R. v. Morris, 2011 ONSC 5206 (CanLII)
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[22] The parties agree that the applicable provisions are sections 719(3) and (3.1) of the Criminal Code. These provisions, which came into force on February 22, 2010, allow enhanced credit for pre-sentence custody to a maximum of 1.5:1 provided that (i) “the circumstances justify it”, and (ii) the person was not detained for reasons under s. 515(9.1) or under subsections 524(4) or (8):
[31] In my view, it is clear from a reading of ss. 719(3) and (3.1) that the general rule is that credit be given “up to 1:1”. Enhanced credit of 1.5:1 pursuant to subsection (3.1) is the exception. The general rule is articulated first and the exception follows. I am unable to accept Mr. Rippell’s argument that, in effect, the norm should be enhanced credit whenever the offender has served pre-sentence time.
[32] There is no ambiguity, in my view, that would justify such a departure from the clear wording of the statute. There is also no basis, or indeed justification, for this court to interpret this provision on the assumption that Parliament was not aware of the effect this provision would have on actual time served. Law-makers are presumed to enact legislation for a particular purpose, with consequences of which they are not only aware, but also, of which they approve as the means to achieving a particular end: to which the parties referred, addresses the principle that:
A second dimension endorsed by the modern principle [of statutory interpretation] is legislative intent. All texts, indeed all utterances, are made for a reason…. In at p. 2 the case of legislation, the law-maker wants to communicate the law that it intended to enact because that law, as set out in the provisions of a statute or regulation, is the means chosen by the law-maker to achieve a set of desired goals. Law-abiding readers (including those who administer or enforce the legislation and those who resolve disputes) try to identify the intended goals of the legislation and the means devised to achieve those goals, so that they can act accordingly. [Emphasis added.] (Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont: LexisNexis Canada Inc., 2008), at p. 2. ).
[33] In this case, it is clear that Parliament would have known that enacting s. 719(3) using the language it chose to use would have the effect of restricting judges from giving any greater credit than one day for each day served in pre-trial custody. Parliament must have intended that enacting such a restriction would increase actual time served when compared to the previous, common practice of giving 2:1 credit, as a mandatory limit on time credited could have no other consequence but increasing the total time served.
[34] Similarly, Parliament would have known that by enacting subsection (3.1) using the phrase “despite subsection (3)”, that it would create an exception, and not a replacement, to subsection (3) “if the circumstances justify it”. Parliament would not have created an exception that was meant, in practice, to displace the very rule it created in the previous subsection.
[35] The defence position that 1.5:1 is to be the default would leave only (i) the absolute bars and (ii) the judicial discretion to reduce credit below 1.5:1 where, traditionally, judges have refused to grant enhanced credit (such as where the accused has unduly lengthened his or her pre-sentence custody by manipulating the justice system).
[36] In effect, the defence interpretation would read out the sub-clause in the first line of subsection (3.1): “if the circumstances justify it”. It would also make subsection (3) redundant. Neither of these consequences is consistent with the basic presumption that language in a statute has meaning.
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