BACKGROUNDER

Credit for time served in pre-sentencing custody

Bill C-25, An Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody)

Upon Bill C-25 coming into force, the amount of credit that can be granted for time served in custody prior to sentencing (remand custody) will be capped at a ratio of 1 to 1. Only where circumstances justify it can credit for time served be given at a ratio of up to 1.5 to 1, and the courts will be required to explain these circumstances.

For example, if an offender who served 9 months in remand custody is sentenced to 4 years imprisonment, the net sentence will be 3 years and 3 months (4 years minus 9 months). Credit at a ratio of up to 1.5 to 1 will only be permitted where circumstances justify it, and courts will be required to explain these circumstances.

Credit for time served by offenders who have violated bail conditions, or been denied bail because of their criminal record will be limited to a maximum 1-to-1 ratio, with no enhanced credit beyond 1 to 1 permitted under any circumstances.

These amendments bring greater consistency and certainty to sentencing, and help address provincial and territorial concerns.

Provincial-Territorial Concerns

Correctional facilities in the provinces and territories are experiencing ever-increasing numbers of accused being held in pre-sentencing custody, to the point where the population in remand now exceeds the population in sentenced custody. The Federal/Provincial/Territorial (FPT) Sentencing Working Group and the FPT Heads of Corrections have explored contributing factors and possible solutions. There is strong support in the provinces and territories for limiting credit for time served as one way to help reduce the size of their remand populations.

The Current Practice

According to the Criminal Code, if an individual who is accused of a crime is not granted bail, they are held in custody until they are sentenced. Under the current system, when sentencing takes place, the courts often uses a 2-to-1 ratio for the credit given for pre-sentencing custody. On rare occasions, the credit could be as high as 3 to 1 where conditions of detention are more difficult. Giving extra credit for time served has become the practice in order to take into account certain circumstances such as lack of programming or activities for inmates, overcrowding in the facility and the fact that time spent in remand custody, unlike time spent in sentenced custody, does not count towards a prisoner's eligibility for parole or statutory release. Enhanced credit for time spent in pre-sentencing custody is seen as one of several factors that have contributed to considerable increases in remand populations over the past several years.

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Department of Justice Canada
October 2009