R. v. Marshall
Ontario Reports Court of Appeal of Ontario Strathy C.J.O., Gillese and Watt JJ.A. January 18, 2021 153 O.R. (3d) 623 | 2021 ONCA 28
APPEAL by accused from sentences and duration of long-term supervision order.
Counsel: Jeffery Couse, for appellant. Andrew Hotke, for respondent.
The judgment of the court was delivered by
[1] WATT J.A.: — Bevon Marshall (the "appellant") is in custody. His warrant expiry date is October 28, 2033. Then, he will begin a decade-long period of long-term supervision which will end on October 27, 2043 when the appellant is 53 years old. He will have spent more than three decades under state supervision.
[2] The appellant asks us to substantially reduce both his term of imprisonment and the length of his long-term supervision order ("LTSO").
[3] The appellant's sentence is an amalgam of three sentences imposed on three separate occasions by three different judges on convictions for a variety of offences committed over a period of nearly six years. The LTSO is part of a composite sentence levied after a finding that the appellant is a long-term offender ("LTO").
[4] The reasons that follow explain why I would decline the appellant's entreaty to intervene. I am not persuaded that the sentences of imprisonment imposed, whether considered individually or cumulatively, offend the principle of totality as the appellant urges. Nor am I convinced that the length of the LTSO fails to give proper effect to its purposes of protecting the public and rehabilitating and reintegrating the appellant into the community.
The Standard of Review
[5] Our mandate as a reviewing court is to consider the fitness of the individual and cumulative sentences imposed on the appellant. We do so mindful of the scope of our authority to intervene in the profoundly subjective process that is sentencing those convicted of criminal offences. In determining a fit sentence, the sentencing judge must consider a complexity of factors including the nature of the offence and the personal characteristics of the offender. As well, the sentencing judge must weigh the normative principles Parliament has enshrined in the Criminal Code, R.S.C. 1985, c. C-46; the sentencing objectives in s. 718, the fundamental principle of proportionality in s. 718.1, the aggravating and mitigating factors, as well as the principles of totality and restraint in s. 718.2: R. v. M. (L.), 2008 SCC 31, at para. 17.
[6] Proportionality is the cardinal principle that governs our review of the fitness of a sentence imposed on an offender. It requires that every sentence be proportionate not only to the gravity of the offence, but also to the degree of responsibility of the offender who committed that offence: Criminal Code, s. 718.1.
[7] The severity of a sentence depends not only upon the seriousness of the consequences of a crime, but also on the moral blameworthiness of the offender. The more serious the crime and its consequences, or the greater the offender's degree of responsibility for that crime, the heavier the sentence will be: R. v. Lacasse, 2015 SCC 64, at para. 12.
[8] Where consecutive sentences are concerned, the fundamental principle of proportionality expresses itself through the more particular form of the totality principle. In brief, the totality principle requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence imposed does not exceed the overall culpability of the offender: R. v. M. (C.A.), at para. 42.
[9] The principle of totality also applies where a sentencing judge imposes a sentence on an offender who, at the time of sentencing, is already serving a sentence for a prior conviction. In this case, the influence of the totality principle is tempered by the continuing criminality of the offender: R. v. Johnson, 2012 ONCA 339, at paras. 19, 21-24.
[10] Appellate intervention in a sentence imposed at trial is justified only where the sentencing judge has erred in principle, failed to consider a relevant factor, or erroneously considered an aggravating or mitigating factor and the error has had an impact on the sentence actually imposed: Lacasse, at paras. 43-44.
[11] The weight assigned to aggravating or mitigating factors lies within the discretion of the sentencing judge. The decision to weigh these factors in a particular way is not itself an error that permits appellate intervention unless the weighing is unreasonable. Nor is an appellate court entitled to intervene because a majority of its members would have weighed those same factors differently. After all, this is what the exercise of discretion is all about: Lacasse, at paras. 49-50, 78.
[12] Similarly, a choice of a sentencing range, or of a category within a range, also falls within the discretion of the sentencing judge and, on its own, cannot constitute a reviewable error. It follows that an appellate court has no authority to intervene except in those cases where the sentence imposed is demonstrably unfit: Lacasse, at para. 51.
[13] A sentence is demonstrably unfit if it constitutes an unreasonable departure from the fundamental principle of sentencing -- proportionality.
The Sentences Imposed
[14] With these principles in mind, I turn to the sentences imposed. I begin with a sentence the fitness of which is not challenged here, but which is nonetheless of importance to the sentences that are under review.
The sentence of September 1, 2015
[15] After a trial before Code J. sitting without a jury, the appellant was found guilty of conspiracy to commit robbery. The offence occurred on May 8, 2013.
[16] During an interception of the appellant's private communications in May 2013 in an unrelated investigation, police learned that the appellant and his co-accused planned to rob a man of $15,000. Telephone calls and text messages disclosed attempts by the appellant to obtain a weapon to help carry out the plan.
[17] Despite the appellant's enthusiastic pursuit of a firearm, his efforts came to naught. No gun. The victim vanished. And no robbery.
[18] The appellant was 22 years old at the time of this offence. When sentenced on September 1, 2015, the appellant was 25. He had a youth and adult record which included assault, robbery, failure to comply with a probation order, two firearms offences including breach of a firearms prohibition and a drug offence. Despite his comparative youth, the appellant had logged substantial time in custody, much of it prior to sentencing for his various convictions.
[19] The appellant had not completed high school. He had no significant employment history and, at best, limited rehabilitative potential.
[20] In his reasons for sentence, Code J. considered as aggravating the appellant's criminal record, his apparent enthusiasm and excitement at the prospect of committing robbery, and a casual nonchalance, acceptance of, and commitment to violent crime.
[21] In mitigation, Code J. took into account the unsophisticated nature of the offence, which he characterized as a crime of opportunity of brief duration and ultimate failure. He also considered the appellant's youth and his responsible conduct throughout the trial.
[22] Justice Code imposed a sentence of three and one-half years on the appellant. From this sentence, he deducted 40 months as credit for the time the appellant had been detained in pre-sentence custody. As a result, the appellant was required to serve a further period of two months in custody.
[23] The appellant does not challenge this sentence on appeal.
The sentence of January 29, 2016
[24] On October 1, 2015, a jury found the appellant guilty of robbery and of discharging a firearm with intent to endanger life. The appellant was found not guilty of attempted murder.
The circumstances of the offence
[25] On February 25, 2009, four people participated in a robbery at a pawn shop. Each had a role. One drove the others to and from the pawn shop. Another entered the shop, looked around to ensure that no customers were there, and left to advise the remaining two. The final two entered the pawn shop. Each was masked and armed. The appellant carried a baseball bat. The other man carried a gun.
[26] The store operator and an employee were alone in the store when the robbers entered. Under threat, the robbers forced the store occupants from one place to another. The robbers smashed display cases and gathered up jewelry and other property. The store operator resisted and engaged the intruders in a protracted and violent struggle. During this altercation, the store operator kicked the gun out of the robber's hand. The appellant picked up the gun and fired a shot as he continued his struggle with the store operator. The shot did not hit anyone.
[27] The operator managed to pull the appellant's hoodie over his head. When the operator fell to the ground, the appellant pulled the hoodie off his head and fired a second shot at the operator. The shot struck the operator in the abdomen. The appellant and his partner fled from the pawn shop and were driven away by their accomplice.
[28] The pawn shop operator was seriously injured by the gun shot. He required surgery and a lengthy period of rehabilitation. At the sentencing hearing about seven years later, his victim impact statement recounted in detail the physical, emotional, and financial consequences of the event.
[29] Police did not learn of the appellant's involvement in these offences until they intercepted his telephone calls and text messages under an authorization granted in relation to another investigation. The appellant was arrested in June 2013.
The circumstances of the offender
[30] The appellant was 18 years old at the time of the pawn shop robbery and 25 at the time he was sentenced. He grew up in a good and supportive family home. He did not complete high school. His employment record consisted of part-time jobs. He was involved in an intermittent relationship with a young woman and had no dependants. During his time in pre-trial custody, he had taken courses to upgrade his education to high school equivalency.
[31] At the time of sentencing, the appellant had both a youth and adult criminal record. Included were convictions for firearm offences and robbery. He had been placed on probation for the robbery conviction about one month before he participated in the pawn shop robbery and shooting. At the time of this offence, the appellant was also subject to a weapons prohibition. He was not serving an imposed sentence when he appeared for sentencing on the pawn shop offences.
The sentence imposed
[32] The trial judge imposed a sentence of imprisonment of 11.5 years, less three months for time spent in pre-sentence custody, which the judge deducted from the sentence of 5.5 years for robbery involving a firearm. The sentence for the discharge firearm offence was six years to be served consecutively to the sentence for robbery.
The arguments on appeal
[33] The appellant asks that we reduce the sentence on the pawn shop robbery and shooting to a sentence of imprisonment of seven and one-half years. To accomplish this, he suggests that we impose a sentence of seven and one-half years on each count with the sentences being served concurrently. The appellant submits that the trial judge erred in failing to give proper effect to the principle of totality.
[34] The appellant concedes that the sentence imposed falls within the range appropriate for the offences of which he was convicted. But the totality principle becomes engaged because the sentence imposed increased the appellant's cumulative sentence to one of 15 years. Recall the sentence of three and one-half years imposed by Code J. five months earlier.
[35] Relatedly, the appellant continues, the trial judge erred in failing to give anything beyond passing mention to the appellant's prospects for rehabilitation. The appellant was barely an adult when he committed the offence and was a youthful offender at the time of sentencing. The sentence imposed not only failed to accord a meaningful place to the appellant's rehabilitative prospects, it extinguished them.
[36] The respondent acknowledges the applicability of the principles of totality and proportionality and notes that the trial judge adverted to them in three respects. First, he adverted to the totality principle before determining the appropriate sentence. Second, he expressly considered the sentence previously imposed by Code J. Finally, after noting that the offences warranted consecutive sentences, he immediately stated the global sentence, reflecting the effect of the consecutive sentences he had imposed.
[37] The trial judge correctly determined that the pawn shop offences warranted consecutive sentences. They were separate delicts. The robbery had been completed before the appellant shot the victim, who represented no danger to the robbers who were then making their escape. The cumulative sentence was lengthy, as it should have been. It properly reflected the governing objectives and principles of sentencing, foremost among them, proportionality.
Discussion
[38] I would not give effect to the appellant's complaint that the sentencing judge failed to give effect to the principle of totality.
[39] These were very serious offences committed by a youthful recidivist. The predominant sentencing principles which were engaged were denunciation and deterrence. Despite the appellant's youth, the principle of rehabilitation occupied a place of lesser prominence, especially in the absence of evidentiary support for optimism.
[40] This was a planned and deliberate robbery involving four persons, each with a defined role. The victim was vulnerable. The appellant was a principal who gained possession of and used a prohibited or restricted firearm to shoot from point-blank range a victim who was, by then, no threat to him or his fellow robber. The shooting displayed a callous disregard for human life.
[41] For practical purposes, the appellant's confession that the sentence of 11 years, three months imposed by B. O'Marra J. falls within the applicable range of sentence for these offences leaves this aspect of his challenge on life support. After all, the selection of a sentencing range or of a sentence within that range is subject to substantial deference in this court. As exemplified by the appellant's own acknowledgment, I cannot say that the sentence is clearly or manifestly excessive or represents a substantial and marked departure: Lacasse, at paras. 51-52. Nor does it constitute an unreasonable departure from the principle of proportionality: Lacasse, at para. 53.
[42] Similarly, the appellant cannot invoke an error in the application of the totality principle on the basis that this sentence, in combination with the sentence then being served, amounted to a crushing sentence, thus offending the principle.
[43] The sentence with which we are concerned was not ordered to be served consecutively with any sentence the appellant was then serving. The reason is simple: the sentence imposed by Code J. had expired. The appellant's imprisonment was due to his failure to obtain release pending trial, not because he was serving a sentence.
The sentence of March 23, 2016
[44] After a trial before Goldstein J. and a jury, on January 11, 2016, the appellant was convicted of trafficking cocaine, possession of cocaine for the purpose of trafficking and attempting to possess a firearm.
The circumstances of the offences
[45] While intercepting the appellant's private communications in 2013, the police discovered a message where the appellant offered crack cocaine to his collocutor.
[46] About three weeks later, the appellant asked a man to get him a firearm. The man explained that the supplier did not have a .38 calibre firearm but"he has a nine". The appellant counselled the man to "keep it coded . . . the talk". The next day, police executed a search warrant at the appellant's apartment where they found an amount of crack cocaine consistent with trafficking, the appellant's Blackberry, and a digital scale.
The circumstances of the offender
[47] The appellant was 22 when he committed these offences and 25 when he was sentenced. He was on probation after the conspiracy to commit robbery of which he had been convicted and sentenced by Code J.
[48] When sentenced, the appellant was serving the sentence of 11 years, three months imposed by B. O'Marra J. about two months earlier. On December 4, 2015, the appellant was convicted of aggravated assault and was awaiting dangerous offender proceedings that did not conclude until 27 months later.
The sentence imposed
[49] Justice Goldstein imposed sentences of two years on each of the drug counts and ordered that those sentences be served concurrently to one another and to the sentence imposed by B. O'Marra J. On the conviction of attempting to possess a firearm, Goldstein J. ordered that the appellant serve a sentence of four years consecutive to the sentence the appellant was then serving. Thus, the appellant's total sentence increased to 15 years, three months.
The arguments on appeal
[50] The appellant says that Goldstein J. made two errors. The first has to do with the quantum of sentence he determined was appropriate for the conviction of attempted possession of a firearm. The second concerned the totality principle and the imposition of a consecutive sentence.
[51] The appellant contends that, as a matter of principle, a sentence for an inchoate offence, such as an attempt, should be lower than a sentence for a completed offence. An attempt to possess a firearm is less morally culpable than the completed offence of possession because the degree of danger to the community is significantly reduced in comparison to actual possession. Further, in this case, there was no evidence of the likelihood that the appellant's attempt would result in actual possession. Yet the sentence imposed, mirrors those for actual possession.
[52] The appellant does not argue that the sentence for the firearm offence should not have been consecutive to the sentence he was then serving. However, he submits that the imposition of a four-year sentence to be served consecutively offends the totality principle. He submits that a one-year consecutive sentence would better reflect the principle of totality and not depart from the prevailing sentencing objectives of denunciation and deterrence.
[53] The respondent says that a review of the reasons for sentence contradicts any suggestion that Goldstein J. did not give effect to the totality principle.
[54] The trial judge concluded that a proper application of the principles of sentencing and an evaluation of the aggravating and mitigating factors justified a total sentence of seven years. To give effect to the principle of totality and the goal of rehabilitation, Goldstein J. reduced the total sentence to four years. This was a proper application of the totality principle, especially for an accused whose rehabilitative prospects were, at best, marginal.
[55] The respondent resists any suggestion of error in the sentence imposed for attempted possession of a firearm. This was the appellant's second conviction for this offence. His first sentence was two years, five months. At the time, he was bound by a weapons prohibition, a probation order, and was trafficking drugs. These are serious aggravating factors.
Discussion
[56] I am not persuaded that the appellant's arguments about the totality principle or the culpability of inchoate crimes warrant our intervention.
[57] I turn first to the principle of totality. As I previously explained, it is well settled that, subject to consideration of proportionality and totality, consecutive sentences are properly imposed for sentences involving separate delicts, such as where they implicate different protected interests. In my view, it was open to the sentencing judge in this case to impose concurrent sentences on the drug counts, but order the sentence on the firearms count to be served consecutively to those sentences: Criminal Code, s. 718.3(4)(b). In a similar way, as s. 718.3(4)(a) of the Criminal Code expressly permits, it was open to Goldstein J. to direct that the term of imprisonment he was imposing be served consecutively to the sentence of imprisonment imposed by B. O'Marra J. to which the appellant was then subject.
[58] To determine whether the sum of the sentences imposed by B. O'Marra and Goldstein JJ. is compatible with or must yield to the totality principle, I must next consider whether the sentence imposed on the attempt to possess a firearm accords with the governing principles.
[59] I do not gainsay that the absence of a completed crime is a relevant consideration in assessing the gravity of an offence, and thus a component of the fundamental principle of proportionality. This is so because offenders are punished for their wrongdoing in proportion to the culpability and harmfulness of their conduct. Stated in the form of an equation:
Culpability x Harm = Punishment
[60] The gravity of the harm associated with an immature attempt is arguably less than with a mature completed offence. On the other hand, moral culpability is often measured by an actor's state of mind, which does not differ, in most cases at least, between the preliminary and the completed offence. Often, the fact that the crime is incomplete is not due to any want of effort on the part of the accused, nor any lesser degree of responsibility.
[61] It is reasonable to conclude that Parliament had in mind this distinction between inchoate and completed crimes when it enacted the punishment provisions for attempts in s. 463(b). There, it set the maximum for attempts at "one-half of the longest term" to which a person who is guilty of the completed offence is liable.
[62] Since Parliament has taken into account the inchoate nature of an attempt in the maximum punishment on conviction, our task becomes to determine whether the sentencing judge made an error of law or an error in principle that had an impact on the sentence he imposed or imposed a sentence that was demonstrably unfit.
[63] I am satisfied that the trial judge's decision to impose a sentence of imprisonment of four years on the conviction for attempted possession of a firearm does not reflect error.
[64] This was the appellant's second conviction for an offence under s. 92(1) of the Criminal Code. He received a sentence of two years, five months for his first conviction. Recidivism warrants a more substantial sentence. The appellant was also subject to a weapons prohibition at the time of this offence. In addition, he committed this offence within a month of his involvement in a conspiracy to rob a man of $15,000. There, as well, he made several attempts to obtain a weapon. Finally, there was his use of a handgun in the pawn shop robbery in which he shot and severely wounded the shopkeeper. Four years was a fit sentence for this firearms offence, despite its inchoate nature.
[65] Returning to the issue of totality, the reasons of the trial judge demonstrate his fidelity to the principle and an informed application of it to the case at hand.
[66] The trial judge concluded that the drug and firearms convictions warranted a total sentence of seven years. As punishing separate delicts, the offences warranted consecutive sentences.
[67] The trial judge then considered whether those sentences should be served concurrently with or consecutive to the sentence the appellant was then serving. He decided that they should be served consecutively to the existing sentence as s. 718.3(4)(a) of the Criminal Code expressly permits. He then invoked the principle of totality to reduce the sentence he would otherwise have imposed to a sentence of four years. He also took into account the appellant's rehabilitative prospects, which he accurately characterized as minimal given his record of "virtually unceasing criminality since the age of 16".
[68] This ground of appeal fails.
The sentence of June 29, 2018
[69] On December 21, 2015, after a trial before Quigley J. sitting without a jury, the appellant was found guilty of aggravated assault, assault with an edged weapon, and possession of an edged weapon for a purpose dangerous to the public peace.
[70] The Crown took dangerous offender proceedings against the appellant. The application failed. However, the trial judge found the appellant to be an LTO and sentenced him to a term of imprisonment and a period of long-term supervision.
The circumstances of the offence
[71] In January 2015, the appellant was an inmate at Toronto East Detention Centre. In accordance with institutional practice, persons who have court appearances are moved from their usual range to a temporary overnight holding area in advance of their scheduled court appearance. The appellant was among a group moved on January 2, 2015.
[72] Among the group was an inmate who was scheduled to testify as a witness at a murder trial. The inmate asked correctional staff not to be moved to the overnight holding area. However, giving no reason for his request, he was transferred.
[73] The appellant and three others entered the victim's cell shortly after the doors were unlocked on the morning of January 3, 2015. The trial judge found that the appellant was one of two principals who had attacked the victim with a sharp-edged weapon. The victim sustained significant injuries requiring several sutures and staples to close them. The appellant disposed of the weapon.
[74] The victim refused to provide a statement to police. He declined to give evidence at trial despite a judge's order that he do so. The case for the Crown at the appellant's trial consisted of a video produced by the surveillance system at the detention centre. A security supervisor narrated the video and identified the participants.
The circumstances of the offender
[75] When this offence occurred, the appellant was 24. He was serving a sentence of 15 years and three months and awaiting the Crown's application to have him declared a dangerous offender.
[76] During the dangerous offender proceedings, two forensic psychiatrists expressed the opinion that the appellant had an anti-social personality disorder. From both actuarial and clinical perspectives, the appellant presented a high risk for both general and violent recidivism. However, both psychiatrists acknowledged that their ability to predict behaviour and risk 15 or 20 years away was markedly diminished.
The sentence imposed
[77] The trial judge was not satisfied that the Crown had established that the appellant was a dangerous offender. However, he found that the appellant was an LTO and sentenced him to imprisonment for a term of two and one-half years to be served consecutively to the sentence the appellant was then serving. The judge also ordered that, at the conclusion of his prison sentence, the appellant be subject to an LTSO for ten years.
The arguments on appeal
[78] The appellant does not contest the finding that he is an LTO. However, he argues that the trial judge erred not only in the length of the term of imprisonment he imposed, but also in the duration of the LTSO.
[79] The appellant says that a consecutive sentence of 2.5 years results in a total sentence of 21.5 years. This is a crushing sentence which extinguishes the appellant's prospects of release and rehabilitation. It results in a sentence that is disproportionate to the gravity of the appellant's offences and the degree of his responsibility for them. The appellant proposes a sentence of two years for this offence to be served consecutively to the existing sentences. This, together with his submissions in connection with the other sentences, would reduce the total sentence to 14 years.
[80] The second error alleges that the trial judge failed to consider whether a period of less than ten years would better reflect the objectives of the LTSO regime. Two objectives underpin the regime. The first is protecting the public from the offender's risk of re-offence. The second, and ultimate objective, is the rehabilitation of the LTO and their reintegration into the community: R. v. Ipeelee, 2012 SCC 13, at para. 48; R. v. Bird, 2019 SCC 7, at para. 37. These objectives require the sentencing judge to tailor the length of the LTSO to the objectives of the scheme.
[81] In this case, the appellant says, the trial judge lacked any expert evidence about the predictability of future recidivism beyond the term of imprisonment. In the absence of this evidence, the trial judge effectively treated the maximum term of an LTSO as a default position. This shifted the onus to the appellant to show why the maximum length was not justified. This evidentiary shortfall mandated an LTSO of no more than five years.
[82] According to the respondent, the reasons of the trial judge demonstrate his appreciation and application of the totality principle. The trial judge concluded that an appropriate sentence for the appellant's offence was one of five years. Then, after taking into account the principles of totality and parity (in light of the sentence imposed on the other principal), the trial judge reduced the sentence to one of two and one-half years.
[83] The respondent points out that even if totality considerations were more pressing in the appellant's case than in that of his co-principal, there were important factors that warranted a higher sentence for the appellant; different criminal histories, fewer mitigating factors, and dissimilar rehabilitative prospects. In addition, the principle of totality has a substantially lessened impact where an offender is serving the remnant of an existing sentence. Were it otherwise, an offender could be seen as benefiting from their prior offending. Totality would submerge the other objectives and principles that underpin the sentencing regime.
[84] Turning to the duration of the LTSO, the respondent contends that, when read as a whole, the trial judge's reasons reasonably support the ten-year LTSO. The appellant's offending history shows not only a complete lack of restraint in his behaviour and an attendant likelihood of causing, in the future, death, injury, or severe psychological damage to others, but also a pattern of persistent aggressive behaviour that shows a substantial degree of indifference about the reasonably foreseeable consequences of that behaviour.
[85] In addition, the appellant denies responsibility for most of his prior offences, and thus lacks the insight necessary to benefit from future treatment. He has a robust history of failing to comply with orders for community supervision and requires intense case management and supervision on release into the community. Should the appellant's substantial risk of re-offence be reduced at the conclusion of his term of imprisonment, he has the right to seek a reduction in the length of the LTSO. Conversely, the legislation does not permit the Crown to seek an increase in the period of supervision should a reduced period prove inadequate.
Discussion
[86] In my view, the appellant's arguments about the totality principle and the length of the LTSO both fail.
[87] A review of the sentencing judge's reasons betrays the claim that the totality principle was not accorded its due in the sentencing decision. The sentencing judge concluded that on a stand-alone basis, a fit sentence for the appellant on his conviction of aggravated assault was five years. I would agree with this assessment.
[88] The aggravated assault was a pre-concerted, armed, and cowardly attack on a fellow inmate in a remand facility. The appellant was a principal. The victim was confined in his cell by the appellant and three accomplices.
[89] An additional aggravating factor was that the victim was scheduled to testify as a witness at a murder trial. As a result, he was a "justice system participant" within s. 2 of the Criminal Code. It is a reasonable inference that the attack and the purpose of the court appearance were not complete strangers to each other. Even in the absence of an express provision, like s. 718.02 of the Criminal Code, I would consider these circumstances as aggravating on sentence.
[90] Instead of sentencing the appellant to a term of imprisonment of five years for the aggravated assault, the sentencing judge imposed a sentence of two and one-half years which he ordered to be served consecutively to the sentence the appellant was then serving. He invoked two sentencing principles when he did so: totality and parity. The former, to ensure that the cumulative sentence did not exceed the appellant's overall culpability for the myriad offences of which he had been convicted. The latter, to comport with s. 718.2(b) of the Criminal Code and the sentence imposed on the other principal in the assault.
[91] In my view, the custodial part of the sentence imposed reflects a proper application of the principle of totality.
[92] Turning now to the LTSO. Section 753.1(3)(b) requires a sentencing court that has found an offender to be an LTO to order that the offender be subject to an LTSO for a period that does not exceed ten years. The section is silent on the factors the sentencing judge is to consider in determining the duration of the LTSO. Although, it would seem that, as a sentencing provision, the imposition of an LTSO should engage the sentencing provisions of Part XXIII.
[93] Rehabilitation is the key feature of the LTO regime that distinguishes it from the dangerous offender regime. Thus, rehabilitation is an appropriate sentencing objective: Ipeelee, at para. 50.
[94] It is uncontroversial that in determining the length of the term of imprisonment to be imposed on an LTO, the sentencing judge does not take the subsequent period of long-term supervision into account. The principal of parity would be seriously compromised were courts to compare fixed sentences for non-LTOs with fixed sentences with LTSOs for LTOs. The decision about an LTO is based on controlling a serious risk in the future, not punishment for what the offender has done in the past: R. v. M. (L.), supra, at paras. 38, 41 and 50.
[95] The period for which an LTSO is in force should not be longer than necessary to obviate the risk of re-offence and to protect the public: M. (L.), at para. 44. Any period of long-term supervision established by the sentencing court may be reduced or terminated on an application to the superior court of criminal jurisdiction by the offender, a member of the Parole Board of Canada, or, with Board approval, by the offender's parole supervisor. The grounds for the reduction or termination are that the LTO no longer presents a substantial risk of re-offending and thereby being a danger to the community. The onus is on the applicant: Criminal Code, s. 753.2(3).
[96] No provision authorizes an application to extend the period of long-term supervision authorized by the sentencing court. The period of long-term supervision is not a "sentence" within the inclusive definition of that term in s. 673 of the Criminal Code.
[97] In my view, the sentencing judge did not err in fixing the period of the LTSO at ten years.
[98] The LTSO is future-focused. But sometimes, the best predictor of the future lies in the past. The appellant's substantial offending history shows a failure to restrain his behaviour and a likelihood of its repetition with a consequent probability of death, injury, or severe psychological damage to others as a result. It also reveals a pattern of persistent aggressive behaviour that shows a substantial degree of indifference to the reasonably foreseeable consequences of that conduct.
[99] Despite its limitations, the expert evidence, especially when taken together with the appellant's offending history, establishes a substantial risk of re-offence, and of violent re-offence. The appellant lacks insight and denies responsibility for his proven offences. Each is an impediment to future treatment. Thus far, the appellant has displayed an unwavering disregard for court orders. Taken as a whole, the evidence adduced at the hearing fully warranted the order made.
Disposition
[100] I would grant leave to appeal sentence, but dismiss the appeal from sentence.
Appeal dismissed.
End of Document
