R. v. Gillis, 2009 ONCA 312
COURT OF APPEAL FOR ONTARIO
Weiler, Gillese and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Robert Paul Gillis
Appellant
John R. Mann III, for the appellant
Peter Scrutton, for the respondent
Heard and released orally: April 9, 2009
On appeal from the conviction entered on November 30, 2006, and the sentence imposed on March 19, 2007, by Justice R.M. Thompson of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
1The appellant was convicted by a jury of: (1) sexual assault with a weapon; (2) unlawful confinement; and (3) theft under $5,000. He was 37 years old at the time of the offences and had a very lengthy criminal record. These convictions represent his 28th, 29th and 30th convictions.
2The complainant, a complete stranger to him, was 15 years old. After convincing her to drive with him to a secluded area outside the small town in which she lived, he bound her hands with a bungee cord, held a knife to her throat and took her into the bush where he kept her for approximately ten hours. In that time, he sexually assaulted the complainant some 14 times. The assaults included repeatedly forcing her to perform oral sex and numerous acts of unprotected anal and vaginal intercourse.
3When he was finished, the appellant stole all the money that the complainant had in her purse.
4One of the appellant’s prior convictions is for a sexual assault with very similar facts.
5The appellant was given an effective sentence of 10 years in addition to 30 months of pre-sentence custody credited at a rate of approximately 1:5 to 1. The sentence is composed of 9 ½ years for sexual assault with a weapon; 2 ½ years for unlawful confinement, consecutive to the other sentences; and 6 months for theft under $5,000, consecutive to the other sentences.
6The sentencing judge ordered that parole be delayed, with the result that the appellant must serve half of the sentences imposed on counts 1 and 2 before he can be released on full parole.
7The appellant seeks leave to appeal sentence and, if granted, asks that the sentence be varied so that the sentences are concurrent rather than consecutive, “2 for 1” pre-sentence custody credit is given, and the order for delayed parole is quashed. He raises three grounds of appeal.
8First, the appellant contends that the sentencing judge erred in ordering consecutive sentences because the offences were all part of the same transaction.
9We disagree. The decision to order concurrent or consecutive sentences should be treated with the same deference that appellate courts owe to sentencing judges concerning the length of sentences ordered: R. v. McDonnell 1997 CanLII 389 (SCC), [1997], 1 S.C.R. 948 at para. 46. It was open to the sentencing judge to order consecutive sentences because the offences “constitute invasions of different legally protected interests”: see R. v. Gummer (1983), 1983 CanLII 5286 (ON CA), 1 OAC 141 (C.A.) at para. 13.
10Second, the appellant argues that he should have been given 2 for 1 credit for his pre-sentence custody and that the sentencing judge failed to consider evidence as to the conditions of the Owen Sound jail where the appellant served his pre-sentence custody.
11The amount of credit to be given for pre-sentence custody is a matter within the discretion of the sentencing judge. One of the considerations in granting 2 for 1 credit for pre-sentence custody is that such time does not count towards parole. The sentencing judge gave a cogent reason for reducing the usual 2 for 1 credit to approximately 1.5 to 1 credit, namely, that the appellant was unlikely to qualify for early parole. This court has indicated that such a consideration is valid: see R. v. Francis (2006), 2006 CanLII 10203 (ON CA), 207 C.C.C. (3d) 536 at para. 23. Given that the appellant is a violent recidivist who has previously violated parole and court orders, no objection can be taken to the reasoning of the sentencing judge that the appellant is unlikely to obtain early parole.
12The sentencing judge requested the evidence that was adduced in relation to the conditions of the Owen Sound jail. Although he did not refer to that evidence in his reasons, he stated that he had considered it. We accept that he did so.
13The third ground of appeal relates to the order for delayed parole. The appellant argues that the sentencing judge was biased because, prior to the sentencing, the sentencing judge became aware that the appellant had filed a complaint against him with the Canadian Judicial Council. The appellant also argues that the sentencing judge erred and became an advocate for the Crown by advising the Crown that he was considering an order for delayed parole.
14We accept neither submission.
15We see nothing in the submission that the sentencing judge was biased because of the complaint that had been filed against him. At the outset of delivering his reasons for sentence, the sentencing judge acknowledged that the complaint had been filed. He assured the appellant that the action would have no influence on his determination of a fit sentence. We accept that the sentencing judge so conducted himself.
16The sentencing judge was entitled to consider delayed parole and did so in accordance with the dictates of R. v. Zinck (2003), 2003 SCC 6, 171 C.C.C. (3d) 1 (S.C.C.) at paras. 33-36. After raising the issue on his own motion, the sentencing judge granted the parties an adjournment so that they could adequately address the issue, made clear that he had not formed any conclusions about whether the order was warranted, and conveyed that he viewed it as an extraordinary measure. Nothing in these circumstances gives rise to concerns about bias, as the appellant suggests.
17Furthermore, on this record, as the sentencing judge identified, denunciation, deterrence and the need for protection of the public justified such an order.
18In the schedule listing the offences that may be subject to delayed parole, when the legislator wanted to limit the application of the delayed parole provision to part of a section, the schedule so specifies. By contrast, when the entire section is meant to be subject to the delayed parole provision, only the section is referenced. It is not broken down by subsection. Here section 279 is specified in its entirety without discrimination between its various subsections. Furthermore, section 3 of the Criminal Code states that descriptive cross-references are inserted for ease of reference only. See also R. v. Pritchard 2008 SCC 59, [2008] 3 S.C.R. 195 at para. 25.
19We acknowledge that the principle of totality must be kept in mind when reviewing the overall sentence. In our view, the overall sentence is not demonstrably unfit, given the nature and number of assaults, the seriousness of the offences, the victim’s age, the appellant’s record and the total absence of mitigating factors.
20Accordingly, leave to appeal sentence is granted but the sentence appeal is dismissed.
“K.M. Weiler J.A.”
“E.E. Gillese J.A.”
“David Watt J.A.”
