R. v. Baron (C.M.), 2014 MBCA 43

Citation: R. v. Baron (C.M.), 2014 MBCA 43 Date: 20140507 Docket: AR 12-30-07840 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Holly C. Beard Mr. Justice William J. Burnett BETWEEN : HER MAJESTY THE QUEEN ) E. C. Pauls ) for the Appellant Respondent ) ) N. M. Cutler - and - ) for the Respondent ) COLIN MURRAY BARON ) Appeal heard: ) October 16, 2013 (Accused) Appellant ) ) Judgment delivered: ) May 7, 2014 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or a witness(es) (see s. 486.4 of the Criminal Code ). CHARTIER C.J.M. Introduction, Issues and Standard of Review [ 1 ] The accused was convicted of one count of sexual assault and one count of uttering threats. On October 16, 2013, we dismissed the conviction appeal, but reserved decision on the sentence appeal. [ 2 ] This sentence appeal turns on the proper

interpretation to be given to s. 5 of the Truth and Sentencing Act , S.C. 2009, c. 29 (the Act ). The Act amended s. 719 of the Criminal Code and provides: Application – persons charged after coming into force 5. Subsections 719(3) to (3.4) of the Act, as enacted by

section 3, apply only to persons charged after the day on which those subsections come into force. [emphasis added] [ 3 ] The offences committed by the accused occurred in 2008. The charges were laid in 2011. In between those dates, on February 22, 2010, the Act came into force. The Act capped the amount of pre-sentence custody credit to a maximum of one day for each day spent in custody (on a 1:1 basis), unless “the circumstances” justified an increase to a maximum of one and one-half days (on a 1.5:1 basis).

Prior to the Act , the general rule in this province was to give pre-sentence custody credit on a 2:1 basis. In this case, the sentencing judge held that the Act applied to the accused and that, as a result, the standard 2:1 pre-sentence custody credit was no longer

available to him. He stated that: ... [A]ll people who are charged after the amendments are subject to the provisions of the amendments, even if the offence was committed before the effective date of the amendments. …. If Parliament had intended the provisions to apply to offences committed after the amendments and not just to charges, Parliament would have provided that in the legislation. …. [ 4 ] The principal issue is whether the sentencing judge erred when he held that the Act applied to the accused. In the criminal law context, questions involving statutory

interpretation are questions of law to be reviewed on the standard of correctness. The ancillary issue is, if the Act does apply, did the sentencing judge err by failing to find that the circumstances of this case justified an increase in the credit for pre-sentence custody to one of 1.5:1. [ 5 ] The appeal on sentence for this matter was reserved by reason of the fact that R. v. Clarke , 2013 ONCA 7 , 115 O.R. (3d) 75 , which dealt with the identical issue, was pending before the Supreme Court of Canada.

While the appeal was heard and dismissed on January 24, 2014, reasons were delivered on April 11, 2014 ( see R. v. Clarke , 2014 SCC 28 ). The Supreme Court of Canada concluded that the Act does apply to an accused who committed offences before the Act came into force but was charged after it came into force. In other words, the accused in this case would be subject to the credit limits stipulated in the Act . [ 6 ] For the reasons that follow, I would grant leave to appeal and allow, in part, the appeal against sentence.

Analysis [ 7 ] With respect to the first issue, the accused submitted that the sentencing judge erred by interpreting the Act in a manner inconsistent with s. 11(

i) of the Canadian Charter of Rights and Freedoms (the Charter ). The Crown argued that this court could not consider the Charter challenge since the accused had not complied with the notice requirements found in The Constitutional Questions Act , C.C.S.M., c. C180 . After reviewing submissions at first instance and on appeal, it became clear to me that the accused was not attacking the constitutionality of the Act , but rather, was asking the decision maker to import Charter values to its statutory

interpretation of the Act . [ 8 ] The use of Charter values in statutory

interpretation is a separate issue from a challenge to the constitutional validity or applicability of a law. The former has been called the “Presumption of compliance with constitutional norms” or Charter values (Ruth Sullivan, Sullivan on the Construction of Statutes , 5th ed. (Markham: LexisNexis Canada Inc., 2008) at 461-65). During the ordinary exercise of statutory

interpretation, courts may refer to Charter values when there is an ambiguity in the statute. In the absence of ambiguity, Charter values may not be used. Put another way, Charter values may only be used in interpreting ambiguous statutes.

As Abella J. stated in the Supreme Court of Canada’s decision in Clarke , “[t]he requirement of statutory ambiguity [is] a prerequisite to the application of Charter values” (at para. 15). [ 9 ] The Supreme Court of Canada concluded that there was no ambiguity in the Act and that, as a result, this precluded “the application of the interpretive assistance of Charter values” (at para. 12). Therefore, I can quickly conclude that the sentencing judge was correct; first, when he refused to import Charter values to his

interpretation of the Act and, second, when he found that the Act applied to the accused. [ 10 ] The remaining issue is whether the sentencing judge erred by failing to find that the “circumstances” of this case justified an increase in the credit for pre-sentence custody to one of 1.5:1. This question was recently considered by the Supreme Court of Canada in R. v. Summers , 2014 SCC 26 . Karakatsanis J., for the court, framed the issue, pointed to numerous appellate court decisions (which included our decision in R. v.

Stonefish (S.T.) , 2012 MBCA 116 , 288 Man.R. (2d) 103 ) and drew her conclusions as follows (at paras. 6-7): .... We must interpret the provisions to determine what “circumstances” justify enhanced credit of up to a rate of 1.5 to 1. The appellant, the Attorney General of Ontario, argues that the loss of eligibility for parole and statutory release cannot be a “circumstance” justifying enhanced credit under the new s. 719(3.1) of the Criminal Code . The Ontario Court of Appeal in this case and the Nova Scotia Court of Appeal in the companion case, R. v.

Carvery , 2012 NSCA 107 , 321 N.S.R. (2d) 321 , came to the opposite conclusion, and held that the loss of eligibility for parole and statutory release is a “circumstance” that can justify enhanced credit. In my view, while the Truth in Sentencing Act caps pre-sentence credit, it does not limit the “circumstances” that justify granting credit. Where Parliament intended to alter existing practice, as with respect to the maximum amount of credit, it did so expressly. However, the legislation excludes no particular “circumstances” from consideration.

Had Parliament intended to alter the well-established rule that enhanced credit compensates for the loss of eligibility for early release, it would have done so expressly. [ 11 ] Subsections 719(3) and (3.1) of the Code state:

Determination of sentence 719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day 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). [ 12 ] The essence of the Summers decision is that sentencing judges are to continue the deeply entrenched and long-standing practice endorsed by the Supreme Court of Canada (see R. v. Wust , 2000 SCC 18 at para. 45 , [2000] 1 S.C.R. 455 ; and United States of America v. Ferras; United States of America v.

Latty , 2006 SCC 33 at para. 90 , [2006] 2 S.C.R. 77 ) of awarding enhanced credit for both the quantitative consequences of pre-sentence detention arising from the loss of eligibility for early release and parole and the qualitative consequences relating to the condition of remand custody including programming opportunities. The principal variation from Wust is that the standard rate of 2:1 is now capped, as a result of the Act , to a maximum rate of 1.5:1. However, the Supreme Court of Canada recognized that the enhanced credit is not to be granted in every case (at para. 48): ….

Where an accused falls under an explicit exception to s. 719(3.1) (for instance, because she has been detained for breach of bail conditions), the one-for-one cap set by s. 719(3) will apply. Moreover, enhanced credit need not be granted in every case. For example, when long periods of pre-sentence detention are attributable to the wrongful conduct of the offender, enhanced credit will often be inappropriate. Section 719(3) continues to exist for such cases. [ 13 ] In this case, the sentencing judge found that the Act altered the practice of granting the enhanced credit.

He held that there now had to be “exceptional” circumstances and “very good reason” to grant it. It has now been determined, as a result of the Supreme Court of Canada decision in Summers , that this is not the case. [ 14 ] In light of the above, leave to appeal sentence is granted. The accused will be given credit for his 155 days of pre- sentence custody at the rate of 1.5:1. In all other aspects, the sentence remains the same. C.J.M. I agree: J.A. I agree: J.A.