Enhanced pre-trial custody credit as remedy for Charter Breach


When a court has determined that an accused person’s Charter rights have been breached the Judge have to decide whether or not a remedy is appropriate pursuant to s. 24(2) of the Charter. The right to grant a remedy is discretionary (a Judge could establish that a Charter appropriate was in reality breached but not grant a remedy). In circumstances where proof was gathered as a outcome of a breach (such as evidence discovered in an unlawful search or statements created with no offering one’s rights to counsel), a court will often make a decision to exclude proof that flowed from the breach. In other circumstances, a keep of all proceedings may possibly be the only suitable remedy. Such circumstances where a keep may be ordered incorporate these of unreasonable delay pursuant to s. 11(b) or a search of one’s particular person that oversteps what is appropriate.

In R. v. Rashid, the Court of Appeal refused leave to appeal the decision of a summary conviction appeal court which upheld the selection of a trial judge who, as an alternative of granting a stay, awarded an accused 4 for 1 credit for two days spent in custody as a result of the breach. The trial judge identified a breach as the accused was not released from custody on a domestic related incident from the police station but rather held for a show-result in hearing pursuant to policy. Such policies are frequent for domestic violence circumstances (this is really a contentious situation) but, as was held by the trial judge, in violation of s. 498 of the Criminal Code as the policy takes away statutory discretion supplied to the police to release the accused without holding them for bail. As a result, the trial judge found the accused to have been arbitrarily detained resulting in a s. 9 Charter breach. As a Toronto Criminal Lawyer, I do not believe the trial judge was holding that the officer would have been incorrect had the officer exercised their discretion and held the accused for bail, but that the policy preventing discretion resulted in the breach.

It is worth noting that the Crown did not appeal the finding of a breach nor did an appeal court rule on this aspect of the decision (therefore there is no binding precedent that the operation of such policies result in a breach, nonetheless the case itself could still be utilised as persuasive argument).

The main goal of the appeal was the awarding of the four for 1 credit as opposed to granting a stay. The accused was discovered guilty at trial and sentenced to an intermittent jail sentence that took into account the equivalent of eight days in custody (two days of actual time multiplied by 4). Essentially, the trial judge discovered that the suitable remedy to address the breach was this sophisticated credit. The Ontario Court of Appeal explained:
The trial judge in this case applied the proper legal principles and exercised his discretion to craft a remedy that appropriately addressed the circumstances of the breaches and the public and individual interests at stake. The appellant had an appeal of the remedy decision. The summary conviction appeal judge gave a detailed review of the remedy, applied the suitable legal principles and found that the trial judge’s decision and factors demonstrated a proper balancing of the seriousness of the breach, the prejudice to the appellant and the public interest. A second level appeal of this fact-distinct and discretionary remedy choice is not warranted.

Like the majority of other Charter circumstances, the remedy could not necessarily be satisfactory to an accused in itself, especially in instances exactly where they are innocent of the charges against them.