Case: R. v. Gregoire, 2018 ONCA 880 (CanLII)
Keywords: Sentencing; Credit; s. 719 (3.1) of the Criminal Code
The Appellant, Mr. Bobby Gregoire, pleads guilty for the death of his 53-day-old son. The Sentencing Judge notes the sentence must express the revulsion “society feels when a parent…loses their temper and shakes a distraught baby so hard they die”. (See quote at para. 9). The Crown initially seeks 8-10 years, but recommends the lower end of that range to reflect the guilty plea. Mr. Gregoire is convicted of manslaughter and sentenced to 5 years, 10 months incarceration (taking into account credit for with 2 years, 2 months pre-sentence custody).
Mr. Gregoire seeks leave to appeal his sentence. He contends the Sentencing Judge made four errors: unfairly minimizing the mitigating effect of the guilty plea; relying on Mr. Gregoire’s failure to advise medical personnel that his son suffered a head injury; finding that Mr. Gregoire shook his son so hard that he died; and concluding that Sentencing Judges do not have authority to provide credit in excess of a 1.5:1 ratio for pre-sentence credit for “harsh” detention conditions. (See para. 2).
The Court of Appeal determines the Sentencing Judge’s discretionary determination is entitled to deference. The sentence is not manifestly unfit.
Paciocco J.A. determined the Sentencing Judge’s exercise of discretion was “…not unreasonable and no errors of principle occurred in quantifying the impact of the guilty plea”. (See para. 4). Although Mr. Gregoire pled guilty, the Court of Appeal found the Sentencing Judge was entitled to take into account:
- that the plea was “…a late demonstration of remorse, occurring nearly three years after the event”; and
- that Mr. Gregoire “…misled medical personnel” about his son’s distress and injuries. (See paras. 5-6).
The Court of Appeal interpreted the Sentencing Judge’s comments with respect to the degree of force used by Mr. Gregoire as follows: “The sentencing judge was not saying that hard force was used. He was simply saying that the force used was hard enough to cause death, which manifestly it was.” (See para. 9).
Finally, as regards the prospect of Mr. Gregoire receiving pre-sentence credit in excess of 1.5:1 (on the basis he endured “harsh” conditions in lockdown and/or overcrowded cells), Paciocco J.A. determined that, notwithstanding R. v. Duncan, 2016 ONCA 754 (CanLII) and the Court of Appeal’s recognition that judges have the authority to give extra credit, the eight year “global” sentence in this case was appropriate. (See paras. 10-11).
This ability of judges to provide pre-sentence credit in excess of 1.5:1 is far from settled, however. Miller J.A., concurring with the decision, was explicit in suggesting this issue “…may warrant attention in a future appeal”:
The parties rely on R. v. Duncan for the proposition that sentencing judges, where circumstances warrant, have authority to give sentencing credit in addition to the 1.5:1 credit established by s. 719 (3.1) of the Criminal Code. They disagree, however, as to what those circumstances are.
It seems to me that further guidance is needed from this court as to what circumstances may justify enhanced credit. This may also require an explanation of the doctrinal foundation for the practice of granting enhanced credit outside of s. 719(3.1), with specific reference to the interpretation of s. 719(3.1) provided by the Supreme Court of Canada in R. v. Summers, 2014 SCC 26 (CanLII),  1 S.C.R. 575 and other judgments. Given the absence of submissions on these issues, it would not be appropriate to address them in the present appeal. (See paras. 14-15).
Pending any appetite on the part of Mr. Gregoire and/or the Crown to apply for leave to appeal to the Supreme Court of Canada in this case, Miller J.A. (and the Ontario criminal bar, generally) may be awaiting further comment by the Court of Appeal.
Counsel for the Appellant: Breana Vandebeek (Rusonik, O’Connor, Robbins, Ross, Gorham & Angelini LLP, Toronto)
Counsel for the Respondent: Jill Cameron (Crown Attorney’s Office, North York)