R v Pelletier, 2019 MBCA 126

Citation: R v Pelletier, 2019 MBCA 126 Date: 20191219 Docket: AR19-30-09265 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre Madam Justice Lori T. Spivak BETWEEN: ) M. G. Enrighther majesty the queen ) for the Appellant ) Respondent ) C. R. Savage ) for the Respondent- and - ) ) Appeal heard andblair allen pelletier ) Decision pronounced: ) December 9, 2019 (Accused) Appellant ) ) Written reasons: ) December 19, 2019 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that coulddisclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code). mainella JA (for the Court): Introduction [1] After a trial by judge alone, the accused was found guilty of sexual assault and sexual interference. The convictionfor sexual assault was conditionally stayed (see Kienapple v The Queen, (SCC), [1975] 1 SCR 729). The judge imposeda sentence of 12 months’ imprisonment for sexual interference, concurrent to the accused’s life sentence from 1982 for first degreemurder.

In passing sentence, the judge declined to give any credit for pre-sentencing custody (PSC) that occurred when the accused’sparole was suspended. [2] The accused appealed his conviction and sought leave to appeal and, if granted, appealed his sentence. The accusedis in custody, did not desire to be present at his appeal and instructed his counsel to proceed in his absence (see

section 688 of theCriminal Code). After hearing and considering the submissions of counsel, we granted the accused leave to appeal his sentence butdismissed his appeals as to both conviction and sentence with reasons to follow. These are our reasons. Background [3] The events giving rise to the accused’s conviction and sentence are as follows. The accused was a guidancecounsellor at a private school in Winnipeg which the complainant, his 13-year-old niece, attended.

On April 7, 2017, while driving thecomplainant back from a school field trip, he touched her left thigh and placed his hand under her shirt and bra, touching her right breast. Later that day, the complainant told her sister what had happened. In his testimony, the accused admitted to giving the complainant aride but denied that any sexual touching occurred. [4] At the time of the incident, the accused was 68 years old and married. His criminal record was lengthy and stretchedback to the 1960s.

Before being convicted for first degree murder, he was convicted of manslaughter in 1977 and received a three-yearsentence. In 1985, he was convicted of a number of serious sexual offences and received a seven-year sentence. There were Gladuefactors (see R v Gladue, (SCC), [1999] 1 SCR 688) in his background, such as some intergenerational effects ofresidential schools, limited formal education, loss of indigenous identity, substance abuse and lack of employment for lengthy periods.

He had been in the community on parole since 2006 without incident and living a pro-social lifestyle until the incident with his niece. [5] The accused’s parole was suspended, and he was returned to custody in the penitentiary, before he was charged withthe sexual offences against his niece. A few months after being charged, he received judicial interim release from a Provincial Courtjudge but remained in custody because of the parole suspension. Eventually his parole was revoked by the Parole Board and remained sountil about two months prior to trial when it reinstated parole and the accused was released.

Once convicted, the accused’s parole wasagain suspended and he returned to custody. The accused requested PSC for the period between when his parole was originally

suspended and revoked (300 days). He says that he is entitled to PSC for that period because he was being held in custody without aparole hearing because of the allegation by his niece for which he was granted judicial interim release. Conviction Appeal [6] The accused raises two grounds of appeal as to how the judge assessed credibility. He describes them as“intertwined”.

He argues that the judge misapprehended his evidence and that of the complainant and that the judge unevenlyscrutinised the evidence. [7] On the question of misapprehending the evidence, we are not persuaded that the judge made a readily obvious errorthat goes to the substance of material parts of the evidence and that such an error played an essential

part in the reasoning process thatresulted in the conviction (see R v Jovel, 2019 MBCA 116 at para 31). None of the examples raised by the accused meets the firstrequirement of that stringent standard, a readily obvious error to material evidence. All of the arguments amount to nothing more than aninvitation for this Court to assess the significance of frailties in the testimony of both the accused and the complainant differently thanthe judge did.

A misapprehension of evidence is an entirely different situation than where a party says a trial judge should haveinterpreted the evidence differently (see R v Whiteway (BDT) et al, 2015 MBCA 24 at para 32). Even if we would have assigned moreor less weight to the evidence than the judge did, that is not a basis for this Court to interfere with his fact finding (see Jovel at para 35). [8] We are also not satisfied that the judge scrutinised the evidence of the complainant and the accused unevenly.

This,too, is also a difficult ground of appeal for an appellant to succeed on (see R v CAM, 2017 MBCA 70 at paras 34-35). There is nothingclear from the record or the judge’s reasons to establish that he took an incongruent approach (see Jovel at para 38). We reject theaccused’s submission that the judge parsed his evidence. The judge fairly summarised the evidence of the complainant and the accusedand assessed the frailties with each. He gave no weight to the accused’s lengthy criminal record in assessing credibility.

Two of thereasons why he disbelieved the accused were corroborated by independent witnesses who worked at the school. Finally, it was alsoopen to the judge to find that it made “little sense” that the complainant fabricated the allegation to get back at the accused and his wifefor refusing to let her move in with them. [9] In

summary, the judge’s credibility assessment can be reasonably supported by the record; accordingly, it is not opento this Court to interfere with it (see CAM at para 37). Sentence Appeal [10] The quantum of sentence the judge imposed is not challenged by the accused—only the refusal to grant any credit forPSC for the initial 300 days of custody while parole was suspended. [11] The judge concluded “that parole should not enter into any sentencing considerations in terms of pre-trial custody.

Parole and sentencing are entirely different matters.” However, he went on to say, “I am nonetheless mindful of the impact that thismatter has had on the accused’s parole status, and this impact has factored into my decision in terms of overall fairness.” To that end, thejudge rejected the Crown’s submission that the quantum of sentence should be 18 months’ imprisonment without any credit for PSC andaccepted the accused’s submission that the sentence should be one of 12 months’ imprisonment without, however, any credit for PSC forthe period when parole was suspended. [12] The accused argues that the judge made an error in principle.

He says section 719(3) of the Criminal Code isapplicable and, accordingly, some credit for PSC is the rule, not the exception.

Section 719(3) provides: Determination of sentence 719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any timespent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day foreach day spent in custody. [13] Rosenberg JA observed in R v Wilson, 2008 ONCA 510, that it would “distort the sentencing regime” (at para 42) togrant credit for PSC simply because an accused was serving a sentence for an unrelated offence.

He explained that such a scenario doesnot meet the requirements of section 719(3) because the period of custody is not “as a result of the offence” for which an accused isbeing sentenced (see also R v Farrah (D), 2011 MBCA 49 at para 60). [14] Pursuant to sections 135(1) and 135(10) of the Corrections and Conditional Release Act, SC 1992, c 20, when anoffender is in custody because his or her parole has been suspended, he or she is considered to be serving a sentence.

Several courts ofappeal have concluded that, where parole is suspended for an unrelated offence, detention because of that suspension cannot be the solereason to grant credit for PSC for a subsequent offence for which an accused is being sentenced (see R c Robitaille, [1995] JQ no 682(Qc CA); R c Lachance, [1995] JQ no 857 (Qc CA); R v Mantha (2001), (QC CA), 155 CCC (3d) 301 (Qc CA); R vSteele, 2007 BCCA 12; and R v Jean, 2008 BCCA 465). [15] This Court considered the effect of forfeiture of parole on a sentence for an unrelated offence in R v Saran, 1996CarswellMan 520 (CA), which the judge referred to in his reasons.

In Saran, this Court made two important observations. First, caremust be taken to avoid an accused getting some benefit from loss of parole on an unrelated offence because of his or her misconduct. Second, the sentencing court cannot lose sight of the overall length of custody of an accused because, at a minimum, that will bear onthe sentencing objectives of protection of the public and rehabilitation. As the Crown appropriately acknowledged, this reasoning is inkeeping with the obligation on a sentencing judge under

section 726.1 of the Criminal Code to consider “any relevant information” aboutan accused. [16] The granting of PSC is subject to the same standard of review as to the determination of a sentence generally (seeFarrah at para 8; and R v Assiniboine, 2016 MBCA 44 at para 30). That standard is highly deferential (see R v Houle, 2016 MBCA 121at para 11).

[ 17 ] We are not persuaded that there is a basis to vary the accused’s sentence. In his reasons, the judge took into account the effect of parole suspension in arriving at a fit sentence for sexual interference (see Saran ). It was not a material error, given the wording of section 719(3) of the Criminal Code , for the judge to grant no credit for PSC because of the mere fact that the accused was in custody and serving a sentence on an entirely unrelated and serious offence.

We also are not convinced that the sentence for sexual interference was demonstrably unfit in light of the circumstances of the offence and the accused. The accused committed a sexual offence against a child while in a position of trust. In light of this highly morally blameworthy conduct, it was reasonably open to the judge to emphasise protection of the public notwithstanding the sentencing objective of assisting rehabilitation and the principle of restraint. Disposition [ 18 ] In the result, leave to appeal sentence was granted but the appeals as to both conviction and sentence were dismissed. JA JA JA