



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hoshal, 2018 ONCA 914

DATE: 20181114

DOCKET: C65672

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brent Casey Hoshal

Appellant

Brent Hoshal, in person

Louis Strezos, as duty counsel

Hannah Freeman, for the respondent

Heard: November 7, 2018

On appeal from the sentence imposed on July 20, 2018 by
    Justice Rebecca Rutherford of the Ontario Court of Justice.

Fairburn J.A.:

Overview

[1]

On July 20, 2018, the appellant was sentenced to
    three years custody for a number of domestic offences. He was credited 24
    months for enhanced pre-sentence custody, leaving one year left to serve. A long
    term supervision order [LTSO] was also imposed for a period of ten years.

[2]

The appellant is a self-represented litigant
    appealing against both his sentence and the LTSO. The respondent agreed to move
    the appeal forward at the appellants request. At the outset of the hearing,
    the appellant asked to bifurcate his appeal and be permitted to first proceed
    on the appeal against the one-year custodial period. He says that this is a
    matter of urgency. He maintains that there was a calculation error in relation
    to the amount of credit he should have received for pre-sentence custody and
    that he should have been released onto his LTSO a few months ago.
[1]
The
    appellant is prepared to deal with his appeal against the LTSO at a later date.

[3]

The respondent and duty counsel agree that there
    was a nine-month error in the calculation of pre-sentence credit, meaning that
    33 months (as opposed to 24 months) of credit should have been applied against
    the appellants global sentence of three years. On the face of the trial
    judges reasons for sentence, with the correct amount of credit deducted, it is
    agreed by counsel on appeal that the appellants custodial sentence would have
    expired a few weeks ago.

[4]

The respondent does not object in principle to
    bifurcating the appeal. The respondent objects, though, to the sentence appeal
    going ahead before at least December 10, 2018, as Correctional Service of
    Canada [CSC] and the Parole Board have yet to put a plan together for the
    appellants release on the LTSO, should he succeed on his appeal. The
    respondent said that a plan is necessary to ensure public safety. For oral
    reasons given in court, the panel denied the request for an adjournment and
    heard the appeal.

[5]

The respondent says that the appeal should be
    dismissed. The respondent maintains that the calculation error constitutes an
    error in principle, allowing this court to consider the sentence afresh. It is
    argued that a fit sentence is one that aligns with the effect of the sentence
    imposed, one additional year in custody. To achieve that effect, the respondent
    urges this court to increase the global sentence to three years and nine months
    and then to apply the correct amount of credit, leaving the same one year in
    custody left to serve.

[6]

For the reasons that follow, I would grant the appeal
    and decline to increase the sentence.

Background Facts

[7]

The appellant and his former domestic partner
    were in a relationship for about seven years. It was a relationship marred by
    violence. He repeatedly threatened and assaulted the victim, went to jail, got
    out of jail and committed more acts of violence against her. The appellants
    criminal record reflects that cycle of violence. The victim is understandably
    terrified of the appellant.

[8]

In relation to the offences that form the
    backdrop to this appeal, the appellant was arrested on May 5, 2015. In the
    month preceding his arrest, he committed a series of violent acts against the
    victim, including: biting her lip, squeezing her breasts, slapping her on the
    head and in the face, choking her, refusing to allow her to leave the
    apartment, threatening to kill her and throwing an iron chair at her. Some of
    the events were accompanied by the appellants use of crystal methamphetamine. During
    their last interaction, the appellant threatened to hang himself with a dog
    leash.

[9]

On August 4, 2015, the appellant pled guilty to the
    charges arising from those offences, including assault with a weapon, assault
    bodily harm, overcome resistance to the commission of an offence, forcible
    confinement, mischief under $5000, and fail to comply with probation.

[10]

Following his guilty plea, the Crown pursued a
    dangerous offender application. While that application was outstanding, the
    appellant again offended by contacting and criminally harassing the victim from
    jail. While awaiting the dangerous offender application on the predicate
    offences, the appellant was found guilty and sentenced on the intervening acts.
    At the time of sentencing on this matter, the appellant had not attempted to
    contact the victim in over two years.

The Disposition Under Appeal

[11]

Prior to sentencing, the trial judge asked trial
    counsel to provide their respective positions on pre-sentence custody. The
    trial Crown responded to that request by email to the trial judge, copied to
    defence counsel. The email explained that counsel had agreed that the enhanced
    credit for pre-sentence custody was 24 months. Although the respondent and duty
    counsel on appeal agree that it is unclear how trial counsel arrived at that
    number, it is clear from the email that they attempted to apply a formula of one
    and one-half days for each day spent in pre-sentence custody: see s. 719(3.1)
    of the
Criminal Code
;
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575.

[12]

On July 20, 2018, the dangerous offender
    application was dismissed because the trial judge concluded that there was a
    realistic possibility that the appellants violent behaviour could be
    controlled, a possibility that went beyond mere hope. As noted in the trial
    judges reasons, that view was supported by Dr. Klassen, who provided the
    report on risk assessment and risk management in the community. Even so, again
    based on Dr. Klassens evidence, the trial judge concluded that absent
    meaningful intervention, the appellant would pose a high risk of violently
    reoffending and that he met the definition of a long-term offender in s. 753.1
    of the
Criminal Code.
Accordingly, she imposed
    a ten-year LTSO.

[13]

The trial judge also considered the appropriate
    sentence for the predicate offences. The parties take no issue with her approach
    to the relevant sentencing principles or the many factors she took into account
    in arriving at a fit disposition. Her reasons were careful, sensitive and
    considered. She had specific regard to the appellants Indigenous heritage and
    the fact that he actively embraces his Indigenous roots. She accepted as a fact
    that the appellant will continue to engage with indigenous programs while
    serving his sentence both in jail and in the community.

[14]

Ultimately, the trial judge imposed a three-year
    sentence, saying:

In all of the circumstances I sentence Mr.
    Hoshal to
three years concurrent

on the counts of Assault with Weapon . [Emphasis added.]

[15]

The trial judge then went on to consider credit
    for time served. Taking into account the conceded 24 months of pre-sentence
    custody on an enhanced basis, she concluded that the appellant had a further
    12 months concurrent to serve on each count. She also imposed a sentence of
    six months concurrent on various fail to comply with probation and mischief
    counts.

[16]

Consistent with her observations about the
    appellants desire to be in a culturally sensitive environment, the trial judge
    recommended that the appellant serve the custodial portion of his sentence at
    the Algoma Treatment Centre, a recommendation that was acted upon. The court
    was informed that the appellant has been detained there since his sentencing in
    July and that he is actively enrolled in what the trial judge referred to as
    culturally competent programming with an emphasis on domestic violence.

[17]

I will now discuss the impact of the
    respondents agreement that the trial judge should have deducted 33 months of
    credit from the global sentence.

Analysis

[18]

The parties agree that, properly calculated, the
    credit for time served should have been 33 months. The respondent also agrees
    that if that period of credit were to be applied to the three-year sentence
    imposed on the day of sentencing, the appellant would have only had to serve an
    additional three months in custody, meaning that his warrant of committal would
    have already expired. Despite that acknowledgement, the respondent argues that the
    one year of additional custody from the time of sentence should not change.

[19]

The respondent urges this court to find that the
    miscalculation of credit constitutes an error in principle that requires this
    court to take a fresh look at the fitness of the sentence. Counsel for the
    respondent says that a fit sentence is one that mirrors what actually happened
     the imposition of one additional year of custody. The court is asked to
    arrive at that sentence by increasing the global sentence to three years and
    nine months. The respondent maintains that it is important to keep the
    effective length of the custodial term the same so that: (a) CSC is given a
    sufficient opportunity to come up with an appropriate plan for the appellants
    release on the LTSO; and (b) the appellant can complete the domestic violence
    program he is currently taking, scheduled to be completed by the middle of January
    2019. I do not agree.

[20]

I start with the observation that it is
    important to maintain a distinction between the custodial sentence and the
    LTSO. Although it is open to consider public safety in determining the fitness
    of sentence, the determination of a custodial sentence principally relates to
    the objectives of punishment. In contrast, the LTSO deals principally with the
    supervision of the offender in the community, ensuring the offender does not
    reoffend and protecting the public during a period of reintegration into
    society:
R. v. M.(L.)
,

2008 SCC 31, [2008] 2 S.C.R. 163, at
    para. 46. To merge the two different tasks is to stray from the normative
    principles and the objectives of sentencing:
M.(L.)
, at para. 49.

[21]

The trial judge determined that the fit sentence
    was three years. The respondent acknowledges that, pursuant to information the
    trial judge had been provided by trial counsel, the trial judge then mistakenly
    applied the wrong amount of credit. Having regard to the correct amount of
    credit, this court is now being asked to increase the custodial sentence to
    accommodate the development of the plan for the LTSO. To do so would belie the
    warning in
M.(L.),
at para. 49,

to remain faithful to the distinction
    between sentencing and the imposition of a supervision period.

[22]

It is not for this court to increase the
    appellants punishment and further jeopardize his liberty interests to
    accommodate the development of a plan for the LTSO. There is no basis to do so.
    The correctional authorities must act swiftly in developing that plan.

[23]

Moreover, although the respondents position
    respecting the value of keeping the appellant in the domestic violence program
    he is currently taking is laudable, the record demonstrates that the best
    programming available to meet the appellants specific needs awaits him on the
    LTSO. Indeed, Dr. Klassen testified to that effect.

[24]

The trial judge determined the fit sentence
    first, before taking into account any credit for pre-sentence custody. I find
    that the trial judge intended to impose a three-year sentence. She said so: In
    all of the circumstances I sentence Mr. Hoshal to three years concurrent. She
    arrived upon that global number having engaged in an extensive consideration of
    the facts, the relevant principles of sentencing and all aggravating and
    mitigating circumstances. There is no suggestion of error in the trial judges
    reasoning process.

[25]

The trial judge then deducted what she referred
    to as the enhanced credit from that global sentence that she arrived upon. As
    the respondent says on appeal, the trial judge was misinformed about that
    period of credit. The sentence is what it is: a three-year global sentence with
    credit applied at what the respondent acknowledges was an incorrect amount of
    24 months. The calculation error clearly had an impact on the time left to be
    served. Properly calculated, the custodial term should have been an additional
    three months.

[26]

While it may have been open to the trial judge
    to apply less than full enhanced credit for the pre-sentence custody, the
    respondent does not advance that argument. Instead, the respondent fairly acknowledges
    that the appellant should have been credited 33 months.

[27]

This only leaves open, then, the question of
    whether this court should increase the total length of the global sentence. The
    respondent claims that numerous authorities support the respondents position
    on this approach. I disagree.

[28]

The respondent relies upon authorities where
    this court found errors in principle in how trial judges applied credit for
    pre-sentence custody. The errors include true errors in principle, such as
    taking irrelevant considerations into account in assigning less credit than
    would otherwise be available, or refusing to grant any credit at all. Cases
    relied upon by the respondent include:
R. v. Codner
,

2013 ONCA
    138, 303 O.A.C. 91;
R. v. Gamble
,

2011 ONCA 308;
R. v.
    Langlois
,

2007 ONCA 642, 228 O.A.C. 394;
R. v. MacFarlane
,

2012 ONCA
    82, 288 O.A.C. 114;
R. v. Simoes
,

2013 ONCA 465;
R. v. Situ
,

2010 ONCA
    683;
R. v. Wysokinski
,

[2005] O.J. No. 2299 (C.A.). There is
    a substantial difference between a trial judge intentionally imposing a period
    of credit arrived upon through an error in principle, and a trial judge
    unintentionally imposing an erroneous period of credit because of counsels mistake
    in math.

[29]

Moreover, the respondent says that the
    authorities provide support for the proposition that any error in principle
    requires this court to consider the overall fitness of sentence, and that it is
    open to the court to increase the total sentence beyond what the trial judge
    imposed. I disagree that the authorities stand for that proposition. An error
    in principle can justify appellate intervention, but only where it appears that
    the error had an impact on the sentence:
R. v. Lacasse
,

2015 SCC
    64, [2015] 3 S.C.R. 1089, at para. 44. In many of the cases cited by the
    respondent, this court determined that despite the error in principle, the
    sentence remained fit and appellate intervention was not called for. In other
    words, despite the error, the appeal was dismissed.

[30]

In this case, though, the respondent
    acknowledges that the 33 months of credit should apply, which is what triggers
    the submission that the global sentence should be increased from three years to
    three years and nine months. There is no Crown appeal against the sentence
    imposed. Nor is there clarity around whether the respondents position about
    increasing the sentence was known to the appellant in advance of the appeal (
R.
    v. Hill,
[1977] 1 S.C.R. 827). In all of the
    circumstances, it would be highly unfair to the appellant to increase his
    sentence, particularly at this stage.

[31]

The trial judge gave careful and thoughtful
    reasons. No one suggests to the contrary. She was clear about what she was
    doing. The fact that she was misinformed about the period of credit should not
    work to the appellants disadvantage. The error should be corrected to make
    this right.

[32]

The respondent has legitimate concerns about
    public safety and they cannot be taken lightly. Although the LTSO is in place, CSC
    does not yet have a specific plan in place for the appellants transition onto
    his LTSO. The court is informed that the plan may still take up to about a
    month to create.

[33]

While it would be ideal to have the CSC plan in
    place, it is important to keep in mind that there will be safeguards in place
    the moment the appellant is released from custody:  the LTSO along with many
    binding statutory requirements and a probation order, which I discuss further
    below.

[34]

The reality is, though, that the appellant
    identified this problem to CSC and the respondent a few months ago. Upon being
    notified, the respondent took immediate steps to inquire into the matter and
    provided the necessary information to the duty counsel program. Mr. Strezos has
    been of great assistance in exploring the matter and obtaining the materials
    needed to determine the correct amount of credit. It took time to get the
    information required to determine the error. That information was only
    available about a week before the hearing of this appeal.

[35]

Although a correctional plan is not yet in
    place, the court has been informed that the correctional authorities have
    opened a bed for the appellant at the Keele Community Correctional Centre
    [KCCC]. The respondent agrees that this is an appropriate location for the
    appellant to reside. Although the respondent emphasizes that, until a plan is
    in place, there will be nothing that legally holds the appellant at that
    location, I have no doubt that CSC and the Parole Board will move quickly to
    remedy that situation.

[36]

In the interim, the LTSO is immediately in place
    along with many statutory requirements that bind the appellant. For example, s.
    753.2(1) of the
Criminal Code
says that an
    offender who is subject to an LTSO shall be supervised in the community in
    accordance with the
Corrections and Conditional Release Act
, S.C. 1992, c. 20

[CCRA], when the offender has finished serving his sentence.
    Section 134.1 of the CCRA sets out the approach to conditions for individuals
    on LTSOs. The Parole Board may establish conditions it considers reasonable and
    necessary, including conditions to protect victims of crime.

[37]

As the respondent points out, the Parole Board
    has not yet set the conditions. Even so, s. 134.1(1) says that every offender
    who is required to be supervised by an LTSO is subject to prescribed conditions
    under s. 161(1) of the
Corrections and Conditional Release
    Regulations
, S.O.R./92-620 [CCRR]
.
Section 161(1)(a) of the CCRR says that when an offender is released
    on parole or statutory release, the offender must travel directly to the
    offenders place of residence, as set out in the release certificate respecting
    the offender, and report to the offenders parole supervisor immediately and
    thereafter as instructed by the parole supervisor.

[38]

The court has been informed that the appellant
    will be released with a direction on his release certificate to travel directly
    to the KCCC. He will also have to report to his parole officer immediately.
    Under s. 161(1)(b) of the CCRR, the parole officer can fix territorial
    boundaries within which the appellant must remain. Under a host of other
    mandatory provisions, he may not possess weapons, he must report to the police
    if instructed to do so by his parole supervisor, and he must obey the law and
    keep the peace. Any breach of those provisions could result in a warrant for
    the appellants arrest.

[39]

The appellant is also bound by a probation
    order, including a condition that he not communicate with the victim in this
    matter. Any breach of that probation order could also result in his immediate
    arrest.

[40]

I also point out that pursuant to s. 753.3(1) of
    the
Criminal Code,
an offender who breaches an
    LTSO is guilty of an indictable offence and liable to imprisonment for up to
    ten years.

[41]

In short, the following factors all go some meaningful
    distance to diminish the safety risk posed by the appellant:

·

statutory requirements governing the appellants
    release on the LTSO,

·

the fact that the KCCC has opened a bed for the
    appellant and that he can reside there,

·

the fact that he will be required to attend
    there and report to his parole officer immediately upon release from custody,

·

the ability of the parole officer to set some
    conditions,

·

the probation order that includes a non-contact
    provision, and

·

the fact that the Parole Board will and should
    move quickly on the actual plan.

[42]

The fact is that the appellants sentence should
    have expired already. There are many safeguards in place, but more to come. I
    urge the correctional authorities to move expeditiously to put a plan in place.

Conclusion

[43]

I would grant leave to appeal the sentence:

(a)
set aside the credit of 24 months
    and increase it to 33 months; and

(b)
set aside the one-year and six-month
    concurrent custodial terms and decrease them to three months concurrent.

[44]

The original sentence stands in all other
    respects.

[45]

I have no doubt that the respondent will move
    immediately to have the victim and authorities notified of this decision.

[46]

The appeal from the LTSO will be spoken to on December 10, 2018 at
    10:00 a.m.

Released: KF Nov 14 2018

Fairburn J.A.
I agree. K. Feldman J.A.
I agree. L.B. Roberts J.A.





[1]
In addition to receiving the assistance of duty counsel, the
appellant
    made submissions on his own behalf. He claims that he should have been released
    from custody close to the beginning of September. I understand him to be basing
    that submission on two things: (a) taking into account the correct period of
    pre-sentence custody at an enhanced rate; and (b) applying a formula of parole
    eligibility.


