R v Canto (ABCA): Leave to seek retroactive application of Summers decision on pre-trial custody credit denied
In 2009, s. 719(3) of the Criminal Code was amended to state that credit for time spent in pre-trial custody would be capped at a presumptive maximum of 1 day, per day of pre-trial custody. However, under s. 719(3.1), a sentencing court could grant 1.5 days for every day in custody “if the circumstances justify it”. What such circumstances would be was not discussed. Prior to April 2014, a number of courts in Canada had held that the circumstances must be "exceptional" and the loss of eligibility for parole and statutory release was not--in itself--an exceptional circumstance. That changed in April 2014 when the Supreme Court of Canada ruled in R v Summers, 2014 SCC 26 (CanLII) that the loss of eligibility for parole and statutory release was a circumstance that could merit the granting of enhanced credit. After the Summers decision, courts in Alberta began granting 1.5 to 1 credit in most sentencing decisions. Mr. Canto was sentenced in 2012. He did not appeal his sentence at the time and his time to appeal that sentence expired. [...]