



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Montesano, 2019 ONCA 194

DATE: 20190312

DOCKET: C65933

Watt, Huscroft and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Claudio Montesano

Respondent

Rebecca De Filippis, for the appellant

Nicolas M. Rouleau and Daniel Ciarabellini, for the
    respondent

Heard: January 29, 2019

On appeal from the decision of the Summary Convictions
    Appeal Court dated December 18, 2017 by Justice Bonnie J. Wein of the Superior
    Court of Justice with reasons reported at 2017 ONSC 7585, allowing the appeal
    from sentence entered on December 6, 2016 by Justice Bruce E. Pugsley of the
    Ontario Court of Justice.

REASONS FOR DECISION

[1]

The Crown appeals from the order of the Summary
    Conviction Appeal Court judge (the appeal judge), granting the respondents
    appeal from sentence.

[2]

On June 30, 2016, the respondent pleaded guilty
    to one count of assault against his wife. There was only one entry on the
    respondents criminal record for a dated and unrelated mischief
    charge. However, a handwritten notation indicated that in 2011 the
    respondent had obtained an absolute discharge for a previous assault against
    his wife. No further details were provided.

[3]

The trial judge determined that it would be
    inappropriate to grant the respondent a second discharge, given that the first
    discharge had not deterred him from the commission of the second domestic
    assault against the same victim, and imposed a suspended sentence with a 12-month
    probationary period.

[4]

The appeal judge concluded that the trial judge
    erred in considering the respondents discharge. She held that it was
    inadmissible because it had been expunged from his record pursuant to s.
    6.1(1)(a) of the
Criminal Records Act
, R.S.C., 1985, c. C-47

(the CRA)
. The Crown was entitled to put before the court the factual reality
    of the incident  the fact that this was not the first incident  but nothing
    more. The appeal judge allowed

the
    respondents appeal and remitted the matter to the Ontario Court of Justice (the
    OCJ) for sentencing.

[5]

Leave to appeal was granted by this court on
    October 3, 2018.

[6]

The Crown submits that the appeal judge erred in two
    respects. First, her interpretation of s. 6.1(1)(a) is overly broad because the
    CRA applies only to records maintained by the federal government, not courts or
    police, and does not establish an all-encompassing rule governing the
    admissibility of evidence on sentencing. All reliable and relevant evidence is
    admissible for sentencing purposes. Second, the Crown argues that the appeal
    judge had no jurisdiction to remit the matter to the OCJ for a new sentencing
    hearing.

[7]

The appeal is allowed in part for the reasons that
    follow.

A.

The Disclosure Issue

[8]

Section 6.1(1)(a) of the CRA provides as follows:

No record of a discharge under section 730 of
    the
Criminal Code
that is in the custody of
    the Commissioner or of any department or agency of the Government of Canada
    shall be disclosed to any person, nor shall the existence of the record or the
    fact of the discharge be disclosed to any person, without the prior approval of
    the Minister, if

(a) more than one year has elapsed since
    the offender was discharged absolutely.

[9]

In our view, the language of the provision is
    plain. Section 6.1(1)(a) of the CRA precludes the disclosure not only of the
    record, but also of the existence and fact of an absolute discharge beyond one
    year following its imposition, unless the prior approval of the Minister of
    Public Safety and Emergency Preparedness is obtained.

[10]

The time-limited relevance of discharges may be
    contrasted with the treatment of record suspensions under s. 7.2 of the CRA.
    Unlike absolute discharges, which may be considered without ministerial
    approval only for a period of one year after imposition, record suspensions are
    automatically revoked upon a subsequent conviction, whenever it occurs, and so may
    be disclosed without approval.

[11]

The prohibition on disclosure of discharges is
    complete. Section
6.1(1)(a) of the CRA
precludes
    disclosure not to selected persons but to
any person
. It is of no moment
    whether the record remains in provincial record bases; it cannot be disclosed
    without the Ministers prior approval, and that approval was not obtained in
    this case prior to sentencing by the trial judge. The appeal judge properly
    concluded that the trial judge erred in considering the respondents absolute
    discharge, although 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.

B.

The Remittal Issue

[12]

The second ground of appeal relates to the disposition ordered by
    the appeal judge. After determining that the sentencing judge had erred in
    taking into account the previous discharge in imposing sentence, the appeal
    judge remitted the case to the OCJ for sentencing.

[13]

The appellant says that the appeal judge had no authority to
    remit the case to the OCJ for sentencing. On appeals from sentence in summary
    conviction proceedings, an appeal judge, like this court in sentence appeals in
    indictable proceedings, may only dismiss the appeal or vary the sentence within
    the limits prescribed by law.

[14]

The respondent contends that the argument advanced by the
    appellant assumes that the appeal from sentence was taken under s. 813(a)(ii)
    of the
Criminal Code
, thus making s. 822(6) the statutory provision
    that governs disposition of the appeal and forecloses the remittal order made
    by the appeal judge. But the notice of appeal makes no mention of s. 813 as the
    right of appeal invoked. And since the remittal order could be made under s.
    834(1)(b) of the
Criminal Code
on an appeal taken under s. 830(1), we
    should assume that this was an appeal taken under s. 830(1), rather than under s.
    813(a)(ii). At all events, we should determine a fit sentence on appeal.

[15]

Part XXVII of the
Criminal Code
governs summary
    conviction proceedings including appeals from decisions rendered at summary
    conviction trials. It contains two sections providing rights of appeal: ss. 813
    and 830(1).

[16]

Under s. 813(a), a defendant in summary conviction proceedings
    may appeal to the appeal court as defined in s. 812(1)(a):

(i) from a conviction
    or order made against him;

(ii) against a
    sentence passed on him; or

(iii) against a verdict of
    unfit to stand trial or not criminally responsible on account of mental
    disorder;

[17]

The dispositive authority on appeals from sentence, at least
    those not heard by trial
de novo
under s. 822(4), is that of s. 687 of
    the
Criminal Code
. This is so because s. 822(1) incorporates s. 687 by
    reference. As a result, the authority of an appeal judge on appeals from
    sentence under s. 813(a)(ii), unless the sentence is one fixed by law, is to
    consider the fitness of the sentence and:

i. vary the sentence within the
    limits prescribed by law for the offence of which the accused was convicted; or

ii. dismiss
    the appeal.

[18]

The summary conviction appeal court has no authority to remit a
    sentencing determination to the trial court on appeals from sentence under s.
    813(a)(ii).

[19]

Under
    s. 830(1), a party to summary conviction proceedings may appeal against a:

·

conviction

·

judgment

·

verdict of acquittal

·

verdict of NCRMD

·

verdict of unfit to stand trial

·

other final order or determination

on
    grounds of legal or jurisdictional error. The term sentence nowhere appears
    in s. 830(1) or elsewhere in ss. 829-838, the portion of Part XXVII that deals
    with Summary Appeal on Transcript or Agreed Statement of Facts.

[20]

The dispositive authority of the appeal court as defined in s.
    829(1) of the
Criminal Code
for appeals taken under s. 830(1) is in s.
    834(1), which provides:

When a notice of appeal is filed
    pursuant to section 830, the appeal court shall hear and determine the grounds
    of appeal and may

(a)

affirm, reverse or modify the
    conviction, judgment or verdict or other final order or determination, or

(b)

remit the matter to the summary
    conviction court with the opinion of the appeal court,

and may make any other order in
    relation to the matter or with respect to costs that it considers proper.

[21]

In
R. v. Bevis
, 2000 NSCA 125, 150 C.C.C. (3d) 125, the
    appellant, convicted of breach of a recognizance in summary conviction
    proceedings, appealed the sentence imposed upon him to the Nova Scotia Court of
    Appeal. As in this province, the definition of superior court of criminal
    jurisdiction in s. 2 of the
Criminal Code
and thus for the purposes
    of appeals under s. 830(1), includes the court of appeal. The Nova Scotia Court
    of Appeal dismissed the appeal. The substance of their reasons for doing so
    appears in paras. 8-9 of the reasons given by Hallett J.A.:

The avenue for an appeal from sentence in summary conviction proceedings
    is to the Supreme Court of Nova Scotia in the first instance.  Had
    Parliament intended that there be an appeal directly to the Nova Scotia Court
    of Appeal from sentence in a summary conviction proceeding, it would have so
    provided in s. 830.  The absence from s. 830 of an expressed right to
    appeal sentence directly to the Nova Scotia Court of Appeal speaks clearly as
    to Parliaments intention.  In my opinion, the words other final order or
    determination of a summary conviction court as they appear in s. 830, read in
    context, do not include within their meaning a sentence imposed in a summary
    conviction proceeding.

This being a
    sentence appeal, the appellant ought to have appealed the sentence to the
    Supreme Court of Nova Scotia pursuant to the right he had by reason of s.
    813(a)(ii).

[22]

In this case the notice of appeal to the summary conviction
    appeal court does not specify the right of appeal the appellant invokes. That
    said, the appeal is against sentence and the relief sought is a variation of
    the sentence imposed at trial. In these circumstances, we are satisfied that
    this appeal was taken under the specific authority of s. 813(a)(ii). It follows
    that the appeal judge had the authority to dismiss the appeal or vary the
    sentence within the limits provided by law, but
no
authority to remit
    the matter to the trial court.

[23]

In future cases it may be helpful to include in the notice of
    appeal a brief reference to the jurisdictional basis for the appeal so that the
    scope of appellate relief available is readily ascertainable. We consider such
    a course a matter of good practice, not a condition precedent to a valid notice
    of appeal.

C.

Determining the sentence

[24]

The respondent submits that regardless of the decision on the second
    ground of appeal, for the sake of judicial economy, this court should determine
    the appropriate sentence rather than remitting it for a rehearing.

[25]

We agree.

[26]

We
    accept that the respondent has made progress since the assault: he has
    expressed remorse; has taken steps to address his alcohol abuse; has completed
    a Partner Assault Response Program; and has reconciled and attended counselling
    with his wife.

[27]

However, s. 718.2(a)(ii) of the
Criminal Code
, which was in force in 2016 when the respondent was sentenced,
    makes abuse of an offenders spouse or common-law partner an aggravating factor. This,
    combined with the fact of his admitted 2011 assault against his wife, renders a
    conditional discharge inappropriate in these circumstances, despite the
    mitigating effect of his guilty plea.

[28]

Accordingly,
    we allow the appeal in part and set aside the appeal judges order remitting
    this matter for a sentencing hearing. We impose a suspended sentence and 12-month
    probation period in accordance with the terms set out by the trial judge. The
    other terms and conditions of the sentence imposed by the trial judge remain in
    place.

David Watt J.A.

Grant Huscroft J.A.

L.B. Roberts J.A.


