R. v. Takawgak, 2015 NUCJ 40

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Takawgak , 2015 NUCJ 40 Date: 20151023 Docket: 11-13-29 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Silas Takawgak ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): A. Porteous; S. Wheildon Counsel (Accused): D. Berg Location Heard: Igloolik, Nunavut; Iqaluit, Nunavut Date Heard: January 13-15, 2015; June 5, 2015; October 23, 2015 Matters: Criminal Code , s. 146(1); 151 x2; 243.4; 245; 246.1 x2; 271 x3; Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 11(i); Truth in Sentencing Act , SC 2009, c 29 REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication) Amended Decision: An amended decision was issued on April 5, 2016; the corrections have been made to the text and the amendment is appended to this judgment.

I. INTRODUCTION [ 1 ] Mr. Takawgak has been found guilty of a number of offences that occurred in the 1980s and 1990s. [ 2 ] All of the offences predate the enactment of the amendments to the Criminal Code , RSC 1985, c C-46 [Criminal Code], set out in the Truth in Sentencing Act , SC 2009, c 29 [the Act]. The Act limits the amount of time that can be credited to an offender for time spent in pre-trial custody. [ 3 ] The Defence challenges the constitutionality of these amendments in the context of this case on the grounds that they contravene

Section 11 (

i) of the Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

Section 11 states that, if a punishment has varied between the time of the offence and the time of sentencing, an offender is entitled to the lesser punishment. II. BACKGROUND [ 4 ] Mr. Takawgak is before the court for sentencing on three sets of offences: the first set occurred between 1987 and 1988; the second, between 1993 and 1996; and the third, between 1994 and 1998. Mr. Takawgak was charged with the offences on March 13, 2013, and was found guilty on February 6, 2015.

The Act came into force on February 22, 2010. [ 5 ] The Act applies to all offenders charged after the date it came into force, regardless of the date of the offence. Accordingly, the credit that Mr. Takawgak can receive for his time in pre-trial custody is limited by the Act. III. RELEVANT LEGISLATION [ 6 ] Although the

section numbers have changed over the 1980s and 1990s, the substance of the Criminal Code provision relating to credit for pre-trial custody had, prior to the Act , remained unchanged since 1970. It read as follows: In determining the sentence to be imposed on a person convicted of an offence, a justice, provincial court judge or judge may take into account any time spent in custody by the person as a result of the offence. [ 7 ] The Act has amended the relevant section. It now reads as follows: 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 unlessthe reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custodyunder subsection 524(4) or (8). [8]

Section 11(

i) of the Charter states: Any person charged with an offence has the right if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time ofsentencing, to the benefit of the lesser punishment. IV. ISSUES [9] There are three issues to be determined: 1. Whether pre-trial custody is “punishment” for an offence? 2. If pre-trial custody is “punishment,” whether the punishment has varied between the time of the commission of the offence and thetime of sentencing? and, 3.

If pre-trial custody is “punishment” for an offence and the relevant provisions of the Act contravene s. 11 of the Charter, whetherthese provisions can be saved under s. 1 of the Charter? V. CASE LAW A. Is pre-trial custody punishment? [10] In R v Rodgers, 2006 SCC 15, 207 CCC (3d) 225 [Rodgers], the Supreme Court of Canada considered the validity of a CriminalCode provision permitting judges to authorize the taking of DNA samples from offenders convicted prior to the provision having beenenacted. One of the issues to be determined was whether the impugned provision contravened s. 11(

i) of the Charter, on the basis that itamounted to an additional punishment that was not available at the time the offence was committed. [11] In Rodgers, the court referred to its earlier decision in R v Wigglesworth, (SCC), [1987] 2 SCR 541, 37 CCC (3d)385, in which a two-prong test had been articulated for determining if the s. 11 Charter provisions were engaged. Under this test, aperson can claim the protection of s. 11 if: 1. The proceedings are, by their nature, criminal proceedings; or, 2. The punishment involves the imposition of true penal consequences (Rodgers, at para 60).

[ 12 ] However, in keeping with the more expansive approach to be taken to Charter

interpretation, the court in Rodgers adopted a more liberal approach to this test. The court held that a consequence will form punishment when “it forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence and the sanction is imposed in furtherance of the purpose and principles of sentencing.” ( Rodgers , at para 63 ). [ 13 ] In Canada (Attorney General) v Whaling , 2014 SCC 20 , [2014] 1 SCR 392 [Whaling] , the Supreme Court considered whether the abolition of early parole violated s. 11(

h) of the Charter . The court was concerned with offenders who had been sentenced prior to the abolishment of early parole, but who were affected by the change because they were still serving their sentences at the time the legislation was enacted. [ 14 ] While the court iterated, “[t]hat incarceration constitutes “punishment” is a core underlying assumption of the Rodgers test” ( Whaling , at para 51 ), it went on to state that the Rodgers test was ill-suited for the issue at hand because of its formalistic approach ( Whaling , at para 52 ). The court in Whaling supported a functional approach.

Rather than looking at whether the penalty fit into a category of what would traditionally be considered criminal sanctions, the court looked at whether the harshness of the punishment had, in fact, been increased. [ 15 ] The court stated that the dominant consideration in determining whether a retroactive change to legislation constituted punishment was the extent to which an offender’s settled expectation of liberty had been thwarted by the change ( Whaling at para 60 ). [ 16 ] The decision in Liang v Canada (Attorney General) , 2014 BCCA 190 , 311 CCC (3d) 159 , leave to appeal to SCC refused, 35972 (29 January 2015) [ Liang ] , also considered the provisions abolishing early parole.

The court was dealing with offenders who had committed offences prior to the abolishment of the early parole provisions, but who were sentenced after the provisions came into force. [ 17 ] Liang addresses an issue which arises in the matter before me, that being whether an offender can have a “settled expectation of liberty” ( Whaling) , prior to being charged or sentenced. [ 18 ] The court in Liang addresses the issue as follows: [19] […] I do not see “settled expectation of liberty” to be a psychological standard directed at vindicating the subjective expectation of offenders, but instead, an objective standard to determine whether the punishments has in fact increased. […] In other words, I see the objectively ascertainable effect of “extended incarceration” as constituting the effective punishment (at para. 71) [referring to Whaling ].

On this analysis, where the effect of the changes to the parole system appreciably increases the amount of time an offender would be incarcerated, in comparison to what he or she would have been expected to serve under the prior regime, it will constitute punishment.

What matters is whether the changes “substantially increase the risk of additional incarceration,” thereby frustrating an objective expectation of liberty, not whether the offender’s subjective expectations have been dashed.” ( Liang , at paras 19, 23 ). [ 19 ] The objective standard and the reasoning in Liang were adopted by the Ontario Court of Appeal in Canada (Attorney General) v Lewis , 2015 ONCA 379 , 336 OAC 34 [Lewis] . [ 20 ] With respect to this case, at the time of the commission of these offences, trial judges were statutorily granted the discretion to consider time spent in pre-trial custody in determining the appropriate sentence.

While the amount of credit to be given for pre-trial custody was in the purview of the trial judge, the courts had developed practices and guidelines in order to provide some consistency in approach, particularly within each jurisdiction.

[21] The impact on the actual time potentially spent in custody because of the restriction of discretion now contained in the amendedlegislation is well illustrated in this case: • The offender has been in pre-trial custody for 954 days (31.8 months - almost 2 years and 8 months). • The maximum credit that could be granted under the new regime would be 1,431 days (47.7 months - almost 4 years). • Assuming he was granted credit at the rate of 2:1 (which was common in this jurisdiction at the time of the commission of theseoffences), he would receive credit for 1,908 days (63.6 months or 5.3 years). [22] The difference in the actual time that would be spent in jail between the new and old regimes is just short of 16 months.

This canhardly be described as incidental or of little consequence. [23] I agree with the reasoning in Liang, adopted by the court in Lewis, and find that the provisions of the Act constitute punishment tothe extent that they restrict credit for pre-trial custody in relation to offences predating the amendments. B. Did the Truth in Sentencing provisions vary the punishment between the time of the commission of the offence and the time ofsentencing? [24] It is accepted that, for s. 11(1) of the Charter to be engaged by a variation in punishment, the punishment must be one set out inlegislation.

It is not sufficient that the range of sentences actually given by the courts have varied during the relevant time period if therange permitted by statute has not changed (See R v RD, , 48 CR (4th) 90). [25] The question is not whether the court would, in fact, impose the lesser of the available punishments. The question is whether thesentencing court is permitted to consider the full range of sentencing options that were available at the relevant times? Any otherinterpretation would render the protection of s. 11(

i) of the Charter hollow, as it would require the statute to specify a penalty or at least amandatory minimum penalty and for that specific penalty to be varied for the Charter protection to be engaged. [26] The provisions of the Act preclude the sentencing judge from considering enhanced credit for remand at a rate greater than 1.5:1.

This limitation has the potential to significantly impact the amount of time an offender is actually incarcerated. [27] I conclude that the punishment has varied between the time of the commission of the offence and the time of sentencing by virtueof the effect of the provisions of the Act. VI. ANALYSIS A. Can the provisions be saved pursuant to s. 1 of the Charter? [28]

Section 1 of the Charter provides: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limitsprescribed by law as can be demonstrably justified in a free and democratic society. [29] The Oakes test, found in R v Oakes, (SCC), [1986] 1 SCR 103, 24 CCC (3d) 321, sets out the analyticalframework for determining whether the impugned legislation can be saved pursuant to s. 1 of the Charter. The legislation will be validwhere, on the balance of probabilities:

a) The purpose of the legislation is pressing and substantial; and

b) The means through which Parliament seeks to further its goals are proportionate, in that the means:

a) are rationally connected to Parliament’s purpose,

b) minimally impair the right in question, and

c) are proportionate in their effects. (i). Purpose of the legislation [ 30 ] The relevant provisions of the Act were intended to address the issue of overpopulation in remand units by providing a disincentive to accumulating remand time. The intention was to have matters move through to resolution more quickly, thereby allowing offenders to access programming, and for time actually spent in jail to more accurately reflect the length of the imposed sentence.

The overarching goal was to foster confidence in the administration of justice. [ 31 ] For the purposes of this case, however, it is not the broad objective of the overall regime in the Act that must be considered; it is the objective and purpose of only the impugned portion of the legislation ( See Liang , at para 48 ; R v RS , 2015 ONCA 291 at para 39 , 20 CR (7th) 336 [RS] ).

As was stated in RS: “[…] the question is not whether limiting credit for pre-sentence custody generally is justified; rather, the question is whether it is justified to limit credit for the group of offenders like the [accused], who are otherwise entitled under the Charter to lesser punishment.” (RS). [ 32 ] Accordingly, it is the part of the legislation dealing with retroactive application to offenders who committed offences prior to its coming into force which must be considered. This

section reads as follows: 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. (The Act) [ 33 ] The Crown submits that the purpose of s. 5 of the Act is to ensure uniformity, consistency, and certainty in the application of the legislation. These arguments were also made in RS . [ 34 ] In RS , the court also considered a further purpose of s. 5 of the Act : to expedite the transition from the old regime to the new regime and to promote the overall objectives of the legislation. [ 35 ] I agree with the court’s reasoning in RS that, in any case which engages s. 11(

i) of the Charter , an argument can be made for the necessity of retroactive application of the new regime in order to ensure both certainty and a rapid transition from one regime to another (See RS at para 43). This transitional period, however, is precisely what is contemplated by s. 11(

i) of the Charter . Certainty and ease of application, while desirable, cannot override constitutionally protected rights. [ 36 ] The test is whether the purpose of the impugned

section is pressing and substantial. In this instance, the impugned

section is only the implementation provision. This results in different considerations than those contemplated when determining whether the purpose of the legislation, in its entirety, is pressing and substantial.

[ 37 ] I do not find that clarity and ease of application during the transition period from one pre-trial credit regime to another is a pressing and substantial purpose. B. Proportionate means (i). Rational connection [ 38 ]

Section 5 of the Act provides a clear demarcation for determining if the legislation applies, thereby enhancing clarity and ease of application of the legislation. This is particularly so in those instances where the offence date covers a period of time which straddles the pre- and post-implementation dates of the legislation. I find that there is a rational connection between the purposes of s. 5 of the Act and the means set out to achieve the purposes. (ii).

Minimal infringement [ 39 ] The Crown submits that Parliament had three options in implementing the legislation: it could apply to only those who committed offences after the legislation was in force, to those charged after the legislation came into force (the option ultimately chosen by Parliament), or to all offenders in remand at the time it came into force.

The Crown submits that the chosen option is a compromise between effective implementation of the provision and the protection of Charter rights. [ 40 ] The option with the least infringement on constitutional rights would be that in which the legislation applies only to those who committed offences after its coming into effect. Failing to choose this option has resulted in a significant impact on the small group of offenders whose offences pre-date the legislation and whose charges post-date it.

It cannot be said that there is minimal infringement on the Charter rights of an individual such as the accused, who stands to lose significant credit for remand time. (iii). Proportionality [ 41 ] The deleterious effects of the legislation on the individuals affected by it can be significant, depending on the circumstances. As demonstrated by this case, the impact of the legislation can significantly increase the amount of time spent in custody. The benefits of the legislation are ease of administration. These effects cannot be said to be proportionate. VII. CONCLUSION [ 42 ]

Section 5 of the Truth in Sentencing Act violates s. 11(

i) of the Charter of Rights and Freedoms, and is therefore of no force or effect, to the extent that it applies to offenders convicted of offences which predate the coming into force of the Act . Dated at the City of Iqaluit this 23rd day of October, 2015

___________________ Justice S. Cooper Nunavut Court of Justice _______________________________________________________ Amendment of the Reasons for Judgment Reserved of The Honourable Madam Justice Cooper _______________________________________________________ In the frontispiece, the names of Crown counsel have been changed from “A. Porteous; S. Bailey (Student Counsel)” to “A. Porteous; S. Wheildon”. In the frontispiece, the matters have been changed from “ Criminal Code , s. 146(1); 151 x2; 243.4; 245; 246.1 x2; 271 x3; Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 11(i)” to “ Criminal Code , s. 146(1); 151 x2; 243.4; 245; 246.1 x2; 271 x3; Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 11(i); Truth in Sentencing Act , SC 2009, c 29” Please replace the amended pages in your hard copy of the judgment.