R. v. Choquette, 2010 ONCA 327

CITATION: R. v. Choquette, 2010 ONCA 327

DATE: 20100505

DOCKET: C46770

COURT OF APPEAL FOR ONTARIO

Weiler, MacPherson and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Choquette

Appellant

Daniel Choquette, appearing in person

Delmar Doucette, as duty counsel

Peter Scrutton, for the respondent

Heard: April 22, 2010

On appeal from the conviction entered on March 26, 2006 and the sentence imposed on October 25, 2006 by Justice Catherine Aitken of the Superior Court of Justice, sitting with a jury.

Weiler J.A.:

[1] Following a trial before judge and jury, Mr. Choquette was convicted of the following offences for which he received the following sentences:

Conspiracy to commit extortion May 23, 2004 2 years (concurrent)

Unlawful confinement May 23, 2004 2 years (concurrent)

Extortion May 23, 2004 4 years (consecutive to sentence being served for another, unrelated crime)

Kidnapping May 23, 2004 2 years (concurrent)

Theft (of a motor vehicle) under $5000 May 23, 2004 1 year (concurrent)

Total: 4 years

[2] Mr. Choquette’s appeal as to conviction is abandoned. With respect to sentence, Mr. Choquette argues that the sentencing judge erred in applying the parity principle. Mr. Choquette asks that his sentence be reduced from 4 years to 2 years.

Facts

[3] The background facts to the offences are as follows.

[4] The accused acted as a debt-enforcer for a pawnshop owner, Mr. Piamonte, in Ottawa. Two individuals, Mr. Robb and Ms. Bertrand, had taken some of Mr. Piamonte’s counterfeit money and used it in exchange for payment in real currency and to acquire drugs. In order to explain what had happened to Mr. Piamonte’s money, they concocted a story that the police had arrested Mr. Robb and seized the money. Mr. Piamonte did not believe this story.

[5] May 23, 2004, Mr. Piamonte went, along with Mr. Schmidt and Mr. Tremblay, to Mr. Robb and Ms. Bertrand’s apartment to find out where his money was. Mr. Robb stuck to his story about the arrest. When the two were separated, Ms. Bertrand admitted that the story was concocted, and returned the balance of the money that she still had. Mr. Choquette arrived later in the afternoon to aid as a debt-enforcer.

[6] They returned to the pawnshop together, ostensibly to move a television. Mr. Piamonte confronted Mr. Robb with the money given to him by Ms. Bertrand. He said he wanted the rest of his money back. A sawed-off shotgun was produced by Mr. Schmidt. Mr. Choquette was acquitted by the jury of uttering death threats or possessing the shotgun, but the sentencing judge found that he was flicking a knife in and out, at the pawnshop at the same time that they were demanding money from Mr. Robb.

[7] They drove back to Mr. Robb’s apartment in Mr. Robb’s car to get the money. Mr. Choquette demanded money for himself for his trouble. He also drove the car for some of the distance; Mr. Schmidt drove part of the way. Mr. Robb did not believe he had any choice but to get in the car and accompany them to his residence.

[8] When they arrived at the residence, Mr. Choquette accompanied Mr. Robb into the home, leaving Mr. Schmidt in the car. The sentencing judge found as a fact that:

… [A]t this point, Mr. Choquette said that Mr. Robb owed money to very dangerous men and that if he did not pay it, even if it took time, a month or two in time, and no matter where Mr. Robb was, they would get him. At this point, Mrs. Robb asked if Mr. Choquette was one of the men to whom Mr. Robb owed money, and Mr. Robb acknowledged that he was. Mrs. Robb went immediately to the telephone to call the police and Mr. Choquette quickly left the residence.

[9] As they drove away from the residence, either Mr. Schmidt or Mr.Choquette, with the other’s knowledge, threw the sawed-off rifle into a ditch. It was subsequently found unloaded by the police.

[10] When contacted by police, Mr. Choquette refused to return to Ottawa and basically told them to catch him if they could.

The issue of parity

[11] The parity principle does not require that the sentences given to persons who commit the same crime be the same; the parity principle requires that the differences be understandable.

[12] Mr. Choquette submits that the sentence he received offends the parity principle when compared to the sentence given to Mr. Piamonte, the moving force behind the events.

[13] Mr. Piamonte pled guilty before a different judge to four groups of offences, including the group relating to this event. The group related to this event were: one count of careless storage of ammunition; one count of unlawful confinement; one count of uttering threats and one count of breach of recognizance of bail. For these offences, Mr. Piamonte received an 8-month conditional sentence concurrent on each count to each other but consecutive to sentences for drug and counterfeit-related offences, which resulted in a global conditional sentence of two years less a day. The terms of the conditional sentence included house arrest and that Mr. Piamonte provide the day to day care for his mother who was stricken with Alzheimer’s. Following the completion of his sentence he was to be on probation for a period of three years.

[14] Three distinguishing features noted by the sentencing judge on the parity issue were that Mr. Piamonte had no prior criminal record and was 50 years old when he committed the crimes; he pled guilty immediately following his preliminary inquiry; and he had a drug problem from which he had rehabilitated himself at the time of sentencing. Mr. Piamonte continued to be in the care of a psychiatrist for depression. He was fortunate in that he had a very good family network to support him in the community. The Crown and the defence agreed that notwithstanding his crime spree, Mr. Piamonte did not pose any danger to the public.

[15] In contrast to Mr. Piamonte, Mr. Choquette was considerably younger, being 38 years old at the time of the offences, and he had a fairly extensive criminal record going back to 1991. The offences include possession of stolen property (1991, 1994), breaking and entering and theft, unlawful possession of explosive (1991), assault (1992, 2001, 2007), trafficking in narcotics (1993), impaired driving (2000), driving while disqualified (2002, 2006), several firearm offences in 2005 and numerous failures to appear and obstructions of peace officers.

[16] Although Mr. Choquette had 48 prior convictions, the sentences he received were in the 30 to 90-day range with the exception of his sentence in August 2005, for “the North Bay charges” relating to the firearm offences. For these offences he received a sentence of two years in addition to fifteen months of pre-sentence custody, which the sentencing judge found, was in effect a sentence of 4.5 years. The sentencing judge observed that while Mr. Piamonte was not considered a danger to society, the same could not be said of Mr. Schmidt or Mr. Choquette.

[17] The sentencing judge noted that the fact Mr. Choquette was addicted to cocaine at the time of the offences was a mitigating factor, “in the sense that he was engaging in criminal activity, in part to feed his drug habit.” However, the sentencing judge also observed that although incarcerated at Joyceville Institution since August 17, 2005, Mr. Choquette only started an addiction program in August 2006, shortly before his sentencing on October 25, 2006. Pre-trial custody was not a factor as at the time Mr. Choquette was serving a sentence for an unrelated crime.

[18] In considering the parity principle, the court must also take into consideration the sentence for Mr. Schmidt who was tried with Mr. Choquette for these offences. Mr. Schmidt received a sentence of 6.5 years but he was convicted of possession of a sawed-off rifle for the purpose of committing an offence. This carried a four year minimum sentence. In addition he was convicted of possession of a firearm while prohibited from doing so. He, too, had a long criminal record.

[19] Duty counsel points out that the jury specifically acquitted Mr. Choquette of any firearm offence. In addition, as indicated, he was not the moving force behind the events; that was Mr. Piamonte. When the victim was taken to his home in the hope of obtaining the money and Mrs. Robb said she was calling the police, Mr. Choquette immediately abandoned the enterprise and fled. Following his conviction, Mr. Choquette expressed remorse for his actions.

[20] The sentencing judge was alive to the parity principle and specifically addressed it in her reasons. As indicated above, the sentencing judge explained the differences between Mr. Piamonte’s situation and Mr. Choquette’s and referenced the former’s guilty plea, lack of prior record, and rehabilitation from drugs. Furthermore, because Mr. Piamonte received an exceptionally lenient sentence due to his particular circumstances, the sentencing judge was not obliged to do the same with Mr. Choquette. The sentencing judge committed no error in principle in sentencing Mr. Choquette and the difference in the sentences he imposed is understandable.

[21] Accordingly, while leave to appeal sentence is granted, I would dismiss the sentence appeal.

“K.M. Weiler J.A.”

“I agree J.C. MacPherson J.A.”

Armstrong J.A. (Dissenting):

[22] I have read the reasons for judgment of my colleague, Weiler J.A. I am unable to agree with her conclusion. I would allow the appeal and reduce the sentence for extortion to three years in the penitentiary.

[23] I conclude that the sentencing judge misapplied the parity principle. Mr. Piamonte, who was found by the sentencing judge to be the leader of the enterprise, received an eight month conditional sentence for his involvement. The appellant was found not guilty of the firearms offences. He abandoned his criminal conduct as soon as the mother of Mr. Robb called the police. The appellant received a penitentiary term of four years. There is, in my view, a complete disconnect between the two sentences.

[24] There is no doubt that there are a number of factors, which distinguish the positions of Mr. Piamonte and the appellant. These factors are reviewed by my colleague. I need not revisit them. I simply observe that none of the distinguishing factors, taken separately or together, lead me to the view that there should be such a disparity in sentences for these two individuals.

RELEASED: May 5, 2010

“JCM” “Robert P. Armstrong J.A.”