Remand Credit

From Criminal Law Notebook

General Principles

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.[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]

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).[* see below]
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.
[annotations added]
[* found unconstitutional]


– CCC

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).[4]

History
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.

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. [5]

The amount of presentence bail and the associated credit does not need to be a precise mathematical calculation.[6]

Constitutionality
The portion of s. 718(3.1) 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.[7] The remainder of the provision has been found constitutional.[8]

No Pre-trial Credit When Already Serving a Sentence
An offender cannot claim pretrial credit for any pre-trial custody spent due to remand or due to serving a sentence.[9] The time spent serving another sentence is only relevant to sentencing as it is "part of the complete picture for understanding a particular offender".[10] It is an error of law to give credit for time served on other charges.[11]

  1. ↑ R v Wust, 2000 SCC 18 (CanLII), [2000] 1 SCR 455 per Arbour J
    R v Arthurs, 2000 SCC 19 (CanLII), per Arbour J, at para 1
  2. ↑ R v Aubin 2009 BCCA 418 (CanLII) at para 2
  3. ↑ R v Orr 2008 BCCA 76 (CanLII), per Hall JA, at para 22
  4. ↑ R v Wilson, 2008 ONCA 510 (CanLII), per Roseberg JA, at para 41
  5. ↑ R v Schira, 2004 ABCA 369 (CanLII) per Conrad JA
    R v Letta, 2004 MBCA 179 (CanLII) per Huband JA
  6. ↑ R v Persaud, 2015 ONCA 343 (CanLII)
  7. ↑ R v Safarzadeh‑Markhali, 2016 SCC 14 (CanLII) per McLachlin CJ - provision identified in 2014 ONCA 627 (CanLII) at para 124
    R v Kovich (GW), 2016 MBCA 19 (CanLII) per Steel JA
  8. ↑ R v McIntyre, 2017 ONSC 360 (CanLII)
  9. ↑ Wilson, supra at para 41 to 42
  10. ↑ R v Pammett, 2016 ONCA 979 (CanLII) at para 27
    Wilson, supra at para 46
  11. ↑ Pammett, supra at para 29

Circumstances Where Enhanced Credit is Given

The loss of remission or parole eligibility while on remand will 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. [1]

Enhanced credit will be afforded where there is "particularly harsh presentence incarceration conditions". This can include considerations of "conditions of the presentence incarceration and the impact of those conditions on the accused".[2]

  1. ↑ R v Clarke, 2014 SCC 28 (CanLII), per Abella J
    R v Carvery, 2014 SCC 27 (CanLII), per Karakatsanis J
    R v Summers, 2014 SCC 26 (CanLII), per Karakatsanis J
  2. ↑ R v Duncan, 2016 ONCA 754 (CanLII), at para 6

Examples of Enhanced Credit

Circumstances in which enhanced credit have been given include:[1]

  1. Conditions of the remand facilities:
    1. lack of available programming and counselling[2]
    2. frequency of lockdowns during remand[3]
    3. duration of time in solitary confinement[4]
    4. other harsh circumstances in the facility such as double bunking, sleeping on floor, violence, etc.[5]
  2. delay post-trial not attributed to the accused:
    1. delay due to court scheduling[6]
    2. request by Court or Crown for a pre-sentence report or Gladue report[7]
    3. multiple court appearances for the purposes of sentencing[8]
  3. delay due to Crown[9]

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.[10]


  1. ↑ R v Stonefish, 2012 MBCA 116 (CanLII) - summary of circumstances of enhanced credit
  2. ↑ 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)
  3. ↑ e.g. Mullins, supra
    R v Oates, 2012 ONCJ 461 (CanLII)
    c.f. R v Sayed, 2012 ONSC 843 (CanLII)
  4. ↑ e.g., R v Seymour, 2011 BCSC 1682 (CanLII) solitary for his own protection
    R c Guo, 2011 QCCQ 10469 (CanLII)
  5. ↑ 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
  6. ↑ 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
  7. ↑ 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)
  8. ↑ e.g., R v Przybyla, 2012 ABPC 183 (CanLII)
  9. ↑ e.g., R c Lefrançois, 2012 QCCQ 5655 (CanLII)
  10. ↑ R v Duncan, 2016 ONCA 754 (CanLII), at para 11 (there was “no evidence of any adverse effect flowing from the locked down conditions”)
    R v Henry, 2016 ONCA 873 (CanLII) at para 9

Circumstances Where Enhanced Credit is Denied

Enhanced credit will be denied in circumstances such as:

  1. delay caused by the offender, including where the proceedings are drawn out deliberately.[1]
  1. ↑ See R v Leggo (R.), 2012 CanLII 2802 (NL PC), (2012), 317 Nfld. & P.E.I.R. 252 (NL Prov. Ct.)
    R v Morris, 2011 ONSC 5206 (CanLII)
    R v Johnson, 2011 ONCJ 77 (CanLII)
    J.B.
    Sabatine

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]

  1. ↑ R v Millward, 2000 ABCA 308 (CanLII) at para 3
  2. ↑ Millward, ibid. at para 3

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]

  1. ↑ R v Codner, 2013 ONCA 138 (CanLII), per Epstein JA, at para 13
  2. ↑ R v RS, 2015 ONCA 291 (CanLII), per Benotto JA, at para 35 referring to s. 5 of Truth in Sentencing Act which changed s. 719(3) of the Code
  3. ↑ R v Pangman 2001 MBCA 64 (CanLII), (2001), 154 CCC (3d) 193, per Steel JA
    R v Francis, 2006 CanLII 10203 (ON CA), [2006] O.J. No. 1287 (C.A.), per Weiler JA
    Codner, supra at para 13

Youth Sentence

The maximum sentence may still be given despite any remand credit available. [1]

  1. ↑ R v P. (N.W.), 2008 MBCA 101 (CanLII) at para 10
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