Department of Justice Canada

Department of Justice Canada

March 27, 2009 13:14 ET

The Government of Canada Introduces Legislation Restricting Credit for Time Served

OTTAWA, ONTARIO--(Marketwire - March 27, 2009) - The Honourable Rob Nicholson, P.C., Q.C., M.P. for Niagara Falls, Minister of Justice and Attorney General of Canada, today introduced legislation to clearly limit the amount of credit that the courts may grant to convicted criminals for the time they served in custody prior to their sentencing.

"Our Government is following through on its commitment to ensure that individuals found guilty of crimes serve a sentence that reflects the severity of those crimes," said Minister Nicholson. "The legislation I have introduced today would strictly limit the amount of credit that may be granted for time served in custody prior to sentencing, bringing greater certainty and clarity to the sentencing process."

The proposed Criminal Code amendments in this legislation would provide the courts with sentencing guidance and limits for granting "credit for time served". Specifically, the legislation would:

- make it the general rule that the amount of credit for time served be capped at a 1-to-1 ratio, i.e., give only one day of credit for each day an individual has spent in custody prior to sentencing;

- permit a credit to be given at a ratio of up to 1.5 to 1 only where the circumstances justify it;

- require courts to explain the circumstances that justified a higher ratio; and,

- limit the pre-sentencing credit ratio to a maximum ratio of 1 to 1 for individuals detained because of their criminal record or because they violated bail, with no enhanced credit being granted under any circumstances.

Courts typically take into account certain factors in determining the amount of credit for pre-sentencing custody, such as overcrowding or a lack of programming for inmates. This has resulted in courts traditionally awarding credit at 2 to 1 for pre-sentencing custody. On rare occasions, the credit awarded has been as high as 3 to 1.

"Our Government continues to take tough action against crime and stand up for victims in this country," said Minister Nicholson. "I appreciate the support from my provincial and territorial counterparts for this legislative amendment to provide greater truth in sentencing. Our Government calls on all parties in Parliament to provide unanimous consent to ensure fast passage of this important legislation."

This proposed legislation is one of a number of criminal justice bills that has been introduced in this session of Parliament that will help ensure the safety and security of Canadians. This Government is continuing to take tough action against crime.

An online version of the legislation will be available at www.parl.gc.ca.



BACKGROUNDER

Credit for time served in pre-sentencing custody

Amendments are being proposed to the Criminal Code that would cap the amount of credit that can be granted for time served in custody prior to sentencing (remand custody) at a ratio of 1 to 1. Only where circumstances justify it would credit for time served be given at a ratio of up to 1.5 to 1, and the courts would be required to explain these circumstances.

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. When sentencing does take place, the courts often use a 2-to-1 ratio for the credit given for pre-sentencing custody. On rare occasions, the credit can be as high as 3 to 1where 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 full 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. Another factor that has significantly affected the number of accused held in remand is that court cases are becoming more and more complex, with many criminal cases now involving ten to twenty appearances before the court. Trials are longer, as is the amount of time an accused remains in custody awaiting sentencing.

There is a belief that some offenders deliberately choose remand custody in order to reduce their overall length of time in sentenced custody, i.e., they will serve a shorter time given the typical credit received for pre-trial custody. However, studies indicate that the most important factor contributing to the significant increase in the remand population is the fact that court cases are tending to become more complex and therefore lengthier.

The awarding of credit for time served contributes to a public perception that sentences imposed are more lenient than they actually are, especially if no explanations for the length of a sentence are provided at the time of sentencing. This leads to the public being unaware of the extent of the pre-sentence detention, and under what kind of conditions this time was served.

Proposed Amendments

The proposed amendments to the Criminal Code will, as a general rule, cap the amount of credit for time served in pre-sentencing custody at a 1-to-1 ratio. For example, if an offender who served 9 months in remand custody is sentenced to 4 years imprisonment, the net sentence would 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, or been denied bail because of their criminal record will also be limited to a maximum 1-to-1 ratio, and no enhanced credit beyond one to one will be permitted under any circumstances.

These amendments will bring greater consistency and certainty to sentencing, and help address provincial and territorial concerns about the growing number of persons being held in custody prior to sentencing.

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.

Version francaise disponible.

Contact Information

  • Office of the Minister of Justice
    Darren Eke
    613-992-4621
    or
    Department of Justice
    Media Relations
    613-957-4207
    www.canada.justice.gc.ca