Her Majesty the Queen v. Fice [Indexed as: R. v. Fice]

65 O.R. (3d) 751

[2003] O.J. No. 2617

Docket No. C38572

Court of Appeal for Ontario

Charron, Moldaver and Feldman JJ.A.

June 30, 2003

*Motion to appoint counsel granted. Application for leave to appeal to the Supreme Court of Canada granted February 19, 2004 (Bastarache, LeBel and Deschamps JJ.).

Criminal law -- Sentencing -- Principles of sentencing -- Conditional sentence -- Pre-trial custody -- Trial judge concluding that but for pre-trial custody penitentiary sentence was required -- Judge may consider pre-trial custody when determining whether appropriate sentence falls within range for which conditional sentence regime available -- Sentencing judge correctly holding that appropriate to impose conditional sentence of 14 months' imprisonment as 16 months' pre-trial custody was equivalent to three years' imprisonment -- Crown appeal from sentence dismissed.

The accused pleaded guilty to aggravated assault, fraud over $5,000, personation, forgery and breach of recognizance. She spent 16 months in pre-trial custody. The trial judge treated this time as equivalent to almost three years' imprisonment and determined that a global sentence of 14 additional months would be appropriate. The trial judge then determined that, in the circumstances of this case, including the accused's remorse and guilty plea and the psychiatric evidence indicating that she was not a danger to the public generally, the sentence [page752] should be served in the community. The Crown appealed, arguing that the trial judge erred in principle in taking pre-trial custody into account in determining the appropriate range of sentence as a first step in determining whether a conditional sentence should be imposed.

Held, the appeal should be dismissed.

In determining the appropriate range of sentence, a sentencing judge may take pre-trial custody into account, either as a general principle of sentencing or pursuant to s. 719(3) of the Criminal Code, R.S.C. 1985, c. C-46. The first criterion that must be met for a conditional sentence under s. 742.1(a) of the Code is that "the court imposes a sentence of imprisonment of less than two years". In determining the "sentence to be imposed", s. 719(3) allows the court to count pre-trial custody. Section 719(3) is not merely a principle of sentencing; rather, it gives the sentencing judge a substantive power to count pre-trial custody in fixing the length of a sentence. If Parliament had intended to curtail the court's power to consider pre-trial custody in the application of s. 742.1, it could have done so in express language. Even if the language of ss. 742.1 and 719(3) were ambiguous as to the proper role of pre-trial custody in the conditional sentencing context, which it is not, the result would be the same. Where provisions in penal statutes affecting the liberty of a person are ambiguous, the proper approach is to interpret the legislation in a manner favourable to the accused. In this case, that approach led to the conclusion, therefore, that no impediment exists barring the consideration of pre-trial custody in the determination of the appropriate range of sentence for the purposes of the conditional sentencing regime. R. v. Harris (2002), 167 C.C.C. (3d) 246, 2002 BCCA 152; R. v. McDonald (1998), 1998 13327 (ON CA), 40 O.R. (3d) 641, 54 C.R.R. (2d) 189, 127 C.C.C. (3d) 57, 17 C.R. (5th) 1, (C.A.); R. v. McIntosh, 1995 121 (SCC), [1995] 1 S.C.R. 686, 21 O.R. (3d) 797n, 1995 124 (SCC), 178 N.R. 161, 95 C.C.C. (3d) 481, 36 C.R. (4th) 171; R. v. Persaud (2002), 2002 44931 (ON CA), 26 M.V.R. (4th) 41 (Ont. C.A.); R. v. Predenchuk (2000), 2000 SKCA 122, 199 Sask. R. 264, 232 W.A.C. 264 (C.A.); R. v. Runns (2002), 219 Sask. R. 255, 272 W.A.C. 255, 165 C.C.C. (3d) 217, 2002 SKCA 48 (C.A.); R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, 184 D.L.R. (4th) 385, 252 N.R. 332, 143 C.C.C. (3d) 129, 32 C.R. (5th) 58 (sub nom. R. v. W. (L.W.))

APPEAL by the Crown from a sentence.

R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 142 Man. R. (2d) 161, 182 D.L.R. (4th) 1, 249 N.R. 201, 212 W.A.C. 161, [2000] 4 W.W.R. 21, 140 C.C.C. (3d) 449, 49 M.V.R. (3d) 163, 30 C.R. (5th) 1 (sub nom. R. v. P. (J.K.D.)), consd Other cases referred to Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 718-718.2, 719(3), 742.1

Philip Perlmutter, for appellant. D. Edwin Boeve, for respondent.

The judgment of the court was delivered by

CHARRON J.A.: -- [page753]

Overview

[1] The central issue in this appeal is whether it is open to a sentencing judge to take into account pre-sentence custody in determining whether the sentence to be imposed falls within the range of sentences that engages the conditional sentencing regime. The respondent, Lynn Fice, pled guilty to aggravated assault, fraud over $5,000, personation, forgery and breach of recognizance. At the time of her sentencing, Ms Fice had spent approximately 16 months in pre-sentence custody. Treating this time as equivalent to almost three years' imprisonment, the sentencing judge determined that a global sentence of 14 additional months would be appropriate. The sentencing judge then determined that, in the circumstances of the case, the sentence should be served conditionally. The Crown appeals on the grounds that the sentencing judge erred in principle in determining that it was open to him to impose a conditional sentence, or alternatively, that he erred in finding that a conditional sentence was appropriate in the circumstances.

Facts

[2] In June 2000, Ms Fice used the name of her mother, Barbara Taylor, to obtain a lease of an automobile without Ms Taylor's knowledge or permission, forging her mother's signature on the lease application. She also used her mother's bank account in order to pay for the lease. Later, when Ms Fice had an accident involving the car, she identified herself to the investigating officer as Barbara Taylor. Ms Taylor only learned about her daughter's activities when she received a phone call from her insurance broker on August 10, 2000. The next day, while the two women were in Ms Taylor's bedroom, Ms Fice swung a baseball bat, striking her mother on the back of the head. Further strikes with the bat followed, and a struggle ensued, in the course of which Ms Fice grabbed a telephone cord and tried to wrap it around her mother's neck. Ms Taylor eventually convinced her daughter to stop, and Ms Fice ultimately called 9-1-1 and told the operator that she had hit her mother with the baseball bat. With the help of the operator, Ms Fice administered first aid. Medical personnel who subsequently arrived on the scene assessed Ms Taylor's wounds as life-threatening.

[3] Ms Fice was arrested at the scene. She provided a videotaped statement, in which she admitted striking her mother several times with the baseball bat, but she claimed it had been an accident. She was initially denied bail, but was later released into the custody of the Elizabeth Fry Society after a bail review [page754] in September 2001. On October 22, 2001, Ms Fice pled guilty to aggravated assault, fraud over $5,000, personation and forgery. The proceedings were adjourned pending completion of a psychiatric assessment. In March 2002, Ms Fice was rearrested and returned to custody for breaching a condition of her release by failing to comply with house rules relating to keeping medication. The proceedings continued before the sentencing judge over the course of several days in June 2002, during which Ms Fice renewed her guilty pleas, and also pled guilty to the count of breach of recognizance. Two experts in forensic psychiatry, one for the Crown and one for the defence, were called to testify as to Ms Fice's mental condition. In particular, they were asked to give opinions on Ms Fice's mental state at the time of the aggravated assault and on the likelihood that she would re-offend.

[4] By this time approximately 22 months had passed since Ms Fice's arrest, of which she had spent a total of 16 in custody: 13 months until her release on bail under the supervision of the Elizabeth Fry Society, and three additional months since her re-arrest. Counsel for the Crown proposed that an appropriate sentence on the assault charge would be a further three to five years in the penitentiary, arguing that the assault was a brutal attack that warranted denunciation. Because in the Crown's submission the matter clearly merited a penitentiary disposition, counsel argued that it was not open to the sentencing judge to impose a conditional sentence, even if, by virtue of the pre-sentence custody, the resulting sentence would be less than two years. Counsel argued alternatively that a conditional sentence was inappropriate in the circumstances.

[5] Defence counsel, on the other hand, took the position that pre-sentence custody could be taken into account in determining whether a conditional sentence was available. Although he conceded that a penitentiary sentence would have been appropriate if imposed at the time of Ms Fice's arrest, counsel submitted that the sentencing judge must consider the pre-sentence time served, and that it was open to the judge to conclude that an appropriate sentence as of the date of sentencing would be a sentence of less than two years. If the judge so concluded, it was then open to the judge to consider a conditional sentence. Counsel submitted that the assault was an unplanned, spontaneous, out-of-character act prompted by pent- up feelings of anger toward Ms Taylor arising from historical wrongs. He argued that the time spent in pre- sentence custody was ample for the purposes of general deterrence. He sought a sentence on the assault count of time served, or alternatively, a conditional sentence. He also submitted that Ms Fice's time under the supervision of the Elizabeth Fry Society was akin to house arrest, and that she should receive one-for-one [page755] credit for those six months in addition to credit for the pre-sentence custody.

[6] In his reasons for sentence, the sentencing judge did not address the Crown's argument that it was not open to him as a matter of law to impose a conditional sentence. Considering Ms Fice's pre-sentence custody to be the equivalent of almost three years, he determined that a sentence of one year on the aggravated assault was appropriate. He also concluded that Ms Fice should serve two further months on the breach of recognizance count, and six months concurrently on each of the other counts. The sentencing judge then went on to consider whether this sentence might be conditionally served. After noting the circumstances of the case, including Ms Fice's remorse, her plea of guilty and the psychiatric evidence indicating that she was not a danger to the public generally, the sentencing judge determined that the test for a conditional sentence had been met. He imposed a sentence of 14 months to be served in the community on certain conditions, including limitations on the circumstances under which Ms Fice would be permitted to leave her residence and a prohibition on contact with Ms Taylor.

Analysis

[7] Section 742.1 of the Criminal Code, R.S.C. 1985, c. C-46, sets out the criteria that must be met before a conditional sentence may be imposed:

742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

(a) imposes a sentence of imprisonment of less than two years, and

(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,

the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditional sentence order made under section 742.3.

(Emphasis added)

[8] Section 719(3) is the relevant provision of the Criminal Code dealing with pre-sentence custody. It reads as follows:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence.

(Emphasis added) [page756]

[9] The question that arises is whether a sentencing judge may take pre-sentence custody into account under s. 719(3) in determining whether the sentence to be imposed is one "of imprisonment of less than two years" within the meaning of s. 742.1(a). Crown counsel fairly acknowledged at the hearing that, on a plain reading of the two provisions, this approach appears to be open to the sentencing court. The Crown takes the position, however, that such an interpretation runs contrary to the principles set out in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 140 C.C.C. (3d) 449, and violates the intent of the legislation.

[10] In Proulx, the Supreme Court of Canada outlined the principles governing the application of the conditional sentencing regime. The court rejected the interpretation that s. 742.1 prescribes a rigid two-step process, in which a sentencing judge must first impose a term of imprisonment of fixed duration before considering the possibility of a conditional sentence. Such an approach, the court concluded, gave rise to an inherent contradiction because the duration of a sentence cannot be determined separately from the determination of its venue. In arriving at a fixed period of imprisonment as an appropriate sentence at the first step, the sentencing judge would have had to consider the purpose and principles of sentencing set out in ss. 718 to 718.2. It might then be difficult for the judge to reconcile a conditional sentence of an equivalent duration with those same principles under s. 742.1(b), since a conditional sentence is generally more lenient than a jail term of the same length. Hence this approach could lead to unfit sentences.

[11] To avoid these difficulties, the court adopted a different approach. The sentencing judge should first determine which range of sentence would be appropriate: a period of probationary measures, imprisonment for less than two years, or imprisonment for two years or more, i.e., a penitentiary term. If the judge concludes that the second category is the most appropriate, he or she may then consider whether the sentence may be served conditionally. Lamer C.J.C. described this process in the following terms, at para. 58:

In my view, the requirement that the court must impose a sentence of imprisonment of less than two years can be fulfilled by a preliminary determination of the appropriate range of available sentences. Thus, the approach I suggest still requires the judge to proceed in two stages. However, the judge need not impose a term of imprisonment of a fixed duration at the first stage of the analysis. Rather, at this stage, the judge simply has to exclude two possibilities: (a) probationary measures; and (b) a penitentiary term. If either of these sentences is appropriate, then a conditional sentence should not be imposed. [page757]

[12] Counsel for the Crown argues that, in following this analysis, it is not open to a sentencing judge to take pre- sentence custody into account at the first stage of the process. To permit a sentencing judge to take pre-sentence custody into account in determining the appropriate range could lead to a situation that in the Crown's submission is absurd: an offender who, absent pre-sentence custody, would normally receive a sentence in the penitentiary range, and therefore would not be able to serve any portion of it conditionally, could receive a conditional sentence simply due to the passage of time spent in pre-sentence custody. Counsel for the Crown argues that such a result would be inconsistent with the intention of Parliament that the conditional sentencing regime apply only to a certain category of offenders who commit less serious offences that call for a term of imprisonment of less than two years. He submits further that the absence of any reference to s. 719(3) in s. 742.1 indicates Parliament's intention to exclude pre-sentence custody from the consideration of the availability of a conditional sentence.

[13] Effectively, the Crown's position is that the proper approach is for a sentencing judge first to determine the appropriate range of sentence for the offence, without regard to pre-sentence custody. If the appropriate range is a penitentiary term, then a conditional sentence is not available, and the pre-sentence custody may only serve to reduce the duration of the custodial sentence. In this case, the sentencing judge was clearly of the view that a penitentiary sentence was warranted on the aggravated assault count. Hence, the Crown argues that he should have concluded that a conditional sentence was not available.

[14] The Crown finds support for this position in R. v. Predenchuk (2000), 199 Sask. R. 264, 2000 SKCA 122, where the Saskatchewan Court of Appeal held as follows, at para. 6:

. . . [T]he trial judge must first of all determine whether a penitentiary term is appropriate. In our view, a judge cannot calculate the amount of time that the accused has spent on remand and deduct it to determine whether the conduct in question would normally merit the imposition of imprisonment within a penitentiary.

[15] See also R. v. Runns (2002), 165 C.C.C. (3d) 217, 2002 SKCA 48, at paras. 20-21, where the same court followed its decision in Predenchuk.

[16] The British Columbia Court of Appeal, without expressly addressing the issue, appeared to hold the contrary view in R. v. Harris (2002), 167 C.C.C. (3d) 246, 2002 BCCA 152. In its reasons for upholding the conditional sentence imposed on Mr. Harris, the court commented as follows [at para. 22]: [page758]

The first condition is that a sentence of incarceration of not more than two years less a day be an appropriate sentence. At the time of sentencing, Mr. Harris had served eight months in pre-trial custody. A custodial sentence of say, 40 months (less a day), giving 16 months credit for the pre-trial custody, would have resulted in a sentence of two years less a day. Thus, I am unable to say that the first condition could not be satisfied.

[17] Counsel for the respondent, on the other hand, argues that nothing in the Criminal Code or in Proulx prohibits such an approach. He submits that in determining the appropriate range of sentence, a sentencing judge may take pre-sentence custody into account, either as a general principle of sentencing, or pursuant to s. 719(3). He maintains that there is no evidence of a clear intention by Parliament to exclude pre-trial custody from the sentencing judge's consideration of the appropriate range of sentence.

[18] With respect for the opposite view, I find that the respondent's position is to be preferred. It is more consonant with the language of the Criminal Code. The first criterion that must be met under s. 742.1(a) is that "the court imposes a sentence of imprisonment of less than two years". In "determining the sentence to be imposed", s. 719(3) allows the court to count pre-sentence custody. This court considered s. 719(3) in the context of minimum sentences in R. v. McDonald (1998), 1998 13327 (ON CA), 40 O.R. (3d) 641, 127 C.C.C. (3d) 57 (C.A.). Rosenberg J.A., in writing for the court, held that s. 719(3) was not merely a principle of sentencing; rather, it gives the sentencing judge a substantive power to count pre-sentence custody in fixing the length of a sentence. His analysis on this point was expressly endorsed by the Supreme Court of Canada in R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, 184 D.L.R. (4th) 385. Hence, the fact that s. 742.1 expressly refers to the "principles of sentencing set out in sections 718 to 718.2" without including s. 719(3) does not assist the Crown, as contended. I would conclude, rather, that if Parliament had intended to curtail the court's power to consider pre-sentence custody in the application of s. 742.1, it could have done so in express language.

[19] It is my view that the language of s. 742.1 and s. 719(3) is not ambiguous and that it does allow the sentencing judge to take into account pre-sentence custody in determining the range of sentence under the conditional sentence regime. However, even if one were to conclude that these provisions are ambiguous as to the proper role of pre-sentence custody in the conditional sentencing context, the result should be the same. Where provisions in penal statutes affecting the liberty of a person are ambiguous, the proper approach is to interpret the legislation in a manner favourable to the accused: R. v. McIntosh, 1995 124 (SCC), [1995] 1 S.C.R. 686, 36 C.R. (4th) 171, at para. 29, per Lamer C.J.C. In this case, [page759] that approach leads to the conclusion that there is no impediment to the consideration of pre-sentence custody in the determination of the appropriate range of sentence for the purposes of the conditional sentencing regime.

[20] Further, I do not agree with the Crown's contention that this interpretation is contrary to the purposive approach adopted by the Supreme Court of Canada in Proulx. The issue before us was not before the Supreme Court in Proulx, and it therefore was not an explicit consideration in the court's reasons. Moreover, there is nothing in Proulx that suggests that a sentencing judge may not take pre-sentence custody into account at the first stage of the process in determining whether a penitentiary term is appropriate.

[21] This methodology may of course result in situations in which an offence that would normally merit a penitentiary sentence instead garners a conditional sentence because of the effect of pre-sentence custody. I do not accede to the Crown's view that this result is unacceptable. It is not in my view absurd to allow that the appropriate range of sentence may change depending on the presence of pre-sentence custody. There are many factors to be taken into account in sentencing, of which pre-sentence custody may be one pursuant to s. 719(3), and a variation in any of the factors may result in a different appropriate range of sentence. Where a particular offender has served a substantial amount of time in pre-sentence custody, it might not be appropriate, in the view of the sentencing judge, for that offender to receive a sentence in the penitentiary range. For example, the sentencing judge might conclude, given that pre-sentence custody is often served in harsher circumstances than the punishment ultimately calls for (see R. v. Wust, supra, at para. 28), that a penitentiary term would no longer be proportionate to the offence.

[22] The Crown's concern that this approach could lead to the imposition of conditional sentences for classes of offenders to which the conditional sentencing regime was not intended to apply is unfounded in light of the further requirements set out in s. 742.1(b). Even after concluding that the appropriate range of sentence is a term of imprisonment of less than two years, a sentencing judge would still have to be satisfied that a conditional sentence would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing. This result will be less likely where the offence is one that would merit a penitentiary term, absent the pre-sentence custody. Indeed, in R. v. Persaud (2002), 2002 44931 (ON CA), 26 M.V.R. (4th) 41 (Ont. C.A.), this court, without deciding the issue now before us, noted, at para. 1, that "it will be the rare and exceptional case that a trial judge, who is otherwise of the view that a penitentiary [page760] sentence is warranted, will ultimately impose a conditional sentence after factoring in time spent in pre-trial custody." In my view, however, there is no principled basis upon which to conclude that such an option should never be available. It should therefore be open to a sentencing judge as a matter of principle to consider pre-sentence custody in determining the appropriate range of sentence for the purposes of the conditional sentencing regime.

[23] This brings me to the Crown's alternative submission that if a conditional sentence was legally available, it was not appropriate on the facts of this case. At the hearing of the appeal, counsel for the Crown did not press this issue, more or less conceding that this court may not wish to interfere with the sentence having regard to the lengthy passage of time since its imposition.

[24] Having regard for the deference required in respect of sentences imposed at trial, I would not interfere with the sentencing judge's decision to impose a conditional sentence in this case. Although unusual, given the violent nature of one of the offences, it cannot be said that the imposition of a conditional sentence, in and of itself, resulted in an unfit sentence. This court's review of the length of the sentence poses more difficulty. The matter is complicated by the fact that the sentencing judge appears first to have determined a fixed term for the sentence to be imposed, which was not the approach recommended in Proulx. It is difficult to ascertain from the record whether this irregularity may have impacted on his ultimate decision on the length of the sentence. However, as was anticipated by Crown counsel, I find that the passage of time, when considered in the context of all the circumstances of this case, militates against appellate intervention. I would therefore grant leave to appeal the sentence but dismiss the appeal.

Appeal dismissed.