Credit for Harsh Pre-Sentence Jail Time


In the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit  referred to in section 719(3.1) of the Criminal Code.

In considering whether any enhanced credit should be given, the court will consider both

·         the conditions of the presentence incarceration, and

·         the adverse effect of those conditions on the accused.


R. v. Duncan, 2016 ONCA 754 (CanLII). 

A relevant factor will also be whether the difficult conditions (such as prolonged lockdowns) for which the offender seeks sentence mitigation are related to the offender’s own misconduct: R. v. J.B. [2016] O.J. No. 855 at para 22.

The harshness of prolonged lockdowns, or protective custody, or a series of assaults upon the inmate, for instance, are the types of things that may merit enhanced credit. However, there is no closed list.

As noted in R. v. Doyle, 2015 ONCJ 492 (CanLII), at para 37, "harshness” is not a fixed or immutable standard. Rather, it is case-specific variable measured not only by an objective appraisal of remand conditions but, to a large degree, by the relative vulnerability or resilience of the offender at issue. The “impact” of qualitative hardships varies depending on the particular offender's needs, character and disposition”. This, inevitably, involves a fact-dependent and discretionary exercise.



Credit Awarded

Where enhanced credit is given it is usually provided at a rate of 1.6:1 to 1.7:1--that is, 1.6 days awarded for every day of custody served, etc.  This rate includes the 1.5:1 rate that may be awarded under section 719 of the Criminal Code.

1.6:1               Offender put in Protective Custody for safety reasons and for no fault of her own. While the offender was able to take positive rehabilitative steps despite the repeated lockdowns and cancellations of programming, the court recognized that spending time in PC was particularly harsh: R. v. Selinevich, 2017 ONCJ  42. 

1.615:1          R. v. Bedward, 2016 ONSC 939 (CanLII).

See also R. v. Doyle, 2015 ONCJ 492 (CanLII), per Greene J.; R. v. Edwards-Lafleur, 2016 ONCJ 97 (CanLII); R. v. Shah, 2016 ONSC 2651 (CanLII); and R. v. Williams, 2016 ONCJ 96 (CanLII).


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