R. v. Maisonneuve, 2014 NBCA 32

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 105-13-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - MARC MAISONNEUVE RESPONDENT MARC MAISONNEUVE INTIMÉ R. v. Maisonneuve, 2014 NBCA 32 R. c.

Maisonneuve, 2014 NBCA 32 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Richard The Honourable Justice Bell CORAM : l’honorable juge en chef Drapeau l’honorable juge Richard l’honorable juge Bell Appeal from a decision of the Provincial Court: September 30, 2013 (sentence) Appel d’une décision de la Cour provinciale : le 30 septembre 2013 (prononc é de la sentence) 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 and judgment rendered: May 21, 2014 Appel entendu et jugement rendu : le 21 mai 2014 Reasons delivered: July 24, 2014 Motifs déposés : le 24 juillet 2014

Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : l’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Richard The Honourable Justice Bell Souscrivent aux motifs : l’honorable juge Richard l’honorable juge Bell Counsel at hearing: For the appellant: Maurice Blanchard For the respondent: Martin Goguen Avocats à l’audience : Pour l’appelante : Maurice Blanchard Pour l’intim é : Martin Goguen THE COURT At the conclusion of the hearing on appeal, the Court determined the seriousness of the offence under s. 348(1) (

b) of the Criminal Code (breaking and entering into a dwelling-house and sexual assault), committed under circumstances to which s. 348.1 applies, called for the imposition of a custodial sentence within the range recommended by the Attorney General. The Court also confirmed the mitigating circumstances (guilty plea, first offence by a relatively young offender) did not justify a more lenient sentence. Finally, the Court held the probation order did not comply with s. 732.1(3)( f ).

The Court allowed the Attorney General’s application for leave to appeal and his appeal, and varied the sentence imposed in Provincial Court to sentence the respondent to a nine-month term of imprisonment and to order he subsequently comply with the terms of the probation order issued in first instance, subject to one correction: that he perform the prescribed community service over a period of eighteen months. The sentence was upheld in every other respect. We closed by indicating more detailed reasons would follow. Here are those reasons.

English version of the Court’s reasons for judgment delivered by DRAPEAU, C.J.N.B. I. Introduction [ 1 ] After hearing the parties, we allowed the Attorney General’s application for leave to appeal, as well as his appeal from the sentence imposed on the respondent by a Provincial Court judge for the indictable offence set out in s. 348(1) (

b) of the Criminal Code (“Breaking and Entering”). The following are the reasons that prompted me to intervene pursuant to s. 687(1) ( a ) (“Powers of Court on Appeal against Sentence”).

[ 2 ] This is a case of breaking and entering into a dwelling-house followed by a sexual assault in the bedroom of the occupant of the premises. The disposition challenged on appeal is a suspended sentence and the respondent’s release pursuant to the terms of a probation order that include a requirement of 120 hours of community service [TRANSLATION] “over a period of two years”. [ 3 ] At the sentencing hearing, the Crown prosecutor stressed the seriousness of the offence and pressed for a term of imprisonment.

However, he recommended a relatively lenient sentence, namely imprisonment for a period of six to nine months, to reflect the mitigating circumstances. [ 4 ] The Attorney General submits the sentencing judge erred in principle as follows: the sentence imposed fails to denounce the respondent’s conduct, features no provision designed to deter the commission of offences and is disproportionate to the seriousness of the offence.

He reiterates that a custodial sentence of at least six months and no more than nine months is warranted. [ 5 ] In my view, the judge did indeed err in principle as noted by the Attorney General and the sentence imposed is unreasonable having regard, in particular, to the provisions of s. 348.1 (aggravating circumstance - home invasion), ss. 718(

a) and ( b ) (objectives of denunciation and deterrence) and s. 718.1 (principle of proportionality). The judge also erred in law by prescribing a period of more than 18 months, the maximum allowed by s. 732.1(3)( f ), for the performance of the community service. In my judgment, the seriousness of the offence calls for a custodial sentence and the mitigating circumstances (guilty plea, first offence by a relatively young offender) do not justify a sentence of less than nine months. II.

Context [ 6 ] At all material times, the respondent and the victim worked at Time to Shine (a motor vehicle cleaning business in Shediac, N.B.) and the respondent was in a romantic relationship with a niece of the victim, who lived in a single family dwelling in Shediac with her son, aged thirteen, and daughter, aged five. [ 7 ] During the summer of 2011, and while at work, the respondent made remarks with a sexual overtone to the victim.

The victim was alarmed and brought this behaviour, which she considered serious and aberrant, to the attention of her niece, the respondent’s partner, who reassured the victim by telling her she was aware of the remarks made by the respondent and that, in her mind, he was only joking. [ 8 ] The following year, more specifically during the night of September 22, 2012, the respondent attended at the victim’s home after consuming alcohol and illicit drugs (cannabis and amphetamine (“speed”)).

He broke and entered the victim’s dwelling and sexually assaulted her while she slept in her bedroom with her young son. [ 9 ] The respondent entered the victim’s home by going through a basement window he had broken. He cut himself in the process and then left a trail of blood drops from the basement to the second floor where the victim’s bedroom is located. When he got there, the respondent approached the victim’s bed where he began fondling her breasts. When she woke up and asked the respondent to stop, he told her [TRANSLATION] “that he wanted her”.

The victim told him to leave, which he did. [ 10 ] The victim reported the incident to the RCMP shortly thereafter and the respondent was arrested a few hours later. It was noted, at the time, that he was injured and in a fairly advanced state of intoxication. When questioned by investigators, the respondent admitted to the breaking and entering and sexual assault I have just described. However, he claimed to have only [TRANSLATION] “spotty memories” of the incident, a recollection problem he purported to explain away by his intoxication.

The respondent was 21 years old at the time. [ 11 ] On July 26, 2013, the respondent pled guilty to a charge that on September 22, 2012, he broke and entered the victim’s dwelling and committed the indictable offence of sexual assault therein. The judge ordered the preparation of a pre-sentence report. She also invited the victim to file a written statement describing the impact of the crime.

[ 12 ] The pre-sentence report confirms: (1) the respondent comes from a good family; (2) he had no criminal record; and (3) he regrets his crime. According to his mother, the underlying criminal proceedings taught the respondent [TRANSLATION] “a big life lesson”. The respondent states he ceased consuming alcohol and drugs after his arrest. [ 13 ] The victim impact statement, on the other hand, reveals she has suffered a great deal, both emotionally and financially. She had to seek psychological counselling and quit her job following the crime.

Being ineligible for employment insurance (too few hours of work), she was driven to join the ranks of social assistance recipients. The following is her unvarnished description of the crime’s impact: [TRANSLATION] Insecurity in my own home, as well as in my community. The fear of encountering him in this small town (Shediac). [The offender] was a friend, co-worker, partner to my niece […]. I feel angry, because I didn’t ask him to come into my home. I close my eyes and I see him in my house again in a pathetic state. Being startled at the smallest noise and keeping the curtains closed have isolated me.

That isolation is all of the emotions, including fear, grief, trust, suspicion, self-esteem, security …… etc. All of my daily activities and my lifestyle changed in that moment on September 21, 2012. My family turned against me (my sister and niece). I felt alone and didn’t know what to do or say to make them understand that I was the victim … My 13-year-old son also had night terrors and was afraid of someone else breaking into our house.

An alarm system was installed so that we could stop being afraid of it happening again… The sound of the alarm will wake me up … My family ties have been broken … I left my job because I couldn’t concentrate or go see clients anymore. I felt like I had to explain myself since I thought that everyone knew … In this situation, I thank God that my daughter, who turned five on September 13, 2012, wasn’t there. We were supposed to celebrate her birthday on September 23, 2012, but we had to cancel. This was my private life, and no one should enter anyone’s house like he did.

I want to live my life and I don’t want to be a victim all my life… although I have to live with this memory for the rest of my days … [ 14 ] On September 30, 2013, the sentencing judge, concerned primarily with facilitating the respondent’s rehabilitation, suspended the passing of sentence for a period of two years and ordered he be released under the terms of a probation order, namely that he [TRANSLATION]: (1) keep the peace and be of good behaviour; (2) “report to Probation Services when ordered to do so”; (3) refrain from having any “direct or indirect contact with [the victim]”; (4) “not use any illicit or non-prescribed drugs or alcohol”; (5) “take

part in any assessment and complete any program that Probation Services might deem appropriate”; and (6) perform 120 hours of community service “over a period of two years”. The judge also rendered the orders usually issued in similar circumstances (DNA sample collection, firearm possession prohibition, registration as a sex offender and surcharge). III. Relevant Statutory Provisions [ 15 ] The relevant statutory provisions include the following parts of ss. 348(1)(

b) and ( d ), 348.1, 718 and 718.2 and 732.1(3)( f ): 348.

(1) Every one who (

b) breaks and enters a place and commits an indictable offence therein, or […] is guilty (

d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life […] 348.1 If a person is convicted of an offence 348.

(1) Quiconque, selon le cas :

b) s’introduit en un endroit par effraction et y commet un acte criminel; […] est coupable :

d) soit d’un acte criminel passible de l’emprisonnement à perpétuité, si l’infraction est commise relativement à une maison d’habitation […] 348.1 Le tribunal qui détermine la peine à infliger à la personne déclarée coupable d’une

under

section […] 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence, (

a) knew that or was reckless as to whether the dwelling-house was occupied; and (

b) used violence or threats of violence to a person or property. 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or infraction prévue [à l’article] 348 à l’égard d’une maison d’habitation est tenu de considérer comme une circonstance aggravante le fait que la maison d’habitation était occupée au moment de la perpétration de l’infraction et que cette personne, en commettant l’infraction :

a) savait que la maison d’habitation était occupée, ou ne s’en souciait pas;

b) a employé la violence ou des menaces de violence contre une personne ou des biens. 718. Le prononcé des peines a pour objectif essentiel de contribuer, parallèlement à d’autres initiatives de prévention du crime, au respect de la loi et au maintien d’une société juste, paisible et sûre par l’infliction de sanctions justes visant un ou plusieurs des objectifs suivants :

a) dénoncer le comportement illégal;

b) dissuader les délinquants, et quiconque, de commettre des infractions;

c) isoler, au besoin, les délinquants du reste de la société;

d) favoriser la réinsertion sociale des délinquants;

e) assurer la réparation des torts causés aux victimes ou à la collectivité;

f) susciter la conscience de leurs responsabilités chez les délinquants, notamment par la reconnaissance du tort qu’ils ont causé aux victimes et à la collectivité. 718.2 Le tribunal détermine la peine à infliger compte tenu également des principes suivants :

a) la peine devrait être adaptée aux circonstances aggravantes ou atténuantes liées à la perpétration de l’infraction ou à la

mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, […] ( iii.1 ) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, […] (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; […] (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. […] 732.1(3) The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following: (

f) perform up to 240 hours of community service over a period not exceeding eighteen months; situation du délinquant; sont notamment considérées comme des circonstances aggravantes des éléments de preuve établissant : […] ( iii.1 ) que l’infraction a eu un effet important sur la victime en raison de son âge et de tout autre élément de sa situation personnelle, notamment sa santé et sa situation financière, […]

b) l’harmonisation des peines, c’est-à-dire l’infliction de peines semblables à celles infligées à des délinquants pour des infractions semblables commises dans des circonstances semblables; […]

d) l’obligation, avant d’envisager la privation de liberté, d’examiner la possibilité de sanctions moins contraignantes lorsque les circonstances le justifient;

e) l’examen de toutes les sanctions substitutives applicables qui sont justifiées dans les circonstances, plus particulièrement en ce qui concerne les délinquants autochtones. […] 732.1(3) Le tribunal peut assortir l’ordonnance de probation de l’une ou de plusieurs des conditions suivantes, intimant au délinquant :

f) d’accomplir au plus deux cent quarante heures de service communautaire au cours d’une période maximale de dix-huit mois; IV. Analysis and Decision A. Standard of review

[16] The applicable standard of review is well known. It is set out in R. v. Steeves, 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 issue isthe result of reversible error, the court of appeal bears the burden of prescribing the punishment that it considers fit in the circumstances.[para. 25] [17] The Court had previously proposed, in R. v.

LeBlanc (G.A.), 2003 NBCA 75, 264 N.B.R. (2d)341, a three-prong test, the terms of which were designed to underscore, in practice, the appellate court’s limited role when consideringthe fitness of a sentence: […] 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] In my view, questions (1), (2) and (3) must be answered in the affirmative in this case. B. Error of law [18]

Section 732.1(3)(

f) provides the court may prescribe, as a condition of a probation order, thatthe offender perform up to 240 hours of community service “over a period not exceeding eighteen months”. The judge did not complywith this provision when she allowed the respondent to perform the 120 hours of community service over a period of two years. C. Denunciation, deterrence and the principle of proportionality [19] It bears immediate mention that the ruling in first instance confirming the applicability of s.348.1 (“Aggravating Circumstance - Home Invasion”) is not challenged on appeal.

This is a perfectly reasonable concession since eachof the prerequisites for the application of that provision is met. It is also worth remembering that s. 348(1)(

d) provides everyone whobreaks and enters a dwelling-house and commits an indictable offence therein is guilty of an indictable offence and liable toimprisonment for life. [20] In my opinion, the trial judge committed a material error in principle by failing to attribute to theobjectives of denunciation and deterrence their proper predominant influence in the crafting of a just sentence for a home invasion likethe one in the case at bar. In this regard, suffice it to refer to the observations of Green, J.A., writing on behalf of the Court, in R. v.Parker, 2014 NBCA 17, [2014] N.B.J.

No. 72 (QL): The jurisprudence on point is clear: when crafting a sentence respecting home invasion, the predominant sentencing principles are to bedenunciation and deterrence, the latter being both general to the wider population and specific to the individual offender. This is true butfor exceptional circumstances. […][para. 41] [21] The message from the courts must be clear and firm: in all but exceptional circumstances, asentence of imprisonment must be imposed on offenders, even first-time offenders, when s. 348.1 applies: R. v. Goulette, 2009 NBCA49, [2009] N.B.J.

No. 367 (QL), at para. 44, per Richard, J.A., for a unanimous court. Moreover, the offender’s self-induced intoxicationcannot constitute an exceptional circumstance. [22] In my view, the record does not reveal any “exceptional circumstance” that: (1) turns the

respondent’s rehabilitation into the predominant objective in crafting the appropriate sentence; and (2) justifies a non-custodial sentence. In fact, a custodial sentence of more than nine months might have been appropriate if the Crown prosecutor had not suggested the aforementioned range of custodial sentences (six to nine months). I make this observation having regard mainly to the seriousness of the offence and the significant impact it had on the victim (see s. 718.2 ( a)(iii.1) ). [ 23 ] The respondent’s intoxication was relied upon in first instance to explain his crime.

In my opinion, that intoxication in no way forecloses a finding that the respondent’s crimes (breaking and entering and sexual assault) were premeditated and perpetrated knowingly. After all, the respondent attended at the victim’s home, entered it, went from the basement to the second floor, assaulted the victim and left the premises unaided by anyone. Moreover, he pled guilty, thereby admitting the essential elements ( actus reus and mens rea ) of the offence with which he was charged.

Finally, the pre-sentence report confirms that, at the time of the underlying events, the respondent was an alcohol and illicit drug user: [ TRANSLATION ] [The offender ] reports that he used marijuana for the first time at the age of 18. He mentions that he used it occasionally. The accused explains that he has also tried speed a few times. […] [The offender] mentions that he consumed alcohol for the first time at the age of 16.

He mentions that he used to drink occasionally […]. [The offender] reports that he used to drink approximately 12 beers a week. […] [ 24 ] Ultimately, I came to the conclusion that the sentence imposed in first instance: (1) infringes s. 732.1(3)( f ); (2) fails to reflect the application of key principles; and (3) is clearly unreasonable. It was therefore my duty to vary the sentence imposed in the court below and to prescribe the one that I considered fit, having regard to the aggravating and mitigating circumstances and to the recommendation made by the Crown prosecutor at the hearing.

After carefully considering all pertinent factors, I concluded: (1) the sentence imposed in Provincial Court should be varied to sentence the respondent to a nine-month term of imprisonment and to order he subsequently comply with the terms of the probation order issued in first instance, subject to the following correction: that he perform the 120 hours of community service over a period of eighteen months; and (2) the sentence under appeal should be upheld in every other respect. ____________________________________ J. Ernest Drapeau, Juge en chef du Nouveau-Brunswick ____________________________________ J.C.

Marc Richard, j.c.a. ____________________________________ B. Richard Bell, j.c.a.