Appeal Watch: Sentencing Offenders with Disabilities in J.W. v His Majesty the King (Part I)

Content Warning: The facts of this case involve the mention of serious violence and sexual assault.  

The Supreme Court of Canada (“SCC”) has granted leave [40956] to appeal the Court of Appeal for Ontario’s (“ONCA”) decision in R v J.W., 2023 ONCA 552 (“J.W”). The case revolves around the complex web of jurisprudence informing the discretionary sentencing powers afforded to judges, particularly in the context of offenders with mental disorders and cognitive impairments. 

In this appeal, the SCC is being asked to weigh in on two complex and thorny questions: First, whether judges are entitled to weigh an offender’s mental illness or intellectual disability in order to assess the assumed time needed to complete post-sentence rehabilitative programming. Second, what the rationales are for granting or denying enhanced pre-sentence credit to offenders who spend time in pre-sentence incarceration at a psychiatric hospital (as opposed to a detention centre).  

Overview of Case

The appellant and accused, J.W, suffers from significant intellectual and cognitive deficits, in addition to Fetal alcohol spectrum disorder (FASD) and schizophrenia (J.W, para 9). In 2019, the accused was charged with three Criminal Code, RSC 1985, c C-46 (“the Code”) offences arising out of a very serious and violent sexual assault. While residing at a group home, the accused was alleged to have: (1) sexually assaulted the complainant, K.G, an employee at the group home; (2) threatened to kill her if she disclosed the assault; and (3) recorded her, under duress, purporting to say that the sexual activity was consensual (J.W, para 2). 

The accused spent about four years in pre-sentence custody. This time was stratified amongst two institutions: he spent about 607 days in a forensic hospital, Providence Care Hospital (“Providence”), and the remainder in a correctional facility, Quinte Detention Centre (“Quinte”) (J.W, paras 2, 11). After prolonged proceedings, the accused eventually pleaded guilty to sexual assault, uttering a death threat, and unlawful confinement (J.W, para 2). The accused received a global sentence at trial of nine years imprisonment (J.W, para 2). 

Summers Framework 

To appreciate the full breadth of the decision and the pending appeal, it is beneficial to provide context; namely, in reference to enhanced pre-sentence credit. 

As part and parcel of Canada’s sentencing regimes, offenders who remain in pre-sentence custody may be able to avail themselves of enhanced credit upon sentencing, as per s. 719(3.1) of the Code. In a nutshell, this means that for every day that an accused spends in pre-sentence custody, the sentencing judge may award an enhanced credit, so long as the circumstances justify it. This practice works to reduce the ultimate custodial sentence and is capped at a rate of 1.5:1. However, as acknowledged by the Court of Appeal for Ontario, there is no automatic entitlement to such a reduction and the decision remains subject to the sentencing judge’s discretion (J.W, para 22). 

R v Summers, 2014 SCC 26 (“Summers”) is one of the leading authorities on enhanced pre-sentence credit which guides this judicial discretion, also known as a “Summers credit” (J.W, para 11). For a detailed overview of the case, please see former contributor Judy Hemmings’ 2014 article here. Briefly, Summers recognizes that there are “twin rationales” for granting enhanced credit; namely, quantitative and/or qualitative reasons for granting an offender enhanced pre-sentence credit. 

On the quantitative aspect, the loss of eligibility for parole, earned remission, and statutory release during the period of pre-sentence custody are circumstances that may justify an enhanced Summers credit (Summers, paras 26-27, 34). The logic here is that this can result in a longer term of actual incarceration for offenders who were denied bail (Summers, para 2). Crucially, however, a Summers credit may be denied if the “wrongful conduct” of the offender would make such credit inappropriate (Summers, para 48).  

On the other hand, as acknowledged by the Court of Appeal for Ontario, “[t]he qualitative rationale for Summers credit is to recognize the time in pre-trial detention is often more onerous than post-sentence incarceration” (J.W, para 27). For example, a unanimous Supreme Court in Summers elucidated that custodial conditions may be a relevant factor, because  “[r]emand detention centres tend not to provide the educational, retraining or rehabilitation programs that are generally available when serving a sentence in corrections facilities”  (Summers, paras 2, 28). 

Trial Decision: Sentencing 

Both the accused and the complainant are Indigenous (J.W, para 6). At trial, while the sentencing judge noted that the rehabilitation of an offender—particularly a young Indigenous offender, such as the accused in this case—is always a significant goal in sentencing, that objective may be tempered by other legislated Code provisions (R v W. (J.), 2022 ONSC 2274 at para 17 [“J.W trial”]). Namely, in the case at hand, the sentencing judge identified that the primary objectives in sentencing were denunciation and deterrence, pursuant to s. 718.04 of the Code (J.W trial, paras 17-18).

Consequently, the sentencing judge found that an appropriate range for sentencing was nine years (J.W trial, para 40). Significantly, the sentencing judge rejected the Crown’s proposal for an 8-10 year sentence range. However, she noted that while the lower range of seven to eight years, as proposed by defence counsel, could meet the objectives of denunciation and general deterrence, she was not satisfied that “it would ultimately work to protect society and keep women in the community safe” (J.W trial, para 41). On this point, rehabilitation becomes prominent. In arriving at her sentence decision of nine years, the sentencing judge noted that “[the offender] will need sufficient time in a federal institution to complete needed programming prior to his release. It is likely that [the offender’s] mental health issues and cognitive disabilities will result in his needing longer than may be the case for other offenders to complete the needed treatment programs” (J.W trial, para 42).

As it concerns awarding a Summers credit, the sentencing judge awarded the accused 1:5:1 credit for the time spent at Quinte, and only 1:1 credit for the time spent at Providence. She found that the quantitative rationale for a Summers credit did not apply for the time at Providence because “[the accused’s] lengthy pre-sentence custody was due in great measure to his frequently changing his mind and changing his lawyers” (J.W trial, para 46). Namely, over the course of the four years, the accused resiled from three proposed guilty pleas, fired three different lawyers, and was later found unfit and subject to a treatment order (J.W trial, paras 9-10). Furthermore, she found that the qualitative rationale also did not require awarding enhanced credit because the accused’s conditions at Providence were less harsh than those at Quinte or when he was otherwise in the community (J.W trial, paras 46-49). 

Appeal Decision 

There were three grounds of appeal at the Court of Appeal for Ontario: 

1. Did the sentencing judge err in principle by imposing an unfit sentence based on the anticipated time the appellant would need to complete recidivism programming?
2. Did the sentencing judge miscalculate the total duration of the appellant’s pre-trial custody?
3. Did the sentencing judge err in law by refusing to grant Summers credit for time spent in pre-trial custody at Providence Care Hospital?

A unanimous ONCA three-judge panel only allowed the appeal on the second issue, based on a mathematical miscalculation of pre-sentence custody (which was conceded by both parties). Accordingly, the Court awarded the appellant 33 days of additional credit against the sentence imposed and dismissed the rest of the appeal (J.W, para 29). 

Please see the next installment for a detailed analysis of the pending appeal.

This article was edited by Ariel Noemi Montana.