Les principes applicables concernant le crédit possible de la détention pré-sentencielle en vertu de 719 (3.1)

R. v. Brenton, 2010 CanLII 15610 (NL P.C.)

[14] As can be seen, the provision of a credit for pre-sentence custody is not mandatory. The Court “may” do so, but is not required to provide any credit. If the Court determines that a credit should be provided, then it must limit that credit “to a maximum of one day for each day spent in custody.” This requirement is subject to one exception which is contained in section 719(3.1) of the Criminal Code. It states as follows:

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).

[15] Thus, the Court can provide a credit of one and one-half days for each day spent in custody, but only if the “circumstances justify it.” Section 719(3.1) does not define or describe what circumstances would justify an increase from the maximum credit mandated by section 719(3) of the Criminal Code, but an increase from a one for one credit is not automatic and requires circumstances which justify an increase. This is not an appropriate case for a consideration of what will and will not constitute sufficient circumstances, but more than a period spent in pre-sentence custody will be required for a credit beyond one for one to be granted. The Court must be able to explain why it is providing any credit for pre-sentence custody or why it is granting an increase in the maximum credit prescribed by section 719(3) (see section 719(3.2)).

[16] The applicable principles can be summarized as follows:

1. the court “may” consider any period spent in pre-sentence custody by an offender in determining an appropriate sentence;

2. the court is not required to provide a credit for such pre-sentence custody when imposing a period of imprisonment;

3. if a credit is given for pre-sentence custody, then the maximum allowed is one day of credit for every day spent in pre-sentence custody. I would describe this as the general rule. Thus, in the vast majority of cases an offender who has spent a period of time in pre-sentence custody will receive a one for one credit;

4. this general rule is subject to one exception: the credit can be raised to one and one-half days for each day spent in custody, but only if the “circumstances justify it.” Since this is an exception to the general rule, evidence in support of an enhanced credit will normally be required. The presumption that pre-sentence custody deserves an enhanced credit no longer exists and a two for one credit is no longer an option;

5. if any credit is given to an offender for time spent in pre-sentence custody, the Court must indicate why it has been given; and

6. when imposing sentence in a case in which there has been a period of pre-sentence custody, the Court must indicate the following:

i. the period of time the offender spent in pre-sentence custody;

ii. the period of imprisonment which would have been imposed, but for the pre-sentence custody;

iii. the amount of the credit given; and
iv. the sentence imposed.