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Milligan’s Criminal Law Advisor | Pre-Sentence Custody

Milligan’s Criminal Law Advisor  | Pre-Sentence Custody

Extremely harsh conditions in pre-sentence custody result in reduced sentences

Milligan’s Criminal Law Advisor

By Jeffrey Milligan

Ontario courts give extraordinary credit for pre-sentence custody owing to extremely harsh remand conditions at the institution where the accused were detained

At least two Ontario trial judges have given extraordinary credit, above and beyond the maximum statutory rate of 1 1/2 to 1 for pre-sentence custody, because of very harsh conditions at the institutions where accused were inmates prior to sentencing.

In R. v. Edwards-Lafleur, 2016 ONCJ 97, an accused pleaded guilty to robbery while armed with a loaded firearm, wearing a disguise, possession of a prohibited firearm without having a licence, conspiracy to possess cocaine for the purpose of trafficking and trafficking in cocaine. He entered his pleas of guilty part way through his preliminary inquiry.

He was, to quote Justice Paul Robertson at para. 4, “an important player” in a plot to rob a cheque-cashing and money-lending business. His job was to enter the premises, vault the counter and disarm the clerk of the panic alarm button. In the course of the robbery, he slammed her against a wall and knocked her to the floor.

He was on bail for charges of assault with a weapon and for a breach of a youth court disposition order and was bound by three separate probation orders when the offences were committed.

At the time of his sentencing, he had been in custody for a total of 694 days at the Toronto East Detention Centre (”the East”) and then at the Toronto South Detention Centre.

While at the East, he was “triple bunked” for over 100 days, which was over a third of his time there. He was housed in a cell designed for two men; two inmates had bunks and one inmate slept on a mattress on the floor. When at the Toronto South Detention Centre, he was subjected to “lockdowns” for more than 134 days. Some “lockdowns”, Justice Robertson noted, were inevitable; they are, he said at para. 19, “an inherent part of institutional life” because cells have to searched on both a routine and an unscheduled basis for weapons and contraband. Where “lockdowns” are excessive and caused by shortages of correctional staff, this may cause undue hardship. When inmates are locked down, they are confined to their cells; visits from family, friends and counsel are halted; exercise is suspended and even showers are not allowed.

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