Crédit de détention provisoire

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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. 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.

s. 719
[omis (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) [détermination de la peine – crédit de détention provisoire], 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) [détermination de la peine – justification du crédit de détention provisoire] or (3.3) [compte rendu des procédures] does not affect the validity of the sentence imposed by the court.
[omis (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) ajoutée(s)]

– CCC (CanLII), (Jus.)

---

Credit Discretion

The language of s. 719(3) indicates that a judge is not required to apply remand credit. However, credit should not be denied without "good reason."

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.

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.

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).

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.

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.

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

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.

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.

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. The remainder of the provision has been found constitutional.

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

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).

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

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. 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.

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."

Standard of Proof

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

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.

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.

Examples of Enhanced Credit

Circumstances in which enhanced credit have been given include:

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

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.

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.

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."

"Duncan" credit addresses any "exceptionally punitive conditions" that go beyond the "normal restrictions associated with pretrial custody."

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.

Evidence

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

Standard of Review

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

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.

Very restrictive conditions and COVID-related health risks are examples of circumstances that give rise to "Duncan" credit.

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

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

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. 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.

Duncan credit has been applied where the adverse effects of remand were "over and above" what was contemplated for Summers credit.

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."

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.

Awaiting Extradition

Remand credit is not mandatory where the offender absconds from Canada. The Court may give no credit or limited credit depending on the circumstances including whether the offender attempted to contest extradition.

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. 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.

Prior to the amendments, it was normal for an offender to receive two for one credit for pre-sentence custody.

Straddle cases

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

Strict Bail Conditions

• Strict Bail Conditions Credit

Youth Sentence

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