End of 2:1 pre-trial custody credit in criminal sentencing.

pre-trial custody sentencingThe Conservative Government announced today that they intend to scrap the two-for-one sentencing credit that is typically applied to individuals who are held in custody pending the outcome of their case.

This recent pronouncement seems to be catering to anecdotal outrage over certain cases and how individuals are seemingly “taking advantage” of the system.  In my experience, this is grossly outweighed as an exception rather than the rule.

Limiting the discretion of judges.

In essence, the proposed changes to the sentencing regime would limit the discretion of judges to credit people for time they have served up to their sentencing date.   Removing the discretion from judges is certainly not unusual for the present government, yet what is surprising in the present instance is the lack of foresight that such changes would bring upon.

What the consequences are for offenders:

Here are a few observations on the proposal from the eyes of a practicing defence lawyer who sees these realities on a daily basis:

  • Other than life sentences, parole eligibility and statutory release (as mandated by law) do not take into account time spent in pre-sentence custody which means that a person is effectively serving more time on a 1:1 basis as they would normally only serve 2/3 of the sentence on statutory release and parole (1/6 if released on early parole).
  • In pre-trial custody, that there are few, if any, rehabilitative, educational or retraining programs available.   This means that even a person who is adamant to change their ways, move beyond their mistakes in life, and reintegrate into society has no ability to do so when awaiting their trial.
  • It is nearly incontrovertible at this point to say that the conditions in detention facilities are deplorable in comparison to federal institutions.  The detention centers are crowded, dirty, do not allow for significant exercise, and generally speaking, violate a number of UN protocols on humane treatment of inmates.
  • To remove this enhanced credit, will remove incentives for persons to plead guilty.  If a person is in a situation where they will serve a sentence of 4 years (for example) whether they proceed to trial, or plead guilty, there is no incentive to accept responsibility at an earlier stage.   The consequences from such an arrangement will result in more resources vis a vis tax payers dollars.
  • People in pre-trial custody are, by definition, yet to have their case determined.   In law, they are innocent people behind bars awaiting the resolution of their case one way or another.  The conditions of these institutions where they are housed are deplorable and difficult to fathom for anyone who has not spent time in them.  And contrary to popular opinion, not all of them are guilty.  Indeed, many are acquitted after trial and have served time they will never get back, not be compensated for, and will likely have changed them forever.  There is no such thing as 2:1, or 1:1 or even a “sorry” after injustices like this occur except in those rare high profile cases where the government is forced to admit their mistakes.
  • Judges already have the discretion to allow, or disallow pre-trial enhanced credit.  There is no reason whatsoever that the Crown Attorney’s cannot argue and push for either a) no enhanced credit, or b) a longer sentence.  Judges are obliged to impose a sentence that they consider just in the circumstances and in my experience that is exactly what they do.  To take away the discretion of judges is just one more example of politicians self-proclaiming themselves as the experts and usurping the expertise and practical knowledge of the professionals who work in the business.  One only look to their own profession or business to understand how politics does not mesh well with practice; the practice of law is no different.
  • It seems that we are overlooking that a large number, if not the majority of sentences that are being imposed by judges, are “joint positions”.  This means that the Crown Attorney’s will routinely go along with such proposals in order to resolve a case, ,prevent it from going to trial and wasting tax dollars, and most importantly, because it is fair and just.  Sentences are tailored not just byt he judges, but by all parties: defence, Crown, and judges.  To blame only the judges or defence counsel for somehow creating these alleged abuses is unfair and inaccurate.
  • We only need to look to the south of the border to understand that greater incarceration does little, if anything for reducing crime rates and the safety of the pubic.
  • People who are not granted bail, that is to say, people who are presumed innocent, are often those with no money, friends, or family support.  They are the poor and disadvantaged that have become lost in more and more unreasonable expected forms of releases.   It is the de rigueur that for a bail to be considered tenable for the deciding justice, it must include assets of a third-party, constant supervision, and residence conditions.  Releases on one’s “own recognizances” has largely become a thing of the past.

I could go on, and likely will in another context, but suffice to say that one needs to be careful of offering up constitutional protections such as fairness, humane treatment of inmates, and flaming the fire of mandatory minimum sentences, removal of judge’s discretion, and the ability to argue for exceptions to the rule.   If you or a family member is wrongly changed, it may be too late to take back your liberties and rights that were sacrificed in the hope of security.

No one is an exception to the rule, when the rule is there are no exceptions.

2017-02-15T14:44:11+00:00

About the Author:

Sean Robichaud is lead counsel and owner of Robichaud's.