NWT judge takes aim at Truth in Sentencing provisions

Sentencing rules restricting the credit a criminal can receive for time spent on remand are unconstitutional, a Northwest Territories judge has found.

The March 13 decision  by Justice Garth Malakoe of the Territorial Court of the Northwest Territories challenges 2010 rules brought in under the Truth in Sentencing Act.

The act changed the Criminal Code, limiting judges’ ability to reduce custodial sentences by taking into account time spent on remand.

Traditionally, judges gave “credit” for pre-sentence custody on a 2-1 basis, meaning each day spent on remand was considered equal to two days of post-sentence custody. This was because remand time is usually less comfortable than custodial jail time, with little or no access to exercise facilities, rehabilitation programs, or parole.

The act directed judges to provide a maximum of one day’s credit for each day of pre-sentence custody. This can be increased to 1.5 days “if circumstances justify it,” unless a person is detained pre-sentence because of his or her criminal record, or due to criminal behaviour while on bail.

In R. v. Shayne Beck, Malakoe found the provision restricting credit for time already spent in custody to be unconstitutional. He gave Beck 621 days credit for the 414 days he spent in pre-sentence custody after breaking and entering into a house and committing robbery.

His resulting sentence was 474 days in custody instead of 681 days.

Malakoe agreed with the applicant’s argument that the s. 719(3.1) of the Criminal Code “pressured” accused persons not to exercise their right to a bail hearing.

The provision allows for enhanced credit if the circumstances allow it “unless the reason for detaining the person in custody was stated in the record.”

Summarizing the applicant’s position, the decision states: “If that person seeks bail and is denied bail because of his criminal record, he could receive less credit for his pre-sentence custody than if he had simply consented to his custody.”

The rules also punish the person twice for a crime they have already served time for, the decision says.

Malakoe called the 681-day sentence “grossly disproportionate.”

He wrote: “He is receiving a sentence which is 208 days longer, not because of any valid purpose, principle of objective of sentencing. He is receiving a sentence because he chose to exercise his right to a show cause hearing and was denied bail because of his criminal record.”

The Crown argued the rules aimed to address “over-compensation” for pre-sentence custody in an effort to maintain the public’s confidence in the administration of justice; promote the rehabilitative principles of sentencing, and prevent overcrowding in remand centres.

But Malakoe said the Crown had presented insufficient evidence that the public’s confidence had been dented or that sentences were not already based on rehabilitative principles.

He said: “As a statutory court, I do not have the jurisdiction to make a general declaration with respect to the constitutionality of the impugned portion; however, it is clear that I cannot apply a law which I find to be unconstitutional.”

The decision follows similar rulings in other provinces dealing with the Truth in Sentencing Act, including Ontario, Nova Scotia, Manitoba, and Quebec. A Supreme Court of Canada decision is also pending on the circumstances in which enhanced credit can be justified.

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