Her Majesty the Queen v. Bourdon

[Indexed as: R. v. Bourdon]

110 O.R. (3d) 168

2012 ONCA 256

Court of Appeal for Ontario,

MacPherson, R.P. Armstrong and Juriansz JJ.A.

April 23, 2012

Criminal law -- Sentencing -- Long-term offenders -- Breach of long-term supervision order -- Pre-trial custody -- Accused sentenced to three years' imprisonment on two breaches of long- term supervision order ("LTSO") -- Judge intending to credit accused 1.5 days' credit for pre-sentence incarceration but calculation error resulting in accused receiving 228 days less credit than judge intended to -- Accused having served entire custodial period of sentence seeking reduction of LTSO reduced by 228 days -- Appeal dismissed -- LTSO ran during pre-sentence custody for breaches of order and appropriate that less credit being given for pre-sentence custody while LTSO in effect -- Sentence actually imposed being fit -- Appeal dismissed.

The accused was convicted in 2003 of sexual assault and other offences. He was designated as a long-term offender and was sentenced to five years' incarceration. A seven-year long-term supervision order ("LTSO") was imposed. In 2010, the accused was convicted of two counts of breaching his LTSO. The sentencing judge sentenced him to two years' imprisonment for the first breach and one-year consecutive for the second breach. The sentencing judge intended to give the accused a credit of 1.5 days for each day in pre-sentence custody. Due to a calculation error, the accused was granted a credit of 228 days less than he otherwise would have received. The accused appealed. He was now out of custody and sought to have the 228 days applied to reduce the length of his LTSO.

Held, the appeal should be dismissed.

Despite the sentencing judge's factual mistake in granting the accused less credit for pre-sentence custody than he apparently intended to, the sentence actually imposed was fit. The sentencing judge noted that the accused had never completed any of the treatment programs he had started, that he did not take supervision seriously and that the risk to the public remained high. The time a long-term offender spends in pre- sentence custody cannot be regarded as "dead time", as the LTSO continues to run until conviction. The rationale for a seven-year LTSO was not undermined by the sentencing judge's calculation error.

APPEAL by the accused from the sentence imposed by Turnbull J. of the Superior Court of Justice on March 1, 2011. [page169]

Cases referred to R. v. Ipeelee, [2012] S.C.J. No. 13, 2012 SCC 13, 428 N.R. 1, 2012EXP-1208, J.E. 2012-661, 288 O.A.C. 224, EYB 2012-204040, varg (2009), 99 O.R. (3d) 419, [2009] O.J. No. 5402, 2009 ONCA 892, 264 O.A.C. 392; R. v. Nelson, [2007] O.J. No. 5704, 2007 CarswellOnt 9456 (C.J.)

Statutes referred to Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 135(2) [as am.]

Julie Santarossa, for appellant. Nadia Thomas, for respondent.

The judgment of the court was delivered by

[1] JURIANSZ J.A.: -- In June 2004, the appellant was designated as a long-term offender ("LTO") and sentenced to a long-term supervision order ("LTSO"). The order was, at the time of sentencing, anticipated to continue to April 28, 2013. He appeals his sentence, relying on an error made by the sentencing judge in calculating his credit for pre-sentence custody. As he was released from imprisonment on September 26, 2011 on statutory release, he seeks to reduce the duration of the LTSO.

[2] On August 23, 2010, the appellant was convicted of two counts of breaching his LTSO. On March 1, 2011, he was sentenced to two years' imprisonment for the first breach and to one year in custody for the second breach, to be served consecutively. The sentencing judge stated he would be given credit of 1.5 days for each day in "pre-trial" custody and calculated that credit to be 781 days premised on the 521-day period between the date of his arrest, April 28, 2009, and October 21, 2010. The selection of October 21, 2010 is not explained. The appellant was convicted on August 23, 2010 and sentenced on March 1, 2011. In his reasons, the sentencing judge stated that the appellant was found guilty on October 1, 2010, but the indictment reflects that a new pre-sentence report was ordered on that date. The appellant did not appear in court on October 21, 2010.

[3] The parties agree that the sentencing judge intended to give the appellant 1.5-to-1 credit for his pre-sentence custody. His pre-sentence custody amounts to 673 days, beginning with his arrest on April 28, 2009 and ending on March 1, 2011, when he was sentenced. The proper credit calculated at the rate of 1.5-to-1 would amount to a credit of 1,009 days. Thus, the sentencing judge granted the appellant 228 days (about 7[cents] months) less credit than he might have otherwise received.

[4] Relying on this error, the appellant, who is now out of custody, seeks to have the credit the judge intended to give him applied to reduce the length of the LTSO that he is currently serving. If his sentence is reduced, the appellant's LTSO, which was suspended while he served his sentence, would recommence earlier and expire earlier.

[5] I would grant leave to appeal his sentence, but dismiss the appeal. Notwithstanding the sentencing judge's error, I would not disturb the sentence he imposed. The sentence actually imposed was fit. [page170]

[6] The appellant was convicted on December 1, 2003 of two counts of sexual assault on victims he had rendered unconscious with a stupefying drug, one count of administering a stupefying drug with intent to commit sexual assault and one count of unlawful possession of property. The offences occurred between 1999 and 2003 in North Bay and involved three different victims. He drugged the three victims with drinks referred to as "paralyzers". He had sexual intercourse with the first and second victims after drugging them. The second victim was the wife of a friend. He drugged her while she was at work. The third victim was his downstairs neighbour. She had no clear memory of the events until admitted to hospital. He had drilled holes in her apartment so he could observe her in her bedroom. For these offences, the appellant was sentenced to five years' incarceration less pre-trial custody at a 2-for-1 ratio and made subject to a long-term supervision order for a period of seven years following his release.

[7] The long-term supervision order began to run on November 9, 2005, when the appellant was released to a community care centre, and was initially anticipated to end seven years later, on November 8, 2012. However, as the sentencing judge noted, he immediately embarked on a course of infractions.

[8] On December 1, 2005, a suspension warrant was issued and executed when he was found to be accessing pornography and escort service websites as well as chat rooms. The National Parole Board of Canada issued a reprimand on January 27, 2006 and returned him to the community care centre on January 30, 2006.

[9] Less than two months later, on March 20, 2006, a second suspension warrant was issued and executed when the appellant was alleged to have had contact with another resident's girlfriend. He was returned to the community care centre on April 19, 2006.

[10] On May 8, 2006, the third suspension warrant was issued and executed because the appellant was found to have violated the condition that he have no contact with females without prior authorization from his parole supervisor. He was again released to community care on August 15, 2006.

[11] The fourth suspension warrant was issued and executed on September 26, 2006, when he failed to provide detailed billing for his cellphone charges. As well, he had failed to disclose to his parole supervisor that he had been on a trip to North Bay in the presence of a 17-year-old female and had rented a hotel room for her. He was charged with breaching his long-term supervision order on November 23, 2007. [page171]

[12] He was sentenced for that breach on July 2, 2008. He received a sentence of four years' incarceration less credit for 644 days of pre-trial custody at a ratio of 2-to-1.

[13] He was released on statutory release on October 23, 2008 and reached his warrant expiry on December 20, 2008, when his long-term supervision order recommenced with a condition that he reside at a community care centre.

[14] Shortly after, on February 2, 2009, a fifth suspension warrant was issued and executed when the appellant was found in possession of a computer capable of accessing the Internet and a CD containing pornographic images of young women. On April 28, 2009, he was charged with the two counts of breaching his LTSO in this case.

[15] In his reasons, the sentencing judge noted that the appellant had never completed any of the treatment programs he had started and that the risk he posed to the public remained "high". He did not take supervision seriously and blamed others continuously for his circumstances and did not accept responsibility for his actions.

[16] The appellant's effective sentence on these two counts was ten and one-half months' incarceration, given the 781 days of credit he received. As noted, he was released six and one- half months later on September 26, 2011. His LTSO, which was suspended during his sentence, recommenced at his warrant expiry on January 12, 2012. If his appeal is successful, it would end some seven and one-half months earlier than it is currently set to expire.

[17] I agree with the Crown's submission that it should be kept in mind that the time a long-term offender spends in pre- sentence custody cannot be regarded as "dead time", as the LTSO continues to run until conviction. As Justice Masse put it in R. v. Nelson, [2007] O.J. No. 5704, 2007 Carswell 9456 (C.J.), at paras. 30-31:

[A]lthough the long-term supervision order is interrupted while an offender serves a sentence, it continues to run until such time as sentence is actually pronounced. It would be an anomalous result for an offender to receive both a credit towards his long-term supervision order for pre- sentence custody as well as an enhanced credit towards sentence. That could not have been the intention of Parliament.

[18] The issue has been considered by this court in one previous case, R. v. Ipeelee (2009), 2009 ONCA 892, 99 O.R. (3d) 419, [2009] O.J. No. 5402 (C.A.), at para. 10 (appeal allowed on other grounds [2012] S.C.J. No. 13, 2012 SCC 13), where the court said: [page172]

Did the sentencing judge err by refusing enhanced credit?

The sentencing judge refused to give the appellant enhanced credit for the six months he spent in pre-sentence custody. In the circumstance of this case, I see no error. As the sentencing judge noted, the time under the long-term supervision order continues to run while the offender is in pre-sentence custody for breach of a condition of the order. Moreover, the lack of credit for time served towards early release, a factor usually cited as a reason for enhanced credit, is less relevant here as the appellant is unlikely to be granted early release.

[19] One goal of an LTSO to rehabilitate offenders and reintegrate them into the community by supervising them after they are released from imprisonment. If the offender is in custody awaiting trial on charges of breaching the LTSO, nothing can be accomplished towards reintegrating the offender into the community. Some rehabilitation is possible because long-term offenders, unlike other accused persons, can be transferred to a federal penitentiary with treatment programmes available while awaiting sentence (s. 135(2), Corrections and Conditional Release Act, S.C. 1992, c. 20, as amended). The lack of access to such programs is considered a rationale for enhanced credit for time in pre-trial custody. In this case, it is not clear why the appellant was not transferred to a federal penitentiary.

[20] Here, the appellant has spent a total of 1,337 days (664 days on his first breach and 673 days on the breaches in this case) in custody while his LTSO continued to run. That period amounts to more than one-half of the original seven-year period the LTSO was intended to apply.

[21] I recognize that the awarding of credit for pre-sentence custody is a matter within the discretion of the sentencing judge. Here, despite the sentencing judge's factual mistake in granting the appellant less credit for pre-sentence custody than it seems he intended to, I would not disturb the sentence actually imposed. The sentence actually imposed was fit for the offences considering the circumstances of the appellant, and the rationale for a LTSO for a period of seven years is not undermined by the sentencing judge's calculation error. The considerations I have discussed point towards less credit for pre-trial custody while a LTSO is in effect than in other cases.

[22] I would grant leave to appeal [the] sentence but dismiss the appeal.

Appeal dismissed.