A simmering rebellion by judges against the Conservative government's attempt to stop them from routinely giving extra credit for time served in jail before trial is about to burst into the open.
Later this month, the Supreme Court of Canada will hear three cases in which judges in Ontario and Nova Scotia pushed back against a key component of the government's tough-on-crime strategy – the Truth in Sentencing Act, which bars judges from giving two days credit for each day in pretrial custody, as they had routinely been doing.
Those three cases reflect a now-routine practice in several provinces in which judges give 1.5 days credit, to make up for overcrowding, lack of programming and especially the lack of credit toward parole and other forms of early release. The Truth in Sentencing Act sets the maximum credit at 1:1, but also says judges can give up to 1.5 days "if the circumstances justify it." Trial judges say the circumstances nearly always justify it.
The Supreme Court hearing comes as judicial pushback against the government's tough-on-crime strategies is rising. Judges in several provinces are refusing to make impoverished criminals pay a mandatory financial penalty meant to fund victim services. Ontario Court Justice Colin Westman has spoken out against it in media interviews. Another Ontario Court judge, Melvyn Green, published an article this year in the Criminal Lawyers' Association newsletter saying that a spate of new laws is casting "a dark shadow on the sentencing principles of proportionality and restraint." And the government's three-year mandatory minimum penalty for illegal gun possession was struck down this fall by Ontario's highest court as a violation of the Constitution.
One of the Ontario cases before the Supreme Court features a 19-year-old, Sean Summers, convicted of manslaughter after he shook his three-month-old daughter to death. "I just say it's absolutely unfair to treat someone who is presumed to be innocent more harshly than we would treat someone who has been found to be guilty," Justice C. Stephen Glithero of the Ontario Superior Court wrote. He gave Mr. Summers 1.5 days credit for each day of the 10 months he served awaiting trial, which shortened his eight-year sentence by 15 months.
Much of the pushback from judges is meant to protect their discretion over sentencing in the face of government attempts to impose tougher punishments on criminals.
The Truth in Sentencing Act "was a declaration that judges' sentencing choices didn't please the government, so their discretion is gone," Toronto criminal lawyer Frank Addario said. But "judges are programmed to think independently. That's the essence of judging."
Others say judges are not following the law.
"They are sowing disregard for the letter of the law, a disregard that is fatal to the regard upon which they depend to do their job and to be taken seriously," Toronto lawyer Gary Clewley, who has represented police unions and individual officers, said in an interview.
The Truth in Sentencing cases have worked their way up through appeal courts in several provinces. Ontario, Nova Scotia, Manitoba and Quebec appeal courts have supported the routine use of extra credit; some of those courts said the judges were simply applying Canada's sentencing principle of proportionality in a fair way.
British Columbia's appeal court, however, ruled 2-1 against routine use of 1.5 days credit for each day served, saying judges need to "honour Parliament's intention."
Paloma Aguilar, a spokesperson for Justice Minister Peter MacKay, said the cap on credit for time served is meant to shore up public faith in the justice system. The government is "committed to all measures that will ensure greater truth in sentencing because we know Canadians lose faith in the justice system when the punishment does not fit the crime," she said.
Canada has more people in jail awaiting trial than it has convicted criminals in jail. The provinces say that an overly generous system of credit persuaded offenders to draw out the legal process, contributing to clogged prisons. But criminal lawyers say the problem of overcrowding has persisted in the four years since the Truth in Sentencing Act took effect.