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The Hon. Grant  Mitchell, B.A., M.A., C.F.A. Senator Grant Mitchell has had careers in the public service, business and politics in Alberta. He was appointed by former Prime Minister Paul Martin in March, 2005.

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Eleventh Report of Legal and Constitutional Affairs Committee

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Statement made on 20 October 2009 by Senator Joan Fraser

Hon. Joan Fraser:

Honourable senators, rule 99 requires that when a committee has amended a bill, the person who presents the committee report shall explain the amendments to the Senate. As chair of the Standing Senate Committee on Legal and Constitutional Affairs, I presented the committee's report on Bill C-25.

The long title of Bill C-25, I would draw to your attention, is: An Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody), and that is indeed pertinent to the discussion of the amendments.

Let me take the amendments presented in our eleventh report in order. I should probably note that all of these amendments were adopted on division.

The first amendment is to clause 2 of the bill, and it has to do with a reporting requirement that the bill as referred to committee sets out. In order to explain this, I have to tell you a little bit about the way the Criminal Code treats provisions for the granting of bail. The general rule — there are always many complications written into the Criminal Code — but the general rule is that there are three grounds for the granting of bail.

Clause 2 of this bill reads that if the judge denied bail "primarily because of a previous conviction of the accused," the judge had to put that reason on the record in writing. The reason for requiring this report to be made was because it would affect the available sentence in a further section of the bill.

The committee was reminded by at least one learned witness that a previous conviction of the accused is not now set out in the Criminal Code as one of the grounds for withholding bail. Previous convictions and criminal records are taken into account by judges, but they are not specifically listed.

The committee added an amendment to make it clear that Bill C-25 is not amending indirectly the Criminal Code's provisions for the granting of bail. That is why the amendment says that if the judge "orders that the accused be detained in custody on the basis of one or more grounds set out in subsection (10), it is to be written." Subsection 10 is the general conditions for the granting of bail that I was talking about, primarily because of evidence of a previous conviction. That may sound a little complicated, but what it says is, if the judge is doing what judges have always done but is making a written report as required by this bill, we are not, in fact, changing the rules upon which bail is granted; we are saying only that they have to write it down.

That amendment is designed to achieve clarity, always appropriate in the criminal justice system.

I come now to the amendments to this bill that have received the most public attention, the amendments that the committee made to clause 3. As many senators will recall, the fundamental purpose of this bill is to set limits on the discretion a judge can exercise when the judge is sentencing someone who has been convicted, and the judge is giving credit for the amount of time that person has already served in pre-sentencing custody, if that person has served time in pre-sentencing custody.

At the moment, there is no limit in law to the discretion a judge may exercise. Courts across the land, up to the Supreme Court of Canada, have ruled that it is appropriate for a judge to give credit of more than one day for each day served in pre-sentencing custody when the sentence is handed down.

This bill, as sent to the committee, said that as a general rule the maximum credit would be one day for one day and that in special circumstances, the maximum would be one and one half days.

Your committee heard a great deal of evidence from a wide range of witnesses to the effect that, A, this provision would not be in conformity with what courts have been ruling, including the Supreme Court of Canada; and, B, it could end up creating unfairness in our judicial system. There are a number of reasons for that conclusion, some of them complicated, but let me give honourable senators a couple.

The first reason is that when people who have been convicted and are serving time in prison seek parole, the parole system does not take into account the amount of time they may have served in remand; in pre-sentencing custody. We heard statistical evidence to this effect. Two people who committed the identical offence, in identical circumstances, and to whom the judge wished to give identical total custody, may not receive identical treatment if credit for time served is a straight one-for-one credit because the parole system may not take into account that previous time spent in custody behind bars by the one who did not receive bail compared to the one who did receive bail.

I do not know if I am making this point clear, but it is an important one. A fundamental fact is that a rigid, mathematical formula, while designed to achieve fairness, may create unfairness, in part because of the way the parole system works.

The second reason we heard in testimony was that conditions in remand vary widely across the country. In some places, the conditions in remand — in pre-sentencing custody — have improved greatly in recent years; in other places, they have not. A number of the witnesses who appeared before us said that an arbitrary formula designed to achieve fairness might again create unfairness because of the variation in conditions across this broad land for people who are serving in remand. That is why a significant number of the witnesses who appeared before the committee suggested that it was appropriate to retain discretion for judges.

Your committee did not believe that it was appropriate to leave the current system of total discretion in the hands of the judges. After all, not only the House of Commons but also this chamber, at second reading, had approved the principle of the bill, which, as I said at the outset, limits credit for time spent in pre-sentencing custody. However, your committee concluded that it was appropriate to increase slightly the amount of discretion available to judges so that the ultimate object of fairness might be achieved.

For these reasons, your committee amended this bill to say that the general credit should be one and one half days off one's sentence for each day served in pre-sentencing custody, with a maximum of two days where special circumstances exist. I remind honourable senators that of course, where circumstances warrant, a judge remains free to give less credit than the general rule, if that seems the appropriate way to go.

A third amendment, which again may seem a little technical, goes to a principle. Subclause 3.3 and subclause 3.4 of clause 3 deal with reporting requirements of one sort or another. Subsection 3.2 says:

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

In other words, the court shall explain why the sentence being handed down is what it is.

Subclause 3.3 is substantially more bureaucratic in nature. It says:

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.

Statistics Canada, among other people, likes that provision because it will provide a whole lot of information that the department cannot now gather. However, the bill goes on to say:

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

Your committee agreed that the validity of a sentence should not be affected if some element of all the paperwork that will be so lovely for Statistics Canada is inadvertently filled out incorrectly. However, your committee did not believe that it was appropriate to say a sentence is valid even if the court has not given a full explanation of why it has been granted. For this reason the committee removed the safety net, if you will, that would affect sentences handed down without reasons being given for any credit granted. Your committee said the court must explain the sentences, but if the court does not have its Statistics Canada-type paperwork perfect, that situation will not affect the validity of the sentence.

I hope that explanation is clear to honourable senators. I have tried to summarize technical and complex issues in as short a period as possible, but I look forward to the debate on this report.

Please click here to read the full text of this debate


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