Court File and Parties
COURT FILE NO.: 1304/15 DATE: 2017 05 11
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Sam Weinstock, for the Crown
- and -
Deanna Passera Marianne Salih, for the Defence
HEARD: September 21, 2016, November 1, 2016, April 3, 2017
REASONS FOR SENTENCE
Woollcombe J.
A. Overview
[1] On August 24, 2014, Ms. Passera was arrested on a charge of importing cocaine. On August 18, 2016, a jury found her guilty. The sentencing hearing took place on September 21, 2016. Ms. Passera was remanded to November 1, 2016 for the imposition of sentence.
[2] On September 27, 2016, while my sentencing decision was under reserve, Ms. Passera filed a notice of constitutional question in respect of s. 719(3.1) of the Criminal Code, the provision that caps the maximum credit for pre-sentencing custody at a rate of 1.5:1. On October 26, 2016, she filed an amended notice of constitutional question which expanded the challenge to include s. 719(1) of the Criminal Code, the provision that states that a sentence commences on the date on which it is imposed, absent another statutory provision providing otherwise. In her notice, Ms. Passera asked that on November 1, 2016, I fix the schedule for the constitutional issues.
[3] Ms. Passera also filed an application for judicial interim release, returnable on November 1, 2016.
[4] On November 1, 2016, both parties agreed that as a result of the notices of constitutional question that had been filed, sentencing should be re-opened. Ms. Salih, on behalf of Ms. Passera, requested and was given until January 31, 2017, a period of three months, to file materials in support of the defence application. The Crown was given until March 3, 2017 to respond. The matter was then set for a one-day oral hearing on April 3, 2017.
[5] On November 1, 2016, I also heard Ms. Passera’s application for judicial interim release. Ms. Passera had been in custody continuously since her arrest. I dismissed the application.
[6] Ms. Passera then brought an application “in the nature of habeas corpus with certiorari in aid” seeking various declarations, including that a judge of the Superior Court of Justice has the inherent jurisdiction to review the detention and grant bail. It was her position that the application judge should grant her bail pending sentencing. That application was heard on February 6, 2017.
[7] On February 21, 2017, Ms. Passera’s habeas corpus application was dismissed. She appealed that decision to the Court of Appeal. The appeal was heard on March 31, 2017 and dismissed. The Court subsequently provided its reasons: 2017 ONCA 308, [2017] O.J. No. 1874.
[8] On April 3, 2017, I heard submissions of counsel in respect of the constitutional challenges to ss. 719(3.1) and (1). I reserved my decision until May 11, 2017.
[9] These reasons address both the constitutional application and the sentence to be imposed.
B. The Constitutional Issues
i) The Positions of the Parties
[10] Ms. Passera’s amended notice of constitutional question sets out the following legal basis for the constitutional question before me:
The effect of s. 719(1) and the cap on enhanced credit created by s. 719(3.1) is to require an offender who is detained pending trial to serve a lengthier sentence than an identically situated offender who is released pending trial. The law is therefore overly broad and arbitrary, contrary to s. 7 of the Charter of Rights and Freedoms (the “Charter”). The law also results in grossly disproportionate sentences between similarly situated offenders, and therefore violates section 12 of the Charter. The law cannot be upheld as a reasonable limit under section 1 of the Charter.
[11] In essence, I understand Ms. Passera’s position to be that because she was detained in custody pending sentencing, and because whatever sentence I impose will not commence until it is imposed, she will inevitably serve longer in custody before being eligible for parole than had she been released on bail pending trial. She argues, on this basis, that it is unconstitutional to treat offenders differently based on their ability to obtain judicial interim release and that this is the effect of these two sections. She submits that this differential treatment results in a violation of both ss. 7 and 12 of the Charter.
[12] As a remedy, Ms. Passera asks that I conclude that s. 719(1) of the Criminal Code is of no force and effect. In terms of interim relief, she asks me to deem that her sentence commenced on the date of her arrest, and to direct that her parole eligibility and statutory release dates be calculated on that basis.
[13] It is the Crown position that the punishment faced by Ms. Passera does not violate s. 12 of the Charter. Further, the Crown says that the effect of ss. 719(1) and (3.1) does not violate Ms. Passera’s s. 7 right. The fact that Ms. Passera’s sentence may not be identical to another offender does not make her punishment unconstitutional.
ii) The Relevant Legislation
[14] Section 719(1) of the Criminal Code provides:
A sentence commences when it is imposed, except where a relevant enactment provides otherwise.
[15] Section 719(3) and (3.1) of the Criminal Code provide:
(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated on the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).
[16] Once sentenced to serve a period of custody, prisoners are eligible for release under federal or provincial legislation, depending on the length of their sentence.
[17] Under the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”), parole is available to federal inmates after serving one third of their sentence (s. 120(1)). Statutory release is available after serving two thirds of their sentence (s. 127(3)). Offenders serving a sentence of two years or more are eligible for day parole six months before full parole may be granted, or after six months, whichever is greater (s. 119(1)(c)).
[18] Provincial inmates are credited with earned remission under the Prisons and Reformatories Act, R.S.C. 1985, c. P-20. This is credited at a rate of 15 days per month (s. 6). In Ontario, under the Ministry of Correctional Services Act, R.R.O., 1990, c. M.22, Regulation 778, the portion of the term of imprisonment that an inmate must serve before parole may be granted is one third of the total term of imprisonment (s. 41(1)).
[19] The Supreme Court of Canada observed in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 25 that:
In practice, the “vast majority of those serving reformatory sentences are released on ‘remission’…at approximately the two-thirds point in their sentence”, and only two to three percent of federal prisoners are not released either by way of parole or “statutory release” …
iii) Section 7 of the Charter
[20] Section 7 provides that: “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] Ms. Passera acknowledges that because the maximum credit offenders can receive for pre-trial custody under s. 719(3.1) is 1.5:1, the legislation compensates offenders for time spent in custody so that those detained pending sentencing and those released on bail serve the same amount of time before being eligible for statutory release or earned remission (their two thirds date). But, she asserts that the statutory regime does not compensate fairly when determining parole eligibility dates. This is because she says that the effect of the legislation is to require those detained in custody to serve longer in custody than those released before they are eligible to apply for day parole and full parole.
[22] The s. 7 analysis requires the court to proceed in three stages: R. v. White, [1999] 2 S.C.R. 417 at para. 38. The first question is whether there is a real or imminent deprivation of life, liberty or security of the person. The second stage involves the court identifying and defining the relevant principle or principles of fundamental justice. Finally, the court must determine if the deprivation has occurred in accordance with the relevant principles of fundamental justice. Where a deprivation of life, liberty or security of the person has occurred which does not accord with principles of fundamental justice, there will be a finding of a s. 7 violation.
[23] There is no question that ss. 719(1) and 719(3.1), in conjunction with the CCRA, engage an accused’s liberty interest and may deny liberty.
[24] The next questions engage an analysis of what the relevant principles of fundamental justice are, and whether any deprivation of liberty is in accordance with the principles of fundamental justice.
[25] Three principles of fundamental justice have emerged as central to s. 7 jurisprudence. Laws that impinge on life, liberty and security of the person must not be: first, overbroad; second, arbitrary; or, third, have consequences that are grossly disproportionate: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para 72.
[26] In order to determine both overbreadth and arbitrariness, consideration must be given to the purposes of ss. 719(1) and 719(3.1). Understanding of purpose, for this s. 7 analysis, requires the court to look at: statements of purpose in the legislation, if any; the text, context and scheme of the legislation; and extrinsic evidence such as legislative history and evolution: R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, at para. 31.
[27] Ms. Passera’s position is that s. 719(1), which provides that a sentence commences when it is imposed, has no identifiable purpose. This appears to be the central theme of many of her submissions.
[28] In my view, the purpose of s. 719(1) cannot and should not be determined in isolation. Rather, the legislative scheme created along with it by Parliament must be considered. As the Supreme Court of Canada recognized at para. 59 of Summers, the legislature “is presumed to have created a coherent, consistent and harmonious statutory scheme”. Understanding of that scheme is critical to assessing the constitutionality of one sub-section of it. Parliament is presumed to know the legal context in which it legislates, including the effects of the various components of s. 719, which operate together.
[29] In Summers, Karakatsanis J. reviewed in detail the statutory scheme for crediting pre-sentence custody. She explained at para. 26 that:
Because a sentence begins when it is imposed (s. 719(1)), and the statutory rules for parole eligibility and early release do not take into account time spent in custody before sentencing, pre-sentence detention almost always needs to be credited at a rate higher than 1:1 in order to ensure that it does not prejudice the offender.
[30] In other words, the Supreme Court of Canada recognized that the practice of awarding credit for time spent in custody flows from the legitimate choice of Parliament to have sentences commence when they are imposed. Karakatsanis J. observed that the structure of the Criminal Code reflects the quantitative rationale for enhanced credit (the loss of eligibility for parole and early release) and the qualitative rationale for enhanced credit (the onerous nature of pre-sentence remand). She also observed that the structure of s. 719 has resiliency built into it. Indeed, she noted at para. 50, that:
If Parliament were to amend the Corrections and Conditional Release Act, so that pre-sentence custody counted for the purposes of parole eligibility and early release, s. 719(3.1) would only be called upon to account for the qualitative harshness… [Emphasis in original.]
[31] The Court went on in Summers to review the history of offenders being credited for pre-sentence custody, explaining that the quantitative rationale for granting enhanced credit was “to ensure that the offender does not spend more time behind bars than if he had been released on bail”: para. 23. The Court recognized that this objective has, over time, been accomplished in a variety of manners. Prior to 2009, a practice developed of granting credit for pre-sentence detention at a rate of 2:1. One effect of this, of course, was that offenders sometimes chose to spend time in remand custody in the hopes of receiving a shorter time of imprisonment once they were credited for the time served. [1]
[32] In 2009, Parliament enacted the Truth in Sentencing Act, S.C. 2009, c. 29 (“TISA”). The Court accepted, at para. 52 of Summers, that it was Parliament’s intent to restrict the amount of pre-sentence custody credit. Parliament intended that the process of granting credit under s. 719 be more transparent and easily understood. It also intended to remove any incentive for an accused to drag out time in remand custody.
[33] In Safarzadeh-Markhali, the Supreme Court again commented on the purpose of the TISA legislation, reiterating that one broad purpose was to enhance public confidence in the administration of justice. The Court had said in Summers that one of the drawbacks to time spent in pre-sentence custody is that offenders often do not have access to the educational, training and rehabilitative programs that are offered to offenders after sentencing. By reducing the amount of credit for pre-sentencing custody, and thus increasing the time that those detained pending sentence serve after being sentenced, Parliament was effectively ensuring that those detained in remand would have, post sentencing and before being released, more time to access the many resources that are frequently not available while in remand custody.
[34] The Supreme Court of Canada recognized in Summers that s. 719(3.1) needed to be interpreted in a manner consistent with the “parity principle”. This means that the legislation cannot be interpreted so that a longer sentence is served by an offender who does not obtain bail than by an otherwise identical offender who does obtain bail. The Supreme Court of Canada held in Summers that the maximum credit of 1.5:1 achieves parity for all offenders at their statutory release date.
[35] At the same time, the Court also acknowledged, at para. 63 that enhanced credit of 1.5:1 for pre-sentencing custody does not create “absolute parity” between offenders who are released pending sentence and those who are not. There are, necessarily, some exceptions, which the Court acknowledged are legitimate. Indeed, Karakatsanis J. specifically commented at para. 63 that exceptions to parity and the scope of disparity will vary depending on if and when offenders are released. Exceptions to the parity principle occur because the enhanced credit regime is predicated on both offenders being released at the two-thirds mark of their sentence.
[36] The Court concluded, at para. 63 that:
…the scope of disparity will vary, depending on if and when offenders are ultimately released. Nonetheless, a rule that creates structural differences in sentences, based on criteria irrelevant to sentencing, is inconsistent with the principle of parity.
[37] I understand the Supreme Court of Canada to have accepted in principle that the regime created through the TISA, under which offenders are credited with a maximum of 1.5:1 credit for pre-sentence custody, creates reasonable parity between those who are released pending sentencing and those who are detained pending sentencing. This is so despite the fact that the parity will not be perfect because some offenders are released after serving one third of their sentence and others are never released during their sentence. Notwithstanding this, the Court accepted the scheme to be one that, from a constitutional perspective, achieves parity.
[38] The context of the legislation at issue also means considering it in light of the CCRA, as this is the legislation that sets out the provisions respecting parole.
[39] As the Supreme Court of Canada observed in R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41, at paras. 19-20:
- Determining the date and conditions of parole eligibility is usually the prerogative of an administrative body, the Parole Board, in the discharge of its supervisory functions over the execution of sentences. Over time, however, the focus of legislation has shifted. The Corrections and Conditional Release Act (the "Act") now puts more emphasis than before on the protection of the public and less on pure rehabilitation objectives and concerns. (See for example, ss. 4, 102 and 126; also, H. Dumont, supra, at p. 299.) Nevertheless, the decision-making process under the Act remains much different from the judicial determination of a fit sentence. It is largely based on the ongoing observation and assessment of the personality and behaviour of the offender during his or her incarceration, which focuses on dangerousness and the offender's ability to re-enter the community (H. Dumont, supra, at p. 333). Such a process may extend over several years and lead to decisions that are highly attentive to context and based, at least in part, on what actually happened during the incarceration of the offender.
20 At the end of this process of observation and review, full parole may be granted. The granting of full parole does not amount to a reduction of the jail sentence. The offender is still serving his or her sentence until the end of the term. Our Court has defined such a decision as an alteration of the conditions under which the sentence is being served (Cunningham v. Canada, [1993] 2 S.C.R. 143 (S.C.C.), at pp. 150-51, per McLachlin J. (as she then was); M. (C.A.), supra, at para. 61). At the same time, under s. 128 of the Corrections Act, the offender on full parole is entitled to remain at large and is not obliged to live within the four walls of the correctional institution. Although the sentence is not over and measures of supervision remain in place, full parole grants an offender a very substantial degree of personal freedom. As mentioned above, this process generally used to fall outside the functions of the sentencing courts, which did not have to concern themselves about parole eligibility, its conditions and its supervision.
[40] All federal offenders are subject to not only ss. 719(1) and 719(3.1), but also to the various applicable provisions of the CCRA, which seeks to protect the public and facilitate reintegration of offenders into society after serving their sentences. Parliament has also ensured that all federal offenders come under the purview of the Parole Board by the inclusion of s. 119(1)(c) of the CCRA. That section provides that no offender in the federal system is eligible for day parole until after serving at least six months in custody after being sentenced. Like the TISA, this provision ensures that offenders have an opportunity to take advantage of programs that they might not have available to them while in custody on remand, and provides the Parole Board with an opportunity to assess offenders before their possible release.
[41] Having reviewed the purposes and context of the scheme of the legislation created by Parliament, I turn now to the concepts of overbreadth and arbitrariness, two of the principles of fundamental justice said by Ms. Passera to be violated by ss. 719(1) and 719(3.1). I will address the principle of gross disproportionality when I consider the s. 12 argument.
Overbreadth
[42] The overbreadth inquiry asks whether the law goes too far by targeting conduct or people that have no relation to its purpose. The question is whether the legislation sweeps within its ambit those unrelated to its objectives.
[43] As the Supreme Court of Canada explained in R. v. Moriarty, 2015 SCC 55, [2015] 3 S.C.R. 485, a law that has no connection with its objective is fundamentally flawed. The overbreadth analysis turns on the relationship between the objective of the law and the effects that flow from the means that the law uses to achieve that objective. As I have already said, the starting point, therefore, is to look at the proper characterization of Parliament’s purpose in enacting the legislation.
[44] As set out above, the purpose of the TISA was to restrict credit for pre-sentence custody while at the same time making the process of granting pre-sentence custody more transparent and easily understood. The legislation was also intended to prevent offenders from dragging out remand time in order to reduce the time they ultimately spent in custody.
[45] In Safarzadeh-Markhali, the Supreme Court of Canada held that denying pre-sentence custody to offenders who are denied bail because of prior convictions was overly broad because it denied credit to those who did not pose a threat to public safety and security. In other words, one component of the legislation had the effect of denying pre-sentence custody to those whom Parliament had no intention of capturing.
[46] Similarly, in R. v. Meade, [2016] O.J. No. 5952, Fuerst J. held that the bail misconduct prong of s. 719(3.1) violated s. 7 because it was overly broad in that it captured individuals in ways that had nothing to do with public safety and security.
[47] At issue in this application is not a denial of pre-sentence credit on a basis that is overbroad. Ms. Passera accepts that s. 719(3.1), as it is understood following Summers, does not deny enhanced pre-sentence custody credit to those who are detained. Indeed, it allows for all detained offenders to be granted enhanced credit at a rate of 1.5:1. This is done in order to compensate all offenders for the qualitative and quantitative effects of serving pre-sentence custody. Because these offenders do not, by virtue of s. 719(1), begin serving their sentences until after serving some period of time in custody, they are all eligible, on the same, identifiable basis, to receive not only credit for the time in pre-sentence custody, but also the enhanced compensating credit already described.
[48] Ms. Passera concedes in her factum that, standing alone, s. 719(3.1) is not overly broad because it applies in the same manner to all offenders who serve time in custody pre-sentencing. I agree.
[49] Where I part company with Ms. Passera is her suggestion that the legislation is overly broad and in violation of s. 7 because its effect is to create a system where those detained have longer before being parole eligible than those released pending sentencing.
[50] I do not see the law as being so broad as to capture conduct that bears no relation to its purpose. Its purpose is to address how much credit offenders denied bail pending sentencing should receive for that time in custody in a manner that is transparent, easily explained, and clear to everyone. Its purpose is also to account for the prejudicial circumstances of remand custody by providing for enhanced credit to account for loss of eligibility for parole and early release and for the harshness of conditions in remand.
[51] S. 719(3.1) accomplishes these objectives in the same manner for all offenders who are detained pending sentencing. Indeed, the legislation, as it is now understood in light of Summers, ensures that the time spent in custody until statutory release is identical for those detained pending sentencing and those released.
[52] In Cunningham v. Canada, [1993] 2 S.C.R. 143, McLachlin J., as she then was, considered a change in the Parole Act, R.S.C. 1985, c.P-2, that had the effect of denying release for an offender who had anticipated being released on his presumptive release date until his warrant expiry date. While holding that the offender had suffered a deprivation of liberty, the Court held that the amendment that eliminated automatic release on mandatory supervision did not violate the principles of fundamental justice. The Court held, at para. 19, that:
A change in the form in which a sentence is served, whether it be favourable or unfavourable to the prisoner, is not, in itself, contrary to any principle of fundamental justice. Indeed, our system of justice has always permitted correctional authorities to made appropriate changes in how a sentence is served, whether the changes relate to place, conditions, training facilities, or treatment. Many changes in the conditions under which sentences are served occur on an administrative basis in response to the prisoner’s immediate needs or behaviour. Other changes are more general. From time to time, for example, new approaches in correctional law are introduced by legislation or regulation. These initiatives change the manner in which some of the prisoners in the system serve their sentences.
[53] I take from this that there is no necessary violation of the principles of fundamental justice inherent in a scheme that changes the form or conditions under which a sentence is served.
[54] In my view, there is nothing overbroad about the manner in which ss. 719(1) and 719(3.1) operate. Parliament has chosen to create perfect parity between offenders detained and those released pending trial in terms of custodial time that must be served before statutory release. Parliament is presumed to have known, when it enacted the TISA, that one of its effects was to lengthen the time a detained person would serve before being parole eligible, as compared with a released offender. The Supreme Court of Canada has recognized that parity does not necessitate absolute parity, and that changes to the conditions in which a sentence is served does not necessarily violate a principle of fundamental justice. I cannot accept that the impugned legislation is overbroad and captures those Parliament had no intention of capturing.
Arbitrariness
[55] In Carter, the Supreme Court of Canada explained, at para. 83, that:
The principle of fundamental justice that forbids arbitrariness targets the situation where there is no rational connection between the object of the law and the limit it imposes on life, liberty and security of the person…An arbitrary law is one that is not capable of fulfilling its objectives. It exacts a constitutional price in terms of rights, without furthering the public good that is said to be the object of the law…
[56] Arbitrariness examines whether there is a rational connection between the purpose of the law and the limits it imposes on s. 7 interests. In the context of this case, the question is whether the limit on credit for pre-sentencing custody imposed by the legislation is rationally connected to the objective of the legislation, which is to create a transparent scheme that fairly credits offenders denied bail for the time they spend in pre-sentence custody.
[57] In my view, there is nothing arbitrary about the scheme, when considered as a whole. I find that the legislation is a rational way to accomplish the statutory objectives that were identified by the Court in Summers.
[58] I acknowledge that one of the effects of the legislation may be that those denied bail will serve longer in custody awaiting parole eligibility than those who are released. One of the justifications for this, in my view, becomes apparent when the Criminal Code provisions are considered in conjunction with the CCRA.
[59] In particular, I observe that s.119(1)(c) requires all federal offenders to serve a minimum of six months in custody after being sentenced before being eligible for day parole. I take from this that Parliament has chosen to ensure that all offenders, post sentencing, have access to the sorts of programs and treatment that are often not available when they are in remand facilities. It has also chosen to ensure that a proper risk assessment may take place by the Parole Board before an offender may be released on parole. I accept the Crown’s position that Parliament’s concerns about public safety and the reintegration into society of offenders is a proper justification for this legislation, and is certainly a justification recognized by the Supreme Court of Canada in Summers.
[60] A similar justification supports the different effect on the timing for parole eligibility between those detained pending trial and those released. As I have noted already, Parliament is presumed to have known that the effect of the TISA was to lengthen the time offenders denied bail would serve in custody prior to being eligible for parole. This delay is not arbitrary when it is viewed in light of the important objectives of ensuring that, before offenders are considered for parole, they are able to partake in post-sentencing programs and appropriate risk assessments may be completed.
[61] I do not accept Ms. Passera’s position that the effect of the impugned legislation is arbitrary.
Gross disproportionality
[62] Proportionality in the sentencing process is not a principle of fundamental justice (Safarzadeh-Markhali at para. 21). I have considered the issue of whether the legislation at issue gives rise to a situation that is grossly disproportionate in my s. 12 analysis, and conclude that the effect of the impugned legislation is not to create a grossly disproportionate sentence.
Conclusion on s. 7
[63] In my view, the impugned sections of the Criminal Code do not deprive life, liberty or security of the person in a manner inconsistent with the principles of fundamental justice.
[64] Ms. Passera suggests that the British, Australian and New Zealand models, which she says “deem” offenders to be serving sentences for any period served in custody, are fairer. At one point during her submissions, she invited me to rely on the legislation from these other jurisdictions and to re-write s. 719(1) in a similar manner.
[65] In my view, Parliament has enacted a clear, coherent, comprehensive regime that does not violate s. 7 of the Charter. Any deprivation of life, liberty or security of the person is in accordance with the principles of fundamental justice. In the absence of a finding that there has been a Charter violation, it is not for the court to say whether another legislative regime would be better. That is the role of Parliament. I decline to comment on the various pros and cons of having a sentence run from the date of detention.
[66] I observe, however, that were I to strike down s. 719(1) and declare that sentences run from the date of detention, the ramifications may well be broader than counsel canvassed with me. In fact, given the need to compensate for the qualitative impact of pre-sentence custody, and the ability to credit offenders at a rate of 1.5:1 for this period, one effect might be that those detained in custody pending sentence would serve less time before statutory release than those released. [2] I say this only to point out that the issue, which is one for Parliament, is more complex than Ms. Passera suggests, and the remedy that she suggests creates the fair result has its own challenges and limitations.
[67] Having found no violation of s. 7, I decline to conduct a s. 1 analysis.
iv) Section 12 of the Charter
[68] Section 12 of the Charter provides that everyone has the right not to be subjected to any cruel or unusual punishment. The question is whether the punishment that is to be imposed on Ms. Passera, in her case or when applied to a reasonable hypothetical offender, violates this guarantee. In order to violate s. 12, a sentence must be “grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: R v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 22, R. v. Smith, [1987] 1 S.C.R. 1045.
[69] As I understand the position of Ms. Passera, she takes no issue that a sentence in the R. v. Cunningham (1996), 27 O.R. (3d) 786 (C.A.) range (as set out below) is not grossly disproportionate. Rather, she argues that despite crediting her for pre-sentence custody on a 1.5:1 basis, the amount of time she will have to serve post sentence, when compared to that which she would serve had she been released on bail, makes any punishment imposed on her grossly disproportionate.
[70] An example illustrates her position as I understand it. She says that were I to impose a sentence at the bottom end of the Cunningham range of 6 years (2191 days), and then to credit her for the time she has now spent in custody (992 days) at a rate of 1.5:1 (1488 days), her sentence would be 703 days. She says that she will be required to serve a minimum of one third of this, or 234 days more, before being eligible for parole. In total, therefore, she will serve the 992 plus 234 or 1226 days before being parole eligible. This is three years and 131 days.
[71] By comparison, she says that had she been released in custody following her arrest, and subsequently sentenced to six years, she would have served a minimum of two years before being eligible for release on parole. She says that the additional one year and 131 days makes her sentence grossly disproportionate.
[72] Of course, when a comparison is done with the time that Ms. Passera would serve in custody before having served two thirds of her sentence, the result is interesting. If Ms. Passera were to serve two thirds of the remaining 703 days, she would serve an additional 469 days and a total of 1460 days. This would be four years. By comparison, had she been released from custody, and then had to serve two thirds of a six year sentence, she would have to serve four years, or the identical amount of time.
[73] While she may be a good candidate for parole, I note that no offender is guaranteed parole at the one third mark of his or her sentence. That is, of course, a matter for the Parole Board. All the one third time means is that an offender may apply for parole.
[74] I accept that the effect of s. 719(3.1) and s. 719(1) is that there will be a difference in the amount of time that will be served in custody prior to parole eligibility between an offender who is released pending trial and an offender who is not. In Schedule “C” to her factum, counsel for Ms. Passera sets out the different lengths of time before being parole eligible and suggests that the longer the period of pre-trial custody, the bigger the discrepancy becomes between the time before parole eligibility for the offender who is released and the offender who is detained.
[75] For instance, for a six year sentence, an offender detained for six months before sentencing would have to serve 27 months before being parole eligible. An offender who is released would only have to spend 24 months. I did not understand counsel to suggest that the three months of difference would amount to a grossly disproportionate sentence.
[76] However, after an offender facing a six year sentence was detained for 24 months before sentence, he or she would have to serve 36 months total before being eligible for full parole. By contrast, the offender who is released would have to serve only 24 months before being parole eligible.
[77] The Supreme Court of Canada has set a “high bar” for what constitutes cruel and unusual punishment. All of the s. 12 jurisprudence that counsel have referred to arise in the context of challenges to mandatory minimum sentences.
[78] The Supreme Court of Canada has not been entirely clear about whether or not time spent in custody before sentencing is properly considered “punishment” for the purposes of a s. 12 argument.
[79] There are passages in the jurisprudence that would suggest that pre-sentence custody is deemed to be punishment following conviction. As Arbour J. observed in R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 41:
… while pre-trial detention is not intended as punishment when it is imposed, it is, in effect, deemed part of the punishment following the offender’s conviction, by operation of s. 719(3). The effect of deeming such detention punishment is not unlike the determination, discussed earlier in these reasons, that time spent lawfully at large while on parole is considered nonetheless a continuation of the offender’s sentence of incarceration.
[80] Similarly, the Supreme Court of Canada said at para. 20 of its decision in Zinck that the granting of full parole does not amount to a reduction in sentence. An offender who is granted parole is still serving his or her sentence. The Court also said that the parole process is generally one that falls outside of the function of the sentencing court.
[81] Further, I note that in Whaling v. Canada (Attorney General), 2014 SCC 20, [2014] 1 S.C.R. 392, Wagner J. said the following at para. 57:
Generally speaking, offenders have constitutionally protected expectations as to the duration, but not the conditions, of their sentences. Various changes in the management of an offender’s parole are not punitive, even though they may engage the offender’s liberty interest by marginally increasing the likelihood of additional incarceration…
[82] Assuming, for the sake of argument, that a delay in parole eligibility for an offender detained pending sentencing, as compared to an offender released pending sentencing, is punishment that is amenable to a s. 12 analysis, I cannot conclude that the fact that Ms. Passera will spend longer in custody before being parole eligible results in the imposition of a sentence that is grossly disproportionate and in violation of s. 12 of the Charter. Whatever discrepancy results from the manner in which parole eligibility is calculated does not, in my view, lead to the imposition of a sentence for a detained offender that is so excessive as to outrage standards of decency and be “abhorrent or intolerable” to society. It is noteworthy that what is being considered is eligibility for parole, and not necessarily release on parole.
[83] It is significant, as well, that in all of the examples provided, there is perfect parity created between detained and released offenders at the two-thirds time. When offenders are released from custody on parole, they continue to serve the sentences that have been imposed, albeit under different conditions.
[84] I accept that Ms. Passera, who has been detained since her arrest, will serve a longer period of time prior to being parole eligible than had she been released. This results from a number of factors, including the statutory regime, the length of time that it took for this case to get to trial, and from delay that is completely of her making.
[85] In terms of delay that she has caused, it cannot be forgotten that had Ms. Passera received a six year sentence on November 1, 2016, the date scheduled for the imposition of sentence prior to her constitutional challenge, she would have been credited for the 800 days of pre-sentence custody, and received credit of 1200 days. This would have been deducted from the six years (2191 days) and resulted in 991 days remaining. She would have had to serve one third of this (a 330 further days) before being parole eligible. In other words, she would have served 1130 days in total before being parole eligible. As set out above at paragraph 70, were she to receive the same sentence today, she will have to serve 1226 days before being parole eligible. This analysis demonstrates that her decision to delay her sentencing will have resulted in her serving an extra 96 days before being parole eligible.
[86] This example highlights the fact that there are a number of factors in play that affect how much time is served in custody post sentencing before an offender is parole eligible. It used to be that delays by an offender in being sentenced resulted in overcompensation for custody. The scheme created by Parliament through the TISA creates perfect parity for statutory release. While the parity for parole eligibility is not perfect, I cannot find that this results in a grossly disproportionate sentence for Ms. Passera or the reasonable hypothetical offender.
C. The Appropriate Sentence
[87] Having dismissed the constitutional argument, I turn now to the appropriate sentence to be imposed on Ms. Passera.
i) Facts of the Offence
[88] I will briefly summarize the facts of the offence.
[89] Ms. Passera was arrested at Pearson International Airport on August 24, 2014 upon her return flight from a one-week trip to St. Lucia. Concealed in her suitcase was 1,994 grams of cocaine. It was 79 percent pure and was worth between $80,000 and $160,000 Canadian, depending on how it was sold.
[90] The only issue for the jury was whether Ms. Passera knew that there was cocaine concealed in her luggage. She testified that she did not know and offered an explanation as to how the cocaine could have been concealed by the cousin of her boyfriend/pimp, a person she testified had access to her hotel room in St Lucia.
[91] Implicit in the jury’s verdict is that they rejected Ms. Passera’s evidence as to her knowledge of the concealed cocaine.
[92] I do not need to make a finding as to how the cocaine ended up being concealed in Ms. Passera’s suitcase. I accept that Ms. Passera was not the mastermind behind this importation and did not have a leadership role in planning the importation or procuring of the drugs. I accept that she was not the person who carefully hid the drugs in her suitcase. I have no doubt that there were others involved who, from the manner in which the cocaine was concealed, likely had experience in this sort of activity. Ms. Passera’s role in the importation was that of a willing courier who knew that there were drugs hidden in her suitcase.
ii) Facts Relating to the Offender
[93] Ms. Passera was born on May 6, 1991. She was 23 at the time of the offence. She is now 26 years old.
[94] Ms. Passera testified at trial and provided significant evidence about her background and upbringing. She was raised in Bradford, Ontario. Her parents separated when she was young and she lived with her father, whom she described as emotionally abusive. She was bullied about her weight and was insecure. She moved in with her mother at the age of 16 and graduated from high school. After graduation, she began a message therapy program at Humber College in Toronto, but dropped out when her mother faced significant health challenges.
[95] Following disputes with her mother’s boyfriend, she was effectively kicked out of that home and moved to Toronto. Ms. Passera’s time in Toronto proved challenging.
[96] Initially, she supported herself through Ontario Works. She then obtained a job at Tim Horton’s. She testified about having two relationships in which her boyfriends cheated on her. She moved in and out of Toronto a couple of times, struggling to find employment and supporting herself through Ontario Works. It is clear that she was plagued by a lack of confidence and low self-esteem.
[97] At one point, Ms. Passera resumed a relationship with a boyfriend who had previously cheated on her. She testified that he pressured her into working as a prostitute and that he was her pimp. She said that it was he who organized, with his cousin, for her to go to St. Lucia. There, she expected to both have a vacation and to work as a prostitute.
[98] Since her arrest on August 24, 2014, Ms. Passera has been in custody at Vanier Centre for Women. She has used her time in custody quite productively. I have been provided with numerous certificates and letters about the programs in which she has participated. These include religious programs, programs for survivors of sexual violence, programs for substance abuse, and numerous life skills programs.
[99] In addition, Ms. Passera has taken advantage of the opportunities offered at Vanier for counselling. She engaged in one-on-one therapy between November 2014 and April 2015 in which she sought to address a variety of issues including coping with stress, healthy relationships, expressing her emotions, grief, her romantic relationships, her relationships with her family and the stress of the court proceedings.
[100] When she spoke at the sentencing hearing in September 2016, Ms. Passera expressed that she feels that she has taken advantage of the programs and courses offered at Vanier and has learned skills that will enable her to be a better person. She has reflected on the decisions she has made in the past and feels that, when released, she will be able to resume her education and the relationships with her family members.
[101] I have been provided with character reference letters in support of Ms. Passera. These letters indicate that those who know and love Ms. Passera acknowledge that she made a terrible decision, but suggest that she has worked hard on her own rehabilitation while in custody and that she is sorry for what she has done. It is clear to me that she will have significant support from family and friends when she is released.
[102] I did not hear from Ms. Passera herself any acknowledgement of error on her part, or any expression that she was sorry for what she was done. While there is no doubt that she has worked hard on her own rehabilitation, I have not heard from her an indication that she appreciates the serious nature of her offence or the harm that it causes to the community.
iii) Impact on the Victim and/or Community
[103] Little needs to be said about the terrible impact of drug importation on the victims who use the drugs and on the communities into which drugs are imported and then distributed.
iv) The Relevant Legal Principles
[104] Pursuant to s. 6(3)(a.1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, the offence carries a mandatory minimum sentence of two years.
[105] Section 718 of the Criminal Code sets out the following purpose and objectives of sentencing:
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[106] Further, s. 718.1 of the Criminal Code provides that:
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[107] Section 10 of the Controlled Drugs and Substances Act provides the following with respect to the purpose of sentencing:
10 (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
[108] The Court of Appeal has set a range of six to eight years in the penitentiary as the appropriate sentence for first time couriers who import multiple kilograms of cocaine into Canada for personal gain: R v. Cunningham at paras. 19-20. This range has been affirmed multiple times including, most recently, in R. v. Jackman, 2016 ONCA 121, 334 C.C.C. (3d) 340 at paras. 55-56.
[109] It is clear from the Court of Appeal’s comments in R. v. Cunningham and R. v. Hamilton (2004), 186 C.C.C. (3d) 129 (Ont. C.A.) that the common or usual mitigating factors do not permit a court to impose a sentence below the usual range. Most drug couriers are in difficult circumstances and are somewhat sympathetic. In order to justify the imposition of a sentence below the usual range, however, there must be “exceptional or extenuating circumstances”: R. v. A.B. (2004), 27 C.R. (6th) 178 (Ont.S.Ct.) at paras. 20-21.
v) The Positions of the Parties on Sentence
[110] The Crown seeks a sentence of six and a half year, less credit for pre-sentence custody. In addition, he seeks ancillary orders including a weapons prohibition, a forfeiture order and a DNA order. He acknowledges that Ms. Passera should be credited for pre-sentence custody at a rate of 1.5:1. He also says that she should receive three months credit for the period of time spent in pre-sentence lock-down at Vanier.
[111] The defence seeks a sentence of five years less credit for pre-sentence custody, credited on a 1.5:1 basis. It is the defence position that the mitigating circumstances in this case warrant a reduction of sentence below the usual six to eight year range. The defence relies, in particular, on the fact that Ms. Passera has been on “lock-down” in Vanier for considerable periods of her time in custody. The defence concedes that the ancillary orders that are sought should be granted.
vi) Analysis
How does the lock-down affect the sentence to be imposed?
[112] Ms. Passera has provided an affidavit in which she sets out the period for which she has been under lock-down while at Vanier. I understand her affidavit evidence to set out the number of hours of time that she was required to spend in her cell that go beyond the number of hours set out in the rules for her unit. For instance, she says that the rules provide that inmates are to be out of their cells between 7:30 and 11:30 a.m. They are to be in their cells from 11:30 a.m. to 1:30 p.m. for lunch and are to be out between 1:30 and 4:30 p.m. They then return to their cells from 4:30 to 6:00 p.m. and are to be out between 6:00 and 9:00 p.m. These rules were posted in her unit.
[113] Ms. Passera says that between August 2014 and December 2015, these rules were not followed. Routinely, she says that inmates were kept in their cells for an extra half hour at lunch (until 2:00 pm), for an extra hour and a half over dinner (from 4:00 to 7:00 p.m.) and were locked up at night half an hour early (at 8:30 p.m.). She says that this resulted, regularly, in an extra three hours of daily lock-down.
[114] In addition, Ms. Passera kept a journal of lock-down times. She recorded these in the first column of the chart that was entered as Exhibit 2 on sentencing. In that chart, as I understand the position of the defence, the total number of hours of lock-down are calculated using the three hours of usual extra time in cells between August 24, 2014 and December 31, 2015 and the additional lock-down time calculated from Ms. Passera’s journal.
[115] On September 21, 2016, her affidavit evidence was that she had been on lock-down for a total of 1,484 hours. This was said to amount to 148.44 days. Ms. Passera initially sought credit on a 2:1 basis for this time and so sought a reduction in sentence of 296 days.
[116] When she returned before me on April 1, 2017, a new affidavit suggests that she has been on lock-down for 184 additional hours between, September 21, 2016 and April 1, 2017. The total number of lock-down hours, therefore, is 1668. As I understand Ms. Passera’s position, she would say that the total lock-down time amounts to 167 days and that she should be credited at a rate of 2:1. With the additional time since then, she seeks credit of 334 days, just short of a year.
[117] On the sentencing hearing, Marianne Mueller, the Deputy Supervisor of Programs at Vanier, testified. She testified that lock-downs are usually as a result of staffing issues.
[118] I understand that the Crown accepts the Lockdown Hours Chart prepared by the defence from Ms. Passera’s affidavit evidence.
[119] Section 718.2 (a) of the Criminal Code provides that a sentence may be reduced to account for any mitigating circumstance.
[120] I accept that over the period of time that she has been in custody, Ms. Passera has been confined in her cell for significantly longer periods than the rules of the unit set out. I also accept that the reason for these additional periods of confinement in her cell have been due to staff shortages in the facility.
[121] The phrase “lock-down” must be used with some care. “Lock-down” can mean different things in different situations. In this case, Ms. Passera uses it to refer to any period of time in which she was confined to her cell when the rules of the unit suggested that she should have been permitted out of her cell. This is a very different use of the term than in some of the other cases in which credit for lock-down has been considered.
[122] In R. v. Doyle, 2015 ONCJ 492, [2016] O.J. No 4543, Green J. considered whether to reduce an offender’s sentence for what he viewed as “harsh treatment” in pre-sentence custody. The offender spent eleven months in pre-sentence custody. For at least 70 of these days, and likely more than that, he was under lock-down for 24 hours a day. This lock-down meant that the accused was confined to his cell for 24 hours a day with brief exceptions (not always respected) for showers and visits (limited to 20 minutes twice a week). In those circumstances, Justice Green found the circumstances of the detention harsh and credited the offender with 1.5 days for each day of his pre-sentencing custody.
[123] The issue of credit for lock-down was also considered Justice O’Marra in R. v. Bedward, 2016 ONSC 939, [2016] O.J. No. 855. In that case, the evidence before O’Marra J. was that the offender had been in lock-down for 225 days, although he agreed that some of those had been less than full days. A sergeant from the detention centre at which the offender had spent his pre-sentencing custody testified that he had been under lock-down for 128 days. During those periods of lock-down, prisoners were permitted to be outside of their cells for no more than 20 minutes per day. They were permitted showers only once every three days. Family visits were not accommodated. Prisoners were deprived of amenities. Programs may have been interrupted.
[124] In considering the impact of this lockdown, O’Marra J. held, at paras. 22:
The fact that an inmate has experienced lockdowns certainly does not lead automatically to any additional mitigation of their ultimate sentence. However, a prolonged lockdown that is unrelated to the misconduct of the accused before the court may constitute harsh conditions that merit some mitigation of sentence. A lockdown is not the norm within the institution and it should not be viewed as such. When a lockdown occurs, the inmate is cut off from contact with the outside world, including family, friends and counsel.
[125] He concluded that the offender should be awarded credit of three months for the lock-down periods.
[126] In R. v. Shah, 2016 ONSC 2651, [2016] O.J. No. 2179, Quigley J. considered the offender’s argument that his sentence should be reduced to account for harsh conditions in custody pre-trial. He spent 190 days under lock-down due to staff shortages or labour disputes. Quigley J. observed that the offender was deprived of exercise time and exposure to sunlight and was “effectively kept in his cell without relief”. After reviewing the decisions in Doyle and Bedward, Quigley J. granted the offender an additional 30 days of credit for the lock-down circumstances.
[127] In R. v. DeSousa, 2016 ONSC 5493, [2016] O.J. No. 4543, Gilmore J. considered the offender’s request for credit for lock-down hours. In that case, the evidence was that inmates were normally released from their cells for eight hours per day. She characterized lock-down time as a deprivation of this eight hour period or some part of it. When a unit is in lock-down, prisoners may lose access to phones and showers and may lose yard time. There were two reports respecting the offender’s lock-down times. The defence position was that in the first period, there had been 1490 hours of lock-down which, when divided by eight hours per day, was said to amount to six months of lock-down. In the second period, there were an additional three months of credit. In total, the defence sought credit of nine months for these two periods. The Crown position was that the credit should be about 60 days.
[128] After reviewing the decisions in Doyle, Bedward and Shah, Gilmore J. concluded that lock-downs should not be considered the norm while a person is in custody. She held, at para. 68, that simply converting the number of lock-down hours into days of credit is not a reasonable way of determining credit. She credited the accused with 90 days for the lock-down.
[129] During the first period of her incarceration, from August 24, 2014 until early December 2015, Ms. Passera’s evidence is that she should have been out of her cell for ten hours per day. Her evidence is that she was deprived of at least three of these hours every day, and on a number of days, she lost additional time. There appear to be only a couple of days of full, ten-hour lock-down.
[130] In the period after early December 2015 until 2017, there continued to be days on which there was some deprivation of the time out of her cell. Of these, there are nine days on which she claims to have had a full ten hours of lock-down. The balance are losses of something between an hour and a few hours.
[131] I fully agree with those who have stated before that lock-downs should not be the norm while one is in custody. When a facility has rules about what time prisoners are permitted to be out of their cells, those rules should be the norm, and not the exception. Staff shortages cannot, in my view, justify prolonged periods of regular lock-down. When they do, I accept that the conditions of incarceration may become so harsh as to justify giving credit for these periods to an offender detained under those conditions.
[132] I agree with Gilmore J. that it is not possible to simply take the number of lock-down hours and convert them to days to determine credit to an offender. There is, in my view, a qualitative difference between the harshness of regular periods of 24 hour lock-down and the effect of a deprivation of an hour or two out of one’s cell, particularly if there is no evidence that this sort of short deprivation of time results in any loss of outside or exercise time, or any loss of visits or programming. However, I agree that regular deprivation of even a few hours of time out of a cell may, over a prolonged period, also become harsh.
[133] I accept that in this case, Ms. Passera has suffered some harshness in her conditions of incarceration. She has certainly not had the hours out of her cell that the rules of her unit would suggest she should have had. She says that this has been difficult for her.
[134] I accept the Crown’s position that there should be credit to Ms. Passera of three months for the effects of the lock-down and will reduce her sentence accordingly.
Aggravating and Mitigating Factors
[135] There is little to say about the aggravating factors present other than that this was the importation of almost two kilograms of cocaine into Canada. I find that Ms. Passera, like most of those who import drugs, was motivated by greed.
[136] I find the following mitigating factors:
- Ms. Passera was relatively young when she committed this offence;
- Ms. Passera is a first offender;
- Ms. Passera was not the mastermind behind this importation. Her role was as a willing courier;
- While in custody, Ms. Passera has taken meaningful and significant steps towards her own rehabilitation by availing herself of the many programs offered at Vanier and choosing to engage in personal therapy;
- Ms. Passera has a supportive circle of friends and family.
Sentence to be Imposed
[137] Ms. Passera is entitled to credit on a 1.5:1 basis for the time that she has spent in custody. She was arrested on August 24, 2014. As of May 11, 2017, she has served 992 days. She is entitled to credit for this of 1488 days, which is to be deducted from the sentence to be imposed. She should also receive some credit for the period of time she has been in lock-down. As I have indicated, I credit her three months, or 90 days, for this time.
[138] In my view, a fit sentence in all of the circumstances is six years. This is at the low end of the Cunningham range, which I think is appropriate for Ms. Passera, given all of the circumstances, including the aggravating and mitigating factors present in this case. Six years is 2191 days. Once the pre-sentence custody is credited, this leaves a sentence of 720 days. With the lock-down credit, the sentence that remains is 613 days. This is one year and 265 days. That is the sentence imposed today.
Ancillary Orders
[139] The Crown seeks a DNA order, a forfeiture order, a s. 109 order and a victim fine surcharge.
[140] I make the following ancillary orders:
- A forfeiture order of the cocaine under s. 16(1)(a) of the Controlled Drugs and Substances Act;
- A D.N.A. order under s. 487.051 of the Criminal Code;
- A s. 109(2)(a) firearms order for ten years and a s. 109(2)(b) for life;
- A victim fine surcharge order.
[141] I wish to thank counsel for their assistance in this case.
Woollcombe J.
Released: May 11, 2017
COURT FILE NO.: 1304/15 DATE: 2017 05 11
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Deanna Passera REASONS FOR JUDGMENT Woollcombe J.
Released: May 11, 2017
[1] For instance, consider two offenders each sentenced to six years in custody two years after arrest. The first, released pending trial, would have to serve two years before being parole eligible, and four years before statutory release. The second, detained pending trial and credited 2:1 for this time, would be credited for four years, thereby reducing his sentence to two years. He would be parole eligible after serving a total of 2 years and 243 days (more than the offender released pending trial), but would serve a total of only 3 years and 122 days (less than the offender who was released pending trial) before statutory release.