Changed ‘Time Served’ Rule Now in Force

The annoyingly named Truth in Sentencing Act (S.C. 2009, c.29) came into force on Monday, February 22.

Given third reading in October of last year, the statute amends Criminal Code provisions concerning judicial freedom to take into consideration, when sentencing, time already spent in custody. (As always, the Library of Parliament summary and backgrounder is thorough.) The “common but not automatic” practice of the courts was to count pre-sentencing incarceration as double time. Now, the new rules require that courts may only count on a one-for-one basis, unless “the circumstances justify” granting the prisoner 1 1/2 days for every day in custody. That more generous provision is not to apply, however, if the reason the accused was held in custody was because of a prior conviction or a violation of their bail terms.

The precise language of the central provision is as follows:

3. Subsection 719(3) of the [Criminal Code] is replaced by the following:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.

Apart from concern about the legislative hampering of judicial freedom, concerns have been raised about costs that this provision may impose upon correctional systems from the increased numbers of prisoners that are likely to result and the impact that this might have on time spent in pre-trial custody.


  1. Can we expect that those who purport to be concerned about “legislative hampering of judicial freedom” will start being concerned about the caps on sentences imposed in the Criminal Code, or the statutory release provisions (which arbitrarily release convicted criminals prior to the expiration of their judicially-imposed sentence) or the Charter prohibition on cruel and unusual punishment? Or does the principle of “judicial freedom” only work to permit more lenient punishment of convicted criminals?

  2. I take your goose/gander point about consistency, Bob. I wonder, though, whether “those who purport &cet.” might be less concerned than you imply if the restraints on judicial freedom you mention were to disappear. I say this because I suspect (but do not know) that the judiciary is less in favour of incarceration as a rule than governments of the current conservative bent. That is, the real argument is about the value of imprisonment, and we’d be better able to find the constency you argue by choosing teams on that basis. As for the Charter provision, at the moment, at least, I imagine cruel and unusual punishments would be more likely to come from this Parliament than from the bench — but, I wouldn’t give it up in any case.