. Maclean’s rehabilitation starting at paragraph 58.
[38] The Criminal Code directs sentencing judges to act with ‘restraint’.
This means the court must impose the least harsh sentence which
can achieve the goals involved in sentencing. Jail must only be
imposed when there is no reasonable alternative. In Canada, jail is
imposed only as a last resort.
18
R v Guest, 1998 CanLII 12348 (SK CA).
11
V. THE OFFENDER
[41] Defence Counsel said Mr. Maclean suffers both from mental health
and addictions issues. He stated that Mr. Maclean has bipolar
disorder and attention deficit hyperactivity disorder (ADHD). He also
experiences anxiety. In fact, Mr. Maclean has been seeing two
different counsellors regularly – one for addictions and one for mental
health. Mr. Maclean was in active counselling at the time he
committed this crime.
[42] Defence Counsel then said Mr. Maclean’s “addictions issues ended
when he moved to the territory … He has maintained sobriety up here
and the territory has been an excellent influence on him”.20 Defence
Counsel added that Mr. Maclean is remorseful.
A. Criminal Record
19
Transcript of Proceedings, supra 3 at 11 line 15.
20
Ibid at 10.
12
1. Mitigating factors
[46] Mitigating factors work to lessen the sentence. There are two
mitigating factors in this case:
1. Mr. Maclean changed his plea to guilty on the scheduled trial date
and he accepted responsibility. This Court always gives meaningful
credit to someone who does this; and
2. Aggravating factors
[48] In my view, the proposed sentence does not give adequate weight to
these aggravating factors.
13
VII. ANALYSIS
[49] More than two years after Anthony-Cook was released – and a year
after R v Kippomee 21 which discussed joint submissions in Nunavut –
many joint submissions continue to be problematic. Counsel have a
threefold pro-active duty to the court when they present a joint
submission:
[51] The lawyers in this case failed in their pro-active duty to provide a full
accounting to the Court:
Counsel should, of course, provide the court with a full account of the
circumstances of the offender, the offence, and the joint submission
without waiting for a specific request from the trial judge. As trial
judges are obliged to depart only rarely from joint submissions, there is
a “corollary obligation upon counsel” to ensure that they “amply justify
their position on the facts of the case as presented in open court” (Martin
Committee Report, at p. 329). Sentencing – including sentencing based
on a joint submission – cannot be done in the dark. The Crown and the
defence must “provide the trial judge not only with the proposed
sentence, but with a full description of the facts relevant to the offender
and the offence”, in order to give the trial judge “a proper basis upon
which to determine whether [the joint submission] should be accepted”
21
R v Kippomee, 2018 NUCJ 8 (currently under appeal).
22
Anthony-Cook, supra note 2 at para 54.
23
Ibid at para 53.
14
(DeSousa, at para 15; see also Sinclair, at para 14.24 [Emphasis added]
[52] In this case, the Court is obliged to quiz lawyers to get the full
accounting required by Anthony-Cook. Neither lawyer in his oral
submission told the Court what motivated the offender to attack the
victim’s snow machine. The Crown theory was only communicated by
Defence Counsel when provided a chance to flesh out his justification
in writing. Indeed, the very heart of this case – that Mr. Maclean
intended and planned to damage the victim’s snow machine in an act
of vigilantism – was withheld from the Court.
[53] The Prosecutor did not provide the Court with any insight in his oral
submission why he agreed to the joint submission. And as I have
already noted, the Prosecutor did not take the chance given him to
fulfill the Crown’s obligations under Anthony-Cook by filing a written
submission. Based solely on what the Prosecutor told the Court, I
cannot say the Crown obtained any benefit from the joint submission
apart from the certainty of a conviction.
[55] Neither counsel acknowledged the availability and wide spread use of
video and telephone testimony in Nunavut. The Court was not told
whether the Crown had considered using the available technology.
Nor was the Court told whether the Crown had issued subpoenas for
the witnesses or made travel arrangements for the out of jurisdiction
witnesses.
24
Ibid at para 54.
25
Transcript of Proceedings, supra note 3 at 9 lines 25 - 27,at 10 line 1.
15
[56] I simply cannot conclude from what I was told that Mr. Maclean made
any concessions apart from entering a late guilty plea.
C. Does the joint submission achieve the objectives and apply the
principles of sentencing?
[57] In my view, the joint submission fails to give proper weight to the
principles of denunciation, deterrence and proportionality. This case
is about vigilantism committed by a repeat offender. This fact lies at
the very heart of the case. The lawyers’ failure to communicate this
fact to the court undercuts the joint submission’s legitimacy.
[59] Indeed, the failure by counsel in this case to provide a candid and
complete factual record in open court undermined the integrity of the
judicial process:
26
Anthony-Cook, supra note 2 at para 42.
27
Ibid at para 57
16
[63] The endorsements on the Information reveal that this case has twice
been scheduled for trial – both in September and November 2018.
The trial in September was adjourned at the Crown’s request. If I
strike Mr. Maclean’s plea, then the third trial date will be in March
2019 – one year after the incident in question. I note this further delay
would still be well within the time frame set by the Supreme Court of
Canada for summary conviction cases. 29
[65] Without the joint submission, I likely would have sentenced Mr.
Maclean to jail. I cannot say that Mr. Maclean would have pleaded
guilty knowing he could well go to jail. To send Mr. Maclean to jail in
these circumstances would in my mind be unfair.
VII. CONCLUSION
[66] Mr. Eaton-Kent, Mr. Maclean, has two options: he may either apply to
withdraw his guilty plea, plead not guilty, and have a trial next month,
or he may proceed to be sentenced.
28
See paragraph 26 above.
29
R v Jordan, 2016 SCC 27, [2016] 1 SCR 631; R v Anugaa, 2018 NUCJ 2 (CanLII).
30
The Supreme Court has said that judges may “only rarely” depart from a joint submission.
Anthony-Cook, supra note 2, at para 54.
17
[67] As you do not have instructions, I adjourn Mr. Maclean’s case to the
next sitting of Court in Rankin Inlet to be spoken to on March 12, 2019
at 1:30 Central Time.
___________________
Justice P. Bychok
Nunavut Court of Justice