LEGISLATING EQUALITY/UNFAIR CONSEQUENCES
New legislation has been introduced providing that as a general rule, persons denied bail receive credit for pre-trial detention on a one-to-one basis when sentenced. This initiative displaces the discretion the judiciary had had to award greater credit for time served to those denied bail while awaiting trial. Traditionally, persons sentenced to a prison term who had been denied bail would receive credit on a two-for-one basis. In other words, an individual who was to receive an 18 month sentence but who, having been denied bail, had already served two months in preventive custody would be sentenced to 14 months after receiving credit on a two-for-one basis for time (2 months) already served. This approach was developed to reflect the reality of pre-trial detention. The conditions of confinement for persons denied bail are harsher than those found in a regular prison population. Detainees awaiting trial are confined to their cells for substantial periods of the day, and have access to virtually none of the programs (education, vocational training) available to regular prisoners. Further, it is generally agreed that the psychological stress of an impending criminal trial is exacerbated by confinement to a cell. Awarding credit for pre-trial custody on a greater than one-to-one basis reflects core values inherent in our criminal justice system. Firstly, those awaiting trial are presumed innocent and as such, we generally favour the granting of bail pending trial. Secondly, where bail is denied, we tend to recognize, as mentioned above, that the conditions of confinement are far harsher than those imposed on a regular prison population. Finally, many persons denied bail are simply unable to provide the court with sufficient guarantees, often monetary, which would justify their release pending trial. What then was wrong with awarding credit for time spent in pre-trial custody on a two-for-one basis? The answer wont be found in Bill C-25. We hear a lot about “getting tough” on crime, but are we being fair about it?