Another Step Toward Eliminating Judicial Discretion in Sentencing

On Wednesday, news broke that the Federal Government is planning to introduce legislation that will preclude judges from giving offenders enhanced credit for the time they spend in pre-trial custody. This move represents yet another unfortunate example of the Conservatives’ continued efforts to unduly fetter the discretion of Canadian judges when imposing sentences.

Enhanced credit for pretrial custody is given on a discretionary basis and for compelling reasons.

First, the comparatively harsh conditions found in our pre-trial detention facilities. Pre-trial detention centres across the country are often overcrowded, with two and sometimes even three inmates confined to a small cell, sharing sleeping quarters and the same toilet. Lock-downs for substantial periods in the day, 18 to 24 hours depending on the facility, are common. In addition, unlike prisons, pretrial detention facilities offer inmates few, if any, activities or programs and minimal opportunities for physical exercise. In short, these are very unpleasant places to spend time.

The second, and even more compelling rationale, is that unlike an actual sentence, the period spent in pretrial custody is not open to remission for good behavior and the offender is not eligible for parole. For example, an offender sentenced to more than two years is eligible for parole after 1/3rd of their sentence and must be paroled, barring exceptional circumstances, on the completion of 2/3rds of their sentence. In contrast, an offender who spends two years in pretrial custody awaiting trial spends two years in custody with no chance for remission. Giving enhanced credit for pretrial custody is meant to provide some redress for the fundamental unfairness that would otherwise result, unfairness that the Conservatives now wish to legally mandate.

It is true that some offenders do attempt to take advantage of the enhanced credit given for time spent in pretrial custody, deliberately racking up so-called “dead time” in order to reduce their ultimate sentence. Where a judge concludes that an offender has done this she has the authority to refuse to grant enhanced credit (see R v Thornton, 2007 ONCA 366). In other words, it is less than clear that this is a problem in need of a legislative solution.

The Conservatives remain committed toward efforts to substantially reduce the discretion of Canadian judges when imposing sentence. This is prefaced on a perception, which has much public sympathy but no empirical support, that Canadian judges are too lenient and that criminals are being treated with kid gloves.

It is interesting that this was the sentiment that swept over the United States a generation ago, leading to a wave of harsh mandatory minimum sentences. It is now relatively well accepted that these efforts have not succeeded in deterring crime. What really influences deterrence is certainty of apprehension rather than the severity of the potential punishment. It is because of this that the Americans have finally begun to rethink mandatory minimums. For example, just this week, the New York legislature reached consensus on a plan to repeal many of that state’s 1970’s era-drug laws that imposed mandatory minimum sentences (see Jeremy W. Peters, “Albany Reaches Deal to Repeal ’70s-Era Drug Laws” (26 March 2009), New York Times, available online.)

If the American experience over the last forty years teaches us anything, it is that eliminating judicial discretion from sentencing doesn’t advance the fight on crime. Rather, it simply serves to fill more and more jails with people who do not necessarily pose a threat to public safety. It is unfortunate that our Government seems committed to pursuing criminal justice policies that have already been tried and failed in the United States.

It is hard not to be cynical about the true motivation behind such efforts. This most recent announcement seems like just another sad example of politicians exploiting the criminal justice system to score political points with the electorate, on an issue that few would understand without a full explanation, all at the expense of an easy target, convicted criminals.

To be sure, there are a great many areas of the criminal justice system in need of legislative reform to redress real problems. The elimination of enhanced credit in sentencing for time spent in pre-trial custody isn’t however one of them.