DATE: 20061031
DOCKET: C45133
COURT OF APPEAL FOR ONTARIO
LASKIN, MOLDAVER and JURIANSZ JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Brian A. Callender for the appellant
Respondent
- and -
ROBERT LABBE
Greg Skerkowski for the respondent
Appellant
Heard: October 19, 2006
On appeal from the sentence of twenty-one months concurrent for two counts of breach of recognizance imposed on February 3, 2006 by Justice Judith C. Beaman of the Ontario Court of Justice.
BY THE COURT:
[1] The appellant applies for leave to appeal and if leave is granted, appeals from concurrent sentences of twenty-one months imposed by Justice J. C. Beaman of the Ontario Court of Justice on two counts of breach of recognizance contrary to s. 811(a) of the Criminal Code. The appellant was sentenced at the same time to three months consecutive on a charge of assaulting a peace officer in the execution of her duty. He takes no issue with that sentence; nor does he challenge the three-year period of probation following the completion of his custodial sentences.
[2] For reasons that follow, we would reduce the sentences for the two counts of breach of recognizance to twelve months each concurrent. In doing so, we note that the trial judge initially imposed sentences of eighteen months concurrent on those counts. In the end, however, at the request of the appellant, she added on another three months so that he could serve his sentence in the penitentiary.
[3] The appellant is a thirty-three year-old career criminal. He has been committing crimes on a regular and persistent basis since age fifteen. His criminal record is appalling. It contains numerous convictions for crimes of violence, dishonesty and offences against the administration of justice. Of particular note, the appellant has been sentenced to the penitentiary on three separate occasions for serious crimes of violence and he has six prior convictions for breaches of court orders.
[4] On November 18, 2005, upon his release from federal custody, the appellant entered into a recognizance under s. 810.2 of the Criminal Code. He was required to do so because the authorities had reasonable grounds to fear that once in the community, he would commit a “serious personal injury offence”.
[5] Under the terms of his recognizance, among other things, the appellant was required to keep the peace and be of good behaviour and carry his recognizance with him at all times and produce it to a police officer upon request. On June 13, 2006, he breached both of those conditions by failing to carry a copy of his recognizance and then spitting into the face of the policewoman who arrested him. Charges were laid and the appellant eventually pleaded guilty to two counts of breach of recognizance and one count of assaulting a police officer in the execution of her duty. The Crown proceeded by way of indictment on all counts. Accordingly, on the breach of recognizance counts, the appellant faced a maximum penalty under s. 811(a) of the Code of two years imprisonment on each.
[6] The trial judge provided detailed and comprehensive reasons for sentence. In determining that concurrent sentences of eighteen months (later altered to twenty-one months at the request of the appellant) were required on the breach of recognizance counts, she quite properly recognized that general and specific deterrence and the need to protect the public from high-risk offenders such as the appellant were paramount. She also recognized that proportionality was important and that the sentences imposed should reflect the gravity and seriousness of the crimes. Lastly, she noted that “the more serious the reasons for the Recognizance, the more serious the breach should be considered”. By that, we take her to mean that in assessing the seriousness of the breach, the criminal history of the offender must be taken into account. (See R. v. Jacobson [2006] O.J. No. 1558 Ont. C.A.).
[7] We take no issue with those principles. In our view, they reflect the proper principles of sentencing in this case. In particular, we agree that general and specific deterrence and the need to protect the public were paramount here. The breach of recognizance offences were serious. One involved elements of violence and both involved disdain for authority, characteristics that featured prominently in the appellant’s criminal record. For that reason alone, they called for stiff penalties.
[8] That said, we have concerns that in arriving at the length of sentence for these two counts, the trial judge applied an incorrect principle. The principle in question is identified and ultimately adopted by the trial judge at pp. 49 and 50 of her reasons as follows:
The Crown has argued that Mr. Labbe is someone who has already been found to be at risk of committing a serious, violent offence and personal injury to the community. Simply by virtue of the fact that he is this person and one who has been placed on a section 810.2, this is, by itself, a statement as to where this offender falls on the spectrum of least to worst offender. He has argued that just by virtue of this fact, it places him much closer to the end of the worst offender. [Emphasis added.]
I accept Mr. Drummond’s [Crown counsel] characterization of Mr. Labbe as being on the worst end of the continuum. [Emphasis added.]
[9] With respect, we do not agree that persons who have been required to enter into a recognizance under s. 810.2 of the Criminal Code should automatically be treated as “the worst offenders” for sentencing purposes. On that approach, regardless of the gravity of the breach or the rehabilitative steps taken by the offender, s. 810.2 offenders would inevitably receive sentences at or near the two-year maximum limit. That approach cannot be right. It effectively emasculates the principles of proportionality and rehabilitation that trial judges must take into account in arriving at a fit and just sentence. (In this case, we recognize that the principle of rehabilitation plays no meaningful role.)
[10] In the present case, we believe that the trial judge applied the impugned principle in arriving at the eighteen-month concurrent sentence for the breach of recognizance counts (later raised to twenty-one months at the request of the appellant). That amounts to an error in principle and entitles us to review those sentences and impose sentences that we deem to be fit.
[11] In all the circumstances, without minimizing the seriousness of the breach offences, we think they should have attracted sentences of twelve months concurrent. Accordingly, we would grant leave to appeal and vary the sentences on those counts. In all other respects, we would not interfere with the sentence imposed by the trial judge. For greater certainty, the total custodial sentence will now be fifteen months (twelve months concurrent for the breach of recognizance counts and three months consecutive for the assault police count).
Signed: “John Laskin J.A.”
“M.J. Moldaver J.A.”
“R.G. Juriansz J.A.”