Criminal Law

SCC ruling restores fairness, says Gadhia

Toronto criminal lawyer Roots Gadhia says the most recent Supreme Court of Canada decision on sentencing will help protect the rights of individuals who come before the justice system.

The decision in R. v. Summers restores the amount of pre-trial credit that accused persons can receive for time spent in custody before they are convicted and sentenced.

The unanimous 7-0 ruling is the latest in a series of decisions from the high court that have struck down key aspects of the Conservative government’s tough-on-crime agenda.

Gadhia says the fact that the Supreme Court has rejected a number of initiatives of the Harper government in recent weeks reveals that the highest court “isn’t pleased with those strategies that Prime Minister Stephen Harper is trying to push through and they’re speaking out loudly and clearly that they’re not impressed.”

She says the most recent decision deals with an initiative that took away the discretion from judges, who could show compassion to an accused individual and their disdain for the overcrowding and horrible conditions that people experience while they await trial.

Justice Andromache Karakatsanis of the Supreme Court wrote in the decision that the court considered both the Truth in Sentencing Act and the general principles and purposes of sentencing.

“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,” Karakatsanis states. “This is particularly so, given that vulnerable and impoverished offenders are less able to access bail.”

The Truth in Sentencing Act, passed in 2009, restricts judges from giving double credit for pre-trial custody time for those accused with a crime – in which each day behind bars before a trial counted as two days of their sentence. The act stipulated one day in pre-trial custody is credited towards the sentence, but in certain circumstances, it allowed 1.5 days.

Gadhia says removing the double credit raised issues of fairness in that it resulted in more people pleading guilty instead of going to trial, regardless of the evidence that was before the court.

“It affected numerous individuals who, rather than languish in custody awaiting trial, chose to resolve their matter because there was no benefit,” she says.

The biggest problem with the one-for-one rule, says Gadhia, is that it “took away, to an extent, an individual’s  opportunity to exercise the right to a trial and the presumption of innocence until proven guilty."

And now that the high court has struck down the one-for-one rule, she said there are questions about what it will mean for those people who were sentenced when it was in effect.

“So many people have been sentenced without the benefit of the two-for-one credit and are serving out sentences that would have been mitigated otherwise,” she says.  “Will all those individuals who have been  sentenced since 2009 want to bring their matters back to the courts?”

As it stands right now, Gadhia says,  that issue has not been addressed by the SCC.



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