The declaration, by Supreme Court of the Northwest Territories Justice Louise Charbonneau, was made as part of a sentencing decision in R. v. Nadli, a sexual assault case in which the accused had spent 744 days in remand.
In April, the Supreme Court of Canada, in R. v. Summers, issued its own controversial ruling that allowed judges to offer the maximum “enhanced” credit of 1.5 to 1 for time served.
The accused in this case, however, did not qualify for this enhanced credit due to a technical provision in the act stipulating if the accused is denied bail for prior convictions, he or she will be ineligible for the enhanced credit.
Peter Harte, counsel for the accused, argued this provision violated the Charter on multiple grounds:
1) it discouraged the accused from exercising his or her right to apply for bail hearing;
2) it punished the accused twice for the same crime; and
3) it resulted in a grossly disproportionate sentence.
Charbonneau agreed on all points.
As the decision states: “. . . the accused will certainly know the risk: a denial of bail based on the criminal record will mean that credit for remand time will be limited to a 1:1 ratio instead of being limited to 1.5:1, a difference of 50%. The prospect of spending 50% more time in custody when all is said and done, is not insignificant. It is hard to see how it would not act as a deterrent to apply for bail.
“Is this deterrent enough to constitute a breach of paragraph 11(e) [of the Charter]? In my view, it is.”
Harte says this ruling will reverberate across the country: “Regardless of what went on in Mr. Nadli’s case, that standalone declaration that the provisions are unconstitutional apply now in theory to other accused people in the territory and eventually elsewhere.”
The fundamental problem, he says, is the arbitrariness of a provision that allows a justice of the peace, in granting or denying bail for whatever reason, to limit the discretion of a superior court judge in deciding whether to grant enhanced credit.
“Why should an accused, who has the right to seek bail, have a penalty of losing presentence or pretrial custody credit imposed as a result of losing a bail hearing?”
From this primary Charter violation stem the other two: a convict denied bail will, all things being equal, spend more time in custody than a convict who had been granted bail (punished twice for the same crime). And the resulting sentence would be 50-per-cent longer (grossly disproportionate).
Harte says the act’s provision on bail hearings has led defence counsel to advise clients to forego their rights.
“I've told clients, ‘Look, you're going to get detained. Just stay put. Don't run a bail hearing.’ And I know the situation is the same for my colleagues.”
It’s a situation that is fundamentally unfair, he says, and will ultimately lead to further challenges. “I just don't think it will withstand constitutional scrutiny.”