Credit for Pre-sentence Custody

• Author: Steve Coughlan/Alex Gorlewski
• Pages: 382-386

382 Post-trial Matters / Special Post-conviction Procedures

4.2(e) Credit for Pre-sentence Custody

1 : 1 days’ credit

(minimum)1

1.5 : 1 days’ credit

(maximum)

Oender’s

burden5

“[I]f the circumstances justify it”2

• Oender detained

because bail was

cancelled3

• Other reasons

for denying

enhanced credit4

As stated in ss 719(1) and (4) of the Criminal Code, RSC 1985, c C-46 [Code], a

sentence of imprisonment begins when it is imposed — or if an oender is

not yet in custody, when they are “arrested and taken into custody under the

sentence.” If they have spent any time in custody before then, s 719(3) of the

Code allows a court to credit it to the sentence it imposes on them. Although

the section uses discretionary language, stating that “a court may take into

account any time spent in custody . . . as a result of the oence” [emphasis

added], the courts have developed a rm rule that “[a] day of [pre-sentence]

incarceration requires at least a credit of one day towards the sentence”: R v

Summers, 2014 SCC 26 at para 21. This chart represents this 1:1-day minimum

with the solid circle at its centre; the issue that the rest of the chart — and the

law around credit for pre-sentence custody generally — addresses is when a

court should give an oender more than the minimum.

Until 2010, s 719(3) did not specify when the courts could give oenders en-

hanced credit — that is, credit beyond the 1:1-day minimum — or how much.

A practice had developed among sentencing judges, however, of giving out

enhanced credit by default, usually at a ratio of two days’ credit for each day in