



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Clarke, 2013
    ONCA 7

DATE: 20130111

DOCKET: C55206

Laskin, Goudge and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Calvin Clarke

Appellant

Diana Lumba, for the appellant

Mabel Lai, for the respondent

Heard: December 10, 2012

On appeal from the sentence imposed on February 18, 2011
    by Justice Fergus O'Donnell of the Ontario Court of Justice.

Laskin J.A.:

A.

introduction

[1]

The only issue on this sentence appeal is whether the
Truth in
    Sentencing Act
, S.C. 2009, c. 29, governs the credit to which the
    appellant is entitled for his pre-sentence custody.  Under the Act, an offender
    cannot receive more than one-and-a-half days credit for each day spent in
    pre-sentence custody.

[2]

The appellant
committed
the offences for which he was convicted
    before the Act came into force, but he was
charged
with the offences
    after the Act came into force.  Section 5 of the Act says that the limits on credit
    for pre-sentence custody apply only to persons
charged
after the Act
    comes into force (emphasis added).

[3]

The trial judge held that the Act applied, and gave the appellant the
    maximum credit the Act permits: one-and-a-half days credit for each day spent
    in pre-sentence custody.  The appellant says that the Act does not apply to
    offences committed before it came into effect.  Therefore, he is entitled to
    two days or even three days credit for every day he spent in pre-sentence
    custody.  The Crown accepts that if the Act does not apply, the appellant is
    entitled to 2 for 1 credit.

B.

background

(1)

The Offences and the Sentence

[4]

The appellant, now 26 years old, was charged with break and enter and
    numerous firearms-related offences.  He pleaded guilty.  The trial judge
    sentenced him to 10 years imprisonment, less 17 months credit for the 348 days
    he spent in pre-sentence custody (effectively 1.5 for 1 credit).

(2)

The
Truth in Sentencing Act

[5]

Before Parliament enacted the
Truth in Sentencing Act
, courts
    typically gave offenders 2 for 1 and occasionally even 3 for 1 credit for time
    spent in pre-sentence custody.  This enhanced credit reflected the harshness of
    that period of detention because of the absence of remedial programs and the
    inapplicability of remission provisions to that period:
R. v. Wust
,
    2000 SCC 18, [2000] 1 S.C.R. 455, at para. 28.

[6]

The
Truth in Sentencing Act
took away the courts discretion to
    give 2 for 1 or even greater credit for pre-sentence custody.  Instead, the Act
    stipulates in s. 3(3) that though the court may take into account any time
    spent in custody, the court shall limit any credit for that time to a maximum
    of one day for each day spent in custody.

[7]

However, the Act does provide in s. 3(3.1) that, despite s. 3(3), the
    court may give enhanced credit to a maximum of one-and-a-half days for each day
    spent in custody, "if the circumstances justify it.

[8]

In this case, the appellant was beaten while in custody.  The trial
    judge held that the appellants beating coloured the balance of his time in
    custody and the quality of that time and his sense of security during that time
    in custody.  That circumstance standing alone justified the maximum credit
    permitted under s. 3(3.1): one-and-a-half days for each day the appellant spent
    in pre-sentence custody.

[9]

On this appeal, the critical provision of the Act is s. 5.  Section 5 states
    that the limits on credit for pre-sentence custody in the subsections enacted
    by s. 3 apply only to persons charged after the day on which those subsections
    come into force.  Those subsections came into force on February 22, 2010.  As
    is evident from the chronology to which I now turn, the appellant was charged
    after that date.

(3)

Relevant Chronology

[10]

The
    relevant dates and events are as follows:

February
    20-21, 2010:
The appellant commits the offences.

February 22, 2010:
Section 3 of the
Truth
    in Sentencing Act
comes into force.

March 11 or 12, 2010:
The appellant is arrested and
    charged with the offences.

November 10, 2010:
The appellant pleads guilty.

February 18, 2011:
The appellant is sentenced.

C.

analysis

[11]

This
    appeal is not about the wisdom of the
Truth in Sentencing Act
. 
    Indeed, it is not even about the constitutionality of the Act: the appellant
    has not argued on appeal, and did not argue at trial, that s. 5 infringes s.
    11(i) of the
Canadian

Charter of Rights and Freedoms
. 
    Section 11(i) provides that if the punishment for an offence has been varied
    between the time of commission of the offence and the time of sentencing, the
    person found guilty of the offence has the rightto the benefit of the lesser
    punishment.  That section plays no part in this appeal.

[12]

Therefore,
    this appeal turns solely on a question of statutory interpretation.  The
    question is whether the Act applies to an offenders sentence, where the
    offender committed the offences for which he was sentenced before the Act came
    into force, but was charged with those offences after the Act came into force. 
    I would answer that question yes  the Act does apply.

[13]

Our
    courts have developed principles to determine when new legislation applies. 
    One cardinal principle is that a person convicted of a criminal offence should ordinarily
    be sentenced under the provisions in place when the offence was committed:
R.
    v. Johnson,
2003 SCC 46, [2003] 2 S.C.R. 357, at para. 41.  This principle
    is but an example of the broader principle that legislation affecting
    substantive rights should be presumed not to apply retrospectively:
R. v.
    Dineley
, 2012 SCC 58, at para. 10.  The appellant relies on this
    presumption in arguing that s. 3 of the Act, which affects his substantive
    right to greater than 1.5 for 1 credit, should not be applied to his sentence
    for offences he committed before the Act came into force.

[14]

However,
    the presumption against retrospectivity can be displaced by a clear legislative
    intent that a provision is to apply retrospectively.  Where the statutory
    language carries that clear meaning, the presumption does not apply.  In her
    majority reasons in
R. v. Dineley
, at para. 10, Deschamps J. discussed
    the presumption and how it might be rebutted:

There are a number of rules of interpretation that can be
    helpful in identifying the situations to which new legislation applies. Because
    of the need for certainty as to the legal consequences that attach to past
    facts and conduct, courts have long recognized that the cases in which
    legislation has retrospective effect must be exceptional.  More
    specifically, where legislative provisions affect either vested or substantive
    rights, retrospectivity has been found to be undesirable.
New legislation that affects substantive rights will be
    presumed to have only prospective effect unless it is possible to discern a
    clear legislative intent that it is to apply retrospectively
. [Citations
    omitted; emphasis added].

[15]

Does
    s. 5 of the
Truth in Sentencing Act
show a clear legislative intent that
    the new restrictions on credit for pre-sentence custody in s. 3 are meant to
    apply restrospectively, to the sentencing of persons who committed an offence
    before the Act came into force but were charged after?

[16]

The
    Alberta Court of Appeal recently considered this same question in
R. v.
    Serdyuk
, 2012 ABCA 205.  The Court concluded, at para. 28, that Parliament
    did not intend the Act
In our view, it is clear that Parliament intended by s. 5 of
    the
Truth in Sentencing Act
to put beyond question that
only
persons who committed their crimes and were charged for them
after
the
    amended
Code
provisions came into force would be affected by the
    amendments. Neither official language version mentions the date of offence,
    but, as noted below, the absence of such reference is not an obvious exclusion.
    [Emphasis in original.]
[17]

I
    disagree.  Section 5 shows a clear parliamentary intent that the new provisions
    for credit for pre-sentence custody apply to persons, such as the appellant,
    who committed an offence before February 22, 2010, but were charged with the offence
    after that date.  I rest my submission on two grounds.
[18]

First,
    the starting rule of statutory interpretation is to examine the plain words
    Parliament used:
R. v. D.A.I.
, 2012 SCC 5, [2012] 1 S.C.R. 149, at
    para. 26.  If those words have a clear meaning and do not give rise to any
    ambiguity  that is, they are not reasonably capable of more than one meaning 
    the court should give effect to those words.
[19]

The
    words of s. 5 are clear and admit of only one meaning.  The new provisions
    apply to the sentencing of all persons charged after the Act came into force,
    no matter when the offences were committed.  I agree with the respondent that to
    give effect to the appellants position, one would have to read into s. 5 the
    following underlined words:
[The new provisions], as enacted by s. 3, apply only to persons
    charged
with an offence committed
after the day on
    which those [provisions] come into force.
[20]

Parliament
    has to be taken to know the difference between the date an offence takes place
    and the date a person is charged with the offence.  To read in those underlined
    words would change Parliaments intent on the applicability of the
Truth in
    Sentencing Act
.  The trial judges interpretation of the Act is therefore
    consistent with the plain words of the statute.
[21]

Second,
    the words of a statute take their colour and their meaning from their context
    and the Acts purpose:
Canada (Information Commissioner) v. Canada
    (Minister of National Defence)
, 2011 SCC 25, [2011] 2 S.C.R. 306, at para.
    27.
[22]

One
    obvious purpose of the
Truth in Sentencing Act
is to reduce the credit
    available for the population of offenders detained before sentencing. The
    triggering date for detention before sentencing is the date the person is
    charged and held pending a bail hearing.  The date a person commits an offence
    is of no relevance to this purpose of the
Truth in Sentencing Act
. 
    Thus, the appellants interpretation of s. 5 is at odds with the statutes
    purpose.  The trial judges interpretation that the Act applies to the
    appellant because he was charged after it came into force is consistent with
    the statutes purpose.
[23]

For
    these reasons, I agree with the trial judge and would dismiss the appeal.
D.

conclusion
[24]

The
Truth in Sentencing Act
governs the credit to be given to the
    appellant for his pre-sentence custody.  I would grant leave to appeal
    sentence, but would dismiss the appeal.
Released: Jan. 11, 2013                               John
    Laskin J.A.
JL                                                                     I
    agree S.T. Goudge J.A.
I
    agree E.E. Gillese J.A.