Thank you, Mr. Chairman,
I'm here on behalf of the Criminal Lawyers' Association of Ontario, which thanks you for the opportunity to be here. The Criminal Lawyers' Association of Ontario represents about 1,000 lawyers in the province of Ontario who practise criminal defence work. It was founded in 1971. Our members are the people who work day in and day out in the system, and we are the people who represent the accused persons who will be directly affected by this bill.
I'll begin by saying that the COA wants to see improved efficiency in the justice system and wants to see delays reduced as much as anybody else. We agree wholeheartedly that there has to be transparency in the system. That said, we have grave concerns about this bill, and I'd like to divide those concerns into four general areas.
First of all, the problem the bill is designed to address, which is numerous accuseds clogging up the system by causing delay in order to rack up pretrial custody, simply doesn't exist. I have no idea where this idea comes from. As far as I'm aware, there's absolutely no empirical evidence in support of it. I can tell you, as a criminal defence lawyer who represents these people, who takes instructions from these people, it simply isn't true. There may be one or two people out there who have that attitude, but for the most part, the conditions in pretrial detention, commonly referred to by people who live there as “the bucket”, are so dismal that people can't wait to get out of there. If you're actually dealing with these people, the notion that they're going to sit there and delay the time they have to spend there on purpose is, quite frankly, laughable.
The concern belies a complete lack of appreciation of just how truly dismal the conditions in pretrial custody are. I'm not going to go through them all. I think you've heard them from other witnesses as well. I think it's fair to say that even if there's going to be double-bunking and increased pressure in the federal system as a result of this bill, it's not going to be anything near what you're seeing in the provincial remand institutions. Anybody who's interested should just go and take a tour of the Don Jail, or another one of those, just to see exactly what kinds of conditions people here are living in. The reality is, people want out of there as quickly as possible. They'd rather go to the penitentiary than spend more time in the bucket.
It's a well-known fact that denying bail results in guilty pleas. One of the concerns about denying bail too readily is that it will result in people pleading guilty who otherwise wouldn't, who otherwise would have a trial. Of course, the reason they plead guilty rather than wait for their trial is they have to get out of there; they want to get out of there.
As well, it's a well-established principle of sentencing that an early guilty plea is a significant mitigating factor, so any advantage that somebody may perceive they're going to get by delaying things is going to lose the effect of the significant mitigating factor of an early guilty plea in any event.
Most importantly, our members take some exception to the suggestion that we routinely engineer delays in order to somehow benefit our clients by having them spend more time in pretrial custody. First of all, for the reasons stated, it does not benefit our clients. More importantly, we're officers of the court; we have an obligation to the court to keep the system running efficiently insofar as it's within our power to do so, which is not very much. There's no evidence that criminal defence lawyers fail to discharge these obligations in a professional manner.
In any event, as you've heard already, the law is clear that an accused who does cause delay is not going to get enhanced credit in any event. Put simply, this bill is really a solution in search of a problem. It's important to remember that the common law guideline of two for one is not automatic. It's open to the crown in any given case where the crown sees fit to argue that this should be less credit, and if the crown has evidence available to justify that, the judge will not give the two-for-one credit and will give whatever credit is appropriate in the circumstances.
The reality is, there's no need for an accused, even an accused who wants to cause delay, to do anything to cause delay in the system. The system is quite capable of causing delay on its own, thank you very much. The delays in the system, and there are many, are caused by a variety of reasons. It's a multifaceted problem. They're caused by a shortage of prosecutors and judges; they're caused by an underfunded legal aid system that makes it difficult for accuseds to find competent lawyers, and a host of other problems.
The suggestion that eliminating judicial discretion in giving credit for pretrial custody will have any significant effect on the delays in the system is, with respect, completely and wholly unrealistic.
The second concern—I think you've heard this, and I'll be brief about this—is that it's simply unfair to prevent a trial judge from considering the effect of harsh pretrial conditions. I think there has been reference made to the United Nations standard minimum rules on the treatment of prisoners. Canada endorsed those rules over 30 years ago, in 1975, and with respect to many, there's not even a semblance of an effort to live up to those guidelines. We don't keep untried prisoners separate from convicted prisoners, they're not allowed to wear their own clothes, they don't get regular exercise, and they certainly don't sleep singly in a cell, as the minimum rules require.
The current approach allows a trial judge to take all of these factors into account. It's true that judges will often do so without hearing evidence on the conditions affecting the particular accused. But these conditions are notorious and well known to the judges who are functioning in the communities where they are imposing sentences. To hear evidence in each and every case would be unrealistic. Last year, for example, I spoke to the director of security at one of the detention centres in Toronto. He told me that even as it is, he's subpoenaed to testify in court at least three times a week about the conditions in his institution. One can imagine that if we're going to be hearing evidence about these things in each and every case, it's simply going to be a huge burden on the people who are working in these institutions.
It's always open to the crown to lead evidence to show that the conditions really aren't that bad. I've never heard of a crown doing this, and it's not hard to imagine why not.
The third concern is, as you've heard, that the bill fails to take into account parole eligibility or earned remission. Mr. Alexander, I think, pointed out the math in terms of why there is no benefit, even when you get a two-for-one delay. You can see how there's a huge disadvantage if there's only a one-for-one delay. Consider two offenders who each get a six-year sentence one year after being arrested. The first gets bail, the second doesn't. The first one is eligible for parole after two years. The second will get one year off, so he'll get a five-year sentence. He'll be eligible for parole one year and eight months after he's sentenced, but two years and eight months after he's actually taken into custody. So he ends up serving an extra eight months more than the first prisoner, simply because he was denied bail.
It's our submission that it's simply unfair. You can say it's his fault because he has a record or because he breached his bail, but the reality is that if he breached his bail, he'll be charged with failure to comply and he'll be punished for it. It is a criminal offence. If he has a prior record, that's taken into account anyway when a judge arrives at an appropriate sentence. A prior record is a well-known aggravating factor.
My quick and admittedly far from exhaustive survey of other common law jurisdictions has revealed no other jurisdiction—at least that I'm aware of—that has any law resembling this bill. In the U.K. and some parts of Australia, time spent in pretrial custody is deemed to be time served on a sentence, which is more or less what we do for the offence of murder in this country. At least then it's considered in determining parole eligibility.
The fourth concern is that the bill eliminates all discretion for accused who are detained prior to trial because of their record or because of a breach. The fact that there's a record or the fact that there's a breach may cause the fact of the delay, but it certainly doesn't cause the length of the delay, or have anything to do with the conditions in which the inmate ends up serving time during that delay. To eliminate all discretion in such cases is bound to result in an injustice in some cases. The current common law rules lessen that prejudice by giving a judge discretion. If you're going to increase the prejudice, I think as Mr. Alexander pointed out, you're going to see that being raised during paragraph 11(b) applications to stay proceedings because of unreasonable delay.
The fifth concern simply is this: there has been a lot of discussion that we need this bill because the public doesn't understand why we have two-for-one sentencing or two-for-one enhanced credit. Surely the solution is to educate the public, not to change the law to comport with beliefs that are based on a misunderstanding.
I see I'm out of time. Thank you very much.