Case: R. v. Slack, 2015 ONCA 94

Keywords: Sentencing, credit, pre-sentence custody, behaviour, mandatory minimums

Synopsis: Accused was sentenced to 8 years’ imprisonment for a series of weapons-related convictions and 2 years’ imprisonment for breach of probation, less 1:1 credit for 433 days of pre-sentence custody. He appeals his sentence on two grounds. First, the judge refused to granted enhanced credit at the rate of 1.5:1 because the accused had three misconducts while in custody. Second, the judge used the 5-year mandatory minimum as a sentencing floor (which was subsequently held to be unconstitutional). Cronk J.A. writing for the Court of Appeal allowed the appeal in part with respect to the enhanced credit.

Importance: This case proceeded in a tumultuous time with respect to enhanced credit and minimum sentencing. At the time of sentencing, R. v. Summers, 2013 ONCA 147 (credit for pre-sentence detention) was under appeal at the Supreme Court of Canada and the Ontario Court of Appeal had not yet released R. v. Nur, 2013 ONCA 677 and R. v. Charles, 2013 ONCA 681 (mandatory minimums). The SCC released its decision in Summers on April 11, 2014 and we are still awaiting the decision in Nur and Charles, appeal heard November 7, 2014.

The SCC confirmed in Summers that the loss of early release will generally on its own warrant enhanced credit for pre-sentence custody, even if the conditions of detention are not particularly harsh, and parole is unlikely. However, if a sentencing judge believes that an offender will be denied early release, then there is no reason to assign enhanced credit for meaningless lost opportunity.

The Court in the present case goes on to apply Summers and demonstrates that despite the discretionary nature of enhanced credit decisions, it is rare that enhanced credit will be denied where a person’s pre-sentence custody gives rise to the inference that he or she had lost eligibility for parole or statutory release. Such an inference justifies enhanced credit and it then falls to the Crown to prove that the person’s “bad conduct while detained would disentitle him [or her] to parole or statutory release.”

While the appellant in the present case had 3 documented incidents of misconduct during pre-sentence detention (marijuana odour in cell, possession of contraband and making a gross insult at another person), there was not enough evidence to justify denying enhanced credit:

In my view, given the nature of the thin record of institutional misconduct by the appellant, it cannot be said that the Crown demonstrated that the appellant’s institutional misconduct would disentitle him to parole or statutory release. (para. 14)

The evidence of a detained person’s institutional misconduct must reasonably support the inference that he or she would likely be denied parole or statutory release based on bad conduct. It must be more than minor instances of misconduct. In the case of federally-incarcerated offenders, it would have to be demonstrated that the offender if released is “is likely to commit an offence causing harm or death, a sexual offence involving a child, or a serious drug offence”. Note that this may differ in the case of provincially-incarcerated offenders whose good bahaviour earns them statutory remission.

With respect to the sentencing “floor” ground of appeal, Cronk J.A. states that even with the mandatory three-year minimum sentence declared unconstitutional, nothing displaces the developed sentencing range applicable to offenders convicted of a second or subsequent weapons-related offence:

Both Nur and Charles affirm that offenders convicted of “truly criminal conduct” in relation to firearms must receive exemplary sentences that emphasize deterrence and denunciation. (para. 23)

This decision provides an example of what would constitute as falling at the “true crime” end of s. 95 (possession of prohibited or restricted firearm with ammunition) offences. Aggravating factors to justify a higher sentence include the firearm being loaded in an unlocked car in a public lot in daytime, the offence being more than a regulatory of licensing one, the accused fleeing the scene and trying to cover up afterwards, and a past criminal record.

Counsel for Appellants: Erika Chozik (Chozik Law, Ottawa)

Counsel for Respondent: Cate Martell (Crown Law Office Criminal, Toronto)

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