Her Majesty the Queen v. Barnett

[Indexed as: R. v. Barnett]

Ontario Reports

Court of Appeal for Ontario

Doherty, LaForme and Rouleau JJ.A.

November 23, 2017

138 O.R. (3d) 401 | 2017 ONCA 897

Case Summary

Criminal law — Sentencing — Pre-trial custody

The accused was released on bail after arrest for robbery and related offences. While on bail, he committed the offence of procuring a person to provide sexual services (the "second offence"). He was denied bail for that offence. Bail on the first offences was never revoked. The accused was convicted of the robbery offences. Before he was sentenced for those offences, he pleaded guilty to the second offence and was sentenced to one day in jail in addition to 240 days of the 664 days of pre-trial custody which he had served to that point. When sentencing the accused for the robbery offences, the trial judge gave the accused credit for the remaining 424 days of his pre-trial custody, credited at 629 days. The Crown appealed the sentence. The sole issue on appeal was whether the trial judge erred by granting credit for pre-trial custody.

Held: The appeal should be dismissed.

Sections 719(3) and (3.1) of the Criminal Code do not limit consideration of pre-trial custody only to the offence that was the immediate trigger of the detention. Rather, the court must assess whether a sufficient link exists between the pre-trial custody for which credit is sought and the offence or offences for which the offender is being sentenced, so as to meet the "as a result" requirement in s. 719(3). Even where, as here, the detention followed a later charge, the circumstances may be such that the later detention can nonetheless be considered to be "as a result" of both the earlier and the triggering offences. In this case, the robbery offences had some link to the decision of the justice of the peace not to grant bail on the second offence. That refusal, combined with other factors such as the significant length of the pre-trial custody and the fact that the robbery offences were the most serious, made it reasonable for the trial judge to view the inability to obtain bail on the second offence as being linked to or resulting at least in part from the robbery offences. The trial judge was not barred from applying pre-trial custody to the robbery offences because the accused did not seek to have his bail on those offences revoked. It would be a waste of court resources to require an offender to bring such an application. For the same reason, an offender's failure to seek bail on the second set of charges does not necessarily bar the application of pre-trial custody to the sentence for the first set of charges. It is only one factor in the court's assessment of the "as a result" requirement. The onus will be on the accused to show the connection and that s. 719(3) applies, which it may do by agreement of counsel, by filing a transcript of reasons for detention or of a statement made by counsel or the accused after subsequent offence that bail not being sought because accused was on bail for earlier offences when current offences took place or by calling evidence.

APPEAL by the Crown from the sentence imposed on August 23, 2016 by M. Brown J. of the Superior Court of Justice.

Counsel:

Davin Michael Garg, for appellant Her Majesty the Queen.

Mark C. Halfyard and Breana Vandebeek, for respondent Antonio Barnett.

The judgment of the court was delivered by

DOHERTY and ROULEAU JJ.A.:

A. Overview

[1] Antonio Barnett, the respondent, was arrested for robbery and related charges. While on bail prior to trial, he committed other offences for which he was detained in custody. At sentencing for the robbery charges, the judge gave the respondent credit for some of the pre-sentence custody accumulated following this detention.

[2] The Crown seeks leave to appeal sentence, arguing that the sentencing judge erred in crediting the appellant with pre-sentence custody incurred following his detention for a later, unrelated offence. In the Crown's submission, neither ss. 719(3) and (3.1) nor 726.1 of the Criminal Code, R.S.C. 1985, c. C-46 allow credit for pre-sentence custody on the robbery charge. It argued that credit for pre-sentence custody accumulated as a result of later charges cannot be used to reduce a sentence on an earlier set of charges for which bail was granted.

[3] The fact pattern presented in this case is not uncommon. Accused persons who are in custody are often facing more than one set of charges. Different sets of charges will often be disposed of at different times by different trial judges. It is important that sentencing judges understand the extent to which the accused's pre-sentence custody can be taken into account when imposing sentence in respect of one or the other of the sets of charges faced by the accused.

[4] This court has considered sentence appeals arising out of the same or very similar circumstances as are presented in this case. The arguments on this appeal suggest that the prior decisions of the court have left some uncertainty as to when and how a trial judge may take into account a period of pre-sentence incarceration, and the interplay between ss. 719(3), (3.1) and 726.1. Because the situation arises with such regularity and impacts so directly on the liberty of the subject, we think it important that we clarify the manner in which trial judges can have regard to pre-sentence incarceration.

[5] In these reasons, we will address the proper interpretation of ss. 719(3), (3.1) and 726.1. As we will explain, s. 719(3) and (3.1) were properly engaged in the circumstances of this case. The respondent's pre-sentence custody was properly regarded "as a result of" both his robbery charge and the later charges. We would therefore dismiss the appeal.

B. Facts

[6] On June 18, 2013, Mr. Barnett was arrested for robbery and assault (the "first offences"). He was released on bail the next day.

[7] While on bail, Mr. Barnett committed the offence of procuring a person to provide sexual services (the "second offence"). He was arrested for that offence on October 10, 2014. He was denied bail for this second offence. Bail on the first offences was never revoked.

[8] While in custody for this second offence, the respondent committed perjury (the "third offence"). He was arrested for this offence on December 3, 2014, while in custody. He did not seek bail.

[9] On April 27, 2016, after trial on the first offences, Mr. Barnett and his co-accused were convicted as joint principals of robbery and assault causing bodily harm.

[10] Before his sentencing for these offences, Mr. Barnett pleaded guilty to the second offence on August 2, 2016. For that offence, he was sentenced to one day in jail in addition to 240 days of pre-sentence custody, credited at 360 days.

[11] Three weeks later, on August 23, 2016, Mr. Barnett was sentenced for the first offences. At the sentencing hearing, the parties agreed that, as of August 2, 2016, Mr. Barnett had accumulated 664 days of pre-sentence custody. After deducting the 240 days accounted for in the sentencing on the second offence, Mr. Barnett was left with 424 days of pre-sentence custody. The sentencing judge therefore sentenced him to one day in jail in addition to the 424 days of pre-sentence custody, credited at 629 days, for a total sentence of 630 days. This sentence is the subject of the present appeal.

[12] Mr. Barnett later pleaded guilty to the third offence, perjury. For that offence, he was sentenced on January 4, 2017, to four and a half months in jail in addition to five months of pre-sentence custody (August 2, 2016--January 4, 2017), credited at seven and a half months.

C. Decision Below

[13] At the sentencing for the first offences, the Crown argued that none of the time spent in custody following Mr. Barnett's arrest and denial of bail on the second offence was available to be credited against a sentence for the first offences. This was because Mr. Barnett had been awarded bail on the first offences and still faced outstanding charges for the third offence, perjury, for which he was also in custody.

[14] The sentencing judge disagreed. The fact that the perjury charge was outstanding was irrelevant in his view. Relying on R. v. Reid, R. v. Tsai and R. v. G. (K.), he concluded that the remaining 424 days of pre-sentence custody could and should be credited to Mr. Barnett. The sentencing judge explained that Mr. Barnett's pre-sentence custody was relevant information that could be taken into account pursuant to s. 726.1. He found that Mr. Barnett was entitled to credit of 424 days of pre-sentence custody on an enhanced basis equivalent to 629 days, at a rate of slightly less than 1.5:1.

D. Issue

[15] The sole issue on this appeal is whether the sentencing judge erred by granting credit for pre-sentence custody served following Mr. Barnett's arrest and denial of bail on the second offence.

E. Arguments

[16] On appeal, the Crown argues that the trial judge's reliance on s. 726.1 as the basis for crediting Mr. Barnett with the equivalent of 629 days of custody was an error. Relying on s. 726.1 circumvents s. 719(3) and (3.1), while distorting the sentencing regime. In the circumstances of this case, granting credit for pre-sentence custody served as a result of later unrelated charges amounted to allowing an accused to bank time contrary to R. v. Wilson.

[17] The Crown explains that the sentencing judge's use of Mr. Barnett's pre-sentence custody to reduce his sentence for the offences was not and could not be justified by s. 719(3) and (3.1). Those sections provide that in order to be used in fashioning a sentence, time spent in custody must have been "as a result" of the offence for which the offender is being sentenced.

[18] In the Crown's submission, all but two days of the pre-sentence custody at issue was "as a result of" the arrest and denial of bail on the second offence. Those two days were spent in custody on the first offences before Mr. Barnett was granted bail. The balance of the pre-sentence custody followed his arrest on the second offence and could only be used in fashioning the sentence for the second offence.

[19] The Crown argues that it would be an error and improper to give credit for pre-sentence custody in sentencing on the first offences under s. 726.1 when s. 719(3) and (3.1) do not allow it.

[20] In the result, the Crown submits that the sentence should be varied to 627 days of incarceration after giving a three-day credit for the two days of pre-sentence custody to achieve the 630-day sentence. The Crown acknowledges that, had this sentence been imposed at the time, Mr. Barnett would have had 422 days of pre-sentence custody remaining. This time would have been available to be applied as credit against the sentence imposed for the third offence, reducing it from 135 days to 0. It follows, therefore, that this court should order Mr. Barnett's re-incarceration for 492 days, i.e., the 627-day sentence less the 135-day sentence for the third offence that would not have been imposed but has already been served.

F. Analysis

[21] Sections 719(3), (3.1) and 726.1 of the Criminal Code read as follows:

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).

726.1 In determining the sentence, a court shall consider any relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or the offender.

[22] Before examining each provision, we will address the Crown's argument that the trial judge relied only on s. 726.1. We read the trial judge's reasons as reflecting reliance on both ss. 726.1, and 719(3) and (3.1). He used both sections to support his conclusion that 424 days of Mr. Barnett's pre-sentence custody for the second offence could be applied in reduction of his sentence for the first offences. We reach that conclusion for two reasons.

[23] First, the sentencing judge specifically referenced three cases in support of his decision. All three can be read as supporting the judge's reliance on both s. 726.1 and on s. 719(3) and (3.1). G. (K.) involved the sentencing of an offender in circumstances somewhat analogous to those of the present case. The judge in that case determined that although the pre-sentence custody followed the offender's detention on a later set of charges, it was nonetheless available to be applied in reduction of the sentence for the earlier offence for which the offender was being sentenced. The judge found that the authority for this was found in both ss. 726.1 and 719(3): G. (K.), at para. 44.

[24] The other cases the sentencing judge referred to were Reid and Tsai. In those cases, the court only referred to s. 726.1 as a basis for allowing credit to an offender for pre-sentence custody served following a later set of charges. At para. 50 of Wilson, this court explained that in those cases the time spent in pre-sentence custody "could be attributed to the first set of offences". In other words, in both those cases, s. 719(3) and (3.1) were an alternate basis available for allowing credit.

[25] Second, the sentencing judge found that Mr. Barnett was "entitled to credit for 424 days in pre-trial custody". In other words, the pre-trial custody was more than a consideration under s. 726.1; it was credit that could be applied on a 1.5:1 basis. This is the language and amount normally associated with s. 719(3) and (3.1).

[26] We turn now to the interpretation of s. 719(3) and (3.1). The Crown maintains that these sections strictly limit a sentencing judge's ability to take pre-sentence custody into account. Only pre-sentence custody served "as a result of" the offence or offences for which the offender is being sentenced can be applied as credit. In the Crown's submission, virtually all of Mr. Barnett's pre-sentence custody did not qualify as pre-sentence custody served "as a result of" the first offences because it was served following his arrest for the second offence.

[27] We disagree. We do not read s. 719(3) and (3.1) as limiting consideration of pre-sentence custody only with respect to the offence that was the immediate trigger of the detention. Rather, the court is to assess whether a sufficient link exists between the pre-sentence detention for which credit is sought and the offence or offences for which the offender is being sentenced so as to meet the "as a result" requirement of s. 719(3). Even where, as here, the detention followed a later charge, the circumstances may be such that this later detention can nonetheless be considered to be "as a result" of both the earlier and the triggering offences.

[28] It would be artificial to restrict a sentencing judge's ability to apply pre-sentence custody to only those charges that are the immediate trigger of the detention. Judges are regularly called upon to sentence offenders who are facing different sets of charges and who obtained bail on the initial set of charges, but were remanded in custody on the later charges. In such cases, legitimate questions will arise as to whether the pre-sentence custody can be said to be "as a result of" each of the various charges the offender is facing. In many cases, common sense will dictate that the offender did not apply for, or was denied, bail on the second set of charges at least in part because of the totality of the charges outstanding, or because he had been on bail on the prior charges. In those circumstances, it does not stretch the language of s. 719(3) to describe the pre-sentence custody as being "a result of" both sets of charges.

[29] The expression "as a result of" used in s. 719(3) has been given various interpretations. In R. v. Wust, at para. 3, the Supreme Court of Canada referred to it as meaning "in relation to" an offence. In R. v. Mills, at para. 33, the British Columbia Court of Appeal considered whether the time spent in pre-sentence custody was "on account of" the offence. In R. v. McDonald, at para. 65, this court viewed it as encompassing pre-sentence custody that "was for the [...] offence": see, also, R. v. Wilson. Finally, in R. v. Thomas, at para. 9, this court referred to the need to show a "proven link between [the detention] and the charges".

[30] What we draw from the case law is that s. 719(3) and (3.1) require that there be some causal connection, a sufficient link or relation between the offence for which the offender is being sentenced and the pre-sentence custody. That relation or link can exist with more than one offence. It is not limited to the offence that directly triggered the detention, but will include offences that contributed to the denial of bail or, in the trial judge's assessment, factored into the offender's decision to not seek bail on the charges that triggered the detention order.

[31] There is no strict rule dictating what constitutes a sufficient link or relationship between the given charge and the pre-sentence custody so as to meet the "as a result of" standard. The sentencing judge will take into account relevant factors that might include the reasons for bail having been granted on the first set of offences and denied for the second set of offences; whether bail was sought on the later offences; whether there has been revocation of the bail on the first set of offences; the impact if any of the reverse onus provisions of ss. 515(6) or 522(2) of the Criminal Code; whether subsequent charges remain outstanding, have been withdrawn or stayed; the amount of pre-sentence custody accumulated; the nature and seriousness of the various charges; and the relationship, if any, that charges have to one another. In sum, the sentencing judge must be satisfied that the offences upon which he is sentencing the accused have some meaningful causative connection to the accused's pre-sentence custody.

[32] The inquiry into the connection between the charge on which an accused is being sentenced and the reasons for pre-sentence custody should not become complicated and unnecessarily adversarial. The Crown should acknowledge the connection if that connection is clear on a fair assessment of the situation. Defence counsel should also be allowed to advise the court of relevant matters such as the reasons bail was not sought in respect of subsequent charges. In some cases, the defence will have to call evidence to establish the necessary connection. A transcript of the reasons for detention may serve that purpose in some cases. Ultimately, where the connection between the custody and the charge on which the accused is being sentenced cannot be readily inferred from the circumstances, the onus will be on the accused to show that the connection exists and that s. 719(3) applies: R. v. Perkins, at para. 32.

[33] We do not agree with the Crown that our approach to s. 719(3) and (3.1) is contrary to the majority opinion in Wilson, in that it permits an accused to "bank" time spent in custody. In Wilson, the court was dealing with a situation in which the appellant sought credit for time he spent serving a sentence imposed on an unrelated conviction. The appellant had successfully appealed the conviction on that unrelated offence. He asked this court to reduce the sentence under appeal by treating the sentence served as a result of the wrongful conviction as being equivalent to pre-sentence custody. This court rejected the appeal on the basis that it would amount to allowing banking of time spent in custody. This court was not dealing with pre-sentence custody, but rather with time served following a totally unrelated conviction.

[34] The interpretation of s. 719(3) and (3.1) we propose better reflects that "dead time is real time", as Arbour J. explained with reference to pre-sentence custody in Wust, at para. 45. In other words, pre-sentence custody is jail and is to be perceived as such for sentencing purposes.

[35] If the Crown's interpretation of s. 719(3) and (3.1) is applied to this case, Mr. Barnett will have to be re-incarcerated for an additional 491 days. This despite his having served almost a year of pre-sentence custody while awaiting his trial on the first offences (and the second and third offences) and for which he will receive no credit.

[36] The Crown's position also produces results that seem arbitrary. On the Crown's analysis, the order in which Mr. Barnett committed his offences had a significant impact on the total amount of time he must spend in jail as a result of the offences. Had he committed the more serious charge (robbery) after he had been released on bail on the less serious charge (procuring), s. 719(3) and (3.1) would have been available to significantly reduce Mr. Barnett's sentence on the robbery charge. It is not apparent to us why the order in which the offences occurred should have such a potent impact on the total time he spends in custody on the charges.

[37] This is not to say that all of an offender's time spent in custody must be available as credit for any given conviction. There will be cases when an offender has spent time in jail in excess of what should have been the case if the system had worked expeditiously and flawlessly and that time will not be available as a credit: Wilson, at para. 43. This can occur, for example, where a conviction is set aside as in Wilson, where time is spent in pre-sentence custody but there is no conviction, or where the sentence imposed following conviction is less than the accumulated pre-sentence custody.

[38] However, an interpretation of s. 719(3) and (3.1) that reduces the likelihood of detention that ultimately proves to be unwarranted is to be favoured. As Iacobucci J. wrote in R. v. Hall, at para. 47:

Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.

[39] The narrow interpretation of s. 719(3) and (3.1) advanced by the Crown would, as in this case, lead to a significant increase in the situations in which an accused would not receive credit for time spent in custody prior to sentencing. In our view, that interpretation undermines the fairness of the sentencing process and does not advance any of the principles of sentencing.

[40] We turn now to s. 726.1. The section is a statutory statement of the self-evident -- the court should consider "any relevant information" in determining the fit sentence. An accused's pre-sentence incarceration may be "relevant information".

[41] For example, assume an accused young offender is being sentenced. She has spent six months in custody prior to sentencing, but that custody is not "as a result of" the offences on which she is being sentenced. The trial judge hears evidence that the time spent in custody has caused a very real change in the accused's attitude. She now understands the consequences of her actions and is determined to straighten herself out. The trial judge may determine that specific deterrence is the key principle of sentence in this particular case. In deciding whether specific deterrence requires further incarceration and, if so, how long the sentence should be, the trial judge is entitled to take the six months' pre-sentence incarceration and its impact on the accused into account as a factor relevant to a determination of the proper sentence.

[42] Section 726.1 operates differently than s. 719(3) and (3.1). Section 726.1 may make pre-sentence incarceration a factor to be considered, along with other relevant factors, in determining the appropriate sentence. Section 719(3) and (3.1) do not speak to the factors relevant to determining a fit sentence, but rather instruct as to the manner in which pre-sentence custody should be counted to mitigate what has been determined to be the appropriate sentence. As the two provisions operate very differently, trial judges should be careful to distinguish between the two when considering the impact of pre-sentence custody on the determination of the sentence to be imposed.

Application to this case

[43] Based on the facts of this case, the sentencing judge properly viewed the detention as meeting the "as a result of" requirement of s. 719(3). The record discloses that bail on the second set of charges was sought but was refused, at least in part, due to Mr. Barnett's inability to provide an adequate surety. During oral argument before this court, the Crown conceded that the first set of offences had some link to the decision of the justice of the peace not to grant bail on the second offence. This refusal combined with other factors such as the significant length of the pre-sentence custody and the fact that the first offences related to the robbery were the most serious made it reasonable for the sentencing judge to view the inability to obtain bail on the second offence as being linked to or resulting at least in part from the first set of offences.

[44] Further, contrary to the Crown's submissions, we do not consider that the sentencing judge is barred from applying pre-sentence custody to the first set of offences because Mr. Barnett did not seek to have his bail on those offences revoked. It would be a waste of court resources to require an offender to bring such an application. This is especially true in a case such as this, where bail was applied for and refused on the second set of charges. This is not to suggest that the Crown cannot, if so advised, seek such revocation, particularly if it wants to trigger the operation of s. 719(3.1).

[45] For similar reasons, an offender's failure to seek bail on the second set of charges does not necessarily bar the application of pre-sentence custody to the sentence for the first set of charges: R. c. N. (D.). It is only one factor in the judge's assessment of the "as a result of" requirement. Refusal of bail may well be inevitable in the circumstances of a given case. Requiring a fruitless application would only result in delay and a waste of resources.

[46] A sentencing judge's sentence is entitled to deference and, in our view, there is no basis to interfere with his decision to apply pre-sentence custody as he did in this case. It was open to him to do so based on a correct reading of s. 719(3) and (3.1).

G. Conclusion

[47] On a final note, it is important that sentencing judges clearly record the amount of the pre-sentence custody applied in fashioning the sentence as the judge did in this case. This is to ensure that the court called upon to sentence the offender on later charges does not take the same pre-sentence custody into account a second time.

[48] As a result, we would grant leave to appeal sentence but dismiss the sentence appeal.

Appeal dismissed.

Notes

1 The Crown's calculation fails to account for the one day Mr. Barnett spent incarcerated pursuant to the sentence under appeal. Thus, if this court was to make an order for re-incarceration, it should be for 491 days.

2 The Crown maintains that although the 424 days of pre-trial custody were not available for credit on the first offences, 135 days could be used to reduce the sentence that he in fact served for the third offence. This would only result in a net loss of pre-sentence custody credit equal to 289 days (424 - 135). A more realistic calculation is that 90 days of pre-sentence custody would have been credited at 1.5:1 and would be sufficient to have eliminated the remaining 135 days of the sentence he served on the third offence. This would result in Mr. Barnett having lost any benefit for pre-sentence custody equal to 334 days (424 - 90) which, at 1.5:1, equals 501 days.

3 The constitutionality of this statutory provision is at issue in appeals pending in this court: R. v. Hussain (C62047) and R. v. Meads (C63093).