R. v. Mathieu

The question on which these four appeals turn is whether a sentence of imprisonment of less than two years is exactly that — a sentence of less than two years — within the meaning of the Criminal Code even where the judge would have imposed a penitentiary term but for the offender’s pre‑sentence custody (sometimes referred to as “pre‑trial custody”).

For the reasons that follow, I would answer this question in the affirmative. Accordingly, I would allow the appeal in Mathieu and dismiss the appeals in St‑Germain, Jin and Monière.

In these four cases, the offenders had all been detained for significant periods before being sentenced. Essentially for this reason, the judges imposed custodial sentences of less than two years and probation for three years, the maximum period allowed. But for the pre‑sentence custody, the judges would all have imposed penitentiary terms.

In Monière, the judge also imposed the period of parole ineligibility — one half of the sentence — provided for in s. 743.6(1.2) of the Criminal Code .

In my view, these appeals all involve prison sentences of less than two years within the meaning of the Criminal Code . It was therefore open to the judges to make the probation orders in question. For the same reason, s. 743.6(1.2) of the Code was not applicable. The parole ineligibility order made in Monière should therefore be set aside.

In short, I find that the term of imprisonment in each case is the term imposed by the judge at the time of sentence. The offender’s prior detention is merely one factor taken into account by the judge in determining that sentence. This conclusion is dictated by the relevant provisions of the Criminal Code , including subss. (1) and (3) of s. 719. It is also consistent with the presumption of innocence to which every accused, even if detained pending trial, is entitled until he or she is convicted. As we will see below, it is consistent as well with the sentencing objectives that are relevant here.

Although it is possible, on an exceptional basis, to treat the time spent in pre‑sentence custody as part of the term of imprisonment imposed at the time of sentence — in the context of a minimum sentence, for example, or of a conditional sentence — these are exceptions that prove the rule. As to minimum sentences, see R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18; regarding conditional sentences, see R. v. Fice, [2005] 1 S.C.R. 742, 2005 SCC 32.

II

The relevant provisions of the Criminal Code , R.S.C. 1985, c. C‑46 , read as follows:

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

. . .

(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.

(4) Notwithstanding subsection (1), a term of imprisonment, whether imposed by a trial court or the court appealed to, commences or shall be deemed to be resumed, as the case may be, on the day on which the convicted person is arrested and taken into custody under the sentence.

731. (1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission,

. . .

(b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order.

743.1 (1) Except where otherwise provided, a person who is sentenced to imprisonment for

. . .

(b) a term of two years or more . . .

shall be sentenced to imprisonment in a penitentiary.

743.6 . . .

(1.2) Notwithstanding section 120 of the Corrections and Conditional Release Act, where an offender receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life, on conviction for a terrorism offence or an offence under section 467.11, 467.12 or 467.13, the court shall order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less, unless the court is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence and the objectives of specific and general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act.

III

As already mentioned, the time spent in pre‑sentence custody is added to the term imposed at the time of sentence in determining whether an offender may be given a conditional sentence: Fice. However, as Hilton J.A. of the Quebec Court of Appeal observed in Jin ([2007] R.J.Q. 925, 2007 QCCA 541), the reasons of the majority in Fice apply only to conditional sentences. Bastarache J., writing for the majority in that case, was careful to make this point in the clearest possible terms:

. . . I must emphasize that the effect of pre‑sentence custody on the availability of a suspended sentence, a probation order, a discharge or a fine is an issue that is not before us in this appeal. Rather, this appeal is solely concerned with whether time spent in pre‑sentence custody ought to affect a sentencing judge’s determination of the range of sentence and therefore the availability of a conditional sentence. As noted by Lamer C.J. in Proulx, the conditional sentence was specifically enacted as a new sanction designed to reduce the use of prison as a sanction and to expand the use of restorative justice principles in sentencing (paras. 15 and 21). Given that the conditional sentence is a new sanction with a unique combination of objectives, it should not be automatically equated with other sentencing alternatives, such as a suspended sentence, a probation order, a discharge or a fine. Accordingly, it is my position that the relationship between pre‑sentence custody and the availability of a suspended sentence, a probation order, a discharge or a fine is an issue that is better left for another day. [Emphasis added; para. 42.]

That other day has now arrived. In seizing the moment, we need not reconsider either our decision in Fice or Justice Bastarache’s definition of its scope. However, insofar as my reasons in Fice are not inconsistent with the conclusion of the majority or the reasoning that supports it, I reiterate in the different context of this appeal what I wrote at the time, with the concurrence of Deschamps J.

According to the very words of s. 719(1) of the Criminal Code , “[a] sentence commences when it is imposed”, and s. 719(3) provides that “[i]n determining the sentence . . . a court may take into account any time spent in custody by the person as a result of the offence”. These sentencing principles apply without doubt to the making of a probation order.

As I stated in Fice:

Moreover, in concluding as it did in Wust, the Court emphasized the need, in interpreting the sentencing provisions of the Criminal Code , “to avoid absurd results by searching for internal coherence and consistency in the statute”. [para. 52]

The interpretation I propose on this appeal is consistent not only with subss. (1) and (3) of s. 719 (to which I shall presently return), but also with the other relevant provisions of the Criminal Code . I will mention only two of them here.

The first is s. 719(4) of the Code. Whereas s. 719(1) applies to offenders who are in custody at the time of sentencing, s. 719(4) extends the same principle to offenders who are not then detained. In virtue of s. 719(4), a term of imprisonment commences “on the day on which the convicted person is arrested and taken into custody under the sentence”. An accused detained pending trial or sentence is not “taken into custody under the sentence”. Pre‑sentence custody can thus hardly form part of a sentence that has not yet commenced.

The same conclusion flows from s. 743.1(1)(b), which provides that “a person who is sentenced to imprisonment for . . . a term of two years or more . . . shall be sentenced to imprisonment in a penitentiary”. No one has suggested that a sentence of less than two years should be served in a penitentiary if the judge would have imposed a term of two years or more in the absence of pre‑sentence custody.

I return now to s. 719(3), which, as I wrote in Fice,

[authorizes a] court that might otherwise have imposed a sentence of more than two years . . . to impose a sentence of less than two years where a longer term of imprisonment would be excessive, bearing in mind the time already spent in custody as a result of the offence. [para. 62]

I thus agree with Beauregard J.A. of the Court of Appeal in Monière that [translation] “pre‑sentence custody is not part of the sentence, but is only one factor taken into account by the judge in determining the sentence” ([2007] Q.J. No. 1539 (QL), 2007 QCCA 309, at para. 18). This means that a sentence of less than two years does not, for the purposes of s. 731(1)(b), become a sentence of more than two years simply because the trial judge, in imposing the sentence of less than two years, took into account the time already spent in custody as a result of the offence.

Moreover, it is not solely because of the law and s. 719 of the Code that pre‑sentence custody is taken into account as a factor in sentencing. This result can also be inferred from a conceptual interpretation of pre‑sentence custody. Pre‑sentence custody generally refers to custody before the verdict is rendered, at a time when the accused is presumed innocent. In the context that concerns us here, this custody is, in principle, preventive rather than punitive. Pre‑sentence custody cannot really be characterized as a “sentence”: if the accused is convicted, the judge does take it into account as a relevant factor in sentencing, but what if the accused is acquitted? Whether the pre‑sentence custody was part of a sentence for the purposes of the Code would thus fall to be determined retroactively in light of the verdict — a subsequent and separate event.

Manifestly, the words “imprisonment for a term not exceeding two years” used by Parliament in s. 731(1)(b) refer to the custodial term imposed at the time of sentence — the actual term of imprisonment imposed by the court after taking into account any time spent in pre‑sentence custody.

IV

This interpretation of the word “sentence” is also justified by the purpose of a probation order, namely to facilitate the offender’s rehabilitation: R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5. In this regard, I adopt the words of the British Columbia Court of Appeal in R. v. Goeujon (2006), 209 C.C.C. (3d) 61, 2006 BCCA 261:

The availability of a probation order depends on different factors. Probation is not intended to punish the offender so much as to rehabilitate the offender. Regardless of the gravity of the offence and the degree of responsibility of the offender, it may be that a particular offender who has spent time in pre‑sentence custody and deserves a sentence of imprisonment of two years may still benefit from the rehabilitative aspects of probation.

Probation orders may also be particularly useful for offenders who have served time in pre‑sentence custody. The reason that many judges give double credit for time served in pre‑sentence custody is that it is often served in difficult conditions in which rehabilitative programs are not available: see R. v. Rezaie (1996), 112 C.C.C. (3d) 97 (Ont. C.A.) at 104. An offender who has served time in pre‑sentence custody, without access to programs, would benefit from the imposition of probation upon release, whether such release takes place immediately at the time of sentencing or following a further sentence of imprisonment not exceeding two years. [paras. 49‑50]

The reasons of Beauregard J.A. of the Court of Appeal in St‑Germain are also particularly apt:

[translation] While a probation order may curtail the liberty of the accused, it is above all a way to test the accused and a way to protect society.

Parliament presumes that, if an accused serves time in a penitentiary and receives the services he or she needs, there is no point in testing the accused further once he or she is released from the penitentiary.

Finally, a probation order is a useful tool for a judge who, whether the accused has been in pre‑sentence custody or not, believes it is wiser to sentence the accused to imprisonment for two years or less with a period of probation rather than sentencing the accused to a term in a penitentiary. The issue of probation is therefore directly related to post‑sentencing custody.

([2007] Q.J. No. 1540 (QL), 2007 QCCA 310, at paras. 17‑19)

Indeed, if it were to be concluded that a probation order is not available in cases where the total of the time spent in pre‑sentence custody and the sentence of imprisonment imposed by the judge is more than two years, this could have a harmful consequence, as the judge might decide to impose a longer period of incarceration. This interpretation, which must be rejected, would have the unfortunate effect of unjustifiably increasing the length of time to be served in prison; in addition, the probation order’s effect of facilitating an offender’s reintegration into society would be unavailable to offenders who might benefit from it.

V

The appeal in Monière raises an additional issue: Does pre‑sentence custody form part of the sentence for the purposes of s. 743.6(1.2) and the delaying of parole pursuant to that provision? The issue, then, is whether the expression “sentence of imprisonment of two years or more” used by Parliament in s. 743.6(1.2) refers to the custodial term imposed by the judge at the time of sentencing.

By the time he was sentenced, the respondent Monière had been detained for eight months. The judge was of the opinion that a sentence of imprisonment of more than two years would be proportionate to the gravity of the offences committed by the respondent. Taking the pre‑trial detention into account, however, he imposed an aggregate sentence of 23 months’ imprisonment, consisting of 12 months for participating in the activities of a criminal organization (s. 467.11 of the Code), 11 months consecutive for drug trafficking and 11 months for conspiracy to traffic in drugs, to be served concurrently with the second sentence. The judge imposed three years of probation and, pursuant to s. 743.6(1.2) of the Code, ordered the respondent to serve half his sentence before being eligible for parole.

Section 743.6(1.2) provides for the possibility of delaying an offender’s parole if the sentence imposed on the offender is two years or more. The trial judge in Monière believed he had the authority to make such an order on the basis that, had it not been for the time spent in pre‑sentence custody, the respondent would have received a sentence of imprisonment of more than two years. The Court of Appeal set aside that order.

The respondent Monière argues that, since the sentence imposed by the judge was less than two years, the judge could not order him to serve half the sentence before being eligible for parole. I agree.

The Crown conceded at the hearing in this Court that the calculation of one half of the sentence to be served must be based on the sentence imposed at the time of sentencing. Since the respondent Monière’s sentence was 23 months, the Crown thus suggests that he had to serve 11½ months before being eligible for parole. The incongruity of this submission is obvious, since s. 743.6(1.2) does not apply at all to sentences of less than 24 months.

Another comment is necessary. In determining whether s. 743.6(1.2) of the Code applies in a given case, a judge may not add the sentences imposed on different counts to conclude that the two‑year threshold for the application of that provision has been reached. An order under s. 743.6(1.2) requiring an offender to serve one half of the sentence before being eligible for parole may be made only in respect of individual counts, taken separately. In any event, a parole ineligibility order may be made only in respect of a sentence imposed for one of the offences referred to in s. 743.6(1.2). That provision states clearly that the judicial power to delay parole exists only “for a terrorism offence or an offence under section 467.11, 467.12 or 467.13”.

Here, s. 743.6(1.2) applied only to the offence of participating in a criminal organization. The trial judge sentenced the respondent Monière to imprisonment for 12 months on that count. The Court of Appeal was therefore correct to set aside the order made under s. 743.6(1.2).

VI

For all these reasons, as I stated at the outset, I would allow the appeal in Mathieu and restore the probation order imposed by the trial judge, and I would dismiss the appeals in Jin, St‑Germain and Monière.