Court of Appeal for Ontario

Date: 2019-11-15 Docket: C66904

Judges: Hoy A.C.J.O., Doherty and Zarnett JJ.A.

Between

Her Majesty the Queen Respondent

and

Ryan Reesor Applicant (Appellant)

Counsel

Paul Calarco, for the applicant (appellant) Natalya Odorico, for the respondent

Heard and released orally: November 12, 2019

On appeal from: the sentence imposed by Justice Joseph F. Kenkel of the Ontario Court of Justice on November 9, 2018

Reasons for Decision

[1] The appellant was convicted after a trial of a number of firearm and other offences. The trial judge determined that a total sentence of 84 months should be imposed. He gave the appellant 14 months' credit for his pretrial custody, resulting in a total sentence of 70 months.

[2] The appellant appeals sentence only.

[3] The facts are summarized in the opening three paragraphs of the trial judge's reasons for judgment. We need not repeat them here.

[4] The victim was understandably terrorized by the appellant's conduct. The trial judge emphasized this, quite properly, in his reasons for sentence, noting, in particular, that the evidence demonstrated that the victim reasonably believed that she was about to die.

[5] This was clearly a very serious case of domestic violence. There was some history of abusive conduct toward the victim by the appellant during their relationship. The crimes also involved a loaded, lethal weapon used in a manner that could only be designed to maximize the terror and trauma suffered by the victim. Sadly, the facts of this case resemble the facts of many domestic homicides. The trial judge correctly observed, at para. 10:

General deterrence, specific deterrence and denunciation are the most important factors on sentence along with the protection of the victim and her children. The rehabilitation of Mr. Reesor is also an objective of the sentence, but given the circumstances of these offences I find it must play a lesser role.

[6] The trial judge also identified the aggravating and mitigating factors. While the appellant takes issue with the trial judge's description of certain aggravating factors, those complaints are primarily semantic. We do agree, however, that the trial judge may have overreached, to some degree, in describing the sawing off of the shotgun as showing "prior planning" in respect of the offences committed here. The evidence does not indicate when the shotgun was sawed off. The evidence did, however, demonstrate some element of planning in respect of the sawed-off shotgun in the sense that the appellant chose to take a particularly lethal weapon with him to the confrontation.

[7] The appellant correctly draws the court's attention to the restraint principle. The appellant has never been to jail and counsel submits that a lengthy penitentiary term is unnecessary and inconsistent with the restraint principle.

[8] The principle of restraint, like all principles of sentencing, operates in conjunction with other principles that often pull in a different direction. For offences like this, particularly committed in the context of domestic violence, the restraint principle must, as the trial judge noted, yield, to a large degree, to concerns associated with deterrence, denunciation and protection of the victim. A significant penitentiary sentence was necessary in this case. Indeed, the appellant acknowledges as much, conceding that a five-year sentence would have been appropriate.

[9] We cannot say that this sentence was clearly excessive or out of line with the relevant jurisprudence. It was not demonstrably unfit. We would not interfere with the total sentence imposed.

[10] While we reject the arguments advanced by the appellant with respect to the totality of the sentence imposed, we correct three technical errors in the sentence. These errors are acknowledged by both counsel and have no effect in the overall jail term imposed.

[11] First, having regard to R. v. Boudreault, 2018 SCC 58, the victim fine surcharge must be set aside. Second, the sentence of 36 months concurrent on the mischief charge exceeds the maximum sentence allowable for that offence of 24 months. Accordingly, a 24-month concurrent sentence is substituted. Third, the trial judge erred in imposing a concurrent sentence for count 11, a charge of using a firearm while committing an indictable offence. That charge requires a consecutive sentence. That sentence will be reduced to the statutory minimum of 12 months and made consecutive to the sentence imposed on count 1, the charge of assault with a weapon. The sentence on count 1 is reduced from 70 months to 58 months. In the end, there is no net effect on the total sentence imposed.

[12] Accordingly, leave to appeal sentence is granted and the appeal is allowed to the extent of correcting the three errors acknowledged by both counsel.

"Alexandra Hoy A.C.J.O."

"Doherty J.A."

"B. Zarnett J.A."