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The real truth in sentencing

Legal Report: Forensics & Criminal Law
|Written By Gretchen Drummie
The real truth in sentencing
Illustration: Kim Rosen

When Marvin Johnson sold $20 worth of cocaine to an undercover Toronto police officer on Feb. 26, 2010, he probably didn’t realize his case would become the first word from Canada’s courts upholding the constitutionality of a key plank in Prime Minister Stephen Harper’s tough-on-crime initiatives. Nor could it have been predicted the same decision would also be lauded by the country’s defence bar as a clever path of breadcrumbs around the newly minted sentencing law.

With the Tory government’s Truth in Sentencing Act, it was thought the de facto practice of awarding enhanced credit in all but a few cases had been eliminated. But, in R. v. Johnson, Ontario Court Justice Melvyn Green said while the new law is constitutional, judges should, instead of applying the old system of determining if credit is due for pretrial custody, use their discretion to reduce the overall sentences to reflect harsh conditions in remand centres. The judgment also takes into account parole, math the government’s new law didn’t, which makes Green’s way “much more truthful,” says Toronto criminal lawyer Gregory Lafontaine.

Johnson could very easily become the leading decision interpreting where the truth lies in Canadian sentencing law. It’s instantly become the focus of sentencing submissions in the early weeks. The test will be whether it ends up being generally adopted by judges of trial courts across the country,” says Lafontaine. “It’s either going to carry the day or will, at least, serve to bring the issue to a head. I expect that Johnson will not sit well with some of the more conservative thinkers among the judiciary. You could well get a competing thesis from another jurist. Johnson is definitely going to serve as a magnet, a lightning rod, the starting point. . . . It is ‘the’ case.”

Just four days before Johnson’s arrest, the Criminal Code amendments came into force. That meant if the 40-year-old had been collared prior to Feb. 22, 2010, he would have been sentenced under the regime that saw Canadian courts routinely deliver two-for-one, and sometimes three-for-one credit for pretrial custody. Now Johnson, who consented to his detention and on May 4, 2010 pleaded guilty to trafficking cocaine, faced sentencing under new rules that limited his so-called dead time to one day for each day served, or “if the circumstances justify it,” 1.5 days of credit for one day of pre-sentence custody.

Typically since the new law, Canadian judges have been meting out one-for-one credit, say lawyers, leaving the “if circumstances justify it” clause open for interpretation for use in rare instances, and certainly not across the board. In other words, like the rest of his peers this past year, Johnson was facing only one-for-one credit and a look at doing significantly more time in custody.

Enter Corbin Cawkell and Kristin Bailey of Hicks Adams LLP in Toronto, who launched a constitutional attack on the Truth in Sentencing Act, arguing it infringes on Johnson’s Charter rights. On Feb. 23, Green dismissed Johnson’s challenge finding no Charter breach, mainly because the 1.5 credit may be given. But here’s the rub: Green’s ruling is also interpreted as setting a precedent that could ultimately make 1.5 credit the new normal, rather than the exception. In other words, Green said the circumstances don’t have to be that exceptional for 1.5 to be awarded, and the focus should be on how unfair it is that the opportunity exists for two people with the same cases to be treated differently. Asked Green: “Why should accused persons denied bail end up serving longer global periods of incarceration than those released pending their trials?”

“I’m hoping [the decision] will change sentencing across Canada,” Cawkell told the Canadian Press after the decision. That remains to be seen, as the first wave of individuals who’ve served significant dead time under the new law are now coming before the courts for sentencing. Lafontaine says while Green’s decision isn’t binding, it could prove to be persuasive in the courts. He predicts as the issue surfaces in courts of all levels, defence lawyers will rely heavily on Green’s decision. But it’s not a slam dunk that the jurists will follow lockstep, and in fact, some aren’t. Lafontaine says reports from the courts so far show mixed reaction. “The dust will settle . . . with time,” he says.

“The truth in sentencing legislation is actually very dishonest and terribly unfair,” says Lafontaine. “The underlying math is bad because effectively as Justice Green says, almost everyone will be released after two-thirds of their full sentence. This is different than parole. In the United States, the portion of the sentence actually served is somewhat longer, but the same practice is followed — there is statutorily contemplated early release. If credit is given on the so-called one-for-one basis, the real, honest truth is that the credit is far less than one-for-one. It’s more like two-for-three credit. At the end of the day, someone receiving three years’ credit for three years of pretrial custody cannot be said to have served the equivalent of a three-year sentence. A three-year sentence for someone who had been on bail involves almost certain release by the two-year mark. The person who served the time at the front end has spent one year more in jail than the person who was released on bail. So that’s not truth, that’s distortion in sentencing.”

Paul Burstein, president of the Ontario Criminal Lawyers’ Association, says Green’s decision is a “very well-reasoned and extensive review of the relevant evidence, the social science evidence, the modern realities of sentencing. It’s very practical, it obviously reflects a great deal of thought in terms of how the new legislation relates to long-standing sentencing practices and it’s made by a judge who has extensive experience in criminal law, so it certainly has a healthy mix of both pragmatism and jurisprudential reality.”

He agrees that lawyers across the country can look to it for guidance. But, he notes, there are still other issues arising from the legislation to shake down, including that the new law says if someone is detained at their bail hearing because of their criminal record, they are not entitled to more than one-for-one credit at sentencing. “The question is whether a [justice of the peace’s] determination should be allowed to bind a sentencing judge,” says Burstein. Further, judges may say lawyers can’t argue before them that the JP was wrong because it’s a collateral attack, and would have to be done by way of an appeal, but there’s no right to review a Criminal Code s. 515(9.1) finding, he says.

He adds that even if an accused consents to detention because they don’t have a surety and the Crown agrees but wants the endorsement to read that it was primarily because of his criminal record, he’d only be entitled to one-for-one pretrial credit. “So now we’re going to have a bail hearing, even though my client has no intention of seeking release, just to determine whether the reason for detention is 9.1 primarily because of a criminal record. So, in a busy bail court, where they have 50 bail hearings to get through, I’m going to suck up an hour or two of that precious time just so that we can litigate that issue as opposed to letting the Crown make that argument at the sentencing hearing.”

Lafontaine says Green’s ruling “permits more flexibility and arguably more leniency by the way it’s interpreted the legislation, which is more truthful. Justice Green has a great deal of credibility. He is a highly respected judge. . . . His analysis is extensive, it’s compelling, it’s very tight in terms of having legal justification for everything that is said. I think it’s going to end up being adopted by many judges.” Lawyers across the country can look to it “because they can say, ‘It’s a great interpretive aid in terms of how you look at this new section.’ There isn’t a lot of jurisprudence in existence that includes an extensive analysis of the new law. Justice Green addresses the constitutional issues and performs an extensive interpretation of the statute. His interpretation is the only one in Canada at present where all the legal legwork has been done; the heavy lifting of doing all the research and then crafting together a well-reasoned, intelligent, articulate, easy-to-understand guide of the section.”

Lafontaine predicts Johnson will be “widely relied upon because sentencing hearings are one of the bread-and-butter aspects of the work of criminal lawyers. There are countless sentencing hearings every day and many, many of those hearings involve a consideration of pretrial custody. Judges are already being asked to interpret the new provisions and Johnson is going to be passed up to the dais all over the country, literally as often as thousands of times a week.”

The bottom line, says Lafontaine: “The judiciary traditionally awarded enhanced credit to ensure that one day in pretrial custody equaled a day spent serving a sentence. To have any hope of achieving that equality, a day in pretrial custody must, at the least, be counted as 1.5 days. Johnson serves as a new source of hope that there can once again be both truth and fairness in sentencing.”

And what of Johnson? He was sentenced to 18 months in jail, and factoring in the 1.5 credit, was ordered released the next day.

  • RE: The real truth in sentencing

    Stephanie Heyens
    And the defence bar continues to be shocked at its "colleagues" who don't understand that enhanced credit for pretrial custody is only fair because pretrial custody is not eligible for parole or remission.

    Why?

    Because the guy who pleads guilty the day after arrest and gets a 3 month sentence gets out after 2 months. The guy who has to wait 3 months for a trial is convicted and gets a 3 month "time served" sentence does the full 3 months - an in harsher conditions!

    This is why many of us at the defence bar believe the true function of s.719(3.1) is to encourage more pleas - in a system where only 5% of cases go to trial.
  • Richard Sage
    Let’s see … a judge attempts to circumvent the intent of parliament (an intent that even the judge acknowledges is constitutionally valid) and is cheered on by the defense bar because his ruling will give their clients (i.e. criminals) less jail-time … and yet the bar and bench continue to wonder why the public sees them as part of the problem?

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