Pre-sentence time spent at the detention centre is called dead time. Dead time is hard time.
Programs are rare, crowding is common, and accused live in a state of uncertainty awaiting the outcome of their proceedings. There’s no parole or statutory remission. If acquitted, recompense is rare and it can’t be banked for the next arrest.
Prior to Feb. 22, 2010, the usual calculation throughout Canada for adults serving pretrial custody involved a system of double credit. After doubling time spent in custody, the judge subtracted that number from the overall sentence.
The advent of the Truth in Sentencing Act brought the death of dead time as we’ve known it. It abolished the standard calculation of two for one. Now the norm is 1:1 with enhanced credit of up to 1.5:1 “if the circumstances justify it.”
Section 719(3) states that the court may take any time spent in custody into account but it shall limit credit to one day for each day in remand.
This is moderated by s. 719(3.1), which provides that the court can grant a maximum of 1-1/2 days unless the person was ordered detained because of a previous record or had breached or was about to breach the release conditions.
Somewhat anomalously, if those facing charges consent to detention rather than going through a contested hearing, they remain eligible for the enhanced 1.5:1 credit despite having a long record or having breached bail.
In
R. v. Johnson, the defence brought an argument under the Charter of Rights and Freedoms arguing that the new provisions violated the accused person’s s. 15 equality rights and his right under s. 7 not to be deprived of liberty except in accordance with the principles of fundamental justice.
Marvin Johnson, who had previous convictions for cocaine trafficking, had consented to his detention on drug charges.
Justice Melvyn Green had serious concerns about the constitutional validity of the new legislation but didn’t strike it down.
While accused denied bail would end up serving longer terms of incarceration than those on release, Green held that if the word “circumstances” included loss of remission and delayed parole eligibility, the court could give credit beyond 1:1.
He credited Johnson on a 1.5:1 basis for the 12 months he had spent in custody in a detention centre. He gave enhanced credit because the circumstances of being in a detention centre entitled Johnson to it.
Justice Anne Derrick of the Nova Scotia provincial court applied Johnson in granting 1.5:1 credit in
R v. Dann. In that case, Antron Dann also hadn’t sought bail.
In another case, Orville Campbell had been arrested at Pearson International Airport for importing $165,000 worth of cocaine from Jamaica. On his arrest, he refreshingly said something on the lines of, “I just want to get this over with, I just got caught.”
Using similar reasoning to the conclusions in Johnson, Superior Court Justice Casey Hill granted 1.5:1 credit.
In his view, the circumstances justified enhanced credit for pre-sentence custody given the offender’s separation from his family in England, the conditions in the detention centre, and the ineligibility of time served in calculating parole. Hill credited his 106 days in custody as 159 days.
Segregation may or may not lead to granting enhanced credit. In an Internet-luring case involving child pornography, the court reached a different result. It hadn’t been told of how the accused’s segregation and crowded cell differed from incarceration in a reformatory or penitentiary.
The judge gave enhanced credit only for the period that elapsed after plea and pending production of the pre-sentence report. Parliament’s clear intention was that credit beyond 1:1 was the exception rather than the rule, the court held.
Other judges have also concluded that credit beyond 1:1 is the exception. Newfoundland provincial court Justice Wayne Gorman, for example, called 1:1 the “general rule” in
R. v. Brenton.
So the decisions up until now are contradictory. As a matter of defence strategy, note that clients are most likely to get enhanced credit if they have no criminal record or have consented to detention.
If there’s sufficient evidence to show a specific impact by the detention or the conditions of it, the client is more likely to receive enhanced credit. Similarly, if delays were outside the control of the accused, counsel can argue for enhanced credit.
Rosalind Conway is a certified specialist in criminal litigation. She can be reached at [email protected].
