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PAGE 6 COMMENT Law Times Group Publisher . . . . . . . Karen Lorimer Editorial Director . . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . Robert Todd Staff Writer . . . . . . . Michael McKiernan Copy Editor . . . . . . . . . Katia Caporiccio CaseLaw Editor . . . . . Adela Rodriguez Art Director . . . . . . . . . . Alicia Adamson Account Co-ordinator . . . . Catherine Giles Electronic Production Specialist . . . . . . . . . . . . . Derek Welford Advertising Sales . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. June 20, 2011 • Law Times Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign address- es. Single copies are $4.00 Circulation inquiries, post- al returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Jacquie Clancy at: jacquie.clancy@ thomsonreuters.com or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 karen.lorimer@thomsonreuters.com, Kimberlee Pascoe at 905-713-4342 kimberlee.pascoe@thomson- reuters.com, or Sandy Shutt at 905-713-4337 sandra. shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Canada's contradictory prostitution laws O ntario's Court of Appeal judg- es did a good job of probing lawyers during hearings into Canada's prostitution laws last week. Counsel for various governments have been adamant that the law should stand. While advocates for sex-trade workers say current legislation target- ing communication for the purposes of prostitution and bawdy houses makes their work unsafe, lawyers for the government argue people have a choice on whether to earn their living that way. Th e law is a reasonable response to public concerns over prostitution in general as well as the specifi c issue of victimization of sex-trade workers. But the problem, as Court of Appeal Justice James MacPherson pointed out last week, is that prostitution is a "perfectly legal occupation." MacPherson was questioning gov- ernment lawyers' assertions that sex- trade workers can simply quit their jobs if they're unsafe. But if it's legal for them to earn their living that way, it's certain- ly valid to question laws that push the sex trade into dangerous places. Th e government, then, can't have it both ways. It can't allow prostitution itself while claiming to protect people from the sex trade but making it dan- gerous at the same time. As a result, it needs to do more than just advocate for the status quo through its appeal of Superior Court Justice Susan Himel's landmark ruling last year that found the current laws violate sex-trade workers' constitutional rights through the unsafe practices they encourage. Th e situation leaves Canadians with a conundrum. Th e government could try to actually outlaw prostitution, but that's probably not realistic and would likely add to the problems that already exist. It could also change the current laws banning bawdy houses, commu- nication, and living off the avails and instead allow some sort of system for licensing and regulating the sex trade. Obviously, that's a diffi cult propo- sition for a Conservative government in Ottawa that would have trouble explaining such a move to its sup- porters. So we'll likely have to wait for the courts, possibly Ontario's appeal court, to move the issue forward. What the ultimate solution will look like is unclear as there's no obvious an- swer. But in the meantime, the govern- ment could at least try to get ahead of the issue by engaging Canadians on what they'd like to see and examining best practices around the world. It's likely, however, that it will take the courts to change things. Some people will complain about that, but in this case, it appears to be the only way of dealing with the issue ratio- nally. — Glenn Kauth Dead time is hard time. Pro- grams are rare, crowding is common, and accused live in a state of uncertainty await- ing the outcome of their pro- ceedings. Th ere's no parole or statutory remission. If acquit- ted, recompense is rare and it can't be banked for the next arrest. Prior to Feb. 22, 2010, the Judges show conflicting thoughts on enhanced credit P re-sentence time spent at the detention cen- tre is called dead time. one day for each day in re- mand. Th is is moderated by s. 719(3.1), which provides that the court can grant a maximum of 1-1/2 days un- less the person was ordered detained because of a previ- ous record or had breached or was about to breach the release conditions. Somewhat anomalously, if usual calculation throughout Canada for adults serving pre- trial custody involved a system of double credit. After doub- ling time spent in custody, the judge subtracted that number from the overall sentence. Th e advent of the Truth in Sentencing Act brought the death of dead time as we've known it. It abolished the standard calculation of two for one. Now the norm is 1:1 with enhanced credit of up to 1.5:1 "if the circumstances justify it." Section 719(3) states that the court may take any time spent in custody into account but it shall limit credit to those facing charges consent to detention rather than going through a contested hearing, they remain eligible for the enhanced 1.5:1 credit despite having a long record or having breached bail. In R. v. Johnson, the de- fence brought an argument under the Charter of Rights and Freedoms arguing that the new provisions violated the accused person's s. 15 equal- ity rights and his right under s. 7 not to be deprived of lib- erty except in accordance with the principles of fundamental justice. Marvin Johnson, who had previous convictions for cocaine traffi cking, had con- sented to his detention on drug charges. Justice Melvyn Green had serious concerns about the A Criminal Mind By Rosalind Conway constitutional validity of the new legislation but didn't strike it down. While accused denied bail would end up serving longer terms of incar- ceration than those on release, Green held that if the word "circumstances" included loss of remission and delayed par- ole eligibility, the court could give credit beyond 1:1. He credited Johnson on a 1.5:1 basis for the 12 months he had spent in custody in a deten- tion centre. He gave enhanced credit because the circum- stances of being in a detention centre entitled Johnson to it. Justice Anne Derrick of the Nova Scotia provincial court applied Johnson in granting 1.5:1 credit in R v. Dann. In that case, Antron Dann also hadn't sought bail. In another case, Orville Campbell had been arrested www.lawtimesnews.com at Pearson International Air- port for importing $165,000 worth of cocaine from Ja- maica. On his arrest, he re- freshingly said something on the lines of, "I just want to get this over with, I just got caught." Using similar reasoning to the conclusions in Johnson, Superior Court Justice Casey Hill granted 1.5:1 credit. In his view, the circumstances justifi ed en- hanced credit for pre-sentence custody given the off ender's separation from his family in England, the conditions in the detention centre, and the ineligibility of time served in calculating parole. Hill cred- ited his 106 days in custody as 159 days. Segregation may or may not lead to granting enhanced credit. In an Internet-luring case involving child pornog- raphy, the court reached a diff erent result. It hadn't been told of how the accused's seg- regation and crowded cell dif- fered from incarceration in a reformatory or penitentiary. Th e judge gave enhanced credit only for the period that elapsed after plea and pend- ing production of the pre- sentence report. Parliament's clear intention was that credit beyond 1:1 was the exception rather than the rule, the court held. Other judges have also con- cluded that credit beyond 1:1 is the exception. Newfound- land provincial court Justice Wayne Gorman, for example, called 1:1 the "general rule" in R. v. Brenton. So the decisions up until now are contradictory. As a matter of defence strategy, note that clients are most likely to get enhanced credit if they have no criminal record or have con- sented to detention. If there's suffi cient evidence to show a specifi c impact by the deten- tion or the conditions of it, the client is more likely to receive enhanced credit. Similarly, if de- lays were outside the control of the accused, counsel can argue for enhanced credit. Rosalind Conway is a certifi ed specialist in criminal litigation. She can be reached at rosalind. conway@gmail.com.

• Cover
• Diversity Stats
• Enhanced Credit
• Focus On Family Law