NO 2-FOR-1 SENTENCING CREDIT, JUDGE RULES

A provincial court judge has ruled that a key plank in the Harper
government's law and order agenda, the Truth in Sentencing Act, does
not breach prisoners' constitutional rights.

Justice Melvyn Green upheld the law, which limits the maximum credit
an accused can get toward their sentence to 1.5 days for each day
spent in pre-trial custody.

Prior to the new law's passage, prisoners were generally given two
days' credit for each day in pre-trial custody, or sometimes even three.

"The maximum ratio available under this regime affords quantitative
compensation for the very vast majority of offenders who receive
sentences of incarceration," Green wrote in his judgment, released
Wednesday.

He credited drug dealer Marvin Johnson at a rate of 1.5 days for each
day of the 12 months he has spent in pre-trial custody. A sentence of
18 months means Johnson will be released from jail Thursday.

Johnson's constitutional challenge of the act is believed to be the
first in Canada.

Federal prosecutor Kevin Wilson told reporters the judgment would not
have a binding effect on other courts, but is likely to be persuasive.

"It was our position that the legislation was constitutional and the
judge has now found that, so we are satisfied with that decision," he
said.

Defence lawyer Corbin Cawkell took comfort from the fact that the
judge granted his client enhanced credit. Since the law took effect
last year, most judges have been giving just one day's credit for each
day spent in custody awaiting trial, he said.

Under the Truth in Sentencing Act, judges are required to impose
straight credit unless they can justify otherwise. Enhanced credit for
pre-trial custody was previously routinely granted to compensate for
conditions in pre-trial holding cells, which are harsher than prisons.

Cawkell argued in court that the act, which came into effect in
February 2010, disproportionately rewards those who plead guilty and
its effect falls unfairly on blacks and aboriginals. Johnson is both
black and aboriginal.

Johnson pleaded guilty last May 4 in a special "Gladue court" for
aboriginals to trafficking a fifth of a gram of cocaine to an
undercover officer. He has been held in Toronto Jail since his arrest
on Feb. 26, 2010.

Cawkell argued that holding facilities like the Toronto (Don) Jail
lack educational and vocational programs that prisons have and that it
is unfair to cap the enhanced credit judges can give in
compensation.

"The Toronto Jail is well known as one of the worst in Canada,"
Cawkell said in his written submissions.

The law tends to reward those who plead guilty quickly and go on to
prison where they immediately start earning credit toward mandatory
release, whereas those who exercise their rights to go to trial are
punished by spending longer time in remand, the lawyer said.

Cawkell also argued that people of both aboriginal and African
heritage will receive longer and harsher sentences than offenders of
other races because they are less likely to be granted bail.

Wilson and fellow prosecutor Niall Gilks argued that Johnson was
asking the judge to second-guess Parliament when it enacted the law.
"In making that decision Parliament was not constitutionally obliged
to satisfy each and every policy concern ..." they wrote.

The law enhances the state's interest in instilling public confidence
in the criminal justice system by providing a fixed and predictable
limit to judges' ability to give pre-trial credit, they added.