Her Majesty the Queen v. Francis [Indexed as: R. v. Francis]
79 O.R. (3d) 551
[2006] O.J. No. 1287
Court of Appeal for Ontario,
Weiler, Armstrong and Juriansz JJ.A.
April 5, 2006
Criminal law -- Sentencing -- Pre-trial custody -- Trial judge not erring in declining to give accused credit for pre- trial custody on 2:1 basis -- Trial judge's reasons for sentence making it patently obvious that he saw accused as posing serious danger to society and as unlikely to receive parole -- Trial judge's departure from normal practice not constituting unreasonable exercise of his discretion.
The accused was convicted of manslaughter and robbery. On the manslaughter charge he was sentenced to 15 years' imprisonment and, for the robbery of 11 patrons at "Just Desserts", he received concurrent periods of imprisonment ranging from ten to 15 years. Taking into consideration the five years and three months spent by the accused in pre-trial custody, the trial judge gave the accused an enhanced credit of seven years towards his sentences. The accused appealed, arguing that the trial judge should have credited him with two days for each day spent in pre-trial custody, and that if he was going to depart from the usual 2-for-1 credit for pre-trial custody, the trial judge was obligated to explain why he did so and had not done so. Alternatively, the accused asked for the same credit for pre-trial custody that his co-accused received for his robbery convictions, or 1.67-for-1.
Held, the appeal should be dismissed.
As a general practice, trial courts give 2-for-1 credit for adult pre-trial custody. In departing from that general practice, the trial judge correctly declined to accept the Crown's submission that the conduct of the accused's lawyer had prolonged the trial and that, as a result, the accused ought not to receive enhanced pre-trial credit. The appropriate manner to deal with counsel is through the disciplinary procedures of the Law Society or by citing counsel for contempt. Two factors which can justify a departure from giving 2-for-1 credit for pre-trial custody are: (1) whether the incarceration history of the accused indicates that the accused is unlikely to obtain early parole; and (2) whether the accused is seen to pose a serious danger to society. The trial judge's reasons for [page 552] sentence made it patently obvious that he saw the accused as posing a serious danger to society and that he would not likely receive parole. His reasons for departing from the practice of awarding 2-for-1 credit were readily ascertainable, and his departure from the normal practice was not an unreasonable exercise of his discretion. The trial judge's reasons also contained a justification for giving the accused less credit for pre-trial custody than was given to his co-accused, i.e., that the co-accused had a much less significant criminal record than did the accused. That justification was not unreasonable. The amount of pre-trial custody credited to the co-accused on the robbery convictions was, in any event, somewhat illusory, as he was also serving a life sentence for first degree murder. The trial judge's reasons did not disclose any error in principle or consideration of inappropriate factors, nor was the resulting sentence unfit or clearly unreasonable.
APPEAL by the accused from the sentence imposed by Trafford J. of the Superior Court of Justice on December 15, 1999.
Beauchamp v. R., [2005] J.Q. no 7164, 2005 QCCA 580, [2005] R.J.Q. 1595, J.E. 2005-1248, 203 C.C.C. (3d) 551, 36 C.R. (6th) 189, 68 W.C.B. (2d) 138 (S.C.); R. v. Pangman, [2001] M.J. No. 217, 2001 MBCA 64, [2001] 8 W.W.R. 10, 156 Man. R. (2d) 120, 154 C.C.C. (3d) 193, 50 W.C.B. (2d) 88 (C.A.), consd Other cases referred to R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555, 205 C.C.C. (3d) 488, 69 W.C.B. (2d) 12 (C.A.); R. v. G. (W.C.), [2004] B.C.J. No. 2463, 2004 BCSC 1758, 191 C.C.C. (3d) 213 (S.C.); R. v. Kozy (1990), 1990 2625 (ON CA), 74 O.R. (2d) 545, [1990] O.J. No. 1586, 41 O.A.C. 27, 58 C.C.C. (3d) 500, 80 C.R. (3d) 59 (C.A.); R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, 194 N.R. 321, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269; R. v. Mills, 1999 BCCA 159, [1999] B.C.J. No. 566, 133 C.C.C. (3d) 451, 23 C.R. (5th) 384 (C.A.); R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, 142 Man. R. (2d) 161, 182 D.L.R. (4th) 1, 249 N.R. 201, 212 W.A.C. 161, [2000] 4 W.W.R. 21, 140 C.C.C. (3d) 449, 49 M.V.R. (3d) 163, 30 C.R. (5th) 1 (sub nom. R. v. P. (J.K.D.)); R. v. Rezaie (1996), 1996 1241 (ON CA), 31 O.R. (3d) 713, [1996] O.J. No. 4468, 112 C.C.C. (3d) 97, 3 C.R. (5th) 175 (C.A.); R. v. Sawchyn, 1981 ABCA 173, [1981] A.J. No. 26, 124 D.L.R. (3d) 600, [1981] 5 W.W.R. 207, 60 C.C.C. (2d) 200, 22 C.R. (3d) 34 (C.A.); R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52, 129 D.L.R. (4th) 657, 188 N.R. 284, 102 C.C.C. (3d) 193, 43 C.R. (4th) 269; R. v. T.B., 2006 4487 (ON CA), [2006] O.J. No. 584, 78 O.R. (3d) 721, 78 O.R. (3d) 731, 68 W.C.B. (2d) 489 (C.A.); R. v. Thompson, 2000 5746 (ON CA), [2000] O.J. No. 2270, 133 O.A.C. 126, 146 C.C.C. (3d) 128, 46 W.C.B. (2d) 459 (C.A.); R. v. Wust, [2000] 1 S.C.R. 455, [2000] S.C.J. No. 19, 2000 SCC 18, 184 D.L.R. (4th) 385, 252 N.R. 332, 143 C.C.C. (3d) 129, 32 C.R. (5th) 58 (sub nom. R. v. W. (L.W.)); R. v. Young, [2004] M.J. No. 188, [2005] 2 W.W.R. 255, 186 C.C.C. (3d) 219, 2004 MBCA 69 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 11(b) Criminal Code, R.S.C. 1985, c. C-46, ss. 718.3 [as am.], 719 [as am.] Authorities referred to Manson, A., The Law of Sentencing (Toronto: Irwin Law, 2001)
Paul Burstein, for appellant. Brian McNeely, for respondent. [page 553]
The judgment of the court was delivered by
WEILER J.A.:--
Overview
1On April 5, 1994, Georgina Leimonis, a patron at the "Just Desserts Café" in Toronto, was fatally shot. Over five years later, in December 1999, the appellant was convicted of manslaughter in connection with her death and of the robbery of 11 other patrons during the same transaction. Leaving aside the consideration of pre-sentence custody, the sentencing judge determined that the appropriate sentence for the manslaughter conviction was 15 years, for the robbery of Filipo Pastore, 15 years, for the robbery of Nicole Ford, 12 years, and for all the other robberies, ten years, with all sentences concurrent to one another. The appellant does not take issue with the sentencing judge's determination in this regard.
2Taking into consideration the five years and three months pre-sentence custody the appellant had served, the sentencing judge gave the appellant an enhanced credit of seven years towards his sentences. The narrow issue in this sentence appeal is whether the sentencing judge erred in exercising his discretion not to credit the appellant with two days for each day of pre-sentence custody. The appellant submits that if the sentencing judge was going to depart from the usual 2-for-1 credit for pre-sentence custody, the judge was obligated to explain why he did so, that he did not do so and that the absence of a good reason for departing from 2-for-1 custody is an error in principle justifying this court's intervention. Accordingly, the appellant seeks leave to appeal his sentence and, if the appeal is allowed, asks that the sentences be reduced to time served [See Note 1 at the end of the document].
3In the alternative, the appellant asks this court to credit his pre-sentence custody on the same basis that the co- accused [page 554] Lawrence Brown was credited or 1.67-for-1. If pre-sentence custody had been credited as 1.67-for-1, the appellant's sentence on the manslaughter charge and the robbery of Mr. Pastore would have been reduced to six years and three months instead of eight years.
4I would grant leave to appeal sentence but I would dismiss the sentence appeal. The reasons for sentence do permit this court to review the factors on which the sentencing judge exercised his discretion. My review of those reasons leads me to conclude that the sentencing judge did not err in principle or take into consideration inappropriate factors in exercising his discretion to grant less than 2-for-1 credit for each day of pre-sentence custody and that the sentences he imposed are not clearly unreasonable. Accordingly, I would dismiss the appeal. My reasons follow.
Credit for Pre-sentence Custody Requires the Exercise of Discretion
5Section 719(3) of the Criminal Code, R.S.C. 1985, c. C- 46, provides that in determining the sentence to be imposed on a person, a judge "may" take into account pre-trial custody.
6As the section is clearly discretionary, an appellate court should review a sentencing judge's exercise of discretion under s. 719(3) of the Criminal Code on the same basis that it reviews a judge's overall exercise of discretion to impose a sentence that is not a minimum sentence pursuant to s. 718.3(1) and (2). As stated in R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, 105 C.C.C. (3d) 327, at para. 90:
Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence imposed is demonstrably unfit.
7The failure to take pre-sentence custody into consideration is an error in principle. As Arbour J. held in R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, [2000] S.C.J. No. 19, 143 C.C.C. (3d) 129, at para. 41, pre-sentence custody is part of the punishment following the offender's conviction. If pre- sentence custody is not taken into account, the offender receives a longer sentence than that stated to be imposed. In line with this reasoning, the absence of any explanation as to why time spent in pre-sentence custody has not been taken into account is an error in principle: see R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555, 205 C.C.C. (3d) 488 (C.A.), at para. 37.
Recognizing a Practice
8While pre-sentence custody must be taken into account, the courts have resisted detracting from the judicial discretion given [page 555] in s. 719(3) by endorsing a mechanical or mathematical formula for crediting pre-sentence custody: see Wust, supra, at para. 44. Besides not according with the statutory discretion in s. 719(3), the use of a mathematical formula would undermine the principle of individualized sentencing.
9While recognizing that a mathematical formula is inappropriate, the appellant submits that pre-sentence custody is ordinarily credited at the enhanced level of two days for each day spent in custody prior to trial.
10The respondent does not agree that pre-sentence custody is ordinarily credited on a 2-for-1 basis and relies on this court's decision in R. v. T.B. (2006), 2006 4487 (ON CA), 78 O.R. (3d) 721, [2006] O.J. No. 584 (C.A.), in support of its position. In that case the appellant argued that for every day spent in pre- sentence custody, the sentencing judge should give a young offender enhanced credit of either two days or 1.5 days as opposed to the 1-for-1 credit given by the sentencing judge. Thus, the issue was whether enhanced credit for pre-sentence custody should have been given. Lang J.A. held that while enhanced credit of 1.5 days may have been a starting point, the other factors considered by the sentencing judge brought the credit given of 1-for-1 within the ambit of his discretion. The issue was not, as here, the extent of enhanced custody for an adult offender.
11Recently, this court recognized the practice of giving adults 2-for-1 credit in Downes, supra, a case in which the court held that stringent bail conditions should be taken into account as a relevant mitigating circumstance. Rosenberg J.A. stated at para. 25:
Thus, as a rule [See Note 2 at the end of the document], trial courts will give 2:1 credit for pre-sentence custody and occasionally enhanced credit where the circumstances under which the offender has spent his time in jail have been particularly onerous. And in some cases, trial courts will give less than 2:1 credit because of the circumstances of the custody or the reasons for the detention.
(Citations omitted) [page 556]
12The wide recognition given to the practice of 2-for-1 credit was noted in R. v. Pangman, 2001 MBCA 64, [2001] M.J. No. 217, 154 C.C.C. (3d) 193 (C.A.), wherein Steele J.A. observed at para. 64 that,
The Supreme Court of Canada, as well as the Manitoba, Quebec and Ontario Courts of Appeal have all acknowledged that, while there is no hard and fast rule, nor should there be, generally 2:1 credit is given for pre-sentencing custody time.
13I accept that as a general practice trial courts give 2- for-1 credit for adult pre-sentence custody.
The Rationale for Enhanced Credit for Pre-Sentence Custody
14Three considerations inform the rationale for giving enhanced credit for pre-sentence custody. They are: (1) that other than for life sentences, legislative provisions for parole eligibility and statutory release do not take into account time spent in pre-sentence custody; (2) that there are few rehabilitative, educational or retraining programs available in detention centres; and (3) that the conditions in detention facilities are often more crowded and more onerous than in correctional facilities.
Reasons
15The appellant submits that while the sentencing judge was entitled to depart from the practice of 2-for-1 credit for pre-sentence custody, he was obligated to provide reasons for doing so and did not.
16Reasons for sentence serve the function of enabling the accused, the public and the reviewing court to see that the sentencing judge has fulfilled his or her mandate in considering the various factors pertinent to the exercise of discretion and has not acted unreasonably in the exercise of his or her discretion.
17A lack of transparency concerning the reason or justification for not considering a relevant factor or, in this case, for not following a recognized practice may be considered to violate the principle of fairness recognized by Laskin J.A. in R. v. Rezaie (1996), 1996 1241 (ON CA), 31 O.R. (3d) 713, [1996] O.J. No. 4468, 112 C.C.C. (3d) 97 (C.A.), at p. 721 O.R., p. 105 C.C.C. See also R. v. Thompson, 2000 5746 (ON CA), [2000] O.J. No. 2270, 146 C.C.C. (3d) 128 (C.A.), at para. 81.
18Reviewing courts have emphasized the great deference that must be given to the sentencing judge because the sentencing judge has had the advantage of presiding over a trial and of seeing and hearing all of the witnesses. If the reasons for imposing a particular sentence, including the extent of credit given for pre-sentence custody, are not ascertainable from the reasons as a whole, the reviewing court is not obliged to give the sentencing [page 557] judge the same deference and latitude it would otherwise give. No reasons or inadequate reasons in justification of a sentence increases the likelihood of the reviewing court concluding that a variation of a sentence is required because the sentence is "not fit" or is "clearly unreasonable", pursuant to R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52, 102 C.C.C. (3d) 193. That said, lack of reasons, or inadequate reasons, will not necessarily result in a variation of the order made. See, for example, Shropshire, supra, at para. 51, where the Supreme Court held that the failure to give reasons for extending the period of parole ineligibility does not, of itself, automatically result in a variation of the period of parole ineligibility, and M. (C.A.), supra, where the unexplained departure from the general practice respecting the amount of credit for pre-sentence custody did not result in a variation of the sentence of 25 years. The overall fitness of the sentence is what the reviewing court must determine.
Considerations Respecting Credit for Pre-Sentence Custody in this Case
19The appellant submitted that the sentencing judge erred in principle by considering a number of irrelevant factors and overemphasizing relevant factors. I disagree that the sentencing judge erred in principle and will explain my conclusion by first discussing the irrelevant factors and then the relevant ones.
Irrelevant considerations
20In its submissions to the sentencing judge as to the amount of credit to be given for pre-sentence custody, the Crown submitted that the conduct of the appellant's lawyer had prolonged his trial and that, as a result, the appellant ought not to receive enhanced pre-sentence credit. At the appeal before us, the Crown renewed those submissions and relied on the sentencing judge's ruling concerning the appellant's s. 11(b) application, which is reported at [1998] O.J. No. 4682, 107 O.T.C. 281 (Gen. Div.). In his ruling, the sentencing judge held that approximately 70-75 per cent of the delay in bringing the case to trial was attributable to the defence. He found several of the defence counsel, including the appellant's counsel (not counsel on this appeal), engaged in misconduct at the preliminary inquiry. In addition, a number of applications that were devoid of any merit were made by the defence, such as the issuance of a subpoena for the Attorney General of Ontario.
21Fortunately, the sentencing judge does not appear to have adopted the Crown's submission. The factors the sentencing [page 558] judge listed in arriving at his sentence make no mention of counsel's conduct. In Beauchamp, supra, the Quebec Court of Appeal, concerned with the improper conduct of counsel for the Hells Angels Nomads, nevertheless held at para. 66 that a sentencing judge may not refuse to grant an enhanced credit for pre-sentence custody because of defence counsel's improper conduct in the absence of proof that the accused knew his counsel was acting in an unacceptable manner and was adopting these delaying tactics. The Beauchamp decision emphasizes the importance of full answer and defence and highlights the difficulty of an accused person assessing his lawyer's tactics as well as the division of responsibility for delay in a trial involving multiple accused. The appropriate manner to deal with counsel is through the disciplinary procedures of the Law Society or by citing counsel for contempt. See also R. v. Kozy (1990), 1990 2625 (ON CA), 74 O.R. (2d) 545, [1990] O.J. No. 1586, 58 C.C.C. (3d) 500 (C.A.), and R. v. Sawchyn, 1981 ABCA 173, [1981] A.J. No. 26, 60 C.C.C. (2d) 200 (C.A.).
22Crown counsel also submitted that, as the appellant had attended his trial most of the time he was in pre-sentence custody, just as an out-of-custody person would, he did not endure as much harsh time at the detention centre and enhanced credit should not be given for pre-sentence custody. This submission was also rejected in Beauchamp. The court pointed out that while an out-of-custody accused would also attend his trial, at lunchtime the out-of-custody accused can go out into the fresh air and at the end of the day can go home. Again, there is no indication that the sentencing judge gave effect to this submission in his reasons.
Relevant considerations
23Two of the factors articulated at p. 211 C.C.C. in Pangman, supra, as justifying a departure from giving 2-for-1 credit for pre-sentence custody that are relevant here are: (1) whether the incarceration history of the accused indicates that the accused is unlikely to obtain early parole; and (2) whether the accused is seen to pose a serious danger to society. Similarly, in R. v. Mills, 1999 BCCA 159, [1999] B.C.J. No. 566, 133 C.C.C. (3d) 451 (C.A.), at para. 48, the court commented that it would be inappropriate to give double time to an accused with a bad record who would not get parole because "the accused would obtain compensation for a loss he is unlikely to suffer". At the same time the court noted that since very few inmates are held beyond their statutory release date, or two-thirds of their sentence, the sentencing judge "may properly consider giving more than straight time". See also [page 559] R. v. Young, 2004 MBCA 69, [2004] M.J. No. 188, 186 C.C.C. (3d) 219 (C.A.), at para. 20, which is to the same effect.
24The factors considered by the sentencing judge in his reasons preceding his decision to give less than 2-for-1 credit relate to: (1) the planning of the crime; (2) the appellant's knowledge that the double-barrelled sawed-off shot gun was loaded; (3) the fact that the appellant and Mr. Brown worked in concert to achieve their robbery objectives; (4) the fact that the appellant escalated the level of violence when he "viciously and brutally" assaulted Mr. Pastore and others; (5) the fact that most if not all of the violence by the appellant was gratuitous; (6) the fact that the appellant tore a patron's purse from her hands as he held her by the throat, struck another patron on the head with an open palm after the patron said that he did not have any money, hit yet another patron, Mr. Pastore, on the forehead with something that he had in his hand and also hit him in the eye because he felt he was not complying quickly enough with his demand for money; (7) the fact that many of the patrons were very frightened and continued to suffer adverse effects approximately five years after the crimes were committed; and (8) the fact that Mr. Francis resisted Mr. Brown's attempts to pull him away from Mr. Pastore so they could leave and stated, "I want to kill this guy, I'm not leaving." It was at this point that a patron remonstrated with Mr. Francis and Mr. Brown raised the shotgun and intentionally discharged it into the crowd of people from where the comment had come. The appellant's assault on Mr. Pastore was a substantial factor in the decision by Mr. Brown to shoot the gun. At all times, Mr. Francis knew that Mr. Brown was willing to discharge the gun to maintain control of the patrons. The sentencing judge also took into consideration that at the time of his conviction, the appellant had a significant criminal record which included six assault convictions (including assaults upon police officers), as well as several drug-related convictions, and that the level of violence of his crimes had escalated over time. It was at this point in his reasons that the sentencing judge indicated that, in the circumstances, he was declining to give the appellant 2- for-1 credit for his time in custody but would credit him for seven years (effectively applying a 1.33-for-1 ratio).
25The sentencing judge's reasons for sentence make it patently obvious that he saw the appellant as posing a serious danger to society and that he would not likely receive parole. The reasons for departing from the practice of awarding 2-for-1 credit for pre-sentence custody are readily ascertainable and the sentencing judge did not have to repeat them in relation to this factor. His departure from the normal practice was not an unreasonable exercise of his discretion. [page 560]
26The appellant's alternative submission is that the sentencing judge should have credited the appellant with the same pre-sentence custody as that awarded to his co-accused Mr. Brown or 1.67-to-1. Immediately after crediting the appellant with seven years pre-sentence custody, the sentencing judge commented that although Mr. Brown had a criminal record, it was much less significant than the appellant's. Thus, here again, the reasons of the sentencing judge contain a justification and are not unreasonable. I would not give effect to the appellant's submission that the sentencing judge erred in not using the same formula as he used with Mr. Brown to determine the appellant's pre-sentence custody. The amount of pre- sentence custody credited to Mr. Brown on the robbery convictions is, in any event, somewhat illusory as he is also serving a life sentence for first degree murder.
27The appellant also submits that the sentencing judge took into consideration irrelevant factors, in that he commented, "There has been no expression of remorse by Mr. Francis." Whether, following a person's trial, he or she chooses to express remorse at the sentencing hearing is a valid consideration because it is an acknowledgment of the harm caused on the part of the offender and is relevant to the offender's prospects of rehabilitation and restoration to the community. See, for example, R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, at para. 113. The lack of any expression of remorse at the sentencing hearing cannot, however, be considered to be an aggravating factor. The sentencing judge's reasons do not suggest that the appellant's absence of remorse should be treated as an aggravating factor. He merely indicated that an expression of remorse was absent.
Disposition
28Applying these principles to the present appeal, I am of the opinion that the reasons of the sentencing judge do not disclose any error in principle or consideration of inappropriate factors, nor was the resulting sentence unfit or clearly unreasonable.
29Although the appellant has placed fresh evidence of his good behaviour and work habits since his statutory release before the court and invited us to vary the sentence, I am of the opinion that this evidence is more properly the consideration of the parole board at his upcoming hearing.
30Thus, while I would grant leave to appeal sentence, I would dismiss the appeal.
Appeal dismissed.
Notes
Note 1: Originally the appellant appealed both his conviction and sentence. A lengthy delay then ensued while transcripts were obtained. Recently, the conviction appeal was abandoned and the appeal proceeded as a sentence appeal. The fresh evidence filed indicates that the appellant was granted statutory release on April 14, 2005. Since his release, he had been living with his mother at home and working steadily. However, on January 4, 2006, his release was suspended and he was reincarcerated on suspicion of trafficking in drugs and guns. He is currently in Joyceville Penitentiary awaiting a disciplinary hearing before the parole board. A week following the suspension of the appellant's release, the confidential source who had provided the information leading to the appellant's reincarceration contacted the Peel Parole office and recanted.
Note 2: Contrary to the appellant's submission, I do not read Rosenberg J.A.'s use of the words "as a rule" here to mean that it is a legal rule that 2-for-1 credit should be given. My understanding is that the words are used in the sense that one would say "often applied" as Arbour J. did in Wust, supra, or "as a general practice". The Court of Appeal for Quebec in Beauchamp v. R., [2005] J.Q. no 7164, 2005 QCCA 580 and the Court of Appeal for British Columbia in R. v. G. (W.C.), 2004 BCCA 593, [2004] B.C.J. No. 2463, 191 C.C.C. (3d) 213 (S.C.), refer to the giving of enhanced credit for pre-sentence custody at the rate of 2-for-1 as a "practice". See also Allan Manson, The Law of Sentencing (Toronto: Irwin Law, 2001) at 110, to the effect that courts commonly give 2:1 credit for pre-sentence custody.
