Joint sentencing submission by defence, Crown earns judge’s ire

Judge in a case of assault on a cab driver came close to a rare move of rejecting the submission

Crown counsel got some heat in the Penticton courthouse Wednesday after entering a joint submission that a judge felt was too low. File photo

A Penticton judge appeared within inches of taking extraordinary steps in sentencing a man who pleaded guilty to assaulting a cab driver by going beyond a joint submission.

Joshua Calverly pleaded guilty to a count of possessing a weapon for a dangerous purpose and assault with a weapon Wednesday morning. Crown and defence lawyers came to the courts with a joint submission for a suspended sentence, which would mean no time in custody, but a probation period of 18 months.

On Sep. 13, 2016, Calverly pulled butterfly knife on a man who approached him during a domestic fight, but the knife never was used in that incident, according to Crown counsel John Swanson.

In the other incident, about a week prior, Calverly avoided a cab fare by grabbing the taxi driver’s throat with a rod and running away.

Upon hearing the circumstances of that crime, Koturbash questioned why the joint submission was being put forward.

Swanson, who was stepping in for fellow Crown lawyer Andrew Vandersluys, was unable to give an explanation for why the Crown and defence had come to such a conclusion.

When defence lawyer Michael Patterson’s turn came to address the court, he told Koturbash he hadn’t received any instructions to deviate from that joint submission.

“I wouldn’t if I were you,” responded a stern Koturbash.

“I have no intention of deviating from the agreement,” Patterson replied with a laugh.

He brought up Koturbash’s words from the bail hearing, in which he told Calverly that he would be staying in jail if he were to breach his conditions. He added that since that hearing, Calverly has taken the right steps to remedy his ways.

“In this case, we have evidence that Mr. Calverly is in better health, better frame of mind and has been aiding by all his conditions,” Patterson said. “So, certainly Vision Quest has done a world of good for him.”

But Koturbash maintained an apparent annoyance at the joint submission, which he perceived to be low for the crime, and had no shortage of scathing words for Calverly’s actions.

“When somebody preys on a cab driver in the way that you did by not paying your fare and grabbing him by the throat with a weapon, that is a very serious matter,” Koturbash said.

“Not only do you need to be curbed from doing something like that again, but others also need to get the message that that activity simply can’t be tolerated.”

In order to maintain services like that, Koturbash said the courts need to be tough on people who breach the trust of those taxi drivers.

“I suspect that with the coming of services like Uber that the respective services will provide even less security for the driver, and we call up on these drivers everyday to protect our community.”

That’s because cab drivers provide rides for those intoxicated by drugs and alcohol so those people don’t try to drive home, themselves, he said.

Koturbash noted the exceptionally high threshold in place for judges to reject a joint submission, outlined by a Supreme Court of Canada ruling.

“A rejection of a joint submission is a statement that the sentence proposed is … ‘so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons … to believe that the proper functioning of the system has broken down,’” Koturbash said, quoting the SCC ruling.

“The threshold for me in rejecting a joint submission is a very high one. … I can say without hesitation that I find the joint submission proposed a very challenging one to accept in these circumstances.”

However, Koturbash noted the efforts by Calverly since the offences to correct his ways and his guilty plea, considered a mitigating factor.

“I cannot characterize (the joint submission) as one that is so unhinged from the circumstances of the offence,” he said. “But it is undeniably close to that, sir.”

Koturbash begrudgingly went along with the joint submission, reiterating his statement to Calverly in his bail hearing.


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