Remand Credit: Difference between revisions
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[[fr:Crédit_de_détention_provisoire]] | |||
{{Currency2|December|2021}} | |||
{{LevelZero}}{{HeaderSentProcedure}} | {{LevelZero}}{{HeaderSentProcedure}} | ||
==General Principles== | ==General Principles== | ||
{{seealso|Imprisonment}} | {{seealso|Imprisonment}} | ||
An offender being sentenced to a period of custody may have their sentenced reduced on account of time already spent in custody on the charges. The reduction follows a formula: | |||
* basic remand credit: time spent in custody counts against the sentence on a 1:1 basis. | |||
* "Summers" credit: This is credit beyond a 1:1 basis where the offender can show that they had some deprivations that were available to those who were serving sentence. There is a statutory cap on credit to a maximum of 1.5:1 basis (See s. 719). | |||
* "Duncan" credit: This is credit that can be added to a 1.5:1 basis credit. It is available where the offender can show that he was subject to "particularly harsh" conditions. It is treated as a mitigation to sentence and not calculated as a ratio. | |||
A failure to take into account remand time is an error of principle.<ref> | A failure to take into account remand time is an error of principle.<ref> | ||
{{ | {{CanLIIRP|Aubin|2607r|2009 BCCA 418 (CanLII)|276 BCAC 251}}{{perBCCA|Levine JA}}{{atL|2607r|2}}</ref> | ||
However, where justified a judge may deny all credit to an offender. | |||
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.<ref> | 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.<ref> | ||
{{ | {{CanLIIRP|Orr|1vsdv|2008 BCCA 76 (CanLII)|228 CCC (3d) 432}}{{perBCCA|Hall JA}}{{atL|1vsdv|22}}</ref> | ||
{{quotation2| | {{quotation2| | ||
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{{LegHistory10s|2019, c. 25}}, s. 295. | {{LegHistory10s|2019, c. 25}}, s. 295. | ||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|719}} | ||
|{{NoteUp|719|3|3.1|3.2|3.3|3.4}} | |{{NoteUp|719|3|3.1|3.2|3.3|3.4}} | ||
}} | }} | ||
; Credit Discretion | |||
The language of s. 719(3) indicates that a judge is not required to apply remand credit.<Ref> | |||
{{CanLIIRP|Lau|1tbnn|2004 ABCA 408 (CanLII)|193 CCC (3d) 51}}{{perABCA|Hunt JA}}{{AtL|1tbnn|14}} | |||
</ref> | |||
However, credit should not be denied without "good reason."<Ref> | |||
{{ibid1|Lau}} at para 14<Br> | |||
{{CanLIIRP|Wust|5266|2000 SCC 18 (CanLII)|[2000] 1 SCR 455}}{{perSCC-H|Arbour J}}{{AtL|5266|44}} | |||
</ref> | |||
; Eligible Offences | ; Eligible Offences | ||
Remand credit authorized under s. 719 (3) and (3.1) is not limited only to the offence that was the direct cause of the detention. The court can also consider whether there is sufficient link between the detention and any offences so long as the detention is "as a result of" the offence.<ref> | Remand credit authorized under s. 719 (3) and (3.1) is not limited only to the offence that was the direct cause of the detention. The court can also consider whether there is sufficient link between the detention and any offences so long as the detention is "as a result of" the offence.<ref> | ||
{{ | {{CanLIIRP|Barnett|hnw1h|2017 ONCA 897 (CanLII)|138 OR (3d) 401}}{{perONCA-H|Doherty and Rouleau JJA}}<br> | ||
</ref> | </ref> | ||
It is an error to refuse to grant credit where detention was directly caused by charges that were ultimately stayed but the offences for which he was ultimately would have factored into the basis of detention.<ref> | It is an error to refuse to grant credit where detention was directly caused by charges that were ultimately stayed but the offences for which he was ultimately would have factored into the basis of detention.<ref> | ||
{{ | {{CanLIIRx|Hoelscher|hp32x|2017 ABCA 406 (CanLII)}}{{perABCA|Martin JA}} | ||
</ref> | </ref> | ||
; Purpose of Pre-trial Credit | ; Purpose of Pre-trial Credit | ||
While "pre-trial detention is not intended as punishment ... in effect, [it is] deemed part of the punishment following the offender's conviction" by function of s. 719(3).<ref> | While "pre-trial detention is not intended as punishment ... in effect, [it is] deemed part of the punishment following the offender's conviction" by function of s. 719(3).<ref> | ||
{{ | {{CanLIIRP|Wilson|1z3xw|2008 ONCA 510 (CanLII)|236 CCC (3d) 285}}{{perONCA|Roseberg JA}}{{atL|1z3xw|41}}<br> | ||
</ref> | </ref> | ||
; History | ; History | ||
On February, 2010, the ''Truth in Sentencing Act'' came into force | On February, 2010, the ''Truth in Sentencing Act'' came into force removing the availability of "2 for 1" credit, capping the maximum credit at 1.5:1 credit. All offences occurring before that 2010 date will still be subject to the old rules of remand credit.<Ref> | ||
see [[List_of_Criminal_Code_Amendments_(2000_to_2009)#2009,_c._29]] | |||
</ref> | |||
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. | 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. | ||
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; Procedure | ; Procedure | ||
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.<ref> | 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.<ref> | ||
{{ | {{CanLIIRP|Schira|1j9sz|2004 ABCA 369 (CanLII)|357 AR 225}}{{perABCA|Conrad JA}}<br> | ||
{{ | {{CanLIIRP|Letta|1j4qh|2004 MBCA 179 (CanLII)|190 Man R (2d) 165}}{{perMBCA|Huband JA}}<br> | ||
</ref> | </ref> | ||
The amount of presentence bail and the associated credit does not need to be a precise mathematical calculation.<ref> | The amount of presentence bail and the associated credit does not need to be a precise mathematical calculation.<ref> | ||
{{ | {{CanLIIRx|Persaud|ghl4h|2015 ONCA 343 (CanLII)}}{{TheCourtONCA}} | ||
</ref> | </ref> | ||
Where a judge has decided not to grant enhanced remand credit, they are required to give clear reasons sufficient to allow of appellate review. Otherwise, the judge will be an error in principle.<Ref> | Where a judge has decided not to grant enhanced remand credit, they are required to give clear reasons sufficient to allow of appellate review. Otherwise, the judge will be an error in principle.<Ref> | ||
{{ | {{CanLIIRx|McPherson|hz4c7|2019 NSCA 20 (CanLII)}}{{TheCourtNSCA}}{{atL|hz4c7|9}}("If the trial judge had reasons for only granting 1:1 credit for remand time, based on the evidence, those reasons should have been clearly stated in the decision to allow for meaningful appellate review. The failure to do so is an error in principle. On this record, and the trial judge’s decision, we are left to speculate on why one-for one credit was given. We are not prepared to do so.") | ||
</ref> | </ref> | ||
; Mandatory Minimum | |||
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.<ref> | |||
{{CanLIIRP|Wust|5266|2000 SCC 18 (CanLII)|[2000] 1 SCR 455}}{{perSCC-H|Arbour J}}<br> | |||
{{CanLIIRP|Arthurs|5268|2000 SCC 19 (CanLII)|[2000] 1 SCR 481}}{{perSCC-H|Arbour J}}{{atL|5268|1}}<br></ref> | |||
; Constitutionality | ; Constitutionality | ||
The portion of s. 718(3.1)--as it existed prior to December 13, 2018--stating "the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or" was found to be unconstitutional, violating s. 7 of the Charter due to being overbroad.<ref> | The portion of s. 718(3.1)--as it existed prior to December 13, 2018--stating "the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or" was found to be unconstitutional, violating s. 7 of the Charter due to being overbroad.<ref> | ||
{{CanLIIRP|Safarzadeh‑Markhali|gpg9w|2016 SCC 14 (CanLII)|[2016] 1 SCR 180 | {{CanLIIRP|Safarzadeh‑Markhali|gpg9w|2016 SCC 14 (CanLII)|[2016] 1 SCR 180}}{{perSCC-H|McLachlin CJ}} - provision identified in {{CanLII|g8xwl|2014 ONCA 627 (CanLII)}}{{perONCA|Strathy JA}}{{atL|g8xwl|124}}<br> | ||
{{CanLIIRP|Kovich (GW)|gn965|2016 MBCA 19 (CanLII)|333 CCC (3d) 1}}{{perMBCA|Steel JA}}<br> | {{CanLIIRP|Kovich (GW)|gn965|2016 MBCA 19 (CanLII)|333 CCC (3d) 1}}{{perMBCA|Steel JA}}<br> | ||
</ref> | </ref> | ||
The remainder of the provision has been found constitutional.<ref> | The remainder of the provision has been found constitutional.<ref> | ||
{{ | {{CanLIIRP|McIntyre|gww7w|2017 ONSC 360 (CanLII)|373 CRR (2d) 144}}{{perONSC|Akhtar J}} | ||
</ref> | </ref> | ||
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An offender cannot claim pretrial credit for any pre-trial custody spent due to serving a sentence.<ref> | An offender cannot claim pretrial credit for any pre-trial custody spent due to serving a sentence.<ref> | ||
{{supra1|Wilson}}{{atsL|1z3xw|41| to 43, 45}}<br> | {{supra1|Wilson}}{{atsL|1z3xw|41| to 43, 45}}<br> | ||
{{ | {{CanLIIRP|Keepness|gf51q|2014 SKCA 110 (CanLII)|317 CCC (3d) 267}}{{perSKCA|Ottenbreit JA}} (2:1){{atL|gf51q|75}} ("...a judge is not, when sentencing an accused, entitled under s. 719(3) to credit an accused for time spent serving a sentence previously imposed on another unrelated offence which happens to be the same time the accused is in pre-trial custody for the offence for which the accused is being sentenced.")<Br> | ||
{{ | {{CanLIIRx|Stewart|gnfsf|2016 NSCA 12 (CanLII)}}{{perNSCA|Beveridge JA}}{{atL|gnfsf|50}} | ||
</ref> | </ref> | ||
The time spent serving another sentence is only relevant to sentencing as it is "part of the complete picture for understanding a particular offender" | The time spent serving another sentence is only relevant to sentencing as it is "part of the complete picture for understanding a particular offender."<ref> | ||
{{ | {{CanLIIRx|Pammett|gwmcf|2016 ONCA 979 (CanLII)}}{{TheCourtONCA}}{{atL|gwmcf|27}}<br> | ||
{{supra1|Wilson}}{{atL|1z3xw|46}}<br> | {{supra1|Wilson}}{{atL|1z3xw|46}}<br> | ||
</ref> | </ref> | ||
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; One-day Credit For Non-Custodial Attendance at Court | ; One-day Credit For Non-Custodial Attendance at Court | ||
When calculating credit against a sentence, the sentencing judge may take into account time "in custody" (within the meaning of s. 719(3)) and time "in detention" (pre-sentence custody/remand).<ref> | When calculating credit against a sentence, the sentencing judge may take into account time "in custody" (within the meaning of s. 719(3)) and time "in detention" (pre-sentence custody/remand).<ref> | ||
{{ | {{CanLIIRP|Yue|1svfg|2007 ONCA 598 (CanLII)|226 CCC (3d) 349}}{{perONCA|MacPherson JA}}{{atsL|1svfg|34| to 35}}<Br> | ||
</ref> | </ref> | ||
A "time served" sentence without being associated with time actually spent in custody or detention is not a valid sentence.<ref> | A "time served" sentence without being associated with time actually spent in custody or detention is not a valid sentence.<ref> | ||
{{ | {{CanLIIRx|Brown|gfg0q|2014 BCCA 439 (CanLII)}}{{perBCCA|Willcock JA}}{{atL|gfg0q|24}} ("First the sentences in relation to the assault causing bodily harm, uttering threats and breach of probation are recorded only as credit for time served. As we noted in [citations omitted] it is not open to a sentencing judge to impose a sentence of time served alone.") | ||
{{CanLIIRP|Savoie|1r3bm|1994 CanLII 6521 (NB CA)|152 NBR (2d) 310 (NBCA)}}{{TheCourtNBCA}} (it is a sentence "unsanctioned in law")<br> | {{CanLIIRP|Savoie|1r3bm|1994 CanLII 6521 (NB CA)|152 NBR (2d) 310 (NBCA)}}{{TheCourtNBCA}} (it is a sentence "unsanctioned in law")<br> | ||
{{CanLIIRP|Comeau|20372|2008 NBCA 60 (CanLII)}}{{perNBCA|Richard J}} - court suggests the sentence by stayed instead of "time served"<br> | {{CanLIIRP|Comeau|20372|2008 NBCA 60 (CanLII)|80 WCB (2d) 850}}{{perNBCA|Richard J}} - court suggests the sentence by stayed instead of "time served"<br> | ||
cf. {{ | cf. {{CanLIIRx|Dunbar|hzbjc|2019 NSSC 96 (CanLII)}}{{perNSSC|Gabriel J}}{{atsL|hzbjc|22| to 35}} - lists some examples where time served ordered or endorsed on review<Br> | ||
</ref> | </ref> | ||
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; Appellate Review | ; Appellate Review | ||
The sentencing judge's decision to give enhanced remand credit is at their discretion.<ref> | The sentencing judge's decision to give enhanced remand credit is at their discretion.<ref> | ||
{{ | {{CanLIIRx|Brown|j5t80|2020 ONCA 196 (CanLII)}}{{TheCourtONCA}}{{AtL|j5t80|13}}<br> | ||
see {{ | see {{CanLIIRx|Ledinek|hwj3r|2018 ONCA 1017 (CanLII)}}{{TheCourtONCA}}<Br> | ||
{{ | {{CanLIIRx|UA|j3rcc|2019 ONCA 946 (CanLII)}}{{TheCourtONCA}}<br> | ||
{{ | {{CanLIIRx|Deiaco|hwzxj|2019 ONCA 12 (CanLII)}}{{TheCourtONCA}}<br> | ||
</ref> | </ref> | ||
It is only if there is an error of law, error in principle or if the credit renders the sentence demonstrably unfit that the appellate court should intervene.<ref> | It is only if there is an error of law, error in principle or if the credit renders the sentence demonstrably unfit that the appellate court should intervene.<ref> | ||
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==Circumstances Where Enhanced Credit is Given== | ==Circumstances Where Enhanced Credit is Given== | ||
Section 719 (3.1) permits the court to grant enhanced remand credit of up to 1.5 times the time served so long as the "circumstances justify it". | Section 719 (3.1) permits the court to grant enhanced remand credit of up to 1.5 times the time served so long as the "circumstances justify it". This is sometimes referred to as "Summers credit."<Ref> | ||
{{CanLIIR|Marshall|jg1l3|2021 ONCA 344 (CanLII)}}{{perONCA-H|Doherty JA}}{{atL|jg1l3|50}} | |||
</ref> | |||
; Standard of Proof | ; Standard of Proof | ||
Enhanced credit should only be awarded if the accused proves on a balance of probability that it is justified.<ref> | Enhanced credit should only be awarded if the accused proves on a balance of probability that it is justified.<ref> | ||
{{ | {{CanLIIRP|Stonefish|fvfcn|2012 MBCA 116 (CanLII)|295 CCC (3d) 52}}{{perMBCA|Steel JA}}<br> | ||
</ref> | </ref> | ||
; Loss of Remission and Statutory Release | ; Loss of Remission and Statutory Release | ||
The loss of remission or parole eligibility while on remand may be basis for enhanced credit unless there is evidence that the offender would ''not'' have been given early release or that he was attempting to "game" the system by delaying the proceedings.<ref> | The loss of remission or parole eligibility while on remand may be basis for enhanced credit unless there is evidence that the offender would ''not'' have been given early release or that he was attempting to "game" the system by delaying the proceedings.<ref> | ||
{{ | {{CanLIIRP|Clarke|g6h8s|2014 SCC 28 (CanLII)|[2014] 1 SCR 612}}{{perSCC-H|Abella J}}<br> | ||
{{ | {{CanLIIRP|Carvery|g6h8q|2014 SCC 27 (CanLII)|[2014] 1 SCR 605}}{{perSCC|Karakatsanis J}}<br> | ||
{{ | {{CanLIIRP|Summers|g6h8n|2014 SCC 26 (CanLII)|[2014] 1 SCR 575}}{{perSCC|Karakatsanis J}}<br> | ||
</ref> | </ref> | ||
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</ref> | </ref> | ||
===Examples of Enhanced Credit=== | ===Examples of Enhanced Credit=== | ||
Circumstances in which enhanced credit have been given include:<ref> | Circumstances in which enhanced credit have been given include:<ref> | ||
{{ | {{CanLIIRP|Stonefish|fvfcn|2012 MBCA 116 (CanLII)|295 CCC (3d) 52}}{{perMBCA|Steel JA}} - summary of circumstances of enhanced credit</ref> | ||
# Conditions of the remand facilities: | # Conditions of the remand facilities: | ||
## lack of available programming and counselling<ref> | ## lack of available programming and counselling<ref> | ||
e.g., {{ | e.g., {{CanLIIRx|Haly|fr4dg|2012 ONSC 2302 (CanLII)}}{{perONSC|MacDonnell J}} -- 1.2:1 time was given<br> | ||
{{ | {{CanLIIRP|Mullins (P.E.)|fplqb|2011 SKQB 478 (CanLII)|388 Sask R 221}}{{perSKQB|Zarzeczny J}}<br> | ||
{{ | {{CanLIIRxC|R c Auger|fpwj1|2012 QCCQ 568 (CanLII)}}{{perQCCQ|Westmoreland-Traore J}}<br> | ||
</ref> | </ref> | ||
## frequency of lockdowns during remand<ref> | ## frequency of lockdowns during remand<ref> | ||
e.g. {{supra1|Mullins}}<br> | e.g. {{supra1|Mullins}}<br> | ||
{{ | {{CanLIIRx|Oates|fs2qh|2012 ONCJ 461 (CanLII)}}{{perONCJ|George J}}<br> | ||
cf. {{ | cf. {{CanLIIRx|Sayed|fq7sg|2012 ONSC 843 (CanLII)}}{{perONSC|Pattillo J}} | ||
</ref> | </ref> | ||
## duration of time in solitary confinement<ref> | ## duration of time in solitary confinement<ref> | ||
e.g., {{ | e.g., {{CanLIIRP|Seymour|fp7sm|2011 BCSC 1682 (CanLII)|98 WCB (2d) 266}}{{perBCSC|CL Smith J}} solitary for his own protection<br> | ||
{{ | {{CanLIIRxC|R c Guo|fn40r|2011 QCCQ 10469 (CanLII)}}{{perQCCQ|Chevalier J}}<br> | ||
</ref> | </ref> | ||
## other harsh circumstances in the facility such as double bunking, sleeping on floor, violence, etc.<ref> | ## other harsh circumstances in the facility such as double bunking, sleeping on floor, violence, etc.<ref> | ||
e.g., {{ | e.g., {{CanLIIRx|JB|fm6lf|2011 BCPC 158 (CanLII)}}{{perBCPC|Challenger J}} - double-bunking and exposure to violence<br> | ||
{{ | {{CanLIIRP|Clayton|frdxj|2012 ABQB 333 (CanLII)|540 AR 226}}{{perABQB|Eidsvik J}} - overcrowding, slept on the floor<br> | ||
Auger - no visitors while on remand<br> | Auger - no visitors while on remand<br> | ||
</ref> | </ref> | ||
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## delay due to court scheduling<ref> | ## delay due to court scheduling<ref> | ||
e.g., {{CanLIIRP|Dingwell (D.A.)|fr3xj|2012 PESC 13 (CanLII)|996 APR 263}}{{perPEISC|Mitchell J}}<br> | e.g., {{CanLIIRP|Dingwell (D.A.)|fr3xj|2012 PESC 13 (CanLII)|996 APR 263}}{{perPEISC|Mitchell J}}<br> | ||
{{ | {{CanLIIRx|BRS|fn8kf|2011 ONCJ 484 (CanLII)}}{{perONCJ|Robertson J}}<br> | ||
{{ | {{CanLIIRP|Sabatine|frfph|2012 ONCJ 310 (CanLII)|OJ No 2258}}{{perONCJ|LeRoy J}} - judge requested further submissions and time spent drafting reasons<br></ref> | ||
## request by Court or Crown for a pre-sentence report or Gladue report<ref> | ## request by Court or Crown for a pre-sentence report or Gladue report<ref> | ||
e.g,. {{CanLIIRP|House (Z.C.)|fq998|2012 CanLII 8497 (NLPC)|319 Nfld. & | e.g,. {{CanLIIRP|House (Z.C.)|fq998|2012 CanLII 8497 (NLPC)|319 Nfld. & PEIR 197 (NL Prov. Ct.)}}{{perNLPC|Gorman J}}<br> | ||
{{ | {{CanLIIRx|Sharkey|fnsmj|2011 BCSC 1541 (CanLII)}}{{perBCSC|Gray J}}<br> | ||
{{ | {{CanLIIRx|Mozumdar|fqpzr|2012 ONCJ 151 (CanLII)}}{{perONCJ|Lipson J}}<br> | ||
</ref> | </ref> | ||
## multiple court appearances for the purposes of sentencing<ref> | ## multiple court appearances for the purposes of sentencing<ref> | ||
e.g., {{ | e.g., {{CanLIIRx|Przybyla|fs4dd|2012 ABPC 183 (CanLII)}}{{perABPC|Barley J}}<br> | ||
</ref> | </ref> | ||
# delay due to Crown<ref> | # delay due to Crown<ref> | ||
e.g., {{ | e.g., {{CanLIIRxC|R c Lefrançois|fs4m6|2012 QCCQ 5655 (CanLII)}}{{perQCCQ|Marleau J}}<br> | ||
</ref> | </ref> | ||
There mere fact that the offender was subject to extensive periods of lock-down with no evidence of "any adverse effect flowing from the locked down conditions", will not warrant enhanced credit beyond 1.5:1.<ref> | There mere fact that the offender was subject to extensive periods of lock-down with no evidence of "any adverse effect flowing from the locked down conditions", will not warrant enhanced credit beyond 1.5:1.<ref> | ||
{{ | {{CanLIIRP|Duncan|gv2xf|2016 ONCA 754 (CanLII)|OJ No 5255}}{{TheCourtONCA}}{{atL|gv2xf|11}} (there was “no evidence of any adverse effect flowing from the locked down conditions”)<br> | ||
{{ | {{CanLIIRP|Henry|gvnt9|2016 ONCA 873 (CanLII)|OJ No 5897}}{{TheCourtONCA}}{{atL|gvnt9|9}}<Br> | ||
</ref> | </ref> | ||
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In certain specific remand centres that have subjected detainees to lockdowns have been used to justify enhanced remand credit of one-half to one day beyond the usual credit.<Ref> | In certain specific remand centres that have subjected detainees to lockdowns have been used to justify enhanced remand credit of one-half to one day beyond the usual credit.<Ref> | ||
'''Specific to the Toronto South Detention Centre:'''<br> | '''Specific to the Toronto South Detention Centre:'''<br> | ||
{{ | {{CanLIIRx|Persad|j4gql|2020 ONSC 188 (CanLII)}}{{perONSC|Schreck J}}{{atL|j4gql|36}}<br> | ||
{{ | {{CanLIIRx|Oksem|j33m0|2019 ONSC 6283 (CanLII)}}{{perONSC|Davies J}}{{AtL|j33m0|31}}<br> | ||
{{ | {{CanLIIRx|Sanchez|j2dkt|2019 ONSC 5272 (CanLII)}}{{perONSC|Davies J}}{{atL|j2dkt|56| to 57}}<br> | ||
{{ | {{CanLIIRx|Jama|hqr3d|2018 ONSC 1252 (CanLII)}}{{perONSC|Goldstein J}}{{AtsL|hqr3d|17| to 22}}<br> | ||
{{ | {{CanLIIRx|Inniss|h3q3t|2017 ONSC 2779 (CanLII)}}{{perONSC|Forestell J}}{{AtL|h3q3t|39}}<br> | ||
{{ | {{CanLIIRx|Ward-Jackson|hpqq3|2018 ONSC 178 (CanLII)}}{{perONSC|Kelly J}}{{AtsL|hpqq3|50| to 52}}<br> | ||
{{ | {{CanLIIRx|Lu|j2zrw|2019 ONSC 5933 (CanLII)}}{{perONSC|Spies J}}{{atL|j2zrw|96}}<br> | ||
{{ | {{CanLIIRx|Kabanga-Muanza|hxndj|2019 ONSC 1161 (CanLII)}}{{perONSC|Spies J}}{{atL|hxndj|113}}<br> | ||
{{ | {{CanLIIRx|Selvaratnam|hshst|2018 ONSC 3135 (CanLII)}}{{perONSC|Corrick J}}{{atL|hshst|39| to 40}}<br> | ||
</ref> | </ref> | ||
{{reflist|2}} | |||
==Credit In Excess of 1:1.5 (Duncan Credit)== | |||
Enhanced credit will be afforded where there are "particularly harsh presentence incarceration conditions." This can include considerations of "conditions of the presentence incarceration and the impact of those conditions on the accused."<ref> | |||
{{CanLIIRP|Duncan|gv2xf|2016 ONCA 754 (CanLII)|OJ No 5255}}{{TheCourtONCA}}{{atL|gv2xf|6}}<br> | |||
R v Rajmoolie, 2020 ONCA 791 (“a higher credit may be given for particularly harsh conditions”){{fix}} | |||
</ref> | |||
"Duncan" credit addresses any "exceptionally punitive conditions" that go beyond the "normal restrictions associated with pretrial custody."<REf> | |||
{{CanLIIRP|Marshall|jg1l3|2021 ONCA 344 (CanLII)|174 WCB (2d) 88}}{{perONCA-H|Doherty JA}}{{atL|jg1l3|50}} | |||
</ref> | |||
It has been suggested that the use of remand credit can be a manner in which the courts may choose to communicate their disapproval of the "inhumane" treatment of detainees even without a Charter application before them.<ref> | |||
{{CanLIIRx|Persad|j4gql|2020 ONSC 188 (CanLII)}}{{perONSC|Schreck J}}{{atL|j4gql|35}}<br> | |||
</ref> | |||
; Evidence | |||
The burden of proof may be satisfied using evidence of "credible information," which can include hearsay.<ref> | |||
{{supra1|Stonefish}} ("Given the relaxed evidentiary rules in a sentencing hearing and in an attempt to avoid clogging the courts any more than is necessary, credible information and/or hearsay evidence may be tendered, as is the case when other issues are disputed in a sentencing hearing.") | |||
</ref> | |||
; Standard of Review | |||
Granting additional credit is an exercise in discretion and should be afforded deference.<Ref> | |||
{{CanLIIRx|Ledinek|hwj3r|2018 ONCA 1017 (CanLII)}}{{TheCourtONCA}}{{AtL|hwj3r|13}} | |||
</ref> | |||
; COVID-19 Conditions | |||
There is some suggestion that the judicial notice taken by judges of the societal impact of the pandemic permits the inference that inmates in provincial institutions have, at times, experienced a harder time due to the assumed reduction in programming. Accordingly, at least some mitigation is permitted.<ref> | |||
{{CanLIIRx|Robinson|jfgd0|2021 NSPC 20 (CanLII)}}{{perNSPC|Buckle J}} | |||
</ref> | |||
Very restrictive conditions and COVID-related health risks are examples of circumstances that give rise to "Duncan" credit.<ref> | |||
{{supra1|Marshall}}{{atL|jg1l3|50}} | |||
</ref> | |||
There has been a reduction in sentence for actual contraction of COVID-19 under the credit allocated as "collateral consequences."<REf> | |||
{{CanLIIRx|AA|j8wp0|2020 ONSC 3802 (CanLII)}}{{perONSC|Corrick J}} | |||
</ref> | |||
Some judges have found that mere psychological stress from the fear of transmission can also allow for credit.<Ref> | |||
{{CanLIIRP|Hearns|j6gl5|2020 ONSC 2365 (CanLII)|OJ No 1648}}{{perONSC|Pomerance J}}{{atL|j6gl5|16}}<br> | |||
{{CanLIIRP|Kandhai|j607t|2020 ONSC 1611 (CanLII)|OJ No 1254}}{{perONSC|D.E. Harris J}}{{AtL|j607t|7}}<br> | |||
{{CanLIIRP|Studd|j77wx|2020 ONSC 2810 (CanLII)|OJ No 2035}}{{perONSC|Davies J}}{{atL|j77wx|44}} | |||
</ref> | |||
; As Compared to "Summers" Credit | |||
"Summers" credit relate to the deduction in sentence in the amount calculated from the time spent in pretrial custody. It is capped statutorily at 1:1.5. It is not a "mitigating factor" and should not be denied on account of an aggravating factor.<ref> | |||
{{supra1|Marshall}}{{atL|jg1l3|51}}<br> | |||
</ref> | |||
By contrast, "Duncan" credit is not a deduction from what is otherwise an appropriate sentence. It is a mitigating factor applied to the formulation of the ultimate sentence.<ref> | |||
{{supra1|Marshall}}{{atL|jg1l3|52}}<Br> | |||
</ref> | |||
Duncan credit has been applied where the adverse effects of remand were "over and above" what was contemplated for Summers credit.<Ref> | |||
{{CanLIIR|Chaisson|jx38z|2023 NSSC 144 (CanLII)}}{{perNSSC|Norton J}}{{atL|jx38z|25}} | |||
</ref> | |||
Courts are permitted but should be discouraged from treating "Duncan" credit as a specific deduction or else it may take on an "unwarranted significance in fixing the ultimate sentence imposed." <ref> | |||
{{supra1|Marshall}}{{atL|jg1l3|53}}<br> | |||
{{CanLIIRP|JB|1h9v4|2004 CanLII 39056 (ON CA)|187 OAC 307}} | |||
</reF> | |||
{{reflist|2}} | {{reflist|2}} | ||
Line 222: | Line 294: | ||
Enhanced credit will be ''denied'' in circumstances such as: | Enhanced credit will be ''denied'' in circumstances such as: | ||
# delay caused by the offender, including where the proceedings are drawn out deliberately.<ref> | # delay caused by the offender, including where the proceedings are drawn out deliberately.<ref> | ||
See {{CanLIIRP|Leggo (R.)|fpsjf|2012 CanLII 2802 (NLPC)|317 Nfld. & | See {{CanLIIRP|Leggo (R.)|fpsjf|2012 CanLII 2802 (NLPC)|317 Nfld. & PEIR 252 (NL Prov. Ct.)}}{{perNLPC|Gorman J}}<br> | ||
{{ | {{CanLIIRP|Morris|fn1nc|2011 ONSC 5206 (CanLII)|97 WCB (2d) 643}}{{perONSC|Harvison-Young J}}<br> | ||
{{ | {{CanLIIRP|Johnson|2fwtz|2011 ONCJ 77 (CanLII)|268 CCC (3d) 423}}{{perONCJ|M Green J}}<br> | ||
{{ | {{CanLIIRx|JB|fm6lf|2011 BCPC 158 (CanLII)}}{{perBCPC|Challenger J}}<br> | ||
{{ | {{CanLIIRP|Sabatine|frfph|2012 ONCJ 310 (CanLII)|OJ No 2258}}{{perONCJ|LeRoy J}}<br> | ||
</ref> | </ref> | ||
Line 233: | Line 305: | ||
===Awaiting Extradition=== | ===Awaiting Extradition=== | ||
Remand credit is not mandatory where the offender absconds from Canada.<ref> | Remand credit is not mandatory where the offender absconds from Canada.<ref> | ||
{{ | {{CanLIIRP|Millward|5rm3|2000 ABCA 308 (CanLII)|48 WCB (2d) 260}}{{perABCA|Fraser JA}} (2:1){{atL|5rm3|3}}<br> | ||
</ref> | </ref> | ||
The Court may give no credit or limited credit depending on the circumstances including whether the offender attempted to contest extradition.<ref> | The Court may give no credit or limited credit depending on the circumstances including whether the offender attempted to contest extradition.<ref> | ||
Line 243: | Line 315: | ||
==Pre-Amendments 2010== | ==Pre-Amendments 2010== | ||
Offenders who commit offences that were committed before the amendments of the Truth in Sentencing Act are not subject to those amendments.<ref> | Offenders who commit offences that were committed before the amendments of the Truth in Sentencing Act are not subject to those amendments.<ref> | ||
{{ | {{CanLIIRP|Codner|fwd7s|2013 ONCA 138 (CanLII)|303 OAC 91}}{{perONCA|Epstein JA}}{{atL|fwd7s|13}}</ref> | ||
This includes accused who are charged after the date of the amendments. Retrospective application of the remand amendments violates section 11 (i) of the Charter.<ref> | This includes accused who are charged after the date of the amendments. Retrospective application of the remand amendments violates section 11 (i) of the Charter.<ref> | ||
{{ | {{CanLIIRP|RS|ghd9x|2015 ONCA 291 (CanLII)|20 CR (7th) 336}}{{perONCA|Benotto JA}}{{atL|ghd9x|35}} referring to s. 5 of Truth in Sentencing Act which changed s. 719(3) of the Code</ref> | ||
Prior to the amendments it was normal for an offender to receive two for one credit for pre-sentence custody.<ref> | Prior to the amendments, it was normal for an offender to receive two for one credit for pre-sentence custody.<ref> | ||
{{CanLIIRP|Pangman|1fkf4|2001 MBCA 64 (CanLII)|154 CCC (3d) 193}}{{perMBCA|Steel JA}}<br> | {{CanLIIRP|Pangman|1fkf4|2001 MBCA 64 (CanLII)|154 CCC (3d) 193}}{{perMBCA|Steel JA}}<br> | ||
{{CanLIIRP|Francis|1mzjv|2006 CanLII 10203 (ON CA)|[2006] OJ No 1287 (CA)}}{{perONCA|Weiler JA}}<br> | {{CanLIIRP|Francis|1mzjv|2006 CanLII 10203 (ON CA)|[2006] OJ No 1287 (CA)}}{{perONCA|Weiler JA}}<br> | ||
Line 255: | Line 327: | ||
; Straddle cases | ; Straddle cases | ||
The pre-2010 law does not apply to those who committed offences before the amendement but were charged afterwards.<Ref> | The pre-2010 law does not apply to those who committed offences before the amendement but were charged afterwards.<Ref> | ||
{{ | {{CanLIIRP|Clarke|fvkr4|2013 ONCA 7 (CanLII)|293 CCC (3d) 369}}{{perONCA|Laskin JA}} | ||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
==Strict Bail Conditions== | |||
* [[Strict Bail Conditions Credit]] | |||
==Youth Sentence== | ==Youth Sentence== | ||
The maximum sentence may still be given despite any remand credit available.<ref> | The maximum sentence may still be given despite any remand credit available.<ref> | ||
{{ | {{CanLIIRP|P(NW)|20ldk|2008 MBCA 101 (CanLII)|235 CCC (3d) 125}}{{perMBCA|Monnin JA}}{{atL|20ldk|10}} | ||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} |
Latest revision as of 15:40, 14 July 2024
This page was last substantively updated or reviewed December 2021. (Rev. # 95546) |
General Principles
An offender being sentenced to a period of custody may have their sentenced reduced on account of time already spent in custody on the charges. The reduction follows a formula:
- basic remand credit: time spent in custody counts against the sentence on a 1:1 basis.
- "Summers" credit: This is credit beyond a 1:1 basis where the offender can show that they had some deprivations that were available to those who were serving sentence. There is a statutory cap on credit to a maximum of 1.5:1 basis (See s. 719).
- "Duncan" credit: This is credit that can be added to a 1.5:1 basis credit. It is available where the offender can show that he was subject to "particularly harsh" conditions. It is treated as a mitigation to sentence and not calculated as a ratio.
A failure to take into account remand time is an error of principle.[1] However, where justified a judge may deny all credit to an offender.
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.[2]
s. 719
[omitted (1) and (2)]
- 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) [determination of sentence – remand credit], if the circumstances justify it, the maximum is one and one-half days for each day spent in custody.
- 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.
- Validity not affected
(3.4) Failure to comply with subsection (3.2) [determination of sentence – justification for remand credit] or (3.3) [record of proceedings] does not affect the validity of the sentence imposed by the court.
[omitted (4), (5) and (6)]
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; 2018, c. 29, s. 66; 2019, c. 25, s. 295.
[annotation(s) added]
- Credit Discretion
The language of s. 719(3) indicates that a judge is not required to apply remand credit.[3] However, credit should not be denied without "good reason."[4]
- Eligible Offences
Remand credit authorized under s. 719 (3) and (3.1) is not limited only to the offence that was the direct cause of the detention. The court can also consider whether there is sufficient link between the detention and any offences so long as the detention is "as a result of" the offence.[5]
It is an error to refuse to grant credit where detention was directly caused by charges that were ultimately stayed but the offences for which he was ultimately would have factored into the basis of detention.[6]
- Purpose of Pre-trial Credit
While "pre-trial detention is not intended as punishment ... in effect, [it is] deemed part of the punishment following the offender's conviction" by function of s. 719(3).[7]
- History
On February, 2010, the Truth in Sentencing Act came into force removing the availability of "2 for 1" credit, capping the maximum credit at 1.5:1 credit. All offences occurring before that 2010 date will still be subject to the old rules of remand credit.[8]
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.
- Procedure
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.[9]
The amount of presentence bail and the associated credit does not need to be a precise mathematical calculation.[10]
Where a judge has decided not to grant enhanced remand credit, they are required to give clear reasons sufficient to allow of appellate review. Otherwise, the judge will be an error in principle.[11]
- Mandatory Minimum
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.[12]
- Constitutionality
The portion of s. 718(3.1)--as it existed prior to December 13, 2018--stating "the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or" was found to be unconstitutional, violating s. 7 of the Charter due to being overbroad.[13] The remainder of the provision has been found constitutional.[14]
- No Pre-trial Credit When Already Serving a Sentence
An offender cannot claim pretrial credit for any pre-trial custody spent due to serving a sentence.[15] The time spent serving another sentence is only relevant to sentencing as it is "part of the complete picture for understanding a particular offender."[16] It is an error of law to give credit for time served on other charges.[17]
- One-day Credit For Non-Custodial Attendance at Court
When calculating credit against a sentence, the sentencing judge may take into account time "in custody" (within the meaning of s. 719(3)) and time "in detention" (pre-sentence custody/remand).[18]
A "time served" sentence without being associated with time actually spent in custody or detention is not a valid sentence.[19]
- Remand Credit On CSO Breach Allegation
See Conditional Sentence Breaches#Effect of Allegations on CSO
- Appellate Review
The sentencing judge's decision to give enhanced remand credit is at their discretion.[20] It is only if there is an error of law, error in principle or if the credit renders the sentence demonstrably unfit that the appellate court should intervene.[21]
- ↑ R v Aubin, 2009 BCCA 418 (CanLII), 276 BCAC 251, per Levine JA, at para 2
- ↑ R v Orr, 2008 BCCA 76 (CanLII), 228 CCC (3d) 432, per Hall JA, at para 22
- ↑ R v Lau, 2004 ABCA 408 (CanLII), 193 CCC (3d) 51, per Hunt JA, at para 14
- ↑
Lau, ibid. at para 14
R v Wust, 2000 SCC 18 (CanLII), [2000] 1 SCR 455, per Arbour J, at para 44 - ↑
R v Barnett, 2017 ONCA 897 (CanLII), 138 OR (3d) 401, per Doherty and Rouleau JJA
- ↑ R v Hoelscher, 2017 ABCA 406 (CanLII), per Martin JA
- ↑
R v Wilson, 2008 ONCA 510 (CanLII), 236 CCC (3d) 285, per Roseberg JA, at para 41
- ↑ see List_of_Criminal_Code_Amendments_(2000_to_2009)#2009,_c._29
- ↑
R v Schira, 2004 ABCA 369 (CanLII), 357 AR 225, per Conrad JA
R v Letta, 2004 MBCA 179 (CanLII), 190 Man R (2d) 165, per Huband JA
- ↑ R v Persaud, 2015 ONCA 343 (CanLII), per curiam
- ↑ R v McPherson, 2019 NSCA 20 (CanLII), per curiam, at para 9("If the trial judge had reasons for only granting 1:1 credit for remand time, based on the evidence, those reasons should have been clearly stated in the decision to allow for meaningful appellate review. The failure to do so is an error in principle. On this record, and the trial judge’s decision, we are left to speculate on why one-for one credit was given. We are not prepared to do so.")
- ↑
R v Wust, 2000 SCC 18 (CanLII), [2000] 1 SCR 455, per Arbour J
R v Arthurs, 2000 SCC 19 (CanLII), [2000] 1 SCR 481, per Arbour J, at para 1
- ↑
R v Safarzadeh‑Markhali, 2016 SCC 14 (CanLII), [2016] 1 SCR 180, per McLachlin CJ - provision identified in 2014 ONCA 627 (CanLII), per Strathy JA, at para 124
R v Kovich (GW), 2016 MBCA 19 (CanLII), 333 CCC (3d) 1, per Steel JA
- ↑ R v McIntyre, 2017 ONSC 360 (CanLII), 373 CRR (2d) 144, per Akhtar J
- ↑
Wilson, supra, at paras 41 to 43, 45
R v Keepness, 2014 SKCA 110 (CanLII), 317 CCC (3d) 267, per Ottenbreit JA (2:1), at para 75 ("...a judge is not, when sentencing an accused, entitled under s. 719(3) to credit an accused for time spent serving a sentence previously imposed on another unrelated offence which happens to be the same time the accused is in pre-trial custody for the offence for which the accused is being sentenced.")
R v Stewart, 2016 NSCA 12 (CanLII), per Beveridge JA, at para 50 - ↑
R v Pammett, 2016 ONCA 979 (CanLII), per curiam, at para 27
Wilson, supra, at para 46
- ↑
Pammett, supra, at para 29
- ↑
R v Yue, 2007 ONCA 598 (CanLII), 226 CCC (3d) 349, per MacPherson JA, at paras 34 to 35
- ↑
R v Brown, 2014 BCCA 439 (CanLII), per Willcock JA, at para 24 ("First the sentences in relation to the assault causing bodily harm, uttering threats and breach of probation are recorded only as credit for time served. As we noted in [citations omitted] it is not open to a sentencing judge to impose a sentence of time served alone.")
R v Savoie, 1994 CanLII 6521 (NB CA), 152 NBR (2d) 310 (NBCA), per curiam (it is a sentence "unsanctioned in law")
R v Comeau, 2008 NBCA 60 (CanLII), 80 WCB (2d) 850, per Richard J - court suggests the sentence by stayed instead of "time served"
cf. R v Dunbar, 2019 NSSC 96 (CanLII), per Gabriel J, at paras 22 to 35 - lists some examples where time served ordered or endorsed on review
- ↑
R v Brown, 2020 ONCA 196 (CanLII), per curiam, at para 13
see R v Ledinek, 2018 ONCA 1017 (CanLII), per curiam
R v UA, 2019 ONCA 946 (CanLII), per curiam
R v Deiaco, 2019 ONCA 12 (CanLII), per curiam
- ↑
Brown, ibid., at para 13
Circumstances Where Enhanced Credit is Given
Section 719 (3.1) permits the court to grant enhanced remand credit of up to 1.5 times the time served so long as the "circumstances justify it". This is sometimes referred to as "Summers credit."[1]
- Standard of Proof
Enhanced credit should only be awarded if the accused proves on a balance of probability that it is justified.[2]
- Loss of Remission and Statutory Release
The loss of remission or parole eligibility while on remand may be basis for enhanced credit unless there is evidence that the offender would not have been given early release or that he was attempting to "game" the system by delaying the proceedings.[3]
The accused should show that he exhibited good behaviour while on remand so as to prove the circumstances would have permitted the granting remission or statutory release.[4]
Examples of Enhanced Credit
Circumstances in which enhanced credit have been given include:[5]
- Conditions of the remand facilities:
- delay post-trial not attributed to the accused:
- delay due to Crown[13]
There mere fact that the offender was subject to extensive periods of lock-down with no evidence of "any adverse effect flowing from the locked down conditions", will not warrant enhanced credit beyond 1.5:1.[14]
- Conditions in Remand Centres
In certain specific remand centres that have subjected detainees to lockdowns have been used to justify enhanced remand credit of one-half to one day beyond the usual credit.[15]
- ↑ R v Marshall, 2021 ONCA 344 (CanLII), per Doherty JA, at para 50
- ↑
R v Stonefish, 2012 MBCA 116 (CanLII), 295 CCC (3d) 52, per Steel JA
- ↑
R v Clarke, 2014 SCC 28 (CanLII), [2014] 1 SCR 612, per Abella J
R v Carvery, 2014 SCC 27 (CanLII), [2014] 1 SCR 605, per Karakatsanis J
R v Summers, 2014 SCC 26 (CanLII), [2014] 1 SCR 575, per Karakatsanis J
- ↑ Stonefish, supra
- ↑ R v Stonefish, 2012 MBCA 116 (CanLII), 295 CCC (3d) 52, per Steel JA - summary of circumstances of enhanced credit
- ↑
e.g., R v Haly, 2012 ONSC 2302 (CanLII), per MacDonnell J -- 1.2:1 time was given
R v Mullins (P.E.), 2011 SKQB 478 (CanLII), 388 Sask R 221, per Zarzeczny J
R c Auger, 2012 QCCQ 568 (CanLII), per Westmoreland-Traore J
- ↑
e.g. Mullins, supra
R v Oates, 2012 ONCJ 461 (CanLII), per George J
cf. R v Sayed, 2012 ONSC 843 (CanLII), per Pattillo J - ↑
e.g., R v Seymour, 2011 BCSC 1682 (CanLII), 98 WCB (2d) 266, per CL Smith J solitary for his own protection
R c Guo, 2011 QCCQ 10469 (CanLII), per Chevalier J
- ↑
e.g., R v JB, 2011 BCPC 158 (CanLII), per Challenger J - double-bunking and exposure to violence
R v Clayton, 2012 ABQB 333 (CanLII), 540 AR 226, per Eidsvik J - overcrowding, slept on the floor
Auger - no visitors while on remand
- ↑
e.g., R v Dingwell (D.A.), 2012 PESC 13 (CanLII), 996 APR 263, per Mitchell J
R v BRS, 2011 ONCJ 484 (CanLII), per Robertson J
R v Sabatine, 2012 ONCJ 310 (CanLII), OJ No 2258, per LeRoy J - judge requested further submissions and time spent drafting reasons
- ↑
e.g,. R v House (Z.C.), 2012 CanLII 8497 (NLPC), 319 Nfld. & PEIR 197 (NL Prov. Ct.), per Gorman J
R v Sharkey, 2011 BCSC 1541 (CanLII), per Gray J
R v Mozumdar, 2012 ONCJ 151 (CanLII), per Lipson J
- ↑
e.g., R v Przybyla, 2012 ABPC 183 (CanLII), per Barley J
- ↑
e.g., R c Lefrançois, 2012 QCCQ 5655 (CanLII), per Marleau J
- ↑
R v Duncan, 2016 ONCA 754 (CanLII), OJ No 5255, per curiam, at para 11 (there was “no evidence of any adverse effect flowing from the locked down conditions”)
R v Henry, 2016 ONCA 873 (CanLII), OJ No 5897, per curiam, at para 9
- ↑
Specific to the Toronto South Detention Centre:
R v Persad, 2020 ONSC 188 (CanLII), per Schreck J, at para 36
R v Oksem, 2019 ONSC 6283 (CanLII), per Davies J, at para 31
R v Sanchez, 2019 ONSC 5272 (CanLII), per Davies J, at para 56
R v Jama, 2018 ONSC 1252 (CanLII), per Goldstein J, at paras 17 to 22
R v Inniss, 2017 ONSC 2779 (CanLII), per Forestell J, at para 39
R v Ward-Jackson, 2018 ONSC 178 (CanLII), per Kelly J, at paras 50 to 52
R v Lu, 2019 ONSC 5933 (CanLII), per Spies J, at para 96
R v Kabanga-Muanza, 2019 ONSC 1161 (CanLII), per Spies J, at para 113
R v Selvaratnam, 2018 ONSC 3135 (CanLII), per Corrick J, at para 39
Credit In Excess of 1:1.5 (Duncan Credit)
Enhanced credit will be afforded where there are "particularly harsh presentence incarceration conditions." This can include considerations of "conditions of the presentence incarceration and the impact of those conditions on the accused."[1]
"Duncan" credit addresses any "exceptionally punitive conditions" that go beyond the "normal restrictions associated with pretrial custody."[2]
It has been suggested that the use of remand credit can be a manner in which the courts may choose to communicate their disapproval of the "inhumane" treatment of detainees even without a Charter application before them.[3]
- Evidence
The burden of proof may be satisfied using evidence of "credible information," which can include hearsay.[4]
- Standard of Review
Granting additional credit is an exercise in discretion and should be afforded deference.[5]
- COVID-19 Conditions
There is some suggestion that the judicial notice taken by judges of the societal impact of the pandemic permits the inference that inmates in provincial institutions have, at times, experienced a harder time due to the assumed reduction in programming. Accordingly, at least some mitigation is permitted.[6]
Very restrictive conditions and COVID-related health risks are examples of circumstances that give rise to "Duncan" credit.[7]
There has been a reduction in sentence for actual contraction of COVID-19 under the credit allocated as "collateral consequences."[8]
Some judges have found that mere psychological stress from the fear of transmission can also allow for credit.[9]
- As Compared to "Summers" Credit
"Summers" credit relate to the deduction in sentence in the amount calculated from the time spent in pretrial custody. It is capped statutorily at 1:1.5. It is not a "mitigating factor" and should not be denied on account of an aggravating factor.[10] By contrast, "Duncan" credit is not a deduction from what is otherwise an appropriate sentence. It is a mitigating factor applied to the formulation of the ultimate sentence.[11]
Duncan credit has been applied where the adverse effects of remand were "over and above" what was contemplated for Summers credit.[12]
Courts are permitted but should be discouraged from treating "Duncan" credit as a specific deduction or else it may take on an "unwarranted significance in fixing the ultimate sentence imposed." [13]
- ↑
R v Duncan, 2016 ONCA 754 (CanLII), OJ No 5255, per curiam, at para 6
R v Rajmoolie, 2020 ONCA 791 (“a higher credit may be given for particularly harsh conditions”)(complete citation pending) - ↑ R v Marshall, 2021 ONCA 344 (CanLII), 174 WCB (2d) 88, per Doherty JA, at para 50
- ↑
R v Persad, 2020 ONSC 188 (CanLII), per Schreck J, at para 35
- ↑ Stonefish, supra ("Given the relaxed evidentiary rules in a sentencing hearing and in an attempt to avoid clogging the courts any more than is necessary, credible information and/or hearsay evidence may be tendered, as is the case when other issues are disputed in a sentencing hearing.")
- ↑ R v Ledinek, 2018 ONCA 1017 (CanLII), per curiam, at para 13
- ↑ R v Robinson, 2021 NSPC 20 (CanLII), per Buckle J
- ↑ Marshall, supra, at para 50
- ↑ R v AA, 2020 ONSC 3802 (CanLII), per Corrick J
- ↑
R v Hearns, 2020 ONSC 2365 (CanLII), OJ No 1648, per Pomerance J, at para 16
R v Kandhai, 2020 ONSC 1611 (CanLII), OJ No 1254, per D.E. Harris J, at para 7
R v Studd, 2020 ONSC 2810 (CanLII), OJ No 2035, per Davies J, at para 44 - ↑
Marshall, supra, at para 51
- ↑
Marshall, supra, at para 52
- ↑ R v Chaisson, 2023 NSSC 144 (CanLII), per Norton J, at para 25
- ↑
Marshall, supra, at para 53
R v JB, 2004 CanLII 39056 (ON CA), 187 OAC 307
Circumstances Where Enhanced Credit is Denied
Enhanced credit will be denied in circumstances such as:
- delay caused by the offender, including where the proceedings are drawn out deliberately.[1]
- ↑
See R v Leggo (R.), 2012 CanLII 2802 (NLPC), 317 Nfld. & PEIR 252 (NL Prov. Ct.), per Gorman J
R v Morris, 2011 ONSC 5206 (CanLII), 97 WCB (2d) 643, per Harvison-Young J
R v Johnson, 2011 ONCJ 77 (CanLII), 268 CCC (3d) 423, per M Green J
R v JB, 2011 BCPC 158 (CanLII), per Challenger J
R v Sabatine, 2012 ONCJ 310 (CanLII), OJ No 2258, per LeRoy J
Awaiting Extradition
Remand credit is not mandatory where the offender absconds from Canada.[1] The Court may give no credit or limited credit depending on the circumstances including whether the offender attempted to contest extradition.[2]
Pre-Amendments 2010
Offenders who commit offences that were committed before the amendments of the Truth in Sentencing Act are not subject to those amendments.[1] This includes accused who are charged after the date of the amendments. Retrospective application of the remand amendments violates section 11 (i) of the Charter.[2]
Prior to the amendments, it was normal for an offender to receive two for one credit for pre-sentence custody.[3]
- Straddle cases
The pre-2010 law does not apply to those who committed offences before the amendement but were charged afterwards.[4]
- ↑ R v Codner, 2013 ONCA 138 (CanLII), 303 OAC 91, per Epstein JA, at para 13
- ↑ R v RS, 2015 ONCA 291 (CanLII), 20 CR (7th) 336, per Benotto JA, at para 35 referring to s. 5 of Truth in Sentencing Act which changed s. 719(3) of the Code
- ↑
R v Pangman, 2001 MBCA 64 (CanLII), 154 CCC (3d) 193, per Steel JA
R v Francis, 2006 CanLII 10203 (ON CA), [2006] OJ No 1287 (CA), per Weiler JA
Codner, supra, at para 13
- ↑ R v Clarke, 2013 ONCA 7 (CanLII), 293 CCC (3d) 369, per Laskin JA
Strict Bail Conditions
Youth Sentence
The maximum sentence may still be given despite any remand credit available.[1]
- ↑ R v P(NW), 2008 MBCA 101 (CanLII), 235 CCC (3d) 125, per Monnin JA, at para 10