R v Summers; Truth in Sentencing Act

2014 SCC 26; The Supreme Court of Canada was called upon to interpret the Truth in Sentencing Act to determine the factors a sentencing judge is entitled to consider when determining the amount of credit available to an offender for time spent in pre-sentence custody. The Attorney-General of Ontario argued for a narrow interpretation of the “circumstances” that justify enhanced credit for pre-sentence custody, which, on its argument, excluded the fact that time spent in pre-sentence custody does not count towards earned remission or statutory release (collectively, “early release”). We acted for the intervener, the Canadian Civil Liberties Association. We argued that the “circumstances” ought to be interpreted broadly, and in a way that accorded with the Canadian Charter of Rights and Freedoms, and particularly, the right to be presumed innocent and the fundamental principles of parity and proportionality in sentencing. On this interpretation, the fact that pre-sentence custody does not count towards early release is a relevant factor that can be considered when deciding whether enhanced credit is appropriate. The Court, in a 7-0 decision, agreed that a narrow interpretation of “circumstances” would lead to sentences which violate the principle of parity and proportionality, and preferred a broad interpretation of “circumstances”. The result is that most offenders will now qualify for enhanced credit because their time in pre-sentence custody does not qualify towards early release.