Successful appeal raises questions of deterrence, denunciation

Law360 Canada (June 12, 2024, 3:04 PM EDT) --

John L. Hill

According to a CBC report, the Ontario government has announced its intention to add hundreds of beds to an already overloaded jail system by reopening intermittent detention centres at correctional centres in London and Toronto and adding up to 200 new staff.

All this aligns with a “get tough on crime” policy that will become a significant election issue federally and provincially. Is our criminal justice system broken and in need of revamping? A recently decided case in the Ontario Court of Appeal, R. v. McCool, 2024 ONCA 457, demonstrates that law enforcement in Ontario can hand out stiff sentences. But does such toughness protect the public?

Angel Rae-Ann McCool, 36 years old at the time of this offence, had a troubled background. In her youth, she had trouble with the Children’s Aid Society. As an adult, she incurred several criminal convictions, including failing to comply with probation orders, failing to attend court and failing to comply with a recognizance.

Her latest scrape with the law happened in the early morning of July 2, 2021. Police had spotted her car parked outside a house “known to the police.” The police were also familiar with Angel McCool and recognized her name when a licence plate was checked. The patrol officer knew her driver’s licence was suspended; he had arrested her within the previous year. When Angel McCool entered her vehicle and began to drive away, the police car’s roof lights were activated. The police officer attempted to grab the woman but became entangled with the suspect and fell to the ground as she drove away. The suspended driver led the police on a dangerous, high-speed chase that ended when the car she was driving went into a ditch.

McCool was found guilty. Defence counsel asked for a 12- to 24-month conditional sentence or a 90-day intermittent custodial sentence. The trial judge accepted that the accused had experienced life struggles but had rehabilitative potential. She had spent four months locked up in 2017. A sentence of six months in custody, an 18-month probation order and a five-year driving prohibition was imposed. The Crown had asked for two and a half years in the penitentiary. When that was not accepted, the Crown appealed.

The Court of Appeal recognized that two sentencing principles set out in s. 718 of the Criminal Code designed to protect society and instill respect for the law include denunciation and deterrence. The importance of rehabilitation is also included.

Ordinarily, an appeal court will defer to the sentencing judge’s assessment except when there is a failure to consider relevant factors or if there is an erroneous consideration of aggravating or mitigating factors (R. v. Lacasse, 2015 SCC 64; R. v. Friesen, 2020 SCC 9).

In this case, the trial judge erred in failing to consider earlier periods of incarceration longer than four months imposed on earlier. Instead of applying the “jump principle” and imposing a lengthier sentence than she had served before, the six-month sentence imposed by the trial judge was shorter than an earlier sentence served.

The trial judge also erred in mischaracterizing her criminal record. Although she had not previously been convicted for fleeing from police, she was a repeat offender for crimes involving defiance of authority. She had also been convicted of obstructing police earlier.

The Court of Appeal also found that a six-month sentence reflected an unreasonable departure from the principle of proportionality. This undermines the justice system’s credibility in the eyes of the public and diminishes respect for the rule of law. The court declared that the matter cried out for a penitentiary term. The trial judge’s sentence, the appeal court found, was demonstrably unfit.

McCool was an eight-time suspended driver without insurance who drove her car without regard to potential harm. Her action jeopardized the health and safety of a police officer. Thus, a denunciatory sentence of two-and-a-half years in prison is called for. However, since she had already served a six-month sentence, the penitentiary term was reduced to 18 months less a day with other penalties remaining.

This emphasis on denunciation and deterrence may play well with the public’s increasing demand that offenders be treated more harshly, but it ignores another sentencing principle of rehabilitation.

Had the Crown been successful in having Angel McCool sent to the penitentiary, the likelihood is that rehabilitative programming would have been provided, including psychiatric counselling for childhood trauma; the Court of Appeal’s mechanical approach ensures placement in an overcrowded provincial institution with little or no programming available. The public that the Code’s sentencing provisions strive to protect will not benefit from such a revision to the sentence. It will be another body requiring additional jail space and increased staffing.

 John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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