COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pilon, 2014 ONCA 79

DATE: 20140129

DOCKET: C54551

Goudge, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Davy Pilon

Appellant

John Hale, for the appellant

Greg Skerkowski, for the respondent

Heard: October 31, 2013

On appeal from the sentence imposed on March 23, 2011 by Justice Douglas J.A. Rutherford of the Superior Court of Justice.

Goudge J.A.:

Introduction

[1] After a trial by judge and jury, the appellant was convicted on September 21, 2010 of breaking and entering the home of Kim Logan, assaulting him, threatening to cause him bodily harm, and wounding him by stabbing him a number of times with the screw driver he had brought with him to effect his break-in.

[2] The appellant was sentenced to eight years in prison for the offences relating to the break-in of Mr. Logan’s home, and six months consecutive for breaching his conditions of release on an outstanding charge of mischief, by failing to keep the peace and be of good behaviour. These sentences were in addition to the three years eight months he served in custody prior to his sentencing.

[3] The appellant abandoned his appeal from conviction, but appeals his sentence. He raises three arguments:

(a) the trial judge erred in principle by failing to quantify the credit given to the appellant for presentence custody;

(b) the trial judge erred by over-emphasizing the appellant’s criminal record;

(c) the sentence imposed is outside the appropriate range and therefore unfit.

[4] For the reasons that follow, I conclude that these arguments all fail. I would therefore dismiss the appeal.

The Facts

[5] In sentencing the appellant, the trial judge set out the facts of the offences. On the evening of June 17, 2007, the appellant broke into Mr. Logan’s home intending to steal either money or property he could sell. Mr. Logan heard his back door open, and on coming up from the basement, came face to face with the appellant inside the back door. The appellant raised his screw driver and said “get the fuck out of my way or I’ll kill you.” Fearing that the appellant was going to stab him, Mr. Logan lunged at him, grasped the shaft of the screw driver, and held on to it.

[6] A struggle ensued that took the two men back out the door and across the deck. As they fought, they rolled across the garden and then into the backyard swimming pool. Mr. Logan kept trying to deflect the thrust of the screw driver but was relatively unsuccessful. At the same time, he was repeatedly punched in the head. Mr. Logan suffered a dozen or more puncture wounds to his head and his shoulders, together with scrapes, bruises and abrasions to other parts of his body. The trial judge found that it was only by sheer good fortune that he was not more seriously wounded.

[7] The struggle ended when Mr. Logan succeeded in getting the screw driver away from the appellant, and his neighbours arrived to assist, followed by the police, who immediately arrested the appellant. The appellant has been in custody ever since.

The Reasons for Sentence

[8] The trial judge’s reasons are clear and comprehensive. After setting out the facts of the offences, he described the serious injuries sustained by Mr. Logan and the lasting physical and psychological consequences for him of that night.

[9] The trial judge then turned to the appellant’s lengthy criminal record. It consisted of more than 100 convictions, most for property-related offences, but some involving violence or threats of violence. While his longest prior sentence was three years in prison for robbery, he had spent a total of about twenty of his forty-eight years in jail or prison.

[10] The trial judge dealt at length with the appellant’s presentence custody. It was largely spent at the Ottawa-Carleton Detention Centre. The trial judge acknowledged that the crowded conditions he endured were seriously inadequate, and that this dead time did not attract any of the remission mechanisms available after sentencing. The trial judge noted, however, that given the appellant’s record, it was unlikely he would be granted much in the way of early release. The trial judge summarized the appellant’s presentence custody as being significant punitive time served in harsh conditions. He said that while he would not express a precise credit to be given for this, he would take the appellant’s presentence custody into serious account in determining an appropriate sentence.

[11] The trial judge then highlighted the three sentencing objectives he found most important in the circumstances of these offences and this offender: denouncing the appellant’s conduct; deterring him personally from further crime; and separating him from the community for a considerable time to ensure public safety, given the likelihood he would continue to be a menace to society.

[12] With this context, the trial judge returned to the relevant circumstances of this offence and this offender: the serious nature of the crimes, the long lasting harm to Mr. Logan, the lengthy criminal record of the appellant (whom this experienced trial judge described as the most recidivist persistent and unrepentant offender he had ever had to deal with), and the appellant’s three years eight months in dead time presentence custody under adverse conditions. He then concluded by sentencing the appellant to eight years for the offences related to the break-in and a further six months for breaching his bail undertaking.

Analysis

[13] The appellant raises three arguments. First, he says that the trial judge erred in principle by failing to quantify the credit given to the appellant for his presentence custody.

[14] Before turning to this argument, it should be noted that the amendments to the Criminal Code, R.S.C. 1985, c. C-46, introduced by the Truth in Sentencing Act, S.C. 2009 c. 29, now require, among other things, that the sentencing court state the amount of time it credits to the offender for presentence custody and must give reasons for doing so. This Act came into force on February 22, 2010, but applies only to persons charged after that date: see R. v. Clarke, 2013 ONCA 7, 293 C.C.C. (3d) 369. Since the appellant was charged in June 2007, these amendments have no application to his case.

[15] Here the trial judge’s reasons demonstrate that he was fully aware of the time the appellant spent in presentence custody, the harsh conditions he experienced as a consequence and that this was dead time for remission purposes. While he was explicit about not quantifying a time period to credit the appellant for this, the trial judge made very clear that he was taking it into serious account in determining the appropriate sentence. In other words, he did not fail to take the appellant’s presentence custody into consideration, nor did he fail to explain its importance in reaching his conclusion.

[16] In my view, the refusal of this trial judge to express any arithmetic formula for precisely how much credit he would give for the appellant’s presentence custody does not constitute an error in principle (although the 2010 amendments would now appear to require that he proceed differently).

[17] This court has historically rejected the use of a particular mathematical formula for crediting presentence custody: see R. v. Rezaie (1996), 1996 1241 (ON CA), 31 O.R. (3d) 713, 112 C.C.C. (3d) 97 (C.A.). The rationale for this is the desirability of determining an appropriate sentence on the basis of a full consideration of all the relevant circumstances. Using a predetermined mechanical calculation for presentence credit puts at risk this focus on the particular case.

[18] The refusal in this case to provide a quantification of the precise credit for presentence custody is consistent with this approach to sentencing. What matters is that the appellant’s presentence custody, whether quantified or not, be taken into account along with the other relevant considerations in his case in determining a just outcome. This holistic evaluation can be done even if credit for presentence custody is not precisely quantified. That is consistent with the reality that sentencing is an art not a science.

[19] That is the way the trial judge proceeded here. He considered presentence custody as one of the many factors as he put it:

[T]o take into account in a unique balancing exercise in a judge’s difficult task of fashioning a sentence or sentences to meet the sentencing objectives in an individual offender’s circumstances.

[20] It is true that if an appellate court is asked to determine whether a sentence is fit, it is assisted by knowing the precise credit given by the trial judge for presentence custody. Absent that, the appellate court has to determine for itself what would be appropriate. However, I do not think that declining to make life easier for the appellate court constitutes an error in principle.

[21] I would therefore not give effect to the appellant’s first argument.

[22] The appellant’s second argument is that the trial judge erred by over-emphasizing the appellant’s criminal record and effectively imposing preventative detention on this appellant. In addition, he says that the sentence was an excessive increase over the longest sentence he had previously received.

[23] I would reject this argument. The appellant’s criminal record justifiably troubled the trial judge. It was very lengthy and stretched over almost 30 years. He was quite entitled to conclude that rehabilitation efforts had failed again and again and that the appellant’s record made it very likely that on release he would continue his life of crime. This made it entirely appropriate for the trial judge to separate the appellant from society for a considerable period of time in the interest of public safety.

[24] Thus, I see no error in the trial judge considering that the appellant’s criminal record was an important demonstration of the appellant’s inability to reform, which in turn supported the need for a significantly increased prison sentence in order to protect the public.

[25] The appellant’s final argument is that in all the circumstances and whatever credit may be given for presentence custody, the sentence of eight years is outside the appropriate range for the break-in related offences and this offender.

[26] I do not agree.

[27] The facts of these offences are very serious. The appellant broke into Mr. Logan’s home. The sanctity of his home and Mr. Logan’s right to feel secure in it reflects a value of fundamental importance in our society. The appellant confronted Mr. Logan, threatened to kill him and followed that by violently attacking him, using as a weapon the screw driver he had brought to the scene. As a consequence, Mr. Logan suffered significant physical and psychological harm.

[28] The facts of the offender are equally troubling. He is a career criminal who has resisted repeated rehabilitation attempts. The trial judge, with good reason, found that he was very likely to continue to be a menace to society once he is released.

[29] It is true that the appellant spent three years eight months in dead time presentence custody in adverse conditions. However, the trial judge found that, given his record, it was unlikely the appellant would be granted parole. He has been both a parole violator and a statutory release violator. A substantial reason for his incarceration prior to sentence was his repeated breaches of conditions of release. Moreover, he remains a danger to society and unlikely to reform. In my view, given these considerations, the appellant would deserve no more than 1:1 credit for his presentence custody. With this credit, the time in prison received by this offender for the break-in related offences is effectively eleven years eight months.

[30] In my view, while the trial judge did not make a finding that the appellant knew or was reckless as to whether Mr. Logan’s home was occupied, his actions that night have almost all the hallmarks of a home invasion as that phrase is used in s. 348.1 of the Criminal Code. In R. v. Wright(2005), 2006 40975 (ON CA), 83 O.R. (3d) 427, 216 C.C.C. (3d) 54, this court said that the range of sentences found in home invasion cases is as high as 13 years at the upper end.

[31] In this context, it must be remembered that ranges are no more than guidelines. Given that, and given the circumstances of these offences and this offender, I conclude that an effective sentence of eleven years eight months cannot be said to be outside the range of sentences for these kinds of offences.

[32] Thus this argument fails as well.

[33] The appeal must therefore be dismissed.

Released: January 29, 2014 (“S.T.G.”)

“S.T. Goudge J.A.”

“I agree. E.A. Cronk J.A.”

“I agree. S.E. Pepall J.A.”