Patrick J. Ducharme
Presented on behalf of the L.S.U.C.’s C.L.E. Program Series
The Six Minute Criminal Lawyer on April 2, 2011, Toronto, Ontario.
Getting Tough on Crime: The Amendments to the Criminal Code of Canada
Pre-Sentence Custody The Truth in Sentencing Act has amended the Criminal Code to limit the credit a judge may give to an offender upon sentencing for any time spent in pre-sentence custody. Section 719 of the Criminal Code provides that in determining a sentence to be imposed a Court may take into
account time spent in pre-sentence custody but the Court shall limit the credit for that time to a maximum of one day for each day spent in custody. However, if and only if, the circumstances justify it, a judge may allow for a maximum of one and one-half days for each day spent in pre-sentence custody. A court is required to give reasons for this credit. This is never the case where the offender was detained because of a criminal record or breach of bail conditions.
In R. v. Johnson, the Honourable Melvyn Green of the Ontario Court of Justice recently held that subsections 719 (3) and (3.1) of the Criminal Code, as amended by the Truth in Sentencing Act, are not unconstitutional and do not offend the Charter. However, he was satisfied that subsection 719 (3.1), which stipulates that, “if circumstances justify,” the ratio of 1:1 can be evaluated instead as 1.5:1, empowers the sentencing judge to grant enhanced custody credit where warranted, and where reasons are enunciated.
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