Supreme Court Decision Another Blow to Gov’t Law-and-Order Agenda

Posted by  on March 24, 2015
Supreme Court Decision Another Blow to Gov’t Law-and-Order Agenda

The Supreme Court of Canada has ruled decisively against the government’s attempts to undermine long-standing legal principles. Those principles balance the rights of individuals to life, liberty and security of the person against the crushing power of the state.

One of the signature initiatives of the Harper government’s law-and-order agenda was to eliminate the court’s practice of granting enhanced credit for people serving time in jail before their sentencing. To accomplish this, they passed the Truth in Sentencing Act in 2010 (see our earlier blog, “Hard Time” here), which was finally considered and ruled upon by the Supreme Court of Canada, in a judgement released recently.

For decades, it has been routine for courts to grant credit of two days for each day served in pre-trial custody. For example, if an offender had served six months in custody before being found guilty and sentenced, that person would be given credit for 12 months in custody to be subtracted from the final sentence.

This granting of pre-trial custody credit was not intended to reward offenders or to be “soft on crime”, as the Conservatives would have the public believe. The rationale for enhanced credit was two-fold: to adjust for the unfairness that people who could not get bail would be punished more harshly than those who could make bail; and because conditions in pre-trial remand centres are worse than for people serving sentences.

For years the granting of two-for-one credit did not make news or appear on the government’s radar. That changed when courts, particularly in Ontario, began to more often award pre-trial custody credit at a rate greater than 2:1, to reflect the terrible conditions in pre-trial detention centres. In recent years, due to budget cuts and greater rates of incarceration, these remand centres have become chronically overcrowded, unsanitary and dangerous. Access to health care, counselling, rehabilitative programs, and even basic exercise are minimal to non-existent. Judges had begun to refer to these maximum security jails as “medieval” and “inhumane”.

As a response to these miserable conditions, judges began to count pre-trial custody at an even more enhanced rate, to express their disapproval of the government’s inattention to the plight of people in pre-trial custody, who, it is important to remember, are guaranteed the presumption of innocence by the Charter of Rights.

Politically, there are no votes to be gained by taking a humane approach to criminal law, or by spending scarce dollars to provide counselling, or rehabilitation services. It is much easier to demonize crime and criminals, and to encourage fear-mongering; to appeal to the worst instincts for revenge and punishment in human nature rather than to its “better angels” of compassion and empathy. The path to re-election for the Harper Tories has been to demonize certain people, and to create the fiction that crime is rampant, when crime statistics show the exact opposite.

By granting enhanced pre-trial credit at greater than the traditional 2:1 rate, the courts caught the attention of politicians seeking to win votes. In true Republican Tea Party fashion, the Harper Conservatives sought to appeal to their political base by decrying “soft-on-crime” judges, and vowing to end the “coddling” of criminals. Their response was, among many other things, the Truth in Sentencing Act.

In crafting legislation to accomplish their objectives, the Harper government had to try to balance their objective of eliminating credit for pre-trial custody, while trying to avoid a constitutional challenge that might result in the courts striking down their new law. This is because the supreme law in Canada is the Constitution, with its Charter of Rights and Freedoms, not the routine legislation passed by the government of the day.

This tension between the legislative branch of government (Parliament) and the judicial branch (the courts) is the backbone of our democratic system. For a law to survive, it must pass the constitutional scrutiny of the courts. This drives Harper Tories nuts, because they want to be the sole source of the law, unencumbered by the rights of minorities and pesky judges.

In drafting the Truth in Sentencing Act, the government chose to muddy its intention with ambiguity and vagueness. It declared that from now on, the maximum credit to be given to inmates serving time in pre-trial custody was to be at a rate of 1:1. However, to avoid the legislation being struck down as a violation of the Charter, the government tried to appear flexible, and said that “if the circumstances justify it”, credit can be given at a maximum rate of 1.5:1.

This qualification left a hole in the legislation which judges promptly seized on to establish the new standard as being 1.5:1. The Harper government tried to counter that by arguing that the 1.5:1 rate was supposed to be limited to exceptional cases.

It fell to the Supreme Court of Canada to resolve that question. They answered that question unanimously, in a decision that struck another blow to the Harper government’s law-and-order agenda. And they did so in an elegant and simple way. In the court’s decision, they said that if the court had intended that the 1.5:1 rate was to be exceptional, they should have said so. Because they didn’t, the court would interpret the law in accordance with fundamental sentencing principles.

It is a fundamental principle of sentencing, stated in the Criminal Code of Canada, that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. The big problem with the government’s argument that pre-trial custody be calculated on a 1:1 basis is that, when deciding on parole or remission, which are also fundamental principles of sentencing designed to re-integrate offenders into society, only the time spent in custody AFTER sentencing is counted. That means that a person who got bail and did not serve any pre-trial custody would be released on parole or statutory remission sooner than the exact same offender who did not get bail. And that is not only unfair, it violates the very principle of sentencing stated above. It is mostly the poor and the Aboriginal population that cannot make bail, and they are the ones who would be disproportionately punished by the new law.

The Supreme Court quite properly found that in choosing between an interpretation that offends a fundamental principle of sentencing, and one that does not, the latter should prevail. And if the government had intended that their legislation violate a fundamental legal principle, they should have said so explicitly.

The Supreme Court therefore called the Harper government’s bluff. The Tories wanted to do an end-run around the Charter of Rights, and chose to conceal their intent behind vague and ambiguous wording. The Court, in safeguarding the integrity of the legal system and the rights of individuals, called the government out on this ruse and dealt another blow to their cynical plan to buy votes at the expense of the law, and of justice.

What remains to be seen now, given the consecutive defeats that the Harper agenda has suffered at the hands of the Supreme Court, is how the government will try to undermine the Supreme Court itself, which has been a thorn in its side recently. He has already tried to do this with the failed and cynical appointment of perceived government “yes-man” Marc Nadon.

One can only hope that Prime Minister Harper gets the message that the laws and freedoms of Canada are for all Canadians, not just the ones who vote for him.

Read the Supreme Court’s decision here.

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Arun S. Maini, lawyer and founder of The Defence Group, has practised criminal law since 1995. He’s a graduate of the University of Toronto and Dalhousie University Law School. After completing his articles at a Bay St. law firm, Mr. Maini joined the federal Department of Justice as a prosecutor of drug trafficking, tax evasion, and immigration fraud cases in Toronto, Brampton and Vancouver. In 1999, Mr. Maini transferred to the provincial Crown attorney’s office in Brampton, where he prosecuted a wide range of criminal offences, from theft to murder. In 2003, Mr. Maini left the government to establish The Defence Group. Mr. Maini handles all criminal offences and regulatory prosecutions.

Over more than 25 years as a criminal lawyer, Mr. Maini has prosecuted and defended hundreds of criminal cases, and has extensive jury trial experience. Mr. Maini has also lectured at The Advocates’ Society and has taught advocacy at the Law Society and Osgoode Hall Law School’s Intensive Trial Advocacy program. Maini appears occasionally in the media to comment on criminal law – see examples from the CBC, the Toronto Star, and the National Post.

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