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JOINT SUBMISSIONS AND BEING THE VICTIM OF INTIMATE PARTNER VIOLENCE AS A MITIGATING FACTOR IN SENTENCING

In R. v. Naslund, 2022 ABCA 6, January 12, 2022, the accused pleaded guilty to the offence of manslaughter.  She killed her intimate partner (Miles).  A joint submission seeking the imposition of a period of eighteen years of imprisonment was presented.  The joint submission was endorsed.  The Court of Appeal noted that the “marital relationship involved many incidences of physical and emotional abuse, including extreme controlling behaviour by Miles towards Ms. Naslund” (at paragraph 102).

The accused appealed from sentence, arguing that the sentence was excessive and the joint submission should not have been accepted by the sentencing judge.

The appeal was allowed. A majority of the Court of Appeal concluded that the  sentence imposed should be reduced to a period of nine years of imprisonment.

The Majority:

The majority noted that “[n]otwithstanding the obvious benefits of joint submissions, sentencing judges may nevertheless depart from them” (at paragraph 56).  The majority held that “the same ‘public interest’ test applies regardless of whether the joint submission is being accepted or rejected” (at paragraph 61).

The majority concluded that because the sentencing judge did not consider whether “an 18-year sentence was proportionate” he was not in a position to determine “whether the sentence was sufficiently ‘unhinged from the circumstances of the offence and the offender’ (at paragraph 94).

Being the Victim of Intimate Violence as a Mitigating Factor in Sentencing:

The majority held that “a woman who has been subjected to domestic violence is entitled to raise that history as ‘a relevant factor in evaluating her subsequent actions’ outside of self-defence. The psychological effects of domestic abuse are likewise relevant to sentencing – in particular, the question of moral blameworthiness, a component of the proportionality analysis. This explains why, as we shall see, sentences in these circumstances are almost invariably on the lower end of the spectrum” (at paragraph 98).

The majority concluded that “it is beyond time for this Court to explicitly recognize that cases of battered women killing abusive partners involve unique circumstances that must be considered by the sentencing judge, particularly where “battered woman syndrome” is involved” (at paragraph 115).

Conclusion:

In reducing the sentence to 9 years of imprisonment, the majority concluded that “the 18-year joint submission proposed by counsel and accepted by the sentencing judge in this case 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’. As a result, it must be rejected” (at paragraph 173).

The Dissent:

Justice Wakeling, dissenting, would have dismissed the appeal and affirmed the sentence imposed.  Justice Wakeling suggested that the “test that a sentencer must meet before imposing a sentence at odds with a joint-submission sentence is very onerous and will seldom be met. As a result, a joint-submission sentence is almost immune from appellate review” (at paragraph 272).

Justice Wakeling concluded that the affirmation of the sentence imposed would not bring the administration of justice into disrepute (at paragraphs 327 and 328):

There is no doubt whatsoever in my mind that reasonable members of the public, aware of all relevant facts, would not believe that Ms. Naslund’s sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. I am satisfied that the notional reasonable observer would conclude that Ms. Naslund has no good reason to complain about this bargain. It has probably saved her many years of prison time.

The notional reasonable observer would understand that this is not a battered-woman syndrome case. Experienced defence counsel with access to Ms. Naslund’s medical records and her family and friends expressly rejected the battered-woman syndrome as a relevant consideration with respect to the severity of her sentence. He must have had a good reason for adopting this position. Ms. Naslund informed us in oral argument that she does not challenge the quality of the legal advice her counsel provided.