Pre-Trial Custody Dead Time in Canada: 1.5:1 Credit Calculation Explained (2026)

If you have been held in custody before your trial or sentencing, that time gets counted toward your eventual sentence under what Canadian criminal law calls pre-trial custody credit, or dead time. The Criminal Code sets out how the calculation works, the Supreme Court of Canada has refined it in several leading cases, and the actual credit applied in a BC court depends on how defence and Crown argue it at sentencing. This guide walks through the rules as they actually apply.

What is Pre-Trial Custody Dead Time?

Pre-trial custody is the time an accused person spends in a provincial remand facility, RCMP cells, or another custodial setting between being denied bail and being sentenced. Many criminal files in BC involve some period of pre-trial custody. The accused was held overnight after arrest, was denied bail at the show-cause hearing, or was held on a breach of release conditions.

Dead time is the colloquial term for that period because, from the accused’s perspective, it is time served toward nothing until sentence is imposed. The Criminal Code addresses this through Section 719(3), which gives the sentencing judge discretion to credit pre-trial custody toward the final sentence. Without that section, an accused could serve months in remand and then receive a sentence that runs concurrent to nothing, effectively double-counting the loss of liberty.

The credit is not automatic. It must be raised at sentencing, the time has to be calculated, and Crown can dispute the amount or the rate. This is one of the places where defence work at the sentencing stage materially changes the outcome.

Section 719(3): The 1.5:1 Credit Formula Explained

Section 719(3) of the Criminal Code is the governing provision. The base rate of credit is one day of credit for every one day spent in pre-trial custody. The court can, in its discretion, increase that rate up to one and a half days of credit for every one day served. The 1.5:1 maximum is set in Section 719(3.1) of the Code.

The reason 1.5:1 became the standard rate in BC and across Canada is the loss of statutory remission. A sentenced inmate accrues earned remission and parole eligibility at certain milestones; a person on pre-trial remand does not. By giving 1.5 days of credit for every actual day served, the court compensates the accused for the worse conditions and the loss of remission benefits.

To get the enhanced 1.5:1 rate rather than the bare 1:1 rate, the sentencing judge must be persuaded the enhanced rate is warranted. The Supreme Court of Canada confirmed in R v Summers, 2014 SCC 26 and R v Carvery, 2014 SCC 27 that the loss of remission and parole eligibility alone is sufficient justification for the enhanced rate. After Summers, 1.5:1 became the default rate in BC sentencing files where there is no specific reason to deny it.

A simple example. An accused spends 60 days in pre-trial custody and is then sentenced. At 1.5:1, those 60 days produce 90 days of credit toward the final sentence. If the sentencing range called for a 12-month custodial term, the actual additional time to serve drops from 12 months to roughly 9 months.

When 2:1 Credit Applies: The Exception

The 1.5:1 cap in Section 719(3.1) is not absolute. Courts have, in narrow circumstances, applied a higher rate (effectively 2:1) where the conditions of pre-trial custody were exceptionally harsh, where rights were violated, or where systemic delay caused additional prejudice.

The 2:1 rate is the exception, not the rule. The Supreme Court in Summers signalled that the 1.5:1 cap is intended to be the operating standard. Departures upward require evidence of something beyond the normal conditions of remand. Examples that have produced enhanced credit in BC courts include:

• Prolonged lockdowns at provincial correctional centres limiting access to programs and family visits
• Charter violations during the period of pre-trial detention
• Conditions that aggravated medical or mental health issues for the accused
• Excessive delay attributable to the Crown that materially extended the pre-trial period

Defence has to make the case for the enhanced credit. Crown will typically resist anything above 1.5:1 absent compelling evidence. The decision rests with the sentencing judge.

How BC Courts Calculate Dead Time at Sentencing

The mechanics of how pre-trial custody credit gets applied at a BC sentencing hearing follow a predictable order.

Confirm the dates. Defence confirms the date the accused was taken into custody and the date sentence is imposed. Both dates count as days served. Credit applies for every full day between them.

Calculate the actual time. Total calendar days in pre-trial custody. Time spent in police cells before being remanded to provincial custody is also counted.

Apply the rate. Defence asks for the 1.5:1 rate as the default per Summers. If the conditions justify an enhanced rate, defence presents the evidence (conditions, lockdowns, Charter findings).

Crown response. Crown may agree to 1.5:1 or argue for the bare 1:1 rate in cases where the accused was responsible for the delay (for example, repeated adjournments, breach of bail conditions causing re-arrest).

Judge’s decision. The sentencing judge sets the rate and the calculation forms part of the formal sentence. If the offence carries a mandatory minimum, the credit cannot reduce the sentence below the minimum.

One important nuance: Section 719(3.2) requires the court to give reasons for the credit applied and to record the calculation as part of the sentence. This is so the corrections authority and the appeals court can verify the math. Defence counsel should ensure the calculation is correct on the record at sentencing because correcting it on appeal is harder.

When Pre-Trial Custody Credit Does Not Apply

There are a handful of situations where dead time credit is reduced or unavailable.

Mandatory minimum sentences. Where Parliament has set a mandatory minimum sentence (firearms offences, certain drug offences, repeat impaired driving), pre-trial custody credit cannot reduce the sentence below the minimum. The credit may still apply against any time above the minimum.

Breach of bail leading to re-arrest. If the accused was on bail and breached conditions, then was re-arrested and held in pre-trial custody on the breach, courts can decline the enhanced 1.5:1 rate for the period attributable to the breach.

Time served on a different file. If the accused was serving a sentence on a separate file during the pre-trial custody period, that time is not available for credit on the new file.

Conduct in custody. Serious institutional misconduct during pre-trial custody (assaults, repeated disciplinary action) can be a factor against the enhanced rate, though this is rare.

What a Defence Lawyer Argues at Sentencing

Julian Van Der Walle prepares the pre-trial custody calculation for every client facing a sentencing hearing where time has been served on remand. The argument typically covers the actual dates and days, the applicable rate (1.5:1 as the default, more if the evidence supports), the conditions of custody, and any Charter or delay issues that may justify an enhanced rate.

The Crown sentencing position usually anticipates the dead time argument and accounts for it. Where Crown and defence disagree, the sentencing judge decides. The defence work that matters is preparing the record so the right calculation is applied and so the credit survives any appeal.

Contact Julian Van Der Walle Law

If you are facing a sentencing hearing in Vernon, Kelowna, or anywhere across the BC Interior and you have spent time in pre-trial custody, that time can materially reduce your final sentence. Julian represents clients at the Vernon Law Courts, the Kelowna Law Courts, and across the region. The first consultation is free.