R. v. Arrance, [2000] 1 S.C.R. 488
Christopher Ronald Arrance Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General for Ontario Intervener
Indexed as: R. v. Arrance
Neutral citation: 2000 SCC 20.
File No.: 26802.
1999: November 9; 2000: April 13.
Present: Gonthier, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour JJ.
on appeal from the court of appeal for british columbia
Criminal law -- Sentencing -- Mandatory minimum sentences -- Robbery -- Criminal Code providing for mandatory minimum sentence of four years where firearm used in commission of robbery -- Whether sentencing judge may reduce minimum sentence to take into account pre-sentencing custody -- Criminal Code, R.S.C., 1985, c. C-46, ss. 344(a), 719(3).
The accused pleaded guilty to one count of robbery while using a firearm. At the time of his sentencing, he had been in custody since his arrest almost three months earlier. Pursuant to s. 719(3) of the Criminal Code, the sentencing judge gave the accused credit for time served and sentenced him to three and one-half years’ imprisonment. On appeal, the Court of Appeal imposed the minimum sentence of four years’ imprisonment required by s. 344(a) of the Code.
Held: The appeal should be allowed.
For the reasons given in R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18, a sentencing judge may give credit for time served in pre‑sentencing custody, even if that credit results in a sentence below the mandatory minimum, since mandatory minimum sentences must be interpreted and administered in a manner consistent with the criminal justice system's overall sentencing regime.
Cases Cited
Followed: R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18; referred to: R. v. Arthurs, [2000] 1 S.C.R. 481, 2000 SCC 19; R. v. Wust (1997), 43 C.R.R. (2d) 320.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 12.
Criminal Code, R.S.C., 1985, c. C-46, ss. 344 [repl. 1995, c. 39, s. 149], 719(1) [en. 1995, c. 22, s. 6], (3) [idem], 721(3) [rep. idem].
APPEAL from a judgment of the British Columbia Court of Appeal (1998), 107 B.C.A.C. 130, 174 W.A.C. 130, 125 C.C.C. (3d) 43, 17 C.R. (5th) 45, 53 C.R.R. (2d) 306, [1998] B.C.J. No. 1076 (QL), dismissing the accused’s appeal against sentence. Appeal allowed.
James Bahen, for the appellant.
Peter W. Ewert, Q.C., and Geoffrey R. Gaul, for the respondent.
David Finley, for the intervener.
The judgment of the Court was delivered by
Arbour J. --
I. Introduction
1 This appeal was heard at the same time as two other cases, R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18, and R. v. Arthurs, [2000] 1 S.C.R. 481, 2000 SCC 19, which are released concurrently with this decision. The issue is whether, when Parliament has imposed a mandatory minimum sentence, the court may deduct from that sentence the time spent by the offender in custody while awaiting trial and sentence, if this has the effect of reducing the sentence pronounced by the court to less than the minimum provided by law. For the reasons I set out in Wust, s. 719(3) of the Criminal Code, R.S.C., 1985, c. C-46, which provides judges with the discretion to count pre-sentencing custody in fixing the length of the sentence, may be applied to the mandatory minimum sentence of four years’ imprisonment for robbery while using a firearm under s. 344(a) of the Code. I determined in Wust that a sentencing judge may give credit for time served in pre-sentencing custody, even if that credit results in a sentence below the mandatory minimum, since this reflects the intention of Parliament that all sentences be administered consistently within the context of the criminal justice system’s sentencing regime.
II. Factual Background and Judicial History
A. Factual Background
2 A brief review of the facts is necessary to dispose of this appeal. On January 15, 1997, the appellant robbed a gas station in Vancouver, British Columbia. He pointed a loaded shotgun at the attendant, holding the barrel about five inches from the attendant’s chest and demanded money and cigarettes. He obtained both before driving away in a van, with which an accomplice had been waiting. A few moments later, the van was stopped by the police and the appellant was apprehended after a short chase on foot.
3 The appellant pleaded guilty to one count of robbery while using a firearm. He was a 21-year-old drug addict with a record of 19 convictions since April 1990. He was remanded in custody for almost three months, pending sentencing.
B. British Columbia Provincial Court
4 Relying on the decision of Grist J. in R. v. Wust (1997), 43 C.R.R. (2d) 320 (B.C.S.C.), Bendrodt Prov. Ct. J. found that s. 721(3) of the Criminal Code (now s. 719(3)) could be applied to a mandatory minimum sentence in the circumstances of this case. The appellant was credited with six months for the three months spent in pre-sentencing custody, resulting in the imposition of a sentence of three years and six months’ imprisonment.
C. British Columbia Court of Appeal (1998), 125 C.C.C. (3d) 43
5 The appellant appealed his sentence, challenging the constitutionality of the mandatory minimum punishment of s. 344(a) as a violation of his s. 12 Charter right to be free of cruel and unusual punishment and should the provision be upheld, seeking to defend the credit given for time served. The appeal was heard and decided at the same time as four other sentencing appeals, all under s. 344(a). As previously noted, two of those appeals were also heard in this Court together with the present case: Wust, supra, and Arthurs, supra.
6 McEachern C.J.B.C., writing for a unanimous court, upheld the constitutionality of s. 344(a) under s. 12 of the Canadian Charter of Rights and Freedoms, and also held that the correct interpretation of s. 344(a) mandated the imposition of a sentence of at least four years. Because s. 719(1) provides that a sentence begins when it is imposed, McEachern C.J.B.C. held that it was not possible to reduce a sentence to account for time served while awaiting sentence, if such a discount results in a sentence of less than the required minimum. Thus, in the appellant’s case, the court dismissed his appeal and allowed the Crown’s appeal, increasing the appellant’s sentence to the four-year minimum.
III. Relevant Statutory Provisions
7 Criminal Code, R.S.C., 1985, c. C-46
344. Every person who commits robbery is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
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.
IV. Conclusion and Disposition
8 The only issue before this Court is whether the Court of Appeal erred in reversing the trial judge’s decision to apply s. 719(3) to give credit for the time the appellant had already served in custody awaiting sentencing. For the reasons given in Wust, supra, I find that the Court of Appeal did err in so doing.
9 This case, like Arthurs, supra, illustrates again the unfairness that results from an interpretation of the Criminal Code that precludes granting credit for time served prior to sentence. The appellant was detained following his guilty plea, but while awaiting sentence. It would be unfair if this period of time, which after a guilty plea is undoubtedly part of the punishment, were to be added to the minimum required by law, rather than computed as part of it. For these reasons and the reasons given in Wust, supra, I would allow the appeal, set aside the judgment of the Court of Appeal and reinstate the sentence imposed on the appellant by Bendrodt Prov. Ct. J.
Appeal allowed.
Solicitors for the appellant: Leask Bahen, Vancouver.
Solicitor for the respondent: The Ministry of the Attorney General, Victoria.
Solicitor for the intervener: The Ministry of the Attorney General, Toronto.