R. v. Carvery (L.A.), 2012 NSCA 107

• Jurisdiction: Nova Scotia
• Judge: MacDonald, C.J.N.S., Hamilton and Beveridge, JJ.A.
• Neutral Citation: 2012 NSCA 107
• Citation: 2012 NSCA 107,(2012), 321 N.S.R.(2d) 321 (CA),305 CCC (3d) 329,[2012] CarswellNS 1062,[2012] NSJ No 527 (QL),321 NSR (2d) 321,321 N.S.R.(2d) 321,(2012), 321 NSR(2d) 321 (CA),[2012] NS.J. No 527 (QL),321 NSR(2d) 321
• Date: 03 October 2012
• Court: Court of Appeal of Nova Scotia (Canada)

R. v. Carvery (L.A.) (2012), 321 N.S.R.(2d) 321 (CA);

    1018 A.P.R. 321

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. OC.008

Her Majesty The Queen (appellant) v. Level Aaron Carvery (respondent)

(CAC 353119; 2012 NSCA 107)

Indexed As: R. v. Carvery (L.A.)

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Hamilton and Beveridge, JJ.A.

October 3, 2012.

Summary:

The 19 year old accused pleaded guilty to possession of crack cocaine for the purpose of trafficking and breach of his recognizance. The Crown, based on the accused's recent related record, sought four years' imprisonment. The accused argued for a sentence of one to two years' imprisonment, plus 1.5 to 1.0 credit for pre-trial custody.

The Nova Scotia Provincial Court, in a judgment reported (2011), 305 N.S.R.(2d) 167; 966 A.P.R. 167, sentenced the accused to 30 months' imprisonment for possession for the purpose of trafficking and 30 days' imprisonment (concurrent), for breach of recognizance, less 1.5 to 1.0 credit for pre-trial custody (14 months and one week). The Crown appealed both the trial judge's decision to give 1.5 to 1.0 credit for pre-trial custody and the initializing of the accused's name to protect his identity.

The Nova Scotia Court of Appeal allowed the appeal in part. The trial judge did not err in granting 1.5 to 1.0 credit for pre-trial custody, but did err in granting the accused anonymity through the use of initials.

Criminal Law - Topic 4490

Procedure - Trial - Publicity restrictions (incl. ban on publication of names) - A 19 year old accused pleaded guilty to possession of crack cocaine for the purpose of trafficking - The offence was committed when he was an adult (18) - The accused had a Youth Justice Court record, which the trial judge referred to in detail in her sentencing decision - Applying a "cautious approach", the judge decided to initialize the accused's name on the ground that s. 110 of the Youth Court Justice Act required her to do so - The Nova Scotia Court of Appeal held that the judge erred in protecting the adult accused's identity - The court noted that "even if the [accused] had been a young person under the YCJA, but was receiving an adult sentence, there would have been no restriction on publication of his name. ... I agree with the Crown that it makes little sense to interpret s. 110(1) as prohibiting publication of the name of an adult offender to protect his identify as a former young person under the YCJA when no such protection would be given to an actual young person who is being sentenced as an adult. ... s. 110(1) does not apply to restrict the publication of the identify of an adult offender who has previously been sentenced as a young person." - The court ordered that the accused's full name be used - See paragraphs 90 to 98.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - An accused sentenced to 30 months' imprisonment was given credit for 9.5 months' pretrial custody on a 1.5 to 1.0 basis because of lost remission - After amendments to the Criminal Code in force as of February 2010, s. 719(3) limited credit for pre-trial custody to a 1.0 to 1.0 basis (s. 719(3)), subject to a discretion under s. 719(3.1) to increase credit to a maximum of 1.5 to 1.0 "if the circumstances justify it" - The Crown argued that absent "exceptional circumstances", which required showing more than just the loss of earned or statutory remission and parole, a judge could not exceed the normal 1.0 to 1.0 credit - The Nova Scotia Court of Appeal disagreed, stating that "I do not find that ... the language used leads to the conclusion that Parliament intended judicial discretion would be limited to granting credit of 1.5:1 only in exceptional cases. ... taking into account the words of ss. 719(3) and (3.1) in their grammatical and ordinary sense and read in the entire context of the legislative scheme and object of the Act, the legislation provides for judicial discretion to grant credit of up to 1.5:1 for time spent in pre-trial custody if a judge is satisfied that the circumstances justify it, which includes consideration of the potential loss for the offender of earned or statutory remission and parole" - The court held that a judge's discretion to give credit greater than on a 1.0 to 1.0 basis was not reviewable unless there was an error in principle - In the present case, the judge reviewed all of the relevant information and concluded that the accused did not try to drag out his remand to manipulate the system to his benefit - The judge was entitled to conclude that the loss or remission justified credit for pre-trial custody on the maximum 1.5 to 1.0 basis - See paragraphs 12 to 89.

Criminal Law - Topic 8817

Young offenders - General principles - Procedure - Publication ban - [See Criminal Law - Topic 4490 ].

Cases Noticed:

R. v. McDonald (C.) (1998), 111 O.A.C. 25; 127 C.C.C.(3d) 57 (C.A.), refd to. [para. 14].

R. v. Tallman, Tallman, Laboucan and Auger (1989), 94 A.R. 251; 48 C.C.C.(3d) 81 (C.A.), refd to. [para. 15].

R. v. Rezaie (M.) (1996), 96 O.A.C. 268; 112 C.C.C.(3d) 97 (C.A.), refd to. [para. 16].

R. v. Mills (D.J.) (1999), 119 B.C.A.C. 284; 194 W.A.C. 284;1999 BCCA 159, refd to. [para. 17].

R. v. Wust (L.W.) et al. (2000), 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 18].

R. v. Johnson, 2011 ONCJ 77, refd to. [para. 20].

R. v. LeBlanc (J.A.) (2011), 305 N.S.R.(2d) 188; 966 A.P.R. 188; 2011 NSCA 60, refd to. [para. 20].

R. v. Morris (K.A.), [2011] O.T.C. Uned. 5206; 2011 ONSC 5206, disagreed with [para. 22].

R. v. Abubeker, [2011] O.J. No. 2927 (C.J.), disagreed with [para. 22].

R. v. B.R.S., 2011 ONCJ 484, disagreed with [para. 22].

R. v. Bridgeman, 2011 ONCJ 117, disagreed with [para. 22].

R. v. Jones (D.A.), [2011] O.T.C. Uned. 5330; 2011 ONSC 5330, disagreed with [para. 22].

R. v. Larochelle, 2011 ONCJ 339, disagreed with [para. 22].

R. v. Sharkey (R.), [2011] B.C.T.C. Uned. 1541; 2011 BCSC 1541, disagreed with [para. 22].

R. v. Dann (A.C.A.), [2011] N.S.R.(2d) Uned. 84; 2011 NSPC 22, agreed with [para. 23].

R. v. Billard (A.A.) (2011), 304 N.S.R.(2d) 265; 960 A.P.R. 265; 2011 NSPC 31, agreed with [para. 23].

R. v. Summers, [2011] O.J. No. 6377 (Sup. Ct.), agreed with [para. 23].

R. v. J.A., [2011] O.J. No. 3938 (C.J.), agreed with [para. 23].

R. v. Vittrekwa (G.), [2011] Yukon Cases Uned. (TC) 64; 2011 YKTC 64, agreed with [para. 23].

R. v. L.M. (2008), 374 N.R. 351; 2008 SCC 31, refd to. [para. 31].

Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 31].

R. v. MacDonald (E.) (2012), 317 N.S.R.(2d) 90; 1003 A.P.R. 90; 2012 NSCA 50, refd to. [para. 31].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 37].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 38].

R. v. Mac (M.K.) (2001), 140 O.A.C. 270 (C.A.), refd to. [para. 42].

Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; 280 N.R. 268; 2002 SCC 3, refd to. [para. 45].

R. v. Francis (G.) (2006), 210 O.A.C. 41; 79 O.R.(3d) 551 (C.A.), refd to. [para. 65].

R. v. Vermette, [1988] 1 S.C.R. 985; 85 N.R. 296; 14 Q.A.C. 161, refd to. [para. 88].

R. v. A.N. (2011), 300 N.S.R.(2d) 282; 950 A.P.R. 282; 2011 NSCA 21, refd to. [para. 88].

Foster-Jacques v. Jacques (2012), 320 N.S.R.(2d) 166; 1014 A.P.R. 166; 2012 NSCA 83, refd to. [para. 93].

F.N., Re, [2000] 1 S.C.R. 880; 255 N.R. 250; 191 Nfld. & P.E.I.R. 181; 577 A.P.R. 181, refd to. [para. 94].

Southam Inc. v. R. (1984), 48 O.R.(2d) 678 (H.C.), affd. (1986), 12 O.A.C. 394; 53 O.R.(2d) 663 (C.A.), leave to appeal denied (1986), 68 N.R. 398; 16 O.A.C. 80 (S.C.C.), refd to. [para. 94].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 719(1) [para. 13]; sect. 719(3), sect. 719(3.1) [para. 21].

Youth Criminal Justice Act, S.C. 2002, c. 1, sect. 110(1) [para. 90].

Authors and Works Noticed:

Côté, P.-A, Beaulac, S. and Devinat, M., The Interpretation of Legislation in Canada (4th Ed. 2011), pp. 462 to 468 [para. 84].

Manson, Allen, Pre-Sentence Custody and the Determination of a Sentence (Or How to Make a Mole Hill out of a Mountain) (2004), 49 C.L.Q. 292, generally [para. 14].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 209, 210 [para. 54]; 364 [para. 48]; 576, 593 to 615 [para. 84].

Counsel:

Jeffrey Moors, for the appellant;

Luke A. Craggs, for the respondent.

This appeal was heard on March 23, 2012, at Halifax, N.S., before MacDonald, C.J.N.S., Hamilton and Beveridge, JJ.A., of the Nova Scotia Court of Appeal.

On October 3, 2012, Beveridge, J.A., delivered the following judgment for the Court of Appeal.