R. v. Johnson, 2011 ONCJ 77

ONTARIO COURT OF JUSTICE (Old City Hall – Toronto) BETWEEN: ) HER MAJESTY THE QUEEN ) ) ) ) ) Kevin Wilson and Niall Gilks For the Crown/Respondent ) — AND — ) ) ) MARVIN JOHNSON — AND — CRIMINAL LAWYERS’ ASSOCIATION OF ONTARIO (i ntervener ) ) ) ) ) ) ) ) ) ) ) ) ) ) Corbin Cawkell and Kristin Bailey For the Defendant/Applicant Russell Silverstein For the Intervener ) ) ) Heard: May 4 and November 5, 8 and 17 and December 3, 2010 Citation: R. v. Johnson , 2011 ONCJ 77 REASONS FOR RULING (Re Criminal Code Subsections 719(3) and (3.1)) and REASONS FOR SENTENCE TABLE OF CONTENTS Paragraph Number A. GENERAL INTRODUCTION …………………………………………….. 1

B. LEGISLATION AT ISSUE …………………………………………………. 9 C. SITUATING THE APPLICATION ................................................... . 11 (

a) Introduction…………………………………………………… 11 (

b) In the Beginning: Pre-Sentence Custody…………………… 17 (

c) Counting “Dead Time”………………………………………. 30 (

d) The Evolution of Credit for Pre-Sentence Custody………… 36 (

e) Considering Strict Bail Conditions on Sentencing………… . 42 D. THE EVIDENCE …………………………………………………………… 47 (

a) Introduction……………………………………………………. 47 (

b) The Applicant…………………………………………………. 49 (

c) The Bigger Picture: Systemic Considerations and Their Impact on the Applicant………………………………. 53 (

i) Introduction……………………………………………. 53 (ii) A Criminological Overview………………………… . 54 (iii) The Applicant’s Remand Experience…………………. 67 (iv) Availability of Treatment in Provincial Facilities…… 73 (

v) The Federal Correctional System…………………….. 74 E. LEGISLATIVE FACTS: THE PARLIAMENTARY DEBATES AND COMMITTEE HEARINGS ……………………………………….……… 80 (

a) Introduction…………………….………………………..…… 80 (

b) Parliament’s Objectives in Passing Bill C-25……………..…. 82 (

i) Transparency and Institutional Integrity ……………… 84 (ii) Crime Control and Public Safety ……………………… 89 (iii) Preventing Abuses and Facilitating Remand and Court Efficiencies …………………………………. 95 (c) “If the circumstances justify it”…………………...………….. 100 F. ANALYSIS .......................................................................................... 107 (

a) Introduction…………………………………………………….. 107 (

b) The Jurisdictional Issue……………………………………….. 109 (

i) Introduction…………………………………………….. 109 (ii) Jurisdiction and Remedies in the Charter Context…… 110 (iii) The Sub-s. 719(3.1) Limitations on Enhanced Credit… 115 (

c) The Charter Issues……………………………………………… 120 (

i) Introduction…………………………………………….. 120 (ii)

Section 15: Equality……………………………………. 127 (iii)

Section 7: “Life, Liberty and Security of the Person”… 132

1. Introduction……………………………………… 132 2. Proportionality: The “Fundamental Principle” of Sentencing…………………………… .135 3. Parity…………………………………………… …141 4. Applying the Constitutional Standard: “Gross Disproportionality”……………………… …144 5. Arbitrariness and Overbreadth…………………… ..152 (

d) Reading

Section 719. …………………………………… …….160 (

e) Resolving Ambiguity: The Meaning of “if the circumstances justify it” ……………………………………. 169 (

i) Introduction …………………………………………. 169 (ii) The Rule in Slaight ………………………………….. 170 (iii) Interpreting Penal Statutes …………………………. 174 (iv) “Exception” ………………………………………… 176 (

v) The Parliamentary Record ………………………… 180 (vi) Conclusions as to Ambiguity ……………………… 182 (

f) Pre-Sentence Custody Credit as Compensation …………. 183 (

g) Pre-Sentence Custody as Mitigation ……………………… 186 G. THE SENTENCE APPEAL ……………………………………………… 190 H.

SUMMARY ........................................................................................ 198 I. CONCLUSION …………………………………………………………… 200 MELVYN GREEN, J.: A. GENERAL INTRODUCTION [ 1 ] The accused Marvin Johnson sold $20 worth of cocaine – a fifth of a gram – to an undercover officer in Toronto on February 26, 2010. He was arrested the same day and held pending a bail hearing. He consented to his detention on March 11 th . He pled guilty to trafficking in cocaine on May 4 th and adjourned the matter for sentencing.

He has been in custody at the Toronto Jail since his arrest – some twelve months in total. [ 2 ] The offender has a lengthy record for similar offences. Crown and defence counsel jointly submit that the appropriate disposition for the offence to which he has pled guilty is an effective sentence of eighteen months – less whatever credit I extend the offender for his pre-sentence custody. The quantum of that credit and the mechanism by which it is to be calculated are matters of fundamental dispute. [ 3 ] The offender is both aboriginal and black.

On February 22, 2010, four days before his arrest, Criminal Code amendments originally introduced in 2009 as Bill C-25 came into force. These amendments, cited as the “ Truth in Sentencing Act ” (TIS), limit the credit that may be granted an offender upon sentencing to, at most, one day for each day of his or her pre-sentence custody or, “if the circumstances justify it”, 1.5 days of credit for each day of pre-sentence custody served by the offender. Prior to February 22, 2010, the conventional metric for the credit applied to pre-sentence custody on sentencing was 2:1.

The offender (hereafter, the Applicant) asserts that the new legislation violates a number of his Charter-protected rights, in particular his s. 15 equality rights and his s. 7 right to liberty and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 4 ] To vindicate these rights and to permit me to at least consider granting more enhanced credit for his pre-sentence custody than that permitted by TIS, he has applied to have two provisions of the Bill C-25 amendments – now sub-ss. 719(3) and (3.1) of the Code – ruled of no force or effect pursuant to s. 52 of the Charter.

These new s. 719 provisions read:

(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). [ 5 ] A plain reading of sub-s. 719(3.1) makes clear that the opportunity for enhanced pre-sentence custody credit afforded by its application is unavailable to those offenders whose circumstances are embraced by several other Criminal Code provisions.

The first, sub- s. 515(9.1) , covers any accused persons who a justice has ordered detained pending his or her trial “primarily because of his previous conviction”; this provision, which was also added to the Criminal Code through Bill C-25, requires the justice to record this reason where it is the primary basis of an accused’s detention pending his or her trial.

The reference to sub-ss. 524(4) and (8) effectively excludes from the scope of sub-s. 719(3.1) those persons who were released on bail and then subsequently ordered detained pending their trials as the result of a justice finding they had committed a fresh indictable offence or had contravened or were about to contravene the terms of their original interim release orders. [ 6 ] The burden of establishing that the challenged legislation infringes his guaranteed rights falls to the Applicant on a balance of probabilities.

If he succeeds on any footing, the burden then shifts to the Respondent to establish that the impugned legislation constitutes a “reasonable limit” on the Applicant’s guaranteed rights, as set out in s. 1 of the Charter. I shall have occasion to return to these procedural considerations and the construction of the relevant Code and Charter provisions in due course. [ 7 ] The intervener, the Criminal Lawyers’ Association of Ontario, supports the Applicant’s challenge to the vires of the amended provisions. [ 8 ] My ruling and reasons respecting this application and the appropriate sentence follow.

An inevitably fractured gist of these Reasons may be found in the introduction to “Situating the Application” (paras. 11-16), a segment (paras. 26-29) of “In the Beginning: Pre-Sentence Custody”, the parts titled “Reading

Section 719” (paras. 160-168), “Conclusions as to Ambiguity”, “Pre- Sentence Custody Credit as Compensation” and “Pre-Sentence Custody Credit as Mitigation (paras. 182-189), and, finally, the “Summary” and “Conclusion” (paras. 198-202). B. THE LEGISLATION AT ISSUE [ 9 ] The Applicant attacks the constitutional propriety of two sub-sections of s. 719 of the Code, as earlier noted. Proper consideration of this challenge requires attention to the entire provision and in comparison with the statutory language that preceded its enactment. The precursor and current iterations of s. 719 are set out immediately below: S. 719 Prior to Bill C-25 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 any provision 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 in custody by the person as a result of the offence. S. 719 After Bill C-25 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 any provision 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 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. Exception

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is

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 or shall be deemed to be resumed, as the case may be, on the day on which the convicted person is arrested and taken into custody under the 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, no time 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. 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). 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 the sentence 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 or shall be deemed to be resumed, as the case may be, on the day on which the convicted person is arrested and taken into custody under the 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, no time 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. [ 10 ] As this table illustrates, the only clause in the earlier version of s. 719 affected by Bill C-25 is sub-s. (3). Prior to Bill C-25 coming into force, sub-s. 719(3) afforded sentencing judges a broad grant of discretion as regards their treatment of pre-sentence custody. The amendments replace that single clause with a pair of formulae that sets limits on remand credit and, in addition, direct the articulation and recording of such credit.

As noted, the only other provision in Bill C-25 added a new clause – now sub-s. (9.1) – to s. 515 of the Code. This new provision is referenced in sub-s. 719(3.1) as a limiting condition on access to enhanced pre-sentence custody credit. Section 515(9.1) obliges justices ordering a defendant detained pending trial “primarily” as a result of his or her prior convictions to record this reason. The pertinent portion reads:

(9.1) … if the justice orders that the accused be detained in custody primarily because of a previous conviction of the accused, the justice shall state that reason, in writing, in the record. C. SITUATING THE APPLICATION (

a) Introduction [ 11 ] Persons found guilty of criminal offences are punished for their crimes. The judicial process of imposing a fit punishment is called sentencing. Where it includes imprisonment, sentencing is typically part of a larger and interdependent scheme that includes judicial decisions made before and administrative decisions made after the actual act of sentencing. [ 12 ] The punishment imposed on those convicted of criminal offences frequently includes a period of incarceration. Sometimes offenders are detained in custody pending their trial and, if found guilty, sentencing.

Where a period of detention precedes sentencing the question inevitably arises as to what credit, if any, towards the appropriate sentence should be assigned to the offender’s pre-sentence custody? Put otherwise: what period of time should be deducted from an otherwise fit sentence for the offender’s crime or crimes by virtue of the period he or she has already spent in custody pending the imposition of that sentence?

In consideration of lost remission and parole opportunity and the often congested and otherwise onerous conditions of remand custody, the answer generally provided by Canadian courts before the enactment of Bill C-25 was a somewhat flexible two days of credit for every day of pre-sentence detention. The Applicant says that Parliament’s answer to this same question, as expressed in the TIS amendments, runs afoul of his Charter- guaranteed rights.

The Respondent says, in effect, that TIS is no more than one policy choice among an array of constitutionally compliant alternatives. [ 13 ] As a result of parole and remission law and policy, only a miniscule proportion of incarcerated offenders actually serve their entire sentences in custody.

Approximately 95% of imprisoned offenders receive reformatory-length sentences – that is, sentences served in provincial prisons (called “reformatories”), which can be no lengthier than two years less a day; indeed, more than 90% of these reformatory sentences are for periods of less than six months that, as a matter of provincial law and administrative practice, are not amenable to routine parole consideration.

The very vast majority of those serving reformatory sentences in Ontario are released on “remission”, without terms or conditions, at approximately the two-thirds point in their sentence. “Remission”, to be clear, is an abatement of sentence, as dictated by provincial legislation and practice, which almost every inmate serving a reformatory length sentence “earns” by merely avoiding disciplinary offences while in prison. (See Ministry of Correctional Services Act, R.S.O. 1990, c. M. 22, ss. 1, 28 and, esp., 28.1.) In the vernacular, remission is time off for good behaviour.

It is also a long-settled part of the correctional landscape: More than two decades ago the practice of remission was noted as having “existed in Canadian law for many years”: now- Justice David Cole and Allan Manson, Release from Imprisonment: The Law of Sentencing, Parole and Judicial Review , Carswell, 1990, at pp. 255-6. [ 14 ] Persons sentenced to two years or greater serve their sentences in federal penal institutions or “penitentiaries”. About half of those serving determinate federal-length sentences are released at the two-thirds – or “statutory release” – point of their sentences.

The other approximately fifty percent are released earlier by way of parole. Only two to three percent of federal prisoners serve every day of their sentences before being released. Unlike reformatory prisoners, all federal offenders released before the expiration of their sentences are governed by conditions that, subject to variation, remain in effect until they have completed the full term to which they were sentenced.

Further, many early federal parolees are required to live in halfway houses or other supervised housing during at least the initial portion of their parole. [ 15 ] Although somewhat opaque to those unfamiliar with the routine practice of criminal law, none of the methodology by which carceral sentences are calculated, administered and served is hidden or even obscure. It is a product of statute, regulation and settled precedent.

The credit given detained offenders for their pre-sentence custody routinely informs judicial sentencing pronouncements and the systemic workings of remission and parole are publically available on-line and in the reports of correctional agencies, the responsible ministries and Statistics Canada. Further, sentencing hearings are conducted in open courts that are readily accessible to any member or the public. [ 16 ] Persons sentenced to jail almost always receive some credit for any time – “dead time” as it is often called – they spend in pre- sentence custody.

Pursuant to remission legislation and parole board decisions, they are almost invariably released from prison prior to the formal expiration of their sentences. It is these three elements – the amount of credit assigned pre-sentence custody (if any) on sentencing, the length of a judicially imposed sentence of imprisonment, and remission and parole legislation and policy – that together compose the interdependent scheme governing the duration of the period of custody actually served by offenders sentenced to jail in Canada. (

b) In the Beginning: Pre-Sentence Custody [ 17 ] At its simplest, persons charged with criminal offences are summoned to attend court, or arrested and then released with or without conditions by the arresting police force pending his or her first court appearance, or held for a “show cause” (bail) hearing conducted before a judicial officer (a judge, or more typically in Ontario, a justice of the peace). The purpose of a show cause hearing is to determine whether an accused should be released on bail (called “judicial interim release”) pending his or her trial and, if so, on what terms and conditions.

Although other considerations may sometimes cloud the field, the central issues at a show cause hearing are usually whether the defendant is likely to appear in court when required to do so and whether he or she is likely to commit further offences or otherwise interfere with the administration of justice if released on bail. [ 18 ] The show cause burden of establishing whether an accused person should be detained in custody or released pending trial may fall on the Crown or on the defendant depending on a number of factors set out in the Criminal Code .

Practically speaking, and irrespective of which party bears the onus, an accused’s chances of release almost always depend on his or her criminal record (especially respecting compliance with previous court orders and the occurrence of like offences), the existence of other outstanding charges, the gravity of and violence associated with the immediate charges, their potential penal consequence, the strength of the

defendant’s nexus to the community and the availability of personal guarantors – “sureties” – who are willing and demonstrably able to supervise the defendant while on bail and back-up their assurances with meaningful financial pledges which they risk forfeiting upon breach of any of the terms of release. [ 19 ] The Applicant, Marvin Johnson, consented to his pre-sentence custody. His circumstances – including his record for similar offences and failing to comply with prior recognizances – were such that bail was unlikely absent a release plan that included reliable community supervision.

In consenting to his detention his counsel noted, “He doesn’t have any sureties here today. He doesn’t seem to have any prospect of having one soon”. A further application for bail, following the conclusion of the hearing of this application and pending the imposition of sentence, was withdrawn for the same reason. [ 20 ] The Applicant’s situation closely parallels that of many accused persons ordered detained in custody pending their trials.

Those with prior criminal involvement, a history of instability or unemployment, attenuated connections with the community and few if any reliable potential sureties are disadvantaged when it comes to securing bail. These persons are very often the poor, marginalized, homeless or mentally distressed. The Bail Reform Act, S.C. 1970-71-72, c. 37, was intended, among other objectives, to more fairly and equitably deal with accused persons seeking bail and to facilitate their judicial interim release pending trial.

Now, nearly 40 years after its enactment, the hard reality is that provincial jails contain more persons awaiting trial than sentenced offenders (nearly twice as many in Ontario) and the national remand population increases every year: see L.

Barr-Telford, “Bill C-25: Presentation to the Standing Senate Committee on Legal and Constitutional Affairs”, Statistics Canada, September 16, 2009, at pp. 19-20. [ 21 ] Professor Michael Weinrath, of the Criminal Justice Department at the University of Winnipeg, has recently summarized the statistical evidence profiling remand populations (“Inmate Perspectives on the Remand Crisis in Canada” (2009), 51 Canadian Journal of Criminology and Criminal Justice 355, at pp. 356 and 357): Given Canada’s declining crime rate, it seems reasonable to assume that the number of people incarcerated will have diminished as well.

Sadly, custody numbers have not seen a commensurate drop. Over the past 20-year period, 1986 to 2006, the overall crime rate declined 25%. During that time, the number of people incarcerated on any given day actually increased by 23%.

Even more disturbing is a huge increase in the use of pre-trial detention. … Over the past decade the Canadian Centre for Justice Statistics (CCJS) has diligently assessed crime rate, court process, and corrections data to chart a striking upward remand trend. [Between fiscal years 1986-87 and 2005-06, there was] an increase of over 190% in remands and decline of 20% in sentenced offenders.

While the 20-year trend is striking, the accelerated growth of remand in the last 10 years is even more remarkable. [Citations omitted.] See, also, “Corrections and Conditional Release Statistical Overview 2009”, Public Safety Canada Portfolio Corrections Statistics Committee , December 2009, which reports, at p.1, that the Canadian crime rate has significantly declined over the past two decades, property crimes decreasing by 50% since 1991 and violent crimes by 14% since 1992. (The Committee is a joint endeavour of the Department of Public Safety Canada, the Correctional Service of Canada, the National Parole Board, the Office of the Correctional Investigator and the Canadian Centre for Justice Statistics (Statistics Canada).) [ 22 ] Some accused persons denied bail almost immediately enter pleas of guilty.

However, for many if not most detained defendants, weeks, often months and, for about 1% of these persons, more than a year may pass before they eventually reach their trial date. They usually need to retain counsel and, in most cases, apply for and, in Ontario at least, be approved by the provincial legal aid plan before they can do so. They may, quite understandably, wish to review the Crown’s disclosure brief with their lawyers and assess the strength of the case against them. Their progress may be tied to that of co-defendants whose decisions, and their pace, may hold their own fate hostage.

Prudent defence counsel may conduct pre-trial meetings with counsel for the Crown and, in many cases, with a case- management judge in an effort to negotiate a satisfactory resolution to the matter or, at a minimum, streamline its prosecution.

There may be good reason to await the results of forensic testing or the generation of expert opinions or, where the case proceeds by way of indictment, to conduct a preliminary inquiry. [ 23 ] Those minded to resist the prosecution’s allegations soon learn that the earliest available trial dates, at least in the major urban centres in Ontario, are usually months in the future, even for those in custody and who seek an immediate trial.

In short, while some persons denied bail may consciously postpone the resolution of their proceedings to secure a reduced sentence when they do finally plead guilty, for most the protraction of their pre-trial custody is a function of factors beyond their direct control, including limited personal and state resources, disclosure delays, case management decisions, administrative realities, and a myriad of other and often inevitable interruptions that accompany the voyage from arrest to trial.

The most “compelling explanation”, says Professor Weinrath ( supra , at p. 359) for the protraction of pre-sentence custody, “is that it now takes much longer on average to get to trial in Canada, which then results in more cases with lengthy remand”. (See, also, R. Kong and V. Peters, “Remand in Adult Corrections and Sentencing Patterns”, Juristat , Vol. 28, No. 9, October 2008, Statistics Canada, at p. 7.) Justice Patrick LeSage and now-Justice Michael Code identified at least some of the institutional drivers of delay generally in their Report of the Review of Large and Complex Criminal Case Procedures (Q.P.

Ont., 2008; avbl. at http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/lesage_code/lesage_code_report_en.pdf), at pp. 7 and 14: … there were three major events that played a significant role in transforming the modern criminal trial, from the short efficient examination of guilt or innocence that existed in the 1970’s, to the long complex process described [earlier].

These three causal events were the passage of the Charter of Rights and Freedoms , the reform of evidence law by the Supreme Court of Canada, and the addition of many new complex statutory provisions to the Criminal Code and other related statutes. … … the convergence of all three of these major developments , during a discrete period of time in our history, has placed an enormous burden on the trial courts. … Cumulatively, their impact on trial length, efficiency and delay has been very significant. [Emphasis added.]

[24] Although the subject of much speculation, no reliable empirical research draws a causal connection between the growth in thisremand delay and deliberate procrastination on the part of accused persons awaiting trial. Professor Weinrath’s preliminary work amongprisoners at a single facility suggests that “a small percentage” of remand inmates “manoeuvre for two-for-one credit”.

However, as hemade clear in his presentation to the Senate Standing Committee on Legal and Constitutional Affairs (September 17, 2009, at pp. 13:60-62 and 13:70-72), he did not consider this a significant cause of either pre-trial delay or the inflation of the remand population, and heinvited systematic research into what he viewed as a still-unanswered question. [25] Some persons denied bail are legally innocent and are only able to demonstrate their innocence (or at least resist a finding ofguilt) at trial – when the criminal justice system finally affords them one.

Indeed, a significant proportion of those persons ordereddetained pending their trial are ultimately acquitted or their charges are stayed or withdrawn by the Crown. (Ontario data from the mid-1990s indicate that almost one out of five accused persons ultimately found not guilty at trial had been denied bail: M.

Gittens and D.Cole, Co-Chairs, Report of the Commission on Systemic Racism in the Ontario Criminal Justice System: Queen’s Printer for Ontario,1995, at p. 123.) The remainder – the vast majority of those detained pending trial – either plead guilty to some or all of the charges theyface or are convicted after their trials. (Historical data recently summarized by the Supreme Court in Toronto Star Newspapers Ltd. v.Canada, 2010 SCC 21 , [2010] 1 S.C.R. 721, at paras. 10-11, highlights the “negative impact” of pre-trial detention on thechances of acquittal.) The credit assigned convicted offenders’ pre-trial custody is of crucial importance for all members of thisdemographic, but particularly for those who are ultimately sentenced to further terms of imprisonment. [26] The purpose of pre-trial detention is the preservation of community safety and the integrity of the judicial process – notpunishment.

This distinction, although of analytical importance, is likely too fine or abstract to be fully appreciated by most inmatesexperiencing any form of custody. It is not without some irony that remand prisoners, all of whom are legally if not factually innocent,generally endure the most onerous of penal conditions in Canada. In R. v. McDonald (1998), (ON CA), 127 C.C.C.(3d) 57 (Ont. C.A.), at para. 48, Rosenberg J.A. commented, that, “to pretend that pre-sentence imprisonment does not occasion a severedeprivation and that it is not punitive would result in a triumph of form over substance”.

Justice Arbour adopted much of Rosenberg,J.A.’s reasoning in McDonald on behalf of a unanimous Supreme Court in R. v. Wust, 2000 SCC 18 , [2000] 1 S.C.R. 455.

Sheadded, at para. 41, that, To maintain that pre-sentencing custody can never be deemed punishment following conviction because the legal system does not punishinnocent people is an exercise in semantics that does not acknowledge the reality of pre-sentencing custody … …while pre-trial detention is not intended as punishment when it is imposed, it is, in effect, deemed part of the punishmentfollowing the offender’s conviction, by the operation of s. 719(3). [Emphasis in original.] Significantly, Justice Arbour employs the word “punishment” rather than “sentence” in discussing the effect of s. 719(3).

Herreasoning throughout these passages is in no way affected by the Bill C-25 amendments. [27] There are several important distinctions between pre-trial custody and the imprisonment that follows the imposition of asentence. They fall into two broad categories, one quantitative and the second qualitative. The first, the quantitative dimension, reflectsthe fact that, in Canada, the various statutory and administrative mechanisms that almost always result in significant abbreviation of aprisoner’s custodial sentence do not apply to or incorporate the inmate’s period of pre-sentence custody.

One near universal mechanismis sentence remission. A second is parole, whereby prisoners may be released into the community to there complete their sentencessubject to conditions imposed by parole boards. Not even nominal remission attaches to pre-sentence custody, nor is such custodyconsidered in calculating parole eligibility.

By way of simple illustration, a convicted offender sentenced to six months in a provincialreformatory is effectively credited with a half-day of remission for every day of served sentence and, as a result, will be released uponhaving served no more than four months (that is, two-thirds) of his or her custodial disposition. On the other hand, an accused whospends six months in pre-trial custody serves every day of those six months.

If convicted and then immediately sentenced to “timeserved” or a single further day in jail, he will have served a 50% longer sentence of imprisonment than that ultimately served by anoffender with identical antecedents who is granted bail and later sentenced to six months incarceration for the very same offence. [28] The second distinction between pre- and post-sentence custody rests on the nature or quality of the detention. Prisons, be theyprovincial or federal, have a variety of educational, counselling, treatment, training and educational programs.

Similar programs areconspicuously absent or severely rationed in “remand centres” or “remand units” in mixed jails, the terms applied to those provincialfacilities in which defendants denied bail are detained. Remand centres are also notoriously overcrowded and, unlike prisons, lackrecreational and athletic programs and afford only very limited access to the outdoors and related amenities.

Remand custody isnotoriously “hard time” and, in light of the paucity of facilities and programs, rightly described as “dead time”. [29] These comments echo those made by Justice Laskin for the Court of Appeal almost fifteen years ago in the oft-cited case ofR. v. Rezaie (1996), (ON CA), 112 C.C.C. (3d) 97, at para. 25: … in two respects, pre-trial custody is even more onerous than post-sentencing custody. First, other than for a sentence of lifeimprisonment, legislative provisions for parole eligibility and statutory release do not take into account time spent in custody before trial(or before sentencing).

Second, local detention centres ordinarily do not provide educational, retraining or rehabilitation programs to anaccused in custody waiting trial. For these reasons, pre-trial custody is commonly referred to as "dead time", and trial judges, indeciding on an appropriate sentence, frequently give credit for double the time an accused has served. See also R. v. Wust, supra, at para. 28. (

c) Counting “Dead Time” [30] In theory at least, many of the complications and consternation surrounding the proper calculation of the credit to be assignedpre-sentence custody could be eliminated by antedating the start-point of an offender’s sentence remission and parole eligibilityassessment to the commencement of his or her detention so as to take into equal account each day of the person’s pre-sentence custodyreferable to the offence or offences at issue. Indeed, this is the approach directed by the Criminal Code in respect to convictionsattracting sentences of imprisonment for life. Murder, for example, carries a mandatory penalty of life-imprisonment, but the calculation

of that imprisonment for purposes of determining parole eligibility, as prescribed by s. 746, must include “any time spent in custodybetween … the day on which the person was arrested and taken into custody in respect of the offence … and the day the sentence wasimposed”. Put more simply: the parole eligibility clock in the case of a murder conviction (or any offence resulting in a sentence of lifeimprisonment) begins to tick on the day the offender is first taken into custody.

Each day of an offender’s custody attributable to theoffence – be it before or after the imposition of a life sentence – is weighed equally in determining his or her parole eligibility. [31] No sentence other than imprisonment for life is treated in this manner for sentence or parole calculation purposes. Indeed, s.719(1) of the Code expressly provides that, “A sentence commences when it is imposed, except where a relevant enactment otherwiseprovides” – language almost identical to the precursor provision that entered the Criminal Code approximately forty years ago: S.C1968-69, c. 38, s. 70.

The only directly “relevant enactment” affording an exception to this rule is that pertaining to sentences of lifeimprisonment. All other sentences – including, of course, that to be awarded the Applicant – begin only on the day they are imposed. [32] The approach to sentence calculation dictated by the Code is consistent with its common law heritage.

In reviewing the relevant jurisprudence extending back to the late-18th century, Queens University Law Professor Allan Manson notes that “courts accepted the proposition that sentences commenced when imposed, and in the 20th century the English Court of Appeal consistently heldthat the common law did not empower courts to ‘ante-date’ a sentence”: “Pre-Sentence Custody and the Determination of a Sentence (OrHow to Make a Mole Hill out of a Mountain)”, (2004), Criminal Law Quarterly 292, at 296. (See also Gilbert v. R. (1974), 60 Crim.App. R. 220 and D.A.

Thomas, Principles of Sentencing, 2d Ed., London: Heinemann, 1979, at p. 385.) According to Professor Manson,the dominant appellate view in Canada, particularly in Ontario, was also one of resistance to a trial court’s power to antedate sentences. This approach was codified in the predecessor provision to what is now sub-s. 719(1), cementing when a sentence (and, thus, remissionand parole calculation) commenced.

Unsurprisingly, this approach influenced Canadian sentencing courts’ treatment of pre-sentencecustody and, in particular, the credit to be allocated to that period of an offender’s detention. [33] Many other common law jurisdictions, including England, have enacted legislation over the past twenty years that effectivelyantedates sentencing. Pre-trial custody, if any, is incorporated into an offender’s sentence, thus rendering each day of a prisoner’sincarceration, whether before or after the imposition of sentence, of equal valence for purposes of correctional release eligibilitycalculations.

In the United Kingdom, ss. 87-88 of the Powers of Criminal Courts (Sentencing) Act, 2000 (U.K.), prescribed that, withsome statutory exceptions, … the court shall direct that the number of days for which the offender was remanded in custody in connection with the offence or arelated offence shall count as time served by him as part of the sentence. [Emphasis added.] The provision was slightly amended in 2003 to remove any ambiguity and to emphasize the mandatory nature of the trial judge’sobligation.

Subject again to narrow exceptions, s. 240(3) of the Criminal Justice Act 2003 (U.K.), effective April 2005, prescribes that … the court must direct that the number of days for which he offender was remanded in custody in connection the offenceor a related offence is to count as time served by him as part of the sentence. [Emphasis added.] A government-issued “Explanatory Note” (Explanatory Notes to the Criminal Justice Act 2003 (U.K.), s. 240) makes clear that theeffect of the provision is that days credited “count towards time served under the sentence”.

Appellate authorities are to the same effect:see, for example, Gordon v. R., [2007] 2 All E.R. 768 (C.A. (C.D.)), at paras. 1, 67, 84, 90 and 94. And see Archbold: CriminalPleading, Evidence and Practice 2009, London: Sweet & Maxwell, 2009, at pp. 779-783. [34] Most of the eight Australian criminal jurisdictions have adopted a similar approach. In Australia’s Capital Territory, forexample, ss. 62 and 63 of the Crimes (Sentencing) Act 2005 (A.C.T.) operate to backdate sentences to the day an offender was remandedinto pre-sentence custody.

Section 159A of the Penalties and Sentences Act 1992 of Queensland provides that an offender’s pre-sentencecustody “must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders”.

Section 16of the Tasmania Sentencing Act 1997 directs that sentencing courts must take remand custody into account and, in that regard, “mayorder that the sentence of imprisonment is to commence on a day earlier than the day on which it is imposed”.

Section 87 of theSentencing Act 1995 (W.A.) is to similar effect in Western Australia, as is sub-s. 30(2) of the South Australia Criminal Law (SentencingAct) 1988 (S.A.) which affords a discretion to sentencing courts to either antedate an offender’s sentence to the day the offender’s pre-sentence custody began or to reduce the sentence as a result of that detention. [35] In New Zealand, ss. 76 and 90 of the Parole Act 2002 (N.Z), 2002/10 and s. 82 of the Sentencing Act 2002 (N.Z.), 2002/9govern. Their effect is to calculate an offender’s sentence from the first day of pre-sentence custody for purposes of determining paroleeligibility and statutory release dates. (

d) The Evolution of Credit for Pre-Sentence Custody [36] While adhering to the orthodoxy that sentences begin on the day they are imposed, the Ontario Court of Appeal signalled bythe mid-1940s that the “period which [an offender] was in custody pending his trial and conviction may be here reasonably taken intoconsideration” on sentencing: R. v. Sloan (1947), (ON CA), 87 C.C.C. 198, at 200-1. (See also, R. v. Patterson (1946), (ON CA), 87 C.C.C. 86, at 87.) This approach received statutory sanction in the 1972 Bail Reform Act.

Oneof the provisions in the new bail regime, sub-s. 624(2a), read: In determining the sentence to be imposed on a person convicted of an offence, a justice, magistrate or judge may take into account anytime spent in custody by the person as a result of the offence. Subsection s. 719(3) of the Code, as it read before Bill C-25 was passed into law, set out in near identical terms the discretiongranted sentencing judges to determine the credit to be assigned an offender’s pre-sentence custody. [37] By the early-1980s, a nationwide practice of granting greater than 1:1 credit for pre-sentence custody had developed.

Asexplained by University of Ottawa Law Professor R. Paul Nadin-Davis in the first edition of his Sentencing in Canada (Carswell, 1982),

at p. 155, “the true rationale for this view is that time served pending trial does not attract remission and is therefore equivalent to alonger term of post-sentence custody”. Professor Manson’s historical survey notes that enhanced credit also began to be granted inconsideration of the “harsher conditions of confinement” detailed in Professor Martin Friedland’s influential study Detention BeforeTrial (University of Toronto Press, 1965). These onerous conditions are little changed in many remand facilities to this day. By themid-1990s, as reported in the Court of Appeal case of R. v.

Rezaie, supra, at para. 25, “trial judges, in deciding on an appropriatesentence, frequently give credit for double the time an accused has served” in pre-sentence custody – a ratio held “entirely appropriate”by the Supreme Court in Wust, supra, at para. 45. As succinctly set out by the Court of Appeal in R. v. Davis, 2007 ONCA 385, at para.1, “The three reasons for granting such a credit are the usually crowded jail conditions pending trial, the lack of rehabilitative programsand the impact on the offender’s parole eligibility”. (See also, R. v.

Clarke (2003), (ON CA), 172 O.A.C. 133, atpara. 5.) [38] The two-for-one convention was exactly that. It was not a rule of law, yet departures from this norm absent ascertainablereasons have sometimes been held to amount to an error in principal in Ontario: R. v. Branco, 2007 ONCA 344. Other appellate courtshave held that the party seeking such departure bears the burden of persuasion: R. v. Roulette (2005), 2005 MBCA 149 , 201Man. R. (2d) 148 (C.A.), para. 25. Sentencing judges retained discretion in appropriate cases to modify this ratio: see R. v. Wust, supra,and R. v. Rezaie, supra.

Where pre-sentence custody proved particularly oppressive or overcrowding exceeded humane boundaries, somecourts enhanced the credit attribution: see, for example, R. v. Downes, infra, at para. 25, R. v. Kravchov (2002), (ON CJ), 4 C.R. 6th 137 (Ont. C.J.) and R. v. Serniak, [2002] O.J. No. 5160 (S.C.J.). Indeed, in R. v. Morrisey, 2000 SCC 39 , [2000]2 S.C.R. 90, at para. 57, the Supreme Court noted, “[a] one year credit for five months of pre-trial custody is not demonstrably unfit”. However, such departures from the settled norm were very unusual occurrences.

The authors of a mid-2009 study based on “empiricaldata on the nature and extent of pre-sentencing custody credits in Canadian adult criminal courts” concluded that “courts rarely awardanything above a 2:1 ratio”: D. Grech and K.M. Bourgon, “Credit for Pre-sentencing Custody: Preliminary Analysis”, unpublishedpaper, October 29, 2009, at p. 4. (See also A.

Manson, “Bill C-25: The Truth in Sentencing Act, or Let’s be Truthful about Sentencing”,written submission to the Senate Committee on Justice and Legal Affairs, September 17, 2009, at pp. 1-2.) [39] On the other hand, where an offender has little prospect of parole (R. v. Francis (2006), (ON CA), 79O.R. (3d) 551 (C.A.), at para. 25), has repeatedly violated his bail conditions (R. v. Warren (1999) (ON CA), 127O.A.C. 193, at para. 7) or committed the offence at issue while on bail and probation (R. v.

Stewart (2002), (ONCA), 163 O.A.C. 391, at para. 10), has not endured prison congestion (as in the just-noted case of Davis), has deliberately delayed theprocess in order to secure the benefit of credit for pre-trial custody (R. v. Thornton (2007), 2007 ONCA 366 , 224 O.A.C. 219,at paras. 31-33) or is unlikely to take advantage of rehabilitative programs (R. v. Bradley, [2009] O.J. No. 750), or when the “dead time”of concern is of de minimis value (R. v. Nusrat (2009), 2009 ONCA 31 , 239 C.C.C. (3d) 309, at para. 60), a reduced credit ratioor, on very rare occasion, no credit at all (R. v.

M.(C.A.), (SCC), [1996] 1 S.C.R. 500) might result. [40] What is clear is that the credit applied to pre-sentence custody is not a mechanical exercise.

As said by the Supreme Court inWust, supra, at para. 45, In the past, many judges have given more or less two months credit for each month spent in pre-sentencing detention. … The oftenapplied ratio of 2:1 reflects not only the harshness of the detention due to the absence of programs, which may be more severe in somecases than in others, but reflects also the fact that none of the [statutory] remission mechanisms … 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 the offender for any time spent in pre-sentencing custody. [41] Despite the message broadcast by the passage of Bill C-25, the Court of Appeal has since repeatedly re-affirmed the proprietyof applying the 2:1 ratio to offenders whose charges predate its advent. One example is afforded by R. v.

Almaktari, 2010 ONCA 802, asentencing decision that arose long prior to Bill C-25 but which the Court of Appeal did not reach until some ten months after the s. 719amendments came into effect. The trial judge had there awarded only 1.22 days of credit for each day of the offender’s pre-sentencecustody after finding he “would not avail himself of programs while in jail based only upon his pre-charge failure to pursue educationalor other programming”.

On appeal, the Court, at para. 2, held there was “insufficient evidence” to support this finding and concludedthat “we see no reason to depart from the general practice of awarding credit of two for one”. The same result was reached in the veryrecent case of R. v. Monje, 2011 ONCA 1, where the Court carefully reviewed and re-endorsed the historical rationales for the 2:1metric.

LaForme, J.A., speaking for the Court, noted, at para. 18, … that, to the extent that the recently legislated “new rules” [the Bill C-25 amendments] concerning credit for pre-sentence custody limitan offender’s entitlement to credit on a 2:1 basis, the reality of what “dead time” is remains. That is, pre-sentence custody continues tobe “dead time” for the same reasons Laskin J.A. noted in Rezaie and remains as one of the most punitive forms of imprisonment inCanada. (

e) Considering Strict Bail Conditions on Sentencing [42] Applying a parallel analysis, the Court of Appeal, in R. v. Downes (2006), (ON CA), 205 C.C.C. (3d) 488,extended tangible, if substantially reduced, credit on sentencing to lengthy periods of stringent bail. The Court’s reasoning, as expressedby Rosenberg J.A, at paras. 25-29 and 33, speaks to both pre-sentence custody and other forms of pre-sentence restraints on liberty: … some of the same considerations that justify credit for pre-sentence custody apply to an offender who has spent a long time underhouse arrest.

Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistentwith the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different characterthan actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of aconditional sentence under s. 742.1 of the Criminal Code. … Despite its punitive aspects, the offender receives no credit towards paroleeligibility for time spent on pre-sentence house arrest.

… Accordingly, I conclude that time spent under stringent bail conditions, especially under house arrest, must be taken into account as arelevant mitigating circumstance. However, like any potential mitigating circumstance, there will be variations in its potential impact onthe sentence and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest.

In the result, the appellant was granted five months credit (a ratio of approximately .3:1) for the 18 months of strict house arrest to whichhe was subject while on bail pending the resolution of his case. [43] Subsequent decisions of the Court of Appeal have refined and, to a significant degree, reformulated the ratio of Downes. Byway of refinement, and as summarized by Cole J. in R. v. Duff, 2010 ONCJ 493 , [2010] O.J. No. 4613 (C.J.), at para. 42, “asentencing judge should have some evidence that the terms and conditions of release have been particularly onerous” before extendingcredit. (See, also, R. v.

Junkert, 2010 ONCA 549, at paras. 33-38.) More importantly, however, the Court of Appeal made patent thatthe correct approach to consideration of strict bail conditions on sentencing is to treat them as part of the front-end mitigative calculusrather than, as in the case of pre-sentence custody, a discrete factor to which an arithmetical discretionary credit may be independentlyapplied and then deducted from an otherwise fit sentence. “In Downes”, the Court explained in R. v.

Panday (2007), 2007 ONCA 598, 226 C.C.C. (3d) 349, at para. 28, “the anchor in the reasoning is that credit for strict pre-trial bail is conceptually a mitigatingfactor”. (See also, R. v. Ijam (2007), 2007 ONCA 597 , 226 C.C.C. 376 (Ont. C.A.), at paras. 32-37, and R. v. Lindsay (2009),2009 ONCA 532 , 245 C.C.C. (3d) 301 (Ont.

C.A.), at para. 45.) [44] The recasting of Downes is consistent with the manner in which courts of appeal in most other provinces address stringent bailconditions: that is, as “part of the mix” of mitigating considerations that factor into the determination of a fit and appropriate sentence –rather than a final reduction from such calculation. This position is well developed by the Manitoba Court of Appeal in R. v.

Irvine(2008), 2008 MBCA 34 , 231 C.C.C. (3d) 69, at para. 27: The impact of the bail conditions on an accused person are to be “put into the mix” along with other potentialmitigating factors such as the relative youth of the accused, the lack of a record, prospects for rehabilitation, remorse, familyresponsibilities and the like.

Unlike the “credit” to be given – after the fit and appropriate sentence has been determined – for time spentin pre-trial custody, any consideration to be given for pre-trial bail occurs at the same time as the sentencing judge considers all of theother mitigating and aggravating factors. Time spent on pre-trial bail, in contrast to pre-trial custody, does not form part of thepunishment itself; rather, it forms part of the initial analysis to arrive at the fit and appropriate sentence.

There is no potential “credit” tobe given in calculating the sentence, as there is under sec. 719(3) of the Code for pre-trial custody. It is simply a potential mitigatingfactor. [Emphasis added.] See, also, R. v. Knockwood, 2009 NSCA 98, esp. at paras. 28-33, Voeller v. R., 2008 NBCA 37, R. v. Nghiem, 2009 BCCA 170, and R. v.Newman (2005), 2005 ABCA 249 , 199 C.C.C. (3d) 561 (Alta.

C.A.). [45] Whatever the approach, judicial sentencing discretion to consider the circumstances of an offender’s bail conditions and theirmitigative weight, if any, are not affected directly by any of the amendments introduced through Bill C-25. [46] Finally, in this regard: pursuant to sub-s. 719(2), and unchanged from its earlier iteration, an offender’s “time” on bail “doesnot count as part of any term of imprisonment imposed on [that] person”.

It is worth noting that this provision, and the approachcurrently taken in Canada to the assessment of stringent bail conditions on sentencing, is markedly different from the metrication ofcredit for such interim releases reflected in recent legislative amendments in the United Kingdom.

Effective April 4, 2005, s. 240A ofthe Criminal Justice Act 2003 (U.K.), directs, with certain narrow exceptions, that persons subject to strict house arrest conditions (a“curfew … and electronic monitoring”) while on bail must be credited for half that time (that is, a credit ratio of .5:1) “as time served bythe offender as part of the sentence”. D. THE EVIDENCE (

a) Introduction [47] The preceding description of the penal and correctional systems in Canada derives chiefly from the voluminous record filedby the parties to this application. A small portion of this record directly addresses the ultimate issue: the Applicant’s fit sentence for theoffence to which he has pled guilty. The documentary record is supplemented by viva voce and affidavit evidence tendered by theApplicant.

This collection of evidence – composed of testimony, affidavits, scholarly articles, government reports, statistical analyses,journalistic commentary, polling results and extensive transcripts of Hansard and Parliamentary committee hearings – speaks to theCharter motion and the basis of the Applicant’s individual claims for constitutional relief. [48] As noted earlier, an offender sentenced to a custodial disposition of less than two years serves his or her sentence in aprovincial reformatory and is subject to provincial correctional and parole laws and regulations.

Those sentenced to imprisonment fortwo years or longer serve their sentences in federal penitentiaries and their correctional management and release is governed by federallegislation. Further, and of some potential relevance, a judge on awarding a custodial sentence may, in addition, impose a subsequentperiod of probation, for as long as three years, in all cases where the resulting carceral portion of the sentence is no longer than twoyears.

Restated, any reformatory-length sentence will allow for the imposition of a term of probation so long as the custodial portion isnot made consecutive to another custodial sentence such that their combined effect is a sentence of imprisonment of greater than twoyears. Only a minimum-length (two year) penitentiary sentence will ever admit to a probationary supplement. (

b) The Applicant [49] The Applicant’s antecedents are set out in his sworn affidavit and criminal record.

[ 50 ] The Applicant is now about 40 years of age. He is of mixed heritage: his father is Metis/Mi’Kmaq from Nova Scotia and his mother was born in Jamaica. His father, an alcoholic, abandoned the family when the Applicant was four year old. He had very little involvement with the Aboriginal community. The Applicant completed high-school. He lived with his sister and fathered a first son when 22 years old and a second when 28. He maintains a relationship with both and with the mother of his second child. [ 51 ] The Applicant has been addicted to crack cocaine since 1998, when he was 28.

His conflicts with the criminal law began the same year, as did his descent into homelessness. Since then he has cycled between periods of custody, chiefly at the Toronto Jail, and periods on the street. He has never completed a “real” drug treatment program. The Applicant obtained a forklift license in 2009 and hopes to “get clean”, parlay his forklift certification into a regular job and live with his youngest son and the boy’s mother in Brampton. He has worked in the jail kitchen during much of his pre-sentence detention.

A letter from his staff supervisor at the Toronto Jail speaks very favourably of the Applicant’s industry, work ethic, collegiality, good manners and exemplary attitude while employed in the kitchen. [ 52 ] The Applicant’s record reflects his lengthy involvement with drugs and his participation in relatively low-level trafficking as a mean of financing his own habituation. He has accumulated some 15 convictions since 1998, nine of which are for drug-trafficking (likely cocaine) offences for which, on three occasions, effective sentences of 18 months incarceration were imposed.

He also has three convictions for breach of recognizance (that is, failing to comply with the terms of his bail) and two weapons possession convictions, both of which appear related to the trade of street-level dealing. The Applicant has no recorded history of violence. (

c) The Bigger Picture: Systemic Considerations and their Impact on the Applicant (

i) Introduction [ 53 ] Testimonial evidence bearing on both the Applicant’s current and prospective correctional circumstances and more systemic aspects of the application was tendered through three witnesses called by the Applicant and related and uncontested affidavit material respecting treatment programs in Ontario correctional facilities. In addition, numerous articles dealing with sentencing generally and the Bill C-25 amendments in particular have been filed, as have various government and statistical reports on the penal, correctional and parole systems in Canada and elsewhere. A

summary of the testimonial and affidavit evidence follows, along with occasional supplementary annotations. Where necessary, I draw further on this evidence and the related documentary record elsewhere in my Reasons. (ii) A Criminological Overview [ 54 ] The Applicant’s first witness, Dr. Anthony Doob , is an eminent professor at the University of Toronto’s Centre of Criminology. No issue was taken with his expertise in the areas of sentencing, bail and incarceration policies.

Professor Doob has published many dozens of papers bearing on these topics and served as a Commissioner of a royal commission, the Canadian Sentencing Commission, from 1984 to 1987. He is a Fellow of the Royal Society and has appeared before the House and Senate justice committees on a number of occasions including, most recently, respecting Bill C-25. [ 55 ] As regards sentence calculation, the core theme of Professor Doob’s evidence is that one day served should be treated as one day served, whether that day is served in pre- or post-sentence custody.

Professor Doob’s analysis proceeds on the assumption that Parliament’s objective in passing Bill C-25 was the same. As stated in written remarks he tendered to the Senate Committee studying the Bill on May 25, 2009: … the purpose of this bill is not to increase or decrease the amount of punishment certain offenders receive, but rather to ensure that time in pretrial custody should count the same as time in custody after the sentence is imposed.

In other words, … in terms of the number of days or months an offender stays in prison – that the purpose here is to ensure that there is no advantage or disadvantage (at least in terms of days served) to serving those days prior to sentencing rather than after sentencing. [Emphasis in original.] Premised on this assumption, and as expressed in his written submissions to the Senate Committee, the Bill C-25 amendments were said to “enshrine in legislation a logical or arithmetic error”. [ 56 ] The failing math grade Professor Doob assigns Parliament rests on two premises: first, that most detained offenders subject to TIS will be sentenced under the “general” or “presumptive” rule in s. 719(3) such that they will not receive more than the maximum of one day credit for every day of pre-sentence custody they serve; and, second, that as a result of parole and sentence remission policies, almost all offenders sentenced to imprisonment in Canada serve no more than two-thirds of their sentences in custody.

As explained by Professors Doob and Cheryl Webster (of the University of Ottawa’s Department of Criminology) in the “Comments” they tendered to the same Senate Committee, 95% of all prison sentences in Canada are less than two years in length (and, as a result, are served in provincial correctional facilities and are subject to provincial remission and parole rules) and some 86% of all incarcerative sentences are no longer than six months duration.

Persons sentenced to less than six months incarceration in Ontario are not automatically considered for parole; they do, however, earn remission of, typically, one third of their sentences or, put otherwise, 15 days for every 30 days they serve. For example, an offender sentenced to 90 days will ordinarily serve no more than 60 days. Although prisoners can lose remission for disciplinary infractions while in custody, Professor Doob’s uncontradicted evidence is that this is a “very, very rare” occurrence. [ 57 ] Unlike sentenced offenders, persons in pre-sentence custody do not earn remission.

If, as Professor Doob infers, Parliament’s intention in passing the TIS amendments was to achieve at least quantitative parity between offenders sentenced to incarceration after a period of pre-sentence custody and those who were on bail prior to their sentence of imprisonment, then the much more appropriate metric for crediting pre-sentence custody is one of 1.5:1 rather than a maximum of 1:1 (as prescribed in s. 719(3)) so as to at least compensate for “lost remission”.

Other than with respect to those offenders captured by the exclusionary clauses in s. 719(3.1), no one, says Professor Doob, argues that pre-sentence custody should be accorded less credit than post-sentence custody. Yet, he cautions, that is exactly the effect of Bill C-25. Measured in human lives, TIS means that persons detained pending their trials end up serving longer periods in custody than biographically, socially and criminally identical offenders whose incarceration does not begin until their sentencing. In short, as Professor Doob testified, Parliament “got the arithmetic wrong”.

[58] (The “arithmetic” logic of a 1.5:1 credit ratio would not afford full compensation for the very small minority of prisoners –chiefly housed in federal penitentiaries – who are granted parole in advance of their remission or statutory release dates. However, andunlike remission, parole is a discretionary remedy delegated to parole boards. As a result, its occurrence cannot be predicted with thesame certainty as the near-universal likelihood of remission or statutory release.

In any event, and as earlier noted, approximately 90%of all those sentenced to carceral dispositions will, as a practical matter, never be considered for parole by virtue of their sentences beingless than six months’ duration.) [59] As no single ratio can ever perfectly forecast or capture each individual custodial experience, Professor Doob made clear thathis “own favourite proposal” is to backdate the sentence to the first day the offender was taken into custody and then “let remission andconditional release [parole] take its own course” from that starting point.

However, as earlier discussed, the Criminal Code expresslyprohibits this approach except in the case of sentences of life imprisonment. Given the complexity of the bail, sentencing andcorrectional processes, Professor Doob concluded that “if you’re simply going to give a proportion of days” as a general metric to beapplied to the calculation of pre-sentence custody so as to achieve at least rough parity on sentencing, “it would be one and a half toone”.

Professor Julian Roberts, the Assistant Director of the Centre for Criminology at the University of Oxford and a prominentauthority on sentencing law and policy and, in particular, their application in Canada, expressed an identical assessment during hispresentation before the Senate Standing Committee on Legal and Constitutional Affairs (September 17, 2009, at p. 13:65). [60] Professor Doob briefly addressed the nature of pre-sentence custody.

The lack of programs contributed to what hecharacterized as the “most difficult” kind of imprisonment, but he viewed their absence as institutionally understandable given theinevitable unpredictability surrounding each inmate’s tenure in a remand centre. (And, as others have noted, it is difficult to instituteremand centre counselling or therapeutic programs directed at internalized causes of criminal behaviour when almost every member ofthe target population is innocent until the day they plead guilty and are sentenced.

However, there seems no impediment to the deliveryof, for example, educational or vocational programs that are neither treatment-oriented nor premised on an assumption of moral fault.) Professor Doob abjured any expertise on the quality of remand facilities but did suggest that the uncertainty that attends such custodynecessarily amplifies the anxiety associated with imprisonment. [61] Turning to the circumstances of black persons (as is the Applicant) in the criminal justice system, Professor Doob cited a bail-related study that he co-conducted for the earlier-mentioned Commission on Systemic Racism in the Ontario Criminal Justice System(see Commission Report, supra, esp. at pp. 120-146).

That 1994 research found blacks were more likely than persons of other races to beordered detained pending their trials, even when controlling for other factors. He was inclined to attribute this disparity to systemicdisadvantages such as marginalization, residential instability and the absence of adequate sureties (all of which positively correlate withthe social circumstances of black persons and weigh against judicial interim release) rather than palpable racism.

He could not say withcertainty whether the same racial inequality in the granting of bail exists today, some 16 years later, but he thought it likely given that thesystematic factors that explained the 1994 disparity still obtained.

Although Professor Doob did not say so expressly, his reasoningstrongly suggests that any custodial sentencing disadvantage visited on those detained in custody pending their trials as a consequence ofthe Bill C-25 amendments would only be compounded in the case of black persons as they are more likely than members of other racesto be denied bail. [62] Professor Doob did not directly address the plight of native Canadians caught up in the criminal justice system. TheApplicant is of Aboriginal heritage. More than a decade ago, in the seminal case of R. v.

Gladue, (SCC), [1999] 1S.C.R. 688, at para. 59, the Supreme Court observed that the “serious problem of aboriginal overrepresentation in Canadian prisons iswell documented”. After reviewing the available data through the mid-1990s, the Court, at para. 64, characterized the dramaticoverrepresentation of Aboriginal peoples in prisons as “a crisis in the Canadian criminal justice system” and “a sad and pressing socialproblem”. The Court gave very clear directions to sentencing judges to reduce their reliance on incarceration in response to Aboriginalcriminality.

And some courts, at least in Ontario, were re-organized to expressly implement and apply the lessons of Gladue: see, forexample, Justice Brent Knazan’s

article “Time for Justice: One Approach to R. v. Gladue”, [2009] Criminal Law Quarterly, 431. [63] Despite these initiatives, the disproportionate representation of Aboriginal offenders in the prison population has onlycontinued to increase. Native persons constitute only about 3% of the Canadian population.

Yet, as Jonathan Rudin reports in“Addressing Aboriginal Overrrepresentation Post-Gladue: A Realistic Assessment of How Social Change Occurs”, [2009] CriminalLaw Quarterly 447, at 451, the 2006/2007 … figures from Statistics Canada show that Aboriginal people make up 20% of the jail population in provincial facilities, up from 16% in2001. Currently, over 1 in 5 inmates in federal and provincial jails are Aboriginal. For women, almost one in three women in jail isAboriginal. And the figures are even worse for youth.

The disparity is starkly and succinctly captured in a recent Annual Report produced by the Office of the Correctional Investigator, 2008-2009 (http://www.oci.bec.gc.ca/rpt/annrpt/annrpt20082009-eng.aspx): “Abo-riginal rates of incarceration are now almost nine times thenational average”. (See, also, the 2009 Report of the Public Safety Canada Portfolio Corrections Statistics Committee, supra, at pp. 47-48, 57-58 and 67-68.

Additionally, at pp. 81-82 and 87-88, the Report notes that, as regards prisoners in federal penitentiaries, “thepercentage of time served until full parole supervision was lower for non-Aboriginal offenders than for Aboriginal offenders” and that,consistent with historical data, the “parole grant rate” for Aboriginal prisoners in 2008-2009 was 29.6% while that for non-Aboriginaloffenders was 46.3%.) [64] Predictably, the composition of remand populations closely reflects the woeful overrepresentation of native persons in thecorrectional system more generally.

Justice Marc Rosenberg addressed these circumstances in the course of his acceptance speech uponreceiving the G. Arthur Martin Criminal Justice Award in November 2009 (31(1) For The Defence 12, at 14): The pre-trial remand situation is even worse for some of the most marginalized of our society. Aboriginal adults represent three per centof the population but almost 20 percent of the remand population.

Aboriginal youth represent six per cent of the population and 25 percent of admissions to remand. [65] Further, as reported by the Juristat division of Statistics Canada in December 2008 (“The Changing Profile of Adults in

Custody, 2006/07”), “[o]ver the 2001/2002 to 2006/2007 period, data from nine [provincial and territorial] jurisdictions indicate thatgrowth in the number of Aboriginal adults admitted to remand [an increase of 23%] outpaced the overall growth in admissions to remand[an increase of 14%]”.

Further still, as Howard Sapers, the federal Correctional Investigator, advised the House of Commons StandingCommittee on Justice and Human Rights, May 25, 2009, at pp. 7-8, in the course of its hearings into Bill C-25: Research suggests that aboriginal people in pre-sentence custody are more likely to be denied bail and more likely to be held in highersecurity conditions and serve longer periods of time in remand. (See also S.

Perreault, “The Incarceration of Aboriginal People in Adult Correctional Services, Juristat, Vol. 29, No. 3, July 2009,Statistics Canada.) It appears reasonable to infer that, at a systemic level, any sentencing unfairness experienced by detained defendantsas a result of the Bill C-25 amendments will be amplified for those of Aboriginal heritage. [66] Throughout his testimony Professor Doob returned to the idea of proportionality and fairness in sentencing: Going to prison is punishment … and we take seriously in Canada the idea that punishment … should be proportional, and what we havehere is something which says certain kinds of imprisonment, probably imprisonment which is the most difficult, counts less towards theamount of punishment that you’re going to receive than punishment which is administered in a less harsh fashion. … [I]t’s a form ofunequal treatment of people that isn’t consistent with our sentencing rules, but it is also inconsistent with what I think most people wouldwant in Canada, which is proportional sentencing. … What [Bill C-25] does is it mucks up the ultimate fairness of sentences.

And what I mean by fairness is that the amount of punishmentthat a person receives should be related back to what they’ve done not where they happen to have spent the time prior to beingsentenced. (iii) The Applicant’s Remand Experience [67] David Ruttle, the second witness, is the security manager at the Toronto Jail. This institution houses a few inmates servingvery short sentences and some who have just been sentenced to terms of two years or longer and are awaiting transfer to federal penalfacilities.

But for these prisoners, the “Don Jail”, as it is historically known, is one of three Toronto remand centres dedicated to theconfinement of accused persons ordered detained in custody pending their trials.

It is almost painfully clear that the privations, near-daily humiliations, overcrowding, lack of programs and recreation, mobility restrictions and tedium associated with remand custody bearvirtually no resemblance to either the most arduous of judicial interim releases pending trial or the conditions of offenders servingsentences. [68] The Toronto Jail, where the Applicant has been housed throughout his detention, maintains a certain infamy in the annals ofCanadian remand centres. In R. v.

Rowan, [1976] O.J. 560, at para. 6, the Court of Appeal noted, “imprisonment in that jail for any but abrief period is a severe punishment”. Although later retrofitted to accommodate twice it original compliment of prisoners, circumstancesat the Don Jail remain notorious: see, for example, R. v. Sanchez, (ON CA), [1996] O.J. No. 7 (C.A.); R. v. Jabbour[2001] O.J. No. 3820 (S.C.J.), R. v. Permesar [2003] O.J. No. 5420 (C.J.); R. v. R.L., [2004] O.J. No. 384 (S.C.J.), at para. 58 and n. 15;R. v. McDonald, supra, at para. 32.

The conditions at the Toronto Jail have been described as “significantly sub-standard and notreasonable” and as falling well short of the “standard minimum rules” prescribed in the First United Nations Congress on the Preventionof Crime and the Treatment of Offenders, 1977, an international agreement to which Canada is a signatory: R. v. Permesar, supra, atparas. 9-19. [69] Ruttle’s evidence confirms that the conditions at the Toronto Jail are as onerous now as they were at the time these variousjudicial comments were written.

While the jail’s current official capacity is 561 prisoners, it holds just under 600 persons on any givenday. But for those in solitary confinement, prisoners are usually double-bunked, and sometimes triple-bunked, in cells measuring six bynine feet that were originally built to house a single prisoner. Where there are three prisoners to a cell, a third mattress is placed on thefloor across the cell door or, often, under the bottom bunk leaving a clearance of about a half foot for the prisoner inhabiting the bottomspace.

The only natural light is that passing through frosted windows in the dayrooms shared by the occupants of each 18-cell living unit,some 20 to 25 feet distant. The Applicant was double-bunked for 187 of his first 250 days at the Toronto Jail; he was triple-bunked for19 of the remaining days (although not required to sleep on the floor) and spent 44 nights without a cellmate. [70] There is a putative “fresh air program” for prisoners at the Toronto Jail. This is intended to allow daily access to an outdoors“exercise yard”. That yard is the size of a tennis court and has a rubberized floor.

It does not contain any exercise, athletic orrecreational equipment. (There are no exercise facilities or equipment anywhere in the Toronto Jail.) About 25 prisoners are permittedaccess to the yard at a time for about 20 minutes on each occasion. In practice, access to the yard is frequently interrupted by otherinstitutional concerns. During the first 250 days of his pre-sentence custody, the Applicant was only afforded 33 opportunities to accessthe yard; put otherwise, on average he was permitted to go outside, and then only for minutes, about once a week.

As said of the DonJail with some obvious exasperation by Watt J. (as he then was) in R. v. Jabbour, supra, at para. 62, “We are not talking about a healthclub or spa, simply fresh air”. [71] There are no vocational or treatment programs in the facility. A single school board teacher attends every day and communityvolunteers provide some one-on-one tutoring and AA and related services on an occasional basis.

Some prisoners, like the Applicant, arepermitted to work in the kitchen or laundry; they receive no remuneration for their labour. [72] “Lock-downs” are relatively common occurrences, accounting for at least several days a months when prisoners are locked intheir cells 24-hours a day but for a single 20 to 30 minute period when they may be individually escorted to showers or critical phone-calls.

Absent lock-downs, the Applicant, like all persons in “population” (as opposed to the “segregation” that is imposed for medical,administrative or disciplinary reasons), is locked in his cell from 9pm to 9am each night and placed in the “day room” for the intervening

12 hours. Each day a unit is selected for contraband investigation and all the prisoners in that unit are then strip-searched. Whatever itsadministrative or security rationale, it is here worth recalling the Supreme Court’s comment in R. v. Golden, 2001 SCC 83 ,[2001] 3 S.C.R. 679, at para. 90, that strip searches are “inherently humiliating and degrading for detainees regardless of the manner inwhich they are carried out”. (iv) Availability of Treatment in Provincial Facilities [73] The Applicant’s record reflects a lengthy and tenacious drug dependence.

There are three Ontario adult male correctionalfacilities that contain “treatment centres” designed to address this and other disorders. Their total capacity is only 430 beds, about two-thirds of the daily population of the Toronto Jail alone. Substantial minimum-sentence thresholds, waiting lists and needs-basedprioritization often frustrate admission to these limited facilities. In short, sentenced offenders requiring intensive treatment are far fromguaranteed placement in an appropriate provincial facility.

Absent significant expansion of these treatment programs, access may wellgrow even more challenging as a consequence of the TIS amendments. (

v) The Federal Correctional System [74] Steven Popovski is a 15-year veteran of the Correctional Service of Canada, the federal corrections agency. He currentlyholds the position of acting parole supervisor in the Toronto area. [75] As described

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