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.


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