R. v. Walters, 2012 ABQB 83

Court of Queen ’ s Bench of Alberta Citation: R. v. Walters, 2012 ABQB 83 Date: 20120202 Docket: 090950411Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Norman Washington Walters Accused Restriction on Publication: By Court Order, information that may identify the complainants may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application.

See the Criminal Code , s. 486.4 . _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.A. Graesser _______________________________________________________ Introduction

[ 1 ] Norman Washington Walters was convicted of three counts of sexual assault with a weapon, one count of robbery, one count of unlawful confinement and one count of theft. [ 2 ] This decision follows several days of sentencing hearings at which Mr. Walters testified, Roman Zub, chief of security for the Edmonton Remand Centre testified, and victim impact statements from two of Mr. Walters’ victims were read. [ 3 ] He has been in custody at the Edmonton Remand Centre since his arrest on August 4, 2009.

During his trial, I found that his s. 7 Charter rights had been violated during his arrest as he had been unnecessarily kicked a number of times by one of the arresting constables. See R. v. Walters , 2011 ABQB 677 . [ 4 ] I also found that Mr. Walters’ right under the Vienna Convention had been violated as he was not informed, on his arrest, of his right to contact consular authorities. See R. v. Walters , 2011 ABQB 593 . Mr. Walters is a United States citizen, and at the time of the offences was in Canada illegally. There was an immigration warrant for him at the time of his arrest.

He was never specifically advised of his consular rights in respect of these charges. Rather, several days after he was arrested for these offences, he was visited by a Canadian immigration officer with respect to his immigration status, and she advised him of his consular rights on the immigration matters. Mr. Walters did exercise his consular rights thereafter, and had some communications with the U.S. Consul’s office in Calgary. The nature and extent of Mr. Walters’ contact with the U.S. Consul was not in evidence. [ 5 ] Mr.

Walters testified as to a number of incidents which occurred during his time at the Edmonton Remand Centre, and claims that his s. 7 and s. 12 Charter rights were violated. [ 6 ] Those sections of the Charter state: Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Treatment or punishment 12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Positions of the Parties [ 7 ] The Crown seeks a global sentence of 15 to 18 years, and concedes that Mr. Walters should be given credit for all of his time at the Edmonton Remand Centre on the basis of 2 for 1. Any reduction in sentence for the s. 7 violation at the time of his arrest on the principles in R. v. Nasogaluak , 2010 SCC 6 should be minor. No specific reduction was suggested. The Crown argued that there should be no reduction on account of the Vienna Convention breach, noting that there was no evidence of any harm or prejudice to Mr.

Walters and there was only a 3 day delay in his being notified of his right to contact consular authorities. [ 8 ] Mr. Willson on behalf of Mr. Walters submits that a global sentence in the 10 to 12 year range would be appropriate. He argues that Mr. Walters’ s. 7 and 12 Charter rights were violated during Mr. Walters’ incarceration at the Edmonton Remand Centre. Alternatively, if the conditions and incidents at the Remand Centre did not constitute Charter breaches, they should still be considered as a sentencing factor.

Taking the conditions at the Remand Centre, the earlier s. 7 breach and the Vienna Convention breach into account, Mr. Walters should be sentenced to time served.

[ 9 ] Because of Mr. Walters’ immigration status, he will be deported to the United States immediately on his release from custody. [ 10 ] While in custody pending trial of these offences, Mr. Walters pled guilty to the immigration offences he was charged with, and was sentenced to 3 months’ incarceration. That time was served before Mr. Walters was convicted of these offences. Issues [ 11 ] It is necessary for me to consider and decide a number of issues in sentencing Mr. Walters. 1. What is a fit and proper sentence for each of the offences? 2.

What sentences should be served concurrently and what sentences should be consecutive? 3. What is the fit and proper global sentence? 4. What credit should Mr. Walters be given for the s. 7 breach at the time of his arrest? 5. What credit should Mr. Walters be given for the Vienna Convention breach? 6. Were Mr. Walters’ s. 7 and/or s. 12 Charter rights violated while he was in the Remand Centre? 7. What credit should Mr. Walters be given for pre-sentence custody? 8. What time should be deducted for the immigration offence? Background [ 12 ] Mr. Walters was convicted of sexually assaulting M.B. at knifepoint.

The sexual assault involved use of a knife, threats and M.B. was not only sexually assaulted but was cut. M.B. was forced to perform oral sex on Mr. Walters, before he forced sexual intercourse on her. Her victim impact statement spoke of the significant impact the offences against her have had on her self esteem and her feelings of safety. [ 13 ] Mr. Walters was convicted of sexually assaulting K.L. at knifepoint. The sexual assault involved threats, but instead of submitting, K.L. screamed, causing Mr. Walters to flee.

Before he fled, however, he cut K.L. with the knife and robbed her of her purse. [ 14 ] He was also convicted of unlawfully confining and sexually assaulting M.B. at knifepoint. The sexual assault involved prolonged sexual intercourse in various positions. After the sexual assault, Mr. Walters stole M.B.’s purse and fled. Her victim impact statement spoke of the significant impact the offences against her have had on her feelings of safety. [ 15 ] These were pattern crimes. Mr. Walters used the internet to make contact with the three victims, who were all in the sex trade.

He lured them to deserted locations, and then used a knife to extort sex acts. All of the victims were threatened at knifepoint. Two of the victims endured sexual intercourse. One endured forced oral sex and intercourse. Two of them were cut by the knife Mr. Walters wielded. He robbed one; stole from another. He forcibly detained one of the victims in a partially constructed home before he sexually assaulted her. [ 16 ] It is noteworthy that the most serious offence, having regard to the maximum sentences prescribed for them, is robbery. The maximum sentence for robbery is life imprisonment.

Sexual assault with a weapon carries a maximum sentence of 14 years

imprisonment. Unlawful confinement carries a maximum sentence of 10 years. 1. Fit and proper sentences A. Starting point [ 17 ] For the major sexual assaults, R. v. Sandercock , 1985 ABCA 218 , prescribes a 3 year period of incarceration as the starting point for a major sexual assault.

That has been defined as being where the sexual assault “is of a nature or character such that a reasonable person could foresee that it is likely to cause serious psychological or emotional harm, whether or not physical injury occurs...A major sexual assault includes but is not limited to non-consensual vaginal intercourse, anal intercourse, fellatio and cunnilingus.” R. v. Arcand , 2010 CarswellAlta 2364, 2010 ABCA 363 , at para. 17 . [ 18 ] The Court of Appeal affirmed Sandercock in Arcand . It is not necessary for me to consider the effect (if any) R. v. Lee , 2012 ABCA 17 has on Arcand .

There is no issue here that the sentence for Mr. Walters in regard to any of the sexual assaults should be less than 3 years. [ 19 ] Mr. Willson notes that there is no starting point sentence in Alberta for sexual assault with a weapon. [ 20 ] R. v. Saeed , 2004 CarswellAlta 1584 (C.A.) , sets a starting point sentence of 12 - 18 months for “muggings”. [ 21 ] R. v. Johnas , 1982 ABCA 331 , sets a starting point sentence for convenience store robberies at 3 years. R. v.

Carter , 1992 ABCA 190 , held that “if there is serious violence or if injuries are suffered then a mugging can be just as serious as a convenience store robbery” (at para. 1). [ 22 ] K.L. was threatened with a knife and cut while being robbed, so I consider the circumstances to invoke a fair analogy to convenience store robberies and the principles in R. v. Johnas . B.

Criminal Code considerations [ 23 ] s. 718 of the Criminal Code sets out the purpose and objectives of sentencing as follows: 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. [ 24 ] Proportionality is required under s. 718.1.

[ 25 ] S. 718.2 requires consideration of aggravating and mitigating circumstances relating to the offence or the offender. None of the listed circumstances is of application here, leaving a general consideration of other circumstances which might be characterized as aggravating or mitigating. [ 26 ] Parity is required under s. 718.2(b). Totality and undue length or hardship are considerations for consecutive sentences under s. 718.2(c). [ 27 ] In the circumstances of these offences and this offender, I do not consider (

d) or (

e) relating to sanctions other than imprisonment to be applicable. C. Aggravating factors [ 28 ] A number of factors play here. These were carefully planned offences. The victims were lured by way of deceptions (posing as a paying customer) to somewhat secluded locations: a quiet residential neighbourhood, a back alley, and a house under construction. [ 29 ] The victims were vulnerable to harm, being sex trade workers. Both R. v. Douglas , 2007 ABCA 321 and R. v. Sidhu , 2005 BCCA 308 recognize that sex trade workers deserve the court’s protection.

Rather than perpetuating stereotypical treating of prostitutes, the courts are now recognizing this group’s vulnerability to abuse, exploitation and victimization. [ 30 ] Use of the knife is already included in the sexual assault with a weapon offences, but is aggravating to robbery and unlawful confinement. [ 31 ] As pointed out by the Crown, the randomness of the victims is an aggravating feature: see R. v. Jacklin , 1995 CarswellAlta 670 (P.C.) . [ 32 ] It is also relevant, and aggravating, that Mr. Walters was unlawfully in Canada, and was evading immigration authorities.

As a visitor to this country, he has undoubtedly seriously abused Canada’s hospitality. [ 33 ] The frequency with which the offences were committed, and the common locations or neighbourhood is aggravating because of the impact on the neighbourhood in general: the fear that there was an armed and dangerous serial rapist operating in the community created many indirect victims. [ 34 ] The impact on the victims cannot be ignored and here is aggravating. M.B. was cut and suffered abrasions and bruising. She was subjected to oral sex and intercourse.

Her victim impact statement speaks of the ongoing psychological harm she suffered. Her continued fears are understandable and a natural response to the crimes committed against her. [ 35 ] K.L. was also injured, including cuts and bruises. [ 36 ] M.J. was confined for some period of time and was threatened. She was subjected to various threats of harm, including rape by a third person. Mr. Walters subjected her to sexual intercourse and forced her to assume different positions. She too suffered bruising and abrasions as well as psychological trauma. D. Mitigating features [ 37 ] Mr. Walters has no record.

These would appear to be his first convictions. He is a young man, being approximately 22 at the

time of the offences. [ 38 ] He testified on sentencing as to his efforts to become a better person, and presented a large number of certificates of completion of various Bible study and personal development courses while incarcerated at the Remand Centre. [ 39 ] He also testified as to his having cooperated with the authorities at the Remand Centre in their investigation of a crime committed against another inmate, and of his life-saving efforts in relation to another prisoner who experienced seizures. [ 40 ] The Crown acknowledges that Mr.

Walters is entitled to credit for time spent before sentencing at the Edmonton Remand Centre, arguing that 2 for 1 credit would be appropriate having regard to the usual factors of the absence of amenities, programs and probation. [ 41 ] Mr. Walters is, of course, not entitled to any reduction of sentence because of the absence of a guilty plea. But that factor is only the absence of mitigation, and cannot be considered aggravating in any way. [ 42 ] Remorse is a common mitigating feature. However here, I do not see that Mr. Walters has demonstrated any remorse for his actions.

His address to the Court was devoid of any remorse or acceptance of responsibility for his actions. Empathy for his victims was very limited, as was any appreciation for the nature and extent of the harm he caused. Again, these issues relate to the absence of mitigation, and are not aggravating. [ 43 ] What Mr. Walters relies on mainly for mitigation of sentence is what might be described as wrongs done to him by his captors and conditions at the Remand Center. [ 44 ] I will deal with these submissions in more detail, but the

summary of the complaints is: 1. He was in protective custody for approximately 90% of his time at the Remand Centre, with limited time outside his cell; 2. He was triple bunked for a significant portion of his time at the Remand Centre; 3. Water to the cell toilet has been regularly turned off at night; 4. He was threatened and assaulted at least 7 times by other inmates (including feces and urine bombing) in the Remand Centre, and the guards did not do enough to protect him (with one of the assaults by another inmate leaving him with permanent eye damage); 5.

He was assaulted, bear-sprayed and starved by a guard in the Remand Centre, and the Remand Centre neither prevented it from happening nor did it do anything about it when Mr. Walters complained; 6. He was put in cells with incompatible inmates and the incompatibility was known to guards at the Remand Centre; 7. Incompatible inmates were allowed to be out of their cells at the same time as he; 8. The Remand Centre was ineffective in controlling an infestation of lice; 9. He was harassed by guards, including being called racist or insulting names; 10.

He has not been provided with a reasonable supply of clean underwear; 11. He has been denied access to the Remand Centre chaplain and church services; 12. Requests for transfers to other institutions were unreasonably denied. [ 45 ] These matters are relevant to consideration of how much credit should be given for pre-sentence custody, and to the allegations of breach of Charter rights and remedies for any breaches, but not initially in determining what a fit and proper sentence is.

[46] In crafting a fit and proper sentence, I consider the following factors to be most relevant and important: 1. Denunciation and deterrence are the major factors; 2. These were violent, brutal, unprovoked assaults and offences; 3. The evidence satisfies me that Mr. Walters is a dangerous man; 4. Society needs to be protected from Mr. Walters; and 5. To date, Mr. Walters has accepted no responsibility for his crimes, and he has little or no insight into the harm he has done to hisinnocent victims. [47] The harm actually caused to his victims is significant, as is the vulnerability of his victims. While Mr.

Walters is relativelyyoung, I do not have the benefit of any forensic assessments or a pre-sentence report offering clues as to the possibility of rehabilitation. From the evidence before me, I can only conclude that if there is any hope of rehabilitation for Mr. Walters, it must be accomplished inthe secure setting of a penitentiary. [48] The Crown referred to a number of authorities dealing with similar types of major sexual assaults: R. v. Poucette, 2004 ABCA 9; R. v. Chand, 2002 ABCA 16; R. v. F. (D.M.), 2000 ABCA 244; R. v. Morales, 1995 ABCA 203 , 1995 CarswellAlta 646 (C.A.); R. v.

Clark, 1994 CarswellAlta 857 (C.A.); R. v. Delorme, 1992 CarswellAlta 403 (C.A.); R. v. Thomson, 1988 CarswellAlta 372 (C.A.); R. v. Lonechild, 2008 ABPC 263; and R. v. Jacklin, 1995 CarswellAlta 670 (P.C.). [49] The Crown also referred to R. v.

Johnas, (supra), relating to sentencing for robbery which emphasized the need fordeterrence and denunciation having regard to the prevalence of robberies in the community and the inevitable trauma suffered by thevictim. [50] These cases support sentences of 5 - 10 years per victim, depending on whether the sexual assault was prolonged, coupledwith other offences such as unlawful confinement and other relevant circumstances. [51] Considering all of the factors specific to each of the victims and the offences on each victim, the Crown argues that sentencesshould be imposed of 7 years for M.B (sexual assault with a knife), 9 years for M.J. (sexual assault with a knife, unlawful confinement,theft) and 4 years for K.L. (sexual assault with a knife and robbery).

The 20 year total should be reduced to 15 - 18 years on the totalityprinciple. [52] On Mr. Walters’ behalf, Mr. Willson referred to the decisions in:

R. v. Jefferson , 2008 ABCA 365 ; R. v. Sandercock , 1985 ABCA 218 ; R. v. Lyons , 2005 ABCA 258 ; R. v. Ricketts , [1985] A.J. No. 879 (C.A.) ; R. v. Johnas , 1982 ABCA 331 ; R. v. Bannert , 2009 ABCA 15 ; and R. v. Belenky , 2010 ABCA 98 . [ 53 ] These cases support sentences in lower ranges, again depending on the circumstances of each offence, offender and victim. [ 54 ] Mr. Willson submits that sentences should be imposed (subject to reductions and credits for other issues) as follow: M.B. 4 years, K.L. 2 years and M.J. 5 years. He notes that Mr.

Walters will be deported on release. [ 55 ] In the end, I agree with the Crown’s submissions on the appropriate sentences relating to each of the victims: M.B. 7 years, K.L. 4 years and M.J. 9 years. All of these crimes are, in my view, at the serious end of the range having regard to the circumstances of the offences, the aggravating factors and the risk Mr. Walters poses to society. [ 56 ] Broken down individually, the appropriate sentences are: M.B. Sexual assault with a weapon: 7 years K.L. Robbery: 4 years Sexual assault with a weapon: 3 years M.J.

Sexual assault with a weapon: 9 years Unlawful confinement: 3 years Theft: 1 year 2. What sentences should be served concurrently and what sentences should be consecutive? [ 57 ] I am satisfied that it is appropriate for the sentences for the crimes against a particular victim to be served concurrently. There is no minimum sentence with respect to any of the offences. With respect to each victim, where there was more than one crime, they were connected in time, place and location. Different and separate offences were committed but the connections are such that they

should be concurrent. The crimes can be said to essentially flow out of the same incident [ 58 ] As regards the sentences for each victim being consecutive or concurrent, each was a separately planned series of crimes with common elements as to the planning and execution of the crimes, but there was no connection between the victims. There is a separation between the victims and the offences committed against each victim, such that the per-victim sentences should be served consecutively. 3. What is the fit and proper global sentence? [ 59 ] Having regard to Mr.

Walters’ age and the absence of a previous record, the total sentences indicated by the above analysis of 20 years is excessive. The Crown recognizes that the totality principle should operate to reduce the “global” sentence somewhat. The Crown submits that the range should be between 15 and 18 years. [ 60 ] Mr. Willson’s total sentence on his analysis is 11 years. He argues that totality places an appropriate sentence at between 10 and 12 years. [ 61 ] In my view, the appropriate global sentence, before consideration of other reducing factors, is 14 years. 4. What credit should Mr.

Walters be given for the s. 7 breach at the time of his arrest? [ 62 ] R. v. Nasogaluak , 2010 SCC 6 , recognizes that Charter breaches may be taken into account in sentencing, apart from s. 24(1) of the Charter . In R. v. Munoz , 2006 ABQB 901 , Wilkins J. reduced a sentence of 7 years by 33 months for time served in the remand facility, and ordered a remaining sentence of two years less a day, having regard to the proven breaches of Mr. Munoz’s s. 7 and 12 Charter rights. Doing the math indicates that those breaches warranted a 27 month reduction in the otherwise appropriate sentence. [ 63 ] In R. v.

Fryingpan , 2004 ABPC 28 , Easton P.C.J. stayed a breach of release conditions (s. 145) charge because of s. 7 violations against Mr. Fryingpan in the arrest stage of the matter. Mr. Fryingpan’s breach was consumption of alcohol. [ 64 ] In R. v. Chan , 2005 ABQB 615 , McIntyre J. refused to grant a stay of the charges in the face of a s. 2(a) (Freedom of Religion) breach, noting at para. 208 that the finding of a breach of Charter rights required consideration of s. 24.

There, he considered that a declaration of Charter breach was sufficient, coupled with a reduction of sentence for time served in remand because of that violation and other complaints of mistreatment. [ 65 ] In R. v. Steele , 2010 ABQB 191 , Macklin J. stayed obstruction of justice and weapon charges against Mr. Steele as a result of s. 7 and 12 breaches. He was convicted of being unlawfully at large. Mr. Steele had fled police. He was chased and caught by a police dog. He stabbed the police dog, and was shot 4 times by the dog’s handler. [ 66 ] Mr. Willson argues for a substantial reduction in Mr.

Walters’s sentence on account of the circumstances and s. 7 breach in Mr. Walters’s arrest. No evidence was led of any lasting injury to Mr. Walters. He was sore and bruised, but much of the soreness and bruising was undoubtedly the result of being shot 5 times with the Arwen rubber bullet gun, struck by the police car and being thrown to the ground when he was finally stopped. None of those circumstances amounted to a Charter breach, as I held earlier. Only the subsequent kicks constituted a Charter violation. [ 67 ] Excessive force and gratuitous force have no place in policing.

Police are expected to control their own emotions and act at all time appropriately and proportionately. While excesses can sometimes be explained and understood, they can rarely be accepted. There is an unfortunate disconnect between addressing state misconduct in sentencing and the principles of sentencing itself, especially having regard to society’s and victims’ perceptions of justice.

A victim who sees the sentence of the criminal must feel doubly victimized if the appropriate sentence is reduced because of some misconduct on the part of the state in dealing with the offender. [ 68 ] Nevertheless, for Charter values to be given meaning and respect, breaches must be appropriately addressed. As noted in

Nasogaluak , s. 718 of the Criminal Code already provides sufficient discretion for a sentencing judge to reduce an otherwise fit sentence because of police violence or state misconduct without actually finding a Charter breach (at para. 55). [ 69 ] Here, having found a Charter breach, I am satisfied that the appropriate process is to use s. 24 to craft a remedy. Using the general discretion would not, in my view, appropriately address the Charter breach. [ 70 ] That being said, not all Charter breaches warrant a remedy other than the denunciation inherent in a judicial finding of a Charter breach.

Sometimes, Charter breaches will not result in the exclusion of evidence, leaving a breach unremedied or unpunished. [ 71 ] Generally, there should be a connection between the breach and the remedy. Breaches in the gathering of evidence logically lead to the remedy of exclusion. Breaches that might be characterized as punishment or sanctions, such as the use of excessive force, logically lead to a reduction in sentence. [ 72 ] But as with sentencing generally where the punishment needs to fit the crime, so should remedies for Charter breaches.

A stay of relatively minor charges may be an appropriate remedy for an egregious Charter breach. A stay of serious charges for the same breach may be disproportionate. [ 73 ] Fryingpan was tasered 5 to 7 times, had a broken tooth and was illegally strip-searched. Nasogaluak had broken ribs, and a punctured lung. Steele was shot four times, leaving him with permanent and serious injuries including the loss of a kidney, left adrenal gland and a portion of his large intestine. He continued to suffer pain and frequent bladder infections. [ 74 ] The impact of the breach on Mr. Walters was not as severe.

Any injuries were minor and fully healed in short order. The force used by the constable was excessive, but was not life-threatening. [ 75 ] Some reduction in sentence is appropriate here. But not so much as in Nasogaluak , Fryingpan or Steele . In my view, the appropriate reduction here is 4 months. 5. What credit should Mr. Walters be given for the Vienna Convention breach? [ 76 ] My previous finding that Mr. Walters had rights under the Vienna Convention and that they were breached is tantamount to a declaration to that effect. The argument was that had Mr.

Walters been advised of his consular rights, he might have waited to provide a statement to the police. Further, he might have been advised by the consular officials to exercise his right to silence and make no statement at all, and accepted that advice. The remedy initially sought was exclusion of Mr. Walters’ statement to police following his arrest. His interview took place before there was any suggestion that Mr. Walters might contact the U.S. consul. That remedy was rejected, as there was no real evidentiary connection between the consular rights and making an otherwise voluntary statement to police.

The possible remedy of a stay was rejected as being completely disproportionate to the seriousness of the offences Mr. Walters was charged with and the nature of the breach of his rights. [ 77 ] The difficulty in giving Mr. Walters any credit against his sentence for the Vienna Convention breach is that there is no connection between the breach of consular rights and sentencing. The absence of being given consular rights is not tantamount to a punishment or sanction of some sort. [ 78 ] In my view, there is no valid reason to reduce Mr. Walters’s sentence as a result of this breach.

Normally, breaches of international treaties are addressed between nations rather than in litigation involving the citizens of those nations who have been impacted by treaty violations. Mr. Walters has not proven any measurable harm to himself as a result of the breach by the arresting officer.

[ 79 ] There has already been a declaration that his rights were breached. By way of further remedy, I direct the Crown to forward a copy of my decision R. v. Walters , 2011 ABQB 593 to the U.S. Consul in Calgary, Alberta so that the appropriate consular authorities are specifically advised that one of their citizen’s rights were violated. The U.S. consul or other U.S. authorities will have to decide if any action should be taken by them in relation to the treaty breach. 6. Were Mr. Walters’ s. 7 and/or s. 12 Charter rights violated while he was in the Remand Centre? [ 80 ] I have itemized Mr.

Walters’ complaints about his treatment at the Remand Centre. As noted by McIntyre J. in R. v. Chan , ( supra) , mistreatment or treatment that is worse than “hard time” might be addressed through increased credit for pre-sentence custody. I will deal with the various issues in the context of whether any amounts to a specific Charter violation. Whether any amounts to greater than hard time will be addressed below. [ 81 ] In this regard, Mr. Walters refers to Marceau J.’s decision in Trang v. Alberta (Edmonton Remand Centre) , 2010 ABQB 6 , at para. 1157 .

There, he found that a s. 7 violation occurred when security classifications were unilaterally changed. He found s. 12 violations on account of various inmates being locked up, 2 inmates per cell, for 18 - 21 hours a day with limited access to recreation or other activities. Inadequately cleaned and stained underwear amounted to a s. 12 breach. [ 82 ] R. v. Chan , ( supra ) dealt with similar complaints in the context of credit for time served. McIntyre J. declined to find similar complaints to be s. 7 or s. 12 violations. [ 83 ] Essentially, these are factual assessments.

The evidence before the court consists mainly of Mr. Walters’s testimony, and the testimony of Mr. Zub, a senior officer at the Edmonton Remand Centre. [ 84 ] Dealing specifically with each of the complaints: 1. He was in protective custody for approximately 90% of his time at the Remand Centre, with limited time outside his cell [ 85 ] Mr. Walters was in protective custody for his protection from other inmates. Because he was charged with sexual assault, he was at risk from disapproving fellow inmates.

His case had widespread publicity and notoriety at the time of his arrest. [ 86 ] There is certainly an argument that being kept in a cell 23 hours a day (more than was the case in Trang ) with limited time and opportunity for exercise, activities and even socialization is cruel and unusual punishment. It is obvious, however, that where protective custody is reasonably required (and in Mr.

Walters’ case generally requested by him and not objected to) there will be some isolation and less access to amenities than general population inmates enjoy. “Cruel and unusual” is limited to some degree by the general wording in s. 1 of the Charter : “except as may be justified in a free and democratic society”. Constructing and staffing a facility where inmates requiring protective custody have the same amount of time out of their cells, and with access to the same amenities as do inmates not requiring protective custody, may be prohibitively expensive and impractical. [ 87 ] In circumstances such as Mr.

Walters’, where protective custody per se was reasonable, I do not see that Mr. Walters has made out a s. 12 breach. S. 7 is not implicated by the facts here in regard to this complaint. This may be hard time, but that in itself does not make it a Charter violation. 2. He was triple bunked for a significant portion of his time at the Remand Centre [ 88 ] I can see no reason other than financial for the triple bunking situation at the Edmonton Remand Centre. From my review of the late-produced housing records, Mr. Walters was triple bunked for 200 days in 2010 (all in protective custody) and 64 days in 2011.

That amounts to approximately 30% of the time spent in the Remand Centre to date.

[ 89 ] The records were incomplete; however the above analysis is likely an underestimate of the time spent triple bunked. [ 90 ] By way of background, as confirmed by Mr. Zub, the Edmonton Remand Centre was originally built to house some 350 inmates, all in single cells. It was renovated at some stage to accommodate more inmates, such that bunk beds were introduced and double bunking became the norm. As demand grew, the practice of triple bunking became common.

When triple bunked, one of inmates sleeps on a mattress on the floor in a small cell. [ 91 ] Marceau J. considered double bunking 18 - 21 hours per day to be a s. 12 violation on the facts before him.

I have no hesitation in concluding that triple bunking in protective custody, where inmates are housed for their protection and not for disciplinary or other administrative reasons, and kept in those cells for 23 hours a day, 7 days a week, 52 weeks a year, is cruel and unusual and a violation of s. 12. [ 92 ] A remand centre such as the Edmonton Remand Centre primarily houses people charged with crimes, but who have not yet been convicted of those crimes. Most of the inmates (including Mr. Walters) are entitled to the benefit of the presumption of innocence.

That seems to be lost to some degree, as the remand centre inmates appear to be routinely referred to and addressed as “offenders”. Additionally, it appears that those who are charged with crimes, yet to be convicted and presumed to be innocent, are housed in conditions far worse than many jails or penitentiaries in this Province built for those actually convicted of crimes. That by itself may support a s. 12 argument for remand conditions substantially worse than those generally experienced by serving prisoners. [ 93 ] In any event, the evidence satisfies me that the triple bunking conditions experienced by Mr.

Walters constituted a breach of his s. 12 rights. While such conditions might have a s. 7 aspect, there was no evidence before me of any actual physical or psychological harm to Mr. Walters as a result of the overcrowding. 3. Water to the cell toilet has been regularly turned off at night [ 94 ] This was adequately explained by Mr. Zub as a reasonable and necessary measure because of wilful damage or nuisance committed by other inmates. While causing discomfort (odors) because of the inability to flush the toilet at night, such discomfort does not constitute either a s. 7 or s. 12 breach. Mr.

Zub testified that in response to Mr. Walters’ complaint, he had been invited to “buzz” the duty guard to temporarily turn on the water if someone needed to use the toilet at night. Mr. Walters confirmed that this had occurred on occasion. I find no Charter breach here. 4.

He was threatened and assaulted at least 7 times by other inmates (including feces and urine bombing) in the Remand Centre, and the guards did not do enough to protect him (with one of the assaults by another inmate leaving him with permanent eye damage) [ 95 ] While the Remand Centre owes a duty of care to the inmates in its care, the duty of care does not extend to a guarantee of safety and security. Reasonable measures must be taken, with the recognition that such a facility will house a variety of dangerous and vulnerable inmates. Gangs proliferate, as do tensions between inmates.

Perfect safety might involve personal protection for at-risk inmates and greater segregation. Those measures might in themselves lead to isolation and other problems. The incidents Mr. Walters testified to (apart from the alleged assault by a guard) involved other inmates. Mr. Walters’ testimony did not satisfy me that the assaults, threats, fears and other incidents involving other inmates resulted from negligence on the part of the Remand Centre or its staff. Some of the incidents occurred when Mr. Walters wanted to try life on a general population unit. Mr.

Walters has not met the burden of proof on him that these assaults resulted from any unreasonable actions or inactions of the Remand Center or its employees. 5. He was assaulted, bear-sprayed and starved by a guard in the Remand Centre, and the Remand Centre neither prevented it from happening nor did it do anything about it when Mr. Walters complained [ 96 ] Mr. Walters has the burden of proving a Charter breach. His testimony as to being assaulted and bear sprayed was relatively straightforward.

While I found him incredible in many aspects of his testimony relating to the offences themselves, I must assess credibility on an issue by issue basis as I made (and make) no finding that not a single word of his testimony could be believed.

[ 97 ] The difficulty here is that there is no corroboration of Mr. Walters’ evidence. His version of events is denied by the guard involved. The guard was a credible witness, and was not shaken in an material respect on cross-examination. However, I have no particular reason to disbelieve either of them. In a situation where the trier of fact is unable to make a reasonable credibility assessment, the issue turns on onus. Essentially, Mr. Walters has failed to satisfy me on a balance of probabilities that he was assaulted by the guard. No Charter breach in this regard has been proven. 6.

He was put in cells with incompatible inmates and the incompatibility was known to guards at the Remand Centre [ 98 ] It may well be that there were errors made in placement. These errors caused Mr. Walters concern, fear and anxiety, but did not result in any specific assaults. It cannot be said that inmates are entitled to decide who they will be placed with and who they will not be placed with. The Remand Centre is entitled to make housing decisions. Failing to follow an inmate’s request is not a s. 7 or s. 12 violation. In some cases, it might be a s. 7 issue if harm results.

But there was no evidence of any significant harm to Mr. Walters. No s. 7 violation has been made out. 7. Incompatible inmates were allowed to be out of their cells at the same time as he [ 99 ] As noted with 6 above, no s. 7 violation has been made out in regard to this complaint. 8. The Remand Centre was ineffective in controlling an infestation of lice [ 100 ] Health issues invoke s. 7. There was no medical evidence presented concerning the infestation of lice. The Remand Center was not ignoring the problem; they were taking some steps to fix the situation.

Absent evidence as to what else might have been done, or that what was being done was negligent, I cannot conclude that there was a s. 7 or s. 12 violation. There was undoubtedly discomfort resulting to Mr. Walters, but that alone does not justify a finding of a Charter breach. 9. He was harassed by guards, including being called racist or insulting names [ 101 ] Any name calling or harassment is inappropriate. In Trang , Marceau J. found such conduct to be a s. 15 violation (equality rights). Mr.

Walters’ Charter Notice does not specify breaches of s. 15, so this complaint will be dealt with below, under the credit for remand time section. 10. He has not been provided with a reasonable supply of clean underwear [ 102 ] While Mr. Zub testified that clean underwear was available from time to time, he was unable to address Mr.

Walters’ complaints that his personally-supplied underwear was frequently lost or destroyed in cell searches, and he was unable to secure a reliable supply of clean underwear. [ 103 ] I agree with Marceau J.’s conclusion in Trang that the absence of clean underwear, or the presence of stained underwear, amounted to a s. 12 violation. Mr. Walters has satisfied me that his s. 12 rights were violated by the absence of the regular provision of clean underwear. Medical evidence would be necessary to support a s. 7 violation argument.

This may be a protective or administrative custody issue, as when inmates are allowed out of their cells for more than half an hour at a time, they may be able to access institution- provided washing machines. 11. He has been denied access to the Remand Centre chaplain and church services [ 104 ] Mr. Walters has not established that his inability to attend regular church services and have frequent access to the institution’s chaplain violated his rights. While McIntyre J. found some conduct to violate s. 2(

a) in Chan , s. 2(

a) has not been raised by Mr. Walters

and no discrimination has been made out. Mr. Zub’s response to the complaint: that there was not enough staff to facilitate an inmate in protective custody being taken to church services on a regular basis, does not warrant a finding of a Charter breach as no discrimination against Mr. Walters or anyone else was shown. 12. Requests for transfers to other institutions were unreasonably denied [ 105 ] As noted with “incompatibles” above, failure to act on an inmate’s request is not a violation of s. 7 or s. 12. No breach has been made out in this respect.

Summary of Charter breaches [ 106 ] In

summary, breaches of s. 12 have been established by Mr. Walters in relation to the triple bunking and absence of clean underwear. [ 107 ] S. 24 of the Charter requires consideration of a remedy for such breaches. There is a clear connection between these breaches and punishment or sanctions, such that a reduction in sentence, or credit against sentence, is appropriate. [ 108 ] As a result of the s. 12 violation relating to triple bunking, Mr. Walters’ sentence should be reduced by 270 days, or 9 months. I make that assessment knowing that the calculation of the exact number of days Mr.

Walters has been triple bunked is not known. The 264 days gleaned from the incomplete records provided is in my view a conservative estimate. Some triple-bunking, on an irregular and exigent basis, might be justified and might not amount to a s. 12 violation. But the extent of it in Mr. Walters’ case requires a remedy. Mr. Walters has been subjected to something approximating 9 months of custody going far beyond unpleasant.

That level of credit is appropriate in my view to remedy the s. 12 breach. [ 109 ] With respect to the absence of clean underwear, this is something that added to the unpleasantness and discomfort of the Edmonton Remand Centre. It is something that went beyond “hard time”. For this circumstance, I conclude that Mr. Walters should receive credit of 3 months for this Charter violation. [ 110 ] The other issues will be dealt with, to the extent they are relevant, with the analysis on pre-sentence custody and credit for it. 8. What credit should Mr.

Walters be given for pre-sentence custody? [ 111 ] The Crown acknowledges that Mr. Walters should receive 2 for 1 credit; Mr. Walters seeks 3 for 1 credit. [ 112 ] The charges pre-date the “Truth in Sentencing” amendments to the Criminal Code , so there is no legislative restriction in the court’s ability to give greater than 1 for 1 credit for remand time. [ 113 ] In support of his position, Mr. Walters cites R. v. Taylor , 2002 ABQB 266 , R. v. Whittaker , 2001 ABQB 873 , R. v. Buggins , 2002 ABQB 90 and R. v. Chan , ( supra ) where 3 for 1 credit was given in each case. [ 114 ] Mr.

Walters also notes the recent publicity given to Travis Vader, an inmate who was placed on protective custody to protect him from other inmates because of publicity surrounding crimes Mr. Vader was suspected of, but was not charged with. Protective custody in such circumstances was treated by Veit J. as a factor warranting increased credit for pre-trial custody. [ 115 ] The Crown cites a number of cases in this area:

R. v. W. (L.W.) , 2000 SCC 18 ; R. v. Sooch , 2008 ABCA 186 ; R. v. Roberts , 2005 ABCA 11 ; R. v. N. (R.A.) , 2003 ABCA 326 ; R. v. Parkhurst , 2008 CarswellAlta 2272 (Q.B.) ; R. v. Barnes , 2006 CarswellAlta 2456 (P.C.) ; R. v. Moffet , 2006 CarswellAlta 2430 (P.C.) ; R. v. Fujii , 2002 ABQB 805 ; R. v. La , 2003 ABQB 391 ; and R. v.

Groves , 2006 ABPC 51 . [ 116 ] Notably, in Parkhurst , Bast J. refused to give 3 for 1 credit for triple bunking, stating: ...there comes a point in time when someone with a record like yours, in particular for failing to appear or being unlawfully at large and someone who commits offences while on release for other similar offences, there comes a point in time when that person just is not released from custody and I think you have reached that point.” (At para. 19) [ 117 ] I agree with the sentiments expressed by Bast J., but distinguish them from the situation here, where Mr.

Walters has no prior record and was not on release at the time any of the offences were committed. [ 118 ] The Crown’s cases generally provided 2 for 1 credit, but note that there is a discretion with respect to that practice and a convicted person has no entitlement to such credit. ( N.(R.A.) ) Greater than 2 for 1 credit was not supported on account only of being in protective custody ( Sooch ). [ 119 ] Roberts deals with the two-fold purpose for greater than 1 for 1 credit, being “hard time” and the absence of credit for parole.

Roberts is helpful for its observations on parole practices. [ 120 ] In Barnes , Skene P.C.J. declined to grant greater than 2 for 1 credit on account of “lower standards by way of clean clothes and exercise times”. The overcrowding there, justifying 2 for 1credit, was double bunking and not triple bunking. [ 121 ] In Groves , Fradsham P.C.J.gave 2.5 for 1 credit on the basis that remand conditions were materially worse than those that would have been endured in a post-sentencing facility. [ 122 ] In making an assessment in this area, I like the approach taken by McIntyre J. in Chan .

There, he essentially considered that 2 for 1 credit was the “norm” for remand time because it was “hard time”. He granted 3 for 1 credit for what he described as “exceptionally hard time” relating to denial of vegetarian meals for religious purposes, frequent strip searches, and other things found to be greater than “hard time” (see para. 223). [ 123 ] Here, I note that because of the violent nature of Mr. Walters’ offences, he is likely to serve at least 50% of his sentence before being considered for parole. He may have to serve 2/3 of his sentence. In such circumstances, 2 for 1 credit is generous.

But the concept of giving greater than 1 for 1 credit for remand time has a two-fold rationale: parole and hard time. Any generosity towards violent offenders unlikely to gain early parole is still offset by the well-noted and acknowledged hard time endured by those in the Edmonton Remand Centre.

[ 124 ] Indeed, 2 for 1 credit for non-violent offenders may only address parole eligibility issues, and ignores the prospect of release on temporary absences after serving only 1/6 of the sentence. For non-violent offenders, 2 for 1 credit may in fact give no credit for the hard time. [ 125 ] Here, Mr. Walters is generally fairly treated by 2 for 1 credit, subject to a determination of whether any of his remand time was “exceptionally hard” time. [ 126 ] In that regard, I have already addressed overcrowding and clean underwear as Charter breaches.

I do not see segregation by itself as something going beyond hard time, especially when it is necessitated by the nature of the offences the inmate is charged with. But confinement to a cell for 23 hours a day, with limited access to gymnasium facilities and even the outdoors, and facilities available to other inmates such as church services, is in my view “exceptionally hard” time. [ 127 ] Enduring a lengthy infestation by lice also amounts to exceptionally hard time. So is any name calling discrimination against Mr. Walters. [ 128 ] In my view, something beyond 2 for 1 credit is appropriate.

The exceptionally hard time should result in credit of 2.25 to 1 for all time on remand. 9. What period of time for the immigration offence should be deducted? [ 129 ] Mr. Walters was sentenced to 3 months for the immigration offences. Mr. Willson argues that 1 month should be deducted from the pre-sentence custody period on account of that sentence. That is on the assumption that Mr. Walters would have been released after serving 1/3 of his sentence had he not been in custody pending the trial of these charges. He would have been out on statutory release after serving 2/3 of that sentence.

My understanding is that there are different parole considerations for “provincial” (less than 2 years) sentences as opposed to “federal” sentences. I conclude that it is likely that Mr. Walters would have been released on those non- violent offences after serving no more than 50% of the sentence. As a result, 45 days should be considered to be serving time as opposed to remand time. Conclusion on Credits [ 130 ] By my calculation, Mr. Walters has been in custody for 909 days to February 1, 2012. 45 days of that should be treated as time served for the immigration offences. The pre-sentence custody period Mr.

Walters is entitled to credit for is thus 864 days. Mr. Walters is thus entitled to a credit against his sentence in the amount of 2045 days, based on 2.25 to 1. [ 131 ] I have already determined that Mr. Walters should receive a reduction of 9 months on account of the triple bunking, and 3 months for the lack of clean underwear. He is also entitled to a credit of 4 months (16 weeks) for the initial s.7 breach. The total credits are therefore 1 year (52 weeks) plus 292 weeks plus 16 weeks for a total of 360 weeks. [ 132 ] Mr.

Walters global sentence of 14 years (728 weeks) is reduced to a remaining sentence of 368 weeks (7.08 years). Additional Orders [ 133 ] There will be the standard orders, namely that Mr. Walters will be registered in the Sex Offenders Registry for his lifetime; that

he provide a sample of his DNA; that he be subject to the weapons prohibition under s. 109 for life. The prohibition under s. 110 is set at 20 years. Exhibits will be forfeited to the Crown on the expiry of the appeal period. The victim fine surcharge is waived. Concluding Comments [ 134 ] I am grateful to counsel for the professional manner with which this trial and the sentencing process were conducted. Heard on the 9 th day of November, 2011, 14 th day of December, 2011 & 21 st day of January, 2012. Dated at the City of Edmonton, Alberta this 1 st day of February, 2012. R.A. Graesser J.C.Q.B.A.

Appearances: Julie Roy & Lawrence Van Dyke Alberta Justice for the Crown David R. Willson Law Offices of David R. Willson for the Accused