2013 QCCA 1431, 2013 QCCA 1431

R. c. Henrico 2013 QCCA 1431 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005282-122 (500-73-003565-112) (500-73-003566-110) (500-73-003567-118) (500-73-003586-118) DATE: August 27, 2013 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v.

ROBERT HENRICO and RENÉ BARIL RESPONDENTS – Accused JUDGMENT [ 1 ] The appellant appeals from a judgment of the Court of Quebec, Criminal and Penal Division, District of Montreal (the Honourable Judge Isabelle Rheault), rendered on October 3, 2012, that sentenced the respondent Henrico to thirty-four months' imprisonment and the respondent Baril to forty-four months' imprisonment, after granting credit of one and one-half days for every day spent in pre-sentencing custody, pursuant to subsection 719(3.1) Cr.

C. [ 2 ] For the reasons of St-Pierre J.A., with which Doyon and Kasirer JJ.A. agree, THE COURT : [ 3 ] GRANTS leave to appeal on grounds 9(

b) to 9(

e) of the motion for leave to appeal and DISMISSES the appeal. FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. Mtre Michel F. Denis, Ad. E. PUBLIC PROSECUTION SERVICE OF CANADA For the appellant Mtre François Bordeleau For the respondent Robert Henrico Mtre Kathlyn Gauthier CORDEAU PARÉ MEUNIER & ASSOCIÉS For the respondent René Baril Date of hearing: March 1, 2013

REASONS OF ST-PIERRE, J.A. [ 4 ] At issue in this case is the calculation of the credit to be granted for the respondents' pre-sentencing custody. The judge granted them one and one-half days for every day served, while the appellant claims that she should not or could not have done so for the entire period. [ 5 ] The quantum of the sentences imposed is not at issue, as the appellant declares being satisfied therewith. [ 6 ] Rather, the appellant is of the view that the judge erred in her

interpretation of the expression "if the circumstances justify it" in subsection 719(3.1) Cr.

C ., giving it too broad a scope by taking into consideration the personal conditions of the accused. [ 7 ] According to the appellant, [ translation ], "these circumstances must be connected with the objective conditions of detention, not the personal conditions of the detainee who is subjected to them" and [ translation ] "[t]hey must be exclusively attributable to the government for having failed to provide satisfactory conditions of detention in light of the circumstances". [ 8 ] The appellant also faults the judge for using some of the facts adduced as the basis for findings of fact and clearly unreasonable inferences regarding, for example, the presence of vermin, the unusual climate of violence, the presence of drugs and alcohol, and the frequency and duration of lockdowns at the Montreal Detention Centre ("Bordeaux Prison"). [ 9 ] I do not share the opinions submitted by the appellant, and I would dismiss the appeal. [ 10 ] First, the expression "if the circumstances justify it" allowed the judge, in the exercise of her discretion under subsection 719(3.1) Cr.

C., to take into consideration the personal circumstances of the detainees who served time in pre-sentencing custody. Second, the judge's findings of fact and the inferences she drew on the basis of those facts are supported by the evidence. Her analysis contains no error of law or palpable and overriding error of fact, and only such an error would justify our intervention. Leave to appeal [ 11 ] In the motion for leave to appeal, the appellant writes: [ translation ] 9.

The appellant seeks leave to appeal the sentences solely with respect to the time credited for pre-sentencing custody, on the following grounds: (

a) The trial judge erred in law by considering the fact that it was the first time the respondents had been incarcerated. Circumstances justifying credit of one and one-half days must have a connection with the pre-sentencing custody. Moreover, the joint submission to the trial judge had already individualized the sentence by taking into account the fact that it was the first sentence of incarceration for the respondents. (

b) The trial judge erred in her assessment of the evidence as to the violence in Wing C of Bordeaux Prison. The respondents testified that they did not suffer any violence to their persons during their pre-sentencing custody. (

c) The trial judge erred in her assessment of the evidence by finding that Wing C of Bordeaux was [ translation ] "unsanitary". The evidence showed that this wing is cleaned during a two-hour period every day. (

d) The trial judge erred in her assessment of the evidence as to prison overpopulation; the evidence showed that there was no overpopulation in Wing C of Bordeaux. (

e) The trial judge erred in her assessment of the evidence by basing herself on evidence that had not been adduced. [ 12 ] Because of the novelty of the issue, the appellant has already obtained leave on the ground bearing on the

interpretation of the expression "if the circumstances justify it", but the decision as to the other grounds has been referred to the Court. [1] [ 13 ] In grounds 9(

b) to 9(

e) of the Crown's motion for leave, the appellant refers to alleged errors committed by the judge. That being the case, and given the issue raised by ground 9(

a) of the motion for leave to appeal, I find it useful to grant leave to appeal on these other grounds as well. The judgment under appeal [ 14 ] Robert Henrico (Henrico) and René Baril (Baril) were charged with conspiring to import cocaine. [ 15 ] Both entered guilty pleas. [ 16 ] In a judgment dated October 3, 2012, Isabelle Rheault J. of the Court of Quebec, Criminal and Penal Divison (the judge), imposed the following sentences:

Henrico : 34 months as of the date of sentencing, the joint submission being 60 months and the credit for pre-sentencing custody served being 36 months (i.e., 17 months and 1 week credited at a ratio of 1.5:1); Baril : 44 months as of the date of sentencing, the joint submission being 70 months and the credit for pre-sentencing custody served being 36 months (i.e., 17 months and 1 week credited at a ratio of 1.5:1). [ 17 ] At the time of sentencing, the judge noted that Henrico and Baril had been incarcerated since the very beginning, that is, for seventeen months and one week, in Wing C at Bordeaux Prison. [ 18 ] She noted that Henrico, who is 71 years old, has no criminal record, while Baril, who does have a few prior convictions scattered throughout the years, has never before been incarcerated.

She found that neither of them had any [ translation ] "prison experience" when they entered Bordeaux and that they [ translation ] "don't have the thick skin needed to serve time". She understood from the evidence that they learned to keep quiet, to avoid drawing attention to themselves, to refrain from informing on anyone, and to live in a climate of terror – in short, to endure their fate. [ 19 ] She described Wing C of Bordeaux Prison as unsanitary, a place where rats and vermin swarm and violence reigns.

She noted that it is a wing housing a number of street gang members [ translation ] "who are very powerful and where there are a lot of drugs as well as abundant amounts of adulterated alcohol". She found that it was a place that [ translation ] "did not take human dignity into account, given the sanitary conditions there and the prevailing climate of violence". [ 20 ] She stated that she also considered the fact that Henrico and Baril spent the summer in

Section B-00 of the prison during renovation work. She described what Henrico and Baril faced in

section B-00: [ translation ] "small room with the bare minimum of things to eat, a single shower for 90 people, confined there all day long with the right to go outside for about a half an hour during the day, and repeated lockdowns".

In each case, she estimated these [ translation ] "lockdowns" to represent approximately 60 days. [ 21 ] She pointed out the little support Henrico and Baril received, as well as the fact that they did not have many visitors: Baril's autistic son visited every month when his son's mother felt like bringing him, and Henrico's son visited him once in a while. [ 22 ] The judge relied on a judgment rendered by one of her colleagues. [2] Specifically, she said that she agreed that Parliament, in setting the ratio at 1:1, had normal conditions of detention in mind, but that this is not an appropriate description for conditions such as prison overpopulation, unsanitary environments, violence, and drug and alcohol trafficking, all of which prevail at Bordeaux Prison.

She found that these conditions were circumstances justifying a ratio of 1.5:1 under subsection 719(3.1) Cr. C. Positions of the parties The appellant [ 23 ] The appellant maintains that, because both the objective and subjective facts relating to the offence and the accused are taken into consideration at the time of sentencing, these facts are no longer relevant when determining how much credit, if any, should be granted for pre-sentencing custody. [ 24 ] Since the Criminal Code provides neither a definition of the expression "if the circumstances justify it" in subsection 719(3.1) Cr.

C . nor any indication of what such circumstances could be, the examples provided during the parliamentary debates leading up to the enactment of the Act should guide its

interpretation.

Extremely poor conditions of detention, extreme prison overpopulation, and long waits before trial as the result of factors that are not attributable to the accused may be considered circumstances justifying a higher ratio. [ 25 ] And in fact, the appellant admitted at trial that two periods of detention totalling four months and one week justified a 1.5:1 ratio: a first period of three weeks at the beginning of the respondents' incarceration, during which prolonged lockdowns were necessary due to marked violence, and a second period of three months and two weeks during renovations to Wing C, at which time their freedom of movement was restricted, not to mention the vermin infestation that coincided with this period. [ 26 ] According to the appellant, the judge committed errors on two levels in determining the credit to be granted for the rest of the period of pre-sentencing custody (the other thirteen months). [ 27 ] First, she took into consideration elements relating to the respondents' personal situations (age, lack of prior convictions or the fact that any prior convictions had not resulted in imprisonment, the frequency of the visits they received, or their lack of habituation to prison life), which she should not have done. [ 28 ] Second, her decision to grant enhanced credit for these thirteen months resulted from clearly unreasonable inferences drawn from the evidence: (1) the judge found that vermin were present at all times, whereas the infestation was essentially temporary (during the renovation work only); (2) she found that the Wing C environment was unusually violent at all times, whereas the evidence reveals only a temporary situation in late April and early May of 2012; (3) she referred to fourteen-hour lockdowns, which included overnight (ten hours) as well as the hours during which daily maintenance was performed in the wing. [ 29 ] While it is accurate to state that violence does exist in Wing C, the appellant argues that, generally speaking, it is no more violent there than in the other parts of the prison.

The same is true with regard to the presence of drugs and alcohol. These scourges exist in every prison in Canada. The respondents [ 30 ] The respondents begin by noting the importance of the discretion conferred on the trial judge when granting credit for pre-

sentencing custody. In this context, the respondent asks us to adopt and apply the principles set out in Wust , [3] which, even though developed before the 2010 amendments to the statute, are still valid. [4] [ 31 ] Despite the new parameters created by subsections 719(3) and (3.1) Cr. C ., according to the case law on these provisions – and particularly that dealing with the

interpretation of the expression "if the circumstances justify it", which permits granting credit on a ratio of 1.5:1 – trial judges still enjoy considerable latitude in such matters. [ 32 ] According to the respondents, neither the case law nor the Act supports the appellant's assertion that the subjective circumstances of the accused should not be taken into consideration. [ 33 ] Finally, in their view, the judge did not commit a palpable and overriding error in her assessment of the evidence, since all of her findings are supported by this evidence.

Analysis Issues in dispute [ 34 ] The accused were detained in Wing C of the Bordeaux Prison for seventeen months and one week, between April 27, 2011, and October 3, 2012. The judge granted them credit on a ratio of 1.5:1 for this entire period.

In doing so, she considered personal factors pertaining to each of the accused, as well as circumstances relating to the actions of the government. [ 35 ] With regard to the personal factors, the appellant maintains that they are irrelevant and cannot be relied on to either claim or grant enhanced credit. [ 36 ] As for the circumstances relating to the actions of the government, the appellant does not contest that they justify enhanced credit under subsection 719(3.1) Cr. C.

The appellant simply challenges the findings of fact and the inferences drawn by the trial judge. [ 37 ] Therefore, the matter raises the following two issues: First issue : Under subsection 719(3.1) Cr. C ., what circumstances can the judge take into account? Second issue : Did the judge commit palpable and overriding errors in her analysis of the evidence and the inferences to be drawn therefrom?

Relevant legislative provisions [ 38 ] Before February 22, 2010, the date the Truth in Sentencing Act [5] (the " Act ") came into force, it was common practice to grant two days' credit for every day of preventive custody served. [6] In some cases, judges even granted credit on a ratio of 3:1 or 4:1. [7] [ 39 ] At the time, the relevant Criminal Code provision was drafted as follows: 719. ...

(3) Pour fixer la peine à infliger à une personne déclarée coupable d’une infraction, le tribunal peut prendre en compte toute période que la personne a passée sous garde par suite de l’infraction. 719. ...

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence. [ 40 ] Since February 22, 2010, the applicable legislative provisions have read as follows:

719. ...

(3) Pour fixer la peine à infliger à une personne déclarée coupable d’une infraction, le tribunal peut prendre en compte toute période que la personne a passée sous garde par suite de l’infraction; il doit, le cas échéant, restreindre le temps alloué pour cette période à un maximum d’un jour pour chaque jour passé sous garde.

(3.1) Malgré le paragraphe (3), si les circonstances le justifient, le maximum est d’un jour et demi pour chaque jour passé sous garde, sauf dans le cas où la personne a été détenue pour le motif inscrit au dossier de l’instance en application du paragraphe 515(9.1) ou au

titre de l’ordonnance rendue en application des paragraphes 524(4) ou (8).

(3.2) Le tribunal motive toute décision d’allouer du temps pour la période passée sous garde et fait inscrire les motifs au dossier de l’instance.

(3.3) Il fait inscrire au dossier de l’instance et sur le mandat de dépôt l’infraction en cause, le temps passé sous garde, la période d’emprisonnement qui aurait été infligée n’eût été tout temps alloué, le temps alloué, le cas échéant, et la peine infligée.

(3.4) L’inobservation des paragraphes (3.2) ou (3.3) n’entache pas la validité de la peine infligée. 719. ...

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.

(3.3) The court shall cause to be stated in the record and on the warrant of committal the offence, the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed.

(3.4) Failure to comply with subsection (3.2) or (3.3) does not affect the validity of the sentence imposed by the court. First issue: Under subsection 719(3.1) Cr. C., what circumstances can the trial judge take into account? [ 41 ] The appellant submits that judges ought to limit themselves to a consideration of the objective conditions of detention provided during the pre-sentencing custody period, and that they should not consider the personal conditions of the detainee who is subjected to them.

In other words, according to the appellant, the only circumstances that permit the application of the 1.5:1 ratio are those that can be attributed to the government's failure to provide satisfactory conditions of detention. [ 42 ] Thus, the question the appellant seeks to have answered can be stated as follows: Does the expression "if the circumstances justify it" permit the consideration of both the objective conditions of detention and the personal conditions of the detainee who is subjected to them, or does it limit the analysis to the conditions provided by the government so that it may be determined whether they are satisfactory or deficient? [ 43 ] In my view, the expression "if the circumstances justify it" should be given a broad and liberal

interpretation that allows for the consideration of both the objective conditions of detention provided during the time served in pre-sentencing custody and the personal conditions of the detainee subjected to them. [ 44 ] I come to this conclusion on the basis of the following factors, which I will first list here and later revisit in more detail: • Subsections 719(3) and 719(3.1) Cr. C. should be interpreted in accordance with the modern approach to

interpretation as articulated by the author Driedger and accepted by the Supreme Court of Canada. • A reading of the contents of the Official Report of Debates concerning the Act reveals contradictory statements suggesting that Parliament's intent is not expressed in these debates. • The objectives sought by Parliament are clear. • The expression "if the circumstances justify it" is not defined, qualified, or otherwise circumscribed.

• Admittedly, the Act changes the manner in which credit for pre-sentencing custody is granted by setting out various parameters, but it does not otherwise preclude the exercise of the broad discretionary power of trial judges in such matters. • The case law prior to the enactment of the Act remains largely relevant and applicable. • Trial judges, in exercising their discretion, must take into consideration all of the circumstances of any case before them. Subsections 719(3) and 719(3.1) Cr. C. should be interpreted in accordance with the modern approach to

interpretation as articulated by the author Driedger and accepted by the Supreme Court of Canada. [ 45 ] Several of this country's appellate courts have had the opportunity to examine the amendments in the Act from one perspective or another.

The Supreme Court of Canada has not yet ruled on the matter, but it has granted leave to appeal [8] in Carvery . [9] [ 46 ] In their analysis of the legislative provisions, three courts of appeal have applied the modern interpretive approach advocated by Driedger, [10] which has been applied by the Supreme Court of Canada in Rizzo [11] and Bell ExpressVu , [12] among other cases. [ 47 ] I also believe that this is the appropriate method here, and that subsections 719(3) and 719(3.1) Cr.

C. should be interpreted "in their grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act , and the intention of Parliament”.

A reading of the contents of the Official Report of Debates concerning the Act reveals contradictory statements indicating that Parliament's intent is not expressed in these debates. [ 48 ] To answer the first question raised by the appeal, the appellant asks us to use the contents of the Official Report of Debates in our attempt to discern the intent of Parliament. [ 49 ] In support of the argument that Parliament’s intent is expressed in the Official Report of Debates, in paragraphs 19 to 22, 33 to 36, and 39 of its factum, the appellant reproduces or refers to certain remarks made by then-Minister of Justice the Honourable Rob Nicholson, by an MP of the governing party (Gord Brown), by Senator John D.

Wallace, and by Senator Pierre Claude Nolin. [ 50 ] I do not accept the argument that Parliament's intent should be discerned from the contents of these diverse comments. Nor do I believe that it would be appropriate to use the contents of the Official Report of Debates to answer the first issue raised in the appeal.

At best, these exchanges provide some general indicators, but in any event, there is no point in relying on them since such information is already apparent in the purpose and wording of the Act . [ 51 ] In this respect, I adopt as my own the following remarks made by my colleagues from the Courts of Appeal for Nova Scotia, Manitoba, and Ontario: Excerpts from the reasons of Beveridge J.A. in Carvery [83] I have no difficulty with the admissibility of these sources, nor with reliance on them to assist in understanding the mischief the legislation was meant to address and hence, the object of the Act .

The debates and speeches reveal what is already easily discernible — the general rule of a 2:1 credit was to be scrapped in all circumstances, and there was a perceived need to address public perception that sentences were being viewed as too lenient due to a lack of information about why and how much credit was being given for time spent in custody. [84] … In my opinion, in the circumstances of this case, it is simply not appropriate to try to rely on these extrinsic materials to try to discern what Parliament intended by the language and structure of the legislation. [13] Excerpts from the reasons of Steel J.A. in Stonefish 56 Historically, Canadian courts were generally distrustful of extrinsic materials as an aid to statutory

interpretation. However, that reluctance has been relaxed in recent years and a wide range of legislative history materials are admissible to assist in the

interpretation of legislation. Legislative history of an enactment consists of everything that relates to the conception, preparation and passage of the legislation. See Rizzo at para. 35 . 57 The information gleaned from legislation's history can be helpful in the exercise of statutory

interpretation where it is relevant and reliable, although it should always be used carefully and with the understanding that each case is fact-specific and the weight to be given the material is to be established on a case-by-case basis. 58 As Justice Cromwell noted recently in Németh v. Canada (Justice) , 2010 SCC 56 , [2010] 3 S.C.R. 281 (at para. 46 ): These suspension provisions were added to the IRPA as consequential amendments when the EA [the Extradition Act , S.C. 1999, c. 18] was enacted in 1999. Their purpose was explained by Departmental officials testifying before Parliamentary committees.

Resort to this material is appropriate where, as here, it is relevant and reliable and provided it is used with caution and not given undue weight .... … 60 There has been some reliance on the legislative history of Bill C-25 in trying to resolve what Parliament intended by the words and structure of the amendments to s. 719 of the Code . However, the legislative history here should be approached with caution. There is some divergence between the comments made by members of the government and those of their staff. …

66 In trying to discern parliamentary intent from the comments of the Minister of Justice, Mr. Daubney's comments and the discussions and actions in the committees of both the House of Commons and the Senate, the Nova Scotia Court of Appeal in Carvery concluded that the inconsistency in the comments by the various actors resulted in an inability to rely upon the legislative history for any clear direction for the purpose of statutory

interpretation. The court stated (at para. 84): .... In my opinion, in the circumstances of this case, it is simply not appropriate to try to rely on these extrinsic materials to try to discern what Parliament intended by the language and structure of the legislation. 67 I agree with the conclusion of the court in Carvery on this point. [14] Excerpts from the reasons of Cronk J.A. in Summers 84 But, in this case, the legislative record sheds little reliable light on the meaning and reach of the word "circumstances" in s. 719(3.1).

Reliance on legislative history to discern the intended meaning of a statutory provision is appropriate only where the legislative record is relevant and reliable. Even then, it must be used with caution: Németh v. Canada (Justice) , 2010 SCC 56 , [2010] 3 S.C.R. 281, at para. 46 .

Here, as observed in Carver y , at paras. 83-84 , and Stonefish , at paras. 60-67 , the record is replete with conflicting and inconsistent statements made by representatives of the Government during the parliamentary review of Bill C-25 regarding s. 719(3.1). 85 Apart from the Minister's statements, comments by other Government spokespersons during consideration of Bill C-25, including by David Daubney — a senior policy advisor in the Department of Justice who was involved in drafting Bill C-25 — undermine the claim that enhanced credit was intended to apply only in exceptional circumstances that exclude the loss of remission and parole eligibility by remand offenders.

Indeed, certain of Mr. Daubney's remarks suggest precisely the opposite. 86 One example will suffice to make this point. Mr. Daubney testified before the House of Commons Standing Committee on Justice and Human Rights (1 June 2009), at p. 1605, in part as follows: As you know, the more common expression in the Criminal Code is "in exceptional circumstances", but we deliberately didn't use that here because the circumstances won't be that exceptional; they'll be fairly common and, in the case of the parole loss and the remission loss, will be universal . [Emphasis added.] 87 Earlier in his testimony, Mr.

Daubney also stated, at p. 1550: The direction we had from our Minister and from the government generally was to prepare a bill based on one to one, with an opportunity to go up to 1.5 if the circumstances justified it. Frankly, its impact will be that courts trying to do justice will find that in many cases the circumstances do justify something between one to one and 1.5:1, but we'll have to see how that plays out . [Emphasis added.] 88 These remarks are wholly inconsistent with the narrow

interpretation of s. 719(3.1) contended for by the Crown. They also appear to be inconsistent with some of the Minister's comments, as relied on by the Crown, concerning s. 719(3.1).

In these circumstances, in my opinion, the legislative record regarding Bill C-25 cannot be regarded as a reliable marker of Parliament's intention concerning the meaning and scope of the word "circumstances" ins. 719(3.1). [15] The objectives sought by Parliament are clear [ 52 ] With the Act , Parliament intended to amend the practice of applying a ratio of 2:1, rule out its automatic application, establish a ceiling for the amount of credit that can be granted for pre-sentencing custody, and ensure the transparency of the sentencing process, including any credit granted for pre-sentencing custody. [ 53 ] In this respect, the contents of the debates prior to the enactment of the Act reveal no ambiguities or contradictions. [ 54 ] These have also been found to be the objectives of Parliament by the Courts of Appeal for Nova Scotia in Carvery , [16] for Manitoba in Stonefish , [17] for Alberta in Johnson , [18] for Ontario in Summers , [19] and for British Columbia in Bradbury . [20] [ 55 ] Therefore, while trial judges may still take into account time spent in custody, since the coming into force of the Act , the exercise of their discretion is now circumscribed by the new parameters that Parliament has set: (1) as a general rule, if the judge is of the view that time spent in pre-sentencing custody should be taken into account, then credit of one day for each day spent in custody should be granted; [21] (2) if the circumstances justify it, and save in the case of the two exceptions set out in subsection 719(3.1) Cr.

C. , the judge may increase the ratio of credit to be granted but never beyond a maximum of one and one-half days for every day spent in custody; [22] (3) the application of credit is no longer automatic; [23] (4) transparency is necessary, particularly with respect to the reasons for granting credit. [24] The expression "if the circumstances justify it" is not defined, qualified, or otherwise circumscribed. [ 56 ] In subsection 719(3) Cr. C ., Parliament does not impose any conditions on taking pre-sentencing custody into account. In the case of enhanced credit under subsection 719(3.1) Cr.

C. , it requires that the circumstances justify it, nothing more. Aside from the two exceptions provided, the expression "if the circumstances justify it" is not defined, qualified, or otherwise circumscribed. The Act is silent with regard to the circumstances in which enhanced credit is applicable. [ 57 ] If Parliament had wished to establish or qualify the circumstances to be considered, to set out relevant parameters, or to amend the law with respect to circumstances considered in the past, it was free to do so.

It could have defined the expression, "if the circumstances justify it" by adding an adjective to the word "circumstances" (for example: exceptional, unusual), by providing a detailed list, or by specifying a greater number of exceptions. Parliament did none of those things. [ 58 ] The Court of Appeal for Nova Scotia also made this observation in Carvery , [25] as did the Court of Appeal for Manitoba in Stonefish . [26]

[59] In Summers, Cronk J.A. of the Court of Appeal for Ontario also dealt with the issue, and her comments were later endorsed byBielby J.A. of the Alberta Court of Appeal in Johnson.[27] In paragraph 66 of her reasons, Cronk J.A. wrote the following: 66 I note, first, the obvious but important point that s. 719(3.1) is silent as to the situations that will justify enhanced credit for pre-sentence custody. As others have observed, the word "circumstances" in s. 719(3.1) is not qualified by any modifying or limitinglanguage. Nor is it defined under the Act. As indicated by Chief Judge Cozens in R. v.

Vittrekwa, 2011 YKTC 64, 275 C.C.C. (3d) 193,at para. 46, none of the words "exceptional", "unusual" or "special" (nor, I would add, any of the words "compelling", "extraordinary", or"rare") is used in s. 719(3.1) to constrain or limit the circumstances that may justify enhanced credit.[28] Admittedly, the Act changes to the manner in which credit for pre-sentencing custody is granted by setting out various parameters, but itdoes not otherwise preclude the exercise of the broad discretionary power of trial judges in such matters. [60] The Act changed some things, but not everything. [61] The Act imposes a maximum ratio of 1.5:1 in all circumstances.

It creates two exceptions where the 1.5:1 ratio isinapplicable.[29] It requires that circumstances justify the application of the 1.5:1 ratio. Finally, it imposes an obligation of transparencyand an obligation to give reasons. [62] A few excerpts from Summers, a judgment of the Court of Appeal for Ontario, illustrate what used to be common practice inCanada, which the Act brought to an end.

Excerpts from Summers 39 … the courts developed the practice of assigning credit for each day spent in pre-sentence custody at the rate of 2:1. … In theyears following Wust, the 2:1 crediting practice became well-entrenched, leading some courts to refer to it as a "norm" or "general rule":see Stonefish at para. 14. 40 On occasion, in the exercise of their discretion, sentencing judges credited pre-sentence custody on more than a 2:1 basis. … 41 The granting of credit at a rate of three or four times the number of days actually spent in remand custody proved to becontroversial, prompting calls by some for reappraisal of the approach to crediting pre-sentence custody.

See for example, the cautionaryobiter comments of Moldaver J.A. of this court, as he then was, in R. v. J.B. (2004), (ON CA), 187 O.A.C. 307, atfootnote 1.[30] [63] That said, aside from these few changes made by the Act, the trial judge retains full discretion when it comes to decidingwhether it is appropriate to grant credit for pre-sentencing custody. [64] Several colleagues from the appellate courts have already recognized this fact, and I wholly agree with their points of view. [65] In Carvery, for example, the Court of Appeal for Nova Scotia wrote: [77] An

interpretation that would lead to the imposition of sentences that offend the mandated principles of sentencing set out in theCriminal Code seems wrong. Parliament is of course at liberty to change the law and, if the intent of Parliament is clear in the language itused in an enactment, courts must, subject to a properly pleaded and successful constitutional challenge, give effect to it. The problemwith the language of s. 719(3.1) is that the circumstances a court may properly take into account are not defined specifically or evengenerally. The courts are left to discern what Parliament intended. In my opinion, an

interpretation that is in accord with the legislativeframework is the correct one, unless some other conclusion is dictated by other interpretative considerations. … [85] In the end, taking into account the words of ss. 719(3) and (3.1) in their grammatical and ordinary sense and read in the entirecontext of the legislative scheme and the object of the Act, the legislation provides for judicial discretion to grant credit of up to 1.5:1 fortime spent in pre-sentence custody if a judge is satisfied that the circumstances justify it, which includes consideration of the potentialloss for the offender of earned or statutory remission and parole.[31] … [66] In Stonefish, the Court of Appeal for Manitoba stated the following: 31 The Crown contends that the amendments were passed to change the routine crediting at sentencing of offenders havingserved time in custody on a 2:1 ratio.

It is submitted that when the language of the

section is given its ordinary meaning in light of itstotal context, Parliament's objective in the Act was to limit credit for PSC. 32 That much is clear and I agree with that contention. See R. v. Mayers (A.W.), 2011 BCCA 365 at para. 23, 310 B.C.A.C.188. There is no question that in passing the amendments to s. 719, Parliament intended to limit a judge's discretion in determining theamount of credit to grant an offender for PSC. 33 There is also no question that the amendments change the previous "rule of thumb" where judges generally granted twodays' credit for each day in custody.

The debates and speeches reveal what is already easily discernible - the general rule of a 2:1 creditwas to be scrapped in all circumstances (Carvery at para. 83): .... ... [T]here was a perceived need to address public perception that sentences were being viewed as too lenient due to a lack ofinformation about why and how much credit was being given for time spent in custody. 34 Instead, while the decision to grant any credit at all is still discretionary, the amount of PSC credit is limited to amaximum of 1:1 unless the "circumstances justify it." If the circumstances justify it, enhanced credit may be given to a maximum of1.5:1.

35 The amendments are also clear that such enhanced credit is not available to offenders who have been denied judicial interim release primarily because of their prior criminal record or because they have breached their conditions of release or committed an indictable offence while on bail. 36 Otherwise, the Act is silent as to when circumstances may justify the courts awarding the enhanced credit provided for in s. 719(3.1) of the Code . … 109 Credit for PSC is discretionary.

However, as a general rule, credit as set out in s. 719(3) of the Code on a 1:1 basis should be given for time spent in custody prior to sentencing, unless there is some good reason for denying it (see, for example, English at para. 28). On the other hand, enhanced credit on a 1.5:1 basis, as set out in s. 719(3.1) of the Code , may be given when the accused can show, on the balance of probabilities, that the circumstances justify it, in their individual case. 110 The circumstances that may justify enhanced credit in s. 719(3.1) of the Code do not have to be exceptional.

The language of the statute does not expressly refer to exceptional circumstances.

In this conclusion, I agree with the Nova Scotia Court of Appeal's decision in Carvery . [32] [ 67 ] In Johnson , Bielby J.A. of the Alberta Court of Appeal made the following remark: 29 … To this I would add that the express requirement for circumstances which "justify" enhanced credit must mean that Parliament did not intend it apply to every remand prisoner, but rather left the discretion of what circumstances supported it to the decision-maker in the arena in each individual case, the sentencing judge. [33] [ 68 ] Finally, in Summers , Cronk J.A. of the Court of Appeal for Ontario affirmed: 74 I therefore do not agree with the Crown's submission that the discretion conferred on sentencing judges to grant enhanced credit under s. 719(3.1) is "strictly controlled".

To the contrary, the language of s. 719(3.1) suggests that this discretion is unfettered (save for the express exclusions from enhanced credit identified in the

section and the overarching restriction that, in no event, may enhanced credit exceed that calculated at the maximum rate of 1.5:1). The need for justification of enhanced credit says nothing about what will constitute justification and under what conditions. Parliament was capable of identifying those conditions. [34] (Emphasis added.) [ 69 ] This is also what the author Clayton C. Ruby has stated: Notwithstanding the passage of Bill C-25, time spent in custody will continue to have an important effect on the sentence.

While the formula to calculate pre-sentence custody credit may have changed, many of the core principles from the pre-Bill C-25 era remain intact. [35] The case law prior to the enactment of the Act remains largely relevant and applicable. [ 70 ] Since the Act did not change everything when it comes to credit for pre-sentencing custody, case law from before its enactment that does not conflict with the new parameters in the Act is still relevant and the principles it sets out remain applicable. [ 71 ] I find that the following principles set out in Wust , [36] a judgment of the Supreme Court of Canada, are relevant and applicable to the present case despite the amendments in the Act : • Under subsection 719(3) Cr.

C ., pre-sentencing custody is deemed to be part of the sentence following conviction and thus constitutes a sentence imposed on the respondents after their guilty plea. • The legislative provisions dealing directly or indirectly with sentencing (such as subsections 719(3) and (3.1) Cr. C. ) should be interpreted in accordance with the general principles of sentencing. • The analysis of the credit to be granted for pre-sentencing custody and of the circumstances to be considered must be performed in light of the purposes and principles of sentencing as set out in

Part XXIII of the Criminal Code . • The generally harsh nature of pre-sentencing custody is well known and has been recognized. • The power of the trial judge is discretionary, and he or she exercises it with the objective of imposing a "just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence". • Save in the event of an error of principle or palpable and overriding errors in the trial judge's conclusions, it is best left to "the sentencing judge, who remains in the best position to carefully weigh all the factors which go toward the determination of the appropriate sentence, including the decision to credit the offender for any time spent in pre-sentencing custody". [ 72 ] The principle whereby the amount of time to be credited for pre-sentencing custody is determined on a case-by-case basis has not changed, on the contrary.

Subsections 719(3.1), (3.2), and

(3.3) Cr. C . testify eloquently to this fact. [ 73 ] For many years now, judges have exercised their discretion and considered various situations involving pre-sentencing custody. This experience, of which Parliament is aware, remains relevant when determining whether "the circumstances justify it", since Parliament has not deemed it necessary to otherwise define the expression or amend its scope. [ 74 ] In Kravchov , Kenkel J. of the Ontario Court of Justice listed several factors that have led judges to grant enhanced credit for pre-sentencing custody. In my view, these factors remain relevant, save to the extent that they are prohibited by the new parameters of the Act .

12 In determining whether it is appropriate to give enhanced credit for pre-trial custody, courts have looked at a wide range offactors, mostly related to the circumstances of detention and the effects of that detention on the particular accused. Those factorsinclude: - the effect of pre-trial custody on a particular prisoner due to age, infirmity, mental illness R. v. Gray, [1995] O.J. No. 236 (Ont. Gen.Div.), linguistic or cultural isolation R. v. Perrambalam, [2001] O.J. No. 3520 (Ont. S.C.J.) R. v. Rajakulasingham, [1994] O.J. No. 2357(Ont. Gen.

Div.); - incarceration at a facility that houses primarily men where that has resulted in isolation of a female prisoner R. v. Bennett, [1993] O.J.No. 892 (Ont. C.J.); - lengthy pre-trial custody R. v. Smith, [1995] O.J. No. 214 (Ont. Gen. Div.); - significant pre-trial custody where the accused has never been incarcerated before R. v. Bell, [1995] O.J. No. 4533 (Ont. Gen. Div.),R. v. Bennett, [1993] O.J. No. 892 (Ont. C.J.); - the availability of rehabilitative or education programs at the detention centre R. v. Jabbour, [2001] O.J. No. 3820 (Ont.

S.C.J.); - whether a jail is "overcrowded" and engaging in practices such as "triple bunking" R. v. Jabbour, [2001] O.J. No. 3820 (Ont. S.C.J.),R. v. Robinson, [2001] O.J. No. 5235 (Ont. C.J.); - the frequency of "lockdowns" and other measures denying the prisoner exercise and access to areas outside his or her cellR. v. Jabbour, [2001] O.J. No. 3820 (Ont. S.C.J.); - waiver of a preliminary hearing along with conditions of detention R. v. Whittaker, 2001 ABQB 873 , [2001] A.J. No. 1356(Alta. Q.B.); - the prevalence of disease and any other conditions which endanger the health of the prisoner R. v.

Poirier, [2001] O.J. No. 2320(Ont. C.J.); - custody during a public service strike where that labour disruption affected the care of the prisoners and prevented theirtransportation to court R. v. W.C.D., [2002] O.J. No. 1623 (Ont. S.C.J.); - any unusual delays in the progress of the case attributable to the Crown. [37] [75] The appellant alleges that the trial judge erred in principle by basing herself on irrelevant factors – i.e., subjective, personalfactors relating to the respondents – to determine whether the circumstances justified granting credit on a 1.5:1 ratio.

The appellantargues that these factors are not part of the analysis of the circumstances referred to in subsection 719(3.1) Cr. C. This provision does notsupport the appellant’s argument. As can be seen from the above examples from case law prior to the coming into force of the Act, thecourts have always admitted several factors that are subjective and personal to the particular detainees when evaluating the credit to begranted for pre-sentencing custody. The expression "if the circumstances justify it" used in subsection 719(3.1) Cr. C. still leaves roomfor such leeway.

Trial judges, in exercising their discretion, must take into consideration all of the circumstances of any case before them. [76] The discretion of trial judges under subsection 719(3.1) Cr.

C. (to determine whether the circumstances justify a 1.5:1 ratio)should be exercised on a case-by-case basis (made to measure, as opposed to off the rack). [77] In light of the ultimate objective, namely "to arrive at a fit and proper sentence" (paragraph 15 of Carvery), it is the specificcircumstances of the particular accused – all of them – that are relevant. [78] I therefore adopt as my own the following remarks of Cronk J.A. of the Court of Appeal for Ontario in Summers: 32 … Apart from this statutory provision and cognizant of the inability to antedate a sentence, the courts had also long recognizedthat fairness compelled consideration on sentencing of time spent in pre-sentence custody.

See for example, R. v. Sloan (1947), (ON CA), 87 C.C.C. 198 (Ont. C.A.), at para. 7. … 35 The jurisprudence of the Supreme Court emphasizes that sentencing is an intrinsically and profoundly subjective process. It isalso highly case-centric and individualized: R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46; R. v. Proulx,2000 SCC 5, [2000] 1 S.C.R. 61, at para. 82; R. v. Proulx, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43; R. v. Vittrekwa, 2010 ONCA452 , 2010 YKTC 452, 256 C.C.C. (3d) 113, at para. 48 and 52. In R. v.

Proulx, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 44,the Supreme Court put it this way: "[T]he goal of sentencing is to impose a just and fit sentence, responsive to the facts of theindividual offender and the particular circumstances of the commission of the offence." More recently, in R. v. Ipeelee, 2012 SCC 13,[2012] 1 S.C.R. 433, LeBel J. stated, at para. 38: The determination of a fit sentence is, subject to any specific statutory rules that have survived Charter scrutiny, a highly individualizedprocess.

Sentencing judges must have sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence andthe particular offender. Appellate courts have recognized the scope of this discretion and granted considerable deference to a judge'schoice of sentence. … 95 The Act is concerned with one aspect of the sentencing process — credit for pre-sentence custody. But the provisions of the Act

form part of an overall statutory scheme for sentencing and punishment, set out in the Code. The construction of ss. 719(3) and (3.1), therefore, must be undertaken in the context of, and in a manner that is harmonious, coherent and consistent with, that overall statutory scheme. … 108 My seventh, and final, reason for rejecting the narrow

interpretation of "circumstances" contended for by the Crown is a general, but compelling one. The fundamental task of a sentencing judge is to fashion a fit sentence, tailored to the circumstances of the particular offence and the particular offender .

The task of appellate courts on appeals against sentence, unless the sentence is one fixed by law, is to consider the fitness of the sentence appealed against and either vary the sentence within the limits prescribed by law for the offence of which the accused was convicted, or dismiss the appeal: s. 687(1) of the Code. 109 Thus, during both the sentencing phase of a trial and on appeal against sentence, the focus of the adjudicative inquiry is on the fitness of a sentence in the context of the facts of a specific case .

On that essential inquiry, all relevant factors are in play, at all levels of courts, concerning the offence, the offender and the governing principles of sentencing. Once again, if Parliament had intended to circumscribe the long-established roles of sentencing and appellate judges by limiting the circumstances that may bear on the crediting of pre-sentence custody in the manner urged by the Crown, it may fairly be said that this intention would be clearly expressed in affirmative language. Nothing in s. 719(3.1) of the Code reflects this intention. … 119 I conclude where I began.

In my view, properly construed, s. 719(3.1) of the Code permits a sentencing judge to credit pre- sentence custody up to a maximum of 1.5:1 for each day spent in pre-sentence custody where, on consideration of all relevant circumstances , such credit is necessary to achieve a fair and just sanction in accordance with the statutory scheme for sentencing and punishment set out in the Code.

On a proper record, the relevant circumstances that may justify this enhanced credit include ineligibility for remission and parole while in remand custody. (Underlining and boldface added.) [ 79 ] Therefore, the judge's decision to grant enhanced credit must be based on evidence or on information provided.

On this subject, I also adopt as my own certain remarks made by my colleagues Steel and Cronk JJ.A. (I could not have said it any better): Excerpts from Stonefish 92 Thus, there are cases where the evidence was presented through viva voce testimony by the accused and prison officials, through affidavits or agreed statements of fact, or simply presented as part of counsel's submissions (see, for example, Johnson ; Desjarlais at para. 21; and R. v. Zhu , 2011 ONCJ 163 (QL)). In R. v.

Edwards , 2012 ONCJ 519 (QL), counsel filed letters from prison officials stating how many days the facility had been in lockdown during the offender's PSC. 93 While the accused must provide some reason for the court to award enhanced credit, the nature of the evidence required should not overly complicate the sentencing process and exacerbate the problems currently facing the prison system. It is not realistic to always require prison officials to attend sentencing hearings in order to provide viva voce evidence of prison conditions or the conduct of the accused while on remand.

Instead the emphasis should be on credible and relevant information. Such information could be placed before the court by way of an agreed statement rather than as evidence per se . See, for example, Vittrekwa at para. 70; R. v. I.T.W. , 2012 BCPC 305 (QL) at para. 67 . 94 The bottom line is, as Green J. noted in Johnson (at para. 189): .... Further, and here adapting the words of Cole J. in R. v. Duff , [2010 ONCJ 493 (QL)], before acting on such claim [of arduous or oppressive remand conditions] "a sentencing judge should have some evidence that the ... [remand] conditions ... have been particularly onerous".

This may not prove an arduous evidentiary burden, but it is one that need be met where the exercise of judicial discretion replaces the application of settled formulae. [38] Excerpts from Summers 121 Recently, in R. v. Joseph , 2012 BCCA 359 , 326 B.C.A.C. 312, the British Columbia Court of Appeal considered the nature of the evidence required from an accused who seeks to establish that the circumstances justify enhanced credit for time spent in pre-sentence custody. Justice Harris concluded, at para. 31: The [Act] does not explicitly amend the traditional sentencing procedure.

There is nothing in s. 719 that amends the procedure by implication. There is no reason in principle to depart from the general rules applicable to all sentencing hearings when a court is asked to decide whether the circumstances justify granting enhanced credit. 122 I agree. The same general principles that govern the admission of evidence and the provision of information to the court for the purpose of sentencing also apply to determining the amount of credit, if any, to be granted for pre-sentence custody under ss. 719(3) and (3.1).

See Joseph , at paras. 32-33 . 123 Thus, the provision of information relevant to a claim for enhanced credit need not be an onerous task.

While formal evidence of an accused's likely prospects for remission or parole eligibility may be lead at a sentencing hearing, information bearing on these issues ( e.g. information regarding an accused's conduct during detention; an accused's co-operation with authorities and adherence to prison rules; or an accused's efforts to advance to trial) may also be furnished to a sentencing judge through counsels' sentencing submissions, by agreement between the prosecutor and the defence, or otherwise as contemplated under ss. 720 and -727 of the Criminal Code . [39] [ 80 ] In the present case, such evidence was adduced, and it contains information relevant to each of the factors the judge referred to

in her decision. The appellant maintains that the judge made a palpable error in her assessment of this evidence. I will return to this pointin my consideration of the second issue raised by the appeal. For the moment, I will limit my inquiry to a general verification of whetherthe evidence adduced or the information available contained elements that could support the judge's conclusion that the circumstancesjustified the application of a 1.5:1 ratio. [81] In my view, it did. [82] The examples referred to in Kravchov, supra, are from judgments or rulings on situations prior to the coming into force of theAct.

Nevertheless, as I have stated, they remain relevant. [83] Bearing in mind the facts in the present case, I refer in particular to cases in which the judge took into account the accused's age,the fact that he had never been imprisoned before, and the conditions of his detention. [84] According to the appellant, the consideration of subjective factors relating to the accused when determining credit for pre-sentencing custody is redundant, as these factors are analyzed under

section 718.2 Cr. C. at the time of sentencing. I do not agree. Theanalysis performed when determining the sentence, before considering any credit for pre-sentencing custody, is not the same as thatcarried out for the sole purpose of calculating such credit. Indeed, the exercise of the discretion conferred by subsection 719(3.1) Cr. C.involves an extra dimension, namely, the specific relevance of certain factors relating to the pre-sentencing custody. Therefore, thefactors considered in these two separate analyses might not be the same or, if they are, do not have the same impact.

It should be notedthat the credit granted to an accused for pre-sentencing custody is not a reward but compensation, the ultimate purpose being theimposition of a fit and appropriate sentence. [85] Since the Act came into force, the case law dealing with the expression "if the circumstances justify it" in subsection 719(3.1)Cr.

C. has developed along two lines, one consisting of cases where judges rely on conditions of detention and various other relatedelements (the so-called qualitative approach), the other of cases in which judges consider the impact of the pre-sentencing custody on theaccused's conditional release (the so-called quantitative approach). [86] With regard to the qualitative approach (the one of interest to us here), in Gosselin, Lavergne J. of the Court of Quebec lists thefollowing examples: [translation] [49] The time elapsed between the guilty plea and sentencing [R. v.

Abubeker, 2011 ONCJ 337], the unavailability of the court due toillness, [R. v. Payne, (NLPC)], the geographical distance of the inmate’s family [R. v. Campbell, 2010 ONSC 6973;see also R. v. Guo, 2011 QCCQ 10469], the inmate’s financial inability to pay the required surety [R. v.

J.B., 2011 BCPC 158], and thedifficult conditions are all circumstances taken into account by courts when granting credit of a day and a half.[40] [87] The decisions to which Lavergne J. referred have all been rendered under the Act, but, as we can see, the factors considered tojustify a 1.5:1 ratio are not new but remain similar to those (such as the generally harsh conditions of pre-sentencing custody) that havetraditionally led to courts to grant credit on a ratio of 2:1.[41] [88] That said, while many judges have granted credit of 1.5:1 on the basis of the harsh conditions of pre-sentencing custody,[42]others have refused to do so, particularly when they have not found that the conditions of detention are unusual or when the evidenceconsists of nothing more than allegations.[43] [89] Many judges, whether or not they granted 1.5:1 credit, have remarked on the difficult conditions of detention in Wing C ofBordeaux Prison. [90] For example, in Auger, Westmoreland-Traoré J. wrote the following: [translation] The Court takes into account the difficult conditions of the accused’s detention.

During his detention, he was incarcerated in Wing C ofBordeaux Prison. He was held with 180 detainees. This wing is reserved for the detention of gang members. Attempted murders arefrequent, and detainees are often held in solitary confinement.

The accused testified that there was practically one murder every month,although there has been no independent or professional testimony. … [97] For these reasons, the Court finds that time served in pre-sentencing custody should be considered and calculated on the basis of 1.5days for every 1 day.[44] [91] Conversely, in Lounnas, Lori Renée Weitzman J. found the following: [translation] [75] In this case, it is undeniable that the circumstances of Toufik Lounnas’s detention in Wing C of Bordeaux Prison were less thanideal.

This case does not, however, feature an excessively long period of pre-sentencing custody, extremely deplorable conditions,solitary confinement, or detention in a prison very far from his family – all of these being examples of situations where judges havegranted credit on a 1.5:1 ratio. [76] Mr. Lounnas was incarcerated only after his conviction. The three months he spent in pre-sentencing custody were because of thetime required to prepare a pre-sentence report, followed by a change in counsel, and finally his wish to request a second report preparedby a psychologist.

While these reasons are all entirely acceptable, the pre-sentencing custody is in no way an excessively long period of

detention caused by the State. Taking all of these elements into account, the Court does not find that the circumstances justify enhanced credit. [45] [ 92 ] In all of these cases, the judges exercised the discretion they are conferred under subsection 719(3.1) Cr. C . and toward which appellate courts owe a high degree of deference.

Appellate intervention should be limited to cases where the judge's assessment of the facts is tainted by errors in principle or palpable and overriding errors. [46] [ 93 ] In this case, the judge made no error of principle. [ 94 ] Moreover, the appellant does not argue the complete absence of circumstances justifying the application of enhanced credit, on the contrary.

The appellant recognizes that certain periods of Henrico and Baril's pre-sentencing custody should be credited on a 1.5:1 ratio (a period of three and a half months corresponding to the renovations and a period of three weeks corresponding to an episode of increased violence). In fact, the appellant finds fault with the trial judge's decision to credit the entire period of pre-sentencing custody on a ratio of 1.5:1 because of palpable and overriding errors in her assessment of the facts or the inferences to be drawn therefrom. This is the matter raised in the second issue, which I shall now address.

Second issue: Did the judge commit palpable and overriding errors in her analysis of the evidence and the inferences to be drawn therefrom? [ 95 ] The appellant argues that the judge committed palpable and overriding errors in assessing the facts or in establishing the inferences to be drawn from these facts and that therefore, even in the absence of an error of principle, we should intervene. [ 96 ] The appellant maintains that the vermin infestation was temporary and that the climate of violence was unusual.

The appellant also claims that the judge was exaggerating when she referred to a fourteen-hour-a-day lockdown, since that period includes the ten overnight hours and the housekeeping maintenance periods in the wing. The maintenance also contradicts the judge's statement that the premises were unsanitary. The appellant adds that, while Wing C is admittedly violent, it is no more so than the other prison wings.

Similarly, the situation there with regard to drugs and adulterated alcohol is not unusual, as they are a reality in every prison in Canada. [ 97 ] I do not agree. [ 98 ] The trial judge's findings of fact and the inferences she drew from those facts are supported by the evidence. [ 99 ] The judge heard three witnesses: a detention officer from Wing C and the respondents. [ 100 ] Admittedly, an infestation occurred during the renovation work, but the evidence shows that vermin were present throughout the entire period of their detention.

The vermin invasion or infestation was not necessary to justify finding that Baril and Henrico's living conditions did not respect their human dignity. [ 101 ] A lockdown period of fourteen hours in one day sometimes includes the overnight hours: the judge never claimed the contrary. What struck her was the frequency and unusual duration of the lockdowns that Baril and Henrico experienced.

There was ample evidence for her to make such a finding. [ 102 ] As for the violence, although it did increase during a certain period, the testimonies easily supported the conclusion that the respondents were faced with this reality throughout the entire time they served in pre-sentencing custody. The impact of this violence on Baril and Henrico is not measured solely on the basis of statistical data relating to the moments they witnessed specific incidents or the number of such incidents (i.e., solely on the basis of objective data regarding violent incidents).

Rather, the impact involves a number of subjective elements, including their fear and stress, which were likely to persist even in the absence of repeated incidents.

In this respect, the fact that neither of the respondents had lived in a prison environment before was relevant, and the judge was right to take it into account. [ 103 ] The evidence supports the existence of serious problems with cleanliness and sanitary living conditions in Wing C and Zone B- 00 during Baril and Henrico's pre-sentencing custody. [ 104 ] While it is true that drugs and alcohol are not exclusive to Wing C of Bordeaux Prison, this is only one of the elements the judge considered in finding that the conditions of detention to which Henrico and Baril were subjected did not respect "human dignity".

Omitting this element from the list would have no effect. [ 105 ] In short, the appellant has not successfully met its burden, which is to demonstrate a palpable and overriding error on the part of the judge in her assessment of the evidence and the inferences she drew therefrom. Conclusion [ 106 ] The judge has committed no error giving rise to the Court's intervention. [ 107 ] Accepting the appellant's position would be tantamount to requiring that the conditions of detention be particularly exceptional before enhanced credit could be granted under subsection 719(3.1) Cr. C.

This provision, however, contains no such exceptional requirement: as noted, it is sufficient "if the circumstances justify it". [47] If Parliament had intended for subsection 719(3.1) Cr. C. to apply only in exceptional circumstances, it could have made this clear. [48] It did not do so, however.

[ 108 ] Some of the circumstances considered by the judge occurred only from time to time. This in no way prevents them from being taken into account as part of the pre-sentencing custody period as a whole. A judge exercising her discretion need not find that every day of the pre-sentencing custody constitutes an [ translation ] “extreme day” in order to conclude that the circumstances justify a 1.5:1 ratio. Again, the provision does not support such an

interpretation. [ 109 ] For example, let us consider a situation where, due to a lack of supervision, an accused is violently assaulted on a few occasions while serving time in pre-sentencing custody. Would the sentencing judge be required to limit credit for pre-sentencing custody solely to the days where the assaults were committed, or could the judge grant a credit on a ratio of 1.5:1 for the entire period?

The answer is of course self-evident. [ 110 ] In this case, the appellant admits that certain periods of the pre-sentencing custody were punctuated by increased violence, an infestation of vermin, and long periods of confinement.

In my view, nothing more was needed for the trial judge to grant credit on a ratio of 1.5:1 for the entire period of pre-sentencing custody. [ 111 ] In any event, even ignoring the factors in this case that the appellant characterizes as subjective (the fact that the accused are not used to prison life, their age, and the few visits they received), several other elements revealed by the evidence adduced or the information available in the record justified the judge's exercise of her discretion to grant credit on a ratio of 1.5:1. [ 112 ] An appellate court must show deference to the sentencing judge.

Credit for pre-sentencing custody is merely one factor among many in the determination of a fit sentence. [ 113 ] If judges enjoy a certain discretion in sentencing, this is all the more so when it comes to their analysis of circumstances justifying the granting of credit on a ratio of 1.5:1 for time spent in pre-sentencing custody. In Wust , [49] Arbour J. confirmed the discretionary nature of the power of judges to take pre-sentencing custody into account when sentencing an accused.

Despite the new legislative provisions, judges still enjoy this power, subject to the new parameters established in the provisions. [ 114 ] Because the judge took these new parameters into account as she exercised her discretion, and because she made no error of principle or palpable and overriding error in her assessment of the facts or the inferences to be drawn thereform, I would therefore dismiss the appeal. MARIE ST-PIERRE, J.A.