Tories’ tough-on-crime battle takes a hit as top court quashes aspect of parole reform

Prime Minister Stephen Harper's get-tough approach to crime and punishment has produced contentious legislation. We now have mandatory-minimum sentences for drug or violent offences, higher victim surcharges and no extra credit for time spent in pre-trial custody.

But some of it is being peeled back either by the work of defiant judges or direct legal challenges.

The Conservatives' crime agenda took another blow Thursday when the Supreme Court of Canada struck down part of a 2011 law that retroactively reduced parole eligibility for inmates who'd been sentenced before the legislation was passed.

The Abolition of Early Parole Act eliminated accelerated parole review, effectively lengthening the amount of time a non-violent, first-time offender would remain in prison before being eligible for parole, The Canadian Press reported.

The Supreme Court decision released Thursday concluded the law is unconstitutional because it amounts to double-jeopardy – imposing additional penalties on those who've already received their punishment.

[ Related: Supreme Court showdown looms between Canadian judges and Harper government ]

The court ruled Section 1o (1) of the act governing retroactivity of the law violated the Charter of Rights and Freedoms' Section 11 (h), which guarantees a person found guilty of an offence cannot be tried or punished a second time for the same crime.

The ruling, triggered by a challenge from three inmates and the B.C. Civil Liberties Association, potentially affects a large number of prisoners sentenced before March 28, 2011, when the law came into effect, CBC News reported. They now could be eligible for accelerated parole review.

Justice Richard Wagner, who wrote the unanimous decision by the eight judges, said the law automatically extended the minimum period of incarceration without regard to individual circumstances, CBC News said.

Three inmates who filed the challenge had their parole reviews delayed between three and 21 months.

The B.C. Supreme Court and the province's Court of Appeal agreed the inmates' Charter rights had been violated but the federal government appealed to the Supreme Court of Canada.

A spokesman for Public Safety Minister Steven Blaney told CBC News the government is examining the impact of the high court ruling.

“Our Conservative government has been clear,” Jason Tamming said via email. "We do not believe that white collar criminals and drug dealers should be released after a mere one sixth of their sentence."

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

The rollout of Harper's tough-on-crime policies has not been smooth.

Judges have done end-runs around legislation that doubled the victim surcharge to a maximum $200 by either refusing outright to impose it on petty crooks who don't have the money or giving them decades to pay.

When the Conservatives in 2010 eliminated the two-for-one credit on prison sentences for time spent in custody before conviction, some judges routinely invoked the remaining exception of 1.5-to-one meant for special circumstances.

And last fall, the Ontario Court of Appeal found the government's 2008 law requiring a mandatory minimum three-year sentence for gun possession, regardless of circumstances, to be unconstitutional under its prohibition of cruel and unusual punishment. That case, too, could find its way to the Supreme Court.