Pre-Sentence Custody: ONCA Wades in the Murky Waters of Enhanced Credit
In R v Summers, 2013 ONCA 147 and subsequently R v Curry, 2013 ONCA 420, the Ontario Court of Appeal tackled the issue of exactly what circumstances allow for enhanced credit to be given for pre-sentence custody upon a finding of guilt. Following legislative changes in early 2010, the standard of giving 2:1 credit evaporated in favour of a limited 1.5:1 credit granted only “when the circumstances justify it.”As such, the “circumstances” in which enhanced credit should be given were left largely to judicial interpretation.
In Curry, it was noted that some trial judges are using an extremely narrow interpretation, giving enhanced credit only in the most exceptional of circumstances. The ONCA has been consistent in both Summers and Curry, indicating that circumstances should be viewed broadly, with the possibility of including ineligibility for parole, onerous remand during custody, and a lack of rehabilitative programming. However, Summers was granted leave to the Supreme Court of Canada in August 2013, so it appears that Canada’s highest court will have the final say.
BACKGROUND ON ENHANCED CREDIT FOR PRE-SENTENCE CUSTODY
Until recently, upon receiving a custodial sentence following a finding of guilt, an accused person who spent a period of time in custody prior to sentencing would receive enhanced credit. The widely established standard was a credit of two days for each day spent in pre-sentencing custody (2:1). This was statutorily facilitated by s. 719(3) of the Criminal Code. This was effectively a sign of good faith by the criminal justice system acknowledging that while an offender spent time in custody prior to a finding of guilt, the individual suffered certain detriments; in spite of the technical presumption of innocence.
Further, provincial jails do not typically avail rehabilitative or educational programming to remand inmates, and are marred by overcrowding and frequent “lockdown” periods where inmates may spend multiple consecutive days without leaving their cells. Additionally, although it has been found that these inmates are not being punished in a way that necessarily violates their Charter rights (as held in R v Sanchez, 1996 ONCA,) they are still nonetheless experiencing a myriad of punitive measures.
Finally, except where a sentence of life imprisonment is sanctioned, pre-sentence custody is not factored into parole calculations, effectively extending the time that a person who served pre-sentence custody would serve, relative to a similarly punished counterpart who made bail prior to sentencing.
Despite this wide practice of assigning 2:1 credit for pre-sentence custody, in February 2010 federal legislation was enacted that drastically reshaped this approach. The primary concern of the legislature was that offenders were being overcompensated, and that the old approach inhibited the efficiency of the criminal justice system. Following the enactment of the Truth in Sentencing Act (Bill C-25), s. 719(3) was modified to limit judicial discretion in assigning pre-sentence custody to 1:1 unless the “circumstances justify” enhanced credit. This enhanced credit is capped strictly at 1.5:1. The exceptions to the new 1:1 rule are contained within ss. 719(3.1) to (3.4) of the 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 unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).
(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.
Record of proceedings
(3.3) The court shall cause to be stated in the record and on the warrant of committal the offence, the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed.
Validity not affected
(3.4) Failure to comply with subsection (3.2) or (3.3) does not affect the validity of the sentence imposed by the court.
RECENT APPELLATE DECISIONS FOLLOWING BILL C-25
Although the amendments to s. 719 have been in effect for over three years, it was not until this year that the appellate courts have really delved into the issue of enhanced credit for pre-trial custody under the new framework. R v Summers has become the new standard for assigning enhanced credit in Ontario, although the Crown has been granted leave to appeal to the Supreme Court of Canada.
The sole issue in Summers was whether a sentencing judge had the discretion to credit pre-sentence custody higher than the prescribed 1:1 ratio to account for the accused’s loss of remission and parole eligibility while remanded in custody. In the lower court, the accused pleaded guilty to manslaughter with respect to the death of his infant daughter following nearly 11 months in pre-trial custody. In rendering an 8-year sentence, the sentencing judge held that the lack of parole eligibility during his pre-sentence custody period qualified him for enhanced credit. As such, the accused was given 1.5:1 credit for the time spent, and the Crown appealed the sentence solely on the basis of the enhanced credit.
The ONCA noted that the Nova Scotia Court of Appeal has recognized that there are “two general camps” in interpreting the new s. 719 rules for enhanced credit (para 48). The first camp (and the one that the Crown advocated in Summers,) maintains that credit at a rate greater than 1:1 is truly left for exceptional circumstances, beyond lack of parole eligibility. The second camp does not believe that exceptional circumstances need be shown to justify enhanced credit, even with the amended legislation and addition of s. 719(3.1). At para 117 in Summers, the ONCA confirmed that enhanced credit for pre-sentence custody is still in play, but only to the new maximum statutory restriction of 1.5:1. Further, this enhanced credit is potentially available where there is evidence before the court that the absence of remission and parole eligibility are applicable factors. This defeated the Crown’s argument that the absence of parole eligibility was only a crediting factor up to a maximum credit of 1:1 (assuming a spectrum of credit for pre-sentence custody ranging from 0:1 to 1:1; paras 55-59).
In Summers, 1.5:1 credit for the accused was deemed appropriate in reviewing his likelihood for early parole based on his good behaviour while in custody, and the fact that he pleaded guilty at a relatively early instance saving the victim’s family from a long and emotional trial (paras 124-125).
The ONCA’s ruling in Summers was swiftly reaffirmed in R v Curry, 2013 ONCA 420. In Curry, the accused was given 1:1 credit for his 20 months spent in pre-sentence custody, upon being sentenced to 3.5 years imprisonment for possession of a loaded, prohibited weapon. He appealed the conviction itself and the sentence on both constitutional grounds (with respect to the mandatory minimum), and on the basis of the 1:1 credit for remand custody, which he argued should have been calculated at 1.5:1 (para 11).
In this case, it was argued that 1.5:1 credit was appropriate because of the harsh custodial conditions at the Don Jail and for the accused’s ineligibility for statutory remission and parole while in custody. This argument was rejected by the trial judge on the basis that they went ahead with a trial (including a Charter motion,) where there was “no realistic chance of success.” Not surprisingly after Summers, the ONCA in Curry found this to be in error, giving particular weight to the onerous conditions at the Don Jail. This effectively reestablished one of the “circumstances” under which enhanced credit should be considered.
If Parliament’s concern with enhanced credit for pre-sentence custody is the potential overcompensation and lack of parity, then a broad 1.5:1 credit would be an appropriate solution (and this is indeed what the Crown cautioned against in Summers; para 89). Nonetheless, in a criminal justice system that purports rehabilitation, to achieve true justice during detention there are many systemic factors that need to shift. Jails are overcrowded and understaffed, bail is becoming more difficult to meet, and there is a lack of treatment programs in provincial jails. Until these issues are resolved, it is difficult to imagine an instance when remand conditions would be such that they truly did not dictate the maximum enhanced credit allowed in s. 719(3.1). The difficulty with the Summers appeal is that it effectively requires some form of proof of the remand conditions (e.g., number of days in lockdown, etc), which in many cases is difficult to obtain. As such, a high threshold appears to be set for receiving enhanced credit. It will be up to the Supreme Court to decide whether enhanced credit should be truly “exceptional” as indicated in the Code, or whether the relatively liberal judicial interpretation of the “relevant circumstances” should apply.