R. v. Meads, 2016 ONSC 7156

CITATION: R. v. Meads, 2016 ONSC 7156 BARRIE COURT FILE NO.: CR-16-062 DATE: 2016-11-18

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

JUSTIN MEADS Applicant

COUNSEL: Lynn Shirreffs, for the Respondent Erec Rolfe, for the Applicant

HEARD: October 27, 2016

DECISION ON CONSTITUTIONAL CHALLENGE

FUERST, RSJ.

Introduction

[1] Justin Meads and two other men committed a “home invasion” robbery in December 2014. Mr. Meads pleaded guilty in September 2016 to robbery, possession of a firearm without a licence, and pointing a firearm, particularized as a shotgun.

[2] Preliminary to his sentencing hearing, Mr. Meads applies to have the portion of s. 719(3.1) of the Criminal Code (“the Code”) that would restrict his credit for pre-sentence custody to one-for-one declared of no force and effect. He contends that it infringes s. 7 of the Canadian Charter of Rights and Freedoms (“the Charter”).

[3] The Attorney General of Canada was properly served with notice of this Application, but relies on the Attorney General of Ontario to respond.

Background

[4] Mr. Meads was arrested and charged with the offences arising from the home invasion, on February 10, 2015. He sought bail. He was granted release on a recognizance in the amount of $100,000 with a surety and with conditions, on May 4, 2015.

[5] One of the release conditions required that Mr. Meads remain in his residence at all times and not leave the boundaries of the residential property, except for court appearances or meeting with his lawyer or to comply with other release conditions, all in the company of his surety, or for medical emergencies. It also required that he wear a GPS ankle bracelet, monitored by Recovery Science Corporation, at all times.

[6] On July 28, 2015, Mr. Meads cut off his ankle bracelet, and absconded. He was arrested on August 4, 2015, pursuant to s. 524 of the Code, and charged with two counts of breach of recognizance. He was held in custody.

[7] On December 8, 2015, the Crown sought and obtained cancellation of Mr. Meads’ bail on the home invasion charges, under s. 524(8). Mr. Meads did not re-apply for release.

[8] On July 14, 2016, Mr. Meads pleaded guilty to breach of recognizance. He was sentenced to 30 days in jail.

The Legislation in Issue

[9] Under s. 719(3) of the Code, a sentencing judge may take into account any time spent in custody by the offender as a result of the offence, but the credit for that time is limited to one day for each day in custody. Section 719(3.1) permits a sentencing judge to enhance that credit, if the circumstances justify it, to a maximum of one and a half days for every day of pre-sentence custody.

[10] Section 719(3.1) specifies, however, that enhanced credit is not available in two circumstances: if the reason the offender was denied bail was endorsed in writing in the record to be primarily because of a previous conviction, or if the offender was detained in custody under ss. 524(4) or (8).

[11] Sections 524(4) and (8) apply, respectively, to accused persons released on bail for s. 469 offences, and accused persons released on bail for all other offences. They provide that where a justice finds that an accused has contravened or is about to contravene his release, or that there are reasonable grounds to believe the accused has committed an indictable offence while on release, the release shall be cancelled and the accused ordered detained in custody, unless he shows cause for further release.

[12] Although the burden and standard of proof applicable to the judge’s determination is not specified in the Code provisions, the jurisprudence holds that the burden is on the Crown and the standard is one of a balance of probabilities: see, for example, R. v. Ibrahim, 2015 MBCA 62, at para. 31. If the justice makes one of the findings referred to in ss. 524(4) or (8), he must cancel the release and order the accused’s detention on the original charge. The justice has no discretion to do otherwise. Unless the accused seeks to show cause why his detention is not justified and succeeds in doing so, he continues to be detained on the original charge: see Gary T. Trotter, The Law of Bail in Canada (3d ed., 2010), at pp. 11-11 and 11-12; and R. v. Akintunde, 2015 ONCA 597.

[13] The Supreme Court of Canada (“the Court”) addressed the constitutionality of the first of the two prongs of s. 719(3.1), where enhanced credit is unavailable because of denial of bail on the basis of a previous conviction, in R. v. Safarzadeh-Markhali, 2016 SCC 14. I will refer to this first prong of s. 719(3.1) as the criminal record exclusion. The Court declared the first prong of s. 719(3.1) to be of no force and effect, because it violated s. 7 of the Charter and could not be saved under s. 1.

[14] The Court did not address the constitutionality of the second prong of s. 719(3.1), where enhanced credit is unavailable because an offender’s bail was cancelled, either because he was alleged to have breached his release or because there were reasonable grounds to believe he committed an indictable offence while on release, and he was then detained without fresh release. I will refer to this second prong of s. 719(3.1) as the bail misconduct exclusion.

[15] The constitutionality of the bail misconduct exclusion of s. 719(3.1) is the issue for decision in this case.

The Positions of the Parties

[16] The Applicant submits that the bail misconduct exclusion of s. 719(3.1) violates s. 7 on three bases. First, it is overbroad. The Applicant points out that after examining the remarks of the then Minister of Justice when he introduced and explained the legislation, the Supreme Court of Canada concluded in Safarzadeh-Markhali that the legislative purpose of the criminal record exclusion was to enhance public safety and security by increasing violent and chronic offenders’ access to rehabilitation programs. The Applicant contends that as the Minister of Justice addressed both branches of s. 719(3.1) in tandem, the legislative purpose the Court identified applies equally to the bail misconduct exclusion. The bail misconduct exclusion is overbroad because it catches individuals who are neither violent nor chronic offenders whose increased access to rehabilitative programming would enhance public safety and security. Second, its effects are grossly disproportionate to its legislative purpose. Third, it is arbitrary, because it functions to punish an offender for delays in the trial process that are beyond his control. It cannot be saved under s. 1 of the Charter, and must be declared of no force and effect.

[17] The Respondent submits that the bail misconduct exclusion of s. 719(3.1) does not violate s. 7. While it engages an offender’s liberty interest, it does so in a manner that accords with the principles of fundamental justice. It is not overbroad. The Respondent submits that the bail misconduct exclusion has a main thrust that is different from the criminal record exclusion, namely to enhance public safety and reduce the number of accused persons in pre-sentence custody by deterring misconduct on release. Its effects on liberty are rationally connected to those purposes. But even if the purpose of the bail misconduct exclusion is the same as for the criminal record exclusion, it is not overbroad. Bail violations inherently pose a risk to society and public confidence in the justice system. Arguably, every intentional breach of a court order is conduct that would benefit from rehabilitative programming. And, the bail misconduct exclusion is engaged only after a court hearing with a finding that there is sufficient evidence of misconduct on release and that the individual is no longer a candidate for release, a finding that is reviewable. The Respondent further contends that the bail misconduct exclusion is not grossly disproportionate or arbitrary. The Respondent does, however, concede that if the bail misconduct exclusion infringes s. 7, it cannot be saved under s. 1 of the Charter.

The Analytical Framework

[18] In Safarzadeh-Markhali, the Court said, at para. 20, that “[i]t is clear that s. 719(3.1) limits liberty. Its effect is to require offenders who come within its ambit to serve more time than they would have otherwise.” Although the Court said this in the context of a constitutional challenge to the first prong of s. 719(3.1), it did not expressly restrict the comment to the criminal record exclusion. In R. v. Kovich, 2016 MBCA 19, the Manitoba Court of Appeal dealt with constitutional challenges to both prongs of s. 719(3.1). It reiterated that imprisonment, or the possibility of imprisonment, engages liberty interests protected by s. 7.

[19] The Respondent does not contest that the bail misconduct exclusion of s. 719(3.1) engages the s. 7 liberty interest. I find that it does so.

[20] The issue is whether this deprivation of liberty conforms to the principles of fundamental justice. I turn first to the submission that the bail misconduct branch of s. 719(3.1) is overbroad.

[21] In Safarzadeh-Markhali, the Court adopted its articulation of the principle of overbreadth in Canada (Attorney General) v. Bedford, 2013 SCC 26, at paras. 112-13:

Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts... .

Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others. Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law's purpose. For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual. Enforcement practicality may be a justification for an overbroad law, to be analyzed under s. 1 of the Charter.

[22] Whether a law is overbroad within the meaning of s. 7 “turns on the relationship between the law’s purpose and its effect”: Safarzadeh-Markhali, at para. 24.

[23] Accordingly, the first step in an overbreadth analysis is to determine the law’s purpose. In Safarzadeh-Markhali the Court reiterated four propositions that guide the characterization of Parliament’s purpose, which it identified in R. v. Moriarity, 2015 SCC 55. They are:

1. The law’s purpose is distinct from the means used to achieve that purpose.
2. The law’s purpose should be characterized at the appropriate level of generality, which lies between the statement of an animating social value, which is too general, and a narrow articulation amounting to a virtual repetition of the challenged provision divorced from its context.
3. The statement of purpose should be both precise and succinct.
4. The appropriateness of the legislative purpose is not a consideration. The court must assume that the legislative objective is appropriate and lawful.

[24] Against that backdrop, the Court went on to specify three sources to which jurists look to determine a law’s purpose for a s. 7 overbreadth analysis. They are:

1. Statements of purpose in the legislation;
2. The text, context and scheme of the legislation; and,
3. Extrinsic evidence such as legislative history and evolution.

[25] The Court noted that the Truth in Sentencing Act, S.C. 2009, c. 29, which enacted s. 719(3.1), does not contain explicit statements of legislative purpose. In particular, it contains no explicit statement of the specific purpose of refusing enhanced credit to offenders denied bail primarily on the basis of a prior conviction.

[26] Similarly, I find that the legislation contains no explicit statement of the specific purpose of denying enhanced credit to offenders who are detained following cancellation of their bail under s. 524(8).

[27] Turning to the text, context and scheme of the legislation, the Court considered as context the broad over-arching purpose for the one and a half-for-one limit on enhanced credit for pre-sentence custody that it identified in R. v. Summers, 2014 SCC 26. That broad over-arching purpose is enhancing confidence in the justice system. The Court described this as more of an animating social value than a statement of purpose. I find that this contextual observation is equally applicable to consideration of the bail misconduct exclusion.

[28] I next examine the text of the legislation. Upon a finding that the accused has contravened, or even “been about to contravene” his release, no matter how relatively trivial or serious the contravention, the justice is required to cancel the release, and must make a detention order that remains in effect unless the accused shows cause why his detention is not justified. A finding of any kind of breach of release terms, including a breach that has not yet happened, could theoretically lead to a detention order. Similarly, upon a finding of reasonable grounds to believe that the accused has committed an indictable offence, no matter its nature, the justice is required to cancel the release, and must make a detention order that remains in effect unless the accused shows cause why his detention is not justified. A finding of reasonable grounds to believe that the accused committed any indictable offence, including, at this stage, a hybrid offence such as theft under, could theoretically lead to a detention order. A conviction for breach of release or an indictable offence is not required. Unproven allegations of misconduct could theoretically result in a detention order. The scope of the text of the provision does not give much guidance in determining Parliament’s purpose, beyond indicating that it intended to target accused persons who engage in bail misconduct.

[29] In Safarzadeh-Markhali, the Court went on to consider statements of purpose made by the Minister of Justice to Parliament and the House of Commons Standing Committee on Justice and Human Rights when he presented the Truth in Sentencing Act. He spoke about s. 719(3.1) and the aim of denial of enhanced credit, without drawing a distinction between the provision’s two branches. He consistently referred in tandem to offenders who have been denied bail because of “their criminal record” or because they “violated their bail conditions”. See, for example, House of Commons Debates, Vol. 144, No. 41, 2nd Sess., 40th Parl., April 20, 2009, at p. 2418. The Court’s comments at paragraphs 37 to 44 about the Minister’s statements of purpose are equally as applicable to the bail misconduct exclusion in s. 719(3.1) as they are to the criminal record exclusion.

[30] The text, context and scheme of the legislation, coupled with the Minister’s statements of purpose, lead to the same conclusions about the bail misconduct exclusion in s. 719(3.1) as they did in Safarzadeh-Markhali with respect to the criminal record exclusion. Specifically:

1. The animating social value behind the denial of enhanced credit for pre-sentence custody in s. 719(3.1) is enhancing public confidence in the justice system.
2. The legislative purpose of the denial of enhanced credit for pre-sentence custody to offenders detained because of bail misconduct is to enhance public safety and security by increasing violent and chronic offenders’ access to rehabilitation programs. Other legislative purposes referred to by the Minister of Justice, such as providing adequate punishment, are peripheral.
3. The means for achieving that legislative purpose is the challenged provision itself, the denial of enhanced credit for pre-sentence custody to persons detained because of bail misconduct.
4. The effect of the provision is to impose longer periods of custody on all persons who are detained because of bail misconduct.

Is the Bail Misconduct Exclusion in s. 719(3.1) Overbroad?

[31] The principle against overbreadth means that the law must not go further than reasonably necessary to achieve its legislative goals. On the issue of whether the bail misconduct exclusion in s. 719(3.1) infringes s. 7 because it is overbroad, I have considered the jurisprudence referenced by the parties. To the extent there are any appellate court decisions dealing with the second branch of s. 719(3.1), they are of limited assistance, because they dealt with issues other than constitutionality, and/or they pre-dated Safarzadeh-Markhali in the Supreme Court of Canada and the overbreadth analysis set out there, and/or they turned on a proportionality analysis that the Court rejected. See, for example, R. v. Chambers, 2014 YKCA 13; and Akintunde.

[32] I conclude that the denial of enhanced credit for pre-sentence custody to offenders who are detained because of misconduct while on release is overbroad.

[33] Like the first prong of s. 719(3.1), the bail misconduct exclusion catches individuals in ways that have nothing to do with enhancing public safety and security. Its ambit captures all persons who are alleged to have breached their release or committed indictable offences while on bail, had their bail cancelled, and been unable to obtain fresh release, even though the misconduct does not render the person a real threat to public safety or security. For example, the person who fails to sign in at a police station because of transportation problems, or who uses a cell phone for a non-criminal purpose despite a condition prohibiting any use whatsoever, or who fails to attend at court because of mental health issues, and who is then detained under s. 524 upon cancellation of his release and is unable to obtain further release, is automatically denied enhanced pre-sentence custody credit under s. 719(3.1). So too is the person who is detained and unable to obtain fresh release after being charged with committing any indictable offence while on bail, regardless of the nature of that indictable offence, and even if he is not a “chronic” offender. These individuals will automatically be denied more than one-for-one credit for pre-sentence custody, even though they have not committed violent offences or presented a threat to public safety or security. So too will individuals charged with committing indictable offences that ultimately are not proved, since the making of a detention order and the consequent loss of enhanced credit does not require a conviction for the alleged offence. No actual “violation” of release is necessary to engage s. 719(3.1). As expressed in Kovich, at para. 74, the person is being punished for charges, not necessarily for convictions.

[34] The Respondent submits that it is relevant that the bail misconduct exclusion operates only after an offender has had a chance to show cause why he should not be detained. This does not, however, protect against overbreadth. In Summers, the Court recognized, at paras. 66 and 67, that an accused who is able to deposit money, or who has family or friends to act as sureties, is in a better position to obtain bail than is the accused who is without financial means or a network of family and friends. This is true at an initial bail hearing, but even more so at a s. 524 release hearing, where the onus is reversed and rests on the accused to show cause. Economically and/or socially disadvantaged members of society are at risk of being detained and denied enhanced credit under s. 715(3.1), even though they are not violent or “chronic” offenders. In Kovich, the Manitoba Court of Appeal commented, at para. 106, that the bail misconduct exclusion does not target wrongful conduct or violent offenders, but rather targets the inability to get bail.

[35] In addition, it is not clear on the wording of s. 719(3.1) that the provision ceases to apply if the offender who is charged with committing an indictable offence while on bail and detained under s. 524 as a result, is acquitted of that charge before he is sentenced for his original offence. Nor is there an obvious remedy for the denial of enhanced credit to the offender who is acquitted of the bail misconduct that resulted in his detention, but not until after he has been sentenced for his original offence. This too renders the bail misconduct prong of the provision overbroad.

Section 1 of the Charter

[36] The Crown does not seek to rely on s. 1 of the Charter. Crown counsel accepts that the Court’s conclusions in Safarzadeh-Markhali about the minimal impairment and proportionality branches of the Oakes test apply to a finding that the bail misconduct exclusion in s. 719(3.1) infringes s. 7 on the basis of overbreadth.

[37] In light of my conclusion on the issue of overbreadth, it is unnecessary for me to decide whether the statutory provision offends s. 7 on the basis of gross disproportionality, or because it is arbitrary.

Conclusion

[38] The bail misconduct prong of s. 719(3.1) violates s. 7 of the Charter. The infringement is not justified under s. 1. That branch of s. 719(3.1) is declared of no force and effect under s. 52 of the Constitution Act, 1982.

FUERST, RSJ.

Released: November 18, 2016