R. v. Wust

This appeal raises a legal issue of deceptive simplicity, which has generated a number of contrary decisions in several courts of appeal. The issue is whether, when Parliament has imposed a mandatory minimum sentence, the courts may deduct from that sentence the time spent by the accused in custody while awaiting trial and sentence, if this has the effect of reducing the sentence pronounced by the court to less than the minimum provided by law.

More specifically, in this appeal from a judgment of the British Columbia Court of Appeal we must determine whether a judge may exercise the discretion provided for in s. 719(3) of the Criminal Code , R.S.C., 1985, c. C-46 , to credit time spent in pre-sentencing custody when calculating the appropriate sentence for robbery while using a firearm under s. 344(a) of the Code. Section 344(a) prescribes a mandatory minimum punishment of four years’ imprisonment.

Section 344(a) is one of several amendments to the Code prescribing mandatory minimum punishments for firearms-related offences, arising from the enactment of the Firearms Act , S.C. 1995, c. 39 . The Firearms Act amendments to the Code did not provide for any changes to the sentencing provisions in s. 719 of the Code, which are of general application. In particular, s. 719(3) provides that in determining the sentence to be imposed, the court may take into account any time spent in custody in relation to the offence for which a person has been convicted. The question of whether this can be done in relation to mandatory minimum sentences has created a problem of statutory interpretation which the courts of British Columbia, Ontario, Quebec, and Nova Scotia have variously addressed during the four years since the amendments have been in force, reaching different conclusions regarding the interaction between the two sections.

The Quebec Court of Appeal has held that it is not appropriate for the trial judge to consider pre-sentencing custody in cases where such a consideration would result in a sentence falling below the mandatory minimum: R. v. Alain (1997), 119 C.C.C. (3d) 177, and R. v. Lapierre (1998), 123 C.C.C. (3d) 332. Proulx J.A. in Lapierre held (at p. 344) that the punishment in s. 344(a) required a sentence of four years’ imprisonment, since a sentence commences from the day it is imposed, pursuant to s. 719(1) of the Code. However, Proulx J.A. also recognized (at pp. 345-46) that removing the discretion to take account of the time spent in custody created some difficulty, since the crediting of pre-trial custody is based on fairness and the need to avoid injustice in the individual case.

Other courts have followed Lapierre and Alain in determining that pre-trial custody may not be applied to mandatory minimum punishments. For example, Langdon J., in R. v. Sanko, [1998] O.J. No. 1026 (QL) (Gen. Div.), and Bateman J.A. of the Nova Scotia Court of Appeal, in R. v. Morrisey (1998), 124 C.C.C. (3d) 38, have both held that it is not open to a trial judge to apply the discretion provided for in s. 719(3), where to do so would result in a sentence below the mandatory minimum.

The reasoning of the Quebec Court of Appeal was also followed by the British Columbia Court of Appeal in this case. The appellant was one of five persons who appealed their sentences, challenging the constitutionality of s. 344(a) under s. 12 of the Canadian Charter of Rights and Freedoms and requesting that s. 719(3) be interpreted to permit a reduction of the mandatory minimum punishment set out in s. 344(a) to take into account pre-sentencing custody. McEachern C.J.B.C., writing for a unanimous Court of Appeal, upheld the constitutionality of s. 344(a): R. v. Wust (1998), 125 C.C.C. (3d) 43, at p. 59. McEachern C.J.B.C. also reasoned that, since a sentence commences upon its imposition under s. 719(1), the mandatory language of s. 344(a) precludes the judicial discretion permitted by s. 719(3), where such discretion would result in a sentence of less than the required minimum of four years. Otherwise, the mandatory sentence prescribed by s. 344(a) would be reduced impermissibly: Wust, at p. 60.

At approximately the same time as the British Columbia Court of Appeal was deciding Wust, the Ontario Court of Appeal was considering the same issue in R. v. McDonald (1998), 127 C.C.C. (3d) 57. Rosenberg J.A., writing for a unanimous court, declined to follow the reasons of Proulx J.A. in Lapierre, supra, and held that s. 719(3) could be applied to s. 344(a). Following a thorough analysis of both s. 344(a) and s. 719(3), based on principles of statutory interpretation and with reference to Charter values, Rosenberg J.A. held that pre-sentencing custody could be considered even if such credit resulted in reducing the sentence imposed on conviction below four years, since the total punishment would still equal the mandatory minimum of four years. Concurring with Rosenberg J.A. was Borins J.A., who took the unusual opportunity to overrule his own earlier decision in R. v. Brown (1976), 36 C.R.N.S. 246 (Ont. Co. Ct.), regarding the inapplicability of s. 649(2.1) (now s. 719(3)) to the mandatory minimum sentence set out in s. 5(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1.

In another interesting turn of events, a five-judge panel of the British Columbia Court of Appeal, in R. v. Mills (1999), 133 C.C.C. (3d) 451, overturned its decision in the present case, adopting the reasons of Rosenberg J.A. in McDonald. The court in Mills held at pp. 458-59 that

[i]ncarceration, whether before or after disposition, is a serious deprivation of liberty, and being forced to ignore it as part of sentencing is inherently unjust. Moreover, not taking time in custody into account can lead to unjust discrepancies between similarly situated offenders. . . .

The task before this Court is to settle the controversy regarding whether or not s. 719(3) may be applied to sentences imposed under s. 344(a), and, by implication, to mandatory minimum sentences in general. For the reasons that follow, I find Rosenberg J.A.’s analysis in McDonald compelling. The McDonald decision makes it clear that this Court can uphold both Parliament’s intention that offenders under s. 344(a) receive a minimum punishment of four years imprisonment and Parliament’s equally important intention to preserve the judicial discretion to consider pre-sentencing custody under s. 719(3) and ensure that justice is done in the individual case.

On July 5, 1996, the appellant and two accomplices robbed a gas station, their faces covered with bandanas. Two of them, including the appellant, were armed. The appellant pointed a loaded nine millimetre, semi-automatic pistol into the cashier’s face, showed him that the gun was loaded and demanded money. The cashier handed him $780 and the appellant struck him several times on the head with his fist, and threatened to kill him if he gave the police his description.

The appellant was arrested shortly thereafter and charged with both robbery and possession of a restricted weapon. He was 22 years old at the time of the offence and had an extensive criminal record in both youth and adult courts, with 30 convictions dating back to July 1990, including violent offences. A prohibition against possessing firearms was in force against him at the time of the robbery. He was detained pending trial and sentencing for a period of seven and a half months.

At trial in the Supreme Court of British Columbia, Grist J. held that the discretion allowed by s. 721(3) (now s. 719(3)) of the Code is applicable to sentences imposed under s. 344(a), since to do otherwise, and fail to give credit for time served would risk violation of s. 12 of the Charter . Grist J. determined that the appropriate sentence in this case was four and a half years, with a concurrent sentence of one year for possession of a restricted weapon. The appellant was credited one year for his pre-sentencing custody of seven and a half months, reducing his sentence, under s. 344(a), to three and a half years.

The Crown appealed that sentence to the British Columbia Court of Appeal, seeking to have it increased from three and a half years to seven or eight years on the basis of the accused’s lengthy criminal record. The Crown also sought to have the credit for pre-sentencing custody set aside. The appellant cross-appealed, challenging the constitutionality of the mandatory minimum punishment of s. 344(a) as a violation of his s. 12 Charter right to be free of cruel and unusual punishment.

McEachern C.J.B.C., writing for a unanimous court, upheld the constitutionality of s. 344(a) under s. 12 of the Charter , and also held that the correct interpretation of s. 344(a) mandated the imposition of a sentence of at least four years. Because s. 719(1) provides that a sentence begins when it is imposed, McEachern C.J.B.C. held that it was not possible to reduce a sentence to account for time served while awaiting trial, if such a discount results in a sentence of less than the required minimum. However, if the credit does not result in a sentence of less than four years, s. 719(3) may be applied: Wust, at p. 60.

McEachern C.J.B.C. also considered the Crown appeal against the sentence and concluded that, in the circumstances, the four and one-half years imposed by the trial judge was not unfit. He also found that the trial judge did not commit an error in giving credit for time served prior to sentencing; however, McEachern C.J.B.C. varied the sentence to allow a credit only to the extent of reaching the minimum sentence of four years: Wust, at p. 61.

The appeal to the British Columbia Court of Appeal in this case was heard and decided at the same time as four other sentencing appeals, all under s. 344(a). Two of those appeals were also heard in this Court together with the present case: R. v. Arthurs, [2000] 1 S.C.R. 481, 2000 SCC 19, and R. v. Arrance, [2000] 1 S.C.R. 488, 2000 SCC 20, released concurrently and to which these reasons apply as well.

Criminal Code , R.S.C., 1985, c. C-46

344. Every person who commits robbery is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

. . .

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

. . .

718.3 (1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.

(2) Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment.

. . .

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.

Mandatory minimum sentences are not the norm in this country, and they depart from the general principles of sentencing expressed in the Code, in the case law, and in the literature on sentencing. In particular, they often detract from what Parliament has expressed as the fundamental principle of sentencing in s. 718.1 of the Code: the principle of proportionality. Several mandatory minimum sentences have been challenged under s. 12 of the Charter , as constituting cruel and unusual punishment: see, for example, R. v. Smith, [1987] 1 S.C.R. 1045, R. v. Goltz, [1991] 3 S.C.R. 485, and Morrisey, supra.

On some occasions, a mandatory minimum sentence has been struck down under s. 12, on the basis that the minimum prescribed by law was, or could be, on a reasonable hypothetical basis, grossly disproportionate to what the circumstances called for. See, for example, Smith, striking down s. 5(2) of the Narcotic Control Act; R. v. Bill (1998), 13 C.R. (5th) 125 (B.C.S.C.), striking down the four-year minimum sentence for manslaughter with a firearm under s. 236(a) of the Code; R. v. Leimanis, [1992] B.C.J. No. 2280 (QL) (Prov. Ct.), in which the s. 88(1)(c) minimum sentence of the B.C. Motor Vehicle Act for driving under a s. 85(a) prohibition was invalidated; and R. v. Pasacreta, [1995] B.C.J. No. 2823 (QL) (Prov. Ct.), where the same penalty as in Leimanis for driving under a s. 84 prohibition was also struck down.

In other cases, courts have fashioned the remedy of a constitutional exemption from a mandatory minimum sentence, thereby upholding the enactment as valid while exempting the accused from its application: see R. v. Chief (1989), 51 C.C.C. (3d) 265 (Y.T.C.A.), and R. v. McGillivary (1991), 62 C.C.C. (3d) 407 (Sask. C.A.). Finally, in some of the cases where the courts have upheld a minimum sentence as constitutionally valid, it has been noted that the mandatory minimum sentence was demonstrably unfit or harsh in the case before the court. See, for example, McDonald, supra, at p. 85, per Rosenberg J.A., and R. v. Hainnu, [1998] N.W.T.J. No. 101 (QL) (S.C.), at para. 71.

Even if it can be argued that harsh, unfit sentences may prove to be a powerful deterrent, and therefore still serve a valid purpose, it seems to me that sentences that are unjustly severe are more likely to inspire contempt and resentment than to foster compliance with the law. It is a well-established principle of the criminal justice system that judges must strive to impose a sentence tailored to the individual case: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 92, per Lamer C.J.; R. v. Gladue, [1999] 1 S.C.R. 688, at para. 93, per Cory and Iacobucci JJ.

Consequently, it is important to interpret legislation which deals, directly and indirectly, with mandatory minimum sentences, in a manner that is consistent with general principles of sentencing, and that does not offend the integrity of the criminal justice system. This is entirely possible in this case, and, in my view, such an approach reflects the intention of Parliament that all sentences be administered consistently, except to the limited extent required to give effect to a mandatory minimum.

In accordance with the umbrella principle of statutory interpretation expressed by this Court in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paras. 20-23, mandatory minimum sentences must be understood in the full context of the sentencing scheme, including the management of sentences provided for in the Corrections and Conditional Release Act , S.C. 1992, c. 20 . Several provisions of the Code, and of other federal statutes, provide for various forms of punishment upon conviction for an offence. Most enactments providing for the possibility of imprisonment do so by establishing a maximum term of imprisonment. In deciding on the appropriate sentence, the court is directed by Part XXIII of the Code to consider various purposes and principles of sentencing, such as denunciation, general and specific deterrence, public safety, rehabilitation, restoration, proportionality, disparity, totality and restraint, and to take into account both aggravating and mitigating factors. The case law provides additional guidelines, often in illustrating what an appropriate range of sentence might be in the circumstances of a particular case. In arriving at a fit sentence, the court must also be alive to some computing rules, for example, the rule that sentences cannot normally be back- or post-dated: s. 719(1) of the Code; see also R. v. Patterson (1946), 87 C.C.C. 86 (Ont. C.A.), at p. 87, per Robertson C.J., and R. v. Sloan (1947), 87 C.C.C. 198 (Ont. C.A.), at pp. 198-99, per Roach J.A., cited with approval by Rosenberg J.A., in McDonald, supra, at p. 71.

Rarely is the sentencing court concerned with what happens after the sentence is imposed, that is, in the administration of the sentence. Sometimes it is required to do so by addressing, by way of recommendation, or in mandatory terms, a particular form of treatment for the offender. For instance in murder cases, the sentencing court will determine a fixed term of parole ineligibility: s. 745.4 of the Code. However, for the most part, after a sentence of imprisonment is imposed, the Corrections and Conditional Release Act comes into play to administer that sentence, with the almost invariable effect of reducing the amount of time actually served in detention. Under this Act, the offender earns statutory remission, that is, time that will be automatically deducted from the sentence imposed. Furthermore, he or she will become eligible for escorted and unescorted temporary absences, work releases, day parole and full parole, and statutory release. In short, it is quite possible, indeed, it is most likely, that the person sentenced will not be incarcerated for the full period of time imposed in the sentence pronounced by the court.

The Corrections and Conditional Release Act , in effect, “deems” the time spent lawfully at large by the offender who is released on parole, statutory release or unescorted temporary absence as a continuation of the sentence until its expiration: s. 128(1) . This provision applies to all sentences, even where the term of imprisonment imposed is a statutory mandatory minimum.

The Firearms Act addressed the issue of the administration of mandatory minimum sentences, but in a very minimal way by amending one section of Schedule I of the Corrections and Conditional Release Act . Schedule I sets out the offences for which the sentencing court has power to delay eligibility for full parole to the lesser of one-half of the sentence or ten years, rather than the standard time for full parole eligibility of the lesser of one-third of the sentence or seven years: s. 120(1) of the Corrections and Conditional Release Act , referring to, among other sections, s. 743.6 of the Code. In s. 165, the Firearms Act amends Schedule I to include using an imitation firearm in the commission of an offence, as prohibited by s. 85(2) of the Code.

This slight amendment of the Corrections and Conditional Release Act by the Firearms Act suggests that while Parliament turned its mind to the administration of sentences when it was introducing the firearms-related minimum sentences, it did not see fit to alter the general administration of sentences in a way that would distinguish the new mandatory minimums from other sentences. It therefore follows that a rigid interpretation of s. 719(3), which suggests that time served before sentence cannot be credited to reduce a minimum sentence because it would offend the requirement that nothing short of the minimum be served, does not accord with the general management of minimum sentences, which are in every other respect “reduced” like all others, even to below the minimum.

In addition, and in contrast to statutory remission or parole, pre-sentence custody is time actually served in detention, and often in harsher circumstances than the punishment will ultimately call for. In R. v. Rezaie (1996), 112 C.C.C. (3d) 97 (Ont. C.A.), to which several lower courts have referred in their consideration of pre-sentencing custody, Laskin J.A. succinctly summarizes the particular features of pre-trial custody that result in its frequent characterization as “dead time” at p. 104:

. . . in two respects, pre-trial custody is even more onerous than post-sentencing custody. First, other than for a sentence of life imprisonment, legislative provisions for parole eligibility and statutory release do not take into account time spent in custody before trial (or before sentencing). Second, local detention centres ordinarily do not provide educational, retraining or rehabilitation programs to an accused in custody waiting trial.

As this quotation from Rezaie demonstrates, pre-sentencing custody, pre-trial custody, pre-disposition custody and “dead time” are all used to refer to the time spent by an accused person in detention prior to conviction and sentencing. For the purposes of this decision, I consider all these terms to refer to the same thing; however, I prefer “pre-sentencing custody” as it most accurately captures all the time an offender may have spent in custody prior to the imposition of sentence.

Several years ago, Professor Martin L. Friedland published an important study of pre-sentencing custody in which he referred to Professor Caleb Foote’s Comment on the New York Bail Study project, noting that “accused persons . . . are confined pending trial under conditions which are more oppressive and restrictive than those applied to convicted and sentenced felons”: Detention Before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates’ Courts (1965), at p. 104. As Rosenberg J.A. noted in McDonald, supra, at p. 72: “There has been little change in the conditions under which remand prisoners are held in this province in the almost forty years since Professor Friedland did his study”. Considering the severe nature of pre-sentencing custody, and that the accused person is in fact deprived of his or her liberty, credit for pre-sentencing custody is arguably less offensive to the concept of a minimum period of incarceration than would be the granting of statutory remission or parole. It is therefore ironic that the applicability of s. 719(3) has encountered such difficulties in the case of minimum sentences, simply because the “interference” with the minimum is at the initial sentence determination stage and thus more readily apparent.

As was pointed out by Rosenberg J.A. in McDonald at p. 73, Parliament enacted the forerunner to s. 719(3) of the Criminal Code as part of the Bail Reform Act, R.S.C. 1970 (2nd Supp.), c. 2, for the very specific purpose of ensuring that the well-established practice of sentencing judges to give credit for time served while computing a sentence would be available even to reduce a sentence below the minimum fixed by law. During the second reading of what was then Bill C-218, An Act to amend the provisions of the Criminal Code relating to the release from custody of accused persons before trial or pending appeal, Justice Minister John Turner described Parliament’s intention regarding what is now s. 719(3):

Generally speaking, the courts in deciding what sentence to impose on a person convicted of an offence take into account the time he has spent in custody awaiting trial. However, under the present Criminal Code , a sentence commences only when it is imposed, and the court’s hands are tied in those cases where a minimum term of imprisonment must be imposed. In such cases, therefore, the court is bound to impose not less than the minimum sentence even though the convicted person may have been in custody awaiting trial for a period in excess of the minimum sentence. The new version of the bill would permit the court, in a proper case, to take this time into account in imposing sentence.

(House of Commons Debates, 3rd Sess., 28th Parl., Vol. 3, February 5, 1971, at p. 3118.)

Counsel for the respondent has directed this Court’s attention to the remarks of then Justice Minister Allan Rock concerning Bill C-68, An Act respecting firearms and other weapons, during the House of Commons debates and before the Standing Committee on Justice and Legal Affairs. On these occasions, the Justice Minister articulated Parliament’s intention that the new mandatory minimum sentences for firearms-related offences act as a strong deterrent to the use of guns in crime. See House of Commons Debates, Vol. 133, No. 154, 1st Sess., 35th Parl., February 16, 1995, at pp. 9706 et seq.; House of Commons, Standing Committee on Justice and Legal Affairs, Evidence, April 24, 1995, Meeting No. 105, and May 19, 1995, Meeting No. 147. However, when Parliament enacted s. 344(a) as part of the Firearms Act in 1995, Parliament did not also modify s. 719(3), to exempt this new minimum sentence from its application, any more than it modified the applicability of the provisions of the Corrections and Conditional Release Act to mandatory minimum sentences. For the courts to exempt s. 344(a) from the application of s. 719(3), enacted specifically to apply to mandatory minimum sentences, would therefore defeat the intention of Parliament.

All of the above suggests that if indeed s. 719(3) had to be interpreted such as to prevent credit being given for time served in detention prior to sentencing under a mandatory minimum offence, the result would be offensive both to rationality and to justice. Fortunately, as was admirably explained by Rosenberg J.A. in McDonald, supra, this result is avoided through the application of sound principles of statutory interpretation.

In his judgment, Rosenberg J.A. employed several well-established rules of statutory interpretation to conclude as he did, at p. 69, that s. 719(3) provides sentencing judges with a “substantive power to count pre-sentence custody in fixing the length of the sentence”. I agree with his analysis. In particular, I approve of his reference to the principle that provisions in penal statutes, when ambiguous, should be interpreted in a manner favourable to the accused (see R. v. McIntosh, [1995] 1 S.C.R. 686, at para. 29, per Lamer C.J.); to the need to interpret legislation so as to avoid conflict between its internal provisions, to avoid absurd results by searching for internal coherence and consistency in the statute; and finally, where a provision is capable of more than one interpretation, to choose the interpretation which is consistent with the Charter : Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078, per Lamer J. (as he then was). Without repeating Rosenberg J.A.’s analysis here, I wish to make a few observations.

Rosenberg J.A. relied on the distinction between the meaning of the words “punishment” and “sentence”, the former being used in s. 344(a) and the latter in s. 719(3). I set out the relevant provisions again, for ease of reference:

344. Every person who commits robbery is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years;

719. . . .

(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. [Emphasis added.]

The distinction between “sentence” and “punishment” was developed by the Canadian Sentencing Commission in its 1987 report, Sentencing Reform: A Canadian Approach, at pp. 110 et seq. In summary, Rosenberg J.A. emphasized at pp. 76-78 that “sentencing” is a judicial determination of a legal sanction, in contrast to “punishment” which is the actual infliction of the legal sanction. While this distinction is helpful, I do not think that it is fundamental to sustain the conclusion that s. 719(3) may be applied to s. 344(a). The French version does not employ a similar distinction in the language of the two sections. In French, the expression “la peine” is used interchangeably for “punishment” (s. 344(a)), for “sentencing” (marginal note to s. 718.2) and for “sentence” (i.e., ss. 718.2 and 719). However, the expression “punishment” which is used twice in s. 718.3(1), is referred to in French first as “de peine” and the second time, in the same sentence, as “la punition”. What is fundamental is less the words chosen, in the French or English version, but the concepts that they carry. Again, for ease of reference, I set out some of these provisions:

344. Quiconque commet un vol qualifié est coupable d'un acte criminel passible:

a) s'il y a usage d'une arme à feu lors de la perpétration de l'infraction, de l'emprisonnement à perpétuité, la peine minimale étant de quatre ans . . .

718.3 (1) Lorsqu'une disposition prescrit différents degrés ou genres de peine à l'égard d'une infraction, la punition à infliger est, sous réserve des restrictions contenues dans la disposition, à la discrétion du tribunal qui condamne l'auteur de l'infraction.

719. . . .

(3) Pour fixer la peine à infliger à une personne déclarée coupable d'une infraction, le tribunal peut prendre en compte toute période que la personne a passée sous garde par suite de l'infraction. [Emphasis added.]

Overall, both versions lead to the same conclusion, since the French phrase in s. 719(3), “[p]our fixer la peine” places the emphasis on the sentencing judge’s role of calculating the appropriate sentence, and in doing so, provides the discretion for considering the amount of time already spent in custody by the convicted offender in relation to the offence. Since these sections refer to “la peine”, it seems logical to conclude that in determining “la peine minimale” it is acceptable to apply s. 719(3), since “la peine minimale” is merely a subset of “la peine” generally, and has not been excluded expressly from the operation of s. 719(3). No violence is done to the language of the Code when the sections are read together, in French or in English, and are understood to mean, as Parliament intended, that an offender will receive a minimum sentence of four years, to commence when it is imposed, and calculated with credit given for time served.

I have already commented on the usually harsh nature of pre-sentencing custody and referred to the frequent characterization of this detention as “dead time”. Some further comments are required.

Counsel for the respondent urged this Court to consider the apparent fallacy of recognizing pre-sentencing custody as punishment, since it is commonly recognized that Canadian law does not punish innocent citizens. Rosenberg J.A. in McDonald, supra, at p. 77, noted that “accused persons are not denied bail to punish them before their guilt has been determined”. He referred to this Court’s decision in R. v. Pearson, [1992] 3 S.C.R. 665, at pp. 687-88, where Lamer C.J. held that the presumption of innocence as guaranteed by s. 11(d) of the Charter has “no application at the bail stage of the criminal process, where the guilt or innocence of the accused is not determined and where punishment is not imposed”.

Counsel for the respondent also referred to this passage from Pearson to support the contention that pre-trial custody may not be considered as part of the offender’s punishment. With respect, it is important to consider the broader context of Lamer C.J.’s comments. At that point in the Pearson judgment (at pp. 687-88), Lamer C.J. was elaborating on the specific understanding of the s. 11(d) presumption of innocence in the trial context:

Thus the effect of s. 11(d) is to create a procedural and evidentiary rule at trial that the prosecution must prove guilt beyond a reasonable doubt. This procedural and evidentiary rule has no application at the bail stage of the criminal process, where the guilt or innocence of the accused is not determined and where punishment is not imposed. Accordingly, s. 515(6)(d) does not violate s. 11(d). [Emphasis added.]

Looking at this larger context, one cannot conclude that Lamer C.J. was proposing that pre-sentencing custody could never be viewed as punishment or that it could not retroactively be treated as part of the punishment, as provided for by s. 719(3).

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). The effect of deeming such detention punishment is not unlike the determination, discussed earlier in these reasons, that time spent lawfully at large while on parole is considered nonetheless a continuation of the offender’s sentence of incarceration.

If this Court were to conclude that the discretion provided by s. 719(3) to consider pre-sentencing custody was not applicable to the mandatory minimum sentence of s. 344(a), it is certain that unjust sentences would result. First, courts would be placed in the difficult situation of delivering unequal treatment to similarly situated offenders: for examples, see McDonald, supra, at pp. 80-81. Secondly, because of the gravity of the offence and the concern for public safety, many persons charged under s. 344(a), even first time offenders, would often be remanded in custody while awaiting trial. Consequently, discrepancies in sentencing between least and worst offenders would increase, since the worst offender, whose sentence exceeded the minimum would benefit from pre-sentencing credit, while the first time offender whose sentence would be set at the minimum, would not receive credit for his or her pre-sentencing detention. An interpretation of s. 719(3) and s. 344(a) that would reward the worst offender and penalize the least offender is surely to be avoided.

These examples of the absurd results we could expect from an exclusion of the application of s. 719(3) to mandatory minimum sentences, such as that provided by s. 344(a), are further indication that Parliament intended these two sections to be interpreted harmoniously and consistently within the overall context of the criminal justice system’s sentencing regime.

I see no advantage in detracting from the well-entrenched judicial discretion provided in s. 719(3) by endorsing a mechanical formula for crediting pre-sentencing custody. As we have re-affirmed in this decision, the goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence. I adopt the reasoning of Laskin J.A., supra, in Rezaie, supra, at p. 105, where he noted that:

. . . provincial appellate courts have rejected a mathematical formula for crediting pre-trial custody, instead insisting that the amount of time to be credited should be determined on a case by case basis. . . . Although a fixed multiplier may be unwise, absent justification, sentencing judges should give some credit for time spent in custody before trial (and before sentencing). [Citations omitted.]

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.

I would allow the appeal and set aside the judgment of the Court of Appeal. I would reinstate the sentence imposed on the appellant by Grist J., who granted the appellant one year’s credit for his seven months of pre-sentencing custody, and sentenced him under s. 344(a) to three and one-half years’ imprisonment. The concurrent sentence of one year for possession of a restricted weapon would remain unaffected by these reasons.