R. v. J.B. Date:, 2011 BCPC 158

Citation: R. v. J.B. Date: 20110405 2011 BCPC 0158 File No: 55762-C-2 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.B. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. C. CHALLENGER Counsel for the Crown: Ron Edwards Counsel for the Defendant: Claire Hatcher Place of Hearing: North Vancouver, B.C. Date of Hearing: April 5, 2011 Date of Judgment: April 5, 2011 [ 1 ] On March 23 rd, 2011, I gave reasons for sentence in the matter of J.B. At that time further argument was made by the offender asking the Court to grant him 1 to 1.5 credit for time served rather than 1 for 1 time.

These are my reasons with respect to that issue. [ 2 ] For the sake of clarity I will set out a brief review of the circumstances. Mr. B. pleaded guilty to the robbery of a jewelry store which occurred on October 14 th 2010, at Capilano Mall. The robbery occurred at 10:25 a.m. The mall was open and many people were there working and shopping including children and staff from a daycare operated in the mall. Mr. B. along with an older male, alleged to be the mastermind, two other youthful adults and one youth participated in the robbery. One remained in a get away car while the other four entered the mall.

The four men entered the store of a sudden and leapt over the jewelry cases. The two female staff retreated to the back of the store. They were not menaced or touched. Only the older male had his lower face covered. That male and Mr. B. were carrying what are believed to be large screwdrivers which they used to break open the backs of the jewelry cases. The other two followed them scooping up what jewelry they could and placing it in bags. [ 3 ] One of the perpetrators was apprehended as he left the store. Mr. B. was chased into a nearby store where he brandished, but did not discharge, pepper spray.

He then ran out of the mall discharging the pepper spray as he went. The three then got into the get away car and fled the scene. $62,300.00 in merchandise was recovered from a bag at the scene however over $200,000 worth of jewelry was never recovered. [ 4 ] Mr. B. was apprehended on October 15 th 2010, and has remained in custody since. He was granted bail but was unable to perfect a substantial surety required for his release. Mr. B. was on probation at the time of this offence relating to an assault committed as a youth. That probation was imposed only one month before the robbery occurred.

That is the extent of his criminal history. He had never spent any time in custody prior to his arrest on this matter. [ 5 ] I imposed a sentence of 14 months. He has now been in custody for just over five and one half months. [ 6 ] The issue of credit for pre-trial custody has recently been addressed by legislation through an amendment to s. 719 which now provides:

Commencement of sentence 719

(1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides. Time at large excluded from term of imprisonment

(2) Any time during which a convicted person is unlawfully at large or is lawfully at large on interim release granted pursuant to anyprovision of this Act does not count as part of any term of imprisonment imposed on the person. Determination of sentence

(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. Exception

(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). Reasons

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

(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 thesentence imposed. Validity not affected

(3.4) Failure to comply with subsection (3.2) or (3.3) does not affect the validity of the sentence imposed by the court. When time begins to run

(4) Notwithstanding subsection (1), a term of imprisonment, whether imposed by a trial court or the court appealed to, commences orshall be deemed to be resumed, as the case may be, on the day on which the convicted person is arrested and taken into custody underthe sentence. When fine imposed

(5) Notwithstanding subsection (1), where the sentence that is imposed is a fine with a term of imprisonment in default of payment, notime prior to the day of execution of the warrant of committal counts as part of the term of imprisonment. Application for leave to appeal

(6) An application for leave to appeal is an appeal for the purposes of this section. R.S., 1985, c. C-46, s. 719; R.S., 1985, c. 27 (1st Supp.), s. 157; 1995, c. 22, s. 6; 2009, c. 29, s. 3. [7] The meaning of “if the circumstances justify it” must be considered to determine if Mr. B. should receive an increased ratio ofcredit for time served as provided for in sub-section (3.1). To date, there are few reported cases which deal with the meaning of thisphrase as used in sub-section (3.1).

To my knowledge, it is not a phrase which has otherwise been the subject of judicial commentary asit does not appear in any other legislation. [8] I have been referred to R. v. A.W.C. 2010 BCPC 197 , 2010 BCPC 0197 a decision of my sister Judge Dollis from August 5th 2010 and the more recent decision of R. v. Johnson, 2011 ONCJ 77, a decision of Justice Green of the Ontario Court of Justice from February 23rd, 2011. The latter case references R. v. Hindmarch, [2010] B.C.J. No. 1773 (S.C.) at para 31 and R. v.Brenton, , at paras. 12 – 18 and R. v.

Campbell, 2010 ONSC 6973 (S.C.). [9] In A.W.C., Judge Dollis found that sub-section (3.1) allows the court wide discretion and that no extraordinary or exceptionalcircumstances are required to justify granting 1 to 1.5 credit as opposed to 1 to 1. She found that evidence is required respecting thesituation of an individual accused in the particular correctional institution and the impact upon him or her arising from thosecircumstances. I agree with both of those conclusions.

She did not grant the higher ratio due to a lack of sufficient evidence. [10] In Hindmarch and Brenton, it was also determined that evidence is required as to the conditions in the remand institutions andthe impact of that on the Accused. In Campbell, Mr.

Justice Hill appears to have taken notice that the offender would not have thebenefit of remission for the time he spent in pre-trial custody, that the conditions is remand facilities are difficult and the offender was incustody away from his family who lived in the U.K. [11] In Johnson, the Court dealt with a constitutional challenge to the provision and had the benefit of extensive evidence andargument about the purpose of the amendments to S. 719 and the impact of that provision on offenders.

In particular, the Court foundthat using a 1 to 1 ratio means that most offenders who are held in custody pre-trial serve significantly longer sentences than those who

receive the same sentence but who were released on bail.

For example, and assuming average remission, on an 18 month sentence, thelower ratio results in the offender who was detained pre-trial spending four months longer in custody. [12] The Court in Johnson also reviewed the extensive case law which had developed prior to the amendment of S. 719 in which theCourts acknowledged the fundamental unfairness of not taking into account the lack of remission for offenders who are jailed, while stillpresumed to be innocent, in institutions which are chronically overcrowded and lacking in any meaningful programming or resources. [13] At the end of the day, the Court in Johnson did not find that S. 719 (3) or (3.1) were unconstitutional.

Rather, the Court foundthat there was no need to determine that issue as a proper

interpretation of the new provision addressed the disparity and unfairnesswhich it found would otherwise exist. At para. 161 the Court said: “Properly construed and applied, these provisions afford fair credit for the compensable losses or liabilities associated with remandcustody.” [14] The Court in Johnson adopted the oft cited words of Chief Justice lamer in R. v. McIntosh (SCC), [1995] 1S.C.R. 686 at paragraphs 27 and 29: “ … we cannot lose sight of the overriding principle governing the

interpretation of penal provisions. In Marcotte v. Deputy AttorneyGeneral for Canada (SCC), [1976] 1 S.C.R. 108, Dickson J. (as he then was) stated the principle as follows, at p. 115: Even if I were to conclude that the relevant statutory provisions were ambiguous and equivocal... I would have to find for the appellant inthis case. It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake.

No authority is needed for theproposition that if real ambiguities arise, in the construction and application of a statute affecting the liberty of a subject, then that statuteshould be applied in such a manner as to favour the person against whom it is sought to be enforced.” [15] I agree with the Court in Johnson that the words of S. 719 (3) and (3.1) are ambiguous and that the marginal note referring to subsection (3.1) as an “Exception” should be read plainly as an exclusion from the general statement in (3). [16] Earlier in the reasons in Johnson the Court reviewed the Parliamentary record.

During the debates, the government recognizedthat both the lack of remission or delays in getting to trial, referred to as the quantitative considerations, and the conditions of remandinstitutions, referred to as the qualitative considerations, were circumstances which would justify the higher ratio. It was recognized thatalmost all remand prisoners would bear the quantitative burdens of ineligibility for remission or parole. It was similarly recognized thatharsh remand conditions would also be circumstances justifying the higher ratio.

It is important to note that these matters are nottraditionally considered to be factors which serve to mitigate sentence and so should not result in an offender being over compensated inthis regard. [17] The Court in Johnson concluded, as do I, that a 1 to 1.5 ratio appropriately compensates, as best can be calculated at the time asentence is imposed, for lack of remission and parole eligibility for remand time.

I find that fairness dictates that these are circumstancesjustifying a 1 to 1.5 ratio for all but the few prisoners who would not be eligible for remission or parole or for those at the other end ofthe spectrum whose remand custody time is so brief that no calculable remission or parole eligibility would accrue. I also find that harshcircumstances in the remand institutions and the particular effect those conditions have on an offender are also matters that arecircumstances justifying the higher ratio.

It of course remains open to a sentencing judge to grant no credit or 1 to 1 or 1 to 1.5 or anyother ratio in between which is fit in all the circumstances. [18] I find that some evidence must be placed before the Court to establish that the offender has been or will be impacted by the lackof remission or eligibility for parole or of the circumstances of the remand institution where they have been held and the impact that hashad upon them.

I do not see any reason to adopt any different evidentiary procedures or standards than those which apply to a sentencinghearing. [19] Applying my findings in this matter, I take into consideration that Mr. B. has spent some five and one half months in custody. This is a lengthy period of pre trial custody and I infer, based on the evidence outlined in Johnson and on my experience, that if he is notgranted the higher ratio his overall time in custody will be longer than if he received the same sentence after being released on bail. [20] There is no suggestion Mr. B. has attempted to manipulate the system.

To the contrary, he entered an early guilty plea. Furthermore, he was granted bail but was unable to perfect it due to his family’s financial circumstances. It smacks of particularunfairness that he would not receive the higher ratio when an identical offender with a more affluent family could have obtained theirrelease. [21] He has filed an affidavit which outlines the very difficult circumstances in North Fraser Pre Trial Centre. He has had to share acell designed for a single prisoner. He has been threatened by his cell mates.

He speaks of being exposed to violence and his fear ofbeing victimized in circumstances where there were too few staff to offer any protection. [22] Mr. B. attempted to participate in programming but little was available to him and what was available was very limited. [23] Also filed were numerous recent news articles outlining the particularly difficult conditions and escalating violence at NorthFraser Pre Trial Centre. In the latest article, it is stated that the institution which was built to house 300 inmates now houses 650 ormore.

Optimally, there should be a ratio of 1 staff to 30 inmates but the reality is 1 to 60. [24] I took into account as a significant mitigating factor on sentence that the offence before me was Mr. B.’s first adult offence andthat he had just turned 18 at the time of the offence. I find it appropriate to take into account as a circumstance justifying the higher ratiothat the impact of the conditions at the remand centre would be more significant for someone incarcerated for the first time. [25] I find that the circumstances of Mr.

B.’s pre trial remand custody justify credit for that time calculated at the highest ratio of 1 to1.5. By my count he has spent 167 days in custody which calculates as a (rounded up) reduction of 251 days to his 14 month sentence.

_________________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia