Custody (Pre-trial)
Pre-trial custody — sometimes called remand or detention — is the period during which an accused person is held in custody while the criminal case is pending. Pre-trial custody arises where bail has been denied at a bail hearing, where bail has not yet been sought, or where the accused has been detained for breaching an earlier release order. Most pre-trial detention happens in provincial detention centres operated by the Ontario Ministry of the Solicitor General.
Mass Tsang's bail hearing lawyers work hard to avoid pre-trial detention in the first place and to challenge detention orders where possible. For more, see our explainer on seeking pre-trial release.
Conditions of pre-trial custody
Pre-trial detention centres are not designed for long-term incarceration and conditions are often austere: limited program access, restricted exercise and visiting opportunities, frequent lockdowns, and crowding. Many practitioners and judges have observed that pre-trial custody is harsher in many respects than serving a sentence in a federal penitentiary. The harshness of conditions is a factor in sentencing credit calculations.
Credit for pre-trial custody — section 719
Where the accused is ultimately convicted and sentenced to imprisonment, the court must credit time spent in pre-trial custody. Section 719(3) of the Criminal Code provides that one day of pre-sentence custody can be credited as one day. Section 719(3.1) allows for credit at 1.5 days per day spent in pre-trial custody — "enhanced credit" — where the circumstances justify it. The Supreme Court in R v Summers, 2014 confirmed that lost opportunity for parole and remission is a sufficient basis for enhanced credit in most cases.
Strategic implications
Pre-trial custody can affect the trajectory of a case. Detained accused face pressure that bailed accused do not — pressure to resolve, pressure from family and employment dislocation, and difficulty meaningfully participating in defence preparation. The Supreme Court has long recognized the special importance of bail for that reason. Where pre-trial custody is unavoidable, the duration becomes a major factor in resolution discussions and sentencing.
Bail review and reconsideration
Pre-trial custody is not necessarily final. Bail review in Superior Court, fresh applications on material change in circumstances, and ongoing negotiation with the Crown can lead to release at later stages. Where review is contemplated, careful preparation of a stronger release plan is essential.
Related glossary terms
