Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20200513 DOCKET: C68244

MacPherson, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Jennifer Renaud Appellant

Counsel: Amanda Warth, for the appellant Michael Fawcett, for the respondent

Heard: May 12, 2020 by Teleconference

On appeal from the sentence imposed on February 24, 2020 by Justice Erin J. Lainevool of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant, Jennifer Renaud, pled guilty to, and was convicted of, several criminal offences: unauthorized possession of a weapon; theft of a motor vehicle; being an occupant of a vehicle with a weapon; possession of a dangerous weapon; possession of break-in instruments; personation; and failure to comply with recognizance. She received a custodial sentence of ten months after the sentencing judge’s calculation of credit for pre-sentence custody. The appellant appeals the sentence.

[2] At the sentence hearing, the appellant sought a conditional sentence of 12 to 15 months. The Crown position was that the appellant should receive a custodial sentence of 9 to 12 months less credit for pre-trial custody. The trial judge rejected a conditional sentence and imposed the custodial sentence set out above.

[3] On appeal, the appellant does not contend that the sentencing judge erred by declining to impose a conditional sentence. She does assert that the custodial sentence imposed by the sentencing judge was too harsh. We agree with this submission, essentially for three reasons.

[4] First, and most importantly, the sentence imposed by the sentencing judge was above that sought by the Crown. The very top of the Crown’s range was 12 months. Although the sentencing judge never said what her global sentence was, the reality is that when you add the custodial sentence she imposed and the credit the parties acknowledge should have been given for pre-sentence custody, the global sentence is about 13 ½ months. The Crown acknowledges this point and agrees with the proposition that when a sentencing judge imposes a sentence more harsh than that sought by the Crown, the judge should explain the reasons for so doing. The sentencing judge did not do this. There is no indication in her reasons that she intended to impose a sentence exceeding the maximum sought by the Crown. This outcome may have been related to the error in calculation of pre-sentence custody; submissions made to her about this credit were not precise.

[5] Second, the Crown concedes that the sentencing judge underestimated, by about 15 days, the appropriate credit the appellant should have been given for pre-sentence custody.

[6] Third, although the sentencing judge mentioned some of the mitigating factors favouring the appellant, she did not refer to the appellant’s guilty plea.

[7] Although we would not say that any of these factors, taken in isolation, would necessarily warrant appellate interference with a sentence, in this appeal these factors, taken together, lead us to conclude that the sentence imposed by the sentencing judge was too harsh.

[8] The appeal is allowed. The sentence imposed for personation (90 days consecutive) is varied to 90 days concurrent to the other sentences imposed. This results in an effective sentence today of time served. Accordingly, it is ordered that the appellant be released from custody.

“J.C. MacPherson J.A.”

“G. Pardu J.A.”

“Gary Trotter J.A.”