In ALG Blog

In The Shawshank Redemption, Warden Norton threatens Andy Dufresne by telling him he will take him out of his single-person cell, put him in with the prison’s general population and make him do “the hardest time there is”.

In Ontario, it is no secret that the “hardest time there is” is the time accused persons serve before their trial.

While still presumed innocent, defendants are stuck for months in pre-trial remand facilities.   Many are ancient jails built for smaller populations.  They have no programs or privileges, leading to frustration and tension among the prisoners.  As trial delays – a product of underfunding – have grown in Ontario, the government has done nothing to improve detention facilities for those held there.

Our courts used to make up for this by crediting time spent in custody before trial.  Judges would often credit individuals with two days for every day spent in pre-trial custody.  This changed when the Conservative government passed the Truth in Sentencing Act, which limited credit to one day for every day in pre-trial custody.  The Act provided an exception to this rigid rule: when “circumstances justify it”, judges could credit to 1.5 days for every day in pre-trial custody.  It seems the government saw no place in sentencing for the truth about the nature of the hard time spent custody.

This week, our Court of Appeal brought a bit of truth back to the sentencing process.  The Court released its decision in R. v. Summers and ruled that in many cases, offenders should get the enhanced 1.5:1 credit for pre-trial custody.  The Court took note of the fact that pre-trial custody does not count towards parole.  It also does not count towards earned remission – credit offenders get in custody for attending programs and demonstrating good behaviour, which can earn them earlier parole release dates.  The Criminal Lawyers’ Association intervened in the appeal and gave a smart example where two offenders who are get the same sentence for the same offence end up serving a very different amount of time.  The person who gets bail serves less time in jail.  The person who can’t get bail and gets 1:1 credit for his pre-trial custody ends up serving more time.

The Court of Appeal rightly disparaged disparity in sentencing.  People who do similar things in similar circumstances should get similar sentences.  On a broader view, the decision shows the dangers in messing with the sentencing process.  Mandatory minimums and the Truth in Sentencing Act try to take discretion out of a judge’s hands.  Judges are naturally resistant to being told they have no role in sentencing.  This is particularly true when punishment is being imposed not in a careful and deliberate way but instead by using medieval facilities and business decisions to underfund the system.

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