Ontario Court of Appeal Stands Up for Judicial Discretion

I’ve spoken a great deal on this blog about the ways in which the overnment’s “tough on crime” legislative initiatives are changing Canada’s legal landscape, and in many cases infringing on the rights of individuals facing criminal charges. As a criminal defence lawyer in Toronto, I firmly believe that any amount of time my clients spend detained in pre-trial custody should be accurately reflected in their sentencing, in a manner equal to all other individuals undergoing similar charges. Unfortunately, the Government’s “Truth in Sentencing Act” sought to muddy the waters in this regard.

Since the 1970’s, judges in Canada have typically granted two days credit for every one day spent behind bars in pre-trial custody. In 2010, the “Truth in Sentencing Act” dictated that only one day credit be given for every day spent in pre-trial custody, with a maximum of 1.5 days where justifiable. But if an accused person had been denied bail primarily because of their criminal record, no extra credit was to be issued. Given that there are many reasons why citizens are denied bail (not the least of which being an absence of social supports), the Act sullies the equality of citizens in our legal system, making it possible for two people charged with identical crimes to be dealt very different sentences.

The other perverse aspect of this legislation is that it effectively allowed the Justice of the Peace who conducts the bail hearing, usually at the beginning of the case based on very little evidence and relatively little information about the accused person, to make a rulings which affected the determination of the sentence by the trial judge who actually hears the case. Among all the things wrong with this, keep in mind that all judges have been trained in the law through years of practice as a lawyer, but a person does not even require a law degree to be a Justice of the Peace.

Here’s the good news: Two weeks ago, the Ontario Court of Appeal stood up for judicial discretion and struck down this portion of the “Truth in Sentencing Act” as unconstitutional. For a judge to come to a fair sentence at the end of a trial, the focus needs to be on the individual details of the case and the offender’s individual circumstances. The government’s attempts to create laws that limit a judge’s case-by-case discretion can only result in broadly sweeping punishment that may not fit the case at hand; a conclusion not welcomed by any responsible criminal defence lawyer.

Having defended clients facing charges for anything from attempted murder to impaired driving, I understand the weight that pre-trial detention holds within my clients’ personal lives. It’s time away from their families. Time away from work. Potential financial catastrophe. As a criminal defence lawyer in Toronto, it’s my job to provide my clients with the best possible outcome, and I’m pleased to see that the Charter of Rights and Freedoms can be relied on as a basis for correcting the misguided attempts by the government to manipulate our court system. If you’re currently facing charges, reach out to my office online at macdonald@criminaltriallawyers.ca, or by telephone at (416) 459-3352 to learn more.

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What do you think? Should being denied bail dictate how much credit is given for pre-trial time served?