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Criminal - Sentencing - Credits (3). R. v. Stewart
In R. v. Stewart (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal sentencing appeal, here where the defendant "pleaded guilty to three firearms-related offences: two counts of unauthorized possession of a non-restricted firearm (contrary to s. 92(1) of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”)) and one count of failure to comply with a release order which stipulated that he was not to possess any weapons as defined by the Code (s. 145(5)(a))".
Here the court considered whether pre-sentence bail conditions could, in this case, count as a Downes sentencing credit:a. The Sentencing Judge did not err in Downes Credit Allocation
[9] Defence counsel submitted that the appellant’s 20 months of pre-sentence bail conditions should be considered as a mitigating factor. His bail conditions were restrictive: he was subject to electronic monitoring and could not leave his residence unless he was with his surety or in the event of a medical emergency.
[10] The appellant argues that although the sentencing judge stated that she would account for the strict bail conditions using a non-numerical formula, she ultimately took a numerical approach, giving Downes credit of one month. The appellant argues that while it was open to the judge to apply this approach, she erred in doing so because the credit did not adequately reflect the harshness of the appellant’s bail conditions.
[11] The appellant’s complaint is essentially that the sentencing judge should have given him more Downes credit for time spent on bail. Nevertheless, he acknowledges that quantification, rather than treating harsh pre-sentence custody as a mitigating factor, is “not necessarily inappropriate”: R. v. Lowe, 2025 ONCA 475, at para. 17.
[12] While the appellant asserts that there was evidence of hardship arising from his bail conditions and states that he struggled to complete further schooling or find employment, there was no evidence before the sentencing judge about the impact of the bail conditions or any suggestion that the appellant pursued online opportunities.
[13] The consideration of Downes mitigation is both fact-specific and discretionary: Lacasse, at para. 44; Downes, at para. 37. Neither the approach of the sentencing judge nor the credit allocated reflect an error in principle. . R. v. Clarke
In R. v. Clarke (Ont CA, 2026) the Ontario Court of Appeal considered the criminal sentencing issue of 'Duncan credits':Analysis of the “Duncan Credit” Issue
[12] A Duncan credit is a discretionary credit. In R. v. Duncan, 2016 ONCA 754, at para. 6, this court held that:[P]articularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. [13] As this court recently observed in R. v. Brown, 2025 ONCA 164, although still often referred to as a “Duncan credit”, since R. v. Marshall, 2021 ONCA 344, the correct way to consider the effect of harsh conditions of pretrial custody is as a mitigating factor to be taken into account together with all other mitigating and aggravating factors in determining the appropriate sentence, and not as a deduction from an otherwise fit sentence.
[14] A sentencing judge’s “highly discretionary” determination of the impact of harsh pre-sentence custody conditions is owed considerable deference: R. v. Deiaco, 2019 ONCA 12, at para. 4. This court will intervene only if there is an error of law, error in principle, or the sentence is demonstrably unfit: Brown, at para. 13. Where there was no request for consideration of harsh pre-sentence custody conditions at first instance, this court may decide to admit fresh evidence on appeal and to consider the matter, however no reduction will be warranted if the sentence is otherwise fit: see, e.g., R. v. Guerrero, 2025 ONCA 14, at para. 6. . R. v. Lowe
In R. v. Lowe (Ont CA, 2025) the Ontario Court of Appeal considered Downes credits as a sentencing matter:[17] Lastly, we are not persuaded by the appellant’s argument that the sentencing judge erred by apportioning a specific reduction to the mitigating impact of his time spent on bail. While Downes credit is best conceptualized as a mitigating factor, the sentencing judge’s decision to grant numerical credit is “not necessarily inappropriate” so long as it does not “skew the calculation of the ultimate sentence” by giving the credit unwarranted significance: R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at paras. 107-8, 112-4; R. v. Marshall, 2021 ONCA 344, at para. 53. Crediting 70 days to account for strict bail conditions in this case did not “skew the calculation” of the ultimate sentence. . 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.
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