



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Gunning,







2008 
          BCCA 22



Date: 20080122

Docket: CA034914

Between:

Regina

Respondent

And

Jody 
    James Gunning

Appellant




Before:


The 
          Honourable Chief Justice Finch




The 
          Honourable Mr. Justice Smith




The 
          Honourable Mr. Justice Frankel








G. 
          Orris, Q.C.


Counsel for the Appellant




A. 
          Budlovsky, Q.C.


Counsel for the Respondent




Place 
          and Date of Hearing and Judgment:


Vancouver, British Columbia




15 November 2007




Date 
          of Written Reasons:


22 January 2008









Written 
          Reasons by
:




The 
          Honourable Mr. Justice Smith




Concurred 
          in by:




The 
          Honourable Chief Justice Finch
The Honourable Mr. Justice Frankel



Reasons 
    for Judgment of the Honourable Mr. Justice Smith:

[1]

At the hearing of this sentence appeal, we granted leave to appeal 
    and allowed the appeal with reasons to follow.  The appeal was brought from 
    a sentence of five and one-half years imprisonment (after credit of two and 
    one-half years for pre-sentencing custody) imposed on March 22, 2007 by Mr. 
    Justice Parrett in the Supreme Court of British Columbia upon the appellants 
    plea of guilty of manslaughter.  We set aside the sentence and substituted 
    a sentence of three years imprisonment.  These are my reasons for that disposition.

[2]

The appellant entered his plea with the consent of the Crown after 
    a ruling of Mr. Justice Parrett on a
voir dire
at the commencement 
    of the appellants second trial on an indictment charging him with second 
    degree murder of Chester Charlie, who was shot to death at the appellants 
    home in Fraser Lake on May 6, 2000.  On October 3, 2001, the appellant was 
    convicted by a jury of second degree murder and was sentenced to life in prison 
    without eligibility for parole for ten years.  On September 9, 2003, this 
    Court dismissed his appeal:  see 2003 BCCA 477, 186 B.C.A.C. 225.  On May 
    19, 2005, the Supreme Court of Canada allowed his further appeal, set aside 
    his conviction, and ordered a new trial:  see [2005] 1 S.C.R. 627, 2005 SCC 
    27.

[3]

I will adopt the summary of the circumstances of the offence set out 
    in the reasons given by the Supreme Court of Canada:

[8]        
    In the early morning hours of May 6, 2000, in Fraser Lake, British Columbia, 
    at the end of a long night of drinking, an altercation between two men left 
    one dead and another in police custody.  The evening before, Mr. Gunning had 
    a party at his home, inviting some friends.  Although the party did not really 
    get started until later in the day, Mr. Gunning started his drinking in the 
    early afternoon of May 5.  His common law spouse left the party some time 
    between 11 p.m. and midnight to have a few drinks with some friends at a local 
    pub.  She returned around 3 a.m. and many of the pub occupants followed, none 
    of whom were invited.  Among them was Chester Charlie.  He did not know Mr. 
    Gunning or his common law spouse.

[9]
Shortly before the shooting, Mr. Gunning found 
    Mr. Charlie sitting on the edge of his bed going through the bottom drawer 
    of his night stand.  He became angry and asked Mr. Charlie "what the 
    fuck he was doing".  He told Mr. Charlie to get out, to which Mr. Charlie 
    responded "get the fuck out".  Mr. Gunning told Mr. Charlie that 
    it was his house and that he should get out.  Mr. Charlie then laid back on 
    the bed, crossed his feet and said "[m]ake me".  When Mr. Gunning 
    went to brush Mr. Charlie's feet off the bed, Mr. Charlie kicked him back 
    up against the door.  Mr. Gunning testified that he was scared, wanted Mr. 
    Charlie out of his house, felt he needed to intimidate or scare him and was 
    too drunk to fight.

[10]

Mr. Gunning 
    kept a shotgun, unloaded, in a locked storage locker, the keys to which were 
    kept in a toolbox in the basement.  Mr. Gunning had no recollection of going 
    to the basement, getting his keys, opening the locker, obtaining and loading 
    the shotgun or returning upstairs.  He did remember going back into the bedroom 
    with the shotgun in hand.  Mr. Charlie was sitting on his bed. He testified 
    that he did not threaten or point the gun at Mr. Charlie.  When he told Mr. 
    Charlie to get out of his house, Mr. Charlie laughed, called him a "real 
    pussy", left the bedroom and started walking down the hall.

[11]

Mr. Gunning testified that, relieved Mr. Charlie was leaving, he followed 
    him down the hall.  Believing Mr. Charlie had gone, Mr. Gunning began to go 
    down the stairs to the basement when he heard a noise.  He went back upstairs 
    and saw Mr. Charlie leaning over a coffee table in the living room.  He asked 
    Mr. Charlie what his problem was.  Mr. Charlie responded by saying "fuck 
    you" and spat at him.  Mr. Gunning "shook his fists" at Mr. 
    Charlie and said "[j]ust get out."  In that instant, he saw Mr. 
    Charlie lying on the coffee table in a pool of blood. Mr. Gunning testified 
    that he had been holding the shotgun in one hand, "like you'd hold a 
    pistol".  He testified that he ejected the shell from the shotgun, and 
    at that moment "everything closed in on [him]". The time was around 
    6 a.m.

[12]
At approximately 6:10 a.m. Mr. Gunning placed 
    a call to Sgt. Appleton, whom he knew, telling him that he had shot someone 
    and that he had a "shotgun with two shells in it".  Mr. Gunning 
    testified that he did not remember any of the conversation.  Mr. Gunning was 
    soon after arrested in his basement.  The shotgun was found on a couch in 
    the basement holding an additional shell in its chamber.  Another live round 
    was found on the couch beside the weapon.  A live shell was also found beside 
    the deceased's head, along with a spent shell, fired from the weapon, under 
    his leg.

[4]

The appellant was arrested on May 6, 2000 shortly after the homicide.  
    He was granted bail ten days later and remained on bail until his conviction 
    on October 3, 2001.  Thereafter, he was released on bail for periods of time 
    pending his appeal to this Court and, after his appeal to the Supreme Court 
    of Canada was allowed, pending his new trial.  He was returned to prison when 
    the sentence herein was imposed, where he has remained to date.  His sentencing 
    proceeded on the basis that, as of the sentencing date, he had served 886 
    days of his life sentence for murder and had been on bail and bound by restrictive 
    conditions for 1,567 days.

[5]

In accepting the plea of guilty of manslaughter, the Crown acknowledged 
    that the appellants consumption of alcohol raised a reasonable doubt as to 
    his intention to kill Mr. Charlie.  The Crown submitted that the appropriate 
    range of sentence in the circumstances was eight to 12 years, subject to double 
    credit for the first ten days of custody and to one-for-one credit for the 
    approximately two and one-half years served by the appellant on the murder 
    sentence.  The appellant sought credit of three-for-one or two and one-half-for-one 
    for the time served on the basis that he had been wrongly stigmatized as a 
    murderer and that the time served amounted to very hard time, which was 
    exacerbated by the restrictive conditions of his bail and the long delay from 
    the inception of criminal proceedings to their final disposition.  He sought 
    a sentence of one day which, on his calculation of pre-sentencing credit, 
    would have represented an effective sentence of approximately six to seven 
    and one-half years.

[6]

The learned trial judge did not accede to the appellants submissions.  
    After concluding that eight years would be a fit sentence, he said,

[52]      I have read with interest Mr. Orris's [appellants counsels] 
    submissions and cases on the submission that this accused should be credited 
    at a rate of 2.5 to one or three to one for the time he has served.  While 
    the rule of thumb for pre-trial custody is two to one, it is no hard and fast 
    rule.  The extension of that proposition has been a fertile field for defence 
    counsel for some years, and the present case is, I suggest, an innovative 
    approach by counsel.

[53]      In my view, such an approach would ignore the entire underlying 
    rationale for the increased credit as it is outlined in the authorities.  
    This accused was released on bail after 10 days pre-trial custody.  The balance 
    of time served was on his sentence after his conviction in relation to the 
    present offences albeit for a conviction that has since been set aside.  In 
    my view, he had full access to all programs and other benefits of the jail 
    system as any prisoner under sentence would, and the underlying principle 
    and rationales are restricted in their application and should not be extended 
    in the circumstances of this case.

[54]      I would credit the accused at a rate of two to one for his pre-trial 
    custody, but only straight time for the balance of the time served.  I sentence 
    you, Mr. Gunning, sir, to serve a term of imprisonment of eight years less 
    2.5 years for the time you have already served.

(His reasons are indexed at 2007 BCSC 505, [2007] B.C.J. 
    No. 750 (QL)).

[7]

Before us, the appellant contended that the trial judge had made a 
    number of errors in principle.  I find it necessary to deal with only one 
    of these contentions.

[8]

I agree with the appellants submission that the trial judge erred 
    in principle in paragraph 53 of his reasons, quoted above.  The absence of 
    rehabilitative programs is not the entire rationale for increased credit 
    for pre-sentencing time served in custody.  The trial judge overlooked the 
    companion consideration  pre-sentencing custodial time does not normally 
    count for purposes of parole eligibility and statutory release.  Justice Laskin 
    explained the rationale in
R. v. Rezaie
(1996), 31 O.R. (3d) 
    713, 112 C.C.C. (3d) 97 (C.A.) at 104:

Section 
    721(3) [now s. 719(3)] of the
Criminal Code
provides:

In 
    determining the sentence to be imposed on a person convicted of an offence, 
    a justice, provincial court judge or judge may take into account any time 
    spent in custody by the person as a result of the offence.

Although this section is discretionary, not mandatory, 
    in my view a sentencing judge should ordinarily give credit for pre-trial 
    custody.  At least a judge should not deny credit without good reason.  To 
    do so offends one's sense of fairness.  Incarceration at any stage of 
    the criminal process is a denial of an accused's liberty.  Moreover,
in two respects, pre-trial custody is even more onerous than post-sentencing 
    custody.  First, other than for a sentence of life imprisonment, 
    legislative provisions for parole eligibility and statutory release do 
    not take into account time spent in custody before trial (or before sentencing)
.  
    Second, local detention centres ordinarily do not provide educational, retraining 
    or rehabilitation programs to an accused in custody waiting trial.  For 
    these reasons, pre-trial custody is commonly referred to as  "dead 
    time", and trial judges, in deciding on an appropriate sentence, frequently 
    give credit for double the time an accused has served.

[My emphasis.]

These remarks were adopted by this Court in
R. 
    v. Mills
, 1999 BCCA 159, 133 C.C.C. (3d) 451, at para. 42 and by the 
    Supreme Court of Canada in
R. v. Wust
, [2000] 1 S.C.R. 455, 
    2000 SCC 18, at para. 28.

[9]

Here, the 886 days served by the appellant on his life sentence for 
    murder does not count for parole eligibility or statutory release and, by 
    giving one-for-one credit against the eight-year sentence for manslaughter, 
    the trial judge denied him this benefit.  The loss of this benefit works unfairly 
    to the appellant in a way that becomes readily apparent when the effect on 
    the manslaughter sentence of his time served under the life sentence is examined.  
    The trial judge gave the appellant two and one-half years credit (30 months) 
    against a fit sentence of eight years for manslaughter, and imposed a sentence 
    of five and one-half years (66 months).  The appellant will be eligible for 
    parole after serving one-third, or 22 months, of that sentence:
Corrections 
    and Conditional Release Act
, S.C. 1992, c. 20, s. 120(1).  However, 
    given the 30 months he served on the life sentence for murder, he will have 
    served a total of 52 months by his parole eligibility date.  Thus, if he is 
    released at the earliest opportunity under the current sentence of five and 
    one-half years, he will have been in custody for 20 months longer than if 
    he had been convicted of manslaughter and sentenced to eight years after his 
    first trial.  Looking at the sentence another way, parole eligibility after 
    52 months would translate to a sentence of 156 months or 13 years.  Upon recognizing 
    this unfairness during the hearing of this appeal, Crown counsel conceded 
    that the appellant should be placed in the same position as if he had been 
    convicted of manslaughter and sentenced to eight years after his first trial 
    and that the sentence must therefore be adjusted.

[10]

However, it is not possible to superpose a fit sentence on an eight-year 
    sentence notionally imposed after the first trial such that parole eligibility 
    and statutory release coincide perfectly.  A sentence focussed entirely on 
    reconciliation of parole eligibility and statutory release dates would not 
    be a fit and just sentence for the appellants crime.  Rather, it would be 
    a very short sentence in a provincial institution.  As well, there would be 
    no subsequent period of supervised parole to assist in the appellants reintegration 
    into the community.

[11]

Accordingly, in my view, two-for-one credit should be given for the 
    30 months served on the life sentence rather than the one-for-one credit given 
    by the trial judge.  This would reduce the eight years by 60 months and would 
    result in a sentence of three years, which I would substitute for the five 
    and one-half years imposed by the trial judge.

[12]

On this basis, the appellant will be eligible for parole after serving 
    one year, that is, on March 23, 2008.  His total time served as of his parole 
    eligibility date will be 42 months (the 30 months served on the earlier life 
    sentence plus 12 months served on the current manslaughter sentence).  This 
    translates notionally to a sentence of ten and one-half years which, although 
    greater than the eight years considered fit by the trial judge, is not so 
    much greater that it could be said to be demonstrably unfit.  Moreover, it 
    is significantly less than the notional sentence of 13 years that the trial 
    judge effectively imposed.  In the result, if the appellant should be granted 
    parole at the earliest available date, which seems likely since we are advised 
    he has been a model prisoner, the result will be that he will have served 
    ten months more than if he had been sentenced to eight years for manslaughter 
    after his first trial, and ten months less than he would serve under the impugned 
    sentence.  As well, he will be subject to supervised parole when he is released.  
    This sentence strikes an appropriate balance in the unusual circumstances 
    of this case between the interest of the appellant in obtaining early release 
    for good behaviour and the interests of society in his serving a fit and just 
    sentence and, as well, in his rehabilitation and orderly reintegration into 
    society as a law-abiding citizen.

[13]

It is for those reasons 
    that I concluded that the appeal should be allowed, the sentence of five and 
    one-half years set aside, and a sentence of three years substituted.

The 
    Honourable Mr. Justice Smith

I agree:

The Honourable Chief Justice Finch

I agree:

The Honourable Mr. Justice Frankel


