Restrictions on pre-sentence credit comes into force

As of Monday, February 22, 2010, the new rules on what, if any, credit may be given to pre-sentence custody comes into effect across Canada.  A summary of the enactment, as found on the Parliament of Canada website, are as follow:

Description and Analysis

A. Judicial Release (Clause 2)

At the bail hearing, a judge may order that an accused who has a criminal record be placed in pre-sentencing custody.(20) Clause 2 of the bill provides that the judge must then state that reason in the record. This provides the judge who later sentences the person with the reason for the pre-sentencing custody order, and (under clause 3 of the bill) prevents the judge from allowing more than one day’s credit for one day in pre-sentencing custody.

B. Credit for Pre-sentencing Custody Provided in the Bill

1. Limits on Credit for Pre-sentencing Custody (Clause 3)

Clause 3 of the bill restricts judicial discretion by setting maximum limits on credit for pre-sentencing custody. A judge who sentences someone after conviction still has the discretion to allow or deny credit for pre-sentencing custody and to determine how much credit will be allowed, without exceeding the maximum set by the bill.

In general, the bill changes the two days for one currently credited to one day for one, that is, it limits the credit for pre-sentencing custody to a maximum of one day for each day spent in pre-sentencing custody (new section 719(3) of the Code). That maximum applies to all cases in which the accused was in pre-sentencing custody because of his or her criminal record(21) or breach of conditions of release on bail, including the commission of a criminal offence (new sections 719(3) and 719(3.1) of the Code).

The bill also provides for more credit to be given – a maximum of one and one-half days for each day spent in pre-sentencing custody – but only “if the circumstances justify it” (new section 719(3.1) of the Code). However, it gives no examples of the kind of circumstances in question.

By reducing the credit allowable for pre-sentencing custody, the bill will probably result in the imposition of longer sentences.

2. Mandatory Reasons and Statement of Reasons in the Record (Clause 3)

Clause 3 of the bill provides that a judge who decides to allow credit for pre-sentencing custody must give reasons for the decision and state those reasons in the record (new section 719(3.2) of the Code). Other matters that the judge must state include the amount of time credited (e.g. one day for one day credit), the sentence actually imposed and the term of imprisonment that would have been imposed if credit had not been given for pre-sentencing custody (new section 719(3.3) of the Code).

Although studies tend to show that judges commonly give two days’ credit for each day of pre-sentencing custody, judges currently have complete discretion as to whether to grant any credit and as to the amount of time to be allowed, taking the circumstances of each case into consideration. At present, however, there are no data concerning how judges apply credits for pre-sentencing custody to the sentences they impose. We do not know how common the practice is, or what the total length of sentences of incarceration imposed is. In addition, official sentencing statistics do not reflect time served in pre-sentencing custody, and this may give the impression that total sentences imposed at sentencing are less harsh than they are in reality. This means that the statistics do not give a true picture of the total sentence, and in some cases this may contribute to the idea some people have that the justice system is too soft on offenders found guilty of violent crimes. This incomplete picture of the sentences imposed by the courts may also undermine public confidence in the administration of justice.

The requirement that the judge state the amount of time credited and the term of imprisonment that would have been imposed had the individual not been incarcerated during the judicial proceedings may show that a fair and appropriate sentence for the offence was imposed by the judge. The requirement that the judge justify allowing credit of more than one day for one day in pre-sentencing custody may provide a more accurate picture of how the sentence fits the crime.

3. Application of the New Rules (Clause 5)

As a final point, it is important to note that the new rules governing credit for pre-sentencing custody will apply only to persons charged after the bill comes into force.