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 court suggested that its rulings were rooted not only in a straightforward interpretation of the Truth in Sentencing Act, but in timeless principles of sentencing. And the rulings were written by a Harper appointee, Justice Andromache Karakatsanis — one of four on the panel of seven judges who heard the cases.
I really really hate how the media reports on Court decisions. Give us a link to the text of the decision. Failing that, at least give us the goddamn name of the case so we can look it up ourselves.
Just worthless. I do not care what you think about what the Court says as a journalist. I want to read what they actually said.
EDIT: More helpfully, CBC did link to the case which confirmed that the title of this thread is wrong. They did not consider the law "illegal", that's not even a thing. Nor did they rule that it was unconstitutional. They simply interpreted the provision in light of the existing law and said that if the intent was to remove credit for pre-trial sentencing the legislature would have to do that expressly.
Last edited by 19Yzerman19; 04-11-2014 at 02:51 PM.
I really really hate how the media reports on Court decisions. Give us a link to the text of the decision. Failing that, at least give us the goddamn name of the case so we can look it up ourselves.
Just worthless. I do not care what you think about what the Court says as a journalist. I want to read what they actually said.
I might be mistaken but I think the SC tends to release their decisions online at some point.
I might be mistaken but I think the SC tends to release their decisions online at some point.
They do, 19Yzerman19's gripe is two fold:
(1) that a journalist should tell you the name of the case in the article, the issue that was decided and if the article is online a link to the SCC decision.
I agree.
It shouldn't be the reader's job to go hunting the story and citing it for the journalist. That's the journalist'a job.
(2) when reporting the facts and issue at hand, the journalist shouldn't be editorializing. There is a time and a ace for editorials. A straight up "the Supreme Court made a ruling…" isn't one. An editorial should be labeled as such and not presented as fact.
I also agree with that.
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Yes, but particularly when you have a journalist who is not a criminal law specialist trying to editorialize in an area in which they have no expertise. The Supreme Court has plenty of expertise and I'll just take it straight from the horse's mouth - especially when the headnote to a case isn't much longer than the article itself.
Here is the headnote from this case:
Spoiler!
Quote:
The Truth in Sentencing Act, passed in 2009, changed the statutory regime governing credit for pre‑sentence detention. Parliament modified s. 719(3) of the Criminal Code to limit credit for pre‑trial custody “to a maximum of one day for each day spent in custody”. Parliament also provided in s. 719(3.1) that despite that limit, “if the circumstances justify it, the maximum is one and one‑half days for each day spent in custody”.
In this case, the accused was on remand for 10.5 months. The sentencing judge assigned a credit calculated at a rate of 1.5 to 1, on the basis that pre‑trial detention did not count towards parole eligibility for the accused. The judge found that this was a circumstance justifying credit at a ratio of 1.5 to 1 under the Criminal Code. The Court of Appeal agreed and dismissed the appeal.
Held: The appeal should be dismissed.
When an accused person is not granted bail, and must be remanded in jail awaiting trial, the Criminal Code allows time served to be credited towards a resulting sentence of imprisonment. Historically, the Code imposed no restrictions on the reasons for giving credit, nor the rate at which credit was granted.
Courts generally gave enhanced credit, at a rate higher than one day for every day of detention, for two reasons. First, statutory rules for parole eligibility and early release do not take into account time spent in custody before sentencing. Therefore, the quantitative rationale recognized that pre‑sentence detention almost always needs to be credited at a rate higher than 1:1 to ensure that an offender who is released after serving two thirds of his sentence serves the same total amount of time in jail whether or not he is released on bail. Second, the qualitative rationale for enhanced credit recognized that conditions in detention centres tended to be harsher than corrections facilities. As a result of these twin rationales, a practice developed over time of granting credit for pre‑sentence detention at a rate of 2:1.
TheTruth in Sentencing Act caps pre‑sentence credit, but does not alter the reasons for which it may be assigned. Section 719(3.1) is free of any language limiting the scope of what may constitute “circumstances”justifying enhanced credit. While Parliament clearly turned its attention to the circumstances under which s. 719(3.1) should not apply, the provision is devoid of any limiting language which would support the position that“circumstances” resulting from the operation of law, and specifically lost eligibility for early release and parole, could not justify enhanced credit.
While s. 719(3.1) is structured as an exception to s. 719(3), there is no general rule of statutory interpretation that the circumstances falling under an exception must be numerically fewer than those falling under the general rule. Therefore, it is not a concern that most remand offenders will qualify for enhanced credit on the basis of lost eligibility for early release or parole. Further, an interpretation of “circumstances” that includes loss of eligibility for parole and early release does not render s. 719(3) redundant. Where an accused falls under an explicit exception to s. 719(3.1), the one‑for‑one cap set by s. 719(3) will apply. In addition, the structure of s. 719 is consistent with the rationales for the existence of pre‑sentence credit. Section 719(3) reflects the general rationale for giving credit; any time in jail should generally be credited day for day. On the other hand, s. 719(3.1) reflects the rationale for enhanced credit. Crediting a day in pre‑sentence custody as a day served is insufficient to account for both loss of eligibility for parole and early release (circumstances with quantitative impact) and the harshness of the conditions (circumstances with qualitative impact).
The practice of using the former s. 719(3) to award enhanced credit for both the quantitative and qualitative consequences of pre‑sentence detention was deeply entrenched in our sentencing system. It is inconceivable that Parliament intended to overturn a principled and long‑standing sentencing practice, without using explicit language, by instead relying on inferences that could possibly be drawn from the order of certain provisions in the Criminal Code. Rather, it seems more likely that Parliament intended to do what it did explicitly. The amendments clearly impose a cap on the rate at which credit can be awarded, at 1.5 to 1. Having made its intention so clear on that point, 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.
As the legislature is presumed to have created a coherent, consistent and harmonious statutory scheme, s. 719 should be interpreted in a manner that is consistent with the principles and purposes of sentencing set out in the Criminal Code. A rule that results in longer sentences for offenders who do not obtain bail, compared to otherwise identical offenders is incompatible with the sentencing principles of parity and proportionality. This is particularly so, given that vulnerable and impoverished offenders are less able to access bail.
The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely. However, if it appears to a sentencing judge that an offender will be denied early release, there is no reason to assign enhanced credit for the meaningless lost opportunity. The onus is on the offender to demonstrate that he should be awarded enhanced credit based upon his pre‑sentence detention. Of course, the Crown may challenge the inference that the offender has lost eligibility for parole or early release, justifying enhanced credit. Extensive evidence will rarely be necessary. A practical approach is required that does not complicate or prolong the sentencing process.
Here, the sentencing judge did not err in law by granting enhanced credit under s. 719(3.1) on the basis of the accused’s loss of eligibility for early release and parole. There is no serious challenge to the conclusion that the accused was likely to access early release. It was therefore appropriate to grant credit at a rate of 1.5 days for every day in detention on the basis of the quantitative rationale for enhanced credit.
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Hardly surprising that SebC would attach himself to a flagrantly incorrect interpretation of the judgment. Anything to push his anti-conservative hatred, after all.
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Hardly surprising that SebC would attach himself to a flagrantly incorrect interpretation of the judgment. Anything to push his anti-conservative hatred, after all.
Hardly surprising that Resolute 14 would post something condescending with no actual substance.
It was a stupid proposition in the first place. Not really sure how time spent in a provincial jail is any different than in a federal.
I have worked in both systems and there is a fairly significant difference between doing provincial and federal time.
Most provincial jails operate in an 'open custody' living unit model. This means that corrections officers are physically in the unit with the inmates. Due to safety risks to the officer, the inmates are given very little. They get 1 hour of fresh air, 3 meals a day, a tv and books to read. In addition to this, remanded inmates are not technically 'guilty' so they are not allowed to work or take any kind of meaningful programming.
Federal jails almost the opposite of provincial jails. Officers are behind a 'bubble' and are not normally in the living units with the inmates. Because of this federal inmates are given access to things provincial inmates would not normally have. They can have their own clothes, computers in their cells, playstations, jewelry and in some jails they can even order outside food. Since they are also sentenced they can work during the day.
Just in case anyone was interested in the difference between the systems.
As I read this trio of decisions, the Court of Appeal and the Supreme Court of Canada both interpreted "if the circumstances justify it" in a way that nearly completely frustrates the intent of the legislation. This is a big loss for Harper. I don't think there is any other way to see it.
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Prior to the legislation's enactment, credit for pre-trial custody was frequently given at a rate in excess of 1.5:1. Following the legislation, that is the maximum credit that can be given. Consequently, the legislation achieved its purpose of circumscribing the rate at which credit was given.
Now, an additional purpose of the provision was to also only provide for a rate in excess of 1:1 "if the circumstances justify it". This was probably intended to ensure that in most cases, the rate would be 1:1. These decisions, properly read, suggest that in many cases, a rate of 1.5:1 is appropriate. Consequently, that particular intention on the part of Parliament has been frustrated.
So, it's a loss for Harper in the sense that 1.5:1 credit is still getting handed out; at least until they amend the provision to explicitly provide which circumstances do and don't permit giving credit. But overall, the legislation is performing its intended role. It certainly has not been in any way declared "illegal" or otherwise rejected by the courts.
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Supreme Court: One of Harper's "Tough-on-crime" laws is illegal.
