Cablegate: Canada Poised to Tighten Crime Sentencing Rules

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TAGS: PGOV PTER CA
SUBJECT: CANADA POISED TO TIGHTEN CRIME SENTENCING RULES

REF: TORONTO 54; TORONTO 62

1. (SBU) Summary: Although PM Harper continues to criticize
sentencing provisions in Canada that permit terrorists and
criminals, including at least one convicted "Toronto 18" terrorist,
to obtain enhanced sentencing credit for time served in pre-trial
custody, Parliament actually passed a government bill to end
in-custody credit in October 2009. The government, for its own
as-yet-undisclosed reasons, will not enact it until February. In
2009, the government passed only three out of its 17 justice bills.
The Conservatives continue to trumpet their crime agenda and to
highlight it as one of the main policy planks in the upcoming new
session of Parliament. End summary.

BLAME THE LIBERALS...

2. (U) At a scheduled stop in Truro, Nova Scotia to make an
infrastructure funding announcement on January 21, Prime Minister
Stephen Harper unusually volunteered during a press scrum to answer
a question reporters had not even asked: how did he react to
public "outrage" over the latest sentence handed down in the
"Toronto 18" terror case? (On January 20 a Toronto court had
sentenced Amin Mohamed Durrani to one day in prison for his role in
the plot after the judge reduced Durrani's 7.5 year prison sentence
for time served - ref a.) PM Harper said that he understood
Canadians' shock. Without addressing the specifics of the Durrani
sentence, he criticized current sentencing rules that award two-for
one or even - though rarely - three-for-one credit for time in
pre-trial custody. He underscored that his government would end
the practice and would make criminals serve more time after
conviction.

3. (U) PM Harper said that "unfortunately" a new Canadian would
not apply in the latest terror sentencing. He complained that "it
took us a long time" to get the law through Parliament, given that
his minority government faced obstruction "in both [legislative]
houses...every step of the way." He credited minority Conservative
senators for fighting "pitched battles" with Liberal senators to
push the bill through, arguing that Liberal senators "kept gutting"
the legislation. The struggle, he said, underscored the need for
more Conservative senators "to ensure that laws move faster in the
future." There are currently five vacancies in the Senate that the
PM may fill before Parliament returns on March 3. The appointments
would give the Conservatives a 51 to 49 plurality over the Liberals
in the 105-seat Senate as well as an effective, but not absolute
majority in the chamber for the first time since the Conservatives
took office in 2006. In a televised speech the following day to
the federal Conservative caucus on January 22, PM Harper claimed
that his government's tough-on-crime agenda had made Canadians
"safer."

TRUTH IN SENTENCING

4. (U) The federal government had introduced a "Truth in
Sentencing Act" (C-25) to eliminate pre-trial credits in March
2009. The bill provided the courts with sentencing guidance and
ended credit for time served for all but exceptional cases.
Specifically, the legislation capped credit for time in custody at
a 1:1 ratio, with a ratio of up to 1.5:1 only where circumstances
justified it and where courts could explain it. The bill
eliminated extra credit under any circumstances for individuals
detained because of their criminal record or because they violated
bail.

5. (U) Impetus for the bill came from an agreement reached during
meetings of justice ministers at the federal, provincial and
territorial levels in 2006 and 2007. Under Canada's correctional
system, defendants are held in provincial remand facilities prior
to trial, conviction, and sentencing. The federal government has
argued that some prisoners "game" the system by dragging out time
in pre-trial custody to reduce their sentences and thereby clog
remand facilities and courts. Some legal experts have argued,
however, that the government's new tougher crime laws and court
inefficiencies are causing the remand backlog.

C-25 NOT A LAGGARD

6. (U) In practice, the Truth in Sentencing Act proved to be one
of the speedier bills to pass in 2009. The bill took only seven
months to pass both the House of Commons and the Senate --
including the three month summer recess. The government introduced
17 justice bills in 2009, of which only three -- C-25 the Truth in
Sentencing bill, C-14 to stiffen sentencing for offences committed
in connection with organized crime, and S-4 to prevent identity
theft -- passed into law. High-profile law-and-order bills on the
government's "safe streets" agenda -- including bills to raise
sentences for major crime, eliminate sentencing discounts for
multiple murders, and deny access to early parole for first and
second degree murderers -- were lost following the prorogation
(suspension) of Parliament on December 31, which terminated all
incomplete legislation. Three justice bills died in the late
stages of process in the Senate.

7. (U) The Truth in Sentencing bill spent just over two months in
the House of Commons and passed without amendment on June 8. It
spent four months in the Senate (including the recess). In all, the
Senate took only six working weeks to complete all stages (first,
second, and third readings, as well as committee hearings) of the
bill. During the hearings, Liberal senators had initially amended
the bill to restore credit for time served to a maximum of 1.5:1
for pre-trial custody and 2:1 where circumstances warranted in
order to preserve judicial discretion. However, Conservative
senators managed to defeat the amendments (44:30) and to pass the
original version of the bill on October 21. Reportedly, Liberal
Leader Michael Ignatieff insisted privately that the party not be
seen as "soft on crime," prompting some Liberal Senators to absent
themselves from the vote. C-25 received Royal Assent (the final
legislative stage) on October 22. The bill was not affected by
prorogation of Parliament on December 31, 2009.

PASSED, YET NOT ENACTED...

8. (U) Canadian legislation carries a coming-into-force provision
that varies with each bill. In the case of C-25, the bill comes
into force "on a day to be fixed by the Governor-in-Council,"
effectively, by cabinet order. According to contacts in the
Justice Minister's office, the Prime Minister's Office (PMO) told
them only on January 22 that PMO had set the coming-into-force date
for February 22, 2010 -- four months after the bill received Royal
Assent.

9. (SBU) Comment: The Conservatives have used the crime agenda
to great effect, making it an essential part of their "brand," in
spite of the fact that they have not actually passed most of their
proposed crime and security legislation. The PMO apparently
provided no explanation why it will end up waiting four months to
enact its own sentencing credit law, but the delay has not
prevented the PM from using crime -- and the bill -- as a partisan
issue and to prep for imminent Senate appointments.
JACOBSON

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