October 15th, 2012
In R v Carvery, 2012 NSCA 107 [Carvery], the Nova Scotia Court of Appeal (“NSCA”) considered s. 719 of the Criminal Code, RSC, 1985, c C-46 [Criminal Code], a provision which establishes credit given for time served pre-sentencing. Section 719 was amended in 2009 to limit the amount of credit judges could award offenders for time spent in custody prior to sentencing.
The NSCA affirmed the lower court decision to award pre-sentencing credit at a ratio of 1.5 days credit for each 1 day spent in custody prior to sentencing under s. 719(3.1), despite the lack of exceptional circumstances. The 1.5:1 ratio set out in s. 719(3.1) is an exception to the “maximum” ratio of 1:1 set by s. 719(3). In the case at issue, the trial judge had awarded the enhanced credit based on loss of remission and parole. Despite being important considerations directly related to the rationale for an enhanced credit ration, these are non-exceptional considerations which are present in every pre-sentencing incarceration. If they are sufficient to trigger the enhanced ratio of s. 719(3.1), it is difficult to make sense of the “maximum” ratio of s. 719(3).
The decision to award enhanced credit in the absence of exceptional circumstances undermines the general rule of credit on a 1:1 ratio set by section 719(3). Although the court discusses principles of statutory interpretation, the decision may be best explained by the court’s dislike for decreasing the pre-sentencing credits. On a plain reading of section 719, the court’s interpretation is a stretch.
There may be good reason to dislike the amendment and the restrictions it places on pre-sentence credits. Unquestionably they, like many of the government’s recent criminal law initiatives, have resulted in stricter – but not necessarily more effective – punishments. While the wisdom of this policy may be debated, the court is bound to apply laws passed by Parliament subject to a successful constitutional challenge.
In the absence of a constitutional challenge to the provision, the NSCA could not consider whether the new pre sentence credit scheme accords with the Charter. Instead, the NSCA focused its efforts on the interpretation of s. 719. In order to avoid the perceived unfairness which would result from applying the law in the way required by a plain reading of the section, the court contorted itself to arrive at a questionable interpretation of the amendment.
The appellant was arrested for breach of recognizance. A search incident to arrest revealed crack cocaine in his pocket. The appellant was charged with possession for the purpose of trafficking and breaching his recognizance.
The Crown opposed his release on bail. A trial date was set and the accused plead guilty. Due to a series of delays and change of defence counsel, the sentencing hearing was not held until seven months after the conviction.
The Crown sought credit for the nine and a half months spent in pre-sentencing custody at a ratio of 1:1. The trial judge invited submissions on whether a proper interpretation of s. 719 of the Criminal Code supported the application of the higher credit ratio of 1.5:1. The Crown argued that the recent amendments precluded any credit beyond the simple ratio of 1:1 in the absence of exceptional circumstances. The trial judge disagreed and, without finding exceptional circumstances, credited the appellant with 1.5 days for every day in pre-sentence custody.
The Crown appealed on the basis that the trial judge had erred in her interpretation of s. 719.
The Common Law of Pre-Sentence Custody
At common law and under s. 719(1) of the Criminal Code, a sentence does not start until the day it is pronounced. A court cannot “backdate” a sentence. Despite this, basic fairness requires pre-sentence custody to be taken into account. Courts have done so by reducing the sentence to a shorter period of incarceration in order to compensate for the period of pre-sentence incarceration.
At common law pre-sentence custody was generally credited at a rate of 2:1. The rationale for credit greater than 1:1 is that pre-sentence custody does not count towards remission of sentence or release on parole, two avenues for an earlier release than the face amount of a sentence of imprisonment. Thus, one day spent on remand is longer than one day spent in a sentence.
2009 Amendments to the Criminal Code
In 2009, Parliament modified the common law practice by enacting Bill C-25 “An Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody)”. It came into force on February 22, 2010.
The bill introduces the following to s. 719 of the Criminal Code:
(3) In determining the sentence to be imposed on a person convicted of an offence, the 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.
(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 recorded under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).
There have been conflicting interpretations of the new enactment. The disagreement turns on the interpretation of “if circumstances justify it” in s. 3.1. The restrictive view holds that enhanced credit is available only in exceptional circumstances; the broader view holds that ordinary circumstances, such as the unavailability of remission and parole, are acceptable. Because remission and parole apply in every case, if their loss is sufficient to trigger 719(3.1) the higher credit 1.5:1 will be available in every case. The exception will become the rule.
The Nova Scotia Court of Appeal Decision
In Carvery, the NSCA adopted the broader view. The court noted that Parliament did not describe what type of circumstances would justify greater credit, nor did it exclude loss of remission or parole when it could have.
It cited R v Wust,  1 SCR 455 [Wust] (a Supreme Court decision interpreting the predecessor to s. 719(3)) for the proposition that the legislation must be interpreted in a manner that is consistent with the general principles of sentencing. The court found that the restrictive interpretation offends the fundamental principle of proportional punishment; accordingly the broader interpretation must prevail.
The court then looked to Hansard to determine the object of the legislation. It gave considerable weight to comments by a senior policy analyst that the circumstances referred to in s. 719(3.1) are not exceptional. It gave less weight to a statement made by the Justice Minister that the “general rule” is a credit of 1:1.
The court concluded that a judge, acting under s. 719(3.1) can grant credit for pre-sentence custody greater than 1:1 based on considerations which include potential loss of earned or statutory remission and parole eligibility.
The heart of the decision is a strong dislike for the reduction of pre-sentence credits. This motivation explains a number of puzzling findings of the NSCA, such as that the maximum set in s. 719(3) is “not really a maximum” because it is also the minimum required by basic fairness.
The dislike may be justified. The loss of remission and parole opportunities while in pre-sentence custody is a serious deprivation. Where an accused has a good chance of seeing the face value of his or her sentence reduced by these mechanisms, it only makes sense for days spent in custody without the chance of reduction to count more than days spent where remission and parole are available.
That said, a court does not need to like a law to apply it. Where Parliament passes an unambiguous law, the courts must apply it as it was intended subject to a successful constitutional challenge.
A Charter challenge was indeed brought in R v Johnson, 2011 ONCJ 77 [Johnson]. The Ontario Court of Justice concluded that the amendment did not violate s. 15; nor did it violate s. 7 of the Charter provided that access to the 1.5:1 ratio is not limited to exceptional, rare or extraordinary circumstances. There has been no determination as to whether excluding remission and parole considerations effectively limits access to the 1.5:1 ratio such that, in the opinion of the Ontario Court of Justice, s. 7 is violated. The Johnson decision was appealed in December, and the appeal decision will hopefully yield a more satisfying explanation of s. 719.
In the absence of a Charter challenge which would permit the court to address the question, the court in Carvery scrutinized the amendments for uncertainty.
I am sympathetic to concerns about potential unfairness to the accused caused by a 1:1 credit system, but on the plain language of the amendment I find it difficult to understand the NSCA’s interpretation. Subsection 719(3) sets a general rule where credit of 1:1 is the “maximum.” Subsection 719(3.1) creates an exception. This exceptional nature is evident from the sequence of the two sections, and that s. 719(3.1) includes the more restrictive term “if the circumstances justify.”
While the principle in Wust is attractive, in my understanding it applies only where there is ambiguity; in my opinion s. 719 is not ambiguous, for better or for worse.
Because s. 719(3.1) is the exception, the circumstances which would justify a higher credit cannot be those that arise in every case such as the loss of remission and parole. If they did, s. 719(3.1) would lose its exceptional character and credit of 1.5:1 would become the general rule. While the higher credit may be available fairly easily, the legislation requires some additional factors to justify awarding them. These factors could include bad conditions on remand or unusual delay in sentencing not attributable to conduct by the defence.
For example, a satisfactory result may have been reached in this case if the trial judge had based her decision to award the enhanced credit ratio on the length of time Carvery spent in custody prior to trial. He was held nine months prior to sentencing. This may have been a more satisfying basis for awarded enhanced credit.
The NSCA referred to the fundamental principle of proportionality in its interpretation of the provision. This principle also applies in determining sentencing; if after applying the reduced credit ratio the court feels the sentence is too long, it can shorten the sentence to achieve proportionality between the offence and the punishment. Of course, the court cannot do so where a mandatory minimum sentence – another recent addition to the Criminal Code – is imposed
In recent years Parliament has passed a number of controversial amendments to the Criminal Code. The wisdom of these amendments may be questionable. These amendments, which include s. 719 and minimum sentencing provisions, are generally harsher to the accused than the previous law. Courts may be able to address concerns about the fairness of these amendments directly in constitutional challenges. Absent such a claim, judges who are resistant to the amendments have – much like the court did here – stretched the interpretation of the amendments so as to generate a result more in keeping with the previous law.[filed: Criminal Code Criminal Law]