Understanding Pre-Sentence Custody in Ontario: Summers and Duncan Credit Explained

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Eva Janta, a renowned practitioner in the field of criminal law from KPA Lawyers, offers an in-depth discussion on the intricate workings of pretrial custody, also known as pre-sentence custody, in Ontario.

Pre-sentence custody, as Janta explains, acknowledges the adverse impacts of detainment on an individual’s mental and physical health and their ability to prepare a robust defense. This credit is calculated based on the duration the individual was held in custody before their trial. If the person is found guilty, this pretrial custody credit is intended to be subtracted from their final sentence.

One common term that frequently appears in discussions around pre-sentence custody is ‘Summers’ Credit.’ This term originates from the 2014 R v Summers case from the Supreme Court of Canada. The calculation of Summers’ Credit operates on a 1.5 to 1 ratio. In essence, this means that for every day an individual spends in custody before their trial or plea, they receive one and a half days of pre-sentence custody credit. For instance, if a person is held in custody for 100 days before their trial, they would be eligible for 150 days of pretrial sentence custody credit.

However, Janta notes that there are circumstances where this credit might not be granted or may be limited. This could occur if the individual was already serving another sentence simultaneously, or if they were released on bail and then later rearrested.

In addition to Summers’ credit, there’s another type of credit that comes into play under certain conditions, known as ‘Duncan Credit.’ This concept, named after the 2016 Ontario Court of Appeal case, R v Duncan, is given for particularly difficult pre-sentence incarceration conditions. Unlike Summers’ credit, Duncan Credit does not follow a strict mathematical formula and does not increase the amount of pre-sentence custody. Instead, it serves as a mitigating factor that a judge considers when determining an appropriate sentence.

For instance, a judge might deem 12 months as the suitable sentence for a certain crime under typical conditions. However, if the offender experienced particularly harsh custody conditions, the judge might consider eight months as the appropriate sentence, taking into account the Duncan Credit.

To fully appreciate the difference between Summers and Duncan credit, Janta clarifies that Summers Credit is a deduction from the appropriate sentence, always capped at 1.5 to 1, and is used to give credit for typical conditions in pre-sentence custody. Conversely, Duncan Credit is not a deduction from an appropriate sentence. Instead, it’s a mitigating factor considered when deciding the appropriate sentence, applicable when pre-sentence custody occurs under particularly harsh conditions such as excessive lockdowns, overcrowding, or time in solitary confinement.

This explanation by Eva Janta provides invaluable insights into the complexity of pre-sentence custody in Ontario, helping us better understand the nuances of the criminal justice system.


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