



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pilon, 2014
    ONCA 79

DATE: 20140129

DOCKET: C54551

Goudge, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Davy Pilon

Appellant

John Hale, for the appellant

Greg Skerkowski, for the respondent

Heard: October 31, 2013

On appeal from the sentence imposed on March 23, 2011 by
    Justice Douglas J.A. Rutherford of the Superior Court of Justice.

Goudge J.A.
:

Introduction

[1]

After a trial by judge and jury, the appellant was convicted on
    September 21, 2010 of breaking and entering the home of Kim Logan, assaulting
    him, threatening to cause him bodily harm, and wounding him by stabbing him a
    number of times with the screw driver he had brought with him to effect his
    break-in.

[2]

The appellant was sentenced to eight years in prison for the offences
    relating to the break-in of Mr. Logans home, and six months consecutive for
    breaching his conditions of release on an outstanding charge of mischief, by
    failing to keep the peace and be of good behaviour.  These sentences were in
    addition to the three years eight months he served in custody prior to his
    sentencing.

[3]

The appellant abandoned his appeal from conviction, but appeals his sentence. 
    He raises three arguments:

(a)

the trial judge erred in principle
    by failing to quantify the credit given to the appellant for presentence
    custody;

(b)

the trial judge erred by
    over-emphasizing the appellants criminal record;

(c)

the sentence imposed is outside
    the appropriate range and therefore unfit.

[4]

For the reasons that follow, I conclude that these arguments all fail. 
    I would therefore dismiss the appeal.

The Facts

[5]

In sentencing the appellant, the trial judge set out the facts of the
    offences.  On the evening of June 17, 2007, the appellant broke into Mr.
    Logans home intending to steal either money or property he could sell.  Mr.
    Logan heard his back door open, and on coming up from the basement, came face
    to face with the appellant inside the back door.  The appellant raised his
    screw driver and said get the fuck out of my way or Ill kill you.  Fearing that
    the appellant was going to stab him, Mr. Logan lunged at him, grasped the shaft
    of the screw driver, and held on to it.

[6]

A struggle ensued that took the two men back out the door and across the
    deck.  As they fought, they rolled across the garden and then into the backyard
    swimming pool.  Mr. Logan kept trying to deflect the thrust of the screw driver
    but was relatively unsuccessful.  At the same time, he was repeatedly punched in
    the head.  Mr. Logan suffered a dozen or more puncture wounds to his head and
    his shoulders, together with scrapes, bruises and abrasions to other parts of
    his body.  The trial judge found that it was only by sheer good fortune that he
    was not more seriously wounded.

[7]

The struggle ended when Mr. Logan succeeded in getting the screw driver
    away from the appellant, and his neighbours arrived to assist, followed by the police,
    who immediately arrested the appellant.  The appellant has been in custody ever
    since.

The Reasons for Sentence

[8]

The trial judges reasons are clear and comprehensive. After setting out
    the facts of the offences, he described the serious injuries sustained by Mr.
    Logan and the lasting physical and psychological consequences for him of that
    night.

[9]

The trial judge then turned to the appellants lengthy criminal record. 
    It consisted of more than 100 convictions, most for property-related offences,
    but some involving violence or threats of violence.  While his longest prior
    sentence was three years in prison for robbery, he had spent a total of about twenty
    of his forty-eight years in jail or prison.

[10]

The
    trial judge dealt at length with the appellants presentence custody.  It was largely
    spent at the Ottawa-Carleton Detention Centre.  The trial judge acknowledged
    that the crowded conditions he endured were seriously inadequate, and that this
    dead time did not attract any of the remission mechanisms available after
    sentencing.  The trial judge noted, however, that given the appellants record,
    it was unlikely he would be granted much in the way of early release.  The trial
    judge summarized the appellants presentence custody as being significant
    punitive time served in harsh conditions.  He said that while he would not
    express a precise credit to be given for this, he would take the appellants presentence
    custody into serious account in determining an appropriate sentence.

[11]

The
    trial judge then highlighted the three sentencing objectives he found most
    important in the circumstances of these offences and this offender: denouncing
    the appellants conduct; deterring him personally from further crime; and
    separating him from the community for a considerable time to ensure public
    safety, given the likelihood he would continue to be a menace to society.

[12]

With
    this context, the trial judge returned to the relevant circumstances of this
    offence and this offender: the serious nature of the crimes, the long lasting
    harm to Mr. Logan, the lengthy criminal record of the appellant (whom this
    experienced trial judge described as the most recidivist persistent and
    unrepentant offender he had ever had to deal with), and the appellants three years
    eight months in dead time presentence custody under adverse conditions.  He
    then concluded by sentencing the appellant to eight years for the offences
    related to the break-in and a further six months for breaching his bail undertaking.

Analysis

[13]

The
    appellant raises three arguments.  First, he says that the trial judge erred in
    principle by failing to quantify the credit given to the appellant for his presentence
    custody.

[14]

Before
    turning to this argument, it should be noted that the amendments to the
Criminal
    Code
, R.S.C. 1985, c. C-46,
introduced by the
Truth in Sentencing Act
, S.C. 2009 c. 29, now
    require, among other things, that the sentencing court state the amount of time
    it credits to the offender for presentence custody and must give reasons for
    doing so.  This Act came into force on February 22, 2010, but applies only to
    persons charged after that date: see
R. v. Clarke,
2013 ONCA 7, 293
    C.C.C. (3d) 369.  Since the appellant was charged in June 2007, these
    amendments have no application to his case.

[15]

Here
    the trial judges reasons demonstrate that he was fully aware of the time the
    appellant spent in presentence custody, the harsh conditions he experienced as
    a consequence and that this was dead time for remission purposes.  While he was
    explicit about not quantifying a time period to credit the appellant for this,
    the trial judge made very clear that he was taking it into serious account in
    determining the appropriate sentence.  In other words, he did not fail to take
    the appellants presentence custody into consideration, nor did he fail to
    explain its importance in reaching his conclusion.

[16]

In
    my view, the refusal of this trial judge to express any arithmetic formula for precisely
    how much credit he would give for the appellants presentence custody does not
    constitute an error in principle (although the 2010 amendments would now appear
    to require that he proceed differently).

[17]

This
    court has historically rejected the use of a particular mathematical formula
    for crediting presentence custody:  see
R. v. Rezaie
(1996), 31 O.R.
    (3d) 713, 112 C.C.C. (3d) 97 (C.A.).  The rationale for this is the desirability
    of determining an appropriate sentence on the basis of a full consideration of
    all the relevant circumstances.  Using a predetermined mechanical calculation
    for presentence credit puts at risk this focus on the particular case.

[18]

The
    refusal in this case to provide a quantification of the precise credit for
    presentence custody is consistent with this approach to sentencing.  What
    matters is that the appellants presentence custody, whether quantified or not,
    be taken into account along with the other relevant considerations in his case
    in determining a just outcome.  This holistic evaluation can be done even if
    credit for presentence custody is not precisely quantified.  That is consistent
    with the reality that sentencing is an art not a science.

[19]

That
    is the way the trial judge proceeded here. He considered presentence custody as
    one of the many factors as he put it:

[T]o take into account in a unique balancing exercise in a
    judges difficult task of fashioning a sentence or sentences to meet the
    sentencing objectives in an individual offenders circumstances.

[20]

It
    is true that if an appellate court is asked to determine whether a sentence is
    fit, it is assisted by knowing the precise credit given by the trial judge for presentence
    custody.  Absent that, the appellate court has to determine for itself what
    would be appropriate.  However, I do not think that declining to make life
    easier for the appellate court constitutes an error in principle.

[21]

I
    would therefore not give effect to the appellants first argument.

[22]

The
    appellants second argument is that the trial judge erred by over-emphasizing
    the appellants criminal record and effectively imposing preventative detention
    on this appellant.  In addition, he says that the sentence was an excessive
    increase over the longest sentence he had previously received.

[23]

I
    would reject this argument.  The appellants criminal record justifiably
    troubled the trial judge.  It was very lengthy and stretched over almost 30
    years.  He was quite entitled to conclude that rehabilitation efforts had
    failed again and again and that the appellants record made it very likely that
    on release he would continue his life of crime.  This made it entirely
    appropriate for the trial judge to separate the appellant from society for a
    considerable period of time in the interest of public safety.

[24]

Thus,
    I see no error in the trial judge considering that the appellants criminal
    record was an important demonstration of the appellants inability to reform,
    which in turn supported the need for a significantly increased prison sentence
    in order to protect the public.

[25]

The
    appellants final argument is that in all the circumstances and whatever credit
    may be given for presentence custody, the sentence of eight years is outside
    the appropriate range for the break-in related offences and this offender.

[26]

I
    do not agree.

[27]

The
    facts of these offences are very serious.  The appellant broke into Mr. Logans
    home.  The sanctity of his home and Mr. Logans right to feel secure in it reflects
    a value of fundamental importance in our society.  The appellant confronted Mr.
    Logan, threatened to kill him and followed that by violently attacking him,
    using as a weapon the screw driver he had brought to the scene.  As a
    consequence, Mr. Logan suffered significant physical and psychological harm.

[28]

The
    facts of the offender are equally troubling.  He is a career criminal who has
    resisted repeated rehabilitation attempts.  The trial judge, with good reason,
    found that he was very likely to continue to be a menace to society once he is
    released.

[29]

It
    is true that the appellant spent three years eight months in dead time presentence
    custody in adverse conditions.  However, the trial judge found that, given his
    record, it was unlikely the appellant would be granted parole.  He has been
    both a parole violator and a statutory release violator.  A substantial reason
    for his incarceration prior to sentence was his repeated breaches of conditions
    of release.  Moreover, he remains a danger to society and unlikely to reform. 
    In my view, given these considerations, the appellant would deserve no more
    than 1:1 credit for his presentence custody.  With this credit, the time in prison
    received by this offender for the break-in related offences is effectively eleven
    years eight months.

[30]

In
    my view, while the trial judge did not make a finding that the appellant knew
    or was reckless as to whether Mr. Logans home was occupied, his actions that
    night have almost all the hallmarks of a home invasion as that phrase is used
    in s. 348.1 of the
Criminal Code
.  In
R. v. Wright
(2005)
, 83 O.R. (3d) 427, 216 C.C.C.
    (3d) 54, this court said that the range of sentences found in home invasion
    cases is as high as 13 years at the upper end.

[31]

In
    this context, it must be remembered that ranges are no more than guidelines. 
    Given that, and given the circumstances of these offences and this offender, I
    conclude that an effective sentence of eleven years eight months cannot be said
    to be outside the range of sentences for these kinds of offences.

[32]

Thus
    this argument fails as well.

[33]

The
    appeal must therefore be dismissed.

Released: January 29, 2014 (S.T.G.)

S.T. Goudge J.A.

I agree. E.A. Cronk J.A.

I agree. S.E. Pepall J.A.


