The fate of this recent Criminal Code amendment conjures up the famous French aphorism, “plus ça change, plus c’est la même chose.”
Taking a leaf from US initiatives to ensure the convicted serve the actual period to which they are sentenced, the Canadian government, in February 2010, passed Bill C-25, amending the Criminal Code (Code) provision on crediting pre-sentence detention.
Section 719(3) of the Code had stated, “[i]n determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence.” While not obliged to give credit, it must consider whether to do so.
But the Supreme Court of Canada (SCC) in R. v. Wust1 instructed trial judges that it was an error in principle to fail to generally give double credit (two days for each day of pre-sentence detention), based on two considerations.
Firstly, a prisoner serving time before sentence is not in a position to have this time credited toward parole eligibility… This is why such custodial periods attract the appellation “dead time.” Secondly, there is often greater hardship associated with pre-sentence custody, including a lack of access to the types of programming available in most institutions where offenders are incarcerated after being sentenced.2
These judge-made principles clearly cut no mustard with Parliament. Two was too much. Section 719(3) was amended to add:
- A judge may allow a maximum credit of one day for each day of “dead time.”
- If the circumstances justify it, a judge may allow a maximum credit of one and one-half days for each day of “dead time,” but must give reasons for this.
The obvious intent was to ensure judges generally gave 1/1 credit, departing for 1.5/1 only as an “exception.” The Justice Minister said he acted as judges were eroding “public confidence in the integrity of the justice system” and perpetuating “untruth in sentencing.” But interestingly, the legislation is written so opaquely that judges are given no direction on when departure is justified.
Judges quickly used that opaqueness. In Johnson, a 2011 Ontario Charter challenge, the judge held the norm should be 1.5/1, noting the amendments do not limit enhanced credit to exceptions, but rather “if the circumstances justify it.” As 1/1 credit creates a longer effective sentence for a detained person than the same sentence for those on bail, it constitutes such a “circumstance,” as 1.5/1 credit brings the two situations into rough parity.3
Eventually, out of a patchwork of conflicting decisions, the appellate courts in Ontario4, Quebec5, Alberta6, Manitoba7, Nova Scotia8 and Newfoundland9, reached the same conclusion as Johnson. Only the British Columbia Court of Appeal disagreed.10 Naturally the whole matter recently landed in the lap of the SCC.11
Based on Wust, the SCC sided with the majority of appellate courts. It said the amendments cap “pre-sentence credit [at 1.5/1], but... Parliament gave no indication it intended to alter the reasons for which enhanced credit can be granted. Neither the language of the provision nor the external evidence demonstrates a clear intention to abolish one of the principled rationales for enhanced credit. A rule that results in longer sentences for offenders who do not obtain bail is incompatible with the sentencing principles of parity and proportionality. The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5/1, even if the conditions of detention are not particularly harsh, and parole is unlikely.”
So the circle closes, only at 1.5/1 rather than 2/1. Judicial principles win the day.
1-11 Click on footnote number above for more information.