Criminal Law – Break and Enter with Intent to Commit Indictable Offence – Sentencing – Appeal
The Crown appealed against the decision of a Provincial Court judge to sentence the respondent to an 18-month conditional sentence (CSO) after his conviction for breaking and entering with intent to commit an indictable offence contrary to s. 348(1)(a) of the Criminal Code on the ground that, under s. 742.1(c) of the Code, the sentence was illegal. The Crown also sought to adduce fresh evidence that the respondent breached the CSO within a day of its imposition. He failed to abide by the condition that he reside in his sister’s residence and to not change his residence without approval. At the hearing for this breach, the respondent had admitted that he never had any intention of living at his sister’s house despite his representations to the contrary to the sentencing judge. The respondent had entered a private residence, ransacked it and stolen a number of personal items and heirlooms from the owner. The respondent’s criminal record included 70 youth and adult convictions, including multiple convictions for breaking and entering and being unlawfully in a dwelling house. The Crown had recommended a custodial sentence of 18 to 24 months, at the lower end of the range in recognition of the significant Gladue factors present in the respondent’s life. Defence counsel argued that time served on remand followed by a community-based sentence with conditions involving addictions treatment and counselling to support the respondent’s return to education would be appropriate. The sentencing judge noted the impact the offence had had on the homeowner and the presence of Gladue factors and decided that any sanctions other than imprisonment were reasonable in the circumstances. Taking into account the time on remand, he imposed an additional 18 months to be served in the community under the CSO.
HELD: The appeal was allowed. The court set aside the 18-month CSO and varied the sentence by imposing a term of 18 months’ incarceration. It found that the sentence was demonstrably unfit because it did not include a period of custodial incarceration to reflect the seriousness of the offence and the respondent’s criminal record, and because it did not comply with s. 742.1 of the Code. Although the fresh evidence was relevant and credible, the court dismissed the application to adduce it. It could not have affected the sentencing judge’s assessment of a fit sentence because it was evidence of post-sentencing non-compliance with the sentence.