OCA rethinks sentencing appeals

The issue arose after Claudio Montesano, represented in the Court of Appeal by Nicolas Rouleau of Nicolas M. Rouleau PC in Toronto and Daniel Ciarabellini, a criminal lawyer in Toronto, pleaded guilty in 2016 to a charge of assaulting his wife.

Montesano asked Justice Bruce Pugsley of the Ontario Court of Justice, who presided over the summary conviction proceeding, for a discharge. Pugsley refused, citing a handwritten notation on Montesano’s criminal record indicating that he had in 2011 obtained an absolute discharge for a previous assault against his wife. Instead, Pugsley imposed a suspended sentence with a 12-month probationary period.

Montesano appealed to the Ontario Superior Court of Justice. There, in December 2017, Justice Bonnie Wein, in her capacity as a judge of the Summary Convictions Appeal Court, concluded that Pugsley had erred in considering the earlier discharge. It was inadmissible, she ruled, because it had been expunged from Montesano’s record pursuant to the Criminal Records Act. Wein then remitted the matter back to the OCJ for sentencing.

The Crown sought and obtained leave to appeal Wein’s decision on two grounds: first, that Wein had no jurisdiction to remit the matter to the OCJ for a new sentencing hearing; and second, that her interpretation of the CRA was too broad.

The jurisdictional issue — not considered in any previous jurisprudence — arises because there are two avenues for appeals in summary conviction proceedings. The first is found in s. 813(a)(ii) of the Criminal Code. This section specifically provides for an “appeal against a sentence” but limits the appeal judge to dismissing the appeal or varying the sentence.

But s. 830(1) provides another avenue of appeal from summary conviction proceedings “on grounds of legal and jurisdictional error” where the parties agree to hear the appeal based on the transcript or an agreed statement of facts. In this case, s. 829 specifically allows the appeal judge “to remit the matter to the summary conviction court.”

The difficulty is that s. 830(1), which allows appeals from a “conviction,” a “judgment,” a “verdict of acquittal,” a “verdict of not criminally responsible by reason of mental disorder,” a “verdict of unfit to stand trial” and “other final order or determination” does not specifically include “sentence” as a matter subject to appeal.

Although Montesano’s notice of appeal did not specify the right of appeal invoked, it did state that the appeal was one against “sentence” and that the relief sought was a variation of the sentence imposed at trial.

Consequently, the court suggested that, going forward, counsel ought to reference the jurisdictional basis for their summary conviction sentence appeals “so that the scope of appellate relief available is readily ascertainable.”

Arguably, that leaves open the question of whether s. 830 (1) provides a jurisdictional basis for sentence appeals.

“What the court really said in Montesano was, ‘Nice try, fellows, but this really is a sentence appeal and we’re going to assume that you proceeded by the usual route, which means there’s no jurisdiction for a new sentencing hearing,” says criminal lawyer Daniel Brodsky of Toronto. “In future, however, if you want us to refer a sentencing back to the summary conviction court, let us know in the notice of appeal that that’s the route you’re going and we’ll give you the opportunity to convince us that we have the power to do that and should do it on the facts of your case.”

On the evidentiary issue, the court ruled that evidence of the earlier discharge was inadmissible, but that “the Crown was entitled to put before the court the factual reality that the incident on which there has been a plea is not the first incident.”

That ruling, says Frank Addario, a Toronto criminal lawyer, is consistent with the discharge legislation.

“The existence of a prior incident involving domestic abuse is relevant to whether a subsequent discharge is in the public interest,” he says.