Publication Ban Warning
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.
486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.
Court of Appeal for Ontario
Date: 20230818 Docket: COA-23-CR-0226
Judges: Hourigan, Brown and Monahan JJ.A.
Between:
His Majesty the King Respondent
and
J.W. Appellant
Counsel:
Paul Socka, for the appellant Brent Kettles, for the respondent
Heard: August 17, 2023
On appeal from the sentence imposed on April 15, 2022 by Justice Catherine D. Aitken of the Superior Court of Justice.
Reasons for Decision
A. Overview
[1] In the early morning hours of May 27, 2018, the appellant repeatedly sexually assaulted the complainant K.G., a worker at the group home where he lived. He threatened to kill her if she told anybody and recorded her, under duress, saying that the sexual activity was consensual.
[2] The appellant pleaded guilty to sexual assault, uttering a death threat and unlawful confinement. He received a global sentence of nine years’ imprisonment, prior to taking into account credit for pre-sentence custody. He now appeals his sentence on three grounds, arguing that the sentencing judge erred by: (i) increasing his sentence because he would need longer than other offenders to complete institutional programming; (ii) miscalculating the duration of his pre-sentence custody; and (iii) refusing to grant enhanced pre-sentence credit for the time the appellant spent at Providence Care Hospital (“Providence”).
[3] The parties agree that the sentencing judge miscalculated the duration of pre-sentence custody by 22 days and, to that extent, the appeal is allowed. For the reasons explained below, the appeal in all other respects is dismissed.
B. Background
[4] K.G. was working alone at the appellant’s group home the night of May 26-27, 2018. The appellant called K.G. up to his room and forced vaginal intercourse on her, ejaculating on her without protection. He then told her he was going to kill her and dump her body in a lake. During the assault, the appellant took K.G.’s phone so she could not call for help. He forced K.G., under duress, to make a degrading and humiliating recording, claiming that she had consented to have sex with him.
[5] K.G. briefly managed to escape. The appellant chased her, threw her up against the wall and dragged her back to the bedroom where he sexually assaulted her again. K.G. stands 5’4” tall, while the appellant is 6’5” and weighed between 230 and 240 pounds at the time. K.G. managed to text “911” to an offsite co-worker, who alerted police.
[6] Both K.G. and the appellant are Indigenous. In her Victim Impact Statement, K.G. described that the assault left her “terrified to work in [her] field of choice” and made her feel “hopeless”, “dirty”, and “worthless”. She now suffers from panic attacks and night terrors, and struggles with being physically touched, even by family. Her father described the call he received telling him what happened as “any father’s worst nightmare”.
[7] The appellant ultimately pleaded guilty to the three offences identified above after protracted proceedings. He was convicted and sentenced on April 14, 2022. During the prolonged proceedings, the appellant resiled from three proposed guilty pleas, fired three different lawyers, and was later found unfit and subject to a treatment order.
[8] On sentencing, both parties agreed that the appellant’s offenses called for a lengthy period of incarceration. The Crown’s position on sentencing was 8 to 10 years. The appellant’s position was 7.5 years.
[9] The sentencing judge imposed a sentence of nine years. She recognized the appellant’s traumatic upbringing and diagnoses of Fetal alcohol spectrum disorder (“FASD”) and schizophrenia, as well as his “extremely low IQ scores” and “significant cognitive deficits”. She found that there were “many aggravating factors”, including the violence involved, the prolonged nature of the assault, and the serious impact it had on K.G., a vulnerable Indigenous woman. The sentencing judge found that the appellant’s guilty plea was not significantly mitigating given the history of the proceedings. She further held that the appellant had put K.G. and her family through further, unnecessary emotional turmoil through his conduct throughout the proceedings and showed no credible expression of remorse.
[10] At the same time, the sentencing judge found that the appellant’s mental illness and cognitive deficits were significant mitigating factors. Accordingly, she rejected the 10-year maximum sentence asked for by the Crown. She went on to note that, while one might conclude, as urged by defence counsel, that a sentence of 7-8 years could meet the primary objectives of denunciation and general deterrence, she found that a longer sentence was required in order to protect society and keep women in the community safe. She was particularly concerned about the safety of vulnerable Indigenous women, and women living or working in vulnerable situations. In her view there was a real concern that until the appellant obtained targeted treatment in an institution, he would continue to pose a risk of sexually reoffending when released into the community. Given these considerations, she ultimately concluded that a global sentence of nine years was appropriate in the circumstances.
[11] Finally, the sentencing judge awarded pre-trial credit at the rate of 1.5:1 for the time the appellant spent at the Quinte Detention Centre, but only 1:1 credit for the time he was detained at Providence. The sentencing judge found that the enhanced Summers credit (so-called based on R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575) was not appropriate for the time spent at Providence given the extensive delays in the proceedings caused by the appellant, as well as the fact that the conditions of custody at Providence were such that the rationale for enhanced pre-trial credit did not apply.
C. Issues
- Did the sentencing judge err in principle by imposing an unfit sentence based on the anticipated time the appellant would need to complete recidivism programming?
- Did the sentencing judge miscalculate the total duration of the appellant's pre-trial custody?
- Did the sentencing judge err in law by refusing to grant Summers credit for time spent in pre-trial custody at Providence Care Hospital?
D. Discussion
(1) The Nine-year Sentence is Fit and Reflects No Error in Principle
[12] The appellant argues that the sentencing judge erred by extending his sentence in order to provide sufficient time to complete institutional sexual offender programming, given his mental health and cognitive disabilities. The appellant relies upon the sentencing judge’s statement that a 7-8 year sentence would be appropriate to address the primary objectives of denunciation and general deterrence. The appellant argues that, having found that a 7-8 year sentence would be appropriate to address these particular objectives, there was no basis for the sentencing judge to increase it due to the anticipated time the appellant would need to complete institutional recidivism programming. He further argues that the sentencing judge’s analysis was contrary to this court’s holding in R. v. Spilman, 2018 ONCA 551, 362 C.C.C. (3d).
[13] In assessing this ground of appeal, we note that sentencing determinations are owed considerable deference on appeal. Appellant intervention is justified only where (i) the sentence imposed is demonstrably unfit; or (ii) there is an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor, and it appears from the trial judge’s decision that such an error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 44, 51; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 26-28.
[14] It should also be noted that an appellate court may not intervene in a sentencing decision simply because it would have weighed the relevant factors differently. The choice of the sentencing range, or of a category within a range, falls within the trial judge’s discretion and cannot, in itself, constitute a reversible error. An appellate court may only intervene if the sentence a trial judge imposed is demonstrably unfit: Lacasse, at para, 51; R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, at paras. 29-30, 117-122, 229-237.
[15] In our view, the appellant’s argument on this first ground of appeal proceeds on the basis of a misapprehension of the sentencing judge’s reasons. The sentencing judge did not rely solely on the appellant’s cognitive limitations or the length of time it would take him to complete programming to determine his sentence. Rather, she fixed a sentence within the appropriate range to both enable the appellant to engage in rehabilitative programming and to protect society and keep women in the community safe. It is entirely appropriate for a sentencing judge to consider an offender’s dangerousness, or the length of time it might take them to complete programming, as relevant factors in their assessment of an appropriate sentence within the applicable range. In fact, the Criminal Code expressly requires that sentencing judges turn their minds to the protection of the public and to rehabilitating offenders in determining a fit sentence: Criminal Code, ss. 718, and 718 (d).
[16] Nor is the consideration of such factors contrary to this court’s holding in Spilman. In Spilman, (which involved the sentencing of a dangerous offender), Watt J.A. noted at para. 40 that outside of the dangerous offender context, a sentencing judge may not determine the length of a sentence solely by reference to the time needed to complete essential or recommended rehabilitative programs. Focusing exclusively on this single factor would not only be contrary to the express wording of s. 718 of the Criminal Code, but could also result in a disproportionate sentence, or a sentence outside the applicable range, simply because of the time needed to complete programming. But Spilman did not call into question the well-established principle that, in determining a fit sentence within an appropriate range, sentencing judges may turn their minds to factors such as the protection of the public and the goal of rehabilitating offenders: R. v. Knoblauch, 2000 SCC 58, [2000] 2 S.C.R. 780, at para. 16.
[17] No issue is taken with the sentencing judge’s determination that the appropriate range of sentence in this case was between 7 to 10 years. In fixing a sentence within that range, she chose a sentence that would give effect to denunciation and deterrence, while also engaging in an individualized assessment of the appellant’s rehabilitative needs and the need to protect society and, particularly, vulnerable women. The sentence imposed reflected the brutal and repeated nature of the sexual violence perpetrated against a vulnerable Indigenous woman while she was unlawfully confined. The trial judge considered the length of time the appellant would realistically need to complete targeted rehabilitative programming as one factor (amongst many) in fixing his sentence within a reasonable range. This ground of appeal is therefore dismissed.
(2) The Sentencing Judge Miscalculated the Duration of Pre-Sentence Custody
[18] It is agreed that the sentencing judge miscalculated the appellant’s pre-sentence custody by 22 days. Submissions on sentence were made on March 8, 2022. On that date, counsel for the Crown and appellant both submitted that the appellant had accumulated pre-sentence custody of 790 days of jail and 570 days spent at Providence for a total of 1360 days. However, the appellant had in fact spent a total of 812 days in jail, and the correct number of days between the appellant’s arrest and the sentencing hearing was 1381 days, 22 days more than estimated by counsel.
[19] Relying on the erroneous estimates provided by counsel, and adding 37 additional days to account for the time between sentencing submissions and the date upon which sentence was pronounced, the trial judge credited the appellant with 790 days of jail and 607 days at Providence, for a total of 1397 days.
[20] The appellant’s appeal against sentence is therefore allowed to the extent of crediting him an additional 22 days of pre-sentence custody, enhanced at a rate of 1.5:1, for a total of 33 days.
(3) The Sentencing Judge Made No Error in Refusing to Award Enhanced Credit for the Time Spent at Providence
[21] The appellant contends that the sentencing judge erred in principle by refusing to grant him enhanced Summers credit for time he spent in pre-sentence custody at Providence.
[22] The decision of whether and how much credit to award an offender for pre-sentence custody is highly discretionary. There is no automatic entitlement to enhanced credit for pre-sentence custody. The onus of establishing entitlement to credit for pre-sentence custody, and any enhancement of that credit, is on the offender.
[23] The sentencing judge gave detailed reasons for her decision not to award enhanced credit for the time the appellant spent at Providence. She recognized that enhanced pre-sentence custody serves both quantitative and qualitative purposes.
[24] Regarding the quantitative rationale, the sentencing judge, relying on Summers, held that “Mr. W’s lengthy pre-sentence custody was due in great measure to his frequently changing his mind and changing his lawyers.” While the sentencing judge did not expressly describe the appellant’s conduct as “wrongful conduct”, her reference to Summers leaves little doubt that she viewed his conduct as wrongful.
[25] This finding was neither factually nor legally in error. There was ample evidentiary basis for the sentencing judge’s conclusion that the appellant had inordinately delayed proceedings by repeatedly scheduling guilty pleas and then resiling from them, and by repeatedly firing his lawyers. As noted in Summers, delay caused by an accused person is a proper basis to deny enhanced credit for the time spent in pre-sentence custody or on stringent bail terms. The sentencing judge made no error in concluding that, during the time in which the appellant was legally fit, he had delayed proceedings and lengthened his own pre-sentence custody.
[26] The sentencing judge’s further finding that the qualitative rationale for granting enhanced Summers credit did not apply in the circumstances also reflects no error. The sentencing judge reviewed in detail the appellant’s living conditions while at Providence. She found that the conditions at Providence were not only less harsh than those in the Quinte Detention Centre, but were also comparable or favourable to those the appellant experienced while living in the community.
[27] The qualitative rationale for Summers credit is to recognize the time in pre-trial detention is often more onerous than post-sentence incarceration. It is a fact-dependent and discretionary exercise. We see no error in the sentencing judge considering the unique facts of the appellant’s living arrangements, or the accommodations available in hospital, to determine that his pre-sentence custody was neither harsh nor onerous.
[28] In our view, the trial judge’s discretionary decision to deny enhanced credit for the time spent at Providence, based on the particular circumstances experienced by the appellant, reflected no error. This ground of appeal is therefore dismissed.
E. Disposition
[29] Leave to appeal sentence is granted and the appeal is allowed to the extent that the appellant is awarded 33 additional days of credit against the sentence imposed, on account of pre-sentence custody. The appeal is otherwise dismissed.
“C.W. Hourigan J.A.”
“David Brown J.A.”
“P.J. Monahan J.A.”
