Tension between judges and the Harper government ratcheted higher Wednesday, as the courts approved a cornerstone of the federal tough-on-crime agenda only to turn around and map out a route for circumventing it.
An Ontario judge rejected a major challenge to the constitutionality of federal laws slashing enhanced credit for inmates who languish in pretrial custody.
However, the jurist - Ontario Court Judge Melvyn Green - promptly suggested that judges use their discretion to reduce overall sentences in order to reflect the harsh conditions that abound in provincial remand centres.
Judge Green was critical of the government for legislation based on what he called a groundless fear that defendants drag their heels in order to build up so-called dead time and take advantage of enhanced credit.
"The abuse that attracts much of the government's concern appears more chimeric than real," he said.
What authorities really ought to focus on, he said, is the fact that the unfairness of pretrial custody means that two individuals with identical cases can be punished in markedly different ways. If these discrepancies were widely known, Judge Green said, it "could only contribute to a sense of public outrage or abhorrence; a palpable sensation of unfairness.
"There appears no rational connection between the physical location at which one awaits one's trial and the duration of custody one ultimately serves for the offence," he said. "… Why should accused persons denied bail end up serving longer global periods of incarceration than those released pending their trials?'
While government has a legitimate right to restrict pretrial credit, judges have an equal right to use their wide sentencing discretion to treat defendants leniently if they have been locked up in oppressive conditions awaiting trial in an overcrowded court system, Judge Green said.
"Remand centres are also notoriously overcrowded and unlike prisons lack recreational and athletic programs and afford only very limited access to the outdoors and related facilities," he said. "Remand custody is notoriously 'hard time' and, in light of the paucity of facilities and programs, rightly described as 'dead time.' "
Sentencing judges confront two major inequalities, Judge Green said. The first is that awful conditions prevail in remand centres. The second is that dead time in pretrial custody is not included in a prisoner's earned remission and parole eligibility, should he eventually be convicted.
Prior to the new laws, sentencing judges lumped both inequalities together and subtracted two or more days from a sentence for every day spent in remand.
Judge Green instead split the inequalities of dead time into two separate categories. He said that sentencing judges can first reduce a sentence they intend to impose in order to reflect the harsh conditions of remand custody. Then, he said, they can then apply the law's new 1.5-to-1 credit solely for the purpose of replacing "lost" parole consideration.
A leading sentencing expert, University of Toronto criminologist Anthony Doob, said that Judge Green has executed an extraordinary coup. The Harper government can proudly claim that its legislation was upheld, he said, yet inmates will continue receiving extra credit at a rate that largely mirrors what they were getting in the past.
"It is a clever way of not challenging the legislation, while still challenging the legislation," Prof. Doob said. "It's an interesting way of doing it."
The legislation and subsequent court ruling come in the midst of long-standing friction between members of the judiciary and Stephen Harper's government. There is a widespread belief within his party's ranks that activist judges have used the Charter of Rights as a tool to usurp political powers and rewrite legislation as they choose.
Hostility has repeatedly surfaced over topics ranging from the judicial appointment process to specific judgments involving child pornography, immigration and the rights of the criminally accused.
Official reaction on both sides to this decision, however, was positive. A federal Department of Justice spokesman, Pamela Stephens, said Tuesday: "We are pleased with the decision. Law-abiding Canadian families deserve to have confidence in their justice system. Our government is delivering on our commitment of ensuring that criminals serve the sentence that reflects the severity of their crime."
At the same time, Criminal Lawyers' Association president Paul Burstein, a harsh critic of federal sentencing measures, was equally positive.
"The decision will provide judges across Ontario with some very helpful guidance on why a presumption of enhanced credit remains the appropriate response to pre-sentence custody - and why the harshness of those detention facilities may still serve to mitigate a sentence," he said.
Mr. Burstein said that the judgment makes it crystal clear that under-funding "has created unnecessarily harsh conditions for pre-trial detainees that are much more oppressive than what society imposes upon offenders as part of an actual sentence of imprisonment."
The new federal law mandated one-for-one credit, but permitted judges to raise the credit to 1.5 days for one day in exceptional circumstances.
Judge Green said Tuesday that unfairly depriving remand prisoners of parole constitutes just such an exceptional condition.
When it comes to reducing actual sentences because of harsh conditions in remand centres, providing evidence of these conditions, "may not prove an arduous evidentiary burden."
His ruling came in a test case launched by lawyers for Marvin Johnson, a Toronto man charged with selling $20 worth of cocaine to an undercover police officer on Feb. 26, 2010.
Based on his previous record, Mr. Johnson, 41, was denied bail. He pleaded guilty to cocaine trafficking last May and has been in custody since then awaiting sentence as his lawyers challenged the new federal laws.
Prior to the new law, he could have expected that his sentence would reflect a 2:1 credit for his time in pretrial custody.
Judge Green reduced the 18-month sentence that he would have imposed on Mr. Johnson to 12 months, based on a calculation of a 1.5:1 credit on the 12 months he spent in pre-trial custody. In effect, it means that Mr. Johnson will be released on Friday.
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