CITATION: R. v. Reid, 2011 ONCA 824
DATE: 20111223
DOCKET: C54574
COURT OF APPEAL FOR ONTARIO
Simmons, Blair and Hoy JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Robert Reid
Appellant
Erin Dann, for the appellant
Scott Latimer, for the respondent
Heard: December 13, 2011
On appeal from the sentence imposed on June 30, 2011 by Justice Donald G. Fraser of the Ontario Court of Justice.
Hoy J.A.:
[1] The appellant, Robert Reid, pleaded guilty to one count of dangerous driving and one count of failing to stop for police, contrary to s. 249 (1)(a) and s. 249.1(1) of the Criminal Code. He appeals the sentence imposed on two grounds:
The sentencing judge erred in rejecting the joint recommendation on sentencing put before him by the Crown and defence; and
The sentencing judge erred in principle in failing to give the appellant credit for time spent in pre-sentence custody.
[2] I would allow the appeal on the first ground and reduce the sentence by 84 days. As I would dispose of this appeal on the first ground, I need not address the second ground of appeal.
Background
[3] In 2003, the appellant was convicted of criminal negligence causing bodily harm in a driving context.
[4] On April 6, 2011, the appellant was allegedly involved in a fail to remain accident. Later in the day, he was observed driving at a very high rate of speed on a loose gravel road in an area with numerous houses. The police constable activated the cruiser’s emergency lights and sirens, pursued the appellant and attempted to stop him. The appellant barely missed a male pedestrian at the crest of a hill and later appeared to be throwing empty cans out of the vehicle. The police deployed a spike-belt. The appellant’s vehicle hit the belt, and continued – smoking, and with tires disintegrating. The police pulled up beside him and motioned for him to stop. He saw the police cruiser and, while travelling at about 70 kilometres per hour, swerved to strike its passenger side. The appellant was at this point entering a densely populated area of the city. He was swerving and taking up both lanes. Ultimately, the police succeeded in pinning the appellant’s vehicle to the side of a curb.
[5] On May 5, 2011, the Crown and defence counsel jointly recommended a sentence of nine months custody on top of time-served. At the time of the recommendation, the appellant had spent almost a month in custody. If accepted, the sentence would have expired on or about February 5, 2012.
[6] The sentencing judge observed that the facts were outrageous and the case against the appellant was overwhelming. The sentencing judge signalled that he was looking at a significantly higher sentence and ordered a pre-sentence report. Crown counsel confessed that, “I had taken the initial position I think two days into the file and we just sort of, you know frankly I had to struggle with it since.”
[7] The matter was put over until June 30, 2011.
[8] The pre-sentence report indicated that the appellant’s erratic behaviour was likely because of some underlying mental health issues, and that part of the difficulty was the appellant’s denial that he had any mental health issues. The appellant is suspected of suffering from an untreated, underlying biological, cyclic mood disorder, possibly Bipolar. The Crown had been unaware of these issues.
[9] On June 30, 2011, the defence counsel continued to recommend “a 10-month sentence less the time in custody.” As, at this point the time in custody was 84 days, this would have resulted in the appellant’s sentence expiring on or about February 6, 2012. Crown counsel supported this, stating that it was “within the range given what we know about Mr. Reid.”
[10] The sentencing judge indicated as follows:
Counsel agree the range is at the low end and it is for that type of behaviour and your record. But with this additional information from the Pre-Sentence Report I’m now prepared to accept it. I’m not giving you credit for the time you’ve spent in pre-sentence detention because in my view that pre-sentence detention time produced the material that allowed me to accept the joint submission.
The other concern I have is that I want you in custody long enough to give you an opportunity to participate in some rehabilitation programming at the Thunder Bay Correctional Centre. I think you could make a contribution there; you’re intelligent, you’re articulate.
You have 84 days of pre-sentence detention which I credit but at the same time, in my view, the total sentence should still be 10 months from today.
[11] The appellant’s sentence will end April 30, 2012, 84 days later than if the sentencing judge had credited pre-sentence detention in the manner proposed in the joint submission.
[12] The appellant remains in custody at the Thunder Bay Correctional Centre. While reported to be well behaved, he has not taken any of the rehabilitative programs available.
Analysis
[13] It was accepted by the sentencing judge and the parties on this appeal that the sentencing judge was faced with a joint submission, although re-phrased on June 30, 2011 to give effect to the passage of time since May 5, 2011 and recognize the longer period of pre-sentence detention.
[14] It is well settled that a sentencing judge should not reject a joint submission unless the joint submission is contrary to the public interest and the sentence would bring the administration of justice into disrepute: R. v. Cerasuolo (2001), 2001 CanLII 24172 (ON CA), 151 C.C.C. (3d) 445 (Ont. C.A.).
[15] On the facts before him on May 5, 2011, the sentencing judge properly expressed concern about the sentence proposed. He was also properly deferential: he ordered a pre-sentence report and afforded counsel the opportunity to make further submissions.
[16] The pre-sentence report, which cast the appellant’s moral culpability in a different light, permitted the sentencing judge to conclude that the sentence proposed was in the range, having regard to the behaviour and record of the appellant.
[17] While the sentencing judge indicated that he accepted the joint submission, in our view, in not allowing the appellant credit for pre-sentence detention in the manner proposed, he, in fact, imposed a longer sentence and rejected the joint submission. Recognition of pre-sentence detention was an integral element of the joint submission.
[18] Having taken the position that he was accepting the joint submission, the sentencing judge did not proceed to explain in what way the joint submission was contrary to the public interest and would bring the administration of justice into disrepute.
[19] The sentence imposed by the sentencing judge is not markedly longer than that proposed in the joint submission. He accepted that the joint submission was within the range. He did not conclude, and the 84-day difference is not a basis for inferring, that a shorter sentence would bring the administration of justice into disrepute.
[20] The sentencing judge did explain that he believed the additional period would give the appellant an opportunity to participate in rehabilitative programming. Rehabilitation of offenders is an important sentencing objective and in the public interest. It is unclear however, given the suspected nature of the appellant’s mental health challenges, the role that medication plays in treating such problems, and the optional nature of the rehabilitative programming, why a sentence that was 84 days shorter would materially affect the appellant’s rehabilitation and was contrary to the public interest and would bring the administration of justice into disrepute. The report of Thunder Bay Correctional Centre regrettably indicates that the appellant has not availed himself of the opportunity to participate in any of the available rehabilitative programs.
[21] In the result, I would allow the appeal.
RELEASED: Dec 23, 2011 “Alexander Hoy J.A.”
“J.S.” “I agree J. Simmons J.A.”
“I agree R.A. Blair J.A.”