Law Times

LaW TIMeS • NOVeMBeR 23, 2015 Page 3 www.lawtimesnews.com R. v. Norman Judge deals another blow to Truth in Sentencing Act BY NEIL ETIENNE Law Times he Truth in Sentencing Act took another hit this month as the On- tario Superior Court of Justice found sections denying enhanced credit to an offender whose bail has been cancelled doesn't survive s. 1 of the Charter of Rights and Freedoms and is of no force or effect. The decision by Justice Robert Goldstein came on Nov. 6 in R. v. Norman. "Pursuant to s. 719(3.1) of the Criminal Code if a person is in custody awaiting trial or sentence because his or her bail has been cancelled then he or she is not entitled to that enhanced credit. The offender is only en- titled to credit on the basis of one day for every day of pre-sentence custody. Is that provision con- stitutional? In my view it is not," wrote Goldstein. It's the latest blow to a piece of legislation that has already come under some criticism from the courts and lawyers. "It isn't sur- prising that judges are declaring many of the Tory crime bills un- constitutional," says defence law- yer Daniel Brown. "The f laws in the legislation have been apparent from the out- set, and it is not at all surprising that they would fail to withstand judicial scrutiny. The Norman case is a perfect example of the unfairness that can arise from this problematic legislation. Two peo- ple who commit similar crimes may serve vastly different sen- tences depending on whether one was on bail at the time the crime was committed. Justice Goldstein quite rightly concluded that the law treating these individuals dif- ferently in sentencing was over- broad, grossly disproportionate, and arbitrary." Criminal defence lawyer Amanda Ross of Cooper Sandler Shime & Bergman LLP says the act as it stood was unfair to low- income people and unfairly re- warded those with the means to obtain bail. She says the ruling gives discretion back to judges in applying enhanced credit and properly removes sections of an act she calls "callous" and "an ugly, ugly thing." "Basically, it takes account of the fact that what's being consid- ered in terms of sentence, if you're considering the impact of bail, is just an absolutely arbitrary deci- sion," says Ross, one of two law- yers who acted for Jeremy Nor- man. "Somebody was potentially serving a significantly longer sen- tence on the basis of something that's absolutely irrelevant to what actually occurred. If you are des- titute, if you are aboriginal, if you have mental health issues, it's of- ten more difficult to secure bail and when that's the determining factor to whether or not you're serving a longer sentence, that's just fundamentally wrong." The Nov. 6 ruling followed Norman's plea of guilty to a charge of assault causing bodily harm. "Mr. Norman was arrested for breaching his bail conditions on February 21, 2013," wrote Goldstein in setting out the cir- cumstances. "On November 1, 2013 he was convicted of fail to comply with probation. He was sentenced to 45 days in custody. As a result, from February 21, 2013 to April 17, 2015 Mr. Norman has spent 2 years and 2 months in custody, of which 2 years and 15 days is attributable to the assault causing bodily harm charge. At the ratio of 1.5:1 he is entitled to just over three years of credit. Since, as I said, the appro- priate sentence is 3 1/2 years, I will consider the credit as just slightly less than 1.5:1 and sentence him to a further six months in custody." The Truth in Sentencing Act, which came into effect as part of the previous federal government's efforts to toughen criminal laws, capped the amount of credit judg- es could give prisoners for time spent in remand. It amended the Criminal Code to set a general ex- pectation of one day of credit for every day spent in pretrial custo- dy. Prior to that, it had been com- mon practice for judges to provide two days of credit for every day spent in pretrial custody. The issue came before the Supreme Court of Canada in R. v. Summers in 2014. In a deci- sion written by Justice Andro- mache Karakatsanis, the court judges should continue to have discretion to grant extra credit to prisoners, including those denied or who were unable to secure bail. "The basic problem I see is that offenders are punished based on something that the Crown is not required to prove beyond a rea- sonable doubt," wrote Goldstein. "Indeed, an offender could conceivably have their bail can- celled, be charged with fail to comply, be acquitted of that charge, and then still be punished for it. It can hardly be considered a minimal impairment of a Charter right where people are at risk of punishment based on something that has nothing to do with the of- fence they are convicted of." Criminal defence lawyer Brian Ross calls the ruling "a huge vic- tory" given the concern that the law was punishing some people more harshly simply because they couldn't obtain bail. "This is unconscionable," he says. "The whole Truth in Sen- tencing Act is just fraught with problems and it's great to see, one by one, so many problems in the act are being addressed and rem- edied." Brown, too, calls the deci- sion promising and suggests that with a new federal government in place, there's the potential for a re- view of the act in the future. "It's also promising judges are identifying these problematic pieces of legislation as uncon- stitutional. They don't adhere to constitutional standards. We don't want our justice policy to cater to the rich or to punish the poor." 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In her study, Ravina Bains, associate director of the Fraser Insti- tute Centre for Aboriginal Policy Studies, looked at the October 2015 Supreme Court decision upholding a British Columbia Court of Ap- peal ruling that would allow First Nations to file for damages against private entities without proving aboriginal title first. The Supreme Court decision allows two B.C. First Nations to file for damages against mining giant Rio Tinto Alcan Inc. The case involves the company's Kenney Dam, which has been operating for 60 years on the Nechako River in northeastern British Columbia. It services the Kitimat, B.C., aluminum smelter, a project supported by the Haisla First Nation. Rio Tinto Alcan recently invested more than $4 billion to up- grade the smelter. The company is operating under a B.C. government licence on land it bought from the government in the 1950s. "This is something that has historically been, in terms of litigation and negotiation, between First Nations and the Crown and now this is opening up a whole other area of litigation against private parties," says Bains. "It adds just as many questions for First Nations groups who are rightfully trying to gain aboriginal title on land." In order for the First Nations communities to win damages, they have to prove aboriginal title. "If they are granted aboriginal title, will the province of B.C. and federal government recognize that?" asks Bains. "If these communities do choose to go down that path, is there a chance they will be in litigation for 20 years like Tsilhqot'in was, then end up gaining damages from Rio Tinto but not having aboriginal title recognized by the government?" Because the Supreme Court upheld the Court of Appeal decision and said communities could bring forward a damages claim, Bains says it will be interesting to see if they go ahead and pursue the claim against Rio Tinto or if the parties negotiate an out-of-court settlement. One aboriginal lawyer, however, says the decision isn't really a game changer but rather more "a very Canadian, very fair process." Thomas Isaac, a partner at Osler Hoskin & Harcourt LLP, says he doesn't believe private parties should be on the hook for damages, at least in respect of a constitutional infringement of rights. There may be nuisance claims, but that's a different issue, he says. "It's an important decision, but it does not stand that automatically the compensation will f low," says Isaac. "It stands for the fact the court had determined — right- ly or wrongly — that these claims should be treated like other claims and, if proven, there could be some damages owing. The court is saying you have the right to argue this at some future point." LT T

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