Court File and Parties

Court of Appeal for Ontario Date: 2021-04-14 Docket: C68988

Before: Pardu, Brown and Paciocco JJ.A.

Between: Her Majesty the Queen Respondent

And: Darren Pearce Appellant

Counsel: Darren Pearce, in-person Margaret Bojanowska, duty counsel Jeffrey Wyngaarden, for the respondent

Heard: April 9, 2021 by video conference

On appeal from the sentence imposed on December 30, 2020 by Justice Richard T. Knott of the Ontario Court of Justice.

Reasons for Decision

Overview

[1] In this inmate appeal, Darren Pearce seeks leave to appeal the sentence he received for the offences of aggravated assault and breach of recognizance. The sentencing judge imposed on Mr. Pearce the combined equivalent of a global sentence of five years’ imprisonment. Mr. Pearce had already effectively served most of that time through pre-sentence custody and sentence reductions identified by the sentencing judge.

[2] At the end of the oral hearing, with reasons to follow, we granted leave and allowed the sentence appeal. As we explain below, the sentencing judge erred by failing to address the principle of parity between the sentences imposed on Mr. Pearce and his co-accused, Terrance Goodwin, when there was clear reason to do so, and by imposing, without explanation, a sentence on Mr. Pearce that was substantially and markedly longer than the global sentence of two and one-half years’ imprisonment that Mr. Goodwin had received.

[3] In our view, a global sentence of approximately three and one-half years would have been appropriate for Mr. Pearce. By the time of his appeal, given his pre-sentence custody, the sentence reductions identified by the trial judge, and the 100 days Mr. Pearce served after being sentenced and before his appeal hearing, Mr. Pearce had effectively served a global sentence of approximately three and one-half years. We therefore set aside Mr. Pearce’s sentence of imprisonment and substituted a sentence of “time served”. These are our reasons.

The Material Facts

[4] On June 16, 2019, Darren Pearce and Terrance Goodwin, both drug addicts, together stabbed Tyler Moore, a drug dealer, approximately 17 times. Mr. Pearce and Mr. Goodwin each stabbed Mr. Moore multiple times with the same knife and took Mr. Moore’s backpack, which contained drugs. Mr. Moore suffered permanent injuries from the attack, including multiple stab wounds to his torso and diminished use of his left hand, in which tendons were severed. The drugs stolen by Mr. Pearce and Mr. Goodwin were distributed among others connected to the pre-planned “drug rip-off”.

[5] On October 16, 2019, Mr. Goodwin pleaded guilty to aggravated assault and breach of probation for his role in the attack. Mr. Goodwin has an extensive criminal record, including assault convictions, and was on probation for another aggravated assault and awaiting disposition on separate breach and drug offences at the time of the attack on Mr. Moore. Mr. Goodwin received a sentence equivalent to 30 months as well as three years’ probation.

[6] On September 21, 2020, after seven days of trial, Mr. Pearce pleaded guilty to aggravated assault for having wounded Mr. Moore. He also pleaded guilty to breach of recognizance; at the time of the attack on Mr. Moore, Mr. Pearce was in violation of a bail release condition that he live at a drug treatment facility while awaiting trial on unrelated charges.

[7] At Mr. Pearce’s request, the sentencing judge ordered a Gladue report to assist in sentencing Mr. Pearce. No report was prepared because Aboriginal Legal Services could not confirm that Mr. Pearce was an Indigenous person, and they lacked information on how such status would have affected his life circumstances. However, the sentencing judge was provided with an extensive affidavit in which Mr. Pearce attested to his Indigenous status and life circumstances, including: his father’s imprisonment during Mr. Pearce’s childhood; the tragic drug overdose death of his mother when Mr. Pearce was five years of age; Mr. Pearce’s time in foster care and in the care of his grandparents; his own descent into addiction; and his reconnection with his father later in life, shortly before his father’s death.

[8] Mr. Pearce’s “significant and related record”, containing 58 convictions, including for assault, robbery, and weapons offences, was also put before the sentencing judge. A few years before the incident with Mr. Moore, Mr. Pearce received a sentence of 30 months in custody for a robbery with a weapon.

[9] The sentencing judge was also made aware that Mr. Pearce had been sober for about 17 months prior to his sentencing hearing, had participated in counseling and programs while incarcerated, and had reconnected with his sister and was taking concrete steps to do the same with his two sons.

[10] The details of Mr. Goodwin’s sentence, but not the reasons for that sentence, were before the sentencing judge in the Agreed Statement of Facts filed when Mr. Pearce’s plea was entered. Although Mr. Pearce’s defence counsel did not raise the principle of parity between co-accused offenders during his sentencing submissions, Crown counsel did so in her reply submissions, noting that “there has to be parity to some extent between the [sentences of the] two [Mr. Goodwin and Mr. Pearce]”. She argued that Mr. Pearce had the “greater record” of the two and noted that Mr. Goodwin had pleaded guilty very early in the process, unlike Mr. Pearce. Based on these differences, the Crown urged that the sentence Mr. Pearce was seeking – “time served”, or the equivalent of 27 months – would not achieve parity with Mr. Goodwin’s sentence of 30 months.

[11] In sentencing Mr. Pearce, the sentencing judge concluded that the wounding of Mr. Moore was among the most serious of aggravated assaults. He also noted Mr. Pearce’s extensive criminal record. The sentencing judge accepted the Crown’s submission, based on R. v. Tourville, 2011 ONSC 1677, [2011] O.J. No. 1245, that five years was the lowest appropriate sentence “for an assault of this nature and a person with Mr. Pearce’s record without consideration of Mr. Pearce’s personal and collateral factors”.

[12] The sentencing judge then identified the “personal and collateral factors” that he applied to reduce Mr. Pearce’s fit sentence by one year, to four years’ imprisonment. Specifically, he accepted that Mr. Pearce is Indigenous, and found a connection between Mr. Pearce’s heritage and his difficult background, holding that the Gladue factors “must be considered on sentence” in this case. He also accepted that Mr. Pearce had experienced harsh conditions while in pre-sentence custody because of the COVID-19 pandemic, lockdowns, and assaults that Mr. Pearce endured while awaiting trial. He accepted, as well, that the COVID-19 pandemic has reduced the sentencing tariffs.

[13] The sentencing judge then gave Mr. Pearce the maximum statutory credit for pre-sentence custody, the equivalent of 816 days, and imposed a custodial sentence of 644 days, or “just over 21 months”, plus two years of probation, along with ancillary orders.

[14] When referring in his reasons to the co-accused Mr. Goodwin’s role in the attack, the sentencing judge mentioned that Mr. Goodwin had pleaded guilty “earlier”, but gave no details of the sentence Mr. Goodwin had received, nor did he make explicit mention of the principle of parity.

Issues

[15] In his inmate appeal, Mr. Pearce seeks leave to appeal his sentence. His grounds of appeal may fairly be stated as follows:

1. The sentencing judge misapprehended the appropriate sentencing range; and
2. The sentencing judge erred in failing to apply the principle of parity in imposing a disproportionately high sentence relative to the sentence received by Mr. Pearce’s co-accused Mr. Goodwin.

[16] It is not necessary to address the first ground of appeal.

Analysis

[17] The principle of parity is provided for in s. 718.2(b) of the Criminal Code, R.S.C. 1985, c. C-46. It provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. This guiding principle preserves fairness in sentencing by promoting the equal treatment of offenders according to law. It applies as between co-accused charged with the same crime, and between the offender and others who have committed similar crimes, where those others are similar to the offender in terms of degree of responsibility. Given the principle of individual sentencing, and that comparable circumstances are not apt to be identical, absolute parity is not required and, indeed, may not be appropriate. However, where there is a substantial and marked disparity in sentence between similar co-accused offenders who have committed similar crimes, an appellate court should intervene: R. v. Mann, 2010 ONCA 342, 261 O.A.C. 319, at paras. 18-19.

[18] That said, a sentencing judge is not required to apply the principle of parity between co-accused offenders charged with the same crime if the judge lacks the information necessary to undertake a meaningful comparison: R. v. Jackson, 2016 ONCA 497, [2016] O.J. No. 3323, at para. 2; R. v. Courtney, 2012 ONCA 478, 294 O.A.C. 346, at para. 8.

[19] In the circumstances of this case, the sentencing judge was alerted by the Crown to consider the principle of parity between Mr. Pearce and Mr. Goodwin. He was also provided with the information required to apply the principle of parity between co-accused offenders. He should have done so.

[20] Specifically, the sentencing judge was informed in the Agreed Statement of Facts, filed at the time of Mr. Pearce’s plea, that Mr. Goodwin had received a global sentence of 30 months’ imprisonment, which was reduced to a net sentence of 24 months because Mr. Goodwin had served the equivalent of six months in pre-sentence custody. The sentencing judge was also advised that the Crown was seeking a global sentence of five years, or 60 months, against Mr. Pearce, a sentence twice as long as that imposed on Mr. Goodwin.

[21] The Agreed Statement of Facts also confirmed that there was no discernible difference in the gravity of the crimes committed by Mr. Pearce and Mr. Goodwin against Mr. Moore. Although Mr. Pearce had committed an earlier assault against the victim, the respective roles of Mr. Pearce and Mr. Goodwin in the attack that was the subject of their charges were identical.

[22] The Agreed Statement of Facts disclosed that, like Mr. Pearce, Mr. Goodwin was an addict. Although Mr. Goodwin’s actual criminal record was not before the sentencing judge, the Agreed Statement of Facts described Mr. Goodwin as having an “extensive criminal record with previous assault, aggravated assault, break and enter, and drug convictions” and “52 Niche RMS occurrences on file”. Despite the Crown’s submission that Mr. Pearce’s record was “greater” than Mr. Goodwin’s, the evidence before the sentencing judge through the Agreed Statement of Facts showed that, in fact, Mr. Pearce’s record could not be a justification for a material departure from the parity principle.

[23] The Agreed Statement of Facts further disclosed that, like Mr. Pearce, Mr. Goodwin had also committed, and was being sentenced for, a breach offence that occurred at the time of the aggravated assault. Notably, Mr. Goodwin’s breach offence was more serious and more apt to aggravate his global sentence than Mr. Pearce’s breach offence. Indeed, while Mr. Pearce was in breach of a court-ordered residency requirement at the time of the assault, Mr. Goodwin breached a probationary order imposed for an unrelated aggravated assault, the very same kind of offence for which he was sentenced in the attack on Mr. Moore.

[24] The sentencing judge was also made aware that Mr. Goodwin had pleaded guilty on October 16, 2019, four months after the assault occurred. He of course also knew that Mr. Pearce pleaded guilty much later, after seven days of trial had already elapsed.

[25] Armed with this information, the sentencing judge was obliged to consider the principle of parity between co-accused offenders charged with the same crime. It is clear from his reasons for sentence that he did not do so. He therefore erred by failing to consider the principle of parity, when there was clear reason to do so.

[26] The Crown argues that, nonetheless, the sentence imposed is appropriate. In able submissions before us, appeal counsel for the Crown relied primarily on the relative timing of the respective guilty pleas as justification for the disparity in the sentences imposed.

[27] We accept that through his early guilty plea, Mr. Goodwin was entitled to mitigation both for accepting responsibility and for entering a plea that would avoid the need for a trial. With his later guilty plea, Mr. Pearce was entitled only to mitigation for accepting responsibility and for shortening a trial that was already underway. However, the timing of the plea alone does not justify giving Mr. Pearce a sentence that, at 60 months, is twice as long as the global sentence of incarceration of 30 months imposed on Mr. Goodwin.

[28] To be sure, there is no settled mathematical formula for the sentence reduction that is warranted in recognition of an early guilty plea: R. v. Daya, 2007 ONCA 693, 227 C.C.C. (3d) 367, at para. 15. However, analogous cases such as R. v. Laverdiere, 2020 ABCA 290, [2020] A.W.L.D. 2666, highlight the substantial and marked nature of the sentencing disparity in this case. In Laverdiere, the Alberta Court of Appeal found that a sentencing judge erred by giving the accused a seven-year sentence after trial on a brutal assault, when his co-accused had received a four-year sentence after an early guilty plea. Here, of course, Mr. Pearce was not convicted after trial. He pleaded guilty, albeit during trial.

[29] The sentencing judge therefore erred in failing to apply the principle of parity. This error clearly affected the sentence imposed, since the sentence of imprisonment Mr. Pearce received is, without justification, substantially and markedly longer than the sentence imposed on Mr. Goodwin.

[30] Accordingly, it falls to us to substitute a sentence. In doing so, we bear in mind that the principle of parity between co-accused offenders cannot be relied upon to justify imposing a sentence that is so low as to be unfit: Clayton C. Ruby, Sentencing, 10th ed. (Toronto: LexisNexis Canada, 2020), at §2.59-2.63.

[31] In all the circumstances, including the extreme hardship that Mr. Pearce has experienced while in custody, where he was seriously injured as the result of several assaults, it is in the interests of justice to substitute a global sentence that is equivalent to approximately three and one-half years of imprisonment. When pre-sentence custody and sentencing credits are considered, the 100-day “time served” prison sentence we imposed at the end of the oral hearing to achieve this fit, global sentence is about one year longer than the global sentence imposed on Mr. Goodwin. The differential that remains reflects Mr. Goodwin’s earlier guilty plea.

Conclusion

[32] We grant Mr. Pearce leave to appeal his sentence, set aside the sentence of imprisonment imposed, and substitute a sentence of 100 days’ imprisonment, which Mr. Pearce has already served. We affirm the remaining components of Mr. Pearce’s sentence.

G. Pardu J.A.

David Brown J.A.

David M. Paciocco J.A.