C.A.C. No. 123233 NOVA SCOTIA COURT OF APPEAL Pugsley, Bateman and Flinn, JJ.A. BETWEEN: KEVIN RILEY and HER MAJESTY THE QUEEN Respondent Louis M. Walsh for the Appellant William D. Delaney for the Respondent Appeal Heard: March 19, 1996 Judgment Delivered: May 10, 1996 THE COURT: Appeal allowed per reasons for judgment of Pugsley, J.A.; Flinn, J.A., concurring and Bateman, J.A., dissenting. Pugsley, J.A. Kevin Riley applies for leave to appeal, and if granted, appeals from the sentence of five months' incarceration to be followed by eighteen months' probation, imposed on him by a Provincial Court judge, after Mr. Riley pleaded guilty to theft of property of a value exceeding $5,000 contrary to Section 334 of the Criminal Code. Mr. Riley stole his grandmother's car from her home at Newport Station at about 12:30 a.m. on June 20th, 1995, and together with two friends, drove to the Canada-U.S. border station at St. Stephen, New Brunswick where they were arrested by the border guards when they attempted to cross into the US at approximately 8:00 a.m. later the same morning. The three had total of $20 in their pockets. The car was eventually returned to the owner without damage. Mr. Riley is single and has no children. His prior record is conviction for mischief for breaking window for which he was required to pay $50 fine plus restitution. The principal ground of appeal is that the sentencing judge failed to give sufficient weight to the principle of rehabilitation. BACKGROUND The information developed by Correctional Services and placed before the sentencing judge, in the form of pre-sentence report, discloses that: Mr. Riley was born on November 24th,1976, and was raised primarily by his paternal grandparents. During his late childhood, he lived with his father for 3-4 years but eventually returned to his grandparents where he remained until he was 17. He was then directed to leave their home as they were concerned about an excessive telephone bill, lack of respect, and negative attitude; Mr. Riley moved to the house of the parents of girlfriend, and then to the home of his sister in Windsor where he resided at the time this offence was committed; He has grade seven education and has basic reading and writing skills. Although he attempted to complete grade eight on number of occasions, in each case he quit before completing the school year; When he was 14, his grandmother took him to see psychiatrist as she was concerned about his behaviour in school. After attending two or three appointments, Mr. Riley refused to continue with any further sessions. He was prescribed medication but refused to take it; Mr. Riley acknowledged regular, heavy use of cannabis products since 1991. He would start using drugs shortly after he rose in the morning and used them intermittently throughout the day. He experimented with LSD and cocaine. He acknowledged consuming alcohol regularly, but maintained that he had no problem with these substances; He failed to report for his first pre-sentence interview, arriving later on the same day confessing that he had overslept; The probation officer writes: He acknowledged he was under the influence at the time of the Pre­Sentence Report interview. He seemed to be more relaxed than most offenders interviewed for Pre-Sentence Report. He was very open about his use of drugs to the point where he bragged about the quantity of cannabis and alcohol he sometimes consumes. Kevin Riley openly accepted full responsibility for his offence but he did not express remorse. In fact, he smiled frequently when relating the details of the offence, which suggested to this writer that he does not recognize the seriousness of his behaviour and the extent to which it upset other family members, particularly his grandparents. From Kevin Riley's point of view, his main problem is that he lives in an economically-depressed area which provides him with few opportunities. His solution is to move to Western Canada where he would have more opportunities. He seems to have very little understanding about the role his limited education, weak work history, substance abuse, friends, and his attitude play in his current circumstances. Mr. Riley was unemployed at the time of the offence, having been laid off from his previous job for missing too much work. SENTENCE HEARING DECEMBER 5, 1995 fair interpretation of the submissions of Crown counsel to the sentencing judge would suggest to an independent observer that the Crown was recommending that sentence be suspended. Crown counsel submitted: indicated to Legal Aid at the time of the plea that (the Pre-Sentence) report was favourable, that obviously something short of incarceration could work because Mr. Riley is relatively young and Mr. Riley, as understand it, has one minor mischief charge in the past. So he does not have lengthy record and one would like to do anything sort of incarceration when its possible. So the question is what's the best thing to do for Mr. Riley. And the best thing to do for Mr. Riley is to get him off the drugs and the alcohol and try to get him on some sort of counselling program. The question is whats the best way to do that. I'll leave that to Your Honour. One option, of course, is to throw him in jail for awhile and hope that dries him out. Whether there's an option today or not, guess depends on what Mr. Riley has to say today. Ideally, of course, would be to get Mr. Riley treated outside of any form of incarceration so that he can also function in society. Defence counsel, in short submission, recommended period of probation and advised the sentencing judge, in response to an invitation from the bench, that Mr. Riley did not wish to say anything personally to the Court. The sentencing judge was obviously influenced by the negative information contained in the Pre-Sentence Report to which Mr. Riley had made no effective response. The purpose of the report is, in the words of Chief Justice MacKeigan of this Court, in R. v. Bartkow (1978), 24 N.S.R. (2d) 518 at 522: to supply picture of the accused as person in society his background, family, education, employment record, his physical and mental health, his associates and social activities, and his potentialities and motivations. It was, in my opinion, quite appropriate for the sentencing judge to use the information in the report to assess Mr. Riley's character so as "to relate the offence to the individual" (R. v. Brown (1985), 1985 CanLII 3479 (MB CA), 31 Man.R. (2d) 268 per Monnin, C.J., at 274). The sentencing judge said in part: You certainly have certain attitude with respect to your habits and think the evidence shows that you do have problem with the use of cannabis and other drugs. You have not used your time very constructively and can understand, you were 18 you're 19 now, you want to enjoy your particular freedom. And it is fine to do so and you are at liberty to do so as long as you don't hurt others and you don't break the law and now you have, for the second time, and now your business has become our business. The sentence that I'm going to pronounce is one which hopefully will fit you and your particular needs. think you must understand that you will have to be responsible for yourself and you do have problems that must be addressed since left to you alone they will go unheeded. Mr. Riley was granted release pending appeal on the usual conditions together with the following restrictions: that he reside with his father, Larry Riley; that he not use or have in his possession at any time any drug prohibited by the Narcotic Control Act or the Food and Drugs Act; that he not consume or have in his possession at any time any alcoholic beverages; that he actively seek gainful employment and if he obtains employment, to maintain that employment; that he not associate with any person known to him to have Youth Court record or criminal record; that on or before the 10th day of January, 1996, he attend before counsellor with the Nova Scotia Drug Dependency Services for assessment and thereafter as directed by the counsellor. HEARING BEFORE THIS COURT ON MARCH 19, 1996 Mr. Riley's present counsel made number of submissions to this Court that were based upon facts or inferences that were not readily apparent from the record before us; in particular, 1. The Pre-Sentence report was prepared on November 29, 1995. Neither Mr. Riley or his counsel were aware of the contents of the report except for verbal advice from Crown counsel to Mr. Riley's Legal Aid representative that the Pre-Sentence Report was positive. Mr. Riley's Legal Aid lawyer, assuming that Mr. Riley would receive suspended sentence in view of his discussion with Crown counsel, sent his articled clerk to the hearing; 2. Mr. Riley has seen the errors of his ways, is truly remorseful, has attempted to secure employment, and has apologized to his grandparents who are paying for the cost of this appeal in the hope of keeping him out of jail; Counsel asked the Court to consider short letter report dated March 18, 1996, from one Laura Nichols, who has Masters of Education, and is described in the letter, as clinical therapist employed by the Drug Dependency Section of the Nova Scotia Department of Health. The contents of the letter were only given to Crown counsel late in the afternoon of March 18 the day before the hearing of this appeal. Crown counsel attempted to verify the information by speaking to Ms. Nichols, but she refused to discuss any details of the report since she did not have Mr. Riley's consent to do so. Section 687(i) of the Code provides: Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive, (a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or (b) dismiss the appeal. This Court has adopted relatively flexible guidelines respecting the acceptance of minor factual matters in sentence appeals, particularly when the evidence is tendered in favour of accused persons (R v. Hogan (1979), 1979 CanLII 2895 (NS CA), 34 N.S.R. (2d) 641 at 652). Crown counsel acknowledged, candidly and fairly, that this type of case would generally attract suspended sentence with probationary period tied to certain conditions, but for the negative information in the Pre-Sentence Report. The matters raised by Mr. Riley's counsel are, in my opinion, proper matters for consideration in sentence appeal. The panel was concerned, however, about the manner in which critical information was presented to the Court by defence counsel and the lack of opportunity afforded to the Crown to assess, let alone contest the information. Shortly after reserving decision, the Court advised that defence counsel would be given an opportunity to file affidavits with the Registrar of the Court up to April 9, 1996, respecting the issues raised, and in particular: 1. Mr. Riley's alcohol and drug use since December 4, 1995, including assessment and counselling programs; 2. Mr. Riley's employment since December 4, 1995, and his present employment opportunities; 3. His association, or lack of association, with offenders since December 4, 1995. The Crown was then given an opportunity to file affidavits in response with the Registrar, up to April 16, 1996. One Affidavit, that of Mr. Riley's father, Larry Riley sworn March 30, 1996, was filed on behalf of Mr. Riley. The Crown elected not to file any affidavits. Larry Riley deposes in part: 2. THAT since (my son) was released on bail pending the determination of this Appeal he has resided with me and do verily believe that he has complied with all of the conditions of his release. 3. THAT am totally disabled and unable to be gainfully employed and while (my son) resided with me he painted and repaired my home, which had not had any maintenance for three years, cut firewood in my woodlot and in his grandfather's woodlot. His grandfather paid him $10.00 per day as spending money and was adequately compensated for his room and board by the work he did for me while he stayed with me. 4. THAT attached hereto as Exhibit "A" to this my Affidavit is note from the owner of P.E. Lowe Salvage Ltd. and pay stub confirming that (my son) was employed for the first week in March by that company and further that his work was satisfactory and he would be re-employed as soon as that company obtains another salvage contract requiring the hiring of employees. 5. THAT (my son) has not consumed alcohol or used any nonmedically prescribed (drugs) while he was residing with me and has not had any behaviour or personality changes which would indicate use without my knowledge. 6. THAT (my son) has an initial counselling appointment with Laura Nichols of the Alcohol/Drug unit of the Hants Community Hospital on April 23, 1996 which was the earliest available date. 7. THAT (my son) has not given me any concern and has not shirked any work requested of him since his release on bail and his residence with me. 8. THAT (my son) has had no association with any of the individuals which were mentioned in the presentence report as part of (my son's) problem and to my knowledge has not associated with anyone known to have criminal record. 9. THAT (my son) has become integrated into our family again since he has returned and takes an interest in his younger brother and sister. 10. THAT (my son) has responded extremely well to the supervision and structured guidelines which have been placed on him while he has resided with me and has never refused chore or task. He does not procrastinate when he is working and has volunteered to preform jobs or simply done work that needed to be done without being asked. 11. THAT while (my son) was employed by P.E. Lowe he left home at 4:30 am. and did not return until between 7:00 9:00 pm. He was truly pleased to have the job and disappointed when it ended. 12. THAT the owner of P.E. Lowe has advised that he expects another contract which will require (my son's) services in New Glasgow area in the near future. (My son) is eager to be employed although with the travelling to the job site it will again make for 16 hour days. It is possible that the employees may be required to stay overnight at the job site on occasion. 13. THAT it is my assessment that (my son) has undergone significant rehabilitative change since he came to live with me and is not likely to become involved in the type of attitude and behaviour which resulted in his conviction. He is appreciative of the things which are done for him, has apologized to his grandmother for his improper behaviour, become socially involved with our family and there have been no problems in his compliance with the strict terms of his bail release. Counsel for Mr. Riley had directed our attention to Larry Riley's affidavit of December 12, 1995, filed in support of his son's application for release pending appeal, which affidavit provides in part: 2. That was in Court on Monday, December 4, 1995 when my son was sentenced for the theft of his grandparents' motor vehicle. 3. That Mrs. Etter was representing my son at the hearing and advised that the Crown would not be recommended term of imprisonment and that my son would receive sentence involving probation and possible fine. 11. That no evidence was called or representations made to refute certain negative comments made at the hearing which were not true or based on fact. 12. That is it my understanding that Mrs. Etter was an article clerk who was also surprised by the sentence imposed and advised my son after the hearing that this was not supposed to happen. 13. That Kevin's grandparents, who were the victims of the theft do not want Kevin to serve jail term and have offered to pay for the legal expense of having the sentence reviewed. consider the information disclosed in Larry Riley's two affidavits to be significant and relevant to the disposition that should be made in this appeal. The letter of March 18, 1996, from Ms. Nichols does not, in my opinion, have significant probative value. Ruby on Sentencing (4th ed.) at page 204 writes: The proper sentencing of first offenders requires that the sentencing judge exhaust all other possibilities before concluding that imprisonment is required... thus, in examining the possibility of custodial term, the court should ask whether it is "the only appropriate sentence to be imposed". One may be treated as if one were first offender, in appropriate circumstances, if custodial sentence has never been imposed, or even if one has served only very minor term of imprisonment. The notion that first offender should be treated leniently in the hope that lesser punishment would be effective has been characterized as "doubly so" in the case of youthful first offenders. There is presumption of fact that one who has not offended previously is capable of reform and not to be dealt with accordingly. Mr. Riley should be considered as youthful first offender. While there is authority that the "fitness" of the sentence should be assessed in light of the facts available to the trial judge, Ruby writes at page 462 that: The general position in Canada is that conduct after sentence may be considered if there has been change of circumstances after the fact of conviction and sentence, unknown to the trial judge, the court should exercise its discretion and act on it pursuant to the obligation to assess the fitness of the sentence at the time when the appeal is heard. The negative information contained in the pre-sentence report, not available to Mr. Riley or his counsel until the morning of the sentence hearing, obviously played significant part in the disposition reached by the sentencing judge. The Affidavit of Larry Riley of March 30, 1996, effectively illustrates that there is sound reason for concluding that rehabilitation has reasonable chance of success. In view of the age of Mr. Riley, and the absence of any significant past criminal record, as well as the information now available to us, I conclude that the sentence imposed is not fit. It is not in society's interest that Mr. Riley should be removed out of his present positive environment and placed in custody. I would grant leave to appeal, allow the appeal, set aside the sentence of five months' imprisonment, to be followed by probation of eighteen months, and substitute a sentence suspended for two years, subject to the same terms and conditions attached to the probation determined by the sentencing judge. PUGSLEY, J.A. Concurred in: FLINN, J.A. BATEMAN, J.A.: (Dissenting) have had the advantage of reading the judgment of my colleague, Pugsley, J. A., and need not review the facts underlying this appeal. accept that authority can be found, within s. 687 of the Criminal Code, augmented by the case law, to accept on appeal evidence of an offender's circumstances, subsequent to sentence. (See for example, R. v. Woof (1973), 1973 CanLII 1383 (ON CA), 14 C.C.C. (2d) 396 (Ont. C.A.); R.. v. Pigeon, 1969 CanLII 1007 (QC CA), 1970] C.C.C. 177 (Que. C.A.); R. v. Alfs (1974), 17 C.L.Q. 247 (Ont. CA); v. Shaw and Brehn (1977), 36 C.R.N.S. 358 (Ont. C.A.)) accept, as well, that the court, on sentencing appeal, can determine to receive the information on more informal basis than may be required under the procedure pertaining to the admission of fresh evidence, particularly where that information is favourable to the offender. Here, counsel for the offender made submissions at the appeal hearing on variety of matters, including the circumstances of the offender subsequent to conviction. He filed with the Court the March 18, 1996, letter from the substance abuse counsellor, Ms. Nichols, indicating that Mr. Riley had been assessed by her on February 7, 1996. agree with Pugsley, J. A., that the letter from Ms. Nichols has no probative value. It provided the Court with no useful information about Mr. Riley's past or present substance abuse. In view of the number of new issues raised by counsel for Mr. Riley on the appeal, he was given leave to file affidavit evidence in regard to: 1. Mr. Riley's alcohol and drug use since December 4, 1995, including assessment and counselling programs; 2. Mr. Rileys' employment since December 4, 1995, and his present employment opportunities; 3. His association, or lack of association, with offenders since December 4, 1995. In response, counsel for Mr. Riley filed the affidavit from Larry K. Riley, the offender's father. The contents of that affidavit are detailed in the judgment of Pugsley, J. A. The affidavit consists, in large measure, of hearsay opinion and speculation from Mr. Riley's father. With the exception of the employment for one week, there is little specific information as to how Mr. Riley has spent his time, since conviction, save that he has been living with his father. He deposes that his son "has an initial counselling appointment" with Ms. Nichols on April 23, 1996, "which was the earliest available date". There is no information as to when the appointment was requested. There is no indication in the letter from Ms. Nichols, filed at the hearing, that any further appointment was recommended or scheduled. Additionally, Mr. Riley's stated belief that his son has not abused drugs or alcohol while residing with him, is of marginal value, given the offender's history of daily use, as revealed in the Presentence Report. Similarly, while do not doubt the sincerity of Mr. Riley's assertion that his son has not been in the company other offenders since residing with him, it is questionable whether he is in position to speak to his son's associations. In my view, the affidavit from Mr. Riley is lacking in probative value. More troubling is the fact that no affidavit is filed from the offender. He is the person in the best position to speak to these issues. There was no explanation as to why his affidavit had not been filed. Absent, as well, is any elaboration from Ms. Nichols on the results of her February assessment of Mr. Riley. It was made clear to counsel for the appellant that the March 18 letter, filed at the hearing, provided inadequate information. In summary, find that the information on the appellant's situation since sentencing is not reliably nor properly before the court. It is left, then, to determine the fitness of the sentence at the time made. In v. Shropshire (1995), 1995 CanLII 47 (SCC), 102 C.C.C. (3d) 193, Iacobucci J., speaking for the court, said at paragraph 46 An appellate court should not be given free rein to modify sentencing order simply because it feels that different order ought to have been made. The formulation of sentencing order is profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon written record. variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable. cannot say, taking into account the circumstances of the offence and this offender, that the sentence imposed by the trial judge was clearly unreasonable. Accordingly, would dismiss the appeal. BATEMAN, J.A. CANADA PROVINCE OF NOVA SCOTIA 1995 Case No. 558566 IN THE PROVINCIAL COURT HER MAJESTY THE QUEEN versus KEVIN DALE RILEY HEARD BEFORE: The Honourable Judge Jean-Louis Batiot PLACE HEARD: Windsor, Nova Scotia DATE HEARD: December 4, 1995 CHARGE: Between the 19th day of June, 1995, and the 20th day of June, 1995, at or near Newport Station, in the County of Hants, Province of Nova Scotia, did steal vehicle, to wit: 1995 Chevrolet Cavalier, Nova Scotia License AVB 881, VIN 3G1JC524055807941, the property of Helen Riley, of value exceeding five thousand dollars, contrary to Section 334 of the Criminal Code. COUNSEL: William N. Fergusson, Q.C., for the Prosecution Ms. Lorraine Etter, for the Defence C.A.C. No. 123233 NOVA SCOTIA COURT OF APPEAL BETWEEN: Kevin Riley and Her Majesty the Queen Respondent REASONS FOR JUDGMENT BY: Pugsley, J.A.
The appellant appealed his sentence of five months in prison to be followed by 18 months probation following his plea of guilty to the theft of his grandmother's car. Crown counsel acknowledged that this type of case would generally attract a suspended sentence with probation but for negative information in the pre-sentence report, which the appellant had not seen prior to sentencing. The appellant argued that he had seen the errors of his ways, was seeking employment, was truly remorseful, and had apologized to his grandparents, who were paying for the appeal in the hope of keeping him out of jail. The appellant was allowed to file affidavits as to the his progress concerning his problems with drugs and alcohol. Per Pugsley, J.A., Flinn, J.A. concurring, allowing the appeal and ordering a suspended sentence subject to terms, that the sentence imposed was not fit, and that it was not in society's interest that the appellant should be removed form his present positive environment. Per Bateman, J.A., dissenting, that the affidavits filed on behalf of the appellant were lacking in probative value. It is left, then, to determine the fitness of the sentence at the time it was made. Taking into account the factors before the sentencing judge, the sentence imposed could not be found to be clearly unreasonable.