Constitutional Law – Validity of Legislation – Charter or Rights, Section 1
Criminal Law – Sentencing – Manslaughter
Criminal Law – Sentencing – Remand Time
The accused was jointly charged with another person with manslaughter, contrary to s. 236(b) of the Criminal Code. The co-accused pled guilty and was sentenced to a term of imprisonment of 7.5 years minus a one-year credit for time on remand. His remand duration was 249 days, but he was given remand credit of 1.5:1. The accused later also entered a guilty plea. The Crown and accused proposed a 7.5-year sentence of imprisonment by way of a joint submission. The Crown and accused did not agree on the calculation of remand time to be credited to the accused. The accused spent 47 days in remand and was then released on judicial interim release until he committed a theft of a motor vehicle. He was sentenced to one-year imprisonment on that charge and was then denied further judicial interim release. The accused’s bail was revoked pursuant to s. 514(8), so he was limited to 1:1 remand credit by operation of s. 719(3.1). The accused served a total of 606 days on remand. The accused brought a notice of constitutional questions application where he sought orders that: 1) s. 719(3.1) of the Criminal Code was unconstitutional and contrary to s. 7 of the Charter, and not saved by s. 1 of the Charter; and 2) the words referring to s. 514(8) in s. 719(3.1) of the Criminal Code are of no force and effect, pursuant to s. 52 of the Constitution Act, 1982. The accused argued that the principles of fundamental justice were offended by s. 719(3.1) of the Criminal Code. He further asserted that the application of s. 719(3.1) prohibited the sentencing judge from applying the principles of parity and proportionality to a person being sentenced.
HELD: The Supreme Court of Canada held that s. 719(3.1) of the Criminal Code violated s. 7 of the Charter with respect to remand time being limited if the detention was pursuant to s. 515(9.1). The violation was not saved by s. 1. The court had not dealt with the question as it related to s. 524(8). The Supreme Court of Canada found it clear that s. 719(3.1) limits liberty. The court applied the Supreme Court’s conclusions regarding the purpose of s. 719(3.1) as being directly applicable. The challenged law was found to be unconstitutionally overbroad because it deprived some people of liberty for reasons unrelated to its purpose. Further, it was held that the Crown did not justify the infringement under s. 1. The court declared the challenged portion of s. 719(3.1) to be of no force and effect under s. 52 of the Constitution Act, 1982. The accused was denied further bail because he committed a serious offence while released. The court concluded that it was not appropriate to consider remand credit of 1.5:1 for the accused. The accused was given credit of 1.25:1 for a total of 757.5 days or 2.07 years. The accused was given remand credit of two years. The court accepted the joint submission of 7.5 years. Ancillary orders were made.