COURT OF APPEAL FOR ONTARIO
MacPherson, Rouleau and Karakatsanis JJ.A.
BETWEEN
Her Majesty The Queen
Appellant
and
Michael Bissonnette and Cory Michaud
Respondents
Chris Dwornikiewicz, for the appellant
No one appearing for the respondent
Heard and released orally: September 10, 2010
On appeal from the sentences imposed by Justice Peter Adams of the Ontario Court of Justice, on January 20, 2010.
BY THE COURT:
[1]
Background
The respondent Michael Bissonnette was convicted of robbery. The respondent Cory Michaud was convicted of robbery and assaulting a peace officer. The robbery took place after the respondents chased a 15-year old boy down a public street, cornered him in a back yard of a residential home, choked and punched him, and stole his cell phone.
2An individual who witnessed the robbery from an adjacent home followed the respondents and, with the assistance of two others, caught and held the respondents until the police arrived. During the arrest, Cory Michaud began swinging his arms in an attempt to break free and attempted to head butt the arresting officer. Although the head butt missed hitting the officer, he nevertheless suffered a broken hand while effecting the arrest.
[3]
The Sentencing Hearing
At the sentence hearing, the Crown submission was that custodial sentences of nine and 12 months for Bissonnette and Michaud respectively should be imposed. Both men had criminal records, including previous convictions for break and enter, though the records themselves were fairly dated. They also had previous convictions for failure to abide by court orders.
4Counsel for Bissonnette suggested a 9-12 month conditional sentence and counsel for Michaud asked for a 12 month conditional sentence. In his submission, Bissonette’s counsel specifically referred to house arrest as a term of a conditional sentence:
Your Honour, if you are prepared to consider a conditional sentence, what I would ask you to consider in addition to the proposed terms that are set out at page eight of the report. Obviously, all of the statutory terms that there be a provision for house arrest and that the exceptions to that would be for employment, medical emergencies, and I’d ask you to consider one four hour period per week to attend the necessities of life.... [Emphasis added.]
5Counsel for Michaud did not explicitly refer to house arrest in his submission. However, he did say that a conditional sentence “has teeth”, is “a jail sentence, albeit in the community” that “is going to have a deterrent value”.
6The trial judge imposed conditional sentences of nine and 12 months on Bissonnette and Michaud respectively. He did not impose as a term of the sentences any form of house arrest.
7After the trial judge had finished delivering his reasons for sentence, Crown counsel raised the absence of a house arrest term:
Your Honour, I’m not sure if I heard a house arrest component and whether or not there should be an exception, obviously, given the nature of the conditional sentence, I have no opposition to some exception period, but there should be one and I would ask the door-knock provision also apply, obviously if there is going to be a house arrest component.
8The trial judge responded in this fashion: “I’ve also considered the request by counsel relating to house arrest and it’s not a condition that I’ll make in this particular situation.”
9The Crown appeals the sentences on the basis that the trial judge erred by not including a house arrest component in the conditional sentences he imposed.
[10]
Analysis
We agree with the appellant’s position. In the leading case on conditional sentences, R. v. Proulx, [2001] 1 S.C.R. 61 at paras. 36 and 103 Lamer C.J.C. stated:
Accordingly, conditional sentences should generally include punitive conditions that are restrictive of the offender’s liberty. Conditions such as house arrest or strict curfews should be the norm, not the exception.
First, the conditions should have a punitive aspect. Indeed, the need for punitive conditions is the reason why a probationary sentence was rejected and a sentence of imprisonment of less than two years imposed. As stated above, conditions such as house arrest should be the norm, not the exception. This means that the offender should be confined to his or her home except when working, attending school, or fulfilling other conditions of his or her sentence, e.g. community service, meeting with the supervisor, or participating in treatment programs. Of course, there will need to be exceptions for medical emergencies, religious observance, and the like.
See also: R. v. Smith, [1999] O. J. No. 2694 at para. 11.
11The trial judge offered no reason for departing from the norm prescribed in Proulx. Nor can we see such a reason. Both respondents were convicted of a serious offence—robbery. Michaud was also convicted of assaulting a police officer. Both respondents had previous criminal records. The person they robbed was a vulnerable 15-year old boy who was chased, cornered and attacked by two grown men. A victim impact statement revealed that since the incident the boy has stayed home a lot, does not go out after dark, even with friends, and “constantly looked over my shoulder feeling nervous all the time and trusting no one.” A police officer suffered a broken hand while trying to take control of Michaud. Finally, apart from the standard statutory conditions, the only restriction imposed by the trial judge on the respondents’ liberty was an order to stay 100 metres away from the victim and two other individuals.
12Taken together, these facts establish that, even against the backdrop of the substantial deference that is owed to a sentencing judge, the sentences imposed on the respondents were unfit. There should have been a house arrest or strict curfew component in the conditional sentences.
[13]
Disposition
Accordingly, the appeal is allowed. The appellant seeks an extension of the sentences and the imposition of a strict curfew for the remainder of the sentences. We are not inclined to increase the sentences because both respondents have served most of their sentences and, the Crown informs us, have done so successfully. We would order that for the remainder of their sentences, the respondent Bissonnette live at 611 11th Street East, Cornwall and the respondent Michaud live at 650 Hamilton Crescent, Cornwall. In addition, both respondents must remain in their residences between 8 p.m. and 6 a.m. except for medical emergencies, employment, and otherwise with the written permission of the conditional sentence supervisor.
“J. C. MacPherson J.A.”
“Paul Rouleau J.A.”
“Karakatsanis J.A.”
