Indeed, the Bill C-35, Truth in Sentencing Act — whose very name implies criminal sentences are not what they appear — sought to reduce the amount of credit convicts were granted for time served in pre-trial custody.
Prior to the act, which came into effect in 2010, judges were given discretion in the matter and routinely provided two days credit for every one spent in custody prior to trial. Ottawa viewed this as over-generous and sought to limit judicial discretion. The new law set the standard for credit at 1:1, but offered a vaguely worded exception of 1.5:1 in “justified circumstances.”
Judges in several provinces — annoyed at the attempt to limit their discretion — have defied the new law by exploiting the loophole, suggesting nearly all circumstances justify the enhanced credit.
Ontario Court Justice Colin Westman, for example, has spoken out publicly against the new law, and Ontario Justice Melvyn Green has written that new tough-on-crime laws have cast “a dark shadow on the sentencing principles of proportionality and restraint.”
In R. v. Summers (and a companion case, R. v. Carvery), the SCC sides with the Ontario Court of Appeal’s defiant stance, agreeing that entrenched principles of justice warrant enhanced credit not only in exceptional cases — but in virtually all circumstances.
These principles take into account the math around parole eligibility, which is typically granted after two-thirds of a sentence. Under a 1:1 regime, a convict with a sentence of one year and no pre-trial custody would be out after eight months. But a convict who spends six months in pre-trial custody would be out after four months served in prison — for a total of 10 months.
This calculus means convicts who spend more time in pre-trial custody — often because they can’t afford bail or have no connections in the community — would have suffered a longer sentence under the new law.
The decision written by Justice Andromache Karakatsanis for a unanimous bench says: “A rule that results in longer sentences for offenders who do not obtain bail, compared to otherwise identical offenders is incompatible with the sentencing principles of parity and proportionality. This is particularly so, given that vulnerable and impoverished offenders are less able to access bail.”
The court defends judicial discretion while seemingly taking Ottawa to task for vague wording in that apparently uses inference rather than explicit language to institute policies that may be discriminatory (and thus subject to Charter challenge):
“It is inconceivable that Parliament intended to overturn a principled and long-standing sentencing practice, without using explicit language, by instead relying on inferences that could possibly be drawn from the order of certain provisions in the Criminal Code. . . . Neither the language of the provision nor the external evidence demonstrates a clear intention to abolish one of the principled rationales for enhanced credit.”
Josh Koziebrocki, a partner at Lerners LLP who represented the Canadian Civil Liberties Association before the court, stresses there was no Charter challenge here, but that his clients argued “the legislation should be interpreted in a manner that is in line with the principles set out in the Charter.”
“Individuals that have less financial means or fewer connections in the community are more likely not to be granted bail, more likely to remain in custody during a pre-sentence period,” says Koziebrocki. “I think that the court has recognized that, without explicit language from Parliament, offenders should not be punished more severely simply because they were not released on bail.”
While the court’s decision acknowledges that Ottawa’s amendments attempt to set an “exception” of 1.5:1, the ruling — in an amazing semantic leap — suggests exceptions need not be exceptional, particularly when more important principles are at stake:
“While s. 719(3.1) is structured as an exception to s. 719(3), there is no general rule of statutory interpretation that the circumstances falling under an exception must be numerically fewer than those falling under the general rule. Therefore, it is not a concern that most remand offenders will qualify for enhanced credit on the basis of lost eligibility for early release or parole.”
In a blog post about the decision, Ottawa criminal lawyer Michael Spratt notes: “The truth is that there is little empirical support for the government's justifications on limiting judicial discretion when it comes to to the consideration of an offenders time spent in pre-sentence custody - C-25 is yet another example [of] blind ideological legislation.”
Toronto criminal lawyer Frank Addario says the underlying issue here — aside from what constitutes reasonable credit for time served — is judicial discretion: “Judges are trained that the common law is about discretion. They are not going to give it up unless the statute is abundantly clear.”
Koziebrocki agrees, but says the new law continues to limit judicial discretion to a maximum of 1.5 days for each day in pre-trial custody. And while the 1.5:1 ratio may address the quantitative issue (that convicts not granted bail should be given the same sentence as those granted bail), it does not address the qualitative issue cited in the SCC decision —that detention facilities are typically harsher than prisons.
“The court is very clear in suggesting that 1.5:1 is not necessarily sufficient to address all of the circumstances for every offender,” he says. “There may be an offender who has a harsher pre-sentence custody, but that isn’t in the legislative framework they’re working with.”
Spratt also wrote the act is “the work of a government pursuing a reckless approach to criminal justice. Worse, the government seems to be quite aware of this.
“C-25 is yet another example of costly and necessary litigation born from ideology and ignorance."
He concludes: “Fortunately courts are a crucible designed to reveal truth — perhaps this is why Conservative criminal justice policy has repeatedly failed to passed the test.”