For the second time this year, courts have found fatal flaws in sections of the federal Truth in Sentencing Act. In April the Supreme Court of Canada ruled that judges could give 1.5 days credit for every day an offender spends in pre-trial custody when determining a sentence, despite the Act’s requirement that only one day credit could be given. Now, the Ontario Court of Appeal has ruled another section of the Act violates s. 7 of the Charter of Rights. Section 719.(3.1) holds that a person who is denied bail primarily because of a previous conviction is ineligible for enhanced credit for time in custody prior to being sentenced. Justice Strathy of the Ontario Court of Appeal noted that identically-placed accused who committed exactly the same crime and have the same criminal record as another accused but was denied bail, could serve up to an additional 12 month in custody. An effect of this, he wrote, “…will be that the most vulnerable members of society – the poor, those without a support network and Aboriginal people – may be reluctant to exercise their bail rights out of concern that the denial of their bail will result….in a greater proportion of their sentence being served in custody.” He further stated “…the bail process and the considerations that go into granting or denying bail, are markedly different from the sentencing process…Whether or not an offender was released on bail is entirely irrelevant to the determination of a fit sentence. An offender denied bail is entitled to the same sentence as an equally placed offender who has been released on bail. ”
R. v. Safarzadeh-Markhali, 2014 ONCA 627 (CanLII)
About Teresa Mitchell
