Court of Appeal for Ontario

Date: 2018-11-02 Docket: C62920 Judges: MacPherson, Miller and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Bobby William Kenneth Gregoire Appellant

Counsel

Breana Vandebeek, for the appellant Jill Cameron, for the respondent

Heard: October 29, 2018

On appeal from the sentence imposed on November 10, 2015 by Justice J. Elliott Allen of the Ontario Court of Justice.

Decision

Paciocco J.A.:

[1] Bobby Gregoire was convicted of manslaughter after pleading guilty in the death of his 53-day-old son, Chase. He was sentenced to five years and ten months of incarceration, after being credited with two years and two months of pre-sentence custody, based on credit of 1.5 days for each day of pre-sentence custody actually served.

[2] Mr. Gregoire seeks leave to appeal his sentence. He contends that the sentencing judge made four distinct errors: (1) unfairly minimizing the mitigating effect of the guilty plea; (2) relying on Mr. Gregoire's failure to advise medical personnel that Chase suffered a head injury; (3) finding, contrary to the agreed statement of facts, that Mr. Gregoire shook Chase so hard that he died; and (4) concluding that sentencing judges do not have authority to provide credit in excess of a 1.5:1 ratio for pre-sentence credit for harsh pre-sentence detention conditions.

The Mitigating Effect of the Guilty Plea

[3] In my view, the sentencing judge did not unfairly minimize the mitigating effect of the guilty plea. He recognized expressly the mitigating effect of a guilty plea, and exercised his discretion in quantifying its impact. The Crown initially sought an eight to ten year sentence. The sentencing judge concluded that the Crown's subsequent decision to recommend the lower end of that range adequately reflected the guilty plea.

[4] I would not interfere with that discretionary determination. The exercise of that discretion was not unreasonable and no errors of principle occurred in quantifying the impact of the guilty plea.

[5] Specifically, the sentencing judge was entitled to consider that while the plea was early relative to the laying of the charge, it was a late demonstration of remorse, occurring nearly three years after the event.

[6] The sentencing judge was also entitled to take into account that initially Mr. Gregoire misled medical personnel about the cause of Chase's distress by claiming the child had been choking on food, when he knew that Chase had suffered a head injury. This conduct helped contextualize the remorse that the guilty plea represented, and gave context to what a mitigated, fit sentence would look like.

Reliance on the Failure to Explain the Head Injury

[7] I do not agree that the sentencing judge unduly relied on Mr. Gregoire's failure to explain that Chase suffered a head injury. The sentencing judge was required to determine the gravity of the offence, and the degree of Mr. Gregoire's responsibility. Mr. Gregoire's breach of trust in preferring his own interests to those of Chase when Chase was in medical need is relevant to both considerations, even in the absence of evidence that this conduct contributed to Chase's death.

[8] Nor does the sentencing judge's reasoning disrespect the right to silence in the circumstances of this case. Mr. Gregoire did not remain silent. He misled medical personnel.

Misapprehending the Assault

[9] In my view, the sentencing judge did not find, contrary to the agreed statement of facts, that Mr. Gregoire shook Chase so hard that he died. The sentencing judge's observation that the sentence must express the revulsion that "society feels when a parent … loses their temper and shakes a distraught baby so hard they die" does not contradict the agreement that moderate force would be sufficient to cause Chase's injuries. The sentencing judge was not saying that hard force was used. He was simply saying that the force used was hard enough to cause death, which manifestly it was.

The Harsh Detention Conditions

[10] At the time of sentencing, Mr. Gregoire asked for pre-sentence credit beyond 1.5:1 because of the harsh conditions in which he was held. The sentencing judge declined, expressing the view that he did not have the authority to give credit beyond 1.5:1. Subsequent to Mr. Gregoire's sentencing, this court recognized in R. v. Duncan, 2016 ONCA 754, that sentencing judges in fact have the authority to give extra credit beyond 1.5:1 for pre-sentence custody served in harsh conditions.

[11] I have considered whether we should reduce Mr. Gregoire's sentence because of the number of days he spent in lockdown, and in overcrowded cells. On the record before us, I would not do so. In all of the circumstances, the eight year global sentence that has been imposed is fit.

[12] Leave to appeal is therefore granted, but the sentencing appeal is dismissed. No errors occurred affecting the sentence imposed, and that sentence was not manifestly unfit.

David M. Paciocco J.A.

I agree. J.C. MacPherson J.A.

Concurring Opinion

Miller J.A. (Concurring)

[13] I agree with my colleague's reasons, but write briefly to highlight an issue that may warrant attention in a future appeal.

[14] The parties rely on R. v. Duncan for the proposition that sentencing judges, where circumstances warrant, have authority to give sentencing credit in addition to the 1.5:1 credit established by s. 719(3.1) of the Criminal Code. They disagree, however, as to what those circumstances are.

[15] It seems to me that further guidance is needed from this court as to what circumstances may justify enhanced credit. This may also require an explanation of the doctrinal foundation for the practice of granting enhanced credit outside of s. 719(3.1), with specific reference to the interpretation of s. 719(3.1) provided by the Supreme Court of Canada in R. v. Summers, 2014 SCC 26 and other judgments. Given the absence of submissions on these issues, it would not be appropriate to address them in the present appeal.

Released: November 2, 2018

B.W. Miller J.A.