Inmate's Segregation Results in Extra Credit
It wasn’t that long ago that judges would routinely impose double time for pretrial custody (counting two days for every one day in jail awaiting trial or sentencing). Sometimes judges would even grant three-for-one, or four-for-one credit. The rationale was twofold—first, no consideration is given for early parole eligibility in pretrial custody, and second, conditions of confinement in pretrial facilities are generally more onerous due to a lack of programs and other facilities for inmates.
The practice became controversial and enhanced credit was eventually capped at 1.5 days for every day served with the passing of the Harper government’s Truth in Sentencing Act. Now the practice may be returning, albeit in a different context—as compensation for the use of administrative segregation, also known as solitary confinement.
Both the Ontario and British Columbia Courts have declared the administrative segregation laws unconstitutional due to the now well-recognized detrimental effects of isolation from human contact; but we remain in a holding pattern, waiting for the federal government to come up with new, constitutionally sound legislation.
In the meantime, courts are starting to hear Charter challenges alleging breaches of ss. 7 and 12 of the Charter protecting the “security of the person” and guarding against “cruel and unusual punishment” resulting from the use of segregation in jails. Yesterday the Court of Queen’s Bench in Alberta released the decision of R. v. Prystay, 2019 ABQB 8. In that case, the accused was held in administrative segregation for 13.5 months. The Court held that this amounted to a breach of s. 12 because of the length of the placement, the adverse effects on the accused’s psychological health, and the lack of procedural fairness. Although the court held that a stay of proceedings (effectively an end to the prosecution) was not warranted, the accused was granted enhanced credit at a rate of 3.75 days for each day served. Until the government passes new legislation, we may see more such cases pass through the courts.
