R. v. Sinclair, 2012 MBCA 24

Citation: R. v. Sinclair, 2012 MBCA 24 Date: 20120315 Docket: AR 08-30-06888 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Barbara M. Hamilton Mr. Justice Martin H. Freedman BETWEEN : HER MAJESTY THE QUEEN ) R. J. Wolson, Q.C. and ) C. A. Wolson Respondent ) for the Appellant ) ) E. A.

Thomson - and - ) for the Respondent ) ) Appeal heard: TERRENCE SINCLAIR ) January 16, 2012 ) (Accused) Appellant ) Judgment delivered: ) March 15, 2012 MONNIN J.A. 1 This is a unique appeal from a sentence of six years’ incarceration imposed on February 29, 2008, following a conviction for manslaughter. Although a sentence appeal, it is more akin to an application to stay the serving of the balance of an incarceratory sentence. 2 In the early morning of March 6, 2005, the accused, along with two others, viciously assaulted an individual and left him lying on a Winnipeg street.

Subsequently, the victim was inadvertently run over and dragged several feet by a passing motorist, which brought about his death. 3 Following a trial, this accused, along with a co-accused, were both found guilty of manslaughter. Both the accused and co-accused appealed their convictions and sentences. The co-accused’s conviction and six-year sentence were upheld. On July 15, 2009, the accused’s conviction appeal was granted, his conviction set aside and a new trial ordered. Because of the result of the conviction appeal, the court did not address his sentence appeal.

He was released on Judicial Interim Release (JIR) on July 16, 2009. On September 28, 2009, the Crown sought leave to appeal that decision to the Supreme Court of Canada. On April 1, 2010, leave was granted ([2009] S.C.C.A. No. 456 (QL)) and that appeal was heard on December 14, 2010. On July 28, 2011, the Supreme Court of Canada reversed this court’s decision and reinstated the accused’s conviction ( 2011 SCC 40 , [2011] 3 S.C.R. 3 ). The accused turned himself in to the court and was released on JIR. 4 The second co-accused, although a youth at the time of the offence, was sentenced in adult court.

He was sentenced to one day of incarceration plus three years of probation. In imposing the one-day sentence the sentencing judge took into consideration the fact that this co-accused had been in pre-disposition custody for 1,271 days or 3.48 years. 5 The accused, who has now served approximately 16½ months of his six-year sentence (from the time of his arrest until the court granted his appeal), has been on JIR for two and one-half years.

Following the release of the Supreme Court decision, he asked that the panel reconvene his sentence appeal to hear further submissions on his changed circumstances since the original hearing. He now seeks an order from this court staying the serving of the unserved portion of his sentence. 6 In his initial appeal hearing, the accused had argued that the sentence was harsh and excessive and that the sentencing judge had overemphasized the need for general deterrence and denunciation over the accused’s previous good character and potential for rehabilitation.

He also argued that the judge did not differentiate between himself and his co-accused. He maintains that argument. 7 The accused also now submits that it would be an injustice to have him complete his sentence as he has demonstrated his successful rehabilitation while on JIR pending the long period of time that transpired for his appeal to be heard and decided by the Supreme Court of Canada.

The accused submits that placing him back into custody would impede his rehabilitative path and be devastating for him and his family after he has demonstrated that he can be a valuable and productive member of the community. He

further submits that it would be unjust and counter-productive not only to his interests, but those of the public to interfere with hissuccessful efforts at rehabilitation. 8 The accused was 19 years of age at the time of the offence. He is now 26 years old. He has complied with all of theconditions of his JIR without incident and turned himself into the authorities as required. 9 Since the summer of 2010, the accused has been employed as a fire ranger, being part of a crew that fights forestfires, and when seasonal lay-offs have intervened, he has continued to upgrade his education.

He has had two children added to hisfamily since being convicted and is committed to his fiancée and three children. He and his family have also had to adapt to the fact thatthey were flooded out of their home in the spring of 2011 due to the devastating floods in Manitoba and on their home reserve and arestill dealing with the after-effects of their forced evacuation. 10 The accused refers to and relies on the decisions of this court in R. v. Maroti (M.), 2010 MBCA 54, 255 Man.R. (2d)115, and R. v.

McCowan (K.J.), 2010 MBCA 45, 251 Man.R. (2d) 295, as well as the principles set out in the New Brunswick decision ofR. v. Veysey (J.M.), 2006 NBCA 55, 303 N.B.R. (2d) 290, to support his request. 11 In opposition to what the accused seeks, the Crown argues that there is no principled basis on which this court caninterfere with the fit and proper sentence that was imposed. Counsel for the Crown points out, and justly so, that the matter before thecourt is not a sentencing re-hearing. It is one to determine if the sentence imposed was fit and proper.

The Crown also argues that whatthe accused is advancing, insofar as his good character and demonstrated rehabilitation, is not altogether different than what he initiallyargued at the time of his appeal hearing. The fact that he has been able to accomplish what he originally said he could achieve does notaffect the propriety of the sentence imposed. 12 As to the time lapse caused by the Supreme Court proceedings, the Crown argues that the situation is not altogetherdifferent from the case of any accused on JIR awaiting an appeal hearing before this court.

The fact that, in that circumstance, anindividual might lead an exemplary life should not and does not impact on the soundness of a sentence imposed. 13 Finally, the Crown reminds us that in dealing with the co-accused, whose background was not dissimilar to thisaccused, this very panel of the court found the sentence imposed to be within an acceptable range. That, the Crown argues, still remainsa fact. 14 Maroti was a Crown appeal of three years’ incarceration following a plea to seven counts of robbery.

Writing for thecourt, Steel J.A. conceded that a fit and proper sentence should have been one of four years’ incarceration. However, she went on tostate, and this is the passage that the accused relies on (at paras. 40-42): However, the accused was released immediately upon the conclusion of the sentencing, which took place on July 15, 2009. As of thedate of the appeal hearing, he had been in the community for six months under supervised probation. He is employed, taking somecourses in order to complete his high school education and living with his mother and father.

He continues to be on probation and will beso for some time. As has been mentioned many times in this court, most recently in R. v. McCowan (K.J.) (2010), 2010 MBCA 45 , 251 Man.R.(2d) 295; 478 W.A.C. 295; 2010 MBCA 45, at para. 24, this court may take into account changes in the condition of the accused thathave occurred between the original sentencing and the appeal hearing, whether those changes be positive or negative. See also, R. v.N.A.S., [2007 MBCA 97, 220 Man.R. (2d) 43] at paras. 27-31.

I do not think the accused or the community would be well served by removing the accused from the community at this point andreincarcerating him. Therefore, taking into account the needs of the accused, the long-term benefits to the community and the interestsof justice, I believe the sentence of three years’ concurrent on all counts which the sentencing judge arrived at in the end is a fit sentencein these circumstances.

A sentencing judge may apply faulty methodology and yet still impose a sentence that is reasonable and fit. 15 In McCowan, an appeal heard in December of 2009 and referred to in Maroti, the accused pled guilty to one count ofbreak and enter and commit aggravated assault arising from an incident that occurred in 2006. Having served 33 months of pre-sentencecustody, he was given credit for an effective sentence of five and one-half years’ imprisonment and was sentenced to three years’probation.

Given his pre-sentence credit of 66 months, the judge accepted that he had served the incarceratory portion of his sentence. The period of probation included counselling and community service components. The Crown sought leave to appeal, arguing thesentence imposed was unfit. 16 In denying the appeal, Steel J.A., with the concurrence of Hamilton J.A., said (at paras. 24-26): Finally, this court has stated on several occasions that, on appeal, it will consider material events that have occurred since the date ofsentencing.

While the conduct of the accused and the occurrence of new events after sentencing may be taken into account, the weightgiven to it may vary “because, as has been pointed out, an offender would be stupid not to behave in an exemplary fashion pending anappeal” (Clayton C. Ruby et al., Sentencing, 7th Ed. (Markham: LexisNexis Canada Inc., 2008), at 161). Nonetheless, our obligation isto assess the fitness of the sentence at the time when the appeal is heard. See R. v. N.A.S. (2007), 2007 MBCA 97 , 220

Man.R. (2d) 43 ; 407 W.A.C. 43; 2007 MBCA 97, at paras. 27-31. Since the date of sentencing, the accused has successfully completed five months of a residential addictions program at the House of the Risen Son. He has performed the 200 hours of community service work as ordered by the sentencing judge. He has attended and completed an anger management course. His addictions assessment at AFM indicated that no further rehabilitation was required. He has moved back to Steinbach and is now operating his own contracting company.

With the consent of his ex-wife, he has custody of his 16-year-old stepdaughter, who, his ex-wife writes in her letter of recommendation and support, “really needs [her dad] in her life”. His conduct was completely unacceptable, and the victim will have to live with its consequences for the rest of his life. But the evidence indicates that specific deterrence is not necessary for this individual. He has been punished and held accountable by an effective sentence of five and one-half years, and he will continue on supervised probation for the next two years. He has rebuilt a life for himself and his children.

In these circumstances, the long-term protection of the public would best take place by allowing the accused to continue his rehabilitation and reintegration into society. The interests of justice would not be served by sending him back to prison at this point. 17 Veysey is a decision of the New Brunswick Court of Appeal and deals with an accused who had served his sentence when that court decided that a greater period of incarceration should have been imposed.

The accused concedes that the fact situation in Veysey is different than what is before this court, but asks us to draw an analogy between the principles established in that case - a stay of execution case - and the case at bar. Larlee and Robertson JJ.A. set out a principled approach to govern a stay of execution of what an appellate court determines on appeal would be a fit sentence. They wrote as follows (at para. 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 reincarceration on the rehabilitation of the offender. [emphasis added] 18 The Hon.

Gilles Renaud The Sentencing Code of Canada : Principles and Objectives (Markham: LexisNexis Canada Inc., 2009) , in dealing with the issue of reincarceration subsequent to a period of release, provides, in general terms, a useful review of the considerations facing a court.

He writes (at paras. 5.96-5.97, 5.100-5.101, 5.114): As a broad, general statement of law, the principle of sentencing which directs courts to be chary of returning an offender to a custodial facility after a lengthy period of time within the community, lest the rehabilitative efforts displayed and the progress achieved towards social re-integration be lost, is exercised only at the appellate level. In practice, an offender will have been tried and convicted after a period of time and then incarcerated subsequently to then gain release pending appeal.

It is possible as well that the offender was detained initially for an important period of time prior to being admitted to bail or, as happens, was detained until sentence and then released either on probation or subject to a conditional sentence order which is susceptible to being reversed on appeal for failing to assign adequate weight to the safety of the community. In the interim, the offender may well have spent a number of years seeking to overcome addiction, for example, or have made great strides in pursuing an education or in establishing a family or success in employment endeavours.

In such circumstances, it is often thought by appeal court judges that it is counter-productive to sacrifice the gains that have been achieved in terms of rehabilitation in order to foster the principles of denunciation and general deterrence by means of incarceration. Hence, the principle is chiefly understood to be available to an appellate court to temper the rigours of sentencing doctrine in meritorious instances in which evident rehabilitative efforts and achievement are at risk of being undermined significantly if imprisonment is visited upon the offender.

Notwithstanding the foregoing emphasis on the appellate level of sentencing, it is suggested that the principle is still available to guidesentencing courts in the application of the general principle directing restraint in recourse to incarceration which is embodied andexpressed at s. 718.2(

d) and (

e) of the Criminal Code, if two conditions precedent are met: (

i) the passage of time between the offending and the date of decision is relatively important so as to justify a finding that the absenceof intervening offending represents a firm resolve to act responsibly; and, more commonly, (ii) the offender has achieved positive steps towards self-rehabilitation, quite apart from being crime-free, in the intervening period andthat it would be detrimental to the offender’s immediate reformation and, it stands to reason, the long-term well being of the community,to select imprisonment at that late date.

In many instances, an individualized sentence is selected in which the prospects of freeing an offender from a life of crime by promotingrehabilitation is of paramount importance. On close analysis, the decision to grant a measure of leniency is grounded upon a sense ofjustice or, expressed otherwise, a desire to avoid injustice. 19 Guidance can also be gained from the decision of the Ontario Court of Appeal in R. v. Hamilton (2004), (ON CA), 72 O.R. (3d) 1. The court was dealing with a Crown appeal from a conditional sentence on charges of importingcocaine.

In reasons that dealt with a number of sentencing issues, Doherty J.A. set out in the following passage elements that areimportant considerations in the appeal before us (at paras. 165-66): The ultimate question is, however, should these respondents be sent to jail now? They have served close to seventeen months of theirconditional sentences. There is no suggestion that they have not complied with the terms of those sentences or that they have committedany further offences.

This court has recognized both the need to give offenders credit for conditional sentences being served pendingappeal and the added hardship occasioned by imposing sentences of imprisonment on appeal. The hardship is readily apparent in thesecases. Had the respondents received the appropriate sentences at trial, they would have been released from custody on parole manymonths ago, and this sad episode in their lives would have been a bad memory by now. This was a significant appeal for the administration of justice. The decision of the trial judge raised important issues that required theattention of this court.

Appeals take time. Lives go on. Things change. These human realities cannot be ignored when the Court ofAppeal is called upon to impose sentences well after the event. The administration of justice would not be served by incarcerating therespondents for a few months at this time. They have served significant, albeit, inadequate sentences. To impose now, what would havebeen a fit sentence at trial, would work an undue hardship on the respondents.

The administration of justice is best served by allowingthe respondents to complete their conditional sentences. 20 Had this panel dealt with the issue of sentence during the course of the accused’s initial hearing, I have little doubt thatthe sentence imposed would have been assessed as being fit and proper.

Notwithstanding the accused’s then prospect for rehabilitationand the fact that he was a first offender, the judge did not err in principle in considering the need for deterrence and denunciation inpriority to the accused’s rehabilitation. 21 As the cases and the text to which I have referred earlier in these reasons demonstrate, there are times when the servingof a fit and proper sentence can and should be dispensed with and that such a disposition is in the interests of justice.

The decision to staythe execution of an otherwise fit and proper sentence will be driven by the presence of special or exceptional circumstances. I am of theview that such is the case here. 22 As a result of the appeal to the Supreme Court of Canada and the passage of time necessitated by that process,circumstances have changed since the imposition of the original sentence. The accused has served 16½ months of that sentence.

Because of his youthfulness and status as a first-time offender, he was quickly approaching the time where he would have been eligiblefor parole had his conviction and sentence been upheld by this court. Given his excellent pre-sentence report, I have little doubt that hewould have qualified for that early release. 23 The accused has now been dealing with his actions and the repercussions of that senseless act for almost seven years. Since the time of the offence, the accused has been remorseful and has led a productive life in his community.

In a community of highunemployment and limited education he has managed in uncertain times to seek and maintain employment and to upgrade his education,to say nothing of his role as a father of three children. While out on JIR for the last two and one-half years, he has rebuilt a life forhimself, his fiancée and three children. He has been punished, has spent time in jail, and if sent back, would be eligible for parole withina matter of months, not years. The interests of justice would not be well served by sending him back to prison at this point.

To do sowould, in my view, work an injustice, even in a case where the offence was as serious as his was. 24 In the present case, I consider it to be counter-productive to sacrifice the gains that have been achieved in terms ofrehabilitation to “foster the principles of denunciation and general deterrence by means of incarceration” (Renaud at para. 5.97).

25 Therefore, for the above-stated reasons, and in light of the s pecial circumstances, I find this to be a proper case to stay the execution of the otherwise proper sentence. J.A. I agree: J.A. I agree: J.A.