Good afternoon, and thank you for this opportunity.
I'm going to start by addressing some of the concerns that were raised by members of Parliament in the House on April 20 with respect to the bill. Specifically, I mean unclogging the court system, lost rehabilitation opportunity, and the public's lack of confidence in sentencing.
There are three primary reasons why this bill is problematic, in our view. First of all, it results in discrimination in sentencing because pretrial custody does not count toward parole eligibility, as you know. I'm sure others will expand on this further. That's the main concern there, that it will result in discrimination in sentencing. Secondly, the bill disregards our sometimes medieval jail conditions and obligations in that respect. Finally, the bill does nothing to unclog the court system.
Sentencing cannot be homogenized. For it to be effective, fair, and just, it has to be individualized. The courts have confirmed and repeated this principle. While you, as our Parliament, have the duty to enact legislation that's in the best interests of Canadians, it is important to know that the courts have, with thorough, thoughtful, and rational analysis, ruled that there can be no mechanical formula for how we count pretrial time towards sentencing. Yet this bill tries to do exactly that. It pre-sets a formula for sentencing so that a robot could do the job. That's not the kind of sentencing that we want, in my respectful opinion. Judicial discretion is vital and must not be tampered with in this manner. Generally, our judges do consider all of the factors that our members of Parliament have raised in the House. The bill does not give judicial discretion, and it is blind to the external factors that should be considered in sentencing but are not under the control of the convicted person.
Lost rehabilitation opportunity has been cited as a reason to keep people in penitentiary longer. In my submission, you cannot punish people for the policy decision of our government to not have rehabilitation and education resources available in provincial jails and in remand centres. In fact, the lack of resources at remand jails is one of the reasons for giving enhanced credit. Yet through this bill, Parliament is saying that this very lack of resources, this governmental policy decision, is the reason to punish people further and keep them in penitentiaries longer. This is not right. I hope you'll be reassured by the fact that judges have given less than two for one credit where rehabilitation and education resources are available at the remand centres. So they do take that into consideration.
Some members of Parliament have argued that the current system clogs up our courts and that this bill will address that problem. I want to be clear that this bill will not unclog the court system. What's more, it may cause further delays. The idea that the system is filled with people who want to stay in remand custody to get generous enhanced credit at the end of their conviction is simply an unsubstantiated myth with no valid evidence. Our delay problems are not caused by hordes of these people, and they will not be resolved by taking these people out of the picture. I ask you to please disabuse yourself of this fallacy. A third- or fourth-hand story does not speak for everyone, and it does not speak the truth.
I have never stood before a court and asked for an adjournment for a client in custody simply to keep them there longer, so I can get greater credit for them at the end of the process. But I have stood before courts on countless occasions for clients who are in custody and asked that we set a trial date, even though the disclosure wasn't complete, so we could move the matter forward. It has been the crown attorneys and the judges and the JPs who have refused to set the trial date for their own reasons, with which I generally disagree. But that is the reality and that is why there are often delays at that stage.
In my opinion, the premise that delays are fundamentally caused by accused people who want to get enhanced credit is wrong, and I respectfully submit that it is irresponsible and offensive to perpetuate this myth. The courts will not be unclogged with this bill.
The public's lack of understanding of the system also does not mean that we must come up with a simpler system that is unfair and ineffective. My colleague, Matthew McGarvey, will address that issue further. I just want to make the point that just because something is hard for the public to understand doesn't mean we have to replace it with something simpler if that something is unfair and ineffective.
In conclusion, I would emphasize that there are considered, rational, just, and thoughtful reasons for enhanced credit. If Parliament enacts this bill, then our representatives are failing in their duty to do what is best for all Canadians. We can't dodge our duty to have a fair and effective system and to explain that system to the public. Our obligation as lawyers--and, I would submit, your obligation as leaders and parliamentarians—is to change the system in a more real, albeit more challenging, manner.
Ultimately the public will pay for the mistake if this bill is enacted. The court system might in fact be more clogged at the end, or more resources might have to be spent on jails, because people will stay in jails longer.
I urge you, our leaders, to please live up to the challenge and to your obligation to improve jail conditions, to address the real causes of crime, and to help move matters faster in courts rather than taking a supposed popular but perhaps misguided stance on this issue.
Thank you very much.