An Ontario man has appealed his sentence after being convicted of Manslaughter. He was charged with Murder and proceeded with a trial in front of a judge and jury. He was sentenced to eight years of custody minus his pre-sentence custody, credited at a 1:1 basis.
He appealed his sentence arguing that the judge did not give enough weight to the circumstances of the offence and that his sentence should have been five years. The Ontario Court of Appeal dismissed the sentence appeal.
The man also appealed the amount of credit he was given for his pre-sentence custody. The Court followed the Supreme Court of Canada decision of R. v. Summers, 2014 SCC 26, and credited the man at a ratio of 1.5:1 for the time he spent in pre-sentence custody.
 The pre-trial custody ground of appeal is conceded by the Crown. I note that the sentencing judge did not have the benefit of the Supreme Court of Canada’s decision in R. v.Summers 2014 SCC 26 (CanLII),  S.C.J. No 26 at the time of sentencing. Calculating pre-trial custody on a 1.5 to 1 basis increases pre-trial custody by 13 months to a total of 39 months.
The Manitoba Courts have yet to conclusively decide the issue of credit for pre-sentence custody. The concept of getting 1.5:1 credit for time spent in jail before a person’s trial is based on fairness. After a person is convicted of a crime and their behaviour in custody is good, they are generally released when there is 1/3 of their sentence remaining. The term generally used to describe this is “earned remission”. Inmates earn the right to be released early through good behaviour during their sentence.
People are innocent until proven guilty. There are times when people are charged with an offence and kept in custody while they wait for their trial. The concept of 1.5:1 credit for pre-sentence custody is that people should get the same credit for the time they spend in custody before they are found guilty as they get after they are convicted.
A good example is the case where two people are charged with theft and they both ultimately get sentenced to 30 days of custody.
- Person A is able to plead guilty on the first day, is sentenced to 30 days of custody and is released after 20 days because of earned remission.
- Person B isn’t able to plead guilty on the first day, and instead pleads guilty on the 20th day. The judge sentences them to 30 days, but only gives 1:1 credit for the time served before the conviction. Person B must then spend six further days in custody.
If the judge gives Person B 1.5:1 credit for the 20 days of custody already served (20 x 1.5 = 30 days), Person B receives the same punishment as Person A.
People are not always able to plead guilty on their first day in court. Sometimes the bail court judge will not allow the person to plead guilty and be sentenced in bail court and they are forced to wait for another day. Other times a person wants to exercise their right to have a trial, but must wait many months before the court/prosecution has time to conduct the trial. In most cases where a person does not plead guilty on their first day in court, they will be punished to a greater degree if they are not credited at 1.5:1 for their pre-sentence custody.
It appears that the issue will ultimately be decided in favour of granting people 1.5:1 credit for the time they spend in pre-sentence custody, however this law has yet to be settled uniformly across Canada. If a person makes a bail application they may be precluded from receiving 1.5:1 credit for their pre-sentence custody. It is important to get a lawyer to assist you before attempting to apply for bail.
*note: The information on this page is not legal advice.