R v Park, 2016 MBCA 107

Citation: R v Park, 2016 MBCA 107 Date: 20161110 Docket: AR16-30-08532 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner BETWEEN: HER MAJESTY THE QUEEN ) ) J. L. Ostapiw Respondent ) for the Appellant ) ) C. R. Savage- and - ) for the Respondent ) ) Appeal heard:TREVOR HOWARD PARK ) September 12, 2016 ) (Accused) Appellant ) Judgment delivered: ) November 10, 2016 STEEL JA [1] This is an application for leave to appeal and appeal of a sentence of ten months for the offence of being unlawfully atlarge.

The sentence was consecutive to a previous sentence for driving impaired causing death, and also consecutive to a sentence fordrug possession. [2] The accused argues that the judge erred in failing to consider the totality principle, the Gladue factors (R v Gladue, (SCC), [1999] 1 SCR 688), the principle of parity and, in any event, that the sentence imposed was harsh andexcessive. Facts [3] The accused was on parole with respect to an eight-year sentence imposed in 2008 for driving impaired causing deathand driving while disqualified.

In August 2015, while in the community on statutory release, he failed to return to his assigned halfwayhouse in time for his curfew. A warrant for his arrest was issued and he was arrested 55 days later. When arrested, he was in possessionof drugs, to which he pleaded guilty and received a sentence of 30 days to be served consecutive to the sentence he had returned toserving for the driving impaired causing death conviction. [4] The accused pleaded guilty to being unlawfully at large.

The Crown sought a sentence of 12 months’ custodyconsecutive, while defence counsel sought a consecutive sentence of 30-60 days’ custody. The judge imposed a sentence of 10 months’custody, to be served consecutive to the two previous sentences that the accused was already serving. Analysis and Decision [5] The standard of review in sentencing decisions is well-known. This Court should not intervene unless the judgecommitted an error in principle or the sentence is demonstrably unfit.

An error in principle includes failing to consider a relevant factor,taking into account an irrelevant factor, failing to give sufficient weight to a relevant factor or overemphasizing an appropriate factor. “Demonstrably unfit” in the sentencing context refers to a sentence falling outside the acceptable range of sentences under similar

circumstances. [6] If an error in principle has occurred, the appellate court need not extend deference to the original sentence. Theappellate court can look at the matter from a fresh perspective and impose the sentence that it deems appropriate in the circumstances orthe appellate court may find that, notwithstanding the error in principle, the original sentence is still fit and uphold that sentence. Minorerrors of principle will not justify intervention. It is only where the error has had a material impact on the sentence imposed that theappellate court should intervene.

See R v Ruizfuentes (HS), 2010 MBCA 90 at para 7, 258 ManR (2d) 220; R v Sidwell (KA), 2015MBCA 56 at paras 12-13, 319 ManR (2d) 144; and R v Lacasse, 2015 SCC 64 at para 11, [2015] 3 SCR 1089. The Totality Principle [7] This Court recently discussed the totality principle in Sidwell (at paras 15-16): A foundational principle of the Canadian sentencing regime is the principle of proportionality. See R. v. Ipeelee (M.), 2012 SCC 13, [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, at para. 37.

As the CriminalCode (the Code) indicates in s. 718.1, a sentence must be proportionate to the gravity of the offence and the degree of responsibility ofthe offender. This principle is based upon the fundamental notion that the degree of punishment must reflect the gravity of the offenceand the moral blameworthiness of the offender. Otherwise, society will have no confidence in the law or the fairness and rationality ofthe legal system. See Johnson, at para. 15 [R v Johnson (F), 2012 ONCA 339, 291 OAC 350].

An important component of the principle of proportionality is the principle of totality, which is embedded in s. 718.2(

c) of the Code. Where consecutive sentences are imposed, a court shall also take into consideration whether the cumulative sentence is unduly long orharsh. A judge must ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. Theseprinciples were embedded in the common law even prior to the enactment of s. 718.2(c). See C.A.M., at para. 42 [R v M (CA), (SCC), [1996] 1 SCR 500]. [8] Both

section 718.2(

c) of the Criminal Code (the Code) and Lamer CJ’s consideration of the totality principle in R v M(CA), (SCC), [1996] 1 SCR 500, suggests that the principle is only applicable when there is a “combined sentence” of“consecutive sentences . . . imposed” (at

section 718.2(c)) or when there is a cumulative sentence rendered by “a sentencing judge whoorders an offender to serve consecutive sentences” (M (CA) at para 42). If a sentence being imposed is to be served consecutive toanother sentence, then the sentencing judge is required to take a “last look” back at the other sentence and make any appropriateadjustments so that the consecutive sentence is not unduly crushing to the offender. [9] The Crown acknowledges in its factum that totality was not specifically discussed by either counsel or by the judge.

The accused argues that the Court should have considered the totality principle, specifically considering not only the unexpired sentenceof the accused in relation to the eight-year sentence for driving impaired causing death and the 30-day sentence for drug possession, butarguing that the totality principle required the Court to take into account the entire eight-year sentence, most of which had already beenserved by the accused. [10] The jurisprudence confirms that, in applying the totality principle, the court can and should look to the unexpiredsentence still to be served by the accused (see R v Johnson (F), 2012 ONCA 339, 291 OAC 350), but only to the unexpired portion.

Thecases cited by the accused refer, not to the entire previous sentence but rather, to the unexpired portion of a previous sentence still to beserved by the accused. See R v Saran (JS) (1996), (MB CA), 113 ManR (2d) 205 (CA). The unexpired portion of aprior sentence can address some of the public protection and rehabilitation concerns of the sentencing court with respect to an offenderbeing sentenced for a new offence. Where the prior sentence has been completely served, however, such concerns can only be met by asentence for the current offence.

Thus, the rationale for applying the totality principle when there is still a portion of a prior sentence tobe served does not apply if that prior sentence has been served in full. That is the difference between this case and Sidwell. In Sidwell,the previous sentence had already expired and this Court indicated that the principle of totality did not apply where the previous sentencehad already expired.

See R v James (GM), 2013 MBCA 14, 288 ManR (2d) 269. [11] We do not agree with the Crown’s argument that the consideration of the unexpired sentence is merely one of thefactors to be considered by the Court in the initial determination of the appropriate sentence and therefore does not engage a “last look”. In Johnson, Blair JA for the Ontario Court of Appeal, commented upon the Code sentencing principles and how they apply with respectto sentencing an accused when the accused is still serving the remainder of a previous sentence.

He stated (at para 19): There are at least two types of situation where the principle of totality in the context of consecutive sentences may arise. The first iswhere a single judge must deal with a series of offences, some of which require the imposition of consecutive sentences having regard tothe criteria for such sentences. A second – which is the case here – concerns a situation where a sentencing judge must impose a fitsentence on an offender convicted of one or more offences where that offender is at the same time serving the remainder of a sentencefor a previous conviction or convictions.

Section 718.2(

c) of the Criminal Code draws no distinction between these two types of scenario, and this Court and others haverecognized that the totality principle applies where the offender is serving the remainder of a previous sentence.

[12] The Court in Johnson relied in part upon this Court’s decision in Saran, which likewise determined that a court wasentitled to take into account the fact that the sentence currently being imposed would be consecutive to the unfinished portion of aprevious sentence. See Saran at para 16. [13] In Saran, the Court relied upon the British Columbia Court of Appeal’s decision in R v Bueger (BK) (1994), (BC CA), 48 BCAC 266, in which Donald JA, for the Court, discussed how the unexpired portion of a previous sentence canbe relevant to the totality principle.

He stated (at para 21): [H]owever, I think that a sentencing court must appreciate the totality of what will result from the commission of the offense. Theoverall length of custody bears upon at least two sentencing factors, the protection of the public and rehabilitation. A lesser sentence onthe current offense may suffice with the knowledge that the accused will be isolated from society because of parole revocation on aprevious sentence.

Also, the additional time in custody on account of revocation may allow for the completion of programs forrehabilitation and skill training and thereby lessen the requirement for what would otherwise be a longer sentence. [14] However, I also agree with many of the comments in the cases dealing with this issue, that most of the time, this factorwill not affect the “last look” significantly.

As this Court noted in Saran (at para 16): [I]n most instances that fact that the accused will first have to complete the unfinished portion of a previous sentence will be of little orno significance in the sentence that is imposed for the offence before the court. [15] As well, Blair JA in Johnson agreed that the totality principle had a tempered effect in situations where a subsequentsentence is imposed on top of the remainder of an existing one, noting that, “an offender . . . ought not to be seen to be reaping benefitsfrom his previous serious criminal misconduct” (at para 23).

Ultimately, Blair JA concluded (at para 25): In Sentencing: The Practitioner’s Guide, the authors suggest that “the court will balance the length of the unexpired term of theoffender’s sentence against the aggravating effect of the commission of an offence while on parole (or other form of temporary release)”: Gary R. Clewley, Paul G. McDermott and Rachel E. Young, Sentencing: The Practitioner’s Guide (Toronto: Canada Law Book,2011), at para. 1.570(d).

I agree to the extent that, at the end of the day, the subsequent sentencing judge will determine how muchweight to give to the existing remaining sentence by assessing whether the length of the proposed sentence plus the existing sentencewill result in a “just and appropriate” disposition that reflects as aptly as possible the relevant principles and goals of sentencing in thecircumstances. [16] It is true that this principle has been subject to some criticism. See R v Barrett (AW), 2012 NLCA 46, 324 Nfld & PEIR246. But even in Barrett, the principle was not rejected.

The Court concluded that the fact that the accused was already serving anincarceratory sentence could be taken into consideration with respect to the accused’s prospects for rehabilitation, and noted that thisgenerally meant that an accused should not be crushed by a heavy sentence, as this will not allow him to learn from his mistakes and willcause him to lose all motivation to reintegrate with society upon release (see para 55).

Ultimately, the Court in Barrett did consider “allof the time he will be incarcerated” (at para 58). [17] In the case at bar, the judge did not refer to the totality principle, and that may indeed constitute an error in principle. However, I do not believe that this error in itself rendered the sentence unfit or had an impact on the sentence. When sentenced for beingunlawfully at large on January 12, 2016, the warrant expiry date for his sentence for impaired driving causing death was March 27,2016, only a few months later. See Lacasse.

Gladue Factors [18] The accused argues that the judge erred in failing to consider the Gladue factors. [19] It is conceded that defence counsel (who was not defence counsel on appeal) did not address them, other than makingthe Court aware that the accused was Aboriginal. At sentencing, counsel for the accused addressed Gladue in the following manner: “And also Your Honour has noted from the, what was filed, his background, he does have Gladue factors, [the accused].

I’m not, I’mnot going into those greatly at this point simply because I’m simply arguing . . . the usual sentence on these matters.” [20] That is the extent of counsel’s submissions on the Gladue factors. There was no Gladue report provided to the Court. [21] Besides the submission by defence counsel mentioned above, the materials filed at sentencing mention Gladue factors,but only in a very brief and general sense. The decision of the Parole Board of Canada states that: The Board notes your social history which includes family involvement in the 60’s scoop, loss of culture, exposure to substance abuse,

and involvement with negative peers. [22] The accused submits that, when it became obvious that the Court was considering a sentence more in line with what theCrown was seeking, the judge should have alerted counsel and made further inquiry. The judge was entitled to advocacy on the Gladueissue by both counsel before the ultimate determination was made. When none was provided, it should have been requested. There wasan obligation on the Court to make further inquiry of counsel.

It is submitted that failure to make that inquiry and consider those factorsis an error in principle that calls for appellate intervention. [23] The Crown submits that there was an express waiver here and that a strategic decision had been made by defencecounsel not to have particular attention paid to the accused’s circumstances as an Aboriginal offender.

In addition, it is argued thatdefence counsel had a positive obligation to provide relevant information. [24] The consideration of Gladue factors is mandatory for all cases involving Aboriginal offenders unless there has been anexpress waiver on the record by the offender. See R v RCH, 2013 MBCA 108 at paras 60-63, 303 ManR (2d) 39; and R v Kakekagamick(MR) (2006), (ON CA), 214 OAC 127 at para 44. The sentencing judge has a statutory duty, imposed bysection 718.2(

e) of the Code, to consider the unique circumstances of Aboriginal offenders. Failure to do so constitutes an errorjustifying appellate intervention. See R v Ipeelee, 2012 SCC 13 at para 87, [2012] 1 SCR 433. The Gladue factors are not only to beconsidered when deciding whether to impose a term of imprisonment. They should also be considered when determining the length ofthat custodial sentence.

See Gladue at paras 74-79. [25] The procedure for considering Gladue factors in sentencing was addressed by the Supreme Court of Canada in Ipeelee(at para 60): To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and howthat history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substanceabuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarilyjustify a different sentence for Aboriginal offenders.

Rather, they provide the necessary context for understanding and evaluating thecase-specific information presented by counsel. [26] As well, this Court in R v Smoke (DD), 2014 MBCA 91, 310 ManR (2d) 123 stated (at para 42): [T]he factors related to the accused’s circumstances as an Aboriginal offender must be taken into account as mitigating factors going tomoral blameworthiness and weighed, together with all of the other mitigating and aggravating factors related to the offender and theoffence, in determining the appropriate sentence for each offence. [27] Evidence of the circumstances of the Aboriginal offender can be presented in a pre-sentence report, a specific Gladuereport, witness testimony or through submissions by counsel (see Gladue at para 93; R v OEC, 2013 MBCA 60 at paras 36-37, 294ManR (2d) 122; and RCH at para 69). [28] I cannot agree with the Crown that there was a waiver in this case.

In fact, there was the opposite. In the commentmentioned previously, defence counsel was stating that there are indeed Gladue factors in this case, but she was focussing on otherarguments. That does not mean that she waived the Court’s consideration of the Gladue factors. A waiver must be express and clear. [29] It is also clear that the judge was aware that he was dealing with an Aboriginal offender.

During submissions, thesentencing judge asked: [A]nd in that case it’s sort of referring back to Ipeelee and the necessity to consider a contextual analysis in terms of the background ofthe offender and how it informs the breach. [30] Should the judge have done more? Should the judge have, as the accused submits, said to defence counsel that he wasconsidering a much more severe sentence than the 30-60 days she was suggesting?

The fact that the Court was considering a muchlonger sentence than the 30-60 days advocated by defence counsel could not have come as a surprise to anyone in the courtroom, sincethe Crown had just finished his submission asking for a 12-month sentence. [31] There is no question that both Crown and defence counsel have an obligation to bring the pertinent facts to the attentionof the court. “Counsel have a duty to bring that individualized information before the court in every case, unless the offender expresslywaives his right to have it considered” (Ipeelee at para 60).

See Gladue at para 83; and RCH at para 63. [32] However, when that does not happen, the court may have an obligation to act further. The sentencing judge has thepower to request further evidence if the court determines it is appropriate and/or practical (see Gladue at para 84; and R v Wells, 2000SCC 10 at para 54, [2000] 1 SCR 207). As a matter of fact, if the information before the court seems insufficient or the offender is

unrepresented, the court has a duty to at least make further inquiries (see Gladue at para 83; and Wells at para 54). [33] If a sentencing judge decides to proceed to sentencing based on the information before him or her, then he or she musttake into account the Gladue factors. The time has come when a court should at least make explicit its consideration of the accused’sAboriginal background.

A sentencing judge should never become complacent about expressly considering an Aboriginal offender’spersonal circumstances and background, even where the local context involves daily dealings with Aboriginal offenders who havesimilar personal circumstances and backgrounds.

See R v Oakoak (T), 2011 NUCA 4 at paras 24-25, 510 AR 379. [34] Where the local context involves the regular sentencing of Aboriginal offenders, information about the local problemsand community sentencing options may not be required in every case, but the sentencing court must still consider whether theinformation it has is sufficient and adequate and, if the court believes it is sufficient, make its consideration explicit. See R v Napesis(DJ), 2014 ABCA 308, 580 AR 380, where the Court stated, “sentencing judges have a duty to address explicitly an aboriginal offender’scircumstances” (at para 8).

See also R v Laboucane, 2016 ABCA 176 at para 5 . [35] As was said by this Court over ten years ago in R v Flett (

D) et al, 2005 MBCA 61, 195 ManR (2d) 36, “All those whoare involved in the process of sentencing aboriginal offenders need to do better to ensure that the Supreme Court’s expectations inGladue are fulfilled” (at para 22). It should be apparent from the record or from the reasons for sentencing that the analysis of thesentencing judge included consideration of the offender’s Aboriginal circumstances or that such consideration has been waived. See R vGood (HJ), 2012 YKCA 2 at paras 25-26, 318 BCAC 227.

It is unsatisfactory for both the offender and the public to have to infer thatthose circumstances were properly considered. See Good at para 37; and R v Fontaine (TJ), 2014 BCCA 1 at para 35, 348 BCAC 305.

Sentence Harsh and Excessive [36] The accused submits that, regardless of any other errors of law, the sentence of ten months was demonstrably outside ofthe range of sentences given to other similar offenders for this offence. [37] The offence of being unlawfully at large can cover a wide variety of situations and is described in section 145(1) of theCode, which reads as follows: Escape and being at large without excuse 145(1) Every one who (

a) escapes from lawful custody, or (

b) is, before the expiration of a term of imprisonment to which he was sentenced, at large in or out of Canada without lawful excuse, theproof of which lies on him, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years or is guilty of an offence punishable onsummary conviction. [38] The range of sentencing for this offence seems to fall between three months to a year, with Clayton C Ruby, Gerald JChan & Nader R Hasan, Sentencing, 8th ed (Markham: LexisNexis Canada, 2012) at para 23.590, indicating a range of three to tenmonths and the more recent case law trending toward a norm of approximately one to three months.

While there is not a great deal ofjurisprudence on this point, there is some consistency in the appellate jurisprudence over the last few decades. [39] Generally, sentences will tend towards the lower end of the range or below range where the accused absconded orremained at large on impulse or because of concerns about family, where the accused turned him or herself back in, and was only atlarge for a short time.

These situations generally can be characterized as the accused “overstaying” a limited time pass or curfew. [40] A six-month sentence appears to be the sentence most often imposed, and usually involves more than just “overstaying”a limited time pass or curfew, for example, where the accused has walked away from a facility, and/or is only captured after a moreextended time period at large. [41] Sentences of more than six months’ imprisonment are generally imposed only if the accused’s criminal record includesa history of several past occurrences of being unlawfully at large or if serious crimes are committed while at large. [42] In R v Desjarlais (1988), 1988 ABCA 117 , 86 AR 260 (CA), the Alberta Court of Appeal discussed thesentence range in cases of escape or being unlawfully at large in some detail.

In that case, the accused followed others who took anescape route out of the prison after his request for a pass to see his ill common-law wife and child was denied. He was arrested shortlythereafter at his common-law wife’s home and immediately pleaded guilty. He had previously served a four-month sentence for aconviction for being unlawfully at large. The Crown proceeded by indictment and the accused was originally sentenced to two years’imprisonment.

On appeal, the Court allowed the accused’s appeal and substituted a sentence of six months, noting that his was not a“prison breach” situation (at para 12), and did not involve the worst offence or worst offender. The Court took the opportunity to assistsentencing courts with some guidelines. Stevenson JA (as he then was), for the Court, stated (at paras 8-11):

We are concerned with cases in which the Crown elects to proceed as an indictable offence. I note three general classes of cases fallingwithin this section. The first involves a breach of institutional rules or privileges, such as overstaying a pass, or failing to observe acurfew in a halfway house. The degree of premeditation is minimal. The second class of case involves deliberately walking away fromcustodial supervision. Typically, a prisoner under minimal supervision outside the institution walks away from the custodial setting.

Often this kind of case involves a prisoner leaving a work site or location where there is no custodian present. A third category would bethe remaining cases involving, largely, planned escapes from institutions not amounting to prison breach. I have reviewed a number of unreported decisions of this court. There is little discussion of sentencing principles because the range ofsentencing options available is narrow. But there is a surprising diversity in trial judgments that are coming before us.

In anunderstandable effort to demonstrate that “the rules must be obeyed”, maximum or near maximum sentences are sometimes imposed. My review of the cases leads to the conclusion that general and specific deterrence play a significant

part in forming the appropriatesentence. Today one may characterize such a response as “retribution” or “just deserts”. Those undergoing institutional restraints mustrealize that there is a price to pay for breaking the rules. Accordingly, there must be a meaningful sentence and that end is ordinarilyachieved by imposing consecutive imprisonment. The starting point will then reflect the relative gravity of the offence. Cases in the first category generally attract a short consecutive gaol sentence. I think it sufficient to say that the starting point for suchoffences is simply that, consecutive imprisonment.

Offences in the second category will attract a starting point of six months in gaol andthose in the third category upwards of twelve months gaol. The sentencing judge must then consider the relevant aggravating andmitigating factors. One relevant factor will be the degree of premeditation and planning. [43] Perhaps the most relevant case for our purposes was one mentioned by the sentencing judge.

In R v Wolfe (RD) (2010),2010 SKCA 126 , 362 SaskR 84 (CA), the Saskatchewan Court of Appeal concluded that a one-month sentence imposed uponthat accused for pleading guilty to being unlawfully at large was demonstrably unfit. The accused in that case was on parole withenhanced supervision, but failed to report as required shortly thereafter, and remained at large for over a year. He had a lengthy criminalrecord for violent offences and had twice before been convicted for being unlawfully at large.

The Court allowed the Crown’s appealand substituted a six-month sentence. [44] Finally, in R v Schooner (BPS), 2013 BCCA 40, 333 BCAC 168, the British Columbia Court of Appeal reviewed muchof its previous appellate jurisprudence, and concluded that the one-year sentence imposed upon the accused for pleading guilty to beingunlawfully at large was outside the normal range in the circumstances. In that case, the accused walked away from his halfway house aweek into his parole, and was found in another town approximately one month later in the presence of known criminals.

He had alengthy juvenile record and an adult record, but had no prior convictions for this type of offence, although he had had his parole revokedonce before for using drugs. The Court substituted a sentence of four months, concluding that was sufficient to reflect the purpose ofdeterrence considering the accused’s record and his youthfulness (22 years). [45] In conclusion, upon considering these cases, it seems that lower sentences of three months or less are generally imposedwhere the circumstances point to an accused “overstaying” a pass or curfew.

Sentences of four to six months are usually given incircumstances where the accused has been at large for a longer period and/or escaped from a minimal custodial facility. Sentences oversix months are generally reserved for those accused persons with a prior record for being unlawfully at large, or sometimes in situationswhere an accused has committed a serious crime while at large. As always, I add the caution that these are guidelines only and must beadapted to suit the facts of each individual case with their unique aggravating and mitigating factors. Conclusion [46]

Section 718.2(

e) of the Code and the principles enunciated in Gladue and Ipeelee will not make a difference in everysentencing. However, justice must not only be done, it must be seen to be done. The offender and the public have a right to expect ajudge to expressly confirm his or her consideration of the Gladue factors somewhere in the sentencing process, whether that be in thereasons or during submissions, unless there has been an express waiver. [47] There was no express waiver here. It is clear that the judge was aware that the offender was Aboriginal.

At aminimum, the judge had a duty to clarify the reliance on Gladue factors by the defence.

I am of the view that the judge erred in notconsidering the Gladue principles and that this error had an impact on the sentence. [48] When asked at the hearing what should be done on appeal with respect to this issue, defence counsel referred to thecomments mentioned earlier in these reasons as indicative of the Gladue factors that the Court should have considered, and argued thatthis Court could vary the sentence itself based on that material, rather than delay the matter further and order a Gladue report. [49] I do not find these materials particularly helpful.

Normally, an alternative would be to request a further report, but atthis juncture in the proceedings, the added delay in doing so would be of no service to anyone. That is not to say that sentencing judgesmay not defer the imposition of sentence until they have been provided with the information the Supreme Court of Canada has stated thatthey should consider in imposing a sentence on an Aboriginal offender. However, the value in receiving better information must beweighed against the delay, and its impact on the offender and the administration of justice.

In this case, given the offence and theoffender, the impact on sentence is at most a matter of months. Accordingly, it is not appropriate for this Court to impose a sentence

with the materials at hand. [ 50 ] The sentencing judge felt that the accused posed a high risk to the community and there are several factors that substantiate that. The accused’s first statutory release ended with it being revoked due to his consumption of drugs while on release. In addition, he has a significant criminal record, including violent offences such as manslaughter and impaired driving causing death. While he was not intoxicated or high upon his arrest, he was found with cocaine and admitted that he possessed it for his own use.

He pleaded guilty to possession and received a consecutive sentence of 30 days. He should not be punished again for that offence. [ 51 ] The consistent feature of all of the accused’s offending is alcohol and drugs. He was 46 years old at the time of sentencing. The psychological assessment done in 2014 was most concerned about the combination of violence and an apparent inability or lack of desire to address substance abuse. Addiction has controlled his entire life. [ 52 ] I agree with the sentencing judge that 30-60 days would not be an appropriate sentence given these circumstances.

However, if one looks to the cases, it seems that ten months is outside of the range of similar cases. The sentencing judge felt that the case of Wolfe was most similar to the accused at bar and I agree. In Wolfe , the accused was at large for a year and his record also included violent offences and previous court breaches. In that case, the Court of Appeal varied the sentence to one of six months and I would do the same here. [ 53 ] I would grant leave to appeal and allow the appeal.

I would substitute a sentence of six months, consecutive to the sentence for possession and consecutive to the portion of the sentence of impaired driving causing death. JA I agree: JA I agree: JA