Canadian Criminal Sentencing/Procedure/Remand Credit

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General Principles[edit]

It generally preferred that when calculating a global sentence for multiple offences that the sentence be determined before taking into account pre-trial custody. Instead, the ordered sentence should be declared to be reduced for pre-trial custody credit. [1]

A failure to take into account remand time is an error of principle.[2] The method of taking into account remand time is to first calculate the total sentence and then deduct an amount of credit based on the amount of time served.[3]

On February, 2010, the Truth in Sentencing Act came into force limiting to circumstances where offenders on remand can get 2 for 1 credit. All offences occurring before that date will still be subject to the old rules of remand credit.

Prior to 2010, courts had discretion to grant 2:1 remand credit for time spent in custody. In practice, this was granted in most cases. The addition of s. 719(3.1) required a credit of 1:1 unless justified and with a maximum of 1:1.5 credit for remand time.

s. 719

...

Determination of sentence
(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

Exception
(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

Reasons
(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.

Record of proceedings
(3.3) The court shall cause to be stated in the record and on the warrant of committal the offence, the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed.

...

R.S., 1985, c. C-46, s. 719; R.S., 1985, c. 27 (1st Supp.), s. 157; 1995, c. 22, s. 6; 2009, c. 29, s. 3.

CCC

Where the offence is one with a mandatory minimum, the court may give remand credit that has the effect of reducing the sentence below the mandatory jail sentence.[4]

Circumstances in which enhanced credit have been given include:[5]

  1. Conditions of the remand facilities:
    1. lack of available programming and counselling[6]
    2. frequency of lockdowns during remand[7]
    3. duration of time in solitary confinement[8]
    4. other harsh circumstances in the facility such as double bunking, sleeping on floor, violence, etc.[9]
  2. delay post-trial not attributed to the accused:
    1. delay due to court scheduling[10]
    2. request by Court or Crown for a pre-sentence report or Gladue report[11]
    3. multiple court appearances for the purposes of sentencing[12]
  3. delay due to Crown[13]

Enhanced credit will be denied in circumstances such as:

  1. delay caused by the offender, including where the proceedings are drawn out deliberately.[14]


  1. R. v. Schira, 2004 ABCA 369 R. v. Letta, 2004 MBCA 179
  2. R v Aubin 2009 BCCA 418 at 2
  3. R v Orr 2008 BCCA 76 at para. 22
  4. R v Wust 2000 18
    R. v. Arthurs, 2000 SCC 19 at 1
  5. R. v. Stonefish, 2012 MBCA 116 (CanLII) - summary of circumstances of enhanced credit
  6. e.g., R. v. Haly, 2012 ONSC 2302 (CanLII) -- 1.2:1 time was given
    R. v. Mullins (P.E.), 2011 SKQB 478 (CanLII)
    R. c. Auger, 2012 QCCQ 568 (CanLII)
  7. e.g. Mullins
    R. v. Oates, 2012 ONCJ 461 (CanLII)
    c.f. R. v. Sayed, 2012 ONSC 843 (CanLII)
  8. e.g., R. v. Seymour, 2011 BCSC 1682 (CanLII) solitary for his own protection
    R. c. Guo, 2011 QCCQ 10469 (CanLII)
  9. e.g., R. v. J.B., 2011 BCPC 158 (CanLII) - double-bunking and exposure to violence
    R. v. Clayton, 2012 ABQB 333 (CanLII) - overcrowding, slept on the floor
    Auger - no visitors while on remand
  10. e.g., R. v. Dingwell (D.A.), 2012 PESC 13 (CanLII)
    R. v. B.R.S., 2011 ONCJ 484 (CanLII)
    R. v. Sabatine, 2012 ONCJ 310 (CanLII) - judge requested further submissions and time spent drafting reasons
  11. e.g,. R. v. House (Z.C.) (2012), 319 Nfld. & P.E.I.R. 197 (NL Prov. Ct.)
    R. v. Sharkey, 2011 BCSC 1541 (CanLII)
    R. v. Mozumdar, 2012 ONCJ 151 (CanLII)
  12. e.g., R. v. Przybyla, 2012 ABPC 183 (CanLII)
  13. e.g., R. c. Lefrançois, 2012 QCCQ 5655 (CanLII)
  14. See R. v. Leggo (R.) (2012), 317 Nfld. & P.E.I.R. 252 (NL Prov. Ct.)
    R. v. Morris, 2011 ONSC 5206 (CanLII) R v Johnson, 2011 ONCJ 77
    J.B.
    Sabatine

Case Digests[edit]

  • R. v. Sabatine, 2012 ONCJ 310 - partial enhanced remand credit given