A custodial sentence involves a period of time in custody following a conviction. This guide explains, in general terms, how custodial sentences are structured in Canada, including the general split between provincial and federal custody, a brief note on parole eligibility, and how credit for time already spent in custody before sentencing is generally calculated. It is general information only and does not replace legal advice about a specific case. For the broader sentencing framework, see our overview of criminal sentencing in Ontario.
What Is a Custodial Sentence?
A custodial sentence is a term of imprisonment imposed as a sentence following a guilty plea or a finding of guilt after trial. It is one of several sentencing options available under Canadian law, alongside options such as probation, fines, and, where available, conditional sentences served in the community. Which of these options applies in a specific case depends on the offence and the individual circumstances, and this page does not predict what sentence might apply to any particular situation.
The Provincial and Federal Split
Canadian law draws a general line at two years for where a custodial sentence is served. A sentence of less than two years is generally served in a provincial or territorial correctional facility, while a sentence of two years or more is generally served in a federal penitentiary, administered by the Correctional Service of Canada. This threshold affects not only where a person is held but also which system is responsible for programming, supervision, and eventual release planning.
This distinction can matter for other parts of a sentence as well. For example, as explained in our page on probation, a probation order can only follow a custodial sentence where that custodial sentence is two years or less, since sentences at or above the federal threshold are followed by federal supervision mechanisms rather than a probation order.
Why "Two Years Less a Day" Comes Up
People sometimes hear a sentence described as "two years less a day" and wonder why that specific phrasing is used. Structuring a sentence this way keeps it just under the two-year threshold, meaning it is served provincially rather than federally, along with whatever practical differences that distinction carries in a specific case, such as the potential availability of a probation order to follow it. Whether this kind of structuring is available or appropriate depends entirely on the offence and the specific sentencing decision being made, and is a matter for the court and counsel to address directly, not something this general page can determine.
A Brief Note on Parole Eligibility
For longer sentences, particularly those served federally, parole eligibility can become relevant. Parole is a process, administered separately from the sentencing court, through which a person serving a sentence may be released into the community under supervision before the full sentence has been served, subject to conditions and eligibility rules. The mechanics of parole eligibility are detailed, vary depending on the sentence and the offence, and are administered by the Parole Board of Canada and the Correctional Service of Canada rather than being determined by this page. Anyone with specific questions about parole eligibility for a particular sentence should speak with a lawyer or consult official Parole Board of Canada resources directly.
Parole eligibility is a distinct legal topic from the sentence itself and involves its own detailed rules. This page only notes that it exists for longer sentences; it does not attempt to explain parole mechanics in depth.
Pre-Sentence Custody
Many people who eventually receive a custodial sentence have already spent time in custody before that sentence was imposed, most commonly because they were detained pending trial rather than released on bail. Our pages on bail hearings and rights at a bail hearing explain how a detention decision is made earlier in a case. When a person detained before trial is later sentenced to custody, the time already spent in custody is generally taken into account.
How Credit for Pre-Sentence Custody Is Calculated
Under section 719(3) of the Criminal Code, a court may give credit for time spent in pre-sentence custody, but that credit is generally capped at a maximum of one day of credit for each day actually spent in custody. This general 1:1 cap reflects amendments made by the Truth in Sentencing Act, which came into force in 2010 and significantly limited a practice, common before that time, of giving enhanced credit, sometimes referred to informally as extra time, for pre-sentence custody.
Section 719(3.1) allows a court to give enhanced credit of up to one and one-half days for each day spent in custody, but only where the circumstances justify it, and this enhanced rate is generally not available where the person was detained primarily because of their own criminal record or because they breached bail conditions. Whether enhanced credit applies in a specific case depends on the reasons for detention and the evidence before the sentencing court, and is a matter a lawyer can assess and argue based on the specific facts.
Because this area of sentencing law has been the subject of legislative change and ongoing judicial interpretation, anyone with a specific question about how much credit might apply to time already spent in custody should confirm the current rule and its application with a lawyer, rather than assuming a specific ratio applies automatically.
Why Custody Credit Matters at Sentencing
Credit for pre-sentence custody is generally deducted from the overall sentence a court would otherwise impose, meaning it can directly affect how much further time, if any, a person spends in custody after sentencing. Because of this, the amount of credit calculated, and whether it is calculated at the standard rate or an enhanced rate, can be a significant point of discussion at a sentencing hearing, particularly in cases involving a lengthy period of pre-trial detention.
Probation After a Custodial Sentence
As noted above, a court can order probation to follow a custodial sentence of two years or less, under section 731(1)(b) of the Criminal Code. This means a person serving a shorter custodial sentence may still be subject to supervision and conditions in the community once the custodial portion of the sentence has ended. Our page on probation explains this in more detail, including the compulsory and optional conditions that can apply.
When a Custodial Sentence May Not Be the Only Option
For some offences and circumstances, a court may have the option of imposing a conditional sentence, which allows what would otherwise be a custodial sentence of less than two years to be served in the community under strict conditions, provided the specific eligibility requirements are met. Our page on conditional sentences explains these requirements in more detail, including recent changes to which offences may be eligible.
Frequently Asked Questions
What is the difference between provincial and federal custody?
A sentence of less than two years is generally served in a provincial correctional facility, while a sentence of two years or more is generally served in a federal penitentiary, administered by the Correctional Service of Canada.
Why do some sentences say "two years less a day"?
This phrasing keeps a sentence just under the two-year federal threshold, so that it is served provincially rather than federally, which can also affect whether probation can follow it.
How much credit do I get for time already spent in custody?
Credit is generally capped at a maximum of one day for each day spent in custody, under section 719(3) of the Criminal Code. Enhanced credit of up to one and one-half days per day may be available in limited circumstances where justified, under section 719(3.1). A lawyer can assess what applies to a specific case.
Can probation follow a custodial sentence?
Yes, where the custodial sentence is two years or less. Probation cannot follow a sentence of two years or more, since those sentences are served federally.
Does this page explain how parole works?
No, only that parole eligibility exists and can be relevant for longer sentences. Parole mechanics are detailed and administered separately by the Parole Board of Canada and the Correctional Service of Canada.
Is a conditional sentence the same as a custodial sentence?
No. A conditional sentence allows certain sentences that would otherwise involve custody to be served in the community under strict conditions, where the specific eligibility requirements are met. See our page on conditional sentences for more detail.