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

For an overview of the judicial history of this case, please see the first installment of this contribution. In this second contribution, I focus on the two underlying legal questions before the SCC.    


At the SCC: What is an equitable and principled approach to sentencing mentally and/or cognitively impaired offenders?

In the accused’s Memorandum of Argument (“MoA”), it is stated that “[t]his appeal raises critical questions about how courts can equitably approach the difficult task of sentencing individuals with mental disorders and cognitive impairments” (MoA, para 17). Accordingly, the two questions of national importance called upon by the SCC to answer are identified as follows: 


  1. Whether, outside of the dangerous offender scheme, sentencing judges may take anticipated time to complete institutional programming into account when fixing the length of a custodial sentence; and


  1. How the quantitative and qualitative rationales for enhanced pre-sentence credit apply to offenders with significant mental illness or cognitive impairments, namely:


(i) Whether delays caused by the accused, particularly delays connected to their disorders or disabilities, are “wrongful conduct” disentitling them to enhanced credit; and


(ii) Whether enhanced credit can be denied based on the conditions of forensic psychiatric facilities compared to remand facilities or the offender’s living conditions in the community.



Increasing a Sentence to Account for Institutional Programming

To my understanding, the accused’s argument on the first ground of appeal rests on the assertion that while a sentencing judge may not solely rely on anticipated or assumed institutional programming to craft a sentence, they are likewise disentitled to extend a sentence based on this factor as well. 

On appeal to ONCA, the Court distinguished this argument by reference to R v Spilman, 2018 ONCA 551 (“Spilman”). Spilman is important because it concerns sentencing in a unique context: dangerous offenders. A designation of “dangerous offender” is unique because it is governed by distinct objectives; namely, the enhanced objective of public safety pursuant to the provisions in Part XXIV of the Code. Accordingly, consideration of essential or recommended rehabilitation in sentencing is permitted, notwithstanding that it may work as a form of preventative detention. 

As acknowledged by the Court of Appeal, Spilman stands for the proposition that outside the dangerous offender context, focusing solely on this single factor of anticipated institutional programming is prohibited, as it runs afoul to s. 718 of the Code and may result in a disproportionate sentence or one that is outside the appropriate range (J.W, para 16, emphasis original). The Court of Appeal found that the sentencing judge did not err in arriving at a global sentence of nine years because the consideration of the accused’s mental and intellectual disabilities was one factor, among many, in crafting an appropriate sentence. Therefore, in ONCA’s view, the sentencing judge did not solely rely on the accused’s disabilities, against anticipated rehabilitative programming time, to arrive at the nine year sentence (J.W, para 16).

In my view, the difficulty in the Court’s analysis rests in the fact that it overlooks a crucial aspect of the sentencing judge’s line of reasoning. I agree with the Court of Appeal that “Spilman did not call into question the well-established principle that, in determining a fit sentence within an appropriate range, sentencing judges may turn their minds to factors such as the protection of the public and the goal of rehabilitating offenders” (J.W, para 16). To that end, I do not find it unreasonable or inappropriate that the sentencing judge considered rehabilitation and public safety as relevant objectives, particularly given the very serious nature of the underlying conviction. 

However, with respect, the Court appears to take for granted that this objective was, in fact, made in reference to the accused’s cognitive or intellectual disabilities. In my view, this is troublesome because it encourages sentencing judges to embark on a rather speculative inquiry into what proper rehabilitation looks like for a cognitively impaired or mentally disabled accused. In the case at hand, there was almost no evidence to support the sentencing judge’s finding that the accused would need to spend more time in a correctional facility to meaningfully affect rehabilitation. Namely, while the sentencing judge considered submissions from professionals regarding a recommended course of treatment for J.W, none of the evidence addressed the question of how his developmental delay or other conditions of precarity affected the possible duration of rehabilitative programming (J.W trial, paras 35-38). For example, there was evidence to suggest that the accused’s “developmental delay, his diagnosis of FASD, and the dysfunctional nature of his family” (J.W trial, para 35) caused concern for releasing him back into the community as an untreated sexual offender. However, this did not address whether it would take the accused longer to complete treatment in custody because of these circumstances. 

For this reason, I find the accused’s argument that endorsing such a precedent may entrench the problematic result of imposing potentially longer sentences on disabled offenders to be compelling (MoA, para 32). To be clear, I am not suggesting that the consideration of providing more time to complete rehabilitative programming for certain offenders should be dispensed with by the SCC full-stop. Rather, I believe that such an approach needs to be anchored in a principled basis and supported by evidence. This is particularly so given that the unique needs of disabled offendersespecially those convicted of very serious crimes, with grave impacts on victims/survivors and their communities necessarily informs the prospects of meaningful rehabilitation. In fewer words, accepting that a greater quantity of time is needed simply because an accused suffers from certain deficits or disabilities does not appear to address the overarching concern of the quality of rehabilitation.  

Denying enhanced credit on the basis of favourable living conditions in the community

Regarding the second ground of appeal, the Court of Appeal for Ontario found that the prolonged nature of the proceedings was properly attributable as “wrongful conduct” of the accused, under the quantitative Summers indicia. The Court therefore held that this finding by the sentencing judge was neither factually nor legally in error (J.W, paras 24-25). On the qualitative aspect, the Court declined disturbing the sentencing judge’s finding that “the conditions at Providence were not only less harsh than those in the Quinte Detention Centre, but were also comparable or favourable to those the appellant experienced while living in the community” (J.W, para 26). 

However, as the accused argues: 


The denial of enhanced credit for pre-sentence custody on grounds that the conditions of detention are preferable to an accused person’s living arrangements in the community is, as far as the applicant is aware, unprecedented. The applicant submits there is a good reason for this absence of authority: such a comparison is offensive. It imagines that the denial of bail is somehow a windfall for impoverished and marginalized accused people and functionally punishes them by imposing a barrier to Summers credit that does not exist for those with greater finances (MoA, para 44).


I find this argument persuasive. Summers stands for the proposition that enhanced credit for pre-sentence custody is meant to reconcile the possible prejudice or inequality that arises through the “full impact of  [the pre-sentence] detention” (Summers, para 2). To that end, Summers recognizes that there are significant differences between pre-sentence custody, and for example, possible release on bail. As it concerns the accused’s argument above, I find it reasonable to point towards the fact that there are significant intersectional and systemic factors that may inform the causal link between the denial of bail and the possible prejudice that arises from pre-sentence custody therein.

It is unclear to me how a subjective assessment of an accused’s living conditions outside the correctional context accounts or outweighs these considerations of prejudice, if at all. On the contrary, in my view, it encourages judges to embark on a very subjective (and often, speculative) inquiry of what “favourable” conditions may look like when it comes to an offender with distinct needs. With respect, I find that analyzing this against the offender’s living conditions in the community is problematic because it risks taking for granted the intersectional array of factors that inform that positionality in the first place, especially when put into dialogue with mental illness or other forms of precarity. For example, in the case at hand, the accused emphasizes that his living conditions outside of custody have necessarily been informed by colonial legacies (MoA, para 45). Unfortunately, at both levels of Court, this aspect was not considered meaningfully when assessing the denial of a Summers credit. Respectfully, without proper evidence or analysis, this runs the risk of undermining crucial bedrocks of our sentencing regimes,  includingmost significantly in this caseGladue principles.

Treating Jails and Hospitals Differently 

Further, in the particular context of this case, it is also significant that the analysis appeared to be informed by the fact that one institution was a detention centre (Quinte) and the other was a forensic hospital (Providence). As a matter of statutory interpretation, the Code does not appear to differentiate or attempt to stratify “custody” as between forensic hospitals or jails (MoA, para 51). Conversely, as a matter of practicality, forensic hospitals are still necessarily forms of pre-sentence custody writ large that may engage the twin rationales for a Summers credit. Forensic hospitals may still have significant and different practical outcomes based on a plethora of factors: the relative circumstances of the offender, the relative and institutional circumstances of the hospital, and to a lesser extent, the relative positionality of the decision-maker in regard to both aforementioned factors. 

On the contrary, I can appreciate that the qualitative indicia of access to rehabilitative programming may in fact be a relevant consideration. The logic here is that forensic hospitals may be better equipped to offer rehabilitative programming, which informs the qualitative indicia of the Summers credit. However, in the case at hand, I agree that it is significant that Providence could not offer the accused the type of rehabilitative programming during pre-sentence custody that the sentencing judge found to be significant in terms of rehabilitation at sentencing (MoA, para 42). 

In broader strokes, I also believe that denying Summers credit based primarily on operational differences between forensic hospitals and other forms of pre-sentence custody sets a dangerous precedent. Namely, I agree that it incentivizes pre-sentence custody in detention centres (rather than hospitals) because, on the facts of this case, the 1.5:1 Summers credit is more likely to be granted in those circumstances (MoA, para 47). In my view, beyond the harm this may cause to a mentally disordered or cognitively impaired offender, it also reproduces the logic of an offender attempting to “game the system.” This is consequential because it is the very overarching collective concern that animated the legislative history informing the Summers decision in the first place.       



The J.W appeal raises complex and profound questions for the SCC to answer. It will undoubtedly be important to see how the Court grapples with the theoretical underpinnings of sentencing regimes in Canada against the practical realities for mentally disordered or cognitively impaired offenders convicted of very serious crimes. 

This article was edited by Ariel Noemi Montana

Angelika Kuzma

Angelika is a 3L J.D. student at Osgoode Hall Law School. She holds an Honours Bachelor of Arts in Criminology & Sociolegal Studies and Political Science from the University of Toronto. She sincerely enjoys reading and writing about the law, particularly in the area of appellate advocacy. Angelika has developed her passion for advocacy at Osgoode through her involvement with the Innocence Project, the Indigenous Peoples Environmental and Climate Justice Project, and as a two-time researcher for the Wilson Moot. Her legal interests include public international law, Charter jurisprudence, criminal law, and legal theory. Upon graduating, Angelika will be completing her articles with the Ministry of the Attorney General.

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