BCCA: Certain Restrictions on Granting Enhanced Credit for Pre-Trial Custody are Unconstitutional


In determining the sentence to be imposed on a person convicted of an offence, a court may give credit of 1.5 days for each day spent in pre-sentence custody “when the circumstances justify it” (Criminal Code, RSC 1985, c C-46, s. 719(3.1)). The Supreme Court of Canada in Summers found that the loss of access to early release and parole constituted a circumstance that justified the enhanced 1:1.5 credit, as offenders who are not granted bail and do not receive enhanced credit would serve longer terms in prison than the same offender who is released on bail.

Section 719(3.1) prohibits giving this enhanced credit for those who have allegedly breached bail, meaning the maximum credit anyone who had allegedly breached bail could receive is one day for each day spent in pre-trial custody. The BC Court of Appeal has ruled that this is over-broad, as offenders who have neither committed violent offences nor present a risk to public safety will be unnecessarily deprived of liberty. As a result, the portion of s. 719(3.1), as it relates to those who have allegedly breach bail, violates s. 7 of the Charter and is of no force and effect.

The court noted that a sentencing judge can take prior conduct and bail breaches into account when crafting a sentence, however that sentencing judge is not constrained from granting 1:1.15 credit where it is justified.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.