Her Majesty the Queen v. Slack

[Indexed as: R. v. Slack]

Ontario Reports

Court of Appeal for Ontario,

Cronk, LaForme and Lauwers JJ.A.

February 11, 2015

125 O.R. (3d) 60 | 2015 ONCA 94

Case Summary

Criminal law — Firearms offences — Sentence — Accused convicted of possession of loaded restricted firearm under s. 95(1) of Code and other weapons offences — Accused having lengthy criminal record that included prior conviction for s. 95(1) offence — Trial judge not erring in using unconstitutional mandatory minimum as starting point for "true crime" range of possession of firearms offences — Sentence of eight years' imprisonment affirmed on appeal — Criminal Code, R.S.C. 1985, c. C-46, s. 95(1).

Criminal law — Sentencing — Pre-trial custody — Trial judge erring in denying accused enhanced credit for pre-trial custody on basis of three incidents of relatively minor misconduct during pre-trial detention — Crown failing to demonstrate that accused's institutional misconduct would disentitle him to federal parole or statutory release.

The accused was convicted of possession of a loaded restricted firearm contrary to s. 95 of the Criminal Code and other offences. The firearm was readily accessible in an unlocked car, which the accused abandoned, leaving the engine running, in a public parking lot during daylight hours. The accused had a lengthy criminal record that included a prior conviction for an offence under s. 95 of the Code, for which he received a sentence of four years' imprisonment. He was on probation and subject to a firearms prohibition order at the time of the offences. The trial judge sentenced the accused to eight years' imprisonment for the firearms offences. She declined to give him enhanced credit for time spent in pre-trial custody on the basis of three incidents of misconduct while the accused was in custody. The accused appealed.

Held, the appeal should be allowed in part.

The trial judge erred in denying the accused enhanced credit for pre-trial custody on the basis of his institutional misconduct. The accused's pre-trial custody gave rise to the inference that he had lost eligibility for parole or statutory release, thus justifying enhanced credit. It fell to the Crown to counter that inference by demonstrating that the accused's misconduct while detained would disentitle him to parole or statutory release. Unlike the situation for provincially incarcerated offenders, the scheme pursuant to the Corrections and Conditional Release Act, S.C. 1992, c. 20 for dealing with relatively minor misconduct does not include denying an offender credit towards early release. The Crown failed to demonstrate that the accused's actions justified withholding enhanced credit for pre-trial custody. The accused was entitled to a credit at the rate of 1.5:1 for his 433 days of pre-trial custody.

The trial judge did not err by using the five-year mandatory minimum sentence for a second or subsequent conviction under s. 95 of the Code, which has been held to be unconstitutional, as a sentencing floor. The accused's conduct fell at the "true crime" end of the range of s. 95 offences and cried out for a substantial penitentiary sentence, higher than that imposed for his first s. 95 offence. [page61 ]The eight-year sentence fell within the appropriate range even in the absence of a mandatory minimum sentence.

R. v. Summers, [2014] 1 S.C.R. 575, [2014] S.C.J. No. 26, 2014 SCC 26, 2014EXP-1197, J.E. 2014-658, EYB 2014-235729, 456 N.R. 1, 316 O.A.C. 349, 308 C.C.C. (3d) 471, 307 C.R.R. (2d) 96, 371 D.L.R. (4th) 581, 9 C.R. (7th) 223, 112 W.C.B. (2d) 393, affg (2013), 114 O.R. (3d) 641, [2013] O.J. No. 1068, 2013 ONCA 147, 304 O.A.C. 322, 279 C.R.R. (2d) 289, 297 C.C.C. (3d) 166, 3 C.R. (7th) 125, 105 W.C.B. (2d) 789, apld

R. v. Charles, [2015] S.C.J. No. 15 (sub nom. R. v. Nur), 2015 SCC 15, 2015EXP-1133, J.E. 2015-622, EYB 2015-250517, affg (2013), 117 O.R. (3d) 456, [2013] O.J. No. 5115, 2013 ONCA 681, 296 C.R.R. (2d) 72, 311 O.A.C. 316, 5 C.R. (7th) 370, 303 C.C.C. (3d) 352, 110 W.C.B. (2d) 264; R. v. Nur, [2015] S.C.J. No. 15, 2015 SCC 15, 2015EXP-1133, J.E. 2015-622, EYB 2015-250517, affg (2013), 117 O.R. (3d) 401, [2013] O.J. No. 5120, 2013 ONCA 677, 296 C.R.R. (2d) 21, 303 C.C.C. (3d) 474, 311 O.A.C. 244, 5 C.R. (7th) 292, consd

Other cases referred to

R. v. Houlder, [2014] O.J. No. 2235, 2014 ONCA 372; R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76, 44 D.L.R. (3d) 351, 1 N.R. 322, 15 C.C.C. (2d) 524, 26 C.R.N.S. 1; 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

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 12

Corrections and Conditional Release Act, S.C. 1992, c. 20 [as am.], ss. 44(1) [as am.], 120 [as am.], 127(3), 129, 130, Sch. II [as am.]

Criminal Code, R.S.C. 1985, c. C-46, ss. 91(1) [as am.], 95(1) [as am.], (2) [as am.], (a)(i), (ii)

Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, s. 28(1) [as am.]

Prisons and Reformatories Act, R.S.C. 1985, c. P-20, s. 6 [as am.]

APPEAL by the accused from the sentence imposed on April 25, 2013 by Benotto J. of the Superior Court of Justice, sitting without a jury.

Erika Chozik, for appellant.

Cate Martell, for respondent.

The judgment of the court was delivered by

CRONK J.A.: —

Introduction

[1] Following a trial by judge alone, the appellant was convicted of a series of weapons-related offences, including possession of a loaded restricted firearm, contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, c. C-46 and unauthorized possession of a firearm, contrary to s. 91(1) of the Criminal Code. He was also found in breach of the terms of his probation. The appellant's [page62 ]s. 91(1) conviction was stayed in accordance with R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76.

[2] The appellant was sentenced to eight years' imprisonment for his weapons-related convictions and two years' imprisonment for his breaches of probation, less credit at the rate of 1:1 for 433 days of pre-sentence custody. He now appeals against his sentences.

[3] The sentencing judge recognized that enhanced credit for pre-sentence custody at a rate of up to 1.5:1 may be granted in a proper case in order to achieve what she termed "a fair and just sentence". She reviewed the conditions of the appellant's pre-sentence detention and his conduct while detained, and referenced this court's holding in R. v. Summers (2013), 114 O.R. (3d) 641, [2013] O.J. No. 1068, 2013 ONCA 147, affd [2014] 1 S.C.R. 575, [2014] S.C.J. No. 26, 2014 SCC 26, that loss of eligibility for early release constitutes circumstances that may justify enhanced credit for pre-sentence custody.

[4] However, based on the appellant's institutional conduct, the sentencing judge declined to grant enhanced credit for his pre-sentence custody. She reasoned as follows:

I now turn to the issue of enhanced credit. As of April 5, 2013 -- I have not done the calculation to date -- Mr. Slack has spent 433 days in custody. During that time, he had 26 days alone in his cell, 369 days with one cellmate and 38 days with two cellmates. In addition, he has had slightly less than the average time outside. The average time was 59% of the days and he was outside for 54%. There were 9 full day lock downs during his time in custody.

As stated in R. v. Summers, a court is justified in granting credit of up to [1:1.5] days in order to achieve a fair and just sanction.

The difficulty here is that Mr. Slack has three misconducts in his record during his time in custody: March 20th, 2012, March 12th, 2012 and October 31st, 2012. Although the circumstances which could give rise to enhanced credit include ineligibility for remission and parole while in custody, the conduct during his custodial time, in my view has caused me not to grant the enhanced credit. I do not consider enhanced credit necessary to [achieve] a fair sanction.

Grounds of Appeal

[5] The appellant raises two grounds of appeal. First, he submits that the sentencing judge erred by refusing to grant enhanced credit at the rate of 1.5:1 for his pre-sentence custody.

[6] Second, the appellant argues that the sentencing judge erred by using, as a sentencing floor, the five-year mandatory minimum sentence set out in s. 95(2) of the Criminal Code, which this court held to be unconstitutional in the companion cases of R. v. Nur (2013), 117 O.R. (3d) 401, [2013] O.J. No. 5120, 2013 ONCA 677, affd [2015] S.C.J. No. 15, 2015 SCC 15, and R. v. Charles (2013), 117 O.R. (3d) 456, [2013] O.J. No. 5115, 2013 ONCA 681, affd [2015] S.C.J. No. 15, 2015 SCC 15. [page63 ]

Discussion

(1) Credit for pre-sentence custody

[7] The appellant argues that the sentencing judge erred by refusing to grant enhanced credit for his pre-sentence custody based on minor institutional misconduct. He submits that under the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("CCRA"), parole becomes available to a federal inmate, like the appellant, after one-third of the sentence has been served (s. 120) and statutory release is available once two-thirds of the sentence has been served (s. 127(3)). The appellant contends that the sentencing judge's inference that his institutional misconduct would disentitle him from parole or, more importantly, statutory release is unsustainable.

[8] For the reasons that follow, I agree with this submission.

[9] A sentencing judge's decision whether to grant enhanced credit for pre-sentence custody is a discretionary matter. It therefore attracts a high degree of deference from a reviewing court. See, for example, R. v. Wust, [2000] 1 S.C.R. 455, [2000] S.C.J. No. 19, 2000 SCC 18, at paras. 44-45. In this case, however, it is my view that the sentencing judge erred in principle in determining the amount of credit to be accorded to the appellant for his pre-sentence custody. Accordingly, the deference that would otherwise be accorded to her ruling on this issue is displaced. I say this for the following reasons.

[10] First, the sentencing judge did not have the benefit of the Supreme Court's decision in R. v. Summers, supra. That decision lays to rest any suggestion that the loss of eligibility for early release cannot, standing alone, warrant enhanced credit for pre-sentence custody. Justice Karakatsanis, writing for a unanimous court, held, at para. 71, that enhanced credit for pre-sentence custody will generally be justified to account for the loss of early release, even if the conditions of detention are not particularly harsh, and parole is unlikely. However, she also held, at para. 75, that, "If it appears to a sentencing judge that an offender will be denied early release, there is no reason to assign enhanced credit for the meaningless lost opportunity."

[11] Further, the fact of pre-sentence custody is generally sufficient to give rise to an inference that the offender has lost eligibility for parole or early release, thereby justifying enhanced credit. It then falls to the Crown to challenge this inference, for example, by demonstrating that the offender's bad conduct while in jail renders it unlikely that he or she will be granted parole or early release: Summers, at para. 79. See, also, R. v. Houlder, [2014] O.J. No. 2235, 2014 ONCA 372, at para. 2. [page64 ]

[12] In this case, the appellant's pre-sentence custody gave rise to the inference that he had lost eligibility for parole or statutory release, thus justifying enhanced credit. It therefore fell to the Crown to counter this inference by demonstrating that the appellant's bad conduct while detained would disentitle him to parole or statutory release.

[13] The appellant's conduct during pre-sentence detention included three documented incidents of misconduct. On one occasion, the appellant was charged with possession of contraband when the smell of marijuana was detected coming from his cell, which he occupied with another inmate. No marijuana was found on the appellant's person, and he was not seen using the drug. The remaining two incidents involved a second charge of possession of contraband, and making a gross insult at another person. There was no other evidence before the sentencing judge concerning the nature of or the circumstances surrounding these two incidents.

[14] The sentencing judge denied enhanced credit for the appellant's pre-sentence custody based solely on the evidence of the appellant's institutional misconduct. And it is here, with respect, that I conclude the sentencing judge fell into error. In my view, given the nature of the thin record of institutional misconduct by the appellant, it cannot be said that the Crown demonstrated that the appellant's institutional misconduct would disentitle him to parole or statutory release.

[15] There is no dispute that enhanced credit for pre-sentence custody may be denied when detention was a result of an offender's bad conduct, or where it is likely that the offender will not obtain either early release or parole: Summers, at para. 71.

[16] However, unlike provincially incarcerated offenders who "earn" statutory remission for good behaviour, under s. 127(3) of the CCRA, a federal offender is entitled to statutory release after he or she has served two-thirds of their sentence unless the National Parole Board makes a contrary order in accordance with the CCRA. The entitlement to statutory release is not discretionary, nor is it conferred by the parole board. Further, the authority to deny statutory release is narrow: statutory release may be denied only where it is determined at a detention hearing that the offender, if released, is likely to commit an offence causing harm or death, a sexual offence involving a child or a serious drug offence listed in Sch. II to the CCRA:[^1] CCRA, ss. 129 and 130. [page65 ]

[17] Furthermore, in contrast to the applicable regime for provincially incarcerated inmates established in Ontario by s. 28(1) of the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22 and s. 6 of the Prisons and Reformatories Act, R.S.C. 1985, c. P-20, under the CCRA loss of credit towards early release is not an identified sanction that may be imposed for institutional misconduct. Rather, after being found guilty of a disciplinary offence, a federal offender is liable to one or more of the following punishments: (1) a warning; (2) a reprimand; (3) a loss of privileges; (4) a restitution order; (5) a fine; (6) performance of extra duties; and (7) segregation: CCRA, s. 44(1).

[18] Thus, the CCRA does not contemplate the detention of a federally incarcerated offender during his or her period of statutory release based only on minor institutional infractions.

[19] In this case, the evidence of the appellant's institutional misconduct did not reasonably support the inference that he would likely be denied parole or statutory release based on bad conduct. The limited record before the sentencing judge concerning the appellant's conduct in jail established only a minor instance of misconduct -- the possession of marijuana based on the smell of that drug emanating from a cell occupied by the appellant with another offender. Nothing in that incident or in the two other generally unparticularized incidents of misconduct established reasonable grounds to believe that the appellant, during the period of his statutory release, would commit an offence of the type envisaged under ss. 129 and 130 of the CCRA. Nor was the loss of statutory release an available punishment for the appellant's reported incidents of misconduct.

[20] In short, the evidence of the appellant's minor misconduct while in pre-sentence custody did not support the inference that his right to statutory release would or could be revoked. As a result, the refusal of enhanced credit for the appellant's pre-sentence custody on the ground of his institutional misconduct was unjustifiable and the sentencing judge's denial of enhanced credit solely on this basis cannot stand.

(2) Sentencing floor

[21] I turn now to the appellant's submission that the sentencing judge erred by using the five-year mandatory minimum sentence set out in s. 95(2) of the Criminal Code as a sentencing "floor". I would reject this submission.

[22] This court's decisions in Nur and Charles were released after the date of the sentencing hearing in this case. In Nur, this court declared the mandatory three-year minimum sentence provided for under s. 95(2) (a)(i) of the Criminal Code for a first [page66 ]conviction under s. 95(1) of no force or effect on the basis that the mandatory minimum in question unjustifiably violated s. 12 of the Canadian Charter of Rights and Freedoms. In the companion case of Charles, the mandatory five-year sentence of imprisonment under s. 95(2) (a)(ii) of the Criminal Code for a "second or subsequent" conviction under s. 95(1) was struck down on the same basis.

[23] Nothing in Nur or Charles displaces the developed sentencing range applicable to offenders convicted of a second or subsequent s. 95(1) offence. Both Nur and Charles affirm that offenders convicted of "truly criminal conduct" in relation to firearms must receive exemplary sentences that emphasize deterrence and denunciation.

[24] This is such a case. This was the appellant's second conviction for a s. 95(1) offence. On his first conviction, he received a sentence of four years in jail for the possession charge and nine months in jail, consecutive, for breaching a prohibition order and recognizance. The appellant has a lengthy criminal record, consisting of 18 prior criminal convictions, including convictions for using an imitation firearm in the commission of a robbery, assault, trafficking in a scheduled substance, breaching a firearm prohibition order, and possessing a prohibited or restricted firearm with readily accessible ammunition. Moreover, at the time of the instant offences, the appellant was on probation and subject to an order prohibiting him from possessing a firearm or ammunition.

[25] In addition, the appellant was in unauthorized possession of a loaded restricted firearm in circumstances that posed a real and immediate danger to the public. The loaded firearm was readily accessible in an unlocked car, which the appellant abandoned, leaving the engine running, in a public parking lot during daylight hours.

[26] Given the appellant's serious and lengthy prior record, which included crimes of violence and multiple weapons-related offences, the serious nature of the predicate offences, and the four-year sentence of imprisonment imposed for his first s. 95(1) offence, the appellant's conduct can only be viewed as falling at the "true crime" end of s. 95 offences discussed in Nur and Charles. The offences at issue cried out for a substantial penitentiary sentence, higher than the sentence imposed for the appellant's first s. 95(1) offence.

[27] There were also several aggravating features that compelled a sentence closer to the high end of the range. These included:

-- the firearm was loaded; [page67 ]

the firearm was found in an unlocked car in a public parking lot during the daytime. The car's engine had been left running;

this was not merely a regulatory or licensing offence. The appellant was not authorized to possess a firearm under any circumstances;

the appellant fled the scene when a police officer told him to move his car;

after abandoning the car, the appellant telephoned a friend, who had rented the car for him, and told her to report the car as stolen; and

the appellant's criminal record, described above, reflects a consistent pattern of criminal conduct.

[28] In all these circumstances, I see no basis for appellate interference with the eight-year jail sentence imposed by the sentencing judge for the appellant's weapons-related convictions. Given the circumstances of these offences and this offender, a sentence of eight years' imprisonment was appropriate and within the applicable range even in the absence of the mandatory minimum.

Disposition

[29] For the reasons given, I would allow the appellant's sentence appeal in part, by setting aside the credit granted by the sentencing judge for the appellant's pre-sentence custody and substituting in its stead enhanced credit at the rate of 1.5:1 for the appellant's 433 days of pre-sentence custody. In all other respects, I would dismiss the appeal.

Appeal allowed in part.

Notes

[^1]: Schedule II to the CCRA sets out specific drug offences, prosecuted by indictment, including trafficking, importing and exporting, cultivation, possession of property obtained by certain crimes and the laundering of proceeds of specific crimes.

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