Court File No.: 35339
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR ONT ARlO)
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
-and-
SEAN SUMMERS
Respondent
-and-
CRIMINAL LAWYERS ASSOCIATION OF ONTARIO and
BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION
Interveners
APPELLANT'S FACTUM
ATTORNEY GENERAL OF ONTARIO
Crown Law Office - Criminal
720 Bay Street, I O'h Floor
Toronto, Ontario M7 A 2S9
BURKE-ROBERTSON, LLP
441 MacLaren Street
Suite 200
Ottawa, Ontario K2P 2H3
Gregory J. Tweney
Molly Flanagan
Tel.: (416) 327-8216
Fax: (416) 326-4656
Email: [email protected]
Robert E. Houston, Q.C.
Tel.: (613) 236-9665
Fax: (613) 235-4430
Email: [email protected]
Counsel for the Appellant
Ottawa Agent for the Appellant
FLEMING, BREEN
Barristers and Solicitors
370 Bloor Street East
Toronto, Ontario M4W 3M6
SHANBAUM SEMANYK PROFESSIONAL
CORPORATION
150 Isabella Street, Suite 305
Ottawa, Ontario K IS I V7
Timothy Breen
Tel.: (416) 927-9000
Fax: (416) 927-9069
Email: [email protected]
Terry Semanyk
Tel.: (613) 238-6069
Fax: (613) 238-9916
Email: tsemanyk@sspclaw .ca
Counsel for the Respondent
Ottawa Agent for the Respondent
RUSSELL SILVERSTEIN & ASSOCIATE
100-116 Simcoe Street
Toronto, Ontario M5H 4E2
GOWLING LAFLEUR HENDERSON LLP
2600 - 160 Elgin Street
Ottawa, Ontario KIP 1C3
Russell Silverstein
Ingrid Grant
Tel: (416) 977-5334
Fax: (416) 596-2597
Email: russell@si lverstein-law .com
Ed Van Bemmel
Tel: (613) 786-0212
Fax: (613) 788-3500
Email: ed. vanbeemel@gow lings. com
Counsel for the Intervener,
Criminal Lawyers Association of Ontario
Ottawa Agent for the Intervener,
Criminal Lawyers' Association of Ontario
BULL, HOUSSER & TUPPER LLP
3000-1055 West Georgia Street
Vancouver, B.C. V6E 3R3
GOWLING LAFLEUR HENDERSON LLP
2600 - 160 Elgin Street
Ottawa, Ontario K 1P 1C3
Ryan D.W. Dalziel
Tel: (604) 641-4881
Fax: (604) 646-26-7I
Email: [email protected]
Brian A. Crane, Q.C.
Tel: (613) 233-I781
Fax: (613) 563-9869
Email: [email protected]
Counsel for the Intervener,
British Columbia Civil Liberties Association
Ottawa Agent for the Intervener,
British Columbia Civil Liberties Association
Court File No.: 35339
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR ONT ARlO)
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
-and-
SEAN SUMMERS
Respondent
-and-
CRIMINAL LAWYERS ASSOCIATION OF ONTARIO and
BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION
Interveners
APPELLANT'S FACTUM
TABLE OF CONTENTS
PART I: STATEMENT OF FACTS
A.
Overview ........................................................ 1
B.
Facts Relating to the Offence ......................................... 3
C.
The Respondent's Pre-Sentence Custody ............................... 5
D.
The Sentencing Hearing and Reasons for Judgment ....................... 6
PART II: QUESTION IN ISSUE .... . . ........ . ... .. .. . .................... . ..... 8
PART III: ARGUMENT
A.
Overview of the Appellant's Position .................................. 9
B.
Credit for Pre-Sentence Custody at Common Law ........................ 9
C.
Changes Introduced by the Truth in Sentencing Act ...................... 11
D.
Early Judicial Reaction to the Truth in Sentencing Act .................... 15
E.
The Trial Judge's Decision ......................................... 17
F.
The Decision of the Court of Appeal for Ontario ........................ 18
G.
The Correct Interpretation ofs. 719(3.1) ofthe Criminal Code
H.
I.
(i)
Principles of Statutory Interpretation ............................ 20
(ii)
The Structure ofs. 719 ofthe Criminal Code ..................... 21
(iii)
Circumstances That Will Justify Granting Enhanced Credit .......... 24
Additional Errors in the Ontario Court of Appeal's Analysis ............... 26
(i)
The Sentencing Principles of Proportionality and Parity
Do Not Apply .............................................. 27
(ii)
The Effects ofRemission and Parole are Irrelevant at Sentencing ..... 32
The Principles Applied to the Respondent's Circumstances ................ 34
PART IV: SUBMISSIONS AS TO COSTS ........................................ 36
PART V: ORDER REQUESTED ............................................... 36
PART VI: TABLE OF AUTHORITIES ........................................... 37
PART VII: STATUTORY PROVISIONS .......................................... 40
- II -
Court File No.: 35339
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR ONT ARlO)
BETWEEN :
HER MAJESTY THE QUEEN
Appellant
-and-
SEAN SUMMERS
Respondent
-and-
CRIMINAL LA WYERS ASSOCIATION OF ONTARIO and
BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION
Interveners
APPELLANT'S FACTUM
PART I: STATEMENT OF FACTS
A.
Overview
1.
The respondent was charged with manslaughter in connection with the shaking death of his
infant daughter. On May 30,2011, after spending 10.5 months in pre-trial custody, the respondent
pleaded guilty to the offence before Mr. Justice C.S. Glithero of the Ontario Superior Court of
Justice. At the sentencing hearing that followed, the parties agreed on the appropriate range of
sentence (8-1 0 years in jail). The only remaining issue was how much credit should be given for the
time the respondent spent in pre-sentence custody.
-22.
Recent amendments to the Criminal Code now limit credit for pre-sentence custody to a ratio
of 1:1 unless "the circumstances justify" granting enhanced credit, up to a maximum ratio of 1.5: 1.
In brief reasons for sentence, Justice Glithero accepted the defence position that the unavailability
of earned remission or parole for time spent in pre-sentence custody was a "circumstance" that
justified granting enhanced credit at a ratio of 1.5: 1. He therefore reduced the sentence by 16
months, resulting in a further sentence of 80 months (i.e. 6 years and 8 months) in jail.
3.
The Crown appealed the sentence to the Court of Appeal for Ontario on the sole issue ofthe
the trial judge's interpretation ofthe news. 719(3.1) of the Criminal Code. Specifically, the Crown
argued that the trial judge erred by finding that the unavailability of earned remission or parole to
those in remand custody was a "circumstance" that could justify granting enhanced credit for presentence custody under s. 719(3.1) of the Code. The Crown argued that, in the absence of
circumstances unique to the respondent, credit for the respondent's remand custody ought to have
been limited to the new statutory maximum rate of 1:1, resulting in a sentence of85.5 months in jail.
4.
In lengthy reasons released on March 12, 2013, the Court of Appeal rejected the Crown's
proposed interpretation of s. 719(3 .1) ofthe Criminal Code, finding that the unavailability of earned
remission or parole during remand custody was a "circumstance" that could justify granting credit
at the new maximum enhanced rate of 1.5:1, as long as there is information before the sentencing
judge" ... to support the conclusion that this factor merits enhanced credit for a particular offender
in a given case." In the result, the Crown's appeal was dismissed.
5.
On August 15, 2013, the Attorney General for Ontario was granted leave to appeal the Court
of Appeal's decision, and the appeal was directed to be heard together with the appeal by the
Attorney General of Canada in R. v. Carvery (File No. 35115). The sole issue in these appeals is
whether a lack of earned remission, on its own, can justify granting enhanced credit for pre-sentence
custody under the new s. 719(3 .1) of the Criminal Code. It is the Attorney General's position that
the answer to this question is "no", and that to find otherwise is not only contrary to the plain
meaning of the section, it defeats the will of Parliament by making the enhanced rate available to a
-3much broader population of sentenced offenders than was intended. It is further submitted that the
Court of Appeal's interpretative analysis was based, in part, on a flawed application ofthe sentencing
principles of proportionality and parity. Finally, the approach recommended by the Court of Appeal
for determining whether or not an offender is eligible for enhanced credit for pre-sentence custody
is inconsistent with established principles relating to the relevance ofthe likelihood of future parole
eligibility to the determination of a fit sentence.
6.
It is respectfully submitted that the types of "circumstances" that may give rise to granting
enhanced credit for pre-sentence custody are those which are particular to the individual offender,
not those of nearly universal application. No such circumstances existed in the case at bar and the
sentence imposed on the respondent should therefore be adjusted by restricting the credit granted for
his pre-sentence custody to the maximum rate permitted by s. 719(3) of the Criminal Code.
B.
Facts Relating to the Offence
7.
The respondent and his girlfriend, Kaitlyn Ingram, began dating as teenagers. Together, they
had a child named Kayleigh. She was born in March 2010, when the respondent was 19 years old
and Kaitlyn was 18 years old. The couple stopped dating a couple of months after Kayleigh was
born but they shared custody of their daughter. By that time, Kaitlyn lived with her parents and the
respondent lived on his own in a basement apartment.
Guilty Plea Proceedings, Appellant's Record, pp. 109-110
8.
In June 2010, when Kayleigh was just three months old, her grandfather noticed several
bruises after she returned from being in the respondent's care. She was also lethargic and didn't
want to be placed on her back. Family and Children's Services became involved two days later and
observed bruising on Kayleigh' s chin, forehead and eyebrow. The respondent acknowledged having
caused these injuries. In a subsequent meeting with Family and Children's Services, Kayleigh's
grandparents expressed concerned about her safety while she was in the respondent's care, and the
respondent expressed concern about his ability to parent in times of stress. He therefore requested
-4that a third party be present whenever Kayleigh was with him. Kaitlyn, the child's mother, agreed
to act as the third party during those visits.
Guilty Plea Proceedings, Appellant's Record, pp. 111-113
9.
On July 6, 2010, Kayleigh was seen by her pediatrician for her four month check-up.
Everything appeared to be normal.
Guilty Plea Proceedings, Appellant's Record, p. 114
10.
On July 9, 2010, Kayleigh was left with the respondent for the day. He was upset that he had
to look after Kayleigh, as he and Kaitlyn had argued the night before. Indeed, that morning, the
respondent told Kaitlyn he did not want to care for Kayleigh that day, but Kaitlyn and her father
brought the child over to the respondent's apartment anyway. Over the course of the day, the
respondent sent several angry and threatening text messages to Kaitlyn. At some point during the
day, the respondent violently shook Kayleigh, causing severe head injuries. He did not seek medical
attention for Kayleigh at any time. When the child's mother and grandfather arrived at the end of
the day to pick her up, she was pale and lethargic. She had difficulty breathing and could not support
her own head. She was immediately rushed to the hospital. Doctors there determined that Kayleigh
had severe head injuries and immediately arranged for her to be transported to McMaster University
Hospital in Hamilton.
Guilty Plea Proceedings, Appellant's Record, pp. 114-116
11.
When Kayleigh arrived in Hamilton, doctors determined she had a "devastating head injury
consisting of diffuse axonal injury, subdural hemorrhages, severe cerebral edema and retinal
hemorrhages". These findings are consistent with an acceleration/deceleration injury or abusive head
trauma. Soon after her arrival in Hamilton, Kayleigh underwent emergency surgery, and was placed
in intensive care for further treatment.
Guilty Plea Proceedings, Appellant's Record, pp. 116-118
Consultation Report of Dr. Sandra Seigel, Appellant's Record, pp. 153-158
-5-
12.
Kayleigh remained in the Acute Pediatric Critical Care Unit for two and half days, until her
life support systems were removed and she succumbed to the injuries she suffered on July 9, 2010.
A post-morten examination revealed the cause of death to be severe hypoxic/ischaemic
encephalopathy as a consequence of a head injury.
Guilty Plea Proceedings, Appellant's Record, pp. 118-119
Report ofPediatric Post-Mortem Examination, Appellant's Record, p. 159
13.
The respondent was arrested on July 10, 2010. When questioned by police, he admitted
responsibility for the injuries which eventually led to Kayleigh's death. He expressed remorse
shortly after the offence, and again at the sentencing hearing. He has no prior criminal record.
Guilty Plea Proceedings, Appellant's Record, pp. 116 & 119
Sentencing Submissions, Appellant's Record, pp. 123 & 127
C.
The Respondent's Pre-Sentence Custody
14.
The respondent was initially charged with second degree murder in connection with
Kayleigh' s death. He was also charged with two counts of assault, one relating to Kayleigh and one
relating to Kaitlyn. A judicial pre-trial was held on October 29, 2010. Disclosure was not completed
until December 2010, as the parties awaited the completion of the post-mortem report.
On
December 15,2010, a focus hearing was scheduled for March 8, 2011, with dates in April and May
marked for a preliminary inquiry.
Information sworn July 16, 2010,Appellant's Record, pp. 76-78
15.
On April8, 2011, a new information was sworn, charging the respondent with manslaughter
in connection with Kayleigh's death. On April13, 2011, the original information was withdrawn
and the respondent consented to committal for trial in the Superior Court.
Information sworn July 16, 2010, Appellant's Record, pp. 76-79
Information sworn April 8, 2011, Appellant's Record, p. 81
-6-
16.
On April 29, 2011, a judicial pre-trial was conducted before the Honourable Mr. Justice C.S.
Glithero of the Superior Court of Justice, following which the matter was adjourned to May 30, 2011
for a guilty plea and sentencing.
Indictment, Appellant's Record, pp. 86-88
17.
The respondent remained in custody from the time of his arrest on July 10, 2010 until the
time of his plea and sentencing hearing on May 30, 2011, a period of approximately 10.5 months.
No complaints were raised about the respondent's remand conditions, but while in custody the
respondent was prescribed medication for anxiety and depression
Guilty Plea Proceedings, Appellant's Record, p. 119
Sentencing Submissions, Appellant's Record, pp. 126 & 136
D.
The Sentencing Hearing and Reasons for Judgment
18.
The parties agreed that, in the circumstances ofthis case, the appropriate range of sentence
was between 8-10 years in jail. Defence counsel invited the judge to impose 8 years and the Crown
sought a sentence of 10 years. The parties disagreed, however, on the amount of credit that should
be granted for the respondent's pre-sentence custody. Defence counsel argued that the unav ai lab iii ty
of earned remission for time spent in remand was a circumstance that justified granting enhanced
credit of 1.5: 1. The Crown's submissions on the issue of credit for pre-sentence custody were more
vague. The Crown suggested that enhanced credit might be justified for the four month period
between the respondent's arrest and the disclosure of the post-mortem report, but pointed out that
the respondent had not been subject to harsh remand conditions. Ultimately, the Crown left the issue
of credit for pre-sentence custody to the court, in the exercise of its discretion.
Submissions of Counsel, Appellant's Record, pp. 127, 129-132, 135-138 & 147
19.
In the end, the trial judge determined the appropriate sentence in this case was 8 years in jail,
less credit for pre-sentence custody. On the subject of credit for pre-sentence custody, he found that
the lack of earned remission for those on remand was a legitimate basis for granting enhanced credit,
and applied the maximum credit ratio permitted by s. 719(3.1) ofthe Code. The respondent's 8 year
sentence (i.e. 96 months) was therefore reduced by 16 months, for a total sentence of 6 years and
-7eight months (ie. 80 months) in jail. The judge also imposed a 10 year firearms prohibition and
ordered the respondent to provide a DNA sample.
Reasons for Sentence, Appellant's Record, pp. 71-74
Weapons Prohibition Order, Appellant 's Record, pp. 92-93
DNA Order, Appellant's Record, p. 91
-8-
PART II: QUESTION IN ISSUE
20.
The sole point in issue is whether the Ontario Court of Appeal erred in finding that the
unavailability of earned remission or parole to those in remand custody is a "circumstance" that may
justify granting enhanced credit for pre-sentence custody under s. 719(3 .1) of the Criminal Code.
-9-
PART III: ARGUMENT
A.
Overview of the Appellant's Position
21.
The Attorney General of Ontario does not quarrel with the 8 year sentence imposed in this
case. The sole issue in this appeal is whether a lack of earned remission, on its own, can justify
granting enhanced credit for pre-sentence custody under the news. 719(3.1) of the Criminal Code.
It is the Attorney General's position that the answer to this question is "no", and that to find
otherwise is contrary to the plain meaning of the section and defeats the will of Parliament. It is
respectfully submitted that the types of "circumstances" that may give rise to granting enhanced
credit for pre-sentence custody are those which are particular to the individual offender and not those
of nearly universal application. No such circumstances existed in the case at bar. The Attorney
General therefore asks this Court to vary the sentence by re-calculating the credit for pre-trial custody
at the prescribed statutory rate of1: 1, resulting in a sentence of85.5 months (7 years and 1.5 months)
in jail.
B.
Credit for Pre-Sentence Custody at Common Law
22.
For years, the Criminal Code has provided judges with a discretion to take time served in pre-
trial custody into account when determining the appropriate sentence.
Prior to the recent
amendments to s. 719, the provision read as follows:
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.
Criminal Code, R.S.C. 1985, c. C-46, s. 719(3)
23.
At common law, courts consistently held that, absent justification, a sentencingjudge should
usually give some credit for pre-trial and pre-sentence custody. Three reasons were commonly
advanced for giving such credit: ( 1) the typically onerous conditions of remand custody, (2) the
unavailability of rehabilitative programming to those in remand custody, and (3) the fact that time
spent in remand custody is not included in the calculation of remission or parole eligibility. The
-10-
latter two factors received particular emphasis in the following oft-quoted passage from the Ontario
Court of Appeal's decision in R. v. Rezaie:
Although this section is discretionary, not mandatory, in my view a sentencing judge
should ordinarily give credit for pre-trial custody. At least a judge should not deny
credit without good reason. To do so offends one's sense of fairness. Incarceration
at any stage ofthe criminal process is a denial of an accused's liberty. Moreover, in
two respects, pre-trial custody is even more onerous than post-sentencing custody.
First, other than for a sentence of life imprisonment, legislative provisions for
parole eligibility and statutory release do not take into account time spent in
custody before trial (or before sentencing). Second, local detention centres
ordinarily do not provide educational, retraining or rehabilitation programs to an
accused waiting trial. For these reasons, pre-trial custody is commonly referred to
as "dead time", and trial judges, in deciding on an appropriate sentence, frequently
give credit for double the time an accused has served. [emphasis added]
R.
R.
R.
R.
24.
v. Rezaie (1996), I12 C.C.C. (3d) 97 at I04 (Ont. C.A.)
v. MacDonald (1998), I27 C. C. C. (3d) 57 at para. 31 (Ont. C. A.)
v. Wust, [2000] I S.C.R. 455 at 470- I
v. JE.D., [2007] O.J. No. 2022 at para. I (C.A.)
While agreeing that at least some credit should ordinarily be given for time spent in pre-trial
custody, courts uniformly rejected a mathematical formula for determining the amount of credit to
be granted. Nevertheless, as noted in Rezaie, the convention was to give credit at a rate of2:1. In
Wust, this Honourable Court noted that the 2:1 ratio, while obviously not mandatory, was entirely
appropriate since it reflects not only the absence of programs available to the accused, but also" .. .
the fact that none ofthe remission mechanisms contained in the Corrections and Conditional Release
Act apply to that period of detention."
R. v. Wust, supra at 480
25.
In the exercise of their discretion, courts sometimes gave more than double credit for pre-
sentence custody ifthe evidence demonstrated the accused suffered particularly onerous conditions
of incarceration while awaiting trial or sentencing, such as extreme over-crowding or poor conditions
during a civil service strike. In several cases, courts were persuaded to grant credit for pre-trial
custody at an "enhanced" rate of three or four times the number of actual days spent in pre-trial
custody. The growing practice of granting this level of enhanced credit for pre-trial custody led
-11-
Justice Moldaver (then of the Ontario Court of Appeal) to make the following cautionary note in a
case where the trial judge had granted credit for pre-trial custody at a rate slightly less than 3:1:
For my part, I find it disturbing that eighteen months of actual pre-sentence custody can
translate into a credit of four years. It seems to me lately, the issue of of credit for presentence custody is taking on a life of its own. Unchecked, it can skew and even
swallow up the entire sentencing process. In short, it may be time to revisit the manner
in which credit for pre-sentence custody is assessed. However, since the matter was not
raised or argued, it is best left for another day.
R. v.
R. v.
R. v.
R. v.
Kravchov (2002), 4 C.R. (61h) 137 at paras. 10-12 & 49-53 (O.C.J.)
Critton, [2002] O.J. No. 2594 at paras. 87-106 (S.C.J.)
Serniak, [2002] O.J. No. 5160 at paras. 10-34 (S.C.J.)
J.B., [2004] O.J. No. 2559 at footnote 1 (C.A.)
C.
Changes Introduced by the Truth in Sentencing Act
26.
On March 27, 2009, the federal government introduced Bill C-25, called the Truth in
Sentencing Act. It's long title gave greater insight as to its intended purpose: An Act to Amend the
Criminal Code (Limiting Credit For Time Spent in Pre-Sentencing Custody. The Bill was short.
Apart from a few sections dealing with consequential amendments and the scope of its application,
the heart ofthe bill was a single section which replaced s. 719(3) of the Criminal Code with a new
section. For the purpose ofthis appeal, the Bill contained two significant changes. The first was the
addition of a qualifier to the existing section codifying the court's discretion to grant credit for pretrial custody:
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.
Criminal Code, R.S.C. 1985, c. C-46, s. 719(3) [as amended]
27.
The second important change introduced by Bill C-25 was the addition of a new subsection,
described in the marginal notes as an "exception" to the general rule noted above:
Despite subsection (3), if the circumstances justify it, the maximum is one and onehalf 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).
Criminal Code, R.S.C. 1985, c. C-46, s. 719(3.1)
-1228.
When the Bill was introduced in the House of Commons, the Minister of Justice noted that
the Criminal Code already permitted judges to give credit for pre-sentence custody when calculating
the sentence to be imposed. He also noted that the Code did not provide any formula for calculating
this credit, and that courts were routinely granting credit at a rate of two or three days for each day
spent in pre-trial custody. This practice of awarding generous credit, he said, "erodes public
confidence in the integrity of the justice system". The purpose of the amendments, therefore, was
to "limit the credit that a court may grant a convicted criminal for time served in pre-sentence
custody." Under the new provisions, the "general rule" would be a maximum of one day credit for
each day served in pre-sentence custody. Credit may be increased to a rate of one and a half days
for each day "if circumstances justify it", provided that the court provides written justification for
any credit granted beyond the one to one ratio. This would preserve the court's discretion to award
slightly enhanced credit for pre-sentence custody "in appropriate cases".
House of Commons Debates (20 Apri12009) at 1205-1215
29.
During his introductory remarks, the Minister singled out the unavailability of earned
remission or parole during time spent in remand as a factor relied upon by those who defended the
practice of giving generous credit for pre-sentence custody. He noted, however, that "the current
system of presumptive release that currently underpins Canada's approach to corrections" has
recently been critically reviewed and may even face elimination. He then made the following
cautionary statement:
The practice of awarding generous credit for pre-sentence custody cannot rest on the
foundation of a statutory release and parole system that has itself been subject to
strong and impartial criticism and that may be significantly changed in the future.
House of Commons Debates (20 April2009) at 1205-1210
30.
In offering its support for the amendments proposed by Bill C-25, the.official opposition
applauded the balance struck between the sometimes competing goals of improving public
confidence in the sentencing process, ensuring that criminals serve appropriate sentences, while at
the same time maintaining a degree ofjudicial discretion" ... to deal with instances where there could
be egregious circumstances in detention centres or unreasonable delays in coming to trial." The
-13opposition also expressed support for the Minister's remarks about our current system of parole.
While not expressly addressing the issue of credit for pre-sentence custody as compensation for a
lack of earned remission while in remand, the opposition expressed broad support for "modernizing
and reforming the parole system", and encouraged a closer look at the concept of"eamed parole".
House of Commons Debates (20 April2009) at 1230-1240
31.
At hearings before the Standing Committee on Justice and Human Rights, the Minister of
Justice highlighted the new provision ins. 719(3.1) which retains judicial discretion to grant up to
one and a half days credit for each day served in pre-sentence custody "where the circumstances
justify it".
While noting that the "circumstances" were not defined by the Bill, the Minister
expected this enhanced credit would be considered where the conditions of detention were extremely
poor or where the trial was delayed by factors not attributable to the accused. The lack of earned
remission while on remand was not listed by the Minister as one of the circumstances that might
justify the enhanced credit provided for by s. 719(3.1 ).
Standing Committee on Justice and Human Rights ( 6 May 2009) at 1630-1635 & 1650-1700
32.
Despite overwhelming support for the Bill at the time it was introduced, the Bill was not
without its detractors. Renowned criminologist Dr. Anthony Doob, a professor at the University of
Toronto, testified before the Standing Committee that capping credit for pre-sentence custody at one
to one was an arithmetic error, defeating the presumed purpose of ensuring that those who spend
time in pre-sentence custody receive the same sentence as those who do not. Prof. Doob explained
the operation of both provincial and federal corrections legislation and used several examples to
illustrate that the proper ratio to ensure equal treatment was actually 1.5: 1. Limiting credit for presentence custody to a ratio of 1:1, he said, will mean that offenders who serve substantial time in presentence detention will serve longer sentences than those who do not. The same point was made
during Committee hearings by the Criminal Lawyers Association of Ontario.
Standing Committee on Justice and Human Rights (25 May 2009) at 1550-1600
and 1705-1710
-1433.
In response to this criticism, the NDP proposed amending the Bill by increasing the credit
ratio ins. 719(3) to one and half days for each day spent in pre-sentence custody. During debate
on that proposal, David Daubney, General Counsel with the Department of Justice and one of the
drafters of the Bill, acknowledged that a ratio between 1.3:1 and 1.5:1 would have arithmetically
compensated for the loss of remission or parole. Nevertheless, he said, the direction from the
Minister, and from the government generally, was to prepare a Bill based on a ratio of 1:1, with the
possibility of going up to 1.5:1 "if the circumstances justified it". He speculated that courts "trying
to do justice" may find the circumstances justify something between 1:1 and 1.5:1, but said "we'll
have to see how that plays out". In the end, the proposed amendment was defeated in Committee
by a vote ofl 0-1.
Standing Committee on Justice and Human Rights (I June 2009) at I540-I61 0
Standing Committee on Justice and Human Rights (I June 2009), Minutes of Proceedings
34.
The NDP also proposed amending the news. 719(3 .1) by increasing the amount of enhanced
credit to a maximum of two days for each day spent in pre-sentence custody, and by adding examples
of factors that should be taken into account when determining whether enhanced credit should be
awarded, such as "any negative impact on the person as a result of that detention in custody and any
other considerations that the court considers relevant". During debate on this proposal, Mr. Daubney
made the following remarks:
I think, in part, Mr. Comartin, what you're trying to do here is expand upon the words
that we chose to use in drafting the bill: "ifthe circumstances justify". As you know,
the more common expression in the Criminal Code is "in exceptional
circumstances", but we deliberately didn't use that here because the circumstances
won't be that exceptional; they'll be fairly common and, in the case ofthe parole loss
and the remission loss, will be universal."
Mr. Daubney concluded his remarks on this proposal by suggesting the choice oflanguage to be used
ins. 719(3 .1) was "really a policy decision". In the end, this second proposed amendment to the Bill
was also defeated by a vote of 10-1.
Standing Committee on Justice and Human Rights (I June 2009) at I540-I6l 0
-1535.
Bill C-25 was passed by the House of Commons, without amendment, on June 8, 2009 and
referred to the Senate.
Appearing before the Standing Senate Committee on Legal and
Constitutional Affairs, the Minister again stated that the purpose of the Bill was to provide greater
guidance to courts on the subject of credit for pre-trial custody, by limiting the amount of credit for
pre-sentence custody to 1: 1 "in most cases". The Minister noted that the Bill retained the discretion
for courts to grant enhanced credit (up to 1.5:1) "where the circumstances justify it". While he
suggested the exercise of this discretion be considered on a case-by-case basis, he again cited two
examples where courts might consider exercising this discretion: where the offender had suffered
extremely poor remand conditions, or where the trial had been unnecessarily delayed by factors not
attributable to the accused.
Standing Senate Committee on Legal and Constitutional Affairs (17 Sept. 2009) at 13:9
36.
The Senate Committee's Report recommended amending Bill C-25 by increasing the amount
of credit to be granted as a general rule to 1.5:1, and increasing the amount of credit to be granted
"where circumstances justify it" to a maximum of 2:1. Two reasons were cited for this proposed
amendment: to compensate for the lack of earned remission during pre-trial detention, and to account
for the wide variation in remand conditions across the country. In the end, however, this proposed
amendment was rejected by the Senate, by a vote of 44-30.
Debates of the Senate (20 October 2009) at 1510-1520 and 1630-1710
37.
The Truth in Sentencing Act received Royal Assent on October 22, 2009 and was proclaimed
in force on February 22, 2010.
D.
Early Judicial Reaction to the Truth in Sentencing Act
38.
In the first two years after the Truth in Sentencing Act was proclaimed in force, trial courts
across Canada were divided over the interpretation and application of the new provisions relating
to granting credit for pre-sentence custody. Courts were divided over the meaning of the phrase "if
the circumstances justify it" in s. 719(3 .1) and, in particular, whether the lack of earned remission
-16or parole during remand custody was properly a "circumstance" that could justify granting enhanced
credit for pre-sentence custody.
39.
One of the earliest cases was R. v. Johnson, a decision ofthe Ontario Court of Justice. The
offence in that case (trafficking in narcotics) was committed just four days after the Truth in
Sentencing Act came into force. By the time he was sentenced, the offender had spent 12 months
in remand at the Toronto Jail.
At his sentencing hearing, the offender challenged the
constitutionality ofs. 719(3.1) ofthe Criminal Code under ss. 7, 12 and 15 ofthe Charter. In a
lengthy decision, Justice Green dismissed the constitutional challenge, but gave an expansive
interpretation to the phrase "if the circumstances justify it". In his view, Parliament's decision to
limit credit for pre-sentence custody to a ratio of 1: 1 was ill-conceived, since it resulted in longer
effective sentences for those who spent considerable periods of time in pre-sentence custody. He
therefore interpreted s. 719(3 .1) as the vehicle for removing this inequity since, in his view, credit
at a ratio of 1.5:1 more closely approximates the sentence imposed on those offenders who can avail
themselves of earned remission or parole. As he said at para. 172 of his decision:
The constitutionally graceful reading is simply one that recognizes that the loss of
remission is a "circumstance" that justifies eligibility for enhanced credit. The loss
of remission calculation most closely (if not pefectly) translates, as said by Professor
Doob and many others, into a pre-sentence custody credit ratio of 1.5: 1.
R. v. Johnson, [2011] O.J. No. 822 at paras. 160-182 (O.C.J.)
40.
A number of provincial courts across the country (albeit all outside of Ontario) were
persuaded by the reasoning in Johnson and followed Justice Green's lead in finding that the lack of
earned remission or parole in remand custody was, by itself, a "circumstance" that could justify
granting enhanced credit for pre-sentence custody.
R.
R.
R.
R.
R.
v. J.B., [2011] B.C.J. No. 1282 at paras. 7-19 (Prov. Ct.)
v. Dann, [2011] N.S.J. No. 217 at paras. 33-40 (Prov. Ct.)
v. Myers, [2011] N.J. No. 301 at para. 47 (Prov. Ct.)
v. Vittrekwa, [2011] Y.J. No. 76 (Terr. Ct.)
v. Desjarlais, [2012] N.W.T.J. No.3 at para. 17 (Terr. Ct.)
-1741.
Other courts, however, were less persuaded. Indeed, a number of trial courts across the
country (sporadically at the provincial court level and uniformly in the Ontario Superior Court of
Justice) rejected the reasoning in Johnson . Those courts ruled that the lack of earned remission or
parole in remand could not be the sole basis for granting enhanced credit for pre-sentence custody,
since this would result in a presumption in favour of enhanced credit in almost every case.
R. v. Velez-Lau, [2011] O.J. No. 3710 at paras. 29-41 (S.C.J.)
R. v. Morris, [2011] O.J. No. 3995 at paras. 21-56 (S.C.J.), upheld 2013 ONCA 223
R. v. D.A.J., [2011] O.J. No. 4026 at paras. 64-70 (S.C.J.)
R. v. Caceres, [2012] O.J. No. 4421 at paras. 71-80 (S.C.J.)
R. v. Boyd, [2012] O.J. No. 5225 at paras. 7-15 (S.C.J.)
R. v. Prince, [2012] B.C.J. No. 381 at para. 93 (S.C.)
R. v. Abubeker, [2011] O.J. No. 2927 at paras. 10-15 (C.J.)
R. v. Bridgeman, [2011] O.J. No . 1215 at paras. 132-134 (C.J .)
R. v. B.R.S., [2011] O.J. No. 4273 at paras. 12-25 (C.J.)
R. c. Gosselin, 2011 QCCQ 11688 (Crim. & Penal Div.)
R. v. Wheeler, [2011] N.J. No. 391 at paras. 102-121 (Prov. Ct.)
E.
The Trial Judge's Decision
42.
The learned trial judge in the case at bar was persuaded by the reasoning in Johnson. Prior
to the Court of Appeal's decision in this case, his judgment stood alone as the only Superior Court
decision in Ontario to follow the Johnson decision. The portion ofhis reasons for sentence dealing
with the issue of credit for pre-sentence custody dealt almost exclusively with his concern about the
lack of earned remission during remand, and what he saw as the resulting inequality between those
who serve time in remand and those who do not:
I've read not only again this morning but on earlier occasions Justice Green's
decision in R. v. Johnson and it's a decision with which I agree almost totally and I
don't need as many pages to say it. I just say it's absolutely unfair to treat someone
who is presumed to be innocent more harshly than we would treat someone who has
been found to be guilty. So, if we're going to give everybody that's found guilty a
third off or as much as two-thirds off or even more if they're eligible for day parole,
it simply is not fair to say to someone we presume to be innocent, you serve every
day without any credit beyond the actual day-for-day ratio.
Reasons for Sentence, Appellant's Record, pp. 71-72
-18-
43.
In the end, the learned trial judge held that a lack of earned remission while in remand
custody is a "circumstance" that may justify granting enhanced credit for pre-sentence custody.
Indeed, in this case, it was the sole basis upon which he granted enhanced credit at the maximum
rate now permitted by s. 719(3.1) ofthe Criminal Code.
F.
The Decision of the Court of Appeal for Ontario
44.
The Crown appealed the sentence to the Court of Appeal for Ontario solely on the basis of
the trial judge's interpretation ofthe news. 719(3.1) of the Criminal Code. Specifically, the Crown
argued that the trial judge erred by finding that the unavailability of earned remission or parole to
those in remand custody was a "circumstance" that could justify granting enhanced credit for pretrial custody under s. 719(3.1) ofthe Code. The Crown argued that, in the absence of circumstances
unique to the respondent, credit for his time in pre-sentence custody ought to have been limited to
the new statutory maximum rate of 1:1, resulting in a sentence of 85.5 months in jail.
45.
In lengthy reasons released on March 12, 2013, the Court of Appeal rejected the Crown's
proposed interpretation ofs. 719(3.1) of the Criminal Code. The Court found that the section did
not require "exceptional" circumstances before a court may grant enhanced credit for pre-sentence
custody. The unavailability of earned remission or parole during remand custody, despite its
universal quality, is therefore a "circumstance" that may justify granting enhanced credit for presentence custody. The Court identified seven reasons for rejecting the Crown's argument, relying
heavily on the decisions of two other provincial appellate courts which arrived at the same
conclusion.
In particular, the Court believed the interpretation proposed by the Crown was
inconsistent with the sentencing principles of parity of proportionality. The Court found that the
expansive interpretation ofs. 719(3.1) adopted by the trial judge neither defeats nor impairs the
legislative purpose animating the new provision, and rejected the concern that this approach would
result in the creation of a new "general rule" in favour of granting credit for pre-sentence custody
at a rate of 1.5: 1.
Judgment of the Ont. C.A., Appellant's Record, pp. 35-45, paras. 89-112
R. v. Carvery, 2012 NSCA 107
R. v. Stonefish, 2012 MBCA 116
-1946.
When discussing the practical impact of its interpretive analysis, the Court of Appeal for
Ontario concluded: "There must be some basis in the evidence or information before the sentencing
judge to support the conclusion that [the absence of remission and parole eligibility] merits enhanced
credit for a particular offender in a given case." In reaching this conclusion, the Court of Appeal
expressly relied on similar conclusions reached in both Carvery and Stonefish to the effect that the
offender bears the onus of establishing that, had he or she been a sentenced inmate, they would have
probably received remission and/or statutory release.
Judgment of the Ont. C.A., Appellant's Record, pp. 45-49, paras. 113-119
4 7.
Since the Court of Appeal's decision in this case, four more provincial appellate courts have
weighed in on the debate over the correct interpretation and application of s. 719(3.1) of the
Criminal Code. Three ofthose courts (the appellate courts of Alberta, Newfoundland and Quebec)
have followed the reasoning in Carvery and Summers, finding that the "circumstances" contemplated
by s. 719(3.1) of the Code need not be "exceptional" before a judge may exercise his or her
discretion to grant enhanced credit for pre-sentence custody. The appellate courts ofNewfoundland
and Quebec specifically agreed that the lack of earned remission during remand custody was, by
itself, a "circumstance" that could justify granting enhanced credit for pre-sentence custody.
R. v. Johnson, [2013] A.J. No. 571 at paras. 22-23 (C.A.)
R. v. Cluney, [2013] N.J. No. 256 at paras. 30-31(C.A.)
R. c. Henrico, [2013] J.Q. no 10425 at para. 78 (C.A.)
48.
In contrast, the British Columbia Court of Appeal stands alone as the only Canadian appellate
court to date which has rejected the reasoning in Carvery, Summers and similar cases. In its decision
in R. v. Bradbury, a majority of the court held that, while the section does not necessarily require
"exceptional" circumstances, the circumstances that will justify enhanced credit must have
characteristics that are individual to the offender. The court further held that characteristics which
are universal to all offenders in remand custody (including the lack of earned remission or parole)
are not a sufficient basis for granting enhanced credit under s. 719(3 .1) of the Criminal Code.
R. v. Bradbury, [2013] B.C.J. No. 1261 at para. 48 (C.A.)
-20-
G.
The Correct Interpretation of s. 719(3.1) of the Criminal Code
(i)
49.
Principles of Statutory Interpretation
The issue in this case is fundamentally a question of statutory interpretation. The correct
approach to statutory interpretation in Canada is well-settled by the jurisprudence of this court. It
was most recently summarized by the Chief Justice in the following terms:
The basic rule of statutory interpretation is that "the words of an Act are to be read
in their entire context, in their grammatical and ordinary sense harmoniously with the
scheme of the Act, the object of the Act, and the intention of Parliament": R.
Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 1. Every
statute "shall be given such fair, large and liberal interpretation as best ensures the
attainment of its objects": Legislation Act, 2006, S.O. 2006, C. 21, Sch. F, s. 64(1).
Cuthbertson v. Rasouli, 2013 SCC 53 at para. 32
50.
The importance of context cannot be understated. As Justice Iacobucci observed, writing for
this court in Bell Express Vu Limited Partnership:
The preferred approach recognizes the important role that context must inevitably
play when a court construes the written words of a statute: as Professor John
Willis incisively noted in his seminal article "Statute Interpretation in a Nutshell"
(1938), 16 Can. Bar Rev. 1, at p. 6, "words, like people, take their colour from
their surroundings".
Bell Express Vu Limited Partnership v. Rex, [2002] 2 S.C.R. 559 at para. 27
51.
The manner in which legislative provisions are grouped together is also an important guide
to understanding the context ofthose provisions. Thus, when provisions are grouped together under
headings, it should be presumed that the provisions relate to each other in a particular way.
R. v. A.D.H., [2013] S.C.J. No. 28 at para. 115
52.
Another principle of statutory interpretation of particular relevance in the case at bar is the
presumption against tautology. Professor Sullivan, an accepted authority on the construction of
statutes, explains the principle in the following terms:
Every word and provision found in a statute is supposed to have a meaning and a
function. For this reason courts should avoid, as much as possible, adopting
-21interpretations that would render any portion of a statute meaningless or pointless
or redundant."
Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed (Markham:
LexisNexis Canada Inc., 2008) at 210
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 27
53.
Other principles of statutory interpretation, such as the strict construction of penal statutes
and the "Charter values" presumption, apply only where there is ambiguity as to the meaning of a
provision. The interpretive issue in this case has certainly challenged courts across the country at
both the trial and appellate level. Importantly, however, ambiguity does not arise merely from the
existence of conflicting judicial interpretations.
Bell Express Vu Limited Partnership, supra at para. 30
54.
The interpretation of statutes can sometimes be cumbersome and complex. At the end ofthe
day, however, common sense is often the best guide to understanding the meaning of a legislative
provision. As Justice Moldaver recently observed:
Indeed, when one steps back from the mechanistic and often result-driven application
of the seemingly endless and at times contradictory tools of statutory interpretation,
common sense may, and generally will, prove to be the best guide to statutory
interpretation.
R. v. A.D.H, supra at para. 83
(ii)
55.
The Structure ofs. 719 of the Criminal Code
Prior to the enactment of the Truth in Sentencing Act, s. 719 of the Criminal Code provided
courts with the statutory authority to take any time spent in pre-sentence custody into account when
determining the sentence to be imposed. As explained earlier, while courts uniformly rejected the
use of a mathematical formula for determining the amount of credit to be granted, the use of a 2: 1
credit ratio became the "general rule", with courts sometimes applying a higher or lower ratio
depending on the circumstances of the individual case.
-2256.
The Truth in Sentencing Act replaced this custom with new statutory guidelines for
calculating credit for pre-sentence custody. More specifically, it imposed a ceiling on the amount
of credit that can be given. The new "general rule" embodied ins. 719(3) of the Code (the same
section under which courts typically granted credit at a rate of 2:1) is that the court shall limit any
credit for that time to a maximum of one day for each day spent in pre-sentence custody. In other
words, as the court below accepted, credit for pre-sentence custody must now ordinarily be based
on a ratio of 0: 1 to 1: 1.
Judgment of the Ont. C.A., Appellant 's Record, p. 22, paras. 52-55
57.
Despite modifying the "general rule" for granting credit for pre-sentence custody, Parliament
preserved a degree of judicial discretion to grant enhanced credit for time spent in pre-sentence
custody. The limits of that discretion are explained in subsection (3.1): first, enhanced credit may
only be granted "if the circumstances justify it"; second, the amount of enhanced credit that may be
granted is strictly controlled by a cap of 1.5 days for each day spent in pre-sentence custody; and
third, enhanced credit is unavailable if the offender was detained on the basis of a previous
conviction or because he/she violated bail conditions or committed a new offence while on bail.
58.
The placement of subsection (3.1) within s. 719 is important. When the provision is read as
a whole, subsection (3 .1) is clearly designed to qualify subsection (3 ). In other words, as the
marginal notes suggest, s. 719(3 .1) operates as an "exception" to the general rule embodied in s.
719(3).
The court below minimized the importance of the marginal notes, but ignored the
introductory words ofs. 719(3.1): "Despite subsection (3) ... ". The ordinary meaning of the word
"despite" suggests this is a term of exception, like the word "notwithstanding" or the phrase "in spite
of'. When ss. 719(3) and (3.1) are read in context, in their grammatical and ordinary sense, and
harmoniously with the scheme and object of the Truth in Sentencing Act, it is submitted that
Parliament envisioned a limited scope for granting enhanced credit for pre-sentence custody.
Judgment of the Ont. C.A., Appellant's Record, pp. 31-32, paras. 80-81
-2359.
The legislation is silent as to the types of "circumstances" that might justify granting
enhanced credit for pre-sentence custody (up to the new maximum ratio of 1.5:1 ). As noted above,
however, the Minister of Justice provided some guidance in his statements before both Houses of
Parliament, citing extremely poor conditions of detention or unnecessary delays in the trial not
attributable to the accused as examples of circumstances that might justify granting enhanced credit.
The loss of remission or parole was notably absent from his list of examples.
Appellant's Factum, supra at paras. 31 & 35
60.
Prior to the amendments enacted by the Truth in Sentencing Act, the unavailability of
remission or parole for time spent in remand custody was one of three factors commonly cited as the
justification underlying the "general rule" of granting credit for pre-sentence custody on a 2:1 basis
(the others being the general unavailability of rehabilitative programs and the typically onerous
conditions in remand custody). This factor was never cited as a reason for granting enhanced credit
beyond the typical ratio of2: 1. Thus, it would seem that the factors which traditionally gave rise to
the old "general rule" of granting credit for pre-sentence custody on a 2:1 basis are the same factors
which underlie the new "general rule" of granting credit up to a maximum ratio of 1:1. Those same
factors cannot be relied upon again as the basis for granting enhanced credit under s. 719(3 .1).
61.
It is respectfully submitted that to find otherwise reverses the intended effect of s. 719(3 .1 ).
By virtue ofthe current provisions of both provincial and federal correctional legislation, no one can
earn remission or parole while in pre-sentence custody. If that fact qualifies as a circumstance that
justifies the maximum allowable enhanced credit of 1.5 days for each day spent in pre-sentence
custody, then every remand offender will qualify for this enhanced credit. This interpretation would
tum the statutory "exception" into the new "general rule", thereby rendering s. 719(3) irrelevant.
Such an interpretation offends the presumption against tautology and frustrates Parliament's clear
intent to impose strict limits on the amount of credit that may be awarded for time spent in presentence custody.
-2462.
The court below rejected concerns that it's interpretation of s. 719(3.1) of the Code would
transform the "enhanced" credit ratio of 1.5:1 into the new "general rule" for the credit to be applied
to time spent in pre-sentence custody. The appellate courts of Manitoba and Nova Scotia came to
the same conclusion. The application ofthese decisions by trial courts across the country, however,
demonstrates the legitimacy of this concern. The lack of earned remission for those on remand
(along with other circumstances experienced by the vast majority of remand offenders) is now
frequently cited as a justification for granting the maximum allowable ratio of credit for pre-sentence
custody ( 1.5: 1). Indeed, some courts have gone so far as to suggest the existence of a presumption
in favour of enhanced credit. Once again, it is respectfully submitted that such an approach is
contrary to the clear intention of Parliament in amending s. 719 of the Criminal Code.
Judgment of the Ont. C.A., Appellant's Record, pp. 35-37, paras. 89-92
v. Boucher, [2013] O.J. No. 1702 at para. 20 (O.C.J.)
v. Thompson, [2013] O.J. No. 2630 at para. 15 (S.C.J.)
v. Peterkin, [2013] O.J. No. 1614 at para. 34 (S.C.J.)
v. Crevier, [2013] O.J. No. 2257 at paras. 64-68 (S.C.J.)
v. Getachew, [2013] O.J. No. 2511 at paras. 35-39 (S.C.J.)
v. Dritsas, [2013] M.J. No. 278 at paras. 73 & 87 (Q.B.)
R. v. Fogarty, [2013] N.S.J. No. 491 at paras. 35-38 (S.C.)
R.
R.
R.
R.
R.
R.
(iii)
63.
Circumstances That Will Justify Granting Enhanced Credit
In the vast majority of cases, the factors typically cited as the reason for granting some credit
for pre-sentence custody (e.g. the lack of earned remission, the unavailability of programs, and the
typical conditions of remand custody) will justify granting credit up to the maximum ratio permitted
by s. 719(3) of the Criminal Code: one day credit for each day spent in pre-sentence custody.
64.
As noted above, courts have always had the discretion to grant enhanced credit for pre-
sentence custody in appropriate circumstances. The Truth in Sentencing Act did not curtail that
discretion. The only change brought about by the Act is the imposition of a cap on the credit ratio
that may be applied. Prior to the amendments, courts typically focussed on circumstances unique
to the offender in deciding whether to grant enhanced credit for pre-sentence custody. A number of
examples were conveniently summarized in R. v. Kravchov, a 2002 decision of the Ontario Court
-25of Justice. Today, these same factors may still be relevant to the exercise of discretion under s.
719(3 .1) of the Criminal Code:
•
•
•
•
•
•
•
•
•
•
•
the effect of pre-trial custody on a particular prisoner due to age, infirmity,
mental illness, linguistic or cultural isolation;
incarceration at a facility that houses primarily men where that has resulted
in isolation of a female prisoner;
lengthy pre-trial custody;
significant pre-trial custody where the accused has never been incarcerated
before;
the availability ofrehabilitative or education programs at the detention centre;
whether a jail is "overcrowded" and engaging in practices such as "triple
bunking";
the frequency of "lockdowns" and other measures denying the prisoner
exercise and access to areas outside his or her cell;
waiver of a preliminary hearing along with conditions of detention;
the prevalence of disease and any other conditions which endanger the health
of the prisoner;
custody during a public service strike where that labour disruption affected
the care of the prisoners and prevented their transportation to court;
any unusual delays in the progress of the case attributable to the Crown.
R. v. Kravchov, supra at para. 12
65.
The British Columbia Court of Appeal recently took the same approach in R. v. Bradbury.
The Attorney General of Ontario endorses the following comments ofMadam Justice Smith, writing
for a majority of that court, as the correct approach to the interpretation of the word "circumstances"
in s. 719( 3.1) of the Criminal Code:
I also agree with the other appellate decisions that the exception in ss. (3 .1) does not
require "exceptional" circumstances and that circumstances that will justify enhanced
credit must be personal to the individual offender. In my opinion, however,
circumstances that would justify enhanced credit must have a qualitative
characteristic; that is, a characteristic that is individual to the offender but also
distinct from those characteristics that are universal to, or almost universally held, by
other similarly situated offenders. Examples of commonly held circumstances might
include the lack of programs, the conditions of the remand institution, and the loss
of remission or parole eligibility. Individual qualitative circumstances might include
the imposition of segregated or protective custody through no fault of the accused,
the harsh effect of remand conditions because of a particular health issue by an
-26accused, or a delay in the proceedings that is not attributable to the accused. Stated
otherwise, circumstances to justify enhanced credit must be ones that are outside of
the common experience of most offenders in remand custody.
R. v. Bradbury, supra at para. 48
66.
Without doubt, there will continue to be cases where trial judges may decide to grant less
than 1:1 credit or even no credit for time spent in pre-sentence custody. The amendments brought
about by the Truth in Sentencing Act have no impact on such decisions, as the circumstances which
may lead to a partial or complete denial of credit for pre-sentence custody remain the same now as
they did before the amendments. For example, something less than 1:1 credit may be granted where
such credit would have no practical impact on the sentence, or where the offender:
•
•
•
•
•
received the benefit of a full range of educational, vocational or rehabilitative
programs or is unlikely to take advantage or such programs;
has a history of previous incarceration which suggests he/she would be unlikely to
receive early release;
was in custody as a result of repeated bail violations;
is seen to pose a serious danger to society; or
has deliberately delayed the trial process in order to secure the benefit of credit for
pre-sentence custody.
R.
R.
R.
R.
v. Thornton (2007), 224 O.A.C. 219 at paras. 31-33 (C.A.)
v. Hawkins, [2007] B.C.J. No. 2205 at paras. 13-14 (C.A.)
v. Francis (2006), 79 O.R. (3d) 551 at paras. 23-25 (C.A.)
v. Pangm.an (2001), 156 Man. R. (2d) 120 at para. 66 (C.A.)
H.
Additional Errors in the Ontario Court of Appeal's Analysis
67.
It is the position ofthe Attorney General of Ontario that the interpretation ofs. 719(3.1)
adopted by the court below is inconsistent with both the plain meaning of the new legislative
provisions and the will of Parliament. In addition, it is respectfully submitted that the Court of
Appeal's analysis contained two critical errors. First, the Court of Appeal was wrong to find that
an expansive interpretation of the new provisions is necessary to respect the sentencing principles
of proportionality and parity. The discretion created by s. 719(3.1) should not be used as a
mechanism for attempting to achieve equivalence in the number of days spent in jail between those
who are detained in custody prior to sentence and those who are not.
-2768.
Secondly, the Court of Appeal was wrong to invite sentencing courts to consider the
likelihood of the offender's early release in deciding whether or not the offender's circumstances
justify granting enhanced credit for pre-sentence custody. Such a direction is contrary to the wellsettled principle that considerations relating to the administration of the sentence, including the
future likelihood of an offender's early release, are irrelevant at sentencing.
(i)
69.
The Sentencing Principles of Proportionality and Parity Do Not Apply
Courts which have found that the unavailability of remission or parole qualifies as a
"circumstance" that may justify granting enhanced credit under s. 719(3.1) of the Criminal Code
have largely been motivated by perceived fairness concerns: granting credit for pre-sentence custody
at a rate of 1: 1, they say, would result in a longer effective sentence for an offender who served time
in remand than for an offender who did not. Assuming both offenders would be released on the
statutory release date provided by federal or provincial corrections legislation (ie. two-thirds of the
sentence), those courts have concluded that the best way to achieve equality in the actual amount of
time spent in jail is to grant credit at a rate of 1.5 : 1. The Court of Appeal for Ontario (following the
Nova Scotia Court of Appeal's lead on this point) went even further and said that any other approach
would offend the sentencing principles of proportionality and parity.
Judgment of the Ont. C.A., Appellant's Record, pp. 37-43, paras. 93-107
R. v. Carvery, supra at paras. 75-77
70.
With respect, the Court of Appeal's reliance on the principles of proportionality and parity
in this context is misconceived. Firstly, sentencing has long been recognized as an individualized
process that takes into account a wide range of factors and circumstances. The fundamental principle
of sentencing, however, is that the sentence imposed must be proportionate to the gravity of the
offence and the degree of responsibility of the offender. While this principle serves broader societal
objectives, such as promoting justice for both the victim and the offender and promoting confidence
in the justice system, it's primary goal is the imposition of a just sanction in a particular case,
having regard to the seriousness of the offence and the degree of responsibility of the offender.
R.
V.
lpeelee, 2012
sec 13 at paras. 36-38
-2871.
The focus of the proportionality principle is on arriving at a fit and appropriate sentence,
having regard to the circumstances of the offence and the offender. The aggravating and mitigating
factors in the case are therefore directly relevant to the principle of proportionality. Not every
consideration in the sentencing process, however, is relevant to the proportionality principle. For
example, the collateral consequences of a sentence (ie. the impact of the sentence on the particular
offender) are more relevant to the principles of individualization, parity and rehabilitation. Similarly,
any credit for pre-sentence custody is given after arriving at a fit sentence, and simply results in a
mathematical adjustment to the sentence actually imposed (ie. a reduction in an otherwise fit
sentence). In the case at bar, the Court of Appeal was concerned that the inability to compensate
offenders for the lack of earned remission or parole during remand custody would result in the
imposition of disproportionate sentences. With respect, the mere possibility that two similar
offenders might each serve comparatively more or less time in custody as a result of the combined
effect of their pre-sentence custody and the operation of correctional legislation does not engage the
proportionality principle.
R. v. Pham, 2013 SCC 15 at para. 11
R. v. Irvine (2008), 231 C.C.C. (3d) 69 at para. 27 (Man. C.A.)
72.
The parity principle, on the other hand, now codified ins. 718.2(b) of the Criminal Code, is
intended to ensure that similar sentences are imposed on similar offenders for similar offences
committed in similar circumstances. It's goal is to ensure that sentences in similar cases fall within
an acceptable range, and that any disparity between sanctions imposed on similarly-situated
offenders be justified. In practice, however, as this court recently observed, similarity will always
be a matter of degree and courts must avoid taking a formalistic approach to parity in sentencing.
As former Chief Justice Lamer said in R. v. M. (CA.), writing on behalf of a unanimous court:
"Sentencing is an inherently individualized process, and the search for a single appropriate sentence
for a similar offender and a similar crime will frequently be an exercise of academic abstraction."
Criminal Code, R.S .C. 1985, c. C-46, s. 718.2(b)
R. v. M. (CA.), [ 1996] 1 S.C.R. 500 at para. 92
R. v. Jpeelee, supra at para. 79
-2973.
The parity principle is not intended to ensure equality in the precise number of days that
similar offenders are likely to spend in jail. Canadian criminal law accepts the inevitability that
detained offenders, between themselves, will sometimes receive sentences of different lengths and
that detained offenders may end up spending more time in custody than offenders who were not
detained prior to sentencing. When it comes to credit for pre-sentence custody, the law has always
recognized that credit is not mandatory (although not to be withheld without good reason) and that
enhanced credit is not granted to every offender (indeed, in light of s. 719(3 .1), enhanced credit is
now precluded in certain circumstances). Nevertheless, the court below relied on the parity principle
as the justification for granting enhanced credit for pre-sentence custody as a means of compensating
the respondent for the lack of earned remission or parole during remand custody. With respect, as
demonstrated below, the reasoning behind this approach is premised on flawed assumptions.
R. v. Bradbury, supra at paras. 45-47
74.
The "parity'' achieved by granting credit for pre-sentence custody at the enhanced rate of
1.5:1 is premised on the assumption that the detained offender and his or her fictional counterpart
who was not detained prior to sentencing will both be released on their statutory release date, having
served two thirds of their sentence. In any given case, however, it is equally possible that either
offender might be released on day parole or full parole, or even held to warrant expiry, as a result
ofthe offender's actions or behaviour in custody while serving their sentence. Thus, the use of the
enhanced credit ratio is actually an ineffective tool for achieving equality in the total number of days
the two offenders ultimately spend in jail. The following examples will help to illustrate this point.
75.
The first example (summarized in illustration #1, below) is the one that persuaded the Court
of Appeal for Ontario to find that granting enhanced credit at the maximum prescribed rate of 1.5:1
is the only way to avoid the "disparate and inequitable" treatment of offenders, and is thus a
legitimate means of achieving the sentenc ·ng goals of parity and proportionality. This same example
was advanced by Prof. Doob when making the same point to the House of Commons Standing
Committee on Justice and Human Rights. In this example, two similar offenders are to be sentenced
to 90 days in jail. One ofthe offenders was detained, serving 60 days in pre-sentence custody; the
-30other was not detained. At a credit ratio of 1:1, the offender who was detained would receive a
further 30 days in jail. On the assumption that both offenders would be held until their statutory
release date, the offender who had been detained would end up serving a total of 80 days in jail: 60
days in pre-sentence custody+ 20 days (ie. 2/3) of the actual sentence imposed. The offender who
had not been detained would end up serving a total of 60 days in jail (2/3 of the 90 day sentence
imposed). Applying a credit ratio of 1.5:1, however, the detained offender would receive a sentence
oftime served, and thus would end up spending a total of 60 days in jail- the same number of days
spent in jail by the non-detained offender who was released after serving 2/3 of his/her sentence.
Judgment of the Ont. C. A., Appellant's Record, pp. 40-41, para. 101
Standing Committee on Justice and Human Rights (25 May 2009) at 1550-1600
Illustration #1
' <'
Cre.,di~~-
!I '
'
-
-
'}'Effective PSC
1 .it~tioi"- Sentence ,.
"(in "Hays) "' "'
.., . . ,.
.
~''
v
-
""
j•
"'"
-
-~'
}
Credi\ c. ~~f.: l t.A?tu~ \-· ,.
Ammmf·
trl' ]
-· .l - ,~;)"
., .-
:-
.
'
:-~en.tence
- ~posed
.
'
1:1
90
60
60
30
1.5:1
90
60
90
time served
Offender not detained
76.
90
.
-
-
T?,tal D~a~ fu l~Ufrele.ased on
.. I ~ fa . -·
. Parole ,
-
-
(113)
.s- tUtory
~
.Release {2/3)
60+10
=70
60+20
= 80
30
60
0
Warrant
·:Expiry
'
90
90
The problem with this approach is that it is based on an assumption as to when (or whether)
the two offenders will be released from custody once they begin serving the sentence imposed. The
"parity'' achieved by granting credit for pre-sentence custody at a rate of 1.5: 1 applies only if both
offenders are released from jail on their statutory release date (ie. after serving 2/3 oftheir sentence).
If both offenders were instead released on parole (ie. after serving 1/3 of their sentences),
considerable disparity remains in the actual number of days that each offender spends in jail: despite
having received a sentence of"time served", the detained offender will spend a total of 60 days in
jail (in pre-sentence custody) and the offender who was not detained will spend only 30 days in jail
(having been released after serving 1/3 ofhislher sentence). Conversely, ifboth offenders are held
-31to warrant expiry (for reasons which cannot possibly be known at the time of sentencing), then both
offenders will end up serving precisely the same number of days in jail, and the need for enhanced
credit for pre-sentence custody as an "equalizing tool" disappears.
77.
Moreover, the use ofthe enhanced credit ratio of 1.5:1 as an "equalizing tool" may actually
create disparity in the treatment of the two offenders in this hypothetical scenario. If the detained
offender receives 1.5:1 credit for his/her pre-sentence custody, then he/she would receive a sentence
of "time served" and would not serve any additional time in jail beyond the 60 days spent in presentence custody. If the offender's fictional counterpart (the one who was not detained prior to
sentencing) is for some reason held to warrant expiry, then he/she will serve the entire 90 days of
his/her sentence. The non-detained offender would consequently end up spending an additional 3 0
days in jail than the offender who had been detained prior to sentencing.
78.
The next example (depicted in illustration #2) is based on the sentence imposed in the case
at bar. Once again, the use of a credit ratio of 1.5:1 for the respondent's pre-sentence custody nearly
(but not perfectly) eliminates the disparity between the total number of months spent in jail as
between the respondent (who was detained) and a hypothetical similar offender (who was not
detained), assuming both offenders are released after serving 2/3 of their sentence. Disparity
remains, however, if one or both offenders are released after serving 1/3 of their sentence. The
disparity of treatment also remains if both offenders are held to warrant expiry, with the respondent
actually spending less time in jail (90.5 months) than his hypothetical counterpart (96 months).
79.
Even if we accept that the respondent and his hypothetical counterpart are likely to remain
in custody until their statutory release date, the differential between the total number of months that
the two offenders will actually spend in jail is only 3.5 months ifthe respondent receives credit for
his pre-sentence custody at a rate of1:1 (the respondent will end up spending a total of67.5 months
in jail, while his fictional counterpart who was not detained prior to sentencing would end up
spending a total of64 months in jail). With respect, this modest difference in the amount oftime
spent in jail by the two "similarly situated" offenders is hardly enough to offend the parity principle.
-32-
Illustration #2
Credit
Ratio
Effective
Sentence
(in mos.)
Credit
Amount
PSC
Actual
Sentence
Imposed
Total Months in Jail if released on
Parole (113)
Statutory
Release (2/3)
Warrant
Expiry
I·
f.
1:1
96
10.5
10.5
85.5
10.5 + 28.5
= 39 mos.
10.5 +57
= 67.5 mos.
96
1.5:1
96
10.5
16
80
10.5 + 27
= 37.5 mos.
10.5 +53
63.5 mos.
90.5
=
32
64 mos.
96
Offender not detained
80.
96
As noted above, the Court of Appeal's reliance on the parity principle was rooted in a
concern about the perceived unfairness caused by the absence of earned remission for offenders who
spend time in pre-sentence custody. The trial judge's decision to grant enhanced credit on this basis
was clearly motivated by the same concern, albeit not expressed as a violation ofthe parity principle.
This very concern was one of one ofthe principal complaints about the proposed amendments raised
during debate before the House of Commons and the Senate. Indeed, it was the motivation behind
the proposal to amend the Bill to allow credit up to 1.5 days for each day spent in pre-sentence
custody as a general rule, and up to two days for each day "if the circumstances justify it".
Importantly, however, Parliament rejected that proposal twice: once in the House of Commons and
again in the Senate. The resulting legislation which now forms part of our Criminal Code therefore
reflects Parliament's clear policy choice to impose stricter controls on the amount of credit awarded
for pre-sentence custody, despite the absence of earned remission for time spent in pre-sentence
custody.
Appellant 's Factum, supra at paras. 32-36
(ii)
81 .
The Effects of Remission and Parole are Irrelevant at Sentencing
The Court of Appeal for Ontario attempted to limit the scope of its interpretation of s.
719(3 .1) by cautioning that enhanced credit for pre-sentence custody will not necessarily be available
to every remand offender solely on the basis of the absence of remission or parole eligibility.
-33Instead, the court found: "There must be some basis in the evidence or the information before the
sentencing judge to support the conclusion that this factor merits enhanced credit for a particular
offender in a given case." The appellate courts of both Nova Scotia and Manitoba had previously
reached the same conclusion, noting that enhanced credit on this basis will depend on the offender
satisfying the sentencing court that, had he or she been a sentenced inmate, they "probably" would
have received remission and/or statutory release.
Judgment of the Ont. C.A., Appellant's Record, pp. 47-48, paras. 117-118
R. v. Carvery, supra at paras. 65-66
R. v. Stonejish, supra at paras. 81-83
82.
With respect, this line of inquiry deserves no place in the sentencing process. It is a simple
fact of Canadian correctional law that earned remission and parole eligibility apply only to postsentence incarceration. The period of time spent in remand custody is not included in the calculation
of an offender's post-sentence remission or parole eligibility. The question of whether or not the
offender might have been eligible for earned remission during this period is irrelevant because no
such scheme presently exists. The Court of Appeal thus invites sentencing courts to ask an entirely
hypothetical question, the answer to which is necessarily speculative.
83.
Despite its initial focus on the offender's behaviour while in remand custody, the Court of
Appeal for Ontario later shifted its attention to the offender's future prospects for remission or
parole eligibility. On this point, the Court of Appeal held:
[T]he provision of information relevant to a claim for enhanced credit need not be an
onerous task. While formal evidence of an accused's likely prospects for remission
or parole eligibility may be lead at a sentencing hearing, information bearing on these
issues (e.g. information regarding an accused's conduct during detention, an
accused's co-operation with authorities and adherence to prison rules; or an accused's
efforts to advance to trial) may also be furnished to a sentencing judge through
counsels' sentencing submissions, by agreement between the prosecutor and the
defence, or otherwise as contemplated under ss. 720-727 of the Code.
Judgment of the Ont. C.A., Appellant's Record, p. 50, para. 123
-3484.
In focusing on the offender's likelihood of early release, the Court of Appeal has invited
sentencing courts to ask a prohibited question, since it is well settled that considerations relating to
the administration of the sentence are irrelevant at sentencing. If it is improper to impose a longer
jail sentence in an effort to thwart the operation of correctional legislation then, a fortiori, it is
improper to reduce the sentence by granting enhanced credit for pre-sentence custody based on
speculation or assumptions about when the offender may be released from prison.
R. v. Zinck, [2003] I S.C.R. 41 at para. 18
R. v. Wust, supra at para. 24
R. v. M.(C.A.), supra at para. 70
R. v. Bradbury, supra at paras. 31-34 & 49
R. v. Wilson, 2009 ABCA 257 at para. 36
R. v. Orr, (2008] B.C.J. No. 282 at paras. 16-17 (C.A.)
R. v. Bernier, 2003 BCCA 134 at paras. 44-45
R. v. Oliver, [1997] N.J. No. 10 at para. 16 (Nfld. C.A.)
I.
The Principles Applied to the Respondent's Circumstances
85.
The respondent is entitled to some credit for the 10.5 months he spent in pre-sentence
custody. Pursuant to s. 719(3) of the Criminal Code, however, the amount of credit he may receive
is limited to a maximum credit ratio of 1: 1, unless his individual circumstances justified granting
enhanced credit, up to a maximum credit ratio of 1. 5: 1.
86.
At trial, the Crown suggested that the trial judge might consider the six month period
between the respondent's arrest and the disclosure of the post-mortem report in deciding whether
or not to grant enhanced credit for the respondent's pre-sentence custody. In the end, however, that
period oftime did not factor into the trial judge's decision to grant enhanced credit. Instead, the sole
basis for granting the respondent the maximum credit ratio now permitted by law was the fact that
the respondent, like every other remand prisoner, did not earn any remission during his time in presentence custody. It is respectfully submitted that, correctly interpreted, s. 719(3 .1) of the Code did
not permit the trial judge to grant enhanced credit on that basis. In the absence of circumstances
unique to the respondent (such as particularly onerous conditions of detention or significant delays
not attributable to the respondent), there was no basis for granting him enhanced credit for his presentence custody.
-3587.
The court below went even further than the trial judge in finding support for granting the
respondent enhanced credit for his pre-sentence custody, citing the respondent's early guilty plea,
acceptance of responsibility for his actions, expressions of remorse and his prosects for early parole.
It is respectfully submitted, however, that these factors go well beyond the types of"circumstances"
that Parliament envisioned when enacting s. 719(3.1) of the Code. The respondent's early guilty
plea, acceptance of responsibility for his actions, and expressions of remorse are mitigating factors
in the case, relevant only to the determination of an appropriate sentence. For the reasons expressed
above, consideration of the respondent's prosects for early parole has no place in the sentencing
process; this factor is irrelevant to both the determination of a fit sentence and to the determination
of whether to grant enhanced credit for pre-sentence custody.
Judgment of the Ont. C.A., Appellant's Record, pp. 50-51, paras. 124-126
88.
In short, while the respondent was certainly entitled to receive some credit for his pre-
sentence custody, the maximum credit ratio that ought to have been applied was the maximum ratio
of 1:1 prescribed by s. 719(3) ofthe Criminal Code. There were no "circumstances" in this case to
justify granting enhanced credit at the maximum 1.5:1 ratio permitted by s. 719(3.1) ofthe Code.
-36-
PART IV: SUBMISSIONS ON COSTS
89.
The appellant does not seek any order as to costs and makes no submissions as to costs.
PART V: ORDER REQUESTED
90.
It is respectfully requested that the appeal be allowed and the sentence varied by re-
calculating the sentence, giving credit for the respondent's pre-sentence custody at the statutorily
prescribed rate of 1:1, resulting in a sentence of 85.5 months in jail.
ALL OF WHICH is respectfully submitted by:
Gregory J. Tweney
Counsel for the Attorney
Molly
nagan
Counsel for the Attorn
General for Ontario
Dated at TORONTO, this 29 1h day of October, 2013.
-37-
PART VI: TABLE OF AUTHORITIES
A.
Cases
Tab
Paraa:raRh{s}
1
Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559
50,53
2
Cuthbertson v. Rasouli, 2013 SCC 53
49
3
R. v. Abubeker, [2011] O.J. No. 2927 (C.J.)
41
4
R. v. A.D.H., [2013] S.C.J. No. 28
51,54
5
R. v. Bernier, 2003 BCCA 134
84
6
R. v. Boucher, [2013] O.J. No. 1702 (O.C.J.)
62
7
R. v. Boyd, [2012] O.J. No. 5225 (S.C.J.)
41
8
R. v. Bradbury, [2013] B.C.J. No. 1261 (C.A.)
48,64, 73
9
R. v. Bridgeman, [2011] O.J. No. 1215 (C.J.)
41
10
R. v. B.R.S., [2011] O.J. No. 4273 (C.J.)
41
11
R.
72,84
12
R. v. Caceres, [2012] O.J. No. 4421 (S.C.J.)
41
13
R. v. Carvery, 2012 NSCA 107
45,69,81
14
R. v. Cluney, [2013] N.J. No. 256 (C.A.)
47
15
R. v. Crevier, [2013] O.J. No. 2257 (S.C.J.)
62
16
R. v. Critton, [2002] O.J. No. 2594 (S.C.J.)
25
17
R. v. D.A.J., [2011] O.J. No. 4026 (S.C.J.)
41
18
R. v. Dann, [2011] N.S.J. No. 217 (Prov. Ct.)
40
19
R. v. Desjarlais, [2012] N.W.T.J. No.3 (Terr. Ct.)
40
20
R. v. Dritsas, [2013] M.J. No. 278 (Q.B.)
62
21
R. v. Fogarty, [2013] N.S.J. No. 491 (S.C.)
62
22
R. v. Francis (2006), 79 O.R. (3d) 551 (C.A.)
66
23
R. v. Getachew, [2013] O.J. No. 2511 (S.C.J.)
62
V.
C.A.M., [1996] 1 S.C.R. 500
-3824
R. c. Gosselin, 2011 QCCQ 11688 (Crim. & Penal Div.)
41
25
R. v. Hawkins, [2007] B.C.J. No. 2205 (C.A.)
66
26
R. c. Henrico, [2013] J.Q. no 10425 (C.A.)
47
27
R. v. /peelee, 2012 SCC 13
70, 72
28
R. v. Irvine (2008), 231 C.C.C. (3d) 69 (Man. C.A.)
71
29
R. v. JB., [2004] O.J. No. 2559 (C.A.)
25
30
R. v. JB., [2011] B.C.J. No. 1282 (Prov. Ct.)
40
31
R. v. Johnson, [2011] O.J. No. 822 (O.C.J.)
39
32
R. v. Johnson, [2013] A.J. No. 571 (C.A.)
47
33
R. v. JE.D., [2007] OJ. No. 2022 (C.A.)
23
34
R. v. Kravchov (2002), 4 C.R. (6 1h) 137 (O.C.J.)
25,64
35
R. v. MacDonald (1998), 127 C.C.C. (3d) 57 (Ont. C.A.)
23
36
R. v. Morris, [2011] O.J. No. 3995 (S.C.J.); 2013 ONCA 223
41
37
R. v. Myers, [2011] N.J. No. 301 (Prov. Ct.)
40
38
R. v. Oliver, [1997] N.J. No. 10 (Nfld. C.A.)
84
39
R. v. Orr, [2008] B.C.J. No. 282 (C.A.)
84
40
R. v. Pangman (2001), 156 Man. R. (2d) 120 (C.A.)
66
41
R. v. Peterkin, [2013] O.J. No. 1614 (S.C.J.)
62
42
R. v. Pham, 2013 SCC 15
71
43
R. v. Prince, [2012] B.C.J. No. 381 (S.C.)
41
44
R. v. Rezaie (1996), 112 C.C.C. (3d) 97(0nt. C.A.)
23
45
R. v. Serniak, [2002] O.J. No. 5160 (S.C.J.)
25
46
R. v. Stonefish, 2012 MBCA 116
45,81
47
R. v. Thompson, [2013] O.J. No. 2630 (S.C.J.)
62
48
R. v. Thornton (2007), 224 O.A.C. 219 (C.A.)
66
49
R. v. Velez-Lau, [2011] OJ. No. 3710 (S.C.J.)
41
-3950
R. v. Vittrekwa, [2011] Y.J. No. 76 (Terr. Ct.)
40
51
R. v. Wheeler, [2011] N.J. No. 391 (Prov. Ct.)
41
52
R. v. Wilson, 2009 ABCA 257
84
53
R. v. Wust, [2000] 1 S.C.R. 455
23,24,84
54
R. v. Zinck, [2003] 1 S.C.R. 41
84
55
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27
52
B.
Secondary Sources
56
House of Commons Debates (20 April 2009)
28,29,30
57
Standing Committee on Justice and Human Rights (6 May 2009)
31
58
Standing Committee on Justice and Human Rights (25 May 2009)
32,75
59
Standing Committee on Justice and Human Rights (1 June 2009)
33,34
60
Standing Committee on Justice and Human Rights (1 June 2009),
Minutes of Proceedings
33
61
Standing Senate Committee on Legal and Constitutional Affairs
(17 September 2009)
35
62
Debates of the Senate (20 October 2009)
36
63
Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed
(Markham: LexisNexis Canada Inc., 2008)
52
-40-
PART VII: STATUTORY PROVISIONS
Ent:lish Version:
Determination of sentence
719 (3) In determining the sentence to be imposed on a person convicted of an offence, a court may
take into account any time spent in custody by the person as a result of the offence but the court
shall limit any credit for that time to a maximum of one day for each day spent in custody.
Exception
(3.1) Despite subsection (3), ifthe 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).
Criminal Code, R.S.C. 1985, c. C-46, ss. 719(3) and (3.1)
French Version:
Infliction de Ia peine
719 (3) Pour fixer la peine ainfliger aune personne declaree coupable d'une infraction, le tribunal
peut prendre en compte toute periode que Ia personne a passee sous garde par suite de }'infraction;
il do it, le cas echeant, restreindre le temps alloue pour cette peri ode aun maximum d'unjour pour
chaque jour passe sous garde.
Exception
(3.1) Malgre le paragraphe (3), si les circonstances le justifient, le maximum est d'unjour et demi
pour chaque jour passe sous garde, sauf dans le cas oil la personne a ete detenue pour le motifinscrit
au dossier de I' instance en application du paragraphe 515(9 .1) ou au titre de I' ordonnance rendue
en application des paragraphes 524(4) ou (8).
Code Criminel, R.S.C. 1985, c. C-46, ss. 719(3) and (3.1)