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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 13 - Evidence, September 17, 2009

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OTTAWA, Thursday, September 17, 2009

The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:52 a.m. to consider Bill C-25, An Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody).

Senator Joan Fraser (Chair) in the chair.

[Translation]

The Chair: Welcome everyone. The Standing Senate Committee on Legal and Constitutional Affairs is continuing its study of Bill C-25, An Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody).

We have with us this morning two very interesting witnesses.

[English]

We are pleased to welcome Professor Julian Roberts from the Centre of Criminology at the University of Oxford; and Professor Michael Weinrath from the University of Winnipeg. Thank you both for appearing before the committee this morning.

Mr. Weinrath, please proceed with your presentation.

Michael Weinrath, Professor, University of Winnipeg, as an individual: Good morning and thank you for this opportunity to be of service to the committee. I am pleased to be here on behalf of two entities.

First, when I originally conducted my research in the area of remand, despite my winning personality and wonderful research assistants, it was still necessary to persuade the accused — the inmates — that it would be beneficial to participate in a research study. I said that it would give them a chance to have a voice. However, some looked at me and said, it will be research and publication for you but this voice thing we are not so sure about. I assured them that I would make those efforts, and I am pleased to have that opportunity today.

Second, I am here on behalf of social science and the criminal justice system in the hope that changes to the justice system and legislation affecting the justice system will be based on sound social science and empirical facts.

Some of you have read my article published recently in the Canadian Journal of Criminology and Criminal Justice. It covers a number of surveys and discussions during the winter of 2006-07 of 226 inmates, some on remand and others on sentence, at the Headingley Correctional Centre in Manitoba.

My other research, with which you might not be familiar as it will be forthcoming, involved in-depth interviews with inmates in Manitoba, Alberta and British Columbia. The sample is smaller but the data are much richer given that each interview was one to two hours. We discussed prison life in Canada and prison life for remand inmates, which is certainly germane to the committee's study of Bill C-25.

Committee members are likely familiar with the facts that remand has gone up, and that the proportion of inmates serving pretrial detention has increased. It has increased at a more significant rate recently. Increased remand is seen throughout the world, although it is at a much higher level in Canada.

One reason that Bill C-25 is being proposed, as I understand, is the sense that the two-for-one credit currently provided for time spent in pretrial detention is too generous in that it encourages inmates to stay in remand, drag out their cases, tie up the courts and basically try to avoid punishment. Also, when this situation is reported in the media, it brings the justice system in disrepute.

The impetus for the proposed legislation, as I understand it from living in Manitoba and seeing the ministers of justice report in the newspaper on this particular issue, is that the ministers of justice have pressed for this particular legislative change, again focusing on the issue of the two-for-one credit system.

I am concerned about Bill C-25, which is ill-conceived and has two fundamental flaws. As it is written, the bill posits a one-for-one credit, unless reasons can be adduced as to the onerous nature of pretrial detention. In that case, an accused can make argument and receive a credit of up to 1.5.

It seems to me that this provision is suddenly a huge departure from what we have seen in Canada. The arguments that we can see in the case law and that are based on empirical research, first done by Professor Martin L. Friedland in the mid-1960s, are that remand life is hard. We know that remand inmates do not have the same access to programs, and live on units. There seems to be some assumption that suddenly, life in remand centres in Canada has become easier. Again, this situation has been discussed in case law numerous times. The Supreme Court articulated it well in R. v. Wust. I do not see that anything has changed materially in our remand facilities.

The other issue with enhanced credit for pretrial detention is based on our parole and remission laws in Canada. An inmate who serves a period of time in custody before being sentenced to further custody loses an opportunity to earn remission. An inmate can earn remission on up to one third of the sentence in Canada, which means that federal parole can be applied for at the one-third mark in the sentence.

Various provincial schemes allow the same thing. There has been no change in parole legislation and no change in remission. From the outset, I cannot grasp the one-for-one credit. I suppose it would be up to some defence counsel to argue that this change contradicts previous case law in the matter and is fundamentally unfair to the accused.

The reason for the two-for-one credit still exists. I have conducted research in different sentence and remand facilities. Remand life in Canada is still difficult. There is still little access to programs in remand facilities. Remand centres are crowded. Even the newer facilities in Western Canada such as the new remand centre in Winnipeg built in the 1990s and the centre built in the 1980s in Edmonton are overcrowded. One centre is stuck in a unit with a few other inmates where inmates receive maybe half an hour to 45 minutes of recreation per day. It is not a life that a lot of people would particularly aspire to.

Another flaw in the proposed legislation is that we have not seen much hard evidence on the influence of two-for-one credit on the remand rate. People point to R. v. Wust. The remand rate has accelerated over the last 15 years. It is suggested that the biggest contributor is that two-for-one credit is used most consistently.

There are other possible explanations. We know that time to trial has increased significantly. As time to trial increases, the amount of time that a long-term remand inmate can spend in pre-trial detention has increased as well.

Many of you are probably familiar — or maybe you are trying to forget — with your statistics in university when people talked about a spurious common cause. In research, we try to control for alternative explanation. I present to my students one example that everyone can relate to — auto insurance. For many years, consumers received a break on their auto insurance if they were married. The reality is that it did not matter that they were married. It mattered that married people were usually older. If they were older, they were less likely to be in an accident. Age was the biggest contributor to automobile accidents, but marriage became mixed up with age and people thought that somehow being married made them a safer driver.

On one hand, there is the issue of two-for-one credit. I suggest also that the situation involving longer times to trial could be a significant driver in our high rate of remand.

I also have a section on research on enhanced pre-sentence credit. The list is fairly short; there has not been much research. I performed some research. I spent time surveying inmates and talking to them. Let there be no confusion. I would probably conclude from my research that some inmates manoeuvre for two-for-one credit. Perhaps it gives them a feeling of control; perhaps it gives them some feeling that they are beating the system in a small way.

However, the biggest reason for higher remand that came out in my surveys was that inmates felt time to trial was their biggest impediment. In talking to inmates — especially in the in-depth interviews — they become emotional on the subject. In the presentations from the ministers of justice, the ministers think people are colluding in backrooms.

Inmates are upset. They feel the Crown has control. One hears stories about inmates in remand right up to the time of trial and the Crown withdraws charges at the last minute, happy that they were in remand for a 12-month period. There are different perceptions of who is controlling and contributing to this process.

In the research I conduct, surveying or interviewing inmates, people have said, that research is interesting, Professor Weinrath, but could it be that those inmates are not telling the truth? Are they not just self-interested and giving you information in the hope that you will go out and tell everyone that inmates are okay? You would be surprised what inmates tell us when we survey or interview them — things that are not particularly favourable towards them.

I always wonder why there is a double standard. When I conducted my research at Headingly in Manitoba, I approached the province. I said we should conduct a study to see who is asking for the remands and making all the motions. Who is contributing to this two-for-one credit? I phoned some federal sources about funding. They told me they did not want to fund the study unless everyone wanted to be involved. There was no interest except from Corrections Canada, who had an interest because Corrections Canada receives the brunt of the overcrowding and all the remands.

It seems that Crown agents can go to their ministers and tell them they are sure this high rate of remand is because inmates and lawyers are colluding for two-for-one credit. However, I ask the committee, have people presented empirical studies? Have they reviewed cases or provided anything other than these large correlations where there could be other explanations? I am interested in seeing it if they have provided studies. I could be proven wrong. Perhaps it is the defence and accused who are the large causes of these requests and motions. I am somewhat dubious.

There are two standards. Crown agents can go to their ministers and make these allegations without providing systematic evidence. I perform my due diligence in sampling and analyzing data. I am told the cause is only a bunch of self-interested inmates.

Why would Crown agents be self-interested? This legislation suddenly cuts two-for-one credit to one-for-one. If I were a Crown prosecutor, I think that change would put me in an excellent position to leverage guilty pleas. There clearly seems to be possible self-interest on the part of the Crown.

With respect to the legislation, I will recap. Essentially conditions in remand facilities have not changed in terms of the credit given in the past. Legislation regarding remission and parole has not changed.

If you ask me what is the best thing that could happen, I think that the bill should not proceed. An empirical, properly constructed study should be conducted on why our remand rate is so high. We might learn a number of beneficial things about court processes and how to improve them for the benefit of both the accused and the state.

Julian Roberts, Professor, Centre of Criminology, University of Oxford, as an individual: I am grateful to the committee for the opportunity to be here again. I am not some pointy-headed British intellectual. I did work many years in Canada.

[Translation]

I am a proud Canadian.

[English]

I have thought about this issue in the last few years. Before I left for Oxford, the issue was big in Ontario. I want to make a few quick points. Mr. Weinrath has covered one of them.

There clearly is what you might call a credit crisis — a pretrial custody credit crisis. Unlike the real credit crisis, this one might be more apparent than real. It is important to put on the table the evidence that this practice is being abused.

You would not want courts to be according three- or four-for-one credit because that would introduce variability. It would undermine public confidence, et cetera. There is a lot of evidence it is happening. The research record is scant.

Whenever people talk about this issue, they talk about anecdotes: I heard about this defendant or accused that was sitting there rubbing his hands in custody, thinking about all the time he was earning. Maybe that is true. Maybe there are such individuals. Maybe there are several of them.

However, we need to see the evidence that it is being abused and that there is inconsistency of application before we take what I consider a fairly radical step of codification. Obviously, Parliament is supreme. Parliamentarians can and do legislate in the field of sentencing. Generally speaking, the relationship that has emerged over the years between the legislature and the courts is the legislature setting the parameters of sentencing — minimum and maximum penalties and important principles. Parliament passed that legislation in 1996.

However, leaving the practice of determining sentence to an individual court — and any time you remove discretion, particularly if you do it with something like a mandatory sentence — it impairs the ability of the court to provide justice. I am not saying codification is not a good idea. I am saying it is something you do not want to do easily or without evidence. I say that to back up the point made by Mr. Weinrath.

One of the grounds for the bill is clear, I think, and that is to restore public confidence. Again, I think we need to see evidence that the public finds the principle of two-for-one credit or 1.5-for-one credit to be outrageous. Generally, I think it is true that people unthinkingly will say that principle does not make sense. However, if you talk to people about sentencing, they will say a lot of things do not make sense. For example, they do not like a guilty plea. They will say, what do you mean you gave someone a discount because that person pleaded guilty; they are all guilty.

The same is true for the first offender sentencing discount. Why would you give a more lenient sentence because it is a first crime?

When one explains the principles underlying the first offender discount or the guilty plea discount, people understand it. We can explain to the public that it is a bit like a fine: The person is fined $5,000 and it turns out that person has already paid $2,000 to the state. Therefore, how much does that person owe? Is it $3,000 or 5,000?

I think people will accept that time in custody prior to conviction is something that should be considered in terms of the sentence ultimately imposed.

That principle has never really been explained to them and my guess is that courts seldom explain it. Courts could be clearer about the practice. That problem does not necessarily justify a bill that will put in hard numbers a ratio that courts will be bound by.

My third point on the current situation is that the courts have addressed this situation; there is an appellate jurisprudence on pretrial custody credit. We have Wust, which has given guidance to the courts. Again, what problem will this bill solve that Wust did not address or resolve?

I think the government needs to make a clearer and more compelling case to support this fairly radical piece of legislation. Do not codify or intrude into the exercise of discretion at the trial court level without clear and compelling evidence that it is necessary. If it is necessary, then so be it.

However, I think we need to see a more compelling research record than we have to date. I will stop with that point because we have already taken about 20 minutes.

The Chair: That was fascinating and I am sure the questions will be equally fascinating.

Senator Nolin: Thank you, Mr. Weinrath, and Mr. Roberts for making yourselves available back in your country, where they are making good laws.

Professor Weinrath, am I right in my analysis of the root cause for the emergence of those credits is mainly from provincial jurisdiction responsibilities?

Mr. Weinrath: I would say that, for the conditions —

Senator Nolin: I said "mainly." Of course, there is the calculation of parole, which is purely federal. However, the other reasons mainly arise from the lack of quality of the centres, a provincial responsibility.

Mr. Weinrath: That would be true. Administration of remand centres is a provincial responsibility.

Senator Nolin: The quality of the education, facilities, the overcrowding and all those conditions is basically in the hands of those who are asking for these amendments, is that true?

Mr. Weinrath: Yes, I would say that is true.

Senator Nolin: Mr. Roberts, you talked about the credit crisis. Can you inform us about the system in the United Kingdom?

Mr. Roberts: The system in most other common law jurisdictions is a lot simpler. That is to say, the court imposes a sentence — six months — and, if the individual has been in detention prior to conviction, the individual will go back to the correctional authority and the authority will take off the two months, let us say, that the individual has already spent in prison.

Senator Nolin: That means the credit is one-for-one.

Mr. Roberts: It is one-for-one, yes. The issue of the ratio is interesting, and I think it is clear that you could have two separate regimes. One is bail, where the decision to detain is for different purposes and according to different criteria, in which case you do not need a direct comparison necessarily between the two because the decision to imprison after conviction is for a different purpose and follows different criteria.

However, generally speaking, around the common law world, the idea is that the two should be regulated by the same kinds of considerations, and that a day in custody prior to conviction should count the same as one after conviction. If that is the case, then you are sort of forced into a bill that would say 1.5 for the calculations that you will hear about in the next hour.

Senator Nolin: According to your expertise, am I right to understand that the Canadian experience is mainly driven by the fact that the courts have used a lot of discretion, building those credits into the sentencing?

Mr. Roberts: It is more complicated than that because judges in this jurisdiction — this does not seem to happen elsewhere, in my experience — appear to be sensitive of the question of the adversity of the conditions of pretrial detention. I have heard no discussion in English courts from judges saying: Because the conditions were bad, I will give you double credit.

Senator Baker: If I might pick up on that point, the judges do not invent reasons on their own and do not invent things on their own. The case is presented to them by defence counsel and by the Crown. We do not have a judge all of a sudden saying in Canada: This detention centre is disgraceful and violates the United Nations Basic Principles for the Treatment of Prisoners.

Correct me if I am wrong, but I do not think other jurisdictions consider a violation of the Basic Principles for the Treatment of Prisoners during sentencing. I think this consideration would be extraordinary in any other jurisdiction that you referenced.

Mr. Roberts: In England and Wales, the prison conditions would be affected by jurisprudence relating to the European Court. You are right regarding your first point. The magnitude of the ratio would be a matter of submissions by counsel and not something a court would take upon itself necessarily.

However, in my experience, and from talking to a lot of people, it is common practice for the court to give two-to-one credit and not to wait for a request from counsel to give two-to-one, certainly in the province of Quebec. It is the norm.

Senator Baker: In some jurisdictions it occurs. You will notice the Court of Appeal of New Brunswick made that a norm in a judgment by that court. I do not know whether it has been done in any other jurisdiction in the country. Surely, it goes back to what Professor Weinrath mentioned. We have an extreme problem of overcrowding in detention centres whereby there are not enough beds for the persons in the room, and someone is destined to sleep on the floor for two or three years. Usually, the weakest of the bunch ends up sleeping on the floor.

Professor Weinrath, I am surprised that you were able to conduct interviews in remand centres. The prisoners would have been suspicious that you were looking for voice identification or something like that. I am surprised you could interview anyone.

Senator Angus: Maybe it was Conrad Black.

Senator Baker: He was not on wiretap evidence. Did you make a distinction, professor, between the remand centre and the holding cells — if you are brought from the detention centre to the holding cell, the overnight facility with the toilet in the middle of the floor, lights on 24 hours and the place jammed with people? I quote now from cases — I was about to say Professor Angus, but I mean Senator Angus. I know him mainly from his arguments before the Supreme Court of Canada and not from the local lock-up.

Did you make a distinction in your findings between those two groups of people?

Mr. Weinrath: With respect to remand, because there are so many remand inmates, they have actually spilled over into the sentenced facilities. The Headingley Correctional Centre in Manitoba and the Fort Saskatchewan Correctional Centre in Alberta are the flagship facilities in those provinces. They used to hold pretty much all sentenced inmates. A lot of the best programs in the province were run there and the longer term inmates were there.

When I was at Headingley, about 70 per cent of the inmates were remand inmates. These inmates were held on units, usually the old units, and they actually impaired the prison life of the sentenced inmates. When that many inmates are on remand, everyone's movement must be controlled. Suddenly there is not as much program room. The remand situation spills over and negatively affects the other inmates.

To give credit to the provinces, sometimes in those situations they have tried to provide programming to remand inmates. However, programming is usually short, and sometimes half the inmates are gone before the completion of the program because their case is called up, or sometimes they must make a court appearance. This high rate of remand negatively affects our provincial sentenced inmates.

The other thing that has happened because we have so many inmates on remand — and again, I make the argument that their cases are taking so long to go to trial — is that the average sentence length of inmates going into federal custody is now lower. It used to be that a lot of inmates were sentenced to four to five years. Now they are receiving sentences of between two and three years.

They come into the institution and some of them have significant problems. They have been sentenced to fairly long periods of time and their parole eligibility is coming up soon. The parole officers, the case preparation officers, cannot access programs for them in time to qualify for parole, so they end up spending longer periods in custody.

I agree that a lot of inmates do not receive parole; our parole grant rates are below 40 per cent now. However, for those inmates who are eligible, who could be released and working, making a contribution to Canada, our high rate of remand is providing a disservice to them.

Senator Baker: We have approved changes to the Criminal Code relating to availability of bail and the reverse onus. All changes we have made, that this committee has passed within the past two years, have added to the list of people who have to prove, on a reverse onus, that they are allowed out on remand. Perhaps those changes have contributed to the problem.

You made an interesting comment in saying that Canada is in a distinct position, comparatively speaking to other jurisdictions, in that we have so many people on remand. You mentioned that a person you had interviewed said: Look, I can be held here for a year on remand and then the Crown can turn around and say, we will drop the charges and now you can go home.

We heard evidence yesterday that 35 per cent of the people who are charged are never convicted. They are released: they are found innocent, the Crown drops the charge, there is a judicial stay in the proceedings or there is some other reason.

If we were to pass an amendment to the bill that would automatically cause the court to turn its attention to compensation for those persons who are found innocent of a charge, which would take into account their legal fees and their loss of time at their jobs, do you think that provision would correct part of the problem?

Mr. Weinrath: Certainly, that provision would place a more significant onus on the Crown. Some of the inmates are learned in the law. One inmate pointed out to me that it is hard to win a malicious prosecution suit against the Crown. That provision would create a significant distinction.

The other problem with that provision, though, is plea bargaining in Canada. I am not sure that the defence counsel would strike a deal with the Crown not to pursue that.

We were evaluating a youth program and we interviewed a Crown attorney. It is amazing that Crown attorneys are always concerned about the discretion by the probation officers and administering breaches of probation. As you say, when one mentions to them all the charges that are withdrawn, one is told, that is different.

To go back to your question, yes, I guess that provision would have an impact. I would be worried about the influence of plea bargaining.

Senator Angus: I believe you both have acknowledged that the one-to-one ratio is in effect in other countries like Canada, such as the U.K., the U.S. and so on. Is it enshrined in the statutes in those countries?

Mr. Roberts: Yes, but the one-to-one is unlike the one-to-one created by Bill C-25. It is one-to-one where a day before carries the same weight as the day after. It is a bit like the Canadian sentencing proposal where sentencing is backdated to start at the point at which the individual entered custody.

Senator Angus: However, a day is a day still, rather than a day is two days?

Mr. Roberts: Yes, that is correct.

Senator Angus: The thing that confuses me is that I think both of you have acknowledged that codification in this way is not a bad thing; only perhaps it is the wrong time to do it. How do each of you answer the following question: If we did not have this overcrowding in Canada, which puts the situation in a distinct position because of the overcrowding and the delays that are prevalent in the bail courts, would you support this bill?

Mr. Weinrath: I am sorry, you are asking if —

Senator Angus: I am asking you both the same question. If we did not have, as you have described, the conditions that make the situation distinct in Canada — namely, if the conditions in the remand centres, the detention centres and the lock-up were not so disgusting, and they are not necessarily the same today as they were when you saw them, I saw them or as that 1931 case described them — if the facilities were more modern and not below standard, would you have less of a problem with the bill, or would you have any problem?

Mr. Weinrath: You cannot change that, though. Obviously, you want more modern facilities, but I am talking only about life on remand. When individuals are in a sentencing facility, they can move around the facility, apply for programs and think ahead about their life. When they are in a remand unit, they are confined to a single unit.

I think perhaps what you are getting at is that Canada takes a different view of these things than other nations do. We recognize the inequity of being accused of a crime, being held essentially in maximum security custody and being denied even the comforts of life, and the quality of life, that a sentenced inmate has. Canada has recognized that situation.

I am not sure there are not problems with the one-for-one credit; the backdating and trying to prepare inmates for parole in other countries. Again, Canada and our courts have recognized that issue as a problem.

When you play the comparison game, the issue is that these other nations are not as generous as we are, and they do not make these interpretations as we do, but we do not have capital punishment in this country. Do we count the number of nations that have capital punishment and say, we should jump on board? The research in this area has been positive and progressive.

Senator Angus: You are telling me something that I might not have understood before. In the U.K. and in the U.S. the ratio is one-to-one, but you have told us that they have bad conditions as well. Canada is not distinct in this situation. I am caught when you say that you cannot fix the remand conditions and the detention centres. My question was hypothetical: If we had modern facilities, no overcrowding and more judges for the bail courts and so forth, would you be against this bill as such? Is it your opinion that this bill is bad law as law?

Mr. Weinrath: Yes, I think that the two-for-one credit has been established. As I mentioned in my presentation, the conditions in remand have not changed, and they can change only marginally to improve the conditions. The centres will always be limited in terms of recreation and other things. There are other reasons that we cannot give treatment to people in a remand facility. Because they are accused only, the offer of treatment would place an overt pressure on them to admit guilt. We cannot change those conditions materially and we cannot change the fact that they cannot earn remission.

Senator Angus: Those conditions are the same in the U.S. and in U.K. and we are not distinct in this situation. We are distinct in the system that we have today and this bill would change that system. Is that right?

Mr. Weinrath: We are distinct in the terms of the credit we give.

Mr. Roberts: I have two problems with the bill. There are two issues with enhanced credit. The first is the one that you raised on the fact of conditions being much worse in remand facilities than in post-conviction facilities. The second is remission and the fact that an inmate will not serve the whole sentence as determined by a court.

Taking away the first issue still leaves the second issue to be considered. In these other jurisdictions, the day in detention prior to conviction counts the same as post conviction. If you cleared up the two problems that you identified, I do not see a problem with putting the provision in this kind of law. Why would a court, absent these two justifications, enhance when there is no justification for the courts to enhance because these two problems, or two differences, have been resolved?

Senator Angus: I would like to ask Mr. Roberts what he said about the one-and-one credit before and after. Would an amendment help this bill that made the one-and-one credit the same before and after, as you have stated that it is in the U.K.?

Mr. Roberts: Yes, it would help if you could ensure that the day spent by an individual in custody pretrial equalled a day spent in custody after conviction. Apply my analogy to the fine: The day spent before should be worth $1 if the day spent after is worth $1. Currently, the values are: 80 cents for the day before and $1 for the day after.

Senator Angus: It is a just society.

Senator Wallace: Your presentations were good. I direct my first comment to Professor Weinrath.

There appear to be numerous reasons for a greater remand population today than in the past, and that population seems to be ever increasing. Delays in going to trial can be one of the factors. However, in your opinion from your research, the impact of these pre-sentence credits has resulted in an increase in the remand population. Is that statement true? Is that one of the factors for the increase?

Senator Angus: That is why we are conducting the study.

Mr. Weinrath: As you point out, during my presentation I said that some of the inmates stated that they were manoeuvring in remand. It was a small percentage. The bigger issue with the inmates that I interviewed was the length of time to trial. If we want to fix the problem, that issue is the best place to start.

Senator Wallace: Minister Nicholson and his department have received requests from all the provincial and territorial justice departments to implement Bill C-25. Obviously, they are of the view from their on-the-ground experience in being responsible for remand facilities that the two-for-one credit or three-for-one credit scheme currently in place has had an adverse impact on their remand population. That is strong evidence for Minister Nicholson and his department to receive. Should they not take that evidence seriously? Is that not strong evidence?

Mr. Weinrath: In terms of the recommendations and the various things that can be done, that bill is certainly one of the cheapest alternatives. It would not require as much in the way of resources to implement the bill.

I worked in the criminal justice system for 14 years. I like to go to institutions to walk around and talk to staff and the inmates. It is important to be out there, as they say. Having said that, we know from numerous studies that people in the criminal justice system are like people in occupations everywhere: They tend to want to do things that make life easier for them. This kind of shift in the system would be a boon to Crown prosecutors in terms of their dealings with defence counsel and with the accused.

Senator Wallace: I hope that you are not entirely accurate with that view and that principles beyond simply trying to make life easier would influence them to make this kind of recommendation. I hope that furthering the interests of justice in their respective provinces is the main factor. I tend to think the main factor is just that when all is said and done.

As you say, it is one thing for us to sit around this table rather than live the real-life experiences that many have, and see the impact of pre-sentence credits on the remand population. There is a real world and you have been in it, in part through your research. I realize many people have made statements and there are quotes. In looking for opinions of those who have dealt with the problem on the front line, I have a quote from Dr. Matt Logan, an RCMP expert in sex offences, from April 13, 2009. Granted, this quote is one opinion and one experience only. Dr. Logan said that he took two years out of his career and went to jail as a psychologist for Correctional Service of Canada. He found that the two-for-one credit is a scam. He said that the people who are pulling the two-for-one credits are clogging the court system and backing it up even further. He was extremely gratified to see the two-for-one credit disappear.

I do not say that on the basis of that opinion, we should implement changes to the Criminal Code, but we are hearing about the various experiences on the ground — yours, those of provincial justice departments, and those of law enforcement across the country, which seem to be strongly in favour and unanimous in their support for this proposed legislation. Yes, I suppose there can always be additional studies, and I do not dismiss that need. However, I am saying that my belief is that the department has been in receipt of real life experience that supports Bill C-25. Do you agree?

Mr. Weinrath: People often make their representations on the basis of their own perspective, and of the importance of the issue to them. There are situations where people have used the two-for-one credit; I did not dispute that. However, that view is not true research. You quoted one person. At least I surveyed some 220 inmates and spent time talking to other inmates. I have tried to conduct research that is systematic, although it is not as good as the research that should be done on this issue. If someone were to commission a study and found the general weight of the results with respect to more action on the part of defence counsel vis-à-vis delaying time to trial through the use of the two-for-one credit, I would say that it was fine, provided the weight of the evidence bore out that view.

We have a great number of representations from the ministers of justice. I do not want to suggest that people in the justice system are totally self-interested and manoeuvring because people generally are sincere in wanting to do their jobs well.

Senator Wallace: I was sure that is what you thought and maybe had overstated a bit. Thank you for clarifying that point.

Senator Dickson: Professors, there is a provision in the proposed bill — as you are aware — for an increase to 1.5-to-one credit if the circumstances are justified. I am interested in your comments on how you feel about that provision and the extent to which there is still discretionary power for the judge, depending upon the circumstances. Why do the U.K. and other jurisdictions not have such provisions?

Mr. Roberts: The 1.5-to-one ratio itself goes back to the question of whether one wants pre-trial detention to be considered with the same weight as post-conviction detention. The figures are clear: Take into account remission. Professor Webster and Professor Doob will give you evidence on this in a moment. Credit cannot be one-for-one because a day of post-conviction custody will be subject to remission, whereas it is not the case for the pre-trial detainee.

Therefore, we are forced by the existence of that correctional structure to 1.5-to-one credit before we even consider enhancing that ratio for particularly adverse prison conditions. I think 1.5-to-one would be the point de départ. I would not want it to go much higher because the problem is a correctional one. If these conditions are bad, the problem should be solved by correctional authorities and not by individual judges. We might want to increase, or allow room to increase, because that is the tradition or has been the tradition, but not particularly big increases.

Why other jurisdictions have not increased the ratio is a bit of a mystery to me. I tried to find out by talking to colleagues in the United Kingdom — England and Wales. There has not been a debate about whether adverse pre-trial conditions should be considered differentially or should be given consideration at the time of sentencing. This is in part because of the mechanism that the sentence begins when someone enters custody. The question does not arise in those other jurisdictions in part.

Mr. Weinrath: Essentially, the decision of R. v. Wust talks about discretion for the judiciary at the point of sentencing in terms of giving enhanced pre-trial credit. Increasing, or sometimes decreasing, credit in the case of offenders who have not shown up to court and reoffended has always been the purview of judges. I see it as trying to reduce the ability of the judiciary to give enhanced credit. That situation is not a change in some respects, but it has definitely been capped at 1.5-to-one credit.

We have to think about the pre-trial experience of people. We saw in a court decision in Manitoba that credit was given to someone who was on bail and had a curfew. Essentially, when someone has a curfew from 6 p.m. to 6 a.m. or an all-day curfew, it is like being in prison or having a conditional sentence. With some controversy, the sentencing judge gave the individual some credit.

That situation is where the courts have differed from corrections. The point was made earlier that institutions rarely look at the conditions in the institution. There are some places in the U.S. where they looked at the conditions in the institution and started releasing inmates early. Canada has never done that. The courts must take into account efforts at treatment, obtaining employment and making some effort, which is generally harder to do when individuals are in custody than when they are in the community.

Those things in the bill are good. However, credit is obviously capped to try to reduce the opportunities for the accused.

Senator Joyal: I want to return to the Wust decision of the Supreme Court in 2000 that you mentioned in your presentation. Paragraph 45 of the decision states:

In the past, many judges have given more or less two months credit for each month spent in pre-sentencing detention. This is entirely appropriate even though a different ratio could also be applied, for example if the accused has been detained prior to trial in an institution where he or she has had full access to educational, vocational and rehabilitation programs. The often applied ratio of 2:1 reflects not only the harshness of the detention due to the absence of programs, which may be more severe in some cases than in others, but reflects also the fact that none of the remission mechanisms contained in the Corrections and Conditional Release Act apply to that period of detention. "Dead time" is "real" time. The credit cannot and need not be determined by a rigid formula and is thus best left to the sentencing judge, who remains in the best position to carefully weigh all the factors which go towards the determination of an appropriate sentence, including the decision to credit the offender for any time spent in pre-sentencing custody.

As Professor Roberts said, we now are asking to limit that discretion in a way that it will be one-for-one. It is the judge who will decide if special circumstances or circumstances justify a maximum. We did not hear evidence of the impact on the system of the change from two-to-one to 1.5-to-one.

Will reducing the credit from two to 1.5 have a big effect on the so-called limitation of clogging the system? That point has not been made. It has been stated, but you said in your previous answer that the department has no study on this issue. If the department had studies, they would have tabled them when we asked for them, and they were unable to provide any information.

Witnesses from the Department of Justice were here yesterday. They mentioned they have reviewed 110 cases where the average credit was about two-for-one. However, they did not provide us with data that established a clear link of the impact on clogging the system. You stated in your presentation that the average time to process cases from the first court appearance to final decision was up 47 per cent from 1997 to 2007. The witnesses were unable to provide any real data on the impact of the increase in remand on the increase of time to process a case. There are parallels, but the relationship is not well established.

If we make those changes, are we making changes in the context of tabloid justice? A case may receive significant media coverage. People become furious. The open-line programs begin and place pressure on politicians, who then want to intervene.

If we change a system that has been evaluated by the Supreme Court of Canada as the most appropriate system, we need additional information on the relationship between the increase of remand and its impact on the extension of times to proceed with a case. This relationship has not been established before the committee thus far. We were informed that the change would unclog the courts. It seems to me that the change would have more of an impact on the penitentiary system than the court, per se. We heard from a representative of the Crown attorney yesterday who described the impact on the system. It was not at all to unclog the system. The impact was more in terms of the bail system. In fact, rather than solving problems, the change will create more havoc in the administration of justice.

I am still wrestling with the fact that there are too many unanswered elements in the equation for us to conclude that the bill is appropriate in the present circumstances of the state of the law, as identified by the Supreme Court in 2000, and what we are asked to accept here.

Mr. Roberts: If I were a legislator and someone made a legislative proposal, I would want to know first of all what problem this legislation or this bill will address. The problem is spiralling remand population as a result of enhanced credit, exploitation of the credit by accused persons who are encouraged by wily defence counsel, et cetera. First, I would like to see good hard numbers about the problems the legislation is to address. Second, I would like to see what impact the legislation will have.

Senator, you mentioned the issue of the difference in changing from two credits to 1.5 will make. It is an impact analysis. You can do a simulation. Why would you not do that simulation? It is called evidence-based legislation. That is what it is all about: Talk me out of that position.

That is what you need; you need those two things. I am not taking an ideological position against this bill. I am saying you need the evidence to know if the bill is necessary and to know the impact the bill will have, including and most especially, the point you raised.

Mr. Weinrath: I do not think these studies are impossible to conduct. The evidence is there. You have to go to the court records and look through transcripts, endorsements on information and maybe make some observations. You can make projections.

You can also make projections on alternative explanations for the build-up in the remand system. You can plot, perhaps, what might happen if you committed resources to the provinces, or if they committed resources for more night courts and more available court dates, to try to move these cases through sooner.

Again, you would not have to commit resources. However, people could prepare simulations and provide information to you in terms of crafting the legislation.

Senator Joyal: In your study on the inmate population in the context of remand, would the impact on the rehabilitation process afterward be greater on people who stayed for a longer period than others?

Mr. Weinrath: I think that impact is part of the larger concern. I conducted research on motivation for treatment among our remand inmates. For sentenced remand inmates, motivation comes out at 60 per cent. To be fair, some remand inmates may not feel they are guilty or that they have any difficulties. There is an interest in treatment, but again the availability is limited.

My concern is that inmates are spending more time in remand. They are not spending time in sentenced facilities where they have access to rehabilitation programs. The other thing is that, when they are sentenced, they have time to reflect on what it is that they will do. If you have ever worked in a remand centre or with inmates, you will know that their focus is on their case. Usually when I interviewed an inmate in remand, it took half an hour to hear about their case before we could move to the other issues I wanted to talk to them about. Their case is what dominates their thoughts. When will I talk to my lawyer? What is the Crown doing? How is the case moving forward?

Even if they are not taking programs, at least, when they are sentenced, they are thinking about what they will do when they are released. Contrary to what many people say, usually once inmates are sentenced — at least at the beginning — they are becoming tired of being in prison and they are starting to think of other things.

The overall phenomenon of more people spending more time in remand is negative for inmates. It would be good if we could move cases to trial sooner so that inmates spend more time in a more rehabilitative environment.

The Chair: Before I go to Senators Baker and Senator Wallace on a brief second round, I want to clarify something for my own understanding. It is this business of "a dollar is a dollar."

If the sentence is calculated from the day the inmate is taken into custody, the difference in practical effect between that calculation and simply providing a credit of one day as would be proposed in this bill would be, I assume, on parole eligibility? That difference is the main one we are talking about here, right?

Mr. Roberts: Yes, that branch is one of the two branches for considering enhanced credit. They would be equated if you adopted a model of that kind.

The Chair: I wanted to ensure that I was not misunderstanding what we were talking about. We are well into overtime with these witnesses. I ask Senator Baker and Senator Wallace to be as concise as possible.

Senator Baker: That clarification from the chair a moment ago was referenced by Senator Angus, who suggested that, perhaps, there would be an amendment to the bill. I do not know if Senator Angus was suggesting an amendment to the bill to make it —

Senator Angus: I said "what if," which is a big difference. Nevertheless, I did say that, and Professor Roberts answered that the bill would improve it substantially.

Senator Baker: Those are all the questions I have.

Senator Wallace: Professor Roberts, in your comments, you described Bill C-25 as a radical piece of legislation. I take the comment more in a negative sense than a positive one. I suppose the bill could be radical in a positive way, from your comments, perhaps it is more in a negative way.

When I look at Bill C-25 and compare it to the existing pre-sentence credits that are given, the existing norm of two-for-one arose from the courts. It was the result of the judges using their discretion day to day, and they built up a body of case law to support two-for-one as the norm.

Although Bill C-25 starts with a base of one-to-one, it allows the courts to extend that base to 1.5 where circumstances are justified. There are no restrictions in the bill as to what those circumstances are, so we assume the circumstances are up to the courts; the judges will determine what those circumstances are. I think it is a fair assumption that those circumstances will be similar, if not identical, to what is considered today in creating the two-to-one norm.

Again, I am thinking of your words that this bill is a radical piece of legislation. The courts may effectively determine the criteria to be used to establish a new norm, and I suspect it could well be that 12.5-to-one will be the new norm, if the judges are consistent with past practice. Also, consider the fact that this bill requires the courts to provide reasons that support the pre-sentence credit, which I think would be a major improvement over what exists today. When I think of those two factors, it does not strike me as a radical piece of legislation in a negative sense.

We can debate whether the two-to-one credit or the 1.5-to-one credit is appropriate, but if that is the only key distinction, how radical is that change?

Mr. Roberts: The discretion accorded to the courts by the bill is a good feature, and it is unlike some other legislation, such as the mandatory sentencing legislation, where there is no discretion. That discretion is good.

The legislation is radical in the sense that it removes from the court the discretion to go above 1.5. There are two things: There is the inability to go beyond that point where a norm has evolved for something higher than that point; and the bill removes judicial discretion to match a day of detention pre-trial with post-conviction by making the credit one-to-one. In the bill you are saying, I do not care about the business of remission, one-for-one, and that situation effectively creates 75 cents and $1.

That is what I mean. The legislation is radical in the sense that it restricts judicial discretion. The bill does not remove judicial discretion, and I think that is a good feature of the bill. However, it constrains judicial discretion to a considerable degree and that is what I mean by radical.

Senator Wallace: It is the obligation of legislators to create precision in the laws we enact, and not simply to toss the obligation to the courts and let them make law. Courts do make law — we know the reality of that — but there is often the criticism of legislators that we are not precise enough and we abdicate our responsibility to the court. Whether you agree with how this bill clarifies, it certainly does; the bill clarifies the intention, if it is enacted, and to that extent perhaps that clarification is positive.

Mr. Roberts: I agree the bill clarifies, and it is your prerogative and duty to structure judicial discretion to a degree. The question is — and this is where we can enter into endless debate — how much should you intrude into the discretion of the trial courts?

The Chair: Our Library of Parliament staff reminded me that under section 746 of the Criminal Code, parole eligibility in Canada for life sentences — that is for murder — is calculated from the date when the person is arrested or taken into custody. One could say the provision complicates this case even further, but it does relate to what we have been talking about.

Senator Dickson: This question is to Professor Roberts. Later we will hear from Professor Manson. In Professor Manson's presentation, on page 6, it reads:

Virtually every western democratic country, faced with similar issues, is engaged in a robust and challenging debate about sentencing. Except Canada . . . . The truth is we need a serious and comprehensive sentencing debate in Canada . . . .

My question is, from your experience, globally, what is the most current study on sentencing?

Mr. Roberts: In what sense?

Senator Dickson: I assume Professor Manson is looking at sentencing in a macro way. He makes the point that virtually every western democracy has had a wide-ranging debate on sentencing, so studies must have been conducted. What is the most recent and pertinent one?

Mr. Roberts: I think he is referring to common law jurisdictions like England and Wales, which have introduced radical changes to the framework of sentencing, where judges have guidelines and authorities in that jurisdiction, and there are websites where they can access information about guidelines and authorities. However, these changes are not only in common law jurisdictions. South Korea has introduced similar reforms, Israel is contemplating them, South Africa has proposed them and so on.

Senator Dickson: Is Canada forward-thinking? What must be done to make us most current with the leading jurisdictions? Where do we go for the resources?

Mr. Roberts: Professor Manson will say you need to take a more comprehensive, holistic approach, but he has been saying that for years.

The Chair: This is a question to put to Professor Manson, perhaps.

Professor Roberts and Professor Weinrath, we thank you very much. It has been helpful for us and extremely interesting. We could go on putting questions to you for at least another hour, but life is short. These are the frustrations we live with.

We are fortunate now to have three additional learned and interesting witnesses: Professor Allan Manson from Queen's University Faculty of Law; Professor Anthony N. Doob, from the University of Toronto; and Professor Cheryl Webster from the University of Ottawa, Department of Criminology. Professor Manson is a lawyer, and both Professor Doob and Professor Webster are criminologists.

Professor Doob and Professor Webster have a joint presentation. I think Professor Webster is first up. Welcome.

Cheryl Webster, Professor, Department of Criminology University of Ottawa, as an individual: Thank you for inviting Tony Doob and I to present our views on Bill C-25. We have written a single submission that we will present together.

For the purposes of discussing this bill, we make a number of assumptions. First, we assume that whatever other values imprisonment might have, the primary purpose can be considered to be punishment. In cases in which an offender is detained prior to trial, some of that punishment will have occurred before conviction.

Second, we assume that the purpose of this bill is not to increase or decrease the amount of punishment that certain offenders receive. Rather, this bill intends to ensure that time in pre-trial custody should count the same as time in custody after the sentence is imposed.

In other words, we assume that, in terms of the number of days or months that an offender stays in prison, the purpose here is to ensure that there is no advantage or disadvantage, at least in terms of days served, to serving those days prior to sentencing, rather than after sentencing. Rather, the total amount of punishment that an offender receives would be the same, whether this offender spends time in pre-trial detention or not.

Within this context, our presentation examines the amount of credit for time spent in pre-trial detention that most effectively ensures this equality of treatment. We will argue that Bill C-25, as it is currently written, will unfairly disadvantage the vast majority of offenders who have spent time in pre-trial detention.

Indeed, the bill's presumptive one-to-one system of credit for time served will ensure that most offenders who have been detained prior to trial will spend more time in prison than offenders deserving of this same sentence but who did not spend any time in pre-trial detention. This inequality is a direct result of the fact that this bill does not take into account the correctional legislation governing the ways in which prison sentences are actually served in Canada.

To illustrate this claim, let us use a concrete case — an offender sentenced to 90 days in prison. Because this offender's sentence is less than two years, this offender will serve the sentence in a provincial prison. Section 6 of the Prison and Reformatories Act provides that all provincial and territorial prisoners can expect to receive remission of one third of their sentence. This means that almost no provincial prisoners ever serve their full sentence in prison. Rather, they are released at — if not before — the two-thirds point of the sentence.

Assuming that our present offender, sentenced to 90 days in prison, was never detained prior to sentence, the offender would serve, in effect, 60 days in prison. Two thirds of 90 days is 60 days. In other words, because of this automatic remission, each day of the sentence that the offender serves in prison post-conviction counts, in effect, for 1.5 days toward the offender's release. Indeed, 60 days times 1.5 equals the 90-day sentence. Virtually all provincial prisoners serving their sentences post-conviction receive a minimum of 1.5 days credit for each day served.

Let us take this same offender sentenced to 90 days in prison but this time, the offender spends 30 days in pre-trial detention before being sentenced. To ensure that these 30 days of prison served before sentence count exactly the same as they would count had they been served post-sentence, pre-trial detention time must be given the same credit as time spent in prison following sentence.

In other words, each day of this offender's 90-day sentence served in pre-trial detention would also count 1.5 days toward that offender's release. Anything less than a 1.5-to-one credit would result in unequal treatment of those offenders detained before trial and those with no pre-trial detention.

Let me illustrate the arithmetic: An offender sentenced to 90 days in prison who is not detained before trial will serve, in effect, 60 days in prison before being released. One third of this sentence is automatically remitted. This same offender sentenced to 90 days in prison but who serves 30 days in pre-trial detention should also serve only a total of 60 days in prison before being released. If one applies a 1.5 to 1 credit for time served, this offender's 30 days in pre-trial detention would be credited with 45 days toward the total time in prison. As such, the offender would still have 45 days to serve post-sentencing.

As provincial prisoners serve only two thirds of their sentence, this offender would still need to serve 30 days of these remaining 45 days before being released. Indeed, two thirds of 45 days is 30 days. In total, the offender will have served 60 days in prison — 30 days prior to sentencing and 30 days following sentencing — which is exactly the same amount of time in prison that would have been served had the offender not served any pre-trial detention.

However, under Bill C-25 with its presumptive one-to-one credit for time served, this offender would serve more than 60 days. This offender's 30 days in pre-trial detention would be credited as only 30 days toward the total time in prison. As such, the offender would still have 60 days to serve post-sentencing. With automatic remission, this offender would still need to serve 40 days of the remaining 60 days; as two thirds of 60 days is 40 days. This same offender will have served, in total, 70 days in prison: 30 days prior to sentencing and 40 days following sentencing. Simply because the offender served some of the prison time before sentencing, the offender is disadvantaged. The offender would serve unfairly an additional 10 days that the offender would not have served had the offender not spent any time in pre-trial detention.

The same problem emerges with federal prisoners — those sentenced to two years or more. This prisoner population is governed by the Corrections and Conditional Release Act, which regulates the ways in which prisoners in the federal system can be released before the end of sentence. Under this legislation, the vast majority of federal prisoners are released statutorily after serving two thirds of their sentence in penitentiary. Although the legislative mechanism for early release is different, almost all provincial and federal prisoners are released at or before the two-thirds point in their sentence.

As such, each day of an offender's sentence served in a federal penitentiary, like provincial prison, continues to count as 1.5 days toward release. To ensure that any time served in pre-trial detention counts exactly the same, pre-trial detention time must be given the same credit for time spent in penitentiary following sentencing — a minimum of 1.5 days to 1 day.

Strictly from an equity or equivalence perspective, Bill C-25 is clearly problematic. Indeed, for the vast majority of provincial as well as federal prisoners — 99.8 per cent of all prisoners in Canada — the bill's presumptive one-to-one system of credit for time served automatically will defeat its presumed purpose of ensuring that offenders who spend time in pre-trial detention serve the same total amount of time in custody as those who deserve the same sentence but who are not detained prior to being sentenced.

Bill C-25 would enshrine in legislation a logical or arithmetic error for the vast majority of prisoners in Canada, which will unfairly disadvantage those who have spent time in pre-trial detention. Specifically, this presumptive credit will ensure that virtually all offenders who have been detained prior to trial will spend more time in prison than offenders with the same sentence who do not spend any time in pre-trial detention. For almost no offender in Canada serving time in prison or penitentiary following sentencing does one day of a sentence served in prison count, in effect, for only for one day toward release. As such, the proposed one-to-one system of credit should apply to virtually no one.

Rather, the norm for the vast majority of provincial and federal prisoners is to serve a maximum of two thirds of their sentence in prison. To ensure equivalent credit for time served before sentence, as opposed to post-sentence, pre-trial detention must be counted, at minimum, on a 1.5-to-one basis. Further, even a system of 1.5 to-one credit for time served would still create inequality for the relatively small number of prisoners who serve less than two-thirds of their sentence. As such, it should constitute only the presumptive system, whereby greater credit could be attributed to those who are likely to be released on parole before the two thirds point in their sentence.

The Chair: Thank you, Professor Webster.

Anthony N. Doob, Professor, University of Toronto, as an individual: I suggest that Bill C-25 represents a mistaken response to a real problem. Cheryl Webster has described the mistake: The bill does not recognize that almost all offenders serve in prison only a portion of a prison sentence they receive. That mistake ensures that if Bill C-25 becomes law, unfairness will result in the calculation of credit for time served in pre-trial detention. The problem that the bill is meant to address, but does not address, is that sentencing and the administration of sentences in Canada are based on a set of somewhat incoherent principles. We have a sentencing and punishment system in Canada that desperately needs attention. It does not command respect, in part because of its incoherence.

You have a number of ways of responding to the bill before you. I would like to think that your response to this ill-informed legislation would be to modify it so that it reflects the laws of Canada governing the administration of sentences in Canada. This modification could be done easily by making the presumptive credit 1.5 days credit for each day served in pre-trial detention, and leaving other modifications to the judge.

In the long run, the most important thing you can do is to grasp the opportunity to start a truly constructive process of reforming sentences in Canada. We need to begin a public discussion about Canada's sentencing structure.

First, we might want to discuss the purpose of sentencing. You, the Senate of Canada, have relatively recently passed a coherent sentencing code for youth. The Youth Criminal Justice Act has a straightforward statement of the purpose of sentencing. Furthermore, prioritized principles are laid out in the law. Unfortunately, the statement concerning the purpose of sentencing for adults contained in the Criminal Code promises much more than it can deliver. In doing so, it unfairly holds judges responsible for crime.

In 2001, you indicated unambiguously that sentences for youths were to be proportionate to the seriousness of the offence and the offender's respond for that offence. This principle was unencumbered by contradictory promises of other purposes.

In the context of Bill C-25, it is important to note that youth sentences have a lot clearer meaning than do sentences under the Criminal Code. A youth sentenced to six months in custody knows more or less exactly when that individual will be released as soon as the length of sentence is known. Indeed, the judge under the Youth Criminal Justice Act is required to state in open court exactly what a custody and supervision order means.

No judge in Canada can possibly ensure this level of predictability for adult sentences because the meaning of a sentence for an adult is dependent on factors not available to the judge. Furthermore, the principles that govern release from prison are not the same as those that determined prison was the appropriate sanction.

When a sentence of three years of imprisonment for an adult can mean that the offender will spend as little as six months or as much as three years in a secure penitentiary, it is not surprising that members of the public are confused about sentencing and do not believe the law is sensible. Obviously, six months and 36 months are unusual amounts of time to be spent in full custody for a three-year sentence. Does it make sense that in ordinary cases a three-year sentence might mean one year in custody if the offender is paroled, and two years if the offender is not? Said differently, does it make sense to give the shortest period of controlled supervision in the community or none at all after a penitentiary sentence to those offenders deemed by the National Parole Board to be the most dangerous to the community?

The result of our system of administering prison and penitentiary sentences is that it is impossible for judges to give appropriate credit for time served in pre-trial custody for all offenders. To give appropriate credit, the judge would need to predict correctly the release date for prisoners at the time the offender was sentenced.

There are, however, other ways in which the immediate problem of credit for time in pre-trial detention can be solved without adding to the complexity of the sentences. One such proposal was made 20 years ago by the Canadian Sentencing Commission. The proposal involves essentially backdating the start of the sentence to include the number of days in pre-trial detention. Release procedures will operate as they currently do for all prisoners.

The way in which offenders serve sentences can be made much more coherent than it currently is. Making modest changes to the purposes and principles of sentencing is a good first step. Making coherent the manner in which people serve sentences is a good second step. Finally, making changes that make all sentences somewhat more predictable similarly is good policy.

None of the problems that need to be addressed in Canada's sentencing structure relate to sentence severity. None of the most serious problems of our sentencing system presuppose any particular level of imprisonment for Canada. Making sentences harsher or more lenient is not the primary problem that needs to be addressed. Nor should it be the issue in determining how much credit to give for time spent in pre-trial detention.

We all have a legitimate interest in what happens to offenders. I do not suggest that unanimity can be achieved in designing a coherent sentencing structure for Canada. However, as we saw in the debate over sentencing of youths that took place between 1999 and 2002, it is not impossible to create a sentencing structure for Canada that is enormously more coherent than we have at the moment for adults.

I urge you, the Senate of Canada, to do two things with respect to Bill C-25. First, give it a sober second thought, as John A. Macdonald defined your role with respect to legislation. If you do, you will discover that it so seriously contradicts many aspects of the laws that govern punishment in Canada that it should not be made law in its current form. Among other things, it is not consistent with the statement of the provincial ministers of justice in 2008 on this issue.

Second, use the debate on Bill C-25 as an opportunity to open the debate much more broadly on sentencing and punishment in our criminal justice system.

[Translation]

Allan Manson, Professor, Queen's University, Faculty of Law, as an individual: Good morning. Unfortunately, I am not bilingual, so I will be giving my presentation in English.

The Chair: That is why we have interpreters.

Mr. Manson: That's good.

[English]

I do not want to repeat what Professor Weinrath and Professor Roberts said earlier. I certainly adopt the positions of Professor Webster and Professor Doob. I do not want to read the written submission that I circulated, but I will follow that format. I also sent to the committee my article in the Criminal Law Quarterly in 2004 that gives a history of the legislative and jurisprudential developments in this area as well as talks about other jurisdictions.

The short title of this bill is the Truth in Sentencing Act. I am pleased with this opportunity to be truthful about sentencing. I think that is what we should do for a few minutes.

A serious problem of intelligibility exists within the Canadian sentencing system. The issue of pre-sentence credits is neither the source of that problem more a good example of it. Following the comments of Professor Doob, our system is in need of serious scrutiny because there is a lack of intelligibility. It has been produced because we have no coherent and practicable basis in principle upon which to build an effective, fair, just and intelligible sentencing system. Our system has grown historically through a series of small unintegrated changes effected in response to particular perceived goals.

Let me look at Bill C-25. As Professor Roberts said a few minutes ago, what is the problem here? If we look to the remarks of the sponsor of the bill, Minister Nicholson, I submit that it is difficult to discern exactly what mischief this bill is entitled to correct. If the difficulty is that the public does not understand what a sentencing judge has done by taking into account pre-sentence credit, then this problem is a communication problem. It is incumbent upon judges to do a better job of explaining their sentences. Moreover, if statutory help is required, then the proposed section 719(3.3) and the new form of warrant take care of the matter entirely. Nothing else is needed if the problem is a communications one.

Maybe the problem is something else. In his remarks on April 20 this year, Minister Nicholson said when he introduced the bill "but the courts routinely give credit on a two-for-one basis."

Then he said, "In many cases, the courts give credit on a three-to-one basis."

This issue is the enhanced credit issue. Is this the problem that Bill C-25 addresses? If it is, let us be truthful. There are not many cases of enhanced credit. I submit to this committee that there are only a handful of cases per year out of hundreds of thousands of sentences imposed. We sentence about 250,000 offences per year, and about 85,000 of those offences are custodial sentences. I suggest that the cases of enhanced credits are a handful. If there is any evidence to the contrary, I have never seen it, and I would like to.

As many of you know, the seminal case of enhanced credit is the R. v. Kravchov case, which is one of the cases that arose during the jail-guard strike in Toronto in 2002. Last week, I did a Quicklaw search of sentencing cases to see how many referred to Kravchov, which supports and provides the argument for enhanced credit. In seven years, there were 25 cases. I do not suggest there have not been other examples of enhanced credit, but that is 25 QL references to Kravchov in seven years. This finding, I would argue, supports my position that there is only a handful every year.

Mr. Nicholson also noted the concern about growing remand populations. I will not repeat this argument. I think Senator Joyal addressed this issue. If the intention of this bill is to address growing remand, show me how it addresses that situation. I have not seen that intention. In a minute, I will try to explain to you how the bill will increase clog in courts, both at the bail stage and the sentencing stage.

However, in the absence of any evidence and proof of causality between pre-sentence credit and remand populations, we are only taking a real problem and building an empty argument upon it.

Another issue was raised by Minister Nicholson:

The practice of awarding generous credit for pre-sentence custody cannot rest on the foundation of a statutory release and parole system that has itself been subject to strong and impartial criticism and that may, therefore, be significantly changed in the future.

That quote was part of his April 20 remarks.

As Professor Webster and Professor Doob have shown, I think it is important that pre-sentence credit be integrated with the existing parole and release structure. Minister Nicholson was referring obviously to the 2007 report of the Correctional Service of Canada Review Panel, A Roadmap to Strengthening Public Safety. The minister is absolutely correct that this panel recommended the abolition of both statutory release and accelerated parole.

However, I submit that this study is so methodologically flawed and analytically weak that one is tempted to say it is intrinsically biased; it is certainly unreliable. However, the review panel's report is not law. We have a structure, and Bill C-25 will apply to the current legal structure.

Essentially, my position is, do not fiddle with pre-sentence credit unless you are prepared to look at larger questions. I will come back to the larger questions in a minute.

There has been a lot of talk this morning about the second rationale for two-for-one credit: the issue of conditions of confinement. I will not get into that issue. I think it is clear, as the quotation Senator Joyal read to you from Wust shows, that rationale is what persuaded the courts to move from 1.5 credits to two.

The Chair: We have a request from the interpreters that you slow down a little, please. However, enthusiasm is important, and I have to warn you that in 40 minutes, the bells will start ringing, and this committee cannot sit when the Senate is sitting. Please proceed with all deliberate speed.

Mr. Manson: I was sensitive to that fact, chair, and that is why I was speeding up. I will slow down a bit. I will not repeat the arguments of conditions of confinement, but it is those arguments that persuaded the courts to move from a 1.5 credit to two. The 1.5 credit, as my colleagues, Professor Webster and Professor Doob, have shown is essential if you want to create parity. That credit is the legal minimum.

There are real pre-sentence credit custody issues. If you read my submission, you will notice that the working group of the Uniform Law Conference of Canada addressed them last year. I do not mind speaking to this point because I was a member of that working group. You will see on page 3 a list of questions of integrating pre-sentence custody with other mechanisms, such as minimum sentences, conditional sentences, probation orders, delayed parole, long-term offenders, correctional facilities, deportation and parole eligibility for murder.

Different levels of the courts all the way up to the Supreme Court of Canada have looked at some of these issues. The working group concluded that the resolution has been inconsistent. I will not go into the details of that inconsistency. I want only to say that the Uniform Law Conference of Canada passed a resolution in August asking Justice Canada to examine the issues raised by the working group to ensure that post-conviction consequences of pre-sentence credit not be circumvented by a sentence that has taken into account pre-sentence custody credit. These questions are important. This bill does not address, in any way, a single one of these questions.

For that reasons, I do not understand the problem this bill addresses. There are pre-sentence custody problems. This bill does not address them. Now let us look at some of the implications of the bill, if it were to be passed, especially with respect to exacerbating the problem of delay.

First, I submit the proposed subsections 719(3.1) and 719(3.2) undermine the Supreme Court of Canada in Wust, which endorsed the views that, in the ordinary case, two-for-one is entirely appropriate. I think Senator Joyal's quotations showed this situation. That means, at the sentencing stage, if the Crown wants to argue that the case is an extraordinary one where credit should be less, then that is fine. However, that case is extraordinary. If offenders want to argue for enhanced credit, they make their argument. Again, that case is extraordinary. Those cases are the handful of cases I have talked about. In the thousands of others, the credit is two-for-one. Therefore, how long does that take? It takes a few seconds.

If this bill passes, to move from one-to-one credit to 1.5, which is substantial if one is talking about a lot of remand time, offenders must make an argument. They must present evidence relating to the phrase "if the circumstances justify it" and there may even be legal issues as to what circumstances are appropriate.

Necessarily, this justification will expand the vast majority of sentencing hearings. By how much will they be expanded? I cannot predict that situation: ten minutes; fifteen minutes; twenty minutes? Eighty-five thousand people were sentenced to custody last year. If we add up those minutes, we are talking about clogging the system.

Second, let us look at the bail process. This bill proposes a new subsection, subsection 515(9.1). Bill C-25 proposes the new subsection because the intent is to exclude certain people from the ability to apply for the 1.5 credit. The intent is to exclude those in the group who have been detained because of a violation of one of their release conditions. That exclusion makes sense to me. That provision is in Criminal Code subsection 524(4) and that is part of the exclusion.

The intent is also to exclude anyone in respect to whom this new proposed subsection 515(9.1) applies. What is this new provision? It says that judges and justices, at the bail hearing, put on the record any time a person has been "detained in custody primarily because of a previous conviction." I do not know how many of you have observed bail hearings. This provision is not a ground for detention.

We have three grounds. They are set out in Criminal Code subsection 515(10): the primary, secondary and tertiary grounds. I will not give a lecture on these grounds, but everyone around the table who is familiar with the subsection knows this provision is not a ground. Now, the justice or judge at the bail hearings, if asked by the Crown attorney or if alert and on the ball, must first deal with the issue of detention and will then need to go back and say: I have this subsection 515(9.1) problem. Is my decision to detain primarily because of a previous conviction? Can I hear submissions for counsel on that provision because I must put this information in the record so it can be used at the sentencing stage?

Now we have an exacerbation of the bail hearing. I do not know how many bail hearings we have in Canada every year. We now have, in addition to that process, something new and novel that has nothing to do with the grounds for detention. If we talk about clogging the system and creating further delay, this bill does both.

I also point out that the worst bail candidates are not covered by these exclusions because these candidates recognize they will be detained and they consent. Therefore, there is never a subsection 515(9.1) ruling against them.

The larger questions I discuss at pages 6 and 7. There is a basic lack of intelligibility in the Canadian sentencing system for three reasons. We do not have coherent and easily practicable principles that govern the sentencing stage. We have a cafeteria-style set-up in section 718, section 718.1 and section 718.2, which means each judge can choose what they want: I am a vegetarian, I pass on the meat; the person beside me may crave ribs. The sentences in Canada determine whether the sentencing judge is a vegetarian or craves ribs on the day of sentencing.

Second, there is an absence of systematic guidance for trial judges, unlike other countries. Third — this is relevant for today — we have a rift in principle and practices between the bases upon which sentences are imposed and the laws and policies that govern both their implementation and release. I think Senator Nolin touched on this rift earlier when he talked about provincial jurisdiction.

One problem we have in Canada is there is split jurisdiction between the federal government, provinces and territories over many prison issues, sentence implementation issues and release issues. I raised this problem with the Minister of Justice once — I will not tell you who — and he said to me: That was done in 1867. Then he walked away.

No, it was not Irwin Cotler.

Surely, in a country like Canada, we can sit down and try to create a situation of, at least, uniformity of resources. I do not say there are not local and cultural differences, but uniformity of resources so that the resources that apply to sentences and the implementation of sentences are the same, whether we are in Trois Rivières, Trenton, Tofino or Teslin in Yukon.

Senator Dickson asked Professor Roberts about one of the paragraphs in my submission. I suggest that since the report of the Canadian Sentencing Commission in 1987, there has been no serious debate about these larger sentencing issues in this country, unlike in almost every western democracy I know, where people argue about these questions.

I am not taking any position on the issues. I am saying there are important questions of principle, important legal questions, and what do we do? Every year there are a couple of tiny bills totally unrelated to each other dealing with a particular problem, whether real or not — I do not think Bill C-25 is real — and then we end up with a book like this: This is the size of our Criminal Code. The sentencing part is huge and it is unintelligible. We need a sentencing debate in Canada.

Senator Nolin: You have in front of you the levers of going back and trying to understand the guiding principle of sentencing in Canada, and trying to put back some sense into that myriad of all sorts of political influences. Let us go back to Bill C-25, the bill in front of us.

In your paper, on page 4, I want to focus on one thing you alluded to in the subtitle, "The Implications of Bill C-25." In the bottom, you refer to a Charter problem when you say:

. . . one can envisage arguments at the sentencing stage about the legality under the Charter of the distinctions it attempts to draw.

The distinction is between the proposed section 515(9.1) and section 515(10). Can you explain more about this question of the Charter challenge?

Mr. Manson: I can, but it occurred to me only recently. It seems to me if we look at section 7 and the principles of fundamental justice, and also questions of arbitrary detention, we can make an argument that notwithstanding the broad criminal law powers of Parliament, distinctions between categories of people have to be rational and fair. The exclusion in the proposed section 515(9.1) of people in respect of whom there is a record so that the justice said detention was primarily because of a previous conviction, arguably, that section misses the mark.

I do not claim to have this argument fully developed and I cannot give you all the jurisprudence. It misses the mark because, as I said earlier, many of the worst detention candidates will consent. They are not excluded from seeking the 1.5 credit under this bill; but someone in respect of whom there is an order — a record saying, I have detained you and now the Crown has asked, I have gone back and said it is primarily because of a previous conviction — that person is excluded.

Again, the courts would ask, what is the object here? If the object is to exclude those who have been detained because they are the worst remand prisoners, this provision does not accomplish that objective — or if the prisoners represent the worst risk or they do not warrant the extra credit, the provision does not accomplish that objective. The worst people will not be excluded.

I think I could develop other arguments about arbitrariness around this notion that aside from the section 524(4) people who have violated a term of their release and are now detained, the section 515(9.1) people are in this anomalous category. The prisoners are not necessarily the worst. If I was a lawyer, which I used to be, I might try at some point to develop the argument that this exclusion is arbitrary and devoid of rational and fair criteria.

Senator Nolin: When we read paragraph 515(10)(c), which opens a large area of reasons —

Mr. Manson: Very controversial, yes.

Senator Nolin: "Detention is necessary in order to maintain confidence in the administration of justice." For example, individual A, who is in front of me for bail, has been in prison for 10 years, and that fact has influenced me as a justice of the peace when deciding if that person should remain in custody or not. One can argue that issue is dealt with in section 515(10)(c). That is why I question the affirmation in your last sentence. Of course, we can see the Charter challenge coming. I am sure the minister is also aware of that problem.

Mr. Manson: The tertiary ground you described is a good example. Not that many cases are reported on the tertiary ground, but most of them are murder cases. Most of them are not cases of people who have been detained because of a prior conviction, but because of the notoriety of the offence.

Senator Nolin: They are the media cases, the ones that attract people that know nothing about the law but have an opinion.

Mr. Manson: Although it might be a vile, vicious, egregious case, those people are not excluded from seeking 1.5 days credit under this bill. Only the people who have been subject to a ruling under subsection 515(9.1) are excluded, which is another example.

Senator Nolin: The proposed paragraph does not say that they will be. The judge or the justice of the peace will decide whether to be influenced by the fact that the accused had served time prior to sentencing. If that is the case, the judge must list that reason. The law does not pretend to suggest that everyone with prior sentences will be excluded in the process. That distinction is important. If the judge is influenced by that reason, the judge must report it.

Mr. Manson: My point was that under tertiary grounds, many of those people do not have prior records. It is the nature of the offence that produces tertiary ground, which could be vile, vicious and egregious, but they will not be excluded from the ability to apply. It is another example that the trivial may be excluded, and the serious included. That is why I say there might be a Charter argument. I do not think that is the biggest point of flaw in this bill.

Senator Nolin: I pointed out that situation because in a good document — I went through it — it was a possible area where we should have a greater explanation.

Senator Baker: On the same point that Senator Nolin made, I believe you will agree that in a bail hearing, the judge goes through the three grounds upon which the judge must make a determination. Recently, at times, the tertiary ground is not referenced at all. That leaves the first two grounds. That situation is laid out clearly in law, and we have a substantial amount of case law on those two grounds. Suddenly, as you pointed out, along comes a sentence that says, "primarily because of a previous conviction," which, as you say, has nothing to do with the determination of whether someone receives bail.

Do you envision a whole new debate at bail hearings, initiated primarily, I suppose, by the Crown?

Mr. Manson: Yes.

Senator Baker: That debate will lead to a further backing up of cases. Is that correct?

Mr. Manson: That is exactly the point I was making. Further backing up is inevitable, if you pass Bill C-25.

Senator Baker: We would pass something under which a determination will be made, depending upon another determination in which that determination is not even discussed right now.

Mr. Manson: Yes.

Senator Baker: That is an incredible admission. Do you have any thoughts on the words "primarily because of," and making a determination on that ground? The only cases I could find were under the Income Tax Act where the words "primarily because of" are used. The matter is highly complex. How does one determine that something is "primarily because of," if in law one is supposed to deal with three grounds, none of which deals with this primary reason? A whole new thing comes into being.

Mr. Manson: Senator Nolin raised the interpretation of that phrase as, "was my decision influenced by." I should have asked you to respond, Senator Baker, because of your point as well. It does not say "influence," so I am not sure what the phrase means. We are looking at a great deal of litigation for courts to decide whether it means, "on a balance of probabilities"; or is it according to some other standard? It is not a term that we see anywhere in the criminal process.

Senator Baker: One would see a balancing and comparison. One would need to have an analysis of the primary reason.

I want to ask you or another witness about the part dealing with reasons. This proposed legislation commands the court to give reasons. The judge always must give reasons so I do not know why this wording is included. Proposed subsection 719(3.4) states:

Failure to comply with subsection (3.2) or (3.3) does not affect the validity of the sentence imposed by the court.

How will that provision be interpreted? Currently, a court must give reasons. Sudden under this proposed legislation, if no reasons are given by the court, the decision remains valid. I am sorry but there must be provision for appellate review; is that not true?

Mr. Manson: Yes.

Senator Baker: Professor Doob, can you think of any comparison where someone does not have to give reasons for giving a judgement?

Mr. Doob: I was afraid that you might ask that question. The only comparison I can make, and the circumstance is very different, is as follows: Under section 6 of the Youth Criminal Justice Act, the police officer is required to consider whether extra judicial measures are appropriate, but the failure to do so does not invalidate any subsequent decision. That comparison is the closest I can come up with. There would be circumstances where it would be silly to invalidate a decision on the basis of an apparent failure of that kind.

The problem comes down to the difficulty that Bill C-25 creates in ordinary cases. As Professor Webster has pointed out in her presentation, the difficulty is that in 99.8 per cent of the cases 1.5-to-one, or more, is clearly appropriate. It would seem like a silly exercise to any sentencing judge to have to give reasons for going beyond one-to-one. In that circumstance, I could imagine a judge saying, "for the usual reasons," or a judge forgetting to say, "for the usual reasons." If the judge understands grade four arithmetic, the judge will understand that the starting point is one-to-one.

Senator Baker: You are absolutely correct. Senator Wallace, when he mentioned this issue before, neglected to point out that there will be a small percentage of people who will be considered for the 1.5-to-one credit because of those who break a recognizance or other condition of release. As you pointed out, Professor Manson, there is another restriction as to who may be considered.

Professor Webster's presentation was interesting and clear. She ensured that it was firmly implanted in everyone's mind that an injustice is being committed. Professor Angus would say to you that of the two people charged with the same offence, the one not released on bail will more than likely not receive the same sentence as the other who has committed the same offence under the same circumstances. Senator Angus would also say that when someone is refused bail, there is a good reason why, and maybe they should bear the brunt of an additional prejudice against them. Can you to respond to that argument so you do not have to put up with it in a few moments?

The Chair: Senator Angus, do you object to having words put in your mouth?

Senator Angus: I have tenure as professor. Senator Baker has given me this appointment.

The Chair: You are next on the list, so we will listen with interest to the response and then turn to you.

Ms. Webster: In terms of additional prejudice — picking up from what my colleague said in the first session — that the conditions in remand tend to be much harsher than serving time post-conviction, one can make the argument that someone who is detained already is suffering additional harm. That they are being held in custody before they have been proven guilty can also be raised as a particularly delicate issue.

Mr. Manson: If we go back to the genesis of bail reform, Professor Friedland's 1965 work talked about his findings that prisoners denied bail usually served longer sentences because of the prejudice of the remand situation. This includes the inability to be at home, to work and to meet with their lawyer more regularly.

I agree with Professor Webster, but there is another point. The population of remand people are not only those who have been detained. A large number have been granted bail that cannot make it. If they have been granted bail subject to finding one or two sureties, if they cannot find the sureties, or if the sureties are deemed by a justice to be not appropriate, they sit right beside the person who was detained because they cannot make bail.

The remand population is two groups. The population is not only people who are so nasty that they are denied bail.

Senator Baker: However, they cannot be denied bail —

The Chair: Thank you, Senator Baker.

Mr. Doob: I want to add that the starting point of our submission was that a sentence is a sentence. If a person deserves a 60-day sentence for one reason or another, they should serve the same amount of time whether they spend some of it in pre-trial detention or some of it after.

We are trying to equate pre-trial detention time to post-sentence detention time. To do that, one must take into account what a sentence means. The incoherence of the sentencing system in Canada creates this problem because of the complexity of what a sentence of imprisonment means.

It is only made worse by Bill C-25. Obviously, this problem is why we are recommending that you look at sentencing more broadly to have the sentencing system more coherent. Then you might want to look at the issue of credit for pre-trial detention. As we pointed out, there are relatively straightforward ways to deal with that issue. It is simply that Bill C-25 is not one of those ways.

Senator Angus: Chair, I am conscious of the constraints that you mentioned.

The Chair: It is maddening to have these constraints, but we have them.

Senator Angus: All my questions have been asked vicariously. He is the monkey and I am the ventriloquist, it seems.

This discussion is absolutely fascinating, professors, if not the wide-ranging debate that we all agree is necessary. You said that Bill C-25 is a mistaken response to a real problem. You each characterize it in different words — our system of sentencing today is based on incoherent principles, and is unintelligible. I understand you to be saying that the changes made by successive governments since 1987 have been incremental, piecemeal and not coherently packaged as an ensemble of improvements to our system.

I do not think any of us around this table would disagree that there is a need for this debate. However, this study is not the place to have it, unfortunately. I think all of us — Professor Baker included — would love to participate in the debate.

This incremental piece of intended change and improvement in your minds is a wrong piece of legislation. You are saying that the minister and officials from the Department of Justice who were with him yesterday are not putting it to us accurately. Am I right? You disagree with everything Minister Nicholson and the witnesses from the Department of Justice told us yesterday. I have a problem with that view.

Mr. Doob: I was not here yesterday so it is difficult for me to disagree with something I have not heard or read.

I am saying, however, that if you start from the assumption that a day in pre-trial detention should count the same as a day served — not a day of sentence — in post-trial custody, this bill does not do it. In that sense, it adds to the incoherence. I do not know what the minister told you, but the assumption that somehow a two-to-one or a 1.5-to-one credit is automatically a discount is simply wrong arithmetically.

Senator Angus: Given that the system needs more wholesale reform, I take your major criticism of Bill C-25 to be that it does not go far enough. It is only another little piece that, taken alone, tends to confuse things more, and it introduces unfairness into the system.

Mr. Doob: That is correct.

Senator Angus: The minister has another view.

Senator Wallace: As much as Senator Baker pre-empted you, Senator Angus, you have done the same with me. My comments were along the same lines.

This presentation by the three of you was informative and intelligent. As I listened to your presentation, I realized the background, thought and expertise you have in this area. I know you are passionate, and your arguments are well delivered.

On the other side, the bill attempts to improve the existing situation. The bill attempts to bring clarity and more definition or certainty to sentencing principles, albeit in the grand scheme of things, not as extensively as we would like. Requiring the courts to enunciate the reasons for allowing pre-sentence credit is a step forward.

When I listened to your entire presentation, I am left with the impression your concerns are not only in relation to this bill, but in relation to other bills. It is difficult to look at a series of one-off amendments and say with certainty that it will bring real improvement to the system because of the concern that a comprehensive review is not being undertaken. My impression is that because you have that concern — for all the right reasons you see this need for a comprehensive review of this sentencing system — no matter what was brought forward as a one-off amendment, I would hear the same argument.

I realize the arithmetic calculation is well thought out. Correct me if I am wrong, but my impression was that you find it difficult to deal with one-off amendments. You had a problem even with the 2007 commission. It was based on poor logic and we need to go back and revisit the starting base to move forward and make appropriate singular amendments.

Mr. Doob: If I can start with that point, I would disagree. There are places for one-off amendments. Let us imagine a one-off amendment that tries to deal with both the complexity and the incoherence simultaneously, or at least not to make the sentencing more incoherent. One proposal might have been to back-date, in effect, the starting point of the sentence. As the chair of this committee pointed out, that is done, in effect, with respect to parole ineligibility periods for murder. That proposal would make the legislation coherent; people can understand it.

Another part, which we have not mentioned as much — although I believe Professor Manson mentioned it, and certainly does in his written presentation — is that the warrant, which is contained in this bill, seems to be an improvement in the sense that one then has an idea as to what the sentence would have been, in effect, and what the number of days remaining would be.

Making it clear that this offence deserves a sentence of such and such seems to me to be a good idea. Then say that the calculation of this results in something else, so that, if people are concerned about the sentence, they know what they are concerned about. That part of the bill seems to be a good idea.

However, a one-off amendment that simply said that the time spent in pre-trial detention counts toward the release mechanisms under the two federal acts would have clarified, but would have clarified in a different way.

Mr. Manson: I do not agree with your suggestion. For example, if you look at my article in the Criminal Law Quarterly, I talked about four models for addressing this problem. Since 2004 when I wrote that article, I think there may be more models. I also provided a sequenced scheme of legislation of how to address legislation in a way that was coherent both with release mechanisms and other mechanisms in the Criminal Code. What is proposed here does not address any of those other issues.

I agree with Professor Doob that there is a way to deal with pre-sentence custody that is not a whole-scale review of sentencing but only integrates the issue with other mechanisms in the code and with release mechanisms, and I would be satisfied. If the majority of people said, we want to undermine the developed jurisprudence of our courts leading to the Supreme Court of Canada's decision in Wust, if that was Parliament's view, Parliament has its role.

However, you are not doing that. You are taking one tiny part — the arithmetic calculation — and changing that while you are still working within the release and remission scheme that supports Professor Webster's and Professor Doob's argument of 1.5 credit. You are undermining that scheme and the Supreme Court, and you are creating these new issues that will expand bail and sentencing hearings. Additionally, you cannot show us what you are achieving. There is some precision, yes, but you are not addressing the real problem.

I was not here to listen to the minister yesterday, but if there was evidence of the problem of enhanced credit, I have never seen it. The same applies if there was more than anecdotal evidence about manipulation. I accept there are people who have done that manipulation. Out of 85,000 custodial sentences, what is the number of people who have manipulated the credit? I do not know.

Senator Wallace: With your comment, professor, whether Bill C-25 would improve the situation and help to unclog the judicial system, as the minister said, the extent to which it might, I suppose, can be debated. However, you cannot say that there would be no possibility that the bill would aid that situation.

Mr. Manson: It will only aid that situation, subject to the downside, which I think, while speculative, is huge. Like I said, if you start adding 5 minutes or 10 minutes to sentencing hearings when there are 85,000 custodial sentences, that is a lot of time. It will only aid it if you can say a substantial number of people are currently delaying their guilty pleas solely for the two-for-one reason that will not do it for a credit of one or 1.5.

I do not know the answer. I think there is no evidence before us that it is true.

Senator Wallace: Perhaps the experience of the provinces and territories would have to be consistent with that view. Otherwise, they would not have requested Bill C-25 to be enacted. The provinces and territories are at ground level. They have a responsibility for remand facilities. However, again, I think that should be worthy of strong consideration.

Mr. Manson: You realize this area is complicated. There are a lot of interacting provisions. I would want to know that all those people are informed about all those interacting provisions and their implications. Before I give a lot of weight to their view, there could be other things that have produced those views.

The Chair: I think this discussion is beyond the specific wording of the bill. These arguments, though fascinating, are in principle. Both sides have now been well aired.

Senator Joyal: I have two questions. Professor Doob, did you mention in your presentation, or did I hear correctly, the views that the attorneys general have been proposing in relation to sentencing that would be different than the one that is enshrined in this bill? Did I hear you correctly when you referred to that issue?

Mr. Doob: Yes, I do not think it is a perfectly-clearly stated result that came out of the meetings in 2008, but my reading was that the attorneys general were concerned about two-for-one credit. I initially read what they had said as suggesting more that 1.5-to-one should be the norm rather than two-to-one. Basically, it is a relatively small difference.

I did not read their statement from the fall of 2008, I believe, as suggesting that one-to-one should be the norm. I think the difficulty at the moment is that one-to-one is the norm. There are arguments, obviously, for leaving discretion. There are strong arguments for leaving discretion, given the nature of release mechanisms. However, I read their statements as wanting a legislated norm of something like 1.5-to-one.

Senator Joyal: My other question is in relation to Professor Webster's presentation. Again, I refer you to Wust. Paragraphs 42 and 43 have, in my opinion, established a principle that a system cannot lead to different sentences for the same crime in the same circumstances. The court has exactly followed that principle. It is stated clearly:

If this Court were to conclude that the discretion provided by s. 719(3) to consider pre-sentencing custody was not applicable to the mandatory minimum sentence of s. 344(a), it is certain that unjust sentences would result. First, courts would be placed in the difficult situation of delivering unequal treatment to similarly situated offenders. . . .

They refer to McDonald, of course.

It seems to me that this provision will be argued in court quickly — it will be challenged in court quickly — because, by equating one-to-one, you create an inequality of treatment. That, of course, would be immediately against section 7 of the Canadian Charter of Rights and Freedoms.

When we have to reconcile that provision with the rationality of the sentencing system, we cannot make only a dollar-for-dollar argument that Senator Angus has tried to propose. That is, offenders were in prison before, and they are in prison after, so it is similar.

The "prison after" gives offenders access to a capacity of improvement of their condition that they are denied under the pre-trial detention.

It seems to me that, if two offenders are placed in the same situation, one cannot be unfairly treated in comparison with the other. I do not know how the justice department, in preparing that bill, has tried to reconcile that aspect of Wust. However, it seems to me that the court, in many cases, has restated that fundamental principle, and that this bill would be challenged quickly by those who were the object of it, especially if subsection 719(3) includes the proposed subsection 719(3.1). Even with justification or special circumstances, it could provide for distortion to the system, in my opinion.

Ms. Webster: In terms of the current proposed presumptive one-for-one credit, we have several problems. First, the one-to-one would apply to virtually no offender because for virtually all offenders, each day served in prison, post-conviction, counts 1.5 days toward their release. Therefore, 1.5 must be the presumptive minimum.

The way the bill is established, the first clause is irrelevant for everyone. The second clause, which in a certain sense is supposed to be the exceptional case, actually applies to the vast majority of all prisoners. If it is capped at 1.5, the problem is that it will not permit appropriate or equivalent credit for those offenders, both provincial and federal, who receive parole, so they are released before the two-thirds point in their sentence.

For either federal or provincial prisoners, they can be released as early as after one third of their sentence, at which point every day of their sentence served in penitentiary or prison would count three to one. Therefore you have an additional problem. Capping it at 1.5, you have no remedy for those people who are unfairly disadvantaged but in the opposite direction.

To add to the problem, if you want to consider any sort of compensation for poor conditions, harsher conditions in remand — the fact they have no programming, education or treatment, et cetera — again, you have no provision.

Senator Joyal: No leverage.

Ms. Webster: There is no remedy for that situation, either.

Senator Joyal: That is what this bill creates; it removes the capacity to establish a rational comparative basis with the system, once offenders are serving the sentence. Aside from that situation, it removes the compensation for the harsher conditions that the accused are living under in the pre-trial conditions.

The Chair: I will ask you to conclude in 30 seconds.

Mr. Manson: If you are right that Wust articulates the principles of fundamental justice about equality of sentencing — and I think you are — this bill, by undermining that decision, violates section 7 of the Charter, which the state can do only if they can justify it under section 1. Justifying means demonstrably justifying as reasonable conditions prescribed by law in a free democratic society.

When the minister was here yesterday, did he demonstrably justify or produce evidence that you ought to violate principles of fundamental justice? I somehow doubt that.

The Chair: Professor Doob, Professor Webster and Professor Manson, we are extremely grateful. As a number of senators have said, it has been interesting, intellectually stimulating and practically challenging for us to hear from you.

I will ask senators to stay put for a brief, one-minute, in-camera meeting. I ask everyone not entitled to attend an in-camera meeting of this committee to leave the room, please.

(The committee continued in camera.)

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