It’s an odd sight in court: the accused is found or pleads guilty and is sentenced, only to have their shackles removed and be set free.
It’s due to pre-trial delays exceeding the actual sentence once it is handed down, but also, it’s the now-standard application of what’s known in the courts as the Summers credit, which changes the count.
Under the credit, each real day spent in pre-trial custody — days spent in jail prior to the sentencing — is counted as one and a half days. For example, 10 days in jail would equal 15 sentencing days. It means that, on occasion, accused persons are sentenced the same day they are released.
The Summers Credit is a system with which Michael Haraschuk, criminal lawyer with Weaver Simmons and regional director for Criminal Lawyer’s Association since 2021, is quite familiar.
Originally from Mississauga and called to the bar in 2005, Harashchuk told Sudbury.com the credit represents an effort to ensure those who are not able to make bail are treated as fairly as those who are, but also to acknowledge the different conditions faced by those in pre-trial or “remand” custody: the inmates that make up 70-80 per cent of those at the Sudbury District Jail.
It stems from the process of sentencing, and ensuring that every person that comes before
Sentencing itself covered under Section 718 of the Criminal Code of Canada, and seeks to: “Denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.”
Within the Canadian justice system there is a focus on rehabilitation, where possible, said Haraschuk. “Very few persons commit offenses that result in life sentences,” he said. “Most people are going to be released if they go to jail, and you really want to have them rehabilitated, so it's an important sentencing principle.”
From there, we head to calculations.
In or out: how much time do you serve?
The statute that determines how long before someone qualifies for conditional release is called the Corrections and Conditional Release Act.
Under this statute, the now-standard application is that each inmate serves two-thirds of the sentence given in custody. That means if you are sentenced to 60 days, you will serve 40 days in custody and 20 days in the community on parole.
But that math only really works if you make bail ahead of sentencing, and wait for court at home, said Harashchuk.
If you are not granted bail, you will be held in custody. And with the current backlogs and delays within the court system, an accused person could serve more time in pre-trial custody than they are eventually sentenced to.
And because there is no even application of bail — being without assets, family, without a surety or even a place to live are all reasons to be denied, said Haraschuk — that means that two people charged with the same crime under the same circumstances could serve different sentences. And that’s unfair under the law, he said.
As well, time served pre-trial also does not count towards parole if a guilty person is sentenced to longer than two years.
But with the Summers credit, fair application of time is allotted, said Haraschuk.
That’s the heart of R. V. Summers, the precedent case and source of the shorthand “Summers Credit.”
In this case, the accused was on remand for 10.5 months. The sentencing judge assigned a credit calculated at a rate of 1.5 to 1, on the basis that pre-trial detention did not count towards parole eligibility for the accused.
Beyond that, said Haraschuk, the harsh conditions of remand jails, and specifically, the Sudbury District Jail, means that time spent there could be worse than if they’re in long-term custody in a high-security prison.
Sudbury District Jail: ‘Dismal’ and vermin-infested
Because of court delays, the Summers Credit also considers the conditions the offender was forced to remain in while waiting for their case; remand facilities, like Sudbury District Jail, holds those without bail and those sentenced to more than two years of incarceration.
More than 70 per cent of the population of the Sudbury jail has yet to be found guilty or even face a judge.
People in custody there are often subject to lockdowns due to staff-shortages, out-of-date facilities and a lack of programming or pre-release planning options in place in long-term prisons.
In court documents detailing a 2024 sentencing for Jerome Atkinson, 27, the Toronto-court based Justice Brock Jones details Atkinson’s time spent in pre-trial custody in Sudbury.
“While at the Sudbury jail, he (Atkinson) was subject to triple-bunking everyday in a small cell meant for two inmates,” reads the court decision. “He was provided with a thin mattress to sleep on the floor next to the toilet for at least 49 days. He had virtually no privacy; it was cramped and cold and occasionally invented with insects or other vermin.”
Those cells are seven-and-a-half feet long by five feet wide and contain two bunk-style beds, along with a combined sink/toilet, states another court decision, one from 2016 that Haraschuk still refers to, he said, as it is still accurate in its description of the jail conditions.
R. v. W.V. was heard by Justice Robbie Gordon over several dates in the latter part of 2016. There is a publication ban on any evidence that would reveal the identity of the victims, or in this case, the perpetrator, who is referred to as Mr. V.
The case is of note in its description of the jail conditions.
Primarily a remand centre, writes Gordon, the Sudbury District Jail holds those who are awaiting trial or serving less than six months. “As such, most have not yet had their trial and enjoy the presumption of innocence,” wrote Gordon.
The jail was first built between 1928 and 1930, with an addition added in 1986, he writes. “There are sufficient beds to accommodate 186 inmates,” he said.
In 2023, the Ministry of the Solicitor General invested $10 million into the jail, funding new corrections officers, security and lighting upgrades, a classroom renovation, a new canopy roof over the outdoor area and a parking lot expansion. But no real changes to the cells were made.
Haraschuk notes while the rodent infestations are awful, the current issue lies with a facility that has not changed with “the diversified population” in Sudbury. “It's not a fit facility for individuals with mental health issues, or for individuals with identity issues,” he said.
Haraschuk had a client who is a transgender woman: with no other choice, the jail required her to stay in a segregated cell.
Segregation is also detailed in Gordon’s decision, “a place where inmates are segregated or kept away from other inmates.”
He states that inmates “are basically confined to their cell for all but one hour per day. When allowed out of their cell, it is alone; they are not allowed to gather in the common area with other prisoners. They have no television or radio.”
With overcrowding, it is likely segregation is relegated to what Gordon calls “The Hole.”
“The Hole is a particularly dismal place.There are four cells in the hole and each is basically a concrete rectangle with a concrete platform and mattress which functions as the bed, and a combined toilet/sink,” he writes. “The door to the cell is basically solid.The light is kept at a constant dim level. It is what I envision when I hear the term ‘solitary confinement.’ It has no common area. It has no radio or television.”
If a facility is beyond terrible, a defence attorney can also apply for the Duncan Credit (based on the 2016 case R. v. Duncan) of two-days-for-every one real day, but it is rarely used.
Serving a year for a 90-day sentence
Harschuk said the Crown always has the opportunity to argue against the Summers Credit, that it shouldn’t be applied in a citation, but Harashuck said he hasn’t seen that “in years.”
For many, it seems that bail, the ability to be out of jail while you wait to be sentenced, is seen as a slap on the wrist, the chance to see more crime committed by those persons while they wait for sentencing. Particularly, the political winds seem to be moving in this direction, and in particular, the renewed focus on keeping people behind bars while they wait for the process.
But Haraschuk said the funds and focus are better spent speeding up the trial process.
He said if there were more courthouses, more judges, a likelihood of 90 days before you face a judge “rather than between 12-18 months for Ontario Court or 24-30 months for Superior Court,” said Haraschuk.
“If you're scheduling a trial in Superior Court here in Sudbury, you're right up against that 30 month mark and it's not the fault of the defendant,” he said, pointing to delays that stem from the pandemic, but also, a lack of judicial appointments and a lack of court space. “And so, it's necessary to be given this credit, it is only fair, because otherwise, people who get bail don’t serve as long.”
And to him, those who do not get bail tend to be “the more marginalized persons in our community.”
It’s those who don’t have assets, family or an address that tend to be held in remand when otherwise they would qualify for bail.
“They're not granted bail. They have to wait in custody. There's a delay in the system for their trial to be reached,” said Haraschuk. “They're waiting in a remand facility, which is often short-staffed, which means that they do not leave their cell for the day and they lose out on any community programming they could engage with.”
Haraschuk agrees that there will always be a need for a “segment of the population, yes, that have to remain in custody while they're waiting for trial like that,” but for him, the rhetoric of “tough on crime, tough on bail, tougher judges,” is not the solution to the overcrowded system that he believes isn’t treating the real issues. “A sound bite is not a long term solution,” he said.
Rather than building the jails, he said, “spend the money on social-support systems in the community, in order to work at the root problems as to why people are committing crimes.
He believes that “sometimes when we hear the politicians speak, they're speaking about a Toronto problem with gangs, guns, vehicle theft,” he said. “And while I understand it's now, it's now seeping into the north, it's not at the same level as it is in Toronto. So they want to look at a Toronto problem and paint the entire province with the same brush. I don't agree with that, especially when there are upstream opportunities to add preventative aspects to this.
“More people in jail is not going to work. More people on bail, if there's programming and things that they can access while they're out on bail, is a far better solution.”
Jenny Lamothe covers vulnerable and marginalized populations, as well as housing issues and the justice system for Sudbury.com.