Her Majesty the Queen v. Panday et al. Her Majesty the Queen v. Jalota [Indexed as: R. v. Panday]
87 O.R. (3d) 1
Court of Appeal for Ontario,
MacPherson, Sharpe, Simmons, Cronk and Gillese JJ.A.
September 11, 2007
Criminal law -- Sentencing -- Mandatory minimum sentence -- Period of strict pre-trial bail not constituting "punishment of imprisonment" -- Trial judge erring in giving credit for time spent on bail subject to strict conditions to reduce mandatory minimum sentence below statutory minimum -- Criminal Code, R.S.C. 1985, c. C-46, s. 346(1.1).
The accused were convicted of extortion with a firearm and other offences. Under s. 346(1.1) of the Criminal Code, a person who commits the offence of extortion with a firearm is subject to a "minimum punishment of imprisonment for a term of four years". Two of the accused spent 32 months under strict pre-trial bail terms and the third accused was subject to similar terms for 34 months. The trial judge gave each accused credit for time spent on bail subject to strict conditions and imposed sentences of less than four years' imprisonment. The Crown appealed.
Held, the appeal should be allowed.
Per MacPherson J.A. (Cronk and Gillese JJ.A. concurring): Strict bail does not constitute a "punishment of imprisoment" and thus does not qualify as a portion of a minimum sentence. It has been established that time spent on bail subject to strict conditions, especially house arrest, is a relevant mitigating factor which must be considered by the trial judge in determining the length of sentence. However, in imposing a minimum sentence, mitigating factors are irrelevant up to the minimum. Section 515 of the Code makes it clear that Parliament has created a clear dichotomy between pre-trial release, on the one hand, and pre-trial detention in custody on the other hand. Statutory words must be given their natural meaning, and the natural meaning of "release", "detention" and "custody" suggests that there is a fundamental difference between bail and jail. Section 719(3) of the Code, which provides that 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", makes the same distinction. In determining a sentence, including a minimum sentence, a sentencing judge can take into account "time spent in custody". However, time spent out of custody, i.e., while on bail, cannot be counted.
Per Sharpe J.A. (Simmons J.A. concurring) (dissenting): A sentencing judge may find that onerous pre-sentence bail conditions amount to a form of "punishment" that is the equivalent of "imprisonment". Where a sentencing judge is satisfied that time spent under strict conditions of pre- sentence bail is, in substance, the equivalent of a period of actual custody, the trial judge has the discretion to give some credit for that time towards the calculation of the mandatory minimum sentence. Legislation imposing mandatory minimum sentences does not oust all [page2 o]ther legal principles. It must, rather, be interpreted and applied in a manner that takes into account generally applicable rules and principles of sentencing that have not been specifically excluded from consideration by Parliament. The trial judge did not err in giving the accused some credit for the period during which they were subject to strict terms of bail.
APPEAL by the Crown from the sentences imposed by Benotto J., of the Superior Court of Justice, on the respondents Panday and Yue on Februrary 22, 2006, and on the respondent Jalota on April 20, 2006.
Cases referred to R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321, [2006] O.J. No. 555, 208 O.A.C. 324, 205 C.C.C. (3d) 488, 37 C.R. (6th) 46 (C.A.); R. v. Wust, [2000] 1 S.C.R. 455, [2000] S.C.J. No. 19, 2000 SCC 18, 184 D.L.R. (4th) 385, 252 N.R. 332, 143 C.C.C. (3d) 129, 32 C.R. (5th) 58 (sub nom. R. v. W. (L.W.)), consd Other cases referred to R. v. Fice, [2005] 1 S.C.R. 742, [2005] S.C.J. No. 30, 198 O.A.C. 146, 333 N.R. 243, 196 C.C.C. (3d) 97, 2005 SCC 32, 28 C.R. (6th) 201; R. v. McDonald (1998), 1998 13327 (ON CA), 40 O.R. (3d) 641, [1998] O.J. No. 2990, 54 C.R.R. (2d) 189, 127 C.C.C. (3d) 57, 17 C.R. (5th) 1 (C.A.); R. v. Morales, 1992 53 (SCC), [1992] 3 S.C.R. 711, [1992] S.C.J. No. 98, 144 N.R. 176, 12 C.R.R. (2d) 31, 77 C.C.C. (3d) 91, 17 C.R. (4th) 74; R. v. Pearson, 1992 52 (SCC), [1992] 3 S.C.R. 665, [1992] S.C.J. No. 99, 144 N.R. 243, 12 C.R.R. (2d) 1, 77 C.C.C. (3d) 124, 17 C.R. (4th) 1; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, 142 Man. R. (2d) 161, 182 D.L.R. (4th) 1, 249 N.R. 201, 212 W.A.C. 161, [2000] 4 W.W.R. 21, 140 C.C.C. (3d) 449, 49 M.V.R. (3d) 163, 30 C.R. (5th) 1 (sub nom. R. v. P. (J.K.D.)) Statutes referred to Bail Reform Act, R.S.C. 1970 (2nd Supp.), c. 2 Canadian Charter of Rights and Freedoms, s. 11(e) Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 128(1) [as am.] Criminal Code, R.S.C. 1985, c. C-46, ss. 95(2)(a) [as am.], 344(a), 346(1.1) [as am.], 465(1)(c) [as am.], 515 [as am.], 718.3(1) [as am.], 719 [as am.], 742.1 [as am.] Firearms Act, S.C. 1995, c. 39, ss. 139, 150 Authorities referred to Hawkins, William, Pleas of the Crown, 1716-1721, vol. II (London: Professional Books Ltd., 1973)
Gillian Roberts, for appellant. Richard Litkowski and Emily Morton, for respondent Arjun Panday. Christopher Hicks, for respondent Julian Yue. Sam Scratch, for respondent Maneesh Jalota.
MACPHERSON J.A. (CRONK and GILLESE JJ.A. concurring): --
A. Introduction
[1] There are several provisions in the Criminal Code, R.S.C. 1985, c. C-46 that impose minimum sentences for the commission [page3 ]of certain criminal offences. One such provision is s. 346(1.1), which provides:
346(1.1) Every person who commits extortion is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years...
(Emphasis added)
[2] It is not unusual in Canada for a person charged with a criminal offence, including a serious offence involving a firearm, to be granted bail pending his or her trial. This follows naturally from the presumption of innocence and s. 11(e) of the Canadian Charter of Rights and Freedoms, which provides that any person charged with an offence has the right "not to be denied bail without just cause".
[3] Sometimes conditions attached to the bail order impose serious restraints on the liberty of an accused person. The issue on these appeals is whether a period of strict pre-trial bail can be regarded as a "punishment of imprisonment" in the context of statutory minimum sentences so as to reduce the sentence below the statutory minimum if credit is given for pre-trial bail.
B. Facts
(1) The parties and the crimes
[4] The parties are agreed with respect to the underlying facts relevant to these appeals.
[5] The respondents, Arjun Panday, Julian Yue and Maneesh Jalota, were convicted of various serious criminal offences at the conclusion of a six-week jury trial before Benotto J. Mr. Panday was convicted of extortion with a firearm (two counts), forcible confinement, conspiracy to commit extortion with a firearm, and possession of a restricted firearm with ammunition. Mr. Yue was convicted of extortion with a firearm and conspiracy to commit extortion with a firearm. Mr. Jalota was convicted of extortion (two counts), forcible confinement (two counts), and conspiracy to commit extortion with a firearm.
[6] These offences all stemmed from the respondents' efforts to forcibly gain control of the business of promoting nightclub events within the South Asian community in Toronto. The offences relate to extortion efforts concerning three victims û- Vivek Malhotra, Selvin Mathew and Atif Mahmood. These men were business partners and well-known event promoters, servicing the South Asian market in Toronto. They were known as industry leaders. [page4 ]
[7] The relevant events occurred on two days, February 8 and 18, 2003.
(a) Events of February 8, 2003
[8] On the afternoon of Saturday, February 8, 2003, Mr. Malhotra was lured to Mr. Panday's place of employment, an office above a restaurant on Avenue Road, on the pretext of attending a meeting to discuss a sponsorship agreement.
[9] Shortly after arriving, Mr. Malhotra was surrounded by Mr. Panday, Mr. Yue, Mr. Jalota and several other parties. An uzi machine pistol was brandished by one of the men present. Mr. Panday took control of the meeting and informed Mr. Malhotra that he was being extorted. Mr. Malhotra was presented with a piece of paper listing the names and addresses of a number of Mr. Malhotra's family members. Mr. Malhotra was then forced at gunpoint to sign a contract indicating that he would pay 30 per cent of his gross revenues to Mr. Panday in exchange for vaguely described "security services". He was told that it would be in his and his family's best interest if he signed the contract. The uzi was placed against his head and body at various times.
[10] About an hour into this confrontation, Mr. Malhotra was required, at gunpoint, to call his partner, Mr. Mathew, and ask him to attend the meeting. When Mr. Mathew arrived, he was subjected to similar threats, also at gunpoint, and forced to sign an identical contract. The two men were then permitted to leave after being warned not to contact police or tell anyone. They had been held in the office for approximately three hours. Throughout, Mr. Panday did not handle the uzi himself, but he did the majority of the talking and directed the meeting. In her reasons for sentence, Benotto J. therefore referred to Mr. Panday as the "ringleader" of the scheme. Mr. Yue held the uzi for some period of time during the incident.
[11] After leaving the office, Mr. Malhotra and Mr. Mathew spent approximately 48 hours trying to decide what to do before ultimately contacting the police. An investigation was commenced and, in co-operation with the police, Mr. Malhotra and Mr. Mathew pretended to have quit the business (another option given to them by Mr. Panday in the meeting). They then allowed their third partner, Mr. Mahmood, to take over the promotion of the events that they had previously run.
(b) Events of February 18, 2003
[12] After the February 8, 2003 extortions, information was received from a woman who was a mutual friend of Mr. Panday [page5 ]and Mr. Mahmood. As a result of this information, it became known that Mr. Panday intended to also extort Mr. Mahmood, as he was seen to be taking over the business for Mr. Malhotra and Mr. Mathew. Indeed, Mr. Panday's plan was to surprise Mr. Mahmood at a Kelsey's restaurant in Scarborough when Mr. Mahmood went there to meet their mutual friend. Mr. Panday's plan was to then force Mr. Mahmood to sign a contract, similar to the contracts signed by Mr. Malhotra and Mr. Mathew, at gunpoint. This meeting was to take place at approximately 8 p.m. on February 18, 2003.
[13] Having learned of this plan, surveillance teams from the Toronto Police Service followed Mr. Panday as he left his home on the evening of February 18, 2003. Mr. Panday then met up with Mr. Yue, who had his own vehicle, and the men drove in tandem to the Kelsey's restaurant, arriving about 7:55 p.m. Also arriving at that time, in another vehicle, was Mr. Jalota. Police arrested all three parties at their cars in the Kelsey's parking lot. In the trunk of the vehicle being driven by Mr. Panday was a contract, which was identified at trial by Mr. Malhotra and Mr. Mathew as being virtually identical to the one they had been forced to sign on February 8, 2003. It was unsigned, but was dated February 18, 2003, and the listed parties were Arjun Panday and NGM Entertainment, which is the name of Mr. Mahmood's promotion company. Also located in the trunk of Mr. Panday's car was a .357 calibre revolver, along with ammunition. (2) The sentences
[14] After their arrests, the respondents spent a substantial amount of time on strict bail awaiting their trial -- 32 months for Messrs. Panday and Jalota and 34 months for Mr. Yue.
[15] After they were convicted, the respondents were subject to a minimum sentence of four years for extortion with a firearm, s. 346(1.1)(a), and conspiracy to commit extortion with a firearm, s. 465(1)(c). Mr. Panday was subject to an additional minimum sentence of one year for possession of a firearm, s. 95(2)(a).
[16] The Crown and the accused agreed that the minimum sentences -- and nothing more -- were appropriate (none of the accused had prior criminal records). They also agreed that credit be given, on the standard 2:1 basis, for pre-trial custody. The sentencing judge accepted these joint submissions.
[17] The only issue that divided the Crown and the accused was whether the sentencing judge, in imposing the minimum sentences she was required to impose, could give credit for the time spent on strict bail by the accused. Relying on her interpretation of the almost contemporaneous decision of this court in [page6 ][cf2]R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321, [2006] O.J. No. 555, 205 C.C.C. (3d) 488 (C.A.), the sentencing judge held that this option was open to her.
[18] The sentencing judge reasoned:
This issue was fully argued by counsel before and again after the release on February 14th of the R. v. Downes decision of the Court of Appeal. That decision extensively deals with the way the trial judge is to consider pre-trial house arrest.
At paragraph 37, Justice Rosenberg says:
In summary, credit for pre-trial bail conditions should be approached in the following manner:
-- Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.
-- As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.
-- The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.
-- The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
-- The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.
-- Where the offender asks the trial judge to take pre- sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions.
Justice Rosenberg does not qualify his reasons by excluding situations where there is a mandatory minimum sentence required.
In Downes, he referred to section 719, and said:
. . . there is no suggestion that this provision limits the right of a sentencing court to take into account, as a mitigating factor, time spent on pre-sentence bail. (pgh. 26)
Although Justice Rosenberg refers to pre-trial house arrest as a mitigating factor, he does give it special significance by requiring the trial judge to give reasons if credit is not given. Nowhere does he say it does not apply to a mandatory minimum situation.
Indeed, at paragraph 29, he says:
On the other hand, some of the same considerations that justify credit for pre-sentence custody apply to an offender who has spent a long time under house arrest. Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, [page7 ]inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration.
This analysis is not qualified. I thus do not accept the Crown's position that I have no discretion to give credit which would take the sentence below the mandatory sentence.
[19] In the result, the sentencing judge credited Mr. Panday with six months for 32 months of strict bail, Mr. Yue with seven months for 34 months of strict bail, and Mr. Jalota with five and a half months for 32 months of strict bail.
[20] The Crown appeals this component of the sentencing judge's decision. The Crown's position is that bail, even strict bail, is not a "punishment of imprisonment" and, therefore, cannot count as part of a minimum sentence.
C. Issue
[21] The only issue on these appeals is whether strict bail can constitute a "punishment of imprisonment" and thus qualify as a portion of a minimum sentence. D. Analysis
[22] The decision of this court in Downes stands for the proposition that a sentencing judge can give credit for the time spent under strict pre-trial bail conditions. The decision of the Supreme Court of Canada in R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, [2000] S.C.J. No. 19, 143 C.C.C. (3d) 129, stands for the proposition that credit towards a minimum sentence may be given for time spent in pre-trial custody. The question on these appeals is whether Downes plus Wust means that strict pre- sentence bail conditions constitute a "punishment of imprisonment" within the meaning of ss. 346(1.1)(a) and 95(2) (a) of the Criminal Code and, therefore, can serve as part of the minimum sentences established by these provisions.
[23] In my view, the answer to this question is "No".
(1) Downes is not determinative
[24] The sentencing judge relied almost exclusively on Downes in reaching her conclusion. With respect, she stretched Downes beyond both its language and its logic.
[25] Parliament has the clear jurisdiction to establish minimum sentences. Judges may not like such sentences, because they are perceived as harsh or because they reduce judicial discretion in the sentencing process. However, that is the effect of mandatory minimum sentences which, by definition, remove [page8 ]much of the discretion that sentencing judges otherwise possess. Speaking of the mandatory minimum sentence established by s. 344(a) of the Criminal Code, Rosenberg J.A. stated in R. v. McDonald (1998), 1998 13327 (ON CA), 40 O.R. (3d) 641, [1998] O.J. No. 2990, 127 C.C.C. (3d) 57 (C.A.), at para. 45: "This express language ousts the general discretion of the sentencing court under s. 718.3(1) to select the form and degree of punishment."
[26] The respondents submit that Downes is determinative of the issue on this appeal because "time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance" (para. 33).
[27] The problem with this analysis is that it overlooks the crucial fact that, by definition, sentencing judges are afforded less discretion when a minimum sentence is involved. The reality is that when a person is convicted of an offence that carries a minimum sentence, the sentencing judge does not engage in the usual balancing of aggravating and mitigating factors to arrive at an appropriate sentence. Indeed, the statutory minimum sentence specifically excludes such a balancing up to the point of the minimum sentence. [See Note 1 below]
[28] Downes, factually, is not a case dealing with minimum sentences. In Downes, the anchor in the reasoning is that credit for strict pre-trial bail is conceptually a mitigating factor: see paras. 33, 36 and 37. As such, this anchor does not speak to the central issue in these appeals because the anchor of minimum sentences is that, up to the minimum, mitigating factors are irrelevant.
[29] In any event, whether the respondents' interpretation of Downes is tight or tortured is beside the point. At bottom, these appeals must be determined on the basis of the wording of the relevant Criminal Code provisions.
(2) The Criminal Code provisions
[30] In my view, the starting point for the analysis in these appeals should be the Criminal Code provision that creates and defines bail:
515(1) Subject to this section, where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonable [page9 ] opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made and where the justice makes an order under any other provision of this section, the order shall refer only to the particular offence for which the accused was taken before the justice.
(2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released...
(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:...
(Emphasis added)
[31] My observation about the wording of this provision is that Parliament has created a clear dichotomy between, on the one hand, pre-trial release and, on the other hand, pre-trial detention in custody. Put bluntly, bail is not jail. The wording of s. 515 makes it clear that bail is what an accused person seeks in order to stay out of jail.
[32] In saying this, I do not suggest that bail is not a restraint on the liberty of an accused person. It is a restraint and, where there are strict bail conditions, it can be a serious restraint. However, statutory words must be given their natural meaning, and the natural meaning of "release", "detention" and "custody" suggests that there is a fundamental difference between bail and jail. The natural meaning of these words -- known at a practical, common sense level by all accused persons who seek bail -- is that the pith and substance of bail is liberty, whereas the essence of jail is a profound loss of liberty.
[33] The second and, in my view, crucial Criminal Code provision that needs to be considered is s. 719:
719(1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.
(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.
[34] On a plain meaning of s. 719(3), time spent in custody may be taken into account by a sentencing judge. As explained by Arbour J. in Wust at para. 41: "Therefore, while pre-trial detention is not intended as punishment when it is imposed, it is, in effect, deemed part of the punishment following the offender's conviction, by the operation of s. 719(3)."
[35] It is important to note that Arbour J. used the word "detention" in this explanation. This is the same word employed in s. 515 [page10 ]to describe a person who does not obtain bail; such a person is subject to "detention. . . in custody". The implication, in my view, is clear: just as s. 515 creates a clear dichotomy between release and detention in custody, so too does s. 719(3) make the same distinction. In determining a sentence, including a minimum sentence, a sentencing judge can take into account "time spent in custody" (s. 719(3)) or "detention" (Wust); however, time spent out of custody or not in detention -- i.e., bail -- cannot be counted.
[36] This interpretation is supported by a review of the legislative history relating to s. 719(3) which was enacted as part of the Bail Reform Act, R.S.C. 1970 (2nd Supp.), c. 2. In McDonald, Rosenberg J.A. referred to some of this legislative history at paras. 36-37:
During House of Commons Debates (February 5, 1971) at second reading of Bill C-218, Amendment of Provisions of the Criminal Code relating to Arrest and Bail, the Minister of Justice, John Turner, stated clearly the government's intention in reference to the new provision at p. 3118:
Generally speaking, the courts in deciding what sentence to impose on a person convicted of an offence take into account the time he has spent in custody awaiting trial. However, under the present Criminal Code, a sentence commences only when it is imposed, and the court's hands are tied in those cases where a minimum term of imprisonment must be imposed. In such cases, therefore, the court is bound to impose not less than the minimum sentence even though the convicted person may have been in custody awaiting trial for a period in excess of the minimum sentence. The new version of the bill would permit the court, in a proper case, to take this time into account in imposing sentence.
(Emphasis added)
This was also the understanding of John Scollin. I find his views of particular assistance since he was with the Department of Justice at the time the Bail Reform Act was introduced and testified before the Standing Committee on Justice and Legal Affairs. In his text, The Bail Reform Act: An Analysis of Amendments to the Criminal Code Related to Bail and Arrest (Toronto: Carswell, 1972) at p. 91, he summarizes the effect of the new provision:
This subsection gives statutory sanction to the practice of the courts in taking into account in determining sentence the time that an accused has already spent in custody as a result of the offence. An important extension, however, is that the court will now be able to take such time into account even in the case where there is a minimum sentence which would otherwise not commence until it is imposed.
(Emphasis in original)
[37] In Wust, Arbour J. approved of Rosenberg J.A.'s review in McDonald of the legislative history relating to s. 719(3). She stated, at para. 31:
As was pointed out by Rosenberg J.A. in McDonald at p. 73, Parliament enacted the forerunner to s. 719(3) of the Criminal Code as part of the [page11 ]Bail Reform Act, R.S.C. 1970, c. 2 (2nd Supp.), for the very specific purpose of ensuring that the well-established practice of sentencing judges to give credit for time served while computing a sentence would be available even to reduce a sentence below the minimum fixed by law.
[38] In my view, the words used by the Minister of Justice, a senior lawyer in the Department of Justice, and Arbour J. -- "time he has spent in custody awaiting trial", "the time that an accused has already spent in custody as a result of the offence", "the well-established practice of sentencing judges to give credit for time served" -- all refer, in their ordinary and well-known meaning, to incarceration in a jail, not to release on bail.
[39] It follows from this analysis of the wording of ss. 515 and 719(3) of the Criminal Code that strict bail does not constitute a "punishment of imprisonment" within the meaning of ss. 346(1.1)(a) and 95(2)(a) of the Code (and other similar minimum sentence provisions). Indeed, it seems to me that this basic point was clearly recognized in Downes itself at para. 29: "House arrest is a form of punishment, albeit of a different character than actual incarceration."
[40] I need to refer to one other provision of the Criminal Code. One of the respondents' principal arguments is that at a factual level strict bail can closely resemble a conditional sentence; the core of both types of restraint on liberty is often some kind of "house arrest" regime. Since Wust stands for the proposition that credit towards a minimum sentence can be given for time spent in pre-trial custody, and since conditional sentences constitute imprisonment (see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, 140 C.C.C. (3d) 449, at para. 29), it follows, the respondents submit, that strict bail should also be regarded as a form of imprisonment.
[41] Accepting the factual similarities between strict bail and some conditional sentences, in my view the extension sought by the respondents must be rejected because of the express wording of s. 742.1 of the Code, which provides:
742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court
(a) imposes a sentence of imprisonment of less than two years, and
(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,
the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditional sentence order made under section 742.3.
(Emphasis added) [page12 ]
[42] The respondents are ineligible for consideration for conditional sentences for two reasons: they are subject to mandatory minimum sentences and their sentences exceed two years less a day. In this situation, mandated by the clear wording of s. 742.1, it would make no sense to permit the respondents to overcome (admittedly, only partially) those clear constraints through the back door of giving credit for strict bail. In short, if a conditional sentence cannot be imposed in the case of a minimum sentence, it would be illogical and inconsistent to give credit for time spent out of custody under strict bail conditions, which is akin to a conditional sentence, so as to avoid the imposition of a minimum sentence declared by Parliament.
(3) Summary
[43] Parliament is entitled to prescribe "different degrees or kinds of punishments in respect of an offence": s. 718.3(1) of the Code. Parliament has established minimum sentences for certain offences. In these appeals, the relevant Code provisions, ss. 346(1.1)(a) and 95(2)(a), prescribe both the degree (four years and one year) and kind ("imprisonment") of punishment.
[44] The issue on these appeals is whether strict bail can constitute a "punishment of imprisonment" and, therefore, count towards the minimum sentence that must be imposed on a particular offender. In my view, based on a proper interpretation of ss. 515, 719(3) and 742.1 of the Criminal Code, the answer to this question is "No". While strict bail has a punitive aspect, it is not equivalent to actual incarceration.
E. Disposition
[45] I would grant leave to appeal, allow the appeals, and vary the sentences of the respondents by requiring that they serve their entire sentences in custody.
[46] SHARPE J.A. (SIMMONS J.A. concurring) (dissenting): -- The issue to be resolved on these Crown appeals against sentence is whether, when sentencing the respondents for offences attracting minimum punishments, the trial judge erred by giving them credit on approximately a one-for-five basis for the time they had spent under strict pre-sentence bail conditions amounting to house arrest.
[47] In R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, [2000] S.C.J. No. 19, 143 C.C.C. (3d) 129, the Supreme Court of Canada held that credit towards a minimum sentence may be given for time served in pre-sentence custody. In R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321, [2006] O.J. No. 555, 205 C.C.C. (3d) 488 (C.A.), [page13 ]this court held that credit may be given for strict pre- sentence bail conditions against a sentence for which there is no minimum. The question in this case is thus whether the Downes principle falls within the ambit of Wust.
[48] For the following reasons, I respectfully disagree with my colleague MacPherson J.A. and conclude that where a trial judge is satisfied that time spent under strict conditions of pre-sentence bail is, in substance, the equivalent of a period of actual custody, the trial judge does have the discretion to give some credit for that time towards the calculation of the mandatory minimum sentence.
Facts
[49] After a six-week jury trial, the respondents were convicted of various offences, all of which stemmed from their use of force and weapons in an attempt to gain control of the promotion of nightclub events aimed at Toronto's South Asian community. The respondents lured three victims, who were well- known businessmen engaged in the promotion of entertainment events, to a meeting where an uzi machine pistol was brandished. The respondents were arrested as a result of police surveillance prior to a second planned meeting and were found to be in possession of a .357 calibre revolver and ammunition. All three respondents were convicted of firearms offences attracting mandatory minimum sentences.
Reasons for Sentence
[50] The respondents were in their early twenties and had no prior criminal records. They each spent some time in pre- sentence custody and were then released on conditions amounting to house arrest. Throughout the entire 32 month period, Panday could not leave home for any purpose unless accompanied by a surety. Jalota spent 32-months under house arrest but was permitted to leave his home if accompanied by one of his parents; his bail conditions also contained exceptions for attending school, employment, medical emergencies and religious observance. Yue's conditions were varied after one year to permit him to go to and from employment or education without his surety. He spent a total of 34 months under strict bail conditions.
[51] The Crown and defence agreed on the appropriate sentence, namely, the mandatory minimum sentences of five years for Panday and four years for Yue and Jalota, such sentences to be served concurrently with the sentences for the other related offences. The Crown also agreed that each respondent should [page14 ]receive two-for-one credit for time spent in pre- sentence custody. However, the Crown resisted the respondents' submission that they should also receive some credit for the time they had spent on pre-sentence house arrest bail. The trial judge disagreed with the Crown and, applying Downes, gave the respondents the following additional credit: Panday received six months credit for 32 months on house arrest bail; Yue received seven months credit for 34 months on house arrest bail; and Jalota received five and one-half months credit for 32 months on house arrest bail.
Issue
Did the trial judge err by giving the respondents credit towards the mandatory minimum sentence for time spent under pre-sentence house arrest bail conditions?
Analysis
[52] Panday was convicted of extortion with a firearm and conspiracy to commit extortion with a firearm and accordingly was liable "to a minimum punishment of imprisonment for a term of four years": ss. 346 (1.1)(a), 465(1)(c). Yue and Jalota were liable to the same penalty on their conviction for conspiracy to commit extortion with a firearm: s. 465(1)(c). Panday was liable to a further "minimum punishment of imprisonment for a term of one year" for his conviction for possession of a firearm: s. 95(2)(a).
- Interpretive principles to be applied in sentencing cases
[53] Ordinarily, a trial judge has a wide discretion to impose what he or she considers to be a fit sentence. Mandatory minimum sentences are the exception, not the rule, in Canadian law. That said, I entirely agree that when Parliament decides to specify a mandatory minimum sentence, provided the mandatory minimum sentence does not violate the Canadian Charter of Rights and Freedoms, the trial judge must impose the sentence Parliament has deemed to be appropriate for the offence. However, there are few, if any, legal rules or statutory provisions that can be applied simply and mechanically without due consideration of more general legal rules and principles. This applies with equal force to mandatory minimum sentences. Legislation imposing mandatory minimum sentences does not oust all other legal principles. It must, rather, be interpreted and applied in a manner that takes into account generally applicable rules and principles of sentencing that have not been specifically excluded from consideration by Parliament.
[54] It is well established that time spent in custody before trial will ordinarily be counted towards sentence. This principle [page15 ]also applies even where the result is to reduce the length of the sentence imposed after conviction to a period that is shorter than the minimum sentence. In other words, a trial judge does not violate Parliament's direction regarding a minimum sentence by giving credit for time already served in pre-sentence custody and imposing a sentence that is shorter than the mandatory minimum. The rationale for this result is that the offender will still have suffered a penalty equivalent to the mandatory minimum: see Wust, supra, at para. 41; R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742, [2005] S.C.J. No. 30, 196 C.C.C. (3d) 97, at para. 18.
[55] It is also now an established principle of sentencing that the trial judge must consider giving some credit for time spent under strict pre-sentence bail conditions: see Downes. The Downes principle, like that regarding pre-sentence custody, emerges from cases involving ordinary sentences. For reasons I will endeavour to explain more fully below, I see no reason why the Downes principle should not also apply to mandatory minimum sentences.
[56] I take as my starting point Wust, supra, where Arbour J. described the approach that should be taken to the interpretation of minimum sentences [at paras. 18, 21 and 22]:
Mandatory minimum sentences are not the norm in this country, and they depart from the general principles of sentencing expressed in the Code, in the case law, and in the literature on sentencing. In particular, they often detract from what Parliament has expressed as the fundamental principle of sentencing in s. 718.1 of the Code: the principle of proportionality.
. . . It is a well-established principle of the criminal justice system that judges must strive to impose a sentence tailored to the individual case.
Consequently, it is important to interpret legislation which deals, directly and indirectly, with mandatory minimum sentences, in a manner that is consistent with general principles of sentencing, and that does not offend the integrity of the criminal justice system.
(Emphasis added; citations omitted)
[57] Sections 95(2)(a) and 346(1.1)(a) were introduced in 1995 as part of the Firearms Act, S.C. 1995, c. 39, ss. 139, 150, a package of Criminal Code amendments imposing mandatory minimum sentences for crimes committed with a firearm. The minimum sentence at issue in Wust was introduced into the Code as part of the same package. Arbour J., writing for an unanimous court in Wust observed, at para. 27, that when enacting these minimum sentences for firearms offences, Parliament did not intend "to alter the general administration of sentences in a way that would distinguish the new mandatory minimums from other sentences". Accordingly, Arbour J. held that Parliament did not intend to [page16 ]remove minimum punishment offences from the general scheme governing the imposition and administration of sentences, which would take into account pre-sentence custody as a matter of course.
[58] Arbour J. expressly approved, at para. 34, of five interpretive principles identified by Rosenberg J.A. in R. v. McDonald (1998), 1998 13327 (ON CA), 40 O.R. (3d) 641, [1998] O.J. No. 2990, 127 C.C.C. (3d) 57 (C.A.), a case that also dealt with credit for pre-sentence custody in relation to a minimum sentence:
(1) where a penal statute is ambiguous, the ambiguity must be resolved in favour of the accused;
(2) statutes must be interpreted to avoid conflict;
(3) statutes must be interpreted to avoid absurd results;
(4) reference may be made to other provisions in the same statute to interpret statutory provisions in context; and
(5) reference may be made to Charter values where a statute is capable of more than one interpretation.
[59] In my view, the application of these principles to the issue before us yields a result favourable to the respondents on these appeals.
- The interpretive question at issue on these appeals
[60] The precise issue of statutory interpretation to be addressed is this: can strict bail conditions, such as house arrest, constitute "punishment of imprisonment" within the meaning of ss. 346(1.1)(a) and 95(2)(a) of the Code?
[61] Sections 346(1.1)(a) and 95(2)(a) require offenders to be sentenced to a "minimum punishment of imprisonment" of four years and one year, respectively. It follows that pre-sentence house arrest can only be taken into account in relation to a minimum sentence to the extent that it constitutes the legal equivalent of "punishment of imprisonment".
[62] I will first review the case law that pertains to this issue and that supports the position of the respondents. I will then consider the provisions of the Criminal Code said by the Crown to point in the opposite direction.
(i) Case law supporting an understanding of strict bail conditions as "punishment of imprisonment"
[63] MacPherson J.A. writes at para. 31 of his reasons: "Put simply bail is not jail" and he proceeds to treat them as if they were [page17 ]opposites. I disagree with my colleague's classification. Bail and jail are different points on a continuum between complete freedom and total deprivation of liberty. Strict conditions amounting to house arrest significantly constrain liberty and push bail towards the total deprivation of liberty end of the continuum. I therefore cannot agree with my colleague's statement at para. 32 that "the pith and substance of bail is liberty". For the following reasons, I conclude that house arrest bail of the kind at issue on these appeals amounts to a form of state-imposed punishment sufficiently close to total deprivation of liberty to have afforded the trial judge the discretion to conclude that it amounted to the equivalent of "punishment of imprisonment" on a one-to-five basis.
[64] In Downes, Rosenberg J.A. held, at para. 29, that house arrest bail constitutes a form of "punishment":
Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditional sentence under s. 742.1 of the Criminal Code. . . . [I]n R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, 140 C.C.C. (3d) 449, at para. 103, Lamer C.J.C. identified house arrest as a form of punishment in the conditional sentence context:
First, the conditions should have a punitive aspect. Indeed, the need for punitive conditions is the reason why a probationary sentence was rejected and a sentence of imprisonment of less than two years imposed. As stated above, conditions such as house arrest should be the norm, not the exception. This means that the offender should be confined to his or her home except when working, attending school, or fulfilling other conditions of his or her sentence, e.g. community service, meeting with the supervisor, or participating in treatment programs. Of course, there will need to be exceptions for medical emergencies, religious observance, and the like.
Despite its punitive aspects, the offender receives no credit towards parole eligibility for time spent on pre-sentence house arrest.
(Emphasis added)
[65] Rosenberg J.A. laid down, at para. 37, the following summary of how a trial judge should approach the question of credit for pre-sentence bail conditions:
-- Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.
-- As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.
-- The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle. [page18 ]
-- The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
-- The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.
-- Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.
It is not disputed that these conditions were satisfied in the case of each of the respondents and that their strict house arrest bail conditions qualified for credit under the Downes principle.
[66] Wust holds, at para. 24, that "imprisonment" does not necessarily mean incarceration in a penitentiary. Imprisonment notionally includes both parole conditions and statutory remission, which, "even where the term of imprisonment is a statutory mandatory minimum" are deemed to be "a continuation of the offender's sentence of incarceration": Wust, at paras. 25 and 41, referring to the Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 128(1). It will also include pre- sentence custody, which is "deemed punishment following conviction" (emphasis in original): Wust, at para. 41.
[67] Pre-sentence house arrest bail corresponds closely with the terms of conditional sentences, which have been held to amount to a form of imprisonment. In Proulx, supra, at para. 29, Lamer C.J.C. wrote:
The conditional sentence is defined in the Code as a sentence of imprisonment. The heading of s. 742 reads "Conditional Sentence of Imprisonment". Furthermore, s. 742.1(a) requires the court to impose a sentence of imprisonment of less than two years before considering whether the sentence can be served in the community subject to the appropriate conditions. Parliament intended imprisonment, in the form of incarceration, to be more punitive than probation, as it is far more restrictive of the offender's liberty. Since a conditional sentence is, at least notionally, a sentence of imprisonment, it follows that it too should be interpreted as more punitive than probation.
(Emphasis added)
[68] For centuries, bail has been regarded as a form of custody: see William Hawkins, Pleas of the Crown, 1716-1721, vol. II (London: Professional Books Ltd., 1973) at 88:
[A] Man's Bail are looked upon as his Gaolers of his own choosing; and that Person bailed is in the Eye of the Law for many Purposes, esteemed to be as [page19 ]much in the Prison of the Court by which he is bailed, as if he were in the actual Custody of the proper Gaoler.
[69] In my view, these authorities provide ample support for the proposition that a trial judge may find that onerous pre- sentence bail conditions amount to a form of "punishment" that is the equivalent of "imprisonment".
[70] The Crown argues that because Rosenberg J.A. characterized strict bail conditions as a "mitigating circumstance" in Downes, at para. 33, it follows that time served under such conditions cannot serve to reduce the length of a mandatory minimum sentence. The Crown argues that this characterization, when read in conjunction with R. v. Fice, supra, stating at para. 18, that "time spent in pre-sentence custody is part of the total punishment imposed; it is not a mitigating factor that can affect the range of sentence", requires us to exclude pre-sentence house arrest as forming part of the total punishment of imprisonment to reduce the time to be served.
[71] I am not persuaded that the characterization in Downes of strict bail conditions as a "mitigating factor" is determinative of the issue we are considering here. In my view, the word "mitigating" in this context means no more than capable of reducing. Strict bail conditions are state-imposed restrictions on liberty, a factor entirely unrelated to the consideration of the usual mitigating factors that relate to the subjective personal circumstances and characteristics of the offender.
[72] I note that at several points in his reasons, Rosenberg J.A. refers to the "credit" that is to be given for strict bail conditions, a phrase that is inapt for the usual mitigating factors of age, lack of record, demonstration of remorse or reparation of harm and the like. In my view, the characterization in Downes of strict pre-sentence bail conditions as "mitigating circumstances" merely reflects the fact that no fixed or a priori formula can be used to determine the precise credit to be given:
Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. In the end, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge. That factor must be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a given case.
(Emphasis added)
[73] The Crown reads the last sentence of the quotation conjunctively, making house arrest one mitigating factor among others. I prefer to read it disjunctively. House arrest is set apart as categorically different from other traditional mitigating factors. This interpretation is supported by the use of the word "credit", which suggests that strict pre-sentence bail conditions [page20 ]are conceptually more akin to pre- sentence custody than to mitigating factors that may be taken into account to reduce the sentence, but for which no "credit" is given.
(ii) Has Parliament excluded consideration of strict bail conditions in relation to mandatory minimum sentences?
[74] I now turn to consider the Crown's submission that Parliament has indicated its intention to exclude consideration of pre-sentence bail conditions in the calculation of mandatory minimum sentences.
[75] The Crown relies on s. 719 for the proposition that while pre-sentence custody is to be taken into account in relation to a mandatory minimum sentence, pre-sentence house arrest bail does not so qualify:
Punishment Generally
719(1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.
(2) Any time during which a convicted person is unlawfully at large or is lawfully at large on interim release granted pursuant to any provision of this Act does not count as part of any term of imprisonment imposed on the person.
(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.
[76] In oral argument, counsel for the Crown quite properly abandoned the submission that s. 719(2) makes it clear that out-of-custody pre-sentence time "does not count as part of any term of imprisonment imposed on the person". Section 719(2) applies to time spent by convicted persons at large on interim release and is directed to the corrections officials charged with the duty of calculating the length of the sentence, not the sentencing judge charged with determining the appropriate sentence. This provision is not relevant at the sentencing stage: see McDonald, supra, at para. 25.
[77] I do not accept the submission that by omitting any reference to out-of-custody pre-sentence time in s. 719(3), Parliament must be taken to have excluded consideration of strict pre-trial bail conditions when imposing sentence. The legislative history and intention of s. 719(3) was reviewed in McDonald and affirmed in Wust. In McDonald, Rosenberg J.A. held, at paras. 23 and 26, that s. 719(3) was not "a mere codification of a principle of sentencing" allowing a court to reduce the term of imprisonment it would otherwise impose by the period of imprisonment already served, but a provision giving a court a substantive [page21 ]power" to give credit for time served in pre-sentence custody against a mandatory minimum sentence. He supported this interpretation by examining the legislative history of s. 719(3), which was enacted as part of the Bail Reform Act in 1970, at paras. 28-37. I reproduce paras. 36 and 37:
During House of Commons Debates (February 5, 1971) at second reading of Bill C-218, Amendment of Provisions of the Criminal Code relating to Arrest and Bail, the Minister of Justice, John Turner, stated clearly the government's intention in reference to the new provision at p. 3118:
Generally speaking, the courts in deciding what sentence to impose on a person convicted of an offence take into account the time he has spent in custody awaiting trial. However, under the present Criminal Code, a sentence commences only when it is imposed, and the court's hands are tied in those cases where a minimum term of imprisonment must be imposed. In such cases, therefore, the court is bound to impose not less than the minimum sentence even though the convicted person may have been in custody awaiting trial for a period in excess of the minimum sentence. The new version of the bill would permit the court, in a proper case, to take this time into account in imposing sentence.
(Emphasis added)
This was also the understanding of John Scollin. I find his views of particular assistance since he was with the Department of Justice at the time the Bail Reform Act was introduced and testified before the Standing Committee on Justice and Legal Affairs. In his text, The Bail Reform Act: An Analysis of Amendments to the Criminal Code Related to Bail and Arrest (Toronto: Carswell, 1972) at p. 91, he summarizes the effect of the new provision:
This subsection gives statutory sanction to the practice of the courts in taking into account in determining sentence the time that an accused has already spent in custody as a result of the offence. An important extension, however, is that the court will now be able to take such time into account even in the case where there is a minimum sentence which would otherwise not commence until it is imposed.
(Emphasis in original)
[78] Rosenberg J.A.'s explanation of the legislative intent behind s. 719(3) was approved by the Supreme Court of Canada in Wust, at para. 31.
[79] The Crown argues that the limitation of s. 719(3) to "time spent in custody" indicates Parliament's intent that strict pre-sentence bail conditions should not be taken into account by a trial judge. In my view, that would represent a strained reading of s. 719(3), especially in light of the Wust principle that legislation imposing mandatory minimum sentences must be interpreted as conforming to the general scheme for imposing and administering sentences unless it is unreasonable to do so: see para. 22.
[80] The legislative history demonstrates that when s. 719(3) was enacted, Parliament was concerned about the unfairness [page22 ]that would result if credit for pre-sentence custody was not given for mandatory minimum offences. There is nothing to suggest that when enacting remedial legislation to remedy what was perceived to be one injustice, Parliament intended to preclude judges from taking into account other factors that could cause unfairness and certainly nothing to indicate that Parliament had strict pre-sentence bail conditions or house arrest -- a relatively recent phenomenon -- in mind.
[81] In my view, s. 719(3) is properly conceived of as a precise legislative response to the specific issue of the unfairness that would result if pre-sentence custody was not taken into account in determining what punishment the offender had already received from the state. The provision is not sufficiently explicit to indicate that Parliament had the positive intention to preclude trial judges from taking into account strict pre-sentence bail conditions. At best, the provision is ambiguous and any ambiguity must be resolved in favour of the liberty of the accused.
[82] The Crown also relies upon the "degree or kind" provision in s. 718.3(1):
Punishment Generally
718.3(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.
[83] The Crown submits that where Parliament requires that a mandatory minimum sentence be imposed, Parliament has deliberately limited the "degree or kind" of punishment that may be imposed and effectively removed any discretion to give credit for pre-sentence bail conditions that do not amount to actual custody.
[84] In a related submission, the Crown relies on s. 742.1, delineating the offences for which a conditional sentence may be imposed:
Conditional Sentence of Imprisonment
742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court
(a) imposes a sentence of imprisonment of less than two years, and
(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,
the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditional sentence order made under section 742.3. [page23 ]
[85] The Crown submits that because a conditional sentence cannot be imposed for offences that are subject to a mandatory minimum sentence, even where the period remaining to be served after pre-sentence custody is taken into account is less than two years (see Fice, supra), house arrest bail cannot be considered to be a form of "punishment of imprisonment".
[86] I disagree with this submission. Giving credit for house arrest bail rests upon a judicial determination that the offender has served the legal equivalent of a "punishment of imprisonment" for the period of time for which credit is given. This judicial recognition of credit for a punishment that has already been inflicted on the offender does not conflict with s. 718.3 nor does it violate the statutory preclusion against the imposition of a conditional sentence that will take effect in the future in relation to an offence attracting a mandatory minimum sentence.
[87] I see nothing in Fice that requires a different interpretation. As I read that judgment, the determinative point was that the availability of a conditional sentence on a going-forward basis is keyed to the gravity of the offence, a factor only tangentially related to pre-trial custody. At para. 24 of Fice, Bastarache J. stated, "In my view, spending time in custody pre-sentence in no way changes the gravity of the offence, the degree of responsibility of the offender, or, as it was put in Proulx, the 'type of offender'. Thus, it is clear that time spent in pre-sentence custody is not a mitigating factor." Onerous pre-sentence bail conditions, as is recognized in Downes, do not change the gravity of the offence, the degree of responsibility of the offender or the type of offender. They do, however, constitute a form of state-imposed punishment akin to imprisonment, and it is that feature that is pertinent to the issue of credit upon sentencing.
[88] To the extent that there is any doubt on these points of statutory construction and the authorities to which I have referred fail to establish conclusively that pre-sentence house arrest amounts to a form of "punishment of imprisonment", it seems to me that at best these Code provisions are ambiguous. This means that the interpretive principle requiring statutory ambiguities to be construed in favour of the accused comes into play.
(iii) Charter values
[89] Finally, to the extent that further support is required for an interpretation favourable to the accused, I agree with the respondents that permitting the trial judge to consider pre-sentence bail conditions in relation to a mandatory minimum sentence would better enhance Charter values. In McDonald, Rosenberg J.A. observed, at para. 63, that pre-sentence custody [page24 ]implicates Charter values in an important way: while pre-sentence custody or onerous bail conditions are consistent with the principles of fundamental justice and the presumption of innocence (see R. v. Pearson, 1992 52 (SCC), [1992] 3 S.C.R. 665, [1992] S.C.J. No. 99, 77 C.C.C. (3d) 124; and R. v. Morales, 1992 53 (SCC), [1992] 3 S.C.R. 711, [1992] S.C.J. No. 98, 77 C.C.C. (3d) 91), "pre-trial custody falls more heavily upon those persons who assert their innocence and insist on exercising their constitutional rights to require the Crown to prove the case beyond a reasonable doubt before a jury of their peers". Thus, Rosenberg J.A. concludes at para. 64, the court should "adopt an interpretation [of the Code provisions] that does not impose upon accused persons the added burden that the additional time in custody necessitated by the exercise of their constitutional rights will not even count against the sentence if they are eventually convicted". This direction is approved of in Wust, at para. 34. Although pre-sentence custody is clearly more onerous than house arrest bail, the distinction is one of degree, not kind. Rosenberg J.A.'s direction in McDonald is thus apposite here.
Conclusion
[90] Applying general principles of sentencing law, the trial judge found on the facts that 32 to 34 months of pre-sentence house arrest amounted to the equivalent of five and one-half to seven months of actual custody. In my view, the statutory language is at least reasonably capable of supporting the trial judge's interpretation and it therefore follows that the trial judge's interpretation favouring the liberty of the accused should be maintained. For the reasons I have given, I would thus grant the Crown's applications for leave to appeal against sentence but dismiss the appeals.
Appeal allowed.
Notes ----------------
Note 1: Of course, the balancing of aggravating and mitigating factors remains central to a sentencing judge's consideration of possible sentences above the statutory minimum. In this context, the Downes analysis of strict pre-trial bail is relevant and important.