R. v. Kovich,  MJ No. 417, dealt with the provisions of the Criminal Code and the Truth in Sentencing Act dealing with bail and credit for pre-sentence custody.
This appeal challenged the validity of s. 719(3.1) of the Criminal Code, which arguably prohibits a sentencing judge from giving enhanced credit for pre-sentence (remand) custody where a prisoner gets denied bail because of a prior criminal record. The Crown’s position was that s. 719(3.1) found its roots in common law principles, and that offenders who were denied bail because of their records or who would not be eligible for early release due to their record were not entitled to enhanced credit. The Crown also argued that s. 11(e) of the Charter did not come into play because if there had not been a bail hearing. The defendant successfully argued that it was unreasonable not to allow enhanced credit if circumstances justified it, and that s. 719(3.1) breached ss. 7 and 11(e) of the Charter. At least in Manitoba, s. 719(3.1) of the Criminal Code is not to be applied to as part of the sentencing process.
The facts in Kovich were that defendant had been denied enhanced credit (something more than 1 day’s credit – up to 1.5 days – for each day spent in remand custody) based on his prior criminal record. Mr Kovich had gone into remand custody after being charged with a number of property offences. He was arrested (while still in remand custody) several months later and charged with more property-related offences. He had a bail hearing and was denied bail, primarily due to his prior criminal record. He eventually pleaded guilty after approximately 14 months of when he was initially arrested. The sentencing judge denied him any enhanced credit.
On appeal, the court held that there was no violation of s. 11(e) of the Charter (Mr Kovich had been denied bail and the ‘just cause’ requirements articulated in s. 11(e) of the Charter had been met, plus there was no basis to hold that any of the bail terms were unreasonable). However, it was held that sentencing principles aren’t intended to include consideration of an offender’s bail status – and further, s. 719(3.1) infringes a person’s s. 7 Charter rights. Where a person has been denied bail due to a previous conviction it should not impact the sentencing judge’s discretion to consider enhanced credit for time spent in remand custody. Further, precluding consideration of time spent in pre-sentence custody because of an offender’s criminal record is a form of double jeopardy. The court also said the provision is not saved by s. 1 of the Charter. The practical result is that denying enhanced credit based on someone’s criminal record leads to disproportionate sentences contrary to the principles of parity in sentencing.
In sum: the practical effect of s. 719(3.1) of the Criminal Code is that having a criminal record precludes a fair assessment of pre-sentence custody and unfairly impacts the principles of proportionality and parity in sentencing. The provisions arguable also preclude consideration of other relevant factors – such as mandated by Gladue – as between an offender who was granted bail, someone denied bail due to a prior conviction, and an offender who chose not to seek bail