R. v. L.C., 2011 NSPC 35

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. L.C., 2011 NSPC 35 Date: June 22, 2011 Docket: 2223688; 2223690 Registry: Halifax Her Majesty the Queen v. L.C. SENTENCING DECISION Editorial Notice Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Judge Anne S. Derrick Heard: June 9, 2011 Decision: June 22, 2011 Charges: Section 145(3) of the Criminal Code and section 5(2) of the Controlled Drugs and Substances Act Counsel: Jeffrey Moors - Crown Attorney Luke Craggs - Defence Counsel

By the Court : The Facts of the Offences [ 1 ] L.C. was arrested by Halifax Regional Police just after midnight on September 9, 2010 for breaching a 12 p.m. to 6 a.m. curfew condition of a recognizance. [ 2 ] Just prior to the arrest being effected, police officers saw L.C. throw a cell phone on the ground. When he was searched incidental to the arrest, 5.13 grams of crack cocaine were found on him in the right front pocket of his hooded sweatshirt.

He was also carrying $110 – five $20 bills and one $10 bill. [ 3 ] On November 16, 2010 L.C. pleaded guilty to possession of the crack cocaine for the purpose of trafficking and the breach of his March 31, 2010 recognizance. [ 4 ] L.C. has been on remand since September 9, 2010. On September 10, 2010, a bail hearing was started but not concluded. The continuation of L.C.’s bail hearing was adjourned several times at his request before being abandoned. As a consequence, L.C. has been consenting to his remand throughout. The Presentence Report [ 5 ] L.C. is 19. He has completed Grade 11.

A pre-sentence report dated January 10, 2011 notes that L.C. has grown up in a stable and loving family home with his mother, step-father and siblings. [ 6 ] L.C. has a 21 year old girlfriend. They have a three year old son together and a new baby born in February 2011. They have lived together at both his and her parents’ homes.

L.C.’s mother says they are excellent parents and enjoy a positive relationship. [ 7 ] L.C.’s mother also noted in the presentence report that L.C. is “an excellent young man, well known and respected” in their neighbourhood. [ 8 ] Although L.C. reported that his school attendance and behaviour had not presented any problems in the last year he attended, that being 2009-2010, the principal of the high school painted a different picture. L.C. had poor attendance and got into trouble. His performance in the high school * programme showed a different and much more positive side.

He was described by his coach as consistently presenting a positive attitude, always respectful and consistent in his attendance at practices, in fact, much more so than many of the other players. A good athlete who worked hard, according to his coach, L.C. did everything that was asked of him. [ 9 ] L.C. also got good reviews from an employer he worked for part-time doing *. He was described as an excellent worker, learning quickly, following direction well and showing initiative in getting down to work.

According to his employer, he never showed any negative attitude and got along well with his co-workers. [ 10 ] * is the career L.C. would like to pursue. He indicated in the presentence report that he would like to finish high school and the training and certification necessary to work as a *.

[ 11 ] The information I have to consider for L.C.’s sentencing does not shed much light on his descent into drug trafficking. The most telling insight probably comes from his mother who expressed concern in the presentence report that his choice of associates has led him into trouble. According to L.C.’s mother he lacks positive role models outside of his family. [ 12 ] L.C. does not have an addiction or substance abuse problem. He reports using alcohol infrequently.

According to the presentence report he indicates his use of cannabis is “occasional and is non-problematic.” [ 13 ] Although L.C. did not show his best side in his interview for the most recent presentence report - he appears to have been unforthcoming and did not have much to say – the probation officer who supervised L.C. as a youth experienced him as “very personable” with “good social skills...intelligent and capable of doing well.” This probation officer noted L.C.’s “strong supportive family” and the fact that L.C. has the “skills and ability to make a positive contribution to society.” L.C.’s Prior Record [ 14 ] L.C. has seen to it that he will not have the ability to make a positive contribution to society for some time to come.

Being found in possession of crack cocaine for the purposes of trafficking is bad enough but what makes the situation much worse for L.C. is his record. [ 15 ] L.C. has three prior convictions for trafficking as a young person under the Youth Criminal Justice Act . These three offences were committed on April 23, 2008, September 29, 2008, and October 23, 2008. For these offences and various types of breaches, L.C. was sentenced on July 23, 2009 and November 19, 2009. [ 16 ] L.C.’s April 23, 2008 trafficking offence involved the sale of 12 Dilaudid pills. He received one year probation.

On September 29, 2008, L.C. was observed by police passing an item to another individual. That individual was found with crack cocaine and cash; L.C. was arrested with $715 and two cell phones. Not even a month later, on October 23, 2008, L.C. first sold two stones ($40 worth) and then three stones ($60 worth) of crack cocaine to an undercover police agent. [ 17 ] L.C.’s sentencing for the September and October 2008 trafficking charges proceeded on November 19, 2009 in the Youth Justice Court.

During L.C.’s sentencing hearing before me, the Crown played an extract of Judge Jamie Campbell’s comments from L.C.’s sentencing on November 19, 2008. The issue was whether L.C. was custody-eligible under section 39(1)(

d) of the Youth Criminal Justice Act. The following is a portion of that extract: …Each case is considered on its own unique set of circumstances. Here the quantity and type of drugs are significant. [L.C.] was involved in the sale of crack cocaine. Crack is a dangerous and highly addictive drug that exacts a heavy price from the community. There are no casual or recreational crack users. People are quickly within its remorseless clutches. The sale of that particular drug is an aggravating factor. [L.C.] was not a major supplier of drugs or even a very significant retailer.

He was described as a street level retailer. The amounts sold were not substantial. Yet, he was not a young man passing on some drugs to a friend, or a person who made a one time for profit transaction… [L.C.] was carrying on a business. He had 715 dollars in his possession on September 28 th and was taking orders by cell phone. While it has been suggested that he was a mere puppet used by someone over him in the supply chain, he was in fact carrying on a reasonably sophisticated operation motivated by greed. [L.C.’s] own circumstances are worthy of note.

In addition to the charges here, he was convicted of drug related charges in Bridgewater with respect to an incident that happened only months before those in respect of which he is being sentenced today. The offence in Bridgewater took place in April 2008. A few months later in September he was at it again, this time with crack. He was released on an Undertaking. In about a month he was caught dealing crack cocaine again.

Involvement in the Youth Criminal Justice Act system seems to offer no impediment and appears to have been seen as a manageable business risk. [L.C.] was not a drug addict trying to sell drugs to support his addiction. He is not a person who comes from a family environment where such activity was seen as being somehow legitimate. He does not suffer from psychological or mental disabilities that would have made him an easy target. [L.C.] saw an easy way to make money, balanced the risks against the benefits and took the calculated risk to sell crack. He did not act in a moment of poor

judgment. When caught, he did not stop. The benefits outweighed the risks. When caught again, he didn’t stop. Now he’s been caught three times. … …[L.C.] has shown that threats have no impact on him, as compared to the lure of easy money. Releasing him into the community with only the threat of incarceration over his head would be translated by him as having outsmarted the system once again. He is not a person who needs one more chance. He is a person who needs finally to understand that actions have consequences and that being a smooth operator will not exempt him from those consequences.

If he does not understand that very soon, given his age, he will be looking at a very long time in adult jail.

Sending a young man to jail is never a happy option, especially a young man with potential and a young child. [L.C.] will not realize his potential if he continues to live in a world where he believes that there is always one more chance or that he can remain one step ahead of the consequences of his actions…If [L.C.] does not soon appreciate that there are meaningful consequences of his actions he will be at substantial risk of becoming involved in the illegal drug trade as an adult with potentially monumental consequences for him. [ 18 ] It is a grim fact that L.C. is now where Judge Campbell warned he might end up: facing sentencing as an adult for his ongoing involvement in the illegal drug trade.

The Crown and Defence Positions on Sentence [ 19 ] The Crown has taken a hard line on what constitutes the appropriate denunciation and deterrence in L.C.’s case – four years in a federal penitentiary. The Defence submits that the sentence should be one of two years. There is the issue of L.C.’s remand credit which I will also address. [ 20 ] It is L.C.’s recent related record that drives up the Crown’s position: the Crown indicates that with no youth record, a two year sentence would be appropriate.

In the Crown’s submission, L.C.’s youth record shows that he continued to disregard the messages he was being sent through the sentences handed down by the Youth Justice Court. The Crown views L.C. as having continued to make a cost-benefit calculation. There is nothing to suggest otherwise.

The Crown submits it is necessary to drive the message home to L.C. that trafficking in crack cocaine is going to result in exactly what he was warned about in Youth Court: the monumental consequence of a long sentence in a federal penitentiary. [ 21 ] The Defence looks for L.C.’s sentence to offer the opportunity for him to get back to the community sooner and with less negative effects. Counsel for L.C. expressed concerns about L.C. becoming habituated to incarceration and adapting to jail.

He argues that an overemphasis on specific and general deterrence will “reduce L.C.’s ability to turn his life around.” [ 22 ] L.C.’s Defence counsel points to L.C.’s positive presentence report, his guilty pleas and acknowledgement of guilt and the fact that L.C. has shown a pro-social aptitude. These factors suggest that L.C. is susceptible to being rehabilitated and has the potential to become a good citizen. He has certainly shone as a member of his * team and as an employee. [ 23 ] The Defence has also emphasized the fact that L.C. is a young man and the father of two small children.

A lot rests on his rehabilitation: he has his whole adult life ahead of him and the responsibility to support and mentor his young family. Sentencing Principles and Analysis [ 24 ] L.C. has been riding for a fall. He could not have received a message that was any plainer about the consequences of his drug trafficking activities than the one delivered to him by Judge Campbell at his last youth sentencing on November 19, 2008. He has squandered the opportunity to avoid what he is now facing.

Instead of being off to university playing *, as I presume he might have been had he developed his gifts instead of his drug connections, L.C. is going to be spending many more months of his young life locked up in a cell.

[25] My task is to determine the length of L.C.’s sentence. It is a dismal task. Right now, the signs are not encouraging, given L.C.’srepeated trafficking. It is going to take considerable discipline and determination by L.C. to reverse the present trend. The presentencereport does indicate that L.C. would like to go back to school and work. These objectives alone are not enough. L.C. must also commithimself to no further involvement in the illegal drug trade.

Additional incarceration and the negative associates and influences that arepresent in the prison context will undoubtedly make this more challenging for L.C. [26] Sentencing for possession for the purpose of trafficking is governed by the purpose and principles of sentencing recited in section10(1) of the Controlled Drugs and Substances Act (CDSA) and sections 718, 718.1 and 718.2 of the Criminal Code. Section 10(1) of theCDSA provides: 10

(1) Purpose of sentencing -- Without restricting the generality of the Criminal Code, the fundamental purpose of anysentence for an offence under this

Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe societywhile encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victimsand to the community. [27] The sentencing provisions of the Criminal Code relevant to this sentencing are: 718. Purpose -- The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respectfor the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

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 Fundamental Principle -- A sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. [28] Sentencing principles found in

section 718.2 of the Criminal Code that are relevant in L.C.’s case are proportionality, parity andrestraint and the requirement to take into account aggravating and mitigating factors. [29] The aggravating and mitigating factors in this case are apparent from these reasons. L.C.’s recent relevant youth record isaggravating both under the common law and statutorily. (section 10(2)(b), CDSA) It is also aggravating that he had no sooner finishedthe probation order associated with his last youth sentence than he was arrested for the current offences.

His guilty plea, his youth andhis potential are all mitigating factors. [30] Youthfulness however does not overcome the court-sanctioned emphasis on denunciation and deterrence that characterizes cocainetrafficking cases. The imperative of incarceration for cocaine trafficking has been recently documented and reaffirmed in R. v. Knickle,2009 NSCA 59 , [2009] N.S.J. No. 245 (N.S.C.A.).

In Knickle, a case that concerned a sentencing for possession for thepurpose of trafficking in cocaine, the Nova Scotia Court of Appeal referred to the fact that, “Numerous…sentencing decisions from thiscourt repeatedly and consistently emphasize that persons involved in trafficking cocaine will be subject to sentences of incarceration.”(paragraph 18) [31] Notwithstanding “ample authority for the proposition that sentences for youthful offenders should be directed at rehabilitation andreformation, not general deterrence” (R. v. Bratzer 2001 NSCA 166 , [2001] N.S.J. No. 461 (N.S.C.A.)paragraph 40), when it

comes to sentencing for cocaine trafficking the appellate emphasis is unequivocal: deterrence is the primary consideration and a federalpenitentiary term is the norm. (R. v. Steeves, 2007 NSCA 130 , [2007] N.S.J. No. 532 (N.S.C.A.) paragraphs 18, 19 and 20)Possession of cocaine for the purposes of trafficking typically results in sentences of two years or more. (R. v. Dawe, 2002 NSCA 147, [2002] N.S.J. No. 504 (N.S.C.A.), paragraph 6) [32] The facts here indicate that, using the Fifield analysis (R. v. Fifield, [1978] N.S.J. No. 42 (N.S.S.C., App. Div.), L.C. was operatingas a petty retailer.

There is no explanation for his involvement in the drug trade other than for profit. He is not an addict or someonestruggling with dire financial circumstances and the facts do not disclose that he made a bad judgment in a misguided effort to assist afriend as is sometimes the case. (R. v. David, 2004 NSSC 241 , [2004] N.S.J. No. 477(N.S.S.C., paragraph 5) Nothing suggeststhat L.C.’s motivation for repeatedly trafficking has been anything other than personal gain. [33] Courts in Nova Scotia have directed their strongest condemnation at drug-dealing motivated by greed.

Deterring cocainetraffickers pursuing gain was emphasized even for cases where “…relatively small amounts of the drug are involved.” (R. v. Byers,[1989] N.S.J. No. 168 (N.S.S.C., App. Div.) Indeed, greed as the motivating force in drug trafficking has been regarded as an aggravatingfactor. (R. v. Tokic, [2002] N.S.J. No. 80 at paragraph 13 (N.S.S.C.); R. v. David, 2004 NSSC 241 , [2004] N.S.J. No. 477 atparagraph 4 (N.S.S.C.)).

Having said this, L.C.’s greed in this case was on a relatively small scale which suggests to me that otherfactors were in play, not the least of which, to go back to his mother’s concerns, probably included negative influences and a poor choiceof associates. [34] I am really at a loss to understand why, with his obvious strengths and a loving and supportive family, L.C. has been unable to stepaway from drug dealing. I hope he can sort out what it is about his circumstances that has led him to make the choices he has, choicesthat have consequences for his family as well as for him.

He has to want more for his children than what he offers them now: an absent,incarcerated, drug-dealing father. [35] A fit and proper sentence for L.C. must appropriately balance the principles of proportionality, parity, and restraint. And,notwithstanding the requirement to emphasize denunciation and deterrence, it cannot disregard his rehabilitation, especially given hisage. In my view the Federal Crown’s recommendation for a four year sentence fails to give sufficient attention to the issue ofrehabilitation and lacks the nuanced approach that sentencing L.C. requires.

It exacts too high a price for L.C.’s first offence as an adult.L.C. is a nineteen year old whose longest previous custodial sentence has been 60 days in a youth facility.

A penitentiary term of fouryears is disproportionate to the offence (a single count of possession for the purpose of trafficking cocaine) and unmindful of thepersonal characteristics of the offender - a 19 year old father of two with the apparent potential to rehabilitate himself. [36] The Defence has urged me to impose a two year sentence on L.C., primarily because of his youth and the risk that incarcerationwill entrench his criminal tendencies.

It is most likely that a two-year sentence is what L.C. would be facing if he came before the courtson a single count of trafficking in cocaine with no prior related and recent record. Parity requires then that L.C. receive something morethan two years. [37] I have concluded that a sentence of thirty months amply satisfies the imperatives in this case of denunciation and deterrence drivenby the nature of L.C.’s crime and his prior record.

A sentence of this duration acknowledges the aggravating factors of L.C.’s choice tocontinue drug trafficking notwithstanding a strong and pointed warning of the consequences and the fact that he had only just finished hislast youth sentence when he was once again in possession of cocaine for retail, profit-making purposes. It ensures however that L.C. willhave the opportunity, before too much more time has passed, to return to the community, perhaps with his rehabilitation underway ifthere are opportunities for rehabilitation available to him in custody.

He will not only have to take up any such opportunities, he will haveto distance himself from criminal associates and construct a plan for reintegrating successfully with his family and community. Credit for Time on Remand [38] The issue I must now address is L.C.’s remand credit. He has been on remand since September 9, 2010, a period of nine and a halfmonths. The calculation of remand credit is governed by sections 719(3) and 719(3.1) of the Criminal Code, those sections of the Codehaving been judicially considered by the Ontario Court of Justice in R. v. Johnson, 2011 ONCJ 77 , [2011] O.J. No. 822.

Iadopted the reasoning in Johnson in R. v. Dann, [2011] N.S.J. No. 217 ( paragraphs 30 – 40) and also in R. v. Billard, [2011] N.S.J. No.310 (paragraphs 38 – 41). [39] Sections 719(3) and 719(3.1) read as follows: 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 but the court shall limit any credit for that time to a maximum of one day for each day spent in custody. 719(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). [ 40 ] During submissions on sentence, I asked Crown and Defence to address the remand credit issue as it relates to L.C.’s sentencing.

When it became apparent that they would require some additional time to consider the matter, I requested written submissions. I received the Defence submissions on June 10 and the Crown’s submissions late yesterday afternoon. [ 41 ] The Defence submits that in keeping with the reasoning in Johnson , as followed by me in Dann and Billard , the words “if the circumstances justify it” in section 719(3.1) should be construed to include L.C.’s remand circumstances. It is the Defence submission that L.C.’s remand situation is “…similar enough to Mr. Johnson, Mr. Dann and Mr.

Billard” to qualify him for a 1.5 to 1 remand calculation. [ 42 ] The Crown disagrees. While Mr. Moors does not assert that L.C. is statutorily disqualified from an enhanced remand credit, there having been no adverse bail determination based on L.C.’s prior record, pursuant to section 515(9.1), and no bail revocation pursuant to section 524(4) or (8), he argues that

(1) Johnson is wrongly decided , (2) that L.C. cannot make out a case for an enhanced credit based on the conditions of his remand, and (3) that L.C.’s own actions with respect to his remand disentitle him from receiving additional credit. I will examine each of these submissions separately. [ 43 ] Mr.

Moors submits that the analysis in Johnson of the loss of remission issue as a basis for justifying an enhanced remand credit should not be adopted because there is “no evidence that Parliament [in enacting sections 719 (3) and 719 (3.1) ] failed to consider or lacked insight into remand and parole issues.” (Crown Brief) However the expert evidence accepted in Johnson indicates that Parliament’s analysis was flawed, as is illustrated by the following paragraph from Green, J.’s reasons: 57 Unlike sentenced offenders, persons in pre-sentence custody do not earn remission.

If, as Professor Doob infers, Parliament's intention in passing the TIS [“Truth in Sentencing”] amendments was to achieve at least quantitative parity between offenders sentenced to incarceration after a period of pre-sentence custody and those who were on bail prior to their sentence of imprisonment, then the much more appropriate metric for crediting pre-sentence custody is one of 1.5:1 rather than a maximum of 1:1 (as prescribed in s. 719(3) ) so as to at least compensate for "lost remission".

Other than with respect to those offenders captured by the exclusionary clauses in s. 719(3.1) , no one, says Professor Doob, argues that pre-sentence custody should be accorded less credit than post-sentence custody. Yet, he cautions, that is exactly the effect of Bill C-25. Measured in human lives, TIS [“Truth in Sentencing”] means that persons detained pending their trials end up serving longer periods in custody than biographically, socially and criminally identical offenders whose incarceration does not begin until their sentencing.

In short, as Professor Doob testified, Parliament "got the arithmetic wrong". [ 44 ] Green, J. also extensively discussed the legislative facts underpinning sections 719(3) and 719(3.1) in paragraphs 80 through 106 of Johnson . I remain satisfied with my assessment that Johnson represents a sound legal analysis of the legislative language used in the sections. I further note that the Attorney General of Ontario did not appeal the decision. [ 45 ] The remaining question is whether L.C. comes within Johnson ’s ambit.

In examining this issue I will consider the other two points addressed in the Crown’s submissions: the conditions of L.C.’s remand and the circumstances that led to him remaining on remand over the past nine and a half months. [ 46 ] I agree with Mr. Moors that there is no evidence before me to support the granting of an enhanced remand credit on the basis of the conditions of L.C.’s remand. Green, J. deals with this issue in Johnson . He considered remand conditions under “Pre-Sentence Custody as Mitigation” in paragraphs 186 – 189 of his reasons and in his “Summary” at paragraph 199. I will reproduce only this

summary paragraph as it captures how the conditions of pre-trial custody should be factored into sentencing: 199 Sentencing judges retain a further discretion, in addition to and independent of s. 719, to consider as a mitigating feature any particularly onerous conditions suffered by remand offenders as they await the disposition of their cases.

While any quantitative credit authorized by s. 719 is, at the end of the sentencing exercise, deducted from an otherwise fit sentence, the assessment of a qualitative claim to hardship or oppression for which the state is said to be responsible is one of the many considerations, mitigative and aggravating, that factor into the calculus of crafting a just, appropriate and individualized sentence in any and every case. [ 47 ] The issue I am dealing with in L.C.’s sentencing is a quantitative not a qualitative one and I have nothing before me to indicate what L.C.’s remand conditions have been nor has this mitigatory issue been raised by the Defence.

[ 48 ] This brings me to the issue of L.C.’s nine and a half month remand. The Crown has outlined its history in his Brief. Using the specific dates from the endorsements on the Information, I have listened to the appearances on NOVO, the digital recording of the court proceedings, with the exception of the part-heard show cause hearing which I could not locate in the database. [ 49 ] L.C. was remanded on September 9, 2010. On September 10 his bail hearing began.

According to the Crown’s Brief, L.C. was offered a further opportunity to find a more satisfactory surety, the judge conducting the bail hearing indicating that she would not be inclined to release him on the release plan put before her.

Although there were adjournments of the bail hearing granted from September 14 to September 17, then to September 20, then to September 22, and finally to October 7, L.C. did not proceed further with his bail application and continued to consent to his remand. (The adjournments were on September 14 by the Court because, according to the NOVO log, Crown counsel was not available, and on September 17, 20 and 22 due to L.C. deciding not to continue with duty counsel and engaging private counsel. On October 7, L.C. elected Provincial Court and entered not guilty pleas.

A half-day trial was set for November 16.) [ 50 ] As the Crown notes, L.C. pleaded guilty on November 16, 2010, a date which had been set for trial. At that time, his lawyer, Lyle Howe, indicated that a presentence report would not be “particularly valuable in the circumstances.” Furthermore, the Crown advised that a joint recommendation was anticipated. Defence counsel asked for some more time before sentencing and the matter was put over to December 13. [ 51 ] On December 13, Mr. Howe requested a presentence report. He observed that L.C. “is doing dead time” so was “wearing” the consequences of a further delay.

In response to this, Mr. Moors for the Crown indicated that “it was one for one time” that L.C. was doing on remand. Sentencing was adjourned to January 13, 2011. [ 52 ] On January 13, there was a request by Mr. Howe on L.C.’s behalf for an adjournment due to the fact that L.C. was intending to apply to withdraw his guilty plea. The intended application raised the issue that L.C. would require new counsel as he had been represented by Mr. Howe when he pleaded guilty.

An adjournment was granted to January 27 and on January 27 a further adjournment was granted to February 3 so that L.C.’s legal aid representation could be perfected. On February 3, L.C. had a new lawyer, Matthew Darrah. Mr. Darrah required an adjournment indicating that an application to withdraw the guilty plea “appeared to be the direction” the matter was taking. The matter was set for February 21 at which time Mr. Darrah requested a date for the application to be heard. March 10 was set as the date. It was anticipated that Mr. Howe would be called as a witness. [ 53 ] On March 10, Mr.

Darrah requested an adjournment of the application to withdraw L.C.’s guilty plea on the grounds that Mr. Howe, who would be required to testify, wanted to speak to the Barristers’ Society and that transcripts would be required. On the next date, March 16, the transcripts were not ready. The Crown explained that the transcripts were necessary to shed light on L.C.’s intended claim that he had not understood what he was pleading guilty to. In addition, Mr. Howe, who had been subpoenaed by the Crown, was not in attendance. [ 54 ] L.C. was before the court again on April 19 with Mr. Craggs representing him. Mr.

Craggs was unable to say if the application to withdraw the guilty plea would proceed or not as he had only been recently retained. L.C. was remanded by consent to May 16 for his sentencing. On May 16 Mr. Craggs asked for a further adjournment due to having sent a lengthy letter to L.C. including case law, and a copy of the disclosure package which, Mr. Craggs indicated, L.C. appeared not to have. The letter and its contents had not made it to L.C. in the Correctional Centre. Mr. Craggs advised that L.C. did want the matter “dealt with one way or the other.” It was set over to May 27 at which time Mr.

Craggs indicated that L.C., who was not proceeding with the application to withdraw his guilty plea, had instructed him to set a date for sentencing which was expected to be contested. The sentencing proceeded on June 9. [ 55 ] My review of L.C.’s appearances since September 9, 2010 cause me to conclude that he was not dragging out his remand to manipulate the system and obtain a benefit.

In Johnson , Green, J. observed that trial judges may well discount the credit ratio that would otherwise apply where “…offenders have deliberately protracted their remand detention or otherwise endeavoured to manipulate the system…” ( paragraph 165 ) In L.C.’s case he could have been sentenced earlier this year but there was a detour in his proceedings when he explored the possibility of applying to withdraw his guilty plea. There is no reason to think he expected to secure any benefit out of the additional time he spent on remand as a result: indeed, Mr.

Moors stated in L.C.’s presence at the December 13 appearance when Mr.

Howe’s request for a presentence report meant a further delay, that it was “one for one time” L.C. was doing. [ 56 ] In Johnson protracted pre-trial custody was described as being “a function of factors beyond [an accused person’s] direct control, including limited personal and state resources, disclosure delays, case management decisions, administrative realities, and a myriad of other and often inevitable interruptions that accompany the voyage from arrest to trial.” ( Johnson , paragraph 23 ) L.C.’s remand has been protracted for reasons that, for the most part, are different than the ones enumerated in Johnson .

It could be said that the most significant

delays were within his control – he decided between January and May 2011 to pursue a possible application to withdraw his guilty plea. However there is no evidence L.C. did this to “game” the system. Beyond satisfying myself that his objective was not to deliberately extend his remand, I do not think it would be appropriate to penalize him for exploring a legal option, even where the likelihood of success may have been remote. Such a precedent would suggest judges should or even could assess the merits of an offender’s decision to contest issues in pre-trial proceedings or even go to trial.

Denying L.C. an enhanced remand credit because of how his case proceeded would be unfair. It would be even more profoundly unfair given the following facts: (1) after L.C. had entered his guilty plea on November 16, 2010, Crown counsel (Mr. Moors) advised the court that a joint recommendation was anticipated. Assuming the Crown has not changed its position on sentence, which is a very reasonable assumption to make, that must have meant Mr. Moors was expecting the Defence to join in a recommendation for a four-year prison term for L.C.

On closer reflection, L.C. may well have balked at this prospect and started reflecting on his guilty plea; and

(2) L.C. was present when Mr. Moors said on December 13 that he was doing “one for one time.” No one disputed this statement. L.C. could not have thought that he was gaining any advantage by delaying his sentencing. [ 57 ] I have found nothing that disentitles L.C. to the 1.5 to 1 remand credit contemplated by the reasoning in Johnson which held that “if the circumstances justify it” includes the loss of remission experienced by prisoners in pre-trial custody. I will not repeat my adoption in R. v. Dann, [2011] N.S.J. No. 217 at paragraphs 30 - 40 of Green, J.’s analysis in Johnson .

I will note that the legislative language in section 719(3.1) does not speak of “exceptional circumstances” which is what Mr. Moors has submitted in his Brief is required for an enhanced credit.

In paragraph 106 of Johnson , Green, J. refers to the evidence that in drafting sections 719(3) and 719(3.1), the Federal Department of Justice deliberately did not use the more common phrase “in exceptional circumstances” because “the circumstances won’t be that exceptional: they’ll be fairly common, and in the case of the parole loss and the remission loss will be universal.” ( Green, J. quoting from Hansard and the testimony of David Daubney, the head of the Criminal Law Policy

Section of the Department of Justice. ) [ 58 ] I agree with Green, J.’s conclusion in Johnson that “…but for those situations where the common law has long-recognized enhanced credit disqualification, a ratio in excess of 1:1 (and ordinarily 1.5:1) is both fair and apposite in every remand offender sentencing case warranting compensation for loss of remission.” ( Johnson , paragraph 182 ) [ 59 ] I am satisfied that section 719(3.1) which provides for up to a 1.5 to 1 remand credit “if the circumstances justify it” entitles L.C., who has not received the benefit of any remission during his remand, to a calculation of 1.5 days for every 1 day he has spent in custody since September 9, 2010.

I will note that there are statutory provisions in section 719(3.1) that disqualify a remanded offender from the enhanced ratio but I do not find that those disqualifying conditions are present in L.C.’s case. Conclusion on Sentence [ 60 ] For the reasons I gave earlier in this decision, I have concluded that a fit and proper sentence for L.C. is thirty months for possession for the purpose of trafficking in cocaine plus thirty days’ concurrent for breaching the curfew condition of his recognizance.

As a consequence of my analysis of the remand credit issue in L.C.’s case, he is entitled to have a credit of fourteen months and one week applied to the sentence I am imposing. This leaves him with fifteen months and three weeks to serve in custody. Other Orders [ 61 ] At the request of the Crown, I am signing orders for forfeiture of a cell phone and money, a firearms prohibition order pursuant to

section 109 of the Criminal Code , and a DNA order. Non-Publication of L.C.’s Identity [ 62 ] Finally, I want to comment on the fact that in these written reasons I have referred to L.C. by his initials. I have done this because of

section 110 of the Youth Criminal Justice Act which provides as follows: Subject to this section, no person shall publish the name of a young person, or any information related to a young person, if it would identify the young person as a young person dealt with under this Act. [ 63 ] L.C. is no longer a young person under the Youth Criminal Justice Act but he was, and he has a Youth Justice Court record. He is therefore a young person who was dealt with under the Youth Criminal Justice Act . To identify him would be to identify that fact which,

on a plain reading of

section 110 appears to be prohibited. I am not aware of this issue having been judicially considered. While it is correct that if L.C. was a young person under the YCJA who was being sentenced as an adult, his identity and information about his youth record could be published, that situation is specifically provided for in section 110(2)(

a) as an exception to

section 110. In the absence of any statutory or authoritative judicial clarification of the ambit of

section 110 of the YCJA , I have decided to exercise a cautious approach and am not publishing L.C.’s identity.