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Tom Rees | Criminal Defence Lawyer Winnipeg
15
Feb

Truth in Sentencing Not Constitutional

 

In 2015, the Manitoba Court of Appeal ruled that once a person has had their bail revoked, regardless of the circumstances, they were not eligible to receive enhanced credit for time spent in pre-sentence custody. The Court expressly did not decide the constitutionality of the Truth in Sentencing provisions.

Since June 2015, offenders have been receiving 1:1 credit for pre-sentence custody in situations where their previous bail had been revoked.

The Manitoba Court of Appeal has now ruled on the constitutionality of the Truth in Sentencing provisions. The Court found that that sections 524(4) and (8), along with section 719(3.1) violated section 7 of the Charter and were not saved by section 1.

The Court first determined that Proportionality is a principle of fundamental justice (para 66). The Court went on to find that the provisions are not rationally connected to the sentencing process, rendering it unfair:

First, the exemptions subject identically-placed offenders to different periods of imprisonment (depending on whether they are able to obtain bail) for reasons that are not relevant to the determination of a proportionate sentence, thereby interfering with the principle of proportionality in the sentencing process, which is a principle of fundamental justice. (para 162)

The Court also found that the provisions were over-broad:

Second, the exemptions go too far in that they overreach in their effect; they target those who commit crimes while out on bail or violent offenders but in reality, they capture offenders who are unable to get bail because of socio-economic reasons, not because of their conduct. (para 162)

The section previously read:

  • 719(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

The section now reads:

  • 719(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody.

The MBCA has now clarified the law with respect to enhanced credit. Offenders can receive enhanced credit “if the circumstances justify it”. Revocation no longer disentitles an offender to enhanced credit for pre-sentence custody.

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