Two years less a day or three years: Which is better? | David Dorson

By David Dorson

Law360 Canada (July 21, 2022, 10:02 AM EDT) --

One of the most surprising things I learned in my journey through the criminal justice system is that there are circumstances under which a longer sentence is better than a shorter one. That applies primarily to sentences that are somewhere in the vicinity of two years. 

A second surprise was that many criminal lawyers seem not to know this either. Indeed, it seems that many criminal lawyers don’t know much about jails and prisons generally. Neither do many Crown attorneys or judges, for that matter. The whole court process typically unfolds in a way in which the actual conditions facing someone being imprisoned aren’t material. (Queen’s law prof Lisa Kerr has written about this issue.) 

Why a longer sentence might be better  

In Canada a sentence of less than two years is served in a provincial jail, while sentences of more than two years are served in a federal prison. That difference is why you often hear about sentences of two years less a day — meaning provincial jail time. The conventional wisdom is that time in a provincial jail is better than in a federal prison, and that a shorter sentence is always better.

Not necessarily. Let’s compare Joe, who gets a provincial sentence of two years less a day with Fred, who gets a federal sentence of three years.

The first thing is that a provincial sentence of two years (or less) can also include up to three years of probation afterwards while a federal sentence cannot have any supervision when it ends. In our example, Joe would face five years of total time in jail and on probation — which is itself no picnic — vs. three years in total for Fred. That’s two-thirds more time for Joe! 

Even more, Fred is likely to be paroled after about 40 per cent of his sentence, or at worst would be given statutory release after two-thirds, whereas there is very little parole in provincial jails. To take our case again, Joe would likely do two full years inside and five years in total under supervision, while Fred could well have 18 months or less inside, with the rest of his three years on parole. 

Provincial jails are even worse places than federal prisons

It’s also wrong to think that provincial jails are easier places to do time. Federal prisons, miserable and ugly places as they are, are still generally better than provincial jails, especially for short-termers. As hard as things are for prisoners in a federal prison, they are typically worse in every respect in a provincial jail (even though about 60 per cent of people in provincial jails in Canada on any given day are on remand — that is, they have not been convicted of anything). 

Federal prisons have better facilities, libraries, schools, gyms, psychologists, employment and various programs. It is true that these are often in short supply and not nearly accessible enough, but they exist. Moreover, if you have a sentence of two or three years in the federal system you are very likely to be sent to a minimum security prison, which means you are not locked in a cell during the day. In minimum security prisons, prisoners live in bedrooms in houses, not in cells with bars and mostly do their own cooking. The lights aren’t on all night. There is more freedom of movement including being outside. These prisons may have clubs, musical groups or outdoor areas for walking. Prisoners can have their own TV, radio and CD player as well as books, photos and other personal items. Visits are (in non-COVID times) in person, not behind glass or via video. There is more access to telephones. Prisoners wear normal clothing instead of a prison jumper and flipflops. It’s not freedom, or anything close to it, but it is a big step up from the worst prison conditions.

Provincial jails, on the other hand, tend to have little or none of this. Because provincial jails contain a few people with very serious charges, they tend to operate as maximum-security institutions for all prisoners. In most provincial jails prisoners spend almost all their time in a cell or in the small range area outside the cells. There are very few programs or facilities and even less access to those that exist. The food is generally horrible. Most provincial jails these days have endless lockdowns in which prisoners must stay in their cells for days at a time. In the new Toronto South jail, and some others, prisoners never see the outdoors or the sky directly. 

More is less

The reality is that anyone facing a relatively short sentence is likely to be significantly better off with a sentence of more than two years compared to two years less a day, or even 18 months. They will likely spend less time actually imprisoned and every day of it is likely to be less difficult. 

Defence lawyers need to be advising their clients accordingly. Indeed, defence lawyers should be aware of the current state of conditions in both provincial jails and federal prisons if they are to be able to help their clients navigate a plea. 

This entirely counterintuitive situation is typical of our criminal justice system, in which the reality is often very different from the official description. 
Editor’s note: David Dorson is the pen name of someone who went through arrest, case disposition, imprisonment and parole in Ontario a few years ago. The Lawyer’s Daily has granted anonymity because he offers a unique perspective on a subject that matters deeply to many readers, and revealing the author’s identity would make re-establishment in the community after serving his sentence much more difficult than it already is.

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