R. v. Haughian Date:, 2016 BCPC 112

Citation: R. v. Haughian Date: 20160502 2016 BCPC 0112 File Nos: 33044-1K, 33083- 1K,33044-KC3, 33044-KA4, 33325-1K, 33044-5KA, 33044-KA7 Registry: Fort St. John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TRISTON JAMES HAUGHIAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. J. BIRNIE Counsel for the Crown: P. Swartz Counsel for the Defendant: G. Rivard

Place of Hearing: Fort St. John , B.C. Date of Hearing: April 22, 2016 Date of Judgment: May 2, 2016 [ 1 ] On April 22, 2016 the accused, Mr.

Haughian pleaded guilty to and was sentenced for the following offences: February 14, 2015 - assault of A.A. and uttering a threat to A.A.; April 2, 2015 - assault of A.A. and breach of recognizance by attending at A.A.’s residence; May 11, 2015 - breach of recognizance by having contact with A.A.; July 25, 2015 - assault of A.A., unlawful confinement of A.A., breach of recognizance by failing to leave A.A.’s presence on her request; and November 25, 2015 - breach of recognizance by being outside his residence without permission. [ 2 ] After hearing submissions from counsel I sentenced Mr.

Haughian, who is 20 years of age with no prior criminal record, to a total of 270 days in custody, which broke down as follows: February 14, 2015 assault - 30 days; February 14, 2015 uttering threats - 30 days concurrent; April 2, 2015 assault - 45 days consecutive; April 2, 2015 breach - 10 days consecutive; May 11, 2015 breach - 20 days consecutive; July 25, 2015 assault - 90 days consecutive; July 25, 2015 unlawful confinement - 90 days concurrent; July 25, breach - 30 days consecutive; and November 25, 2015 breach - 45 days consecutive.

A two year term of probation was imposed to follow with various conditions. [ 3 ] One of the issues at the sentencing hearing was the amount of credit which the accused should receive for the time he had spent in custody prior to the sentencing hearing. I decided that he should receive credit for all of his pre-sentence time in custody. My reasons for this decision follow.

Facts: [ 4 ] The actual time the accused spent in pre-sentence detention totalled 163 days as follows: February 14 - 16, 2015 (3 days), April 2 - 7, 2015 (6 days), May 11 - 12, 2015 (2 days), July 25 - 28, 2015 (4 days), and November 15, 2015 - April 22, 2016 (148 days, not including the last day). [ 5 ] The accused was initially released on a recognizance on the assault and uttering threats charges after a bail hearing on February 16, 2015. [ 6 ] He was re-arrested on April 2, 2015 for assault and breach of recognizance and released on a new recognizance after a bail hearing on April 7 th . [ 7 ] He was re-arrested on May 11, 2015 for breach of recognizance and released on a new recognizance after a bail hearing on May 12, 2015. [ 8 ] He was re-arrested on July 25, 2015 and released on a new recognizance after a bail hearing on July 27, 2015. [ 9 ] He was re-arrested on November 25, 2015 and consented to remain in custody until April 22 nd when he pleaded guilty as set out above and was sentenced.

[10] On April 7, May 12 and July 27 Crown brought applications to revoke the accused’s previous bail. On each occasion theprevious bail was cancelled but he was released on a new recognizance which covered both the new file and all the previous files. [11] On November 25th when the accused consented to remain in custody, the Crown did not bring applications to revoke his bail on the files from February, April, May and July. Thus the Records of Proceeding indicate that from November 25th onward he was incustody only on the November breach file, as his bail on the other files was not cancelled.

Crown Position: [12] Crown argued that because his custodial status after November 25, 2015 related only to the final breach offence, s. 719(3) of theCriminal Code mandates that his time on remand after that date can be credited only toward the sentence of 45 days imposed on that file. The remainder of his “time served” between November 25 and April 22 is “dead time” for which he can receive no credit. [13] There was no issue that what pre-sentence time the accused did receive credit for should be calculated at 1.5 days for each dayof time on remand.

The Crown submission then was that the accused should receive credit as follows: Time in custody between February 14, 2015 - July 28, 2015 = 15 days x 1.5 = 22.5 thus 23 days. Time in custody between November 25, 2015 to April 21, 2016 = 148 days x 1.5 = 222 days for which he could receive no more than 45 days credit toward the sentence imposed on the November 25th breach offence. Total time credited = 68 days. Time left to serve = 202 days.

Discussion: [14] An accused person who pleads guilty to one or more offences and receives a sentence of 270 days without having spent anytime in pre-sentence custody would expect to serve 2/3 of that sentence in a correctional centre, i.e. 180 days. This is because they areentitled under the Corrections Act and Regulation to earn remission of up to one half of their sentence provided they follow the rules andregulations of the jail. A remission period of 1/3 of the sentence is considered average for this “good behaviour” remission.

I note thereis no suggestion that the accused in this case has been anything other than a “good” inmate. In fact I was advised he had taken courseson anger management and relationship issues while on remand. [15] On the Crown’s analysis of pre-sentence credit the accused will serve (in effect): 163 days + 2/3 of 202 days (133 days) = 296days. That is, he will serve more time than the actual sentence imposed and just under four months longer than an accused who hadspent no pre-sentence time in custody. Does s. 719(3) of the Code mandate this result? In my view it does not.

The Law: [16] Section 719(3) reads: In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custodyby 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 incustody.

Section 719(3.1) provides: Despite subsection 93, if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless thereasons 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] The limitation of credit to one day for each day in custody applies to persons detained primarily because of a past criminalrecord and, (for the purposes of these reasons), to persons detained after being arrested for contravening a recognizance entered into bythem or for committing another indictable offence after being released on a recognizance. [18] In R .v Summers (2014), 2014 SCC 26 , 308 CCC(3d) 471 the Supreme Court of Canada held that exceptionalcircumstances are not required to award the 1.5 credit as without it an offender who is detained will lose the benefit of early release andthus serve a longer sentence than an offender who is not detained.

In R. v. Safarzadeh-Markhali the Court held that the limitation ofcredit for offenders who were detained primarily due to their past record contravenes s. 7 of the Charter and is of no force or effect. TheSupreme Court has yet to consider the limitation of credit for offenders detained after being arrested for breaching a recognizance orcommitting an indictable offence after being released on a recognizance. That limitation has withstood a Charter challenge in R. v.Chambers (2014), YKCA 13. [19] In R .v.

Vinepal 2015 BCCA 349 our Court of Appeal dealt with a different issue regarding the calculation of the credit to begranted under. s. 719 but in a very similar fact pattern to the one at bar. Their approach is instructive. [20] In that case Mr. Vinepal was arrested and charged with murder and attempted murder. He was eventually released on arecognizance and then re-arrested just over three months later for breaching that recognizance. He consented to his detention. TheCrown did not apply to revoke his bail. He remained in custody for 431 days.

He then pleaded guilty to the breach charges and wassentenced to 4 weeks in jail. At this point his prior bail on the murder charge was formally revoked. Once the 4 week sentence wascomplete he remained in custody for a further 170 days. He then pleaded guilty to and was sentenced for manslaughter and aggravatedassault in relation to the murder charges.

[ 21 ] There was no issue that Mr. Vinepal should not receive enhanced credit for the 170 days he spent in custody after his bail was revoked. The question was whether he was entitled to enhanced credit for the 431 days between his arrest (and consent to remain in custody) and the actual revocation of his bail. [ 22 ] The Court held that the onus lies on the Crown to bring an application to cancel a bail order and that until this is done a person is not “detained” under s. 524(4) or (8) and continues to be entitled to credit of 1.5:1 for time in pre-sentence custody. [ 23 ] Mr.

Vinepal was in a very similar situation to the accused before me. He was arrested for an offence. He was released on a recognizance. He was arrested for breaching the recognizance. He consented to his detention and spent a significant amount of time in custody before his bail on the initial charge was revoked for which time he was granted enhanced credit toward the sentence imposed on the initial charge . The Court of Appeal said nothing to suggest that perhaps he should receive no credit for that time. [ 24 ] To be fair, this issue was not argued by Crown so there was no reason for the Court to comment on it.

However it seems reasonable to assume that while considering the question of whether Mr. Vinepal should receive enhanced credit for the 431 days, the Court would have said something if they felt there was a question as to whether Mr.

Vinepal should actually receive no credit for that time. [ 25 ] The “no credit” argument is based on a very strict reading of s. 719(3) - interpreting the words, “as the result of the offence ”, to mean that a person’s custodial status must be noted as “in custody” on the record of proceeding for a given offence in order to qualify as time for which the offender can receive credit, ( any credit, whether 1:1 or 1.5:1) in relation to that offence. [ 26 ] In R. v. Mills 1999 BCCA 159 our Donald J.

A. speaking for the Court said the following regarding credit for pre-sentence custody: In my opinion , the question of which periods of incarceration should be considered for credit must be determined according to the words of the relevant provision, s. 719(3). That

section provides that credit may be given for time spent imprisoned “as a result of the offence”. Thus, if the custody resulted from the offence then credit should be given unless there is a sound reason for not doing so. When that rule is applied to the circumstances of this case, it is obvious that the time served on the separate threatening offence had to be deducted. But I do not think that the test should involve a meticulous inquiry into the reasons why an accused was in custody pending disposition or why the case may have been prolonged.

What really matters is whether the custody was on account of the offence charged. This case in particular exemplifies the difficulty in the approach advocated by the Crown. Mills did not “consent” to his incarceration in the usual sense of the word: he simply declined to apply for bail after considering his record and the pending threatening charge. He knew that he probably would not have been released, so why should he have bothered?

It is neither relevant nor useful to look into his motives for not applying earlier than he did. [ 27 ] The Mills case dealt with, among other things, the significance of having “consented” to remain in custody on the very charge for which he was ultimately sentenced. It does not speak to the point at issue in this case. Again, however, the Court’s approach is instructive. They are looking at what is really going on, what is the real substance of why the person is in custody - and how it relates to the offence(

s) charged. [ 28 ] Taking this approach, a determination of whether a person has been in custody “as a result of the offence charged” cannot begin and end with what is set out on the Record of Proceeding. The question is: how does an accused person’s custodial status relate to the offence or offences for which they are being sentenced? [ 29 ] Mr. Haughian was taken into custody on November 25 th for breaching the recognizance on which he had been released on the charges from February, April, May and July.

It is clear that he had climbed to the top of the “ladder” in terms of his release options and I think the only reasonable inference is that he did not seek his release in November because there was very little chance he would be released. While he was in custody “on paper” only on the breach file from November; in substance he was in custody “as a result of” the charges from February, April, May and July as well. The fact that his bail was not revoked does not change this. [ 30 ] This

interpretation of s. 719(3) is not precluded by any of the other decisions referred to by counsel: R. v. Goodkey 2015 BCSC 1977 , R. v. Preddy 2011 BCCA 324 , and R. v. Balmes 2015 BCCA 381 . It is consistent with the approach of the Court in Mills - i.e. construing the language of the Code , (where that language can reasonably support more than one

interpretation), so as to avoid the inherent injustice of having to ignore time spent by an accused in custody when that time is clearly related to the offence for which he is sentenced. ___________________________ J. C. Birnie Provincial Court Judge