ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-219-MO
DATE: 2014 Jul 17
BETWEEN:
RYAN McCANN
Applicant
– and –
ATTORNEY GENERAL OF CANADA
Respondent
F. O’Connor, for the Applicant
G. Tzemenakis, for the Respondent
HEARD: July 8, 2014 at Kingston
Tranmer, J.
Habeas corpus DECISION
NATURE OF THE APPLICATION
[1] The Applicant makes an application for an Order that a writ of Habeas Corpus ad Subjiciendum with Certiorari in aid thereof issue ordering that he be set free from custody as his sentence has been fully satisfied.
BACKGROUND FACTS
[2] The facts are not in dispute.
[3] On May 21, 2010, the Applicant was sentenced in the Ontario Court of Justice in respect of pleas of guilty to 24 charges arising out of an Internet scheme to have young women perform sexual acts on web camera. The charges included extortion, luring, uttering threats, making child pornography, invitation to sexual touching and criminal harassment. He also entered a plea of guilty to two counts of sexual touching of two of the complainants, who were under the age of 16. He also entered a plea of guilty to a breach of his probation order.
[4] At the time of sentencing, he had been in pre-sentence custody since his arrest on April 6, 2009.
[5] The Crown submissions to the sentencing court were that in consideration of the totality principle, a period of imprisonment in the range of 8 to 10 years was appropriate.
[6] The defence submitted to the court that a range of 5 to 7 years in prison was appropriate in view of the age of the offender, the fact that this was his first period of imprisonment, and the long-term interest of society for his rehabilitation.
[7] The sentencing judge concluded that each one of the offences before her was serious and compounded by several layers of aggravating factors. She found that the accused’s moral culpability was extremely high. He was effective in manipulating the young women victims, and when manipulation failed, his weapons of choice were threats which rendered the complainants powerless and unable to control their own lives. She found that he left behind him a trail of scarred and emotionally fragile teenagers and young women. The court indicated that its sentence must denounce sexual interference with children and must denounce the making of child pornography which inherently harms society by degrading and violating children. The court also found similar importance in the denunciation and deterrence with respect to luring or extortion for the purpose of sexual gratification.
[8] The court stated “the appropriate sentence is that of a total of eight years less predisposition custody. The resolution of this matter was predicated upon counsel's joint submission that credit for predisposition custody consist of 2-for-1.”
[9] The court then set out the sentences imposed with respect to each count as follows:
The sentences will be as follows:
Count 1 18 months incarceration (consecutive)
Counts 2, 3 18 months (concurrent)
Count 4 24 months incarceration (consecutive)
Count 5 24 months (concurrent)
Count 6 6 months (consecutive)
Count 7 pdc of 13 months + 2 years of incarceration
Counts 8-13 2 years (concurrent)
Counts 19 & 20 2 years (concurrent)
Counts 14-18 18 months (concurrent)
Counts 21 to 25 12 months (concurrent)
Count 26 6 months (concurrent)
Section 109 prohibition for 10 years
Section 161 prohibition for life
DNA application granted
Order of forfeiture granted
Released: May 21, 2010 original signed by Justice C.S. Dorval…….
The Honourable Madam Justice C.S. Dorval
[10] I note that the predisposition custody totalled just over 13 months.
[11] The Warrant of Committal issued by the court on May 21, 2010, and which accompanied the Applicant into the federal penitentiary system is attached as Schedule A to these reasons.
[12] The issue in this case arises with respect to count 7 which indicates presentence custody of 13 months, but neither the box marked consecutive or the box marked concurrent is ticked off. For all of the other counts, one or other of these boxes was ticked off.
[13] The Correctional Service of Canada interpreted the Warrant of Committal as indicating a total aggregate sentence of four years. The Court’s reasons for sentence were not received by CSC until October 5, 2010.
[14] On January 17, 2014, CSC conducted its usual file audit in preparation of the Applicant's upcoming warrant expiry date then believed to be May 20, 2014. This audit revealed the discrepancy between the court’s reasons for sentence and the CSC interpretation of the Warrant of Committal.
[15] CSC requested that the court support office clarify what sentence had been imposed. The Court responded that the sentence of two years on Count 7 should be consecutive and that pre-detention custody had already been taken into account with the sentence, so no additional deductions to the sentence were required. On January 22, 2014, the sentencing judge sent an email to CSC, which read as follows: “I understand that you have concerns with respect to the interpretation of my written reasons for sentence in the above matter. This is to clarify the conclusions at paragraph 31 of the reasons. As noted, I imposed two years in addition to the predisposition custody on Count 7 of the Information. The sentences on all the other Counts are noted as either consecutive or concurrent to that one. The total sentence is indeed that of 6 years in addition to the predisposition custody for which I gave 24 months’ credit. The confusion may stem from the fact that there was 13 months’ predisposition custody and therefore, I did not give quite 2-for-1 credit; that was intended.” The sentencing judge initialled an Amended Warrant of Committal indicating Count 7 to be consecutive. This was provided to CSC, who then commenced to administer a six-year sentence rather than a four-year sentence.
POSITION OF THE APPLICANT
[16] The Applicant submits CSC was correct in treating the sentence as a four-year sentence. The Applicant submits that in law Count 7 must be treated as concurrent because the sentencing judge did not specify whether it was to be consecutive or concurrent to the other Counts. He submits it is not clear that Count 7 was intended to be the lead count. The reasons of the trial judge indicate she was aware that she could impose sentences on the individual Counts out of order, but did not do so.
[17] The Applicant also submits that to change the sentence from a 4 year sentence to a 6 year sentence on the eve of his release is unfair, contrary to fundamental justice and contrary to his Charter rights. He says that to do so, brings the administration of justice into this repute.
POSITION OF THE RESPONDENT
[18] The Respondent submits that clearly the total sentence imposed by the sentencing judge was one of 6 years in custody. He submits the judge’s reasons clearly indicate this and that the sentence is accurately reflected in the original Warrant of Committal.
[19] The Respondent also submits that in any event, the sentencing judge was, in law, entitled to clarify the sentence she intended to impose and to change the Warrant of Committal to reflect more accurately the intended sentence.
[20] The Respondent also submits that to treat the Applicant’s sentence as a 4 year sentence would bring the administration of justice into disrepute. Counsel points out the Applicant knew from the judge's reasons on May 21, 2010 that he was sentenced to a total of 6 years in custody and that he is taking advantage of a misinterpretation of the sentence by CSC.
ANALYSIS
[21] In my view, the reasons for sentence are crystal clear that the sentencing judge intended to impose a sentence of 8 years in custody less predisposition actual custody of 13 months credited on a two-for-one basis. This amounts to a 6year total sentence as is indicated in the reasons for sentence where the judge sets out the sentence imposed on each individual count. In my view, it is clear that she treated count 7 as the lead count for her total sentence and the remaining counts are to be concurrently or consecutively served to that count and to each other. I say this because it is count 7 against which she credits the predisposition custody and it is the only count with respect to which she does not indicate consecutive or concurrent. In my view, the fact that she calculated 24 months as credit for pre-disposition custody rather than 26 months does not alter the clarity of her intended sentence.
[22] In my view, taking count 7 as the lead count, the Warrant for Committal accurately reflects the intended sentence of 6 years in custody, taking into account the predisposition custody credit. It would have been preferable had the Warrant for Committal been completed in fact showing count 7 as the first count entered on the form. Failure to do so does not, in my view, detract from the clarity of the intended sentence or give rise to any confusion or ambiguity.
[23] On this basis, this would be a case where CSC initially misinterpreted the sentence imposed, but has now corrected its interpretation to reflect accurately the sentence that was imposed and the application would fail as the Applicant has demonstrated no deprivation of liberty for the purposes of this habeas corpus proceeding.
[24] If I am wrong on this point, then I find that the law as set out in R. v. Malicia 2006 31804 (ONCA), as adopted and interpreted in R. v. Cote 2007 ONCJ 604 is determinative of the application. The amendment to the Warrant of Committal was permissible. It did not amount to reconsideration or alteration of the original sentence imposed. It reflected the sentence intended by the sentencing judge. The amendment simply confirmed and clarified the intended sentence.
[25] The sentencing judge was in the best position to know what she intended, and she made her intended sentence clearly known to CSC promptly after CSC's misinterpretation was first discovered. There is nothing in the record to powerfully indicate any other intention but a 6 year custodial sentence commencing May 21, 2010. This is not a case of an impermissible reconsideration or alteration of the original sentence.
[26] I am also mindful of Justice Cronk’s caution in Malacia, supra, that in a proper case, the passage of time between the pronouncement of the sentence and the identification of the error might so compromise the appearance or reality of trial fairness as to prevent correction of the error in the interests of justice. This is not such a case.
[27] The error in this case was not detected until January 7, 2014. The error on the part of CSC was corrected on January 22, 2014. The Applicant was informed on January 28, 2014. This application was issued May 16, 2014 with the return date of May 30, 2014, at which time, the July 8, 2014 hearing date was set.
[28] I note that in Cote, supra, the error was discovered some six months following sentencing. The Court's decision on the issue was rendered about one year following the initial sentencing.
[29] In the circumstances of the Applicant's case, it cannot be said that the passage of time so compromises the appearance or reality of trial fairness as to preclude correction of the error in the interest of justice. In fact, in the Applicant's case, it would appear that although he knew or should have known that he had been sentenced to 6 years in custody on May 21, 2010, he sought to take advantage of the CSC misinterpretation of that sentence. He did not raise any question of confusion or ambiguity or discrepancy with respect to the CSC interpretation of the sentence. He would have known at the sentencing hearing that his own counsel urged the sentence of 5 years to 7 years in custody. On the record, at no time was a sentence of 4 years in custody urged by any party. On the record, the sentencing judge made no mention whatsoever of an appropriate total sentence of six years, less predisposition custody.
[30] I agree that the underlying principle of ensuring that the sentence imposed by the court is carried out should not be determined or turn on the timing of the error being discovered. What is important is that once the error was discovered, it was promptly and lawfully corrected.
[31] To treat the Applicant’s sentence as a 4 year sentence would bring the administration of justice into disrepute.
[32] I find that there is no unfairness to the Applicant in what has occurred. There is no breach of fundamental justice or of any Charter rights. There is no prejudice to the Applicant that the sentence that was intended to be imposed by the sentencing judge is now being enforced. He should not benefit from an administrative error.
[33] On this point, therefore, I find that the Applicant is serving the sentence that was lawfully imposed and that he is not suffering from a deprivation of liberty.
[34] For these reasons, this Application is dismissed.
Tranmer J.
Released: July 17, 2014
COURT FILE NO.: CR-14-219-MO
DATE: 2014 Jul 17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RYAN McCANN
Applicant
– and –
ATTORNEY GENERAL OF CANADA
Respondent
Habeas corpus decision
Tranmer, J.
Released: July 17, 2014