The Conservative government’s tough-on-crime agenda has suffered another major blow at the Supreme Court of Canada. The court blocked the government’s attempt to stop judges from routinely giving extra credit to offenders for time served in jail before sentencing.
The 7-0 ruling continues the losing streak of the Harper government in major cases at the Supreme Court over the past month.
The law at stake is a centrepiece of the government’s tough-on-crime agenda. The 2010 Truth in Sentencing Act set out to bar judges from giving double credit to offenders, in which each day behind bars before a trial counted as two days off their ultimate sentence. The act said each day should count as a day, though it also allowed 1.5 days credit “if the circumstances justify it.”
Judges in several provinces, however, have been routinely giving credit of 1.5 days. They say the extra credit is only fair, because jail time is nearly always reduced by a minimum of one-third after sentencing; a 90-day sentence means 60 days.
“I just say it’s absolutely unfair to treat someone who is presumed to be innocent more harshly than we would treat someone who has been found to be guilty,” Ontario Superior Court Justice Stephen Glithero wrote in the case of Sean Summers, 19, convicted of manslaughter after shaking his three-month-old baby to death.
That case was one of two Ottawa had appealed to the Supreme Court. Mr. Summers received 1.5 times credit for the 10 months he spent in pre-trial custody, taking 15 months off his eight-year sentence. Level Carvery, also 19, of Nova Scotia was convicted of cocaine trafficking and received 1.5 times credit for nine months in pre-trial custody, which cut his 30-month sentence roughly in half.
Appeal courts in Ontario, Nova Scotia, Quebec and Manitoba upheld the judicial practice of routine 1.5 times credit; only British Columbia’s, by a 2-1 count, was against it, saying judges need to “honour Parliament’s intention.”
The government said it was building confidence in the justice system by ending an overly generous practice by judges. It also said prisoners abuse the system’s generosity by drawing out their cases in hopes of earning double credit. But one Ontario judge described that type of abuse as “more chimeric than real.”
The case was a key battleground between the government and the judiciary. The Truth in Sentencing Act put limits on judges’ discretion, one of several Conservative laws to do so. Judges have been pushing back, saying that it is still their job to ensure sentences are proportional and fair, under the Criminal Code. While the case wasn’t strictly speaking a constitutional one, proportionality has been described by the Supreme Court as a “constitutional obligation.”
Canada has more people in remand (waiting for trial) than in jail after being sentenced. In 2007-08, on any given day about 12,800 adults were in remand compared to about 9,500 in sentence custody. The number of adults in remand doubled from the late 1990s to 2007-08.
The government lost three major cases last month at the Supreme Court: the appointment of Justice Nadon to the Supreme Court, prisoner rights and a retroactive toughening of parole.
Supreme Court quashes Harper governmentâ€™s tougher sentencing rules - The Globe and Mail