Court File and Parties
CITATION: R. v. Thornton, 2007 ONCA 366
DATE: 20070514
DOCKET: C46417
COURT OF APPEAL FOR ONTARIO
MOLDAVER, GILLESE and LaFORME JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
And
WILLIAM THORNTON
Appellant
Delmar Doucette, for the appellant
Laura Hodgson, for the respondent
Heard: March 26, 2007
On appeal from the judgment of Justice David Little of the Superior Court of Justice dated November 6, 2006.
Reasons for Decision
MOLDAVER and LaFORME JJ.A.:
[1] The appellant pled guilty to one count of operating a motor vehicle while “over .80”; two counts of driving while disqualified and one count of public mischief. He is presently fifty-three years old and has a lengthy criminal record. Unfortunately, he suffers from chronic alcoholism.
[2] The trial judge sentenced the appellant to a penitentiary term of two and one-half years. This was in addition to eighteen months pre-trial custody for which credit was given on a 1:1 basis. Hence the global sentence was one of four years. Had the trial judge applied the usual 2:1 ratio, the global sentence would be equivalent to a sentence of five and one-half years imprisonment.
[3] The appellant appeals from his sentence. He submits that the trial judge erred in crediting him only on a 1:1 basis for the time that he spent in pre-trial custody. He further submits that in any event, the global sentence of four years is manifestly excessive.
BACKGROUND
[4] The offences arise from two separate driving incidents. On the first occasion, in December 2004, the appellant gave a false name when stopped by the police. He later revealed his identity and it was determined that he was disqualified from driving as a result of a previous impaired driving conviction.
[5] Four months later, the appellant was again driving while disqualified and was involved in a minor motor vehicle collision. The attending officers noted the appellant to have slurred speech, bloodshot eyes and to be unsteady on his feet. When the appellant’s vehicle was searched, a twelve pack of beer was located behind the seat, with two empty bottles. Subsequent breathalyzer readings yielded measurements of 194 and 191 mg of alcohol in 100 millilitres of blood.
[6] The appellant has a criminal record that spans his entire adult life (see Appendix “A”). It consists of thirty-six prior convictions. Of those, six are for impaired driving, seven for driving while disqualified, three for drive “over .80” and three for failing to provide a breath sample. The most recent drinking and driving convictions were in 2001, at which time the appellant was sentenced to two years, in addition to ten months pre-trial custody, for care and control while impaired, and six months concurrent for the offences of impaired driving and driving while disqualified. The appellant also received a lifetime driving prohibition.
[7] As indicated, the offences occurred in December 2004 and April 2005. The appellant was detained in custody at the Elgin-Middlesex Detention Centre (EMDC) on April 29, following the April charges. On November 22, 2005 he waived a preliminary hearing and was committed to stand trial in the Superior Court of Justice. At this time, when the matter first came before the Superior Court, the Crown’s position - apparently made known to the appellant - was that it would be seeking a global sentence of four years. In other words, the Crown was prepared to treat pre-sentence custody (then approximately eight months) at 2:1, in addition to a further thirty-two months imprisonment.
[8] On September 13, 2006, some ten months later, the appellant pled guilty to the four charges identified above. Sentencing was adjourned to November 6, 2006 to allow for the preparation of a pre-sentence report.
THE SENTENCE HEARING
[9] On the sentence hearing for the present offences, the Crown sought a sentence of twenty-two months imprisonment in addition to pre-trial custody. With respect to pre-trial custody, he submitted that it should be calculated at: eight months at 2:1 (i.e. sixteen months), and ten months at 1:1. The appellant argued for a sentence of time served at a 2:1 ratio for pre-trial custody (i.e. thirty-six months) on the “over .80” charge and a conditional sentence of unstated length on the other charges. In the final result, he was sentenced – in addition to the eighteen months pre-sentence custody – to two years for the “over .80” offence, three months consecutive for one count of driving while disqualified, three months consecutive for the second count of driving while disqualified and three months concurrent for the charge of mischief. In addition, the trial judge placed him on probation for a period of two years.
[10] Appellant’s trial counsel – not counsel on appeal – put forward two main submissions regarding the pre-sentence custody. First, he pointed out that during the period of pre-trial custody, the appellant had made efforts to address his alcohol problem. The efforts consisted of overtures to alcohol treatment programs. In one instance, the appellant was advised that no treatment was available due to the fact that he was in custody. Consequently, in July 2006, he attempted to be released on bail but his request was denied.
[11] Second, counsel argued that the holding facility in which the appellant was detained was “technically a maximum security institution”; it had no library, the appellant had no access to the gymnasium, and “programs are limited”. The programs that were available were not specified.
[12] In sum, trial counsel submitted that the appellant, who, by the time of sentencing, had rekindled a relationship with his daughter, was now ready to turn the page on his former life and should be given the opportunity to do so. Hence, trial counsel asked for a sentence of time served (thirty-six months on a 2:1 basis) for the offence of “over .80” and a conditional sentence of unspecified length in respect of the other charges.
[13] The Crown’s position on sentencing was that at the eight month mark, it had sought a four year sentence less pre-sentence custody at 2:1. The Crown submitted that as the appellant had not taken up that offer, the additional ten months of pre-sentence custody should only be credited at 1:1. Accordingly, the Crown sought a further global sentence of twenty-two months imprisonment (i.e. eight months at 2:1 plus ten months at 1:1 for a total pre-sentence custody credit of twenty-six months).
[14] As noted earlier, the trial judge imposed a sentence of thirty months in addition to pre-sentence custody (i.e. eighteen months at 1:1 plus two years, plus two sentences of three months consecutive on the two driving while disqualified charges and three months concurrent on the charge of public mischief). Thus, taking into account the trial judge’s 1:1 credit for pre-trial custody, the global sentence was four years imprisonment.
[15] The core of what gives rise to this appeal is reflected in the following passage from the trial judge’s reasons:
I believe that the original Crown request some time ago, for four years in custody, to have some merit. There is no evidence before me, nor am I convinced that he has been deprived of any appropriate programs while at the Elgin Middlesex Detention centre, awaiting disposition. Nor do I think it represents any particular “hard time”, as compared to say the Don Jail. He has even been working there during his incarceration to date. He will only be credited with actual time spent.
[16] The appellant submits that the trial judge made four errors:
He gave no reasons for departing from the usual 2:1 pre-trial custody.
He improperly rejected trial counsel’s representations regarding programming in the local jail.
He converted a positive factor, namely, the offender’s employment in the local jail, into a negative factor.
He imposed a sentence that was manifestly excessive.
[17] The Crown argues that while the sentence is “arguably” at the high end, it is neither outside the appropriate range nor is it demonstrably unfit. The Crown further submits that it was within the trial judge’s discretion to credit the appellant on a 1:1 basis for time served in pre-trial custody and that he did not err in doing so.
ISSUES
[18] In essence, this appeal raises two issues:
(1) Did the trial judge err in failing to give the appellant the usual 2:1 credit for time spent in pre-trial custody? and
(2) Was the global sentence (effectively one of four years) manifestly excessive?
ANALYSIS
Issue One: Pre-sentence custody
[19] Sentencing is an exercise of judicial discretion. Section 719(3) of the Criminal Code confers discretion upon the court to credit an offender for time spent in pre-sentence custody. This is traditionally considered on a 2:1 basis because legislated parole eligibility and statutory release do not take pre-sentence custody into account, and local detention centres ordinarily do not provide educational, retraining or rehabilitation programs.
[20] The first issue contains two components. We would define them as follows:
In refusing to give the appellant more than 1:1 credit for time spent in pre-trial custody:
(a) did the sentencing judge incorrectly analyse the issue of the appellant’s inability to access programs of treatment at EMDC? and
(b) did the sentencing judge err in failing to take parole considerations into account?
(a) Loss of treatment programs
[21] We acknowledge the brevity of the trial judge’s reasons for refusing to credit the appellant with more than 1:1 on account of lack of programming at EMDC. That said, we do not agree with the appellant that the brief reasons he did give were themselves erroneous. In our view, it was open to the trial judge, in assessing the broad issue of programming (or lack thereof) for pre-trial custody purposes, to take into account the amenities that existed at EMDC, including the physical surroundings, the programs (albeit limited) that were available to the inmates, and the opportunity for the appellant to use his time productively by working.
[22] On the last point, we disagree with the appellant that the trial judge effectively punished him for working; on the contrary, we are satisfied that he was simply recognizing that at EMDC, prisoners like the appellant were not required to sit idle; they could work if they chose to and thus make valuable use of their time.
[23] Be that as it may, in our view, there was a compelling reason for refusing to credit the appellant beyond 1:1 for a lack of programming at EMDC. The trial judge hinted at it but he did not flesh it out as he otherwise might have.
[24] Contrary to what some may think, the trial judge was not required to automatically give more than 1:1 credit because of a lack of programming at EMDC. Each case must be looked at individually, on its own particular facts and circumstances.
[25] Here, the trial judge recognized the appellant’s renewed “hope of breaking the cycle of crime repetition” but he also recognized that untreated, the appellant was a menace and that he represented a serious threat to society. In other words, to let him loose on the community “on the hope” that he might “break the cycle” was something the trial judge was not prepared to risk. The pertinent passages from his reasons bear repetition:
Defence counsel propounds the one last chance theory, based on the hope of breaking the cycle of crime repetition. Bolstered by the newfound caring of the accused’s daughter, the defence alleges that this will assist him, now that he has reconnected with her and perhaps his granddaughter.
This man requires more than that to succeed in breaking the cycle. He has to change himself. He has to stop looking elsewhere for help. His problem is self-inflicted and in spite of Mr. Braiden’s creative and impressive argument, I am of the view that the courts just cannot let this matter go on.
This man is a threat to the community. He drives without a licence, he drinks and drives and he has shown a repeated disdain for any court order. He must be separated from society.
[26] What the sentencing judge did not say, but could have, was that he had before him a repeat offender who had been given chance after chance, over the better part of thirty-five years, to rehabilitate himself, including numerous court-ordered treatment programs. His failure to take advantage of these opportunities is noted in the pre-sentence report. Under the heading “Addictions”, the report states:
The summary of services offered by Addiction Services of Thames Valley completed by Jane Troller, indicated that the subject initially became involved with their services in 1995 to attend an intake session. He reconnected for an assessment in 1999 where the following concerns were identified: alcohol abuse/dependency, psychoactive drug abuse/dependence, nine (9) convictions of driving while under the influence, physical and emotional health concerns, and problems with anger. Several strengths were also identified that included: attending for assessment, attempting to reduce use, and successfully quitting the use of methamphetamine in the past.
A goal of abstinence was identified and he was provided with community treatment sessions, a referral to the Donwood Institute, and a three (3) week residential addictions program was initiated. In addition, a plan for withdrawal management was organized. The subject reportedly attended one (1) community treatment session before his file was closed due to non-attendance.
In 2003, the subject again contacted the agency where an intake was booked for the Pre-Contemplator’s Education Group (PEG), which is a one (1) time session for clients who do not believe that they have a substance abuse problem but were referred by a third party. The subject attended but did not take advantage of any further community counselling. [Emphasis added.]
And under the heading “Assessment” the report states:
William Thornton is a fifty-two (52) year old repeat offender before the Court for numerous charges relating to driving while impaired. The subject did not take full responsibility for his actions, blaming faulty brakes on his vehicle for partly causing the accident. He acknowledges that he is an alcoholic and does require community counselling to maintain sobriety. However, in the past he has failed to take full advantage of community services. [Emphasis added.]
[27] In the circumstances, having regard to the appellant’s history of chronic alcoholism and his failure to take advantage of programs offered to him, the trial judge was not required to blindly assume that “this time” the appellant was serious and that any loss of programming due to his detention at EMDC was therefore truly a deprivation. On the contrary, he was entitled to say to the appellant, as he essentially did, – prove yourself and until you do, you are dangerous and pose an unacceptable risk to society.
[28] In the end, while we agree that the trial judge did not fully explain why he was not giving enhanced credit for the loss of programming at EMDC, in the circumstances of this case, we are not satisfied that he erred in giving credit on a 1:1 basis.
(b) Parole considerations
[29] Counsel for the appellant correctly points out that the trial judge made no mention of parole considerations in concluding that the appellant should not receive more credit than 1:1 for pre-trial custody. In our view, the trial judge erred in that regard. Indeed, for reasons that follow, we believe that the appellant should have been credited with a slight increase on account of parole considerations.
[30] To be exact, we see no reason why, for the first eight months of pre-trial custody spent prior to his first appearance in the Superior Court, the appellant should not have received some extra credit for parole. In our view, he should have been credited for an extra four months i.e. half again the time that he actually spent. Thus, in calculating the final sentence, the first eight months should have been treated as twelve months.
[31] But, in our view, the matter should end there. Eight months in pre-trial custody was more than ample time for the appellant to consider his position. Indeed, as his counsel told the trial judge, after waiving the preliminary hearing, it was the appellant’s intention to plead guilty.
[32] Accepting that to be so, we see no reason (and none was offered) why it took the appellant an additional ten months to plead guilty. Indeed, given the appellant’s apparent wish to obtain treatment, there was no logic, that we can see, in his postponing the sentence hearing and spending an extra ten months at EMDC. If it was his expectation (as would appear to be the case from our review of the record) that he would rack up more “dead time” on a 2:1 basis so that he could eventually ask the trial judge to give him time served for the charge of “over .80” (thirty-six months) and a conditional sentence for the remaining crimes, his plan was ill-conceived. To give effect to it would be to turn the sentencing process on its head. It would allow accused persons to tie the hands of the trial judge and fashion their own sentences, as it were, rather than leaving it to the trial judge to craft the appropriate sentence in accordance with the principles of sentencing set forth in the Criminal Code. In the end, just as the trial judge was not required to automatically give extra credit for a loss of programming, so too, he did not automatically have to give extra credit for parole considerations.
[33] That the appellant chose to stay at EMDC for ten extra months after waiving his preliminary hearing and appearing in the Superior Court was his prerogative. By the same token, it was within the trial judge’s prerogative to credit him only on a 1:1 basis for that time. Based on the record, we are satisfied that his calculation was appropriate.
Issue Two: Was the global sentence manifestly excessive?
[34] The global four-year sentence was, in our view, entirely fit. The appellant’s history of alcohol addiction and his criminal record for drinking and driving offences, amassed over most of his adult life, are cause for grave concern. Untreated, he remains a serious risk to society and, as the sentencing judge properly observed, it was necessary in the circumstances to separate him from society. Hopefully, the appellant will learn from this experience and take the steps needed to truly overcome his addiction. That is up to him. In the meantime, society deserves to be protected from the grave danger he presents.
CONCLUSION
[35] In the end, we would grant leave to appeal sentence and allow the appeal. We would vary the sentence as follows:
• On the charge of over .80, the sentence is reduced from two years to twenty months to reflect the increased credit for pre-trial custody on the first eight months, i.e. from eight months to twelve months.
• The other sentences remain the same.
[36] Thus, in total, taking into account credit for pre-trial custody, the global sentence is reduced from thirty months to twenty-six months.
[37] Additionally, as both sides submit, the probation order cannot stand. It was an illegal sentence and remains so, despite the reduction in the penitentiary term from thirty months to twenty-six months. Accordingly, the probation order is quashed.
Signed: “M.J. Moldaver J.A.”
“H.S. LaForme J.A.”
“I agree E.E. Gillese J.A.”
RELEASED: “MJM” May 14, 2007
APPENDIX ‘A’
Police Service:
Occurrence Number: 05-38771
LONDON POLICE SERVICE
Police Case XD: 1798
*ROYAL CANADIAN MOUNTED POLICE - IDENTIFICATION SERVICES *RESTRICTED - INFORMATION SUPPORTED BY FINGERPRINTS SUBMITTED BY LAW *ENFORCEMENT AGENCIES - DISTRIBUTION TO AUTHORIZED AGENCIES ONLY. FPS: 409578A THORNTON. WILLIAM ERNEST
*CRIMINAL CONVICTIONS CONDITIONAL AND ABSOLUTE DISCHARGES *AND RELATED INFORMATION
1972-07-06 LONDON ONT 1973-01-12 WOODSTOCK ONT 1978-12-11 WINDSOR ONT
1980-01-15 WOODSTOCK ONT 1981-08-11 WOODSTOCK ONT 1981-10-06 WOODSTOCK ONT
1985-09-27 LONDON ONT
1988-05-02 LONDON ONT
1988-06-01 1989-06-23 LONDON ONT
THEFT UNDER $50 SEC 280 CC
POSS OF STOLEN PROPERTY SEC 312 (A) CC (1) POSS OF RESTRICTED DRUG (2) POSS OF NARCOTIC SEC 3 (1) NC ACT DRIVE WHILE ABILITY IMPAIRED SEC 234 CC COMMON ASSAULT SEC 245(1) CC
(1) FAIL TO PROVIDE BREATH SAMPLE 235(2) CC (2) POSS OF PROHIBITED WEAPON SEC 88(1)CC
PROBATION 2 YRS
$150 I-D 30 DAYS (1) $100 I-D 10 DAYS (2) ABSOLUTE DISCHARGE $300 I-D 21 DAYS $300 I-D 15 DAYS
(1) 14 DAYS (2) 14 DAYS CONC & PROBATION 1 YR
CARE OR CONTROL WITH MORE THAN 1 MO 80 MGS OF ALCOHOL IN BLOOD SEC 236 CC
DRIVING WITH MORE THAN 80 MGS OF ALCOHOL IN BLOOD SEC 237(B) CC (LONDON PF 15086)
MISCHIEF SEC 387(4) CC
3 MOS & PROH DRI 3 YRS
PAROLED $100 I-D 10 DAYS & RESTITUTION .
1990-04-24 LONDON ONT
1990-06-18 1992-05-28 LONDON ONT
1994-05-25 LONDON ONT
1994-12-07 LONDON ONT
1995-07-27 CONSEC ST THOMAS ONT
1996-07-29 CONC LONDON ONT
(LONDON PF 15086) (1) DRIVING WHILE ABILITY (1) 3 MOS & PROH DRI 3 YRS IMPAIRED SEC 253 (A) cc (2) FAIL OR REFUSE TO PROVIDE (2-3) 30 DAYS ON EACH CHG , SAMPLE SEC 254 (5) CONSEC&CONSEC (3) DRIVING WHILE DISQUALIFIED SEC 259(4) CC (4) ASSAULT SEC 266 CC (4) 15 DAYS CONSEC (LONDON PF 15086)
PAROLED (1) ASSAULT SEC 266 CC (1-2) 3 MOS ON EACH CHG (2) DRIVE WHILE DISQUALIFIED CONSEC SEC 259(4) cc (3) DRIVE WHILE DISQUALIFIED (3) 2 MOS CONSEC SEC 259(4) CC (LONDON PF 15086 ) DRIVING WHILE ABILITY 90 DAYS INTERMITTENT & IMPAIRED SEC 253 (A) CC PROBATION & PROH DRI 3 YRS (LONDON PF 015086-93)
(1) DRIVING WHILE DISQUALIFIED SEC 259(4) cc (2) ASSAULT SEC 266 cc (3) MISCHIEF UNDER $1000 SEC 430(4) CC (LONDON PF 15086-93) (1) DRIVING WITH MORE THAN 80 MGS OF ALCOHOL IN BLOOD SEC 253 (B) CC (2) DRIVING WHILE DISQUALIFIED SEC 259(4) cc (3) FAIL TO COMPLY WITH RECOGNIZANCE , SEC 145(3) CC (2 CHGS) (ST THOMAS PS 441570) (1) DRIVING WHILE ABILITY IMPAIRED CBH SEC 255(2) CC (2) FAIL OR REFUSE TO PROVIDE SAMPLE SEC 254(5) CC (3) DRIVING WHILE DISQUALIFIED SEC 259(4) CC
(1) 4 MOS & PROH DRI 3 YRS (2-3) 15 DAYS ON EACH CHG CONSEC & CONSEC
(1-2) 3 MOS ON EACH CHG & PROH DRI 3 YRS
(3) 1 MO ON EACH CHG CONC & CONC
(1-3) 15 MOS ,ON EACH CHG & PROH DRI 3 YRS
I
CONSEC
(4) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC (2 CHGS) (LONDON PF 015086-93) (1) CARE OR CONTROL WHILE IMPAIRED SEC 253 (A) cc (2) PUBLIC MISCHIEF SEC 140(2) CC (LONDON PS 93-015086) (3) DRIVING WHILE ABILITY IMPAIRED SEC 253 (A) CC (4) DRIVING WHILE DISQUALIFIED SEC 259(4) CC (5) FAIL TO APPEAR SEC 145(5) CC (OXFORD COMMUNITY PS 558-98) . (6) ASSAULT SEC 266 CC (7) FAIL TO APPEAR SEC 145(5) CC (OXFORD OPP 99-039)
2001-11-29 LONODN ONT
2003-03-27 2003-06-19
STATUTORY RELEASE VIOLATOR
*END OF CONVICTIONS AND DISCHARGES
(4) 15 DAYS ON EACH CHG & CONSEC
(1) 2 YRS & (10 MOS PRESENTENCE CUSTODY) & PROH DRI FOR LIFE (2) 2 MOS CONC
(3-4) 6 MOS ON EACH CHG CONC & CONC
(5) 1 MO CONC
(6) 2 MOS CONC (7) 1 MO CONC
STATUTORY RELEASE
RECOMMITTED .
Page: 17