COURT OF APPEAL FOR ONTARIO
Laskin, Armstrong and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Francisco Monje
Applicant (Appellant)
Dale E. Ives, for the appellant
Frank Au, for the respondent
Heard: in writing
On appeal from the decision of the summary conviction appeal court dated April 9, 2010, by Justice David Little of the Superior Court of Justice dismissing the appeal from the sentence entered on November 12, 2009, by Justice John Getliffe of the Ontario Court of Justice.
OVERVIEW
1The appellant has a long record of violence and non-compliance with court orders during the last decade. His criminal record includes four convictions for assault causing bodily harm, one spousal assault, and one for uttering threats of death or bodily harm. Almost all of these offences were committed against Ms. J. He also has over twenty convictions for failing to comply with various court orders.
2This sentence appeal arose from the appellant’s 24th and 25th convictions of breaching a court order, for which he pled guilty. The trial judge sentenced the appellant to the maximum 18 months concurrent imprisonment, followed by two years probation. The trial judge did not give the appellant any credit for the 42 days he spent in pre-sentence custody.
3On the summary conviction appeal, Crown counsel (not Mr. Au) conceded that some credit should be given for pre-sentence custody, and submitted that 1:1 credit would be appropriate. The appeal judge agreed, and credited the appellant on a 1:1 basis for the 42 days of pre-sentence custody.
4The appeal judge – in very brief reasons – declined to give the appellant 2:1 credit because: (i) there was an absence of evidence showing that rehabilitative programs at the Elgin Middlesex Detention Centre (EMDC) were worse than those at other facilities; and, (ii) in his words, “the inability to earn parole time is not a factor I consider as I cannot consider parole in administering a sentence.”
ARGUMENT
5On the first issue, the appellant contends that the appeal judge wrongly placed the burden on the appellant with respect to the conditions at EMDC. He says that it was an error to require the appellant to adduce evidence to show that the rehabilitative programs at EMDC, and his access to them, were worse than at other facilities.
6Regarding the second issue, the appellant submits that it is the law that one of the factors that justify granting 2:1 credit for pre-sentence custody is that this period of custody does not count towards the calculation of statutory release dates. He says that the appeal judge erred by deliberately refusing to consider this binding law.
7In seeking leave to appeal to this court, the appellant takes no issue with the fitness of the 18 month sentence. Instead, he seeks leave to reduce his sentence by a further 42 days.
8This case raises two substantive questions. The first is whether the appeal judge in refusing to give the appellant more than 1:1 credit for time served in pretrial custody incorrectly analyzed the issue of the appellant’s inability to access programs of treatment at EMDC. The second issue is whether the appeal judge erred in failing to take parole consideration into account when determining credit.
9However, before deciding the merits of the appeal, the Crown correctly notes that the issue of leave to appeal to this court should be decided first. In this regard the Crown argues that leave should not be granted because the appellant fails to meet the test this court set out in R. v. R.R. (2008), 2008 ONCA 497, 90 O.R. (3d) 641 (C.A.), at para. 37.
Leave to appeal
10The Crown submits that leave to appeal should be denied for two reasons. First, whether or not the appeal judge properly exercised his discretion in giving the appellant 1:1 credit is an issue that has no significance beyond this case. Second, the merits of this appeal are not particularly strong.
11The appellant argues that both factors of the R, v. R.R. test for leave to appeal are met. He states leave should be granted because the appeal judge refused to grant the usual 2:1 credit for pre-sentence custody based on his personal view of the law. And, he submits, the appeal has merit because the appeal judge erred when he placed the onus on the appellant to establish the lack of rehabilitative programs at the local detention centre.
12I would grant leave to appeal, but only in regard to one ground. The only issue where I believe the appeal judge fell into error is in his understanding and treatment of the issue of parole eligibility and its application to pre-sentence custody. I find no merit to the appellant’s remaining arguments.
MERITS OF THE APPEAL
13I would first observe that as of February 22, 2010, new rules on what, if any, credit may be given to pre-sentence custody came into effect across Canada. The new rules, however, apply only to those persons charged after this date. Therefore, this case does not come under the new rules.
14Here we are concerned with the rules that were in place on November 12, 2009 when the appellant was sentenced. At the time, appellate courts had not set down any fixed formula, although it was generally accepted that trial courts should give more than 1:1 credit for pre-sentence custody. This was in recognition of the circumstances that in most cases are present pre-sentence custody.
15Laskin J.A. in R. v. Rezaie (1997), 1996 CanLII 1241 (ON CA), 31 O.R. (3d) 713 (C.A.), at p. 721, described the approach that a sentencing judge should take:
Although s. 721(3) of the Criminal Code is discretionary, not mandatory, in my view a sentencing judge should ordinarily give credit for pre-trial custody. At least a judge should not deny credit without good reason. To do so offends one's sense of fairness. Incarceration at any stage of the criminal process is a denial of an accused's liberty.
16As a general rule, trial courts gave 2:1 credit for pre-sentence custody and occasionally enhanced credit where the circumstances under which the offender spent his or her time had been particularly onerous. I would also note however, that in some cases less than 2:1 credit was given.
17Giving extra credit for pre-sentence custody was the practice in order to take into account certain circumstances. These generally included lack of programming or activities, overcrowding, and the fact that, unlike time spent in post-sentence custody, pre-sentence custody does not count towards a prisoner’s eligibility for full parole or statutory release. As Laskin J.A. observed at p. 721 of Rezaie, this is the reason that pre-sentence custody is commonly referred to as "dead time".
18I would note parenthetically that, to the extent that the recently legislated “new rules” concerning credit for pre-sentence custody limit an offender’s entitlement to credit on a 2:1 basis, the reality of what “dead time” is remains. That is, pre-sentence custody continues to be “dead time” for the same reasons Laskin J.A. noted in Rezaie and remains as one of the most punitive forms of imprisonment in Canada.
19In this case, the appeal judge in his exchange with appellant’s counsel noted what he believed to be the three factors to consider when deciding the issue of pre-sentence custody: first, the comparative conditions of the different detention centres; second, the availability of treatment at each detention centre; and third, the availability of parole. He then goes on to express his disagreement and apparent frustration with the third factor and makes the following comments:
So, I can’t consider the availability of parole when I sentence somebody. But I’m supposed to be able to consider it in pre-sentence as a mitigating circumstance to reduce the sentence.
I say I – I’m not prepared to do that. I mean you’re gonna have to take that to [the] Court of Appeal because I’ve written it four times and I’m trying to get them to rule on it. And I think that it’s wrong. I don’t believe that the issue of the availability of parole is anything that I can consider to assist somebody in reducing the sentence when I can’t consider it on the other end when applying the sentence.
20In other words, the appeal judge suggested that the appellant should be denied credit because courts should be “consistent” in their treatment of parole eligibility. That is to say, his view is that if it is improper for a sentencing judge to factor in parole eligibility for post-trial sentencing, it must also be improper when considering credit for pre-sentence custody.
21The Crown suggests that the appeal judge was likely alluding to the fact that, “where the incarceration history of an accused suggests that he is unlikely to be granted early release, a departure from the usual 2:1 credit for pre-sentence custody is justified.” The Crown refers to see R. v. Francis (2006), 2006 CanLII 10203 (ON CA), 79 O.R. (3d) 551 (C.A.), at para. 23 to support this proposition. I disagree. The appeal judge, with all due respect, demonstrates in his comments a misconceived understanding of the parole issue as it relates to pre-sentence custody.
22Understanding the parole issue for sentencing purposes begins with the acknowledgment that pre-sentence custody – where for most of the time that someone is incarcerated, they are presumed innocent – is more onerous than post-sentence custody. There are at least two recognized and well documented reasons for this.
23First, other than for a sentence of life imprisonment, legislative provisions for parole eligibility and statutory release do not take into account time spent in custody before sentencing. Second, local detention centres ordinarily do not provide educational, retraining, or rehabilitation programs to an accused in custody awaiting trial: see Rezaie, at p. 721.
24The appeal judge in our case is correct when he notes that eligibility for parole, except as observed in cases like Francis, is not a factor properly considered when deciding the overall sentence of imprisonment for an offender. That is because it is a matter that parliament and the legislature have left to prison officials and parole boards who are, as I noted, guided by the legislative provisions that do not take pre-sentence custody into account.
25In conclusion, the appeal judge is in error by treating the court’s jurisdiction over post-sentence custody as being the same as that over pre-sentence custody. He failed to appreciate and consider that the pre-sentence custody served by the appellant does not count towards his eligibility for parole or statutory release. In other words, he failed to take into account a relevant consideration in assessing credit for the appellant’s pre-sentence custody. This constitutes an error in principle and the sentence imposed by the appeal judge is not entitled to deference.
CONCLUSION
26As I noted earlier, the appellant does not appeal the fitness of the 18 month sentence. His only submission is that he should have received 2:1 credit of pre-sentence custody. Simply, if the appeal judge was of the view that the appellant was entitled to pre-sentence credit on a 1:1 basis without factoring in his error, it seems fair that there should be increased credit when his error is corrected. There is nothing in the Crown’s submissions that persuade me otherwise.
27I would, therefore, credit the appellant with pre-sentence custody on a 2:1 basis.
DISPOSITION
28I would grant the appellant leave to appeal his sentence, allow his appeal, and grant him credit for his 42 days of pre-sentence custody on a 2:1 basis. Accordingly, the appellant’s sentence would be reduced to one of 15 months.
RELEASED:
“JAN -4 2011” “H.S. LaForme J.A.”
“JL” “I agree John Laskin J.A.”
“I agree Robert P. Armstrong J.A.”
