



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Akintunde, 2015 ONCA 597

DATE: 20150904

DOCKET: C57743

Blair, Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

George Akintunde

Appellant

George Akintude, in person

Matthew Gourlay, duty counsel

Vanita Goela, for the respondent

Heard:  February 11, 2015

On appeal from the conviction entered by Justice Kofi Barnes of
    the Superior Court of Justice, dated June 1, 2013, sitting with a jury, and
    from the sentence imposed on August 16, 2013.

Tulloch J.A.:

A.

Introduction

[1]

This matter came before us as an inmate appeal in which the appellant
    raised a number of grounds. At the hearing, the appeal against the conviction
    was abandoned and the appellant argued the sentencing matter.

[2]

The sentence appeal raises a discrete issue. The issue is whether an
    accused who has consented to the revocation of his bail and who does not bring
    a show cause hearing is disentitled from enhanced credit for pre-sentence
    custody by virtue of s. 719(3.1) of the
Criminal Code
, R.S.C., 1985,
    c. C-46. To answer this question, I will examine what it means for an accused
    to have been detained in custody under s. 524(8) of the
Criminal Code
.

[3]

Section 719(3.1) provides that an accused who has been detained in
    custody under s. 524(8) of the
Criminal Code
is not entitled to 1.5 to
    1 credit for time spent in pre-sentence custody. The relevant part of s. 524(8)
    is that when a judge finds an accused has contravened a term of his
    recognizance or committed an indictable offence while on release, the judge
    shall cancel the accuseds form of release and order the accused detained in
    custody. This will occur unless the accused shows cause as to why he or she
    should not be detained.

[4]

The appellant breached a condition of his release. As a result, his bail
    was cancelled. He did not request a show cause hearing, and was detained until
    sentencing. The sentencing judge concluded that the appellant was detained under
    s. 524(8). He applied s. 719(3.1) and held the appellant was not entitled to
    1.5 to 1 credit for the period he spent in custody following the revocation of
    his bail.

[5]

The appellant argues the sentencing judge erred in concluding that he
    was ineligible for 1.5 to 1 credit. He argues that to be detained under s.
    524(8), a judge must order the accused detained after a show cause hearing and
    that a cancellation of bail alone does not qualify. It is my view that the
    sentencing judge did not err. The appellant was not entitled to 1.5 to 1 credit
    because he was detained under s. 524(8). Accordingly, I would dismiss the
    appeal for the reasons below.

B.

Facts

[6]

The appellant, George Akintunde, was charged with importing heroin,
    conspiracy to import heroin, and two counts of possession of heroin for the
    purpose of trafficking. His wife was a co-accused. The appellant was prohibited
    from having contact with his wife by the terms of his recognizance. The
    appellant was convicted for breach of recognizance and his bail was revoked
    after being in contact his wife.

[7]

The appellant consented to his detention. No show cause hearing was
    conducted, and he remained in custody until sentencing. The appellant was
    convicted on the importing and possession counts.

[8]

At sentencing, the appellants eligibility for enhanced credit for
    certain periods of his pre-sentence custody was at issue. The period the
    appellant spent in custody prior to sentencing falls into four categories:

1. The period prior to the breach of
    recognizance;

2. The sentence for the breach of
    recognizance;

3. The period following the
    cancellation of his bail; and

4. The period
    following his conviction and prior to sentencing.

[9]

Defence counsel requested that the appellant be given 1.5 to 1 credit
    for the entire period of pre-sentence custody. The Crown argued the appellant
    was not entitled to 1.5 to 1 credit for the period following the cancellation
    of his bail and before his conviction because he was detained under s. 524(8)
    of the
Criminal Code
and therefore fell into one of the exclusions set
    out in s. 719(3.1).

[10]

The
    Crown had argued that the appellant was not in a neutral position simply
    because he chose to remain in custody and not to seek bail. He was in custody
    as a result of his own breach, and was not entitled to obtain the benefit of
    enhanced credit simply because he had not applied for bail, when he knew that
    in any event it was unlikely he would be successful.

[11]

The
    sentencing judge accepted the Crowns submission that the appellant was
    detained under s. 524(8) of the
Criminal Code
. The appellant was
    therefore not eligible for enhanced credit for the period following the
    cancellation of his bail and prior to his conviction.

[12]

The
    sentencing judge gave the appellant 1.5 to 1 credit for the period before his
    bail was revoked, and for the period lasting from his conviction until
    sentencing. The judge stated that this period totalled 95 days, and applied a
    credit of 145.5 days. He then credited the appellant for the remaining time,
    266 days, on a 1 to 1 basis. The total pre-sentence credit awarded to the
    appellant was 411 days.

[13]

The
    judge sentenced the appellant to eight years on the importation charge,
    consecutive to a four year sentence for possession for the purpose of
    trafficking. Including the credit for pre-sentence custody, the appellants
    total sentence was ten years, ten months and nineteen days.

C.

The Relevant statutory provisions

[14]

In
    2009, Parliament passed the
Truth in Sentencing Act
, S.C. 2009, c. 29
    (
TISA
), which amended the
Criminal Code
to cap credit for
    pre-sentence custody at a maximum of 1.5 days for each day spent in custody.
    Section 719(3.1) of the
Criminal Code
provides that if the
    circumstances justify it, the maximum credit a judge may grant for pre-sentence
    custody is 1.5 to 1.

[15]

Sections
    719(3) and 719(3.1) state:

719. (3) In determining the
    sentence to be imposed on a person convicted of an offence, a 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 record under subsection 515(9.1) or the person was detained in
    custody under subsection 524(4) or (8).

[16]

Section
    719(3.1) imposes limitations on when a court may grant 1.5 to 1 credit. First,
    enhanced credit will not be available if the accused was detained in custody
    due to his or her previous criminal convictions and the judge indicated as much
    on the record under s. 515(9.1). This will be referred to as the criminal
    record exclusion.

[17]

Enhanced
    credit will also be unavailable if the person was detained in custody under
    subsection 524(4) or (8). Generally, persons detained in custody under s.
    524(4) or (8) are persons who have committed indictable offences while out on
    release or who have breached the conditions of their release. These exclusions
    are very similar, though they involve different procedures.

[18]

The
    exclusion relating to s. 524
(8) is at issue here, and will be
    referred to as the misconduct on release exclusion. Section 524(8) reads:

524. (8) Where an accused
    described in subsection (3), other than an accused to
whom
paragraph (
a
) of that subsection applies, is
    taken before the justice and the justice finds

(
a
) that
    the accused has contravened or had been about to
contravene
his summons, appearance notice, promise to appear, undertaking or
    recognizance, or

(
b
) that
    there are reasonable grounds to believe that the accused has committed an
    indictable offence after any summons, appearance notice, promise to appear,
    undertaking or recognizance was issued or given to him or entered into by him,

he shall cancel the summons, appearance
    notice, promise to appear, undertaking or recognizance and order that the
    accused be detained in custody unless the accused, having been given a
    reasonable opportunity to do so, shows cause why his detention in custody is
    not justified within the meaning of subsection 515(10).

This section applies when an accused has
    been arrested under a warrant or by a peace officer in certain circumstances,
    and is taken before a justice for a hearing.

[19]

Prior
    to these amendments, the
Criminal Code
did not impose any restrictions
    on enhanced credit. Offenders were generally given enhanced credit for two
    reasons: (1) pre-sentence custody is quantitatively more onerous than
    post-sentence custody because legislative provisions for parole and early release
    eligibility do not account for pre-sentence custody; and (2) pre-sentence
    custody is qualitatively more onerous than post-sentence custody because remand
    centres do not offer the same educational or rehabilitative programs and are
    often overcrowded: see
R. v.

Summers
, 2014 SCC 26, [2014] 1
    S.C.R. 575, at paras. 23-29.

D.

The Parties Positions

[20]

The
    appellant submits that for an accused to be detained in custody under s.
    524(8), two steps must be met: (1) an accuseds prior form of release must be
    cancelled; and (2) the justice must order the accused be detained in custody.
    The accused is not detained under s. 524(8), according to the appellant, unless
    the accused has brought and failed at a show cause application because no
    separate order is issued until after such an application.

[21]

The
    appellant relies on
R. v. McDougall
, 2014 MBPC 35, 307 Man. R. (2d)
    303, leave to appeal to M.B.C.A. refused, 2014 MBCA 95, 310 Man. R. (2d) 187, to
    make this argument. I will refer to the appellants suggested interpretation as
    the
McDougall
interpretation.

[22]

The
    Crown relies on a conflicting decision from the Court of Appeal for Yukon,
R.
    v. Chambers
, 2014 YKCA 13, 316 C.C.C. (3d) 44, leave to appeal refused,
    [2014] S.C.C.A. No. 53. I will refer to this interpretation as the
Chambers
interpretation.

[23]

I
    would note that neither the sentencing judge in
McDougall
nor the
    parties to this appeal had the benefit of the Manitoba Court of Appeals
    reasons in
R. v. Ibrahim
, 2015 MBCA 62, [2015] M.J. No. 172.

E.

Discussion

[24]

The
    appellants argument requires this court to interpret both ss. 719(3.1) and
    524(8). As mentioned, the main issue here is what it means for an accused to
    have been detained in custody under s. 524(8). Does this happen automatically
    when a prior form of release is cancelled under the circumstances described in
    that section, or is a failed show cause hearing required?

[25]

In
    my view, the appellant was detained in custody under s. 524(8) even though he
    effectively consented to his detention. Below, I examine the text of ss.
    719(3.1) and 524(8), the relationship between the criminal record exclusion and
    the misconduct on release exclusion, and Parliaments intention in enacting the
TISA
. I then address which interpretation of the provisions is more
    consistent with the Supreme Court of Canadas decision in
Summers
.

(1)

Interpretation of Sections 719(3.1) and 524(8)

[26]

The
    modern approach to the interpretation of statutes has been set out by the
    Supreme Court of Canada on many occasions, and was articulated by Elmer
    Driedger in
Construction of Statutes
, 2nd ed. (Toronto: Butterworths, 1983):

Today there is only one principle or approach, namely, the
    words of an Act are to be read in their entire context and in their grammatical
    and ordinary sense harmoniously with the scheme of the Act, the object of the
    Act, and the intention of Parliament.

(a)

The Words of the Act in Context and in their Grammatical and Ordinary
    Sense

[27]

The
    operative words in s. 719(3.1) are detained in custody under s. 524(8). To
    determine what is required for an accused to be detained in custody under
    that section, it is necessary to interpret both sections.

[28]

In
McDougall
, the sentencing judge held that in Manitoba, it is common
    practice for the revocation of bail and an order of detention to be separate
    steps. An order of detention occurs after a show cause hearing. She concluded
    that both steps are required for an individual to be detained in custody under
    s. 524(8).

[29]

The
    appellant takes up the reasoning in
McDougall
. He admits that when his
    bail was revoked pursuant to s. 524(8), he was, practically speaking, detained.
    The appellant argues, however, that because he never requested a show cause
    hearing, and was not ordered to be detained after such a hearing, he has not
    been detained under s. 524(8). He submits that the process of detaining an
    accused under that section involves two steps: first, the accuseds bail is
    revoked, and second, an order is made detaining the accused. According to the
    appellant, an order detaining the accused does not issue if the accused
    consents to his or her detention. He suggests that if both the revocation and a
    detention order have not been issued, an accused is not detained under s.
    524(8).

[30]

I
    reject this argument.

[31]

In
    my view, the appellants contention that a separate detention order made
    following a show cause hearing is required ignores the logical implication of
    proceedings under s. 524(8) and the ordinary meaning of s. 719(3.1). His focus
    on a detention order is misplaced.

[32]

Section
    524(8) provides statutory authority for the cancellation of an accuseds prior
    form of release when the accused has committed an indictable offence or
    breached the terms of his or her release. When the accuseds prior form of
    release is cancelled, he or she will be automatically detained  a function of
    the reverse onus provided for in s. 524(8). That detention is provided for in
    and authorized by s. 524(8).

[33]

Section
    719(3.1) refers only to an accused who has been detained in custody under s.
    524(8). It does not require that an accused be ordered detained in custody
    under s. 524(8).

[34]

In
    my view, because the appellants prior form of release was cancelled under s.
    524(8)  and he was detained as a result  he was detained under s. 524(8).
    Whether a separate order was issued at the time of the cancellation is, in my
    view, of no consequence given the logical consequences of proceeding under s.
    524(8) and the ordinary meaning of s. 719(3.1).

[35]

This
    issue was recently considered by the Manitoba Court of Appeal in
Ibrahim
.
    The accused in that case had consented to the revocation of all of his prior
    forms of release and did not apply for judicial interim release. At sentencing,
    he was credited for pre-sentence custody on a 1.5 to 1 basis. On appeal, the
    court held that the sentencing judge had erred in finding that an order of
    detention pursuant to s. 524(8) could not be made absent a show cause hearing.

[36]

Cameron
    J.A. explained, at para. 7, cancellation of a prior order of judicial interim
    release necessitates, by operation of law, an order of detention. Following an
    order of detention, an accused may choose to show cause why his or her release
    is justified on a reverse onus basis.

[37]

At
    para. 43, the court further held, a plain reading of s. 524(8) indicates that
    an order of detention is mandatory upon cancellation of a recognizance. This
    interpretation of the provision was supported by the grammatical structure of
    the statute, the historical consideration of the legislation as well as
    academic interpretation of the section, and was consistent with the overall
    provisions for judicial interim release found in the
Code
: see paras 43-52.

[38]

The
    Manitoba Court of Appeal also cited the Court of Appeal for Yukon decision in
Chambers
. Mr. Chambers had consented to his remand after his prior form of
    release was revoked. In that case, Bauman C.J.B.C. similarly noted that s.
    719(3.1) does not require an express

order

of detention under
    s. 524(8) after a show cause hearing, but rather that an accused be detained
    in custody under that section (at para. 52). Chief Justice Bauman questioned that
    if Mr. Chambers was not detained under that section, by what authority was he
    detained? (at para. 51). At para. 59 of his reasons, he accepted the Crowns
    submission as follows:

Once the prosecution establishes that the statutory
    preconditions are met, the presiding justice must cancel the existing release
    and the accused is detained. The effect of a revocation of bail is immediate 
    no further order of the Court is required for the accused to be detained. This
    is because the revocation of bail under section 524(8), by itself, also
    reverses the onus and creates a presumption that the accused remain in custody.
    Unless and until the accused makes a successful application, he is detained
    under section 524(8) of the
Criminal Code
. At any point after the
    revocation of the prior release, the accused may be given a reasonable
    opportunity to show cause why his or her detention is not justified. The common
    practice of consenting to remand in these circumstances is only the deferral
    of the right, which may be exercised at any time, to show cause. Upon cause
    being shown, the presiding justice may make a further order under section
    524(8) of the
Criminal Code
to detain the accused or release him under
    suitable conditions. Section 719(3.1) of the
Criminal Code
excludes
    from a person detained under section 524(8) and not ordered detained under
    the section.

[39]

I
    agree with this reasoning. Section 524(8) provides the authority for the
    cancellation of an accuseds bail once certain preconditions are met. An
    accused can be detained under that section either as a result of the revocation
    of his or her prior form of release or, subsequently, as a result of an order
    made following a show cause hearing. In both cases, s. 524(8) provides the authority
    for the detention. Both types of detention fall within the plain meaning of
    detained in custody under s. 524(8), and both satisfy the exception to
    enhanced credit in s. 719(3.1).

(b)

The Criminal Record and the Misconduct on Release Exclusion Scheme

[40]

Section
    719(3.1) sets out two situations where an accused will be precluded from
    obtaining enhanced credit. As discussed, the criminal record exclusion occurs when
    the accused is detained primarily on the basis of his or her prior criminal
    record, and the justice of the peace endorses the record accordingly in
    writing. The misconduct on release exclusion arises when the accused has
    committed an indictable offence or breached the conditions of his or her
    release, and is detained under s. 524(4) or (8) as a result.

[41]

The
    sentencing judge in
McDougall
concluded that an accused who had
    consented to detention was not detained under s. 524(8) in part because she
    considered this consistent with the criminal record exclusion. If an accused
    with a significant record consents to detention, there will be no endorsement
    on the record, even if the accused would likely have been refused release on
    the basis of his or her convictions. The accused retains eligibility for
    enhanced credit. The sentencing judge reasoned that Parliament would not have
    intended to treat these two types of accused persons differently.

[42]

With
    respect, I disagree with the sentencing judges reasoning in
McDougall
.

[43]

First,
    the two exclusions deal with different situations:  accused persons who have
    engaged in some form of misconduct while on release and those who are detained
    primarily as a result of their record. It is open to Parliament to treat these
    two groups differently. Parliament has in fact done so. For example, Parliament
    has required a written notation on the record for a person to be deprived of
    enhanced credit under the criminal record exclusion. No similar notation is
    required in the case of accused persons who engage in misconduct while on
    release.

[44]

Second,
    under the criminal record exclusion, a show cause hearing is required to give
    the justice of the peace an opportunity to make the written endorsement. The
    misconduct on release exclusion contemplates that no show cause hearing may
    ever occur, as the burden is on the accused to bring a show cause hearing or
    remain in detention.

[45]

In
    my view, the distinct exclusions set out in s. 719(3.1) are consistent with the
    overall scheme put in place by the
TISA
amendments.

(c)

Parliaments Intention

[46]

Parliaments
    intention in enacting the
TISA
amendments supports the
Chambers
interpretation of ss. 719(3.1) and 524(8). As Strathy J.A. observed in
R.
    v.

Safarzadeh-Markhali
, 2014 ONCA 627, 122 O.R. (3d) 97, leave to
    appeal allowed, [2014] S.C.C.A. No. 489, at paras. 53-55:

The
TISA
reflected Parliaments concern that sentences
    were too lenient, that allowances for pre-sentence custody were overly generous
    and that the method of calculating sentences was opaque and failed to explain
    how credit was being given for time spent in custody prior to sentence: see
Summers
,
    at paras. 52, 53;
Carvery
(NSCA), at para. 83.

Another concern was that some accused persons were gaming the
    system, by deliberately prolonging their time in pre-sentence custody, in
    order to increase the credit they received, thereby reducing the overall length
    of the custodial part of their sentences. With credit for pre-sentence custody
    limited to 1.5:1, or even more so for 1:1, there would be no incentive for an
    accused to prolong the time spent in pre-sentence custody.

Another objective of the legislation  was to enhance public
    safety by keeping repeat offenders and those who violated their bail conditions
    in custody for longer periods, thereby punishing them for their conduct and
    making rehabilitative programs available to them while in jail. [See, also,
Summers
,
    at paras. 4, 51-58.]

[47]

Parliaments
    purposes in enacting the
TISA
suggest the
McDougall
interpretation is inconsistent with Parliaments intention.

[48]

The
McDougall
interpretation would permit accused persons to game the
    system by repeatedly consenting to detention and delaying any show cause
    hearing. This deliberate delay would preserve their eligibility for enhanced
    credit. As Bauman C.J.B.C. commented in
Chambers
: to suggest that by
    the simple expedient of consenting to remand, an accused can take himself or
    herself beyond the reach of s. 719(3.1) invites the kind of manipulation by
    accused persons that the
TISA
amendments are generally directed
    against (at para. 51). Under the
Chambers
interpretation, there is no
    incentive for an accused to delay seeking a show cause hearing or to consent to
    detention to preserve eligibility for enhanced credit.

[49]

The
McDougall
interpretation would also weaken Parliaments attempt at
    improving transparency in calculating sentences, as the ability of an accused
    person to avoid being included in the categories of offenders targeted by
    Parliament reduces transparency.

[50]

Similarly,
    allowing an accused who has breached his or her bail conditions or committed an
    indictable offence while on release to determine his or her own eligibility for
    enhanced credit would undermine Parliaments objective to keep these
    individuals in custody for longer periods.

[51]

The
    ordinary meaning of the relevant provisions and Parliaments purpose in enacting
    them militate against the
McDougall
interpretation favoured by the
    appellant, and, in my view, strongly favours the one adopted in
Chambers
and
Ibrahim
.

(2)

Consistency with
Summers

[52]

The
    sentencing judge in
McDougall
adopted the interpretation she believed
    was more consistent with the Supreme Courts reasoning in
Summers
. In
    my view, the reasoning in
Summers
does not assist the appellant.

[53]

First,
    the sentencing judge in
McDougall
analogized from the reasoning in
Summers
that if Parliament had intended to limit the circumstances justifying enhanced
    credit, it would have done so expressly: see
Summers
, at paras. 55-57.
    She concluded that if Parliament intended to give an interpretation to s.
    524(8) that would alter the long-standing understanding and practise of
    allowing accused persons whose bail was revoked to apply for enhanced credit,
    Parliament would have amended the bail provisions (at para. 32).

[54]

With
    respect to the sentencing judge, in my view, Parliament was not required to
    amend the bail provisions. It amended the provisions dealing with enhanced
    credit and provided the express limitation that an accused will not be eligible
    for enhanced credit where he or she has been detained in custody under s.
    524(8). This case is distinguishable from
Summers
.

(3)

The Constitutionality Issue

[55]

The
    appellant does not challenge the constitutionality of this exclusion. As I have
    concluded the exclusion is not ambiguous, it is unnecessary to resort to the
    interpretive principle that where a statutory provision is ambiguous, the
    interpretation more in line with the
Canadian Charter of Rights and
    Freedoms
is to be preferred.

F.

DISPOSITION

[56]

For
    the reasons above, I would dismiss the appeal.

Released: MT Sep 4, 2015

M. Tulloch J.A.

I agree. R.A. Blair
    J.A.

I agree. C.W.
    Hourigan J.A.


