Unpacking the Implications of Remand Time Constituting Punishment

Abstract

For state conduct to constitute “punishment,” it must be a “consequence of conviction” that either furthers the “purpose and principles of sentencing” or qualifies as a “significant deprivation” of an individual’s liberty or security interests. The common practice of deeming time served in remand punishment is inconsistent with this definition. This follows because the consequence is incurred for reasons relating to bail, not conviction. The definition of punishment should therefore be broadened to include any consequence of being charged with an offence. Insisting that sanctions be imposed (or deemed imposed) in furtherance of the purpose and principles of punishment would ensure that this modification of the definition of punishment will not lead to unprincipled results. Bringing remand time within the constitutional definition of punishment would also lend the practice to a more determinate method for assessing the appropriate remedy for offenders who endure undue time on remand. If the time served constitutes grossly disproportionate punishment, I contend that a stay of proceedings ought to follow. In cases where the impugned deprivation of liberty occurred before a guilty verdict, however, a similar analysis can occur under the “treatment” prong of section 12 of the Canadian Charter of Rights and Freedoms. Time served on remand that is not grossly disproportionate might nevertheless still be incurred due to a breach of the accused’s right to reasonable bail. In these circumstances, I maintain that a monetary remedy will be appropriate absent evidence of serious systemic failures in providing reasonable access to bail.