The Debate Over 2-for-1 Credit

Last Friday, a bill was tabled in Parliament aiming to limit judicial discretion in granting two-for-one credit for pre-sentence custody, and both the legal and lay communities have been abuzz about this move. (See here for last Friday’s post on TheCourt.ca.)

The Legislation

The bill is Bill C-25, titled An Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody), or, for short, the Truth in Sentencing Act, SC 2009, c 29. It is comprised of six clauses, and proposes to replace subsection 719(3) of the Criminal Code which currently reads:

719. (3) 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 by the person as a result of the offence.

with the following:

3. Subsection 719(3) of the Act is replaced by the following:

(3) 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 by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.

(3.3) The court shall cause to be stated in the record and on the warrant of committal the offence, the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed.

(3.4) Failure to comply with subsection (3.2) or (3.3) does not affect the validity of the sentence imposed by the court.

Clause 5 states that subsections 719(3) to (3.4) would apply only to persons charged after the day on which those subsections come into force.

The Supreme Court of Canada

The Supreme Court of Canada (“SCC”) commented briefly on the appropriateness of calculating a certain amount of credit for pre-sentencing custody in R v Wust, [2000] 1 SCR 455 [Wust]. Justice Arbour, writing for a unanimous 7-judge panel, wrote:

[44] I see no advantage in detracting from the well-entrenched judicial discretion provided in s. 719(3) by endorsing a mechanical formula for crediting pre-sentencing custody. As we have re-affirmed in this decision, the goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence. I adopt the reasoning of Laskin J.A., supra, in Rezaie, supra, at p. 105, where he noted that:

… provincial appellate courts have rejected a mathematical formula for crediting pre-trial custody, instead insisting that the amount of time to be credited should be determined on a case by case basis… . Although a fixed multiplier may be unwise, absent justification, sentencing judges should give some credit for time spent in custody before trial (and before sentencing). [Citations omitted.]

[45] In the past, many judges have given more or less two months credit for each month spent in pre-sentencing detention. This is entirely appropriate even though a different ratio could also be applied, for example if the accused has been detained prior to trial in an institution where he or she has had full access to educational, vocational and rehabilitation programs. The often applied ratio of 2:1 reflects not only the harshness of the detention due to the absence of programs, which may be more severe in some cases than in others, but reflects also the fact that none of the remission mechanisms contained in the Corrections and Conditional Release Act apply to that period of detention. “Dead time” is “real” time. The credit cannot and need not be determined by a rigid formula and is thus best left to the sentencing judge, who remains in the best position to carefully weigh all the factors which go toward the determination of the appropriate sentence, including the decision to credit the offender for any time spent in pre-sentencing custody.

The trial judge in Wust had granted credit of one year for Wust’s pre-sentence custody of seven-and-a-half months, and the SCC found that the sentence was appropriate.

Seeing Is Believing

The community’s frustration at seeing convicted individuals get two-for-one credit for pre-sentence custody is quite understandable. Indeed, the day before the government announced its plan to introduce Bill C-25, I had a similar reaction when I read a newspaper article about a man who, having pleaded guilty to manslaughter of a baby less than a year old, was sentenced to six-and-a-half years in prison but would be released in less than six months because he had already spent three years in pre-sentence custody. That said, the debate over 2-for-1 credit is characterized by cogent policy concerns on either side.

As a law student, I have limited experience in criminal law practice. However, in the course of my summer employment and my participation in the criminal intensive program at school. As part of the latter experience, I had the opportunity to visit Warkworth, a medium-security federal penitentiary as well as the Don Jail. The conditions in the Don Jail in particular, were truly depraved; it is hard to believe that some people have to live in those conditions for months or even years, waiting for their trials.

Because of the gruesome conditions in prison, many accused persons choose to plead guilty so as to avoid remaining in jail. I personally witnessed a woman in bail court who, upon being informed that her lawyer was not present and that she would have to be remanded, began crying and said she will plead guilty so that she would not have to go back to the detention centre.

It has become an increasingly common refrain to say that jail is not meant to be a pleasant place: “Can’t do the time, don’t do the crime, etc. etc.” However, the majority of people at detention centres are accused person waiting to stand trial. It is a fundamental principle of our criminal justice system, now entrenched in section 11(d) of the Charter, that any person charged with an offence is to be presumed to be innocent until proven guilty according to law.

Perhaps the problem with enhanced credit for pre-sentence custody is that the two-to-one ratio has become the “rigid formula” against which Justice Arbour had warned. It would appear that sentencing judges now tend to apply this ratio automatically. In fact, a failure to do so usually leads to a sentence appeal. That being said, the Truth in Sentencing Act represents a highly inappropriate legislative response to a fundamentally judicial problem.