SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 12-3421
DATE: 2012-11-01
RE: R. v. Clinton Boyd
BEFORE: Mr Justice Ramsay
COUNSEL:
Ms G. Gambacorta for the Crown
Ms Larissa Fedak for the accused
HEARD: 2012-10-25
ENDORSEMENT
[ 1 ] On October 25, 2012 I sentenced the offender to nine months imprisonment in addition to 11 months presentence custody for robbery, assault with a weapon and threatening. I gave credit for presentence custody at the approximate rate of 1.4 days credit per day of presentence custody. These are my reasons for so doing.
[ 2 ] Most accused persons are not detained before trial. Bail is generally denied because the accused has a significant previous record or because he or she has reoffended while on interim release. In those cases, enhanced credit for pre-trial custody is not available: s.719 (3.1). The question of enhanced credit for pre-trial custody therefore arises only in the relatively small percentage of cases in which bail is not denied because of the criminal record of the accused and not because bail was revoked for re-offending.
[ 3 ] Section 719 of the Criminal Code provides:
- (1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.
(2) Any time during which a convicted person is unlawfully at large or is lawfully at large on interim release granted pursuant to any provision of this Act does not count as part of any term of imprisonment imposed on the person.
(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).
(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.
[ 4 ] It was not argued that the detention of the offender was motivated by his record or by recidivism while on bail, so I proceeded on the basis that enhanced credit was available.
[ 5 ] During the course of the offender’s imprisonment the guards at the detention centre undertook a refusal to work under the provincial health and safety legislation. The effect on the offender was that he was confined to his cell for 23 hours a day for six weeks. I considered that circumstance to justify increased credit for interim custody. I gave 15 months credit for 11 months interim custody, which is not quite 1.4 to 1.
[ 6 ] I was also asked to increase credit for pre-trial custody on the basis that the offender will be eligible for statutory release after serving two-thirds of his sentence. Post-sentence custody earns remission, while pre-sentence custody does not.
[ 7 ] The seminal case in support of this basis for increasing credit for pre-trial custody is the decision of Mr Justice Green of the Ontario Court in R. v. Johnson, 2011 ONCJ 77, which suggests that, except in cases excluded by subs. 719 (3.1) and the case law, enhanced credit in a ratio in excess of 1:1 (and ordinarily 1.5:1) “is both fair and apposite in every remand offender sentencing case warranting compensation for the loss of remission.” This approach has been followed in the Superior Court: R. v. Summers, [2011] O.J. No. 6377 (Glithero J.). It has not been universally followed in either trial court: R. v. Abubeker, 2011 ONCJ 337 (Finnestad J.); R. v. B.R.S. 2011 ONCJ 484 (Robertson. J.); R. v. Morris; 2011 ONSC 5206 (Harvison Young J.); R. v. Simoes, 2012 ONSC 278 (Hourigan J.). There is also Superior Court authority which would include lack of remission as a factor, but would not make it virtually determinative: R. v. D.A.J., 2011 ONSC 5330 (Quigley J.); R. v. Velez-Lau, 2011 ONSC 4805 (Pattillo J.).
[ 8 ] The Truth in Sentencing Act is remedial legislation, intended to change the existing law and practice with respect to credit for interim detention because of perceived problems caused by the former practice.
[ 9 ] It is not necessary to refer to the Parliamentary record to understand the purpose of the legislation, but the remarks of the Minister of Justice of April 20, 2009 [i] set out the underlying concerns of the executive in detail and show that they were brought to the attention of Parliament.
[ 10 ] The Minister mentioned statutory release and parole as one of the bases for the former system of generous credit and identified three concerns with this system:
a. It erodes public confidence in the justice system.
b. It leads to inadequate punishment.
c. It encourages “some of those accused to abuse the court process by deliberately choosing to stay in remand in the hope of getting a shorter term of imprisonment once they have been awarded credit for time served.”
[ 11 ] The potential for skewing the sentencing process was judicially noticed some time before Parliament acted. In R. v. J.B., 2004 ONCA 39056, Moldaver J.A. said, “It seems to me that lately, the issue of credit for pre-trial custody is taking on a life of its own. Unchecked, it can skew and even swallow up the entire sentencing process. In short, it may be time to revisit the manner in which credit for pre-trial custody is assessed. However, since the matter was not raised or argued, it is best left for another day.”
[ 12 ] The abuse of the system was obvious to anyone who practised criminal litigation. Simple arithmetic (2 › 1.5), known even to the least sophisticated offender, resulted in too many prisoners on remand, by their own choice, in effect serving their sentences up front in the remand centre, without the programmes that provide a benefit not only to them, but to society as a whole. The result of generous credit for pre-trial custody was that the worst offenders avoided the institutions in which there were programmes that could encourage rehabilitation. These unrehabilitated offenders were then even more quickly released to the public.
[ 13 ] What to do about the problem was a matter for legitimate debate, and Parliament held that debate.
[ 14 ] Unlike Green J. in Johnson and Leroy J. in R. v. Sabatine, 2012 ONCJ 310 I do not think it necessary to consider remarks made by Department of Justice staff in committee. The words that were enacted by Parliament are sufficient for my purposes.
[ 15 ] The subsection provides that credit may be increased to a maximum of 1.5 days to 1 day “if the circumstances justify it.” I read that as referring to the particular circumstances of the case, not circumstances that are necessarily incidental to any sentencing proceeding. Parliament knew about remission and chose to limit credit for pre-trial custody, as a rule, to 1:1. I find it hard to conceive that Parliament would have said that credit could be increased “if the circumstances justify it” if it considered that the circumstances always justify it. In my view the language of the amendment, given its purpose and in the context of the Criminal Code and the corrections legislation in which it operates, is not ambiguous.
[ 16 ] I do not think that it is a question of what evidence is called on sentencing to show how lack of remission affects the offender. It is a simple fact that there is no remission for pre-trial custody. Parliament knew that and meant that offenders would no longer be given enhanced pre-trial custody on account of it. Any notional disadvantage is a natural consequence of criminal behaviour.
[ 17 ] In the result I declined to take the effect of statutory remission into account when deciding whether to increase credit for pre-trial custody.
J.A. Ramsay J.
Date: 2012-11-01