Detention in custody before sentencing can play a significant role in a criminal case in Canada. In the context of sentencing, a person in custody who is released after an arrest and continues to be in custody until trial, plea, or sentencing can have this time taken into account when determining the sentence. The Criminal Code grants sentencing judges discretion to give credit for qualifying pre-sentence custody and imposes limits on the amount that can typically be given. This information will give you valuable insight during your communication with a criminal lawyer regarding sentencing and the amount of time you will serve.
The Purpose of Custody Credit
The credit for pre-sentence custody differs fundamentally in nature from imprisonment commencing after the sentence has been imposed. A person in remand custody has not been sentenced and, consequently, his period of detention should be taken into account when fixing the sentence. The Canadian courts have ruled that credit for pre-sentence custody serves to mitigate the effect of having to remain in custody until sentencing. In addition, the Supreme Court of Canada has held that pre-sentence detention can be more restrictive than post-sentence incarceration as remand facilities do not always provide the opportunity for rehabilitation, education, and training.
To clarify, the credit is not intended to wipe out the period of detention. This means that a sentencing judge can take this time into account when imposing a sentence. It must also be stressed that Canadian law does not interpret such credits as a form of backdating of the sentence. The Supreme Court has ruled that when a sentencing judge is considering the imposition of a sentence, she can take into account time spent in custody by virtue of the fact that the offender was remanded in custody. As a result, there arises a distinction between the sentence that has been imposed and the term of imprisonment actually served.
The Basic Credit Rules
The credit for pre-sentence custody is mainly provided by Section 719 of the Criminal Code . According to Section 719(3), the court may provide credit for time spent in custody as a result of the offence. The normal credit is one day for every day in custody. Nevertheless, Section 719(3.1) allows the court to give credit for up to one and one-half days for each day in custody under specific circumstances.
I think it is vital to emphasize that enhanced credit is not granted by default. The judge must find that the circumstances of the case require an increase in credit for time spent in custody. Furthermore, the law requires that the court specify any credit for pre-sentence custody and record the information on custody and credit. Therefore, the amount of credit is not an open question for the accused.
The Importance of Accurate Custody Records
Accurate information on the length of a custody is crucial in order to assess which credit, if any, applies. The court needs to know the amount of qualifying custody time that was served as a result of the crime. Thus, the dates of arrest, release, changes in custody, and other factors, may be highly relevant in the submissions to the court. The inaccuracies in calculation may lead to errors in credits, which could impact the sentence significantly.
Therefore, a person who is sentenced must go over the custody details with their lawyer and make sure that the dates provided are accurate. For instance, a criminal lawyer Mississauga would look at the relevant records in court and correctional service in order to prepare submissions. The calculation must be done individually, depending on the circumstances of the case – not all of the time spent in custody will be considered the same.
Circumstances Supporting Enhanced Credit
The Criminal Code allows for credits of up to one and one-half days for each day spent in pre-sentence custody when the circumstances warrant. It is important to note that pre-sentence custody can include various forms of detention and that the conditions of such custody can be markedly different than those to which a sentenced offender is subjected while in institutional custody. The Supreme Court of Canada has acknowledged that pre-trial detention can be more restrictive and that there are differences in the programs available to offenders in custody awaiting trial.
The issue of enhanced credits is one for the sentencing court to determine and should not be viewed as a matter of entitlement. The court should be guided by the circumstances of the particular case in deciding whether enhanced credit is appropriate. Given the fact that the statute provides for sentencing judges to have discretion in the matter of credits for pre-sentence custody, it is logical that the circumstances of the particular case will often be determinative of whether enhanced credits will be awarded.
The Relationship With the Final Sentence
Custody credit plays a significant role in the sentencing of any convicted person. For instance, if a court finds that a portion of the offender’s custody preceding the sentence should be counted, this time will be deducted from the sentence. First, the court has to decide on the sentence, and then it has to grant credit in accordance with the Criminal Code. According to the law, the records must state the sentence that would have been imposed without custody credit, the amount of credit awarded, and the sentence actually imposed.
Therefore, it is essential that sentencing discussions address custody credit. It becomes especially crucial where the period of custody prior to sentencing is substantial. Moreover, a difference in a day or two in the credited time can make a significant difference in the amount of time spent in custody. Thus, it is essential to discuss custody credit before imposing a sentence because it gives the accused a more precise idea of the sentence’s practical consequences.
Why Legal Advice Matters
Sentencing a defendant includes more factors than the mere counting of days in prison. The court takes into account sentencing principles, the nature of the offence and offender, and an appropriate penalty, which custody credits contribute to. A lawyer can help by determining which time intervals may be eligible for credits, if enhanced credits are due, and what effect the credits would have on the sentence.
Furthermore, legal counsel can assist by dispelling misconceptions about credits. For instance, a defendant may be of the opinion that for every day spent in custody, a particular number of days is subtracted from the sentence. According to the Supreme Court, credits for pre-sentence custody detention cannot be granted mechanically or automatically as a matter of law. Therefore, a careful assessment of the circumstances is required in each case.
Time spent in pre-sentence custody can be an important consideration in the sentencing of a criminal offence in Canada. Section 719 of the Criminal Code allows the court to take into account any custody serving as a qualifier and generally limits the credit to one day for every day spent in custody, while in some cases it can be extended to one and a half days if the circumstances of the case require. Therefore, I believe that every person who is about to be sentenced should carefully consider the time they have spent in custody and the credit that the court might assign based on their experience.
