R v Canto (ABCA): Leave to seek retroactive application of Summers decision on pre-trial custody credit denied

In 2009, s. 719(3) of the Criminal Code was amended to state that credit for time spent in pre-trial custody would be capped at a presumptive maximum of 1 day, per day of pre-trial custody. However, under s. 719(3.1), a sentencing court could grant 1.5 days for every day in custody “if the circumstances justify it”. What such circumstances would be was not discussed. Prior to April 2014, a number of courts in Canada had held that the circumstances must be “exceptional” and the loss of eligibility for parole and statutory release was not–in itself–an exceptional circumstance. That changed in April 2014 when the Supreme Court of Canada ruled in R v Summers, 2014 SCC 26 (CanLII) that the loss of eligibility for parole and statutory release was a circumstance that could merit the granting of enhanced credit. After the Summers decision, courts in Alberta began granting 1.5 to 1 credit in most sentencing decisions.

Mr. Canto was sentenced in 2012. He did not appeal his sentence at the time and his time to appeal that sentence expired. However, six months after the release of the Summers decision, he sought an extension of time to file an appeal of the sentence. As several applications had already been brought in Alberta, Canto’s application was referred to a panel of three justices, instead of the single justice who would ordinarily hear such an application: R v Canto, 2015 ABCA 306 (CanLII).

The Court noted that the criteria that have been used to assess such applications (which are brought under Section 678(2) of the Criminal Code), were determined in the long-standing case of Carins v Cairns, [1931] 4 DLR 819 (Alta SC (AD)). The considerations are:

  1. did a bona fide intention to appeal exist while the right to appeal existed;
  2. is there an explanation for the failure to appeal in time that justifies or excuses the late appeal;
  3. would it be unjust to disturb the judgment – in other words, is there an absence of serious prejudice if an appeal were to be granted;
  4. has the applicant taken the benefits of the judgment under appeal; and
  5. are there reasonably arguable grounds of appeal.

Canto hadn’t shown any intention to appeal while the right to appeal existed. If he had not had such an intention because the law was clearly against such an appeal, that factor would likely have been regarded as neutral by the Court. However, the Court argued that there was already, at the time Canto was sentenced, an ongoing debate in the case law as to whether exceptional circumstances were required for the granting of enhanced credit. The New Brunswick Court of Appeal had already determined that exceptional circumstances were not required and that sentencing courts could take into account the potential loss of the offender of earned or statutory remission and parole: R v Carvery, 2012 NSCA 107 (CanLII). Trial-level decisions on the issue had been made in other provinces as well, and appeal decisions were pending from two other provincial appeal courts.

Important to the Court’s decision to deny leave to appeal was the principle of finality. It is generally the case that once a judgment is entered and the appeal period is concluded, the decision of a court is final. The Court cited a trio of cases that dealt with whether convictions for murder based on prior constructive murder provisions in the Criminal Code (which had been found to be unconstitutional) could be appealed. In a series of decisions, the Supreme Court permitted only one of three people convicted of murder using the constructive murder provisions to raise that as a ground of appeal. In that one case, the accused had an active appeal before the Court on other issues. The fact that the accused was still “in the system” was sufficient to allow him to raise a new ground of appeal based on the evolution in the law. The other two people who sought leave to appeal their convictions based on the constructive murder provisions were denied leave, based on the principle of finality.

As to the merits of the proposed appeal, the Court noted that it wasn’t clear that Canto had a strong argument for enhanced credit, even after the decision in Summers. Canto had committed some of the offences he was sentenced for just six days after being released on bail. Enhanced credit can be denied where the pre-trial detention was the result of the bad conduct of the accused.

The Court summed up its balancing of all the factors involved in whether to grant leave in the following paragraph:

[44] The application of the considerations discussed above mandates the dismissal of this application. The competing interpretations of s. 719(3.1) of the Code were well known at the time of the appellant’s sentencing. He could have appealed in time, and his failure to even formulate an intention to appeal must be taken as an acknowledgment that his sentence was fit, just and lawful. There is no patent error of principle in the sentencing decision. The merits of the appeal are not strong. No overriding issue of injustice or harshness in the sentence is demonstrated. In this application, the principle of finality prevails over the other arguments.

Image Credit: Aimee. LicenceLink

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