OTTAWA - Defence lawyers have assaulted the Harper government’s “dead time” bill - using simple arithmetic to destroy the myth that lengthy custody before sentencing can benefit offenders.
They say the bill will instead penalize offenders who serve time in custody prior to sentencing.
The sentencing experts also argued at a Commons witness hearing on the controversial legislation that detainees rarely, if ever, attempt to delay their trials to build time that could shorten their eventual term. Instead, they plead for help getting out of derelict and violent remand centres that inmates have come to describe as “buckets.”
Some of the remand centres were described as “draconian.”
The lawyers told the Commons Justice and Human Rights committee the bill, proposing to end judicial discretion to give extra credit for time served before sentencing, will worsen prison conditions and eventually face a Charter challenge over cruel and unusual punishment as well as the right to a speedy trial.
“What I will say about this bill is that at its best it is misguided, at its worst it is cynical and cruel,” Toronto lawyer Paul Alexander told surprised MPs. “This is a piece of legislation designed to solve a problem which, to my knowledge, does not exist anywhere other than the popular imagination.”
Alexander, with four other defence lawyers and a criminology professor, was testifying at the only Commons committee witness hearing into Bill C-25, which would replace judicial discretion over credit for time served with strict limits.
The maximum credit for time served before sentencing would be one day for each day in remand custody before trial and sentencing, ending the widespread judicial practice of counting time served in pre-trial detention as double time.
A judge could apply a credit of one and one-half days only in exceptional circumstances. If a previous criminal record or breach of bail conditions made pre-sentence custody mandatory, the judge could not allow more than one day of credit for each day served.
Despite the effect the new law could have on Canada’s justice system, as well as the already overpopulated federal and provincial correctional institutions, the opposition parties went along with a government plan to rush the legislation through the Commons.
Justice Minister Rob Nicholson tabled the bill on March 27. It was in committee less than a month later with only three hearings scheduled, one for Nicholson’s testimony, another for the panel of lawyers, who appeared with the federal prison ombudsman and the commissioner of Correctional Service Canada, and the third, this week, to approve the bill.
Liberal MP Brian Murphy says the testimony from the defence lawyers could lead to amendments proposed by the opposition.
It could also face amendments in the Senate once the bill goes through the Commons.
While the lawyers focused on legal rights and the mechanics of the existing credit system, the Correctional Service officers predicted prison overcrowding and more violence due to lengthier sentences.
The lawyers appearing with Alexander were William Trudell, chairman of the Canadian Council of Criminal Defence Lawyers, Dyanoosh Youssefi and Matthew McGarvey, representing the Law Union of Ontario, and Andras Schreck, director of the Criminal Lawyers’ Association of Ontario.
Anthony Doob, professor of criminology at the University of Toronto, demonstrated that the legislation will actually result in offenders held in custody serving longer prison time than offenders who are released before trial - often because they have the financial ability to make bail.
That is because time served before sentencing is not included in calculations for parole - hence the term “dead time.”
If two offenders are each sentenced to 90 days in jail, the offender who spent 30 days in pre-trial detention with a one-to-one credit for days served would be sentenced to 60 days in prison and serve 40 days before normal parole. Total time in custody for that offender would be 70 days.
The offender who does not serve pre-sentence custody time would be sentenced to 90 days and serve only 60 days if also released at the typical two-thirds stage of time in prison.
Doob presented different scenarios to show the same arithmetical rules apply for longer sentences.
“The bill has it wrong,” said Doob. “Bill C-25 would enshrine in legislation a logical or arithmetic error.
The bill would automatically defeat its presumed purpose of ensuring that offenders who spend time in pre-trial detention serve the same time as those who deserve the same sentences but who were not detained prior to being sentenced.”
Alexander tells Law Times political pressure for passage of the bill, with a federal election on the horizon. is based on public misunderstanding of two-for-one credit for time served prior to sentencing. “When the public hears the phrase two-for-one, they think [offenders] are getting a break they don’t deserve and they get upset,” he says.
Trudell wrote Nicholson and MPs from all three opposition parties, urging them to study the bill more thoroughly.
“They should just step back a little bit,” Trudell tells Law Times.