Nunavut judge strikes down section of Tory tough-on-crime law

Justice Susan Cooper of the Nunavut Court of Justice has struck down part of the previous Conservative government’s Truth in Sentencing Act, saying it conflicts with Section 11 of the of Charter of Rights. (FILE PHOTO)

Justice Susan Cooper of the Nunavut Court of Justice has ruled that a section of the former Conservative government’s highly-touted Truth in Sentencing Act breaches the charter rights of convicted offenders who committed their crimes before the act came into force.

The Truth in Sentencing Act, which came into effect Feb. 22, 2010, is intended to put limits on how sentencing judges grant credit for jail time that offenders serve in remand before they’re convicted.

In the past, judges across often gave offenders two days credit for each day of jail time served awaiting trial.

But the Conservative tough-on-crime law, which responds to the perception that Canadian judges are too soft on criminals, limited that discretion to a one-for-one ratio, with a 1.5 to one ratio in certain circumstances only.

Section 5 of the law says the new credit-for-time-served rule applies only to offenders charged after the day the act came into force.

But that means the law could still apply to offenders who committed crimes prior to the act becoming law in 2010, but who weren’t charged until after that date.

The problem is that Section 11 of the Charter of Rights says convicted offenders should get the lesser punishment if the penalty for their crime changed after they committed the offence.

That affects Silas Takawgak, 56, who was convicted in February 2015 of sex crimes against girls and young women committed between 1987 and 1998 – before the Truth in Sentencing Act became law.

But Takawgak, whose community is undisclosed to protect witnesses, wasn’t charged with those offences until March 2013 — after the Truth in Sentencing Act became law.

He also spent 954 days — almost two years and nine months — in custody awaiting trial.

That means that under the new regime, Takawgak could get credit for up to 1,431 days, or 47.7 months, worth of time served.

But under the old pre-2010 regime, Takawgak could receive credit for 1,908 days — 5.3 years of time served.

That amounts to a difference of nearly 16 months.

“This can hardly be described as incidental or of little consequence,” Cooper said in her judgment.

At his sentencing hearing in June 2015, Crown prosecutor Amy Porteous argued that Tagawgak should get a total sentence of five and a half to six years. — which means 5.3 years of credit would cover nearly all of his sentence.

But defence lawyer David Berg said he should get a sentence of four to five years, but with a credit equal to two or three times the number of days he spend in remand detention.

So after a review of recent case law, Cooper found that Section 5 of the Truth and Sentencing Act violates the Charter of Rights, and cannot be applied to offenders like Takawgak.

“Section 5 of the Truth in Sentencing Act violates s. 11(i) of the Charter of Rights and Freedoms, and is therefore of no force or effect, to the extent that it applies to offenders convicted of offences which predate the coming into force of the Act,” Cooper said in her judgment.

Cooper actually gave the judgment orally this past Oct. 23, 2015.

But the court released an amended version of her ruling April 5.

In 2014, the Ontario Court of Appeal overturned another section of the law that limits credit for time served to a one-for one basis only for certain types of offenders.

2015 NUCJ 40 R. v. Takawgak by NunatsiaqNews