R. v. Kovich (G.W.),

• Jurisdiction: Manitoba
• Judge: Chartier, C.J.M., Steel and Monnin, JJ.A.
• Neutral Citation: 2016 MBCA 19
• Date: 25 May 2015
• Court: Court of Appeal (Manitoba)

R. v. Kovich (G.W.) (2016), 326 Man.R.(2d) 101 (CA);

      664 W.A.C. 101

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. FE.026

Her Majesty The Queen (appellant) v. Gordon William Kovich (accused/respondent) and The Attorney General of Canada (intervener)

(AR 14-30-08116)

Her Majesty The Queen (appellant) v. Courtney Nadine Bittern (accused/respondent) and The Attorney General of Canada (intervener)

(AR 14-30-08270)

(2016 MBCA 19)

Indexed As: R. v. Kovich (G.W.)

Manitoba Court of Appeal

Chartier, C.J.M., Steel and Monnin, JJ.A.

February 9, 2016.

Summary:

Section 719(3.1) of the Criminal Code provided that if the circumstances justified it, a sentencing judge could grant enhanced credit for pre-sentence custody unless the accused was denied bail because of a previous conviction, or because he or she breached a condition of release or was reasonably believed to have committed an indictable offence while on release. In unrelated proceedings, Kovich and Bittern were charged with various offences. Kovich was denied bail because of his prior record. Bittern had her bail revoked because she committed an offence while subject to a recognizance. As a result, neither was entitled to enhanced credit for pre-sentence custody. Kovich and Bittern each brought motions challenging the constitutionality of s. 719(3.1).

The Manitoba Provincial Court, in a decision reported at (2013), 300 Man.R.(2d) 176, granted Kovich's motion, finding that s. 719(3.1) violated an accused's liberty interests under s. 7 of the Charter and was not saved by s. 1 of the Charter. The court granted Bittern's motion in a decision reported at (2014), 313 Man.R.(2d) 221, finding that s. 719(3.1) was inconsistent with ss. 7 and 15 of the Charter and was not saved by s. 1. The Crown appealed both decisions. The appeals were heard together.

The Manitoba Court of Appeal dismissed the appeals. The impugned exemptions were an unjustifiable infringement of s. 7 of the Charter because (1) they interfered with the fundamental principle of proportionality in the sentencing process; (2) the linkage of the granting or refusal of bail to the issue of enhanced credit in the sentencing process was both arbitrary and overbroad.

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - Section 719(3.1) of the Criminal Code provided that a sentencing judge could grant enhanced credit for pre-sentence custody unless the accused was denied bail because of a previous conviction, or because he or she breached a condition of release or was reasonably believed to have committed an indictable offence while on release - The Manitoba Court of Appeal held that s. 719(3.1) violated s. 7 of the Charter because it interfered with proportionality in sentencing, which was a principle of fundamental justice - The denial of bail was related to the determination of a proportionate sentence - Under s. 719(3.1), an accused could be denied enhanced credit not because of bad conduct, but because of an inability to obtain bail, which was entirely irrelevant to the determination of a proportionate sentence - The factors taken into account on a bail decision were not proven beyond a reasonable doubt, yet they resulted in a longer period of incarceration even if the accused was subsequently acquitted of the breach charge that triggered the revocation of bail - Factors completely outside an accused's control could impact directly on the time spent in custody, irrespective of the factors relevant on sentencing - Where bail was refused due to an accused's previous conviction, he or she could be punished twice for his previous convictions, since a criminal record was also a relevant consideration in sentencing - Those who fell within the exemptions would potentially serve a longer period of incarceration than those who did not, yet what placed an offender within the scope of the exemption was the outcome of a bail hearing, and not the circumstances of the offence or the offender's personal circumstances - See paragraphs 42 to 89.

Civil Rights - Topic 726

Liberty - Charter of Rights and Freedoms - Denial of liberty - What constitutes - [See Civil Rights - Topic 686 and Civil Rights - Topic 3107.2 ].

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - Overbreadth principle (incl. arbitrariness) - Section 719(3.1) of the Criminal Code provided that a sentencing judge could grant enhanced credit for pre-sentence custody unless the accused was denied bail because of a previous conviction, or because he or she breached a condition of release or was reasonably believed to have committed an indictable offence while on release - The Manitoba Court of Appeal held that s. 719(3.1) violated s. 7 of the Charter because the linkage of the granting or refusal of bail to the issue of enhanced credit in the sentencing process was both arbitrary and overbroad - The law was arbitrary because (i) the ability to secure bail after breaching a recognizance or committing indictable offences while on release might be related to factors entirely beyond the accused's control, such as whether he had friends or family willing to act as a surety, or whether he could obtain sufficient bail monies; and (ii) its precise effect on a particular offender had no relation to the accused's personal circumstances, criminal record, or the circumstances of the offence - The effect of the law did not further its stated objective - It targeted the inability to get bail as opposed to wrongful conduct or violent offenders - Nor did the conduct targeted by the law affect the awarding of early remission - Only an accused's conduct while in custody was taken into account in terms of early remission - A criminal record that resulted in a person having his bail denied did not necessarily mean that his sentence should be increased, yet that was the effect of s. 719(3.1) - Such a blanket use of a criminal record was overbroad - See paragraphs 90 to 110.

Civil Rights - Topic 8316

Canadian Charter of Rights and Freedoms - Application - Proportionality test - [See Civil Rights - Topic 8348 ].

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See Civil Rights - Topic 686 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - Section 719(3.1) of the Criminal Code provided that a sentencing judge could grant enhanced credit for pre-sentence custody unless the accused was denied bail because of a previous conviction, or because he or she breached a condition of release or was reasonably believed to have committed an indictable offence while on release - The Manitoba Court of Appeal held that the exemptions in s. 719(3.1) violated s. 7 of the Charter because (1) they interfered with the fundamental principle of proportionality in the sentencing process; and (2) the linkage of the granting or refusal of bail to the issue of enhanced credit in the sentencing process was both arbitrary and overbroad - The court further held that the breach of s. 7 was not justified under s. 1 of the Charter - Section 719(3.1) failed to minimally impair an accused's liberty rights and the effects were not proportionate to the objectives - The means chosen here resulted in harsher sentences for offenders who spent excessive time in pre-sentence custody due to circumstances unrelated to their moral blameworthiness or criminal responsibility - Repeat offenders who would benefit from rehabilitative programs but did not seek bail, or whose records were not endorsed, or who obtained bail might indeed receive either enhanced credit or statutory remission - There was an artificial distinction drawn between similarly situated offenders that undermined the public confidence in a fair sentencing process - See paragraphs 111 to 143.

Criminal Law - Topic 5801.1

Sentencing - General - Proportionality - [See Civil Rights - Topic 686 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - [See Civil Rights - Topic 686 and Civil Rights - Topic 3107.2 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - Bittern was charged with robbery - While on judicial interim release, she breached her curfew twice, failed to notify the authorities of an address change, and ultimately committed an assault which resulted in her bail being revoked - The sentencing judge held that these things did not preclude Bittern from receiving enhanced credit for pre-sentence custody - In particular, the assault was driven by a requirement to get money for drugs - The Crown appealed, arguing that enhanced credit should not be given where continued detention was the result of an offender's bad conduct - The Manitoba Court of Appeal dismissed the appeal - The sentencing judge specifically looked to Bittern's circumstances while she was in custody, including her behaviour, pro-social goals and insight, participation in programming, and lack of a disciplinary record - There was positive evidence that Bittern would earn remission and early release - See paragraphs 150 to 156.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - Kovich pleaded guilty to a number of offences, including several break and enters - He had been in pre-sentence custody for 19 months - While in custody, he participated in Bible studies, held some employment for lengthy periods of time, and also had some disciplinary issues - There were some delays in the proceedings which were not Kovich's fault, such as obtaining preliminary inquiry dates - As well, there was delay attributable to a motion in which Kovich successfully challenged the constitutionality of s. 719(3.1) of the Criminal Code - The sentencing judge held that Kovich was entitled to credit for pre- sentence custody on a 1.25 to 1.0 basis considering his "institutional behaviour, some of the challenges that he has had while in the institution, some of the disciplinary problems, some of the more positive behaviour in terms of his employment, some of the programming that he has been involved in, and some of the delays in terms of the proceedings in the case" - The Manitoba Court of Appeal dismissed the Crown's appeal - The sentencing judge did not err in the exercise of his discretion to grant enhanced credit - See paragraphs 157 to 159.

Cases Noticed:

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 22].

R. v. Farrah (D.) (2011), 268 Man.R.(2d) 112; 520 W.A.C. 112; 2011 MBCA 49, refd to. [para. 30].

R. v. Stonefish (S.T.) (2012), 288 Man.R.(2d) 103; 564 W.A.C. 103; 2012 MBCA 116, refd to. [para. 30].

R. v. Summers (S.), [2014] 1 S.C.R. 575; 456 N.R. 1; 316 O.A.C. 349; 2014 SCC 26, refd to. [para. 34].

R. v. Nur (H.) (2013), 311 O.A.C. 244; 2013 ONCA 677, refd to. [para. 36].

R. v. Safarzadeh-Markhali (H.) (2014), 325 O.A.C. 17; 2014 ONCA 627, leave to appeal granted [2014] S.C.C.A. No. 489, folld. [para. 40].

Federation of Law Societies of Canada v. Canada (Attorney General) (2015), 467 N.R. 243; 365 B.C.A.C. 3; 627 W.A.C. 3; 2015 SCC 7, refd to. [para. 43].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 47].

R. v. Chambers (D.F.) (2014), 362 B.C.A.C. 22; 622 W.A.C. 22; 2014 YKCA 13, leave to appeal dismissed [2014] S.C.C.A. No. 534, consd. [para. 48].

R. v. Ferguson (M.E.), [2008] 1 S.C.R. 96; 371 N.R. 231; 425 A.R. 79; 418 W.A.C. 79; 2008 SCC 6, refd to. [para. 50].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 60].

R. v. Anderson (F.), [2014] 2 S.C.R. 167; 458 N.R. 1; 350 Nfld. & P.E.I.R. 289; 1088 A.P.R. 289; 2014 SCC 41, refd to. [para. 60].

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 2010 ABCA 363, refd to. [para. 61].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 64].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 66].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 66].

R. v. Dinardo (2015), 321 C.C.C.(3d) 525; 2015 ONSC 1804, agreed with [para. 72].

R. v. Vermette (I.M.) (2001), 156 Man.R.(2d) 120; 246 W.A.C. 120; 2001 MBCA 64, refd to. [para. 78].

Carter et al. v. Canada (Attorney General) et al., [2015] 1 S.C.R. 331; 468 N.R. 1; 366 B.C.A.C. 1; 629 W.A.C. 1; 2015 SCC 5, refd to. [para. 90].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 91].

R. v. Appulonappa (F.A.) (2015), 478 N.R. 3; 2015 SCC 59, refd to. [para. 96].

R. v. Moriarity (2015), 477 N.R. 356; 2015 SCC 55, refd to. [para. 97].

Guindon v. Minister of National Revenue (2015), 473 N.R. 120; 2015 SCC 41, refd to. [para. 114].

Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees, [2004] 3 S.C.R. 381; 326 N.R. 25; 242 Nfld. & P.E.I.R. 113; 719 A.P.R. 113; 2004 SCC 66, refd to. [para. 117].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 121].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 122].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 123].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 2001 SCC 7, refd to. [para. 124].

R. v. Demers (R.), [2004] 2 S.C.R. 489; 323 N.R. 201; 2004 SCC 46, refd to. [para. 124].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 124].

R. v. Smith (O.E.), [2015] 2 S.C.R. 602; 472 N.R. 1; 2015 SCC 34, refd to. [para. 128].

R. v. Michaud (G.) (2015), 339 O.A.C. 41; 2015 ONCA 585, refd to. [para. 138].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 141].

R. v. Cook (J.G.) (2015), 319 Man.R.(2d) 217; 638 W.A.C. 217; 2015 MBCA 63, refd to. [para. 145].

R. v. Ibrahim (M.) (2015), 319 Man.R.(2d) 200; 638 W.A.C. 200; 2015 MBCA 62, refd to. [para. 145].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 719(3.1) [para. 31].

Counsel:

D.L. Carlson, for the appellant;

A.K. Gowenlock, for the respondent, G.W. Kovich;

B.S. Newman, for the respondent, C.N. Bittern;

J.I. Katz and S.M. Telles-Langdon, for the intervener.

These appeals were heard on May 25, 2015, before Chartier, C.J.M., Steel and Monnin, JJ.A., of the Manitoba Court of Appeal. Steel, J.A., delivered the following judgment for the court on February 9, 2016.