Madam Speaker, we are confronted with an interesting phenomenon in this piece of legislation. It seems fairly straightforward. It is a very small piece of legislation. There are really only two sections to it when we actually analyze it.
What it does is bring to the fore a debate and an analysis that we as parliamentarians should be involving ourselves in to a much greater degree than we have up to this point.
The reason we have not done so up to this point with the government--and I would have to be critical of the prior Liberal administrations over the last decade or so--is that we are confronted with this reality: we have declining crime, but increasing populations in our prisons, both at the provincial level and at the federal level.
Another phenomenon that I think very few members of this Parliament understand is the shift that has occurred over roughly the last 10 years in the number of people incarcerated in pretrial detention centres, as opposed to those who are incarcerated after sentencing, whether at the provincial level or at the federal level.
The ratio of the pretrial, pre-sentencing, custodial population and the post-sentencing population has reversed itself. It used to be roughly two to one; that is, one-third of the population in incarceration in this country at any given time would be in pretrial custody, and two-thirds would have been incarcerated post-sentencing and would be in our federal prisons. I want to be clear that I am only talking about the adult population.
We have a provision within the Criminal Code that allows our judges, as a sentencing guideline, to take into account the pretrial custody period of time, and the conditions, in sentencing after conviction.
Over a period of time, as the number of individuals in pretrial custody shifted to such larger percentages and a corresponding deterioration occurred in the conditions in those detention centres, a practice grew up in our courts--and this is true at provincial court levels across the country, in the territories and at the federal superior court level--for the judges to begin universally granting credit for that pretrial custody in excess of a one-to-one ratio.
In fact, by the time this bill came before this House, it was fairly common for credit to be given--on average, for all sentences--at close to a two-to-one ratio. Actually, as we heard in the committee, it is somewhat less than two, but it is right around there.
Then in some extraordinary cases over the last two or three years, we also had the phenomenon developing across the country of credit being given at a three-to-one ratio. The reason for that was not only the basic humanity of our judges, but also our international obligations: as a nation, we have signed on to protocols to treat our prisoners in a humane fashion in both pretrial settings and post-sentencing settings.
One of the specific provisions in those international protocols is that prisoners serve their time in cells that are designed for one person and that have only one person in them. What has occurred in both the pretrial custody setting and more and more in the post-sentencing setting is that we are finding people in ratios greater than one to one in the cells. As often as not, it is three to one, and in some cases it is four to one.
I am going to concentrate my remarks on some of these detention centres, because this evidence was before our courts on a regular basis. Some of them are very old, there is no programming in terms of any education and sanitary conditions generally are poor. We can go down the list.
As the judiciary across the country heard evidence on this in individual cases, the practice of granting two-to-one credits became very common. It was almost universal. It was not mandated by any statute, whether our corrections statutes or the Criminal Code. It is certainly not in any sentencing guidelines in the code. It was simply because judges, on an individual basis, knew how bad the conditions were in the detention centres where they were placing people.
That was all about the judiciary trying to send a message to the political level of government, the administrative level of government, that they had to do something about this. We have signed on to these international protocols and have the responsibility to treat prisoners humanely, and we are not doing it. That is really the message that was going out.
The message that was received was that judges were just going off on their own and playing around with this. I have heard sometimes offensive comments from legislators at both the provincial and the federal levels attacking our judiciary, believing that somehow they were granting two-to-one and three-to-one credits just on whims.
That is not the reality. We have an excellent judiciary. I have said this in the House before and I am going to repeat it again. If we do not have the best judiciary in the world, there are none that are better. That is true whether we are at the provincial court level or at the federal level of judicial appointments.
They do not do this on a whim. For the better part of a decade they have been wanting to send the message to the legislators that we are not getting it, because we are not deploying necessary resources. Not only are we not deploying the necessary resources to clean up the pretrial detention centres, but at this federal level of government, in this chamber--and this has been true of not just the Conservatives, although they may be going a little faster than the Liberals--we are consistently going quite rapidly toward increasing the number of charges that would result in jail times. We are also increasing the length of time that people are spending in jail.
The result is that we have this backlog in our courts, as more and more defendants are not pleading guilty. We have rules that are developing that require greater disclosure. That again is justifiable in terms of a fair trial, but it is taking longer for cases to get through, so we have this growing population, now at almost a two-to-one ratio, in pretrial custody in conditions that by international standards are not humane. Our judges want the legislators at both the provincial and federal levels to do something about that.
Instead of doing something about it--instead of deploying added resources or perhaps using other mechanisms, such as community programming, to divert prisoners from lengthier sentences--what we do is respond with this piece of legislation, in effect saying to the courts that we do not trust their judgment on how to handle pretrial credits.
This bill really is quite disrespectful to judges in that regard. It says that we are going to impose mandatory requirements. If this bill goes through--as it almost certainly is going to, because the other three parties are clearly going to support it--we are going to mandate only one-to-one credit as the standard. The effect of that is to lengthen the time people will spend in post-trial custody.
In circumstances that are justifiable, the bill will allow judges to go to 1.5-to-one credit, even though, as I said earlier, the standard across the country is now closer to two to one on average.
I was very clear in committee to try to get this information. There are no additional resources being planned to assist the provinces because all the pretrial detention centres, with very few exceptions in the territories, are operated by the provinces. There is absolutely no plan on the part of the government to provide the provinces with additional resources for better quality settings for pretrial detention centres. The conditions will remain as they are and get worse at the pretrial level.
We heard from lawyers who appeared in committee that we inevitably would be faced with a charter challenge. We are not in keeping with the international standard on to which we have signed. We already know what the standard is. It is not like we can argue we are close to it. We are not and we know that. The standard is a very clear one at the international level. That is offensive to the section 12 of the charter, which requires us not to provide for cruel and unusual punishment, and it amounts to that.
If we proceed with this, all we will do is provide the scenario or circumstances for a while. I think the courts will do what they can to provide the 1.5 credit because the circumstances will be bad enough to do that. Inevitably, there will be a charter challenge and I have believe that challenge will be successful.
If a charter challenge is successful, there has to be a result to that. There has to be a diminution on the part of the court to compensate for the charter breach. We then are going to find and more and more judges making a finding of a charter breach and releasing more and more prisoners from custody. I do not find any appreciation on the part of the Minister of Justice of this.
Judges will provide bail when they would not have otherwise or they will release them, maybe even dismiss the charges because of the breach of the charter, specifically section 12, cruel and unusual punishment. That is coming down the road. All this bill does is hasten it coming.
I want to be quite clear about this. Even if we do not pass the bill, that will probably happen, unless the federal government provides additional resources to divert or build more prisons. Again, there is no indication that it will do that.
I want to talk about another consequence of the legislation. Maybe one has to have practised law for a while to appreciate the reality of this. If this goes through as proposed and the courts can grant, in justifiable circumstances, an extension from the 1 to 1 credit to the 1.5 to 1 credit, much more evidence will have to be presented to the court. Even if there is a guilty plea, instead of sentencing taking on average—