RSS FeedThe End of 2-for-1 Credit & the Fallacy of ‘Getting Tough’
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.
40% of Ontario Prosecutions Fail Before Trial
According to the National Post, the criminal justice system in Ontario is an absolute mess.
Ontario has the highest rate of failed prosecutions in Canada.
In this province, approximately 40% of criminal cases are withdrawn, stayed, or dismissed, often before the trial even begins.
To say nothing of the impact on the improperly accused person, the cost to the taxpayer – for wasteful police investigations, fruitless prosecutions, and court costs – is in the hundreds of millions of dollars.
Why?
There are a few reasons which the National Post and others have identified:
- Lack of collaboration between Crown Attorneys and the police. For the vast majority of crimes in Ontario, the police make the decision on whether to lay a charge. The police are not in the best position to decide whether the charge will stick in court; Crowns are. In other provinces, the Crown acts in a screening capacity to decide whether a charge should be laid in the first place.
- Lack of discretion on the part of Crown Attorneys. The Crown policy manual requires Crowns to drop charges where there is no reasonable prospect of conviction or where pursuing the matter would not be in the public interest. Thus, Crowns are required to act in a quasi-judicial role in deciding whether to press the prosecution. Unfortunately, junior Crowns are often unwilling to take initiative and withdraw a charge for fear of making a mistake and drawing the ire of their superiors.
- Lack of ownership of files. Most criminal files are shuffled around from one Crown attorney to the next until the time of trial. This creates a great deal of administrative waste, because all of the Crowns that will come into contact with the file will have to take time to fully familiarize themselves with it. Worse yet, when Crowns feel that they don’t have ownership of a file, they are unwilling to make tough decisions to withdraw a charge. Lacking a comprehensive knowledge of the case and the accused, it’s easier to just do nothing and allow the file to pass to someone else.
Having identified some of the causes, it’s clear that relatively simple changes could be made to the criminal justice system to significantly cut down on the number of failed prosecutions.
