sentence and 12 months’ probation — Criminal Records Act, R.S.C.
1985, c. C-47, s. 6.1(1)(a).
The accused pleaded guilty in 2016 to assaulting his wife. A handwritten notation on his criminal record indicated that he had received an absolute discharge in
2011 for a previous assault on his wife. The trial judge declined to grant the
accused a second discharge on the basis that the first discharge had not deterred
him from committing another domestic assault. The trial judge imposed a suspended sentence with 12 months’ probation. The summary conviction appeal court
allowed the accused’s appeal, holding that the trial judge erred in considering the
accused’s discharge. She remitted the matter to the Ontario Court of Justice for
a sentencing hearing. The Crown appealed.
Held, the appeal should be allowed in part.
Section 6.1(1)(a) of the Criminal Records Act precludes the disclosure of “the
existence and fact” of an absolute discharge to anyone beyond one year following
its imposition, unless the prior approval of the Minister of Public Safety and
Emergency Preparedness is obtained. No such approval was obtained in this case.
The trial judge therefore erred in taking the accused’s discharge into account.
However, 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”.
The notice of appeal to the summary conviction appeal court did not indicate
whether the appeal was taken under s. 813 or s. 830 of the Criminal Code. However, a sentence appeal in summary conviction proceedings is necessarily taken
under s. 813(a)( ii). The summary conviction appeal court judge therefore had
the authority to vary the sentence or dismiss the appeal, but not the authority to
remit the matter to the trial court for a sentencing hearing. The remittal order
was set aside.
Section 718.2(a)( ii) of the Code, which was in force when the accused was
sentenced, makes abuse of an offender’s spouse or common law partner an aggravating factor. That, combined with the fact of the admitted 2011 assault, rendered
a conditional discharge inappropriate. A suspended sentence and a 12-month
probation order were imposed.
Cases referred to
R. v. Bevis,  N.S.J. No. 351, 2000 NSCA 125, 188 N.S.R. (2d) 163,
150 C.C.C. (3d) 125, 48 W.C.B. (2d) 6
Statutes referred to
Criminal Code, R.S.C. 1985, c. C-46, ss. 2 [as am.], 687, 718.2(a)( ii) [as am.], Part
XXVII [as am.], ss. 812(1)(a), 813 [as am.], (a), ( ii), 822(1), (4) [as am.], (6),
829 [as am.], (1), 830 [as am.], (1), 831 [as am.], 832 [as am.], 833 [as am.],
834 [as am.], (1), (b), 835 [as am.], 836 [as am.], 837 [as am.], 838 [as am.],
839 [as am.]
Criminal Records Act, R.S.C. 1985, c. C-47, ss. 6.1(1)(a), 7.2 [as am.]
APPEAL from the decision of Wein J., 2017 ONSC 7585 (S.C.J.)
allowing the appeal from sentence entered on December 6, 2016 by
Pugsley J. of the Ontario Court of Justice.
Rebecca De Filippis, for appellant.
Nicolas M. Rouleau and Daniel Ciarabellini, for respondent.