You are on page 1of 18

QUEENS BENCH FOR SASKATCHEWAN

Citation: 2016 SKQB 352


2016 10 25
CRM 7/2016
Swift Current

2016 SKQB 352 (CanLII)

Date:
Docket:
Judicial Centre:

BETWEEN:
DAVID GERALD BOYER
- and HER MAJESTY THE QUEEN

Counsel:
Shannon Prithipaul
Curtis Wiebe

for the appellant


for the respondent

JUDGMENT
October 25, 2016

KALMAKOFF J.

INTRODUCTION
[1]

On June 8, 2016, David Boyer entered a guilty plea in Provincial

Court to one count of operating a motor vehicle while his blood alcohol
concentration exceeded the legal limit, contrary to s. 253(1)(b) of the Criminal
Code, RSC 1985, c C-46. Mr. Boyer had been convicted of similar offences in
2007 and 2011, so the Crown tendered a notice of intention to seek greater
penalty, pursuant to s. 727(1) of the Criminal Code and proceeded by way of
second conviction.

The prosecutor and Mr. Boyers lawyer made a joint submission

for a sentence of 34 days imprisonment, to be served at the Saskatchewan


Impaired Driver Treatment Program [IDTP], followed by six months
probation, and a driving prohibition for three years. The learned Provincial
Court Judge rejected the joint submission, and sentenced Mr. Boyer to 180
days imprisonment, less three days credit for his court appearances on the
sentencing hearing, followed by one year of probation and a driving
prohibition for two years and six months.
[3]

Mr. Boyer appeals his sentence. For reasons that follow, I have

determined that the appeal should be allowed, and Mr. Boyers sentence varied
to bring it into conformity with the joint submission.
FACTUAL BACKGROUND / DECISION UNDER APPEAL
[4]

On September 11, 2015, Mr. Boyer was travelling from Calgary

to Regina on Highway #1. At some point, he ended up on the wrong side of


the road, driving eastbound in the westbound lanes. The RCMP received a
total of five 9-1-1 calls over a period of ten minutes, complaining about Mr.
Boyers vehicle, indicating that it was travelling at high speed, and causing
other drivers to have to swerve to avoid collisions.
[5]

Mr. Boyer drove on the wrong side of the divided highway for 22

kilometres before the police brought him to a stop. When he was stopped at
2:38 p.m., Mr. Boyer appeared to be extremely intoxicated. He could not stand
without holding onto or leaning against something. He was arrested for
impaired operation, and taken back to the Maple Creek RCMP Detachment,

2016 SKQB 352 (CanLII)

[2]

2 -

3 -

280 mg percent.
[6]

The Crown proceeded by summary conviction. At Mr. Boyers

second court appearance, on November 12, 2015, he entered a guilty plea to


the charge under s. 253(1)(b). Sentencing was adjourned to January 14, 2016,
so that a pre-sentence report could be prepared to assess whether Mr. Boyer
was a suitable candidate for the IDTP. The report ultimately concluded that
Mr. Boyer was a suitable candidate for the IDTP, and noted that the first bed
space was available June 10, 2016. Sentencing was then adjourned to June 8,
2016.
[7]

On June 8, 2016, the prosecutor read in the facts, tendered Mr.

Boyers criminal record and the notice to seek greater punishment, and
advised the court that the Crown was proceeding by way of second conviction.
The prosecutor advised the court that, along with Mr. Boyers counsel, the
Crown was jointly recommending a 34 day jail sent ence, to be served at the
IDTP, followed by a six month probation order and three year driving
prohibition.
[8]

Mr. Boyer was represented on that day by an articling student ,

Mr. Catrona, who appeared as agent for Mr. Boyers lawyer, Ms. Prithipaul.
Mr. Catrona confirmed the sentence being recommended was, in fact, a joint
submission.
[9]

The sentencing judge immediately expressed concerns regarding

the joint submission. He pointed out that Mr. Boyer had two prior drinkingand-driving related convictions, one of which was in 2007, for which he

2016 SKQB 352 (CanLII)

where he provided breath samples indicating a blood alcohol concentration of

4 -

sentence and a two year prohibition from driving. The sentencing judge
indicated that the extreme nature of the facts, which included very high
blood-alcohol readings and driving on the wrong side of the highway, gave
him pause regarding the imposition of what would amount to nearly the same
jail sentence Mr. Boyer received for his previous impaired driving conviction.
The sentencing judge set the matter over to the afternoon, then to the next day,
and invited counsel to provide him with further submissions and case law in
support of the joint submission.
[10]

On June 9, Ms. Prithipaul appeared for Mr. Boyer, and made

further submission. She referred to some case law, and also pointed out the
fact that Mr. Boyer had entered an early guilty plea, had taken alcohol
treatment prior to the offence and also that he was of Metis ancestry. She
pointed out Mr. Boyers addictions problems, and referenced the need for
restraint and rehabilitation mentioned in s. 718.2(e) of the Criminal Code. She
also pointed to the gaps between his convictions. The prosecutor, Mr. Wiebe,
also pointed out that, in addition to the treatment-based jail term being jointly
submitted, which was only slightly higher than the mandatory minimum
sentence, the parties were jointly recommending a driving prohibition that was
longer than the minimum. He referenced, generally, that joint submissions are
(Sentence Transcript, p. T39, lines 36-39):
...very important from the Crowns point of view because always in
that discussion parties are giving up something. And to get a joint
submission, certainly there are factors that go into that as far as the
Crown having to provide its case and other considerations that are
taken.

2016 SKQB 352 (CanLII)

received a fine, and another in 2011, for which he received a 30 day jail

He did not, however, refer to any specific considerations that

motivated the Crown toward the joint submission made in this case.
[12]

The sentencing judge gave Ms. Prithipaul the opportunity to

provide the court with more information regarding factors related to Mr.
Boyers aboriginal heritage. Ms. Prithipaul told the court that members of Mr.
Boyers family actually had denied their ethnicity because of the prejudice
they endured. She also advised the court of the substance abuse and violence
that Mr. Boyer witnessed in the home when he was growing up. She also
spoke of Mr. Boyers addiction, and his attempts at rehabilitation.
[13]

The sentencing judge then reserved his decision to the next day.

[14]

On June 10, 2016, the learned Provincial Court Judge returned to

sentence Mr. Boyer. He canvassed the aggravating and mitigating factors in


the case. The aggravating factors he found included:

Mr. Boyers blood alcohol readings were three

and one half times the legal limit;

Mr. Boyer had two previous drinking and

driving convictions on his record, and received a 30


day jail sentence and a 2 year driving prohibition for
the second one;

Mr. Boyers driving, including the fact that he

drove on the wrong side of the road, exceeded the

2016 SKQB 352 (CanLII)

[11]

5 -

6 -

a long highway trip; and

At the time of the offence, Mr. Boyer was

subject to a recognizance that prohibited him from


drinking (although the charge relating to that
recognizance was stayed).
[15]

The sentencing judge also noted a number of mitigating factors,

including:

Mr. Boyer entered a guilty plea early in the

proceedings, cooperated with authorities, and had


been subject to an administrative driving suspension
for nine months by the time sentence was imposed;

There was a gap of nearly four and one half

years since Mr. Boyers previous conviction;

[16]

Mr. Boyer was remorseful; and

Mr. Boyer had a good employment history.

In the end, the sentencing judge refused to accept the joint

submission, finding that it was unfit and contrary to the public interest, in
that it did not address the primary sentencing objectives of deterrence and
denunciation because, to paraphrase, the jail term in question was not of
sufficient length to amount to a significant increase in punishment over Mr.
Boyers previous sentence. The sentencing judge went on to impose a sentence

2016 SKQB 352 (CanLII)

speed limit, and drank to excess while embarking on

7 -

years.
ISSUE
[17]

The issue on this appeal is whether the learned Provincial Court

Judge erred by rejecting the joint submission of counsel, and imposing the
sentence that he ultimately imposed.
JURISDICTION AND STANDARD OF REVIEW
[18]

Subsection 813(a)(ii) of the Criminal Code permits an offender to

appeal against the sentence passed on him or her in a summary conviction


proceeding. Section 822 incorporates the provisions of ss. 683 -689, respecting
appeals in general, to summary conviction appeals.
[19]

Section 687(1) of the Criminal Code defines the role and powers

of the court on an appeal from sentence. It reads as follows:


Powers of court on appeal against sentence
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.

[20]

Decisions

of

sentencing

judges

are

generally

afforded

considerable deference on appeal. Absent an error in principle, failure to


consider a relevant factor, or an overemphasis of the appropriate factors, a

2016 SKQB 352 (CanLII)

of 180 days imprisonment, 1 year probation, and a driving prohibition for 2

8 -

unfit: R v Shropshire, [1995] 4 SCR 227; R v Worm, 2014 SKCA 94, 442 Sask
R 228; R v C.A.M., [1996] 1 SCR 500.
[21]

In R v L.V., 2016 SKCA 74, the Saskatchewan Court of Appeal

provided further guidance regarding the standard to be a pplied by an appellate


court when reviewing a sentence imposed by a trial judge, citing the Supreme
Courts decision in R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089.
[72] Lacasse emphasizes the long-standing notion that, within the
limits of the law, sentencing judges have a broad discretion to
impose the sentences they consider appropriate. An appellate court
may not intervene merely because it would have chosen a different
sentence than did the sentencing judge.
[73] The standard of review for sentence appeals is deferential. In
Lacasse, the Supreme Court indicated that:
(a) an error in principle, a failure to consider a relevant
sentencing factor or an erroneous consideration of an
aggravating or mitigating factor will justify appellate
intervention only when the trial judges decision in that
regard had an impact on the sentence (at para 44);
(b) a court of appeal may not intervene simply because it
would have weighed sentencing factors differently than the
trial judge (at para 49);
c) a court of appeal may not intervene on the ground that it
would have put the sentence in a different range or category.
The choice of sentencing range or of a category within a
range does not itself constitute a reviewable error (t para 51);
and
(d) a sentence may be demonstrably unfit even if the judge
has made no error in imposing it (at para 52).
[74] In the end, therefore, Lacasse indicates that an appellate court
may substitute its own sense of an appropriate sentence for the one
imposed by a trial level court in only two circumstances. The first is

2016 SKQB 352 (CanLII)

Court of Appeal should only intervene to vary a sentence if it is demonstrably

9 -

when the sentence imposed by the trial level court is demonstrably


unfit. The second is when the trial level court made an error in
principle, failed to consider a relevant factor, or gave erroneous
consideration to an aggravating or mitigating factor and that error
had an impact on the sentence.

ANALYSIS
Rejection of a Joint Submission
[22]

Although the Crown is the respondent in this appeal, it also takes

the position that the learned Provincial Court Judge ought to have imposed the
joint submission. While that does not determine the matter, it is a factor I take
into account in making my decision.
[23]

It is settled law that a judge is not bound by a joint sentencing

submission from counsel. Section 606(1.1) of the Criminal Code says that a
judge, in order to accept a guilty plea, must be satisfied (a) that the accused is
making the plea voluntarily, and (b) that the accused understands (i) that the
guilty plea is an admission of the essential elements of the offence, (ii) the
nature and consequences of the plea, and (iii) that the judge is not bound by
any agreement between the prosecutor and defence counsel. Regardless of the
position taken by counsel, it is the duty of the sentencing judge to impose a
proportionate and fit sentence: R v Gibson, 2015 ABCA 41, 319 CCC (3d)
115.
[24]

That said, rejecting a joint submission is a step that a sentencing

judge must not take lightly. In R v Anthony-Cook, 2016 SCC 43 [AnthonyCook], the Supreme Court of Canada said that plea negotiations and joint
sentencing submissions are of great importance to the effective functioning of

2016 SKQB 352 (CanLII)

10 -

began his reasons by saying:


[1] Resolution discussions between Crown and defence counsel are
not only commonplace in the criminal justice system, they are
essential. Properly conducted, they permit the system to function
smoothly and efficiently.
[2] Joint submissions on sentence that is, when Crown and
defence counsel agree to recommend a particular sentence to the
judge, in exchange for the accused entering a plea of guilty are a
subset of resolution discussions. They are both an accepted and
acceptable means of plea resolution. They occur every day in
courtrooms across this country and they are vital to the efficient
operation of the criminal justice system. As this Court said in R. v.
Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, not only do joint
submissions help to resolve the vast majority of criminal cases in
Canada, but in doing so, [they] contribute to a fair and efficient
criminal justice system (para. 47).

[25]

In Anthony-Cook, the issue of what standard should be employed

by a sentencing judge when considering whether to depart from a joint


submission was squarely before the court. In the end, the court determined that
the public interest test is the operative standard, the application of which
Justice Moldaver described as follows:
[32] Under the public interest test, a trial judge should not depart
from a joint submission on sentence unless the proposed sentence
would bring the administration of justice into disrepute or is
otherwise contrary to the public interest. But, what does this
threshold mean? Two decisions from the Newfoundland and
Labrador Court of Appeal are helpful in this regard.
[33] In Druken, at para. 29, the court held that a joint submission will
bring the administration of justice into disrepute or be contrary to the
public interest if, despite the public interest considerations that
support imposing it, 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. And, as stated by the

2016 SKQB 352 (CanLII)

the criminal justice system. Writing for a unanimous Court, Justice Moldaver

11 -

2016 SKQB 352 (CanLII)

same court in R. v. B.O.2, 2010 NLCA 19 (CanLII), at para. 56,


when assessing a joint submission, trial judges should avoid
rendering a decision that causes an informed and reasonable public
to lose confidence in the institution of the courts.
[34] In my view, these powerful statements capture the essence of
the public interest test developed by the Martin Committee. They
emphasize that a joint submission should not be rejected lightly, a
conclusion with which I agree. Rejection denotes a submission so
unhinged from the circumstances of the offence and the offender that
its acceptance would lead reasonable and informed persons, aware of
all the relevant circumstances, including the importance of
promoting certainty in resolution discussions, to believe that the
proper functioning of the justice system had broken down. This is an
undeniably high threshold and for good reason, as I shall explain.

[26]

The court in Anthony-Cook noted that the public interest test is a

stringent one, and requires a very high standard, given the value of plea
negotiations

and

joint

sentencing

recommendations

to

the

effective

functioning of the criminal justice system. At paras. 35-39, Justice Moldaver


discussed the benefits which accused persons, victims, witnesses, counsel, and
the administration of justice generally, all derive from properly conducted plea
negotiations. Accused persons benefit from certainty of outcome, which may
include more lenient sentences than would be received after a trial. Victims
and witnesses benefit from the acknowledgment of responsibility by the
accused, and from being spared the ordeal of testifying. The Crown benefits
from being spared the obligation to prove the case against the accused in
situations of uncertainty, and the system as a whole benefits from cost savings
and savings on the use of strained resources. Because of those benefits, the
standard for rejecting a joint submission must be high. At paras. 40-44, Justice
Moldaver wrote:
[40] In addition to the many benefits that joint submissions offer to
participants in the criminal justice system, they play a vital role in

12 -

contributing to the administration of justice at large. The prospect of


a joint submission that carries with it a high degree of certainty
encourages accused persons to enter a plea of guilty. And guilty
pleas save the justice system precious time, resources, and expenses,
which can be channeled into other matters. This is no small benefit.
To the extent that they avoid trials, joint submissions on sentence
permit our justice system to function more efficiently. Indeed, I
would argue that they permit it to function. Without them, our justice
system would be brought to its knees, and eventually collapse under
its own weight.
[41] But as I have said, for joint submissions to be possible, the
parties must have a high degree of confidence that they will be
accepted. Too much doubt and the parties may choose instead to
accept the risks of a trial or a contested sentencing hearing. The
accused in particular will be reluctant to forgo a trial with its
attendant safeguards, including the crucial ability to test the strength
of the Crowns case, if joint submissions come to be seen as an
insufficiently certain alternative.
[42] Hence, the importance of trial judges exhibiting restraint,
rejecting joint submissions only where the proposed sentence would
be viewed by reasonable and informed persons as a breakdown in the
proper functioning of the justice system. A lower threshold than this
would cast the efficacy of resolution agreements into too great a
degree of uncertainty. The public interest test ensures that these
resolution agreements are afforded a high degree of certainty.
[43] At the same time, this test also recognizes that certainty of
outcome is not the ultimate goal of the sentencing process.
Certainty must yield where the harm caused by accepting the joint
submission is beyond the value gained by promoting certainty of
result (R. v. DeSousa, 2012 ONCA 254, 109 O.R. (3d) 792, per
Doherty J.A., at para. 22).
[44] Finally, I note that a high threshold for departing from joint
submissions is not only necessary to obtain all the benefits of joint
submissions, it is appropriate. Crown and defence counsel are well
placed to arrive at a joint submission that reflects the interests of
both the public and the accused (Martin Committee Report, at p.
287). As a rule, they will be highly knowledgeable about the
circumstances of the offender and the offence and the strengths and
weaknesses of their respective positions. The Crown is charged with
representing the communitys interest in seeing that justice is done
(R. v. Power, [1994] 1 S.C.R. 601, at p. 616). Defence counsel is
required to act in the accuseds best interests, which includes

2016 SKQB 352 (CanLII)

13 -

ensuring that the accuseds plea is voluntary and informed (see, for
example, Law Society of British Columbia, Code of Professional
Conduct for British Columbia (online), rule 5.1-8). And both counsel
are bound professionally and ethically not to mislead the court (ibid.,
rule 2.1-2(c)). In short, they are entirely capable of arriving at
resolutions that are fair and consistent with the public interest
(Martin Committee Report, at p. 287).

[27]

The Supreme Court released its decision in Anthony-Cook on

October 21, 2016. As such, neither the learned Provincial Court Judge nor the
parties had the benefit of Justice Moldavers analysis at the time Mr. Boyer
was sentenced. Prior to the decision in Anthony-Cook, the standard employed
in Saskatchewan was that ...a joint submission should not be rejected unless
the sentence recommended is unfit or otherwise contrary to the public
interest: R v Omoth, 2011 SKCA 42 at para 19, 270 CCC (3d) 337; R v
Webster, 2001 SKCA 72, 207 Sask R 257; R v J.C.N., 2005 SKCA 64, 197
CCC (3d) 381; R v Kasakan, 2006 SKCA 14, 275 Sask R 306; R v B.L., 2008
SKCA 122, 314 Sask R 276; and R v Flanagan, 2012 SKCA 45, 393 Sask R
126).
[28]

In Anthony-Cook, the Supreme Court specifically rejected the

fitness and demonstrably unfit tests in favour of the more stringent


public interest test for rejecting joint submissions. Anthony-Cook says that a
sentencing judge is not free to reject a joint submission simply because he or
she concludes that the sentence being proposed is outside the appropriate
range, or unfit, or even demonstrably unfit. As noted previously, at para. 34,
Justice Moldaver said that, in order to reject a joint submission, a sentencing
judge must conclude that the sentence being proposed is :
...so unhinged from the circumstances of the offence and the offender
that its acceptance would lead reasonable and informed persons,

2016 SKQB 352 (CanLII)

14 -

aware of all the relevant circumstances, including the importance of


promoting certainty in resolution discussions, to believe that the
proper functioning of the justice system had broken down.

[29]

To that end, in my view, Anthony-Cook represents a more

stringent test for rejection than did the previous governing authoritie s in
Saskatchewan.
Application to this Case
[30]

In this case, while the learned Provincial Court Judge followed

the proper procedure for rejecting a joint submission, outlined at paras 49 -60
in Anthony-Cook, he erred in the application of the public interest test. The
sentence which was jointly proposed by the Crown and defence was
undoubtedly lenient, in light of Mr. Boyers criminal record and the
circumstances. Nevertheless, it appeared to have been the product of
negotiations between an experienced Crown prosecutor and defence counsel.
While not expressly stated on the record, it was also implicit from the
circumstances that Mr. Boyers early guilty plea, the rehabilitative steps he
took on his own prior to sentencing and his suitability for the IDTP were al l
factors that the Crown took into account in agreeing to the joint submission.
[31]

In addition to that, defence counsel made the sentencing judge

aware of Mr. Boyers difficult upbringing and his personal circumstances,


which required the sentencing judge to consider s. 718.2(e) of the Criminal
Code, and the Supreme Court of Canadas decisions in R v Gladue, [1999] 1
SCR 688 and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433. While those
factors do not necessarily, on their own, justify a less onerous sentence, th ey
must be properly taken into account. In this case, Mr. Boyers personal

2016 SKQB 352 (CanLII)

15 -

that should have been given some prominence in sentencing.


[32]

The sentencing judge instead chose to focus entirely on

denunciation and deterrence. Considering the aggravated nature of the


circumstances of the offence, he determined that those goals could only be met
through the imposition of a much longer jail term than was jointly proposed.
In the circumstances of this case, however, the sentencing judge fell into error
by failing to give adequate consideration to the principles of rehabilitation and
restraint, and focussing solely on denunciation and deterrence. He also failed
to give adequate consideration to the public interest considerations that
supported imposing the sentence being proposed. In doing so, he erred by
rejecting a joint submission that, while lenient, was not so far off base as to
lead a reasonable and informed person aware of all the rele vant circumstances
to believe that the proper functioning of the administration of justice had
broken down.
[33]

In my view, that is an error in principle which had an effect on

the sentence ultimately imposed and therefore appellate intervention is


justified.
CONCLUSION
[34]

I conclude that the sentence jointly proposed by the Crown and

Mr. Boyers counsel was not one which would bring the administration of
justice into disrepute, nor was it otherwise contrary to the public interest. As
such, the learned Provincial Court Judge erred by rejecting it. Accordingly,
the appeal must be allowed.

2016 SKQB 352 (CanLII)

circumstances clearly suggested that rehabilitation and restraint were factors

Mr. Boyers sentence is varied as follows. He is sentenced to a

term of imprisonment of 34 days, with a recommendation that it be served at


the IDTP. It is my understanding that Mr. Boyer has already served this term
of imprisonment while awaiting his release on bail pending appeal. Therefore,
he is to be credited as having served 34 days, leaving no further time to serve.
[36]

He will also be placed on probation for a period of six months.

The conditions will be as follows


1.

Keep the peace and be of good behaviour;

2.

Appear before the court whenever required to

do so by the court;
3.

Notify the probation officer or court in

advance of any change of the offenders name or


address and promptly notify the probation officer or
court of any change of the offenders employment or
occupation;
4.

Report,

by

telephone,

to

the

regional

coordinator of drug and alcohol services at Swift


Current, Saskatchewan, within seven (7) calendar
days, and follow whatever rehabilitative measures
they may prescribe;
5.

Report to a probation officer at 305 - 350

Cheadle Street West, Swift Current, Saskatchewan,


by telephone at (306) 778-8236 within seven (7)

2016 SKQB 352 (CanLII)

[35]

16 -

17 -

probation officer or designate or the court;


6.

Live at a residence approved by your probation

officer and not change that residence without the


prior written permission of your probation officer or
designate or the court;
7.

Not possess or consume alcohol or drugs that

have not been prescribed for you by a medical doctor


and not enter or be in any place in which the main
purpose is the sale of alcohol, such as bars or liquor
stores;
8.

Participate in an assessment and complete

programming for addictions, which may include outpatient treatment, as told to do so by your probation
officer;
9.

Participate

in

assessment

and

complete

counselling for personal counselling as told to do so


by your probation officer; and
10.

Come to the door of your approved residence

when asked to do so by a probation officer or


designate or police officer who may be checking the
conditions of this order.
[37]

I direct that the provisions of s. 732.1(5) be complied with.

2016 SKQB 352 (CanLII)

calendar days and after that as told to do so by your

Pursuant to s. 259(1) of the Criminal Code, Mr. Boyer is

prohibited from operating a motor vehicle on any street, road, highway, or


other public place, for a period of three years.
[39]

The victim fine surcharge, of $100.00, is confirmed, with the

statutory default period. Mr. Boyer will have until March 31, 2017 to pay it, or
register to work it off under the fine option program.

J.
J.D. KALMAKOFF

2016 SKQB 352 (CanLII)

[38]

18 -