This year may not prove to be any better for the law-and-order party. This month, the Supreme Court of Canada is weighing in on yet another plank in the government’s ‘tough on crime’ policy platform: Bill C-25.
C-25, the Truth in Sentencing Act, imposes strict limits on the amount of credit that an offender can receive for time spent in jail before a verdict (also known as ‘pre-sentence’ custody).
Historically — and for very good reasons — judges retained the discretion to determine the amount of credit an offender could receive for time spent in custody prior to conviction. This credit could then be applied to reduce the offender’s ultimate sentence. Depending on the circumstances of the offender — and the conditions he or she experienced in jail — one day of pre-sentence custody could reduce the ultimate sentence by as much as three days.
Under C-25, any credit for pre-sentence custody is limited to a maximum of one day for each day spent in custody. The legislation also provides that, if “circumstances” justify it, a modest enhanced credit of one and one-half days for each day spent in custody may be granted.
This month the Supreme Court will rule on what “circumstance” could justify using what remains of judicial discretion to grant the modest sentence credit of one and one-half days for every day served.
Despite having given very little guidance when the bill was introduced, the government now argues that circumstances justifying enhanced credit should be narrowly interpreted. Expert evidence, multiple appeal court judgments and simple logic all say the government is wrong.
When C-25 was introduced, the government said restricting judicial discretion over the calculation of pre-sentence credit was necessary because offenders had been gaming the system — delaying court hearings and amassing time in pre-sentence custody to artificially reduce their sentences.
But there was little truth to be found in the government’s justifications for C-25. Judges need discretion to grant enhanced credit for pre-sentence custody in the name of basic fairness.
Time spent in jail prior to a conviction is not taken into account when calculating parole eligibility. This means that an offender who is detained in custody before being found guilty will ultimately serve more time in jail than someone given the same sentence who is released on bail.
Under C-25, in other words, the poor end up being punished more harshly than the rich. C-25 promotes the type of equality and fairness Anatole France had in mind when he said: “The law, in all its majestic equality, forbids the rich as well as the poor to sleep under bridges on rainy nights, to beg on the streets and to steal bread.”
Enhanced credit also serves the purpose of offering modest compensation for the appalling conditions in pre-sentence detention. Accused held in jail pre-sentence are still presumed innocent — but they’re denied rehabilitative programs, have minimal access to amenities and are often warehoused in overcrowded and unsanitary conditions.
These inhumane conditions make time spent in pre-trial custody more punitive than any sentence an offender would receive following a finding of guilt. This is the cruel irony of our sentencing system: People presumed innocent are serving harder time than the ones found guilty and sentenced to prison. Which is why sentencing credit for pre-sentence custody is nothing more than basic justice.
Surprising no one, the Conservatives presented no empirical evidence backing their claim that accused voluntary subject themselves to horrendous and lengthy pre-trial detention conditions in an attempt to delay court cases and accumulate sentence credit.
Nor did the Conservatives’ position find support in the testimony of experts heard during parliamentary committee hearings. In fact, officials from Corrections, criminologists, legal experts, criminal defence counsel and even the Canadian Association of Crown Counsel expressed grave concerns and criticized the bill.
David Daubney, a senior policy advisor in the Department of Justice and a drafter of the bill, testified that he did not dispute the evidence undermining C-25.
The concerns of the the experts (I was one of them) did find some support in the Upper Chamber. The Standing Senate Committee on Legal and Constitutional Affairs recommended amendments to C-25 that would have increased judicial discretion and ensured constitutionality. These amendments ultimately were rejected by the Conservative-controlled Senate.
C-25 is the work of a government pursuing a reckless approach to criminal justice. Worse, the government seems to be quite aware of this. Mr. Daubney candidly told Parliament that:
“Frankly, (C-25’s) impact will be that courts trying to do justice will find that in many cases the circumstances (of pre-sentence custody) do justify (enhanced credit), but we’ll have to see how that plays out.
“I think judges will try to the right thing. Another possibility is that they will lower the sentence they would have given in order to somehow take into account any unfairness.”
Which is exactly what happened. Every level of court — including the Ontario Court of Appeal — interpreted the restrictive provisions of C-25 as broadly as possible in an attempt to avoid unfairness … just as Mr. Daubney predicted.
It is indeed ironic that a government that makes a habit of crying foul over so-called ‘judicial activism’ abdicated to the courts its own duty to craft laws that are constitutional — and fair.
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