Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 13 - Evidence, September 16, 2009

OTTAWA, Wednesday, September 16, 2009

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-25, An Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody), met this day at 4:09 p.m. to give consideration to the bill.

Senator Joan Fraser (Chair) in the chair.


The Chair: Honourable senators, welcome, after the summer recess, to this first meeting in the fall session of the Standing Senate Committee on Legal and Constitutional Affairs.


Today, we are beginning our study of Bill C-25, An Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody).

This bill was passed by the House of Commons on June 8, 2009. And it is now before this senate committee for rigorous examination.

It is a great pleasure to welcome the Minister of Justice and Attorney General of Canada, the Honourable Rob Nicholson, P.C.


Minister Nicholson, welcome back to this committee, your second home, I think. We are, as always, very pleased to have you with us. I believe you do have an opening statement.

I should note that Mr. Nicholson is accompanied by Matthias Villetorte, Counsel, Criminal Law Policy Section, and Catherine Kane — another return witness whom we are always glad to see — Acting Director General and Senior General Counsel, Criminal Law Policy Section. Welcome to all of you.

Hon. Rob Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada: I am pleased to once again meet with the committee on the occasion to speak of Bill C-25, an Act to amend the Criminal Code, which limits credit for time served in pre-sentencing custody.

As you know, our government is committed to tackling crime and to making our streets safer. This commitment included restricting the credit for pretrial custody for persons denied bail because of their criminal record or having violated bail. The Criminal Code allows a court to take into account the time that an offender has spent in custody awaiting sentencing in determining the sentence to be imposed. However, the Criminal Code does not provide further guidance on the calculation of this credit.

The Supreme Court recognized, in Regina v. Wust in 2000, that although there is no mechanical formula for determining pre-sentencing custody, a two-for-one credit ratio could be appropriate to reflect the conditions of pre-sentence custody. However, the Supreme Court stated that a different credit ratio could be applied.

In the majority of cases, courts give two days credit for every day spent in pre-sentencing custody, also commonly referred to as remand, and on some occasions three days for every day in remand.

The government is of the view that the practice of awarding generous pre-sentencing credit puts the administration of justice into disrepute. It leaves the public with the impression that offenders are getting more lenient sentences than they deserve and creates an incentive for those accused to abuse the court process by choosing to stay in remand custody in the hope of getting a shorter term of imprisonment based on credit for time served.

This is exactly what happened in the case of R. v. Sooch, 2008 ABCA 186. In that case, the offender, who was sentenced for aggravated assault, failed to apply for bail in order to accumulate remand time and obtain a bigger discount on the sentence ultimately imposed. The Alberta Court of Appeal stated that deliberately choosing not to apply for bail where bail is a viable possibility militates against awarding enhanced credit for the time spent in pre-disposition custody.

In recent years, there have been an increasing number of cases where courts have awarded less than two-to-one. For example, in circumstances where accused had access to rehabilitation programs, were unlikely to obtain parole at one-third of their sentence because of their criminal record, or because the time spent in remand was a result of a breach of bail conditions.

There is no doubt that across Canada court cases are more complex. They take longer, resulting in some lengthy stays in remand. Many inmates are now spending more time in remand than in sentenced custody. The latest data indicate that the number of adults held in pre-sentence custody surpasses the number of adults being held in provincial-territorial sentenced custody. Overall, remand represents 54 per cent of admissions to provincial or territorial facilities.

There are a number of reasons for the growth in the remand population, but the practice of awarding double credit is important. Provincial attorneys general and correctional ministers are in strong support of limiting credit for time served while awaiting trial and sentencing in order to reduce the growing size of their remand population.

In fact, I recently received a letter from the Attorney General of Manitoba, Dave Chomiak, requesting me to advise your committee that western attorneys general are in complete support of this particular piece of legislation.

For all the reasons I have mentioned, the current practice of routinely awarding extra credit must be adjusted. The amendments proposed in Bill C-25 would provide courts with greater guidance in sentencing by limiting the credit for pre-sentence custody to one-to-one in most cases. That is, the offender will receive one day credit for every day spent in remand. If the offender is held for six months in remand, then six months will be credited to the sentence.

However, where circumstances justify, the courts will be able to award up to 1.5 days for every day spent in pre-sentence custody. Courts will have the ability to consider, on a case-by-case basis, whether the credit to be awarded for the time spent in pre-sentence custody should be more than one-to-one. In such cases the court will be required, of course, to provide an explanation of those justifying circumstances.

We would expect the application of a credit ratio of 1.5 days for every day spent in remand would be considered where the conditions of detention are very poor or when the trial is unduly delayed by factors not attributable to the accused.

However, where accused are remanded for having violated bail conditions or because of their criminal record, the credit will be limited to one day for every day spent in pre-sentence custody. As a result of this initiative, more offenders would now have a federal sentence, which, of course, is two years or more.

Explanations for the length of a sentence are usually provided in open court at the time of the sentencing. However, judges are not specifically required to explain the basis for their decision to award pre-sentence credit. As a result, they do not always do so, and this deprives the public of information about the extent and nature of the pre-sentence detention. It leaves them in the dark about why that detention should allow a convicted criminal to receive a lower sentence than the court would otherwise impose. This is the reason why Bill C-25 also proposes to require courts to note the sentence that would have been imposed without the credit, the amount of credit awarded, as well as the actual sentence imposed. This requirement would result in greater certainty and consistency, and I believe will improve public confidence in the administration of justice.

Madam Chair, Canadians have told us loud and clear they would like to see more truth in sentencing by bringing the practice of awarding double time credit for pre-trial custody to an end. The government has listened to their concerns. I hope the members of this committee will listen to and act upon those concerns as well.

The Chair: Thank you very much, indeed, minister. We go now to a question period.


Senator Nolin: I would like to give my time to Senator Wallace.


Senator Wallace: It is very good to have you here today. Thank you for appearing, Minister Nicholson.

The comment I would make is that as parliamentarians, we have the responsibility to create the law. The judiciary is there to interpret the law. All too often we hear criticism that the laws we make are so broad and vague that effectively it is the courts that end up making law. I think there is concern among the public that it can lead to a lack of confidence in our legal system.

When I read Bill C-25, I see it as providing additional clarity on what the intention of the parliamentarians is in regard to the pre-sentencing detention credit, but it is also necessary to balance that against the discretion of the courts so that there is, when circumstances justify, the ability to find that balance so that it is not simply a cut-and-dried system.

Mr. Nicholson, please offer your comments in relation to finding that balance and what role it has played in the preparation of this bill.

Mr. Nicholson: We have a constitutional responsibility to provide guidance, to initiate legislation. That is our responsibility. Of course, it is the responsibility of the courts to interpret and apply the laws that are passed by Parliament. We give guidance on a regular basis. One of the best known examples is the penalties with respect to murder in this country. If it is first degree murder, it is life. That is a decision of Parliament. Parliament then went further, and again, I was not part of the government, but I do agree with the legislation that said you would be ineligible for parole for 25 years if you commit a murder.

We are giving guidance, and we give guidance all the time. I was involved with over 30 pieces of legislation, changes to the Criminal Code in the 1980s and the early 1990s. On each occasion, Parliament was called upon to set, in most cases, what the new maximum sentence would be. Indeed, I remember on one occasion having one of my colleagues ask me why there was only a five-year maximum. Why not let the courts decide? Maybe a judge would think it should be seven years or nine years. Why not put a higher maximum? I said that we try to make changes to the Criminal Code to bring it in line with other provisions so that it is not out of whack in terms of the seriousness of the crimes. As I say, a previous government — not one in which I was a member — decided, for instance, that you would be ineligible for parole in 25 years. Again, that is within the purview of Parliament.

With respect to this bill, we are giving that guidance. As pointed out by the Supreme Court of Canada, there is nothing specific in the Criminal Code on this matter of pretrial credit. We are giving that guidance. At the same time, we have built in some discretion as well for judges. In circumstances where they believe it is warranted, a judge could give some extra credit to an individual. The basic rule that we are legislating today is one-for-one, and that is very reasonable.

Senator Wallace: You say Bill C-25 was prepared with an eye or view to other legislation and want to be consistent with the approaches taken. Comparing the circumstances concerning Bill C-25 with other common law jurisdictions around the world, how would we fit in relation to those jurisdictions, such as Australia or New Zealand?

Catherine Kane, Acting Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: We looked at what other countries do with respect to the issue of credit for time served. Obviously, there is an acknowledgment that credit for time served could be given, but we did not find any examples of more than one-to-one.

Senator Campbell: Welcome, Minister Nicholson. I also consulted with the Attorney General Michael de Jong of British Columbia and he concurs with this bill. I agree with it in principle.

With regard to proposed subsection (3.2), "The court shall give reasons for any credit granted . . . ." would it be possible to put parameters on that? The three that I had in mind are as follows: a court may not take into account any time spent in custody by the person as a result of an offence unless the court is satisfied it is justified after considering the gravity of the offence; the degree of responsibility of the person; and, third, any aggravating or mitigating factors relevant to the commission of the offence.

I am suggesting those parameters because it would show the discretion being given to the court, and it would also put the court in the position of a uniform response in every case. Rather than wondering why this decision was made, there are three parameters that they should address.

What are your thoughts are on that?

Mr. Nicholson: It seems to me that those would all be valid considerations, and, presumably, they would go into the actual sentencing of the individual. We have left it broad, indicating that the court shall give reasons for any credit granted and shall cause those reasons to be stated for the record. I am somewhat reluctant to put too many parameters when we are asking someone to exercise discretion. That being said, it is within certain parameters, as you know. I set out those exceptions in my opening remarks. Again, it covers what will happen, and it is reasonable to leave it as it is.

Senator Campbell: I am concerned that proposed subsection (3.4) says, basically, that if the judge does not comply with subsections (3.2) and (3.3), the sentence still stands. We are in the position again of not knowing the judge's reasoning behind this. Is it a legal requirement that it be in there? Somehow it is just a loophole to me that allows us to get away from that.

Ms. Kane: We want to make it clear that, if for some reason of inadvertence or time constraint, it is not set out, you still have a valid sentence because we do not want the offender not to have a sentence that the correctional authorities can then administer. We expect there will be compliance with this because all attorneys general are keen on these amendments. We know that over the course of time it will become the practice of judges, and they will be encouraged to do so. In the early days, we want the sentences to remain valid sentences, despite some, as I say, inadvertence.

We have also included a new form, a warrant of committal, which will direct attention to exactly what should be set out. It will be rather difficult to avoid filling in all the blanks in terms of the sentence imposed, the credit given, the ratio imposed and what the sentence is considered to be, which we also sometimes refer to as the "residual sentence."

Mr. Nicholson: In answer to your question, we have put that in other pieces of legislation as well. If some technical requirement is missed, someone could not say that he or she did not really get a twenty-year sentence and was not sentenced at all because someone did not dot the "i" or cross the "t" at some point. That is why we put a provision like that into the bill.

Senator Baker: On that last point, a judge must give reasons for every decision for appellate review reasons. You have to know what the reasons are in order for appeals to take place. I have never seen nothing to this extent of saying that failure to comply with giving reasons affects the validity of the sentence imposed by the court. I am wondering what the effect of that would be, in a general sense, in that a judge may not have to give reasons for, perhaps, a significant part of the sentencing, which is how much credit is granted. I will leave that with you, or perhaps you want to answer it.

Mr. Nicholson, you have been getting too easy a time here with these senators. Normally, you are used to a much more combative atmosphere.

Senator Angus: This is just good legislation. It does not bother him.

Senator Baker: I will ask you the question on everyone's mind. I do not think, minister, you will find any professor of law or any lawyers representing either the Crown or the defence who would agree with this legislation. I do not think we will see them before this committee. They did not appear before the House of Commons committee.

However, you are right that every minister of the provinces will tell you that he or she wants this legislation. How would you answer the criticism that someone would direct that the provincial ministers of justice and attorneys general of the provinces are the only ones affected by this legislation because it is their institutions that have been the subject of a great deal of criticism for the standards they have in their detention centres and lock-ups? It is not federal institutions that are criticized but provincial institutions. In practically every court case, you have an argument as to what the standard should be — should it be two-for-one or three-for-one — because of the negative conditions affecting people in these holding cells.

Of course, they will support this legislation to avoid being the subject of adjudication by a judge saying that this violates the UN Charter on the treatment of prisoners and therefore the judge will give the accused three-to-one or four-to-one. How would you answer that criticism?

Mr. Nicholson: It sounds like you are directing criticism towards provincial attorneys general. I have had the honour of presiding over at least three federal-provincial-territorial meetings of justice ministers, and I have been very impressed by their dedication right across the board. I say that quite apart from their particular political affiliation.

In my opening comments, I mentioned Dave Chomiak. He and I do not share the same political party, but nonetheless, I know of his commitment. I can tell you, the previous Attorney General of British Columbia, Mr. Oppal spoke to me very clearly on this subject.

What I think they are concerned about is this had become routine. For a two-for-one credit, there was no reference to wherever they were going. If they wanted three-to-one credit, they would get into the argument that they do not like the detention centre — it does not matter where it is located, but the arguments are made sometimes for that. They say the routine awarding of this overcrowds our system because it provides a bonus.

I will give you an example. The former Attorney General of British Columbia, Mr. Oppal, knew of a case where the accused did not want to apply for bail because he wanted to rack up points, like credits, for time served in remand. Senator, you and other lawyers would know, and I remember from the early 1980s, believe me, that the first thing your client wants is bail, to get out. If you did not get bail, you wanted to make sure that court day was as soon as possible. They see this as something that should be changed. It crosses all political spectrums. The last time I met with them, it was about a year ago, they were unanimous asking us to move forward. They say this will help the administration of justice.

I have been here before. We have talked about access to the courts and clogging up the courts. There have been a couple of excellent reports. Under the Constitution, they have the administration of justice. That is their responsibility. They say, if you want to have better access, unclog the courts; pass this bill. I have to respect that, and I am sure you do as well.

Senator Baker: As far as the bail is concerned, what these justice ministers mean is that someone does not apply for bail review. You automatically get a bail hearing. Someone would not apply for bail review unless the trial judge has made an error in law or unless the circumstances have dramatically changed. That is written into the Criminal Code. I do not see that.

It obviously served a purpose. Three-for-one was not uncommon. These were adjudicated decisions because of the conditions these people were being held in. There is nothing replacing that. You have shut the door; it is not 1.5-to-one. The bill says anyone who has broken a recognizance cannot be considered or anyone who, because of their record, is in there cannot be considered. The 1.5 is now restricted to about 1 per cent of the jail population.

What can fill the void? This was in the Criminal Code, and it said, in very simple language, a judge can take into account time spent on remand. There is nothing now filling the gap. You have shut the door on this, and where do we go from here?

Mr. Nicholson: I do not agree we have shut the door on it completely, senator. We certainly have restricted it, but you yourself pointed out the 1.5 possibility, and again what we are doing is not out of line with other countries. I think Senator Wallace asked what do other Commonwealth countries do, and Ms. Kane pointed out we do not have any examples of people giving two-, three-, five- or ten-to-one, or whatever credit you want to talk about. It is generally one-to-one, if you in fact get credit for time served. I think this is very reasonable. In large part, we are ensuring that people continue to have confidence in the criminal justice system. This is an important part of what we are doing.

What could happen is someone will be convicted of a horrendous crime and the judge says, "I will give you a five-year sentence, but you have been in there for 18 or 20 months so you will only serve a year." Many people are concerned about that, and I actually agree with that concern. This is why we are coming forward with this legislation.

Senator Milne: Greetings, minister. I am glad to confront you once again. I understand that in the committee in the other place the witnesses who appeared there really did not think this legislation would be effective. I ask you if maybe a more effective approach would be to do something about the shortage of prosecutors and judges or the underfunding of the legal aid system.

Mr. Nicholson: Again, the vast majority of all offences done in this country are done by provincial attorneys of the Crown. I do not appoint these attorneys, and the administration of justice is within the provincial jurisdiction. As you know, I believe I have appeared before this committee increasing the number of Superior Court judges, the judges appointed by the federal government.

Getting back to the comments I made to Senator Baker, on at least two, if not three, of the federal, provincial and territorial justice ministers' meetings that I have chaired, they unanimously said this would help the administration of justice in their province or territory. You can imagine how it is very difficult in this country to get everyone to agree on something, but I can tell you, they agree on this. They say, "Please move forward on this. It will help us unclog the courts and will be a big step to ensuring our resources are used more effectively."

This costs money for provincial and territorial governments; I do not have to tell you that. This is a major expense, and so they are asking us to move forward on it. I respect that and believe them when they tell me that. They have the responsibility for the administration of justice, and I think they are quite sincere in their concern.

Senator Milne: I guess the fact of the matter is that, under this law, they will spend more time in jail which results in increased costs at the end of the day for everyone.

My second question is that I believe in the other place the Canadian Council of Criminal Defence Lawyers pointed out that, for example in the Yukon, women are often held in the same facilities with men and have less access to any kind of programs or rehabilitative services than the men. I congratulate you on the fact that you have built some flexibility into it up to 1.5 days for each day spent in pretrial custody. Do you think this will disadvantage women?

Mr. Nicholson: They tell me from the provincial and territorial level that they will actually have more resources and more money available if their remand centres are not clogged by people receiving this bonus. All of them tell me the same thing. If they have fewer people in remand because of the elimination of the double credit for time served, they said they are actually in a better position to house people, to provide them with the kind of facilities that they want.

I say let us get this passed, and I take them at their word for this. They say this will be a major improvement.

Senator Milne: The jails will become clogged.

What about Aboriginal people? Apparently, the number of Aboriginal adults admitted to remand increased by 23 per cent between 2001 and 2007, while there was a 14 per cent increase in the total remand population. Will this disadvantage Aboriginal people? We are in the business of giving guidance, but we are building in that discretion for the judges. Again, I think this is a very reasonable response to the challenge.

Senator Nolin: Minister, what are the exact terms of the agreement you had with your provincial colleagues at the two meetings in 2006 and 2007? Is it 1.5 days for each day or is it one-to-one?

Mr. Nicholson: Thank you for that, senator. You say "agreement." This was something they urged on me and my colleague, the Minister of Public Safety, on a couple of occasions in 2007 and 2008. There was somewhat of a split in the sense that some of them wanted it straight one-for-one and some wanted it to be 1.5-to-one. We have made the general rule one-for-one and, in exceptional rules, 1.5-for-one. It is a bit of a compromise of all of the suggestions I received. It was not an agreement in the sense that at the end of the conference we all put our signatures to it. These are the comments and suggestions that were made to me and to the Minister of Public Safety in the last couple of meetings we had.

Senator Milne: Returning to my second question, would some of these special circumstances include the conditions of the jail, such as for women in the Yukon?

Mr. Nicholson: Of course. That would be a very good example. Again, I am not familiar with the facilities in the Yukon, but the situation you put to me is an example of things that would be taken into consideration, I am sure.

Senator Angus: Good afternoon, minister. I want to compliment you on this legislation and ask you a couple of questions following on those of Senator Nolin in the area of "truth," which is sort of a nickname we are giving this proposed legislation.

It seems to me that we tend to underestimate the confusion in the minds of the public about sentencing and about predictability, even among experienced professionals. I find trying to understand sentencing very similar to trying to understand how air fares are calculated. I was on the board of Air Canada.

Mr. Nicholson: I don't want to go there, senator.

Senator Angus: I was on the board for 19 years, and I never could understand it. I have been a lawyer for 47 years and I cannot predict sentencing. I cannot find any homogeneity by comparing offences. It seems to me that this is absolutely key.

My question is about demystifying sentencing and more predictability. Is that the main driving force for this bill, or is more that people in custody pre-sentence tend to be more dangerous offenders and we are trying to get at them?

Mr. Nicholson: It is a couple of things, senator. Certainly, a component of the bill is to ensure that people have confidence in the criminal justice system. In the fact situations I talked about, it hurts the administration of justice when people who have committed horrendous crimes get double or triple credit for time served prior to the disposition of their case. The bill is referred to as the truth in sentencing act. Yes, that is part of.

I have a great deal of sympathy for provincial attorneys general who tell me that this is clogging up their courts. In other appearances before committees, I have been challenged about what I am doing to ensure that the courts have sufficient resources. On at least a couple of occasions all provincial attorneys generals have said to me that they are responsible for the administration of justice under the Constitution of this country and that this would be a huge help to them in unclogging the courts and ensuring that resources are available for other needs within the justice system. I believe that to be true.

Again, that is not just coming from attorneys general who are of the same political persuasion; it comes from the entire political spectrum across the country and they all ask me to please move forward. I believe them when they tell me that and I believe that this will have a beneficial effect.

Senator Angus: It seems that this will involve a substantial increase in the federal costs of administration of justice, and dealing with convicts and so forth. Have you an idea of the incremental costs involved?

Mr. Nicholson: My colleague, the Minister of Public Safety, has assured me that we have sufficient capacity for this measure. I rely on him and have complete confidence in that statement. We do not do the analysis ourselves. It is a matter for Public Safety and the minister has assured me that we have the capacity.

The Chair: We have invited the Minister of Public Safety to appear precisely because we knew these issues would arise.

Senator Watt: I will try to narrow down my questions, even though I have a number of areas of concern in addition to what is in this bill.

Have the Aboriginal communities been consulted on this matter?

Mr. Nicholson: Again, senator, I have not conducted coast-to-coast hearings. I have consulted with all my provincial attorneys general and territorial leaders, and they are the ones who have made representations on this bill. We have put this out to the public in our consultations with them and indicated that this is something we would be prepared to move on.

The Chair: Minister, could you ask your officials to give us the results of those international comparisons, to the extent that you have them. I would include in that if it were possible for us to see differences in the fundamental system. For example, as I understand it, either Australia or New Zealand takes pre-sentencing custody into account not at the time of sentencing but at the time of parole, which arguably is an interesting system, but arguably also might have some effect on the way we are trying to assess the system. That is just a request. Any information that we could have we would find quite useful, obviously.

Mr. Nicholson: We would be glad to provide any information we have on that, Madam Chair.

The Chair: As to my question, I just do not follow the argument about unclogging the courts. I find myself wondering whether we might not find more court time being taken up with things like bail hearings. How do we get from A to B on this one?

Mr. Nicholson: Provincial attorneys general tell me that the individual who is being detained prior to the disposition of his or her case, knowing that he or she will, in the routine, get double credit for time served, is in no hurry to have his or her case before the court. This in turn increases the number of adjournments.

In the early 1980s, when there was no advantage to being detained, an individual might have one or two adjournments, and then either set the matter for trial or set the matter for a plea. They tell me that many more adjournments are the routine. I appreciate that not all of them are to cash in on double or triple credit for time served but are for a number of other reasons. Changes have taken place in the criminal justice system over the years, but all of them tell me the same thing: It taxes the resources at the provincial level.

Senator Baker: You have made a very good point, Madam Chair, about the clogging of the provincial institutions. The point the minister is making is that it will unclog the provincial institutions but clog up the federal institutions because with a sentence beyond two years, you are into a federal institution.

The Chair: I was asking more about the courts than the institutions. The minister answered on the courts.

Senator Baker: Not really, Madam Chair. My second round question will be, then, on the courts.

Minister Nicholson, our courts have rules of procedure. They have case management. You need to have in your Charter arguments in 15 days in advance of the trial date. Surely, we are not criticizing people for Charter arguments, for violations of the Canadian Charter of Rights and Freedoms, and classifying that as an intentional delay of proceedings in our courts. Surely, that is not what we are saying.

What other delay would take place that would delay a trial? Perhaps your officials can identify some of the methods used by these defence lawyers to hold up a trial if it is not for infringement of the Canadian Charter of Rights and Freedoms.

The rules of procedure are provincially instituted. We have rules for our courts in each province, relatively similar but different in many respects. Surely, if there is a clogging up of the system, then it is the court rules we have to get at and not in any way jeopardize the system of justice, as some people consider the government to be doing in this case.

Mr. Nicholson: I do not think people are thinking that we are in any way jeopardizing the system of justice. Again, it is rare that you can get such unanimity at all different levels in support of what we are trying to do.

Getting back to your question, there are many reasons for delays. As I indicated to you, it is unanimous among provincial and territorial attorneys general that one of the reasons is the norm of giving double credit for time served. That certainly is one of them.

On the whole question of efficiency, you are speaking to the converted. As you know, I had one efficiency bill that took 10 difficult years. I have it now, and we have other initiatives that we want to take. I know they are being taken at the provincial level. They take it very seriously, and I have to take it seriously as well. When they said to me, "Minister, this is what you have to do to help us unclog our courts." There is unanimity and I have to take that seriously. Again, I have never had any doubt whatsoever about their sincerity on this issue.

Senator Baker: In other words, you will have more people pleading guilty.

Mr. Nicholson: Not necessarily. Individuals who believe they are innocent will want to have that opportunity. We do not want to artificially skewer the process by having this double credit for time served. It is a bad idea. We have to move on this.

Senator Wallace: Minister Nicholson, all of the issues around sentencing and how they impact the justice system and courts and detention centers are obviously critically important, but for the general public, I believe the overriding purpose in sentencing is to provide better protection, the best protection we can give to our society and our people. I am wondering what comments you might make about that in regards to Bill C-25.

Mr. Nicholson: This is part of a larger set of initiatives. I am convinced and believe that the proposed initiatives are in the best interest of the public in protecting individuals and standing up for victims and law-abiding Canadians. I have no doubt whatsoever that we are on the right track.

There are a number of items, and this is certainly one of them, that I hope will give an increased measure of confidence in the criminal justice system. This is one of the hallmarks or absolute essentials in our political system for the success of our society. I say to people that if you want to see whether a society is successful anywhere in the world, find out about their respect for the rule of law. Where the rule of law is strong, you will have a successful society. We have to be vigilant to ensure that people respect our political institutions and that they respect our judicial system. We have to move on anything we can do to help increase people's perception and confidence in the criminal justice system. This is certainly one of those pieces of legislation, and it has the added benefit with respect to provincial resources and the clogging of our courts and the general support that I have received at the other levels of government that have the constitutional responsibility for the administration of justice.

The Chair: Minister, thank you very much, and thank you Ms. Kane and Mr. Villetorte. We are grateful to you. It is always instructive to have you appear before us.

Lynn Barr-Telford, Director, Canadian Centre for Justice Statistics, Statistics Canada: Thank you for the opportunity to present before the committee regarding Bill C-25. Statistics Canada does not take a position on the amendments to limit credit for time spent in pre-sentencing custody. Presently, we do not have data on how judges are applying credit for time served to their sentencing decisions and therefore, we cannot speak specifically to these decisions.

Bill C-25 would amend the Criminal Code to require that information on the granting of credit for time spent in remand be stated in the court record.

In the presentation today, we use data from our Correctional Services program to show trends in remand in adult corrections and use data from our Adult Criminal Court Survey to show changing sentencing patterns and the changing nature of court cases in Canada. All data sources used are clearly indicated on the slides, as are any pertinent data notes. As well, we have included supplemental information at the end of the deck for the consideration of the committee. In particular, you will find tables that correspond to the charts used in the presentation. We have also distributed a copy of recent Juristat articles.

My colleagues, Mr. Grimes and Ms. Kong, are here to help answer any questions. I ask you to turn to page 2 in the slide presentation.

Since the early 1990s, more adults have been admitted to remand to await trial or sentencing than to provincial-territorial sentencing custody. Provincial-territorial institutions house those in remand and those sentenced to two years less a day. In 2007-08, there were over 128,800 adults admitted to remand, compared to about 59,400 admissions to provincial-territorial sentence custody. From 1998-99 to 2007-08, admissions to remand have gone up by 37 per cent. In contrast, admissions to provincial-territorial sentence custody have gone down by 19 per cent. Admissions to remand have gone up since 1998-99 in all jurisdictions for which we have trend data, except in Saskatchewan. Saskatchewan has bail supervision programs, which may account for a decrease in the use of remand in that province. In contrast, admissions to provincial-territorial sentence custody have gone down since 1998-99 in all jurisdictions for which we have data, except in New Brunswick and British Columbia.

The next slide, at page 3, shows that on any given day in Canada, there are more adults in provincial-territorial custody awaiting trial or sentencing than there are adults serving a sentence. The previous slide showed admissions to remand. Admissions represent the flow of people into Correctional Services. They are collected each time an adult enters the institution or community supervision. This slide shows average counts of inmates in custody on a given day, which provides us a snapshot of the daily correctional population. On any given day in 2007-08 there were about 12,800 adults in remand compared to about 9,500 in provincial-territorial sentence custody. The number of adults in remand on any given day is four times what it was in 1983-84 and has doubled since 1998-99. From 1998-99 to 2007-08, the number of adults in remand has grown in all jurisdictions. At the same time, the number of adults in sentence custody is down 27 per cent from 1983-84 and down 21 per cent from 10 years earlier. Average daily counts for sentence custody have decreased in all jurisdictions in the last 10 years, except in Prince Edward Island and Quebec.

On the next slide, at page 4, we can see that across the country in 2007-08, adults in remand accounted for a greater proportion of adults in provincial-territorial custody than a decade ago. Of note, in 2007-08, 69 per cent of adults in custody in Manitoba were in remand. In Ontario and Alberta, adults in remand accounted for just over 6 in 10 adults in custody.

The next graph shows that over the past decade, the amount of time spent in remand has increased. Between 1998-99 and 2007-08, the proportion of adults who spent one week or less in remand decreased from 59 per cent to 53 per cent. The increasing length of time being spent in remand is a key factor that has influenced the growing number of adults in remand.

In contrast, the length of time served in provincial-territorial sentence custody has gone down. Slide 6 shows that in 1998-99 about 19 per cent of those released from sentence custody had served one to seven days. A decade later, this was up to 28 per cent. We have seen that the median time spent in provincial-territorial sentence custody was down largely in Ontario, Manitoba, British Columbia and Yukon.

While we do not have data on how judges apply credit for time served, we have seen changes in sentencing patterns in adult criminal courts. These changes may be a reflection of what we have just seen in the corrections data: an increasing use of remand, increasing time spent in remand and decreasing time served in provincial-territorial sentence custody.

The graph at page 7 shows a decrease in the custody sentence links imposed upon conviction in adult criminal courts. The most dramatic change in sentences has occurred around sentences of one month or less. The proportion of cases sentenced to one month or less began increasing in 1999-2000. Since 2000-01, more than 50 per cent sentenced to custody have received sentences of one month or less. At the same time, the proportion of cases receiving a sentence of greater than one month to 12 months is down. The proportion of cases receiving longer sentences of greater than 12 months to less than 24 months and 24 months or more has remained almost constant since 1997-98.

On the next slide, you can see that the shift toward shorter sentences is seen in particular where a property offence was the most serious charge in a convicted case. The proportion of property cases receiving a custodial sentence of one month or less has been higher than the proportion receiving the longer sentence of more than one month to 12 months since 2002-03.

On the next slide, we see that convicted violent cases sentenced to custody continued to be more likely to receive the longer sentence of more than one month to 12 months than they are to receive the shorter sentence of one month or less. However, the gap has narrowed since 1999-2000, suggesting a trend toward shorter sentence lengths. Although not shown in this particular chart, while the length of custodial sentences has decreased overall, we have seen that the use of custody as a sanction has remained relatively stable.

To recap, so far we have seen that the use of remand is up and that the length of time spent in remand is also up. At the same time, admissions to sentence custody have declined, and the length of custodial sentences being imposed by the courts has decreased.

The Criminal Code specifies the reasons for which an individual can be held in remand. They may be held in remand if it is shown there is a flight risk, if they are deemed to be a danger to themselves or others and to maintain confidence in the administration of justice.

There are many factors that could be influencing the increased use of remand and the lengthening stays in remand. We cannot say for sure what underlies these trends. Various factors are likely at play and may include such things as changes in laws governing sentencing and remand, factors related to the accused, changes in crime rates, and longer court case processing times, among others.

What we can look at are the types of offenses for which individuals are admitted to remand for jurisdictions where we have data, and we can see if any of these types of offenses are appearing more often before the courts. We can also look to see if there have been any changes in the processing of adult criminal court cases.

On the slide on page 10 we see that almost one-third of adults were admitted to remand for a crime against the person, about one-quarter were admitted for a property offence, and another one-quarter for an administration of justice offence. Administration of justice offenses include bail violations, breach of probation, fail to appear, escape custody, obstruct peace officer, and prisoner unlawfully at large.

On the next slide, you can see that among the jurisdictions where we have data, 13 offence types accounted for 70 per cent of the admissions to remand in 2007-08. These are the most serious offences for which the individual was sent to remand. Bail violations and breach of probation together accounted for almost 20 per cent of admissions.

From the corrections data, we have seen that almost 80 per cent of people held in remand are there because of a violent, property or administration of justice violation. From our courts data, we can see how many completed court cases contain these types of violations and whether there have been any changes over time.

On slide 12, we see that a large proportion of adult criminal court cases have characteristics consistent with those in remand. In 2006-07, 32 per cent of cases had at least one property charge, 32 per cent had at least one violent charge and 33 per cent had an administration of justice charge. Most noticeable on the slide on page 12 is the increasing proportion of completed cases with administration of justice charges. While not shown on the chart, policing data have shown a large increase in incidents of fail to comply with an order.

As a further example of the changes in administration of justice cases in adult criminal court, we can look at changes in cases for offenses under Criminal Code section 145. These are offenses that relate to the failure of the accused to comply with an undertaking. These offenses are directly pertinent to the proposed legislation. Bill C-25 limits credit for time served at a ratio of one-to-one for those who breach their conditions of release on bail.

You can see on slide 13 that both the number of cases and the proportion of total case volume represented by these offenses are increasing. The number of adults with at least one of these offenses has increased from about 48,000 to about 58,000, or by 20 per cent.

We have also seen a change in the overall nature of court cases being completed in adult criminal courts, and these are summarized on page 14. The data indicate the cases coming through the courts do not look the same as they did a decade ago. While the number of completed cases completed in adult criminal courts has declined, the number of charges within cases has increased, multiple charge cases are growing and the time taken to process cases is up.

We cannot directly tie changes in the nature of court cases to the trends we have seen in remand over the last decade. Increasing case complexity and longer court case processing time are among several factors that may play a role in the trends we have seen in remand.

Thus far, we have seen increasing use of remand, increases in time spent in remand, decreasing custodial sentence lengths and a change in the nature of adult court cases. For a select number of jurisdictions, we can also look at what happens to individuals once released from remand; that is, their status within 24 hours after release.

If you turn to the table on slide 15, you will see that 3 per cent of those released from remand were then admitted to federal custody, 30 per cent to provincial territorial custody and 21 per cent to community supervision. For all the jurisdictions shown on this table, for a notable proportion of releases, there was no further supervision by Correctional Services Canada immediately after release.

There are many reasons for why this might be so. These could be adults who were either released, for example, on unsupervised bail, found not guilty, had charges stayed, withdrawn or dismissed, or were released due to time served in remand. In our data, the reason for release is not collected. As you can see in the table, however, for those whose involvement with corrections ended after release from remand, the median time spent in remand was much shorter than it was for those who were released into either custody or community supervision programs.

Our final slide in the presentation, on page 16, presents a theoretical picture of how admissions to sentence custody by sentence length might be impacted by changing the credit for time spent in remand. These are not actual data but a simple illustration based on assumptions and using data from selected jurisdictions. As we have indicated, we do not have actual data on the amount of credit given by the courts for the time spent in remand.

The first set of bars— in bright blue — shows the number of admissions to sentenced custody by the length of sentence for those who went into custody directly after serving time in remand. If we were to assume that all of these individuals were given a credit of two-for-one for the time they spent in remand, then we can estimate what the sentence length might have been under different credits and calculate the number of admissions.

This slide, then, shows a theoretical shift in the number of adults admitted to sentenced custody by the length of sentence under these different scenarios. Under these assumptions, we see a shift to longer custody sentences. All else being equal, in a one-to-one scenario, the number of admissions to sentences of one month or less would have decreased by 47 per cent, while the number of admissions to sentences of greater than one month to three months would have increased the most, by 66 per cent. The number admitted to federal custody would have increased the least, by 11 per cent. About 1 per cent of those who were currently in provincial-territorial custody under assumed present practices would have moved into federal custody.

For those who spent time in remand and were admitted to federal custody in 2007-08, it is estimated that their sentence would have increased by 176 days, which is a little over five months.

In summary, what we have seen in the presentation has been an increased use of remand in Canada, longer times being spent in remand and there has been a shift to shorter sentence lengths in adult criminal courts.

Senator Nolin: In the last paragraph of your summary, on page 12 of the Juristat article, entitled "Remand in Adult Corrections and Sentencing Patterns," you draw a similar parallel to the one you just made in your concluding remarks.

Can you explain why that is, or are you just here to give us some numbers and let us conclude what those numbers and the fluctuation of those numbers really mean? I want to know if you can tell us, what is beyond those numbers.

Ms. Barr-Telford: Let us start with the fact that the data shows an increase in the number of adults in remand in Canada.

Senator Nolin: Are you saying there is a parallel?

Ms. Barr-Telford: This is a product of the increased use of remand as well as the increased length of stay in remand. There are a number of factors that we point to both in the presentation and in the article that may underlie the increased use of remand as well as the increased length of stay.

Among those factors could be changes in sentencing legislation, changes in the use, legislation around remand and changes in the types of offences before the courts. For example, we looked at changes in the administration of justice offences. We also point to other factors that may be related to this in the article. A number of factors are lengthening court case processing times. A multitude of factors could be at play underlying the increase use of remand and the lengthening stays in remand.

Senator Nolin: The minister is drawing some conclusions that the sentencing calculation has an effect on the remand period.

Ms. Barr-Telford: Our court information does not have exact data on the decisions made by judges with respect to credit for time served nor the rationale or reasons underlying those particular decisions.

We do have an analysis of how sentencing patterns in our courts have changed over the same period where we have seen these different trends in remand. We have seen our adult criminal courts shift towards shorter sentence lengths. A few of the slides show an increase in sentences of one month or less.

We draw parallels with respect to trends within remand and the adult criminal courts. We do not have the actual sentencing decisions from the judges making any direct connection difficult to draw. We can only talk about the trends we see in both data sets.

Senator Nolin: Let me ask the question differently. Imagine that judges in Canada do not have the capacity to calculate a multiplying factor for the time spent in pre-sentencing. Will that affect the length of the sentence?

Ms. Barr-Telford: I invite you to look at the slide on page 16. This may provide the information you are seeking.

This is a theoretical picture of how admissions might be affected by changing the credit for time spent in remand. It is not based an actual data. The first bar on the chart refers to admissions to sentence custody for those who spent time in remand. If we make an assumption that credit for time served was awarded at a ratio of two-to-one for everyone, we can see in the graph the shift in the custody sentence lengths for the various scenarios. The next line shows the shift for a 1.5-to-one ratio and the third looks at a one-to-one ratio.

For example, in the one-to-one scenario, the number of admissions to sentences of one month or less would have gone down by 47 per cent. The largest increases under these assumptions, everything else being equal —

Senator Nolin: On very short sentences.

Ms. Barr-Telford: For the greater than one to three months, you can see the illustration.

Senator Nolin: However, for federal sentences, we see almost no change.

Ms. Barr-Telford: Based on the assumptions and all else being equal under these scenarios, the number admitted to federal custody would have increased by 11 per cent. One per cent of those in provincial-territorial sentence custody — assuming current practices — would have been admitted to federal custody.

Senator Joyal: That is the pressure in the system.

Senator Campbell: Where are British Columbia, New Brunswick and Manitoba in these statistics? It says eight jurisdictions. I do not know about New Brunswick, but certainly B.C. and Manitoba have significant populations in jail. What is the reason for those provinces not being included in these statistics?

Craig Grimes, Senior Analyst, Courts Program, Canadian Centre for Justice Statistics, Statistics Canada: We are trying to show a trend line. Those jurisdictions have not been reporting to the criminal courts survey since the beginning of that time period. British Columbia and New Brunswick starting reporting in 2001-02 and Manitoba began in 2004-05. To maintain a trend line that you could analyze, we had to control the jurisdictions that have consistently reported.

The Chair: Would it be possible for us to see what is available for the provinces not included in your long-term trend line, but their more recent numbers?

Mr. Grimes: It is possible to produce a five-year trend for 11 jurisdictions.

The Chair: That would be very interesting if you could provide it.

Mr. Grimes: I can prepare those charts and supplementary tables to provide those numbers for the court data and provide them to the clerk.

The Chair: Thank you. Of course we want it the day before yesterday. We are very grateful.

Senator Watt: Is Statistics Canada keeping separate records of what is happening in the Aboriginal community?

Rebecca Kong, Chief, Correctional Services Section, Canadian Centre for Justice Statistics, Statistics Canada: In terms of data on Aboriginal people being admitted to remand?

Senator Watt: What is happening in the penitentiaries?

Ms. Kong: We collect Aboriginal identity in corrections data. In 2005-06, we looked at characteristics of those admitted to remand; a higher proportion was Aboriginal.

Senator Watt: How long are Aboriginal detainees spending in pre-trial custody?

Ms. Kong: I do not have that data with me, but we could run it. We do not have it for all jurisdictions. We have it for Newfoundland, New Brunswick, Nova Scotia, Ontario and Saskatchewan.

Senator Watt: There is nothing from Quebec, Nunavut and the Northwest Territories according to the information you have provided here today.

Ms. Kong: No, I am sorry, we do not. They are not reporting to the detailed survey. I can put together some supplemental tables on what we have on that topic. Grimes.

Senator Watt: What percentage of Aboriginal detainees are serving reduced sentences because of the credit for pre-sentence custody compared to the general public? Have you any information on that percentage?

Ms. Barr-Telford: Specifically on the amount of time that was awarded for pre-sentence custody?

Senator Watt: Yes.

Ms. Barr-Telford: No, we do not. We do not have that information in the courts database. The decision on the amount of time that was provided for pre-sentence custody is not provided currently.

Senator Watt: Will you have some of that information available to us?

Ms. Barr-Telford: With respect to being able to gather the reasons for decisions, et cetera?

Senator Watt: Yes, if we had that information we would have a better handle on what is happening in the Aboriginal community.

Ms. Barr-Telford: One of the aspects of Bill C-25 is the requirement to specify the types of information stated on the court record. That would be a first step in being able to have that type of information available. Presently it is unknown even to us the extent of information that would be available within the court's records. However, Bill C-25 would require certain elements to be recorded.

Mr. Grimes: We have included Aboriginal status in our specifications for the survey on court information. We are unable to collect it from any of the justice information systems across the country because they are not retaining it in their systems. Until they collect that information, it will be impossible for us to provide it. We have provided the mechanism, but we are still waiting for our justice partners.

Senator Watt: You are waiting for the information.

Mr. Grimes: That is correct.

Senator Baker: I have one general question that I will preface by saying what an excellent job the witnesses have done on the information that they have provided.

I am interested in finding out what approximate percentage of those people on remand are not convicted and not sentenced. In other words, how many are found innocent, how many had their charges stayed, how many had their charges dropped — judicial stay or just the Crown dropped the charges. What is the number of people in these cells who are not found guilty of anything? Is there any way that I can figure out that number?

Ms. Barr-Telford: We cannot provide you with that precise number. The type of information around the decisions and the link to remand and the reasons for that is not currently available within the records. What we can do, and what you will see at the end of your presentation packages, is provide some general information on conviction rates across the country, conviction rates by offence types and so forth, generally speaking. However, precisely linking it to the remand population is something we cannot do at this time.

Senator Baker: When you appeared before committee the last time, I think we discussed assaults on individuals. The chart showed that of the total number charged, 81 per cent were convicted of those charges that were identified on the chart. In other words, 19 per cent of the people who were charged were not convicted of anything.

I am thinking about the number of people in jails who are not convicted, your charts on charges versus the numbers convicted, and I do not know if I can stretch that to say that 19 per cent of the people on remand are never sentenced.

Ms. Barr-Telford: We cannot make that precise direct connection. What we can do, and what Mr. Grimes has with him, for example, is information on conviction rates by offence type, conviction rates overall and change over time.

We have some of that information with us today, and we have some other information available should that be of interest to the committee.

Senator Baker: Does that figure of 19 per cent of people in jails not convicted ring a bell with you, as statisticians?

Mr. Grimes: Overall for cases before adult criminal court, 65 per cent are convicted, found guilty; 30 per cent stayed, withdrawn, dismissed or discharged; and the remainder are acquitted or otherwise disposed.

Senator Baker: You said 30 per cent are stayed by the Crown — the charges are dropped — or receive a judicial stay, which is in the Charter. In other words, they never go through to conviction. That is an astronomical figure. Only 65 per cent are found guilty of the offence.

Mr. Grimes: It has been very stable over the last 10 years as well — 65 per cent is a consistent number. Within the stays and withdrawals would be included diversion programs and alternative measures as well.

Senator Baker: The diversion programs are programs in which someone, say under this Controlled Drugs and Substances Act, would go into an institution or such. If they finish their course there, the sentence would be a conditional or unconditional sentence. We do not have any of these courts in Eastern Canada; you have them in Western Canada.

Senator Campbell: The West has a higher civilization.

Senator Baker: That did not make it to the record, by the way. That is alarming, is it not — 35 per cent of the people charged are not convicted of any crime at all?

The Chair: I do not know; I would find it more alarming if 100 per cent were convicted, if you see what I mean.

Senator Baker: That is the other side of it.

Senator Angus: Sixty-five per cent are convicted.

Senator Baker: That is amazing, so reasonable grounds to believe are not very reasonable.

Senator Milne: They are off by 35 per cent.

On page 14 of your presentation, you discuss the last decade and the 10 per cent decline in the number of completed cases, while the number of charges has increased by 10 per cent. Multiple charge cases are increasing and have risen to 61 per cent of completed cases.

You say they take about one and a half times longer to complete than a single charge case. Have you made any correlation between the increase in the number of charges and the length of time spent in remand?

Mr. Grimes: The reason we have not done that is the number we are seeing in remand is from a completely different survey. In the data from the court survey, we do not have the information on individuals in remand, so doing that type of connection has not been completed. There is a study that is under way, but we do not have the data right now to answer that question.

Senator Milne: You do not have the data. Do you have the intuition?

Ms. Barr-Telford: We speak to data.

Senator Milne: Then speaking to data, perhaps you can explain the chart on page 26. In every single year, there are more guilty cases than there are a proportion of completed cases. How can a person be guilty unless a case is completed?

Mr. Grimes: The bars show the number of guilty cases, and the line is showing the proportion of total cases. In 2006-07, the 194,000 cases represent 65 per cent of total cases.

Senator Milne: Of total cases, not of guilty cases. Thank you.

The Chair: I take it "guilty" then means not necessarily convicted? Oh, it does; it is found guilty. Thank you.

Senator Joyal: First, I would like to restate my appreciation of your work. It is important that you are told that because I know it is hard to do what you do but you do it well and we appreciate it.

In looking at chart 16, I will try to calculate the cost of this bill. If we take the average cost of a day in a provincial or territorial prison and the average cost of a day in a federal penitentiary and multiply each increase by the length of time, we would have an approximate figure of the impact of this bill. Am I correct?

Ms. Barr-Telford: The only cost information that we have from the corrections program is the average cost per day per inmate.

Senator Joyal: What are the costs for provincial, territorial and federal penitentiaries?

Ms. Barr-Telford: I believe we have that with us.

Ms. Kong: I brought the data for 2005-06 with me. In 1992-93 constant dollars for provincial-territorial institutions, the average daily expenditure was $112, and for federal institutions, it was $204.

Senator Joyal: Are those numbers the cost per day?

Senator Baker: Those are 1992 figures.

Ms. Kong: They are 2005-06, but we standardize constant dollars, 1992-93.

Senator Joyal: Does my formula work? Suppose I am a federal minister responsible for the federal penitentiaries, and I want to know the increase of population that I will have to serve as some are presently under provincial and territorial prisons. I know there will be an increase because of the two-for-one credit. Therefore, I will have an influx of new prisoners, and I will have some in my own prison who will stay longer. In other words, I will have to absorb those additional costs in my prison budget.

I am trying to include the various elements of the equation to understand the cost of this bill.

Ms. Barr-Telford: We have made certain assumptions. Under any kind of exercise where you are trying to estimate change, it is very important to be aware of the assumptions. This assumes that a two-for-one credit would have been given to everyone who had served time in remand and subsequently sentenced to custody. We do not have the actual data, for example, to know those particular decisions. It is very important to understand the assumptions that one makes around this kind of theoretical exercise.

Senator Joyal: The previous witness told us it was routine.

Ms. Barr-Telford: It shows the shift to longer custody sentences and provides some information on the shift in the number of admissions from provincial or territorial custody to federal custody. Our cost information does not include the entire realm of potential costs that may be associated with such a change, as you can appreciate. It is a limited and narrow cost figure. It is very important that you understand the assumptions underlying the calculation in any work like that.

Senator Joyal: Of course, but by taking the number of the prison population in the two types of prisons, one could have an approximation, an average of X million dollars that would represent the provincial, territorial or the federal level.

Ms. Barr-Telford: The other point that I would draw your attention to is the coverage of this particular data. There are jurisdictions that are not included. That is another important factor in making that kind of calculation. With the available information, and the available assumptions that we can make, this is the only kind of theoretical notion that we could provide to committee. It is limited in its coverage; it is not national coverage, and it is limited by the assumptions that we have made. In doing any kind of calculation, those would be the assumptions.

Senator Joyal: How many prisoners are in the federal penitentiary, and how many are in provincial or territorial institutions, as of last year? Do you have those statistics?

Ms. Barr-Telford: We do have that information. We do have a daily count.

Ms. Kong: There were 13,304 prisoners in federal prisons. For the provincial-territorial prisons, the number is 36,330 minus the federal prisoners.

Senator Joyal: The number is approximately 23,330. There is enough data to ask the Minister of Public Safety for an evaluation of the impact of this bill. There is enough data there to figure out an average figure of the increase in this budget or the provincial budget that could be at stake with this bill.

Ms. Barr-Telford: It is difficult for me respond on behalf of the Department of Public Safety in that regard.

Senator Joyal: I am saying that with that kind of information, one can figure out an average of the impact of the bill.

Ms. Barr-Telford: One could certainly make some assumptions and work within those assumptions.

Senator Joyal: On chart 14, you mention that the average time to process cases from first court appearance to final decision was up 47 per cent, from 168 days to 247 days.

Do you have any statistical information on the elements that have concurred with that increase of the length of time that it takes to process an accusation?

Ms. Barr-Telford: We do have some information around the types of factors that are associated with longer case processing times. We have information that we can provide to the committee on the types of factors that have been associated with longer case processing times, for example, whether there is a preliminary inquiry or a bench warrant associated with a case. We have also looked at case processing times by offence type. We know some cases take longer to process and some types of cases take less time to process. That is information we do have, and we could certainly provide it to the committee.

Senator Joyal: Do you see a relationship between that increase and the statistics that you provide us on page 2 about the fact that the term in remand has increased substantially in the last 10 years?

Ms. Barr-Telford: As I have said, a range of factors may be underlying both the increase in the use as well as the increase in those lengthening stays. The increase in court complexity, the number of charges in a case, the multiple-charge cases, and the increasing time to process a case are among some of the possible factors that may be driving these kinds of trends. However, there are others: changes in legislation around remand in sentencing, for example, any change in characteristics in the accused; the change in the nature of a case that comes before the courts; changing offence types; and, the change in the administration of justice offences. A range of factors may be at play and these are two that may be at play.

The Chair: Any information you can give us would be very useful for us, at the outside, two weeks from today, or, preferably, two weeks from yesterday.

Ms. Barr-Telford: Some of that information is available now. We will get it to you as soon as we can.

Senator Nolin: During that same period, we have amended the Criminal Code and the procedure to shorten the time of a trial. The intent was to shorten that period. I am sure you have the dates when we changed the Criminal Code. Can you overlap the information on the data that you will give us so we can see the results of those amendments that we have adopted over the years? Do you understand what I mean?

Ms. Barr-Telford: I believe I do. We will see to what extent we can. You mentioned legislative change, for example. We know in the late 1990s there was a change to remand.

Senator Nolin: We did not have in mind an increase of 47 per cent when we amended the Criminal Code. We had quite the opposite in mind.

Senator Wallace: Ms. Barr-Telford, this question is a follow-up to Senator Joyal's question and your response about other information you might have. We all might have different thoughts about the effect of the two-for-one credit and the effect it has on the length of remand and the numbers that are in remand custody.

In the additional information, do you have any comparisons by category of offence, the average time that the accused have taken to enter pleas and to make their election as to choice of trial?

Finally, would information be available on a comparison over time of how many accused that have been in remand custody ended up pleading guilty and dispensed with a trial?

I realize what conclusions one can draw from that, and there could be debate, but I think it would be helpful information for our considerations.

Ms. Barr-Telford: On the last question you had asked about the link between remand and court decision, as Mr. Grimes pointed out, these are two separate databases. One is a correctional database that has information on individuals who are admitted or are being housed in remand, and the court's database has information on cases and case decisions. We do not currently have the capacity to link those two data sources together to see that possible link.

Also, we do not currently have information on the amount of time credited, the reasons for time credited and so forth. That type of information is requested under Bill C-25 to be included in the court record. We just do not have a direct connection for that kind of information.

Senator Wallace: To clarify, I am not looking for reasons; I am looking for data on the average length of time that accused have taken by category of offence. I am looking for information on how long it took to enter a plea and how long it took to make their election.

Over time, what has the trend been? Have they extended? We all may have different opinions as to why that may happen, but it may be interesting if that statistical information existed.

Mr. Grimes: As a result of the way information is collected and stored, it is only possible for us to identify the final plea. A plea is retained against the individual or the case, so when the plea is first entered or there is a change in plea, that information is overwritten in some jurisdictions, so it is not possible to prepare that type of information.

On pleas, approximately 90 per cent of all guilty cases had a guilty plea. When there is a guilty plea, the elapsed times are very short. The elapsed time for a case with a guilty plea is 95 days, but if a case goes to trial and there is an acquittal, it is 267 days. If we see one and it is a guilty plea, it is usually very short.

I can produce information on the final election, but I cannot fix it in time very well. We can identify some of those types of procedural events. Elections and type of plea are ones that we are continually trying to improve so that we can fix them in time. It has come up in the past and been identified as something that our research partners want to know about with respect to justice effectiveness.

Senator Wallace: To the extent you have data along those lines that might be useful, we would appreciate receiving it and we will see how adequate it is.

Ms. Barr-Telford: The one piece of information that we do have from our corrections information is offence type, the most serious offence for which an individual has been remanded, and the amount of time spent in remand, if that is helpful.

Senator Wallace: That would be helpful.

Ms. Barr-Telford: We can provide that.

Senator Dickson: I have a specific interest in drug offences. What specific information can you provide on remand and sentencing with regard to drug offences? Yesterday, in another committee, we received some shocking information about offences like trafficking. I am very interested in how drug offences are being dealt with.

The Chair: That would be very interesting.

Senator Nolin: We can track it on the next bill.

Senator Milne: I would like to know if you have collected statistics on how many men versus women are in remand, how many men versus women are serving full sentences, and how many women are serving both remand and full sentences in male correctional facilities, if you have that information.

The Chair: Ms. Barr-Telford, Ms. Kong and Mr. Grimes, thank you very much. It is always fascinating when you appear before us. We are very grateful for the wonderful work you do from which we benefit.

Ms. Barr-Telford: Thank you to the committee for having us.

The Chair: I will ask each of our new witnesses to dispense with the formalities and go straight to the core of the arguments you wish to make. The committee will assume that you are glad to be here and that you represent your associations, et cetera.

Jamie Chaffe, President, Canadian Association of Crown Counsel: In preparation for these submissions, each provincial and federal Crown attorneys association was canvassed about what they felt the impact of Bill C-25 would be on their day-to-day, practical prosecutions. The perspective we hope to bring to this committee is that of a front-line prosecutor and the impact of the legislation as best as we can predict.

Generally, it was recognized that the development of enhanced credit for pretrial custody at the stage of sentencing developed from factors directly attributable to remand or pretrial custody centres, which were under-resourced. The principle of enhanced credit for pretrial custody reflects that, ordinarily, accused persons in pretrial custody may be held in custodial environments that cause undue hardship to inmates and where there is an absence or reduced rehabilitative programming. It is important that we recognize Bill C-25 does nothing to address these fundamental foundations of the problem.

That being said, our association and the associations across the country have tried to analyze the practical impact in five areas. The first area is the incentive to plead guilty. It is the CACC's position that Bill C-25 would likely reduce the incentive for the accused to attempt to build credit by delaying his or her trial. For those who intend to plead guilty, for those facing an overwhelming Crown case, Bill C-25 may result in these guilty pleas occurring at an earlier stage of the proceedings.

Perhaps the most important thing for front-line prosecutors would be the impact on the workload, and our association would like to comment on two areas. The first is the frequency and duration of bail hearings.

The CACC is of the view that Bill C-25 would likely increase both the frequently and duration of judicial interim release hearings. There are two reasons for this. First, the reduction in credit given for pretrial custody would generally create a disincentive for an accused person to consent to detention or waive a right to a bail hearing. Second, if the court orders the detention of an accused primarily because of a previous conviction, Bill C-25 would require that the judicial officers note this fact in his or her reasons for the detention order. Where the reason for detaining the accused is primarily because of a previous conviction, the accused will not be eligible for the enhanced credit beyond the one-to-one ratio. Therefore, we anticipate that defence counsel can reasonably be expected to seek reasons at bail hearings that would make their clients eligible for enhanced credit.

Bill C-25 would result in this issue, which is essentially a sentencing issue, being fully litigated at the bail hearing stage. This will have substantial impacts on the workload in our bail courts. It will require a substantial increase in the capacity of bail courts and preparation time for counsel, both Crown and defence. For those cases that do not proceed to trial or proceed to trial and acquittal, the time that the bail court engages in the determination of this sentencing issue will represent a dead loss to the capacity of the criminal justice system. It has been well recognized by the courts that our bail courts are already overburdened, and a significant addition to resources would have to be added to support the amendments in Bill C-25.

The third area, also resource sensitive, is the impact on plea negotiations and trial rate. As discussed, Bill C-25, we anticipate, will reduce the incentive for an accused to delay his or her trial date in order to build credit. That seems clear. All jurisdictions are of the view that the reduction of this incentive will accelerate the decision of the accused either to plead guilty or to set an early trial date. Whether or not it will lead to more trials or more guilty pleas is a matter of some regional debate.

In many jurisdictions, there is a concern that Bill C-25, as with other recent Criminal Code amendments, which have enshrined new offenses and have introduced new mandatory minimum sentences and new procedures for dangerous offender designations, will lead to a significantly increased trial rate and fewer guilty pleas. If that is so, there will be a substantial increase in the workload and a corresponding need to increase the capacity of the criminal justice system if any of these amendments are to be effective.

Some jurisdictions are of the view that Bill C-25 will lead to more guilty pleas, particularly in circumstances where the Crown case against the accused is overwhelming, and that guilty plea will come sooner in the trial process. In jurisdictions that have workloads that are already overcapacity, where there is a significant delay between the date of charge and detention and the date of trial, Bill C-25 may well result in a necessary adjustment of sentencing incentives. In these overburdened jurisdictions, Crown prosecutors and pretrial judges may well need to offer lower sentences to compensate for the change in credit for pretrial credit in order that we can plea bargain cases out of the trial stream and save our limited court capacity for the most serious cases.

In jurisdictions where in-custody matters are set for trial soon after charges are laid, Bill C-25 may result in more trials as well, as the incentive to plead guilty created by the enhanced credit for pretrial custody is reduced. While this may be a desirable outcome, the pressures on the Crown and the courts in those circumstances will be greatly enhanced to bring more cases to trial and bring them to trial sooner.

There will be a particular impact on accused in the far North. This is recognized by most jurisdictions that have itinerant courts that fly in and out of the far North in largely Aboriginal communities. Many jurisdictions in Canada's far North face serious challenges of having limited criminal justice infrastructure and very few, virtually none, have local remand facilities. For the accused in these communities, detention-awaiting trial occurs in urban centres, which are hundreds of kilometers away from their community, in towns and cities where often the dominant culture is completely different in terms of language and culture. In most cases, due to the limited resources of the court and the infrequent sittings of the court, these accused will spend more time in pretrial custody than those that face the same charges in the South.

It is acknowledged that Bill C-25 would significantly decrease the discretion of a judicial officer or a quasi-judicial officer to adequately reflect these extreme conditions, effectively taking away the discretion of a judge to deal with it. With respect to extreme circumstances, it would seem that some discretion remaining with judges is quite important.

Finally, with respect to the victims and the public's comprehension of credit given on sentence for pretrial custody, and these comments are referred specifically to the proposal at subsection (3.3), Bill C-25 would appear to foster a clear public understanding within the sentencing regime, statistically and otherwise. The public would enjoy a better explanation of the impact of pretrial custody on the ultimate sentence, and greater transparency and comprehension of the sentencing process would likely be a result. I believe we heard from the last presenters that we need to know the statistics on how pretrial credit is used.

Essentially, those are the comments from the Canadian Association of Crown Counsel.

Mark A. Lapowich, Representative, Canadian Council of Criminal Defence Lawyers: Thank you for asking us to dispense with the formalities. I am happy to do so, with one exception, if I may. On behalf of the Canadian Council of Criminal Defence Lawyers, I would like to acknowledge specifically the presence here today of Mr. Jamie Chaffe on behalf of the Canadian Association of Crown Counsel. His voice was suggested by William Trudell, Chair of the CCCDL when this matter was being considered before the House of Commons Standing Committee on Justice and Human Rights. We welcome the Crown's perspective on this proposed legislation.

The CCCDL has a great deal of respect for Minister Nicholson and wholeheartedly agrees with him when he says that Canadians are fortunate to have a remarkable legal heritage that is the basis of one of the finest justice systems in the world. It would not be overstating the point to say that our justice system is much admired internationally.

However, we cannot agree with proposed legislation that erodes one of the greatest strengths of that system, which is, in our respectful submission, judicial discretion. I will return to this point later in my comments. Moreover, we cannot agree with the premises put forward for the basis of this proposed legislation: that accused individuals abuse the court process by deliberately choosing to stay in remand in the hope of getting a shorter term imprisonment once awarded credit for time served. It is our respectful submission that the lack of empirical evidence to support this position was dealt with thoroughly by the witnesses who testified before the house on May 25, 2009. The witnesses also spoke of the often deplorable conditions at many of the remand facilities throughout the country. At this time, I do not want to repeat much of what has been dealt with before. You have their evidence, and I would only echo their comments.

One of the principle reasons for enhanced credit is that the condition in pretrial detention is so poor as to often fall below the minimum standards established by the United Nations 50 years ago. As such, the ability to give enhanced credit by our judiciary allows them to eject some fairness back into a system that has a built-in unfairness.

Another reason for enhanced credit, as this committee will know, is that pretrial detention does not count toward parole eligible. Pursuant to the Criminal Code, a sentence is deemed to start on the day that the sentence is ordered rather than on the day when a person first goes into custody. In that regard, Professor Anthony Doob's submission before the House of Commons committee was helpful in explaining how the math does not add up in determining the actual length of a sentence. In fact, he concluded that it further complicates an already complex sentencing regime rather than simplify it, which is one of the stated aims of the proposed legislation.

Another stated aim of the bill is to reduce the growing size of remand population in the country. Once again, the witnesses who testified in May presented powerful arguments as to why this proposed legislation will not reduce the burden on remand centres and facilities but instead will add enormous pressure to already strained federal institutions.

I was here during the previous presentation to hear the many statistics provided to this committee. I believe that one of the witnesses from Correctional Service of Canada indicated that he thought this would involve a 10 per cent increase in inmates in their facilities. That seems to fairly closely mirror what has been presented today — an 11 per cent increase. The testimony before the house committee was that it would tax an already overburdened federal institution system. The concern is that we will not address what this bill is trying to do, which is reduce pressures and remands in the provincial setting, and perhaps even be counterproductive by adding to the strained resources at federal institutions.

Another premise is the practice of granting enhanced credit can bring the administration of justice into disrepute because the public simply does not understand the system. As was noted by Andras Schreck of the Criminal Lawyers Association when he testified, the solution cannot be, for a public that does not understand, changing the law to accord with beliefs that may be based on misinformation. We suggest that it is our collective obligation to inform and educate the public rather than introduce legislation that appears to simplify but may in fact complicate. We trust jurors in this country, members of the public, to try the most serious offences. Surely we can trust an enlightened public's opinion on this issue. If we succeed in enlightening the public, then our justice system will enjoy the same reputation domestically as it enjoys internationally.

I will return to the issue of judicial discretion because for us, that is one of the key issues arising out of the bill. When Mr. Trudell was here several months ago, he referred to the Khawaja decision. I would like to read a quote by Mr. Justice Rutherford. This committee will be familiar with the case. This sentencing was in relation to serious terrorism offenses. In that decision, Justice Rutherford said:

I don't think that specifying a precise or particular arithmetic formula for giving presentence custody credit in this case is necessary or appropriate. It simply invites the further use and adoption of such formulae, tending to make sentencing appear a mechanical cookie-cutting process. It is not. It is a highly individualized process in which individual judgment and general principles work together over the circumstances of individual cases. . . .

Judicial discretion is the cornerstone of our system. It is interesting to hear the government say at times that our judges are being soft, just do not get it and are not applying the laws that have been set out. Yet, one of the privileges of the Canadian Council of Criminal Defence Lawyers is to be invited often to swearing-in ceremonies for new judges. It is a wonderful occasion. The government fills judicial vacancies and the appointments are introduced with great fanfare and include mention of all the qualities that the new judges will bring to the bench, including wisdom and appropriate exercise of discretion. Thus, it strikes us as inconsistent when that same government will say later that it cannot trust those same people to exercise discretion appropriately. We find it inappropriate and some witnesses before the house committee said the same thing. You cannot take one or two of the anecdotal or anomalous cases in which someone may say, these were the circumstances; look at the result. The public may be outraged by that. You cannot change a system that works based on one or two anomalous cases.

Often forgotten, as part of this great system, is appellate review. Where a judge errs in terms of giving too much credit in the exercise of discretion, it is always subject to review by higher courts. As Mr. Chaffe mentioned, in a country such as Canada, you need judicial discretion to address the disparate and varying conditions found throughout the country. The Canadian Council of Criminal Defence Lawyers has representation throughout the country. Mr. Chaffe pointed out areas in the North. When we appeared before, Mr. Trudell pointed out the situation in Yukon, where many of the remand facilities house males and females together. Male members will be given some of the programs available but the women will not have that access because males and females cannot mingle.

In the judiciary in Yukon, it has developed that, because of that situation, the men, generally, will only be given 1.5-to-one credit in relation to the time served to take into account the recognition concerning parole eligible but not specifically to deal with the conditions and the lack of programs available at the front end. Women, in general, are given two-for-one credit to reflect the unique circumstances.

What may work in the Yukon may not work in downtown Toronto. That is what is great about this country. This is a very Canadian approach that we have built into the system, largely based on the fact that we trust those we have asked to make appropriate judgments. Our largest concern with this piece of legislation is exactly that: judicial discretion and the erosion that this represents.

Finally, we do appreciate being asked to come, we think this is a very important process, we are grateful to be a part of it and for the hard work that committees such as this one put into consideration of very important issues. Though I know you will not do this, I would simply urge this committee not to ignore what appears to have been a non-partisan, very broad-based consensus as to these difficulties that I am repeating when this matter was before the house.

I started my comments in agreeing with Minister of Justice Nicholson in talking about what a remarkable system we have. Mr. Trudell, when he returned from testifying, said it was a remarkable day. Many members from a wide range of stakeholders were before the house, giving very real concerns and I hope real assistance to both that committee and to this committee in determining whether this bill should actually go through.

Michael Spratt, Member, Criminal Lawyers' Association: Bill C-25 is very important to the members of the Criminal Lawyers' Association, as this bill affects the very people we work with on a day-to-day basis. The people most affected by this bill are our clients, and the people we see every day.

It is the CLA's position that Bill C-25 unfairly curtails and, in many cases, completely removes judicial discretion, which many parties agree is important in determining the amount of credit one should receive in determining pre-sentence custody.

This issue has specifically been considered by our highest court within the last decade. I am sure the committee is familiar with the Supreme Court case of Regina v. Wust. I would like to evaluate Bill C-25 in the context of Wust.

It is useful to talk about some truths. The truth is that first principles are important. The truth is that persons are considered innocent until proven guilty and persons who are housed in remand facilities awaiting trial and sentence are presumed innocent.

Pretrial detention subjects innocent members of our society who are presumed innocent to incarceration and deprives them of their liberty. It must be remembered that it is often the most disadvantaged in our society — those with no fixed address, no family, no funds, with addiction and mental health issues — who find themselves in pre-sentence custody, unable to obtain release in large part because of recent and new legislation with regard to the bail system.

The truth is — and it has been judicially recognized time and again — that pre-sentence custody is harsher time due to the absence of programs and rehabilitation facilities, the lack of remission mechanisms, the limitations on family visits, as well as overcrowding and deplorable conditions.

The truth is no person accused of a crime chooses to spend time in deplorable conditions such as that. I will talk about this "fanciful" idea that some people choose to stay in custody to increase potential credit at the end of the day.

I have just come from sitting in bail court right here in Ottawa. I was there from 9:30 a.m. until five o'clock today. I had two cases that were set for bail. These people were arrested two weeks ago. They come from disadvantaged groups. They have addiction issues and it took them some time to make contact with members of their family and to arrange what I believe to be adequate bail plans. We set bail hearing dates last week. They were set for today. There is a list. I was number one and two on that list. I attended bail court on time. The sureties attended on time and, surprisingly, even the prisoners were there ahead of time.

I attended court and sought to start that bail hearing. I can tell you that I sat in court all day, and I was not reached because there was a priority case that was not reached the day before. There was then a second case that was not reached the day before that. It had priority over me. These people are still in custody. They are still presumed innocent and they have not had their bail hearing. Their bail hearings are now scheduled for next week. These people have not chosen to be in custody. It is unfair to say that they have chosen to be in custody; they do not want to be there.

In Wust, the Supreme Court of Canada rejected a mechanical formula for determining the appropriate credit to be given for pre-sentence custody. It was a unified court that came to that conclusion. I looked with interest last night to see who the members of that court were. Of course, Justice Arbour authored the decision. We have heard in the media about Liberal appointments and Liberal ideologues on the bench. Make no mistake: This is a very balanced court. Four members were appointed by then-Prime Minister Mulroney and three members were appointed by Prime Minister Chrétien. They were unified in their decision. They reaffirmed, ". . . the goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence." The court specifically stated that although two-for-one may be appropriate for all the reasons that this committee is aware of that I will not go into — a different ratio could be applied. The Supreme Court said that a different ratio could be applied. They give an example: If the person had access to programs, the two-for-one ratio would not be appropriate. This is judicial discretion. This is, as others have said, judges taking into account local practices and local conditions at the jail.

It must not be forgotten that, since the Supreme Court decision in Wust and before it, courts have expanded upon and limited the cases where you might get actual two-for-one enhanced credit. For example, if one is in custody because of a breach of recognizance, a revocation of bail or a failure to appear, a different credit could be applied and has been applied in cases such as Ramsey, Stewart, White, Gagne, Lapointe, Jacome, and so on. In some cases, less than two-for-one is given.

If the accused breaches probation, courts have applied different ratios. That has happened in cases like Pilch, Ogden, Singh, and M.(G.). If the accused was serving time in a foreign jurisdiction, different ratios can be applied. If the accused delayed proceedings of their own accord, different ratios have been applied, such as in McIvor, and Beauchamp. I could provide these cases, if you would like; I would be happy to send them to the committee.

If the accused would likely not be eligible for parole, courts have declined to accredit them at a rate of two-for-one for their pre-sentence custody. Specifically, if we look at the case of Mills, the court said, "the accused would obtain compensation for a loss he is unlikely to suffer."

Doing what courts often do not do and what courts have said they maybe should not do, is look prospectively down the road and make a guess about when or if the accused will make parole. Again, if the accused is convicted of a serious crime, or is being designated a dangerous offender, courts have used the discretion that Bill C-25 seeks to limit, and have given less credit for the pre-sentence custody. The Supreme Court of Canada in Wust stresses the importance of preserving judicial discretion and rejects a rigid formula — something that Bill C-25 seeks to impose.

We are in an enviable position in Canada. We are in a position where we can travel abroad and tell countries that we have honest, well-funded Crown attorneys and prosecution services. We have defence lawyers who may not be as well funded, but are nonetheless bounded by ethical standards of conduct. We have an independent, self-regulated bar. Unlike some parts of the world we benefit from an incorruptible judiciary. Bill C-25 is another example of discretion being removed from that incorruptible judiciary. It has the effect of unfairness.

As my friend has said, there are mechanisms that could be pursued if that discretion is misused or if reasons are not given for the use of that discretion. It bears repeating that much has been made about accused people intentionally delaying proceedings. I can tell you this is simply not true. You give judges too little credit. Courts can see behind this sort of tactic.

Pragmatically, an accused person gets credit for an early guilty plea — for taking early responsibility. This is lost if proceedings are delayed. Even if one were cynical, whatever gain one might achieve from delaying proceedings would be taken away through a late guilty plea. I have given you many examples of courts using their discretion to limit pre-sentence custody.

I have represented hundreds of accused who have found themselves in pretrial custody. Not one of them wants to sleep three to a cell; not one of them wants to sleep curled up next to a toilet; not one of them wants to have only two visits from their family; not one of them wants to be denied programs. I have had many clients who have requested programs to have those requests go unanswered. Pre-sentence custody is harsh.

Bill C-25, if passed, will result in constitutional litigation. Bill C-25 offends the Charter. It will have the real effect of doing something that we do not seek to do in sentencing. In sentencing, we seek to treat like offenders who commit like offences in similar ways.

One can imagine a number of scenarios where like offenders who commit like offences and who have like personal circumstances are punished differently. One of those punishments is spending an inordinate amount of time in remand facilities with no programming and harsh conditions, much like the individuals who did not get their bail hearing today. They are not receiving programming.

The government has said time and time again that credit for pre-sentence custody creates the impression that offenders are getting a more lenient sentence than they deserve. This may be the impression, but this is not the truth of sentencing. Pre-sentence detention is not lenient, it is cruel.

Instead of educating the public, instead of providing the resources to reduce the amount of time an accused person spends in custody and instead of fixing the problems of the deplorable pre-sentence conditions, the government seeks to eliminate the judicial discretion to provide a just and fair remedy to take into account those deplorable conditions. One must never forget that if the government fixes those problems, much of the rationale for enhanced credit disappears.

Bill C-25 may address an incorrect public perception, but in my submission, in no way does it bring truth to sentencing.

Gaylene Schellenberg, Lawyer, Legislation and Law Reform, Canadian Bar Association: The Canadian Bar Association is the national association of over 37,000 lawyers, law students, academics and notaries. An important aspect of the CBA's mandate is seeking improvements in the law and the administration of justice. It is from that perspective that we appear before you today.

With me is Eric Gottardi of the CBA's National Criminal Justice Section. The section includes representatives from both the Crown and the defence from every part of the country. Mr. Gottardi practices both for the Crown and defence in Vancouver. I will turn it over to him to address the substance of our concerns.

Eric Gottardi, Secretary, National Criminal Justice Section, Canadian Bar Association: Madam Chair, the difficulty of going last is that there may be some repetition. I will do my best to be brief.

We appear before the committee today to express our concerns arising from the proposed legislation. Bill C-25 purports to limit the practice of giving enhanced credit for time spent in pre-sentence custody. The CBA National Criminal Justice Section believes that the proposed amendments would have an adverse effect on the fair and effective administration of justice across Canada.

Remand or temporary custody is a provincial-territorial responsibility. Therefore, all remanded prisoners are held in provincial detention centres. Detention centres, as we have heard, are overcrowded with three or four people sharing cells designed for one or two. There is little in the way of programs or services available to these individuals. At best, being in remand means being warehoused. At worst, it means living in conditions that are dirty, degrading and dangerous.

The practice of giving enhanced credit for some pretrial custody situations was developed to take into account two factors that have been spoken to today. First, some offenders, while presumed innocent, are incarcerated in conditions worse than they would experience if convicted of the crimes for which they were accused. The Criminal Code permits our sentencing judges here in Canada to take pre-sentencing custody into account when determining a fit and just sentence. That needs to continue. Second — and some may argue the more important factor — justifying the continued utility of giving enhanced credit is the fact that earned remission does not apply to time spent incarcerated while an accused is waiting for his or her trial or waiting for sentence to be imposed. The same is true for early parole.

As lawyers for both the prosecution and the defence, we are in Canadian courts every day. The experience that Mr. Spratt described to you in bail court is an experience we have as Crown and defence lawyers across the country. It is no different in Vancouver. The bail courts on Main Street are clogged with people itching to get going with their bail hearings and waiting to see if they will get that chance.

Being in court every day, we know what judges do and we know they do it well. They are well placed to arrive at a just and appropriate sentence taking into account all of the relevant factors including the length and circumstances of any pretrial detention. Judges are not required to grant additional credit for time spent in pretrial custody and may deny credit.

In our experience, when prosecutors show why individuals should not get credit for enhanced credit, the courts take that seriously. That is happening more and more. At sentencing hearings, judges are hearing more evidence about whether a particular accused had access to programs and what type of conditions they were facing when they were in remand custody. Judges will take that into account and will not, as a matter of course or as a rubber stamp, simply hand out two-for-one credit. It must be earned and more submissions and evidence are being heard at sentencing hearings about this issue.

That is where this evidence should be heard. The sentencing issue should not come out at the bail hearing. An important point touched on earlier is some of these concerns about the reasons for the detention being factored in later at the sentencing hearing. That is a troubling concern that in my estimation will cause an extreme amount of difficulty in bail courts across this country.

Bill C-25 constitutes an unnecessary erosion of judicial discretion in the sentencing regime. In addition to addressing issues of pretrial conditions, judicial discretion in awarding credit for so-called "dead time" is critical to avoiding skewed sentencing.

In our written submissions to this committee, we provide an example to help illustrate that point. I did not major in statistics and I am not very good at mathematics, but I think the example that is provided on page 3 of our written submissions is clear. It gives a concrete example of how two similarly situated offenders facing the same offence would be given different sentences based solely on the issue of pretrial detention, and how Bill C-25 would exacerbate that situation.

In the example, you have two similarly situated male offenders charged with the same offence. One is denied bail — that is person A — and the other is released into the community, which is person B. After six months, their trial comes on; both are convicted and both are sentenced to three years' imprisonment.

Under the current law, person A would normally receive two-for-one credit for six months he served as "dead time" and would be sentenced for an additional 24 months to complete the three-year sentence. Person B would begin serving the three-year sentence at the penitentiary. Neither A nor B has a prior serious offence record and, under the CCRA, would typically be released on parole after serving one third of his penitentiary sentence.

Person A would serve another eight months over the six months that were already served, for a total period of incarceration of 14 months. Person B, who had been out the entire time, would serve 12 months of incarceration before being released on parole. Person A would serve two months more time incarcerated than person B, even though both were guilty of the same offence.

Bill C-25 makes this discrepancy worse. Person A would get credit for only the six months' pre-sentence and would serve an additional 10 months of custody, for a total of 16 months incarcerated — six months served in the generally harsher conditions in the remand facility. On the other hand, person B still serves only 12 months.

This is an example of a relatively short sentence. The discrepancy grows and the sentence grows longer.

In the submission of the CBA section, limiting the discretion of sentencing judges to address these discrepancies does not do anything to further truth in sentencing. In fact, to ignore or de-emphasize the impact of sentencing time on remand serves only to obfuscate the truth further.

I want to touch on the issue of accused persons abusing the process by perhaps instructing counsel to continually adjourn the matter to build up credit. In the submission of the CBA section, this is a myth.

It is accepted in the backgrounder that was provided by the government that the main reason for the increase in the remand times is an increasing complexity in criminal cases and the drying up of judicial and court resources, so it is taking longer and longer time for cases to get to trial. Once an accused person is ordered detained in custody, — a decision over which he or she has no control — he or she does not have any control over how quickly that case gets to trial.

One of the statistics that came up earlier in the session is the average time for a guilty plea was something in the realm of 95 days, and the average time to get to trial, and if there was an acquittal following, was something in the range of 260 days. The rationale for that is simple. As a defence counsel, once you are able to get disclosure of the case and you realize you are sunk because there is an overwhelming case, you can proceed to advise your client that maybe you want to consider a guilty plea.

That disclosure option is a very important step; it allows defence counsel to advise their client about what they might want to do. That is a process that is completely out of the hands of the accused and out of the hands of defence counsel. In most cases, it is out of the hands of Crown counsel as well. It is a fundamentally important step in the process and it happens at the beginning of the process.

Judicial resources and public education are the areas that the CBA section says that the government should be focusing on to address concerns that might be arising in relation to pretrial credit, not this misperception that accused persons are sitting in "Club Fed" and racking up time that they can put toward a guilty plea down the road.

To conclude, it is the view of the CBA section that Bill C-25, the truth in sentencing act, is geared more toward responding to this public misperception about the current use of judicial discretion rather than a careful and considered approach to law reform. Sir Winston Churchill said:

The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country.

In my submission, this legislation fails that test.

Senator Wallace: Thank you very much for the presentations. There seems to be a consistency there; there is a message that I certainly heard loud and clear.

Perhaps Mr. Spratt, I might direct this comment to you. Each presenter is concerned about the need for the continuation of judicial discretion. The judges hear the cases, they hear the facts and they are on the front line. That certainly makes sense. However, in your comments you speak about Bill C-25 as eliminating judicial discretion, that it is a rigid formula, a mechanical formula. I would point out to you that proposed subsection (3.1) of the bill speaks to the fact that the maximum credit could go to 1.5-to-one if circumstances justify it. As I read the bill, there is no restriction on what those circumstances might be.

Would you not agree that judicial discretion would not be eliminated by Bill C-25? That discretion would still exist, albeit in a more confined manner. Discretion to go to two or three credit for remand time served would not be there, but your statement that it would eliminate judicial discretion is a severe overstatement. I am interested in your comment.

Mr. Spratt: I would agree that subsection (3.1) limits judicial discretion, and the sections that follow eliminate judicial discretion in certain cases. For example, if someone is detained in custody, there is a 524 application — or they are detained because of a failure to comply. One must remember that when a 524 application is brought or a fail to comply charge is laid, that charge has not been proven. That person is still presumed innocent of that charge, and ultimately that person may be acquitted of that charge or acquitted of the initial charge that had him on bail in the first place.

In that situation, it would be completely eliminated. The 524 application would be brought; the judge would not be able to increase credit above one-for-one at all, and the person, in fact, would be found innocent of one of the offences.

Even if we spend the court time and call the evidence to show that circumstances justify, in those cases where that little judicial discretion remains, the mathematical calculation of 1.5-to-1 reflects only the lack of earned remission. It does not reflect the harshness of the conditions of pre-sentence custody. If a 1.5 credit was applied, someone would end up serving in totality the same amount of time. You can have two individuals, one of whom serves most of that time in a federal facility or a facility with programs, and the other person, although serving the same amount of time, has served it, through no choice of his or her own, at the front-end, in pre-sentence custody, under much harsher conditions. You can have two people serving the same numerical amount of days, but one is serving much harsher time and is being punished more severely.

Senator Wallace: You referred to how Canada is regarded on the world stage. As Canadians, we take pride in our judicial system and I think we are highly regarded. However, my understanding is that Canada is a rarity among common law jurisdictions in awarding in excess of one-for-one credit for remand custody. What is your comment on that?

Mr. Spratt: I suppose as Canadians we should be embarrassed that we have to award more than one-for-one credit. We should be embarrassed about the conditions in our jails. I would not seek to emulate all of the models around the world. I can think of examples of close neighbours that do not have the progressive parole system that we have that has served this country well and has, in my opinion, served reintegration and kept our crime rate lower than in other jurisdictions that the centre may be referring to.

Senator Wallace: I appreciate that comment, but your suggestion about Canada's position in the world stage and how we would be compared to other countries is important.

Mr. Spratt: I would take a Canadian judge over any other.

Senator Wallace: Probably I would as well.

The Chair: Any Canadians, any time, anywhere.

Senator Baker: First, I want to congratulate all of the persons here today as witnesses. It has been very enlightening. I would also like to mention the presence of Mr. Jamie Chaffe, representing the Canadian Association of Crown Counsel. I have been on Parliament Hill for 35 years and I have never seen the Crown attorneys' association present before a committee. I would have loved to have seen that because the opportunity would have arisen for cross-examination. I checked before I came here because I did not know what Mr. Chaffe would say.

When we say the Martin report, Mr. Chaffe, do you know what we are talking about?

Mr. Chaffe: I think so.

Senator Baker: Of course you do. It states that a Crown attorney is a minister of justice. He is impartial and cannot take sides. That is why in your written submission, which you did not read out, you say you are not taking sides here but just addressing the questions. I just want to remind you that I have a case here where you advocated three-for-one in the case of R. v. Burke in 2002. You do not remember that one?

Mr. Chaffe: I confess that I do not.

Senator Baker: I will give you a copy.

When you look at the case law, you have defence lawyers saying to judges that it violates the UN charter that we ratified on the treatment of prisoners. The judges have mentioned that in their adjudication, that the evidence was pretty clear. That is not in domestic law, so it does not count, but it provides a guideline for it.

It is extraordinary to read the accounts of the conditions in some of the jails in Toronto and Ottawa. This bill, in effect, prevents a person from receiving benefit for that or in some way being compensated for that offence under our system of fundamental justice. This proposed legislation closes a door; there is no doubt about it. The question to you is this how is the gap filled.

Senator Nolin asked will the judges get around this in some way. My question is will the defence lawyers find a way around it. Will it be by Charter argument by the end? You have to give 15 days' notice for a Charter argument prior to trial, so how will you do it on sentencing, unless you gave notice that you would do it on sentencing. What will you do now? You have a client, so what will you do to try to get around this legislation if it passes? I would like to have a simple straightforward answer from each of the four active litigators here today.

Mr. Chaffe: If Bill C-25 is passed, Crown attorneys will enforce the law. It is a fundamental role of Crown attorneys in the criminal justice system to uphold the rule of law.

That being said, in the busiest jurisdictions in this country, we will need to find ways to plea bargain court capacity for our most serious cases. We are not dealing with a closed system. When any kind of legislation comes down from the federal government, it must be supported by the provincially funded criminal justice system.

If there is an increase in the workload without an added increase in the criminal justice infrastructure, Crown attorneys, perhaps more than anyone in the system, have to re-prioritize their resources on their most serious cases, and, inevitably, other areas of prosecution suffer. We have extraordinarily limited trial court resources across the country, and this bill will increase the workload, at least in the bail courts, and there is a debate in regions about whether it will increase the overall trial rate. If that happens, there will have to be an adjustment of some sort.

In our position paper, we discussed offering a different sentencing incentive so that we can create capacity for our most serious cases. The Canadian Association of Crown Counsel is non-partisan and objective with respect to this. We are here only to talk about the impact of these proposed changes on the way things work on the ground.

The Chair: We do understand that, Mr. Chaffe. We do not ask you to make partisan statements.

Mr. Lapowich: I do not think there will be any doubt — it was already mentioned in Mr. Spratt's evidence today — that there will be Charter challenges. In terms of specific challenges, we can envision challenges under section 7, deprivation of, life, liberty. . . ; and a challenge under section 11(b), undue delay. We can see stay applications being brought; and, as was mentioned previously, for cruel and unusual, in terms of your specific point that you raised with respect to how horribly we have done in the past 50 years in relation to upholding treaties that we may be part of.

I hope that answers your question in a very brief way. That will lead to further litigation and complexity, which will frustrate our efforts to reduce remand populations and the time it takes to bring cases to trial and deal with the merits.

Mr. Spratt: The senator is quite right. You can see the problem that no one anticipates a conviction; I certainly never do. On a day when judgment has passed and your client is convicted, under normal circumstances, you might be able to proceed to sentencing right away. However, an adjournment might be necessary to file a Charter application to cull evidence from the jail concerning the conditions and to order transcripts about the delay in the proceedings. There are certain benchmarks for judicial consideration on acceptable delays. If you are limiting credit given to pre-sentencing custody, we can expect those benchmarks to be decreased. That leads to more work for the courts, the reporter's office and subpoenaing the superintendent to come down to court. It also causes the people, the very people affected by these poor conditions, to spend more time in custody because of the problems created by this bill. Again, limiting the judicial solution in most cases does not effectively solve the problem.

Mr. Gottardi: There is not much that I can add. I agree with my friends that there will be an increase in formal and informal attempts to resolve the issue. To take Mr. Chaffe off the hook, defence counsel will aggressively pursue Crown, I would imagine, for some kind of Crown discount or Crown credit so that we can achieve a resolution that allows the client beneficial resolution and allows the Crown to move one case off its overflowing docket.

The challenges that were mentioned are limited only to our creativity in terms of the kinds of Charter challenges that might be mounted against this proposed legislation, whether taking the position that it has limited any consideration of the conditions or any consideration of the inequity in the access to earned remission and early parole. There are different tacks that you can take completely aside from the issues that might arise from turning a sentencing hearing into not a consideration of the moral blameworthiness of the offender but into a trial on what that offender did in remand custody. It is a very problematic bill from all of those aspects.

Senator Baker: Of course, if they arrive at a conclusion with the Crown on a solution to the problem for a lesser sentence, it does not settle the matter because the judge then must agree with that conclusion. As Senator Nolin said, perhaps that is the way the judge might circumvent the legislation.

Senator Joyal: The witnesses have answered my questions on the constitutionality of the bill. There is a fundamental principle in the Criminal Code on similar offences that says that different people convicted of the same crime should receive the same sentence. You cannot have a discrepancy in the sentence under the Criminal Code. That, of course, would offend section 7 of the Charter.

Perhaps the intent of the bill has some favourable arguments, which the minister presented to us today. Given how the system works, in particular the clogged bail system, this bill would clog the system further rather than alleviate it. One of the minister's main arguments for the bill was that it would unclog the system. From the statistics that we have heard and from what you have said, instead it will have an adversarial impact on the system. Everyone agrees with that. It is the means that you take to unclog the system that might have an adversarial affect.

When I asked the minister if that would be the case, he said, no. He is so sure that this bill would serve the purposes that he has outlined. It seems to me that there are serious concerns to be looked at before voting on this bill because we might end with a contrary result to the intent of the bill.

The Chair: Mr. Chaffe, do you wish to comment?

Mr. Chaffe: It is certain, from our association's perspective, that there will be an increase in the workload of the bail system. That can be reasonably expected. You are importing part of the sentencing process into the bail hearing itself, which will likely be fully litigated by defence counsel and Crowns. The jury is out with respect to its impact on trial rates. We have regional disagreement about whether there will be a significant increase in trial rate. Many jurisdictions think that there will be such an increase. Some jurisdictions feel that in specific cases, where the case is overwhelming for the Crown, this will indeed result in earlier guilty pleas sooner in the system.

The Chair: How often is the Crown's case that overwhelming?

Mr. Chaffe: I say to each one of my jurists that each case is overwhelming.

The Chair: Indeed. I am not asking for a precise statistic. However, presumably if it is going to trial, then the Crown's case is not that overwhelming.

Mr. Chaffe: The perspective that is most important is probably that of the accused in this context because he or she has to make the decision to plead guilty. In this bill we are trying to address what incentives are being taken away and what incentives are being added. It is up to the clients of these gentlemen to determine when they feel the case for the Crown is overwhelming. That has been the focus of our analysis.

Senator Angus: I commend all of you for your thoughtful, interesting and helpful presentations. I have listened carefully. We talk about our wonderful justice system of which we are so proud in Canada. However, it has many elements, one being the legal provisions on the books that have evolved in the common law. Another element is the infrastructure that we provide or do not provide for that law to be applied. It seems to me that we are talking today about two different things. Mr. Spratt, toward the end of your presentation, you pretty well addressed my point.

We are here to determine whether this will be good law or bad law. I have not heard one of you say that this is bad law. We have heard the minister say that the one-on-one credit works very well without problems in another Western country. However, you are saying that at this time, given the state of the infrastructure, provincial or federal, it will not work properly. You have given us some practical evidence to support that sentiment; but you are not saying that this is a terrible piece of proposed legislation that flies in the face of natural justice and a good system. You are saying that we have terrible facilities in the remand centres and you noted various other things. As a lawyer, I have waited for days and it drives me absolutely crazy. It makes me beat the table and say this is the worst system. What are we doing here; are we living in the Dark Ages?

The message you have given, and that I have given to the extent I can deliver it elsewhere, including the Senate chamber, is that we have a big problem. It is not so much a problem to do with the provisions set forth in this bill, other bills or in the Criminal Code. We just do not have the facilities to operate our system properly in this day and age, in 2009, with this population. It is developing into an unfair and oppressive, disgusting situation.

I think that is the message that I get out of this meeting. However, I have not heard that it is a bad law and I will not have a problem voting for the legislation. However, I would like whatever arguments you will bring to be heard when they try to apply it.

Do you agree, more or less, that the law is not the bad thing here; it is the fact that, in today's infrastructure environment, it will not work? I will use the Baker formula. I think you are all terrific.

Mr. Spratt: Even if there are programs and everything is perfect, we must never lose sight that each offender at the stage of conviction is an individual with specific characteristics. Even in a perfect system, those individual characteristics need consideration. I think it may be putting the cart before the horse to say that, if we pass this law, it will give incentive to fix up the remand systems; perhaps it should be the other way around. If the remand systems are fixed, this law becomes unnecessary.

Senator Angus: That is my point.

Mr. Spratt: However, even in a perfect system, judges must be able to apply their discretion to tailor sentences to individuals.

Senator Angus: They have that discretion. I do not buy it; erosion, perhaps, in the circumstances. I agree with Senator Wallace. In the very phrase "judicial discretion," regardless of adding or subtracting for time in jail, there is discretion. There are all kinds of discretion. "Erosion" is the word I have heard you use.

The Chair: Senator Angus, it is not that this is not a fascinating discussion, but debate is not usually what we do in committee hearings.

Senator Angus: I am not trying to debate. Sorry. I was trying to question.

Mr. Lapowich: Just to be clear, whether we are talking about elimination or erosion, when you remove or erode judicial discretion, you are harming our system, a system that is not perfect but it is a good system. I refer to minimum sentences, which is not an area we are discussing today.

There are imperfections and the individual things that Parliament could never dream up. You can sit in a room for a long time to try to think of the possible scenarios that may happen and it would be impossible to do so. It would be impossible to ask you to do that. Leaving the discretion with those people that we entrust to exercise it properly is our greatest concern.

I would not agree that we would not have concern.

Senator Angus: You would have less concern.

Mr. Lapowich: Correct. Our concern is that, even with the erosion, a concern is always there. In terms of the conditions and all the rest, yes, I agree in terms of putting the cart before the horse. What we should be doing, then, is turning our mind to putting the resources where they belong. It is the front end. That is what will make communities safer. Those things enhance rehabilitation rather than warehousing. That is where you get truth in sentencing.

The Chair: Mr. Chaffe, what do you think would be the prime steps that we could take to unclog the courts? Is it more money? Is it more judges and courtrooms? Is it more programming? What is it? I do not know. That is my supplementary, prompted by Senator Angus' reflections. You may answer now or answer part of my question in writing.

Mr. Chaffe: I can give you a response to both questions and I would be happy to provide a written response to your central question. The reason the CACC is delighted to be here is because we represent the front-line prosecutors across the country who have to implement the legislation made by Parliament.

We are dealing with a criminal justice system that is either at or well over capacity, depending where you are in the country. Every piece of legislation that you add or change creates some sort of workload issue for us.

If we have a message to this chamber, it is that we hope the legislatures take the criminal justice system as a holistic unit that is made up of many different parts, such as police, prosecutors, defence counsel, Crowns, probation and parole officers, and corrections officers.

Whenever you change something that has an impact and you have to make your changes, I think it is important to listen to the people who have to implement the laws so that you can appreciate that impact. Often, laws are made by fair-minded people but they have an opposite reaction on the ground. That is one of the reasons we are delighted to be here today.

The Chair: That may be the core reason why we are not just pleased you are here but why it is so important for us to hear from all of you and, indeed, from others as we continue with our study on this bill.

Senator Milne: Mr. Chaffe, earlier this evening, the minister told us quite a few times that this will unclog the courts. However, you have said, quite convincingly, that it will clog-up at least the bail courts. How are the members of this committee supposed to square this circle?

Mr. Chaffe: That is a difficult question. I am not sure I want your job description. I can hear all of my member organizations across the country cringing. I am not sure how you will square this circle.

We have attempted to provide this committee with the best prediction we can give as front-line prosecutors, with respect to the impact of this legislation.

Senator Milne: Quite frankly, my inclination before tonight was to support this bill but, now, I do not think so.

I will go on, then, to Mr. Gottardi. Following on from Senator Joyal's remarks, what, in your opinion, is the likelihood of a constitutional challenge to this bill, given the previous Supreme Court ruling in the Wust case?

Mr. Gottardi: I think the prospects of constitutional challenges to the legislation are quite high. I think they could be many and varied. I continue to be intrigued by the implications that this sentencing law has on the bail process. There could be an interesting challenge mounted in the sense that this sentencing legislation might highlight and create a super-added emphasis on criminal records and the role that criminal records or prior criminality plays into detention and how that follows through the process and can impact on sentencing and the credit that might be given.

There are already three well-established, well-enumerated grounds for detention. Does this create a fourth, or does it highlight one factor above all others? That is just thinking off the top of my head.

I think the likelihood is quite high that that there will be constitutional challenges of different kinds. Whether those challenges will succeed, I do not know, but that will not be sorted out for a decade. In the meantime, defence lawyers and Crown prosecutors on the front lines have to deal with these issues as they present themselves.

The Chair: Thank you all very much indeed. We are grateful to you. We know it is not fun to be part of a big panel where there are many people all being asked to testify, but you have done wonderfully well. We are very grateful to you all.

(The committee adjourned.)

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