Wednesday, April 05, 2006

Pre-Sentence Credit Cannot Be Taken For Granted

Criminal lawyers should be wary...don't take it for granted that your client will get 2 for 1 credit for pre-sentence custody.

Not all judges are willing to play ball. A provincial court justice recently nailed an accused with straight one-to-one credit in sentencing. He went further, suggesting that some criminals try to 'stretch out' their Remand time in order to shave extra months off their final sentences.

He might have gotten that idea from an Edmonton Sun article which ran last fall, quoting a representative of Remand guards saying canny inmates avoid being transferred to less-crowded units at the jail, to boost sentence credits.

It's a notion that sends criminal defence lawyers into fits. For one thing, it suggests some judges may be changing their sentencing practices because they suspect Remand inmates are exploiting lousy lockup conditions to pare months off their prison time.

Generally speaking, the vast majority of judges continue to apply 2 for 1 credit as a matter of course, but this story represents the latest in a string of ever-increasing incidents where judges are being very suspicious of offenders who appear to be trying to "bank" good time prior to being convicted.

When it comes to guilty pleas, defence lawyers ought to start including a caution to clients about the "convention" of 2 for 1 credit in the standard procedure for dealing with s. 606(1.1). Obviously, many offenders will want to vacate their guilty pleas or appeal their sentences in the event that they are not given 2 for 1 credit, and they will be quick to point out to the courts that their lawyer didn't advise them that it was possible they might only get 1 for 1 credit.


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