VANCOUVER -- A new Canadian law that limits the ability of judges to reduce criminals' sentences based on time they spend in jail awaiting trial could fail a charter challenge, according to prisoners' advocates.
They say it's just a matter of time before judges now granting double-credit for pre-trial custody during sentencing will again automatically grant the 1.5-credit the law allows under certain circumstances.
"The law says 1.5 credit with reasons," said Craig Jones of the John Howard Society. "It's not hard to craft reasons."
The new federal law -- passed six months ago and which came into effect late last month -- puts an end to the automatic granting of two-for-one credit for so-called "dead time," or the time the accused spends in jail before being sentenced.
The change, which the federal Conservatives and other proponents say will clear out crowded remand centres clogged with those who choose to stay in jail knowing they will have the time shaved off their sentence once convicted, affects sentencing only for charges laid after its implementation date of Feb. 23.
Under the new rules, for instance, Victoria investment adviser Ian Thow would be facing eight, not seven, years after he was convicted this past week of 20 counts of fraud totalling $8-million.
His nine-year sentence was cut by two years for the year he spent in jail awaiting trial.
"It takes away the incentive for individuals to remain in jail [before trial]," said Pamela Stephens, a spokeswoman for federal Justice Minister Rob Nicholson.
Granting double-time credit became the norm to compensate the accused's stay in overcrowded remand centres, where prisoners have no access to education programs or rehabilitation, and to make up for the fact that time wouldn't affect their parole eligibility or release date.
"It was a practice that was well-intentioned, but whose usefulness has well expired," said former B.C. attorney-general Wally Oppal, who said he led the charge among attorneys general across Canada to get the law changed to ease crowding in remand centres.
Mr. Oppal said he's confident the law's one-for-one credit limit will withstand a court challenge.
"We were the only country in the Western world to allow this kind of credit," he said. "Why is it so unfair to actually serve the time you're sentenced?"
Opponents say there is no evidence that those awaiting trial are choosing to remain in jail to rack up credit for dead time, and some are predicting the change will cause overcrowding in jails.
They also say expected Charter of Rights and Freedoms challenges will cause a backlog when those cases eventually make it to the sentencing stage over the months and years ahead.
The new law states that credit be capped at a one-to-one ratio. Judges can grant credit at a 1.5-to-one ratio but it "requires courts to explain the circumstances that justify a higher ratio," according to the Justice Department.
Defence lawyer Dil Singh Gosal of Surrey, B.C., said if a successful charter argument allows for 1.5-credit in one case and that ruling survives an appeal, that could set a precedent.
"I don't think the judiciary will be too keen to give someone one-to-one credit," considering the conditions in remand and the length of pre-trial custody, he said, citing one client who won't go to trial on drunk-driving charges until April 2011.
Mr. Gosal, who also has practised in Washington state, said there's no two-for-one credit in the U.S., but the American Constitution guarantees a right to a speedy trial and the system moves much more quickly there.
"In Canada, we only guarantee you'll get a trial in a ‘reasonable' period of time," he said.
Ms. Stephens said courts will be given "clear guidelines and limits" and 1.5 credit will be allowed only in "exceptional circumstances" -- for instance, someone denied bail for a situation beyond his control.
The law states those in custody because of a criminal record or bail violation aren't eligible for extra credit.
And Mr. Oppal, who said he expects defence lawyers to challenge the law under the charter, said it's written to withstand such a challenge.
"I don't think it will ever get to a point where it's set aside," he said.
To reduce overcrowding we need to abolish mandatory minimum sentences and give judges more discretion in considering all circumstances of an offender and their crime, abolish cell sharing, and the courts need to rely less on imprisonment for non violent, drug and property offenders and more on addressing the root causes of crime through community based sanctions, programming and treatment.
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