Blogosaurus Lex

A recent court decision and the proclamation of a new federal law offer an  interesting study in contrasts.   On February 22, 2010 a statute that amends the Criminal Code came into force.  It is called the Truth in Sentencing Act, a label that seems more ideological than merely descriptive.

The Act changes the way that judges can deal with prisoners who have spent time in remand centres prior to their trials being held.   Previously, judges had the discretion to credit days that accused persons spent in remand on a two-for-one and sometimes three-for- one basis to their  after-conviction jail sentences.  Now:

• a judge may allow a maximum credit of one day for each day spent in pre-sentence custody;
• if the circumstances justify it, a judge may allow a maximum credit of one and one-half days for each day spent in pre-sentencing custody;
• if the person’s criminal record or breach of conditions on bail was the reason for the pre-sentencing custody, a judge may not allow more than one day’s credit for each day spent in pre-sentencing custody;
• At a bail hearing,  if the judge orders that an accused who has a criminal record be placed in custody, the judge must then state his or her reason on the record, so that the judge who later sentences the person knows the reason for the pre-sentence order, preventing that judge from allowing more than one day’s credit for one day in pre-sentencing custody; and
• A judge who decides to allow credit for pre-sentencing custody must give reasons for the decisions and state those reasons on the record, including the amount of time credited, the sentence actually imposed, and the term of imprisonment that would have been imposed if credit had not been given for pre-sentencing custody.

The new rules for pre-sentence custody apply only to persons charged after the law comes into force.

The new law comes close on the heels of a decision by the Alberta Court of Queen’s Bench Justice Richard Marceau, which deals with the horrible conditions in the Edmonton Remand Centre, and how these conditions amounted to breaches of the prisoners’ rights under the Charter of Rights.

The case dealt with a number of inmates at the Edmonton Remand Centre, who asked for declarations that their Charter rights to be free of cruel and unusual punishment; arbitrary and unreasonable search and seizure; racist and discriminatory treatment; and unfair disciplinary hearings and punishments had been violated.  The inmates had been held in Remand for very long periods while awaiting trial on a massive drug-trafficking case. Justice Marceau agreed that their Charter rights had been breached in several ways.  He found that:

• inmates were locked up two to a cell for 18 -21 hours a day with limited access to recreation or other activities for months, and for some, for years at a time.  This was cruel and unusual punishment under s. 12 of the Charter and the breach shocked the conscience and was grossly disproportionate treatment;
• instances of supplying inmates with communal underwear that was sometimes not properly laundered was also a breach of s. 12 and did not meet public standards of decency;
• the s. 7 Charter guarantee of liberty was breached because the inmates were not told the basis for their security classifications or given an opportunity to appeal them; and
• the use of racist epitaphs and jokes against some inmates was a breach of their s. 15 Charter guarantee of equality under the law.

The Alberta government stated that many of the problems that led to this decision have been addressed, and that a new Remand Centre with a much larger holding capacity is due to open in 2012.

How do we reconcile the new law with the recent court decision?  One of the rationales given for the new law is that accused persons through their lawyers deliberately stall trials so that they can take advantage of the judges’ discretion.  But no credible evidence exists that this takes place, criminal defence lawyers vehemently deny it, and given the dreadful conditions in many remand centres across the country, is it really likely that this is commonplace?   The Edmonton Journal, in an editorial in its February 26, 2010 edition stated:

“Over the past 20 years, more accused persons in Canada have been spending more time in jail awaiting trial. What’s more, the conditions under which they’ve been kept have, on the whole, worsened. By passing Bill C-25, the government has assumed a responsibility to ensure these conditions improve. If time served before trial is to be treated as legally the same as time served after it, the conditions under which the two stretches are lived cannot differ as drastically as they do today.”

If the government does not take steps to improve the conditions in the nation’s remand centres, then many more Charter challenges to the new law are likely to ensue.