- Criminals convicted in Canada will no longer be able to receive double credit for time served before trial unless there are exceptional circumstances.
- Federal Justice Minister Rob Nicholson will announce in a news conference on Parliament Hill this afternoon he is enacting the legislation that eliminates the common practice of two-for-one credit for pretrial custody.
- The bill will mean any time spent in custody before you are convicted will be credited for only the exact number of days already served when an offender is sentenced. Before this law, a court often would give double credit for the time served before trial. Depending on the delays between arrest and trial, the practice sometimes means an offender would walk out of jail without having to serve another day in jail after their conviction.
- The bill will affect only those convicted after it takes effect and he expects it will take time to see the impact of the bill.
- Today, about 60 per cent of inmates in provincial jails are legally innocent and awaiting trial. A minority – 40 per cent – have been convicted of crimes and are serving their sentences
- The pretrial rate is even worse for some of the most marginalized members of our society such as Aboriginals and minority groups.
- Aboriginal youth, for example, account for about six per cent of the population but 26 per cent of those in pre-trial custody.
- The Canadian Bar Association (CBA) says the proposed amendments to the Criminal Code in Bill C-25 will have an adverse impact on the fair and effective administration of criminal justice across Canada. It will limit judges’ discretion in awarding credit for time spent in custody prior to sentencing, while adding financial pressures to the system.
- “The better answer is for the government to ensure that judges retain discretion to determine appropriate credit for pre-sentencing custody in each case, and persons in custody while awaiting trial have access to early court dates,” says Eric Gottardi of Vancouver, of the CBA’s National Criminal Justice Section.
- Bill C-25 would limit the practice of giving enhanced credit for time spent in pre-sentencing custody. In its letter to the Senate Committee on Legal and Constitutional Affairs, the CBA notes that the practice of enhanced credit for some pre-trial situations was developed to take into account the fact that some offenders, while still presumed to be innocent, were incarcerated in conditions worse than they would experience after conviction. Those conditions include lack of rehabilitation and training programs and overcrowding. The current enhanced credit system also recognizes that pre-sentencing custody does not count toward an inmate’s eligibility for parole or statutory release.
- The CBA says the discretion as to what credit is appropriate should remain with the judge in each case. “As lawyers for both the prosecution and the defence, we are in Canadian courts every day,” says Eric Gottardi. “We know that judges do well at – and are best placed to arrive at – a just and appropriate sentence once an offender is found guilty, taking into account all the factors in each case, including the length and circumstances of any pre-trial situation.”
- The CBA also notes that the Bill would have a disproportionate impact on disadvantaged populations that are more likely to be denied bail, including Aboriginal people who are already over-represented in Canada’s prisons. In its submission, the CBA refers to R. v. Hall, 2002 which cites a study by Professor Martin Friedland that found a clear relationship between custody pending and the trial itself. Not only was pre-trial custody likely a factor in inducing guilty pleas, but those not in custody during the trial were more likely to be acquitted than those in custody, and, if convicted, were more likely to receive lighter sentences.
- The CBA concludes that the Bill would lead to increased financial pressures for administering justice, longer sentences and unjustifiable discrepancies in sentencing.
- It could also lead to more overcrowding in prisons as people may now have to serve longer sentences as they can't get double time credit anymore.
- The practice, which had been at the judges' discretion, was intended to compensate prisoners for the time they spent in cramped holding cells in detention centres.
- Bill C-25 is premised upon what seems a sensible and straightforward idea: for each day an accused person is sentenced to serve in custody, one day in custody shall be served. Proponents of the legislation criticize the fact that presently, judges have discretion as to what credit is given for time spent in custody at remand.
- A judge can say that an offender's personal circumstances and the circumstances of the offence for which he is being sentenced justify, for example, a one-year sentence. The judge can then lawfully say that since the accused spent three months in pre-sentence custody, he may be given credit on a two-for-one basis for that time, and he will therefore receive six months credit. He will thus be left with six months to serve in jail.
- Many see this situation as unjust and view such a sentence as letting the offender off easily. These views are understandable, as the public is not generally aware of the specific provisions of corrections legislation nor of the conditions at remand facilities throughout Canada.
- The sentence that an individual will, in fact, serve in custody once sentenced is guided by the Corrections and Conditional Release Act. That Act provides that offenders will typically be released on parole after one-third to two-thirds of their sentences. Time spent in pre-sentence custody does not count towards parole eligibility; hence the term "dead time". That is, if an individual received a custodial sentence (assuming, of course, he was found guilty), he would immediately begin serving his sentence, all of which would count towards the date on which he would be paroled. An individual who spends, for example, a year in pre-sentence custody at a remand facility and is then sentenced, will receive no credit towards parole for the time spent in a remand facility.
- Bill C-25 will limit the credit which a judge can give to an offender for time served in pre-sentence custody to one for one. In very rare situations, it will permit a judge to grant 1.5 for one credit.
- This legislation completely ignores the fact that conditions in pre-trial detention centres are dramatically worse than those in facilities where sentenced offenders serve their sentences. Bill C-25 is based on a conception of the two types of facilities as parallel. This conception is incorrect.
- Prisoners in remand facilities are kept in much more crowded conditions than sentenced prisoners. They are often triple-bunked, and individuals must frequently sleep on the floor.
- The overcrowded conditions have known effects on the mental and physical health of many inmates.
- Access to health care is poorer in remand than in prisons.
- Prisoners in remand have almost no opportunities to engage in rehabilitative programs, pursue education, exercise and do other things that might benefit them or help them to become more law abiding citizens once they return to the community.
-Many inmates who have served time in remand end up being acquitted and have been punished not for any offence which they have been found guilty of but instead, for other reasons (such as failing to appear in court in the past or having committed crimes in the past with respect to which they have already served their sentences).
- Bill C-25 will not only improperly reduce pre-trial credit to a number but, in addition, reduce it to the wrong number. It will tie the hands of judges, leaving them with virtually no discretion to impose the sentence which they see as fair, just, and appropriate considering the offender's circumstances.
- Crown prosecutors routinely join with defence counsel in suggesting to judges that credit ought to be granted to offenders for their time at remand facilities on a two-for-one basis. This is because Crown prosecutors, as well as defence lawyers, recognize the very compelling reasons for granting credit for harsh pre-sentence remand custody.
- This legislation will have a much more significant effect on Aboriginal inmates and the mentally ill as well as those in northern (especially rural) communities. It will also have a disproportionately severe impact on the poor. It is not uncommon to see individuals (frequently Aboriginal individuals) who remain in remand centres for months even though they have been granted bail.
- They are, however, unable to raise that amount of cash to secure their release, so they are forced to remain in remand facilities. Others who have resources or who have families who do not live in poverty will not suffer in this way. Bill C-25 will make no differentiation between this type of person and one who is denied bail outright by a justice of the peace or a judge.
- The Bill will also induce inmates who may be innocent to plead guilty because they are desperate to get out of the remand centres where conditions are poor.
- Some will plead guilty, when they are actually innocent, just to escape to a serving institution where parole provisions will apply and where the conditions are much better.
- A wrongful conviction is a tragedy no matter what the cause, even if the person pleads guilty.
- The Government of Canada's own statistical studies have shown that harsh conditions at pre-trial detention centres do induce guilty pleas.
I am not aware of any problems we were having with the 2 for 1 credit and don't think this change will have any impact on crime. I think criminals should be credited 2-for-1 because in remand, they do not have access to rehabilitative programs and are subject to poor conditions and they have not yet been convicted of a crime and should be credited. What if you had spent for example, a year in pre trial custody only to be acquitted of the charges at trial or not sent to prison at all? You would want that time to be credited, seeing as it didn't count towards anything. It may also induce innocent people to plead guilty to a crime they didnt commit, just to escape the poor conditions of remand custody for something better; prison.
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