Winnipeg Free Press - PRINT EDITION

Pretrial custody law wanting

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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

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