R. v. Taylor, 2013 NLCA 42

Date: 201 30620 Docket: 12/08 & 12/12 Citation: R. v. Taylor , 2013 NLCA 42 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : HER MAJESTY THE QUEEN APPELLANT AND : EDWARD TAYLOR RESPONDENT Coram: Green C.J.N.L., White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201001G5982 Appeal Heard: November 8 & 9, 2012 Judgment Rendered: June 20, 2013 Reasons for Judgment by White J.A. Dissent in Part by Hoegg J.A. Separate Concurring Reasons by Green C.J.N.L. Counsel for the Appellant (Provincial Crown): Sheldon Steeves Counsel for the Appellant (Federal Crown): Andrew Brown Counsel for the Respondent: Mark Gruchy

White J.A.: [ 1 ] This is an appeal by the Federal Crown and Provincial Crown of the sentence and order imposed on a correctional officer at Her Majesty’s Penitentiary for possession for the purpose of trafficking drugs into Her Majesty’s Penitentiary. It raises questions regarding the fitness of sentence, the legality of conditions in a probation order and, as Mr. Taylor was granted parole several months prior to the hearing of the appeal, the circumstances in which a person should be returned to prison to serve the balance of a fit sentence. [ 2 ] Leave to appeal (which was not disputed by Mr.

Taylor) was granted by the Court. BACKGROUND [ 3 ] Mr. Taylor was employed as a correctional officer at Her Majesty’s Penitentiary in St. John’s. Following a complaint that Mr. Taylor was trafficking illegal drugs into the prison, the Royal Newfoundland Constabulary conducted an investigation of Mr. Taylor. This led to the seizure of the following items from Mr. Taylor’s motor vehicle: 31 oxycodone pills; 38 morphine pills; less than 100 grams of marihuana; 3 ecstasy pills; 5 clonazepam pills; 48 other prescription pills; tobacco; a lighter; a cell phone charger and rolling papers. [ 4 ] Mr.

Taylor provided a statement to the police indicating from whom he had purchased the drugs, and indicated that he had obtained the drug dealer’s phone number from an inmate who had asked Mr. Taylor to bring drugs into Her Majesty’s Penitentiary. [ 5 ] At the time that the drugs were seized from Mr. Taylor, he was subject to a probation order prohibiting him from possessing drugs and controlled substances.

He subsequently pleaded guilty to five counts of possession for the purposes of trafficking, contrary to subsection 5(2) of the Controlled Drugs and Substances Act and one count of breach of probation, contrary to

section 733.1 of the Criminal Code . Mr. Taylor also has a prior conviction for assault causing bodily harm. [ 6 ] A letter from Dr. Neil Young (a psychiatrist) was tendered into evidence. This showed that Mr. Taylor had a history of mental health problems but described him as being in a generally stable psychiatric state at the time of the offence. It was also clear from the pre-sentence report and letters tendered into evidence that Mr. Taylor had addiction issues and had taken steps to deal with same. DECISION OF THE SENTENCING JUDGE [ 7 ] Mr.

Taylor was sentenced to 16 months imprisonment (15 months in respect of possession for the purpose of trafficking and 1 month consecutive in respect of breach of probation) and 18 months probation as well as ancillary orders under

section 109 and

section 487.051 of the Criminal Code . The sentencing judge stated: [38] Mr. Taylor , you will serve 16 months in a Provincial institution. This will be followed by 18 months probation. Along with the normal Statutory Conditions, you will comply with the following conditions: 1. Continue with counselling for alcohol, drug addiction and mental health issues, as recommended by your doctor or counsellors. 2. Abstain from the possession or use of alcohol and all non-prescription drugs, both legal and illegal. 3. Not to associate with any person(

s) you know to have a criminal record, with the exception of a family member, should they be in that category. 4. There will be a forfeiture order of all drugs and exhibits seized as a result of these charges being laid. 5. There will be a firearms prohibition, pursuant to s. 109(1) (

c) of the Criminal Code , for a ten year period. 6. There will be a DNA order, pursuant to s. [487.051 (3)] of the Criminal Code , to allow for DNA samples to be taken by the appropriate authorities. [ 8 ] The sentencing judge further ordered and directed: [39] I also order that Mr. Taylor, during his period of incarceration, have contact with his own psychiatrist or another psychiatrist referred by his own.

Any medications prescribed for him by his physicians are to be administered under the supervision of prison authorities, more specifically as they relate to mental health issues; that he be able to avail of mental health counseling during his time in custody, wherever that may be under supervision as deemed necessary. The Crown is to notify the superintendent of the institution where Mr.

Taylor is housed, of the order relating to counseling and medicines prescribed by his psychiatrist or family physician. [40] It has to be clear to prison authorities that, if the Courts of the Province are incarcerating individuals with mental health issues, the necessary infrastructure programs and medications required to keep inmates healthy have to be provided for them, under proper supervision. [ 9 ] The warrant of committal prepared following the imposition of sentence also referenced the order directing the prison authorities to provide Mr. Taylor with his own psychiatrist.

ISSUES [ 10 ] The Federal Crown appeals the fitness of sentence and the portions of the order dealing with medical treatment. The Provincial Crown appeals certain terms of the probation order. Before this Court each Crown supported the other’s submissions. [ 11 ] I would summarize the issues in the following manner:

(1) Was the sentence demonstrably unfit? If so, what is a fit sentence?

(2) Was the treatment order illegal?

(3) Are the probation conditions appropriate?

(4) If the sentence is unfit, should Mr. Taylor be returned to prison?

(5) If not a return to prison, what is the appropriate disposition in this case? ANALYSIS Fitness of sentence [12] In arriving at a total sentence of 15 months incarceration relative to the drug charges, the sentencing judge referred to caseswhere sentences were imposed on offenders trafficking in low or small amounts of drugs and where no breach of trust was involved: R. v.Swanson (1980), 25 A.R. 197 (NWTCA); R. v. Frost (1994), (MB CA), 100 Man. R. (2d) 170 (MBCA); R. v. Dion(1981), 1981 ABCA 110 , 59 C.C.C. (2d) 380 (ABCA); R. v. Barrett, 2008 NLCA 23, 275 Nfld. & P.E.I.R. 308; R. v.

Collins,2009 NLTD 33, 286 Nfld. & P.E.I.R. 225. [13] The sentencing judge did consider breach of trust as an aggravating factor, quoting paragraphs 8-9 of R. v. English, 2008 QCCQ5069, 58 C.R. (6th) 354: … It would be difficult to exaggerate the scope or depth of harm caused within prisons by the traffic and consumption of drugs. Theimportation of drugs into a prison by anyone is a serious crime.

Importation by a guard is worse. … The guard who personally traffics in contraband prohibited by criminal law betrays her sworn duty, subverts the security of the prisonand defects to the ranks of those whom she is meant to guard. [14] Nevertheless, having adverted to the seriousness of such behaviour, the sentencing judge did not consider case law appropriateto the facts before him.

The defining characteristics of this case are trafficking of drugs in a prison and the breach of trust by thecorrections officer who did so. [15] In determining an appropriate range of sentence, the following cases provide guidance: (

i) R. v. Oake, [1984] A.J. No. 402 (ABCA); that case similarly involved a prison guard trafficking drugs into a prison. In that case,Mr. Oake delivered a package he believed to be cocaine to an inmate for an agreed upon fee of $300. There were some mitigating factorspresent in that case including the fact that Mr. Oake was a first time offender and had an unblemished 26 year military career and a sixyear career as a correctional officer.

The Court found, however, that the aggravating factors, including the fact that the offence involveda breach of trust and that the drugs were brought into a prison, “far outweigh[ed] the mitigating factors”. Moir J.A. held that thecircumstances called for a “stern and denunciatory” sentence. The Court of Appeal imposed a 3 ½ year sentence of imprisonment. (ii) R. v. Li, [2004] O.J. No. 6269 (S.C.J.); Mr. Li was a lawyer convicted of trafficking heroin, hashish and cannabis into a prisonwhile meeting with an inmate. The mitigating factors in that case included: the fact that Mr.

Li had an “excellent” pre-sentence reporthighlighting his contributions to his community; the support of his friends, colleagues and family; his background and education; his age;and his lack of criminal record. The aggravating factors included: Mr. Li was trafficking in a large quantity of heroin (valued atapproximately $30,000); the drugs were brought into a prison; and the offence involved a breach of trust. Caputo J. further found that theoffence was premeditated, which he considered to be aggravating.

Caputo J. held that the “dominant component” of the sentencereflected the principles of denunciation and general deterrence. Mr. Li was sentenced to four years imprisonment. (iii) R. v. Domke, 2006 ABPC 252, 68 Alta. L.R. (4th) 372; Mr. Domke pleaded guilty to four counts of possession for the purposes oftrafficking. The drugs involved in that case were morphine, codeine, oxycodene and hydromorphone; in total there were approximately500 pills, amounting to a value of $15,000. Mr. Domke was a prison guard and was arrested in the parking lot of the prison where heworked.

The mitigating factors identified by Allen P.C.J. included: Mr. Domke had recently ceased using drugs; he was partiallymotivated by pressure from inmates who used his fear to extort his co-operation (although the mitigating effect of this was reducedbecause Mr.

Domke was also paid for his involvement); he cooperated in the police investigation and pleaded guilty; he presented a lowrisk of recidivism; he was young; he lived with his parents who continued to be supportive; he was a prison guard and would face addedhardships in prison; and he presented an impressive number of reference letters from former teachers, his parents, his probation officerand current employer. The aggravating factors in that case included: it involved a substantial amount of opiates as part of a well-organized scheme to deliver drugs to inmates; and the offence involved a breach of trust. Mr.

Domke was sentenced to five yearsimprisonment. (iv) R. v. Moore, 2009 BCSC 1926, [2009] B.C.J. No. 2880; Moore, a corrections officer, was convicted of one count of traffickingcannabis, one count of trafficking in ecstasy and two counts of trafficking anabolic steroids, all into the prison in which he worked. Thecontraband that Moore trafficked into the prison was estimated to be valued at $30,000 and he was paid $3,000 for the delivery.Following discovery of the contraband by other correctional officers, Moore released other inmates, contrary to protocol,

an act whichcould have compromised the investigation and endangered the security of the other officers and inmates. Moore did not have a goodemployment record but the trial judge accepted that he was not in a healthy frame of mind at the time he committed the offence. BrownJ. sentenced Moore to four years imprisonment. (

v) R. v. Calder, 2012 NSCA 3, 312 N.S.R. (2d) 1; the Nova Scotia Court of Appeal dismissed Ms. Calder’s appeal from bothconviction and sentence. Calder was a criminal lawyer convicted of trafficking hydromorphone, possession of hydromorphone for thepurposes of trafficking and possession of marihuana for the purposes of trafficking. While meeting with an inmate, she was caughtpassing him a package containing the contraband. Calder did not have a criminal record and was suffering from depression at the time ofthe offence.

She enjoyed support from the community, had no issues with drugs or alcohol, and she was not trafficking for financialgain. The sentencing judge also took note of the fact that Ms. Calder’s career was essentially over. The sentencing judge had also noted

that serious drugs were involved and the offences involved breaches of trust. She was sentenced to 30 months imprisonment. (vi) R. v. Taylor, 2012 SKQB 292; Taylor, a correction center guard, was convicted of 14 different counts, including: breach of trust;conspiracy to traffic in controlled substances; trafficking cocaine, Demerol, morphine, marihuana and cannabis resin; possession ofcocaine, Demerol, morphine, marihuana and cannabis resin for the purposes of trafficking; possession of proceeds of crime exceeding$5000; and obstruction of justice.

Judicial stays were entered with respect to the possession charges. He pleaded guilty to breach of anundertaking. The aggravating factors present in that case included: Taylor brought the contraband into a prison; he occupied a positionof trust; he was motivated by financial gain; the offences involved planning; the contraband packages smuggled into the prison alsocontained objects which could be used as weapons; the trafficking occurred on approximately 30-40 occasions over a period ofapproximately 2 ½ years; and the types of drugs involved.

The mitigating factors present were: Taylor had a spotless employmentrecord; he was involved in a number of volunteer initiatives; he was a fire marshal and provincial wellness coordinator; he had no priorconvictions; and had extensive community support as evidenced by a number of character references. Taylor was sentenced to four yearsimprisonment in relation to the trafficking offences and one year for breach of trust.

The sentences for these offences were upheld onappeal although Taylor’s total sentence was varied: 2013 SKCA 33. [16] The above cases, involving circumstances similar to the case before this Court, indicate a sentencing range of about 2 ½ to 5years. As noted above, the cases relied on by the sentencing judge did not involve similar aggravating factors. [17] Further, the sentencing judge took Mr. Taylor’s mental health issues into consideration. While there is a history of suchproblems, Dr. Young described Mr.

Taylor as being in a generally stable psychiatric state at the time of the offences, unlike thecircumstances in R. v. Edmunds, 2012 NLCA 26, where there was a clear nexus between the offender’s mental illness and the offence. [18] The reliance by the sentencing judge on inappropriate case law resulting in a failure to consider relevant aggravating factors andthe overemphasis on Mr.

Taylor’s mental health as a mitigating factor when the evidence was that he was in a generally stablepsychiatric state are errors in principle which warrant intervention by this Court. [19] In the result, the sentence of 15 months imposed by the sentencing judge is demonstrably unfit. [20] In the circumstances of the offence and the offender, and in light of the above case law a fit sentence is 36 months incarceration. Legality of treatment order [21] The Provincial Crown argued that the sentencing condition imposed by the sentencing judge relative to Mr.

Taylor beingtreated by his own psychiatrist while in prison is illegal in that there was no jurisdiction or power under the Criminal Code to impose it. [22] It is clear that the sentencing judge was purporting to make this disposition as part of an order with legal effect: [39] I also order that Mr. Taylor, during his period of incarceration, have contact with his own psychiatrist or another psychiatristreferred by his own.

Any medications prescribed for him by his physicians are to be administered under the supervision of prisonauthorities, more specifically as they relate to mental health issues… (Emphasis added.) [23] It appears that the sentencing judge was motivated by the laudable objective of ensuring continuity of treatment of Mr. Taylorby the same psychiatrist, something that is likely to be of considerable benefit to a patient, particularly in dealing with mental illness.

The question, however, is whether there is any legal basis for making such an order. [24] Counsel for the Provincial Crown is correct in his assertion that there is no express provision in the Criminal Code thatcontemplates or purports to authorize the imposition of a mental health treatment order as part of a sentencing disposition.

Counselsubmitted that, as a result, when a sentencing judge wishes to ensure that certain treatment is made available to an offender to assist inhis rehabilitation or for some other legitimate sentencing objective, the judge’s comments must be put in the form of a recommendationto the custodial authorities, rather than in the form of an order that purports to be legally binding. He cited R. v. J.(C.) (1997), (NL CA), 155 Nfld. & P.E.I.R. 197 (Nfld.

C.A.) at para. 49 in support of that proposition. [25] It is true that Green J.A., as he then was, stated in that case that “whether [treatment at a mental health centre or otherpsychiatric facility] is made available to the offender rests with the prison authorities and the availability of the appropriate facilities”,but that statement was made in the context of a discussion as to whether a court could sentence an offender to a mental health facilityrather than to a penal institution. [26] That is not this case. Here, the sentencing judge sentenced Mr. Taylor to a proper penal institution.

The issue is whether hecould in some manner order that, within the confines of his incarceration, he be allowed to receive what he considered proper medicalcare in the form of continuing treatment from his own, as opposed to the prison’s, health professional. [27] One cannot be blind to the fact that the issue of the appropriateness of medical authorities in Her Majesty’s Penitentiarychanging medications of offenders after they have been admitted to the facility has been a matter of considerable public discussion anddebate in recent years.

The sentencing judge in this case may well have been responding to these concerns out of a desire to ensure thatMr. Taylor’s existing medication plan – which appeared to be working – not be interrupted. [28] Nevertheless, I agree that, as a general proposition, a sentencing judge’s intrusion into this area ought to be exercised sparinglyand should generally be couched in the form of a recommendation rather than an order. [29] That is not to say, however, that there could never be a legitimate occasion where an order allowing for treatment by the

offender’s own physician while in the penitentiary could be made. For example, a judge faced with a submission that an elderly offender’s serious heart condition would jeopardize his life in prison if he were not kept under the strict supervision of his own specialist who could administer medication in a specific manner might be persuaded, because of the seriousness of the offence and the need to express denunciation, that incarceration is nevertheless warranted.

He might only be willing to do so, however, if he could be assured that the offender’s medical treatment were to be continued, so that a sentence to a term does not turn into a death sentence. Where the imposition of a treatment condition is bound up with the justification for the sentence of incarceration, such a condition might well be warranted. [ 30 ] I would not rule out, therefore, a sentencing judge in a superior court having authority to order that an offender be treated by his own psychiatrist in certain circumstances.

In this regard, I note that the judges of the Supreme Court of Newfoundland and Labrador are visitors to Her Majesty’s Penitentiary.

Section 13 of the Prisons Act, RSNL 1990, C. P-21, provides as follows: 13. A judge of the Court of Appeal or the Trial Division, a justice of the peace or a member of the House of Assembly may, at reasonable times, visit and inspect the penitentiary. (Emphasis added.) [ 31 ] The concept of a “visitor” to a public institution that requires a degree of independent supervision and direction is not peculiar to the penitentiary. It exists in the case of the Law Society ( Law Society Act, 1999 , SNL 1999, c. L-9.1, s. 4) and Memorial University ( Memorial University Act , RSNL 1990, c. M-7, s. 9).

The concept has a long history. It originated in English canon law where a senior ecclesiastical official would visit and inspect the activity of a more junior one, correcting mistakes and giving instructions.

The concept is mentioned in Blackstone’s Commentaries on the Laws of England (Oxford: The Clarendon Press, 1765), where he observes that “the law has provided proper persons to visit, enquire into, and correct all irregularities that arise in such corporations, either aggregate or sole, and whether ecclesiastical, civil or eleemosynary…” ( Book the First , pp. 467-468). [ 32 ] English prisons were superintended by visiting justices for centuries: Viscount Simonds, ed, Halsbury’s Laws of England , Vol. 30, 3d ed. (Toronto, ON: Butterworth, 1959), at paras. 1095-1098.

In Newfoundland, the power of visitation was recognized even before Her Majesty’s Penitentiary was constructed in 1859. See,

An Act for the Establishment and Regulation of a Penitentiary in Saint John’s , SN 1851 (14 Vic.), c. 8, s. 16. [ 33 ] Whatever may have been the manner of carrying out visitations centuries ago, the manner of exercising the power today must be interpreted and applied in a modern context. Visitation must mean more than the right to have tea with the warden. The language of s. 13 of the Prisons Act makes it clear that it is also a power to inspect . There is no point in having a power to inspect unless one can act on the results of the inspection.

The information gathered in the course of inspection must be capable of being used for the purposes of the person gathering the information. [ 34 ] Thus, in the case of a member of the House of Assembly, the member may use the results of the inspection to inform him or herself for the purpose of initiating or debating appropriate legislation relating to corrections or in referring issues respecting inadequate conditions or improper treatment of prisoners to an appropriate committee of the House of Assembly for investigation.

In like manner, a judge may use the results to inform him or herself of conditions at the prison so that in the process of sentencing a particular offender he or she can ensure that a disposition suitable to the circumstances of the particular offender is arrived at. If the conditions at the Penitentiary (such as a medication administration policy) are such that they may impact adversely on the health of a prisoner in a manner that would make an otherwise appropriate sentence inappropriate, the judge could in an appropriate case give directions as to how these ancillary treatments should be carried out.

As noted in the quotation from Blackstone set out above, the power is a power to visit, inquire “and correct”. The concept contains a dispositive element; the power is not merely to facilitate information gathering in the abstract. [ 35 ] I would also add that, in the modern context, the power to “visit” is not necessarily restricted to physical attendance of the judge at the facility in question.

I see nothing wrong in a judge, in the context of a specific sentencing hearing, deciding to seek specific information by requiring the superintendent or some other knowledgeable official to attend court and provide the relevant information in that manner instead. [ 36 ] I accordingly conclude that in appropriate circumstances a sentencing judge may have the power to make a direction ancillary to a sentencing disposition under the Criminal Code that deals with the manner in which an offender is to receive medications or other medical treatment if, based on a proper record, the offender’s health may be adversely impacted if the offender’s existing treatment plan is not continued. [ 37 ] I have noted that recently-enacted legislation is expressed to repeal the Prisons Act , including s. 13 : Correctional Services Act , SNL 2011, c.

C-37.00001, s. 51. However, this legislation has not yet been brought into force. Until that happens, the Prisons Act continues to govern. I would also observe in passing that, to remove the reference in s. 13 to visitation by the judges at Her Majesty’s Penitentiary may not be sufficient to eliminate the visitation power altogether, in light of the jurisdiction’s origins in canon law and other non-statutory sources. It may be necessary to have gone further and purported, within constitutional limits, to remove the jurisdiction expressly. As Chief Justice Forbes noted in Clift v. Holdsworth (1819), 1 Nfld.

L.R. 167 at 168, the Supreme Court of Newfoundland has “an universal control in all cases and over all courts within the boundaries and subject-matter of its jurisdiction, unless it were ousted by express words.” The jurisdiction to visit the penitentiary may therefore survive the repeal of the Prisons Act. [ 38 ] While it is not necessary for the disposition in this matter, I would also note in passing that there may well be other ways in which the manner of treatment of a prisoner within the prison system may be subject to review and possible correction in the courts.

There always remains the ability of a prisoner to have the manner of his treatment, if serious enough, to be dealt with in the context of a habeas corpus application, with mandamus in aid, or in a s. 12 Charter application . Such avenues are, however, more likely to have relevance following initial incarceration. [ 39 ] Applying this analysis to the current case, it is still not possible to justify the making of the order that the sentencing judge made in this case. The extent of the information that he had about Mr.

Taylor’s medical conditions was limited to statements from his counsel during the sentencing hearing to the effect that Mr. Taylor “has ongoing treatment from a physician who has been treating him

for a number of years” and that he was presently taking prescribed drugs for his condition. This was supported by a pre-sentence reportwhich reported that he sees his physician every two weeks and that, according to Mr. Taylor, “he is on a multitude of medications for hismental health problems which are given to him in three days supply”. This information was based on self-reporting by Mr. Taylor. Hishealth professionals were not contacted. The author of the report nevertheless stated his opinion that Mr.

Taylor should “continue withthe treatment plan laid out by his treating professionals”. [40] No evidence or other information was placed before the judge as to what the medication administration policy of thepenitentiary was or how incarceration might interrupt his treatment. There was no “visitation” undertaken, even in the extended format ofthe judge requiring the attendance of penitentiary officials at court to provide requisite information. There was therefore nothing uponwhich the judge could exercise his visitation and inspection powers and nothing upon which he could make an ancillary direction.

Hewas left, therefore, with the option of making a recommendation only. [41] Accordingly, the order that Mr. Taylor have contact with his own psychiatrist and that medications prescribed by his physiciansbe administered to him must be set aside and treated, instead, as a strong recommendation. Appropriateness of probation conditions [42] In addition to the order relating to treatment, the Crown also took issue with the conditions set out in paragraphs 2, 4, 5 and 6 ofthe probation order imposed by the sentencing judge. [43] The condition that Mr.

Taylor “[A]bstain from the possession or use of alcohol and all non-prescription drugs, both legal andillegal” is, the Crown argues, vague and overly broad. I agree. As proposed by the Crown, that condition should be worded in themanner set out in s. 732.1(3)(

c) of the Criminal Code: (

c) abstain from (

i) the consumption of alcohol or other intoxicating substances, or (ii) the consumption of drugs except in accordance with a medical prescription. [44] With respect to conditions 4, 5 and 6 the Crown is correct in its argument that there is no legitimate purpose for their inclusionin the order. Separate orders would have been made under sections 109 and 487.051(3) of the Criminal Code and of the ControlledDrugs and Substances Act. [45] In

summary, an appropriate probation order should retain conditions 1 and 3, and follow the wording of s. 732.1(3)(

c) relativeto alcohol and drugs, and should not include forfeiture, firearms, and DNA references. The order should be varied accordingly. Return to prison? [46] Mr. Taylor was sentenced on January 23, 2012. The Crown appealed the sentence on February 21, 2012. Full parole wasgranted on July 6, 2012 after approximately one third of the 16 month sentence was served. The transcript was filed on May 22, 2012. The Crown factums were filed on July 19 and July 23, 2012 and the Respondent’s factum on September 21, 2012.

An application to seta date for the appeal was heard on October 9, 2012 and the appeal was heard on November 8 and 9, 2012. [47] Mr. Taylor was on full parole some 4 months before, in the ordinary course, his appeal was heard. [48] I have already concluded that an appropriate sentence would be 36 months incarceration recognizing that such a significantbreach of trust calls for a strong penalty directed at both deterrence and denunciation.

A similar offender in similar circumstances shouldexpect a period of incarceration within that range. [49] It now has to be determined if “in the particular circumstances of this case, the interests of justice are best served by allowingthe sentence imposed by the trial judge to run its course” (see R. v. Kane, 2012 NLCA 53 at para. 48). [50] At the time of hearing the appeal Mr.

Taylor had been on parole for some 4 months (with no indication of inappropriatebehavior), had resumed his relationship with his son, was gainfully employed, was accepted for a heavy equipment operator coursecommencing May, 2013, was continuing treatments and making progress in respect of mental health and addictions concerns, and hadcontinuing support from his family. [51] This Court’s approach to the re-incarceration of an offender consequent upon an increase of his sentence on appellate reviewhas varied in the cases.

One approach has been to start with a presumption that rehabilitation of the offender will be better achieved if heis not sent back to prison unless there are special or extraordinary circumstances that justify that course.

The other approach has been tostart from the opposite presumption: that an offender should serve the sentence that is determined to be appropriate for him or her unlessthere are special or extraordinary circumstances that would justify treating the offender differently. [52] The first approach, which I will refer to as the “rehabilitation approach” is exemplified by the following cases from this Court: R. v. Porter (1980), 26 Nfld. & P.E.I.R. 26; R. v. Warr (1987), (NL CA), 62 Nfld. & P.E.I.R. 158; R. v. Oates (1992), (NL CA), 100 Nfld. & P.E.I.R. 289; R. v.

Downey (1992), (NL CA), 102 Nfld. & P.E.I.R. 14 (perMarshall J.A.); R. v. Roebotham (1992), (NL CA), 102 Nfld. & P.E.I.R. 125 (per Marshall J.A., dissenting); R. v.Parsons (1993), (NL CA), 108 Nfld. & P.E.I.R. 359; Canada (Attorney General) v. Butt (1993), (NL CA), 106 Nfld. & P.E.I.R. 92; R. v. J.J., 2004 NLCA 81; R. v. Tuglavina , 2011 NLCA 13; and Kane.

A defining feature of thereasoning in these cases is that an offender’s progress in rehabilitation, especially pending his appeal, should not be jeopardizednotwithstanding the fact that the sentence originally imposed is regarded by the appellate court as unfit. [53] For example in Porter, Mifflin C.J.N. dismissed the Crown’s appeal from sentence while stating that the sentence was

“intolerably low”. He noted that the respondent had been free for 3 months and was doing all in his power to rehabilitate himself andearn a living by lawful means for himself and his family. Chief Justice Mifflin stated: [11] The question I pose is this: should he now be returned to jail in order to assure that his total sentence is in the range of sentencesappropriate to his offences and conforms to the total sentence imposed on Short?

In my opinion, in this case, the answer should be nobecause to return Porter to jail would in all likelihood have the effect of sacrificing the principle of rehabilitation for the principles ofpunishment and deterrence, and I decline to do this. [54] Justice Marshall, in concurring reasons in Oates noted that the offender had shown “positive indicia that he had taken steps onthe road to his own rehabilitation”. He then stated that where these circumstances exist, “it would take exceptional counteractingcircumstances to justify any re-incarceration”.

Oates had been released on parole after serving only one-sixth of his sentence (4 months). Despite referring to the 4 months incarceration as a “triviality”, Justice Steele, also concurring, nevertheless declined to say the offendershould be returned to prison. [55] The second approach, which I will label the “re-incarceration approach” is exemplified by Roebotham (per Gushue J.A. for themajority); Downey, (per Steele J.A.); Canada (Attorney General) v. Butt, (per Steele J.A., dissenting) and R. v.

English, 2012 NLCA 64. [56] In English the Court decided the offender should be returned to prison to serve the balance of a fit sentence for an aggravatedassault and breach of a conditional sentence in which a portion of the victim’s ear was bitten off. In so doing, the Court referred to Oatesand Kane as examples of cases where because of exceptional circumstances “despite an error in sentencing, the offender may not berequired to serve the remainder of an appropriate sentence” (paragraph 33). The Court concluded there were no exceptionalcircumstances present to justify not re-incarcerating the offender.

Welsh J.A. placed emphasis on the parity principle: [33] … To accept the submission that an accused, once released, should not be returned to prison would be inconsistent with theprinciple of sentencing requiring that “a sentence should be similar to sentences imposed on similar offenders committed in similarcircumstances” (section 718.2(

b) of the Criminal Code) … [57] The divergence of the rehabilitation approach and the re-incarceration approach underline the tension that sometimes exists inreconciling the application of sentencing principles to particular circumstances. On the one hand, there is the perfectly understandablenotion that each offender should serve the sentence that is appropriate for the offence he or she has committed.

On the other is theconcern that incarceration should not be counterproductive to the rehabilitation of the offender and his or her reintegration into society asa productive citizen. [58] The parity principle is, of course, of fundamental importance in a just sentencing regime, but it must be understood and appliedin the context of the “fundamental purpose” of sentencing as outlined in s. 718 of the Code: 718.

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society … [59] To achieve the purpose of contributing to respect for the law and the maintenance of a just, peaceful and safe society, “justsanctions” should be imposed to accomplish “one or more” of the objectives of denunciation; deterrence (general and specific);segregation; rehabilitation; reparation; and responsibility-promotion and harm-acknowledgement. No single sentencing objective trumpsthe others: R. v.

Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206. Furthermore, there is no one-to-one equation of a particular type ofsentencing disposition (say, incarceration) with achievement of a particular sentencing goal (say, deterrence or denunciation). Indeed,the Supreme Court has said that deterrence and denunciation can, in appropriate cases, be achieved without incarceration even for seriousoffences: R. v.

Proulx, 2000 SCC 5 , 2000 S.C.C. 5, [2000] 1 S.C.R. 61, at paras. 22, 80-83, 102 and 114-115. [60] Thus, the question as to whether an offender should be re-incarcerated upon having his or her sentence increased on appealshould not be resolved according to presumptions as to which principle or sentencing objective should be regarded, in the abstract, ashaving primacy and whether “exceptional or special circumstances” might exist to bring about a different result; rather, each case shouldbe approached on a case-by-case basis, taking into account the fundamental purpose of sentencing (s. 718), the objectives of imposingjust sanctions (s. 718), the fundamental principle of proportionality (s. 718.1), the parity principle (s. 718.2(b)) and other applicableprinciples such as the principle of parsimony, that the offender should not be deprived of liberty if less restrictive sanctions would beappropriate in the circumstances (s. 718.2(d)) and that all reasonable available sanctions other than imprisonment should be considered(s. 718.2(e)). [61] In the end, at issue is the cost and benefit to society resulting from the decision to re-incarcerate or not.

The resolution of thisquestion involves a balancing of the purposes and principles of sentencing bearing on this issue. For example, it is clear from MarshallJ.A.’s reasons in Oates that the decision to re-incarcerate an offender may have a cost to society in that the person’s rehabilitativeprospects may be lost.

In such cases, a judge may ask whether advancement of the objectives of denunciation and deterrence as well asthe principle of parity are of greater benefit to society, in the circumstances of the particular case, than the cost of the possible loss of theoffender’s rehabilitation, bearing in mind that one sentencing objective does not trump another and that the objectives of denunciationand deterrence can sometimes be achieved otherwise than by incarceration. [62] The tension between the two approaches outlined earlier is apparent in cases in other jurisdictions as well. One of the leadingcases is R. v.

Veysey, 2006 NBCA 55, 303 N.B.R. (2d) 290, which has been cited with approval by a number of appellate courts: R. v.Smith, 2008 SKCA 20, 232 C.C.C. (3d) 176; R. v. Sooch, 2008 ABCA 186, 234 C.C.C. (3d) 99; and R. v. Sinclair, 2012 MBCA 24. InVeysey, Larlee and Robertson JJ.A., after conducting an extensive review of the case law in other Canadian jurisdictions, stated: [31] In sum, we are left with divergent approaches to the question of whether a jail sentence should be stayed on appeal incircumstances where the offender has served the sentence imposed at trial.

One approach is based on the rule that it is unjust (“harsh andoppressive”) to reincarcerate an offender who has served fully the sentence imposed at trial. We assume that the rule is a general oneand, therefore, an exceptional circumstances category exists. Hence, under this approach the onus would be on the Attorney General toestablish that reincarceration of the offender would not amount to harsh or oppressive treatment. Another approach is to accept that there

is nothing inherently unjust, harsh or oppressive in requiring an offender to serve the sentence that should [have] been imposed at first instance. This leaves us with the question of whether the rule should be absolute or provide for exceptions. The weight of authority favors recognition of a rule that provides for exceptions.

Under this approach, the onus is on the offender to establish that his or her case qualifies as an exception to the rule under the rubric of “special circumstances”. [32] We find nothing inherently harsh or oppressive in jailing a person who has served a sentence that was demonstrably unfit. The fact that the original sentence has been fully served does not, by itself, warrant special consideration. At the same time, we are left with the Supreme Court’s caution that to require an accused to serve a fit sentence after having completed an unfit one may lead to an injustice.

Thus, one must be prepared to recognize that in certain instances reincarceration could work an injustice. The difficult task is to identify the circumstances in which reincarceration would work such a result. In short: What constitutes special circumstances? Having regard to the jurisprudence discussed above, we have isolated four factors that one could reasonably consider relevant to the issue of whether a stay should be granted. This is not to suggest that the list is exhaustive. Other pertinent factors may exist.

However, for purposes of deciding this appeal, we are content to examine the following: (1) the seriousness of the offences for which the offender was convicted; (2) the elapsed time since the offender gained his or her freedom and the date the appellate court hears and decides the sentence appeal; (3) whether any delay is attributable to one of the parties; and (4) the impact of re-incarceration on the rehabilitation of the offender. [33] Any analytical framework that requires a weighing of factors is inherently problematic.

Some might argue that it is difficult to know or predict whether some factors will be, or should be, given more weight than others. This is a problem all decision-makers face. Above all, this criticism is not a valid reason for abandoning the analytical framework and replacing it with an absolute rule against the granting of stays. Finally, we caution against using, subconsciously, the reasons advanced in support of the finding that the sentence imposed at trial was demonstrably unfit as the reasons for denying the stay.

There may be some overlap, but if it were complete the result will always be the same: the stay will be denied. [ 63 ] Without adopting a presumption one way or the other, I would generally adopt the factors outlined in Veysey , but reorganize and expand them slightly in determining whether, in a particular case, there ought to be re-incarceration. [ 64 ] In applying them, it is important to keep in mind, however, that the factors are only there to assist the court in balancing the applicable purposes, objectives and principles of sentencing and that in the end the question is whether the disposition is compatible with the overall purpose of contributing to respect for the law and the maintenance of a just, peaceful and safe society.

This does not mean that not re-incarcerating is appropriate only if there are exceptional circumstances justifying that course of action; nor is re-incarceration only appropriate if there are exceptional circumstances pointing in that direction. [ 65 ] I would state the factors, non-exhaustively, as follows. 1. The seriousness of the offence . As a general rule, the more serious the offence, the more likely the offender will be re- incarcerated. Generally denunciation and deterrence of serious offences are more likely to be achieved by incarceration. But not necessarily so.

As noted above, denunciation and deterrence can be achieved without incarceration even for serious offences in some cases. Here, this Court has made it clear that trafficking in drugs is a very serious offence ( Downey , paragraph 32 ). This is especially so where the offender is a prison guard and the offence takes place in violation of the rules of the very institution he was expected to serve.

The question to be faced in this case is whether the sentencing objectives of denunciation and deterrence can only be achieved through incarceration for the balance of the sentence or whether they can be achieved by other means or in the circumstances are outweighed by other considerations. 2. Rehabilitative efforts and the impact on those efforts if re-incarceration were to be imposed. Where efforts at rehabilitation may be jeopardized by re-incarceration, it is less appropriate for the Court to re-incarcerate.

This is because rehabilitation and re-integration into society will contribute to the maintenance of a just, peaceful and safe society, the fundamental purpose of sentencing. From previous cases in this jurisdiction, the following circumstances would be relevant: whether the offender is now employed ( Porter; Warr ); whether the offender has or is taking care of young children ( Porter; J.J. ); whether the offender is pursuing further education ( Oates ); and whether the offender is addressing his addiction issues ( J.J. ). In this case, Mr. Taylor falls within all of these circumstances . 3.

Length of Time Released. The greater the time the offender has been released, the greater the likelihood that he will have reintegrated into society. As well, the longer he or she has been released, the greater will be the adjustment that the offender will have to make if he or she were to be re-incarcerated. On the other hand, if the amount of time the offender has had to work towards rehabilitation has resulted in whole or in part from delays in the appeal process engendered by the offender, he should not be allowed to profit by circumstances orchestrated by him.

In this case, by the time the appeal was heard, Mr. Taylor had been on parole for four months. In that relatively short time, he has demonstrated several positive things that indicate he is on the road to rehabilitation. As well, none of the time elapsed can be attributed to delay engendered by Mr. Taylor or his counsel. 4. Difference in the sentence imposed and that imposed following appeal. The greater the difference between the original unfit sentence and the one determined by the appellate court to be appropriate is a factor favouring possible re-incarceration.

This is because a greater disparity between the two sentences makes it harder to justify achieving the objectives of denunciation and deterrence by other means. On the other hand, where the difference is minor, this fact will generally favour not re-incarcerating because it would be harder to justify interrupting the offender’s rehabilitative efforts for the sake of a short additional period of incarceration. In the current case, the sentence is more than doubled. This is significant. 5.

Whether any measures other than re-incarceration could be imposed that would serve to denounce and deter while still promoting rehabilitation. While not an absolute requirement to justify not re-incarcerating, the fact that the objectives of denunciation and deterrence can be achieved by other means is obviously a factor favouring not re-incarcerating the offender. For

example, in Tuglavina the Court increased the length of the probation order to which the offender was subject. Wells J.A. commented: [52] … taking all of the provisions of s. 718 to 718.2 and the principles in Gladue into account, as well as the particular circumstances of this case which indicate that Mr. Tuglavina is on the road to rehabilitation, it would not be appropriate to now impose a term of imprisonment on Mr. Tuglavina. It is, however, appropriate to increase to three years the period of probation imposed by the sentencing judge.

While that is not the sentence that ought to have been imposed in the first instance, it should make some contribution to expressing denunciation, and promoting at least specific deterrence, while recognizing that it cannot be sufficient to reflect the gravity of the offence and the responsibility of the offender. To the extent that something like this can be done, it would advance the principle, found in s. 718.2(

e) of the Code, that all available sanctions other than imprisonment should be considered in every case. [ 66 ] Even without this last factor, however, the question which remains is whether re-incarceration is more compatible with the overall objectives and principles of sentencing needed to achieve respect for the law and maintenance of a just, peaceful and safe society. In fact this is the ultimate question that has to be addressed in every case.

It involves a blending and balancing of all of the factors outlined above with a view to achieving the greatest compatibility with the purposes, objectives and principles of the sentencing regime. [ 67 ] Taking all these factors into account, and considering them in light of the purpose, objectives and principles of sentencing, I have concluded that it is not necessary to re-incarcerate Mr. Taylor even though a fit sentence in this case is, as I have said, 36 months. I am satisfied that Mr.

Taylor has, in the time available to him, made not insignificant steps toward his rehabilitation and reintegration into society. If he were re-incarcerated at this point, this progress would be severely interrupted; in particular his employment and heavy equipment training would be affected. These are important activities that establish a basis for being a contributing member of society.

In the circumstances, even considering the significant increase in the sentence that should have been imposed and the seriousness of the offences, with aggravating circumstances, I am not satisfied that the objective of promoting rehabilitation should be sacrificed at this juncture in the interests of making an even stronger statement relative to deterrence and denunciation.

The sentencing objectives of denunciation and general deterrence can be accomplished here by this Court’s conclusion that the sentence is unfit and its indication of the level of sentence that should be imposed for future offences of this type. As well, the imposition of a longer period of probation, as was done in Tuglavina , can also contribute to promoting denunciation and deterrence. As to specific deterrence, given the fact that Mr. Taylor appears well on the way towards rehabilitation, this objective does not need additional emphasis.

The appropriate disposition in this case [ 68 ] Although I have concluded that the existing sentence was unfit and that it should, other things being equal, be increased to a term of 36 months, I have concluded that the interests of justice here do not justify re-incarcerating Mr. Taylor in view of the intervening circumstances. [ 69 ] In principle, there are three possible ways in which such a result can be achieved: (

i) dismiss the appeal and allow the sentence imposed by the sentencing judge to “run its course”, as was done in Kane , Porter, Warr and Oates; (ii) allow the appeal, impose the proper sentence and then stay the additional portion not already served (although it must be conceded, this option as a remedy has not been fully discussed and analyzed in the cases), see Proulx and Veysey ; or (iii) where a Tuglavina situation presents itself, vary the existing sentence, not for the purpose of imposing a further term of incarceration, but for the purpose of adding some other dimension to support countervailing sentencing objectives. [ 70 ] In this case, the third option is the most appropriate.

I would therefore allow the appeal and vary the sentence by leaving the term as it was originally imposed (while noting that in ordinary circumstances a fit sentence would be 36 months) but imposing a probationary term of three years instead of eighteen months. I would also set aside the treatment order and amend the conditions of the probation order (as extended) in accordance with my comments as set out in paragraph [45] above. CONCLUSION [ 71 ] I would allow the appeal as to sentence and set aside the sentence imposed by the sentencing judge.

While a fit sentence is 36 months incarceration, in the particular circumstances of this case the interests of justice are best served by varying the sentence by increasing the length of the probation period to 3 years but otherwise not interfering with the term of imprisonment imposed by the sentencing judge. [ 72 ] I would set aside the treatment order and vary the conditions of the three year probation order so that the order reads: Mr. Taylor shall: 1. Continue with counseling for alcohol, drug addiction and mental health issues, as recommended by his doctor or counsellors. 2. Abstain from (

i) the consumption of alcohol or other intoxicating substances, or (ii) the consumption of drugs except in accordance with a medical prescription. 3. Not associate with any person(

s) he knows to have a criminal record, with the exception of a family member, should they be in that category. ___________________________

C.W. White J.A. Dissenting Reasons by Hoegg J.A.: [73] I agree with my colleagues respecting the disposition of the Provincial Crown’s appeal concerning the legality of the medicaltreatment order for Mr. Taylor and the appropriateness of the conditions in Mr. Taylor’s probation order. I also agree with mycolleagues that the sixteen-month sentence imposed by the sentencing judge on Mr. Taylor was demonstrably unfit, and that a fitsentence for the offences Mr. Taylor committed is three years. However, I do not agree with my colleagues’ decision to decline to varyMr.

Taylor’s sentence to the one we all agree is a fit sentence, but instead, to vary it by adding a longer period of probation to the originalsentence on the basis that re-incarcerating him would not be in the interests of justice. I would allow the Crown appeal, and vary thesixteen-month sentence imposed by the trial judge to one of three years. [74] When a sentence is imposed, all principles of sentencing as stated in the Criminal Code and developed in the jurisprudence mustbe respected.

The proportionality principle which mandates that “[a] sentence must be proportionate to the gravity of the offence and thedegree of responsibility of the offender”, is fundamental. (Section 718.1 and Nasogaluak, paragraph 40). In Nasogaluak, LeBel J.explains that “whatever weight a judge may wish to accord to the [sentencing] objectives contained in

section 718 of the Criminal Codethe resulting sentence must respect the fundamental principle of proportionality.” Sentencing objectives listed in the Criminal Codewhich include rehabilitation, as well as secondary sentencing objectives like the parity principle, are also very important to oursentencing regime, which is meant to accord with the goals and values of our society. [75] At paragraph 42 of Nasogaluak, Justice LeBel describes the proportionality principle, saying that “it requires that a sentence notexceed that which is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offences.” He statesthat this rights-based, protective aspect “is counter-balanced by its alignment with the “just deserts” philosophy of sentencing”.

The latteraspect “seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns theirrole in the offence and the harm they caused.” Justice LeBel explains that “the two perspectives on proportionality… converge in asentence that both speaks out against the offence and punishes the offender no more than is necessary.” This statement of the lawgoverns the sentencing of adult offenders, whether the sentencing court is one of first instance or an appellate court.

Sentencingprinciples and considerations do not fundamentally change from one court to another. [76] A sentence appeal is taken pursuant to

section 687 of the Criminal Code. It is a review for error on the part of the sentencingjudge and/or of fitness of the sentence he or she imposed (R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, para. 90 andNasogaluak). If an appeal court allows a sentencing appeal, it varies the sentence from the one imposed at first instance, and its sentencehas the same force and effect as if it were imposed at first instance (section 687(2)). This is the regular process of sentencing appeals. [77] A sentence appeal is based on the record before the sentencing court.

Sometimes on an appeal, the offender or Crown will seekto have an appellate court consider evidence which was not before the sentencing judge and which could affect the appellate court’sdisposition of a sentence. Sometimes parties agree to provide new information to an appellate court, whether it is actually newinformation or old information that was not put before the sentencing judge. A party can also apply to introduce new evidence on appealpursuant to the provisions of the Criminal Code or Supreme Court of Newfoundland and Labrador — Court of Appeal Criminal AppealRules (2002).

Other times, information like the status of the service an offender’s sentence comes before the court without dispute as amatter of record. As well, counsel’s submissions sometimes include new information about an appellant. In this case, counsel for Mr.Taylor filed and orally submitted information concerning the activities of Mr. Taylor since he was originally sentenced. Crown counseldid not object, but stated that he did not agree that the information could support Mr.

Taylor’s request not to be re-incarcerated shouldthis Court allow the Crown appeal and increase his sentence. [78] My colleagues have considered this information concerning Mr. Taylor’s post-sentencing activities and decided that he shouldnot be re-incarcerated on the basis that re-incarceration would interfere with the progress of his rehabilitation. I cannot agree that thenew information concerning Mr.

Taylor’s post-sentencing activities justifies this Court declining to vary his sentence to the one we allagree is fit, and imposing one which in my view is not fit, so as to relieve him from being re-incarcerated. [79] In my opinion, when an appellate court finds error on the part of the sentencing judge or that the sentence imposed is unfit anddetermines the fit sentence that ought to have been imposed on the offender at first instance, that fit sentence ought to be imposed andserved, absent special circumstances.

This is simply a matter of enforcing legal decisions, which is understood and expected as part ofthe criminal law process. To my mind, it is essential to maintaining public confidence in the administration of justice. [80] The importance of the enforcement of judgments was touched on by Arbour J.A. in R. v. Farinacci (1993), (ON CA), 86 C.C.C. (3d) 32 (Ont. C.A.), a bail case. In Farinacci, Justice Arbour was tasked with deciding whether a lawful convictionand sentence ought to be stayed pending its review on appeal.

In her decision, she identified the importance of enforcing judgments,saying “Public confidence in the administration of justice requires that judgments be enforced”. This same principle, so basic it hardlyneeds to be mentioned, was also referenced in another bail case, R. v. Mapara, 2001 BCCA 508, 158 C.C.C. (3d) 312 at para. 34. [81] I view this Court’s decision — that a fit sentence for Mr. Taylor’s offences is three years — as a judgment of this Court,although I recognize that it is not the ultimate judgment in this case in the sense that it is not the sentence being imposed.

I therefore seethe starting point to be that once a fit sentence is determined, it ought to be imposed. This is what is contemplated by the statute. However, like most of life and law, absolutes are rare. I therefore accept that circumstances may arise between an original sentencinghearing and a sentencing appeal which may cause an appellate court to decline to impose the sentence it determines ought to have beenimposed by the sentencing judge.

However, such a situation would be exceptional, for it is a significant departure from the usualsentencing and appeal processes and contrary to the understanding and expectations of those directly involved in sentencings and thepublic. When a court determines the fit sentence that ought to have been imposed at first instance, whose fitness is presumed to be inaccordance with the proportionality and other sentencing principles and objectives, it ought to impose that sentence precisely because itis the fit sentence. If that fit sentence involves re-incarceration, re-incarceration should occur.

This is not a presumption for re-incarceration. Rather, it is a presumption in favour of the service of lawfully determined fit sentences. If an offender establishes aspecial circumstance which could affect his or her sentence at an appeal hearing, it must then be weighed and balanced with the

principles and objectives of sentencing and relevant jurisprudence to arrive at a fit sentence based on all of the circumstances includingthe new information. Unless such a procedure is followed, sentence appeals which take place after an offender who was serving anincarcerating sentence has been released, on parole or otherwise, could routinely become de novo sentencing hearings which focus onlyon the alleged special circumstances, and in that process, lose sight of sentencing principles.

In this case, this Court has determined thatthe original sentence was unfit and determined a fit sentence but declined to impose it because of its determination that Mr. Taylor wasprogressing with his rehabilitation and that it would be interrupted by his re-incarceration. In so deciding, their focus became Mr.Taylor’s efforts at rehabilitation and not the overall circumstances of the offences and the offender. In my opinion, evaluating anoffender’s progress in this manner, part-way through a sentence, is not within the role of an appellate court.

Such a procedureundermines the regular sentencing process, specifically the proportionality principle and other sentencing principles and objectives, aswell as respect for the law and public confidence in the administration of justice. [82] The issue of re-incarceration following an appeal has been considered by other Canadian appellate courts. In Veysey, the repeatoffender was convicted of 19 property-related offences. The New Brunswick Court of Appeal determined that Mr. Veysey’s originalsentence of seven months and two years probation was unfit, and that it should be increased by 11 months. Mr.

Veysey had served hisunfit sentence by the time his appeal was heard. The Court determined that as a general rule, an offender ought to be required to servethe sentence that should have been imposed at first instance, observing that there was “nothing inherently unjust, harsh or oppressive inrequiring an offender to serve the sentence that should have been imposed at first instance”.

The Court stated that in order for anoffender to be relieved from re-incarceration, he or she has the onus of establishing that his or her case qualifies as a “specialcircumstance”. [83] The Veysey court identified four criteria to be considered when an offender is asking an appellate court to not impose or stay theexecution of a fit sentence so as to avoid re-incarceration: 1) the seriousness of the offences; 2) the elapsed time since the offender gained his freedom and the date the sentence appeal is decided; 3) whether any delay is attributable to one of the parties; and 4) the impact of re-incarceration on the rehabilitation of the offender. [84] The Veysey court discussed the sentencing principles of denunciation and deterrence under the rubric of “the seriousness of theoffences”.

In addressing delay, the Court noted that responsibility for any delay was a consideration, and in addressing time lapses, thecourt stated the time period in question to be the time between an offender gaining his freedom and the date the sentence appeal isdecided. Finally, the court observed that the impact of re-incarceration on the rehabilitation of the offender could possibly qualify as aspecial circumstance. In the result, the Court was not satisfied that Mr.

Veysey established special circumstances by virtue of his havingcompleted service of his unfit sentence, and re-incarcerated him to serve the remainder of his fit sentence. [85] The Saskatchewan Court of Appeal also discussed re-incarceration following an appeal in Smith. In Smith, the Crown appealedthe sentence imposed on the offender at first instance, and sought an increased sentence, a fine in lieu of forfeiture for the proceeds ofcrime which the offender had spent on legal costs, and a s. 743.6 order that the offender serve one-half of his sentence before becomingeligible for parole. Mr.

Smith had been convicted of exporting and trafficking marijuana and possessing proceeds of crime whileassociated with a criminal organization and participating in “the most extensive scheme for the trafficking and exporting of marihuana”that Saskatchewan had seen to that date. The Appeal Court concluded that Mr. Smith’s original sentence was unfit, and varied it byimposing a fine of $206,782.78 in lieu of forfeiture and a s. 743.6 order that he serve one-half of his custodial sentence before becomingeligible for parole. [86] Mr.

Smith had argued that his “rehabilitation should remain a consideration [for the Court] due to post-sentence developments,and that the granting of day parole [was] evidence that he [had] made great progress toward rehabilitation
notwithstanding that as afirst time federal offender he was virtually assured of meeting the qualifications for day parole with relative ease” (paragraph 74). Inarguing that he should not be re-incarcerated, Mr. Smith relied on the Oates decision of this Court. In Oates, this Court dismissed theCrown appeal and declined to return Mr.

Oates to prison even though the Court determined that his original sentence was unfit and asentence double the one that he received at first instance ought to have been imposed. The Court considered Mr.

Oates’ post-releaseactivities and decided that his program of rehabilitation should not be interrupted by having to spend a few additional months in prison. [87] The Saskatchewan Court of Appeal agreed with the reasoning of the New Brunswick Court of Appeal in Veysey, stating that theburden is on an offender to show why he should not have to be re-incarcerated following an appeal, which he or she must do by applyingfor a stay of sentence based on “special circumstances” (paragraphs 82-84). In the result the Saskatchewan Court noted that Mr.

Smith’sargument respecting re-incarceration was not supported by a sufficient record on which to consider the issue, the appellate court’ssentence was imposed and Mr. Smith was re-incarcerated. [88] The Ontario Court of Appeal took the same approach in R. v. F.(G.C.) (2004), (ON CA), 71 O.R. (3d) 771(C.A.). In F.(G.C.), the 31 year old offender had received a 12 month conditional sentence for the serious sexual assault of two thirteen-year old girls. The Crown appealed, and the appeal court determined that a two-year custodial sentence ought to have been imposed.

The offender had completed his conditional sentence by the time the appeal was heard. The offender asked the appeal court to considerstaying the imposition of the fit sentence on the ground that re-incarceration would constitute hardship. Alternatively, if the Courtdeclined to stay the sentence, it was asked to decide what credit should be accorded the offender for his service of the 12-monthconditional sentence (paragraph 22).

The Court concluded that although incarceration is generally a hardship, this is not a sufficientreason to stay the operation of a custodial sentence which the offence requires and which ought to have been imposed by the trial judge,although it would not rule out a stay in cases of special circumstances (paragraphs 34 and 35).

The court varied the 12-month conditionalsentence to a two-years-less-a-day reformatory sentence, credited the offender on a one-for-one basis for the service of his conditionalsentence, and re-incarcerated him to serve the remaining 12 months. [89] The Alberta Court of Appeal considered the issue of re-incarceration in the context of a serious assault conviction in Sooch.

The Crown appealed Mr. Sooch’s sentence on the basis that the trial judge had erred in calculating pre-disposition credit. The Court ofAppeal agreed with the Crown, and corrected the trial judge’s sentencing error. The correction resulted in increased prison time, whichinvolved re-incarceration as the offender had been paroled in the meantime.

The majority ordered that the offender be re-incarcerated toserve the remaining 13 months of what the entire court determined to be the sentence he ought to have received at first instance, statingthe following: In our view, the return to prison would best achieve the goals of general deterrence and denunciation that are foremost in crimes of thisnature. We take the position that specific deterrence or convincing this accused to not re-offend may not necessarily be required by thetime of this appeal.

But convincing others so tempted not to commit such offences and reassuring the law-biding public that sentences arejust and suitable to the seriousness of the crime, is best met by the offender serving the remnant of his sentence in custody. Put anotherway, we are of the view that general deterrence and denunciation outweigh concerns as to the impact re-incarceration would have on theoffender's rehabilitation. [90] The Manitoba Court of Appeal took a different approach in R. v. Shalley, 2005 MBCA 50, 201 Man. R. (2d) 142. Mr.

Shalley,a first-time offender, was convicted of a major sexual assault for which he received a 90 day intermittent sentence, almost all of whichwas served by the time of the appeal. The court determined Mr. Shalley’s original sentence to be “not merely out of the appropriatesentencing range, but very far out of it”. However, the Court stayed Mr. Shalley’s fit sentence of two years less a day, saying “In thecircumstances here, the imposition and execution of a further sentence of real imprisonment at this stage would, I think, be unjust”.

Thecase does not explain why or how injustice would result from the imposition of the fit sentence, nor on what basis a stay of the fitsentence could occur. [91] In Proulx, R. v. R.N.S., 2000 SCC 7 , [2000] 1 S.C.R. 149 and R. v. R.A.R., 2000 SCC 8 , [2000] 1 S.C.R. 163,the Supreme Court of Canada touched on the issue of re-incarceration. The Supreme Court heard these sentencing appeals in the wakeof the 1996 Criminal Code amendments providing for conditional sentences, stating in Proulx that it was hearing the three cases togetherin order to set out principles for the appropriate use of conditional sentences.

Each of the cases concerned an offender who had fullyserved his conditional sentence by the time the cases were argued in the Supreme Court of Canada, and each conditional sentence was ofthe same duration as the incarcerating sentences would have been. In each case, the Court allowed the Crown appeal, and varied eachsentence from the conditional one to one of incarceration. However, also in each case the Court stayed the execution of the incarceratingsentence on the basis that the Crown was not seeking to re-incarcerate the offenders.

These cases are distinctly different from the case atbar, in that they involved fully served and non-custodial conditional sentences of the same duration as the custodial sentences imposed. [92] As noted by my colleagues in paragraphs 52 to 56, decisions from this Court on the issue of re-incarceration following appealvary in approach. They also vary in result and degree of reasoning. The two approaches identified by my colleagues are hardlyreconcilable and do not attempt to grapple one with the other, with the result that in my view neither approach can be said to be binding.

In my opinion, the decision of this Court in English per Welsh J.A. rightly identifies that an exceptional circumstance must be establishedto justify not re-incarcerating the offender when a sentence is varied on appeal. [93] In

summary, I share the view of the Ontario, Alberta, Saskatchewan and New Brunswick Courts of Appeal, and that of thisCourt in English, to the effect that in order to be relieved from being re-incarcerated to serve what an appeal court has determined to bethe sentence that ought to have been imposed at first instance, the offender has the burden of establishing a special circumstance. Mr. Taylor’s case [94] Mr. Taylor is 33 years old.

He stands convicted of five breaches of the Controlled Drugs and Substances Act for possession ofcannabis marihuana, ecstasy, oxycodone, morphine and clonazepam for the purpose of trafficking, as well as one breach of probation. He was trafficking the drugs at Her Majesty’s Penitentiary (HMP) while working there as a Correctional Officer where he had beenemployed since 2002. Mr. Taylor pleaded not guilty to the charges, but on the second day of trial, he entered a guilty plea to the breachof probation charge. A pre-sentence report was requested, and that matter was set over for sentencing.

On the third day of trial, heentered guilty pleas to the five drug charges. All charges were dealt with at the same sentencing hearing. [95] At the sentencing hearing, the pre-sentence report, a medical report from Dr. Neil Young, a report from addictions counsellorBarry Smith and four letters from members of Mr. Taylor’s family were tendered. Mr. Taylor put an additional letter from Dr. Youngbefore this Court. The Crown consented to its tendering, but challenged its contents as justifying relieving Mr. Taylor from serving a fitsentence should it involve re-incarceration. [96] Mr.

Taylor has had difficulties with alcohol and drug addictions for several years. As well, he has been diagnosed with bi-polardisorder, depression, anxiety and attention deficit disorder, for which he had been receiving treatment well before he committed theoffences before the Court. The medical information tendered on his behalf indicates that there was no connection between his addictionsand mental health issues and the commission of his offences. [97] Mr. Taylor has one prior criminal conviction.

In 2009 he was convicted of assault causing bodily harm for which he received a60-day conditional sentence and probation for one year. One of the conditions of his probation was that he was to abstain frompossessing drugs or controlled substances except in accordance with a medical prescription. His breach of this condition led to the withinconviction under

section 733.1(1)(a). [98] Mr. Taylor’s pre-sentence report dated November 15, 2011 deemed him a suitable candidate for supervised probation andcommunity service, although the author of the report opined that if the sentencing court were to order a conditional sentence, electronicmonitoring would be beneficial. As well, the report assessed Mr. Taylor “to be a high risk to become involved in further criminalactivities”. [99] On appeal, Mr. Taylor requested that he not be re-incarcerated if this Court should increase his sentence.

As this Court hasunanimously determined that three years is a fit sentence for the offences Mr. Taylor committed, I would impose that sentence unlessMr. Taylor can establish a special circumstance which would relieve him from serving it.

Is there a Special Circumstance in Mr. Taylor’s case? [ 100 ] The basis on which Mr. Taylor seeks to be relieved from serving the balance of the three-year sentence he ought to have received is that: 1) he has reunited with his son; 2) he is now employed; 3) he has been accepted into a trade program in May, 2013; 4) his parole has been without incident; 5) time has passed since he was released on parole; and 6) Mr. Taylor is continuing medical treatment for his health issues. Reunited with his son [ 101 ] The information provided to the Court by Mr. Taylor’s counsel respecting Mr.

Taylor’s relationship with his son is that Mr. Taylor was involved in an on-again off-again relationship with the mother of his son, who was born approximately three months before Mr. Taylor was sentenced. Mr. Taylor became involved in his son’s life and reports being motivated to change his behaviour so as to be a caring and providing father. There is no suggestion he was estranged from his son while in jail, although he may not have seen him during the months he was there. After Mr. Taylor was paroled, he resumed seeing his child regularly. His counsel advised at the appeal hearing that Mr.

Taylor sees his son three times per week. [ 102 ] It is normal and expected for parents to see their children and be involved in their lives, and normal and expected that “reconnections” with children would occur after a parent is released from prison. Unfortunately, many parents commit crimes for which they receive an incarcerating sentence, and being a parent does not generally exempt one from serving a custodial sentence. Many prisoners see their children while in prison, which Mr. Taylor may have done and could arrange to do if he were re-incarcerated.

Family relationships provide support to offenders, and are to be encouraged for that and other reasons. It is good that Mr. Taylor has a relationship with his son; it would be sad if he did not. However, there is nothing special about Mr. Taylor’s involvement in the parenting of his own child that would justify excusing him from serving his sentence. Employment [ 103 ] Mr. Taylor was terminated from his position at Her Majesty’s Penitentiary as a result of these convictions. He found a job at Mary Brown’s about three months after he was released on parole.

There is no doubt that his getting a job is a positive step in his rehabilitation. However, it is normal for unemployed persons to seek employment in order to support themselves and become contributing members of society, and it is expected that once released from prison, offenders like Mr. Taylor would seek and find work in order to support themselves, and otherwise for the good of themselves, their families and society. Mr. Taylor did what was expected of him, within the support of the parole system.

Accordingly, I see nothing special about his getting a job, and nothing special about the job he found in the sense of it being a unique or once-in-a-lifetime opportunity. There is no suggestion that he would not be able to resume work at Mary Brown’s or a similar establishment after he serves his fit sentence. Trade program [ 104 ] The Court was informed that Mr. Taylor has been accepted into a heavy equipment operator course beginning in May, 2013. Such a plan shows that Mr. Taylor wants to be gainfully employed in the future, and that is to be commended.

But again, planning to retrain when one loses the opportunity to work in his or her chosen occupation is normal and to be expected. There is no suggestion that he could not enroll in the same or a similar course after serving his fit sentence. I fail to see how this factor constitutes a special circumstance. Parole without incident [ 105 ] When a prisoner is paroled, it is expected that he or she will not violate his or her parole conditions. This is especially because the parole system is designed to provide guidance and support to parolees so as to facilitate their reintegration into normal society.

While a violation of parole might suggest rehabilitative failure, the fact that Mr. Taylor has not violated his parole simply demonstrates that he and the parole system are working as they should. There is nothing special about him not violating his parole; he is not supposed to violate his parole. The passage of time [ 106 ] Passages of time are necessarily involved in the prosecution of an appeal. As noted in the majority judgment, the time periods involved in the prosecution of this appeal were not out of the ordinary, and neither the

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