Criminal Law

Abhorrent conditions continue to result in reduced sentences

By Paul Russell, AdvocateDaily.com Contributor

As long as those awaiting trial are subjected to harsh conditions, judges will continue to compensate them by reducing their sentences upon conviction, says Toronto criminal lawyer Ryan Handlarski.

“When people are waiting to have their case heard, but can’t get bail so they remain in jail, they are still presumed innocent, so we can’t resort to locking them down and mistreating them on a regular basis,” Handlarski, principal of RH Criminal Defence, tells AdvocateDaily.com.

He cites a Toronto Star article about a Superior Court judge who reduced a man’s seven-year prison sentence for drug trafficking and gun possession to time served because of the conditions he endured inside the Toronto South Detention Centre while awaiting trial.

In his two-and-a-half years of custody, the man experienced 205 days of lockdown and 214 half-days of lockdown, The Star reports.

Since the man suffers from numerous medical conditions including epilepsy, the judge was critical of the prison’s decision to assign him to sleep on the top bunk, where “he could have died” if he suffered a seizure, the story states.

“We cannot have people who are presumed innocent treated this way,” Handlarski says. “We have to solve this problem.”

Handlarski explains that a full day of lockdown means that inmates have no access to the exercise yard or the showers, or a phone to communicate with family members, for 24 hours.

“It's awful,” he says. “Jails have to give these people access to the yard and showers and things that ensure their humanity while they are in pretrial detention.”

The Star article gave other examples where Ontario judges have reduced sentences due to the appalling conditions before trials, with one judge writing in his decision, “We should not simply normalize unacceptable conditions in a jail.”

When a sentence is handed down, Handlarski says its severity is supposed to reflect community standards.

“Judges are denouncing wrongful acts, and the sentence is intended to reflect community values, and one of those values is that people in pretrial incarceration are presumed innocent, and should be treated in a humane manner,” he says.

Handlarski says he was surprised at how much credit for time served the man in this case received, as the general rule is 1.5 days of credit for every day of pretrial incarceration, “though the courts have said there is really no mathematical formula.

“As the ratio of time served to days credited keeps increasing, judges are simply communicating the message to our government and wardens that they have to stop locking these people down,” he says.

“Judges keep releasing decisions with that message, and yet they keep seeing the same phenomenon over and over and over, so that must be frustrating,” Handlarski says.

He acknowledges that some people might think offenders are getting a break they don’t deserve with sentence reductions for time served, “though that is not what the credit truly amounts to.”

Handlarski urges the government to find a solution to the overuse of lockdowns, which prison officials say is due to having too few staff members.

“What is the absolute easiest way to run a jail?” asks Handlarski. “Lock it down, keep the inmates inside their cells, and there’s very little work to be done.”

He predicts the trend to cut sentences in relation to time served will continue until problems in Ontario jails are resolved.

“We have to deal with this issue," Handlarski says, adding “giving credit due to the jail’s deplorable condition has been going on for years, but giving so much credit is the only thing that’s new in this case.”

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