Truth in Sentencing: Another Conservative loss at the Supreme Court

Today the Supreme Court of Canada released judgement in R. v. Summers - a decision which deals the Conservative government yet another legal defeat.

The Summers case was the first opportunity for the countries highest court to pass judgement on Bill C-25 -Truth in Sentencing Act.  This act imposes strict limits on the amount of credit that an offender can receive for time spent in jail before a verdict (also known as ‘pre-sentence’ custody).

Under C-25, any credit for pre-sentence custody is limited to a maximum of one day for each day spent in custody. The legislation also provides that, if “circumstances” justify it, a modest enhanced credit of one and one-half days for each day spent in custody may be granted.

The narrow issue before the Supreme Court was the meaning of the term “circumstances” and whether the lost opportunity for early release and parole in pre-sentence detention can be such a circumstance, capable of justifying enhanced credit at a rate of 1.5:1

This is an important issues as the time spent in jail prior to a conviction is not taken into account when calculating parole eligibility. This means that an offender who is detained in custody before being found guilty will ultimately serve more time in jail than someone given the same sentence who is released on bail.

As I wrote early this year of iPolitics: Under C-25, in other words, the poor end up being punished more harshly than the rich. C-25 promotes the type of equality and fairness Anatole France had in mind when he said: “The law, in all its majestic equality, forbids the rich as well as the poor to sleep under bridges on rainy nights, to beg on the streets and to steal bread.”

The government's arguments before the Supreme Court urged a restrictive and potential unjust interpretation of C-25 - an interpretation the Court soundly rejected:

Aboriginal people are more likely to be denied bail, and make up a disproportionate share of the population in remand custody. A system that results in consistently longer, harsher sentences for vulnerable members of society, not based on the wrongfulness of their conduct but because of their isolation and inability to pay, can hardly be said to be assigning sentences in line with the principles of parity and proportionality.  Accounting for loss of early release eligibility through enhanced credit responds to this concern.

In rejecting the government's argument the Court further commented that their argument was in conflict with the principles of the criminal code, well-established practice, prior Supreme Court jurisprudence and was simply not plausible:

Such an interpretation would result in sentences inconsistent with the Code’s own statement of principles, and would presume that the legislature intended to abolish the quantitative rationale for enhanced credit — that offenders should not be punished more severely because they were not released on bail — without clear language.  And this despite the well-established practice, endorsed by this Court in Wust in the year 2000, that enhanced credit can be justified based upon the loss of eligibility for parole and early release.  Such a conclusion is not plausible.

The Supreme Courts decision should surprise no one.

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 blind ideological legislation.

I testified before the Standing Senate Committee on Legal and Constitutional Affairs when the Senate considered the bill C-25 - suffice it to say that I did not support the legislation.

It is also quite telling that even David Daubney, a senior policy advisor in the Department of Justice and a drafter of the bill, testified that he did not dispute the evidence undermining C-25 (that evidence can be found here).

C-25 is the work of a government pursuing a reckless approach to criminal justice. Worse, the government seems to be quite aware of this. Mr. Daubney candidly told Parliament that:

“Frankly, (C-25’s) impact will be that courts trying to do justice will find that in many cases the circumstances (of pre-sentence custody) do justify (enhanced credit), but we’ll have to see how that plays out.

Which is exactly what happened. Every level of court — and now the Supreme Court — interpreted the restrictive provisions of C-25 as broadly as possible in an attempt to avoid unfairness … just as Mr. Daubney predicted.

C-25 is yet another example of costly and necessary litigation born from ideology and ignorance. 

Fortunately courts are a crucible designed to reveal truth - perhaps this is why Conservative criminal justice policy has repeatedly failed to passed the test.