Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut
Citation:

R. v. Takawgak, 2015 NUCJ 40

Date:
Docket:
Registry:

20151023
11-13-29
Iqaluit

Crown:

Her Majesty the Queen

-and-

Accused:

Silas Takawgak

________________________________________________________________________
Before:

The Honourable Madam Justice Cooper

Counsel (Crown):
Counsel (Accused):

A. Porteous; S. Bailey (Student Counsel)

D. Berg

Location Heard:
Date Heard:
Matters:

Igloolik, Nunavut; Iqaluit, Nunavut

January 13-15, 2015; June 5, 2015; October 23, 2015
Criminal Code, s. 146(1); 151 x2; 243.4; 245; 246.1 x2;
271 x3; Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (UK), 1982, c 11, s 11(i)

REASONS FOR JUDGMENT

(Delivered Orally)

(NOTE: This document may have been edited for publication)

I. INTRODUCTION
[1]

Mr. Takawgak has been found guilty of a number of offences that

occurred in the 1980s and 1990s.

[2]

All of the offences predate the enactment of the amendments to the

Criminal Code, RSC 1985, c C-46 [Criminal Code], set out in the Truth
in Sentencing Act, SC 2009, c 29 [the Act]. The Act limits the amount
of time that can be credited to an offender for time spent in pre-trial
custody.

[3]

The Defence challenges the constitutionality of these amendments in

the context of this case on the grounds that they contravene Section
11(i) of the Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
[Charter]. Section 11 states that, if a punishment has varied between
the time of the offence and the time of sentencing, an offender is
entitled to the lesser punishment.

II. BACKGROUND
[4]

Mr. Takawgak is before the court for sentencing on three sets of

offences: the first set occurred between 1987 and 1988; the second,
between 1993 and 1996; and the third, between 1994 and 1998. Mr.
Takawgak was charged with the offences on March 13, 2013, and
was found guilty on February 6, 2015. The Act came into force on
February 22, 2010.

[5]

The Act applies to all offenders charged after the date it came into
force, regardless of the date of the offence. Accordingly, the credit
that Mr. Takawgak can receive for his time in pre-trial custody is
limited by the Act.

III. RELEVANT LEGISLATION

[6]

Although the section numbers have changed over the 1980s and
1990s, the substance of the Criminal Code provision relating to credit
for pre-trial custody had, prior to the Act, remained unchanged since
1970. It read as follows:
In determining the sentence to be imposed on a person convicted of an
offence, a justice, provincial court judge or judge may take into
account any time spent in custody by the person as a result of the
offence.

[7]

The Act has amended the relevant section. It now reads as follows:
Determination of Sentence
719 (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.
Exception
(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).

[8]

Section 11(i) of the Charter states:

Any person charged with an offence has the right
if found guilty of the offence and if the punishment for the offence
has been varied between the time of commission and the time of
sentencing, to the benefit of the lesser punishment.

IV. ISSUES
[9]

There are three issues to be determined:

1. Whether pre-trial custody is punishment for an offence?
2. If pre-trial custody is punishment, whether the punishment has
varied between the time of the commission of the offence and the
time of sentencing? and,
3. If pre-trial custody is punishment for an offence and the relevant
provisions of the Act contravene s. 11 of the Charter, whether these
provisions can be saved under s. 1 of the Charter?

V. CASE LAW
A. Is pre-trial custody punishment?
[10] In R v Rodgers, 2006 SCC 15, 207 CCC (3d) 225 [Rodgers], the
Supreme Court of Canada considered the validity of a Criminal Code
provision permitting judges to authorize the taking of DNA samples
from offenders convicted prior to the provision having been enacted.
One of the issues to be determined was whether the impugned
provision contravened s. 11(i) of the Charter, on the basis that it
amounted to an additional punishment that was not available at the
time the offence was committed.
[11] In Rodgers, the court referred to its earlier decision in R v
Wigglesworth, [1987] 2 SCR 541, 37 CCC (3d) 385, in which a twoprong test had been articulated for determining if the s. 11 Charter
provisions were engaged. Under this test, a person can claim the
protection of s. 11 if:
1. The proceedings are, by their nature, criminal
proceedings; or,
2. The punishment involves the imposition of true penal
consequences (Rodgers, at para 60).

[12] However, in keeping with the more expansive approach to be taken to

Charter interpretation, the court in Rodgers adopted a more liberal
approach to this test. The court held that a consequence will form
punishment when it forms part of the arsenal of sanctions to which an
accused may be liable in respect of a particular offence and the
sanction is imposed in furtherance of the purpose and principles of
sentencing. (Rodgers, at para 63).
[13] In Canada (Attorney General) v Whaling, 2014 SCC 20, [2014] 1 SCR
392 [Whaling], the Supreme Court considered whether the abolition of
early parole violated s. 11(h) of the Charter. The court was concerned
with offenders who had been sentenced prior to the abolishment of
early parole, but who were affected by the change because they were
still serving their sentences at the time the legislation was enacted.
[14] While the court iterated, [t]hat incarceration constitutes punishment
is a core underlying assumption of the Rodgers test (Whaling, at para
51), it went on to state that the Rodgers test was ill-suited for the
issue at hand because of its formalistic approach (Whaling, at para
52). The court in Whaling supported a functional approach. Rather
than looking at whether the penalty fit into a category of what would
traditionally be considered criminal sanctions, the court looked at
whether the harshness of the punishment had, in fact, been
increased.
[15] The court stated that the dominant consideration in determining
whether a retroactive change to legislation constituted punishment
was the extent to which an offenders settled expectation of liberty
had been thwarted by the change (Whaling at para 60).
[16] The decision in Liang v Canada (Attorney General), 2014 BCCA 190,
311 CCC (3d) 159, leave to appeal to SCC refused, 35972 (29
January 2015) [Liang], also considered the provisions abolishing early
parole. The court was dealing with offenders who had committed
offences prior to the abolishment of the early parole provisions, but
who were sentenced after the provisions came into force.
[17] Liang addresses an issue which arises in the matter before me, that
being whether an offender can have a settled expectation of liberty
(Whaling), prior to being charged or sentenced.

[18] The court in Liang addresses the issue as follows:

[19] [] I do not see settled expectation of liberty to be a
psychological standard directed at vindicating the subjective
expectation of offenders, but instead, an objective standard to
determine whether the punishments has in fact increased.
[]
In other words, I see the objectively ascertainable effect of extended
incarceration as constituting the effective punishment (at para. 71)
[referring to Whaling]. On this analysis, where the effect of the
changes to the parole system appreciably increases the amount of time
an offender would be incarcerated, in comparison to what he or she
would have been expected to serve under the prior regime, it will
constitute punishment. What matters is whether the changes
substantially increase the risk of additional incarceration, thereby
frustrating an objective expectation of liberty, not whether the
offenders subjective expectations have been dashed. (Liang, at paras
19, 23).

[19] The objective standard and the reasoning in Liang were adopted by
the Ontario Court of Appeal in Canada (Attorney General) v Lewis,
2015 ONCA 379, 336 OAC 34 [Lewis].
[20] With respect to this case, at the time of the commission of these
offences, trial judges were statutorily granted the discretion to
consider time spent in pre-trial custody in determining the appropriate
sentence. While the amount of credit to be given for pre-trial custody
was in the purview of the trial judge, the courts had developed
practices and guidelines in order to provide some consistency in
approach, particularly within each jurisdiction.
[21] The impact on the actual time potentially spent in custody because of
the restriction of discretion now contained in the amended legislation
is well illustrated in this case:
The offender has been in pre-trial custody for 954 days
(31.8 months - almost 2 years and 8 months).
The maximum credit that could be granted under the new
regime would be 1,431 days (47.7 months - almost 4
years).

Assuming he was granted credit at the rate of 2:1 (which

was common in this jurisdiction at the time of the
commission of these offences), he would receive credit for
1,908 days (63.6 months or 5.3 years).
[22] The difference in the actual time that would be spent in jail between
the new and old regimes is just short of 16 months. This can hardly be
described as incidental or of little consequence.
[23] I agree with the reasoning in Liang, adopted by the court in Lewis,
and find that the provisions of the Act constitute punishment to the
extent that they restrict credit for pre-trial custody in relation to
offences predating the amendments.
B. Did the Truth in Sentencing provisions vary the punishment
between the time of the commission of the offence and the time of
sentencing?
[24] It is accepted that, for s. 11(1) of the Charter to be engaged by a
variation in punishment, the punishment must be one set out in
legislation. It is not sufficient that the range of sentences actually
given by the courts have varied during the relevant time period if the
range permitted by statute has not changed (See R v RD, 1996
CanLII 4973, 48 CR (4th) 90).
[25] The question is not whether the court would, in fact, impose the lesser
of the available punishments. The question is whether the sentencing
court is permitted to consider the full range of sentencing options that
were available at the relevant times? Any other interpretation would
render the protection of s. 11(i) of the Charter hollow, as it would
require the statute to specify a penalty or at least a mandatory
minimum penalty and for that specific penalty to be varied for the
Charter protection to be engaged.
[26] The provisions of the Act preclude the sentencing judge from
considering enhanced credit for remand at a rate greater than 1.5:1.
This limitation has the potential to significantly impact the amount of
time an offender is actually incarcerated.
[27] I conclude that the punishment has varied between the time of the
commission of the offence and the time of sentencing by virtue of the
effect of the provisions of the Act.

VI. ANALYSIS
A. Can the provisions be saved pursuant to s. 1 of the Charter?
[28] Section 1 of the Charter provides:
The Canadian Charter of Rights and Freedoms guarantees the rights
and freedoms set out in it subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and
democratic society.

[29] The Oakes test, found in R v Oakes, [1986] 1 SCR 103, 24 CCC (3d)
321, sets out the analytical framework for determining whether the
impugned legislation can be saved pursuant to s. 1 of the Charter.
The legislation will be valid where, on the balance of probabilities:
a) The purpose of the legislation is pressing and substantial;
and
b) The means through which Parliament seeks to further its
goals are proportionate, in that the means:
a) are rationally connected to Parliaments purpose,
b) minimally impair the right in question, and
c) are proportionate in their effects.
(i). Purpose of the legislation
[30] The relevant provisions of the Act were intended to address the issue
of overpopulation in remand units by providing a disincentive to
accumulating remand time. The intention was to have matters move
through to resolution more quickly, thereby allowing offenders to
access programming, and for time actually spent in jail to more
accurately reflect the length of the imposed sentence. The
overarching goal was to foster confidence in the administration of
justice.

[31] For the purposes of this case, however, it is not the broad objective of
the overall regime in the Act that must be considered; it is the
objective and purpose of only the impugned portion of the legislation
(See Liang, at para 48; R v RS, 2015 ONCA 291 at para 39, 20 CR
(7th) 336 [RS]). As was stated in RS: [] the question is not whether
limiting credit for pre-sentence custody generally is justified; rather,
the question is whether it is justified to limit credit for the group of
offenders like the [accused], who are otherwise entitled under the
Charter to lesser punishment. (RS).
[32] Accordingly, it is the part of the legislation dealing with retroactive
application to offenders who committed offences prior to its coming
into force which must be considered. This section reads as follows:
Application persons charged after coming into force
5. Subsections 719(3) to (3.4) of the Act, as enacted by section 3,
apply only to persons charged after the day on which those
subsections come into force. (The Act)

[33] The Crown submits that the purpose of s. 5 of the Act is to ensure
uniformity, consistency, and certainty in the application of the
legislation. These arguments were also made in RS.
[34] In RS, the court also considered a further purpose of s. 5 of the Act: to
expedite the transition from the old regime to the new regime and to
promote the overall objectives of the legislation.
[35] I agree with the courts reasoning in RS that, in any case which
engages s. 11(i) of the Charter, an argument can be made for the
necessity of retroactive application of the new regime in order to
ensure both certainty and a rapid transition from one regime to
another (See RS at para 43). This transitional period, however, is
precisely what is contemplated by s. 11(i) of the Charter. Certainty
and ease of application, while desirable, cannot override
constitutionally protected rights.
[36] The test is whether the purpose of the impugned section is pressing
and substantial. In this instance, the impugned section is only the
implementation provision. This results in different considerations than
those contemplated when determining whether the purpose of the
legislation, in its entirety, is pressing and substantial.

10

[37] I do not find that clarity and ease of application during the transition
period from one pre-trial credit regime to another is a pressing and
substantial purpose.
B. Proportionate means
(i). Rational connection
[38] Section 5 of the Act provides a clear demarcation for determining if
the legislation applies, thereby enhancing clarity and ease of
application of the legislation. This is particularly so in those instances
where the offence date covers a period of time which straddles the
pre- and post-implementation dates of the legislation. I find that there
is a rational connection between the purposes of s. 5 of the Act and
the means set out to achieve the purposes.
(ii). Minimal infringement
[39] The Crown submits that Parliament had three options in implementing
the legislation: it could apply to only those who committed offences
after the legislation was in force, to those charged after the legislation
came into force (the option ultimately chosen by Parliament), or to all
offenders in remand at the time it came into force. The Crown submits
that the chosen option is a compromise between effective
implementation of the provision and the protection of Charter rights.
[40] The option with the least infringement on constitutional rights would
be that in which the legislation applies only to those who committed
offences after its coming into effect. Failing to choose this option has
resulted in a significant impact on the small group of offenders whose
offences pre-date the legislation and whose charges post-date it. It
cannot be said that there is minimal infringement on the Charter rights
of an individual such as the accused, who stands to lose significant
credit for remand time.
(iii). Proportionality
[41] The deleterious effects of the legislation on the individuals affected by
it can be significant, depending on the circumstances. As
demonstrated by this case, the impact of the legislation can
significantly increase the amount of time spent in custody. The
benefits of the legislation are ease of administration. These effects
cannot be said to be proportionate.

11

VII. CONCLUSION
[42] Section 5 of the Truth in Sentencing Act violates s. 11(i) of the Charter
of Rights and Freedoms, and is therefore of no force or effect, to the
extent that it applies to offenders convicted of offences which predate
the coming into force of the Act.

Dated at the City of Iqaluit this 23rd day of October, 2015

___________________
Justice S. Cooper
Nunavut Court of Justice