THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 88 Date: 2014-08-25 Between: Docket: CACR2407 Robert Kenneth Sawchuk Appellant - and - Her Majesty the Queen Respondent Publication Ban: An order has been made prohibiting publication of any information that could disclose the identity of the complainant pursuant to s. 486.4(1) of the Criminal Code . Coram: Jackson, Herauf and Whitmore JJ.A. Counsel: Todd Parlee for the appellant Andrew Davis for the respondent Appeal: From: 2014 SKPC 31 Heard: July 10, 2014 Disposition: Allowed in part Written Reasons: August 25, 2014

By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Whitmore Herauf J.A. I. Introduction [ 1 ] Mr. Sawchuk appeals his sentence of 30 months imposed after his guilty plea to a charge of sexual assault pursuant to s. 271 (

a) of the Criminal Code . The sentencing judge granted credit of seven months for time Mr. Sawchuk served on remand on a 1:1 ratio. [ 2 ] For the reasons that follow I would dismiss the appeal with respect to the 30 month period of incarceration. I would, however, increase the credit for remand time to 10.5 months on the basis of enhanced credit at the ratio of 1.5:1 for each day Mr. Sawchuk served on remand. This would mean that Mr. Sawchuk is given credit for 10.5 months already served requiring a further period of 19.5 months incarceration from February 4, 2014 which was the date of sentencing. II.

Background [ 3 ] The sentencing judge made detailed findings of fact relating to the circumstances of the offence which can be found at [2014 SKPC 31]. [ 4 ] A brief recitation of the relevant facts is as follows. The female victim knew Mr. Sawchuk. She had invited him to her residence, but later advised him not to attend. She was asleep on her couch when Mr. Sawchuk came into her home. He videotaped her and touched her body as she slept. The victim awoke and saw Mr. Sawchuk standing over her with his camera phone. She grabbed the phone and threw it. She then ran to her bathroom and locked herself inside. Mr.

Sawchuk left. The police discovered the video of the assault on the phone when they seized it in relation to a drug investigation. Until the video was uncovered, the victim did not know she had been sexually assaulted because she had been asleep. The video showed Mr. Sawchuk touch the victim’s breasts over top her clothing, after which he focused the camera on her crotch area. Her pants were fastened prior to the phone being set down by Mr. Sawchuk. Shortly thereafter, Mr. Sawchuk picked up the phone and returned the focus on the victim.

At this point the video revealed that the victim’s pants were undone, her shirt was pushed up and her stomach was exposed. Mr. Sawchuk’s hand was seen moving the victim’s pants and panties. Mr. Sawchuk moved the camera close to the open zipper to film inside the victim’s underwear, while he had one hand on her thigh outside her pants. [ 5 ] Mr. Sawchuk was a 55 year old with a lengthy record of 39 convictions, dating back to 1978, including one prior sexual assault for which he was sentenced to four years incarceration.

The victim was a 20 year old morphine user who was willing to testify out of concern for others who might come into contact with Mr. Sawchuk. III. Decision of the Sentencing Judge [ 6 ] The sentencing judge noted Mr. Sawchuk’s lengthy criminal record, including the prior sexual assault conviction. At the sentencing hearing the Crown requested a period of incarceration of four years plus the remand time of seven months for a total of 55 months. Mr. Sawchuk submitted a fit sentence would be six to 12 months incarceration, inclusive of any remand credit. (At the appeal hearing, counsel for Mr.

Sawchuk suggested that a fit sentence would be in the range of 18 months incarceration.) [ 7 ] The sentencing judge noted the mitigating and aggravating factors. She found that filming the incident was certainly an aggravating factor and that the video recording of the assault “is highly intrusive”. A further aggravating factor was the assault on the victim in her home while she was vulnerable.

The previous conviction for sexual assault was also considered a significant factor by the sentencing judge even though it occurred 30 years ago. [ 8 ] At para. 27 of the sentencing decision the sentencing judge stated: Sentences for these types of offences must stress general and specific deterrence as well as denunciation. Mr. Sawchuk's moral culpability is high. He and others must realize that sexual assault is a serious offence, even where there is no penetration and no outward injury to the victim.

Protection of the public, and public confidence in the administration of justice demand that our courts send a strong, consistent message that those who abuse others in a sexual manner will face significant consequences. [ 9 ] Based upon all these circumstances, the sentencing judge determined that a fit sentence of 30 months was appropriate. Credit was given on a 1:1 ratio for remand time. The sentencing judge determined that Mr.

Sawchuk was detained after a show cause hearing “primarily because of his previous criminal convictions.” She made this determination after listening to the recording of the court proceedings of the show cause hearing. As a result, the sentencing judge held that the combination of s. 719(3.1) and s. 515(9.1) of the Criminal Code precluded her from giving enhanced credit for remand time beyond the 1:1 ratio. It should be noted that her sentencing decision preceded the Supreme Court decisions in R. v. Summers , 2014 SCC 26 , 371 D.L.R. (4 th ) 581 and R. v. Carvery , 2014 SCC 27 , 371 D.L.R. (4 th ) 604. IV.

Analysis

[10] I will deal with the fitness of the sentence and the failure to give enhanced credit for remand time as two separate issues. (

i) Fitness of the Sentence [11] Mr. Sawchuk’s sole ground of appeal is that the sentence violates the principle of parity. In support of his position he relies on twolower court decisions. The first is R. v. L.(T.T.), 2012 SKPC 143, 407 Sask. R. 12. In this case the offender touched the 10 year oldvictim’s vagina over the bed covers. He received a six month jail sentence. As the Crown rightfully points out, this case is clearlydistinguishable on the basis that the accused had no prior criminal record. [12] The second case relied upon is R. v. Michelin, 2013 SKQB 390, 434 Sask. R. 17.

In this case the accused touched the victims’breasts and vaginal areas over their clothes. The offender had been convicted on two prior occasions of offending against children. Theaccused was sentenced to a period of incarceration of one year followed by two years probation. As noted by the Crown, the victims inMichelin were not asleep and the accused had a very minor criminal record. [13] There are a number of decisions from this Court where the circumstances are more in line with the case at bar. [14] In R. v. Cappo (1993), 116 Sask. R. 15, the victim had passed out in a bedroom after a party.

She awoke to find her pants andpanties removed and the offender on top of her attempting to penetrate her. She asked him to stop and he did so only after she vomited.There was no penetration. The offender was 22 years old at the time of trial, was in a stable common law relationship and employed as aband administrator. He did not have a criminal record and enjoyed strong family support. This Court increased the sentence from 22months to three years imprisonment. [15] In R. v. Roberts (1995), (SK CA), 128 Sask. R. 158, the offender entered the victim’s bed when she and herboyfriend were asleep.

The victim did not awaken due to her level of intoxication, but the boyfriend did, discovering the offender withhis front against the victim’s back and moving “his buttocks in a rubbing action against the victim”. Pushing the offender away theboyfriend observed that the offender had an erection. There was insufficient evidence to prove penetration of any kind. The offender was30 years old, married with four children, and was completing a business administration course. He had an alcohol abuse problem, andcould not recall what happened during his binges. He did not have a criminal record and pled guilty.

This Court allowed the Crown’sappeal and increased the sentence from six months to two and one-half years. [16] In R. v. Custer, 1998 SKCA (SentDig) 14, the victim awoke after a party to find the offender fondling her vagina under her panties.She pulled his hand away, got up, kicked him and left the room. He later approached her with a knife and also said he would kill herboyfriend. He was 33, had a child living in Calgary, supported the child when he was working, and was an admitted alcoholic. Hereceived two years eight months for the sexual assault.

While he had a significant record, the penitentiary term was upheld by this Courtbecause the matter was serious and the sentence not unfit. [17] In R. v. Frank 1998 SKCA (SentDig) 90, the victim had fallen asleep at a party. She awoke to find the offender lying behind herwith his erect penis against her back. He had his finger up her vagina. The victim told him to stop and he did. The offender had a priorrecord of only nine convictions and had a solid employment record. This Court upheld the sentence imposed of two and one-half yearsincarceration. [18] In R. v.

Picton, 2002 SKCA (SentDig) 9, the 56 year old offender rubbed the vagina of the 17 year old victim who had fallenasleep after partying. He also held her hand to his penis. When she awoke he threatened her if she told. The offender had a verysignificant record including a conviction for sexual assault. This Court dismissed the offender’s appeal from a four year sentence. [19] In R. v. H.(M.J.) (2004), 2004 SKCA 171 , 257 Sask. R. 1, the intoxicated victim went to bed fully clothed. Sometimelater, a witness saw the offender on top of the victim’s naked body “humping” her.

His pants were down and his bare buttocks wereexposed. The victim was unconscious and, in the morning, did not remember being assaulted. The trial judge found as a fact that theoffender did not attempt to have intercourse with the victim. The offender had two prior convictions for failing to comply and possessionof a weapon. The trial judge imposed a conditional sentence of imprisonment. This Court allowed the Crown appeal from sentence andimposed a sentence of two and a half years imprisonment.

The comments of the court regarding the consequent seriousness of the matterare instructive: 16 The reasons given by the trial judge for discounting the gravity of the offence below the level of what might attract a penitentiaryterm are not particularly compelling. First, the fact that the respondent did not enter the house for the purpose of assaulting the victimdoes nothing to undercut the central reality that, once in the house, he did intend to get into her bed and did intend to assault her for hissexual gratification.

Second, even accepting the trial judge's view that there was no attempted intercourse, the respondent's actions were asubstantial and gross violation of the victim's sexual and personal integrity. Third, the fact that there was no violence beyond the assaultitself, seen from the perspective of the victim, is of little comfort. Care must be taken to avoid seeing these sorts of assaults in a waywhich would effectively reward an accused for taking advantage of an unconscious and helpless victim rather than one who is in aposition to resist the assault. See: R. v. Cappo (1993), 116 Sask. R. 15 (Sask.

C.A.) at para. 13. [Emphasis added] [20] In R. v. Iron (2005), 2005 SKCA 84 , 269 Sask. R. 51, the victim awoke to find the offender on top of her, kissing her andpressing his body against her. She told him to stop but he would not. He held her hands above her head, fondled her breasts and genitalsand digitally penetrated her vagina. Mr. Iron was a father to five children. He had a positive upbringing and completed substance abusetreatment before he was sentenced. He had a criminal record that was, relatively speaking, minor and unrelated.

This Court overturnedthe two years less one day conditional sentence and imposed 20 months incarceration after giving the offender credit for serving part ofthe conditional sentence. [21] In R. v. Charles (2008), 2008 SKCA 108 , 236 C.C.C. (3d) 92, the offender and the victim had been picked up by thepolice and placed in the drunk tank. The victim had fallen asleep and the offender began cuddling him. He then removed the victim’spants and rubbed his buttocks. The offender them removed his pants and engaged in what appeared to be simulated anal intercourse.Actual penetration was not established.

The victim never awoke. The offender had six prior convictions on his record including one forsexual assault. This Court overturned the conditional sentence and imposed a sentence of 30 months incarceration.

[ 22 ] In R. Kasokeo , 2009 SKCA 48 , 324 Sask. R. 156, the victim had fallen asleep after drinking. She awoke to find her pants and underwear at her ankles and the offender was behind her engaging in a sexual act. The offender was thrusting behind her but it was not entirely clear whether penile penetration occurred. This Court overturned the 15 month sentence and imposed one of 30 months.

Unlike the appellant, the offender had a very minor record consisting of convictions for two break and enters, uttering a forged document and two for failing to attend court. [ 23 ] While I appreciate that this case arguably involves a less intrusive sexual act, the surrounding circumstances elevate the gravity of the offence and Mr. Sawchuk’s degree of culpability in committing it. As noted above, none of the offenders had criminal records consisting of 39 prior convictions.

More importantly, none of the offenders listed above had videotaped their crime. [ 24 ] In the result, a sentence of 30 months incarceration does not violate the principle of parity and is certainly not demonstrably unfit. I would dismiss the appeal from the 30 month period of incarceration imposed by the sentencing judge for this offence. (

b) Failure to Give Enhanced Credit for Remand Time [ 25 ] As previously noted, the sentencing decision in this case preceded the Supreme Court decisions relating to the Truth in Sentencing Act , S.C. 2009, c. 29. As a result, this Court requested that counsel file supplementary facta relating to the applicability of Summers and Carvery to this case. [ 26 ] Further brief facts are required to put this issue in context. Mr. Sawchuk was denied bail on July 13, 2013. He applied for a bail review and his application was dismissed. As a result of the bail review a transcript of the show cause hearing was prepared.

A copy of the transcript was placed on the Provincial Court file. [ 27 ] The relevant statutory provisions at play are s. 719(3.1): 719.

(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). Section 515(9) and (9.1): 515.

(9) For the purposes of subsections (5) and (6), it is sufficient if a record is made of the reasons in accordance with the provisions of

Part XVIII relating to the taking of evidence at preliminary inquiries. (91.) Despite subsection (9), if the justice orders that the accused be detained in custody primarily because of a previous conviction of the accused, the justice shall state that reason, in writing, in the record. [ 28 ] The Crown concedes in its supplementary factum that the transcript of the show cause hearing does not comply with the “in writing” requirement of s. 515(9.1) . The Crown came to this conclusion based, in part, upon the French version of s. 515(9.1) which reads as follows:

(9.1) Malgré le paragraphe (2), si le juge de paix ordonne la detention sous garde du prévenu en se fondant principalement sur toute condemnation antérieure, il est tenu d’inscrire ce motif au dossier de l’instance. [ 29 ] At this point, it is worthwhile to quote from the Crown’s submission in its supplementary factum in order to get the full flavour of its rationale for the concession on this point. The relevant portions are as follows: Bail hearings must be recorded by either a stenographer or a recording device.

Subsection (9.1) further requires the judge to note the reason down in writing on the file in those situations where bail is denied because of the person’s criminal record. While the

section requires something more tangible than what is generally produced at a preliminary hearing, the use of the French “inscrire” suggests that a relatively informal written record would suffice. This could likely be a hand-written notation on the file jacket cover, or a check box on the endorsement sheet. The Quebec Court of Appeal in R. c. Lebrasseur , 2013 QCCA 1432 , 307 C.C.C. (3d) 312, interpreted these sections strictly and held that a record made in accordance with

Part XVIII did not comply with the exigencies of subsection 519(9.1). Where the record was not strictly compliant with the section, the sentencing judge retained his or her discretion to grant enhanced remand credit. In R. v. Tully , 2014 ONSC 382 , the justice of the peace said that the accused was being detained primarily because of his record. He neglected however to mark the appropriate check box on the endorsement sheet, although a transcript of the bail hearing was eventually ordered.

The sentencing judge found that he had discretion to grant enhanced remand credit given that the record did not comply with subsection 515(9.1) . Mr. Sawchuk’s bail was denied because of his prior record. This was not stated on the endorsement sheet or in written reasons, although a transcript of the oral decision was ordered and placed on the file. While the definition of writing in

section 2 of the Criminal Code appears broad enough to encompass transcripts, the transcript in the case at bar is not compliant with subsection 515(9.1) since it is no more than would be produced under

Part XVIII of the Code . [ 30 ] Notwithstanding its concession, the Crown argues that enhanced credit should not be given having regard to Parliament’s intention in enacting these provisions. Since the transcript proves that Mr. Sawchuk is singled out by Parliament as one of those who would not be entitled to enhanced credit but for the failure to make the proper endorsement in writing in the record, it would be inappropriate to permit form to triumph over substance and provide otherwise. [ 31 ] I respectfully disagree with the Crown’s submission that Parliament’s intention should overcome non-compliance with s. 515(9.1) .

[ 32 ] While acknowledging non-compliance with s. 515(9.1) on one hand, the Crown then urged this Court to ignore the non-compliance and look at the intent of Parliament in enacting the provision. In my view, that cuts both ways. I say this because I note that s. 515(9.1) was enacted as part of the Truth in Sentencing Act and it adds the words “in writing” where they have not otherwise appeared. Therefore, Parliament must have intended the requirement for the “in writing” portion to mean something. To adopt the Crown’s position would make s. 515(9.1) meaningless.

That certainly could not have been the intention of Parliament. This is not to say that there is no judicial traction for the position advocated by the Crown. [ 33 ] In R. v. Nevills , 2014 ONCA 340 , the Ontario Court of Appeal dismissed the appeal against sentence. Mr. Nevills was given credit for pre-sentence custody at a rate of 1:1. The Court of Appeal explained the applicable legislative provisions as follows: 4 … [Section] 719(3.1) requires a consideration of all of the circumstances.

Certain circumstances specifically exclude the operation of s. 719(3.1) and, therefore, the availability of enhanced credit up to 1.5:1. For example, where a person was detained on a bail hearing for the reason identified in s. 515(9.1) , he cannot obtain 1.5:1 credit for pretrial custody. Section 515(9.1) refers to cases where bail is refused “primarily because of a previous conviction”. [ 34 ] In Nevills , there was no evidence as to whether the accused applied for bail. The Court found, however, “that [Mr. Nevill’s] previous convictions would inevitably have played a dominant role had he applied for bail.

He has over 70 prior convictions and was released from jail only three days before committing these offences”. The Court relied on its previous decision in R. v. Morris , 2013 ONCA 223 , 282 C.R.R. (2d) 1 at paras. 17-19 , for the proposition that “a trial court can consider the entirety of the circumstances”.

In Nevills , the Court of Appeal specifically held that where the entirety of the circumstances “clearly place the offender within the provisions that exclude the potential giving of 1.5:1 credit, the trial judge is entitled to take that into account even though the formal order required by these provisions was not made”. In this case, “[t]his offender’s previous convictions more than justified his detention. He is caught by the spirit, if not the letter, of s. 719(3.1) .

The trial judge did not err in giving 1:1 credit”. [ 35 ] I note that in Nevills , a strict approach to the requirements under subsection 515(9.1) was not followed. Furthermore, although the case was decided after the Supreme Court’s decision in Summers , it is my respectful view that Nevills is not consistent with Summers .

The Court’s statement that where all of the circumstances “clearly place the offender within the provisions that exclude the potential giving of 1.5:1 credit, the trial judge is entitled to take that into account even though the formal order required by these provisions was not made”, does not seem to account for the proposition in Summers that credit is capped at a rate of 1:1 where “the statutory exceptions within s. 719(3.1) are engaged”. These “statutory exceptions” do not call for a consideration of all of the circumstances.

Rather, they call for a determination of whether “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)”. The focus is on the decision that was made by the justice presiding at the bail hearing, particularly on the reasons that were provided in the record (and, more particularly, for subsection 515(9.1) , the written reasons in the record). [ 36 ] As already noted, I come to a different conclusion.

Let me explain why. [ 37 ] On the basis of a review of Summers , it appears that the exception of granting enhanced credit under subsection 719(3.1) will generally be the “rule”, in the sense that credit at a rate of 1.5:1 will more often than not be granted. Nonetheless, where “the statutory exceptions within s. 719(3.1) are engaged”, an offender may only be given credit at a rate of 1:1.

The Supreme Court’s reference to “the statutory exceptions within s. 719(3.1)” seems to suggest that in order for the rate of credit to be capped at 1:1 on the basis that the primary reason for detention was a previous conviction, the statutory requirements under subsection 515(9.1) must be met. This is because “the statutory exceptions within s. 719(3.1)” specifically refer to subsection 515(9.1). [ 38 ] There are two statutory requirements under subsection 515(9.1) . First, the justice must detain the accused in custody “primarily because of a previous conviction of the accused”.

Second, where this is the basis for detention, the justice “shall state that reason, in writing, in the record”. It appears to be insufficient for the justice to simply conclude that he or she is detaining the accused primarily because of a previous conviction. The justice must state in writing that this is the reason for detaining the accused. [ 39 ] The legislative intent behind the Truth in Sentencing Act that relates to transparency regarding the fitness of sentence, the amount of credit, and the reasons for the amount of credit, support an

interpretation of subsections 719(3.1) and 515(9.1) that mandates the fulfillment of both requirements under subsection 515(9.1) in order for credit to be capped at a rate of 1:1. [ 40 ] Subsections 515(9.1) and 719(3.1) were both enacted through the Truth in Sentencing Act . These two provisions work in tandem, as subsection 719(3.1) specifically refers to subsection 515(9.1) .

Through the joint operation of these provisions, the justice who presides at the bail hearing has the authority to make a decision that will affect the amount of credit that is granted to the accused for time spent in pre-sentence custody, in the event that the accused pleads guilty or is found guilty and convicted. This point is captured by St-Pierre J.A., writing for the Quebec Court of Appeal, in R. c.

Lebrasseur , 2013 QCCA 1432 , 307 C.C.C. (3d) 312 at para. 31 : … [T]he involvement of a first judge, who in some cases is called upon to intervene quite early in the process without knowing all the ins and outs, could ultimately deprive the sentencing judge in the event of a guilty plea or a conviction from the judicial discretion he or she would otherwise have to calculate enhanced pre-sentencing custody credit if the circumstances justify it. [ 41 ] Therefore, “[t]aking this into account, and even though the judge’s approach whereby a clear statement must be entered into the record may appear too strict or too formal, I find that this is the right one”. [ 42 ] On this basis, the reason for detaining the accused (where the reason may affect the amount of credit that may be given to the accused) should also be transparent and understandable.

The wording of subsection 515(9.1) indicates that Parliament contemplated that the method in which this transparency should be achieved is through a written statement that specifies that the primary reason for detention is a prior conviction of the accused.

Based on the connection between subsections 515(9.1) and 719(3.1) , this written statement will demonstrate that the justice has turned his or her mind not only to the statutory requirements under subsection 515(9.1) , but also to the impact that the decision under this provision may potentially have on a sentencing judge’s discretion to calculate credit for pre- sentence custody. Where the statutory requirements under subsection 515(9.1) are fulfilled, subsection 719(3.1) operates to limit the sentencing judge’s discretion in granting credit for pre-sentence custody.

It is therefore important that the justice complies with both of

the specified requirements. [ 43 ] In Lebrasseur , St-Pierre J.A. elaborated upon the requirement that the reason must be stated “in writing, in the record”, and upon the basis for strict adherence to this requirement, as follows: 34 In my opinion, the opening words of subsection 15(9.1) [sic] Cr. C. “[d]espite subsection (9)”, and the rest of this subsection, force us to find that even “if a record is made of the reasons in accordance with the provisions of

Part XVIII relating to the taking of evidence at preliminary inquiries” it is not enough to set aside the discretion that otherwise belongs to the sentencing judge to grant enhanced credit “if the circumstances justify it”. 35 Subsection 515(9.1) Cr. C. imposes the obligation to state in the record of proceedings that the reason for the accused’s custody is based primarily on previous convictions; because of the consequences of this statement in the record, it is easy to understand why it would be appropriate to take a strict approach.

The obligation on justices of the peace presiding a release hearing to state the reason for detention in the record (based primarily on any previous conviction) requires that they weigh its appropriateness. [Emphasis added.] [ 44 ] St-Pierre J.A. also elaborated upon the requirement that the written statement must refer not simply to a previous conviction as being the reason for detention, but to a previous conviction as being the primary reason for ordering detention. See Lebrasseur at para. 36 : 36 I find that the wording of subsection 515(9.1) Cr. C. is clear.

Before concluding that a first judge has limited the judicial discretion of the sentencing judge by rendering his or her decision on release, it is necessary to find an explicit statement in the record that custody was ordered primarily – not incidentally or among other things – because of a previous conviction. In this respect, any doubt or ambiguity must be interpreted in favour of maintaining judicial discretion. [ 45 ] In Lebrasseur , the written reasons of the justice of the peace did not include an explicit statement that custody was ordered primarily because of a previous conviction.

Furthermore, St-Pierre J.A. did “not accept the argument that it was implied by [the justice of the peace’s] remarks, without any doubt or ambiguity”. St-Pierre J.A. concluded that the sentencing judge had full discretion to grant credit at a rate of 1.5:1. [ 46 ] In R. v. Tully , 2014 ONSC 382 , Corrick J. followed the approach of St-Pierre J.A. in Lebrasseur by mandating strict compliance with the “in writing” requirement. [ 47 ] The relevant facts of the case are as follows: 49 At the conclusion of a lengthy bail hearing held on May 27, 2011, Justice of the Peace N.

Burgess gave lengthy reasons for detaining Mr. Tully on the secondary and tertiary grounds. He referred to Mr. Tully’s criminal record, the strength of the Crown’s case, and the unsuitability of Mr. Tully’s proposed sureties. After the justice had concluded his reasons, Crown counsel sought a notation that Mr. Tully was being detained primarily due to his criminal record. The justice of peace responded, “All right. I can say primarily because of the criminal record. Certainly, taking a look at all those circumstances, yes.” 50 There were two informations related to Mr. Tully before the justice on May 27, 2011.

Copies of them have been marked as Exhibit #5 on the sentencing hearing. Both informations were pre-printed with a

section for the justice to confirm that an accused person had been detained in custody primarily because of a previous conviction. The pre-printed form had a check box for “yes” and a check box for “no” followed by a line to insert the date. The form also indicated that the justice was to initial the appropriate check box. The justice did not make a notation on either information related to Mr. Tully. [Emphasis added] [ 48 ] Corrick J. determined that she retained the discretion to grant the accused enhanced credit.

She interpreted subsection 515(9.1) as requiring “the justice to note, in writing, in the record, that the accused is being detained primarily because of a previous conviction. An oral statement by the justice to the same effect is not sufficient to comply with the requirement of s. 515(9.1) . The pre-printed

section of the information I earlier referred to was included to facilitate compliance with s. 515(9.1)”. Corrick J. also compared the wording in subsections 515(9) and 515(9.1) . With respect to subsection 515(9.1), Corrick J. concluded: “This

section specifically imposes an obligation on the justice to note something in the written record. In the absence of such a notation, this court retains the discretion to credit Mr. Tully 1.5 days for each day spent in pre-sentence custody, if the circumstances justify it. The Quebec Court of Appeal reached the same result in the case of R. c. Lebrasseur ” ( Tully at para. 58 ). [ 49 ] In the result, Corrick J. gave Mr.

Tully credit for pre-sentence custody at a rate that was slightly less than 1.5:1. [ 50 ] In this case, the Crown has conceded that the transcript of the bail hearing did not fall within the meaning of “in writing” under subsection 515(9.1) of the Criminal Code . [ 51 ] Because the Crown has conceded that the transcript did not come within the meaning of “in writing”, there is no issue as to whether or not the statutory requirements were met. Although the requirement that Mr.

Sawchuk was detained primarily because of a previous conviction appears to have been met, the requirement that this reason for detaining Mr. Sawchuk be stated in writing, in the record, was not met. Therefore, Mr. Sawchuk was not precluded from being granted enhanced credit under subsection 719(3.1) . On the basis of Summers , extensive evidence is generally not required in order to justify the application of enhanced credit.

In this case, defence counsel asked that the accused be given credit at a rate of 1.5:1 for part of his time on remand, because during this time, “he was housed in the Chapel, which was an overflow unit which had no running water or baths”. As well, the Crown has not challenged the inference that Mr. Sawchuk “has lost eligibility for parole or early release” because of his pre-sentence detention. Both of these factors justify enhanced credit for remand time. V. Conclusion

[ 52 ] The appeal is allowed to the extent that credit for remand time of seven months is granted at the rate of 1.5:1. Therefore, Mr. Sawchuk is granted credit of 10.5 months for remand credit. This leaves 19.5 months left to be served from the date of sentencing which was February 4, 2013. Other than this adjustment, the sentence appeal is dismissed. DATED at the City of Regina, in the Province of Saskatchewan, this 25 th day of August, A.D. 2014. “Herauf J.A.” __________________________ Herauf J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Herauf J.A.” for Whitmore J.A.