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OO RUEHGA RUEHHA RUEHMT RUEHQU RUEHVC
DE RUEHOT #0259/01 0911724
ZNR UUUUU ZZH
O 011724Z APR 09
FM AMEMBASSY OTTAWA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 9286
INFO RUCNCAN/ALL CANADIAN POSTS COLLECTIVE PRIORITY

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are either withdrawn by the Crown or resolved without a conviction.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