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News and Views — Comment on R. v. Sawchuk

R. v. Sawchuk |  (WestlawNext Canada)
2014 CarswellSask 536 |  (Westlaw Canada)
Saskatchewan Court of Appeal

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Following the Supreme Court of Canada’s decision in R. v. Summers and R. v. Carvery, there have likely been more cases closely examining credit for pre-trial custody than at any previous point.  In those cases the Court found that new legislation regarding sentencing did not displace the long-held custom of enhanced credit where the accused is denied bail, although the ratio of the credit was reduced.  During the past several months appellate courts across the country have been forced to revisit sentences to bring them in line with these conclusions.  In R. v. Sawchuk, the Saskatchewan Court of Appeal considered a related sub-issue: the effect of non-compliance with certain requirements under the new 515(9.1) and 719(3.1) sections of the Criminal Code.  These sections state that if denial of bail for previous convictions is to limit the amount of credit for pre-trial custody, a notation in writing must be made in the course of the bail hearing.

The accused had pleaded guilty to sexual assault, and was sentenced to 30 months’ imprisonment.  Based on audio recordings of the show cause hearing, the sentencing judge felt it was clear he had been denied bail due to his criminal history.  On that basis, he had been considered ineligible for pre-trial credit beyond a 1:1 ratio.   As the Crown on appeal conceded, however, the requirements of s. 515(9.1) of the Criminal Code were not complied with.  That section, read in conjunction with s. 719(3.1), states that for an accused to be denied enhanced credit for pre-trial custody for previous convictions, the presiding authority must record this fact in writing. On appeal, the accused claimed that the lack of a written record should entitle him to enhanced credit. The Crown argued the accused had still clearly been detained for previous offences, and therefore enhanced credit should not be reconsidered.

The bulk of canvassed cases suggested that strict compliance with the written requirements was necessary.  Herauf J.A. examined in detail the Quebec Court of Appeal case R. c. Labrasseur, which upheld the written requirement as being more than a mere formality that could be dispensed with.  Several cases from disparate provinces considered in Labrasseur had reached the same conclusion, including R. v. Vittrekwa, R. v. Campbell and R. v. London .  In contrast, in the case R v. Nevills, the Ontario Court of Appeal had reached an opposite conclusion.  In that case, it had not been shown that the accused applied for bail.  The Court of appeal nevertheless upheld a finding that the accused should not be considered for enhanced credit beyond the 1:1 ratio.  In brief reasons the court found that it was entitled to consider circumstances as a whole, and that where an offender clearly met circumstances that precluded enhanced credit, the written requirement was not a strict requirement.

The Court found that the sentence itself was fit, but ruled in favour of the accused with respect to credit for pre-trial custody.  The written requirements had been newly added, and must have been intended to have meaning.  As there was no written record, the accused could be considered for enhanced credit.  Relying on Summers for the proposition that extensive evidence was not required to grant enhanced credit, the court allowed the appeal to the extent that a ratio of 1:1.5 should be used. 

A common thread in the Sawchuk and Summers/Cravery decisions lies in courts coming to rest upon an interpretation of parliament’s intent which coincided with the strict wording of the recent alterations to the Criminal Code.  In Summers, the Supreme Court found that parliament clearly intended to restrict amounts of pre-sentence credit, but found the intention was less clear regarding what circumstances justified enhanced credit.  Ultimately, it was decided it was “inconceivable that Parliament intended to overturn a principled and long-standing sentencing practice, without using explicit language, by instead relying on inferences…”.  In Sawchuk, the court found that parliament’s guiding principles of transparency in sentencing and credit were the main relevant considerations.  In neither case were less germane, more generalized notions such as “tough on crime” operative factors.  If the legislature is intent upon further changes to the sentencing regime, and wishes to avoid the sort of confusion which followed Summers/Cravery and subsequent cases, it may wish to keep this in mind. 
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