Supreme Court showdown looms between Canadian judges and Harper government

The Conservative government's get-tough approach to sentencing criminals is in for a major test in the Supreme Court of Canada in the face of a judicial insurrection.

Judges in several provinces have been defying new legislation that removed their discretion to give convicted criminals two-for-one credit on their prison terms for time spent in pre-trial custody.

A number have also sidestepped Ottawa's requirement for a victim surcharge regardless of the accused's financial circumstances.

The Globe and Mail reports the Supreme Court is scheduled to hear three cases later this month where judges used a loophole in the Truth in Sentencing Act to give 1.5-to-one credit for time already served.

The Conservatives are seething over the judges' defiance of their tough-on-crime agenda. The Globe noted the Ontario Court of Appeal has already struck down the mandatory minimum three-year sentence for illegal gun possession as unconstitutional.

Justice Minister Peter MacKay, a former Crown prosecutor, last month defended the mandatory victim surcharge, which used to be waived routinely if it was evident an accused couldn't pay it. The Conservatives doubled the surcharge and took waiver discretion out of judges' hands.

[ Related: Judges get creative to keep poor offenders from paying surcharge ]

But number of judges have dodged the requirements, reducing the surcharge to a dollar or giving the accused decades to pay it.

“I think you’ll see that over time judges will see the wisdom in putting victims in a better place and respecting their right to be compensated,” MacKay told The Canadian Press.

“A $200 to $300 compensation being applied in these cases, we believe, is proportionate. We believe it is also part of the administration of justice and it reflects society’s condemnation of those acts against the law, against society and against individuals.”

The Truth in Sentencing Act set the credit for time served before conviction at one to one. But judges have leaped on a section of the law that allows them to give up to 1.5-to-one credit "if the circumstances justify it." Judges claim that's almost always the case because pre-trial remand centres lack the facilities and programs available to prison inmates, the Globe said.

In a lengthy article last spring in the Criminal Lawyers' Association newsletter, Ontario Justice Melvyn Green challenged the government's punitive approach to sentencing.

"A spate of amendments to the Criminal Code casts a dark shadow on the sentencing principles of proportionality and restraint," the judge wrote.

"Mandatory minimum sentences have proliferated. Conditional sentencing is all but eliminated. Pre-sentence custody credit is tightly capped. Federal parole eligibility is delayed and circumscribed ...

"A policy of punishment, incapacitation and stigmatization has replaced one premised on the prospect of rehabilitation, restoration and reform."

[ Related: Judges still resisting Harper government’s tough-on-crime policies ]

Now the showdown between the judiciary and Prime Minister Stephen Harper's tough-on-crime agenda is headed to Canada's highest court, where Harper has appointed six of the nine judges (though recent appointee Justice Marc Nadon's status is up in the air).

One of the three cases the Supreme Court is to hear involves Sean Summers, a 19-year-old Ontario man convicted of manslaughter for shaking his three-month-old baby to death, the Globe said.

In sentencing Summers to eight years in prison, Ontario Superior Court Justice C. Stephen Glithero gave him 1.5 days credit for each day of the 10 months he spent in pre-trial custody, knocking 15 months off his sentence, the Globe said.

“I just say it’s absolutely unfair to treat someone who is presumed to be innocent more harshly than we would treat someone who has been found to be guilty,” Glithero wrote in his decision.

Rulings like Glithero's are a reaction to to the government removing judges' discretion, Toronto criminal lawyer Frank Addario told the Globe.

“Judges are programmed to think independently," he said. "That’s the essence of judging.”

But others warn the judges' defiance risks undermining the judicial system.

“They are sowing disregard for the letter of the law, a disregard that is fatal to the regard upon which they depend to do their job and to be taken seriously,” Toronto lawyer Gary Clewley, who has represented police unions and individual officers, told the Globe.

MacKay spokeswoman Paloma Aguilar echoed that sentiment, saying the Truth in Sentencing Act is meant to bolster public faith in the justice system.

The government is “committed to all measures that will ensure greater truth in sentencing because we know Canadians lose faith in the justice system when the punishment does not fit the crime,” she told the Globe.

Postmedia News columnist Christie Blatchford, writing about the victim-surcharge controversy, said she dislikes the Conservatives' vision of justice but "Peter MacKay and his colleagues were elected." Ontario Judge Colin Westman, who openly flouted and spoke against the new law, "was not," she said.

"He should continue to speak out — in my view, judges should be less shy about this — but to thwart the will of Parliament is wrong," Blatchford wrote.

"If he wants to make law, in other words, he should run for office."