Reasonable Doubt: The Marco Muzzo case and an overview of sentencing in Canada

Why the convicted drunk driver may serve only about half his 10-year sentence behind bars

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      Modern-day punishment aims to be more rehabilitative (and is much less severe) than ancient forms involving death and torture. That’s why Marco Muzzo received a 10-year jail sentence for a drunk-driving crash that killed three children and their grandfather.

      To some people, that might seem too lenient. And what about the fact he may only serve about half of that sentence behind bars? Let’s examine why.

      In Canada, the sentencing judge has discretion over the type and length of sentence imposed, except where the government has enacted mandatory minimum and maximum sentences, as well as other guidelines such as credit for time served and parole eligibility.

      Sentencing aims set out in Criminal Code

      In determining which punitive consequences the sentencing judge believes are most appropriate given the circumstances of each case, he or she applies the sentencing objectives and principles set out in the Criminal Code of Canada.

      Section 718 of the code states that the “fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions”.

      It goes on to say that those just sanctions should have the following objectives: denunciation of the behaviour; deterrence to commit crimes (both with respect to the individual offender and others who may commit similar offences); separation of the offender from public, where necessary; rehabilitation; reparation; promotion of a sense of responsibility in offenders; and acknowledgement by the offender of the harm done to victims or the community.

      Code's priciples must be considered by judge

      Section 718.1 provides the fundamental principle of sentencing: that it must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In applying this principle, the sentencing judge takes into account the aggravating and mitigating factors of each particular offence and the unique circumstances of the offender, as well as other principles outlined in s. 718.2: a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; a combined sentence for multiple crimes should not be unduly long or harsh; an offender should not be sent to jail if other punishments are reasonable in the circumstances; and all available sanctions, other than imprisonment, should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

      In Muzzo’s case, the sentencing judge determined that a 10-year jail term was most appropriate given the gravity of the offence, the harm it caused, and Muzzo’s personal circumstances. The aggravating circumstances included his high degree of moral blameworthiness, the consequences of his offences, and his lengthy record of driving infractions, many of which were speeding.

      With respect to the mitigating circumstances, Muzzo is only 29 years old, he has shown genuine remorse for his actions, and he took responsibility by entering early guilty pleas to four counts of impaired driving causing death and two counts of impaired driving causing bodily harm. Although rehabilitation is usually a primary sentencing objective, in his case the sentencing judge emphasized the objectives of denunciation and deterrence by sending the message that people who commit similar crimes will face years in jail.

      Time served and parole key determinants

      So what about Muzzo’s 10-year jail term and the fact he may only serve about half of it behind bars? And why is it that we hear of murderers sentenced to “life in prison” getting out of jail after 10 or 25 years?

      There are two primary reasons: credit for time served and parole.

      In Muzzo’s case, he spent approximately 5.25 months in custody prior to being sentenced, called “time served”. Time served is calculated at 1.5 days’ credit for every one day spent in presentence custody, or “on remand”. Therefore, with credit, Muzzo’s time served totals about 8 months (5.25 months at 1.5 credit), and his 10-year sentence is reduced to nine years and four months’ jail. Credit for time served is granted because time served on remand does not count toward the calculation of parole, which is only calculated on the sentence imposed.

      Moreover, time served on remand means that Muzzo spent time in both a provincial jail with strict conditions, and time in police cells, both of which are harsh and may be dangerous. For example, time spent on remand at a high-security provincial jail for, let’s say, shoplifting, is time spent with others on remand for more serious crimes like murder, and often people are badly injured.

      Eventually, parole becomes mandatory

      Regarding parole, Muzzo’s is calculated on that nine years and four months. Accordingly, Muzzo is eligible to apply for parole after one-third of his sentence (3.1 years), but it may not be granted. Regardless, he will be granted parole at two-thirds of his sentence (6.2 years) pursuant to the Corrections and Conditional Release Act.

      If credit for time served was not applied at 1.5-to-one, then it would create a situation where, if he would have skipped the 5.25 months in pre-sentence custody and gone to jail sooner, he would be eligible for parole sooner. There would be an incentive for those accused of a crime to immediately plead guilty and not have a trial so they do not spend time on remand, in harsh conditions, and ultimately lengthening the amount of time they spend in jail.

      Some offences, such as murder, have special rules regarding parole. Parole is the ability to serve the remainder of a jail sentence in the community, and it includes very onerous conditions that will put you back in jail if breached.

      Parole eligibility different in murder cases

      For example, someone convicted of second-degree murder (not planned or premeditated) and sentenced to life in prison is not eligible for parole for at least 10 years, and for up to 25 years. In these cases, juries may make a recommendation regarding the period of parole ineligibility, but it is ultimately determined by the sentencing judge.

      On the other hand, someone convicted of first-degree murder (planned and premeditated), murder in a sexual context, or murder of a police officer, and sentenced to life in prison is not eligible for parole for a minimum of 25 years. In either case, parole may never be granted, but if it is, strict conditions will remain in effect until the person’s death.

      As Muzzo’s case illustrates, sentencing objectives and principles provide guidance, which are aimed at balancing rehabilitation and protection of society and reparation for harm. Jail terms are only imposed when less severe sanctions are not available in the circumstances, and the actual length of incarceration is affected by credit for time served and parole eligibility.

      All of these factors should be kept in mind when assessing whether a sentence imposed is fair and reasonable.

      A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.