R. v. Lea, 2010 MBCA 37

Citation: R. v. Lea, 2010 MBCA 37 Date: 20100426 Docket: AR 09-30-07170 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Barbara M. Hamilton Mr. Justice Martin H. Freedman BETWEEN : ) A. Y. Kotler HER MAJESTY THE QUEEN ) for the Appellant ) Appellant ) T. E. Bourcier ) for the Respondent - and - ) ) Appeal heard: JUSTIN SCOTT LEA ) October 20, 2009 ) (Accused) Respondent ) Judgment delivered: ) April 26, 2010 MONNIN J.A. 1 This is a Crown appeal of sentences imposed for two counts of robbery and one of mischief.

On the robbery charges, the sentence imposed was one of two years less a day to be served conditionally. The sentence for the mischief was time served which was 20 days thereby being an effective sentence of 40 days. 2 The Crown appeals that on the basis of the totality of the sentences rendered, the conditional sentence was illegal and that the sentence imposed for the robberies was unfit. 3 On July 25 and 26, 2007, in the City of Winnipeg, the respondent robbed two convenience stores while on a cocaine binge.

He was arrested shortly after the July 26, 2007 robbery, and at the time of arrest, voluntarily and without prompting, informed the arresting officers of the robbery he had committed the previous day. 4 He was released on bail on July 27, 2007. 5 On February 8, 2008, the respondent was arrested for his involvement in a domestic dispute. This incident occurred in the respondent’s home town of Riverton. He was released on bail on February 21, 2008.

This matter eventually resulted in the guilty plea to the charge of mischief. 6 On February 4, 2009, the date set for the preliminary inquiry with respect to both robbery charges, the respondent pled guilty to those two charges. The matters were set over to May 5, 2009 for sentencing. In order to expedite the disposition of the Riverton matter, the Crown and the respondent agreed that it would be transferred to Winnipeg from Arborg, Manitoba, which is the Provincial Court seat for Riverton.

The Crown was prepared to accept a plea of guilty to mischief in order to dispose of what I refer to as the Riverton incident. 7 At the sentencing hearing, counsel for the Crown submitted that a penitentiary term should be imposed for the robberies. In its submissions, the Crown was silent as to the disposition of the mischief charge until prompted by the sentencing judge. Counsel then replied that the mischief charge was clearly not a serious matter and that the time spent in custody following his arrest on February 8, 2008, would more than suffice as a fit sentence. Counsel for the Crown added further: ….

But for the fact that he was on a release for a serious offence of violence when he re-offended, the Crown probably wouldn’t be suggesting custody at all. But I think in the circumstances it would be appropriate to record it at least as an offence that resulted in a term of incarceration.

8 On the robbery offences, counsel for the respondent argued that a conditional sentence would be an appropriate sentence for the court to impose. Nothing was said with respect to the mischief charge. 9 The sentencing judge eventually imposed a conditional sentence of two years less a day with respect to the robbery charges. In thorough and extensive reasons she dealt with the facts of the robberies, counsel’s submissions, the law and her reasoning for the sentence she imposed, including detailed conditions.

She then went on to say: In terms of the mischief offence I understand you did spend 20 days in custody earlier, which would, giving you a double credit, be equivalent to a 40 day sentence. Given your record and the circumstances that you were on bail for the robberies at the time I’m satisfied that that is an appropriate sentence.

The sentence on that will be to note the 20 days time spent in custody and your court appearance today. 10 As stated earlier in these reasons, the Crown takes the position that the sentences imposed for all offences are in excess of two years less a day, which they clearly are, and cannot be considered independently one from the other even though they derive from incidents that are in fact totally independent one from the other. The Crown argues that the totality of time imposed, in what it argues is one sentence and not two, offends against the provisions of s. 742.1 (

a) of the Criminal Code which at the time of these offences provided: Imposing of Condition Sentence 742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court (

a) imposes a sentence of imprisonment of less than two years, and (

b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under

section 742.3. 11 For the sake of completeness, although not argued before us, I also refer to s. 139 of the Corrections and Conditional Release Act , which reads as follows: Additional sentences 139(1) Where a person who is subject to a sentence that has not expired receives an additional sentence, the person is, for the purposes of the Criminal Code , the Prisons and Reformatories Act and this Act, deemed to have been sentenced to one sentence commencing at the beginning of the first of those sentences to be served and ending on the expiration of the last of them to be served. 12 Counsel for the respondent argues that s. 742.1(

a) of the Code should not be in issue in the circumstances of this case as the matters before the sentencing judge were not interrelated and were in fact two separate and distinct matters that were dealt with as such by counsel for the Crown and the respondent as well as the sentencing judge. Were it not for the sake of expediency, counsel argues, the matters would not have been disposed of at the same time and therefore, what the Crown now claims is an illegal sentence, is an issue that would not exist. 13 At first blush I considered the Crown’s position on this matter to be incorrect and moreso short-sighted.

Acknowledging the Crown’s position as being correct could, in many cases, prevent doing exactly what was done in the circumstances of this case, and that is to clear up all outstanding matters that an accused might be facing. Instead of having repeated court appearances involving the same actors, often in different locales, all matters could efficiently and expeditiously be disposed of at one time. 14 However, existing and recent jurisprudence appears to substantiate the Crown’s position.

A reading of those cases might even lead one to come to the conclusion that even if the respondent in the present case had been sentenced in two separate proceedings and the sentences imposed were as in the case at bar, those sentences might also be considered to be illegal. 15 In R. v. Akkuardjuk (T.) , 2007 NUCA 6 , 422 A.R. 244 , the Crown appealed sentences imposed upon convictions of the accused from three separate, although somewhat related, incidents because all of the incidents involved the accused’s common law wife. In finding the sentence to be illegal, the Nunavut Court of Appeal relied on R. v.

Fice , 2005 SCC 32 , [2005] 1 S.C.R. 742 . The relevant

extracts from that decision provide as follows (at paras. 8-9, 11): A key difficulty with the case is that the trial judge imposed terms of actual imprisonment for the counts arising from the events ofSeptember 4, 2005, and January 29, 2006. The total sentence for these offences was eighteen months imprisonment. The disposition under appeal concerns the incidents of February 24, 2006. The conditional sentence imposed there was two years lessone day, to run consecutively to the two sentences resulting from the earlier sets of offences.

In our view, that disposition wasinconsistent with the policy and terms of s. 742.1 of the Criminal Code. Furthermore, the total sentence imposed was 18 months imprisonment followed by a conditional sentence of two years less one day.Despite the fact that the trial judge applied the respondent’s pretrial custody on a two for one basis against the 18 months to reduce it to aform of “time served”, the fact remains that the total sentence imposed exceeded two years. In light of R. v. Fice (L.), 2005 SCC 32, [2005] 1 S.C.R. 742, [2005] S.C.J.

No. 30 [(QL)]; 333 N.R. 243; 198 O.A.C. 146, at paras. 16 to 18 and para. 29, suchcircumstances do not permit a conditional sentence. 16 R. v. Lyver, 2007 ABCA 369, 229 C.C.C. (3d) 535, was a Crown appeal from the imposition of a conditional sentence of twoyears less a day for trafficking in cocaine. The sentence imposed was to be served consecutive to a penitentiary sentence from aconviction in Newfoundland on a similar offence. The facts were set out as follows (at paras. 3-4): The respondent attempted to waive the Newfoundland charges but was unable to do so.

Instead, he was transported to Newfoundland,convicted and sentenced on that charge to three years imprisonment. He served six months and was released on parole, which hecontinues to serve today. In September 2006, the respondent returned to Calgary and pleaded guilty to the Calgary charge. The Crown sought a sentence in therange of three to four years concurrent to the Newfoundland sentence.

The defence sought a conditional sentence of less than two years.The sentencing judge imposed a conditional sentence consecutive to the Newfoundland sentence. 17 The Alberta Court of Appeal disposed of the appeal by setting aside the sentence imposed. It said (at paras. 5-6): With respect, the sentencing judge erred when she imposed the conditional sentence of two years less a day consecutive to the remnant ofthe three-year sentence the appellant was then serving.

The jurisprudence is clear that a conditional sentence may be imposed to beserved consecutively to another sentence, but only if the aggregate sentence is less than two years. A conditional sentence is not anoption when the total sentence to be served exceeds two years. To illustrate, in R. v. Ploumis (2000), (ON CA), 140 O.A.C. 88, 150 C.C.C. (3d) 424, leave to appeal to S.C.C.refused, [2001] 1 S.C.R. xvii, 153 C.C.C. (3d) vi, the sentencing judge imposed a conditional sentence of two years less a day, to beserved consecutive to an eight month custodial sentence.

The Court of Appeal, relying on its earlier decision in R. v. Alfred (1998), (ON CA), 105 O.A.C. 373, 122 C.C.C. (3d) 213, affirmed that the sentencing judge erred in principle by imposing aconditional sentence as part of a global sentence of 30 months. The court distinguished the case of R. v.

R.A.R., 2000 SCC 8, [2000] 1S.C.R. 163, 140 C.C.C. (3d) 523, where the Supreme Court upheld a blended sentence — custodial and conditional sentence — becausethe total sentence there did not exceed two years less one day. 18 The Alberta Court of Appeal also referred to decisions from this court in coming to the conclusion that it did (at paras. 7-9): Alfred and Ploumis were followed by the Manitoba Court of Appeal in R. v. MacIver, 2000 MBCA 76 , 2000 MBCA 82, 150Man.

R. (2d) 123, where the Chief Justice, writing for the court, noted at paras. 26 and 27: Careful attention to the wording of s. 742.1, together with the authorities that have considered it (see in particular R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 and R. v. Proulx [2000 SCC 5, [2000] 1 S.C.R. 61]); lead inevitably to the conclusion that whatParliament had in mind in enacting the provision was that a conditional sentence would be available only if the totality of the sentencesof imprisonment was less than two years. ...

To permit conditional sentences to be imposed of more than two years by utilitizing the device of consecutive sentences is contrary to the“spirit” of the legislation (Alfred at para. 6). [Emphasis added] The Manitoba Court of Appeal again addressed this issue in R. v. Frechette, 2001 MBCA 66, 156 Man. R. (2d) 104, 154 C.C.C. (3d)191, where it considered the legality of an 18-month conditional sentence to be served consecutive to an earlier 15-month conditionalsentence imposed by another judge.

The court relied on s. 139(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, aswell as its previous decision in MacIver, to conclude that the resulting global sentence, a conditional sentence of 33 months, was illegaland that conditional sentences could not be “stacked” to exceed 24 months. Later, in R. v. Pakoo, 2004 MBCA 157, 190 Man.

R. (2d) 133, 198 C.C.C. (3d) 122, at para. 22, the court observed that a conditionalsentence could be added to a custodial sentence only where “the aggregate sentences for all offences did not exceed two years less oneday.” 19 On the basis of these decisions, I can only conclude that the Crown’s argument has merit and that the totality of sentencesimposed caused the conditional sentence to become an illegal sentence. 20 Because of this error in law by the sentencing judge, it becomes open to this court to consider afresh what is a fit sentence. 21 The Crown’s second argument in this appeal and, in its view, its primary ground of appeal, was that the conditional sentenceimposed for the robbery convictions was unfit and that a penitentiary term of imprisonment was the proper sentence to have beenimposed.

It relies on this court’s decision in R. v. Lagimodiere (S.M.E.), 2008 MBCA 137, 231 Man.R. (2d) 261, to support its positionand specifically the following words from Scott C.J.M. (at para. 25): In the absence of exceptional circumstances (not present here), a sentence permitting consideration of a conditional sentence - that is tosay, one not exceeding two years less a day - is inappropriate for multiple offences of robbery, where the sentencing objectives ofdenunciation and deterrence are especially pressing. All the more so when the accused has demonstrated an inability to follow courtorders.

Here the respondent had two prior breach convictions and pled guilty to four others while out on bail on these robbery charges. To compound matters, she was arrested for breaching the conditional sentence order a mere two weeks after it was imposed. 22 The Crown argues that there are no exceptional circumstances that exist to have warranted a sentence of less than two years’incarceration. 23 The facts of this case and those in Lagimodiere are sufficiently distinguishable that I do not consider myself bound by whatthe court, of which I was a member, stated in Lagimodiere.

That case dealt with nine robberies, three attempted robberies and fourbreaches of court orders. 24 In the case at bar, save for the matter of totality, the sentencing judge did not commit any error in principle when consideringthe sentence for the two robberies. Nor did she fail to consider or overemphasize an appropriate factor. She crafted a sentence that, inmy view, fit the circumstances of the offences and those of the respondent.

The sentence imposed was within a range of sentences thatthis court has imposed in other cases. 25 The sentencing judge was clearly of the view that the respondent and the community would not be well served if therespondent were to serve his sentence within an institution and that was the type of overall sentence she attempted to craft. I am notprepared to fault her for that because I believe she was right in doing so. It is noteworthy that the respondent has now served almost 11months of that sentence without any re-involvement.

The issue for me is then how to achieve what I consider is a proper result in theface of s. 742.1(a). 26 I must initially point out that “time served” is not a sentencing option available to a sentencing judge under the Code. Theamount of time served can inform a decision to impose a sentence of one day when warranted by the circumstances, but it does notpermit such a sentence to in fact be equivalent to the amount of time actually served.

Therefore, the sentence actually imposed by thesentencing judge for the charge of mischief was not 20 or 40 days but was one day, making the total sentence imposed as being one oftwo years. See R. v. G.A.T., 2007 MBCA 88, 214 Man.R. (2d) 272. See also R. v.

Mizen, 2009 BCCA 253, 244 C.C.C. (3d) 395. 27 What is clear in this case is that the sentencing judge was of the view that the disposition that best answered the needs of therespondent and the long-term benefits to the community and the interests of justice was the imposition of a sentence of a length thatcould be served in the community under appropriate conditions.

As noted above by the fact that the respondent has been involvement-free to date, it would appear that the judge was correct in her assessment. 28 In a case similar to the one at bar, namely dealing with an illegal conditional sentence, the Court of Appeal of Ontarioreduced a conditional sentence from two years less one day to 16 months less one day, so that the total sentence did not exceed twoyears. See R. v. Ploumis (2000), (ON CA), 150 C.C.C. (3d) 424, leave to appeal denied [2001] S.C.C.A. No. 69(QL).

29 In the same vein, I would therefore allow the appeal and substitute for the conditional sentence imposed for the two robberies of two years less a day, a conditional sentence of 23 months, resulting in a total sentence of 23 months plus one day. J.A. I agree: J.A. I agree: J.A.