In the United States, there are a lot of judges who get “creative” in trying to deny pretrial jail credit. Thanks to Judge Wayne Gorman, there is an interesting pretrial jail credit case from Canada:
In R. v. Slack, 2015 ONCA 94, February 11, 2015, the accused was convicted of a series of weapon related offences and sentenced to a period of eight years imprisonment. In imposing sentence, the trial judge declined to grant the accused an enhanced credit for pre-sentence custody.
THE TRIAL JUDGE’S DECISION
The trial judge reached her conclusion “based on the appellant’s institutional conduct.” The trial judge stated:
The difficulty here is that Mr. Slack has three misconducts in his record during his time in custody: March 20th, 2012, March 12th, 2012 and October 31st, 2012. Although the circumstances which could give rise to enhanced credit include ineligibility for remission and parole while in custody, the conduct during his custodial time, in my view has caused me not to grant the enhanced credit. I do not consider enhanced credit necessary to [achieve] a fair sanction.
The accused appealed from the sentence imposed, arguing in part that an enhanced credit should have been provided for the time he spent in pre-sentence custody.
THE ONTARIO COURT OF APPEAL
The Ontario Court of Appeal agreed. It suggested that the Supreme Court of Canada’s decision in R. v. Summers,  1 S.C.R. 575, “lays to rest any suggestion that the loss of eligibility for early release cannot, standing alone, warrant enhanced credit for pre-sentence custody.” The Court of Appeal indicated that “the fact of pre-sentence custody is generally sufficient to give rise to an inference that the offender has lost eligibility for parole or early release, thereby justifying enhanced credit. It then falls to the Crown to challenge this inference, for example, by demonstrating that the offender’s bad conduct while in jail renders it unlikely that he or she will be granted parole or early release.”
The Court of Appeal held that the trial judge erred in denying “enhanced credit for the appellant’s pre-sentence custody based solely on the evidence of the appellant’s institutional misconduct” (at paragraphs 13 and 14):
The appellant’s conduct during pre-sentence detention included three documented incidents of misconduct. On one occasion, the appellant was charged with possession of contraband when the smell of marijuana was detected coming from his cell, which he occupied with another inmate. No marijuana was found on the appellant’s person, and he was not seen using the drug. The remaining two incidents involved a second charge of possession of contraband, and making a gross insult at another person. There was no other evidence before the sentencing judge concerning the nature of or the circumstances surrounding these two incidents.
The sentencing judge denied enhanced credit for the appellant’s pre-sentence custody based solely on the evidence of the appellant’s institutional misconduct. And it is here, with respect, that I conclude the sentencing judge fell into error. In my view, given the nature of the thin record of institutional misconduct by the appellant, it cannot be said that the Crown demonstrated that the appellant’s institutional misconduct would disentitle him to parole or statutory release.
The Court of Appeal concluded that the “evidence of the appellant’s minor misconduct while in pre-sentence custody did not support the inference that his right to statutory release would or could be revoked” (at paragraphs 19 and 20):
In this case, the evidence of the appellant’s institutional misconduct did not reasonably support the inference that he would likely be denied parole or statutory release based on bad conduct. The limited record before the sentencing judge concerning the appellant’s conduct in jail established only a minor instance of misconduct – the possession of marijuana based on the smell of that drug emanating from a cell occupied by the appellant with another offender. Nothing in that incident or in the two other generally unparticularized incidents of misconduct established reasonable grounds to believe that the appellant, during the period of his statutory release, would commit an offence of the type envisaged under ss. 129 and 130 of the CCRA. Nor was the loss of statutory release an available punishment for the appellant’s reported incidents of misconduct.
In short, the evidence of the appellant’s minor misconduct while in pre-sentence custody did not support the inference that his right to statutory release would or could be revoked. As a result, the refusal of enhanced credit for the appellant’s pre-sentence custody on the ground of his institutional misconduct was unjustifiable and the sentencing judge’s denial of enhanced credit solely on this basis cannot stand.