Friday, April 21, 2006

Will Alberta Produce the Next Major Askov Decision?

Particularly in Calgary and its surrounding circuit points, Alberta courtrooms are becoming increasingly packed...and the backlog is getting dangerously close to producing a situation where thousands of criminal cases may be stayed simply because there are not enough resources for matters to be brought to trial within a reasonable time.

In the landmark case known as R. v. Askov, the Province of Ontario was forced to drop more than 50,000 cases outright because the backlog was too large and the rights of accused persons to a fair trial within a reasonable time were being breached.

In Strathmore, AB trial dates are this week being set for the middle of March, 2007...a few days shy of 11 months down the road.

The Askov standard suggests that matters should be brought to trial within 8 to 10 months in the normal course, with some extension being acceptable for more complex matters or for particularly busy jurisdictions.

The Alberta Government seems to know that they are in trouble as they have recently announced a number of new judges and prosecutors will be hired to help ease the caseload...but the looming question is whether such measures will prove to be too little too late.

Defence lawyers should be particularly alert to maintain their client's Askov rights at each pre-trial court appearance because it may take a while for any of the new resources to actually work their way into the system...and in the interim, the delays may be your proverbial "ace in the hole".

Tuesday, April 11, 2006

Ontario Court of Appeal Upholds Refusal to Give 2 for 1 Credit

On the heels of my last post, the Ontario Court of Appeal has upheld a lower court decision refusing to grant an offender 2 for 1 credit for pre-sentence custody.

While the unanimous Court does recognize the general practice of giving adult offenders 2 for 1 credit, it at the same time holds that a sentencing judge basically has full discretion to depart from this practice where it is seen to be appropriate.

It would appear that so long as the sentencing judge has some principled basis for departing from 2 for 1 credit, and gives some explanation of that basis on the record, that such decisions will be given great deference by appellate courts.

The Court writes:

[25] The sentencing judge’s reasons for sentence make it patently obvious that he saw the appellant as posing a serious danger to society and that he would not likely receive parole. The reasons for departing from the practice of awarding 2-for-1 credit for pre-sentence custody are readily ascertainable and the sentencing judge did not have to repeat them in relation to this factor. His departure from the
normal practice was not an unreasonable exercise of his discretion.

Further warning for defence lawyers to no longer assume that 2 for 1
credit can be relied upon.

Wednesday, April 05, 2006

Pre-Sentence Credit Cannot Be Taken For Granted

Criminal lawyers should be wary...don't take it for granted that your client will get 2 for 1 credit for pre-sentence custody.

Not all judges are willing to play ball. A provincial court justice recently nailed an accused with straight one-to-one credit in sentencing. He went further, suggesting that some criminals try to 'stretch out' their Remand time in order to shave extra months off their final sentences.

He might have gotten that idea from an Edmonton Sun article which ran last fall, quoting a representative of Remand guards saying canny inmates avoid being transferred to less-crowded units at the jail, to boost sentence credits.

It's a notion that sends criminal defence lawyers into fits. For one thing, it suggests some judges may be changing their sentencing practices because they suspect Remand inmates are exploiting lousy lockup conditions to pare months off their prison time.

Generally speaking, the vast majority of judges continue to apply 2 for 1 credit as a matter of course, but this story represents the latest in a string of ever-increasing incidents where judges are being very suspicious of offenders who appear to be trying to "bank" good time prior to being convicted.

When it comes to guilty pleas, defence lawyers ought to start including a caution to clients about the "convention" of 2 for 1 credit in the standard procedure for dealing with s. 606(1.1). Obviously, many offenders will want to vacate their guilty pleas or appeal their sentences in the event that they are not given 2 for 1 credit, and they will be quick to point out to the courts that their lawyer didn't advise them that it was possible they might only get 1 for 1 credit.