Prime Time Crime

(May 3, 2016)

The farce…and fraud of pre-trial custody ‘credit’ 


By Scott Newark



Many Canadians were probably wondering what’s going on in our ‘justice’ system these past few weeks as the issue of ‘pre-trial custody credits’ has once again resurfaced. The original idea was simple enough; decades ago our democratically elected Parliament (as opposed to unelected, unaccountable judges) set some rules for judges at sentencing as to what they could, not must, take into account at sentencing.  

Section 719 of the Criminal Code was quite clear. The sentence commenced when it was imposed and in determining the appropriate sentence the judge, could but not must, take into account any time the offender had spent in pre-trial custody as a result of being denied bail because of being charged with the offence for which they were being sentenced.  

There are three items of importance here:

*The decision to award pre-trial custody credit is not mandatory;

*The pre-trial denial of bail was because of being charged with the offence the court is sentencing on; and

*The sentence itself starts upon the sentence being pronounced by the court.  

Seems pretty simple right?  

For years it was. There is an inherent logic and fairness that persons who were denied bail because of the seriousness of the crime they were charged with should have that fact taken into account when they were convicted and sentenced. At the same time, people who were denied bail not because the offence they were charged with but because of career criminality and or a history of breaching court orders, including bail, did not deserve that special consideration as their continuing criminality was the cause of being denied bail. This fact is also recognized in s. 515 of the Criminal Code which specifies these facts as specific and special grounds for denying bail.

The result was a balanced and sensible system that deliberately chose not to reward career criminals at sentencing which, not surprisingly, resulted in many career criminals admitting their guilt once it was clear they weren’t getting bail and thus were doing what was known as ‘dead time’.  

Unfortunately, this process began to change approximately twenty years ago when some judges in Ontario decided that the conditions in remand custody were not as comfy as those in post sentencing prison. When their observations were not acted upon by the elected Provincial government as they saw fit, they started giving not only ‘credit’ for pre-trial custody at sentencing but extra ‘credit’ at double or triple time basis. The effect was to create a system that actually rewarded repeat offenders at sentencing. Additionally, no one understands how the system ‘works’ better than repeat offenders and their Legal Aid lawyers. The result was a sky rocketing increase in the number of people in remand because they knew they would be getting 3 for 1 credit when they plead guilty and they could also have their lawyers complain about the crowded conditions. 

This practice has resulted in shorter custodial sentences which means less time for rehabilitation programs and reduced offender participation. Another less noticed consequence was that judges that shortened the deserved sentence of these repeat offenders decided to make the public think a longer sentence had actually been imposed. They did this by ignoring the clear wording of s. 719(1) that says the sentence commences after its imposed and announced longer sentences which were then reduced by the pre-trial custody credit they awarded although you have to read the fine print to realize the real truth.

This misleading practice contributed to a ‘say one thing do another’ justice system which understandably reduces public trust and confidence in the justice system itself. Fortunately, journalists have come to realize this judicial sleight of hand sentencing and now increasingly report the truth about what the actual sentence was and the amount of pre-trial credit awarded.  

The former federal government also introduced a number of amendments to ensure greater clarity in the operations of the criminal justice system including changes to s. 719(3) of the Criminal Code to presumptively restrict pre-trial custody credit to a 1 to 1 ratio and to require it if the judge denying bail noted the reason as being because of past criminality which included past bail breaches. Although this change was a step in the right direction, the Bill that made the changes failed to expressly articulate why they were deemed appropriate and a few weeks ago the Supreme Court of Canada used this supposed gap to strike down the 1 for 1 restriction.


The case that did this was R. v. Safarzadeh-Markhali [2016 SCC 14] where the Court used theoretical ‘what if’ scenarios unrelated to the facts of the case before it to strike down the pre-trial credit in the name of the now sanctified judicial discretion. In doing so, the Court neglected to consider or even mention any of the existing Criminal Code provisions that create the already existing discretion to deny bail based on the past criminal record or to deny any pre-trial credit. The Court also somehow forgot to mention that the offender was a non-citizen with a lengthy history of drug and firearms offences who was charged with new drug offences, possessing a fully loaded, high powered handgun despite a lifetime firearms prohibition and while already subject to deportation because of his past criminality. And…he never applied for bail but when it got round to sentencing his new Legal Aid lawyer saw that the original presiding judge had noted remand in custody was due to his past record which triggered the pre-trial credit restriction. These are the facts on which the Supreme Court made their ruling although it had no direct impact on the drug dealing gangster scumbag…he’d already been deported to Iran by the time the ruling was made.  

The assumption of entitlement of career criminals to enhanced pre-trial custody credit is clearly back. In B.C., the notorious pedophile child molester Christopher Neil is awaiting sentencing and the Crown has agreed he should get the credit even though he was returned to Canada in 2012 after being imprisoned in Thailand for molesting children and promptly breached a court order and was found in possession of child porn. Incredibly, he was granted bail on those charges and was again arrested for breaching bail and accessing child porn. Despite this sordid record, the Crown has advised it will be seeking a five year ‘sentence’ but agrees that Neil should get pre-trial credit such that he has to serve less than one year. And this is the Crown Prosecutor’s position?

The most recent example of rewarding career criminals at sentencing occurred earlier this week when Ontario Superior Court Justice Brian Abrams supposedly imposed a 40-month sentence on Clayton George Presley for manslaughter in the beating death of Daryl Weedmark. Presley who has 13 previous assault convictions was originally granted bail but it was revoked after he breached the conditions of release. For some reason he is also being rewarded with the 1.5 pre-trial credit which when you do the corrections math means that he will serve no time in custody but will instead be on probation for a year. Gee…that should work.

The return to the say one thing do another criminal justice system is ominous as it signals the return of anti-democratic judicial activism that will likely impose its will on a number of other measures that target the worst and repeat offenders. Additionally, this comes at a time when the new Liberal government says it will be reviewing the entire criminal justice system and specifically to ‘reconsider’ the targeted measures enacted over the past decade. 

I’ve got a bad feeling about this…  


Scott Newark is a former Alberta Crown Prosecutor and Executive Officer of the Canadian Police Association who has also served as Vice Chair of the Ontario Office for Victims of Crime and as a policy advisor to both the Ontario and Federal Governments.    

Other columns from Scott Newark are available at:



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