OTTAWA – The Conservative government says it will end the practice that allows judges to calculate a "two-for-one" sentencing credit for time that convicted criminals spend in pre-trial custody.
Justice Minister Rob Nicholson told reporters today that he will introduce legislation on Friday that would change the sentencing regime that gives judges discretion to adjust sentences.
Right now, the practice sees offenders get credit for so-called "dead time" spent in detention centres prior to trial and sentencing, where there is no access to drug or alcohol treatment, rehabilitation or other therapeutic programs provided in long-term penitentiaries or provincial prisons.
Nicholson said offenders sometimes get not just double the credit but "three-for-one" credit for time served. He said he expected the other parties to support it, and hoped it would pass in a day.
The announcement, leaked beforehand to CTV News, has long been a demand of B.C.'s justice officials who are struggling to combat organized gangs.
The Opposition Liberals have been calling for the move in the Commons, in support of B.C.'s calls, for several weeks.
Robert McMynn, father of kidnap victim Graham McMynn, recently decried the credit after his son's captors were able to ease their final sentence by six years, due to the "two-for-one" credit for time served prior to sentencing.
"I understand the logic behind double time, but I don't agree with it. I don't think the (sentences) are long enough but I understand the judge is bound by past sentencing . . . you're bound by precedent," Robert McMynn said in late February.
Judges have the discretion to calculate the two-for-one credit and are not bound to give an offender the break, but it is a commonplace practice.
Criminal lawyers say the federal government's plan is poorly conceived and won't make anyone safer.
"It's toughness unguided by thinking," said Frank Addario, president of Ontario's Criminal Lawyers Association. "At a time when the Americans are finding out that harsh sentences are expensive and ineffective, our government is taking us down the same road."
More importantly, the changes contemplated by the Conservatives are unnecessary, defence lawyers argue.
Those who support the proposed legislation believe that abolishing enhanced credits for pre-trial custody will reduce the number of court appearances made by offenders before a trial. On this school of thought, accused people are deliberately dragging out their cases to rack up dead time credit and have their sentences reduced substantially once they plead guilty.
Picking up on this theme, last December, Ottawa police chief Vern White suggested that abolishing enhanced credits for pre-trial custody would help reduce overcrowding in the province's jails.
But there's one major problem with this theory, Addario said.
It is already the law in Ontario that if a prisoner delays a guilty plea to accumulate "dead time," he will not be given such credit. That principle was established in a 2007 decision by the Ontario Court of Appeal.
In a letter yesterday to Ontario Attorney General Chris Bentley, who is said to support the federal government's plan, Addario said he is not aware of any empirical evidence to support the theory that accused people are manipulating the system to obtain reduced sentences.
Addario also points out that a "substantial portion" of defendants who can't make bail are poor, homeless, mentally disordered or Aboriginal. Reducing credit for pre-trial custody punishes the least fortunate caught up in the justice system, he said.
Addressing the issue in its decision two years ago, in a case of a 52-year-old man who was a chronic alcoholic with a history of impaired driving convictions, Justices Michael Moldaver and Harry LaForme of the Ontario Court of Appeal said time spent in pre-trial custody is traditionally considered on a two-for-one basis because, in most cases, the provincial parole process and federal laws governing release from penitentiaries do not take into account the time an offender has spent in jail awaiting trial.
Enhanced credit is also given in recognition of the rather desperate conditions of most provincial jails, which, in addition to being overcrowded, normally do not provide educational or rehabilitation programs.
