March 27, 2009
On Wednesday, news broke that the Federal Government is planning to introduce legislation that will preclude judges from giving offenders enhanced credit for the time they spend in pre-trial custody. This move represents yet another unfortunate example of the Conservatives' continued efforts to unduly fetter the discretion of Canadian judges when imposing sentences.
Enhanced credit for pretrial custody is given on a discretionary basis and for compelling reasons.
First, the comparatively harsh conditions found in our pre-trial detention facilities. Pre-trial detention centres across the country are often overcrowded, with two and sometimes even three inmates confined to a small cell, sharing sleeping quarters and the same toilet. Lock-downs for substantial periods in the day, 18 to 24 hours depending on the facility, are common. In addition, unlike prisons, pretrial detention facilities offer inmates few, if any, activities or programs and minimal opportunities for physical exercise. In short, these are very unpleasant places to spend time.
The second, and even more compelling rationale, is that unlike an actual sentence, the period spent in pretrial custody is not open to remission for good behavior and the offender is not eligible for parole. For example, an offender sentenced to more than two years is eligible for parole after 1/3rd of their sentence and must be paroled, barring exceptional circumstances, on the completion of 2/3rds of their sentence. In contrast, an offender who spends two years in pretrial custody awaiting trial spends two years in custody with no chance for remission. Giving enhanced credit for pretrial custody is meant to provide some redress for the fundamental unfairness that would otherwise result, unfairness that the Conservatives now wish to legally mandate.
It is true that some offenders do attempt to take advantage of the enhanced credit given for time spent in pretrial custody, deliberately racking up so-called "dead time" in order to reduce their ultimate sentence. Where a judge concludes that an offender has done this she has the authority to refuse to grant enhanced credit (see R v Thornton, 2007 ONCA 366). In other words, it is less than clear that this is a problem in need of a legislative solution.
The Conservatives remain committed toward efforts to substantially reduce the discretion of Canadian judges when imposing sentence. This is prefaced on a perception, which has much public sympathy but no empirical support, that Canadian judges are too lenient and that criminals are being treated with kid gloves.
It is interesting that this was the sentiment that swept over the United States a generation ago, leading to a wave of harsh mandatory minimum sentences. It is now relatively well accepted that these efforts have not succeeded in deterring crime. What really influences deterrence is certainty of apprehension rather than the severity of the potential punishment. It is because of this that the Americans have finally begun to rethink mandatory minimums. For example, just this week, the New York legislature reached consensus on a plan to repeal many of that state’s 1970’s era-drug laws that imposed mandatory minimum sentences (see Jeremy W. Peters, “Albany Reaches Deal to Repeal ’70s-Era Drug Laws” (26 March 2009), New York Times, available online.)
If the American experience over the last forty years teaches us anything, it is that eliminating judicial discretion from sentencing doesn’t advance the fight on crime. Rather, it simply serves to fill more and more jails with people who do not necessarily pose a threat to public safety. It is unfortunate that our Government seems committed to pursuing criminal justice policies that have already been tried and failed in the United States.
It is hard not to be cynical about the true motivation behind such efforts. This most recent announcement seems like just another sad example of politicians exploiting the criminal justice system to score political points with the electorate, on an issue that few would understand without a full explanation, all at the expense of an easy target, convicted criminals.
To be sure, there are a great many areas of the criminal justice system in need of legislative reform to redress real problems. The elimination of enhanced credit in sentencing for time spent in pre-trial custody isn’t however one of them.
6 Comments
You may be right that mandatory minimums do not affect crime rates. But you have missed the point of the legislation. You focus on justice being done. This legislation focuses on seeing justice be done.
Non-lawyers I talk to all hate 2-for-1 -- they think it's nonsense that two years can magically become four. Guess they are just ignorant. It's a good thing they don't know about statutory release at 2/3rds of the term (which reporters rarely deign to mention), because then they'd be even more outraged.
Here in BC, judges seem bound to apply the 2-for-1 rule to forestall an appeal. It doesn't seem discretionary to me.
Anyway, Bob Tarantino makes short work of your arguments here:
http://bobtarantino.blogs.com/blog/2009/03/how-not-to-argue-in-favour-of-2for1.html
I agree with the sentiment that an informed observer can't but be cynical about the motivation for this.
I have one issue with your arguments. You mention that the period spent in pretrial custody is not open to remission for good behaviour and then you go on to discuss the parole regime for federal offenders.
There is no earned remission for federal offenders in Canada. Remission was abolished in 1969 when the system now known as statutory release was established. Before '69, offenders earned early release with good behaviour that usually cut sentences by one third. Offenders were therefore released after serving two thirds of their sentences. The sentence was deemed completed (what we call warrant expiry today). Politicians decided to change the system because parole, introduced earlier, had shown such great results. Offenders released with some form of supervision and structure reoffended less often. The politicians decided that virtually all offenders should be released with structure and supervision, so they established what is now called statutory release (mandatory supervision formerly). This meant that the sentences of offenders were essentially lengthened, since that final third that was usually cancelled out through good behaviour (the remission), was now served in the community, under supervision.
And don't forget this current Conservative government wants to eliminate statutory release, a tactic that was originally implemented because it showed promise in making communities safer. The Tories tout the plan to eliminate stat release as another get-tough measure, yet statutory release was established 40 years ago as a get-tough measure that replaced a soft-on crime loophole – earned remission.
While I don't necessarily agree with the proposed legislation, especially the hard cap of 1.5:1 ratio for time served if justification is provided, this is a situation that judges have gotten themselves into, as the application of 2:1 or even 3:1 ratios have not been discretionary, but prima facie in most regions across Canada. My question regarding the change is how much real impact it will have on sentencing, and if judges will begin lowering imposed sentences knowing that credit for time served is no longer applied.
One possible unintended consequence of this legislation may be a backlog on the courts, as people push for quick trials (and the resultant Charter challenges on 8(b)), rather than serving dead time which without the ratio of credit no longer benefits the accused. In fact, serving dead time now most likely hurts them based on opportunities for defacto sentence reduction via early release/probation after sentencing.
While, as commented by Rob, this may be an opening salvo, and early release may be the next target by the government, the change that is proposed seems to alter the "rules of the game" and it will be interesting to see how the courts adapt to it. While one area of judical discretion has been taken away, sentencing is still an inherently flexible procedure, and judges are able to accomodate these changes, and still craft a sentence that is "fair" in their eyes.
I thinks it's a good move. How many times do you see an accused stay in pretrial custody for a few months only to plead gluilty and be released a couple days later on the 2 4 1 plan. We keep fogetting about the victims of these crimes who have to suffer for years on end because of the accuse'd actions.
I think we spend to much time worrying about the so called poor accused who is spending their time in deplorable conditions. Thats where they belong, they committed a crime against us, society, innocent people.
Stop concerning yourself with the accused, leave them in jail to rot!!!
Very good post. You succinctly said what I have been thinking for a long time.
Parliament is not in a good position to sit in judgment over an individual offender. They have no knowledge of the facts in any individual case.
"Automatic" sentencing, such as a mandatory minimum sentencing regime, takes discretion away from the person that is in the best position to determine a sentence: the judge.
That is why we employ judges in the first place: to sit in front of an accused person; see them; hear their plea; and ultimately, decide upon a fit and appropriate sentence that is catered to the unique facts and circumstances of that person.
Thanks Mr. Stribopoulos