HOW MUCH CREDIT FOR TIME SERVED DURING PRE-SENTENCE CUSTODY?

When a person is accused of a crime, they may be required to spend time in custody prior to their trial and/or sentencing. They may be able to obtain additional credit on this pre-trial/sentencing time, because it is widely acknowledged that being detained during pre-sentence custody tends to take place under very difficult circumstances.

As described by Former Ontario Superior Court Judge Ted Matlow:

"In Toronto, it is common knowledge in legal circles that persons detained while awaiting trial are now usually forced to live in cells designed for two persons but occupied by three or four. That means that many inmates including persons awaiting trial must sleep on the floor of an overcrowded, smelly cell within inches of an open toilet. They have virtually no privacy. Everything that they do, including using the toilet, is open to the view of the guards and inmates. They must appease inmates who try to intimidate them or risk physical harm." 1

Under the Stephen Harper administration, 2009 federal legislation ended 2-for-1 credit on jail sentences in Canada. Prior to this law, judges could reduce prison sentences by two days for each day a person was in jail waiting for trial and/or sentencing due to difficult conditions in detention centres. Changes in the law in 2009, however, limited credit for time served to a ratio of 1.5-to-1, only permits this credit when justified under the circumstances, and requires judges who order this credit to explain what these circumstances are. 2

As part of these changes in 2009, Section 719(3.1) of the Criminal Code held that credit for pre-sentence custody is limited to a ratio of 1-to-1 when an accused is on remand under s. 524 of the Code, which is about an arrest while out on bail; but the Ontario Court of Appeal has ruled recently that this s. 719(3.1) exclusion violates s. 7 of the Canadian Charter of Rights and Freedoms.

The Charter is a bill of rights entrenched in the Constitution of Canada that guarantees certain civil rights of everyone in Canada.

It provides protection from the policies and actions of all levels of the Canadian government. Section 7 maintains that: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” 3

R v Meads (2018) decided that s. 719(3.1) is overbroad, thereby violating the principles of fundamental justice because it lacks rational connection between the purpose of the law and some of its impacts. 4

R v Hussain (2018) ruled that imposing an eighteen month sentence for bail condition breaches, and then further refusing the usual 1.5-to-1 credit for pre- sentence custody on the basis of those same breaches would consist of unfairly punishing the person twice for the same misconduct. 5

As a result of these Court of Appeal decisions, a person detained because of bail misconduct is not automatically refused 1.5-for-1 credit for time served prior to sentencing. These recent developments are within the tradition of judicial discretion.

References
1. Quoted by: John Howard Society of Toronto, "Doing "Dead Time": Custody before
trial," http://www.johnhoward.on.ca/wp- content/uploads/2014/09/facts-17-doing-dead-time-custody-before-trial-january-2002.pdf 

2. CBC, “New law ends 2-for-1 credit on jail sentences,” http://www.cbc.ca/news/canada/new-law- ends-2-for-1-credit-on-jail-sentences-1.838432

3. The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11.

4. R v Meads, 2018 ONCA 146.

5. R v Hussain, 2018 ONCA 147.