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Justice Richard Wagner, right, delivers a speech as his fellow judges take part in his welcoming ceremony at the Supreme Court of Canada in Ottawa on Monday, December 3, 2012 (Blair Gable/The Canadian Press)

Justice Richard Wagner, right, delivers a speech as his fellow judges take part in his welcoming ceremony at the Supreme Court of Canada in Ottawa on Monday, December 3, 2012

(Blair Gable/The Canadian Press)

What’s at stake in Canada's criminal sentencing debate Add to ...

Judges routinely used to give offenders double credit for the time they served in jail before sentencing. One year counted as two. Sometimes, judges even gave offenders triple credit, if prison conditions were especially bad.

The Conservative government passed the Truth in Sentencing Act in 2010 because it viewed the system as overly generous toward offenders. The law says the maximum credit is one day for each day served in custody before sentencing. It allows 1.5 days credit “if the circumstances justify it.” Judges in several provinces have been giving this to offenders frequently, against the federal government’s wishes. Ottawa has appealed two cases, and the Supreme Court of Canada’s ruling on Friday will determine whether judges have the right to continue doing so.

Why it matters:

Test of judicial pushback: The government has been trying with this law and others to limit judges’ discretion in sentencing. And judges have pushed back, in rulings that evade the spirit of some of these laws, in constitutional rulings and even in the media. “Common-law judges are trained to think in terms of discretion; they’re not trained to think in terms of ticking off boxes,” Toronto lawyer Frank Addario says. When Parliament replaces judicial discretion with mandatory rules, it “leaves no safety valve against oppressive consequences.”

Bellwether of the Harper agenda: Six of the court’s eight members were appointed by Conservative Prime Minister Stephen Harper. The bill is a centrepiece of the government’s tough-on-crime agenda. Its title suggests that the legal system has been lying to people about how jail terms are calculated. The law rolls back a practice common in Canada for decades. How Mr. Harper’s appointees interpret this law may signal how other Conservative laws, such as mandatory minimum sentences for illegal gun possession, will fare when they reach the Supreme Court.

Costs: If the government wins, prisoners will have to serve more time. Canada’s former Parliamentary budget officer estimated that the extra costs of those longer sentences could be in the billions of dollars for federal and provincial governments.

Equity versus public confidence: By law, inmates of federal and provincial jails receive automatic deductions of one-third of their sentences. A 90-day term ends after 60 days. Judges say they have given routine extra credit for time spent in jail before sentencing to reflect the same rate of deductions: 60 days is credited as 90. Andrew Faith, a lawyer for the John Howard Society, told the Supreme Court that those who are denied bail tend to be poor, homeless, mentally ill and aboriginals who lack resources. “Why should the people who can’t afford to make bail serve more time in custody than the people who can?” The federal justice department argues that limiting extra credit enhances public confidence in the justice system.

Stephen Harper’s losing streak: The Conservative government lost big at the Supreme Court last month. Mr. Harper’s choice for the ninth spot on the court, Justice Marc Nadon, was ruled ineligible by a 6-1 count; a law that retroactively limited parole for non-violent offenders was struck down 8-0; and federal inmates were given wide latitude to go to court to challenge the conditions of their detention, also 8-0. Not to mention a 9-0 ruling against three major prostitution laws in December. All governments lose cases, but this big, this often?

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