SUPREME
COURT OF CANADA
Between:
Calvin
Clarke
Appellant
and
Her
Majesty The Queen
Respondent
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Karakatsanis
and Wagner JJ.
Reasons for
Judgment:
(paras. 1 to 19)
|
Abella J. (McLachlin C.J. and LeBel, Rothstein, Cromwell, Karakatsanis
and Wagner JJ. concurring)
|
Appeal heard and Judgment
rendered: January 24, 2014
Reasons delivered: April
11, 2014
R.
v. Clarke,
2014 SCC 28, [2014] 1 S.C.R. 612
Calvin Clarke Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Clarke
2014 SCC 28
File No.: 35487.
Hearing and judgment: January 24, 2014.
Reasons delivered: April 11, 2014.
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 — Legislation — Interpretation — Truth in Sentencing Act
providing that changes to how much credit given for pre-sentence custody “apply
only to persons charged after” Act came into force — Accused committed offences
before Truth in Sentencing Act came into force, but charged after Act came into
force — Whether s. 5 of Truth in Sentencing Act applies only to offenders
charged after amendments have come into force regardless of when offences were
committed — Truth in Sentencing Act, S.C. 2009, c. 29, s. 5 .
Section 5
of the Truth in Sentencing Act states that the caps on how much credit
should be given for pre-sentence custody “apply only to persons charged after”
the Act came into force. The accused committed the offences for which
he was convicted before the Act came into force but he was charged after
the Act came into force. He argued that since he committed the offences
before the Act came into force, the caps did not apply to him. He did
not challenge the constitutionality of the provision. The trial judge and the
Court of Appeal held that the impugned provision unambiguously applied.
Held:
The appeal should be dismissed.
While
it is true that new sentencing legislation is presumed not to apply
retrospectively, in the absence of a constitutional challenge the presumption
can be displaced by a clear legislative direction that a provision is to apply
retrospectively. In this case, the language used in s. 5 of the Truth
in Sentencing Act is unambiguous. In the absence of ambiguity the court
must give effect to the clearly expressed legislative intent. The application
of the interpretive assistance of Charter values is precluded by this
absence of ambiguity. Section 5 states clearly that the new provisions
apply to persons charged after the Truth in Sentencing Act came into
force. The only triggering event is when the person was charged, regardless of
when the offences were committed. The presumption is therefore rebutted.
In
this case, the accused was charged after the Truth in Sentencing Act
came into force. He was therefore subject to the credit limits for pre-sentence
custody in accordance with s. 5 .
Cases Cited
Referred
to: R. v. Serdyuk, 2012 ABCA 205, 68 Alta. L.R. (5th) 152; R. v.
A.A.M., 2013 NLCA 26, 335 Nfld. & P.E.I.R. 199; R. v. Wust, 2000
SCC 18, [2000] 1 S.C.R. 455; R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R.
575; R. v. Carvery, 2014 SCC 27, [2014] 1 S.C.R. 605; R. v. Dineley,
2012 SCC 58, [2012] 3 S.C.R. 272; Bell ExpressVu Limited Partnership v. Rex,
2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Rodgers, 2006 SCC 15, [2006] 1
S.C.R. 554; R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584; R. v.
Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Application under s. 83.28
of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248; Doré v.
Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms .
Criminal Code, R.S.C. 1985, c. C-46,
s. 719(3) , (3.1) .
Truth in Sentencing Act, S.C. 2009,
c. 29, ss. 3 , 5 .
APPEAL
from a judgment of the Ontario Court of Appeal (Laskin, Goudge and
Gillese JJ.A.), 2013 ONCA 7, 115 O.R. (3d) 75, 302 O.A.C. 40, 293 C.C.C.
(3d) 369, 274 C.R.R. (2d) 370, [2013] O.J. No. 94 (QL), 2013 CarswellOnt
263, affirming a sentencing decision of O’Donnell J. Appeal dismissed.
Diana Lumba, for the appellant.
Mabel Lai, for the respondent.
The
judgment of the Court was delivered by
[1]
Abella J. — Sentencing legislation will not be given retrospective application
unless the legislation unequivocally states that it is to have retrospective
effect. This does not immunize it from a Charter challenge, but if no
such challenge is brought, the ordinary rules of statutory interpretation
apply. This is not to suggest that these rules exclude Charter values
as one aspect of the broader interpretive context contemplated by our “modern
rule of interpretation”, but that is different from using those values to create
ambiguity when none exists.
[2]
The focus of this appeal is on s. 5 of the Truth
in Sentencing Act ,[1] a brief provision which says that the caps on how much credit
should be given for pre-sentence custody “apply only to persons charged after”
the Act came into force. The marginal note to s. 5 says “Application —
persons charged after coming into force”.
[3]
The accused in this case, Calvin Clarke, did
not bring a constitutional challenge to s. 5 . Nor did he allege abuse of
process. His argument instead was that the provision was ambiguous and that
the appropriate interpretive exercise involved the application of Charter
values.
[4]
With respect for those with a different view (R. v. Serdyuk (2012), 68 Alta. L.R. (5th) 152 (C.A.), and R. v. A.A.M. (2013), 335 Nfld. & P.E.I.R. 199 (N.L.C.A.)), I agree with the trial judge and Court of Appeal in this case that
the impugned provision unambiguously applies only to those offenders charged
after the amendments came into force, regardless of when the offences were
committed. In the absence of a Charter challenge, this ends the
interpretive exercise.
Analysis
[5]
Prior to the enactment of the Truth in
Sentencing Act , judges routinely exercised their discretion to give
offenders extra credit for time spent in custody awaiting sentencing at a ratio
higher than one day of credit for every day in custody. This was a reflection
of the reality that unlike custody after sentencing, pre-sentence custody
conditions were often harsher, remedial programs were unavailable and time
spent in custody did not count for the purposes of early release (statutory
release or remission) (R. v. Wust, [2000] 1 S.C.R. 455). Credit was
usually given at a rate of two days for every day served in pre-sentence
custody, but could be higher depending on the offender’s pre-sentence custodial
circumstances.
[6]
Section 3 of the Truth in Sentencing Act
restricted this discretion by limiting it to “a maximum of one day for each
day” in “custody” (Criminal Code, R.S.C. 1985, c. C-46, s. 719(3) )
unless “the circumstances” justified an increase to a maximum of one and a half
days (s. 719(3.1) ). Those provisions are the subject of two decisions of this
Court which are being concurrently released: R. v. Summers, [2014]
1 S.C.R. 575, and R. v. Carvery, [2014] 1 S.C.R. 605. These
decisions considered what “circumstances” would justify an increase to the
maximum allowable credit.
[7]
On February 20 and 21, 2010, Mr. Clarke
committed a number of offences, including break and enter. The amendments were
enacted on February 22, 2010. He was charged in March, 2010.
[8]
Mr. Clarke pleaded guilty on November 10, 2010
and was sentenced to 10 years. The trial judge gave him the maximum allowable
credit under the amendments of one and a half days for each day spent in
pre-sentence custody. His sentence was therefore reduced by 17 months.
[9]
Mr. Clarke argued unsuccessfully at trial and
before the Court of Appeal that on a proper interpretation of s. 5 , the Truth
in Sentencing Act did not apply to him because the offences were
committed before the legislation came into force and he was therefore entitled
to the two or three days’ credit that was available when the offences were
committed. Rather than bring a direct Charter challenge, he argued that
the provision was ambiguous and that Charter values should therefore be
applied in a way that gave s. 5 prospective effect.
[10]
It is true that new sentencing legislation
should be presumed not to apply retrospectively (R. v. Dineley, [2012] 3
S.C.R. 272). The presumption can be displaced, however, by a clear legislative
direction that a provision is to apply retrospectively. The requirement for
clarity, as Deschamps J. noted in Dineley, ensures that
the cases in which legislation has
retrospective effect must be exceptional. . . . New legislation that affects
substantive rights will be presumed to have only prospective effect unless it
is possible to discern a clear legislative intent that it is to apply retrospectively
. . . . [para. 10]
[11]
In this case, the language is sufficiently clear
to rebut the presumption. With respect, it is difficult to find a less
ambiguous expression of statutory intent than in the simple language of s. 5 .
It states clearly that the new provisions apply to persons charged after the Act
came into force. The only triggering event is when the person was charged,
regardless of when the offences were committed.
[12]
The absence of ambiguity also precludes the
application of the interpretive assistance of Charter values, which only
play a role if there is genuine ambiguity as to the meaning of a provision (Bell
ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, and R.
v. Rodgers, [2006] 1 S.C.R. 554). If the statute is unambiguous, the
court must give effect to the clearly expressed legislative intent.
[13]
The role of Charter values in
interpreting statutes was explained by Iacobucci J. in Bell ExpressVu as
follows:
. .
. to the extent this Court has recognized a “Charter values”
interpretive principle, such principle can only receive application in
circumstances of genuine ambiguity, i.e., where a statutory provision is
subject to differing, but equally plausible, interpretations. [Emphasis in
original; para. 62.]
. . .
.
. . a blanket presumption of Charter consistency could sometimes
frustrate true legislative intent, contrary to what is mandated by the
preferred approach to statutory construction. . . . [para. 64]
. . .
. .
. if courts were to interpret all statutes such that they conformed to the Charter ,
this would wrongly upset the dialogic balance. Every time the principle were
applied, it would pre-empt judicial review on Charter grounds, where
resort to the internal checks and balances of s. 1 may be had. In this fashion,
the legislatures would be largely shorn of their constitutional power to enact
reasonable limits on Charter rights and freedoms, which would in turn be
inflated to near absolute status. Quite literally, in order to avoid this
result a legislature would somehow have to set out its justification for
qualifying the Charter right expressly in the statutory text, all
without the benefit of judicial discussion regarding the limitations that are
permissible in a free and democratic society. Before long, courts would be
asked to interpret this sort of enactment in light of Charter
principles. The patent unworkability of such a scheme highlights the importance
of retaining a forum for dialogue among the branches of governance. As such,
where a statute is unambiguous, courts must give effect to the clearly
expressed legislative intent and avoid using the Charter to achieve a different
result. [Emphasis added; para. 66.]
[14]
In Rodgers, Charron J. confirmed these
interpretive borders in the criminal law context:
. .
. It has long been accepted that courts should apply and develop common law
rules in accordance with the values and principles enshrined in the Charter .
. . . However, it is equally well settled that, in the interpretation of a
statute, Charter values as an interpretative tool can only play a role
where there is a genuine ambiguity in the legislation. In other words, where
the legislation permits two different, yet equally plausible, interpretations,
each of which is equally consistent with the apparent purpose of the statute, it
is appropriate to prefer the interpretation that accords with Charter principles.
However, where a statute is not ambiguous, the court must give effect to the
clearly expressed legislative intent and not use the Charter to achieve a different
result. . . . [Emphasis added; para. 18.]
If
this limit were not imposed on the use of the Charter as an
interpretative tool, the application of Charter principles as an
overarching rule of statutory interpretation could well frustrate the
legislator’s intent in the enactment of the provision. Moreover, it would
deprive the Charter of its more powerful purpose — the determination of
the constitutional validity of the legislation . . . . [para. 19]
[15]
The requirement of statutory ambiguity as a
prerequisite to the application of Charter values was most recently
acknowledged in R. v. Mabior, [2012] 2 S.C.R. 584, where the
Chief Justice stated that Charter values are “always relevant” to the
interpretation of a “disputed” provision of the Criminal Code (para.
44). The two cases relied on by the Chief Justice for this proposition — R.
v. Sharpe, [2001] 1 S.C.R. 45, at para. 33 and Application under
s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, at para. 35 — both
assert that where more than one interpretation of a provision is equally
plausible, Charter values should be used to determine which
interpretation is constitutionally compliant.
[16]
Nor, with respect, is Mr. Clarke assisted by Doré
v. Barreau du Québec, [2012] 1 S.C.R. 395, which was referred to by the
Alberta Court of Appeal in Serdyuk. Only in the administrative law context is ambiguity not the
divining rod that attracts Charter values. Instead, administrative law
decision-makers “must act consistently with the values underlying the grant of
discretion, including Charter values” (Doré, at para. 24). The issue in the administrative context therefore, is
not whether the statutory language is so ambiguous as to engage Charter
values, it is whether the exercise of discretion by the administrative
decision-maker unreasonably limits the Charter protections in light of
the legislative objective of the statutory scheme.
[17]
In the case before us, as Laskin J.A. noted in
his inarguable reasons, “[t]he words of s. 5 are clear and admit of only one
meaning”, namely:
. .
. The new provisions apply to the sentencing of all persons charged after the
Act came into force, no matter when the offences were committed. . . . [T]o
give effect to the appellant’s position, one would have to read into s. 5 the
following underlined words:
[The
new provisions], as enacted by s. 3 , apply only to persons charged with an
offence committed after the day on which those [provisions] come into
force. [para. 19]
Parliament
has to be taken to know the difference between the date an offence takes place
and the date a person is charged with the offence. To read in those underlined
words would change Parliament’s intent on the applicability of the Truth in
Sentencing Act . The trial judge’s interpretation of the Act is therefore
consistent with the plain words of the statute. [para. 20]
. . .
One
obvious purpose of the Truth in Sentencing Act is to reduce the credit
available for the population of offenders detained before sentencing. The
triggering date for detention before sentencing is the date the person is
charged and held pending a bail hearing. The date a person commits an offence
is of no relevance to this purpose of the Truth in Sentencing Act . . . .
[Text in brackets in original; para. 22.]
[18]
Mr. Clarke was charged after the Act came
into force. He was therefore subject to the credit limits for pre-sentence
custody in accordance with s. 5 .
[19]
The appeal is dismissed.
Appeal
dismissed.
Solicitors for the
appellant: Lockyer Campbell Posner, Toronto.
Solicitor for the
respondent: Attorney General of Ontario, Toronto.