Court File and Parties

Court of Appeal for Ontario Date: 20221125 Docket: C70929

Before: Pardu, Miller and Copeland JJ.A.

Between: His Majesty the King Respondent

And: Paul Vincent Antaya Appellant

Counsel: Paul Vincent Antaya, acting in person Megan Stephens, appearing as duty counsel Erica Whitford, for the respondent

Heard: November 8, 2022

On appeal from the sentence imposed on July 5, 2022 by Justice Shannon Pollock of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant seeks leave to appeal, and if leave is granted, appeals against the order terminating his conditional sentence order and directing that he serve the remaining approximately eight and a half months of the sentence in custody.

[2] Despite the able submissions of Ms Stephens, we are not persuaded that the sentencing judge erred in the order she made.

[3] The parties are in agreement that the standard of review of the order imposed for breach of a conditional sentence order is the same as for a sentence appeal. Substantial deference is owed to the decision of the sentencing judge. Absent an error in principle that had an impact on sentence, an appellate court will intervene only if a sentence is demonstrably unfit.

[4] The appellant argues that the sentencing judge overemphasized the presumption in favour of terminating a conditional sentence order and directing the balance of the sentence served in custody, where a breach is found. Relatedly, the appellant argues that the sentencing judge failed to consider key principles of sentencing, including proportionality and restraint, codified in ss. 718.1 and 718.2 (d) and (e) of the Criminal Code, R.S.C. 1985, c. C-46.

[5] We are not persuaded that the sentencing judge overemphasized the presumption in favour of termination or failed to consider the principles of proportionality and restraint. The sentencing judge gave brief oral reasons for the order she made. Although some aspects of her reasoning could have been more clearly expressed, in the context of the arguments made at the sentencing hearing, and the fact that this was the appellant’s second breach of the conditional sentence order, we are satisfied that she did not overemphasize the presumption in favour of termination of a conditional sentence, or fail to consider relevant sentencing principles.

[6] In R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 21 and 38-39, Chief Justice Lamer held that where an offender breaches a condition of a conditional sentence order, there should be a presumption that they serve the remainder of the sentence in jail. He explained that the threat of incarceration would help ensure compliance with the conditions of the order, and would distinguish conditional sentence orders from probation orders.

[7] That said, s. 742.6(9) provides sentencing judges with a variety of possible orders, where a breach of a conditional sentence order is proven. Ultimately, the sentencing judge has discretion to determine which of the available orders in s. 742.6(9) is appropriate in all of the circumstances: R. v. Langley, 2005 BCCA 478, 202 C.C.C. (3d) 431, at paras. 6-7, 13; R. v. Ramsaran, at para. 65.

[8] It is clear that the remedial options set out in s. 742.6(9) represent a sliding scale of options available to a sentencing judge, from least restrictive (take no action), to moderately restrictive (change the optional conditions or order the offender to serve a portion of the unexpired sentence in custody and then resume the conditional sentence, with or without a change in conditions), to most restrictive (terminate the conditional sentence and direct that the offender be committed to custody for the balance of the sentence).

[9] As with any other sentencing decision, determining the appropriate order for a breach of a conditional sentence order is an individualized process. In deciding which order is appropriate in a given case, the sentencing judge must consider all of the circumstances, including the nature and circumstances of the breach; the circumstances of the offender; the time remaining on the conditional sentence order; and the ordinary principles of sentencing (including, for example, denunciation, general and specific deterrence, proportionality, and restraint): Langley, at paras. 6-7, 13. In cases where, as is sometimes done, the conditional sentence imposed was longer than an appropriate sentence of incarceration would have been, this may also be a relevant factor. These factors must be considered within the particular context of the conditional sentencing regime.

[10] We are not persuaded that the sentencing judge gave undue weight to the presumption in favour of termination. After referring to the presumption in favour of termination, the sentencing judge said that she was considering all of the circumstances in determining the appropriate order. She then gave four specific reasons why she was of the view that terminating the conditional sentence order was appropriate. The sentencing judge’s reasons for judgment on the breach and for sentence are clear that she found that the breach was deliberate, that she was concerned that this was a second breach by the appellant of the conditional sentence order, and that she had come to the conclusion that the appellant was not prepared to abide by the conditional sentence order.

[11] We do not summarize all of the reasons of the sentencing judge for her conclusion that terminating the conditional sentence was appropriate in all of the circumstances, but one factor that was clearly important to her conclusion was that this was the second time the appellant had been found to have breached his conditional sentence order.

[12] The first breach occurred in January 2022. The appellant was sentenced for the first breach in late March 2022. Prior to being sentenced for the first breach, he served approximately 60 days in custody. In all of the circumstances, including that time in custody, in March 2022, the sentencing judge concluded that the appropriate sentence for the first breach was to make an order under s. 742.6(9)(b) changing the optional conditions of the conditional sentence order to add a condition requiring electronic monitoring.

[13] In light of this history, it is clear that the sentencing judge was aware when she sentenced the appellant for the second breach that she had a discretion to make any of the orders available under s. 742.6(9).

[14] Nor are we persuaded that the sentencing judge failed to consider the principles of proportionality and restraint. The sentencing submissions before her were very brief. The submissions of counsel on behalf of the appellant focused on the issues of proportionality and restraint. In particular, counsel for the appellant made the submission to the sentencing judge that a period of incarceration shorter than the remainder of the conditional sentence order would be more proportionate in the circumstances. The sentencing judge rejected that option. But given the focus of the submissions on the issues of restraint and proportionality, and given the sentencing judge’s prior decision to make a less restrictive order and not to terminate the conditional sentence after the first breach, it is clear that she was alive to the relevance of both proportionality and restraint.

[15] Finally, the appellant argues that the sentence that resulted from the termination of his conditional sentence order was unfit. The appellant submits that the sentence was disproportionate to the nature of the original offences and to the breach. He further submits that the sentence offends the jump principle, as the longest previous sentence imposed on the appellant was 60 days in jail.

[16] In our view, the appellant’s submission regarding the fitness of the sentencing focuses unduly on the circumstances of the second breach in isolation. The jurisprudence on conditional sentence breaches is clear that they are a unique form of sentence. The order imposed for breach of a conditional sentence serves not only as a sentence for the breach, but also as a means to address whether it is still appropriate for the offender to serve the original sentence, or some portion of it, in the community: R. v. McIvor, 2008 SCC 11, [2008] 1 S.C.R. 285, at paras. 12-15; Ramsaran, at paras. 63-65. The fitness of an order made under s. 742.6(9) following the breach of a conditional sentence order must be assessed in the context of the circumstances of the original offence(s), the circumstances of the breach, and the circumstances of the offender.

[17] In this case, the appellant was initially sentenced to a 17-month conditional sentence for a number of offences, including break and enter, theft, and possession of a variety of types of stolen vehicles. These offences took place over a nine-month period. Counsel for the respondent fairly described the offences as a “crime spree” over a lengthy period of time. The initial sentence was based on a joint submission, and was not appealed.

[18] The appellant breached the conditional sentence order in January 2022 and again in May 2022. Considered globally, the end result of the termination of the conditional sentence is that the appellant served 6 months on the conditional sentence order under house arrest conditions, and, including the custody served after the first breach, will serve up to 11 months in custody (subject to remission). [1] We do not find this sentence to be disproportionate in the circumstances.

[19] Nor are we persuaded that the sentence imposed offends the jump principle, which “cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past”: R. v. Borde (2003), 63 O.R. (3d) 417, at para. 39. That principle must be applied considering not only the highest sentence the offender has previously served, but also the circumstances of the current offences for which he is being sentenced: R. v. Courtney, 2012 ONCA 478, 294 O.A.C. 346, at para. 10. In the context of a breach of a conditional sentence order, that would include the circumstances of the offence(s) for which the conditional sentence was originally imposed, and the circumstances of the breach of the conditional sentence order. In all of the circumstances of this appeal, the jump in sentence does not render the sentence unfit.

[20] Leave to appeal sentence is granted, but the sentence appeal is dismissed.

“G. Pardu J.A.” “B.W. Miller J.A.” “J. Copeland J.A.”

[1] Under the statutory scheme, time spent in custody pending the disposition of whether the breach has been proven does not count towards remission credit: Criminal Code, s. 742.6(13); R. v. Atkinson, 174 C.C.C. (3d) 144 (Ont. C.A.), at para. 17.