Her Majesty the Queen, ) Deborah Carlson, Respondent ) ) ) for the Respondent, - v. –, 2014 MBPC 51

Citation: Her Majesty the Queen v. Courtney Nadine Bittern (Judgment on Motion) Citation No. 2014 MBPC 51 THE PROVINCIAL COURT OF MANITOBA IN THE MATTER OF: The Criminal Code of Canada AND IN THE MATTER OF: The Canadian Charter of Rights and Freedoms AND IN THE MATTER OF: The Constitutional Questions Act BETWEEN: Her Majesty the Queen, ) Deborah Carlson, Respondent ) ) ) for the Respondent, - and – ) ) Courtney Nadine Bittern, ) Scott Newman, (Accused/Applicant) ) ) ) for the Accused/Applicant ) ) ) Judgment on Motion delivered: September 23, 2014 Corrected Judgment: An Erratum was filed on September 26, 2014.

The text of the Erratum is appended at the end of the reasons of the initial judgment, which is reproduced here with corrections. CARLSON, P.J. Introduction [ 1 ] The accused Courtney Nadine Bittern filed a Notice of Motion challenging the constitutional validity of the exemption in s. 719(3.1) of the Criminal Code that precludes consideration by a sentencing judge of enhanced credit for time spent by an offender in pre- sentence custody (“PSC”) when that offender has had her judicial interim release revoked and is detained in custody under subsection 524(8) of the Criminal Code . [ 2 ] Ms.

Bittern does not challenge the limitation in s. 719(3) of credit for PSC at the rate of 1:1, nor the limitation in s. 719(3.1) of 1:5 to 1, “where the circumstances justify it” (“enhanced credit”). Her challenge is to the exemption in s. 719(3.1) established by the phrase “...or if the person was detained in custody under subsection 524(4) or (8)” (the “impugned exemption”). [ 3 ] Ms. Bittern says the impugned exemption breaches sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms (the “Charter ”), by precluding an offender from being eligible for enhanced credit for PSC on sentencing. Ms.

Bittern says the impugned exemption is of no force and effect, should not be applied on her sentencing, and that she is entitled to be considered for enhanced credit for her PSC. She submits the impugned exemption cannot be saved by s. 1 of the Charter . [ 4 ] Crown counsel says the impugned exemption is constitutional, being within the purview of Parliament to enact, and does not contravene s. 7 or s. 15(1) of the Charter . If there is an infringement, the Crown does not attempt to justify it pursuant to s. 1 Charter . [ 5 ] The

interpretation (but not the constitutionality) of the impugned exemption has been considered in a number of decisions by this Court, specifically as to whether an offender who has had his or her bail revoked but has not brought a further bail application and,

instead proceeded to sentencing, is or is not “detained in custody” under s. 524(8) ( R. v. Saunders, (13 December 2011); R. v. Cook, (4July 2014); R. v. Perrier (16 June 2014); R. v. Maytwayashing, (1 August, 2014); R. v. Catcheway (21 July, 2014); all of which areunreported; and R. v. McDougall, 2014 MBPC 35). Those decisions have not all interpreted the impugned exemption in the same way. Since Ms. Bittern not only had her bail revoked, but did apply for bail and was bail denied,

interpretation of the impugned exemption isnot at issue in this case. Ms. Bittern was definitely “detained in custody” under s. 524(8) as of July 3, 2013. If the impugned exemptionis constitutional, Ms. Bittern is precluded from consideration for enhanced credit for her PSC on sentencing. Background of the Proceedings [6] Ms. Bittern was arrested on February 9, 2012, and charged with robbery arising from an incident on January 26, 2012.

Shewas released on a Promise to Appear with Undertaking, on conditions that included a curfew, curfew checks and a requirement to notifythe court before moving. [7] On April 25, 2012, Ms. Bittern was arrested for a breach of her curfew check condition from February 14, 2012, and for abreach of the requirement to notify of an address change on April 25, 2012. She was remanded into custody, granted judicial interimrelease on April 27, 2012, and released on a recognizance with conditions. [8] A case management conference was held on the robbery charge on November 5, 2012.

A preliminary inquiry on the robberywas set for February 13 and 14, 2014. [9] On December 8, 2012, Ms. Bittern was arrested for a curfew breach from October 24, 2012, and remanded into custody. Shewas released with Crown consent, on a recognizance on December 11, 2012. [10] On May 28, 2013, Ms. Bittern was arrested, charged with assault and a breach of the December 11, 2012 recognizance forfailing to keep the peace and being of good behaviour (by committing the assault), and held in custody. [11] On July 3, 2013, Ms. Bittern applied for release.

Her application was denied, and her recognizance on the robbery and priorbreach charges was revoked. [12] On August 29, 2013, a one day trial was set for the assault charge, for February 27, 2014. The breach charges were adjournedto that date without plea. [13] On February 13, 2014, Ms. Bittern entered a guilty plea to the robbery. A Pre-Sentence Report (“PSR”) with a Gladuecomponent was ordered. [14] On February 27, 2014, guilty pleas were entered to the rest of the charges now before the court (the assault and three breaches –but not including the alleged breach from May 28, 2013 which was stayed by the Crown).

Counsel agreed that Ms. Bittern could besentenced on all charges at one time. [15] The sentencing of Ms. Bittern is pending. A decision is required on this motion first. [16] It is agreed that Ms. Bittern is eligible to be considered for enhanced credit for the PSC she spent prior to July 3, 2013 –specifically from April 26 to 27, 2012 (2 days), from December 8, 2012 to December 11, 2012 (4 days), from January 22, 2013 toJanuary 24, 2013 (3 days), and from May 29, 2013 to July 3, 2013 (36 days). That is a period of 45 days. [17] Ms.

Bittern also wishes to apply for enhanced credit for the time that she has spent in PSC since July 3, 2013, when her bail wasrevoked and further bail application denied. That is, to today’s date, September 23, 2014, a further 448 days. That time will continue torun until Ms. Bittern is sentenced. The impugned exemption in s. 719(3.1), if it is constitutional, specifically precludes suchconsideration. The Legislation [18] Prior to the coming into force of the Truth in Sentencing Act (SC 2009, c.29), the Criminal Code provided that “time incustody” was a factor that a sentencing judge “may” take into account.

A judicial practice developed such that enhanced credit for pre-sentence custody at the rate of two days to one (“2:1”) was routinely applied by Canadian sentencing judges exercising their discretion (R. v. Wust, 2000 SCC 18 , [2000] 1 S.C.R. 455). This practice recognized that most sentenced prisoners would be releasedbefore their warrant expiry date, and that accused persons on remand faced certain challenges that sentenced prisoners did not, such asless available programming and treatment, and overcrowded conditions. [19] On February 22, 2012 the Truth in Sentencing Act came into force.

It amended s. 719(3) and s. 515 of the Criminal Code in amanner that limited judicial discretion in crediting offenders with PSC, so that: • The court “may” take into account time spent by an offender in PSC but any credit given is limited to 1:1 (s. 719(3)); • However, “if the circumstances justify it”, PSC may be credited at a rate of a maximum of 1.5:1 (“enhanced credit”) (s.719(3.1)); • But, two groups of offenders are specifically and absolutely barred from applying for enhanced credit. Those are: o offenders who have been denied bail due to their criminal records (s. 719(3.1); and,

o offenders who have had bail revoked (either because they are alleged to have breached their bail, or because there are reasonablegrounds to believe they have committed an indictable offence while on bail), and are then bail denied (s. 524(4) and 524(8)).

This groupmay include offenders who have bail revoked and proceed to sentencing without making a further bail application - depending on theinterpretation that is given to “detained in custody” in ss. 524(4) and (8)). [20] The relevant Criminal Code provisions are as follows: s. 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 incustody 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 dayspent in custody. s. 719(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custodyunless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained incustody under subsection 524(4) or (8). s. 515(9.1) Despite subsection (9), if the justice orders that the accused be detained in custody primarily because of a previousconviction of the accused, the justice shall state that reason, in writing, in the record. s. 524(8) Where an accused described in subsection (3), other than an accused to whom paragraph (

a) of that subsection applies, is takenbefore the justice and the justice finds: (

a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear,undertaking or recognizance, or (

b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearancenotice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him he shall cancel the summons,appearance notice, promise to appear, or undertaking or recognizance and order that the accused be detained in custody unless theaccused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within themeaning of subsection 515(10). [21] Ms.

Bittern, having had her bail revoked based on allegations she committed an assault, and then being bail denied, is caught bythe impugned exemption, which is the effect of s. 719(3.1) in combination with s. 524(8). [22] The Supreme Court of Canada, in R. v. Summers, 2014 SCC 26, has interpreted the phrase “if the circumstances justify it” in s.719(3.1), and held that the loss of remission and/or early parole, alone, are circumstances which will justify the granting of enhancedcredit under s. 719(3.1).

If an offender is able to show that he or she would likely have been eligible for early release, then he or she iseligible for enhanced credit. [23] Parliament, being charged with the responsibility and authority for penal policy, is able to amend provisions under theCriminal Code that constrain judicial discretion on sentencing (R. v. Nur, 2013 ONCA 677), and that change rules the courts haveestablished at common law (R. v. Mills, (SCC), [1999] 3 SCR 668). [24] But such amendments, in order to be effective, must be constitutional. [25] Ms.

Bittern argues that the impugned exemption is not constitutional, on the basis it breaches sections 7 and 15(1) of theCharter. The nature of Ms. Bittern’s constitutional challenge: should Ms. Bittern’s challenge have been brought under s. 12 Charterinstead of s. 7 Charter? [26] The Crown says that because one of Ms. Bittern’s arguments is that the effect of the impugned exemption is grosslydisproportionate, her challenge to its constitutionality should have been made under s. 12 Charter rather than under s. 7 Charter. [27] Ms.

Bittern says that she could indeed have challenged the impugned exemption under s. 12 of the Charter, but that because herarguments are broader and go beyond the scope of a s. 12 Charter challenge, she proceeded under s. 7 Charter. [28]

Section 7 of the Charter reads: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [29]

Section 12 of the Charter reads:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [ 30 ] Ms. Bittern advances arguments under s. 7 Charter that the impugned exemption affects her liberty interest, that one or more principles of fundamental justice are engaged, and that the limitation on her liberty interest is not in accordance with one or more of those principles, including proportionality. [ 31 ] The Crown relies on the following statement made by the Supreme Court of Canada in R. v. Malmo-Levine , 2003 SCC 74 , as authority for its position that Ms.

Bittern’s challenge ought to have been brought pursuant to s. 12 rather than s. 7 Charter : Is there then a principle of fundamental justice embedded in s. 7 that would not give rise to a constitutional remedy against a punishment that does 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 our view, would be unacceptable. (para 160) [ 32 ] But Ms. Bittern’s arguments are not limited to saying that the effect of the impugned exemption is grossly disproportionate. Ms. Bittern’s arguments are broader. Ms.

Bittern argues that the impugned exemption both offends the required application of proportionality in the sentencing process as a principle of fundamental justice, and that it results in ultimate sentences that are grossly disproportionate. Her arguments go beyond challenging the punishment, or ultimate sentence, and therefore are broader in scope than those focussed on a s. 12 Charter challenge. [ 33 ] The distinction between these two different applications and standards of proportionality was specifically addressed in the recently decided case of R. v. Safarzadeh-Markhali , 2014 ONCA 627 .

Chief Justice Strathy said, about the statement in R. v . Malmo- Levine set out above, as follows at paragraph 82: I agree with Mr. Safarzadeh-Markhali that Malmo-Levine is distinguishable , because it dealt with the constitutionality of a punishment. I accept his submission that the principle of proportionality governs the sentencing process , while the standard of gross disproportionality applies to the result . An offender is entitled to a process directed at crafting a just sentence. [ 34 ] The Crown did not argue that it was prejudiced in any way by Ms.

Bittern challenging the impugned exemption under s. 7 rather than s. 12 of the Charter . Crown counsel had notice of Ms. Bittern’s s. 7 Charter arguments and responded comprehensively to them, in both written and oral submissions. [ 35 ] Accordingly, the Court is of the view that Ms. Bittern’s challenge is properly framed under s. 7 of the Charter . Does Criminal Code section 719(3.1) violate

section 7 of the Charter ? [ 36 ] In order to establish a breach of s. 7 Charter , Ms. Bittern needs to prove, on a balance of probabilities, that: 1. The impugned exemption results in a deprivation of life, liberty or security of the person; and, 2. That the deprivation accords with the principles of fundamental justice. Does the impugned exemption result in a deprivation of life, liberty or security of the person ? [ 37 ] The risk of being sent to jail engages an offender’s liberty interest ( R. v.

Malmo-Levine , supra , at para. 89 ). [ 38 ] It follows then that an offender’s liberty interest is affected by a legislative provision that effectively results in increasing the portion of his or her sentence that will be served in jail. [ 39 ] The effect of the impugned exemption will result in Ms. Bittern being liable to serve significantly more time in jail than she would if she were not subject to the exemption. If she were to receive 1.5 to 1 credit for the 448 days at issue to date, she would be credited with 672 days. By virtue of the impugned exemption, Ms.

Bittern is liable to an effective sentence of at least 224 days, or 7.4 months longer, than if the exemption is not effective. Being deprived of one’s liberty for 7.4 months is significant. [ 40 ] The Court finds that the impugned exemption interferes with Ms. Bittern’s liberty interest. Does the deprivation accord with the principles of fundamental justice ? [ 41 ] This requires determination as to whether one or more principles of fundamental justice are engaged and if so, whether the deprivation was in accordance with such principle(s). [ 42 ] A principle of fundamental justice; (

a) Must be a legal principle; (

b) There must be sufficient consensus that the principle is vital or fundamental to our societal notion of justice; and, (

c) The principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results.

( Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General , 2004 SCC 4 , at para 8 ) [ 43 ] Ms. Bittern argues the impugned exemption violates the following principles of fundamental justice: 1. The principles of proportionality and parity in sentencing; 2. The principle that a sentence cannot be grossly disproportionate to the offence; and, 3. The principle that legislation must not be overbroad. Proportionality in the Sentencing Process [ 44 ]

Section 718.1 Criminal Code specifically sets out proportionality in sentencing as a principle of fundamental justice: Fundamental Principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender . [ 45 ] The Supreme Court of Canada has specifically referred to proportionality as a principle of fundamental justice. In R. v.

Ipeelee , 2012 SCC 13 , at para 37 , LeBel, J. said: The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing – the maintenance of a just, peaceful and safe society through the imposition of just sanctions Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that sentence reflects the gravity of the offence.

This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system… Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.

In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [ 46 ] The principle of proportionality fits the requirements of a principle of fundamental justice as set out in the Canadian Foundation case, supra . [ 47 ] There is no doubt that proportionality in sentencing is a principle of fundamental justice. Judges must apply it in every sentence they craft. [ 48 ] The principle of parity is set out in s. 718.2 (

b) Criminal Code as follows: 718.2(

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 49 ] While not necessarily a principle of fundamental justice itself, parity is part of the principle of proportionality. In R. v.

Arcand, 2010 ABCA 363 at paragraph 61 , parity was described as an “indispensable element of the proportionality principle.” Does the impugned provision offend the principle of proportionality in sentencing ? [ 50 ] Consideration as to whether credit will be given to an offender for PSC, and if so, how much, is part of the sentencing process. [ 51 ] Parliament of course may legislate factors that a sentencing judge must consider in order to determine a proportionate sentence.

Parliament has done this in s. 718.2 Criminal Code , by setting out principles that are directly relevant to assessing the gravity of the offence and the degree of responsibility of the offender. These include the parity principle; the principle that a sentence will be adjusted to take into account mitigating and aggravating circumstances of the offender and of the offence; the totality principle; and the requirement for the sentencing judge to specifically consider the circumstances of aboriginal offenders. [ 52 ] But, as stated in R. v.

Safarzadeh-Markhali , supra, at para 85 , ...the principle of proportionality prevents Parliament from making sentencing contingent on factors unrelated to the determination of a fit sentence. In this sense, the principle of proportionality is closely associated with the established principle that a law that violates life, liberty or security of the person cannot be arbitrary. [ 53 ] The question is then whether the effect of the impugned exemption on Ms. Bittern’s liberty by extending the custodial part of her sentence is in accordance with the principle of proportionality. [ 54 ] Although the R. v.

Summers case, supra , addressed the

interpretation of s. 719(3.1) and not its constitutionality, Karakatsanis, J. made some important comments about the need to interpret s. 719 (3.1) in a way that is consistent with the fundamental purpose and

principles of sentencing set out in s. 718 Criminal Code. At paragraphs 60 to 61, she commented that an

interpretation of s. 719(3.1)that results in offenders who do not receive bail serving longer sentences than otherwise identical offenders who are granted bail, isincompatible with the parity principle. At paragraph 63, she stated: ...a rule that creates structural differences in sentences, based on criteria irrelevant to sentencing, is inconsistent with the principle ofparity. [55] At paragraphs 65,66 and 67 of R. v.

Summers, Karakatsanis, J. said: However, it is difficult to see how sentences can reliably be “proportionate to the gravity of the offence and the degree of responsibilityof the offender” (s. 718.1) when the length of incarceration is also a product of the offender’s ability to obtain bail, which is frequentlydependent on totally different criteria. Judicial interim release requires the judge to be confident that, amongst other things, the accused will neither flee nor reoffend while onbail.

When an accused is able to deposit money, or be released to family and friends acting as sureties (who often pledge moneythemselves), this can help provide the court with such assurance. Unfortunately, those without either a support network of family andfriends or financial means cannot provide these assurances. Consequently, as the intervener the John Howard Society submitted, thismeans that vulnerable and impoverished offenders are less able to access bail. For example, Aboriginal people are more likely to be denied bail, and make up a disproportionate share of the population in remandcustody.

A system that results in consistently longer, harsher sentences for vulnerable members of society, not based on thewrongfulness of their conduct but because of their isolation and inability to pay, can hardly be said to be assigning sentences in line withthe principles of parity and proportionality. Accounting for loss of early release eligibility through enhanced credit responds to thisconcern. [56] The effect of s. 719(3.1) is to make the result of a bail revocation and bail hearing a determinant of how long the custodialportion of an offender’s sentence will be.

But the factors relevant to a decision on revocation and bail are entirely different than thefactors relevant to a decision on sentence. [57] Section 524(8) mandates a justice to revoke an accused’s bail if the accused is charged with breaching a bail condition or ifthere are reasonable grounds to believe the accused has committed an indictable offence while on bail. So essentially as long as there is acharge of breaching a recognizance, an accused will have bail revoked. The result is that such accused, if then denied bail (and arguablyeven if no bail application is made) is caught by the impugned exemption.

Even if the breach charge that triggered the revocation isultimately not proven, or is stayed by the Crown, the accused is still caught by the impugned exemption. Likewise, when thecommission of an indictable offence is alleged while an accused is on bail, revocation is required, thereby triggering the effect of theimpugned exemption. Even if that offence is not proven or is stayed, and the offender is being sentenced for the offence(

s) for which heor she was on bail prior to revocation, the offender remains impacted by the impugned exemption and is ineligible for the enhancedcredit for PSC.

The circumstances that trigger the impugned exemption when there is revocation and then a bail denial, are not relevantconsiderations on sentencing, and as such the impugned exemption offends proportionality in sentencing [58] At a bail hearing the court must consider factors that impact whether the accused will attend court, whether he or she will re-offend while on bail, and whether he or she needs to be detained in order to maintain confidence in the administration of justice.

Denialof bail to offenders may be due to factors such as lack of a fixed address, lack of resources to fund a cash bail, and lack of financiallysecure connections in the community to act as surety, and/or to the offender’s criminal record (even if he or she is not stated to bedetained under s. 515(9.1)), just to name a few. These factors for consideration on bail, are not factors that are properly considered onsentence. [59] As stated by Chief Justice Strathy in R. v. Safarzadeh-Markhali, supra: Whether or not an offender was released on bail is entirely irrelevant to the determination of a fit sentence.

An offender denied bail isentitled to the same sentence as an equally placed offender who has been released on bail. By preventing this result, s. 719(3.1) interferes with parity, which is an essential ingredient of proportionality. (paras 97 and 98) [60] Ms. Bittern is Aboriginal. The Pre -Sentence Report and Gladue Report filed in this matter sets out how Ms. Bittern and herfamily were affected by colonialism. The Supreme Court of Canada made it clear in R. v. Ipeelee, 2012 SCC 13 , [2012] 1S.C.R. 433, that a sentencing judge must take such impact into account in assessing an appropriate sentence.

Section 718.2(

e) CriminalCode mandates that circumstances of aboriginal offenders be specifically considered in determining a fit and just sentence. Thatnecessarily includes consideration of such circumstances in assessing credit to be given for PSC. The impugned exemption does notpermit any specific consideration of circumstances of aboriginal offenders in an assessment of credit to be given for PSC.

In this way,the impugned exemption offends the proportionality required in the sentencing process. [61] So, the impugned exemption both incorporates into determination of the sentence (by eliminating the possibility of enhancedcredit based on results of a bail revocation and bail hearing) factors that are irrelevant to sentence, and excludes from considerationfactors that the Criminal Code specifically says are relevant to determination of a proportionate sentence (including parity andconsideration of aboriginal offender’s circumstances).

By interfering with the process of determining a fit sentence in accordance withthe fundamental principle of proportionality, the impugned exemption violates s. 7 Charter. Is the impact of the impugned exemption “grossly disproportionate”? [62] Ms. Bittern argues that the impugned exemption produces results that are grossly disproportionate. [63] Parliament cannot enact provisions that result in sentences that are so excessive as to be grossly disproportionate (R. v. Nur,2013 ONCA 677).

[64] The constitutional test of “gross proportionality” is a stringent one. It is stringent because it necessarily requires deference toParliament’s role in deciding how to deal with crime and punishment. [65] In R. v. Malmo – Levine, cited with approval in R. v. Johnson, 2011 ONCJ 27 at para 145: The constitutional standard of “gross disproportionality” is a stringent one. A sentence that is merely excessive is not grosslydisproportionate (Steele v. Mountain Institution, (SCC), [1990] 2 S.C.R. 1385 at 1417), nor necessarily is one that issimply “unfit “(R. v. McDonald, supra, at para 68; R. v.

Kumar (1993), (BC CA), 85 C.C.C. (3d) 417 (B.C.C.A.) at488). The test, rather is “whether the punishment prescribed is so excessive as to outrage standards of decency” (R. v. Smith, supra, at1109) or one such that “Canadians would find the punishment abhorrent or intolerable. (R. v Morrisey, supra, at 108; R. v. Ferguson,2008 SCC 6 , [2008] 1 S.C.R. 96 at para 14). [66] The test is one of “a reasonable person...properly informed about the philosophy of the legislative provisions, Charter valuesand the actual circumstances of the case” (R. v.

Hall, [2002] 3 S.C.R. at para 41). [67] There are two steps in assessing gross disproportionality, set out by the Supreme Court of Canada in R. v. Goltz, (SCC), [1991]S.C.J. No. 90. These are: 1. First, there must be an assessment of whether the sentence is grossly disproportionate in the circumstances of the individualoffender. If not, then the Court moves to the second step. 2.

Second, the Court must move beyond the circumstances of the individual offender to consider reasonable hypotheticals. [68] The fact that application of the impugned exemption may result in a sentence that would be too harsh, or “unfit”, based ongeneral sentencing principles, is not enough. The sentence must be one that “shocks the conscience of the community” or “outragesstandards of decency” (R. v. Ferguson, 2008 SCC 6). [69] First, the Court must consider the effect of the exemption in s. 719(3.1) on the specific offender in this case, Ms. Bittern.

Doesthe impugned exemption create a situation of gross disproportionality in sentence for Ms. Bittern? [70] Since Ms. Bittern had her bail revoked and was then denied bail, the net result of the impugned exemption on Ms. Bittern is thatshe is liable to spend slightly in excess of an extra 7.4 months in jail. That is a significant period of time to spend in custody. That extratime to be served in jail is not linked to any relevant consideration on sentencing. [71] Judge Harvie in R. v.

Kovich, 2013 MBPC 68, considered the impact of the exemption in s. 719(3.1) precluding enhanced creditfor PSC when an offender has had bail denied based on his or her prior criminal record. In that case the offender was liable to spend anextra nine months in custody. Judge Harvie found this potential differential created by application of the exemption to represent acircumstance of gross disproportionality, and that the exemption breached s. 7 Charter. [72] In R. v. Chambers, 2013 YKTC 77, Judge Ruddy considered the s. 719(3.1) exemption on bail revocation.

In that case, theoffender had bail revoked but had not made a further bail application. In considering the

interpretation of the exemption, Judge Ruddyfound that the exemption did not apply where there had not been a bail application made and that “detention” had not occurred so as topreclude an application for enhanced credit. In that way, Chambers is different from Ms. Bittern’s situation. But Judge Ruddy went on inher decision to consider the constitutionality of the exemption. If the exemption were upheld, Mr. Chambers was liable to four monthsin custody longer than he would be if the exemption were not upheld. Judge Ruddy found this difference to be a significant infringementof his liberty interest.

Judge Ruddy found the exemption to be grossly disproportionate. Judge Ruddy specifically said that legislation,such as the exemption, that does not allow for any consideration of a person’s Aboriginal status offends the fundamental principle ofproportionality and therefore makes a sentence grossly disproportionate. [73] In R. v. Beck, 2014 NWTTC 9, an accused applied for bail and was denied based on his criminal record.

Operation of s.719(3.1) meant that the offender would spend 7 months more in custody by being ineligible for enhanced credit due to his prior criminalrecord than a like offender who had been granted bail or who had been denied bail, but not with an endorsement that it was due to hiscriminal record.

Judge Malakoe, in finding the impugned exclusion unconstitutional, stated at para 104, [104] If the test of gross disproportionality is to be considered by “a reasonable person...properly informed about the philosophy of thelegislative provisions, Charter values and the actual circumstances of the case” (referencing the R. v. Malmo-Levine case), it hard to seehow any loss of liberty based on a decision to exercise a Charter right cannot be found to be grossly disproportionate. [74] In the R. v.

Safarzadeh-Markhali case, the Ontario Court of Appeal, considering the exemption based on denial of bail based onan offender’s criminal record, found the result of being liable to spend 12 months longer in jail than an offender who was granted bailwas an effect that was grossly disproportionate. [75] In all the circumstances, the Court finds that the potential differential in sentence for Ms. Bittern, created by application of theimpugned exemption, represents a circumstance of gross disproportionality. [76] Having found the impact of the impugned exemption on Ms.

Bittern is grossly disproportionate, it is not necessary to go further

and consider reasonable hypotheticals. [77] However, there are several obvious reasonable hypotheticals that underscore the gross disproportionality of the impugnedexemption. [78] First, if Ms. Bittern’s situation is compared to another offender in her identical circumstances, except that the other offender,also had bail revoked but was then granted release on bail instead of being detained, the result is that Ms. Bittern will spend much longerin jail than the other offender does, since the other offender will be eligible for remission on her sentence going forward. [79] Second, if one compares Ms.

Bittern’s situation with an offender in the same circumstances except that such other offender wasbail denied on the robbery charge (but not on the basis of her criminal record so that there was not a designation pursuant to s. 515(9.1)). Such other offender would be entitled to seek enhanced credit for the entire time spent in PSC on the robbery, whereas Ms. Bitterncannot. The fact Ms.

Bittern would end up spending more time in custody even if receiving the same stated sentence, for reasons thathave nothing to do with sentencing, must reflect a grossly disproportionate effect of the impugned exemption. [80] Third, one may compare Ms. Bittern’s situation with an offender who was on bail for the robbery and never had her bailrevoked, and so would be eligible to be considered for remission once she starts serving her sentence. The result will still be that Ms.Bittern serves a longer period of time in custody due to the exemption.

This will be the case even if the breach charge triggering therevocation was stayed. [81] Further, if the conclusions in Saunders, McDougall and Maytwayashing, supra, are correct, such that “detention” does notcrystallize until there has been a bail denial after revocation, that would mean in effect that an offender who made a bail application andwas denied, as Ms. Bittern was, would not be eligible to apply for enhanced credit whereas someone who had bail revoked but did notmake a bail application, would be.

That would mean the impugned exemption would, in essence, have the effect of punishing someonewith a longer jail sentence simply for exercising his or her right to make a bail application. It is hard to imagine that such a distinction,which punishes an offender with more time in custody for exercising a Charter right to reasonable bail, by making a bail application, canbe constitutionally tolerated. [82] It is difficult to totally separate the concepts of gross disproportionality, on the one hand, and disproportionality, on the other.

In the Court’s view, since the impugned exemption has the effect of taking away someone’s liberty for fifty percent longer than wouldbe the case without the exemption, for reasons that have nothing to do with sentencing objectives and are contrary to fundamentalsentencing principles, that exemption has a grossly disproportionate effect. The Court is of the view that properly informed Canadianswould find the extra punishment resulting from application of the exemption intolerable.

Is the impugned exemption overbroad? [83] A legislative provision will violate s. 7 Charter if it is “overbroad”, namely if it restricts a person’s life, liberty or security ofthe person in a way that goes beyond what is required in order to achieve its legislative objective. [84] In analysing a provision to determine if it is overbroad, deference must be given to the means that Parliament chose. A courtmust determine whether the means selected to achieve the provision’s goals are reasonably tailored to do so (R. v. Heywood (SCC), [1994] 3 S.C.R. 761).

What are the objectives of the impugned exemption? [85] The Supreme Court of Canada in R. v. Summers, supra, at paragraphs 51 to 58, considered the intent of Parliament in enactingthe Truth in Sentencing Act, and concluded such intent was to restrict the amount of credit given for PSC, and in particular to do awaywith the routine practice of granting two for one credit for PSC. A further intent was to make the process of granting PSC credit moretransparent and easily understood by the public.

Are the means chosen by Parliament, including the impugned exemption, necessary in order to obtain those objectives? [86] The stated goal of transparency is addressed by ss. 719(3.2) and 719(3.3), which require the court to provide reasons for creditgiven for PSC beyond 1:1. [87] The stated goal ending the practice of awarding 2:1 credit is addressed by ss. 719(3) and (3.1), which limit credit for PSC to 1:1and “if the circumstances justify it”, to 1.5:1. [88] The other stated goal of restricting the awarding of credit for PSC is further addressed by barring consideration for creditbetween 1:1 and 1:5 to offenders of specified types (those who are denied bail based on their criminal records and those, like Ms.

Bittern,whose bail has been revoked and then bail is subsequently denied). The question is whether the impugned exemption that provides thatbar goes further than is necessary to achieve the goal of restricting the awarding of pre-sentence credit. [89] Judge Ruddy considered this issue in R. v. Chambers, supra.

Judge Ruddy found the Parliamentary objective of limiting theamount of credit for PSC and getting rid of the 2:1 credit is met by the enactment of s. 719(3) and (3.1), but that the exemption at issuecontained in 719(3.1) is not necessary to achieve the objectives of the Truth in Sentencing Act. [90] An offender who seeks enhanced credit must show on a balance of probabilities that he or she would likely have receivedremission or parole in order for a court to find the circumstances justify enhanced credit under 719(3.1) (R. v. Summers, supra.).

Thefacts relevant to such a determination generally will deal with an offender’s behaviour, attitude and circumstances while in remandcustody. An offender’s behaviour while on bail has not been referred to in the jurisprudence as a factor for consideration relative towhether an offender would likely have received remission or parole. Further, in R. v. Summers, the Supreme Court of Canada found thatthe legislative objectives are met by limiting enhanced credit to 1.5 to 1 and not limiting the credit to unusual or exceptionalcircumstances.

It follows, in my view, that any further limitation, which the impugned exemption purports to impose, is overbroad as it

is a more restrictive regime, and one not required to meet the stated legislative objectives. [ 91 ] R. v. Summers also makes it clear that in order for an offender to be entitled to enhanced credit, he or she must provide some evidence to show on a balance of probabilities that he or she would likely have received remission or parole had he or she been a sentenced prisoner during the time of his or her PSC.

Whether or not he or she allegedly, or in fact, breached one or more bail conditions is not a factor in that determination. [ 92 ] The Court finds that the impugned exemption goes beyond what is necessary to meet the legislative goals of Parliament by imposing a bar on credit for PSC for subsets of offenders, for no reason that is necessarily linked to those goals. [ 93 ] Accordingly, the Court finds that the s. 719(3.1) exemption in issue is overbroad and offends s. 7 Charter . Conclusion as to s. 7 Charter [ 94 ] The Court is satisfied that the impugned exemption does infringe Ms.

Bittern’s s. 7 Charter rights. [ 95 ] That exemption makes an offender’s bail status, based on factors that are not part of the sentencing process, a significant factor in determination of the length of an offender’s actual time spent in jail. The exemption results in the principle of parity being violated. The exemption does not permit consideration of Gladue factors in assessment of PSC. Overall the impugned exemption interferes with the fundamental sentencing principle of proportionality. [ 96 ] Further the impugned exemption leaves an offender such as Ms.

Bittern, who had bail revoked and then denied, in a different position than an offender in identical circumstances but for the bail revocation, and possibly an offender whose bail was revoked but did not make a further bail application. Bail revocation and the factors that are necessarily relied on to make a revocation decision, and the factors relevant on a decision to deny bail, will result in offenders in identical circumstances, but for bail status, serving different periods of time in jail. In Ms. Bittern’s case, that will be at least 7.4 months.

In such manner, the exemption creates a situation of gross disproportionality between offenders. [ 97 ] The Court is also satisfied the exemption is overbroad in restricting Ms. Bittern’s liberty beyond what is necessary to satisfy the legislative objectives. Does the impugned exemption in s. 719(3.1) violate s. 15(1) Charter ? [ 98 ] Ms. Bittern argues that the impugned exemption violates her s. 15(1) Charter right to equality under the law. [ 99 ] The onus is on Ms. Bittern to prove a breach on the balance of probabilities. [ 100 ] Section 15(1) Charter provides: 15(1).

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability . [ 101 ] Ms. Bittern is an Aboriginal offender. A Pre-Sentence and Gladue Report makes it clear that she has been affected by factors that will need to be considered on sentencing pursuant to s. 718.2 (

e) Criminal Code . She argues the effect of the impugned exemption is that she may receive a lengthier jail sentence due to factors based on race. Specifically she says that she is Aboriginal, that Aboriginal persons have bail revoked and are denied bail more often than non- Aboriginal offenders, and so, due to the impugned exemption, Aboriginal offenders will be less likely than non- Aboriginal offenders to be able to apply for enhanced credit for PTC. [ 102 ] The Supreme Court of Canada set out the two part test for determining a violation of s. 15(1), in R. v. Kapp , 2008 SCC 41 at para 17 : 1.

Does the law create a distinction based on an enumerated or analogous ground? 2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? [ 103 ] Looking at the first part of the Kapp test, does the impugned exemption create a distinction on the basis of Aboriginal background? [ 104 ] The wording of the exemption does not create an explicit distinction between Aboriginal and non-Aboriginal offenders. But the effect of the exemption, in the Court’s view, certainly does.

The exemption prohibits the Court from considering on sentence (which includes the credit to be given for PSC), the very factors the Supreme Court of Canada has said in Ipeelee and Gladue (and indeed the very factors incorporated into s.718 (2) (

e) Criminal Code ) that the Court must consider – those are the effects that Aboriginal people have sustained as a result of certain societal factors in our Canadian history, including colonialism and the residential school system. Ipeelee and Gladue require that considerations be given when sentencing Aboriginal offenders that are different than given to non- Aboriginal offenders.

The impugned exemption does not permit any consideration of different factors for Aboriginal offenders, but rather precludes consideration of enhanced credit for PSC to all offenders, regardless of race. [ 105 ] The Court was provided with a report entitled “Managing the Province’s Adult Offenders” prepared by the Office of the Auditor General, Manitoba, in March 2014. According to that report, Aboriginal persons made up about 15% of Manitoba’s total population, but accounted for about 70% of Manitoba’s incarcerated adult offenders, and for about 56 % of adults being supervised in the community (p.

242). Further, the report notes that 64% of the prison population in Manitoba, in 2010/2011, was on remand waiting to dispose of theircharges (page 251). [106] The Supreme Court of Canada, in both R. v. Gladue and R. v. Ipeelee, recognized that courts tend to impose longer sentences onAboriginal offenders and also are more inclined to deny bail to Aboriginal offenders (Ipeelee, para 61; Gladue, para 65).

That meansAboriginal offenders will be more often than non-Aboriginal offenders, “caught” by the impugned exemption, and will more often thannot, therefore, end up with longer effective sentences than non- Aboriginal offenders of similar circumstances and for similar offences. In the Court’s view, that situation satisfies the first component of the Kapp test. The exemption creates a distinction based on race. [107] Turning to the second part of the Kapp test, does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

That is, does the exemption itself cause overrepresentation of aboriginal offenders in the justice system? Or, as the question was framedin Quebec (Attorney General) v. A., 2013 SCC 5, does the distinction have the effect of perpetuating an arbitrary disadvantage on Ms.Bittern due to her membership in the group (in this case, the Aboriginal population)? [108] In Law v. Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497, the Supreme Courtof Canada set out a list of four factors to consider in deciding if a law is discriminatory.

The list is not exhaustive. [109] The first factor is pre-existing disadvantage, stereotyping, prejudice or vulnerability experienced by the individual or group atissue. Indeed in Canada, due to concerns about over-representation of Aboriginal offenders in custody, s. 718.2(

e) was added to theCriminal Code to require judges in sentencing aboriginal offenders, to consider their circumstances, and, where appropriate to considernon-custodial sentences. Concerns about the disadvantages Aboriginal people have suffered are addressed by the Supreme Court ofCanada in the Gladue and Ipeelee cases. [110] The second factor is the correspondence or lack thereof, between the ground on which the claim is based and the actual need,capacity or circumstances of the claimant or others.

The impugned exemption does not leave room for consideration as to why a claimanthas breached bail conditions, which leads to revocation. Aboriginal offenders who disproportionately suffer from conditions that willmake it more likely they will breach conditions of a recognizance, will end up having bail revoked due to breach of bail conditions.

Thatmeans they will more often be caught by the impugned exemption, such that they will end up with longer effective jail sentences. [111] The third factor, being the effects of the impugned law upon a more disadvantaged group in society does not come into play. [112] The fourth factor is the nature and scope of the interest affected by the impugned law. The interest affected is the liberty interestof Ms.

Bittern in this case, and of Aboriginal offenders who have bail revoked and then denied. [113] In the result, as recognized in Gladue and Ipeelee, Aboriginal offenders are more likely to be denied bail due to theirbackgrounds. Therefore, by operation of the impugned exemption, Aboriginal offenders will become liable, more than non - Aboriginaloffenders, to longer periods of time in custody. The functional effect of the exemption is that Aboriginal offenders are treated differentlyfrom other offenders. [114] Accordingly, I find that the impugned exemption amounts to a breach of s. 15 Charter. Judge Ruddy, in R. v.

Chambers, supra,came to the same conclusion. Can the impugned exemption in s. 719(3.1) Criminal Code be saved by s. 1 Charter? [115] The burden shifts to the Crown to show that the impugned exemption is “demonstrably justified”, having reference to the test inR. v. Oakes, (SCC), [1986] 1 S.C.R. 103. [116] The Crown did not attempt to justify the infringement. Certainly, although the impugned exemption in my view, passes the firststage of the Oakes analysis (that is, that the means is rationally connected to the objective of the legislation), it does not meet the othertwo stages of the proportionality analysis.

The impairment of the right is not minimal nor are the effects of the exemption proportionateto the objective. [117] The impugned exemption is not saved by s. 1 Charter. Conclusion and Remedy [118] Pursuant to s. 52(1) of the Constitution Act 1982, the Court finds the impugned exemption is inconsistent with s. 7 and with s.15(1) of the Charter, and is of no force and effect in this proceeding. The exemption is not saved by s. 1 Charter. [119] This Court does not have jurisdiction to make a Declaration of Statutory Invalidity in relation to the impugned provision.

But thisCourt must not apply legislation that is unconstitutional. [120] For the foregoing reasons, Ms. Bittern’s motion is granted. [121] Section 719(3.1) of the Criminal Code will be read down, to exclude consideration of the impugned exemption, such that Ms.Bittern will be sentenced without regard to that exemption. Accordingly, Ms. Bittern is not precluded by s. 719(3.1) Criminal Code fromapplying for enhanced credit for her PSC. “ORIGINAL SIGNED BY:”

CARLSON, P.J. Catherine Carlson, P.J. E R R A T U M There is one correction in the above judgement, as follows: There is a typographical error contained on page 7, in paragraph 30. The paragraph should read: [30] Ms. Bittern advances arguments under s. 7 Charter that the impugned exemption affects her liberty interest, that one or more principles of fundamental justice are engaged, and that the limitation on her liberty interest is not in accordance with one or more of those principles, including proportionality. Dated this 26th day of September, 2014. “ORIGINAL SIGNED BY:” Catherine Carlson, PJ