NOVA SCOTIA COURT OF APPEAL Citation: R. v. Bowden, 2016 NSCA 17 Date: 20160310 Docket: CAC 435924 Registry: Halifax Between: Lewis Seward Bowden v. Her Majesty the Queen Appellant Respondent Judge: Appeal Heard: Subject: Summary: Issues: The Honourable Justice M. Jill Hamilton November 19, 2015, in Halifax, Nova Scotia Criminal Law; Assaults that occur outside the dates in the Information; Sentencing; 1.5:1 Remand Credit for time spent in pre-sentence custody The appellant appeals his convictions on a number of domestic assault charges which the judge found took place in the Spring of 2014, while the complainant and the appellant lived in the same house. He also appeals his sentence. (1) Are the convictions unreasonable or unsupported by the evidence? (2) Did the judge err in relying on the complainant s testimony that the appellant caused his then girlfriend to go to Bryony House? (3) Did the judge err by improperly relying on propensity evidence?
(4) Did the judge err by misunderstanding the evidence concerning the dates the complainant lived in the same house as the appellant? (5) Did the judge err in accepting the complainant s evidence that a metal kettle thrown at her smashed into many pieces on hitting a wall? (6) Did the judge err in imposing too high a sentence for the assault with the juice? (7) Did the judge err in principle by failing to give the appellant enhanced 1.5:1 credit, pursuant to s. 719(3) and (3.1) of the Criminal Code, for time spent in pre-sentence custody? Result: Convictions appeal dismissed. Sentence appeal allowed in part. The judge did not improperly rely on any evidence in reaching her decision. She did not err by convicting the appellant of assaults that took place outside the dates in the Information, because an assault is a crime regardless of when it occurs and the dates of the assaults were not crucial to the appellant s defence. The convictions are not unreasonable or unsupported by the evidence. The judge did not err in imposing a sentence of six months for the relatively low-level offence of assault with the juice, given the appellant s demeaning, controlling, abusive and repetitive behaviour towards the complainant, both physically and psychologically. She did, however, err in not granting the appellant 1.5:1 credit for the time he spent in pre-sentence custody. As set out in R. v. Summers, 2014 SCC 26, presentence custody alone will generally be a sufficient basis on which to award the enriched credit. This information sheet does not form part of the court s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 18 pages.
NOVA SCOTIA COURT OF APPEAL Citation: R. v. Bowden, 2016 NSCA 17 Date: 20160310 Docket: CAC 435924 Registry: Halifax Between: Lewis Seward Bowden v. Her Majesty the Queen Appellant Respondent Judges: MacDonald, C.J.N.S., Hamilton, and Farrar JJ.A. Appeal Heard: November 19, 2015, in Halifax, Nova Scotia Held: Counsel: Convictions appeal dismissed. Sentence appeal allowed in part, per reasons for judgment of Hamilton, J.A.; MacDonald, C.J.N.S. and Farrar, J.A. concurring Lee Seshagiri, for the appellant for the part of the sentence appeal relating to remand credit Lewis Seward Bowden, appellant in person for the convictions appeal and the appeal of the length of his sentence for the assault with the juice William Delaney, Q.C., for the respondent
Page 2 Reasons for judgment: [1] Mr. Bowden appeals his convictions on a number of domestic assault charges and charges involving breaches of a Recognizance and a Probation Order. He argues Chief Judge Pamela S. Williams, of the Nova Scotia Provincial Court, erred by accepting the evidence of the complainant and rejecting his denial of the assaults, resulting in convictions that are unreasonable or unsupported by the evidence. He further argues she erred by relying on the complainant's testimony that the appellant caused his then girlfriend to try to get admitted to Bryony House (a women's shelter) while the complainant was there; by relying on propensity evidence; by misunderstanding the evidence concerning the dates the complainant lived in the same house as the appellant and by accepting the complainant's evidence that a metal kettle thrown at her "smashed...into many, many pieces" on hitting a wall. [2] Mr. Bowden also appeals two aspects of his sentence. He appeals his six month sentence for assaulting the complainant by throwing juice in her face (count 3), saying it should be three months. He also argues the judge erred in principle by failing to give him enhanced 1.5:1 credit, pursuant to s. 719(3) and (3.1) of the Criminal Code, for time spent in pre-sentence custody. Background [3] The judge summarizes the facts at the beginning of her unreported sentencing decision: Lewis Bowden is being sentenced in relation to domestic assaults and breaches of court orders arising out of his relationship with [the complainant] during the spring of 2014. There were, in total, ten counts on an information alleging offences between the 30th of April, 2014 and the 14th of June, 2014, with additional... I guess counts eight, nine, and ten arising out of incidents from June the 20th, 2014. Despite the fact that the accused and the victim viewed the relationship in different terms, the parties were living together and engaging in intimate relations during this time. [The complainant] saw it as a "sex for drugs" relationship, while Mr. Bowden considered this more of an intimate partner relationship. Their differing perspectives on the relationship caused much tension, I daresay, which led often to verbal and physical altercations. Now between April 30th and June 20th of 2014, a span of approximately 75 days, there were three incidents
relating to assaults, an assault with a weapon, three counts of breach of release orders, and two counts of breach of probation. With respect to the assaults, there were as I indicated, various disputes which arose when the victim did not want to engage in sexual relations with the accused. Mr. Bowden kicked, shoved, and grabbed [the complainant] by the hair during one of these altercations. He also threw juice in her face and spit on her on another occasion. He had been charged with assault with a weapon related to the juice and the spit, but was found guilty of common assault. On the charge of assault with a weapon, Mr. Bowden threw a metal kettle at [the complainant] on an occasion with enough force that it hit the wall and broke. Fortunately, it did not strike [the complainant]. As to the breaches, Mr. Bowden was on a release order and a probation order during this time period. Among other conditions, he was to keep the peace and be of good behaviour and have no contact or communication with [the complainant]. He was in flagrant violation of the court order to remain away from [the complainant] and obviously did not keep the peace and be of good behaviour. Finally, on June 20th, 2014, [the complainant] had had enough and left. Mr. Bowden followed her, apologized, asking her to return. When [the complainant] refused, he started to call her names. [The complainant] made her way to Bryony House. A week later, Mr. Bowden was calling and texting her. She changed her phone number only to find out that Mr. Bowden then started contacting her son who relayed messages to her. It was then and only then that [the complainant] contacted the police. In her words, "If he would go to those lengths," in other words, to contact her son, "what else was he capable of doing?" So that's the backdrop to this sentencing hearing. Page 3 [4] The appellant was represented by counsel at trial and sentencing and for that part of this appeal dealing with credit for pre-sentence custody. [5] On reviewing the record, I am satisfied the convictions' appeal should be dismissed, and the sentence appeal allowed in part. Convictions' Appeal [6] In his factum, the appellant argues his convictions are unreasonable or unsupported by the evidence. At the hearing before us, with the help of counsel representing him on that part of his sentence appeal dealing with enhanced credit, the appellant adds to this ground of appeal. He argues the judge erred in four ways:
Page 4 (a) (b) (c) (d) First, she erred by relying on the complainant's testimony that the appellant caused his then girlfriend to try to get admitted to Bryony House without the girlfriend having been called as a witness for him to cross-examine. He further argues she erred in finding this occurred while the complainant was at Bryony House, as there was no explicit evidence of the date the girlfriend went to Bryony House; Second, she erred by improperly relying on propensity evidence; namely, the complainant's testimony that she had gone to Bryony House three times previously due to the appellant's behaviour; Third, she erred when she misunderstood the evidence concerning the dates the complainant and the appellant lived in the same house. He argues this may have led her to find him guilty of assault charges outside the dates of the counts in the Information. He also argues it led the judge to accept the complainant's evidence that her bruising was visible when she went to the police on June 21 or 22, 2014, three weeks after the complainant left the appellant. He says common sense dictates that bruises do not last three weeks; and Fourth, she erred by accepting the complainant's testimony that the metal kettle he threw at her "smashed into many, many pieces" on hitting the wall. Again, he says common sense tells you metal kettles do not break in this fashion. [7] He argues the cumulative effect of these errors requires that his convictions appeal be allowed. Complainant's testimony concerning his then girlfriend trying to get admitted to Bryony House [8] When explaining why she did not go to the police immediately following the assaults, the complainant testified that she did not want to get the appellant in trouble, but that once he texted her son and caused his then girlfriend to try to get admitted to Bryony House, she went to the police: So when Lewis [the appellant] said this to [my son], it really hurt him. So when this all occurred, I had I figured I had to go to the police because then he'd be stalking my son next or but that wasn't the last straw. The last straw is he got his girlfriend which was not (me?). He had a girlfriend in Woodside who would show up at the house and stuff. And he had her show up at Bryony to be admitted, and she didn't even have a boyfriend besides him, and
Page 5 they denied her. So that wasn't his last straw. I don't know what his next one would have been. So I had to go to the police. [9] This testimony was referred to in the judge's unreported reasons for convicting: there was uncontroverted evidence that he had a girlfriend of his go to Bryony House while she was there. [ ] And the final straw wasn't that (contacting her son). It was according to her when he got a girlfriend to go to Bryony House and she was scared, scared not knowing what his next move might be. [Emphasis added] [10] The appellant argues the judge improperly accepted the complainant s evidence that he caused his then girlfriend to go to Bryony House and improperly relied on it in convicting him, because the girlfriend was not called as a witness, denying him an opportunity to cross-examine her. He also says the judge erred by finding the girlfriend went to Bryony House while the complainant was there, because there was no explicit evidence of the date the girlfriend went there. [11] While her reasons may not be as clear as they could be, I am satisfied the judge was not finding facts in the two statements set out in paragraph 9 above, but was simply describing the complainant's evidence about why she finally decided to go to the police. As such, there is nothing to indicate the judge relied on this evidence in assessing credibility or convicting the appellant. [12] The appellant has not satisfied me the judge found as a fact that the appellant caused his girlfriend to go to Bryony House while the complainant was there or improperly relied on this evidence in reaching her decision. Propensity Evidence [13] The complainant testified she went to Bryony House three times previously because of the appellant's behaviour: Q. You indicated that you'd been to Bryony House on more than one occasion. A. That was my fourth time. Q. It was your fourth time?
Page 6 A. I had been there three times previous to the last time. That's why I was hesitant to go because they thought I was abusing the system basically. But I guess that's what they're there for, and thank God they are. Q. On those occasions that you went to Bryony House, what relationship were you in? With whom were you in a relationship to make you go to Bryony House? A. I was always hanging around with Lewis Bowden (the appellant). Q. Okay, so it was Lewis Bowden? A. It's the only time I had ever been to Bryony House was because of Lewis. [14] The judge refers to the complainant's testimony that she had been to Bryony House before in connection with the appellant in her reasons for convicting: Her evidence was uncontroverted to the extent that this was the fourth time that she'd be going to Bryony House because of Lewis Bowden. [15] The appellant argues this statement indicates the judge improperly accepted and relied on this evidence in assessing the evidence and finding him guilty - that she judged him on his past rather than on the charges before her. [16] The judge's statement set out above in paragraph 14 is contained in the same paragraph as the statement the appellant unsuccessfully relies on for his first argument concerning the appellant's then girlfriend going to Bryony House. Again, I am satisfied the judge was simply describing the complainant's evidence rather than finding facts in this sentence. Her statement correctly reflects the complainant's evidence. The appellant did not deny that the complainant had previously been to Bryony House or that her attendance was because of him. Nor did he deny having a girlfriend or sending her to Bryony House. Therefore, the judge's statement that the evidence is uncontroverted is accurate. [17] Prior to describing the complainant's evidence in her reasons, the judge explained why she was rejecting the appellant's denial of the assaults. Her explanation makes no mention of the complainant's testimony of her prior visits to Bryony House, or, for that matter, of his then girlfriend's visits to Bryony House: I will look first at Mr. Bowden's evidence. I would say that I do not accept his evidence, nor does it raise a reasonable doubt, and my reasons are as follows. One, despite his categorical denial of assaultive behaviour, there is little else in his testimony to support his assertion other than to say, if I was abusive why didn't she leave me sooner or why didn't she call the police sooner. There really is
no air of reality to the assertion that [the complainant] called the police in revenge solely to get back at Mr. Bowden for having contacted [the complainant's] son by text messaging. [The son] is a 23 year old adult male now. He's aware of his mother's drug issues and past circumstances. And it does not seem plausible to me that she would simply call the police alleging various assaults over a period of time in the spring of 2014 merely to get back at Mr. Bowden. And finally, Mr. Bowden in his testimony was not terribly forthcoming himself, not terribly forthcoming with respect to his record. He was questioned and waffled back and forth as to whether he really was putting forth a suggestion that this was a revenge tactic on the part of [the complainant]. At one point he said yes; at another point he said no. And it was concerning to the Court that he made the admission that he was not honest with his sponsor at the Rock Church - in other words, that he was keeping his drug usage from him. That combined with the fact that it appears Mr. Bowden has little regard for respecting a Court Order to remain away from [the complainant] causes me to reject his evidence. Page 7 [18] The appellant has not satisfied me the judge erred by accepting or relying on this evidence in assessing credibility or convicting the appellant. The few lines which refer to the propensity evidence in the judge's reasons cannot fairly be said to demonstrate that she convicted the appellant of the assaults because of that evidence, or that she judged him on his past. Misunderstanding the Evidence [19] The Information sets out that the assaults occurred between April 30 and June 14, 2014. [20] The complainant did not specify the exact dates on which the assaults specified in the Information took place, testifying they were part of an ongoing cycle of abuse while she lived with the appellant. She was uncertain about the dates she lived with the appellant, but at one point testified she began living with him in the middle of April, two weeks prior to the first date set out in the Information. She also testified she left the house three weeks before she reported the assault to the police, which would have been at the beginning of June, two weeks prior to the second date set out in the Information. [21] In her reasons for convicting, the judge misstates the complainant's testimony with respect to the time she lived with the appellant:
Page 8 She described her living arrangement at 51 High Street, a five and a half week period between mid-april to June 21, 2014 [22] In her sentencing decision, she makes another misstatement concerning the dates: Now between April 30th and June 20th of 2014, a span of approximately 75 days, there were three incidents relating to assaults, an assault with a weapon, three counts of breach of release orders, and two counts of breach of probation. [ ] Finally, on June 20th, 2014, [the complainant] had had enough and left. [23] The appellant's first argument concerning this evidence is that his conviction should be overturned because the judge may have convicted him of assaults that occurred outside the dates set out in the Information, i.e. assaults that occurred between mid-april and the end of April. [24] There is no merit to this argument. The Crown does not need to prove that the assaults occurred on the dates alleged in the Information, or on any particular date, because an assault is a crime regardless of when it occurs and the dates of the assaults were not crucial to the appellant's defence - that they did not happen; R. v. B.(G.), [1990] 2 SCR 30; R. v. D.(S.), 2011 SCC 14; R. v. Jacques, 2013 SKCA 99; R. v. Dossi (1918), 13 Cr. App. R. 158. [25] After reviewing the law at length, the Supreme Court of Canada states in B.(G.): [38] it is clear that it is of no consequence if the date specified in the information differs from that arising from the evidence unless the time of the offence is critical and the accused may be misled by the variance and therefore prejudiced in his or her defence. It is also clear from Dossi and other authorities that the date of the offence need not be proven in order for a conviction to result unless time is an essential element of the offence. Accordingly, while it is trite to say that the Crown must prove every element of the offence in order to obtain a conviction, it is, I believe, more accurate to say that the Crown must prove all the essential elements. The Crown need not prove elements which are, at most, incidental to the offence. What the Crown must prove will, however, of necessity vary with the nature of the offence charged and the surrounding circumstances
[26] The Supreme Court of Canada articulated four principles to be applied to determine whether the exact time or date of the alleged offence, based on the evidence, must be included in the Information in order for the accused to be convicted of that charge: [43] In my view, the following conclusions can be drawn from the authorities: 1. While time must be specified in an information in order to provide an accused with reasonable information about the charges brought against him and ensure the possibility of a full defence and a fair trial, exact time need not be specified. The individual circumstances of the particular case may, however, be such that greater precision as to time is required, for instance, if there is a paucity of other factual information available with which to identify the transaction. 2. If the time specified in the information is inconsistent with the evidence and time is not an essential element of the offence or crucial to the defence, the variance is not material and the information need not be quashed. 3. If there is conflicting evidence regarding the time of the offence, or the date of the offence cannot be established with precision, the information need not be quashed and a conviction may result, provided that time is not an essential element of the offence or crucial to the defence. 4. If the time of the offence cannot be determined and time is an essential element of the offence or crucial to the defence, a conviction cannot be sustained. [44] Accordingly, when a court is faced with circumstances in which the time of the offence cannot be determined with precision or the information conflicts with the evidence, the first question that must be asked is whether time is either an essential element of the offence or crucial to the defence. It will only be in cases where this first question is answered affirmatively that the trier of fact must then determine whether the time of the offence has been proven beyond a reasonable doubt. If the answer to the first question is in the negative, a conviction may result even although the time of the offence is not proven, provided that the rest of the Crown's case is proven beyond a reasonable doubt. [45] In the present case, however, the trial judge failed to address the first question. He found on the evidence before him that the date of the offence had not been established beyond a reasonable doubt and acquitted the accused. In doing so he erred. (I add in fairness to the learned trial judge that he was understandably misled by the sparse report of Hamilton-Middleton upon which he relied in reaching his decision.) Had the trial judge directed himself to the first question, he would have been forced to conclude that time was not an essential element of the offence or crucial to the defence. Indeed, the date of the offence is Page 9
not generally an essential element of the offence of sexual assault. It is a crime no matter when it is committed. From the record in this case it is also clear that the date of the offence was not crucial to the defence. The appellants' claim on appeal that the date was crucial because alibi evidence was led cannot, in my view, be seriously maintained. At trial each appellant testified and put forward only general denials. They did not lead alibi evidence at that time. Moreover, since the alleged assault took place in the school washroom during recess, the only possible alibi would seem to be that one or more of the appellants was not in attendance at school during the relevant period specified in the information or suggested by the evidence. There is nothing in the record to support this. [46] I conclude therefore that the Court of Appeal was correct in holding that the time of the offence was not an essential element in the circumstances of this case and need not be proven beyond a reasonable doubt. I also agree with the Court of Appeal that if the assault took place as alleged the evidence supports the conclusion that it occurred some time between November 1, 1985 and December 20, 1985 and that amending the information to this effect would not cause irreparable harm to the appellants. Since the trial judge made no findings of fact apart from the time element the Court of Appeal was correct in concluding that a new trial was necessary. Page 10 [Emphasis added] [27] In the present case, the appellant was provided with reasonable information about the charges brought against him [to] ensure the possibility of a full defence and a fair trial, as referred to in paragraph 43 of B.(G.); he knew the alleged crimes, the alleged victim, the alleged place, and the alleged time frame. The evidence provided by the complainant indicated the assaults occurred while she resided with the appellant. The dates she gave for this time period differed slightly from the time range provided for in the Information. Any discrepancy in the dates would not have been significant, in that the evidence only covered a few additional weeks. This did not deprive the appellant of the capacity to defend himself. [28] The appellant did not proffer an alibi defense at his trial, but instead categorically denied the charges against him. He did not allege that he did not assault the complainant within the time frame in the Information; he alleged that he did not assault her at all. Any evidence he proffered was for the purpose of demonstrating that the assault never happened, mostly by attempting to undermine the complainant's credibility. [29] The issue in this case was credibility. Despite any discrepancy between the complainant's evidence and the Information date, the judge found her to be a credible witness and accepted her evidence in its entirety. In contrast, she rejected
Page 11 the accused's evidence in its entirety. The judge found that the assaults had taken place beyond a reasonable doubt; as such, she could, in law, convict the appellant on those charges even if the assaults might have potentially occurred outside of the Information dates. Accordingly, the judge made no error on this issue that should be overturned on appeal. [30] The appellant's second argument relating to the judge's misunderstanding of the evidence concerning the date the complainant left the appellant, is that the judge's belief that the complainant left on June 20, rather than at the beginning of June, caused her to err in accepting the complainant's evidence that her bruising was visible when she went to the police three weeks after she left. He says common sense dictates bruises do not last three weeks. [31] Even if the judge misunderstood the date the complainant left, I would not be satisfied she erred in accepting the complainant's evidence that her bruising was visible three weeks after she left. How long bruising lasts is not so notorious as to merit taking judicial notice of it. Kettle [32] The appellant also argues that the judge erred in accepting the complainant's evidence that the metal kettle he threw at her "smashed into many, many pieces". He says this evidence is not in line with common sense; that metal kettles don't smash into pieces as described. [33] The judge dealt directly with this argument in her reasons for conviction: I accept that he threw the metal kettle that shattered or broke. In my view, little rises or falls on the word used, "shattered." It may well be that the kettle itself just came apart as a result of being thrown and hitting the wall. If she really wanted to embellish this portion of her evidence, she could have said that it hit her or that it damaged the wall. [34] I am not satisfied the judge erred in accepting this evidence for the reasons she states. The point wasn't what happened to the kettle, but that the appellant threw it at her.
Page 12 Unreasonable Convictions [35] The appellant's last argument is that his convictions were unreasonable or unsupported by the evidence. In R. v. Bou-Daher, 2015 NSCA 97, Fichaud, JA, recently referred to the principles this Court is to apply when reviewing a conviction to determine if it is unreasonable or unsupported by the evidence: [30] In R. v. R.P., 2012 SCC 22, Justice Deschamps for the majority discussed unreasonableness and the appeal court's review of the evidence: [9] To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, at para. 36, determine whether the verdict is one that a properly instructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC 40, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC 5). [10] Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of appeal that reviews a trial court's assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they "cannot be supported on any reasonable view of the evidence" (R. v. Burke, [1996] 1 S.C.R. 474, at para. 7). [36] In order to reach her verdicts, the judge had to make findings of credibility regarding the evidence of the appellant and the complainant because the appellant denied the assaultive behaviour described by the complainant. The judge did so, finding that she did not believe the appellant's evidence and that it did not raise a reasonable doubt. [37] The judge then considered whether all of the other evidence proved the essential elements of the offences beyond a reasonable doubt, and found they did as the complainant's evidence was credible: In my view, her evidence was brutally honest. She made admissions against her own interests. She described in detail a continuing abusive relationship which was both internally and externally consistent given the need to feed her drug addiction.
Page 13 [38] Whether a witness is credible is a question of fact. We are not to interfere with the judge's assessments of credibility unless they "cannot be supported on any reasonable view of the evidence". That is not the case here. The complainant testified to the assaultive behaviour supporting the convictions. Her past history does not prevent the judge from accepting her evidence, any more than the appellant's past history of drug abuse and criminal convictions would have precluded the judge from accepting his evidence. A reasonable view of the evidence supports the judge's acceptance of the complainant's explanation of why she waited three weeks to go to the police. [39] The judge's evaluation of the credibility of the witnesses was without error and led to findings which provided a reasonable basis for the verdicts. Sentence Appeal [40] This Court will not intervene with a sentence, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, unless it is demonstrably unfit; R. v. C.A.M., [1996] 1 SCR 500: [90] Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code. As s. 717(1) reads: 717.(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts the person who commits the offence. [Emphasis in original.] [91] This deferential standard of review has profound functional justifications. As Iacobucci J. explained in Shropshire, at para. 46, where the sentencing judge has had the benefit of presiding over the trial of the offender, he or she will have had the comparative advantage of having seen and heard the witnesses to the crime. The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly.
Page 14 [41] The total sentence imposed on the appellant for the convictions, before taking into account credit for his pre-sentence custody, was 30 months. In her sentencing decision, the judge summarized her findings, reviewed the purposes and principles of sentencing, noted the importance of denunciation and deterrence in sentencing for violent crimes, considered the circumstances of the offender, the circumstances of the crime, the mitigating and aggravating factors, and the principles of proportionality and totality and concluded: For each of the counts of common assault, six months on each consecutive, for a total of 18 months. On the charge of assault with a weapon, six months consecutive to the sentence previously imposed. We're up to 24 months. On the breach of the release order and breach of probation which occurred within the first timeframe, between April and June 14th, three months on each, concurrent to each other but consecutive to the previously imposed sentence, which brings us to 27 months. And, finally, the two breach of release order charges and the breach of probation arising out of June 20th, three months on each, concurrent to each other but consecutive to the above, for a total sentence of 30 months. [42] The appellant argues the judge erred in sentencing him to six months for assaulting the complainant by throwing juice in her face, because it was less serious than the other assaults that he was sentenced to six months for, and therefore should have attracted a lower sentence. He says proportionality requires that the sentence for the assault with the juice should be reduced to three months. [43] Here the judge accurately states:...these are relatively low-level offences committed over a matter of weeks. But, and I stress "but", the behaviour was demeaning, controlling, abusive and repetitive both physically and psychologically." [44] In the whole of the circumstances, the assault with the juice was not insignificant as the appellant suggests. The appellant has not satisfied me the judge made any reviewable error in imposing a sentence of six months with respect to this offence. [45] After setting the total sentence before remand credit at 30 months, the judge then considered what the remand credit should be. She referred to the relevant sections of the Criminal Code: 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). Reasons (3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record. [46] She then reasoned: We know in the case of R. v. Carvery, [2012 NSCA 107; approved by the SCC 2014 SCC 27] a decision of our Nova Scotia Court of Appeal, there do not have to be exceptional circumstances but there must be circumstances to justify enhanced credit, such as a loss of parole or remission credit, a lack of programming, or onerous conditions. The Manitoba Court of Appeal in Stonefish [R. v. Stonefish, 2012 MBCA 116] indicated that circumstances justifying enhanced credit do not need to be exceptional but they do need to be individual to the accused. I have no submissions in this regard other than the Defence saying that I should give enhanced credit for the loss of parole. Unlike situations where the Court may be able to infer loss of parole or remission in such cases where it's a first offender or an isolated incident or good conduct on remand, I have nothing on which to base this decision. I do know that Mr. Bowden has a lengthy record that includes at least one parole violation for which he was recommitted to custody. I am not able to provide cogent reasons for granting enhanced credit. Therefore, the credit will be one-to- one. So going back to the sentence imposed, which was 30 months, I grant eight months and one week remand credit. The sentence to be served will be 21 months and 21 days on a go forward basis. [Emphasis added] Page 15 [47] The judge mentioned the Carvery and Stonefish cases, but not the case of R. v. Summers, 2014 SCC 26. [48] In Carvery, this Court upheld a sentencing judge's decision which found a loss of eligibility for parole or early release, which resulted because pre-sentence detention did not count towards parole or early release eligibility, was a circumstance justifying the enhanced credit. Beveridge, J.A. wrote:
[66]... 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. Page 16 [49] In Summers, the Supreme Court of Canada confirmed that loss of eligibility for parole or early release, because pre-sentence custody does not count towards parole or early release eligibility, constitutes a "circumstance" justifying the enhanced credit. It reached this conclusion after noting that the quantitative rationale for the practice of granting enhanced credit to an offender who was in pre-sentence custody, was to ensure that such an offender did not spend more time behind bars than if he had been released on bail. A remand credit of one-and-one half to one ensured that an offender released after serving two-thirds of his sentence served the same amount of time in jail, whether or not he was subject to pre-sentence detention. The Court also noted the second rationale for ordering an enhanced credit was qualitative in nature, time in pre-sentence custody was often more onerous than post-sentence incarceration. The Court held that neither the language of s. 719 nor the external evidence demonstrated a clear intention to abolish the principled rationales for the enhanced credit. It went on to state the fact of pre-sentence custody itself would usually be sufficient to justify the enhanced credit, without the need for extensive evidence: [70] In determining credit for pre-sentence custody, judges may credit at most 1.5 days for every day served where circumstances warrant. While there is now a statutory maximum, the analytical approach endorsed in Wust otherwise remains unchanged. Judges should continue to assign credit on the basis of the quantitative rationale, to account for lost eligibility for early release and parole during pre-sentence custody, and the qualitative rationale, to account for the relative harshness of the conditions in detention centres. [71] The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely. Of course, a lower rate may be appropriate when detention was a result of the offender's bad conduct, or the offender is likely to obtain neither early release nor parole. [ ] [79] The process need not be elaborate. The onus is on the offender to demonstrate that he should be awarded enhanced credit as a result of his presentence detention. Generally speaking, the fact that pre-sentence detention has occurred will usually be sufficient to give rise to an inference that the offender has lost eligibility for parole or early release, justifying enhanced credit. Of course, the Crown may respond by challenging such an inference. There will be particularly dangerous offenders who have committed certain
serious offences for whom early release and parole are simply not available. Similarly, if the accused's conduct in jail suggests that he is unlikely to be granted early release or parole, the judge may be justified in withholding enhanced credit. Extensive evidence will rarely be necessary. A practical approach is required that does not complicate or prolong the sentencing process. [80] As well, when evaluating the qualitative rationale for granting enhanced credit, the onus is on the offender, but it will generally not be necessary to lead extensive evidence. Judges have dealt with claims for enhanced credit for many years. The conditions and overcrowding in remand centres are generally well known and often subject to agreement between the parties; there is no reason this helpful practice should not continue. There is no need for a new and elaborate process - the TISA introduced a cap on the amount of enhanced credit that may be awarded, but did not alter the process for determining the amount of credit to apply. [Emphasis added] Page 17 [50] As appellant's counsel argues on this issue, and the Crown agrees, the judge's reasoning set out in paragraph 46 above, suggests the judge erred by failing to apply the principles set out in Summers, that the fact of pre-sentence custody alone, will generally be a sufficient basis on which to award the enriched credit. Rather than apply the inference approved of in Summers, it appears the judge thought an inference of lost eligibility for parole or early release should be limited to cases such as that of a first-time offender, an offence that is an isolated incident, or a case in which there is evidence of good conduct on remand. These limitations appear to run counter to the law as set out in Summers. [51] Accordingly, I am satisfied the judge erred by failing to award enhanced credit at the rate of 1.5:1, on the basis of the appellant's pre-sentence custody alone. I would reduce the appellant's sentence by four months and four days, from 21 months and 21 days to 17 months and 17 days.
Page 18 Disposition [52] In summary, I would dismiss the convictions' appeal and allow the sentence appeal in part, by reducing the appellant's sentence, after remand credit, to 17 months and 17 days. Concurred in: Hamilton, J.A. MacDonald, C.J. N.S. Farrar, J.A.