Law Times

Law Times • December 12, 2011 An online resource 1.800.263.3269 Focus On CRIMINAL LAW Lawyers steadfast in opposing C-10 Existing crime bills already affecting courts, prisons BY GLENN KAUTH Law Times people, according to a group of lawyers in northern Ontario. "Th is didn't start with bill C-10," T says Kenora, Ont., defence lawyer Peter Kirby of the omnibus crime legislation that went before the Senate last week after passing third reading in the House of Commons on Monday. "Th e eff ect of all of that legislation generally is to put more people in jail for longer periods of time. But it has a particular eff ect on ab- original people." Kirby is part of the Kenora Lawyers Sentencing Group. It includes local de- fence counsel who have been vocal about their opposition to bill C-10, especially given their concern that it'll essentially gut many of the implications of the landmark R. v. Gladue ruling that emphasized the im- portance of considering the circumstances of aboriginal off enders in sentencing them. According to a letter to MPs about the new bill, the jail in Kenora has space for about 177 inmates. A recent count, the letter noted, found 83 per cent of the 135 male inmates were aboriginal. All of the 30 fe- male inmates were aboriginal. "Th at is a problem," Kirby says of the various crime bills. "I don't think they've given consideration to Gladue." Justice Minister Rob Nicholson has repeatedly rejected those criticisms. At the Canadian Bar Association's confer- ence in Halifax in August, for example, he said it would be hard to predict the eff ects of the legislation on rates of ab- original incarceration ahead of time. "Mandatory minimums apply to every- one," he said. In addition, Nicholson touted the success of his department's aboriginal justice strategy. "It does reduce the re- cidivism rate when people get involved with the strategy," he said. As Kirby notes, bill C-10 is only the latest eff ort to tighten Canada's sentenc- ing laws. Already, evidence is starting to pile up that the changes so far are lead- ing to more crowding in jails. Anecdotal reports in Kenora suggest offi cials are having to put more than the allotted number of prisoners in a cell, sometimes through double-bunking, says Kirby. Th e Truth in Sentencing Act that ended double credit for time served in remand has been particularly signifi cant. "Th e eff ect is that people are going to be spending more time in jail because they're getting less credit for pre-sentence time," says Kirby. While the government says it's setting clear rules for sentencing through mea- sures like mandatory minimum penal- ties, reducing pretrial credit, and elimi- nating conditional sentences, the courts have indicated they're still looking for guidance on the new crime laws already in place. he government's crackdown on crime will have a particularly negative eff ect on aboriginal In R. v. Jones in September, for exam- ple, the Ontario Superior Court consid- ered the case of an off ender convicted of a gun crime just days after the Truth in Sentencing Act took eff ect. As a result, he was no longer eligible for double cred- it for time spent in remand. But Justice Michael Quigley undertook a painstak- ing analysis of whether Dwayne Jones could get credit at 1 1/2 days for each one spent in remand due to exceptional circumstances, an option allowed under the new legislation. In particular, Quigley noted Jus- tice Melvyn Green's "exhaustive and thoughtful decision" in R. v. Johnson, a ruling that noted the potential for of- fenders to serve diff ering amounts of time before becoming eligible for parole solely due to their pretrial remand cir- cumstances. As such, Green said judges could grant enhanced credit in order to avoid that result through the provision for exceptional circumstances. But Quig- ley, ruling in Jones, said he couldn't agree. "However, for all of the counterrevo- lutionary excitement that may have been generated in the popular and legal press and in the defence bar by Justice Green's decision in Johnson, and his determination that the 1.5:1 credit must apply in virtu- ally every case, this is a position that I fi nd I do not support following considerable refl ection and having careful regard to the language of the legislation," he wrote. facing a minimum sentence anyway. "Th e courts can only run effi ciently if there's a fair number of guilty pleas," she adds. Another important eff ect of tougher sentences is the cost to the justice system and the need for added resources to ac- commodate more inmates, an issue that has played out in Parliament for months as opposition politicians have sought, largely without success, solid numbers from the government. Th e Correctional Service of Canada's Justice Minister Rob Nicholson believes his department's aboriginal justice strategy addresses lawyers' concerns. of post-trial custody. At the same time, Quigley noted the bind the trial courts fi nd themselves in given the lack of higher-level guidance on how to apply the rules in the Truth in Sentencing Act, an issue the confl icting rulings on pretrial credit have already high- lighted. "Trial courts across the nation have grappled with these issues since the ques- The various acts included in the omnibus bill • Better protecting children and youth from sexual predators • Increasing penalties for serious drug crimes • Protecting society from violence and repeat young offenders • Ending house arrest for property and other serious crimes • Increasing offender accountability • Eliminating pardons for serious crimes • Adding criteria for the international transfer of Canadian offenders back to Canada • Supporting victims of terrorism • Protecting vulnerable foreign nationals against traffi cking, abuse, and exploitation "Th e legislation does not permit ev- ery off ender in remand custody to be awarded 1.5 to 1 credit for pretrial cus- tody. Th e very fact that the ordinary pre- trial custody credit is established in a 1:1 ratio by s. 719(3) shows that the carve out created by subsection 3.1 is meant to be exceptional, having regard to the facts of a particular case, and not an ordinary result based on analysis of disparities between earned remission or the time at which parole eligibility may arise de- pending upon whether or not off enders are subjected to pretrial custody." Nevertheless, Quigley did grant Jones enhanced credit at 1 1/2 days for each one spent in remand for post-trial custody to account for the delay in de- livering his ruling on the accused's ap- plication under the Charter of Rights and Freedoms and in sentencing him on Sept. 6 given that the trial had ended on March 28. As a result, Jones got eight months' credit for roughly fi ve months tion began to arise in the courts, but there is no direct appellate guidance that has yet been forthcoming about how this new re- gime is to be applied and in what circum- stances, with the peripheral exception of R. v. Monje, a 2011 decision of the Court of Appeal, albeit with respect to a summary conviction sentence appeal decided under the former regime." Besides putting people in jail for lon- ger periods of time, including by elimi- nating conditional sentences for serious personal injury off ences, Toronto de- fence lawyer Marcy Segal says the crime legislation enacted so far is already hav- ing other eff ects on the justice system. "Th e increase of minimum sentences means an increase in trials being liti- gated. So be careful what you wish for," she says in a warning to the government about the negative implications of reduc- ing the number of guilty pleas. Th at's be- cause, she notes, fewer people are willing to resolve a charge if they know they're www.lawtimesnews.com report on plans and priorities for 2011- 12, however, gave some hints at the cost so far. First, the report noted its forecast spending on custody programs will in- crease to $2.2 billion in 2013-14 from nearly $1.7 billion this year. It put the increase largely down to the crime leg- islation already in place, the Tackling Violent Crime Act and the Truth in Sen- tencing Act, even without the further implications of bill C-10. Th e Truth in Sentencing Act, for example, will likely bring in 3,200 new off enders by 2013, the report noted. A separate quarterly fi nancial report from the corrections service in June, meanwhile, noted the cost pressures al- ready taking place. Its budget for 2011- 12 is to increase by 21 per cent over the previous year due to $458 million in costs related to the Truth in Sentenc- ing Act and almost $20 million stem- ming from the Tackling Violent Crime Act. Th e added expenses are in part for capital costs to deal with the increased number of off enders. In response, the re- port notes the corrections service has es- tablished an infrastructure renewal team that will consider temporary accommo- dation measures such as double-bunking as well as the construction of new units within existing institutions. In addition to the cost implications, Segal notes there are other less obvious eff ects of the crime bills. For example, with the government increasing the maximum penalty for certain drug of- fences to 14 years from seven years, there are added risks for non-citizens upon conviction. Th at's because the govern- ment can deport people convicted of an off ence for which the maximum penalty is 10 years or more, Segal points out. For his part, Kirby says the new leg- islation that makes it harder to get more favourable punishments such as condi- tional sentences eliminates the benefi ts of more restorative approaches to groups like aboriginal off enders. With aborigi- nals accounting for 90 per cent of his clientele, he and his colleagues in the Ke- nora sentencing group are calling on the government to set up a sentencing com- mission to study the issue. "Th ere's no urgency to this legisla- tion," he says. Despite the concerns, the government has been moving fast on the bill and ap- pears in no mood to heed lawyers' objec- tions. As of last week, the bill had already gone to fi rst reading before the Senate. PAGE 9

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