The sentencing decision in a high-profile arson case may provide guidance on what kind of credit the court should give when a defendant is on strict bail conditions for a lengthy period awaiting trial.
Ontario Superior Court Justice Todd Ducharme indicated he’d address the rarely adjudicated issue when he sentences Toronto businessman John Magno on Sept. 23.
This summer, a jury convicted Magno, 53, of manslaughter and orchestrating a plot to burn down the family’s building supply store in Toronto’s east end.
Magno originally faced a charge of second-degree murder in the death of an accomplice who died on Christmas Eve in 2001 while setting the Woodbine Building Supply store on fire.
The fire, one of the largest in Toronto’s history, required the services of more than 170 firefighters and forced the evacuation of 50 homes in the area.
The trial didn’t begin until nine years after the fire as co-accused were tried first and Magno fought a lengthy and unsuccessful legal battle related to the provisions for unlawful act murder in the Criminal Code.
During arguments at the sentencing hearing last month, defence lawyer Marie Henein suggested her client should get “substantial credit” for the six years that bail conditions were similar to those of house arrest.
Crown attorney Anna Tenhouse is seeking a 10-year sentence for Magno. She agreed he should receive “some credit” for his pretrial bail but only for the part related to the first two years when the conditions also restricted his ability to work.
A variation in 2004 permitted Magno to assist his brother in the construction of a residence.
Both the Crown and defence pointed to a 2006 decision by the Ontario Court of Appeal in
R v. Downes in their submissions. “There is not a lot of law in this area,” noted Henein.
The decision written by Justice Marc Rosenberg reduced the sentence by five months for the 18 months of house arrest pretrial bail imposed on a defendant with a lengthy criminal record in a domestic violence case.
“Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence,” wrote Rosenberg.
The Court of Appeal stressed that there should be no set formula but said it would be an “error in principle” if the sentencing judge didn’t address whether to give credit for pretrial bail that was similar to house arrest. The court added that the onus was on the offender to inform the court about the impact of the bail conditions.
The court relaxed the bail conditions on Magno in 2007, but Henein argued that several years with any kind of restriction should also be a factor on sentencing. “It is more onerous the longer you spend on bail,” she said.
“I am not going to give him any credit for standard bail conditions,” Ducharme responded at the sentencing hearing.
Magno should receive at least four years’ credit for the more than nine years he was on bail awaiting trial, Henein argued.
She noted that unlike in Downes, her client has no prior criminal record and has been a productive member of society while on bail, including by making donations to charities.
Henein pointed to a 2008 ruling by Superior Court Justice Gary Trotter in
R v. Kelsy. In that case, the court gave credit on sentence for significant efforts at rehabilitation by the offender while observing strict and lengthy pretrial bail conditions.
While Magno continues to maintain his innocence, Ducharme indicated he didn’t think Kelsy applied in this case. “With the greatest of respect to Justice Trotter, I don’t think it is of much assistance to me,” said Ducharme.
