MCLNugget: Prystay ABQB

R v Prystay, 2019 ABQB 8

 

The Issue

Prystay was charged with a number of offences including possess of a loaded firearm and failing to stop for police. Following his arrest he was detained in custody for 28.5 months. During this period of time he assaulted another inmate. He was consequently placed in administrative segregation – remaining there for 13.5 months. The issues for the court on sentencing were:

  1. Did the segregation amount to a violation of sections 7 or 12

  2. If so, what remedy – a stay or a sentence reduction via enhanced credit beyond 1.5:1 – is appropriate

The Answer

The placement of Prystay in administrative segregation amounted to a violation of s12. It was not the clearest of cases, however, and a stay was not warranted. As an alternative remedy, the court granted enhanced credit beyond 1.5:1 at a rate of 3.75:1.

The Fine Print

In coming to this conclusion the court touched on a number of points related to detention conditions. First, the court noted the general recognition that pre-sentence custody time is more onerous than sentencing time:

It has long been recognized that time served in remand or pre-trial custody is more onerous than time served in a penitentiary after sentencing.  Not only is the environment harsher, with limited access to programs, but pre-trial custody does not count toward parole eligibility or statutory release: R v Sooch, 2008 ABCA 186 at para 11, 433 AR 270; R v Summers, 2014 SCC 26 at para 26, [2014] 1 SCR 575; R v Adams, 2016 ABQB 648 at para 29, [2017] 4 WWR 741. [Para 19].

 

Second, with respect to segregation, the court arrived at the following conclusions:

Inmates in either form of segregation are confined to their cell for 23 hours a day. Most are in single cells.  They have two half-hour blocks outside of their cell during each 24 hour period. If an inmate is designated a cleaner for the unit, they may have an additional one to two hours outside their cell. Movement is strictly controlled. ERC staff are separated from the inmates by a steel and glass wall. 

[…]

Arguably, it is the lack of meaningful human contact that is the most pernicious consequence of placement in segregation. Human beings are not meant to be isolated, particularly for extended periods. The longer a person is isolated, the more challenging it is to relate to others in an acceptable way and to form any type of meaningful relationship. [Paras 28, 39]

 

Third, the court discussed limits and expectations regarding the length of segregation:

To reiterate, Prystay does not challenge his initial placement in AS. His conduct against a fellow inmate warranted this action. The legitimate penal aim in placing Prystay in AS was to ensure the safety and security of other inmates and staff. As outlined below, placement in AS for 13 ½ months went well beyond what was necessary to achieve this legitimate aim. 

Of note, an inmate cannot be placed in DS for more than 14 days at a time: Correctional Institute Regulation, Alta Reg 205/2001, s 46. In contrast, neither the Corrections and Conditional Release Act, s 1992, c 20 (CCRA), nor its regulations, mandate any limit on placement in AS. [Paras 48-49].

 

Fourth, the court commented on the impact of the “indefinite” placement in segregation on Prystay:

I accept Prystay’s evidence that while in AS, he suffered from auditory hallucinations, paranoia, difficulties sleeping, anxiety and chest pain, feelings of hopelessness, increased antisocial feelings. Given his pre-existing mental health issues and the sheer length of time spent in AS, I conclude he was at increased risk of suffering some degree of permanent impact.   

Despite Prystay not having demonstrated permanent psychological injury caused by his stay in AS, I have no hesitation in concluding that while in AS, he suffered mental injury and physical symptoms and his placement put him at significant risk of permanent psychological injury. 

Finally, I conclude that Prystay’s placement was devoid of procedural fairness and appropriate oversight, and on the evidence, his ongoing placement was not justified. [Paras 82-84].

 

Finally, in terms of remedy, the court found a stay was not appropriate:

Similarly, while I find the evidence here to be shocking and deeply disturbing, these circumstances fall short of the “clearest of cases,” especially since a reduction in sentence can be fashioned so as to provide an appropriate remedy. [Para 162].

MCLNugget: Plante ONCA

R v Plante, 2018 ONCA 251

The Issue

What factors govern the granting of credit for pre-sentence custody, especially in relation to an offender sentenced to a reformatory period of incarceration.

The Answer

The Court of Appeal noted the difference between provincial and federal jail time:

A prisoner who is sentenced to 18 months jail, but does not obtain parole is released after 12 months because of earned remission, unless institutional misconduct results in forfeiture of remission. Twelve months of presentence custody is equivalent to an 18 month sentence in these circumstances. According to Summers, this differential alone justifies enhanced credit at a ratio of 1.5:1. [@7]

The court clarified the approach and noted the error of the sentencing judge:

The sentencing judge was wrong to equate re-committal for violation of the terms of statutory release under the federal system with misconduct while serving a sentence within a provincial institution which would lead to a loss of earned remission under the provincial system. There was no evidence here of institutional misconduct which would likely lead to a prolongation of the appellant’s incarceration past the two thirds mark of his sentence. [@10]

The Fine Print

For context, the sentencing judge refused the 1.5:1 credit for the following reasons:

I have considered the defence request that Mr. Plante receive enhanced credit for his presentence in custody. On five previous occasions Mr. Plante was a statutory release violator. I conclude that he is not a candidate for parole or early release. I have not been provided with information about overcrowding at the detention centre or other conditions that might have made Mr. Plante’s presentence detention more onerous. The defence has not met its onus to demonstrate that enhanced credit should be awarded for the presentence in custody. [@2 ONCA]

See to similar effect R v Pitamber, 2018 ONCA 518 where the Court of Appeal offered the following:

The sentencing judge refused to give the appellant credit for pre-sentence custody on any more than a one-for-one basis as the appellant had breached the no contact provisions of previous orders on many occasions. The sentencing judge did not have the benefit of R. v. Plante, 2018 ONCA 251 (CanLII), as well as the fresh evidence indicating that the accused has behaved well during his time in custody.

There is no reason to believe that the accused will not be entitled to release after serving two thirds of his sentence in a provincial institution. Parity of treatment in these circumstances between persons released on bail and those detained in custody mandates a further credit on a 1.5:1 basis of 43 days. The sentence was otherwise fit. [@1-2]

DM

MCLNugget: Hunt ONCA

R v Hunt, 2018 ONCA 480

The Issue

Does late disclosure, delaying a bail hearing and causing “unnecessary and prolonged uncertainty [regarding his bail status] for the appellant and his family that he supported”.

The Answer

Credit may be provided for state conduct as per R v Nasogaluak, 2010 SCC 6. In this case, however, the trial judge properly rejected the request:

In the view of the sentencing judge, the alleged misconduct did not have anything to do with the circumstances of the offence or the offender so as to warrant consideration in sentencing: see Nasogaluak, at paras. 3 and 49. We agree. Moreover, even if the late disclosure can be described as state misconduct, it does not rise to the level of being a mitigating factor in this case. [@17].

DM

Toews Counting: one day for one day

Trevor Toews was convicted of second-degree murder. With respect to sentence, the Crown and defence were ad idem regarding the appropriate period of parole ineligibility - 10 years. The sentencing judge accepted this position. The judge, however, reduced the 10 years to 6 years and 8 months to "reflect an enhanced credit for pre-trial custody" [para 1]. The Crown appealed that ruling. The Court of Appeal allowed the Crown's appeal: 2015 ABCA 167.   

Enhanced credit may be given where a court imposes a jail sentence, pursuant to section 719(3.1). The discretion to do so, provided in that section, has no application to life sentences for murder; that sentence is prescribed by 745(c). Time spent in custody prior to sentencing for murder is included in the calculation of the period of parole ineligibility but enhanced credit cannot be given in relation to that time [paras 3-4]. 

There is nothing in the statutory scheme that expressly supports a discretion to reduce the period of parole ineligibility below the statutory minimum. The absence of a specific provision precluding the discretion cannot support the existence of a residual discretion contrary to the statutory scheme. These conclusions are consistent with decisions of this Court and other appellate courts: R v Stephen, 1999 ABCA 190 (CanLII); R v Tsyganov,1998 NSCA 227; R v Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 161 OAC 169 (CA).
The respondent argues that had he known there was an issue as to the availability of an enhanced credit, he may have led evidence to justify the credit. This argument cannot succeed. No amount of evidence can overcome a lack of jurisdiction. [Paras 4-5]

DM

Not so Endless Summer(s)

Mr Abdullahi was convicted after a trial of four offences relating to the possession of loaded restricted firearm. The only issue at trial was whether the accused was in possession of the firearm; he claimed he was not. The trial judge rejected the accused’s evidence and convicted him of the offences before the court. At the time Abdullahi was found to be in possession of the loaded restricted firearm he prohibited from doing so.

The trial judge imposed a global sentence of 6 years. The breakdown of the sentence was as follows:

  • Count 1:  Possession of a loaded restricted firearm (s. 95(1)):  4 years;
  • Count 3:  Possession of a firearm knowing its possession is unauthorized (s. 92(1)):  1 year consecutive to the s. 95(1) charge; and
  • Counts 4 and 5:  Possession of a firearm and possession of ammunition while prohibited:  1 year consecutive to the s. 95(1) and s. 92(1) sentences, but concurrent to each other.

Quigley J credited Abdullahi at a rate of 1.5:1 for 72 days of presentence custody as those days the offender was held in very crowded conditions. Abdullahi received no credit for the remaining 448 days of presentence custody.

Abdullahi appealed conviction and sentence.

The appellant’s main argument on the sentence appeal was that the trial judge erred in his assessment of the credit for pre-sentence custody. The Court of Appeal rejected that argument: 2015 ONCA 549.

In dealing with this argument the Court of Appeal noted first, that the sentencing judge did not have the benefit of the Supreme Court’s judgment in Summers, 2014 SCC 26.

The Court of Appeal briefly reviewed the principles in Summers and summarized them as follows:

First, the quantitative rationale for an enhanced credit is grounded in the loss of eligibility for early release and parole during pre-sentence custody.

Second, the qualitative rationale for an enhanced credit is to be applied to account for the relative harshness of the conditions in a detention center.

The Court of Appeal noted that the trial judge correctly applied the qualitative rationale in accounting for the harsh conditions during the 72 days where Mr Abdullahi shared a cell with two others.

The Court then noted that although loss of eligibility for early release is generally sufficient to grant enhanced credit it does not mean that such a credit is automatic. In fact, the specific circumstances of a particular offender may result in an adjustment or even denial of such a credit.

The Court held the following:

As observed in Summers, at para. 71, the quantitative rationale, that is loss of eligibility for early release and parole, will generally be a sufficient basis upon which to award credit at 1.5:1.  The credit is not, however, automatic.  If the circumstances of a specific offender render the possibility of early release or parole highly unlikely, then a trial judge can adjust, or even refuse enhanced credit:  Summers, at paras. 71, 79; R. v. Nelson, 2014 OJ. No. 5729, at para. 51-53. @para 18

In Mr Abdullahi’s case the Court noted that:

To assist in the proper application of Summers, this court received a report from the Ministry of the Solicitor General and Correctional Services outlining the appellant’s conduct since his incarceration of these charges.  His conduct could hardly be worse.  Unfortunately, his conduct since incarceration clearly demonstrates that he continues to engage in serious criminal and anti-social conduct even while in custody.  There is no realistic possibility that the appellant will be given any form of early release or parole.  Applying the quantitative rationale underlying enhanced credit for presentence custody, the appellant is not entitled to any credit beyond 1:1 credit. @para 19

As such even though the sentencing judge did not have the benefit of the decision in Summers, the Court of Appeal found no error in the allocation of the credit for pre-sentence custody.

This decision serves as an important reminder that the enhanced credit is not automatic but requires a quantitative and qualitative analysis, based on a sound evidentiary record, to be undertaken by the sentencing judge. 

LT

Cutting No Slack on Quantum in True Crime Sentencing

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.

SS