Court of Appeal for Ontario

Date: 2018-11-14

Docket: C65672

Judges: Feldman, Roberts and Fairburn JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Brent Casey Hoshal Appellant

Counsel

• Brent Hoshal, in person
• Louis Strezos, as duty counsel
• Hannah Freeman, for the respondent

Heard: November 7, 2018

On appeal from the sentence imposed on July 20, 2018 by Justice Rebecca Rutherford of the Ontario Court of Justice.

Decision

Fairburn J.A.:

Overview

[1] On July 20, 2018, the appellant was sentenced to three years' custody for a number of domestic offences. He was credited 24 months for enhanced pre-sentence custody, leaving one year left to serve. A long term supervision order ["LTSO"] was also imposed for a period of ten years.

[2] The appellant is a self-represented litigant appealing against both his sentence and the LTSO. The respondent agreed to move the appeal forward at the appellant's request. At the outset of the hearing, the appellant asked to bifurcate his appeal and be permitted to first proceed on the appeal against the one-year custodial period. He says that this is a matter of urgency. He maintains that there was a calculation error in relation to the amount of credit he should have received for pre-sentence custody and that he should have been released onto his LTSO a few months ago. [1] The appellant is prepared to deal with his appeal against the LTSO at a later date.

[3] The respondent and duty counsel agree that there was a nine-month error in the calculation of pre-sentence credit, meaning that 33 months (as opposed to 24 months) of credit should have been applied against the appellant's global sentence of three years. On the face of the trial judge's reasons for sentence, with the correct amount of credit deducted, it is agreed by counsel on appeal that the appellant's custodial sentence would have expired a few weeks ago.

[4] The respondent does not object in principle to bifurcating the appeal. The respondent objects, though, to the sentence appeal going ahead before at least December 10, 2018, as Correctional Service of Canada ["CSC"] and the Parole Board have yet to put a plan together for the appellant's release on the LTSO, should he succeed on his appeal. The respondent said that a plan is necessary to ensure public safety. For oral reasons given in court, the panel denied the request for an adjournment and heard the appeal.

[5] The respondent says that the appeal should be dismissed. The respondent maintains that the calculation error constitutes an error in principle, allowing this court to consider the sentence afresh. It is argued that a fit sentence is one that aligns with the effect of the sentence imposed, one additional year in custody. To achieve that effect, the respondent urges this court to increase the global sentence to three years and nine months and then to apply the correct amount of credit, leaving the same one year in custody left to serve.

[6] For the reasons that follow, I would grant the appeal and decline to increase the sentence.

Background Facts

[7] The appellant and his former domestic partner were in a relationship for about seven years. It was a relationship marred by violence. He repeatedly threatened and assaulted the victim, went to jail, got out of jail and committed more acts of violence against her. The appellant's criminal record reflects that cycle of violence. The victim is understandably terrified of the appellant.

[8] In relation to the offences that form the backdrop to this appeal, the appellant was arrested on May 5, 2015. In the month preceding his arrest, he committed a series of violent acts against the victim, including: biting her lip, squeezing her breasts, slapping her on the head and in the face, choking her, refusing to allow her to leave the apartment, threatening to kill her and throwing an iron chair at her. Some of the events were accompanied by the appellant's use of crystal methamphetamine. During their last interaction, the appellant threatened to hang himself with a dog leash.

[9] On August 4, 2015, the appellant pled guilty to the charges arising from those offences, including assault with a weapon, assault bodily harm, overcome resistance to the commission of an offence, forcible confinement, mischief under $5000, and fail to comply with probation.

[10] Following his guilty plea, the Crown pursued a dangerous offender application. While that application was outstanding, the appellant again offended by contacting and criminally harassing the victim from jail. While awaiting the dangerous offender application on the predicate offences, the appellant was found guilty and sentenced on the intervening acts. At the time of sentencing on this matter, the appellant had not attempted to contact the victim in over two years.

The Disposition Under Appeal

[11] Prior to sentencing, the trial judge asked trial counsel to provide their respective positions on pre-sentence custody. The trial Crown responded to that request by email to the trial judge, copied to defence counsel. The email explained that counsel had agreed that the enhanced credit for pre-sentence custody was 24 months. Although the respondent and duty counsel on appeal agree that it is unclear how trial counsel arrived at that number, it is clear from the email that they attempted to apply a formula of one and one-half days for each day spent in pre-sentence custody: see s. 719(3.1) of the Criminal Code; R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575.

[12] On July 20, 2018, the dangerous offender application was dismissed because the trial judge concluded that there was a "realistic possibility" that the appellant's violent behaviour could be controlled, a possibility that went "beyond mere hope." As noted in the trial judge's reasons, that view was supported by Dr. Klassen, who provided the report on risk assessment and risk management in the community. Even so, again based on Dr. Klassen's evidence, the trial judge concluded that absent meaningful intervention, the appellant would pose a high risk of violently reoffending and that he met the definition of a long-term offender in s. 753.1 of the Criminal Code. Accordingly, she imposed a ten-year LTSO.

[13] The trial judge also considered the appropriate sentence for the predicate offences. The parties take no issue with her approach to the relevant sentencing principles or the many factors she took into account in arriving at a fit disposition. Her reasons were careful, sensitive and considered. She had specific regard to the appellant's Indigenous heritage and the fact that he actively embraces his Indigenous roots. She accepted as a fact that the appellant "will continue to engage with indigenous programs while serving his sentence both in jail and in the community."

[14] Ultimately, the trial judge imposed a three-year sentence, saying:

In all of the circumstances I sentence Mr. Hoshal to three years concurrent on the counts of Assault with Weapon …. [Emphasis added.]

[15] The trial judge then went on to consider credit for time served. Taking into account the "conceded" 24 months of pre-sentence custody "on an enhanced basis", she concluded that the appellant had "a further 12 months concurrent" to serve on each count. She also imposed a sentence of six months concurrent on various fail to comply with probation and mischief counts.

[16] Consistent with her observations about the appellant's desire to be in a culturally sensitive environment, the trial judge recommended that the appellant serve the custodial portion of his sentence at the Algoma Treatment Centre, a recommendation that was acted upon. The court was informed that the appellant has been detained there since his sentencing in July and that he is actively enrolled in what the trial judge referred to as "culturally competent programming with an emphasis on domestic violence."

[17] I will now discuss the impact of the respondent's agreement that the trial judge should have deducted 33 months of credit from the global sentence.

Analysis

[18] The parties agree that, properly calculated, the credit for time served should have been 33 months. The respondent also agrees that if that period of credit were to be applied to the three-year sentence imposed on the day of sentencing, the appellant would have only had to serve an additional three months in custody, meaning that his warrant of committal would have already expired. Despite that acknowledgement, the respondent argues that the one year of additional custody from the time of sentence should not change.

[19] The respondent urges this court to find that the miscalculation of credit constitutes an error in principle that requires this court to take a fresh look at the fitness of the sentence. Counsel for the respondent says that a fit sentence is one that mirrors what actually happened – the imposition of one additional year of custody. The court is asked to arrive at that sentence by increasing the global sentence to three years and nine months. The respondent maintains that it is important to keep the effective length of the custodial term the same so that: (a) CSC is given a sufficient opportunity to come up with an appropriate plan for the appellant's release on the LTSO; and (b) the appellant can complete the domestic violence program he is currently taking, scheduled to be completed by the middle of January 2019. I do not agree.

[20] I start with the observation that it is important to maintain a distinction between the custodial sentence and the LTSO. Although it is open to consider public safety in determining the fitness of sentence, the determination of a custodial sentence principally relates to the objectives of punishment. In contrast, the LTSO deals principally with the supervision of the offender in the community, ensuring the offender does not reoffend and protecting the public during a period of reintegration into society: R. v. M.(L.), 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 46. To merge the two different tasks is to stray from the "normative principles and the objectives of sentencing": M.(L.), at para. 49.

[21] The trial judge determined that the fit sentence was three years. The respondent acknowledges that, pursuant to information the trial judge had been provided by trial counsel, the trial judge then mistakenly applied the wrong amount of credit. Having regard to the correct amount of credit, this court is now being asked to increase the custodial sentence to accommodate the development of the plan for the LTSO. To do so would belie the warning in M.(L.), at para. 49, to "remain faithful to the distinction between sentencing and the imposition of a supervision period".

[22] It is not for this court to increase the appellant's punishment and further jeopardize his liberty interests to accommodate the development of a plan for the LTSO. There is no basis to do so. The correctional authorities must act swiftly in developing that plan.

[23] Moreover, although the respondent's position respecting the value of keeping the appellant in the domestic violence program he is currently taking is laudable, the record demonstrates that the best programming available to meet the appellant's specific needs awaits him on the LTSO. Indeed, Dr. Klassen testified to that effect.

[24] The trial judge gave careful and thoughtful reasons. No one suggests to the contrary. She was clear about what she was doing. The fact that she was misinformed about the period of credit should not work to the appellant's disadvantage. The error should be corrected to make this right.

[25] The trial judge determined the fit sentence first, before taking into account any credit for pre-sentence custody. I find that the trial judge intended to impose a three-year sentence. She said so: "In all of the circumstances I sentence Mr. Hoshal to three years concurrent". She arrived upon that global number having engaged in an extensive consideration of the facts, the relevant principles of sentencing and all aggravating and mitigating circumstances. There is no suggestion of error in the trial judge's reasoning process.

[26] The trial judge then deducted what she referred to as the "enhanced credit" from that global sentence that she arrived upon. As the respondent says on appeal, the trial judge was misinformed about that period of credit. The sentence is what it is: a three-year global sentence with credit applied at what the respondent acknowledges was an incorrect amount of 24 months. The calculation error clearly had an impact on the time left to be served. Properly calculated, the custodial term should have been an additional three months.

[27] While it may have been open to the trial judge to apply less than full enhanced credit for the pre-sentence custody, the respondent does not advance that argument. Instead, the respondent fairly acknowledges that the appellant should have been credited 33 months.

[28] This only leaves open, then, the question of whether this court should increase the total length of the global sentence. The respondent claims that numerous authorities support the respondent's position on this approach. I disagree.

[29] The respondent relies upon authorities where this court found errors in principle in how trial judges applied credit for pre-sentence custody. The errors include true errors in principle, such as taking irrelevant considerations into account in assigning less credit than would otherwise be available, or refusing to grant any credit at all. Cases relied upon by the respondent include: R. v. Codner, 2013 ONCA 138, 303 O.A.C. 91; R. v. Gamble, 2011 ONCA 308; R. v. Langlois, 2007 ONCA 642, 228 O.A.C. 394; R. v. MacFarlane, 2012 ONCA 82, 288 O.A.C. 114; R. v. Simoes, 2013 ONCA 465; R. v. Situ, 2010 ONCA 683; R. v. Wysokinski, [2005] O.J. No. 2299 (C.A.). There is a substantial difference between a trial judge intentionally imposing a period of credit arrived upon through an error in principle, and a trial judge unintentionally imposing an erroneous period of credit because of counsels' mistake in math.

[30] Moreover, the respondent says that the authorities provide support for the proposition that any error in principle requires this court to consider the overall fitness of sentence, and that it is open to the court to increase the total sentence beyond what the trial judge imposed. I disagree that the authorities stand for that proposition. An error in principle can justify appellate intervention, but only where it appears that the error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44. In many of the cases cited by the respondent, this court determined that despite the error in principle, the sentence remained fit and appellate intervention was not called for. In other words, despite the error, the appeal was dismissed.

[31] In this case, though, the respondent acknowledges that the 33 months of credit should apply, which is what triggers the submission that the global sentence should be increased from three years to three years and nine months. There is no Crown appeal against the sentence imposed. Nor is there clarity around whether the respondent's position about increasing the sentence was known to the appellant in advance of the appeal (R. v. Hill, [1977] 1 S.C.R. 827). In all of the circumstances, it would be highly unfair to the appellant to increase his sentence, particularly at this stage.

[32] The trial judge gave careful and thoughtful reasons. No one suggests to the contrary. She was clear about what she was doing. The fact that she was misinformed about the period of credit should not work to the appellant's disadvantage. The error should be corrected to make this right.

[33] The respondent has legitimate concerns about public safety and they cannot be taken lightly. Although the LTSO is in place, CSC does not yet have a specific plan in place for the appellant's transition onto his LTSO. The court is informed that the plan may still take up to about a month to create.

[34] While it would be ideal to have the CSC plan in place, it is important to keep in mind that there will be safeguards in place the moment the appellant is released from custody: the LTSO along with many binding statutory requirements and a probation order, which I discuss further below.

[35] The reality is, though, that the appellant identified this problem to CSC and the respondent a few months ago. Upon being notified, the respondent took immediate steps to inquire into the matter and provided the necessary information to the duty counsel program. Mr. Strezos has been of great assistance in exploring the matter and obtaining the materials needed to determine the correct amount of credit. It took time to get the information required to determine the error. That information was only available about a week before the hearing of this appeal.

[36] Although a correctional plan is not yet in place, the court has been informed that the correctional authorities have opened a bed for the appellant at the Keele Community Correctional Centre ["KCCC"]. The respondent agrees that this is an appropriate location for the appellant to reside. Although the respondent emphasizes that, until a plan is in place, there will be nothing that legally holds the appellant at that location, I have no doubt that CSC and the Parole Board will move quickly to remedy that situation.

[37] In the interim, the LTSO is immediately in place along with many statutory requirements that bind the appellant. For example, s. 753.2(1) of the Criminal Code says that an offender who is subject to an LTSO shall be supervised in the community in accordance with the Corrections and Conditional Release Act, S.C. 1992, c. 20 ["CCRA"], when the offender has finished serving his sentence. Section 134.1 of the CCRA sets out the approach to conditions for individuals on LTSOs. The Parole Board may establish conditions it considers reasonable and necessary, including conditions to protect victims of crime.

[38] As the respondent points out, the Parole Board has not yet set the conditions. Even so, s. 134.1(1) says that every offender who is required to be supervised by an LTSO is subject to prescribed conditions under s. 161(1) of the Corrections and Conditional Release Regulations, S.O.R./92-620 ["CCRR"]. Section 161(1)(a) of the CCRR says that when an offender is released on parole or statutory release, the offender must "travel directly to the offender's place of residence, as set out in the release certificate respecting the offender, and report to the offender's parole supervisor immediately and thereafter as instructed by the parole supervisor".

[39] The court has been informed that the appellant will be released with a direction on his release certificate to travel directly to the KCCC. He will also have to report to his parole officer "immediately". Under s. 161(1)(b) of the CCRR, the parole officer can fix territorial boundaries within which the appellant must remain. Under a host of other mandatory provisions, he may not possess weapons, he must report to the police if instructed to do so by his parole supervisor, and he must obey the law and keep the peace. Any breach of those provisions could result in a warrant for the appellant's arrest.

[40] The appellant is also bound by a probation order, including a condition that he not communicate with the victim in this matter. Any breach of that probation order could also result in his immediate arrest.

[41] I also point out that pursuant to s. 753.3(1) of the Criminal Code, an offender who breaches an LTSO is guilty of an indictable offence and liable to imprisonment for up to ten years.

[42] In short, the following factors all go some meaningful distance to diminish the safety risk posed by the appellant:

• statutory requirements governing the appellant's release on the LTSO,
• the fact that the KCCC has opened a bed for the appellant and that he can reside there,
• the fact that he will be required to attend there and report to his parole officer immediately upon release from custody,
• the ability of the parole officer to set some conditions,
• the probation order that includes a non-contact provision, and
• the fact that the Parole Board will and should move quickly on the actual plan.

[43] The fact is that the appellant's sentence should have expired already. There are many safeguards in place, but more to come. I urge the correctional authorities to move expeditiously to put a plan in place.

Conclusion

[44] I would grant leave to appeal the sentence:

(a) set aside the credit of 24 months and increase it to 33 months; and

(b) set aside the one-year and six-month concurrent custodial terms and decrease them to three months concurrent.

[45] The original sentence stands in all other respects.

[46] I have no doubt that the respondent will move immediately to have the victim and authorities notified of this decision.

[47] The appeal from the LTSO will be spoken to on December 10, 2018 at 10:00 a.m.

Released: November 14, 2018

"Fairburn J.A." "I agree. K. Feldman J.A." "I agree. L.B. Roberts J.A."

Footnote

[1] In addition to receiving the assistance of duty counsel, the appellant made submissions on his own behalf. He claims that he should have been released from custody close to the beginning of September. I understand him to be basing that submission on two things: (a) taking into account the correct period of pre-sentence custody at an enhanced rate; and (b) applying a formula of parole eligibility.