SUPREME
COURT OF CANADA
Between:
Her
Majesty The Queen
Appellant
and
Level
Aaron Carvery
Respondent
- and -
Criminal
Lawyers’ Association of Ontario and
British
Columbia Civil Liberties Association
Interveners
Coram: McLachlin C.J.
and LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ.
Reasons for
Judgment:
(paras. 1 to 23)
|
Karakatsanis J. (McLachlin C.J. and LeBel, Abella,
Rothstein, Cromwell and Wagner JJ. concurring)
|
R. v. Carvery, 2014 SCC 27, [2014] 1 S.C.R. 605
Her Majesty The Queen Appellant
v.
Level Aaron Carvery Respondent
and
Criminal Lawyers’ Association of Ontario
and
British Columbia Civil
Liberties Association Interveners
Indexed as: R. v. Carvery
2014 SCC 27
File No.: 35115.
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 nova scotia
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 detention “if the circumstances justify it” — Sentencing judge
applying enhanced credit on basis of lost eligibility for early release — Whether
sentencing judge erred by granting credit for pre-sentence custody at rate of
one and one-half to one to account for loss of early release — Criminal Code,
R.S.C. 1985, c. C-46, ss. 719(3) , 719(3.1) .
The
accused was on remand for 9.5 months. The sentencing judge assigned a
credit calculated at a rate of one and one-half to one, on the basis of loss of
remission and parole eligibility. The Court of Appeal upheld the decision
finding that the legislation provides for judicial discretion to grant credit
of up to 1.5 to 1 for time spent in pre-sentence custody on the basis of loss
of remission or parole eligibility.
Held: The appeal
should be dismissed.
For
the reasons given in R. v. Summers, the circumstances justifying enhanced
credit of up to one and one-half days for every day of pre-trial detention
under s. 719(3.1) of the Criminal Code include the effect of pre-sentence
detention on access to early release. In this case, there is nothing in the
record to indicate that the accused would be denied early release, and the
accused did not try to drag out his remand to manipulate or “game” the system.
Thus, there are no grounds to interfere with the sentencing judge’s exercise of
discretion.
Cases Cited
Applied: R. v. Summers, 2014 SCC 26,
[2014] 1 S.C.R. 575.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C-46,
s. 719(3) , (3.1) .
Truth
in Sentencing Act, S.C. 2009, c. 29, s. 3 .
APPEAL
from a judgment of the Nova Scotia Court of Appeal (MacDonald C.J. and
Hamilton and Beveridge JJ.A.), 2012 NSCA 107, 321 N.S.R. (2d) 321, 1018
A.P.R. 321, 305 C.C.C. (3d) 329, 267 C.R.R. (2d) 294, [2012] N.S.J. No. 527
(QL), 2012 CarswellNS 1062, affirming a sentencing decision of Derrick Prov.
Ct. J., 2011 NSPC 35, 305 N.S.R. (2d) 167, 966 A.P.R. 167, [2011] N.S.J. No. 339
(QL), 2011 CarswellNS 425. Appeal dismissed.
David W. Schermbrucker and Brad Reitz, for the appellant.
Luke A. Craggs,
for the respondent.
Ingrid Grant, for
the intervener the Criminal Lawyers’ Association of Ontario.
Ryan D. W. Dalziel and Anne Amos-Stewart, for the intervener the British
Columbia Civil Liberties Association.
The judgment of the Court was
delivered by
Karakatsanis J. —
I.
Introduction
[1]
Like its companion case, R. v. Summers,
2014 SCC 26, [2014] 1 S.C.R. 575, this appeal concerns the interpretation of s.
719(3.1) of the Criminal Code, R.S.C. 1985, c. C-46 . This provision
allows judges to assign credit for pre-sentence detention at a rate of 1.5 days
for every day of detention “if the circumstances justify it”. Pre-sentence
detention does not count towards eligibility for early release or parole, and
thus may result in a longer period of incarceration than if the offender were
released on bail. The Nova Scotia Court of Appeal concluded that this loss of
eligibility for parole and early release is a “circumstance” justifying credit
at a rate of 1.5 to 1.
[2]
In light of the principles articulated in Summers,
and for the reasons that follow, I would dismiss the appeal.
II.
Statutory Provisions
[3]
In 2009, Parliament enacted the Truth in
Sentencing Act, S.C. 2009, c. 29 (TISA ). Section 3 of the TISA amended
s. 719(3) of the Criminal Code and added s. 719(3.1) as follows
(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
[4]
On September 9, 2010, the respondent was
arrested for being on the street after midnight in violation of his bail
conditions. A search incident to arrest disclosed five grams of crack cocaine
in his sweatshirt.
[5]
He was not released on bail. His trial was
scheduled for November 16, at which point he pled guilty to the charges of
possession of cocaine for the purpose of trafficking and breach of his
recognizance.
[6]
Sentencing was adjourned to December 13;
however, defence counsel requested a pre-sentence report. On January 13, 2011,
sentencing was again adjourned when the respondent announced his intention to
withdraw his guilty plea. Proceedings were repeatedly adjourned to permit the
respondent to retain and instruct alternate counsel. On May 27, 2011, new
counsel indicated that the respondent would not withdraw his guilty plea.
[7]
The sentencing hearing ultimately took place on
June 9, 2011 and the decision was rendered on June 22. The respondent was on
remand for 9.5 months.
B.
Sentencing Decision, 2011 NSPC 35, 305 N.S.R.
(2d) 167
[8]
The Crown sought a sentence of four years’
imprisonment, less credit of 9.5 months, calculated at a rate of 1 to 1. The
defence ultimately sought a sentence of two years, less credit, calculated at a
rate of 1.5 to 1.
[9]
The sentencing judge determined the fit sentence
was 30 months. Derrick Prov. Ct. J. concluded that loss of remission and
parole eligibility can justify enhanced credit under s. 719(3.1) . She
concluded that s. 719(3.1) was deliberately not limited to “exceptional
circumstances” and that the common law had long recognized that credit at a
rate in excess of 1 to 1 is fair.
[10]
Derrick Prov. Ct. J. concluded that the
respondent’s actions did not disentitle him from receiving enhanced credit
because he was not dragging out his remand to manipulate the system. While the
respondent could have been sentenced earlier, had he not explored the
possibility of withdrawing his guilty plea, it would not be appropriate to
penalize him for considering a legal option. She agreed that the conditions in
which the respondent was detained did not themselves justify enhanced credit.
[11]
The sentencing judge assigned credit of 14
months and one week, calculated at a rate of 1.5 to 1, on the basis of loss of
remission and parole eligibility.
C.
Nova Scotia Court of Appeal, 2012 NSCA 107, 321
N.S.R. (2d) 321
[12]
The Crown appealed on the grounds that enhanced
credit at a rate higher than 1 to 1 is available only in exceptional
circumstances. The Crown further argued that, even if a rate higher than 1 to
1 were available, it would be inappropriate on the facts of this case.
[13]
Beveridge J.A., writing for the Court of Appeal,
engaged in a detailed analysis of s. 719(3.1) and concluded that
“circumstances” justifying enhanced credit need not be exceptional.
Pre-sentence credit is generally granted because the conditions on remand are
usually harsher than those when serving a sentence and because pre-sentence
custody does not count towards remission or parole eligibility.
[14]
Thus, Beveridge J.A. concluded that the
legislation provides for judicial discretion to grant credit of up to 1.5 to 1
for time spent in pre-sentence custody on the basis of loss of remission or
parole eligibility. He noted that the application of s. 719(3.1) would
not be automatic — it would still be necessary to establish that an offender
would have earned remission or been granted parole, although doing so will not
be onerous.
[15]
A trial judge’s decision to credit pre-sentence
custody is discretionary, and in this case, there was no error in principle
justifying appellate intervention.
IV.
Issue
[16]
Did the sentencing judge err by granting credit
for pre-sentence custody at a rate of 1.5 to 1 to account for loss of early
release?
V.
Analysis
[17]
For the reasons given in the companion case, Summers,
I conclude that the “circumstances” justifying enhanced credit under s.
719(3.1) include the effect of pre-sentence detention on access to early
release. Therefore, the only remaining question is whether the sentencing
judge erred in granting enhanced credit on the facts of this case.
[18]
The Crown argues that the respondent’s own
actions disentitled him from receiving enhanced credit.
[19]
Much of the pre-sentencing delay was caused by
the respondent’s indecision as to whether he would plead guilty, and the
changes in counsel this necessitated.
[20]
However, the sentencing judge found that the respondent
did not try to drag out his remand to manipulate or “game” the system (paras.
55-56). That finding was available to the sentencing judge on this record and
there are no grounds to set it aside.
[21]
Credit at a rate of 1.5 to 1 does not allow the
respondent to derive a “benefit” from the delay, unless he ultimately does not
qualify for early release. Indeed, while that rate compensates for loss of
early release, if the respondent were to be paroled at any time before the 2/3
mark of his sentence, he would end up spending more time in jail because of the
delay, notwithstanding the enhanced credit.
[22]
There is nothing in the record to indicate that
the respondent would be denied early release. Therefore, I agree with the
Court of Appeal that there are no grounds to interfere with the sentencing
judge’s exercise of discretion.
[23]
I would dismiss the appeal.
Appeal
dismissed.
Solicitor
for the appellant: Public Prosecution Service of Canada, Halifax.
Solicitors
for the respondent: Burke Thompson, Halifax.
Solicitors
for the intervener the Criminal Lawyers’ Association of Ontario: Russell
Silverstein & Associate, Toronto.
Solicitors for the
intervener the British Columbia Civil Liberties Association: Bull,
Housser & Tupper, Vancouver.