Ruchira Uday Kulkarni

The Crown appealed a trial judge's declaration that section 719(3.1) of the Criminal Code, specifically the "bail misconduct exclusion," was unconstitutional.

The bail misconduct exclusion restricts pre-sentence custody credit to 1:1 (rather than the enhanced 1.5:1 credit) where an accused's bail was cancelled due to alleged misconduct while on release.

The Court of Appeal upheld the trial judge's finding that the provision violates section 7 of the Charter as overbroad.

The court found that the legislative purpose of the bail misconduct exclusion—to deter misconduct while on release—is not rationally connected to all of its impacts, particularly where individuals are punished for alleged (rather than proven) misconduct, or where detention results from inability to satisfy a reverse onus rather than actual misconduct.

The applicants, Greg Guthrie and Delon Griffith, sought an order for severance of charges in a multi-count indictment related to cocaine importation and conspiracy.

Guthrie applied to be tried separately on counts one and four from counts two and three, while Griffith sought to sever counts two and three from counts one and four.

The court considered the legal and factual nexus between the counts, the applicants' intention to testify on some counts but not others, and potential prejudice.

The court found a sufficient factual and legal nexus, concluding that the Crown's theory of an ongoing enterprise was reasonable.

It dismissed concerns about testimonial intention and prejudice, emphasizing that a properly instructed jury could consider each count separately.

Both severance applications were dismissed.