Law Times

Law times • OctOber 22, 2012 Ontario Court of Appeal to rule on pretrial credit NEWS BY MARG. BRUINEMAN For Law Times W resented the Criminal Lawyers' Association as intervener with lawyer Russell Silverstein in the recent case of R. v. Summers before the Ontario Court of Appeal, says the issue of pretrial credit in light of the Truth in Sentencing Act has arisen in other provinces as well. "You've got at least three courts of appeal grappling with the issue, says Cawkell of Hicks Adams LLP. "For the most part, B.C., Yukon " served its decision in Summers. In British Columbia and Nova Scotia, appeal courts recently fa- voured enhanced credit while in Manitoba, the Court of Appeal' territories, and Nova Scotia gener- ally favour enhanced credit." Ontario' s appeal court has re- decision is on reserve. "Pretrial detention is one of s the most serious problems we have in Ontario, Boxall, an Ottawa lawyer and president of the CLA. "The extent to which we have " says Norm pretrial detention . . . is a blight in our justice system." Boxall of Bayne Sellar Boxall is referring to the large number of people held in oſten-overcrowded remand facilities for long periods of time in some cases. A key con- cern for lawyers is the amount of time credited to the accused upon conviction for pretrial custody. The Truth in Sentencing Act, which came into effect in Feb- ruary 2010, limits credit for pretrial custody to one day for every day served while allowing enhanced credit of 1.5-to-one if the circumstances justify it. In passing the legislation, the government argued there should be no rewards for bad behaviour. "For ordinary Canadians, it is hard to understand how such sentences comply with the pretrial custody, many lawyers expect the matter — which is cur- rently before the Ontario Court of Appeal in a case now on re- serve — will ultimately reach the Supreme Court of Canada. Corbin Cawkell, who rep- ith the courts issuing conflicting rulings on enhanced credit for fundamental purposes of sen- tencing, which is to denounce unlawful conduct, deter the of- fender from committing other offences, and protect society by keeping convicted criminals off the streets," Minister of Justice Rob Nicholson told Parliament when introducing the act. "The practice of generous credit erodes public confidence in the integrity of the justice system. It also undermines the commitment of the govern- ment to enhance the safety and security of Canadians by keeping violent or repeat offenders in cus- tody for longer periods." Previously, it was common in awarding "From our point of view, our clients get a fair shake if they get 1.5-for-one, While Cawkell believes there's a " says Cawkell. strong constitutional argument to make, the current challenge focuses on the statutory interpre- tation of the act. Cawkell points to an analogy sentencing for judges to grant two days' credit for every day served before and during the trial. The basic concept was that those de- nied bail have very few privileges, limited access to services, and re- main in crowded facilities with harsh environments. It counts as dead time because time in jail prior to conviction doesn't apply to time served when it comes to parole considerations. The pun- ishment, therefore, can be greater for those held in remand than someone granted bail. As a result, some lawyers argue those serving dead time should receive extra credit for time they spent locked up waiting for their day in court. "If persons are ultimately found guilty . . . it is unfair and wrong to limit their credit to one-for-one, says Boxall. "Just on the arithmetic, with- " out even factoring the harsh con- ditions, one-for-one is wrong. I think it' judges maintain their discretion- ary power and craſt a fair and just sentence and the appropriate credit for pretrial detention." In Ontario, Cawkell has found s really important that a difference between the On- tario Court of Justice, where he' seen more instances of one credit, and the Superior Court with more reported deci- sions showing one-to-one credit. The discrepancy extends across jurisdictions as well. There' 1.5-to- s greater likelihood that an of- fender will receive 1.5-for-one credit in Newmarket, Ont., and one-for-one credit in Hamilton. s a CANADA LAW BOOK® made in the Nova Scotia Court of Appeal case that used identi- cal twins participating equally in a crime to illustrate the potential flaws. In the analogy, only one of the identical twins gets bail while the other spends six months in remand. They both receive 18-month sentences upon pleading guilty. The twin who got bail would earn remission and serve a total of 12 months. The twin in remand gets six months' credit for time served, reducing the sen- tence to 12 months. He' resulting in a total of 14 months in jail. d serve eight months of that, Gregory Tweney argued in a factum that Sean Summers should get 10-1/2 months' credit for the 10-1/2 months he spent in pretrial custody even though the trial judge granted enhanced credit of 16 months because of the lack of earned remission. That on its own, ar- gued the Crown, doesn't justify credit beyond the one-for-one approach set out in the Truth in Sentencing Act. The federal government, meanwhile, is staying firm as it says there's no inten- In the Summers case, Crown lawyer 'From our point of view, our clients get a fair shake if they get 1.5-for- one,' says Corbin Cawkell. suring that individuals found guilty of crimes serve a sen- tence that reflects the severity of those crimes," she said. "This legislation strictly limits the amount of LT tion to revisit the act or revise it, said Department of Justice spokeswoman Carole Saindon. "The government is committed to en- credit that may be granted for time served in cus- tody prior to sentencing, bringing greater certainty and clarity to the sentencing process." PAGE 5 INCISIVE FEDERAL LABOUR LAW INFORMATION NEW PUBLICATION FEDERAL LABOUR LAW AND PRACTICE EDITORS: BRIAN BURKETT, DOUGLAS GILBERT, AND MARGARET GAVINS The editors have recruited a team of exceptional labour lawyers from across Heenan Biaikie LLP to co-author Federal Labour Law and Practice. This text provides a detailed and analytical review of federal labour law as it has been developed by the Canada Industrial Relations Board and the courts. 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