R. v. Arthurs, [2000] 1 S.C.R. 481

Kelly Neil Arthurs Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General for Ontario Intervener

Indexed as: R. v. Arthurs

Neutral citation: 2000 SCC 19.

File No.: 26800.

1999: November 9; 2000: April 13.

Present: Gonthier, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour JJ.

on appeal from the court of appeal for british columbia

Criminal law -- Sentencing -- Mandatory minimum sentences -- Robbery -- Criminal Code providing for mandatory minimum sentence of four years where firearm used in commission of robbery -- Whether sentencing judge may reduce minimum sentence to take into account pre-sentencing custody -- Criminal Code, R.S.C., 1985, c. C-46, ss. 344(a), 719(3).

The accused pleaded guilty to robbery with a firearm. At the time of his sentencing, he had been in custody since his arrest approximately four months earlier. The sentencing judge imposed the minimum sentence of four years’ imprisonment required by s. 344(a) of the Criminal Code and declined to apply s. 719(3) of the Code to take pre-sentencing custody into account. The accused’s appeal against sentence was dismissed.

Held: The appeal should be allowed.

For the reasons given in R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18, a sentencing judge may give credit for time served in pre‑sentencing custody, even if that credit results in a sentence below the mandatory minimum, since mandatory minimum sentences must be interpreted and administered in a manner consistent with the criminal justice system's overall sentencing regime.

Cases Cited

Followed: R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18; referred to: R. v. Arrance, [2000] 1 S.C.R. 488, 2000 SCC 20; R. v. Brown (1976), 36 C.R.N.S. 246.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 12.

Criminal Code, R.S.C., 1985, c. C-46, ss. 344 [repl. 1995, c. 39, s. 149], 719(1) [en. 1995, c. 22, s. 6], (3) [idem], 721(3) [rep. idem].

APPEAL from a judgment of the British Columbia Court of Appeal (1998), 1998 CanLII 5492 (BC CA), 107 B.C.A.C. 130, 174 W.A.C. 130, 125 C.C.C. (3d) 43, 17 C.R. (5th) 45, 53 C.R.R. (2d) 306, [1998] B.C.J. No. 1076 (QL), dismissing the accused’s appeal against sentence. Appeal allowed.

James E. Turner, for the appellant.

Peter W. Ewert, Q.C., and Geoffrey R. Gaul, for the respondent.

David Finley, for the intervener the Attorney General for Ontario.

The judgment of the Court was delivered by

Arbour J. –

I. Introduction

1 This appeal was heard at the same time as two other cases, R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18, and R. v. Arrance, [2000] 1 S.C.R. 488, 2000 SCC 20, which are released concurrently with this decision. The issue is whether, when Parliament has imposed a mandatory minimum sentence, the court may deduct from that sentence the time spent by the offender in custody while awaiting trial and sentence, if this has the effect of reducing the sentence pronounced by the court to less than the minimum provided by law. For the reasons I set out in Wust, s. 719(3) of the Criminal Code, R.S.C., 1985, c. C-46, which provides judges with the discretion to count pre-sentencing custody in fixing the length of the sentence, may be applied to the mandatory minimum sentence of four years’ imprisonment for robbery while using a firearm under s. 344(a) of the Code. I determined in Wust that a sentencing judge may give credit for time served in pre-sentencing custody, even if that credit results in a sentence below the mandatory minimum, since this reflects the intention of Parliament that all sentences be administered consistently within the context of the criminal justice system’s sentencing regime.

II. Factual Background and Judicial History

A. Factual Background

2 A brief review of the facts is necessary to dispose of this appeal. On March 19, 1996, the appellant robbed a store in Victoria, British Columbia. He was armed with an unloaded, sawed-off shotgun. He pointed the gun at the clerk and demanded money. After receiving about $500, the appellant fled.

3 Six days later, on March 25, 1996, the appellant, carrying the same sawed-off shotgun, attempted to rob a convenience store. The appellant struggled with an employee of the store, knocking him down, and hitting him four times with the gun. The appellant fled the store without obtaining any money and was apprehended a short distance away.

4 The appellant was arrested and provided a warned statement to the police admitting both offences. He was 28 years old at the time with no previous convictions, although he had received a conditional discharge for possession of a prohibited weapon, a broken switch blade knife. The appellant entered a guilty plea. At the time of his sentencing, the appellant had been in custody for about four months.

B. British Columbia Provincial Court

5 In deciding whether to apply s. 721(3) of the Criminal Code (now s. 719(3)), to credit the four months that the appellant had spent in pre-sentencing custody to reduce the four-year minimum sentence he was facing under s. 344(a), Ehrcke Prov. Ct. J. relied on R. v. Brown (1976), 36 C.R.N.S. 246 (Ont. Co. Ct.), for the proposition that a general statutory provision yields to an express provision. Thus, Ehrcke Prov. Ct. J. held that s. 721(3) could not be applied to a s. 344(a) mandatory minimum sentence and the appellant was given no credit for the four months he spent in custody prior to sentencing.

6 Ehrcke Prov. Ct. J. imposed the minimum sentence of four years for the robbery, as well as a sentence of three years concurrent for the attempted robbery, and a 10-year prohibition against possession of firearms on each count.

C. British Columbia Court of Appeal (1998), [1998 CanLII 5492 (BC CA)](https://www.canlii.org/en/bc/bcca/doc/1998/1998canlii5492/1998canlii5492.html), 125 C.C.C. (3d) 43

7 The appellant appealed his sentences, challenging the constitutionality of the mandatory minimum punishment of s. 344(a) as a violation of his s. 12 Charter right not to be subjected to cruel and unusual punishment or treatment and the refusal of the sentencing judge to make a deduction for time served. The appeal was heard and decided at the same time as four other sentencing appeals, all under s. 344(a). As previously noted, two of those appeals were also heard in this Court together with the present case: Wust, supra, and Arrance, supra.

8 McEachern C.J.B.C., writing for a unanimous court, upheld the constitutionality of s. 344(a) under s. 12 of the Canadian Charter of Rights and Freedoms, and also held that the correct interpretation of s. 344(a) mandated the imposition of a sentence of at least four years. Because s. 719(1) of the Criminal Code (formerly s. 721(1)) provides that a sentence begins when it is imposed, McEachern C.J.B.C. held that it was not possible to reduce a sentence to account for time served while awaiting sentence, if such a discount results in a sentence of less than the required minimum. Thus, in the appellant’s case there was no variation in the sentence imposed by the sentencing judge and his appeal was dismissed.

III. Relevant Statutory Provisions

9 Criminal Code, R.S.C., 1985, c. C-46

344. Every person who commits robbery is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

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.

IV. Conclusion and Disposition

10 The only issue before this Court is whether the sentencing judge should have applied s. 719(3) to consider whether the appellant’s sentence should be reduced to give credit for the time he had already served in custody in relation to these offences, and if so, by how much. For the reasons given in Wust, supra, I conclude that she should have done so.

11 This case, like Arrance, supra, illustrates again the absurdity and the unfairness that results from an interpretation of the Criminal Code that precludes granting credit for time served prior to sentencing. The appellant was detained following his guilty plea, but while awaiting sentence. Such delay is often necessary to permit the court to make a better informed decision about the appropriate sentence by obtaining input from a pre-sentence report, or otherwise through materials collected by the parties. This is particularly important in the case of a first-time offender about whom little may be known. It would be grossly unfair if this period of time, which after a guilty plea is undoubtedly part of the punishment, were to be added to the minimum required by law, rather than computed as part of it.

12 For these reasons and the reasons given in Wust, supra, I would allow the appeal and set aside the judgment of the Court of Appeal. I would remit the matter to the sentencing judge for consideration of how much credit should be given to the appellant for the time served in pre-sentencing custody.

Appeal allowed.

Solicitors for the appellant: Gordon & Velletta, Victoria.

Solicitor for the respondent: The Ministry of the Attorney General, Victoria.

Solicitor for the intervener: The Ministry of the Attorney General, Toronto.