Enhanced pre-trial custody credit as remedy for Charter Breach

Once a court has determined that an accused person’s Charter rights have been breached the Judge must determine whether a remedy is appropriate pursuant to s. 24(2) of the Charter.  The right to grant a remedy is discretionary (a Judge may determine that a Charter right was in fact breached but not grant a remedy).  In cases where evidence was gathered as a result of a breach (such as evidence found in an unlawful search or statements made without providing one’s rights to counsel), a court will often decide to exclude evidence that flowed from the breach.  In other cases, a stay of all proceedings may be the only appropriate remedy.  Such cases where a stay may be ordered include those of unreasonable delay pursuant to s. 11(b) or a search of one’s person that oversteps what is appropriate.

In R. v. Rashid, the Court of Appeal refused leave to appeal the decision of a summary conviction appeal court which upheld the decision of a trial judge who, instead of granting a stay, awarded an accused 4 for 1 credit for two days spent in custody as a result of the breach.  The trial judge found a breach as the accused was not released from custody on a domestic related incident from the police station but rather held for a show-cause hearing pursuant to policy.  Such policies are common for domestic violence cases (this is quite a contentious issue) but, as was held by the trial judge, in violation of s. 498 of the Criminal Code as the policy takes away statutory discretion provided to the police to release the accused without holding them for bail.  As a result, the trial judge found the accused to have been arbitrarily detained resulting in a s. 9 Charter breach.  I do not believe the trial judge was holding that the officer would have been wrong had the officer exercised their discretion and held the accused for bail, but that the policy preventing discretion resulted in the breach.

It is worth noting that the Crown did not appeal the finding of a breach nor did an appeal court rule on this aspect of the decision (thus there is no binding precedent that the operation of such policies result in a breach, however the case itself could still be used as persuasive argument).

The main purpose of the appeal was the awarding of the 4 for 1 credit as opposed to granting a stay.  The accused was found guilty at trial and sentenced to an intermittent jail sentence that took into account the equivalent of eight days in custody (two days of actual time multiplied by four).  Essentially, the trial judge found that the appropriate remedy to address the breach was this advanced credit.  The Ontario Court of Appeal explained:

The trial judge in this case applied the proper legal principles and exercised his discretion to craft a remedy that appropriately addressed the circumstances of the breaches and the public and individual interests at stake.  The appellant had an appeal of the remedy decision.  The summary conviction appeal judge gave a detailed review of the remedy, applied the appropriate legal principles and found that the trial judge’s decision and reasons demonstrated a proper balancing of the seriousness of the breach, the prejudice to the appellant and the public interest.  A second level appeal of this fact-specific and discretionary remedy decision is not warranted.

Like the majority of other Charter cases, the remedy may not necessarily be satisfactory to an accused in itself, especially in cases where they are innocent of the charges against them.

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