R. v. Arrance, [2000] 1 S.C.R. 488
Christopher Ronald Arrance Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General for
Ontario Intervener
Indexed as: R. v. Arrance
Neutral citation: 2000 SCC 20.
File No.: 26802.
1999: November 9; 2000: April 13.
Present: Gonthier, McLachlin, Iacobucci, Major,
Bastarache, Binnie and Arbour JJ.
on appeal from the court of appeal for british columbia
Criminal law -- Sentencing -- Mandatory minimum
sentences -- Robbery -- Criminal Code providing for mandatory minimum sentence
of four years where firearm used in commission of robbery -- Whether sentencing
judge may reduce minimum sentence to take into account pre-sentencing custody
-- Criminal Code, R.S.C., 1985, c. C-46, ss. 344 (a), 719(3) .
The accused pleaded guilty to one count of robbery
while using a firearm. At the time of his sentencing, he had been in custody
since his arrest almost three months earlier. Pursuant to s. 719(3) of the
Criminal Code , the sentencing judge gave the accused credit for time
served and sentenced him to three and one-half years’ imprisonment. On appeal,
the Court of Appeal imposed the minimum sentence of four years’ imprisonment
required by s. 344(a) of the Code.
Held: The appeal should be allowed.
For the reasons given in R. v. Wust, [2000] 1
S.C.R. 455, 2000 SCC 18, a sentencing judge may give credit for time served in
pre‑sentencing custody, even if that credit results in a sentence below
the mandatory minimum, since mandatory minimum sentences must be interpreted
and administered in a manner consistent with the criminal justice system's
overall sentencing regime.
Cases Cited
Followed: R. v.
Wust, [2000] 1 S.C.R. 455, 2000 SCC 18; referred
to: R. v. Arthurs, [2000] 1 S.C.R. 481, 2000 SCC 19; R. v. Wust (1997),
43 C.R.R. (2d) 320.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 12 .
Criminal Code, R.S.C., 1985, c. C-46, ss. 344 [repl. 1995, c. 39,
s. 149], 719(1) [en. 1995, c. 22, s. 6], (3) [idem],
721(3) [rep. idem].
APPEAL from a judgment of the British Columbia Court
of Appeal (1998), 107 B.C.A.C. 130, 174 W.A.C. 130, 125 C.C.C. (3d) 43, 17 C.R.
(5th) 45, 53 C.R.R. (2d) 306, [1998] B.C.J. No. 1076 (QL), dismissing the
accused’s appeal against sentence. Appeal allowed.
James Bahen, for the
appellant.
Peter W. Ewert, Q.C.,
and Geoffrey R. Gaul, for the respondent.
David Finley, for the
intervener.
The judgment of the Court was delivered by
Arbour J. --
I. Introduction
1
This appeal was heard at the same time as two other cases, R. v. Wust,
[2000] 1 S.C.R. 455, 2000 SCC 18, and R. v. Arthurs, [2000] 1 S.C.R.
481, 2000 SCC 19, which are released concurrently with this decision. The
issue is whether, when Parliament has imposed a mandatory minimum sentence, the
court may deduct from that sentence the time spent by the offender in custody
while awaiting trial and sentence, if this has the effect of reducing the
sentence pronounced by the court to less than the minimum provided by law. For
the reasons I set out in Wust, s. 719(3) of the Criminal Code,
R.S.C., 1985, c. C-46 , which provides judges with the discretion to count
pre-sentencing custody in fixing the length of the sentence, may be applied to
the mandatory minimum sentence of four years’ imprisonment for robbery while
using a firearm under s. 344(a) of the Code. I determined in Wust
that a sentencing judge may give credit for time served in pre-sentencing
custody, even if that credit results in a sentence below the mandatory minimum,
since this reflects the intention of Parliament that all sentences be
administered consistently within the context of the criminal justice system’s
sentencing regime.
II. Factual
Background and Judicial History
A. Factual
Background
2
A brief review of the facts is necessary to dispose of this appeal. On
January 15, 1997, the appellant robbed a gas station in Vancouver, British
Columbia. He pointed a loaded shotgun at the attendant, holding the barrel
about five inches from the attendant’s chest and demanded money and
cigarettes. He obtained both before driving away in a van, with which an
accomplice had been waiting. A few moments later, the van was stopped by the
police and the appellant was apprehended after a short chase on foot.
3
The appellant pleaded guilty to one count of robbery while using a
firearm. He was a 21-year-old drug addict with a record of 19 convictions
since April 1990. He was remanded in custody for almost three months, pending
sentencing.
B. British
Columbia Provincial Court
4
Relying on the decision of Grist J. in R. v. Wust (1997), 43
C.R.R. (2d) 320 (B.C.S.C.), Bendrodt Prov. Ct. J. found that s. 721(3) of the Criminal
Code (now s. 719(3) ) could be applied to a mandatory minimum sentence in
the circumstances of this case. The appellant was credited with six months for
the three months spent in pre-sentencing custody, resulting in the imposition
of a sentence of three years and six months’ imprisonment.
C. British
Columbia Court of Appeal (1998), 125 C.C.C. (3d) 43
5
The appellant appealed his sentence, challenging the constitutionality
of the mandatory minimum punishment of s. 344 (a) as a violation of his
s. 12 Charter right to be free of cruel and unusual punishment and
should the provision be upheld, seeking to defend the credit given for time
served. The appeal was heard and decided at the same time as four other
sentencing appeals, all under s. 344 (a). As previously noted, two of
those appeals were also heard in this Court together with the present case: Wust,
supra, and Arthurs, supra.
6
McEachern C.J.B.C., writing for a unanimous court, upheld the
constitutionality of s. 344 (a) under s. 12 of the Canadian Charter of
Rights and Freedoms , and also held that the correct interpretation
of s. 344 (a) mandated the imposition of a sentence of at least four
years. Because s. 719(1) provides that a sentence begins when it is imposed,
McEachern C.J.B.C. held that it was not possible to reduce a sentence to
account for time served while awaiting sentence, if such a discount results in
a sentence of less than the required minimum. Thus, in the appellant’s case,
the court dismissed his appeal and allowed the Crown’s appeal, increasing the
appellant’s sentence to the four-year minimum.
III. Relevant
Statutory Provisions
7
Criminal Code, R.S.C., 1985, c. C-46
344. Every person who commits robbery is
guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence,
to imprisonment for life and to a minimum punishment of imprisonment for a term
of four years; and
(b) in any other case, to imprisonment for life.
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.
IV. Conclusion and Disposition
8
The only issue before this Court is whether the Court of Appeal erred in
reversing the trial judge’s decision to apply s. 719(3) to give credit for the
time the appellant had already served in custody awaiting sentencing. For the
reasons given in Wust, supra, I find that the Court of
Appeal did err in so doing.
9
This case, like Arthurs, supra, illustrates again
the unfairness that results from an interpretation of the Criminal Code
that precludes granting credit for time served prior to sentence. The
appellant was detained following his guilty plea, but while awaiting sentence.
It would be unfair if this period of time, which after a guilty plea is
undoubtedly part of the punishment, were to be added to the minimum required by
law, rather than computed as part of it. For these reasons and the reasons
given in Wust, supra, I would allow the appeal, set aside the
judgment of the Court of Appeal and reinstate the sentence
imposed on the appellant by Bendrodt Prov. Ct. J.
Appeal allowed.
Solicitors for the appellant: Leask
Bahen, Vancouver.
Solicitor for the respondent: The Ministry of the
Attorney General, Victoria.
Solicitor for the intervener: The Ministry of the
Attorney General, Toronto.
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