Let’s Be Clear: The Supreme Court of Canada and the Enhanced Credit Cases

The enhanced credit trilogy cases released by the Supreme Court of Canada are truly a lesson in clarity on many levels. First, the main judgment in the Summers case, written by Madame Justice Karakatsanis, is clear, concise (at least for a SCC judgment) and readable. Second, the main basis for dismissing the Crown appeal is the government’s lack of clarity in defining the meaning of “circumstances” that justify enhanced credit under s. 719(3.1). Conversely, third, is the seemingly clear intention of the government to “cap” the credit at a 1:1.5 ratio. However, fourth, are the clearly defined and “well-established” and “long-standing” sentencing principles, which included enhanced credit for the lack of parole eligibility during pre-trial custody. In order to “overturn” these principles, Parliament must, fifthly, use clear and explicit language in the legislation.

What is also clear about this judgment (sixth) is that the Court is engaging in a dialogue with the government. If the government wants to change the law, they must do so, well, clearly – the government cannot hide behind value-laden words such as “truth” and “transparency.” However, the Court, albeit in an aside in paragraph 56 of the Summers judgment, also places a caveat on the government’s ability to change entrenched legal principles when Justice Karakatsanis states “Parliament does, of course, have the power to exclude these circumstances from consideration (barring a constitutional challenge).” Certainly, this advice is clear: if the government chooses to change legislation, then any changes must be consistent with the Charter.

Parliament, the ball is now in your “court!”