The Supreme Court’s recent ruling on the application of the Truth in Sentencing Actwas depicted in various media outlets as being part of a trend of recent decisions rebuffing the Conservative government’s justice agenda. While this could describe a number of recent decisions, the current ruling is more nuanced.
According to the Canadian Press:
They also represent the latest in a series of court rebukes of the Conservative government’s law-and-order agenda.
Sean Fine in the Globe and Mail likewise stated:
The Conservative government’s attempt to detain thousands of prisoners for longer periods has been blocked, in the newest in a series of crushing defeats at the Supreme Court of Canada.
As the Supreme Court decision notes, enhanced credit is often provided for accused who have been remanded in jail, and historically, there were no restrictions on the reasons for giving credit or the rate at which it was granted. A practice developed over time to grant credit at a 2:1 rate. The new Truth in Sentencing Act caps pre-sentence credit at 1.5:1, but does not discuss which circumstances justify enhanced credit.
The challenged amendments to the Criminal Code are underlined below:
(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody […]
What was contested in this case was the sentencing judge’s application of enhanced credit for pre-sentence detention. This was applied because when individuals are remanded before trial, the time they serve is not counted towards early parole. This is the “quantitative” aspect. The “qualitative” aspect described by the court is that conditions in remand tend to be much harsher than in custody, so it is fundamentally unfair not to grant extra credit for pre-trial decisions.
The Supreme Court unanimously upheld the granting of enhanced credit in these two cases at a rate of 1.5:1.
I find the conclusions of pundits on this subject are not warranted. While certainly the Harper government wishes to reduce the discretion of justices in almost every scenario, I view subsection 3.1 as an escape valve.
This legislation is ideological but it is also strategically drafted. Creating an escape clause to the general rule, while also leaving “the circumstances” undefined and ambiguous was done so that the legislation would survive a challenge. The decision discusses the need for proportionality and parity in sentencing, but devotes a large portion to the intent of Parliament. It is noted that there was clear intent to restrict the amount of pre-sentence credit; however, by refusing to define “circumstances,” the discretion was deliberately left to judges. This is confirmed by Conservative MP Russ Hiebert’s statement in the House of Commons that:
These circumstances are not defined in the bill. This is so the courts would have the discretion to consider on a case-by-case basis whether the credit to be awarded for the time spent in pre-sentencing custody should be more than one for one.
The Supreme Court agreed:
Parliament does, of course, have the power to exclude these circumstances from consideration (barring a constitutional challenge). However, it strikes me as 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.
Rather, it seems more likely that Parliament intended to do what it did explicitly. The amendments clearly impose a cap on the rate at which credit can be awarded, at 1.5:1. This is a substantial and clear departure from pre-Truth in Sentencing Act practice. Having made its intention so clear on that point, Parliament gave no indication it intended to alter the reasons for which enhanced credit can be granted.
These two paragraphs support the idea that the legislation was not accidentally ambiguous, but that this was rather a strategic choice of the drafters.
David Daubney, one of the Department of Justice lawyers who helped draft the legislation, noted in a House of Commons committee that “the circumstances” would be fairly routine:
As you know, the more common expression in the Criminal Code is “in exceptional circumstances”, but we deliberately didn’t use that here because the circumstances won’t be that exceptional; they’ll be fairly common and, in the case of the parole loss and the remission loss, will be universal.
With this legislation, the Conservatives can show to their supporters that they are passing laws that are ideologically tough on crime. At the same time, they have crafted a deliberate loophole that has helped ensure the bill’s survival.
An article in Canadian Lawyer described this shift as upholding rulings that reverse the intent of the Act, “turning the law’s standard credit for time served into the exception, and the exception into the standard.”
However, as the Supreme Court has noted, longstanding judicial custom granted sentencing guidelines at a rate of 2:1. Now, the legislated cap has reduced this convention by 25 per cent.
This was not a striking blow, but a calculated ploy by the government to appease both the judiciary and the Conservative fan base. So far, it appears to be working.