R. v. McDougall, 2014 MBPC 35

CITATION: R. v. McDougall , 2014 MBPC 35 Date: 20140723 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) K. Parker, ) for the Crown ) and ) ) ) Mark McDougall ) J. Mason, Accused ) for the Accused ) ) ) Reasons for Decision ) July 23, 2014 ) C. Devine P.J. Reasons for Decision [ 1 ] I sentenced Mr. McDougall on July 16, 2014, granting him 1.5:1 credit for the time he had spent in custody. I indicated at the time that the reasons for allowing enhanced credit would follow. These are those reasons. [ 2 ] At the sentencing hearing, defence counsel requested that the time spent in custody by Mr.

McDougall be credited as part of his sentence, at the enhanced rate of 1.5 days for every day he had spent in custody. The Crown argued that Mr. McDougall was not eligible for enhanced credit, as his bail was revoked. The Crown relied on the decision of R. v. Perrier , (16 June 2014) Winnipeg (unreported) (Man. Prov. Ct.), a decision of my brother Judge Harvey. The defence relied on the reasoning in R. v.

Chambers , 2013 YKTC 77 , a decision of Judge Ruddy of the Yukon Territorial Court. [ 3 ] The broad issue engaged in this case is the relationship between the bail and sentencing provisions in the Criminal Code and the effect of the limiting provisions set out in the Truth in Sentencing Act.

The question I must answer in this case is a narrow one: whether an offender who has consented to revocation of his bail but does not bring a show cause hearing pursuant to s. 524(8), is disentitled from having his presentence custody enhanced at the rate of 1.5:1 at the time of sentencing. [ 4 ] While there is considerable legal authority on the issue of the relationship between the bail provisions and the sentencing provisions, there is very little authority on the question raised in this case, and in particular, there is no appellate authority on the question. [ 5 ] The issue has arisen in Manitoba in this Court and there have been decisions on both sides of the question.

It has also arisen in the Yukon Territorial Court, where it appears the Court is unanimous in deciding that enhanced credit is available in this circumstance. [ 6 ] This issue has taken on new importance recently because of the Supreme Court of Canada’s decision in R. v. Summers , 2014

SCC 26 , which recognized that unless the bail status of offenders fits into one of three exclusions, most offenders who have served presentence custody are eligible for enhanced credit at the rate of 1.5:1 in recognition of the fact that the time spent in presentence custody is not time for which earned remission is available. [ 7 ] The Truth in Sentencing Act which amended s. 719(3) dealing with the effect of presentence custody on sentence became part of the Criminal Code on February 22, 2010. Prior to that, sentencing judges had a wide discretion to take into account the time offenders spent in presentence custody under s. 719(3). The subsection read:

Section 719 Criminal Code before Bill C-25

(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. [ 8 ] It was common practise for judges to credit time spent in presentence custody at a rate of 2:1, as explained by Justice Arbour in R. v. W.(L.W.) , 2000 SCC 18 , where she stated at paragraph 45: ...

The often applied ratio of 2:1 reflects not only the harshness of the detention due to the absence of programs, which may be more severe in some cases than in others, but reflects also the fact that none of the remission mechanisms contained in the Corrections and Conditional Release Act apply to that period of detention. "Dead time" is "real" time.

The credit cannot and need not be determined by a rigid formula and is thus best left to the sentencing judge, who remains in the best position to carefully weigh all the factors which go toward the determination of the appropriate sentence, including the decision to credit. [ 9 ] At the same time however, the Supreme Court recognized that sentencing judges would often grant no credit or credit at a reduced ratio in cases where the offender repeatedly violated his bail conditions or committed the offence at issue while being on bail. ( W.(L.W.) at para. 39 , cited in R. v.

Beck , 2014 NWTTC 9 , at para. 24 ). [ 10 ] Parliament attempted to achieve two things in amending s. 719 by the Truth in Sentencing Act : first, to put a cap on the amount of time judges could credit for presentence custody and, secondly, to exempt those who were denied bail on the basis of their record or who breached bail conditions or committed indictable offences while on bail.

The wording of s. 719(3) and (3.1) is now as follows: 719(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 to be 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) . [Emphasis added.] [ 11 ] The applicable exemption in this case is 524(8), the subsection which exempts from consideration of enhanced credit the offender who was ordered to be detained in custody after a previous bail was revoked on the basis of breaching a bail condition or committing an indictable offence while on bail. [ 12 ] The process for revoking a previous bail is set out in s. 524(3) and (8) and reads as follows: Hearing 524(3) Where an accused who has been arrested with a warrant issued under subsection (1), or who has been arrested under subsection (2), is taken before a justice, the justice shall (

a) where the accused was released from custody pursuant to an order made under subsection 522(3) by a judge of the superior court of criminal jurisdiction of any province, order that the accused be taken before a judge of that court; or (

b) in any other case, hear the prosecutor and his witnesses, if any, and the accused and his witnesses, if any. Powers of justice after hearing 524(8) Where an accused described in subsection (3), other than an accused to whom paragraph (

a) of that subsection applies, is taken before the justice and the justice finds (

a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or (

b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him, he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10). [ 13 ] In the case of Mr.

McDougall, he consented to cancellation of his previous form of release, or “revocation” as it is referred to in practise, but did not initiate a show cause hearing at any time after his arrest and before he was sentenced. [ 14 ] The Crown argued simply that Mr. McDougall was ineligible for enhanced credit under s. 719 because he was implicitly detained in custody under s. 524(8). Mr. McDougall argued that he was not “detained” in custody under s. 524(8) because an order of detention had not been made - he did not run a show cause hearing or a bail hearing so therefore he could not have been ordered

detained. Thus he says he is not captured by s. 524(8) and is thereby eligible to apply for enhanced credit for his presentence custody. [ 15 ] The Crown stated that he was relying on Perrier , a decision of Judge Harvey of this Court. The

interpretation given to s. 524(8) in Perrier is that when the accused consents to revocation on the basis that he has breached his bail conditions or committed an indictable offence on bail, he is automatically not eligible for enhanced credit. For this, Judge Harvey relied on paragraph 39 of Summers where Justice Karakatsanis stated that Parliament restricted enhanced credit where offenders had been: denied bail primarily as a result of a previous conviction (s. 519(9.1)), those who contravened their bail conditions (ss. 524(4)(

a) and 524(8)(a), and those who committed an indictable offence while on bail (ss. 524(4)(

b) and 524(8)(b)). [ 16 ] I agree, as stated above, that Parliament’s primary purpose in passing the limiting amendment was to exempt from receiving enhanced credit many of these individuals, however, I respectfully disagree with Judge Harvey that the cited portion of Summers is determinative of the issue in this case. The Supreme Court did not have to interpret s. 524(8) and therefore did not.

Stating the purpose or motivation to enact legislation cannot be a substitute for interpreting its wording and effect. [ 17 ] The Supreme Court did not have the issue before it that is the live issue in these cases, which is when does “detention” crystallize within s. 524(8) such that the detention has the effect of exempting the offender from asking for enhanced credit at the time of sentencing.

This narrow issue relevant to this case has not been considered by the Supreme Court nor any appellate courts across the country and remains unresolved. [ 18 ] Two other decisions from this Court have come to opposite conclusions on the issue of when detention crystallizes in s. 524(8): R. v. Saunders , (13 December 2011) Winnipeg (unreported) (Man. Prov. Ct.), and R. v. Cook , (4 July 2014) Winnipeg (unreported) (Man. Prov. Ct.). [ 19 ] In Cook , Judge Wiebe determined that when revocation issues, the order of detention is complete.

She stated at page 18 of the decision: If the Crown satisfies the requirements of

section 524 so that revocation is granted, the Code clearly states that granting revocation is accompanied by a simultaneous order of detention. . .

The accused still has an opportunity to bring the matter back and argue against the detention but in the meantime they have been ordered detained by virtue of the language in the Criminal Code . [ 20 ] Judge Wiebe’s view is that the detention of the accused crystallizes simultaneously with the decision by the judge or the consent of the accused, to revoke the previous bail. [ 21 ] This issue was dealt with three years earlier by Judge Chapman prior to the Supreme Court’s decision in Summers , in the case of Saunders . [ 22 ] Judge Chapman’s view is that detention does not crystallize at the point of revocation.

The crux of her decision is at pages 5 and 6 where she explains that when an accused consents to revocation, which is the language of the procedure unanimously used in the Manitoba Provincial Court, he is agreeing to cancellation of the previous form of release and he is remaining in custody until he initiates a show cause hearing for his release. [ 23 ] Judge Chapman also pointed out that there has never been a judicial determination of what constitutes a reasonable time for the accused to show cause why he should not be detained.

By the time of Saunders , Judge Chapman recognized that, “In fact, many accused never make the application for that hearing.” (at page 6) [ 24 ] Judge Chapman had before her the form utilized in the Provincial Court which clearly reflects or contemplates that revocation and detention are not simultaneous: In this case, as in many cases, the accused’s lawyer, on behalf of the accused, consented to that revocation.

This is done by completing a formed entitled “Crown and Defence Agreed Bail Conditions.” And to be accepted by the justice, the form must indicate the following: A box entitled “existing bail” was checked, the “date of the order to be revoked”, the “name of the judged or justice that made the order” originally and a box entitled “is revoked” is checked.

There is an additional check box entitled “524(8) - endorsed on the record” and that particular box was not ticked off in this case. [ 25 ] While a form used by a court is not determinative of the issue of how a statute should be interpreted, it does show that the Manitoba Provincial Court has been operating since 2010 on the basis that revocation and detention are separate occurrences. Indeed, as Judge Chapman indicated in her decision from 2011, no objection to this procedure, or, I would say,

interpretation, had been taken prior to Saunders . And it had not been raised in the intervening three years since 2011, until last month, when the Crown resurrected the argument dismissed in Saunders . [ 26 ] I believe Judge Chapman’s decision in Saunders was correct. [ 27 ] When an accused consents to revocation of his bail, as is common in this jurisdiction, he is dispensing with the need for the judge to make a finding at stage one of s. 524(8) that he has breached a condition of his bail or that there are reasonable grounds to believe he has committed an indictable offence.

Therefore, the cancellation of the summons, appearance notice, promise to appear, undertaking or recognizance is automatic. [ 28 ] That is all. [ 29 ] A hearing where the accused may show cause why he should not be detained is delayed or remanded until the accused initiates such a hearing, if ever. [ 30 ] In addition to the fact that this

interpretation has implicitly been endorsed by the Court and accepted by every accused person

and prosecution before the Court since the Truth in Sentencing Act became law in February 2010, with Saunders confirming the

interpretation in 2011, I believe this is the correct

interpretation for three other reasons: 1. It is consistent with the spirit of Summers ; 2. It is a constitutional

interpretation, while the converse is true of an

interpretation that would equate detention with revocation; and 3. It leads to consistency of application with the other exemption in s. 524(8), the prisoner who is denied bail on the basis of his past record. 1. Consistent with the spirit of Summers [ 31 ] The Supreme Court determined that the enhanced credit provision in s. 719(3.1) should be given a broad

interpretation to reflect that “crediting a single day spent in a remand centre is often insufficient to account for the full impact of that detention, both quantitatively and qualitatively.” (at para. 1) Thus, the Supreme Court decided that allowing for enhanced credit where “the circumstances justify it” includes the loss of eligibility for parole and statutory release. In interpreting the statute thus broadly in favour of the accused, the Supreme Court held that if Parliament wanted to limit the “circumstances” justifying enhanced credit, it would have done so expressly. (at paras. 7 and 55-56) [ 32 ] I would argue that similarly, if Parliament intended to give an

interpretation to s. 524(8) that would alter the long-standing understanding and practise of allowing accused persons whose bail was revoked to apply for enhanced credit, Parliament would have amended the bail provisions. [ 33 ] Another basis on which the Supreme Court in Summers gave s. 719(3.1) a broad, liberal

interpretation is that it is consistent with the overall sentencing scheme in the Criminal Code . (see paras. 59–67) A limiting

interpretation of s. 524(8) would potentially offend the principles of parity and proportionality in sentencing where it affected vulnerable and impoverished offenders and Aboriginal offenders who are “more likely to be denied bail and make up a disproportionate share of the population in remand custody.” Not only are such people less likely to be able to assure a judge that they will not flee or reoffend by depositing money, or presenting sureties who can supervise, on the same basis, they are less likely to show cause why they should not be detained under s. 524(8). 2. It is a constitutional

interpretation [ 34 ] It is trite law that legislation must be given a constitutional meaning. An accused person’s right to bail is constitutionally protected in s. 11(

e) of the Charter . In my view, an

interpretation of s. 524(8) that would have the effect of circumscribing the breadth of the right to bail without an explicit limitation stated in the statute, cannot stand. The wording of the revocation portion of s. 524(8) is again, as follows: . . . he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10). [ 35 ] The

section does not state what “a reasonable opportunity to do so” means. If Parliament had intended that the accused must show cause within a particular period of time, Parliament would have included a time limit in the amendment. I expect that Parliament did not, because such a statutory provision would not meet constitutional muster. In this regard, I find the decision of Judge Ruddy in Chambers most persuasive as it deals in a purposive manner not only with the amendments to sentencing in s. 719(3.1), but also with the bail provisions in the Criminal Code . She states: It must be remembered that the right to bail as enshrined in s. 11(

e) of the Charter is the right of the accused. The notion of affording the accused a "reasonable opportunity" to show cause must be understood within this constitutional framework. Recent decisions out of the Ontario Superior Court of Justice have considered the question of whether an accused can be forced on to a bail hearing. In R. v. Hudson , 2011 ONSC 5176 , (Ont. S.C.J.) , Trotter J. stated the following: [18] ...Part XVI was never designed to force an accused person into a hearing on such an important issue at an ill-advised or inopportune time.

Section 516 places strict constitutionally guarded limitations on how long the Crown may seek to delay or postpone a bail hearing. But there is no corresponding limitation on how long an accused person may delay exercising his or her right to apply for bail. ... After canvassing some of the legitimate reasons an accused may wish to postpone his or her bail hearing, he went on to conclude: [19] ... For various reasons, an accused person may not wish to seek bail immediately, or even in the near future. And there is nothing wrong with this.

There is no competing constitutional principle that requires the accused to seek release within a time frame set by the Crown. Similarly, and stemming from this, there is no justification for requiring an accused person to waive his or her rights under s. 11(

e) of the Charter in order to suit the scheduling exigencies of the trial court. The same goals can be achieved in a different manner, one that better respects the right to bail. In R. v. Reed , 2013 ONSC 4247 , (Ont. S.C.J.) , Goodman J. adopted the reasoning in Hudson and confirmed: [21] The right to reasonable bail under the Charter confers a constitutional entitlement to an accused person. Thus an accused is not required in law to immediately pursue any or all of his or her rights at the behest of the Crown or for the general efficiency of the administration of justice. An accused is entitled to every reasonable opportunity to have a show cause hearing pursuant to

Part XVI of the Code . I agree with Trotter J. and find that there is no legal or statutory compulsion upon the accused to either "run" a show cause hearing, waive bail or consent to detention if he or she does not wish to do so. I would adopt the reasoning in both Hudson and Reed as it relates to s. 524(8). Notwithstanding the use of the phrase "reasonable

opportunity" to show cause, there is nothing in s. 524(8) to suggest that there is a time limitation under which the accused must proceed to show cause, and failing which he or she will be deemed to have been detained pursuant to s. 524(8). Such an

interpretation would be contrary to s. 11(

e) of the Charter , in my view. "Reasonable opportunity" must be interpreted as conferring the right to a full and fair hearing into the question of bail, and not as importing a time limitation on the right to seek bail. Mr. Chambers has chosen, as is his right, not to proceed to a bail hearing. He has, instead, consented to his remand. I find that he was never detained pursuant to s. 524(8).

I further find that it would be improper for me to treat him as if he had been detained following a bail hearing either by applying the reasoning in Atkinson or on the basis he has somehow lost his "reasonable opportunity" to show cause by virtue of the passage of time. (at paras. 63 – 68)[Emphasis added.] 3. Consistency of Approach [ 36 ] Finally, an

interpretation that does not equate detention with revocation also leads to consistency rather than inconsistency among the group of prisoners targeted by Parliament in s. 719(3.1). The other exempted group for enhanced credit are offenders who have been denied bail on the basis of their criminal record. If that accused does not apply for bail while he is in custody, he is nonetheless eligible to received enhanced credit for the presentence custody. [ 37 ] An

interpretation that would “deem” detention at the time of revocation or some reasonable time thereafter (which is not defined) would result in inconsistent results, depending on whether the accused was a person with a bad record or a person who breached their bail or committed an offence while on bail. Clearly, Parliament did not intend that these two groups of offenders should be treated differently under s. 524(8). [ 38 ] For the foregoing reasons, I determined that Mr. McDougall was not ineligible to apply for enhanced presentence credit at the time of his sentencing hearing. Original signed by Judge C. A. Devine P.J.