R v Parfitt, 2023 SKCA 125

Court of Appeal for Saskatchewan Docket: CACR3455 Citation: R v Parfitt , 2023 SKCA 125 Date: 2023-11-17 Between: Gerry Michael Parfitt Appellant And His Majesty the King Respondent Before: Jackson, Caldwell and McCreary JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr.

Justice Caldwell In concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice McCreary On appeal from: 2021 SKQB 123 , Melfort Appeal heard: September 7, 2023 Counsel: Andrew Hitchcock for the Appellant Erin Bartsch for the Respondent Caldwell J.A. [ 1 ] Gerry Michael Parfitt appeals against the combined duration of a two-year sentence of imprisonment and a 10-year long-term supervision order [LTSO] imposed on him following his designation as a long-term offender under

Part XXIV of the Criminal Code . For the reasons that follow, I would dismiss the appeal. [ 2 ] In this case, the predicate offence is a count of breaking and entering and committing an assault causing bodily harm contrary to s. 348(1) (

b) of the Criminal Code . That offence occurred in 2014 and Mr. Parfitt was convicted of it and other violent offences in April of 2015 ( R v Parfitt (22 April 2015) Melfort, CRM 21 of 2014 (Sask QB)). He was subsequently declared a dangerous offender and sentenced to a 10-year term of imprisonment (less pre-sentence credit) followed by a 10-year LTSO ( R v Parfitt (29 June 2016) Melfort, CRM 21 of 2014 (Sask QB)). In 2019, applying the reasoning in R v Boutilier , 2017 SCC 64 , [2017] 2 SCR 936, this Court overturned Mr. Parfitt’s dangerous-offender designation and remitted the matter for a rehearing under

Part XXIV of the Criminal Code ( R v Parfitt , 2019 SKCA 55 , 378 CCC (3d) 490). After the rehearing, a judge of the Court of Queen’s Bench designated Mr. Parfitt a long-term offender, sentenced him to two years in prison, and imposed a 10-year LTSO ( R v Parfitt , 2021 SKQB 123 ). The warrant of committal in Mr. Parfitt’s case expired in April of 2023, and he is now residing in the community under his LTSO. [ 3 ] In this appeal, Mr. Parfitt seeks to reduce the duration of his 10-year LTSO on the basis that the 2-year term of imprisonment imposed on him, which he has fully served, was too long.

While he acknowledges that the Criminal Code does not provide a means to remedy an unfit sentence after warrant expiry, he argues that errors in the length of a custodial term may be addressed by reducing the duration of an associated LTSO. [ 4 ] Let me first say, I agree with Mr. Parfitt’s assessment of the law of sentencing under the Criminal Code —it does not specifically allow an appellate court to grant the remedy he seeks in this appeal.

Further, albeit there is no rule to this effect, this Court has traditionally declined to review the fitness of a custodial sentence after it has been fully served because the issue in such circumstances is moot (e.g., see R v Lewis , 2019 SKCA 11 at para 9 ). Mr. Parfitt did not refer to, and I am not aware of, any precedent where this Court has reviewed an expired sentence. [ 5 ] Furthermore, I find no support in the jurisprudence for the pathway that Mr. Parfitt submits this Court should take to interfere with the sentence imposed on him. I am unable to reconcile, on the one hand, Mr.

Parfitt’s contention that this Court has the authority to reduce the duration of an LTSO as a means to correct an alleged error in the fitness of an expired custodial sentence with, on the other hand, the principles of sentencing under

Part XXIII of the Criminal Code and the purpose of an LTSO under

Part XXIV. [ 6 ] A custodial sentence is a punishment imposed for committing a specific offence that is crafted through the application of the sentencing principles under

Part XXIII of the Criminal Code . Under that Part, the fundamental purpose of sentencing is to “protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions” (s. 718). The fundamental principle of

Part XXIII sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (s. 718.1). Under

Part XXIII, the sentencing court will consider factors including the gravity of the offence in question, the parity principle and the possibility of imposing a less restrictive sanction, among other factors. In R v Boutilier , a majority of the Supreme Court affirmed that its reasoning in R v Johnson , 2003 SCC 46 , [2003] 2 SCR 357, continued to apply such that a court sentencing an offender under

Part XXIV of the Criminal Code is duty-bound to consider the general principles enumerated under

Part XXIII “in order to choose a sentence that is fit for a specific offender” (at para 62; see also R v Piche , 2019 SKCA 54 at paras 73–86 , [2020] 2 WWR 240, and R v Napope , 2019 SKCA 124 at para 4 ). [ 7 ] An LTSO is also imposed to protect the public, but it is a preventative measure that does so after an offender is released into the community following service of a custodial sentence. Although there is some overlap in the relevant factors, the duration of an LTSO is determined by the application of different principles than are relevant to the crafting of a fit custodial sentence.

A sentencing court will fix the duration of an LTSO based on its assessment of, among other factors, the offender’s criminal past, the level and complexity of the offender’s risk of reoffending, and the availability in the community of the means to address that risk. Protection of the public under an LTSO is afforded through supervision of the offender in the community by parole officers, through the offender’s participation in

rehabilitative programming, and through the offender’s adherence to other conditions determined and imposed by the Parole Board ofCanada. At its lengthiest, the term of an LTSO “cannot be any longer than is necessary to obviate the risk that the offender will reoffend”(R v L.M., 2008 SCC 31 at para 44, [2008] 2 SCR 163). [8] Most critically, in R v L.M. a majority of the Supreme Court held that the fact that an LTSO must be imposed on a long-termoffender does not affect the determination of the term of imprisonment that should be served by the offender.

The majority stated that it is“important to remain faithful to the distinction between sentencing and the imposition of a supervision period” (at para 49) and went on toadmonish the practice of ignoring this distinction: [49] … A judge who confuses these two processes risks straying from the normative principles and the objectives of sentencing. Ajudge who does so would also neglect the specific objective of the procedure for finding an offender to be a long-term offender, whichrequires the application of different principles. Parliament intended that the judge determine the appropriate sentence first.

After doing so,the judge is to ask, in light of Parliament’s objective of protecting the public, whether a period of supervision is warranted. The period ofcommunity supervision cannot therefore be equated with a new period of deprivation of liberty consecutive to the one resulting from thesentence. [50] It is therefore my opinion that a long-term offender’s period of community supervision cannot be taken into account whendetermining the acceptable length of the offender’s incarceration. … [9] I cannot accede to Mr.

Parfitt’s argument that what the majority of the Supreme Court said in R v L.M. has been overtaken bythe decision in R v Boutilier. I find no support in R v Boutilier for Mr. Parfitt’s contention that the circumstances of this matter justify thisCourt reducing the length of his LTSO in consideration of his allegedly unreasonable custodial sentence.

Moreover, appellatejurisprudence is to the contrary, wherein the distinction identified in R v L.M. between the fitness of the custodial sentence and of anassociated LTSO has been maintained since R v Boutilier (see, e.g.: R v Marshall, 2021 ONCA 28 at para 94, 153 OR (3d) 623, and R vC.J.J., 2022 ABCA 190 at paras 44–45; see also R v Bird, 2019 SCC 7 at para 151, [2019] 1 SCR 409, and R v Wilton, 2016 SKCA 131 atpara 38, which pre-date R v Boutilier). [10] I also observe that the majority in R v L.M. approved of the approach taken by the rehearing judge in this case by writing (atpara 52): [The sentencing judge] did not take L.M.’s period of incarceration into account when determining the length of his period of communitysupervision.

Instead, she focussed on the future, that is, on the need to protect the public from the risk that L.M. would reoffend. In myview, her analysis was flawless. [11] For these reasons, I conclude that the rehearing judge applied the proper legal principles when sentencing Mr. Parfitt under PartXXIV of the Criminal Code. [12] Moreover, I consider the rehearing judge’s findings when imposing a 10-year LTSO in the circumstances of this case to bereasonable (R v Currie, (SCC), [1997] 2 SCR 260 at para 33). The rehearing judge rejected Mr.

Parfitt’s submission fora sentence of “time served” plus a 5-year LTSO, finding that the relevant circumstances, including a positive development in Mr. Parfitt’sprospects of rehabilitation, called for a further 2-year term of imprisonment to be followed by a 10-year LTSO. [13] Mr. Parfitt’s criminal record and offending history show a career of escalating and erratic violence, sometimes involving illegaldrugs. He has violently offended against diverse victims.

His offences include a home invasion, multiple counts of intimate-partnerviolence committed against several partners, many instances of uttering threats of harm, torture or death, possession of prohibitedweapons, an aggravated assault on his mother, assault with a weapon (namely, a motor vehicle), and other assaults too heterogenous tobriefly describe. The predicate offence involved Mr. Parfitt’s efforts to collect a drug debt during which he overcame resistance andinvaded a home, assaulted its occupants, thwarted their attempts to call for help, and threatened to kill them. According to Mr.

Parfitt’scounsel on appeal, his client is now working full time as a construction safety officer and is doing well, but this, of course, was not theevidence before the rehearing judge. [14] Mr. Parfitt has had an anti-social attitude and had lived a criminal lifestyle while in the community before receiving his presentsentence. At the rehearing, Dr. Lohrasbe, a forensic psychiatrist, testified that Mr. Parfitt poses a high risk of reoffending violently but hasthe intelligence to make the changes necessary to reduce that risk. He opined that Mr.

Parfitt must slowly transition into the community ifhe is to successfully mitigate his risk of reoffending violently. On the basis of his careful consideration of the evidence, the rehearingjudge was not satisfied that Mr. Parfitt’s violent behaviour was intractable, but he was satisfied beyond a reasonable doubt that Mr. Parfittcontinued to pose a high risk of reoffending violently.

In my assessment, the record solidly supports the rehearing judge’s decision toimpose a two-year term of imprisonment followed by the maximum period of community supervision. [15] Lastly, I observe that the Criminal Code provides a pathway by which Mr. Parfitt might address the duration of his LTSO.Section 753.2(3) grants an offender and others the right to apply to the Court of King’s Bench “for an order reducing the period of long-term supervision or terminating it on the ground that the offender no longer presents a substantial risk of reoffending and thereby being adanger to the community”.

The fact that such relief is available under the Criminal Code once the offender can establish that the riskposed has been mitigated supports my conclusion that it would be improper for this Court to interfere with the term of the LTSO in themanner proposed by Mr. Parfitt in this appeal. I would simply observe that Mr. Parfitt’s current situation, as described by his counsel,would presumably be relevant in an application under s. 753.2(3). [16] For all of these reasons, I would decline to interfere with the length of the LTSO imposed on Mr. Parfitt. I would dismiss thisappeal. “Caldwell J.A.” Caldwell J.A.

I concur. “Jackson J.A.” Jackson J.A.

I concur. “McCreary J.A.” McCreary J.A.