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Serge Joyal

The Hon. Serge  Joyal, P.C., O.C., O.Q., B.A., LL.L., D.E.S., LL.M. Appointed to the Senate by the Rt. Honourable Jean Chrétien, Senator Serge Joyal represents the province of Quebec and the Senatorial Division of Kennebec. He has served in the Senate of Canada since November 26, 1997.

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Debate - Bill C-25, An Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody), with amendments

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Statement made on 20 October 2009 by Senator Mobina Jaffer

Hon. Mobina S. B. Jaffer:

Honourable senators, I rise today to speak on Bill C-25, and, more particularly, on judicial discretion in sentencing. I was not a member of the committee but I have been following the committee's working on the bill.

Bill C-25 seeks to limit the ability of the courts to adjust sentences to account for the differences between time spent in pre-trial custody and time served following conviction. There seems to be a considerable amount of misunderstanding as to why and how courts have felt it necessary to differentiate as they do, usually by crediting time spent on remand on a two-for-one basis.

To begin with, it is important to remember that persons on remand have not been convicted. Honourable senators, these people are entitled to the presumption of innocence. They are held in custody either because of the nature of the charges against them or because circumstances in their backgrounds or prior history suggest that they should be detained until their cases can be heard or, sadly, they do not have resources to make bail.

The decisions to keep them in custody are made by the same judges who later adjust their sentences, if and when they are convicted. That is a significant "if." Persons who have been held on remand and are eventually acquitted experience the hardest form of incarceration of all and with no recourse or compensation. No one ever seems to mention the unfairness of that particular situation. The widely reported but anecdotal and greatly exaggerated phenomenon of criminals walking out the prison door, having served only half their sentences on remand, should be balanced by a consideration of the numbers of accused persons who walk out the prison door, having served "a sentence for which they were never convicted." They have been acquitted of the charges after having spent time in remand. The usual credit of two days for one day spent in remand is widely and erroneously criticized as a failure to hold criminals accountable, or as an indication that the judiciary exercises its discretion in a way that is soft on crime.

Honourable senators, these are not the reasons the credit is given. It is given because it is fair. For example, imagine a person convicted of a serious crime for which that person is sentenced to 15 years. Under the present parole system, which I understand will not change, this person is eligible for parole after serving one third of the sentence, or 5 years. Generally speaking, the person is entitled to mandatory supervised release at two thirds of the sentence, or 10 years.

Honourable senators, assume that the same person has served 2 years in pre-trial detention. That person then stands trial and is convicted of the same offence and is given a 15-year sentence. Under Bill C-25, the judge is precluded legislatively from giving additional credit for time spent in remand. This person will be given a credit of only two years for time served plus an additional 13 years in jail. That person will be eligible for parole after one third of the sentence of 13 years, or 4 years and 4 months. Similarly, that person will be eligible for mandatory release under supervision at two thirds of the sentence, or 8 years and 8 months. We must then include the two years of dead time while on remand. Thus, the person who was granted bail will be eligible after 5 and 10 years respectively of a 15-year sentence while the person who was not granted bail will serve 6 years and 4 months, and 10 years and 8 months respectively. Unless credit is given for pre-trial custody, a similar sentence for a similar crime will result in significant and clearly unfair disparities.

All honourable senators know the differences between conditions of incarceration on remand and conditions in jail after sentence. Remand conditions are universally acknowledged to be worse. Those who say that the supposedly widespread practice of maxing out the two-for-one credit by staying in remand and creating huge backlogs have not done the math as it applies to serious crimes.

I stand before honourable senators today to ask that this dilemma be considered carefully. How can it be suggested that remanded individuals would rather serve one half of their sentence than one third of their sentence? Those who suggest that confidence in the administration of justice is eroded by the practice misunderstand the reason for the two-for-one credit. In this chamber of sober second thought, honourable senators do not want to impose unfairness, which can result from Bill C-25.

Honourable senators, let us again look at the difference between remand and post-conviction sentence. Many who should know better suggest that people in remand are violent or repeat offenders, or the worst of the worst. Persons who are charged with serious offences might be denied bail because their past records suggest they might reoffend, that they might not attend trial or that it is in the public interest that they be held pending trial. It is sad to realize that many persons are remanded to custody because they are poor and simply cannot afford to make bail, which has nothing to do with the court application of rules laid down by Parliament in respect of such situations. It also has nothing to do with the presumption of innocence, to which I have already alluded. It is most important to remember this distinction: Pre-trial incarceration is regrettably necessary at times but it is never so obviously regrettable as when the accused is ultimately acquitted and released.

The remedy for this problem is to move matters to trial as quickly as possible. Some suggest the problem is that prisoners remanded to custody are happy to stay there. Even if that situation were true, and the math is against that theory, it would not be possible if sufficient resources were allocated to the courts to move cases forward more effectively. The rationale behind the two-for-one credit adjustment at sentencing would be less cogent if sufficient resources were allocated to improve conditions in remand. Bill C-25 proposes to remove a useful tool from judges that ensures fairness, and judges are obliged to ensure fair, not popular, results. Honourable senators, we too are obliged to provide fair, not popular, results. If conditions in remand do not improve and the courts cannot compensate for this unfairness, as they do now with the two-for-one credit, that situation might influence the number of people placed in remand. If pre-trial credit in remand is refused, then the courts might be obliged to adjust the length of sentences to achieve fair and just results. Without a commitment to fundamental and comprehensive change to improve the system through the provision of significantly more resources, the removal of one of the tools that allows judges to mitigate the effects of this lack of commitment is pointless and, ultimately, futile.

Bill C-25 implies, inappropriately, that the problem is the judiciary, which simply tries to achieve the fundamental principle of sentencing whereby similar matters are dealt with similarly, and result in similar outcomes. Parliament has placed this requirement explicitly in the Criminal Code. The two-for-one credit on remand is a judicial attempt to fulfill the mandate that the judiciary has been given. Honourable senators, if that discretion is removed, judges will have to find other ways to achieve fairness.

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