Her Majesty the Queen v. Hopwood, 2020 ONCA 608

Her Majesty the Queen v. Hopwood

[Indexed as: R. v. Hopwood]

Ontario Reports

Court of Appeal for Ontario

Miller, Nordheimer and Thorburn JJ.A.

September 28, 2020

152 O.R. (3d) 643 | 2020 ONCA 608

Case Summary

Criminal law — Attempting to obstruct justice — Sentence — Appeals — Accused and others committing home invasion robbery — While in custody, accused passing note to co-accused asking him to give false testimony — Sentencing judge imposing six months for attempt to obstruct justice, consecutive to eight and one-half years imposed for home invasion offences — Sentence for attempt to obstruct justice demonstrably unfit — Interfering with witness called for penitentiary term — Sentencing judge improperly failed to consider appellate sentencing precedent — Sentence increased to two and one-half years.

Criminal law — Sentencing — Home invasion — Accused and others invading victim's apartment and assaulting, robbing, kidnapping, confining and attempting to extort victim — Crown seeking 12 years but sentencing judge imposing eight and one-half years — Sentence was at the low end of the range for egregious home invasion offences, but was not demonstrably unfit — Sentencing judge committed no error in principle and there was no failure to consider a relevant factor.

The respondent was convicted of robbing, confining, seriously assaulting, kidnapping and attempting to extort the victim over a course of 42 hours. The 25-year-old respondent and others began by conniving their way into the victim's apartment, where they assaulted him. They removed various items of value and then drove the victim to a park where he was assaulted again. When they were unable to contact the victim's father to deliver a ransom demand, they drove him to a house and kept him in a dog cage in a basement for what the victim estimated was two days, during which time the assaults and threats continued. They then drove him to a forest, choked him into unconsciousness and left him lying in the woods in his underwear. While the respondent and a co-accused were being held in custody in neighbouring units, the respondent passed a note to the co-accused, who was scheduled to testify against the respondent at the trial related both to the home invasion and to another incident. The note asked the co-accused to lie for the respondent, resulting in a charge of and conviction for attempt to obstruct justice. The Crown sought a sentence of 12 years for the home invasion offences, while the defence sought five years. On the attempt to obstruct justice count, the Crown sought two and one-half years consecutive and the defence sought a sentence in the range of four to six months. The sentencing judge imposed a sentence of eight and one-half years on the home invasion offences and six months consecutive on the attempt to obstruct justice offence. The Crown appealed the sentences.

Held, the appeal should be allowed in part.

The Crown failed to overcome the very high hurdle that would have justified interference with the sentence imposed on the home invasion offences. The Crown argued that the sentencing judge was unduly influenced by the parity principle and could not properly apply it because the co-accused, who was sentenced to six and one-half years, had not yet been sentenced at the time of the respondent's sentencing. The sentence sought by the Crown would not have reflected parity [page644] with the sentence imposed on the co-accused, even accepting that the co-accused pleaded guilty and did so to different offences. It also did not take into account the relatively young age of the respondent or the fact that he had no criminal record. The sentence imposed fell at the very lowest end of an acceptable spectrum for such an egregious instance of a home invasion robbery, but it was not demonstrably unfit. There was no error in principle nor any failure to consider a relevant factor.

The sentence imposed for the attempt to obstruct justice offence was demonstrably unfit. As a general proposition, attempting to interfere with a witness should normally attract a penitentiary term of imprisonment. The sentencing judge was provided with an appellate decision upholding a two-and-one-half year sentence for obstruction of justice. When the sentencing judge was unable to locate the reasons for sentence, he concluded that the appellate ruling was of no use in sentencing. It was not open to the sentencing judge to dismiss the appellate ruling and committed an error in principle in failing to take that ruling into account. The sentence on the attempt to obstruct justice count was varied to two and one-half years consecutive to the sentences on the other counts, which were left undisturbed.

R. v. Hall, [2001] B.C.J. No. 560, 2001 BCCA 74, 150 B.C.A.C. 313, 49 W.C.B. (2d) 382; R. v. Lacasse, [2015] 3 S.C.R. 1089, [2015] S.C.J. No. 64, 2015 SCC 64, 396 D.L.R. (4th) 214, 478 N.R. 319, J.E. 2016-20, 333 C.C.C. (3d) 450, 24 C.R. (7th) 225, 86 M.V.R. (6th) 1, 128 W.C.B. (2d) 175, EYB 2015-259924, 2015 CCAN para. 10,036, 2015 CCAN para. 10,090, 2016EXP-59, apld

R. v. Williams, [2016] O.J. No. 6633, 2016 ONCA 937, consd

Other cases referred to

R. v. Wright (2006), 2006 40975 (ON CA), 83 O.R. (3d) 427, [2006] O.J. No. 4870, 218 O.A.C. 215, 216 C.C.C. (3d) 54, 72 W.C.B. (2d) 101 (C.A.); R. v. Yegin, [2010] O.J. No. 1266, 2010 ONCA 238

APPEAL by the Crown from sentences imposed for home invasion offences and attempt to obstruct justice by D. Berg J., [2019] O.J. No. 3383, 2019 ONCJ 450 (C.J.).

Jeremy Tatum, for appellant.

Colleen McKeown, for respondent.

The judgment of the court was delivered by

1NORDHEIMER J.A.: — The Crown appeals the sentence of eight and one-half years that was imposed on the respondent on his conviction for a variety of offences arising out of a home invasion robbery. The Crown also appeals the sentence of six months that was imposed on the respondent on his conviction for attempt to obstruct justice. [page645]

A. Background

(a) The home invasion

2Since the facts underlying the convictions are of importance to the determination of the appropriateness of the sentences imposed, I will set them out in some detail. I take them largely from the sentencing judge's reasons.

3The respondent was found guilty of robbing, confining, seriously assaulting, kidnapping and attempting to extort the victim over a course of 42 hours. The respondent and three others began by conniving their way into the victim's apartment. I should mention that the victim is intellectually challenged, although there is no evidence that this fact motivated the respondent and the others to commit the offences.

4While in the apartment, the victim was struck by all three of his assailants. The blows drew blood. He was ordered to sit down and be silent. The assailants demanded the PIN for the victim's bank card. They removed from the apartment any object they thought might have some value including the victim's identification documents, his cellphone, loose change, a video game console, game cartridges, a television and 150 videotapes.

5The assailants then forced the victim to accompany them to their vehicle. They drove him to a park where he was assaulted again. The assailants told him that they wanted $300,000. The victim was taken to a gas station and required to use a pay phone in an attempt to contact his father in order to convey the ransom demand. He was told he would be killed if he did not assist them in this endeavour. They may have threatened him with death at other points during his ordeal. When the victim's father could not be reached, the assailants took the victim to a house in Ottawa. He was taken into the basement laundry room and placed inside a dog cage. The dimensions of that cage did not allow him to stand or stretch out. The victim estimated that he was kept caged for two days. While he was fed by his assailants, they forced him to urinate into a bag.

6His assailants continued to hit the victim while asking about money. They threatened to kill or mutilate his two cats, who were back at his apartment. They threatened to hurt his mother and later told the victim that his mother was already dead. The victim recalled at one point they took him out of the cage and taped him by his wrists and ankles to a chair. There was also an incident in the basement when his assailants had him stand and they then poured bleach and gasoline on his naked torso and scrubbed him with a brush. Finally, his assailants drove the victim to a remote spot in the Kingston/Gananoque Region. Upon reaching the [page646] forested area, the victim was told to remove his outer clothing and footwear, leaving him in his undergarments. The respondent and one of the other assailants took the victim some distance into the forest, where the other assailant choked the victim into unconsciousness and left him lying in the woods.

7When the victim regained consciousness, he wandered until he came upon a house. He rang the doorbell. The people of that house contacted the police. The victim suffered swelling, bruises, cuts and abrasions from his ordeal.

(b) The attempt to obstruct justice

8On July 8, 2017, two correctional officers at the Ottawa-Carlton Detention Centre intercepted the respondent attempting to pass a note to T.M., a co-accused, who was being held in a unit neighbouring the respondent's unit. T.M. was scheduled to testify in the near future against the respondent at the trial related to the home invasion, as well as another incident near Toronto. The respondent's trial ended up not going ahead at that time. In his note, the respondent asked T.M. to change his anticipated testimony to reflect a position more favourable to the respondent. In effect, the respondent asked T.M. to lie for him.

(c) The sentencing decision

9The Crown sought a sentence of 12 years for the home invasion offences. The defence sought a sentence of five years. On the attempt to obstruct justice count, the Crown sought a sentence of two and one-half years consecutive. The defence sought a sentence in the range of four to six months.

10The sentencing judge imposed a sentence of eight and one-half years on the home invasion offences and a sentence of six months consecutive on the attempt to obstruct justice offence. The sentencing judge noted that the respondent was 25 years old at the time of the offences and had no criminal record. He was in a relationship. He had a grade 11 education and had taken some further courses while in custody.

11The sentencing judge also took into account that T.M., who had pleaded guilty to some offences arising out of the home invasion, had been sentenced to six and one-half years. T.M. was 18 years old at the time of the offences and he also did not have a criminal record. The sentencing judge noted that, unlike the respondent, T.M. had pleaded guilty to the offences. The sentencing judge was of the view that the principle of parity in sentencing played a significant role in this matter. He also said that the principles of denunciation and deterrence were the primary objectives in sentencing the respondent. [page647]

12In sentencing the respondent on the attempt to obstruct justice count, the sentencing judge noted the fairly wide range of sentences that have been imposed for this offence. He also noted that the respondent was facing very serious charges and that the attempted obstruction was in order to avoid having to take responsibility for his actions. However, the sentencing judge also noted that there were no threats or inducements made or offered. I note that this latter finding appears to be a generous one given the wording of the note that the respondent authored in which he twice said to T.M.: "You know I got you."

B. Analysis

(a) The home invasion offences

13As will be apparent from the background facts, this was an especially egregious instance of a home invasion robbery. The length of the events surrounding the home invasion, the abuse of the victim, the caging of the victim and leaving the victim in a remote area unconscious, place this home invasion at the higher end of the spectrum of these types of robberies.

14When considering the sentences for home invasion robberies, reference is often made to this court's decision in R. v. Wright (2006), 2006 40975 (ON CA), 83 O.R. (3d) 427, [2006] O.J. No. 4870 (C.A.) and the mention of a range of four to 13 years. However, it is best to reproduce exactly what was said in that case on that point. Blair J.A. said, at para. 23:

The cases to which we have been referred, and which my own research has uncovered, reflect a gamut of sentencing dispositions in "home invasion" cases from as low as four or five years, to as high as 11 to 13 years -- with the suggestion that even higher sentences may be reserved for situations involving kidnapping, the infliction of serious injuries, sexual assault or death. Whether a "range" of that elasticity is of much assistance to trial judges in their efforts to preserve sentencing parity for similar offences involving similar offenders -- apart from signalling that a significant penitentiary jail term is generally called for -- is not clear to me. The downside of attempting to articulate a range for a type of crime that can manifest itself in such a wide variety of ways, and be committed by such a wide variety of individuals, is that the "range" becomes so broad, it is virtually meaningless. Nonetheless, to the extent there can be said to be a range in home invasion cases, it would appear that the one that currently exists is the expansive one outlined above.

(Footnotes omitted)

15To the extent that Wright establishes a range, it will be seen that the sentence sought by the Crown was at the high end of the range. The sentence imposed by the sentencing judge was more towards the middle of that range but was still one that constituted a "significant penitentiary jail term". [page648]

16The Crown complains that the sentencing judge was unduly influenced by the parity principle. The Crown also points out that the sentencing judge did not have the reasons for sentence that were given when T.M. was sentenced and, consequently, the sentencing judge did not have a proper foundation for evaluating the basis for the sentence that was imposed on T.M. or for properly applying the parity principle.

17There is merit to the Crown's position but, in the end result, this court must still abide by the principles about sentence review established by the Supreme Court of Canada in R. v. Lacasse, [2015] 3 S.C.R. 1089, [2015] S.C.J. No. 64, 2015 SCC 64, where Wagner J. said that, in order for an appellate court to intervene in a sentencing, it must be found that the sentencing judge made an error in principle, failed to consider a relevant factor, or erroneously considered an aggravating or mitigating factor. Further, this error must have had an effect on the sentence. An appellate court may also intervene where the sentence is demonstrably unfit.

18I consider the sentence imposed on the respondent to fall at the very lowest end of an acceptable spectrum of sentences for the offences involved, given the manner in which those offences were committed. However, I cannot say that the sentence was demonstrably unfit. I do not see any error in principle or any failure to consider a relevant factor. Parity did play some role in the analysis and I am not satisfied that the sentencing judge overemphasized that principle in deciding on the sentence he imposed.

19The sentence sought by the Crown would not have reflected parity with the sentence imposed on T.M., even accepting that T.M. pleaded guilty and he did so to different offences than the respondent was convicted for. More importantly, the sentence sought by the Crown did not take into account the relatively young age of the respondent or the fact that he had no criminal record. A sentence of 12 years for a first offender would be excessive, even given the seriousness of the events underlying the offences.

20In the end result, while the sentence imposed was lenient in all of the circumstances, the Crown has failed to overcome the very high hurdle that would justify this court interfering with the sentence imposed on the home invasion offences.

(b) The attempt to obstruct justice offence

21I reach a different conclusion on the attempt to obstruct justice offence. In my view, a six-month sentence, for what the respondent attempted to achieve, is demonstrably unfit. The sentencing judge also committed an error in principle in failing [page649] to give proper consideration to a decision of this court, as I shall explain.

22I begin with the principle that efforts by accused persons (whether directly or through others) to interfere with witnesses strike at the very heart of our justice system. There are already very serious concerns regarding the willingness of people, who observe crimes, to come forward and offer themselves as witnesses. Concerns around the "code of silence", and possible repercussions from being considered a "rat" or a "snitch", often lead persons to remain silent when they ought to be coming forward and assisting the authorities to properly investigate and prosecute criminal activities.

23Against that backdrop, interference with persons who are prepared to be witnesses only serves to exacerbate the problem. It must be clear to all accused persons that attempting to interfere in any way with a witness represents conduct that will not be tolerated. In that regard, I respectfully adopt what the British Columbia Court of Appeal said in R. v. Hall, [2001] B.C.J. No. 560, 2001 BCCA 74, per Saunders J.A., at para. 12:

Obstruction of justice or attempting to obstruct justice strikes at our system of a lawful society. The message must be clear that this type of interference with the community system for handling criminal offences will not be tolerated. It is for this reason that the courts must act firmly to express society's disapproval and denunciation of such conduct.

24While there may be other conduct that would constitute an attempt to obstruct justice that would warrant a minor sentence of the type that was imposed here, attempting to interfere with a witness does not fall into that category. Indeed, I would say that, as a general proposition, attempting to interfere with a witness should normally attract a penitentiary term of imprisonment. I find support for that position in the fact that penitentiary terms of imprisonment are often imposed for persons who refuse to testify: R. v. Yegin, [2010] O.J. No. 1266, 2010 ONCA 238. If a person's personal choice not to give evidence can attract such sentences, then it seems to me that a person's choice to interfere with another person's right to testify should draw, at least, equal condemnation. In this case, therefore, the sentence sought by the Crown of two and one-half years was entirely appropriate.

25On that latter point, I note that this court upheld a two-and-one-half year sentence for obstruction of justice in R. v. Williams, [2016] O.J. No. 6633, 2016 ONCA 937. That case was provided to the sentencing judge. The sentencing judge attempted to locate the trial judge's reasons for sentence, but he was unable to. This inability then led the sentencing judge [page650] to conclude [at para. 34] that "the appellate ruling in Williams is of no use to me in sentencing" the respondent.

26With respect, it was not open to the sentencing judge to dismiss this court's decision in Williams in that fashion. While the particulars underlying the sentence may not have been available to the sentencing judge, he nonetheless had a decision of this court suggesting that the sentence being sought by the Crown with respect to the respondent was clearly one that was open to him. He also had this court's view of the seriousness of these types of offences. He committed an error in principle by failing to take that decision into account in arriving at the sentence.

C. Conclusion

27I would grant leave to appeal and allow the appeal only to the extent that I would impose a sentence of two and one-half years on the attempt to obstruct justice count, consecutive to the sentences on the other counts. The appeal of the sentence on the other counts is dismissed.