Conditional sentences and dead time

Today's Court of Appeal decision in R. v. Nusrat, 2009 ONCA 31 makes it clear that imposition of a conditional sentence requires the Court first to consider, as a condition precedent, the appropriate range of sentence.

Pretrial custody credit must be included in the consideration.

The Court holds:

[53]          This violates both Proulx and Fice, which make it clear that that a judge must first determine the appropriate range of sentence before considering if the offender qualifies for a conditional sentence.  As the Supreme Court of Canada stated in Fice, at paras. 21-22:

[T]he time credited to an offender for time served before sentence ought to be considered part of his or her total punishment rather than a mitigating factor that can affect the range of sentence and therefore the availability of a conditional sentence. …

Since the time spent in pre-sentence custody is part of the total punishment imposed, it is clear that it is not a mitigating factor that can affect the range of sentence and therefore the availability of a conditional sentence, as argued by the respondent.   

[54]          Simply put, it is an error to refuse credit for pre-trial or pre-sentence custody so that it can be used as a mitigating factor to reduce the appropriate range of a sentence.
James Morton
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