R. v. Bedard-Morin, 2022 ONCA 844

Publication Ban Warning

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15

Court of Appeal for Ontario

DATE: 20221205 DOCKET: C70768

Tulloch, van Rensburg and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

Kevin Bedard-Morin Appellant

Counsel: Kevin Bedard-Morin, in person Naomi Lutes, appearing as duty counsel Erica Whitford, for the respondent

Heard: October 4, 2022

On appeal from the sentence imposed by Justice Michelle Fuerst of the Superior Court of Justice, on May 11, 2022.

Reasons for Decision

[1] The appellant pleaded guilty to receiving material benefits from the commission of an offence, contrary to s. 286.2(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. He was subsequently sentenced to 22 months of imprisonment, less 30 days’ pre-sentence custody credit, resulting in 21 months’ incarceration.

[2] At the time of the appellant’s guilty plea, he was in custody in Quebec, awaiting trial on another outstanding charge (the “Quebec offence”), in addition to the charge which is the subject of this appeal (the “Ontario offence”). The Quebec charge was subsequently resolved, and the appellant was sentenced on the Quebec offence before he was sentenced on the Ontario offence. At the time of the appellant’s sentencing on the Quebec offence, all his pre-sentence custody credit was attributed to that offence.

[3] The appellant now seeks to appeal his sentence on the Ontario offence on the basis that it was excessive. He makes three submissions. First, he submits that the sentence was not fair, given that he was under the impression that he would receive a sentence of time served in light of the amount of pre-sentence custody he had served awaiting trial. Second, he submits that the cases and ranges of sentence relied on by the sentencing judge are distinguishable from his own, as his case did not involve any violence. Third, although the trial judge considered the effect of COVID-19 for the Quebec pre-sentence custody, the appellant submits that one month credit was insufficient, given the length of time he spent in pre-sentence custody.

[4] For the reasons below, we grant leave to appeal but dismiss the sentence appeal.

A. ANALYSIS

[5] An appellate court may only vary a sentence imposed where the trial judge has erred in principle, failed to consider relevant evidence, misapprehended a material fact, or imposed a sentence that is demonstrably unfit: R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at paras. 25-26; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 41 and 44. Otherwise, the decision of the sentencing judge is owed a high degree of deference.

(1) Pre-Sentence Custody Credit

[6] We agree with the Crown that the appellant’s pre-sentence custody served in relation to his Quebec offence cannot also be attributed to the present Ontario offence. That pre-sentence custody had already been attributed to a sentence on an unrelated offence. Consequently, it is distinct from any pre-sentence custody that can be attributed to the Ontario offence. Accordingly, the appellant is not entitled to any pre-sentence custody credit in addition to the 30 days that the trial judge attributed to his Ontario offence.

[7] A review of the procedural background of this case supports this conclusion. After the appellant’s guilty plea, but before sentencing, it was discovered that the appellant had used up his pre-sentence custody credit for an unrelated matter in Quebec. As a result, the Crown’s position changed from seeking time served to a sentence of two years’ further custody. The matter was subsequently adjourned so the appellant could consider his position.

[8] On January 14, 2022, defence counsel advised that the appellant was content with the guilty plea and the facts already admitted, and that sentencing would no longer be a joint submission. The matter was adjourned to April 1, 2022, where defence counsel made submissions for a suspended sentence or, in the alternative, a conditional sentence. Defence counsel requested that the 30 days of pre-sentence custody solely attributable to the Ontario offence be applied at sentencing.

[9] Notably, defence counsel did not argue that any additional pre-sentence custody should be applied. In fact, counsel advised that there was “no basis” for the court to double-dip into the appellant’s pre-sentence custody served in relation to the Quebec offence.

[10] In crafting a fit sentence, the trial judge considered the harsh conditions of the appellant’s pre-sentence custody served during the COVID-19 pandemic in mitigation, as this factor was not considered by the Quebec sentencing judge.

[11] This court’s decision in R. v. Latif, 2019 ONCA 309, sets out the law on pre-sentence custody for different offences. In particular, this court noted that s. 719(3) of the Criminal Code permits a court to take into account time spent in custody as a result of the offence when sentencing an individual for that same offence: at para. 18. However, the court went on to explain that giving credit for time spent serving a sentence for another offence would distort the sentencing regime: at para. 19. In the present case, applying the appellant’s pre-sentence custody served for an unrelated Quebec offence would amount to double-counting.

[12] Nor do we find any unfairness in the sentencing judge’s approach to sentencing. The appellant knew that the Crown’s position had changed from seeking time served to seeking further jail time. Despite this knowledge, and despite being given time to consider his position, the appellant decided to proceed with his guilty plea and sentencing. As such, we find that the appellant was not prejudiced and did not experience unfairness in the process.

[13] Consequently, we dismiss this ground of appeal.

(2) Case Law and Sentencing Ranges

[14] We do not accept the appellant’s point regarding the case law and sentencing ranges. In our view, the 22-month sentence imposed by the sentencing judge was not excessive.

[15] The trial judge first considered the individual circumstances of the appellant. Then, turning to the aggravating factors, the trial judge acknowledged that violence and coercion were not present in this case. Nonetheless, at its core, this case involved an offence of exploitation. There were three complainants. The offences occurred over a duration of months, and they resulted in the appellant receiving material benefit in an amount that was more than minimal. Further, the appellant has a significant criminal record and, at the time of the offence, was subject to a no-contact order with one of the complainants.

[16] In terms of the mitigating factors, the trial judge appropriately recognized and considered the fact that the appellant had pleaded guilty. Moreover, the trial judge was aware of the appellant’s arguments as they related to extortion. However, based on the aggravating factors, a high end reformatory jail sentence was required. Consequently, 22 months was the appropriate sentence in the circumstances of the case.

(3) Effect of COVID-19 on Pre-sentence Custody

[17] Finally, we do not accept the appellant’s claim that the sentencing judge erred in her assessment of the impact that COVID-19 had on the appellant while in custody awaiting trial. While the sentencing judge could not give credit for pre-sentence custody that was used up for the Quebec charges, she did specifically take into account the harshness of the appellant’s pre-sentence custody and the stress due to the risk of transmission of COVID-19 among inmates as mitigating factors. We see no error in how the sentencing judge credited the pre-sentence custody that was properly attributable to the Ontario charges.