The elimination of two for one pretrial custody seems to be fairly popular politically. Ignoring the fact the two for one was not widely abused and worked well with our post sentencing release calculations there is a practical problem in the way the new rules work.
An accused may get enhanced pretrial sentencing credit unless the accused is detained because of a prior conviction. The problem is that the test for detention is not based on prior convictions -- it is based on the risk of flight, repetition of offences or, rarely, public perception of justice. While a prior conviction is a factor in the secondary ground (further offences) to detain primarily on prior convictions would be an error.
The obvious way around the problem is to vest the determination of enhanced credit in the hands of the sentencing judge and not a Justice of the Peace shortly after arrest.
In the current system the Justice conducting a bail hearing has to consider the three grounds for detention and if detaining then go further and ask what is the fundamental fact(s) leading to detention. This two step process, unless done very carefully, is likely to lead to error -- and slows the process considerably -- already bail hearings are being lengthened.
It is a process that didn't need to be.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
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