The applicant brought a constitutional motion in advance of sentencing challenging s. 719(3.1) of the Criminal Code insofar as it denied enhanced pre-sentence custody credit to offenders detained under s. 524(4) or (8) after a bail breach.
The court held that the provision engaged liberty and offended the principle of proportionality in sentencing because it made the ultimate period of incarceration depend on the offender's ability to obtain bail, a factor irrelevant to a fit sentence.
The court rejected the Crown's position that gross disproportionality was the governing standard, relied on appellate authority recognizing proportionality in sentencing as a principle of fundamental justice, and found the provision arbitrary in its operation.
Applying s. 1, the court held the provision was not rationally connected in a constitutionally sufficient way, did not minimally impair liberty, and produced deleterious effects outweighing any benefits.
The impugned words were declared of no force and effect to the extent they barred enhanced credit for detention under s. 524(4) or (8), and the applicant was not precluded from seeking enhanced credit for all pre-sentence custody.
