Pre-sentence custody refers to the period of time an individual spends in jail awaiting the completion of their matters. While some people facing criminal charges are allowed to be out of custody on bail, others must remain in jail until their matters have come to an end. In some circumstances, that means they spend months or years waiting for their day in court.

During this time, the accused individual has not been proven guilty of their alleged offence(s), and yet is in custody. This time does not count towards any calculation of parole or early release eligibility. Additionally, provincial jails / remand centres are often overcrowded, understaffed, and subject to frequent periods of “lockdown” when the individuals are kept in their cells for extended periods.

To recognize these circumstances, judges began to award “enhanced credit” for time in pre-sentence custody. Prior to 2009 it was common to award credit on a 2:1 or even 3:1 basis. In these cases, a person could be in custody for 1 week, but have it counted as though they had served three weeks of their sentence (if they eventually received one).

However, this is no longer the case. The Conservative Government, with their “tough on crime” stance, enacted the Truth in Sentencing Act (Bill C-25), which placed a limit on judicial discretion in assigning pre-sentence custody and aimed to put an end to routine enhanced credit. The Act does allow for an exception if the “circumstances justify” enhanced credit, in which case credit is capped at 1.5 to 1 day.

Ultimately, this issue found its way to the Supreme Court of Canada. In a case called R v Summers, the Court ruled that loss of eligibility for parole and statutory release would fall within the category of circumstances which justify the granting of enhanced credit.

The result has been that, in practice, the expectation is that each offender will receive enhanced credit at 1.5 to 1 for their pre-sentence custody. That means that if an offender serves 20 real days in prison, they will be credited as having served 30 days. It is important to note that if there is evidence that an accused intentionally delayed proceedings in order to take advantage of this enhanced credit, then a judge may choose to deny enhanced credit for all or part of the time served pre-sentence.

If you have any questions or would like to find out more about pre-sentence custody and enhanced credit, contact Cassandra or Kristen at DeMelo Law for more information.