R. v Campbell, 2017 ONSC 26

COURT FILE NO.: CR-16-1/592 DATE: 2017-01-13 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Michael Campbell Defendant/Applicant

Counsel: Mareike Newhouse, for the Crown/Respondent Colin Sheppard, for the Defendant/Applicant

Heard: November 14, 2016

Before: McWatt, J.

JUDGMENT: CONSTITUTIONALITY OF SECTION 719(3.1) OF THE CRIMINAL CODE AND SENTENCING

INTRODUCTION

[1] Michael Campbell is before the Court for his sentencing. He challenges the constitutionality of the portion of s.719(3.1) of the Criminal Code limiting pre-sentence custody to a rate of 1:1 (one day credit for one day served) when an offender is denied bail pursuant to section 524(4) or (8) of the Code (misconduct exception). He maintains that the legislation violates s.7 of the Charter and should be declared of no force and effect pursuant to s. 52 of the Constitution Act, 1982. The applicant also maintains that the section cannot be saved by s. 1.

[2] On April 15, 2016, in the case of R. v. Safarzadeh-Markhali, 2016 SCC 14, 2016 S.C.C. 14, the Supreme Court of Canada ruled that the other portion of s.719 (3.1), limiting pre-sentence custody to a rate of 1:1 for offenders denied bail primarily based on previous convictions (previous conviction exception), is unconstitutional. That section was found to violate the principles of fundamental justice due to overbreadth.

[3] The applicant submits the same principles set out in Safarzadeh-Markhali apply to the misconduct exception of s.719 (3.1). The section “straightjackets” the credit to be granted an offender for pre-sentence custody based on alleged misconduct on bail and is overbroad as a result.

THE FACTS

The Offences

[4] The victim, Kelsey Snow, had been working as a prostitute since the age of 15 years. She was a regular user of alcohol, marijuana, cocaine and MDMA. She first met Michael Campbell in March of 2014 when she was 16 years old, but held herself out as 20 years old throughout their relationship. Mr. Campbell invited Ms. Snow to work with him as a prostitute in order to make more money.

[5] On March 25, 2014, the defendant drove to Barrie with two friends, including his co-accused, Timothy Hewton, to pick up the victim who was prostituting in a local hotel. Ms. Snow left with the defendant and his friends, one of whom passed what she believed was a black firearm to the other male in the vehicle during the trip. She did not see Mr. Campbell with the firearm.

[6] In Toronto, Ms. Snow spent the night at Mr. Campbell’s residence. The following day, Mr. Campbell and Mr. Hewton drove the victim to three locations in Toronto where she performed sexual acts on clients for money. She posted a picture she took of herself and answered all communications received from posting her advertisement. She set her own prices and performed the sexual acts she chose to perform. She provided all of the money she received to Mr. Campbell at his request.

[7] On March 27, 2014, the victim was taken to a hotel in Mississauga by the defendant and Mr. Hewton. Mr. Campbell rented a room for her. She performed sexual acts with one customer and the defendant collected the proceeds. The victim wanted to leave as she felt she was not being taken care of sufficiently as she lacked new clothes, drugs and beauty products. Mr. Campbell, on the other hand, was dissatisfied with the volume of customers the victim was servicing.

[8] Mr. Campbell checked the victim’s phone and believed she was messaging with a friend in order to set him up to be robbed. He kept the phone and took the victim back to his residence. There, he put her in his bedroom, told her to face the wall and threatened to sell her to criminals and throw her off the balcony. The victim feared she would not be allowed to leave the apartment.

[9] Mr. Campbell told the victim that she owed him money for what he had spent on her and that she had to work off the debt before he would let her go.

[10] Ms. Snow overheard the defendant tell a woman called Serenity (Serenity Timberey-Welcome, another co-accused), that she would have to watch over her in order for the debt to be paid.

[11] The next day, after sleeping on Mr. Campbell’s floor, the defendant took the victim to meet Serenity. The three then went to a hotel in Toronto where Ms. Snow serviced two men while Serenity remained in the washroom. The victim gave the proceeds to Serenity.

[12] Ms. Snow asked her first client to call police on her behalf. By the time they arrived, the victim had just finished servicing her second client. She was naked. Serenity was in the washroom with Ms. Snow’s phone.

[13] The defendant and victim’s relationship spanned approximately two and one half days from 7:30am on Wednesday, March 26 to 8pm on Friday, March 28.

[14] As a result of further investigation, the police located a semi-automatic machine pistol with its model and serial numbers defaced, in a storage locker rented by the defendant. The firearm was not loaded and the gun had no magazine. However, with it, in a cardboard box, were twenty-nine 9mm rounds of ammunition.

The Pretrial Custody

[15] On September 26, 2016, the applicant pleaded guilty before me to exercising control over Kelsey Snow, contrary to s. 212(1)(h) and possessing an unloaded prohibited firearm, together with readily accessible ammunition, contrary to section 95(1) of the Criminal Code.

[16] Mr. Campbell was first arrested on April 10, 2014. He was granted bail on May 2, 2014 on condition that he remain on house arrest. On September 1, 2015, he was re-arrested on charges of failing to comply (FTC) with the terms of his release and assaulting a peace officer.

[17] On April 26, 2016, Justice S. Nakatsuru convicted the applicant of the two charges and sentenced him to 45 days in jail. His Honour took 30 days of pre-sentence custody into account at a rate of 1.5:1 in imposing the term of imprisonment.

[18] On May 3, 2016, the Crown applied under section 524(8) of the Code to revoke Mr. Campbell’s interim release and, on May 4, 2016, Justice Nakatsuru granted the Crown’s application and imposed a detention order.

[19] Mr. Campbell has been in custody since September 1, 2015. From that date to today, he has spent 501 days in custody less the 30 days used on his FTC and assault peace officer charges. Therefore, he has 471 days of pre-trial custody, on a 1:1 basis, to apply to his sentence on the charges before me. If he were given 1:5 days of custody for every day served to this point, he would have 707 days of pre-trial custody to count against any sentence I impose - a difference of 236 days.

[20] The applicant also asks for another 180 days (six months) custodial credit because of the conditions of his detention. There have been over 180 lockdown days while he has been in custody. The applicant asks also for the extra credit to apply to his abiding by the conditions of his house arrest release from May 2, 2014 to September 1, 2015.

[21] In all, the applicant asks for 887 days of custodial credit, which amounts to approximately 23 months and 8 days at a rate of 1.5:1.

POSITIONS OF THE PARTIES

[22] The applicant submits that the impugned portion of s. 719(3.1) limits liberty. The Crown agrees and concedes that the applicant’s s. 7 Charter rights have been engaged. The Crown also agrees that if the section is ruled to be unconstitutional, s. 1 of the Charter cannot save it.

[23] The Applicant challenges the constitutional validity of the words underlined below in section 719(3.1) of the Criminal Code:

(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).

[24] Section 7 of the Canadian Charter of Rights and Freedoms reads as follows:

7. 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.

[25] Mr. Campbell maintains that the impugned portion of s. 719(3.1) limits liberty in that offenders caught within the provision’s net are required to serve more time in prison than they otherwise would. The effect of the misconduct exception is that, if an offender is detained in custody under s.524 (4) or (8), they are not entitled to the enhanced rate of one and one half days for every day spent in pre-sentence custody. The issue under s.7 is whether the deprivation of liberty accords with the principles of fundamental justice.

[26] The applicant submits that the same analysis of the Supreme Court of Canada in Safarzadeh-Markhali applies in this case. Section 524(4) and (8) are broadly worded. The sections apply to all denied bail under s.524 “without specifying or even broadly identifying” the type of misconduct envisioned for denial under s.719 (3.1).

[27] He asks for a term of imprisonment for the offences of 3 ½ to 4 years less the pre-trial custody, counted at 1.5:1, plus 2 years’ probation.

[28] The Crown is opposed to the applicant receiving any enhanced credit for pre-sentence detention, except between April 10, 2014 and May 2, 2014, when he was first arrested to the time of his breach of his bail. Otherwise, pursuant to s. 719(3.1) or for conditions in the detention centre and his abiding by the terms of his house arrest, enhanced credit should not be applied on the grounds he was detained because of his own wrongful behavior.

[29] The Crown submits that although both the Ontario Court of Appeal and the Supreme Court found the criminal record exclusion is unconstitutional, neither Court has considered the misconduct exclusion. The question before this Court remains open.

[30] The Crown asks for a penitentiary sentence in the range of 5 to 8 years to be imposed in this case.

THE CONSTITUTIONAL ISSUE: ANALYSIS

[31] Section 719(3.1) of the Criminal Code does offend s.7 of the Charter of Rights because it is overbroad. Here are the reasons:

Section 719(3.1) of the Code (misconduct exception)

[32] The misconduct exception operates when an offender is detained in custody under subsection 524(4) or (8). Section 524 provides a mechanism through which an accused released on a summons, appearance notice, promise to appear, undertaking or recognizance may be brought back before the court on reasonable grounds to believe that the accused has committed certain forms of misconduct on release. The court can cancel the accused’s previous release on finding that the accused has contravened or had been about to contravene the terms of his release or that there are reasonable grounds to believe the accused has committed an indictable offence on release. The court may then either detain or release the accused following a show cause hearing where the accused bears the burden. Subsection 524(4) provides jurisdiction to review and, when necessary, revoke release decisions rendered by the Superior Court with respect to serious offences identified in s. 469 of the Criminal Code. Subsection 524(8) deals with all other offences.

The Case Law

[33] The constitutionality of the s. 719(3.1) misconduct exception has been dealt with in Ontario and in other provinces before the Supreme Court released its decision in Safarzadeh-Markhali in April of 2016.

[34] The Ontario Court of Appeal in its dealings with Safarzadeh-Markhali, 2014 ONCA 627, had, on September 10, 2014, declared the section unconstitutional in relation to the prior conviction exception because the section significantly diminished judicial discretion in crafting an appropriate sentence for the offender after already essentially punishing him prior to his conviction due to the fact of his previous record of offences. The Court found that the legislation was an overbroad and disproportionate response to its objectives – public security for crimes, generally, and provision of access to institutional rehabilitative programming.

[35] On October 7, 2014, the Yukon Territory Court of Appeal in R. v. Chambers, 2014 YKCA 13, dealt with the issue on the basis of a challenge under ss. 7 and 15 of the Charter of Rights. The Court found that the legislation was not arbitrary because Parliament had not only chosen to cap enhanced credit at 1.5:1, if the circumstances justify it, but also to target “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” (para. 96). The Court concluded that this objective could not be an improper one as it was “in the exercise of Parliament’s criminal law power” (para. 97). The section was also not overbroad because the objective or purpose of the legislation to deny the noted subset of offenders credit greater than 1:1 created no disconnect between the impugned provision and its effects (para. 104). Leave to appeal to the Supreme Court of Canada was refused, [2014] S.C.C.A. No. 534.

[36] This case represents the Crown’s position for Mr. Campbell.

[37] The Crown also relies on the November 25, 2015 case of R. v. Hussain 2015 ONSC 7115, [2015] O.J. No. 6159, in which Ontario Superior Court Justice, M. L. Edwards, found s. 719(3.1) was not unconstitutional. In relying on the Yukon Territory’s Court of Appeal in Chambers, His Honour concluded that “Parliament intended to target persons who have breached their bail conditions and/or committed an indictable offence while on bail, thereby denying this specific “target population” the benefit of being considered for enhanced credit for pretrial detention.” (para. 72).

[38] Justice Edwards also relied on the Ontario Court of Appeal decision of R. v. Akintunde 2015 ONCA 597. The case did not involve a constitutional challenge of the exceptions in s. 719(3.1). As a result, it did not deal with the effect the section had on offenders in great detail. Akintunde dealt with the issue of whether s. 719(3.1) applied to an offender who had no bail hearing because he consented to his detention. The Court concluded that the appellant was detained pursuant to s. 524(8) in those circumstances, and, therefore, could not be given enhanced credit for his pretrial custody more than on a 1:1 basis. In reaching this conclusion, the Court relied on the Chambers decision and found that the decision properly interpreted Parliament’s intention regarding s. 719(3.1), which was a “legitimate objective of keeping these individuals in custody for longer periods” (para. 44 and 50).

[39] Akintunde also set out differences between the two exclusions in s.719 (3.1) (para 40-45). The Crown maintains that for constitutional purposes, they are, therefore, different.

[40] In R. v. Hussain, the sentencing judge refused to rely on the February 27, 2015 decision of Wein, J. in R. v. Dinardo [2015] O.J. No. 1387 because Her Honour did not distinguish between offenders captured by the criminal record exception or the misconduct exception. In Dinardo, the sentencing judge found that the misconduct exception violated the principle of proportionality as well as the related concept of parity and thus s. 7 of the Charter (pursuant to the C. A. decision in Safarzadeh-Markhali).

[41] In Dinardo, as opposed to Chambers, Hussain and Akintunde, the Court’s focus was on the effect of the legislation. Chambers and Hussain found the objectives legitimate and did not consider its effect as dictated as part of the s.7 Charter analysis. The following cases considered the effect of s.719 (3.1) and found it to be overbroad as a result.

[42] In R. v. Norman 2015 ONSC 6849, Justice Goldstein found that the misconduct exception in s. 719(3.1) violated s. 7 of the Charter. He also followed the Ontario Court of Appeal’s decision in Safarzadeh-Markhali, which had defined the principle of proportionality as a principle of fundamental justice in the s. 7 analysis.

[43] On February 9, 2016, the Manitoba Court of Appeal released R. v. Kovich and Bittern 2016 MBCA 19. The Court dealt with the constitutionality of both exceptions in s. 719(3.1) (criminal record in Kovich and misconduct in Bittern) and found the section to have unjustifiably infringed s. 7 of the Charter of Rights by interfering with the principle of proportionality in the sentencing process (which the Court agreed was a principle of fundamental justice). The Court also found that the section went too far in that it overreached in its effect. The exceptions target those who commit crimes while on bail or violent offenders, but, in reality, they capture offenders who are unable to get bail because of socioeconomic reasons and not because of their conduct. At paragraph 9, the Court said:

……I have considered both exceptions together because, for reasons given below, I see no distinction between them for the purposes of the constitutional analysis. 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.

[44] The Court went on to say, at paragraphs 160 to 164:

[160] Parliament passed legislation limiting the award of enhanced credit for PSC generally, and prohibiting it completely for offenders who were denied bail pursuant to sections 515(9.1) or 524 of the Code. Parliament’s stated objective for these prohibitions was to enhance public safety, to provide these offenders with longer-term programming while in custody and to prevent some offenders from “gaming the system”. While any decision relating to these exemptions is made by the bail judge, the obvious consequence of the bail decision is to limit the amount of PSC credit that could be granted by the sentencing judge. Parliament is entitled to limit the discretion of the sentencing judge except where such limitation constitutes a violation of the Charter.

[161] Different courts across the country have reviewed the constitutionality of these two exemptions. The result varies depending on whether one views the exemptions as relating to a punishment (the Chambers view) or to the process of sentencing itself (the Safarzadeh-Markhali view). The difference between the two views is important because the Supreme Court of Canada held in Malmo–Levine that when the true nature of a Charter challenge relates to a punishment, the validity of the impugned legislation is more appropriately measured against the standard of gross disproportionality as it has evolved under section 12 of the Charter. I agree that if considered as a punishment, the sentences in this case cannot be considered to be grossly disproportionate. However, I have been persuaded that the true nature of this challenge relates to the sentencing process, as opposed to the punishment.

[162] Viewed in that manner, I have concluded that the two exemptions constitute an unjustifiable infringement of section 7 of the Charter for two reasons. First, the exemptions subject identically-placed offenders to different periods of imprisonment (depending on whether they are able to obtain bail) for reasons that are not relevant to the determination of a proportionate sentence, thereby interfering with the principle of proportionality in the sentencing process, which is a principle of fundamental justice. Second, the exemptions go too far in that they overreach in their effect; they target those who commit crimes while out on bail or violent offenders but in reality, they capture offenders who are unable to get bail because of socio-economic reasons, not because of their conduct.

[163] As a result, leave is granted, but the appeals are dismissed. The words “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)” in section 719(3.1) of the Code violate section 7 of the Charter and are not saved by section 1. Those words are declared to be of no force or effect pursuant to section 52(1) of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, section 35(2).

[164] The operative portion of the section shall now read:

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.

[45] No application for leave to appeal the Bittern decision was filed with the Supreme Court of Canada.

R. v. Safarzadeh-Markhali (April 15, 2016)

[46] In 2009, Parliament amended the Criminal Code and removed the sentencing judge’s discretion to give enhanced credit to offenders for pre-trial custody if they were denied bail primarily on the basis of their criminal records.

[47] The sentencing judge and the Ontario Court of Appeal ruled that the removal of discretion to award enhanced credit in s. 719(3.1) was unconstitutional as inconsistent with s. 7 of the Charter. The Ontario Court of Appeal ruled that the restriction violated s. 7 because it deprived affected persons of liberty in a manner inconsistent with the sentencing principle of proportionality, which it found, as I have previously set out, was a principle of fundamental justice.

[48] The Supreme Court agreed with the result, but disagreed with the Court of Appeal that proportionality in sentencing was a principle of fundamental justice under s. 7 of the Charter.

[49] The Chief Justice summarized the Court’s decision at page 4 of the decision as follows:

1. In calculating the sentence of an offender, “a credit of one day for every day of pre-sentence custody will almost never put the person on equal footing with offenders released on bail, because the time spent in pre-sentence custody does not count for purposes of parole eligibility, earned remission and statutory release;… A one-for-one credit, in other words, results in longer incarceration for offenders detained in pre-sentence custody than for offenders released on bail. On account of this discrepancy and the reality that pre-sentence custody is generally more onerous than post-sentence custody, sentencing courts have historically given “enhanced” credit for time spent in pre-sentence custody.

2. Section 719(3.1) limits liberty. Its effect is to require offenders who come within its ambit to serve more time in prison than they would have otherwise;

3. The animating social value behind the denial of enhanced credit is enhancing public confidence in the justice system;

4. The legislative purpose of the total denial of the enhanced credit for pre-sentence custody to offenders who are denied bail because of a prior conviction is to enhance public safety and security by increasing violent and chronic offenders’ access to rehabilitation programs;

5. The means for achieving the legislative purpose is the challenged provision itself and the effect of the provision is to impose longer periods of custody on all persons who receive an endorsement under s. 515(9.1);

6. The provision captures people it was not intended to capture: offenders who do not pose a threat to public safety or security. Section 515(9.1) does not specify or even broadly identify the offences that warrant an endorsement and limited availability of judicial review means that persons wrongly tagged with an endorsement will be without recourse to have the error remedied;

7. The s. 7 Charter infringement cannot be justified under s. 1 as while the challenged provision is rationally connected to its purpose of enhancing public safety and security, it is neither minimally impairing nor proportionate. Alternative and more reasonable means of achieving its purposes were open to Parliament. The benefit to public safety by increasing access to rehabilitation programs is not trivial but the law’s overbreadth means that offenders who have neither committed violent offences nor present a risk to public safety will be unnecessarily deprived of liberty;

8. The Ontario Court of Appeal erred in declaring proportionality in the sentencing process to be a principle of fundamental justice under s. 7 of the Charter. The principles and purposes for determining a fit sentence, including the fundamental principle of proportionality in s. 718.1 of the Criminal Code, did not have constitutional status. The standard imposed by s. 7 with respect to sentencing was the same as it was under s. 12 of the Charter: gross disproportionality.

After the S.C.C. Safarzadeh-Markhali

[50] In R. v. Cote 2016 SKQB 249, decided after Safarzadeh-Markhali, on July 28, 2016, Allbright J. considered the cases noted above and the constitutionality of the misconduct exception. He found that the conclusions reached by the Chief Justice were applicable to the misconduct exception as both exceptions – criminal record and misconduct – “allow the outcome of a bail decision to dictate the length of the custodial portion of an offender’s sentence” as held in Kovich (para. 53).

[51] As set out in Cote, the combined rationale of the Supreme Court in Safarzadeh-Markhali and that of the Manitoba Court of Appeal in Kovich\Bittern leads to a similar conclusion – that the section does not recognize the variety of factors which may come into play and are factors not tied to conduct or misconduct on the part of an accused individual ..“but rather to luck of socio-economic status” (para. 54).

The Impugned Portion of s.719 (3.1) is Overbroad

[52] An overbreadth analysis under s.7 turns on the relationship between the law’s purpose and its effect. To determine a law’s purpose for s.7 overbreadth analysis, the courts must look to: (1) statements of purpose in the legislation, if any; (2) the text, context and scheme of the legislation; and (3) extrinsic evidence such as legislative history and evolution (Safarzadeh-Markhali, para 24-31).

[53] The Truth in Sentencing Act, S.C. 2009 c. 29 (TISA) does not contain overt statements regarding its purpose. It contains no explicit reference to a specific purpose for denying enhanced credit to an offender denied bail by reason of his behaviour while on a previous bail.

[54] The Supreme Court considered the intent of Parliament in enacting the TISA in R. v. Summers, 2014 SCC 26, 2014 S.C.C. 26 at para. 51-58. The Court concluded that one intent was to restrict the amount of credit given for pre-sentence custody, and, in particular, to stop judges’ routine practice of granting 2:1 credit for pre-sentence custody. This, then, was addressed by ss.719 (3) and (3.1), which limit credit for pre-sentence custody to 1:1, unless circumstances justify 1.5:1.

[55] Chief Justice McLachlin, however, has outlined succinctly at paragraphs 45 to 49 of Safarzadeh-Markhali, what the legislative purpose and effect of s. 719(3.1) is:

First, 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.

Second, the legislative purpose of the total denial of enhanced credit for pre-sentence custody to offenders who are denied bail because of a prior conviction is to enhance public safety and security by increasing violent and chronic offenders’ access to rehabilitation programs. To be sure, the Minister referred to other legislative purposes – providing adequate punishment, increasing transparency in the pre-sentence credit system, and reducing manipulation. But these are peripheral for the reasons discussed above.

Third, the means for achieving the purpose of enhancing public safety and security is the challenged provision itself – denial of enhanced credit for pre-sentence custody to persons refused bail primarily on the basis of their criminal record.

Finally, the effect of the provision is to impose longer periods of custody on all persons who receive an endorsement indicating they were denied bail primarily on the basis of previous conviction.

[56] The applicant asserts that there is no stated legislative intent of the TISA to change the behaviour of people on bail through deterrence. Parliament only intended to restrict the amount of pre-sentence credit given by judges because of breaches of bail. Another goal was to make the system more transparent and prevent offenders from “gaming” it. Therefore, “Achieving adequate punishment is not, in the s.7 analysis, a purpose of the challenged legislation” (Safarzadeh-Markhali, para. 34 and 41).

[57] The TISA, when interpreted through the modern approach to statutory interpretation, requires the same approach be applied to the previous conviction and misconduct exceptions. TISA must be interpreted in its grammatical and ordinary sense, harmoniously with the scheme of the act, object of the act, and the intention of Parliament. A common sense approach to this exercise dictates the same rationale applies to the previous convictions and misconduct exceptions, as the legislature is presumed to have created a coherent, consistent and harmonious statutory scheme (Summers, para. 35 and 59).

[58] The purpose, then, of denying enhanced credit to offenders because of misconduct on bail is to “enhance public safety and security by increasing violent and chronic offenders’ access to rehabilitation programs.” The means for achieving this is a blanket denial of enhanced credit for all offenders denied bail under either s.524 (4) or (8). The effect of this is to impose longer periods of custody on all persons who are denied bail under s. 524(4) or (8).

[59] An offender arrested under s. 524 need not have a bail hearing to be denied enhanced pre-sentence credit. A separate detention order after a bail hearing is not required to engage the misconduct exception (R. v. Akintunde, para. 24, 25 and 31). This is some support for the inference that the effect of the misconduct exception is to deny enhanced credit based on an offender’s ability to obtain bail after being arrested while on bail. His consent to his own detention or not having a bail hearing is acknowledgment by many accused that they do not have the means to satisfy a court that they can be released on bail.

[60] There is no difference between the effects of the previous conviction exception and misconduct exception. Both portions of the section allow the determination of bail to dictate how long an offender will spend in custody. This effect is divorced from the stated objective of the legislation, which is to target wrongful conduct or violent offenders, thereby enhancing public safety and security. As stated by the Manitoba Court of Appeal:

The effect of the legislation does not further its stated objective. It does not target wrongful conduct or violent offenders. It targets the inability to get bail. It targets people who breach their bail or have lengthy criminal records, but are then unable to show cause why they should nonetheless be released. So, a homeless individual on release who breaches his bail condition may be retained in custody, while another individual on release who breaches his bail conditions, may be released because he has employment, a secure residence and multiple sureties. As a result of these provisions, the two will serve different amounts of time in a correctional institution, even though convicted of the same crime and given the same sentence. (R. v. Kovich, para. 9 and 106).

[61] The conclusions reached by the Chief Justice in Safarzadeh-Markhali are directly applicable to the misconduct portion of s.719 (3.1). The misconduct exception does not recognize the many factors that potentially underlie a person’s ability to obtain bail and, in the meantime, impose a blanket prohibition against enhanced credit. The denial of enhanced credit to all offenders denied bail under the misconduct exception is overbroad because it impacts people in ways “that have nothing to do with enhancing public safety or security.” (Safarzadeh-Markhali, at para. 52).

[62] Also, in Mr. Campbell’s case, he has served a sentence for failing to comply with his bail and assaulting the police officer. To deny him enhanced credit of 1.5:1 would, in effect, be penalizing him again for those crimes.

CONCLUSION

[63] Section 719(3.1) of the Criminal Code infringes Mr. Campbell’s s. 7 Charter rights by being overbroad. The words challenged in the legislation shall have no force and effect.

[64] And, for the reasons set out, I am prepared to give the applicant enhanced credit for time already spent in custody on a 1.5:1 basis. That credit will be 707 days in custody.

DECISION ON SENTENCING

Circumstances of the Offender

[65] Mr. Campbell is 32 years old and is a first offender. He has supportive, yet disappointed, parents. They, and the rest of his family, expected more. The applicant has 3 brothers and a sister as well as extended family who are shocked at the offenders actions. Mr. Campbell’s lawyer maintains that, but for the applicant’s associates, he would not have got involved with Ms. Snow or the firearm. Various letters of support filed on the sentencing paint a picture of the offender as being a hard working member of society who is now deeply ashamed of his actions towards Ms. Snow. The fact that this is Mr. Campbell’s first conviction, as a man in his thirties, tends to make the letters credible.

[66] Mr. Campbell also has two children (9 and 4 years old) and their mother, Shayne Downey, supports Mr. Campbell and will assist in his rehabilitation and reunification with his children once he is released. The couple has known each other for 14 years.

[67] The applicant took one year of a two year program at George Brown College. He has worked with his father in the family automotive business since age 16 and has employment in that business waiting for him when he is released from custody. He wishes to continue his education by getting a welder’s certificate and working with his father or opening a restaurant.

[68] Mr. Campbell has also completed two programs while incarcerated. The first is a 1 hour “Understanding Feelings Educational Session”, dated October 14, 2014. The second is an “Employment Skills and Job Readiness Program” (November 19, 2015). This is some evidence of his wish to rehabilitate himself.

Victim Impact Statement

[69] Ms. Snow filed a victim impact statement (V.I.S). She wrote that she suffered fear, paranoia and panic attacks as a result of the offence committed against her. She became fearful of leaving her home, fearful for her family’s safety and fearful of using social media because she believed Mr. Campbell or someone he knew would try to contact her.

[70] She has, however, changed her life as a result of being victimized by Mr. Campbell. She indicated in the V.I.S. that she has left prostitution, is now employed and is back in school.

Case Law on Exercising Control and Firearms Offences

Exercising Control

[71] The Crown filed cases where the offenders had pleaded not guilty to the offences of human trafficking, living off the avails, procuring females under 18 years of age, exercising control, and assaults and forcible confinement. This case is a guilty plea. Most of the cases filed by the Crown also cover periods of control longer than in this case. The range of sentence of 5 to 8 years is appropriate after a trial and in relation to the facts of those cases, but not in Mr. Campbell’s circumstances.

[72] I am guided by the following cases.

[73] First, in R. v. S. (R. R.), 2016 ONSC 2939, [2016] O.J. No. 2411 (S.C.), a 33 year old man was convicted after trial of human trafficking over a period of 4 months when he directed the 19 year old victim to provide sexual services to men and to provide him with all of her money. He had not introduced her to prostitution, she had some imput into her working conditions and she was never physically restrained from leaving, although the defendant controlled her through threats, physical violence and emotional manipulation. The defendant had a lengthy criminal record with 30 convictions including domestic assaults and breaches of court orders. He had minimal insight into his actions and expressed no accountability for them. The defendant was sentenced to 5 years in jail.

[74] In R. v. Bennett, [2004] O.J. No. 1146 (C.A.), the appellant’s sentence was varied to four years and six months. The offences involved 3 female complainants under the age of 18 years. He compelled the girls to engage in prostitution and he lived off the avails they earned. The appellant had a criminal record for unrelated crimes and his prospects for rehabilitation were not hopeless.

[75] In R. v. McPherson, 2013 ONSC 1635, after a trial, the 36 year old defendant was sentenced to 3 years for procuring a 19 year old to become a prostitute for over one and one half years. He exercised significant control over the victim by dictating her schedule, work locations, the type and quantity of sexual acts she was required to perform. The accused took the money the victim earned and lived off these proceeds. His abuse left a lasting impact on her. The accused had a dated record for theft, obstructing police, failing to comply with both probation and failing to appear for court.

[76] In R. v. Downey 1990 Carswell NS 410, the defendant was convicted of procuring and exercising control over his girlfriend to become a prostitute. He assisted her by acting as her pimp and kept half the proceeds. The offence took place just over a two week period and when the victim refused to move to Montreal to work as a prostitute there, the defendant attempted to charge her $1500 to leave the sex trade. The defendant was 21 years old at the time of sentencing and had no prior record. The appeal court varied an intermittent sentence to 16 month jail, concurrent, on each of the charges.

Firearms Offences

[77] In the case of R. v. Egonu, [2007] O.J. No. 5607, the offender was sentenced to 23 months in custody for the same type of firearm that Mr. Campbell has pleaded guilty to possessing. Mr. Egonu was also convicted for careless storage of the firearm. The offender in that case had two prior convictions for possessing marijuana, but otherwise was a university student and a qualified insurance salesman with prospects for rehabilitation.

[78] In R. v. Filian-Jimenez, 2014 ONCA 601, the Ontario Court of Appeal upheld the trial judge’s sentence of 18 months in jail for convictions of unlawful possession of a loaded restricted firearm and unauthorized possession of a firearm. The firearm was obtained for protection as the offender had feared for his and his family’s life because he had repudiated his gang membership. He entered an early guilty plea. He was engaged in full time employment and had changed his lifestyle.

[79] The Ontario Court of Appeal upheld an 11 month sentence on a guilty plea for the possession of a sawed-off-semi-automatic rifle with banana clip in R. v. Gomes 2015 ONCA 763. The firearm had been altered to be concealed against detection, yet accessible. The weapon was not loaded, but the Court found that the circumstances – possession of the weapon at 1:15am in a residential neighborhood, created a dangerous situation. The offender was young and a first offender.

[80] In R. v. Shomonov 2016 ONSC 4015, a 29 year old male with no prior criminal record accidently discharged an unauthorized semi-automatic firearm and shot himself in his hand. A second unauthorized firearm was found by police, along with ammunition, 90 grams of marijuana and $1800 cash. The defendant was sentenced to 21 months in jail after admitting his guilt. The sentencing judge was satisfied that the defendant had purchased the firearms and ammunition for his protection rather than engaging in other criminal activity. He had no prior record and was a hard-working man who had developed legitimate and successful businesses.

[81] Finally, the Ontario Court of Appeal, in R. v. Smickle 2014 ONCA 29, declared the mandatory 3 year minimum sentence for possession of a loaded illegal firearm unconstitutional as it breached ss. 12 and 7 of the Charter of Rights. A sentence of 12 months was imposed for the appellant’s holding a firearm in his hand with an intention of posting his picture on Facebook as police, exercising a search warrant, burst through the door of his residence.

Institutional Conditions and ‘Downes’ Factors For Enhanced Credit

[82] The evidence led on this application shows that there have been 183 lockdown days at the Toronto South Detention Centre (TSDC) since Mr. Campbell was housed there. He asks for a further period of pre-trial custody to account for these conditions.

[83] None of the lockdowns have had anything to do with any misconduct on Mr. Campbell’s part. In fact, he has had no misconducts while incarcerated and works as a cleaner on his range. The affidavit filed on this sentencing hearing sets out the following, none of which has been challenged by the Crown:

1. The defendant was locked into his cell for 23 hours a day during some full lockdowns. There were some exceptions for showers, but the showers were not always provided;
2. Visits were curtailed and limited to 20 minutes two times per week;
3. No physical exercise was permitted and whether inmates received fresh undergarments and clothes was left to the discretion of individual officers on the shifts;
4. Meals were served in the cells rather than at tables in the common area of the range;
5. The inmates were unable to participate in programming aimed at rehabilitation. Programs offered in September, 2015 were not being offered by October, 2015. In November, 2015, TSDC staff stopped offering programming altogether until January, 2016 in preparation for a potential strike;
6. Mr. Campbell feels that his mental health has deteriorated and that he suffers from depression, although there is no medical diagnosis nor medications prescribed to him. He has also gained 40 to 45 pounds while incarcerated.

[84] As a result of this evidence, I am prepared to give the defendant 3 months enhanced credit on top of the pre-trial custody already served (R. v. Bedward 2016 ONSC 939 at para 11-14; R. v. Doyle, 2015 ONCJ 492 at para 14-16; R. v. Edwards-Lafleur 2016 ONCJ 97 at para 19-25; R v. Gardner 2016 ONCJ 45 at para121- 127; R. v. Shah 2016 ONSC 2651 at para 60 and 61).

[85] As well, Mr. Campbell asks for a further period of credit for successfully completing his house arrest release from May 2, 2014 to September 1, 2015 pursuant to R. v. Downes, 2006 CarswellOnt 778, in which the Ontario Court of Appeal has set out that time spent under stringent bail conditions, especially under house arrest, must be taken into account as relevant mitigating circumstances when determining the length of a sentence.

[86] Mr. Campbell’s house arrest bail was in effect for approximately 16 months before he was arrested for failing to comply with it and assaulting the police officer who attempted to arrest him for his breach. The terms of his bail were stringent. He was ordered to remain in his residence at all times unless in the company of his surety or while at work, in court or in meetings with counsel. He was not allowed to possess a cell phone, pager or any personal digital assistant.

[87] In light of the fact that he was successful for over a year on this release, I am prepared to credit him with a further 3 months of pre-trial custody.

[88] I am, then, prepared to credit him with 180 days (six months) of pre-trial custody over and above the 707 days he has already served for a total of 887 days.

[89] The aggravating features of the case are:

1. Although the defendant did not physically assault the complainant, he threatened her with violence (mentioning a firearm), made her stand against a wall, took her phone and used a female to help him control her while she performed sexual acts so that he could take all of the proceeds;
2. Even if the complainant held herself out to be 20 years old, there was still a ten year gap in her and the defendant’s ages;
3. The impact on the victim was significant, however, she has reported in the V.I.S. that the offence has broken a cycle of prostitution in her life and she is seeking an education and works at present;
4. The nature of the firearm, which was a rapid fire weapon with a formidable appearance, was no ordinary handgun. Due to its short barrel, it can be easily concealed and readily deployed;
5. The firearm’s serial number and model number were defaced making it untraceable;
6. The firearm was stored in a careless manner in a cardboard box inside a semi-public storage unit;
7. The applicant also had an air pistol at his home and a picture of the Tech-9 on his phone, which suggests more than a fleeting interest in the weapon;

[90] The Crown suggests that because of the accompanying offence of Exercising Control, any sentence for the firearm should be greater than two years. However, the facts of this case do not involve the use of the firearm in Mr. Campbell’s dealings with Ms. Snow. Also, the Crown has not sought to prove beyond a reasonable doubt that the victim actually saw a real firearm or that there was a firearm in the possession of the defendant in the car on the way to Toronto from Barrie where Mr. Campbell and his two associates picked up Ms. Snow in order for her to work for them. I am not, as a result, able to find that the firearm is linked to the prostitution charge.

[91] The mitigating factors of the case are;

1. This is a guilty plea and I accept that the defendant is remorseful:
2. Mr. Campbell is a first offender;
3. Mr. Campbell has taken programs while in custody, which is some evidence of his attempts at rehabilitation;
4. The exercising control offence itself was perpetrated over a two and one half day period. Mr. Campbell and Ms. Snow were originally friends and there were no physical interactions between them while the offence was being committed. The arrangement was mutually acceptable until the Thursday night. The victim ran her own internet advertisements and a total of 6 clients were serviced by her. Ms. Snow wanted to leave Mr. Campbell because she felt he was not providing her with drugs, clothes and cosmetics, not because she was forced to work as a prostitute;
5. Ms. Snow had already been prostituting herself from the age of 15 (one and a half years before the offences) and was not led into prostitution by the defendant. There is no evidence that the defendant retrieved or forced Ms. Snow to leave the hotel she was prostituting herself in in Barrie;
6. The complainant was addicted to drugs and was not unsophisticated;
7. There is no evidence the defendant supplied the victim with drugs;
8. Even though the victim was, in fact, 16 years old, she let the defendant believe that she was 20 years old;
9. There is no evidence that Mr. Campbell was aware of the alleged gun Ms. Snow saw two other males pass in the car on the trip from Barrie to Toronto;
10. The Tech-9 firearm was not loaded or used in any manner in the offence of controlling Ms. Snow.

DISPOSITION

[92] In all of the circumstance of this case, a sentence of 21 months in custody is appropriate for the exercising control offence and a sentence of two years, consecutive, is appropriate for the possession firearm count. The total sentence is 45 months in prison. With the enhanced credit of 23 months and 8 days applied to that sentence, the defendant has a further 21 months and 22 days in jail to be served.

[93] When released from custody, Mr. Campbell shall be on probation for two years with the following terms;

1. Report to your probation officer upon your release and then as directed by your probation officer;
2. Keep the peace and be of good behavior;
3. Do not possess any weapons as defined by the Criminal Code;
4. Maintain employment and/or be enrolled in an education program;
5. Do not possess any non-medically prescribed drugs;
6. Have no contact directly or indirectly with the victim, Ms. Kelsey Snow, and do not be within 500 metres of her residence, her place of employment or anywhere that you know her to be;
7. Take any treatment recommended by your probation officer and sign any consents necessary for him/her to monitor your progress in any such program;
8. Do not have any contact directly or indirectly with your co-accuseds, Mr. Timothy Hewton or Ms. Serenity Timberey-Welcome unless it is through counsel for the preparation of Mr. Hewton’s defence in this matter. Ms. Timberey-Welcome has already been sentenced by me.

Ancillary Orders

[94] There shall be an Order that a sample of the defendant’s DNA be taken and stored in the National DNA data bank pursuant to section 95 of the Code.

[95] There shall be an Order pursuant to s. 109 of the Code that the defendant may not possess any firearm, ammunition or other substances as set out in that section for life.

[96] The defendant shall not communicate directly or indirectly with the victim while he is in custody pursuant to s. 743.21.

[97] All remaining counts relating to Michael Campbell on the Indictment shall be noted withdrawn by the Crown.

McWatt, J. Released: January 13, 2017.

COURT FILE NO.: CR-16-1/592 DATE: 2017-01-13 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Michael Campbell, Defendant/Applicant REASONS FOR JUDGMENT McWatt, J. Released: January 13, 2017