Saturday, September 06, 2008

If You Can Be Accused of the Crime...You Can Do the Time

That's how the saying goes is it not?

Well in Alberta, it is not only the status quo but it is apparently the express intention of our Minister of Justice to make this an official provincial motto.

I quote Minister Alison Redford from the erudite dissertation by the Calgary Sun's Rick Bell, "No Hugs For Thugs" as follows:

"It's fine if we have more people in jail. I want to keep more people in jail in remand."

With all due respect Madam Minister, perhaps your focus should be less accused people in jail, and more convicted after the fair trial they are entitled to in our free and democratic society:

"Alberta facilities now hold more people waiting for court dates than those servicing sentences. According to the solicitor general's office, 1,513 people are currently in remand waiting for trials or sentencing compared to 1,107 actually serving sentences in provincial jails."

You don't have to be an accused person to know that routine criminal matters in Calgary are regularly taking a year to set for trial from the date they are it is no small event for a person accused of a crime to be denied bail.

Now, to be fair, persons detained in custody get preferential trial dates so they are often waiting for trial for much shorter periods...and hey...what's a few months give or take in 23 1/2 hour lock-up wearing communal blue coveralls with access to basically no work, school or recreational options if you are waiting to be found innocent?

I am sure the Minister would have no issue taking a few month holiday in the Calgary Remand Centre...

Ms. Redford says that she is frustrated by what Mr. Bell refers to as a "gong show" of a justice system and that she wants us to get back to "simple principles of justice." I for one would have preferred Alberta's top lawyer to stand up for our system to the hyperbolic pandering of a so-called journalist, but that ship having sailed, let's take a look at the simple principles our Justice Minister speaks of:

"I don't believe just because someone is arrested they should be entitled to bail immediately. What people are entitled to is a bail hearing and there doesn't have to be agreement between defence counsel and Crown counsel to give them bail.

"It's fine to be presumed innocent until proven guilty but a bail hearing is not like a trial and the reason we have bail is to ensure those people who are not likely to re-offend and who will show up for their court date can, in some cases, continue to work. I don't think that's where bail is now."

Wow. Okay, people are not just entitled to a "bail hearing" they are entitled to not be denied reasonable bail without just cause...or at least that's what the Constitution says. And forgive me for arguing, but the reason we have bail is to ensure that innocent people do not serve jail sentences for crimes they have not committed. Or, for that matter, that guilty people do not serve jail sentences where other fit sentences would suffice.

It is only where "just cause" is shown that a person should not get bail (subject to certain reverse-onus situations), otherwise the presumption of innocence is meaningless. Reasonable bail is not a work permit for "some cases" it is an essential element of a just system of criminal law and a vital protection of the right to life, liberty and security of the person (also protected in the Constitution).

And since we are talking simple be presumed innocent until proven guilty is about as fundamental of a principle as our system has. "It's fine" to have a centuries old building block of due process and the rule of law as part of our criminal process? That is an awfully flippant way to speak of another right that is, you guessed it, specifically protected in our Constitution.

Now it's hard to argue with the Minister saying people on bail should be abiding by the conditions...and not excused for breaching. Of course, they are presumed innocent until proven guilty of that too, so, see above.

Also, I don't personally agree with minimum sentencing, but I don't have much problem with a Justice Minister advocating such a position. But then this comes along:

"I want people to be given one to one credit for remand, end of story. Not two for one, not three for one. Every day in remand should be one day off your sentence, not three days off your sentence.

"What you have right now is people delaying getting to trial because they know they're getting two-for-one credit or three-for-one and, all of sudden, they're sentenced and they're out in two or three months. That is wrong."

First the normal two-for-one credit for remand time, by not having a backlog of a year to get to trial, the "system" could eliminate months and months of "benefit" to offenders for their pre-trial custody.

That said, convicting and sentencing them quicker will not result in them being incarcerated any longer. The two-for-one credit is meant to mimic the statutory remission that offenders get when serving time. Why should a person in jail prior to conviction get less credit for their time behind bars than the person serving post-conviction? That is what one-for-one remand credit would do.

Now the Minister either knows this and is being disingenuous on her stance regarding pre-trial custody credit, or she doesn't realize that part of the equation and we have a bigger problem than I thought. Or maybe she is proposing to amend the legislation and take away remission for sentenced offenders as well? I suppose we'll have to wait and see.

I guess my point overall is this...I was quite surprised to see the vigor with which the Minister of Justice joined forces with a media opinion columnist to trash the very system over which she keeps watch...particularly in a province that has no previous government to blame for the current state of affairs. I was also quite confused when I tried to reconcile the comments in this article with Ms. Redford's MLA bio which starts off with, "Ms. Redford, a human rights lawyer..."

With an impressive resume including many prestigous posts connected with the United Nations, I would be very interested to hear what Ms. Redford intends to do to have Alberta come anywhere close to compliance with the United Nations Standard Minimum Rules for the Treatment of Prisoners.

84. (1) Persons arrested or imprisoned by reason of a criminal charge against them, who are detained either in police custody or in prison custody (jail) but have not yet been tried and sentenced, will be referred to as "untried prisoners,' hereinafter in these rules.
(2) Unconvicted prisoners are presumed to be innocent and shall be treated as such.
(3) Without prejudice to legal rules for the protection of individual liberty or prescribing the procedure to be observed in respect of untried prisoners, these prisoners shall benefit by a special regime which is described in the following rules in its essential requirements only.
85. (1) Untried prisoners shall be kept separate from convicted prisoners.
(2) Young untried prisoners shall be kept separate from adults and shall in principle be detained in separate institutions.
86. Untried prisoners shall sleep singly in separate rooms, with the reservation of different local custom in respect of the climate.
87. Within the limits compatible with the good order of the institution, untried prisoners may, if they so desire, have their food procured at their own expense from the outside, either through the administration or through their family or friends. Otherwise, the administration shall provide their food.
88. ( I ) An untried prisoner shall be allowed to wear his own clothing if it is clean and suitable.
(2) If he wears prison dress, it shall be different from that supplied to convicted prisoners.
89. An untried prisoner shall always be offered opportunity to work, but shall not be required to work. If he chooses to work, he shall be paid for it.
90. An untried prisoner shall be allowed to procure at his own expense or at the expense of a third party such books, newspapers, writing materials and other means of occupation as are compatible with the interests of the administration of justice and the security and good order of the institution.
91. An untried prisoner shall be allowed to be visited and treated by his own doctor or dentist if there is reasonable ground for his application and he is able to pay any expenses incurred.
92. An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.
93. For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.

Treating remand prisoners like they are innocent? Benefit from a special regime? Sleep singly in separate rooms? Get their own food? Wear their own clothes? Be offered the opportunity to work? AND GET PAID??!!?? Have access to their own doctors? Soundproof counsel interview rooms?

Probably easier to just not deny them reasonable bail without just cause.



Anonymous fitzgeralds said...

Thanks for the good read, I will definitely return for an update!

10:46 p.m.  

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