#4 R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, (companion cases of: R. v. Carvery, 2014 SCC 27, [2014] 1 S.C.R. 605 and R. v. Clarke, 2014 SCC 28)
One sentence explanation:
The Truth in Sentencing Act does not change the discretion of courts to credit time spent in custody awaiting trial at an enhanced rate capped at 1.5 to 1 in most circumstances; to find otherwise would result in an absurd result where a person presumed innocent and awaiting trial would serve more time than a person convicted and serving a sentence under the same scenario.
The case and its significance:
While the accused was awaiting his trial, he spent ten and a half months in custody. Upon his conviction, the sentencing judge awarded him credit for that time at a rate of 1.5 days for every day spent in custody. It was done on the basis that none of this time would otherwise count towards his eligibility date for parole that is statutorily mandated at two third of a total sentence. The Court of Appeal agreed and dismissed the appeal.
The Crown appealed to the Supreme Court of Canada and argued that the newly passed legislation prevented a judge from doing this unless “the circumstances justify it” which they argued they did not in the present case.
The Supreme Court dismissed the appeal and upheld the credit provided to Mr. Summers at a rate of 1.5 to 1. Such a rate is capped as the maximum under the new provisions. In the companion case of R. v. Clarke, 2014 SCC 28, this cap was upheld as the legislative scheme was clear. The Court expressed that barring a conceptional challenge to the legislation (enticing?), the cap of 1.5 is the maximum a judge may afford an offender.
They noted that up to the passing of this legislation, the practice of crediting pre-trial custody was standard in sentencing. It recognized the need to accommodate parity between a person awaiting their trial, and someone who is found guilty at an earlier stage and awarded the benefit for statutory release after a portion of their sentence is served.
As stated: “[c]rediting 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).” Therefore, the loss of early release alone will generally be sufficient to find that the “circumstances” justify it under s.719(3).
The Court upheld the rationale to cap pre-trial custody credits under s.719(3.1). They found that is it always open to a trial judge to find, in addition to the enumerated reasons under 719(3.1.), that a person should be denied enhanced credit on the basis that the offender would have been denied early release in any event.
The onus to obtain enhanced credit is upon the offender, although in most cases it will be a burden easily established without the need to call further evidence. As stated, “extensive evidence will rarely be necessary” and a practical approach was encouraged by the Court.
