Case Name:
R. v. [REDACTED]
Between
Her Majesty the Queen, and
[REDACTED]
[2014] O.J. No. [REDACTED]
H
Ontario Court of Justice
Toronto, Ontario
[REDACTED]
Oral judgment: April 15, 2014.
(85 paras.)
Counsel:
Counsel for the Crown, [REDACTED].
Counsel for the accused, [REDACTED].
REASONS FOR SENTENCE
1 [REDACTED] (orally):-- [REDACTED], I am going to have to -- because of the discussion over how to calculate your time served, I am going to go through some reasons for that. But just so you know off the top, I'm going to give you the 1.5 credit for each of the days you've served. So, you've served 165 days and I'm going to give you 1.5 days on that, right, just so you understand at the end of the day and you'll hear my calculations degrees I'm sure the lawyers will correct me if I do the math wrong, as to how I figure this out.
2 So, in terms of my reasons, first of all, I agree with the effective overall position of 10 months, which is nine months on the drug charge and one month on the fail to appear charge. I find that that's a significant length of time on each of the respective charges and I am satisfied that it meets the principle of general deterrence and also, I'm satisfied that the principle of specific deterrence is appropriately considered with that sentence, given consideration of [REDACTED]'s lengthy record.
3 The overall sentence also, however, takes into consideration the mitigating factor of the plea, which is a show of remorse and I also put great stock in the fact that this was a joint submission. The main issue is the credit, or lack thereof, to be granted for time served.
4 [REDACTED] has served 165 days as of today's date, having been arrested in early November 2013, on a fail to appear charge in relation to the drug charge. If credit is granted at a rate of 1.5 days for every day served, then the amount that should be credited to [REDACTED] is 245 days or 8 months and 8 days.
5 On the day that this matter was before me, The Supreme Court of Canada handed down its decision in R. v. Summers, 2014 SCC 26. This matter was then adjourned briefly so that I could review The Supreme Court of Canada decision. As a result of that decision, my reasons will be brief.
6 The Supreme Court of Canada was straight forward and very clear in its decision. It upheld the Ontario Court of Appeal decision in Summers, [2013] O.J. No. 1068, but I also find that the very strong wording in the Supreme Court of Canada decision puts to rest any lingering issues regarding the interpretation and application of s. 719.3 and ss.3.1.
7 The inference that should be readily drawn in virtually all instances is, is the offender justified in receiving enhanced credit given the lost eligibility for parole or early release which flows from the time spent in pretrial detention. If the Crown wishes to challenge that inference in a given case, then it is open to the Crown to do so but, presumably that challenge will not be forthcoming in the vast majority of cases. See paragraph 79 of the Summers decision.
8 Essentially, then, matters stand as they did prior to the pretrial custody amendments, except that Parliament has clearly capped the credit that can be received at a rate of 1.5 days for each day spent in pretrial detention.
9 I turn then, to the impact of the s.524 Application, or lack thereof. Parliament has clearly prohibited the granting of enhanced credit to offenders who are detained in custody under s.524.4 or ss.8. In this case, and many other cases, the Court is faced with a situation in which the offender was a candidate for a s.524 Application but did not have his bail revoked because the Crown chose not to bring the Application. In such instances, the blanket prohibition that would flow from the granting of such an Application does not apply.
10 The question then, is whether the Court should consider the fact that an offender was a candidate for such an Application, even if the Application was never brought in determining if enhanced credit should be awarded.
11 In a similar situation to the one before me, R. v. Asante, [2014] O.J. No. 594, I found that Mr. Asante's candidacy for such an Application did not preclude me from granting enhanced credit, but it did leave me to reduce the amount of credit awarded to an amount below the maximum allowable. I find that The Supreme Court of Canada decision in Summers has altered my views on this issue.
12 In my view, The Supreme Court of Canada was extremely clear that as a general rule, enhanced credit was to be awarded on the same basis that existed prior to the amendments. The only real substantive change is that there is now a cap on the allowable amount.
13 Given that fact, I find that the Crown's failure to bring the s.524 Application takes on a much greater significance. Obviously, if the court is barred from granting such enhanced credit because such an Application has been successfully brought, then no enhanced credit will be given. If the Crown fails to bring such an Application however, then I find that the primary factors to be considered in deciding if circumstances warrant the enhancement are the lack of availability of early release or parole and the generally accepted onerousness of conditions in remand facilities.
14 I find that the fact that the circumstances for a s.524 existed have a limited to negligible impact. Given the tenor of The Supreme Court of Canada decision, in my view, the Crown should bring the s.524 if it wishes the court to deny enhanced credit on that basis.
15 Having made these comments, I realize that the decision is four days old and I'm certainly open to reaching an alternative view in a subsequent case depending upon the arguments presented at that time. But given my views at this point, I therefore grant [REDACTED] credit at a rate of 1.5 days for every day served in pretrial custody.
16 This deduction will apply to the nine month sentence that would have been imposed for the possession for the purpose charge. So, the amount of pretrial custody is to be noted as 248 days. So, by my calculations this leaves [REDACTED] with a 22 day sentence on the possession for the purpose charge, with the credit of 248 days to be noted as pretrial custody, followed by 30 days consecutive on the fail to appear charge, for a total remaining sentence of 52 days.
17 [REDACTED]: Fifty-two days, okay.
18 THE COURT: Right. So, unless I have miscalculated and that would be my ....
19 [REDACTED]: I don't believe you've miscalculated if you're going with the 165 days, but at one point you said credit for 245 days and for 248.
20 THE COURT: Oh.
21 [REDACTED]: I believe it should be 248.
22 THE COURT: Two forty-eight. If I said 245 at some point, I was trying to review my notes and change things to add in how that extra couple of days changed the calculations. Let me see. You're right, I did say -- in one point of the decision, I indicated that he should be credited a rate of 245 days. Wherever I have said that, I meant 248.
23 Okay, thank you for picking that up.
24 So, in terms of the secondary orders, does this make sense? So it's 55 days effectively. Okay.
25 In terms of the secondary orders, ....
26 [REDACTED]: It should be 52 days. Fifty-five days took into account ....
27 THE COURT: Fifty-two days, I'm sorry. Thank you.
28 [REDACTED]: I just want to make sure.
29 THE COURT: You're right. I also left that calculation in at one point. So 52 days left, all right, [REDACTED]. All right.
30 So, in terms of the secondary orders, s.109 is essentially mandatory and I just need to take a look at your record. I don't think you've ever -- I can't recall if you've ever had one before.
31 [REDACTED]: He hasn't.
32 THE COURT: He hasn't, thank you for checking. All right. Oh, there was a s.110 for 10 years, I do have that.
33 [REDACTED]: I didn't look at the s. 110s, I was looking at the s.109.
34 THE COURT: Right. So I think at this point, it's for life. That would be my interpretation, because it's essentially a second order. So, can I, may I just see a blank s.109 order. All right, thank you.
35 So, you are prohibited, [REDACTED], from possessing any firearm, crossbow, restricted weapon, ammunition or explosive substance for life. All right. Any issues with respect to that? You understand? All right. Okay, it's fairly straight forward.
36 In terms of the DNA, I am going to grant the DNA order. I appreciate it's a secondary designated offence, but the Appellate Courts have put forth a fair bit of strong language in terms of the fact that the impact on his own privacy of security is quite low as a result of this order, and that it does extend to offences and is of use with respect to the investigation of offences extending far beyond those, for example of violence. So, just given the record, I'm going to impose the DNA order.
37 And the forfeiture order, I do have copies. You have reviewed that? You are content with the forfeiture order?
38 [REDACTED]: Yes.
39 THE COURT: Okay, I will sign that as well. All right, I think that completes it. I think you withdrew the charges on the last date.
40 [REDACTED]: Yes, I think so.
41 [REDACTED]: The only issue is the victim fine surcharge ....
42 [REDACTED]: Right
43 THE COURT: Oh, sorry. Yes. So, what I will do, sorry, to add to the sentence, Mr. Clerk, is I'm going to impose, it was on the fail to appear charge, you said?
44 [REDACTED]: That's right.
45 THE COURT: I am going to impose a $10. fine on the fail to appear charge.
46 THE WITNESS: Sorry.
47 THE COURT: Just so you know, a $10. fine on the fail to appear charge. That will impact your victim fine surcharge and effectively make it lower that it would have been if I didn't impose a fine. So, you're going to end up having to pay around $13 loosely, I think it is.
48 And in terms of why I would impose a fine of that amount given it's clearly, obviously influencing the amount the victim fine surcharge is, given the length of time that effectively he's been in custody and he'll still continue in custody for a little of time, I just find it's too onerous to expect him to pay the amount that would otherwise be ordered. And I'll waive the victim fine surcharge with respect to the drug charge.
49 [REDACTED]: Your Honour, in terms of time to pay, I believe there's an Order in Council from the Ontario government specifying it's 60 days. I don't know ....
50 THE COURT: Oh, and that you can't go beyond that?
51 [REDACTED]: My understanding is based on the Order in Council, which was released in 1999, it depends on the summary offences or indictable offences. I believe for the indictable offence it is 60 days. I can get a copy of the Order in Council.
52 THE COURT: Yes, actually at some point, if you're able to do that, that would be great. I've certainly imposed longer.
53 [REDACTED]: I believe, so did I. If that is the case, and he's ....
54 [REDACTED]: Sorry, I do apologize here. I've just reread the section and I've misspoke. It says when there's no fine imposed it's 60 days. I can pass forward a copy of it.
55 THE COURT: Okay, sure, that would be great. So, your feeling of it is that I: can impose a longer period in time.
56 [REDACTED]: Given the circumstances of him being in custody, he will need some time, I'm sure, to pay the fine.
57 THE COURT: Right.
58 [REDACTED]: I'm certainly content with Your Honour imposing a lengthier period ...
59 THE COURT: Okay.
60 [REDACTED]: ... given my reading of that.
61 THE COURT: What if I make it two years to pay? Does that ....
62 [REDACTED]: I think that will do the trick.
63 THE COURT: Two years to pay the $13?
64 [REDACTED]: Yeah.
65 THE COURT: All right, okay. I will make it two years to pay. All right, thank you. I think that completes it.
66 [REDACTED]: Thank you very much, Your Honour.
67 THE COURT: Thank you very much, both of you.
68 [REDACTED]: Thank you very much.
69 THE COURT: Thank you.
70 Reporter's Note: At this time, other matters are addressed, before this matter is spoken to again.
71 THE COURT: So, just before we swear the officer in, as it turns out, I mean I think we can still begin, but the other gentleman I was dealing with this morning, [REDACTED], you know, [REDACTED] that there was an aspect of that sentence that needed to be addressed.
72 [REDACTED]: Yes.
73 THE COURT: And apparently they won't bring him up until Mr. Ward-Jackson's down ...
74 [REDACTED]: Okay.
75 THE COURT: ... because of staffing issues. So, I suppose what we might do is go until about.....
Reorter's Note: At this time, other matters are addressed, before this matter is spoken to again.
76 THE COURT: Very brief, [REDACTED].
77 [REDACTED]: Yes.
78 THE COURT: I just had to have you come up because that $13 charge has now gone away. It turns out that the - - I have to by law put an extra sum on this victim fine surcharge that we were talking about and we didn't realize that your fail to appear charge actually predated the date when that became mandatory for me to do.
79 So, I'm going to waive the victim fine surcharge, so you don't have to worry about the $13. We just had to let you know. Okay.
80 THE WITNESS: All right.
81 THE COURT: All right, you can go back down now. That's it. Thank you.
82 THE WITNESS: Thank you.
83 [REDACTED]: Hardly worth the walk up.
84 THE COURT: Well, it's more of a hassle probably in some ways.
85 THE WITNESS: (inaudible) ... paperwork
