



COURT OF APPEAL FOR
    ONTARIO

CITATION:

R. v. Codner, 2013
    ONCA 138

DATE: 20130306

DOCKET: C55554

Epstein, Lauwers and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Floyd Codner

Appellant

Mark Halfyard, for the appellant

Mabel Lai, for the respondent

Heard: February 12, 2013

On appeal from the sentence imposed on December 17, 2009 by
    Justice M.P. Eberhard of the Superior Court of Justice, sitting without a jury.

Epstein J.A.:

[1]

The only issue in this sentence appeal is the credit the sentencing
    judge gave the appellant for his 595 days of pre-sentence custody.

[2]

The appellant pled guilty to robbery (x2), possession of a loaded
    prohibited firearm and a breach of a firearms prohibition.  The charges arose
    out of the appellants entering an open garage armed with a loaded prohibited firearm,
    binding the two people in the garage and robbing them of cash and electronic
    equipment.  In this criminal activity the appellant was accompanied by his two
    co-accused.

[3]

At the sentencing hearing, the Crown and the defence counsel jointly
    submitted that a period of incarceration of between ten to twelve years was the
    appropriate range of sentence in the light of the mandatory minimums of seven
    years for robbery with a firearm and three years for possession of a loaded
    firearm.

[4]

At the time of sentencing, the appellant, 30, had previously been attending
    George Brown College.  He was married, although separated.  He had three
    children with whom he had a close relationship and considerable involvement. 
    He had an unenviable criminal record that included prior convictions for
    possession of a schedule I substance, possession of an unregistered-restricted
    weapon (x3), possession for the purpose of trafficking, use of an imitation
    firearm and obstructing a peace officer.  He was under two weapons prohibitions
    orders and a lifetime mandatory order under s.109 of the
Criminal Code
.

[5]

At the sentencing hearing and before this court, the divide between the
    parties was the credit to be given for the 595 days the appellant spent in
    pre-sentence custody.  The Crown argued that credit should be given on a ratio
    of 1.5:1. The defence argued there was nothing in this case that justified deviating
    from the standard 2:1 ratio.

[6]

For the reasons that follow, I would grant leave to appeal sentence and
    dismiss the appeal.

The Sentencing Reasons

[7]

The sentencing judge found that the combination of the seriousness of
    the home invasion-style robbery, the continued use of a firearm in spite of
    previous escalating sentences and repeated prohibition orders, the possession
    of a loaded firearm in the vehicle with all of the potential dangers to the
    public, and the fact that the appellant committed the robbery when police
    intervention was foreseeable, justified a total sentence of 10 years.

[8]

While not required to do so, the trial judge made the mandatory minimum
    sentences, consecutive. She reasoned that while the crimes attracting the
    minimum sentences were part of a continuous occurrence, the armed robbery alone,
    together with the circumstances of the offender, particularly the nature and
    extent of his criminal record, warranted a seven-year sentence.

[9]

The appellant had served one year, seven months and thirteen days in
    pre-sentence custody.  The trial judge was willing to accord the appellant credit
    for time served of only two years.   This worked out to a credit calculated on
    a 1.2.1 basis. The trial judge found that it was the appellants own conduct;
    namely, failing to comply with the prohibition orders, that disentitled him
    to the trust upon which pre-trial release is based.  The appellant therefore
    brought about his own pre-sentence detention.

Analysis

[10]

An
    appellate court can only interfere with a sentence where it reflects an error
    in law or is demonstrably unfit.

[11]

The
    appellant submits that the trial judge committed two legal errors in denying
    the standard 2:1 credit.  First, it was an error to deviate from the standard
    credit on the basis of bails having been refused due to appellants previous
    convictions for failure to comply with weapons prohibition orders. Second, the
    appellant argues that the basis upon which the trial judge denied credit on the
    standard 2:1 basis, led to the error of punishing the appellant twice for the
    same conduct.

[12]

As
    I will explain, I agree with the second challenge to the exercise of the trial
    judges discretion in denying a full 2:1 credit for pre-sentence custody that
    has been advanced by counsel for the appellant

[13]

The
    appellant was charged before the coming into force of the
Truth in
    Sentencing Act
, and so the provisions of that Act do not apply to him. 
    Under the former law, judges normally gave two for one credit for pre-sentence
    custody:
R. v. Pangman
(2001), 154 C.C.C. (3d) 193 and
R. v.
    Francis
, [2006] O.J. No. 1287 (C.A.). The underlying rationale is twofold:
    first, people denied bail do not get earned remission towards early parole and
    second, remand detention centers lack rehabilitative programs that are
    available in institutions where an accused is held on a more permanent basis. It
    should also be kept in mind that an accused is being held in custody despite
    the presumption of innocence.

[14]

Although
    trial judges were entitled to depart from the practice of two for one credit,
    they were obliged to provide reasons that demonstrated that the deviation was
    on a principled basis: Departure from the normal credit has been found
    justified in cases such as where; 1) detention in pre-trial custody was the result
    of the accuseds own conduct; 2) the accused would be unlikely to get early
    release on parole; and 3) the accused has been held in remand at an institution
    that has access to rehabilitative programs.
R. v. Wust
, [2000] 1
    S.C.R. 455, at para. 45.

[15]

Here,
    the trial judge found that the appellants breaches of the prohibition orders
    brought upon himself a disentitlement to the trust necessary for pre-trial
    release.  While as we have noted, one of the principled bases where appellate
    courts have recognized it is appropriate to deny 2:1 credit is where the
    detention is the result of the accuseds own conduct, the question is whether
    this rationale applies in the circumstances of this case.

[16]

While
    the appellant advanced several arguments as to why this rationale should not
    apply to breach of prohibition orders, our difficulty with this aspect of the
    trial judges reasoning in not allowing the appellant the standard credit for
    pre-sentence custody is that there was no evidence that it was the breach of
    prohibition orders as opposed to the appellants prior record or some other
    factor that resulted in a denial of bail in this case. The transcript of the
    bail hearing was not before the court.  Simply put, the reason for the denial
    of interim release pending trial appears to have been based on surmise.

[17]

However,
    in this case, the Crown points out, correctly in my view, that any argument
    arising out of the bail hearing must be considered in the light of the fact
    that the appellant bore the onus to justify his release, as per s.
    515(6)(a)(viii) of the
Criminal Code
:

(6) Unless the accused, having been given
    a reasonable opportunity to do so, shows cause why the accuseds detention in
    custody is not justified, the justice shall order, despite any provision of
    this section, that the accused be detained in custody until the accused is
    dealt with according to law, if the accused is charged (
a
) with an indictable offence, other than an offence listed in
    section 469
(viii) that is alleged to
    involve, or whose subject-matter is alleged to be, a firearm, a cross-bow, a
    prohibited weapon, a restricted weapon, a prohibited device, any ammunition or
    prohibited ammunition or an explosive substance, and that is alleged to have been
    committed while the accused was under a prohibition order within the meaning of
    subsection 84(1).

[18]

The
    Crown further submits that the breaches at issue arose from a robbery and a firearm-related
    offence.  They are therefore inextricably connected to his criminal record. As
    well, the appellants conduct demonstrated unchecked disdain for court orders,
    which in turn rendered him not releasable.

[19]

Taking
    these various arguments into consideration and the deference afforded the trial
    judge, I am not convinced by the appellants first argument that the trial
    judge erred in principle in denying a 2:1 credit for pre-sentence custody on
    the basis that the appellant was the author of his own misfortune. I agree with
    the respondents position, that the trial judge was entitled to conclude that
    the appellants own actions had contributed to his being denied bail, given
    that the onus had shifted to him and that the breaches for which he was charged
    were part of a pattern that is clear from his criminal record.

[20]

I
    would therefore not give effect to this first argument.

[21]

In
    support of his double punishment argument the appellant relies on the decision
    of the British Columbia Court of Appeal in
R. v. Calder Berg
(2007),
    221 C.C.C. (3d) 449.  That case dealt with this issue in the context of whether
    the repeated breach of a driving prohibition (rather than a weapons
    prohibition) disentitled the accused to normal credit for pre-sentence
    custody.  The court found that the trial judge erred in taking the appellants
    continued driving while prohibited into account at three different points in
    his sentencing: first, as an aggravating factor justifying a higher sentence
    for the offence of criminal negligence causing death; second, as an aggravating
    factor justifying a higher sentence with respect to the offences of driving
    while prohibited; and third, as a basis for refusing to give the appellant 2:1
    credit.  This amounted to a form of unjustified double counting.

[22]

I
    am more swayed by the double counting submission. In
Calder Berg
, the
    trial judge denied 2:1 credit for denunciatory purposes, which was the error in
    principle that rendered the double counting unjustifiable. However, the
    reasons articulated by the British Columbia Court of Appeal are largely
    applicable here as well. While the trial judge did not deny the credit (at
    least explicitly) for denunciatory purposes, the concern regarding double
    counting still applies. Here, the appellants sentence was impacted on three
    different levels by his prior weapons convictions, which included the mandatory
    weapons prohibitions: it was an aggravating factor which increased both the
    overall sentence and specific sentence, it impacted the appropriate range of
    sentence due to the applicable mandatory minimum sentence, and the trial judge
    used the violation of the weapons prohibition to reduce his pre-sentence
    custody. All of these amount to the type of double counting with which the
    British Columbia Court of appeal was concerned in
Calder Berg
.

[23]

Accordingly,
    I am of the view that the trial judge erred by imposing an unjustified double
    penalty for the appellants breach of prohibition orders.

[24]

It
    follows that the trial judges determination of the appropriate pre-trial
    credit does not attract the usual deference on appeal.  This court is therefore
    charged with the responsibility of determining whether or not we consider the
    sentence ultimately imposed, nonetheless, to be fit.
R. v. Land-Watt
,
2007 ONCA 642, 228 O.A.C. 394 and
R. v. Situ
, 2010 ONCA 683, O.J. No
    4427.

[25]

In
    my view, it was.

[26]

The
    sentence imposed, which is just slightly more than 11 years, falls within the
    range of 10 to 12 years proposed by both parties.  It is a sentence that is,
    all things considered, justified. This was a serious crime, committed by an
    individual with a criminal record for firearms and violence. Parliament,
    through its mandatory minimum sentencing regime has sent a strong signal to
    those contemplating such criminal conduct.  Denunciation, deterrence, and protection
    of the public are being taken seriously attracting a serious response.

[27]

In
    the end, whether the trial judge properly considered the breach of the firearms
    prohibition as a standalone offence; as an aggravating factor for the robbery;
    and as a factor weighing against enhanced pre-trial credit, the principle of
    totality and the fitness of the ultimate sentence relieves against any
    unfairness that might have resulted from considering each factor in isolation.

Disposition

[28]

On the basis of this analysis, I would grant leave to appeal sentence
    but dismiss the appeal.

RELEASED:

GE                                         Gloria
    Epstein J.A.

MAR -6 2013                          I agree Alexandra
    Hoy J.A.

I agree P.
    Lauwers J.A.


