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Page 10 December 3, 2018 • Law Times www.lawtimesnews.com Harsh conditions mean more enhanced credit requests BY SHANNON KARI For Law Times H arsh conditions and frequent lockdowns in provincial detention centres are leading to more applications for "enhanced credit" for pretrial custody be- yond the standard amount permitted under the Criminal Code. The so-called "Duncan cred- it" is within the jurisdiction of trial judges to award, the Ontar- io Court of Appeal stated again in a decision this fall. One of the judges, however, called for it to deal with the issue more com- prehensively to assist the trial courts. "It seems to me that further guidance is needed from this court as to what circumstances may justify enhanced credit," wrote Justice Bradley Miller in a concurring decision in R. v. Gregoire. "This may also require an ex- planation of the doctrinal foun- dation for the practice of grant- ing enhanced credit outside of s. 719(3.1), with specific reference to the interpretation of s. 719(3.1) provided by the Supreme Court of Canada in R. v. Summers," he added. The three-judge panel in Gregoire declined in that case to grant more than 1.5 to one credit for pretrial custody. But the majority decision written by Justice David Pacioc- co made clear that, in certain circumstances, this would be appropriate. "Sentencing judges in fact have the authority to give ex- tra credit beyond 1.5:1 for pre- sentence custody served in harsh conditions," he stated, citing the Court of Appeal's decision in 2016 in R. v. Duncan. Marianne Salih, a lawyer at Edward Royle & Partners LLP, says more appellate guidance would be helpful. "There is still confusion as to what evidence is required to show adverse effect and to meet the burden to be awarded en- hanced credit," she says. The Supreme Court of Can- ada, in its 2014 decision in R. v. Summers, concluded that the 1.5 to one maximum in the Crimi- nal Code as amended by the gov- ernment of Stephen Harper did not require exceptional circum- stances to be granted. In part, it was because pretrial custody does not count toward parole eligibility on sentencing. "Offenders who do not re- ceive bail will serve longer sen- tences than otherwise identical offenders who are granted bail. This result is incompatible with the parity principle," wrote Jus- tice Andromache Karakatsanis for the court. Since the Court of Appeal followed up two years later with its decision in Duncan, the case law suggests that enhanced credit might be granted "when there have been continuous lockdowns or the accused has a physical health condition that has not been attended to and has been aggravated in custody," says Salih. During lockdowns, there are no phone privileges and only a limited number of inmates are selected as part of the "shower program" to be able to have show- ers on these days, she says. Some of the applications for enhanced credit in recent years have been filed in southern On- tario. "People are facing very harsh conditions," says Breana Vande- beek, who acted for the appellant in Gregoire. Overcrowding, staff short- ages and labour disputes by the guards are contributing factors, she adds. Vandebeek's client, who was sentenced to eight years for manslaughter, faced lockdowns for more than 300 days of the 18 months he was held in pretrial custody at the Maplehurst Cor- rectional Complex. His cell, which is normally for two inmates, was triple or quadruple bunked for nearly 60 of those days. After lockdowns end, it is not uncommon, she says, for fights to break out for the use of phone and shower privileges. The principle that harsh pre- trial conditions such as a lengthy and very restrictive house arrest while on bail may be a mitigat- ing factor in sentencing was first set out by the Court of Appeal in 2006 in R. v. Downes. "If you can get mitigation for the terms of your house ar- rest, then there should not be undue procedural hurdles [for enhanced credit] when the state has detained you in horrendous conditions," says Vandebeek, an appellate lawyer at Rusonik O'Connor Robbins Ross Gor- ham & Angelini LLP in Toronto. 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Tanovich, and Lisa Dufraimont © 2018 Thomson Reuters Canada Limited 00253EO-93686-NP Marianne Salih says more appellate guid- ance would be helpful around seeking applications for enhanced credit. See Lockdowns, page 13 Lockdowns represent a modern form of the harsh Dickensian conditions that motivated the Victorian movement towards prison reform. Justice Robert Goldstein