R v Plante, 2018 ONCA 251

The Issue

What factors govern the granting of credit for pre-sentence custody, especially in relation to an offender sentenced to a reformatory period of incarceration.

The Answer

The Court of Appeal noted the difference between provincial and federal jail time:

A prisoner who is sentenced to 18 months jail, but does not obtain parole is released after 12 months because of earned remission, unless institutional misconduct results in forfeiture of remission. Twelve months of presentence custody is equivalent to an 18 month sentence in these circumstances. According to Summers, this differential alone justifies enhanced credit at a ratio of 1.5:1. [@7]

The court clarified the approach and noted the error of the sentencing judge:

The sentencing judge was wrong to equate re-committal for violation of the terms of statutory release under the federal system with misconduct while serving a sentence within a provincial institution which would lead to a loss of earned remission under the provincial system. There was no evidence here of institutional misconduct which would likely lead to a prolongation of the appellant’s incarceration past the two thirds mark of his sentence. [@10]

The Fine Print

For context, the sentencing judge refused the 1.5:1 credit for the following reasons:

I have considered the defence request that Mr. Plante receive enhanced credit for his presentence in custody. On five previous occasions Mr. Plante was a statutory release violator. I conclude that he is not a candidate for parole or early release. I have not been provided with information about overcrowding at the detention centre or other conditions that might have made Mr. Plante’s presentence detention more onerous. The defence has not met its onus to demonstrate that enhanced credit should be awarded for the presentence in custody. [@2 ONCA]

See to similar effect R v Pitamber, 2018 ONCA 518 where the Court of Appeal offered the following:

The sentencing judge refused to give the appellant credit for pre-sentence custody on any more than a one-for-one basis as the appellant had breached the no contact provisions of previous orders on many occasions. The sentencing judge did not have the benefit of R. v. Plante, 2018 ONCA 251 (CanLII), as well as the fresh evidence indicating that the accused has behaved well during his time in custody.

There is no reason to believe that the accused will not be entitled to release after serving two thirds of his sentence in a provincial institution. Parity of treatment in these circumstances between persons released on bail and those detained in custody mandates a further credit on a 1.5:1 basis of 43 days. The sentence was otherwise fit. [@1-2]