R. v. Stonefish (S.T.),

• Jurisdiction: Manitoba
• Judge: Steel, Hamilton and Beard, JJ.A.
• Neutral Citation: 2012 MBCA 116
• Citation: (2012), 288 Man.R.(2d) 103 (CA),2012 MBCA 116,[2013] 4 WWR 28,295 CCC (3d) 52,99 CR (6th) 41,[2012] MJ No 420 (QL),288 Man R (2d) 103,(2012), 288 ManR(2d) 103 (CA),288 ManR(2d) 103,288 Man.R.(2d) 103,[2012] M.J. No 420 (QL)
• Date: 02 November 2011
• Court: Court of Appeal (Manitoba)

R. v. Stonefish (S.T.) (2012), 288 Man.R.(2d) 103 (CA);

      564 W.A.C. 103

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. JA.001

Her Majesty The Queen (appellant) v. Shannon Twothunder Stonefish (accused/respondent)

(AR 11-30-07603; 2012 MBCA 116)

Indexed As: R. v. Stonefish (S.T.)

Manitoba Court of Appeal

Steel, Hamilton and Beard, JJ.A.

December 13, 2012.

Summary:

At his preliminary inquiry the accused pleaded guilty to one count of possession of cocaine for the purpose of trafficking and two counts of breach of recognizance. Eleven months following his arrest (during which time he was on remand), he was sentenced to 24 months for the drug offence and 60 days' concurrent for the breach of recognizance charges. The sentencing judge gave the accused enhanced credit for his 11 months of pre-sentencing custody using a 1.5:1 ratio. In the result he was granted credit of 16.5 months, leaving 7.5 months for him to serve. The Crown appealed respecting the credit for pre-sentencing custody.

The Manitoba Court of Appeal allowed the appeal. The court varied the accused's credit for time spent in custody before sentencing from one and a half days for each day spent in custody to a credit of one day for each day spent in custody, resulting in a sentence of imprisonment for the accused of 13 months commencing on the date of sentencing.

Criminal Law - Topic 5810.2

Sentencing - Sentencing procedure and rights of the accused - Reasons for sentence - [See eighth Criminal Law - Topic 5848.2 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - Section 719(3) of the Criminal Code provided that credit for pre-sentencing custody (PSC) would be at the rate of 1:1 - Section 719(3.1) provided that despite subsection (3), if the circumstances justified it, credit of up to 1.5:1 could be awarded - The Manitoba Court of Appeal addressed the issue of what circumstances justified an award of enhanced credit under s. 719(3) - See paragraphs 31 to 115.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - At his preliminary inquiry the accused pleaded guilty to one count of possession of cocaine for the purpose of trafficking and two counts of breach of recognizance - Eleven months following his arrest (during which time he was on remand), he was sentenced to 24 months - The sentencing judge gave the accused enhanced credit for his 11 months of pre-sentencing custody (PSC) using a 1.5:1 ratio - Thus, he was granted credit of 16.5 months, leaving 7.5 months to serve - The Crown appealed respecting the credit for PSC - The Manitoba Court of Appeal allowed the appeal - Given the accused's conduct while on remand, including a disciplinary infraction for assaulting another inmate, and the lack of participation in programming without explanation, the court declined to award the accused enhanced credit, but only 1:1 credit for his PSC - That variation resulted in a sentence of 13 months commencing on the date of sentencing - See paragraphs 1 to 10 and 101 to 115.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - The Crown appealed a sentencing judge's granting of enhanced credit for pre-sentencing custody (PSC) under s. 719(3.1) of the Criminal Code using a 1.5:1 ratio - The Manitoba Court of Appeal discussed the standard of review - The court stated that in this case, in determining the meaning of the words in s. 719(3.1), the sentencing judge was engaged in an exercise of statutory interpretation - Questions involving statutory interpretation were questions of law governed by the standard of review of correctness - The court stated that provided the sentencing judge had correctly interpreted the law, the application of the correct interpretation of that law to the individual accused and the facts of a case was an exercise in discretion that was entitled to considerable deference - See paragraphs 26 to 30.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - Section 719(3) of the Criminal Code (as amended in 2010) provided that credit for pre-sentencing custody (PSC) would be at the rate of 1:1 - Section 719(3.1) provided that despite subsection (3), if the circumstances justified it, credit of up to 1.5:1 could be awarded - The Manitoba Court of Appeal agreed that the amendments were passed to change the routine crediting for PSC on a 2:1 ratio - That general rule of thumb was scrapped in all circumstances - The court stated that the amendments were clear that such enhanced credit was not available to offenders who had been denied judicial interim release primarily because of their prior criminal record or because they had breached their conditions of release or committed an indictable offence while on bail - Otherwise the act was silent as to when circumstances could justify an award of enhanced credit under s. 791(3.1) - See paragraphs 31 to 34.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - Section 719(3.1) of the Criminal Code was amended in 2010 to provide that credit for pre-sentencing custody at the ratio of 1.5:1 could be awarded only "if the circumstances justify it" - The court discussed the meaning of the phrase "if the circumstances justify it" - See paragraphs 31 to 85 - The Manitoba Court of Appeal concluded that "... a reading of the provision in a holistic manner leads to the conclusion that the circumstances justifying enhanced credit need not be exceptional. However, they do need to be individual to the accused. Loss of remission and statutory release may be individual circumstances justifying enhanced credit where the accused can bring evidence to the court that, had he or she been a sentenced inmate, they would have most probably received remission and/or statutory release. Just because the circumstance will be applicable to many, if not most, accused does not mean it cannot be a circumstance relevant to an individual accused ..." - See paragraphs 84 and 111.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - Section 719(3.1) of the Criminal Code was amended in 2010 to provide that credit for pre-sentencing custody at the ratio of 1.5:1 could be awarded only "if the circumstances justify it" - The court discussed the meaning of the phrase "if the circumstances justify it" - The Manitoba Court of Appeal held that the circumstances did not have to be "exceptional" - The court noted that some of the arguments based on importing the requirement of exceptional circumstances into s. 719(3.1) might be due to the fact that a marginal note labeled "Exception" preceded s. 719(3.1) - The court stated that it would give no weight to the marginal note - Marginal notes were not part of the enactment, but were inserted for convenience of reference only - See paragraphs 39 to 41.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - Section 719(3) of the Criminal Code provided that credit for pre-sentencing custody (PSC) would be at the rate of 1:1 - Section 719(3.1) provided that despite subsection (3), if the circumstances justified it, credit up to 1.5:1 could be awarded - The Manitoba Court of Appeal stated that the onus of proof under s. 719 on the balance of probabilities rested on the party seeking to use a ratio other than 1:1 - Thus, the onus rested on the Crown on the balance of probabilities to show cause why credit should be denied or given on less than a 1:1 basis - The onus for enhanced credit beyond 1:1 was on the accused - In both cases, where the general rule of 1:1 was departed from, evidence had to be brought to justify the departure - Credible information and/or hearsay evidence could be tendered - The accused had to demonstrate by credible information or adduced evidence that the enhanced credit should be given - See paragraphs 86 to 94, 112 and 113.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - The Crown appealed a sentencing judge's granting of enhanced credit for pre-sentencing custody (PSC) under s. 719(3.1) of the Criminal Code using a 1.5:1 ratio - The Manitoba Court of Appeal allowed the appeal - The court held that the sentencing judge's reasons were inadequate - The judge indicated that issues of fairness required the enhanced credit - However, with respect to the reasons for granting enhanced credit, other than the loss of remission, it was not clear what issues of fairness the sentencing judge relied upon to come to her decision - While the inadequacy of reasons for giving enhanced credit did not invalidate the sentence, the error in principle meant that the appeal court owed no deference to the sentencing judge's decision to award enhanced credit - See paragraphs 95 to 100.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - Section 719(3) of the Criminal Code provided that credit for pre-sentencing custody (PSC) would be at the rate of 1:1 - Section 719(3.1) provided that despite subsection (3), if the circumstances justified it, the maximum credit for PSC of 1.5:1 could be awarded - The Manitoba Court of Appeal stated that PSC credit was not related to the gravity of the offence or the moral blameworthiness of the offender - The determination of credit for PSC was based on other factors related to the circumstances surrounding the accused's remand time as well as his conduct during that period of time, although the court acknowledged that one's criminal record may have some impact on the likelihood of parole - See paragraph 103.

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance - Possession for the purpose of trafficking - [See second Criminal Law - Topic 5848.2 ].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - [See third Criminal Law - Topic 5848.2 ].

Statutes - Topic 1845

Interpretation - Intrinsic aids - Titles, headings and section numbers - Headings and marginal notes - [See sixth Criminal Law - Topic 5848.2 ].

Words and Phrases

If the circumstances justify it - The Manitoba Court of Appeal discussed the meaning of this phrase as it appeared in s. 719(3.1) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 31 to 85.

Cases Noticed:

R. v. Johnson (2011), 268 C.C.C.(3d) 423; 2011 ONCJ 77, refd to. [para. 7].

R. v. McDonald (C.) (1998), 111 O.A.C. 25; 40 O.R.(3d) 641 (C.A.), refd to. [para. 11].

R. v. Wust (L.W.) et al., [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. 13].

United States of America et al. v. Ferras, [2006] 2 S.C.R. 77; 351 N.R. 1; 214 O.A.C. 326; 2006 SCC 33, refd to. [para. 13].

R. v. Orr (C.) (2008), 251 B.C.A.C. 303; 420 W.A.C. 303; 2008 BCCA 76, refd to. [para. 14].

R. v. Sparham (J.A.) (2007), 220 Man.R.(2d) 3; 407 W.A.C. 3; 2007 MBCA 84, refd to. [para. 14].

R. v. Roulette (A.M.), [2008] Man.R.(2d) Uned. 64; 2008 MBCA 113, refd to. [para. 14].

R. v. Hason, 2010 ONCJ 735, refd to. [para. 24].

R. v. Dann (A.C.A.), [2011] N.S.R.(2d) Uned. 84; 2011 NSPC 22, refd to. [para. 24].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 26].

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. 26].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 231 C.C.C.(3d) 310; 2008 SCC 31, refd to. [para. 26].

R. v. Benson (M.) et al. (2012), 284 Man.R.(2d) 204; 555 W.A.C. 204; 2012 MBCA 94, refd to. [para. 26].

R. v. Farrah (D.) (2011), 268 Man.R.(2d) 112; 520 W.A.C. 112; 2011 MBCA 49, refd to. [para. 27].

R. v. Rémillard (R.) et al. (2009), 251 Man.R.(2d) 17; 478 W.A.C. 17; 2009 MBCA 112, refd to. [para. 29].

R. v. Carvery (L.A.) (2012), 321 N.S.R.(2d) 321; 1018 A.P.R. 321; 2012 NSCA 107, refd to. [para. 29].

R. v. Mayers (A.W.) (2011), 310 B.C.A.C. 188; 526 W.A.C. 188; 2011 BCCA 365, refd to. [para. 32].

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. 38].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 38].

R. v. Vittrekwa (G.), [2011] Yukon Cases Uned. 64; 275 C.C.C.(3d) 193; 2011 YKTC 64, refd to. [para. 40].

Imperial Oil Ltd. v. Minister of National Revenue, [2006] 2 S.C.R. 447; 353 N.R. 201; 2006 SCC 46, refd to. [para. 41].

R. v. Haly (S.), [2012] O.T.C. Uned. 2302; 2012 ONSC 2302, refd to. [para. 44].

R. v. Mullins (P.E.) (2011), 388 Sask.R. 221; 2011 SKQB 478, refd to. [para. 44].

R. v. Auger, 2012 QCCQ 568, refd to. [para. 44].

R. v. Oates, 2012 ONCJ 461, refd to. [para. 44].

R. v. A.S., [2012] O.T.C. Uned. 843; 2012 ONSC 843, refd to. [para. 44].

R. v. Seymour (C.W.), [2011] B.C.T.C. Uned. 1682; 2011 BCSC 1682, refd to. [para. 44].

R. v. Guo, 2011 QCCQ 10469, refd to. [para. 44].

R. v. J.B., 2011 BCPC 158, refd to. [para. 44].

R. v. Clayton (D.J.) (2012), 540 A.R. 226; 2012 ABQB 333, refd to. [para. 44].

R. v. Dingwell (D.A.) (2012), 321 Nfld. & P.E.I.R. 263; 996 A.P.R. 263; 2012 PESC 13, refd to. [para. 44].

R. v. B.R.S., 2011 ONCJ 484, refd to. [para. 44].

R. v. Sabatine, 2012 ONCJ 310, refd to. [para. 44].

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. 44].

R. v. House (Z.C.) (2012), 319 Nfld. & P.E.I.R. 197; 992 A.P.R. 197 (N.L. Prov. Ct.), refd to. [para. 44].

R. v. Sharkey (R.), [2011] B.C.T.C. Uned. 1541; 2011 BCSC 1541, refd to. [para. 44].

R. v. Mozumdar, 2012 ONCJ 151, refd to. [para. 44].

R. v. Przybyla (P.), [2012] A.R. Uned. 473; 2012 ABPC 183, refd to. [para. 44].

R. v. Lefranུois, 2012 QCCQ 5655, refd to. [para. 44].

R. v. Leggo (R.) (2012), 317 Nfld. & P.E.I.R. 252; 986 A.P.R. 252 (N.L. Prov. Ct.), refd to. [para. 45].

R. v. Morris (K.A.), [2011] O.T.C. Uned. 5206; 2011 ONSC 5206, refd to. [para. 45].

Németh v. Canada (Minister of Justice), [2010] 3 S.C.R. 281; 408 N.R. 198; 2010 SCC 56, refd to. [para. 58].

R. v. Desjarlais (V.), [2012] Northwest Terr. Cases Uned. 2; 2012 NWTTC 2, refd to. [para. 72].

R. v. W.M. (2010), 290 B.C.A.C. 154; 491 W.A.C. 154; 2010 BCCA 370, refd to. [para. 75].

R. v. English (J.) (2012), 328 Nfld. & P.E.I.R. 14; 1019 A.P.R. 14; 2012 NLCA 64, refd to. [para. 75].

R. v. D.W.J., 2012 BCPC 15, refd to. [para. 87].

R. v. Sousa (B.), [2011] O.T.C. Uned. 6463; 2011 ONSC 6463, refd to. [para. 87].

R. v. Abubeker, 2011 ONCJ 337, refd to. [para. 87].

R. v. Gosselin, 2011 QCCQ 11688, refd to. [para. 87].

R. v. Roulette (P.) (2005), 201 Man.R.(2d) 148; 366 W.A.C. 148; 2005 MBCA 149, refd to. [para. 88].

R. v. Wheeler (C.P.) (2011), 315 Nfld. & P.E.I.R. 25; 981 A.P.R. 25 (N.L. Prov. Ct.), refd to. [para. 90].

R. v. Roberts, 2011 BCPC 329, refd to. [para. 90].

R. v. Jones (D.A.), [2011] O.T.C. Uned. 5330; 2011 ONSC 5330, refd to. [para. 90].

R. v. Sparkes (W.L.) (2011), 315 Nfld. & P.E.I.R. 71; 981 A.P.R. 71 (N.L. Prov. Ct.), refd to. [para. 90].

R. v. Cull (M.J.) (2011), 311 Nfld. & P.E.I.R. 295; 967 A.P.R. 295 (N.L. Prov. Ct.), refd to. [para. 90].

R. v. Lee (A.S.) (2011), 312 Nfld. & P.E.I.R. 162; 971 A.P.R. 162 (N.L. Prov. Ct.), refd to. [para. 90].

R. v. Robertson, 2012 QCCS 1027, refd to. [para. 90].

R. v. Hindmarch (D.L.), [2010] B.C.T.C. Uned. 1257; 1 M.V.R.(6th) 131; 2010 BCSC 1257, refd to. [para. 90].

R. v. Joseph (D.W.) (2012), 326 B.C.A.C. 312; 554 W.A.C. 312; 2012 BCCA 359, refd to. [para. 91].

R. v. Zhu, 2011 ONCJ 163, refd to. [para. 92].

R. v. Edwards, 2012 ONCJ 519, refd to. [para. 92].

R. v. I.T.W., 2012 BCPC 305, refd to. [para. 93].

R. v. Oddleifson (J.N.) (2010), 255 Man.R.(2d) 68; 486 W.A.C. 68; 2010 MBCA 44, leave to appeal denied (2010), 413 N.R. 389; 268 Man.R.(2d) 319; 520 W.A.C. 319 (S.C.C.), refd to. [para. 96].

R. v. Chicoine, 2012 QCCA 1621, refd to. [para. 97].

R. v. Irvine (C.W.) (2008), 225 Man.R.(2d) 281; 419 W.A.C. 281; 2008 MBCA 34, refd to. [para. 99].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 719(3), sect. 719(3.1), sect. 719(3.2), sect. 719(3.3), sect. 719(3.4) [para. 16].

Truth in Sentencing Act, S.C. 2009, c. 29, sect. 3 [para. 16].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates, Standing Committee on Justice and Human Rights, Evidence, No. 20, 2nd Sess., 40th Parliament (May 6, 2009), p. 11 [para. 42].

Canada, Hansard, House of Commons Debates, Standing Committee on Justice and Human Rights, Evidence, No. 27, 2nd Sess., 40th Parliament (June 1, 2009), p. 2 [para. 14].

Côté, Pierre André, Beaulac, Stéphane, and Devinat, Mathieu, Interpretation of Legislation in Canada (4th Ed. 2011), pp. 73, 74 [para. 41]; 453 to 468 [para. 59].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 38].

Hansard - see Canada, Hansard, House of Commons Debates.

Ruby, Clayton C., Chan, Gerald J., and Hasan, Nader R., Sentencing (8th Ed. 2012), para. 13.38 [para. 52]; 13.39 [para. 50].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 364 [para. 78]; 397 to 400 [para. 41]; 593 to 618 [para. 59].

Counsel:

C.J. Mainella and G.H. Bayly, for the appellant;

D. Manning, for the respondent.

This appeal was heard on November 2, 2011, before Steel, Hamilton and Beard, JJ.A., of the Manitoba Court of Appeal. The following decision was delivered for the court on December 13, 2012, by Steel, J.A.