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The Defence Group’s managing director, Arun S. Maini, was recently interviewed by the Kitchener-Waterloo Record newspaper about a major showdown between the government and the courts on their “tough-on-crime” agenda (click here for the link to the article).

The first tests of the Conservative government’s reforms to criminal law are winding their way towards the Supreme Court of Canada. One major change, which became law on February 22, 2010, made it illegal for a court to give the customary 2:1 credit for time spent in pre-trial custody, which had been the rule for many years. Pre-trial credit is now to be on a 1:1 basis, unless circumstances warrant 1.5:1. We wrote about this some time ago in our blog “Hard Time: A Major Change to Sentencing Law in Canada” (click here to read the blog).

The reason that convicted offenders were given credit for time in custody served before trial was that people in pre-trial custody do not have their time calculated towards their release date on parole or remission. Also, their access to rehabilitative programs is severely limited; and their living conditions are atrocious, in some cases almost “medieval” when one considers the overcrowding, institutional abuse, and inmate violence. Judges tried to recognize this by granting credit for pre-trial custody on a 2:1 basis.

This 2:1 approach worked for decades, but recently judges had decried the worsening conditions in jails and detention centres by awarding even higher ratios of pre-trial credit, at 3:1 or even 4:1. It did not take long for this practice to catch the attention of the hardliners in government who refuse to accept statistics showing that crime rates in Canada have been falling for years, and want to please voters by cracking down on criminals.

The result was Bill C-25, the Truth in Sentencing Act.

The old rule of thumb of 2 for 1 credit is gone forever, replaced with the new maximum of 1.5:1. But when can the enhanced 1.5:1 credit be given? Do the circumstances have to be “exceptional”?

The courts have wrestled with this issue when sentencing offenders. There has been tension recently between the longstanding tradition in Canadian law of recognizing that judges are in the best position to sentence an individual for a crime, and the government’s desire to have some uniformity across the board and some control over the outcomes. Under the Charter of Rights, and the principles of sentencing in the Criminal Code, a sentence is to be based on the circumstances of the offence and the offender. However, the government wants to win votes by getting tough on crime, and they believe sentences are eroded by conditional sentences; sentences they see as being too lenient; and early release for offenders.

To reclaim this territory from the courts, the current federal government (under the Constitution, the federal government controls the criminal law) has sharply reduced the availability of conditional sentences, which enabled offenders who were no otherwise dangerous, to serve their sentences in the community under house arrest, rather than filling up already overcrowded and expensive jails.

The government has also imposed a series of mandatory minimum sentences, which tie the hands of judges and dictate to them the baseline for the sentence to be imposed in certain cases. This has never been the Canadian way; the US has long had a “grid” for sentencing people which tends to reduce individuals to a number to be automatically applied in a “cut and paste” manner. Canada has always had a more enlightened and humane approach to sentencing, at least until the current government came into power.

And the final piece of this “law-and-order” agenda was the move to cap pre-trial custody credit.

These moves by the government have set the stage for a showdown between the courts, who champion the supremacy of the constitution and judicial independence, and the present Conservative government, which sees such fundamental principles as obstacles to the entrenchment of their personal values and the will of the majority.

One contest that is making its way to the Supreme Court is over Parliament’s cap on pre-trial credit in sentencing. The government wants the norm to be 1:1, and the maximum of 1.5:1 to be reserved for exceptional circumstances. The defence bar, and human rights advocates, while acknowledging that the 2:1 ratio is gone forever, say that the 1.5:1 ratio should be the standard, and a way to acknowledge the handicaps that individuals in pre-trial custody suffer: handicaps which convicted offenders do not have to bear.

Across the country, courts of appeal are setting down the rules on where the line should be drawn, and they are so far taking a unanimous stand against the government. So far the Nova Scotia Court of Appeal, the Manitoba Court of Appeal, and most recently, the influential Ontario Court of Appeal, have all come down in favour of 1.5:1 being the standard that should be applied in these cases, to recognize the hardships of pre-trial custody.

In the case of The Queen v. Summers, a difficult manslaughter case involving the shaking death of a baby the Court determined that the enhanced ratio should be the norm. The court examined the intention of Parliament when the law was being proposed and debated, and found that the strict interpretation being urged was not the approach taken in Parliament. If the government had intended the 1:1 ratio to be the norm, they could have specified this in the legislation. They didn’t, so they cannot try to interpret the law that way now.

This is a sound approach taken by the Court of Appeal, that recognizes the balancing and compromise that had to take place for the law to be passed by Parliament in the first place, and to ensure that the law survived attempts to strike it down as being unconstitutional. If the government had not left some flexibility to the judges, the law might not have survived.

The tension between the court and the government on this issue will not be resolved until the Supreme Court of Canada decides the issue.

Given that all three courts of appeal which have ruled on the issue so far have been unanimous, and given the soundness of their rulings, it is most likely that the Supreme Court will endorse their reasoning and entrench the availability of the 1.5:1 ratio as the standard in sentencing. Expect one of these cases to make its way to Ottawa soon, and check this space for updates on the issue.

One thing should be kept in mind, however: whether the 1.5:1 ratio is upheld or not, the government has succeeded in putting the courts back in their place, and limiting their ability to tailor sentences that properly fit the offence and the offender. This erosion of personal liberties in the name of crime-fighting, is not likely to end any time soon.

The sentencing lawyers at The Defence Group are available to handle all aspects of your sentencing hearing, whether you pled guilty or were convicted after trial. Thorough preparation is a hallmark of our approach, and hard work and preparation gets the best results. That is especially true in today’s political environment.

For a free consultation with our sentencing lawyers, click here.

To read the decision of the Court of Appeal in Summers, click here.

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