COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Akintunde, 2015 ONCA 597

DATE: 20150904

DOCKET: C57743

Blair, Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

George Akintunde

Appellant

George Akintude, in person

Matthew Gourlay, duty counsel

Vanita Goela, for the respondent

Heard: February 11, 2015

On appeal from the conviction entered by Justice Kofi Barnes of the Superior Court of Justice, dated June 1, 2013, sitting with a jury, and from the sentence imposed on August 16, 2013.

Tulloch J.A.:

A. Introduction

[1] This matter came before us as an inmate appeal in which the appellant raised a number of grounds. At the hearing, the appeal against the conviction was abandoned and the appellant argued the sentencing matter.

[2] The sentence appeal raises a discrete issue. The issue is whether an accused who has consented to the revocation of his bail and who does not bring a show cause hearing is disentitled from enhanced credit for pre-sentence custody by virtue of s. 719(3.1) of the Criminal Code, R.S.C., 1985, c. C-46. To answer this question, I will examine what it means for an accused to have been “detained in custody under” s. 524(8) of the Criminal Code.

[3] Section 719(3.1) provides that an accused who has been detained in custody under s. 524(8) of the Criminal Code is not entitled to 1.5 to 1 credit for time spent in pre-sentence custody. The relevant part of s. 524(8) is that when a judge finds an accused has contravened a term of his recognizance or committed an indictable offence while on release, the judge shall cancel the accused’s form of release and order the accused detained in custody. This will occur unless the accused shows cause as to why he or she should not be detained.

[4] The appellant breached a condition of his release. As a result, his bail was cancelled. He did not request a show cause hearing, and was detained until sentencing. The sentencing judge concluded that the appellant was detained under s. 524(8). He applied s. 719(3.1) and held the appellant was not entitled to 1.5 to 1 credit for the period he spent in custody following the revocation of his bail.

[5] The appellant argues the sentencing judge erred in concluding that he was ineligible for 1.5 to 1 credit. He argues that to be detained under s. 524(8), a judge must order the accused detained after a show cause hearing and that a cancellation of bail alone does not qualify. It is my view that the sentencing judge did not err. The appellant was not entitled to 1.5 to 1 credit because he was detained under s. 524(8). Accordingly, I would dismiss the appeal for the reasons below.

B. Facts

[6] The appellant, George Akintunde, was charged with importing heroin, conspiracy to import heroin, and two counts of possession of heroin for the purpose of trafficking. His wife was a co-accused. The appellant was prohibited from having contact with his wife by the terms of his recognizance. The appellant was convicted for breach of recognizance and his bail was revoked after being in contact his wife.

[7] The appellant consented to his detention. No show cause hearing was conducted, and he remained in custody until sentencing. The appellant was convicted on the importing and possession counts.

[8] At sentencing, the appellant’s eligibility for enhanced credit for certain periods of his pre-sentence custody was at issue. The period the appellant spent in custody prior to sentencing falls into four categories:

1. The period prior to the breach of recognizance;

2. The sentence for the breach of recognizance;

3. The period following the cancellation of his bail; and

4. The period following his conviction and prior to sentencing.

[9] Defence counsel requested that the appellant be given 1.5 to 1 credit for the entire period of pre-sentence custody. The Crown argued the appellant was not entitled to 1.5 to 1 credit for the period following the cancellation of his bail and before his conviction because he was detained under s. 524(8) of the Criminal Code and therefore fell into one of the exclusions set out in s. 719(3.1).

[10] The Crown had argued that the appellant was not in a neutral position simply because he chose to remain in custody and not to seek bail. He was in custody as a result of his own breach, and was not entitled to obtain the benefit of enhanced credit simply because he had not applied for bail, when he knew that in any event it was unlikely he would be successful.

[11] The sentencing judge accepted the Crown’s submission that the appellant was detained under s. 524(8) of the Criminal Code. The appellant was therefore not eligible for enhanced credit for the period following the cancellation of his bail and prior to his conviction.

[12] The sentencing judge gave the appellant 1.5 to 1 credit for the period before his bail was revoked, and for the period lasting from his conviction until sentencing. The judge stated that this period totalled 95 days, and applied a credit of 145.5 days. He then credited the appellant for the remaining time, 266 days, on a 1 to 1 basis. The total pre-sentence credit awarded to the appellant was 411 days.

[13] The judge sentenced the appellant to eight years on the importation charge, consecutive to a four year sentence for possession for the purpose of trafficking. Including the credit for pre-sentence custody, the appellant’s total sentence was ten years, ten months and nineteen days.

C. The Relevant statutory provisions

[14] In 2009, Parliament passed the Truth in Sentencing Act, S.C. 2009, c. 29 (“TISA”), which amended the Criminal Code to cap credit for pre-sentence custody at a maximum of 1.5 days for each day spent in custody. Section 719(3.1) of the Criminal Code provides that if the circumstances justify it, the maximum credit a judge may grant for pre-sentence custody is 1.5 to 1.

[15] Sections 719(3) and 719(3.1) state:

719. (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).

[16] Section 719(3.1) imposes limitations on when a court may grant 1.5 to 1 credit. First, enhanced credit will not be available if the accused was detained in custody due to his or her previous criminal convictions and the judge indicated as much on the record under s. 515(9.1). This will be referred to as “the criminal record exclusion”.

[17] Enhanced credit will also be unavailable if the person was “detained in custody under subsection 524(4) or (8)”. Generally, persons detained in custody under s. 524(4) or (8) are persons who have committed indictable offences while out on release or who have breached the conditions of their release. These exclusions are very similar, though they involve different procedures.

[18] The exclusion relating to s. 524(8) is at issue here, and will be referred to as “the misconduct on release exclusion”. Section 524(8) reads:

524. (8) Where an accused described in subsection (3), other than an accused to whom paragraph (a) of that subsection applies, is taken before the justice and the justice finds

(a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or

(b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,

he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10).

This section applies when an accused has been arrested under a warrant or by a peace officer in certain circumstances, and is taken before a justice for a hearing.

[19] Prior to these amendments, the Criminal Code did not impose any restrictions on enhanced credit. Offenders were generally given enhanced credit for two reasons: (1) pre-sentence custody is quantitatively more onerous than post-sentence custody because legislative provisions for parole and early release eligibility do not account for pre-sentence custody; and (2) pre-sentence custody is qualitatively more onerous than post-sentence custody because remand centres do not offer the same educational or rehabilitative programs and are often overcrowded: see R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at paras. 23-29.

D. The Parties’ Positions

[20] The appellant submits that for an accused to be “detained in custody under” s. 524(8), two steps must be met: (1) an accused’s prior form of release must be cancelled; and (2) the justice must order the accused be detained in custody. The accused is not detained under s. 524(8), according to the appellant, unless the accused has brought and failed at a show cause application because no separate order is issued until after such an application.

[21] The appellant relies on R. v. McDougall, 2014 MBPC 35, 307 Man. R. (2d) 303, leave to appeal to M.B.C.A. refused, 2014 MBCA 95, 310 Man. R. (2d) 187, to make this argument. I will refer to the appellant’s suggested interpretation as “the McDougall interpretation”.

[22] The Crown relies on a conflicting decision from the Court of Appeal for Yukon, R. v. Chambers, 2014 YKCA 13, 316 C.C.C. (3d) 44, leave to appeal refused, [2014] S.C.C.A. No. 53. I will refer to this interpretation as “the Chambers interpretation”.

[23] I would note that neither the sentencing judge in McDougall nor the parties to this appeal had the benefit of the Manitoba Court of Appeal’s reasons in R. v. Ibrahim, 2015 MBCA 62, [2015] M.J. No. 172.

E. Discussion

[24] The appellant’s argument requires this court to interpret both ss. 719(3.1) and 524(8). As mentioned, the main issue here is what it means for an accused to have been “detained in custody under” s. 524(8). Does this happen automatically when a prior form of release is cancelled under the circumstances described in that section, or is a failed show cause hearing required?

[25] In my view, the appellant was detained in custody under s. 524(8) even though he effectively consented to his detention. Below, I examine the text of ss. 719(3.1) and 524(8), the relationship between the criminal record exclusion and the misconduct on release exclusion, and Parliament’s intention in enacting the TISA. I then address which interpretation of the provisions is more consistent with the Supreme Court of Canada’s decision in Summers.

(1) Interpretation of Sections 719(3.1) and 524(8)

[26] The modern approach to the interpretation of statutes has been set out by the Supreme Court of Canada on many occasions, and was articulated by Elmer Driedger in Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983):

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.

(a) The Words of the Act in Context and in their Grammatical and Ordinary Sense

[27] The operative words in s. 719(3.1) are “detained in custody under” s. 524(8). To determine what is required for an accused to be “detained in custody under” that section, it is necessary to interpret both sections.

[28] In McDougall, the sentencing judge held that in Manitoba, it is common practice for the revocation of bail and an order of detention to be separate steps. An order of detention occurs after a show cause hearing. She concluded that both steps are required for an individual to be detained in custody under s. 524(8).

[29] The appellant takes up the reasoning in McDougall. He admits that when his bail was revoked pursuant to s. 524(8), he was, practically speaking, detained. The appellant argues, however, that because he never requested a show cause hearing, and was not ordered to be detained after such a hearing, he has not been detained under s. 524(8). He submits that the process of detaining an accused under that section involves two steps: first, the accused’s bail is revoked, and second, an order is made detaining the accused. According to the appellant, an order detaining the accused does not issue if the accused consents to his or her detention. He suggests that if both the revocation and a detention order have not been issued, an accused is not detained under s. 524(8).

[30] I reject this argument.

[31] In my view, the appellant’s contention that a separate detention order made following a show cause hearing is required ignores the logical implication of proceedings under s. 524(8) and the ordinary meaning of s. 719(3.1). His focus on a detention order is misplaced.

[32] Section 524(8) provides statutory authority for the cancellation of an accused’s prior form of release when the accused has committed an indictable offence or breached the terms of his or her release. When the accused’s prior form of release is cancelled, he or she will be automatically detained – a function of the reverse onus provided for in s. 524(8). That detention is provided for in and authorized by s. 524(8).

[33] Section 719(3.1) refers only to an accused who has been “detained in custody under” s. 524(8). It does not require that an accused be “ordered detained in custody under” s. 524(8).

[34] In my view, because the appellant’s prior form of release was cancelled under s. 524(8) – and he was detained as a result – he was detained under s. 524(8). Whether a separate order was issued at the time of the cancellation is, in my view, of no consequence given the logical consequences of proceeding under s. 524(8) and the ordinary meaning of s. 719(3.1).

[35] This issue was recently considered by the Manitoba Court of Appeal in Ibrahim. The accused in that case had consented to the revocation of all of his prior forms of release and did not apply for judicial interim release. At sentencing, he was credited for pre-sentence custody on a 1.5 to 1 basis. On appeal, the court held that the sentencing judge had erred in finding that an order of detention pursuant to s. 524(8) could not be made absent a show cause hearing.

[36] Cameron J.A. explained, at para. 7, “cancellation of a prior order of judicial interim release necessitates, by operation of law, an order of detention. Following an order of detention, an accused may choose to show cause why his or her release is justified on a reverse onus basis”.

[37] At para. 43, the court further held, “a plain reading of s. 524(8) indicates that an order of detention is mandatory upon cancellation of a recognizance”. This interpretation of the provision was supported by the grammatical structure of the statute, the historical consideration of the legislation as well as academic interpretation of the section, and was consistent with the overall provisions for judicial interim release found in the Code: see paras 43-52.

[38] The Manitoba Court of Appeal also cited the Court of Appeal for Yukon decision in Chambers. Mr. Chambers had consented to his remand after his prior form of release was revoked. In that case, Bauman C.J.B.C. similarly noted that s. 719(3.1) does not require an express order of detention under s. 524(8) after a show cause hearing, but rather that an accused be “detained in custody under” that section (at para. 52). Chief Justice Bauman questioned that if Mr. Chambers was not detained under that section, “by what authority was he detained?” (at para. 51). At para. 59 of his reasons, he accepted the Crown’s submission as follows:

Once the prosecution establishes that the statutory preconditions are met, the presiding justice must cancel the existing release and the accused is detained. The effect of a revocation of bail is immediate – no further order of the Court is required for the accused to be detained. This is because the revocation of bail under section 524(8), by itself, also reverses the onus and creates a presumption that the accused remain in custody. Unless and until the accused makes a successful application, he is detained under section 524(8) of the Criminal Code. At any point after the revocation of the prior release, the accused may be given a reasonable opportunity to show cause why his or her detention is not justified. The common practice of “consenting” to remand in these circumstances is only the deferral of the right, which may be exercised at any time, to show cause. Upon cause being shown, the presiding justice may make a further order under section 524(8) of the Criminal Code to detain the accused or release him under suitable conditions. Section 719(3.1) of the Criminal Code excludes from a person “detained” under section 524(8) and not “ordered detained” under the section.

[39] I agree with this reasoning. Section 524(8) provides the authority for the cancellation of an accused’s bail once certain preconditions are met. An accused can be detained under that section either as a result of the revocation of his or her prior form of release or, subsequently, as a result of an order made following a show cause hearing. In both cases, s. 524(8) provides the authority for the detention. Both types of detention fall within the plain meaning of “detained in custody under” s. 524(8), and both satisfy the exception to enhanced credit in s. 719(3.1).

(b) The Criminal Record and the Misconduct on Release Exclusion Scheme

[40] Section 719(3.1) sets out two situations where an accused will be precluded from obtaining enhanced credit. As discussed, the criminal record exclusion occurs when the accused is detained primarily on the basis of his or her prior criminal record, and the justice of the peace endorses the record accordingly in writing. The misconduct on release exclusion arises when the accused has committed an indictable offence or breached the conditions of his or her release, and is detained under s. 524(4) or (8) as a result.

[41] The sentencing judge in McDougall concluded that an accused who had consented to detention was not detained under s. 524(8) in part because she considered this consistent with the criminal record exclusion. If an accused with a significant record consents to detention, there will be no endorsement on the record, even if the accused would likely have been refused release on the basis of his or her convictions. The accused retains eligibility for enhanced credit. The sentencing judge reasoned that Parliament would not have intended to treat these two types of accused persons differently.

[42] With respect, I disagree with the sentencing judge’s reasoning in McDougall.

[43] First, the two exclusions deal with different situations: accused persons who have engaged in some form of misconduct while on release and those who are detained primarily as a result of their record. It is open to Parliament to treat these two groups differently. Parliament has in fact done so. For example, Parliament has required a written notation on the record for a person to be deprived of enhanced credit under the criminal record exclusion. No similar notation is required in the case of accused persons who engage in misconduct while on release.

[44] Second, under the criminal record exclusion, a show cause hearing is required to give the justice of the peace an opportunity to make the written endorsement. The misconduct on release exclusion contemplates that no show cause hearing may ever occur, as the burden is on the accused to bring a show cause hearing or remain in detention.

[45] In my view, the distinct exclusions set out in s. 719(3.1) are consistent with the overall scheme put in place by the TISA amendments.

(c) Parliament’s Intention

[46] Parliament’s intention in enacting the TISA amendments supports the Chambers interpretation of ss. 719(3.1) and 524(8). As Strathy J.A. observed in R. v. Safarzadeh-Markhali, 2014 ONCA 627, 122 O.R. (3d) 97, leave to appeal allowed, [2014] S.C.C.A. No. 489, at paras. 53-55:

The TISA reflected Parliament’s concern that sentences were too lenient, that allowances for pre-sentence custody were overly generous and that the method of calculating sentences was opaque and failed to explain how credit was being given for time spent in custody prior to sentence: see Summers, at paras. 52, 53; Carvery (NSCA), at para. 83.

Another concern was that some accused persons were “gaming the system”, by deliberately prolonging their time in pre-sentence custody, in order to increase the credit they received, thereby reducing the overall length of the custodial part of their sentences.… With credit for pre-sentence custody limited to 1.5:1, or even more so for 1:1, there would be no incentive for an accused to prolong the time spent in pre-sentence custody.

Another objective of the legislation … was to enhance public safety by keeping repeat offenders and those who violated their bail conditions in custody for longer periods, thereby punishing them for their conduct and making rehabilitative programs available to them while in jail. [See, also, Summers, at paras. 4, 51-58.]

[47] Parliament’s purposes in enacting the TISA suggest the McDougall interpretation is inconsistent with Parliament’s intention.

[48] The McDougall interpretation would permit accused persons to “game the system” by repeatedly consenting to detention and delaying any show cause hearing. This deliberate delay would preserve their eligibility for enhanced credit. As Bauman C.J.B.C. commented in Chambers: “to suggest that by the simple expedient of consenting to remand, an accused can take himself or herself beyond the reach of s. 719(3.1) invites the kind of manipulation by accused persons that the TISA amendments are generally directed against” (at para. 51). Under the Chambers interpretation, there is no incentive for an accused to delay seeking a show cause hearing or to consent to detention to preserve eligibility for enhanced credit.

[49] The McDougall interpretation would also weaken Parliament’s attempt at improving transparency in calculating sentences, as the ability of an accused person to avoid being included in the categories of offenders targeted by Parliament reduces transparency.

[50] Similarly, allowing an accused who has breached his or her bail conditions or committed an indictable offence while on release to determine his or her own eligibility for enhanced credit would undermine Parliament’s objective to keep these individuals in custody for longer periods.

[51] The ordinary meaning of the relevant provisions and Parliament’s purpose in enacting them militate against the McDougall interpretation favoured by the appellant, and, in my view, strongly favours the one adopted in Chambers and Ibrahim.

(2) Consistency with Summers

[52] The sentencing judge in McDougall adopted the interpretation she believed was more consistent with the Supreme Court’s reasoning in Summers. In my view, the reasoning in Summers does not assist the appellant.

[53] First, the sentencing judge in McDougall analogized from the reasoning in Summers that if Parliament had intended to limit the circumstances justifying enhanced credit, it would have done so expressly: see Summers, at paras. 55-57. She concluded that “if Parliament intended to give an interpretation to s. 524(8) that would alter the long-standing understanding and practise of allowing accused persons whose bail was revoked to apply for enhanced credit, Parliament would have amended the bail provisions” (at para. 32).

[54] With respect to the sentencing judge, in my view, Parliament was not required to amend the bail provisions. It amended the provisions dealing with enhanced credit and provided the express limitation that an accused will not be eligible for enhanced credit where he or she has been “detained in custody under” s. 524(8). This case is distinguishable from Summers.

(3) The Constitutionality Issue

[55] The appellant does not challenge the constitutionality of this exclusion. As I have concluded the exclusion is not ambiguous, it is unnecessary to resort to the interpretive principle that where a statutory provision is ambiguous, the interpretation more in line with the Canadian Charter of Rights and Freedoms is to be preferred.

F. DISPOSITION

[56] For the reasons above, I would dismiss the appeal.

Released: “MT” Sep 4, 2015

“M. Tulloch J.A.”

“I agree. R.A. Blair J.A.”

“I agree. C.W. Hourigan J.A.”