R v Calvin Clarke 2013 ONCA 7
This appeal was about the application of a statute that came into force after Calvin Clarke committed his crimes, but before the police charged him with those crimes.
In Canada, when you are charged with a criminal offence and detained in jail for a number of days leading up to your trial you can use those days after your conviction (provide you are convicted) to reduce your sentence by at least the same number of days you have already spent in custody.
Parliament, in 2009, enacted the Truth in Sentencing Act, SC 2009 c 29. Before this act a judge could lower an accused sentence 2 or 3 fold for every day he had already spent in jail. Most often, a judge would give an accused “two for one”, meaning the convicted person would get credit for having spent two days credit for every one day he actually spent in jail. Sometimes, a judge would grant “three for one”, meaning, similarly, the accused person was given a credit of having spent three days in jail for every actual day he spent in jail. There were other creative multiples given by trial judges to the problem as well, such as giving 1.5 to 1 or 2.5 to 1 days.
The reasons for giving credit of an inflated number of days are no complicated and possibly a little tired: invariably the courts indicated that spending time in jail awaiting your trial is harsher than spending time in jail after you are convicted. For one thing, you cannot qualify for remedial programs. The Supreme Court of Canada covers it all in R v Wust 2000 SCC 18.
Parliament, however, changed that with the Truth in Sentencing Act. Under the Act, the highest credit you can get is 1.5 days for every day actual spent in custody.
In this case, Calvin Clarke plead guilty to break and enter and a number of firearms offences. The trial judge sentenced him to 10 years in prison. Since he had already been in jail for 348 days he received a credit of 522 days, or 1.5 days for every day actually spent in prison. Justice Fergus O’Donnell stated that the fact that he had been beaten while in custody justified giving the maximum credit allowable under the Act.
Clarke, though, appealed on a procedural question. He argued that, since he had committed the crimes before Parliament enacted the statute, the statute does not apply to him. This would mean that it was open to the trial judge to give him more credit, two for one or more, perhaps. Ultimately, he wanted a lower sentence.
While it was true that he committed the crimes before the enactment, it is also true that he was charged by the police after the enactment. So, did the legislation apply to Calvin’s case? Laskin J.A. said it does. Section 5 of the Act states clearly that the Act applies to everyone charged with an offence after the provisions came into force. Now, Calvin was charged after the provision came into force. Does it matter whether he committed the crime before the enactment. The Truth in Sentencing Act does not address this question? The court of appeal held that the words in the act have a clear meaning. They are not capable of more than one meaning. The words say the act applies if you are charged after it comes into force. There’s no ambiguity.
Now, in my view, a compact decision is a good decision. I like this case for another reason, however – there is an easy dismissal of the sought after word twisting. My question is why this appeal was argued? Calvin was charged after the act came into force. The statute says it applies to anyone who is charged after it came into force? Yet, the fight for more freedom caused Calvin to attend at the court of appeal and ask the court to find that the statute says something other than what it says.
The development of the common law turns on twisting or shading words. (Interestingly, the Ontario Court of Appeal recently over-ruled a trial judge because he used the word “would” instead of “could”: R v. Spackman 2012 ONCA 905. Somewhere along the trail of an education in law there is the gain of a profession to be sure, but it seems to me there is corresponding loss as well: there is the loss of an ability to see the words as they are plainly. Since the Criminal law gives birth to new distinctions in language every day owing to the serious fighting in court over money and or freedom, I wonder whether it actually has a direction. My deepest suspicison is that it is all change without design. Perhaps that is what it is supposed to be. The fights of court make law, law does not control its fighting?
More to think on than time to think on it.