R. v. Dinardo, 2015 ONSC 1804
COURT FILE NO.: 31/14
DATE: 2015 03 19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent Crown
Laurie E. Jago, for the Crown
No one appearing for Federal Crown
- and -
PAUL DINARDO
Applicant
Dean D. Paquette and Lauren M. Whilhelm for the Applicant
HEARD: February 27, 2015
RULING ON CONSTITUTIONALITY OF PORTIONS OF S.719(3.1)
OF THE CRIMINAL CODE OF CANADA
Wein J.
[1] Does it contravene the principles of fundamental justice to bar an accused person, detained for a breach of recognizance, from enhanced credit for pretrial custody?
OVERVIEW
[2] Section 719(3.1) of the Criminal Code of Canada, R.S.C., 1985, c. C-46, states that those detained pursuant to section 524(4) or (8) of the Code are not eligible for enhanced credit for time served in pre-trial custody.
[3] The Applicant has pled guilty to fraud-related offences and breach of recognizance. He will have served approximately 709 days in
pre-sentence custody, the date of sentencing being April 15, 2015. Pursuant to s.719 (3.1) of the Code, the Applicant is not entitled to enhanced credit for time served subsequent to his detention under s.524.
[4] The Applicant challenges the constitutional validity of s.719(3.1) insofar as it prevents those detained under s. 524(4) or (8) from receiving enhanced credit for pre-sentence custody. He argues that it deprives him of his liberty in a manner not in accordance with principles of fundamental justice, contrary to s.7 of the Charter, and that it cannot be saved by s.1 of the Charter. The basis of his argument is that the effect of the provision is to make the length of an offender’s sentence determined by a consideration that is irrelevant to sentencing – a given offender’s ability to obtain bail.
FACTS
[5] The Applicant was charged, along with others, in a multi-count indictment relating to an investment fraud scheme involving over 160 individual victims and several million dollars of loss.
[6] The Applicant was arrested on March 27, 2012. Following his arrest, he remained in custody until April 13, 2012, when he was released following a bail review application. One of the terms of his release was that he was not entitled to leave his home without being in the presence of one of his sureties.
[7] On May 24, 2013, the Applicant was detained in a traffic stop after he was seen driving while using a cellphone. He was the sole occupant of the motor vehicle. The Applicant identified himself to the officer, who, after investigation, realized he was in breach of his recognizance as a result of being outside his home and not in the presence of one of his sureties. The Applicant was then arrested for breach of recognizance.
[8] On May 25, 2013, the Applicant’s recognizance was revoked and he was ordered detained pursuant to s. 524(8)(a) of the Criminal Code. On May 2, 2014, the Applicant filed a second application for a bail review, which was denied in part because he had made a deliberate decision to leave his home without one of his sureties. The Applicant has remained in custody since that date.
[9] The Applicant has no prior criminal record.
[10] In summary, the relevant chronology is as follows:
DATE
EVENT
CUSTODY
March 27, 2012
Arrest for Fraud
April 13, 2012
Release on terms
18 days
May 24, 2013
Arrest for Breach
May 25, 2013
Detained: S. 524(8)
1 day
May 2, 2014
Bail denied on review
342 days
April 15, 2015
Sentence hearing
348 days
Total Days in Custody
709 days
[11] The Applicant stands to be sentenced by this Court on April 15th 2015. There will be a joint submission for a sentence of five years in the penitentiary, less time served. The credit for time served will be either 709 days X1 (or 1.94 years), or 709 days X1.5, equalling 1064 days (or 2.91 years). This is an undeniably significant difference, of 355 days.
[12] Interestingly, the Crown initially took the position that the length of time requested by the Crown would be 5 ½ years if the pre-trial custody was credited at 1.5:1, but only 5 years if it was credited at 1:1. In other words, the Crown was prepared to alter its position to ameliorate the effect of the section if it was upheld. I cannot think that the Crown exercising its discretion in this way in relation to the impugned section was an effect intended by Parliament, but in any event the Crown has since resiled from that position and will ask for 5 years in either event of the outcome of this Application. However the possibility of such an exercise of Crown discretion, which would normally be hidden from open scrutiny, does seem contrary to the intent of the section.
ISSUE
[13] The issue before this court is whether s. 719(3.1) of the Criminal Code results in an unconstitutional violation of s.7 of the Charter. The assessment of this issue involves three separate and sequential questions:
Does the impugned provision deprive the Applicant of his liberty right guaranteed by s.7 of the Charter?
If so, is that deprivation in accordance with principles of fundamental justice?
If a violation of s.7 is found, is the impugned provision saved by s.1 of the Charter?
LAW
The Text of the Provision
[14] Section 719(3) is a sentencing provision that sets out the general rule that credit for pre-trial custody is limited to a ratio of 1 to 1:
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.
[15] Section 719(3.1) of the Code limits the court’s discretion to grant enhanced credit for pre-trial custody:
719(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).
Legislative History
[16] The relevant provisions were introduced in October 2009 as part of the Truth in Sentencing Act S.C. 2009, c.29 (“TISA”). The prior regime for crediting pre-sentence custody and the legislative history of these provisions was outlined by the Supreme Court of Canada in R v. Summers, 2014 SCC 26 at paras 20-31.
[17] Briefly, prior to the enactment of TISA, the Code imposed no restrictions on the reasons for giving enhanced credit, or on the rate at which credit could be given. At a minimum, offenders were given credit at a ratio of 1:1, in recognition of the fact that it would be unfair not to count time spent in pre-sentence custody towards an offender’s ultimate sentence. Almost always, however, courts granted enhanced credit in recognition of the fact that pre-sentence custody is more onerous than post-sentence custody in two respects:
Quantitatively, legislative provisions for parole eligibility and early release do not account for time spent in pre-sentence custody. Therefore, a failure to give some measure of enhanced credit could result in offenders who fail to secure bail serving a longer time in custody.
Qualitatively, detention remand centres ordinarily do not provide educational, training, or rehabilitative programs to accused persons awaiting trial. Additionally, “overcrowding, inmate turnover, labour disputes and other factors also tend to make pre-sentence detention more onerous.” (Summers at para. 28).
[18] Over time, the practice of courts tended towards granting enhanced credit at a ratio of 2:1. Where extreme circumstances justified it, enhanced credit was sometimes granted at even higher ratios.
[19] It was against this background that Parliament introduced TISA, limiting the discretion of trial judges to grant enhanced credit. The intention of Parliament in doing so was to restrict the amount of pre-sentence credit and to increase transparency in the sentencing process, thereby enhancing the repute of the administration of justice. (Summers, paras 51-53)
Section 7 and 1 of the Charter
[20] Section 7 of the Charter provides:
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.
[21] The legal framework that governs the analysis of a constitutional challenge under s.7 was set out by the Supreme Court of Canada in Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General), 2004 SCC 4. There are three steps in the analysis. The Applicant must demonstrate, on a balance of probabilities:
That s/he has legal standing to bring the challenge;
That the law results in a real or imminent deprivation of life, liberty, or security of the person, or a combination of these interests; and,
That the deprivation is not made in accordance with principles of fundamental justice.
[22] The principles of fundamental justice have evolved under Charter jurisprudence to include concepts of arbitrariness, over-breadth, and gross disproportionality. In Carter v. AG Canada 2015 SCC 5, the Court recognized these three as central vices in comparing the object of the law that is challenged ( para 71-73). These are concepts which address “failures of instrumental rationality”, that is, situations where the law is inadequately connected to its objective or goes too far in seeking to obtain it: see Canada (Attorney General) v. Bedford, 2013 SCC 72 [Bedford] at para. 107, referring to Hamish Stewart in Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (2012) at p. 151.
[23] Because of the consideration of principles of fundamental justice within the context of the s. 7 analysis, it will rarely be possible to ‘save’ a s.7 breach by resort to s.1 of the Charter. The Supreme Court of Canada said in Bedford:
It has been said that a law that violates s.7 is unlikely to be justified under s. 1 of the Charter (Motor Vehicle Reference, at p. 518). The significance of the fundamental rights protected by s. 7 supports this observation. Nevertheless, the jurisprudence has also recognized that there may be some cases where s. 1 has a role to play (see, e.g., Malmo-Levine, at paras. 96-98). Depending on the importance of the legislative goal and the nature of the s. 7 infringement in a particular case, the possibility that the government could establish that a s.7 violation is justified under s. 1 of the Charter cannot be discounted (para 129).
[24] Section 1 of the Charter reads:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[25] The Crown bears the onus at this stage to show on a preponderance of probabilities that the violation is justified (R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103 [Oakes] para 71). The Crown must show:
The objective that the impugned provision seeks to achieve is of sufficient importance to justify overriding a constitutional right;
The means chosen are proportionate to the objective in that:
a) the means chosen are rationally connected to that objective;
b) the law minimally impairs the affected individual’s rights; and
c) there is proportionality between the deleterious and salutary effects of the law (Oakes, para 69-71).
The Case Law
[26] To date, three cases have considered the constitutionality of s.718 (3.1): R. v. Safarzadeh-Markhali, 2014 ONCA 627 [Safarzadeh-Markhali] (leave to appeal granted: [2014] S.C.C.A. 489); R. v. Chambers, 2014 YKCA 13 [Chambers] (application for leave to appeal filed December 5, 2014, 2014 Carswell Yukon 125); and Her Majesty the Queen v. Courtney Nadine Bittern, 2014 MBPC 51 [Bittern] (application for leave to appeal filed October 30, 2014).
[27] There are also reported to be a number of cases pending in this province and other provinces on the issue raised in the within case.
[28] In summary, at this stage:
• Safarzadeh-Markhali declares unconstitutional that part of s. 719(3.1) that relates to detention based on prior convictions.
• Chambers declares the operation of s. 719(3.1) in conjunction with s.524 (4) and (8) to be valid.
• Bittern declares the operation of s. 719(3.1) in conjunction with s.524(4) and (8) to be unconstitutional.
[29] The Court of Appeal of this province has not addressed the specific issue, but provides some guidance on the approach to be taken in the decision in Safarzadeh-Markhali. While Chambers and Bittern are two decisions directly on point, neither is from Ontario and they are conflicting in the result.
[30] In Safarzadeh-Markhali, the accused was charged with several drug and firearms offences. His application for judicial interim release was denied on the basis of his previous convictions. The accused was therefore detained pursuant to s.515(9.1) of the Code, which requires that where bail is denied primarily because the accused has a prior conviction, the presiding justice must state that reason in writing on the record.
[31] As a result of the operation of s.719(3.1) in conjunction with s.515 (9.1), the accused was precluded from obtaining enhanced credit for pre-trial custody. He was convicted at trial and received a 6-year sentence. At the sentencing hearing, the accused challenged the constitutionality of s.719(3.1) as an unjustified violation of his s.7 Charter right to liberty. The trial judge granted the application, declared that portion of s. 719(3.1) unconstitutional, and awarded him enhanced credit at a ratio of 1.5:1.
[32] The Ontario Court of Appeal upheld the trial judge’s decision, declaring inoperative the portion of s.719(3.1) which directs that offenders are ineligible for enhanced credit where the reason for detention was stated in the record under s.515(9.1), that is, detention because of a previous conviction.
[33] The Court of Appeal made a number of findings. First, the Court held that the principle of proportionality in sentencing is a principle of fundamental justice. Proportionality ensures that a sentence is just by reflecting the gravity of the offence and the moral blameworthiness of the offender:
In my view, the principle of proportionality in sentencing – a principle expressed in the Code itself and rooted in Canada’s legal tradition – is a principle of fundamental justice. That principle is understood and endorsed by all Canadians and is applied in our courts on a daily basis. It was described as a principle of fundamental justice by LeBel J. in R. v. Ipeelee, 2012 SCC 13, at para. 36. He added, at para. 37:
The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing -- the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system.…
Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other (para 73).
[34] The proportionality principle was also said to be informed by the principle of parity, set out in s.718.2(b) of the Code, which requires that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances" (paras 77-78).
[35] The Court rejected the argument by the Crown that the applicable standard is gross disproportionality, holding that the principle of proportionality governs the sentencing process, while the principle of gross disproportionality applies to the result (para 82).
[36] The Court concluded that the effect of the proportionality principle on the sentencing process is that Parliament is precluded from making sentencing contingent upon factors unrelated to the determination of a fit sentence (para 85).
[37] Secondly, in application to the case, the Court found that s.719(3.1) violates s.7 of the Charter in a manner not in accordance with principles of fundamental justice by offending the proportionality principle. Writing for the majority, Strathy C.J. wrote:
In this case, the impugned provision offends the proportionality principle, and the parity principle which is a vital part of it, by subjecting identically placed offenders to different periods of incarceration, depending on whether they are able to obtain bail, for reasons that are irrelevant to sentencing. It also produces effects that are grossly disproportionate. (para 90)
[38] Third, turning to the s.1 analysis, the Court ruled that the violation was not justified. The Court found that the objectives of the impugned provision were pressing and substantial, which objectives include:
…to prevent manipulation of credit for pre-sentence custody and to enhance public safety by increasing the likelihood that repeat offenders, and those who breach the conditions of their bail, will serve part of their sentence in post-sentence custody with access to the rehabilitative programs that would be unavailable in remand centers. (para 110).
[39] However, the Court concluded that there was no rational connection between the objective and the means chosen, because the section results in “an arbitrary distinction between offenders with criminal records, depending on whether they seek bail or not and whether, if denied bail, they receive an endorsement under s. 519(9.1)” (para 114).
[40] Neither was the provision found to minimally impair an offender’s rights, because it bases the granting of enhanced credit on the outcome of a bail hearing, which itself is entirely irrelevant to the determination of a fit sentence (para 115-120).
[41] Finally, the Court concluded that the benefits cannot justify the limitation because they are “at best unevenly distributed” – in light of the fact that similarly situated offenders may receive different sentencing outcomes depending on whether they seek bail, whether they are granted bail, and whether they receive an endorsement under s.519(9.1) (para 121-122).
[42] In Safarzadeh-Markhali, the Court left open the question arising in this case, concerning s. 524(4) and 524(8):
[124] The words “the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or” in s. 719(3.1) of the Code violate s. 7 of the Charter and are not saved by s. 1. Those words are declared to be of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982. Accordingly, the Crown’s appeal is dismissed. The validity of the references to ss. 524(4) and (8) in s. 719(3.1) is not before us and it is not appropriate to make any declaration in relation to their validity.
[43] In Chambers, the Yukon Court of Appeal came to a different conclusion concerning the constitutional validity of that part of s.719(3.1) operating in conjunction with s.524(4) and (8) – the aspect of the section directly in issue in this case. In Chambers, the accused was an Aboriginal person who pled guilty to several offences, including breaking and entering. One offence - uttering death threats – was committed while the accused was on interim release.
[44] He was convicted of all of these charges and received a global sentence of 18 months. At the sentencing hearing, the accused argued that his entitlement to enhanced credit was not precluded by s.719(3.1) because he did not have a show cause hearing.
[45] Briefly, the basis of this argument is that a detention order pursuant to s.524(8) encompasses two stages: (1) the presiding justice must determine on a balance of probabilities that the accused contravened or is about to contravene his release order, or the presiding justice must find reasonable grounds to believe that the accused has committed an indictable offence while on release, and must therefore revoke the underlying process; and (2) the accused must be unable to show why his detention is not justified within the meaning of s.515(10). Because the accused in Chambers never had a show cause hearing, he argued that he was never detained pursuant to s.524(8). This latter issue is not present in the within case, as it is clear that the Applicant was detained pursuant to s.524(8), but the issue does demonstrate an additional possibility for unconstitutional effects of the section.
[46] The accused in Chambers also argued that the impugned provision was an unconstitutional violation of s.7 of the Charter because it has a grossly disproportionate effect on similarly placed offenders, who, but for the application of s.719(3.1) in conjunction with s.524(4) and (8), would receive similar sentences.
[47] The trial judge accepted the accused’s statutory interpretation argument that he was not detained under s.524(8), and granted him enhanced credit for time served in pre-trial custody. The trial judge also accepted the accused’s Charter argument, finding that the impugned provision had a grossly disproportionate effect on Aboriginal persons, given their increased likelihood of being denied bail, and the increased difficulty they face in complying with bail conditions in light of the effect of substance abuse on compliance rates. The Crown appealed on both of these grounds.
[48] The Yukon Court of Appeal disagreed with the trial judge’s conclusions on both arguments.
[49] Regarding the issue of statutory interpretation, the court found that the accused was detained pursuant to s.524(8). The court reasoned that:
[T]here is no rational distinction to be drawn between an accused detained pursuant to a revocation of process or a formal detention order following a show cause hearing; in either circumstance, the accused is surely "detained in custody" under s. 524(8) of the Code (para 66).
[50] The Court rejected the argument made by the respondent offender that “the fundamental principle of proportionality in sentencing is breached if a sentence is merely disproportionate” (para 111). The court found that, pursuant to s.12 of the Charter, the constitutionality of a punishment is breached only if the punishment is grossly disproportionate, and this standard is the same regardless of whether the Applicant is proceeding under s.7 or under s.12 (para 112).
[51] The Court of Appeal also rejected the constitutional challenge based on s.7 of the Charter. On the question of arbitrariness, the court found a rational connection between the means and the objective, stating:
Parliament has chosen to [restrict the amount of pre-sentence credit] by capping that credit at 1.5:1, if circumstances justify it. But Parliament has also targeted a population which includes those who find themselves back in custody because of their own misconduct on bail, who are not entitled to an award of this enhanced credit….
Clearly, viewed in this light, there is a rational connection between the objectives of s. 719(3.1) and the limits it imposes on the liberty of persons subject to it, like Mr. Chambers. The section is not arbitrary (para 96, 98)
[52] For similar reasons, the Court found that the law was not overly broad (para 99-104). The Court further disagreed that the impugned provision had a grossly disproportionate effect on aboriginal offenders because “the effective imposition of a longer sentence of incarceration is based on the wrongfulness of this subset of offenders' conduct while on judicial interim release. It is not based on offenders' ‘isolation and inability to pay’ and resulting inability to obtain bail” (para 114).
[53] Shortly before the release of the decision in Chambers, Safarzadeh-Markhali was decided. The Yukon Court of Appeal considered its application and held that the disproportionate and arbitrary effects shown to exist with respect to s.515(9.1), in Safarzadeh-Markhali, did not obtain with respect to s.524(4) or (8), because offenders were caught by those latter sections regardless of whether they are detained pursuant to a revocation of process or after an unsuccessful application for bail and show cause hearing. Therefore, the Yukon Court of Appeal concluded that all s.524(4) and (8) offenders are treated similarly – in contrast to s.515(9.1) offenders who are only caught by that section if the reason for their detention (a prior conviction) is noted on the record following a show cause hearing.
[54] The last case, Bittern, dealt directly with a s.7 challenge to s.719(3.1) on the basis that it offends the principle of proportionality by precluding an offender from being eligible for enhanced credit for pre-sentence custody where the person is detained under s.524(4) or (8).
[55] In that case, the offender was an aboriginal who was arrested for robbery and released on a Promise to Appear with conditions, including a curfew and a requirement to notify the court before moving. She was subsequently twice arrested for breach of her recognizance and released. On her third arrest for breach of recognizance she was denied bail.
[56] She later pled guilty and, on sentencing, she challenged the constitutionality of s.719(3.1) and applied for enhanced credit for her time spent in pre-sentence custody after her bail was revoked.
[57] The Manitoba Provincial Court, relying on Safarzadeh-Markhali, accepted that the appropriate standard to be applied is proportionality and not gross disproportionality (para 82). For the same reasons as those laid out in Safarzadeh-Markhali, the court found that the impugned provision violates s.7 by interfering with the process of determining a fit sentence in a manner not in accordance with the fundamental principle of proportionality.
[58] The court further found that the impugned provision produces results that are grossly disproportionate on two bases. First, in the case of Ms. Bittern, the result of the provision was that she was liable to spend approximately 7.4 months extra in jail, for reasons entirely irrelevant to the determination of a proper sentence. This in itself was found to be grossly disproportionate (paras 70-75).
[59] Secondly, the court found that the result is also grossly disproportionate when considered in light of the fact that a similarly situated offender who did not attempt to seek bail, or who was denied bail on other grounds, or who was able to show cause, would be entitled to enhanced credit, while Ms. Bittern would not (paras 78-82).
[60] The court concluded that the violation could not be saved by s.1 of the Charter because it failed to minimally impair the right to liberty, and the effects were not proportionate to the objective (paras 115-117). Other arguments based on over-breadth under s. 7 and equality rights under s.15 of the Charter were considered in Bittern, but have not been raised in this case.
POSITION OF THE PARTIES
[61] The Applicant’s position is that s.719(3.1) in conjunction with s.524(4) and (8) constitutes an unjustified violation of his right to liberty under s.7 of the Charter.
[62] The Applicant argues that, while the analysis in Safarzadeh-Markhali is related to the application of s.719(3.1) in conjunction with s.515(9.1), this analysis applies with equal force when the provision is applied in conjunction with s.524(4) and (8). Both cases deal with the issue of allowing the outcome of a bail decision to dictate the length of the custodial portion of an offender’s sentence. As such, the Applicant argues that Safarzadeh-Markhali is persuasive authority that the impugned provision deprives an individual of their liberty in a manner not in accordance with principles of fundamental justice, and cannot be saved by s.1 of the Charter.
[63] The Crown acknowledges that the impugned provision engages an individual’s liberty interest, but argues that it does so in a manner that is in accordance with principles of fundamental justice. The appropriate standard, the Crown asserts, is that of gross disproportionality and not proportionality. If this court finds a violation of s.7 of the Charter, the Crown argues that the impugned provision is nonetheless saved by s.1.
[64] The Crown’s position is that Safarzadeh-Markhali is not binding authority because it did not deal with the constitutionality of s.719(3.1) in conjunction with s.524(4) and (8). The Court expressly declined to do so. The Crown instead relies on Chambers, which is the only appellate case to have dealt with this issue directly. In Chambers, the constitutionality of the impugned provision was upheld. The court found that the appropriate standard is gross disproportionality, and that the provision does not violate s.7. In addition, the Crown relies on Carter as affirming that the standard to be met is gross disproportionality.
ANALYSIS
Section 7
[65] It is undisputed that the provision engages the Applicant’s liberty interest because it has the effect of increasing the overall length of his incarceration (Safarzadeh-Markhali at para 66).
[66] For the following reasons, I also find that the deprivation is not in accordance with principles of fundamental justice.
[67] First, pursuant to Safarzadeh-Markhali, it is now established that the appropriate standard for determining a breach in the context of this section is proportionality and not gross disproportionality. The former applies to the sentencing process, while the latter applies to the result. Safarzadeh-Markhali states to this effect:
80 Indeed, the proportionality principle is routinely applied in sentencing for the very purpose of obtaining just and predictable results. It is integral to a just sentence and to public confidence in the sentencing process
82 I agree with Mr. Safarzadeh-Markhali that Malmo-Levine is distinguishable, because it dealt with the constitutionality of a punishment. I accept his submission that the principle of proportionality governs the sentencing process, while the standard of gross disproportionality applies to the result. An offender is entitled to a process directed at crafting a just sentence.
[68] The Crown’s argument – that the Supreme Court of Canada’s decision in Carter, establishes that only three principles of fundamental justice are recognized in the jurisprudence under s.7 (arbitrariness, over-breadth, and gross-disproportionality), and that this court is bound by that finding – must fail, for two reasons.
[69] First, Carter did not set out an exhaustive list of principles of fundamental justice. In fact, the Court states in Carter that “While the Court has recognized a number of principles of fundamental justice, three have emerged as central in the recent s.7 jurisprudence” (para 72, emphasis added).
[70] In the context of the criminal law, Courts have recognized a multitude of other principles of fundamental justice not detailed in Carter. These are outlined in Safarzadeh-Markhali, and include: the prohibition of the interrogation of a youthful prisoner without access to counsel; procedural fairness; the concept that only voluntary conduct should attract criminal liability; the principle that no one may be convicted or punished for an act or omission that is not clearly prohibited by law; and the presumption that children have diminished moral blameworthiness and culpability when they commit an offence (para 71; citations omitted).
[71] Second, Safarzadeh-Markhali itself clearly establishes that proportionality in sentencing is a principle of fundamental justice that applies to the sentencing process; this court is bound by that precedent (paras 73-86).
[72] The Crown makes the submission that the Supreme Court of Canada in Carter dismissed proportionality as a principle of fundamental justice. This is not so. The Court was asked to recognize the principle of parity, which is intimately connected to the principle of proportionality, as a new principle of fundamental justice. At para 92, the court held:
Parity in the sense invoked by the appellants has not been recognized as a principle of fundamental justice in this Court’s jurisprudence to date. Given our conclusion that the deprivation of Ms. Taylor’s s. 7 rights is not in accordance with the principle against overbreadth, it is unnecessary to consider this argument and we decline to do so (emphasis added).
[73] These comments clearly indicate that the Supreme Court of Canada did not decide whether proportionality in sentencing is a principle of fundamental justice. The court in Safarzadeh-Markhali, however, did.
[74] With regard to the issue of whether the principle to be applied is one of “proportionality in sentencing” as opposed to the test of “gross disproportionality”, I refer back to the comment in Safarzadeh-Markhali at paragraph 90, which clarifies that the principle offended is one of “proportionality in sentencing”. In simply noting that the “effects are grossly disproportionate” without further analysis, the Court allows the inference that any breach of this principle, because it relates to time in custody, is almost certain to have grossly disproportionate effects. In this case that is undeniably so.
[75] The principle of proportionality in sentencing is laid out in s.718.1 of the Code, and requires that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. The nature of this principle was clearly outlined by LeBel J. writing for the majority of the SCC in R v. Ipeelee, 2012 SCC 13:
37 The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Reference re s. 94(2) of the Motor Vehicle Act (British Columbia), 1985 81 (SCC), [1985] 2 S.C.R. 486 (S.C.C.), at p. 533:
It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system.
Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.
[76] Intimately linked to the principle of proportionality is the concept of parity, which is recognized in s. 718.2(b) of the Code, and requires that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances" (Safarzadeh-Markhali, paras 77-78). In R. v. Arcand, 2010 ABCA 363 at paragraph 61, parity was described as an "indispensable element of the proportionality principle” (Safarzadeh-Markhali at para. 78).
[77] The impugned provision offends the principle of proportionality, including the concept of parity, because it makes the determination of a fit sentence dependent upon an irrelevant factor – the ability of the offender to get bail. As a result, offenders caught by this provision (i.e., those arrested for reasons listed in s.524(4) or (8), and who have a bail hearing and are unable to show cause) will ultimately serve a longer sentence than identical offenders in identical circumstances in the situations where the similarly situated offender is able to show cause and secure his/her release.
[78] Potentially, where the similarly situated offender does not apply for bail and thus never becomes subject to a detention order under s.524(4) or (8), such an offender might also continue to be eligible for enhanced credit, in contrast to an offender formally detained under s.524(4) or (8) The impact is also a breach of the principle of proportionality in sentencing.
[79] The following example is illustrative:
Three offenders, A, B, C (A representing the Applicant) are released on bail. Each of them is arrested for the same alleged breach of their recognizance at the same time. Each is convicted and receives the same sentence: 48 months (4 years)
• Offender A has a bail hearing and is detained. He is unable to present a suitable plan of release sufficient to attenuate the secondary ground concerns and therefore unable to show cause.
• Offender B also has a bail hearing. Offender B, however, does present a suitable release plan and is able to show cause and secure his release.
• Offender C does not attempt to secure bail. An order is never made detaining him pursuant to s. 524(4) or (8).
[80] The consequences to each offender are shown below in a chart presented by the Applicant. As the table demonstrates, the offender could serve up to an additional 14.7 months in custody due to his inability to obtain bail.[1]
Offender
BREACH
Credit Ratio
Credit Given for 20 mos. PSC following breach (in months)
Sentence Imposed in addition to PSC (in months)
Sentence Served (accounting for possible parole and warrant expiry) (in months)2
Overall Time Actually in Custody (in months)
A
1:1
20
28
9.3-18.7
29.3-38.7
B
On Bail
0
48
16-32
16-32
C
1.5:1
30
18
6-12
26-32
[2]
[81] The variation in time in custody is not attributable to any factor related to the determination of a fit sentence. It has nothing to do with the offender’s degree of responsibility or the gravity of the offence. It is attributable solely to the statutory prohibition on enhanced credit as a result of the offender’s inability to obtain bail. In turn, the ability to obtain bail may turn on factors that have nothing to do with the determination of a fit sentence, such as access to good sureties, bail monies, residences, or work.
[82] The Supreme Court of Canada itself recognized this as problematic in R. v. Summers, where it wrote:
[I]t is difficult to see how sentences can reliably be “proportionate to the gravity of the offence and the degree of responsibility of the offender” (s. 718.1) when the length of incarceration is also a product of the offender’s ability to obtain bail, which is frequently dependent on totally different criteria (para 65).
[83] Importantly, the differential treatment in this case does not arise because of the offender’s bad behaviour while out on bail, as was contended by the Crown. This is because those who breach their recognizance or commit indictable offences while on release may still be able to secure their release if they are able to present a suitable plan of release and to therefore show cause for release. The ability to do so may be related to factors entirely beyond the offender’s control, such as whether s/he has friends or family willing to act as a surety or whether s/he is able to obtain sufficient bail monies to secure his or her release. As the SCC recognized in Summers, generally speaking, this means that vulnerable and impoverished offenders will be less likely to obtain bail (para 66).
[84] In Safarzadeh-Markhali, the court notes that “the principle of proportionality is closely associated with the established principle that a law that violates life, liberty or security of the person cannot be arbitrary” (para 85). Yet the effect of the law as just discussed may occasion results that are entirely arbitrary.
[85] In this regard, the holding in Chambers is distinguishable. The court there found that the provision occasioned no arbitrariness because:
(a) there is a meaningful distinction between similarly placed offenders who have been subject to a revocation of bail by reason of s.524(4) or (8) and those who have been denied bail for reasons unrelated to their conduct after the offence; and
(b) all s.524(4) and (8) offenders are treated similarly because, in the court’s view, they are caught by the section whether they are formally ordered detained after an application for bail or they are detained on a revocation of process and thereafter consent to remand without exercising their right to apply for bail.
[86] The characterization in (a) above is problematic. First, the important distinction created by the impugned provision is not between those who have been denied bail by reason of s.524(4) or (8) and those who have been denied bail for reasons unrelated to their conduct after the offence. The problematic distinction is between those who succeed and those who fail to show cause following a s.524 detention.
[87] It is important to note that the Yukon Court of Appeal did not consider the differential treatment that arises in such circumstances between offenders who are able to show cause following a s.524 detention and those who are not, which is a key difference argued in this case.
[88] Second, the issue in subparagraph (b), of whether a s.524 detention arises upon revocation of process rather than after a show cause hearing, has not been determined in this jurisdiction.
[89] Notably, several cases have come to a different conclusion than that reached in Chambers, finding that a s.524 detention arises only after the accused is denied bail following a show cause hearing; as referred to in Bittern (para. 5). If this interpretation is adopted, another problematic distinction arises between those who seek a show cause hearing and those who do not. While I accept that the approach in Chambers may be the correct approach on this sub issue, the issue does not arise in this case, so it need not be determined here. However, if the approach in Bittern were to be rejected on this issue, in favour of the conclusion drawn in Chambers, the main distinction as set out in paragraphs 83 and 84 above applies.
[90] The Crown also contests that the section occasions arbitrary results by insisting that the provision does not interfere with the trial judge’s discretion to craft a fit and proper sentence, stating that “a judge may set the length of the sentence based on the gravity of the offence, mitigating or aggravating factors, parity with like offences, and any other appropriate considerations.”
[91] To the extent that this position suggests that any differential result created by s.719(3.1) can be implicitly taken into account by the trial judge in crafting the final sentence, it would clearly be wrong. If the section is declared valid, a trial judge cannot circumvent its impact by artificially reducing the sentence otherwise determined to be appropriate.
[92] Furthermore, at issue here is not whether the impugned provision affects the ultimate sentence imposed on an offender by interfering with the trial judge’s discretion to craft a fit and proper sentence, which is a results-based inquiry (Safarzadeh-Markhali at para. 30). Rather, the issue here is whether the impugned provision affects the ultimate period of incarceration served by similarly situated offenders by interfering with the trial judge’s discretion in the sentencing process. More particularly, the issue is whether the sentencing process is affected in a manner that still allows for proportionate results.
[93] As noted above, the clear language of the impugned provision is not to deny enhanced credit because of bad behaviour, but because of the inability to obtain bail, which is entirely irrelevant to the determination of a fit sentence. For this reason, the provision engages an offender’s liberty interest in a manner not proportionate to the gravity of the offence or his/her degree of responsibility. It therefore violates s.7.
[94] Even if the provision denied enhanced credit because of bad behaviour, it offends the principle of proportionality in sentencing on two other grounds.
[95] First, the provision allows for the lengthening of a sentence based on an aggravating factor that is not proven beyond a reasonable doubt.
[96] Pursuant to s.724(3)(e), if the Crown wishes to rely on an aggravating fact on sentencing, it must prove the fact beyond a reasonable doubt. However, under s.524(4) and (8), an offender may be detained where: (a) s/he is shown to have contravened his/her release order or has been about to contravene the order, on a balance of probabilities; or (b) there are reasonable grounds to believe that s/he has committed an indictable offence while on release. When this section operates in conjunction with s.719(3.1), the effect is that the offender’s overall period of incarceration is lengthened on the basis of facts not proven beyond a reasonable doubt.
[97] This state of affairs fails to respect the principle of proportionality because, if the offender’s bad behaviour – a breach or even anticipated breach – is the justification for the increased incarceration, the failure to prove this bad behaviour beyond a reasonable doubt may result in an offender being denied enhanced credit where s/he has not actually committed the bad behaviour in question, or is not proved beyond a reasonable doubt to have committed it.
[98] In fact, the Crown itself concedes that a s.524(4) or (8) detention continues to be operative for the purposes of s.719(3.1) even where the offender pursues a trial on the breach charge, whether breach of recognizance, anticipated breach of recognizance, or the commission of an indictable offence, and is subsequently acquitted of that charge or has the charge stayed (see Bittern, para 57)
[99] Secondly, even where the offender is guilty of the underlying charge forming the basis for the s.524 detention, the provision does not allow for any discretion to examine the nature or extent of the breach, or whether circumstances exist to explain or account for the breach. For example, as was recognized by the trial judge in Chambers, Aboriginal persons may experience increased difficulty in complying with bail conditions, in accord with the known effect of substance abuse on compliance rates. In a similar vein, there is a stark difference between an offender who deliberately breaches his terms of release and an offender who does so for circumstances that might later be found to be beyond his control – e.g., where an offender misses his curfew because his transport was delayed due to bad weather conditions.
[100] Viewed in this light, the automatic statutory denial of enhanced credit may occasion disproportionate results on some offenders where the bad behaviour in question does not merit an increased period of incarceration.
[101] Third, the length of time spent in pre-trial custody itself may vary without any regard to the actions of the offender. Where the time between the breach and the trial is short, the difference between regular and enhanced credit may be small; but the difference may be much larger if the time to trial is lengthy, which can occur simply because of voluminous disclosure or because the caseload in the particular jurisdiction results in a longer wait for trial. Therefore, factors completely outside the conduct of the offender may in this way impact directly on the time spent in custody, irrespective of the factors relevant on sentencing.
[102] In conclusion, the impugned provision engages an individual’s liberty interest in a manner not in accordance with the fundamental principle of proportionality in sentencing. A breach of s. 7 of the Charter has been established.
Section 1 of the Charter
[103] Factors considered in the s.7 analysis of the principles of fundamental justice will also be relevant to the s.1 analysis.
i. Pressing and Substantial Objective
[104] At the first stage of the s.1 inquiry, the court must determine whether the objective of the provision in question is pressing and substantial.
[105] The objectives of the impugned provision have been established in Summers (paras 51-58) and Safarzadeh-Markhali (paras 109-110):
(a) To prevent manipulation of credit for pre-sentence custody by offenders delaying their trial so as to benefit from a longer period of incarceration being subject to enhanced credit;
(b) To promote public safety by increasing the likelihood that offenders who breach their conditions of bail will serve part of their sentence in post-sentence custody with access to rehabilitative programs that are generally unavailable in remand centres; and
(c) To improve transparency in the sentencing process and the determination of enhanced credit.
[106] These objectives have been determined to be pressing and substantial in Safarzadeh-Markhali.
[107] The next consideration is whether the means chosen to effect these objectives are reasonable and demonstrably justified pursuant to the three lines of inquiry outlined in Oakes.
ii. Rational Connection
[108] The question at this stage of the inquiry is whether there is a causal connection between the infringement and the benefit sought “on the basis of reason or logic” (Carter at para. 99).
[109] The Crown relies on Chambers for the proposition that the impugned provision is rationally connected to its objectives because it is targeted against a subset of the population who find themselves back in custody because of their own misconduct on bail (Chambers, paras 96-98). Further, the Crown asserts that denying enhanced credit to these offenders, and thereby ensuring that they serve longer sentences, is rationally connected to the goals of public safety and to ensuring that such “recidivist” offenders benefit from rehabilitation programs.
[110] I disagree that there is a rational connection to the objectives. The impugned provision applies to persons who have not been convicted of any additional offence, but who are merely charged with a breach of conditions of bail, or who have been found to be “about to contravene” the terms of release, or who are believed, on reasonable grounds, to have committed an indictable offence while on release. As well, the impugned provision does not automatically deny enhanced credit to these persons. It denies credit only to those in these sub-groups who were subsequently unable to obtain bail.
[111] As was stressed in Safarzadeh-Markhali, this creates an arbitrary distinction between offenders who breach their bail conditions depending on whether they are able to show cause.
[112] Furthermore, assuming that a s.524 detention does not arise where the offender has not proceeded to a show cause hearing, an individual who breaches their bail conditions may preserve their ability to obtain enhanced credit simply by opting not to seek bail or continuously adjourning their hearing. While the cases on this point are conflicting, and the issue is not present in this case, this possibility goes against the purpose of the section. In such circumstances, the legislation may promote the very manipulation it was designed to prevent. It may also discourage an offender from making a bail application, and therefore undermine the accused’s constitutional right to bail (Safarzadeh-Markhali, paras 113-114).
[113] Finally, the impugned provision captures persons who are detained under s.524, but who are ultimately acquitted of the charges leading to that detention, or who are able to have those charges stayed. This further undermines the rational connection between the impugned provision and the benefits sought.
iii. Minimal impairment
[114] The minimal impairment analysis questions whether the impugned provision impairs the Applicant’s Charter right as minimally as possible.
[115] Importantly, the government must be afforded deference here because the “tailoring process seldom admits of perfection.” Accordingly, the law need only fall within “a range of reasonable alternatives” (Safarzadeh-Markhali at para 116, citation omitted).
[116] The Crown argues that the provision minimally impairs rights with reference to the fact that the default position is to grant credit at a ratio of 1:1. On that basis, the Crown asserts that the impact of the provision on offenders caught by it is simply to refuse the benefit of enhanced credit, rather than to impose an additional punishment.
[117] This position is problematic for two reasons. First, in Summers, the Supreme Court of Canada held that the qualitative and quantitative circumstances justifying enhanced credit can arise in virtually every case in which an offender spends time in pre-trial custody. While this might result in the default position (1:1) being applied less than the exception (1.5:1), the Court found that this was justified in part because:
Crediting a day in pre-sentence custody as a day served is insufficient to account for the full prejudicial circumstances of remand custody; enhanced credit accounts for both loss of eligibility for parole and early release (circumstances with quantitative impact) and the harshness of the conditions (circumstances with qualitative impact): para 49.
[118] It is clear, therefore, that the granting of enhanced credit is not simply a benefit, but is a remedial measure aimed at compensating for the prejudicial circumstances experienced by offenders in pre-trial custody.
[119] The Crown’s submission on this point is that Parliament has the authority to simply negate the assumption that these prejudicial circumstances exist in relation to those who breach their bail conditions. However, the qualitative and quantitative impact of pre-trial custody does not vary between those who are detained because they breached their bail conditions and those who are detained for other reasons. In either case, the harshness of the conditions remains constant, and time spent in pre-trial custody is not accounted for in determining eligibility for parole and early release.
[120] Second, the Crown’s position that the section does not confer any additional punishment on offenders is inconsistent with its position that the impugned provision is justified because it is targeted at a subset of the population who find themselves back in custody because of their own misconduct. It is difficult to characterize the effective imposition of a longer term of incarceration on individuals who are seen as breaching their release terms as anything but a punishment for that misbehaviour.
[121] It is certainly true that an offender’s bad behaviour while on bail may be a factor that a trial judge would consider when crafting a fit sentence and determining whether to grant enhanced credit. For example, if the underlying breach were serious, enhanced credit might be denied, and/or a consecutive sentence could well be imposed. In this case, however, the statutory provision constitutes an absolute bar to enhanced credit based on an offender’s inability to obtain bail.
[122] Furthermore, as discussed above, the Crown is not required to prove the aggravating factors under s.524(4) and (8) beyond a reasonable doubt, and the section continues to apply even where an offender is subsequently acquitted of the s.524 charges in question.
[123] The section also does not allow for flexibility in dealing with the nature or extent of a breach, or the circumstances surrounding the breach. These factors may be relevant in many cases, for example, in respect of those who, by reason of mental health or addiction, may arguably be less capable of compliance, even if a conviction has resulted.
[124] Nor does the section account in any way for the fact that the time a given offender spends in pre-trial custody is often beyond his or her control. Even an offender who wishes to move his/her matter along quickly may be thwarted by the inherent delays in the system. This is particularly so in complicated cases involving multiple accused and/or voluminous disclosure. It also results in a differential impact depending on the location where the offender is tried, as the standard length of time to trial varies widely across jurisdictions.
[125] Given all these factors, it is clear that the law does not fall within a range of reasonable alternatives. By removing the trial judge’s discretion in the sentencing process, making the ability to obtain bail a determination of the length of an offender’s sentence, and punishing offenders based on an aggravating feature that has not been proven beyond a reasonable doubt, Parliament has not minimally impaired the Charter right.
iv. Proportionality between negative impact and beneficial effects
[126] At this final stage of the inquiry, the court must determine whether the benefits of the impugned law outweigh the costs of the rights limitation.
[127] The Crown argues that the benefit of the provision is that it increases access to rehabilitative programs by reducing the odds that offenders who breach their bail conditions will receive time-served sentences.
[128] The Applicant’s submission that the longer sentence imposed for such offenders is a result of a factor not germane to sentencing and beyond the offender’s control is more logically persuasive. As was noted in Safarzadeh-Markhali :
[P]ublic confidence in the criminal justice system would be undermined by an artificial distinction that results in longer jail terms for some offenders. The benefits of the impugned law, which are at best unevenly distributed, cannot justify the limitation on Charter rights (para 122).
[129] Finally, the Crown argues that, if a sentence is found to be overly harsh, the accused has an appropriate individual remedy available through a sentence appeal. However, this position mischaracterizes the issue as one relating to the ultimate sentence imposed rather than the ultimate period of incarceration served. Where the offender is caught by s.524(4) or (8), the trial judge has no discretion to grant enhanced credit, affecting the ultimate period of incarceration served. Where a judge has no discretion, neither does the Court of Appeal.
[130] Additionally, the function of a sentence appeal is not to correct an unconstitutional provision.
[131] In any case, where an unfit sentence arises through operation of law, the appropriate remedy is not to grant a constitutional exemption, but to strike it down (R v. Ferguson, 2008 SCC 6).
[132] In summary, the deleterious effects of the law are not outweighed by the benefits.
CONCLUSION
[133] The operation of s.719(3.1) in conjunction with s.525(4) and (8) violates s.7 of the Charter and is not saved by s.1 of the Charter. To that extent, those portions of the provision are declared to be of no force and effect, pursuant to s.52(1) of the Charter.
[134] Taking into account the decision in Safarzadeh-Markhali, the operative portion of section shall now read:
(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 persn in custody was stated in the record under subsection 515(9.1) or the person was detained un custody under subsection 524(4) or (8).
APPLICATION TO THIS CASE
[135] Finally, I note that the parties take varying positions on whether the Applicant in this case is only entitled to 1:1 credit for the entire 709 days spent in custody after his arrest on the charge of breach of his recognizance, or only for the 348 days spent in custody after his show cause hearing. This issue was directly considered in Chambers, where the Court found that a detention under s.524 does not arise only after a show cause hearing but is in effect once the offender is arrested and his/her recognizance is revoked.
[136] Having found that the provision is unconstitutional, in violation of s.7 of the Charter and not justified under s. 1, it is unnecessary for me to resolve this issue in this case.
[137] In the result, the Applicant is not precluded from obtaining enhanced credit for any time spent in pre-sentence custody.
Wein J
Released: March 19, 2015
COURT FILE NO.: 31/14
DATE: 2015 03 19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
Paul Dinardo
RULING ON CONSTITUTIONALITY OF PORTIONS OF S.719(3.1) OF THE CRIMINAL CODE OF CANADA
Wein, J.
Released: March 19, 2015
[1] The table is premised on a denial of enhanced credit from the time of the applicant’s arrest.
2 Calculations were done by the Applicant but not disputed by the Crown.