Supreme Court

SUPREME COURT OF Nova Scotia

Citation: R. v. West, 2021 NSSC 113

Date: 20210330

Docket: Halifax,  No.  503848

Registry: Halifax

Between:

Her Majesty the Queen

 

v.

 

Nirica Mariah Marie West

 

 

Judge:	The Honourable Justice Peter P. Rosinski
Heard:	March 22, 2021, in Halifax, Nova Scotia
Counsel:	Lisandra N. Hernandez, for the Crown Jonathan Hughes, for the Defendant

 

By the Court:

Introduction

[1]             Ms. West pled guilty to over 40 separate charges arising from 19 separate Informations.

[2]              All were summary conviction offences for appeal purposes per s. 822 Criminal Code [“CC”].[1]

[3]              Thus, this court has jurisdiction to hear the Crown’s appeal from the sentence imposed in Provincial Court on January 6, 2021: 565 day Conditional Sentence Order [”CSO”] ordering 180 days house arrest, and to be followed by 30 months probation.

The trial judge’s decision

[4]             Before the trial judge, the Crown and Defence agreed that 865 (less a 300-day pre-sentence credit) days was a reasonable total sentence. The Crown and Defence differed only in one material respect – the Crown argued for 565 days imprisonment whereas the Defence argued for the 565 days to be served in the community pursuant to a CSO.

[5]              The trial judge stated:

“The amount of time that’s being recommended on these charges… based on Ms. West’s prior record, and on any one of these charges the recommendation of time could be much greater than what it is… The total length of time that’s being recommended here, when looked at by totality, with Ms. West’s entering a guilty plea, the explanation that this was largely induced by intoxication [crack cocaine addiction], I’m satisfied that the total sentence is appropriate. The question is, of course, now whether or not, having regard to that length of time, where it’s less than two years, that Ms. West could serve that safely in the community… That is a total sentence of 865 days, less 300 days of pretrial custody credit, for 565 days going forward. I am satisfied that that can be served in the community under the following conditions and is otherwise consistent with the fundamental purpose and principles of sentencing and it will not endanger the safety of the community.”  (pp. 4 and 10 transcribed decision)

[My bolding added]

[6]             No one at the sentencing raised a concern that the trial judge could not impose a CSO in the circumstances. I conclude that he erred in imposing a CSO.

The position of the Crown and Defence

[7]             The Crown now appeals asserting that the CSO was illegal as a result of the reasons in R v Fice, 2005 SCC 32 (and R v Benoit, 2007 NSCA 123).[2]

[8]              It says the trial judge erred in law, and such error undermines his entire reasoning process, which affords this court the opportunity to sentence Ms. West afresh - it requests that I impose a sentence of 565 days imprisonment with credit on a 1:1 basis for her time served on the CSO to the date of this decision - R v Dawson, 2021 NSCA 29 at paras. 25 and 111. It supports its argument by pointing out that a CSO is not available, and even if it were, a CSO plus probation would not be in accordance with the principles of sentencing otherwise, including that it would not be a sufficiently deterrent or denunciatory sentence, given Ms. West’s previous criminal history, the length of time over which she committed these offences, the frequency of her offending, and her blatant disregard or inability to comport herself in accordance with court orders and release conditions-which do not support a significantly rehabilitative – focused sentence.

[9]             As I understood the full import of her argument, Ms. West argues that the trial judge committed no error in principle – that is, since judges are presumed to know the law, either in his implicit interpretation of R v Fice and his application thereof to the circumstances of Ms. West’s case, or if he did not turn his mind to the reasons in Fice, it had no effect on the validity of the sentence outcome.

[10]         She says that  I should view each of  the 19 Informations as constituting a separate proceeding, therefore leading to a separate “sentence” from all the rest, such that each individual Information would necessarily involve a sentence of less than two years, notionally permitting 19 separate CSOs (plus probation) – effectively rendering legal the global sentence that the trial judge imposed.[3]

[11]         She notes that had she dealt with these matters individually, rather collectively as a consolidation of her outstanding charges, a trial judge would not have been prevented from imposing CSOs on each of the Informations- her present predicament will therefore discourage others from efficiently consolidating their outstanding charges by pleading guilty to all at one time. With all due respect, Ms. West’s predicament arises because neither counsel nor the court identified as an issue the effect of the Supreme Court of Canada’s reasons in Fice.

[12]         She argues that I should either remit the matter to the trial judge for sentencing (I note that I am statutorily prevented from doing so - see sections 822 and 687 of the Criminal Code); or alternatively, that even if I find the trial judge erred, in re-sentencing her, I should order some of her sentences be considered “time served” (instead of a partial pre-sentence remand credit allocated among all the individual counts to which she pled guilty) in the amount of 300 days for the earliest dates of offences she committed, such that the remaining 565 days, which  would allow for a CSO to be imposed by me - she cites Justice Wood’s (as he then was) reasons in R v Perry, 2018 NSSC 16.

Why the CSO was illegal

[13]         Regrettably, the Fice case was not brought to the trial judge’s attention by counsel. His reasons strongly suggest that he did not recognize its applicability to the circumstances of Ms. West.

[14]         Because Ms. West relied upon s. 139 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("CCRA"), I start by observing that in considering when probation orders may be made consecutive to terms of imprisonment per s. 731(1)(b) CC – whether pre-sentence remand credit is properly deducted before a court considers if the length of the sentence is “not exceeding two years” (“sentencing the offender to imprisonment for a term not exceeding two years” which bears some similarity to the wording in s. 742.1 CC “if… the court imposes a sentence of imprisonment of less than two years, the court may… order that the offender serve the sentence in the community…”) Justice Fish for the court in R v Knott, 2012 SCC 42 stated:

28      For the most part, these decisions relied implicitly, if not explicitly, on the sentence merger provisions in s. 139 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("CCRA") and its predecessors. This is no longer possible in light of Middleton, where the majority held that s. 139 was enacted for administrative purposes relating to parole and remission, and had no substantive impact on an offender's eligibility for an otherwise lawful sentence.

[My bolding added]

[15]         The court held that it is the remainder of the sentence after deduction of pre-sentence remand credit that should be looked to in assessing whether the sentence is “exceeding two years”. This conclusion was largely driven by the rehabilitative focus of probation orders.

[16]         In R v. Goeujon, 2006 BCCA 61 we find a succinct summary of the majority’s reasons in Fice:

41      The question in Fice was whether pre-sentence custody should affect a sentencing judge's determination of the availability of a conditional sentence. I have reproduced s. 719(3) earlier in these reasons. Section 742.1(a) of the Code provides:

742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

(a) imposes a sentence of less than two years, and

(b) ....

The court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditional sentence order made under section 742.3.

[Emphasis added]

42      Mr. Justice Bastarache, writing for the majority in Fice , held that s. 742.1 required a sentencing judge to make a preliminary determination of the appropriate range of available sentencing in determining whether to impose a conditional sentence. The court reasoned that the object of the requirement is to exclude categories of offenders from the conditional sentence regime on the basis of the range of sentence that would apply to them. Thus, it was fitting that the total punishment (pre and post-sentence custody) imposed would determine whether a conditional sentence was available to a particular offender.

43      In reaching this conclusion Mr. Justice Bastarache emphasized that the appeal before the court dealt only with the availability of a conditional sentence and the unique concerns that s. 742.1(a) attracts. The effect of pre-sentence custody on other sentencing measures, including a probation order, was specifically not in issue:

[42] First, at the outset of his reasons [dissenting reasons of Fish J.], my colleague raises the concern that pre-sentence custody could transform what would otherwise be a penitentiary range sentence into a suspended sentence, a probation order, a discharge or a fine but not a conditional sentence. With respect, I must emphasize that the effect of pre-sentence custody on the availability of a suspended sentence, a probation order, a discharge or a fine is an issue that is not before us in this appeal. Rather, this appeal is solely concerned with whether time spent in pre-sentence custody ought to affect a sentencing judge's determination of the range of sentence and therefore the availability of a conditional sentence. As noted by Lamer C.J. in Proulx, the conditional sentence was specifically enacted as a new sanction designed to reduce the use of prison as a sanction and to expand the use of restorative justice principles in sentencing (paras. 15 and 21). Given that the conditional sentence is a new sanction with a unique combination of objectives, it should not be automatically equated with other sentencing alternatives, such as a suspended sentence, a probation order, a discharge or a fine. Accordingly, it is my position that the relationship between pre-sentence custody and the availability of a suspended sentence, a probation order, a discharge or a fine is an issue that is better left for another day.

…

47      In my view the analysis in Fice is, in any event, distinguishable from the analysis which is applicable in the context of probation orders. The analysis in Fice follows the purposive interpretation given to s. 742.1(a) in R. v. Proulx, 2000 SCC 5 (S.C.C.) , and is unique to conditional sentences which serve different objectives than probation orders.

48      In Fice , Mr. Justice Bastarache found that a conditional sentence cannot become available to an offender "who otherwise deserves a penitentiary term" (para. 4), and that Parliament, in enacting the conditional sentence regime, intended only to capture conduct serious enough to attract a sentence of incarceration but not so severe as to warrant a penitentiary term (para. 17). The availability of a conditional sentence is dependent upon the gravity of the offence and the degree of responsibility of the offender. Time spent in pre-sentence custody does not change those factors (para. 24). Therefore, time spent in pre-sentence custody should not function as a mitigating factor that can affect the range of sentence and the availability of a conditional sentence (para. 22).

[17]         Ms. West has presented no jurisprudence that this clear direction from the Supreme Court of Canada is not applicable to her circumstances.

[18]         For present purposes, the trial judge’s reasoning should have followed the binding authority of Fice : namely, he should have considered  the first stage, which involves a consideration of whether a CSO is available; and if so satisfied should have gone on to the second stage which involves a consideration of whether a CSO is appropriate.

[19]         I am not satisfied that he considered the reasons in Fice. Therefore, he erred in principle.

[20]         Moreover, even if I could infer that he considered the reasons in Fice, his reasoning does not accord with a proper application of the principles in Fice (i.e. the availability of a CSO ) – he therefore also erred in that respect.

[21]         Regarding the appropriateness of a CSO (+30 months probation), while keeping in mind Ms. West did plead guilty to a large number of offences, which is an indicator of remorse and therefore rehabilitative potential, I nevertheless conclude that there was no reliable evidence of Ms. West’s suitability and preparedness to make rehabilitative progress in the community – to the contrary, her lengthy criminal record, and the fact that her offence dates for which she was sentenced occurred between October 1, 2018 and September 10, 2020 suggest she was out of control until she was arrested (sometime in September 2020 –Tab 4 AB p. 53(1) per Ms. West). Notably, she was repeatedly released and given the opportunity to demonstrate her ability to continue to live in the community yet was unable to do so in a crime-free manner.

[22]         Her rehabilitative prospects were largely based on a hope that she would follow through with rehabilitative efforts.  While Ms. West may have subjectively and sincerely intended at the date of her sentencing to diligently pursue her rehabilitation, there was little evidence in the circumstances that the CSO was an appropriate outcome.

[23]         I appreciate that the trial judge may have been well-intentioned, and from his past experience with Ms. West may have had some basis for his confidence that a CSO (+30 months’ probation) was appropriate in the circumstances.

[24]         However, the trial judge did not reference his past experience  (if any) with Ms. West; there was no evidence presented at her sentencing; no Pre-sentence Report or Impact of Race and Cultural Assessment, each of which could have provided an individualized basis for concluding she is an appropriate candidate for a CSO.

[25]         Crack cocaine has fueled her crimes, and there was no evidence that she had been able to effectively address that addiction while  in custody  (though on remand and during the Covid 19 conditions, I recognize that this was through no fault of her own ) before she was released into the community on the CSO.

[26]         Collectively, the offences for which she was sentenced required a strongly deterrent and denunciatory sentence, with less immediate emphasis on rehabilitation.

[27]         In my opinion, the trial judge erred both in finding a CSO was available in Ms. West’s circumstances (while recognizing that the global range of sentence for the offences before the court includes this low end of the range - 865 days in custody), and in concluding that a CSO was appropriate.

[28]          I must therefore re-sentence Ms. West.

Re-sentencing Ms. West

[29]         I must first examine the appropriate global range of sentences available for the offences (I must bear in mind that the Crown proceeded by summary conviction procedure). Can I exclude penitentiary terms and probation?

[30]         I conclude it unnecessary to conduct an exhaustive determination of the range of sentence for the various offences comprising the 42 offences for which Ms. West was sentenced. The sheer volume and nature of the offences makes such a determination unnecessary.[4]

[31]          I note the trial judge observed that (although after considering the aggravating and mitigating factors):

“The amount of time that’s being recommended on these charges… based on Ms. West’s prior record, and on any one of these charges the recommendation of time could be much greater than what it is…”

[32]         In my respectful opinion, while any reasonable view would preclude a global suspended sentence/a freestanding probation order(s); considering inter alia the frequency and time span during which the offences occurred, and that the charges include break and enter into a commercial premises, theft of a motor vehicle, dangerous driving, repeated thefts from vehicles and stores, and a litany of breaches of court orders and release conditions, one could not preclude a global sentence of imprisonment in a penitentiary (before deducting pre-sentence remand credit).

[33]         Therefore, Ms. West is not eligible for a CSO on that basis (see Fice at paras. 6-13).

[34]         Fice at paras. 28 and 33, also makes clear that “the time spent in pre-sentence custody ought to be considered at the second stage of the analysis with respect to the duration of the sentence rather than at the first stage with respect to sentence range… The time spent in presentence custody should not affect the sentencing judge’s determination of the range of sentence and therefore the availability of a conditional sentence. Rather, it is a factor that ought to be considered in the course of the judge’s determination of the duration of the actual sentence imposed.”

[35]         As noted in Dawson at para. 111:

“Where a conditional sentence is set aside and incarceration is substituted, the variation to the original sentence – in this case, the imposition of penitentiary terms – takes effect from the date of the original sentence. Credit is given for the time spent on the conditional sentence, the norm being 1:1 credit… Although a more flexible approach allowing a Court of Appeal to consider all the relevant factors in determining the appropriate amount of credit has been an endorsed…”

[36]         Before the trial judge, counsel and the court agreed that a global sentence of 865 days was well within the range, and that the 200 days in custody should receive a 300-day credit per s. 719(3.1) CC. On appeal, counsel do not take issue with those positions.[5]

Conclusion

[37]         I allow the Crown sentence appeal.[6]

[38]         The 565-day CSO and 30 months probation are hereby quashed. The ancillary orders of the trial judge will continue in full force and effect as I will order them, namely:  the secondary DNA Order s. 487.051(3)(b) CC on the s. 348 offences; and a one year driving prohibition order under s. 320.24(5) for the s. 320.13 offence. I approve his waiving of the victim surcharge, for reasons of hardship per s. 737(2.1) CC.

[39]          Bearing in mind the principles of sentencing, the circumstances of the offences and of Ms. West, the mitigating and aggravating factors apparent here, and the fact that Ms. West had already served an effective sentence of 300 days, I substitute as her sentence in this court, effective January 6, 2021, 565 days’ imprisonment, less a one-for-one credit for every day served on the CSO between January 6, 2021 and the date Ms. West is taken into custody, plus 30 months probation on the same conditions ordered by the trial judge.[7]  As to the distribution of those served days between January 6 and March 30, 2021, which total 84 days, I allocate those credits between the following counts: 

April 19, 2020	CC 348(1)(b)	180 DAYS CUSTODY LESS 112 DAYS OF PRE-TRIAL CUSTODY = 68 DAYS CUSTODY CONSECUTIVE
June 2, 2020	CC 334(b)	30 DAYS CUSTODY LESS 27 DAYS OF PRE-TRIAL CUSTODY = 3 DAYS CUSTODY CONSECUTIVE
June 14, 2020	CC 333.1(1)	120 DAYS CUSTODY LESS 64 DAYS OF PRE-TRIAL CUSTODY = 56 DAYS CUSTODY CONSECUTIVE
August 16-17, 2020	CC 334(b)	60 DAYS CUSTODY LESS 32 DAYS OF PRE-TRIAL CUSTODY = 26 DAYS CUSTODY CONSECUTIVE
August 17-18, 2020	CC 348(1)(a)	180 DAYS CUSTODY LESS 104 DAYS OF PRE-TRIAL CUSTODY = 76 DAYS CUSTODY CONSECUTIVE

[40]         I strongly recommend that Ms. West have ongoing regular access to an African Nova Scotian counsellor (s) regarding her addiction and mental health issues, and any other rehabilitative needs that should be identified as significant for her rehabilitation.

Rosinski, J.