



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gregoire, 2018 ONCA 880

DATE: 20181102

DOCKET: C62920

MacPherson, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bobby William Kenneth Gregoire

Appellant

Breana Vandebeek, for the appellant

Jill Cameron, for the respondent

Heard: October 29, 2018

On appeal from the sentence imposed on November 10, 2015
    by Justice J. Elliott Allen of the Ontario Court of Justice.

Paciocco J.A.:

[1]

Bobby Gregoire was convicted of manslaughter after pleading guilty in
    the death of his 53-day-old son, Chase. He was sentenced to five years and ten
    months of incarceration, after being credited with two years and two months of
    pre-sentence custody, based on credit of 1.5 days for each day of pre-sentence
    custody actually served.

[2]

Mr. Gregoire seeks leave to appeal his sentence. He contends that the
    sentencing judge made four distinct errors: (1) unfairly minimizing the
    mitigating effect of the guilty plea; (2) relying on Mr. Gregoires failure to
    advise medical personnel that Chase suffered a head injury; (3) finding,
    contrary to the agreed statement of facts, that Mr. Gregoire shook Chase so
    hard that he died; and (4) concluding that sentencing judges do not have
    authority to provide credit in excess of a 1.5:1 ratio for pre-sentence credit
    for harsh pre-sentence detention conditions.

The Mitigating Effect of the Guilty Plea

[3]

In my view, the sentencing judge did not unfairly minimize the mitigating
    effect of the guilty plea. He recognized expressly the mitigating effect of a
    guilty plea, and exercised his discretion in quantifying its impact. The Crown
    initially sought an eight to ten year sentence. The sentencing judge concluded
    that the Crowns subsequent decision to recommend the lower end of that range adequately
    reflected the guilty plea.

[4]

I would not interfere with that discretionary determination. The
    exercise of that discretion was not unreasonable and no errors of principle
    occurred in quantifying the impact of the guilty plea.

[5]

Specifically, the sentencing judge was entitled to consider that while
    the plea was early relative to the laying of the charge, it was a late
    demonstration of remorse, occurring nearly three years after the event.

[6]

The sentencing judge was also entitled to take into account that
    initially Mr. Gregoire misled medical personnel about the cause of Chases
    distress by claiming the child had been choking on food, when he knew that Chase
    had suffered a head injury. This conduct helped contextualize the remorse that
    the guilty plea represented, and gave context to what a mitigated, fit sentence
    would look like.

Reliance on the Failure to Explain the Head Injury

[7]

I do not agree that the sentencing judge unduly relied on Mr. Gregoires
    failure to explain that Chase suffered a head injury. The sentencing judge was
    required to determine the gravity of the offence, and the degree of Mr.
    Gregoires responsibility. Mr. Gregoires breach of trust in preferring his own
    interests to those of Chase when Chase was in medical need is relevant to both
    considerations, even in the absence of evidence that this conduct contributed
    to Chases death.

[8]

Nor does the sentencing judges reasoning disrespect the right to
    silence in the circumstances of this case. Mr. Gregoire did not remain silent.
    He misled medical personnel.

Misapprehending the Assault

[9]

In my view, the sentencing judge did not find, contrary to the agreed
    statement of facts, that Mr. Gregoire shook Chase so hard that he died. The sentencing
    judges observation that the sentence must express the revulsion that society
    feels when a parent  loses their temper and shakes a distraught baby so hard
    they die does not contradict the agreement that moderate force would be sufficient
    to cause Chases injuries. The sentencing judge was not saying that hard force
    was used. He was simply saying that the force used was hard enough to cause
    death, which manifestly it was.

The Harsh Detention Conditions

[10]

At
    the time of sentencing, Mr. Gregoire asked for pre-sentence credit beyond 1.5:1
    because of the harsh conditions in which he was held. The sentencing judge
    declined, expressing the view that he did not have the authority to give credit
    beyond 1.5:1. Subsequent to Mr. Gregoires sentencing, this court recognized in
R. v. Duncan
, 2016 ONCA 754, that sentencing judges in fact have the
    authority to give extra credit beyond 1.5:1 for pre-sentence custody served in
    harsh conditions.

[11]

I
    have considered whether we should reduce Mr. Gregoires sentence because of the
    number of days he spent in lockdown, and in overcrowded cells. On the record
    before us, I would not do so. In all of the circumstances, the eight year
    global sentence that has been imposed is fit.

[12]

Leave
    to appeal is therefore granted, but the sentencing appeal is dismissed. No
    errors occurred affecting the sentence imposed, and that sentence was not
    manifestly unfit.

David
    M. Paciocco J.A.

I
    agree. J.C. MacPherson J.A.




Miller J.A. (Concurring
)

[13]

I agree with my colleagues reasons, but write
    briefly to highlight an issue that may warrant attention in a future appeal.

[14]

The
    parties rely on
R. v. Duncan
for the proposition that sentencing
    judges, where circumstances warrant, have authority to give sentencing credit
    in addition to the 1.5:1 credit established by s. 719 (3.1) of the
Criminal
    Code
. They disagree, however, as to what those circumstances are.

[15]

It
    seems to me that further guidance is needed from this court as to what
    circumstances may justify enhanced credit. This may also require an explanation
    of the doctrinal foundation for the practice of granting enhanced credit
    outside of s. 719(3.1), with specific reference to the interpretation of s.
    719(3.1) provided by the Supreme Court of Canada
in
R. v. Summers
, [2014] 1 S.C.R. 575 and other
    judgments. Given the absence of submissions on these issues, it would not be
    appropriate to address them in the present appeal.

Released: November 2, 2018 (J.C.M.)

B.W. Miller
    J.A.


