DATE: 20020417
DOCKET: C28482

COURT OF APPEAL FOR ONTARIO

DOHERTY, GOUDGE and CRONK JJ.A.

B E T W E E N :

David M. Tanovich

HER MAJESTY THE QUEEN

for the applicant/

appellant

Respondent

• and -

Carol Brewer and

Robert Wadden

PIERRE JOSEPH CARRIÈRE

for the respondent

Applicant/Appellant

Heard: March 27, 2002

On appeal from the conviction entered by Justice Doyle on October 26, 1996 and the sentence imposed dated November 5, 1996.

BY-THE-COURT:

1. [1] Mr. Carrière was convicted of second degree murder in October 1996. His appeal came on for hearing on September 19, 2001. On October 30, 2001 this court released reasons holding that the trial judge had misdirected the jury on the issue of intoxication.[^1] On the hearing of the appeal, counsel had agreed that if the appellant was successful only on the grounds of appeal relating to intoxication that this court should substitute a manslaughter conviction pursuant to s. 686(3) of the Criminal Code and sentence Mr. Carrière on that conviction. For the reasons outlined in our judgment, we accepted those submissions.

2. [2] After allowing counsel an opportunity to gather the relevant sentencing material, the case came on for sentencing on March 27, 2002. Mr. Carrière has expressly waived his right to be present during this proceeding. The Crown has not sought Mr. Carrière’s attendance and the court decided to proceed with sentencing in his absence given his clear indication that he did not wish to attend the proceeding.

3. [3] The facts surrounding the homicide are set out in the reasons allowing the appeal from conviction and need not be repeated here. It is sufficient to say that the homicide occurred in the course of an armed robbery of a convenience store. Mr. Carrière and a confederate entered the store late in the evening intent upon robbing it. Mr. Carrière was armed with a loaded .357 magnum and his face was covered. Upon entering the store, Mr. Carrière chased the owner to the back of the store where a struggle ensued. In the course of the struggle, Mr. Carrière shot the owner twice. Mr. Carrière completed the robbery and fled the store with his accomplice. He was arrested several days later.

4. [4] Mr. Tanovich, counsel for Mr. Carrière, and Ms. Brewer, counsel for the Crown, agree that this was a very serious crime demanding a substantial penitentiary term. Mr. Tanovich submits that had Mr. Carrière not been in custody at any time pending his sentence, a sentence in the range of 10 to 12 years would be appropriate. Ms. Brewer submits that having regard to the nature of the offence and Mr. Carrière’s antecedents, a sentence in the range of 15 to 20 years would be appropriate if Mr. Carrière had not been in custody prior to his sentencing.

5. [5] We agree with counsel that a very lengthy penitentiary sentence is required.

6. [6] Before turning to the specific considerations relevant to the determination to the appropriate sentence, it is necessary to set out the history of Mr. Carrière’s incarceration in connection with this offence. Any sentence this court imposes will run from the date that it is imposed. The sentence must, however, take into consideration Mr. Carrière’s incarceration on the charge prior to this court’s imposition of sentence. Mr. Carrière was arrested in late January 1994. He was eventually sentence in November 1996, about two years and nine months after his arrest. He had been in custody five years and four months since his sentencing.

7. [7] Mr. Tanovich contends that Mr. Carrière should be given two-for-one credit for his pre-sentence incarceration (2 years, nine months) and something more than one-for-one credit for his post-sentence incarceration (5 years, four months). On Mr. Tanovich’s calculations, Mr. Carrière has served the equivalent of about a 12 year sentence. Crown counsel submits that Mr. Carrière should be given one-for-one credit for all of his incarceration resulting in a total of slightly more than 8 years.

8. [8] A convicted person is entitled to have pre-sentence incarceration taken into consideration. The quantification of the credit, if any, to be given for pre-sentence custody is within the discretion of the sentencing court, although two-for-one credit is commonly given. Mr. Carrière’s pre-sentence custody did not, however relate exclusively to this charge. Shortly after he was arrested on this charge he was charged with first degree murder. He was subsequently convicted of that charge and that conviction is presently under appeal. In that circumstance, we do not think that two-for-one credit would be appropriate. We give Mr. Carrière 3 years’ credit for the time he spent in custody prior to custody (2 years, nine months).

9. [9] In determining the appropriate sentence, we will proceed in two steps. First, we will determine what would have been the appropriate sentence for manslaughter had Mr. Carrière been convicted of manslaughter at the end of his trial in November 1996. We will then determine what sentence should now be imposed to put Mr. Carrière in about the same position he would have been in had that appropriate sentence been imposed in November 1996.

10. [10] Manslaughter can run the gamut from an intentional killing to an unintentional and almost accidental killing. We, of course, accept that the Crown could not prove either of the intentions required for murder under s. 229(a) of the Criminal Code, in part because of the appellant’s consumption of alcohol. We are, however, satisfied that in terms of culpability, the appellant’s mental state closely approached the level of culpability of the mental states described in s. 229(a). Mr. Carrière formed a plan to rob a convenience store. In furtherance of that plan, he entered the convenience store late at night armed with a loaded .357 magnum. He brandished the weapon and immediately pursued the victim. We can only conclude that Mr. Carrière was prepared to use the gun to further his criminal purpose. Use of a weapon like a .357 magnum almost always results in death or grievous injury. In terms of moral culpability, this case comes very close to the murder end of the manslaughter spectrum.

11. [11] There were additional aggravating factors. As this court has often said, operators of convenience stores are a particularly vulnerable group. They must stay open late at night to survive economically and are easy targets for persons like Mr. Carrière.

12. [12] It is also of some significance that Mr. Carrière shot the victim in the presence of his son, Derek Day. In a very real sense, Mr. Day is also a victim of this homicide. He will no doubt live the rest of his life with the image of his father bleeding to death on the floor of the store.

13. [13] Finally, Mr. Carrière’s criminal conduct demonstrated premeditation. He also took efforts to cover-up his offence after the robbery occurred.

14. [14] Considering the nature of this offence, this is exactly the kind of case envisioned by Chief Justice Lamer in R. v. Vaillancourt (1987), 1987 SCC 2, 39 C.C.C. (3d) 118 at 139 (S.C.C.) where he observed that if manslaughter occurs as the result of the use of a gun in the commission of another offence, “a very stiff” sentence will be necessary.

15. [15] Not only do the circumstances of the offence demand a denunciatory sentence, Mr. Carrière approaches the “worst offender” category. His criminal record consists of some 52 prior offences beginning when he was 18 and continuing without interruption through to his arrest in January 1994. He has spent most of his adult life in jail. That criminal record includes convictions for robbery (1981, 1986), rape (1981), assault with a weapon (1990), and assault (1993). Mr. Carrière has received penitentiary sentences on two prior occasions. Sadly, he seems totally unable to remain at large for any appreciable period of time without committing further serious criminal offences.

16. [16] Like many people who have the kind of record Mr. Carrière has accumulated, he comes from a disadvantaged and troubled background. It is fair to say that Mr. Carrière has had very little chance in life. Unfortunately, whatever the forces may be that have caused Mr. Carrière to live the life he has led, the present reality is that Mr. Carrière presents a danger to the community. He has shown himself to be unable to live lawfully within the community.

17. [17] Mr. Carrière is an aboriginal. Section 718.2(e) directs the sentencing court to consider that status in determining the appropriate sentence. That consideration is intended to ameliorate the serious problem of overrepresentation of aboriginal people in our jails and to encourage the sentencing court to have recourse to a more restorative approach to sentencing. The provision is also a statutory recognition of the systemic disadvantage suffered by aboriginals in the Canadian community. Section 718.2(e) does not, however, mean that a sentence should be automatically reduced by virtue of the accused’s status as an aboriginal offender. As with all sentences, sentences imposed on aboriginals must depend on a consideration of all of the relevant sentencing factors. Where the offence is a violent and serious one and the principles of denunciation and deterrence dominate the sentencing calculus, the appropriate sentence will often not differ as between aboriginal and non-aboriginal offenders: R. v. Wells (2000), 2000 SCC 10, 141 C.C.C. (3d) 368 at 386 (S.C.C.).

18. [18] Having regard to the purposes of sentencing as set out in s. 718 of the Criminal Code and to the totality of the circumstances in this case, we conclude that the objectives of denunciation, deterrence and isolation must be given paramount consideration. Other considerations, such as rehabilitation cannot be ignored but must, in our view, assume a subordinate role. Having regard to these objectives as we weigh them, and bearing in mind Mr. Carrière’s aboriginal status, we conclude that a fit sentence as of November 1996 would have been 17 years. Giving Mr. Carrière credit for three years as a result of his pre-sentence custody, we would have imposed a sentence of 14 years were we sentencing Mr. Carrière in November 1996. Had he received that sentence, he would have been eligible for mandatory release in April 2006 after serving two-thirds of that sentence. To achieve the same results with the sentence we must now impose, we would impose a sentence of 6 years running from the release of these reasons. On this sentence Mr. Carrière will be eligible for mandatory release in April 2006. His sentence will expire in April 2008.

19. [19] We realize that had Mr. Carrière received a 14 year sentence in 1996, his sentence would not have expired until 2010, some two years later than the sentence we choose to impose. However, had we imposed a sentence that expired in 2010 (that is, a 8 year sentence), Mr. Carrière’s mandatory release date would not have arrived until September 2007, some 16 months after his mandatory release date had he been sentenced to 14 years in November 1996. We do not think that Mr. Carrière should be disadvantaged by the delay in the process. Consequently, in choosing between a somewhat earlier warrant expiry date, and a somewhat later mandatory release date, we have opted for the former.

20. [20] At trial Mr. Carrière was also convicted of robbery. He received a concurrent sentence of life imprisonment. He appealed that sentence by way of a prisoner’s appeal. That appeal was subsequently abandoned. Crown counsel agrees that the appeal from the robbery sentence should be reinstated and a concurrent sentence of 6 years imposed on the robbery charge.

21. [21] Crown counsel also asks that we impose a lifetime weapons prohibition pursuant to s. 109(3). Mr. Tanovich does not oppose this request. We think the Crown’s request is appropriate and impose a lifetime weapons prohibition under s. 109(3).

22. [22] Crown counsel asks that we make a DNA order pursuant to s. 487.052(1). We are satisfied that we have jurisdiction to make that order, and an order will go in the form of the draft order submitted by Crown counsel.

23. [23] Finally, Crown counsel argues that in the light of Mr. Carrière’s criminal record which includes many breaches of court orders, this is a proper case for an order directing that Mr. Carrière is not eligible for parole until at least one-half of his sentence has been served. Mr. Carrière’s conduct prior to his incarceration in 1994 justifies the order sought by the Crown. However, material placed before the court indicates that Mr. Carrière’s behaviour has improved significantly in recent years. He has discovered his aboriginal roots while in custody and with the help of an aboriginal support group, has developed an appreciation of his heritage and his culture. This new found appreciation seems to have given Mr. Carrière a focus and a sense of self-worth that was sadly missing in his life. Mr. Carrière has been moved to a medium security institution. Given this progress, we think it is best that the question of Mr. Carrière’s potential parole be left entirely to the parole board who will be in a position to assess Mr. Carrière’s progress and determine when, if ever, some form of early release would be appropriate. We would not grant the parole ineligibility order requested by the Crown.

RELEASED: “DD”

“APR 17 2002”

“Doherty J.A.”

“S.T. Goudge J.A.”

“E.A. Cronk J.A.”

[^1]: The court’s reasons are recorded at (2001), 2001 ONCA 8609, 159 C.C.C. (3d) 51 (Ont. C.A.).