The End of 2-for-1 Credit & the Fallacy of ‘Getting Tough’

By: Will McNair · March 2, 2010 · Filed Under Criminal Law · 3 Comments 

The March 8th 2010 issue of Maclean’s, “Canada’s magazine”, has this to say about the Conservative government’s elimination of two-for-one credit for pre-sentence custody:

Do the time

“It seems like a no-brainer: convicted criminals shouldn’t get a break for prison time served prior to court dates. And yet, it’s taken four years for the federal government to enact legislation ending two-for-one jail credits. As the old saying goes: you do the crime, you do the time—the whole time, not just half. Convicted criminals have been gifted shorter sentences by the justice system for too long. It’s time to get tough.”

Fortunately, old sayings do not figure among our sentencing principles. The objectives of our sentencing regime are enumerated at section 718 of the Criminal Code, and they are as follows:

(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

Parliament enacted those objectives to guide the courts in fashioning sentences that are just and appropriate to the circumstances of each case. By looking beyond the obtuse imperative to “get tough”, a judge can craft a sentence that neither threatens the safety and security of the public nor condemns the offender to a lifelong cycle of recidivism.

Equitable and progressive though they might be, however, Parliament’s sentencing principles do not take into account the backlog that plagues the criminal justice system. Too often, prisoners languish in dangerous, dirty, overcrowded jails for weeks and months before their cases can be heard.

It was this dubious “gift” that the two-for-one sentencing regime was meant to address: the policy acknowledged that outrageous pre-sentence delays, coupled with deplorable conditions in some Canadian prisons, resulted in suffering that our sentencing provisions did not countenance. Moreover, this hardship is utterly preventable, but for a lack of public or political will. (As ever, “get tough” is a politically unassailable stance.)

To be sure, giving double credit was a bandage on the problem, not a curative. Jail conditions remain execrable, and the Attorney General’s “Justice on Target” initiative has only just begun to rein in administrative delay. But instead of curing these ills, the government has decided to rip off the bandage.

In that respect, Maclean’s was right: it’s a no-brainer.

Comments

3 Responses to “The End of 2-for-1 Credit & the Fallacy of ‘Getting Tough’”

  1. Lawrence Gridin on March 2nd, 2010 8:42 pm

    Cheers Will. I’d like to add a few things to your excellent post.

    The double credit was not just about recognition of poor conditions in jails. Another important reason for the credit is the (effectively) longer period of parole ineligibility for people who spent time in pre-trial custody.

    Have a look at this article (especially the section on 2-for-1 credit) which I found especially helpful: National Post, Crime bills to be scrutinized, Liberals warn

    And if you’d prefer to read case law, you can have a look at R. v. Rezaie (1996), 112 C.C.C. (3d) 97 (Ont. C.A.), which says:

    Incarceration at any stage of the criminal process is a denial of an accused’s liberty. Moreover, in two respects, pre-trial custody is even more onerous than post-sentencing custody. First, other than for a sentence of life imprisonment, legislative provisions for parole eligibility and statutory release do not take into account time spent in custody before trial (or before sentencing). Second, local detention centres ordinarily do not provide educational, retraining or rehabilitation programs to an accused in custody waiting trial. For these reasons, pre-trial custody is commonly referred to as “dead time”, and trial judges, in deciding on an appropriate sentence, frequently give credit for double the time an accused has served.

    A unanimous Supreme Court of Canada adds, in R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para 45:

    In the past, many judges have given more or less two months credit for each month spent in pre-sentencing detention. This is entirely appropriate even though a different ratio could also be applied, for example if the accused has been detained prior to trial in an institution where he or she has had full access to educational, vocational and rehabilitation programs. The often applied ratio of 2:1 reflects not only the harshness of the detention due to the absence of programs, which may be more severe in some cases than in others, but reflects also the fact that none of the remission mechanisms contained in the Corrections and Conditional Release Act apply to that period of detention. “Dead time” is “real” time. The credit cannot and need not be determined by a rigid formula and is thus best left to the sentencing judge, who remains in the best position to carefully weigh all the factors which go toward the determination of the appropriate sentence, including the decision to credit the offender for any time spent in pre-sentencing custody.

  2. KC on March 3rd, 2010 7:20 pm

    Without opining one way or another, Lawrence wouldn’t the obvious answer to be to extend parole eligibility and stat release to include time in pre-trial detention?

  3. Lawrence Gridin on March 3rd, 2010 10:24 pm

    KC: I think that would address one of the two concerns, yes.