PERCY CAIN, – v. –, 2022 NBKB 200

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON Percy Cain v. Warden, Dorchester Penitentiary 2022 NBKB 200 MM/201/2022 BETWEEN: PERCY CAIN, – and – WARDEN, DORCHESTER PENITENTIARY DECISION BEFORE: Justice Robert M. Dysart AT: Moncton, New Brunswick DATE OF HEARING: October 18, 2022 DATE OF DECISION: October 18, 2022 (orally) APPEARANCES: Percy Cain, per se Shauna Hall-Coates, for the Respondent

DYSART, J. (orally) INTRODUCTION [ 1 ] The Applicant, Percy Cain, brings this application for habeas corpus as against the Warden of the Dorchester Penitentiary. [ 2 ] Mr. Cain, who is currently serving a prison sentence, alleges that the Warden and Correctional Services Canada have failed to properly calculate and apply his remand credit, his so-called Summers credit. [ 3 ] Mr. Cain alleges that he was entitled to his statutory release from prison sometime in August of 2022.

He seeks his immediate release from prison, and in his application, he also seeks various orders as against Correctional Services Canada and against the Parole Board of Canada, including that they pay for his lodging following his release from prison, and that this court place restrictions on any conditions that may be imposed upon him following his eventual release from prison, such as any restriction on his use of drugs or alcohol, which he maintains is not relevant to the offence for which he has been imprisoned. [ 4 ] On an application such as this, this Court does not have jurisdiction to interfere in the administrative operations of Correctional Services Canada, or to order that it pay for his lodging following his release from prison.

Further, this Court does not have jurisdiction to interfere in the decisions made by the Parole Board of Canada, which operates as a distinct entity. Other than an application for judicial review, this Court lacks jurisdiction. [ 5 ] Therefore, the only proper question before this Court is whether there has been any unlawful deprivation of Mr. Cain’s liberty. That is the question to be resolved on this application for Habeas Corpus. As noted, he argues that there has been a miscalculation with respect to his remand credit, which he says should have resulted in his statutory release sometime this past summer.

EVIDENCE [ 6 ] The Court has considered Mr. Cain’s application, which while not in the form of an affidavit is nonetheless accepted by the Court as having been his evidence. The Court has also heard from Mr. Cain directly during the hearing of this matter. [ 7 ] Effectively, Mr. Cain’s argument is that he was sentenced by a Justice of the Supreme Court of Nova Scotia to a six-year period of incarceration. He argues that he should be entitled to statutory release after having served two thirds of that sentence, i.e. after having served four years.

But he argues that the four years that he is required to serve should be reduced by the 488 days of remand credit for which he was entitled, such that he should have been released after serving some 952 days, which would have expired in August of this year. [ 8 ] In response, the Respondent has filed the affidavit of Anne Butler, Acting Regional Manager of Sentence Management for Correctional Services Canada. In that role, Ms. Butler is responsible for ensuring that the administration of sentences by inmates in Atlantic Canada, including those at the Dorchester Penitentiary where Mr.

Cain is currently serving his sentence, conform with the sentences imposed by the Courts and the applicable legislation, notably the Criminal Code and the Corrections and Correctional Release Act . [ 9 ] Attached to her affidavit is a copy of the decision on sentence rendered by Justice Timothy Gabriel of the Supreme Court of Nova Scotia. Justice Gabriel, who found Mr. Cain guilty of break and enter and theft, contrary to s. 348(1) (

b) of the Criminal Code of Canada , sentenced Mr. Cain to six years imprisonment. The disposition reads as follows, however, at page 8 of the decision: “In balancing all of the factors in this case, including these submissions with respect to Mr. Cain’s health, I impose a sentence of incarceration of six years. When I calculate the number of years, I use 360 days (30- day months times six years) for a total of 2,160 days. I provide Mr.

Cain with remand credit of 488 days, that leaves a total sentence of 1,672 days on a “go forward basis”.” [ 10 ] The sentence was initially improperly recorded on the Warrant of Committal, which overstated the sentence because it failed to consider Justice Gabriel’s use of a 30-day month. That resulted in an amended Warrant of Committal being issued by the Court, dated

June 10, 2020, which confirmed Mr. Cain’s sentence at four years, six months and 29 days, being 1,672 days, beginning on December30, 2019. At the hearing, counsel for the Respondent indicated that the Warrant of Committal contained an error and that it should haveread, “four years, six months and 28 days”, and she confirmed that Correctional Services Canada is proceeding on the basis of thecorrected Warrant of Committal. [11] The evidence from Ms.

Butler is that the sentence was then entered into CSC’s Offender Management System, which thendetermines the relevant dates for the offender’s sentence, including his or her eligibility for parole. [12] By correspondence dated June 10, 2020, CSC advised Mr. Cain that as a result of his aggregate sentence of 1,672 days, he wouldbe eligible to apply for day parole on January 9, 2021; for full parole on July 9, 2021; and for a statutory release on January 17, 2023. [13] Statutory release provides for the release of an offender at the two-third (2/3) mark of their sentence.

Section 127(3) of theCorrections and Correctional Releases Act reads as follows: Subject to this section, the statutory release date of an offender sentenced on or after November 1, 1992 to imprisonment for one or moreoffences is the day on which the offender completes two thirds of the sentence. [14] In the Applicant's case, he will be eligible for statutory release on January 17, 2023, upon completion of two-thirds of hissentence. Two thirds of 1,672 is 1,114 days. The Sentence

Summary of Events correctly lists the two-third mark of the Mr. Cain’ssentence at 1,114 days from December 30, 2019, which places it on January 17, 2023. [15] I have verified the number of days, and I am satisfied that 1,114 days after December 30, 2019, the date sentence was imposed byJustice Gabriel, is indeed January 17, 2023. [16] The question for the Court to determine is whether Mr. Cain’s pre-sentence detention prior to December 30, 2019, should counttowards the two-thirds of his sentence that he is required to serve. Again, he argues that his sentence was, in fact, a six-year term ofimprisonment.

That, he argues, is the “sentence” for the purposes of section 127(3) of the Corrections and Correctional Release Act. [17] The Respondent argues that the “sentence”, for the purposes of early release, is in fact 1,672 days, which is the net sentenceimposed by Justice Gabriel following the remand credit. [18] So, which is the proper method of calculating the credit?

Is it factored into the equation before the “sentence” is pronounced, oris it to be considered and applied against the time served on the initial sentence of six years in terms of applying the Corrections andCorrectional Release Act? [19] The Supreme Court of Canada, in R. v. Summers, 2014 SCC 26 , a decision which was written by Madam JusticeKarakatsanis, considered the issue of pre-sentence remand credits, and she stressed their importance at paragraphs 1 and 2 of herdecision.

But she also stressed how those credits might or might not be considered when determining sentence: [1] When an accused person is not granted bail, and must be remanded in jail awaiting trial, the Criminal Code, R.S.C. 1985, c. C-46,allows time served to be credited towards a resulting sentence of imprisonment. A day in jail should count as a day in jail. [2] However, crediting a single day for every day spent in a remand centre is often insufficient to account for the full impact of thatdetention, both quantitatively and qualitatively.

Time in a remand centre does not count for the purposes of eligibility for parole,earned remission or statutory release, and this can result in a longer term of actual incarceration for offenders who were denied bail. [Emphasis added] [20] This is consistent with the text book, Sentencing, Eighth Edition, by Clayton Ruby et al, at page 528, where the authors write: “… other than for life imprisonment, legislative provisions for parole eligibility and statutory release do not take into account time spent

in custody before trial or sentencing.” [ 21 ] In my view, if the remand credits were applied as Mr. Cain suggests, he would effectively be doubling up on credits – receiving 1.5 days credit for each day in remand, which would then reduce the time served at only 2/3 – meaning he would be getting a greatly enhanced credit, beyond what is intended for a Summers credit. [ 22 ] I am satisfied that Mr.

Cain is therefore not eligible for statutory release until January 17, 2023, by which time he will have served 1,114 days in prison, which is two thirds of the sentence imposed by Justice Gabriel in this matter, which was 1,672 days. Mr. Cain was not sentenced to six years in prison. [ 23 ] Because Mr. Cain has not yet completed his sentence, his ongoing incarceration by Correctional Services Canada and the Dorchester Penitentiary is both lawful and legitimate. There has been no unlawful deprivation of Mr.

Cain’s liberty. [ 24 ] His application for habeas corpus is therefore dismissed. [ 25 ] Because habeas corpus is a civil remedy, usual costs awards are applicable, and costs follow the result. [ 26 ] Therefore, Mr. Cain, whose application has been dismissed, shall be required to pay costs to the The Attorney General for Canada as representing Correctional Services Canada and the Warden of the Dorchester Penitentiary, costs in the amount of $1,000.00 inclusive of disbursements. DATED at Moncton, New Brunswick this 18 th day of October, 2022. _____________________________________ Robert M.

Dysart, Judge of the Court of King's Bench of New Brunswick