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Winnipeg Free Press - PRINT EDITION

Thug's custody break reversed

By: Mike McIntyre

Posted: 12/15/2012 1:00 AM | Comments: 0

A potentially precedent-setting decision that appeared to defy new federal law has been overturned by Manitoba's highest court.

Shannon Stonefish, 29, was convicted last year of possession of cocaine for the purpose of trafficking. Provincial court Judge Lee Ann Martin sentenced him to 71/2 months in custody in addition to 11 months of time already served. But Martin gave Stonefish 1.5-to-1 credit for that pretrial custody, bumping it up to 161/2 months, for a total sentence on paper of two years.

The Crown filed an immediate appeal, expressing concern about the message Martin had sent and what it could mean for other high-risk criminals such as Stonefish. The appeal was believed to be the first of its kind in Canada since the Conservative government announced sweeping changes on how judges should treat time already served in custody.

"This decision ignored Parliament's clear intent to limit credit for pre-sentence custody," then-Crown attorney Chris Mainella said in court documents outlining his objections. "The decision undermines confidence in the administration of justice because it was not transparent: The sentencing judge failed to adequately explain why the accused should receive the benefit of enhanced credit."

In a decision released this week, the Manitoba Court of Appeal agreed. The high court has ruled there was no justification for such a move, especially as Stonefish has a record that includes 22 prior convictions -- including three for drug-trafficking. Stonefish was on bail for drug charges at the time of his 2010 arrest and continued to wreak havoc while in custody, including participating in the gang-related beating of another man.

"Given the accused's conduct while on remand, including the disciplinary infraction for assaulting another inmate and the lack of participation in programming without treatment, I would not award the enhanced credit," Justice Freda Steel wrote in the 40-page decision.

The Crown relied on section 719 of the Criminal Code in which the federal government set strict guidelines in 2010 for when judges could depart from the normal practice of giving straight credit for pretrial custody. The Conservatives ruled that judges could no longer give two-for-one credit, as had become the practice in Canada. Instead, the maximum allowed would be 1.5-to-1 credit, but only if the offender met certain conditions.

Justice Minister Rob Nicholson said at the time that no change in the one-to-one ratio will be allowed under any circumstances for people who have violated bail conditions or have been denied bail due to their criminal record.

Mainella said that should have disqualified Stonefish because he was clearly violating bail when arrested in the current case.

www.mikeoncrime.com

Republished from the Winnipeg Free Press print edition December 15, 2012 A12

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