Charter Application; Truth in Sentencing (sic) and dead-time credit – sections 12, 7, 11(e) and (h)

Spring Aurora

After extended deliberations at the conclusion of a trial conducted before a judge and jury, the jury entered an acquittal in relation to one of the charges Patrick Nadli faced.  The jury was not able to reach a conclusion in relation to the most important remaining charge – sex assault cause bodily harm.  The Crown gave notice that it would be seeking another trial to resolve this count and Nadli (who had been waiting in jail for over 2 years) decided to enter a guilty plea.


Nadli was sentenced to 5 years in jail for these reasons – R. v. Nadli, 2014 NWTSC 71 (CanLII).  The remaining question was – what credit should he receive for his pre-sentence custody?


Since he had been in custody since his arrest, Nadli had accumulated significant dead time – 744 days.  Was the 744 days worth the 1116 days it would have been worth had he been a serving prisoner?


The justice of the peace at his bail hearing declared that he was being detained primarily due to his record which meant, thanks to the Truth in Sentencing (TIS) Act, that he could not receive enhanced credit for the time he spent in custody.  Effectively, at the conclusion of his sentence, the TIS regime would have put Nadli in jail for almost an additional year versus compared to his situation had he been released on bail.


A successful Charter challenge to the TIS regime was mounted on the grounds that the TIS result 1) amounted to cruel and unusual punishment (contrary to section 12 of the Charter), 2) breached section 7 of the Charter because the conclusion that he should be detained primarily due to his record could not be challenged or appealed, 3) discourages accused persons from seeking bail if they might be detained due to their record and 4) punishes offenders more than once for previous convictions.  This is the Notice of Motion and the Factum.


Madam Justice Charbonneau of the NWT Supreme Court granted the application concluding “The portion of subsection 719(3.1) that reads “unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1)  is contrary to sections 7, 12, and Paras 11(e) and (h) of the Charter, and is not saved by section 1.”  Her Honour’s decision is reported here – R. v. Nadli, 2014 NWTSC 47 (CanLII).


The correctness of Her Honour’s conclusion was, at least to some extent, reflected in the Supreme Court of Canada decision in R. v. Safarzadeh‑Markhali, 2016 SCC 14 (CanLII).  However, in Safarzadeh-Markhali, the Court concluded that the purpose of TIS was to enhance public safety and security and in that context decided that “It is clear that s. 719(3.1) limits liberty. Its effect is to require offenders who come within its ambit to serve more time in prison than they would have otherwise. Laws that curtail liberty in a way that is overbroad do not conform to the principles of fundamental justice.”  In other words, because offenders who may pose no safety risk whatsoever would be forced to serve more time as a result of, for example, a bad record for failing to appear in Court, TIS catches more people than it should. Unfortunately, the Court did not deal with any of the broader issues raised in Her Honour’s decision.


On a side note, the Supreme Court analysis of this statute is interesting because if you had asked any Criminal Lawyer what is the goal of TIS?  They would have answered to make sure that offenders with longer criminal records spend still more time in jail (a purely retributive goal).  The Supreme Court, however, concluded that the government simply wanted to make sure that repeat offenders got access to programming.  It came as a shock to me to learn that the perennially mean-spirited Harper Government’s promise to “get tough on crime” was actually just camouflage for its real agenda – increasing programming opportunities.  It does, however, pose the question – if enhancing safety and security with offender programming is so important, why is this programming only available in a penitentiary?


The  end result makes sense, but I thought there was a direct route to that result – the conclusions of Madam Justice Charbonneau.  It is not as though the Court is reluctant to make pronouncements that go beyond the scope of the facts before the Court; Jobidon and Ewanchuk were both cases dealing, for example, with consent in respect of which consent had nothing to do with the facts before the Court.  I can only conclude that the Court is trying to ensure that the scope of some of the relevant Charter rights (section 12 in particular) is not broadened by stupid legislation intended to achieve exactly the opposite result.