“Hard Time”: A Major Change to Sentencing Law in Canada

The Conservative government has introduced several amendments to the Criminal Code during the past few Parliamentary sessions, as part of a legislative package of “law and order” initiatives that the party has used to enact social change in Canada. Some of these initiatives have reduced the availability of certain defences available to a criminal defendant, such as the amendments in Bill C-2, which became law on July 2, 2008. Under Bill C-2, it has become much more difficult to dispute the results of the breath analysis performed by police in drinking and driving cases. Other amendments have made it more difficult to get bail if one is charged with a firearms offence; restricted the types of offences that are eligible for conditional sentences served in the community; and instituted minimum sentences for offences deemed to be worthy of censure, including certain drugs and gun crimes.

Few changes, however, have had the impact of Bill C-25, known as the “Truth In Sentencing Act”, and which became law on February 22, 2010. That law has made it illegal for a court to give the customary 2:1 credit for time spent in pre-trial custody that has been the rule for many years. The maximum now is 1:1 credit, with 1:5 credit being permitted only in exceptional circumstances. With one stroke of the pen, the government transformed the way that offenders are sentenced in Canada. This law has had, and will continue to have, an impact in many ways, some of which were no doubt unforeseen by the social conservatives who have been so motivated to “get tough on crime”.

For decades, it has become settled law that, unless there are exceptional circumstances, an offender who has served time in pre-trial custody awaiting trial or sentence, is given credit on a two-for-one basis when calculating the time remaining on the sentence. This was not an arbitrary policy; it was created to address certain inescapable facts about prison life: first, that time spent in pre-trial custody is “hard time”; second, that due to backlogs in the court system, people have been waiting longer and longer to have their day in court; third, many defendants awaiting trial are eventually acquitted of at least some of the charges that kept them in custody, and there is no way to compensate those people whose innocence, presumed under the Charter of Rights and Freedoms, is ultimately confirmed.

Pre-trial custody is “hard time”: a defendant in custody is cut off from his family, friends, work and community until a court decides whether he is guilty. Over the years, due to backlogs in the court system, the time it takes to get to trial has gotten longer. For serious crimes such as murder, or in complex cases such as guns-and-gangs prosecutions and wiretaps cases, the wait can be two years or more. During that time, an inmate is warehoused in overcrowded, unsanitary, and often unsafe conditions at a maximum security detention centre. In one oft-cited case before the amendments were passed, Justice Richard Schneider in a case called The Queen. v. Smith, [2003] O.J. 1782, decried the medieval conditions at Toronto’s Don Jail, finding that they failed to meet even the Standard Minimum Rules for the Treatment of Prisoners, established by the United Nations over half a century ago.

An inmate in pre-trial custody will rarely have access to any treatment or programs that are often key components of successful rehabilitation; very few even have access to a few minutes of fresh air or exercise.

Courts had, over time, fashioned a response to these inhumane conditions: if governments refused to spend money on upgrading the jails, then the courts, who are the guardians of the rights and freedoms enshrined in the Charter, would take that into account in determining the appropriate sentence to be served. This tension between the courts and the legislature is the kind of tug-of-war that has always set the tone of the debate about law-and-order issues in Canada, and, as is customary, in more dramatic fashion in the United States, with its Tea Party and debates over the Constitution.

The trouble with the kind of sweeping solution presented by the government in Bill C-25 is that it addresses the wrong issue. It will not reduce the number of inmates in pre-trial custody, and it will certainly not reduce costs, which, in addition to a law-and-order agenda, are initiatives that are dear to hearts of conservatives. After all, keeping prisoners in a maximum security setting is expensive. Very expensive.

One reason cited by the government for the changes was the allegation that inmates were choosing to delay their proceedings in order to “save up” pre-trial time which they could then “cash in” for double credit, and that this tactic was adding to case backlogs. The government cited Statistics Canada data to justify this, including the fact that between 1996-7 and 2005-6, the percentage of inmates who were awaiting trial had gone up in relation to the percentage of inmates who were serving sentences (Juristat, vol. 28 #9, Oct. 2008).The suggestion was that inmates were choosing to remain in pre-trial custody.

This is a myth.

It fails to take into account significant legislative changes, including the introduction of conditional sentences, which were designed to reduce the population of inmates serving sentences; the introduction of new reverse onus provisions for firearms cases and the greater use of “tertiary grounds” to detain more defendants than before. In other words, the number of inmates in pre-trial custody was going up relative to sentenced inmates because of new law-and-order policies designed to deny them bail, not because defendants were gaming the system.

Also, the suggestion that taking away 2:1 credit will cause inmates to line up to plead guilty is not borne out by either logic or experience. On the contrary: in the past, the pre-trial custody accumulated by the defendant was a tool which was very useful in plea negotiations. Because an inmate had “saved up” enough time to reduce his remaining sentence, he was much more willing to plead guilty and thus remove another case from the lengthy trial dockets. Everyone wins in that scenario: the Crown gets its conviction and jail sentence; witnesses are spared the ordeal of testifying; society is spared the cost of his trial and the offender gets some acknowledgement for the substandard conditions he was forced to endure awaiting his day in court. Without such credit, there is one less tool in the arsenal of the criminal defence lawyer to negotiate a guilty plea; there is also less incentive for an offender to plead.

As a result of this legislation, one can expect the numbers of inmates in pre-trial custody to actually increase, along with the heavy cost of such a measure. One can see in the recent “contempt of Parliament” scandal, over the cost of the government’s law-and-order initiatives, that the Stephen Harper Conservatives seem to be more concerned about appearing to be “tough on crime” than addressing the budget deficit.

The last word, as it often happens, comes from the courts. As part of the endless game of “cat-and-mouse” between the courts and the legislature, judges are already coming up with innovative ways to address the issues raised by this new law. In the recent case of The Queen v. Marvin Johnson, Ontario Court Judge Melvyn Green recently found a way around the ban on 2:1 pre-trial custody by deciding that if he could not give Mr. Johnson credit for the time he had served at the front end of the process, he would simply reduce the amount of time that he would have left to serve on the back end. Case closed.