Peters Out: How Parliament is Driving Judges Down
In accepting the Criminal Lawyers’ Association’s 2009 G. Arthur Martin Medal, Justice Marc Rosenberg observed Parliament’s increasingly punitive approach to sentencing demonstrated by, in part, “the narrowing, almost to the vanishing point, [of] the circumstances in which a conditional sentence can be imposed.” Bill C-9 came into force in December 2007 and effected this “narrowing” so described by Justice Rosenberg.
Prior to the introduction of Bill C-9, Professor David M. Paciocco noted “that it would have been foolish to have prohibited absolutely the use of conditional sentences for violent offences” (Getting Away with Murder: The Canadian Criminal Justice System (Irwin Law: Toronto, 1999) at 61). This is, however, exactly what the minority Conservative government did by prohibiting conditional sentences for any “serious personal injury offence” (defined in s. 752 of the Criminal Code, RSC 1985, c C-46) prosecuted by way of indictment for which the maximum terms of imprisonment is ten years or more. The Liberal Party of Canada and the NDP went along for the ride (see Hansard on November 3, 2006).
The reason why Professor Paciocco described absolute prohibitions for conditional sentences as foolish can be found in the following passage:
If conditional sentences were not available for violent offences, judge who were convinced that it would be best to have the offender serve a sentence in the community could simply suspend the passing of sentence and place the offender on probation, as they have always done…It would be ironic if the stricter community sentence option, the conditional sentence, was used for non-violent offenders while the less effective suspended sentence was being used for violent offenders. (61)
Enter Ms. Holly Ann Peters. For Ms. Peters, an aboriginal offender who plead guilty to aggravated assault, Bill C-9 removed the conditional sentence as an option for her sentencing. For Justice Nordheimer of the Superior Court of Justice, who imposed a suspended sentence plus three years probation on Ms. Peters, a period of incarceration was not necessary for the purpose of expressing denunciation or deterrence in her case. For the Ontario Court of Appeal (“ONCA”), who heard the Crown’s appeal of Ms. Peters’ case (see R v Peters, 2010 ONCA 30), the “irony” expressed by Professor Paciocco was front and centre.
There is no right of appeal to the Supreme Court of Canada (“SCC”) and sentencing appeals to the Supreme Court are, in any event, rare. It is not yet known whether Ontario will even apply for leave. That said, this case clearly demonstrates uncertainty in an area of law of public importance.
Ms. Peters, 26 years old at the time of her plea, had attacked her victim without provocation with a broken beer bottle, causing serious and lasting injuries. This was not the first time she had committed an assault. Ms. Peters had a prior conviction and discharge for assault as a young offender. At trial, the Gladue report revealed, among other things, “a difficult and disheartening upbringing in a home of violence and alcohol abuse” (para 7). It was also noted that Ms. Peters might suffer from Fetal Alcohol Syndrome. Evidence led at trial and fresh evidence on appeal indicated Ms. Peters’s potential for rehabilitation, although there were only “sparse” details about her attendance at any programs that treat or provide counselling for alcohol abuse and anger management.
The ONCA Decision
Blair J.A., joined by Feldman J.A., held that the trial judge properly addressed all the relevant principles and factors and that the weight he gave to these should not be interfered with lightly: the sentence “was for him to decide” (paras 16-18). While a custodial sentence may be the sentence often imposed in such cases, it was not the only fit sentence, particularly in light of jurisprudence beginning in R v Gladue,  1 SCR 688 [Gladue]. In short, there was no error in principle, no “significant” misapprehension of the evidence, and the sentence imposed was not manifestly unfit. In the so-called dialogue between the courts and Parliament, this was a metaphoric shot across the bow. In Paciocco’s words, this was as judges have “always done.”
Watt J.A., in dissent, strongly disagreed: “the sentencing decision is cumbered by error and is manifestly unfit” (para 23). No comment will be made about the portions of his judgment dealing with sentencing aboriginal offenders or the trial judge’s apparent misapprehension of the evidence, although these were central to Watt J.A.’s overall conclusions. This commentary will focus exclusively on Watt J.A.’s discussion on whether a probation order can satisfy the objectives of denunciation and deterrence which dominate sentencing objectives in cases of unprovoked, serious violence against another person (para 35).
Watt J.A. observed that the SCC in R v Proulx,  1 SCR 61 [Proulx], carefully distinguished between probation and conditional sentences on the basis that a punitive component is absent from the former and present in the latter. Watt J.A., again relying on Proulx, held that a probationary sentence “lacks a punitive component and fails to provide an adequate ration of denunciation and deterrence” (para 53). He concluded that the three years of probation (with a lengthy series of probationary terms) imposed by Nordheimer J. “lacks any denunciatory or deterrent value and is not faithful to the fundamental principle of sentencing: proportionality” (para 55).
Respectfully, describing a probationary order as lacking any punitive component or that the punitive component it is entirely absent from probationary orders overstates the holding in Proulx. Lamer C.J.C., writing for the Court in Proulx, went to great lengths to distinguish probationary orders from the then-new conditional sentence order. In the effort to demonstrate how a conditional sentence order is “a punitive sanction capable of achieving the objectives of denunciation and deterrence,” Lamer C.J.C. did not conclude that probationary orders, albeit primarily rehabilitative, were entirely lacking of a punitive aspect (paras 22-23, 127). Paragraph 35 of Proulx notes:
In light of the foregoing, it is clear that Parliament intended a conditional sentence to be more punitive than a suspended sentence with probation, notwithstanding the similarities between the two sanctions in respect of their rehabilitative purposes. [emphasis added]
Paragraph 32 also suggests that the Court viewed probationary orders as having at least some “punitive aspect.” Other parts of Proulx, however, seemingly (and confusingly) support the position taken by Watt J.A. (see e.g. paras 37 and 99). To what extent probationary orders have a punitive aspect awaits more fulsome treatment. It does seem pretty clear, however, that probationary conditions can have a punitive aspect (Gladue, para 72).
Aside from this ambiguity, however, Watt J.A. does have a point to make when he states that “the unavailability of a conditional sentence of imprisonment as a sentencing alternative seems to have driven the sentencing judge down to suspend the passing of sentence and impose a period of probation… Its unavailability does not warrant imposition of a period of probation” (para 55). Prof. Paciocco predicted as much.
Also consider paragraph 55 of Proulx:
… At one end of the range, Parliament denied the possibility of a conditional sentence for offenders who should receive a penitentiary term. At the other end, Parliament intended to ensure that offenders who were entitled to a more lenient community measure—such as a suspended sentence with probation—did not receive a conditional sentence, a harsher sanction in this legislative scheme.
If Parliament has (since Proulx) “denied the possibility of a conditional sentence” for a “serious personal injury offence” (an admittedly harsher sentence than a suspended sentence with probation under this legislative scheme), does it not stand to reason that “a more lenient community measure—such as a suspended sentence with probation” would be similarly off the table? Not necessarily. Why? In a word: discretion, which judges fortunately still have (see e.g. section 718.3(2) of the Criminal Code).
Blair J.A. summed it up at para 16:
For the reasons he clearly expressed, and after addressing all of the pertinent principles and factors, the sentencing judge concluded that a period of incarceration was not necessary to meet the needs of denunciation and deterrence and indeed that it would be courterproductive to achieving the restorative purposes that are of particular importance in the case of Aboriginal offenders. This he was entitled to do. The weight to be given to the various sentencing factors—including whether incarceration was necessary to meet the objectives of denunciation and deterrence—was for him to decide.
In this era of increasingly prescriptive sentencing legislation, how will the “delicate art” of a trial judge’s discretion fare? Professor Paciocco suggested that unless great care is exercised with “probation-like terms rather than punishment”, the courts might “lose sight of their sentencing mission” and “underestimate the important of denunciation and retributive aspects of sentencing in the case of violent offenders” (65). This, in turn, will cause politicians to narrow or perhaps abolish non-custodial sentencing options.
As Justice Marc Rosenberg acknowledged in his recent speech, “[I]t is Parliament’s right to be prescriptive.” In doing so, however, Parliament second-guesses those who possess “the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system” (R v M (CA),  1 SCR 500, para 91).