Bench Press 37-5: Judicial Discretion Defended - LawNow Magazine

Bench Press 37-5: Judicial Discretion Defended

The Ontario Court of Appeal, along with appeals courts in Manitoba and Nova Scotia, have baulked at having their discretion in sentencing curtailed by provisions in the federal government’s Truth in Sentencing Act. A unanimous three-judge panel agreed that sentencing judges retain discretion to reduce a sentence by as much as 1.5 days for every one day an accused spends in pre-trial custody when “such credit is necessary to achieve a fair and just sanction.”

Otherwise, the judges pointed out, accused persons who are allowed out on bail and subsequently convicted of the same offence as those kept in custody pending trial will serve less time. However, the Court said that this enhanced credit is not automatic.

Justice Cronk wrote

“There must be some basis in the evidence… before the sentencing judge to support the conclusion that this factor merits enhanced credit for a particular offender in a given case.”

R. v. Summers, 2013 ONCA 147 (CanLII)



Teresa Mitchell
Teresa Mitchell
Teresa Mitchell is the former Editor and Legal Writer for LawNow at the Centre for Public Legal Education Alberta.

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