R. v. Morin (C.B.), 2013 ABPC 9

• Judge: Groves, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: October 24, 2012
• Citations: 2013 ABPC 9;(2013), 551 A.R. 239 (PC)

R. v. Morin (C.B.) (2013), 551 A.R. 239 (PC)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. FE.016

Her Majesty the Queen v. Chester Benny Morin (accused)

(110658192P1; 111111191P1; 120971445P1; 2013 ABPC 9)

Indexed As: R. v. Morin (C.B.)

Alberta Provincial Court

Groves, P.C.J.

January 23, 2013.

Summary:

The accused was being sentenced for driving while impaired and driving while disqualified, and for property offences. The issues were credit for pre-sentence custody time (he had been in custody for 230 days), including the ratio of credit, and a fit sentence.

The Alberta Provincial Court sentenced the accused to a global sentence of 17 months' jail followed by two years' probation. The court granted credit for pre-sentence custody on a 1:1 basis. The total driving prohibition was five years.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - Section 719(3) of the Criminal Code granted the court discretion on whether and how much credit was to be granted for pre-sentence custody - The Alberta Provincial Court, in deciding whether or not to grant the accused credit for his pre-sentence custody time (from June 4 to August 10, 2012) in relation to unrelated charges that were stayed, stated that "[d]etermining whether pre-sentence custody time should be granted for an offence to which the accused is not being sentenced, is very fact specific." - See paragraph 22.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - Section 719(3) of the Criminal Code read that, 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 ..." - The Alberta Provincial Court stated that the "[r]eference ... to the phrase 'as a result of the offence' will most commonly be the 'offence' to which the accused is being sentenced. However, as each case must be decided on its own facts, there may be situations where a broader interpretation is appropriate. As can be noted from the case law, this phrase has received different interpretations. It should be remembered that to be consistent with well-known principles of statutory interpretation, penal legislation that is capable of more than one interpretation should be interpreted to the benefit of the accused" - See paragraph 48.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The Alberta Provincial Court decided to grant the accused credit for his pre-sentence custody time in relation to unrelated charges that were stayed, "given the unique circumstances of this case, and being mindful of the general rules for interpreting penal legislation" - The Crown had contemplated a bail revocation application pursuant to s. 524(8) of the Criminal Code; the Court would have been compelled to grant the application; then the issue of pre-sentence custody time would not have been a contested issue - "This Court wants to make it clear that s. 719(3) [Criminal Code] will most commonly be interpreted to restrict credit for time in custody to the offence for which the accused is being sentenced. There will be situations however, when a broader interpretation of 'as a result of the offence' will be warranted. What is paramount is whether a bail revocation occurred, was contemplated, or was even possible. ... It is also important to remember that pursuant to s. 719(3) ... a sentencing judge has discretion on how much, if any, credit should be granted." - See paragraphs 57 to 60.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused requested that he be granted 1.5:1 credit for his pre-sentence custody time, including the 68 days he spent in pre-trial custody between June 4 and August 10, 2012 on charges that were stayed - On June 4, 2012, the accused had a bail hearing before a justice of the peace in relation to a charge of assault and breaching a condition of an undertaking to a peace office - Bail was denied - The endorsement stated that bail was "denied based primarily on previous convictions" pursuant to s. 515(9.1) of the Criminal Code - The accused was arrested again on August 5, and had been in custody ever since - The Alberta Provincial Court credited all pre-sentence custody time on a 1:1 basis - In relation to pre-trial custody between June 4 and August 10, the court was precluded, pursuant to s. 719(3.1) of the Criminal Code from contemplating any greater credit than 1:1 time - It was also important to note that the court heard no evidence which would substantiate the granting of enhanced credit - See paragraphs 61 to 67.

Statutes - Topic 8406

Penal statutes - General principles - Ambiguity resolved in favour of accused - [See second Criminal Law - Topic 5848.2 ].

Cases Noticed:

R. v. Wilson (R.) (2008), 240 O.A.C. 59; 2008 ONCA 510, refd to. [para. 23].

R. v. Knife (D.R.), [2006] A.R. Uned. 504; 2006 ABPC 205, refd to. [para. 23].

R. v. K.G., [2012] O.T.C. Uned. 3523; 2012 ONSC 3523, refd to. [para. 23].

R. v. MacMillan (W.) (2003), 184 B.C.A.C. 239; 302 W.A.C. 239; 2003 CarswellBC 1555; 2003 BCCA 372, refd to. [para. 23].

R. v. Tsai (S.G.) (2005), 199 O.A.C. 244; 198 C.C.C.(3d) 533 (C.A.), consd. [para. 24].

R. v. Reid (J.), [2005] O.A.C. Uned. 217 (C.A.), consd. [para. 24].

R. v. Lau (W.T.) (2004), 357 A.R. 312; 334 W.A.C. 312; 193 C.C.C.(3d) 51; 2004 CarswellAlta 1712, dist. [para. 28].

R. v. Wal (M.K.), [2008] A.R. Uned. 711; 2008 ABQB 661, consd. [para. 34].

R. v. Dias (G.) (2011), 502 A.R. 156; 517 W.A.C. 156; 2010 ABCA 382; 2011 ABCA 6, consd. [para. 38].

R. v. Rupchand (P.) (2006), 220 B.C.A.C. 285; 362 W.A.C. 285; 2006 BCCA 11, consd. [para. 44].

R. v. Austin (D.) (1996), 78 B.C.A.C. 249; 128 W.A.C. 249 (C.A.), consd. [para. 45].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81, refd to. [para. 48].

R. v. C.D., [2005] 3 S.C.R. 668; 343 N.R. 1; 376 A.R. 258; 360 W.A.C. 258, refd to. [para. 48].

R. v. Serdyuk (O.S.) (2012), 533 A.R. 199; 557 W.A.C. 199; 2012 ABCA 205, refd to. [para. 50].

R. v. Carvery (L.A.) (2012), 321 N.S.R.(2d) 321; 1018 A.P.R. 321; 2012 NSCA 107, consd. [para. 52].

R. v. Morris (K.A.), [2011] O.T.C. Uned. 5206; 2011 ONSC 5206, refd to. [para. 53].

R. v. Abubeker, [2011] O.J. No. 2927 (C.J.), refd to. [para. 53].

R. v. B.R.S., 2011 ONCJ 484, refd to. [para. 53].

R. v. Bridgeman, 2011 ONCJ 117, refd to. [para. 53].

R. v. Jones (D.A.), [2011] O.T.C. Uned. 5330; 2011 ONSC 5330, refd to. [para. 53].

R. v. Larochelle, 2011 ONCJ 339, refd to. [para. 53].

R. v. Sharkey (R.), [2011] B.C.T.C. Uned. 1541; 2011 BCSC 1541, refd to. [para. 53].

R. v. Johnson (M.), 2011 ONCJ 77, refd to. [para. 53].

R. v. Dann (A.C.A.), [2011] N.S.R.(2d) Uned. 84; 2011 NSPC 22, refd to. [para. 53].

R. v. Billard (A.A.) (2011), 304 N.S.R.(2d) 265; 960 A.P.R. 265; 2011 NSPC 31, refd to. [para. 53].

R. v. Summers, [2011] O.J. No. 6377 (Sup. Ct.), refd to. [para. 53].

R. v. J.A., [2011] O.J. No. 3938 (C.J.), refd to. [para. 53].

R. v. Vittrekwa (G.), [2011] Yukon Cases Uned. 64; 2011 YKTC 64, refd to. [para. 53].

R. v. Hussein (J.S.) (2011), 518 A.R. 5; 2011 ABQB 601, consd. [para. 54].

R. v. Roberts (R.N.) (2005), 361 A.R. 149; 339 W.A.C. 149; 2005 ABCA 11, refd to. [para. 55].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 515(9.1) [para. 51]; sect. 719(3) [para. 20]; sect. 719(3.1) [para. 50].

Counsel:

S. Kalra, for the Crown;

M. Walker, for the accused.

This sentencing matter was heard on October 24, 2012, before Groves, P.C.J., of the Alberta Provincial Court, who delivered the following judgment, dated at Edmonton, Alberta, on January 23, 2013.