The use of enhanced credit for pre-trial custody, or “dead time”, has long been a point of controversy among the public. It is often perceived a a mechanism for criminals serving less time then they would actually obtain if they had served the sentence and getting off light as a result. That controversy, and ignorant view of what pre-trial custody actually means spawned Bill C-25, and the misleadingly named Truth in Sentencing Act, S.C. 2009, c. 29. The real truth of the matter is that a person who is convicted of a crime is always entitled to a release sooner than the actual time pronounced in sentence due to remission and parole eligibility.
What was never meaningfully placed in the public debate in attempting to achieve this “truth” in sentencing, is the rationale for enhanced credit. Ironically, those who await their trials and are presumed innocent suffer worse conditions than those individuals properly convicted and sentenced. Persons simply charged of crimes and denied bail do not have access to programs, are housed in deplorable conditions that are often in contravention of international minimum standards, and do not derive any benefit from the unavailability of remission and parole ineligibility for time spent while on remand (prior to sentence). As a result, judges would carefully take into account all these factors, among others, in imposing a proper and just sentence and granting enhanced credit prior to the Act.
After the Truth in Sentencing Act, Parliament limited the amount of time a judge could take into account and deduct off a sentence to a maximum ratio of 1.5 to 1. It was argued by prosecutors that in light of the Act, the higher ration of 1.5:1 could only be used in exceptional cases and not as a norm simply because a person must endure the conditions and properties of pre-trial custody. On Tuesday, March 12, 2013 the Court of Appeal for Ontario disagreed in the case of R. v. Summers and held that the 1:1.5 ratio is not “exceptional” and may be applied by a trial judge in considering all relevant circumstances including ineligibility for remission and parole while in remand custody.
The Case of R. v. Summers: enhanced credit is not exceptional
In the case of Summers, supra, the trial judge pointed out the absurdity of refusing enhanced custody to a person who is simply charged and awaiting trial over a person who is properly sentenced and likely released on parole after serving 1/3 or 2/3 of their sentence.
[I]f you’re going to treat someone who is convicted in such a way as to allow them some time out of jail by way of granting parole, it seems to me it’s rather inequitable to say to someone who has not yet gone to trial that you get no similar credit for the fact that you’re sitting here day-after-day in jail.
I just say it’s absolutely unfair to treat someone who is presumed to be innocent more harshly than we would treat someone who has been found to be guilty … it simply is not fair to say to someone we presume to be innocent, you serve every day without any credit beyond the actual day-for-day ratio.
In upholding the trial judge’s decision to grant the 1.5 ratio for the pre-trial custody, the Court of Appeal noted at paragraph 37 that:
The conceptual rationale for crediting pre-sentence custody has traditionally been based on three considerations: (1) as in issue in this case, parole eligibility and statutory release and remission provisions do not take account of time spent in pre-sentence custody; (2) generally, detention centres do not provide educational, retraining or rehabilitation programming for those in custody waiting trial; and (3) due to overcrowding, inmate turnover, labour disputes and other factors, the custodial conditions for remand prisoners can be unusually onerous: Wustat paras. 28 and 38; Rezaie at para. 25; R. v. McDonald (1998), 40 O.R. (3d) 641 (C.A.), at paras. 31-32; Francis at para. 14.
Justice Cronk further held at paragraph 44 that:
In my opinion, the varying treatment by sentencing judges of credit to be assigned for pre-sentence custody highlights a fundamental aspect of the complex calculus that is inherent in the task of crafting an appropriate sentence. On the one hand, the real-world features of pre-sentence custody dictate that, in the interests of fundamental fairness and the integrity of the criminal justice system, some credit for pre-sentence custody usually ought to be afforded on sentencing. On the other hand, the same interests demand that crediting for pre-sentence custody not overwhelm the sentencing process itself. The resulting tension between these criminal justice imperatives informs the disputes that have arisen concerning the proper interpretation of ss. 719(3) and (3.1) of the Code.
The fundamental question in this appeal was whether the 1.5 ratio permitted under section 719(3.1) of the Criminal Code is available only in “exceptional” circumstances, or does the inherent nature of pre-trial custody justify the enhanced credit of 1.5 to 1. The Crown argued that there must be something more than the unavailability of remission or parole eligibility during remand custody to justify such a ratio.
After a very lengthy analysis and statutory interpretation of 719(3.1), the Court of Appeal ultimately rejected the Crown’s arguments and held that “the absence of remission and parole eligibility during remand custody as a relevant and proper circumstance for the potential grant of enhanced credit for pre-sentence custody under s. 719(3.1).” and can be taken into account in assessing whether the “circumstances justify it”, i.e. the enhanced custody.
However, the Court did make it clear that enhanced credit is available under 719(3.1) “to every remand offender on the basis of the absence of remission and parole eligibility. There must be some basis in the evidence or the information before the sentencing judge to support the conclusion that this factor merits enhanced credit for a particular offender in a given case.” Fortunately, it is appropriate to be able to simply point, as counsel, that had the offender been sentenced they would have probably received remission and/or statutory release. This of course means that the 1:1.5 ratio may be available to most persons sentenced who have served time in custody prior to trial.
One point of caution however, the court noted that if there is evidence that a person has intentionally delayed the proceedings, a trial judge may take that into account in denying enhanced credit for all or some of that time served in advance. Otherwise, “…properly construed, s. 719(3.1) of the Code permits a sentencing judge to credit pre-sentence custody up to a maximum of 1.5:1 for each day spent in pre-sentence custody where, on consideration of all relevant circumstances, such credit is necessary to achieve a fair and just sanction in accordance with the statutory scheme for sentencing and punishment set out in the Code. On a proper record, the relevant circumstances that may justify this enhanced credit include ineligibility for remission and parole while in remand custody.”
Congratulations and thanks to counsel Timothy Breen, and Criminal Lawyers’ Association intervenors Russell Silverstein, Ingrid Grant and Corbin Cawkell who all argued this very important and beneficial case for the defence bar.