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Top court showing independence

April 16, 2014   ·   0 Comments

IT WAS REFRESHING, indeed, to see the Supreme Court of Canada last week unanimously reject a Crown appeal based on federal legislation that reduced the ability of trial judges to exercise their discretion when sentencing criminals.

And it was particularly refreshing to see that the judge who wrote on behalf of the court was appointed by Prime Minister Stephen Harper, whose government passed the legislation as part of a “law and order” campaign designed to garner votes.

At issue in the case, R. v. Summers, was an Ontario Superior Court judge’s decision to reduce the sentence he meted out by more than one day for each day the offender had spent in pre-trial custody.

The Truth in Sentencing Act, passed in 2009, limited compensation to a maximum of one day for each day spent in custody unless special circumstances justified providing up to 1.5 days.

Historically, our courts routinely awarded two days for each day spent before trial, on grounds incarceration in detention centres is particularly harsh, with few amenities like exercise yards or educational programs, and the fact there is no equivalent to parole, which in Canada means release from prison after as little as one-third of the sentence has been completed, the normal period of 24-hour incarceration being two-thirds of the total sentence.

In the case before the court, Sean Summers pled guilty to manslaughter in the death from shaking of his infant daughter, which originally led to a charge of second-degree murder.

The trial judge, Justice Stephen Glithero, concluded that the appropriate sentence of eight years should be reduced by 14 months, to six years and eight months to reflect 10.5 months spent in pre-trial custody.

The Crown’s appeal of the ruling was rejected by the Ontario Court of Appeal, and that decision has now been upheld, unanimously, by the country’s top court.

Writing for the court, Justice Andro-mache Karakatsanis said crediting a single day for every day spent in a remand centre “is often insufficient to account for the full impact of that detention, both quantitatively and qualitatively.  Time in a remand centre does not count for the purposes of eligibility for parole, earned remission or statutory release, and this can result in a longer term of actual incarceration for offenders who were denied bail.

Moreover, conditions in remand centres tend to be particularly harsh; they are often overcrowded and dangerous, and do not provide rehabilitative programs.”

She noted that the practice of granting two days’ credit for time spent in pre-trial custody was upheld by the court in 2000, and that when conditions were exceptionally harsh, judges had “granted credit at a rate of 3 to 1 or more.”

Justice Karakatsanis said the Truth in Sentencing Act’s avowed purpose “was to remove any incentive for an accused to drag out time in remand custody, and to provide transparency so that the public would know what the fit sentence was, how much credit had been given, and why.”

She noted that while the Act capped pre-sentence credit, “it does not limit the circumstances that justify granting credit. … Had Parliament intended to alter the well-established rule that enhanced credit compensates for the loss of eligibility for early release, it would have done so expressly.”

The decision clearly restores to trial judges at least some of the discretion they traditionally had, albeit not to the point of being able to award two days for one.

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