



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Augustine, 2019 ONCA 119

DATE: 20190215

DOCKET: C65604

Sharpe, Benotto and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Augustine

Appellant

Stephen Whitzman, for the appellant

Dominic
    Bell, for the respondent

Heard: February 7, 2019

On appeal from the sentence imposed on June 25, 2018 by
    Justice Joseph Nadel of the Ontario Court of Justice.

REASONS FOR DECISION


OVERVIEW

[1]

On November 1, 2016, the appellant, Andrew
    Augustine, was driving on a two-lane highway. He attempted to pass two vehicles
    driving in front of him. As he pulled out to pass, he saw an on-coming vehicle.
    Although he was able to avoid that vehicle, he collided with another oncoming
    vehicle. That vehicle, in turn, collided head-on with a third vehicle. Three
    occupants in those vehicles sustained serious injuries; all three vehicles were
    considered write-offs. Mr. Augustine was 21 years old at the time.

[2]

Mr. Augustine pleaded guilty to three counts of
    dangerous driving causing bodily harm, contrary to s. 249(3) of the
Criminal
    Code
.

[3]

The Crown and defence put forward a joint
    submission of a suspended sentence, with 30 months probation and community
    service.

[4]

The sentencing judge did not accept the joint
    submission. Instead, he imposed an intermittent sentence of 75 days
    imprisonment, three years probation, 240 hours of community service, a
    five-year driving prohibition, and a DNA order.

[5]

Mr. Augustine seeks leave to appeal his
    sentence. He advances two main grounds of appeal.

FIRST GROUND: THE JOINT SUBMISSION DID NOT
    CROSS THE THRESHOLD FOR REJECTION

[6]

Mr. Augustine submits the sentencing judge erred
    in principle by departing from the joint submission for a non-custodial
    sentence, arguing that the joint submission did not cross the high threshold
    for rejection. We are not persuaded by this argument.

[7]

The test for rejecting a joint submission is set
    out in
R. v. Anthony-Cook
, 2016 SCC 43, [2016]
    2 S.C.R. 204, at paras. 32 and 34:

·

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; and

·

a joint submission should not be rejected lightly, as a rejection
    denotes that a submission is 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.

[8]

The trial judge gave two reasons why he rejected the joint
    submission. First, he explained that a non-custodial sentence would bring the
    administration of justice into disrepute given the damage [Mr. Augustine]
    caused. Later in his reasons the trial judge stated: I have to impose a
    sanction that I think is appropriate and bearing in mind the damage and the
    injuries to others, I do not think a suspended sentence, even given your youth
    and your contrition, is an adequate remedy given the other factors and
    principles of sentencing.

[9]

The trial judges assessment of the seriousness of the offences
    was supported by the evidence, which showed that the occupants of the other
    vehicles suffered serious injuries:

·

Mr. Evoy suffered multiple rib fractures, a collapsed left lung,
    a crushed sternum in two places, and injuries to one leg. Eight months after
    the collision he still suffered acute pain in his lower back;

·

Ms. Couloigner suffered a perforated bowel that required
    emergency surgery, soft tissue injuries to left knee and lower back and a large
    hematoma to her abdomen;

·

Mr. Knabenschuh, who was in the same car as Ms. Couloigner, suffered
    a fractured sternum, a badly lacerated left forearm, concussion, and bruising.

[10]

Mr. Augustine argues that the sentencing judge
    improperly sourced the information about the victims injuries from the Crowns
    pre-trial conference brief. Although the trial judge did refer in his reasons
    to information about the victims injuries contained in the Crowns judicial
    pre-trial brief, the same information  which was not disputed  was contained
    in the filed victim impact statements, which the trial judge was entitled to
    take into account:
Criminal Code,

s. 722(1).
    In the circumstances, there was no prejudice to Mr. Augustine and we see no
    error.

[11]

As his second reason for rejecting the joint submission, the
    trial judge noted that the principles of denunciation and deterrence are
    relevant to dangerous driving offences committed by a first-time offender and
    otherwise law-abiding citizen, such as the appellant:
R. v. Frickey
,
    2017 ONCA 1024, 22 M.V.R. (7th) 184, at para. 4.

[12]

Taking those reasons together, we see no error in principle in
    the trial judges rejection of the joint submission for a non-custodial
    sentence.

[13]

The trial judge did not accept Mr. Augustines submission in
    support of the joint submission that the Crowns case was not a slam dunk.
    Mr. Augustine contends this amounts to an error. We disagree. The trial judge
    quite properly concluded that in the circumstances this was an obviously
    entertained and entered guilty plea.

SECOND GROUND OF APPEAL: THE SENTENCING PROCESS WAS UNFAIR

[14]

Mr. Augustine submits the procedures followed by
    the sentencing judge were unfair in several respects.

The opportunity to make further submissions

[15]

Mr. Augustine contends that in the circumstances
    the sentencing judge should have afforded counsel the opportunity to make further
    submissions to address his concerns before he passed sentence. That is exactly
    what the sentencing judge did.

[16]

Mr. Augustine entered pleas of guilty at the
    November 3, 2017 hearing. The trial judge was aware that counsel intended to
    make a joint submission for a sentence that would not impose a jail term, and
    at the next attendance on January 24, 2018, he stated that he had told counsel
    he could not countenance a sentence that did not involve some modest amount of
    time in custody. The sentencing hearing was adjourned to June 25, 2018.

[17]

At that hearing, counsel confirmed that
    previously the trial judge had indicated he was bothered by the proposed
    joint submission. Defence counsel stated:

I think its crystal clear that not only have
    you not committed, youve made it clear that you are or were and, I suspect,
    still would be struggling with what the right thing to do is here and we have
    both approached it is in that interim time on that basis.

[18]

Counsel then made their arguments in support of
    the joint submission, including references to the case law. The trial judge
    followed the procedure for entertaining further submissions set out in
Anthony-Cook
.

Opportunity to withdraw guilty pleas

[19]

Mr. Augustine submits that the sentencing judge
    erred by failing to allow him to withdraw his plea:
Anthony-Cook
, at para. 58. In the circumstances, we see no unfairness in the
    process followed by the trial judge.

[20]

As the trial judge noted in his reasons, at the
    judicial pre-trial held before Mr. Augustine entered his pleas, the pre-trial
    judge came to feel that he could not accept a non-custodial sentence. As a
    result, the case was transferred to the trial judge, who advised counsel and
    they were aware that I was not necessarily going to accept their joint
    submission.  The record discloses that Mr. Augustine entered his pleas knowing
    that the trial judge might well not accept the joint submission on sentence.

[21]

Mr. Augustine was represented by counsel
    throughout. At no point during the sentencing process did counsel ask for leave
    to withdraw the guilty pleas. Accordingly, we see no unfairness in the
    procedure followed by the trial judge.

Prejudging the sentence

[22]

At the hearing of the appeal Mr. Augustines
    counsel advanced an argument not made in his factum or identified in his notice
    of appeal. He submitted that statements made by the sentencing judge at the
    January 24, 2018 attendance demonstrated that he had already made up his mind
    about the sentence.

[23]

The January 24, 2018 attendance was to set a
    date for the sentencing hearing. Mr. Augustine appeared through an agent for
    his counsel. During the course of the brief attendance the sentencing judge
    addressed one of the victims, Ms. Couloigner, stating: You may remember that
    there had been a resolution effected in this matter where the Crown was going
    to ask to agree with the defence for a sentence that would not impose jail. I
    told the lawyers, I couldnt countenance that, so this young man is going to
    spend some modest amount of time in custody, undoubtedly.

[24]

We do not accept appeal counsels submission
    that these statements disclose that the sentencing judge had pre-judged the
    case. Mr. Augustines trial counsel did not advance such an objection at the
    June 25, 2018 sentencing hearing. On the contrary, as set out in para. 17
    above, defence counsel confirmed his understanding of the discussions up until
    that time in chambers or on the record, stating that it was crystal clear
    that the trial judge had not committed on the sentence.

DISPOSITION

[25]

For these reasons, Mr. Augustine is granted leave to appeal his
    sentence but his appeal is dismissed.

Robert
    J. Sharpe J.A.
M.L. Benotto J.A.
David Brown J.A.


