Truth in Sentencing: Charged After Enactment

The Court of Appeal released a decision Friday on whether Truth in Sentencing legislation (the Conservative bill eliminating credit for pre-sentence custody beyond 1.5:1) applies in situations where an offence pre-dates the enactment of the legislation however the laying of the charge post-dates its enactment.  It’s likely not overly relevant to cases currently before the courts but provides an interesting academic discussion nonetheless.

The Act itself states that it only applies to persons “charged after” it comes into force.  This makes this discussion moot for anyone charged prior to its enactment.

In R. v. Clarke, Mr. Clarke plead guilty to break & enter and firearms charges.  The offence occurred prior to the enactment of the Truth in Sentencing legislation.  He was charged after it came into force.  The trial judge, Justice Fergus O’Donnell, determined the appropriate sentence was ten years less pre-sentence custody.  As Mr. Clarke was beaten while in detention Justice O’Donnell felt he should be afforded the maximum credit afforded by law.  Ultimately he determined that the Act did apply and provided 1.5:1 credit.

On appeal, the Crown conceded that, should the Act not apply retrospectively, Mr. Clarke should be provided with 2:1 credit.

Justice Laskin, writing for himself and Justices Goudge and Gillese, explained that this was a matter of statutory interpretation, ultimately holding that the Act applied restrospectively and the proper credit for Mr. Clarke was 1.5:1.  This decision is inconsistent with a recent decision of the Alberta Court of Appeal.  The court held:

[16]       The Alberta Court of Appeal recently considered this same question in R. v. Serdyuk, 2012 ABCA 205.  The Court concluded, at para. 28, that Parliament did not intend the Act to apply to these offenders:

In our view, it is clear that Parliament intended by s. 5 of the Truth in Sentencing Act to put beyond question that only persons who committed their crimes and were charged for them after the amended Code provisions came into force would be affected by the amendments. Neither official language version mentions the date of offence, but, as noted below, the absence of such reference is not an obvious exclusion. [Emphasis in original.]

[17]       I disagree.  Section 5 shows a clear parliamentary intent that the new provisions for credit for pre-sentence custody apply to persons, such as the appellant, who committed an offence before February 22, 2010, but were charged with the offence after that date.  I rest my submission on two grounds.

[18]       First, the starting rule of statutory interpretation is to examine the plain words Parliament used: R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149, at para. 26.  If those words have a clear meaning and do not give rise to any ambiguity – that is, they are not reasonably capable of more than one meaning – the court should give effect to those words.

[19]       The words of s. 5 are clear and admit of only one meaning.  The new provisions apply to the sentencing of all persons charged after the Act came into force, no matter when the offences were committed.  I agree with the respondent that to give effect to the appellant’s position, one would have to read into s. 5 the following underlined words:

[The new provisions], as enacted by s. 3, apply only to persons charged with an offence committed after the day on which those [provisions] come into force.

[20]       Parliament has to be taken to know the difference between the date an offence takes place and the date a person is charged with the offence.  To read in those underlined words would change Parliament’s intent on the applicability of the Truth in Sentencing Act.  The trial judge’s interpretation of the Act is therefore consistent with the plain words of the statute.

[21]       Second, the words of a statute take their colour and their meaning from their context and the Act’s purpose: Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306, at para. 27.

[22]       One obvious purpose of the Truth in Sentencing Act is to reduce the credit available for the population of offenders detained before sentencing. The triggering date for detention before sentencing is the date the person is charged and held pending a bail hearing.  The date a person commits an offence is of no relevance to this purpose of the Truth in Sentencing Act.  Thus, the appellant’s interpretation of s. 5 is at odds with the statute’s purpose.  The trial judge’s interpretation that the Act applies to the appellant because he was charged after it came into force is consistent with the statute’s purpose.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at

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