Supreme Court restores pre-trial credit for offenders; yet another SCC decision against recent Government initiatives

R. v. Summers, 2014 SCC 26:

The Truth in Sentencing Act, passed in 2009, changed the statutory regime governing credit for pre‑sentence detention.  Parliament modified s. 719(3) of the Criminal Code to limit credit for pre‑trial custody “to a maximum of one day for each day spent in custody”.  Parliament also provided in s. 719(3.1) that despite that limit, “if the circumstances justify it, the maximum is one and one‑half days for each day spent in custody”.

                    In this case, the accused was on remand for 10.5 months.  The sentencing judge assigned a credit calculated at a rate of 1.5 to 1, on the basis that pre‑trial detention did not count towards parole eligibility for the accused. The judge found that this was a circumstance justifying credit at a ratio of 1.5 to 1 under the Criminal Code.  The Court of Appeal agreed and dismissed the appeal.

                    Held:  The appeal should be dismissed.

                    When an accused person is not granted bail, and must be remanded in jail awaiting trial, the Criminal Code allows time served to be credited towards a resulting sentence of imprisonment.  Historically, the Codeimposed no restrictions on the reasons for giving credit, nor the rate at which credit was granted.

                    Courts generally gave enhanced credit, at a rate higher than one day for every day of detention, for two reasons.  First, statutory rules for parole eligibility and early release do not take into account time spent in custody before sentencing. Therefore, the quantitative rationale recognized that pre‑sentence detention almost always needs to be credited at a rate higher than 1:1 to ensure that an offender who is released after serving two thirds of his sentence serves the same total amount of time in jail whether or not he is released on bail.  Second, thequalitative rationale for enhanced credit recognized that conditions in detention centres tended to be harsher than corrections facilities.  As a result of these twin rationales, a practice developed over time of granting credit for pre‑sentence detention at a rate of 2:1.

                    The Truth in Sentencing Act caps pre‑sentence credit, but does not alter the reasons for which it may be assigned.  Section 719(3.1) is free of any language limiting the scope of what may constitute “circumstances” justifying enhanced credit.  While Parliament clearly turned its attention to the circumstances under which s. 719(3.1) should not apply, the provision is devoid of any limiting language which would support the position that “circumstances” resulting from the operation of law, and specifically lost eligibility for early release and parole, could not justify enhanced credit.

                    While s. 719(3.1) is structured as an exception to s. 719(3), there is no general rule of statutory interpretation that the circumstances falling under an exception must be numerically fewer than those falling under the general rule. Therefore, it is not a concern that most remand offenders will qualify for enhanced credit on the basis of lost eligibility for early release or parole.  Further, an interpretation of “circumstances” that includes loss of eligibility for parole and early release does not render s. 719(3) redundant.  Where an accused falls under an explicit exception to s. 719(3.1), the one‑for‑one cap set by s. 719(3) will apply.  In addition, the structure of s. 719 is consistent with the rationales for the existence of pre‑sentence credit.  Section 719(3) reflects the general rationale for giving credit; any time in jail should generally be credited day for day.  On the other hand, s. 719(3.1) reflects the rationale for enhanced credit. Crediting a day in pre‑sentence custody as a day served is insufficient to account for both loss of eligibility for parole and early release (circumstances with quantitative impact) and the harshness of the conditions (circumstances with qualitative impact). 

                    The practice of using the former s. 719(3) to award enhanced credit for both the quantitative and qualitative consequences of pre‑sentence detention was deeply entrenched in our sentencing system.  It is inconceivable that Parliament intended to overturn a principled and long‑standing sentencing practice, without using explicit language, by instead relying on inferences that could possibly be drawn from the order of certain provisions in the Criminal Code.  Rather, it seems more likely that Parliament intended to do what it did explicitly.  The amendments clearly impose a cap on the rate at which credit can be awarded, at 1.5 to 1.  Having made its intention so clear on that point, Parliament gave no indication it intended to alter the reasons for which enhanced credit can be granted.  Neither the language of the provision nor the external evidence demonstrates a clear intention to abolish one of the principled rationales for enhanced credit. 

                    As the legislature is presumed to have created a coherent, consistent and harmonious statutory scheme, s. 719 should be interpreted in a manner that is consistent with the principles and purposes of sentencing set out in the Criminal Code.  A rule that results in longer sentences for offenders who do not obtain bail, compared to otherwise identical offenders is incompatible with the sentencing principles of parity and proportionality.  This is particularly so, given that vulnerable and impoverished offenders are less able to access bail.

                    The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely.  However, if it appears to a sentencing judge that an offender will be denied early release, there is no reason to assign enhanced credit for the meaningless lost opportunity.  The onus is on the offender to demonstrate that he should be awarded enhanced credit based upon his pre‑sentence detention.  Of course, the Crown may challenge the inference that the offender has lost eligibility for parole or early release, justifying enhanced credit.  Extensive evidence will rarely be necessary.  A practical approach is required that does not complicate or prolong the sentencing process.