SUPREME
COURT OF CANADA
Between:
Her
Majesty The Queen
Appellant
and
Sean
Summers
Respondent
- and -
Director
of Criminal and Penal Prosecutions of Quebec,
British
Columbia Civil Liberties Association,
Criminal
Lawyers’ Association of Ontario,
John
Howard Society of Canada and
Canadian
Civil Liberties Association
Interveners
Coram: McLachlin C.J.
and LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ.
|
Reasons
for Judgment:
(paras. 1 to 89)
|
Karakatsanis J. (McLachlin C.J. and
LeBel, Abella, Rothstein, Cromwell and Wagner JJ. concurring)
|
R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575
Her Majesty The Queen Appellant
v.
Sean Summers Respondent
and
Director of Criminal and Penal
Prosecutions of Quebec,
British Columbia Civil Liberties
Association, Criminal
Lawyers’ Association of Ontario, John
Howard Society of
Canada and Canadian
Civil Liberties Association Interveners
Indexed as: R. v. Summers
2014 SCC 26
File No.: 35339.
2014: January 23; 2014: April 11.
Present: McLachlin C.J. and LeBel, Abella, Rothstein,
Cromwell, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for ontario
Criminal
law — Sentencing — Considerations — Credit for pre-sentence detention — Criminal
Code permitting enhanced credit at rate of up to one and one-half days for every
day of pre-sentence detention “if the circumstances justify it” — Sentencing
judge applying enhanced credit on basis of lost eligibility for early release
and parole — Whether lost opportunity for early release and parole during pre-sentence
detention can be circumstance capable of justifying enhanced credit at rate of
one and one-half to one — Criminal Code, R.S.C. 1985, c. C-46, ss. 719(3) ,
719(3.1) .
The
Truth in Sentencing Act , passed in 2009, changed the statutory regime
governing credit for pre-sentence detention. Parliament modified s. 719(3)
of the Criminal Code to limit credit for pre-trial custody “to a maximum
of one day for each day spent in custody”. Parliament also provided in s. 719(3.1)
that despite that limit, “if the circumstances justify it, the maximum is one
and one-half days for each day spent in custody”.
In
this case, the accused was on remand for 10.5 months. The sentencing
judge assigned a credit calculated at a rate of 1.5 to 1, on the basis that pre-trial
detention did not count towards parole eligibility for the accused. The judge
found that this was a circumstance justifying credit at a ratio of 1.5 to 1
under the Criminal Code . The Court of Appeal agreed and dismissed the
appeal.
Held: The appeal
should be dismissed.
When
an accused person is not granted bail, and must be remanded in jail awaiting
trial, the Criminal Code allows time served to be credited towards a
resulting sentence of imprisonment. Historically, the Code imposed no
restrictions on the reasons for giving credit, nor the rate at which credit was
granted.
Courts
generally gave enhanced credit, at a rate higher than one day for every day of
detention, for two reasons. First, statutory rules for parole eligibility and
early release do not take into account time spent in custody before sentencing.
Therefore, the quantitative rationale recognized that pre-sentence
detention almost always needs to be credited at a rate higher than 1:1 to
ensure that an offender who is released after serving two thirds of his
sentence serves the same total amount of time in jail whether or not he is
released on bail. Second, the qualitative rationale for enhanced credit
recognized that conditions in detention centres tended to be harsher than
corrections facilities. As a result of these twin rationales, a practice
developed over time of granting credit for pre-sentence detention at a rate of
2:1.
The
Truth in Sentencing Act caps pre-sentence credit, but does not alter the
reasons for which it may be assigned. Section 719(3.1) is free of any
language limiting the scope of what may constitute “circumstances” justifying
enhanced credit. While Parliament clearly turned its attention to the
circumstances under which s. 719(3.1) should not apply, the provision is
devoid of any limiting language which would support the position that
“circumstances” resulting from the operation of law, and specifically lost
eligibility for early release and parole, could not justify enhanced credit.
While
s. 719(3.1) is structured as an exception to s. 719(3) , there is no
general rule of statutory interpretation that the circumstances falling under
an exception must be numerically fewer than those falling under the general
rule. Therefore, it is not a concern that most remand offenders will qualify
for enhanced credit on the basis of lost eligibility for early release or
parole. Further, an interpretation of “circumstances” that includes loss of
eligibility for parole and early release does not render s. 719(3)
redundant. Where an accused falls under an explicit exception to s. 719(3.1),
the one-for-one cap set by s. 719(3) will apply. In addition, the
structure of s. 719 is consistent with the rationales for the existence of
pre-sentence credit. Section 719(3) reflects the general rationale for
giving credit; any time in jail should generally be credited day for day. On
the other hand, s. 719(3.1) reflects the rationale for enhanced credit.
Crediting a day in pre-sentence custody as a day served is insufficient to
account for both loss of eligibility for parole and early release
(circumstances with quantitative impact) and the harshness of the conditions
(circumstances with qualitative impact).
The
practice of using the former s. 719(3) to award enhanced credit for both
the quantitative and qualitative consequences of pre-sentence detention was
deeply entrenched in our sentencing system. It is inconceivable that
Parliament intended to overturn a principled and long-standing sentencing
practice, without using explicit language, by instead relying on inferences
that could possibly be drawn from the order of certain provisions in the Criminal
Code . Rather, it seems more likely that Parliament intended to do what it
did explicitly. The amendments clearly impose a cap on the rate at which
credit can be awarded, at 1.5 to 1. Having made its intention so clear on that
point, Parliament gave no indication it intended to alter the reasons for which
enhanced credit can be granted. Neither the language of the provision nor the
external evidence demonstrates a clear intention to abolish one of the
principled rationales for enhanced credit.
As
the legislature is presumed to have created a coherent, consistent and
harmonious statutory scheme, s. 719 should be interpreted in a manner that
is consistent with the principles and purposes of sentencing set out in the Criminal
Code . A rule that results in longer sentences for offenders who do not
obtain bail, compared to otherwise identical offenders is incompatible with the
sentencing principles of parity and proportionality. This is particularly so,
given that vulnerable and impoverished offenders are less able to access bail.
The
loss of early release, taken alone, will generally be a sufficient basis to
award credit at the rate of 1.5 to 1, even if the conditions of detention are
not particularly harsh, and parole is unlikely. However, if it appears to a
sentencing judge that an offender will be denied early release, there is no
reason to assign enhanced credit for the meaningless lost opportunity. The
onus is on the offender to demonstrate that he should be awarded enhanced
credit based upon his pre-sentence detention. Of course, the Crown may
challenge the inference that the offender has lost eligibility for parole or
early release, justifying enhanced credit. Extensive evidence will rarely be
necessary. A practical approach is required that does not complicate or
prolong the sentencing process.
Here,
the sentencing judge did not err in law by granting enhanced credit under s. 719(3.1)
on the basis of the accused’s loss of eligibility for early release and
parole. There is no serious challenge to the conclusion that the accused was
likely to access early release. It was therefore appropriate to grant credit
at a rate of 1.5 days for every day in detention on the basis of the
quantitative rationale for enhanced credit.
Cases Cited
Referred
to: R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455; R. v. Bradbury,
2013 BCCA 280, 339 B.C.A.C. 169; R. v. Carvery, 2012 NSCA 107, 321
N.S.R. (2d) 321; R. v. Stonefish, 2012 MBCA 116, 288 Man. R. (2d) 103; R.
v. Johnson, 2013 ABCA 190, 85 Alta. L.R. (5th) 320; R. v. Cluney,
2013 NLCA 46, 338 Nfld. & P.E.I.R. 57; R. v. Henrico, 2013 QCCA 1431
(CanLII); R. v. Rezaie (1996), 31 O.R. (3d) 713; Rizzo & Rizzo
Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Bell ExpressVu Limited Partnership
v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Townsend v. Kroppmanns,
2004 SCC 10, [2004] 1 S.C.R. 315.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
s. 24(1) .
Corrections and Conditional Release Act,
S.C. 1992, c. 20, ss. 120 , 127(3) .
Criminal Code, R.S.C. 1985, c. C-46,
ss. 457(1) , (2) , 515(9.1) , 524(4) , (8) , 672.14(3) , 672.47(2) , Part XXIII,
718, 718.1, 718.2, 719(1), (3), (3.1), (3.2), (3.3), 742.6(16), 745.
Interpretation
Act, R.S.C. 1985, c. I-21, s. 14 .
Ministry
of Correctional Services Act, R.S.O. 1990, c. M.22, ss. 28, 28.1.
Prisons
and Reformatories Act, R.S.C. 1985, c. P-20, s. 6 .
Truth
in Sentencing Act, S.C. 2009, c. 29 .
Authors Cited
Babooram, Avani. “The changing profile of
adults in custody, 2006/2007” (2008), 28:10 Juristat 1 (online:http://www.statcan.gc.ca/pub/85-002-x/2008010/article/10732-eng.pdf).
Canada. House of Commons. Standing Committee on Justice and Human
Rights. Evidence, No. 20, 2nd Sess., 40th Parl., May 6, 2009,
p. 11.
Canada. Senate. Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs, No. 14, 2nd Sess., 40th Parl., September
30, 2009, pp. 27-30.
Ruby, Clayton C., Gerald J. Chan and Nader R. Hasan.
Sentencing, 8th ed. Markham, Ont.: LexisNexis, 2012.
Sullivan, Ruth. Sullivan on the Construction of Statutes,
5th ed. Markham, Ont.: LexisNexis, 2008.
APPEAL
from a judgment of the Ontario Court of Appeal (Cronk, Pepall and Tulloch
JJ.A.), 2013 ONCA 147, 114 O.R. (3d) 641, 304 O.A.C. 322, 297 C.C.C. (3d) 166,
279 C.R.R. (2d) 289, 3 C.R. (7th) 125, [2013] O.J. No. 1068 (QL), 2013
CarswellOnt 2626, affirming a sentencing decision of Glithero J., [2011]
O.J. No. 6377 (QL), 2011 CarswellOnt 16080. Appeal dismissed.
Gregory J. Tweney and Molly Flanagan, for the appellant.
J. Brennan Smart and Russell Silverstein, for the respondent.
Dennis Galiatsatos,
for the intervener the Director of Criminal and Penal Prosecutions of Quebec.
Ryan D. W. Dalziel and Anne Amos-Stewart, for the intervener the British
Columbia Civil Liberties Association.
Ingrid Grant, for the intervener the
Criminal Lawyers’ Association of Ontario.
Andrew S. Faith and Jeffrey
Haylock, for the intervener the John Howard Society of Canada.
Jasmine T. Akbarali and Josh Koziebrocki, for the intervener the Canadian Civil
Liberties Association.
The judgment of the Court was
delivered by
Karakatsanis J. —
I.
Introduction
[1]
When an accused person is not granted bail, and
must be remanded in jail awaiting trial, the Criminal Code, R.S.C. 1985,
c. C-46 , allows time served to be credited towards a resulting sentence of
imprisonment. A day in jail should count as a day in jail.
[2]
However, crediting a single day for every day
spent in a remand centre is often insufficient to account for the full impact
of that detention, both quantitatively and qualitatively. Time in a remand
centre does not count for the purposes of eligibility for parole, earned
remission or statutory release, and this can result in a longer term of actual
incarceration for offenders who were denied bail. Moreover, conditions in
remand centres tend to be particularly harsh; they are often overcrowded and
dangerous, and do not provide rehabilitative programs.
[3]
As a result, for many years courts frequently
granted “enhanced” credit: 2 days for each day spent in pre-sentence custody.
This practice was endorsed by this Court in R. v. Wust, 2000 SCC 18,
[2000] 1 S.C.R. 455. When conditions were exceptionally harsh, judges granted
credit at a rate of 3 to 1 or more.
[4]
The Truth in Sentencing Act, S.C. 2009,
c. 29 (TISA ), passed in 2009, amended the Criminal Code to cap
pre-sentence credit at a maximum of 1.5 days for every day in custody. The
purpose was to remove any incentive for an accused to drag out time in remand
custody, and to provide transparency so that the public would know what the fit
sentence was, how much credit had been given, and why.
[5]
In this case, the Court is called upon to
interpret these amendments. There is no dispute that Parliament imposed a cap
on enhanced credit at a rate of 1.5 to 1. However, there are conflicting lower
court decisions on when “enhanced” credit at a rate higher than 1 to 1 is available.
[6]
The statute does not definitively address the
issue, providing simply that enhanced credit is available when “the
circumstances justify it” (s. 719(3.1) ). The legislative history is
contradictory and inconclusive. We must interpret the provisions to determine
what “circumstances” justify enhanced credit of up to a rate of 1.5 to 1. The
appellant, the Attorney General of Ontario, argues that the loss of eligibility
for parole and statutory release cannot be a “circumstance” justifying enhanced
credit under the new s. 719(3.1) of the Criminal Code .[1] The Ontario Court of Appeal in this case and the Nova Scotia Court
of Appeal in the companion case, R. v. Carvery, 2012 NSCA 107, 321
N.S.R. (2d) 321, came to the opposite conclusion,[2] and held
that the loss of eligibility for parole and statutory release is a
“circumstance” that can justify enhanced credit.
[7]
In my view, while the Truth in Sentencing Act
caps pre-sentence credit, it does not limit the “circumstances” that justify
granting credit. Where Parliament intended to alter existing practice, as with
respect to the maximum amount of credit, it did so expressly. However, the
legislation excludes no particular “circumstances” from consideration. Had
Parliament intended to alter the well-established rule that enhanced credit
compensates for the loss of eligibility for early release, it would have done
so expressly.
II.
Statutory Provisions
[8]
This appeal concerns amendments to s. 719(3) of
the Criminal Code , resulting from the TISA . Sections 719(3) and 719(3.1)
now read (changes underlined):
(3) In determining the
sentence to be imposed on a person convicted of an offence, a court may take
into account any time spent in custody by the person as a result of the offence
but the court shall limit any credit for that time to a maximum of one day
for each day spent in custody.
(3.1) Despite subsection (3), if the circumstances justify
it, the maximum is one and one-half days for each day spent in custody unless
the reason for detaining the person in custody was stated in the record under
subsection 515(9.1) or the person was detained in custody under subsection
524(4) or (8) .
III.
Background
A.
Facts
[9]
On July 9, 2010, Sean Summers, the respondent,
violently shook his infant daughter, resulting in her death three days later.
He was initially arrested on a charge of second degree murder but, in April
2011, that information was withdrawn and he was charged with manslaughter. On
May 30, 2011, he pleaded guilty to manslaughter.
[10]
The respondent was in custody for a period of
10.5 months, from his arrest in July 2010 until he pleaded guilty and was
sentenced, in May 2011. There has been no suggestion that the conditions of
detention were unusually harsh.
B.
Sentencing Decision, [2011] O.J. No. 6377 (QL)
(S.C.J.)
[11]
Counsel agreed that an appropriate range for the
sentence was between eight and ten years’ imprisonment.
[12]
Defence counsel argued that the respondent
should receive credit at a rate of 1.5 days for every day in custody; the lost
eligibility for early release and parole while in remand custody was a
circumstance justifying the application of s. 719(3.1) of the Code.
The Crown did not object to granting credit for the first six months of
detention at a rate of 1.5 to 1; during this time, the accused was waiting for
a post-mortem report to be disclosed. As for the rest of the detention, the
Crown invited the judge to use his discretion in assessing credit.
[13]
The sentencing judge, Glithero J., of the
Ontario Superior Court of Justice, reasoned that the traditional practice of granting
credit at a rate of two days for every day in detention was based upon the fact
that time served on remand did not count towards parole eligibility. Since
most offenders are released on parole between the one-third and two-third marks
of their sentences, it would be inequitable not to give enhanced credit to
reflect time in pre-trial custody. The fact that pre-trial detention did not
count towards parole eligibility for the respondent was a circumstance
justifying credit at a ratio of 1.5:1 under s. 719(3.1) of the Code.
[14]
The judge sentenced the respondent to 8 years’
imprisonment, less a credit of 16 months for 10.5 months of pre-trial
detention. This resulted in a sentence of 6 years and 8 months.
C.
Ontario Court of Appeal, 2013 ONCA 147, 114 O.R.
(3d) 641
[15]
The Crown appealed on the basis that, under s.
719(3.1) , credit cannot be assigned at a rate of 1.5:1 solely to account for an
accused’s loss of eligibility for early release and parole.
[16]
Cronk J.A., writing for the Court of Appeal,
concluded that enhanced credit under s. 719(3.1) was not limited to exceptional
circumstances and could be justified on the basis of lost eligibility for early
release and parole. She engaged in a thoughtful and thorough interpretation of
s. 719(3.1) , considering the text of the TISA , its legislative history,
and the principles that underpin the Criminal Code sentencing scheme.
[17]
The Court of Appeal clarified that not every
remand offender will be granted enhanced credit under s. 719(3.1) on the basis
of lost eligibility for early release and parole. These may be circumstances
justifying credit, but only if the accused would probably have received early
release or parole. A judge retains the discretion to deny credit at the
enhanced rate, for example when an accused intentionally delayed proceedings.
Certain offenders are expressly excluded from s. 719(3.1) , and are
therefore entitled to no more than one-for-one pre-trial credit under s.
719(3) .
[18]
Given that there was no basis to conclude that
the respondent would have been denied parole or early release, there was no
error in granting enhanced credit at a rate of 1.5:1 to account for lost early
release and parole eligibility.
IV.
Issue
[19]
Is ineligibility for early release and parole
while on remand a “circumstance” that can justify granting enhanced credit for
pre-sentence custody under s. 719(3.1) of the Criminal Code ?
V.
Analysis
A.
Prior Regime for Crediting Pre-Sentence Custody
[20]
Prior to the enactment of the TISA in
2009, s. 719(3) of the Criminal Code simply provided that a sentencing
court “may take into account any time spent in custody by the person as a
result of the offence”. The Code imposed no restrictions on the reasons
for giving credit, nor the rate at which credit was granted. In R. v.
Rezaie (1996), 31 O.R. (3d) 713, Laskin J.A. of the Ontario Court of Appeal
explained the rationale for granting credit. He noted that
a judge should not deny credit without
good reason. To do so offends one’s sense of fairness. Incarceration at any
stage of the criminal process is a denial of an accused’s liberty. [p. 721]
[21]
This recognized that it would be unfair if a day
spent in custody, prior to sentencing, were not counted towards an offender’s
ultimate sentence. Otherwise, an offender who spent time in pre-sentence
custody would serve longer in jail than an identical offender who committed an
identical offence, but was granted bail. Thus, a day of incarceration requires
at least a credit of one day towards the sentence.
[22]
Courts generally gave enhanced credit in
recognition of the fact that “in two respects, pre-trial custody is even more
onerous than post-sentencing custody” (Rezaie, at p. 721). As Laskin
J.A. explained:
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 in custody
awaiting trial. [ibid.]
[23]
First, the quantitative rationale for the
practice of granting enhanced credit is to ensure that the offender does not
spend more time behind bars than if he had been released on bail.
[24]
Under the Corrections and Conditional Release
Act, S.C. 1992, c. 20 (CCRA ), parole becomes available
to a federal inmate after one third of the sentence has been served (s. 120 ),
and statutory release is available once two thirds of the sentence has been
served (s. 127(3) ). Provincial inmates can earn essentially equivalent “earned
remission”, absent bad conduct, credited at 15 days per month as calculated
under the federal Prisons and Reformatories Act, R.S.C. 1985, c. P-20,
s. 6 .[3] Throughout these reasons, I refer to statutory release and earned
remission collectively as “early release”.
[25]
In practice, the “vast majority of those serving
reformatory sentences are released on ‘remission’ . . . at approximately the
two-thirds point in their sentence”, and only two to three percent of federal
prisoners are not released either by way of parole or “statutory release”: C.
C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at §§13.38
and 13.39.
[26]
Because a sentence begins when it is imposed (s.
719(1)) and the statutory rules for parole eligibility and early release do not
take into account time spent in custody before sentencing, pre-sentence
detention almost always needs to be credited at a rate higher than 1:1 in order
to ensure that it does not prejudice the offender.
[27]
A ratio of 1.5:1 ensures that an offender who is
released after serving two thirds of his sentence serves the same amount of
time in jail, whether or not he is subject to pre-sentence detention. A higher
ratio than 1.5:1 was therefore often used to account for other circumstances,
including the loss of parole eligibility (i.e., the loss of the opportunity to
be released after serving one third of the sentence).
[28]
The second rationale for enhanced credit is qualitative
in nature. Remand detention centres tend not to provide the educational,
retraining or rehabilitation programs that are generally available when serving
a sentence in corrections facilities. Consequently, time in pre-trial
detention is often more onerous than post-sentence incarceration. As Cronk
J.A. noted in this case, overcrowding, inmate turnover, labour disputes and
other factors also tend to make pre-sentence detention more onerous.
[29]
The impact of overcrowding, or a lack of
educational programs, varies depending on the particular offender’s needs,
character and disposition. Assigning enhanced credit on this basis is a
qualitative, fact-dependent and discretionary exercise.
[30]
As a result of these twin rationales, a practice
developed over time of granting credit for pre-sentence detention at a rate of
2:1. In Wust, this Court endorsed this practice, but noted that the
correct rate cannot be determined by a rigid formula, and is best left to the
sentencing judge.
[31]
For example, when an accused was detained in a
remand institution with full access to educational and rehabilitation programs,
credit at a ratio of less than 2:1 was sometimes appropriate (although some
enhanced credit was still generally appropriate to account for the quantitative
rationale). Similarly, when extended pre-sentence detention could be
attributed to bad conduct on the part of the accused (such as breaching bail
conditions), that militated against enhanced credit (Rezaie). By
contrast, when an offender was subjected to particularly harsh conditions,
rates as high as 3:1 or (rarely) 4:1 were sometimes applied.
B.
The Interpretation of Section 719(3.1)
[32]
In 2009, Parliament changed the statutory
regime governing credit for pre-sentence detention. As noted above, the TISA
amended s. 719 of the Criminal Code in two relevant ways. First,
Parliament modified s. 719(3) to limit credit for pre-trial custody “to a
maximum of one day for each day spent in custody”. Second, Parliament provided
in s. 719(3.1) that despite that limit, “if the circumstances justify it, the
maximum is one and one-half days for each day spent in custody” unless the
accused was detained pending trial for specific reasons such as breach of bail
conditions.
[33]
Our task in this case is to interpret these
provisions. Specifically, we must determine the meaning of “circumstances” in
s. 719(3.1) , and whether the lost opportunity for early release and parole in
pre-sentence detention can be such a circumstance, capable of justifying
enhanced credit at a rate of 1.5:1.
[34]
I conclude that loss of access to parole and
early release constitutes a “circumstance” capable of justifying enhanced
credit. In reaching this conclusion, I am in substantial agreement with the
exemplary reasons of both Cronk J.A. in this case, and Beveridge J.A. in the
companion case Carvery.
[35]
In the reasons that follow, I discuss: (1) the
text of the provision, (2) the structure of the section, (3) the intention of Parliament,
and (4) the scheme of the Criminal Code (see Rizzo & Rizzo Shoes
Ltd. (Re), [1998] 1 S.C.R. 27). In my view, the meaning of the
provision is clear on the basis of conventional principles of statutory
interpretation, and it is therefore neither appropriate nor necessary to have
recourse to the presumption that the legislation conforms to the Canadian
Charter of Rights and Freedoms : see Bell ExpressVu Limited
Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at paras.
28-30 and 61-66.
(1)
The Text of the Provision
[36]
Section 719(3.1) reads as follows:
(3.1)
Despite subsection (3), if the circumstances justify it, the maximum is one and
one-half days for each day spent in custody unless the reason for detaining the
person in custody was stated in the record under subsection 515(9.1) or the
person was detained in custody under subsection 524(4) or (8) .
[37]
As Beveridge J.A. and Cronk J.A. noted, this
provision is free of any language limiting the scope of what may constitute
“circumstances”. The legislature could easily have provided that only
“exceptional circumstances” or “circumstances other than the loss of
eligibility for early release and parole” justify enhanced credit.
[38]
As Cronk J.A. observed, language limiting the
scope of the word “circumstances” is used elsewhere in the Criminal Code .
For example, reference is made to “exceptional circumstances” or “compelling
circumstances” in s. 672.14(3) (fitness assessments last no longer than
30 days, except they may last for 60 if “compelling circumstances” so warrant),
s. 672.47(2) (when an accused is found unfit to stand trial, a disposition must
be made within 45 days but, in “exceptional circumstances”, may be made within
90 days) and s. 742.6(16) (when an offender breaches a conditional sentence
order, in “exceptional cases” some of the suspended sentence may be deemed to
be time served).
[39]
The absence of qualifications on “circumstances”
in s. 719(3.1) is telling since Parliament did restrict enhanced credit,
withholding it from offenders who have been denied bail primarily as a result
of a previous conviction (s. 515(9.1) ), those who contravened their bail
conditions (ss. 524(4) (a) and 524(8) (a)), and those who committed
an indictable offence while on bail (ss. 524(4) (b) and 524(8) (b)).
Parliament clearly turned its attention to the circumstances under which s.
719(3.1) should not apply, but did not include any limitations on the
scope of “circumstances” justifying its application.
[40]
Consequently, at the hearing before this Court,
the Crown conceded that the circumstances referred to in s. 719(3.1) need not
be exceptional. Instead, the Crown took the position that “circumstances”
resulting from operation of law, and specifically lost eligibility for early
release and parole, could not justify enhanced credit. The Crown argues that
“circumstances” suggest facts that are particular to the offender and do not
include those consequences that are universal and inherent to the statutory
regime.
[41]
However, the provision is devoid of any limiting
language supporting this interpretation. Moreover, the impact of the
legal regime is a circumstance that is particular to each offender because the
law affects offenders differently. For example, the loss of parole or early
release eligibility will not make a difference to offenders who would not have
received early release or parole in any event. Moreover, the legislation can
change over time such that its impact on offenders becomes less uniform.
(2)
Structure of the Section
[42]
The Crown submits that s. 719(3) creates a
general rule of credit at a rate of 1:1, to which s. 719(3.1) is an exception.
If lost eligibility for early release or parole, while in pre-sentence custody,
is a “circumstance” justifying enhanced credit of 1.5:1, then almost every
remand offender will qualify. This would transform the “exception” into the
new “general rule” and render s. 719(3) irrelevant, an absurd result.
[43]
I agree that s. 719(3.1) is structured as an
exception to s. 719(3) . Section 719(3.1) begins with the words “[d]espite
subsection (3)” and applies only when “circumstances justify it”, which tends
to indicate that it is an exception to the general rule. While marginal notes
are not part of the enactment and are of limited value in statutory
interpretation (Interpretation Act, R.S.C. 1985, c. I-21, s. 14 ), the
fact that the subsection has the marginal note “[e]xception” is consistent with
this conclusion.
[44]
I also agree with the Crown that it is somewhat
inelegant to create an exception that applies in more cases than the general
rule. However, the strength of this argument is limited for three reasons.
[45]
First, there is no general rule of statutory
interpretation that the circumstances falling under an exception must be
numerically fewer than those falling under the general rule. If the criteria
that permit departure from a general proposition are satisfied, the numerical
relationship is not relevant.
[46]
For example, s. 457(1) of the Code makes
it an offence to make, publish, print, execute, issue, distribute or circulate
anything in the likeness of a current bank-note. However, s. 457(2) provides
exceptions, including for the Bank of Canada, its employees carrying out their
duties and its contractors. Presumably, the overwhelming majority of
bank-notes are produced by the Bank of Canada, its employees, and its
contractors, and therefore fall under the exception.
[47]
Indeed, Crown counsel accepts that the lack of
programs in detention facilities and overcrowding are common problems, and
could result in exceptions under s. 719(3.1) that are numerically greater than
those limited by s. 719(3) .
[48]
Second, an interpretation of “circumstances”
that includes loss of eligibility for parole and early release does not render
subsection (3) redundant. Where an accused falls under an explicit exception
to s. 719(3.1) (for instance, because she has been detained for breach of bail
conditions), the one-for-one cap set by s. 719(3) will apply. Moreover,
enhanced credit need not be granted in every case. For example, when long
periods of pre-sentence detention are attributable to the wrongful conduct of
the offender, enhanced credit will often be inappropriate. Section 719(3)
continues to exist for such cases.
[49]
Third, the structure of s. 719 is consistent
with the rationales for the existence of pre-sentence credit. Section 719(3)
reflects the general rationale for giving credit. As Laskin J.A. wrote in Rezaie,
at p. 721, “[i]ncarceration at any stage of the criminal process is a denial of
an accused’s liberty” ― any time in jail should generally be credited day
for day. On the other hand, s. 719(3.1) reflects the rationale for enhanced
credit. Crediting a day in pre-sentence custody as a day served is
insufficient to account for the full prejudicial circumstances of remand
custody; enhanced credit accounts for both loss of eligibility for parole and
early release (circumstances with quantitative impact) and the harshness of the
conditions (circumstances with qualitative impact). Thus, the division between
the subsections reflects the different theoretical underpinnings of credit and
enhanced credit.
[50]
Further, this structure builds resilience into
the statutory scheme. For example, if Parliament were to amend the Corrections
and Conditional Release Act , so that pre-sentence custody counted for the
purposes of parole eligibility and early release,[4] s.
719(3.1) would only be called upon to account for situations of qualitative
harshness, and an increased number of cases would fall solely under s. 719(3) .
The structure of the provision logically mirrors the rationales for credit and
enhanced credit.
(3)
Intention of Parliament
[51]
The intention of Parliament can be determined
with reference to the legislative history, including Hansard evidence and
committee debates, although the court should be mindful of the limited
reliability and weight of such evidence (R. Sullivan, Sullivan on the
Construction of Statutes (5th ed. 2008), at pp. 593-94 and 609).
[52]
Parliament clearly intended to restrict the
amount of pre-sentence credit. This is plain from the cap of 1.5 days credit
for every day spent in detention. It is also consistent with statements made
by the then-Justice Minister, before the House of Commons Standing Committee on
Justice and Human Rights, on May 6, 2009:
The practice
of awarding overly generous credit can put the administration of justice into
disrepute because it creates the impression that offenders are getting more
lenient sentences than they deserve. The public does not understand how the
final sentence reflects the seriousness of the crime. For these reasons, the
current practice of routinely awarding two-for-one credit must be curtailed.
(Evidence, No. 20,
2nd Sess., 40th Parl., at p. 11)
This objective is
achieved regardless of what circumstances may justify the use of enhanced
credit in s. 719(3.1) .
[53]
Parliament also intended that the process of
granting credit under s. 719 should be more transparent and easily
understood by the public. It achieved this end through the insertion of ss.
719(3.2) and 719(3.3), which provide that judges should give reasons for
granting credit and state both the fit sentence and the amount of credit
granted.
[54]
However, I agree with Beveridge J.A. and Cronk
J.A. that the intention of Parliament with respect to what “circumstances” may
justify enhanced credit under s. 719(3.1) is far less clear and even
contradictory (Carvery, at paras. 79-82; Summers, at paras.
82-88). Therefore, the legislative history is of no assistance in answering
this question.
[55]
Parliament is presumed to know the legal context
in which it legislates.[5] The practice of using the former s. 719(3) to award enhanced credit
for both the quantitative and qualitative consequences of pre-sentence
detention was deeply entrenched in our sentencing system. This practice was
expressly endorsed by this Court in Wust, where the Court identified the
loss of eligibility for early release and parole as a reason justifying
enhanced credit.
[56]
Parliament does, of course, have the power to
exclude these circumstances from consideration (barring a constitutional
challenge). However, it strikes me as inconceivable that Parliament intended
to overturn a principled and long-standing sentencing practice, without using
explicit language, by instead relying on inferences that could possibly be
drawn from the order of certain provisions in the Criminal Code .
[57]
Rather, it seems more likely that Parliament
intended to do what it did explicitly. The amendments clearly impose a cap
on the rate at which credit can be awarded, at 1.5:1. This is a substantial
and clear departure from pre-TISA practice. Having made its intention
so clear on that point, Parliament gave no indication it intended to alter the
reasons for which enhanced credit can be granted.
[58]
In my view, neither the language of the
provision nor the external evidence demonstrates a clear intention to abolish
one of the principled rationales for enhanced credit.
(4)
Scheme of the Sentencing Regime
[59]
While the foregoing is sufficient to dispose of
the appeal, I recognize that ss. 719(3) and 719(3.1) do not exist in isolation,
but form part of the overall sentencing scheme in the Criminal Code . As
the legislature is presumed to have created a coherent, consistent and
harmonious statutory scheme, s. 719 should be interpreted in a manner that is
consistent with the principles and purposes of sentencing set out in Part XXIII
of the Criminal Code . Sections 718, 718.1 and 718.2 of the Code
provide:
718. The fundamental purpose of sentencing is to contribute, along with
crime prevention initiatives, to respect for the law and the maintenance of a
just, peaceful and safe society by imposing just sanctions that have one or
more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing
offences;
(c) to separate offenders from society, where
necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the
community; and
(f) to promote a sense of responsibility in offenders, and
acknowledgment of the harm done to victims and to the community.
718.1 A sentence must be proportionate to the gravity of the offence and
the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration
the following principles:
. . .
(b) a sentence should be similar to sentences imposed on
similar offenders for similar offences committed in similar circumstances;
[60]
As Beveridge J.A. and Cronk J.A. recognized, an
interpretation of s. 719(3.1) that does not account for loss of
eligibility for early release and parole during remand custody means that
offenders who do not receive bail will serve longer sentences than otherwise
identical offenders who are granted bail.
[61]
This result is incompatible with the parity
principle. A rule that results in longer sentences for offenders who do not
obtain bail, compared to otherwise identical offenders, does not result in
“similar . . . sentences imposed on similar offenders for similar offences
committed in similar circumstances”: s. 718.2(b).
[62]
The Crown says that parity does not require
absolute equality and that in any event, enhanced credit is an ineffective tool
to achieve equality between offenders, since it is premised on both being
released on their statutory release date (after two thirds of their sentence).
In practice, some offenders will be released on parole after one third of their
sentences; others will never be released during their sentence.
[63]
Obviously, the scope of the disparity will vary,
depending on if and when offenders are ultimately released. Nonetheless, a
rule that creates structural differences in sentences, based on criteria
irrelevant to sentencing, is inconsistent with the principle of parity.
[64]
The Crown also says that the Court of Appeal’s
reliance on the sentencing principle of proportionality was misplaced.
Proportionality is simply concerned with the imposition of a just sanction in a
particular case; any comparison with similar offenders is irrelevant.
[65]
However, it is difficult to see how sentences
can reliably be “proportionate to the gravity of the offence and the degree of
responsibility of the offender” (s. 718.1) when the length of incarceration is
also a product of the offender’s ability to obtain bail, which is frequently
dependent on totally different criteria.
[66]
Judicial interim release requires the judge to
be confident that, amongst other things, the accused will neither flee nor
reoffend while on bail. When an accused is able to deposit money, or be
released to family and friends acting as sureties (who often pledge money
themselves), this can help provide the court with such assurance.
Unfortunately, those without either a support network of family and friends or
financial means cannot provide these assurances. Consequently, as the
intervener the John Howard Society submitted, this means that vulnerable and
impoverished offenders are less able to access bail.
[67]
For example, Aboriginal people are more likely
to be denied bail, and make up a disproportionate share of the population in
remand custody.[6] A system that results in consistently longer, harsher sentences
for vulnerable members of society, not based on the wrongfulness of their
conduct but because of their isolation and inability to pay, can hardly be said
to be assigning sentences in line with the principles of parity and proportionality.
Accounting for loss of early release eligibility through enhanced credit
responds to this concern.
(5)
Conclusion
[68]
For these reasons, I conclude that the
“circumstances” justifying enhanced credit under s. 719(3.1) may include loss
of eligibility for early release and parole.
[69]
To conclude otherwise, it would be necessary for
the Court to read limiting language into s. 719(3.1) that is simply not there.
Such an interpretation would result in sentences inconsistent with the Code’s
own statement of principles, and would presume that the legislature intended to
abolish the quantitative rationale for enhanced credit — that offenders should
not be punished more severely because they were not released on bail — without
clear language. And this despite the well-established practice, endorsed by
this Court in Wust in the year 2000, that enhanced credit can be
justified based upon the loss of eligibility for parole and early release.
Such a conclusion is not plausible.
C.
How to Calculate Pre-Sentence Credit
(1)
Analytical Approach
[70]
In determining credit for pre-sentence custody,
judges may credit at most 1.5 days for every day served where circumstances
warrant. While there is now a statutory maximum, the analytical approach
endorsed in Wust otherwise remains unchanged. Judges should continue to
assign credit on the basis of the quantitative rationale, to account for lost
eligibility for early release and parole during pre-sentence custody, and the
qualitative rationale, to account for the relative harshness of the conditions
in detention centres.
[71]
The loss of early release, taken alone, will
generally be a sufficient basis to award credit at the rate of 1.5 to 1, even
if the conditions of detention are not particularly harsh, and parole is
unlikely. Of course, a lower rate may be appropriate when detention was a
result of the offender’s bad conduct, or the offender is likely to obtain
neither early release nor parole. When the statutory exceptions within
s. 719(3.1) are engaged, credit may only be given at a rate of 1 to 1.
Moreover, s. 719 is engaged only where the pre-sentence detention is a result
of the offence for which the offender is being sentenced.
[72]
This means that two offenders, one of whom lost
the opportunity for early release and parole, and a second who, in addition to
losing those opportunities, was also subject to extremely harsh conditions,
will likely both have credit assigned at a rate of 1.5 to 1. The unavoidable
consequence of capping pre-sentence credit at this rate is that it is
insufficient to compensate for the harshness of pre-sentence detention in all
cases. However, this does not mean that credit should be scaled back in order
to “leave room at the top” of the scale for the most egregious cases. A cap is
a cut-off and means simply that the upper limit will be reached in more cases.
It should not lead judges to deny or restrict credit when it is warranted.
[73]
Indeed, individuals who have suffered
particularly harsh treatment, such as assaults in detention, can often look to
other remedies, including under s. 24(1) of the Charter .
[74]
The sentencing judge is also required to give
reasons for any credit granted (s. 719(3.2)) and to state “the amount of time
spent in custody, the term of imprisonment that would have been imposed before
any credit was granted, the amount of time credited, if any, and the sentence
imposed” (s. 719(3.3)). This is not a particularly onerous requirement, but
plays an important role in explaining the nature of the sentencing process, and
the reasons for giving credit, to the public.
(2)
The Particular Offender’s Prospects of Early
Release
[75]
For many offenders, the loss of eligibility for
early release and parole will justify credit at a rate of 1.5:1. However, as
Beveridge J.A. concluded, it is not an “automatic or a foregone conclusion that
a judge must grant credit at more than 1:1 based on loss of remission or
parole” (Carvery, at para. 60). If it appears to a sentencing judge
that an offender will be denied early release, there is no reason to assign
enhanced credit for the meaningless lost opportunity.
[76]
As Beveridge J.A. wrote:
. . . it would not
be onerous for most offenders to establish that they would have earned
remission or been granted parole, and hence, it is not likely to be a rare
occurrence for an offender to be worthy of a credit of more than 1:1. [para.
66]
[77]
The Crown says it is not appropriate for the
sentencing court to inquire into the likelihood that a particular offender will
receive parole because considerations relating to the administration of the
sentence are irrelevant to sentencing. Further, it is improper to reduce a
sentence by granting enhanced credit based on speculation about when the
offender may be released.
[78]
However, judges are often called upon to make
assessments about an offender’s future, for example by considering prospects
for rehabilitation. I see no reason why judges cannot draw similar inferences
with respect to the offender’s future conduct in prison and the likelihood of
parole or early release.
[79]
The process need not be elaborate. The onus is
on the offender to demonstrate that he should be awarded enhanced credit as a
result of his pre-sentence detention. Generally speaking, the fact that
pre-sentence detention has occurred will usually be sufficient to give rise to
an inference that the offender has lost eligibility for parole or early
release, justifying enhanced credit. Of course, the Crown may respond by
challenging such an inference. There will be particularly dangerous offenders
who have committed certain serious offences for whom early release and parole
are simply not available.[7] Similarly, if the accused’s conduct in jail suggests that he is
unlikely to be granted early release or parole, the judge may be justified in
withholding enhanced credit. Extensive evidence will rarely be necessary. A
practical approach is required that does not complicate or prolong the
sentencing process.
[80]
As well, when evaluating the qualitative
rationale for granting enhanced credit, the onus is on the offender, but it
will generally not be necessary to lead extensive evidence. Judges have dealt
with claims for enhanced credit for many years. The conditions and
overcrowding in remand centres are generally well known and often subject to
agreement between the parties; there is no reason this helpful practice should
not continue. There is no need for a new and elaborate process — the TISA
introduced a cap on the amount of enhanced credit that may be awarded, but did
not alter the process for determining the amount of credit to apply.
(3)
No Double Counting
[81]
The intervener the Quebec Director of Criminal
and Penal Prosecutions argues that factors based on the personal circumstances
of a particular inmate, with no relation to the conditions in which he or she
was detained, cannot justify enhanced credit under s. 719(3.1) .
[82]
It has long been recognized that credit for
pre-sentence detention is intended to ensure that individuals are punished equally,
whether they are released on bail or remanded in custody prior to trial.
Consequently, any circumstances that speak to the relative harshness of
pre-sentence custody, as opposed to serving a sentence, are relevant.
[83]
On this basis, it is difficult to see how
factors such as reduced moral culpability of the offender, or the fact that it
was a first conviction, could be relevant circumstances with respect to the relative
harshness of pre-trial detention. The fact that the respondent entered an
early guilty plea, accepted responsibility for his actions, and expressed
sincere remorse are generally only relevant to the determination of a fit
sentence and not to assigning credit under s. 719(3) or s. 719(3.1) . To
consider them again is what was described as “double dipping”.
VI.
Application to the Facts
[84]
The sentencing judge did not err in law by
granting enhanced credit under s. 719(3.1) on the basis of the
respondent’s loss of eligibility for early release and parole.
[85]
The sentencing judge in this case did not rely
on improper factors in assessing credit for pre-trial detention. In his
analysis of the appropriate credit, the judge focused on the lack of access to
parole, not the respondent’s guilty plea and remorse (paras. 39-43). His
discussion of the latter factors was directed at sentencing generally.
[86]
To the extent Cronk J.A. referred to these
considerations, at para. 124 of her decision, I take her to be suggesting they
are relevant for the limited purpose of determining whether the respondent was
likely to be granted parole (which is relevant to whether the respondent, in
fact, lost the opportunity for parole and early release). She did not treat
them as independent circumstances justifying enhanced credit.
[87]
I agree with Cronk J.A. that there was no basis
to think that the respondent would be denied parole or early release. She said
of Crown counsel at trial:
By her reference to the likelihood of
early parole for the respondent, she also conceded, in effect, the respondent’s
good behaviour while in remand custody. Certainly, she did not suggest that
the respondent’s conduct would in any way disentitle him to earned remission or
negatively affect his statutory release and parole eligibility. [para. 125]
[88]
While little evidence was available on this
point, there is no serious challenge to the conclusion that the respondent was
likely to access parole and early release. Therefore, it was appropriate to
grant credit at a rate of 1.5 days for every day in detention on the basis of
the quantitative rationale for enhanced credit.
[89]
I would dismiss the appeal.
Appeal
dismissed.
Solicitor
for the appellant: Attorney General of Ontario, Toronto.
Solicitors
for the respondent: Brennan Smart Law Office, Kitchener; Russell
Silverstein & Associate, Toronto.
Solicitor
for the intervener the Director of Criminal and Penal Prosecutions of Quebec: Director
of Criminal and Penal Prosecutions of Quebec, Montréal.
Solicitors
for the intervener the British Columbia Civil Liberties
Association: Bull, Housser & Tupper, Vancouver.
Solicitors
for the intervener the Criminal Lawyers’ Association of Ontario: Russell
Silverstein & Associate, Toronto.
Solicitors
for the intervener the John Howard Society of Canada: Polley Faith,
Toronto.
Solicitors for the
intervener the Canadian Civil Liberties Association: Lerners,
Toronto.
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