In a pair of decisions delivered this morning, R. v. Summers, 2014 SCC 26, and a companion case, R. v. Carvery, 2014 SCC 27, the Supreme Court has endorsed the trial courts’ practice of routinely crediting time spent by accused persons before their sentencing on a more than one-to-one basis against the total duration of their sentence, the Truth in Sentencing Act, enacted by Parliament in 2009, notwithstanding. The provisions that statute added to the Criminal Code state that “the [sentencing] court shall limit any credit for that time to a maximum of one day for each day spent in custody” but add that “despite” this rule, “if the circumstances justify it, the maximum is one and one-half days for each day spent in custody,” except in some cases where this enhancement is not available.
The government argued that the enhanced credit was meant to be the exception, not the rule. In particular, the government contended that it should not be granted merely to compensate for the fact that pre-sentence custody does not count for the purposes of determining when an offender becomes eligible to one or another form of early release (such as parole at 1⁄3 or statutory release at 2⁄3 of the sentence). In a unanimous opinion written by Justice Karakatsanis, the Supreme Court rejects this position, holding that the statute, as written, provides no basis for it.
There are two reasons, Justice Karakatsanis points out, why courts often choose to grant enhanced credit for pre-sentence detention:
[f]irst, the quantitative rationale for the practice of granting enhanced credit is to ensure that the offender does not spend more time behind bars than if he had been released on bail (par. 23).
Importantly, because almost all offenders benefit from some form early release, this quantitative rationale applies to most sentencing cases. “The second rationale for enhanced credit,” explains Justice Karakatsanis,
is qualitative in nature. Remand detention centres tend not to provide the educational, retraining or rehabilitation programs that are generally available when serving a sentence in corrections facilities. Consequently, time in pre-trial detention is often more onerous than post-sentence incarceration. … [O]vercrowding, inmate turnover, labour disputes and other factors also tend to make pre-sentence detention more onerous.
Courts had thus developed a practice of crediting pre-sentence detention at a ratio of two days for one, and sometimes more, to account for both its quantitative and its qualitative effects. The Truth in Sentencing Act explicitly caps the credit at 1.5 days for one. But does it limit the “circumstances” that “justify” the granting of enhanced credit?
Justice Karakatsanis finds that it does not. The statute’s text makes no mention of “exceptional” circumstances or of any other qualification on what the relevant “circumstances” might be that would exclude the effects of rules on eligibility for early release. The fact that the statute presents enhanced credit as exceptional is not significant. There is no rule that says that exemptions may not be numerous than the cases where the rule applies, and indeed the government “accepts that the lack of programs in detention facilities and overcrowding are common problems, and could result in” this being the case here (par. 47). Furthermore, Parliament must be presumed to have been aware of both the quantitative and the qualitative rationales for enhanced credit, and its failure to exclude them from consideration suggests that it had no intention of doing so. Finally, refusing to account for the effects of pre-sentence detention not counting towards early release violates the principle that similar crimes should receive similar punishment:
it is difficult to see how sentences can reliably be “proportionate to the gravity of the offence and the degree of responsibility of the offender” (s. 718.1 [of the Criminal Code]) when the length of incarceration is also a product of the offender’s ability to obtain bail, which is frequently dependent on totally different criteria.
Some offenders ― Aboriginal persons in particular, but more generally all those who are isolated, marginalized, or impoverished ― will have more trouble obtaining bail than others, and would be punished more harshly for identical crimes.
Justice Karakatsanis concludes, therefore, that the old approach to the determination of enhanced credit should remain in place, subject to the cap imposed by the Truth in Sentencing Act. Even the cap, she adds, might not be unbreakable:
individuals who have suffered particularly harsh treatment, such as assaults in detention, can often look to other remedies, including under s. 24(1) of the Charter.
The Supreme Court’s decision strikes me as obviously right. There are, however, some interesting questions concerning its implications. The obvious one is whether Parliament could re-write the law, perhaps enacting a “Truth in Truth in Sentencing Act” that would specifically prevent courts from considering the “quantitative rationale” for enhanced credit. If the problem is simply that Parliament had not spoken clearly enough, it can speak more clearly. However, the part of the opinion ― which Justice Karakatsanis notes is not even necessary to dispose of the case ― which discusses the violations of the principles of parity and proportionality that would result from not considering the “quantitative rationale” seem to me to be a thinly disguised warning to Parliament against taking that course. It could be transposed, almost verbatim, into an arbitrariness analysis under s. 7 of the Charter which would lead to the inexorable conclusion that the exclusion of the “quantitative rationale” amounts to a deprivation of liberty in violation of a principle of fundamental justice.
Indeed, the question of whether the current cap on enhanced credit is constitutional ― which the Court did not address since no constitutional challenge was before it ― remains open. Justice Karakatsanis suggests that in some cases, the courts’ inability to give credit that accounts for both the “quantitative rationale” and the “qualitative” one is unjust, and explicitly suggests that some offenders, whom it impacts especially severely, look to “remedies … under s. 24(1) of the Charter.” Yet this is an odd suggestion. In the somewhat similar context of inquiring into the constitutionality of mandatory minimum sentences, the Supreme Court has rejected the “constitutional exemption” approach ― allowing sentences below the mandatory minimum when that minimum amounted, for a particular offender, to cruel and unusual punishment contrary to s. 12 of the Charter. In such cases, the Court held in R. v. Ferguson, 2008 SCC 6,  1 S.C.R. 96, the entire mandatory minimum provision must be struck down. I’m not sure why it would be any different with the cap on enhanced credit which, like the mandatory minimum, results in some (though not all) offenders having to spend more time in prison than their circumstances justify. Could it be that the Court actually thinks that the cap is unconstitutional, and is simply reluctant to say so in so many words?
Be that as it may, this is an encouraging (and encouragingly unanimous) decision by the Supreme Court. At the very least, it shows that Courts will not take hints from Parliament in advancing the current government’s “tough on crime” agenda. If Parliament wishes to be mean, it must be clear about it. To the extent that it leaves courts discretion, they will use it to try to preserve some sense and equity in the criminal justice system. Beyond that, there is hint ― only a hint perhaps, but a fairly strong one ― that, should Parliament attempt to up the ante by eliminating this discretion, courts will respond by calling the constitution to the rescue. The truth about sentencing, as the Supreme Court suggests, is that it should be about the individual crime and the person who committed it. Not whatever tough-sounding rhetoric a government chooses to employ.
NOTE: Michael Spratt also comments on the Summers decision.