Her Majesty the Queen v. Summers
[Indexed as: R. v. Summers]
Ontario Reports
Court of Appeal for Ontario,
Cronk, Pepall and Tulloch JJ.A.
March 12, 2013
114 O.R. (3d) 641 | 2013 ONCA 147
Case Summary
Criminal law — Sentencing — Pre-sentence custody — Interpretation of when Truth in Sentencing Act permitting judge to give enhanced credit for pre-sentence custody of up to 1.5:1 — Discretion to grant enhanced credit not limited to exceptional or unusual circumstances and enactment not excluding consideration of loss of remission or eligibility for parole when judge exercising unfettered discretion to increase credit within limit provided by s. 719(3.1) of Code — Enhanced credit appropriate if evidence or information before judge indicating loss of remission and parole ineligibility relevant to particular accused in circumstances of case — Sentencing judge not erring in giving accused credit at ratio of 1.5:1 solely on basis of accused's ineligibility for remission and parole while in custody — Criminal Code, R.S.C. 1985, c. C-46, s. 719(3.1).
The accused pleaded guilty to manslaughter and was sentenced to eight years' imprisonment, less a credit for pre-sentence custody. The only issue in dispute at the sentencing was whether he was entitled his loss of remission and ineligibility for parole as a pre-trial detainee. There was no suggestion that his remand conditions were particularly harsh or oppressive. The sentencing judge found that he was entitled to credit for pre-sentence ratio at a ratio of 1.5:1 under s. 719(3.1) of the Criminal Code based on the unavailability of parole eligibility while in remand custody. The Crown appealed, arguing that s. 719(3.1) contemplates that only exceptional circumstances can justify enhanced credit and that a remand offender's loss of remission and parole ineligibility during pre-sentence custody does not qualify as an exceptional circumstance within the meaning of s. 719(3.1).
Held, the appeal should be dismissed.
Section 719(3.1) of the Code allows a sentencing judge to credit pre-trial custody at a ratio up to, but not exceeding, 1.5:1 for each day spent in pre-sentence custody where, on consideration of all relevant circumstances, such credit is necessary to achieve a fair and just sanction in accordance with the statutory scheme for sentencing and punishment set out in the Code. Section 719(3.1) provides that enhanced credit may be given "if the circumstances justify it". No limiting language is used in connection with the word "circumstances". The legislative record contains conflicting remarks by governmental officials and cannot provide a reliable source of information about how Parliament intended "circumstances" to be interpreted. The discretion to grant enhanced credit is not limited to "exceptional" or "unusual" circumstances. To interpret it as being so limited would be inconsistent with the touchstone sentencing principles of proportionality and parity, and would lead to unjust sentences and a corresponding erosion of public faith in the criminal justice system. Relevant circumstances that may justify an enhanced credit for pre-sentence custody may include ineligibility for remission and parole if there is evidence or information before a court supporting the conclusion that these factors are relevant to a particular offender in the circumstances of the case. The trial Crown agreed that the accused should receive enhanced credit of 1.5:1 for more than half of the pre-sentence period. The [page642] trial Crown also noted that the accused would likely be considered for early parole, implicitly acknowledging that his conduct while detained would not have disentitled him to earned remission or detract from an application for parole. In this case, it was open to the sentencing judge to conclude that the circumstances justified the granting of enhanced credit at the rate of 1.5:1.
Cases referred to
R. v. Carvery, [2012] N.S.J. No. 527, 2012 NSCA 107, 321 N.S.R. (2d) 321, 267 C.R.R. (2d) 294 [Leave to appeal to S.C.C. granted [2012] S.C.C.A. No. 519]; R. v. Joseph, [2012] B.C.J. No. 1802, 2012 BCCA 359, 326 B.C.A.C. 312 (C.A.); R. v. Stonefish, [2012] M.J. No. 420, 2012 MBCA 116, consd
Other cases referred to
Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; Németh v. Canada (Justice), [2010] 3 S.C.R. 281, [2010] S.C.J. No. 56, 2010 SCC 56, 221 C.R.R. (2d) 6, EYB 2010-182579, 408 N.R. 198, 11 Admin L.R. (5th) 159, 91 Imm. L.R. (3d) 165, 2010EXP-3890, J.E. 2010-2098, 263 C.C.C. (3d) 434, 328 D.L.R. (4th) 431; R. v. B. (J.), 2004 39056 (ON CA), [2004] O.J. No. 2559, 187 O.A.C. 307, 62 W.C.B. (2d) 242 (C.A.); R. v. Critton, [2002] O.J. No. 2594, [2002] O.T.C. 451, 54 W.C.B. (2d) 543 (S.C.J.); 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, 69 W.C.B. (2d) 12 (C.A.); R. v. Francis (2006), 2006 10203 (ON CA), 79 O.R. (3d) 551, [2006] O.J. No. 1287, 210 O.A.C. 41, 207 C.C.C. (3d) 536, 69 W.C.B. (2d) 786 (C.A.); R. v. Gomboc, [2010] 3 S.C.R. 211, [2010] S.C.J. No. 55, 2010 SCC 55, 221 C.R.R. (2d) 198, 2010EXP-3806, 34 Alta. L.R. (5th) 1, 408 N.R. 1, J.E. 2010-2060, EYB 2010-182517, 490 A.R. 327, 263 C.C.C. (3d) 383, 328 D.L.R. (4th) 71, [2011] 2 W.W.R. 442, 89 C.P.R. (4th) 199, 92 W.C.B. (2d) 36; R. v. H. (R.), [2011] O.J. No. 2234, 2011 ONCA 396, affg [2010] O.J. No. 6035, 2010 ONCJ 735; R. v. Haly, [2012] O.J. No. 1847, 2012 ONSC 2302 (S.C.J.); R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1, [2004] O.J. No. 3252, 241 D.L.R. (4th) 490, 189 O.A.C. 90, 186 C.C.C. (3d) 129, 22 C.R. (6th) 1, 62 W.C.B. (2d) 510 (C.A.); R. v. Hawk, [2012] O.J. No. 4001, 2012 ONSC 4745 (S.C.J.); R. v. Ipeelee, [2012] 1 S.C.R. 433, [2012] S.C.J. No. 13, 2012 SCC 13, 428 N.R. 1, 91 C.R. (6th) 1, 318 B.C.A.C. 1, 2012EXP-1208, J.E. 2012-661, 288 O.A.C. 224, EYB 2012-204040, 280 C.C.C. (3d) 265, 99 W.C.B. (2d) 642, [2012] 2 C.N.L.R. 218; R. v. Jacko (2010), 101 O.R. (3d) 1, [2010] O.J. No. 2583, 2010 ONCA 452, 256 C.C.C. (3d) 113, 263 O.A.C. 326, 78 C.R. (6th) 84, [2010] 4 C.N.L.R. 211; R. v. Johnson, [2011] O.J. No. 822, 2011 ONCJ 77, 227 C.R.R. (2d) 41, 82 C.R. (6th) 241, 268 C.C.C. (3d) 423; R. v. Kravchov, 2002 79565 (ON CJ), [2002] O.J. No. 2172, 4 C.R. (6th) 137, 54 W.C.B. (2d) 445 (C.J.); R. v. Lee, [2012] A.J. No. 41, 2012 ABCA 17, 252 C.R.R. (2d) 37, 290 C.C.C. (3d) 506, 58 Alta. L.R. (5th) 30, 524 A.R. 22, [2012] 6 W.W.R. 699; R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, 194 N.R. 321, J.E. 96-671, 73 B.C.A.C. 81, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269, 30 W.C.B. (2d) 200; R. v. Mac, [2002] 1 S.C.R. 856, [2002] S.C.J. No. 26, 2002 SCC 24, 287 N.R. 75, J.E. 2002-832, 159 O.A.C. 33, 163 C.C.C. (3d) 1, 50 C.R. (5th) 50, revg 2001 24177 (ON CA), [2001] O.J. No. 375, 140 O.A.C. 270, 152 C.C.C. (3d) 1, 40 C.R. (5th) 138, 49 W.C.B. (2d) 23 (C.A.); R. v. Mayers, [2011] B.C.J. No. 1677, 2011 BCCA 365, 310 B.C.A.C. 188, 88 C.R. (6th) 226; R. v. McDonald (1998), 1998 13327 (ON CA), 40 O.R. (3d) 641, [1998] O.J. No. 2990, 111 O.A.C. 25, 127 C.C.C. (3d) 57, 17 C.R. (5th) 1, 54 C.R.R. (2d) 189, 39 W.C.B. (2d) 217; R. v. McIntosh (1995), 1995 124 (SCC), 21 O.R. (3d) 797, [1995] 1 S.C.R. 686, [1995] S.C.J. No. 16, 178 N.R. 161, J.E. 95-457, 79 O.A.C. 81, 95 C.C.C. (3d) 481, 36 C.R. (4th) 171, 26 W.C.B. (2d) 201; R. v. Monje, [2011] O.J. No. 1, 2011 ONCA 1, 267 C.C.C. (3d) 525, 273 O.A.C. 392; R. v. Morris, [2011] O.J. No. 3995, 2011 ONSC 5206, 97 W.C.B. (2d) 64 (S.C.J.); [page643] R. v. Nasogaluak, [2010] 1 S.C.R. 206, [2010] S.C.J. No. 6, 2010 SCC 6, 315 D.L.R. (4th) 193, EYB 2010-169818, 2010EXP-739, 206 C.R.R. (2d) 100, J.E. 2010-403, 251 C.C.C. (3d) 293, 398 N.R. 107, 72 C.R. (6th) 1, [2010] 4 W.W.R. 1, 90 M.V.R. (5th) 1, 474 A.R. 88, 19 Alta. L.R. (5th) 1; R. v. Pangman, [2001] M.J. No. 217, 2001 MBCA 64, [2001] 8 W.W.R. 10, 156 Man. R. (2d) 120, 154 C.C.C. (3d) 193, 50 W.C.B. (2d) 88; R. v. Proulx, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, 2000 SCC 5, 182 D.L.R. (4th) 1, 249 N.R. 201, [2000] 4 W.W.R. 21, J.E. 2000-264, 142 Man. R. (2d) 161, 140 C.C.C. (3d) 449, 30 C.R. (5th) 1, 49 M.V.R. (3d) 163, 44 W.C.B. (2d) 479; R. v. Rezaie (1996), 1996 1241 (ON CA), 31 O.R. (3d) 713, [1996] O.J. No. 4468, 96 O.A.C. 268, 112 C.C.C. (3d) 97, 3 C.R. (5th) 175, 33 W.C.B. (2d) 218 (C.A.); R. v. Rodgers, [2006] 1 S.C.R. 554, [2006] S.C.J. No. 15, 2006 SCC 15, 266 D.L.R. (4th) 101, 347 N.R. 201, J.E. 2006-910, 210 O.A.C. 200, 207 C.C.C. (3d) 225, 37 C.R. (6th) 1, 140 C.R.R. (2d) 1, 69 W.C.B. (2d) 741, EYB 2006-104246; R. v. Serdyuk, [2012] A.J. No. 673, 2012 ABCA 205, 533 A.R. 199, [2012] 12 W.W.R. 696, 68 Alta. L.R. (5th) 152, 102 W.C.B. (2d) 471; R. v. Serniak, [2002] O.J. No. 5160 (S.C.J.); R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52, 129 D.L.R. (4th) 657, 188 N.R. 284, J.E. 95-2139, 65 B.C.A.C. 37, 102 C.C.C. (3d) 193, 43 C.R. (4th) 269, 28 W.C.B. (2d) 516; R. v. Sloan, 1947 364 (ON CA), [1947] O.J. No. 43, 87 C.C.C. 198, 3 C.R. 107 (C.A.); R. v. Sooch, [2008] A.J. No. 517, 2008 ABCA 186, 433 A.R. 270, 234 C.C.C. (3d) 99, 91 Alta. L.R. (4th) 91, 78 W.C.B. (2d) 581; R. v. Tse, [2012] 1 S.C.R. 531, [2012] S.C.J. No. 16, 2012 SCC 16, 257 C.R.R. (2d) 295, 91 C.R. (6th) 223, 2012EXP-1459, J.E. 2012-794, 429 N.R. 109, 321 B.C.A.C. 1, 280 C.C.C. (3d) 423, 344 D.L.R. (4th) 599, 99 W.C.B. (2d) 750; R. v. Vittrekwa, [2011] Y.J. No. 76, 2011 YKTC 64, 246 C.R.R. (2d) 51, 275 C.C.C. (3d) 193, 88 C.R. (6th) 237, 97 W.C.B. (2d) 660; 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, J.E. 2000-832, 134 B.C.A.C. 236, 143 C.C.C. (3d) 129, 32 C.R. (5th) 58, REJB 2000-17652, 45 W.C.B. (2d) 492; Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006, 76 A.C.W.S. (3d) 894
Statutes referred to
Bail Reform Act, R.S.C. 1970 (2nd Supp.), c. 2
Canadian Charter of Rights and Freedoms, ss. 7, 12, 15
Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 120 [as am.], 127(3)
Criminal Code, R.S.C. 1985, c. C-46 [as am.], ss. 269.1(3), 475(3), 515(9.1), 524(4), (8), 672.14(3), 627.47(2), 687(1), Part XXIII [as am.], ss. 718 [as am.], 718.1 [as am.], 718.2(b) [as am.], 719(1), (3), (3.1), (3.2), (3.3), (3.4), 720-727 [as am.], 742.6(16) [as am.]
Interpretation Act, R.S.C. 1985, c. I-21, s. 14
Prisons and Reformatories Act, R.S.C. 1985, c. P-20 [as am.]
Truth in Sentencing Act, S.C. 2009, c. 29, s. 3
Authorities referred to
Driedger, Elmer A., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983)
House of Commons Standing Committee on Justice and Human Rights (May 6, 2009 and June 1, 2009)
Sullivan, Ruth, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008)
Trotter, Gary T., The Law of Bail in Canada, looseleaf, 3rd ed. (Toronto: Carswell, 2012)
APPEAL by the Crown from the sentence imposed by Glithero J., [2011] O.J. No. 6377 (S.C.J.). [page644]
Gregory J. Tweney and Molly Flanagan, for appellant.
Timothy E. Breen, for respondent.
Russell Silverstein, Ingrid Grant and Corbin Cawkell, for intervenor Criminal Lawyers' Association of Ontario.
The judgment of the court was delivered by
CRONK J.A.: —
I. Introduction
[1] For decades, the courts have recognized that time spent by offenders in remand custody before trial merits potential credit on sentencing due to the frequently onerous conditions of remand detention, the lack of programming available to offenders during such detention, and the unavailability of remission and parole eligibility for time spent on remand. As a result, for many years, crediting on sentencing for pre-trial and pre-sentence custody, in the discretion of the sentencing judge, has been a mainstay of Canadian sentencing law.
[2] In March 2009, Parliament introduced Bill C-25, the Truth in Sentencing Act, S.C. 2009, c. 29 (the "Act"). The Act applies to persons charged with a criminal offence after February 22, 2010, the day on which the Act came into force.1 The Act introduced four substantive amendments to the Criminal Code, R.S.C. 1985, c. C-46 (the "Code"), which are designed to limit the amount of credit that may be assigned on sentencing to pre-trial and pre-sentence custody and to increase the transparency of crediting decisions.
[3] This Crown sentence appeal raises an important issue of statutory interpretation regarding two of the amendments introduced under the Act. The narrow question is whether a sentencing judge has discretion under s. 719(3.1) of the Code to credit pre-trial or pre-sentence custody at a ratio greater than 1:1, up to a maximum of 1.5:1 ("enhanced credit"), to account for an accused's loss of remission and parole eligibility while in remand custody.
[4] This is a matter of first impression for this court. Moreover, when this appeal was perfected, the proper interpretation of s. 719(3.1) and its relationship with s. 719(3) of the Code had yet to be decided by any appellate court. However, in decisions released shortly before or after the date of oral argument, both [page645] the Nova Scotia and Manitoba Courts of Appeal addressed these issues in R. v. Carvery, [2012] N.S.J. No. 527, 2012 NSCA 107, 321 N.S.R. (2d) 321, leave to appeal to S.C.C., [2012] S.C.C.A. No. 519; and R. v. Stonefish, [2012] M.J. No. 420, 2012 MBCA 116.2
[5] In addition, the interpretive question raised on this appeal has been the subject of a host of trial court decisions, many conflicting, in Ontario and elsewhere across the country. In Ontario, see, for example, R. v. Johnson, [2011] O.J. No. 822, 2011 ONCJ 77, 268 C.C.C. (3d) 423; R. v. H. (R.), [2010] O.J. No. 6035, 2010 ONCJ 735, affd [2011] O.J. No. 2234, 2011 ONCA 396; contra, R. v. Morris, [2011] O.J. No. 3995, 2011 ONSC 5206 (S.C.J.); R. v. Hawk, [2012] O.J. No. 4001, 2012 ONSC 4745 (S.C.J.); R. v. Haly, [2012] O.J. No. 1847, 2012 ONSC 2302 (S.C.J.).
[6] The sentencing judge in this case, citing Johnson, held in brief reasons that the respondent was entitled to enhanced credit for pre-sentence custody under s. 719(3.1) of the Code based on the unavailability of parole eligibility while in remand custody. In his view, to conclude otherwise would result in fundamental unfairness and inequitable, disparate treatment between remand offenders, who are presumed innocent and whose time served pending trial and sentence does not apply to parole eligibility, and convicted offenders, who enjoy the benefit of parole considerations. This factor, among others, led to similar appellate rulings in Carvery and Stonefish.
[7] The interpretive inquiry required in this case is not an easy one. As the many divergent trial level authorities in Canada demonstrate, the proper interpretation of s. 719(3.1) and its relationship with s. 719(3) of the Code are matters on which reasonable people could disagree.
[8] As I see it, however, s. 719(3.1) of the Code allows a sentencing judge to credit pre-sentence custody at a ratio up to, but not exceeding, 1.5:1 for each day spent in pre-sentence custody where, on consideration of all relevant circumstances, such credit is necessary to achieve a fair and just sanction in accordance with the statutory scheme for sentencing and punishment set out in the Code. On a proper record, the relevant circumstances [page646] that may justify this enhanced credit include ineligibility for remission and parole while in remand custody. In the reasons that follow, I will explain the basis for this conclusion.
II. Facts
[9] Kayleigh Ingram-Summers ("Kayleigh") was born on March 2, 2010 to Kaitlyn Ingram ("Kaitlyn"), then 18 years of age, and Sean Summers ("Sean" or the "respondent"), then 19 years of age. Following Kayleigh's birth, Kaitlyn resided with her parents, Karen and Keith Ingram, while Sean lived elsewhere in his own apartment. Kayleigh stayed either with Kaitlyn and her family or at Sean's residence. By May 2010, Kaitlyn and Sean had stopped dating, but they continued to share custody of Kayleigh.
[10] On June 9, 2010, when Kayleigh was three months old, her grandfather noted bruises on her face after she returned from being in her father's care. The next day, he noted additional bruises and observed Kayleigh throwing up and shivering. Kayleigh also appeared to be lethargic, did not want to be placed on her back and was whimpering and not smiling. Family and Children's Services became involved and Sean acknowledged to the assigned case worker that he had caused Kayleigh's bruises. By June 13, 2010, Kayleigh was crying inconsolably, was continuing to vomit and appeared to be experiencing ear pain. She was taken to the hospital but no specific diagnosis was made.
[11] On June 17, 2010, Kayleigh was examined by a pediatrician at his office. He became concerned about her bruising and arranged for Kayleigh to be admitted to hospital pending further examination. Kayleigh was subjected to various tests but no medically conclusive cause of her injuries and condition was determined. She was released from the hospital on June 19, 2010 into the care of her young mother.
[12] On June 24, 2010, a meeting was convened among Kaitlyn, Sean, Kaitlyn's parents and other members of her family, and Family and Children's Services. At the meeting, Sean expressed concern about his ability to parent Kayleigh in times of stress. He requested that a third party be present during his visits with her and agreed that Kaitlyn would fulfil this function in the future.
[13] On July 6, 2010, Kayleigh's pediatrician again examined her, for her four-month checkup. Everything appeared to be normal.
[14] Within days, events took a dramatic and tragic turn. In exchange for Kaitlyn caring for Kayleigh for three days while he was away, Sean had agreed to watch Kayleigh on July 8-10, 2010. [page647] He cared for her on July 8 without incident. On the morning of July 9, he told Kaitlyn that he did not wish to pick up Kayleigh or to care for her that day. Kaitlyn protested and took Kayleigh to Sean's residence anyway, leaving her in his care. During the course of the day, Sean repeatedly called and texted Kaitlyn, leaving her a series of insulting and threatening messages. In one of his messages, he told Kaitlyn that Kayleigh was "having a hard time breathing and you don't care". He also tried to reach the Family and Children's Services' caseworker. When he was unable to do so, he left her a voicemail.
[15] At some point on July 9, Sean violently shook Kayleigh, causing injuries that ultimately resulted in her death. He did not seek medical care for Kayleigh at any time. When Kaitlyn and her father picked Kayleigh up at Sean's residence that evening, they noted that she was unresponsive, pale, glassy-eyed and lethargic, had difficulty breathing and was unable to support her head. They immediately took her to the hospital. Kayleigh underwent emergency surgery, but eventually died in hospital on July 12, 2010 from injuries consistent with shaken baby syndrome.
[16] Sean was arrested on July 12, 2010 on a charge of second degree murder in connection with his daughter's death. In a statement to police on the same day, he admitted responsibility for her injuries.
[17] After his arrest, Sean was detained in custody pending trial for approximately ten and one-half months. In April 2011, after a judicial pre-trial, the completion of Crown disclosure and the production of a pathology report, the original information against Sean was withdrawn and a new information was sworn, charging him with manslaughter.
[18] At trial, the defence did not challenge the constitutional validity of s. 719(3) and (3.1) of the Act.3 Instead, on May 30, 2011, Sean pleaded guilty to manslaughter, agreed to the facts in support of his plea and a conviction was entered. Counsel at trial [page648] agreed that an appropriate sentence on the admitted facts was in the range of eight to ten years' imprisonment. The defence sought an eight-year penitentiary term (the low end of the agreed range), while the Crown argued for a ten-year sentence of imprisonment (the high end of the agreed range), before any credit for pre-sentence custody.
[19] There was no joint submission on the appropriate credit to be given for Sean's pre-sentence custody. Relying on Johnson, the defence argued that he should receive credit at the rate of 1.5:1 under s. 719(3.1) of the Code, exclusively on the basis of his inability to earn remission or parole while in remand custody. This would yield a total credit of approximately 16 months for pre-sentence custody. There was no suggestion that Sean's remand conditions were particularly harsh or oppressive.
[20] Crown counsel at trial also referenced Johnson in her submissions on sentence, inviting the sentencing judge to use his discretion concerning the total amount of credit to be granted. She conceded that the circumstances justified enhanced credit at the rate of 1.5:1, within the meaning of s. 719(3.1) of the Code, for the six months spent by Sean in pre-trial custody until December 2010. She further stated that if Sean maintained good behaviour while in custody, "[i]t would not be wrong to assume he would be eligible for early parole".
[21] The sentencing judge accepted the defence position and sentenced Sean to eight years' imprisonment. With respect to the appropriate credit for pre-sentence custody, he expressed concern about the lack of parole during remand custody and what he viewed as the resulting inequitable treatment between those accused who serve time in remand custody and those who do not, pending trial. Citing Johnson, he held that the lack of parole eligibility during remand detention warranted enhanced credit under s. 719(3.1) of the Code at the rate of 1.5:1.
[22] In reaching this conclusion, the sentencing judge correctly noted, at para. 40, that "the vast majority of people are granted parole somewhere between one-third and two-thirds of their sentence, with more of them being towards the one-third mark".4 He then said: [page649]
[I]f 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 granting 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.
[23] The sentencing judge concluded with these remarks, at para. 41:
I just say it's absolutely unfair to treat someone who is presumed to be innocent more harshly than we would treat someone who has been found to be guilty . . . 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.
[24] In the result, the sentencing judge granted credit of 16 months, at a ratio of 1.5:1, for Sean's pre-sentence custody exclusively on the basis of Sean's ineligibility for parole while in remand custody. Accordingly, a sentence of 80 months' (six years and eight months) imprisonment, after credit for pre-sentence custody, was imposed.
[25] The Crown appeals against sentence on the sole ground that the sentencing judge erred by holding that the lack of remission or parole eligibility during pre-sentence custody,5 on its own, can justify enhanced credit at the rate of 1.5:1 for each day in custody under s. 719(3.1) of the Code. The Crown submits that to conclude otherwise, as the sentencing judge did, is to err in law by misinterpreting s. 719(3.1) and to defeat the will of Parliament as reflected in s. 719(3) and (3.1) of the Code.
[26] The Crown, therefore, asks this court to vary the sentence imposed by recalculating the credit given for pre-sentence custody at the rate of 1:1. This would result in an overall sentence of 85.5 months' (seven years and one and one-half months) imprisonment. The defence, supported by the intervenor, the Criminal Lawyers' Association of Ontario (the "CLAO"), strongly resists the Crown's challenge to the credit granted by the sentencing judge, on numerous grounds. [page650]
III. Relevant Statutory Provisions
[27] Two of the amendments introduced under the Act are the focus of this appeal. They read:
- Subsection 719(3) of the Act is replaced by the following:
(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).6
[28] The predecessor version of s. 719(3) was added to the Code in 1972 as part of the Bail Reform Act, R.S.C. 1970 (2nd Supp.), c. 2. It read:
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.
[29] The amendments introduced by the Act form part of Part XXIII of the Code, entitled "Punishment Generally". The purpose, objectives and principles of sentencing are codified earlier in Part XXIII of the Code, under the separate heading "Purpose and Principles of Sentencing". They provide, in part:
- 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:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders; [page651]
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[30] Section 719(1) of the Code precludes the antedating or postdating of a sentence. It states: "A sentence commences when it is imposed, except where a relevant enactment otherwise provides."
IV. Issues
[31] There is no attack before this court on the sentence of eight years' imprisonment imposed by the sentencing judge. The only issue is whether the sentencing judge erred in law by crediting the respondent's pre-sentence custody at the rate of 1.5:1 to take account of his ineligibility for remission and parole while in remand custody.
V. Analysis
(1) Prior regime for crediting pre-sentence custody
[32] Prior to the enactment of the Act, former s. 719(3) of the Code authorized sentencing judges, in the exercise of their sentencing discretion, to take into account any pre-sentence custody of the accused occasioned "as a result" of the offence for which the accused stood convicted. Apart from this statutory provision and cognizant of the inability to antedate a sentence, the courts had also long recognized that fairness compelled consideration on sentencing of time spent in pre-sentence custody. See, for example, R. v. Sloan, 1947 364 (ON CA), [1947] O.J. No. 43, 87 C.C.C. 198 (C.A.), at para. 7.
[33] In commenting on a predecessor provision to former s. 719(3), this court held in the leading case of R. v. Rezaie (1996), 1996 1241 (ON CA), 31 O.R. (3d) 713, [1996] O.J. No. 4468 (C.A.), at para. 25:
Although this section is discretionary, not mandatory, in my view a sentencing judge should ordinarily give credit for pre-trial custody. At least a [page652] judge should not deny credit without good reason. To do so offends one's sense of fairness. Incarceration at any stage of the criminal process is a denial of an accused's liberty.
[34] This passage from Rezaie was applied in hundreds of subsequent decisions: Gary Trotter, The Law of Bail in Canada, looseleaf, 3rd ed. (Toronto: Carswell, 2012), at 9-2. Thus, as confirmed in Rezaie, the courts consistently held that sentencing judges should usually afford some credit for pre-sentence custody, absent justification to the contrary.
[35] The jurisprudence of the Supreme Court emphasizes that sentencing is an intrinsically and profoundly subjective process. It is also highly case-centric and individualized: R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52, at para. 46; R. v. Proulx, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, 2000 SCC 5, at para. 82; R. v. Nasogaluak, [2010] 1 S.C.R. 206, [2010] S.C.J. No. 6, 2010 SCC 6, at para. 43; R. v. Jacko (2010), 101 O.R. (3d) 1, [2010] O.J. No. 2583, 2010 ONCA 452, 256 C.C.C. (3d) 113, at paras. 48 and 52. In R. v. Wust, [2000] 1 S.C.R. 455, [2000] S.C.J. No. 19, 2000 SCC 18, at para. 44, the Supreme Court put it this way: "[T]he goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence." More recently, in R. v. Ipeelee, [2012] 1 S.C.R. 433, [2012] S.C.J. No. 13, 2012 SCC 13, LeBel J. stated, at para. 38:
The determination of a fit sentence is, subject to any specific statutory rules that have survived Charter scrutiny, a highly individualized process. Sentencing judges must have sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender. Appellate courts have recognized the scope of this discretion and granted considerable deference to a judge's choice of sentence.
[36] For these reasons, the courts have steadfastly rejected a rigid or formulaic approach to crediting pre-sentence custody, instead requiring that the appropriate credit be determined on a case-by-case basis: Wust, at para. 45; Rezaie, at para. 26; R. v. Francis (2006), 2006 10203 (ON CA), 79 O.R. (3d) 551, [2006] O.J. No. 1287 (C.A.), at para. 8.
[37] The conceptual rationale for crediting pre-sentence custody has traditionally been based on three considerations: (1) as in issue in this case, parole eligibility and statutory release and remission provisions do not take account of time spent in pre-sentence custody; (2) generally, detention centres do not provide educational, retraining or rehabilitation programming for those in custody waiting trial; and (3) due to overcrowding, inmate turnover, labour disputes and other factors, the custodial conditions for remand prisoners can be unusually onerous: Wust, at paras. 28 and 38; [page653] Rezaie, at para. 25; R. v. McDonald (1998), 1998 13327 (ON CA), 40 O.R. (3d) 641, [1998] O.J. No. 2990 (C.A.), at paras. 31-32; Francis, at para. 14.
[38] In light of these factors, remand detention has often been described as "dead time". As Arbour J. stated in Wust, at para. 45, "'Dead time' is 'real' time." More recently, in R. v. Monje, [2011] O.J. No. 1, 2011 ONCA 1, 273 O.A.C. 392, a case that postdates the Act, LaForme J.A. of this court observed, at para. 18:
I would note parenthetically that, to the extent that the [Act] . . . limit[s] an offender's entitlement to credit on a 2:1 basis, the reality of what "dead time" is remains. That is, pre-sentence custody continues to be "dead time" for the same reasons Laskin J.A. noted in Rezaie and remains one of the most punitive forms of imprisonment in Canada.
(Emphasis added)
[39] Based on these realities of pre-sentence custody, the courts developed the practice of assigning credit for each day spent in pre-sentence custody at the rate of 2:1. In Wust, at para. 45, the Supreme Court expressly endorsed this customary credit as "entirely appropriate" given the hardships associated with pre-sentence custody identified in Rezaie, in particular, the absence of programs and the fact that statutory remission mechanisms do not apply to remand custody. See, also, Francis, 2008 ABCA 186, [2008] A.J. No. 517, at paras. 11-13; R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321, [2006] O.J. No. 555 (C.A.); R. v. Sooch, [2008] A.J. No. 517, 2008 ABCA 186, 433 A.R. 270. In the years following Wust, the 2:1 crediting practice became well-entrenched, leading some courts to refer to it as a "norm" or "general rule": see Stonefish, at para. 14.
[40] On occasion, in the exercise of their discretion, sentencing judges credited pre-sentence custody on more than a 2:1 basis. This sometimes occurred where the evidence on sentencing established that an accused had been subjected to especially difficult or onerous conditions of detention while waiting for trial or sentencing: see, for example, R. v. Kravchov, 2002 79565 (ON CJ), [2002] O.J. No. 2172, 4 C.R. (6th) 137 (C.J.); R. v. Critton, [2002] O.J. No. 2594, [2002] O.T.C. 451 (S.C.J.); R. v. Serniak, [2002] O.J. No. 5160 (S.C.J.).
[41] The granting of credit at a rate of three or four times the number of days actually spent in remand custody proved to be controversial, prompting calls by some for reappraisal of the approach to crediting pre-sentence custody. See, for example, the cautionary obiter comments of Moldaver J.A. of this court, as he then was, in R. v. B. (J.), 2004 39056 (ON CA), [2004] O.J. No. 2559, 187 O.A.C. 307 (C.A.), at footnote 1. [page654]
[42] By the same token, credit for pre-sentence custody was also sometimes denied entirely, or granted at a rate of less than 2:1, where circumstances warranted: Francis, at paras. 23-25; R. v. Pangman, [2001] M.J. No. 217, 2001 MBCA 64, 156 Man. R. (2d) 120, at para. 66; R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, at para. 96.
[43] Thus, prior to the Act, the amount of credit granted for pre-sentence custody began and ended with the exercise of a sentencing judge's broad discretion, indeed, obligation, to fashion a just and proportionate sentence, based on all the facts of the case.
[44] In my opinion, the varying treatment by sentencing judges of credit to be assigned for pre-sentence custody highlights a fundamental aspect of the complex calculus that is inherent in the task of crafting an appropriate sentence. On the one hand, the real-world features of pre-sentence custody dictate that, in the interests of fundamental fairness and the integrity of the criminal justice system, some credit for pre-sentence custody usually ought to be afforded on sentencing. On the other hand, the same interests demand that crediting for pre-sentence custody not overwhelm the sentencing process itself. The resulting tension between these criminal justice imperatives informs the disputes that have arisen concerning the proper interpretation of s. 719(3) and (3.1) of the Code.
(2) Controlling principles
[45] The analysis of the scope of a sentencing judge's discretion under s. 719(3.1) of the Code must proceed on the basis of two controlling principles. First, appellate courts are ordinarily required to defer to sentences imposed by sentencing judges. Absent an error in principle, a failure to consider a relevant factor, or an overemphasis of the appropriate factors, appellate courts should only interfere with a trial judge's sentencing decision where the sentence imposed is demonstrably unfit: Shropshire, at para. 47; R. v. M. (C.A.), at paras. 89-90; Rezaie, at paras. 17-20. Where, however, the error alleged is the misconstruction of a governing statutory provision, as in this case, and the error is made out, deference to the sentencing judge is displaced.
[46] Second, it is now clear that there is only one approach to statutory interpretation in Canada, in both the civil and criminal law domains. In Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, at para. 21, the Supreme Court endorsed this formulation of the preferred approach, [page655] articulated by Elmer Driedger in Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[47] In Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, at paras. 26-27, Iacobucci J., writing for the Supreme Court, elaborated:
I note as well that, in the federal legislative context, this Court's preferred approach [to statutory interpretation] is buttressed by s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides that every enactment "is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects".
The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute: as Professor John Willis incisively noted in his seminal article "Statute Interpretation in a Nutshell" (1938), 16 Can. Bar Rev. 1, at p. 6, "words, like people, take their colour from their surroundings".
(Citations omitted)
(3) Interpretation of section 719(3.1) of the Code
(a) Existing jurisprudence
[48] In Carvery, at paras. 22-23, the Nova Scotia Court of Appeal characterized the existing jurisprudence regarding the meaning of s. 719(3.1) of the Code as falling into "two general camps": those cases holding that enhanced credit for pre-sentence custody under s. 719(3.1) is available only where exceptional circumstances warranting credit at a rate greater than 1:1 are demonstrated, and those cases holding that exceptional circumstances need not be shown to justify enhanced credit under s. 719(3.1).
[49] This is an apt depiction of the divide in the reported trial level decisions across Canada regarding the interpretation of this provision. To this I would add that the available appellate level decisions to date -- Carvery and Stonefish -- have endorsed the interpretive result in the second line of cases: a showing of exceptional circumstances is not required to ground enhanced credit under s. 719(3.1).
[50] As in Carvery, I see no useful purpose on this appeal in examining all the conflicting authorities that address the proper interpretation of s. 719(3.1). The critical issue, common to all, is whether enhanced credit may be justified under s. 719(3.1) only in exceptional circumstances. [page656]
[51] In this case, the Crown contends that the unavailability of remission or parole eligibility during remand custody, on its own, can never justify enhanced credit for pre-sentence custody under s. 719(3.1). The Crown, relying heavily on the legislative history of the Act, advances several arguments in support of this interpretive conclusion. At the end of the day, the Crown's position is that, properly interpreted, s. 719(3.1) contemplates that only exceptional circumstances can justify enhanced credit and that a remand offender's loss of remission and parole eligibility during pre-sentence custody does not qualify as an exceptional circumstance within the meaning of s. 719(3.1).
(b) Section 719(3)
[52] The starting point for analysis is s. 719(3). The Crown argues that s. 719(3) imposes a "cap" on the amount of credit that may be given by a sentencing judge for pre-sentence custody, the effect of which is to limit any credit for that time to a maximum of one day for each day spent in pre-sentence custody. Parliament has decreed, the Crown says, that this is the new "general rule" for the amount of credit that may be assigned for pre-sentence custody, in substitution for the previous 2:1 crediting practice, described above. I agree with this characterization of the import of s. 719(3).
[53] The current version of s. 719(3) is identical to the predecessor version of this provision, save in one significant respect. Under the Act, the following qualifying phrase was added at the end of s. 719(3): "but the court shall limit any credit for that time to a maximum of one day for each day spent in custody".
[54] This language is clear and mandatory. Read in its entirety, s. 719(3) preserves the discretion of sentencing judges to determine whether credit will be granted for pre-sentence custody. However, it also establishes a new statutory ceiling on the amount of available credit by providing that the maximum amount of credit is to be calculated on a 1:1 basis (emphasis added).
[55] Accordingly, credit for pre-sentence custody must now ordinarily be based on a ratio of 0:1 to 1:1. I did not understand the respondent or the CLAO to vigorously challenge this construction of s. 719(3).
(c) Section 719(3.1) and its relationship to section 719(3)
[56] The battleground on this appeal concerns the proper interpretation of the word "circumstances" as it appears in the phrase "if the circumstances justify it" in s. 719(3.1). For convenience, I again set out s. 719(3.1) of the Code: [page657]
719(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).
[57] As I understood the Crown's position, its interpretation of s. 719(3.1) proceeds in three steps. First, the Crown argues that s. 719(3.1) sets out an exception to the new 1:1 maximum credit approach mandated by s. 719(3). The Crown submits that s. 719(3.1) preserves "some degree" of judicial discretion to increase the amount of credit for pre-sentence custody beyond that calculated at the rate of 1:1. As I elaborate later in these reasons, I agree.
[58] The Crown next says that this judicial discretion is limited by two factors: (1) any enhanced credit for pre-sentence custody (beyond the 1:1 rate) is permissible only where "the circumstances justify it"; and (2) enhanced credit is precluded in two situations -- where the reason for the accused's pre-sentence detention was stated in the record under s. 515(9.1) or the accused was detained in custody under s. 524(4) or (8). On a plain reading of s. 719(3.1), I again agree.
[59] Third, the Crown submits that when s. 719(3) and (3.1) are read together, it is clear that the unavailability of remission or parole eligibility during remand detention (presumably like the other factors traditionally regarded as justifying enhanced credit for such detention -- e.g., harsh conditions of detention and lack of programming) is a consideration relevant only to the crediting analysis under s. 719(3). In other words, while the unavailability to a remand offender of remission and parole eligibility is a factor that may justify credit calculated at the maximum rate of 1:1, it is not a circumstance that may justify credit under s. 719(3.1) at a rate greater than 1:1, in any situation. For reasons I will explain, I disagree with this third and final step of the Crown's proposed interpretation of s. 719(3.1).
[60] The respondent and, particularly, the CLAO, counter that this reading of s. 719(3) and (3.1) is contrary to the plain meaning of these provisions, the express intention of Parliament regarding a sentencing judge's discretion to fashion a sentence that is just and appropriate to the circumstances of the offence and the offender and, more generally, to the established principles of sentencing. They submit that the unavailability of remission and parole eligibility during remand detention "can and generally should be a circumstance" that warrants credit for pre-sentence custody up to a maximum of 1.5:1 under s. 719(3.1). [page658]
[61] More specifically, these parties contend that the unavailability of remission and parole eligibility during remand detention is a "circumstance" within the meaning of s. 719(3.1) that strongly supports the granting of credit for pre-sentence custody at the rate of 1.5:1, and should generally justify it absent a compelling reason to deny it, so long as the existing parole scheme remains unaltered. To hold otherwise would unjustifiably reverse the long-established relationship between the absence of remission and parole eligibility and enhanced credit for pre-sentence custody. Further, the Crown's urged interpretation of s. 719(3) and (3.1) would result in disparate and unjust treatment of similarly situated offenders and potential violations of an offender's ss. 7 and 12 Charter rights.
[62] I make this preliminary observation regarding the parties' competing interpretations of s. 719(3.1). In my view, there can be no serious challenge to the assertion that the purpose of s. 719(3) and (3.1) is to limit the amount of credit that can be assigned on sentencing to pre-sentence custody, in particular, by eliminating routine crediting at the rate of 2:1.
[63] The cases describe 2:1 crediting, variously, as a "practice", "rule", "custom", "norm" or "convention". In the aftermath of the Act, the proper characterization of 2:1 crediting is irrelevant. Prior to the Act, it was a customary, although not uniform, approach to crediting pre-sentence custody. Under the Act, however, as noted in Carvery, at para. 83, and accepted in Stonefish, at para. 33, "[T]he general rule of a 2:1 credit was to be scrapped in all circumstances."
[64] Thus, under the Act, credit at the rate of 2:1 is no longer even possible: Stonefish, at para. 16. Instead, while the decisions whether to grant credit and, if so, as to the amount of appropriate credit, remain discretionary determinations for the sentencing judge, the credit that may be granted is limited to a maximum rate of 1:1 (s. 719(3)), unless "the circumstances justify" enhanced credit (s. 719(3.1)). Even then, the extent of enhanced credit is limited to that calculated at the maximum rate of 1.5:1: Stonefish, at para. 34.
[65] In my view, the interpretation of the phrase "if the circumstances justify it", including, in particular, the word "circumstances" in s. 719(3.1), must be undertaken in the context of this legislative purpose and scheme. For the following seven reasons, I am unable to accept the restrictive interpretation of "circumstances" urged by the Crown.
[66] I note, first, the obvious but important point that s. 719(3.1) is silent as to the situations that will justify enhanced credit for pre-sentence custody. As others have observed, the [page659] word "circumstances" in s. 719(3.1) is not qualified by any modifying or limiting language. Nor is it defined under the Act. As indicated by Chief Judge Cozens in R. v. Vittrekwa, [2011] Y.J. No. 76, 2011 YKTC 64, 275 C.C.C. (3d) 193, at para. 46, none of the words "exceptional", "unusual" or "special" (nor, I would add, any of the words "compelling", "extraordinary" or "rare") is used in s. 719(3.1) to constrain or limit the circumstances that may justify enhanced credit.
[67] Both in Carvery and Stonefish, the courts undertook thoughtful and comprehensive analyses of the meaning of s. 719(3.1) and its relationship with s. 719(3). In Carvery, when examining the grammatical and ordinary sense of the words in s. 719(3.1), Beveridge J.A. noted the absence of any descriptive words concerning the nature of the circumstances in which enhanced credit may be granted. After referring to Vittrekwa, he made this apt comment, at para. 47:
It is certainly correct to say that if Parliament intended to exclude as a circumstance factors such as loss of remission that might justify granting more credit than 1:1, it could have easily inserted some qualifying words such as "if the circumstances, other than loss of remission or parole eligibility, justify it, the maximum is one and one-half days.
(Emphasis added)
[68] I agree. The legislator's failure to employ modifying language in connection with the word "circumstances" in s. 719(3.1), particularly when restrictive language could readily have been inserted, is significant. It gives rise to the inference that a sentencing judge enjoys a wide discretion under the provision to consider all those circumstances that may, in a particular case, warrant enhanced credit, subject always to Parliament's clear direction that such credit should not exceed that calculated at the maximum rate of 1.5:1.
[69] Indeed, I go further. The absence of limiting language in connection with the word "circumstances" in s. 719(3.1) is telling for two additional reasons. First, although nothing in s. 719(3.1) affords any guidance about the situations that would support an enhanced credit claim, it does identify two circumstances in which enhanced credit is explicitly unavailable. The concluding language of s. 719(3.1) excludes from consideration for enhanced credit those offenders who have been denied bail primarily because of a previous conviction (the Code s. 515(9.1) exclusion) and offenders who have contravened their bail conditions or committed an indictable offence while on bail (the Code s. 524(4) or (8) exclusion). Enhanced credit for these offenders is expressly prohibited. [page660]
[70] These exclusions confirm that Parliament considered factors warranting disentitlement to enhanced credit. This strongly suggests that the failure to mention other exclusions -- such as the loss of remission and parole eligibility for remand prisoners -- was not a mere drafting oversight, but rather a deliberate choice.
[71] Second, the absence of qualifying language in s. 719(3.1) is also significant because other provisions of the Code employ the phrases "exceptional circumstances", "exceptional cases" or "compelling circumstances": see, for example, ss. 269.1(3) (defences to the offence of torture), 475(3) (the re-opening of the trial of an absconding accused), 672.14(3) (the making of a 60-day assessment order to determine the fitness of an accused to stand trial), 672.47(2) (the extension of time to hold an Ontario Review Board hearing) and 742.6(16) (time served under a conditional sentence order).
[72] The use of limiting language in relation to the word "circumstances" in some sections of the Code, in contrast to the legislator's choice of language in s. 719(3.1), triggers the presumption of consistent expression. Under this rule of statutory interpretation, it is presumed that Parliament "uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings": Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008), at pp. 214-15.
[73] Like all interpretive presumptions, this rule may be displaced, or attract reduced weight, depending on the circumstances. That said, its application here bolsters the conclusion that the absence of limiting language in s. 719(3.1) was not inadvertent and that it is open to a sentencing judge under s. 719(3.1) to have regard to all relevant circumstances, including the loss of remission and parole eligibility during remand custody, when evaluating a claim for enhanced credit.
[74] I therefore do not agree with the Crown's submission that the discretion conferred on sentencing judges to grant enhanced credit under s. 719(3.1) is "strictly controlled". To the contrary, the language of s. 719(3.1) suggests that this discretion is unfettered (save for the express exclusions from enhanced credit identified in the section and the overarching restriction that in no event may enhanced credit exceed that calculated at the maximum rate of 1.5:1). The need for justification of enhanced credit says nothing about what will constitute justification and under what conditions. Parliament was capable of identifying those conditions. [page661]
[75] It follows that I see much to commend Chief Judge Cozens' conclusion in Vittrekwa, at para. 46, that the legislator's choice of language in s. 719(3.1) indicates that ordinary or common circumstances may be sufficient to ground enhanced credit for pre-sentence custody in a proper case. On this construction of s. 719(3.1), as Chief Judge Cozens indicated: "The critical factor is that the circumstances are enough, in the particular case, to justify increasing the credit for remand custody up to the maximum of 1.5:1." In other words, the test is whether the circumstances relied on for enhanced credit are sufficient -- not whether they are rare or ubiquitous.
[76] My second reason for disagreeing with the Crown's suggested interpretation of the word "circumstances" flows from the fact that s. 719(3), the 1:1 crediting provision, contains no language, express or implied, to support the Crown's contention that credit for the unavailability of remission and parole eligibility during remand custody is to be taken into account exclusively on a s. 719(3) analysis.
[77] Third, I am not persuaded that the "architecture" of s. 719(3) and (3.1), that is, their structure or the sequence in which they appear, compels the interpretive outcome urged by the Crown.
[78] As I said earlier, I accept that the arrangement of s. 719(3) and (3.1) and the language of the latter section indicate that s. 719(3.1) operates as an exception to the maximum 1:1 limit on credit for pre-sentence custody provided for under s. 719(3). This is confirmed by the elimination under s. 719(3) of the previous 2:1 crediting practice, and the substitution of a general maximum 1:1 crediting approach. Section 719(3.1) then authorizes a departure from this approach. The introductory language to s. 719(3.1) reads "despite subsection 3" (in the English language version) and "malgré le paragraphe (3)" (in the French language version). The ordinary meaning of these words establishes that enhanced credit may be granted notwithstanding or despite s. 719(3).
[79] But this arrangement begs the question of when such enhanced credit may be granted. It is not revelatory of the intended scope of the word "circumstances" in s. 719(3.1). In my view, the structure or sequencing of s. 719(3) and (3.1), coupled with the introductory language of the latter section, simply reveals the intention that more offenders will be eligible for credit up to a maximum of 1:1 than for enhanced credit up to a maximum of 1.5:1. Stated differently, the fact that crediting to a maximum of 1.5:1 is an expressly permitted exception to [page662] 1:1 crediting does not mean that the circumstances warranting such enhanced credit must themselves be exceptional.
[80] Nor does the legislative draftsperson's use of a marginal note, entitled "exception", in connection with s. 719(3.1) undercut this conclusion. As Steel J.A. indicated in Stonefish, at para. 41, marginal notes are inserted for convenience only. They are not part of the enactment and are of limited value as an aid to statutory interpretation: see Interpretation Act, R.S.C. 1985, c. I-21, s. 14. In any event, s. 719(3.1) is an exception -- to the maximum 1:1 crediting approach dictated by s. 719(3).
[81] The effect of the Crown's argument, in my view, is to ask this court to rewrite s. 719(3.1) of the Act by reading the word "exceptional" into the provision so that it reads: "if exceptional circumstances justify it", thus reading down the ambit of the word "circumstances". This is inconsistent with the general and unqualified nature of the statutory language used in s. 719(3.1). It is also contrary to the applicable rules of statutory interpretation. In McDonald, at paras. 26-27, this court considered whether words should be read into the former s. 719(3) of the Code in order to construe it as having no application to statutory minimum sentences. In rejecting this approach, the court relied on the following passage from R. v. McIntosh (1995), 1995 124 (SCC), 21 O.R. (3d) 797, [1995] 1 S.C.R. 686, [1995] S.C.J. No. 16, at para. 28, concerning the contextual approach to the interpretation of the words of a statute:
[T]he contextual approach allows the courts to depart from the common grammatical meaning of words where this is required by a particular context, but it does not generally mandate the courts to read words into a statutory provision. It is only when words are "reasonably capable of bearing" a particular meaning that they may be interpreted contextually. [Emphasis in original.]
[82] Fourth, the Crown relies heavily on the legislative history of the Act to support its argument that enhanced credit was intended by Parliament to be available only in exceptional circumstances that do not include the unavailability of remission and parole eligibility for remand offenders. On the legislative record before us, I cannot accept this argument.
[83] The Crown cites, especially, remarks made by the Minister of Justice when he appeared before the House of Commons Standing Committee on Justice and Human Rights (May 6, 2009) to address Bill C-25. In his comments, at p. 1630, the minister noted that the "circumstances" envisaged under s. 719(3.1) for enhanced credit are not defined. He then provided two examples of situations where it was anticipated that enhanced credit may be considered -- extremely poor conditions of detention and [page663] unnecessary delays in an accused's trial not attributable to the accused. The Crown emphasizes that the loss of remission or parole while in remand detention was "notably absent" from the minister's cited examples.
[84] But, in this case, the legislative record sheds little reliable light on the meaning and reach of the word "circumstances" in s. 719(3.1). Reliance on legislative history to discern the intended meaning of a statutory provision is appropriate only where the legislative record is relevant and reliable. Even then, it must be used with caution: Németh v. Canada (Justice), [2010] 3 S.C.R. 281, [2010] S.C.J. No. 56, 2010 SCC 56, at para. 46. Here, as observed in Carvery, at paras. 83-84, and Stonefish, at paras. 60-67, the record is replete with conflicting and inconsistent statements made by representatives of the government during the parliamentary review of Bill C-25 regarding s. 719(3.1).
[85] Apart from the minister's statements, comments by other government spokespersons during consideration of Bill C-25, including by David Daubney -- a senior policy advisor in the Department of Justice who was involved in drafting Bill C-25 -- undermine the claim that enhanced credit was intended to apply only in exceptional circumstances that exclude the loss of remission and parole eligibility by remand offenders. Indeed, certain of Mr. Daubney's remarks suggest precisely the opposite.
[86] One example will suffice to make this point. Mr. Daubney testified before the House of Commons Standing Committee on Justice and Human Rights (June 1, 2009), at p. 1605, in part as follows:
As you know, the more common expression in the Criminal Code is "in exceptional circumstances", but we deliberately didn't use that here 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.
(Emphasis added)
[87] Earlier in his testimony, Mr. Daubney also stated, at p. 1550:
The direction we had from our Minister and from the government generally was to prepare a bill based on one to one, with an opportunity to go up to 1.5 if the circumstances justified it. Frankly, its impact will be that courts trying to do justice will find that in many cases the circumstances do justify something between one to one and 1.5:1, but we'll have to see how that plays out.
(Emphasis added)
[88] These remarks are wholly inconsistent with the narrow interpretation of s. 719(3.1) contended for by the Crown. They also appear to be inconsistent with some of the minister's comments, as relied on by the Crown, concerning s. 719(3.1). In these circumstances, in my opinion, the legislative record regarding [page664] Bill C-25 cannot be regarded as a reliable marker of Parliament's intention concerning the meaning and scope of the word "circumstances" in s. 719(3.1).
[89] Fifth, the Crown contends that if, contrary to its submission, s. 719(3.1) is interpreted to apply in non-exceptional circumstances, Parliament's intention to reduce credit for pre-trial custody will be defeated because "every remand offender will qualify for enhanced credit". This result, the Crown says, will effectively transform s. 719(3.1) into the new "general rule" for credit for pre-sentence custody, thereby rendering s. 719(3) redundant and meaningless. In effect, the "exception" would swallow the "general rule".
[90] I disagree. A virtually identical argument was advanced by the Crown in Carvery and Stonefish. In Carvery, the Crown appears to have anchored this argument on the presumption against tautology, which holds that the legislature is presumed to avoid superfluous or meaningless words and that [at para. 54] "[e]very word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose": Sullivan on the Construction of Statutes, at p. 210. Although Crown counsel in the case at bar did not directly invoke this presumption, their "redundancy" complaint is rooted in the same principle of statutory interpretation.
[91] The Carvery and Stonefish courts rejected this argument. In Carvery, the court held, at para. 57, that "the arrangement of the subsections and the language used" in s. 719(3) and (3.1) does not lead to the conclusion that Parliament intended that "judicial discretion would be limited to granting credit of 1.5:1 only in exceptional cases". The court then continued, at paras. 59-60 and 66-67:
If subsection (3) did not set a base ratio of 1:1, what then would be the ratio for those offenders referred to in subsection (3.1) -- ones that have had their bail revoked or were remanded primarily due to his or her prior conviction? It is a maximum of one to one by virtue of subsection (3). Subsection (3) is therefore not rendered superfluous or redundant by interpreting s-s. (3.1) as not requiring exceptional circumstances before a judge can increase the credit.
The Crown suggests that "virtually every remand offender would get a credit at the ratio of 1.5:1" thereby creating a de facto maximum of 1.5:1 rather than 1:1. Also, it would leave "very, very few candidates for the application of s. 719(3)." With respect, I am unable to accede to this logic as being the guide to the contended for interpretation. As just mentioned, those denied bail due to a previous conviction (whatever that may mean) or for violation of bail conditions would be governed by s. 719(3). Furthermore, I do not see it as automatic or a foregone conclusion that a judge must grant credit at more than 1:1 based on loss of remission or parole.
. . . . . [page665]
I do not lose sight of the fact that it would not be onerous for most offenders to establish that they would have earned remission or been granted parole, and hence, it is not likely to be a rare occurrence for an offender to be worthy of a credit of more than 1:1[.]
Respectfully, I disagree with the view that the sequence of the subsections means subsection (3) creates a general rule and "exceptional" circumstances must be demonstrated to justify any increase above 1:1. The problem is that Parliament did not say any such thing -- when it would have been so easy to do so, if that were its intent.
[92] I agree with these comments.
[93] Sixth, and importantly, when s. 719(3) and (3.1) are viewed in the context of the statutory framework in which they appear, as they must be, the Crown's urged interpretation of s. 719(3.1) runs afoul of the fundamental principles of sentencing established under the Code and at common law.
[94] In Rizzo & Rizzo (Re) and Bell ExpressVu, the Supreme Court stressed the central importance of context to the task of statutory interpretation. Under the required contextual approach, it is presumed that a harmonious, coherent and consistent meaning is intended between statutes dealing with the same subject matter. Justice Iacobucci explained in Bell ExpressVu, at para. 27:
[W]here the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive. In such an instance, the application of Driedger's principle gives rise to what [has been] described . . . as "the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter".
(Citations omitted)
[95] The Act is concerned with one aspect of the sentencing process -- credit for pre-sentence custody. But the provisions of the Act form part of an overall statutory scheme for sentencing and punishment, set out in the Code. The construction of s. 719(3) and (3.1), therefore, must be undertaken in the context of, and in a manner that is harmonious, coherent and consistent with, that overall statutory scheme.
[96] And it is here, in my opinion, that the Crown's suggested interpretation of s. 719(3.1) seriously founders. Section 718.1 of the Code provides that "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In addition, s. 718.2(b) underscores the need for parity between offenders in sentencing. It states: "[A] sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." [page666]
[97] In my view, absent an affirmative expression of a contrary legislative intention, legislation that deals with sentencing and punishment, like the Act, must be interpreted in a manner that accords with the general principles of sentencing set out in the Code and that does not undermine the integrity of the criminal justice system.7
[98] The proportionality requirement embodied in s. 718.1 of the Code is not of recent origin. On the contrary, it has long been at the heart of the principles that guide sentencing under Canadian law. In Ipeelee, at paras. 36-37, the Supreme Court explained the fundamental importance of the proportionality requirement in sentencing law:
The fundamental principle of sentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. As this Court has previously indicated, this principle was not borne out of the 1996 amendments to the Code but, instead, has long been a central tenet of the sentencing process . . . It also has a constitutional dimension, in that s. 12 of the Canadian Charter of Rights and Freedoms forbids the imposition of a grossly disproportionate sentence that would outrage society's standards of decency[.]
The fundamental principle of sentencing (i.e. proportionality) is intimately tied to the fundamental purpose of sentencing -- the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system[.]
Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this case, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.
(Citations omitted; emphasis added)
See, also, Proulx, at para. 82; Nasogaluak, at paras. 40-42; R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1, [2004] O.J. No. 3252 (C.A.), at paras. 88-95.
[99] In addition to the core principle of proportionality, the principle of parity in sentencing, codified in s. 718.2(b) of the Code, promotes consistency in the law by directing that like offenders are to be punished in a similar manner for like offences. This [page667] approach fosters fairness in sentencing and enhances public confidence in the proper administration of justice.
[100] In light of these principles, I am unable to conclude that the crediting discretion accorded to sentencing judges under s. 719(3.1) does not extend to consideration of the loss of remission and parole eligibility during remand custody. Such a conclusion would set s. 719(3.1) on a collision course with the touchstone sentencing principles of proportionality and parity, leading to unjust sentences and a corresponding erosion of public faith in the criminal justice system.
[101] If, as the Crown maintains, the lack of remission and parole eligibility during remand custody can never justify enhanced credit for pre-sentence custody under s. 719(3.1), then the effective sentences of offenders denied bail or who do not seek bail, instead remaining in custody pending trial, will be longer than those of like offenders, charged with like offences, who do seek and are granted bail. The CLAO offers this hypothetical illustration:
[T]wo offenders commit a similar crime, are otherwise similarly situated, and are both sentenced to 90 days imprisonment. Offender A was released on bail immediately and served no pre-sentence custody. When sentenced to 90 days, he will actually spend 60 days at the provincial jail before his statutory release date (2/3 of his sentence). Offender B had no sureties to sign bail for him and was detained pending his trial, which was held on the earliest date available, 60 days after his arrest. If convicted and sentenced to 90 days, with his pre-sentence custody credited on a 1:1 basis, Offender B will be sentenced to a further 30 days jail, of which he will actually serve 20. The identically culpable offenders have thus served a significantly different number of days in jail -- Offender A, 60 days and Offender B, 80 days. Had Offender B's pre-sentence custody been credited at 1.5:1, to take into account that he would receive no remission for that time, he would have served the same actual sentence as Offender A -- 60 days.
[102] The sentencing judge in this case granted enhanced credit for pre-sentence custody at the rate of 1.5:1 precisely to avoid this type of disparate and inequitable treatment of offenders, in contravention of the proportionality and parity principles of sentencing.
[103] In my view, under the applicable rules of statutory interpretation and in the interests of justice, an interpretation of s. 719(3.1) of the Code that avoids such unfair sentencing disparities is clearly preferable to one that facilitates such disparities. As the CLAO points out, whether an accused has been granted bail or held in custody pending trial is not a proper consideration on sentencing. While the relevant considerations on a bail hearing are in some respects similar to those applicable at a sentence hearing (e.g., the existence of a prior criminal record [page668] or community support mechanisms), the test for bail and the determination of a fit sentence are conceptually and functionally different.
[104] The Crown submits that the prospect of such disparate sentencing results was a live issue during the parliamentary debates on Bill C-25. It points out that various amendments to Bill C-25 were proposed during the debates to take account of the loss of remission and parole eligibility by remand offenders. The Crown argues that the defeat of these proposed amendments confirms that Parliament was sensitive to the potential effect of s. 719(3.1) on remand offenders and made a deliberate policy choice to exclude the loss of remission and parole eligibility for such offenders from the circumstances that may support enhanced credit for pre-sentence custody under s. 719(3.1).
[105] I see two difficulties with this argument. First, recall the words of the Supreme Court in Ipeelee, at paras. 36-37, quoted above, that proportionality is "the fundamental principle of sentencing", "the sine qua non of a just sanction" and "a central tenet of the sentencing process". When coupled with the parity principle of sentencing, proportionality takes on an even more pivotal role in sentencing.
[106] There is no doubt that Parliament, having enacted the sentencing objectives and principles in the Code, is free to alter them, so long as this occurs without violating the Charter. But if Parliament intended to depart so profoundly from these bedrock principles of Canadian sentencing law (assuming that such a sea change in the law could survive full constitutional scrutiny), I have no hesitation in concluding that the legislator would have employed clear and unequivocal statutory language to do so. Parliament did not do so under the Act.
[107] And this leads to the second difficulty. I have already concluded that the legislative record in this case is not a reliable indicator of Parliament's intention regarding the meaning and scope of the word "circumstances" in s. 719(3.1). This includes the entire legislative record. Further, for the reasons already given, I see nothing in the language, structure or sequencing of s. 719(3) and (3.1) that evidences, expressly or by necessary and logical implication, a clear intention to effect the sweeping alteration of sentencing law described above.
[108] My seventh, and final, reason for rejecting the narrow interpretation of "circumstances" contended for by the Crown is a general, but compelling one. The fundamental task of a sentencing judge is to fashion a fit sentence, tailored to the circumstances of the particular offence and the particular offender. The task of appellate courts on appeals against sentence, unless the [page669] sentence is one fixed by law, is to consider the fitness of the sentence appealed against and either vary the sentence within the limits prescribed by law for the offence of which the accused was convicted, or dismiss the appeal: s. 687(1) of the Code.
[109] Thus, during both the sentencing phase of a trial and on appeal against sentence, the focus of the adjudicative inquiry is on the fitness of a sentence in the context of the facts of a specific case. On that essential inquiry, all relevant factors are in play, at all levels of courts, concerning the offence, the offender and the governing principles of sentencing. Once again, if Parliament had intended to circumscribe the long-established roles of sentencing and appellate judges by limiting the circumstances that may bear on the crediting of pre-sentence custody in the manner urged by the Crown, it may fairly be said that this intention would be clearly expressed in affirmative language. Nothing in s. 719(3.1) of the Code reflects this intention.
[110] What, then, was the intention of Parliament in enacting s. 719(3) and (3.1)? As suggested by the long title of Bill C-25 -- An Act to amend the Criminal Code (Limiting Credit For Time Spent in Pre-Sentencing Custody), the Act is indisputably designed to limit the amount of credit available for pre-sentence custody. This purpose is manifest from the introduction of maximum credits for pre-sentence custody under both s. 719(3) and (3.1).
[111] Contrary to the Crown's submission, this legislative purpose is neither defeated nor impaired by an interpretation of s. 719(3.1) that permits consideration of the loss of remission and parole eligibility during remand custody as a circumstance that may support enhanced credit for pre-sentence custody. I say this because the Act eliminates any prospect for crediting such custody at a 2:1, or greater, rate. Indeed, it limits such crediting to the maximum rate of 1.5:1. These are dramatic changes to the previously established practice of ordinarily crediting pre-sentence custody at the 2:1 rate.
[112] Limiting credit for pre-sentence custody to that calculated at a maximum rate of 1:1 (s. 719(3)) or at a rate greater than 1:1 up to a maximum of 1.5:1 (s. 719(3.1)) is a significant curtailment of the credit previously available for pre-sentence custody and of the wide discretion formerly exercised by sentencing judges when determining the appropriate amount of such credit to be granted in a particular case. A narrow construction of the phrase "if the circumstances justify it" is therefore not necessary to achieve the stated purpose of the Act. [page670]
(d) Conclusion
[113] In this case, in my opinion, the requisite contextual and purposive analysis reveals nothing within s. 719(3.1) itself, the four corners of s. 719(3) and (3.1) read together, or the overall sentencing and punishment regime of the Code that bars consideration of the absence of remission and parole eligibility during remand custody as a relevant and proper circumstance for the potential grant of enhanced credit for pre-sentence custody under s. 719(3.1).
[114] It follows that I share the view expressed by Beveridge J.A. in Carvery, at paras. 40 and 84, that the phrase "if the circumstances justify it" as it appears in s. 719(3.1) of the Act is not ambiguous. This phrase is not unclearly circumscribed. Apart from the maximum cap of 1.5:1 for enhanced credit and the explicit exclusions from 1.5:1 crediting set out in s. 719(3.1), the phrase is simply uncircumscribed altogether.
[115] Further, as Beveridge J.A. also observed in Carvery, at para. 40, the fact of persisting judicial disagreement at the trial level concerning the meaning of the phrase "if the circumstances justify it" and, in particular, the word "circumstances" in s. 719(3.1) does not demonstrate ambiguity in law. Bell ExpressVu holds, at para. 30, that differing interpretations of a statutory provision by the courts or doctrinal writers do not reveal ambiguity in the provision under scrutiny. Rather, a court must evaluate a claim of statutory ambiguity after undertaking the contextual and purposive interpretive analysis mandated by Rizzo & Rizzo (Re) and Bell ExpressVu. See, also, R. v. Mac, 2001 24177 (ON CA), [2001] O.J. No. 375, 140 O.A.C. 270 (C.A.), at para. 27, revd on other grounds [2002] 1 S.C.R. 856, [2002] S.C.J. No. 26, 2002 SCC 24.
[116] In the absence of ambiguity, other rules of statutory interpretation, such as those pertaining to the strict construction of penal statutes and the "Charter values" presumption, are inapplicable: Bell ExpressVu, at para. 28; R. v. Tse, [2012] 1 S.C.R. 531, [2012] S.C.J. No. 16, 2012 SCC 16, at para. 20; R. v. Gomboc, [2010] 3 S.C.R. 211, [2010] S.C.J. No. 55, 2010 SCC 55, at paras. 86-87; R. v. Rodgers, [2006] 1 S.C.R. 554, [2006] S.C.J. No. 15, 2006 SCC 15, at paras. 18-19. If I am in error, and if these principles were applied here, it would strengthen and support my interpretation of s. 719(3.1).8 [page671]
[117] That said, nothing in these reasons should be understood as suggesting that enhanced credit will be available under s. 719(3.1) to every remand offender on the basis of the absence of remission and parole eligibility. There must be some basis in the evidence or the information before the sentencing judge to support the conclusion that this factor merits enhanced credit for a particular offender in a given case.
[118] In Vittrekwa, the court held, at para. 77, that enhanced credit under s. 719(3.1) was available on evidence that the accused would be deprived of an opportunity to earn remission to which he would otherwise be entitled while in remand custody. The decision in Stonefish is to the same effect. I endorse and underscore the following comments of Steel J.A. in Stonefish, at paras. 81-83 and 85:
Loss of remission and statutory release may be individual circumstances justifying enhanced credit where the accused can bring evidence to the court that, had he or she been a sentenced inmate, they would have most probably received remission and/or statutory release. Just because the circumstance will be applicable to many, if not most, accused does not mean it cannot be a circumstance relevant to an individual accused.
. . . A trial judge has discretion to grant or not grant the enhanced credit. For example, an otherwise eligible accused who intentionally delayed proceedings by continuously discharging counsel, or an accused who created delay by not cooperating with probation officers during the preparation of the pre-sentence reports, or an accused who refuses to participate in treatment programs may not receive enhanced credit despite the loss of earned remission or may not receive any credit at all, depending on the discretion of the sentencing judge. All the circumstances should be taken into account.
But, on the other hand, if the accused can show that his or her behaviour on remand was such that they would have received remission had they been a sentenced prisoner, that is a factor that a court may take into account when exercising its discretion to award enhanced credit for [pre-sentence custody].
Based on evidence specific to the particular offender's behaviour while on remand, the loss of remission is transformed from a universal characteristic into an individual one.
(Emphasis added; citations omitted)
See, also, Carvery, at paras. 65-66.9
[119] I conclude where I began. In my view, properly construed, s. 719(3.1) of the Code permits a sentencing judge to credit pre-sentence custody up to a maximum of 1.5:1 for each [page672] day spent in pre-sentence custody where, on consideration of all relevant circumstances, such credit is necessary to achieve a fair and just sanction in accordance with the statutory scheme for sentencing and punishment set out in the Code. On a proper record, the relevant circumstances that may justify this enhanced credit include ineligibility for remission and parole while in remand custody.
(4) Credit for pre-sentence custody in this case
[120] It remains to consider whether the sentencing judge erred by granting enhanced credit, at the rate of 1.5:1, on the basis of the respondent's loss of remission and parole eligibility during his ten and one-half months of pre-sentence custody.
[121] Recently, in R. v. Joseph, [2012] B.C.J. No. 1802, 2012 BCCA 359, 326 B.C.A.C. 312, the British Columbia Court of Appeal considered the nature of the evidence required from an accused who seeks to establish that the circumstances justify enhanced credit for time spent in pre-sentence custody. Justice Harris concluded, at para. 31:
The [Act] does not explicitly amend the traditional sentencing procedure. There is nothing in s. 719 that amends the procedure by implication. There is no reason in principle to depart from the general rules applicable to all sentencing hearings when a court is asked to decide whether the circumstances justify granting enhanced credit.
[122] I agree. The same general principles that govern the admission of evidence and the provision of information to the court for the purpose of sentencing also apply to determining the amount of credit, if any, to be granted for pre-sentence custody under s. 719(3) and (3.1). See Joseph, at paras. 32-33.
[123] Thus, the provision of information relevant to a claim for enhanced credit need not be an onerous task. While formal evidence of an accused's likely prospects for remission or parole eligibility may be lead at a sentencing hearing, information bearing on these issues (e.g., information regarding an accused's conduct during detention; an accused's co-operation with authorities and adherence to prison rules; or an accused's efforts to advance to trial) may also be furnished to a sentencing judge through counsels' sentencing submissions, by agreement between the prosecutor and the defence, or otherwise as contemplated under ss. 720-727 of the Code.
[124] In this case, minimal evidence and information was before the sentencing judge bearing on the respondent's prospects for remission or parole eligibility. The sentencing judge, of course, was aware that the respondent had pleaded guilty at a relatively early stage, thus saving Kaitlyn Ingram and her [page673] family the anguish of a potentially prolonged and emotionally difficult trial. The evidence also established that the respondent had accepted full responsibility for his actions, both in his communications with Kaitlyn and with the police, from the outset. Further, the respondent conveyed his remorse to the Ingram family at the sentencing hearing.
[125] More importantly, Crown counsel at trial (not counsel on appeal) acknowledged in her sentencing submissions that the respondent deserved credit on a 1.5:1 basis for much of his pre-trial detention. By her reference to the likelihood of early parole for the respondent, she also conceded, in effect, the respondent's good behaviour while in remand custody. Certainly, she did not suggest that the respondent's conduct would in any way disentitle him to earned remission or negatively affect his statutory release and parole eligibility. Before this court, the Crown acknowledges that it is appropriate that some credit be accorded to the respondent for his pre-sentence custody, at the rate of 1:1.
[126] In all these circumstances, I see no error in the sentencing judge's ultimate conclusion that the circumstances of this case justified the granting of enhanced credit to the respondent for his pre-sentence custody at the rate of 1.5:1. I would therefore defer to the sentencing judge's ruling on this issue.
VI. Disposition
[127] For the reasons given, I would dismiss the Crown's sentence appeal.
Appeal dismissed.
Notes
1 Order Fixing February 22, 2010 as the Date of the Coming into Force of the Act, SI/2010-9, (2010) C. Gaz. 11, 213 (Truth in Sentencing Act).
2 In the earlier decision of R. v. Mayers, [2011] B.C.J. No. 1677, 2011 BCCA 365, 310 B.C.A.C. 188, the British Columbia Court of Appeal declined to consider the interpretation of s. 719(3) and (3.1), the matter having been raised in that case for the first time on appeal. See, also, for a brief discussion of the issue, R. v. Lee, [2012] A.J. No. 41, 2012 ABCA 17, 524 A.R. 22, at paras. 71-72. In addition, the issue of the retrospective application of the Act has been considered, and rejected, by the Alberta Court of Appeal in R. v. Serdyuk, [2012] A.J. No. 673, 2012 ABCA 205, 533 A.R. 199.
3 In contrast, in Johnson, the accused brought an application asserting that s. 719(3) and (3.1) of the Code (which had gone into effect four days before the accused allegedly sold $20 worth of cocaine to an undercover police officer in Toronto) violated his constitutionally protected rights under ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. The accused argued that by reason of being held on remand, he would be treated disproportionately from an offender who was free on bail pending trial and sentence. The trial judge upheld the constitutionality of s. 719(3) and (3.1) on the basis that the loss of remission and parole eligibility during pre-sentence custody justified enhanced credit under s. 719(3.1), despite the widespread applicability of the loss of remission and parole eligibility for remand offenders throughout Canada.
4 Under s. 127(3) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, the statutory release date of an offender who is serving a penitentiary sentence is the day on which the offender completes two-thirds of the sentence. Under s. 120 of the same statute, an offender is eligible for full parole beginning one-third of the way through sentence or seven years of the sentence, whichever is lesser. By the combined effect of the rules governing statutory release and parole, an offender is eligible to be granted parole anywhere between one-third and two-thirds of the way through the completion of sentence. Earned remission, on the other hand, is governed by the Prisons and Reformatories Act, R.S.C. 1985, c. P-20. Generally, earned remission is available to an offender between one-third and two-thirds of the way through sentence, depending on the offender's behaviour while in custody and his or her rehabilitative prospects. An offender earns remission credit by obeying prison rules and by participating in available programs while incarcerated.
5 In their submissions, the parties refer, variously, to pre-trial and pre-sentence custody. In this case, Sean was sentenced on the same day as his trial. I therefore refer to the detention at issue as "pre-sentence custody" throughout these reasons.
6 The remaining provisions of the Act require that reasons be given for any credit granted for pre-sentence custody and stated in the record (s. 719(3.2)) and that the record and warrant of committal state the offence, the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited and the sentence imposed (s. 719(3.3)). The Act also provides that the failure to comply with these requirements does not affect the validity of the sentence imposed (s. 719(3.4)).
7 For the adoption of this approach in the context of legislation dealing with mandatory minimum sentences, see Wust, at para. 22.
8 Charter values regularly, and properly, inform the development of the common law. However, absent genuine ambiguity in the meaning of a statutory provision, the "Charter values" interpretive principle does not apply to construction of the provision in question.
9 Stonefish, at paras. 91-94, includes a detailed discussion of the type of evidence or information required to support a claim for enhanced credit for pre-sentence custody.
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