



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Russell,









2019 BCCA 51




Date: 20190124

Docket: CA45261

Between:

Regina

Respondent

And

Dennis Dwight
Russell

Appellant




Before:



The Honourable Madam Justice Newbury

The Honourable Madam Justice Stromberg-Stein

The Honourable Madam Justice Fisher




On appeal from:  An
order of the Provincial Court of British Columbia, dated
March 2, 2018 (
R. v. Russell
, Vancouver Dockets 247967-1 and 248051-1).

Oral Reasons for Judgment




Counsel for the Appellant:



J. Whysall

C.D. Waker

S. Dickson, Articled
  Student





Counsel for the Respondent:



C.E. Tomusiak





Place and Date of Hearing:



Vancouver, British
  Columbia

January 24, 2019





Place and Date of Judgment:



Vancouver, British
  Columbia

January 24, 2019








Summary:

Mr. Russell entered
guilty pleas to breach of a long term supervision order and voyeurism. He was
sentenced to 365 days for the LTSO breach (less 356 days for pre-sentence
custody credit), and 18 months consecutive for voyeurism followed by three
years probation. Mr. Russell appeals his sentence on the basis that the
sentencing judge did not give him the correct pre-sentence custody credit,
imposed a demonstrably unfit sentence, and erroneously imposed a three-year
probation order. Held: appeal allowed to the extent of providing an additional
27 days for pre-sentence custody credit at a rate of 1.5:1, reducing the length
of the probation to 18 months, and varying certain terms of the probation
order. The sentencing judge properly considered the sentencing principles and
the circumstances of the offences and offender; the sentence was not
demonstrably unfit.

Introduction

[1]

STROMBERG-STEIN J.A.
: Dennis Dwight Russell entered guilty
pleas to breach of a long term supervision order (LTSO), contrary to s. 753.3(1)
of the
Criminal Code
, R.S.C. 1985, c. C-46, and voyeurism, contrary
to s. 162(1)(c) of the
Criminal Code
. He was sentenced to 365 days
for the LTSO breach (less 356 days for pre-sentence custody credit) and 18
months consecutive for voyeurism followed by three years probation.

[2]

Mr. Russell appeals his sentences on the basis that the
sentencing judge did not give him the correct pre-sentence custody credit,
imposed a demonstrably unfit sentence, and erroneously imposed a three-year
probation order.

[3]

The position of the Crown is that pre-sentence custody credit at
a rate of approximately 1.25:1 is reasonable and fair, the sentence is not
demonstrably unfit, and there is no error in the length of the probation order.

[4]

For the reasons that follow, I would allow the appeal to the
extent of providing an additional 27 days for pre-sentence custody credit at a
rate of 1.5:1, reducing the length of the probation to 18 months, and varying
certain terms of the probation order.

Standard of Review

[5]

An appellate court is constrained on a sentence review, as this Court
will not interfere with a sentence unless (1) the sentencing judge committed an
error in principle, failed to consider a relevant factor, or erroneously
considered an aggravating or mitigating factor that had an impact on sentence;
or (2) the sentence is demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64.

[6]

A demonstrably unfit sentence is one that is clearly unreasonable or
in substantial and marked departure from the sentences customarily imposed for
similar offenders committing similar crimes:
R. v. Shropshire
, [1995] 4
S.C.R. 227 at 249;
R. v. M.(C.A.),
[1996] 1 S.C.R. 500 at 565, 567.

Circumstances of the Offences

[7]

The same facts gave rise to both
offences.

[8]

On April 25, 2017, a Metrotown
Mall security officer observed that when young girls walked by Mr. Russell
would shuffle his backpack. At one point, Mr. Russell placed his open
backpack under the skirt of a young female standing in line at the food court.
Mall security officers arrested Mr. Russell and called the police. The
police determined that Mr. Russell had a digital camera in his backpack as
well as a number of digital storage cards containing approximately 63 videos of
views up the skirts of approximately 85 young women or girls, some wearing
school uniforms. One digital storage card was labelled Catholic School and
another labelled Lulu. Some of the videos apparently depicted Mr. Russell
following young women or girls from location to location.

[9]

At the time of his arrest for voyeurism,
Mr. Russell was bound by a LTSO. His LTSO was suspended upon arrest and he
has been in custody since his arrest. On June 20, 2017, he was charged with the
voyeurism offence. On August 21, 2017, he was charged with breach of the LTSO
for failing to obey the law and keep the peace.

[10]

On January 15, 2018, Mr. Russell entered guilty pleas to both
charges. Pre-sentence and psychological assessment reports were ordered. He was
sentenced on March 2, 2018. At the sentencing hearing, the Crown sought a further
21 months for both offences, in addition to credit for 356 days for
pre-sentence custody, and three years probation. Mr. Russell sought a
global sentence of time served and three years probation.

[11]

None of the victims were
identified so there were no victim impact statements. Crown counsel advises the
Crown made no efforts to identify the victims due to the potential impact on
the victims had they become aware of the invasion of their privacy.

Circumstances of the Offender

[12]

At the time of the offences, Mr. Russell
was 71 years old and was serving a 10-year LTSO that was imposed following his
2005 convictions for two sexual assaults for which he received three-year
concurrent sentences. In addition, he received one year concurrent for juvenile
prostitution and six-month concurrent sentences for three counts of failure to
comply with probation. The offences involved 15-year-old and 13-year-old girls.

[13]

In addition to the 2005
convictions, Mr. Russell has the following criminal convictions:

1.

1987: sexual assault of a 14-year-old girl:
conditional discharge and two years probation;

2.

1998: possession of child pornography (69 Polaroid
photographs of apparently pre-pubescent girls): five months and three years
probation;

3.

1999: three counts of juvenile prostitution involving
a 15-year-old girl, two sexual assaults involving 12-year-old and 13-year-old
girls, and failure to comply with probation (for breach of a no-contact
condition with persons under 18 years old): six months on each count
consecutive;

4.

2002: s. 811 breach (for bringing 13-year-old
girls to his apartment and offering them money and alcohol): time served (six
days) and two years probation;

5.

2003: failure to comply with probation and s. 811
breach: time served (15 days) and three years probation.

[14]

Mr. Russell had no
convictions between 2005 and 2017 but he had a number of LTSO suspensions for:
obtaining a drivers license, driving without his probation officers approval,
being at an erotic massage parlour, owning and driving a truck without permission,
inappropriate comments to female staff, providing false information on sign-out
sheets, owning a boat, shoplifting, and possessing alcohol. The first time he
was charged with a LTSO breach was for the events that occurred on April 25,
2017.

[15]

The psychological assessment
report indicates Mr. Russell represents a high risk to commit a future
sexual offence, likely relating to voyeurism, but it could also be a contact
offence against underage girls. The pre-sentence report notes that community
supervision, incarceration, and sex offender programs have not been successful
in reducing or deterring Mr. Russells sexual reoffending. Both reports
outline a relatively dim view of Mr. Russells character as well as his lack
of cooperation and compliance. Mr. Russell has a sexual predilection for
young girls and petite women and has been diagnosed with hebephilia. He has also
been diagnosed with narcissistic personality disorder.

[16]

He says he has a support system of
family and friends but claims his support system broke down, which led to his
most recent offending. I note the comments in the psychological report that he
tends to externalize responsibility for his conduct.

Sentencing Reasons

[17]

The judge held that balancing the protection of the public with rehabilitation
must be the focus of sentencing for the LTSO breach. Denunciation, deterrence,
and rehabilitation must be equally balanced for the voyeurism offence.

[18]

The judge noted there is a wide sentencing range for a LTSO breach: from
six months and up depending on the nature of the breach. A technical
(administrative) breach, such as being 15 minutes late past curfew or missing
an appointment, would attract a lesser sentence than what the judge called a
substantive breach, which would attract a higher sentence. The judge concluded
the breach in this case was substantive.

[19]

The judge identified the aggravating factors of the offences, including
the seriousness of the offences; that is, while bound by a LTSO, Mr. Russell
targeted approximately 85 young victims over a prolonged period of time, coupled
with his high risk of reoffending and his particularly egregious criminal
record involving sexually predatory behaviour towards young girls.

[20]

The judge recognised a number of mitigating factors, including Mr. Russells
guilty pleas. The judge accepted Mr. Russells expressed remorse but
commented,
He might not have a
great understanding of the depth of the wrongness or of moral culpability that
he needs to come to terms with: at para. 65.
The judge highlighted
Mr. Russells education, support system, and employment history as
positives. Additionally, he noted that Mr. Russells breach of national
paroles in the pre-sentence report were in fact suspensions of the LTSO: at para. 41.
Despite Mr. Russells suspensions, the judge acknowledged that Mr. Russell
had been in the community for many years without reoffending and recognized
there was a gap in his criminal record. He also considered that Mr. Russell
was assaulted while in custody and the impact incarceration had on his
financial, economic, and physical well-being.

[21]

The judge acknowledged the totality principle and considered Mr. Russells
age. However, he concluded that a sentence of time served (approximately 356
days) was insufficient. Therefore, he sentenced Mr. Russell to 365 days
(with credit for 356 days) for the LTSO breach, and 18 months consecutive followed
by 18 months probation for the voyeurism offence: at paras. 7581. He
then increased the probation order to three years after some discussion with
counsel and Mr. Russell.

[22]

The judge attached a number of conditions to Mr. Russells
probation order (at para. 83), which I will discuss below.

Issues

[23]

The issues on appeal are:

1.

Did the judge err in assessing credit for pre-sentence
custody?

2.

Did the judge impose a demonstrably unfit sentence?

3.

Did the judge err in increasing the probation order by
18 months?

Did the Judge Err in Assessing Credit for Pre-Sentence Custody?

[24]

At the sentencing hearing, both Crown counsel and defence counsel
agreed that Mr. Russell should receive credit of 356 days for pre-sentence
custody. Now
Mr. Russell submits the judge
erred because the total pre-sentence credit should be 383 days. This would
provide Mr. Russell credit for an additional 27 days. The error arises
from the failure of the judge to credit him for pre-sentence custody at a rate
of 1.5:1 from June 20, 2017, to January 15, 2018.

[25]

The Crown submits that the judge
did not err in apportioning the pre-sentence custody credit because Mr. Russell
was effectively granted enhanced credit at a rate of 1.25:1 for the period
prior to his plea (January 15, 2018) and granted enhanced credit at a rate of 1.5:1
thereafter. The Crown submits that while the credit was not at a rate of 1.5:1
during the period in dispute, the credit was nevertheless reasonable and fair.

[26]

Initially, the Crown took the position before the sentencing judge that Mr. Russell
should be credited on a 1:1 basis from his arrest on April 25, 2017, to his guilty
pleas on January 15, 2018. The Crown took the position that he would be
entitled to 1.5:1 credit for the time spent in custody from the date of plea
until sentencing. However, in the course of the defence submissions, Crown
counsel realized Mr. Russell had not been charged with the offences until
June 20, 2017, and August 21, 2017. Crown counsel advised the judge that while Mr. Russell
was not entitled to any pre-sentence credit for the pre-charge period he should
receive the same credit (356 days) as originally submitted and the excess could
reflect the hardships Mr. Russell experienced in custody.

[27]

The Crown on this appeal is not pressing the issue with respect to
pre-sentence credit but submits that at the end of the day Mr. Russell
ultimately received sufficient enhanced credit. However, this does not appear
to be a case where the judge exercised his discretion to grant Mr. Russell
1.25:1 credit. The judge accepted the assessment of counsel with the Crown
suggesting the excess could reflect the hardships Mr. Russell experienced
in custody. In my view, Mr. Russell should be entitled to credit of 1.5:1
for the time he spent in pre-sentence custody. That accords with the Crowns
position at trial that he was entitled to enhanced credit as well as the weight
of the authorities. I would credit Mr. Russell with an additional 27 days
on the basis of
R. v. Summers
, 2014 SCC 26.

Was the Sentence Demonstrably Unfit?

[28]

Mr. Russell submits his
sentences
are demonstrably unfit because the judge offended the totality principle by
imposing what effectively amounted to a global sentence of 905 days and three
years probation
.
Mr. Russell
submits that despite the aggravating factors of a criminal record and a history
of breaching conditions, the global sentence is excessive for the offences of
breach of the LTSO and voyeurism.

[29]

He cites
R. v. Dastagir
,
2018 MBPC 44 for the proposition that custodial sentences are not warranted in
voyeurism cases unless the circumstances involve a serious breach of trust or
other significant aggravating factors. He also takes issue with the judges
reliance on the psychological report which, he says, incorrectly states he
breached his LTSO on many occasions. He says the judge erroneously relied on
this as an aggravating factor in sentencing. Mr. Russell contends that in
light of the departure from the sentencing range for voyeurism and the reliance
on the unproven disputed allegation of repeated LTSO breaches, he should have
been sentenced to time served for the LTSO breach and 9 months on the voyeurism
offence followed by probation for 18 months.

[30]

The Crown submits the sentences were not
demonstrably unfit given the seriousness of the offences and Mr. Russells
related criminal history over the preceding three decades. The Crown maintains
the judge did not improperly rely on previous LTSO breaches, as the impugned
passage from the psychological report provides context to Mr. Russells
overall risk of reoffending, and the judge made clear in his reasons that he
was giving no weight to the LTSO suspensions.

[31]

The judge noted the seriousness of the LTSO breach. He acknowledged the
wide range of sentences available for failing to comply with a LTSO, which starts
at six months imprisonment for a technical breach. I note breaching a LTSO is an
indictable offence and the maximum sentence is up to 10 years. The judge found
that the breach in this case was substantive.

[32]

In my view, he correctly applied the principles set out in
R. v.

Ipeelee
,
2012 SCC 13 in assessing the severity of the breach. He considered the
circumstances and the nature of the breach in the context of Mr. Russells
criminal history and risk-management in the community. He balanced this with
prospects of Mr. Russells rehabilitation. The 12-month sentence that the
judge imposed for breach of the LTSO was not, in itself, demonstrably unfit in
the circumstances of this case.

[33]

With respect to the offence of voyeurism, the Crown proceeded by
indictment. Therefore, the maximum sentence is five years. The judge properly
considered the nature of the offence of voyeurism as a serious invasion of
privacy, reproducing the comments
of
Dhillon P.C.J. in
R. v. Bosomworth
, 2015 BCPC 7:

[12]      Judge Dhillons comments under victim impact
statements at paragraph 21, in considering the legal authorities when
sentencing for this type of offence, writes:

The central sentencing objectives
in this case are to denounce the unlawful conduct of voyeurism, deter the offender
and others from committing voyeuristic offences, and assist in [in that case] Mr. Bosomworths
rehabilitation

[13]      Under the analysis which was found at paragraphs
26, 36, and 38, there are comments about the moral gravity of the offence. It
was determined that Mr. Bosomworth thought his plan out, planned it in
advance. It was quite deliberate. He devised and carried out a means to spy on
and record the activities of other people, thereby invading their privacy.

[14]      At paragraph 38 Judge Dhillon really, I think,
makes the point quite clear when she writes:

It is my view that given the times
in which we live, where privacy in the public sphere has been eroded by the
prevalence of surveillance cameras or the ready deployment of cell phone
cameras in public places, the expectation of personal privacy in highly private
places must be protected.

[15]      She continues and writes:

The law must protect that privacy
by ensuring a deterrent and denunciatory sentence which sends the message that
a criminal record is likely to result if criminal acts involve a serious breach
of personal privacy

[16]      So
this was not a victimless crime, even though we do not have victim impact
statements. The impact on society when peoples privacy is invaded is apparent.

[34]

As the judge noted, the offence of voyeurism is not a victimless crime.
It involves a serious invasion of personal privacy.

[35]

In determining a fit sentence in the context of this particular offender
and his criminal history with young women and girls, the judge distinguished Mr. Russells
case from many of the case authorities that mostly involved first offenders: at
para. 10. The judge considered that Mr. Russells aggravating
circumstances were more significant than the offenders in the case authorities
he considered.

[36]

Voyeurism is a hybrid offence and encompasses a broad spectrum of
offending conduct. Therefore, it is difficult to establish a range of sentences
customarily imposed for similar offenders committing similar crimes:
M.(C.A.)
at 567. Martin P.C.J. in
Dastagir
provides a useful summary of a number
of cases when considering an appropriate sentencing range. While illustrative
of available sentencing ranges, many of the case authorities in
Dastagir
and
referred to by counsel are helpful but not binding.

[37]

R. v. Berry
, 2015 BCCA 210 provides the most authoritative
guidance for sentencing for voyeurism offences in this province. In
Berry
,
a nine-month consecutive sentence was imposed in conjunction with a two-year
sentence for sexual assault. In that case, this Court upheld sentences of two
years imprisonment for sexual assault, nine months consecutive for voyeurism involving
his spouse, and two months concurrent for voyeurism against another victim. Mr. Berry
had an unrelated record and was considered a low to moderate risk to reoffend,
but the offences involved a breach of trust.

[38]

In
R. v. McFarlane
, 2018 MBCA 48, the Manitoba Court of Appeal
commented that the range of sentences for a first offender who pleads guilty to
voyeurism is between a discharge and 12 months imprisonment: at para. 25.
However, there are other cases where a sentence of two years imprisonment has
been imposed:
R. v. T.L.
, 2018 ONCJ 107 (consecutive);
R. v. White
,
2015 MBPC 20 (concurrent); and one case where an 18-month global sentence and
three years probation was imposed
R. v. D.R.W.
, 2016 ONCJ 171.

[39]

As can be seen, the case authorities reveal a broad range of sentences
for voyeurism  from a conditional discharge, to a suspended sentence, to a
conditional sentence order, up to two years imprisonment. Cases at the higher
range generally involve more serious offences and offenders in conjunction with
the offence of voyeurism. A lengthy custodial sentence is reserved for
egregious conduct and often where the offence is committed in conjunction with
other serious offences, in which case the sentence is generally consecutive.

[40]

I acknowledge Mr. Russell was placed at the high end of the
sentencing range, but in my view the judge made no error in doing so given the
many aggravating factors in his case. When Mr. Russell was arrested for
voyeurism, he was bound by a LTSO, which was imposed for serious sexual
offending against young girls. His criminal record involves serious sexual
offending against young girls. The judge considered the circumstances and the
nature of the offences in the context of Mr. Russells criminal history,
including a history of breaching conditions. The judge considered his
risk-management in the community, which he balanced with the prospects of Mr. Russells
rehabilitation described in the psychological assessment and pre-sentence
reports. Custodial and community supervision have not successfully reduced or
deterred Mr. Russells sexual reoffending given his lack of cooperation
and compliance. He has been diagnosed with hebephilia and represents a high
risk to reoffend against young girls.

[41]

The decision of the sentencing judge to impose a consecutive sentence is
a discretionary decision and is entitled to deference. The judge was live to
the sentencing principles of proportionality and totality. I am of the view
that the 18-month sentence for the offence of voyeurism, consecutive to the
one-year sentence for breach of the LTSO (less credit for over one year of
pre-sentence custody), having regard to the circumstances of the offences and
this offender, as well as the relevant principles of sentencing and the case
authorities, is not demonstrably unfit.

Did the Judge Err in Increasing the Term of the Probation Order?

[42]

Mr. Russell submits the judge
erred in revisiting and extending his probationary period from 18 months to
three years after the judge stated that a probationary period over 18 months
would be unfair.

[43]

The Crown says the judge did not
err in the length of the probation order, as it was apparently consented to by Mr. Russell
and, in any event, reflected the length of the order that both counsel had
originally suggested in their sentencing submissions.

[44]

The judge attached the following conditions to Mr. Russells
probation order (at para. 83):

(1)        You must
report immediately in person to -- well, we say report within 72 hours of your
release from custody to a probation officer at 275 East Cordova Street,
Vancouver, B.C., and after that you must report as directed by the probation
officer.

(2)        If at any
time prior to the expiration of this order you are arrested, detained, or have
served a sentence for another offence, you must report to the probation officer
within two business days of your release from custody.

(3)        You must
reside at a residence approved in advance by the probation officer. You must
provide your probation officer with your phone number and you must not change
your residence or your phone number without written permission from your
probation officer.

(4)        You must
have no contact or communication, directly or indirectly, with any person under
the age of 18 years.

(5)        You must not
go to any public park, public swimming area, or community centre where persons
under the age of 18 years are present or can reasonably be expected to be
present, or a library, daycare centre, school ground or playground, except in
the immediate presence of a responsible adult approved of in advance by your
probation officer and only after he or she has been informed by your probation
officer of this order, your history as described in your criminal record, and
these reasons for judgment. A copy of these reasons for judgment must be
transcribed and provided to the probation officer.

(6)        You must not
attend any locations where sex trade workers are known to frequent, as well as
massage facilities not licenced by provincial health authorities.

(7)        You must not
engage in activities, volunteer work or employment that could bring you in
contact with persons under the age of 18 years without written permission of
your probation officer, and when so engaged, you must carry this permission on
your person.

(8)        You shall
immediately report to your probation officer the names and contact information
of all relationships you have or establish, whether casual, intimate or
otherwise, with adults who have family members who are under the age of 18
years, and not continue those relationships until your probation officer has
informed that person of your history and described in your criminal record and
these reasons for judgment and with the permission of your probation officer.

(9)        You must not
associate or have a relationship with anyone named by your probation officer if
your probation officer has reasonably determined the relationship or
association to be a risk to yourself or others, or to be detrimental to your
programming, counselling, reintegration into the community, or a risk to the
protection of society.

(10)      You must not
possess or consume alcohol, drugs or any other intoxicating substance except in
accordance with a medical prescription.

(11)      You must
attend, participate in and successfully complete any intake, assessment,
counselling or program as directed by the probation officer. Without limiting
the general nature of this condition, the intakes, assessments, counselling, or
programs may relate to alcohol or drug abuse, mental health or sexual offence
prevention.

(12)      Having
consented, you must do the following:

(1)        at the direction of your probation
officer report to the forensic psychiatric service or elsewhere for any intake,
assessment, counselling or treatment;

(2)        attend all scheduled appointments
with your doctor, psychiatrist and counsellor;

(3)        take all medications prescribed to
you;

(4)        give your doctor, psychiatrist and
counsellor a copy of this order;

(5)        you must provide your probation
officer/conditional sentence supervisor with the names, addresses and phone
numbers of your doctor, psychiatrist and counsellor;

(6)        tell your doctor, psychiatrist and
counsellor that if you do not follow any terms of this order, he or she is to
inform your probation officer. If you decide not to follow these directions,
you must immediately report to your probation officer or at least at the very
latest report the following business day and tell your probation officer.

(13)      You must sign any waiver of confidentiality or
release of information forms as will enable your probation officer, counsellors
or treatment providers to monitor your attendance, and completion of any
intake, assessment, counselling or treatment programs, and to collaboratively
discuss your treatment needs.

(14)      You shall not own or operate a vehicle, boat or
watercraft or mobile home except for such purpose and such times as approved of
in advance and in writing by your probation officer, except in case of a
medical emergency and at which time you must travel directly to the hospital or
medical treatment centre.

(15)      You must not possess any electronic device
capable of storing digital or audio media.

[45]

Immediately after, the judge indicated he had concluded his reasons for
judgment: at para. 85. However, defence counsel then queried whether the
judge had considered the overlapping nature of the LTSO and the probation
order. The ensuing discussion led to Crown counsel requesting that the judge
extend the 18-month probation to three years, with the first 18 months to
include all the conditions, but the last 18 months to include only the
protective conditions (4, 5, 6, 7, and 8) for the public interest: at para. 104.
The judge first said, I dont think it is unreasonable what you are
suggesting: at para.112. Defence counsel commented that it is very likely
that Mr. Russell will be put on some sort of protective conditions at the
expiry of the order in any event (at para. 113) and noted that having to
report to a probation officer could be confusing. Then defence counsel
questioned the need for the no-alcohol condition (condition 10) in the
probation order as there was no suggestion that alcohol was involved in the
offences: at para. 116. The judge said he was not going to get rid of
that condition because he had no idea what triggered Mr. Russells
behaviour: at para. 117. The judge then said:

[118]    I
am going to decline to impose a further period of probation. In my view, there
has to come a time when he has to prove to the people that he is doing time
for, his community, and his probation officer, that he can abide by conditions,
and he has got -- he has done a year in custody. He is going to do another 18
months. That is a year and a half, and he is going to do another year and a
half, 18 months. That is a total of four years which his behaviour is going to
have been monitored.

[119]    If
the Crown is not satisfied with his behaviour between now and the time all that
is completed, it is up to the Crown to come back and bring another long-term
supervision order. I think it is unfair to almost use the sentencing process as
a backdoor mechanism to control his behaviour for an extended time period.

[120]    The crime that
he committed deserved a significant sentence, and I think keeping his behaviour
monitored for a grand total of four years is fairly significant. So I am going
to decline to impose any further conditions. He will be bound by those
conditions upon the completion of his sentence. Unless defence wants to agree
to it, if there is some sort of --

[46]

Despite the judge affirming the 18-month probation term for a second
time, defence counsel indicated she would agree to the no-alcohol condition
coming off if they agree to the 18 months. The judge and defence counsel
negotiated the matter further and then the judge addressed Mr. Russell:

[129]    Mr. Russell,
how about we give you the benefit of the doubt that you can have a beer when
you are watching a ballgame sitting with your friend, but we are going to keep
conditions for a period of three years that keep you away from young people.

[130]    THE
ACCUSED: Yes.

[131]    THE
COURT: Is that fair?

[132]    THE
ACCUSED: Im a teetotaler. I dont drink.

[133]    THE
COURT: No, but its late in the day. I am just wanting to make sure you are
okay with that.

[134]    THE
ACCUSED: I dont have any problems with the condition on my alcohol consumption
because I dont drink anything.

[135]    THE
COURT: Do you have any conditions on the idea of restricting your liberty for a
period three years not to be around young people.

[136]    THE
ACCUSED: No.

[137]    THE
COURT: Okay. So we are going to do that then. We are going to adjust the
probation order to be for a period of three years. Can we have a three-year
probation order with an 18-month further period of custody?

[138]    MS. SMITH:
I -- yes.

[139]    THE COURT: Okay.

[47]

Following this discussion with Mr. Russell, the judge imposed a
three-year probation order with the first 18 months to include all the
conditions as originally described, except condition 10 was eliminated, and the
last 18 months to include only the protective conditions (conditions 4, 5, 6,
7, and 8).

[48]

In my view, in the circumstances,
it was an error in principle for the judge to extend the probationary term from
18 months to three years. The judge had already sentenced Mr. Russell. The
judge recognized it is unfair to almost use the sentencing process as a
backdoor mechanism to control [Mr. Russells] behaviour for an extended
time period: at para. 119. It has not been argued that the judge was
functus
,
but in my view it was improper for the Crown to request the judge to double the
term of probation, just as it was improper for defence counsel to ask him to
eliminate the no-alcohol condition. This led to bartering one request against
the other. Initially, the judge declined to increase the probationary term because
doing so would mean Mr. Russells behaviour would have been monitored for effectively
four years. The judge said it was up to the Crown to obtain another long term
supervision order if the Crown felt it was necessary. While the judge purported
to get Mr. Russells consent to double the probationary term, it is not at
all clear from the transcript that Mr. Russell consented. Judges should
avoid getting into protracted discussions with counsel that could be seen as
negotiations after judgment has already been pronounced.

[49]

In the circumstances, I would reduce the
probationary term to 18 months. The original terms imposed by the sentencing
judge, including condition 10 (as set out at para. 83), are in effect save
for condition 4. Mr. Russell says condition 4 of the probation order is
impractically
broad. In my view, the appropriate wording for condition 4 (as set out at para. 83)
should match what is in the LTSO and both counsel agree.

Conclusion

[50]

I would allow the appeal to the extent of granting additional
pre-sentence credit of 27 days; decreasing the term of probation to 18 months;
including condition 10 (as described in para. 83 of the sentencing
reasons) in the probation order as follows: (10) You must not possess or
consume alcohol, drugs, or any other intoxicating substance except in
accordance with a medical prescription; and varying condition 4 (as described
in para. 83 of the sentencing reasons) to mirror the condition in the
LTSO: (4) You are not to be in the presence of any female children under the
age of 18, unless you are accompanied by a responsible adult who knows your
criminal history, and has been previously approved in writing by your probation
officer.

[51]

Arrangements will have to be made to have Mr. Russell sign his
probation order and have the terms and conditions explained to him as well as
the consequences for breaching any of the terms and conditions.

[52]

NEWBURY J.A.
: I agree.

[53]

FISHER J.A.
: I agree.

[54]

NEWBURY J.A.
: The appeal is allowed to the extent indicated.

The
Honourable Madam Justice Stromberg-Stein


