The Supreme Court of Canada has found that pre-sentence custody is not a potential impediment to a trial judge imposing a probation order in addition to a jail term.
The court was asked to interpret parts of s. 719 of the Criminal Code and how pretrial custody should be considered when a judge would otherwise have imposed a penitentiary term.
“Pre-sentence custody cannot really be interpreted as a sentence,” wrote Justice Morris Fish. “The term of imprisonment is the term imposed by the judge at the time of the sentence,” said Fish.
Probation orders under s. 731 of the code may be imposed on offenders receiving a jail term “not exceeding” two years.
Mathieu means probation orders may be imposed by trial judges even if the combined pretrial detention and custodial sentence exceeds 24 months.
A 2006 decision by the B.C. Court of Appeal in R. v. Goeujon was cited by Fish as authority for the purpose of a probation order. “Probation is not intended to punish the offender as much as to rehabilitate the offender,” said Fish.
The use of a probation order is a “useful tool” for a trial judge, he noted. “If it were to be concluded that a probation order is not available in cases where the total of the time spent in pretrial custody and the sentence of imprisonment imposed by the judge is more than two years, this could have a harmful consequence, as the judge might decide to impose a longer term of incarceration.
This interpretation, which must be rejected, would have the unfortunate effect of unjustifiably increasing the length of time to be served in prison; in addition, the probation order’s effect of facilitating an offender’s reintegration into society would be unavailable to offenders who might benefit from it,” wrote Fish.
The Supreme Court has previously found that pretrial custody can be treated as part of the term of imprisonment in the context of a minimum sentence (R. v. Wust) or whether an offender is eligible for a conditional sentence (R. v. Fice). “These are exceptions that prove the rule,” said Fish, who distinguished those decisions.
The ruling in Mathieu will have a significant practical impact for trial courts across the country, says Vincenzo Rondinelli, a Toronto. defence lawyer. “Judges do not have to second-guess whether they have jurisdiction to make a probation order in light of Wust or Fice. Lawyers can advise clients with much more clarity as to the possible sentences he or she will be facing,” he says.
The ruling is a very conservative approach to statutory interpretation, notes Rondinelli, who says it will “widen the net” of probation orders and could lead to inconsistent sentences.
For example, two offenders who a court finds should get the equivalent of a 30-month sentence will be treated differently depending on whether they have spent time in pretrial custody, says Rondinelli.
An offender with four months in pretrial custody (counted as eight months with standard two-for-one “dead time” credit), will now be considered to have received a 22-month sentence and will be subject to a probation order of up to three years. If the other offender has been free on bail, he will be sent to the penitentiary to serve the 30-month sentence. He will be subject to parole upon release, but for a shorter period than someone on a probation order.
In addition to its findings related to probation orders, the court narrowed the opportunity for judges to delay an offender’s parole eligibility under s. 743.6 of the code.
Pretrial custody cannot be included to find that an offender has received a sentence of more than two years and is subject to the provisions in 743.6, said Fish. As well, the section can only be invoked if an individual count meets the threshold.