Historically, sentencing judges assessing the credit to be assigned to pre-trial custody endeavoured to account for both the delayed opportunity for early release and the harshness that typically characterizes confinement in a remand facility. These two dimensions of loss or deprivation hardened into an almost universally applied metric: each day of pre-sentence custody was treated as the equivalent of two days, which total was then deducted from the sentence which would otherwise be imposed on an offender who had been denied bail. (See, for example, R. v. Rezaie (1996), 1996 CanLII 1241 (ON CA), 112 C.C.C. (3d) 97 (Ont. C.A.); R. v. McDonald (1998), 1998 CanLII 13327 (ON CA), 127 C.C.C. (3d) 57 (Ont. C.A.); and R. v. Wust, 2000 SCC 18 (CanLII), [2000] 1 S.C.R. 455.)

The Truth in Sentencing Act, S.C. 2009, c. 29 came into force in early 2010. It fundamentally altered the settled approach to the assessment of pre-sentence detention by amending s. 719 of the Criminal Code so as to limit credit for “any time spent in custody” to a maximum of 1.5 days for each day of an offender’s pre-sentence detention, “if the circumstances justify it”.

R. v. Doyle, 2015 ONCJ 492 (CanLII) at para 33, per Justice Green.

Section 719 was considered by the Supreme Court fairly recently in R. v. Summers, 2014 SCC 26 (CanLII). Justice Karakatsanis, writing for a unanimous court, concluded that the circumstances referred to in subsection (3.1) need not be exceptional to warrant enhanced credit.  Indeed, the simple loss of eligibility for early release may be a circumstance justifying the enhanced credit provided for in subsection (3.1).  In the post-Summers era, pre-trial custody has been routinely credited at a rate of 1.5 to 1.

Since that time, Ontario courts have held that “in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1).” 

R. v. Doyle, 2015 ONCJ 492 (CanLII); see also R. v. Duncan, 2016 ONCA 754 (CanLII) at para 6.

In considering whether any enhanced credit should be given, the court will consider both

·         the conditions of the presentence incarceration, and

·         the impact of those conditions on the accused. 

In R. v. Duncan, the appellant had served a considerable amount of his presentence incarceration in “lockdown” conditions due to staffing issues at the correctional institution. While the Court of Appeal for Ontario noted that the pattern of “lockdowns” endured by the appellant was worrisome, without further evidence as to the effect of those conditions on the appellant, it was not able to say that the appellant had suffered particularly harsh treatment entitling him to additional mitigation beyond 1.5-1 credit. See also R. v. Henry, 2016 ONCA 873.

Criminal Code

Determination of sentence

719 (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.

 (3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody…