Let’s start with the obvious: It’s important that the public have confidence in the justice of the criminal justice system. When an offender has been sentenced to a certain amount of time in jail, it’s not unreasonable for citizens to ask that they be able to take that information at face value. But the Conservative government’s attempt in the Truth in Sentencing Act (a Criminal Code amendment enacted in 2009) to provide such clarity is very much in contention. This week, the debate made its way up to the Supreme Court of Canada.
Before 2009, Canadian judges habitually double- or triple-credited the days an accused spent in pretrial custody. In the case of a guilty verdict, that double- or triple-counted time was deducted from the eventual sentence. The Truth in Sentencing Act, however, says that one day equals one day, except where the sentencing judge thinks “the circumstances justify” treating it as being worth as much as a day and a half. Many accused are out on bail, and spend little time in pre-trial custody. Conditions are often less ideal for the rest, and holding facilities are widely seen as harsher environments than prisons, with few or none of the services needed to help offenders rehabilitate. As a result, most judges have been treating the new law’s exception as the rule, granting an automatic entitlement to a credit of 1.5 days for each day held pre-trial.
Should the Supreme Court push things one step further, and strike down the pre-trial detention formula of the Truth in Sentencing Act? On balance, we think not.
Remember that two other federal statutes concerned with prison already grant early release to many or most inmates. Such credit is granted in the same 1.5 to 1 ratio, conditional on good behaviour in custody. Beyond that, Canadian judges already have a great deal of discretion when it comes to handing down a sentence under the Criminal Code – and so they should. The 2009 amendment to the rules is not a fanatically tough-on-crime law. Instead, to paraphrase Gertrude Stein, it says that a day is a day is a day – and even offers wiggle room, seized on by judges, of saying that sometimes a day is a day and a half. The law offers the public some measure of transparency about sentencing, without overly restricting the necessary discretion of judges in setting a sentence. The Supreme Court of Canada – in spite of some questions from the bench on Thursday, seeming to express incredulity over the government’s position – should uphold the Truth in Sentencing Act.