Focus: Feds score a few wins among high-profile losses

Despite a string of high-profile rulings against various crime bills at all levels of court in the past few months, Prime Minister Stephen Harper’s victories in other areas, including this month’s Supreme Court decision in Canada (Citizenship and Immigration) v. Harkat, show there’s no judicial bias against the federal government’s laws, says an appellate lawyer.

“I guess one could point to Harkat as proof that there isn’t an anti-Harper bias that’s systemic,” says Jasmine Akbarali, a partner at Lerners LLP in Toronto.

The comments follow weeks of commentary and concern in the legal profession about apparent discord between Harper’s government and the courts, notably in regards to Supreme Court Chief Justice Beverley McLachlin over assertions she inappropriately lobbied against Justice Marc Nadon’s appointment to the top court (something she denies). Besides that issue, the top court ruled against the government on its approach to the Truth in Sentencing Act in R. v. Summers as well as the Abolition of Early Parole Act in Canada (Attorney General) v. Whaling. At the lower courts, the Ontario Court of Justice found the new mandatory victim surcharge to be unconstitutional and “of no force and effect” in Tinker v. The Queen while the Superior Court added another layer of judicial disapproval of retrospective application of the parole legislation in Oraha v. Canada (Attorney General) on May 9.

On the other hand, the top court ruled in the government’s favour in Harkat. While not a criminal law matter, the top court upheld the government’s approach to controversial security certificates in Harkat. And when it comes to the victim surcharge, Superior Court Justice Lynn Ratushny took her Ontario Court colleagues to task for trying to skirt the legislation in ruling earlier this month on four appeals of their decisions, according to the Ottawa Citizen.

The overall message from the judiciary, according to Akbarali, “isn’t anti-government but it is anti-constitutional violations.”

“The reaction is that this is the Supreme Court doing what it can to gently roll back some of the current government’s legislative agenda,” says Paul-Erik Veel, an associate at Lenczner Slaght Royce Smith Griffin LLP, of the ruling in Summers.

It has certainly been a busy few weeks for the criminal bar with new rulings forging a path for how the courts will interpret the government’s various crime bills. As a result of Summers, lawyers now have more leeway to seek enhanced credit for time served in pretrial custody after the Supreme Court ruled the lost opportunity for early release and parole could be a circumstance justifying it. “I conclude that loss of access to parole and early release constitutes a ‘circumstance’ capable of justifying enhanced credit,” wrote Justice Andromache Karakatsanis in a unanimous ruling that emphasized the lack of ultimate sentencing parity between those denied or unable to secure bail and those released pending trial.

Akbarali, who was counsel for the Canadian Civil Liberties Association as an intervener in the appeal, says enhanced credit for pretrial custody on the basis of the parole and early-release issue will now likely be routine.
“I think unless there’s good evidence not to give enhanced credit . . . you’ll find sentencing judges granting enhanced credit on a routine basis,” she says.

As for the Abolition of Early Parole Act, the courts have now delivered several rulings on its retrospective application. Whaling rejected retrospective application of the abolition of accelerated parole to offenders already serving their sentences on the basis of s. 11(h) of the Charter of Rights and Freedoms against double jeopardy.

Oraha, meanwhile, dealt with an offender convicted before the act came into force on March 28, 2011, but not sentenced until afterwards. In that case, Justice Wolfram Tausendfreund rejected retrospective application of the accelerated parole abolition on the basis of s. 11(i) of the Charter that deals with punishments that have changed between the time of commission of the offence and the time of sentencing. In such cases, the offender gets the lesser punishment, according to s. 11(i). “I find that the delay in parole eligibility created by the [act] violates the s. 11(i) rights of the applicant by subjecting him to greater punishment than he had expected,” wrote Tausendfreund in his May 9 decision in Oraha.

The decisions, then, have dealt with various grounds for challenging legislation. While constitutional provisions were at the forefront of several cases, a key issue in Summers was clarity as the court found the Truth in Sentencing Act didn’t explicitly exclude parole and early release as grounds for enhanced credit. “Parliament does, of course, have the power to exclude these circumstances from consideration (barring a constitutional challenge),” wrote Karakatsanis. “However, it strikes me as 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.”

Can the government, then, get tough on crime if it just drafts its laws more clearly? “Certainly, clearer legislation will help,” says Akbarali.

“There’s probably room for it to get tougher,” she adds.

“Whether it can go as far as it wants to go without falling afoul of the Charter is another question.”

When it comes to Summers, Veel notes the government has the option to pass legislation to eliminate enhanced credit or “very carefully delineate the circumstances” for granting it, something he acknowledges could lead to constitutional challenges.

So is there an overall message from the top court on criminal law? “I think the answer is yes and no,” says Veel, who notes the narrow issues dealt with in rulings like Whaling that essentially left much of the law intact. “But on the flipside, what I would say is we don’t have a court that is rolling over and rubber-stamping everything the government is passing.”

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