R v Mascoe

R. v. Mascoe

[2008] O.J. No. 1559
Ontario Court of Justice — G. Trotter J. | January 9, 2008

Background

Lascelles Mascoe was charged with driving while under suspension. He appeared before Justice of the Peace Lewin, where both Crown and defence counsel made a joint submission for a $3,000 fine. Justice of the Peace Lewin rejected this submission outright, calling it "basically a slap on the wrist" and citing Mascoe's history of not paying fines and "three prior convictions."

Without hearing any submissions about what jail time might be appropriate, Justice of the Peace Lewin imposed 45 days imprisonment. He also summarily rejected a request for intermittent time without hearing submissions on that issue either. Mascoe appealed his sentence to the Ontario Court of Justice.

Issues

1. Did the Justice of the Peace err by rejecting the joint submission without proper analysis?
2. Was the 45-day jail sentence excessive in the circumstances?

Joint Submissions and Procedural Fairness

Justice Trotter found serious problems with how Justice of the Peace Lewin handled the sentencing. First, there appeared to be confusion about Mascoe's criminal record — the Justice of the Peace referred to "three prior convictions" for driving while suspended, but Justice Trotter noted there was actually only one prior conviction for this offence, and it didn't result in jail time.

More importantly, while a judge can reject a joint submission, they must explain why accepting it would bring the administration of justice into disrepute. Justice of the Peace Lewin never provided this crucial analysis. Additionally, after rejecting the fine recommendation, he imposed jail time without hearing any submissions from counsel about what quantum of imprisonment might be appropriate, and rejected intermittent time without hearing submissions on that either.

Excessive Sentence

Justice Trotter found that while jail time was within the appropriate range for this type of repeat offence, 45 days was excessive. Given that Mascoe had only one prior conviction for driving under suspension (not three as suggested), and that previous conviction didn't result in custody, the sentence was disproportionate. Justice Trotter set aside the jail sentence, credited Mascoe with the seven days already served, and substituted a $1,500 fine with six months to pay.

Key Takeaway

Judges must follow proper procedure when rejecting joint submissions and cannot impose sentences without hearing relevant submissions from counsel.

Even experienced justices can make procedural errors that result in successful appeals. If you're facing sentence and the court seems to be ignoring joint submissions or imposing penalties without hearing from your lawyer, these procedural fairness issues can be grounds for appeal.