The Real Truth About Truth in Sentencing

The Canadian Press is reporting that they have accessed an internal report which indicates that the real impact of Bill C-25 – An Act to Amend the Criminal Code, may be felt unevenly. Specifically, those in rural communities and Aboriginals may bear the brunt of the legal reforms.

The Bill, also known as the “Truth in Sentencing Act,” forces judges to impose 1-for-1 time for credit in pre-trial custody, unless written explanation is provided otherwise. For a number of reasons judges had previously been allowed to provide more credit for pre-trial custody, in practical recognition of the poorer conditions, and the philosophical considerations that an accused was not technically guilty during this time.

In Winnipeg, 2-for-1 credit was provided about 80% of the time, because the average time spent waiting for trial there was 120 days. In Toronto, the average was only 17 days.

Craig Jones of the John Howard Society notes that a significant portion of these cases in Winnipeg are Aboriginals,

They’re poorer, economically, socially, and for various reasons they are less able to advocate for themselves… So they end up spending more time in remand.

Canadian Bar Association spokesperson Eric Gottardi echoed these concerns, indicating that Aboriginals would be adversely affected whether they were in urban or rural detention centres. The Supreme Court of Canada has already acknowledged in R. v. Williams that for Aboriginals,

58 …There is evidence that this widespread racism has translated into systemic discrimination in the criminal justice system…

The significance of this impact for me is that the Criminal Code provides specific provisions allowing for judicial flexibility when dealing with Aboriginal offenders,

718.2 A court that imposes a sentence shall also take into consideration the following principles:
…
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
[emphasis added]

The principles governing this section of the Code were summarized by the Supreme Court of Canada in R. v. Gladue at para. 93. The two main principles behind the section were identified in para. 66,

66 How are sentencing judges to play their remedial role? The words of s. 718.2(e) instruct the sentencing judge to pay particular attention to the circumstances of aboriginal offenders, with the implication that those circumstances are significantly different from those of non‑aboriginal offenders. The background considerations regarding the distinct situation of aboriginal peoples in Canada encompass a wide range of unique circumstances, including, most particularly:

(A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and

(B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.

B. Knazan J. of the Ontario Court of Justice held in R. v. King that the minimum sentencing provisions in ss. 255(1) and 727(1) of the Criminal Code violated ss. 7 and 15(1) of the Charter, and were not saved under s. 1. The Code sections remained in force and effect, but not for Aboriginal offenders on whom notice was served. Minimum sentencing provisions generally do not allow the courts to properly consider the underlying systemic inequality that Aboriginal offenders face during sentencing.

Although most commentators on Bill C-25 concede that it’s far too premature to determine conclusively what the full effect of the new law will be, it will be interesting to see if it upholds Charter scrutiny when dealing with Aboriginal defendants.