Court Information
Court File No.: London
Date: 2012-05-21
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— And —
Joshua Sabatine
Judicial Officer and Counsel
Before: Justice Jeanine E. LeRoy
Heard on: February 17, 2012, April 30, 2012, May 10, 2012
Reasons for Judgment released on: May 21, 2012
Counsel:
- Mr. Charles Ye, for the Crown
- Mr. Eric Seaman, for the accused Joshua Sabatine
LEROY J.:
BACKGROUND
[1] Twenty-five year old Joshua Sabatine was arrested September 26, 2011, for a number of charges of theft under $5,000.00, contrary to section 334(b) of the Criminal Code of Canada ("the Code"). He did not apply for bail, nor did he formally consent to his detention, but chose instead to wait in custody for the availability of treatment at Westover Treatment Centre ("Westover") for his addiction to Oxycontin.
[2] On February 17, 2012, Mr. Sabatine pleaded guilty to seven counts of theft under $5,000.00.
[3] The facts of each offence (seven distinct offence dates) involved shoplifting items from the LCBO, The Bay, Walmart, Zellers, Best Buy, and The Real Canadian Superstore. These items included alcohol, clothing, DVD's, and headphones. All items were recovered.
[4] Mr. Sabatine told police he took the items to finance the drug addiction. He has lived with this addiction for years having been prescribed Oxycontin for pain, after his finger was cut off while working as a cabinet maker. He did not have a criminal record (see Exhibit 1) prior to becoming addicted to this drug.
[5] Following his pleas, Mr. Sabatine was released from custody, and the sentencing hearing was adjourned to April 10, 2012, so he could attend Westover.
[6] Due to a relapse, however, he was not admitted to Westover, but kept in contact with two outreach workers from Streetscape of Mission Services of London (see Exhibit 2), and otherwise complied with his bail conditions until April 10, 2012, when he failed to appear in court for sentencing. A bench warrant was issued for his arrest. He did, however, contact his counsel late that same afternoon.
[7] The next day when the London Police attended at the address where he was required to reside while on bail, they discovered he no longer lived there.
[8] On April 12, 2012, Mr. Sabatine was arrested for stealing clothes from Winners. Again, he did not apply for bail nor did he formally consent to his detention.
[9] On April 30, 2012, Mr. Sabatine pleaded guilty to failing to attend court, contrary to section 145(5) of the Code, failing to comply with his recognizance, contrary to section 145(3) of the Code, and theft under $5,000.00, contrary to section 334(b) of the Code.
[10] The sentencing hearing for those three matters and the previous seven charges was then adjourned at my prompting to May 10, 2012, to permit further submissions from counsel on the issue of enhanced credit as provided for in section 719(3.1) of the Code.
[11] At the sentencing hearing on May 10, 2012, Mr Sabatine testified that when he was originally incarcerated at the Elgin Middlesex Detention Centre ("EMDC") until his release on February 17, 2012, he was placed in cell 2 on Unit 3-Left. He remained in that unit for his entire stay. He described this cell as "very small", "dirty", and suffering from a bed bug infestation.
[12] As the third man in the cell, he was required to sleep on a mattress on the floor in the two and a half foot space between the two beds. Three quarters of the way into his time there, one of the other two men in the cell was released and he then slept on a bed.
[13] He testified that on approximately 5 occasions his unit was "on lockdown" which meant they were confined to their cell 24 hours a day, every day. All privileges were suspended including the usual 20 minutes per day allowed outside in the yard. A shower and twenty minute phone call were permitted only every third day. Each "lockdown" lasted four to seven days with the longest being approximately 20 days. He testified that his behaviour was never the cause of the "lockdown". Indeed, he indicated that he had no behaviour issues on record at EMDC.
[14] Mr. Sabatine took advantage of the Narcotics Anonymous and Cocaine Anonymous sessions offered at the institution every second week, and found them helpful. He was not a cocaine user, but felt that the principles discussed there would assist him. No other drug treatment or counselling sessions were offered to him at EMDC. In his words, "I took advantage of everything I could." He was not aware of any available programs in which he did not participate. He testified that assistance for his drug problem was more available and of better quality outside EMDC than inside that institution.
[15] No stranger to the jail since becoming addicted to Oxycontin, Mr. Sabatine testified that he had never seen as high a number of inmates at EMDC as were there during this time period.
[16] When he was re-incarcerated at EMDC on April 13, 2012, he was placed in the same unit and again slept on the floor until sometime in early May. There were no "lockdowns" during this time period, but, as a result of a search for weapons in the institution, Mr. Sabatine and the other inmates were not allowed to shower for approximately 3 days.
[17] It should be noted that defence counsel attempted to call the security office at EMDC to confirm this information, but the three messages he left were not returned.
[18] Although Mr. Sabatine was cross-examined, the veracity of his statements concerning the conditions at EMDC and concerning his good behaviour went unchallenged by the Crown.
[19] Following submissions of counsel on May 10, 2012, the matter was adjourned to May 15, 2012, and then again to today's date for decision.
PRE-SENTENCE CUSTODY SERVED
[20] Mr. Sabatine spent 145 days in pre-sentence custody prior to his plea on February 17, 2012 (September 26, 2011 to February 17, 2012). As noted earlier, he spent that time in custody awaiting admission to Westover.
[21] Following his arrest on April 12, 2012, he spent a further 19 days in custody until the date scheduled for his sentencing hearing, namely, April 30, 2012. As noted previously, this was the date he entered guilty pleas to the last three charges.
[22] He then spent a further 21 days in custody from May 1, 2012 until May 21, 2012, pending further submissions by counsel and my decision.
[23] The total pre-sentence custody served by Mr. Sabatine is 185 days.
POSITIONS OF COUNSEL
[24] The Crown's position on the quantum of sentence is 9 months jail concurrent on each of the original seven charges, and a further 3 months jail consecutive on the subsequent charges (but concurrent to each other) for a total of 12 months jail less credit for pre-sentence custody on a 1:1 basis. The Crown argued against allowing any enhanced credit for pre-plea custody in this case because Mr. Sabatine violated his bail. If I give effect to this submission (365 days minus 185 days of pre-plea custody), the sentence imposed would be a further 180 days or six months in custody. As a result, Mr. Sabatine would spend a total of 365 days in custody.
[25] Defence counsel advised the court that Mr. Sabatine was accepted back into the residential treatment program at Westover for May 28, 2012. He, therefore, argued that the appropriate sentence was 287 days in total or approximately nine and a half months. He arrived at this number by giving enhanced credit to the 185 days of pre-sentence custody at a rate of 1.5:1 for a total of 278 days and adding a further 9 days in custody from today's date to allow for Mr. Sabatine's release the day prior to being admitted to treatment. Defence counsel argued that Mr. Sabatine ought to be given enhanced credit for his pre-sentence custody due to the conditions at EMDC and the loss of remission/parole eligibility.
[26] The chart below illustrates both counsel's positions and the resulting inequity in the crown's position had Mr. Sabatine sought and been granted bail from the outset.
| Regime (in days) | Effective Sentence | Pre-plea Custody | Credit Given | Actual Sentence | Sentence to Release | Total Custody |
|---|---|---|---|---|---|---|
| Crown 1:1 | 365 | 185 | 185 | 180 | 120 | 305 |
| Bail | 365 | 365 | — | — | 240 | 240 |
| Defence 1.5:1 | 287 | 185 | 278 | 9 | 6 | 191 |
| Bail | 287 | 287 | — | — | 191 | 191 |
ISSUE
[27] The issue on this sentencing hearing is the quantum of the jail sentence to be imposed and what credit is to be given for pre-sentence custody.
QUANTUM OF SENTENCE
[28] The principles of sentencing are set out in s. 718 of the Code. Section 718 reads as follows:
- The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
- to denounce unlawful conduct;
- to deter the offender and other persons from committing offences;
- to separate offenders from society, where necessary;
- to assist in rehabilitating offenders;
- to provide reparations for harm done to victims or to the community; and
- to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.
[28] Section 718.1 of the Code further provides that any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. None of the aggravating factors set out in section 718.2 of the Code are present in this case, but that section also requires me to consider other sentencing principles. The relevant principle is set out as follows:
c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.
[29] A sentencing judge also must consider the general principle that sentences for successive similar offences ought to be progressively more severe, proceeding incrementally rather than by jumping from a relatively light sentence to one that is more punitive, to reflect the premise that any given sentence ought to be no harsher than is needed to accomplish the purposes of sentencing. However, this "jump principle" will be less relevant where, contrary to this case, rehabilitation is not a pressing factor in sentencing: see R. v. Ferrignon, [2007] O.J. No. 1883 at paragraphs 8-12 (S.C.).
[30] In this case, the sentencing principles of general deterrence, specific deterrence and rehabilitation are paramount in my view.
[31] The mitigating factors in this case are the remorse shown by Mr. Sabatine's guilty pleas, his desire to obtain treatment for his drug addiction, and the fact that Mr. Sabatine is a relatively youthful offender.
[32] The aggravating factors in this case are the number of offences, the fact that two offences involve breach of a court order, and the criminal record that includes numerous similar offences.
[33] Although the sentencing process is fact specific, it is not a science. The appropriate sentence for any given offender depends on the unique circumstances of the case before the court. I was not provided caselaw by counsel with respect to the issue of the appropriate quantum of sentence in this case, but all of the factors cited above lead me to conclude that the appropriate range of sentence is the range suggested by the individual positions of counsel, namely, nine to twelve months jail.
SECTION 719 OF THE CODE
[34] Prior to the enactment of Bill C-25, s. 719(3) of the Code provided that in determining the sentence to be imposed on an offender, the court "may" take into account any time spent in custody by the person as a result of the offence. The general practice of courts in London and in other jurisdictions was to grant an offender credit for pre-sentence custody on the basis of two days for each day served. The credit was based on "usually crowded jail conditions pending trial, the lack of rehabilitative programs and the impact on the offender's parole eligibility": R. v. Davis, [2007] O.J. No 2022 (C.A.) at paragraph 1. For these reasons, and the absence of educational or training programs, detention in pre-trial remand facilities like EMDC is known as "dead time", a description that has been recognized and accepted by the Court of Appeal of this province in R. v. Rezaie, [1996] O.J. No. 4468 (O.C.A.). Indeed, in R v. Monje, 2011 ONCA 1, [2011] O.J. No 1 (O.C.A.), commenting on Laskin J.'s description of it in Rezaie, LaForme J. described it as remaining "one of the most punitive forms of imprisonment in Canada" (at paragraph 18).
[35] On February 22, 2010, Bill C-25 came into force. Among other things, it amended s. 719 of the Code by amending ss. (3) and adding ss. (3.1) as follows:
(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).
[36] In summary, Parliament has provided by s. 719(3) that the general rule is that when taking into account pre-sentence custody, any credit against sentence is limited to 1:1. Notwithstanding the general rule, however, s. 719(3.1) provides that "if the circumstances justify it", the credit can be increased to 1.5:1 except where the offender has been detained primarily because of a previous conviction (s. 515(9.1)) or has contravened or is about to contravene a summons, appearance notice, promise to appear, or there are reasonable grounds to believe an offender has committed an indictable offence after a summons, appearance notice, promise to appear, undertaking or recognizance was issued, given or entered into (s. 524(4) and (8)).
[37] I pause to note that this legislation was intended to end the practice of granting an offender enhanced credit at a 2:1 or 3:1 ratio and to end the practice of remand offenders deliberately working the system to serve less actual jail time than he or she would have had they been serving the entirety of their sentence as a sentenced inmate.
DEFENCE SUBMISSIONS
[38] The Defence argued that the decision of Justice Green in R. v. Johnson, 2011 ONCJ 77, stands for the proposition that "the calculus of lost remission...constitutes 'circumstances' that 'justify' a 'maximum' enhanced credit ratio of 'one and one-half days for each day spent in custody' (paragraph 191), and I ought to apply that ruling in this case to the entire time Mr. Sabatine has spent in pre-sentence custody. He further argued that the conditions at EMDC also qualify as a circumstance that justifies enhanced credit.
[39] Specifically, counsel referred me to Justice Green's detailed Hansard review of the representations of Minister of Justice Nicholson and his senior policy advisor, David Daubney, during the House debates and Committee proceedings on Bill C-25. It is clear from their statements counsel argued, that the drafters of the legislation envisioned that the circumstances that would justify enhanced credit beyond the general rule would be fairly common and, in the case of lost remission, virtually universal.
CROWN SUBMISSIONS
[40] The Crown argued that the same Hansard material the Defence relies on from Johnson, indicates the clear intention of Parliament to deny enhanced credit to bail violators. Specifically, he noted that, the Minister of Justice, speaking in Parliament on April 20, 2009, stated:
...when it comes to offenders who have violated bail or who have been denied bail because of their criminal record, credit for time served would be strictly limited to a one to one ratio without exception (Johnson, paragraph. 103).
[41] The Crown argued further that Mr. Sabatine's guilty plea to the subsequent bail violation is tantamount to being detained under s. 524(8), and thus disqualifies Mr. Sabatine from consideration for enhanced credit pursuant to s. 719(3.1). It was the position of the Crown that this is true not only for the period of incarceration from the date of the arrest on the breach charge to today, but for the entirety of the pre-sentence custody including from September 26, 2011, to February 17, 2012.
ANALYSIS
[42] In order to grant enhanced credit in this case I must be satisfied that the circumstances justify it. As Justice Green noted in Johnson, "apart from the few statutory bars to enhanced credit, the only difference between detained offenders entitled to a maximum of 1:1 credit (s. 719(3)) and those entitled to a maximum of 1.5:1 credit (s. 719(3.1))) rests on the words "if the circumstances justify it" in the latter provision" (paragraph 100). I must, therefore, answer the question -- what is meant by the phrase "if the circumstances justify it"?
[43] Judges have grappled with this issue since the legislation came into force, and there is no direct appellate guidance yet about how the legislation is to be applied and in what circumstances. To find the meaning of that phrase Justice Green reviewed in some detail the explanations advanced by the government in the course of Parliamentary debate. I found Justice Green's review of this material to be detailed and very helpful. I have not reproduced it all here, but I have taken it all into account in reaching my decision even if I do not make specific reference to it by way of quotes herein. As Justice Green noted:
A comparison of the pertinent comments of the two primary government Spokespersons for Bill C-25 – the Minister of Justice and David Daubney, General Counsel to the Department of Justice – illustrates differing approaches taken to this phrase. The Minister, in the House of Commons and Committee, stressed that the "general rule" is one of 1:1 and that any departure from this norm would likely rest on more qualitative considerations such as oppressive remand conditions or their protraction through unconscionably long pre-trial delays for which the offender cannot be held responsible. His General Counsel, on the other hand, was of the view that the loss of remission and delays in parole eligibility are burdens that will be borne by all remand prisoners as a result of the Bill; as a result, these quantitative disadvantages alone will in virtually every case amount to circumstances justifying credit in excess of the 1:1 standard (paragraph 102 – the underlining is mine).
[44] Further, when Mr. Daubney appeared before the House Committee on June 1, 2009, he stated: "...courts trying to do justice will find that in many cases the circumstances do justify something between one to one and 1.5 to one." He went on to make clear that the drafters "deliberately didn't use [the more common phrase 'in exceptional circumstances"] because the circumstances won't be that exceptional: they'll be fairly common and, in the case of the parole loss and the remission loss will be universal". He reiterated that the loss of remission and parole eligibility "is going to apply universally to all these [remand] offenders now" (paragraph 106).
[45] I respectfully disagree with Justice Quigley's view in R. v. D.A.J., 2011 ONSC 5330, [2011] O.J. No. 4026 (SCJ) wherein he agrees with Justice Harris in LaRochelle, 2011 ONCJ 339, that Justice Green (in Johnson) "does not explain how it is possible for a sentencing judge to avoid the clear contrary intent of Parliament as evidenced in the general rule now enacted in section 719(3) that 1:1 credit is to be the general rule" (paragraph 69). Justice Quigley further notes that Justice Finnestad makes the same point in R. v. Abubeker, [2011] O.J. No. 2927 (at paragraphs 11, 14 and 15). In my opinion, however, Justice Green does so over and over again throughout the Johnson decision when he reviews the language of Minister Nicholson and Mr. Daubney who make it clear that the intention of the drafters of the legislation enacted by parliament was that many cases, if not most, would exceed the general rule.
[46] I further respectfully disagree with the following statement of Justice Harris in LaRochelle:
The clear intention of Parliament is that I not give enhanced credit for pre-sentence custody other than in exceptional circumstances (LaRochelle, paragraph 45; Bridgeman, paragraph 134).
[47] As noted above, the drafters of the legislation deliberately did not use the language commonly used in the Code, namely, "in exceptional circumstances." They opted instead for the broader phrase "if the circumstances justify it".
[48] As noted by Justice Cozens in R. v. Vittrekwa 2011 YKTC 64:
The words "if the circumstances justify it" must be read in a manner consistent with the rules governing statutory interpretation. A failure to consider the inability of a remand inmate to earn statutory remission would result in an interpretation that is inconsistent with these rules. As stated in R. v. Wust, 2000 SCC 18 at para. 34, "provisions in penal statutes, when ambiguous, should be interpreted in a manner favourable to the accused" (see also R. v. McIntosh, [1995] 1 S.C.R. 686, paras. 27 and 29; Johnson at para. 175).
[49] While it may be that ss. (3.1) is an 'exception' to the 'general rule' in ss. (3), it is not an exception that is limited to use in exceptional circumstances given the specific language used by the drafter's of the legislation. Indeed, as noted by Justice Patillo in R. v. Velez-Lau, 2011 ONSC 4805, [2011] O.J. No. 3710 (SCJ):
In my view, the words "if the circumstances justify it" in s. 719(3.1) give the court a wide discretion to grant credit for pre-sentence custody above the general rule of 1:1 up to a maximum of 1.5:1 except for the excluded categories of remanded offenders. That discretion must be exercised having regard to the circumstances of the offender being considered as established by the evidence. Those circumstances include but are not limited to the circumstances of the detention, the length of the custody, the conditions during that custody, the availability or unavailability of appropriate educational and rehabilitation programs and the effect of such custody on remission and parole eligibility (paragraph 36).
[50] In this case, the combination of the factors set out in Velez-Lau above (with the additional factor of the principle of totality) – namely:
- the fact that Mr Sabatine did not initially seek bail but chose to wait in custody pending the availability of drug treatment;
- the length of his initial pre-sentence custody (145 days);
- the conditions he faced while serving that pre-sentence custody;
- the limited rehabilitation programs at EMDC, and the loss of remission/parole eligibility -- permit enhanced credit to be granted for that entire time period, namely, 145 days. Thus, I grant Mr. Sabatine credit for 218 days of pre-sentence custody from September 26, 2011 to February 17, 2012.
[51] On the issue of loss of remission/parole eligibility generally, given the presumption of innocence an accused benefits from during pre-sentence custody and the language of Minister Nicholson and Mr. Daubney from Hansard as outlined above, I am of the view that it would be unfair to an accused to interpret the legislation as though Parliament intended to create inequality -- between those waiting to serve their sentence and those already serving their sentence -- by creating a regime that as a general rule gives enhanced credit to the latter and not the former. Fairness dictates that in most cases I ought to give enhanced credit to an eligible offender (an offender not precluded from consideration due to the excluded categories in ss. (3.1)) based on the loss of remission/parole eligibility. I agree with the plain-speaking Justice Glithero in R. v. Summers when he put it this way:
...if you're going to treat someone who is convicted in such a way as to allow them some time out of jail by way of the granting of parole, it seems to me it's rather inequitable to say to someone who has not yet gone to trial that you get no similar credit for the fact that you're sitting here day-after-day in jail. Those who differ could say, well, if the person doesn't like it, all they have to do is plead guilty and then they'll get the parole considerations that you've been talking about. But we really don't want people pleading guilty if they aren't guilty just to get some sort of a better shake on how the sentence is applied.
...it's absolutely unfair to treat someone who is presumed innocent more harshly than we would treat someone who has been found guilty. So, if we're going to give everybody that's found guilty a third off or as much as two-thirds off or even more if they're eligible for day parole, it simply is not fair to say to someone we presume to be innocent, you serve every day without any credit beyond the actual day-for-day ratio (page 19, line 28 to page 20, line 26).
[52] In Vittrekwa, Justice Cozens put it this way:
If the Truth In Sentencing Act is intended to be just that, i.e. truthful in its sentencing of offenders, then s. 719(3.1) must be interpreted in a manner that results in sentences that are fair, just, transparent and in accord with the principles of sentencing set out in ss. 718-718.2 (paragraph 31).
[53] I do not read Justice Green's decision in Johnson as saying enhanced credit would be granted to every eligible offender. In addition to the exceptions proscribed by s. 719(3.1), the circumstances that would persuade me not to give enhanced credit for loss of remission/parole eligibility are (but are not limited to) evidence of the following:
a) Offenders who have deliberately protracted their remand detention or otherwise endeavoured to manipulate the system (Johnson);
b) Offenders who are likely to remain incarcerated until their warrant expiry date or where the remand period at issue is of negligible value in light of the sentence imposed (Johnson); and I would add a third, namely,
c) Offenders who have by their own behaviour contributed to 'lockdowns' or otherwise contributed to the harsh conditions they complain of at the institution.
[54] In those cases (and perhaps others I have not anticipated here) the general rule set out in section 719(3) would apply.
[55] I turn now to the Crown's argument that Mr. Sabatine's guilty plea to the breach of recognizance charge is tantamount to a finding of a Justice (presiding at a bail hearing and detaining an accused) that he contravened his recognizance and thus it precludes Mr Sabatine from enhanced credit pursuant to section 719(3.1).
[56] Parliament's use of the word "detained" in ss. (3.1), seems to envision a show cause hearing (bail hearing) and a resulting detention order as opposed to the detention that results simply from the arrest of an accused on a breach charge. A person arrested on such a charge who chooses to have a bail hearing and is detained would have been found by a Justice to have contravened his bail order because Section 524(8) requires a Justice, before detaining an accused in those circumstances, to find either:
a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or
b) That there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance.
[57] This strict literal interpretation of the language of s. 719(3.1), however, produces the inequitable result that someone who is arrested on a breach of recognizance charge and does not apply for bail but remains in custody pending sentencing is not precluded from being considered for enhanced credit, but if they do apply for bail and are detained they are precluded from enhanced credit.
[58] I was not provided any authority for the Crown's position that a guilty plea to a breach of recognizance charge is tantamount to being 'detained' pursuant to s. 524(8), but I acknowledge there is some logic to part of this argument. If I am right in relying on the Hansard excerpts to show the intended meaning of the phrase "if the circumstances justify it", and if I accept, as I do, that Parliament's intention was to deny enhanced credit to bail violators (Johnson paragraph 103), then it defies common sense to allow enhanced credit to an accused who subsequently admits the bail violation by entering a guilty plea to a s. 145 charge but did not have a bail hearing subsequent to his arrest for that charge and, thus, has not been "detained pursuant to s. 524" as required by s. 719(3.1) which would preclude him from enhanced credit and is, therefore, otherwise eligible for consideration for enhanced credit.
[59] I am mindful that there are a myriad of reasons why an accused does not apply for bail, and I agree with Justice Cozens in Vittrekwa that often those who do not seek bail do not because they lack stable social connections:
These people are often the poor, marginalized, homeless, mentally distressed, unemployed and addicted (Vittrekwa, paragraph 41; see also Johnson, paragraph 20).
[60] That is why I would limit the operation of the s. 524 branch of s. 719(3.1) exclusions to cover those situations where an accused ultimately pleads guilty to a breach of Recognizance-type charge. I would not include in that group those who do not seek bail or consent to their detention following an arrest for a breach charge and never plead guilty to that charge. This distinction ought to calm the concerns raised by Justice Cozens in Vittrekwa (paragraphs 40 and 41) and Justice Green in Johnson (paragraph 20) that courts would be overtaxed by the number of offenders who would be inclined to run a judicial interim release hearing, in order to avoid the presumed denial of any enhanced credit.
[61] In my view, given the guilty plea to the breach of recognizance charge, the accused is not entitled to enhanced credit for the time period following the arrest for that charge on April 12, 2012, through the date of the guilty plea on April 30, 2012. Therefore, the accused will receive credit on a 1:1 basis for those 19 days.
[62] I do not accept, however, as the Crown argued, that the impact of the guilty plea extends back in time to the extent that it would preclude enhanced credit for the pre-sentence custody accumulated prior to being released on the bail order that was subsequently breached.
[63] The period of time from the guilty plea to this decision, however, is eligible for enhanced credit for the same reasons given for the time period prior to the guilty plea on February 17, 2012, and because this delay occurred at my request in order to hear further submissions from counsel on the issue of pre-sentence custody and in order to have sufficient time to craft these Reasons. If the accused had been sentenced on the date of the guilty plea (April 30, 2012) he would have been entitled to the usual post-sentence credit for remission/parole eligibility issues. Therefore, the accused will receive enhanced credit for the 21 days from May 1, 2012 to May 21, 2012.
SENTENCE IMPOSED
[64] For these reasons I grant enhanced credit on a 1.5:1 basis for the 145 days served from September 26, 2011, to February 17, 2012, for a total of 218 days. For the 19 days following the bail violation, from April 12, 2012 to April 30, 2012, I will not grant enhanced credit. For the 21 days following the guilty plea on April 30, 2012, and awaiting this decision, May 1, 2012 to May 21, 2012, I will give enhanced credit on the basis of 1.5:1 for a total of 31 days. Thus, the accused has served the equivalent of 268 days in custody (218 + 19 + 31 = 268) just two days shy of 9 months.
[65] Given the time the accused has already served, and my view that the appropriate range of sentence in this case is 9 to 12 months, in my view, due to the real prospect for rehabilitation in this case, the appropriate sentence is one that permits him to take advantage of the bed available for him at Westover on May 28, 2012. For that reason, I impose a further 9 days jail.
[66] On each of the first seven theft under charges we will show 145 days of pre-sentence custody credited on the basis of 1.5:1 or the equivalent of 218 days on each charge concurrent. On the charge of breach of recognizance we will show 19 days of pre-sentence custody credited on the basis of 1:1. On the theft under charge of April 12, 2012, we will note 21 days of pre-sentence custody on the basis of 1.5:1 or the equivalent of 31 days. On the charge of failing to attend court I impose 9 days jail.
ANCILLARY ORDERS
[67] The accused will also be placed on probation for a period of 12 months on the following terms:
Keep the peace and be of good behaviour;
Appear before the court when required to do so;
Notify the court or the probation officer in advance of any change of name, address, employment, or education;
Report to a probation office within 48 hours of release from Westover or within 48 hours of release from custody and thereafter when, and in the manner, directed by the probation officer;
Reside as directed by the probation officer and do not change that residence without the prior written permission of the probation officer;
Attend such drug assessment, counselling and programming as directed by the probation officer and successfully complete same;
Attend such other assessment, counselling and programming as directed by the probation officer and successfully complete same;
Provide the probation officer with consents to release information with respect to participation in any counselling or programming that has been directed to do pursuant to this probation order;
Not associate or communicate directly or indirectly with any person named in writing by the probation officer; and
Not attend at any place named in writing by the probation officer.
[68] I waive the victim fine surcharge given that the accused has been in custody for a lengthy period of time, is unemployed and in the near future will continue to be so as he spends time in drug treatment at Westover.
LeRoy J.
Released: May 22, 2012
SCHEDULE A: CASELAW CONSIDERED
Cases wherein enhanced credit was not granted:
Cases wherein partial enhanced credit was granted:
- R. v. Bridgeman, 2011 ONCJ 117
- R. v. D.A.J. 2011 ONSC 5330, [2011] O.J. No. 4026 (SCJ)
- R. v. LaRochelle, 2011 ONCJ 339
- R. v. Velez-Lau 2011 ONSC 4805, [2011] O.J. No 3710 (SCJ)
Cases wherein enhanced credit was granted:
- R. v. Hasson, 2011 ONCA 396
- R. v. Hasson, 2010 ONCJ 735
- R. v. J.B., 2011 BCPC 158
- R. v. Johnson, 2011 ONCJ 77
- R. v. Summers
- R. v. Vittrekwa, 2011 YKTC 64