



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Passera, 2019 ONCA 527

DATE: 20190624

DOCKET: C63916

Doherty, Brown and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Deanna Passera

Appellant

Marianne Salih, for the appellant

Kevin Wilson, for the respondent

Ingrid Grant and Samara Secter, for the intervener
    Criminal Lawyers Association (Ontario)

Ian B. Kasper, for the intervener Canadian Civil
    Liberties Association

Emily R. Hill and Caitlyn Kasper, for the intervener
    Aboriginal Legal Services

Heard: October 22, 2018

On appeal from the sentence imposed by Justice Jennifer
    Woollcombe of the Superior Court of Justice on May 11, 2017, with reasons
    reported at 2017 ONSC 2799.

Doherty J.A.:


I



overview

[1]

The appellant was convicted after a trial by judge and jury of importing
    cocaine into Canada. At trial, she testified that she did not know the cocaine
    was in her luggage. The jury rejected her evidence and found her guilty. The
    appellant appeals only her sentence.

[2]

The sentencing judge found that the appellant acted as a willing drug
    courier. She acknowledged that the appellant had taken meaningful steps towards
    her rehabilitation by participating in various programs available at Vanier Centre
    for Women (Vanier) while she was being held in pre-sentence custody. The sentencing
    judge concluded, having regard to the circumstances of the offence and the
    offender, that a sentence of six years would be appropriate. The sentencing
    judge described a six-year sentence as at the low end of the six- to
    eight-year range established for first offenders who courier large amounts of
    cocaine into Canada.

[3]

The appellant had spent 992 days in custody at the time of sentencing.
    The sentencing judge, applying s. 719(3.1) of the
Criminal Code
,
    R.S.C., 1985, c. C-46, gave the appellant 1.5 days credit for each day spent
    in pre-sentence custody, yielding a credit of 1,488 days. In addition, the sentencing
    judge held that conditions at Vanier, in particular the many lockdowns while
    the appellant was incarcerated, merited some additional mitigation of the sentence.
    The sentencing judge fixed that mitigation at 90 days. For the purposes of this
    appeal, the credit of 1,488 days and the additional 90 days mitigation can be
    considered together as a 1,578-day credit for pre-sentence custody.

[4]

Having determined that six years was the appropriate sentence, the sentencing
    judge deducted the credit of 1,578 days given for pre-sentence custody from a
    six-year sentence (2,191 days). The deduction resulted in an actual sentence of
    613 days from the date of sentence. The sentencing judge endorsed the
    indictment in accordance with the requirements of s. 719(3.3), setting out the
    amount of time spent in pre-sentence custody, the credit given for pre-sentence
    custody, the term of imprisonment that would have been imposed but for pre-sentence
    custody, and the actual sentence imposed.

[5]

The appellant was at Vanier throughout her pre-sentence custody. Because
    she eventually received a sentence under two years, she remained at Vanier
    after she was sentenced. The vast majority of offenders are not incarcerated in
    the same institution before and after they are sentenced.

[6]

The appellant challenges the sentence on two fronts. First, she raises a
    constitutional challenge. The appellant submits that s. 719(1) and/or s.
    719(3.1) of the
Criminal Code
infringe s. 7 and/or s. 12 of the
Canadian
Charter of Rights and Freedoms
,
and cannot be justified under s. 1 of the
Charter
.
The appellant argues that s. 719(1), which provides
    that a sentence begins when it is imposed, and s. 719(3.1), which limits credit
    for pre-sentence custody to 1.5:1, effectively require the appellant to spend a
    significantly longer time in custody before she is
eligible for
    parole than would have been the case had she been on bail and received the six-year
    sentence the sentencing judge determined to be the appropriate sentence.

[7]

The appellant contends that this extended period of incarceration
    without eligibility for parole infringes on her liberty in a manner that is
    arbitrary, overbroad and grossly disproportionate. She also submits that, in
    some reasonably foreseeable circumstances, the increase in the time spent in
    custody before being eligible for parole will be so significant as to render
    the sentence imposed grossly disproportionate and contrary to s. 12.
[1]


[8]

Second, and assuming the constitutional argument fails, the appellant
    submits that the sentence imposed is unfit. The appellant submits that the sentencing
    judge incorrectly found that the appellant had failed to show any remorse or acknowledge
    her misconduct when, in fact, she had done both. The appellant contends that this
    misapprehension of material evidence justifies this courts intervention and a
    reduction of the sentence imposed by one year.

[9]

The Crown submits that the
Criminal Code
provisions are
    constitutional and relies, to a significant extent, on the reasons of the sentencing
    judge. The Crown further submits that although the sentencing judge did
    misapprehend the evidence about the appellants remorse, it had no effect on
    the determination of the appropriate sentence in the circumstances of the case.

[10]

I
    would dismiss the appeal. In respect of the constitutional argument, neither s.
    719(1) nor s. 719(3.1), separately or together, delay parole eligibility or
    require that offenders who are denied bail serve longer sentences than persons
    who have received bail. Neither section speaks to parole ineligibility. Parole
    ineligibility is governed by other legislation, none of which was challenged by
    the appellant.

[11]

With
    respect to the argument that the sentencing judge misapprehended the evidence,
    I am not satisfied that the sentencing judge made that error. I would not vary
    the sentence.


II



chronology of the trial proceedings

[12]

The
    appellant was arrested at Pearson International Airport in August 2014 in
    possession of almost two kilograms of cocaine. The appellant was not released
    on bail. By the time the appellant was convicted in August 2016, she had been
    in custody for two years. Counsel made their sentencing submissions in
    September 2016 and the sentencing judge adjourned the matter to November 1,
    2016 for sentencing.

[13]

Very shortly before the scheduled date for sentencing, the
    appellant served a notice of constitutional question, challenging the
    constitutionality of s. 719(3.1) of the
Criminal Code
. That challenge was amended shortly afterward to
    include s. 719(1).

[14]

The
eleventh-hour constitutional
    challenge extended the sentencing proceedings by almost seven months, to May
    2017. The appellant remained in custody having unsuccessfully brought a bail
    application in November 2016 and a
habeas corpus
application in
    February 2017.

[15]

On
    May 11, 2017, the sentencing judge dismissed the appellants constitutional
    challenge and imposed a sentence of 613 days (6 years (2,191 days) minus 1,578
    days (credit for pre-sentence custody)). The appellant was released on bail
    pending appeal in late June 2017, having served about 50 days of her sentence.
[2]



III



THE RELEVANT SENTENCE CALCULATIONS

[16]

A comparison of the sentence imposed on the appellant and a
    six-year sentence imposed on an offender who had received bail is central to
    this appeal. That comparison is set out in chart form below:



1.
The
          sentence that would have been imposed but for credit for pre-sentence custody

The appellant

6 years

The hypothetical offender on bail

6 years



2.
Credit for pre-sentence custody

1,578 days (992 x 1.5
          + 90)

0



3.
The
          actual sentence imposed

613 days (2,191 -
          1,578 days)

2,191 days (6 years)



4.
Parole
          eligibility

[at one-third of the
          sentence]

204 days (1/3 of 613)

730 days (1/3 of 6
          years)



5.
Time
          spent in custody before eligibility for parole

1,196 days (992 + 204)

730 days (1/3 of 6
          years)



6.
Statutory
          release or earned remission release

[at two-thirds of the
          sentence]

408 days (2/3 of 613)

1,460 days (2/3 of 6
          years)



7.Total time spent in
          custody before eligible for statutory release or release on earned remission

1,400 days (992 + 408)

1,460 days (2/3 of 6
          years)



8. Total time in
          custody or under warrant of committal until warrant expiry

[full sentence]

1,605 days (992 + 613)

2,191 days (six years)



[17]

As
    the chart demonstrates, for the purposes of statutory release or earned
    remission release date after two-thirds of the sentence, the appellant is in a
    slightly better position than the hypothetical offender who received a six-year
    sentence but was on bail throughout the process. The appellant is eligible for
    release slightly sooner because of the additional 90-day credit given by the sentencing
    judge on account of the conditions in Vanier during pre-sentence custody.

[18]

The
    appellant also spends some 600 days less either in custody or under the warrant
    of committal than does the hypothetical offender who received a six-year
    sentence but was on bail. Also, because the appellant receives a sentence of
    less than two years, if she is released on earned remission after two-thirds of
    that sentence, she will not be subject to any terms and conditions for the last
    third (204 days) of her sentence. The hypothetical offender would, if released
    on parole or statutory release from the penitentiary, be under the terms and
    conditions set by the Parole Board of Canada (the Parole Board) until the
    expiry of the full six years of the sentence.

[19]

The appellant does, however, by virtue of her pre-sentence custody,
    spend an additional 466 days,
[3]
or about 15.5 months, in custody before being eligible for parole. The
    disparity arises because the calculation of eligibility for parole under the
    various corrections statutes does not take into account pre-sentence custody.
    The longer the pre-sentence custody, the greater the disparity. Enhanced credit
    for pre-sentence custody reduces the disparity. However, the disparity could be
    eliminated by enhanced credit only if sentencing judges could grant credit on a
    3:1 basis. Credit is presently capped under s. 719(3.1) at 1.5 days for each
    day served in pre-sentence custody.

[20]

If
    credit at the rate of 3:1 were available, however, it would achieve parity in
    terms of parole eligibility only by putting the offender who had been held in
    custody throughout the process in a better position in terms of statutory
    release and warrant expiry dates than the offender who had received bail. For
    example, assume A and B both merit a six-year sentence for their offence. A has
    been on bail. B has been in pre-sentence custody for one year. If 3:1 credit is
    given to B for the pre-sentence custody, he will receive a sentence of three
    years. B will be eligible for parole after two years in custody (one year pre-sentence
    and one year post-sentence). A, who was on bail, will also be eligible for
    parole after serving two years. B, however, will be eligible for statutory
    release after serving three years (one year pre-sentence and two years
    post-sentence). A will have to wait four years. Bs warrant of committal will
    expire after four years (one year pre-sentence and three years post-sentence).
    As warrant will not expire for six years.

[21]

Parity
    in respect of all facets of conditional release between persons who were on
    bail and persons who were in custody cannot be achieved through the granting of
    enhanced credit for pre-sentence custody. Perfect parity can be achieved if the
    sentence runs from the date of incarceration on the charge, both for the
    purposes of fixing the length of the sentence and for the purpose of
    determining conditional release on the sentence. Under the present scheme, a
    sentencing judge cannot, absent statutory authority, backdate a sentence to the
    date of incarceration on the charge:
Criminal Code
, s.
719(1).


IV



sentencing and parole eligibility

[22]

The
    appellants submissions treat the determination of parole eligibility as part
    of the sentence determination. On that approach, when a sentence includes a
    term of imprisonment, the fitness of the sentence must have regard, not only to
    the length of the term imposed, but also to when and how the correctional
    authorities, acting under their separate statutory mandate, will consider and potentially
    grant some form of conditional release. The appellant contends that as part of
    imposing a fit sentence, the sentencing judge must look to ensure parity in
    terms of parole eligibility between persons held in custody prior to sentence
    and persons released on bail.

[23]

I
    agree that when a sentence involves a term of imprisonment, the sentencing
    process can be viewed as encompassing both the term imposed by the sentencing
    judge and the statutory provisions under which the sentence will be administered
    by correctional authorities after it is imposed. Together they describe and
    define the punishment imposed. However, although part of a single process, the
    determination and imposition of a fit sentence and the administration of that
    sentence after it is imposed are two distinct functions, performed by different
    entities, governed by different statutory regimes, and designed to serve
    different purposes:
R. v. Zinck
, 2003 SCC 6, [2003] 1 S.C.R. 41, at
    para. 19. I do not agree with the appellants characterization of parole
    eligibility questions as a component of the determination of a fit sentence.

[24]

Sentencing
    judges are charged with imposing a fit sentence for the offence and the
    offender, having regard to concerns which include rehabilitation, deterrence
    and denunciation. Correctional authorities take the sentence as imposed and are
    responsible for administering that sentence. Sentence administration includes determining
    when and on what terms persons who are serving prison sentences should be
    permitted to serve some part of that sentence outside of the prison on
    conditions deemed appropriate by the correctional authorities. That assessment
    engages different considerations from those that influence the determination of
    an appropriate sentence. Decisions pertaining to conditional release are, by
    their very nature, predicated to a considerable degree on events that post-date
    the imposition of sentence.

(a)

The Sentencing Process

[25]

In
    fixing an appropriate sentence, sentencing judges are governed primarily by
    Part XXIII of the
Criminal Code
. Fundamentally, that regime aims to
    impose a sentence that is proportionate to the gravity of the offence and the
    degree of responsibility of the offender:
Criminal Code
, s. 718.1;
R.
    v. M. (C.A.)
, [1996] 1 S.C.R. 500, at para. 40. As recently
    explained by Moldaver J. in
R. v. Suter
, 2018 SCC 34, [2018] 2 S.C.R.
    496, at para. 4:

Sentencing is a highly individualized process. A delicate
    balancing of the various sentencing principles and objectives is called for, in
    line with the overriding principle that a sentence must be proportionate to
    the gravity of the offence and the degree of responsibility of the offender
    (s. 718.1 of the
Criminal Code
). Accordingly, there will be cases
    where the particular circumstances of the offence and/or the offender call for
    a sentence that falls outside of the normal sentencing range.

[26]

Subject
    to specific statutory exceptions (e.g. ss. 743.6 and 745.5), sentencing judges
    are not asked to determine parole eligibility when fixing an appropriate sentence.
    Questions relating to if, when, or how an offender might be released on some
    form of conditional release prior to the completion of the sentence are not for
    the sentencing judge to determine: see
Zinck
, at paras. 18-20;
Canada
    (Attorney General) v. Whaling
, 2014 SCC 20, [2014] 1 S.C.R. 392, at para.
    61. A sentencing judge cannot increase a sentence with a view to increasing the
    period of parole ineligibility or the period during which an offender would be
    subject to parole:
Zinck
, at para. 18;
R. v. Wilmott
, [1966]
    2 O.R. 654 (C.A.);
R. v. Holden
, [1963] 2 C.C.C. 394 (B.C.C.A.).

[27]

It
    would be equally wrong for a sentencing judge to impose a sentence that was less
    than the appropriate sentence for the offence and the offender because, in the sentencing
    judges view, the offender would be best served by being eligible for conditional
    release at some specific point in time. For example, some crimes, and cocaine
    importation is one, require a sentence that emphasizes denunciation and general
    deterrence. It would be an error in principle for a sentencing judge to ignore or
    undervalue those considerations and impose a sentence predicated entirely on
    the sentencing judges assessment that the offenders rehabilitation would be
    best served if that offender were eligible for parole at a certain date.

[28]

Although
    sentencing judges do not sentence based on parole eligibility considerations,
    pre-sentence custody on the charge is a significant factor to be considered in
    arriving at a fit sentence. Because sentences begin when imposed in the vast
    majority of cases under s. 719(1),
[4]
pre-sentence custody on the charge must be taken into account in arriving at an
    appropriate sentence:
Criminal Code
, s. 719(3).

[29]

Pre-sentence
    custody on a charge is taken into account, first and foremost because it would
    be fundamentally unfair to ignore the reality of pre-sentence incarceration. As
    succinctly observed in
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575,
    at para. 1: [a] day in jail should count as a day in jail. If a sentencing
    judge decides that a jail term is necessary and the offender has been in jail
    on that charge prior to sentencing, that pre-sentence custody must be treated
    as part of the offenders punishment for the purpose of fixing the appropriate length
    of the jail term:
R. v. Wust
, 2000 SCC 18, [2000] 1 S.C.R. 455, at
    para. 41;
R. v. McDonald
(1998), 40 O.R. (3d) 641 (C.A.), at pp. 657-58.

[30]

The
    sentencing jurisprudence has long recognized that in fixing a proper sentence, a
    sentencing judge will often be required to give credit on more than a 1:1 basis
    for pre-sentence custody. This enhanced credit for pre-sentence custody is
    justified on two grounds. First, pre-sentence custody is not taken into account
    by the correctional authorities in determining an offenders eligibility for
    conditional release after sentence is imposed. To take one example, offenders
    serving provincial sentences can earn up to 15 days remission per month on
    their sentence for good behaviour. Earned remission is not available to a
    person who is in custody prior to sentencing. Consequently, if the person who
    was in custody prior to sentencing receives only 1:1 credit for pre-sentence
    custody, that person is deprived of the benefit of earned remission. She
    potentially loses one half-day credit for each day served.

[31]

The
    second reason for giving enhanced credit has to do with the conditions in the
    jails where people are held pending trial. Often, the conditions are very
    difficult and there is no access to educational programs or other
    rehabilitative opportunities that are usually available in the institutions in
    which persons are confined after sentencing. Judges sometimes give credit for
    those difficult conditions: see
R. v. Rezaie
(1996), 31 O.R. (3d) 713,
    at p. 721;
Wust
, at paras. 44-45;
R. v. Summers
,
    2013 ONCA 147, 114 O.R. (3d) 641, at para. 37, affd, 2014 SCC 26, at paras.
    22-39;
R. v. Safarzadeh-Markhali
, 2016 SCC 14, [2016] 1 S.C.R. 180, at
    para. 1.

[32]

Prior
    to the enactment of s. 719(3.1), there was no cap on the amount of enhanced
    credit that sentencing judges could give for pre-sentence custody. In
Wust
,
    Arbour J. acknowledged that 2:1 credit was often given, but indicated that the
    credit given in any specific case depended on the particulars of the case and
    should not be determined by a rigid formula. She observed that in determining
    the credit to be given, sentencing judges have considered the offenders actual
    possibilities of conditional release and the conditions in which the pre-sentence
    custody had been served:
Wust
, at paras. 44-45.

[33]

Nothing
    in the sentencing jurisprudence prior to the enactment of s. 719(3.1) suggested
    that the imposition of a fit sentence required that the sentencing judge impose
    a sentence that would ensure an offender who had been held in custody throughout
    the process would not spend more time in custody before being eligible for
    parole than would an offender who had been on bail and received the equivalent sentence.
    Certainly, the 2:1 ratio specifically approved of in
Wust
would not achieve
    that parity. In fact, if the appropriate sentence was not a lengthy one and the
    offender had been in pre-sentence custody for any appreciable period of time, the
    sentencing judge could not possibly achieve that parity.

[34]

In
Summers
and its companion case,
R. v. Carvery
, 2014 SCC 27,
    [2014] 1 S.C.R. 605, the Supreme Court of Canada revisited credit for pre-sentence
    custody in the context of the recently enacted s. 719(3.1), which had capped
    credit for pre-sentence custody at 1.5 days for every day spent in custody.
Summers
and
Carvery
re
affirmed the case-by-case approach to the
    quantification of credit for pre-sentence custody articulated in
Wust
.
    Those cases also identified the same rationales for enhanced pre-sentence
    custody as had been identified in
Wust
:
Summers
, at paras.
    20-31, 75.

[35]

In
    holding that enhanced credit for pre-sentence custody was justified, in part
    because pre-sentence custody did not count towards eligibility for conditional
    release after sentencing, the court made it clear that an offenders bail
    status during the criminal process was irrelevant to the determination of the
    appropriate sentence. Offenders could not be sentenced more severely because
    they had been denied bail:
Summers
, at paras. 60-65.

[36]

In
Summers
, Karakatsanis J., speaking
    for the court, explained that
the ability to grant 1.5 days credit
    for each day served in pre-sentence custody meant that offenders who had not
    received bail would not spend more time in custody before reaching their
    statutory release/earned remission release date than would prisoners who
    received the equivalent sentence but had been on bail throughout the process. Parity,
    the linchpin of the appellants argument in this case, was achieved, but only
    at the two-thirds point of the sentence imposed.

[37]

Almost
    all offenders in both the federal and provincial systems are released at or before
    the two-third mark of their sentences:
Summers
, at paras. 25-27. At
    the same time, the court understood that the 1.5:1 ratio would not put
    offenders who had been held in custody prior to sentencing in the same position
    as persons who had received bail insofar as parole eligibility at the one-third
    mark of the sentence was concerned. The court said in
Carvery
, at
    para. 21:

Credit at a rate of 1.5 to 1 does not allow the respondent to
    derive a benefit from the delay, unless he ultimately does not qualify for
    early release. Indeed, while that rate compensates for loss of early release,
    if the respondent were to be paroled at any time before the 2/3 mark of his
    sentence, he would end up spending more time in jail because of the delay,
    notwithstanding the enhanced credit.

[38]

Neither
Summers
nor
Carvery
addressed the constitutional issues raised
    here. Both involved the statutory interpretation of s. 719(3.1), and not the
    constitutionality of the provision. The two cases, however, recognize that the
    unavailability of credit towards eligibility for conditional release in respect
    of pre-sentence custody is an important consideration in fixing the quantum of
    credit that should be given for pre-sentence custody. Further, both cases leave
    no doubt that a proper evaluation of credit for pre-sentence custody is an
    integral and essential step in arriving at a fit and just sentence.

[39]

The
    analyses in
Summers
and
Carvery
, however, offer no support for
    the assertion that the kind of parity advocated for by the appellant has been
    recognized as a principle of sentencing integral to the imposition of a fit sentence,
    much less a constitutionally-mandated imperative. Both before and after the
    enactment of the 1.5:1 cap in s. 719(3.1), the Supreme Court has insisted on a
    case-by-case approach to the determination of the credit to be given for pre-sentence
    custody. Certainly, judges must be alive to the reality that pre-sentence
    custody does not count towards early conditional release, and must take that
    reality into account. However, in doing so as part of the process of formulating
    a proper sentence, the jurisprudence has never looked to the parity urged by
    the appellant as necessary to the imposition of a fit sentence.

[40]

As
    outlined above, pre-sentence custody is relevant in determining the appropriate
    sentence because of its impact on eligibility for conditional release and sometimes
    because of the conditions endured by the offender during that pre-sentence
    custody. There is a third indirect, but nonetheless important, way in which pre-sentence
    custody can have a significant impact on the sentence imposed. Sometimes, persons
    who are in pre-sentence custody have the opportunity to take advantage of
    various programs and other rehabilitative measures. If they do so, those
    persons may make positive lifestyle changes and provide valuable insight for
    the sentencing judge into their rehabilitative prospects.

[41]

Sentencing
    judges must have regard to the circumstances of the offenders as they exist at
    the time of sentencing. If an offender, while in pre-sentence custody, has
    taken positive steps to change her life and demonstrated significant rehabilitative
    potential, the sentencing judge must take that development into account, not by
    way of calculating some additional credit for pre-sentence custody, but
    instead by imposing a lower, but still fit, sentence than would have been
    imposed had there been no
indicia
of the offenders positive rehabilitative
    prospects. For example, in this case, but for the appellants positive rehabilitative
    steps while in pre-sentence custody, the sentencing judge may well have concluded
    that something more than six years was the appropriate sentence.

[42]

The
    sentencing judges reasons demonstrate that she took the appellants pre-sentence
    custody into account in the three ways outlined above. She recognized that pre-sentence
    custody did not count towards eligibility for conditional release after
    sentencing and gave the appellant 1.5 days credit for each day served. This
    was the maximum credit available under s. 719(3.1) and ensured that the
    appellant would not be prejudiced by her pre-sentence custody insofar as her
    earned remission release date was concerned.

[43]

The
    sentencing judge also acknowledged that the difficult conditions of the
    appellants pre-sentence custody further mitigated the sentence. She quantified
    that mitigation at 90 days: see
R. v. Duncan
, 2016 ONCA 754, at para.
    6.

[44]

Finally,
    the sentencing judge expressly recognized the appellants rehabilitative progress
    while in custody prior to sentence as demonstrating meaningful and significant
    steps towards rehabilitation. That progress clearly mitigated the sentence that
    would otherwise have been imposed.

(b)

The Conditional
    Release Regime

[45]

Correctional
    authorities, including the Parole Board, administer sentences imposed by sentencing
    judges. In doing so, they are governed by various interlocking federal and
    provincial statutes. Sentence administration includes deciding questions
    concerning the conditional release of offenders while they are serving the sentence
    imposed by the sentencing judge. The legislation addresses both the timing of
    eligibility for conditional release and the granting of conditional release.

[46]

The
    grant of some form of conditional release by correctional authorities does not
    alter the sentence imposed by the sentencing judge. It does, however, permit
    the offender to serve part of the sentence imposed outside of a prison on the
    terms and conditions set by the Parole Board:
Cunningham v. Canada
,
    [1993] 2 S.C.R. 143, at pp. 150-51;
M.

(C.A.)
, at paras. 61-62;
Corrections and Conditional Release Act
, S.C. 1992, c. 20, s. 128(1)
    (
CCRA
). Nor are the provisions governing eligibility for and release
    on parole intended to restrict or otherwise shape the sentencing discretion
    given to sentencing judges under the
Criminal Code
. To so read the
    legislation is to allow the correctional tail to wag the sentencing dog:
M.
(C.A.)
, at para. 57.

[47]

Offenders
    who receive a sentence of two years or longer go to the penitentiary and are
    subject to the provisions in the
CCRA
. That Act describes four kinds
    of conditional release available to persons serving penitentiary sentences:

·

Temporary absence (
CCRA
, s. 115);

·

Day parole (
CCRA
, s. 119);

·

Full parole (
CCRA
, s. 120); and

·

Statutory release (
CCRA
, s. 127).

[48]

Eligibility
    for temporary absence and day parole are tied to the date at which an offender
    becomes eligible for full parole. For example, offenders are eligible for day
    parole a certain amount of time before they are eligible for full parole. Neither
    temporary absence nor day parole are available to a person serving a
    penitentiary sentence until that person has served at least six months:
CCRA
,
    ss. 115(1)(c), 119(1)(c).

[49]

The
    appellants constitutional argument focuses on the impact of pre-sentence
    custody on eligibility for full parole. I will not deal separately with the
    effect of pre-sentence custody on the availability of temporary absence or day
    parole. Suffice it to say that because those forms of conditional release are
    tied to the timing of eligibility for full parole, any prejudice suffered in
    respect of eligibility for full parole also prejudices the availability of temporary
    absence or day parole.

[50]

Full
    parole is generally available after an offender has served one-third of his
    sentence:
CCRA
, s. 120(1). However, for persons convicted of most
    offences, parole can be granted at any time during the sentence if the exceptional
    circumstances described in s. 121 of the
CCRA
exist
. Parole is discretionary. There is
    no right to parole. A person who is released on parole is allowed to live
    outside of the prison, but remains subject to any terms and conditions imposed
    by the Parole Board for the remainder of the offenders sentence. Parole can be
    suspended or terminated, in which case offenders are re-incarcerated to serve the
    sentence imposed by the sentencing judge:
CCRA
, ss. 135(1), 135(7),
    138(1).

[51]

For
    most sentences, the
CCRA
defines sentence as a sentence of
    imprisonment and calculates parole eligibility from the date the sentence was
    imposed:
CCRA
, ss. 2, 99, 120(1);
M.
(C.A.)
, at para.
    44. There are, however, exceptions to the general rule. For example, persons
    who receive a life sentence, other than as a minimum punishment, are eligible
    for parole after seven years. Calculation of the seven years runs from the date
    the offender is taken into custody on the charge:
CCRA
, s. 120(2);
M.
(C.A.)
,
at para. 45
.

[52]

A
    second exception applies to offenders who are subject to two or more sentences.
    Section 139(1) of the
CCRA
merges those sentences into one sentence for
    the purposes of determining eligibility for conditional release. Parole
    eligibility is calculated from the date of the first sentence: see
R. v.
    Middleton
, 2009 SCC 21, [2009] 1 S.C.R. 674, at paras. 29-33. For example,
    an offender who receives a four-year sentence and two years later while serving
    that sentence receives a consecutive two-year sentence for another offence, is
    treated under the
CCRA
for conditional release purposes as having been
    sentenced to six years on the date the first sentence was imposed. The offender
    is eligible for parole two years (one-third of six) from the date the first
    sentence was imposed. In this example, the offender is eligible for parole on
    the same day the offender is sentenced on the second offence.

[53]

Offenders who are not released on parole are released after serving
    two-thirds of their sentence.
Release at
    the two-thirds point is referred to as statutory release.
Those
    offenders are released under terms and conditions imposed by the Parole Board.
    They can be returned to custody if they breach those terms. Persons convicted
    of certain serious offences can, in specified circumstances, be ordered by the
    Parole Board to remain in custody for their entire sentences:
CCRA
, ss. 129-132.

[54]

The
    statistical data indicate that roughly 30 percent of federal prisoners are
    released on some form of conditional release before they have served two-thirds
    of their sentence and are eligible for statutory release. Most offenders are
    released on their statutory release date. Very few prisoners are held beyond
    their statutory release date: Public Safety Canada,
Corrections and Conditional Release: Statistical Overview
, 2017 Annual Report, (Ottawa: Public Works and
    Government Services Canada, 2018) at p. 80; Parole Board of Canada,
Performance Monitoring Report, 2017-2018
, at pp. 31, 96-98.

[55]

Offenders
    like the appellant who receive a sentence of less than two years are held in
    provincial institutions. The statutes governing the release of those prisoners
    prior to the completion of their sentence are an amalgam of federal and
    provincial legislation.

[56]

An
    offender serving less than two years is eligible for parole after serving
    one-third of the sentence: R.R.O. 1990, Reg. 778, s. 41(1). Parole
    can be granted at any time if there are compelling or exceptional circumstances:
    R.R.O. 1990, Reg. 778, s. 41(2). If the sentence imposed is less than six
    months, an offender may apply in writing for parole at any time:
[5]
R.R.O. 1990, Reg. 778, s. 42(1).

[57]

Parole
    decisions are made by the Ontario Parole Board. The criteria governing parole
    and the terms and conditions that can be imposed on persons released on parole
    mimic those available for federal offenders: see
CCRA
, ss. 101, 102,
    112, 113;
Ministry of Correctional Services Act
, R.S.O. 1990, c. M.22,
    ss. 31-41; R.R.O. 1990, Reg. 778, ss. 41-48; Kenneth W. Hogg & Brian G.
    Whitehead,
Guide to Ontarios Ministry of Correctional Services Act
, (Markham, ON: LexisNexis Canada, 2006
) at
    pp. 57-59.
[6]

[58]

Persons
    serving sentences of less than two years can earn remission on

those sentences through good behaviour.
    Remission can be credited at a maximum rate of 15 days for each month served.
    An offender who receives the maximum earned remission available will be
    released after serving two-thirds of the sentence:
Prisons and Reformatories
    Act
, R.S.C. 1985, c. P-20, s. 6. Release based on earned remission is the
    equivalent of statutory release for offenders who are serving sentences in the
    penitentiary. However, persons who are released based on earned remission are
    not subject to any terms or conditions after release. The vast majority of
    persons sentenced to less than two years are released at about the two-thirds
    point in their sentence:
Summers
, at para. 25.

[59]

The
    decisions made by correctional authorities relating to conditional release are
    based on many factors, including the nature and gravity of the offence, the
    degree of responsibility of the offender, and considerations relating both to
    the risk posed by the offender and the offenders rehabilitative prospects:
CCRA
,
    ss. 101-102. In making those decisions, the correctional authorities are
    guided by s. 100 of the
CCRA
:

The purpose of conditional release is to contribute to the
    maintenance of a just, peaceful and safe society by means of decisions on the
    timing and conditions of release that will best facilitate the rehabilitation
    of offenders and their reintegration into the community as law-abiding
    citizens.

[60]

Conditional
    release assessments take time. They must have regard to the length of the sentence
    imposed, the time remaining on the sentence, the offenders progress while in
    custody, various assessments made by correctional authorities, the offenders
    release plan, and any concerns in the community into which the offender may be
    released.

[61]

Conditional
    release assessments, by their nature, cannot be undertaken until the offender
    has been convicted and sentenced to a specific period of time in custody:
CCRA
,
    s. 102(a). Conditional release assessments also require that correctional
    authorities in the institution in which the offender is serving the sentence
    have an adequate opportunity to accumulate the necessary information, make the necessary
    assessments, and fashion the necessary release plan.

[62]

In
Zinck
, LeBel J. described conditional release assessments in this way,
    at para. 19:

Nevertheless, the
    decision-making process under the Act [CCRA] remains much different from the
    judicial determination of a fit sentence. It is largely based on the ongoing observation
    and assessment of the personality and behaviour of the offender during his or
    her incarceration,
which focuses on dangerousness and the
    offenders ability to re-enter the community. Such a process may extend over
    several years and lead to decisions that are highly attentive to context and
    based, at least in part, on what actually happened during the incarceration of
    the offender. [Emphasis added; citations omitted.]


V



the section 7 claim

[63]

Section
    7 reads:

Everyone has the right to life, liberty and security of the
    person and the right not to be deprived thereof except in accordance with the
    principles of fundamental justice.

[64]

Section
    7 is engaged if legislation deprives an individual of the right to liberty.
    Legislation that sets preconditions to applying for parole effectively determines
    parole ineligibility. In doing so, it deprives offenders serving sentences of
    an important residual liberty interest which is cognizable under s. 7:
R.
    v. Gamble
, [1988] 2 S.C.R. 595, at p. 645; see also
Cunningham
,
    at pp. 148-51;
M.

(C.A.)
,
at para. 62;

Whaling
, at paras. 60-62.

[65]

While
    I accept that the right to apply for parole, as opposed to the right to receive
    parole, is a contingent liberty interest, I cannot accept the respondents
    submission that it is so contingent as to be unworthy of s. 7 protection. As
    the statistics show, the opportunity to apply for parole translates into
    release from prison before the statutory release/earned remission date for many
    prisoners.

[66]

The appellant chose to
    challenge only ss. 719(1) and 719(3.1) of the
Criminal Code
. She did not challenge any part of the statutory
    framework that actually creates and controls eligibility for conditional
    release of persons serving jail sentences. The appellant put her claim in this
    way in the amended notice of constitutional question:

The effect of section
    719(1) and the cap on enhanced credit created by section 719(3.1) is to require
    an offender who is detained pending trial to serve a lengthier sentence than an
    identically situated offender who is released pending trial.

[67]

The
    appellant is wrong in asserting that the
Criminal Code
provisions require
    her to serve a lengthier sentence than an identically situated offender who is
    released on bail pending trial would serve. As outlined in the chart above
    (para. 16), the appellant actually serves almost 600 days less in custody or
    under the warrant of committal than does the hypothetical offender who was
    released on bail. The appellant does, however, spend considerably longer in
    custody before being eligible for parole. In my view, however, neither s.
    719(1) nor s. 719(3.1) are responsible for this result.

[68]

It
    is essential in the examination of a s. 7 claim to accurately identify the legislation
    responsible for the liberty infringement that is said to have occurred in a
    manner contrary to the principles of fundamental justice. The appellant says
    that the liberty interest reflected in her ability to apply for parole is
    infringed because her pre-sentence custody does not count towards parole
    eligibility. To evaluate this claim one must first ask what legislation is
    responsible for that state of affairs.

[69]

The
    appellant points to s. 719(1), which provides:

A sentence commences when it is imposed, except where a
    relevant enactment otherwise provides.

[70]

On
    its face, s. 719(1) has nothing to do with parole eligibility. As counsel
    observed, a similar section has been in the
Code
since its inception
    and long before the concept of parole even existed. Section 719(1) identifies
    the point in time at which a sentence imposed by a sentencing judge begins. Without
    s. 719(1), or some other starting date provision, neither the parties nor the sentencing
    judge could know the duration of the sentence actually imposed. It is difficult
    to envision a sentencing scheme that does not expressly provide for a starting
    point of the sentence. Subsection 719(1), sometimes referred to as a computing
    rule, simply identifies the point in time from which the sentence is to run
    for the purposes of the
Criminal Code
:
Wust
, at para. 23.

[71]

The
    appellant industriously traced the history of s. 719 and compared the section
    to sentencing provisions in other jurisdictions which define the starting point
    of sentences in different ways. The appellant submits that there is no policy
    purpose behind the starting point chosen in s. 719(1), and that other starting
    points could provide a more just and efficient sentencing process. The
    appellants submission may or may not be correct. With respect, I think it is irrelevant
    to whether s. 719(1) has anything to do with determining an offenders eligibility
    for parole.

[72]

Subsection
    719(1) says nothing about eligibility for parole. Nor does the section affect
    eligibility for parole. To the extent that the point at which a sentence commences
    for the purposes of the
Criminal Code
is relevant to determining
    eligibility for parole, that relevance flows from the definition of sentence
    and the provisions setting out the preconditions for parole in the
CCRA
and other corrections statutes. The fact that these provisions choose, for the
    most part, to use the starting point of the sentence as set down in s. 719(1)
    for the purposes of parole calculations does not mean that s. 719(1) defines the
    starting point of sentences for the purposes of the
CCRA
. The
    provisions of the
CCRA
do that.

[73]

The
CCRA
and other corrections statutes generally,
    but not exclusively, use the starting date of the sentence as imposed by the
    sentencing judge as the operative date for the purposes of calculating
    eligibility for conditional release on the sentence. For example, s. 120(1) of
    the
CCRA
, which governs eligibility for parole of persons serving
    penitentiary terms, provides that an offender cannot apply for parole until
    the day on which the offender has served a period of ineligibility of the lesser
    of one third of the sentence and seven years. Sentence is defined as a
    sentence of imprisonment:
CCRA
, ss.
    99, 2.

[74]

The limit on eligibility to apply for parole, the
    basis for the liberty infringement claim advanced by the appellant, flows
    directly from s. 120 of the
CCRA
(and similar related corrections statutes). Parole
    ineligibility as prescribed in s. 120 of the
CCRA
has nothing to do with s. 719(1) of the
Criminal
    Code
.

[75]

A
    consideration of s. 719(3.1) also compels the conclusion that it has nothing to
    do with fixing parole eligibility or ineligibility. Subsections 719(3) and
    719(3.1) read:

(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.

[76]

The
    purpose of both sections is to provide for, and limit, the extent to which pre-sentence
    custody can mitigate the length of a sentence imposed by a sentencing judge. Both
    sections are connected to the conditional release regime in the sense that they
    provide a mechanism by which a sentencing judge can alleviate the negative
    impact of the inapplicability of pre-sentence custody to the determination of
    eligibility for conditional release. The sections, however, have nothing to do
    with determining parole eligibility or ineligibility. Instead, the sections
    give the sentencing court the ability to take the operation of statutory
    provisions that do affect parole eligibility into account in structuring a fit
    sentence. The connection between s. 719(3.1) and the statutory regime governing
    conditional release of persons serving sentences is described in
Summer
s
,
    at para. 50:

Further, this structure builds resilience into the statutory
    scheme. For example, if Parliament were to amend the
Corrections and
    Conditional Release Act
,
so that pre-sentence custody counted for the purposes of parole eligibility and
    early release, s. 719(3.1) would only be called upon to account for situations
    of
qualitative
harshness, and an increased number of cases would fall
    solely under s. 719(3). The structure of the provision logically mirrors the
    rationales for credit and enhanced credit. [Emphasis in original. Footnotes
    omitted.]

[77]

The
    sentencing judge treated the constitutional challenge as engaging the combined
    effect of the
Criminal Code
provisions and the sections of the
CCRA
.
    With respect, I cannot agree with this approach for three reasons.

[78]

First,
    the appellant did not frame the challenge in that way in her application,
    although she did take that line of attack in her submissions before the sentencing
    judge. Second, for the reasons set out above, it is inaccurate to describe
    either s. 719(1) or s. 719(3.1) as having anything to do with determining
    eligibility or ineligibility for conditional release. More specifically, those
    sections have nothing to do with whether pre-sentence custody can be taken into
    account by the correctional authorities in making decisions with respect to
    parole and other forms of conditional release.

[79]

Third,
    the sentencing judges approach does not maintain the important distinction
    between the role of the sentencing judge and the role of the correctional
    authorities. Subsections 719(1) and 719(3.1) are tools to be used by the sentencing
    judge in determining the appropriate punishment for the offence and the
    offender. In wielding those tools, the sentencing judge will have regard to pre-sentence
    custody and the impact of that custody on parole eligibility. However,
    determinations with respect to the eligibility for parole and the granting of
    parole are not part of the sentencing judges duties or considerations. Those
    decisions are assigned to the correctional authorities, acting under an
    entirely different statutory regime. Parole-related decisions are, by their
    very nature, made at a very different stage of the punishment process and serve
    a very different purpose.

[80]

The
    purpose of the legislation challenged under s. 7 is a central feature of the
    constitutional analysis required by that section. Claims of arbitrariness and
    overbreadth turn largely on a proper identification of the purpose of the
    impugned legislation and a consideration of the connection between that purpose
    and the challenged effect of the legislation. Legislative purpose or objective is
    also important in any s. 1 analysis that may be required.

[81]

Because
    the appellant took aim at the wrong statutory provisions, the court heard
    little, if anything, about the purposes of the provisions in the corrections
    statutes that, generally speaking, limit parole eligibility to offenders who have
    served a certain portion of their sentence. Nor does the court have any
    evidence relevant to the connection, if any, between the purposes behind the provisions
    relating to parole eligibility and the absence of any consideration in those
    provisions of time spent in pre-sentence custody.

[82]

In
    its helpful factum, the Canadian Civil Liberties Association submits:

There is no penological purpose or doctrinal justification for
    not treating a day in jail prior to sentencing as one would if that day were served
    post-sentencing.

[83]

That
    submission is well supported by authority insofar as it applies to the
    sentencing judge when determining the length of the sentence to be imposed. It
    is not self-evident to me that the observation has equal application to
    correctional authorities fixed with the obligation of deciding whether an
    individual should be granted some form of conditional release so that she can
    serve part of the sentence outside of prison. As noted by LeBel J. at
    para. 19 in
Zinck
(reproduced above, at para. 61) parole
    decisions are based very much on ongoing observation and assessment of the
    personality and behaviour of the offender during his or her incarceration. Given
    the nature of the decision to be made by the correctional authorities and the
    purpose animating conditional release, there may well be sound penological and
    doctrinal reasons for distinguishing between pre- and post-sentence custody
    when considering parole eligibility.

[84]

It
    is not difficult, given the nature of conditional release decisions, the
    information which must be considered in making those decisions, and the
    criteria governing them, to understand from a practical perspective that there will
    almost inevitably be some passage of time between the date of sentencing and the
    consideration of the offenders suitability for conditional release. The
    present scheme reflects that reality. Whether it provides a constitutionally
    acceptable solution to that practical reality can only be determined when those
    sections are subject to constitutional challenge.

[85]

The
    s. 7 claim fails.


VI



The
    Section 12 Claim

[86]

The
    s. 12 claim fails for the same reasons as the s. 7 claim. The impugned sections
    of the
Criminal Code
do not increase the length of the sentence. As
    set out above, the sentence imposed on the appellant was actually shorter than
    it would have been but for her pre-sentence incarceration. Nor do the
Criminal
    Code
provisions require that the appellant spend a longer period of time
    in custody before being eligible for parole. As explained above, the time spent
    in custody before eligibility for parole is, with very few exceptions, the
    product of the provisions of the
CCRA
and related statutes.


VII



the fitness of the sentence

[87]

In
    the course of her reasons for sentence, the sentencing judge said:

I did not hear from Ms. Passera herself any acknowledgement of
    error on her part, or any expression that she was sorry for what she [has] done.
    While there is no doubt that she has worked hard on her own rehabilitation, I
    have not heard from her an indication that she appreciates the serious nature
    of her offence or the harm that it causes to the community.

[88]

The
    appellant contends that in a letter filed and read on sentencing she did
    acknowledge the offence, express remorse, and demonstrate an appreciation of
    the seriousness of her offence.

[89]

On
    my reading of the letter, the appellant does not acknowledge that she committed
    the crime, or indicate that she was sorry for her role in the crime. Nor did
    the appellant recognize the harm that crimes like cocaine importation do to the
    community. None of this is surprising, given that the appellant testified under
    oath that she did not know the cocaine was in her luggage.

[90]

I
    think the sentencing judge captured the essence of the appellants letter when
    she observed that the appellant has worked hard on her own rehabilitation.
    The sentencing judge clearly viewed this as a significant mitigating factor.

[91]

I
    hasten to add that while the sentencing judge observed that the appellant had
    not acknowledged her crime or the harm it caused to the community, the sentencing
    judge did not use this as an aggravating factor on sentence. She made these
    comments in the course of summarizing the appellants response to her
    predicament.

[92]

I
    see no material misapprehension of the evidence. In my view, the sentence
    imposed carefully balances the positive and negative features presented on
    sentencing. I would not interfere with the sentence.


VIII



conclusion

[93]

I
    would dismiss the appeal.

Released: DD JUN 24 2019

Doherty J.A.

I agree David Brown J.A.

I agree G.T. Trotter J.A.





[1]

The interveners all support the appellants position. The Criminal
    Lawyers Association (Ontario) and the Aboriginal Legal Services advance s. 7
    arguments. The Canadian Civil Liberties Association advances a s. 12
    argument.



[2]

The appellant was subsequently incarcerated on other unrelated
    charges.



[3]

The additional 90 days credit given for the lockdown
    conditions reduces this figure by about 30 days.



[4]
Consecutive sentences imposed under s. 718.3(4) are the most common exception.



[5]

Parole in the provincial system in Ontario is relatively rare.
    Over 90% of the provincial prisoners are serving sentences of less than six
    months. It may be that prisoners serving short sentences simply wait for their
    unconditional release after two-thirds of the sentence: A. Doob
et
    al.
, Zombie Parole: The Withering of Conditional Release
    in Canada: (2014) 61 Crim. L.Q. 301, at 324-25.



[6]

Persons serving sentences of under two years are eligible for
    temporary absence:
Prisons and Reformatories Act
, R.S.C. 1985, c. P-20, ss. 7-7.4. Any temporary absence over 72
    hours must be approved by the Ontario Parole Board. It does not appear that
    persons serving provincial sentences are eligible for day parole.


