R. v. Jacque, 2011 NLCA 12

Date: 20110125 Docket: 10/75 Citation: R. v. Jacque , 2011 NLCA 12

Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : HERBERT JACQUE APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Barry, White and Hoegg, JJ.A. Court Appealed From: Provincial Court of Newfoundland Labrador Happy Valley/Goose Bay Appeal Heard: January 13, 2011 Judgment Rendered: January 13, 2011 (Orally) Memorandum of Disposition filed: January 25, 2011 Counsel for the Appellant: Michael Ralph Counsel for the Respondent: Sheldon Steeves MEMORANDUM OF DISPOSITION

Hoegg, J.A.: [1] On February 4, 2010, Mr. Jacque was convicted of a serious sexual assault after a two-day trial. On April 9, 2010 the trialjudge sentenced him to a custodial term of two years and probation for two years. In her sentencing decision, she considered the purposeand principles of sentencing found in sections 718 and 718.1 of the Criminal Code, and took into account Mr. Jacque’s personalcircumstances including his aboriginal status as required by

section 718.2 of the Code. [2] In the course of her oral decision, the trial judge mentioned that Mr. Jacque had been in custody on remand for a period oftime in 2008 in relation to the charge before her and several other charges. The chronology and details of these charges as they related toMr. Jacque’s bail was not clear. When the trial judge determined Mr. Jacque’s sentence, she did not consider whether to grant credit forthe time he spent in pre-trial custody. [3] On May 6, 2010 Mr. Jacque appeared before the trial judge on an unrelated matter.

By this time the trial judge was aware ofthe chronology and details surrounding the time Mr. Jacque had spent in pre-trial custody in 2008. While stating that she was functus,she advised Mr. Jacque and his counsel, on the record, that when she sentenced Mr. Jacque for the offence before her on April 9, 2010,she had misapprehended the date on which he had been released on bail in 2008, and therefore did not consider the issue of credit for hispre-trial remand time. She said: … I just want this brought to Mr. St. George’s attention and then he can always contact the Court.

The…I sentenced him on a matterand I gave him a period of incarceration, I believe of two years. I did not give him pre-trial custody credit because I misunderstood whenhe had been released from custody. It’s a situation where, had I not misapprehended the date, I would have probably given him pre-trialcustody credit. … … And, you know, I consider that to have been error on my

part in not appreciating the…in not appreciating the date of the ah…of the…of his release decision. And I wanted to bring that to Mr. St. George’s attention by some means. [4] Mr. Jacque subsequently appealed to this Court for an Order varying his sentence to reflect the time he spent in pre-trialcustody on the basis that the trial judge erred by not taking that time into account when passing sentence. [5] Section 675(1)(

b) of the Criminal Code stipulates that leave to appeal is required in sentencing appeals. The test to beapplied is whether the appeal is “frivolous in the sense of having no arguable basis or sufficient merit.” (R. v. Jesso (H.) (2008), 2008NLCA 30 , 276 Nfld. & P.E.I.R. 147 (NLCA). [6] Mr. Jacque’s appeal cannot be said to be frivolous or unmeritorious.

It raises a legal question as to whether a trial judge errsif he or she fails to consider time an offender spent in pre-trial custody when sentencing that offender, and if so, when pre-trial custodialtime is subsequently considered, whether a sentence ought to be varied. Such a situation could have significant consequences for anoffender. Accordingly, leave to appeal is granted. ANALYSIS [7] In this case, the trial judge considered herself to have erred in failing to consider the time Mr. Jacque spent in pre-trialcustody when she determined his sentence.

Both counsel, while acknowledging that a decision whether to credit pre-trial custodial timeon sentence is discretionary, acknowledged that the failure to consider the issue of time spent on remand could constitute error. [8] Section 719(3) of the Code, as it read prior to being amended in February, 2010, and as it reads today, permits a sentencingjudge to take pre-trial remand time into account on sentencing. Prior to being amended section 719(3) 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 incustody by the person as a result of the offence. [9] While the taking into account of time spent in pre-trial custody on the calculation of sentence is clearly discretionary, thefailure to consider the issue when sentencing an offender is an error in principle. The extent of credit for pre-trial custody is alsodiscretionary and not governed by a rigid formula.

However, it has been the longstanding usual practice, authorized by section 719(3) ofthe Code, to credit an offender for time spent in pre-trial custody on sentencing. Failure to consider the issue could work an unfairnessagainst offenders whose sentences do not reflect the time they spent in pre-trial custody with resulting offence to the parity principle. [10] Given the trial judge’s error, it falls to this Court to consider the time Mr. Jacque spent on pre-trial remand and determine a fitsentence. [11] The parties agree that Mr. Jacque spent 197 days in pre-trial custody.

The question now is whether he should receive credit forit, and if so, how much. As stated above, this determination is discretionary, but the discretion must be exercised on a principled basis. [12] The Crown argues that this Court need not modify Mr. Jacque’s sentence because the two-year custodial sentence he receivedplus the 197 days he spent in pre-trial custody and two years probation, is not an unfit sentence. Mr.

Jacque’s position is that he ought toreceive 197 days, or some other appropriate amount of time, credit against his custodial sentence. [13] At this juncture, it is useful to note the trial judge’s following comments on May 6, 2010: … it wouldn’t have been a situation where I would have given double credit for that time because he was in custody on that matter andother matters, but I would likely have given him some pre-trial custody credit and I think it’s only fair to state that on the record in someform or fashion because if Mr. St.

George wants to do anything with that information, and the other difficulty is, it’s been a bit of timebefore anybody from your office has been given that information because Mr. St. George was away at one point. I believe he was in

meetings and we couldn’t reach him. Then we were on circuit, so it’s been some time. But I just wanted to be fair to Mr. Jacque andbring that to somebody’s attention. [14] In this case, there is no suggestion that the trial judge’s sentence is unfit. The trial judge did a thorough analysis of the relevantcase law before determining, on the facts and circumstances of this case and including consideration of

section 718.2 of the Code, thattwo years incarceration plus probation was an appropriate sentence. Other than the Crown’s “fitness” argument, no other reason hadbeen advanced for denying Mr. Jacque credit for the time he spent in pre-trial remand. With respect to the Crown’s argument, I wouldpoint out that while it may be that two years and 197 days custody would be a fit custodial sentence in this case, that does not mean that atwo year sentence is unfit. In the circumstances, including consideration of the trial judge’s comments on May 6, 2010, Mr.

Jacqueought to be credited for time he spent in pre-trial custody. The question now is how much credit should Mr. Jacque receive. [15] In order to determine this question, a review of the facts is warranted. When Mr. Jacque was first arrested on this matter onDecember 11, 2006, he was released on his own recognizance. He was also charged and released in relation to a second sexual assaultunrelated to this matter. On March 3, 2008, Mr. Jacque was charged with five unrelated offences – breach of undertaking, breach ofrecognizance, impaired driving, dangerous driving and flight from police.

At that time his recognizance was cancelled, and he wasdenied bail. He was remanded in custody in relation to all of the outstanding charges. [16] On April 29, 2008, Mr. Jacque was sentenced to time served on three of the five unrelated charges, and the other two werewithdrawn. He remained in custody on remand in relation to this offence and the other sexual assault charge. In November, 2008, Mr.Jacque sought a review of his bail. The review found a material change in circumstances warranting his release on conditions.

OnFebruary 4, 2010 he was convicted of this offence and on April 9, 2010 he was sentenced. [17] Prior to the amendment of section 719(3) of the Criminal Code in February, 2010, credit for time served in pre-trial custodywas usually granted on a two-for-one basis unless a principled reason existed to do otherwise. (See R. v. Wust, 2000 SCC 18 ,[2000] 1 S.C.R. 455 and R. v. Leyte, 2010 NLCA 8) Because Mr. Jacque’s offence took place in 2005, the pre-amendment law governshis case. [18] Mr. Jacque was released after he was charged in relation to this offence.

It was only after his arrest in relation to the five newcharges that his recognizance was cancelled and his bail was revoked. After the new charges were dealt with by the court (including theserving of his sentence) in late April 2008, Mr. Jacque did not apply for bail review until November 2008. Before being released onNovember 14, 2008 as a result of the review, he had spent 197 days in pre-trial remand. [19] In these circumstances, it would not be appropriate to credit Mr. Jacque on a two-for-one basis. (See R. v.

Provost 2006 NLCA30 and Leyte) However, time served is time served, and in recognition of the 197 days Mr. Jacque spent in custody while awaiting trialon this and the other sexual assault charge (which remains outstanding as of January 13, 2011) he will receive credit, on a one-for-onebasis, for the 197 days he spent in pre-trial custody. [20] In the result, Mr. Jacque’s two-year custodial sentence will be reduced by 197 days, and he will serve one year and 168custodial days post conviction in relation to this offence.

There is no change to the ancillary orders imposed by the trial judge. ________________________________ L. R. Hoegg, J.A.