Her Majesty the Queen v. Passera

[Indexed as: R. v. Passera]

Ontario Reports

Court of Appeal for Ontario

Doherty, D.M. Brown and Trotter JJ.A.

June 24, 2019

146 O.R. (3d) 449 | 2019 ONCA 527

Case Summary

Charter of Rights and Freedoms — Cruel and unusual treatment or punishment — Parole

Parole eligibility considerations are not a component of the determination of a fit sentence. Sections 719(1) and 719(3.1) of the Criminal Code do not delay parole eligibility or require that offenders who were denied bail serve longer sentences than offenders who received bail. Parole eligibility is governed by other legislation that the accused did not challenge. Sections 719(1) and (3.1) do not violate section 12 of the Charter.

Criminal law — Drug offences — Sentence

The accused was convicted of importing almost two kilograms of cocaine. The accused acted as a courier and insisted that she did not know cocaine was in her luggage. A sentence of six years minus credit for pre-trial custody was affirmed on appeal.

Fundamental justice — Parole

Parole eligibility considerations are not a component of the determination of a fit sentence. Sections 719(1) and 719(3.1) of the Criminal Code do not delay parole eligibility or require that offenders who were denied bail serve longer sentences than offenders who received bail. Parole eligibility is governed by other legislation that the accused did not challenge. Sections 719(1) and (3.1) do not violate section 7 of the Charter.

Facts

The accused was convicted of importing almost two kilograms of cocaine. She testified that she was unaware that the cocaine was in her luggage. The trial judge found that she acted as a willing courier and sentenced her to six years' imprisonment, less a credit for pre-trial custody on a 1.5:1 basis and an additional 90-day credit to compensate her for the many lockdowns while she was in remand custody. The accused appealed, arguing that section 719(1) of the Criminal Code, which provides that a sentence begins when it is imposed, and section 719(3.1) of the Code, which limits credit for pre-trial custody to 1.5:1, violated her rights under section 7 of the Canadian Charter of Rights and Freedoms as they effectively required her to spend a significantly longer time in custody before she was eligible for parole than would have been the case had she been granted bail. She also argued that, in some reasonably foreseeable circumstances, the increase in time spent in custody before being eligible for parole will be so significant as to render the sentence imposed grossly disproportionate and contrary to section 12 of the Charter. If the constitutional argument failed, she submitted that the sentence imposed was unfit.

Decision

Held: The appeal should be dismissed.

Parole eligibility questions are not a component of the determination of a fit sentence. Although part of a single process, the determination and imposition of a fit sentence and the administration of that sentence after it is imposed are two distinct functions, performed by different entities, governed by different statutory regimes and designed to serve different purposes. Neither section 719(1) nor (3.1) delays parole eligibility or requires that offenders who are denied bail serve longer sentences than offenders who have received bail. Those sections have nothing to do with whether pre-trial custody can be taken into account by the correctional authorities in making decisions with respect to parole and other forms of conditional release. The accused had not attacked the constitutionality of the Corrections and Conditional Release Act, the statutory regime applicable to parole eligibility. Her claims under sections 7 and 12 of the Charter failed.

The sentence imposed by the trial judge was fit. The trial judge clearly viewed the accused's significant efforts to rehabilitate herself as a significant mitigating factor. He did not err in finding that the accused had not expressed remorse or demonstrated an appreciation of the seriousness of her offence, and did not use that finding as an aggravating factor on sentence.

Chronology of the Trial Proceedings

[12] The appellant was arrested at Pearson International Airport in August 2014 in possession of almost two kilograms of cocaine. The appellant was not released on bail. By the time the appellant was convicted in August 2016, she had been in custody for two years. Counsel made their sentencing submissions in September 2016 and the sentencing judge adjourned the matter to November 1, 2016 for sentencing.

[13] Very shortly before the scheduled date for sentencing, the appellant served a notice of constitutional question, challenging the constitutionality of section 719(3.1) of the Criminal Code. That challenge was amended shortly afterward to include section 719(1).

[14] The 11th-hour constitutional challenge extended the sentencing proceedings by almost seven months, to May 2017. The appellant remained in custody having unsuccessfully brought a bail application in November 2016 and a habeas corpus application in February 2017.

[15] On May 11, 2017, the sentencing judge dismissed the appellant's constitutional challenge and imposed a sentence of 613 days (six years (2,191 days) minus 1,578 days (credit for pre-trial custody)). The appellant was released on bail pending appeal in late June 2017, having served about 50 days of her sentence.

The Relevant Sentence Calculations

[16] A comparison of the sentence imposed on the appellant and a six-year sentence imposed on an offender who had received bail is central to this appeal.

[17] As the chart demonstrates, for the purposes of statutory release or earned remission release date after two-thirds of the sentence, the appellant is in a slightly better position than the hypothetical offender who received a six-year sentence but was on bail throughout the process. The appellant is eligible for release slightly sooner because of the additional 90-day credit given by the sentencing judge on account of the conditions in Vanier during pre-trial custody.

[18] The appellant also spends some 600 days less either in custody or under the warrant of committal than does the hypothetical offender who received a six-year sentence but was on bail. Also, because the appellant receives a sentence of less than two years, if she is released on earned remission after two-thirds of that sentence, she will not be subject to any terms and conditions for the last third (204 days) of her sentence. The hypothetical offender would, if released on parole or statutory release from the penitentiary, be under the terms and conditions set by the Parole Board of Canada (the "Parole Board") until the expiry of the full six years of the sentence.

[19] The appellant does, however, by virtue of her pre-trial custody, spend an additional 466 days, or about 15.5 months, in custody before being eligible for parole. The disparity arises because the calculation of eligibility for parole under the various corrections statutes does not take into account pre-trial custody. The longer the pre-trial custody, the greater the disparity. Enhanced credit for pre-trial custody reduces the disparity. However, the disparity could be eliminated by enhanced credit only if sentencing judges could grant credit on a 3:1 basis. Credit is presently capped under section 719(3.1) at 1.5 days for each day served in pre-trial custody.

[20] If credit at the rate of 3:1 were available, however, it would achieve parity in terms of parole eligibility only by putting the offender who had been held in custody throughout the process in a better position in terms of statutory release and warrant expiry dates than the offender who had received bail. For example, assume A and B both merit a six-year sentence for their offence. A has been on bail. B has been in pre-trial custody for one year. If 3:1 credit is given to B for the pre-trial custody, he will receive a sentence of three years. B will be eligible for parole after two years in custody (one year pre-trial and one year post-sentence). A, who was on bail, will also be eligible for parole after serving two years. B, however, will be eligible for statutory release after serving three years (one year pre-trial and two years post-sentence). A will have to wait four years. B's warrant of committal will expire after four years (one year pre-trial and three years post-sentence). A's warrant will not expire for six years.

[21] Parity in respect of all facets of conditional release between persons who were on bail and persons who were in custody cannot be achieved through the granting of enhanced credit for pre-trial custody. Perfect parity can be achieved if the sentence runs from the date of incarceration on the charge, both for the purposes of fixing the length of the sentence and for the purpose of determining conditional release on the sentence. Under the present scheme, a sentencing judge cannot, absent statutory authority, backdate a sentence to the date of incarceration on the charge: Criminal Code, section 719(1).

Sentencing and Parole Eligibility

Overview

[22] The appellant's submissions treat the determination of parole eligibility as part of the sentence determination. On that approach, when a sentence includes a term of imprisonment, the fitness of the sentence must have regard, not only to the length of the term imposed, but also to when and how the correctional authorities, acting under their separate statutory mandate, will consider and potentially grant some form of conditional release. The appellant contends that as part of imposing a fit sentence, the sentencing judge must look to ensure parity in terms of parole eligibility between persons held in custody prior to sentence and persons released on bail.

[23] I agree that when a sentence involves a term of imprisonment, the sentencing process can be viewed as encompassing both the term imposed by the sentencing judge and the statutory provisions under which the sentence will be administered by correctional authorities after it is imposed. Together they describe and define the punishment imposed. However, although part of a single process, the determination and imposition of a fit sentence and the administration of that sentence after it is imposed are two distinct functions, performed by different entities, governed by different statutory regimes, and designed to serve different purposes: R. v. Zinck, [2003] 1 S.C.R. 41, 2003 SCC 6, at para. 19. I do not agree with the appellant's characterization of parole eligibility questions as a component of the determination of a fit sentence.

[24] Sentencing judges are charged with imposing a fit sentence for the offence and the offender, having regard to concerns which include rehabilitation, deterrence and denunciation. Correctional authorities take the sentence as imposed and are responsible for administering that sentence. Sentence administration includes determining when and on what terms persons who are serving prison sentences should be permitted to serve some part of that sentence outside of the prison on conditions deemed appropriate by the correctional authorities. That assessment engages different considerations from those that influence the determination of an appropriate sentence. Decisions pertaining to conditional release are, by their very nature, predicated to a considerable degree on events that post-date the imposition of sentence.

(a) The Sentencing Process

[25] In fixing an appropriate sentence, sentencing judges are governed primarily by Part XXIII of the Criminal Code. Fundamentally, that regime aims to impose a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, section 718.1; R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 40. As recently explained by Moldaver J. in R. v. Suter, [2018] 2 S.C.R. 496, 2018 SCC 34, at para. 4:

Sentencing is a highly individualized process. A delicate balancing of the various sentencing principles and objectives is called for, in line with the overriding principle that a "sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender" (section 718.1 of the Criminal Code). Accordingly, there will be cases where the particular circumstances of the offence and/or the offender call for a sentence that falls outside of the normal sentencing range.

[26] Subject to specific statutory exceptions (e.g., sections 743.6 and 745.5), sentencing judges are not asked to determine parole eligibility when fixing an appropriate sentence. Questions relating to if, when, or how an offender might be released on some form of conditional release prior to the completion of the sentence are not for the sentencing judge to determine: see Zinck, at paras. 18-20; Canada (Attorney General) v. Whaling, [2014] 1 S.C.R. 392, 2014 SCC 20, at para. 61. A sentencing judge cannot increase a sentence with a view to increasing the period of parole ineligibility or the period during which an offender would be subject to parole: Zinck, at para. 18; R. v. Wilmott, [1966] 2 O.R. 654; R. v. Holden, [1962] B.C.J. No. 90.

[27] It would be equally wrong for a sentencing judge to impose a sentence that was less than the appropriate sentence for the offence and the offender because, in the sentencing judge's view, the offender would be best served by being eligible for conditional release at some specific point in time. For example, some crimes, and cocaine importation is one, require a sentence that emphasizes denunciation and general deterrence. It would be an error in principle for a sentencing judge to ignore or undervalue those considerations and impose a sentence predicated entirely on the sentencing judge's assessment that the offender's rehabilitation would be best served if that offender were eligible for parole at a certain date.

[28] Although sentencing judges do not sentence based on parole eligibility considerations, pre-trial custody on the charge is a significant factor to be considered in arriving at a fit sentence. Because sentences begin when imposed in the vast majority of cases under section 719(1), pre-trial custody on the charge must be taken into account in arriving at an appropriate sentence: Criminal Code, section 719(3).

[29] Pre-trial custody on a charge is taken into account, first and foremost because it would be fundamentally unfair to ignore the reality of pre-trial incarceration. As succinctly observed in R. v. Summers, [2014] 1 S.C.R. 575, 2014 SCC 26, at para. 1, "[a] day in jail should count as a day in jail". If a sentencing judge decides that a jail term is necessary and the offender has been in jail on that charge prior to sentencing, that pre-trial custody must be treated as part of the offender's punishment for the purpose of fixing the appropriate length of the jail term: R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18, at para. 41; R. v. McDonald, 40 O.R. (3d) 641, at pp. 657-58 O.R.

[30] The sentencing jurisprudence has long recognized that in fixing a proper sentence, a sentencing judge will often be required to give credit on more than a 1:1 basis for pre-trial custody. This enhanced credit for pre-trial custody is justified on two grounds. First, pre-trial custody is not taken into account by the correctional authorities in determining an offender's eligibility for conditional release after sentence is imposed. To take one example, offenders serving provincial sentences can earn up to 15 days' remission per month on their sentence for good behaviour. Earned remission is not available to a person who is in custody prior to sentencing. Consequently, if the person who was in custody prior to sentencing receives only 1:1 credit for pre-trial custody, that person is deprived of the benefit of earned remission. She potentially loses one half-day credit for each day served.

[31] The second reason for giving enhanced credit has to do with the conditions in the jails where people are held pending trial. Often, the conditions are very difficult and there is no access to educational programs or other rehabilitative opportunities that are usually available in the institutions in which persons are confined after sentencing. Judges sometimes give "credit" for those difficult conditions: see R. v. Rezaie, 31 O.R. (3d) 713, at p. 721 O.R.; Wust, at paras. 44-45; R. v. Summers (2013), 114 O.R. (3d) 641, 2013 ONCA 147, at para. 37, affd 2014 SCC 26, at paras. 22-39; R. v. Safarzadeh-Markhali, [2016] 1 S.C.R. 180, 2016 SCC 14, at para. 1.

[32] Prior to the enactment of section 719(3.1), there was no cap on the amount of enhanced credit that sentencing judges could give for pre-trial custody. In Wust, Arbour J. acknowledged that 2:1 credit was often given, but indicated that the credit given in any specific case depended on the particulars of the case and should not be determined by a "rigid formula". She observed that in determining the credit to be given, sentencing judges have considered the offender's actual possibilities of conditional release and the conditions in which the pre-trial custody had been served: Wust, at paras. 44-45.

[33] Nothing in the sentencing jurisprudence prior to the enactment of section 719(3.1) suggested that the imposition of a fit sentence required that the sentencing judge impose a sentence that would ensure an offender who had been held in custody throughout the process would not spend more time in custody before being eligible for parole than would an offender who had been on bail and received the equivalent sentence. Certainly, the 2:1 ratio specifically approved of in Wust would not achieve that parity. In fact, if the appropriate sentence was not a lengthy one and the offender had been in pre-trial custody for any appreciable period of time, the sentencing judge could not possibly achieve that parity.

[34] In Summers and its companion case, R. v. Carvery, [2014] 1 S.C.R. 605, 2014 SCC 27, the Supreme Court of Canada revisited credit for pre-trial custody in the context of the recently enacted section 719(3.1), which had capped credit for pre-trial custody at 1.5 days for every day spent in custody. Summers and Carvery reaffirmed the case-by-case approach to the quantification of credit for pre-trial custody articulated in Wust. Those cases also identified the same rationales for enhanced pre-trial custody as had been identified in Wust: Summers, at paras. 20-31, 75.

[35] In holding that enhanced credit for pre-trial custody was justified, in part because pre-trial custody did not count towards eligibility for conditional release after sentencing, the court made it clear that an offender's bail status during the criminal process was irrelevant to the determination of the appropriate sentence. Offenders could not be sentenced more severely because they had been denied bail: Summers, at paras. 60-65.

[36] In Summers, Karakatsanis J., speaking for the court, explained that the ability to grant 1.5 days' credit for each day served in pre-trial custody meant that offenders who had not received bail would not spend more time in custody before reaching their statutory release/earned remission release date than would prisoners who received the equivalent sentence but had been on bail throughout the process. Parity, the linchpin of the appellant's argument in this case, was achieved, but only at the two-thirds point of the sentence imposed.

[37] Almost all offenders in both the federal and provincial systems are released at or before the two-third mark of their sentences: Summers, at paras. 25-27. At the same time, the court understood that the 1.5:1 ratio would not put offenders who had been held in custody prior to sentencing in the same position as persons who had received bail insofar as parole eligibility at the one-third mark of the sentence was concerned. The court said in Carvery, at para. 21:

Credit at a rate of 1.5 to 1 does not allow the respondent to derive a "benefit" from the delay, unless he ultimately does not qualify for early release. Indeed, while that rate compensates for loss of early release, if the respondent were to be paroled at any time before the 2/3 mark of his sentence, he would end up spending more time in jail because of the delay, notwithstanding the enhanced credit.

[38] Neither Summers nor Carvery addressed the constitutional issues raised here. Both involved the statutory interpretation of section 719(3.1), and not the constitutionality of the provision. The two cases, however, recognize that the unavailability of credit towards eligibility for conditional release in respect of pre-trial custody is an important consideration in fixing the quantum of credit that should be given for pre-trial custody. Further, both cases leave no doubt that a proper evaluation of credit for pre-trial custody is an integral and essential step in arriving at a fit and just sentence.

[39] The analyses in Summers and Carvery, however, offer no support for the assertion that the kind of parity advocated for by the appellant has been recognized as a principle of sentencing integral to the imposition of a fit sentence, much less a constitutionally mandated imperative. Both before and after the enactment of the 1.5:1 cap in section 719(3.1), the Supreme Court has insisted on a case-by-case approach to the determination of the credit to be given for pre-trial custody. Certainly, judges must be alive to the reality that pre-trial custody does not count towards early conditional release, and must take that reality into account. However, in doing so as part of the process of formulating a proper sentence, the jurisprudence has never looked to the parity urged by the appellant as necessary to the imposition of a fit sentence.

[40] As outlined above, pre-trial custody is relevant in determining the appropriate sentence because of its impact on eligibility for conditional release and sometimes because of the conditions endured by the offender during that pre-trial custody. There is a third indirect, but nonetheless important, way in which pre-trial custody can have a significant impact on the sentence imposed. Sometimes, persons who are in pre-trial custody have the opportunity to take advantage of various programs and other rehabilitative measures. If they do so, those persons may make positive lifestyle changes and provide valuable insight for the sentencing judge into their rehabilitative prospects.

[41] Sentencing judges must have regard to the circumstances of the offenders as they exist at the time of sentencing. If an offender, while in pre-trial custody, has taken positive steps to change her life and demonstrated significant rehabilitative potential, the sentencing judge must take that development into account, not by way of calculating some additional "credit" for pre-trial custody, but instead by imposing a lower, but still fit, sentence than would have been imposed had there been no indicia of the offender's positive rehabilitative prospects. For example, in this case, but for the appellant's positive rehabilitative steps while in pre-trial custody, the sentencing judge may well have concluded that something more than six years was the appropriate sentence.

[42] The sentencing judge's reasons demonstrate that she took the appellant's pre-trial custody into account in the three ways outlined above. She recognized that pre-trial custody did not count towards eligibility for conditional release after sentencing and gave the appellant 1.5 days' credit for each day served. This was the maximum credit available under section 719(3.1) and ensured that the appellant would not be prejudiced by her pre-trial custody insofar as her earned remission release date was concerned.

[43] The sentencing judge also acknowledged that the difficult conditions of the appellant's pre-trial custody further mitigated the sentence. She quantified that mitigation at 90 days: see R. v. Duncan, [2016] O.J. No. 5255, 2016 ONCA 754, at para. 6.

[44] Finally, the sentencing judge expressly recognized the appellant's rehabilitative progress while in custody prior to sentence as demonstrating "meaningful and significant" steps towards rehabilitation. That progress clearly mitigated the sentence that would otherwise have been imposed.

(b) The Conditional Release Regime

[45] Correctional authorities, including the Parole Board, administer sentences imposed by sentencing judges. In doing so, they are governed by various interlocking federal and provincial statutes. Sentence administration includes deciding questions concerning the conditional release of offenders while they are serving the sentence imposed by the sentencing judge. The legislation addresses both the timing of eligibility for conditional release and the granting of conditional release.

[46] The grant of some form of conditional release by correctional authorities does not alter the sentence imposed by the sentencing judge. It does, however, permit the offender to serve part of the sentence imposed outside of a prison on the terms and conditions set by the Parole Board: Cunningham v. Canada, [1993] 2 S.C.R. 143, at pp. 150-51, S.C.R.; M. (C.A.), at paras. 61-62; Corrections and Conditional Release Act, S.C. 1992, c. 20, section 128(1) ("CCRA"). Nor are the provisions governing eligibility for and release on parole intended to restrict or otherwise shape the sentencing discretion given to sentencing judges under the Criminal Code. To so read the legislation is to allow the correctional tail to wag the sentencing dog: M. (C.A.), at para. 57.

[47] Offenders who receive a sentence of two years or longer go to the penitentiary and are subject to the provisions in the CCRA. That Act describes four kinds of conditional release available to persons serving penitentiary sentences:

• temporary absence (CCRA, section 115);
• day parole (CCRA, section 119);
• full parole (CCRA, section 120); and
• statutory release (CCRA, section 127).

[48] Eligibility for temporary absence and day parole are tied to the date at which an offender becomes eligible for full parole. For example, offenders are eligible for day parole a certain amount of time before they are eligible for full parole. Neither temporary absence nor day parole are available to a person serving a penitentiary sentence until that person has served at least six months: CCRA, sections 115(1)(c), 119(1)(c).

[49] The appellant's constitutional argument focuses on the impact of pre-trial custody on eligibility for full parole. I will not deal separately with the effect of pre-trial custody on the availability of temporary absence or day parole. Suffice it to say that because those forms of conditional release are tied to the timing of eligibility for full parole, any prejudice suffered in respect of eligibility for full parole also prejudices the availability of temporary absence or day parole.

[50] Full parole is generally available after an offender has served one-third of his sentence: CCRA, section 120(1). However, for persons convicted of most offences, parole can be granted at any time during the sentence if the exceptional circumstances described in section 121 of the CCRA exist. Parole is discretionary. There is no right to parole. A person who is released on parole is allowed to live outside of the prison, but remains subject to any terms and conditions imposed by the Parole Board for the remainder of the offender's sentence. Parole can be suspended or terminated, in which case offenders are re-incarcerated to serve the sentence imposed by the sentencing judge: CCRA, sections 135(1), 135(7), 138(1).

[51] For most sentences, the CCRA defines sentence as "a sentence of imprisonment" and calculates parole eligibility from the date the sentence was imposed: CCRA, sections 2, 99, 120(1); M. (C.A.), at para. 44. There are, however, exceptions to the general rule. For example, persons who receive a life sentence, other than as a minimum punishment, are eligible for parole after seven years. Calculation of the seven years runs from the date the offender is taken into custody on the charge: CCRA, section 120(2); M. (C.A.), at para. 45.

[52] A second exception applies to offenders who are subject to two or more sentences. Section 139(1) of the CCRA merges those sentences into one sentence for the purposes of determining eligibility for conditional release. Parole eligibility is calculated from the date of the first sentence: see R. v. Middleton, [2009] 1 S.C.R. 674, 2009 SCC 21, at paras. 29-33. For example, an offender who receives a four-year sentence and two years later while serving that sentence receives a consecutive two-year sentence for another offence, is treated under the CCRA for conditional release purposes as having been sentenced to six years on the date the first sentence was imposed. The offender is eligible for parole two years (one-third of six) from the date the first sentence was imposed. In this example, the offender is eligible for parole on the same day the offender is sentenced on the second offence.

[53] Offenders who are not released on parole are released after serving two-thirds of their sentence. Release at the two-thirds point is referred to as statutory release. Those offenders are released under terms and conditions imposed by the Parole Board. They can be returned to custody if they breach those terms. Persons convicted of certain serious offences can, in specified circumstances, be ordered by the Parole Board to remain in custody for their entire sentences: CCRA, sections 129-132.

[54] The statistical data indicate that roughly 30 per cent of federal prisoners are released on some form of conditional release before they have served two-thirds of their sentence and are eligible for statutory release. Most offenders are released on their statutory release date. Very few prisoners are held beyond their statutory release date: Public Safety Canada, Corrections and Conditional Release: Statistical Overview, 2017 Annual Report (Ottawa: Public Works and Government Services Canada, 2018), at p. 80; Parole Board of Canada, Performance Monitoring Report, 2017-2018, at pp. 31, 96-98.

[55] Offenders like the appellant who receive a sentence of less than two years are held in provincial institutions. The statutes governing the release of those prisoners prior to the completion of their sentence are an amalgam of federal and provincial legislation.

[56] An offender serving less than two years is eligible for parole after serving one-third of the sentence: General, R.R.O. 1990, Reg. 778, section 41(1). Parole can be granted at any time if there are "compelling or exceptional circumstances": R.R.O. 1990, Reg. 778, section 41(2). If the sentence imposed is less than six months, an offender may apply in writing for parole at any time: R.R.O. 1990, Reg. 778, section 42(1).

[57] Parole decisions are made by the Ontario Parole Board. The criteria governing parole and the terms and conditions that can be imposed on persons released on parole mimic those available for federal offenders: see CCRA, sections 101, 102, 112, 113; Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, sections 31-41; R.R.O. 1990, Reg. 778, sections 41-48; Kenneth W. Hogg and Brian G. Whitehead, Guide to Ontario's Ministry of Correctional Services Act, (Markham: LexisNexis, 2006), at pp. 57-59.

[58] Persons serving sentences of less than two years can earn remission on those sentences through good behaviour. Remission can be credited at a maximum rate of 15 days for each month served. An offender who receives the maximum earned remission available will be released after serving two-thirds of the sentence: Prisons and Reformatories Act, R.S.C. 1985, c. P-20, section 6. Release based on earned remission is the equivalent of statutory release for offenders who are serving sentences in the penitentiary. However, persons who are released based on earned remission are not subject to any terms or conditions after release. The "vast majority" of persons sentenced to less than two years are released at about the two-thirds point in their sentence: Summers, at para. 25.

[59] The decisions made by correctional authorities relating to conditional release are based on many factors, including the nature and gravity of the offence, the degree of responsibility of the offender, and considerations relating both to the risk posed by the offender and the offender's rehabilitative prospects: CCRA, sections 101-102. In making those decisions, the correctional authorities are guided by section 100 of the CCRA:

100 The purpose of conditional release is to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens.

[60] Conditional release assessments take time. They must have regard to the length of the sentence imposed, the time remaining on the sentence, the offender's progress while in custody, various assessments made by correctional authorities, the offender's release plan and any concerns in the community into which the offender may be released.

[61] Conditional release assessments, by their nature, cannot be undertaken until the offender has been convicted and sentenced to a specific period of time in custody: CCRA, section 102(a). Conditional release assessments also require that correctional authorities in the institution in which the offender is serving the sentence have an adequate opportunity to accumulate the necessary information, make the necessary assessments and fashion the necessary release plan.

[62] In Zinck, LeBel J. described conditional release assessments in this way, at para. 19:

Nevertheless, the decision-making process under the Act [CCRA] remains much different from the judicial determination of a fit sentence. It is largely based on the ongoing observation and assessment of the personality and behaviour of the offender during his or her incarceration, which focuses on dangerousness and the offender's ability to re-enter the community. Such a process may extend over several years and lead to decisions that are highly attentive to context and based, at least in part, on what actually happened during the incarceration of the offender.

The Section 7 Claim

[63] Section 7 reads:

7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[64] Section 7 is engaged if legislation deprives an individual of the "right to liberty". Legislation that sets preconditions to applying for parole effectively determines parole ineligibility. In doing so, it deprives offenders serving sentences of "an important residual liberty interest which is cognizable under s. 7": R. v. Gamble, [1988] 2 S.C.R. 595, at para. 71; see, also, Cunningham, at pp. 148-51 S.C.R.; M. (C.A.), at para. 62; Whaling, at paras. 60-62.

[65] While I accept that the right to apply for parole, as opposed to the right to receive parole, is a contingent liberty interest, I cannot accept the respondent's submission that it is so contingent as to be unworthy of section 7 protection. As the statistics show, the opportunity to apply for parole translates into release from prison before the statutory release/earned remission date for many prisoners.

[66] The appellant chose to challenge only sections 719(1) and 719(3.1) of the Criminal Code. She did not challenge any part of the statutory framework that actually creates and controls eligibility for conditional release of persons serving jail sentences. The appellant put her claim in this way in the amended notice of constitutional question:

The effect of section 719(1) and the cap on enhanced credit created by section 719(3.1) is to require an offender who is detained pending trial to serve a lengthier sentence than an identically situated offender who is released pending trial.

[67] The appellant is wrong in asserting that the Criminal Code provisions require her "to serve a lengthier sentence than an identically situated offender who is released on bail pending trial" would serve. As outlined in the chart above (para. 16), the appellant actually serves almost 600 days less in custody or under the warrant of committal than does the hypothetical offender who was released on bail. The appellant does, however, spend considerably longer in custody before being eligible for parole. In my view, however, neither section 719(1) nor section 719(3.1) are responsible for this result.

[68] It is essential in the examination of a section 7 claim to accurately identify the legislation responsible for the liberty infringement that is said to have occurred in a manner contrary to the principles of fundamental justice. The appellant says that the liberty interest reflected in her ability to apply for parole is infringed because her pre-trial custody does not count towards parole eligibility. To evaluate this claim one must first ask what legislation is responsible for that state of affairs.

[69] The appellant points to section 719(1), which provides:

719(1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.

[70] On its face, section 719(1) has nothing to do with parole eligibility. As counsel observed, a similar section has been in the Code since its inception and long before the concept of parole even existed. Section 719(1) identifies the point in time at which a sentence imposed by a sentencing judge begins. Without section 719(1), or some other starting date provision, neither the parties nor the sentencing judge could know the duration of the sentence actually imposed. It is difficult to envision a sentencing scheme that does not expressly provide for a starting point of the sentence. Subsection 719(1), sometimes referred to as a "computing rule", simply identifies the point in time from which the sentence is to run for the purposes of the Criminal Code: Wust, at para. 23.

[71] The appellant industriously traced the history of section 719 and compared the section to sentencing provisions in other jurisdictions which define the starting point of sentences in different ways. The appellant submits that there is no policy purpose behind the starting point chosen in section 719(1), and that other starting points could provide a more just and efficient sentencing process. The appellant's submission may or may not be correct. With respect, I think it is irrelevant to whether section 719(1) has anything to do with determining an offender's eligibility for parole.

[72] Subsection 719(1) says nothing about eligibility for parole. Nor does the section affect eligibility for parole. To the extent that the point at which a sentence commences for the purposes of the Criminal Code is relevant to determining eligibility for parole, that relevance flows from the definition of sentence and the provisions setting out the preconditions for parole in the CCRA and other corrections statutes. The fact that these provisions choose, for the most part, to use the starting point of the sentence as set down in section 719(1) for the purposes of parole calculations does not mean that section 719(1) defines the starting point of sentences for the purposes of the CCRA. The provisions of the CCRA do that.

[73] The CCRA and other corrections statutes generally, but not exclusively, use the starting date of the sentence as imposed by the sentencing judge as the operative date for the purposes of calculating eligibility for conditional release on the sentence. For example, section 120(1) of the CCRA, which governs eligibility for parole of persons serving penitentiary terms, provides that an offender cannot apply for parole "until the day on which the offender has served a period of ineligibility of the lesser of one third of the sentence and seven years". "Sentence" is defined as "a sentence of imprisonment": CCRA, sections 99, 2.

[74] The limit on eligibility to apply for parole, the basis for the liberty infringement claim advanced by the appellant, flows directly from section 120 of the CCRA (and similar related corrections statutes). Parole ineligibility as prescribed in section 120 of the CCRA has nothing to do with section 719(1) of the Criminal Code.

[75] A consideration of section 719(3.1) also compels the conclusion that it has nothing to do with fixing parole eligibility or ineligibility. Subsections 719(3) and (3.1) read:

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.

[76] The purpose of both sections is to provide for, and limit, the extent to which pre-trial custody can mitigate the length of a sentence imposed by a sentencing judge. Both sections are connected to the conditional release regime in the sense that they provide a mechanism by which a sentencing judge can alleviate the negative impact of the inapplicability of pre-trial custody to the determination of eligibility for conditional release. The sections, however, have nothing to do with determining parole eligibility or ineligibility. Instead, the sections give the sentencing court the ability to take the operation of statutory provisions that do affect parole eligibility into account in structuring a fit sentence. The connection between section 719(3.1) and the statutory regime governing conditional release of persons serving sentences is described in Summers, at para. 50:

Further, this structure builds resilience into the statutory scheme. For example, if Parliament were to amend the Corrections and Conditional Release Act, so that pre-trial custody counted for the purposes of parole eligibility and early release, section 719(3.1) would only be called upon to account for situations of qualitative harshness, and an increased number of cases would fall solely under section 719(3). The structure of the provision logically mirrors the rationales for credit and enhanced credit.

[77] The sentencing judge treated the constitutional challenge as engaging the combined effect of the Criminal Code provisions and the sections of the CCRA. With respect, I cannot agree with this approach for three reasons.

[78] First, the appellant did not frame the challenge in that way in her application, although she did take that line of attack in her submissions before the sentencing judge. Second, for the reasons set out above, it is inaccurate to describe either section 719(1) or (3.1) as having anything to do with determining eligibility or ineligibility for conditional release. More specifically, those sections have nothing to do with whether pre-trial custody can be taken into account by the correctional authorities in making decisions with respect to parole and other forms of conditional release.

[79] Third, the sentencing judge's approach does not maintain the important distinction between the role of the sentencing judge and the role of the correctional authorities. Subsections 719(1) and (3.1) are tools to be used by the sentencing judge in determining the appropriate punishment for the offence and the offender. In wielding those tools, the sentencing judge will have regard to pre-trial custody and the impact of that custody on parole eligibility. However, determinations with respect to the eligibility for parole and the granting of parole are not part of the sentencing judge's duties or considerations. Those decisions are assigned to the correctional authorities, acting under an entirely different statutory regime. Parole-related decisions are, by their very nature, made at a very different stage of the punishment process and serve a very different purpose.

[80] The purpose of the legislation challenged under section 7 is a central feature of the constitutional analysis required by that section. Claims of arbitrariness and overbreadth turn largely on a proper identification of the purpose of the impugned legislation and a consideration of the connection between that purpose and the challenged effect of the legislation. Legislative purpose or objective is also important in any section 1 analysis that may be required.

[81] Because the appellant took aim at the wrong statutory provisions, the court heard little, if anything, about the purposes of the provisions in the corrections statutes that, generally speaking, limit parole eligibility to offenders who have served a certain portion of their sentence. Nor does the court have any evidence relevant to the connection, if any, between the purposes behind the provisions relating to parole eligibility and the absence of any consideration in those provisions of time spent in pre-trial custody.

[82] In its helpful factum, the Canadian Civil Liberties Association submits:

There is no penological purpose or doctrinal justification for not treating a day in jail prior to sentencing as one would if that day were served post-sentencing.

[83] That submission is well supported by authority insofar as it applies to the sentencing judge when determining the length of the sentence to be imposed. It is not self-evident to me that the observation has equal application to correctional authorities fixed with the obligation of deciding whether an individual should be granted some form of conditional release so that she can serve part of the sentence outside of prison. As noted by LeBel J., at para. 19 in Zinck (reproduced above, at para. 62), parole decisions are based very much on "ongoing observation and assessment of the personality and behaviour of the offender during his or her incarceration". Given the nature of the decision to be made by the correctional authorities and the purpose animating conditional release, there may well be sound penological and doctrinal reasons for distinguishing between pre- and post-sentence custody when considering parole eligibility.

[84] It is not difficult, given the nature of conditional release decisions, the information which must be considered in making those decisions, and the criteria governing them, to understand from a practical perspective that there will almost inevitably be some passage of time between the date of sentencing and the consideration of the offender's suitability for conditional release. The present scheme reflects that reality. Whether it provides a constitutionally acceptable solution to that practical reality can only be determined when those sections are subject to constitutional challenge.

[85] The section 7 claim fails.

The Section 12 Claim

[86] The section 12 claim fails for the same reasons as the section 7 claim. The impugned sections of the Criminal Code do not increase the length of the sentence. As set out above, the sentence imposed on the appellant was actually shorter than it would have been but for her pre-trial incarceration. Nor do the Criminal Code provisions require that the appellant spend a longer period of time in custody before being eligible for parole. As explained above, the time spent in custody before eligibility for parole is, with very few exceptions, the product of the provisions of the CCRA and related statutes.

The Fitness of the Sentence

[87] In the course of her reasons for sentence, the sentencing judge said:

I did not hear from Ms. Passera herself any acknowledgement of error on her part, or any expression that she was sorry for what she [has] done. While there is no doubt that she has worked hard on her own rehabilitation, I have not heard from her an indication that she appreciates the serious nature of her offence or the harm that it causes to the community.

[88] The appellant contends that in a letter filed and read on sentencing she did acknowledge the offence, express remorse, and demonstrate an appreciation of the seriousness of her offence.

[89] On my reading of the letter, the appellant does not acknowledge that she committed the crime, or indicate that she was sorry for her role in the crime. Nor did the appellant recognize the harm that crimes like cocaine importation do to the community. None of this is surprising, given that the appellant testified under oath that she did not know the cocaine was in her luggage.

[90] I think the sentencing judge captured the essence of the appellant's letter when she observed that the appellant has "worked hard on her own rehabilitation". The sentencing judge clearly viewed this as a significant mitigating factor.

[91] I hasten to add that while the sentencing judge observed that the appellant had not acknowledged her crime or the harm it caused to the community, the sentencing judge did not use this as an aggravating factor on sentence. She made these comments in the course of summarizing the appellant's response to her predicament.

[92] I see no material misapprehension of the evidence. In my view, the sentence imposed carefully balances the positive and negative features presented on sentencing. I would not interfere with the sentence.

Conclusion

[93] I would dismiss the appeal.

Appeal dismissed.

Notes

1 The intervenors all support the appellant's position. The Criminal Lawyers' Association (Ontario) and the Aboriginal Legal Services advance section 7 arguments. The Canadian Civil Liberties Association advances a section 12 argument.

2 The appellant was subsequently incarcerated on other unrelated charges.

3 The additional 90 days' credit given for the lockdown conditions reduces this figure by about 30 days.

4 Consecutive sentences imposed under section 718.3(4) are the most common exception.

5 Parole in the provincial system in Ontario is relatively rare. Over 90 per cent of the provincial prisoners are serving sentences of less than six months. It may be that prisoners serving short sentences simply wait for their unconditional release after two-thirds of the sentence: A. Doob et al., "Zombie Parole: The Withering of Conditional Release in Canada" (2014), 61 Crim. L.Q. 301, at pp. 324-25.

6 Persons serving sentences of under two years are eligible for temporary absence: Prisons and Reformatories Act, R.S.C. 1985, c. P-20, sections 7-7.4. Any temporary absence over 72 hours must be approved by the Ontario Parole Board. It does not appear that persons serving provincial sentences are eligible for day parole.