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LEGAL REPORT/FORENSICS & CRIMINAL LAW The real truth in An Ontario ruling is being held up as a bastion against the Truth in Sentencing Act, which took away credit for time served. BY GRETCHEN DRUMMIE W hen Marvin Johnson sold $20 worth of cocaine to an undercover Toronto police officer on Feb. 26, 2010, he probably didn't realize his case would become the first word from Canada's courts upholding the constitutionality of a key plank in Prime Minister Stephen Harper's tough-on-crime initiatives. Nor could it have been predicted the same decision would also be lauded by the country's defence bar as a clever path of breadcrumbs around the newly minted sentencing law. With the Tory government's Truth in Sentencing Act, it was thought the de facto practice of awarding enhanced credit in all but a few cases had been eliminated. But, in R. v. Johnson, Ontario Court Justice Melvyn Green said while the new law is constitutional, judges should, instead of applying the old system of determining if credit is due for pretrial custody, use their discretion to reduce the overall sentences to reflect harsh conditions in remand cen- tres. The judgment also takes into account parole, math the government's new law didn't, which makes Green's way "much more truthful," says Toronto criminal law- yer Gregory Lafontaine. "Johnson could very easily become the leading decision interpreting where the truth lies in Canadian sentencing law. It's instantly become the focus of sentencing submissions in the early weeks. The test will be whether it ends up being generally adopted by judges of trial courts across the country," says Lafontaine. "It's either going to carry the day or will, at least, serve to bring the issue to a head. I expect that Johnson will not sit well with some of the more conservative thinkers among the judiciary. You could well get a compet- ing thesis from another jurist. Johnson is definitely going to serve as a magnet, a lightning rod, the starting point. . . . It is 'the' case." Just four days before Johnson's arrest, the Criminal Code amendments came into force. That meant if the 40-year-old had been collared prior to Feb. 22, 2010, he would have been sentenced under the regime that saw Canadian courts routinely deliver two-for-one, and sometimes three- for-one credit for pretrial custody. Now Johnson, who consented to his detention and on May 4, 2010 pleaded guilty to traf- ficking cocaine, faced sentencing under new rules that limited his so-called dead time to one day for each day served, or "if the circumstances justify it," 1.5 days of credit for one day of pre-sentence cus- tody. Typically since the new law, Canadian judges have been meting out one-for-one credit, say lawyers, leaving the "if circum- stances justify it" clause open for inter- pretation for use in rare instances, and certainly not across the board. In other words, like the rest of his peers this past year, Johnson was facing only one-for-one credit and a look at doing significantly more time in custody. Enter Corbin Cawkell and Kristin Bailey of Hicks Adams LLP in Toronto, who launched a constitutional attack on the Truth in Sentencing Act, arguing it infringes on Johnson's Charter rights. On Feb. 23, Green dismissed Johnson's chal- lenge finding no Charter breach, mainly because the 1.5 credit may be given. But here's the rub: Green's ruling is also inter- preted as setting a precedent that could ultimately make 1.5 credit the new normal, rather than the exception. In other words, Green said the circumstances don't have to be that exceptional for 1.5 to be awarded, and the focus should be on how unfair it is that the opportunity exists for two people with the same cases to be treated differ- ently. Asked Green: "Why should accused persons denied bail end up serving longer global periods of incarceration than those released pending their trials?" www.CANADIAN Lawyermag.com M AY 2011 51 sent encin g kiM rosen