So, how about a little upbeat news on the Clifford front! Though Dean’s various filings do not look particularly promising, nor has his entourage provided news of victory achieved or impending, I think it’s only fair that I highlight that Dean has, in fact, experienced a major victory – at the Supreme Court of Canada, no less.
No, Dean wasn’t at that court, however it did last week release a decision that is potentially very important for Dean’s next couple years.
In Canada there is a long-standing principle that when a person is detained prior to trial, then is found guilty, that offender’s sentence should be reduced to account for time already spent in pre-trial custody. A policy gradually evolved where trial courts reduced sentences by more than the simple rule of “1 day in remand means 1 day less in prison”, but instead gave what is known as “enhanced credit”, where 1 day in remand could represent 2 or 3 days less in gaol sentence. This approach was formally recognized and made official in 2000 by the Supreme Court of Canada decision of
R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455.
The rationales for the ‘high discount rate’ were that remand centre conditions are usually pretty crummy (and they are – overcrowding is a very real issue), remand centres don’t usually have rehabilitation and re-education programs, and that offenders in prison can usually get early release by parole or sentence reduction schemes, while if you’re in remand you stay in remand.
Nevertheless, this 3:1 or 2:1 discount ratio attracted a lot of bad press, and in 2009 Parliament passed the “
Truth in Sentencing Act” which amended the
Criminal Code to only permit judges to discount sentences by a 1.5:1 ratio where “circumstances justify it”:
Criminal Code, s. 719(3.1). Otherwise, the ratio is only going to be 1:1:
Criminal Code, s. 719(3).
This is the legislation that is faced by Dean.
Over the next couple years the lower courts had different opinions on what “circumstances justify it”. Some said it had to be horrible conditions – like what used to warrant a 3:1 ratio. Others said 1.5:1 should be a norm, as the old
R. v. Wust issues with remand detention still exist. Personally, I think it was pretty clear Parliament wanted the 1.5:1 ratio to only operate in cases where remand was pretty unpleasant or there were special circumstances.
However, the Supreme Court of Canada has decided otherwise in
R. v. Summers, 2014 SCC 26 (
http://canlii.ca/t/g6h8n). In a unanimous decision the court indicated that 1.5:1 is, effectively, the default for any prisoner who has lost the opportunity to obtain early parole:
[70] In determining credit for pre-sentence custody, judges may credit at most 1.5 days for every day served where circumstances warrant. While there is now a statutory maximum, the analytical approach endorsed in Wust otherwise remains unchanged. Judges should continue to assign credit on the basis of the quantitative rationale, to account for lost eligibility for early release and parole during pre-sentence custody, and the qualitative rationale, to account for the relative harshness of the conditions in detention centres.
[71] The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely. …
This is a big win for Dean. He has already spent four months in pre-trial detention, which will reduce his sentence by six months. I have previously indicated that the developing case law in Canada means that a person who claims to be exempt from state authority will probably not get bail – for example
R. v. A.N.B., 2012 ABQB 556 (
http://canlii.ca/t/g203r). Unless Dean changes his mind about that he will be in a box until trial.
I think it’s realistic to imagine Dean's action will take a year total, at best, to get to trial. If Dean is found guilty (which seems probable given Dean does not deny he did those criminal acts – he just says he had a right to do so) then Dean can look forward to having his sentence reduced by about 1.5 years. Six months less time behind bars – a big win.
Well. Except there is one thing. Justice Karakatsanis in
R. v. Summers does indicate that there are certain rare offenders who should not have their sentence reduced via the 1.5:1 ratio.
[71] … Of course, a lower rate may be appropriate when detention was a result of the offender’s bad conduct, or the offender is likely to obtain neither early release nor parole.
…
[79] … The onus is on the offender to demonstrate that he should be awarded enhanced credit as a result of his pre-sentence detention. Generally speaking, the fact that pre-sentence detention has occurred will usually be sufficient to give rise to an inference that the offender has lost eligibility for parole or early release, justifying enhanced credit. Of course, the Crown may respond by challenging such an inference. There will be particularly dangerous offenders who have committed certain serious offences for whom early release and parole are simply not available Similarly, if the accused’s conduct in jail suggests that he is unlikely to be granted early release or parole, the judge may be justified in withholding enhanced credit. …
[Emphasis added.]
Uh oh.
OPCA-related caselaw has been accumulating that where an offender says he or she will not comply with court and state authority then release or community service is inappropriate:
R. v. A.N.B.;
R v Jastrebske, 2013 SKQB 150 (
http://canlii.ca/t/fx72k);
R v Seagull, 2013 BCSC 1811 (
http://canlii.ca/t/g0s21);
R. v. McCormick, 2012 NSCA 58 (
http://canlii.ca/t/frktx). Arguably, this is a valid basis on which a sentencing court could conclude that Dean will not likely qualify for either early release or parole, simply because he won’t cooperate with those he says have no authority over him – and if he’s freed? He’s free to do what he wants.
(His track record to date of not obeying court orders doesn’t help either.)
So – perhaps this great win won’t be available. Still, it raises a pretty interesting litigation issue. If Dean is tried will he plead guilty, proclaim he was a fool, denounce his previously espoused beliefs? That would potentially save him a substantial amount of time in gaol. Or will he resist, and become one of the 2-3% of federal prisoners (
R. v. Summers at para. 250) who do not obtain early release?
It’s all in Dean’s hands.
(Or, alternatively, Dean will any day now reveal his masterwork documents and show us all as fools! Dean is Winning! Dean has already Won!)
SMS Möwe
