



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Bourdon, 2012
    ONCA 256

DATE: 20120423

DOCKET: C53975

MacPherson, Armstrong and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rene Bourdon

Appellant

Julie Santarossa, for the appellant

Nadia Thomas, for the respondent

Heard: March 2, 2012

On appeal from the sentence imposed on March 1, 2011 by
    Justice James R.H. Turnbull of the Superior Court of Justice.

Juriansz J.A.:

[1]

In June 2004, the appellant was designated as a Long Term Offender (LTO)
    and sentenced to a Long Term Supervision Order (LTSO). The order was, at the
    time of sentencing, anticipated to continue to April 28, 2013. He appeals his
    sentence, relying on an error made by the sentencing judge in calculating his
    credit for pre-sentence custody. As he was released from imprisonment on
    September 26, 2011 on statutory release, he seeks to reduce the duration of the
    LTSO.

[2]

On August 23, 2010, the appellant was convicted of two counts of
    breaching his LTSO. On March 1, 2011 he was sentenced to two years imprisonment
    for the first breach and to one year in custody for the second breach to be
    served consecutively. The sentencing judge stated he would be given credit of
    1.5 days for each day in pre-trial custody and calculated that credit to be 781
    days premised on the 521 day period between the date of his arrest, April 28,
    2009 and October 21, 2010. The selection of October 21, 2010 is not explained.
    The appellant was convicted on August 23, 2010 and sentenced on March 1, 2011.
    In his reasons, the sentencing judge stated that the appellant was found guilty
    on October 1, 2010, but the indictment reflects that a new pre-sentence report
    was ordered on that date. The appellant did not appear in court on October 21,
    2010.

[3]

The parties agree that the sentencing judge intended to give the
    appellant 1.5 to 1 credit for his pre-sentence custody. His pre-sentence
    custody amounts to 673 days, beginning with his arrest on April 28, 2009 and
    ending on March 1, 2011 when he was sentenced. The proper credit calculated at
    the rate of 1.5 to 1 would amount to a credit of 1009 days. Thus, the
    sentencing judge granted the appellant 228 days (about 7½ months) less credit
    than he might have otherwise received.

[4]

Relying on this error the appellant, who is now out of custody, seeks to
    have the credit the judge intended to give him applied to reduce the length of
    the LTSO that he is currently serving. If his sentence is reduced, the
    appellants LTSO, which was suspended while he served his sentence, would
    recommence earlier and expire earlier.

[5]

I would grant leave to appeal his sentence, but dismiss the appeal.
    Notwithstanding the sentencing judges error, I would not disturb the sentence
    he imposed. The sentence actually imposed was fit.

[6]

The appellant was convicted on December 1, 2003 of two counts of sexual
    assault on victims he had rendered unconscious with a stupefying drug, one
    count of administering a stupefying drug with intent to commit sexual assault,
    and one count of unlawful possession of property.  The offences occurred between
    1999 and 2003 in North Bay and involved three different victims. He drugged the
    three victims with drinks referred to as paralyzers. He had sexual
    intercourse with the first and second victims after drugging them.  The second
    victim was the wife of a friend. He drugged her while she was at work.  The
    third victim was his downstairs neighbour. She had no clear memory of the
    events until admitted to hospital. He had drilled holes in her apartment so he
    could observe her in her bedroom. For these offences, the appellant was
    sentenced to 5 years incarceration less pre-trial custody at a 2 for 1 ratio
    and made subject to a Long-Term Supervision Order for a period of 7 years
    following his release.

[7]

The Long-Term Supervision Order began to run on November 9, 2005 when
    the appellant was released to a community care centre, and was initially anticipated
    to end 7 years later on November 8, 2012. However, as the sentencing judge
    noted, he immediately embarked on a course of infractions.

[8]

On December 1, 2005 a suspension warrant was issued and executed when he
    was found to be accessing pornography and escort service websites as well as
    chat rooms. The National Parole Board of Canada issued a reprimand on January
    27, 2006 and returned him to the community care centre on January 30, 2006.

[9]

Less than two months later, on March 20, 2006, a second suspension
    warrant was issued and executed when the appellant was alleged to have had
    contact with another residents girlfriend. He was returned to the community
    care centre on April 19, 2006.

[10]

On
    May 8, 2006 the third suspension warrant was issued and executed because the
    appellant was found to have violated the condition that he have no contact with
    females without prior authorization from his parole supervisor. He was again
    released to community care on August 15, 2006.

[11]

The
    fourth suspension warrant was issued and executed on September 26, 2006 when he
    failed to provide detailed billing for his cell phone charges. As well he had
    failed to disclose to his parole supervisor that he had been on a trip to North
    Bay in the presence of a 17-year-old female and had rented a hotel room for
    her. He was charged with breaching his long-term supervision order on November
    23, 2007.

[12]

He
    was sentenced for that breach on July 2, 2008. He received a sentence of four years
    incarceration less credit for 644 days of pretrial custody at a ratio of 2 to
    1.

[13]

He
    was released on statutory release on October 23, 2008 and reached his warrant
    expiry on December 20, 2008, when his long-term supervision order recommenced
    with a condition that he reside at a community care centre.

[14]

Shortly
    after, on February 2, 2009, a fifth suspension warrant was issued and executed
    when the appellant was found in possession of a computer capable of accessing
    the Internet and a CD containing pornographic images of young women. On April
    28, 2009 he was charged with the two counts of breaching his LTSO in this case.

[15]

In
    his reasons, the sentencing judge noted that the appellant had never completed
    any of the treatment programs he had started and that the risk he posed to the
    public remained high. He did not take supervision seriously and blamed others
    continuously for his circumstances and did not accept responsibility for his
    actions.

[16]

The
    appellants effective sentence on these two counts was 10 1/2 months
    incarceration, given the 781 days of credit he received. As noted he was
    released 6 1/2 months later on September 26, 2011. His LTSO, which was
    suspended during his sentence, recommenced at his warrant expiry on January 12,
    2012. If his appeal is successful it would end some 7 1/2 months earlier than
    it is currently set to expire.

[17]

I
    agree with the Crowns submission that it should be kept in mind that the time
    a long-term offender spends in presentence custody cannot be regarded as dead
    time, as the LTSO continues to run until conviction. As Justice Masse put it
    in R. v. Nelson, [2007] O.J. No. W5704 (OCJ) at para 30-31:

[A]lthough the long-term supervision order is interrupted
    while an offender serves a sentence, it continues to run until such time as
    sentence is actually pronounced. It would be an anomalous result for an
    offender to receive both a credit towards his long-term supervision order for
    pre-sentence custody as well as an enhanced credit towards sentence. That could
    not have been the intention of Parliament.

[18]

The
    issue has been considered by this court in one previous case,
R. v. Ipeelee,
[2009] O.J. No. 5402 (appeal allowed on other grounds, [2002] S.C.J. No. 13.)
    where the court said this at para. 10:

Did the sentencing judge err by refusing enhanced credit?

The sentencing judge refused to give the appellant enhanced
    credit for the six months he spent in pre-sentence custody. In the circumstance
    of this case, I see no error. As the sentencing judge noted, the time under the
    long-term supervision order continues to run while the offender is in
    pre-sentence custody for breach of a condition of the order. Moreover, the lack
    of credit for time served towards early release, a factor usually cited as a
    reason for enhanced credit, is less relevant here as the appellant is unlikely
    to be granted early release.

[19]

One
    goal of an LTSO to rehabilitate offenders and reintegrate them into the
    community by supervising them after they are released from imprisonment.  If
    the offender is in custody awaiting trial on charges of breaching the LTSO,
    nothing can be accomplished towards reintegrating the offender into the
    community. Some rehabilitation is possible because long term offenders, unlike
    other accused persons, can be transferred to a federal penitentiary with
    treatment programmes available while awaiting sentence (s. 135(2)
Corrections
    and Conditional Release Act
s.c. 1992, c. 20 as amended). The lack of
    access to such programs is considered a rationale for enhanced credit for time
    in pre-trial custody. In this case, it is not clear why the appellant was not
    transferred to a federal penitentiary.

[20]

Here,
    the appellant has spent a total of 1337 days (664 days on his first breach and
    673 days on the breaches in this case) in custody while his LTSO continued to
    run. That period amounts to more than one half of the original 7 year period
    the LTSO was intended to apply.

[21]

I
    recognize that the awarding of credit for pre-sentence custody is a matter
    within the discretion of the sentencing judge. Here, despite the sentencing
    judges factual mistake in granting the appellant less credit for pre-sentence
    custody than it seems he intended to, I would not disturb the sentence actually
    imposed. The sentence actually imposed was fit for the offences considering the
    circumstances of the appellant, and the rationale for a LTSO for a period of 7
    years is not undermined by the sentencing judges calculation error. The
    considerations I have discussed point towards less credit for pre-trial custody
    while a LTSO is in effect than in other cases.

[22]

I
    would grant leave to appeal sentence but dismiss the appeal.

R.G. Juriansz J.A.

I agree J.C.
    MacPherson J.A.

I agree R.P.
    Armstrong J.A.

Released: April 23, 2012


