





CITATION:
R. v. Reid, 2011 ONCA 824



DATE: 20111223



DOCKET: C54574



COURT OF APPEAL FOR ONTARIO



Simmons, Blair and Hoy JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Robert Reid



Appellant



Erin Dann, for the appellant



Scott Latimer, for the respondent



Heard: December 13, 2011



On appeal from the sentence imposed
          on June 30, 2011 by Justice Donald G. Fraser of the Ontario Court of Justice.



Hoy J.A.:



[1]

The appellant, Robert Reid, pleaded guilty to one count of dangerous
    driving and one count of failing to stop for police, contrary to s. 249 (1)(a)
    and s. 249.1(1) of the
Criminal Code
.  He appeals the sentence imposed
    on two grounds:

1.         The
    sentencing judge erred in rejecting the joint recommendation on sentencing put
    before him by the Crown and defence; and

2.         The
    sentencing judge erred in principle in failing to give the appellant credit for
    time spent in pre-sentence custody.

[2]

I would allow the appeal on the first ground and reduce the sentence by
    84 days.  As I would dispose of this appeal on the first ground, I need not
    address the second ground of appeal.

Background

[3]

In 2003, the appellant was convicted of criminal negligence causing
    bodily harm in a driving context.

[4]

On April 6, 2011, the appellant was allegedly involved in a fail to
    remain accident.  Later in the day, he was observed driving at a very high rate
    of speed on a loose gravel road in an area with numerous houses.  The police
    constable activated the cruisers emergency lights and sirens, pursued the
    appellant and attempted to stop him.  The appellant barely missed a male pedestrian
    at the crest of a hill and later appeared to be throwing empty cans out of the
    vehicle.  The police deployed a spike-belt.  The appellants vehicle hit the
    belt, and continued  smoking, and with tires disintegrating.  The police
    pulled up beside him and motioned for him to stop.  He saw the police cruiser
    and, while travelling at about 70 kilometres per hour, swerved to strike its
    passenger side.  The appellant was at this point entering a densely populated
    area of the city.  He was swerving and taking up both lanes.  Ultimately, the
    police succeeded in pinning the appellants vehicle to the side of a curb.

[5]

On May 5, 2011, the Crown and defence counsel jointly recommended a
    sentence of nine months custody on top of time-served.  At the time of the
    recommendation, the appellant had spent almost a month in custody.  If
    accepted, the sentence would have expired on or about February 5, 2012.

[6]

The sentencing judge observed that the facts were outrageous and the
    case against the appellant was overwhelming.  The sentencing judge signalled
    that he was looking at a significantly higher sentence and ordered a
    pre-sentence report.  Crown counsel confessed that, I had taken the initial
    position I think two days into the file and we just sort of, you know frankly I
    had to struggle with it since.

[7]

The matter was put over until June 30, 2011.

[8]

The pre-sentence report indicated that the appellants erratic behaviour
    was likely because of some underlying mental health issues, and that part of
    the difficulty was the appellants denial that he had any mental health issues.
     The appellant is suspected of suffering from an untreated, underlying
    biological, cyclic mood disorder, possibly Bipolar.  The Crown had been unaware
    of these issues.

[9]

On June 30, 2011, the defence counsel continued to recommend a 10-month
    sentence less the time in custody.  As, at this point the time in custody was 84
    days, this would have resulted in the appellants sentence expiring on or about
    February 6, 2012.  Crown counsel supported this, stating that it was within
    the range given what we know about Mr. Reid.

[10]

The sentencing judge indicated as follows:

Counsel agree the range is at the low end and it is
    for that type of behaviour and your record.  But with this additional
    information from the Pre-Sentence Report Im now prepared to accept it.  Im
    not giving you credit for the time youve spent in pre-sentence detention
    because in my view that pre-sentence detention time produced the material that
    allowed me to accept the joint submission.

The other concern I have is that I want you in
    custody long enough to give you an opportunity to participate in some
    rehabilitation programming at the Thunder Bay Correctional Centre.  I think you
    could make a contribution there; youre intelligent, youre articulate.

You have 84 days of pre-sentence detention which I
    credit but at the same time, in my view, the total sentence should still be 10
    months from today.

[11]

The appellants sentence will end April 30, 2012, 84 days later than if
    the sentencing judge had credited pre-sentence detention in the manner proposed
    in the joint submission.

[12]

The appellant remains in custody at the Thunder Bay Correctional Centre.
     While reported to be well behaved, he has not taken any of the rehabilitative
    programs available.

Analysis

[13]

It was accepted by the sentencing judge and the parties on this appeal
    that the sentencing judge was faced with a joint submission, although
    re-phrased on June 30, 2011 to give effect to the passage of time since May 5,
    2011 and recognize the longer period of pre-sentence detention.

[14]

It is well settled that a sentencing judge should not reject a joint
    submission unless the joint submission is contrary to the public interest and
    the sentence would bring the administration of justice into disrepute:
R. v.
    Cerasuolo
(2001), 151 C.C.C. (3d) 445 (Ont. C.A.).

[15]

On the facts before him on May 5, 2011, the sentencing judge properly
    expressed concern about the sentence proposed.  He was also properly
    deferential: he ordered a pre-sentence report and afforded counsel the
    opportunity to make further submissions.

[16]

The pre-sentence report, which cast the appellants moral culpability in
    a different light, permitted the sentencing judge to conclude that the sentence
    proposed was in the range, having regard to the behaviour and record of the
    appellant.

[17]

While the sentencing judge indicated that he accepted the joint
    submission, in our view, in not allowing the appellant credit for pre-sentence
    detention in the manner proposed, he, in fact, imposed a longer sentence and
    rejected the joint submission.  Recognition of pre-sentence detention was an
    integral element of the joint submission.

[18]

Having taken the position that he was accepting the joint submission,
    the sentencing judge did not proceed to explain in what way the joint
    submission was contrary to the public interest and would bring the
    administration of justice into disrepute.

[19]

The sentence imposed by the sentencing judge is not markedly longer than
    that proposed in the joint submission.  He accepted that the joint submission
    was within the range.  He did not conclude, and the 84-day difference is not a
    basis for inferring, that a shorter sentence would bring the administration of
    justice into disrepute.

[20]

The sentencing judge did explain that he believed the additional period
    would give the appellant an opportunity to participate in rehabilitative
    programming.  Rehabilitation of offenders is an important sentencing objective
    and in the public interest. It is unclear however, given the suspected nature
    of the appellants mental health challenges, the role that medication plays in
    treating such problems, and the optional nature of the rehabilitative
    programming, why a sentence that was 84 days shorter would materially affect
    the appellants rehabilitation and was contrary to the public interest and
    would bring the administration of justice into disrepute.  The report of
    Thunder Bay Correctional Centre regrettably indicates that the appellant has
    not availed himself of the opportunity to participate in any of the available
    rehabilitative programs.

[21]

In the result, I would allow the appeal.

RELEASED:  Dec 23, 2011                                                            Alexander
    Hoy J.A.

J.S.                                                                                                I
    agree J. Simmons J.A.

I
    agree R.A. Blair J.A.


