



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Barnett, 2017 ONCA 897

DATE: 20171123

DOCKET: C62684

Doherty, LaForme, Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Antonio Barnett

Respondent

Davin Michael Garg for the appellant, Her Majesty the
    Queen

Mark C. Halfyard and Breana Vandebeek for the
    respondent, Antonio Barnett

Heard: August 17, 2017

On appeal from the sentence imposed on August 23, 2016 by
    Justice Michael Brown of the Superior Court of Justice.

Doherty and Rouleau JJ.A.:

A.

Overview

[1]

Antonio Barnett, the respondent, was arrested for robbery and related
    charges. While on bail prior to trial, he committed other offences for which he
    was detained in custody. At sentencing for the robbery charges, the judge gave
    the respondent credit for some of the pre-sentence custody accumulated
    following this detention.

[2]

The Crown seeks leave to appeal sentence, arguing that the sentencing
    judge erred in crediting the appellant with pre-sentence custody incurred following
    his detention for a later, unrelated offence. In the Crowns submission,
    neither ss. 719(3) and (3.1) nor s. 726.1 of the
Criminal Code
allow
    credit for pre-sentence custody on the robbery charge. It argued that credit
    for pre-sentence custody accumulated as a result of later charges cannot be
    used to reduce a sentence on an earlier set of charges for which bail was
    granted.

[3]

The fact pattern presented in this case is not uncommon. Accused persons
    who are in custody are often facing more than one set of charges. Different
    sets of charges will often be disposed of at different times by different trial
    judges. It is important that sentencing judges understand the extent to which
    the accuseds pre-sentence custody can be taken into account when imposing
    sentence in respect of one or the other of the sets of charges faced by the
    accused.

[4]

This court has considered sentence appeals arising out of the same or
    very similar circumstances as are presented in this case. The arguments on this
    appeal suggest that the prior decisions of the court have left some uncertainty
    as to when and how a trial judge may take into account a period of pre-sentence
    incarceration, and the interplay between ss. 719(3), (3.1), and 726.1. Because
    the situation arises with such regularity and impacts so directly on the
    liberty of the subject, we think it important that we clarify the manner in
    which trial judges can have regard to pre-sentence incarceration.

[5]

In these reasons, we will address the proper interpretation of ss.
    719(3), (3.1), and 726.1. As we will explain, ss. 719(3) and (3.1) were properly
    engaged in the circumstances of this case. The respondents pre-sentence
    custody was properly regarded as a result of both his robbery charge, and the
    later charges. We would therefore dismiss the appeal.

B.

Facts

[6]

On June 18, 2013, Mr. Barnett was arrested for robbery and assault
    (the first offences). He was released on bail the next day.

[7]

While on bail, Mr. Barnett committed the offence of procuring a
    person to provide sexual services (the second offence). He was arrested for
    that offence on October 10, 2014. He was denied bail for this second offence.
    Bail on the first offences was never revoked.

[8]

While in custody for this second offence, the respondent committed
    perjury (the third offence). He was arrested for this offence on December 3,
    2014, while in custody. He did not seek bail.

[9]

On April 27, 2016, after trial on the first offences, Mr. Barnett
    and his co-accused were convicted as joint principals of robbery and assault
    causing bodily harm.

[10]

Before
    his sentencing for these offences, Mr. Barnett pleaded guilty to the
    second offence on August 2, 2016. For that offence, he was sentenced to one day
    in jail in addition to 240 days of pre-sentence custody, credited at 360 days.

[11]

Three
    weeks later, on August 23, 2016, Mr. Barnett was sentenced for the first offences.
    At the sentencing hearing the parties agreed that, as of August 2, 2016, Mr. Barnett
    had accumulated 664 days of pre-sentence custody. After deducting the 240 days
    accounted for in the sentencing on the second offence, Mr. Barnett was
    left with 424 days of pre-sentence custody. The sentencing judge therefore sentenced
    him to one day in jail in addition to the 424 days of pre-sentence custody,
    credited at 629 days, for a total sentence of 630 days. This sentence is the subject
    of the present appeal.

[12]

Mr. Barnett
    later pleaded guilty to the third offence, perjury. For that offence, he was
    sentenced on January 4, 2017, to four and a half months in jail in addition to five
    months of pre-sentence custody (August 2, 2016  January 4, 2017), credited at seven
    and a half months.

C.

Decision below

[13]

At
    the sentencing for the first offences, the Crown argued that none of the time spent
    in custody following Mr. Barnetts arrest and denial of bail on the second
    offence was available to be credited against a sentence for the first offences.
    This was because Mr. Barnett had been awarded bail on the first offences
    and still faced outstanding charges for the third offence, perjury, for which he
    was also in custody.

[14]

The sentencing judge disagreed. The fact that the perjury
    charge was outstanding was irrelevant in his view. Relying on
R. v. Reid
,

[2005] O.J. No. 1790 (C.A.),
R.
    v. Tsai
(2005),
198 C.C.C.
    (3d) 533 (C.A.),

and
R. v. K.G.
,
2012 ONSC 3523, 101 W.C.B. (2d) 576, he concluded that the
    remaining 424 days of pre‑sentence custody could and should be credited
    to Mr. Barnett. The sentencing judge explained that Mr. Barnetts
    pre-sentence custody was relevant information that could be taken into account
    pursuant to s. 726.1. He found that Mr. Barnett was entitled to
    credit of 424 days of pre-sentence custody on an enhanced basis equivalent to 629
    days, at a rate of slightly less than 1.5:1.

D.

Issue

[15]

The
    sole issue on this appeal is whether the sentencing judge erred by granting
    credit for pre-sentence custody served following Mr. Barnetts arrest and
    denial of bail on the second offence.

E.

arguments

[16]

On
    appeal, the Crown argues that the trial judges reliance on s. 726.1 as
    the basis for crediting Mr. Barnett with the equivalent of 629 days of
    custody was an error. Relying on s. 726.1 circumvents ss. 719(3) and (3.1),
    while distorting the sentencing regime. In the circumstances of this case, granting
    credit for pre‑sentence custody served as a result of later unrelated
    charges amounted to allowing an accused to bank time contrary to
R. v.
    Wilson
, 2008 ONCA 510, 240 O.A.C. 59.

[17]

The
    Crown explains that the sentencing judges use of Mr. Barnetts pre‑sentence
    custody to reduce his sentence for the offences was not and could not be
    justified by ss. 719(3) and (3.1). Those sections provide that in order to
    be used in fashioning a sentence, time spent in custody must have been as a
    result of the offence for which the offender is being sentenced.

[18]

In
    the Crowns submission, all but two days of the pre-sentence custody at issue was
    as a result of the arrest and denial of bail on the second offence. Those two
    days were spent in custody on the first offences before Mr. Barnett was granted
    bail. The balance of the pre-sentence custody followed his arrest on the second
    offence and could only be used in fashioning the sentence for the second
    offence.

[19]

The
    Crown argues that it would be an error and improper to give credit for
    pre-sentence custody in sentencing on the first offences under s. 726.1
    when ss. 719(3) and (3.1) do not allow it.

[20]

In
    the result, the Crown submits that the sentence should be varied to 627 days of
    incarceration after giving a three day credit for the two days of pre-sentence
    custody to achieve the 630 day sentence. The Crown acknowledges that, had this
    sentence been imposed at the time, Mr. Barnett would have had 422 days of pre‑sentence
    custody remaining. This time would have been available to be applied as credit
    against the sentence imposed for the third offence, reducing it from 135 days
    to 0. It follows therefore that this court should order Mr. Barnetts
    re-incarceration for 492 days, i.e. the 627 day sentence less the 135 day
    sentence for the third offence that would not have been imposed but has already
    been served
[1]
.

F.

analysis

[21]

Sections
    719(3), (3.1), and 726.1 of the
Criminal Code
read as follows:

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.

719(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).

726.1  In determining the sentence, a court shall consider any
    relevant information placed before it, including any representations or
    submissions made by or on behalf of the prosecutor or the offender.

[22]

Before
    examining each provision, we will address the Crowns argument that the trial
    judge relied only on s. 726.1. We read the trial judges reasons as reflecting
    reliance on both ss. 726.1, and 719(3) and (3.1). He used both sections to
    support his conclusion that 424 days of Mr. Barnetts pre-sentence custody for
    the second offence could be applied in reduction of his sentence for the first
    offences. We reach that conclusion for two reasons.

[23]

First,
    the sentencing judge specifically referenced three cases in support of his
    decision. All three can be read as supporting the judges reliance on both s. 726.1
    and on ss. 719(3) and (3.1).
K.G
. involved the sentencing of an
    offender in circumstances somewhat analogous to those of the present case. The
    judge in that case determined that although the pre-sentence custody followed
    the offenders detention on a later set of charges, it was nonetheless
    available to be applied in reduction of the sentence for the earlier offence
    for which the offender was being sentenced. The judge found that the authority
    for this was found in both ss. 726.1 and 719(3):
K.G.
,
at para. 44.

[24]

The
    other cases the sentencing judge referred to were
Reid
and
Tsai
.
    In those cases, the court only referred to s. 726.1 as a basis for
    allowing credit to an offender for pre-sentence custody served following a
    later set of charges. At para. 50 of
Wilson
, this court explained
    that in those cases the time spent in pre-sentence custody could be attributed
    to the first set of offences. In other words, in both those cases, ss. 719(3)
    and (3.1) were an alternate basis available for allowing credit.

[25]

Second,
    the sentencing judge found that Mr. Barnett was entitled to credit for 424
    days in pre-trial custody. In other words, the pre-trial custody was more than
    a consideration under s. 726.1; it was credit that could be applied on a 1.5:1
    basis. This is the language and amount normally associated with ss. 719(3)
    and (3.1).

[26]

We
    turn now to the interpretation of ss. 719(3) and (3.1). The Crown maintains
    that these sections strictly limit a sentencing judges ability to take
    pre-sentence custody into account. Only pre-sentence custody served as a
    result of the offence or offences for which the offender is being sentenced
    can be applied as credit. In the Crowns submission, virtually all of Mr. Barnetts
    pre-sentence custody did not qualify as pre-sentence custody served as a
    result of the first offences because it was served following his arrest for
    the second offence.

[27]

We
    disagree. We do not read ss. 719(3) and (3.1) as limiting consideration of
    pre-sentence custody only with respect to the offence that was the immediate
    trigger of the detention. Rather, the court is to assess whether a sufficient link
    exists between the pre-sentence detention for which credit is sought and the offence
    or offences for which the offender is being sentenced so as to meet the as a
    result requirement of s. 719(3). Even where, as here, the detention
    followed a later charge, the circumstances may be such that this later
    detention can nonetheless be considered to be as a result of both the earlier
    and the triggering offences.

[28]

It
    would be artificial to restrict a sentencing judges ability to apply pre‑sentence
    custody to only those charges that are the immediate trigger of the detention. Judges
    are regularly called upon to sentence offenders who are facing different sets
    of charges and who obtained bail on the initial set of charges, but were
    remanded in custody on the later charges. In such cases, legitimate questions
    will arise as to whether the pre-sentence custody can be said to be as a
    result of each of the various charges the offender is facing. In many cases,
    common sense will dictate that the offender did not apply for, or was denied,
    bail on the second set of charges at least in part because of the totality of
    the charges outstanding, or because he had been on bail on the prior charges. In
    those circumstances, it does not stretch the language of s. 719(3) to describe
    the pre-sentence custody as being a result of both sets of charges.

[29]

The
    expression as a result of used in s. 719(3) has been given various interpretations.
    In
R. v. Wust
, 2000 SCC 18, [2000] S.C.J. No. 19, at para. 3, the
    Supreme Court of Canada referred to it as meaning in relation to an offence.
    In
R. v.

Mills
,
    1999 BCCA 159, [1999] B.C.J. No. 566, at para. 33, the British Columbia Court
    of Appeal considered whether the time spent in pre-sentence custody was on
    account of the offence.  In
R. v. MacDonald
, [1998] O.J. No. 2990
    (C.A.), at para. 65, this court viewed it as encompassing pre-sentence custody
    that was for the [...] offence: see also
R. v. Wilson
, 2010 BCCA 65,
    [2010] B.C.J. No. 231.  Finally, in
R. v. Thomas
, 2010 ONCA 662, 90
    W.C.B. (2d) 697, at para. 9, this court referred to the need to show a
    proven link between [the detention] and the charges.

[30]

What
    we draw from the case law is that ss. 719(3) and (3.1) require that there
    be some causal connection, a sufficient link or relation between the offence
    for which the offender is being sentenced and the pre-sentence custody. That
    relation or link can exist with more than one offence. It is not limited to the
    offence that directly triggered the detention, but will include offences that
    contributed to the denial of bail or, in the trial judges assessment, factored
    into the offenders decision to not seek bail on the charges that triggered the
    detention order.

[31]

There
    is no strict rule dictating what constitutes a sufficient link or relationship
    between the given charge and the pre-sentence custody so as to meet the as a
    result of standard. The sentencing judge will take into account relevant
    factors that might include the reasons for bail having been granted on the
    first set of offences and denied for the second set of offences; whether bail
    was sought on the later offences; whether there has been revocation of the bail
    on the first set of offences; the impact if any of the reverse onus provisions
    of ss. 515(6) or 522(2) of the
Criminal Code
; whether subsequent
    charges remain outstanding, have been withdrawn or stayed; the amount of
    pre-sentence custody accumulated; the nature and seriousness of the various
    charges; and the relationship, if any, that charges have to one another. In
    sum, the sentencing judge must be satisfied that the offences upon which he is
    sentencing the accused have some meaningful causative connection to the
    accuseds pre-sentence custody.

[32]

The
    inquiry into the connection between the charge on which an accused is being
    sentenced and the reasons for pre-sentence custody should not become
    complicated and unnecessarily adversarial. The Crown should acknowledge the
    connection if that connection is clear on a fair assessment of the situation. Defence
    counsel should also be allowed to advise the court of relevant matters such as
    the reasons bail was not sought in respect of subsequent charges. In some
    cases, the defence will have to call evidence to establish the necessary
    connection. A transcript of the reasons for detention may serve that purpose in
    some cases. Ultimately, where the connection between the custody and the charge
    on which the accused is being sentenced cannot be readily inferred from the
    circumstances, the onus will be on the accused to show that the connection
    exists and that s. 719(3) applies:
R. v. Perkins
, 2017 ONCA 152, at
    para. 32.

[33]

We
    do not agree with the Crown that our approach to ss. 719(3) and (3.1) is
    contrary to the majority opinion in
Wilson
,
in that it permits an accused to bank time spent in
    custody. In
Wilson
, the court was dealing with a situation in which the
    appellant sought credit for time he spent serving a sentence imposed on an
    unrelated conviction. The appellant had successfully appealed the conviction on
    that unrelated offence. He asked this court to reduce the sentence under appeal
    by treating the sentence served as a result of the wrongful conviction as being
    equivalent to pre-sentence custody. This court rejected the appeal on the basis
    that it would amount to allowing banking of time spent in custody. This court
    was not dealing with pre-sentence custody, but rather with time served following
    a totally unrelated conviction.

[34]

The
    interpretation of ss. 719(3) and (3.1) we propose better reflects that
    dead time is real time, as Arbour J. explained with reference to
    pre-sentence custody in
Wust
,

at para. 45. In other words,
    pre-sentence custody is jail and is to be perceived as such for sentencing
    purposes.

[35]

If
    the Crowns interpretation of ss. 719(3) and (3.1) is applied to this case,
    Mr. Barnett will have to be re-incarcerated for an additional 491 days.
    This despite his having served almost a year of pre-sentence custody while
    awaiting his trial on the first offences (and the second and third offences)
    and for which he will receive no credit
[2]
.

[36]

The
    Crowns position also produces results that seem arbitrary. On the Crowns
    analysis, the order in which Mr. Barnett committed his offences had a
    significant impact on the total amount of time he must spend in jail as a
    result of the offences. Had he committed the more serious charge (robbery)
    after he had been released on bail on the less serious charge (procuring), ss.
    719(3) and (3.1) would have been available to significantly reduce Mr.
    Barnetts sentence on the robbery charge. It is not apparent to us why the
    order in which the offences occurred should have such a potent impact on the
    total time he spends in custody on the charges.

[37]

This
    is not to say that all of an offenders time spent in custody must be available
    as credit for any given conviction. There will be cases when an offender has
    spent time in jail in excess of what should have been the case if the system
    had worked expeditiously and flawlessly and that time will not be available as
    a credit:
Wilson
at para. 43. This can occur, for example, where a
    conviction is set aside as in
Wilson
, where time is spent in pre-sentence
    custody but there is no conviction, or where the sentence imposed following
    conviction is less than the accumulated pre-sentence custody.

[38]

However,
    an interpretation of ss. 719(3) and (3.1) that reduces the likelihood of
    detention that ultimately proves to be unwarranted is to be favoured. As
    Iacobucci J. wrote in
R. v. Hall
, 2002 SCC 64, [2002] S.C.J. No. 65, at
    para. 47:

Liberty lost is never regained and can never be fully
    compensated for; therefore, where the potential exists for the loss of freedom
    for even a day, we, as a free and democratic society, must place the highest
    emphasis on ensuring that our system of justice minimizes the chances of an
    unwarranted denial of liberty.

[39]

The
    narrow interpretation of ss. 719(3) and (3.1) advanced by the Crown would,
    as in this case, lead to a significant increase in the situations in which an
    accused would not receive credit for time spent in custody prior to sentencing.
    In our view, that interpretation undermines the fairness of the sentencing
    process and does not advance any of the principles of sentencing.

[40]

We
    turn now to s. 726.1. The section is a statutory statement of the self‑evident
     the court should consider any relevant information in determining the fit
    sentence. An accuseds pre-sentence incarceration may be relevant
    information.

[41]

For
    example, assume an accused young offender is being sentenced. She has spent six
    months in custody prior to sentencing, but that custody is not as a result of
    the offences on which she is being sentenced. The trial judge hears evidence
    that the time spent in custody has caused a very real change in the accuseds
    attitude. She now understands the consequences of her actions and is determined
    to straighten herself out. The trial judge may determine that specific
    deterrence is the key principle of sentence in this particular case. In deciding
    whether specific deterrence requires further incarceration and, if so, how long
    the sentence should be, the trial judge is entitled to take the six months pre-sentence
    incarceration and its impact on the accused into account as a factor relevant to
    a determination of the proper sentence.

[42]

Section
    726.1 operates differently than ss. 719(3) and (3.1).  Section 726.1 may make
    pre-sentence incarceration a factor to be considered, along with other relevant
    factors, in determining the appropriate sentence. Sections 719(3) and (3.1) do
    not speak to the factors relevant to determining a fit sentence, but rather
    instruct as to the manner in which pre-sentence custody should be counted to
    mitigate what has been determined to be the appropriate sentence. As the two
    provisions operate very differently, trial judges should be careful to
    distinguish between the two when considering the impact of pre-sentence custody
    on the determination of the sentence to be imposed.

Application to this case

[43]

Based
    on the facts of this case, the sentencing judge properly viewed the detention as
    meeting the as a result of requirement of s. 719(3). The record discloses
    that bail on the second set of charges was sought but was refused, at least in
    part, due to Mr. Barnetts inability to provide an adequate surety. During oral
    argument before this court, the Crown conceded that the first set of offences
    had some link to the decision of the justice of the peace not to grant bail on
    the second offence. This refusal combined with other factors such as the significant
    length of the pre-sentence custody and the fact that the first offences related
    to the robbery were the most serious made it reasonable for the sentencing
    judge to view the inability to obtain bail on the second offence as being
    linked to or resulting at least in part from the first set of offences.

[44]

Further,
    contrary to the Crowns submissions, we do not consider that the sentencing
    judge is barred from applying pre-sentence custody to the first set of offences
    because Mr. Barnett did not seek to have his bail on those offences revoked.
    It would be a waste of court resources to require an offender to bring such an
    application. This is especially true in a case such as this, where bail was
    applied for and refused on the second set of charges. This is not to suggest
    that the Crown cannot, if so advised, seek such revocation particularly if it
    wants to trigger the operation of s. 719(3.1)
[3]
.

[45]

For
    similar reasons, an offenders failure to seek bail on the second set of charges
    does not necessarily bar the application of pre-sentence custody to the
    sentence for the first set of charges:
R. c. D. N.
, 2010 ONCA 168, 253
    C.C.C. (3d) 455. It is only one factor in the judges assessment of the as a
    result of requirement. Refusal of bail may well be inevitable in the
    circumstances of a given case. Requiring a fruitless application would only
    result in delay and a waste of resources.

[46]

A
    sentencing judges sentence is entitled to deference and, in our view, there is
    no basis to interfere with his decision to apply pre-sentence custody as he did
    in this case. It was open to him to do so based on a correct reading of ss. 719(3)
    and (3.1).

G.

Conclusion

[47]

On
    a final note, it is important that sentencing judges clearly record the amount
    of the pre-sentence custody applied in fashioning the sentence as the judge did
    in this case. This is to ensure that the court called upon to sentence the
    offender on later charges does not take the same pre-sentence custody into
    account a second time.

[48]

As
    a result, we would grant leave to appeal sentence but dismiss the sentence
    appeal.

Released: DD  NOV 23 2017


Doherty
    J.A.




Paul
    Rouleau J.A.



I
    agree H.S. LaForme J.A.






[1]
The Crowns calculation fails to account for the one day Mr. Barnett spent
    incarcerated pursuant to the sentence under appeal. Thus, if this court was to
    make an order for re-incarceration, it should be for 491 days.



[2]
The Crown maintains that although the 424 days of pre-trial custody were not
    available for credit on the first offences, 135 days could be used to reduce
    the sentence that he in fact served for the third offence. This would only
    result in a net loss of pre-sentence custody credit equal to 289 days (424-135).
    A more realistic calculation is that 90 days of pre-sentence custody would have
    been credited at 1.5:1 and would be sufficient to have eliminated the remaining
    135 days of the sentence he served on the third offence. This would result in Mr.
    Barnett having lost any benefit for pre-sentence custody equal to 334 days
    (424-90) which, at 1.5:1 equals 501 days.



[3]
The constitutionality of this statutory provision is at issue in appeals
    pending in this court:
R. v.

Hussain
(C62047) and
R. v.

Meads
(C63093).


