



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Walker, 2017 ONCA 39

DATE: 20170118

DOCKET: C62020

Sharpe, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn Walker

Appellant

E. Taché-Green, for the appellant

Rochelle Direnfeld, for the respondent

Heard: November 25, 2016

On appeal from the sentence imposed on June 9, 2015 by
    Justice J. Skowronski of the Ontario Court of Justice.

Sharpe J.A.:

[1]

The central issue on this sentence appeal is whether a sentence of four
    years imprisonment in addition to credit for 13 months pre-sentence custody is
    an illegal sentence where the maximum penalty for the offence is five years.

FACTS

[2]

On September 9, 2014 Ontario Provincial Police officers observed the appellant
    driving very slowly and pulling a trailer with no tail lights. The trailer also
    obscured the tail lights of the appellants car. The police signalled for the
    appellant to pull over.

[3]

The officers observed the appellant to be exhibiting signs of impairment.
     The appellant refused to get out of the vehicle when ordered to do so. He hit
    the gas and revved his engine, but the car was in park and it did not move. An officer
    leaned into the car and struggled with the appellant. The officer then backed
    out of the vehicle and again ordered the appellant to exit the vehicle. The
    appellant reached for the gearshift in an apparent attempt to place it into
    drive. At that point, the officer tasered the appellant. Undeterred, the
    appellant drove away, speeding through stop signs with the trailer he was
    pulling whipping back and forth across the road. The appellant also swerved
    into oncoming lanes of traffic. The police chased him in their cruiser, using
    their siren. The appellant paid no heed, and the police turned the sirens off
    in hope that this would cause the appellant to slow to a safer speed.

[4]

At one point during the pursuit, the appellant locked his brakes. As the
    trailer had no brake lights, the police did not realize that the appellant was
    braking and the cruiser hit the back end of the trailer. After this collision,
    the appellant sped away through a residential area with the cruiser once again
    in pursuit. The appellant sped through stop lights and stop signs. Eventually,
    the police were successful in forcing the appellant to stop by pinning him
    against a gate. An officer got out of the cruiser and ordered the appellant to
    turn his car off. The appellant reversed, hitting the cruiser three or four
    times. The appellants vehicle broke free from the trailer and he drove away.
    One of the officers jumped out of the way to safety.

[5]

Once again, the police pursued the appellant and ultimately succeeded in
    pinning his vehicle down. The appellant exited his vehicle and fled on foot.
    Neighbours alerted the police that he had gone into his house. His elderly
    mother told the police that her son had just run into his room. The police
    arrested him in his bedroom. He made some comments to the police and initially
    resisted arrest until the taser was brought out, at which point he was
    compliant. The appellant refused to provide a breath sample at the station. The
    appellant was subject to a driving prohibition at the time he was arrested.

[6]

The appellant pleaded guilty to impaired driving, resisting a peace
    officer, dangerous driving, flight while being pursued by a peace officer,
    driving while disqualified and failing to provide a breath sample.

REASONS FOR SENTENCE

[7]

The Crown sought a sentence of five to six years, less time served, plus
    a lifetime driving prohibition. The defence argued for time served and a
    lengthy probationary period.

[8]

The appellant has a lengthy criminal record consisting of 78
    convictions, including 17 convictions for driving offences. His most recent
    conviction was in 2013 when he was stopped for speeding. He was a prohibited
    driver at the time. He initially gave a false name to the police. While the
    police conducted a CPIC check, the appellant sped away. He evaded the first and
    second spike belts that were employed to stop him, but was eventually stopped
    by a third set. He then fled on foot but was caught. His alcohol readings were
    115 and 117. He also has more than 20 convictions for breaches of court orders,
    including nine convictions for driving while disqualified.

[9]

The sentencing judge noted that the mitigating factors were the guilty
    plea, and the appellants expression of remorse. In addition, the appellant had
    concrete plans for rehabilitation.

[10]

The sentencing judge considered the aggravating factors to be pronounced.
    In addition to the appellants lengthy criminal record, the sentencing judge
    found the circumstances of the offences to be aggravating. In the sentencing
    judges words, they border on legendary in a negative way. Perhaps nightmarish
    is a better description.

[11]

The sentencing judge noted that denunciation and deterrence must be major
    considerations in drinking and driving cases, as strong and consistent messages
    must be sent to drunk drivers. The appellants record screams out to the
    court for an exemplary sentence. While the appellant claimed to be determined
    to start down the road to rehabilitation, that had also been his position in
    2013 when he had asked for a longer sentence so that he could get into a
    treatment program. The sentencing judge observed that the time to get help has
    been ever present when out of custody, but not meaningfully accessed. He
    concluded that the circumstances of these offences and the appellants record
    demanded a sentence that appropriately denounced and deterred. He concluded as
    follows: Therefore, on the resist police officer, there will be a 90 day
    sentence concurrent to the other charges, and on all other charges there will
    be a four year penitentiary sentence, on top of 13 months of pre-plea custody.
    The sentencing judge also imposed a lifetime driving prohibition, victim fine
    surcharges and a DNA order.

ISSUES

[12]

The appellants principal ground of appeal is that by imposing a
    sentence of four years on top of 13 months pre-sentence custody, the sentencing
    judge imposed an illegal sentence. The appellant points out as well that the sentencing
    judge erred in his calculation of the pre-sentence custody and that the sentence
    should be reduced accordingly. The appellant also submits that the sentencing judge
    failed to consider the parity principle, and did not properly consider the
    evidence of rehabilitation. The appellant also moves to admit fresh evidence, to
    which the Crown responds with further fresh evidence.

ANALYSIS

Did the sentencing judge
    impose an illegal sentence?

[13]

In addition to the resist police officer charge (for which the appellant
    received 90 days concurrent), the appellant pleaded guilty to five other
Criminal
    Code
offences, for each of which the maximum allowed sentence was five
    years imprisonment.



Offence

Maximum Penalty where Crown proceeding by indictment



Impaired
          operation of a motor vehicle

(s.
          253(1)(a))

5
          years (s. 255(1)(b))



Dangerous
          operation of a motor vehicle

(s.
          249(1)(a))

5
          years (s. 249(2)(a))



Flight
          while pursued by a peace officer

(s.
          249.1(1))

5
          years (s. 249.1(2)(a))



Drive
          while disqualified (s. 259(4))

5
          years (s.259(4)(a))



Fail
          to provide a breath sample (s. 254(5))

5
          years (s. 255(1)(b))



[14]

While it might have been technically possible for the sentencing judge
    to have imposed a sentence of more than five years in total, that would have
    required consideration of the principle in
R. v. Kienapple,
[1975]
1 S.C.R. 729 and the imposition of
    discrete sentences on each count.  The sentencing judge did not do that. Instead,
    he imposed a global sentence of four years in addition to 13 months pre-sentence
    custody. He did not specifically determine the sentence to be imposed for each
    of those offences as required by s. 725(1)(a) of the
Criminal Code
.
    That, however, does not invalidate the sentence as s. 728 of the
Criminal
    Code
provides:  Where one sentence is passed on a verdict of guilty on
    two or more counts of an indictment, the sentence is good if any of the counts
    would have justified the sentence. In
R. v. P.(T.A.)
, 2014 ONCA 141,
    307 C.C.C. (3d) 506, at para.16, this court held that when considered together,
    ss. 725(1)(a) and 728 mean that sentence should be passed on each count on
    which an accused has been found guilty but a single global sentence on one or
    more counts will not be invalidated provided the sentence may be justified by
    any of the counts.

[15]

The maximum single global sentence that would have been justified in
    this case was five years. Accordingly, the issue is whether a sentence of four
    years imprisonment on top of 13 months credit for pre-sentence custody is an
    illegal sentence.

[16]

The issue of the calculation of sentences that include credit for pre-sentence
    custody in relation to statutory minimums and maximums has been considered in a
    variety of circumstances.

[17]

In
R. v. Wust
, 2000 SCC 18, [2000] 1 S.C.R. 455,
R. v.
    Arthurs
, 2000 SCC 19, [2000] 1 S.C.R. 481 and
R. v. Arrance
, 2000
    SCC 20, [2000] 1 S.C.R. 488, the Supreme Court of Canada held that a sentencing
    judge may give credit for pre-sentence custody and impose a sentence less than
    a mandatory minimum sentence, provided the total amount of time served
    satisfies the mandatory minimum. As explained in
Arthurs
, at para. 1:
    a sentencing judge may give credit for time served in pre-sentencing custody,
    even if that credit results in a sentence below the mandatory minimum, since
    this reflects the intention of Parliament that all sentences be administered
    consistently within the context of the criminal justice systems sentencing
    regime.

[18]

In
R. v. Fice
, 2005 SCC 32, [2005] 1 S.C.R. 742, the Supreme
    Court rejected the argument that credit for pre-sentence custody could affect
    the availability of a conditional sentence. A conditional sentence is only
    authorized for sentences of less than two years. The court determined that the
    two years less a day maximum period must be based on the total time of
    punishment, which includes credit for pre-sentence custody. Just because a
    given offender was sentenced to serve less than two years did not mean a
    conditional sentence was available, if taking pre- sentence custody into
    account meant that total time spent in custody was more than two years.

[19]

In my view,
Wust
,
Arthurs, Arrance
and
Fice
support the appellants argument that the sentence imposed in this case was
    illegal. Those cases hold that pre-sentence custody is properly considered as
    punishment for the offence, and that it should therefore be taken into account when
    calculating the length of the sentence in relation to minimum and conditional
    sentences.

[20]

The respondent relies on
R. v. Mathieu
, 2008 SCC 21, [2008] 1
    S.C.R. 723, where the Supreme Court appears to have taken a different approach
    in the case of eligibility for a probation order. The court held, at para. 17,
    that a sentence of less than two years does not become a sentence of more
    than two years simply because the trial judge, in imposing the sentence of less
    than two years, took into account the time already spent in custody as a result
    of the offence. As a result, it was open to the sentencing judge in that case
    to make a probation order which is only available where the sentence is less
    than two years, despite the aggregate of the sentence imposed and the
    pre-sentence custody exceeding two years. Similarly, in
R. v. Moniere
,
    2008 SCC 21, [2008] 1 S.C.R. 723, the Court held that credit for pre-sentence custody
    is not relevant to the determination of when an accused is eligible for parole;
    rather that calculation is based on the sentence imposed on the date of
    sentencing.

[21]

While
Mathieu
and
Moniere
take a different view of the
    effect of pre-sentence custody on the calculation of the length of sentences in
    the context of probation orders and parole, those cases also accept that there are
    occasions where pre-sentence custody should be considered as part of the term
    of imprisonment imposed at the time of sentence; namely, minimum sentences (
Wust
)
    and conditional sentences (
Fice
).

[22]

The Supreme Court of Canada has not considered the question before us on
    this appeal, but there is a consistent line of authority at the level of
    provincial appellate courts that the total of credit for pre-sentence custody
    plus the sentence actually imposed must not exceed the maximum sentence and
    that if it does, the sentence is illegal.

[23]

In
R. v. Rotman
, 2015 ONCA 663, 339 O.A.C. 266, this court
    found that the trial judge erred in principle by imposing a sentence which
    taken together with the pre-sentence custody exceeded the statutory maximum of five
    years. In that case, the trial judge said, In addition to Mr. Rotmans
    presentence custody, I sentence him to 3 years At the time of sentencing Mr.
    Rotman had spent two years and 13 days in custody. Brown J.A., writing for the
    court, concluded at para. 7:

I accept the appellant's submission. The language used by the
    sentencing judge in his reasons clearly indicates that he imposed a sentence
    containing two elements  the time already served by the appellant in
    pre-sentence custody (2 years and 13 days by the date of sentence), together
    with a further 3 years' imprisonment. At the time the sentence was imposed,
    that resulted in a sentence which exceeded, by 13 days, the statutory maximum
    of 5 years' imprisonment. By imposing a sentence that exceeded the statutory
    maximum, the sentencing judge erred in principle. On this basis alone, the
    sentence imposed cannot stand.

[24]

In
R. v. LeBlanc
, 2005 NBCA 6, 193 C.C.C. (3d) 387, the New
    Brunswick Court of Appeal held, at para. 64, that the trial judge erred in
    imposing a sentence, which, when combined with the pre-sentence custody,
    exceeds the maximum allowed by the
Criminal Code
.

[25]

In
R. v. Severight
, 2014 ABCA 25, 306 C.C.C. (3d) 197, leave to
    appeal refd [2014] S.C.C.A. No. 184,  the Alberta Court of Appeal took the
    same approach and found that the Supreme Courts decision in
Mathieu
did not assist in determining how pre-sentence custody interacted with maximum
    sentences. The court noted that
Mathieu
had expressly recognized that
    there were occasions where pre-sentence custody should be considered as part of
    the term of imprisonment imposed at the time of sentence, namely, minimum or
    conditional sentences. The Alberta Court of Appeal found, at para. 32, that the
    issue of pre-sentence custody in the context of maximum sentences raises many
    of same concerns about fairness:

In our view, issues of fairness also arise when one is
    considering pre-sentence custody in the context of statutory maximum sentences.
    These limits are designed to establish an upper limit of incarceration with
    respect to certain offences. To impose the maximum sentence, without
    considering pre-sentence custody, would flout the obvious intention of
    Parliament by providing a sentence that effectively exceeds the maximum.
    Parliament can hardly have intended to impose a maximum term of imprisonment
    for aggravated assault that could be extended, to varying degrees depending on
    the time spent in pre-sentence custody, through the failure to exercise a
    judicial discretion. It would also provide unequal punishment, for similarly
    situated offenders, based upon the length of time they have spent in
    pre-sentence custody. Furthermore, there could be occasions when an offender
    given less than the maximum sentence could spend more time in jail than an
    offender receiving the maximum sentence, if the latter was released on bail,
    pending trial, or served less time in pre-sentence custody. It follows that
    whether you find it is mandatory to consider pre-sentence custody in crafting
    the sentence, or you consider it as part of the sentence already served,
    pre-sentence custody also ought to be considered as part of the punishment when
    dealing with maximum sentences.

[26]

I agree with that reasoning and, following this courts decision in
Rotman
,
    I conclude that the sentence imposed in this case exceeded the statutory
    maximum and was therefore illegal.

[27]

The Crown concedes that the sentencing judge erred in his calculation of
    credit for pre-sentence custody. The sentencing judge gave the appellant 1.5 to
    1 credit for 273 days of pre-sentence custody, which he mistakenly calculated
    as 13 months rather than 13 months and 19 days. The Crown agrees that this
    minor error should be corrected on appeal.

[28]

I conclude, accordingly, that the sentence imposed exceeded the
    statutory maximum by one month and 19 days and was therefore illegal.

[29]

Given my conclusion that the sentence imposed was illegal, it is not
    necessary for me to consider the other issues raised by the appellant as
    grounds of appeal.

What is the appropriate
    sentence?

[30]

The appellant is a 50 year-old man, with a troubled family history. He
    is a lifelong alcoholic with mental health issues. In recent years he has
    suffered the loss of his half-brother, step-father, brother and mother. The
    appellant is single and childless.

[31]

The circumstances of these offences were very aggravating. The appellant
    drove while intoxicated in a frighteningly dangerous manner, driving at high
    speed through red lights and stop signs in a residential area. His conduct displays
    a disturbing disregard for the authority of the police and for court orders.

[32]

The appellants criminal record for similar offences is deplorable. Of
    particular concern is the fact that in 2013, he committed similar offences,
    driving in an erratic and dangerous manner in flight from the police while
    intoxicated and while disqualified from driving. For those offences, he
    received 13 months in custody, on top of credit for four and one half months pre-sentence
    custody. This was the appellants previous longest sentence, in part because of
    his request for a sentence that would facilitate his admission to Ontario
    Correctional Institute so he could access programs for alcoholism and mental
    illness. Unfortunately, he was not admitted to that institution.

[33]

Upon his release in 2014, it appears that the appellant did not take any
    steps to access treatment or help for his illnesses. Since his arrest on these
    charges, the appellant has taken some steps to seek treatment in custody.
    Regrettably, however, the fresh evidence filed by both the appellant and the
    respondent presents a mixed picture of his success in that regard. He has
    completed some programs while in custody and has worked with the John Howard
    Society with a view to arranging assistance upon his release. However, his
    progress was halted when he was transferred to face other outstanding charges
    in Alberta. He has now been returned to the penitentiary in Beaver Creek. The
    parole officer responsible for his supervision reports that the appellant has
    been unwilling to follow the directions and recommendations of his case
    management team, and that he is argumentative and disrespectful, focused upon
    his release rather than addressing the needs that are identified in his
    correctional plan.

[34]

While I am sympathetic to the view that in the case of an offender who
    suffers from alcoholism and mental health problems, rehabilitation must be
    given significant weight, the appellant seems only to consider treatment as an
    option when faced with criminal charges. He has continued to conduct himself in
    a manner that is extremely dangerous to the public and to disregard court
    orders designed to protect the public from the risk he poses. He appears to be
    making little progress in custody.

[35]

I conclude that this case calls for a substantial period of
    incarceration for the purposes of general and specific deterrence and for the
    protection of the public. On the other hand, the sentence should not be one that
    ignores rehabilitation or discourages the appellant from seeking help for his
    addiction and mental illness.

[36]

In my view, notwithstanding the very serious circumstances of these
    offences, this is not a case calling for the maximum sentence. The appellants
    previous longest sentence is the equivalent of approximately 18 months. In my
    view, the appropriate sentence is four- years imprisonment, less 13 months and
    19 days credit for pre-sentence custody, that is, 34 months and 11 days from
    the date of sentence, June 9, 2015.

DISPOSITION

[37]

For these reasons, I would grant leave to appeal, admit the fresh
    evidence, allow the appeal, set aside the custodial portion of the sentence
    with respect to counts 3, 4, 6, 7 and 8 and in its place, substitute a sentence
    of 34 months and 11 days. In all other respects, the sentence imposed by the sentencing
    judge is maintained.

Released: January 17, 2017

Robert J. Sharpe
    J.A.

I agree K. van
    Rensburg J.A.

I agree G. Pardu
    J.A.


