r v. CLAUDE, 2011 QCCQ 11688

R. c. Gosselin 2011 QCCQ 11688 JL1755 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and Penal Division” No: 500-01-038684-103 DATE: November 8, 2011 ____________________________________________________________________ PRESIDING: THE HONOURABLE DENIS LAVERGNE, J.C.Q. ____________________________________________________________________ THE QUEEN Prosecutor v.

CLAUDE GOSSELIN Defendant ____________________________________________________________________ CORRECTED JUDGMENT ON SENTENCING ____________________________________________________________________ WHEREAS the fifth line of the third paragraph of paragraph [46] of the judgment rendered on October 12, 2011, contains a clerical error in that it should read “524(4)” instead of “525(4)”; FOR THIS REASON, THE JUDGMENT SHOULD READ AS FOLLOWS: [ 1 ] Following a trial, the Court convicted the defendant of manslaughter for the reasons stated in the judgment on the verdict handed down on June 30, 2011. [1] [ 2 ] The Court did not accept the argument based on the interruption of the causal link between the stab wounds inflicted by the defendant and the death of the victim or that of the negligence or failure of third parties to give timely assistance to the victim, Ms.

Marguerite Thibeault. -

Summary of the facts [ 3 ] During an argument provoked by Ms. Thibeault’s refusal to buy him a beer, the defendant stabbed her three times between the pelvis and the shoulders as she was leaving a bar where she was a regular patron. [ 4 ] The defendant knew the victim well; she was a close acquaintance, even a friend, in whose company he would often consume alcohol. Therefore, on the day of the attack, it can reasonably be inferred from the facts that both parties drank a fair amount of beer in that bar.

The defendant, who frequented that establishment less often, was completely drunk. [ 5 ] According to the forensic pathologist, none of the three stab wounds were lethal in themselves. [ 6 ] One of the knife thrusts perforated the victim’s colon, however, and peritonitis (systemic abdominal infection) resulted from that untreated wound. The pathologist attributes death to an [ translation ] “abdominal trauma secondary to the passage of a sharp, cutting weapon with secondary peritonitis”. [2] [ 7 ] Although Ms.

Thibeault did not appear to be particularly affected by the attack on April 1, 2010, or at least in the hours immediately following it, she was not seen again. On April 9, 2010, a cousin discovered her dead, seated in a chair in the apartment of an individual. According to the pathologist, death most likely occurred between April 3 and April 7, 2010. It appears that Ms. Thibeault would probably have survived if she had just received the appropriate medical care.

[ 8 ] The facts establish that Ms. Thibeault refused to go to the hospital; moreover, her cousin testifies that she generally avoided consulting doctors. - Objective seriousness [ 9 ] Under

section 236(

b) of the Criminal Code [3] (the Code ), the offence of manslaughter is punishable by life imprisonment . [ 10 ] There is no need to elaborate on the objective seriousness of a crime that consists in taking a human life.

Since this is a case of manslaughter as opposed to an intentional killing, however, sentences vary considerably in accordance with the specific circumstances of each case. [ 11 ] The law therefore confers broad discretion on the Court in line with the highly variable nature of acts of manslaughter . - Subjective seriousness [ 12 ] The facts clearly show that the defendant did not desire the death of Ms. Thibeault . He was drunk and did not even realize at first that he had injured her.

In the days following the attack, he worried about the fact that he did not see her and asked after her. [ 13 ] It is nevertheless true that his pathetic insistence that Ms.

Thibeault buy him a beer caused him to take the outrageous step of stabbing her, leading to the dramatic consequences herein referred to. [ 14 ] The Crown considers that the circumstances of the manslaughter at issue here, particularly the victim’s failure to seek treatment, are more those of a [ translation ] “near accident” than of a murder and justify imposing a five-year sentence. [ 15 ] The defendant concedes that, in the circumstances, this sentence does not appear unreasonable, b ut he asks the Court to take into account his empathetic conduct when, alarmed by the absence of Ms.

Thibeault , he tried to find out about her condition in the week following the attack. He asks the court to impose a sentence of four years . - Aggravating circumstances [ 16 ] The Crown argues that the offence was committed in a context of “married life” or of domestic violence. This constitutes an aggravating circumstance under

section 718.2 ( a )(ii) of the Code . [ 17 ] The facts do not accurately establish the nature of the relationship between the defendant and the victim. At the very least, the defendant admits to regarding Ms.

Thibeault as a friend, as the two would go drinking together from time to time. [ 18 ] In any event, an aggravating circumstance as defined in the above-cited provision cannot be established. [ 19 ] On the other hand, the Court accepts the following aggravating circumstances: - the three stab wounds inflicted on the victim for a reason as frivolous as her refusal to buy the defendant a beer - the defendant’s lengthy criminal record, dating back to 1959.

This includes, inter alia , convictions for possession of firearms, pointing a firearm, theft, causing a disturbance, breaking and entering a dwelling house, vagrancy, disturbing the peace, carrying a concealed weapon, resisting arrest, setting a fire, possession of property obtained by crime, personation, mischief, and breaching release conditions - at the time of the offence, the defendant was prohibited from possessing a knife. - Mitigating circumstances [ 20 ] The court detects no mitigating circumstance beyond Ms. Thibeault’s failure or refusal to seek treatment for her injuries. [ 21 ] Inquiring after Ms.

Thibeault’s state of health at a community resource centre following the altercation may, at most, indicate remorse or regret, but the action is ambiguous. [ 22 ] First, it was the fear of being beaten, since those around him suspected him of having stabbed Ms. Thibeault, rather than altruism or empathy, that, on April 2, prompted the defendant to speak to the police about the previous day’s incident, although he neglected to mention the stabbing. [ 23 ] Second, while making his statement to the court under

section 726 of the Code , the defendant showed neither compassion nor regret, blaming other people for Ms. Thibeault’s death since they had not intervened to help her. Sentencing [ 24 ]

Section 718.1 of the Code states that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718 of the Code provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: - to denounce unlawful conduct - to deter the offender and other persons from committing offences

- to separate offenders from society, where necessary - to assist in rehabilitating offenders - to provide reparations for harm done to victims or to the community - to promote a sense of responsibility in offenders, and acknowledgment of the harm done. [ 25 ] Now 72, and aged 70 at the time of the offence, the defendant has a long history of criminality. [ 26 ] He has health problems and also appears to be addicted to alcohol. Moreover, it was during a drinking binge that he committed the irreparable act of stabbing Ms.

Thibeault with a knife that a court order prohibits him from possessing. [ 27 ] Clearly, we cannot speak here about any kind of compensation for the harm caused since the death of Ms. Thibeault is a fatal consequence that cannot be remedied in any way. [ 28 ] In addition, the Court doubts that the defendant truly understands the extent of his responsibility.

It has no indicators allowing it to address the question of the reintegration and rehabilitation of the defendant. [ 29 ] There is reason to believe that the defendant has adopted a relatively marginalized lifestyle, of which excessive alcohol consumption is an important component. In the absence of reliable data, the risk of reoffending is random. One might suppose that the age and state of health of the defendant are likely to neutralize the potential for risk. However, even at age 70, the defendant demonstrates his capacity to engage in unacceptable behavior that is a danger to the public.

This irrational and unforeseeable violence in response to a sense of frustration that, under the influence of alcohol, the defendant is unable to suppress, is not reassuring, not to mention his refusal to comply with a court order prohibiting him from possessing a knife. [ 30 ] All in all, aside from Ms.

Thibeault’s decision not to seek medical treatment for her injuries, there are few factors in the record favourable to the defendant that would allow us to depart from the sentence generally imposed in cases of manslaughter committed in comparable circumstances. [ 31 ] In this case, the aggravating circumstances outweigh the mitigating circumstances.

The sentence must first reflect society’s denunciation of the defendant’s behaviour and its condemnation of any action that ends a human life. [ 32 ] The case law in similar matters confirms the diversity of sentences. [4] For example, courts sometimes impose sentences of ten or more years in cases of manslaughter under circumstances that resemble murder. When a homicide has aspects of an accident or criminal negligence, we find sentences of five years or fewer.

In Lemay , [5] filed in 1998, the Court of Appeal notes after examining case law that homicides occurring within the context of marital or similar conflicts frequently receive sentences of between eight and twelve years, depending on the characteristics of the case and the degree of gravity that may be demonstrated.

In addition, a significant percentage of case law reveals sentences of between five and ten years. [ 33 ] Taking into account the objective seriousness of the offence of manslaughter , the main aggravating circumstances, the circumstances of the death, particularly the victim’s decision not to seek medical attention for her injuries, the objectives of deterrence and denunciation, and case law in similar , the sentence suggested by the Crown is fair and equitable.

Consequently, the court imposes a sentence of five years. - Calculating credit for time spent in pre-sentence custody [ 34 ] Given the amendments to subsection 719(3) of the Code by the Truth in Sentencing Act [6] (the Act ) , the parties disagree on the length of time spent in custody that should under the circumstances be credited to the five-year sentence. [ 35 ] The debate concerns the

interpretation and application of the new subsections (3) and (3.1) of

section 719 of the Code , which came into force on February 22, 2010. [7] [ 36 ] Arrested and detained since April 15, 2010, the defendant had spent 441 days in pre-sentence custody as of June 30, 2011, when the verdict was delivered. By October 12, 2011, when the sentence was imposed, another 103 days had been added, for a total of 544 days spent in pre-sentence custody. [ 37 ] Basing itself on the new subsection (3) of

section 719 of the Code , the Crown asks the court to grant one day of credit for each day spent in custody until June 30, 2011, or 441 days; for the subsequent days, until October 12, 2011, it concedes that the court could exercise its discretion to grant one and a half days’ credit for every day spent in custody, or 155 additional days, on the ground that this portion of the delay resulted from the time needed to prepare and make the necessary arguments for sentencing purposes and to allow the Court to deliberate while taking into account the availability of counsel and the Court itself.

Thus, after the verdict was rendered on June 30, 2011, the case was adjourned for argument until September 12, 2011, which ultimately took place on September 13. On that date, the Court reserved sentencing until October 12, 2011. [ 38 ] In short, this is a circumstance justifying the Court in exercising its discretion to grant one and half days’ credit for every day spent in custody. In R. v. Payne, [8] R. v. Bridgeman , [9] R. v. Larochelle [10] and R. v.

Abubeker, [11] similar circumstances were taken into account to tailor the credit granted for the period spent in pre-sentence custody (and not necessarily one and a half days per day spent in custody) to be subtracted from the sentence imposed. [ 39 ] The defendant argues for the granting of one and a half days of credit per day spent in custody for the same reasons that have long been traditionally cited before the courts: compensation in consideration of the fact that time spent in pre-sentence custody is not included either when considering eligibility for parole or for the purposes of credit provided for in various laws, the harsher conditions of pre-sentence custody, overcrowding problems, and the lack of training and educational programs.

[ 40 ] Before the Act came into force, there was a common practice in Canadian courts of doubling the time spent in pre-sentence custody. In R. v. Wust , [12] the Supreme Court of Canada even posits that, absent justification, sentencing judges should give some credit for time spent in custody.

According to t he Court, it is entirely appropriate to credit double the amount of time spent in custody, even though a different ratio could also be applied, depending on the detention conditions in which the defendant was held. [ 41 ] In this case , the defendant testifie d briefly about the conditions of his pre-sentence custody.

We may conclude that: - he has been incarcerated since April 15, 2010; the Court denied his application for release - he was placed in solitary confinement, 24 hours a day, with exercise rights, which he says he did not take advantage of for unspecified reasons - he has health problems, particularly high blood pressure, so at least part of the time spent in segregation in pre-sentence custody was spent in the health-care sector of the detention centre but under unspecified conditions - it also seems that he was hospitalized during his time in pre-sentence custody - finally, we understand that the defendant was placed in solitary confinement as a protective measure given the threats he had received. [ 42 ] The defendant argues that the purpose of the new legislation now restricting the judge’s discretion in calculating credit for time spent in pre-sentence custody is simply to eliminate the automatic application of judge-made law that may not always be justified by the circumstances.

According to him, the conditions of pre-sentence custody and the systemic effect of this custody on the right of each inmate to apply for parole or credit are circumstances justifying the granting of the maximum credit, now established at one and a half days per day spent in pre-sentence custody. - Analysis [ 43 ] The new provisions replacing subsection 719(3) of the Code enacted under

section 3 of the Act read as follows:

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

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

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

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

(3.4) Failure to comply with subsection (3.2) or (3.3) does not affect the validity of the sentence imposed by the court. [ 44 ] We note that these provisions contain no definition or description of what is meant by circumstances justifying an increase in credit from one to one and a half days per day spent in pre-sentence custody (or in custody, as stated in subsections (3) and (3.1)). [ 45 ] To date, the court has found no decision of a Quebec court or of a Canadian court of appeal [13] on the subject. In Gabriel v. R. , [14] the Court of Appeal does not address this matter directly. There are, however, Canadian trial court decisions that differ in their

interpretation of the words “if the circumstances justify it” found in subsection (3.1). [ 46 ] Before we address this point, the following observations emerge from a reading of these new provisions: - in determining the sentence, the court retains discretion to take into account any time spent in custody - if it chooses to exercise this discretion, the court may grant a maximum credit of one day per day spent in custody.

Thus, on the one hand, the new version limits the discretion of the court; on the other hand, it expresses a general rule for calculating the time spent in custody for sentencing purposes - subsection (3.1) qualifies the general rule: the credit may increase from one day to one and a half day for each day spent in custody but only if the circumstances justify it.

Moreover, the provision prescribes an exception to the exception: the credit of one and a half days cannot apply in situations that fall under subsections 515 (9.1) and 524(4) of the Code - the court must justify its decision to grant credit to take into account time spent in pre-trial custody; - when imposing the sentence, the court must indicate: ▪ the time spent in pre-trial custody ▪ the term of imprisonment that would have been imposed if the time spent in pre-trial custody had not been taken into account ▪ the credit granted for the time spent in pre-sentence custody

▪ the sentence imposed. [ 47 ] In the somewhat skimpy case law published to date, we observe two approaches to determining what constitutes circumstances justifying increasing the credit to one and a half days. [ 48 ] One of these approaches considers the conditions and various aspects of the time spent in pre-trial custody.

This is known as the “qualitative” approach. [ 49 ] The time elapsed between the guilty plea and sentencing, [15] the unavailability of the court due to illness, [16] the geographical distance of the inmate’s family, [17] the inmate’s financial inability to pay the required surety, [18] and the difficult conditions are all circumstances taken into account by courts when granting credit of a day and a half. [ 50 ] Nevertheless, in R. v. Velez-Lau , [19] the court implies that the difficult conditions of pre-sentence custody do not automatically result in credit of one and a half days .

The circumstances must be established. [ 51 ] In subsection 36, the court writes: In my view, the words: "if the circumstances justify it" in s. 719(3.1) give the court a wide discretion to grant credit for pre-sentence custody above the general rule of 1:1 up to a maximum of 1.5:1 except for the excluded categories of remanded offenders. That discretion must be exercised having regard to the circumstances of the offender being considered as established by the evidence.

Those circumstances include but are not limited to the circumstances of the detention, the length of the custody, the conditions during custody, the availability or unavailability of appropriate educational and rehabilitation programs and the effect of such custody on remission and parole eligibility. [ 52 ] The second approach essentially considers the difference in the way sentences are administered for offenders placed in pre- sentence custody and those released on conditions while awaiting trial. [ 53 ] This approach can be described as “quantitative”. [ 54 ] The Ontario Court of Justice espouses this approach in R. v.

Johnson . [20] This is a voluminous, detailed decision highlighting, inter alia , the nature and effects of pre-sentence custody, the history and evolution of case law concerning the taking into account of detention conditions when assigning credit for pre-sentence custody, and the impact of the new provisions on the fate of the inmate, viewed also from the perspective of the Canadian Charter of Rights and Freedoms [21] (the “ Charter ”).

Moreover, in that case, the court had abundant evidence, composed of testimony, sworn statements (affidavits), articles by university professors, governmental reports, statistical analyses and parliamentary debates (used primarily to discern legislative intent with regard to these new provisions). [ 55 ] One of the most powerful passages in that decision is the table [22] showing that persons held in pre-sentence custody who receive a prison sentence will ultimately be deprived of their liberty for one-third longer than those who receive the same sentence, on the same day and for the same crime, but who are released subject to conditions while awaiting trial.

This systemic impact results from the application in each case of the legislation relating to the statutory release that is granted once a certain percentage of a sentence has been served. [ 56 ] Finding that subsections (3) and (3.1) do not infringe

section 15 of the Charter , and refraining from addressing

section 7 given its conclusions regarding the contextual

interpretation of its provisions, the court sees ambiguity in the provision: 176 Subsections (3) and (3.1) are separated by a single-word marginal note that introduces the latter provision. That word is "Exception". It is, however, of little if any interpretive assistance as to the meaning of sub-s. 719(3.1). This is at least in part because of its inevitable contextual ambiguity. As noted earlier, the "word" exception does not appear in the provision.

More confusing still, sub-s. (3.1) does contain several patent exceptions to the enhanced credit regime set out in that provision: those incorporated by reference to sub-ss. 515(9.1), 524(4) and 524(8). Indeed, the conspicuous failure to style the marginal note "Exception to Subsection (3)" reasonably invites the

interpretation that it was not Parliament's intendment that the provision be read as a general exception to the rule of 1:1. … 182 The ambiguity surrounding the relationship between sub-ss.(3) and (3.1), and, in particular, the words "if the circumstances justify it", mandate consideration of appropriate cannons of construction.

But for the expressly excluded categories of remand offenders, I am satisfied that, properly interpreted, these provisions empower sentencing judges to grant pre-sentence custody credit at a ratio of between 1:1 and 1.5:1 whenever the case and offender specific circumstances properly warrant the exercise of such discretion and reasons for doing so are enunciated.

In my view, and but for those situations where the common law has long-recognized enhanced credit disqualification, a ratio in excess of 1:1 (and ordinarily 1.5:1) is both fair and apposite in every remand offender sentencing case warranting compensation for the loss of remission.

In so far as the regime set out at sub- ss. 719(3) and (3.1) is intended to compensate fairly for the correctional systems' failure to account for the incarceration of offenders prior to the commencement of their sentences, Parliament did not "get the arithmetic wrong". [ 57 ] According to this approach, the more onerous conditions of pre-sentence custody should be included, as the case may be, among the circumstances the judge can take into account when deciding the length of a sentence. Consequently, such conditions would be irrelevant for the purposes of applying subsections (3) and (3.1). [ 58 ] In R. v.

Dann , [23] R. v. Billard , [24] and R. v. L.C ., [25] this qualitative approach was adopted, and a credit of one and a half days was assigned. [ 59 ] Other decisions rebut the

interpretation adopted in Johnson . [ 60 ] In R. v. Larochelle , supra , the Ontario Court of Justice held that the application of the reasoning in Johnson would amount to

considering it appropriate to grant credit of one and a half days to practically all cases of pre-sentence custody. [ 61 ] The exception would become the rule. The court writes: Johnson sets out a persuasive case for why all courts should take loss of remission into account in all cases and therefore routinely give enhanced credit for pre-sentence custody on a 1.5:1 basis. What Johnson does not do, in my view, is explain how I can ignore the clear intention of Parliament to the contrary. [ 62 ] In R. v.

Brenton , [26] the court observes that it is necessary to do more than refer to the period spent in pre-sentence custody to justify increasing the credit from one to one and a half days. On the

interpretation of subsection (3), it notes: [17] In this case, there are no circumstances which would justify an enhanced credit beyond the general rule of one for one. I describe this as a general rule because of the wording of section 719(3) and because in most cases a one for one credit will be fair and appropriate because it reflects the exact period of time the offender has been in custody.

In addition, this is consistent with the nature and purpose of the legislation: the limiting of credit for pre-sentence custody while legislating a general rule that such a credit will normally not exceed a one for one credit being granted. In other words, a credit which reflects the exact period of time spent in pre-sentence custody, … [ 63 ] In R. v. D.A.J ., [27] the Supreme Court of Ontario also rejects the quantitative approach set out in Johnson .

While it acknowledges that Johnson sets out a persuasive case justifying the granting of one and a half days’ credit in all cases, the Court concludes that such a result would betray Parliament’s clear intention, attested to by the text of subsection (3) establishing the rule at one day per day spent in custody. [ 64 ] The Court cannot agree with the view expressed in Johnson for the same reasons given in other decisions cited previously concluding that granting one and a half days’ credit in all cases of pre-sentence custody , whatever the circumstances, would run directly counter to Parliament’s intent. [ 65 ] Moreover, the Court sees no ambiguity in the new provision. [ 66 ] The former subsection 719(3) of the Code confined itself to stipulating that the court may take into account any time spent in custody by the person as a result of the offence.

Incidentally, the new subsection (3) contains the same text, adding a limit to the time that may be assigned to take into account the time spent in pre-sentence custody. [ 67 ] The amendment to section (3) and the addition of four new subsections ((3.1), (3.2), (3.3) and (3.4)) evince an intention, not to set aside all legal discretion that the Act upholds, but to circumscribe it – first of all, by limiting the credit that may be assigned by the judge to take into account the time spent in pre-sentence custody, and then by introducing into the process of establishing this credit a rationalization in that the court must henceforth justify any decision to assign time for the period spent in custody (subsection (3.2)), an obligation that did not previously exist in the Code . [ 68 ] Moreover, subsection (3.3), requiring notations in the inmate’s record, will make it possible to report as accurately as possible the sentence actually imposed and, in particular, to meet the requirements of transparency and intelligibility that the public is entitled to expect. [ 69 ] Consequently, and in all cases of pre-sentence custody , including those situations set out in sections 515 (9.1) and 524(4) of the Code , the time assigned for the period spent in pre-sentence custody cannot exceed one day for each day spent in custody. [ 70 ] Subsection (3.1) creates an exception.

In this respect, it is equally impossible for the Court to fall in with the Johnson decision. The preposition “despite” connotes the idea of a concession or a compromise set out in the text that it introduces. Consequently, subsection (3.1), which begins with “despite subsection (3)”, truly constitutes an exception. Thus, “despite” the obstacle represented by the general rule of subsection (3), the court can assign a credit of one and a half days per day spent in custody if the circumstances justify it.

Persons detained in custody under subsection 515(9.1) or subsection 524(4) of the Code are nevertheless excluded from this exception. [ 71 ] Since this is an exception to the general rule, the inmate has the burden of proving that the circumstances justify increasing the credit. There is no presumption that the period spent in pre-sentence custody merits the maximum credit, in this case, according to the new provisions, one and a half days . A combined reading of subsections (3) and (3.1) does not support another

interpretation that takes into account Parliament’s intention. [ 72 ] As for the circumstances that could justify increasing the credit, subsection (3.1) does not exclude any. They could be many and varied. The Court rejects the proposition put forward in Johnson whereby the circumstances refer only to the quantitative aspect of pre-sentence custody. The text itself does not support this

interpretation which, moreover, would be contrary to the criteria set out in case law, which has long acknowledged the onerous conditions of pre-sentence custody as one of the factors to be considered when establishing the credit to which an inmate is entitled when being sentenced. Nothing in the text of the new provisions allows us to believe that Parliament intended to render those criteria obsolete. [ 73 ] That being said, reducing the pre-sentence custody credit will result in longer sentences.

Moreover, we cannot deny that, in certain cases, persons held in pre-sentence custody will spend more time incarcerated than those released while awaiting trial. We must nevertheless assume that Parliament was aware of the possibility of these cases that can result from calculating sentence expiry dates for the purposes of parole eligibility or statutory release. [ 74 ] In addition, it should be remembered that, in Johnson , the court had factual evidence on the systemic effects of the laws governing the application of sentences on the length of incarceration of a person held in pre-sentence custody.

Such is not the case here. Consequently, should we, for example, consider it to be common knowledge that credit is almost automatically granted to almost all persons sentenced to imprisonment? Whatever the case may be, and given the court’s

interpretation of subsections (3) and (3.1), it is not necessary to answer this question.

[ 75 ] Pursuant to the foregoing, the Court concludes that the defendant has not established any circumstances that would justify granting him credit of one and a half days per day spent in custody. [ 76 ] Although it does not question the difficult conditions inherent to pre-sentence custody, the Court is not persuaded that the accused’s situation differs in any significant way from that of any person deprived of liberty while awaiting trial. Aside from the 24/7 solitary confinement, his detention conditions are unclear.

While the decision to segregate the defendant appears to be a protective measure, we do not know when it was made, by whom, or for exactly what reason. We do not know whether the defendant himself requested this protection or exactly how long he has spent in solitary confinement since he appears to have spent some time in hospital . The defendant alleges that he has health problems, but we do not know in what way pre-sentence custody may have been more onerous as a result of those problems.

Nor do we have any details about the daily life of a person kept separate from the general inmate population . [ 77 ] All in all, the defendant can justify the application of the general rule of one day credit per day spent in custody, if only because, under section 719(1) of the Code , he will not earn day credits for the purpose of calculating his statutory release date, but he has not convinced the Court that his detention conditions were sufficiently onerous to justify assigning the maximum credit allowed under subsection (3.1). [ 78 ] For these reasons, the Court assigns credit of one day per day spent in custody from April 15, 2010, to June 30, 2011, for a total of 441 days.

For the period between July 1, 2011, and October 12, 2011, or 103 days, the Court grants credit of one and a half days per day spent in custody since the defendant had nothing to do with this delay. Had he been sentenced on June 30, 2011, he would have begun accumulating credit days for the purpose of calculating his statutory release date. [ 79 ] He is therefore entitled to additional credit of 155 days for a grand total of 596 days. - Conclusion [ 80 ] The Court sentences the defendant to five years’ imprisonment. The total time spent in pre-sentence custody until the delivery of the sentence is 544 days.

Considering the credit assigned for pre-sentence custody, or 441 days for the period between April 15, 2010, and June 30, 2011, and 155 days for the period between July 1, 2011, and October 12, 2011, or a total of 596 days, the defendant must serve three years and 134 days in prison beginning on this date. [ 81 ] The court makes an order under section 109(1) of the Code prohibiting the defendant from having in his possession or control the weapons described and orders DNA sampling under

section 487.05(1) (

b) of the Code . [ 82 ] Considering the sentence imposed and the limited means of the defendant, the Court waives payment of the victim fine surcharge. [ 83 ] FOR THESE REASONS, THE COURT: SENTENCES the defendant Claude Gosselin to three years and 134 days’ imprisonment; MAKES orders under sections 109(1) and 487.05(1) (

b) of the Criminal Code ; WAIVES payment of the victim fine surcharge . ________________________________ DENIS LAVERGNE, J.C.Q. Mtre Sonia Lebel For the Crown Mtre Yves Gratton For the defendant Hearing date: September 13, 2011