|
Criminal - Sentencing - Credits (3). R. v. J.W. [credit for time in mental facility]
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.
Here the court analyses the appellant's sentencing credit in light of their spending pre-sentence time in a mental facility:(4) Application
[106] In the present case, the appellant spent 607 days in custody at Providence; this time did not go towards parole or early release eligibility. Pursuant to Summers, the fact that pre-sentence detention has occurred will generally be sufficient to infer that the offender has lost parole and early release eligibility, thereby justifying enhanced credit (paras. 71 and 79). However, as noted, the appellant was denied this enhanced credit by the sentencing judge based on wrongful conduct. The sentencing judge concluded that “most of the reasons for delay were caused by or initiated by” the appellant (at para. 10), as he was “frequently changing his mind and changing his lawyers” (para. 46).
[107] While the sentencing judge accurately observed that the appellant’s conduct led to delays in his proceedings, she did not turn her mind to whether such conduct was wrongful. In my view, the sentencing judge erred in her assessment by failing to have regard to a relevant factor, that being the appellant’s mental health during his committal period. The evidence indicates that the appellant’s conduct prior to being found unfit was a consequence, entirely or to a significant degree, of his mental and cognitive state.
[108] As noted above, the Gladue report and pre-sentence reports both describe the appellant’s long-standing history of mental health challenges. In addition, there was evidence from the forensic psychiatrist who prepared the appellant’s fitness report that the appellant’s case “has taken longer because he has gone through several lawyers” and that this “was because of his untreated psychotic mental state” (A.R. Supp., at p. 8). Upon being deemed unfit and transferred to Providence for treatment, “things settled down” for the appellant (p. 8). He was able to retain and instruct his fourth and final counsel, so as to move towards the disposition of his case (p. 8).
[109] The sentencing judge failed to have proper regard to the foregoing when considering whether the appellant’s actions intentionally frustrated the proper operation of the system of criminal justice. In light of this, I would conclude that the appellant’s actions, while having caused significant delays, did not constitute wrongful conduct that would disqualify him from enhanced credit.
[110] Accordingly, I would vary the sentence to give the appellant enhanced credit at a rate of 1.5:1 for the 607 days that he was at Providence. Accounting for the revised calculations by the Court of Appeal, this amounts to an additional 304 days of enhanced credit.
[111] Given that there is a sufficient basis to grant Summers credit based on the quantitative rationale (paras. 71 and 79), it is therefore unnecessary for me to address whether the qualitative rationale applies in this case. On that point, I would say only that while conditions in a mental health facility will be different than those in a remand centre, both constitute forms of imprisonment. As stated in Summers, “[i]ncarceration at any stage of the criminal process is a denial of an accused’s liberty” (para. 49, citing Rezaie, at p. 104). . R. v. J.W. [SOR]
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.
Here the court considers the appellate SOR for sentencing 'credit' issues:(3) The Standard of Review
[100] This case also provides this Court with an opportunity to clarify the standard of review when assessing a sentencing judge’s determination as to enhanced credit.
[101] A sentencing judge’s decision on enhanced credit is to be considered as part of the overall sentence imposed (see Summers, at para. 59). Thus, there is no separate standard of review for enhanced credit. Rather, where an appellate court reviews a sentencing judge’s decision to award or deny, enhanced credit, they are to do so applying the standard of review for sentencing (see R. v. Assiniboine, 2016 MBCA 44, 326 Man. R. (2d) 282, at para. 30; R. v. Slack, 2015 ONCA 94, 125 O.R. (3d) 60, at para. 9).
[102] This means that where a sentencing judge has erred in principle, failed to consider a relevant factor, or erroneously considered an aggravating or mitigating factor when assessing an offender’s eligibility for enhanced credit, and such an error had an impact on the assessment, then this will be a basis for an appellate court to intervene.
[103] Absent such an error, a sentencing judge’s determination as to enhanced credit is entitled to deference (Assiniboine, at para. 30; Stonefish, at para. 30). As Arbour J. held in Wust, there is a “well-entrenched judicial discretion” provided in the enhanced credit regime (para. 44). There is no advantage in “endorsing a mechanical formula” for enhanced credit (para. 44). Instead, Arbour J. explained:The credit cannot and need not be determined by a rigid formula and is thus best left to the sentencing judge, who remains in the best position to carefully weigh all the factors which go toward the determination of the appropriate sentence, including the decision to credit the offender for any time spent in pre-sentencing custody. [para. 45] [104] This deference is subject, however, to the sentence as a whole being found demonstrably unfit (see Lacasse, at para. 52). In such circumstances, an appellate court may intervene and vary the sentence, including the quantum of enhanced credit.
[105] In sum, the appellate standard of review for enhanced credit is not distinct from that for sentencing overall; rather, it is an application of that standard.
|
