R v Todoruk, 2019 MBCA 100 (CanLII)

N McRae - law student

Jan 28, 2020

5 min read

Updated: Oct 25

Author: N McRae

Definition of Conditional Discharge

The accused sought an appeal from the decision of the sentencing judge to grant a conditional discharge. A conditional discharge is alternative sentence which the Court, in its discretion, can grant for certain offences to which a person has pled guilty. The details of a conditional discharge are found in section 730(1) of the Criminal Code (Canada)1. Per section 730 (1), a condition discharge may be granted except for offences which are prescribed a minimum sentence by law, or offences which are punishable by 14 years imprisonment or life. The Court must also consider if a conditional discharge is in the best interests of the accused and that granting one would not be contrary to the public interest.

Grounds for Leave to Appeal

Leave for an appeal is not always given to anyone who seeks it. There are three criteria recently stated in R v. Rule[2] that generally must be met for leave to be granted: grounds for the appeal must involve a question of law, the matter must raise an arguable case of substance, and there must be some exceptional aspect of the case to warrant an second hearing. This application was based on the ground that the sentencing judge had failed to consider fully both the effects of an automatic license suspension and whether a conditional discharge would be a more appropriate punishment. The accused had failed to meet both the first and second requirements for leave to appeal to be granted. While disputing that the sentencing judge had properly considered the circumstances would be a question of law, the Court of Appeal was unconvinced, holding that the sentencing judge’s reasons had clearly demonstrated that she had considered the suspension and interests of the accused.

The third potential ground for leave to appeal to be granted is the requirement that there is an exceptional aspect of the case sufficient to warrant a second hearing. This requirement is exceptionally difficult to sufficiently fulfill, as it speaks to the validity of conclusions drawn in a previous appeal. At the point of the accused applying to the Court of Appeal, his case had already been heard by both the trial judge and his sentence had been appealed to the summary conviction appeal (SCA) judge. The exceptional aspect requirement in essence is a requirement that the case at hand be unique or complex enough that it is more likely a second court would continue any errors of the first.

Whether this case satisfies that criteria is not stated by the court of appeal judge, as the merits of the appeal are dismissed by the first two judges, but it is unlikely that it would have had the court of appeal considered it. The usual reasons for allowing a second appeal, as in R v. R.W.M., are that the case raises matters concerning the administration of justice or the development of the law. The case at hand seems to be a rather common situation and is unlikely to meet that standard.

Emphasis on Deterrence and Denunciation

Determining the potential risk to the public interest of granting a conditional discharge requires the Court to consider the purpose of the punishment for the specific offence. For the offence in question, the principles of deterrence and denunciation are considered to be the primary concern for sentencing. The accused argued that these principles, and an over-emphasis on them by the sentencing judge, led to the Court not granting him conditional discharge. This is, however, not supported in the case law of the offence, which the sentencing judge had correctly examined.

Although deterrence and denunciation may result in some manner from a suspended sentence, these principles would not be applied to a significant enough degree to satisfy the purpose of the sentence. The sentencing judge referred to the decision in R. v. Foianesi which recognised that generally, when the primary sentencing principles are deterrence and denunciation, a conditional discharge will not be appropriate. This principle arises from the understanding that deterrence and discharge are two sentencing principles which are opposed to each other. Sentences which are focused on deterrence of future offences are, by necessity, harsher than those that do not; conditional discharge being at the other end of the sentencing spectrum as the most lenient of sentence options.

How could courts be expected to reconcile giving lenient sentences for offences which are recognized as severe enough to warrant greater punishment? There can be reasonable debate as to which offences deserve the special consideration of deterrence and denunciation, but in the case at hand, that question is settled. As the offence in question does have deterrence and denunciation as its primary sentencing principles, the sentencing judge had correctly applied the law by not granting a conditional discharge to the accused.

Influences on Sentencing Judge

Having dealt with the possible error in principle of not granting a conditional discharge, the sentencing judge had to determine an appropriate sentence for the accused. At this stage, the personal circumstances of the accused were able to mitigate severity of the sentence that was given. The judge considered the accused’s young age, remorse, the potential to rehabilitate him, lack of criminal record, and a number of reference letters which demonstrated that the accused’s actions were quite out-of character for him, before passing her sentence.

There was one negative factor which likely influenced the sentence; the accused had previously served a one-year suspension of his license. Both courts held to the principle in R. v. PES, that deference in sentencing must be given to the original court unless there has been an error in law or a demonstrably unfit sentence. Appeals courts grant this deference due to their disadvantage of, generally, not hearing evidence themselves, and instead being in a position where they must rely on the facts as outlined in the trial court’s judgement. The standard for determining whether a sentence is unfit is whether the sentence “unreasonably departs from the principle of proportionality taking into account the individual circumstances of the offence and the offender…”[3]. Both the SCA judge and the appeal court judge reviewing the application for leave to appeal agreed that the sentencing judge had properly considered the circumstances of the offence, and that the sentence was not unfit. Accordingly, leave to appeal was not granted.