The Supreme Court Clarifies Sentencing Rules: R v Summers
In 2009, the Conservative government introduced legislation called the Truth in Sentencing Act, SC 2009, c 29 (the “Act”). The Act, which came into force in 2010, amended the Criminal Code by capping the amount of credit judges were allowed to give prisoners for time served before the prisoners’ trials. While it had been routine for judges to credit prisoners with two days for every pre-trial day, the Act set a cap at 1.5 days. According to Justice Minister Rob Nicholson, the Act sought to disallow any credit at all for prisoners who had been denied bail.
The Act is part of Prime Minister Stephen Harper’s tough-on-crime platform, which has sought to put limits on judicial discretion in the courts. It was tested at Supreme Court of Canada this past April in the case R v Summers, 2014 SCC 26 [Summers]. In a 7-0 decision written by Justice Karakatsanis, the Court ruled that judges continue to have discretion to grant credit to prisoners, including those denied bail. It stressed the importance of treating prisoners fairly, emphasizing that individuals who have had their liberty taken away from them are vulnerable and deserve to be treated with human dignity.
Facts and Judicial History
In July 2010, Sean Summers shook his infant daughter, who died three days later. He was arrested and held in custody on a second-degree murder. In April 2011, the charge was changed to manslaughter. Summers pled guilty in May 2011. The time he spent in custody before sentencing was 10.5 months.
In the Ontario Superior Court of Justice, the sentencing judge found that the fact that the pre-trial days did not count towards parole eligibility was sufficient to allow a credit of 1.5 pre-trial days to 1 post-trial day. The Ontario Court of Appeal agreed and dismissed the Crown’s appeal. The Attorney General of Ontario then appealed the case to the Supreme Court of Canada.
Part of the reason the Court wanted to review this case is that lower courts were unsure of how to interpret the amendment brought by the Act. Sentencing judges needed clarification on when it would be appropriate to grant the enhanced credit at a rate higher than a 1 to 1 ratio. Specifically, the Court aimed to address the issue of whether ineligibility for early release and parole while in pre-trial custody would qualify as a circumstance justifying enhanced credit under the s. 719(3.1) of the Criminal Code.
The Attorney General of Ontario argued before the Court that the loss of eligibility for parole and statutory release does not qualify as a circumstance that would allow an enhanced credit. It called for a very narrow use of the exception, rather than the broad one adopted by the lower courts in the case.
Justice Karakatsanis stressed that granting offenders more than a day credit was a long-standing practice grounded in principles of fairness. The reasons for the credit are because life in a remand centre differs quantitatively and qualitatively from life in prison. Quantitatively, days served do not count towards parole, earned remission, or statutory release. Qualitatively, remand centres do no offer rehabilitation programs and often suffer from overcrowding.
The Act itself does not address when extra credit should be available. The only guidance it provides is that enhanced credit should be allowed when “the circumstances justify it” (s 719(3.1)). In a previous case, R v Wust,  1 SCR 455, the Court found that the loss of eligibility for early release and parole was sufficient to justify granting enhanced credit.
In Summers, Justice Karakatsanis found that the use of the credit does not have to be limited to exceptional circumstances. As was noted by the lower courts in the case, the language of the provision is not limiting. The ruling notes, “The legislature could easily have provided that only ‘exceptional circumstances’ or ‘circumstances other than the loss of eligibility for early release and parole’ justify enhanced credit” (Summers, para 37). Parliament did not do so in this section, but the Criminal Code does use limiting language in other sections. Justice Karakatsanis’s ruling notes that the provision does expressly address some circumstances that do not qualify for enhanced credit, such as prisoners who contravene bail conditions. If the amendment had intended a further limitation, it could have explicitly added more exclusions.
The Crown wanted the courts to limit the use of the credit to exceptional cases only, despite the fact that the word “exception” was not used in the text of amendment. As noted by Justice Karakatsanis, “Parliament does, of course, have the power to exclude these circumstances from consideration (barring a constitutional challenge)” (ibid, para 56). A specific detailing of circumstances which qualified as exceptions would surely have been struck down by the Supreme Court if the list had not included lost eligibility for early release and parole, given that the practice of granting enhanced credit for such a loss was recognized and endorsed in Wust.
A draft with such a list would have likely, as Justice Karakatsanis suggests in Summers, failed a constitutional challenge. Because the individuals in custody have already lost their liberty, the justice system must look to the penal principle that suggests that any ambiguity in a criminal law must be read in favour of the prisoner. The government, with its tough-on-crime position, seems to forget that there are principles of fundamental justice that protect prisoners from being subjected to arbitrary detention practices.
Justice Karakatsanis also pointed out that prisoners who are not able to secure bail are often those without family, friends or financial support. These individuals, then, are among the most vulnerable in our society. Without access to enhanced credits, they would be burdened by harsher sentences because of their societal status. This result would be grievously unfair.
The Court ruled correctly in R v Summers when it supported the ongoing discretion of judges to decide what circumstances qualified for enhanced credit. Canada cannot allow a system that deprives individuals of their liberty and then further punishes some of them by allowing for their sentences to be treated unequally. One of the roles of the justice system is to protect the vulnerable, not to allow them to be further burdened by unfair sentencing practices.