R. v. Wust (L.W.), (2000) 134 B.C.A.C. 236 (SCC)

• Judge: Gonthier, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 09, 1999
• Jurisdiction: Canada (Federal)
• Citations: (2000), 134 B.C.A.C. 236 (SCC);2000 SCC 18;[2000] 1 SCR 455;134 BCAC 236;32 CR (5th) 58;EYB 2000-17652;184 DLR (4th) 385;JE 2000-832;[2000] SCJ No 19 (QL);[2000] ACS no 19;252 NR 332;143 CCC (3d) 129;45 WCB (2d) 492

R. v. Wust (L.W.) (2000), 134 B.C.A.C. 236 (SCC);

    219 W.A.C. 236

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2000] B.C.A.C. TBEd. AP.011

Lance William Wust (appellant) v. Her Majesty The Queen (respondent) and The Attorney General for Ontario (intervener)

(26732; 2000 SCC 18)

Indexed As: R. v. Wust (L.W.)

Supreme Court of Canada

Gonthier, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour, JJ.

April 13, 2000.

Summary:

Wust pleaded guilty to robbery while using a firearm and possession of a restricted weapon. The Criminal Code prescribed a minimum four year sentence for the first offence.

The British Columbia Supreme Court, in a decision reported at [1997] B.C.T.C. Uned. 348, credited Wust for time served and sentenced him to 3.5 years for the robbery and one year concurrent for the weapons conviction. The Crown appealed the sen­tence.

The British Columbia Court of Appeal, in a decision reported at 107 B.C.A.C. 130; 174 W.A.C. 130, allowed the appeal, holding that a sentence of at least four years had to be imposed. Wust appealed.

The Supreme Court of Canada allowed the appeal and reinstated the decision of the trial judge. The court held that a sentencing court could deduct from the sentence imposed on an accused, the time that the accused spent in custody awaiting trial and sentence, even if doing so reduced the sentence to less than the minimum provided by law.

Criminal Law - Topic 5805

Sentencing - General - Statutory range mandatory (incl. mandatory minimum sentence) - The Supreme Court of Canada held that a sentencing court could deduct from the sentence imposed on an accused, the time that the accused spent in custody awaiting trial and sentence, even if doing so reduced the sentence to less than the minimum provided by law.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - [See Criminal Law - Topic 5805 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - At issue was whether a sentencing court could deduct from the sentence imposed on an accused, the time that the accused spent in custody awaiting trial and sentence, even if doing so reduced the sentence to less than the minimum provided by law - Arbour, J., for the Supreme Court of Canada, stated that "... pre-sentencing custody, pre-trial custody, pre-disposition custody and 'dead time' are all used to refer to the time spent by an accused person in detention prior to conviction and sentencing. For the pur­poses of this decision, I consider all these terms to refer to the same thing; however, I prefer 'pre-sentencing custody' as it most accurately captures all the time an offender may have spent in custody prior to the imposition of sentence." - See paragraph 29.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - The Supreme Court of Canada stated that "[i]n the past, many judges have given more or less two months credit for each month spent in pre-sentencing detention. This is entirely appropriate even though a different ratio could also be applied, for example if the accused has been detained prior to trial in an institution where he or she has had full access to educational, vocational and rehabilitation programs. The often applied ratio of 2:1 reflects not only the harshness of the detention due to the absence of programs, which may be more severe in some cases than in others, but reflects also the fact that none of the remission mecha­nisms contained in the Corrections and Conditional Release Act apply to that period of detention. 'Dead time' is 'real' time. The credit cannot and need not be determined by a rigid formula and is thus best left to the sentencing judge, who remains in the best position to carefully weigh all the factors which go toward the determination of the appropriate sentence, including the decision to credit the offender for any time spent in pre-sen­tencing custody." - See paragraph 45.

Criminal Law - Topic 5855

Sentence - Robbery - Wust, aged 22, robbed a gas station of $780 while armed with a loaded nine mm. semiautomatic pistol - He struck the cashier several times on the head with his fist - Thirty criminal and youth court convictions - Under fire­arms prohibition at time of offence - Pleaded guilty - The trial judge would have imposed 4.5 years for robbery, but instead imposed 3.5 years (giving credit for time served) and one year concurrent for possession of a restricted weapon - The Criminal Code prescribed a minimum four year sentence for robbery while using a firearm - The British Columbia Court of Appeal held that the trial judge could not reduce the sentence to less than four years and increased the sentence to four years - The accused appealed - The Supreme Court of Canada allowed the appeal and reinstated the decision of the trial judge.

Statutes - Topic 1803

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions - The Supreme Court of Canada interpreted both the French and English versions of ss. 344(a), 718.3(1) and 719(3) of the Crimi­nal Code in determining whether a sen­tencing court could deduct from the sen­tence imposed on an accused, the time that the accused spent in custody awaiting trial and sentence, even if doing so reduced the sentence to less than the minimum pro­vided by law - See paragraphs 35 to 37.

Statutes - Topic 8406

Penal statutes - General principles - Am­biguity resolved in favour of accused - At issue was whether a sentencing court could deduct from the sentence imposed on an accused, the time that the accused spent in custody awaiting trial and sentence, even if doing so reduced the sentence to less than the minimum provided by law - The Supreme Court of Canada, referred to an Ontario Court of Appeal decision, and approved that court's "... reference to the principle that provisions in penal statutes, when ambiguous, should be interpreted in a manner favourable to the accused ...; to the need to interpret legislation so as to avoid conflict between its internal pro­visions, to avoid absurd results by search­ing for internal coherence and consistency in the statute; and finally, where a pro­vision is capable of more than one inter­pretation, to choose the interpretation which is consistent with the Charter ..." - See paragraph 34.

Statutes - Topic 8410

Penal statutes - General principles - Inter­pretation of - [See Statutes - Topic 8406 ].

Cases Noticed:

R. v. Alain (1997), 119 C.C.C.(3d) 177 (Que. C.A.), not folld. [para. 4].

R. v. LaPierre (1998), 123 C.C.C.(3d) 332 (Que. C.A.), not folld. [para. 4].

R. v. Sanko (D.) (1998), 56 O.T.C. 359 (Gen. Div.), not folld. [para. 5].

R. v. Morrisey (M.L.) (No. 2) (1998), 167 N.S.R.(2d) 43; 502 A.P.R. 43; 124 C.C.C.(3d) 38 (C.A.), not folld. [para. 5].

R. v. McDonald (C.) (1998), 111 O.A.C. 25; 127 C.C.C.(3d) 57 (C.A.), folld. [para. 7].

R. v. Brown (1976), 36 C.R.N.S. 246 (Ont. Co. Ct.), not folld. [para. 7].

R. v. Mills (D.J.) (1999), 119 B.C.A.C. 284; 194 W.A.C. 284; 133 C.C.C.(3d) 451 (C.A.), folld. [para. 8].

R. v. Arthurs (K.N.) (2000), 252 N.R. 325 (S.C.C.), refd to. [para. 16].

R. v. Arrance (C.R.) (2000), 252 N.R. 319 (S.C.C.), refd to. [para. 16].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321; 34 C.C.C.(3d) 97; 40 D.L.R.(4th) 435; [1987] 5 W.W.R. 1; 58 C.R.(3d) 193; 15 B.C.L.R.(2d) 273, refd to. [para. 18].

R. v. Goltz, [1991] 3 S.C.R. 485; 131 N.R. 1; 5 B.C.A.C. 161; 11 W.A.C. 161; 67 C.C.C.(3d) 481; 7 C.R.R.(2d) 1; 8 C.R.(4th) 82; 61 B.C.L.R.(2d) 145, refd to. [para. 18].

R. v. Bill (L.D.), [1997] B.C.T.C. Uned. J23; 13 C.R.(5th) 103 (S.C.), refd to. [para. 19].

R. v. Leimanis, [1992] B.C.J. No. 2280 (Prov. Ct.), refd to. [para. 19].

R. v. Pasacreta, [1995] B.C.J. No. 2823 (Prov. Ct.), refd to. [para. 19].

R. v. Chief (1989), 51 C.C.C.(3d) 265 (Y.T.C.A.), refd to. [para. 20].

R. v. McGillivary (1991), 89 Sask.R. 289; 62 C.C.C.(3d) 407 (C.A.), refd to. [para. 20].

R. v. Hainnu, [1998] N.W.T.J. No. 101 (S.C.), refd to. [para. 20].

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; 105 C.C.C.(3d) 327, refd to. [para. 21].

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. 21].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 23].

R. v. Patterson (1947), 87 C.C.C. 86 (Ont. C.A.), refd to. [para. 23].

R. v. Sloan (1947), 87 C.C.C. 198 (Ont. C.A.), refd to. [para. 23].

R. v. Rezaie (M.) (1996), 96 O.A.C. 268; 31 O.R.(3d) 713; 112 C.C.C.(3d) 97 (C.A.), refd to. [para. 28].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81; 95 C.C.C.(3d) 481; 36 C.R.(4th) 171, refd to. [para. 34].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 34].

R. v. Pearson (E.), [1992] 3 S.C.R. 665; 144 N.R. 243; 52 Q.A.C. 1; 77 C.C.C.(3d) 124; 17 C.R.(4th) 1, refd to. [para. 39].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 344(a), sect. 718.1, sect. 718.2(b), sect. 718.3, sect. 719(1), sect. 719(3), sect. 719(4) [para. 17].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates (February 5, 1971), p. 3118 [para. 31].

Canada, Hansard, House of Commons Debates (February 16, 1995), p. 9706 et seq. [para. 32].

Canada, Sentencing Reform Commission (1987), Sentencing Reform: A Canadian Approach, p. 110 et seq. [para. 36].

Friedland, Martin L., Detention Before Trial, A Study of Criminal Cases Tried in the Toronto Magistrates' Court (1965), p. 104 [para. 30].

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

Trotter, Gary, The Law of Bail in Canada (2nd Ed. 1999), p. 37 [para. 41].

Counsel:

Harry G. Stevenson, for the appellant;

Peter W. Ewert, Q.C., and Geoffrey R. Gaul, for the respondent;

David Finley, for the intervener the At­torney General for Ontario.

Solicitors of Record:

Harry G. Stevenson, Vancouver, British Columbia, for the appellant;

The Ministry of the Attorney General, Vancouver, British Columbia, for the respondent;

The Ministry of the Attorney General, Toronto, Ontario, for the intervener.

This appeal was heard on November 9, 1999, by Gonthier, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour, JJ., of the Supreme Court of Canada. Arbour, J., delivered the following decision for the Court on April 13, 2000.