2013 MBPC 68, 2013 MBPC 68

Cite: 2013 MBPC68 THE PROVINCIAL COURT OF MANITOBA WINNIPEG CENTRE 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 ) Ami Kotler and Mark Kantor, Respondent ) ) ) for the Crown - and – ) ) Gordon William Kovich (Accused)Applicant ) ) ) Karl Gowenlock, for the (Accused)Applicant ) ) Judgment on Motion delivered: ) December 11, 2013 MARY KATE HARVIE, P.J.

Introduction [ 1 ] The accused Gordon Kovich brings a Motion challenging the validity of Criminal Code s. 719(3.1), the provision which prohibits a sentencing judge from giving an accused who has been denied bail “primarily because of a previous conviction” credit for pre-sentence custody (“PSC”) beyond the rate of one day credit for each day spent in PSC (a “1:1” credit). He asserts the provision breaches Canadian Charter of Rights and Freedoms (the “ Charter ”) sections 7 and 11(

e) as it does not allow a judge to award enhanced credit even if circumstances justify it. He submits that the offending provision cannot be saved by s. 1 of the Charter . [ 2 ] Crown counsel argues that the provision is constitutional and that the

section represents a codification of the common law principle that there is no “right” to enhanced credit for offenders who would not otherwise be eligible for early release. He further submits that Charter s. 11(

e) is not engaged as the accused was given a full bail hearing. He argues that the provision is appropriately within the purview of Parliament and does not offend the Charter. History of the Proceedings [ 3 ] On June 12, 2012 the accused was arrested and charged with a number of offences, including 11 counts of break enter and theft with offence dates ranging from December 2010 to June 2012. He was detained in custody and initially did not make a bail application.

On October 16, 2012 the accused was arrested while in custody and charged with a number of further offences including 10 counts of break and enter, all with an offence date of May 12, 2012. On November 30, 2012 the accused applied for judicial interim release (“bail”) with a plan to be released to reside at the Behavioural Health Foundation Residential Treatment Facility. His bail application was denied, primarily based upon his record, and the reason for his detention was recorded pursuant to Criminal Code s. 515(9.1).

[4] On September 11, 2013, the accused entered guilty pleas to 15 counts of break and enter, one count of theft of a motor vehicle,and one count of breach of probation. All other remaining charges were stayed by the Crown. A sentencing date of December 11, 2013has been fixed. As of the date of entering his pleas, the accused had spent approximately 15 ½ months in pre-sentence custody. As of thedate of sentencing he will have been in custody for 18 months. The accused wishes to apply for enhanced credit for the time that he hasspent in PSC but is prohibited from doing so pursuant to Criminal Code s. 719(3.1).

Relevant Legislative Provisions [5] While the challenge brought by the accused relates to a specific aspect of the Criminal Code bail and sentencing provisions, anoverall review of the recently amended sections helps to provide some context to this motion. [6] For the most part, the various legislation which set out eligibility for either parole or statutory release do not take into accountthe time an offender has spent in PSC.

Criminal Code s. 719(1) states that “A sentence commences when it is imposed, except where arelevant enactment otherwise provides.” As the Court lacks the authority to “backdate” sentences (see R. v. McDonald (1998), (ON CA), 40 O.R. (3d) 641 (Ont.CA)), a body of “jurisprudence developed which took that period of time intoconsideration by reducing the term of imprisonment when the circumstances justify such a course of action” (see R. v.

Stonefish, 2012 MBCA 116, 99 C.R. (6th) 41). [7] The coming into force of the Truth in Sentencing Act (SC 2009, c.29) on February 22, 2010 had a significant impact onjudicial discretion in the granting of enhanced credit for pre-sentence custody. Previously, the Criminal Code identified “time incustody” as a factor a sentencing judge “may” take into account. While not automatic, the awarding of credit became common place aspart of the sentencing process.

In order to recognize that most sentenced prisoners were released prior to their “warrant expiry date” andto acknowledge that many prisoners experienced other challenges while on remand, such as over-crowding and a lack of access totreatment and programming, a “rough rule of thumb” for enhanced credit at the rate of two days to one (“2:1 ”) was recognized, adopted,and routinely applied by Courts across the country (see: R. v. R. (P.S.) (1999), (MB CA), 138 Man.R. (2d) 75 (Man.CA); R. v. Lapierre (1998), (QC CA), 123 C.C.C. (3d) 332 (Que CA); R. v. McDonald, supra).

The Role of Time in Custody in a Sentencing Hearing [8] It is important at the outset to clarify the role of PSC in the sentencing process. Describing any credit, or lack thereof, for PSCas an “increase” or “decrease” in an offender’s sentence misidentifies its application. The determination of a fit and appropriate sentencerequires a judge to apply the Criminal Code and common law sentencing provisions to the facts of the offence and the circumstances ofthe offender. Strictly speaking, an offender’s bail status is not an appropriate factor for a judge to consider when determining a fit andproper sentence.

A judge can take into account the post-offence conduct of an accused, whether in or out of custody, and as such canconsider factors such as participation in programming or compliance with a course of treatment or counselling, either while in or out ofcustody. [9] When considering the circumstances of the offender, compliance with stringent bail conditions may be a factor which impactsthe assessment of an appropriate sentence. In R. v. Downes (2006), (ON CA), 205 C.C.C. (3d) 488 (Ont.

CA) a ratioof approximately 3:1 was applied and credit of five months given for the 18 months the offender spent on strict house arrest while onbail. Recognizing that the provisions which governed the granting of enhanced credit for PSC “do not readily apply to time spent on bail,even under stringent conditions”, Rosenberg JA commented that: [29] .....some of the same considerations that justify credit for pre-sentence custody apply to an offender who has spent a long time underhouse arrest.

Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistentwith the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character thanactual incarceration.

Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of aconditional sentence under s. 742.1 of the Criminal Code. [10] Rosenberg JA went on to note that “.....Despite its punitive aspects, the offender receives no credit towards parole eligibility fortime spent on pre-sentence house arrest.” The position adopted in Downes, supra, regarding the role of bail conditions in the sentencingprocess is consistent with that articulated by the Manitoba Court of Appeal in R. v.

Irvine (2008), 2008 MBCA 34 , 231 C.C.C.(3d) 69 (Man.CA): The impact of the bail conditions on an accused person are to be “put into the mix” along with other potential mitigating factors such asthe relative youth of the accused, the lack of a record, prospects for rehabilitation, remorse, family responsibilities and the like.

Unlikethe “credit” to be given – after the fit and appropriate sentence has been determined – for time spent in pre-trial custody, anyconsideration to be given for pre-trial bail occurs at the same time as the sentencing judge considers all of the other mitigating andaggravating factors. (emphasis added) [11] Having determined the appropriate sentence, a judge is obligated to consider whether the accused has served any time in PSC,and if so what credit, if any, is to be afforded that time.

An accused may be in custody at the time of sentencing or, having served aperiod in PSC, may have secured release on bail at some time prior to the sentencing date. While consideration of PSC is an integral partof the sentencing process, any credit granted does not represent a “reduction” in the actual sentence imposed. Rather it is a determinationas to how much further time, if any, an offender must spend in custody, subject to any later determination of eligibility for early release. [12] In R. v.

W. (L.W.), (2000) 2000 SCC 18 , 143 C.C.C. (3d) 129 (SCC) the Supreme Court considered the application ofpre-sentence custody in the context of mandatory minimum sentences. In granting credit for time in custody, the Court commented on thetraditional approach to calculating credit at the rate to 2:1, stating (at paras. 44 and 45): 44 I see no advantage in detracting from the well-entrenched judicial discretion provided in s. 719(3) by endorsing a mechanicalformula for crediting pre-sentencing custody. As we have re-affirmed in this decision, the goal of sentencing is to impose a just and fit

sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence. I adopt thereasoning of Laskin J.A., supra, in Rezaie, supra, at p. 105, where he noted that: . . . provincial appellate courts have rejected a mathematical formula for crediting pre-trial custody, instead insisting that the amount oftime to be credited should be determined on a case by case basis. . . .

Although a fixed multiplier may be unwise, absent justification,sentencing judges should give some credit for time spent in custody before trial (and before sentencing). [Citations omitted.] 45 In the past, many judges have given more or less two months credit for each month spent in pre-sentencingdetention. This is entirely appropriate even though a different ratio could also be applied, for example if the accused has been detainedprior to trial in an institution where he or she has had full access to educational, vocational and rehabilitation programs.

The oftenapplied ratio of 2:1 reflects not only the harshness of the detention due to the absence of programs, which may be more severe in somecases than in others, but reflects also the fact that none of the remission mechanisms contained in the Corrections and ConditionalRelease Act apply to that period of detention. “Dead time” is “real” time.

The credit cannot and need not be determined by a rigidformula and is thus best left to the sentencing judge, who remains in the best position to carefully weigh all the factors which go towardthe determination of the appropriate sentence, including the decision to credit the offender for any time spent in pre-sentencing custody. [13] Practically speaking, Courts of all levels have recognized that some credit for time in PSC acts to ameliorate what mayotherwise be discrepancies between the amounts of time different offenders might actually serve in custodial facilities for the samesentence.

And as the granting of enhanced credit was considered discretionary, a sentencing judge could deviate from the “2:1”calculation and could credit time in custody at a lesser or, in some instances, a greater rate. The calculation “rate” of time in custody wasdiscussed at length by the Manitoba Court of Appeal in R. v. Vermette, 2001 MBCA 64. The accused (and others) had pleaded guilty toconspiracy to traffic cocaine and applied for enhanced credit at a rate greater than “2:1”, pointing to a variety of hardships endured whileon remand.

In denying his application the Court reaffirmed that while the provisions of Criminal Code s. 719.3 were “permissive ratherthan mandatory, it is well-settled law that credit should normally be given for pre-sentence custody unless there is good reason toconclude otherwise (See R. v. Mills (1999), 1999 BCCA 159 , 133 C.C.C. (3d) 451 (BCCA) at para. 60”. The Court adopted therationale of Donald, J.A. in Mills underlying the “typical credit of double time”: Time in custody after sentence counts towards parole eligibility after one-third of the sentence is served and towards statutory releaseafter two-thirds.

Giving credit for double the time in predisposition custody hits the midpoint in a range between earning the equivalentof three days for every day served for parole purposes and one and a half days in the case of statutory release. The Impact of The Truth in Sentencing Act [14] As indicated earlier, the passage of the Truth in Sentencing Act had a significant impact on every aspect of the calculation ofcredit for pre-sentence custody.

A standard calculation of 1:1 credit was established, with a discretionary enhancement limited to the rateof up to 1:1.5 days “if the circumstances justify it.” Pursuant to Criminal Code s. 515(9.1) no enhancement is allowed if an accused isdenied bail primarily because of his criminal record. [15] Not directly related to this application but noteworthy none the less is that an offender who is alleged to have contravened hisbail order and therefore detained in custody is also disentitled to apply for enhanced credit for any time in custody, even if the allegedcontravention cannot be proven at a later date. [16] Criminal Code s. 719 now states:

(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.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unlessthe reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custodyunder subsection 524(4) or (8). [17] Criminal Code

section 515 now states:

(9.1) Despite subsection (9), if the justice orders that the accused be detained in custody primarily because of a previous conviction ofthe accused, the justice shall state that reason, in writing, in the record. [18] Defence counsel specifically did not challenge the provision which limits credit for time in custody to 1:1, arguing that such alimitation was appropriately within Parliament’s authority. He did qualify his position, relying on R. v.

Johnson (2011), 2011 ONCJ 77, 268 C.C.C. (3d) 423 (Ont CJ) at para. 15, suggesting that the provisions would be unconstitutional without the discretionafforded to the sentencing judge to grant an increased enhancement up to 1.5:1 days. Does Criminal Code Section 719(3.1) Violate Charter

Section 11(e)? [19] In his Notice of Motion, defence counsel asserts that Criminal Code s. 719(3.1) offends Charter sec 11(e) “in that itcreates a coercive environment which serves to discourage accused persons from exercising their Charter right to seek reasonable bail by

disallowing a sentencing consideration which would otherwise be available had the accused person not made a bail application.” [20] Charter s.11(

e) states that: 11. Any person charged with an offence has the right . . .(

e) not to be denied reasonable bail without just cause; [21] The test to be applied where a Charter s. 11 breach is alleged is to determine whether the impugned legislation has the effect ofcreating a barrier between the accused and his ability to secure release on reasonable conditions, and if so, whether it does so with “justcause”. [22] Defence counsel acknowledges that his client had an opportunity to apply for bail, was given a bail hearing and his applicationwas denied. His concern is not about the process, but about the impact of Criminal Code s. 719(3.1) which was invoked by a judgewhen his client’s application for bail was denied. He asserts that fundamental to the Charter s. 11(

e) right to bail is the right to makethat application without “coercion” and without risk that the denial of that application will result in “a greater punishment” beingimposed.

He argues that an accused should not be actually or potentially dissuaded from bringing a bail application because of a risk thata judge’s order may preclude him at a later date from asking for an enhancement for his pre-trial detention. [23] Defence counsel submits that Criminal Code s. 719(3.1) creates a duty for defence counsel to advise a client with a criminalrecord of the “risk” that if his application for judicial interim release is denied primarily because of a previous conviction, the offenderwill be precluded from later date applying for an enhanced credit for time in custody.

Defence counsel argues that this represents a formof legislative “coercion” which infringes on an accused’s constitutional right to bail. [24] Relying upon the logic in R. v. Jevons 2008, CarswellOnt 6598, 2008 ONCJ 559, defence counsel submits that the rightsafforded to an accused under Charter s. 11(

e) includes more than simply the right to apply for judicial interim release. In Jevons, theCourt ordered a judicial stay of proceedings on a variety of domestic violence charges against a 59 year old accused with no previouscriminal record who was held in custody without bail for seven days solely because of limited court resources. Crown counsel in thatcase had argued that the language of Charter s. 11(

e) did not suggest the right to a bail hearing within a constitutionally mandatedtimeline, and that “reasonable bail” referenced the conditions of bail and not the timing of the hearing. In rejecting the Crown’ssubmission, the Court noted that (at para. 33): ...there is nothing in the plain wording of the

section that restricts it to the terms of bail. Moreover, such an

interpretation would lead tothe absurd result that a person to have a bail hearing for weeks or months and is eventually released on favourable terms has been treatedreasonably and with just cause.” [25] The Court took guidance from the comments of the Supreme Court of Canada in R. v. Morales (1992), (SCC), 77 C.C.C. (3rd) 91, where it was stated that the bail system is intended to be “liberal and enlightened”, and from R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 where the Supreme Court noted that “Liberty lost is never regained and can never fully be compensatedfor.

We as a free and democratic society must place the highest emphasis on ensuring that our system of justice minimizes the chance ofan unwarranted denial of liberty.” The Court in Jevons, supra found that the defendant’s Charter s.7 and 11(

e) rights were violated. [26] Crown counsel submits that Criminal Code s. 719(3.1) has no impact whatsoever on this accused’s right to bail on reasonableterms. As the

section does not address the timing, terms or conditions upon which bail should be granted Crown counsel argues that ithas no impact or effect on the bail process and as such Charter s. 11(

e) is not engaged. He points out that this accused applied for bailand was given a full and fair hearing, demonstrating that the “coercion” complained of simply did not exist for this accused. [27] The scope of Charter s. 11(

e) was discussed in R. v. Pearson, (SCC), [1992] 3 S.C.R. 665, with the SupremeCourt addressing issues of bail as it related to the “reverse onus provisions connected with trafficking offences under the NarcoticControl Act”. Lamer J. made the following comments about the scope of the rights contained within Charter s. 11(e) (at paragraphs 47and 48):

Section 11(

e) guarantees the right of any person charged with an offence ...not to be denied reasonable bail without just cause." In myopinion, s. 11(

e) contains two distinct elements, namely the right to "reasonable bail" and the right not to be denied bail without "justcause". The French version of s. 11(

e) makes this distinction clearer than does the English version. . . . "Reasonable bail" refers to the terms of bail. Thus the quantum of bail and the restrictions imposed on the accused's liberty while on bailmust be "reasonable". "Just cause" refers to the right to obtain bail. Thus bail must not be denied unless there is "just cause" to do so. The"just cause" aspect of s. 11(

e) imposes constitutional standards on the grounds under which bail is granted or denied. [28] It is clear from the facts of this case that the accused was given an opportunity to apply for bail and his application was denied. To that extent, the “just cause” requirements as articulated in Charter s. 11(

e) were met. Unlike the circumstances in Jevons, supra,where delay in access to a bail hearing represented a significant barrier for the accused in securing his release, no such concerns wereraised by this accused. The fact that his bail application was denied means that there is no basis to assert that any “terms of bail" wereunreasonable. Indeed, the decision to deny release to this accused appears to have been well founded, considering the nature and extentof his criminal record, which was filed as an exhibit in this motion.

I note as well that the accused did not apply for a bail review at anytime after his initial application was denied. [29] I agree with crown counsel that there is no evidence to suggest that the Criminal Code provisions complained of had an impacton this accused’s decision to apply for bail. Even accepting that competent defence counsel would have to advise a client about the

implications of Criminal Code s.719(3.1) prior to making a bail application, that requirement does not in and of itself trigger a Charter s.11(

e) breach. [30] While I am not satisfied that these provisions offend Charter s. 11(

e) on a stand-alone basis, both counsel acknowledge thatthere is an overlap between the bail provisions and their potential impact on the sentencing proceedings. To that end, defence counsel’sargument that the practical application of Criminal Code s. 515(9.1) and s. 719(3.1) results in a “greater punishment” for the accusedand is in my view more appropriately addressed when considering any purported violations of Charter s. 7. Does Criminal Code Section 719(3.1) Violate Charter

Section 7? [31] Defence counsel argues that Criminal Code s. 719(3.1) impacts on the liberty of the accused in a manner which is contrary tothe principles of fundamental justice.

Charter s. 7 makes a broad statement of legal rights as follows: 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. [32] Crown counsel acknowledges that the Criminal Code sections at issue engage an offender’s liberty interests within the meaningof Charter s. 7, but submits that it does so in a manner which does not violate the principles of fundamental justice. [33] Both counsel agree that the argument raised by the accused under Charter s. 7 invokes the same test as a s. 12 Charterchallenge, the appropriate Constitutional standard being whether the impugned legislation creates a circumstance of “grossdisproportionality” between offenders (per McLaughlin J. in R. v.

Malmo-Levine (2003), SCC 74 cited with approval in R. v. Johnson,2011 CarswellONT 1136, 2011 ONCJ 27. As further articulated by McLachlin CJ in R. v.

Hall, 2002 SCC 64 , [2002] 3 S.C.R.309 at para. 41, the test is that of "a reasonable person ... properly informed about the philosophy of the legislative provisions, Chartervalues and the actual circumstances of the case". [34] While relying on the same issues presented respecting Charter s. 11(e), defence counsel argues that Criminal Code s. 719(3.1)fundamentally violates principles of justice for reasons which require an examination of the relationship between the bail and sentencinghearings. [35] Defence counsel first argues that the

section mandates a sentencing judge to consider whether and why accused was deniedbail. Secondly, counsel submits that the application of Criminal Code s. 719(3.1) has the potential to create serious discrepanciesbetween offenders depending on their bail status, and thereby offending the sentencing principles of parity and proportionality. [36] Crown counsel argues that the focus of the legislation is not on whether an offender has been denied bail, but on why theoffender has been denied bail.

Because the legislation is only engaged by those offenders who have their release denied primarilybecause of their criminal record, he submits that this narrow application allows the legislation to withstand scrutiny. [37] Crown counsel further argues that Criminal Code s. 515(9.1) is simply a codification of the principle that a judge could declineto award enhanced credit for pre-sentence custody if an offender was otherwise unlikely to have received early release.

He submits thatthe specific subset of offenders who have their bail denied primarily because of their record would not be entitled to an enhanced creditfor their time in custody in any event. He takes issue with the suggestion that it creates a discrepancy between offenders depending upontheir bail status. Distinguishing Between Bail and Sentencing Hearings [38] Given that Criminal Code s. 719(3.1) contemplates that the finding of a judge at a bail hearing could bind a judge at the time ofsentencing, it is helpful to consider the different nature of the two hearings.

Judicial interim release (“bail”) hearings are governed byCriminal Code s. 515 as implemented by the practices adopted in various jurisdictions. At a bail hearing, an accused faces unprovenallegations which, in Manitoba, are usually put before the Court by Crown counsel reading portions of the police report into the record. The rules of evidence are significantly different, with the Court receiving hearsay and other contested evidence, such as confessions orevidence obtained incidental to a search. An accused may face a greater number of charges than are ultimately admitted or proven.

Theonus for release will shift between defence and Crown counsel, depending on the nature of the offence or whether the accused is subjectto another form of release. [39] Because a bail hearing focuses more on the management of the accused while awaiting disposition of the charges, the criminalrecord of an offender plays a very specific role, and is considered in determining whether the accused will attend future court hearings(the “primary ground”) or is a risk to the community by way of re-involvement in other criminal activity (the “secondary” ground).

Thedetention of an accused may also be ordered in those rare instances when it is considered necessary “to maintain confidence in theadministration of justice” (the “tertiary” ground). When considering the tertiary ground, a judge must take into account “all of thecircumstances” including, presumably, the record of the offender.

However, this ground places considerable emphasis on thecircumstances of the offence. [40] At a sentencing hearing, where the rules of evidence are more stringent, an accused only faces those facts which he is preparedto admit, and the onus for proving those facts beyond a reasonable doubt rests with the Crown. There are a number of procedural andevidentiary protections in place which do not exist for a bail hearing. At a sentencing hearing, the criminal record plays a significantlydifferent role.

While an accused is not to be sentenced “on his record”, the record is taken into account in terms of assessing thecharacter of the accused and his history for involvement in related or unrelated criminal activity. It is also considered when assessing theCriminal Code s. 718- 718.2 sentencing provisions, including specific and general deterrence, denunciation and rehabilitation. Detention “primarily because of a previous conviction”

[41] Criminal Code s. 515(9.1) requires a judge who denies an offender’s release “primarily because of a previous conviction of anaccused” to state the reasons and note them in writing. In Manitoba, the notation in writing takes the form of an entry on the “BailHearing Form” by the attending clerk. In the case of this accused, the form contains the following notation: “Acc detained in custodyprimarily because of his criminal record sec 515 9.1” [42] Defence counsel submits that consideration of an offender’s bail status can and should have no impact on the sentenceimposed. In R. v.

Summers, [2013] Carswell ON 2626, 2013 ONCA 147 (Ont.CA) Cronk JA discussed the circumstances under whichenhanced credit could be granted to an offender, making this observation (at para. 103): . . . As the CLAO points out, whether an accused has been granted bail or held in custody pending trial is not a proper consideration onsentencing.

While the relevant considerations on a bail hearing are in some respects similar to those applicable at a sentence hearing (e.g.the existence of a prior criminal record or community support mechanisms), the test for bail and the determination of a fit sentence areconceptually and functionally different. [43] Crown counsel takes issue with this characterization, arguing that the legislation is only engaged by what he describes as anarrow sub-set of offenders who have accumulated a criminal record that is sufficiently lengthy, related and/or serious that it forms theprimary basis for their detention in custody.

Crown counsel emphasizes this narrow application, and argues that the legislation thereforewithstands scrutiny. [44] There are a number of concerns related to this provision and the interplay between the bail and sentencing hearings. First, it isfar from clear that the application of this provision is as narrow as is suggested by Crown counsel.

It is interesting to note that thesection in question references a “previous conviction” in the singular tense as a potential basis for a denial of a bail application.Therefore an offender with a limited criminal record who is denied release because of a previous conviction, regardless of the nature ofthat conviction, will be later precluded from applying for enhanced PSC, however meritorious. No statistics or other information wasprovided by the Crown as to the breadth of the application of this section.

Given its wording it cannot be assumed that it is applied in afashion as narrowly suggested by the Crown. [45] It is also troubling that the

section does not distinguish between the primary, secondary or tertiary grounds of release as definedin Criminal Code s. 515. Therefore an accused with a criminal record including offences such as failing to appear in court may be deniedbail due to primarily ground concerns. Such an offender, who lacks access to a surety or other financial supports which may convince ajudge to agree to his release, will also be precluded from later applying for an enhancement respecting time in custody, regardless ofmerit.

For such an offender, or indeed any offender who has their bail denied as a result of a previous conviction, their criminal recordbecomes a form of double jeopardy. [46] In R. v. Vittrekwa, 2011 Carswell Yukon 81, 2011 YKTC 64, the Court considered an offender’s application for enhancedcredit for time in PSC.

In discussing the inevitable delays in court proceedings as it relates to time in custody and earned remission, theCourt commented on the need to promote fairness within the system (at para. 65): It would be contrary to the principles of justice to create a legal environment with a coercive atmosphere where, because of the prospectof spending more time in custody due to a potential loss of remission, an accused does not avail him-or herself of his or her legal rights.

This coercive effect would, in all likelihood, disproportionately impact those who are already the most disadvantaged in Canadiansociety, being those who are least likely to have the resources, both socially and economically, to obtain judicial interim release. (emphasis added) [47] Crown counsel argues that Criminal Code s. 515(9.1) is simply a codification of the principle that a judge could decline toaward enhanced credit for pre-sentence custody if an offender was otherwise unlikely to have received early release, citing the followingcomments from Vermette at para. 66: 66 There have been many cases where credit for pre-sentencing custody has been denied or given on a ratio less than 2:1.

Forexample, where the offenders did in fact receive a full range of educational, vocational or rehabilitation programs, less than double timecredit was given. (See R. v. Schoenhalz (1999), 1999 BCCA 77 , 121 B.C.A.C. 138 and R. v. Brownlie, [1997] B.C.J.

No. 1972(Q.L.) (S.C.) at para. 37.) Alternatively, where the previous incarceration history suggests that the accused person would be unlikely toobtain early release, the individual was in custody because he repeatedly breached the conditions of his release or the accused is seen topose a serious danger to society, courts have either departed from the standard 2:1 ratio or denied credit for pre-sentencing custodyaltogether: R. v. Mills at para. 48; R. v. Warren (ON CA), (1999), 127 O.A.C. 193; and R. v.

M. (C .A.), (SCC), [1996] 1 S.C.R. 500 at paras. 95-96. [48] The general principles at play when considering credit for time PSC, and in particular the role of an offender’s criminal recordwere reiterated in R. v. Stonefish, supra. Steele JA acknowledged that an offender’s criminal record was a factor, amongst many others,to be considered when assessing an offender’s likelihood of obtaining early release: 102 The Crown argues that this accused was caught trafficking for a third time while being a fugitive and was also chargedwith yet another trafficking offence.

It is submitted that his gang membership and long history of criminal conduct made rehabilitationunlikely, and denunciation and deterrence were the overriding sentencing considerations in this case. 103 While the above factors are certainly relevant to the determination of sentence, they are not relevant to the question ofPSC credit. PSC credit is not related to the gravity of the offence or the moral blameworthiness of the offender. At sentencing, theCrown put all of the aggravating factors before the court and requested a total sentence of 24 months.

The sentencing judge took all ofthe factors into consideration, including deterrence and denunciation, and imposed an effective sentence of 24 months as requested bythe Crown. The determination of credit for PSC is based on other factors related to the circumstances surrounding the accused’s remandtime as well as his conduct during that period of time, although I acknowledge that one’s criminal record may have some impact on the

likelihood of parole. (emphasis added) [49] Given the many factors which are taken into account to assess eligibility for early remission and, by extension, eligibility forenhanced PSC credit, it is difficult to accept as logical that an accused whose bail is denied because of a previous conviction should beprecluded from even applying for an enhanced time in custody credit. While on the one hand it is understandable that enhanced credit forPSC ought not be extended to an offender who is not deserving of the benefit, it is difficult to understand how the blanket approach takenby Criminal Code s. 719(3.1) addresses this issue. Undermining any suggestion that this

section eliminates enhanced PSC creditfor those not deserving of it is the fact that an offender can avoid any prohibition by simply declining to apply for bail. [50] Further, both a bail hearing and a sentencing hearing mandate a judge to take into account factors which are considerablydifferent than those assessed during an early remission hearing. By the implementation of Criminal Code s. 719(3.1) and s. 515(9.1) thebail judge effectively ties the hand of a sentencing judge, preventing any consideration of the offender’s circumstance while in custody. [51] With respect, the position taken by Crown counsel that the

section represents a codification of the common law represents toonarrow an

interpretation of Vermette, supra and Stonefish, supra. While these authorities recognize that enhanced PSC credit may not begranted in part because of an offender’s record , they do not suggest that an offender should be precluded from applying. A combinedreading of s. 515(9.1) and s. 719(3.1) has exactly that affect, effectively ruling on a matter before an offender has had an opportunity topresent evidence and before the Judge has been given a chance to consider it.

The Impact on Parity and Proportionality [52] Of further concern is the impact of these sections on the twin sentencing principles of proportionality and parity of sentences,both of which are fundamental to the sentencing process and whose importance cannot be understated. As noted in R. v. Arcand 2010ABCA 363: In deciding on a fit sentence that meets the proportionality principle, the other principles set forth in s. 718.2 also form part of thatanalysis. The parity principle in s. 718.2(

b) impacts squarely on the degree of responsibility of the offender generally prescribing, as itdoes, that a sentence should be similar to those imposed on similar offenders for similar offences committed in similar circumstances. More fundamentally, as noted, parity constitutes an indispensable element of the proportionality principle.[xc] Therefore, to diminish orignore the importance of parity in sentencing is to effectively undercut the proportionality principle mandated by Parliament. [53] The fundamental importance of proportionality was emphasized by the Court in R. v.

Ipeelee, 2012 SCC 13 , [2012]1S.C.R. 433 (SCC) (at para. 36 and following) The Criminal Code goes on to list a number of principles to guide sentencing judges. The fundamental principle of sentencing is that thesentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. As this Court haspreviously indicated, this principle was not borne out of the 1996 amendments to the Code but, instead, has long been a central tenet ofthe sentencing process (see, e.g., R. v. Wilmott (1966), (ON CA), 58 D.L.R. (2d) 33 (Ont. C.A.), and, more recently, R.v.

Solowan, 2008 SCC 62 , 2008 SCC 62, [2008] 3 S.C.R. 309, at para. 12, and R. v. Nasogaluak, 2010 SCC 6 , 2010SCC 6, [2010] 1 S.C.R. 206, at paras. 40-42). It also has a constitutional dimension, in that s. 12 of the Canadian Charter of Rights andFreedoms forbids the imposition of a grossly disproportionate sentence that would outrage society’s standards of decency. In a similarvein, proportionality in sentencing could aptly be described as a principle of fundamental justice under s. 7 of the Charter....

The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — themaintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality.

Proportionality is the sine qua non of a just sanction. [54] While an assessment of any credit for time in PSC is distinct from the actual determination of a fit and appropriate sentence, it isan important factor to be determined during a sentencing hearing. As such, there is a compelling argument to be made that the sentencingprinciples of proportionality and parity have a role to play in assessing an application for enhanced PSC credit.

An accused who isprecluded by application of Criminal Code s. 719(3.1) from even applying for an enhancement may see his time in PSC assesseddifferently than an accused who chose not to make a bail application. While the latter offender must still justify his request for anyenhancement, that offender still maintains the right to establish that “circumstances justify” his request, while the former offender isprohibited by statute. The prospect of parity between two offenders is jeopardized, if not completely lost.

The Impact on Gladue Factors [55] I would add to the issues raised by defence counsel a concern about the impact of these provisions on any “Gladue” factors anaccused may wish to address when applying for enhanced credit for time PSC. In the seminal case of R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 (SCC), the Supreme Court commented (at para. 59) on the “serious problem of aboriginal overrepresentationin Canadian prisons” and gave Courts clear direction to consider alternatives to custody to aboriginal offenders.

Amendments to theCriminal Code mandate judges to pay “particular attention to the circumstances of aboriginal offenders”. The concerns of the Court werereiterated in Ipeelee, supra The interaction between ss. 718.2(

e) and 718.2(b) — the parity principle — merits specific attention.

Section 718.2(

b) states that “asentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.Similarity, however, is sometimes an elusory concept. As Professor Brodeur describes (“On the Sentencing of Aboriginal Offenders: AReaction to Stenning and Roberts” (2002), 65 Sask. L. Rev. 45, at p. 49): “. . . high unemployment” has a different meaning in the context of an Aboriginal reservation where there are simply no jobopportunities and in an urban context where the White majority exclude Blacks from segments of the labour-market; “substance abuse”

is not the same when it refers to young men smoking crack cocaine and to kids committing suicide by sniffing gasoline; “loneliness” isnot experienced in a similar way in bush reservations and urban ghettoes. [79] In practice, similarity is a matter of degree. No two offenders will come before the courts with the same backgroundand experiences, having committed the same crime in the exact same circumstances.

Section 718.2(

b) simply requires that any disparitybetween sanctions for different offenders be justified. To the extent that Gladue will lead to different sanctions for Aboriginal offenders,those sanctions will be justified based on their unique circumstances — circumstances which are rationally related to the sentencingprocess. Courts must ensure that a formalistic approach to parity in sentencing does not undermine the remedial purpose of s. 718.2(e).As Professor Quigley cautions, at p. 286: Uniformity hides inequity, impedes innovation and locks the system into its mindset of jail.

It also prevents us from re-evaluating the value of our aims of sentencing and their efficacy. It is true that on the surface imposing the same penalty for the nearly identical offence is only fair. That might be closer tothe truth in a society that is more equitable, more homogenous and more cohesive than ours. But in an ethnically and culturally diversesociety, there is a differential impact from the same treatment. Indeed, that has been recognized in the jurisprudence on equality rightsunder the Charter.

Thus, there is a constitutional imperative to avoiding excessive concern about sentence disparity. [56] In Johnson, supra, Green J spent considerable time reviewing evidence related to the over-representation of Aboriginal peoplein the Canadian criminal justice system in general, and more specifically in the remand population: Further, as reported by the Juristat division of Statistics Canada in December 2008 (“The Changing Profile of Adults in Custody,2006/07”), “[o]ver the 2001/2002 to 2006/2007 period, data from nine [provincial and territorial] jurisdictions indicate that growth in thenumber of Aboriginal adults admitted to remand [an increase of 23%] outpaced the overall growth in admissions to remand [an increaseof 14%]”.

Further still, as Howard Sapers, the federal Correctional Investigator, advised the House of Commons Standing Committee onJustice and Human Rights, May 25, 2009, at pp. 7-8, in the course of its hearings into Bill C-25: Research suggests that aboriginal people in pre-sentence custody are more likely to be denied bail and more likely to be held in highersecurity conditions and serve longer periods of time in remand. (emphasis added) [57] In Vittrekwa, supra, Cozens CJ adopted the concerns expressed by the Court in Johnson, supra, about the challenges faced bymany in the criminal justice system in securing release on bail: As Green J. pointed out, individuals often consent to their detention because they lack the stable social connections that would allowthem to attain bail.

These people are often the poor, marginalized, homeless and mentally distressed, and the Crown’s urgedinterpretation effectively penalizes them more severely for these disadvantages (Johnson, para. 20). As well, factors like attenuatedsocial connections, unemployment and addictions disproportionately characterize the aboriginal community, and such a presumptionflies in the face of the philosophy and reasoning in R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688. [58] It is very troubling to consider that the application of Criminal Code s. 719(3.1) may, on a practical level, be contributingto the very problem that Parliament and the Supreme Court of Canada have been urging judges to address by precluding judges fromrecognizing and taking into account the type of systemic problems which have contributed to the over-representation of Aboriginalpeople in the justice system.

Disparity between Offenders [59] All of the forgoing is to be taken into consideration when assessing defence counsel argument that the provisions have theeffect of discriminating between offenders who have been granted bail and those who are detained in PSC. It is trite to say that similaroffenders with similar criminal records, having committed similar offences should receive similar sentences.

Assuming a custodialsentence is part of the disposition, the impact may be significantly different for three categories of offenders; the offender who has beenable to secure release on bail, the offender who is bail denied because of a previous conviction, or the offender who has chosen not tomake a bail application. The offender who serves the entire period of custody on a post-sentence basis will be eligible to apply for earlyremission, with the eligibility calculations based on the entire sentence.

Indeed, earned remission is a reality of the present correctionalsystem, and historically represented part of the rationale behind the granting of time in custody credit at the rate of 2:1, applied by Courtsacross the Country and described the Supreme Court of Canada as being a practice which was “entirely appropriate”: see R. v. W. (L.W.), supra. [60] An offender who is denied bail because of his record will be eligible for early remission only based on that time served on apost-sentence basis, receiving credit for pre-sentence time in custody on a 1:1 basis.

This is different again from the offender who haschosen not to make a bail application, and who therefore can apply for an enhancement of his time in PSC at a rate up to 1.5: 1. Whilestill having to justify his application, the offender who is eligible to apply for enhanced PSC has a greater chance of parity with theoffender who serves the entire period of custody on a post-sentence basis.

Defence counsel’s characterization that this represents a“greater punishment” is not accurate insofar as he suggests that this offender receives a “longer” sentence, but it certainly does means thatthe bail denied offender may spend a greater period of time in a custodial setting. [61] Crown counsel argues that similar offenders would likely be treated the same at each stage of the proceedings, and that if onewere denied bail, in all likelihood both would be detained in custody.

This submission fails to take into account the variety of factorswhich a judge must assess in a bail hearing, including supports in the community. It cannot be assumed that similar offenders withsimilar records will automatically be subject to the same outcome at a bail hearing. It further fails to address the disparity between theoffender whose bail is denied and the offender who has chosen to forgo making an application. “If Circumstances justify it”

[62] The provisions of Criminal Code s. 719(3.1) allow a sentencing judge to grant enhanced credit “if circumstances justify it”.While there is no consensus as to what is encompassed by the phrase, the Court in Stonefish, supra, (at para. 44) reviewed the authoritieswhich addressed the circumstances which might justify an enhanced PSC credit.

These include conditions in remand facilities such aslack of programming or counselling available on remand; the number of lockdowns the offender experiences while on remand; the timespent by the offender in solitary confinement; harsh circumstances while in remand such as over-crowding, double booking, exposure toviolence; delays caused by the court process; the need to obtain pre-sentence reports, Gladue reports or other materials; multiple courtappearances for purposes of sentencing; conduct of the Crown; and loss of earned remission. [63] The Court also considered circumstances which might result in denying enhanced PSC credit such as intentional delays causedby the offender, an offender’s history of breach and court orders, or other acts to deliberately manipulate the system. (See Stonefish,supra para. 45). [64] What is troublesome when the foregoing list is considered is that many of the factors to be considered in determining whetheror not “circumstances justify” providing an offender with enhanced PSC credit would exist at the time of the bail hearing.

Even ifavailable, a bail denial based on a previous conviction would effectively negate their consideration at the time of sentencing. [65] Crown counsel submits that an offender has access to a “fulsome bail review” process. While in some limited circumstances anaccused may be able to demonstrate to a bail review judge that his conduct while in the institution is such that his bail can now beconsidered, that fails to take into account that period of time between the initial bail denial and his review.

Further, this fails to addressthe fundamental problem with failing to allow an offender to apply for enhanced PSC credit for his entire period of time in custodydespite the fact that it may well be justified. Is the Impact of the legislation “grossly disproportionate”? [66] R. v. Malmo-Levine (2003), S.C.C. 74 cited with approval in R. v. Johnson, 2011 Carswell ONT 1136, 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).

The idealized Canadian typically recruited for such Charter exercises is "areasonable man, dispassionate and fully apprised of the circumstances of the case" ( R. v. Collins , (SCC), [1987] 1S.C.R. 265, at para. 52) or, as said in R. v. Hall , 2002 SCC 64 , [2002] 3 S.C.R. 309 at para. 41, "a reasonable person ...properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case". [67] There is no question that the test set out is a stringent one.

When assessing whether the test has been met, it is important toremember that the application of this provision legislatively fetters the discretion of the sentencing judge, and that an offender cannotseek redress through the appeal process. Normally, an unfit sentence which can be reversed on appeal does not attract Charter relief: seeR. v. Malmo-Levine, supra, at para. 167. [68] An assessment of gross disproportionality requires an assessment of the effect of the legislation. In R. v.

Smith, (SCC), [1987] 1 S.C.R. 1045, Lamer J made the following observation: One must also measure the effect of the sentence actually imposed. If it is grossly disproportionate to what would have been appropriate,then it infringes s. 12. The effect of the sentence is often a composite of many factors and is not limited to the quantum or duration of thesentence but includes its nature and the conditions under which it is applied. Sometimes by its length alone or by its very nature will thesentence be grossly disproportionate to the purpose sought.

Sometimes it will be the result of the combination of factors which, whenconsidered in isolation, would not in and of themselves amount to gross disproportionality. [69] In Johnson, supra, Green J discussed the test of gross disproportionality in relation to Criminal Code s. 719 (3) and s. 719(3.1),commenting on the “effect” of the legislation: The application before me is somewhat different in that it does not directly target either a penalty-defining provision or an individualsentence.

Rather, the Applicant’s argument rests on his claim that the effect of the credit ceilings imposed by sub-ss. 719(3) and (3.1) isto create sentencing differentials that constitutionally offend the doctrine of parity sheltered under the “fundamental principle” ofproportionality in sentencing.

In other words, no matter how liberally a sentencing judge exercises his or her discretion to award creditfor pre-sentence custody, the caps imposed by the impugned provisions inevitably result in grossly disproportionate sentences whencompared to other offenders who are identically situated but for their having been granted interim release prior to their sentencing. [70] The “effect” of these provisions on this offender has the potential to be very significant. Does the disparity created by thislegislation between offenders depending on their bail status create a situation of gross disproportionality?

Having spent 18 months incustody, a successful application for enhanced credit for PSC at the rate of 1.5:1 would mean that this accused could receive credit fortime in PSC of a further nine months, for a total of 27 months.

In my view, the potential differential of nine months which is created byapplication of this statute does represent a circumstance of gross disproportionality and is one which would offend the “reasonableperson...properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case”.The potential differential is even greater when the accused is compared to a like-offender who is able to secure release on bail, serves allof his time on a post-sentence basis, and who therefore has full access to the early remission provisions.

It is noteworthy as well thatgiven the mandatory nature of the legislation, the accused cannot seek redress from an Appellate Court. [71] No evidence has yet been adduced about this offender and his application for enhanced credit for time PSC. It may very well bethat, given the opportunity, his application for enhanced credit is unsuccessful. That is to be determined at a later date.

The Charter

Section 1 Considerations [ 72 ] Crown counsel concedes that should the Court find that if the application of the impugned sections represents a breach of Charter s. 7 , that the provision could not be saved by Charter s. 1 . Given the position taken by Crown counsel it will not be necessary to address this provision further. Conclusion [ 73 ] The accused asserts that Criminal Code s. 719(3.1) infringes s. 11 (

e) and s. 7 of the Charter . Given that the accused was given access to a full bail hearing, and for the reasons set out, I am not satisfied that a breach of his Charter s. 11(

e) rights has been established. [ 74 ] I am satisfied that the

section does infringe the accused’s Charter s. 7 rights. In

summary, the denial of an accused bail “primarily because of a previous conviction” impacts directly on the discretion afforded a sentencing judge when considering an application for enhanced credit for time spent in custody. The principles of sentencing are well recognized and do not include a consideration of an offender’s bail status.

The practical application of this provision means an offender’s criminal record acts as a form of double jeopardy, and precludes an appropriate assessment of PSC. [ 75 ] Absent the application of Criminal Code s. 719 (3.1) an accused can apply for an enhancement of PSC beyond the legislated maximum of 1:1 credit “if circumstances justify it.” A variety of factors are weighed by the sentencing judge when considering an application for enhanced PSC credit.

By denying an accused the right to apply for enhanced PSC only because an offender’s criminal record resulted in his bail being denied has the potential to create a circumstance of gross disproportionality between offenders. A sentencing judge is barred from considering evidence of any of the multitude of factors which may otherwise have been adduced as part of an application for enhanced credit PSC. [ 76 ] The

section has the potential of interfering with the sentencing principles of parity and proportionality, “the sine qua non of a just sanction”.

It creates a concerning level of interference with a Court’s ability to properly consider and apply “Gladue” factors to Aboriginal people whose over-representation in the criminal justice system requires a more open and creative response, rather than a restricted and formulistic one. [ 77 ] Criminal Code s. 719(3.1) creates a disparity between the way in which those offenders who have been denied bail because of their record and those who have been granted release or who have forfeited the right to apply for bail.

This disparity can result in the bail denied offender spending significantly more time in a custodial setting. As such these provisions are engaged and offend the offender’s liberty interests within the meaning of Charter s. 7 . I am satisfied that the

section creates a circumstance of gross disproportionality between offenders and does so in a manner which is not in accordance with the principles of fundamental justice. [ 78 ] For all of the forgoing reasons I grant the applicant’s motion. Criminal Code s. 719(3.1) will not be applied to the accused as part of the sentencing hearing. Mary Kate Harvie, P.J.