



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Plante, 2018 ONCA 251

DATE: 20180315

DOCKET: C64248

Pardu, Benotto and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Robert Plante

Appellant

Lindsay Daviau, duty counsel for the appellant

Grace Choi, for the respondent

Heard: March 6, 2018

On appeal from the sentence imposed on August 1, 2017 by Regional
    Senior Justice Michelle Fuerst of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The
appellant fled from police at high speed. He
    pleaded guilty to one count of flight from police and another count of driving
    while disqualified. The sentencing judge concluded that a two year sentence
    less credit on a one for one basis for presentence custody was appropriate. The
    appellant submits that the sentencing judge erred in failing to credit his
    pretrial custody of 283 days on an enhanced 1.5:1 ratio (424.5 days) against
    the sentence imposed.

[2]

The
sentencing judge refused this enhanced credit,
    deducting only the actual pretrial custody served:

I have considered
    the defence request that Mr. Plante receive enhanced credit for his presentence
    in custody. On five previous occasions Mr. Plante was a statutory release
    violator. I conclude that he is not a candidate for parole or early release. I
    have not been provided with information about overcrowding at the detention
    centre or other conditions that might have made Mr. Plantes presentence
    detention more onerous. The defence has not met its onus to demonstrate that
    enhanced credit should be awarded for the presentence in custody.

[3]

The appellant has a lengthy criminal record and
    has been sentenced to federal penitentiary terms on multiple occasions. While
    his record indicates that he has violated the terms of his statutory release
    for these sentences, there was no evidence of the nature of those violations,
    which could have amounted to anything from being out past a curfew, consumption
    of alcohol, or serious additional criminal activity. Federal corrections
    authorities may revoke statutory release given to an offender serving time in a
    penitentiary for a breach or apprehended breach of a condition of his release.
    Section 135(1) of the
Corrections and Conditional Release Act
, S.C. 1992, c. 20, provides:

135

(1)
A member of the Board or a person, designated by name or by position, by the
    Chairperson of the Board or by the Commissioner, when an offender breaches a
    condition of parole or statutory release or when the member or person is
    satisfied that it is necessary and reasonable to suspend the parole or
    statutory release in order to prevent a breach of any condition thereof or to
    protect society, may, by warrant,

(a)
suspend the parole or statutory release;

(b)
authorize the apprehension of the offender; and

(c)
authorize the recommitment of the offender to custody until the
    suspension is cancelled, the parole or statutory release is terminated or
    revoked or the sentence of the offender has expired according to law.

[4]

The sentencing judge imposed a sentence of less
    than two years, meaning that it would be served in a provincial institution,
    and the provincial regime governing parole and early release (or earned
    remission) would apply. As noted in
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575,
at para. 24, [p]rovincial inmates are entitled to earned
    remission, absent bad conduct, credited at 15 days
per
month as calculated under the

Federal
Prisons and Reformatories Act
, R.S.C. 1985, c. P-20, s. 6 (incorporated by reference to Ontario
    reformatories by ss. 28 and 28.1 of the
Ministry of

Correctional
    Services Act
, R.S.O. 1990, c. M.22
) and further, at para. 25, [i]n practice, the vast majority of
    those serving reformatory sentences are released on remissionat approximately
    the two-thirds point in their sentence (citation omitted).

[5]

Section 32(2)(4) of R.R.O. 1990, Reg. 778, the
    general regulation under the
Ministry of

Correctional
    Services Act
, provides that where a provincial inmate has
    committed a misconduct of a serious nature, the Superintendent may impose
    forfeiture of a portion or all of the remission that stands to the inmates
    credit but no such forfeiture shall exceed 15 days without the Ministers
    approval. The definition of misconduct generally encompasses misbehavior
    within the institution (s. 29(1)).

[6]

This earned remission is different from parole,
    which s. 41 of the regulation provides may be granted after one third of a sentence
    has been served. In deciding whether an inmate is suitable to be granted
    parole, the Ontario Parole Board may consider any information it considers
    useful and relevant regarding the character, abilities and prospects of the
    inmate, including particulars of the trial, conviction and sentence, criminal
    record, background and living conditions, rehabilitative progress in the
    institution and medical information (s. 44).

[7]

A prisoner who is sentenced to 18 months jail,
    but does not obtain parole is released after 12 months because of earned remission,
    unless institutional misconduct results in forfeiture of remission. Twelve
    months of presentence custody is equivalent to an 18 month sentence in these
    circumstances. According to
Summers
, this
    differential alone justifies enhanced credit at a ratio of 1.5:1.

[8]

As pointed out in
Summers
, at para. 27, enhanced credit at 1.5:1 ensures that an offender
    who is released after serving two thirds of his sentence serves the same amount
    of time in jail, whether or not he is subject to pre-sentence detention and
    further, at para. 71, 
the loss of early release,
    taken alone
, will generally be a sufficient basis to
    award credit at the rate of 1.5:1,
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 offenders bad
    conduct, or the offender is likely to obtain
neither
early release nor parole (emphasis added).

[9]

We agree that the appellant was, because of his
    criminal record, unlikely to obtain parole.  The issue is whether he would be
    eligible for earned remission, which would result in his release after serving
    two thirds of his sentence.

[10]

The sentencing judge was wrong to equate
    re-committal for violation of the terms of statutory release under the federal
    system with misconduct while serving a sentence within a provincial institution
    which would lead to a loss of earned remission under the provincial system.
    There was no evidence here of institutional misconduct which would likely lead
    to a prolongation of the appellants incarceration past the two thirds mark of
    his sentence. This was an error in principle that had an impact on the sentence
    (
R. v. Lacasse
,

2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44). The sentencing
    judge did not have the benefit of the arguments made on appeal.

[11]

As indicated in
Summers
, at para. 79: 

Generally
    speaking, the fact that pre-sentence detention has occurred will usually be sufficient
    to give rise to an inference that the offender has lost eligibility for parole or
    early release, justifying enhanced credit. Of course, the Crown may respond by
    challenging such an inference. There will be particularly dangerous offenders
    who have committed certain serious offences for whom early release and parole
    are simply not available. Similarly, if the accuseds conduct in jail suggests
    that he is unlikely to be granted early release or parole, the judge may be
    justified in withholding enhanced credit.

[12]

We would accordingly reduce the global sentence
    of one year and 82 days by a further 142 days, resulting in a total sentence of
    305 days, which we allocate 200 days to the flight charge on count 2, and 105
    days consecutive to the driving while disqualified charge on count 3. In all
    other respects the decision of the sentencing judge is confirmed.

G.
    Pardu J.A.

M.L.
    Benotto J.A.

I.V.B.
    Nordheimer J.A.


