• Lionel Hutz (law student)

Sentencing Appeals and Judicial Stays of Added Time: What do they say about our current sentencing r

There have been a few recent decisions of the Manitoba Court of Appeal that touch on the topic of when it is appropriate to stay added jail time when there has been a successful Crown appeal regarding a sentence. The first of these cases I will discuss is R v McMillan,1 a case where an offender, aged 19 at the time of the offence, was convicted of intentionally discharging a firearm into a house while being reckless as to whether someone was inside. This incident was seen by the court as a response from the accused because of bullying he had been subjected to. The sentencing judge imposed a 1 year term of imprisonment along with a finding that the 4 year minimum sentence that was imposed by statute violated s. 12 of the Charter.2

The Crown appealed this sentence arguing it to be demonstrably unfit and was based on several errors made by the sentencing judge. The court of appeal largely agreed with the submissions of the appellants and subsequently substituted the 1 year sentence with a 4 year term of incarceration. The court then turned to the topic of whether re-incarceration is appropriate in the circumstances of the case. The court listed factors, laid out in R v Veysey3, that are to be considered when determining if re-incarceration is appropriate in the circumstances. The factors are:

  1. The seriousness of the offences for which the offender was convicted

  2. The elapsed time since the offender gained his/her freedom and the date the appellate court hears and decides the sentence appeal

  3. Whether any delay is attributable to one of the parties

  4. The impact of re-incarceration on the rehabilitation of the offender

The court proceeded through an analysis emphasizing that while the offence itself was very serious in nature this was offset by the other three factors, namely the fact that over a year and a half had elapsed since the accused had been released from serving his original sentence and since the incident the accused has completed a number of counselling program, has not re-offended in any way, has maintained employment and had taken positive steps towards rehabilitation. The court ultimately decided that sending the accused back to jail would have a negative impact on his rehabilitation and decided to stay the remainder of the sentence it was adding.

Subsequently the Manitoba Court of Appeal decided three more cases where it decided it was appropriate to not re-incarcerate an accused after the Crown successfully appealed a sentence. The first of these cases is R v Anderson4, where the accused plead guilty to one count of driving with excessive alcohol causing bodily harm and was originally sentenced to a 90-day intermittent sentence followed by 3 years of probation and a 2 year driving prohibition. The court ultimately allowed the Crown’s appeal and substituted the 90-day intermittent sentence with a 6-month sentence. When the court laid out the factors to be considered when deciding whether or not re-incarcerate the accused it listed the same factors that were discussed in McMillan5 while adding an additional factor to consider,

  1. What is the difference between the new sentence and the original sentence 6

In this case the Court of Appeal again found it appropriate to stay the additional 3 months of incarceration that it imposed partly to do the fact that re-incarceration would have a negative impact on the positive rehabilitative steps that the accused had taken and would also result in loss of income from his steady employment that allowed his family to move to Winnipeg where he had moved due to new employment.

In R v BS 7 the Court of Appeal dealt with a sentencing appeal of a six-month deferred custody and supervision order (DCSO) imposed under the Youth Criminal Justice Act8. The Crown sought a five-month custody and supervision order (CSO) to be substituted instead.

The appeal was allowed due in large part to the fact that the accused had plead guilty to a major sexual assault resulting in serious bodily harm, an offence where a DCSO is not an available sentence. The six-month DCSO was substituted with a five-month CSO. The resulting additional incarceration time was stayed by the court because it found that the young offender had been fully compliant with the conditions that had been imposed on him, as well as attending counselling regularly and also maintaining full time employment. Based on these findings the court determined the re-incarceration of the accused would not be in the interest of justice.

In R v Burnett9 the accused pleaded guilty to breaking and entering and stealing a firearm. He was originally sentenced to a term of imprisonment of 90 days to be served intermittently, followed by two years of probation. The Crown appealed seeking to substitute a sentence of two years less a day. The Court of Appeal held that the starting point for a sentence of this nature was 30 to 36 months depending on the type of firearm that had been stolen. They held that it was open to the discretion of the sentencing judge to go below this starting point when taking into account the circumstances particular to the accused in this case. However, they ultimately held that a sentence of 90 days was not open to this accused and it substituted a sentence of 18 months and added a fine of $5,200. The added jail time was permanently stayed based on the court finding that the accused had already finished his previous sentence, had taken rehabilitative steps showing his maturity since the incident and disassociation from negative peers and the fact that there has been no post sentence misconduct.

The cases discussed above are by no means an exhaustive list of examples where the court has discussed staying newly imposed sentences, but is merely a snapshot of the types of situations where this has occurred. It is usually discussed in any decision that is dealing with a sentencing appeal, that the sentencing judge is to be afforded a substantial amount of deference to their original sentencing decision. Appeal courts will only disturb the sentencing judge’s decision where it is deemed demonstrably unfit or there was an error with regards to appropriate consideration and characterization of aggravating or mitigating factors.10

I don’t presume to answer whether the accused in all of these cases were deserving of their added time or whether or not the stays of added jail time were appropriate. Rather I aim to use these cases as examples of how more lenient sentences are still capable of fulfilling many of the sentencing objectives set out in the Criminal Code. Denunciation and deterrence are the two overarching objectives that trump the other objectives, especially in circumstances where a more serious crime has been committed. In practice these seem to validly be the most important objectives when sentencing offenders, after all who wants to have a justice system that is seen to be weak on crime. While the repute of the justice system is an important thing to take into account, considerations must also be made for how effective the current regimes are in deterring crime, after all Manitoba’s crime rate is amongst the worst in Canada and has been rising in recent years.

All the cases above are examples of situations where an accused received less jail time than they normally would, but still managed to rehabilitate themselves after serving their sentence. The question that I think needs to be asked is why were the offenders in those situations sentenced to time they weren’t going to serve, and I think the answer that seems most apparent to me is the court allowed the appeals in order preserve precedent that they want going forward. It seems as though, regardless of the more lenient sentences that were imposed in these cases deterring the offender’s and giving them opportunities to rehabilitate, and in some cases allowing them to keep their jobs; the court isn’t prepared to accept that in some circumstances a more lenient sentence than is normally opposed can achieve the objectives of sentencing. Admittedly, these cases involved serious crimes and the offenders who committed these acts need to be punished, and punishment is the main reason we sentence offenders to serve time in prison. However, if less time in jail can achieve the same objectives, shouldn’t the justice system strive to keep people incarcerated for the shortest amount of time as possible? In my opinion, it is entirely possible that, if the accused in the above cases had been originally sentenced in the manner that the Court of Appeal thought they should have been, they would not have been as successful in their rehabilitation as they had been. Clearly, this is speculation but I think it is not overly controversial to say that lengthy prison sentences can have profoundly negative impacts on an offender’s ability to reintegrate into society and rehabilitate themselves.

Obviously, sentences that are below the normal low ends that are found in the jurisprudence will not be appropriate for all offenders, but I would argue that the sentencing judges who are on the front lines dealing with these offenders on a daily basis are best situated to determine when it will be appropriate for a more lenient sentence. It seemed to work in the small sample discussed above, but it seems the Court of Appeal is set on keeping the sentencing ranges where they are for now.

Endnotes

1) R v McMillan 2016 MBCA 12 at para 83

2) Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, c. 11

3) R v Veysey 2006 NBCA 55 at para 32

4) R v Anderson 2017 MBCA 31

5) Supra note 1 at para 38

6) Supra note 4 at para 34

7) R v BS 2017 MBCA 103

8) Youth Criminal Justice Act, S.C. 2002, c. 1

9) R v Burnett 2017 MBCA 122

10) R v Park 2016 MBCA 107 at paras 5-6