Mr. Speaker, I am pleased to have the opportunity to speak in this third reading debate on Bill C-25, An Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody). The Conservatives have given this bill the nickname of the truth in sentencing act, which can also be used to refer to the act.
I have many problems with this piece of legislation. I do not think that will come as a surprise to anyone. I have often had great difficulty with crime and punishment measures put forward by the Conservative government. This bill certainly fits the kinds of concerns that I have expressed since I was elected in 2004.
This legislation would give people, before they are found guilty or sentenced for a crime, who are held in a pretrial remand centre, extra credit for the time they spend in jail before being convicted. This bill puts a limit on that. We have seen over the years in Canada the process develop where regularly, almost automatically, people are given two for one credit for their time in pretrial custody before they are convicted. This bill would limit that to one day for every day served in pretrial custody, and in certain exceptional cases it would be allowed to go to one and a half days for one day.
I have trouble with that. The key reason goes back to one of the fundamental principles of our justice system: the presumption of innocence. We have to maintain our belief in some of these very fundamental issues that have been developed over many centuries in our justice system. I believe that the presumption of innocence is one of the very key and fundamental principles of our legal system.
This bill is a direct challenge to that. It says that folks held in custody before they are convicted of a crime are not eligible for any consideration for the time spent in jail before they are found guilty or sentenced for the crime they are alleged to have committed. We need to keep in mind the principle of the presumption of innocence. When people are held before they are given the opportunity to face their accusers and the charges in a court of law, we are delaying justice, and we know that justice delayed is not justice served.
I am also concerned that this is another attempt to limit judicial discretion. We have often heard from Conservatives their disdain, that is the only word to use, for judges having any discretion when it comes to sentencing. I happen to believe that it is needed in the system. We can be armchair judges and react to decisions by judges on sentencing, but when we have not sat through the full trial, followed the case from beginning to end, heard all of the evidence or made the judgments about the accused, it is altogether too easy to decide that some judge has let someone off with a light sentence.
I believe, for the most part, that judges do their jobs well, and judicial discretion is crucial in their ability to do that important work on our behalf. It is important for us to have a measure of judicial discretion built into our system. This bill takes aim at that by trying to put a limit on the ability of judges to recognize time spent in jail and remand centres before someone is convicted of a crime or has gone to court. Those are two very important principles that this legislation challenges.
The practice of allowing two for one credits for pretrial custody arose from concerns about conditions in our justice system, specifically conditions in pretrial centres. The people who have taken a look at our prison system in Canada know that pretrial centres are among the worst in the country. Conditions are often unbelievably horrible. One of the reasons the system of two for one credits has come to be is the problems in the remand system.
My colleague from Windsor—Tecumseh, when he was speaking at second reading on this bill, quoted a story from The Globe and Mail. It was an article, an op-ed piece, written by a Toronto lawyer which appeared in the April 1 issue.
That lawyer described the pretrial conditions for one of his clients, a man named Pavel. Here is what he said, and I think it bears repeating:
Pavel slept on the floor next to the toilet. He was smaller than his cell mates, and most nights he didn't dare challenge them for one of the two bunks. He spent 20 hours a day locked with other men in a 12 by 8 cell designed for one. The staff was on strike, so his cell was not cleaned for two months. Because he was too small to fight for space at the table, he ate his meals on the toilet. Living in filth, he developed a skin disease. His hair fell out in patches, but he was lucky, at least he hadn't caught the tuberculosis that was spreading throughout the detention centre.
That is a graphic example, and maybe it is a particular example given the particular circumstances in that detention centre at the time. I believe it was in the Don Jail, but I could be wrong about that.
We know that overcrowding is a regular feature. Certainly in the pretrial centres in British Columbia, double bunking, triple bunking is the usual practice. We know the conditions in the pretrial centres in British Columbia are absolutely unconscionable. They go against everything Canada has committed to under international agreements in terms of its obligations to a standard of one prisoner per cell with full facilities.
I think most of us can appreciate why that would be the best circumstance for someone in custody in our country. We are not making that standard in many jurisdictions in Canada. I think that is why the practice of two for one credit largely has become automatic. It has been tested in the courts. The member for Hochelaga read from the decision from the Supreme Court of Canada on two for one. The judges noted that it came from a concern about conditions. He also noted they were concerned about being too rigid and cutting back on the ability of judges to exercise discretion given the circumstances of the case before them.
I think we need to really pay attention to conditions in the remand centres and in our prison system. We know there are no programs in provincial remand centres. Given the harsh conditions, given the fact that there are no programs for people, this is a very difficult place to be incarcerated. It is not that this should be easy, but this is particularly troubling given our hopes for standards in those areas and given the kinds of conditions that have developed in this country.
The federal correctional investigator, Mr. Howard Sapers, has expressed concerns about the situation in our federal penitentiary system, the system people go to after they have been convicted, after they get out of a pretrial centre if they have been held prior to their sentencing. We know the situation there is not much better. There are many concerns about what is going on in the federal system once people get out.
Mr. Sapers recently told the committee that was looking at this bill:
It bears noting that the pervasive effects of prison crowding reach far beyond the provision of a comfortable living environment for federal inmates. It stretches the system beyond its capacity to move offenders through their correctional plans in a timely fashion. It has negative impacts on the protection of society itself, as offenders are incarcerated for a greater portion of their sentence, only to be released into the community ill-prepared and then supervised for shorter periods of time.
He continued:
As it stands now, offenders have to contend with long waiting lists for programs; cancelled programs because of insufficient funding or lack of trained facilitators; delayed conditional release, because the lack of capacity to provide programs means offenders cannot complete their correctional plans; and more time served behind walls without correctional benefit. This situation is becoming critical. More and more offenders are released later in their sentences too often not having received the necessary programs and treatment to increase their chance of success once in a community.
That is the situation in our federal system after people are sentenced and incarcerated. It bears repeating that much of what Mr. Saper is talking about is not even a consideration in the pretrial system. That gives rise to the very serious concerns that people have had about pretrial incarceration and the conditions people face in those systems.
There were issues raised at the committee when it was looking at this bill about how this legislation would affect particular groups in our society.
Mr. William Trudell, the chair of the Canadian Council of Criminal Defence Lawyers, brought a particular example of how this law might affect women in Yukon and women who are in the criminal justice system. He reported on what a member of the council had reported was happening in Yukon, how this two for one credit was being applied there and why it was important. This is what the Canadian Council of Criminal Defence Lawyers representative said:
Let me just share with you what our Yukon representative said. This kind of puts it in perspective. Men in the Yukon receive 1.5 to one and women receive two to one. This is because they are housed together in one jail. Because the majority are men, the men have access to any programming that is offered--very little, the library, the yard access--whereas women are kept separate and usually get one hour out of their dorm in a day. In addition, there is only one halfway house that provides bail beds, and they do not accept women. Therefore, women have less opportunities for bail than men.
That example makes it quite clear that there is a necessity for taking into account the conditions that women in Yukon face when they are held before trial. The situation is very different from that of men in Yukon. Therefore, the system has developed where there is a different credit for time being served pretrial in Yukon. When there is little or no programming, and the programming in this case was access to a library and an exercise yard and the women did not even really get that, it shows some of the problems that arise when we try to put hard and fast limits on the sentencing provisions, on the two for one credit, and the discretion of judges to respond to the conditions in the system.
We need to consider these particular situations. Aboriginal people are often overrepresented in our criminal justice system and therefore, it is logical to assume that the kind of situations we are discussing in this legislation are more likely to affect aboriginal people in Canada. Certainly we have heard time and time again how the overrepresentation of aboriginal people in our criminal justice system is something that needs to be addressed, it is something that extends from deeply entrenched and systemic racism in this country, and yet this legislation takes no consideration of those factors in looking at the situation of our criminal justice system.
Although we recognize that the application of two for one is often automatic, it is not universal. In the Khawaja case, the judge made a very deliberate statement of not applying any presentencing credit for the time that Mr. Khawaja served in jail and was very clear about why he felt that would be inappropriate. I have to say that the discretion can go the other way, as well. Certainly, Justice Rutherford in that case took it upon himself to make that kind of decision in that case. It is another example about why judicial discretion is an important factor in all of this.
There was an attempt to amend the legislation at second reading but, unfortunately, none of the amendments were accepted by the other parties. I want to thank the member for Windsor—Tecumseh for making a valiant effort to do that.
We could be doing other things to fix the system. We could be trying to ensure a speedy trial for people who are charged with a crime. Prosecutors are overloaded. The provincial government in British Columbia took steps recently to reduce funding for prosecutors, which was absolutely the wrong direction in which to go. If anything, prosecutors need more resources so that they can do their work in a timely fashion and ensure that the system is supported through their able advice and work. Unfortunately, that is not the case in many of our jurisdictions. There is nothing in this bill that would increase the resources available to provinces to ensure appropriate prosecution, to ensure the timelines of that, or even to improve conditions in provincial remand centres.
We have seen the difficulties with legal aid in many jurisdictions. In Ontario legal aid lawyers are taking a very strong stand against the remuneration they are paid. It is another example of a flaw in our system that complicates the system unnecessarily and could be addressed if governments would provide appropriate resources for that. How many people are in pretrial because they are not getting the appropriate legal advice they need and do not have the kind of access they need to a legal aid lawyer who could properly attend to their situation and their case.
Another concern is that the legislation itself may increase backlogs by its very application. The concern is that if we are removing discretion and making the process of getting increased credit for time spent presentence and that a more formal application process for that time is required, that will require more detailed sentencing hearings in the process. Witnesses would need to be called. That process in itself would make certain cases go longer.
This is something that has not been thought through particularly carefully. Also, there is the concern that if we are removing the possibility of this kind of credit, there will be fewer guilty pleas in the system and it will cause the need for more trials and longer and more complicated trials just because of that.
That is another crucial factor we need to take into consideration with the bill before us. It seemed like a good idea until it was fully implemented and some of these problems came to the fore. It does not have the desired effect of making the system fairer or of speeding up the system. Surely one of our goals in terms of the delivery of criminal justice in Canada is to make sure that people have timely access to that, and that the time, if they are being held before their trial, is very limited, that they proceed to trial and have a decision on their case as quickly as possible. I do not think we do enough to ensure that actually happens in our current system.
Maybe if the legislation had said that we might take measures to reduce the credit offered for pretrial sentencing conditionally, if progress was made about how long it takes to go to trial in Canada, if progress was made on conditions regarding overcrowding and programming in pretrial, if there were specific criteria established to judge the circumstances of the criminal justice system and say that the standard that is developed for very good reason has been two for one and because of the conditions, it has almost been automatic, but if certain benchmarks are made in the system, we might consider reducing that.
That might have been a better piece of legislation, to make it conditional on our performance in delivering a fair and just criminal justice system. This bill once again makes an arbitrary decision about what would be appropriate in these circumstances and limits the discretion that is available in these circumstances. I am not sure that is the appropriate direction in which to go.
Across the country there have been stories about people who deliberately delay their trial so that they can take advantage of this two for one sentencing offer. A lot of these stories are anecdotal. There was little hard evidence produced at the committee to support that it was going on. Many lawyers said they would see that as misconduct if they were recommending to a client to do that, or if they themselves were delaying a trial just to take advantage of that sentencing option.
That is the reason for moving on this. We need to see some clear evidence that that is going on. Until then, I cannot accept the fact that it is. I have real problems with this. I have real problems with the conditions in our prison system and in our pretrial facilities. I will not be able to support this legislation.