Andre O’Mar Slack was sentenced to eight years imprisonment in a federal penitentiary for weapons-related offences. His convictions included the possession of a loaded restricted firearm, and the unauthorized possession of a firearm – contrary to sections 95(1) and 91(1) of the Criminal Code. His 95(1) conviction was stayed in accordance with Kienapple.

Slack appealed from sentence based on two grounds.

First, Slack argued the sentencing judge erred in failing to grant enhanced credit at the rate of 1.5:1 for pre-sentence custody.

Second, Slack argued the sentencing judge erred by using the five-year mandatory minimum sentence set out in s. 95(2) of the Code as a “sentencing floor”, when the mandatory minimums in both R v Nur, 2013 ONCA 677 and R v Charles, 2013 ONCA 681 (both cases subsequently heard and reserved on November 7, 2014 at the Supreme Court of Canada) were held to unconstitutional [paras 5-6].

Slack’s first ground of appeal was successful. Based on Slack’s institutional conduct, the sentencing judge had declined to grant any enhanced credit for pre-sentence custody, finding that enhanced credit was not necessary to achieve a fair sanction based on the Court of Appeal’s decision in R v Summers, 2013 ONCA 147. However, the sentencing judge did not have the benefit of the Supreme Court’s decision in Summers (2014 SCC 26). Writing for the Supreme Court, Karakatsanis J outlined that pre-sentence custody is generally sufficient to give rise to the inference that the offender has lost eligibility for parole or early release, which in turn justifies enhanced credit. It falls to the Crown to challenge this inference. The Crown can advance such a challenge by demonstrating that the offender’s bad conduct renders it unlikely that parole or early release will be will be granted: see Summers, supra and R v Houlder, 2014 ONCA 372 [para 10-15].

Here, it fell to the Crown to counter the available inference. While Slack had three documented incidents of misconduct during his pre-sentence custody, the Court of Appeal concluded the sentencing judge fell into error by denying enhanced credit based solely on this evidence. Slack’s institutional record was thin, and the Crown was unable to demonstrate such misconduct would disentitle him to parole or early release. Further, the authority to deny statutory release is narrow, and unlike the regime which applies to provincially-incarcerated inmates, loss of credit towards early release is not a sanction that may be imposed for misconduct under the Corrections and Conditional Release Act (CCRA). The minor incidents which took place in pre-sentence custody did not give rise to the type of reasonable grounds required to demonstrate a denial of parole ineligibility or early release [paras 16-20].

Although the Court of Appeal set aside the sentencing judge’s determination of credit and substituted credit to be granted at 1.5:1, Slack’s second ground of appeal failed, regarding the quantum of sentence imposed.

The Court of Appeal clarified that while the mandatory minimums in Nur –three years for a first conviction under s. 95(1) – and the companion case Charles –five years for a second or subsequent conviction under s. 95(2)(a)(ii) and s. 95(1)– were both struck down, nothing in those cases displaced 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 offences must receive exemplary sentences that emphasize deterrence and denunciation [para 23].

Slack’s case was just that: one of true crime. It was his second s. 95(1) offence. He had a lengthy criminal record, which included convictions such as the use of an imitation firearm during the commission of a robbery, assault, trafficking in a scheduled substance, and breaching a firearm prohibition order [para 24].

Further, the Court highlighted that Slack was in unauthorized possession of loaded, restricted firearm in circumstances that posed a real and immediate danger to the public. The gun was readily accessible in an unlocked, running car; which Slack had abandoned in a public parking lot, in broad daylight. Given his serious and lengthy record, the nature of the predicate offences, and the four-year sentence received for his first s. 95(1) offence, the Court of Appeal concluded that Slack’s conduct could only be viewed as falling at the “true crime” end of the s. 95(1) spectrum discussed in Nur and Charles. The convictions cried out for a substantial penitentiary sentence [paras 25-26].

For these reasons, there was no basis to interfere with the eight year sentence imposed by the sentencing judge for the firearms-related offences. Therefore, the Appeal was only granted in part, with respect to the pre-sentence custody.

Comment

This case highlights that the impact of the Summers decision on the granting (and challenging) of enhanced credit is necessarily different depending on whether the offender is serving a provincial or federal sentence - different regimes govern early release. Still, while Slack was found to be entitled to this credit, the Court was unequivocal that the quantum of sentence imposed was justified given the “true crime” nature of both the offences, and Slack’s consistent pattern of criminal conduct. The striking down of the mandatory minimums in Nur and Charles, which the Supreme Court has yet to rule on, does nothing to negate the often serious penitentiary sentences required in cases such as these.