R. v. Langille

2013 BCCA 274 R. v. Langille

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Langille, 2013 BCCA 274 Date: 20130611 Docket: CA040622 Between: Regina Respondent And Ronald Dean Phillip Langille Appellant Before: The Honourable Chief Justice Finch The Honourable Mr. Justice Chiasson The Honourable Mr. Justice Harris On appeal from: A decision from the Provincial Court of British Columbia, dated November 8, 2012, (R. v. Langille, Victoria Registry 146593) Counsel for the Appellant: D.J. Mckay Counsel for the Respondent: J.R.W. Caldwell Place and Date of Hearing: Vancouver, British Columbia May 10, 2013 Submissions of Respondent: May 17 and 22, 2013 Submissions of Appellant: May 27, 2013 Place and Date of Judgment: Vancouver, British Columbia June 11, 2013 Written Reasons by: The Honourable Mr. Justice Harris Concurred in by: The Honourable Chief Justice Finch The Honourable Mr. Justice Chiasson Reasons for Judgment of the Honourable Mr. Justice Harris: [1] The appellant applies for an extension of time to apply for leave to appeal, leave to appeal and, if leave is granted, appeals from custodial sentences totalling 16 months, for five offences as follows: 12 months for the assault causing bodily harm; 1 month consecutive for the breach of bail in September of 2009; 1 month consecutive for the failure to appear in November of 2009; 2 months consecutive for the two bail breaches in June of 2012. [2] These

sentences were made consecutive to what the sentencing judge was advised was 79 days remaining on a Conditional Sentence Order ("CSO") which the appellant was also ordered to serve in custody. The total effective sentence was 18 months 19 days. It will be necessary to return to the question whether the appellant had time left to serve on his CSO later in these reasons. [3] The sentencing judge gave brief reasons for sentence immediately at the end of submissions in which she said: I truly do hope you get the help you need. It will be in jail that you get it, but if you keep going the way you are, you are going to seriously hurt or perhaps kill somebody and then you will be in jail for the rest of your life. The Crown's position is eminently reasonable and I am adopting it ... [4] The appellant contends the sentencing judge erred by failing: to give more than one-to-one credit for his time in custody prior to sentencing; properly to consider the principles of sentencing; to give adequate reasons for her decision; and by imposing an excessively harsh sentence for the assault causing bodily harm offence; consecutive rather than concurrent sentences for the bail breach and the failure to appear offences committed in 2009, and for the two other bail breach offences committed in 2012. The appellant also seeks a reduction in length of his probation order. [5] At the outset, it became

clear during oral submissions that the appellant's principal complaint about the sentencing hearing was that the judge did not appear clearly to appreciate who she was sentencing or to deal with the particular submissions that were made on his behalf that tried to explain the mitigating circumstances that underlay both the primary offence for which he was being sentenced and his conduct in fleeing the jurisdiction after pleading guilty to that offence in September 2009. The former concern arose because the judge said she was familiar with the accused, having sentenced him for a particular earlier offence, when in fact she had not been the sentencing judge. Circumstances of the offences [6] In the evening of April 23, 2009, the appellant, then 35 years old, assaulted his mother while she was driving him home from hospital. The Crown's summary asserted that he was angry with her, punching her in the head, pulling her hair, and hitting her on the head with a pot. His mother had a number of visible injuries: bruising above and below her right eye socket, lumps on her skull, and torn skin on her left forearm. The appellant also threatened to hurt her with a rock that was inside the car, but did not use it. [7] The appellant was angry because earlier that day his mother, who was concerned by his erratic behaviour and potentially suicidal comments, had called 9-1-1 resulting in his

hospitalization. Later that day he was released into his mother's care. Moments before the assault she angered her son further by telling him she had poured the rest of his alcohol down the drain while he was in the hospital. [8] During the sentencing proceedings, the appellant, with support from his mother, stressed a somewhat different version of the offence, suggesting that his mother was not the target of his violent outburst, but rather that he was taking his anger out against the car and his mother was incidentally injured. [9] The Crown called the appellant's mother as a witness, along with other witnesses, on the first day of trial. During her testimony, he screamed at her. At the start of the second day of trial, the appellant changed his plea to guilty to the offence of assault causing bodily harm. Sentencing was adjourned to September 18, 2009. [10] On that date, the appellant was sentenced on other unrelated matters by the same judge who pronounced sentence in this case. Sentencing on the assault causing bodily harm was adjourned to November 30, 2009. The appellant was granted bail. A condition of bail was that the appellant reside at a treatment centre, as he had requested. This requirement was also part of a CSO for a previous offence of assault causing bodily harm from 2008. [11] One week after his release on bail, the appellant left the treatment centre,

remaining at large, principally in Ontario, for about 2 1/2 years. He failed to attend court on November 30, 2009, to be sentenced for the assault causing bodily harm offence. He remained at large until he was arrested on June 12, 2012, at his mother's home in Victoria. On his arrest, the appellant was intoxicated. He was in breach of his bail conditions not to attend his mother's residence and to abstain from alcohol. The sentencing hearing [12] The sentencing judge was provided with information about the circumstances of the offence, the personal circumstances of the appellant (including his criminal record) and reports outlining his prospects for rehabilitation and the risks of violent re-offending. [13] A pre-sentence report ("PSR") and a psychological report had been prepared before the original intended sentencing date of September 18, 2009. The reports were both largely negative about the appellant's insight into the offence, his prospects for rehabilitation and his willingness to take responsibility for his conduct. They recounted in detail the appellant's troubled personal background and the difficulties he faced with substance abuse and addictions both to street drugs and prescription medications. He was described as an "emotionally labile, immature and impulsive individual" in one of the reports. The PSR noted the appellant's letter of apology to his mother blamed

her in part, and that the appellant "called her both a liar and a bitch in this note of apology." The PSR also recounted the appellant's past difficulties with court orders: Past performance on community supervision has seen marginal compliance. More recently Ronald has incurred numerous Conditional Sentence breaches and he was subject to a CSO when these offences occurred. [14] The psychological report included a risk assessment that the appellant had a "HIGH risk for future violence." The report also said: Mr. Langille has little awareness of how his actions/behaviour impacts other people and seems to have little desire of developing a better idea of others' point of view. He is unwilling to accept responsibility for his behaviour and is focused on blaming others, particularly his mother and brother. [15] The appellant has a lengthy criminal record of about 58 previous convictions. He had two prior weapons convictions, as well as prior offences for violence, including an assault, three robbery convictions, two convictions for assaulting a police officer, one for assault while resisting arrest, and a prior conviction for assault causing bodily harm leading to a 20-month CSO. This was the sentence the appellant was serving when he assaulted his mother. The record also included six prior convictions for breach of bail, one conviction for being unlawfully at large, and twice

breaching a CSO. The sentencing judge was informed that the appellant committed two offences while at large in Winnipeg; a breach of bail by possessing alcohol and possession of a weapon for a dangerous purpose. [16] At the sentencing, the appellant's counsel conceded the Crown's position on sentence was "not unreasonable", but asked that the sentencing judge "severely temper the jail sentence" sought by the Crown. Counsel did not suggest an alternative range of sentence. No specific submission was made about eligibility for greater than one-to-one credit, but counsel did ask the sentencing judge to consider the crowded conditions which the appellant had experienced while in custody awaiting sentencing. [17] Appellant's counsel focused his submissions on the following. He argued that the circumstances of the offence against his mother were not as extreme as characterized by the Crown. The appellant was angry, frustrated, and not in his right mind. In effect he was psychotic, having been released from hospital in a deeply troubled state. His mother was not the intended victim of an impulsive rage that incidentally caused her injury. In substance, the appellant argued that there were mitigating circumstances at play in his conduct that day. He needed treatment, not jail. [18] Secondly, counsel attempted to explain why the appellant left the treatment centre in 2009 and then fled

the jurisdiction. He explained that conditions there were so bad, with bed bugs and vermin, that the appellant left impulsively. He explained that the appellant had made an effort to find somewhere else to go for treatment, but when he realized there was a warrant out for his arrest he fled. [19] Finally, he emphasized that the appellant had returned to British Columbia to deal with the outstanding charges and had the continuing support of his mother in his effort to get a grip with his life. The appellant also spoke directly to the Court. He told the judge that he had avoided street drugs for some years, thereby removing the incentive to commit crimes to support his habit, but asked for continuing help in jail, if he were to serve time. The appellant also stressed his love for his mother and his commitment not to hurt her. [20] During the course of the sentencing hearing, the judge asked a number of questions, engaged in discussion with counsel, and made some statements about the case. She said she was familiar with Mr. Langille because she had sentenced him on a prior offence. This was a mistake; another judge had sentenced him on that offence. The judge had, however, dealt with a breach of the CSO that had been imposed for that offence. The judge also asserted that the appellant had been given a chance in 2009 when he was sent to a treatment centre pending sentencing, but

had "blown it", presumably by absconding. The judge expressed her concern that the appellant would someday really injure his mother, expressed doubt about the usefulness of a probation order, and asked a number of questions about the availability of substance abuse treatment and mental health counselling in various institutions. In response to appellant counsel's concession that the Crown's position on sentencing was not unreasonable, the judge agreed. [21] Immediately at the conclusion of submissions, the Court imposed the sentence under appeal in the brief reasons which I will set out again: I truly do hope you get the help you need. It will be in jail that you get it, but if you keep going the way you are, you are going to seriously hurt or perhaps kill somebody and then you will be in jail for the rest of your life. The Crown's position is eminently reasonable and I am adopting it ... On appeal [22] Given the emphasis the appellant placed on whether the reasons for sentence were adequate, I will address this argument first. Underlying the appellant's argument is his concern that he was not dealt with fairly because the judge was mistaken about being familiar with him and did not address the arguments that were advanced on his behalf. [23] It is evident that the reasons themselves are exceptionally brief. Their adequacy must be assessed by examining the record as a whole

including the evidence, the submissions of counsel, and the history of the proceedings in order to identify the "live" issues and to decide whether they fulfil the functions of reasons. As is well known, there are three main functions of reasons: to explain the result to the parties; to provide public accountability; and to permit effective appellate review. Provided those functions are satisfied and the basis of the result can be discerned, a "detailed description of the judge's process in arriving at the verdict is unnecessary." (see R. v. R.E.M., [2008] 3 S.C.R. 3 at para. 35.) [24] When the record is read as a whole, it is apparent that the judge was legitimately concerned about the risk the appellant posed to other people, most particularly his mother, and his poor prospects for rehabilitation. She expressed her view that the appellant had been offered an opportunity to rehabilitate in the community, but had failed to avail himself of it. It seems clear that she considered that, in those circumstances, a jail term was required. Nonetheless, she expressed her concern, both during submissions and in her reasons, that the appellant receive the treatment that he needed. [25] What the judge did not do is to explain why she simply adopted the Crown's position and rejected the appellant's submissions. She did not address the issues raised by the appellant in mitigation of his

conduct, including, most importantly, the relevance of the somewhat competing versions of the facts about and underlying the offence of assault causing bodily harm to his mother and the circumstances leading to his leaving the treatment centre and fleeing the jurisdiction. [26] In my view, the reasons failed to explain the result to the appellant. In reaching this conclusion, I am mindful of the amount of work faced by judges in the provincial courts. Nonetheless it would have been reasonably possible to have addressed the substance of the limited number of points raised by the appellant in mitigation and explanation of his conduct in two or three short paragraphs. At least then the appellant would have been able to understand why the judge chose to adopt the position of the Crown in preference to his own. Similarly, the judge ought, in these circumstances, to have explained why, after expressing scepticism that any probation order would be useful, she decided to impose an 18-month probation order after the Crown had requested only 12 months. The unfortunate, but I think erroneous, impression the proceedings left with the appellant was that his position was simply given no consideration. [27] None of this reflects on whether the sentence was, in any event, fit. Indeed, in my view, it was. Accepting at face value the appellant's account of the offences and his explanation of his

own conduct, the sentence, nonetheless, reflects the aggravated circumstances of the offence, the circumstances of the accused, his criminal record, his need for support in rehabilitation, the protection of the public, and specific and general deterrence. The sentence was in my view proportionate to the moral culpability of the appellant, when that culpability is viewed in the light most favourable to him. [28] I consider that it would have been open to the sentencing judge to have imposed a longer sentence for the assault causing bodily harm and the failure to appear for sentencing. The fact that she did not do so may reflect the extent to which, in fact, she implicitly gave effect to some of the submissions advanced on behalf of the appellant. Moreover, no error has been shown in the imposition of an 18-month probation order which, among other matters, imposed conditions clearly intended to protect the appellant's mother from the possibility of further violence at his hands. [29] I am not persuaded that the judge erred in imposing consecutive sentences. The appellant was sentenced on a series of distinct offences which occurred at different times. It was clearly within the sentencing judge's discretion to impose consecutive sentences as she did. [30] I turn now to consider the question of credit for time in custody. It is evident that it was simply assumed that the appellant

was being sentenced under the current regime introduced in the Truth in Sentencing Act, S.C. 2009 (which came into force on February 22, 2010). It is common ground that he was entitled to the benefit of the law relating to credit as it stood at the time of the offences which had, for practical purposes, occurred before the recent legislative amendments. On the face of it, the appellant was entitled to credit of two-to-one for time in custody, unless there were good reasons to depart from that principle. [31] The Crown argues that in the circumstances of this case one-for-one credit was justified. Its principal argument is based on the fact that the appellant fled the jurisdiction. The Crown relies on R. v. Preddy, 2011 BCCA 324, a case in which the accused was being sentenced for a prison break while awaiting trial. Mr. Justice Frankel held at para. 29 that giving credit for any time served prior to the escape and subsequent to recapture was problematic, as, "it would send a signal to persons who are detained awaiting trial that they have nothing to lose by trying to escape...". [32] In my view, the circumstances arising in Preddy were somewhat different from those in this case. There the offender was being sentenced for the prison break and not for the offences that had led him to be detained in the remand centre in the first place. The case did not deal with the offender's

eligibility for credit on the underlying offences, which would have been dealt with when he was sentenced on those offences. Here, although the appellant was being sentenced for breach of bail and failing to appear at his sentencing (both of which related to his fleeing the jurisdiction), the principal offence for which he was sentenced was the assault causing bodily harm. The sentence on that offence accounts for the great majority of the total sentence. [33] The question is whether the appellant should be credited two-for-one for time in pre-sentence custody or some lesser amount. As stated by Madam Justice Levine in R. v. Mayers, 2011 BCCA 365, the general approach was to award a two-for-one credit for pre-sentence custody unless the circumstances warranted a reduction or an increase. This approach reflected the two justifications for granting greater than one-to-one credit identified by Mr. Justice Hall in R. v. Orr, 2008 BCCA 76, namely, that time spent in pre-trial custody does not count towards statutory remission or parole eligibility, and that conditions in remand centres are harsher than in most institutions and lack, among other things, programs to support rehabilitation. [34] In my view, the circumstances do justify departing from the two-to-one principle. As Hall J.A. said in Orr at para. 20: A lesser credit, generally in a ratio amount of one and a half-to-one

seems more appropriate where the offender has been held for the pre-sentence period in an institution where post-sentence type programs are available. A refusal by a sentencing judge to allow any credit seems to me an erroneous approach having regard to the majority of existing authorities in Canadian appellate courts and the Supreme Court of Canada. [35] In this case, the appellant did have the benefit of, and completed, post-sentence type programmes in pre-trial custody. Although I am aware that the appellant served his pre-sentence custody in harsh conditions, I would credit him with one-and-a-half-to-one for the time in pre-sentence custody. I emphasize that my decision has no bearing on what credit the appellant might have been entitled to if he had been sentenced on the current legislative regime. [36] The Crown also argues that even if there is an error in principle in credit for pre-sentence custody, the Court should decline to remedy the error because the effective sentence is nonetheless fit. This argument was considered by this Court in R. v. Vedres, 2012 BCCA 232 (at paras. 16-24). In that case, the Crown conceded the sentencing judge erred in not giving two-for-one credit for time in pre-trial custody. The sentencing judge first determined a fit sentence and then deducted an erroneous amount of credit. The Court concluded that the specific error made in calculating

credit warranted appellate intervention to correct the specific error. In reaching that conclusion this Court relied on Orr and R. v. Aubin, 2009 BCCA 418, and distinguished other circumstances where intervention might not be called for if the effective sentence was fit, despite an error having be made: see para. 20. [37] In my opinion, it is appropriate in this case to follow the approach in Aubin and Vedres. The sentencing judge determined a fit sentence on the principal offence. The sentence may have been lenient, but it was not unfit. It is entitled to deference. The judge explicitly gave credit for time in custody and deducted it from the sentence. In doing so she made an error, in granting only one-for-one credit. The sentence should be varied to correct that particular error. [38] Finally, it is necessary to return to the question whether the appellant still had 79 days to serve on a 20-month CSO that had been imposed on March 28, 2008. At the beginning of the appeal, counsel for the appellant provided the Court with documents he had very recently been given that suggested that the appellant had served that sentence by the time he was sentenced on these charges. [39] Crown was unable to confirm that he accepted that position and agreed to check with Corrections Branch and advise the Court of the Crown's position when he had done so. [40] Crown then advised that he had an

opinion from Corrections Branch that confirmed the appellant had served his CSO which expired on June 25, 2012, but that he was unable to agree with that opinion based on a proper application of when time running on a CSO is suspended under the provisions of the Criminal Code. Rather, the Crown argued, the appellant actually had longer remaining than 79 days. Perhaps considerably longer depending on whether the appellant had received credit when he was sentenced on the CSO of four and a half months for time served, leaving an effective CSO of 15.5 months. [41] Having reviewed the materials provided I am satisfied that the appellant did not have time remaining on the CSO when he was sentenced. His CSO had expired on June 25, 2012. First, it is apparent from the reasons sentencing him to the 20-month CSO, that time served was taken into account and the effective sentence was 15.5 months. Second, the difference between Crown and the calculation made by Corrections Branch principally relates to whether the CSO was suspended or not during two periods when the appellant was in custody. Corrections Branch included those periods in its calculation. Crown submits that the CSO remained suspended because there was no formal detention order pronounced for his detention. The appellant remained in custody by consent. [42] In my view, the cases of R. v. Atkinson (2003), 174 C.C.C. (3d) 144

(Ont. C.A.), R. v. A.D.P., 2005 BCCA 625 and R. v. English, 2012 NLCA 64, support the proposition that when the appellant was detained on new charges that were also breaches of the CSO, the CSO was not suspended even though he was detained by consent. According to the holdings in both A.D.P. and English, however, credit for pre-trial custody cannot be given when the CSO is running. Therefore the one-and-one-half-for-one credit for pre-trial custody cannot commence until June 25, 2012, when the CSO had expired. Disposition [43] I would grant the appellant's application for an extension of time to file his application for leave to appeal from sentence, grant leave to appeal, and allow the appeal to the extent of granting the appellant credit on a ratio of one-and-a-half-to-one for the time spent in pre-sentence custody starting on June 25, 2012, when the CSO had expired. I would also set aside that part of the sentence that made the sentences consecutive to the 79 days the judge assumed remained on the CSO. The amount of credit the appellant is entitled to will have to be recalculated to take into account that his CSO expired on June 25, 2012. "The Honourable Mr. Justice Harris" I agree: "The Honourable Chief Justice Finch" I agree: "The Honourable Mr. Justice Chiasson"