R. v. Summers (S.) (2014), 316 O.A.C. 349 (SCC)
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Temp. Cite: [2014] O.A.C. TBEd. AP.017
Her Majesty The Queen (appellant) v. Sean Summers (respondent) and Director of Criminal and Penal Prosecutions of Quebec, British Columbia Civil Liberties Association, Criminal Lawyers’ Association of Ontario, John Howard Society of Canada and Canadian Civil Liberties Association (interverers)
(35339; 2014 SCC 26; 2014 CSC 26)
Indexed As: R. v. Summers (S.)
Supreme Court of Canada
McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ.
April 11, 2014.
Summary:
The accused was convicted of manslaughter for his infant daughter’s death (shaken baby syndrome). At trial, the accused pleaded guilty. He was sentenced to eight years’ imprisonment. He spent approximately 10.5 months in pre-trial custody. The sentencing judge concluded that the lack of parole eligibility during remand detention warranted enhanced credit for time served (Criminal Code, s. 719(3.1)), at the rate of 1.5:1, which amounted to 16 months. The Crown appealed on the sole ground that the sentencing judge erred by holding that the lack of remission or parole eligibility during pre-sentence custody, on its own, could justify enhanced credit under s. 719(3.1). The Crown argued that properly interpreted, s. 719(3.1) contemplated that only exceptional circumstances could justify enhanced credit and that a remand offender’s loss of remission and parole eligibility during pre-sentence custody did not qualify as an exceptional circumstance within the meaning of s. 719(3.1).
The Ontario Court of Appeal, in a decision reported 304 O.A.C. 322, dismissed the Crown’s sentence appeal. The court concluded that s. 719(3.1) allowed a sentencing judge to credit pre-sentence custody at a ratio up to, but not exceeding, 1.5:1 for each day spent in pre-sentence custody where, on consideration of all relevant circumstances, such credit was necessary to achieve a fair and just sanction in accordance with the statutory scheme for sentencing and punishment set out in the Code. On a proper record, the relevant circumstances that might justify such enhanced credit included ineligibility for remission and parole while in remand custody. The sentencing judge did not err in granting enhanced credit in this case. The Crown appealed. At issue was whether ineligibility for early release and parole while on remand was a “circumstance” that could justify granting enhanced credit for pre-sentence custody under s. 719(3.1) of the Criminal Code.
The Supreme Court of Canada dismissed the appeal. The sentencing judge did not err in law by granting enhanced credit under s. 719(3.1) on the basis of the accused’s loss of eligibility for early release and parole. The sentencing judge did not rely on improper factors in assessing credit for pre-trial custody.
Criminal Law – Topic 5810.2
Sentencing – Sentencing procedure and rights of the accused – Reasons for sentence – [See fifth
Criminal Law – Topic 5848.2
].
Criminal Law – Topic 5848.2
Sentencing – Considerations on imposing sentence – Time already served – The accused pleaded guilty to manslaughter – He spent approximately 10.5 months in pre-trial custody – The sentencing judge sentenced the accused to eight years’ imprisonment – The judge concluded that the lack of parole eligibility during remand detention warranted enhanced credit under s. 719(3.1) of the Criminal Code at the rate of 1.5:1, which amounted to 16 months – The Crown appealed, arguing that the sentencing judge erred in law by crediting the accused’s pre-sentence custody at the rate of 1.5:1 to take account of his ineligibility for remission and parole while in remand custody – The Ontario Court of Appeal dismissed the appeal – The Crown appealed again – The Supreme Court of Canada dismissed the appeal – The sentencing judge did not err in law by granting enhanced credit under s. 719(3.1) on the basis of the accused’s loss of eligibility for early release and parole – See paragraphs 84 to 89.
Criminal Law – Topic 5848.2
Sentencing – Considerations on imposing sentence – Time already served – Section 719(3) of the Criminal Code provided that credit for pre-sentence custody was limited to a maximum of one day for each day spent in custody – However, under s. 719(3.1), if circumstances justified it, the maximum was one and one-half days for each day spent in custody – The Supreme Court of Canada interpreted s. 719(3.1) having regard to the text of the provision, the structure of the section (i.e., that it was an exception to s. 719(3)), the intention of Parliament (i.e., by looking to the legislative history, including Hansard evidence and committee debates), and the scheme of the sentencing regime) – The court concluded that the “circumstances” justifying enhanced credit under s. 719(3.1) could include loss of eligibility for early release (i.e., statutory release and earned remission) and parole – See paragraphs 32 to 69.
Criminal Law – Topic 5848.2
Sentencing – Considerations on imposing sentence – Time already served – Section 719(3) of the Criminal Code provided that credit for pre-sentence custody was limited to a maximum of one day for each day spent in custody – However, under s. 719(3.1), if circumstances justified it, the maximum was one and one-half days for each day spent in custody – The Supreme Court of Canada discussed how to calculate pre-sentence credit under these provisions – See paragraphs 70 to 83 – The court stated, inter alia, that “In determining credit for pre-sentence custody, judges may credit at most 1.5 days for every day served where circumstances warrant. While there is now a statutory maximum, the analytical approach endorsed in [R. v.] Wust [SCC 2000] otherwise remains unchanged. Judges should continue to assign credit on the basis of the quantitative rationale, to account for lost eligibility for early release and parole during pre-sentence custody, and the qualitative rationale, to account for the relative harshness of the conditions in detention centres” – See paragraph 70.
Criminal Law – Topic 5848.2
Sentencing – Considerations on imposing sentence – Time already served – Section 719(3) of the Criminal Code provided that credit for pre-sentence custody was limited to a maximum of one day for each day spent in custody – However, under s. 719(3.1), if circumstances justified it, the maximum was one and one-half days for each day spent in custody – The Supreme Court of Canada discussed how to calculate pre-sentence credit under these provisions – See paragraphs 70 to 83 – The court, inter alia, stated that “The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely. Of course, a lower rate may be appropriate when detention was a result of the offender’s bad conduct, or the offender is likely to obtain neither early release nor parole. When the statutory exceptions within s.ྭ719(3.1) are engaged, credit may only be given at a rate of 1 to 1. Moreover, s. 719 is engaged only where the pre-sentence detention is a result of the offence for which the offender is being sentenced” – See paragraph 71.
Criminal Law – Topic 5848.2
Sentencing – Considerations on imposing sentence – Time already served – Section 719(3) of the Criminal Code provided that credit for pre-sentence custody was limited to a maximum of one day for each day spent in custody – However, under s. 719(3.1), if circumstances justified it, the maximum was one and one-half days for each day spent in custody – The Supreme Court of Canada discussed how to calculate pre-sentence credit under these provisions – See paragraphs 70 to 83 – The court stated, inter alia, that “The sentencing judge is also required to give reasons for any credit granted (s. 719(3.2)) and to state ‘the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed’ (s. 719(3.3)). This is not a particularly onerous requirement, but plays an important role in explaining the nature of the sentencing process, and the reasons for giving credit, to the public” – See paragraph 74.
Criminal Law – Topic 5848.2
Sentencing – Considerations on imposing sentence – Time already served – Section 719(3) of the Criminal Code provided that credit for pre-sentence custody was limited to a maximum of one day for each day spent in custody – However, under s. 719(3.1), if circumstances justified it, the maximum was one and one-half days for each day spent in custody – The Supreme Court of Canada (Karakatsanis, J.) stated that “I agree that s. 719(3.1) is structured as an exception to s. 719(3). Section 719(3.1) begins with the words ‘[d]espite subsection (3)’ and applies only when ‘circumstances justify it’, which tends to indicate that it is an exception to the general rule. While marginal notes are not part of the enactment and are of limited value in statutory interpretation (Interpretation Act, R.S.C. 1985, c. I-21, s. 14), the fact that the subsection has the marginal note ‘[e]xception’ is consistent with this conclusion. I also agree with the Crown that it is somewhat inelegant to create an exception that applies in more cases than the general rule. However, the strength of this argument is limited for three reasons …” – See paragraphs 43 and 44.
Statutes – Topic 1845
Interpretation – Intrinsic aids – Titles, headings and section numbers – Headings and marginal notes – [See sixth
Criminal Law – Topic 5848.2
].
Words and Phrases
If the circumstances justify it
– The Supreme Court of Canada interpreted the phrase “if the circumstances justify it” as found in s. 719(3.1) of the Criminal Code, R.S.C. 1985, c. C-46 (i.e., the provision respecting increased credit for time served in pre-sentence custody) – See paragraphs 32 to 69.
Cases Noticed:
R. v. Wust (L.W.), [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 3].
R. v. Bradbury (E.T.) (2013), 339 B.C.A.C. 169; 578 W.A.C. 169; 2013 BCCA 280, refd to. [para. 6, footnote 1].
R. v. Carvery (L.A.) (2012), 321 N.S.R.(2d) 321; 1018 A.P.R. 321; 2012 NSCA 107, affd. (2014), 456 N.R. 35; 343 N.S.R.(2d) 393; 1084 A.P.R. 393; 2014 SCC 27, refd to. [para. 6].
R. v. Stonefish (S.T.) (2012), 288 Man.R.(2d) 103; 564 A.P.R. 103; 2012 MBCA 116, refd to. [para. 6, footnote 2].
R. v. Johnson (F.B.) (2013), 553 A.R. 157; 583 W.A.C. 157; 85 Alta. L.R.(5th) 320; 2013 ABCA 190, refd to. [para. 6, footnote 2].
R. v. Cluney (N.) (2013), 338 Nfld. & P.E.I.R. 57; 1049 A.P.R. 57; 2013 NLCA 46, refd to. [para. 6, footnote 2].
R. v. Henrico, 2013 QCCA 1431, refd to. [para. 6, footnote 2].
R. v. Rezaie (M.) (1996), 96 O.A.C. 268; 31 O.R.(3d) 713; 112 C.C.C.(3d) 97 (C.A.), refd to. [para. 20].
Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 35].
Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 35].
Townsend v. Kroppmanns et al., [2004] 1 S.C.R. 315; 316 N.R. 279; 192 B.C.A.C. 144; 315 W.A.C. 144; 2004 SCC 10, refd to. [para. 55, footnote 5].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, s. 24(1) [para. 73].
Corrections and Conditional Release Act, S.C. 1992, c. 20, sect. 120, sect. 127(3) [para. 24].
Criminal Code, R.S.C. 1985, c. C-46, sect. 457(1), sect. 457(2) [para. 46]; sect. 515(9.1), sect. 524(4), sect. 524(8) [para. 39]; sect. 672.14(3), sect. 672.47(2) [para. 38]; sect. 718, sect. 718.1, sect. 718.2 [para. 59]; sect. 719(3), sect. 719(3.1) [para. 8]; sect. 719(3.2), sect. 719(3.3) [para. 53]; sect. 742.6(16) [para. 38]; sect. 745 [para. 79, footnote 7].
Interpretation Act, R.S.C. 1985, c. I-21, sect. 14 [para. 43].
Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, sect. 28, sect. 28.1 [para. 24, footnote 3].
Prisons and Reformatories Act, R.S.C. 1985, c. P-20, sect. 6 [para. 24].
Truth in Sentencing Act, S.C. 2009, c. 29, generally [para. 4].
Authors and Works Noticed:
Babooram, Avani, The changing profile of adults in custody, 2006/2007 (2008), Statistics Canada Juristat (online: http:// www.statcan.gc.ca/pub/85-002-x/2008010/article/10732-eng.pdf), generally [para. 67, footnote 6].
Canada, House of Commons Standing Committee on Justice and Human Rights, Evidence, No. 20, 2nd Sess., 40th Parl., May 6, 2009, p. 11 [para. 52].
Canada, Senate, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Evidence, No. 14, 2nd Sess., 40th Parl., October 1, 2009, pp. 27 to 30 [para. 67, footnote 6].
Ruby, Clayton C., Chan, Gerald J., and Hasan, Nader R., Sentencing (8th Ed. 2012), § 13.38, 13.39 [para. 25].
Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 205 [para. 55, footnote 5]; 593, 594, 609 [para. 51].
Counsel:
Gregory J. Tweney and Molly Flanagan, for the appellant;
Brennan Smart and Russell Silverstein, for the respondent;
Dennis Galiatsatos, for the Director of Criminal and Penal Prosecutions of Quebec, intervener;
Ryan D.W. Dalziel and Anne Amos-Stewart, for the British Columbia Civil Liberties Association, intervener;
Ingrid Grant, for the Criminal Lawyers’ Association of Ontario, intervener;
Andrew S. Faith and Jeffrey Haylock, for the John Howard Society of Canada, intervener;
Jasmine T. Akbarali and Josh Koziebrocki, for the Canadian Civil Liberties Association, intervener.
Solicitors of Record:
Attorney General of Ontario, Toronto, Ontario, for the appellant;
Brennan Smart Law Office, Kitchener, Ontario; Russell Silverstein & Associate, Toronto, Ontario, for the respondent;
Criminal and Penal Prosecution Services of Quebec, Montréal, Quebec, for the Director of Criminal and Penal Prosecutions of Quebec, intervener;
Bull, Housser & Tupper, Vancouver, B.C., for the British Columbia Civil Liberties Association, intervener;
Russell Silverstein & Associate, Toronto, Ontario, for the Criminal Lawyers’ Association of Ontario, intervener;
Polley Faith, Toronto, Ontario, for the John Howard Society of Canada, intervener;
Lerners, Toronto, Ontario, for the Canadian Civil Liberties Association, intervener.
This appeal was heard on January 23, 2014, before McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ., of the Supreme Court of Canada. The following decision was delivered for the court by Karakatsanis, J., on April 11, 2014.
