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The Ontario Court of Appeal reserved judgment Thursday after Toronto criminal lawyer Corbin Cawkell argued against a key piece of the federal Conservatives’ tough-on-crime agenda.
On the heels of the recent Nova Scotia Court of Appeal (NSCA) case of R. v. Carvery upholding the awarding of enhanced credit, the OCA considered the same issue in R. v. Summers, says Cawkell. Read R. v. Carvery
The case deals with the Truth in Sentencing Act, which came into effect in February 2010. “This Act limited the credit given to an accused held in custody pending the outcome of their case to one day for every day spent in custody,” says Cawkell. Criminal Lawyers’ Assn Factum … Respondent’s Factum … Appellant’s Factum
Cawkell, partner with Hicks Adams LLP, says, “If successful, all sentences in Ontario (and likely Canada) will be affected if an accused is denied bail and held in custody.” Cawkell acted as an intervener for the Criminal Lawyers’ Association with Russell Silverstein.
Before the Act, two-for-one credit was generally applied under the argument that it reflected that remand facilities are harsher environments and parole is not available thus creating a greater punishment than someone who was out on bail before being convicted.
In R. v. Johnson, in which Cawkell was counsel, “Justice Melvin Green of the OCJ ruled the Truth in Sentencing Act constitutional, but suggested that enhanced credit beyond one for one would be appropriate in all cases because of the accused was denied statutory earned remission.”
He explains what that means is, “an out of custody accused sentenced to 60 days would be released after 40 days because both provincial and federal laws allow for the release of prisoners after they have served two-thirds of their sentence. Thus, an accused who was held in custody would be denied this reduction in sentence.”
Says Cawkell: “Justice Green and the NSCA both agreed that the Truth in Sentencing Act should be interpreted to allow for credit for those detained prior to the completion of their case on a 1.5-for-1 basis to make their sentence the same as those who benefit from the earned remission and who end up serving only two thirds of their sentence.
“In R v. Summers, Justice C. Stephen Glithero applied Johnson and gave credit for time spent in jail prior to sentencing on the basis of 1.5 to 1. The appropriateness of that is now at issue,” he says.
“Currently, the courts are split across Canada on whether to follow R. v. Johnson or apply the plain meaning of the Truth in Sentencing and its ratio of one for one,” he says. “The OCA prior to the Truth in Sentencing Act was a strong advocate for enhanced credit and even placed the ratio higher at two for one.
“This was endorsed favourably by the Supreme Court of Canada and became the norm across Canada. Parliament enacted the Truth in Sentencing in part because of a misplaced perception that detained accused were deliberately delaying their cases to ‘build up’ pre-trial custody knowing they would get two days credit for every one day in custody,” says Cawkell.
“This is a difficult case of statutory interpretation where at first blush, it would appear that Parliament meant to eliminate enhanced credit in most cases,” he notes. “Parliament did allow for enhanced credit if ‘the circumstances justified it’ as it is worded in the legislation but only to a limit of 1.5 to one.
“If the Court of Appeal is inclined to read the legislation liberally and in favour of the accused, the circumstances justifying enhanced credit will be available for all inmates who are denied the statutory earned remission,” says Cawkell. “This would be in keeping with Parliament’s stated intention of eliminating the legislation that allows for the release of offenders after serving two-thirds of their sentence, however, until that happens, it is unfair to deny those held in custody pending the outcome of their criminal matters this enhanced credit.”