Court of Appeal for Ontario

Citation: R. v. Roks, 2011 ONCA 618

Date: 2011-09-28

Docket: C48418

Between:

Her Majesty the Queen Respondent

and

Adrian Roks Appellant

Before: Feldman, Rouleau and Watt JJ.A.

Counsel: P. Andras Schreck and Candice Suter, for the appellant John Pearson, for the respondent

Reasons on appeal from conviction released July 20, 2011, and reported at 2011 ONCA 526. Written submissions on sentence.

Sentence imposed on conviction of manslaughter entered by this Court on July 20, 2011.

Watt J.A.:

[1] On July 20, 2011, the court entered a conviction of manslaughter under ss. 686(1)(b)(i) and (3) of the Criminal Code in substitution for a conviction of a second degree murder entered at the end of a judge alone trial on June 11, 2007. I also decided that, rather than referring the issue of sentence to the trial court, I would impose sentence as s. 686(3)(b) entitles us to do.

[2] I have received and considered written submissions by the parties. The quality of the written submissions rendered oral submissions unnecessary.

[3] The reasons that follow explain why I consider that, had the appellant been properly convicted of manslaughter, rather than second degree murder, and sentenced for manslaughter on November 27, 2007, an appropriate sentence would have been imprisonment for a term of 10 years, less credit for time spent in pre-trial and pre-sentence custody.

The Circumstances of the Offence

[4] The circumstances of the offence of which the appellant was convicted are described in the reasons for judgment on the appeal from conviction. For sentencing purposes, a brief recapture of those features that reflect the gravity of the appellant’s offence and the degree of his responsibility is all that is required.

[5] The appellant was a key participant in a scheme to defraud an insurance company of the proceeds of a policy of fire insurance on the building and contents of a hardware store located near Woodbine and Danforth Avenue in Toronto. The plan was to empty the store of its inventory, set fire to it, get compensation for the loss from the insurer and use the funds to pay off the participants in the scheme and to construct a new building of condominium units on the vacated site.

[6] The appellant’s role was to recruit the fire-setters who were essential to the scheme and provide an alibi for the owner of the property for the night of the fire, Christmas Eve, 2001. The appellant did not set the fire that killed one of the arsonists, nor give any instructions about the amount or distribution of the accelerant, gasoline, or the manner in which it was to be ignited. He was not at the scene when the explosion occurred.

[7] The appellant was familiar with the hardware store and its immediate surroundings. It is a reasonable inference that he knew the proximity of houses to the building that was to be destroyed, when the fire was being set, and why Christmas Eve was chosen.

[8] The appellant did not foresee that anyone would likely be killed by setting fire to the unoccupied commercial premises on Christmas Eve. That said, he was a party to an inherently dangerous act, a reasonably foreseeable consequence of which was that someone could be harmed in a way that was neither trivial nor transitory. The arson was planned and motivated by financial gain.

The Circumstances of the Offender

[9] When the scheme was hatched and the fire set, the appellant was 31 years old and had no previous criminal convictions. He left school prior to completing grade 11 and had opened a tanning salon that he operated with his wife. Although he was without prior convictions, the evidence adduced at trial demonstrated his contemporaneous involvement in several fraudulent schemes. The appellant is now 41 years old.

[10] Before trial, the appellant had been detained in custody for seven weeks until he was released on a recognizance that included strict terms. After 13 months, the restrictive terms were loosened somewhat. He remained subject to these less restrictive terms for a further 16 months.

[11] The trial judge revoked the appellant’s judicial interim release when she convicted him of second degree murder and he remained in custody until sentenced to life imprisonment five and one-half months later. He has been a federal penitentiary inmate for about 46 months.

The Positions of the Parties

[12] For the appellant, Mr. Schreck and Ms. Suter submit that an appropriate range of sentence in these circumstances, exclusive of credit for time spent in custody, is 7-8 years. They say that this is not a case of what some would term “aggravated manslaughter”. The record is bereft of any of the indicia associated with “aggravated manslaughter”, such as gratuitous violence or brutality, thus taking the case out of the 8‑12 year sentencing range. With credit for time spent in pre-sentence custody, the appellant says that a fit sentence would be six years to be served concurrently with a sentence of equivalent length previously imposed for conspiracy to commit arson and that runs from November 27, 2007, as a result of s. 687(2) of the Criminal Code.

[13] For the respondent, Mr. Pearson contends that the appropriate range of sentence in this case is a penitentiary sentence of 13-15 years in length less credit for pre-release custody only. He says that the appellant played a major role in a crime that was planned for months and motivated entirely by financial gain. The fire that was planned and set created a palpable risk of harm to others including nearby residents and emergency workers. Mr. Pearson says that the only potential mitigating factor that warrants consideration is that the appellant has no previous convictions, and even that is offset by the appellant’s involvement in other contemporaneous criminal activity.

The Governing Principles

[14] The paramount sentencing objectives at work in this case are denunciation and deterrence. That said, since I am sentencing a first offender, I must not lose sight of the prospect of rehabilitation. The sentence I impose must be proportionate to the gravity of the appellant’s offence, and the degree of his responsibility.

[15] The principle of parity expressed in s. 718.2(b) of the Criminal Code requires us to take into consideration that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[16] Parity is not equivalence, nor is similar, identical. Crucial to the parity principle expressed in s. 718.2(b) are the cumulative requirements of

• similar offences • similar offenders • similar circumstances

Similar offenders should receive similar sentences for similar offences committed in similar circumstances. When the similarities begin to fall away, however, so does the principle. Offenders may be at different ages and stages, have different antecedents and realistic prospects for rehabilitation, and greater or lesser involvement in or responsibility for an offence. Some plead guilty and co-operate with authorities. A discount may follow in their cases. Others plead not guilty and have a trial. They don’t get the discount.

[17] The principle of parity does not require that the sentences imposed on everyone involved in the scheme to burn down the Woodbine building and collect the insurance proceeds be the same. Fire-setters, prime movers and middlemen have different roles. Some are first offenders, others dedicated recidivists. Some plead guilty and provide evidence for the prosecution, while others keep their own counsel. Some suffer life‑threatening and permanently disfiguring injuries, but others don’t. The arsonist and the middleman are not similar offenders with similar roles in this offence.[^1]

The Principles Applied

[18] The appellant, a mature adult, was a principal in a calculated scheme to defraud an insurance company of the proceeds of a fire insurance policy on a commercial building and its contents. The motive for this scheme was financial gain, principally for the owners of the building. The appellant was to be compensated for his role as well.

[19] The scheme involved setting fire to an unoccupied commercial building on Christmas Eve. The building was to be destroyed by fire. The appellant knew that the building was surrounded by other commercial buildings and private homes. The risk to others, both residents and emergency workers, was palpable.

[20] The appellant’s crime, manslaughter, involved the death of one of the participants in the scheme. The appellant’s role was that of a middleman who recruited those who would set the fire. While the nature of his participation, the circumstances of the offence and the governing principles of sentence warrant a substantial penitentiary sentence, the range of sentence proposed by the respondent is unsupported by authority and well beyond the range that I consider to be fit.

[21] I consider that a sentence of 10 years imprisonment imposed on the original date of sentence, November 27, 2007, less credit for time spent in pre-sentence custody, would meet the ends of justice.

[22] The authority to impose sentence where a court of appeal has substituted a conviction under ss. 686(1)(b)(i) and 686(3) resides in s. 686(3). The court may affirm the sentence passed by the trial court or impose a sentence that is warranted in law. Where the original sentence is affirmed, it runs from the date of its imposition by the trial court. Section 686(3)(b), which permits us to impose a sentence that is warranted in law, says nothing about the commencement date of the sentence imposed for the substituted conviction.

[23] As a general rule, at least in the absence of a relevant provision that provides otherwise, a carceral sentence commences when it is imposed under s. 719(1) of the Criminal Code. Section 719(4) provides the term of imprisonment commences or is deemed to be resumed on the day in which the person is taken into custody under the sentence.

[24] When a court of appeal dismisses an appeal under s. 686(1)(b)(i), substitutes a conviction for another offence under s. 686(3), and decides to impose a sentence warranted in law for the substituted conviction, the effect of the general rule of s. 719(1) is that the sentence a court of appeal imposes commences when it is imposed, unless some applicable legislation provides otherwise.

[25] Section 686(3), for that matter any subsection in s. 686, contains no provision that would invoke the exception to the commencement date established by s. 719(1), at least where the original sentence is not being affirmed: R. v. Boyd (1979), 1979 CanLII 3007 (ON CA), 47 C.C.C. (2d) 369 (Ont. C.A.), at p. 372. The non obstante provisions of s. 719(4) mandate no contrary conclusion in these circumstances to the general rule of s. 719(1). Thus, the sentence imposed for the substituted conviction of manslaughter will commence on the date this judgment is released.

[26] As this court did in R. v. Carrière (2002), 2002 CanLII 41803 (ON CA), 164 C.C.C. (3d) 569, I determine first what would have been an appropriate sentence for the appellant had he been sentenced for manslaughter on November 27, 2007, rather than for second degree murder. That sentence would include any credit accorded the appellant for time spent in pre-sentence custody.

[27] In my view, an appropriate sentence for the appellant on a conviction of manslaughter on November 27, 2007, would have been 10 years imprisonment, less 15 months credit for pre-sentence custody.[^2] In other words, a fit sentence then would have been a penitentiary sentence of 8 years, 9 months.

[28] When under a sentence of imprisonment for life on his conviction of second degree murder, the appellant’s time in custody counted towards his parole eligibility date under s. 746(a) of the Criminal Code. Since November 27, 2007, he has served approximately 46 months of that sentence. In my view, he is entitled credit for that period on a 1:1 basis in the sentence imposed that commences with the release of this judgment. That 46 month period should be deducted from the sentence of 8 years, 9 months that should have been imposed on the November 27, 2007.

Conclusion

[29] For these reasons, I would impose a sentence of imprisonment in a federal penitentiary for a term of 4 years 11 months to commence on the date on which this judgment is released. The sentence on the conspiracy to commit arson is governed by s. 687(2) of the Criminal Code and commenced on November 27, 2007. The sentences should be served concurrently with each other.

[30] If the appellant’s DNA profile is not already in the national DNA data bank, an order shall issue requiring him to provide suitable samples for the purpose of forensic DNA analysis.

“David Watt J.A.”

“I agree K. Feldman J.A.”

“I agree Paul Rouleau J.A.”

RELEASED: September 28, 2011 “KF”

[^1]: The sentences imposed on Paskalis, one of the fire-setters, and on McMaster, a person who removed inventory from the building prior to the fire, are described in our reasons on the conviction appeal: R. v. Roks 2011 ONCA 526, at paras. 154-155.

[^2]: The trial judge credited the appellant on a 1:1 basis for time spent in custody between conviction and sentence. On a conviction of second degree murder this period counted for parole eligibility purposes. On the manslaughter conviction, s. 746(a) does not apply. In the result, I have credited all pre-sentence custody at the rate of 2:1.