R. v. Constant, 2013 MBCA 97

Citation: R. v. Constant, 2013 MBCA 97 Date: 20131025 Docket: AR 13-30-07936 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Freda M. Steel Madam Justice Holly C. Beard BETWEEN : HER MAJESTY THE QUEEN ) B. F. Bonney ) for the Appellant Respondent ) ) N. P.

Steen - and - ) for the Respondent ) TIMOTHY DWAYNE CONSTANT ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) October 25, 2013 CHARTIER C.J.M. (for the Court): [ 1 ] The accused appeals his sentence after pleading guilty to three counts of breaking and entering into a dwelling house. [ 2 ] The sentencing judge found that the three offences, committed in 2004, 2005 and 2008, were sufficiently distinct and separate to warrant consecutive sentences. He imposed individual sentences for each offence: 24, 36 and 30 months of imprisonment respectively.

At the time of sentencing, the accused had spent 11.5 months in pre-sentence custody. The sentencing judge credited the accused for 12 months of pre-sentence custody. He then split the 12-month credit into three and applied a credit of four months pre- sentence custody against each of the three sentences. The actual sentence imposed for each offence was therefore 20, 32 and 26 months. He then totalled the three sentences (78 months), took the last look to address totality-principle concerns and reduced each sentence by 50 per cent.

As a result, the sentence imposed for each offence was 10, 16 and 13 months respectively for a total of 39 months. [ 3 ] The accused appeals his sentence, arguing that the sentencing judge erred by failing to credit the accused on a 2:1 basis regarding the pre-sentence custody and for crediting the pre-sentence custody before addressing totality-principle concerns. [ 4 ] We agree that the sentencing judge should have applied the pre-sentence credit only after he addressed totality- principle concerns as this court explained in R. v. Wozny (C.P.) , 2010 MBCA 115 at paras. 96-100 , 262 Man.R. (2d) 75 .

As for the 2:1 issue, the question of the retrospectivity of the Truth in Sentencing Act (the Act ), in situations similar to this case (where the accused committed offences before the Act came into force, but is only charged with them after the Act came into force) is a live issue before the Supreme Court of Canada ( R. v. Clarke , 2013 ONCA 7 , 115 O.R. (3d) 75 , leave to appeal to S.C.C. granted, [2013] S.C.C.A. No. 322 (QL)).

Given that we find that the sentencing judge already erred in his method of calculating the sentence, we do not need to address this issue. [ 5 ] In light of the error on the application of the pre-sentence credit, it remains open to this court to assess the fitness of the sentence afresh. There are many judgment calls that come into play when imposing a sentence: should a sentence be reduced to address totality concerns and, if so, by what amount and/or how much credit is to be given for pre-sentence custody?

Had the sentencing judge been inclined to have credited the accused on a 2:1 basis, instead of 1:1, he may only have imposed a “last look” reduction of 25 per cent instead of 50 per cent.

However, that would be speculation on our part, as we do not know the reasoning that drove his decisions because he did not give any reasons to explain his decisions on these issues. [ 6 ] What we do know, however, is that, in the end, and despite the error, we are all of the view that the end-total sentence of three years and three months imposed by the sentencing judge for the three break and enters is appropriate in light of the accused’s lengthy related record, his age (42), his lack of remorse, the fact that he was found to be a high risk to reoffend and the generally

unfavorable pre-sentence report. Moreover, we are satisfied that this sentence reflects the principles mandated by R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. [7] In the result, leave to appeal the sentence is granted, but the appeal is dismissed. C.J.M. J.A. J.A.