



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pearce, 2021 ONCA 239

DATE: 20210414

DOCKET: C68988

Pardu, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Darren Pearce

Appellant

Darren Pearce, in-person

Margaret Bojanowska, duty counsel

Jeffrey Wyngaarden, for the respondent

Heard: April 9, 2021 by video conference

On appeal from
    the sentence imposed on December 30, 2020 by Justice Richard T. Knott of the
    Ontario Court of Justice.

REASONS FOR DECISION

OVERVIEW

[1]

In this inmate appeal, Darren Pearce seeks leave
    to appeal the sentence he received for the offences of aggravated assault and
    breach of recognizance. The sentencing judge imposed on Mr. Pearce the combined
    equivalent of a global sentence of five years imprisonment. Mr. Pearce had
    already effectively served most of that time through pre-sentence custody and
    sentence reductions identified by the sentencing judge.

[2]

At the end of the oral
    hearing, with reasons to follow, we granted leave and allowed the sentence
    appeal. As we explain below, the sentencing judge erred by failing to address
    the principle of parity between the sentences imposed on Mr. Pearce and his
    co-accused, Terrance Goodwin, when there was clear reason to do so, and by
    imposing, without explanation, a sentence on Mr. Pearce that was substantially
    and markedly longer than the global sentence of two and one-half years
    imprisonment that Mr. Goodwin had received.

[3]

In our view, a global sentence of
    approximately three and one-half years would have been appropriate for Mr.
    Pearce. By the time of his appeal, given his pre-sentence custody, the sentence
    reductions identified by the trial judge, and the 100 days Mr. Pearce served after
    being sentenced and before his appeal hearing, Mr. Pearce had effectively
    served a global sentence of approximately three and one-half years. We therefore
    set aside Mr. Pearces sentence of imprisonment and
substituted
    a sentence of time served. These are our reasons.

THE MATERIAL FACTS

[4]

On June 16, 2019, Darren Pearce and Terrance
    Goodwin, both drug addicts, together stabbed Tyler Moore, a drug dealer, approximately
    17 times. Mr. Pearce and Mr. Goodwin each stabbed Mr. Moore multiple times with
    the same knife and took Mr. Moores backpack, which contained drugs. Mr. Moore
    suffered permanent injuries from the attack, including multiple stab wounds to
    his torso and diminished use of his left hand, in which tendons were severed.
    The drugs stolen by Mr. Pearce and Mr. Goodwin were distributed among others
    connected to the pre-planned drug rip-off.

[5]

On October 16, 2019, Mr. Goodwin pleaded guilty
    to aggravated assault and breach of probation for his role in the attack. Mr.
    Goodwin has an extensive criminal record, including assault convictions, and was
    on probation for another aggravated assault and awaiting disposition on
    separate breach and drug offences at the time of the attack on Mr. Moore. Mr.
    Goodwin received a sentence equivalent to 30 months as well as three years
    probation.

[6]

On September 21, 2020, after seven days of
    trial, Mr. Pearce pleaded guilty to aggravated assault for having wounded Mr.
    Moore. He also pleaded guilty to breach of recognizance; at the time of the
    attack on Mr. Moore, Mr. Pearce was in violation of a bail release condition
    that he live at a drug treatment facility while awaiting trial on unrelated
    charges.

[7]

At Mr. Pearces request, the sentencing judge
    ordered a
Gladue

report to assist in sentencing Mr. Pearce. No
    report was prepared because Aboriginal Legal Services could not confirm that
    Mr. Pearce was an Indigenous person, and they lacked information on how such
    status would have affected his life circumstances. However, the sentencing
    judge was provided with an extensive affidavit in which Mr. Pearce attested to
    his Indigenous status and life circumstances, including: his fathers
    imprisonment during Mr. Pearces childhood; the tragic drug overdose death of
    his mother when Mr. Pearce was five years of age; Mr. Pearces time in foster care
    and in the care of his grandparents; his own descent into addiction; and his
    reconnection with his father later in life, shortly before his fathers death.

[8]

Mr. Pearces significant and related record,
    containing 58 convictions, including for assault, robbery, and weapons offences,
    was also put before the sentencing judge. A few years before the incident with
    Mr. Moore, Mr. Pearce received a sentence of 30 months in custody for a robbery
    with a weapon.

[9]

The sentencing judge was also made aware that
    Mr. Pearce had been sober for about 17 months prior to his sentencing hearing,
    had participated in counseling and programs while incarcerated, and had
    reconnected with his sister and was taking concrete steps to do the same with
    his two sons.

[10]

The details of Mr. Goodwins sentence, but not
    the reasons for that sentence, were before the sentencing judge in the Agreed Statement
    of Facts filed when Mr. Pearces plea was entered. Although Mr. Pearces defence
    counsel did not raise the principle of parity between co-accused offenders during
    his sentencing submissions, Crown counsel did so in her reply submissions,
    noting that there has to be parity to some extent between the [sentences of
    the] two [Mr. Goodwin and Mr. Pearce]. She argued that Mr. Pearce had the
    greater record of the two and noted that Mr. Goodwin had pleaded guilty very
    early in the process, unlike Mr. Pearce. Based on these differences, the Crown
    urged that the sentence Mr. Pearce was seeking  time served, or the
    equivalent of 27 months  would not achieve parity with Mr. Goodwins sentence
    of 30 months.

[11]

In sentencing Mr. Pearce, the sentencing judge
    concluded that the wounding of Mr. Moore was among the most serious of
    aggravated assaults. He also noted Mr. Pearces extensive criminal record. The
    sentencing judge accepted the Crowns submission, based on
R. v. Tourville
,
    2011 ONSC 1677, [2011] O.J. No. 1245, that five years was the lowest
    appropriate sentence for an assault of this nature and a person with Mr.
    Pearces record without consideration of Mr. Pearces personal and collateral
    factors.

[12]

The sentencing judge then identified the
    personal and collateral factors that he applied to reduce Mr. Pearces fit
    sentence by one year, to four years imprisonment.

Specifically, he
    accepted that Mr. Pearce is Indigenous, and found a connection between Mr.
    Pearces heritage and his difficult background, holding that the
Gladue

factors must be considered on sentence in this case. He also accepted
    that Mr. Pearce had experienced harsh conditions while in pre-sentence custody
    because of the COVID-19 pandemic, lockdowns, and assaults that Mr. Pearce endured
    while awaiting trial. He accepted, as well, that the COVID-19 pandemic has
    reduced the sentencing tariffs.

[13]

The sentencing judge then gave Mr. Pearce the
    maximum statutory credit for pre-sentence custody, the equivalent of 816 days,
    and imposed a custodial sentence of 644 days, or just over 21 months, plus
    two years of probation, along with ancillary orders.

[14]

When referring in his reasons to the co-accused
    Mr. Goodwins role in the attack, the sentencing judge mentioned that Mr.
    Goodwin had pleaded guilty earlier, but gave no details of the sentence Mr.
    Goodwin had received, nor did he make explicit mention of the principle of
    parity.

ISSUES

[15]

In his inmate appeal, Mr. Pearce seeks leave to
    appeal his sentence. His grounds of appeal may fairly be stated as follows:

1.

The sentencing judge misapprehended the
    appropriate sentencing range; and

2.

The sentencing judge erred in failing to apply
    the principle of parity in imposing a disproportionately high sentence relative
    to the sentence received by Mr. Pearces co-accused Mr. Goodwin.

[16]

It is not necessary to address the first ground
    of appeal.

ANALYSIS

[17]

The principle
    of parity is provided for in s. 718.2(b) of the
Criminal

Code
, R.S.C.
    1985, c. C-46. It provides that a sentence should be similar to sentences
    imposed on similar offenders for similar offences committed in similar
    circumstances. This guiding principle preserves fairness in sentencing by
    promoting the equal treatment of offenders according to law. It applies as
    between co-accused charged with the same crime, and between the offender and
    others who have committed similar crimes, where those others are similar to the
    offender in terms of degree of responsibility. Given the principle of
    individual sentencing, and that comparable circumstances are not apt to be
    identical, absolute parity is not required and, indeed, may not be appropriate.
    However, where there is a substantial and marked disparity in sentence between similar
    co-accused offenders who have committed similar crimes, an appellate court
    should intervene:
R. v. Mann
, 2010 ONCA 342, 261 O.A.C. 319, at paras.
    18-19.

[18]

That said, a sentencing
    judge is not required to apply the principle of parity between co-accused offenders
    charged with the same crime if the judge lacks the information necessary to
    undertake a meaningful comparison:
R. v.
    Jackson
, 2016 ONCA 497,
    [2016] O.J. No. 3323, at para. 2;
R. v.
    Courtney
, 2012 ONCA 478,
    294 O.A.C. 346, at para. 8.

[19]

In the
    circumstances of this case, the sentencing judge was alerted by the Crown to
    consider the principle of parity between Mr. Pearce and Mr. Goodwin. He was
    also provided with the information required to apply the principle of parity
    between co-accused offenders. He should have done so.

[20]

Specifically, the
    sentencing judge was informed in the Agreed Statement of Facts, filed at the
    time of Mr. Pearces plea, that Mr. Goodwin had received a global sentence of
    30 months imprisonment, which was reduced to a net sentence of 24 months
    because Mr. Goodwin had served the equivalent of six months in pre-sentence
    custody. The sentencing judge was also advised that the Crown was seeking a
    global sentence of five years, or 60 months, against Mr. Pearce, a sentence
    twice as long as that imposed on Mr. Goodwin.

[21]

The Agreed Statement
    of Facts also confirmed that there was no discernible difference in the gravity
    of the crimes committed by Mr. Pearce and Mr. Goodwin against Mr. Moore. Although
    Mr. Pearce had committed an earlier assault against the victim, the respective roles
    of Mr. Pearce and Mr. Goodwin in the attack that was the subject of their
    charges were identical.

[22]

The Agreed
    Statement of Facts disclosed that, like Mr. Pearce, Mr. Goodwin was an addict.
    Although Mr. Goodwins actual criminal record was not before the sentencing
    judge, the Agreed Statement of Facts described Mr. Goodwin as having an
    extensive criminal record with previous assault, aggravated assault, break and
    enter, and drug convictions and 52 Niche RMS occurrences on file. Despite
    the Crowns submission that Mr. Pearces record was greater than Mr.
    Goodwins, the evidence before the sentencing judge through the Agreed
    Statement of Facts showed that, in fact, Mr. Pearces record could not be a
    justification for a material departure from the parity principle.

[23]

The Agreed
    Statement of Facts further disclosed that, like Mr. Pearce, Mr. Goodwin had
    also committed, and was being sentenced for, a breach offence that occurred at
    the time of the aggravated assault. Notably, Mr. Goodwins breach offence was
    more serious and more apt to aggravate his global sentence than Mr. Pearces
    breach offence. Indeed, while Mr. Pearce was in breach of a court-ordered
    residency requirement at the time of the assault, Mr. Goodwin breached a
    probationary order imposed for an unrelated aggravated assault, the very same kind
    of offence for which he was sentenced in the attack on Mr. Moore.

[24]

The sentencing
    judge was also made aware that Mr. Goodwin had pleaded guilty on October 16,
    2019, four months after the assault occurred. He of course also knew that Mr.
    Pearce pleaded guilty much later, after seven days of trial had already elapsed.

[25]

Armed with this
    information, the sentencing judge was obliged to consider the principle of
    parity between co-accused offenders charged with the same crime. It is clear
    from his reasons for sentence that he did not do so. He therefore erred by
    failing to consider the principle of parity, when there was clear reason to do
    so.

[26]

The Crown argues
    that, nonetheless, the sentence imposed is appropriate. In able submissions
    before us, appeal counsel for the Crown relied primarily on the relative timing
    of the respective guilty pleas as justification for the disparity in the
    sentences imposed.

[27]

We accept that
    through his early guilty plea, Mr. Goodwin was entitled to mitigation both for accepting
    responsibility and for entering a plea that would avoid the need for a trial.
    With his later guilty plea, Mr. Pearce was entitled only to mitigation for
    accepting responsibility and for shortening a trial that was already underway. However,
    the timing of the plea alone does not justify giving Mr. Pearce a sentence that,
    at 60 months, is twice as long as the global sentence of incarceration of 30
    months imposed on Mr. Goodwin.

[28]

To be sure,
    there is no settled mathematical formula for the sentence reduction that is
    warranted in recognition of an early guilty plea:
R. v. Daya
,
    2007 ONCA 693, 227 C.C.C. (3d) 367, at para. 15. However, analogous cases such
    as
R. v. Laverdiere
, 2020 ABCA 290, [2020] A.W.L.D. 2666, highlight
    the substantial and marked nature of the sentencing disparity in this case. In
Laverdiere
, the
    Alberta Court of Appeal found that a sentencing judge erred by giving the
    accused a seven-year sentence after trial on a brutal assault, when his
    co-accused had received a four-year sentence after an early guilty plea. Here, of
    course, Mr. Pearce was not convicted after trial. He pleaded guilty, albeit
    during trial.

[29]

The sentencing
    judge therefore erred in failing to apply the principle of parity. This error
    clearly affected the sentence imposed, since the sentence of imprisonment Mr.
    Pearce received is, without justification, substantially and markedly longer
    than the sentence imposed on Mr. Goodwin.

[30]

Accordingly, it
    falls to us to substitute a sentence. In doing so, we bear in mind that the
    principle of parity between co-accused offenders cannot be relied upon to
    justify imposing a sentence that is so low as to be unfit: Clayton C. Ruby,
Sentencing
,
    10th ed. (Toronto: LexisNexis Canada, 2020), at
§2.59-2.63
.

[31]

In all the
    circumstances, including the extreme hardship that Mr. Pearce has experienced
    while in custody, where he was seriously injured as the result of several
    assaults, it is in the interests of justice to substitute a global sentence that
    is equivalent to approximately three and one-half years of imprisonment. When
    pre-sentence custody and sentencing credits are considered, the 100-day time
    served prison sentence we imposed at the end of the oral hearing to achieve
    this fit, global sentence is about one year longer than the global sentence
    imposed on Mr. Goodwin. The differential that remains reflects Mr. Goodwins
    earlier guilty plea.

CONCLUSION

[32]

We grant Mr. Pearce leave to appeal his
    sentence, set aside the sentence of imprisonment imposed, and substitute a
    sentence of 100 days imprisonment, which Mr. Pearce has already served. We
    affirm the remaining components of Mr. Pearces sentence.

G. Pardu J.A.

David Brown J.A.

David M. Paciocco J.A.


