Law360 Canada (August 26, 2026, 9:52 AM EDT) --

John L. Hill

A sentencing judge has delivered another sharp reminder that a court’s punishment cannot be considered in isolation from the conditions under which an accused has already been held. Justice Esther Rosenberg’s decision, released on Aug. 19 (R. v. Daniel), is significant not because the offences were minor. They were anything but.

Michael Daniel pleaded guilty to possessing 965 grams of cocaine for the purpose of trafficking, possessing a prohibited firearm, and possessing a restricted firearm while prohibited from doing so. The firearm was a modified Glock .45 with a metal sear, allowing it to fire fully automatically. Bulk ammunition was stored with it.

Police also found more than four kilograms of hashish, methamphetamine and cannabis at the Hamilton residence where Daniel lived with his fiancée and three children.

The Crown sought a global sentence of 9½ years. The judge regarded denunciation and deterrence as the paramount objectives. She found the offences highly serious and Daniel’s moral blameworthiness to be high.

But the final sentence was six years and three months, less credit for pretrial custody, substantially below the Crown’s position. The reasons are worth examining because they illustrate the increasingly important role that the conditions of provincial pretrial detention play in sentencing.

Daniel spent 578 days in pretrial custody. Applying the usual 1.5-to-one credit, that amounted to 867 days, or approximately two years and four months. But defence counsel Jeffrey Hartman and Allana Scott of the law firm Lockyer, Zaduk, Zeeh also asked the judge to consider the conditions under which those days were served.

The evidence regarding Hamilton-Wentworth Detention Centre was disturbing. An institutional report disclosed 90 days of lockdown during the period covered, including 33 days of full lockdown. Daniel said his experience was considerably worse.

He described being triple-bunked for approximately 85 per cent of his time at the institution, sleeping on a worn mattress on the floor near the toilet. He described prolonged periods without fresh air, inadequate access to showers, shortages of clean clothing and bedding, dirty cells and the presence of insects and rodents.

During lockdowns, he sometimes had to choose between showering and calling his family. At times, he was not offered a shower at all.

The judge did not accept all of his evidence. Daniel had kept a diary, but his records were inconsistent. The judge therefore declined to rely on his precise calculation of lockdown days. She also accepted that he may have exaggerated some of his experiences.

But that did not end the inquiry. The judge made an important distinction between whether every detail could be proved and whether the underlying experience was credible.

She accepted that Daniel spent long periods confined to his cell, that his access to showers and outdoor exercise was restricted, and that he found the resulting conditions stressful and depressing. More importantly, the evidence from the institution itself corroborated the broader picture.

Staff Sgt. Nathan Aitken acknowledged that staffing shortages were the primary cause of lockdowns. He also conceded that the institutional report contained errors. That evidence made it difficult to dismiss Daniel’s complaints as merely the self-serving account of an inmate seeking a shorter sentence.

The judge placed Daniel’s experience within a much broader context. She noted that judges at various levels of the court have repeatedly condemned conditions in Ontario’s jails. Triple-bunking, she said, had become normalized, while full and partial lockdowns had become standard.

There may be legitimate reasons for individual lockdowns. But the evidence before her showed that staffing shortages were the principal cause. The consequences were not trivial. They affected showers, programming, telephone access, contact with family and counsel, and access to the yard.

The judge cited earlier judicial criticism of Ontario’s correctional system, including R. v. Persad, 2020 ONSC 188, in which the conditions at Toronto South Detention Centre were described in exceptionally harsh terms. She also referred to R. v. Bassey, 2025 ONCJ 501 and R. v. Crawford, 2025 ONCJ 385, including the observation that the degree of civilization in a society can be judged by entering its prisons.

The message running through those cases is becoming difficult to ignore: Ontario’s correctional conditions are no longer being described by judges as isolated or temporary failures. They are increasingly being described as systemic.

Perhaps the most striking feature of Daniel is that the Crown did not dispute that the jail conditions deserved sentencing credit. Both Crown positions accepted a six-month reduction.

The defence sought more. The judge ultimately granted Daniel a one-year reduction for the harsh conditions. That is important. The reduction was not treated as a reward for the offender or as a finding that his sentence was otherwise excessive. Rather, the judge recognized that the punishment already inflicted during pretrial detention was relevant to determining the proportionate sentence still to be served.

The judge nevertheless emphasized an important limitation. Relying on R. v. Westcott, 2025 ONCA 291, she noted that mitigation for harsh presentence custody cannot distort the overall sentencing analysis or render the sentence unfit.

That qualification is critical. The principle is not that sufficiently unpleasant jail conditions can buy an offender out of a proportionate sentence. Rather, the total punishment imposed by the state must remain proportionate.

The other noteworthy feature of the decision concerns Daniel’s Indigenous background. Daniel was Indigenous on his mother’s side but had not grown up immersed in Indigenous culture. His great-grandmother had married a white man and had been adopted into a white family.

Daniel did not obtain a First Nations presentence report, commonly called a Gladue report (R. v. Gladue, [1999] 1 S.C.R. 688).

The Crown could therefore have argued that there was insufficient evidence connecting his circumstances to the systemic and background factors that Gladue requires sentencing judges to consider.

The judge acknowledged the difficulty but did not regard the absence of a Gladue report as the end of the matter. She considered the historical circumstances surrounding the loss of Indigenous status through marriage and the subsequent legislative changes to the Indian Act. She also considered Daniel’s efforts while incarcerated to learn about his Indigenous ancestry and to participate in Indigenous traditions.

The judge concluded that Daniel had experienced a loss of culture and had been disconnected from his community and heritage. She further concluded that that disconnection itself could be relevant to sentencing. She reduced the sentence by a further three months pursuant to s. 718.2(e) of the Criminal Code.

This aspect of the decision should not be overstated. The judge did not suggest that merely establishing Indigenous ancestry automatically results in a sentencing reduction. Indeed, she expressly noted the difficulty of assessing Gladue factors when an offender was not raised in an Indigenous community and when there was little evidence of the impact of systemic and background factors on the offender.

But Daniel demonstrates that the analysis is individualized. The absence of a formal Gladue report did not prevent the judge from considering the evidence.

The judge grounded her reasoning in the Supreme Court of Canada’s decisions in R. v. Ipeelee, 2012 SCC 13 and R. v. Lacasse, 2015 SCC 64. Those authorities emphasize that proportionality is the fundamental principle of sentencing.

That principle applies in both directions. A sentence must be sufficiently severe to reflect the gravity of the offence and the offender’s responsibility. But it must not be disproportionate if the offender has already endured punishment under conditions substantially harsher than those contemplated by the ordinary sentencing calculation.

Daniel’s case demonstrates why that distinction matters. There was little question that he deserved a penitentiary sentence. The quantities of drugs were substantial. The firearm was prohibited, fully automatic and connected to the drug operation. Daniel was already subject to a weapons prohibition and had a previous trafficking conviction.

Yet the judge considered the other side of the equation. Daniel was 36, had two young children, and had acted as a father figure to another child. His previous conviction was at approximately 13 years of age and was his only other entry in his criminal record. He had no prior firearms convictions or breaches of court orders. He had pleaded guilty, accepted responsibility, participated in available programming and expressed a desire to obtain his high school diploma and trade certification. Those factors did not diminish the seriousness of his conduct. They helped determine the proportionate sentence.

Daniel’s significance extends beyond a single sentence. For years, Ontario judges have been warning about deteriorating conditions in provincial detention centres. The striking feature of the recent cases is that judicial criticism is no longer merely rhetorical.

It is beginning to have concrete consequences at sentencing. If overcrowding, triple-bunking and staffing shortages systematically deprive accused persons of necessities and meaningful access to rehabilitation, courts will increasingly have to confront what those conditions mean for the punishment ultimately imposed.

There is an uncomfortable irony here. The state asks accused persons to obey the law while they are detained, even though they are presumed innocent until conviction. Later, after conviction, the state asks judges to impose proportionate punishment. If the state has already subjected an accused to conditions harsher than the ordinary deprivation of liberty contemplated by a custodial sentence, the court cannot simply pretend those days did not happen.

That is the lesson of Daniel. The decision does not make jail conditions a substitute for sentencing principles. Nor does it create a tariff that allows every lockdown day to be converted into a set number of days off a sentence.

Instead, it recognizes something more fundamental: the conditions under which liberty is taken away are relevant to determining what a just deprivation of liberty ultimately requires. That places responsibility not only on sentencing judges but also on the institutions responsible for running Ontario’s jails. If repeated judicial condemnation produces no meaningful improvement, sentencing courts may increasingly become the place where the consequences of that institutional failure are felt.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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