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Manitoba judge defies feds' sentencing law

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Another key measure the federal government brought in as part of an agenda to toughen criminal sentences has been dealt a major blow, this time in Manitoba's provincial court.

Preventing offenders who are denied bail because they have criminal records from asking for extra credit for time spent behind bars awaiting trial is a serious hit to their fundamental charter right to life, liberty and security of the person, Judge Mary Kate Harvie ruled Wednesday.

List of break-ins long

Gordon Kovitch pleaded guilty to 15 break-and-enter crimes that occured in a span of more than two years. Here are the facts behind four of them.

Dec. 20, 2010 -- Kovitch hid out inside a Zellers store on Henderson Highway, waited for the staff to leave for the night and stole jewelry the Crown says was worth $42,000. He wasn't identified right away as the suspect. He said he got about $1,500 for the haul and used the money to feed an Oxycodone addiction.
June 9, 2011 -- Kovitch hid out inside a Sears store at Kildonan Place, waited for staff to leave, then stole jewelry worth $20,883.
June 19, 2011 -- Kovitch and another suspect smashed the window of a Sears store in Garden City, entered, stole $32,696 in jewelry but dropped the loot as they fled. Kovitch's DNA was found on gloves at the scene.
May 12, 2012 -- Kovitch and a youth co-accused broke into the Duckworth Centre at the University of Winnipeg and ransacked about a dozen offices for electronics.

Harvie's ruling means serial break-and-enter offender Gordon Kovitch will be allowed to ask her for "enhanced credit" for part of the 18 months he's spent behind bars awaiting the outcome of his case.

It is only a right to ask, and Harvie has not determined whether he will receive such a bonus subtracted from his prison sentence. The onus is on Kovitch to prove he's worthy of the benefit.

The Crown is seeking a sentence of up to seven years in prison for the 23-year-old. Defence lawyer Karl Gowenlock will ask for four years minus 26 months of credit for pre-sentence time served.

Federal legislation in February 2010 curtailed judges' discretionary sentencing and abolished the discretionary practice of handing offenders a two-for-one credit for pre-trial custody.

Judges must now allow a maximum remand credit of 1.5 days to one, and then only under "exceptional circumstances."

The law prohibits allowing remand-time credit for offenders who are denied bail due to their criminal past, the issue Harvie was dealing with.

The law, Section 719 (3.1) of the Criminal Code, creates "gross disproportionality" between individual offenders at sentencing, because those denied bail can wind up spending "significantly" more time in jail than others, contrary to fundamental justice, Harvie states in her 24-page decision.

"The denial of an accused bail 'primarily because of a previous conviction' impacts directly on the discretion afforded a sentencing judge when considering an application for enhanced credit for time spent in custody," Harvie wrote.

"The principles of sentencing are well recognized and do not include a consideration of an offender's bail status. The practical application of this provision means an offender's criminal record acts as a form of double jeopardy, and precludes an appropriate assessment of (pre-sentence custody)," she wrote.

It was Gowenlock who challenged the federal law for the first time in Manitoba, describing it as "fundamentally unfair." A justice system viewed as unfair won't retain the confidence and respect of the public, he told the Free Press.

Harvie's decision is not binding, but lawyers can use it before judges at future hearings.

It's expected the Crown will take the ruling to the Manitoba Court of Appeal. That sets the stage for a drawn-out legal battle that could result in Harvie's decision becoming law in the province. The case could wind up in the Supreme Court.

The ruling comes at a time when Ottawa's mandatory minimum-sentence provisions are about to undergo intense legal scrutiny in the Appeal Court following two decisions that saw them overturned by two judges in Manitoba Court of Queen's Bench.

Bryce McMillan and Mario Adamo recently escaped years-long mandatory prison terms after their sentencing judges found the compulsory sentences for gun-related crimes were unconstitutional.

james.turner@freepress.mb.ca

Republished from the Winnipeg Free Press print edition December 12, 2013 A9

History

Updated on Thursday, December 12, 2013 at 11:09 AM CST: Court decision document added.

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