STREAMLINING SENTENCING TO CUT TRIAL TIMES

UNCLAS SECTION 01 OF 02 OTTAWA 000259 SIPDIS SENSITIVE E.O. 12958: N/A TAGS: PGOV KCRM CA SUBJECT: STREAMLINING SENTENCING TO CUT TRIAL TIMES REF: OTTAWA 198 ¶1. (SBU) Summary: Partly in response to concerns about the length of the trial process in the Canadian justice system, the federal government on March 27 introduced proposed legislation to limit the judicial practice of, effectively, "rewarding" newly convicted individuals for time already served in custody. The government argued that the bill would impose more "truth" in sentencing, bring greater certainty and clarity to the sentencing process, and help address serious delays in the trial system. Chances of passage are good, unless the 40th Parliament comes to an early end in coming months. End summary. DELAYS BOGGING DOWN THE SYSTEM -------------- ¶2. (U) According to a report by federal and provincial justice ministers on "Justice Efficiencies and Access to the Justice System," the Canadian justice system is taking ever longer to resolve adult criminal cases. The report cited significant increases in the period from first to last court appearance, from an average of 137 days in 1996 to 226 days in 2003-2004. The mean processing time for the least complex cases (those with a single charge) increased from 121 to 215 days during the same period, while those for multiple charge cases rose from 157 days to 236 days. The number of court appearances has also risen, from an average of 4.1 appearances per charge in 1993-1994 to 5.9 in 2003-2004. ¶3. (U) The report noted that courts only resolved 9 pct of cases entering the system by trial, with a median time for such cases of 150 days. Of the 91 pct of cases that do not go to trial, 41 pct are either withdrawn by the Crown or resolved without a conviction. Even so, these still consumed a median 103 days for resolution and required an average of 4.9 appearances per case. ¶4. (U) An important consequence of greater trial delays has been an increase in time spent in custody by those detained pending, or during, trial, often in provincial short-term detention facilities without access to recreation, work, or rehabilitative programs. The proportion of total admissions to provincial correctional facilities for individuals on remand increased from 37 pct in 1986-1987 to almost 60 pct in 2000-2001. Courts have generally responded to lengthening time in remand by awarding enhanced "credit" for time served in pre-conviction custody when determining prison sentences -- often up to two years for every year already served in custody, but as much as 3:1 in rare cases. NEW LEGISLATION -------------- ¶5. (U) In response, the federal government on March 27 introduced proposed new sentencing legislation (C-25),one of five justice bills it has introduced since January in the 40th Parliament as part of the governing Conservatives' anti-crime and national security agenda. (The other four bills would raise sentences and create new offenses for gang and organized crime, impose mandatory minimum sentences for serious drug crime, restore two lapsed provisions of the 2001 Anti-terrorism Act, and crack down on identity theft.) ¶6. (U) In introducing the draft bill, Justice Minister Rob Nicholson noted that the government is "following through" on its election commitment to ensure that individuals serve sentences that reflect the severity of their crimes, as well as bring greater certainty and clarity to the sentencing process. Public Safety Minister Peter Van Loan argued that the bill would "restore a little bit of balance to our justice system and ensure there's a little bit of truth in sentencing, [that] people get the time they deserve." THE CURRENT PRACTICE QTHE CURRENT PRACTICE -------------- ¶7. (U) According to section 719 (3) and (4) of Canada's Criminal Code, a term of imprisonment commences on the day on which a convicted person is taken into custody and judges "may take into account any time spent in custody as a result of an offence." The ability of courts to hand out enhanced credit for time already served became part of the Criminal Code as part of bail reform in ¶1972. Although Canadian judges can opt not to award enhanced credit, they have generally adopted the practice of awarding credit at a two for one ratio. The Supreme Court of Canada has ruled the practice generally fair. ¶8. (U) Critics of the practice have argued that enhanced credit gives offenders an incentive to extend their time in pre-sentencing custody in return for a shorter overall sentence, delays trial start dates, and clogs provincial and territorial remand centers. They have further claimed that the system fosters public confusion and cynicism over apparent "leniency" in sentencing, especially if the court provides no explanation at the time of sentencing. OTTAWA 00000259 002 OF 002 CUTTING OFF CREDIT -------------- ¶9. (U) The proposed new legislation would amend the Criminal Code to provide courts with sentencing guidelines and limits for granting credit for "time served." Specifically, the legislation would: -- make it the general rule to cap the credit for time served at a 1:1 ratio (i.e. one day of credit for each day spent in custody prior to sentencing); -- limit the pre-sentencing credit ratio to a maximum rate of 1:1 for individuals detained because of their criminal record or because they violated bail, with no enhanced credit granted to such individuals beyond the 1:1 ratio under any circumstances; and, -- permit a credit of up to a 1.5:1 ratio only where circumstances justify it but require courts to explain those circumstances. COMMENT -------------- ¶10. (SBU) Although the new legislation may provide a fresh incentive to move cases more quickly to trial, the broader problem remains the glacial pace of Canadian justice, as evidenced in the 2008 terrorist conviction of Momin Khawaja, which took five-and-a-half years to come to trial (reftel). Moreover, the emphasis of this proposed legislation is more on the politically sensitive issue of sentencing than on the timeliness of the court system as a whole. Nonetheless, all political parties support the bill in principle, and chances of passage are high -- unless the 40th Parliament terminates early in an election in 2009. The Liberals, particularly, are anxious to avoid appearing "soft on crime" in advance of what is likely to be a closely-fought federal election within twelve months. Crime will again be a major ballot-box issue, particularly in Ontario, British Columbia, and Quebec, where anxiety about crime and gang violence continues to rise. BREESE