ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 2011-7-726
DATE: 20151106
BETWEEN:
HER MAJESTY THE QUEEN
Plaintiff
– and –
J.N.
Defendant
Christine Jenkins, for the Crown
Jonathan Shime and Amanda Ross, for J.N.
HEARD: April 8-10, 2015
r.f. goldstein j.
REASONS FOR JUDGMENT ON CONSTITUTIONAL ISSUE
[1] Where a person is found guilty of an offence and has spent time in pre-sentence custody he or she is ordinarily credited for that time. The Criminal Code contemplates that a judge may grant such credit to an offender when he or she is being sentenced. The Criminal Code limits the amount to 1.5 days of credit for every day spent in custody. This amount is commonly called “enhanced credit”. Pursuant to s. 719(3.1) of the Criminal Code if a person is in custody awaiting trial or sentence because his or her bail has been cancelled then her or she is not entitled to that enhanced credit. The offender is only entitled to credit on the basis of one day for every day of pre-sentence custody. Is that provision constitutional?
[2] In my view it is not. The provision violates the principle of proportionality. The principle of proportionality is now considered to be a principle of fundamental justice. For that reason, the part of s. 719(3.1) of the Criminal Code dealing with enhanced credit for bail violates s. 7 of the Charter. I also find that the provision is not minimally impairing. It is therefore not saved by s. 1.
BACKGROUND
[3] This question came before me in the following way: On March 20, 2014 Mr. J.N. pleaded guilty to assault causing bodily harm. On September 29, 2010 he attacked a woman, Ms. Dean, while he had alcohol and cocaine in his bloodstream. On April 29, 2015 I sentenced Mr. J.N. to six months in custody and three years of probation in light of pre-sentence custody. I also dismissed a Crown application for a Long-Term Supervision Order.
[4] Briefly, the relevant chronology is as follows:
January 13, 2003
Mr. J.N. kills Andy Banh. He is arrested and charged with murder. He subsequently pleads guilty to manslaughter.
January 7, 2005
Justice Watt sentences Mr. J.N. to eight years in the penitentiary in light of two years of pre-sentence custody.
January 21, 2008
Mr. J.N. is released on day parole.
May 19, 2010
Mr. J.N. is released on statutory release.
September 29, 2010
Mr. J.N. attacks Ms. Dean. He is arrested. Although he receives bail, his statutory release is cancelled and he remains in custody.
January 16, 2013
Mr. J.N.’s manslaughter sentence expires. As he has bail on the assault bodily harm charge, he is released.
February 21, 2013
Mr. J.N. is arrested for breaching the conditions of his bail. He remains in custody.
March 20, 2014
Mr. J.N. pleads guilty to assault causing bodily harm. The Crown indicates that it will seek either a dangerous offender order or a long-term supervision order. The Crown eventually decides to seek a long-term supervision order.
April 8-10, 2015
Sentencing and long-term offender hearing. Mr. J.N.’s counsel argues that he should receive enhanced credit for time spent in custody and that the portion of s. 719(3.1) of the Criminal Code preventing enhanced credit is unconstitutional.
April 29, 2015
I sentence Mr. J.N. to 6 months on top of his pre-trial custody and three years probation. I declare that part of s. 719(3.1) of the Criminal Code dealing with enhanced credit to be unconstitutional and indicate that I will provide the reasons at a later time. I grant him enhanced credit at 1.5:1.
[5] The chronology is set out in more detail in that decision. See: R. v. J.N., 2015 ONSC 2735, [2015] O.J. No. 2203, 2015 CarswellOnt 6258. At paragraph 26 of that decision I dealt with the calculation on sentence:
Mr. J.N. was arrested for breaching his bail conditions on February 21, 2013. On November 1, 2013 he was convicted of fail to comply with probation. He was sentenced to 45 days in custody. As a result, from February 21, 2013 to April 17, 2015 Mr. J.N. has spent 2 years and 2 months in custody, of which 2 years and 15 days is attributable to the assault causing bodily harm charge. At the ratio of 1.5:1 he is entitled to just over three years of credit. Since, as I said, the appropriate sentence is 3 1/2 years, I will consider the credit as just slightly less than 1.5:1 and sentence him to a further six months in custody.
[6] As noted, when I dismissed the Crown’s long-term offender application and sentenced Mr. J.N. I indicated that I would issue a companion ruling dealing with the constitutionality of s. 719(3.1) of the Criminal Code. This is that ruling.
ISSUES AND ANALYSIS
[7] There are two issues to be decided: First, does the part of s. 719(3.1) of the Criminal Code dealing with eligibility for enhanced credit violate s. 7 of the Charter of Rights? There are several sub-issues to be determined in order to properly analyze the issued. The second question, if the answer to the first is “yes”, is this: is the provision saved by s. 1 of the Charter?
[8] Subsection 719(3.1) of the Criminal Code states:
(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).
[9] Subsection 515(9.1) is not at issue in this proceeding. That subsection states that where a justice detains an accused person primarily because of a previous conviction, the justice is required to state that reason on the record. This subsection was, however, at issue in R. v. Safarzadeh-Markhali, 2014 ONCA 627, 122 O.R. (3d) 97, about which much will be said in this judgment.
[10] Subsections 524(4) and (8) are subsections dealing with the cancellation of bail. They provide that a judge or justice may cancel an accused person’s bail for one of two reasons:
• The accused has contravened or was about to contravene his or her bail; or
• There are reasonable grounds to believe that the accused has committed an indictable offence while on bail.
[11] When s. 719(3.1) is read with s. 524(4) and (8) it has the effect of denying enhanced credit on sentencing to an offender where that offender’s bail has been cancelled.
(continued exactly as in the source judgment)
[44] The part of s. 719(3.1) denying enhanced credit to an offender where his or her bail has been cancelled is of no force and effect.
R.F. Goldstein J.
Released: November 6, 2015
COURT FILE NO.: 2011-7-726
DATE: 20151106
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Plaintiff
– and –
J.N.
Defendant
REASONS FOR JUDGMENT ON CONSTITUTIONAL ISSUE
R.F. Goldstein J.