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R. v. Carvery, 2012 NSCA 107 (CanLII)


[18]         The Supreme Court of Canada in R. v. Wust, 2000 SCC 18 (CanLII), 2000 SCC 18, approved of Justice Laskin’s explanation of the phenomenon in R. v. Rezaie, supra.  Arbour J. in Wust, for the Court, wrote:

[41]      To maintain that pre-sentencing custody can never be deemed punishment following conviction because the legal system does not punish innocent people is an exercise in semantics that does not acknowledge the reality of pre-sentencing custody so carefully delineated by Laskin J.A., in Rezaie, supra, and by Gary Trotter in his text, The Law of Bail in Canada (2nd ed. 1999), at p. 37:

Remand prisoners, as they are sometimes called, often spend their time awaiting trial in detention centres or local jails that are ill-suited to lengthy stays. As the Ouimet Report stressed, such institutions may restrict liberty more than many institutions which house the convicted. Due to overcrowding, inmate turnover and the problems of effectively implementing programs and recreation activities, serving time in such institutions can be quite onerous.

Therefore, while pre-trial detention is not intended as punishment when it is imposed, it is, in effect, deemed part of the punishment following the offender's conviction, by the operation of s. 719(3).  ...

[19]         Justice Arbour in Wust also endorsed the oft used 2:1 ratio for pre-sentence custody, while noting that it was not mandatory in every case:

[45]      In the past, many judges have given more or less two months credit for each month spent in pre-sentencing detention. This is entirely appropriate even though a different ratio could also be applied, for example if the accused has been detained prior to trial in an institution where he or she has had full access to educational, vocational and rehabilitation programs. The often applied ratio of 2:1 reflects not only the harshness of the detention due to the absence of programs, which may be more severe in some cases than in others, but reflects also the fact that none of the remission mechanisms contained in the Corrections and Conditional Release Act apply to that period of detention. “Dead time” is “real” time. The credit cannot and need not be determined by a rigid formula and is thus best left to the sentencing judge, who remains in the best position to carefully weigh all the factors which go toward the determination of the appropriate sentence, including the decision to credit the offender for any time spent in pre-sentencing custody.  [My Emphasis]

[20]         However, the granting of a 2:1 credit was by no means automatic.  Appellate courts consistently upheld the denial of credit where offenders had tried to delay proceedings or where otherwise undeserving of any credit beyond one to one.  Judge Green referred to some of the case law in R. v. Johnson, 2011 ONCJ 77 (CanLII), 2011 ONCJ 77:


[57]         With respect, I do not find that the arrangement of the subsections and the language used leads to a conclusion that Parliament intended judicial discretion would be limited to granting credit of 1.5:1 only in exceptional cases.  Parliament could have chosen any number of different drafting approaches.  It is not up to the courts to grade Parliament on either the wisdom or clarity of enactments.  It is patent by the number of cases that have disagreed on what these provisions mean, the intent of Parliament could have been made much clearer.  It falls to the courts to arrive at the correct interpretation of the legislation.

[58]         I have no hesitation in agreeing that the inter-relationship of subsections and the wisdom of giving meaning, if we can, to all of the words chosen by Parliament, are important interpretative tools.  I disagree that by interpreting “if the circumstances justify it” in subsection (3.1) to permit a judge to increase the credit for pre-sentence custody based on ‘non-exceptional’ factors, such as the potential impact of parole and loss of remission, creates any pressing discord with the previous subsection or renders s-s. (3) redundant.


[89]         The arguments presented by the Crown on appeal are the same ones made to the trial judge.  Judge Derrick thoroughly reviewed all of the information relevant to the issue of pre-sentence custody.  She found as a fact that the respondent did not try to drag out his remand to manipulate the system to try to obtain a benefit (para. 54).  In short, he did not try to “game” the system (para. 55).  Given the uncontradicted information before the trial judge, she was fully entitled to make these findings and conclude that the circumstances of loss of remission justified a fair calculation of 1.5 days for each day of pre-sentence custody.  I would dismiss this ground of appeal.

Jim O'Neil, LL.B.

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