R. v. McKenzie-Sinclair, 2015 MBPC 5

CITATION: R. v. McKenzie-Sinclair , 2015 MBPC 5 Date: 2015 01 21 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Deborah Carlson ) Mark Lafreniere ) for the Crown ) ) and ) ) ) Heather McKenzie-Sinclair ) Joshua Rogala ) for the Accused ) ) ) ) Reasons for Decision delivered: ) January 21, 2015 KRAHN P.J. Introduction [ 1 ] Ms. McKenzie-Sinclair has plead guilty to a house break enter and theft which occurred on March 20, 2014. There are two issues for the court to decide: What is the appropriate sentence? And secondly, given that the operation of section 719(3.1) precludes Ms. McKenzie-Sinclair from receiving enhanced credit for the time she has spent in custody, is the

section constitutional or does it infringe Ms. McKenzie-Sinclair’s

section 7 and

section 15 Charter rights? Procedural History [ 2 ] On January 20, 2015, the Court invited counsel to address the Court on whether there should be a ban on publication of the accused’s criminal record since the bulk of it is a youth record. After hearing submissions, the Court imposed sentence and indicated written reasons would follow. These are those reasons. Sentence on Break and Enter [ 3 ] Let me deal first with the appropriate sentence given the circumstances of the offence and the accused’s background. [ 4 ] Ms.

McKenzie-Sinclair was on release conditions for offences of breach of undertaking, failure to comply with a youth court sentence and sexual assault on March 20, 2014. [ 5 ] On March 20, 2014, she was out walking with her boyfriend, a co-accused, at around 1:42 pm. Her boyfriend decided he wanted to break into a residence. The accused did not want to go into the residence so she waited on the doorstep and acted as a lookout

while the co-accused went into the residence at 382 Cathedral Avenue. The co-accused began to fill bags with property from inside the residence. While this was happening, the residents of the home returned to see the accused sitting on the back door steps and they saw the rear door to their residence had been kicked open. They saw Ms. McKenzie-Sinclair yell something inside the residence, which resulted in the male co-accused immediately running out of the residence carrying two bags of property. The accused and co-accused fled in different directions and the two bags were dropped.

The property was later recovered. The residents of the home gave chase and caught Ms. McKenzie-Sinclair. The co-accused got away at that time. [ 6 ] Ms. McKenzie-Sinclair was held until the police arrived. At the police station Ms. McKenzie-Sinclair gave police a statement admitting to her involvement and that she felt pressured to commit the offence. At first she would not say who pressured her. She said she felt bad for the residents of the home and she understood that what she did was wrong. After taking some time to think about it, Ms. McKenzie-Sinclair eventually identified the co-accused as Reuben Sinclair.

He is 27 years old and has a long criminal history which includes convictions for break and enter. Ms. McKenzie-Sinclair says that her relationship with Mr. Sinclair was characterized by manipulation, exploitation and physical assaults. [ 7 ] There was anywhere from $350 - $500 damage to the door of the residence. This was eventually covered by insurance, although the residents, who rented this home, had to take time off work to be present when the door was repaired. [ 8 ] The residents described the impact of this offence on them. They felt violated and scared.

They have added a security system to the residence in the hopes of feeling more secure. They now feel they cannot leave the residence without someone being there. The female resident said it feels like their home is dirty now. The fourteen year old boy who was also residing in the residence is now not comfortable staying home alone. [ 9 ] After she was charged with this offence, Ms. McKenzie-Sinclair was remanded in custody. On March 27, 2014, she appeared before The Honourable Judge Elliott, who required the Crown to demonstrate that her outstanding release should be revoked.

The Court found that the requirements of section 524(8) had been met, in that she was re-involved while on bail, and revoked her bail. She was then remanded in custody. She has not applied for judicial interim release on these charges. It is conceded by the accused that she has been detained by operation of section 524(8) and therefore section 719(3.1) operates so that she is only entitled to ask for a maximum of one for one credit for the time that she has now served in custody. [ 10 ] On April 10, 2014, she appeared before the Court on the charges on which she originally had release.

The sexual assault charge was stayed when she entered into a one year peace bond. She plead guilty to one count of breaching a curfew condition on an undertaking and after noting 41 days in custody on a one for one basis, a sentence of one day was imposed. [ 11 ] The Crown asks the Court to impose a sentence of two years. Defence counsel argues that a sentence in the range of nine months to one year is the appropriate disposition. He argues that the extraordinary hardship in Ms. McKenzie-Sinclair’s past justifies such a sentence. [ 12 ] Ms. McKenzie-Sinclair is 18 years old. Her birthday is March 1st. [ 13 ] Ms.

McKenzie-Sinclair is not a stranger to the criminal justice system and has the following convictions on her criminal record: Youth Record : 2010-06-18 Assault 1 year probation supervised with conditions Fail to Comply with Undertaking 1 year probation supervised with conditions concurrent Mischief Under $5000 1 year probation supervised with conditions concurrent Assault a Peace Officer 1 year probation supervised with conditions concurrent Assault with a Weapon 1 year probation supervised with conditions concurrent and mandatory prohibition

Fail to Comply with Undertaking 1 year probation supervised with conditions concurrent 2010-11-25 Assault with a Weapon 15 hours community service work and discretionary prohibition order 2011-04-27 Fail to Comply with Disposition 5 hours community service work 2011-07-29 Fail to Comply with Disposition 4 days pre-sentence custody and 1 year probation supervised with conditions Fail to Comply with Disposition Probation 1 year supervised with conditions concurrent 2011-12-09 Fail to Comply with Disposition 6 days pre-sentence custody, 1 day open (court appearance) and 6 months probation unsupervised with conditions 2011-12-29 Fail to Comply with Disposition 6 days pre-sentence custody, 1 day open concurrent (court appearance) and 6 months probation unsupervised with conditions concurrent 2012-01-27 Fail to Comply with Disposition 4 days pre-sentence custody concurrent 6 days open custody concurrent followed by community supervision 3

days concurrent Fail to Comply with Disposition 4 days pre-sentence custody 6 days open followed by community supervision 3 days Fail to Comply with Disposition 4 days pre-sentence custody concurrent and 6 days open custody concurrent followed by community supervision 3 days concurrent 2012-11-21 Robbery with Violence 90 days pre-sentence custody, 1 day open (court appearance) and 1 year probation and mandatory prohibition Fail to Comply with Disposition 1 day open concurrent (court appearance) followed by probation 1 year supervised with conditions concurrent Fail to Comply with Disposition 1 day open concurrent (court appearance) followed by probation 1 year supervised with conditions concurrent Fail to Comply with Disposition 1 day open concurrent (court appearance) followed by 1 year probation supervised with conditions concurrent 2013-05-24 Fail to Comply with Disposition 36 days pre-sentence custody and 1 day open (court appearance)

Fail to Comply Undertaking 36 days pre-sentence custody and 1 day open (court appearance) concurrent 2013-08-27 Fail to Comply with Disposition 53 days pre-sentence custody and 1 day open (court appearance) Adult Record : 2014-04-10 Breach of Undertaking 41 days pre-sentence custody [ 14 ] Ms. McKenzie-Sinclair has been held at the Women’s Correctional Centre in Manitoba. This is a new corrections facility which opened in 2012. This facility houses both sentenced offenders and offenders like Ms. McKenzie-Sinclair who are awaiting sentence.

The Crown advised the Court that the same programming is available to sentenced prisoners as to remand prisoners in the Alpha and Bravo unit. The Crown advised that it had filed a document from the Superintendent of this facility in the Bittern case (a case which is reviewed in more detail below). A review of this letter, which is specific to Ms. Bittern, says that the Alpha and Bravo units are the least restrictive units in the facility. Inmates, whether sentenced or on remand have access to a broad range of opportunities and amenities to assist them in addressing the issues that have brought them into custody.

The exceptions are that federal programs are for inmates serving federal sentences and offence specific programming is not available to everyone. [ 15 ] Ms. McKenzie-Sinclair advises that she did not take certain programs as they were not available to her as a remand prisoner. She says that at certain times she was in the Charlie unit – a more restricted unit where offenders are only allowed “out” for three hours a day. She says the only resources available there were to speak to an Elder which she did not find helpful. I was not told how long she was in the Charlie unit.

She has also spent some of her pretrial custody in the Alpha and Bravo units. [ 16 ] The release of offender information filed as Exhibit 2 reveals that she was admitted to Women’s Correctional Centre on May 3, 2014. She has been employed as a unit cleaner. She has not taken any programs during her period of incarceration. She met with an Elder once and a spiritual care giver twice. She went to Al-Anon once on July 24, 2014. Unfortunately, this report only covers the period up to September 2014.

It was completed in preparation for an earlier sentencing date. [ 17 ] Exhibit 2 also notes four instances where she demonstrated a lack of respect or cooperation in custody. None of these required any disciplinary actions. I have not attached any significance to these reports in my assessment of the issues in this case as they did not merit any disciplinary action. [ 18 ] The evidence in this case is lacking in terms of being up to date and specific to Ms. McKenzie-Sinclair. It is difficult for me to assess whether she would have been likely to receive earned remission on the evidence provided.

If I look only at the fact that there have been no disciplinary proceedings, she would likely have earned remission. At the same time, it is clear that the programming that was available to her, she did not take advantage of, specifically meeting with Elders and the Al-Anon program. [ 19 ] The pre-sentence report (prepared for her 2012 robbery conviction) and forensic reports filed as Exhibits 3 and 4 provided a great deal of information regarding Ms. McKenzie-Sinclair and her background. Her mother is from the Opaskwayak Cree Nation and her father is from War Lake First Nation. She has four siblings. Ms.

McKenzie-Sinclair and all of her siblings are permanent wards of Child and Family Services. Her growing up years reveal a picture of instability. She has been placed in over 50 different foster homes, group homes, hotel placement and locked facilities, such as Knowles Centre. The pre-sentence report discloses that some of the reasons these placements broke down were her going missing, breaking rules, failing to attend school, tantrums, verbal abuse, rudeness, substance abuse and re-involvement with criminal charges. [ 20 ] At 16, she had already had 13 earlier admissions to the Manitoba Youth Centre.

The pre-sentence report details her history of admissions to the Youth Centre and shows that her periods of time spent in the community were short-lived before she would be back in custody with additional charges. These also reveal that a significant amount of resources have been expended in an effort to provide some stability and programming to Ms. McKenzie-Sinclair. This includes treatment at the Behavioral Health Foundation and placement in a locked facility, the Knowles Centre. These have not been successful.

She was placed with her extended family members and these placements broke down. [ 21 ] The report notes the Gladue factors that have impacted her life: she was raised in poverty, in a home with domestic violence, sexual abuse, racism, substance abuse, emotional abuse, lack of attachment, lack of employment, poor housing, depression, poor parenting, dysfunctional family and personal relationships. Ms. McKenzie-Sinclair’s history is such that she now represents a third generation of the cycle of broken lives as a result of colonization and the impact of residential schools.

She has a history of associating or being friends with gang members. There are school reports of her doing fairly well academically but her aggressive attitude and lack

of attendance interfered with her education. [22] Ms. McKenzie-Sinclair’s lawyer pointed to Exhibit 4, an assessment from Manitoba FASD Centre which confirmed that she didhave significant prenatal alcohol exposure. While she did not meet the Canadian Diagnostic Guideline criteria for an alcohol relateddiagnosis, there were severe deficits in executive function.

The report notes that “impairment in executive function often shows up aspoor judgement, inability to understand consequences and a requirement for external monitoring beyond that usual for age.” She alsohad borderline impairments in memory, attention regulation, academics, especially math and borderline IQ results. [23] Ms. McKenzie-Sinclair admits to drug use since age 9 and alcohol use since 13 years of age. [24] The pre-sentence report prepared when she was 16 notes “Heather requires structure and support if she is to succeed” (at page29). In the same report, she was assessed as a very high risk to re-offend.

This assessment has been bourne out in the subsequentconvictions that appear on her record, including this break and enter conviction. [25]

Section 718.2(

e) requires a judge to consider all available sanctions, other than imprisonment, that are reasonable in thecircumstances with particular attention to be paid to the circumstances of aboriginal offenders. In Ipeelee, 2012 SCC 13 ,[2012] 1 S.C.R. 433; 2012 SCC 13 and Gladue (SCC), [1999] 1 S.C.R. 688, the Supreme Court of Canada elaboratedon the circumstances a sentencing judge needs to consider for aboriginal offenders. The systemic and background factors, which areabundantly present in Ms.

McKenzie-Sinclair’s case, must be considered in order to determine how they impact on her moral culpabilityin relation to the offence. [26] Defence counsel pointed to page 28 of the pre-sentence report where 24 Gladue factors are listed which have impacted Ms.McKenzie-Sinclair. He argued that this list was lengthier and more extensive than he had seen in other reports. Defence counsel advisedthe court that the child caring agency has sought an extension of care for Ms. McKenzie-Sinclair so that they can continue to providesupport for her.

At this point, the extension of care is to her 19th birthday, which is now only a few months away. They hope to placeher in the Transition Education Resources for Females (TERF) program. This is a group home facility which works specifically withthose who have been sexually exploited. He argues that this program will be able to specifically target some of Ms. McKenzie-Sinclair’sneeds and warrants a shorter incarceratory sentence. [27] I am satisfied that for Ms.

McKenzie-Sinclair, her history of instability has resulted in a lack of a sense of belonging and herimpairments in executive functioning contributed to her choice of boyfriend, someone nine years older than her with a significantcriminal history. I am satisfied that the pressure she felt to go along with him on this residential break and enter, particularly since hehad been physically violent with her in the past, would have been very hard for her to resist. The fact that she was sitting on the doorstepof the residence and refused to go inside, reflects that she was not fully committed to this criminal offence.

I also accept her explanationthat this was not a planned and premeditated offence for her. I find that her role was less than that of the co-accused, although stillsufficient to clearly make her a party to the offence because she was there to act as a look out. Her role also helped the co-accused toescape on the date of the offence. [28] The Crown points to R. v. Muswagon (MB CA), 1993 CarswellMan 259, 88 Man.

R. (2d) 319 where theManitoba Court of Appeal said: absent exceptional circumstances, persons who commit the offence of break and enter of a dwelling house should ordinarily receive asentence in the vicinity of two years. (at para. 4). [29] It is well recognized that the impact on the victims of residential break and enters is significant as their personal privacy andsafety has been violated. These impacts can clearly be seen in this case. [30] It is the information regarding Ms. McKenzie-Sinclair’s background and her role in this offence that have persuaded me that inMs.

McKenzie-Sinclair’s case a sentence of two years is not appropriate. And yet her criminal history, even though this is her first adultconviction, is significant. Using two years as a starting point, I find that the sentence should be reduced given some diminishment inMs. McKenzie-Sinclair’s moral culpability resulting from her disadvantaged and troubled background and her role in the offence. [31] And yet, in my view the sentence cannot be reduced as much as in some of the cases reviewed in R. v. Scanlon (MB CA), 1995 CarswellMan 332, 107 Man.

R. (2d) 190 where the Manitoba Court of Appeal upheld sentences which included anon-incarceratory sentence and periods of incarceration ranging from six to twelve months. The Court commented that an exhaustive listof what constitutes exceptional circumstances is not possible to delineate. In some cases, “unusual and hopeful signs of rehabilitation”were present. These signs are not present in this case as the accused has availed herself of only the most minimal programs or treatmentwhile incarcerated. Her criminal record shows a regular and consistent record of breaching court orders.

After weighing all of thecircumstances in this case, including her age, her Aboriginal background, her reduced role in the offence, her criminal record, I haveconcluded that the appropriate sentence for Ms. McKenzie-Sinclair is one of 15 months. I turn now to consider what credit she should begiven for the time she has spent in pre-trial custody. [32] Ms. McKenzie-Sinclair has been in custody for 286 days, or 9 months and 11 days. If she were to be credited for this time at 1.5for every day she has spent in custody that would amount to 429 days or just over 14 and a half (14.65) months. Ms.

McKenzie-Sinclairis precluded from seeking 1.5 credit by operation of section 719(3.1) because she committed the break and enter offence while on releaseconditions in the community. [33] She argues that Parliament, in removing a sentencing judge’s discretion to consider giving enhanced credit for PSC, her andoffenders like her (who are alleged to have committed an offence while on release), have their

section 7 and

section 15 Charter rightsviolated. [34] Before I consider the constitutional arguments, let me comment on two other issues, the publication of Ms. McKenzie-Sinclair’scriminal record which consists mostly of youth court convictions and the issue of stare decisis and judicial comity.

Publication of a Youth Court Record [35]

Section 110 of the Youth Court Justice Act provides as follows: 110.

(1) Subject to this section, no person shall publish the name of a young person, or any information related to a young person, if itwould identify the young person as a young person dealt with under this Act. [36] Counsel for Ms. McKenzie-Sinclair argued that she should be entitled to the protection of this section. [37] The Crown relies on R. v. Carvery, 2012 NSCA 107 (appeal to Supreme Court of Canada dismissed on other grounds). Therethe Court concluded that

section 110 does not protect the identity of a person who is now an adult from having his identity revealed. Mr.Carvery also had a youth court record which was significant in that proceeding. [38] The Nova Scotia Court of Appeal held that the usual, constitutionally-enshrined open court principle should be applied to Mr.Carvery as an adult. [39] Furthermore, the Court of Appeal concluded, The respondent was an adult. He no longer came within the concern that publication or disclosure of his identity might hinderrehabilitation by stigmatization or premature labelling of a youth in his or her formative years (Re.

F.N., 2000 SCC 35 , [2000] 1S.C.R. 880; Re Southam Inc. and The Queen (1984), (ON SC), 48 O.R. (2d) 678 (H.C.), aff’d (1986), (ON CA), 53 O.R. (2d) 663 (C.A.), leave to appeal to the Supreme Court of Canada refused, [1986] 1 S.C.R. xiv.). (Carvery atpara. 94) [40] The Court of Appeal also pointed out that section 110(2) of the Youth Criminal Justice Act provides an exception to the non-publication of a young person’s identity when that young person has received an adult sentence.

The Court concluded that it would benonsensical to protect the identity of an adult with a youth record and not the record of a youth with an adult record (at para. 96). [41] And finally, the Court in Carvery held that this

interpretation was consistent with section 120(6) which provides that the part ofthe Act that deals with “Publication, Records and Information” is no longer in effect if the offender is convicted as an adult within fiveyears of his youth record (at para. 97). The youth record is then to be treated as an adult record. [42] Ms. McKenzie-Sinclair committed this break and enter, 20 days after she turned

Section 110 of the Youth Court Justice Actis restricted by its wording to young persons under the Act. I adopt all of the foregoing reasons in concluding that she is no longerentitled to the benefit of non-publication of her youth criminal record. Judicial Comity and Stare Decisis [43] This issue arises in this case because my colleague Judge Carlson has already ruled on similar arguments and found that theportion of section 719(3.1) at issue in this case violates

section 7 and

section 15 of the Charter in R. v. Bittern 2014 MBPC 51. [44] Judicial comity and stare decisis are legal principles that aid consistency and predictability. In R. v. Kehler 2009 MBPC 29,Judge Smith provided a helpful review of the principles of stare decisis and judicial comity. In Kehler, Judge Smith was asked not torely on judicial comity and determine the issue afresh.

The issue confronted in that case was whether legislative amendments whichrequired more evidence before doubt could be cast on the accuracy of breathalyser readings, and therefore arguably narrowed or removedpotential defences, should apply retrospectively. [45] Stare decisis is the legal principle that when a legal issue has been determined and decided, other courts should follow thatdecision.

The “first arm” of the stare decisis is the requirement to follow higher courts who have decided the same issue: Kehler atparas. 18 and 19. [46] Smith J. points out that an exception to this general rule that lower court judges are bound by the decisions of a higher court iswhen the higher court is exercising concurrent jurisdiction and not sitting in review, exercising its appellate jurisdiction (at para. 20). [47] The second arm of the principle of stare decisis is “as a general rule, a judge [should] not decide a legal matter or issuedifferently that a judge of the same court.” Kehler at para. 24.

As pointed out in Kehler, some courts have used this second arm of staredecisis and the principle of judicial comity interchangeably. [48] Judicial comity has been defined as “a non-binding convention or protocol of “politeness”, the purpose of which is to fostercourtesy and friendly civility among judges of the same court, and to complement the objectives of stare decisis.” R. v. Butchko 2004SKQB 140 at para. 25; see also R. v. Letourneau 2010 ABQB 714 at para. 134. [49] R. v.

Hansard Spruce Mills Ltd., (BC SC), [1954] 13 W.W.R. (N.S.) 285 at 286 is often cited for theproposition that judges should follow judgments of their brother or sister judges unless: (

a) Subsequent decisions have affected the validity of the impugned judgment; (

b) It is demonstrated that some binding authority in case law or some relevant statute was not considered; (

c) The judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial judges, where the exigencies of thetrial require an immediate decision without opportunity to fully consult authority. See Kehler at para. 25.

[50] In Kehler, Smith J. concluded that she would follow the decisions of two other members of the Provincial Court because shehad not been persuaded they were wrong. She found there should be “good reason” to depart from those decisions given the value thatconsistency and predictability offers to the litigants (at para. 45 and 47.) [51] The Supreme Court more recently in Canada (Attorney General) v.

Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 in consideringstare decisis at paragraph 41 noted that a legal issue can be revisited by a trial judge if there have been significant developments in thelaw. [52] On October 7, 2014, in R. v. Chambers 2014 YKCA 13 the Yukon Court of Appeal released its decision on an appeal on thesame issues that were confronted in Bittern. The Court of Appeal overturned the trial decision which had found Charter breaches ofsections 7 and 15. In Bittern, the Court relied in part on the trial decision in Chambers which has now been overturned.

The Crown hasappealed the decision in Bittern. Leave to appeal to the Supreme Court of Canada has also been filed in Chambers. Leave to appeal tothe Supreme Court of Canada has been filed in R. v. Safarzadeh-Markhali, 2014 ONCA 627, a decision of the Ontario Court of Appealwhich held that the portion of section 719(3.1) which deals with removal of enhanced credit for those who have been denied bail basedon “previous conviction” is contrary to

section 7 and cannot be saved by

section 1. [53] After Bittern was argued, the Supreme Court of Canada released its decision in R. v. Anderson 2014 SCC 41. This decision isnot considered in Bittern. In Anderson, Moldaver J. concluded that it was not principle of fundamental justice that consideration of theoffender’s Aboriginal status was a constitutional duty under

section 7. Arguably, this reasoning is at odds with some of the conclusionsthe court made in Bittern. These arguments will be explored in greater detail later. [54] Clearly these issues continue to be contentious and litigated. Mr. Lafreniere, on behalf of the Crown, submitted that the state offlux that has arisen as a result of the divided courts on these issues has made it impossible to plea bargain. I recognize the practicalimpact for offenders like Ms. McKenzie-Sinclair of the divided courts on the issue of credit for pre-sentence custody is problematic anddifficult. The real impact for Ms.

McKenzie-Sinclair is that she may be required to serve more days in custody while these issues arelitigated again. I will return to consider this impact at the conclusion of my decision. [55] Despite the need for consistency and predictability, the law continues to evolve and develop. The decision of the Yukon Courtof Appeal in Chambers has impacted the validity of the Bittern decision since that appellate court came to the opposite conclusion. Therelease of the Anderson decision by the Supreme Court of Canada also calls into question the conclusions reached in Bittern.

It is forthose reasons that I have concluded that I need to re-consider the arguments made by both Ms. McKenzie-Sinclair and the Crown in thiscase. The Impugned Provision [56] Prior to the enactment of the Truth in Sentencing Act, which came into force on February 22, 2010, the accused points out thatcredit for pre-trial custody was routinely awarded at the rate of two for one, R. v. Wust 2000 SCC 18 , [2000] 1 S.C.R. 455; R. v.Stonefish 2012 MBCA 49. Section 719(3.1).

As a result of this enactment, section 719(3.1) was amended to limit credit for pre-sentence custody to one for one (1:1), unless circumstances justified it, then a maximum credit of one and a half days for every day(1.5:1) of pre-sentence custody could be granted.

Two groups were specifically excluded from consideration of enhanced credit: 1.) a person denied bail based on a previous conviction as endorsed on the record pursuant to section 515(9.1); and 2.) those who were alleged to be re-involved while on release, had their release cancelled (revoked) pursuant to sections 524(4) or (8) andwere detained as a result. [57] Ms. McKenzie-Sinclair has had her previous release revoked by operation of section 524(8). She has elected not to apply forbail, or in the words of section 524(8), has elected not to show cause why her detention is not justified.

There is no issue that she wasdetained pursuant to section 524(8). The reading of sections 719(3) and (3.1) prohibits a court from enhancing her credit for pre-sentence custody above 1:1. The operation of sections 719(3) and (3.1) together with 524(8) is what will be called the impugnedprovision in this case. [58] On April 11, 2014, the Supreme Court of Canada released R. v. Summers 2014 SCC 26. The Supreme Court concluded that“circumstances” that would justify enhanced credit included the loss of earned remission and parole and these factors would apply inalmost every case.

The result of this decision is that most offenders will be entitled to consideration of enhanced credit at a rate of 1.5:1. It is the difference between those offenders who would be entitled to enhanced credit and offenders like Ms. McKenzie-Sinclair who arespecifically excluded from such consideration that leads to her Charter arguments.

Section 7 or

Section 12? [59] Ms. McKenzie-Sinclair argues that the impugned provision violates her

section 7 Charter rights because fundamental principlesof justice are compromised. She argues the impugned provisions is overbroad, grossly disproportionate and offends principles ofproportionality and parity in sentencing. [60] The Crown argues that this claim should properly be addressed under

section 12 as it is really a complaint about the sentencebeing too long. The Crown points to Blencoe where the Supreme Court warned that we “must avoid collapsing the contents of theCharter and perhaps of Canadian law into a flexible and complex provision like s. 7.” Blencoe v. British Columbia (Human RightsCommission) 2000 SCC 44 at para. 188, per LeBel J. dissenting in part. [61] In R. v. Malmo-Levine, 2003 SCC 74, the Supreme Court held that proportionality of sentence is more properly consideredunder

section 12 than under

section 7: Is there then a principle of fundamental justice embedded in s. 7 that would give rise to a constitutional remedy against a punishment thatdoes not infringe s. 12? We do not think so. To find that gross and excessive disproportionality of punishment is required under s. 12

but a lesser degree of proportionality suffices under s. 7 would render incoherent the scheme of interconnected “legal rights” set out in ss.7 to 14 of the Charter by attributing contradictory standards to ss. 12 and 7 in relation to the same subject matter. Such a result in ourview, would be unacceptable. (at para. 160) [62] Similarly, in R. v.

Nur 2013 ONCA 677, Doherty J.A. relied on Malmo-Levine to conclude: A claim that a statutorily-imposed sentence is so harsh as to constitute an infringement on liberty that is inconsistent with the principlesof fundamental justice falls to be determined exclusively under the s. 12 prohibition against cruel and unusual punishment. (at para. 63) [63] Ms. McKenzie-Sinclair responds that her position is more nuanced and is not just a complaint about punishment or the endresult. She relies on the logic of the Ontario Court of Appeal in R. v.

Safarzadeh-Markhali in that the fundamental principle ofproportionality that is part of

section 7 can be used to measure the constitutionality of the sentencing process and

section 12 and its test ofgross disproportionality would apply to the result of the sentencing decision (at para. 82). Ms. McKenzie-Sinclair asks that I apply thesame logic to the provision which prevents consideration for enhanced credit for offenders like her, who re-offended while on bail andwere detained as a result. It is the removal of the discretion of the sentencing judge based on an irrelevant bail decision which is arguedto offend the fundamental principle of proportionality in sentencing process.

It is argued that if a judge cannot consider whether anoffender is entitled to enhanced credit it will lead to disproportionate sentences. [64] The Crown concedes that the Supreme Court of Canada has on two occasions noted that proportionality in sentencing is afundamental principle of justice. In Ipeelee, Lebel J., starting at paragraph 34, under the heading, “The Principles of Sentencing”conducted a review of the principles that underlie all sentencing decisions. After noting the constitutional dimension of proportionalityin

section 12, he says, “In a similar vein, proportionality in sentencing could aptly be described as a principle of fundamental justiceunder s. 7.” (at para. 36) The Crown argues this is an obiter comment and that Ipeelee is not a constitutional decision. [65] But in R. v. Anderson 2014 SCC 14 at paragraph 21, Moldaver J. repeats Lebel’s J.’s statement that proportionality is afundamental principle of justice. [66] The Crown finds further support for her position in Chambers where that Court rejected the submission that sentences can nowbe challenged on the basis that they are merely disproportionate.

Bauman C.J. in Chambers relied on Malmo-Levine (already quotedabove) and the fact that the Supreme Court has consistently held that the test in challenging a sentence is one of gross disproportionalityand not simply disproportionality (at para. 112). [67] The Crown argues that to apply a test of proportionality to the sentencing process but a test of gross disproportionality to theresult is difficult to apply. The Crown further argues that the Supreme Court of Canada has yet to provide a thoughtful and detaileddiscussion on this matter.

She cautions that to note proportionality as a fundamental principle of justice constitutionalizes the entiresentencing process and expands the scope of judicial review. The Crown argues that there is no need for that because proportionalityand its application to sentences has already been codified in

section 718.1 of the Criminal Code. [68] I recognize the ambiguity and lack of clarity from the Supreme Court pointed out by Crown Counsel. There is significantoverlap between proportionality in a sentencing process and other principles of fundamental justice such as the prohibitions againstoverbreadth or arbitrariness. [69] In R. v.

D.B., 2008 SCC 25 , [2008] 2 S.C.R. 3. at para. 46, Abella J. set out the test to apply in order to identify aprinciple of fundamental justice: (1) it must be a legal principle, (2) it must enjoy consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate, and (3) be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or securityof the person. See also Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 , [2004] 1 S.C.R.76, at para. 8.

The principle of proportionality in sentencing easily meets the test set out by the Supreme Court. [70] Given the state of the authorities at this time, I am prepared to accept Ms. McKenzie-Sinclair’s submission that the reasoning inSafarzadeh-Markhali expanded the protection and scope of the protection that is now available to be argued under

section 7. But sincethe Court in that case was considering the sub-set of offenders who are not eligible to apply for enhanced credit based on having theirbail denied due to “a previous conviction” and in Ms. McKenzie-Sinclair’s case she has been detained because she was re-involved withan indictable offence while on release, the constitutionality of the provision at issue in the case must be considered using this expandednotion of what is protected by

section 7 of the Charter.

Section 7 [71] The

section 7 analysis proceeds on the basis of two questions: 1.) Does the impugned provision or law result in a real or imminent deprivation of liberty, or security of the person, or acombination thereof? 2.) If so, does the deprivation accord with the fundamental principles of justice?

Canada (Attorney General) v. Bedford, 2013 SCC 72 at paras. 58 and 93 [72] Clearly the impugned provision affects Ms. McKenzie-Sinclair’s liberty interests because it causes her to spend more time incustody than if she was given the benefit of enhanced credit. [73] Ms. McKenzie-Sinclair argues that her liberty interests have been contravened and this was not in accordance with threeprinciples of fundamental justice: 1.) proportionality in the sentencing process; 2.) overbreadth; 3.) gross disproportionality in the effectsof the provision.

Proportionality in Sentencing Process as a Fundamental Principle of Justice [74] The Ontario Court of Appeal in Safarzadeh-Markhali, described the principle of proportionality in the context of

section 7 asfollows: [85] However, the principle of proportionality prevents Parliament from making sentencing contingent on factors unrelated to thedetermination of a fit sentence.

In this sense, the principle of proportionality is closely associated with the established principle that alaw that violates life, liberty or security of the person cannot be arbitrary. [86] The principle of proportionality in sentencing is therefore distinct from the principle that the means used to achieve a legislativegoal must be proportionate to the effects. [75] In Safarzadeh-Markhali, the Court found disproportionality when it concluded that three “identical” offenders who committedthe same offence and had the same criminal record would serve different lengths of incarceration given their bail status (at paras. 92-95).

One of the three hypothetical offenders was released on bail, two were detained and one of those two had a notation made that thedetention was based on a previous conviction under section 515(9.1). The Ontario Court of Appeal found that the offender who is given1:1 credit could potentially serve one year more than the offender who was released on bail. [76] The Court concluded that: s. 719(3.1) is a structural impediment to the determination of a proportionate sentence and therefore to a just sentence.

It skews thesentencing process, by making the outcome of the bail process a determinant of the length of the custodial portion of the sentence. Butthe bail process, and the considerations that go into granting or denying bail, are markedly different from the sentencing process. (atpara. 96) [77] In R. v. Kovich, 2013 MBPC 68 (currently also under appeal and set to be heard in March) my colleague, Harvie J. consideredthe constitutionality of sections 515(9.1) and 719(3.1). Harvie J. also highlighted the difference in bail and sentencing hearings. Amongst the reasons Harvie J. found the provisions contrary to

section 7 was the wording of the

section did not just capture a “narrowsub-set of offenders who have accumulated a criminal record that is sufficiently lengthy, related and/or serious that it forms the primarybasis for their detention in custody.” (at para. 44) Section 515(9.1) uses the word “previous conviction” only. [78] Harvie J. in Kovich pointed out that the

section did not distinguish between detention on the primary, secondary or tertiarygrounds (at para. 45). [79] The Ontario Court of Appeal in Safarzadeh-Markhali was clear that the constitutionality of the interplay of sections 524(4) or524(8) and 719(3.1) was not before them and it was not appropriate to make any declaration as to their validity (at para. 124). The twosubsets of offenders targeted by section 719(3.1) attract different considerations because of the wording of the provisions and the factthat they are at different stages of the bail process. Offenders like Ms.

McKenzie-Sinclair have already been granted release onconditions, when they violate those conditions or commit another offence. While revocation is mandatory if the Crown establishesmisconduct on a balance of probabilities (R. v. Rhodes 2013MBPQ 248 at paras. 38, 39 and 40; R. v. Fisher 2013 MBQB 40 at para. 30),Ms. McKenzie-Sinclair and offenders like her are still allowed to show cause once again why they ought to be released. [80] Parliament is entitled to make policy choices regarding the sentencing process which limit or remove the exercise of judicialdiscretion.

This has been recognized in numerous cases. [81] Doherty J. described it as follows in Nur at paragraph 66: Sentencing policy is first and foremost Parliament’s responsibility. A mandatory minimum is a “forceful expression of governmentpolicy in the area of criminal law”: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. at para. 45; Ferguson, at para. 54; and R. v. Gill,2012 ONCA 607 (Ont. C.A.), at para. 45.

Simply because mandatory minimums restrict judicial discretion, long the centerpiece of thesentencing process in Canada, does not mean that they offend the constitutional norm in s. 12. [82] And at paragraph 71:

Section 12 is not intended to constitutionalize any particular penological policy or theory, or to prohibit legislation that the court may seeas unreasonable or falling short of a best practices standard. Properly restrained judicial constitutional review accepts the primary law-making responsibility of legislatures by acknowledging the wide ambit of legislative choices available to elected officials. [83] Further and similarly, McLachlin J. in R. v.

Mills, (SCC), [1999] 3 SCR 668 in reviewing the processParliament had enacted in relation to third party records, which differed from the procedure the Supreme Court had envisaged inO’Connor, described the relationship between the Courts and the Legislature: A posture of respect towards Parliament was endorsed by this Court in Slaight Communications, supra, at p. 1078, where we held that if

legislation is amenable to two

interpretations, a court should choose the

interpretation that upholds the legislation as constitutional. Thuscourts must presume that Parliament intended to enact constitutional legislation and strive, where possible, to give effect to thisintention… While it is the role of the courts to specify such [constitutional] standards, there may be a range of permissible regimes that can meetthese standards.

It goes without saying that this range is not confined to the specific rule adopted by the Court pursuant to itscompetence in the common law. (at paras. 56 and 59.) [84] The Court must approach the proportionality assessment in this case with a measure of deference to Parliament’s policy choicein this case.

And yet the Court’s role is to determine whether the provision meets constitutional standards. [85] In this case, Parliament has chosen to remove the possibility of enhanced credit from judicial discretion for those offenders whobreach conditions of their release or commit further indictable offences while on release. In doing so, Parliament has codified whatcourts recognized even before this provision came into force. [86] In R. v.

Vermette, 2001 MBCA 64, 2001 CarswellMan 213 at paragraph 66 the Manitoba Court of Appeal noted in the case ofthose offenders who repeatedly breached conditions of release or were seen to pose a danger to society, courts either departed from the2:1 ratio that was routinely allowed at that time or denied any credit at all for time in custody. [87] More recently, in R. v. Stonefish, 2012 MBCA 49 at paragraph 45, the Manitoba Court of Appeal again referred tocircumstances where denying enhanced credit might be justified and these included delay by the offender and a history of breachingcourt orders. See also R. v.

Johnson, 2011 CarswellOnt 1136 (O.C.J.) at paragraph 39. [88] In Summers, Karakatsanis J. in reviewing the regime in place prior to the sentencing amendments, noted that “when extendedpre-sentence detention could be attributed to bad conduct on the part of the accused (such as breaching bail conditions), that militatedagainst enhanced credit (Rezaie [ (ON CA), 31 O.R. (3d) 713; (ON CA)]).” (at para. 31). [89] So is the removal of discretion which results in a mandated maximum 1:1 credit, a result that appellate courts had recognized inthe past as a proper exercise of judicial discretion, sufficient to create a disproportionate sentencing process? [90] In the case of those offenders who have re-offended while on bail, the operation of sections 524(4) and (8) and 719(3.1) dooperate more precisely than the provision at issue in Kovich and Safarzadeh-Markhali.

It is not all offenders who re-offend or breachrelease conditions who are mandated to receive only 1:1 credit. It is only those whose release is revoked and consent to their remand andthose who are subsequently not able to show cause why they should again be released and are then denied bail. That is, those who aredetained because of their re-involvement. [91] It is important to emphasize that the impugned provision is ameliorated by the fact that an offender can still show cause whythey should be released. The provision will not apply to those who are able to secure their release.

These are likely to be offenderswhose re-involvement is unrelated to their pending offences, the new offences are minor in nature or the bail plan is otherwise such thatthe risk to the public of re-involvement can be mitigated. [92] As the Yukon Court of Appeal in Chambers concluded, unlike the hypothetical offenders considered by the Ontario Court ofAppeal in Safarzadeh-Markhali, “All ss. 524(4) and (8) offenders are treated similarly.” (at para. 134) [93] Ms.

McKenzie-Sinclair argues, based on the authority of the Ontario Court of Appeal, the fundamental principle ofproportionality in sentencing is offended because Ms. McKenzie-Sinclair’s inability to access enhanced credit is dependent on a baildecision which is unrelated to the determination of a fit sentence. But as noted in the authorities prior to the amendments, it was alwayswithin the realm of options to deny enhanced credit for offenders who breach their release conditions and/or commit further offences.

Parliament has chosen to remove the judicial discretion for pre-sentence custody credit for these repeat offenders. [94] The Ontario Court of Appeal recognized in Safarzadeh-Markhali that it is an appropriate legislative purpose to increase thecustodial terms of repeat offenders (at para. 101). This is what this provision does. While I can understand and sympathize with theposition that this is harsh, this does not necessarily lead to a disproportionate sentencing process.

I agree with Chambers thatParliament’s choice to treat these offenders differently than offenders who have bail denied for reasons other than their conduct while onrelease, is a policy choice that cannot be overturned as disproportionate, see Chambers at paras. 138 and 139. Overbreadth [95] In R. v. Heywood (SCC), [1994] 3 SCR 761, the Supreme Court of Canada described the overbreadth analysisthis way: Overbreadth analysis looks at the means chosen by the state in relation to its purpose.

In considering whether a legislative provision isoverbroad, a court must ask the question: are those means necessary to achieve the State objective? If the State, in pursuing a legitimateobjective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will beviolated because the individual’s rights will have been limited for no reason.

The effect of the overbreadth is that in some applicationsthe law is arbitrary or disproportionate. (at pages 792-793) [96] The Supreme Court went on to describe that deference is owed to the means chosen by the legislature: While the courts have a constitutional duty to ensure that legislation conforms with the Charter, legislatures must have the power to

make policy choices. A court should not interfere with legislation merely because a judge might have chosen a different means of accomplishing the objective if he or she had been the legislator. ( Heywood at page 793) [97] More recently, in Bedford , the Supreme Court of Canada described the concept as follows: Moving forward, however, it may be helpful to think of overbreadth as a distinct principle of fundamental justice related to arbitrariness, in that the question for both is whether there is no connection between the effects of a law and its objective.

Overbreadth simply allows the court to recognize that the lack of connection arises in a law that goes too far by sweeping conduct into its ambit that bears no relation to its objective. (para. 117) [98] The overbreadth analysis starts by looking at what the Parliamentary objectives were underlying the legislation.

I draw the following objectives from Summers and Chambers (at para. 41 ): • Parliament wanted to restrict and cap the amount of credit for pre-sentence custody at 1.5 ( Summers at para. 52 ); • Parliament wanted to make the process more transparent and easily understood by the public – so that the public would know what the fit sentence was, how much credit had been given and why ( Summers at para. 4 and 53 ); • Parliament did not restrict the “circumstances” that can be considered in order to be granted enhanced credit.

Parliament did not exclude considerations of quantitative and qualitative effects of presentence custody from the “circumstances” ( Summers paras. 54, 57 and 58 ); • Parliament wanted to remove any incentive to drag out time in pre-sentence custody ( Summers at para. 4 ); • Parliament intended to withhold enhanced credit from certain groups of offenders including those who breached their bail conditions or committed an indictable offence while on bail ( Summers at para. 39, Chambers at para. 44). [99] The objective or purpose was elaborated as follows by the Minister of Justice and Attorney General of Canada during second reading of the Bill in the House of Commons (House of Commons Debates, 40 th Parl., 2 nd Sess., No. 41 (20 April 2009) at 1205 (Hon.

Rob Nicholson): The practice of awarding generous credit erodes public confidence in the integrity of the justice system. It also undermines the commitment of the government to enhance the safety and security of Canadians by keeping violent or repeat offenders in custody for longer periods…. Not only does the current practice deprive offenders of the prison programs that might help them, but it also fails to punish them adequately for the deeds that led to their convictions in the first place.

This is especially the case of those offenders who have been denied bail and sent to a remand centre because of their past criminal records or because they have violated their bail conditions. (as quoted in Chambers at paragraph 105 ) [100] The Minister of Justice explained further to the Standing Committee on Justice and Human Rights: Where accused, however, are remanded for having violated bail conditions or because of their criminal record, the credit will be limited to one day for every day spent in pre-sentence custody.

As a result of this initiative, a greater number of offenders would now serve a federal sentence of two or more years, and there will be an increased number of federal offenders spending time in federal custody. This time the federal system will present the opportunity for longer-term programming that may have a positive effect on the offender. We can’t lose sight of that, getting that individual the kind of help they need. Canada Parliament. House of Commons Standing Committee on Justice and Human Rights.

Minutes of Proceedings and Evidence, 40 th Parliament, 2 nd Session, Number 020 (May 6, 2009) p. 11-12. [101] Ms. McKenzie-Sinclair argues, the very removal of discretion for enhanced credit from offenders who would otherwise deserve it, demonstrates that the provision is overbroad (see her brief at para. 28). [102] I agree with the conclusion in Chambers (at para. 96-105 ) that the targeting of offenders whose own misconduct on bail disentitles them to enhanced credit is not an improper objective for Parliament.

It is within a permissible range of choices that had previously been recognized by the courts. [103] I agree with Chambers that there is a rational connection between the provision which eliminates enhanced credit (its effect) and its purpose – to withhold enhanced credit from those who breach their bail conditions or commit another indictable offence. It also provides a disincentive for offenders to serve their sentences in remand facilities which may have more limited programming. [104] I conclude that the purpose of the provision as outlined is rationally connected to its effect and therefore is not overbroad.

Gross Disproportionality [105] The Supreme Court of Canada’s most recent consideration of

section 7 principles of gross proportionality was in Bedford at paragraph 120 : Gross disproportionality asks a different question from arbitrariness and overbreadth. It targets the second fundamental evil: the law’s effects on life, liberty or security of the person are so grossly disproportionate to its purposes that they cannot rationally be supported. The rule against gross disproportionality only applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure. This idea is captured by the hypothetical of a law with the purpose of keeping the streets clean that

imposes a sentence of life imprisonment for spitting on the sidewalk. The connection between the draconian impact of the law and itsobject must be entirely outside the norms accepted in our free and democratic society. [106] Ms.

McKenzie-Sinclair argues: “the fact that the absolute bar of applying for enhanced credit would result in many additionalmonths in custody…despite her seeming potential qualification for remission and her Aboriginal background, leads to a grosslydisproportionate sentence, and offends the basic sentencing principles of parity and proportionality.” Her arguments are essentially thatshe should not be denied enhanced credit when she would have otherwise qualified for it.

Secondly, the mandatory denial of enhancedcredit means that the law has a grossly disproportionate impact on her as an Aboriginal offender as that cannot be taken into account inassessing credit for pre-sentence custody. [107] In Ms. McKenzie-Sinclair’s case, giving her 1:1 credit will mean that she will serve an additional 143 days or almost 5 (4.61 to bemore exact) months in jail. It is this effect of the impugned provision which must be looked at in the gross disproportionality analysis. [108] The cases that elaborate on the meaning of gross disproportionality in the

section 12 context apply with equal measure to the testto be applied in this case. [109] LaForest J. in R. v.

Lyons, (SCC), [1987] 2 SCR 309 said: The word “grossly”, it seems to me reflects this Court’s concern not to hold Parliament to a standard so exacting, at least in the context ofs. 12, as to require punishments to be perfectly suited to accommodate the moral nuances of every crime and every offender. (at para. 82) [110] Gross disproportionality has been described as a sentence that is “so excessive as to outrage standards of decency” anddisproportionate to the extent that Canadians “would find the punishment abhorrent or intolerable” R. v.

Wiles, [2005] 3 S.C.R. 895,2005 SCC 84 (S.C.C.) at para. 4 citing Smith at p. 1072 and Morrisey at para. 26”: R. v. Ferguson, 2008 SCC 6, 2008 Carswell Alta 228at para. 14. [111] In R. v. Nur, the Ontario Court of Appeal considered the mandatory minimum sentence of three years that attached to theindictable proceeding of possession of a loaded restricted or prohibited weapon, contrary to

section 95 of the Criminal Code. The trialjudge, Code J. identified two and a half years to three years as the appropriate sentencing range for the offence in the circumstancesbefore him. He would have imposed a sentence of two and a half years given the offender’s youth, lack of criminal record, prospects forrehabilitation and family support. He concluded that three years might be harsh or even excessive but not grossly disproportionate. (R.v.

Nur, 2011 ONSC 4874 , 2011 Carswell Ont 8821, paras. 71, 87-88). [112] This conclusion was agreed with on appeal by Doherty J.A. who found that since a three year sentence was in the sentencingrange, it could not be described as grossly disproportionate. (Nur at para. 109) [113] It has always been within the realm of appropriate discretion to give only 1:1 credit, as noted above. As noted, in Stonefish, anappropriate exercise of discretion could result, prior to the amendments, to 2:1 credit, 1:1 credit or no credit at all.

As in Nur, it waswithin the range of options, so how can legislation which mandates credit of only one day for every day served be grosslydisproportionate?

This is particularly so when the removal of enhanced credit is linked to the offenders bad conduct while on bail. [114] It is hard to accept that crediting an offender on a 1:1 basis, assuming it is a fit sentence, could result in a grossly disproportionatesentence that would be “abhorrent or intolerable.” It must be remembered that the maximum 1:1 credit applies only to the pre-sentencecustody and earned remission will still be possible on any portion of the sentence going forward from the sentencing date. [115] The credit on a 1:1 basis does not change the length of sentence to one that is outside of the sentencing range.

This can beillustrated by the facts in this case. As identified above, the Manitoba Court of Appeal has said that residential break and enters shouldattract a sentence in the range of two years. However, depending on the circumstances of the offender the appropriate range of sentencecan include a non-incarceratory sentence up to two or more years incarceration. While I concede that five additional months in custody isa significant period of time, it is not such a lengthy period of time that it shocks the conscience of the community.

The time served stillfalls within the appropriate range of sentence for a residential break and enter.

The inability to allow enhanced credit does not lead to agrossly disproportionate sentence in this case. [116] As the Court of Appeal concluded in Chambers, “the effective imposition of a longer sentence is based on the wrongfulness ofthis subset of offenders’ conduct while on judicial interim release.” (at para. 114) Gross Disproportionality and the Reasonable Hypothetical [117] In Nur, the Ontario Court of Appeal did find that the mandatory three year minimum sentence did give rise to grosslydisproportionate sentences based on a reasonable hypothetical. [118] Ms.

McKenzie-Sinclair posits the following “reasonable hypothetical” to demonstrate gross disproportionality in the impugnedprovision: One can easily postulate a person who is accused of a breach of a bail, has their judicial interim release revoked, and is convicted on thecharge on which they were initially released. By operation of the impugned provision, the offender would be limited to 1:1 credit for anypre-sentence custody. However, the offender may then be acquitted of the very breach that brought them back into custody, that resultedin the revocation, and that resulted in the denial of enhanced credit.

The offender who is wrongfully charged with a breach is treatedmore harshly than an offender who is never charged. (Brief of the Accused (Applicant) at para. 45.) [119] The Crown responds there is no reasonable hypothetical that would result in such a long period of pre-sentence custody thatdenying enhanced credit would create a grossly disproportionate sentence. The Crown points out that there are other legal mechanismsto protect against such a result such as habeus corpus, bail review, the right to a trial within a reasonable period of time and the right toreasonable bail which would prevent such a result.

[120] I agree with the Crown that there are numerous legal protections that would prevent a grossly disproportionate sentence in the reasonable hypothetical posited by Ms. McKenzie-Sinclair. In addition to those pointed out by the Crown, a judge at a bail hearing is able to consider the strength of the Crown’s case and this too would reduce the opportunity for such a result. The hypothetical posited by Ms. McKenzie-Sinclair does not recognize that a material change in circumstances gives her an opportunity for a bail review.

If this hypothetical offender were to be released, they are no longer “detained” pursuant to section 524(8) and the restriction on enhanced credit would not follow. [121] Defence counsel posed other similar hypotheticals in oral submissions which were different permutations of the argument that a charge that is withdrawn or stayed would then cause the grossly disproportionate impact of 1:1 credit. [122] In R. v. Wilson 2008 ONCA 510 and R. v. MacLeod , 2013 MBQB 242 the courts considered whether time in custody on one set of offences, which is later stayed or withdrawn, can be applied to another set of charges.

Generally the answer is no, but the cases did review some circumstances where a court allowed credit for time served on one offence to another offence. In this context, the words of Rosenberg J. in Wilson at paragraph 44 are apposite: No doubt there are flaws in our justice system. Innocent people are held in custody, and innocent people are found guilty and sentenced to terms of imprisonment.

To avoid this severe unfairness, bail is granted as liberally as possible consistent with public safety, cases of in-custody accused come on for trial as soon as possible and safeguards are in place to avoid wrongful convictions.

As well, in some cases, people who have been wrongfully convicted and spent time in jail receive monetary compensation from the government. [123] In my view, the fact that the offence on which an offender was originally released, which may later be stayed or result in acquittal, does not necessarily lead to the conclusion that the impugned provision is grossly disproportionate because there are other avenues to address that eventuality, including a bail review and reconsideration of whether the person is still being detained pursuant to section 524(8). I do not find that the reasonable hypothetical posed by Ms.

McKenzie-Sinclair demonstrates gross disproportionality. Gross Disproportionality and the Offender’s Aboriginal Status [124] Let me turn then to consider the other way in which Ms. McKenzie-Sinclair argues that the impugned provision is grossly disproportionate which is the impact on her as an Aboriginal offender. [125] Ms. McKenzie-Sinclair relies on the reasoning in Kovich and the conclusion there that the provision which mandates one for one credit for those offenders who have been detained based on their previous conviction as endorsed in the record pursuant to section 515(9.1) is grossly disproportionate.

But the provision at issue in Kovich requires a different constitutional analysis. I note that there are numerous reasons for the finding of gross disproportionality in Kovich including the wording of the provision at issue and the difference between similarly situated offenders which does not arise in assessing this provision. Harvie J. found the inability to consider an offender’s aboriginal background “troubling”. However, it does not appear to have been the foundation for the finding of gross disproportionality. [126] Ms. McKenzie-Sinclair also relies on R. v.

Bittern where the court relied in part on the fact that a sentencing court would be unable to consider an offender’s Aboriginal status as the discretion was removed from the impugned provision, contrary to the principles set out in Gladue and Ipeelee . [127] After Bittern was argued, the Supreme Court of Canada released R. v. Anderson 2014 SCC 41 . Mr. Anderson was an Aboriginal man who had been convicted of impaired driving. The Crown served him with notice of its intention to seek greater punishment. This notice would require the sentencing court to impose a mandatory minimum period of incarceration. Mr.

Anderson argued that it was a breach of

section 7 for the Crown not to consider his Aboriginal status before serving him with the notice to seek greater punishment. The Supreme Court held that it is a statutory imperative for a sentencing judge to consider Mr. Anderson’s Aboriginal status pursuant to

section 718.2(e). But this does not elevate consideration of that status to all state actors. Moldaver J. concluded that it was not principle of fundamental justice that all state actors give consideration to the Aboriginal status of the accused as a constitutional duty under

section 7. [128] I agree with the Court of Appeal in Chambers that Anderson supports the view a sentencing judge must consider a person’s Aboriginal status in considering the appropriate sentence but this does not require, as a constitutional duty, that this must be done again in determining credit for time in custody (at paras. 90 and 107). As in this case, Ms. McKenzie-Sinclair’s background as an Aboriginal woman has already been considered in determining the length of the sentence and reducing the length of the appropriate sentence. [129] I will return to the consideration of her Aboriginal status in considering her arguments pursuant to

section 15 Charter arguments. [130] The inability to consider her Aboriginal background in crediting her pre-sentence custody based on the impugned provision does not lead to a grossly disproportionate sentence. [131] Ms. McKenzie-Sinclair’s

section 7 challenge must fail because the operation of the impugned provision does not offend fundamental principles of justice, specifically the principle of proportionality in a sentencing process, overbreadth and gross disproportionality.

Section 15 [132] In Droit de la famille – 091768 , 2013 SCC 5 , 2013 CarswellQue 114 at para. 324 , a recent decision of the Supreme Court of Canada confirmed the test for establishing a

section 15 violation coming from their decisions in Kapp and Withler : 1.) Does the law create a distinction based on an enumerated or analogous ground? 2.) Does the distinction create a disadvantage by perpetuating prejudice of false stereotyping?

[133] Ms. McKenzie-Sinclair argues that the impugned provision offends

section 15 of the Charter because it discriminates against heron the basis of race. She argues that she “may receive a lengthier sentence because of factors based on race.” (Brief of the (Accused)Applicant at para. 47.) [134] She points to the Office of the Auditor General Manitoba’s report “Managing the Province’s Adult Offenders” (March 2014) atpage 242 which reported: “At the time of our audit, Aboriginals were about 15% of Manitoba’s total population.

But they accounted forabout 70% of the Province’s incarcerated adult offenders…” And later, in the report they noted adults in Manitoba in remand custodyaccounted for 64% of total custody population in 2010/11 (at page 251). This was the highest in the country, although Ontario was aclose second at 61% and three other provinces (British Columbia, Alberta and Nova Scotia) were also over 50%. [135] She says that these numbers show that the effect of the law will be discriminatory on her as an Aboriginal offender.

Because ofher disadvantaged background she is more likely to be denied bail, thus is subject to lengthier sentences of imprisonment which willcontinue to contribute to the over-representation of Aboriginal people in custody. [136] The Crown points out that the impugned provision is neutral on its face so the focus must be on whether Ms. McKenzie-Sinclairhas established adverse effect discrimination pursuant to the section 15(1) authorities. She points out the section 15(1) case law hasgenerally developed outside of the criminal law context.

However, the Crown cites two decisions, R. v B. (T.M) 2013 CarswellOnt10174 (Ont. Sup. Ct. of Justice) and R. v. Nur, both the trial and appeal decisions where similar arguments were made that a minimumsentence created an adverse impact on Aboriginal or black people, contrary to the equality guarantees protected in

section 15. Thesearguments were not accepted in those cases. [137] On the first part of the test, does the law create a distinction based on an enumerated or analogous ground, so in this case, doesthe law create a distinction based on race, Code J., sitting in appeal of the trial judge, had the following comments in B. (T.M): …Mr. Ford and Mr.

Rudin, counsel for B. and for the Intervenor, conceded that if their argument is correct upon this point, then it willmean that every mandatory minimum sentence in the Criminal Code must be held to contravene the first stage of the Kapp/Whithlerframework for s. 15(1) analysis.

This is because the legislative policy underlying uniform mandatory minimum sentences stressesdenunciation and never makes allowances for those minor cases or for exceptional cases where the legislated minimum does not fit theindividualized circumstances of a particular offence in the most mitigated circumstances. (at para. 43) Despite these reservations, Code J. accepted, for arguments sake, that the first step of the

section 15 analysis had been met as found bythe trial judge.

The Court then went on to consider step two of the analysis and concluded it had not been demonstrated that themandatory minimum of 14 days for sexual interference on a child perpetuated disadvantage, prejudice or stereotyping or otherwisebreached the principles of substantive equality. [138] At the trial in Nur the analysis of Code J. was as follows: The fundamental flaw in the s. 15 argument is that the Applicant and the Intervener have not established that the discriminatory effect ofover-representation and over-incarceration of blacks, amongst those charged with s. 95 offences, is caused by the law itself.

It is notdifficult to establish that poverty, unemployment, poor housing and weak family structures contribute to the proliferation of gang cultureand gun crime. It is also not difficult to establish that these phenomena will attract heavy police attention and will lead to the laying oflarge numbers of s. 95 charges. Finally, it is not difficult to establish that anti-black discrimination undoubtedly contributes to many ofthese underlying societal causes. However, none of this establishes that s. 95 itself violates s. 15 of the Charter. As Iacobucci J. put it inSymes v.

Canada, (SCC), [1993] 4 S.C.R. 695 at para. 134, giving the judgment of seven members of the Court: If the adverse effects analysis is to be coherent, it must not assume that a statutory provision has an effect which is not proved. We musttake care to distinguish between effects which are wholly caused, or are contributed to, by an impugned provision, and those socialcircumstances which exist independently of such a provision.

The s. 15 arguments advanced by the Applicant and the Intervener could be made in relation to any provision of the Criminal Code thatresults in mandatory imprisonment, for example, the sentence for the offence of murder. If disproportionate numbers of blacks arecharged with murder because of the discriminatory impact of poverty, unemployment, poor housing and biased law enforcementdecisions, would it be appropriate to strike down the mandatory minimum penalty for murder?

Obviously not. (at paragraphs 79-80) This analysis in Nur was adopted on appeal, in its entirety by Doherty J.A. at paragraph 182. [139] In Chambers, the Yukon Court of Appeal concluded that it was a faulty premise or error in the

section 15 analysis to find thatAboriginal offenders are entitled to consideration of Gladue/Ipeelee factors in each interaction with the criminal justice system,specifically in the “narrow circumstances” of section 719(3.1) (at para. 121). Those factors must be considered in the overall sentencingprocess.

Bauman C.J. concluded: While it is likely true, as the sentencing judge here concluded, that Aboriginal persons will proportionately be affected more by theimpugned provision because of their over-representation in the target population, it is not because they are targeted as a result of adistinction based on an enumerated or analogous ground.

Virtually every provision in the Code is more likely to affect a disproportionatenumber of Aboriginal persons than other segments of the population but the Code creates distinctions on the basis of who breaks the law(or in this case, bail conditions), not on the basis of race. [140] I am persuaded by the reasons in B.(T.M), Nur, and Chambers that Ms. McKenzie-Sinclair has not demonstrated that theimpugned provision has an adverse effect on her based on enumerated or analogous grounds. All offenders who re-offend and aredetained pursuant to section 524(8) are treated the same by the provision.

While Aboriginal people may be impacted more by theoperation of the provision, this is a reflection of their social circumstances rather than the operation of section 524(8) together withsection 719(3.1). [141] I have concluded that Ms. McKenzie-Sinclair’s

section 15 equality rights were not violated by the impugned provision.

Final Sentence Calculation [142] Ms. McKenzie Sinclair has been in custody since April 10, 2014 on the charge of break and enter into a residence. This is a period of 286 days or 9 months 11 days. Since I have found section 719(3.1) constitutional, she is entitled to only one for one credit for this period of time. I have already said that a sentence of 15 months was the appropriate sentence for Ms. McKenzie-Sinclair given her background, including Gladue / Ipeelee factors and her diminished role in the offence. [143] The law is in a state of development right now.

It would ordinarily not be proper for a judge to reduce the length of a jail sentence in order to avoid a clear Parliamentary intention to set credit for an offender at one day for every day of pre-sentence custody. Yet, Ms. McKenzie-Sinclair’s decision to challenge the constitutionality of this provision is fairly made based on an earlier decision of the Manitoba Provincial Court in Bittern as well as the other authorities provided. It is not Ms. McKenzie-Sinclair’s fault or her delay that the Court was required to adjourn for 50 days in order to consider sentence and the constitutional arguments.

If I could have rendered a decision on December 2, 2014, it is likely that she would have earned 25 days remission during that period. As a result, based on the specific circumstances in this case, and the need for me to impose a fit and proportionate sentence, I am going to deduct one month from the length of the sentence. [144] This means that the go forward portion of her sentence is 20 days plus five months. This period of incarceration will be followed by one year of supervised probation.

The conditions will be the mandatory conditions as well as conditions that she report to a probation officer within seven days of her release and thereafter when required by the probation officer and in the manner directed by the probation officer, that she reside as directed by her probation officer and that she attend, participate and complete any treatment or counseling program as directed by her probation officer, that she have no contact or communication either directly or indirectly with John Roulette and Krissy Walton, and that she not attend within 100 meters of 382 Cathedral Avenue.

In my view, the period of probation is meant to provide her with another support in the community which can aid her rehabilitation and connect her with the community resources she will need in order not to re-offend. [145] Ms. McKenzie-Sinclair is to provide a bodily sample sufficient for DNA analysis within 30 days. [146] A victim surcharge of $200 is imposed, to be paid within 18 months. “Original signed by:” _________________________ KRAHN P.J.