COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Summers, 2013
    ONCA 147

DATE: 20130312

DOCKET: C53913

Cronk, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Sean Summers

Respondent

Gregory J. Tweney and Molly Flanagan, for the appellant

Timothy E. Breen, for the respondent

Russell Silverstein, Ingrid Grant and Corbin Cawkell,
    for the intervener, the Criminal Lawyers Association of Ontario

Heard: October 11, 2012

On appeal from the sentence imposed on May 30, 2011 by
    Justice C. Stephen Glithero of the Superior Court of Justice, with reasons
    reported at [2011] O.J. No. 6377 (S.C.).

Cronk J.A.:

I.
Introduction

[1]

For decades, the courts have recognized that time spent by offenders in
    remand custody before trial merits potential credit on sentencing due to the
    frequently onerous conditions of remand detention, the lack of programming
    available to offenders during such detention, and the unavailability of remission
    and parole eligibility for time spent on remand.  As a result, for many years, crediting
    on sentencing for pre-trial and pre-sentence custody, in the discretion of the
    sentencing judge, has been a mainstay of Canadian sentencing law.

[2]

In March 2009, Parliament introduced Bill C-25, the
Truth in
    Sentencing Act
, S.C. 2009, c. 29 (the Act).  The Act applies to persons
    charged with a criminal offence after February 22, 2010, the day on which the
    Act came into force.
[1]
The Act introduced four substantive amendments to the
Criminal Code
,
    R.S.C. 1985, c. C-46 (the Code), which are designed to limit the amount of
    credit that may be assigned on sentencing to pre-trial and pre-sentence custody
    and to increase the transparency of crediting decisions.

[3]

This Crown sentence appeal raises an important issue of statutory
    interpretation regarding two of the amendments introduced under the Act.  The
    narrow question is whether a sentencing judge has discretion under s. 719(3.1)
    of the Code to credit pre-trial or pre-sentence custody at a ratio greater than
    1:1, up to a maximum of 1.5:1 (enhanced credit), to account for an accuseds
    loss of remission and parole eligibility while in remand custody.

[4]

This is a matter of first impression for this court.  Moreover, when
    this appeal was perfected, the proper interpretation of s. 719(3.1) and its
    relationship with s. 719(3) of the Code had yet to be decided by any appellate
    court.  However, in decisions released shortly before or after the date of oral
    argument, both the Nova Scotia and Manitoba Courts of Appeal addressed these
    issues in
R. v. Carvery
, 2012 NSCA 107, 321 N.S.R. (2d) 321, leave to
    appeal to S.C.C. requested, [2012] S.C.C.A. No. 519, and
R. v. Stonefish
,
    2012 MBCA 116.
[2]

[5]

In addition, the interpretive question raised on this appeal has been
    the subject of a host of trial court decisions, many conflicting, in Ontario
    and elsewhere across the country.  In Ontario, see for example,
R. v.
    Johnson
, 2011 ONCJ 77, 268 C.C.C. (3d) 423;
R. v. R.H.
, 2010 ONCJ
    735, affd 2011 ONCA 396;
contra
,
R. v. Morris
, 2011 ONSC
    5206;
R. v. Hawk
, 2012 ONSC 4745;
R. v. Haly
, 2012 ONSC 2302.

[6]

The sentencing judge in this case, citing
Johnson
, held in
    brief reasons that the respondent was entitled to enhanced credit for
    pre-sentence custody under s. 719(3.1) of the Code based on the unavailability
    of parole eligibility while in remand custody. In his view, to conclude
    otherwise would result in fundamental unfairness and inequitable, disparate
    treatment between remand offenders, who are presumed innocent and whose time
    served pending trial and sentence does not apply to parole eligibility, and
    convicted offenders, who enjoy the benefit of parole considerations. This
    factor, among others, led to similar appellate rulings in
Carvery
and
Stonefish
.

[7]

The interpretive inquiry required in this case is not an easy one.  As
    the many divergent trial level authorities in Canada demonstrate, the proper
    interpretation of s. 719(3.1) and its relationship with s. 719(3) of the Code
    are matters on which reasonable people could disagree.

[8]

As I see it, however, s. 719(3.1) of the Code allows a sentencing judge
    to credit pre-sentence custody at a ratio up to, but not exceeding, 1.5:1 for
    each day spent in pre-sentence custody where, on consideration of all relevant circumstances,
    such credit is necessary to achieve a fair and just sanction in accordance with
    the statutory scheme for sentencing and punishment set out in the Code.  On a
    proper record, the relevant circumstances that may justify this enhanced credit
    include ineligibility for remission and parole while in remand custody.  In the
    reasons that follow, I will explain the basis for this conclusion.

II.       F
acts

[9]

Kayleigh Ingram-Summers (Kayleigh) was born on March 2, 2010 to
    Kaitlyn Ingram (Kaitlyn), then 18 years of age, and Sean Summers (Sean or
    the respondent), then 19 years of age.  Following Kayleighs birth, Kaitlyn
    resided with her parents, Karen and Keith Ingram, while Sean lived elsewhere in
    his own apartment.  Kayleigh stayed either with Kaitlyn and her family or at
    Seans residence.  By May 2010, Kaitlyn and Sean had stopped dating, but they
    continued to share custody of Kayleigh.

[10]

On
    June 9, 2010, when Kayleigh was three months old, her grandfather noted bruises
    on her face after she returned from being in her fathers care.  The next day, he
    noted additional bruises and observed Kayleigh throwing up and shivering.
    Kayleigh also appeared to be lethargic, did not want to be placed on her back
    and was whimpering and not smiling.  Family and Childrens Services became
    involved and Sean acknowledged to the assigned case worker that he had caused
    Kayleighs bruises.  By June 13, 2010, Kayleigh was crying inconsolably, was
    continuing to vomit and appeared to be experiencing ear pain.  She was taken to
    the hospital but no specific diagnosis was made.

[11]

On
    June 17, 2010, Kayleigh was examined by a paediatrician at his office.  He
    became concerned about her bruising and arranged for Kayleigh to be admitted to
    hospital pending further examination.  Kayleigh was subjected to various tests
    but no medically conclusive cause of her injuries and condition was determined.
    She was released from the hospital on June 19, 2010, into the care of her young
    mother.

[12]

On
    June 24, 2010, a meeting was convened among Kaitlyn, Sean, Kaitlyns parents
    and other members of her family, and Family and Childrens Services.  At the
    meeting, Sean expressed concern about his ability to parent Kayleigh in times
    of stress.  He requested that a third party be present during his visits with her
    and agreed that Kaitlyn would fulfil this function in the future.

[13]

On
    July 6, 2010, Kayleighs paediatrician again examined her, for her four-month
    check-up.  Everything appeared to be normal.

[14]

Within
    days, events took a dramatic and tragic turn.  In exchange for Kaitlyn caring
    for Kayleigh for three days while he was away, Sean had agreed to watch
    Kayleigh on July 8-10, 2010.  He cared for her on July 8th without incident.
    On the morning of July 9th, he told Kaitlyn that he did not wish to pick up
    Kayleigh or to care for her that day.  Kaitlyn protested and took Kayleigh to
    Seans residence anyway, leaving her in his care.  During the course of the
    day, Sean repeatedly called and texted Kaitlyn, leaving her a series of
    insulting and threatening messages.  In one of his messages, he told Kaitlyn
    that Kayleigh was having a hard time breathing and you dont care.  He also
    tried to reach the Family and Childrens Services caseworker.  When he was
    unable to do so, he left her a voicemail.

[15]

At
    some point on July 9th, Sean violently shook Kayleigh, causing injuries that
    ultimately resulted in her death.  He did not seek medical care for Kayleigh at
    any time.  When Kaitlyn and her father picked Kayleigh up at Seans residence
    that evening, they noted that she was unresponsive, pale, glassy-eyed and
    lethargic, had difficulty breathing and was unable to support her head.  They
    immediately took her to the hospital.  Kayleigh underwent emergency surgery,
    but eventually died in hospital on July 12, 2010 from injuries consistent with
    shaken baby syndrome.

[16]

Sean
    was arrested on July 12, 2010 on a charge of second degree murder in connection
    with his daughters death.  In a statement to police on the same day, he
    admitted responsibility for her injuries.

[17]

After
    his arrest, Sean was detained in custody pending trial for approximately 10 and
    one-half months.  In April 2011, after a judicial pre-trial, the completion of
    Crown disclosure and the production of a pathology report, the original
    information against Sean was withdrawn and a new information was sworn,
    charging him with manslaughter.

[18]

At
    trial, the defence did not challenge the constitutional validity of ss. 719(3)
    and (3.1) of the Act.
[3]
Instead, on May 30, 2011, Sean pleaded guilty to manslaughter, agreed to the
    facts in support of his plea, and a conviction was entered.  Counsel at trial agreed
    that an appropriate sentence on the admitted facts was in the range of eight to
    ten years imprisonment.  The defence sought an eight-year penitentiary term (the
    low end of the agreed range), while the Crown argued for a ten-year sentence of
    imprisonment (the high end of the agreed range), before any credit for
    pre-sentence custody.

[19]

There
    was no joint submission on the appropriate credit to be given for Seans
    pre-sentence custody.  Relying on
Johnson
, the defence argued that he should
    receive credit at the rate of 1.5:1 under s. 719(3.1) of the Code, exclusively on
    the basis of his inability to earn remission or parole while in remand
    custody.  This would yield a total credit of approximately 16 months for pre-sentence
    custody.  There was no suggestion that Seans remand conditions were
    particularly harsh or oppressive.

[20]

Crown
    counsel at trial also referenced
Johnson
in her submissions on
    sentence, inviting the sentencing judge to use his discretion concerning the
    total amount of credit to be granted.  She conceded that the circumstances
    justified enhanced credit at the rate of 1.5:1, within the meaning of s.
    719(3.1) of the Code, for the six months spent by Sean in pre-trial custody
    until December 2010.  She further stated that if Sean maintained good behaviour
    while in custody, [i]t would not be wrong to assume he would be eligible for
    early parole.

[21]

The
    sentencing judge accepted the defence position and sentenced Sean to eight
    years imprisonment.  With respect to the appropriate credit for pre-sentence
    custody, he expressed concern about the lack of parole during remand custody
    and what he viewed as the resulting inequitable treatment between those accused
    who serve time in remand custody and those who do not, pending trial.  Citing
Johnson
,
    he held that the lack of parole eligibility during remand detention warranted enhanced
    credit under s. 719(3.1) of the Code at the rate of 1.5:1.

[22]

In
    reaching this conclusion, the sentencing judge correctly noted, at para. 40,
    that the vast majority of people are granted parole somewhere between
    one-third and two-thirds of their sentence, with more of them being towards the
    one-third mark.

[4]
He then said:

[I]f youre going to treat someone who is convicted in such a
    way as to allow them some time out of jail by way of granting parole, it seems
    to me its rather inequitable to say to someone who has not yet gone to trial
    that you get no similar credit for the fact that youre sitting here
    day-after-day in jail.

[23]

The
    sentencing judge concluded with these remarks, at para. 41:

I just say its absolutely unfair to treat someone who is
    presumed to be innocent more harshly than we would treat someone who has been
    found to be guilty ... it simply is not fair to say to someone we presume to be
    innocent, you serve every day without any credit beyond the actual day-for-day
    ratio.

[24]

In
    the result, the sentencing judge granted credit of 16 months, at a ratio of
    1.5:1, for Seans pre-sentence custody exclusively on the basis of Seans ineligibility
    for parole while in remand custody.  Accordingly, a sentence of 80 months (6
    years and eight months) imprisonment, after credit for pre-sentence custody, was
    imposed.

[25]

The
    Crown appeals against sentence on the sole ground that the sentencing judge
    erred by holding that the lack of remission or parole eligibility during
    pre-sentence custody,
[5]
on its own, can justify enhanced credit at the rate of 1.5:1 for each day in
    custody under s. 719(3.1) of the Code.   The Crown submits that to conclude
    otherwise, as the sentencing judge did, is to err in law by misinterpreting s.
    719(3.1) and to defeat the will of Parliament as reflected in ss. 719(3) and
    (3.1) of the Code.

[26]

The
    Crown, therefore, asks this court to vary the sentence imposed by recalculating
    the credit given for pre-sentence custody at the rate of 1:1.  This would
    result in an overall sentence of 85.5 months (seven years and one and one-half
    months) imprisonment.  The defence, supported by the intervener, the Criminal
    Lawyers Association of Ontario (the CLAO), strongly resists the Crowns
    challenge to the credit granted by the sentencing judge, on numerous grounds.

III.      Relevant Statutory Provisions

[27]

Two
    of the amendments introduced under the Act are the focus of this appeal. They read:

3.  Subsection 719(3) of the Act is replaced by the following:

(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 but the court shall limit any
    credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify
    it, the maximum is one and one-half days for each day spent in custody unless
    the reason for detaining the person in custody was stated in the record under
    subsection 515(9.1) or the person was detained in custody under subsection
    524(4) or (8).
[6]

[28]

The
    predecessor version of s. 719(3) was added to the Code in 1972 as part of the
Bail
    Reform Act
, R.S.C. 1970 (2nd Supp.), c. 2.  It read:

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.

[29]

The
    amendments introduced by the Act form part of Part XXIII of the Code, entitled
    Punishment Generally.  The purpose, objectives and principles of sentencing
    are codified earlier in Part XXIII of the Code, under the separate heading,
    Purpose and Principles of Sentencing.  They provide, in part:

718.
The fundamental purpose of sentencing is to contribute, along with crime
    prevention initiatives, to respect for the law and the maintenance of a just,
    peaceful and safe society by imposing just sanctions that have one or more of
    the following objectives:

(a)
to denounce unlawful conduct;

(b)
to deter the offender and other persons from
    committing offences;

(c)
to separate offenders from society, where
    necessary;

(d)
to assist in rehabilitating offenders;

(e)
to provide reparations for harm done to victims
    or to the community; and

(f)
to promote a sense of responsibility in
    offenders, and acknowledgement of the harm done to victims and to the
    community.

...

718.1
A sentence must be proportionate to the gravity of the offence and the degree
    of responsibility of the offender.

718.2
A court that imposes a sentence shall also take into consideration the
    following principles:

...

(b)
a sentence should be similar to sentences
    imposed on similar offenders for similar offences committed in similar
    circumstances.

[30]

Section
    719(1) of the Code precludes the antedating or postdating of a sentence.  It
    states: A sentence commences when it is imposed, except where a relevant enactment
    otherwise provides.

IV.     I
ssues

[31]

There
    is no attack before this court on the sentence of eight years imprisonment
    imposed by the sentencing judge.  The only issue is whether the sentencing
    judge erred in law by crediting the respondents pre-sentence custody at the
    rate of 1.5:1 to take account of his ineligibility for remission and parole
    while in remand custody.

V.
Analysis

(1)

Prior Regime for Crediting Pre-Sentence Custody

[32]

Prior
    to the enactment of the Act, former s. 719(3) of the Code authorized sentencing
    judges, in the exercise of their sentencing discretion, to take into account
    any pre-sentence custody of the accused occasioned as a result of the offence
    for which the accused stood convicted.  Apart from this statutory provision and
    cognizant of the inability to antedate a sentence, the courts had also long recognized
    that fairness compelled consideration on sentencing of time spent in
    pre-sentence custody.  See for example,
R. v. Sloan
(1947), 87 C.C.C.
    198 (Ont. C.A.), at para. 7.

[33]

In
    commenting on a predecessor provision to former s. 719(3), this court held in
    the leading case of
R. v.

Rezaie
(1996), 31 O.R. (3d) 713, at
    para. 25:

Although this section is discretionary, not mandatory, in my
    view a sentencing judge should ordinarily give credit for pre-trial custody.
    At least a judge should not deny credit without good reason.  To do so offends
    ones sense of fairness.  Incarceration at any stage of the criminal process is
    a denial of an accuseds liberty.

[34]

This
    passage from
Rezaie
was applied in hundreds of subsequent decisions:
    Gary Trotter,
The Law of Bail in Canada
,
loose-leaf
, 3rd ed.
    (Toronto: Carswell, 2012) at 9-2.  Thus, as confirmed in
Rezaie
, the
    courts consistently held that sentencing judges should usually afford some credit
    for pre-sentence custody, absent justification to the contrary.

[35]

The
    jurisprudence of the Supreme Court emphasizes that sentencing is an
    intrinsically and profoundly subjective process.  It is also highly
    case-centric and individualized:
R. v.

Shropshire
, [1995] 4
    S.C.R. 227, at para. 46;
R. v. Proulx
, 2000 SCC 5, [2000] 1 S.C.R. 61,
    at para. 82;
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206, at
    para. 43;
R. v. Jacko
, 2010 ONCA 452, 256 C.C.C. (3d) 113, at paras.
    48 and 52.  In
R. v. Wust
, 2000 SCC 18, [2000] 1 S.C.R. 455, at para.
    44, the Supreme Court put it this way: [T]he goal of sentencing is to impose a
    just and fit sentence, responsive to the facts of the individual offender and
    the particular circumstances of the commission of the offence.  More recently,
    in
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433, LeBel J. stated, at
    para. 38:

The determination of a fit sentence is, subject to any specific
    statutory rules that have survived
Charter
scrutiny, a highly individualized
    process.  Sentencing judges must have sufficient manoeuvrability to tailor
    sentences to the circumstances of the particular offence and the particular
    offender.  Appellate courts have recognized the scope of this discretion and
    granted considerable deference to a judges choice of sentence.

[36]

For
    these reasons, the courts have steadfastly rejected a rigid or formulaic
    approach to crediting pre-sentence custody, instead requiring that the
    appropriate credit be determined on a case-by-case basis:
Wust
at
    para. 45;
Rezaie
at para. 26;
R. v. Francis
(2006), 79 O.R.
    (3d) 551 (C.A.), at para. 8.

[37]

The
    conceptual rationale for crediting pre-sentence custody has traditionally been based
    on three considerations: (1) as in issue in this case, parole eligibility and
    statutory release and remission provisions do not take account of time spent in
    pre-sentence custody; (2) generally, detention centres do not provide educational,
    retraining or rehabilitation programming for those in custody waiting trial;
    and (3) due to overcrowding, inmate turnover, labour disputes and other
    factors, the custodial conditions for remand prisoners can be unusually
    onerous:
Wust
at paras. 28 and 38;
Rezaie
at para. 25;
R.
    v. McDonald
(1998), 40 O.R. (3d) 641 (C.A.), at paras. 31-32;
Francis
at para. 14.

[38]

In
    light of these factors, remand detention has often been described as dead
    time.  As Arbour J. stated in
Wust
, at para. 45,  Dead time is
    real time.  More recently, in
R. v. Monje
, 2011 ONCA 1, 273 O.A.C.
    392, a case that post-dates the Act, LaForme J.A. of this court observed, at
    para. 18:

I would note parenthetically that, to the extent that the [Act]
    ... limit[s] an offenders entitlement to credit on a 2:1 basis, the reality of
    what dead time is remains.
That is, pre-sentence custody continues to be
    dead time for the same reasons Laskin J.A. noted in Rezaie and remains one of
    the most punitive forms of imprisonment in Canada
.  [Emphasis added.]

[39]

Based
    on these realities of pre-sentence custody, the courts developed the practice
    of assigning credit for each day spent in pre-sentence custody at the rate of
    2:1.  In
Wust
, at para. 45, the Supreme Court expressly endorsed this
    customary credit as entirely appropriate given the hardships associated with
    pre-sentence custody identified in
Rezaie
, in particular, the absence
    of programs and the fact that statutory remission mechanisms do not apply to
    remand custody.  See also
Francis
at paras. 11-13;
R. v. Downes
(2006), 79 O.R. (3d) 321 (C.A.);
R. v. Sooch
, 2008 ABCA 186, 433 A.R.
    270.  In the years following
Wust
, the 2:1 crediting practice became
    well-entrenched, leading some courts to refer to it as a norm or general
    rule: see
Stonefish
at para. 14.

[40]

On
    occasion, in the exercise of their discretion, sentencing judges credited
    pre-sentence custody on more than a 2:1 basis.  This sometimes occurred where
    the evidence on sentencing established that an accused had been subjected to
    especially difficult or onerous conditions of detention while waiting for trial
    or sentencing: see for example,
R. v. Kravchov
(2002), 4 C.R. (6th)
    137 (Ont. C.J.);
R. v. Critton
, [2002] O.T.C. 451 (S.C.);
R. v. Serniak
,
    [2002] O.J. No. 5160 (S.C.).

[41]

The
    granting of credit at a rate of three or four times the number of days actually
    spent in remand custody proved to be controversial, prompting calls by some for
    reappraisal of the approach to crediting pre-sentence custody. See for example,
    the cautionary
obiter
comments of Moldaver J.A. of this court, as he
    then was, in
R. v. J.B.
(2004), 187 O.A.C. 307, at footnote 1.

[42]

By
    the same token, credit for pre-sentence custody was also sometimes denied
    entirely, or granted at a rate of less than 2:1, where circumstances warranted:
Francis
at paras. 23-25;
R. v. Pangman
, 2001 MBCA 64, 156 Man.
    R. (2d) 120, at para. 66;
R. v. M.(C.A.)
, [1996] 1 S.C.R. 500, at
    para. 96.

[43]

Thus,
    prior to the Act, the amount of credit granted for pre-sentence custody began
    and ended with the exercise of a sentencing judges broad discretion, indeed,
    obligation, to fashion a just and proportionate sentence, based on all the
    facts of the case.

[44]

In
    my opinion, the varying treatment by sentencing judges of credit to be assigned
    for pre-sentence custody highlights a fundamental aspect of the complex
    calculus that is inherent in the task of crafting an appropriate sentence.  On
    the one hand, the real-world features of pre-sentence custody dictate that, in
    the interests of fundamental fairness and the integrity of the criminal justice
    system, some credit for pre-sentence custody usually ought to be afforded on
    sentencing.  On the other hand, the same interests demand that crediting for
    pre-sentence custody not overwhelm the sentencing process itself.  The
    resulting tension between these criminal justice imperatives informs the
    disputes that have arisen concerning the proper interpretation of ss. 719(3)
    and (3.1) of the Code.

(2)

Controlling Principles

[45]

The
    analysis of the scope of a sentencing judges discretion under s. 719(3.1) of
    the Code must proceed on the basis of two controlling principles.  First,
    appellate courts are ordinarily required to defer to sentences imposed by
    sentencing judges.  Absent an error in principle, a failure to consider a
    relevant factor, or an overemphasis of the appropriate factors, appellate courts
    should only interfere with a trial judges sentencing decision where the
    sentence imposed is demonstrably unfit:
Shropshire
at para.
47;
R. v. M.(C.A.)
at paras. 89-90;
Rezaie
at
    paras.
17-20.  Where, however, the error alleged is the misconstruction of
    a governing statutory provision, as in this case, and the error is made out,
    deference to the sentencing judge is displaced.

[46]

Second,
    it is now clear that there is only one approach to statutory interpretation in
    Canada, in both the civil and criminal law domains.  In
Re Rizzo &
    Rizzo Shoes Ltd.
, [1998] 1 S.C.R. 27, at para. 21, the Supreme Court
    endorsed this formulation of the preferred approach, articulated by Elmer
    Driedger in
Construction of Statutes
(2nd ed. 1983), at p. 87:

Today there is only one principle
    or approach, namely, the words of an Act are to be read in their entire context
    and in their grammatical and ordinary sense harmoniously with the scheme of the
    Act, the object of the Act, and the intention of Parliament.

[47]

In
Bell ExpressVu Limited Partnership

v. Rex
, 2002 SCC 42,
    [2002] 2 S.C.R. 559, at paras. 26-27, Iacobucci J., writing for the Supreme Court,
    elaborated:

I note as well that, in the federal legislative context, this
    Courts preferred approach [to statutory interpretation] is buttressed by s. 12
    of the
Interpretation Act
, R.S.C. 1985, c. I-21, which provides that
    every enactment is deemed remedial, and shall be given such fair, large and
    liberal construction and interpretation as best ensures the attainment of its
    objects.

The preferred approach recognizes the important role that
    context must inevitably play when a court construes the written words of a
    statute: as Professor John Willis incisively noted in his seminal article
    Statute Interpretation in a Nutshell (1938), 16
Can. Bar Rev.
1, at
    p. 6, words, like people, take their colour from their surroundings.  [Citations
    omitted.]

(3)

Interpretation of Section 719(3.1) of the Code

(a)

Existing Jurisprudence

[48]

In
Carvery
, at paras. 22-23, the Nova Scotia Court of Appeal characterized
    the existing jurisprudence regarding the meaning of s. 719(3.1) of the Code as
    falling into two general camps: those cases holding that enhanced credit for
    pre-sentence custody under s. 719(3.1) is available only where exceptional
    circumstances warranting credit at a rate greater than 1:1 are demonstrated, and
    those cases holding that exceptional circumstances need not be shown to justify
    enhanced credit under s. 719(3.1).

[49]

This
    is an apt depiction of the divide in the reported trial level decisions across
    Canada regarding the interpretation of this provision.  To this I would add
    that the available appellate level decisions to date
Carvery
and
Stonefish
 have endorsed the interpretive result in the second line of cases: a showing
    of exceptional circumstances is not required to ground enhanced credit under s.
    719(3.1).

[50]

As
    in
Carvery
, I see no useful purpose on this appeal in examining all
    the conflicting authorities that address the proper interpretation of s.
    719(3.1).  The critical issue, common to all, is whether enhanced credit may be
    justified under s. 719(3.1) only in exceptional circumstances.

[51]

In
    this case, the Crown contends that the unavailability of remission or parole
    eligibility during remand custody, on its own, can never justify enhanced credit
    for pre-sentence custody under s. 719(3.1).  The Crown, relying heavily on the
    legislative history of the Act, advances several arguments in support of this
    interpretive conclusion.  At the end of the day, the Crowns position is that,
    properly

interpreted,

s.

719(3.1)

contemplates that only exceptional
    circumstances can justify enhanced credit and that a remand offenders loss of
    remission and parole eligibility during pre-sentence custody does not qualify
    as an exceptional circumstance within the meaning of s. 719(3.1).

(b)

Section 719(3)

[52]

The
    starting point for analysis is s. 719(3).  The Crown argues that s. 719(3) imposes
    a cap on the amount of credit that may be given by a sentencing judge for
    pre-sentence custody, the effect of which is to limit any credit for that time
    to a maximum of one day for each day spent in pre-sentence custody.  Parliament
    has decreed, the Crown says, that this is the new general rule for the amount
    of credit that may be assigned for pre-sentence custody, in substitution for
    the previous 2:1 crediting practice, described above. I agree with this
    characterization of the import of s. 719(3).

[53]

The
    current version of s. 719(3) is identical to the predecessor version of this
    provision, save in one significant respect.  Under the Act, the following
    qualifying phrase was added at the end of s. 719(3): but the court shall limit
    any credit for that time to a maximum of one day for each day spent in
    custody.

[54]

This
    language is clear and mandatory.  Read in its entirety, s. 719(3) preserves the
    discretion of sentencing judges to determine whether credit will be granted for
    pre-sentence custody.  However, it also establishes a new statutory ceiling on
    the amount of available credit by providing that the
maximum
amount of
    credit is to be calculated on a 1:1 basis (emphasis added).

[55]

Accordingly,
    credit for pre-sentence custody must now ordinarily be based on a ratio of 0:1 to
    1:1.  I did not understand the respondent or the CLAO to vigorously challenge
    this construction of s. 719(3).

(c)

Section 719(3.1) and its Relationship to Section 719(3)

[56]

The
    battleground on this appeal concerns the proper interpretation of the word
    circumstances as it appears in the phrase if the circumstances justify it in
    s. 719(3.1).  For convenience, I again set out s. 719(3.1) of the Code:

Despite subsection (3), if the circumstances justify it, the
    maximum is one and one-half days for each day spent in custody unless the
    reason for detaining the person in custody was stated in the record under
    subsection 515(9.1) or the person was detained in custody under subsection 524(4)
    or (8).

[57]

As
    I understood the Crowns position, its interpretation of s. 719(3.1) proceeds
    in three steps.  First, the Crown argues that s. 719(3.1) sets out an exception
    to the new 1:1 maximum credit approach mandated by s. 719(3).  The Crown
    submits that s. 719(3.1) preserves some degree of judicial discretion to
    increase the amount of credit for pre-sentence custody beyond that calculated
    at the rate of 1:1.  As I elaborate later in these reasons, I agree.

[58]

The
    Crown next says that this judicial discretion is limited by two factors: (1)
    any enhanced credit for pre-sentence custody (beyond the 1:1 rate) is permissible
    only where the circumstances justify it; and (2) enhanced credit is precluded
    in two situations  where the reason for the accuseds pre-sentence detention
    was stated in the record under s. 515(9.1) or the accused was detained in
    custody under ss. 524(4) or (8).  On a plain reading of s. 719(3.1), I again agree.

[59]

Third,
    the Crown submits that when ss. 719(3) and (3.1) are read together, it is clear
    that the unavailability of remission or parole eligibility during remand
    detention (presumably like the other factors traditionally regarded as
    justifying enhanced credit for such detention
e.g.
harsh conditions of
    detention and lack of programming), is a consideration relevant only to the
    crediting analysis under s. 719(3).  In other words, while the unavailability
    to a remand offender of remission and parole eligibility is a factor that may
    justify credit calculated at the maximum rate of 1:1, it is not a circumstance
    that may justify credit under s. 719(3.1) at a rate greater than 1:1, in any situation.
    For reasons I will explain, I disagree with this third and final step of the
    Crowns proposed interpretation of s. 719(3.1).

[60]

The
    respondent and, particularly, the CLAO, counter that this reading of ss. 719(3)
    and (3.1) is contrary to the plain meaning of these provisions, the express intention
    of Parliament regarding a sentencing judges discretion to fashion a sentence
    that is just and appropriate to the circumstances of the offence and the
    offender and, more generally, to the established principles of sentencing. They
    submit that the unavailability of remission and parole eligibility during
    remand detention can and generally should be a circumstance that warrants
    credit for pre-sentence custody up to a maximum of 1.5:1 under s. 719(3.1).

[61]

More
    specifically, these parties contend that the unavailability of remission and
    parole eligibility during remand detention is a circumstance within the
    meaning of s. 719(3.1) that strongly supports the granting of credit for
    pre-sentence custody at the rate of 1.5:1, and should generally justify it
    absent a compelling reason to deny it, so long as the existing parole scheme
    remains unaltered.  To hold otherwise would unjustifiably reverse the
    long-established relationship between the absence of remission and parole
    eligibility and enhanced credit for pre-sentence custody.  Further, the Crowns
    urged interpretation of ss. 719(3) and (3.1) would result in disparate and
    unjust treatment of similarly situated offenders and potential violations of an
    offenders ss. 7 and 12
Charter
rights.

[62]

I
    make this preliminary observation regarding the parties competing
    interpretations of s. 719(3.1). In my view, there can be no serious challenge
    to the assertion that the purpose of ss. 719(3) and (3.1) is to limit the
    amount of credit that can be assigned on sentencing to pre-sentence custody, in
    particular, by eliminating routine crediting at the rate of 2:1.

[63]

The
    cases describe 2:1 crediting, variously, as a practice, rule, custom,
    norm or convention.  In the aftermath of the Act, the proper
    characterization of 2:1 crediting is irrelevant.  Prior to the Act, it was a
    customary, although not uniform, approach to crediting pre-sentence custody.  Under
    the Act, however, as noted in
Carvery
, at para. 83, and accepted in
Stonefish
,
    at para. 33, [T]he general rule of a 2:1 credit was to be scrapped in all
    circumstances.

[64]

Thus,
    under the Act, credit at the rate of 2:1 is no longer even possible:
Stonefish
at para. 16. Instead, while the decisions whether to grant credit and, if so,
    as to the amount of appropriate credit, remain discretionary determinations for
    the sentencing judge, the credit that may be granted is limited to a maximum
    rate of 1:1 (s. 719(3)), unless the circumstances justify enhanced credit (s.
    719(3.1)). Even then, the extent of enhanced credit is limited to that
    calculated at the maximum rate of 1.5:1:
Stonefish
at para. 34.

[65]

In
    my view, the interpretation of the phrase if the circumstances justify it
    including, in particular, the word circumstances in s. 719(3.1), must be
    undertaken in the context of this legislative purpose and scheme.  For the
    following seven reasons, I am unable to accept the restrictive interpretation
    of circumstances urged by the Crown.

[66]

I
    note, first, the obvious but important point that s. 719(3.1) is silent as to
    the situations that will justify enhanced credit for pre-sentence custody. As
    others have observed, the word circumstances in s. 719(3.1) is not qualified by
    any modifying or limiting language.  Nor is it defined under the Act.  As
    indicated by Chief Judge Cozens in
R. v. Vittrekwa
, 2011 YKTC 64, 275
    C.C.C. (3d) 193, at para. 46, none of the words exceptional, unusual or
    special (nor, I would add, any of the words compelling, extraordinary, or
    rare) is used in s. 719(3.1) to constrain or limit the circumstances that may
    justify enhanced credit.

[67]

Both
    in
Carvery
and
Stonefish
, the courts undertook thoughtful and
    comprehensive analyses of the meaning of s. 719(3.1) and its relationship with
    s. 719(3).  In
Carvery
, when examining the grammatical and ordinary
    sense of the words in s. 719(3.1), Beveridge J.A. noted the absence of any
    descriptive words concerning the nature of the circumstances in which enhanced
    credit may be granted.  After referring to
Vittrekwa
, he made this apt
    comment, at para. 47:

It is certainly correct to say that if Parliament intended to
    exclude as a circumstance factors such as loss of remission that might justify
    granting more credit than 1:1, it could have easily inserted some qualifying
    words such as if the circumstances,
other than loss of remission or parole
    eligibility
, justify it, the maximum is one and one-half days. [Emphasis
    added.]

[68]

I
    agree.  The legislators failure to employ modifying language in connection with
    the word circumstances in s. 719(3.1), particularly when restrictive language
    could readily have been inserted, is significant.  It gives rise to the
    inference that a sentencing judge enjoys a wide discretion under the provision
    to consider all those circumstances that may, in a particular case, warrant
    enhanced credit, subject always to Parliaments clear direction that such credit
    should not exceed that calculated at the maximum rate of 1.5:1.

[69]

Indeed,
    I go further.  The absence of limiting language in connection with the word
    circumstances in s. 719(3.1) is telling for two additional reasons. First, although
    nothing in s. 719(3.1) affords any guidance about the situations that would
    support an enhanced credit claim, it does identify two circumstances in which enhanced
    credit is explicitly unavailable.  The concluding language of s. 719(3.1) excludes
    from consideration for enhanced credit those offenders who have been denied
    bail primarily because of a previous conviction (the Code s. 515(9.1) exclusion)
    and offenders who have contravened their bail conditions or committed an
    indictable offence while on bail (the Code ss. 524(4) or (8) exclusion).
    Enhanced credit for these offenders is expressly prohibited.

[70]

These
    exclusions confirm that Parliament considered factors warranting disentitlement
    to enhanced credit.  This strongly suggests that the failure to mention other
    exclusions  such as the loss of remission and parole eligibility for remand
    prisoners  was not a mere drafting oversight, but rather, a deliberate choice.

[71]

Second,
    the absence of qualifying language in s. 719(3.1) is also significant because other
    provisions of the Code employ the phrases exceptional circumstances,
    exceptional cases, or compelling circumstances: see for example, ss. 269.1(3)
    (defences to the offence of torture), 475(3) (the re-opening of the trial of an
    absconding accused), 672.14(3) (the making of a 60-day assessment order to
    determine the fitness of an accused to stand trial), 672.47(2) (the extension
    of time to hold an Ontario Review Board hearing) and 742.6(16) (time served
    under a conditional sentence order).

[72]

The
    use of limiting language in relation to the word circumstances in some
    sections of the Code, in contrast to the legislators choice of language in s.
    719(3.1), triggers the presumption of consistent expression.  Under this rule
    of statutory interpretation, it is presumed that Parliament uses language
    carefully and consistently so that within a statute or other legislative
    instrument the same words have the same meaning and different words have
    different meanings: Ruth Sullivan,
Sullivan on the Construction of
    Statutes
, 5th ed. (Markham: LexusNexis, 2008) at pp. 214-5.

[73]

Like
    all interpretive presumptions, this rule may be displaced, or attract reduced weight,
    depending on the circumstances.  That said, its application here bolsters the
    conclusion that the absence of limiting language in s. 719(3.1) was not
    inadvertent and that it is open to a sentencing judge under s. 719(3.1) to have
    regard to all relevant circumstances, including the loss of remission and
    parole eligibility during remand custody, when evaluating a claim for enhanced
    credit.

[74]

I
    therefore do not agree with the Crowns submission that the discretion
    conferred on sentencing judges to grant enhanced credit under s. 719(3.1) is
    strictly controlled.  To the contrary, the language of s. 719(3.1) suggests
    that this discretion is unfettered (save for the express exclusions from
    enhanced credit identified in the section and the overarching restriction that,
    in no event, may enhanced credit exceed that calculated at the maximum rate of
    1.5:1).  The need for justification of enhanced credit says nothing about what
    will constitute justification and under what conditions.  Parliament was
    capable of identifying those conditions.

[75]

It
    follows that I see much to commend Chief Judge Cozenss conclusion in
Vittrekwa
,
    at para. 46, that the legislators choice of language in s. 719(3.1) indicates
    that ordinary or common circumstances may be sufficient to ground enhanced
    credit for pre-sentence custody in a proper case.  On this construction of s.
    719(3.1), as Chief Judge Cozens indicated: The critical factor is that the
    circumstances are enough, in the particular case, to justify increasing the
    credit for remand custody up to the maximum of 1.5:1.  In other words, the
    test is whether the circumstances relied on for enhanced credit are sufficient
     not whether they are rare or ubiquitous.

[76]

My
    second reason for disagreeing with the Crowns suggested interpretation of the
    word circumstances flows from the fact that s. 719(3), the 1:1 crediting
    provision, contains no language, express or implied, to support the Crowns
    contention that credit for the unavailability of remission and parole
    eligibility during remand custody is to be taken into account exclusively on a
    s. 719(3) analysis.

[77]

Third,
    I am not persuaded that the architecture of ss. 719(3) and (3.1), that is,
    their structure or the sequence in which they appear, compels the interpretive outcome
    urged by the Crown.

[78]

As
    I said earlier, I accept that the arrangement of ss. 719(3) and (3.1) and the
    language of the latter section indicate that s. 719(3.1) operates as an
    exception to the maximum 1:1 limit on credit for pre-sentence custody provided
    for under s. 719(3). This is confirmed by the elimination under s. 719(3) of the
    previous 2:1 crediting practice, and the substitution of a general maximum 1:1
    crediting approach.  Section 719(3.1) then authorizes a departure from this approach.
    The introductory language to s. 719(3.1) reads despite subsection 3 (in the
    English language version) and malgré le paragraphe (3) (in the French
    language version).  The ordinary meaning of these words establishes that
    enhanced credit may be granted notwithstanding or despite s. 719(3).

[79]

But
    this arrangement begs the question of when such enhanced credit may be
    granted.  It is not revelatory of the intended scope of the word circumstances
    in s. 719(3.1).  In my view, the structure or sequencing of ss. 719(3) and
    (3.1), coupled with the introductory language of the latter section, simply
    reveals the intention that more offenders will be eligible for credit up to a
    maximum of 1:1, than for enhanced credit up to a maximum of 1.5:1. Stated differently,
    the fact that crediting to a maximum of 1.5:1 is an expressly permitted exception
    to 1:1 crediting does not mean that the circumstances warranting such enhanced
    credit must themselves be exceptional.

[80]

Nor
    does the legislative draftspersons use of a marginal note, entitled
    exception, in connection with s. 719(3.1) undercut this conclusion.  As Steel
    J.A. indicated in
Stonefish
, at para. 41, marginal notes are inserted
    for convenience only.  They are not part of the enactment and are of limited
    value as an aid to statutory interpretation: see
Interpretation Act
,
    R.S.C. 1985, c. I-21, s. 14.  In any event, s. 719(3.1)
is
an
    exception  to the maximum 1:1 crediting approach dictated by s. 719(3).

[81]

The
    effect of the Crowns argument, in my view, is to ask this court to rewrite s.
    719(3.1) of the Act by reading the word exceptional into the provision so
    that it reads: if exceptional circumstances justify it, thus reading down the
    ambit of the word circumstances.  This is inconsistent with the general and
    unqualified nature of the statutory language used in s. 719(3.1).  It is also contrary
    to the applicable rules of statutory interpretation. In
McDonald
, at
    paras. 26-27, this court considered whether words should be read into the
    former s. 719(3) of the Code in order to construe it as having no application
    to statutory minimum sentences. In rejecting this approach, the court relied on
    the following passage from
R. v. McIntosh
, [1995] 1 S.C.R. 686, at para.
    28, concerning the contextual approach to the interpretation of the words of a
    statute:

[T]he contextual approach allows the courts to depart from the
    common grammatical meaning of words where this is required by a particular
    context,
but it does not generally mandate the courts to read words into a
    statutory provision
. It is only when words are reasonably capable of
    bearing a particular meaning that they may be interpreted contextually.
    [Emphasis in original.]

[82]

Fourth,
    the Crown relies heavily on the legislative history of the Act to support its
    argument that enhanced credit was intended by Parliament to be available only
    in exceptional circumstances that do not include the unavailability of
    remission and parole eligibility for remand offenders. On the legislative
    record before us, I cannot accept this argument.

[83]

The
    Crown cites, especially, remarks made by the Minister of Justice when he
    appeared before the House of Commons Standing Committee on Justice and Human
    Rights (6 May 2009) to address Bill C-25. In his comments, at p. 1630, the Minister
    noted that the circumstances envisaged under s. 719(3.1) for enhanced credit
    are not defined. He then provided two examples of situations where it was
    anticipated that enhanced credit may be considered  extremely poor conditions
    of detention and unnecessary delays in an accuseds trial not attributable to
    the accused. The Crown emphasizes that the loss of remission or parole while in
    remand detention was notably absent from the Ministers cited examples.

[84]

But,
    in this case, the legislative record sheds little reliable light on the meaning
    and reach of the word circumstances in s. 719(3.1).  Reliance on legislative
    history to discern the intended meaning of a statutory provision is appropriate
    only where the legislative record is relevant and reliable.  Even then, it must
    be used with caution:
Németh v. Canada (Justice)
, 2010 SCC 56, [2010]
    3 S.C.R. 281, at para. 46.  Here, as observed in
Carvery
, at paras.
    83-84, and
Stonefish
, at paras. 60-67, the record is replete with
    conflicting and inconsistent statements made by representatives of the
    Government during the parliamentary review of Bill C-25 regarding s. 719(3.1).

[85]

Apart
    from the Ministers statements, comments by other Government spokespersons during
    consideration of Bill C-25, including by David Daubney  a senior policy
    advisor in the Department of Justice who was involved in drafting Bill C-25
    undermine the claim that enhanced credit was intended to apply only in exceptional
    circumstances that exclude the loss of remission and parole eligibility by
    remand offenders.  Indeed, certain of Mr. Daubneys remarks suggest precisely
    the opposite.

[86]

One
    example will suffice to make this point.  Mr. Daubney testified before the
    House of Commons Standing Committee on Justice and Human Rights (1 June 2009),
    at p. 1605, in part as follows:

As you know, the more common expression in the Criminal Code is
    in exceptional circumstances, but we deliberately didnt use that here
because
    the circumstances wont be that exceptional; theyll be fairly common and, in
    the case of the parole loss and the remission loss, will be universal
.
    [Emphasis added.]

[87]

Earlier
    in his testimony, Mr. Daubney also stated, at p. 1550:

The direction we had from our Minister and from the government
    generally was to prepare a bill based on one to one, with an opportunity to go
    up to 1.5 if the circumstances justified it.
Frankly, its impact will be
    that

courts trying to do justice will find that in many cases the
    circumstances do justify something between one to one and 1.5:1, but well have
    to see how that plays out
.  [Emphasis added.]

[88]

These
    remarks are wholly inconsistent with the narrow interpretation of s. 719(3.1)
    contended for by the Crown.  They also appear to be inconsistent with some of
    the Ministers comments, as relied on by the Crown, concerning s. 719(3.1).  In
    these circumstances, in my opinion, the legislative record regarding Bill C-25
    cannot be regarded as a reliable marker of Parliaments intention concerning
    the meaning and scope of the word circumstances in s. 719(3.1).

[89]

Fifth,
    the Crown contends that if, contrary to its submission, s. 719(3.1) is
    interpreted to apply in non-exceptional circumstances, Parliaments intention
    to reduce credit for pre-trial custody will be defeated because every remand
    offender will qualify for enhanced credit. This result, the Crown says, will effectively
    transform s. 719(3.1) into the new general rule for credit for pre-sentence
    custody, thereby rendering s. 719(3) redundant and meaningless. In effect, the
    exception would swallow the general rule.

[90]

I
    disagree.  A virtually identical argument was advanced by the Crown in
Carvery
and
Stonefish
. In
Carvery
, the Crown appears to have anchored
    this argument on the presumption against tautology, which holds that the
    legislature is presumed to avoid superfluous or meaningless words and that: [e]very
    word in a statute is presumed to make sense and to have a specific role to play
    in advancing the legislative purpose:
Sullivan on the Construction of
    Statutes
, at p. 210.  Although Crown counsel in the case at bar did not
    directly invoke this presumption, their redundancy complaint is rooted in the
    same principle of statutory interpretation.

[91]

The
Carvery
and
Stonefish
courts rejected this argument. In
Carvery
,
    the court held, at para. 57, that the arrangement of the subsections and the
    language used in ss. 719(3) and (3.1) does not lead to the conclusion that
    Parliament intended that judicial discretion would be limited to granting
    credit of 1.5:1 only in exceptional cases.  The court then continued, at
    paras. 59-60 and 66-67:

If subsection (3) did not set a base ratio of 1:1, what then
    would be the ratio for those offenders referred to in subsection (3.1)  ones
    that have had their bail revoked or were remanded primarily due to his or her
    prior conviction? It is a maximum of one to one by virtue of subsection (3).
    Subsection (3) is therefore not rendered superfluous or redundant by
    interpreting s-s. (3.1) as not requiring exceptional circumstances before a
    judge can increase the credit.

The Crown suggests that virtually every remand offender would
    get a credit at the ratio of 1.5:1 thereby creating a
de facto
maximum of 1.5:1 rather than 1:1. Also, it would leave very, very few
    candidates for the application of s. 719(3). With respect, I am unable to
    accede to this logic as being the guide to the contended for interpretation. As
    just mentioned, those denied bail due to a previous conviction (whatever that
    may mean) or for violation of bail conditions would be governed by s. 719(3).
    Furthermore, I do not see it as automatic or a foregone conclusion that a judge
    must grant credit at more than 1:1 based on loss of remission or parole.

....

I do not lose sight of the fact that it would not be onerous
    for most offenders to establish that they would have earned remission or been
    granted parole, and hence, it is not likely to be a rare occurrence for an
    offender to be worthy of a credit of more than 1:1.

Respectfully, I disagree with the view that the sequence of the
    subsections means subsection (3) creates a general rule and exceptional
    circumstances must be demonstrated to justify any increase above 1:1. The
    problem is that Parliament did not say any such thing  when it would have been
    so easy to do so, if that were its intent.

[92]

I
    agree with these comments.

[93]

Sixth,
    and importantly, when ss. 719(3) and (3.1) are viewed in the context of the
    statutory framework in which they appear, as they must be, the Crowns urged
    interpretation of s. 719(3.1) runs afoul of the fundamental principles of
    sentencing established under the Code and at common law.

[94]

In
Re Rizzo & Rizzo
and
Bell ExpressVu
, the Supreme Court stressed
    the central importance of context to the task of statutory interpretation.
    Under the required contextual approach, it is presumed that a harmonious,
    coherent and consistent meaning is intended between statutes dealing with the
    same subject matter. Justice Iacobucci explained in
Bell ExpressVu
, at
    para. 27:

[W]here the provision under consideration is found in an Act
    that is itself a component of a larger statutory scheme, the surroundings that
    colour the words and the scheme of the Act are more expansive.  In such an
    instance, the application of Driedgers principle gives rise to what [has been]
    described ... as the principle of interpretation that presumes a harmony,
    coherence, and consistency between statutes dealing with the same subject
    matter.  [Citations omitted.]

[95]

The
    Act is concerned with one aspect of the sentencing process  credit for
    pre-sentence custody.  But the provisions of the Act form part of an overall
    statutory scheme for sentencing and punishment, set out in the Code.  The
    construction of ss. 719(3) and (3.1), therefore, must be undertaken in the
    context of, and in a manner that is harmonious, coherent and consistent with,
    that overall statutory scheme.

[96]

And
    it is here, in my opinion, that the Crowns suggested interpretation of s.
    719(3.1) seriously founders.  Section 718.1 of the Code provides that: A
    sentence must be proportionate to the gravity of the offence and the degree of
    responsibility of the offender.  In addition, s. 718.2(b) underscores the need
    for parity between offenders in sentencing.  It states: [A] sentence should be
    similar to sentences imposed on similar offenders for similar offences
    committed in similar circumstances.

[97]

In
    my view, absent an affirmative expression of a contrary legislative intention, legislation
    that deals with sentencing and punishment, like the Act, must be interpreted in
    a manner that accords with the general principles of sentencing set out in the
    Code and that does not undermine the integrity of the criminal justice system.
[7]

[98]

The
    proportionality requirement embodied in s. 718.1 of the Code is not of recent
    origin.  On the contrary, it has long been at the heart of the principles that
    guide sentencing under Canadian law.  In
Ipeelee
, at paras. 36-37, the
    Supreme Court explained the fundamental importance of the proportionality
    requirement in sentencing law:

The fundamental principle of sentencing is that the sentence
    must be proportionate to both the gravity of the offence and the degree of
    responsibility of the offender.  As this Court has previously indicated,
this
    principle
was not borne out of the 1996 amendments to the
Code
but, instead,
has long been a central tenet of the sentencing process
... It also has a constitutional dimension, in that s. 12 of the
Canadian
    Charter of Rights and Freedoms
forbids the imposition of a grossly
    disproportionate sentence that would outrage societys standards of decency.

The fundamental principle of sentencing (i.e.
    proportionality) is intimately tied to the fundamental purpose of sentencing
    the maintenance of a just, peaceful and safe society through the imposition of
    just sanctions
.  Whatever weight a judge may wish to accord to the various
    objectives and other principles listed in the
Code
,
the resulting
    sentence must respect the fundamental principle of proportionality
.
Proportionality
    is the sine qua non of a just sanction.  First, the principle ensures that a
    sentence reflects the gravity of the offence
. This is closely tied to the
    objective of denunciation.

It promotes
    justice for victims and ensures public confidence in the justice system.

Second, the principle of proportionality ensures that a
    sentence does not exceed what is appropriate, given the moral blameworthiness
    of the offender
.  In this case, the principle serves a limiting or
    restraining function and ensures justice for the offender.
In the Canadian
    criminal justice system, a just sanction is one that reflects both perspectives
    on proportionality and does not elevate one at the expense of the other
.
    [Citations omitted; Emphasis added.]

See also
Proulx
at para. 82;
Nasogaluak
at paras. 40-42;
R. v. Hamilton
(2004), 72 O.R. (3d) 1 (C.A.), at
    paras. 88-95.

[99]

In
    addition to the core principle of proportionality, the principle of parity in
    sentencing, codified in s. 718.2(b) of the Code, promotes consistency in the
    law by directing that like offenders are to be punished in a similar manner for
    like offences.  This approach fosters fairness in sentencing and enhances public
    confidence in the proper administration of justice.

[100]

In light of
    these principles, I am unable to conclude that the crediting discretion
    accorded to sentencing judges under s. 719(3.1) does not extend to consideration
    of the loss of remission and parole eligibility during remand custody.  Such a
    conclusion would set s. 719(3.1) on a collision course with the touchstone
    sentencing principles of proportionality and parity, leading to unjust
    sentences and a corresponding erosion of public faith in the criminal justice
    system.

[101]

If, as the Crown
    maintains, the lack of remission and parole eligibility during remand custody
    can
never
justify enhanced credit for pre-sentence custody under s.
    719(3.1), then the effective sentences of offenders denied bail or who do not
    seek bail, instead remaining in custody pending trial, will be longer than
    those of like offenders, charged with like offences, who do seek and are
    granted bail.  The CLAO offers this hypothetical illustration:

[T]wo offenders commit a similar crime, are otherwise similarly
    situated, and are both sentenced to 90 days imprisonment. Offender A was released
    on bail immediately and served no pre-sentence custody.  When sentenced to 90
    days, he will actually spend 60 days at the provincial jail before his
    statutory release date (2/3 of his sentence).  Offender B had no sureties to
    sign bail for him and was detained pending his trial, which was held on the
    earliest date available, 60 days after his arrest.  If convicted and sentenced
    to 90 days, with his pre-sentence custody credited on a 1:1 basis, Offender B
    will be sentenced to a further 30 days jail, of which he will actually serve
    20.  The identically culpable offenders have thus served a significantly
    different number of days in jail  Offender A, 60 days and Offender B, 80
    days.  Had Offender Bs pre-sentence custody been credited at 1.5:1, to take into
    account that he would receive no remission for that time, he would have served
    the same actual sentence as Offender A  60 days.

[102]

The sentencing
    judge in this case granted enhanced credit for pre-sentence custody at the rate
    of 1.5:1 precisely to avoid this type of disparate and inequitable treatment of
    offenders, in contravention of the proportionality and parity principles of
    sentencing.

[103]

In my view,
    under the applicable rules of statutory interpretation and in the interests of
    justice, an interpretation of s. 719(3.1) of the Code that avoids such unfair
    sentencing disparities is clearly preferable to one that facilitates such
    disparities.  As the CLAO points out, whether an accused has been granted bail
    or held in custody pending trial is not a proper consideration on sentencing.  While
    the relevant considerations on a bail hearing are in some respects similar to
    those applicable at a sentence hearing (
e.g.
the existence of a prior
    criminal record or community support mechanisms), the test for bail and the determination
    of a fit sentence are conceptually and functionally different.

[104]

The Crown
    submits that the prospect of such disparate sentencing results was a live issue
    during the parliamentary debates on Bill C-25.  It points out that various
    amendments to Bill C-25 were proposed during the debates to take account of the
    loss of remission and parole eligibility by remand offenders.  The Crown argues
    that the defeat of these proposed amendments confirms that Parliament was
    sensitive to the potential effect of s. 719(3.1) on remand offenders and made a
    deliberate policy choice to exclude the loss of remission and parole
    eligibility for such offenders from the circumstances that may support enhanced
    credit for pre-sentence custody under s. 719(3.1).

[105]

I see two
    difficulties with this argument.  First, recall the words of the Supreme Court
    in
Ipeelee
, at paras. 36-37, quoted above, that proportionality is the
    fundamental principle of sentencing, the
sine qua non
of a just
    sanction and a central tenet of the sentencing process.  When coupled with
    the parity principle of sentencing, proportionality takes on an even more
    pivotal role in sentencing.

[106]

There is no
    doubt that Parliament, having enacted the sentencing objectives and principles
    in the Code, is free to alter them, so long as this occurs without violating the
Charter
.  But if Parliament intended to depart so profoundly from
    these bedrock principles of Canadian sentencing law (assuming that such a sea
    change in the law could survive full constitutional scrutiny), I have no
    hesitation in concluding that the legislator would have employed clear and
    unequivocal statutory language to do so.  Parliament did not do so under the
    Act.

[107]

And this leads
    to the second difficulty.  I have already concluded that the legislative record
    in this case is not a reliable indicator of Parliaments intention regarding
    the meaning and scope of the word circumstances in s. 719(3.1).  This
    includes the entire legislative record.  Further, for the reasons already
    given, I see nothing in the language, structure or sequencing of ss. 719(3) and
    (3.1) that evidences, expressly or by necessary and logical implication, a clear
    intention to effect the sweeping alteration of sentencing law described above.

[108]

My seventh, and
    final, reason for rejecting the narrow interpretation of circumstances
    contended for by the Crown is a general, but compelling one.  The fundamental
    task of a sentencing judge is to fashion a fit sentence, tailored to the
    circumstances of the particular offence and the particular offender.  The task
    of appellate courts on appeals against sentence, unless the sentence is one
    fixed by law, is to consider the fitness of the sentence appealed against and
    either vary the sentence within the limits prescribed by law for the offence of
    which the accused was convicted, or dismiss the appeal: s. 687(1) of the Code.

[109]

Thus, during
    both the sentencing phase of a trial and on appeal against sentence, the focus
    of the adjudicative inquiry is on the fitness of a sentence in the context of
    the facts of a specific case.  On that essential inquiry, all relevant factors
    are in play, at all levels of courts, concerning the offence, the offender and
    the governing principles of sentencing.  Once again, if Parliament had intended
    to circumscribe the long-established roles of sentencing and appellate judges
    by limiting the circumstances that may bear on the crediting of pre-sentence
    custody in the manner urged by the Crown, it may fairly be said that this
    intention would be clearly expressed in affirmative language.  Nothing in s.
    719(3.1) of the Code reflects this intention.

[110]

What, then, was
    the intention of Parliament in enacting ss. 719(3) and (3.1)?  As suggested by
    the long title of Bill C-25
An Act to amend the Criminal Code (Limiting
    Credit For Time Spent in Pre-Sentencing Custody)
, the Act is indisputably
    designed to limit the amount of credit available for pre-sentence custody.
    This purpose is manifest from the introduction of maximum credits for
    pre-sentence custody under both ss. 719(3) and (3.1).

[111]

Contrary to the
    Crowns submission, this legislative purpose is neither defeated nor impaired
    by an interpretation of s. 719(3.1) that permits consideration of the loss of
    remission and parole eligibility during remand custody as a circumstance that
    may support enhanced credit for pre-sentence custody.  I say this because the
    Act eliminates any prospect for crediting such custody at a 2:1, or greater,
    rate.  Indeed, it limits such crediting to the maximum rate of 1.5:1.  These
    are dramatic changes to the previously established practice of ordinarily crediting
    pre-sentence custody at the 2:1 rate.

[112]

Limiting credit
    for pre-sentence custody to that calculated at a maximum rate of 1:1 (s.
    719(3)) or at a rate greater than 1:1 up to a maximum of 1.5:1 (s. 719(3.1)) is
    a significant curtailment of the credit previously available for pre-sentence
    custody and of the wide discretion formerly exercised by sentencing judges when
    determining the appropriate amount of such credit to be granted in a particular
    case.  A narrow construction of the phrase if the circumstances justify it is
    therefore not necessary to achieve the stated purpose of the Act.

(d)

Conclusion

[113]

In this case, in
    my opinion, the requisite contextual and purposive analysis reveals nothing
    within s. 719(3.1) itself, the four corners of ss. 719(3) and (3.1) read
    together, or the overall sentencing and punishment regime of the Code that bars
    consideration of the absence of remission and parole eligibility during remand
    custody as a relevant and proper circumstance for the potential grant of
    enhanced credit for pre-sentence custody under s. 719(3.1).

[114]

It follows that
    I share the view expressed by Beveridge J.A. in
Carvery
, at paras. 40
    and 84, that the phrase if the circumstances justify it as it appears in s.
    719(3.1) of the Act is not ambiguous.  This phrase is not unclearly
    circumscribed.  Apart from the maximum cap of 1.5:1 for enhanced credit and the
    explicit exclusions from 1.5:1 crediting set out in s. 719(3.1), the phrase is
    simply uncircumscribed altogether.

[115]

Further, as
    Beveridge J.A. also observed in
Carvery
, at para. 40, the fact of
    persisting judicial disagreement at the trial level concerning the meaning of
    the phrase if the circumstances justify it and, in particular, the word
    circumstances in s. 719(3.1) does not demonstrate ambiguity in law.
Bell
    ExpressVu
holds, at para. 30, that differing interpretations of a
    statutory provision by the courts or doctrinal writers do not reveal ambiguity
    in the provision under scrutiny.  Rather, a court must evaluate a claim of
    statutory ambiguity after undertaking the contextual and purposive interpretive
    analysis mandated by
Re Rizzo & Rizzo
and
Bell ExpressVu
.
    See also
R. v. Mac
(2001), 140 O.A.C. 270 (C.A.), at para. 27, revd on
    other grounds 2002 S.C.C. 24, [2002] 1 S.C.R. 856.

[116]

In the absence
    of ambiguity, other rules of statutory interpretation, such as those pertaining
    to the strict construction of penal statutes and the
Charter
values
    presumption are inapplicable:
Bell ExpressVu
, at para. 28;
R. v.
    Tse
, 2012 SCC 16, [2012] 1 S.C.R. 531, at para. 20;
R. v. Gomboc
,
    2010 SCC 55, [2010] 3 S.C.R. 211, at paras. 86-87;
R. v. Rodgers
, 2006
    SCC 15, [2006] 1 S.C.R. 554, at paras. 18-19.  If I am in error, and if these principles
    were applied here, it would strengthen and support my interpretation of s.
    719(3.1).
[8]

[117]

That said, nothing
    in these reasons should be understood as suggesting that enhanced credit will
    be available under s. 719(3.1) to every remand offender on the basis of the
    absence of remission and parole eligibility.  There must be some basis in the
    evidence or the information before the sentencing judge to support the
    conclusion that this factor merits enhanced credit for a particular offender in
    a given case.

[118]

In
Vittrekwa
,
    the court held, at para. 77, that enhanced credit under s. 719(3.1) was
    available on evidence that the accused would be deprived of an opportunity to
    earn remission to which he would otherwise be entitled while in remand
    custody.  The decision in
Stonefish
is to the same effect.   I endorse
    and underscore the following comments of Steel J.A. in
Stonefish
, at
    paras. 81-83 and 85:

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.

A trial judge has discretion to grant or not grant the enhanced
    credit.
For example, an otherwise eligible accused who intentionally
    delayed proceedings by continuously discharging counsel, or an accused who
    created delay by not cooperating with probation officers during the preparation
    of the pre-sentence reports, or an accused who refuses to participate in
    treatment programs may not receive enhanced credit despite the loss of earned
    remission or may not receive any credit at all
, depending on the
    discretion of the sentencing judge.  All the circumstances should be taken into
    account.

But, on the other hand, if the accused can show that his or
    her behaviour on remand was such that they would have received remission had
    they been a sentenced prisoner, that is a factor that a court may take into
    account when exercising its discretion to award enhanced credit for [pre-sentence
    custody].

...

Based on evidence specific to the particular offenders
    behaviour while on remand, the loss of remission is transformed from a
    universal characteristic into an individual one.

[Emphasis added; Citations omitted.]

See also
Carvery
, at paras. 65-66.
[9]

[119]

I conclude where
    I began.  In my view, properly construed, s. 719(3.1) of the Code permits a
    sentencing judge to credit pre-sentence custody up to a maximum of 1.5:1 for
    each day spent in pre-sentence custody where, on consideration of all relevant
    circumstances, such credit is necessary to achieve a fair and just sanction in
    accordance with the statutory scheme for sentencing and punishment set out in
    the Code.  On a proper record, the relevant circumstances that may justify this
    enhanced credit include ineligibility for remission and parole while in remand
    custody.

(4)

Credit for Pre-Sentence Custody in this Case

[120]

It remains to
    consider whether the sentencing judge erred by granting enhanced credit, at the
    rate of 1.5:1, on the basis of the respondents loss of remission and parole
    eligibility during his ten and one-half months of pre-sentence custody.

[121]

Recently, in
R.
    v. Joseph
, 2012 BCCA 359, 326 B.C.A.C. 312, the British Columbia Court of
    Appeal considered the nature of the evidence required from an accused who seeks
    to establish that the circumstances justify enhanced credit for time spent in
    pre-sentence custody.  Justice Harris concluded, at para. 31:

The [Act] does not explicitly amend the traditional sentencing
    procedure.  There is nothing in s. 719 that amends the procedure by
    implication.  There is no reason in principle to depart from the general rules
    applicable to all sentencing hearings when a court is asked to decide whether
    the circumstances justify granting enhanced credit.

[122]

I agree.  The
    same general principles that govern the admission of evidence and the provision
    of information to the court for the purpose of sentencing also apply to
    determining the amount of credit, if any, to be granted for pre-sentence
    custody under ss. 719(3) and (3.1).  See
Joseph
, at paras. 32-33.

[123]

Thus, the
    provision of information relevant to a claim for enhanced credit need not be an
    onerous task.  While formal evidence of an accuseds likely prospects for
    remission or parole eligibility may be lead at a sentencing hearing,
    information bearing on these issues (
e.g.
information regarding an
    accuseds conduct during detention; an accuseds co-operation with authorities
    and adherence to prison rules; or an accuseds efforts to advance to trial) may
    also be furnished to a sentencing judge through counsels sentencing
    submissions, by agreement between the prosecutor and the defence, or otherwise
    as contemplated under ss. 720-727 of the Code.

[124]

In this case,
    minimal evidence and information was before the sentencing judge bearing on the
    respondents prospects for remission or parole eligibility.  The sentencing
    judge, of course, was aware that the respondent had pleaded guilty at a
    relatively early stage, thus saving Kaitlyn Ingram and her family the anguish
    of a potentially prolonged and emotionally difficult trial.  The evidence also
    established that the respondent had accepted full responsibility for his
    actions, both in his communications with Kaitlyn and with the police, from the
    outset.  Further, the respondent conveyed his remorse to the Ingram family at
    the sentencing hearing.

[125]

More
    importantly, Crown counsel at trial (not counsel on appeal) acknowledged in her
    sentencing submissions that the respondent deserved credit on a 1.5:1 basis for
    much of his pre-trial detention.  By her reference to the likelihood of early
    parole for the respondent, she also conceded, in effect, the respondents good
    behaviour while in remand custody.  Certainly, she did not suggest that the
    respondents conduct would in any way disentitle him to earned remission or
    negatively affect his statutory release and parole eligibility.  Before this
    court, the Crown acknowledges that it is appropriate that some credit be
    accorded to the respondent for his pre-sentence custody, at the rate of 1:1.

[126]

In all these
    circumstances, I see no error in the sentencing judges ultimate conclusion
    that the circumstances of this case justified the granting of enhanced credit
    to the respondent for his pre-sentence custody at the rate of 1.5:1.  I would
    therefore defer to the sentencing judges ruling on this issue.

VI.     Disposition

[127]

For the reasons
    given, I would dismiss the Crowns sentence appeal.

Released: EAC March 12, 2013

E.A.
    Cronk J.A.

I
    agree S.E. Pepall J.A.

I
    agree M. Tulloch J.A.

[1]

Order Fixing February 22, 2010 as the Date of the Coming into Force of the
    Act
, SI/2010-9, (2010) C. Gaz. 11, 213 (
Truth in Sentencing Act
).

[2]
In the earlier decision of
R. v. Mayers
,
    2011 BCCA 365, 310 B.C.A.C. 188, the British Columbia Court of Appeal declined
    to consider the interpretation of ss. 719(3) and (3.1), the matter having been
    raised in that case for the first time on appeal.  See also, for a brief
    discussion of the issue,
R. v. Lee
, 2012 ABCA 17, 524 A.R. 22, at
    paras. 71-72.  In addition, the issue of the retrospective application of the
    Act has been considered, and rejected, by the Alberta Court of Appeal in
R.
    v. Serdyuk
, 2012 ABCA 205, 533 A.R. 199.

[3]
In contrast, in
Johnson
, the accused brought an application asserting
    that ss. 719(3) and (3.1) of the Code (which had gone into effect four days
    before the accused allegedly sold $20 worth of cocaine to an undercover police
    officer in Toronto), violated his constitutionally-protected rights under ss. 7
    and 15 of the
Charter of Rights and Freedoms
.  The accused argued that
    by reason of being held on remand, he would be treated disproportionately from
    an offender who was free on bail pending trial and sentence.  The trial judge
    upheld the constitutionality of ss. 719(3) and (3.1) on the basis that the loss
    of remission and parole eligibility during pre-sentence custody justified
    enhanced credit under s. 719(3.1), despite the widespread applicability of the
    loss of remission and parole eligibility for remand offenders throughout
    Canada.

[4]
Under s. 127(3) of the
Corrections and Conditional Release Act
, S.C.
    1992, c. 20, the statutory release date of an offender who is serving a
    penitentiary sentence is the day on which the offender completes two-thirds of
    the sentence.  Under s. 120 of the same statute, an offender is eligible for
    full parole beginning one-third of the way through sentence or seven years of
    the sentence, whichever is lesser.  By the combined effect of the rules governing
    statutory release and parole, an offender is eligible to be granted parole
    anywhere between one-third and two-thirds of the way through the completion of
    sentence. Earned remission, on the other hand, is governed by the
Prisons
    and Reformatories Act
, R.S.C. 1985, c. P-20.  Generally, earned remission
    is available to an offender between one-third and two-thirds of the way through
    sentence, depending on the offenders behaviour while in custody and his or her
    rehabilitative prospects.  An offender earns remission credit by obeying prison
    rules and by participating in available programs while incarcerated.

[5]
In their submissions, the parties refer, variously, to pre-trial and
    pre-sentence custody.  In this case, Sean was sentenced on the same day as his
    trial.  I therefore refer to the detention at issue as pre-sentence custody
    throughout these reasons.

[6]
The remaining provisions of the Act require that reasons be given for any
    credit granted for pre-sentence custody and stated in the record (s. 719(3.2))
    and that the record and warrant of committal state the offence, the amount of
    time spent in custody, the term of imprisonment that would have been imposed
    before any credit was granted, the amount of time credited, and the sentence
    imposed (s. 719(3.3)).  The Act also provides that the failure to comply with
    these requirements does not affect the validity of the sentence imposed (s.
    719(3.4)).

[7]
For the adoption of this approach in the context of legislation dealing with
    mandatory minimum sentences, see
Wust
at para. 22.

[8]

Charter
values regularly, and properly, inform the
    development of the common law.  However, absent genuine ambiguity in the
    meaning of a statutory provision, the
Charter
values interpretive principle does not apply to construction of the provision
    in question.

[9]

Stonefish
, at paras. 91-94, includes a detailed discussion of the type
    of evidence or information required to support a claim for enhanced credit for
    pre-sentence custody.


COURT OF APPEAL FOR ONTARIO

CITATION: Ricciuto v. Somers, 2013
    ONCA 153

DATE: 20130314

DOCKET: C55496

Doherty, MacPherson and Watt JJ.A.

BETWEEN

Donald Ricciuto

Applicant (Appellant)

and

John W. Somers, Ballybock Enterprises Inc.,
    Elaine Ricciuto, Peter M. Callahan and Sheriff, Regional Municipality of Halton

Respondents (Respondents in Appeal)

Anser Farooq, for the appellant

P. Callahan, for the respondents

Heard and released orally: March 12, 2013

On appeal from the order of Justice Meredith Donohue of
    the Superior Court of Justice, dated April 19, 2012.

ENDORSEMENT

[1]

The appellant Donald Ricciuto appeals the judgment of Donohue J. of the
    Superior Court of Justice dated April 4, 2012 dismissing his application for,
inter
    alia
, a declaration that the respondent Peter Callahan, a lawyer, breached
    the deemed undertaking rule and shared information of a CIBC writ against the
    appellant with the respondent John Somers.  The appellant alleged that Ms.
    Somers improperly used this information in negotiating an assignment of the
    writ from CIBC to Mr. Somers company, Ballybock Enterprises Inc.

[2]

The assignment of CIBCs writ against the appellant to Somers took place
    on September 29, 2010.  The appellants position before the application judge
    was that Somers (the appellants father-in-law) and Callahan (the appellants
    wifes lawyer in matrimonial proceedings relating to a marriage breakdown) knew
    of the appellants debt to CIBC through the matrimonial litigation, i.e. before
    September 29, 2010.  More significantly, they were aware of the reduced amount
    that CIBC had indicated to the appellant it was prepared to accept in
    satisfaction of the debt.  The appellant claims that Somers used this
    information in acquiring the debt.

[3]

The application judge rejected this submission.  She referred to a
    chronology of events including:

10.     Mr. Somers through Ballybock purchased the writ   from
    CIBC by an assignment Sept. 29, 2010 and       ultimately registered the
    assignment with the        Sheriff in January 2011.

11.     In that intervening period a letter was sent by the    appellants
    former counsel Ms. Haber Dated         October 4, 2010 disclosing the CIBC Writ
    and the  Applicants Negotiations to settle that debt for a           reduced
    amount.

[4]

Against this factual backdrop, the motion judge concluded that the
    respondents had not breached the deemed undertaking rule, essentially for two
    reasons:

15.     Rule 30.1.05(5)(a) of the Rule on deemed     undertakings
    specifically does not prohibit the use   of evidence or any information for any
    purpose          that is filed with this court.

16.     On a review of the evidence and exhibits it is          certain
    that the purchase and assignment of the          Writ occurred before the
    correspondence of Ms.    Haber on October 4, 2010.

17.     I conclude therefore that the deemed undertaking   rule
    has not been offended and deny the relief        sought by the Applicant.

[5]

The appellant makes two submissions on the appeal.

[6]

First, the appellant contends that the trial judge erred in relying on
    evidence given by counsel (Mr. Callahan) during his submissions.

[7]

We do not accept this submission.  Although Mr. Callahan was a named
    respondent in the application, the appellant consented to his appearance as
    counsel.  Moreover, on our review of the record, to the extent that Mr.
    Callahans submissions went beyond the record on factual issues, they were not
    relied on by the application judge.

[8]

Second, the appellant submits that the application judge erred by
    finding that there was no breach of the deemed undertaking rule because the
    respondents were not aware of the information in the matrimonial proceeding
    before CIBC assigned its writ to Ballybock.

[9]

This was a factual finding made by the application judge.  In our view,
    there was sufficient material in both the Ricciuto and Somers affidavits to
    support her conclusion; in any event, it is far removed from being a palpable
    and overriding error.

[10]

The
    appeal is dismissed.

[11]

The
    cross-appeal is abandoned.

[12]

This
    is not a case for costs.  Although we appreciate that the respondent did not
    object to Mr. Callahan appearing as counsel either here or below, the reality
    is that he was a named respondent and that his conduct was central to the
    factual circumstances giving rise to both the application and this appeal.  He
    should not have appeared as counsel in either forum.

Doherty
    J.A.

J.C.
    MacPherson J.A.

David
    Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Salama v. Salama, 2013
    ONCA 152

DATE: 20130314

DOCKET: C56242

Sharpe, Epstein and Pepall JJ.A.

BETWEEN

Maher Salama

Respondent

and

Nadia Salama

Appellant

Nadia Salama, in person

Katherine Iima
Heard: March 12, 2013
On appeal from the judgment of Justice Craig Perkins of
    the Superior Court of Justice, dated October 11, 2012.
APPEAL BOOK ENDORSEMENT
[1]

The appellant appeals the order of Perkins J. dismissing her motion to
    set aside the default judgment of Speigel J. We see no error in the reasons of
    Perkins J. He identified and applied the correct legal test. He found that the
    appellant had failed to explain her failure to respond to the proceedings and
    her delay in moving to set aside the default judgment.
[2]

Moreover, to her benefit, he ordered that she be permitted to pursue the
    issue of support as a motion to change. That matter is currently before the
    Superior Court. We see no basis upon which this court could interfere with
    Perkins J.s order.
[3]

Accordingly, the appeal is dismissed. Costs to the respondent fixed at
    $7,500 inclusive of disbursement and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Salisbury v. Sun Life Assurance Company
    of Canada

2013 ONCA 182

DATE: 20130325

DOCKET: C55837

Rosenberg, Tulloch and Lauwers JJ.A.

BETWEEN

Glynis Salisbury

Plaintiff/Appellant

and

Sun Life Assurance Company of Canada, Sunlife
    Financial and McMaster University

Defendants/Respondents

Jillian Van Allen, for the appellant

Duncan J. McDuff, for the respondent, Sun Life Assurance
    Company of Canada

George Avraam and Cherrine Chow, for the respondent,
    McMaster University

Heard and released orally: March 22, 2013

On appeal from the order of Justice Dale Parayeski of the
    Superior Court of Justice, dated July 5, 2012.

ENDORSEMENT

[1]

While there was some evidence that the plaintiff lacked the capacity to
    instruct counsel to commence the action, the application judge erred in
    principle in failing to consider the application of Rule 7. Rather than the
    action being dismissed it should have been stayed in accordance with Rule
    15.02(4) and (5) until an application could be made under Rule 7 for
    appointment of a litigation guardian.

[2]

Accordingly, the appeal is allowed, the order dismissing that action set
    aside and an order issued staying the action pending an application for an
    order appointing a litigation guardian. If no application is made to appoint a
    litigation guardian within 90 days, the respondents may move under Rule 15.02
    to dismiss the action or for appointment of the Public Guardian and Trustee
    under Rule 7.

[3]

In accordance with Rule 15.02(5) no other steps may be taken without
    leave of the court. The costs order against Mr. Ferro will stand. On this
    record he commenced the action without the authority of a client competent to
    instruct the commencement of the action and has does nothing in the many months
    since that time to seek out a litigation guardian in this action. The appellant
    is entitled to her costs of the appeal fixed at $7,500 inclusive of
    disbursements and HST payable by Sun Life. There will be no costs order against
    McMaster.

M. Rosenberg J.A.

M. Tulloch J.A.

P. Lauwers J.A.