COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Codner, 2013 ONCA 138

DATE: 20130306

DOCKET: C55554

Epstein, Lauwers and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Floyd Codner

Appellant

Mark Halfyard, for the appellant

Mabel Lai, for the respondent

Heard: February 12, 2013

On appeal from the sentence imposed on December 17, 2009 by Justice M.P. Eberhard of the Superior Court of Justice, sitting without a jury.

Epstein J.A.:

[1] The only issue in this sentence appeal is the credit the sentencing judge gave the appellant for his 595 days of pre-sentence custody.

[2] The appellant pled guilty to robbery (x2), possession of a loaded prohibited firearm and a breach of a firearms prohibition. The charges arose out of the appellant’s entering an open garage armed with a loaded prohibited firearm, binding the two people in the garage and robbing them of cash and electronic equipment. In this criminal activity the appellant was accompanied by his two co-accused.

[3] At the sentencing hearing, the Crown and the defence counsel jointly submitted that a period of incarceration of between ten to twelve years was the appropriate range of sentence in the light of the mandatory minimums of seven years for robbery with a firearm and three years for possession of a loaded firearm.

[4] At the time of sentencing, the appellant, 30, had previously been attending George Brown College. He was married, although separated. He had three children with whom he had a close relationship and considerable involvement. He had an unenviable criminal record that included prior convictions for possession of a schedule I substance, possession of an unregistered-restricted weapon (x3), possession for the purpose of trafficking, use of an imitation firearm and obstructing a peace officer. He was under two weapons prohibitions orders and a lifetime mandatory order under s.109 of the Criminal Code.

[5] At the sentencing hearing and before this court, the divide between the parties was the credit to be given for the 595 days the appellant spent in pre-sentence custody. The Crown argued that credit should be given on a ratio of 1.5:1. The defence argued there was nothing in this case that justified deviating from the standard 2:1 ratio.

[6] For the reasons that follow, I would grant leave to appeal sentence and dismiss the appeal.

The Sentencing Reasons

[7] The sentencing judge found that the combination of the seriousness of the home invasion-style robbery, the continued use of a firearm in spite of previous escalating sentences and repeated prohibition orders, the possession of a loaded firearm in the vehicle with all of the potential dangers to the public, and the fact that the appellant committed the robbery when police intervention was foreseeable, justified a total sentence of 10 years.

[8] While not required to do so, the trial judge made the mandatory minimum sentences, consecutive. She reasoned that while the crimes attracting the minimum sentences were part of a continuous occurrence, the armed robbery alone, together with the circumstances of the offender, particularly the nature and extent of his criminal record, warranted a seven-year sentence.

[9] The appellant had served one year, seven months and thirteen days in pre-sentence custody. The trial judge was willing to accord the appellant credit for time served of only two years. This worked out to a credit calculated on a 1.2.1 basis. The trial judge found that it was the appellant’s own conduct; namely, failing to comply with the “prohibition orders”, that disentitled him to the trust upon which pre-trial release is based. The appellant therefore brought about his own pre-sentence detention.

Analysis

[10] An appellate court can only interfere with a sentence where it reflects an error in law or is demonstrably unfit.

[11] The appellant submits that the trial judge committed two legal errors in denying the standard 2:1 credit. First, it was an error to deviate from the standard credit on the basis of bail’s having been refused due to appellant’s previous convictions for failure to comply with weapons prohibition orders. Second, the appellant argues that the basis upon which the trial judge denied credit on the standard 2:1 basis, led to the error of punishing the appellant twice for the same conduct.

[12] As I will explain, I agree with the second challenge to the exercise of the trial judge’s discretion in denying a full 2:1 credit for pre-sentence custody that has been advanced by counsel for the appellant

[13] The appellant was charged before the coming into force of the Truth in Sentencing Act, and so the provisions of that Act do not apply to him. Under the former law, judges normally gave two for one credit for pre-sentence custody: R. v. Pangman (2001), 2001 MBCA 64, 154 C.C.C. (3d) 193 and R. v. Francis, 2006 CanLII 10203 (ON CA), [2006] O.J. No. 1287 (C.A.). The underlying rationale is twofold: first, people denied bail do not get earned remission towards early parole and second, remand detention centers lack rehabilitative programs that are available in institutions where an accused is held on a more permanent basis. It should also be kept in mind that an accused is being held in custody despite the presumption of innocence.

[14] Although trial judges were entitled to depart from the practice of two for one credit, they were obliged to provide reasons that demonstrated that the deviation was on a principled basis: Departure from the normal credit has been found justified in cases such as where; 1) detention in pre-trial custody was the result of the accused’s own conduct; 2) the accused would be unlikely to get early release on parole; and 3) the accused has been held in remand at an institution that has access to rehabilitative programs. R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 45.

[15] Here, the trial judge found that the appellant’s breaches of the prohibition orders “brought upon himself a disentitlement to the trust necessary for pre-trial release.” While as we have noted, one of the principled bases where appellate courts have recognized it is appropriate to deny 2:1 credit is where the detention is the result of the accused’s own conduct, the question is whether this rationale applies in the circumstances of this case.

[16] While the appellant advanced several arguments as to why this rationale should not apply to breach of prohibition orders, our difficulty with this aspect of the trial judge’s reasoning in not allowing the appellant the standard credit for pre-sentence custody is that there was no evidence that it was the breach of prohibition orders as opposed to the appellant’s prior record or some other factor that resulted in a denial of bail in this case. The transcript of the bail hearing was not before the court. Simply put, the reason for the denial of interim release pending trial appears to have been based on surmise.

[17] However, in this case, the Crown points out, correctly in my view, that any argument arising out of the bail hearing must be considered in the light of the fact that the appellant bore the onus to justify his release, as per s. 515(6)(a)(viii) of the Criminal Code:

(6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged (a) with an indictable offence, other than an offence listed in section 469(viii) that is alleged to involve, or whose subject-matter is alleged to be, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or prohibited ammunition or an explosive substance, and that is alleged to have been committed while the accused was under a prohibition order within the meaning of subsection 84(1).

[18] The Crown further submits that the breaches at issue arose from a robbery and a firearm-related offence. They are therefore inextricably connected to his criminal record. As well, the appellant’s conduct demonstrated unchecked disdain for court orders, which in turn rendered him not releasable.

[19] Taking these various arguments into consideration and the deference afforded the trial judge, I am not convinced by the appellant’s first argument that the trial judge erred in principle in denying a 2:1 credit for pre-sentence custody on the basis that the appellant was the author of his own misfortune. I agree with the respondent’s position, that the trial judge was entitled to conclude that the appellant’s own actions had contributed to his being denied bail, given that the onus had shifted to him and that the breaches for which he was charged were part of a pattern that is clear from his criminal record.

[20] I would therefore not give effect to this first argument.

[21] In support of his double punishment argument the appellant relies on the decision of the British Columbia Court of Appeal in R. v. Calder Berg (2007), 2007 BCCA 343, 221 C.C.C. (3d) 449. That case dealt with this issue in the context of whether the repeated breach of a driving prohibition (rather than a weapons prohibition) disentitled the accused to normal credit for pre-sentence custody. The court found that the trial judge erred in taking the appellant’s continued driving while prohibited into account at three different points in his sentencing: first, as an aggravating factor justifying a higher sentence for the offence of criminal negligence causing death; second, as an aggravating factor justifying a higher sentence with respect to the offences of driving while prohibited; and third, as a basis for refusing to give the appellant 2:1 credit. This amounted to a form of unjustified double counting.

[22] I am more swayed by the double counting submission. In Calder Berg, the trial judge denied 2:1 credit for denunciatory purposes, which was the error in principle that rendered the “double counting” unjustifiable. However, the reasons articulated by the British Columbia Court of Appeal are largely applicable here as well. While the trial judge did not deny the credit (at least explicitly) for denunciatory purposes, the concern regarding double counting still applies. Here, the appellant’s sentence was impacted on three different levels by his prior weapons convictions, which included the mandatory weapons prohibitions: it was an aggravating factor which increased both the overall sentence and specific sentence, it impacted the appropriate range of sentence due to the applicable mandatory minimum sentence, and the trial judge used the violation of the weapons prohibition to reduce his pre-sentence custody. All of these amount to the type of double counting with which the British Columbia Court of appeal was concerned in Calder Berg.

[23] Accordingly, I am of the view that the trial judge erred by imposing an unjustified double penalty for the appellant’s breach of prohibition orders.

[24] It follows that the trial judge’s determination of the appropriate pre-trial credit does not attract the usual deference on appeal. This court is therefore charged with the responsibility of determining whether or not we consider the sentence ultimately imposed, nonetheless, to be fit. R. v. Land-Watt, 2007 ONCA 642, 228 O.A.C. 394 and R. v. Situ, 2010 ONCA 683, O.J. No 4427.

[25] In my view, it was.

[26] The sentence imposed, which is just slightly more than 11 years, falls within the range of 10 to 12 years proposed by both parties. It is a sentence that is, all things considered, justified. This was a serious crime, committed by an individual with a criminal record for firearms and violence. Parliament, through its mandatory minimum sentencing regime has sent a strong signal to those contemplating such criminal conduct. Denunciation, deterrence, and protection of the public are being taken seriously attracting a serious response.

[27] In the end, whether the trial judge properly considered the breach of the firearms prohibition as a standalone offence; as an aggravating factor for the robbery; and as a factor weighing against enhanced pre-trial credit, the principle of totality and the fitness of the ultimate sentence relieves against any unfairness that might have resulted from considering each factor in isolation.

Disposition

[28] On the basis of this analysis, I would grant leave to appeal sentence but dismiss the appeal.

RELEASED:

“GE” “Gloria Epstein J.A.”

“MAR -6 2013” “I agree Alexandra Hoy J.A.”

“I agree P. Lauwers J.A.”