Liberal-Dominated Senate Amends Crime Bill
Senate Refuses to Abolish 2 for 1 Sentencing Rule
Oct 12, 2009
The bill, known as the Truth in Sentencing Act, was introduced in the House of Commons on March 27, 2009. On June 8 the proposed legislation was passed and sent to the Senate.
Under the Criminal Code of Canada a sentence begins at the time it is pronounced. However judges are allowed to consider the time that an accused has spent in custody between the time of arrest and sentence. The usual practice is for judges to give prisoners two days credit for every day spent in pre-trial custody. Bill C-25, which easily passed in the House of Commons, would limit the power of judges to consider what is commonly referred to as “dead time”; only the actual number of days spent in custody could be counted in calculating the appropriate sentence.
Pre-trial Custody Not Counted in Parole Eligibility
One reason that judges began granting the 2 for 1 credit was to make up for the fact that time spent in pre-trial custody cannot be considered in calculating parole eligibility. Most inmates who are serving a federal sentence (a sentence of two years or more) are eligible to apply for parole after serving one third of their sentence. Gaining parole after only serving a third of the sentence is difficult but most offenders are eligible for statutory release after serving two thirds of their sentences. The two thirds mark of a sentence therefore becomes the effective release date for most federal prisoners.
Take for example a criminal accused who anticipates a penitentiary sentence of six years. If he or she spends no time in pre-trial custody and receives a six year sentence, they will be eligible for statutory release after spending four years in custody. However if they end up spending two years in custody prior to sentencing and the judge counts this time as four years, they will be sentenced to two years on the day that the sentence is imposed. They will be eligible for statutory release after serving 16 months of the two year sentence. The total time spent locked up will be three years and four months before their statutory release date compared to four years if there is no pre-trial detention. To take a more extreme example, if an accused spent six years detained before sentence and released on the date that sentence is imposed he or she would receive no benefit of early release.
Local Jails Not Designed for Long Time Prisoners
There is another reason why judges began to give double credit for time served before sentence. Those who are detained before sentence are incarcerated in local jails. These institutions, like Toronto’s Don Jail, were never meant to hold long-term offenders. They were designed to house accused who were detained briefly before trial or those who are serving short sentences of three months or less. Criminal court facilities have not kept up with the population growth and this has led to longer waiting times before trials. As well, since the introduction of the Charter of Rights, trials have become more complex and time consuming. Many new laws, such as the bill to legalize random breathalyzer tests for drivers are subject to new Charter challenges. This often leads to trials being adjourned until the constitutionality of the law is settled. In addition to Charter arguments, new laws such as Canada’s anti-gang legislation have made trials longer and more complex resulting in longer delays between arrest and trial.
Judges also award two days credit for each day one served because the pre-trial facilities do not have any programs and are more confining than some federal institutions. While some dangerous penitentiary inmates spend 23 hours a day locked in a small cell in a maximum security institution others end up in medium or minimum institutions where they can cook their own meals and wander around during the day between head counts. Time is easier to do in these institutions than spending all day doing very little in local jails.
Jail Overcrowding
One consequence of longer waiting times to trial is that the jails are overcrowded with three or four inmates having to share a cell constructed to house two prisoners. When jail conditions are found to be seriously overcrowded by the court, inmates are sometimes credited with three or more days for each one served. The problem is exacerbated because many seasoned criminals, those described by some judges as doing a life sentence on the installment plan purposely delay their day in court so that, with the 2 or more for1 rule, they can be released sooner.
The Canadian Senate that is usually criticized for doing nothing is now being criticized for amending Bill C-25 to allow judges discretion in granting criminal accused 1.5 days credit for each day of custody prior to being sentenced. Supporters of the bill say that granting any such extra credit amounts to being soft on crime.
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