Truth in Sentencing Act changes to sentencing apply only to matters where the offence took place after the amendment

In R. v. Serdyuk [2012] A.J. No. 673 the Alberta Court of Appeal holds the Truth in Sentencing Act changes to sentencing apply only to matters where the offence took place after the amendment regardless of the time of charge: 

49     The amendments in question here are matters of substantive law. They are not merely procedural. Accordingly, the debate in cases such as R. v. Dineley, reserved (October 13, 2011) [2010] SCCA No. 121 (QL) (33640) from 2009 ONCA 814 need not delay us here. As part of the sentencing provisions of the Criminal Code the change to s. 719 from what it was compared to what it is now is clearly legislation which was intended to and which does "affect" the operation of the punishment provisions of the Code. As such, it is necessary to look at s. 43 of the Interpretation Act which provides as follows:• 43. 
Where an enactment is repealed in whole or in part, the repeal does not

• (a) 
revive any enactment or anything not in force or existing at the time when the repeal takes effect,

• (b) 
affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder,

• (c) 
affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed,

• (d) 
affect any offence committed against or contravention of the provisions of the enactment so repealed, or any punishment, penalty or forfeiture incurred under the enactment so repealed, or

• (e) 
affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation or liability referred to in paragraph (c) or in respect of any punishment, penalty or forfeiture referred to in paragraph (d),

• and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the punishment, penalty or forfeiture may be imposed as if the enactment had not been so repealed.

50     In our view, without burrowing deeply into any specific subsections of s. 43 set out above, we are persuaded that this section affirms the presumption, undisturbed by s. 5 or by any other aspect of the Truth in Sentencing Act that I can detect, that the relevant law for the application of s. 719 of the Code regarding the appellant was the repealed s. 719(3) of the Code.

51     Therefore, contrary to the impression of the sentencing judge, he was required to apply s. 719(3) of the Code as it applied at the date of the offence of the appellant. The repeal of former s. 719 could not "affect" the operation of former s. 719(3) in the appellant's case in this regard. It could not affect "any punishment, penalty or forfeiture incurred under the enactment so repealed" nor could it affect any "remedy" which was "in respect of any punishment, penalty or forfeiture referred to in paragraph (d),". I need not go on to consider whether the ability of an offender to ask for any sort of credit for pre-sentence custody is a "privilege" under the law. The fact is that the sentencing judge under the former law could, in principle, have given the appellant 726 days credit for 363 days of pre-sentence custody against the minimum sentences if he was persuaded to do so. Under the prevailing reading of the present s. 719(3) of the Code, he could not for offences after February 22, 2010.

52     Consequently, the appellant as an offender faced the force of the punishment provisions of the Code as they existed at the date of his offence, and not the force of the punishment provisions that did not then exist. There was a recognized jurisdiction of the sentencing judge, even as against a minimum penitentiary sentence, to give credit of more than 363 days for the days thus spent in pre-sentence custody, for example 726 days. The Crown's interpretation would not merely say the sentencing judge should be persuaded by the new provisions to exercise discretion not to give 726 days credit. The Crown's argument is necessarily that the sentencing judge had no jurisdiction to give 726 days credit as against the minimum sentences that applied here. The reality is that the ability of the sentencing judge to affect the real sentence is, under the Crown's reading, directly limited by the new Code provisions. It is not just a matter of 'discretion before' and 'discretion continued' such that the change in law has no material effect.

53     The appellant adds the suggestion that s. 11(i) of the Charter created a "right" within the meaning of s. 43(c) of the Code as well, but, for the same reasons as set out above, we elect not to deal with that submission. I need not say what s. 11(i) of the Charter might mean or imply and, as indicated above, I decline to do so.

54     It is necessary to note that a panel of this Court already got close to this issue in R. v. McFadzen, 2011 ABCA 53, 499 AR 154, where, in closing out the judgment in that case on the topic of pre-sentence custody, the panel wrote:• 36 In her factum, counsel for the appellant made reference to the "truth in sentencing" legislation which was proclaimed in force February 22, 2010 amending the Criminal Code to, inter alia, limit credit for time served in custody prior to sentencing to one-for-one and in exceptional circumstances, to one and a half days credit for each day served. These provisions apply only to offenders whose charges post date February 22, 2010 and hence do not apply to the appellant.
• 37 Counsel for the appellant argues that if the sentencing judge limited credit to actual days served on account of the new legislation, he would have breached not only the requirements that reasons be stated (Criminal Code section 719 (3.2)), he was possibly breaching the Charter as well.
• 38 This represents speculation and nothing more. The sentencing judge was experienced and is presumed to know the law. We are therefore not prepared to accept the speculation that he was improperly motivated in giving only one-for-one credit due to the recent amendments to the Criminal Code that did not apply to this particular appellant. • 39 That said, the sentencing judge gave absolutely no reason why the then usual practice of crediting two days for each one day served in pre-sentence custody ought not to have been followed. No reasons having been articulated for this departure from the then usual practice, we are of the view that it ought to have been followed and accordingly we grant to the appellant credit on a two-for-one basis.
• 40 It would appear that the appellant served a total of three months in custody prior to the date that sentence was imposed and accordingly he is afforded a credit of six months to be applied against his sentence as altered by this court.

55     The offences in McFadzen occurred in April, 2007 and he was tried in 2009. So the offences occurred not only before the coming into force of the Truth in Sentencing Act, but even before its enactment by Parliament. The panel was not satisfied that the language of s. 5 of that Act was such that the Act disqualified McFadzen from double credit for pre-sentence custody. We do not find McFadzen to support the Crown view. In its position, the Crown could seek to apply the Truth in Sentencing Act to any offences that predated February 22, 2010, as long as the offenders were not charged until after that date. See also R. v. Vedres, 2012 BCCA 232 at paras. [14] to [26].56     It follows that the terms of s. 719(3) of the Code which control in the present case are those which existed in the repealed Code provision that was in force at the date of the appellant's offences. The operation of that provision should not be stymied ex post facto. And particularly that is so when the only reason not to apply the former s. 719(3) of the Code is the happenstance that the appellant was not charged when he might have been and was charged a matter of days later. The sentencing judge was led into error of law on this issue.