Canada’s Truth in Sentencing Act became law in February 2010. It changed the law regarding how much credit can be given for time spent in custody before a person gets sentenced. Judges used to have a fair bit of discretion, and typically gave double (or 2-for-1) credit based on considerations such as the fact that police cells and remand centres were uncomfortable, prone to violence and disease, tended to be overcrowded, and had few if any rehab programs for inmates.
The Criminal Code was amended at the same time. Section 718(3) and (3.1) provide that the maximum a judge can credit is 1.5-for-1 provided “the circumstances justify” giving someone greater than 1-for-1 credit. It is important to note that if the accused was denied bail and the reason bail was denied is noted on the court record – in accordance with s. 515(9.1), or that the person was detained pursuant to s. 524(4) or (8) – then 1-for-1 credit is the maximum dead-time credit allowed. That basically means that if the reason bail was denied was due to the accused’s criminal record or breach of bail conditions then 1:1 credit is the max allowed.
It is also important to note that a prisoner typically only gets one shot at getting bail. Technically, if bail was not denied and the record doesn’t state the reason for detention then a prisoner should be entitled to at least and a judge still has discretion to order enhanced credit. Many people choose to stay in custody and not risk being detained, or delay their bail applications, just for that reason.
As things have evolved, enhanced credit – to a maximum of 1.5-to-1 – is the ‘default’ in spite of the fact it is supposed to be the exception to the rule. Conditions in remand centres tend to be overcrowded and it seems there are fewer programs available than ever. Housing prisoners costs money, and longer sentences means more expense and overcrowding. It’s an age-old dilemma: should governments spend more money putting people in jail or on programs to treat their addictions, educate them, and help them on the path to reintegration and success?
In practical terms, restricting and reducing enhanced credit means that people who get sentenced to jail effectively get longer sentences because they end up spending more time in jail. In effect, the judges order the same sentence, but rather than spending 30 days in the slammer for a 60-day sentence you end up spending at least 45. That is effectively the same as getting a longer jail sentence. (As an aside, parole is calculated differently, so that if you pleaded guilty and were sentenced to serve 60 days right away, and had no dead-time, you’d likely be out after around 40 days).