Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor ........... Gretchen Drummie Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ............. Neal Adams CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt 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 Inc. 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. ©Law Times Inc. 2009 All rights reserved. Editorial Obiter prison than remain on house arrest. A number of knee-slappers sprang to mind when the story broke, including something along the lines of what clever Law Times editorial cartoonist Pascal Elie came up with above. Given the facts of this particular case, "old ball and chain" quips and double entendres are too easy. But sadly, this is not even remotely funny. To wit: Mohamed Zeki Mahjoub stepped back into custody because his wife and stepson are no longer prepared to act as his 24-hour-a-day bail supervisors — they just can't take it anymore. According to news reports they told court they are under constant surveillance and simply cannot stand the stress of the stringent bail conditions, much less allow it to keep taking a toll on the lives of Mahjoub's two young boys aged 11 and 9. I d rather go back to t sounded like a joke: a terrorism suspect says he' March 23, 2009 • Law TiMes Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca Publications Mail Agreement Number 40762529 • ISSN 0847-5083 $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. CIRCULATIONS & SUBSCRIPTIONS 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 klorimer@clbme- dia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905- 713- 4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca ADVERTISING Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. taxpayers prepared, especially in these cash-strapped times, to continue to fork out the estimated $1 million a year it costs to keep Mahjoub under the strict scrutiny of federal agents? This has been going on nigh on two years while Mahjoub awaits a review of his case; he's one of five Muslim foreigners the feds want to deport as threats to national security. But let's not forget this sorry saga began way back in 2000 when Mahjoub was jailed without a charge on a security certificate and held for seven years until he secured a frankly hard-won bail in 2007 under the onerous conditions. That was the same year the Supreme Court of Canada found the certificate process is unconstitutional, and still this thing drags on. That's nine years . . . and counting. Hello? Doesn't jailing cost money too? "I have to go back to jail to protect Well to be blunt, are we the Canadian Just do it! my family," Mahjoub Simon Noel who reluctantly acceded to his wish. Some may interpret this, "I'd rather take jail than house arrest" move as a protest of sorts by Mahjoub over his onerous bail conditions. Well duh. But it's also probably the only thing the man could do to protect his children from life in a relentless fishbowl that has gone to bizarre extremes including having Canadian Border Service Agency agents enter a hospital room as Mahjoub's wife miscarried. The family is surveilled, photographed, mail is intercepted, the phones are bugged, there's no Internet, they are followed to things like family outings at a skating rink, Mahjoub wears an electronic bracelet. On first blush it may not sound like much to the rest of us who are not accused of being a member of the Vanguard of Conquest, a group tied to al-Qaeda. (Although Mahjoub told Justice admits he worked on a farm owned by Osama bin Laden, he denies terrorist involvement and is fighting deportation to Egypt saying he'd be tortured.) But think about what his wife Mona El-Fouli told reporters after her husband stepped back into custody for the sake of those he holds dear: "The security certificate is destroying my family." Before agreeing to send Mahjoub back to jail, Noel asked, "Do I have a choice?" When told he didn't, the judge observed, "I find that today we're going back into the darkness. We're not going ahead." Boy, did he hit the nail on the head. "Give him an open and fair trial," says Mahjoub's wife. No matter what the final outcome, it's time to get this thing done. — Gretchen Drummie Go to www.lawtimesnews.com for an audio version. of dead time by inmates ("Ac- cused Exploiting 2-for-1 Deals: Chief," the Ottawa Citizen, Feb. 6, by Don Butler). There is some public sentiment that the system is being taken advantage of. "Dead time" is the term for time spent awaiting trial or sen- tence while in custody. Generally, the time spent on remand is dou- bled where the accused is incarcer- ated. There is judicial authority for granting less that 2-for-1 where the accused has been detained fol- lowing repeatedly breaching his bail conditions: R. v. Warren. At first blush, "2-for-1" seems generous, but the differ- ence may not be significant in a short sentence. For example, a 15-day sentence is served in eight days, on a 2-for-1 pretrial basis, but it is served in 10 days with statutory remission. As the sentence lengthens, this chang- es: a 90-day sentence is served in 45 days on a 2-for-1 basis, but the 90-day sentence would have been served in 60 days, if T here was recently an ar- ticle in the Ottawa Citi- zen decrying the abuse No remnants from the tailor A Criminal the accused had pleaded guilty at his first appearance. Realistically, the arrestee is not likely to plead guilty on his first day in the system. He has to retain counsel, wait for disclosure, instruct his lawyer, wait while his lawyer pre-tries the case, and may have to wait again until there is time for his case to be heard. Using the same scenario as above, that 90- day sentence may easily have been served even before all of the steps in the case have been taken. But the accused gets no change back. Section 719(3) codifies Mind By Rosalind Conway Parliament's decision that the judge has the discretion to take dead time into account: "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." (For young persons the Youth Crim- inal Justice Act has s. 38(3)(d) which uses "shall," and 1.5 to 1 has been held to be the "start- ing point" for crediting pre- sentence custody: R. v. T.B.) There is no less applicability for cases that result in peniten- tiary sentences. In R. v. Wust, the Supreme Court of Canada noted that crediting pretrial custody is discretionary, and that there is no rigid formula, however, they noted that the 2-for-1 calcula- tion is based on the absence of programs while on remand and the lack of statutory remission. It cannot be said that no inmates take advantage of the 2-for-1 regime. Some do. But the courts generally apply 2-for- 1 unless they find that there was a "calculated scheme" to accrue time served: see R. v. Muise. The overcrowding of remand centres has even led to pretrial credit of up to 3 for 1. In R. v. R.L.L. Justice Denis Power wrote that "the overcrowding at the www.lawtimesnews.com [Ottawa-Carleton] Regional Detention Centre brings the administration of justice into disrepute." Similarly, "materially worse" fence counsel is bringing an ap- plication for greater than 2-for-1 credit, then evidence is usually required to prove the overcrowd- ing or that the conditions were materially worse than would be endured in a post-sentence custodial facility. Justice Paul Reinhardt in R. remand conditions resulted in crediting dead time on a 2.5- to-1 basis in R. v. Groves. If de- to work, and having one's own medical and dental care. Time spent in "administrative segregation" (a.k.a. solitary con- finement) for risk to the inmate's personal safety can also be reflected in enhanced credit: R. v. Wagner. Granting credit for dead time is a discretionary judicial func- tion. That 2-for-1 should be the norm is reflective of the reality: that this rough but happily sim- ple calculation is generally fair. If the client is acquitted, he is not sent back in a time machine to the date of his arrest. v. Prince applied 2.25-to-1. The UN Standard Minimum Rules for the Treatment of Prisoners, 1957, were cited and a list of deficiencies was noted. Some amenities that the UN rules grant that were found not to have been available at the Don Jail were: single rooms for un- tried inmates, wearing one's own clothing, having windows that open, having open-air ex- ercise at least for an hour daily, separating the tried from the untried prisoners, the ability cused has spent too much time in custody, he does not get handed back the remnants, as if he had been at the tailor's. is delayed, he waits. Unless the remand centres offer more pro- gramming to inmates, two-for- one credit is generally going to be appropriate, unless over-crowd- ing is shown to entitle the inmate to greater credit. If disclosure LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind.conway @magma.ca. If an ac-

• Cover
• Competition Act
• Dead Time
• Focus On Corporate Restructuring & Insolvency