R. v. Stonefish, 2012 MBCA 116

Citation: R. v. Stonefish, 2012 MBCA 116 Date: 20121213 Docket: AR 11-30-07603 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Barbara M. Hamilton Madam Justice Holly C. Beard BETWEEN : ) C. J. Mainella and HER MAJESTY THE QUEEN ) G. H. Bayly ) for the Appellant Appellant ) ) D.

Manning - and - ) for the Respondent ) ) Appeal heard: SHANNON TWOTHUNDER STONEFISH ) November 2, 2011 ) (Accused) Respondent ) Judgment delivered: ) December 13, 2012 STEEL J.A. 1 Section 719(3.1) of the Criminal Code (the Code ) now provides that credit for pre-sentencing custody (PSC) of up to a maximum of one and one-half days for each day spent in PSC (1.5:1) may be awarded only if “the circumstances justify it.” This appeal addresses the issue of when the circumstances may justify the award of such enhanced credit. FACTS 2 The accused was arrested on August 12, 2010.

He was charged with one count of possession of cocaine for the purpose of trafficking and two counts of breach of recognizance. At the time of his arrest, the accused was on bail for a charge of possession of cocaine for the purpose of trafficking, possession of proceeds of crime, and seven breach-related offences. He was wanted in connection with two arrest warrants relating to his pending charges. He did not apply for bail and his prior release was never revoked. 3 The accused pled guilty to the charges at his preliminary inquiry on May 10, 2011.

He was sentenced on July 12, 2011, to 24 months’ imprisonment, followed by 18 months’ supervised probation, for the drug offence. His conviction for two breaches of recognizance charges resulted in 60 days’ imprisonment to be served concurrently with his drug sentence. Sentencing took place 11 months after his initial arrest. 4 The accused spent the majority of his remand time at the Headingley Correctional Centre on a special range for members of the Manitoba Warriors, of which he is a full member. During the time he spent on remand at the correctional institution, he and other gang members assaulted an inmate.

The disciplinary board at Headingley sentenced the accused to 15 days of punitive segregation for his involvement in the gang assault. At the time of the sentencing, the accused was appealing that decision. 5 The accused has a serious criminal record. This was his third trafficking offence. At the time of his sentencing he was 27 years old and had amassed 22 convictions from 2003 to 2009 for criminal driving offences, breaching court orders, public mischief, and drug offences. In 2009, he received an 18-month sentence for trafficking.

The accused’s youth record from 1997 to 2002 consisted of 22 convictions for car theft, fleeing police, and breaching court orders.

6 The accused is aboriginal. Although his family is originally from Seine River First Nation, he was born andprimarily raised in Winnipeg. He has had no relationship with his father, a troubled relationship with his mother and was in and out offoster care as a child. THE SENTENCING DECISION 7 At his sentencing, a disputed issue was the award of enhanced credit pursuant to s. 719(3.1) for his PSC of 11months. The sentencing judge was provided with and considered conflicting trial decisions from other provinces on this point, includingthe case of R. v. Johnson, 2011 ONCJ 77, 268 C.C.C. (3d) 423.

In regard to that case, she stated: I am not going to be making any specific pronouncements as to whether or not I am following that particular decision.

Quite frankly, Idon’t believe that I have heard quite enough evidence, and at this point in time, really, what I need to look at is, are the provisions in theCode? 8 With respect to the evidence in relation to this particular accused, counsel submissions referred to the assault forwhich the accused had been disciplined while on remand, and the pending appeal for that assault, as well as submissions that the accusedwas attempting to participate in some programming.

Other than that: What I do have is I have the submission of defence counsel, that based on the regulations to provincial law dealing with earnedremission, of course, of which I can take judicial notice, it being provincial statute and regulations, that it is currently the law that allprisoners automatically earn remission at the rate of two-thirds of the sentence. 9 Consequently, the sentencing judge gave the accused enhanced credit for his PSC, using the 1.5:1 ratio. She statedthat her decision to utilize the 1.5:1 ratio was based primarily on “issues of fairness,” stemming from his loss of remission.

In the result,he was granted PSC credit of 16.5 months, leaving 7.5 months for him to serve. 10 It is from this decision that the Crown seeks leave to appeal and, if granted, to appeal this sentence to this court. RELEVANT STATUTORY PROVISIONS 11 Other than for a sentence of life imprisonment, legislative provisions for parole eligibility and statutory release do nottake into account time spent in custody before trial or sentencing. At common law and pursuant to s. 719(1) of the Code, a sentencecommences on the day it is pronounced.

The courts have held that this provision did not provide authority to backdate a sentence to takeinto account PSC (R. v. McDonald (1998), (ON CA), 40 O.R. (3d) 641 at 651-52 (C.A.)). Instead, jurisprudencedeveloped which took that period of time into consideration by reducing the term of imprisonment when the circumstances justified sucha course of action. 12 The courts across Canada adopted a rule of thumb which gave 2:1 credit for PSC. The justification for this was basedon two realities of remand custody.

First, remand time was often worse than that for sentenced prisoners by virtue of poor conditionsand the absence of rehabilitative programming in remand facilities. Second, as indicated above, such confinement was not included inremission or statutory release calculations. 13 So, for example, in 2000, the Supreme Court of Canada in R. v. Wust, 2000 SCC 18 at para. 44, [2000] 1 S.C.R. 455,while not prepared to endorse a “mechanical formula,” did approve of the ratio of 2:1 credit for PSC to reflect these two circumstances.

The Supreme Court reiterated its approval of a ratio of 2:1 credit for PSC again in 2006 in United States of America v. Ferras; UnitedStates of America v. Latty, 2006 SCC 33, [2006] 2 S.C.R. 77. 14 Despite the Supreme Court’s comments that it was not “entrenching” a rule and was preserving judicial discretion, theratio of 2:1 credit for PSC became the common practice across Canada in the decade after Wust (see R. v. Orr (C.), 2008 BCCA 76 atpara. 20, 251 B.C.A.C. 303).

For example, prior to the implementation of s. 719(3.1), approximately 75 per cent of the prison sentencesimposed in Winnipeg reflected the application of 2:1 credit for PSC (see House of Commons, Standing Committee on Justice and HumanRights, Evidence, 40th Parl., 2nd Sess., No. 27 (1 June 2009) at 2 (Chair: Ed Fast)). This court eventually called this custom a “norm”or a “general rule.” See R. v. Sparham (J.A.), 2007 MBCA 84 at paras. 5-7, 220 Man.R. (2d) 3, and R. v. Roulette, 2008 MBCA 113 atparas. 3-4. 15 Before the amendments, the previous s. 719(3) simply provided: 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 incustody by the person as a result of the offence. 16 The new s. 719(3.1) of the Code, which was passed as part of the Truth in Sentencing Act, S.C. 2009, c. 29, (the Act) s.3, came into force on February 22, 2010. With the passage of these amendments, Parliament limited judicial discretion with respect toawarding credit for PSC. Two-for-one credit for time spent in PSC is no longer the norm, nor even possible as a result of the new

provisions, which now read as follows: 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 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. POSITION OF THE PARTIES Argument of the Crown 17 The Crown has three grounds of appeal. First, the Crown submits that the sentence was unfit in that enhanced credit was not warranted on the facts of this case. Second, the Crown argues that the sentencing judge erred in law with respect to her

interpretation of the meaning and intent of ss. 719(3) , (3.1) and (3.2) of the Code . Third, it is contended that the reasons of the sentencing judge were inadequate. 18 With respect to the first ground of appeal, it is submitted that the accused was not a candidate for enhanced credit. This was his third trafficking-related conviction, and he was caught selling crack cocaine while on release for yet another alleged drug trafficking offence. He was a member of a criminal organization and had a lengthy criminal record.

Consequently, granting 1.5:1 credit for each day spent in custody prior to sentencing was an error. Instead, this case warranted an emphasis on deterrence and denunciation. 19 Second, these amendments establish a general rule that PSC will normally be credited on a 1:1 credit basis. Although a ratio of 1.5:1 may be credited “if the circumstances justify it,” that was not the case here.

The circumstances that justify enhanced credit are limited to cases where the offender can establish that the conditions of his or her remand custody were unusually onerous or the case was delayed through circumstances beyond an accused’s control. The accused in this case conceded his remand conditions were not onerous and there was no suggestion of unwarranted delay in the prosecution of his case. 20 Indeed, the Crown argues that enhanced credit can only be justified where the circumstances are individual to the offender and not of universal application to all accused.

So, for example, the Crown argues that loss of remission and statutory release are universal to all remand prisoners and, therefore, do not come within s. 719(3.1) . 21 Third, the Crown submits that the sentencing judge failed to adequately explain why this accused should receive the benefit of enhanced credit as required by s. 719(3.2) . The Crown argues that the sentencing judge’s reasons are inadequate: “failing to connect the what (enhanced credit) with the why.” A result based simply on a statement that it would be “fair” does not adequately explain the rationale.

Argument of the Accused 22 The accused argues that the circumstances that may justify enhanced credit are not limited or defined in the legislation. While the parliamentary record lists situations such as onerous remand conditions and unusual delay beyond an accused’s control as examples of two circumstances where enhanced credit would be justified, they are not the only possible situations.

23 In this case, the sentencing judge looked to other circumstances which justified enhanced credit, such that the accusedwas going to sell the drugs but that he did not actually sell them, nor was he in the process of selling them when arrested, that noevidence was led as to the level of drug trafficking involvement of the accused, that the accused was still youthful and an aboriginaloffender, as well as the loss of statutory remission.

It was all of these factors that were considered when the sentencing judge referred togranting the enhanced credit because of fairness. 24 Further, the accused submits that, even if the sentencing judge granted enhanced credit solely for the loss of remission,that was not an error in principle. The loss of remission, it is argued, constitutes a “circumstance” as contemplated by s. 719(3.1) of theCode. In support of that

interpretation, the accused relies on Johnson and the several cases which have followed Johnson, such as R. v.Hason, 2010 ONCJ 735 , and R. v. Dann, 2011 NSPC 22 . 25 The accused contends that, if the framers of the legislation intended the award of enhanced credit to be restricted, theywould have used the words “exceptional circumstances.” By using the less restrictive words “if the circumstances justify it,” theyintended to allow for the award of enhanced credit in circumstances that are fairly common and, in some cases, universal, such as theloss of remission. Such an

interpretation, it is submitted, is consistent with Parliament’s intention, the rules of statutory

interpretation,and with the Canadian Charter of Rights and Freedoms (the Charter) values. STANDARD OF REVIEW 26 The standard of review on a sentence appeal is well known. An appellate court should not intervene unless there is anerror in principle, a failure to consider a relevant factor, an overemphasis of the appropriate factors or if the sentence is demonstrablyunfit (see R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227 at paras. 46, 48, 52, R. v. M. (C.A.), (SCC),[1996] 1 S.C.R. 500 at paras. 89-90, R. v. L.M., 2008 SCC 31 at para. 14, [2008] 2 S.C.R. 163, and R. v.

Benson (M.) et al., 2012 MBCA94 at para. 161). 27 In the recent case of R. v. Farrah (D.), 2011 MBCA 49, 268 Man.R. (2d) 112, although it did not relate to s. 719(3.1),Chartier J.A. did make the following comments regarding the standard of review applicable to cases involving PSC credit and s. 719(3)of the Code (at para. 8): The judge’s determination as to the amount of pre-sentence custody credit to be awarded under s. 719(3) of the Criminal Code (theCode) is an exercise in discretion and is therefore subject to deference (see R. v. Wust, 2000 SCC 18 at para. 45, [2000] 1 S.C.R. 455,and R. v.

Traverse (L.) et al., 2008 MBCA 110 at para. 82, 231 Man.R. (2d) 123). Assuming no reversible errors of fact or law andbarring a decision so clearly wrong as to amount to an injustice, this court will not interfere …. 28 The Crown argues that the usual deference to the sentencing judge’s decision on credit for PSC is not owed in this case,due to errors in principle committed by the sentencing judge in her

interpretation and application of the Act. 29 In this case, in determining the meaning of the words in s. 719(3.1) of the Code, the sentencing judge was engaged inan exercise of statutory

interpretation. As this court has previously held, questions involving statutory

interpretation are questions of lawgoverned by the standard of review of correctness. See R. v. Rémillard (R.) et al., 2009 MBCA 112 at para. 20, 251 Man.R. (2d) 17. And see on this particular point, R. v. Carvery (L.A.), 2012 NSCA 107 at para. 31, 321 N.S.R. (2d) 321. 30 Provided the sentencing judge has correctly interpreted the law, the application of the correct

interpretation of that lawto the individual accused and the facts of a case is an exercise in discretion that is entitled to considerable deference, as indicated above. WHAT DO THE WORDS “IF THE CIRCUMSTANCES JUSTIFY IT” MEAN AS USED IN SECTION 719(3.1)? 31 The Crown contends that the amendments were passed to change the routine crediting at sentencing of offendershaving served time in custody on a 2:1 ratio. It is submitted that when the language of the

section is given its ordinary meaning in lightof its total context, Parliament’s objective in the Act was to limit credit for PSC. 32 That much is clear and I agree with that contention. See R. v. Mayers (A.W.), 2011 BCCA 365 at para. 23, 310B.C.A.C. 188. There is no question that in passing the amendments to s. 719, Parliament intended to limit a judge’s discretion indetermining the amount of credit to grant an offender for PSC. 33 There is also no question that the amendments change the previous “rule of thumb” where judges generally granted twodays’ credit for each day in custody.

The debates and speeches reveal what is already easily discernible – the general rule of a 2:1 creditwas to be scrapped in all circumstances (Carvery at para. 83): …. … [T]here was a perceived need to address public perception that sentences were being viewed as too lenient due to a lack ofinformation about why and how much credit was being given for time spent in custody. 34 Instead, while the decision to grant any credit at all is still discretionary, the amount of PSC credit is limited to amaximum of 1:1 unless the “circumstances justify it.” If the circumstances justify it, enhanced credit may be given to a maximum of

1.5:1. 35 The amendments are also clear that such enhanced credit is not available to offenders who have been denied judicialinterim release primarily because of their prior criminal record or because they have breached their conditions of release or committed anindictable offence while on bail. 36 Otherwise, the Act is silent as to when circumstances may justify the courts awarding the enhanced credit provided forin s. 719(3.1) of the Code. 37 The Crown submits that s. 719(3.1) is “the safety valve to ensure sentencing is an individualized process.” Therefore,the Crown urges upon us the

interpretation that only exceptional circumstances and circumstances that are unique to the individualwould qualify as justifying enhanced credit under s. 719(3.1) and that loss of remission and parole eligibility are not exceptional orindividual factors by themselves justifying the exercise of the judicial discretion under s. 719(3.1). It is the position of the Crown thatloss of opportunity to earn credit for remission and/or parole is not irrelevant, but it is not a sufficient circumstance, on its own, to justifyenhanced credit. 38 Determining the meaning of a provision in

an Act is an exercise in statutory

interpretation. The modern principle ofstatutory

interpretation is to interpret legislation holistically. This is clear from the direction of the Supreme Court of Canada, whichadopted the comment of Elmer A. Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworth & Co. (Canada) Ltd., 1983) that“[t]oday there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (at p.87). See R. v. D.A.I., 2012 SCC 5 at para. 116, [2012] 1 S.C.R. 149, quoting from Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 at para. 21. 39 Turning first to the words of the subsection, no guidance can be found through resort to the construction of similarlanguage in other federal statutes, since the phrase does not appear elsewhere in Canadian legislation.

Usually the word “circumstances”is linked with the word “exceptional.” That is not the case here (see Johnson at para. 101, and David Daubney’s comments, mentionedbelow at para. 63 of these reasons). 40 As Chief Judge Cozens indicated in R. v. Vittrekwa, 2011 YKTC 64, 275 C.C.C. (3d) 193 (at para. 46): …. It is clear, however, from the choice of the legislators not to utilize words such as “special”, “exceptional” or “unusual” to describethese “circumstances”, that ordinary or common circumstances are sufficient.

The critical factor is that the circumstances are enough, inthe particular case, to justify increasing the credit for remand custody up to the maximum of 1.5:1. 41 Some of the arguments based on importing the requirement of exceptional circumstances into s. 719(3.1) of the Codemay be due to the fact that a marginal note labelled “exception” precedes s. 719(3.1). I would give no weight to the marginal note.Marginal notes are not part of the enactment, but are inserted for convenience of reference only. See s. 14 of the

Interpretation Act,R.S.C. 1985, c. I-21. The Supreme Court has told us on several occasions that marginal notes have limited value when addressing aserious problem of statutory

interpretation. See Imperial Oil Ltd. v. Canada; Inco Ltd. v. Canada, 2006 SCC 46 at para. 57, [2006] 2S.C.R. 447. And see Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis Canada Inc., 2008) at 397- 400, and Pierre-André Côté, Stéphane Beaulac & Mathieu Devinat, The

Interpretation of Legislation in Canada, 4th ed. (Toronto:Thomson Reuters Canada Ltd., 2011) at 73-74. 42 In the Parliamentary debates, several factors were identified by the Minister of Justice as being circumstances thatmight justify enhanced credit. These included poor remand conditions and unnecessary delay in proceedings not attributable to theaccused (see House of Commons, Standing Committee on Justice and Human Rights, Evidence, 40th Parl., 2nd Sess., No. 20 (6 May2009) at 11 (Chair: Ed Fast)).

I note that, while these two situations may be considered individual to the particular accused, they couldhardly be considered exceptional in today’s justice system. 43 With respect to the jurisprudence on this point, loss of remission is a frequently cited factor, but not the most frequent. A review of the cases to date reveals that post-trial delay is the most frequently cited factor that justified enhanced credit.

Whereenhanced credit has been given for loss of remission, it is most often considered in conjunction with other qualitative facts, such as harshremand conditions and their impact on the offender. 44 Circumstances adopted by courts that justify enhanced credit have included: 1) Conditions in remand facilities such as: • lack of programming or counselling available on remand – e.g., R. v. Haly, 2012 ONSC 2302 (QL) (where a ratio of 1.2:1was used); R. v. Mullins (P.E.), 2011 SKQB 478, 388 Sask.R. 221; and R. c.

Auger, 2012 QCCQ 568 (QL); • the number of lockdowns the offender experienced during PSC – e.g., Mullins; R. v. Oates, 2012 ONCJ 461 (QL), but tothe contrary, see R. v. Sayed, 2012 ONSC 843 (QL); • time spent by the offender in solitary confinement – e.g., R. v. Seymour, 2011 BCSC 1682 (QL) (time spent there was forhis own protection); R. c. Guo, 2011 QCCQ 10469 (QL); and • harsh circumstances in the remand facility – e.g., R. v. J.B., 2011 BCPC 158 (QL) (double-bunking, exposed to violence);R. v. Clayton, 2012 ABQB 333 (QL) (overcrowding, had to sleep on the floor); and Auger (no visitors while in PSC).

2) Post-trial delay not attributable to the accused, including delays caused by: • the court – e.g., R. v. Dingwell (D.A.), 2012 PESC 13, 321 Nfld. & P.E.I.R. 263; R. v. B.R.S., 2011 ONCJ 484 (QL); and R.v. Sabatine, 2012 ONCJ 310 (QL) (request for further submissions and time spent drafting reasons); • the need to obtain a pre-sentence report or a Gladue (R. v. Gladue, (SCC), [1999] 1 S.C.R. 688) report ora psychiatric assessment – e.g,. R. v. House (Z.C.) (2012), 319 Nfld. & P.E.I.R. 197 (NL Prov. Ct.); R. v. Sharkey, 2011 BCSC 1541(QL); and R. v.

Mozumdar, 2012 ONCJ 151 (QL); • multiple court appearances for the purposes of sentencing – e.g., R. v. Przybyla, 2012 ABPC 183 (QL); and • the Crown – e.g., R. c. Lefrançois, 2012 QCCQ 5655 (QL). 45 There are also a number of cases which have identified circumstances where denying enhanced credit was justified. Such circumstances included delay caused by the offender and where an offender had a history of breaching court orders. In addition,where offenders have deliberately protracted their remand detention or otherwise endeavoured to manipulate the system, judges may welldiscount the credit ratio. See R. v.

Leggo (R.) (2012), 317 Nfld. & P.E.I.R. 252 (NL Prov. Ct.); R. v. Morris, 2011 ONSC 5206 (QL);J.B.; Johnson; and Sabatine. 46 None of the above factors are especially exceptional and I would conclude that the circumstances that justify enhancedcredit in s. 719(3.1) of the Code need not be exceptional.

This is also the conclusion reached in the Nova Scotia Court of Appeal case ofCarvery, which I will discuss in greater detail later in these reasons. 47 Although I conclude the circumstances need not be exceptional, must they be circumstances unique to the individualcircumstances of the accused? 48 The Crown submits that, in particular, loss of remission and parole ineligibility by themselves are not circumstancesthat justify enhanced credit beyond 1:1, not only because they are not exceptional, but because they are universal to all accused.

TheCrown argues that every offender could invoke the reasons of loss of remission or parole ineligibility while on remand to justifyenhanced credit. Such an

interpretation would render the s. 719(3) regime meaningless. 49 In fact, the Crown argues that Parliament made a clear policy choice on the effects of loss of remission and paroleineligibility on enhanced credit. The Crown states: …. Parliament heard evidence both in favour of and against this policy choice. Attempts in committees of both the House of Commonsand the Senate to amend the Act to change the policy choice around loss of remission and parole ineligibility were defeated.

A carefulreview of the Parliamentary record confirms that in crafting the Act, Parliament was sensitive to the implications the Act creates for lossof remission and parole ineligibility. 50 Federal statutory release is the concept that applies to sentences served in federal penitentiaries, while “earnedremission” is an abatement of a sentence covered by provincial legislation and practice. Federal statutory release is governed by theCorrections and Conditional Release Act, S.C. 1992, c. 20, and provincial remission is governed by the Prisons and Reformatories Act,R.S.C. 1985, c.

P-20, and The Correctional Services Act, C.C.S.M., c. C230. See Clayton C. Ruby, Gerald J. Chan & Nader R. Hasan,Sentencing, 8th ed. (Markham: LexisNexis Canada Inc., 2012) (at para. 13.39): About half of all of those serving determinate federal-length sentences are released at the two-thirds – or “statutory release” – point oftheir sentence. The other 50 per cent are released by way of parole. Only 2 to 3 per cent of federal prisoners serve every day of theirsentences before being released. 51 Remission is earned by a prisoner by obeying prison rules and by actively participating in programs.

That earnedremission may be forfeited in whole or in

part if the prisoner commits a breach of the prison rules. Sections 6(1) and 6(4) of the Prisonsand Reformatories Act make this clear: Remission * 6.

(1) Every prisoner serving a sentence, other than a sentence on conviction for criminal or civil contempt of court where the sentenceincludes a requirement that the prisoner return to that court, shall be credited with fifteen days of remission of the sentence in respect ofeach month and with a number of days calculated on a pro rata basis in respect of each incomplete month during which the prisoner hasearned that remission by obeying prison rules and conditions governing temporary absence and by actively participating in programs,other than full parole, designed to promote prisoners’ rehabilitation and reintegration as determined in accordance with any regulationsmade by the lieutenant governor of the province in which the prisoner is imprisoned.

Forfeiture

(4) Every prisoner who, having been credited with earned remission, commits any breach of the prison rules is, at the discretion of the person who determines that the breach has been committed, liable to forfeit, in whole or in part, the earned remission that stands to the credit of the prisoner and that accrued to the prisoner after July 1, 1978. [*This was the version current as of the date of the accused’s sentencing.] 52 Approximately 95 per cent of imprisoned offenders received provincial sentences and the vast majority of those are released on remission without terms and conditions at approximately the two-thirds point in their sentence (see Ruby, Chan & Hasan at para. 13.38). 53 Almost all of the provinces rely on the federal parole and statutory release rules (see s. 127 of the Corrections and Conditional Release Act ).

In Manitoba, The Correctional Services Act simply provides that the National Parole Board is empowered to address parole in Manitoba (see s. 22). 54 In the present case, the accused has received a jail term of a duration of less than two years and is, therefore, subject to the Prisons and Reformatories Act and The Correctional Services Act . The relevant provisions of the Prisons and Reformatories Act having to do with remission allow for the operation of provincial remission rules (see s. 6 of the Prisons and Reformatories Act , reproduced in para. 51 herein, and

Part 3.1 of the Correctional Services Regulation , Man. Reg. 128/99). 55 In support of its argument that loss of remission and parole are not circumstances that justify enhanced credit because they are not individual circumstances, the Crown filed evidence in the form of various excerpts from the Parliamentary debates. 56 Historically, Canadian courts were generally distrustful of extrinsic materials as an aid to statutory

interpretation. However, that reluctance has been relaxed in recent years and a wide range of legislative history materials are admissible to assist in the

interpretation of legislation. Legislative history of an enactment consists of everything that relates to the conception, preparation and passage of the legislation. See Rizzo at para. 35 . 57 The information gleaned from legislation’s history can be helpful in the exercise of statutory

interpretation where it is relevant and reliable, although it should always be used carefully and with the understanding that each case is fact-specific and the weight to be given the material is to be established on a case-by-case basis. 58 As Justice Cromwell noted recently in Németh v. Canada (Justice) , 2010 SCC 56 , [2010] 3 S.C.R. 281 (at para. 46 ): These suspension provisions were added to the IRPA as consequential amendments when the EA [the Extradition Act , S.C. 1999, c. 18] was enacted in 1999. Their purpose was explained by Departmental officials testifying before Parliamentary committees.

Resort to this material is appropriate where, as here, it is relevant and reliable and provided it is used with caution and not given undue weight …. 59 See also Sullivan at pp. 593-618, and C ô té, Beaulac & Devinat at pp. 453-68. 60 There has been some reliance on the legislative history of Bill C-25 in trying to resolve what Parliament intended by the words and structure of the amendments to s. 719 of the Code . However, the legislative history here should be approached with caution. There is some divergence between the comments made by members of the government and those of their staff.

When David Daubney, the head of the Criminal Law Policy

Section of the Department of Justice, testified on June 1, 2009, before the Standing Committee on Justice and Human Rights, he explained that, in drafting Bill C-25, there was a two-fold legislative intent: to create a bench mark of 1:1, but also to allow for wide judicial discretion up to 1.5:1. 61 For instance, Mr. Daubney had the following exchange with Mr. Brian Murphy, a Liberal MP (at p. 3): Mr. Daubney, I don’t know if you have any evidence to counter what Dr.

Doob presented last time by way of that analogy, but the glaring inconsistency of having someone on remand serve more time than a person normally convicted of an offence troubles me. Do you have anything to offer on that? Mr. David Daubney: Not really. That is one of the problems. The jurisprudence points to three factors that justify some enhancement of the time spent.

One is this one that you bring up, which is going to apply universally to all these offenders now, and that is that there is this loss of remission in the case of provincially sentenced offenders and loss of parole in the case of federally sentenced offenders who have been on remand. That is the one reason; the other relates to conditions, and the other relates to a lack of programming, and so on. Some of the conditions are pretty harsh. So I don’t dispute the evidence you heard the other day. 62 This follow-up question was asked by Mr. Réal Ménard, a Bloc Québecois MP (at p. 3):

…. Why is there a one-to-one ratio? What was the rationale for suggesting that ratio? Mr. David Daubney: The direction we had from our minister and from the government generally was to prepare a bill based on one to one, with an opportunity to go up to 1.5 if the circumstances justified it. Frankly, its impact will be that courts trying to do justice will find that in many cases the circumstances do justify something between one to one and 1.5 to one, but we’ll have to see how that plays out. 63 Mr. Daubney also offered the following opinion regarding the language of s. 719(3.1) (at p. 6): ….

As you know, the more common expression in the Criminal Code is “in exceptional circumstances”, but we deliberately didn’t use that here because the circumstances won ’ t be that exceptional; they’ll be fairly common and, in the case of the parole loss and the remission loss, will be universal . [emphasis added] 64 On the other hand, there is other legislative history that the Crown relies on to argue that loss of remission and parole is not a circumstance that may be considered under s. 719(3.1) of the Code .

Parliament heard evidence, both in favour of and against the argument, that PSC leads to loss of remission and parole ineligibility. Attempts in committees of both the House of Commons and the Senate to amend the Act to change the policy choice around loss of remission and parole ineligibility were defeated.

The Crown submits that this shows that Parliament considered the issue and made a deliberate policy choice. 65 In Johnson , Green J. indicated that it was impossible to determine the intent of Parliament from a reading of the explanations advanced by the government in the course of parliamentary debate as those explanations are contradictory and inconsistent. He summarized the differing comments in the following manner (at para. 102): ….

A comparison of the pertinent comments of the two primary government spokespersons for Bill C-25 – the Minister of Justice and David Daubney, General Counsel to the Department of Justice – illustrates differing approaches taken to this phrase. The Minister, in the House of Common and Committee, stressed that the “general rule” is one of 1:1 and that any departure from this norm would likely rest on more qualitative considerations such as oppressive remand conditions or their protraction through unconscionably long pre-trial delays for which the offender cannot be held responsible.

His General Counsel, on the other hand, was of the view that the loss of remission and delays in parole eligibility are burdens that will be borne by all remand prisoners as a result of the Bill; as a result, these quantitative disadvantages alone will in virtually every case amount to circumstances justifying credit in excess of the 1:1 standard. 66 In trying to discern parliamentary intent from the comments of the Minister of Justice, Mr.

Daubney’s comments and the discussions and actions in the committees of both the House of Commons and the Senate, the Nova Scotia Court of Appeal in Carvery concluded that the inconsistency in the comments by the various actors resulted in an inability to rely upon the legislative history for any clear direction for the purpose of statutory

interpretation. The court stated (at para. 84): .... In my opinion, in the circumstances of this case, it is simply not appropriate to try to rely on these extrinsic materials to try to discern what Parliament intended by the language and structure of the legislation. 67 I agree with the conclusion of the court in Carvery on this point. 68 The cases to date have not pointed to a single direction either.

Many of the decisions have held that a judge is prohibited from granting anything more than 1:1 credit for PSC unless satisfied that exceptional and individual circumstances exist to justify increasing the credit to a maximum of 1.5:1 (see, for example, Morris ).

Others have held that exceptional circumstances need not be shown in order for a judge to conclude that “the circumstances justify” a ratio of up to 1.5:1 (see Johnson and Vittrekwa ), and that loss of remission and parole may be one of the circumstances that justify enhanced credit. 69 In Johnson , the defence brought a motion under the Charter challenging the constitutional validity of the new amendments. Green J. found that if the amendments were given a proper

interpretation, there was no Charter violation. He found the phrase “if the circumstances justify it” to be ambiguous and concluded, after a lengthy and careful analysis (at para. 162):

As I see it, the central issue comes down to the meaning of those five words that span the 1:1 and 1.5:1 regimes: “if the circumstances justify it”. Applying appropriate canons of statutory

interpretation, and read in the sentencing framework in which it is embedded, the word “circumstances” in this phrase includes the loss of remission and delayed parole eligibility which, in turn, “ justify” a credit enhancement beyond a maximum ratio of 1:1. …. 70 In Vittrekwa , the accused was charged with aggravated assault. He consented to a remand in custody and, subsequently, pleaded guilty to assault with a weapon. Unlike the Johnson case, but similar to the case at bar, no Charter issues were raised.

The accused relied upon affidavit and oral evidence that the vast majority of serving prisoners at the Whitehorse Correctional Centre receive their full remission. Cozens C.J. Terr. Ct. found, based on the evidence adduced, that “it is likely that Mr. Vittrekwa, based upon his conduct while on remand, would have received full remission had he been a serving prisoner rather than a remand inmate” (at para. 6). 71 The court in Vittrekwa held that enhanced credit of 1.5:1 was available whenever there was evidence that the accused would be deprived of an opportunity to earn remission.

This did not create a universal rule of enhanced credit, since the accused had to show that he had lost an opportunity to earn remission while on remand and that he would therefore end up serving a longer time in custody than someone who had not been detained in PSC. 72 Similar to Vittrekwa was the reasoning of the court in R. v. Desjarlais , 2012 NWTTC 2 (QL). In that case, Gorin J. Terr. Ct. accepted that the words “if the circumstances justify it” contemplate circumstances that are individual to the accused.

However, the court also held that (at para. 17): …. … [I]f an Accused is able to establish that her behaviour during her detention was such that, were she a sentenced inmate, she would in all likelihood have received a reduction of the jail-term imposed on her, she should receive credit that mirrors this reduction. .… … [D]oing so takes into account the circumstances of the Accused on an individual basis. 73 The court in Desjarlais reasoned that Parliament, in enacting the Truth in Sentencing Act , would certainly have been aware of the provisions it had previously enacted in the Prisons and Reformatories Act , which credited prisoners with remission if they were of good behaviour and actively participated in programs and gave the discretion to prison officials to deny remission upon bad behaviour. 74 On the other hand, Harvison Young J. in Morris considered but declined to adopt the reasoning of Green J. from Johnson .

In fact, Harvison Young J. rejected any universally applicable factors that may have been used to justify granting 2:1 credit prior to the recent amendments. She saw no ambiguity in the section. Instead, she held that (at paras. 31, 34): …. Enhanced credit of 1.5:1 pursuant to subsection (3.1) is the exception. The general rule is articulated first and the exception follows. I am unable to accept Mr. Rippell’s argument that, in effect, the norm should be enhanced credit whenever the offender has served pre-sentence time. ….

Parliament would not have created an exception that was meant, in practice, to displace the very rule it created in the previous subsection. 75 A number of appellate decisions have commented in obiter on various aspects of the amendments. (So, for example, in R. v. W.M. , 2010 BCCA 370 , 290 B.C.A.C. 154, the court simply notes that s. 719(3.1) of the Code was not retroactive.) More recently, the Newfoundland and Labrador Court of Appeal dealt with the issue briefly in the case of R. v. English , 2012 NLCA 64 (QL). The accused was convicted of aggravated assault and breaching his conditional sentence order.

With respect to PSC, the court simply gave him PSC credit of 1:1, stating that “Mr. English did not point to any basis on which it would be appropriate to grant him credit in excess of one day for each day served on remand” (at para. 27). 76 However, the Nova Scotia Court of Appeal dealt with the

interpretation of the phrase “if the circumstances justify it” extensively in the recent case of Carvery . In that case, by the time of sentencing, the accused had spent nine and one-half months in custody. The sentencing judge granted him enhanced credit of 1.5:1. Upon appeal, the Crown in that case submitted similar arguments to those presented to this court. The Court of Appeal concluded that the circumstances that might justify enhanced credit do not have to be exceptional.

In addition, after a careful and detailed analysis, the court also concluded that the universality of the circumstances did not prevent their application in a particular case and that the unavailability of remission and statutory release are acceptable grounds upon which to award enhanced credit, in appropriate circumstances, under subs. (3.1). 77 Unlike the Johnson case, Beveridge J.A. in Carvery did not find the provision ambiguous. However, he did find that the more restrictive

interpretation urged upon it by the Crown was not in accord with the principles of statutory

interpretation and, in fact, would offend the fundamental principle of proportional punishment. 78 This was so since examining the scheme of the Act requires not only an analysis of the nature of the new provisions, but also a consideration of how these amendments fit within the legislative framework of the part of the Code dealing with sentencing.

Placing the amendments in that legislative framework provides context that can assist in discerning the intent of Parliament. (SeeSullivan at p. 364). 79 The court in Carvery held that giving the provisions the

interpretation urged upon the court by the Crown would offendboth the principle of proportionality mandated by s. 718.1 of the Code and would be contrary to s. 718.2(b). For example, assume thattwo individuals of the same age, education and criminal history jointly commit a serious offence with the same degree of involvementand culpability. One is released on bail due to having sufficient resources. The other offender is detained. If the detained offender isgiven only 1:1 credit, even assuming full remission credit, the two individuals will serve different amounts of time in custody.

On theother hand, credit of 1.5:1 for PSC would place these two individuals in the same situation with respect to the amount of time actuallyspent in custody. Contrary to the submission of the Crown, an accused serving PSC has no incentive to delay proceedings even if theyreceive one and a half days for each day served in PSC because it will not result in an effectively shorter sentence, i.e., less time incustody. It will only result in a sentence equal to that of someone who had not been detained in PSC. 80 The court in Vittrekwa also considered the

interpretation of the provision within the context of the general scheme ofsentencing. In particular, Chief Judge Cozens held that, since aboriginal people were likely to constitute a significant portion of thoseindividuals who, due to systemic discrimination and dysfunction were unable to proffer viable plans for judicial interim release and sowere most likely to spend time in pre-trial custody, to adopt the more restrictive

interpretation of s. 719(3.1) would offend not only thesentencing principles of proportionality in s. 718.1 and similarity in s. 718.2(b), but also that in s. 718.2(

e) regarding aboriginaloffenders. Chief Judge Cozens commented on this point (at para. 65): It would be contrary to the principles of justice to create a legal environment with a coercive atmosphere where, because of the prospectof spending more time in custody due to a potential loss of remission, an accused does not avail him- or herself of his or her legal rights. This coercive effect would, in all likelihood, disproportionately impact those who are already the most disadvantaged in Canadiansociety, being those who are least likely to have the resources, both socially and economically, to obtain judicial interim release. 81 In

summary then, I conclude that a reading of the provision in a holistic manner leads to the conclusion that thecircumstances justifying enhanced credit need not be exceptional. However, they do need to be individual to the accused. Loss ofremission and statutory release may be individual circumstances justifying enhanced credit where the accused can bring evidence to thecourt that, had he or she been a sentenced inmate, they would have most probably received remission and/or statutory release.

Justbecause the circumstance will be applicable to many, if not most, accused does not mean it cannot be a circumstance relevant to anindividual accused (see Desjarlais at paras. 17-18). Later in these reasons I will discuss the nature of that evidence and the question ofonus. 82 I disagree with the Crown that to allow a court the discretion to consider the loss of earned remission would renders. 719(3) of the Code redundant and create an absurd consequence where no one would receive 1:1 credit except those denied bail. Atrial judge has discretion to grant or not grant the enhanced credit.

For example, an otherwise eligible accused who intentionally delayedproceedings by continuously discharging counsel, or an accused who created delay by not cooperating with probation officers during thepreparation of the pre-sentence reports, or an accused who refuses to participate in treatment programs may not receive enhanced creditdespite the loss of earned remission or may not receive any credit at all, depending on the discretion of the sentencing judge.

All thecircumstances should be taken into account. 83 But, on the other hand, if the accused can show that his or her behaviour on remand was such that they would havereceived remission had they been a sentenced prisoner, that is a factor that a court may take into account when exercising its discretion toaward enhanced credit for PSC. 84 This

interpretation also accords with the conclusion of the Nova Scotia Court of Appeal in Carvery (at para. 85): In the end, taking into account the words of ss. 719(3) and (3.1) in their grammatical and ordinary sense and read in the entire context ofthe legislative scheme and the object of the Act, the legislation provides for judicial discretion to grant credit of up to 1.5:1 for time spentin pre-sentence custody if a judge is satisfied that the circumstances justify it, which includes consideration of the potential loss for theoffender of earned or statutory remission and parole. …. 85 Based on evidence specific to the particular offender’s behaviour while on remand, the loss of remission is transformedfrom a universal characteristic into an individual one.

ONUS OF PROOF 86 As is plain from a reading of s. 719(3.1) of the Code, the provision itself does not specify who must prove “if thecircumstances justify” enhanced PSC credit. The Crown argues that the legal burden lies on the accused to establish, on the balance ofprobabilities, circumstances that would justify or warrant deviation from the general rule and attract enhanced credit. I agree withthat proposition. 87 The vast majority of the cases that have considered this point under the new legislation place the onus on the accused toprovide evidence justifying the use of the 1.5:1 ratio. See, for example, R. v.

D.W.J., 2012 BCPC 15 (QL) at paras. 65, 71-72; R. v.Sousa, 2011 ONSC 6463 at para. 45; Vittrekwa at paras. 70, 75; R. v. Abubeker, 2011 ONCJ 337 (QL) at paras. 14-15; Johnsonat para. 189; R. v. Gosselin, 2011 QCCQ 11688 at paras. 71, 77. 88 In fact, while decided under the old regime, R. v. Roulette (P.), 2005 MBCA 149, 201 Man.R. (2d) 148, may be

significant for its comments regarding the onus of proof with respect to PSC credit. Huband J.A. made the following comments (at para.25): It would seem almost invariable that it will be the Crown rather than the accused seeking a departure from the two-to-one norm. Itshould therefore be the Crown’s responsibility to establish facts which would support a lesser credit than two-to-one, either by agreementor by tendering evidence.

It would be open to defence counsel to tender evidence in response. (Obviously, if defence counsel seeks alarger credit than two-for-one, the onus will fall on the defence to establish that case.) 89 Modified to reflect the new regime, Roulette may be understood as standing for the proposition that, when credit of lessthan 1:1 is sought, the burden will be on the Crown, but, when credit greater than 1:1 is sought, the burden will be on the accused toestablish “circumstances” that justify enhanced credit. 90 In fact, a reading of the many trial-level cases across the country leads me to the conclusion that 1:1 is now theestablished practice and that any party seeking to depart from established practice bears the onus of proof.

See, for example, R. v.Wheeler (C.P.) (2011), 315 Nfld. & P.E.I.R. 25 at para. 119 (NL Prov. Ct.); Sousa at para. 45; R. v. Roberts, 2011 BCPC 329 (QL) atpara. 33; R. v. Jones, 2011 ONSC 5330 at para. 70; Abubeker at para. 15; R. v. Sparkes (W.L.) (2011), 315 Nfld. & P.E.I.R. 71at para. 10 (NL Prov. Ct.); R. v. Cull (M.J.) (2011), 311 Nfld. & P.E.I.R. 295 at para. 36 (NL Prov. Ct.); R. v. Lee (A.S.) (2011), 312Nfld. & P.E.I.R. 162 at para. 37 (NL Prov. Ct.); R. c. Robertson, 2012 QCCS 1027 (QL) at para. 41; R. v. Hindmarch, 2010 BCSC 1257at para. 31, 1 M.V.R. (6th) 131.

WHAT EVIDENCE IS NECESSARY FOR ENHANCED CREDIT? 91 With respect to enhanced credit, the courts seem to require some evidence, although the manner in which that evidenceor information is presented varies considerably. In the case of R. v. Joseph, 2012 BCCA 359 (QL), the issue of the nature of theevidentiary burden imposed by s. 719(3.1) of the Code was addressed, albeit in obiter. As Harris J.A. explained (at paras. 31-33): The Truth in Sentencing Act does not explicitly amend the traditional sentencing procedure. There is nothing in s. 719 that amends theprocedure by implication.

There is no reason in principle to depart from the general rules applicable to all sentencing hearings when acourt is asked to decide whether the circumstances justify granting enhanced credit. Sections 723 and 724 of the Code make it clear that a court may rely on submissions, hearsay and agreed facts in sentencing. R. v.Gardiner, (SCC), [1982] 2 S.C.R. 368, 68 C.C.C. (2d) 477, confirms that strict evidentiary rules do not apply unlessmatters are contested. ….

In my view, the same general principles that govern providing the court with the necessary facts or information for the purpose ofsentencing apply to s. 719(3.1). 92 Thus, there are cases where the evidence was presented through viva voce testimony by the accused and prisonofficials, through affidavits or agreed statements of fact, or simply presented as part of counsel’s submissions (see, for example, Johnson;Desjarlais at para. 21; and R. v. Zhu, 2011 ONCJ 163 (QL)). In R. v.

Edwards, 2012 ONCJ 519 (QL), counsel filed letters from prisonofficials stating how many days the facility had been in lockdown during the offender’s PSC. 93 While the accused must provide some reason for the court to award enhanced credit, the nature of the evidence requiredshould not overly complicate the sentencing process and exacerbate the problems currently facing the prison system. It is not realistic toalways require prison officials to attend sentencing hearings in order to provide viva voce evidence of prison conditions or the conduct ofthe accused while on remand.

Instead the emphasis should be on credible and relevant information. Such information could be placedbefore the court by way of an agreed statement rather than as evidence per se. See, for example, Vittrekwa at para. 70; R. v. I.T.W., 2012BCPC 305 (QL) at para. 67. 94 The bottom line is, as Green J. noted in Johnson (at para. 189): …. Further, and here adapting the words of Cole J. in R. v. Duff, [2010 ONCJ 493 (QL)], before acting on such claim [of arduous oroppressive remand conditions] “a sentencing judge should have some evidence that the ... [remand] conditions ... have been particularlyonerous”.

This may not prove an arduous evidentiary burden, but it is one that need be met where the exercise of judicial discretionreplaces the application of settled formulae. INADEQUATE REASONS

95 The Act specifies that the judge must give reasons for any credit given, whether that credit is less than 1:1, 1:1 orenhanced credit. The Crown has argued that the judge in this case did not give sufficient reasons. 96 As Chartier J.A. recently noted in the case of R. v. Oddleifson (J.N.), 2010 MBCA 44, 255 Man.R. (2d) 68, leave toappeal to S.C.C. denied, [2010] S.C.C.A. No. 244 (QL) (at para. 30): The standard of review with respect to the insufficiency of reasons is the standard of adequacy.

Reasons will not be inadequate if, whenread in their entire context, they fulfill the threefold purpose of informing the parties of the basis of the verdict, providing publicaccountability and permitting meaningful appeal (see R. v. R.E.M., 2008 SCC 51 , [2008] 3 S.C.R. 3; 380 N.R. 47; 260B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51). 97 The Quebec Court of Appeal case of R. c. Chicoine, 2012 QCCA 1621 (QL), involved offences committed both beforeand after the coming into force of the amendments.

While the court concluded that the sentence was not unfit and did not warrant itsintervention, it also noted that the sentencing judge failed to provide reasons for using the 1.5:1 ratio instead of 1:1, contrary to s.719(3.2) of the Code. Consequently, the trial judge committed an error in principle.

While the Quebec Court of Appeal acknowledgedthat, pursuant to s. 719(3.4) of the Code, the failure to comply with this obligation does not affect the validity of the sentence imposed,since there were no reasons given for the enhanced credit, the appeal court owed no deference to the sentencing judge’s decision withrespect to PSC credit. 98 Thus, in the result, the Court of Appeal only credited the accused for PSC using the ratio of 1:1.

This would appear tobe due to the fact that there was no evidence of circumstances justifying the use of any higher ratio (i.e., the defence failed to dischargeits evidentiary burden). 99 I do not believe the reasons given by the sentencing judge in this case were adequate. She indicated that issues offairness required the enhanced credit.

The accused argues that the issues of fairness include, besides the loss of statutory remission, theother mitigating factors mentioned by the sentencing judge, which include that the accused was not actually in the process of sellingdrugs when he was arrested, that no evidence was led as to the level of drug trafficking involvement by the accused and that he was stilla youthful and aboriginal offender. However, these issues relate to the nature and length of his sentence, not to the question of PSCcredit, which credit is given after the fit and appropriate sentence has been determined (see R. v.

Irvine (C.W.), 2008 MBCA 34 at para.27, 225 Man.R. (2d) 281). With respect to the reasons for granting enhanced credit, other than the loss of remission, it is not clear whatissues of fairness the sentencing judge relied upon to come to her decision. 100 Similar to the Quebec Court of Appeal in Chicoine, while the inadequacy of reasons for giving enhanced credit does notinvalidate the sentence, the error in principle means that this court owes no deference to the sentencing judge’s decision to awardenhanced credit.

THE GRANTING OF ENHANCED CREDIT IN THIS PARTICULAR CASE 101 Having come to the conclusion that, in certain circumstances, loss of remission and statutory release may qualify forenhanced credit, it must still be determined whether enhanced credit should have been awarded in this case. 102 The Crown argues that this accused was caught trafficking for a third time while being a fugitive and was also chargedwith yet another trafficking offence.

It is submitted that his gang membership and long history of criminal conduct made rehabilitationunlikely, and denunciation and deterrence were the overriding sentencing considerations in this case. 103 While the above factors are certainly relevant to the determination of sentence, they are not relevant to the question ofPSC credit. PSC credit is not related to the gravity of the offence or the moral blameworthiness of the offender. At sentencing, theCrown put all of the aggravating factors before the court and requested a total sentence of 24 months.

The sentencing judge took all ofthe factors into consideration, including deterrence and denunciation, and imposed an effective sentence of 24 months as requested bythe Crown.

The determination of credit for PSC is based on other factors related to the circumstances surrounding the accused’s remandtime as well as his conduct during that period of time, although I acknowledge that one’s criminal record may have some impact on thelikelihood of parole. 104 Turning to those factors, it is relevant to note that, unlike the accused in Vittrekwa and Desjarlais, the accused here didnot make any submissions or bring any evidence to fulfill his onus of showing, on the balance of probabilities, that his individualcircumstances justified enhanced credit.

He acknowledged that his remand time was not more onerous than that of a sentenced prisoner. The Crown submitted that the accused had not used his remand time usefully, in terms of completing any programming or workingwithin the institution. His counsel submitted that that was due to the fact that he was moved frequently, but again, nothing was providedother than counsel submissions. In fact, the evidence indicated that he spent most of his remand time in Headingley. 105 In the Johnson case, there was evidence before the court that the accused would be entitled to early remission becauseof his good behaviour.

In this case, the evidence is actually to the contrary. With respect to his conduct during remand time, the accusedwas convicted of assaulting an inmate and received a period of time in segregation. It is true that he was appealing that decision and Isuppose could have adjourned the sentencing hearing until that appeal had been heard. However, at the time of sentencing he had been

convicted of conduct that could have affected his remission. 106 I understand that, with respect to the receipt of remission or statutory release, eligibility only arises from serving the actual sentence. However ( Carvery at para. 65 ): …. … [A] judge can make an assessment, a prediction if you will, whether an offender being sentenced would be likely to earn remisson or be granted parole. ....

Where there is little prospect of parole, or earned remission, a credit greater than 1:1 is not likely to be appropriate. 107 I agree with Chief Judge Cozens in Vittrekwa that the evidence required to establish the impact on the individual accused justifying enhanced credit need not be overly onerous. It certainly need not be oral evidence, as was the case in Vittrekwa .

However, there was no evidence at all here as to whether this accused was a likely candidate for remission or parole. 108 Given the accused’s conduct while on remand, including the disciplinary infraction for assaulting another inmate, and the lack of participation in programming without explanation, I would not award the accused enhanced credit, but only 1:1 credit for his PSC. CONCLUSION 109 Credit for PSC is discretionary.

However, as a general rule, credit as set out in s. 719(3) of the Code on a 1:1 basis should be given for time spent in custody prior to sentencing, unless there is some good reason for denying it (see, for example, English at para. 28 ). On the other hand, enhanced credit on a 1.5:1 basis, as set out in s. 719(3.1) of the Code , may be given when the accused can show, on the balance of probabilities, that the circumstances justify it, in their individual case. 110 The circumstances that may justify enhanced credit in s. 719(3.1) of the Code do not have to be exceptional.

The language of the statute does not expressly refer to exceptional circumstances. In this conclusion, I agree with the Nova Scotia Court of Appeal’s decision in Carvery . 111 Loss of ability to earn remission and statutory release may be a circumstance that a court could take into consideration when exercising its discretion to award enhanced credit. Just because the vast majority of prisoners receive remission or parole does not make these events universal.

The fact that evidence could be adduced in a large number of cases to justify the awarding of enhanced credit in no way detracts from the justification for awarding such enhanced credit in the individual case. Where the accused can bring evidence of good behaviour on remand so that it would appear that had he been a sentenced prisoner he would have received credit for remission, then the loss of remission is transformed from a universal characteristic to one personal to each offender, thus bringing it within the ambit of s. 719(3.1) of the Code . 112 It is important to note that this

interpretation is in keeping with the legislative history and with the fundamental principle of sentencing, which is that of proportionality. If offenders are not granted 1.5:1 PSC credit, they will end up serving more time than similarly situated offenders who did not serve any time in PSC. Two accused charged and convicted of the same crime and otherwise equally culpable and in otherwise similar circumstances would spend different amounts of time in custody if one remained in PSC while the other received bail.

This would have particularly detrimental effects upon the disadvantaged and, in particular, against aboriginal accused. 113 The onus of proof under s. 719 of the Code on the balance of probabilities should rest on the party seeking to use a ratio other than 1:1. Thus, the onus should be on the Crown on the balance of probabilities to show cause why credit should be denied or given on less than a 1:1 basis. The onus for enhanced credit beyond 1:1 is on the accused. 114 In both cases, where the general rule of 1:1 is departed from, evidence should be brought to justify the departure.

Given the relaxed evidentiary rules in a sentencing hearing and in an attempt to avoid clogging the courts any more than is necessary, credible information and/or hearsay evidence may be tendered, as is the case when other issues are disputed in a sentencing hearing. The accused must demonstrate by credible information or adduced evidence that the enhanced credit ought to be applied in his or her case. 115 Leave to appeal the sentence is granted.

The sentence appeal is allowed, varying the accused’s credit for time spent in custody before July 12, 2011, from one and a half days for each day spent in custody to a credit of one day for each day spent in custody, resulting in a sentence of imprisonment for the accused of 13 months commencing July 12, 2011. J.A. I agree: J.A. I agree: J.A.