Thursday, May 12, 2011

Ontario's Civil Remedies survives another challenge and avoids another.

I was counsel in Ontario (Attorney General) v. 8477 Darlington Crescent, 2011 ONCA 363 decided 2011-05-10, by Doherty J.A. of the Court of Appeal for Ontario.  Watt and Epstein JJ.A. agreed with his reasons.

Consistent with the decision in Chatterjee v. Ontario (Attorney General), 2009 SCC 19, the court upheld a challenge to the provisions of the Ontario Civil Remedies Act, 2001, but allowed a narrow discretion for relief from forfeiture.  Interestingly, the court agreed with the Attorney General's assertion that mortgage payments derived from illegal activities tainted the entire property.  Therefore, the properties were proceeds.  That was sufficient to uphold the decisions below, without dealing with the challenge to Part III of the Act regarding instruments.

Wednesday, February 16, 2011

Long probation terms

The maximum probation term in Canada is three years.  Not everyone is entitled to probation.  Thus, if an individual receives a sentence of more than two years in jail, probation cannot--I repeat cannot--be part of the sentence.  Thus probation is actually a sentencing option theoretically reserved for less serious offenses, the idea being that for certain offenders, both society and the offender benefit from a suspended sentence or a shorter term in prison, coupled with the appropriate period of probation. 

The length of a probation term is still not something that should be decided lightly.  Sometimes, but I will say, not that frequently, a prosecutor will demand the term of probation be for the maximum period and defence counsel do not complain about the proposed term.  However, unless there is rehabilitative purpose to the length of the term, the length of term should not be longer for a purpose other than for rehabilitation.  This principle may be drawn from the case of R. v. Ziatas (1973), 13 C.C.C. (2d) 287 (Ont. C.A.).  The point was a little different as it concerned a probation condition not the length of the term.  There, the condition not to drive a vehicle was considered purely punitive, not rehabilitative.  However, by the same principle, the length of the term should be based on consideration that are not strictly punitive.

Today, the Court of Appeal for Ontario in R. v. Blais, 2011 ONCA 133 (CanLII) 2011-02-16, made this statement that actually is helpful in instances where the prosecution seeks a lengthy probation term, in the absense of a significant criminal history:

[2] In the light of the appellant’s extensive record, and the rehabilitative objective of a probation order, a three-year term is appropriate. At the sentencing hearing, the appellant expressed his intent to turn his life around. We view the probation order as promoting his ability to do so.

Friday, January 21, 2011

Almost a Year of Sentencing Truth

It seems difficulty to get away from thinking about the problems in the recent Truth in Sentencing Act, Bill C-25, legislation. The anniverary of the implementation of that legislation is coming up on February 22.


The important provisions are the amended portions of s. 719:
Determination of sentence


(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.


Exception


(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).


Reasons


(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.


Record of proceedings


(3.3) The court shall cause to be stated in the record and on the warrant of committal the offence, the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed. 



It appears judges have accepted that credit on only a 1:1 proportion is the standard and enhanced credit is only available in exceptional circumstances. The new 1:1 is now the old 2:1 and current thinking appears to be along the lines that any enhancement must be justified in the same manner as "better than 2:1" was allowed before. 

Respectfully, this is not the correct approach because, while Parliament has fixed the norm at 1:1, Parliament did not declare that enhanced credit be limited to extraordinary circumstances.  In fact, nothing prevents the exception from applying in even the majority of cases.  Parliament only declared enhanced credit is available "if the circumstances justify it."  The requirement does not have to be a difficult standard to meet, nor is there any special evidence that is necessary. Appropriate submissions should be enough.

The problem with the former system is that the public perceived that prisoners were deliberately delaying trials and pleas to get the benefit of enhanced credit.  While there is no doubt this happened, the current preference for limited credit for pretrial custody puts many prisoners at a disadvantage. This is simply not fair.  Therefore, offenders who do not delay in having their matters heard in court can be said to come under the category of cases where "the circumstances justify it."
A recent case in the Court of Appeal for Ontario, supports these arguments.  See R. v. Monje, 2011 ONCA 1 (CanLII) 2011-01-04, sitting Laskin, Armstrong and LaForme JJ.A.  The author of the decision is H.S. LaForme J.A.  Although decided for a matter before the Truth in Sentencing regime, this case is extremely important because it recognizes that the question of parol eligility is a factor in the giving appropriate credit for time-served.   I have argued the point that the old 2:0 credit system is not the new 1:0 credit, that 1.5 credit is justified in many, if not most, instances because it is more reflective of the actual sentence an offender should serve.

[25] In conclusion, the appeal judge is in error by treating the court’s jurisdiction over post-sentence custody as being the same as that over pre-sentence custody.  He failed to appreciate and consider that the pre-sentence custody served by the appellant does not count towards his eligibility for parole or statutory release. In other words, he failed to take into account a relevant consideration in assessing credit for the appellant’s pre-sentence custody. This constitutes an error in principle and the sentence imposed by the appeal judge is not entitled to deference. 



We will remember the Court of Appeal for Ontario, even before the enactment of this legislation, was of the view that prisoners who were likely to serve their entire sentence should not be getting enhanced credit. Therefore, as long as an offender is likely to earn remission after sentence and has not delayed proceedings unnecessarily, he or she should be entitled to 1.5:1 credit before. Of course, this still leaves open other grounds for consideration.  There is but another circumstance that justifies enhanced credit. It is where an offender has gone to trial and ended up being found guilty, but to a lesser degree of culpability than originally alleged, for instance, by being found guilty of fewer charges, or in less aggravating circumstances. In such a situation, the proof is in the pudding. Thus, an offender should not be punished for exercising his or her right to a trial and for that reason, the benefit of an enhanced credit might also be given to an offender who is still found guilty, but who clearly demonstrate that his or her defence had merit.