SENTENCING – CREDIT FOR TIME SERVED REVISITED

 

In determining the sentence to be imposed on a person

convicted of an offence, a court may take into account

any time spent in custody.

Criminal Code of Canada, s. 719(3)

1. Introduction

  Giving offenders a sentencing credit for time served before trial has attracted a good deal of public and media attention. Many commentators blame trial judges for allowing offenders this credit. However, the requirement to do so is set out in many appellate court decisions that trial judges are duty bound to follow.

2. History

   The double time credit first arose in Toronto apparently because of "deplorable conditions" in Toronto’s pre-trial custody facilities. They were then and may still be "desperately overcrowded and rife with violence and disease." However, that does not seem to be the case in similar facilities outside of Toronto nor in any other Canadian province.

   B.C., provincial jail pre-trial conditions are essentially the same as conditions for prisoners already sentenced. There have not been and still aren’t any condemnations of B.C. provincial jails similar to those levelled at Toronto’s pre-trial facilities.

   Nonetheless, Canadian appellate courts decided that offenders who served time waiting for trial in every provincial jail were entitled to at least a double time credit unless prosecutors proved otherwise.

   Offenders gradually caught on to the advantages of the appellate courts’ double credit by not applying for bail "in order to rack up as much pre-trial (custody) time as possible." Here is the way it often works.

   If offenders waiting trial realize they will probably receive a 4 year sentence if convicted, they will drag out the wait as long as possible for 2 years by seeking adjournments, bringing on motions for disclosure, delaying the completion of preliminary hearings, etc. Once 2 years pass they will then plead guilty.

   Assuming they receive a sentence of 4 years, they will then get the credit of double the 2 years of wait off their four year sentence and walk out the jailhouse doors.

3. Federal government amendments to s. 719(3)

   Within the last 12 months or so, the federal government persuaded the House of Commons to approve amendments to section s. 719(3) by restricting the amount of the credit to the actual time the offender spent in pre-trial custody. The Bill now languishes in the Senate.

   One provision is that trial judges may allow a credit on a 1.5 to one ratio providing they give reasons. Very few Provincial Court trial judges who do over 95% of criminal offences have the time or the administrative support to write these lengthy reasons as Parliamentarians should know. That will not stop appeals that they should have given the 1.5 credit.

   Lost in the debate is the reason why offenders serve time in jail pending trial. Generally this happens for three reasons. First they never applied for bail. Second, they probably would have been denied bail because they are a flight risk and might not turn up for their trial. Or third, if released on bail they might interfere with prosecution witnesses.

   It is hard to understand why offenders should get a sentencing benefit because they failed to apply for bail or it were refused because of their bad character traits.

4. Interpreting s, 719(3)

   A plain reading of the above section indicates that trial judges "may", not "must" take into account any time an offender spent in custody. For the most part Canadian appellate courts have decided that "may" usually means "must."

   If trial judges do not give the credit they must provide reasons that meet the standard of appellate court review. Appellate courts easily can find trial judges’ reasons failed to reach that standard. Besides, trial judges often sentence 12 or more offenders a day in a busy Provincial Court. They just don’t have the time or the administrative support to write these reasons.

   Prosecutors rarely object to judges giving a sentencing credit for time served because they too rarely have the time and resources to prepare a case against the discount that will eventually satisfy their provincial appellate court.

5. Credit for time served in other jurisdictions

   An internet search on the subject covering the U.K., America federal and state courts and Australia states courts indicates that most have provisions for giving offenders credit for time served. But it seems to be used sparingly and not automatically. Under the American court system, when legislators give trial judges a discretion, appellate courts will not overturn that discretion if it is inside the boundaries set by the legislators. Australia appears to be the same.

  But in Canada, even though trial judges exercise their discretion within the boundaries set by legislators, appellate courts will intervene and substitute their discretion because "the trial judge did not act judicially." Sentencing is a prime example.

6. Parliamentary due diligence

   Due diligence is a relatively new term used for a number of concepts involving either the performance of an investigation of a business or person, or the performance of an act with a certain standard of care.

   In this day and age, the act of drafting laws requires due diligence with a high standard of care. To meet that standard of care Parliamentarians should have posted papers on line describing attendances and interviews with frontline provincial defence and prosecuting counsel, provincial trial and appellate court judges, provincial prison guards, etc. from all ten provinces. They should avoid relying on any high ranking officials such as federal and provincial Cabinet Ministers and Attorney Generals. Usually, those politicians are just briefed by their own officials who usually want to put the best spin on their operations.

   Due diligence is an onerous obligation since the Constitution mistakenly restricts Ottawa to just enacting Canada’s criminal laws and leaves to the provinces the far more difficult job of making those laws work in practice. Provincial civil servants are not responsible to federal law makers. And, there are no federal civil servants in provincial courthouses that federal law makers can call upon to get information on how its legislation works in practice. Consequently, federal legislators more or less "wing it" in the vain hope their legislation will be practical. Often it is not. Credit for time served is a good example.

   In other words, the way that Ottawa goes about amending the criminal law in isolation falls far short of any due diligence standard.

Bottom line:

1. Because our Constitution mistakenly gives the legislative or theoretical side of the criminal law to the federal government and reserves the administrative or practical side for the provinces, Ottawa cannot be expected to know much about how its criminal legislation is administered in each province and by the courts of those provinces.

2. If the Constitution gave the provinces authority to enact and administer their own criminal law as happens in the 6 Australian states and the 50 American states each province could decide whether to give or not give credit for time served and if so for how long.

3. Besides the necessity for Constitutional change with respect to criminal law, a Sentencing Guideline System would solve the problem of credit for time served and the courts would have no involvement.

3 October 2009