R v Burnouf, 2023 SKCA 21

Court of Appeal for Saskatchewan Docket: CACR3613 Citation: R v Burnouf , 2023 SKCA 21 Date: 2023-02-08 Between: Clinton Burnouf Appellant And His Majesty the King Respondent Before: Caldwell, Tholl and Kalmakoff JJ.A. Disposition: Leave to appeal granted; appeal dismissed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Kalmakoff On appeal from: Provincial Court (SK), Regina Appeal heard: January 19, 2023 Counsel: Clinton Burnouf on his own behalf Grace Hession David for the Respondent Tholl J.A. I.

INTRODUCTION [ 1 ] Clinton Burnouf was found to be a dangerous offender in 2016. He was sentenced to a determinate period of incarceration followed by a long-term supervision order [LTSO]. His determinate sentence has expired and his LTSO commenced on June 11, 2020. In August of 2022, he pleaded guilty to violating his LTSO for a second time and was sentenced to 18 months of incarceration, minus credit for pre-sentence custody calculated on a 1 to 1 basis. Mr.

Burnouf appeals that sentence, asserting that the sentencing judge failed to consider Gladue factors, erred in not granting 1.5 to 1 credit for the time he spent in custody before sentencing, and erred by not taking into account a separate period he spent in custody arising out of an unrelated charge. [ 2 ] The Crown concedes that the sentencing judge erred by failing to consider Gladue factors and agrees that Mr. Burnouf must be sentenced afresh. There is no merit in Mr.

Burnouf’s arguments regarding enhanced credit for pre-sentence custody or an adjustment to his sentence based on the time he spent in custody on a different charge. [ 3 ] Once all the circumstances are considered, it is my view that 18 months of incarceration is appropriate for this offence and this offender. As a result, the appeal must be dismissed. II. BACKGROUND [ 4 ] On September 23, 2016, Mr. Burnouf was designated as a dangerous offender pursuant to s. 753 of the Criminal Code : R v Burnouf , 2016 SKPC 122 [ Burnouf 2016 ].

The predicate offence was an aggravated assault upon his domestic partner in which he used a knife and inflicted lasting physical and emotional harm to the victim. He concurrently pleaded guilty to making child pornography and three counts of breach of a recognizance. Mr. Burnouf was sentenced to a determinate global sentence of 8.5 years and, after receiving a 5- year credit for pre-trial custody, had 3.5 years left to serve. In addition, a 7-year LTSO was imposed. [ 5 ] Mr. Burnouf’s compliance with conditions after the imposition of his sentence was abysmal.

He was released on statutory release three times before the carceral portion of his sentence expired. He promptly violated the conditions each time, resulting in him coming back into custody. With an additional sentence of 60 days of incarceration for being unlawfully at large during his second release, Mr. Burnouf was ultimately held until warrant expiry on June 11, 2020. His LTSO commenced on that date. One of its conditions required that he not consume non-prescription drugs. Another required him to report certain relationships. [ 6 ] On October 5, 2020, Mr.

Burnouf’s LTSO was suspended for failing to divulge a personal relationship, and he spent 90 days in custody. A charge for that breach was not pursued and he was released on January 1, 2021. [ 7 ] On January 15, 2021, Mr. Burnouf tested positive for methamphetamine, and, on the next day, he tested positive for methamphetamine and amphetamine. As a result, he came back into custody and, on April 29, 2021, pleaded guilty to breaching a term of his LTSO, contrary to s. 753.3(1) of the Criminal Code . He was sentenced to one year of incarceration, less credit for time spent in custody prior to his guilty plea.

It is not alleged that the judge who sentenced him for that offence did not consider the relevant Gladue factors. Mr. Burnouf was released in September of 2021. [ 8 ] In November of 2021, Mr. Burnouf came back into custody after being charged with an offence arising out of an incident where another individual shot Mr. Burnouf’s partner with an air gun, and Mr. Burnouf engaged with the assailant physically. That charge was eventually stayed, and he was released on January 31, 2022. He resumed residing at the Oskana Community Correctional Centre on that date. [ 9 ] On March 2, 2022, Mr.

Burnouf again tested positive for amphetamine and methamphetamine. He was charged with

breaching his LTSO, contrary to s. 753.3(1) of the Criminal Code and pleaded guilty to that offence on August 30, 2022. Mr. Burnouf wassentenced to 540 days (18 months), less credit on a 1 to 1 basis for the 176 days he spent in custody prior to sentencing. [10] The sentencing judge did not consider s. 718.2(

e) of the Criminal Code and R v Gladue, (SCC), [1999] 1 SCR688, in determining the appropriate sentence, despite the presence of Gladue factors. The Crown concedes that this omission constitutesan error in principle and that it had an impact on Mr. Burnouf’s sentence. As such, this Court must sentence Mr. Burnouf afresh, withoutdeference to the sentencing judge: R v Lacasse, 2015 SCC 64 at para 11, [2015] 3 SCR 1089, and R v Courtoreille, 2022 SKCA 110 atparas 16–18. However, this does not mean that the sentence must necessarily change as a result: R v Omer, 2022 SKCA 147 at para 40. III. ISSUES [11] The issues in this matter are as follows: (

a) What is the appropriate sentence for Mr. Burnouf? (

b) Is Mr. Burnouf entitled to credit on a 1.5 to 1 basis for time spent in custody prior to sentencing? (

c) Is Mr. Burnouf entitled to credit or some form of consideration in relation to the time he spent in custody arising out of anunrelated criminal charge that was stayed prior to his commission of the current offence? IV. ANALYSIS A. Appropriate sentence [12] Mr. Burnouf was convicted of breaching his LTSO by violating a term that required him to not consume non-prescriptiondrugs. He suggests that his sentence for that breach, before credit for pre-sentence custody, should have been 12 to 15 months.

The Crownasserts that the 18-month sentence was appropriate. [13] In crafting a fit sentence, I have considered the purpose, objectives, and principles set out in s. 718 to s. 718.2 of the CriminalCode. Protection of the public is an important objective when determining a sentence for a breach of an LTSO. However, it should notautomatically become the paramount goal to the point of dominating over rehabilitation considerations: R v Ipeelee, 2012 SCC 13 atpara 50, [2012] 1 SCR 433.

Both rehabilitation and the protection of the public are primary considerations when sentencing for a breachof an LTSO: R v Wheatley, 2016 BCCA 397 at para 12. [14] Looking first at the gravity of the offence, I note that the maximum penalty for this offence is 10 years of imprisonment:s. 753.3(1) of the Criminal Code. Although the consumption of drugs while prohibited from doing so may not, on the surface, appear to begrave misconduct, such a characterization ignores the underlying nature of the offence and the context in which it occurs.

A breach of anLTSO is generally seen as a serious offence: R v Bird, 2019 SCC 7 at para 37, [2019] 1 SCR 409. LTSO’s are put in place to rehabilitatethe offender, reintegrate them into society, and to protect the public: Ipeelee at para 50. The conditions are carefully crafted to assist inachieving these goals, and the breach of such a condition interferes with these objectives, impeding rehabilitation and exposing the publicto risk: Bird at para 38. [15] As noted by the Crown in its written submissions, the use of intoxicants has been an underlying factor in Mr.

Burnouf’scommission of serious personal injury offences in the past. Those offences have been facilitated and aggravated by substance abuse. In2016, Kalenith P.C.J. found Mr. Burnouf’s behaviour had reached the level that the public needed to be protected through the impositionof a lengthy period of incarceration followed by a 7-year LTSO. The condition of his LTSO prohibiting the use of non-prescription drugsis crucial to managing Mr. Burnouf’s risk of reoffending.

A breach of a condition of the LTSO that is directly aimed at controlling conductthat leads to the commission of serious personal injury offences, thus going to the core of the LTSO, carries with it a high level of gravity. [16] Mr. Burnouf’s lengthy criminal record, extensive history of non-compliance with conditions, and the previous breach of hisLTSO arising out of the same type of conduct are aggravating factors. [17] Turning to Mr. Burnouf’s personal circumstances, mitigating factors, and his moral culpability, I note that Mr. Burnouf has hada difficult past.

There are experiences in his life that affect his level of personal responsibility. Regarding factors that must be consideredpursuant to s. 718.2(

e) of the Criminal Code and Gladue, the following excerpt from the dangerous offender decision summarizes hiscircumstances (Burnouf 2016): [28] Mr. Burnouf is a Métis person with cultural and family connections to Beauval, Saskatchewan. He had ongoing exposure to domesticviolence as a child and pre-teen, transience during his childhood including time in Social Services’ care, experience with excessiveparental discipline as a child, exposure to drug and alcohol abuse in the family home as a child and his own substance abuse issues as anadult. [18] Mr.

Burnouf was the last member of his family to attend residential school and was affected by that experience. He submits thathis life has been a continuation of those institutionalized circumstances. Mr. Burnouf also experienced significant hardship in his home lifegrowing up. He referred to his background as the “cornerstone” of all his offending. [19] Mr. Burnouf stated that it is difficult to live at the Oskana Community Correctional Centre in Regina because he grew up livingin Beauval. This is a very different lifestyle than that which he has previously lived. Mr.

Burnouf had been able to find employment inRegina doing snow removal prior to his most recent incarceration and is distressed that he could not resume that work this winter. [20] Alcohol became a prominent part of Mr. Burnouf’s life beginning at age 8. He has a long-standing substance abuse problem.

Mr. Burnouf indicates that he wants to overcome his struggles with substances and eloquently states that it is something that he canunlearn but that it is going to take time to overcome. It is obvious that his addictions drove the offence in question. [21] Taking all the above into account, it is my view that Mr. Burnouf’s degree of responsibility is somewhat lowered by Gladuefactors, his life experiences, and his addictions, but it remains high. I find the following excerpt from R v Jordan, 2021 ONCJ 460, aff’d2022 ONCA 649, relevant to the crafting of a fit sentence for Mr.

Burnouf: [105] There does not exist a large body of reported sentencing cases for breach of a LTSO. The case law generally demonstrates thatbreaching a LTSO condition is viewed as a serious criminal offence. A LTSO breach is certainly not a breach of probation. While all ofthe sentencing tools are available, Courts tend to impose exemplary sentences in recognition of the fact that the defendant has already beendesignated a long-term or dangerous offender and has breached conditions designed to address protection of the public, rehabilitation, andre-integration into society: Ipeelee, at para. 47.

I also endorse the pragmatic approach expressed in Middleton [2019 ONCJ 280], thatwhere an offender has been doing well and engaging in meaningful rehabilitation, a breach might be viewed as a “blip” deserving a shortersentence. Where the offender demonstrates consistent non-compliance, lengthier jail sentences are required: Middleton, at para. 42. [22] In the matter at hand, Mr. Burnouf has not been doing well with conditions. This latest breach is not a mere blip in otherwisepositive conduct. The circumstances here require a meaningful sentence. The sentence imposed for the first breach of Mr.

Burnouf’sLTSO was 12 months. The repetition of the same offence, less than one year after having been sentenced – on the heels of multiplestatutory release violations – calls for a stronger penalty than what was imposed for the first breach. [23] In the end, I find that a proportionate sentence for this offence and this offender is 18 months of incarceration, less a credit fortime spent in custody before sentencing. B. Credit for time spent in pre-sentence custody for this offence [24] Mr.

Burnouf spent 176 days in custody after having been charged with the breach in issue and before he was sentenced.Relying on R v Bourdon, 2012 ONCA 256, 110 OR (3d) 168, R v E.W., 2016 SKQB 226, R v Gatza, 2016 ABPC 37, and R v Gamble,2021 SKPC 64, the sentencing judge determined that the appropriate credit for this time was on a 1 to 1 basis. [25] Mr. Burnouf asserts that he should receive 1.5 to 1 credit against his sentence in the same manner as such credit is generallygiven for sentences for other offences.

He notes that he received enhanced credit when he was sentenced for his first breach of his LTSO.The Crown argues that the appropriate credit was given in the matter at hand. [26] In my view, the reasons provided by Juriansz J.A. in Bourdon are fully dispositive of this issue: [17] I agree with the Crown’s submission that it should be kept in mind that the time a long-term offender spends in pre-sentence custodycannot be regarded as “dead time”, as the LTSO continues to run until conviction. As Justice Masse put it in R. v. Nelson, [2007] O.J.

No.5704, 2007 Carswell 9456 (C.J.), at paras. 30–31: [A]lthough the long-term supervision order is interrupted while an offender serves a sentence, it continues to run until such time assentence is actually pronounced. It would be an anomalous result for an offender to receive both a credit towards his long-termsupervision order for pre- sentence custody as well as an enhanced credit towards sentence. That could not have been the intention ofParliament. [18] The issue has been considered by this court in one previous case, R. v. Ipeelee (2009), 2009 ONCA 892 , 99 O.R. (3d) 419,[2009] O.J.

No. 5402 (C.A.), at para. 10 (appeal allowed on other grounds [2012] S.C.J. No. 13, 2012 SCC 13), where the court said:[page 172]

(3) Did the sentencing judge err by refusing enhanced credit? [10] The sentencing judge refused to give the appellant enhanced credit for the six months he spent in pre-sentence custody. In thecircumstance of this case, I see no error. As the sentencing judge noted, the time under the long-term supervision order continues to runwhile the offender is in pre-sentence custody for breach of a condition of the order.

Moreover, the lack of credit for time served towardsearly release, a factor usually cited as a reason for enhanced credit, is less relevant here as the appellant is unlikely to be granted earlyrelease. [19] One goal of an LTSO [is] to rehabilitate offenders and reintegrate them into the community by supervising them after they arereleased from imprisonment. If the offender is in custody awaiting trial on charges of breaching the LTSO, nothing can be accomplishedtowards reintegrating the offender into the community.

Some rehabilitation is possible because long-term offenders, unlike other accusedpersons, can be transferred to a federal penitentiary with treatment programmes available while awaiting sentence (s. 135(2), Correctionsand Conditional Release Act, S.C. 1992, c. 20, as amended). The lack of access to such programs is considered a rationale for enhancedcredit for time in pre-trial custody.

In this case, it is not clear why the appellant was not transferred to a federal penitentiary. [27] Based on this reasoning from Bourdon, I agree with the sentencing judge that credit for pre-sentencing custody at a rate of 1 to1 was appropriate. As a result, the proper sentence is 18 months (540 days), minus a credit of 176 days for time spent in custody prior tosentencing, for a sentence going forward from August 30, 2022, of 364 days. C. Credit for time spent in custody for an unrelated offence [28] Mr.

Burnouf submits that he is entitled to a credit against his current sentence, or at least some form of other consideration, forthe three months he spent remanded on the unrelated charge arising out of the air gun incident, which was stayed prior to the commissionof the offence for which he is now being sentenced. He asserts that he received nothing in recognition of that time and, in effect, arguesthat he should be able to carry it forward to be used to mitigate a subsequent sentence. He requests a credit of 4.5 months against his

current sentence. [ 29 ] Leaving aside two threshold problems – that this issue was not raised with the sentencing judge and there is no evidence supporting it – it is my view that this ground of appeal has no merit. [ 30 ] Section 719(3) of the Criminal Code permits a judge to take pre-sentence custody into account when determining an appropriate sentence: 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. [ 31 ] As can be seen from s. 719(3) , in order for a court to take it into account and grant credit, the time spent in custody must be as a result of the offence .

While this phrase should not be interpreted narrowly, the time spent in custody must still be sufficiently linked to the offence for which the offender is being sentenced in order for credit to be granted: R v Barnett , 2017 ONCA 897 at paras 27–32 , 356 CCC (3d) 480. See also R v Mehari , 2021 SKCA 139 at paras 39–45 . The offence for which Mr. Burnouf is being sentenced has no connection to the earlier time he spent in custody. [ 32 ] Mr.

Burnouf is not entitled to save his remand time arising out of unrelated circumstances and then have it applied in a manner akin to pre-sentence custody to reduce a sentence for a subsequent crime: R v Wilson , 2008 ONCA 510 at paras 43–45 , 236 CCC (3d) 285, and Barnett at paras 33 and 37 . It is not difficult to imagine the mischief that could accrue if persons were allowed to bank unused remand time, knowing that it could be used to reduce or avoid a sentence for a new, as of yet uncommitted, offence.

The availability of such banked time would encourage criminal activity by persons who were not convicted after having spent time in custody prior to their trial. The law cannot develop in a manner that would encourage a calculation of how best to spend such a credit. [ 33 ] This is not to say that time spent in custody in relation to an unrelated offence is automatically irrelevant.

In Wilson , Rosenberg J.A. described how such circumstances might be considered when determining a fit sentence: [46] That said, I accept that a sentencing judge is entitled to take into account time spent serving another sentence as part of the complete picture for understanding a particular offender. For most offences there is a very broad range of what constitutes a fit sentence and events that transpired during the time an offender was serving a sentence for another offence might well affect where within that range the offender should be sentenced.

For example, if the accused had a serious drug problem that made him a danger to the public, evidence that he received treatment while serving his sentence would be an important consideration in fixing the appropriate sentence. Or, it may be that an offender could not serve a prior sentence in a facility that had appropriate treatment, training or other rehabilitation opportunities because he was awaiting trial on another charge. In effect, by reason of the fact that he was awaiting trial, the circumstances under which he served the sentence were harsher than they might ordinarily be.

I would think these are circumstances the sentencing judge could take into account, if made aware of them, because they relate directly to the offence for which the offender is being sentenced. [ 34 ] However, in the matter at hand, there is nothing in the facts of the three-month prior incarceration that has relevance to the crafting of the sentence for the offence for which Mr. Burnouf is now being sentenced. This ground of appeal has no merit. No credit shall be given for this prior period of custody. V. CONCLUSION [ 35 ] Leave to appeal is granted, but the appeal is dismissed.

While the sentencing judge erred by not considering the Gladue factors, a fit sentence is the same as the one he imposed. “Tholl J.A.” Tholl J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.