R. v. Clarke (C.),

• Jurisdiction: Ontario
• Judge: Laskin, Goudge and Gillese, JJ.A.
• Neutral Citation: 2013 ONCA 7
• Date: 10 December 2012
• Court: Court of Appeal (Ontario)

R. v. Clarke (C.) (2013), 302 O.A.C. 40 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JA.001

Her Majesty the Queen (respondent) v. Calvin Clarke (appellant)

(C55206; 2013 ONCA 7)

Indexed As: R. v. Clarke (C.)

Ontario Court of Appeal

Laskin, Goudge and Gillese, JJ.A.

January 11, 2013.

Summary:

The accused pled guilty to break and enter and numerous firearms-related offences. He was sentenced to 10 years' imprisonment, less 17 months' credit for time spent in pre-sentence custody (1.5 for 1 credit). The accused sought leave to appeal the sentence. He argued that the trial judge erred in applying the Truth in Sentencing Act to limit the credit given him for time spent in pre-sentence custody as the offences occurred before the Act came into force.

The Ontario Court of Appeal granted leave to appeal, but dismissed the appeal. The Act applied.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - Section 5 of the Truth in Sentencing Act provided that the limits on credit for pre-sentence custody in the subsections enacted by s. 3 applied only to persons charged after the day on which those subsections came into force (February 22, 2010) - The Ontario Court of Appeal held that the Act applied to an accused's sentence, where the accused committed the offences for which he was sentenced before the Act came into force, but was charged with those offences after the Act came into force - The presumption against retrospectivity was displaced by Parliament's clear legislative intent in s. 5 that the new restrictions on credit for pre-sentence custody were meant to apply retrospectively - They applied to the sentencing of all persons charged after the Act came into force, no matter when the offences were committed - One obvious purpose of the Act was to reduce the credit available for the population of offenders detained before sentencing - The triggering date for detention before sentencing was the date the person was charged and held pending a bail hearing - The date a person committed an offence was of no relevance to this purpose of the Act.

Statutes - Topic 6714

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Retrospective or retroactive operation - Criminal or penal legislation - [See Criminal Law - Topic 5848.2 ].

Cases Noticed:

R. v. Wust (L.W.), [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 5].

R. v. Johnson (J.J.), [2003] 2 S.C.R. 357; 308 N.R. 333; 186 B.C.A.C. 161; 306 W.A.C. 161; 2003 SCC 46, refd to. [para. 13].

R. v. Dineley (S.) (2012), 436 N.R. 59; 2012 SCC 58, refd to. [para. 13].

R. v. Serdyuk (O.S.) (2012), 533 A.R. 199; 557 W.A.C. 199; 2012 ABCA 205, not folld. [para. 16].

R. v. D.I., [2012] 1 S.C.R. 149; 427 N.R. 4; 288 O.A.C. 1; 2012 SCC 5, refd to. [para. 17].

Information Commissioner (Can.) v. Canada (Minister of National Defence), [2011] 2 S.C.R. 306; 416 N.R. 105; 2011 SCC 25, refd to. [para. 44].

Statutes Noticed:

Truth in Sentencing Act, S.C. 2009, c. 29, sect. 5 [para. 2].

Counsel:

Diana Lumba, for the appellant;

Mabel Lai, for the respondent.

This appeal was heard on December 10, 2012, before Laskin, Goudge and Gillese, JJ.A., of the Ontario Court of Appeal. Laskin, J.A., released the following decision for the court on January 11, 2013.