COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dufour, 2015 ONCA 426

DATE: 20150612

DOCKET: C59481

Feldman, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Appellant)

and

Chantelle Dufour

Respondent

Katie Doherty, for the appellant

Brandon J. Chase, for the respondent

Heard: April 28, 2015

On appeal from the sentences imposed on September 24, 2014 by Justice Tory Colvin of the Ontario Court of Justice, sitting without a jury.

Pardu J.A.:

[1] The Crown appeals from sentences imposed on the respondent. She broke into a home, stole a loaded handgun, and sold the gun to a known drug dealer in exchange for cocaine and cash. The respondent acknowledges that the sentence imposed was illegal. On the firearm conviction the respondent was sentenced to one year, less 344 days pre-sentence custody, and a further 12 months consecutive conditional sentence on the break and enter conviction.

[2] A conditional sentence cannot be imposed on the break and enter as the maximum sentence on that count is life imprisonment (see s. 742.1(c), 348(1)(d) of the Criminal Code).

[3] Secondly, a conditional sentence is not available unless the sentence imposed is less than two years before credit for pre-sentence custody (s. 742.1 of the Criminal Code and R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742).

[4] Accordingly, no deference is owed to the sentencing judge’s decision and it falls to this court to determine the appropriate sentence.

[5] The Crown asks for a global sentence of three years’ incarceration. The defence submits that time served of 236 days credited at 354 days concurrently on both the possession of a loaded prohibited firearm and the break and enter followed by a one year conditional sentence on the firearm offence followed by three years of probation would be adequate.

[6] The respondent submits that the severity of the sentence should be lessened because of the respondent’s circumstances.

[7] The mitigating factors include the respondent’s drug addiction, her guilty plea, the absence of any related record, and her efforts to pursue programming and education while in custody. The respondent has endured a difficult childhood. A child welfare agency has been involved in her life since she was 12. She now has four children of her own, aged 19, 15, 12 and 11. Her primary source of income over the years was stripping and prostitution, and selling drugs. She was introduced to intravenous drugs by her eldest son in 2013 and her addiction took over her life. She began stealing to fund her addiction. She has physical and mental health issues.

[8] There is no doubt that the offences committed by the respondent are solidly within the true crime end of the spectrum and that exemplary sentences emphasizing denunciation and deterrence are required (R. v. Nur, 2013 ONCA 677, 303 C.C.C. (3d) 474, aff’d, 2015 SCC 15).

[9] The offences were more serious than those committed in R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, for example, where the offender took a picture of himself holding a loaded firearm inside an apartment, for which a sentence of two years less a day was imposed on appeal, but stayed. Here, the gravity of the offences committed by the respondent justifies the three year global sentence requested by the Crown, despite the mitigating factors in the respondent’s favour.

[10] The substantial issue is whether the appellant should be reincarcerated or whether the sentence should be stayed.

[11] This court has stayed sentences where a lengthy appellate process has been necessary to sort out jurisprudential questions (Smickle, R. v. Hamilton (2004), 72 O.R. (3d)). Where a sentenced person has made substantial progress towards rehabilitation, an appellate court may be reluctant to interrupt that process.

[12] In Smickle, this court cited with approval the following passage from R. v. Taylor, 2013 NLCA 42, at para. 33:

[T]here 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.

[13] In Smickle, this court held, at para. 18, that courts should not stay the execution of a sentence where deterrence and denunciation cannot be met without further incarceration:

If those principles [deterrence and denunciation] 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.

[14] On the facts of the case before it, the court increased the respondent’s sentence for possession of a loaded prohibited firearm (contrary to s. 95(1)) by 12 months incarceration, resulting in a total custodial sentence of two years less a day. However, the court stayed the execution of that sentence on the grounds that reincarceration would undermine the fundamental principles of sentencing and was not necessary to achieve the objectives of deterrence and denunciation. The court began by highlighting, at para. 15, the factors that spoke to the respondent being a responsible, contributing member of society:

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.

[15] The court was also influenced by the “lengthy appellate process”: at para. 11. It ultimately concluded, at paras. 19-20, that:

We are satisfied that the principles of deterrence and denunciation can be fully served without reincarcerating the respondent at this time … 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.

Given that the principles of denunciation and deterrence can be adequately served without reincarceration, we agree with counsel for the respondent that reincarceration 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.

[16] In R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1 (Ont. C.A.), this court overturned a 20 month conditional sentence imposed by a trial judge on charges of importing cocaine. The respondents were single black mothers with three children. One of the respondents, Ms. Hamilton, had been abused by the father of her children and received no support from him. Her decision to import narcotics was “a direct result of her financial hardship.” This court overturned the sentences on the basis that the trial judge had considered evidence about systemic racial and gender bias that was not before him, nor was there any indication that these factors played a role in the commission of the offence. Doherty J.A., however, refused to incarcerate the respondents. He reviewed, at paras. 165-166, the important considerations that arise when reincarceration is at issue:

The ultimate question is, however, should these respondents be sent to jail now? They have served close to seventeen months of their conditional sentences. There is no suggestion that they have not complied with the terms of those sentences or that they have committed any further offences. 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.

This was a significant appeal for the administration of justice. The decision of the trial judge raised important issues that required the attention of this court. Appeals take time. Lives go on. Things change. These human realities cannot be ignored when the Court of Appeal is called upon to impose sentences well after the event. The administration of justice would not be served by incarcerating the respondents for a few months at this time. They have served significant, albeit, inadequate sentences. To impose now, what would have been a fit sentence at trial, would work an undue hardship on the respondents. The administration of justice is best served by allowing the respondents to complete their conditional sentences.

[17] Rehabilitation may be a significant consideration where an unsuccessful respondent argues for a stay of the increased sentence. In R. v. F.(G.C.) (2004), 2004 4771 (ON CA), 188 C.C.C. (3d) 68 (Ont. C.A.), this court reviewed the principles that apply to staying the balance of a sentence that has been increased on appeal. At para. 34, the court opined:

Although it clearly is a hardship on the defendant to be incarcerated or reincarcerated, generally this is not a sufficient reason for the court to stay the operation of a custodial sentence which the offence requires and which ought to have been imposed by the trial judge. However, I do not rule out a stay if there are special circumstances, where, for example, incarceration or reincarceration may have a harmful effect on a defendant's rehabilitation: R. v. Symes (1989), 1989 7173 (ON CA), 49 C.C.C. (3d) 81 (Ont. C.A.).

[18] Academics have discussed the issue of reincarceration after a period of release. The Hon. Gilles Renaud, in The Sentencing Code of Canada: Principles and Objectives (Markham: LexisNexis Canada Inc., 2009), writes, at paras. 5.96-5.97, 5.114):

As a broad, general statement of law, the principle of sentencing which directs courts to be chary of returning an offender to a custodial facility after a lengthy period of time within the community, lest the rehabilitative efforts displayed and the progress achieved towards social re-integration be lost, is exercised only at the appellate level.

... It is possible as well that the offender was detained … until sentence and then released either on probation or subject to a conditional sentence order which is susceptible to being reversed on appeal for failing to assign adequate weight to the safety of the community. In the interim, the offender may well have spent a number of years seeking to overcome addiction, for example, or have made great strides in pursuing an education or in establishing a family or success in employment endeavours. In such circumstances, it is often thought by appeal court judges that it is counter-productive to sacrifice the gains that have been achieved in terms of rehabilitation in order to foster the principles of denunciation and general deterrence by means of incarceration.

On close analysis, the decision to grant a measure of leniency is grounded upon a sense of justice or, expressed otherwise, a desire to avoid injustice.

[19] In R. v. Fox, [2002] O.J. No. 2496 (Ont. C.A.), this court held that the conditional sentence imposed by the trial judge was “demonstrably unfit”, yet refused to incarcerate the offender on the ground that it would serve no purpose. The court held, at para. 3:

In our view, the sentence imposed by the trial judge was unfit for such a serious offence. However, we are of the view that in light of the respondent's current employment situation (a good full time position in British Columbia that pays $6000-$8000 per month), no good purpose would be served by converting the conditional sentence to a custodial one at this juncture.

[20] However, the court in Fox did increase the duration of the conditional sentence as well as the amount of restitution ordered by the trial judge.

[21] There may be little purpose in reincarcerating where the time remaining is relatively short.

[22] R. v. Okash, 2015 ONCA 58 was a recent case involving trafficking of a substance held out to be cocaine. The parties conceded on appeal that the trial judge had given the respondent credit for pre-sentence custody at an “illegal” ratio of 2:1. The “correct” sentence would have led to a further 65 days being served in custody. The Crown argued for the reincarceration of the respondent. However, this court opted to stay the execution of the balance of the sentence not yet served, as (1) the error of the sentencing judge in granting excessive credit for pre-sentence custody was apparent as soon as the sentence was passed and the Crown did not draw it to the attention of the sentencing judge; (2) the respondent pleaded guilty and served the sentence imposed; (3) the period of time remaining to be served was relatively short; and (4) the “correct” sentence was not disproportionate to the sentence imposed by the trial judge. The court held that “the principles of deterrence and denunciation that are key in sentencing for an offence of this type would be met without the necessity of reincarceration of the respondent at this stage of the proceedings.”

[23] In R. v. McBean, 2007 ONCA 275, the respondent was convicted of eleven charges, including possession of narcotics for the purpose of trafficking, possession of a firearm for a purpose dangerous to public peace, and escaping lawful custody. The sentencing judge imposed a sentence of 36 months’ incarceration, 26 of which the respondent had served in pre-trial custody (credit was calculated on a 2:1 basis). The remaining ten months of the sentence were ordered be served as a conditional sentence followed by three years of probation. This amounted to an illegal sentence, since conditional sentences are not available where a sentence of two years or more has been imposed. The remaining sentence that the respondent would have been required to serve was 3.5 months imprisonment. This court stayed the execution of this sentence, holding, at paras. 3-5:

… The appellant has honoured the terms of his conditional sentence for the last six and one-half months, without incident. The record further indicates that he has made significant efforts to achieve rehabilitation, to continue his education, to work, and to further his relationships with his family.

In all these circumstances, reincarceration of the appellant at this time, in our opinion, is not in the interests of the appellant’s rehabilitation or the public interest.

… [T]he remaining period of three and one-half months incarceration is stayed.

[24] Courts in New Brunswick have developed a principled approach to reincarcerating an individual after an “unfit” sentence has been served. The approach was laid out in R. v. Veysey, 2006 NBCA 55, 303 N.B.R. (2d) 290, at para. 32:

We find nothing inherently harsh or oppressive in jailing a person who has served a sentence that was demonstrably unfit. The fact that the original sentence has been fully served does not, by itself, warrant special consideration. At the same time, we are left with the Supreme Court’s caution [in Proulx] that to require an accused to serve a fit sentence after having completed an unfit one may lead to an injustice. Thus, one must be prepared to recognize that in certain instances reincarceration could work an injustice. The difficult task is to identify the circumstances in which reincarceration would work such a result. In short: What constitutes special circumstances? Having regard to the jurisprudence discussed above, we have isolated four factors that one could reasonably consider relevant to the issue of whether a stay should be granted. This is not to suggest that the list is exhaustive. Other pertinent factors may exist. However, for purposes of deciding this appeal, we are content to examine the following: (1) the seriousness of the offences for which the offender was convicted; (2) the elapsed time since the offender gained his or her freedom and the date the appellate court hears and decides the sentence appeal; (3) whether any delay is attributable to one of the parties; and (4) the impact of reincarceration on the rehabilitation of the offender.

[25] On the facts of Veysey, the court reincarcerated the offender on the grounds that (i) the time gap between the respondent’s release from jail and the hearing of the sentence appeal was short and (ii) there was no indication he had made any progress towards rehabilitation.

[26] However, where offences committed are serious this court has reincarcerated an offender upon a successful Crown appeal against sentence.

[27] For example, in F.(G.C.), mentioned above, the charges involved a 31 year old assistant superintendent of an apartment building “grooming” 13 year old girls to become sex objects and supplying them with alcohol. The sexual acts he committed over a period of about two months included sexual intercourse, breast fondling and fellatio. The trial judge imposed a 12 month conditional sentence. This court increased the sentence to two years less a day incarceration, but gave the respondent 1:1 credit for the 12 month conditional sentence he had served. The court reincarcerated the appellant on the ground that he did not point to any “cogent reasons” why the imposition of his sentence should be stayed.

[28] In R. v. Alfred (1998), 1998 5634 (ON CA), 122 C.C.C. (3d) 213 (Ont. C.A.), the Crown appealed from a sentence of nine months’ imprisonment and a two year less one day conditional sentence for the respondent’s conviction of nine counts of indecent assault and three counts of sexual assault. The respondent was a physician and the complainants had been his patients. The impact on the complainants was very serious, and the offences involved a breach of trust. The abuse took place over a period of 18 years, and involved 15-30 minute instances of digital penetration of female children and one instance of ten minute masturbation of a male. Most of the victims were under the age of 16. This court held that the trial judge had erred in principle by allowing a portion of the 33 month sentence to be served as a conditional sentence. It held that a 33 month sentence of imprisonment was appropriate. However, the court took into account the “additional hardship” of reincarcerating the respondent, and therefore reduced the total sentence by eight months.

[29] To summarize, this jurisprudence indicates that on a successful Crown appeal against sentence, where the seriousness of the offence does not require that an offender serve the sentence that should have been imposed, the appellate court can consider the length of the sentence to be served and the offender’s post-sentence rehabilitative efforts in determining whether to stay the sentence. However, over-emphasis of post-sentencing rehabilitation has the potential to distort the sentencing process. Staying appropriate sentences may also introduce unwarranted disparities between similarly situated offenders where one is released from custody pending appeal and another is not.

[30] Here there is no substantial evidence of rehabilitative efforts made after the respondent was released from custody. In fact, the respondent breached the conditional sentence almost immediately afterwards and spent 105 days in custody on that breach. The remaining sentence to be served is significant. In light of the seriousness of the offences, denunciation and deterrence require that the respondent serve an appropriate sentence.

[31] I would calculate the sentence to be now served as follows:

3 years

1095 days

Less pre sentence custody: 236 days x 1.5

354 days

Time served on custodial sentence

19 days

Time spent in custody on breach of conditional sentence

105 days

Time spent on conditional sentence to date of hearing of appeal: 11 + 82 days

93 days

Time spent on conditional sentence since appeal hearing on April 28

45 days

Total credit

616 days

Sentence remaining to be served

479 days

[32] Accordingly, the sentence imposed below is set aside, and a three year sentence is imposed on the gun offence, and a one year concurrent sentence is imposed on the break and enter, with credit as calculated above for 616 days, leaving 479 days to be served on the gun offence.

“G. Pardu J.A.”

“I agree. C. W. Hourigan J.A.”

Feldman J.A. (Dissenting):

[33] Though I am in agreement that it was not legally open to the sentencing judge to impose a conditional sentence, I disagree on the outcome of this appeal.

[34] My principal point of departure relates to the issue of re-incarceration. On my interpretation, the passages reproduced above – particularly the excerpts from Smickle and Hamilton – support this court’s historical reluctance to re-incarcerate an offender on a Crown appeal against sentence, where the principles of deterrence and denunciation can be adequately served through a pronouncement of what the appropriate sentence should have been. The most recent example is R. v. Schertzer, 2015 ONCA 259, where this court declined to re-incarcerate police officers whose sentences were substantially increased on appeal.

[35] In the two decisions referred to by my colleague where respondents on Crown appeals were re-incarcerated by this court, the offenders had committed serious sexual crimes against children that cried out for societal denunciation. Further, as noted by my colleague, the court in Alfred explicitly recognized the additional hardship of re-incarcerating the offender, which contributed to the court’s decision to reduce the length of his sentence.

[36] In another recent decision of this court, R. v. Huh, 2015 ONCA 356, the offender had been sentenced by the trial judge to a conditional discharge for the offence of assault causing bodily harm. The assault, which involved the offender beating the victim, was “extraordinarily violent” and left the victim with serious and longstanding injuries including facial fractures, post-concussion syndrome, and brain damage. Where the accused had therefore not served any period of incarceration, this court found that the principles of deterrence and denunciation required that he do so.

[37] I view the respondent’s situation as more analogous to the respondents in Hamilton, whose commission of the offence of importing cocaine – described by Doherty J.A. as “among the most serious crimes known to Canadian law” – was motivated by their impoverished circumstances.

[38] The respondent’s life circumstances and personal history are tragic. The sentencing judge described her upbringing as “disastrous”. She has been a victim of sexual aggression, has been involved in the sex trade, and has struggled with drug abuse. She suffers from bipolar disorder, borderline personality disorder, depression, degenerative disc disease, and chronic insomnia. At the time of sentencing, there was evidence that she had attempted suicide and was cutting herself. In the words of the sentencing judge, there had been “little, if anything, positive in her life so far.”

[39] On the issue of deterrence, while offences involving firearms are always serious, in this case the respondent did not possess the gun as a tool of a criminal trade. Consistent with her desperate circumstances, she stole the gun in order to sell it. She pled guilty, was remorseful, and did not have a recent criminal record. She has already served a substantial amount of time in custody. The breach of her conditional sentence was living at an unauthorized address for 2 to 4 days. While unacceptable and unlawful, the breach did not involve conduct that was criminal in itself. The respondent has been sentenced accordingly for that breach, and on the record before the court, she has abided by the conditions of her sentence since then.

[40] The totality of all the circumstances I have described are among the types of circumstances that have traditionally led this court to stay any additional sentence that may be imposed on a Crown appeal. To re-incarcerate the respondent at this point for a number of months will serve little further deterrent purpose, but may well cause a significant set-back in her prospects for rehabilitation.

[41] On the issue of denunciation, appellate courts have recognized that a pronouncement of the appropriate sentence will be effective in most cases without the need for re-incarceration, except in the types of exceptional cases referred to above involving extreme violence or sexual abuse where the initial sentence was minimal. See, for example, R. v. Dunn, 2011 NBCA 19, 274 C.C.C. (3d) 77, at para. 24: “[Denunciation and deterrence] will be achieved, in the particular circumstances of this case, by this Court’s denunciation of his actions and the deterrent effect of this Court’s decision.”

[42] In sum, I am of the view that the legal error committed by the sentencing judge can be corrected without disrupting the respondent’s remaining prospects for rehabilitation. Given the respondent’s background, the circumstances of the offence, and the fact that she has served a significant portion of her sentence of incarceration, this is not the type of case that requires re-incarceration in order to uphold the objectives of the sentencing regime.

Released: “KF” June 12, 2015

“K. Feldman J.A.”