The Ontario Court of Appeal ruled last week that the loss of remission and ineligibility for parole are sufficient reasons to grant enhanced sentencing credit to convicts.
In rejecting the appeal, the court aligned itself with the Manitoba and Nova Scotia appeal courts’ interpretation of the federal government’s Truth in Sentencing Act.
The bill, part of the government’s tough-on-crime agenda, aimed to stop judges from granting enhanced credit of two days for every day spent in remand, a common practice until a few years ago. Instead, the 2009 legislation made a 1:1 ratio the general rule with a provision that a judge could choose to give 1.5:1 credit in certain circumstances.
A lack of qualifying language as to what types of circumstances would warrant enhanced credit is at the heart of the appeal court’s decision last week.
“The legislator’s failure to employ modifying language in connection with the word ‘circumstances’ in s. 719(3.1), particularly when restrictive language could readily have been inserted, is significant,” wrote Justice Eleanore Cronk on behalf of the three-judge panel.
“It gives rise to the inference that a sentencing judge enjoys a wide discretion under the provision to consider all those circumstances that may, in a particular case, warrant enhanced credit, subject always to Parliament’s clear direction that such credit should not exceed that calculated at the maximum rate of 1.5:1.”
The fact that the legislation mentions two specific circumstances where enhanced credit isn’t an option — in cases where the court denies bail due to a previous conviction and matters involving the commission of an indictable offence while on bail — is more reason to believe that the absence of other qualifiers is intentional, according to Cronk. “None of the words ‘exceptional,’ ‘unusual,’ or ‘special’ (nor, I would add, any of the words ‘compelling,’ ‘extraordinary,’ or ‘rare’) is used in s. 719(3.1) to constrain or limit the circumstances that may justify enhanced credit,” she wrote.
“A showing of exceptional circumstances is not required to ground enhanced credit under s. 719(3.1).”
The sentencing judge, Superior Court Justice Stephen Glithero, had ordered Summers to serve eight years in prison for the 2010 death of his four-month-old daughter, Kayleigh, who died of injuries she sustained after he violently shook her while looking after her. Summers entered a guilty plea.
Using a ratio of 1.5:1, the sentencing judge gave Summers credit of 16 months, a number that will remain intact after the appeal court’s decision.
Hick Adams LLP partner Corbin Cawkell, counsel for intervener the Criminal Lawyers’ Association, says the appeal court provided much-needed clarification on the act. Ruling contrary to other provinces’ courts “would have added further confusion to an already confusing landscape,” he says.
The ruling, according to Cawkell, is a fair one for those who can’t get bail for finanical reasons.
“The fact is, if you were given credit on a one-for-one basis, you weren’t treated the same way as somebody who wasn’t held in custody,” he says.
In provincial and territorial prisions, most people get out after serving two-thirds of their sentence. In federal prisions, “well over 95 per cent” of individuals get out after serving the same amount of time, says Cawkell.
If those held prior to trial and sentencing don’t get enhanced credit, they’ll end up serving more time than someone who comitted the same crime and got the same sentence but had been out on bail, he notes.
“If you count every single day as 1.5:1 for pretrial custody, you’re given the same sentence that you’d get if you were sentenced on that day and walked into custody,” says Cawkell. “Everybody then gets something close to two-thirds of their sentence.”
He adds: “That’s what the whole purpose of the law is. Everybody is supposed to be equal.”
Hamilton, Ont., criminal lawyer Jeffrey Manishen agrees.
“There’s a very logical reality to the concept that someone who hasn’t been able to get bail but would otherwise be eligible for parole and remission should get credit for that beyond simply one day for every day spent in custody,” he says.
“If you deny the person additional credit, you’re effectively requiring them to spend more time in custody than someone who had gotten bail,” adds Manishen, who calls the decision “thorough, extremely well-reasoned, and sound.”
Manishen lauds the appeal court for upholding the notion that a judge should have the discretion to sentence people based on their individual circumstances.
“I’m really concerned that the federal government has lost sight of that,” he says.
“Their legislative schemes on a consistent basis have been designed to restrict judicial discretion on matters of sentencing whether in the way of the significantly increased use of statutory mandatory minimum sentences or here to endeavour to restrict credit to be given for time spent in custody.”
Parliament has, for example, effectively taken the 2:1 credit option off the table, says Manishen, who argues there are “critical features” recognized under the previous system. Jail conditions in remand facilities are harsher, there are few rehabilitative and recreational programs, and the remanded person loses eligibility for parole and remission, says Manishen.
In its factum, the Crown argued that loss of remission and eligibility for parole couldn’t on their own be valid circumstances for granting enhanced sentencing credit.
“There was no suggestion that the respondent had suffered harsh or oppressive remand conditions. Instead . . . the defence sought this enhanced credit solely on the basis that the respondent didn’t have the benefit of earned remission during the period of his presentence custody,” wrote Crown attorney Gregory Tweney.
Tweney also said other courts have rejected the line of jurisprudence used by the sentencing judge.
The appeal court, however, found the sentencing judge had applied the 1.5:1 credit to avoid “disparate and inequitable treatment of offenders.”
If there’s one issue that troubles Cawkell about the appeal court’s decision, it’s that it suggests defence counsel now have a new burden of proof.
“What the court seems to suggest is that I’m supposed to prove that my client is going to get two-thirds of their sentence, that they are going to be paroled, whereas the statistics suggest that everybody is,” he says, adding he’s unsure how other courts will interpret that aspect of the decision.
“I’m just concerned that the courts are going to require us to prove something that the Crown should really prove.”