Evidence of meeting #6 for Justice and Human Rights in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was c-9.
A recording is available from Parliament.
Conservative
Roman Baber Conservative York Centre, ON
Mr. Bytensky, welcome.
What year were you called to the bar?
Conservative
Roman Baber Conservative York Centre, ON
You've been practising criminal defence for quite a long time.
Conservative
Roman Baber Conservative York Centre, ON
Are you also familiar with the various industry strategies, being president of the Criminal Lawyers’ Association?
President, Criminal Lawyers' Association
I try to keep up. There's a lot going on.
Conservative
Roman Baber Conservative York Centre, ON
You can inform the committee truthfully about various strategic practices used by defence attorneys. Is that correct?
President, Criminal Lawyers' Association
It's a very broad question, but for some of those strategies, yes, perhaps I can.
Conservative
Roman Baber Conservative York Centre, ON
I would like to propose that we have a discussion about legal practices. Let's leave politics and policy aside for a moment.
Judges have discretion to grant extra credit for time served pretrial. Is that correct?
Conservative
Roman Baber Conservative York Centre, ON
In your experience, is it fairly common during sentencing to credit time served?
President, Criminal Lawyers' Association
If you're talking about the standard credit, it ends up being a zero-sum game. Somebody who spends three months in pretrial custody will get credit for four and half, and if they were to receive a four and a half month sentence, they would be out in three months. They will end up doing the same amount of time in custody overall, typically.
Conservative
Roman Baber Conservative York Centre, ON
Yes, but we're talking about a credit of potentially one and a half to two times.
President, Criminal Lawyers' Association
Typically, it is one and a half, and if you have our typical parole application, they would be released at two-thirds or sometimes earlier. The general rule is designed to make it an equal amount of time in custody whether you spend it up front or after your sentencing.
Conservative
Roman Baber Conservative York Centre, ON
Time and a half to two times for time served before trial is not uncommon.
President, Criminal Lawyers' Association
Time and a half is not uncommon. Two times is no longer common. You're talking about things that changed many years ago. It used to be two times. That is no longer common, although because of the jail conditions that Mr. Spratt talked about, it has become increasingly common to grant enhanced credit. However, that is not common. The common is one and a half, and that is what is almost invariably granted in every case.
Conservative
Roman Baber Conservative York Centre, ON
Without referring to specific clients or to specific colleagues, do any of your colleagues in the criminal justice system ever recommend pretrial custody time in order to reduce a sentence?
President, Criminal Lawyers' Association
Not anymore. It is not a worthwhile process. There was a time many years ago when you would get two times the credit. Some people did adopt that strategy, and you could end up coming out a little bit further ahead. It is no longer a winning proposition. If you do the math, it doesn't work. You're actually better off getting bail and getting sentenced afterwards, not to mention the time spent will be much easier and in better conditions. If you're serving your sentence after sentencing, you'll do less time, typically, and you'll serve it in better conditions. Nobody who knows what they're doing should be adopting that strategy anymore.
Conservative
Roman Baber Conservative York Centre, ON
You were talking about custody credit for time served given various conditions. We understand that there are situations right now, particularly in the Toronto South Detention Centre. What is your experience with respect to credit for pretrial custody served in that facility?
President, Criminal Lawyers' Association
It varies greatly. It depends on whether you were triple-bunked or quadruple-bunked. It's not just Toronto South; it's throughout Ontario in many institutions and, frankly, throughout the country. It's a far greater problem than just Toronto South, but yes, in light of some of these conditions, some judges in some cases are awarding enhanced credit. That has happened, but I don't know a single defence lawyer who has ever adopted the strategy of keeping their client in custody longer so they can then argue for enhanced credit if their client is found guilty. Respectfully, it's not a strategy that I know anybody would adopt.
Conservative
Roman Baber Conservative York Centre, ON
We're not talking about a situation where bail is possible. I would presume, of course, that an accused would want to be out on bail.
Let me take you back to that example. Could you please provide us with a few examples of situations where pretrial custody time could potentially even exceed twice—two for one—the time served?
President, Criminal Lawyers' Association
Yes.
There have been examples where individuals were beaten in custody, where they were triple- or quadruple-bunked or where they were illegally strip-searched. There are examples in our law where judges have awarded more than one and a half to one. Sometimes it's two to one. I've heard even three to one. There are occasional, rare cases where you have more than two for one credit being granted by some judges for truly despicable conditions, yes.
Liberal
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Thanks, Chair.
Thanks, witnesses.
The biggest problem we have in this entire discussion, in my opinion, is the rhetoric that surrounds it. It's appalling, quite frankly. We're trying to deal with important policy here.
I think I'm on solid ground when I say that everybody in this room and everybody I know wants bad guys in jails and wants the system to function properly. The problem is that you take these individual cases and sensationalize them, and it blows up. Every time you turn on the news, people get the wrong impression. A number of times, I've seen, daily almost, some heinous crime happen in the city of Toronto, where I live, and some politician says, without even knowing who committed the crime, that the person was probably out on bail. The whole community thinks this has something to do with bail when it probably doesn't.
I'm tempted to ask how we stop that, but it's an unfair question because unless you take it out of the hands of politicians, you can't.
What we have to do is find a way to tone down the rhetoric, find a system that works and find a solution that creates an environment where everybody is confident that it works. What we're really talking about, in terms of the political side, is making sure that the general public has confidence in our system.
Most of the people around this table are lawyers. I think it's safe to say as well that they have confidence in our judges, in our lawyers and in the system as a whole.
I think it was you, Mr. Bytensky, who was talking about the delay and a mandatory right to a bail hearing in 24 hours. I'm not quite sure if I understood that. I didn't get it in my notes. What would you say is the biggest cause of delay in getting a bail hearing right now?
