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

CRIMINAL LAW – SENTENCING – MINIMUM AND MAXIMUM SENTENCES

 

1. Introduction

   Canada’s federal Parliament may set mandatory minimum and increase maximum sentences for the crimes or offences it creates. Conflicts occur when mandatory minimum sentences are found to be unconstitutional by the Supreme Court of Canada (SCC) and increased maximum sentences clash with other sentencing principles.

   This posting tries to illustrate the nature of Canada’s highly technical and contradictory sentencing system. Literally, appellate courts have written millions of words and hundreds of thousands of pages trying to rationalize sentence under a confusing and often contradictory system. Trial judges resign themselves in trying to meet the vague standards set by the appellate courts and at the same time satisfying public demand.

2. Mandatory minimum sentences

   Parliament sometimes fixes mandatory minimum sentences when there is an outbreak of certain crimes that it wishes to deter. Judges cannot sentence below that minimum.

   In a 1987 decision called R. v. Smith, the SCC considered the legality of an 8 year sentence for importing illegal narcotics into Canada. The quantity involved was 7.5 oz. of 85% to 90% of pure cocaine that the defendant brought back from Bolivia. At the time, Parliament fixed a mandatory minimum of 7 years for this offence.

   The SCC found the Parliamentary 7 year minimum was so excessive as to outrage public decency. It held the minimum should be declared unconstitutional because it infringed the defendant’s s. 12 Charter right to be free of "cruel and unusual punishment." The court returned the case to the BCCA to fix an appropriate sentence.

   Black’s Law Dictionary defines cruel and unusual punishment as "Punishment that is tortuous, degrading, inhuman, grossly disproportionate to the crime in question, or otherwise shocking to the moral sense of the community."

  Had Mr. Smith eluded Canadian customs officials, he could have diluted the almost pure cocaine into many smaller packages for street sale. Police now estimate that 75% of all crime is drug related. My police sources tell me that the 7 oz of cocaine probably would be diluted into 70 to 140 packages for street sale. Given these facts, arguably an 8 year sentence today for a similar offence would not be grossly disproportionate to his crime or otherwise shocking to the moral sense of the community.

   Today, the statutory maximum for such importation is 10 years. There is no mandatory minimum. Sentences now range from 2 to 10 years depending upon the quantity of drugs and their addictive character.

  The fallout from the 1987 SCC decision seems to have dampened Parliament’s enthusiasm for setting minimum sentences for other crimes because the SCC might declare them unconstitutional.

4. American law on sentences amounting to "cruel and unusual punishment

   The Eighth Amendment to the U.S. Constitution prohibits sentences that amount to cruel and unusual punishment. See:

http://en.wikipedia.org/wiki/Eighth_Amendment_to_the_United_States_Constitution#Punishments_specifically_allowed

   A 1972 decision of the U.S. Supreme Court (UCSC) called Furham v. Georgia set four principles for determining whether a sentence was cruel and unusual. They are:

 A severe punishment that is obviously inflicted in a wholly arbitrary fashion

 A punishment must not by its severity be degrading to human dignity," especially torture.

 A severe punishment that is clearly and totally rejected throughout society.

 A severe punishment that is patently unnecessary.

   When it comes to drug possession, in 1991 the USSC allowed a mandatory sentence of life imprisonment for the offender’s possession of 650 grams of cocaine. Applying Canada’s 1987 Smith decision to the American test makes it at least arguable that Mr. Smith’s sentence of 8 years for importing 7.5 oz. of almost pure cocaine was not cruel and unusual punishment.

4. Maximum sentences

   Each crime in Canada’s Criminal Code sets a maximum sentence for offenders who commit the offence. Very few ever receive the maximum. For example, the sentence for breaking and entering a dwelling house (B&E/; home invasion) is life imprisonment. Appellate courts have approved a few sentences of 11 to 13 years. Mostly they restrain trial judges from imposing sentences of no more than 7 years.

   Sometimes Parliament raises the maximum length of a sentence for a particular crime from say 5 years to 10 years. It does so because it believes the previous maximum was so low that sentences did not sufficiently deter offenders from committing the crime.

   When sentencing under the new 10 year maximum regime, how do trial judges fix a reasonable sentencing figure? The Criminal Code says that "sentences should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." It would seem to follow that when trial judges sentence offenders convicted under the new 10 year maximum regime, they must impose a sentence "similar to" those given under the previous 5 year maximum regime.

   Raising the maximum sentence to double the number of years does not raise sentences by the same factor. Perhaps I overlooked sections squirreled away in the Criminal Code rationalizing these conflicts. If not, increasing maximum sentences will have little effect on actual sentences.

Bottom line:

1. Canada’s Constitution mistakenly divides responsibility for the criminal law between the federal and provincial governments. Ottawa enacts the legislation and the provinces administer its provisions. Ottawa has no insider knowledge as to how its criminal laws work in practice because provincial administrators are not responsible to federal legislators.

2.  An interim measure is to establish a federal Sentencing Guideline System controlled by federal legislators under a Commission they establish. The long term measure is to amend the Constitution so that each province can enact and administer its own criminal laws to suit its own particular circumstances as do all Australian and American states.

3. When that happens, most provinces will probably switch to a Sentencing Guideline System. That will relieve judges from exhaustively examining Ottawa’s sentencing system and passing sentences that the public finds unacceptable.

4. In the meantime, trial judges will continue struggling to produce sentences that comply with appellate court judges’ interpretations of Ottawa’s legislation. Thousands of judicial hours and millions of judicial words will be added unproductively to Canada’s sentencing laws.

25 September 2009

CRIMINAL LAW – SENTENCING – SIMILARITY - PROPORTIONALITY

 

A sentence should be similar to sentences imposed on similar offenders

for similar offences committed in similar circumstances.

Criminal Code of Canada, s. 718.2(b)

1. Introduction

        Many Canadians severely criticize the sentencing decisions of trial judges. Mostly they find them too lenient. But trial judges must impose sentences by applying confusing sections of Parliament’s Criminal Code and within very rough guidelines set by their provincial appellate courts. It is no easy task.

   A description of the process for fixing a sentence at the trial level is set out below. It does not follow that every trial judge uses this procedure all the time.

2. Sentencing evidence and information

   When offenders plead not guilty, trial judges apply the facts arising from the trial evidence in support of their sentencing decisions. When offenders plead guilty and do not testify, prosecutors submit the undisputed facts that proved the crime. If offenders have a criminal record, prosecutors put details of that record in evidence at the sentencing hearing.

   Offenders rarely testify at a sentencing hearing by taking the witness stand and giving sworn evidence because they would be exposing themselves to cross examination by the prosecutor. Instead, the law allows their lawyers to pass on unsworn "information" they received from their clients. Usually, defence lawyers will use words such as, "My client informs me he is remorseful for his conduct, he has got back together with his wife and children, he has a job waiting for him if he does not have to go to jail, etc."

   All of that information may be true, some of it may be true or none of it may be true. It depends on how truthful offenders are with their lawyers. Hence, many sentences have a shaky foundation in fact resulting in overly lenient penalties.

3. Sentencing submissions by prosecutors and offenders

    After presenting the evidence and the offender’s information, the lawyers then make their submissions to the judge as to what would be an appropriate sentence. Frequently, they hand up to the judge four or five copies of different previous sentencing decisions given by many different judges over recent years that involve the same crime. Some may be 20 to 30 pages long; others two to three pages. They may all be trial decisions or they may include decisions of their own provincial appellate court. They may or may not contain the age of the offenders, the details of any previous convictions, their work and social history, etc. One sentencing decision of an appellate court that is close to being similar, trumps all other trial court decisions.

   Where the Criminal Code sets a maximum statutory penalty of say 10 years for a particular crime, previous legal decisions relied on by prosecutors usually will suggest a high range of sentence of say between 4 to 6 years. Defence decisions usually will suggest a low range of either one year or at most a conditional sentence (no jail time-2 years less a day maximum).

   Often, any similarity between the details of these previous decisions and those of the case before the trial judge is that they all committed the same crime.

   Failure of trial judges to articulate in lengthy detail the reasons that support their findings is beyond criticism. In a busy Provincial Court, trial judges frequently will hear and pronounce a dozen or more sentences in one day. Provincial governments do not provide administrative resources for them to write lengthy treatises on each sentence. Federal politicians seem unaware of this factor.

4. Sentencing rulings by trial judges

   When sentencing an offender, trial judges must consider at least 20 vaguely defined Criminal Code "objectives"or "principles" of sentencing. Statutory objectives require judges to impose sentences that "denounce unlawful conduct" or "assist in rehabilitating" offenders. An example of a principle is that a sentence must be "proportionate to the gravity of the offence and the degree of responsibility of the offender."

   What do all those meaningless phrases stand for when trial judges search for an appropriate sentencing number?

   To trial judges, they mean what their provincial appellate court says they mean. Using the above example of a statutory 10 year maximum sentence, most trial judges will first consider an appropriate sentence as half way between defence counsel’s suggested minimum of 1 year and the prosecutor’s suggested maximum of 6 years. That works out to around 3.5 years.

   Then they may cut back the potential sentence to say 2.5 years. They do so by taking into account the tendency of appellate courts to reduce trial judges’ sentences far more often than they increase them. Sentencing on the low side avoids putting the parties to the expense of an appeal. It is very easy for appellate courts to change sentences by finding the trial judge failed to take into account the objective of offender "rehabilitation," or to not give sufficient consideration to less restrictive "sanctions," etc.

   At 2 years less a day, the possibility of a conditional sentence comes into play. If trial judges determine that the evidence and the information indicate the offender is unreliable, they will stay away from conditional sentences. They do so in the belief that the province does not have enough probation officers to properly supervise offenders making offenders a potential threat to the community. When they enacted the conditional sentencing provisions, it is doubtful that federal Parliamentarians had any knowledge of the number of provincial probation officers necessary to supervise offenders while they served their time in the community.

   One can see that criminal sentences are not governed by the pious objectives and principles of sentencing. They are governed by appellate court decisions. When fixing a sentence, trial judges and appellate courts first find an appropriate number and then cherry pick the relevant objectives and principles from the Criminal Code that tend to support the number. There is nothing wrong with that exercise since no figure comes easily to mind by just reading the Criminal Code’s objectives and principles of sentencing.

Bottom line:

1. Canada’s sentencing system is bankrupt. It starts with Parliament’s naive belief that offenders will always tell the truth about themselves when they give information to the court at a sentencing hearing.

2. Publishing lofty objectives and principles of sentencing in the Criminal Code does not guarantee public safety.

3. Canada needs to switch from this unworkable system and adopt the American style Sentencing Guideline System. It transfers the authority to set minimum and maximum ranges of sentences for each crime to a Sentencing Commission supervised by legislators: see my posting of 3 January 2009.

4. No system is perfect. Nonetheless, the Sentencing Guideline System is far more certain and has far more public support in America than Canada’s discretionary system has here.

19 September 2009 

Sentencing – A Canadian Sentencing Guideline System

Under our Constitution … offenders will know what their 
punishments will be if they offend against the criminal laws of the land.

       Sir John A. Macdonald
       Confederation Debates
       1865

1. Introduction

   Public opinion polls in recent years reveal a low level of confidence in Canada’s criminal justice system compared to other governmental institutions.
   Lenient sentencing by judges seems to dominate this discontent. Additional complaints include the legislative lowering of sentences for time served pending trial, early release by reason of earned remission and mandatory parole.
   “Truth in sentencing” is one alternative. It is a sentencing system that requires all offenders to serve out their full judicial sentences without any deductions. Probably, the majority of Canadians would find it too severe and unlikely to change criminal activity to any degree.
    This posting compares Canada’s sentencing system with American federal and state systems. It recommends a sentencing model that takes away most judicial discretion using a Sentencing Guideline System: http://www.ussc.gov/ANNRPT/2007/chap1_07.pdf

SENTENCING - PROBATION – CONDITIONAL SENTENCES

1. Introduction

  In certain circumstances, Canada’s Criminal Code gives judges the right to impose either a sentence of probation or a conditional sentence that is almost the same as probation. Both allow defendants to remain free in the community during the term of their sentences subject to various restrictions called conditions.
  According to the National Parole Board, in 2003-2004, judges imposed a sentence of probation in 46% of all guilty cases: http://www.npb-cnlc.gc.ca/reports/pdf/pmr_2006_2007/section1-eng.htm#government_priorities
  Like the previous posting on bail pending trial, the effectiveness of probation and conditional sentences suffer from the perceived inability of provincial Probation Officers to monitor the many conditions accompanying these sentences due to a lack of resources.

CRIMINAL LAW–SENTENCING-SECOND DEGREE MURDER

1. Introduction

   When juries convict defendants of second degree murder, section 745.2 of the Criminal Code requires trial judges to seek from the jurors a recommendation as to the length of time the defendants must be imprisoned before they are eligible for parole. It can be no longer than 25 years and no shorter than 10 years. When requesting this information, the law requires trial judges to read the exact words set out in the Code.
   Unfortunately, these words are confusing in one respect and completely wrong in another.

BRITISH COLUMBIA’S SENTENCING SYSTEM UNDER ATTACK

1. Introduction

   On 6 October 2004, the Vancouver Sun published a full page article of mine on how Canada’s sentencing system works in British Columbia and how it can be fixed. It was written in response to media criticism involving lenient sentences given by B.C. trial judges. The article tried to explain that B.C. trial judges are bound by the rules of legal precedent set by the British Columbia Court of Appeal in their sentencing decisions.
   Recommendations in the 2004 piece for changes in the criminal sentencing system to meet public expectations mimic what is in my 2006 book “Exploding the Myths …” and in earlier postings on this website.
   On 19 May 2008, Jason Kirby, Nancy Macdonald along with Ken MacQueen of MacLean’s Magazine published a front page story titled: “How B.C. became a world crime super-power … B.C.’s big multi-billion dollar growth industry is crime. And business is booming.”
   Finally, on 26 June 2008, Brian Hutchinson wrote an article in the National Post describing the consequences of lenient sentences given to chronic offenders. Its title is:“Vancouver police call for tougher sentencing for city’s chronic offenders – one criminal, 148 convictions.”

SENTENCING – DRUG REHABILITATION PROGRAMS

1. Introduction

   A 2006 study done by the National Center for State Courts discusses the American sentencing systems and the public’s reaction to judicial sentences.* Generally, the American public wants more severe sentences for violent crimes and lighter sentences for minor offences using penalties such as drug rehabilitation programs. Many Canadians seem to have similar views.
   Relying on online resources, this posting discusses the effectiveness of prison and court annexed drug rehabilitation programs. It contends they achieve very little.* http://www.ncsconline.org/D_Research/Documents/NCSC_SentencingSurvey_ExecSummary_Final060720.pdf

SENTENCING – CREDIT FOR TIME SERVED

1. Introduction

  Over the past 40 or so years Canada's federal legislators developed a policy of leniency in sentencing by using the Criminal Code and the Corrections and Conditional Release Act. Conditional sentences, early parole and credit for time spent in custody before sentencing are just three examples.
This posting explores the questionable policy of crediting offenders' sentences with time spent in custody before their sentencing.

CRIMINAL LAW - PAROLE ELIGIBILITY - ROBERT PICKTON

1. Introduction

This posting deals with the problem of calculating how much time persons convicted of second degree murder must spend in jail following their convictions. The recent notorious case of Robert Pickton is an example.
In 2002, police arrested Robert Pickton charging him with the first degree murders of 26 women. The offences allegedly occurred sometime between 1997 and 2001 at his pig farm in Coquitlam, B.C., a suburb of Vancouver. Following a 7 month Preliminary Hearing before a Provincial Court judge he was committed to stand trial before a superior court judge and jury in the B.C. Supreme Court. The trial judge then spent 23 months hearing pre-trial motions and made more than 36 rulings. One of these was to first try six of the 26 counts and sever off the remaining 20 for a later trial.
After a ten month trial, on Sunday 10 December 2007, the 12 person jury convicted Robert Pickton on the six count lesser charges of second degree murder. Mr. Pickton is 58 years old.