COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Green, 2023 ONCA 317
DATE: 20230505
DOCKET: C70322
Feldman, Thorburn and Coroza JJ.A.
BETWEEN
His Majesty the King
Respondent
and
William Green
Appellant
William Green, acting in person
Erica Whitford, for the respondent
Heard: February 8, 2023
On appeal from the sentence imposed on January 19, 2022, by Regional Senior Justice Bruce G. Thomas of the Superior Court of Justice, sitting without a jury.
REASONS FOR DECISION
[1] The appellant, William Green, pleaded guilty to manslaughter, contrary to s. 236(a) of the Criminal Code, R.S.C. 1985, c. C-46, on October 26, 2021. The plea followed a term of pre-trial house-arrest bail of 4 years and 10 months, which began before the COVID-19 pandemic. During this period, there were multiple lengthy delays leading up to the trial.
[2] On January 19, 2022, the sentencing judge imposed a sentence of 7 years imprisonment, less pre-sentence custody of 19 days (credited at 1.5 to 1).
[3] Since the appellant had been on house arrest for 4 years and 10 months prior to his guilty plea, the sentencing judge further reduced the sentence by 6 months (Downes credit), leaving a net sentence of 77 months to be served: R. v. Downes, 79 O.R. (3d) 321 (C.A.).
[4] This was a tragic case. The deceased and the appellant were long-time friends and were playing a game of Russian Roulette with a loaded firearm. The appellant admitted that he deliberately and willfully discharged the firearm at the deceased and that this unlawful act caused the deceased’s death. The appellant was intoxicated. Due to his level of intoxication, the appellant was unable to form the requisite intent necessary to commit murder.
[5] At the time of sentencing, the appellant had four dated convictions for assault and one entry for possession of a restricted weapon. The last conviction was, at the time of sentencing, almost 27 years old. His longest sentence was 90 days imprisonment.
[6] As noted above, the appellant was released on bail after his arrest. He spent 4 years and 10 months on house arrest bail before he was sentenced.
[7] At his sentencing hearing, the appellant requested a sentence of 5 years imprisonment, less credit for any pre-trial custody and 9 to 12 months of credit for his restrictive bail conditions.
[8] In his reasons for sentence, the sentencing judge explained that the overriding purposes of a sentence for manslaughter are denunciation and deterrence. The sentencing judge found that the offence was “grave”, as there was a loss of a human life. While the appellant was intoxicated, he was, nonetheless, responsible for the death of the victim. The sentencing judge noted that, due to the requirement of use of a firearm, there was a minimum mandatory sentence of 4 years imprisonment for a conviction pursuant to s. 236(a) of the Code.
[9] The sentencing judge noted that the appellant was a close friend of the victim. Additionally, he accepted that, at the time of sentence, the appellant’s mental and physical health had deteriorated, he was extremely remorseful and he suffered the negative effects of almost 5 years of house arrest without a breach. Notably, the fact that a portion of the house arrest was served during the COVID-19 pandemic was found to be a further mitigating factor.
[10] The appellant has a good relationship with his three grown children. He also had a long work record of 27 years at Chrysler Canada. As a result of these charges, his employment was terminated. He was initially denied his pension and benefits, although these were restored after litigation. Regardless, the appellant has suffered significant financial loss.
[11] The appellant argues, on appeal, that the sentencing judge should have given him more than 6 months of credit for his restrictive bail conditions. He was on house arrest for 4 years and 10 months, he did not breach his bail, and there is no suggestion that he contributed to the delay in his proceedings.
[12] As this court noted in R. v. C.C., 2021 ONCA 600, at para. 4, harsh conditions of bail act as a mitigating factor upon sentencing. Although it is not uncommon to speak of providing “credit” for stringent bail conditions, “pre-trial bail is conceptually a mitigating factor” in assessing a fit sentence: R. v. Panday, 2007 ONCA 598, 87 O.R. (3d) 1, at para. 28. Mitigation is required because stringent bail conditions can be punitive and therefore “akin” to custody: Downes, at para. 31.
[13] A sentencing judge’s decision to grant “Downes credit”, which is set off against the sentence that would otherwise be imposed, is a highly discretionary exercise. However, this court can intervene if the sentencing judge commits an error in principle, fails to consider a relevant factor, or erroneously considers an aggravating or mitigating factor. Even then, appellate intervention is only warranted where it appears, from the sentencing judge’s decision, that such an error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44.
[14] In this case, the sentencing judge acknowledged that the 4 years and 10 months that the appellant spent on house arrest, prior to his sentencing had to be considered as a mitigating factor. Further, he recognized that the appellant had been “committed” to the bail conditions.
[15] In the end, the sentencing judge found that only 6 months Downes credit should be given. In his view, to award any further credit would have resulted in an unfit sentence.
[16] In our view, appellate intervention is warranted in this case. While the sentencing judge acknowledged the length of time the appellant spent on bail, it appears that he did not consider that the appellant was not responsible for any of the delays in his case. While the COVID-19 pandemic certainly contributed to the delay in this matter, considerable delay had already occurred before the onset of the pandemic. It is noteworthy that, on appeal, the Crown acknowledges that the appellant was not responsible for this delay. This is a significant factor and the sentencing judge’s failure to give it any weight is an error in principle that allows this court to intervene.
[17] Where a sentencing judge makes an error in principle that has an impact on a sentence, this court, upon review, must perform its own sentencing analysis to determine a fit sentence: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 27. Considering all of the mitigating factors in this case, we find that granting an additional 6 months of Downes credit, sought by the appellant at first instance, is just and appropriate.
[18] During oral argument, the appellant also submitted that the sentencing judge did not consider his Indigenous background in arriving at a fit sentence. To be fair to the sentencing judge, there is nothing on the record that would suggest that he was made aware of, knew of, or was required to inquire into the appellant’s claim that he is Indigenous.
[19] The appellant has provided information that he is Indigenous and has participated in Indigenous programming while incarcerated. At the conclusion of the oral hearing, the court directed him to speak to duty counsel and advise this court whether he was asking for the court to order a post-conviction Gladue report as fresh evidence. Duty counsel has informed the court that the appellant has since advised that he is not pursuing a Gladue report. Having reviewed the appellant’s materials, we are nonetheless satisfied that to give effect to the remedial purpose of s. 718.2(e) of the Criminal Code the appellant’s sentence should be reduced a further 6 months.
[20] In sum, we would reduce the net sentence imposed by the sentencing judge by 12 months.
[21] For these reasons, the appeal is allowed, and the sentence imposed by the sentencing judge is reduced to 65 months. A sentence of that length properly balances all of the mitigating and aggravating factors. All other parts of the sentence stand.
“K. Feldman J.A.”
“Thorburn J.A.”
“S. Coroza J.A.”