R. v. Mathieu: Pre-Trial Custody And Its Effects On Sentencing

Although the recent pair of Supreme Court decisions regarding drug-sniffing dogs have (understandably) been attracting most of the attention, the Supreme Court last week handed down its decision in R. v. Mathieu, 2008 SCC 21, which is worth at least a brief note given its potential impact on sentencing.

R. v. Mathieu is actually a set of four cases (Mathieu, Jin, St-Germain and Monière), all concerned with the same issue: whether significant time spent in custody prior to trial and sentencing can invalidate a sentence of “less than two years.”

All four individuals were given a non-penitentiary sentence of less than two years, plus three years of probation. Mr. Mathieu, Mr. Jin and Mr. St-Germain all challenged their sentences on the basis that their probation contravened s.731(1)(b) of the Criminal Code (which allows a judge to order an individual to comply with a period of probation so long as their sentence of imprisonment is less than two years long), as the sum of their pre-trial custody plus their actual sentence added up to more than two years, and therefore that the judge had no authority to direct them to comply with a probation order. The Quebec Court of Appeal affirmed the sentences of Mr. Jin and Mr. St-Germain and reversed in part the sentence of Mr. Mathieu; Mr. Jin and Mr. St-Germain appealed, and the Crown appealed in the case of Mr. Mathieu.

Although s. 743.6(1.2) of the Criminal Code only allows for the possibility of delaying parole where sentences are two years or longer, at trial Mr. Monière was ordered to serve at least half of his sentence prior to becoming eligible for parole. The trial judge suggested that had Mr. Monière had not spent a significant period of time in custody, he would have been subject to a longer sentence. Put another way, the trial judge counted Mr. Monière’s pre-trial custody as part of his sentence. The Quebec Court of Appeal reversed in part Mr. Monière’s sentence, and the Crown appealed.

(The Supreme Court addressed the issue of whether pre-sentence custody should factor into the determination of whether or not a conditional sentence is appropriate in R. v. Fice, 2005 SCC 32. In Fice the court held in a 5-2 decision that pre-sentence custody should be considered. However, the court was careful to limit the scope of their decision only to conditional sentences.)

In a unanimous decision, the Supreme Court dismissed the appeals in Jin, St-Germain and Moniere, and upheld the appeal in Mathieu, dismissing Mr. Jin, Mr. St-Germain and Mr. Matheiu’s argument that their probations should be negated, and agreeing with Mr. Matheiu that the trial judge had no right to delay his parole.

Writing for the majority, Justice Fish summarized the court’s decision, at para. 18:

Moreover, it is not solely because of the law and s. 719 of the Code [here, Justice Fish is referring to s. 719(3), which allows judges to consider pre-trial custody when determining a sentence] that pre-sentence custody is taken into account as a factor in sentencing. This result can also be inferred from a conceptual interpretation of pre-sentence custody. Pre-sentence custody generally refers to custody before the verdict is rendered, at a time when the accused is presumed innocent. In the context that concerns us here, this custody is, in principle, preventive rather than punitive. Pre-sentence custody cannot really be characterized as a “sentence”: if the accused is convicted, the judge does take it into account as a relevant factor in sentencing, but what if the accused is acquitted? Whether the pre-sentence custody was part of a sentence for the purposes of the Code would thus fall to be determined retroactively in light of the verdict — a subsequent and separate event.

Although the court’s reasoning here is straightforward, this writer must take some issue with it; regardless of whether pre-trial custody is intended to be “preventive rather than punitive,” its effect is clearly punitive. I think the question of whether principle trumps result in this case is bound to be eventually revisited, if only because time spent in punitive custody is functionally not far removed from time spent in prison; the idea that pre-trial custody must be held up as a distinct entity from sentencing simply seems unfair in many circumstances. That being said, the court’s willingness to allow judicial discretion on this matter is encouraging, as is their interest in ensuring that the power to delay parole is strictly limited.