R. v. Arthurs, [2000] 1 S.C.R. 481
Kelly Neil Arthurs Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General for
Ontario Intervener
Indexed as: R. v. Arthurs
Neutral citation: 2000 SCC 19.
File No.: 26800.
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 robbery with a firearm.
At the time of his sentencing, he had been in custody since his arrest
approximately four months earlier. The sentencing judge imposed the minimum
sentence of four years’ imprisonment required by s. 344 (a) of the Criminal
Code and declined to apply s. 719(3) of the Code to take
pre-sentencing custody into account. The accused’s appeal against sentence was
dismissed.
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. Arrance, [2000] 1 S.C.R. 488, 2000
SCC 20; R. v. Brown (1976), 36 C.R.N.S. 246.
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 E. Turner, for
the appellant.
Peter W. Ewert, Q.C.,
and Geoffrey R. Gaul, for the respondent.
David Finley, for the
intervener the Attorney General for Ontario.
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. Arrance, [2000] 1 S.C.R.
488, 2000 SCC 20, 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
March 19, 1996, the appellant robbed a store in Victoria, British Columbia. He
was armed with an unloaded, sawed-off shotgun. He pointed the gun at the clerk
and demanded money. After receiving about $500, the appellant fled.
3
Six days later, on March 25, 1996, the appellant, carrying the same
sawed-off shotgun, attempted to rob a convenience store. The appellant
struggled with an employee of the store, knocking him down, and hitting him
four times with the gun. The appellant fled the store without obtaining any
money and was apprehended a short distance away.
4
The appellant was arrested and provided a warned statement to the police
admitting both offences. He was 28 years old at the time with no previous
convictions, although he had received a conditional discharge for possession
of a prohibited weapon, a broken switch blade knife. The appellant entered a
guilty plea. At the time of his sentencing, the appellant had been in custody
for about four months.
B. British
Columbia Provincial Court
5
In deciding whether to apply s. 721(3) of the Criminal Code (now
s. 719(3) ), to credit the four months that the appellant had spent in
pre-sentencing custody to reduce the four-year minimum sentence he was facing
under s. 344 (a), Ehrcke Prov. Ct. J. relied on R. v. Brown (1976),
36 C.R.N.S. 246 (Ont. Co. Ct.), for the proposition that a general statutory
provision yields to an express provision. Thus, Ehrcke Prov. Ct. J. held that
s. 721(3) could not be applied to a s. 344 (a) mandatory minimum sentence
and the appellant was given no credit for the four months he spent in custody
prior to sentencing.
6
Ehrcke Prov. Ct. J. imposed the minimum sentence of four years for the
robbery, as well as a sentence of three years concurrent for the attempted
robbery, and a 10-year prohibition against possession of firearms on each
count.
C. British
Columbia Court of Appeal (1998), 125 C.C.C. (3d) 43
7
The appellant appealed his sentences, challenging the constitutionality
of the mandatory minimum punishment of s. 344 (a) as a violation of his
s. 12 Charter right not to be subjected to cruel and unusual punishment
or treatment and the refusal of the sentencing judge to make a deduction 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 Arrance, supra.
8
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) of the Criminal Code (formerly s. 721(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 there was no variation in the
sentence imposed by the sentencing judge and his appeal was dismissed.
III. Relevant
Statutory Provisions
9
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
10
The only issue before this Court is whether the sentencing judge should
have applied s. 719(3) to consider whether the appellant’s sentence should be
reduced to give credit for the time he had already served in custody in
relation to these offences, and if so, by how much. For the reasons given in Wust,
supra, I conclude that she should have done so.
11
This case, like Arrance, supra, illustrates again the
absurdity and the unfairness that results from an interpretation of the Criminal
Code that precludes granting credit for time served prior to sentencing.
The appellant was detained following his guilty plea, but while awaiting
sentence. Such delay is often necessary to permit the court to make a better
informed decision about the appropriate sentence by obtaining input from a
pre-sentence report, or otherwise through materials collected by the parties.
This is particularly important in the case of a first-time offender about whom
little may be known. It would be grossly 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.
12
For these reasons and the reasons given in Wust, supra, I
would allow the appeal and set aside the judgment of the Court of Appeal. I
would remit the matter to the sentencing judge for consideration of how much
credit should be given to the appellant for the time served in pre-sentencing
custody.
Appeal allowed.
Solicitors for the appellant: Gordon & Velletta,
Victoria.
Solicitor for the respondent: The Ministry of the Attorney
General, Victoria.
Solicitor for the intervener: The Ministry of the Attorney General,
Toronto.