R. v. Rees, 2018 NLCA 64

Kenneth Rees (appellant) v. Her Majesty the Queen (respondent) (18/18) Indexed As: R. v. Rees 2018 NLCA 64 3 C.A.N.L.R. 479 Court of Appeal of Newfoundland and Labrador White, Hoegg and O’Brien JJ.A. November 23, 2018

Summary: The appellant, Mr. Rees, received a four-year sentence. He did not appeal his four-year sentence, but he did appeal the fact that he was being required to serve it consecutively to a sentence he was serving when his four-year sentence was imposed. The appellant argued that the Judge did not rule that his four-year sentence was to be served consecutively to the sentence he was already serving. He maintains that when a sentencing court does not address the issue, a sentence commences on the date it is imposed pursuant to the statutory presumption in section 719(1) of the Criminal Code .

Held: Appeal allowed. Hoegg J.A. (White and O’Brien JJ.A. concurring): The appellant has satisfied the criteria for obtaining leave to appeal under section 675(1) (

b) of the Criminal Code . His appeal has an arguable basis or sufficient merit to warrant the granting of leave. Section 719(1) of the Code provides that a sentence commences when it is imposed, except where a relevant enactment otherwise provides. It is established law that sentences commence on the dates they are imposed unless decided otherwise.

Section 718.3(4) of the Code requires a sentencing judge to “consider” directing that a sentence he or she is imposing be served consecutively to one which the offender is already serving. Unless a court states how the sentence it is imposing is to be served in relation to one the offender is already serving and gives its reasons why, the offender, as well as a reviewing court, are hard pressed to know whether the court has considered the issue. On review of the record, it is not possible to determine the Judge’s intentions in this case.

In any event, a divining exercise is an undesirable and inappropriate method for determining whether a Judge has ordered an offender to serve a sentence concurrently or consecutively. Such a determination has a significant effect on an offender, and the proper administration of justice entitles an offender to know that there has been consideration of the issue as required by

section 718.3(4). It was an error for the Judge to omit to indicate how the four-year sentence he was imposing was to be served in relation to the sentence the appellant was already serving, and explain why. In this case, the Judge’s inadvertence and his lack of consideration of

section 718.3 lead to uncertainty from which the appellant must benefit. The Court must consider the Crown’s submission that imposing a concurrent sentence is an error which this Court should rectify by ordering that the four-year sentence be served consecutively. There is jurisdiction under

section 687 of the Code to increase a sentence on an appeal by the offender. Because both a concurrent or consecutive sentence would have been appropriate, it is not possible to conclude from the Judge’s decision that his failure to explicitly consider whether the sentence should be consecutive or concurrent affected the sentence. As such, it is

appropriate to let the matter rest on the section 719(1) presumption that Mr. Rees’s sentence commenced when it was imposed to beserved concurrently with what remains of the sentence he was already serving. To the extent that this was the outcome sought by Mr.Rees, Mr. Rees’s appeal is allowed. Cases cited: R. v. Murphy, 2011 NLCA 16, 304 Nfld. & P.E.I.R. 266 R. v. McCarthy, 2005 NLCA 36, 248 Nfld. & P.E.I.R. 14 R. v. Crocker (1991), (NL CA), 93 Nfld. & P.E.I.R. 222, 292 A.P.R. 222 (Nfld. C.A.) Carter v. Canada (Correctional Service), 2001 BCSC 1462 R. v. Duguid (1953), (ON CA), 107 C.C.C. 310, 17 C.R. 370 (Ont. C.A.) R. v. Deschamp (1983), (NS CA), 57 N.S.R. (2d) 271 (N.S.C.

A) R. v. Barrett, 2012 NLCA 46, 324 Nfld. & P.E.I.R. 246 R. v. Hasiu, 2018 ONCA 24, 358 C.C.C. (3d) 503 R. v. Hill (1975), (SCC), [1997] 1 S.C.R. 827, 58 D.L.R. (3d) 697 R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 Carter; Stashewsky v. William Head Institution (Director), 1988 CarswellBC 1633 (W.L. Can.) (B.C.C.A.) Smith v. Mission Institution (1996), (BC CA), 80 B.C.A.C. 33 [1996] B.C.W.L.D. 2419 (B.C.C.A.) Counsel: Appearing on his own behalf, the appellant; Iain Hollett, for the respondent. This appeal was heard on October 22, 2018 before White, Hoegg and O’Brien JJ.A.

The following judgment was delivered on November 23, 2018 by Hoegg J.A. for the Court. ______________________________________________________________ Hoegg J.A.: [1] On January 29, 2018 Kenneth Rees received a four-year sentence for two break and enters and one count of possessing aninstrument for the purpose of breaking and entering. He does not appeal his four-year sentence, but he does appeal the fact that he isbeing required to serve it consecutively to a sentence he was serving when his four-year sentence was imposed. Mr.

Rees argues that theJudge did not rule that his four-year sentence was to be served consecutively to the sentence he was already serving. He maintains thatwhen a sentencing court does not address the issue, a sentence commences on the date it is imposed. [2] Mr. Rees’s appeal is respecting sentence only. He therefore requires leave of the Court in accordance with section 675(1)(

b) ofthe Criminal Code. To obtain leave, he must establish that his appeal “has an arguable basis or sufficient merit” to warrant the grantingof leave (R. v. Murphy, 2011 NLCA 16, 304 Nfld. & P.E.I.R. 266, at para. 8). [3] The Crown concedes that Mr. Rees’s appeal is not frivolous and that it has sufficient merit to be considered by this Court. Iagree. Accordingly, I would grant leave to appeal. BACKGROUND [4] On November 16, 2017, Mr. Rees was sentenced to 800 days in custody for offences unrelated to this matter.

A month earlier,on October 19, 2017, he was convicted of the offences respecting this matter and on January 29, 2018 he was sentenced to four years forthem. At the sentencing hearing, the Judge did not advert to the sentence Mr. Rees was already serving or say whether the four-yearsentence he was imposing was to be served consecutively or concurrently to the sentence Mr. Rees was already serving. [5] Mr. Rees argues that the statutory presumption in section 719(1) of the Criminal Code – that a sentence commences on the dateit is imposed – applies, and that his four-year sentence commenced on January 29, 2018.

Under this approach, his four-year sentence isbeing served concurrently with what remains of the sentence he was already serving. In practical terms, this means he will serve lesstime in prison than he would if he had to serve his four-year sentence consecutively to the sentence he was already serving. Spending a

longer time in prison is understandably significant to Mr. Rees. [6] The Crown takes a different position, arguing that the general law respecting concurrent and consecutive sentences requires thatsentences imposed at different times for different offences be served consecutively to each other.

The Crown also references section718.3(4) of the Code, which provides that a sentencing judge “shall consider directing that the term of imprisonment [he or she isimposing] be served consecutively to a sentence of imprisonment to which the accused is subject at the time of sentencing”. [7] In this case, the Judge did not advert to the fact that Mr. Rees was already serving a term of incarceration for unrelated offenceswhen he sentenced Mr. Rees for the within offences. Neither did Crown counsel nor defence counsel address the issue of section718.3(4) of the Code.

The Judge simply imposed sentence as follows: “The sentence with respect to the break-in at the Carbonear Mall will be three years. The sentence with respect to the accompanyingoffence under

section 351 will be six months concurrent. And the sentence with respect to the Marie’s Mini Mart break and enter will beone year consecutive for a total sentence of four years.” [8] The Crown acknowledges that the Judge did not explicitly consider the issue, but argues that the Judge intended that Mr. Reesserve the four-year sentence consecutively to the sentence he was already serving. In support of its position, the Crown relies on theJudge’s notations on the backs of the two Informations stating the charges.

One Information concerns the break and enter into theCarbonear Mall and possession of the break and enter instrument, and the other Information concerns the break and enter at Marie’sMini Mart. On the backs of each of the Informations there is a

section entitled “Imprisonment”. In each of these sections the words“concurrent” and “consecutive” appear with small boxes beside each word. A handwritten note following “Count 1” reads “3 yrs cons[sic]”. The box next to the word “consecutive” is then ticked and the word “all” is handwritten next to it. Next to Count 2 on theInformation relating to the break and enter at the Carbonear Mall, no box is ticked but the words “6 months conc [sic]” are handwritten. The back of the Information for the second break and enter is similar.

It bears a notation stating “1 yr cons [sic]”, with the “consecutive”box ticked and the handwritten word “all”. [9] The Crown argues that the box ticking and handwriting show that the Judge intended for Mr. Rees to serve the four-yearsentence consecutively to the sentence he was already serving for the unrelated matters. [10] The Crown also argues that the Judge’s comments at the sentencing hearing show that he intended for Mr. Rees to serve hissentence consecutively to the sentence he was already serving.

In particular, the Judge commented that the Crown was taking a lenientposition on sentencing and explained the well-established rationale between consecutive and concurrent sentences in ordering that thesentence for the second break and enter before him be served consecutively to the first. ANALYSIS [11] Section 719(1) of the Code reads: A sentence commences when it is imposed, except where a relevant enactment otherwise provides. [12]

Section 718.3(4) of the Code reads: The court that sentences an accused shall consider directing (

a) that the term of imprisonment that it imposes be served consecutively to a sentence of imprisonment to which the accused is subjectat the time of sentencing; and (

b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, including when (

i) the offences do not arise out of the same event or series of events, (ii) one of the offences was committed while the accused was on judicial interim release, including pending the determination of anappeal, or (iii) one of the offences was committed while the accused was fleeing from a peace officer. [13] It is established law that sentences commence on the dates they are imposed unless decided otherwise (R. v. McCarthy, 2005NLCA 36, 248 Nfld. & P.E.I.R. 14, at para. 11 and R. v. Crocker (1991), (NL CA), 93 Nfld. & P.E.I.R. 222, 292A.P.R. 222 (Nfld. C.A.), at para. 27). See also Carter v.

Canada (Correctional Service), 2001 BCSC 1462, R. v. Duguid (1953), (ON CA), 107 C.C.C. 310, 17 C.R. 370 (Ont. C.A.) and R. v Deschamp (1983), (NS CA), 57 N.S.R. (2d)271 (N.S.C.A). [14]

Section 718.3(4) requires, by use of the word “shall”, a sentencing judge to “consider” directing that a sentence he or she isimposing be served consecutively to one which the offender is already serving. The wording of the

section is curious, for unless a courtstates how the sentence it is imposing is to be served in relation to one the offender is already serving and gives its reasons why, theoffender, as well as a reviewing court, are hard pressed to know whether the court has considered the issue. Unless something is said, itcan be difficult to discern whether the judge and counsel simply forgot to address the issue or whether the court considered the issue anddecided to take no action.

To avoid confusion, it is important that “whether the trial judge imposes concurrent or consecutive sentences,he should state that he is doing so. Otherwise the sentences will be served concurrently” (Crocker at paragraph 30). [15] In this case the Crown is urging the Court to divine the Judge’s intentions from his words at the sentencing hearing and thehandwritten markings on the backs of the two Informations. [16] On review of the record and the backs of the two Informations, I am not convinced that the Judge’s intentions can be

determined. To my mind it is just as possible that the ticks in the boxes next to the word “consecutive” and the handwritten word “all”next to the word “consecutive” on each Information is an indication that the Judge meant for the two break and enter sentences to beserved consecutively to each other and nothing more. The fact that the sentence Mr. Rees was already serving for unrelated matters wasnot mentioned by the Judge, or counsel during submissions, makes that scenario quite possible. [17] As for the Judge’s remarks, they were made entirely within the context of the matters before him.

While it is clear the Judgeappreciated the general law respecting concurrent and consecutive sentences, it is equally clear that he applied this law in relation to theoffences before him. His application of the law to the sentencing issues before him does not necessarily mean that he must have orderedthe four-year sentence he was imposing to be served consecutively to the sentence Mr. Rees was already serving.

Had he consideredwhether the sentence he was imposing should be served consecutively to the one he is already serving, the Judge would doubtless havewanted to take into account the total effect of making the four-year sentence consecutive (R. v. Barrett, 2012 NLCA 46, 324 Nfld. &P.E.I.R. 246, at para. 36). Moreover, the Judge would likely have wanted to consider submissions from Mr. Rees and from Crowncounsel on the issue. [18] In any event, a divining exercise is an undesirable and inappropriate method for determining whether a Judge has ordered anoffender to serve a sentence concurrently or consecutively.

Such a determination has a significant effect on an offender, and the properadministration of justice entitles an offender to know that there has been consideration of the issue as required by

section 718.3(4). [19] This is not to say that such a determination can never be discerned from the record of a sentencing hearing or the backs ofInformations. There may be cases where it is obvious from remarks a Judge made at sentencing or notations made on the backs of theInformations which may lead to only one conclusion. However, that is not the case here. In this case the record does not provide thedegree of certainty respecting the Judge’s intentions to justify concluding that he ordered Mr. Rees to serve his four-year sentenceconsecutively to the sentence he was already serving.

There is no indication that the Judge turned his mind to the issue at all at thehearing, and the markings on the backs of the Informations are ambiguous. [20] In all likelihood the Judge inadvertently failed to consider the issue. Such an oversight was the case in McCarthy (see paragraph15). However, this inadvertence does not change the fact that it was an error for the Judge to omit to indicate how the four-year sentencehe was imposing was to be served in relation to the sentence Mr. Rees was already serving, and explain why. [21] In this case, the Judge’s inadvertence and his lack of consideration of

section 718.3 lead to uncertainty from which Mr. Reesmust benefit. The fact that a consecutive sentence would have been legally appropriate is irrelevant, for a concurrent sentence could alsohave been legally appropriate. To be clear, it is my decision that because of the Judge’s failure to address the issue and the ambiguity inthe markings on the backs of the Informations, the sentence, as ordered by the Judge, was concurrent (Carter at paragraph 10 andCrocker at paragraph 30). In this regard, see R. v. Hasiu, 2018 ONCA 24, 358 C.C.C. (3d) 503, at paras, 41-49, to the effect that anoffender benefits from a court’s failure to consider

section 718.3(4). [22] Given my conclusion that the Judge ordered a concurrent sentence, the Court must consider the Crown’s submission thatimposing a concurrent sentence is an error which this Court should rectify by ordering that the four-year sentence be servedconsecutively to the sentence he was already serving. To so order would have the effect of increasing the time Mr. Rees would spend inprison. [23] Mr. Rees, not the Crown, brought this sentence appeal. Nevertheless, there is jurisdiction under

section 687 of the Code toincrease a sentence on an appeal by the offender (R. v. Hill (1975), (SCC), [1997] 1 S.C.R. 827, 58 D.L.R. (3d) 697). The Crown acknowledges that an offender is entitled to notice if the Crown is seeking to increase his or her sentence on appeal, butsubmits that this notice has been provided. Accordingly, the question is whether this Court should disturb the concurrent four-yearsentence. [24] The Supreme Court of Canada recently considered the analytical approach to sentence appeals in the case of R. v. Lacasse, 2015SCC 64, [2015] 3 S.C.R. 1089.

Lacasse confirmed that, unless a sentence is “demonstrably unfit”, appellate interference will only bewarranted if the sentencing judge committed an error in principle, failed to consider a relevant factor, or overemphasized appropriatefactors. [25] Lacasse emphasizes the need to protect the discretion of sentencing judges by taking steps to ensure the term “error in principle”is not trivialized (paragraph 43) by “open[ing] the door to intervention by an appellate court” (paragraph 42) with the mere identificationof an error.

The Court went on to rule that while the three errors listed above are pre-conditions for appellate intervention, there is theadditional requirement that it must appear from the trial judge’s decision that such an error had an impact on the sentence (paragraph44). It is only when this is so that an appellate court should replace the sentence with what they consider appropriate. [26] In this case, the Judge committed an error in principle by failing to consider whether the sentence should be consecutive orconcurrent to time already being served.

The remaining question is whether it appears from the decision that the failure to consider theissue of a consecutive or concurrent order impacted the sentence. [27] In this case it cannot be said that a consecutive sentence would be the only appropriate sentence. In considering the section718.3(4) issue, the Judge could also reasonably have concluded that the four-year sentence be served concurrently (Barrett).

Accordingly, I am unable to conclude from the Judge’s decision that his failure to explicitly consider whether the sentence should beconsecutive or concurrent affected the sentence. [28] As such, it is appropriate to let the matter rest on the section 719(1) presumption that Mr. Rees’s sentence commenced onJanuary 29, 2018 to be served concurrently with what remains of the sentence he was already serving. To the extent that this was theoutcome sought by Mr. Rees, Mr. Rees’s appeal is allowed. I add only that it may have been more appropriate to have had the issuedetermined by way of a habeas corpus application.

In this regard see Carter; Stashewsky v. William Head Institution (Director), 1988CarswellBC 1633 (W.L. Can.) (B.C.C.A.); and Smith v. Mission Institution (1996), (BC CA), 80 B.C.A.C. 33 [1996]B.C.W.L.D. 2419 (B.C.C.A.). Judicial review of the incarcerating institution’s decision to require Mr. Rees to serve his four-yearsentence consecutively could also be pursued, although the difference in standard of review may be a concern. However, in the

circumstances, it is in the interest of justice to decide the issue as brought by Mr. Rees. [ 29 ] In the result, service of Mr. Rees’s four-year sentence imposed on January 29, 2018 commenced on that date and will continue until it expires. Appeal allowed.