COURT OF APPEAL FOR ONTARIO Date: 2024-06-14 Docket: COA-24-CR-0056 Trotter, Favreau and Gomery JJ.A.
Between: His Majesty the King, Respondent and Joshua Normand, Appellant
Counsel: Jeffrey Fisher, for the appellant Amy Rose, for the respondent
Heard: In writing
On appeal from the sentence imposed on August 28, 2023 by Justice Evelyn J. Baxter of the Ontario Court of Justice.
Reasons for Decision
[1]
Overview
The appellant pled guilty to one count each of mischief, criminal harassment, possession of a loaded restricted firearm and unsafe storage of a firearm. The appellant is Metis, and the court accordingly received a Gladue report prior to sentencing. The Crown and defence counsel jointly proposed a sentencing range of three to five years. The sentencing judge imposed a global sentence of four years, which included three years for the unlawful possession of a restricted firearm, and three years of probation. The appellant was given 33 months of credit for presentence custody, including a Summers credit and a Duncan credit, leaving a sentence of 15 months to be served.
2The appellant seeks leave to appeal his sentence. He argues that the sentencing judge failed to apply the principle of restraint and did not give sufficient weight to mitigating factors. We disagree.
[3]
Standard of Review
Appellate intervention in sentencing is warranted only if a sentence is demonstrably unfit or if a sentencing judge makes an error of law or principle that has an impact on sentence: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 25-26, citing R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. As stated in R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, at para. 13:
Sentencing courts are best‑positioned to craft a fit sentence for the offenders before them. Sentencing is a “profoundly subjective process”, and the sentencing judge “has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record” (R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46). The sentencing judge also has “unique qualifications of experience and judgment from having served on the front lines” and “will normally preside near or within the community which has suffered the consequences of the offender’s crime” (R. v. M. (C.A.), [1996] 1 S.C.R. 500], at para. 91).
[4]
Analysis
A four-year custodial sentence was clearly just and appropriate in the circumstances of the case. The complainant, K.S., was the appellant’s former intimate partner. After a tumultuous relationship culminating in the appellant’s destruction of K.S.’s cell phone, she left the family home with the parties’ child while the appellant was absent. When the appellant discovered that K.S. had left him, he bombarded K.S. with hundreds of hateful, threatening, and obscene messages and calls over a twelve-hour period, then came to the house where K.S. was staying with a friend. He knocked but did not enter. K.S. feared for her safety and that of her child and contacted the police as a result. When the police arrived and arrested the appellant outside the house, he appeared to be drunk. A loaded handgun was found in the snow a short distance from him. A loaded rifle and ammunition were found, along with open beer cans, in his truck. The police found five more restricted firearms and ammunition in his home. The appellant claimed that he came to the house to commit suicide in front of the complainant.
5Based on their victim impact statements, both the complainant and the friend at whose house she was staying were terrified and traumatized by the events giving rise to the charges. The complainant has moved to another city and remains fearful for her safety and that of her child.
6The sentencing judge did not specifically refer to ss. 718.2 (d) or (e) of the Criminal Code, R.S.C. 1985, c C-46, which requires that less restrictive sanctions be considered short of prison, particularly if the offender is Aboriginal. Her reasons nevertheless show that she both considered and applied the principle of restraint. She referred to it explicitly. She identified the appellant’s limited criminal record and lack of previous convictions for firearm-related offences as mitigating factors. She turned her mind to the Gladue report and reviewed it. She acknowledged that the appellant’s past trauma and alcoholism had contributed to bringing him before the court.
7The appellant relies on R. v. Borde, (2003), 63 O.R. (3d) 417 (C.A.). In Borde, at para. 36, this court held that a youthful offender’s first penitentiary sentence should rarely be determined solely by the objectives of denunciation and general deterrence. The appellant is neither youthful nor a first-time offender. He is 37 years old and has prior convictions for assault and failing to comply with a no-contact order with another former intimate partner.
8The sentencing judge did not fail to give appropriate weight to mitigating factors. She acknowledged that the appellant had made important steps towards rehabilitation while in pre-sentence custody, which he planned to pursue going forward. She reviewed the appellant’s testimony at the sentencing hearing, the Gladue report, letters of support filed by the appellant, and certificates attesting to his completion of courses while institutionalized. The sentencing judge also considered evidence that the appellant had shown little or no remorse for his actions, did not appreciate how his actions impacted K.S., and blamed others for his situation. While in pre-sentence custody, the appellant was cited for drinking and threatening staff and fighting.
9It is not the court’s role to reweigh the factors relevant to sentencing unless the sentencing judge has exercised their discretion unreasonably: R. v. Lacasse, at para. 48. The appellant has not persuaded us that the sentencing judge in this case made any errors that warrant this court’s intervention or that the sentence is demonstrably unfit.
[10]
Disposition
Leave to appeal is granted but the appeal is dismissed.
“Gary Trotter J.A.”
“L. Favreau J.A.”
“S. Gomery J.A.”
