COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smickle, 2014 ONCA 49

DATE: 20140122

DOCKET: C55082

Doherty, Goudge, Cronk, Blair and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Leroy Smickle

Respondent

Riun Shandler and Andreea Baiasu, for the appellant

Mark Halfyard, Jeff Hershberg and Breana Vandebeek, for the respondent

On appeal from the sentence imposed by Justice Anne M. Molloy of the Superior Court of Justice in Toronto on February 13, 2012, with reasons reported at 2012 ONSC 602, (2012) 280 C.C.C. (3d) 365.

By the Court:

I

[1] On May 12, 2011, the respondent was convicted of possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge declared the three-year mandatory minimum sentence unconstitutional and of no force or effect. On February 13, 2012, she sentenced the respondent to a five-month conditional sentence. The sentence included the statutory terms and a 10:00 p.m. curfew with exceptions for work or medical emergencies.

[2] In imposing a five-month conditional sentence, the trial judge gave the respondent seven months’ total credit for three months of pre-sentence custody and several months on judicial interim release on restrictive terms. In effect, the trial judge imposed a 12-month sentence with a three-month custodial component.

[3] The Crown appealed the sentence. The appeal was heard with several others that challenged the constitutionality of the three-year minimum sentence and other related provisions in the Criminal Code.

[4] On November 12, 2013, this court held that the three-year mandatory minimum was unconstitutional: R. v. Smickle, 2013 ONCA 678. This court also held that the sentence imposed on the respondent at trial was manifestly unfit and requested written submissions as to the appropriate sentence: Smickle, at para. 35. We have now received and considered those submissions.

[5] The relevant facts are set out in the earlier judgment of this court: Smickle, at paras. 9-30. The Crown and the respondent agree, having regard to our analysis in Smickle, that a sentence of two years less a day would have been the appropriate sentence at trial. The Crown and the respondent also agree that, in addition to the seven months’ credit given to the respondent by the trial judge, he should receive an additional five months’ credit for completing the conditional sentence imposed by the trial judge, resulting in a total credit of 12 months to be applied against the sentence that would otherwise be appropriate. The Crown and the respondent disagree as to the sentence that should now be imposed.

[6] Crown counsel submits that two years less a day is still the appropriate sentence and that, having regard to the 12-month credit, the respondent should be sentenced to a term of 12 months in jail.

[7] Counsel for the respondent submits that any incarceration of the respondent at this time will be very damaging to him and his family and will serve no useful societal purpose. Counsel for the respondent submits that this court should impose the appropriate sentence, two years less a day, but stay the execution of the further custodial sentence. Alternatively, counsel submits that, if this court should decline to stay the execution of any further sentence, it should impose a conditional sentence rather than a custodial sentence.

II

should the court incarcerate the respondent?

[8] Having concluded that the trial judge imposed a manifestly inadequate sentence, it falls to this court to determine the appropriate sentence. In doing so, the court must apply the principles set out in Part XXIII of the Criminal Code and, in particular, s. 718:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions…

[9] As it turns out, the two stages in which this appeal has been considered put the court in a somewhat unusual position. Because of the initial ruling, the parties now agree on the appropriate sentence. The issue is whether the respondent should be re-incarcerated to serve that appropriate sentence.

[10] This court has, on occasion, declined to re-incarcerate a respondent even though the sentence imposed at trial was manifestly inadequate. Sometimes after identifying the sentence that should have been imposed and explaining why the respondent should not be re-incarcerated, this court has simply dismissed the appeal: e.g. see R. v. Hamilton, 2004 5549 (ON CA), [2004] 72 O.R. (3d) 1, at para. 165 (C.A.); and R. v. Banci, [1982] O.J. No. 58 (C.A.). The court also has the power to impose the appropriate sentence but stay the execution of the remaining custodial part of that sentence: see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 132. As explained in R. v. F. (G.C.)(2004), 2004 4771 (ON CA), 71 O.R. (3d) 771, at para. 35, the imposition of the appropriate sentence followed by a stay of the execution of the remainder of the custodial sentence is probably a more appropriate disposition than is an outright dismissal in that it identifies the sentence that should have been imposed.

[11] When, as in this case, the sentencing of an accused has been delayed by a lengthy appellate process, and the accused has served the sentence imposed at trial, the imposition of a “just sanction” demands that those factors be taken into account. The respondent completed the sentence imposed on him long ago. He has spent the last two years in legal limbo uncertain as to whether he would be required to return to jail and, if so, for how long. Those hardships must be taken into account. As observed in Hamilton, at para. 165:

This court has recognized both the need to give offenders credit for conditional sentences being served pending appeal and the added hardship occasioned by imposing sentences of imprisonment on appeal. The hardship is readily apparent in these cases. Had the respondents received the appropriate sentences at trial, they would have been released from custody on parole many months ago, and this sad episode in their lives would have been a bad memory by now.

[12] We adopt the observation of Green C.J.N.L. in R. v. Taylor, 2013 NLCA 42, at para. 133, who, in the course of explaining the function of the appellate court when deciding whether to re-incarcerate an accused who had received in inappropriately low sentence at trial, said:

…there is nothing inconsistent with saying that the sentencing judge, with the record in front of him, should have sentenced the offender to greater incarceration than he did and at the same time saying that, with what the court now knows, the application of the sentencing principles does not now require the offender actually to serve the remainder of the sentence. Unlike the sentencing judge, the court of appeal will be deciding whether the offender should actually serve the rest of his sentence with the benefit of hindsight, a perspective that the sentencing judge did not have. The corrective appellate function of giving guidance as to what the sentencing judge ought to have done can therefore be achieved while at the same time the court can make an appropriate practical disposition, based on current circumstances. [Emphasis added.]

[13] Counsel for the respondent relies primarily on two arguments in urging the court to not re-incarcerate the respondent. First, counsel submits that, through no fault of the respondent, the determination of an appropriate sentence comes almost five years after the commission of the offence, almost three years after the conviction, almost two years after sentence was imposed at trial, and a year and a half after the respondent successfully completed the sentence imposed at trial. Counsel argues that this timeline speaks loudly to the significant added hardship that the respondent would suffer should he be incarcerated at a point so distant from the events that led to his conviction.

[14] Second, counsel stresses that incarceration at this time poses a significant risk to the stability of the respondent’s present life and, therefore, to his ultimate rehabilitation. That ultimate rehabilitation provides, by far, the best long-term hope for “a just, peaceful and safe society”.

[15] The respondent, who apart from this offence has no other convictions, has continued in the years since his conviction to live a positive law-abiding lifestyle. He works two jobs, is developing his own business, has a stable loving relationship with his fiancée, and a close relationship with his two children from earlier relationships. He supports both children financially.

[16] Counsel submits that incarceration of the respondent in the name of the abstract notions of deterrence and denunciation puts at very real risk the positive and tangible steps the respondent has taken to establish himself as a responsible father, spouse, employee, and contributing member of society. Counsel, relying on the respondent’s latest affidavit, submits that the respondent has even come to appreciate the seriousness of the conduct that led to his conviction. He has taken steps to avoid any further such conduct by disassociating himself from his cousin, the owner of the firearm that the respondent had in his possession at the time of the offence.

[17] Counsel urges the court to give priority to the very real benefits to society flowing from the respondent’s ongoing positive lifestyle over the much more nebulous and uncertain societal benefits that may flow from further incarceration in the name of denunciation and deterrence. Finally, counsel submits that the denunciation/deterrence message can be forcefully sent by a clear statement as to the appropriate sentence for this offence, and an equally clear explanation of the extraordinary circumstances that justify the staying of what would otherwise be the appropriate sentence in this case: see Taylor,at paras. 67 and 154.

[18] We agree with Crown counsel’s submission that the offence committed by the respondent was serious and that the principles of deterrence and denunciation must be paramount in fixing an appropriate sentence. If those principles cannot be adequately served without further incarceration, then incarceration is necessary, despite the significant hardship to the respondent and the risk it may pose to his rehabilitation and full reintegration into the community.

[19] We are satisfied that the principles of deterrence and denunciation can be fully served without re-incarcerating the respondent at this time. This court has clearly indicated that convictions under s. 95 of the Criminal Code demand denunciatory sentences: see Smickle, at para. 30; and R. v. Nur, 2013 ONCA 677, at para. 206. Most s. 95 offences will attract a penitentiary term even for first offenders. Offences like that committed by the respondent, while somewhat less serious than the typical s. 95 offence, will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders. Staying the execution of the appropriate sentence in this case should not dilute in any way the pronouncements in Nur and Smickle as to the appropriate sentences for s. 95 offences.

[20] Given that the principles of denunciation and deterrence can be adequately served without re-incarceration, we agree with counsel for the respondent that re-incarceration would not serve the other principles of sentencing and would undermine the fundamental purpose of sentencing set out in s. 718. The community is best protected if the respondent continues along the rehabilitative path that he has followed in the five years that he has been before the court.

III

conclusion

[21] We would allow the appeal and set aside the sentence imposed at trial. A proper sentence would have been two years less a day imprisonment. Taking into account the 12-month credit described above (at para. 5), the respondent should receive a further sentence of 12 months incarceration. We impose a sentence of 12 months and permanently stay the execution of that sentence.

RELEASED: “DD” “JAN 22 2014”

“Doherty J.A.”

“S.T. Goudge J.A.”

“E.A. Cronk J.A.”

“R.A. Blair J.A.”

“M. Tulloch J.A.”