COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McNeil, 2016 ONCA 384

DATE: 20160519

DOCKET: C58111

MacPherson, Lauwers and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Douglas Joseph McNeil

Appellant

Joseph McNeil, acting in person (via videoconference)

Amy J. Ohler, duty counsel

Jessica Smith Joy, for the respondent

Heard: May 17, 2016

On appeal from the conviction entered on September 20, 2013 and the sentence imposed on September 20, 2013 by Justice R.G. Selkirk of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant pleaded guilty to robbery, two counts of dangerous driving, two counts of failing to stop for police, mischief, damaging a farmer’s fence, and breach of probation. Justice Selkirk of the Superior Court of Justice sentenced the appellant to 60 months less eight months credit for pre-trial custody on the robbery charge, 24 months consecutive on one of the dangerous driving charges, and varying amounts of time, all concurrent, on the other charges. Thus the global sentence was 76 months.

[2] The appellant appeals his sentence. He contends that the sentencing judge did not take sufficient account of relevant mitigating factors, especially the mental health issues he has faced for most of his life.

[3] We do not accept this submission. The sentencing judge specifically referred to the appellant’s mental health history, including two psychiatric reports in 2012 and 2013 and a discharge summary from the Brockville Mental Health Unit in 2012.

[4] In addition, we observe that the circumstances of the robbery were horrific. After engaging in a long drive in a stolen car, with an on and off again police pursuit, the appellant arrived at the residence of an elderly couple he did not know. When the 78 year old man opened the door, the appellant “sucker-punched him in the face.” He then pushed the victim’s wife aside as he entered the house. When the elderly man got up, the appellant punched him a second time, knocking him down again. The appellant took the man’s wallet and car keys. He then punched the man a third time, again knocking him to the floor. The appellant drove off in the man’s pick-up truck.

[5] At the time of sentencing, the appellant was 26 years old. Yet he had accumulated about 60 criminal convictions over a 13 year period. The sentencing judge said: “It is clear that addiction and anger management are the driving forces behind Mr. McNeil’s criminality. This has been so for many years.”

[6] In light of the appellant’s long and unrelenting criminal history and the circumstances of the offences, especially the home invasion robbery, we do not think that the sentence imposed by the sentencing judge was too harsh. In particular, we agree with the sentencing judge’s comment about one of the aggravating factors in this case:

It is also aggravating that Mr. McNeil met Mr. Bourdon with a punch to the face before Mr. Bourdon had any opportunity to comply with any demand made by Mr. McNeil. In other words, the violence imposed on Mr. Bourdon was for no reason, it was gratuitous and unnecessary. It is aggravating that Mr. Bourdon was 78 at the time and in no position to resist. This is even more true of Mrs. Bourdon.

[7] However, we would vary the sentence in two minor respects.

[8] First, the sentencing judge gave credit of 1.5:1 for some of the appellant’s pre-trial custody and 1:1 for 110 days of pre-trial custody. In light of the subsequent decision in R. v. Summers, 2014 SCC 26, the Crown acknowledges, and we agree, that the proper credit for this second period of pre-trial custody should also have been calculated on a 1.5:1 basis, thereby increasing the credit for this period from 110 days to 165 days.

[9] Second, the appellant asks that we vary the terms of the ancillary order made by the trial judge under s. 743.21 of the Criminal Code prohibiting him from communicating directly or indirectly with Kayla Dutfield, the appellant’s partner and co-accused.

[10] Ms. Dutfield was convicted of offences relating to the same events as those that led to the appellant’s charges. She too has a non-communication order (with the appellant) as part of her sentence. Her sentence will be fully served on November 25, 2016 and her non-communication order will expire.

[11] The appellant’s warrant expiry is several years later. He is currently incarcerated in the Atlantic Institution in Renous, New Brunswick. He requests that he be permitted to communicate with Ms. Dutfield after her non-communication order expires. Ms. Dutfield sent the court a letter expressing her strong desire to communicate with the appellant who she regards as her common law husband. The appellant read a similar letter during the videoconference hearing.

[12] We accede to their joint request. They are 28 and 24 years old and have been partners since 2010. Ms. Dutfield says that she wants to help the appellant turn his life around. She says:

Neither of us can change what we did. The ONLY thing we can do is change the people we once were. I am proof that it’s possible to change and better myself.

[13] We are inclined to give the appellant and Ms. Dutfield the opportunity to help each other achieve this goal.

[14] Finally, we observe that the sentencing judge noted that in the past the appellant had not been amenable to obtaining professional assistance. At the hearing earlier this week, the appellant said that he recognized that he had serious problems and, accordingly, he would like professional assistance, including communication with mental health professionals. We regard this as a potentially positive development and draw it to the attention of the relevant prison authorities.

[15] The appeal is allowed, but only to this limited extent:

(1) The appellant’s sentence is reduced by 55 days on the basis of a new calculation of credit for pre-trial custody; and

(2) The component of the sentence imposing a non-communication order with Kayla Dutfield remains in effect subject to the following exception: after November 25, 2016, if Kayla Dutfield files a written but revocable consent with the appropriate authorities, the appellant may communicate with her.

“J.C. MacPherson J.A.”

“P. Lauwers J.A.”

“C.W. Hourigan J.A.”