Few were surprised, then, at the rhetorical slugfest incited by the federal government’s introduction on March 27, 2009, of bill C-25, designed to “clearly limit the amount of credit that the courts may grant to convicted criminals for the time they served in custody prior to their sentencing.”
The vociferous debate which has erupted is perhaps best characterized by states of mutual incomprehension: it sometimes seems as if each side is participating in an entirely different conversation. They are, to borrow a phrase, both speaking English, but they aren’t talking the same language.
What began as a statutory mechanism in s. 719(3) of the Criminal Code allowing judges the discretion to “take into account any time spent in custody” has ossified into a “two-for-one” sentencing convention which appears at times to be mechanically applied by judges irrespective of the circumstances of the crime or the lengthy rap sheet of the offender (though there have been recent high-profile examples of a judge declining to accord the credit, as in the case of Mohammad Momin Khawaja).
The sight of seeing convicted criminals walk out of court essentially free on the day of their sentencing, or having lengthy sentences of incarceration significantly reduced, because of crediting produces a viscerally negative response from many observers.
The “pro-credit” and “anti-credit” positions map roughly, but not precisely, onto “liberal” and “conservative” political positions.
News reports indicate that the federal Liberal and New Democrat opposition parties will support the bill.
Annual meetings of the federal, provincial, and territorial attorneys general in 2007 and 2008 produced consensus across party lines that the Criminal Code be amended to curtail the availability of the sentencing credit. Attempts to pre-empt the debate by hanging a simple political label to the legislation or various participants prove elusive.
The current text of bill C-25 stipulates that any pre-sentence custody be credited at a one-to-one ratio, unless circumstances warrant a more generous credit, which in such exceptional cases would be capped at 1.5-to-one.
Where pre-sentencing custody was imposed because of the accused’s criminal record or violation of bail conditions, no enhanced crediting would be available.
There is a deceptive simplicity at play, however. What at first appears to be a discussion about a relatively straightforward piece of legislation reveals itself as the locus of a much fiercer and wide-ranging dispute about crime, criminals, judges, and politics.
Because each side begins with such radically differing premises, it is perhaps no surprise they employ fundamentally different arguments. From the pro-credit vantage, they see a repressive and sluggish criminal system that unfairly punishes accused criminals and which bears those hallmarks largely as a result of the ideological intransigence of their opponents.
For those on the anti-credit side, there looms a frighteningly lenient and ineffective system which coddles criminals and spares little concern for the sensibilities of victims or the safety of the public — largely because of the ideological efforts of the other side.
From such unfertile ground grows disputes which do little to change the mind of either side.
Once the argument is joined, it quickly becomes a bewildering series of feints, counter-punches, and shifting ground.
Opponents of the bill describe pre-sentencing custody as a hellish limbo: overcrowded, unsanitary, and lacking basic rehabilitative or recreational services. Crediting, on this account, serves to ameliorate this dead, hard time, which is served and which, except for limited circumstances, does not count towards parole or statutory release eligibility.
The problem, say the bill’s opponents, is not sentencing credits per se, but the lack of funding for swift trials and humane conditions in remand. Address those more pressing concerns and the time spent in remand would dwindle, thus resulting in less glaring reductions in total time spent behind bars.
The bill’s proponents, on the other hand, contend that the foregoing points are not arguments in favour of two-for-one sentencing credits, but arguments only in favour of fixing the specific problems raised. Instead of proving that crediting is just and removing it unjust, they simply prove that more money needs to be spent on shortening time to trial and expanding the space and programs available for those in detention.
And besides, issues like administrative reform are properly the constitutional domain of the provinces — and many of them, such as Ontario, are already undertaking initiatives to speed up criminal trials.
Calls that appeal to the plight of the accused stuck in remand (who is still presumed innocent) are countered with arguments pointing out that no innocent person gets the benefit of a two-for-one credit — only convicted criminals receive such treatment, while an innocent released from remand leaves with no remedy or compensation whatsoever.
From there, the rhetoric becomes more charged and political. Anti-creditors cite anecdotal evidence that accused are gaming the system, artificially prolonging their time in remand knowing they will thereby dramatically reduce their time in incarceration following sentencing.
Those who argue in favour of crediting, such as prominent defence counsel Edward Greenspan in the Ottawa Sun, cite anecdotal evidence to insist that no such thing is occurring and that any delays are actually the result of prosecutorial foot-dragging.
Some, like Osgoode Hall Law School professor James Stribopoulos on The Court blog, in addition to the foregoing arguments, see reducing the sentencing credit as only the latest manifestation of a tough-on-crime strategy that takes its inspiration from allegedly ineffectual and outdated U.S. models.
They argue efforts are wasted on a flashy announcement that fails to address underlying systemic problems.
In rebuttal, anti-creditors note that this proposal has secured consistent support from disparate individuals and parties at all levels of government, and that this is simply the latest in a long line of incremental changes being implemented by the Conservatives.
Questions about judicial discretion are often raised.
One side argues that this is simply another attempt to limit the ambit of discretion in a politically motivated crusade against the judiciary.
The other side argues that such limitation is precisely the point: judges have been, to quote The Globe and Mail editorial in support of eliminating the credit, “too generous” in favour of convicted criminals, resulting in a criminal justice system that delivers “short sentences even for serious repeat offenders.”
The other side ripostes that perceived leniency in sentencing is a misconception; a litany of startlingly short sentences are thrown back in response.
In short, the seemingly discrete issue of two-for-one sentencing credits quickly devolves into a maelstrom of conflict about an array of issues, few of which admit of any imminent rapprochement.
But while the specific issue of crediting and the wider political issues seem destined to suffer from a perpetual lack of agreement, there seem to be at least some initiatives which obtain support across any ideological divide.
The calculation of parole and statutory release eligibility dates for all offences should be revised to take pretrial custody into account (currently only those convicted of homicide are entitled to such consideration).
More funds and concerted efforts need to be deployed by both federal and provincial governments to ensure improved conditions in remand and expanded court facilities and prosecution resources.
Given the multiplicity of initial premises, the irreconcilable nature of the underlying political stances and the divergent interpretations of events, perhaps the best prospect for a resolution to the issue lies in using the statutorily defined goals of sentencing to provide a framework for analysis.
As set out in s. 718 of the Criminal Code, the purpose of sentencing is to engender “respect for the law and the maintenance of a just, peaceful, and safe society.” That is to be achieved by the imposition of sanctions which manifest one or more of the goals of denunciation, deterrence, separation of offenders, rehabilitation, reparation to victims, and the promotion of a sense of responsibility among offenders.
Each side of the discussion should strive to frame its argument in terms of answering whether those purposes are enhanced or undermined by the use of two-for-one sentence credits.
As an example, is the concern that remand offers insufficient rehabilitation programs well served by arbitrarily reducing the amount of time offenders spend in that portion of the prison system where rehabilitation programs are available?
Arguments about crime are often disguised arguments about justice. And we are no closer to formulating a universally agreed definition for that concept than we have been over the last 2,500 years.
The best we can hope for is to engage in a dialogue using mutually agreed parameters — s. 718 offers us those parameters.
Or perhaps we can use a different, simpler, measurement as a proxy for assessing bill C-25. Perhaps we should recognize that if the federal Liberals, New Democrats, and Conservatives are in agreement on a particular piece of legislation, particularly in an area as contentious as criminal justice, it has something to recommend it.
Bob Tarantino is an entertainment lawyer and freelance writer. He can be reached at [email protected].?
