Leyte v. Canada (Attorney General)

Date: 20100209 Docket: 09/47 Citation: 2010 NLCA 8 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: BRUCE IVES LEYTE APPELLANT AND: HER MAJESTY THE QUEEN AS REPRESENTED BY THE ATTORNEY GENERAL RESPONDENT Coram: Welsh, Mercer and White, JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Corner Brook Appeal Heard: December 8, 2009 Judgment Rendered: February 9, 2010 Reasons for Judgment by Mercer, J.A. Concurred in by Welsh, J.A. Dissenting in Part by White, J.A. Counsel for the Appellant: Derek Hogan Counsel for the Respondent: Stephen Dawson Page: 2 Mercer, J.A.: [1] This is an appeal from the sentence imposed following a guilty plea to 13 criminal offences. The offences involved fraud, faked suicide and false identity. The sole issue on appeal was whether the trial judge erred in declining to credit the offender with more than time served in respect of his pre-sentence custody. The required leave to appeal was not disputed and is granted. FACTS [2] On April 16, 2009 Leyte appeared before a Provincial Court judge and pleaded guilty to 13 criminal offences involving public mischief, fraud, using a false document to commit theft and causing a government employee to act on a false document, all summarized as follows: BANK FRAUD (1 count of fraud) Leyte participated in a cheque cashing scheme between July 2005 and April 2006 that ultimately resulted on July 14, 2006 in a loss to the Bank of Nova Scotia of $47,577.01. The loss had not been repaid. FAKED SUICIDE (1 count of public mischief) On August 18, 2006 Leyte faked his suicide. He left his car near the Humber River with a suicide note and disappeared. There was an extensive search launched for his remains which included the use of a dive team in dangerous river conditions. The police informed his family that he had likely committed suicide. On November 23, 2008 Leyte was discovered to be living in St. John’s as J. James Richards. FALSE IDENTITY (3 counts of fraud, 4 counts of false pretences and 4 counts of uttering forged documents) Following his “suicide” Leyte established a false identity as J. James Richards committing offences respecting false identity documents between February and June 2008. He obtained a forged baptismal certificate and successively obtained a birth certificate, provincial photo identification and driver’s licence and medical care plan certificate, among other things, all in the name of J. James Richards. He used that identity until his arrest on November 23, 2008. [3] Leyte had a criminal record. In 1988 he was convicted of theft receiving a sentence of 2 days imprisonment, followed by two years probation. In February, 2004 he was convicted of 6 counts of making a false document contrary to section 366(2)(b) of the Criminal Code and 1 count of possession of a stolen credit card. He received a conditional sentence of 115 days followed by 18 months probation. As noted by the Crown, Leyte was therefore on probation for issues of dishonesty when he was involved in Page: 3 the scheme to defraud the Bank of Nova Scotia. On May 30, 2006 Leyte was convicted of 3 counts of unlawfully obtaining a tax rebate or refund and two counts of willfully evading payment or remittance of tax. The various counts covered periods from September 30, 2001 to February 2, 2004. These convictions and the resultant fines were entered approximately six weeks before the perpetration of the fraud upon the Bank of Nova Scotia on July 14, 2006. [4] On April 24, 2009 Leyte, who was then 57 years old, was sentenced in this matter receiving a sentence of incarceration of 23 months which reflected a 5 month credit for time served since his arrest on November 23, 2008. The trial judge explicitly declined to give Leyte double credit in respect of his pre-trial custody. The sentence of 23 months was comprised of 5 months for the count respecting bank fraud, 12 months for the count of public mischief (faked suicide), 4 months for the counts concerning obtaining the birth certificate using the false identity and 3 months, 2 months and 2 months respectively for the counts concerning obtaining the provincial photo identification card, driver’s licence and MCP card, the total of the foregoing being reduced by 5 months as a credit for his pre-sentence custody. ISSUE [5] Counsel for Leyte argued one issue on the appeal, namely whether the trial judge erred in refusing to give two for one credit for the five month remand in custody. ANALYSIS [6] The Criminal Code gives a sentencing court discretion to consider pre-sentence custody. The relevant provision states: 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. [7] It has long been the practice across Canada generally to give a credit of double time for pre-sentence custody, as noted in R. v. Cooper (1987), 117 C.C.C. (3d) 249 (N.L.C.A.) at p. 273: … We are not prepared to depart from the notion, espoused by this Court in [R. v. A. (K.J.)] (1988), 69 Nfld. & P.E.I.R. 99 (C.A.), that credit against sentence for Page: 4 remand time should generally be more than what was actually spent on remand. Whilst the giving of credit is a matter of discretion for the sentencing judge taking into account the specific circumstances of the case, and no rigid rule can be said to be applicable to determine the amount of the extra credit, a doubling of time spent is frequently used. See R. v. Pike (1992), 102 Nfld. & P.E.I.R. 111 (Nfld. T.D.); R. v. Cope (1987), 59 Sask. R. 161 (C.A.). In applying that approach in this case, the sentencing judge did not make any error in principle. [8] In R. v. Wust, [2000] 1 S.C.R. 455, this practice and its underlying rationale were affirmed with the admonition that double credit was not to be mechanically granted: [44] I see no advantage in detracting from the well-entrenched judicial discretion provided in s. 719(3) by endorsing a mechanical formula for crediting pre- sentencing custody. As we have re-affirmed in this decision, the 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. I adopt the reasoning of Laskin J.A., supra, in Rezaie, supra, at p. 105, where he noted that: . . . provincial appellate courts have rejected a mathematical formula for crediting pre-trial custody, instead insisting that the amount of time to be credited should be determined on a case by case basis. . . . Although a fixed multiplier may be unwise, absent justification, sentencing judges should give some credit for time spent in custody before trial (and before sentencing). [Citations omitted.] [45] In the past, many judges have given more or less two months credit for each month spent in pre-sentencing detention. This is entirely appropriate even though a different ratio could also be applied, for example if the accused has been detained prior to trial in an institution where he or she has had full access to educational, vocational and rehabilitation programs. The often applied ratio of 2:1 reflects not only the harshness of the detention due to the absence of programs, which may be more severe in some cases than in others, but reflects also the fact that none of the remission mechanisms contained in the Corrections and Conditional Release Act apply to that period of detention. “Dead time” is “real” time. The credit cannot and need not be determined by a rigid formula and is thus best left to the sentencing judge, who remains in the best position to carefully weigh all the factors which go toward the determination of the appropriate sentence, including the decision to credit the offender for any time spent in pre-sentencing custody. [9] The extent of credit for pre-sentence custody is accordingly not governed by a rigid formula but is a discretionary matter for the trial judge. Page: 5 Obviously, discretion must be exercised on a principled basis. R. v. Provost 2006 NLCA 30, 208 C.C.C. (3d) 393. [10] In a series of cases the British Columbia Court of Appeal has discussed the issue of credit for pre-sentence custody. See for example R. v. Calder Berg, 2007 BCCA 343, 221 C.C.C. (3d) 449; R. v. Orr, 2008 BCCA 76, 228 C.C.C. (3d) 432; R. v. Rufus, 2009 BCCA 419. These authorities stand for the proposition that double credit will usually be the appropriate course and a lesser credit may be warranted “where the offender has been held for the pre-sentence period in an institution where post- sentence type programs are available.” Orr, para. 20. Other authorities acknowledge additional circumstances which could properly persuade a trial judge not to grant double credit. These include: the offender’s incarceration history suggests that early release would be unlikely - R. v. Sabourin, 2009 NWTCA 6, at para. 13; the offender was in custody because he breached the terms of his release - R. v. Vermette, 2001 MBCA 64, 154 C.C.C. (3d) 193 at para. 66; or the offender is unlikely to benefit from parole or rehabilitation programs - R. v. Tschritter, 2006 BCCA 202 at para. 15 but see Orr, supra, at para. 15. [11] This Court accepted that where an offender was in custody following a breach of the terms of his release it was appropriate to deny double credit. R. v. Provost, supra. In another recent case the fact an offender was responsible for the considerable prolonging of his pre-sentence custody led to a denial of double credit. R. v. Jesso - 2008 NLTD 36, 274 Nfld. & P.E.I.R. 304. The possible circumstances which could affect the length of credit for pre-sentence custody are not limited to those noted above, and the issue must be assessed by the trial judge according to the facts of the particular case. [12] I now turn to the subject appeal. Counsel for Leyte contended that the only reason for the denial of double credit was that stated in the passage of the oral sentencing decision that concluded: ... Quite frankly as the Court sees it, your time spent in custody, the length of it was determined solely by your own actions so you will get credit for the five months that you’ve been in custody but it will not be doubled. Counsel submitted that this was not a logical or principled basis to deny application of the normal practice of double credit inasmuch as “a remand is always determined by the offender’s actions”. Page: 6 [13] The passage quoted above must be considered in the context of the complete sentencing decision in order to determine its meaning and whether the trial judge elsewhere indicated other factors that affected the exercise of her discretion in respect of credit for pre-sentence custody. In the transcript of the oral sentencing decision [Transcript pp. 57-69] the above quoted passage appeared at page 63. In the preceding pages, the trial judge reviewed the counts to which Leyte had pleaded guilty, the underlying facts of those counts and Leyte’s criminal and incarceration history. The trial judge noted that: … When you in fact [were] located and arrested on November 23rd of 2008, you proceeded to tell the Police that [you] were in fact one J. James Richards and while being interviewed by the Police on November 24th, 2008, you admitted faking your own death back in August of 2006, however you then made a claim that faking your death was a necessity because you were a Police Informant and you were scared at the time. Once again, a Police Officer embarked upon an investigation and ascertained that the name of the Police Officer which you supplied and the fact that you said this person had supplied you with false documentation so that you could acquire a new identity didn’t even exist. [Transcript pp. 55-56] Firstly, I’m going to make a comment on how the court sees you in terms of being an offender. Firstly, Mr. Leyte, you are neither young nor a first offender. You’re fifty-seven years of age, I believe and you are a chronic con artist. … You have been sentenced to jail, you’ve had conditional sentences where you served sentences at home, you’ve had probation orders and you’ve had monetary penalties imposed in your dealings with the Court in the past and thus far, none of those particular dispositions has had the desired [effect] of deterring you from committing criminal offences. [Transcript p. 61] … Yet another point that the court finds relevant here is the fact that you did not willingly come forward after being overwhelmed with remorse or moral compunction to reveal yourself to the authorities and put this behind you. One can only wonder how long you would have continued to live the charade of James Richards had someone not recognized you and made that fact known to the authorities and I mention that because when submissions were made by your counsel, there was a request that you be given credit for time served and there was a suggestion that the Court could even grant two days for each day served in pre- trial custody and I will say at the outset that I’m not prepared to grant anything more than the time that’s already been served. Quite frankly as the Court sees it, your time spent in custody, the length of it was determined solely by your own actions so you will get credit for the five months that you’ve been in custody but it will not be doubled. [Transcript pp. 62-63] Page: 7 [14] It is clear form the foregoing passages that the trial judge considered it relevant in sentencing Leyte that upon arrest Leyte had falsely claimed to be a police informant thereby necessitating a further police investigation. I note from the statement of facts read into the record at the sentencing hearing that the charges arising from Leyte’s obtaining false identity documents were not laid until the conclusion of the police investigation into Leyte’s claim of being a police informant. The charges were laid on January 14, 2009. The logical implication of the foregoing is that Leyte’s false statements delayed the laying of those charges with a consequential effect upon the length of his pre-sentence custody. [15] The trial judge further recited that Leyte was a repeat offender who had not benefited from earlier sentences including a conditional sentence, probation, monetary penalties and imprisonment (where there may have been rehabilitation programs). The logical implication to be drawn from the trial judge’s review of Leyte’s prior sentences is that she considered it very unlikely that he would benefit from rehabilitation programs. Though this point was not referenced in the passage cited by counsel for Leyte it would be unreasonable to conclude that the point had ceased to be of concern to the trial judge when she stated her conclusion on credit for pre-sentence custody shortly thereafter. [16] I conclude that in the exercise of her discretion respecting the credit to be given for pre-sentence custody the trial judge considered the effect of Leyte’s statements to the police upon the length of his custody and the unlikelihood that Leyte would benefit from rehabilitation programs. These were circumstances that could properly affect the awarding of credit for pre- sentence custody. Accordingly, the trial judge did not err in the exercise of her discretion, and I would dismiss the appeal. [17] In any event, a finding of error by the trial judge in respect of the denial of double credit would not have necessarily resulted in success on appeal. If the appellate court considers the sentence of 23 months fit it may decide, pursuant to s. 687(1) of the Criminal Code, not to alter the sentence despite the perceived error. R. v. Rezaie (1996), 112 C.C.C. (3d) 97 (Ont. C.A.): Orr, supra, at paras 5-6. In this case, considering the offences and Leyte’s history it is my view that, even giving double credit for pre-sentence custody, a sentence of 23 months was a fit sentence. R. v. Rezaie, supra. [18] Leave to appeal is granted and for the foregoing reasons the appeal is dismissed. Page: 8 ______________________________ K. J. Mercer, J.A. I Concur: ___________________________ B. G. Welsh, J.A. White, J.A. (Dissenting in Part) [19] Despite my conclusion that the trial judge made an error in approach respecting credit for pre-sentence custody, I agree with my colleague Mercer J.A. that the sentence imposed of 23 months was, nevertheless, a fit sentence. [20] I also agree that the extent of credit for pre-sentence custody is not governed by a rigid formula but is a discretionary matter for the trial judge and, as he also states, that discretion must be exercised on a principled basis. [21] In Provost, Rowe, J.A., stated at para. 34: The usual practice is to give “double credit” or “two for one” for time served in custody while awaiting trial. [22] As there is a “usual practice” with respect to additional credit for pre- sentence custody, it is incumbent on a trial judge to clearly set out a rational basis for exercise of discretion in denying additional credit so that it will be obvious that the discretion is exercised “judicially and not arbitrarily or for an improper purpose” (Provost, para. 35). [23] Exercise of discretion to deny additional credit has been based on clear reasons: numerous actions of the accused which delayed the start of a trial (Jesso); post-release conduct – offender committed same type of offence while on bail for first offence (Provost); availability of programs while in detention (R. v. Neudorf (2004), 187 C.C.C. (3d) 190 (BCCA)); and, failure to apply for bail (R. v. Sooch (2008), 234 C.C.C. (3d) 99 (Alta. C.A.)). Page: 9 [24] In reading the sentencing decision of the trial judge (with particular attention to those sections reproduced at para. [13] above) I cannot find where she sets out a rational basis for denying extra credit. [25] My colleague, Mercer, J.A. suggests, in paras. [14] and [15], that one might be able to read some of the trial judge’s comments as if she was implying that Leyte’s actions in suggesting he was a police informant and that he had not been deterred from crime by previous conditional sentences, probation orders, monetary penalties were factors to be considered in determining whether extra credit for remand time should be given. However, this is something she does not expressly do. The only clear reason given in her judgment for denial of credit relates to pre-arrest conduct, a matter to be generally considered in determining an overall fit sentence, and not as a basis to deny extra credit for time on remand. The comments relied on by my colleague for his conclusion were made by the trial judge in a different context. There is nothing in her reasons for decision to suggest a logical connection between them and her conclusion, given later, that no extra credit for remand time should be given. [26] A court reviewing the exercise of discretion should be able to determine the basis of such exercise clearly from the judgment and without the need to search for implications or be left in a state of uncertainty as to the basis of judicial action. [27] As the trial judge did not set out a proper basis for the exercise of discretion, I am unable to conclude that discretion was exercised on a principled basis. It was, therefore, an error to deny additional credit for time in pre-sentence custody. [28] As noted above, applying the discretion conferred on an appellate court by s. 687(1) of the Criminal Code, I would affirm the sentence since in my view it is, nevertheless, a fit one. ______________________________ C. W. White, J.A.