2014 NBCA 69, 2014 NBCA 69

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 78-14-CA RENÉE NICHOLE LEMIRE APPELLANT RENÉE NICHOLE LEMIRE APPELANTE - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Lemire v. R., 2014 NBCA 69 Lemire c.

R., 2014 NBCA 69 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Deschênes The Honourable Justice Quigg CORAM : l’honorable juge en chef Drapeau l’honorable juge Deschênes l’honorable juge Quigg Appeal from a decision of the Provincial Court: June 2, 2014 Appel d’une décision de la Cour provinciale : le 2 juin 2014 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: October 14 and 15, 2014 Appel entendu : les 14 et 15 octobre 2014 Judgment rendered: October 15, 2014 Jugement rendu : le 15 octobre 2014

Counsel at hearing: For the appellant: Lisanne Maurice For the respondent: Kathryn A. Gregory Avocats à l’audience : Pour l’appelante : Lisanne Maurice Pour l’intim é e : Kathryn A. Gregory THE COURT The application for leave to appeal sentence is allowed. The disposition under appeal, which was made pursuant to s. 742.6(9) (

d) of the Criminal Code , is varied to provide for: (1) the suspension of the conditional sentence order from June 2, 2014 to October 15, 2014; (2) the appellant serve in custody the period from June 2, 2014 to October 15, 2014 (time served); and (3) the conditional sentence order resume immediately upon the appellant’s release from custody, with no change to the optional conditions, except that she shall, without delay, attend the Naomi & Ruth Rehabilitation and Wellness Centre for nine months. LA COUR La demande en autorisation d’appel de la peine est accueillie. La décision objet de l’appel, rendue en vertu de l’ al. 742.6(9)

d) du Code criminel , est modifiée ainsi : (1) l’ordonnance de sursis est suspendue du 2 juin 2014 au 15 octobre 2014; (2) l’appelante purgera en prison la période du 2 juin 2014 au 15 octobre 2014 (période d’emprisonnement déjà purgée); (3) l’ordonnance de sursis s’appliquera dès la libération de l’appelante, sans modification des conditions facultatives, sauf qu’elle devra se présenter sans délai au Centre de réhabilitation et mieux-être Naomi & Ruth, où elle séjournera pour une période de neuf mois.

The following is the judgment delivered by THE COURT (Orally) [ 1 ] This is an application for leave to appeal sentence pursuant to s. 687(1) of the Criminal Code . The sentence in question is a disposition made on June 2, 2014 by a judge of the Provincial Court in Moncton, New Brunswick, pursuant to s. 742.6(9) ( d ). The judge found a breach of the underlying conditional sentence order had been committed the very first day of its issuance, terminated the order and directed the appellant be committed to custody until the expiration of the sentence.

Section 742.6(9) sets out the dispositions available to the court where a breach of a conditional sentence order has been established. It reads as follows:

Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may (

a) take no action; (

b) change the optional conditions; (

c) suspend the conditional sentence order and direct (

i) that the offender serve in custody a portion of the unexpired sentence, and (ii) that the conditional sentence order resume on the offender’s release from custody, either with or without changes to the optional conditions; or (

d) terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence. Le tribunal peut, s’il est convaincu, par une preuve prépondérante, que le délinquant a enfreint, sans excuse raisonnable dont la preuve lui incombe, une condition de l’ordonnance de sursis :

a) ne pas agir;

b) modifier les conditions facultatives;

c) suspendre l’ordonnance et ordonner : (

i) d’une part, au délinquant de purger en prison une

partie de la peine qui reste à courir, (ii) d’autre part, que l’ordonnance s’applique à compter de la libération du délinquant, avec ou sans modification des conditions facultatives;

d) mettre fin à l’ordonnance de sursis et ordonner que le délinquant soit incarcéré jusqu’à la fin de la peine d’emprisonnement. [ 2 ] On May 9, 2014, the appellant received a conditional sentence of imprisonment for 18 months with respect to two charges of theft of property of a value not exceeding $5,000 (s. 334( b )(i)), one charge of possession of stolen property of a value not exceeding $5,000 (s. 354(1)( a )), and two charges of breach of an undertaking to abstain from contact with a person (s. 145(3)( a )).

Under the conditional sentence order applicable to all charges, the appellant was to serve the first nine months at the Naomi & Ruth Rehabilitation and Wellness Centre in Drummond, New Brunswick. The objective was to allow the appellant to acquire means of coping with her drug addiction, the root cause of her criminal activity. [ 3 ] En route from the courthouse to the Centre, the appellant, while in a state of panic, fled. She was recaptured within a few hours.

The appellant offers the following explanation for her escapade: I felt extremely overwhelmed and triggered by the situation I was put in upon my release from [Provincial] Court [in Moncton]. Instead of driving directly to the treatment program, we drove through Moncton with plans of making numerous stops as well as spending the night. We drove down Elmwood Drive, where I used to reside prior to my arrest on April 8, 2014. We stopped at a gas station for cigarettes and at the Shoppers Drug Mart for deodorant.

I used to buy needles from that Shoppers to use to shoot up, and I used to meet my drug dealer at multiple locations in the Elmwood area. I was unable to contain my addictive thoughts and behaviours as I was surrounded by everything I was trying to escape and avoid. So I ran away from the Shoppers Drug Mart and hid a couple of blocks away […] One thing that was not argued in Court on my behalf is that after I ran away I knew I did wrong and I walked back to the Shoppers to correct my mistake and this is how the police got me to arrest me.

I could have kept running but that’s all I’ve ever done in my life and it’s gotten me nowhere. So I thought I would make the right decision even though it followed a wrong one. [ 4 ] The appellant was on remand from the time of her recapture on May 9, 2014 until June 2, 2014 when the disposition judge found she had breached the conditional sentence order by fleeing. As mentioned, the judge directed the termination of the order and that the appellant be committed to custody until the expiration of the 18 month sentence.

He chose this disposition – the most severe available under s. 742.6(9) – on the basis of dicta in R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61, at para. 39 , to the effect that there should be a presumption in favour of termination once a breach is established. [ 5 ] The appellant contends the disposition judge committed reversible error in imposing a custodial sentence that is disproportionate and inordinately long having regard to the following factors: (1) she is a youthful offender (27

years of age) without any record of criminal offences over the last several years and with reasonable prospects for rehabilitation; (2) sheshowed remorse for her actions and accepted responsibility for same by pleading guilty to the underlying charges and not contesting theallegation of a breach of the conditional sentence order; (3) she spent 31 days in pre-sentence custody, which were not taken into accountin fixing the length of the sentence at 18 months; (4) she spent 25 days in custody between May 9, 2014 and June 2, 2014, during whichtime the conditional sentence order was suspended by virtue of s. 742.6(10); (5) her breach of the conditional sentence order did notinvolve the commission of an additional offence; and (6) the original offences were relatively minor and the Crown had recommended aconcurrent sentence of 6 to 9 months. [6] The applicable standard of review is set out in Steeves v.

R., 2010 NBCA 57, 360 N.B.R. (2d)88: In sum, a court of appeal is not at liberty to substitute its view of fitness for that of the sentencing judge unless the sentence imposed isthe product of either an error of law or an error in principle, or unless it is clearly unreasonable (see R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52 (QL), at paras. 46-48; R. v. Solowan, [2008] 3 S.C.R. 309, [2008] S.C.J. No. 55 (QL),2008 SCC 62, at para. 16; R. v. L.M., [2008] 2 S.C.R. 163, [2008] S.C.J. No. 31 (QL), 2008 SCC 31, at paras. 14-15; and R. v. C.A.C.(2009), 349 N.B.R. (2d) 265, [2009] N.B.J.

No. 342 (QL), 2009 NBCA 68 (Bell, J.A. for the Court, at para. 4)). If the sentence at issueis the result of reversible error, the court of appeal bears the burden of prescribing the punishment that it considers fit in thecircumstances. In R. v. R.K.J. (1998), (NB CA), 207 N.B.R. (2d) 24 (C.A.), [1998] N.B.J. No. 483 (QL), the Court framed theapplicable standard of review in this way: It is the undoubted duty of this Court to review the fitness of any sentence imposed. That it must do so bearing in mind the privilegedposition occupied by the trial judge is settled law.

All agree that the sentencing process is hardly an exact science. It is a subjectiveprocess which features a large measure of discretion. The intrinsically discretionary nature of the sentence decision explains, at least inpart, the Supreme Court’s insistence on a deferential approach to all sentence reviews. See R. v. Shropshire (M.T.), (SCC), [1995] 4 S.C.R. 227 [...], R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500 [...], and R. v. MacDonnell, (SCC), [1997] 1 S.C.R. 305. [...] Nevertheless, deference has its limits, and this Court is duty bound to vary a sentence in appropriate circumstances.

Indeed, if thesentencing court commits an error of law or an error in principle, or if the sentence imposed is clearly unreasonable, there is no longerroom for deference and this Court is required to impose the sentence which it considers fit. See R. v. F.S.A. (1996), (NB CA), 182 N.B.R. (2d) 20 (C.A.) [...], and R. v. Melanson (E.R.) (1998), (NB CA), 199 N.B.R. (2d) 338 (C.A.).[...] In this context, an error in law most commonly occurs as a result of a misapprehension of the evidence or a misapplication of judicialprecedents.

As for an error in principle, it typically involves one or more of the following: the application of wrong sentencing principles,a failure to consider relevant factors or the taking into account of irrelevant considerations. As well, there will be cases where the failureto give proper weight to each relevant circumstance will amount to an error in principle. (Our court will necessarily be slow to find anerror of this nature for, if it was otherwise, professions of deference would soon ring hollow.) Finally, a sentence will be clearlyunreasonable where it is either inordinately long or inordinately short.

It will reach this level only if it is a substantial and markeddeparture from the sentence customarily imposed for similarly situated offenders committing similar crimes. [paras. 11-13] A few years later, in R. v. LeBlanc (G.A.) (2003), 264 N.B.R. (2d) 341, [2003] N.B.J.

No. 398 (QL), 2003 NBCA 75, the Courtendeavoured to provide guidance to litigants and counsel, and to structure its own approach to sentence appeals by articulating thefollowing analytical framework: [...] intervention on appeal against sentence is inappropriate unless at least one of the following questions is answered affirmatively: (1)Is the sentence the result of an error of law?

(2) Did the sentencing judge err in principle in the exercise of his or her discretion?

(3) Isthe sentence clearly unreasonable having regard to the fundamental purpose and objectives of sentencing (s. 718), as well as theprinciples enunciated in sections 718.1 and 718.2 of the Criminal Code? [para. 17]. As a practical matter, those three questions serve as a useful reminder of the limited role an appellate court is called upon to play inconsidering the fitness of a sentence. The many examples of the application of that three-pronged approach include R. v. Munn (P.J.N.)(2004), 272 N.B.R. (2d) 269, [2004] N.B.J. No. 250 (QL), 2004 NBCA 44 (Larlee, J.A. for the Court), R. v.

Veysey (J.M.), [2006] N.B.J.No. 365 (QL), 2006 NBCA 55 (Larlee and Robertson, JJ.A. for the Court), R. v. Guay (D.A.) (2008), 337 N.B.R. (2d) 252, [2008] N.B.J.

No. 384 (QL), 2008 NBCA 72 (Richard, J.A. for the Court), R. v. Taylor (J.D.), [2009] N.B.J. No. 101 (C.A.) (QL) (Quigg, J.A. for theCourt) and R. v. Daye, 2010 NBCA 53 (Larlee J.A. for the Court). No one quarrels with the proposition that, absent legislation providing otherwise, the appropriate degree and kind of punishment is in thediscretion of the sentencing judge. That discretion is explicitly recognized in s. 718.3(2) of the Criminal Code. Moreover, it is referencedin R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J.

No. 28 (QL) as a principled basis for appellate deference: Appellate courts, of course, serve an important function in reviewing and minimizing the disparity of sentences imposed by sentencingjudges for similar offenders and similar offences committed throughout Canada. See, e.g., R. v. Knife (1982), (SKKB), 16 Sask.R. 40 (C.A.), at p. 43; R. v. Wood, [1979] O.J. No. 855, 21 Crim. L.Q. 423 (Ont. C.A.), at p. 424; R. v. Mellstrom (1975), (AB CA), 22 C.C.C. (2d) 472 (Alta. C.A.), at p. 485; R. v. Morrissette (1970), (SK CA), 1 C.C.C.(2d) 307 (Sask. C.A.), at pp. 311-12; R. v.

Baldhead, (SK CA), [1966] 4 C.C.C. 183 (Sask. C.A.), at p. 187. But inexercising this role, courts of appeal must still exercise a margin of deference before intervening in the specialized discretion thatParliament has explicitly vested in sentencing judges. (para. 92) [paras. 25-28] [7]

Section 742.6(9) sets out four dispositions for judicial consideration once a breach isestablished. The provision does not prescribe a presumption in favor of the most severe option. Rather, it vests in the disposition judge adiscretion regarding which option is best-suited in the circumstances. To be plain, the dicta in Proulx to the contrary cannot be easilysquared with the wording of s. 742.6(9). That said, and assuming there is indeed such a presumption, the court must not “automaticallyterminate” the conditional sentence order upon a breach being shown: R. v. Bendaoud, [1998] J.Q.

No. 1708 (C.A.) (QL), referenced inE.G. Ewaschuk, Criminal Pleadings & Practice in Canada, 2nd ed. (Toronto: Canada Law Book, 2011) (loose-leaf release 91), ch. 18 at184. Rather, the court must consider all pertinent circumstances and available options. In our respectful judgment, the disposition judgecommitted a reversible error of principle in failing to grasp that the “presumption” had been rebutted, on the uncontested facts in therecord at his disposal, and in failing to give appropriate consideration to the option available under s. 742.6(9)(c). [8] The application for leave to appeal sentence is allowed.

The disposition under appeal, which,as noted, was made pursuant to s. 742.6(9)(d), is varied to provide for: (1) the suspension of the conditional sentence order from June 2,2014 to October 15, 2014; (2) the appellant serve in custody the period from June 2, 2014 to October 15, 2014 (time served); and (3) theconditional sentence order resume immediately upon the appellant’s release from custody following this hearing, with no change to theoptional conditions, except that she shall, without delay, attend the Naomi & Ruth Rehabilitation and Wellness Centre for nine months. [9] It should go without saying but we add, to avoid any uncertainty, that the Provincial Court isresponsible for any follow-up in connection with the conditional sentence order. _______________________________________ J.

ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK ________________________________________ ALEXANDRE DESCHÊNES, J.A. _________________________________________ KATHLEEN A. QUIGG, J.A.