Imagine the same 7-Eleven store, in the same city, on the same night, having the same chocolate bar (let's say a Snickers) shoplifted by two different individuals within hours of one another. Call the first thief Johnny Vancouver, and call the second thief Johnny Alberta.
Suppose that both Johnnies - Vancouver and Alberta - are around the same age and have the same basic background. Add to the mix that neither guy is an angel - they've each had their run-ins with the law and even some jail time for similar thefts. But by no means is either one a violent or serious criminal. Other than an annoying habit of petty theft, maybe to support a drug habit, they are otherwise harmless. Now consider this question: should they be treated the same in a sentencing, or differently?
This hypothetical example is set up to be pretty straightforward. If there is a single, driving, fundamental principle of sentencing in Canada, it is called "proportionality." Similar offenders, who commit similar offences, in similar circumstances, should be treated similarly. If one Johnny is treated with extreme leniency while the other punished harshly, members of the public may begin to question whether the criminal justice system is fair.
So far, nothing controversial - most people will agree. They may disagree on what the right sentence is - some believing in leniency and others believing in punishment. But without something that either makes their offences different (for example, if one of them had used violence and the other had not), or something that makes the offenders different (for example one has an unbroken record of property offences for years while the other has never done it before), basic fairness is that they should receive similar punishment.
This principle was arguably upset by one of the earliest features of this Conservative government's "tough on crime" agenda. The Truth in Sentencing Act was designed to fundamentally alter the notion of "credit for time served" in criminal sentencing.
For decades it had been an accepted principle that if you are arrested for an offence and end up spending time in custody before you are found guilty, then your sentence should take that "pre-trial custody" or "dead time" into account. Again, it's only fair. Still, so far, so good.
Another principle that had been recognized for decades was that there were important differences between dead time and time served after sentencing. One of the most important differences is something called "remission". When a person is sentenced to prison for a crime, he is encouraged to behave well in the institution. That includes following the rules, doing as he's told and being non-violent.
This makes sense for a lot of reasons. First of all, one reason people are sent to prison is to begin their rehabilitation. Prisons were called "reformatories" in the nineteenth century because it was hoped that a person's "reform" would begin there. A second reason for encouraging good behaviour is safety within the jail; safety for other inmates, and safety for the guards and other staff that have to work there.
One way of encouraging "good behaviour" is to reward it with remission. For the vast majority of well-behaved prisoners, they earn one day off their sentence for every two days of good behaviour. So, if someone is sentenced to three weeks and behaves well, he will be released in two weeks; or for a sentence of twelve months, good behaviour will earn release at eight months.
One of the most important differences between an actual sentence (time served after the sentencing has happened) and dead time (time served before the sentencing), is that this idea of remission does not apply to dead time and never has. If a person spends two weeks in jail and then pleads guilty, she will not get credit for three weeks, unless the Court "equalizes" it somehow.
Because of this (and other reasons relating to the conditions of pre-trial centres vs. regular jails), for decades the Courts have generally not only given people credit for dead time, but have "enhanced" it in recognition of this difference. Although the ratios have varied for different reasons, it was most common for people being sentenced to receive "double credit" for "time served" or "dead time."
The Truth in Sentencing Act changed that. The government enacted the law responding to what it said was widespread dissatisfaction with the "dead time" credit regime and to recognize that the public thought it was bogus. The government concluded that there were thousands of guilty people delaying their sentencing so that they could spend time in custody and then "pull the trigger" at a sentencing and get out with time served, using the "double credit" principle that had evolved.
As a result, the rules changed and the new normal became an expectation that an offender being sentenced will receive credit for no more than one day credit for each day served. In certain circumstances, that can be increased, but only to one and a half days credit for each day served, and in other circumstances the "one to one" ratio is the most that a prisoner could be awarded. The burning debate (as you will see below) became the following: is the loss of remission, on its own, a legitimate "circumstance" justifying an increase?
Before describing the debate, let's return to the example of Johnny and Johnny, Vancouver and Alberta to see how it is that the loss of remission could lead to a problem.
Suppose each Johnny gets caught and arrested. Looking at their records for theft, police decide not to release them, and to take them to jail so that a judge can decide whether to grant them bail or not.
That afternoon, they appear in Court, one after the other. Johnny Vancouver goes first. His parents come to Court and they tell the judge that they have found a great drug recovery house for him, and that they are willing to post bail in the amount of $1,000 to guarantee his good behaviour - if he screws up, they lose their money. The judge agrees to let him out and off he goes.
Johnny Alberta's parents are not there. He does not live anywhere near the Court - in fact, he lives in Edmonton. He was just in B.C. for the weekend. The judge concludes that if he lets Johnny Alberta out, Johnny may skip town and never come back. Because of that - and nothing else - the judge orders Johnny Alberta detained. It's not that Johnny Vancouver's theft is any different; remember - same store, same night, same type of candy. It's also not that Johnny Alberta is any worse of an offender than Johnny Vancouver - it's just that one lives nearby and has family support, and the other is further from home.
Fast forward two months later and the same judge has the same two Johnnies back. They have both decided that the evidence is overwhelming and that they cannot beat the charge. Both want to plead guilty. Because the prosecutor is fair, he comes up with the same sentence for both - 60 days in jail. Because the judge is fair, he agrees that this is appropriate, so that's the sentence each Johnny gets.
Coincidentally, it's been exactly 60 days since the fateful night when this all happened. Johnny Alberta is sentenced to 60 days; he has served 60 days; he gets credit for 60 days; and out he goes. Johnny Vancouver hasn't spent any time in jail yet (apart from that first night), so when he is sentenced to 60 days, in he goes.
But because Johnny Vancouver's time is "post-trial", and because he behaves himself in custody (as Johnny Alberta did), he walks out of jail after 40 days, because he earned that remission. Johnny Alberta, who did the same crime and was sentenced to the same time; who behaved just as well in jail as Johnny Vancouver did, had to do 60 days.
Is that fair?
Surprisingly, this issue has generated a lot of controversy in the Courts. Many trial courts, particularly in British Columbia, saw the changes in the legislation as a clear indication from Parliament that the system has been overhauled, and unless an accused person can show that his or her conditions in pre-trial custody were truly horrendous, then the presumption should be that, at best, an offender in Johnny Alberta's position can expect is one day credit for each day spent in custody.
That view was not universal, however. In three separate judgments from the Courts of Appeal for Manitoba, Nova Scotia and Ontario (each province's highest court), the Courts disagreed. Largely citing the problem identified in this blog post, they decided that Parliament had not drafted the law the way others thought. They determined that the loss of remission alone can justify awarding enhanced credit. It did not matter that that might mean that the vast majority of offenders would thereby likely get enhanced credit. On the basis of simple interpretation of the statute, they ruled, that was the law.
And in one interesting and very recent ruling, the Territorial Court for the Northwest Territories held that they system was so unfair that it was unconstitutional, particularly in that it implicitly pressured people into not exercising their right to a bail hearing, for fear that they would be detained for a reason falling within one of the narrow exceptions that deprives people of even an opportunity to apply for 1.5 credit. That judge struck the law down.
The lone notable standout was the Court of Appeal for British Columbia. In a "split" decision in which two judges sided with the Government and one wanted to follow the other Courts, that Court ruled that Parliament had intended a major change, and that that major change meant that the vast majority of "Johnny Albertas" were out of luck, unless they could point to something over and above the loss of remission.
Earlier this morning, the debate was settled (at least for now) by a unanimous decision of the Supreme Court of Canada upholding the Ontario Court of Appeal, and implicitly rejecting the position of the B.C. Court. In doing so, the Supreme Court squarely addressed the Jonny Vancouver / Johnny Alberta disparity and found that it created unequal and disparate sentences that offend the proportionality principle identified above as being central to sentencing in Canada.
The Court found that it is difficult to see how different, or disparate, sentences can be "proportionate to the gravity of the offence and the degree of responsibility of the offender" when the length of incarceration is also a product of the offender's ability to obtain bail, which is frequently dependent on things that have nothing to do with the offence or the offender's degree of responsibility. Using an example that goes beyond the geographical example I've used in this blog, the Court pointed out that Aboriginal people (or, arguably even just the poor) are more likely to be denied bail. Indeed, the statistics bear that out, and the result is that such members of the community consistently get longer, harsher sentences, not because of the wrongfulness of what they did, but because of their isolation and inability to pay.
These observations are important, because they engage more fundamental principles that underlie our legal system, as opposed to dry, easy-to-amend statutory interpretation issues (not unlike what the Court did in the Nadon Reference). For that reason, it may be more difficult for the Government to find a way around the Court's decision.
The decision, from our country's highest court, strikes another blow at the Conservative government's policy of toughness on drugs, guns and terrorism. It will be interesting to see if there is a legislative response to get around it.