Earlier this year, the government amended the Criminal Code and ended a longstanding and well recognized principle that in almost all cases offenders who were found guilty had two days taken off their sentence for every day they had spent in custody prior to being sentenced. The government changed this because there was a widely held view in some circles that offenders were in some way “getting away with something”. It was seen as unfair that the sentences were reduced by what seemed to be an undue amount.
In fact the two for one principle arose because of two distinct and complimentary reasons. Firstly, according to existing laws on parole, an offender is generally released from his sentence between one third to two thirds of the entire sentence. To illustrate, if a person is sentenced to three years, they will generally serve between one and three years. In other words again, if you took all offenders, they would generally serve as a group something like half of their sentences before being released on parole. To reflect the same reality for pre trial detention is only fair.
The other factor is that detention centres where persons are kept prior to trial or plea are often very difficult places to serve time. Over and over Courts have been forced to recognize that conditions in such places are nothing less than terrible. The Don Jail has a terrible history of rodent infestation, disease, violence and terrible overcrowding. The programs, counseling and other services availavle to sentenced offenders are by and large absent from provincial detention centres.
Neither of these two reasons were given any recognition by the “Truth in Sentencing Act” which made a presumption for only deducting one day from any sentence for each day served in pre trial detention. In some cases, under the new legislation, Judges could give as much as 1.5 days credit but only when certain difficult criteria are met. Also, certain determinations made by the detaining Justice of the Peace determine what credit can be given. This last part is all the more disturbing when you consider that the detaining Justice knows little about the person they detain, while the sentencing Justice knows a great deal more. Also, in that case, the detaining Justice of the Peace, a non lawyer, is tying the hands of a Provincially appointed Judge or a Superior Court Judge.
In the trenches of the Criminal Courts in the GTA, we are seeing more and more that one for one is the norm and that Judges are rarely willing to go above this. This is a very significant change in criminal sentencing. Among other things it will increase prison sentences as people will have less credit for pre trial detention. It is not unrealistic to think that for persons found guilty at trial, their real sentences may be increased by six months to potentially several years. Many of us are concerned increasing sentences is unjust and does not achieve a safer society. There is real reason to believe that increasing penalties does not deter people at all from committing crime. (Derstine Penman is challenging the constitutional validity of mandatory minimum sentences on that basis in the fall) In addition to that it is also extremely expensive. The cost of incarceration is high on inmates, but it is also high on society at large. Current estimates by reputable sources are that it will cost one billion dollars per year to pay for the increase in incarceration.
This bill and its effects purport to create truth, but in fact create only longer and more inflexible sentences. The United States has gone down that route and has incarcerated a higher percentage of its population than the world has ever seen. Its budgets groan under the crushing weight of paying for the prisons and the society is no safer. It is time to end such laws and let sentencing Judges weigh the proper sentences unfettered by arbitrary and unfair laws.