R. v. Walker, 2017 ONCA 39

Court of Appeal for Ontario

Date: January 17, 2017 Docket: C62020

Justices: Sharpe, van Rensburg and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Shawn Walker Appellant

Counsel

E. Taché-Green, for the appellant

Rochelle Direnfeld, for the respondent

Heard

November 25, 2016

Appeal

On appeal from the sentence imposed on June 9, 2015 by Justice J. Skowronski of the Ontario Court of Justice.

Sharpe J.A.

[1] Central Issue

1The central issue on this sentence appeal is whether a sentence of four years' imprisonment in addition to credit for 13 months pre-sentence custody is an illegal sentence where the maximum penalty for the offence is five years.

Facts

2On September 9, 2014 Ontario Provincial Police officers observed the appellant driving very slowly and pulling a trailer with no tail lights. The trailer also obscured the tail lights of the appellant's car. The police signalled for the appellant to pull over.

3The officers observed the appellant to be exhibiting signs of impairment. The appellant refused to get out of the vehicle when ordered to do so. He hit the gas and revved his engine, but the car was in park and it did not move. An officer leaned into the car and struggled with the appellant. The officer then backed out of the vehicle and again ordered the appellant to exit the vehicle. The appellant reached for the gearshift in an apparent attempt to place it into drive. At that point, the officer tasered the appellant. Undeterred, the appellant drove away, speeding through stop signs with the trailer he was pulling whipping back and forth across the road. The appellant also swerved into oncoming lanes of traffic. The police chased him in their cruiser, using their siren. The appellant paid no heed, and the police turned the sirens off in hope that this would cause the appellant to slow to a safer speed.

4At one point during the pursuit, the appellant locked his brakes. As the trailer had no brake lights, the police did not realize that the appellant was braking and the cruiser hit the back end of the trailer. After this collision, the appellant sped away through a residential area with the cruiser once again in pursuit. The appellant sped through stop lights and stop signs. Eventually, the police were successful in forcing the appellant to stop by pinning him against a gate. An officer got out of the cruiser and ordered the appellant to turn his car off. The appellant reversed, hitting the cruiser three or four times. The appellant's vehicle broke free from the trailer and he drove away. One of the officers jumped out of the way to safety.

5Once again, the police pursued the appellant and ultimately succeeded in pinning his vehicle down. The appellant exited his vehicle and fled on foot. Neighbours alerted the police that he had gone into his house. His elderly mother told the police that her son had just run into his room. The police arrested him in his bedroom. He made some comments to the police and initially resisted arrest until the taser was brought out, at which point he was compliant. The appellant refused to provide a breath sample at the station. The appellant was subject to a driving prohibition at the time he was arrested.

6The appellant pleaded guilty to impaired driving, resisting a peace officer, dangerous driving, flight while being pursued by a peace officer, driving while disqualified and failing to provide a breath sample.

Reasons for Sentence

7The Crown sought a sentence of five to six years, less time served, plus a lifetime driving prohibition. The defence argued for time served and a lengthy probationary period.

8The appellant has a lengthy criminal record consisting of 78 convictions, including 17 convictions for driving offences. His most recent conviction was in 2013 when he was stopped for speeding. He was a prohibited driver at the time. He initially gave a false name to the police. While the police conducted a CPIC check, the appellant sped away. He evaded the first and second spike belts that were employed to stop him, but was eventually stopped by a third set. He then fled on foot but was caught. His alcohol readings were 115 and 117. He also has more than 20 convictions for breaches of court orders, including nine convictions for driving while disqualified.

9The sentencing judge noted that the mitigating factors were the guilty plea, and the appellant's expression of remorse. In addition, the appellant had concrete plans for rehabilitation.

10The sentencing judge considered the aggravating factors to be pronounced. In addition to the appellant's lengthy criminal record, the sentencing judge found the circumstances of the offences to be aggravating. In the sentencing judge's words, they "border on legendary in a negative way. Perhaps nightmarish is a better description."

11The sentencing judge noted that denunciation and deterrence must be major considerations in drinking and driving cases, as strong and consistent messages must be sent to drunk drivers. The appellant's "record screams out to the court" for an exemplary sentence. While the appellant claimed to be determined to start down the road to rehabilitation, that had also been his position in 2013 when he had asked for a longer sentence so that he could get into a treatment program. The sentencing judge observed that "the time to get help has been ever present when out of custody, but not meaningfully accessed." He concluded that the circumstances of these offences and the appellant's record demanded a sentence that appropriately denounced and deterred. He concluded as follows: "Therefore, on the resist police officer, there will be a 90 day sentence concurrent to the other charges, and on all other charges there will be a four year penitentiary sentence, on top of 13 months of pre-plea custody." The sentencing judge also imposed a lifetime driving prohibition, victim fine surcharges and a DNA order.

Issues

12The appellant's principal ground of appeal is that by imposing a sentence of four years on top of 13 months pre-sentence custody, the sentencing judge imposed an illegal sentence. The appellant points out as well that the sentencing judge erred in his calculation of the pre-sentence custody and that the sentence should be reduced accordingly. The appellant also submits that the sentencing judge failed to consider the parity principle, and did not properly consider the evidence of rehabilitation. The appellant also moves to admit fresh evidence, to which the Crown responds with further fresh evidence.

Analysis

Did the sentencing judge impose an illegal sentence?

13In addition to the resist police officer charge (for which the appellant received 90 days concurrent), the appellant pleaded guilty to five other Criminal Code offences, for each of which the maximum allowed sentence was five years' imprisonment.

Offence	Maximum Penalty where Crown proceeding by indictment
Impaired operation of a motor vehicle (s. 253(1)(a))	5 years (s. 255(1)(b))
Dangerous operation of a motor vehicle (s. 249(1)(a))	5 years (s. 249(2)(a))
Flight while pursued by a peace officer (s. 249.1(1))	5 years (s. 249.1(2)(a))
Drive while disqualified (s. 259(4))	5 years (s.259(4)(a))
Fail to provide a breath sample (s. 254(5))	5 years (s. 255(1)(b))

14While it might have been technically possible for the sentencing judge to have imposed a sentence of more than five years in total, that would have required consideration of the principle in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729 and the imposition of discrete sentences on each count. The sentencing judge did not do that. Instead, he imposed a global sentence of four years in addition to 13 months pre-sentence custody. He did not specifically "determine the sentence to be imposed for each of those offences" as required by s. 725(1)(a) of the Criminal Code. That, however, does not invalidate the sentence as s. 728 of the Criminal Code provides: "Where one sentence is passed on a verdict of guilty on two or more counts of an indictment, the sentence is good if any of the counts would have justified the sentence." In R. v. P.(T.A.), 2014 ONCA 141, 307 C.C.C. (3d) 506, at para. 16, this court held that when considered together, ss. 725(1)(a) and 728 mean that "sentence should be passed on each count on which an accused has been found guilty but a single global sentence on one or more counts will not be invalidated provided the sentence may be justified by any of the counts."

15The maximum single global sentence that would have been justified in this case was five years. Accordingly, the issue is whether a sentence of four years' imprisonment on top of 13 months credit for pre-sentence custody is an illegal sentence.

16The issue of the calculation of sentences that include credit for pre-sentence custody in relation to statutory minimums and maximums has been considered in a variety of circumstances.

17In R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, R. v. Arthurs, 2000 SCC 19, [2000] 1 S.C.R. 481 and R. v. Arrance, 2000 SCC 20, [2000] 1 S.C.R. 488, the Supreme Court of Canada held that a sentencing judge may give credit for pre-sentence custody and impose a sentence less than a mandatory minimum sentence, provided the total amount of time served satisfies the mandatory minimum. As explained in Arthurs, at para. 1: "a sentencing judge may give credit for time served in pre-sentencing custody, even if that credit results in a sentence below the mandatory minimum, since this reflects the intention of Parliament that all sentences be administered consistently within the context of the criminal justice system's sentencing regime."

18In R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742, the Supreme Court rejected the argument that credit for pre-sentence custody could affect the availability of a conditional sentence. A conditional sentence is only authorized for sentences of less than two years. The court determined that the two years less a day maximum period must be based on the total time of punishment, which includes credit for pre-sentence custody. Just because a given offender was sentenced to serve less than two years did not mean a conditional sentence was available, if taking pre-sentence custody into account meant that total time spent in custody was more than two years.

19In my view, Wust, Arthurs, Arrance and Fice support the appellant's argument that the sentence imposed in this case was illegal. Those cases hold that pre-sentence custody is properly considered as punishment for the offence, and that it should therefore be taken into account when calculating the length of the sentence in relation to minimum and conditional sentences.

20The respondent relies on R. v. Mathieu, 2008 SCC 21, [2008] 1 S.C.R. 723, where the Supreme Court appears to have taken a different approach in the case of eligibility for a probation order. The court held, at para. 17, that "a sentence of less than two years does not… become a sentence of more than two years simply because the trial judge, in imposing the sentence of less than two years, took into account the time already spent in custody as a result of the offence". As a result, it was open to the sentencing judge in that case to make a probation order which is only available where the sentence is less than two years, despite the aggregate of the sentence imposed and the pre-sentence custody exceeding two years. Similarly, in R. v. Moniere, 2008 SCC 21, [2008] 1 S.C.R. 723, the Court held that credit for pre-sentence custody is not relevant to the determination of when an accused is eligible for parole; rather that calculation is based on the sentence imposed on the date of sentencing.

21While Mathieu and Moniere take a different view of the effect of pre-sentence custody on the calculation of the length of sentences in the context of probation orders and parole, those cases also accept that there are occasions where pre-sentence custody should be considered as part of the term of imprisonment imposed at the time of sentence; namely, minimum sentences (Wust) and conditional sentences (Fice).

22The Supreme Court of Canada has not considered the question before us on this appeal, but there is a consistent line of authority at the level of provincial appellate courts that the total of credit for pre-sentence custody plus the sentence actually imposed must not exceed the maximum sentence and that if it does, the sentence is illegal.

23In R. v. Rotman, 2015 ONCA 663, 339 O.A.C. 266, this court found that the trial judge erred in principle by imposing a sentence which taken together with the pre-sentence custody exceeded the statutory maximum of five years. In that case, the trial judge said, "In addition to Mr. Rotman's presentence custody, I sentence him to 3 years…" At the time of sentencing Mr. Rotman had spent two years and 13 days in custody. Brown J.A., writing for the court, concluded at para. 7:

I accept the appellant's submission. The language used by the sentencing judge in his reasons clearly indicates that he imposed a sentence containing two elements — the time already served by the appellant in pre-sentence custody (2 years and 13 days by the date of sentence), together with a further 3 years' imprisonment. At the time the sentence was imposed, that resulted in a sentence which exceeded, by 13 days, the statutory maximum of 5 years' imprisonment. By imposing a sentence that exceeded the statutory maximum, the sentencing judge erred in principle. On this basis alone, the sentence imposed cannot stand.

24In R. v. LeBlanc, 2005 NBCA 6, 193 C.C.C. (3d) 387, the New Brunswick Court of Appeal held, at para. 64, that "the trial judge erred in imposing a sentence, which, when combined with the pre-sentence custody, exceeds the maximum allowed by the Criminal Code".

25In R. v. Severight, 2014 ABCA 25, 306 C.C.C. (3d) 197, leave to appeal ref'd [2014] S.C.C.A. No. 184, the Alberta Court of Appeal took the same approach and found that the Supreme Court's decision in Mathieu did not assist in determining how pre-sentence custody interacted with maximum sentences. The court noted that Mathieu had expressly recognized that there were occasions where pre-sentence custody should be considered as part of the term of imprisonment imposed at the time of sentence, namely, minimum or conditional sentences. The Alberta Court of Appeal found, at para. 32, that the issue of pre-sentence custody in the context of maximum sentences raises many of the same concerns about fairness:

In our view, issues of fairness also arise when one is considering pre-sentence custody in the context of statutory maximum sentences. These limits are designed to establish an upper limit of incarceration with respect to certain offences. To impose the maximum sentence, without considering pre-sentence custody, would flout the obvious intention of Parliament by providing a sentence that effectively exceeds the maximum. Parliament can hardly have intended to impose a maximum term of imprisonment for aggravated assault that could be extended, to varying degrees depending on the time spent in pre-sentence custody, through the failure to exercise a judicial discretion. It would also provide unequal punishment, for similarly situated offenders, based upon the length of time they have spent in pre-sentence custody. Furthermore, there could be occasions when an offender given less than the maximum sentence could spend more time in jail than an offender receiving the maximum sentence, if the latter was released on bail, pending trial, or served less time in pre-sentence custody. It follows that whether you find it is mandatory to consider pre-sentence custody in crafting the sentence, or you consider it as part of the sentence already served, pre-sentence custody also ought to be considered as part of the punishment when dealing with maximum sentences.

26I agree with that reasoning and, following this court's decision in Rotman, I conclude that the sentence imposed in this case exceeded the statutory maximum and was therefore illegal.

27The Crown concedes that the sentencing judge erred in his calculation of credit for pre-sentence custody. The sentencing judge gave the appellant 1.5 to 1 credit for 273 days of pre-sentence custody, which he mistakenly calculated as 13 months rather than 13 months and 19 days. The Crown agrees that this minor error should be corrected on appeal.

28I conclude, accordingly, that the sentence imposed exceeded the statutory maximum by one month and 19 days and was therefore illegal.

29Given my conclusion that the sentence imposed was illegal, it is not necessary for me to consider the other issues raised by the appellant as grounds of appeal.

What is the appropriate sentence?

30The appellant is a 50 year-old man, with a troubled family history. He is a lifelong alcoholic with mental health issues. In recent years he has suffered the loss of his half-brother, step-father, brother and mother. The appellant is single and childless.

31The circumstances of these offences were very aggravating. The appellant drove while intoxicated in a frighteningly dangerous manner, driving at high speed through red lights and stop signs in a residential area. His conduct displays a disturbing disregard for the authority of the police and for court orders.

32The appellant's criminal record for similar offences is deplorable. Of particular concern is the fact that in 2013, he committed similar offences, driving in an erratic and dangerous manner in flight from the police while intoxicated and while disqualified from driving. For those offences, he received 13 months in custody, on top of credit for four and one half months' pre-sentence custody. This was the appellant's previous longest sentence, in part because of his request for a sentence that would facilitate his admission to Ontario Correctional Institute so he could access programs for alcoholism and mental illness. Unfortunately, he was not admitted to that institution.

33Upon his release in 2014, it appears that the appellant did not take any steps to access treatment or help for his illnesses. Since his arrest on these charges, the appellant has taken some steps to seek treatment in custody. Regrettably, however, the fresh evidence filed by both the appellant and the respondent presents a mixed picture of his success in that regard. He has completed some programs while in custody and has worked with the John Howard Society with a view to arranging assistance upon his release. However, his progress was halted when he was transferred to face other outstanding charges in Alberta. He has now been returned to the penitentiary in Beaver Creek. The parole officer responsible for his supervision reports that the appellant has been unwilling to follow the directions and recommendations of his case management team, and that he is argumentative and disrespectful, focused upon his release rather than addressing the needs that are identified in his correctional plan.

34While I am sympathetic to the view that in the case of an offender who suffers from alcoholism and mental health problems, rehabilitation must be given significant weight, the appellant seems only to consider treatment as an option when faced with criminal charges. He has continued to conduct himself in a manner that is extremely dangerous to the public and to disregard court orders designed to protect the public from the risk he poses. He appears to be making little progress in custody.

35I conclude that this case calls for a substantial period of incarceration for the purposes of general and specific deterrence and for the protection of the public. On the other hand, the sentence should not be one that ignores rehabilitation or discourages the appellant from seeking help for his addiction and mental illness.

36In my view, notwithstanding the very serious circumstances of these offences, this is not a case calling for the maximum sentence. The appellant's previous longest sentence is the equivalent of approximately 18 months. In my view, the appropriate sentence is four years' imprisonment, less 13 months and 19 days credit for pre-sentence custody, that is, 34 months and 11 days from the date of sentence, June 9, 2015.

Disposition

37For these reasons, I would grant leave to appeal, admit the fresh evidence, allow the appeal, set aside the custodial portion of the sentence with respect to counts 3, 4, 6, 7 and 8 and in its place, substitute a sentence of 34 months and 11 days. In all other respects, the sentence imposed by the sentencing judge is maintained.