DATE: 20020917
DOCKET: C38129

COURT OF APPEAL FOR ONTARIO

CHARRON, SIMMONS AND ARMSTRONG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

(Respondent)

• and -

DONALD BLAINE HOWLETT

(Appellant)

Nadia Thomas, for the respondent
Donald Blaine Howlett, appearing in person

Heard: August 19, 2002

On appeal from a judgment of Justice C. Raymond Harris of the Ontario Court of Justice dated March 19, 2002.

CHARRON J.A.:

[1] This is an appeal against sentence. The appellant pled guilty to one count of driving while disqualified contrary to s. 259(4) of the Criminal Code. He was sentenced to imprisonment for one year, probation for 18 months and a driving prohibition for three years.

[2] The appellant was stopped by the police on January 17, 2002 for a traffic violation. He could not provide a driver’s licence and gave a false name. Further investigation revealed his true identity and the fact that he was prohibited from driving under a number of suspensions, the most recent being a court-imposed prohibition for three years commencing on April 28, 2000.

[3] The appellant’s criminal record was introduced into evidence. It spanned over a period of 15 years from 1985 to 2000 and included more than 50 convictions, 10 of which were for driving while disqualified and numerous others for disrespecting court orders.

[4] At the time of sentencing, certain facts relating to a charge of threatening were read in on consent of both Crown and defence counsel. On February 7, 2002, the police attended the appellant’s residence in reference to another investigation involving the appellant’s spouse, Brenda Howlett. In relating her version of events, she advised the police officers that, on a prior date, the appellant had threatened to punch her glasses from her face. The appellant was charged accordingly. Those facts were admitted to by the appellant through his counsel. Both the Crown and defence counsel took the position that these facts could be taken into account pursuant to the principle of sentencing in Garcia v. Silva. The charge of threatening was then withdrawn.

[5] Defence counsel made detailed submissions on sentence in respect of the appellant’s personal circumstances. He submitted that a conditional sentence should be imposed in addition to the 41 days the appellant spent in pre-trial custody. Counsel also acknowledged in his submissions that Crown counsel would be seeking a probation order in relation to the threatening incident, on conditions that the appellant take an anger management course and that he not communicate with Ms. Howlett without her consent and the consent of the probation officer. Counsel indicated that the appellant wanted to take an anger management course and specifically asked that this condition be made part of the probation order. Counsel further indicated that his client realized that the non-communication condition would be imposed and that he had a place to stay upon his release. At the conclusion of defence counsel’s submissions, the sentencing judge asked the appellant whether he wanted to add anything. He declined to do so.

[6] Crown counsel submitted that a conditional sentence was not appropriate and sought an additional year in jail in addition to the pre-trial custody. Crown counsel also sought a probation order in relation to “the charge not pled to” on the same conditions that had been described by defence counsel.

[7] The sentencing judge reviewed the appellant’s record and concluded that he was “a totally unsuitable candidate for community supervision.” He stated that the offence was aggravated by the fact that the appellant had provided a false name on apprehension and by the other facts that were read in “pursuant to the principle in Garcia v. Silva”. The trial judge was of the view that Crown counsel took a “restrained approach” on sentencing. However, since the appellant entered his plea of guilty knowing that Crown counsel would take that position, he acceded to Crown counsel’s recommendation and sentenced the appellant accordingly.

[8] The appellant represented himself on this appeal. He submitted that the sentencing judge made the following three errors:

a) he failed to give him credit for the 41 days spent in pre-trial custody;

b) he sentenced him to a period of probation in relation to a threatening charge that was withdrawn; and

c) he imposed a sentence that was too harsh.

[9] I see no merit to the contention that the sentencing judge failed to give the appellant credit for the time he spent in pre-trial custody. Counsel for the appellant specifically requested in his submissions that his client be given credit for 82 days on account of the 41 days spent in custody and the sentencing judge made express reference to the pre-trial custody when he imposed an additional year in jail.

[10] I see no reason to interfere with the imposition of the probation period in relation to the threatening charge. The facts related to the threatening charge were read in on consent of both Crown and defence counsel and agreed to by the appellant through his counsel. Both counsel acknowledged that the court could take these facts into account in sentencing. It is apparent from the record that they also agreed that these facts would form the basis for the imposition of a probation order on conditions as set out by counsel. The charge was then withdrawn by Crown counsel.

[11] Express reference was made to the principle in R. v. Garcia and Silva, 1969 450 (ON CA), [1970] 3 C.C.C. 124 (Ont. C.A.) as the basis for following this procedure. This court in Garcia and Silva recognized that where an accused is sentenced for one offence, a judge may take into consideration other convictions and, on some occasions and under proper safeguards, other outstanding charges. This procedure has been codified by parts of s. 725 of the Criminal Code: see R. v. Edwards (2001), 2001 24105 (ON CA), 54 O.R. (3d) 737 (C.A.) for an analysis of the principles governing the use of untried offences in sentencing.

[12] As this court recognized in Edwards, s. 725 is consistent with the presumption of innocence as it allows for the punishment or sentencing of an offender for untried offences only when appropriate safeguards are taken. Of particular relevance to this case are the provisions contained in s. 725(1)(b.1):

725. (1) In determining the sentence, a court

(b.1) shall consider any outstanding charges against the offender, unless the court is of the opinion that a separate prosecution for one or more of the other offences is necessary in the public interest, subject to the following conditions:

(i) the Attorney General and the offender consent,

(ii) the court has jurisdiction to try each charge,

(iii) each charge has been described in open court,

(iv) the offender has agreed with the facts asserted in the description of each charge, and

(v) the offender has acknowledged having committed the offence described in each charge

[13] Although s. 725(1)(b.1) was not referred to on sentencing, it is our view that the procedure followed in this case essentially complied with its requirements.

[14] Subsection 725(2) also provides that no further proceedings be taken on the outstanding charge considered in determining the sentence and requires that the court note the information accordingly. We were not provided with a copy of the information on the threatening charge. Hence, we do not know whether the appropriate notation was made. However, the record reveals that the threatening charge was appropriately withdrawn and the failure to comply with s.725(2), if any, does not affect the validity of the sentence. I would not give effect to this ground of appeal.

[15] Finally, I see no merit in the contention that the sentence was too harsh. It was entirely fit.

[16] I would grant leave to appeal the sentence but dismiss the appeal.

RELEASED: SEP 17 2002

Signed: “Louise Charron J.A.”

“I agree Janet Simmons J.A.”

“I agree Robert P. Armstrong J.A.”