(An edited version of this post, originally published here, is now located on Re-View From the Bench.)
On Friday, the Supreme Court of Canada released its decisions in a trilogy of cases (Summers, Carvery and Clarke) dealing with the Harper government’s Truth in Sentencing Act (TISA) passed in 2009 as part of the government’s tough on crime agenda. On Saturday, a Toronto Star headline proclaimed, “Tories’ ‘tough-on-crime’ law set back,” and another in the Globe and Mail said, “SCOC deals another blow to Harper.” The Star sub-head teaser read, “Supreme Court restores credit for pretrial jail time in latest blow to Conservatives,” and the Globe sub-headline proclaimed, “Canada’s top court squashes Conservative government’s attempt to do away with extra credit for prisoners for time served before trial.” This is a striking example of how headlines and summaries may misrepresent what actually goes on in the criminal courts of Canada, including in the Supreme Court.
WHAT ACTUALLY HAPPENED IN THESE CASES IS ANOTHER STORY, much more nuanced and less “anti-government” than the newspapers imply. In these appeals, the constitutionality of the sections was not questioned and the Supremes did not need to address that issue. They certainly did not “squash” the amendments. Instead they interpreted them to make them work. In my view, the federal government in these most recent cases lost the skirmish but won the war.
In 2000, the Supreme Court upheld the discretion of judges to give pre-sentence credit at 2:1, or even 3:1, to persons denied bail and detained in custody pending trial. WHY THIS ENHANCED CREDIT? Two reasons:
♦ The corrections regime applicable to most inmates in federal prisons and provincial jails does not count time spent in pre-trial detention in calculating eligibility for parole and early release; and
♦ Remand jails do not give educational or rehabilitation programs available in long-term jails, and often are beset with unusually onerous conditions (overcrowding, triple bunking, constant inmate turnover, multiple security lock-downs).
The Criminal Code recognized the practice of awarding enhanced credit with no limitations on judicial discretion until the 2009 amendments.
With the qualification discussed here, these most recent cases are THE SUPREME COURT’S STAMP OF APPROVAL on the Harper government’s capping judicial discretion at a maximum augmented credit of 1.5:1. This is a significant limit; a big change that dramatically reduces the discretion of judges. The Court also sets out an analytical framework that judges must apply in dealing with the issue. It confirms that the onus is on the defence to claim the enhanced credit (which it admits need not be difficult), that the new amendments apply to all persons charged after the legislation became effective (even if the alleged offence occurred before), and that judges can still deny enhanced credit in appropriate cases where an accused is shown to have been gaming the system or would clearly not be eligible for parole or early release in any event. These are real changes in Canadian criminal law, clearly furthering the law-and-order goals of the Harper government.
TWO OF THE THREE CASES WERE CROWN APPEALS ON A NARROW ISSUE: the correct meaning of the newly enacted s. 719(3) and s. 719(3.1) of the Criminal Code. No one disputed the new general rule limiting credit for pre-trial custody “to a maximum of one day for each day spent in custody” (a 1:1 credit). AT ISSUE WAS THE MEANING OF THE EXCEPTION: “if circumstances justify it, the maximum is one and one-half days for each day” (a 1.5:1 cap on credit). The issue was the meaning of “circumstances” justifying enhanced credit. The debate was about an extra half day of augmented credit the government conceded judges may award, “if circumstances justify.”
THE LOWER COURTS IN ONTARIO AND NOVA SCOTIA had held that the statutory corrections regime for calculating parole and early release beginning when sentence is imposed is a circumstance which warranted the 1.5:1 credit. Any other interpretation would mean that persons detained in custody pending trial would serve longer sentences than would persons convicted of similar offences who had been released on bail. Ontario and Nova Scotia Courts of Appeal took the same position. The crown disagreed, arguing that “circumstances” suggests facts particular to an accused and not universal consequences inherent in the statutory regime. The Supreme Court sided with the lower and Appeal courts on the issue. In doing so, they taught the Harper government yet another lesson in how Canadian law operates.
THE WORDING OF THE AMENDMENTS IS AWKWARD AND CONVOLUTED. The government may have wanted a 1:1 cap as the general rule with enhanced credit the exception. The Supreme Court, in a unanimous 7-0 decision, made it clear, however, that the 1.5:1 cap was to be of general application (with the specified exceptions) so long as the statutory corrections regime for parole and early release remained as it is. Unless the government amends the corrections regime, most people detained in pretrial custody will be eligible for the augmented extra half day credit.
In interpreting the amendments as they did, the SUPREME COURT REAFFIRMED THE FUNDAMENTAL PRINCIPLES OF SENTENCING set out in s. 718, 718.1 and 718.2 of the Criminal Code. These require that:
♦ “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender,” and that
♦ “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”
As Justice Karakatsanis wrote:
♦ “a rule that creates structural differences in sentences, based on criteria irrelevant to sentencing, is inconsistent with the principle of parity.”
♦ And proportionality is not promoted “when the length of incarceration is a product of the offender’s ability to obtain bail, which is frequently dependent on totally different criteria.”
She noted that poor people, aboriginal people, and those without families or friends to provide support and post bail, are disproportionately detained for economic reasons unrelated to the actual offences they are alleged to have committed.
In my view, THIS INTERPRETATION IS THE OBVIOUS RESULT required by the context and by the principles of sentencing. This was the view of the lower courts and the Courts of Appeal. Parity and proportionality are fundamental values of our criminal justice system; even in the narrow issue of an extra half day’s augmented credit, they are principles that must be respected. Judicial discretion may have been sharply reduced, augmented credit at 2:1 or 3:1 may have gone the way of the dodo, but at least these principles have been preserved. On balance, however, it strikes me that the Harper government won this one.
By the way, according to Statistics Canada, in 2009/2010 (the latest date from which statistics are available), there were, on average, about 13,600 ADULTS ON REMAND EACH DAY IN CANADIAN JAILS (excluding Nunavut). There has also been a shift in who makes up the custodial population. In 2009/2010, adults on remand accounted for 58% of the custodial population while those serving sentence comprised 42%; ten years earlier, proportions were reversed, at 40% and 60% respectively. These are shocking statistics. Why so many people presumed innocent are detained on remand is an issue for another day.