Legal Ease, March 9

If you are charged with a crime, and held in jail until your trial, the time you serve waiting trial is not ignored, if you are convicted.

That time is credited to you usually on the basis that for every day you serve awaiting trial is credited against your sentence at the rate or one and a half days. 


An example may help.

Suppose you are arrested for assault and, perhaps because you have a record, you do not get released on bail. You wait for four months before you get to trial.

At trial you are convicted and the judge says you are to get a jail sentence of nine months. The time you spent waiting for trial is four months but because the time is given an extra time and half, you get credit for having served six months and so your actual sentence will be three months.

In total you will have served seven months (ignoring any early release) even though the formal sentence is nine months.

The reason extra credit is given for time served awaiting trial is because pre-trial custody is especially hard time, often in overcrowded conditions with little or no access to treatment or rehabilitative programs.

In fairness some of the institutions—for example the Rankin Inlet Healing Facility or Makigiarvik in Iqaluit—have very good programs for all their inmates but time spent at the Baffin Correctional Centre in Iqaluit can be pretty harsh.

Pretrial custody is also “dead time” that doesn’t count toward any eventual parole or early release eligibility.

This last point, the fact “dead time” doesn’t count toward parole or early release eligibility, convinced the Supreme Court that most of the time extra credit should be given.

Supreme Court of Canada Justice Andromache Karakatsanis wrote:

“The loss of early release will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely.”

Where early release is implausible, the time and a half multiple would not be used.

Some violent or remorseless offenders would never realistically be eligible for early parole or statutory release and the loss of such early release is no loss at all.

Even if other factors make the pretrial custody particularly harsh—perhaps being held far away from home or in overcrowded conditions—that may not justify an enhanced credit.

That said, even in such extreme cases the accused still gets credit for the time served before trial but only on a one-to-one basis.

Of course, if you are acquitted, the time in jail spent waiting for trial is just time lost.

And remember, until a conviction is entered people awaiting their trials are presumed innocent; yet they often suffer worse conditions than those individuals properly convicted and sentenced.

Someone who is serving a sentence is entitled to treatment and rehabilitation programs sometimes not available to people “on remand”—that is, awaiting trial.

James Morton is a lawyer practicing in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.