R. v. Fice

R. v. Fice
Collection
Supreme Court Judgments
Date
2005-05-20
Neutral citation
2005 SCC 32
Report
[2005] 1 SCR 742
Case number
29965
Judges
McLachlin, Beverley; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 29965
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Fice, [2005] 1 S.C.R. 742, 2005 SCC 32
Date: 20050520
Docket: 29965
Between:
Her Majesty the Queen
Appellant
v.
Lynn Fice
Respondent
Coram: McLachlin C.J. and Major, Bastarache, Binnie, Deschamps, Fish and Abella JJ.
Reasons for Judgment:
(paras. 1 to 46)
Dissenting reasons:
(paras. 47 to 82)
Bastarache J. (McLachlin C.J. and Major, Binnie and Abella JJ. concurring)
Fish J. (Deschamps J. concurring)
______________________________
R. v. Fice, [2005] 1 S.C.R. 742, 2005 SCC 32
Her Majesty The Queen Appellant
v.
Lynn Fice Respondent
Indexed as: R. v. Fice
Neutral citation: 2005 SCC 32.
File No.: 29965.
2005: January 13; 2005: May 20.
Present: McLachlin C.J. and Major, Bastarache, Binnie, Deschamps, Fish and Abella JJ.
on appeal from the court of appeal for ontario
Criminal law — Sentencing — Conditional sentences — Whether pre-sentence custody should affect sentencing judge’s determination of availability of conditional sentence — Criminal Code, R.S.C. 1985, c. C-46, ss. 719(3) , 742.1 .
The accused pleaded guilty to aggravated assault, fraud, personation, forgery and breach of recognizance. At the time of sentencing, she had spent approximately 16 months in pre-sentence custody and six months in a circumstance of house arrest. Defence counsel conceded that a penitentiary sentence would have been appropriate had it been imposed at the time of arrest. The sentencing judge considered the accused’s pre‑sentence custody to be the equivalent of almost three years of incarceration and concluded that she should serve an additional 14 months in the community on certain conditions. The Court of Appeal upheld the conditional sentence. Relying on the plain meaning of the language of ss. 742.1 and 719(3) of the Criminal Code , the court concluded that these provisions allow the sentencing judge to take pre-sentence custody into account in determining the range of sentence under the conditional sentencing regime.
Held (Deschamps and Fish JJ. dissenting): The appeal should be allowed.
Per McLachlin C.J. and Major, Bastarache, Binnie and Abella JJ.: The sentencing judge erred in imposing a conditional sentence. Under s. 742.1 of the Criminal Code , such a sentence cannot become available to an offender who otherwise deserves a penitentiary term solely because of the time the offender has spent in pre-sentence custody. The conditional sentence regime was not designed for those offenders for whom a penitentiary term is appropriate. When a sentencing judge considers the gravity of the offence and the moral blameworthiness of the offender and concludes that a sentence in the penitentiary range is warranted and that a conditional sentence is therefore unavailable, time spent in pre‑sentence custody ought not to disturb this conclusion.
Section 742.1 provides that a sentence of imprisonment of less than two years must be imposed before a conditional sentence can be authorized. The Proulx approach to s. 742.1 requires a sentencing judge to proceed in two stages. At the first stage, the judge must determine if a conditional sentence is available. In doing so, the judge need not impose a term of imprisonment of a fixed duration; rather, he need only exclude two possibilities: probationary measures and a penitentiary term. If a conditional sentence is available, the judge must, at the second stage, determine if it is appropriate. The time spent in pre‑sentence custody ought to be taken into account at the second stage of the analysis with respect to the duration of the sentence, not at the first stage with respect to sentence range. To hold otherwise would run counter to the nature of the conditional sentencing regime, as it was defined in Proulx. The time spent in pre-sentence custody should be considered part of the offender’s total punishment rather than a mitigating factor that can affect the range of sentence and the availability of a conditional sentence. Furthermore, under the Proulx approach, s. 742.1(a) should not be construed literally. The requirement in s. 742.1(a) that the court impose “a sentence of imprisonment of less than two years” must be interpreted purposively, and it is fulfilled by a preliminary determination of the appropriate range of available sentences.
The judicial discretion, provided for in s. 719(3) of the Code, to consider the time spent in pre-sentencing custody in determining the sentence to be imposed does not mean that the requirement in s. 742.1(a) refers only to the actual time to be spent in jail after sentencing; rather, this requirement refers to the total time taken into account by the sentencing judge in determining the degree of punishment warranted by the gravity of the offence and the moral blameworthiness of the offender.
Per Deschamps and Fish JJ. (dissenting): The Court of Appeal’s reasons and its conclusion that a conditional sentence was available in this case are agreed with. A sentence of less than two years is not transformed into a sentence of more than two years for the purpose of s. 742.1 (a) of the Criminal Code simply because the trial judge took into account, in imposing the sentence of less than two years, time already spent in custody as a result of the offence. When the offence is not punishable by a minimum term of imprisonment, a court is empowered by s. 742.1 , in the plainest of terms, to impose a conditional sentence whenever it imposes a sentence of less than two years and is satisfied that serving the sentence in the community meets the test set out in s. 742.1 (b). A court that might otherwise have imposed a sentence of more than two years is authorized by s. 719(3) of the Code to impose a sentence of less than two years where a longer term of imprisonment would be excessive, bearing in mind the time already spent in custody as a result of the offence. From a statutory point of view, the resulting sentence of less than two years clearly satisfies s. 742.1 (a). Nothing in Proulx precludes the imposition of a conditional sentence where, as here, the statutory conditions are met.
Cases Cited
By Bastarache J.
Applied: R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; referred to: R. v. Wu, [2003] 3 S.C.R. 530, 2003 SCC 73; R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18; R. v. McDonald (1998), 127 C.C.C. (3d) 57; R. v. Knoblauch, [2000] 2 S.C.R. 780, 2000 SCC 58; R. v. Predenchuk (2000), 199 Sask. R. 264, 2000 SKCA 122; R. v. Runns (2002), 165 C.C.C. (3d) 217, 2002 SKCA 48; R. v. Dobis (2002), 58 O.R. (3d) 536; R. v. Persaud (2002), 26 M.V.R. (4th) 41; R. v. Bastien, [2003] R.J.Q. 1695; R. v. McClelland (2001), 281 A.R. 378, 2001 ABCA 182; R. v. La (2003), 15 Alta. L.R. (4th) 56, 2003 ABQB 391; R. v. Skani (2002), 331 A.R. 50, 2002 ABQB 1097; R. v. Brown (2002), 32 M.V.R. (4th) 211, 2002 ABPC 187; R. v. Harris (2002), 167 C.C.C. (3d) 246, 2002 BCCA 152; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42.
By Fish J. (dissenting)
R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C‑46 , Part XXIII, ss. 718, 718.1, 718.2, 719(1), (3), 731(1)(b), 742.1.
Authors Cited
Roberts, Julian V. “Pre-Trial Custody, Terms of Imprisonment and the Conditional Sentence: Crediting ‘Dead Time’ to Effect ‘Regime Change’ in Sentencing” (2005), 9 Can. Crim. L. Rev. 191.
APPEAL from a judgment of the Ontario Court of Appeal (Charron, Moldaver and Feldman JJ.A.) (2003), 65 O.R. (3d) 751, 173 O.A.C. 357, 13 C.R. (6th) 174, 177 C.C.C. (3d) 566, [2003] O.J. No. 2617 (QL), affirming a decision of McLean J., 2002 CarswellOnt 5477. Appeal allowed, Deschamps and Fish JJ. dissenting.
Philip Perlmutter, for the appellant.
D. Edwin Boeve, for the respondent.
The judgment of McLachlin C.J. and Major, Bastarache, Binnie and Abella JJ. was delivered by
Bastarache J. —
I. Overview
1 The issue in this case is whether pre-sentence custody should affect a sentencing judge’s determination of the availability of a conditional sentence. The problem here is one of statutory interpretation. Section 719(3) of the Criminal Code, R.S.C. 1985, c. C-46 , authorizes a court to take into account time spent in custody in determining the sentence to be imposed, while s. 742.1 (a) of the Criminal Code provides that a sentence of imprisonment of less than two years must be imposed before a conditional sentence can be authorized. Does a sentencing judge decide on the availability of a conditional sentence on the basis of the actual time to be spent in jail after sentencing, or the total punishment of the offender, which reflects the degree of punishment warranted by the gravity of the offence and the moral blameworthiness of the offender?
2 Section 742.1 (a) was interpreted in a purposeful manner in R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5. This Court decided that the requirement that the court must impose a sentence of imprisonment of less than two years before a conditional sentence can be authorized should be fulfilled by a preliminary determination of the appropriate range of available sentences. In the course of this determination, the judge need only exclude two possibilities: (a) probationary measures; and (b) a penitentiary term. The judge need not impose a term of imprisonment of a fixed duration in the first stage of the application of s. 742.1 (a). Thus, it can be stated that the object of the requirement in s. 742.1 (a) is to exclude categories of offenders from the conditional sentencing regime on the basis of the range of sentence that would apply to them. In particular, offenders for whom probation or a penitentiary sentence would be considered appropriate are barred from receiving a conditional sentence.
3 In my view, this interpretation of s. 742.1 (a) is determinative of the issue in the present case. Here, the respondent pleaded guilty to aggravated assault, fraud over $5,000, personation, forgery and breach of recognizance. Defence counsel conceded that a penitentiary sentence was otherwise warranted but urged a conditional sentence be imposed because of the time spent in pre-sentence custody. The respondent had spent approximately 16 months in pre-sentence custody and six months in a circumstance of house arrest at the time of sentencing. Without addressing the Crown’s argument that it was not open to him as a matter of law to impose a conditional sentence, the sentencing judge considered the respondent’s pre-sentence custody to be the equivalent of almost three years of incarceration. He then concluded that the respondent should serve an additional 14 months in the community on certain conditions. The Court of Appeal dismissed the Crown’s appeal: (2003), 65 O.R. (3d) 751.
4 As noted above, defence counsel conceded that a penitentiary sentence was otherwise appropriate. According to this Court’s purposive interpretation of s. 742.1 (a) in Proulx, the respondent therefore fell into a category of offenders that is excluded from the conditional sentencing regime. In my view, the sentencing judge erred in imposing such a sentence. A conditional sentence cannot become available to an offender who otherwise deserves a penitentiary term solely because of the time the offender spends in pre-sentence custody.
II. Relevant Statutory Provisions
5 Criminal Code, R.S.C. 1985, c. C‑46
719. (1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.
. . .
(3) 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.
742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court
(a) imposes a sentence of imprisonment of less than two years, and
(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,
the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3.
III. Analysis
6 The provisions regarding conditional sentences were first considered in Proulx. In that case, Lamer C.J. noted that the conditional sentence was specifically enacted as a new sanction designed to achieve Parliament’s two objectives: (i) reducing the use of prison as a sanction, and (ii) expanding the use of restorative justice principles in sentencing (paras. 15 and 21). He described the conditional sentence as “a meaningful alternative to incarceration for less serious and non-dangerous offenders” (para. 21).
7 After identifying the objectives underlying the new conditional sentencing regime, Lamer C.J. then turned to the criteria, set out in s. 742.1 , that a court must consider before deciding to impose a conditional sentence:
(1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
(2) the court must impose a term of imprisonment of less than two years;
(3) the safety of the community would not be endangered by the offender serving the sentence in the community; and
(4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. [para. 46]
He described the first three criteria as “prerequisites” to any conditional sentence, in that they “answer the question of whether or not a conditional sentence is possible in the circumstances” (para. 47). In the context of this appeal, we are concerned with the second prerequisite — i.e. that the court impose a term of imprisonment of less than two years. This prerequisite is set out in s. 742.1 (a) of the Criminal Code .
8 In his reasons for judgment in Proulx, Lamer C.J. acknowledged that a literal reading of s. 742.1 (a) suggests that the decision to impose a conditional sentence should be made in two distinct stages. He described these two stages as follows:
In the first stage, the judge would have to decide the appropriate sentence according to the general purposes and principles of sentencing (now set out in ss. 718 to 718.2). Having found that a term of imprisonment of less than two years is warranted, the judge would then, in a second stage, decide whether this same term should be served in the community pursuant to s. 742.1 . [para. 50]
9 Nevertheless, Lamer C.J. did not accept this literal interpretation of s. 742.1 (a) and the two-step approach it implied because it would have introduced “a rigidity which is both unworkable and undesirable in practice” (para. 51). He was concerned with two issues in particular.
10 First, he was concerned with the fact that, in practice, “the determination of a term of imprisonment is necessarily intertwined with the decision of where the offender will serve the sentence” (para. 52). For example, he noted that “[a] judge does not impose a fixed sentence of ‘x months’ in the abstract, without having in mind where that sentence will be served” (para. 52). Moreover, when a conditional sentence is chosen, he observed that its duration will depend on the type of conditions imposed. In light of this concern, Lamer C.J. concluded that “the duration of the sentence should not be determined separately from the determination of its venue” (para. 52).
11 Second, Lamer C.J. was concerned that if the rigid, two-step approach implied by a literal reading of s. 742.1 (a) were to be followed, then this could lead to a “penological paradox”, in that the “second step of the analytical process would effectively compromise the principles of sentencing that led to the imposition of a sentence of imprisonment in the first place” (para. 54). He explained that the principle of proportionality, set out in s. 718.1 as the fundamental principle of sentencing, requires that all sentences be proportional to the gravity of the offence and the degree of responsibility of the offender. However, Lamer C.J. noted that
[w]hen a judge — in the first stage decides that a term of imprisonment of “x months” is appropriate, it means that this sentence is proportional. If the sentencing judge decides — in the second stage — that the same term can be served in the community, it is possible that the sentence is no longer proportional to the gravity of the offence and the responsibility of the offender, since a conditional sentence will generally be more lenient than a jail term of equivalent duration. [Emphasis in original; para. 54.]
Therefore, he concluded that the two-step approach implied by a literal reading of s. 742.1 “introduces a rigidity in the sentencing process that could lead to an unfit sentence” (para. 54).
12 On the basis of these two concerns, Lamer C.J. declined to interpret s. 742.1 (a) literally. Instead, he proposed to interpret this provision purposively and said that the requirement that the court impose a sentence of imprisonment of less than two years before a conditional sentence can be authorized
was included to identify the type of offenders who could be entitled to a conditional sentence. At one end of the range, Parliament denied the possibility of a conditional sentence for offenders who should receive a penitentiary term. At the other end, Parliament intended to ensure that offenders who were entitled to a more lenient community measure — such as a suspended sentence with probation — did not receive a conditional sentence, a harsher sanction in this legislative scheme. [para. 55]
13 Therefore, Lamer C.J. held that “the requirement that the court must impose a sentence of imprisonment of less than two years can be fulfilled by a preliminary determination of the appropriate range of available sentences” (para. 58). Of course, the overall approach to s. 742.1 suggested by Lamer C.J. still requires a sentencing judge to proceed in two stages: first, the judge must determine if a conditional sentence is available; if it is, the judge must then determine if it is appropriate. However, at the first stage of this analysis, Lamer C.J. made it clear that the judge need not impose a term of imprisonment of a fixed duration; rather, the judge need only exclude two possibilities: (i) probationary measures, and (ii) a penitentiary term. Lamer C.J. explained that “[i]f either of these sentences is appropriate, then a conditional sentence should not be imposed” (para. 58). In making this preliminary determination, he noted that “the judge need only consider the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 to the extent necessary to narrow the range of sentence for the offender” (para. 59).
14 In this case, it is not argued that a penitentiary sentence was unwarranted; what is argued is that the actual sentence imposed by the sentencing judge was less than two years and that a conditional sentence was therefore available. This argument is not consistent with the conditional sentencing regime, as defined in Proulx, for three reasons.
15 First, the object of the requirement in s. 742.1 (a) is to ensure that a conditional sentence is only available for those offenders who would have otherwise received a sentence of imprisonment of less than two years. Offenders for whom probation or penitentiary sentence would be appropriate are barred from receiving a conditional sentence: see Proulx, at paras. 49 and 55. In his sentencing submissions, defence counsel conceded that a penitentiary sentence would have been appropriate had it been imposed at the time of the respondent’s arrest. The time spent in pre-sentence custody notwithstanding, since the respondent was the type of offender who deserved a penitentiary term, by operation of s. 742.1 (a) and this Court’s interpretation of this requirement in Proulx, a conditional sentence was not available.
16 This conclusion accords with this Court’s caution against “widening the net” of the conditional sentencing regime. In Proulx, Lamer C.J. warned against imposing conditional sentences on offenders who would otherwise have received a non-custodial disposition, since this could undermine Parliament’s objective of reducing incarceration for less serious offenders (para. 56). Similarly, in R. v. Wu, [2003] 3 S.C.R. 530, 2003 SCC 73, Binnie J. for a majority of this Court stated that to imprison an offender in his or her home under punitive conditions purely on the basis of his or her inability to pay a fine would be to widen the net of the conditional sentencing regime, and such widening is repugnant to the regime that was enacted by Parliament (para. 27).
17 Although the cautions against net widening in Proulx and Wu relate to imposing conditional sentences on offenders who would otherwise have received a non-custodial disposition, in my view, this caution should also extend to imposing conditional sentences on offenders who would otherwise have received a penitentiary term, as is the case here. In this regard, I agree with the appellant that in enacting s. 742.1 , Parliament intended to cast a small net and only capture conduct serious enough to attract a sentence of incarceration but not so severe as to warrant a penitentiary term. The limits of this net are clearly defined in s. 742.1 and should not be stretched at either end. Therefore, just as the conditional sentence net should not be stretched to include an offender who simply cannot pay a fine, it should likewise not be stretched to include an offender for whom a penitentiary term would be appropriate were it not for his or her time spent in pre-sentence custody.
18 The second reason why it is inconsistent with the conditional sentencing regime to argue that pre-sentence custody should be taken into account in determining the availability of a conditional sentence is because the time spent in pre-sentence custody is part of the total punishment imposed; it is not a mitigating factor that can affect the range of sentence and therefore the availability of a conditional sentence.
19 In R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18, this Court considered the issue of whether, when Parliament has imposed a mandatory minimum sentence for a certain offence, a sentencing judge may exercise the discretion provided for in s. 719(3) of the Criminal Code and credit time spent in pre-sentence custody when calculating the appropriate sentence, if this has the effect of reducing the sentence pronounced by the court to less than the minimum provided by law. On behalf of this Court, Arbour J. approved of the Ontario Court of Appeal’s decision in R. v. McDonald (1998), 127 C.C.C. (3d) 57, in which Rosenberg J.A., writing for a unanimous court, held that pre-sentence custody could be considered even if such credit resulted in reducing the sentence imposed on conviction below the mandatory minimum, since the total punishment would still equal this minimum.
20 In Wust, Arbour J. stated that “[t]o maintain that pre-sentencing custody can never be deemed punishment following conviction because the legal system does not punish innocent people is an exercise in semantics that does not acknowledge the reality of pre-sentencing custody” (para. 41 (emphasis in original)). In particular, Arbour J. noted the typically harsh nature of pre-sentence custody and its frequent characterization as “dead time” (paras. 28-29). She concluded that “while pre‑trial detention is not intended as punishment when it is imposed, it is, in effect, deemed part of the punishment following the offender’s conviction, by the operation of s. 719(3) ” (para. 41).
21 Applying the reasoning in Wust to the issue in this case, I conclude that the time credited to an offender for time served before sentence ought to be considered part of his or her total punishment rather than a mitigating factor that can affect the range of sentence and therefore the availability of a conditional sentence. If the credit for time served awarded by the sentencing judge in this case is considered part of the respondent’s total punishment, it is clear that this global sum of 50 months’ imprisonment (three years pre-sentence plus 14 months post-sentence) is in the penitentiary range, thus rendering a conditional sentence an impossibility. Treating pre-sentence custody as part of the total punishment imposed also accords with the fact that, for purposes of precedent, the respondent’s “sentence” for the offence she committed will generally be understood to be the global sum of 50 months, rather than the 14 months actually imposed by the sentencing judge.
22 Since the time spent in pre-sentence custody is part of the total punishment imposed, it is clear that it is not a mitigating factor that can affect the range of sentence and therefore the availability of a conditional sentence, as argued by the respondent. This makes sense because the appropriate range of sentence is related to the gravity of the offence or the moral blameworthiness of the offender, and these concepts do not change with the time spent in pre-sentence custody. Let me explain.
23 When considering whether a conditional sentence was warranted in Wu, Binnie J. recognized that such a sentence should only arise for consideration when the gravity of the offence and the degree of responsibility of the offender require a term of imprisonment of less than two years. Specifically, Binnie J. wrote:
Only when the sentencing judge has rejected other sentencing options, such as a conditional discharge, a suspended sentence, probation or a fine, and has concluded that a term of imprisonment of less than two years is required by the gravity of the offence and the degree of responsibility of the offender, does a conditional sentence arise for consideration. [para. 25]
On the basis of this passage from Wu, it is clear to me that the appropriate range of sentence and therefore the availability of a conditional sentence is dependent on the gravity of the offence and the degree of responsibility of the offender. This conclusion is also evident from Lamer C.J.’s reference in Proulx to the “type of offenders” envisaged by Parliament who could be entitled to a conditional sentence (para. 55).
24 The conclusion that the appropriate range of sentence is dependent on the gravity of the offence and the degree of responsibility of the offender begs the question: what effect does pre-sentence custody have on these two concepts? In my view, spending time in custody pre-sentence in no way changes the gravity of the offence, the degree of responsibility of the offender, or, as it was put in Proulx, the “type of offender”. Thus, it is clear that the time spent in pre-sentence custody is not a mitigating factor that can affect the range of sentence and therefore the availability of a conditional sentence.
25 This conclusion also accords with Lamer C.J.’s statement in Proulx that “[i]n making [a] preliminary determination [of the appropriate range of sentence], the judge need only consider the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 to the extent necessary to narrow the range of sentence for the offender” (para. 59). Not only did Lamer C.J. direct that the purpose and principles of sentencing set out in ss. 718 to 718.2 need only be considered in a limited fashion when determining the range of sentence, it is also clear that he did not at all mention s. 719(3) and the discretion it bestows on a judge to take into account pre-sentence custody as a consideration at this stage of the analysis. This further supports the conclusion that time spent in pre-sentence custody should not be considered at the first stage of the analysis with respect to sentence range. This is not to say that time spent in pre-sentence custody is never taken into account. Rather, as I will explain below, this factor is properly considered at the second stage of the analysis with respect to the duration of the sentence.
26 The third reason why it is inconsistent with the conditional sentencing regime to argue that time spent in pre-sentence custody should be taken into account in determining the range of sentence and therefore the availability of a conditional sentence is because this argument, accepted by the Court of Appeal and advanced by the respondent before this Court, is based on a plain reading of the requirement in s. 742.1 (a), and such a reading has already been rejected by this Court.
27 For instance, for a unanimous Court of Appeal in this case, Charron J.A. (as she then was) noted that “[t]he first criterion that must be met under s. 742.1 (a) is that ‘the court imposes a sentence of imprisonment of less than two years’”, and, “[i]n ‘determining the sentence to be imposed’, s. 719(3) allows the court to count pre-sentence custody” (para. 18 (emphasis in original)). Relying on the plain meaning of the language of ss. 742.1 and 719(3) , Charron J.A. concluded that these provisions allow the sentencing judge to take into account pre-sentence custody in determining the range of sentence under the conditional sentencing regime.
28 This conclusion must be rejected because, as discussed above, in Proulx, this Court declined to read s. 742.1 (a) literally and instead gave the requirement that the court “impos[e] a sentence of imprisonment of less than two years” a purposive interpretation, in which it concluded that this requirement should be fulfilled by a preliminary determination of the appropriate range of available sentences (para. 58). It is only after this preliminary determination is made and all other statutory prerequisites are met that the judge should proceed to the second stage of the analysis, in which the duration, venue and, if imposing a conditional sentence, conditions of the sentence are determined (Proulx, at para. 60).
29 In my view, the time spent in pre-sentence custody ought to be considered at the second stage of the analysis with respect to the duration of the sentence rather than at the first stage with respect to sentence range. I have already explained above why the time spent in pre-sentence custody should not affect the range of the sentence. Let me now explain why this factor ought to be considered with respect to the duration of the sentence.
30 First, as noted above, in Proulx, Lamer C.J. held that when the sentencing judge is determining the range of sentence and therefore the availability of a conditional sentence, he or she need not impose a term of imprisonment of fixed duration; rather, the judge need only exclude two possibilities: (a) probationary measures; and (b) a penitentiary term. Therefore, to argue, as the respondent does, that the judge should nonetheless be permitted to take into account the time spent in pre-sentence custody at this stage of the analysis does not make sense, since the judge cannot deduct a specific figure (i.e. the credit for the time served) from a general range of sentence. Instead, the judge ought to apply any credit for time served when he or she finally fixes the duration of the sentence imposed. This will occur in the second stage of the analysis set out in Proulx.
31 Second, in Wust, Arbour J. stated that by holding that s. 719(3) may be applied to mandatory minimum punishments, “this Court can uphold both Parliament’s intention that offenders under s. 344(a) receive a minimum punishment of four years imprisonment and Parliament’s equally important intention to preserve the judicial discretion to consider pre‑sentencing custody under s. 719(3) and ensure that justice is done in the individual case” (para. 9 (emphasis in original)). I agree with the appellant that it can likewise be stated that by holding that pre-sentence custody ought to be considered at the second stage of the Proulx analysis with respect to sentence duration rather than at the first stage with respect to sentence range, this Court can give effect to Parliament’s intention to exclude from the conditional sentencing regime those offenders for whom a penitentiary term would be appropriate, while also honouring “Parliament’s equally important intention to preserve the judicial discretion to consider pre-sentencing custody under s. 719(3) and ensure that justice is done in the individual case” (para. 9).
32 In this regard, it is important to emphasize that there is a significant difference between a conditional sentence of imprisonment in the community and a jail term of equivalent duration, since offenders serving their sentence in the community are only partially deprived of their freedom, and a conditional sentence is not subject to reduction through parole: see Proulx, at paras. 40-44. Because a conditional sentence is conceptually distinct from a jail sentence, I agree with the appellant that it is not inequitable for an offender who warrants a sentence in the penitentiary range and is therefore ineligible for a conditional sentence to find that the duration of his or her sentence is nonetheless reduced by operation of s. 719(3) to a reformatory term of less than two years. In the end, this offender will still have served the jail sentence warranted in respect of the offence. The change in location from a federal to a provincial institution does not change the nature of the sentence, which is one of institutional confinement: see J. V. Roberts, “Pre-Trial Custody, Terms of Imprisonment and the Conditional Sentence: Crediting ‘Dead Time’ to Effect ‘Regime Change’ in Sentencing” (2005), 9 Can. Crim. L. Rev. 191, at p. 207.
33 For all these reasons, I conclude that the time spent in pre-sentence custody should not affect a sentencing judge’s determination of the range of sentence and therefore the availability of a conditional sentence. Rather, it is a factor that ought to be considered in the course of the judge’s determination of the duration of the actual sentence imposed. To hold otherwise would run contrary to the nature of the conditional sentencing regime, as it was defined in Proulx.
34 Besides this Court’s decision in Proulx, the case law regarding the conditional sentencing regime does not assist in resolving the issue of whether pre-sentence custody should affect a sentencing judge’s determination of the range of sentence and therefore the availability of a conditional sentence. For example, in R. v. Knoblauch, [2000] 2 S.C.R. 780, 2000 SCC 58, this Court examined the legality of the conditional sentence originally imposed by the trial judge. In the course of her determination that this sentence was indeed legal and fit, Arbour J., writing for a majority of this Court, noted that
in this case both the trial judge and the Court of Appeal were of the view, which has not been disputed before us, that considering all the circumstances, the appropriate punishment for this offender would have been a sentence of three years of incarceration which was properly reduced to two years less a day to take into account the period spent in pre-trial custody. [para. 16]
In determining the availability of a conditional sentence in these circumstances, Arbour J. briefly addressed the first criterion in s. 742.1 (a) as follows:
There is no dispute, as I indicated earlier, that a sentence of two years less a day was a fit and appropriate sentence in all the circumstances. The first criterion in s. 742.1 of the Code having been satisfied, it remains only to be decided whether the trial judge was entitled to conclude that “serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing”, in accordance with s. 742.1 (b). [Emphasis added; para. 25.]
Given Arbour J.’s comment that the first criterion in s. 742.1 of the Criminal Code (i.e. that a judge impose a sentence of imprisonment of less than two years) was satisfied in this case, despite the fact that but for pre‑sentence custody the appropriate sentence would have been three years and therefore in the penitentiary range, it can be argued that, contrary to my conclusion here, this Court has implicitly ruled that a sentencing judge can consider pre‑sentence custody in determining the range of sentence and therefore the availability of a conditional sentence. However, as I noted in dissent in Knoblauch, at para. 67, the central point of contention between the appellant and the respondent in that case related to the third conditional sentence prerequisite of safety to the community. In neither the majority nor the dissenting reasons in Knoblauch was there any comprehensive consideration of whether it was proper for the trial judge to consider pre‑sentence custody in narrowing the range of sentence thereby making a conditional sentence a possibility. Thus, I conclude that this Court’s decision in Knoblauch is not particularly helpful in resolving the issue in the case at bar.
35 Jurisprudence from the lower courts is similarly unhelpful. Decisions arising out of Saskatchewan and Ontario appear to hold that a sentencing judge cannot calculate the amount of time that the accused has spent on remand and deduct it to determine whether the conduct in question would normally merit the imposition of imprisonment within a penitentiary: see R. v. Predenchuk (2000), 199 Sask. R. 264, 2000 SKCA 122; R. v. Runns (2002), 165 C.C.C. (3d) 217, 2002 SKCA 48; R. v. Dobis (2002), 58 O.R. (3d) 536 (C.A.). Another decision from Ontario and one from Quebec are not as clear and seem to suggest that where a penitentiary sentence is otherwise warranted, a conditional sentence will only be imposed in a rare and exceptional case after factoring in time spent in pre-trial custody: see R. v. Persaud (2002), 26 M.V.R. (4th) 41 (Ont. C.A.); R. c. Bastien, [2003] R.J.Q. 1695 (C.Q.). In contrast, decisions arising out of Alberta and British Columbia implicitly support the respondent’s argument that pre-sentence custody can be considered with respect to the range of sentence and therefore can impact upon the availability of a conditional sentence: see R. v. McClelland (2001), 281 A.R. 378, 2001 ABCA 182; R. v. La (2003), 15 Alta. L.R. (4th) 56, 2003 ABQB 391; R. v. Skani (2002), 331 A.R. 50, 2002 ABQB 1097; R. v. Brown (2002), 32 M.V.R. (4th) 211, 2002 ABPC 187; R. v. Harris (2002), 167 C.C.C. (3d) 246, 2002 BCCA 152.
36 As was the case with Knoblauch, none of these cases offer a thorough analysis of the issue of whether pre-sentence custody should affect a sentencing judge’s determination of the range of sentence and therefore the availability of a conditional sentence. Therefore, they do not assist with resolving the issue in the case at bar.
37 It remains to consider the respondent’s argument that prohibiting a sentencing judge from considering pre-sentence custody at the first stage of the Proulx analysis will lead to inequitable results. For example, in her written submissions to this Court, the respondent described a situation in which two accused are arrested on serious charges normally warranting a sentence in the range of three years. At a bail hearing, the more affluent accused presents evidence of a good financial background and a surety with some assets. This accused is released with some bail conditions. The second accused has no money and can present no suitable surety. This accused is detained in custody. Twelve months later, at the sentencing hearing, defence counsel for the first accused tells the judge that his or her