The Supreme Court Addresses the Truth in Sentencing Act and the Retrospective Application of Legislation: R v Clarke
R v Clarke,  1 SCR 612 is part of the trilogy of cases recently released by the Supreme Court of Canada (“SCC”) addressing the issue of the Conservative government’s tough-on-crime policy expressed in the Truth in Sentencing Act, SC 2009, c 29 [Act]. As discussed in previous commentary from TheCourt.ca on R v Summers,  1 SCR 575 [Summers], the Act amends the Criminal Code, RSC 1985, c C-46 by capping the amount of credit judges are able to give prisoners for time served before trial.
Although prior to the Act there was no specific formula, it was expressed in R v Wust,  1 SCR 455, that certain factors usually meant that judges would credit prisoners with two days for every pre-trial day served. In contrast, under the current legislation, section 3 of the Act limits judicial discretion in sentencing to “a maximum of one day for each day” in custody unless “the circumstances” warrant an increase to a cap of 1.5 days per day.
Background and Decision
Mr. Clarke challenged this interpretation of the Act as not applicable to him, as his offences — which he pled guilty to — were committed before the legislation came into force. Mr. Clarke argued that the language of the Act was ambiguous and that Charter values should be read into the Act as giving it a prospective effect. Citing Justice Deschamps in R v Dineley,  3 SCR 272 [Dineley], the Court agreed that legislation should presumptively not apply retrospectively, however, as was noted in Dineley:
Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional. More specifically, where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable. New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively (para 10).
Thus “a clear legislative direction that a provision is to apply retrospectively” could displace this presumption of non-retrospective legislation (para 10). However, the SCC found that the language of s. 5 of Act was not ambiguous in specifying that the changes to the sentencing provisions of the Act “apply only to persons charged after the day on which those subsections come into force.”
Writing for a unanimous court, Justice Abella noted that this language was “clear” and “simple” in specifying that the Act was only to apply to those charged after the coming into force of the Act. Given the lack of ambiguity of the Act, the SCC reasoned that the Act must be read in terms of legislative intent. Justice Abella noted that although Mr. Clarke committed a break and enter and other crimes before the Act came into force, he was not charged until after the Act came into force, thus the new sentencing rules did in fact apply to Mr. Clarke.
Cruel and Unusual Punishment?
As noted above, before this enactment it had been routine for judges to give credit for time spent in custody at a higher rate of one day for every day. As Justice Abella explained, this judicial discretion in sentencing reflected the reality that,
unlike custody after sentencing, pre-sentence custody conditions were often harsher, remedial programs were unavailable and time spent in custody did not count for the purposes of early release (statutory release or remission)…credit was usually given at a rate of two days for every day served in pre-sentence custody, but could be higher depending on the offender’s pre-sentence custodial circumstances (para 5).
Justice Abella also reasoned that, in the absence of a Charter or abuse of process challenge, the court was limited to Mr. Clarke’s statutory interpretation argument. At the Ontario Court of Appeal level, Laskin J.A. noted that Clarke did not argue that s.5 infringes s. 11 (i) of the Charter, the provision that gives an offender “the right…to the benefit of the lesser punishment” if the punishment of an offence varies between the time the offence was committed and the time of sentencing (para 11). Thus it is possible that the applicability of the Act would have been more effectively challenged if Mr. Clarke had invoked the Charter.
“Truth in Sentencing” and Charter Challenges
Although it was noted that a Charter argument was not made under s. 11 (i) grounds for this particular offender, that does not preclude Charter arguments on other grounds based on this Act. It may be possible to challenge the legislation in future cases under a s. 12 Charter ground as being “cruel and unusual treatment or punishment.” That is because, as the courts have noted in the trilogy, the conditions of pre-trial custody are much harsher than in prisons and the provisions of the Act lead to longer sentences for similar crimes.
A claimant could also raise a s. 15 equality before the law and a s. 7 right to liberty argument, as the effect of the legislation could be seen to punish offenders in an unequal manner or deny liberty arbitrarily. As Justice Karakatsansis noted in Summers,
It has long been recognized that credit for pre-sentence detention is intended to ensure that individuals are punished equally, whether they are released on bail or remanded in custody prior to trial. Consequently, any circumstances that speak to the relative harshness of pre-sentence custody, as opposed to serving a sentence, are relevant (para 82).
This comment signals the inequality that offenders may face before the law, and the judicial discretion exercised in an attempt to mitigate its effects. That is, prisoners not granted bail (perhaps as a result of prior convictions) will be held in custody in conditions harsher than prisons. As Justice Karakatsanis explained in Summers, “crediting a single day for every day spent in a remand centre is often insufficient to account for the full impact of that detention” (para 2). In the absence of judicial discretion which considers these factors to adjust for the harshness of pre-trial conditions, the legislation is open to Charter challenges.
Indeed, the Charter issue may very well come before the SCC soon. In R v Nadli, 2014 NWTSC 47, and in R v Safarzadeh-Markhali, 2014 ONCA 627 (commentary from TheCourt.ca can be found here), successful Charter arguments were in fact made in regards to the Act, thus further complicating the current form of the Harper government’s “tough-on-crime” agenda. It will certainly be interesting to see more clarity on the Act from the SCC in the future. Despite a majority of Harper-appointed justices on the Court, it seems that Charter document “just keeps getting in the way” for the Conservative government.