WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the information relates to a young person who has received an adult sentence;

(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and

(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.O., 2016 ONCA 236

DATE: 20160401

DOCKET: C60559

Doherty, Simmons and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.O.

Appellant

Catriona Verner, for the appellant

Joanne Stuart, for the respondent

Heard: March 15, 2016

On appeal from the convictions entered by Justice Parayeski of the Superior Court of Justice on August 21, 2012, sitting with a jury, and the sentence imposed on December 4, 2014.

Doherty J.A.:

[1] The appellant was charged with four break-ins and various other offences. He elected trial by judge and jury. The jury convicted the appellant of three of the break-ins and several of the related charges.

[2] The trial judge sentenced the appellant to 5 years in the penitentiary, having given the appellant credit on a 1:1 basis for 970 days of presentence incarceration. The trial judge also made a long-term supervision order for a period of 10 years.

[3] The Crown’s case against the appellant was based on the following:

• Mr. Patrick Tessaro, the first victim, arrived home during the break-in. There were two intruders, one younger than the other. The older intruder attacked Mr. Tessaro with a knife and a physical altercation ensued. Both burglars eventually fled the scene. Mr. Tessaro identified the appellant as the person who attacked him with the knife. He picked the appellant out of a photo lineup. The jury convicted the appellant of this break-in and of assault with a weapon.

• The appellant’s 16-year old son, D., testified for the Crown. He testified that he committed three of the break-ins with his father. The jury convicted the appellant on those three break-ins.

• The appellant’s wallet containing his birth certificate and other papers was found in a red vehicle used by the burglars. The vehicle belonged to the appellant’s mother.

• The appellant was in possession of some of the property stolen in one of the break-ins shortly after the break-in. The appellant was acquitted of this break-in, but convicted of possession of property stolen in the break-in.

• Chanelle Baird, the victim in the last break-in, overheard the younger burglar refer to the older burglar as “dad”.

[4] The appellant did not testify.

[5] The appellant appeals conviction and sentence.

Conviction Appeal

[6] Counsel for the appellant alleges several errors in the trial judge’s instruction to the jury. She also contends that one comment made by Crown counsel in her closing was prejudicial and resulted in an unfair trial.

[7] The court required submissions from the respondent on two of the issues raised by the appellant. These reasons will address only those two grounds of appeal.

The Instruction on Eyewitness Identification

[8] The trial judge told the jury that it should be “very cautious” in relying on eyewitness testimony. He explained that honest and convincing witnesses could be mistaken in their identification. The trial judge referred to several factors the jury should consider when examining the eyewitness evidence. He then summarized the eyewitness evidence of Mr. Tessaro, the victim of the first break and enter, who had struggled with the burglar and later identified the appellant as the burglar in a photo lineup. The summary included references to details in Mr. Tessaro’s description of the burglar that did not match the appellant, and aspects of the manner in which the photo line-up was conducted that arguably diminished the probative value of Mr. Tessaro’s identification of the appellant.

[9] The appellant submits that although the trial judge initially properly cautioned the jury that witnesses who were convinced in their identification could well be mistaken, he effectively nullified that instruction when he told the jury that Mr. Tessaro was “clear” and had “not waivered” in his identification of the appellant. Counsel submits that the net effect of the instruction was to make Mr. Tessaro’s level of certainty a positive feature of his identification evidence, thereby nullifying the earlier caution.

[10] I do not agree with counsel’s submissions. The references to the witness’s certainty were made in the course of the trial judge’s summary of his evidence. Those references would not be understood by the jury as a qualification of the trial judge’s earlier instructions that eyewitness evidence should be approached cautiously and could be wrong even when the witness was certain. In fact, as Crown counsel argued, the references to Mr. Tessaro’s certainty may well have reminded the jury that the trial judge’s instructions as to the cautious approach to eyewitness evidence applied to the testimony of Mr. Tessaro.

[11] Counsel also submits that the trial judge wrongly told the jury that witnesses other than Mr. Tessaro had identified the appellant in connection with the other break and enters. She submits that while these witnesses did offer some description of the older burglar, none identified the appellant as the burglar either before trial or in their testimony. Counsel further contends that the manner in which two of these witnesses, both of whom were police officers, framed their testimony, combined with the trial judge’s description of these witnesses as having given eyewitness testimony, may well have led the jury to think that the witnesses had identified the appellant as the burglar.

[12] It is common ground that none of these witnesses identified the appellant as the burglar either prior to or at trial. There is merit to counsel’s submission that the instructions of the trial judge implied that these witnesses had identified the appellant. However, in the end, the trial judge accurately summarized the evidence of these witnesses. I am confident that the jury looked to the content of the witnesses’ evidence and not to the label placed on the witnesses by the trial judge. Their evidence was straightforward and easily understood by the jury. Its very limited value insofar as the identification of the appellant was concerned could not have been lost on the jury.

The Vetrovec Instruction

[13] The trial judge gave a Vetrovec instruction in respect of the evidence of D. In explaining to the jury that it was dangerous to rely on the unconfirmed evidence of D., the trial judge said:

You have heard that he has given differing versions of the events, has at least discussed changing his evidence from the truth, and, of course, has pled guilty to two of the break and enter offences…

[14] Counsel argues that the trial judge failed to identify two additional significant reasons for approaching D.’s evidence with extreme caution:

• D. lied in his preliminary inquiry evidence; and

• D. gave a statement to the police implicating the appellant to secure his own release on bail.

[15] In my view, the trial judge’s reference to the appellant having “given differing versions of the events” was a reference to his different testimony at the preliminary inquiry. The trial judge specifically instructed the jury on the significance to D.’s credibility of his having given different evidence at the preliminary inquiry immediately before the Vetrovec instruction. No doubt the jury understood the trial judge’s reference to “differing versions of events” to be a reference to the preliminary inquiry testimony.

[16] With respect to the argument that the jury should have been specifically told that D.’s desire to be released on bail provided a discrete basis to approach his evidence with caution, I do not read the evidence as establishing that D. gave a statement to the police to secure his release. He was cross-examined on this issue and did not admit any connection between the statement and his release on bail. At most, there was an argument that he gave the statement to secure his release. An adequate Vetrovec instruction did not require that the trial judge identify this as a distinct reason for treating D.’s evidence with caution. The Vetrovec instruction as given made the need to approach D.’s evidence with caution crystal clear and offered three valid reasons for doing so. The instruction was adequate.

[17] The conviction appeal is dismissed.

The Sentence Appeal

[18] After the jury convicted on several counts, the Crown brought a dangerous offender application under Part XXIV of the Criminal Code. Although the trial judge was satisfied that the appellant was “a career criminal”, he was not satisfied that he should declare the appellant a dangerous offender. Instead, acting under s. 753.1, the trial judge declared the appellant a long-term offender. Section 753.1 requires that the sentencing judge impose a jail term of at least two years to be followed by a long-term supervision order that does not exceed 10 years. Section 753.2 provides that a long-term supervision order becomes effective when the offender has finished serving the sentence imposed for the offence. The trial judge imposed the maximum 10-year supervision order. That part of the sentence is not challenged.

[19] The trial judge also imposed a five-year penitentiary term, which combined with the 970 days of presentence custody credited on a 1:1 basis, yielded an effective sentence of seven years and eight months. The trial judge declined to give enhanced credit for any part of the appellant’s presentence custody because the appellant had never applied for bail. The trial judge further indicated that even if he had given the appellant enhanced credit for presentence custody, a sentence of five years in addition to any time credited for presentence custody was “still reasonable”.

[20] The appellant raises a single issue on his sentence appeal. He submits that the trial judge should have given him credit for presentence incarceration on a 1.5:1 basis. The appellant argues that had he been given proper credit for the presentence custody, he would have been entitled to an additional 16 months’ credit, resulting in a sentence of three years and eight months, rather than five years.

[21] The Crown concedes that on the law as it presently stands, the trial judge erred in declining to give the appellant enhanced credit for presentence custody because he had not applied for bail: see R. v. Safarzadeh-Markhali, 2014 ONCA 627, 122 O.R. (3d) 97; leave to appeal granted, [2014] S.C.C.A. No. 489, appeal heard and reserved November 4, 2015. Crown counsel goes on, however, to submit that at the time the appellant was sentenced, there was a strong likelihood that he would not be released on any form of statutory release, but would serve his full sentence in custody until warrant expiry. Counsel submits that the likelihood that the appellant would serve his full sentence justifies crediting the appellant for presentence incarceration on a 1:1 basis.

[22] In R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, the court, in interpreting ss. 719(3) and (3.1) of the Criminal Code, observed that persons held in presentence custody who are subsequently convicted are generally entitled to credit on sentence for presentence custody at the rate of 1.5:1. The enhanced credit is justified primarily because there is no opportunity to gain credits towards early release or parole while in presentence custody. Enhanced credit can also sometimes be justified by virtue of the harshness of the conditions under which the presentence incarceration is served: Summers, at paras. 70-71.

[23] As Summers, at para. 79, makes clear, however, enhanced credit on the basis that presentence custody does not count for the purposes of parole eligibility and early release is not automatic:

The onus is on the offender to demonstrate that he should be awarded enhanced credit as a result of his pre-sentence detention. Generally speaking, the fact that pre-sentence detention has occurred will usually be sufficient to give rise to an inference that the offender has lost eligibility for parole or early release, justifying enhanced credit. Of course, the Crown may respond by challenging such an inference. There will be particularly dangerous offenders who have committed certain serious offences for which early release and parole are simply not available. Similarly, if the accused’s conduct in jail suggests that he is unlikely to be granted early release or parole, the judge may be justified in withholding enhanced credit. Extensive evidence will rarely be necessary. A practical approach is required that does not complicate or prolong the sentencing process. [Emphasis added.]

[24] The appellant, because of some of the offences for which he was convicted, is subject to ss. 129(3) and 130 of the Corrections and Conditional Release Act, S.C. 1992, c. 20. Under s. 130(3)(a), the Parole Board may require a prisoner to serve his or her entire sentence in custody if the Board is satisfied:

that the offender is likely, if released, to commit an offence causing the death of or serious harm to another person … before the expiration of the offender’s sentence …

[25] The appellant is 42 years old. His criminal record extends back almost 30 years. The record, which includes about sixty convictions, begins when the appellant was 13 and continues uninterrupted until the present. The vast majority of his offences are property-related, including many break and enters. Prior to 2003, there were a few offences involving violence, including two prior convictions for assault with a weapon and a conviction for attempted robbery.

[26] The appellant was arrested in June 2003 on several charges and held in custody. In 2006, he was convicted on two robbery counts, one involving the use of a firearm, two break and enter charges, and a charge of possession of a firearm. He received a total sentence of six years.

[27] The appellant served two-thirds of the six-year sentence. He was released on his statutory release date in late March 2010. The appellant enlisted the aid of his then 14-year old son and quickly began committing the break-ins which were the subject of this trial. The first break-in occurred about five weeks after the appellant’s release. The appellant’s offences stopped only when he was caught.

[28] The appellant has been in custody for virtually the entire period between June 2003 and the present, save for a period of less than two months in April and May 2010. During that brief taste of freedom, the appellant went on a crime spree, committing many offences, including the assault on Mr. Tessaro with a knife and the attempt to escape from the police.

[29] Dr. Julian Gojer, who examined the appellant for the defence in response to the Crown’s dangerous offender application, opined:

Clinically, his long history of offending, short stay in the community on parole and reoffending, support a conclusion that he is a high risk to reoffend in a similar manner. His targets are likely to be random individuals who may be present at the time of a break-in. The harm to the individuals is likely to be secondary to a property crime and only if he is thwarted. His violence in the past had the potential to be serious as he has used weapons.

[30] In R. v. Slack, 2015 ONCA 94, 125 O.R. (3d) 60, this court considered the Crown’s submission that presentence credit should be given on a 1:1 basis because the accused’s conduct made it unlikely that he would receive parole or any other form of early release. The court stressed that the focus must be on the language of ss. 129 and 130 of the Corrections and Conditional Release Act which sets out the relatively narrow circumstances in which an offender can be required to serve his or her entire sentence in custody. As Cronk J.A. observed, it is not enough to show that the appellant has been far from a model prisoner while incarcerated. Section 130(3)(a) requires a determination of whether it is likely that the offender, if released before the expiry of the warrant, will commit an offence involving serious harm to another before the expiry of the warrant.

[31] The appellant’s lifelong, continuous and, more recently, increasingly violent criminal conduct, his virtually immediate return to a life of serious, dangerous criminal activity when released in March 2010, and the psychiatric opinion of both the Crown and defence psychiatrists, compel the conclusion that the appellant is likely to commit further serious offences shortly after his release. Consequently, he is unlikely to be granted any form of release before his warrant expiry date. I am satisfied that there is no realistic chance that the appellant would be released before his warrant expiry date. Enhanced credit for presentence custody could not be justified on the basis of a lost opportunity to gain credits toward some form of early release.

[32] I would note that the 10-year supervision order imposed by the trial judge has no impact on the determination of whether the appellant should be given enhanced credit for presentence custody. A long-term supervision order does not start until the offender’s sentence is completed. Even if the offender is released from custody, his sentence continues until warrant expiry. On that date, the long-term supervision order takes effect: Corrections and Conditional Release Act, s. 128(1); R. v. Burton, 2013 ONSC 2626, at para. 14.

[33] Although the trial judge erred in declining to give enhanced credit because the appellant had not applied for bail, enhanced credit was not warranted for the reasons set out above. The trial judge did not err in giving the appellant credit for presentence custody on a 1:1 basis.

[34] The sentence appeal is dismissed.

Released: “DD” “APR 01 2016”

“Doherty J.A.”

“I agree Janet Simmons J.A.”

“I agree K.M. van Rensburg J.A.”