Rarotonga, 2010

Simon's Megalomaniacal Legal Resources

(Ontario/Canada)

EVIDENCE | ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)
SMALL CLAIMS / CIVIL LITIGATION / CIVIL APPEALS / JUDICIAL REVIEW / Something Big / Practice Directives / Civil Portals

Home / About / Democracy, Law and Duty / Testimonials / Conditions of Use

Civil and Administrative
Litigation Opinions
for Self-Reppers

Simon's Favourite Charity -
Little Friends Lefkada (Greece)
Cat and Dog Rescue


TOPICS


Criminal - Sentencing - Credits (2)

. R. v. J.W. [exception for sentencing credit for 'wrongful conduct']

In R. v. J.W. (SCC, 2025) the Supreme Court of Canada partially allowed a criminal sentencing appeal, here from a dismissal of an appeal at the Ontario Court of Appeal (save for a calculation error), and that from a sentence of "9 years’ imprisonment, less an enhanced credit of 1,792 days" in the Superior Court.

In this case, the court consider the exception to the granting of sentencing credit for a defendant's 'wrongful conduct' causing delay:
(2) Whether Delay Caused by the Offender Constitutes “Wrongful Conduct”

[87] In Summers, Karakatsanis J. explained that, in certain situations, enhanced credit will “often be inappropriate” (para. 48). Notably, “when long periods of pre-sentence detention are attributable to the wrongful conduct of the offender” (para. 48) or “when detention was a result of the offender’s bad conduct” (para. 71), the offender will likely not be granted enhanced credit.

[88] This appeal raises the following question: When an accused causes delay in their criminal proceeding, in what circumstances does this amount to “wrongful conduct”? The appellant submits that wrongful conduct should be defined narrowly (A.F., at para. 54), and that it should not include procedural delays caused by the offender (para. 53). The Crown submits that sentencing judges “should exercise their discretion in a manner that discourages delay and enhances public confidence” (R.F., at para. 80), and that delay attributable to an offender’s conduct is a proper basis to deny enhanced credit (para. 84).

[89] Lower courts have considered what constitutes “wrongful conduct”, though often in obiter. For example, in R. v. Stonefish, 2012 MBCA 116, 288 Man. R. (2d) 103, the court suggested that an offender who is otherwise eligible for enhanced credit may be disentitled to it if they “intentionally delayed proceedings by continuously discharging counsel” or “created delay by not cooperating with probation officers during the preparation of the pre-sentence reports” (para. 82). In another case, the court opined that “where an offender attempts to ‘game the system’ by causing delays in order to accrue additional enhanced pre-sentence credit, the denial of enhanced credit in addition to the sentence imposed for the breach may be justified” (R. v. Hussain, 2018 ONCA 147, 140 O.R. (3d) 593, at para. 22).

[90] Some cases have considered conduct other than delay to be “wrongful conduct” justifying the denial of enhanced credit. For example, some courts have considered whether factors considered in sentencing, such as aggravating factors, are relevant to the determination of enhanced credit (see, e.g., R. v. McBeath, 2014 BCCA 305, 341 C.C.C. (3d) 531; R. v. Boutilier, 2018 NSCA 65, 30 M.V.R. (7th) 31). Other cases query whether committing an offence while on bail or probation disqualifies an offender from obtaining enhanced credit (see, e.g., R. v. Morris, 2013 ONCA 223, 305 O.A.C. 47; R. v. Campbell, 2017 ONSC 26, at para. 62; R. v. Bonneteau, 2016 MBCA 72, 330 Man. R. (2d) 139, at para. 22; see also Ruby, at §13.98). I am of the view that consideration of such circumstances is better left for another day, in cases where the relevant facts arise.

[91] That said, in deciding what constitutes wrongful conduct as contemplated in Summers, we should bear in mind the purpose of s. 719(3.1). Following the enactment of the TISA, the newly imposed cap on enhanced credit aimed to “remove any incentive for an accused to drag out time in remand custody, and to provide transparency so that the public would know what the fit sentence was, how much credit had been given, and why” (Summers, at para. 4).

[92] Moreover, what constitutes wrongful conduct needs to be consistent with the purpose, objectives and principles of sentencing, as s. 719(3) and s. 719(3.1) are part of the overall sentencing scheme (Summers, at para. 59). Giving “wrongful conduct” too broad a scope risks undermining the principle of proportionality. Individuals who are denied enhanced credit on the basis of wrongful conduct will be subject to an extended period of incarceration for a reason unrelated to “the gravity of the offence and the degree of responsibility” (s. 718.1). Too broad a scope also risks undermining the principle of parity, as an offender’s wrongful conduct would lead to disparity in sentences imposed on “similar offenders for similar offences committed in similar circumstances” (s. 718.2(b); see Summers, at para. 61).

[93] Thus, in circumstances where the offender has acted so as to delay proceedings, this in and of itself is not sufficient to constitute wrongful conduct. For example, where pre-sentence delay was caused by an offender’s indecision on whether to plead guilty, this cannot be said to be wrongful (see Carvery, at paras. 19-20).

[94] However, where such acts are done with an intention to frustrate the proper operation of the system of criminal justice, they would constitute wrongful conduct. Attempts to “‘game’ the system” by stalling proceedings should not be condoned (Carvery, at para. 20). While Moldaver J.’s observations in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, relate to the impact of delays on s. 11(b) of the Canadian Charter of Rights and Freedoms, I find them apt in this context as well. Timely trials have a bearing not only on the accused, but also on victims and witnesses (paras. 22-23). They are important in “maintaining overall public confidence in the administration of justice” (para. 25). Unreasonable delays risk offending the public’s sense of justice, as such delays leave the “innocent in limbo and the guilty unpunished” (para. 25; see also R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20). Moreover, delays exacerbate the suffering of victims and may discourage them from cooperating with the criminal justice system (Jordan, at paras. 23-24).

[95] At the hearing, counsel for the appellant submitted that the appellant’s decisions to discharge counsel cannot be considered wrongful because he was exercising his constitutional rights (transcript, at p. 32). Similarly, the Criminal Lawyers’ Association (Ontario) intervened to submit that the exercise of one’s legal rights cannot constitute wrongful conduct (I.F., at para. 23), as that would effectively punish an offender for the manner in which they conducted their defence (para. 25).

[96] It is beyond question that exercising one’s lawful rights is, in and of itself, not wrongful. Causing delay, e.g., by dismissing counsel, choosing not to plead guilty, or raising Charter motions, is not wrongful conduct per se. But such actions become wrongful conduct where an offender demonstrates an intention to frustrate or undermine the proper processes in the criminal justice system.

[97] For example, in R. v. Codina, 2019 ONCA 986, the Court of Appeal for Ontario upheld the sentencing judge’s refusal to grant enhanced credit because the appellant had significantly delayed her trial by bringing numerous motions and applications (para. 3). The applications included, inter alia, jurisdictional and constitutional challenges (R. v. Codina #1, 2017 ONSC 7162, 56 Imm. L.R. (4th) 43; R. v. Codina, 2017 ONSC 7315, 408 C.R.R. (2d) 1), Charter challenges (R. v. Codina #3, 2017 ONSC 7561), a motion for a directed verdict (R. v. Codina #6, 2017 ONSC 7648), a s. 11(b) Charter motion (R. v. Codina, 2017 ONSC 4886), and an adjournment request (R. v. Codina #7, 2018 ONSC 1096, 57 Imm. L.R. (4th) 175). At sentencing, the judge described Ms. Codina’s applications as being “entirely without merit” and that she was “repeatedly trying to litigate matters that had already been decided” (R. v. Codina #8, 2018 ONSC 2180, at para. 173). Based on this, the sentencing judge denied Ms. Codina enhanced credit.

[98] Ms. Codina’s intention to frustrate the operation of the justice system was evident through the numerous frivolous applications she raised throughout her trial, resulting in long periods of delay. Codina is an example of how an accused’s exercise of Charter rights can, in exceptional circumstances, constitute wrongful conduct in the context of enhanced credit. The determination of whether there was wrongful conduct is to be made on a case-by-case basis. As to the onus of proof, per this Court’s guidance in Summers, there is not an automatic right to enhanced credit (para. 75). Rather, the onus is on the offender (para. 79). That said, generally speaking, the fact that pre-sentence confinement has occurred will “be sufficient to give rise to an inference that the offender has lost eligibility for parole or early release, justifying enhanced credit” (paras. 79).

[99] When this has been shown, the onus shifts to the Crown (Summers, at para. 79) to show that the offender has engaged in wrongful conduct. It will be open to the Crown to demonstrate other grounds for withholding enhanced credit, including that the accused is a particularly dangerous offender who has “committed certain serious offences for whom early release and parole are simply not available” or that the “the accused’s conduct in jail suggests that he is unlikely to be granted early release or parole” (para. 79). Throughout the process, sentencing judges must bear in mind that “[e]xtensive evidence will rarely be necessary. A practical approach is required that does not complicate or prolong the sentencing process” (para. 79).
. R. v. J.W. [history of sentencing credits]

In R. v. J.W. (SCC, 2025) the Supreme Court of Canada partially allowed a criminal sentencing appeal, here from a dismissal of an appeal at the Ontario Court of Appeal (save for a calculation error), and that from a sentence of "9 years’ imprisonment, less an enhanced credit of 1,792 days" in the Superior Court.

In this case, the court stated a useful history of the development of the sentencing 'credit', to it's current statement in CCC 719(3-3.1):
(1) The Development of Enhanced Credit

[78] Prior to being amended in 2008, s. 719(3) of the Code permitted courts to “take into account any time spent in custody by the person as a result of the offence” when determining sentence.

[79] In R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, this Court addressed whether enhanced credit could be granted when doing so would result in a sentence falling below a mandatory minimum. Arbour J., writing for the Court, found that it could. She recognized that “in contrast to statutory remission or parole, pre-sentence custody is time actually served in detention, and often in harsher circumstances than the punishment will ultimately call for” (para. 28). Arbour J. also cited the Ontario Court of Appeal’s statement in R. v. Rezaie (1996), 1996 CanLII 1241 (ON CA), 31 O.R. (3d) 713, at p. 721, in which Laskin J.A. summarized the two rationales for granting enhanced credit for pre-sentence custody:
... in two respects, pre-trial custody is even more onerous than post-sentencing custody. First, other than for a sentence of life imprisonment, legislative provisions for parole eligibility and statutory release do not take into account time spent in custody before trial (or before sentencing). Second, local detention centres ordinarily do not provide educational, retraining or rehabilitation programs to an accused in custody awaiting trial. [para. 28]
[80] Overall, this Court in Wust endorsed the well-established practice of sentencing judges granting enhanced credit when fixing a sentence (paras. 44-45). Historically, judges granted credit at a rate of 2:1 (para. 45), though rates of 3:1 or even 4:1 were applied for offenders who were subject to exceptionally harsh pre-sentencing conditions (Summers, at para. 31).

[81] In 2009, Parliament enacted the Truth in Sentencing Act, S.C. 2009, c. 29 (“TISA”), which changed how enhanced credit was granted in two ways (Summers, at para. 32). First, Parliament amended s. 719(3) such that, while courts could “take into account any time spent in custody by the person as a result of the offence”, the rate of credit was limited to 1:1. Second, Parliament enacted s. 719(3.1), which provided that the enhanced credit could be increased to 1.5:1 “if the circumstances justify it”, unless the accused was detained pending trial for specified reasons, e.g., breaching bail conditions (Summers, at para. 32).

[82] In Summers and its companion case, R. v. Carvery, 2014 SCC 27, [2014] 1 S.C.R. 605, this Court was called on to determine what “circumstances” justified granting credit of 1.5:1, pursuant to s. 719(3.1) (Summers, at para. 7). Karakatsanis J., writing for the Court, explained that “[w]hile there is now a statutory maximum, the analytical approach endorsed in Wust otherwise remains unchanged” (para. 70). She affirmed the two rationales identified in Wust for granting enhanced credit, referring to them as the “quantitative rationale” and “qualitative rationale” (para. 70). She held that judges should continue to assign credit on those two bases.

[83] The “quantitative rationale” for the practice of granting enhanced credit ensures that “the offender does not spend more time behind bars than if he had been released on bail” (Summers, at para. 23 (emphasis deleted)). As the Corrections and Conditional Release Act, S.C. 1992, c. 20, does not account for an offender’s pre-sentence custody when determining their parole and early release eligibility (para. 24), the “pre-sentence detention almost always needs to be credited at a rate higher than 1:1 in order to ensure that it does not prejudice the offender” (para. 26). Karakatsanis J. observed that a rate of 1.5:1 ensures that the offender who is released after serving two-thirds of their sentence serves the same amount of time in jail, whether they are subject to pre-sentence detention or not (para. 26).

[84] The qualitative rationale recognizes that “time in pre-trial detention is often more onerous than post-sentence incarceration” (Summers, at para. 28). Karakatsanis J., explained:
Remand detention centres tend not to provide the educational, retraining or rehabilitation programs that are generally available when serving a sentence in corrections facilities. . . . As Cronk J.A. noted in this case, overcrowding, inmate turnover, labour disputes and other factors also tend to make pre-sentence detention more onerous. [para. 28]
[85] Section 719(3.1) previously provided that enhanced credit would not apply where “the reason for detaining the person in custody was stated in the record under subsection 515(9.1)”. This Court held in R. v. Safarzadeh‑Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, that this exception in s. 719(3.1) was unconstitutional. In 2018, Parliament amended s. 719(3.1) to remove the statutory exceptions (An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, S.C. 2018, c. 29, s. 66).

[86] Thus, s. 719(3) and s. 719(3.1) now read:
(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody.
. R. v. Prindle

In R. v. Prindle (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal sentencing appeal, here on Downes credit and bail issues:
[12] Although sentencing judges often quantify Downes credit, and then reduce the sentence by the number of months or days credited, “pretrial bail is conceptually a mitigating factor”, which is to be weighed with all of the other relevant factors when determining a fit sentence: R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 108.

[13] The criteria to be considered when assessing the weight of the mitigation include the amount of time spent subject to strict bail conditions; how stringent the bail terms were; their impact on the offender’s liberty; and the ability of the offender to carry on normal relationships, employment, and activity while on bail. The question to ask is, whether the bail conditions were punitive enough to be akin to punishment, thereby warranting mitigation: Downes, at para. 37; Joseph, at paras. 107-8.

[14] We agree with counsel that the time the appellant spent subject to strict bail conditions should have been considered as a mitigating factor on sentence. Given the length of time the appellant was subject to house arrest while on bail, and after considering that with all of the other relevant factors, we find that a fit global sentence is one of 12 months, which is at the lowest end of the range of sentences identified by the trial judge for these offences.
. R. v. Westcott

In R. v. Westcott (Ont CA, 2025) the Ontario Court of Appeal dismisses a criminal sentencing appeal, here considering sentence credit:
[14] We see no error in the sentencing judge’s analysis or findings. As this court observed in R. v. Marshall, 2021 ONCA 344, at para 52, pretrial incarceration conditions are a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at an appropriate sentence. As such, even where the incarceration conditions are harsh, they cannot justify the imposition of a sentence which would be unfit. This is precisely the manner in which the sentencing judge approached the issue, and the weight she attached to the conditions of the appellant’s pre-sentence custody is a discretionary determination that was hers to make.
. R. v. Brown [Duncan credit integrated into regular sentencing]

In R. v. Brown (Fed CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here from sentencing for firearm offences.

The court considered the integration of the prior 'Duncan credit' concept with general sentencing for harsh pretrial conditions:
[2] Mr. Brown was incarcerated for 816 days prior to his sentencing, for the most part at the Toronto East Detention Centre (“Toronto East”). Pursuant to the decision in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, he was entitled to 1.5 days of credit towards his global sentence, for each of those days (“Summers credit”). The Crown requested a global sentence of 12 years but submitted that before the Summers credit was applied the global sentence should be reduced by 6 to 12 months for “Duncan credit” because of the harsh conditions of pretrial incarceration Mr. Brown had experienced at Toronto East.

[3] The term “Duncan credit” used by the Crown was apt when, in the wake of this court’s decision in R. v. Duncan, 2016 ONCA 754, the broad practice was to respond to especially punitive conditions of pretrial custody by quantifying and applying a numerical deduction from an otherwise appropriate sentence. Although still widely used, this term can now be misleading given our subsequent decision in R. v. Marshall, 2021 ONCA 344. In Marshall, Doherty J.A., for the court, cautioned against treating the mitigating effect of harsh conditions of pretrial custody “as a deduction from the appropriate sentence in the same way as the ‘Summers’ credit’”: Marshall, at para. 53. Although he said it is not “necessarily inappropriate” to proceed in this way, he affirmed a strong preference for simply treating particularly punitive pretrial conditions as “a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence”: Marshall, at paras. 51-53. He adopted this approach to prevent courts from giving harsh conditions “unwarranted significance in fixing the ultimate sentence imposed”: Marshall, at para. 53.

[4] Put simply, judges must recognize that where an offender has already experienced particularly punitive conditions during their pre-sentence custody, the punishment they receive should be reduced to take this into account, but the degree of mitigation is a matter of discretion in all the circumstances, and not a matter of mathematical precision.

[5] The sentencing judge paid close attention to this court’s direction in Marshall. After reciting the Crown’s position, agreeing that the harsh conditions of incarceration were indeed mitigating, and then accurately describing the effect of Marshall, he imposed a global sentence of nine years’ incarceration, which he then reduced to five years and seven months based on Summers credit of three years and five months.

[6] In his submissions Mr. Brown did not suggest that the sentence is unfit and he did not take issue with the Summers credit. He argued instead that the sentencing judge did not place sufficient weight on the conditions of his pretrial custody, including the hardship caused by COVID-19. And he argued that the sentencing judge erred by failing to “explain how the final sentence was mitigated by the Duncan … principles”, leaving it “unclear” whether he “reduced the appellant’s sentence in any meaningful way”.

[7] We denied these grounds of appeal because these submissions are in disregard of the principles affirmed in Marshall. The sentencing judge was explicit in confirming that he considered all the mitigating factors when identifying a fit sentence, “including the harsh conditions at the Toronto East, including the lockdowns, the challenges of the food, the effect that they have had on the accused’s mental health and physical health, becoming infected twice”. There is therefore no basis for concluding that the sentencing judge failed to mitigate the sentence because of the harsh conditions he found. Similarly, there is no basis for inferring that the sentencing judge gave too little mitigating weight to the harsh effects of pretrial custody, or for otherwise interfering with his discretionary determination that even after such mitigation a nine-year sentence was fit given the extremely aggravating considerations that he identified.

[8] We rejected Mr. Brown’s related submission that the sentencing judge erred by failing to identify the degree of mitigation he applied. Just as judges are not required to mathematically quantify the mitigating effect they assign to other mitigating factors they are not required to do so for the mitigating effects of harsh conditions of incarceration. If we required judges to quantify the reduction as Mr. Brown proposes, we would effectively be disregarding our own decision in Marshall by requiring judges to assign precise credit for harsh conditions of incarceration. We therefore dismissed this ground of appeal.
. R. v. Kumi

In R. v. Kumi (Ont CA, 2025) the Ontario Court of Appeal defines some categories of criminal sentencing credit:
[12] The trial judge reduced the sentence that the appellant had left to serve by giving him a “Summers” credit of 36 months. Despite the uncontradicted evidence of the harsh pretrial custody conditions, however, he declined to make a further deduction for a “Duncan” credit, as proposed by the defence. The appellant contends that this was an error.

[13] We do not agree.

[14] As held in R. v. Marshall, 2021 ONCA 344, at paras. 51-53, a Summers credit and a Duncan credit are analytically distinct. A person convicted of an offence is generally given enhanced credit for time spent in custody awaiting trial, based on the principles set out in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. A Summers credit results in a straightforward deduction in the time left to serve in a sentence, statutorily capped at a maximum ratio of 1.5:1 days’ credit for every day in pre-sentence custody. As recognized in R. v. Duncan, 2016 ONCA 754, a sentencing judge may also take harsh presentence custody conditions into consideration when determining an appropriate sentence. A Duncan credit does not generally result in a mathematical deduction of time left to serve in a sentence, however. It is instead a mitigating factor taken into account, along with other mitigating and aggravating factors, in determining an appropriate sentence.

[15] The trial judge accepted the Crown’s submission that a global sentence of seven and a half years was lower than a sentence that did not include a Duncan credit for the harsh conditions experienced by the appellant in pretrial custody. He considered, but rejected, the defence argument that the sentence should be further reduced. He concluded that a shorter sentence would inappropriately subordinate denunciation and deterrence to the credit and would hence be unfit. This was a conclusion open to him to reach on the applicable sentencing principles and the circumstances of this case.
. R. v. Williams

In R. v. Williams (Ont CA, 2024) the Ontario Court of Appeal comments of both Duncan and Summers credits:
[28] Duncan credit is discretionary and is most properly treated as a mitigating factor in arriving at the appropriate sentence: R. v. Marshall, 2021 ONCA 344, at para. 52. Although it was not raised by the parties, given that the Summers credit submissions referenced the harsh conditions in the Thunder Bay jail, the sentencing judge should have considered whether enhanced credit was warranted. Based on the fresh evidence submitted by the appellant, we would do so.

[29] Unlike Summers credit, Duncan credit is not a deduction from the otherwise appropriate sentence: Marshall, at para. 52. In our view, given that no other issues are raised with respect to the sentencing judge’s determination of the appropriate sentence, and recognizing the particularly harsh conditions of much of the appellant’s PSC as a mitigating factor, we would grant 2 months of Duncan credit, varying the global sentence to 49 months.
. R. v. Lanktree

In R. v. Lanktree (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal regarding Summers and Duncan sentencing credits:
[13] Finally, the appellant argues that the sentencing judge erred in failing to consider the harsh conditions of the appellant’s PSC as a mitigating factor. The appellant spent a total of 175 days in PSC, split between the North Bay jail and the Central North Correctional Centre. At the sentencing hearing, defence counsel submitted that the appellant was in lockdown for 68 days in total: 14 days at the North Bay jail and 54 days at Central North. Some of these lockdown periods lasted for seven days at a time. Defence counsel requested enhanced credit of three to one for the lockdown periods (68 days), and the regular Summers credit for the remaining 107 days in PSC. This would have credited the appellant with 365 days of PSC.

[14] The sentencing judge noted in his reasons that defence counsel was asking that the appellant “be given all kinds of enhanced credits because of lockdowns and other reasons at the jail.” However, he declined to accept these submissions because the appellant was in custody of his own doing by re-offending while released, and because “the reality is lockdowns at the jail is something that everyone needs to live. It is not right, but it is reality.” The sentencing judge gave the appellant a 1.5:1 credit for the PSC.

[15] Duncan credit is discretionary and is entitled to deference on appeal: R. v. U.A., 2019 ONCA 946, at para. 15; R. v. McLean, 2023 ONCA 835, at para. 4. It is best treated as a mitigating factor: R. v. Marshall, 2021 ONCA 344, at para. 52.

[16] The sentencing judge considered and rejected granting additional credit beyond Summers credit although he did not expressly refer to it as Duncan credit. He pointed out that the appellant had initially been released on an undertaking, and it was only because of the second incident that he served so much PSC. In other words, the sentencing judge declined to exercise his discretion to grant additional credit.

[17] In arriving at a global sentence of 60 months, minus 9 months of Summers credit, the sentencing judge considered the relevant sentencing principles as well as the aggravating and mitigating factors. It is clear from his reasons and from the sentencing submissions that he was alive to the possibility of additional credit. He clearly considered and rejected the parties’ submissions, including trial counsel’s request for additional credit beyond Summers credit. In the circumstances of this appellant, he did not see the harshness of the conditions as a mitigating factor. We see no basis for interfering with the trial judge’s exercise of discretion in declining to grant additional Duncan credit.
. R. v. Halk

In R. v. Halk (Ont CA, 2023) the Court of Appeal considered 'Summers' sentencing credit:
[4] However, we agree with the appellant on the final issue raised. He was refused R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, credit for a 32-day period on the basis that he had specifically refused to attend court on the original date set for sentencing. Having reviewed the transcript of the appellant’s evidence on this point, where he offered an explanation and apology that was unchallenged in cross-examination and submissions, we are of the view that he should not have been denied enhanced Summers credit for this period of time.
. R. v. Menezes

In R. v. Menezes (Ont CA, 2023) the Court of Appeal considers 'Duncan' pre-sentence credit (PSC):
[81] Duncan credit was historically used to credit some time to an accused who had experienced “[p]articularly punitive pretrial incarceration conditions”: Marshall, at para. 52. Since Marshall, courts are directed to treat harsh pre-sentence conditions as a mitigating factor to be taken into account with all mitigating and aggravating factors when determining a fit sentence.
. R. v. McLean

In R. v. McLean (Ont CA, 2023) the Court of Appeal considered an appeal regarding 'Duncan' pre-sentence credits (PSC):
[3] The appellant submits that the sentencing judge erred in not awarding Duncan credit to reflect the harsh conditions of the appellant’s PSC (i.e., institutional lockdowns). The sentencing judge heard evidence on the issue from correctional officials, and from the appellant.

[4] The sentencing judge declined to award Duncan credit, correctly noting that credit for lockdown days is not an entitlement. The awarding Duncan credit is inherently discretionary. It is entitled to deference on appeal: R. v. U.A., 2019 ONCA 946, at para. 15.

[5] We see no error in the sentencing judge’s approach. We do not accept the appellant’s submission that he erroneously elevated the threshold for receiving such credit. He simply found that the appellant’s experience in lockdown conditions did not transcend the hardships of being incarcerated for a long time, often in a cell with another inmate. This was already reflected in the award 7 years’ credit for PSC. He further found that the appellant’s health issues were not impacted by the lockdowns and that he received proper medical attention.
. R. v. Johnston

In R. v. Johnston (Ont CA, 2023) the Court of Appeal considers factors on imposing a conditional sentence, including the role of pre-sentence credits:
[6] When considering the imposition of a conditional sentence, a court must first decide that the imposition of a sentence of imprisonment of less than two years is fit. If such a sentence is not fit, then a conditional sentence cannot be imposed: R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742, R. v. Basque, 2023 SCC 18. Thus, once the sentencing judge had determined that a three-year sentence was fit, a conditional sentence was not available. The conclusion that a penitentiary term of imprisonment was required is reinforced by the fact that both counsel had suggested penitentiary terms of imprisonment in their submissions.

[7] The sentencing judge nevertheless sought to impose a conditional sentence by deducting 12 months and 10 days as credits for pre-trial custody and strict bail conditions, thereby leaving less than two years for the respondent to serve. However, this is not an available route to imposing a conditional sentence because it ignores the point made expressly in Fice, at para. 4: “A conditional sentence cannot become available to an offender who otherwise deserves a penitentiary term solely because of the time the offender spends in pre-sentence custody.”
. R. v. C.L.

In R. v. C.L. (Ont CA, 2023) the Court of Appeal considered criminal sentencing 'credits':
(2) The sentencing judge did not err in her analysis of enhanced credit for pre-trial custody

[15] With respect to the issue of credit for pre-trial custody, the sentencing judge provided the appellant with enhanced credit between his first date of incarceration, August 1, 2017, to the date that the threat was made against the jail guard on January 17, 2018 (170 days of custody plus 85 days of credit, totalling 255 days). For the remainder of the time period between January 18, 2018 and his sentencing date of August 8, 2018 the appellant did not receive enhanced credit (202 days). The total amount of credit subtracted from the appellant’s sentence was 457 days, or the equivalent of 15.25 months.

[16] The determination of credit for pre-trial custody is discretionary and entitled to deference: R. v. Huang, 2020 ONCA 341, at para. 11. The sentencing judge was entitled to consider the likelihood of the appellant obtaining statutory release as part of the calculation of the appropriate amount of credit: R. v. Slack, 2015 ONCA 94, 125 O.R. (3d) 60, at paras. 16, 19-20.

[17] Here, the judge found a likelihood that the appellant would be denied statutory release because of his “very clear misconduct” in custody when he threatened to kill a correctional officer. This finding was supported by the record and was open to the sentencing judge.
. R. v. Browne

In R. v. Browne (Ont CA, 2023) the Court of Appeal considers some arguments regarding criminal sentencing credits:
[7] The appellant then complains that the sentencing judge failed to give adequate credit under the principles established in R. v. Suter, 2018 SCC 34. In fact, the sentencing judge directly addressed the issue of collateral consequences in her reasons. In doing so, however, she noted that the principles established by Suter cannot be used to reduce a sentence to the point where it becomes disproportionate to the gravity of the offence.

[8] The appellant’s next complaint is that the sentencing judge failed to give adequate credit or consideration to the Morris factors.[1] Once again, the sentencing judge made express reference to the Morris factors in her sentencing reasons. As is the case with the Suter factors, the Morris factors also cannot justify the imposition of a sentence that is disproportionate to the seriousness of the offence. As this court said in Morris, at para. 76, “Evidence that an offender's choices were limited or influenced by his disadvantaged circumstances, however, speaks to the offender's moral responsibility for his acts and not to the seriousness of the crimes.”

[9] We would add, on this point, that we are satisfied that the sentencing judge’s adoption of a 15-year sentence adequately accounted for the Suter and Morris factors that she expressly identified. Indeed, we note that Crown counsel had initially indicated that an 18-year sentence would have been appropriate.

[10] Finally, the appellant says that the sentencing judge failed to give adequate credit under the principles in R. v. Duncan, 2016 ONCA 754. The appellant says that the one-year credit that the sentencing judge gave for the conditions under which the appellant served his pre-sentence was inadequate given the history of lockdowns; COVID issues; and lack of proper medical treatment. The appellant submits that a credit of two years ought to have been given.

[11] We do not dispute that the sentencing judge might have given additional credit for the particular circumstances of pre-sentence custody that the appellant endured. However, the sentencing judge concluded that a credit of one year was sufficient. Her determination is entitled to deference from this court. There is nothing manifestly unreasonable in her decision on this issue and therefore there is no basis for this court to interfere.


CC0

The author has waived all copyright and related or neighboring rights to this Isthatlegal.ca webpage.




Last modified: 25-05-25
By: admin