R. v. Clarke

Abella J. — Sentencing legislation will not be given retrospective application unless the legislation unequivocally states that it is to have retrospective effect. This does not immunize it from a Charter challenge, but if no such challenge is brought, the ordinary rules of statutory interpretation apply. This is not to suggest that these rules exclude Charter values as one aspect of the broader interpretive context contemplated by our “modern rule of interpretation”, but that is different from using those values to create ambiguity when none exists.

The accused in this case, Calvin Clarke, did not bring a constitutional challenge to s. 5. Nor did he allege abuse of process. His argument instead was that the provision was ambiguous and that the appropriate interpretive exercise involved the application of Charter values.

With respect for those with a different view (R. v. Serdyuk (2012), 68 Alta. L.R. (5th) 152 (C.A.), and R. v. A.A.M. (2013), 335 Nfld. & P.E.I.R. 199 (N.L.C.A.)), I agree with the trial judge and Court of Appeal in this case that the impugned provision unambiguously applies only to those offenders charged after the amendments came into force, regardless of when the offences were committed. In the absence of a Charter challenge, this ends the interpretive exercise.

Analysis

Prior to the enactment of the Truth in Sentencing Act, judges routinely exercised their discretion to give offenders extra credit for time spent in custody awaiting sentencing at a ratio higher than one day of credit for every day in custody. This was a reflection of the reality that unlike custody after sentencing, pre-sentence custody conditions were often harsher, remedial programs were unavailable and time spent in custody did not count for the purposes of early release (statutory release or remission) (R. v. Wust, [2000] 1 S.C.R. 455). Credit was usually given at a rate of two days for every day served in pre-sentence custody, but could be higher depending on the offender’s pre-sentence custodial circumstances.

Section 3 of the Truth in Sentencing Act restricted this discretion by limiting it to “a maximum of one day for each day” in “custody” (Criminal Code , R.S.C. 1985, c. C-46, s. 719(3)) unless “the circumstances” justified an increase to a maximum of one and a half days (s. 719(3.1)). Those provisions are the subject of two decisions of this Court which are being concurrently released: R. v. Summers, [2014] 1 S.C.R. 575, and R. v. Carvery, [2014] 1 S.C.R. 605. These decisions considered what “circumstances” would justify an increase to the maximum allowable credit.

On February 20 and 21, 2010, Mr. Clarke committed a number of offences, including break and enter. The amendments were enacted on February 22, 2010. He was charged in March, 2010.

Mr. Clarke pleaded guilty on November 10, 2010 and was sentenced to 10 years. The trial judge gave him the maximum allowable credit under the amendments of one and a half days for each day spent in pre-sentence custody. His sentence was therefore reduced by 17 months.

Mr. Clarke argued unsuccessfully at trial and before the Court of Appeal that on a proper interpretation of s. 5, the Truth in Sentencing Act did not apply to him because the offences were committed before the legislation came into force and he was therefore entitled to the two or three days’ credit that was available when the offences were committed. Rather than bring a direct Charter challenge, he argued that the provision was ambiguous and that Charter values should therefore be applied in a way that gave s. 5 prospective effect.

It is true that new sentencing legislation should be presumed not to apply retrospectively (R. v. Dineley, [2012] 3 S.C.R. 272). The presumption can be displaced, however, by a clear legislative direction that a provision is to apply retrospectively. The requirement for clarity, as Deschamps J. noted in Dineley, ensures that

the cases in which legislation has retrospective effect must be exceptional. . . . New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively . . . . [para. 10]

In this case, the language is sufficiently clear to rebut the presumption. With respect, it is difficult to find a less ambiguous expression of statutory intent than in the simple language of s. 5. It states clearly that the new provisions apply to persons charged after the Act came into force. The only triggering event is when the person was charged, regardless of when the offences were committed.

The absence of ambiguity also precludes the application of the interpretive assistance of Charter values, which only play a role if there is genuine ambiguity as to the meaning of a provision (Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, and R. v. Rodgers, [2006] 1 S.C.R. 554). If the statute is unambiguous, the court must give effect to the clearly expressed legislative intent.

The role of Charter values in interpreting statutes was explained by Iacobucci J. in Bell ExpressVu as follows:

. . . to the extent this Court has recognized a “Charter values” interpretive principle, such principle can only receive application in circumstances of genuine ambiguity, i.e., where a statutory provision is subject to differing, but equally plausible, interpretations. [Emphasis in original; para. 62.]

. . .

. . . a blanket presumption of Charter consistency could sometimes frustrate true legislative intent, contrary to what is mandated by the preferred approach to statutory construction. . . . [para. 64]

. . .

. . . if courts were to interpret all statutes such that they conformed to the Charter , this would wrongly upset the dialogic balance. Every time the principle were applied, it would pre-empt judicial review on Charter grounds, where resort to the internal checks and balances of s. 1 may be had. In this fashion, the legislatures would be largely shorn of their constitutional power to enact reasonable limits on Charter rights and freedoms, which would in turn be inflated to near absolute status. Quite literally, in order to avoid this result a legislature would somehow have to set out its justification for qualifying the Charter right expressly in the statutory text, all without the benefit of judicial discussion regarding the limitations that are permissible in a free and democratic society. Before long, courts would be asked to interpret this sort of enactment in light of Charter principles. The patent unworkability of such a scheme highlights the importance of retaining a forum for dialogue among the branches of governance. As such, where a statute is unambiguous, courts must give effect to the clearly expressed legislative intent and avoid using the Charter to achieve a different result. [Emphasis added; para. 66.]

In Rodgers, Charron J. confirmed these interpretive borders in the criminal law context:

. . . It has long been accepted that courts should apply and develop common law rules in accordance with the values and principles enshrined in the Charter . . . . However, it is equally well settled that, in the interpretation of a statute, Charter values as an interpretative tool can only play a role where there is a genuine ambiguity in the legislation. In other words, where the legislation permits two different, yet equally plausible, interpretations, each of which is equally consistent with the apparent purpose of the statute, it is appropriate to prefer the interpretation that accords with Charter principles. However, where a statute is not ambiguous, the court must give effect to the clearly expressed legislative intent and not use the Charter to achieve a different result. . . . [Emphasis added; para. 18.]

If this limit were not imposed on the use of the Charter as an interpretative tool, the application of Charter principles as an overarching rule of statutory interpretation could well frustrate the legislator’s intent in the enactment of the provision. Moreover, it would deprive the Charter of its more powerful purpose — the determination of the constitutional validity of the legislation . . . . [para. 19]

The requirement of statutory ambiguity as a prerequisite to the application of Charter values was most recently acknowledged in R. v. Mabior, [2012] 2 S.C.R. 584, where the Chief Justice stated that Charter values are “always relevant” to the interpretation of a “disputed” provision of the Criminal Code (para. 44). The two cases relied on by the Chief Justice for this proposition — R. v. Sharpe, [2001] 1 S.C.R. 45, at para. 33 and Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, at para. 35 — both assert that where more than one interpretation of a provision is equally plausible, Charter values should be used to determine which interpretation is constitutionally compliant.

Nor, with respect, is Mr. Clarke assisted by Doré v. Barreau du Québec, [2012] 1 S.C.R. 395, which was referred to by the Alberta Court of Appeal in Serdyuk. Only in the administrative law context is ambiguity not the divining rod that attracts Charter values. Instead, administrative law decision-makers “must act consistently with the values underlying the grant of discretion, including Charter values” (Doré, at para. 24). The issue in the administrative context therefore, is not whether the statutory language is so ambiguous as to engage Charter values, it is whether the exercise of discretion by the administrative decision-maker unreasonably limits the Charter protections in light of the legislative objective of the statutory scheme.

In the case before us, as Laskin J.A. noted in his inarguable reasons, “[t]he words of s. 5 are clear and admit of only one meaning”, namely:

. . . The new provisions apply to the sentencing of all persons charged after the Act came into force, no matter when the offences were committed. . . . [T]o give effect to the appellant’s position, one would have to read into s. 5 the following underlined words:

[The new provisions], as enacted by s. 3, apply only to persons charged with an offence committed after the day on which those [provisions] come into force. [para. 19]

Parliament has to be taken to know the difference between the date an offence takes place and the date a person is charged with the offence. To read in those underlined words would change Parliament’s intent on the applicability of the Truth in Sentencing Act. The trial judge’s interpretation of the Act is therefore consistent with the plain words of the statute. [para. 20]

. . .

One obvious purpose of the Truth in Sentencing Act is to reduce the credit available for the population of offenders detained before sentencing. The triggering date for detention before sentencing is the date the person is charged and held pending a bail hearing. The date a person commits an offence is of no relevance to this purpose of the Truth in Sentencing Act. . . . [Text in brackets in original; para. 22.]

Mr. Clarke was charged after the Act came into force. He was therefore subject to the credit limits for pre-sentence custody in accordance with s. 5.

The appeal is dismissed.