The Supreme Court of Canada’s conclusion that the Truth in Sentencing Act is unconstitutional is challenging to explain. In part this is because of the rhetorical flourish of the legislation. Who can oppose Truth, especially with a capital T? But mainly it is because most of us know very little about our criminal justice system and about our prisons.
The Canadian Criminal Code is written, like much criminal law around the world, with a series of ‘theoretical maximum’ penalties. Parliament sets out what the maximum possible sentence can be. The courts then apply the law.
Applying the law can be complicated. Every crime is comprised of a particular kind of knowledge, specific actions, potential consequences. Evidence needs to be carefully weighed. Criminal conviction is the most serious penalty that our society condones. It can, and should, be complicated. It’s serious.
Sentencing is even more intricate. The judge considers the individual circumstances of the crime against the theoretical maximum of the Criminal Code. The Criminal Code gives detailed instructions about what factors are relevant when considering a sentence, these run to about three pages. Two of these factors that were highlighted by the court are parity (fairness as between offenders) and proportionality (to the seriousness of the crime and the degree of individual responsibility).
Judges have discretion to take time spent in pretrial custody into account because, like all of the other factors, it is not evenly distributed among offenders. Pre-trial custody, unlike post-sentencing custody, cannot reduce the amount of time before a person is eligible for parole. Those who are locked up before trial are more likely to be poor and to lack supporters and community connections. They are often unable to meet a monetary requirement for bail, or unable to demonstrate that they have a stable address.
Pre-trial detention conditions are worse than those for post-trial offenders. Remand centres, with a transient population, are generally maximum security facilities with no provision for education or treatment of any sort. People stay there for indefinite amounts of time.
For all of these reasons, the practice of considering ‘extra credit’ for pretrial time has emerged. It is not automatic, it can be weighed in the mix. This credit recognizes that those who do time pre-trial are deprived of their liberty prior to being convicted of anything, in rotten conditions, for an indefinite amount of time. Most often because they are poor.
Without pretrial credit, those who serve time before being sentenced would end up with longer sentences than identically situated wealthier people.
The government had sought to change this on the basis that a system can could be represented by the pithy formula ‘one and a half days equals one day’ is misleading. This view only makes sense in the absence of any knowledge about what is actually going on. The Court held that stripping judges of their inherent discretion to weigh all factors in sentencing could not be done in an ambiguous way.
Many believe it ought not be done at all. But that was not the question this time around.
Pretrial detention exacerbates all the other biases that we well know are embedded in our criminal justice system.
That is the truth about sentencing. Don’t let the government tell you otherwise.