Double trouble

Rosie Mullaley
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Justice Eliminating two-for-one credit could mean twice the burden for our court and prison systems

Darryll Hannaford admits it - there have been inmates who have purposely delayed their cases to get double credit in sentencing.

But not many, he says.

"Yeah, some did (abuse it), but you'll get people who abuse everything everywhere," says Hannaford.

"But the majority of guys just want their cases over and done with."

Prominent St. John's lawyer Jim Walsh doesn't like the fact that Bill C-25, which was given Royal assent last week, takes away judges' discretion. - Photo by Rosie Gillingham/The Telegram

Darryll Hannaford admits it - there have been inmates who have purposely delayed their cases to get double credit in sentencing.

But not many, he says.

"Yeah, some did (abuse it), but you'll get people who abuse everything everywhere," says Hannaford.

"But the majority of guys just want their cases over and done with."

Hannaford was given six months' credit for the three months he spent in remand for crimes such as thefts and fraud. In a sit-down interview with The Telegram earlier this week at Her Majesty's Penitentiary in St. John's, he said he doesn't agree with the federal government when it says double time is being eliminated, in part, because people who are accused deliberately drag out their court cases to get two-for-one credit on sentencing.

In most instances, Hannaford said, delays in court cases are due to lawyers' and judges' scheduling conflicts.

It's routine in provincial court in St. John's for defence lawyers to postpone cases because they either haven't received all the evidence from Crown prosecutors or have other cases scheduled.

Crown prosecutors, meanwhile, are often waiting for information from the police or have other matters to deal with.

Judges have their hands full, as well. In St. John's, for example, the system is short three judges.

"I was arrested in July and I was trying to get sentenced and have it over, but lawyers kept putting it off and putting it off," Hannaford said.

"In three months, I had a half-dozen Legal Aid lawyers and five different judges before my case got settled."

Bill C-25 - which was given royal assent last week and will take effect in the near future - capped the amount of credit given for time served to straight time.

But even before it became law, it was one of the most talked-about issues in legal circles.

From inmates to lawyers to politicians, everyone has an opinion.

St. John's lawyer Jim Walsh doesn't like the fact that the new law takes away judges' discretion.

"They have an independence that has to be upheld," said Walsh, who works as a defence lawyer, but is also often called upon by the Crown.

"All are appointed to positions to be the neutral party and operate within the code. They're in the best position to decide whether or not pre-trial custody should be given (double-time credit).

"But if given discretion, then you get this clamour from society and they put pressure on politicians, and then they take away that discretion. And that's tough."

Walsh said judges look at the unique circumstances of each case, including the details of the incident and the history of the offender.

"Parliament is saying now, 'We're going to tie your hands,'" said Walsh, who prosecuted Joey Oliver's murder case, "and that's tough because there's always an individual set of facts which makes each case different from the next."

The Canadian Bar Association (CBA) - which represents some 37,000 lawyers across the country - wrote the Senate committee examining the issue last month to say discretion as to how much credit is appropriate should remain with judges.

"We are in Canadian courts every day," said Eric Gottardi of the CBA's national criminal justice section. "We know that judges do well at - and are best placed to arrive at -a just and appropriate sentence once an offender is found guilty, taking into account all the factors in each case, including the length and circumstances of any pre-trial situation."

Provincial court Chief Justice Mark Pike declined comment on the issue, saying that "as members of the judicial branch of government, it would be inappropriate for judges to comment on the merit of any legislative initiatives or proposals of this sort."

But St. John's lawyer Jeff Brace said it is essential judges be allowed to credit inmates for time on remand.

"When judges gave two-for-one," he said, "they recognized the time you've spent on remand, which was a time when you were presumed to be innocent."

Brace also said giving offenders two-for-one credit for pre-trial detention was meant to compensate inmates for "dead time" spent in overcrowded jails lacking proper rehabilitation and training programs.

Hannaford can vouch for that.

The 29-year-old was arrested in July and charged with trafficking, break and enter, fraud and theft. He was given double credit for the three months he spent on remand, leaving 45 days remaining on his sentence.

He's still on a waiting list for programs.

"At least you got a chance to get into something here (in the general population)," he said. "In remand, you get nothing. This place is not fit."

A HMP correctional officer who didn't want to be identified said guards are expecting an influx of new inmates, thanks to the new law. There are concerns that the already overcrowded, aging prison won't be able to handle them.

"If they think it's going to be a deterrent, it's not," the officer said. "All it will do is jam more offenders in here for longer periods. It's a time bomb as it is now."

There are 178 prisoners at HMP - nearly 40 over the official capacity.

According to an article in the Winnipeg Free Press, the Correctional Service of Canada estimates eliminating two-for-one credit will move another 3,000 men and about 300 women into the nation's jails.

But the federal government argues that double time contributed to the growth of the remand population, which is now larger than the convict population in Canada's provincial and territorial jails.

While Stephen Harper's Conservatives plan to renovate prisons and build new wings as a short-term approach to managing the increase, there are no plans to improve HMP in St. John's, despite a widespread acknowledgment that it is inadequate.

There are also concerns the new law will put a strain on an already crowded court system.

In a statement presented to the Senate committee before the bill became law, the Canadian Association of Crown Counsel said Bill C-25 doesn't address the reasons why enhanced credit for pre-trial custody was given.

While the purpose of the association - which is made up of Crown prosecutors and civil lawyers and notaries employed by the Crown - is not to argue whether the new law reflects good or bad policy, it does offer input on how it will likely affect front-line lawyers.

St. John's Crown prosecutor Sheldon Steeves, president of the provincial organization, said while eliminating two-for-one credit may speed the wheels of justice, it will put pressure on prosecutors and the courts to deal with matters faster, which will add to their workload.

Now that double time has been eliminated, he said, there will probably be more bail hearings, as fewer accused will want to be detained.

"Our bail courts are already overburdened as it is," Steeves said. "They may need more resources to deal with this."

The association also believes judges in overburdened jurisdictions may feel the need to give lower sentences to compensate for the reduction of pre-trial custody.

"It may reduce the number of people in the trial stream and create capacity for the more serious case, and those who actually want a trial."

St. John's lawyer Bob Simmonds denounces Bill C-25 as nothing more than a minority government's desperate bid to gain public support.

"It's a way to get votes," Simmonds told The Telegram matter-of-factly, shortly after the bill was introduced in March.

He said statistics and studies have shown that harsher prison sentences don't reduce crime.

"Reformation and rehabilitation is the best way."

Earlier this week, federal Justice Minister Rob Nicholson told The Telegram inmates can get the training they need to be rehabilitated in federal institutions.

"The argument is that at many of these provincial detention centres and correctional facilities, they don't have (those services in remand)," Nicholson said in a recent phone interview.

"This is why them hanging around just because they're getting 2-for-1 credit isn't helping them in getting rehabilitated. If they're going to be sentenced, get sentenced and start getting them the help they need."

He couldn't say whether the new legislation will bring crime rates down.

"Look, I don't think anybody commits a crime with the hope they're going to get two-for-one credit," Nicholson said. "But I know it'll increase people's confidence in the justice system. It hurts the criminal justice system in this country when people don't have truth in sentencing. They can't figure out what is going on with our criminal justice system. That hurts us in the long run. I think it works on every level."

Hannaford doesn't think any of it works on his level. He thinks more focus should be put on trying to figure out why people commit crimes and finding them help, rather than punishing them. He wishes more people understood that.

"Everybody does something wrong in life. People are putting you down and want to lock you up for good because you screwed up," Hannaford said. "A lot of people don't understand what it's like. If they did, they wouldn't be saying what they're saying. Things would be a lot different."

Organizations: The Telegram, Canadian Bar Association, Senate committee Winnipeg Free Press Correctional Service of Canada Canadian Association of Crown Counsel

Geographic location: St. John's, Canada

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Recent comments

  • Taxpayer ll
    July 02, 2010 - 13:17

    Sure why don't we just let them all go home, that way there would be no strain at all on the poor 'ol justice system.

  • Taxpayer ll
    July 01, 2010 - 19:57

    Sure why don't we just let them all go home, that way there would be no strain at all on the poor 'ol justice system.