



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Slack, 2015 ONCA 94

DATE: 20150211

DOCKET: C58220

Cronk, LaForme and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andre OMar Slack

Appellant

Erika Chozik, for the appellant

Cate Martell, for the respondent

Heard: October 21, 2014

On appeal from the sentences imposed on April 25, 2013 by
    Justice M.L. Benotto of the Superior Court of Justice, sitting without a jury.

Cronk J.A.:

Introduction

[1]

Following a trial by judge alone, the appellant was convicted of a
    series of weapons-related offences, including possession of a loaded restricted
    firearm, contrary to s. 95(1) of the
Criminal Code
, and unauthorized
    possession of a firearm, contrary to s. 91(1) of the
Criminal Code
. 
    He was also found in breach of the terms of his probation.  The appellants s.
    91(1) conviction was stayed in accordance with
R. v. Kienapple
, [1975]
    1 S.C.R. 729.

[2]

The appellant was sentenced to eight years imprisonment for his
    weapons-related convictions and two years imprisonment for his breaches of
    probation, less credit at the rate of 1:1 for 433 days of pre-sentence
    custody.  He now appeals against his sentences.

[3]

The sentencing judge recognized that enhanced credit for pre-sentence
    custody at a rate of up to 1.5:1 may be granted in a proper case in order to
    achieve what she termed a fair and just sentence.  She reviewed the
    conditions of the appellants pre-sentence detention and his conduct while
    detained, and referenced this courts holding in
R. v. Summers
, 2013
    ONCA 147, 114 O.R. (3d) 641, affd 2014 SCC 26, [2014] 1 S.C.R. 575, that loss
    of eligibility for early release constitutes circumstances that may justify
    enhanced credit for pre-sentence custody.

[4]

However, based on the appellants institutional conduct, the sentencing
    judge declined to grant enhanced credit for his pre-sentence custody.  She
    reasoned as follows:

I now turn to the issue of enhanced credit.  As of April 5,
    2013  I have not done the calculation to date  Mr. Slack has spent 433 days
    in custody.  During that time, he had 26 days alone in his cell, 369 days with
    one cellmate and 38 days with two cellmates.  In addition, he has had slightly
    less than the average time outside.  The average time was 59% of the days and
    he was outside for 54%.  There were 9 full day lock downs during his time in
    custody.

As stated in
R. v. Summers
, a court is justified in
    granting credit of up to [1:1.5] days in order to achieve a fair and just
    sanction.

The difficulty here is that Mr. Slack has three misconducts in
    his record during his time in custody: March 20th, 2012, March 12th, 2012 and
    October 31st, 2012.  Although the circumstances which could give rise to
    enhanced credit include ineligibility for remission and parole while in
    custody, the conduct during his custodial time, in my view has caused me not to
    grant the enhanced credit.  I do not consider enhanced credit necessary to
    [achieve] a fair sanction.

Grounds of Appeal

[5]

The appellant raises two grounds of appeal.  First, he submits that the
    sentencing judge erred by refusing to grant enhanced credit at the rate of 1.5:1
    for his pre-sentence custody.

[6]

Second, the appellant argues that the sentencing judge erred by using,
    as a sentencing floor, the five-year mandatory minimum sentence set out in s.
    95(2) of the
Criminal Code
, which this court held to be
    unconstitutional in the companion cases of
R. v. Nur
, 2013 ONCA 677, 117
    O.R. (3d) 401, leave to appeal to S.C.C. granted, [2014] S.C.C.A. No. 17, appeal
    heard and reserved November 7, 2014, and
R. v. Charles
, 2013 ONCA 681,
    117 O.R. (3d) 456, leave to appeal to S.C.C. granted, [2014] S.C.C.A. No. 18,
    appeal heard and reserved November 7, 2014.

Discussion

(1)

Credit for Pre-Sentence Custody

[7]

The appellant argues that the sentencing judge erred by refusing to
    grant enhanced credit for his pre-sentence custody based on minor institutional
    misconduct.  He submits that under the
Corrections and Conditional Release
    Act
, S.C. 1992, c. 20 (the 
CCRA
), parole becomes available to a
    federal inmate, like the appellant, after one-third of the sentence has been
    served (s. 120) and statutory release is available once two-thirds of the
    sentence has been served (s. 127(3)).  The appellant contends that the
    sentencing judges inference that his institutional misconduct would disentitle
    him from parole or, more importantly, statutory release, is unsustainable.

[8]

For the reasons that follow, I agree with this submission.

[9]

A sentencing judges decision whether to grant enhanced credit for
    pre-sentence custody is a discretionary matter.  It therefore attracts a high
    degree of deference from a reviewing court.  See for example,
R. v. Wust
,
    2000 SCC 18, [2000] 1 S.C.R. 455, at paras. 44-45.  In this case, however, it
    is my view that the sentencing judge erred in principle in determining the
    amount of credit to be accorded to the appellant for his pre-sentence custody. 
    Accordingly, the deference that would otherwise be accorded to her ruling on
    this issue is displaced.  I say this for the following reasons.

[10]

First,
    the sentencing judge did not have the benefit of the Supreme Courts decision
    in
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575.  That decision lays
    to rest any suggestion that the loss of eligibility for early release cannot,
    standing alone, warrant enhanced credit for pre-sentence custody.  Justice
    Karakatsanis, writing for a unanimous court, held, at para. 71, that enhanced
    credit for pre-sentence custody will generally be justified to account for the
    loss of early release, even if the conditions of detention are not particularly
    harsh, and parole is unlikely.  However, she also held, at para. 75, that: If
    it appears to a sentencing judge that an offender will be denied early release,
    there is no reason to assign enhanced credit for the meaningless lost
    opportunity.

[11]

Further,
    the fact of pre-sentence custody is generally sufficient to give rise to an
    inference that the offender has lost eligibility for parole or early release,
    thereby justifying enhanced credit.  It then falls to the Crown to challenge this
    inference, for example, by demonstrating that the offenders bad conduct while
    in jail renders it unlikely that he or she will be granted parole or early release:
Summers
at para. 79.  See also
R. v. Houlder
, 2014 ONCA 372,
    at para. 2.

[12]

In
    this case, the appellants pre-sentence custody gave rise to the inference that
    he had lost eligibility for parole or statutory release, thus justifying
    enhanced credit.  It therefore fell to the Crown to counter this inference by
    demonstrating that the appellants bad conduct while detained would disentitle
    him to parole or statutory release.

[13]

The
    appellants conduct during pre-sentence detention included three documented
    incidents of misconduct.  On one occasion, the appellant was charged with
    possession of contraband when the smell of marijuana was detected coming from
    his cell, which he occupied with another inmate.  No marijuana was found on the
    appellants person, and he was not seen using the drug.  The remaining two
    incidents involved a second charge of possession of contraband, and making a
    gross insult at another person.  There was no other evidence before the sentencing
    judge concerning the nature of or the circumstances surrounding these two incidents.

[14]

The
    sentencing judge denied enhanced credit for the appellants pre-sentence
    custody based solely on the evidence of the appellants institutional
    misconduct.  And it is here, with respect, that I conclude the sentencing judge
    fell into error.  In my view, given the nature of the thin record of
    institutional misconduct by the appellant, it cannot be said that the Crown
    demonstrated that the appellants institutional misconduct would disentitle him
    to parole or statutory release.

[15]

There
    is no dispute that enhanced credit for pre-sentence custody may be denied when detention
    was a result of an offenders bad conduct, or where it is likely that the
    offender will not obtain either early release or parole:
Summers
at
    para. 71.

[16]

However,
    unlike provincially-incarcerated offenders who earn statutory remission for
    good behaviour, under s. 127(3) of the
CCRA
, a federal offender is
    entitled to statutory release after he or she has served two-thirds of their
    sentence unless the National Parole Board makes a contrary order in accordance
    with the
CCRA
. The entitlement to statutory release is not
    discretionary, nor is it conferred by the Parole Board.  Further, the authority
    to deny statutory release is narrow: statutory release may be denied only where
    it is determined at a detention hearing that the offender, if released, is
    likely to commit an offence causing harm or death, a sexual offence involving a
    child, or a serious drug offence listed in Schedule II to the
CCRA
[1]
:
CCRA
ss. 129 and 130.

[17]

Furthermore,
    in contrast to the applicable regime for provincially-incarcerated inmates
    established in Ontario by s. 28(1) of the
Ministry of Correctional Services
    Act
, R.S.O. 1990, c. M.22 and s. 6 of the
Prisons and Reformatories
    Act
, R.S.C. 1985, c. P-20, under the
CCRA
loss of credit towards
    early release is not an identified sanction that may be imposed for
    institutional misconduct.  Rather, after being found guilty of a disciplinary
    offence, a federal offender is liable to one or more of the following
    punishments: 1) a warning; 2) a reprimand; 3) a loss of privileges; 4) a
    restitution order; 5) a fine; 6) performance of extra duties; and 7)
    segregation:
CCRA
, s. 44(1).

[18]

Thus,
    the
CCRA
does not contemplate the detention of a federally-incarcerated
    offender during his or her period of statutory release based only on minor
    institutional infractions.

[19]

In
    this case, the evidence of the appellants institutional misconduct did not
    reasonably support the inference that he would likely be denied parole or
    statutory release based on bad conduct.  The limited record before the
    sentencing judge concerning the appellants conduct in jail established only a
    minor instance of misconduct  the possession of marijuana based on the smell
    of that drug emanating from a cell occupied by the appellant with another
    offender.  Nothing in that incident or in the two other generally unparticularized
    incidents of misconduct established reasonable grounds to believe that the
    appellant, during the period of his statutory release, would commit an offence
    of the type envisaged under ss. 129 and 130 of the
CCRA
.  Nor was the
    loss of statutory release an available punishment for the appellants reported
    incidents of misconduct.

[20]

In
    short, the evidence of the appellants minor misconduct while in pre-sentence
    custody did not support the inference that his right to statutory release would
    or could be revoked.  As a result, the refusal of enhanced credit for the
    appellants pre-sentence custody on the ground of his institutional misconduct
    was unjustifiable and the sentencing judges denial of enhanced credit solely
    on this basis cannot stand.

(2)

Sentencing Floor

[21]

I
    turn now to the appellants submission that the sentencing judge erred by using
    the five-year mandatory minimum sentence set out in s. 95(2) of the
Criminal
    Code
as a sentencing floor.  I would reject this submission.

[22]

This
    courts decisions in
Nur
and
Charles
were released after the
    date of the sentencing hearing in this case.  In
Nur
, this court
    declared the mandatory three-year minimum sentence provided for under s. 95(2)(
a
)(i)
    of the
Criminal Code
for a first conviction  under s. 95(1) of no
    force or effect on the basis that the mandatory minimum in question
    unjustifiably violated s. 12 of the
Charter of Rights and Freedoms
. 
    In the companion case of
Charles
, the mandatory five-year sentence of
    imprisonment under s. 95(2)(
a
)(ii) of the
Criminal Code
for a
    second or subsequent conviction under s. 95(1) was struck down on the same
    basis.

[23]

Nothing
    in
Nur
or
Charles
displaces the developed sentencing range
    applicable to offenders convicted of a second or subsequent s. 95(1) offence. 
    Both
Nur
and
Charles
affirm that offenders convicted of
    truly criminal conduct in relation to firearms must receive exemplary sentences
    that emphasize deterrence and denunciation.

[24]

This
    is such a case.  This was the appellants second conviction for a s. 95(1)
    offence.  On his first conviction, he received a sentence of four years in jail
    for the possession charge and nine months in jail, consecutive, for breaching a
    prohibition order and recognizance.  The appellant has a lengthy criminal
    record, consisting of 18 prior criminal convictions, including convictions for
    using an imitation firearm in the commission of a robbery, assault, trafficking
    in a scheduled substance, breaching a firearm prohibition order, and possessing
    a prohibited or restricted firearm with readily accessible ammunition. 
    Moreover, at the time of the instant offences, the appellant was on probation
    and subject to an order prohibiting him from possessing a firearm or
    ammunition.

[25]

In
    addition, the appellant was in unauthorized possession of a loaded restricted
    firearm in circumstances that posed a real and immediate danger to the public. 
    The loaded firearm was readily accessible in an unlocked car, which the
    appellant abandoned, leaving the engine running, in a public parking lot during
    daylight hours.

[26]

Given
    the appellants serious and lengthy prior record, which included crimes of
    violence and multiple weapons-related offences, the serious nature of the
    predicate offences, and the four-year sentence of imprisonment imposed for his
    first s. 95(1) offence, the appellants conduct can only be viewed as falling
    at the true crime end of s. 95 offences discussed in
Nur
and
Charles
. 
    The offences at issue cried out for a substantial penitentiary sentence, higher
    than the sentence imposed for the appellants first s. 95(1) offence.

[27]

There
    were also several aggravating features that compelled a sentence closer to the
    high end of the range.  These included:

·

the firearm was loaded;

·

the firearm was found in an unlocked car in a public parking lot
    during the daytime.  The cars engine had been left running;

·

this was not merely a regulatory or licensing offence.  The
    appellant was not authorized to possess a firearm under any circumstances;

·

the appellant fled the scene when a police officer told him to
    move his car;

·

after abandoning the car, the appellant telephoned a friend, who
    had rented the car for him, and told her to report the car as stolen; and

·

the appellants criminal record, described above, reflects a
    consistent pattern of criminal conduct.

[28]

In
    all these circumstances, I see no basis for appellate interference with the
    eight-year jail sentence imposed by the sentencing judge for the appellants
    weapons-related convictions.  Given the circumstances of these offences and
    this offender, a sentence of eight years imprisonment was appropriate and
    within the applicable range even in the absence of the mandatory minimum.

Disposition

[29]

For
    the reasons given, I would allow the appellants sentence appeal in part, by
    setting aside the credit granted by the sentencing judge for the appellants
    pre-sentence custody and substituting in its stead enhanced credit at the rate
    of 1.5:1 for the appellants 433 days of pre-sentence custody.  In all other
    respects, I would dismiss the appeal.

Released:

FEB 11 2015                                    E.A.
    Cronk J.A.

EAC                                                I
    agree H.S. LaForme J.A.

I
    agree P. Lauwers J.A.





[1]
Schedule II to the
CCRA
sets out specific drug offences, prosecuted by
    indictment, including trafficking, importing and exporting, cultivation,
    possession of property obtained by certain crimes and the laundering of
    proceeds of specific crimes.


