R. v. Boutilier, 2018 NSCA 65

Nova Scotia Court of Appeal Citation: R. v. Boutilier , 2018 NSCA 65 Date: 20180724 Docket: CAC 471605 Registry: Halifax Between: Cecil Anthony Boutilier Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Chief Justice J. Michael MacDonald Appeal Heard: June 15, 2018, in Halifax, Nova Scotia Subject: Criminal Law; Sentencing; Credit for Pre-sentence incarceration; Considerations to deny enhanced credit

Summary: The appellant pleaded guilty to criminal negligence causing death, failing to stop at the scene of an accident and theft of a motor vehicle. He was given an appropriate sentence of 7.5 years in prison. From this, the judge credited the appellant for the 769 days he spent in pre-sentence custody. He did so on a straight time (1:1) basis. The appellant seeks an enhanced credit of 1.5:1. Issues: Did the judge err in principle by limiting the pre-sentence custody credit to a 1:1 ratio? Result: Leave granted and appeal allowed.

The appellant’s pre-sentence custody presumptively merited an enhanced 1.5:1 credit. The judge’s reasons for denying it reflected errors in principle in that they would see the appellant punished twice for the same misconduct. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 13 pages. Nova Scotia Court of Appeal Citation: R. v. Boutilier , 2018 NSCA 65 Date: 20180724 Docket: CAC 471605 Registry: Halifax Between: Cecil Anthony Boutilier Appellant v.

Her Majesty the Queen Respondent Judges: MacDonald, C.J.N.S.; Farrar and Bryson, JJ.A. Appeal Heard: June 15, 2018, in Halifax, Nova Scotia Held: Leave granted and appeal allowed, per reasons for judgment of MacDonald, C.J.N.S.; Farrar and Bryson, JJ.A. concurring

Counsel: Roger Burrill, for the appellant Mark Scott, Q.C., for the respondent Reasons for judgment: [ 1 ] After the sentencing judge determines an appropriate term of imprisonment, consideration must be given to any time the offender spends in custody while awaiting trial and sentence. The task is to calculate an appropriate credit. To account for the drawbacks of being on remand, this credit is typically enhanced beyond a 1:1 ratio. Our former Chief Justice explains: [1] ...

A credit of one day for every day of pre-sentence custody will almost never put the person on equal footing with offenders released on bail because the time spent in pre-sentence custody does not count for purposes of parole eligibility, earned remission and statutory release: R. v. Summers , 2014 SCC 26 , [2014] 1 S.C.R. 575, at para. 26 . A one-for-one credit, in other words, results in longer incarceration for offenders detained in pre-sentence custody than for offenders released on bail.

On account of this discrepancy and the reality that pre-sentence custody is generally more onerous than post-sentence custody, sentencing courts have historically given “enhanced” credit for time spent in pre-sentence custody. (McLachlin, C.J. in R. v. Safarzadeh-Markhali , 2016 SCC 14 ) In this appeal, the prisoner challenges the sentencing judge’s decision to grant only a 1:1 credit. Instead, he seeks the statutory maximum credit of 1.5:1. BACKGROUND [ 2 ] This case involves horrific crimes. [ 3 ] Late in the evening of August 9, 2015, Mr.

Harry Blackburn was innocently stopped at a red light on Victoria Road in Dartmouth when an out-of-control van came up over the curb and struck his vehicle. The impact was so severe that Mr. Blackburn’s vehicle was driven across five lanes of traffic and a median before stopping on the grass adjacent to a nearby business. Tragically, Mr. Blackburn died of his injuries a few hours later. [ 4 ] The out-of-control vehicle was driven by the appellant, Cecil Anthony Boutilier, who had stolen it from a nearby dealership just minutes before. Upon impact, Mr.

Boutilier fled the scene on foot but was soon apprehended by the police, with the help of a service dog. [ 5 ] Facing a significant number of charges, Mr. Boutilier, in June of 2017, eventually pleaded guilty to: (

a) criminal negligence causing death; (

b) failing to stop at the scene of an accident; and (

c) theft of a motor vehicle. [ 6 ] In sentencing Mr. Boutilier, the Honourable Justice James L. Chipman of the Supreme Court noted that Mr. Blackburn’s death was rendered even more tragic by the fact that Mr. Boutilier had committed similar crimes like this in the past: [38]

Section 718.2 (

a) requires me to consider any aggravating factors or mitigating circumstances in my determination of the nature and extent at sentence. [ . . . ] Aggravating Factors a. Mr. Boutilier was prohibited from driving at the time of the offences; b. He was under a Probation Order when the offences occurred; c. The circumstances of Mr. Boutilier’s March 19, 2008 sentencing are relevant. The matter involved three distinct s. 249.1(1) offences and two distinct s. 259 offences, one of which involved a flight from police in a stolen vehicle. In the course of that chase, Mr.

Boutilier struck an oncoming vehicle and then crashed a stolen car into a median after which he abandoned the wreck and his co-accused. He fled the scene where he was chased by a K-9 unit; and d. Criminal record – Mr. Boutilier has a significant criminal record. There are a total of fifty (50) prior convictions and many are for offences with nearly identical circumstances.

For example, there are three convictions for driving while disqualified under s. 259 and three convictions for flight under s. 249.1(1). [ . . . ] [46] [. . .] In any event, on the basis of my review of the entirety of the submissions and caselaw, I am of the view that Mr. Boutilier is a habitual car thief. Regrettably, he has shown no hesitation in putting other drivers at risk when pursued by police, or (per the ASF) vehicle owners. This time his actions resulted in the death of the completely innocent Harry Blackburn.

Indeed, the victim was merely lawfully driving his vehicle on a summer evening when he was hit by the stolen vehicle driven at a very high rate of speed by Mr. Boutilier. [ 7 ] The judge also properly addressed the enormous toll this needless death would have on Mr. Blackburn’s family: I would add that the resulting collision with the car resulted in death of the perfectly innocent Harry Blackburn, approximately two hours later. I can only imagine the toll this has exacted on his family as addressed in the VIS submitted and read by the late Mr. Blackburn’s

sister, Carolyn Beaton. [ 8 ] Mr. Boutilier’s very difficult life as an African Nova Scotian - Mi’kmaq man was also properly considered: [26] Mr. Boutilier (d.o.b. August 23, 1981) is 36 years old. His mother is Caucasian and his father of Mi’kmaq and African Nova Scotian heritage. Cecil Boutilier identifies with the Indian Brook First Nation where he lived as a youth with his aunt and uncle. As the Gladue Report author states referring to Mr. Boutilier, “…he stated that he is half Black and Mi’kmaq.” [27] In addition to speaking with Mr.

Boutilier, the Gladue author interviewed his parents, other family members and psychologist. She also reviewed Mr. Boutilier’s physician’s clinical notes and records. On the third last page of her report, Ms. White set forth the following Gladue factors: 1. That Mr. Cecil Anthony Boutilier is a 36-year-old man of Mi’kmaq and Black descent and a non-status member of the Indian Brook First Nations. 2. That Mr. Cecil Anthony Boutilier demonstrates a willingness to address the underlying factors that contributed to the incident.

And expresses a desire to seek treatment for grief and psychological harm of which he was a victim as a child. 3. That there is strong community support and culturally appropriate treatment available to Mr. Cecil Anthony Boutilier, including personal counselling within and after his release. 4. That Mr.

Cecil Anthony Boutilier has personally experienced the adverse impact of many factors continuing to plague aboriginal communities since colonization, including: - Substance abuse, in the immediate family, and among peers; - Family deterioration, separation and absent parents; - Low income and unemployment due to lack of education; - Abuse; - Poverty; - Overt and covert racism; - Domestic violence; - Abuse, emotional, verbal, mental, physical; - Lack of positive Socio-economic conditions; - Lack of stability; - Family member whom commited suicide; - Violence and victimization as a child; - Foster care-residential care; - Suicide; - Food and housing insecurity; - Homelessness; - Post-Traumatic Stress Disorder; and - Parental abandonment. [28] The author goes on to recommend the sentence involve, “…appropriate cultural based counselling to deal with the underlying traumas he has suffered in his life.” Ms.

White also recommended, if possible, programs for Mr. Boutilier that follow, “a community- based and holistic healing philosophy that incorporates both western and traditional therapeutic approaches.” [29] In the IRCA Report, the author spoke of the African Nova Scotian experience and how this might have influenced Mr. Boutilier’s involvement with criminal behavior. At pp. 15–16 of his Report, Mr. Wright put forth the following questions and answers: 2. How should this history and Mr. Boutilier’s unique history and status as an ANS be considered when delivering a sentence; a. Though Mr.

Boutilier’s current crime resulted in a horrible fatality, the trajectory of his life and his criminal behavior leading up to this point is a tragic history of poverty, racial identity confusion, social exclusion and bullying […] childhood mental health programs, lack of responsive and adequate mental health diagnosis and treatment, increasing criminalization, and an inability to have his needs adequately met by the criminal justice system. b.

Given the nature of his mental health problems and the likelihood that a prison environment aggravates this condition, a lengthy period of incarceration without significant mental health assessment and treatment would be challenging for Mr. Boutilier. Programming

to address his racial identity development, his psychological trauma […] will be essential to his being securely and adequately housed. 3. What services or resources should be made available to Mr. Boutilier to support his rehabilitation and reintegration given his unique history and status as an ANS, and; a. Mr. Boutilier probably needs several things in terms of assessment and treatment resources.

These include: […] a treatment plan that addresses his need for specific treatment to support a more positive racial identity development given his mixed-race heritage; a classification, placement and reintegration plan that actively treats his substance addiction with particular attention to considering seamless and sufficient methadone as a cornerstone. 4. What light does Mr. Boutilier’s status as an ANS shed on the conclusions and recommendations that were offered in other reports that may be before the court? a. I have had occasion to speak with Ms. White, the author of Mr. Boutilier’s Gladue Report.

These reports should really be read in tandem and likely make similar observations about Mr. Boutilier’s circumstances. [ 9 ] After considering all the relevant factors, the judge settled on a 7.5 year prison sentence. Both defence and Crown acknowledge that this falls within the appropriate range. Both sides also acknowledged that Mr. Boutilier spent 769 days in pre-sentence custody. The only issue on appeal is the judge’s decision to limit the credit to straight time as opposed to what Mr. Boutilier says should have been a 1.5:1 ratio. In other words, he seeks a reduction of 385 days. [ 10 ] In limiting Mr.

Boutilier’s credit for pre-trial custody, the judge explained: [54] I have already outlined the individual sentences imposed on each of the three counts in this matter. As for the credit for Mr. Boutilier’s time spent on remand, I am of the view that this should be at a rate of 1:1. In this regard I do not believe that Mr. Boutilier deserves to be afforded an enhanced rate.

I say this with reference to the Supreme Court of Canada decisions referencing the Truth and Sentencing Act and the Offender Incidents Report, addressed by Captain Miller during his testimony. [55] Pursuant to Summers , enhanced credit is not automatic. In denying enhanced credit I am mindful of Mr. Boutilier’s long criminal record, his proclivity to immediately reoffend upon release and his poor behavior during his periods of incarceration. [ 11 ] In my respectful view, this approach in essence punishes the offender twice for the same offences.

As I will explain in my analysis that follows, this represents an error in principle which we are compelled to correct. See R. v. Lacasse , 2015 SCC 64 at ¶ 11 . ANALYSIS [ 12 ] I begin with some historical context. Until 2009, courts were free to credit pre-sentence custody as they saw fit. In fact, a 2:1 credit became common. This recognized the disadvantages of being on remand, as described above. [ 13 ] Then in 2009, Parliament capped this credit at 1.5:1. Note that Parliament also seemed to suggest that a 1:1 ratio would be the default going forward. 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 time spent 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 for each day spent in custody. 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 custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). [ 14 ] This provision prompted several new questions for lower courts. For example, what “circumstances” would “justify” a 1.5:1 ratio? Would a 1:1 ratio become the new normal? [ 15 ] The Supreme Court of Canada answered those questions in R. v. Summers , 2014 SCC 26 .

There, Justice Karakatsanis, for a unanimous court, offered a comprehensive review. She began with the historical context: [1] When an accused person is not granted bail, and must be remanded in jail awaiting trial, the Criminal Code , R.S.C. 1985, c. C-46, allows time served to be credited towards a resulting sentence of imprisonment. A day in jail should count as a day in jail. [2] However, crediting a single day for every day spent in a remand centre is often insufficient to account for the full impact of that detention, both quantitatively and qualitatively.

Time in a remand centre does not count for the purposes of eligibility for parole, earned remission or statutory release, and this can result in a longer term of actual incarceration for offenders who were denied bail. Moreover, conditions in remand centres tend to be particularly harsh; they are often overcrowded and dangerous, and do not provide rehabilitative programs. [3] As a result, for many years courts frequently granted "enhanced" credit: 2 days for each day spent in pre-sentence custody. This practice was endorsed by this Court in R. v. Wust , 2000 SCC 18 , [2000] 1 S.C.R. 455.

When conditions were exceptionally harsh, judges granted credit at a rate of 3 to 1 or more. [4] The Truth in Sentencing Act , S.C. 2009, c. 29 (TISA), passed in 2009, amended the Criminal Code to cap pre-sentence credit at a maximum of 1.5 days for every day in custody. The purpose was to remove any incentive for an accused to drag out time in remand

custody, and to provide transparency so that the public would know what the fit sentence was, how much credit had been given, and why. [5] In this case, the Court is called upon to interpret these amendments. There is no dispute that Parliament imposed a cap on enhanced credit at a rate of 1.5 to 1.

However, there are conflicting lower court decisions on when ‘enhanced’ credit at a rate higher than 1 to 1is available. [ 16 ] In dismissing the notion that a 1:1 ratio would be the new normal, Justice Karakatsanis highlighted the basic unfairness to such an approach: [65] However, it is difficult to see how sentences can reliably be ‘proportionate to the gravity of the offence and the degree of responsibility of the offender’ (s. 718.1) when the length of incarceration is also a product of the offender’s ability to obtain bail, which is frequently dependent on totally different criteria. [66] Judicial interim release requires the judge to be confident that, amongst other things, the accused will neither flee nor reoffend while on bail.

When an accused is able to deposit money, or be released to family and friends acting as sureties (who often pledge money themselves), this can help provide the court with such assurance. Unfortunately, those without either a support network of family and friends or financial means cannot provide these assurances. Consequently, as the intervener the John Howard Society submitted, this means that vulnerable and impoverished offenders are less able to access bail. [67] For example, Aboriginal people are more likely to be denied bail, and make up a disproportionate share of the population in remand custody.

A system that results in consistently longer, harsher sentences for vulnerable members of society, not based on the wrongfulness of their conduct but because of their isolation and inability to pay, can hardly be said to be assigning sentences in line with the principles of parity and proportionality.

Accounting for loss of early release eligibility through enhanced credit responds to this concern. [68] For these reasons, I conclude that the ‘circumstances’ justifying enhanced credit under s. 719(3.1) may include loss of eligibility for early release and parole. [69] To conclude otherwise, it would be necessary for the Court to read limiting language into s. 719(3.1) that is simply not there. Such an

interpretation would result in sentences inconsistent with the Code ’s own statement of principles, and would presume that the legislature intended to abolish the quantitative rationale for enhanced credit — that offenders should not be punished more severely because they were not released on bail — without clear language. And this despite the well-established practice, endorsed by this Court in Wust in the year 2000, that enhanced credit can be justified based upon the loss of eligibility for parole and early release.

Such a conclusion is not plausible. [ 17 ] Instead, Justice Karakatsanis concluded that the tradition of enhanced credit (capped at 1.5:1) would continue: [70] In determining credit for pre-sentence custody, judges may credit at most 1.5 days for every day served where circumstances warrant. While there is now a statutory maximum, the analytical approach endorsed in Wust otherwise remains unchanged.

Judges should continue to assign credit on the basis of the quantitative rationale, to account for lost eligibility for early release and parole during pre-sentence custody, and the qualitative rationale, to account for the relative harshness of the conditions in detention centres. [71] The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely.

Of course, a lower rate may be appropriate when detention was a result of the offender’s bad conduct, or the offender is likely to obtain neither early release nor parole. When the statutory exceptions within s. 719(3.1) are engaged, credit may only be given at a rate of 1 to 1.

Moreover, s. 719 is engaged only where the pre-sentence detention is a result of the offence for which the offender is being sentenced. [72] This means that two offenders, one of whom lost the opportunity for early release and parole, and a second who, in addition to losing those opportunities, was also subject to extremely harsh conditions, will likely both have credit assigned at a rate of 1.5 to 1. The unavoidable consequence of capping pre-sentence credit at this rate is that it is insufficient to compensate for the harshness of pre- sentence detention in all cases.

However, this does not mean that credit should be scaled back in order to ‘leave room at the top’ of the scale for the most egregious cases. A cap is a cut-off and means simply that the upper limit will be reached in more cases. It should not lead judges to deny or restrict credit when it is warranted. [ 18 ] Note that a lower rate, while not ruled out, would be limited to two circumstances, namely: (

a) as a result of the offender’s bad conduct; or (

b) where he “is likely to obtain neither early release nor parole”. Furthermore, (and particularly relevant to this appeal) the bad conduct exception should generally not apply to behaviour that has already been punished. Sharpe J.A., in R. v.

Hussain , 2018 ONCA 147 explains: [18] ...Quite apart from the statutory bail misconduct exclusion, there is a discretion to deny enhanced credit where the ‘detention was a result of the offender’s bad conduct’: Summers , at para. 71 . [ 19 ] The appellant submits that the trial judge erred by denying enhanced credit on the facts of this case because the appellant had already been punished for the breach of recognizance and breach of the firearm prohibition order. [ 20 ] I agree with the appellant’s submission.

He received what was, in my view, an entirely appropriate consecutive eighteen month sentence for the two breach offences, consecutive to the firearm trafficking sentence. The breach offences were serious and a significant deterrent sentence to maintain public confidence in the justice system was fully justified. However, while the fact that an offence was committed on bail may be taken into account in determining the appropriate amount of pre-sentence credit, the extent to which the breach has already been punished must also be considered: see R. v. Colt , 2015 BCCA 190 , 324 C.C.C. (3d) 1, at paras. 24-27 .

To impose n eighteen month sentence for the breaches, and then further deny the appellant the usual credit for pre-sentence custody on the basis of the same breaches would, in effect, punish him twice for the same misconduct: see R. v. Campbell , 2017 ONSC 26 , [2017] O.J.

No. 633, at para. 62; R. v. Bonneteau, 2016 MBCA 72, 330 Man. R. (2d) 139, at para. 22; R. v. Allen, 2015 BCCA 479, 381 B.C.A.C. 19, at para. 20; R. v. Vinepal, 2015 BCCA 349, 375 B.C.A.C. 189, at para. 22. [21] I realize that the discretion to deny enhanced credit for pre-sentence custody has been exercised in some cases where the accusedwas sentenced at the same time for the breach charges that led to the revocation of bail: see, e.g., R. v. Warren (1999), (ON CA), 127 O.A.C. 193, [1999] O.J. No. 4591 (C.A.); R. v. Morris, 2013 ONCA 223, 305 O.A.C. 47.

However, those cases didnot involve sentences as significant as the sentence imposed for the breaches in this case and the double punishment point was notconsidered. In my view, where an offender is simultaneously being sentenced for breach charges and the charges that led to therecognizance or court order that was breached, it will ordinarily be preferable for the sentencing judge to deal with the breach byimposing a sentence commensurate with the seriousness of the breach.

Such a sentence reflects the aggravating factor of committing anoffence in breach of a court order and serves the purposes of sentencing, including deterrence, more directly and more appropriately thanby denying enhanced credit for pre-sentence custody. In this case, the appellant was sentenced for the breach offences directly.

Heshould not also be denied enhanced credit for the period of incarceration between the revocation of his bail and the imposition of hissentence due to the same breaches. [22] I do not, however, exclude the possibility that in some circumstances, such as where an offender attempts to ‘game the system’ bycausing delays in order to accrue additional enhanced pre-sentence credit, the denial of enhanced credit in addition to the sentenceimposed for the breach may be justified.

In such a case, however, it is the manipulation of the pre-sentence credit regime, and not thebail breach, that is targeted. [19] See also R. v. Bonneteau, 2016 MBCA 72 at ¶ 20-22 and R. v. Hansen, 2014 BCCA 438 at ¶ 14. [20] With this legal framework, I return to the judge’s reasons for denying Mr. Boutilier enhanced credit. Recall, he was “mindful”of three examples of bad conduct: [55] Pursuant to Summers, enhanced credit is not automatic. In denying enhanced credit I am mindful of Mr.

Boutilier’s long criminalrecord, his proclivity to immediately reoffend upon release and his poor behavior during his periods of incarceration. [21] In my respectful view, these concerns represent behaviour that has already been taken into account and, therefore, should notbe used to deprive Mr. Boutilier of a 1.5:1 credit. For example, the first two concerns are intertwined. They target not just Mr. Boutilier’sabysmal criminal record but also the repetitive nature of his crimes. Yet, Mr. Boutilier has already been sentenced for each and everyoffence.

More importantly, they were considered aggravating factors leading to the 7.5 year sentence for the instant offences. I repeatthe judge’s comments for ease of reference: [38]

Section 718.2(

a) requires me to consider any aggravating factors or mitigating circumstances in my determination of the nature andextent at sentence. As the Supreme Court of Canada noted in R. v. Pham, 2013 SCC 15 , at para. 8: In addition to proportionality, the principle of parity and the correctional imperative of sentence individualization also inform thesentencing process. This Court has repeatedly emphasized the value of individualization in sentencing: Ipeelee, at para. 39; R. v. Wust,2000 SCC 18 , [2000] 1 S.C.R. 455, at para. 21; R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 92.Consequently, in determining what a fit sentence is, the sentencing judge should take into account any relevant aggravating or mitigatingcircumstances (s. 718.2(

a) of the Criminal Code), as well as objective and subjective factors related to the offender's personalcircumstances. Aggravating Factors a. Mr. Boutilier was prohibited from driving at the time of the offences; b. He was under a Probation Order when the offences occurred; c. The circumstances of Mr. Boutilier’s March 19, 2008 sentencing are relevant. The matter involved three distinct s. 249.1(1)offences and two distinct s. 259 offences, one of which involved a flight from police in a stolen vehicle.

In the course of that chase, Mr.Boutilier struck an oncoming vehicle and then crashed a stolen car into a median after which he abandoned the wreck and his co-accused. He fled the scene where he was chased by a K-9 unit; and d. Criminal record – Mr. Boutilier has a significant criminal record. There are a total of fifty (50) prior convictions and many are foroffences with nearly identical circumstances. For example, there are three convictions for driving while disqualified under s. 259 andthree convictions for flight under s. 249.1(1). [22] The judge’s third concern involves Mr.

Boutilier’s Offender Incident Report, which portrays a highly problematic prisoner overhis many years of incarceration. However, Mr. Boutilier suffered consequences for each and every listed infraction. The punishmentincluded being confined to his cell, often with a loss of privileges. On numerous occasions he endured segregation – the most severeform of institutional punishment. He should not be punished again with the imposition of straight time. [23] Furthermore, at no time did the judge suggest that these institutional infractions would diminish Mr. Boutilier’s prospects forearly release.

Had he done so, an enhanced credit may have properly been denied. See Summers, supra, at paragraphs 75-79. Before us,the Crown urged that the judge implied as much. I disagree. There is nothing in the judge’s reasons remotely connecting these infractionsto Mr. Boutilier’s potential release date. [24] In

summary, denying Mr. Boutilier an enhanced credit meant punishing him twice for the same misconduct. That represents an

error in principle which this Court must rectify. He is entitled to a credit of 1.5:1. DISPOSITION [ 25 ] I would grant leave, allow the appeal and reduce the sentence by 385 days. MacDonald, C.J.N.S. Concurred in: Farrar, J.A. Bryson, J.A.