Remand Credit

From Criminal Law Notebook

General Principles

See also: Imprisonment

A failure to take into account remand time is an error of principle.[1] 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]

– CCC

Note up: 719(3), (3.1), (3.2), (3.3), and (3.4)

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 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.[8]

The amount of presentence bail and the associated credit does not need to be a precise mathematical calculation.[9]

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.[10]

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.[11]

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.[12] The remainder of the provision has been found constitutional.[13]

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.[14] The time spent serving another sentence is only relevant to sentencing as it is "part of the complete picture for understanding a particular offender".[15] It is an error of law to give credit for time served on other charges.[16]

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).[17]

A "time served" sentence without being associated with time actually spent in custody or detention is not a valid sentence.[18]

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.[19] 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.[20]

  1. ↑ R v Aubin, 2009 BCCA 418 (CanLII), 276 BCAC 251, per Levine JA, at para 2
  2. ↑ R v Orr, 2008 BCCA 76 (CanLII), 228 CCC (3d) 432, per Hall JA, at para 22
  3. ↑ R. v. Lau, 2004 ABCA 408 (CanLII)}}, at para 14
  4. ↑ Lau, ibid. at para 14
    R. v. Wust, 2000 SCC 18 (CanLII), [2000] 1 S.C.R. 455 at para. 44(complete citation pending)
  5. ↑ R v Barnett, 2017 ONCA 897 (CanLII), 138 OR (3d) 401, per Doherty and Rouleau JJA
  6. ↑ R v Hoelscher, 2017 ABCA 406 (CanLII), per Martin JA
  7. ↑ R v Wilson, 2008 ONCA 510 (CanLII), 236 CCC (3d) 285, per Roseberg JA, at para 41
  8. ↑ 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
  9. ↑ R v Persaud, 2015 ONCA 343 (CanLII), per curiam
  10. ↑ 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.")
  11. ↑ 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
  12. ↑ 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
  13. ↑ R v McIntyre, 2017 ONSC 360 (CanLII), 373 CRR (2d) 144, per Akhtar J
  14. ↑ 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
  15. ↑ R v Pammett, 2016 ONCA 979 (CanLII), per curiam, at para 27
    Wilson, supra, at para 46
  16. ↑ Pammett, supra, at para 29
  17. ↑ R v Yue, 2007 ONCA 598 (CanLII), 226 CCC (3d) 349, per MacPherson JA, at paras 34 to 35
  18. ↑ 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
  19. ↑ 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
  20. ↑ 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".

Standard of Proof

Enhanced credit should only be awarded if the accused proves on a balance of probability that it is justified.[1]

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.[2]

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.[3]

Examples of Enhanced Credit

Circumstances in which enhanced credit have been given include:[4]

  1. Conditions of the remand facilities:
    1. lack of available programming and counselling[5]
    2. frequency of lockdowns during remand[6]
    3. duration of time in solitary confinement[7]
    4. other harsh circumstances in the facility such as double bunking, sleeping on floor, violence, etc.[8]
  2. delay post-trial not attributed to the accused:
    1. delay due to court scheduling[9]
    2. request by Court or Crown for a pre-sentence report or Gladue report[10]
    3. multiple court appearances for the purposes of sentencing[11]
  3. delay due to Crown[12]

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.[13]

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.[14]

  1. ↑ R v Stonefish, 2012 MBCA 116 (CanLII), 295 CCC (3d) 52, per Steel JA
  2. ↑ 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
  3. ↑ Stonefish, supra
  4. ↑ R v Stonefish, 2012 MBCA 116 (CanLII), 295 CCC (3d) 52, per Steel JA - summary of circumstances of enhanced credit
  5. ↑ 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
  6. ↑ 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
  7. ↑ 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
  8. ↑ 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
  9. ↑ 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
  10. ↑ 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
  11. ↑ e.g., R v Przybyla, 2012 ABPC 183 (CanLII), per Barley J
  12. ↑ e.g., R c Lefrançois, 2012 QCCQ 5655 (CanLII), per Marleau J
  13. ↑ 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
  14. ↑ 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 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".[1]

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 "inhumane" treatment of detainees even without a Charter application before them.[2]

Evidence

The burden of proof may be satisfied using evidence of "credible information" which can include hearsay.[3]

Standard of Review

Granting additional credit is an exercise in discretion and should be afforded deference.[4]

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 harder time due to the assumed reduction in programming. Accordingly at least some mitigation is permitted.[5]

There has been reduction in sentence for actual contraction of COVID-19 under the credit allocated as "collateral consequences".[6]

Some judges have found that there mere psychological stress from the fear of transmission can also allow for credit.[7]

  1. ↑ R v Duncan, 2016 ONCA 754 (CanLII), OJ No 5255, per curiam, at para 6
  2. ↑ R v Persad, 2020 ONSC 188 (CanLII), per Schreck J, at para 35
  3. ↑ 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.")
  4. ↑ R v Ledinek, 2018 ONCA 1017 (CanLII), per curiam, at para 13
  5. ↑ R v Robinson, 2021 NSPC 20 (CanLII), per Buckle J
  6. ↑ R v AA, 2020 ONSC 3802 (CanLII), per Corrick J
  7. ↑ R v Hearns, 2020 ONSC 2365 (CanLII), OJ No 1648, per Pomerance J at para. 16(complete citation pending)
    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

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 (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]

  1. ↑ R v Millward, 2000 ABCA 308 (CanLII), 48 WCB (2d) 260, per Fraser JA (2:1), 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]

Straddle cases

The pre-2010 law does not apply to those who committed offences before the amendement but were charged afterwards.[4]

  1. ↑ R v Codner, 2013 ONCA 138 (CanLII), 303 OAC 91, per Epstein JA, at para 13
  2. ↑ 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
  3. ↑ 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
  4. ↑ R v Clarke, 2013 ONCA 7 (CanLII), 293 CCC (3d) 369, per Laskin JA

Strict Bail Conditions

The court has discretion to take strict bail as akin to custody when calculating ultimate sentence.[1]

The choice to deny credit or calculate the amount of credit is at the discretion of the judge.[2]

The court may consider the bail conditions that the offender up to the date of sentencing.[3]


If the individual was under house arrest conditions for bail, this may be accounted as a reason to reduce the sentence as the house arrest may have a punitive element to it. This is a discretionary, however, and will usually needed to be justified by showing that the offender's circumstances were particularly tough beyond the average person.[4]

Restrictive bail conditions should be treated flexibly. The amount of credit, if any, is in the discretion of the trial judge to determine.[5]

In Ontario, the following guidelines are suggested:[6]:

  • Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.
  • As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.
  • The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.
  • The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
  • The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender’s liberty; the ability of the offender to carry on normal relationships, employment and activity.
  • Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.

It is an error for the sentencing judge to consider how "necessary" the conditions were.[7]

  1. ↑ Spencer (2004), 2004 CanLII 5550 (ON CA), 186 C.C.C. (3d) 181 (Ont. C.A.); R. v. Gray (2003), 2003 ABQB 473 (CanLII), 338 A.R. 270 (Q.B.); R. v. Hames, 2000 ABQB 958; R. v. Ticknovich, 2004 ABQB 421
    R v Lau, 2004 ABCA 408 (CanLII), at para 15 ("...a trial judge may take account of very strict bail conditions and treat that as akin to custody in calculating a sentence:")
    Contra R v Panday, 2007 ONCA 598 (CanLII), per MacPherson JA (3:0)
  2. ↑ Lau, supra at para 16
  3. ↑ R v Downes, 2006 CanLII 3957 (ON CA), per Rosenberg JA (3:0), at para 23 (“ is now well established that an offender should be given credit for pre-sentence custody. The rationale for doing so comes from the provisions of the Criminal Code, R.S.C. 1985, c. C-46 and judicial recognition of the conditions under which pre-sentence custody is served. Section 719(3) of the Criminal Code expressly provides that the sentencing court may take pre- trial custody into account. As Arbour J. said in R v Wust, ... "while pre-trial detention is not intended as punishment when it is imposed, it is, in effect, deemed part of the punishment following the offender's conviction, by the operation of s. 719(3)".)
  4. ↑ R v Knockwood, 2009 NSCA 98 (CanLII), per Saunders JA
  5. ↑ Downes, supra, at para 36 (“a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach, ... the amount of credit and the manner in which it is to be taken into account as a mitigating factor is a matter for the trial judge.”)
  6. ↑ Downes, supra, at para 37
    R v Ijam, 2007 ONCA 597 (CanLII), per MacPherson JA (3:0), at para 63
  7. ↑ R v Joseph, 2020 ONCA 733 (CanLII), per curiam, at paras 107 to 114

Youth Sentence

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

  1. ↑ R v P(NW), 2008 MBCA 101 (CanLII), 235 CCC (3d) 125, per Monnin JA, at para 10
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