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Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

PRE-SENTENCE CUSTODY CREDIT

In R. v. MacLennan, 2021 PECA 14, September 22, 2021, the accused was convicted of a number of offences. He appealed from sentence, arguing that the sentencing judge had erred in failing to provide him with an appropriate credit for the time he had spent in pre-sentence custody. The sentencing judge had credited him for this time period by rates of 1.1:1 and 1.25:1 rather than at the rate of 1.5:1.  

The Prince Edward Island Court of Appeal described the sentencing judge’s reasons for having done so, in the following manner (at paragraphs 7):

…From the reasons given, we infer she employed the quantitative rationale for granting enhanced credit of 1.5:1, and went on to consider the evidence of relevant circumstances — the many incident reports from the jail in the context of MacLennan’s previous record — and thereby found there was valid reason to reduce the credit period from 1.5:1.  The sentencing judge noted there was an exceptional number of incident reports — some less serious but a few quite serious — demonstrating a pattern of unacceptable disruptive conduct involving disrespect, acting out against authority, and a continuation of past conduct of reacting aggressively to authority and destroying property. 

The appeal from sentence was allowed, in part.  The Court of Appeal increased the credit set at 1.1:1 by the sentencing judge for a portion of the pre-sentence custody to a credit of 1.25:1. 

The Court of Appeal:

The Prince Edward Island Court of Appeal noted that “the loss of early release taken alone, will generally be a sufficient basis to award credit at the rate of 1.5:1; however, if it appears to a sentencing judge that an offender will be denied early release, there is no reason to assign enhanced credit for the meaningless lost opportunity. The onus is on the offender to demonstrate that he should be awarded enhanced credit based on his pre-sentence detention. The Crown may challenge the inference that the offender has lost eligibility for early release justifying enhanced credit.  All of this can be accomplished in a simplified process” (at paragraph 16).

The Court of Appeal held that the “sentencing judge’s choice of enhanced credit at the rate of 1.25:1 was representative of her view of his prospects for early release.  She was entitled to make the finding of 1.25:1 enhanced credit.  It is her evidence-based projection of future events based on her assessment of past experience.  In these circumstances, an appellate court would not be permitted to substitute a different assessment and would defer to the discretion exercised by the sentencing judge” (at paragraph 9).

The 1.1:1 Credit:

In relation to the credit of 1.1:1, the Court of Appeal indicated that the sentencing judge’s reasons for a 1.1:1 credit “state a result, but they do not explain the sentencing judge’s rationale for enhanced credit at the rates of 1.1 and 1.25” (at paragraph 16).  The Court of Appeal concluded that it would “respect the sentencing judge’s decision to grant credit at the rate of 1.25:1 during remand, but we will adjust upward the credit given for the period in lock-down from 1.1:1 to 1.25:1 as well” (at paragraph 17). 

Conclusion:

The Court of Appeal concluded as follows (at paragraph 20):

We are satisfied the sentencing judge proceeded to assess credit for pre-sentence detention in accordance with the applicable legal principles, and we discern that her decision to grant credit at the rate of 1:25:1 was evidence-based and well-considered.  However, regarding the decision to reduce credit for time in jail lock-down to 1.1:1, no reason is given and no rationale is apparent.  Further reduction for COVID-isolation is not justified.  Therefore, we adjust the credit for the total lock-down period of 49 days upward to the same ratio of 1.25:1.  As a result, we grant leave and allow the appeal to the limited extent of adjusting the credit for the 49-day period in lock-down from 53.9 days to 61.25 days, thereby adding 7.35 days to the credit for pre-sentence detention. Accordingly, we vary the credit for pre-sentence detention by adding 7.35 days credit.