Ottawa cracks down on ‘time served,’ with Truth in Sentencing law
>But it’s just ‘smoke and mirrors,’ insists former crown prosecutor
Published February 24 , 2010
By Martin C. Barry • TLN

Bill C-25, the federal government’s new legislation to prevent criminals from getting out of jail early because of time spent in custody before going to trial, is getting positive reviews from provincial justice officials — although not everybody is a fan.
On Tuesday, the day after the legislation came into force, Conservative Attorney General and Justice Minister Rob Nicholson said during a conference call with the Laval News that Bill C-25 “fulfills the government’s commitment to Canadians to assure that criminals serve a sentence that reflects the severity of their crimes.”

Truth in Sentencing
Referred to as the Truth in Sentencing Act, Bill C-25 does away with a legal tradition which had prevailed in Canada until now. Judges could give double and sometimes even triple credit for time spent before trial behind bars. However, anyone charged now with a crime will get only single credit if they are eventually convicted, although some special circumstances will allow for 1.5 days for each day behind bars.
The double and triple credit rule came into being as a kind of compensation for the fact that accused suspects are often held in custody at detention facilities where the conditions are not on par with regular jails and penitentiaries. While still presumed innocent, suspects are often kept locked in cells all day long.

Restoring confidence
However with extra credit for time served before trial, there was a growing suspicion that some lawyers, abusing the legal system, learned to delay proceedings with adjournments before entering a guilty plea, knowing that their client would receive at least double credit for incarceration before trial.
“It does bring more truth in sentencing,” said Nicholson, “and it gives Canadians more confidence that justice is being served.” Nicholson claims that former British Columbia Attorney General Wally Oppal told him of a case where an accused didn’t even want to have a bail hearing because he knew he’d be racking up double credits for his pre-trial custody time.

Provinces on board
According to Nicholson, Bill C-25 has received the support of all of Canada’s provincial attorneys general. “They used to tell me how the courts were all clogged up, how they were getting endless remands or adjournments and this isn’t good for the whole system. I think this is a step in the right direction.”
But among some with lengthy experience in the legal profession, there are misgivings about the new law. Andrejs Berzins, former chief crown prosecutor for the region of Ottawa, told the Laval News that he doubts it will have much impact. “It is window dressing that misleads the public into believing that this is in any way going to make them more safe,” he said. “It will not. It is all simply a question of smoke and mirrors. In fact, I think the legislation is the opposite of truthfulness in sentencing.

Former crown critical
“The government, by pretending that this is going to have any significant impact, is not being truthful, and they’re going against what the professionals who are working in the system know, and they’re also going against what studies have shown. They’re simply appealing to the public’s emotions and naïveté and concern about crime, without telling the public what the real situation is.
“In my view, the government would be better off to invest money into a lot of crime prevention initiatives which would go much farther in protecting the public at risk.” Berzins predicts that some judges, feeling their discretionary power has been compromised by the elimination of the time-credit rule, may react by handing out shorter sentences.

Getting around new law
He claims that when mandatory minimum sentences were legislated for some specific crimes some years back, judges and prosecutors got around that by laying similar charges that had no mandatory minimum sentencing requirement. “That’s done quite often,” he said, adding that judges and prosecutors tend to jealously guard their discretion to have the type of sentences they feel fit the individual circumstances.
Reacting to Berzins’s comments, Nicholson insisted, “I think he’d find that provincial attorneys general, not just me, and law enforcement agencies right across the country wouldn’t agree with that. I’ve had law enforcement agencies tell me, and I’ve had this confirmed by provincial authorities, that the courts are clogged up. People just keep getting adjourned. I think this will unplug the resources that are at the disposal of the provincial government. They all tell me this. I think this crown attorney, as well as others, will be quite pleased.”