Winnipeg Free Press - PRINT EDITION

Pretrial custody law wanting

  • Print

Last week, the Conservative government's tough-on-crime agenda took a hit in a pair of Supreme Court of Canada rulings on its 2009 Truth in Sentencing Act.

Not a fatal hit, but a hit nonetheless. And one partially self-inflicted.

The Supreme Court upheld the law -- which wasn't being constitutionally challenged -- that removed judges' discretion to grant the controversial "two-fer" credit for pretrial custody to convicted criminals. However, it gave the law a liberal interpretation that reserves, still, a good deal of discretion to sentencing judges.

Judges, on sentencing convicted accused, routinely awarded two months off a jail or prison sentence for every month spent incarcerated in a remand centre awaiting trial. The Truth in Sentencing Act removed the two-for-one discount. It replaced it with a provision that stipulated a one-to-one credit as the general rule. The government intended, and presumed, this would become the new norm on sentencing.

However, the act also permitted judges to allow up to a maximum 1.5-1 credit ratio in "exceptional circumstances" -- without defining what that means.

The practice of a pretrial custody two-fer sentencing break evolved to recognize time spent awaiting trial in a remand centre is not only hard time, due to overcrowded conditions and lack of treatment and rehabilitative programs, but also "dead time," that doesn't count for early release eligibility or parole. Nonetheless, the Supreme Court rulings only indirectly addressed the historical 2-for-1 sentencing credit that became so infamous and spawned the new law.

Rather, the pair of cases focused on government challenges of judicial decisions that, in its view, too generously employed the law's new maximum 1.5-1 credit ratio.

Ultimately, the government's sloppy legal draftsmanship hurt it, big time. The Supreme Court used the legislation's lack of clarity about what precisely are exceptional circumstances against the Harper government. It sanctioned an elastic definition -- one that includes pretrial custody in and of itself as an exceptional circumstance, which therefore automatically gives rise to application of the maximum allowable credit.

The government has not announced its intention in light of the rulings. But its only recourse is to go back to the legislative drafting board, amend the law and present a carefully worded reworking of the law to Parliament.

If it's serious about severely restricting maximum pretrial custody credit on sentencing, fixing its legal-drafting gaffe should be a priority.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien, Shannon Sampert, and Paul Samyn.

Republished from the Winnipeg Free Press print edition April 21, 2014 A8

Fact Check

Fact Check

Have you found an error, or know of something we’ve missed in one of our stories?
Please use the form below and let us know.

* Required
  • Please post the headline of the story or the title of the video with the error.

  • Please post exactly what was wrong with the story.

  • Please indicate your source for the correct information.

  • Yes

    No

  • This will only be used to contact you if we have a question about your submission, it will not be used to identify you or be published.

  • Cancel

Having problems with the form?

Contact Us Directly
  • Print

You can comment on most stories on winnipegfreepress.com. You can also agree or disagree with other comments. All you need to do is be a Winnipeg Free Press print or e-edition subscriber to join the conversation and give your feedback.

You can comment on most stories on winnipegfreepress.com. You can also agree or disagree with other comments. All you need to do is be a Winnipeg Free Press print or e-edition subscriber to join the conversation and give your feedback.

Have Your Say

New to commenting? Check out our Frequently Asked Questions.

Have Your Say

Comments are open to Winnipeg Free Press print or e-edition subscribers only. why?

Have Your Say

Comments are open to Winnipeg Free Press Subscribers only. why?

The Winnipeg Free Press does not necessarily endorse any of the views posted. By submitting your comment, you agree to our Terms and Conditions. These terms were revised effective April 16, 2010.

letters

Make text: Larger | Smaller

LATEST VIDEO

Lawless in the Morning: Gary answers your questions (March 25)

View more like this

Photo Store Gallery

  • A Great Horned Owl that was caught up in some soccer nets in Shamrock Park in Southdale on November 16th was rehabilitated and returned to the the city park behind Shamrock School and released this afternoon. Sequence of the release. December 4, 2012  BORIS MINKEVICH / WINNIPEG FREE PRESS
  • Marc Gallant/Winnipeg Free Press. Local- Peregrine Falcon Recovery Project. Baby peregrine falcons. 21 days old. Three baby falcons. Born on ledge on roof of Radisson hotel on Portage Avenue. Project Coordinator Tracy Maconachie said that these are third generation falcons to call the hotel home. Maconachie banded the legs of the birds for future identification as seen on this adult bird swooping just metres above. June 16, 2004.

View More Gallery Photos

Poll

Will the closure of Future Shop affect your shopping?

View Results

Ads by Google