IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Accused, Karry Vernon Corbett, has pled guilty to one count of assault contrary to section 266 of the Criminal Code. The offence took place on October 21, 2016 in Abbotsford. It is of the type often referred to as a “no touch” assault. No one was actually struck by the Accused. However section 265(1)(b) of the Criminal Code defines an assault to include when a person “attempts or threatens, by an act or gesture, to apply force to another person” and that other person reasonably believes that the Accused has the ability to complete the act.

[2]           The Crown and Defence counsel have agreed on what the appropriate sentence for this offence should be and have joined together in recommending what is known as a “joint submission” for a two month conditional sentence order. The court is not forced to accept a joint submission and at one time, a sentencing judge could reject a joint submission if it was unfit and not in the public interest. More recently, in a case known as R. v. Anthony-Cook 2016 SCC 43, the Supreme Court of Canada clarified how a court should address a joint submission.

[3]           The Supreme Court said that, for the most part, the trial judge should approach the joint submission on an “as‑is” basis. Some give-and-take is necessary to confront the volume of criminal charges, and unreasonable micromanaging by trial judges will only serve to bog down the system and send more cases to trial, taking up more time, utilizing more resources and inconveniencing witnesses. Where experienced counsel are involved, integrity and sound judgement should be presumed and the court is generally entitled to presume that there are good reasons for the consensus that has been reached.

[4]           There will be times however when the sentencing judge believes that the joint submission is unduly harsh or unduly lenient. Just as Crown and Defence counsel do, the sentencing judge plays an important role in the system of checks and balances and it is not his or her function to “rubber stamp” joint submissions if something doesn’t smell right. It is at this point that the Supreme Court of Canada has said that the court must apply what is known as the “public interest test”. Under this test, judges “should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise not in the public interest.

[5]           One former Supreme Court of Canada Justice has said that “a reasonable joint submission cannot be said to ‘bring the administration of justice into disrepute’. An unreasonable joint submission, on the other hand, is surely ‘contrary to the public interest’.” While this may sound like circular logic, that judge went on to explain that if “the sentence jointly proposed falls within the acceptable range and the plea is warranted by the facts admitted” then it is a reasonable joint submission. The public interest test presumes fair and reasonable public sentiment that is not based purely on vengeful or inflamed sentiment, one that balances a desire for the rehabilitation of offenders with the need to make amends to those who have been the victims of crime.

[6]           The Supreme Court said that the sentencing judge may inquire about the circumstances leading to the joint submission, and, in particular, any benefits obtained by the Crown or concessions made by the accused. This recognizes that where an accused has given up his right to a trial in reliance that a joint submission will be respected, such a consideration must not be discarded lightly. Often a joint submission is reached because of weaknesses in the Crown case, difficulty with witnesses, or in order not to inconvenience those witnesses or force them to relive the offences.

[7]           If, after consideration of these factors, the sentencing judge still has concerns that the joint submission does not satisfy the public interest test, he or she should notify counsel of any concerns and invite further submissions on those concerns. If the trial judge’s concerns are not alleviated, the Supreme Court of Canada has said that the judge may allow the accused to withdraw his or her guilty plea. The practical result of this change in the law is that now, rejection of a joint submission with most often send the matter back to trial.

[8]           In the case now before the court, the offence was video-recorded and that video received considerable publicity in the news media. The Crown did not play that video at the sentencing hearing and I have not viewed the video, in keeping with the principle that a fair hearing should confine itself to the evidence presented and should not include outside influences or investigation that an Accused is not permitted to answer. According to the submissions of counsel, the victim of the offence is a member of the local Indo-Canadian community. In the video, the Accused was recorded as making a number of racially offensive comments to the victim, the nature of which would offend not only members of the community that the remarks were directed to, but to all reasonable members of the community of Abbotsford and to all reasonable persons generally.

[9]           As was pointed out by both counsel, it was not the Accused’s decision to publicize his racially-offensive outburst so prominently, and counsel suggest that the subsequent publicity that the remarks have received should not be held against the Accused. With respect, I do not agree. We live in an age where almost everyone has a cell phone and almost every cell phone has the capacity to video-record conduct. In addition to the moral responsibility for all of us to treat our fellow citizens with respect, the ubiquitous nature of video-recording is an additional reason for people to conduct themselves properly and lawfully in public. Now, more than ever, the rest of the world is watching what we all do.

[10]        There are four aspects of this matter that give rise to concerns as to whether or not the joint submission in this case satisfies the public interest test. They are (a) the prominence of the case; (b) the lack of remorse or insight shown by the Accused; (c) the record of the Accused; and (d) the facts as presented by the Crown, which underscored the worst aspects of this case and which shadowed any mitigating factors. It is especially troubling that while the Accused has repeatedly expressed remorse for his actions, his expressions of remorse are always couched in terms of how being caught for this offence has inconvenienced his life, rather than any appreciation of or willingness to acknowledge the effect that his conduct may have had on others.

[11]        There are other aspects of this case which support the imposition of the joint submission. The first is that when he became aware that he was wanted for this offence, the Accused promptly reported to police, avoiding the need for the expenditure of police manpower. The second is the Accused’s conduct while on bail for this matter. He has been on a recognizance for a significant period of time and no breaches have been alleged. I am also taking into account that the Accused has pled guilty to a “no-touch” assault. Whatever fault he has demonstrated, and he has demonstrated a lot, he at least had the ability to refrain from the infliction of striking any blows and his restraint in this regard is one factor that the Crown relies in on coming to the joint submission.

[12]        Most important to my acceptance of the joint submission is the attitude of the victim of the offence. He has declined his option of providing a victim impact statement and has expressed a charitable and kind attitude towards the Accused. He has informed the Crown that it was never his intention for the Accused to receive the public shaming that he has subsequently received. He is not interested in any sort of public pillorying of the Accused, but rather has expressed the desire that the Accused “gets help”.

[13]        Practically speaking, a rejection of the joint submission would simply mean that this matter would return to the trial list. It would invite an application for delay, and if the trial proceeded, it would require the victim to be further inconvenienced by having to testify at trial, by being subjected to cross-examination, and by inviting further public display of the humiliating manner in which he was treated, compounding the offence given to those that his remarks were directed to. At this point in time, the reasons for accepting the joint submission outweigh the reasons for its rejection.

[14]        Hindsight is almost always unfair to those subjected to it, and I don’t intend any criticism of any of the justice system participants when I suggest that this may be used as a learning experience. In future, an offence of this nature can provide an opportunity to craft a sentence that involves the making of amends to the Indo-Canadian community and even to involve that community’s leadership into some form of victim-offender reconciliation process, so that the Accused can learn the real reason why his conduct was damaging, both to himself and to others. It can also help to relegate petty racist sentiments to the graveyard of history where they belong and afford the opportunity to acknowledge the value of all members of this community, without consideration of ethnicity or religion.

[15]        The joint submission for a conditional sentence of two months, followed by probation for one year, on the terms crafted by counsel, will be pronounced, along with the ancillary orders. The only modification will be that the counselling condition will allow for participation in a victim-offender reconciliation program, only with the consent of the victim of this offence.