Does Time Spent in Pre-Sentence Custody or Being Subject to Strict Bail Conditions Count Towards a Final Sentence?

PUBLISHED ON June 23, 2022

The Ontario Court of Appeal recently addressed how an accused’s bail conditions can impact their sentence in the case of R. v. Schlaepfer.  The accused was detained in custody on March 13, 2016, and released on bail on May 17, 2016. The accused pleaded guilty to a charge of the production of marijuana and was sentenced to 14 months in custody and was given 4.2 months of credit for both pre-sentence custody and hardships related to health concerns while in custody.  

Pre-Sentence Custody

It can be confusing to understand how pre-sentence custody factors into a sentence. It is not the case that the judge simply subtracts one day from the sentence for every day that was spent in custody prior to being sentenced. The sentencing judge in Schlaepfer allotted 3.2 months of pre-sentence custody for the two months and five days spent in custody prior to being released on bail. Where did that number come from?  

Typically, a sentencing judge will subtract 1.5 days from the sentence for every one day spent in pre-sentence custody. This 1.5:1 formula is often referred to as “Summers credit.” The Summers credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pre-sentence incarceration. So in Schlaepfer’s case, although he had only spent 66 days in pre-sentence custody, using the 1.5:1 formula, the sentencing judge deducted 3.2 months from his sentence. This 1.5:1 formula is to be expected.

There are, however, other potential deductions. In Schlaepfer, the sentencing judge deducted a further month from the sentence based on the fact that Schlaepfer had experienced onerous incarceration conditions while in pre-sentence custody.  Specifically, he had difficulty receiving necessary medical and dental treatment. This type of deduction is referred to as “Duncan credit.” Duncan’s credit is given on account of particularly difficult and punitive pre-sentence custody conditions. Strictly speaking, it is not a deduction from the otherwise appropriate sentence; it is simply a relevant and important factor to be taken into account in determining the appropriate overall sentence.  Other examples of Duncan’s credit include COVID-19 hardships and racism against inmates.  

Bail Conditions

In Schlaepfer, the sentencing judge did allow any reduction in sentence due to the fact that Schlaepfer had spent many months out of custody, subject to restrictive bail conditions. This was an error. Credit for being subject to restrictive bail conditions is referred to as “Downes credit.” The Court of Appeal held that “Downes credit” should have been granted and reduced Schlaepfer’s sentence further, noting that the focus of the Downes credit inquiry is the impact or effect of the conditions on the accused and that “Downes credit does noPre-Sentence Custodyt depend upon whether the accused sought to review onerous conditions that were imposed by a court at the request of the Crown.” The issue is whether the bail conditions were “punitive enough to be akin to punishment.” If they were, mitigation is warranted.

The foregoing is simply for informational purposes only. This is not legal advice and should not be taken as such. If you require legal advice in Toronto, please contact Brian Ross to schedule a consultation.


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Brian Ross is a founding partner at Canada’s largest criminal Law firm, Rusonik, O’Connor, Robbins, Ross & Angelini, LLP. Prior to founding this firm, Brian was a partner at Pinkofskys, a leading law firm famous for its vigorous defence of its clients.

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