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Law-Matters

Jail, two-for-one credit, and politics

Some politicians have a low opinion of the public. At least that’s how it seems when you look at some of their decisions…

Let’s back up to February 2010.

At that time, the Federal Government’s Truth in Sentencing Act, also referred to as Bill C-25, came into effect. The change is reflected in section 719 of the Criminal Code.

Put simply, the Act limited the time that courts (judges) could assign to pre-trial custody, tossing out the two-for-one credit that had been applied in many Canadian courtrooms. Now, judges are ONLY allowed to give straight time (one-for-one credit) for time spent in pre-trial custody, except in EXCEPTIONAL circumstances, when a 1.5 for 1 credit could be given.

Here’s some background: sometimes offenders are held in custody (before trial) for an alleged crime. This happens more with serious crimes. If those offenders were found guilty, then (before February 2010) the judge (using his/her discretion) could grant the offender two-for-one credit (or some other amount) for that time spent in pre-trial custody.

Here is an example: if an offender is given two-for-one credit, then 2 months spent in pre-trial custody counts as 4 months spent in post-trial custody.

Two-for-one (or some other) credit was NOT automatically given by judges.

You may be asking, “What is the point of giving the extra credit?” Well, there are a few reasons.

For one, pre-trial custody is generally thought to be ‘harsher’. In pre-trial custody, the offender is housed in their cell for longer periods of time, sometimes 23 to 24 hours a day. Sometimes, the cell is being shared by several people… Also, in pre-trial, offenders typically don’t have access to rehabilitative programs. Basically, the nature of the confinement is worse.

There are a number of cases that discuss poor pre-trial custody conditions. Some of the more horrific cases involve prisoners sleeping on the floor, eating on their toilet, and getting skin diseases from the facility. In those cases, the judge ordered that additional credit be given to the offender.

Also, and more importantly, pre-trial custody is ‘dead-time’, meaning parole eligibility doesn’t apply to pre-trial custody. To explain, remember that an offender will often get released on parole after 2/3 of their sentence is served. But, with pre-trial custody, that time is not taken into consideration for parole. I discussed parole eligibility in a previous column: Parole Explained.

The bottom-line, though, was that (before the changes in 2010) judges had the power and discretion to decide whether or not to give credit (and how much credit to give) for time spent in custody. This was the way things were done in Canada for a long time.

So, with good reasons for giving credit for pre-trial custody and with the power to give credit in the hands of capable judges, why would the federal government want to mess with that?

Well, the federal government believed that most Canadians were NOT in favour of giving extra credit to persons convicted with criminal offences. The Feds also wanted to appear ‘tough on crime’ (and they want votes).

When rolling out the changes, the federal government provided several reasons in support, such as greater transparency in sentencing decisions and less clogging of the courts: Legislative Summary. Of course, there wasn’t any proof that any of these positive effects would occur (or have occurred).

Also, the federal government said that some lawyers were deliberately delaying proceedings so that their clients could be given two-for-one credit and thus shorter terms of imprisonment. This is a pretty serious accusation (with, of course, no proof).

The point is: the federal government changed something that didn’t need to be changed and tied the hands of judges who are more capable and qualified to decide when to grant credit for pre-trial custody than the government or the public.

In making these changes, the federal government relied on the public not understanding the process, as well as the public’s blind hatred of criminals. It doesn’t speak very highly of the politicians (or the public).

This is why I write these columns: I encourage everyone to research and dig beneath the surface. If it turns out that you agree with the government’s decisions, then great – at least you came to your own conclusion (and are not a political pawn).

Really, though, we should have seen that these changes were ‘political theatre’ from a mile away by just looking at the sensationalistic and ill-suited title for the law: Truth In Sentencing Act.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.



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About the Author

Jeff Zilkowsky is a lawyer practicing at MacLean Law in the Lower Mainland and in Kelowna, and focuses his practice on family law and litigation.  

In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to email Jeff at [email protected]

Visit Jeff’s website at www.jeffzilkowsky.com or visit the website of MacLean Law.



The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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