Ontario judges are knocking time off sentences for offenders who have endured persistent lockdowns in the province's chronically understaffed detention system, the latest and strongest indictment of provincial jail conditions and a direct challenge to a federal law placing strict limits on sentencing credits.
At least five recent decisions have awarded sentence discounts based on the hundreds of labour-related lockdowns that have plagued Ontario jails over the last two years and left hundreds of prisoners confined to their cells for up to 24 hours a day with little opportunity for fresh air or showers.
The reductions represent a strong indictment of Ontario's corrections system and a possible death knell for the Truth in Sentencing Act, once a cornerstone of former Conservative prime minister Stephen Harper's tough-on-crime agenda.
"Judges are finding a workaround because the strict application of the Truth in Sentencing Act created a situation that's just not fair," said lawyer Ingrid Grant, who has represented the Criminal Lawyers' Association of Ontario as an intervenor in two Supreme Court of Canada cases challenging parts of the law.
For inmates at Ontario's two-year-old super jail, the Toronto South Detention Centre, the lockdowns have been unrelenting. Between December, 2014, and November, 2015, staff imposed 162 full or partial labour-related lockdowns, according to government figures provided to The Globe and Mail.
"You have to remember that the vast majority of people there have not been sentenced. They are presumed innocent, and this is the way they are treated," said criminal lawyer Peter Scully, who has represented scores of clients housed at Toronto South. "I'm astonished there hasn't been a full-on revolt."
One offender, Jeffrey Bedward, spent at least 225 days on lockdown over a 520-day stint at Toronto South, according to an affidavit filed at his sentencing last year. During lockdowns, he said, he was limited to 20 minutes a day outside his cell and permitted a shower once every three days. Visits from family and lawyers were cancelled. He had limited access to books, fresh laundry and fresh air.
In a decision released last month, Superior Court Justice Brian O'Marra sentenced Mr. Bedward to 36 months on six firearm-related charges and credited him 1.5 days for every day he spent in pre-sentence custody, the maximum permitted under the Truth in Sentencing Act. But there was more. The judge included an additional discount of three months to account for the "harsh conditions" he faced at Toronto South.
The approach is part of an emerging judicial trend. In a January sentencing decision for a man convicted of aggravated assault, Justice David Cole subtracted three months over and above limits set forth in the act "as an expression of community disapproval of the state's continuing inability to provide safe and properly administered detention centres."
Two other judges have issued similar decisions in Ontario. All cite a pair of 2014 Supreme Court decisions – Summers and Nasogaluak – in concluding that sentence reductions exceeding the standard 1.5:1 ratio are permissible where there is proof of "state misconduct."
A glut of similar decisions is coming down the judicial pipeline, said Mr. Cole said, speaking as a professor of law specializing in sentencing at both the University of Toronto and York University. "Crowns do not seem to be objecting, once the evidence is before the courts," he said, "and I must say that Ontario correctional officials have to date been pretty candid about conditions in their institutions."
In a statement, provincial spokesman Brent Ross said every effort is made to maintain daily showers, visits, programming, laundry and book services during lockdowns. He added that the province is working to boost staff at its institutions. Twenty-six new officers will start at Toronto South this week as part of a graduation class of 139. "Transforming our correctional system is a priority for the ministry because we recognize that the status quo cannot continue," he said.
Enacted in 2010, the Truth in Sentencing Act was a reaction to the perception that lenient judges were doling out excessive sentencing credit to offenders who spent time in pre-sentence custody. Since the 1970s, judges routinely granted double credit, lopping two or more days off a sentence for every day spent in pre-sentence custody. The credits were intended to reflect both the harsher conditions that generally exist in pre-sentence detention centres, as well as "dead time" – detention that doesn't count toward parole or early release eligibility. As of Feb. 22, 2010, the Truth in Sentencing Act eliminated two-for-one and replaced it with one-for-one credit. It did, however, allow for 1.5 days of credit under exceptional circumstances.
But judges began to routinely grant 1.5 days' credit for each day served. In 2014, the Supreme Court ruled that they had the discretion to do so.
Liberal Prime Minister Justin Trudeau has instructed Justice Minister Jody Wilson-Raybould to undertake a wholesale review of the sentencing legislation passed under the former Conservative government.
"At this point, the government could just repeal this [law]," Ms. Grant said. "It's wheezing and dying."