R v Bonneteau, 2016 MBCA 72

Citation: R v Bonneteau, 2016 MBCA 72 Date: 20160610 Docket: AR15-30-08352 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner BETWEEN : HER MAJESTY THE QUEEN ) W. G. Marks ) for the Appellant Respondent ) ) C. T. St. Croix - and - ) for the Respondent ) JODY ROBERT MARCEL BONNETEAU ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) June 10, 2016 PFUETZNER JA (for the Court): [ 1 ] The accused pleaded guilty to six offences, including theft under $5,000 contrary to

section 334 (

b) of the Criminal Code (the Code ); assaulting a peace officer contrary to section 270(1) (

a) of the Code ; failure to comply with a recognizance contrary to section 145(3) of the Code ; flight from a peace officer contrary to

section 249.1(1) of the Code ; dangerous driving contrary to section 249(1) (

a) of the Code ; and assault with a weapon contrary to

section 267 (

a) of the Code . [ 2 ] He received a total sentence of 66 months’ custody, less credit for 17 months of pre-sentence custody (PSC) at the rate of 1:1. [ 3 ] The accused seeks leave to appeal and appeals the sentence. Leave to appeal was granted and the appeal was allowed, in part, at the conclusion of the hearing with brief reasons to follow.

These are those reasons. [ 4 ] The accused’s grounds of appeal are that the sentencing judge erred in failing to apply the principle of totality, and that the sentencing judge erred by failing to grant the accused enhanced credit for PSC at the rate of 1.5:1. [ 5 ] The offences arose from incidents occurring on three separate dates. After assisting a 74-year-old woman at an ATM, the accused and an accomplice followed her home where they committed a planned and deliberate theft of her wallet and cheque book. The victim was not injured.

The accused then used the victim’s bank card to withdraw funds from her account. [ 6 ] Two weeks later, the accused struck a police officer with his elbow while being arrested for the earlier theft. The accused was detained in custody for two weeks and was released on judicial interim release. [ 7 ] Six days after being released, the accused was driving a vehicle and was subject to a traffic stop. He was in breach of his curfew condition, which resulted in the failure to comply offence.

The accused did not comply with the officers’ instructions at the traffic stop; rather, he fled the scene at a high rate of speed. His vehicle was ultimately cornered by officers in a parking lot. As he fled to avoid arrest, he drove his vehicle at the officers, grazing one and nearly hitting the other. A warrant was issued, leading to his arrest. After his arrest, the accused applied again for judicial interim release but was denied. [ 8 ] The sentencing judge arrived at the total sentence of 66 months’ incarceration as follows.

He imposed a sentence of 18 months for the theft under $5,000 offence; a consecutive sentence of three months for assaulting a peace officer; a consecutive sentence of three months for failure to comply with a recognizance; a consecutive sentence of 24 months for the flight from a peace officer; a concurrent sentence of 24 months for the dangerous driving offence; and a consecutive sentence of 18 months for the assault with a weapon. [ 9 ] The sentencing judge did not give enhanced credit to the accused for his PSC, because, at the date of the sentencing, section 719(3.1) of the Code prevented enhanced credit from being granted to an offender, such as the accused, who had been detained under section 524(8) of the Code .

Section 719(3.1) reads:

Exception 719(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custodyunless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained incustody under subsection 524(4) or (8). [10] The standard of review in a sentence appeal is well established. Appellate intervention is only warranted if thesentencing judge committed an error in principle which impacted the sentence, or if the sentence was demonstrably unfit.

An error inprinciple includes failing to consider a relevant factor, taking into account an irrelevant factor, or failing to give sufficient weight to, oroveremphasizing, a relevant factor.

See R v M (CA), (SCC), [1996] 1 SCR 500; R v Lacasse, 2015 SCC 64, [2015] 3SCR 1089; R v Gabriel (QJ), 2013 MBCA 45 at para 17, 291 ManR (2d) 291; and R v Ruizfuentes (HS), 2010 MBCA 90 at para 7, 258ManR (2d) 220. [11] The accused’s first ground of appeal is that the sentencing judge erred by failing to apply the principle of totality toensure that the total sentence resulting from the consecutive sentences is not excessive for him as an individual. See R v Draper (TG),2010 MBCA 35 at paras 29-31, 251 ManR (2d) 267. [12] We are not persuaded by this argument.

Indeed, the sentencing judge’s reasons show that he did apply the totalityprinciple. He initially assigned a sentence of 24 months for the assault with a weapon charge, resulting in a total sentence of 72 months. The sentencing judge then reduced that sentence to 18 months after “taking another look” at the accused’s criminal record and “hisantecedents as described in the detailed pre-sentence report”. As a result, the total sentence was reduced from 72 months to 66 months.

This is in accordance with this Court’s directions in Draper regarding the application of the totality principle (see para 31). [13] The sentencing judge’s application of the totality principle is entitled to deference, and we are not persuaded that thetotal sentence is unfit.

Accordingly, this ground of appeal is dismissed. [14] The accused’s second ground of appeal relates to a restriction on enhanced credit that was previously contained insection 719(3.1) of the Code and which was applied by the sentencing judge. [15] After the accused was sentenced, this Court released its decision in R v Kovich (GW), 2016 MBCA 19, 326 ManR (2d)101, which held that the restrictions in section 719(3.1) of the Code on granting enhanced credit are unconstitutional.

Section 719(3.1) ofthe Code now effectively reads: Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody. See also R v Safarzadeh-Markhali, 2016 SCC 14. [16] As the sentencing judge relied on one of the prior restrictions to deny enhanced credit to the accused, impacting thesentence he imposed, his decision is not entitled to deference and we can revisit the issue afresh. [17] The reasons for granting enhanced credit for PSC are well established, and include the fact that conditions in PSC areoften harsher than in post-sentence incarceration.

In addition, enhanced credit can be granted to account for the fact that time in PSC isnot considered in determining parole eligibility or entitlement to early release. See R v Summers, 2014 SCC 26 at paras 21-30, 71, [2014]1 SCR 575. Ultimately, the decision as to the appropriate amount of enhanced credit, if any, is discretionary. [18] In this case, there is nothing to indicate that the accused experienced harsh remand conditions.

He was detained at theHeadingley Correctional Institution and had access to programming, such as the Winding River Therapeutic Community program, whichhe completed. [19] As to early release, there is nothing to indicate that the accused is likely to be denied statutory release after he hasserved two-thirds of his sentence. See the Corrections and Conditional Release Act, SC 1992, c 20 sections 127(3), 129 and 130 and R vSlack (AO), 2015 ONCA 94 at para 16, 331 OAC 228.

Indeed, according to Clayton C Ruby, Gerald J Chan & Nader R Hasan,Sentencing, 8th ed (Markham: LexisNexis, 2012) at para 13.39, “Only 2 to 3 per cent of federal prisoners serve every day of theirsentences before being released.” See also R v Stonefish (ST), 2012 MBCA 116 at para 50, 288 ManR (2d) 103. [20] The Crown argued that we should deny enhanced credit on the basis that the accused’s PSC was the result of his ownbad conduct, since he committed additional offences while on judicial interim release.

The Crown also said that we should denyenhanced credit because, based on his prior conduct, the accused is likely to breach the terms of his statutory release and bereincarcerated. [21] In the circumstances of this case, we do not agree that enhanced credit should be denied on either basis. [22] First, the accused’s total sentence included a three-month consecutive sentence for his failure to comply with his

recognizance. To deny him enhanced credit on the basis of having committed further offences while on a recognizance would, to some extent, punish the accused twice. [ 23 ] Second, if the accused breaches the conditions of his release, the consequences of that breach will be determined by the Parole Board. See the Corrections and Conditional Release Act ,

section 135. In our view, it is not necessary for us to attempt to address the prospect of a future breach now by a denial of enhanced credit. [ 24 ] For these reasons, we are of the view that the accused should be credited at a rate of 1.5:1 for his 17 months of PSC. [ 25 ] Leave to appeal is granted and the sentence is varied so that the accused is credited with 25 and one-half months for his time in PSC, thereby reducing his sentence to 40 and one-half months of incarceration. [ 26 ] We confirm the sentences imposed by the sentencing judge for the individual offences as set out in para 8 herein.

Taking into account the enhanced credit for PSC, the sentences are as follows: • For theft under $5,000: 17 months’ custody (i.e., 18 months’ custody less 1 month PSC); • For assaulting a peace officer: 1 month custody, consecutive (i.e., 3 months’ custody less 2 months’ PSC); • For failure to comply with recognizance: 1 month custody, consecutive (i.e., 3 months’ custody less 2 months’ PSC); • For flight from a peace officer and dangerous driving: 15 and one-half months’ custody, consecutive (but concurrent to each other) (i.e., 24 months’ custody less 8 and one-half months’ PSC); and • For assault with a weapon: 6 months’ custody, consecutive (i.e., 18 months’ custody less 12 months’ PSC).

JA JA JA