Credit for time served rule changes
unconstitutional: NWT Supreme Court
Outcome of bail hearings should not affect sentencing, says Justice Charbonneau
Mark Rendell
Northern News Services
Published Friday, July 18, 2014
SOMBA K'E/YELLOWKNIFE
An NWT Supreme Court Justice made a precedent- setting decision last week when she ruled against federal changes to the criminal code.
A man sentenced by the NWT Supreme Court on July 11 faced an additional year in jail simply because he applied for bail, a fact Justice Louise Charbonneau deemed unconstitutional .
Thirty-eight-year-old Patrick Nadli of Fort Providence was found guilty of sexual assault causing bodily harm and sentenced to two years in prison by Charbonneau.
His time was reduced from the recommended five-year sentence because Nadli had already spent 744 days in custody following his arrest on June 28, 2012.
"There was no issue that Mr. Nadli should receive some credit for his remand time," stated Charbonneau in her written decision released July 11.
"But there was an issue as to how much credit he could receive."
The fact that Nadli had three years taken off his sentence for the 744 days he had already served was based on a calculation used by judges, which generally takes 1.5 to two days off a sentence for each day spent in custody awaiting trial. This is done to reflect the harsher conditions in pretrial custody.
The constitutional challenge emerged because Charbonneau chose to apply this calculation even though federal legislation enacted in 2010 by the Conservative government - The Truth in Sentencing Act - says that if someone seeks bail but is not released due to their criminal record, they would only be allowed one day of credit for each day served in pretrial custody.
Nadli applied for release twice during his pretrial incarceration, but was kept in custody because the court believed there was a substantial likelihood he would commit another crime while awaiting trial due to his criminal record.
Had she followed the federal act, Charbonneau would have handed him a sentence roughly 300 days longer.
Charbonneau decided to challenge the constitutionality of the provision.
"Decisions made at the bail stage should not have the effect of depriving offenders of the right to be sentenced in accordance with the fundamental principle of proportionality," said Charbonneau.
If a defendant is given a longer sentence because they have a criminal record and they exercised their right to seek bail, then they are effectively being punished again for old crimes, she said.
Additionally, if a person is discouraged from seeking bail because they fear it will lead to a longer sentence, their constitutional right to bail is impeded, she said.
From her perspective, this provision goes against four different parts of the Charter of Rights and Freedoms - the right to life, liberty and security of person, the right not to be denied reasonable bail, the right not to be punished for the same crime twice and the right not to be subjected to cruel and unusual punishment.
"For charter rights to be meaningful ... people have to be free to exercise them without fear of being later punished or disadvantaged for having done so," she stated, citing an earlier territorial court decision.
Caroline Wawzonek, chair of the criminal law section of the NWT branch of the Canadian Bar Association, said this ruling is part of a nationwide trend of judges calling recent changes to the Criminal Code unconstitutional.
"A lot of the provisions that the Conservative government put forward are being challenged as people are finding their rights being infringed," she told Yellowknifer.
Mandatory minimum sentences - a hallmark of the Conservative changes to the Criminal Code - are particularly problematic, she said. It takes away a judge's ability take someone's life situation, mental health and personal history, among other things, into consideration.
"It's not that there's a constitutional right to judicial discretion," she said.
"But there's a constitutional right to make sure your sentence is fair and it fits the individual circumstances of the case."
Lawyers for the Crown are still deciding whether to appeal Nadli's sentence. Until then, Charbonneau's ruling is binding and will set a precedent for all lower courts in the NWT.
