Supreme Court of Canada gives sentencing guidance on ‘enhanced’ credit for pre-sentence custody

Law360 Canada (May 23, 2025, 5:51 PM EDT) -- The Supreme Court of Canada has granted a convicted sex offender enhanced sentencing credit (1.5 to 1) for the time he spent in presentence custody at a mental health facility in a judgment that also greenlights judges to consider as a factor in determining a fit sentence the time an offender is expected to need to complete institutional rehabilitative programs and treatment, when such measures are adequately supported by the evidence.

Ruling 9-0 on May 23, 2025, Supreme Court of Canada Justice Malcolm Rowe allowed in part the by-leave sentence appeal of J.W., holding that the Ontario Superior Court judge below erred in sentencing in 2022 when she credited J.W. with only one day for each of the 607 days he spent in presentence custody at Providence Care Hospital (time in custody that did not go toward his eligibility for parole or early release): R. v. J.W., 2025 SCC 16.

The top court went on to vary J.W.’s sentence to give him enhanced credit for his presentence custody at the mental health centre at the rate of 1.5 days for each day he spent confined there. This amounts to 304 additional days deducted from his nine-year sentence, on top of the credit the Ontario Court of Appeal gave below when it corrected a calculation error made by the sentencing judge.

(The Criminal Code allows sentencing judges to grant one day of credit for each day an offender has been detained in custody before trial and sentencing, and may also grant “enhanced” credit in some circumstances, at the rate of 1.5 days for each day in custody.)

However, Justice Rowe dismissed J.W.’s appeal from the nine-year custodial sentence imposed by the sentencing judge, holding that she did not err in principle and did not extend an otherwise fit sentence when she considered J.W.’s anticipated time to complete sexual offender programming.

Justice Rowe’s judgment clarifies several legal issues, including that:

• The appellate standard of review when assessing a sentencing judge’s determination to award or deny enhanced credit is assessed on the same standard as for sentencing overall. “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,” Justice Rowe explained. “Absent such an error, a sentencing judge’s determination as to enhanced credit is entitled to deference,” he wrote. The judge added “this deference is subject, however, to the sentence as a whole being found demonstrably unfit. ... In such circumstances, an appellate court may intervene and vary the sentence, including the quantum of enhanced credit.”
• When there is a sufficient evidentiary basis on the availability and accessibility of institutional programming, it is not an error in principle for a sentencing judge to consider an offender’s anticipated time to complete it as a factor in the individualized sentencing process, provided that the resulting sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender.
• Elaborating on what could amount to “wrongful conduct” on the part of an offender that could disqualify them from enhanced presentence custody credit under s. 719(3.1) of the Criminal Code, as contemplated by the Supreme Court in R. v. Summers, 2014 SCC 26, “it is not sufficient that the offender has acted so as to delay proceedings; the acts must have been done with an intention to frustrate the proper operation of the system of criminal justice,” Justice Rowe held.

(Summers explained that, where long periods of presentence detention are attributable to the wrongful conduct of the offender, the offender will likely not be granted enhanced credit.)

The top court declined to provide a comprehensive definition of such “wrongful conduct.”

However, Justice Rowe held that the sentencing judge erred in the circumstances of this case by denying enhanced credit to J.W., on the basis of what she saw as his “wrongful conduct” in delaying matters by frequently changing his mind and resiling from guilty pleas to the charges of sexual assault, unlawful confinement and threatening to cause death, and by his decisions to fire several defence counsel.

“Giving ‘wrongful conduct’ too broad a scope risks undermining the principles of proportionality and parity,” Justice Rowe advised. “Where an offender has acted so as to delay proceedings, this in and of itself is not sufficient to constitute wrongful conduct, unless such acts are done with an intention to frustrate the proper operation of the system of criminal justice,” he held.

In J.W.’s case, while the sentencing judge accurately observed that the man’s conduct while in custody led to delays in the court proceedings, his “conduct prior to being found unfit was a consequence, entirely or to a significant degree, of his mental and cognitive state, and did not constitute wrongful conduct,” Justice Rowe ruled.

In 2018, the then-24-year-old Indigenous man, who had no significant prior criminal record, repeatedly and violently assaulted a residential support worker in the group home where he lived. He was remanded to a detention centre. In August 2020, he was admitted to the mental health facility and was found unfit to stand trial the following January. After being found fit to stand trial in May 2021, he remained at the mental health facility. Finally, he pleaded guilty to the offences and was sentenced on April 14, 2022.

J.W. was diagnosed with a chronic schizophrenic illness and developmental and intellectual disabilities of moderate severity. He was also assessed as having behavioural features consistent with attention deficit hyperactivity disorder (ADHD) and fetal alcohol spectrum disorder (FASD). He spent his early years with his mother and siblings on the reserve lands of the Attawapiskat First Nation and grew up in impoverished conditions. He began using drugs and alcohol around the age of seven, when he was also removed to a foster home. He told the Gladue reporter that he remembered being sexually assaulted and physically abused as a child.

J.W.’s counsel, Erin Dann and Paul Socka of Toronto’s Embry Dann LLP, said in a statement that the sentencing of offenders with severe mental illness or cognitive impairment “is one of the most difficult and precarious exercises in the criminal law. It is always important to ensure stereotypes and presumptions of dangerousness do not infect the sentencing process and turn the criminal justice system into either a social service or preventative detention.”

However, “the Supreme Court’s decision thankfully affirms that a particular offender’s mental illness or cognitive impairments alone cannot justify any sentence increase,” J.W.’s co-counsel said. “To the extent that anticipated time for the offender to complete institutional programming can be a factor to consider in crafting a sentence, the court has set a high evidence-based threshold for doing so.”

Moreover, “programming time can never justify a sentence outside of the range dictated by the gravity of the offence and the blameworthiness of the offender,” the lawyers emphasized. “Programming time estimates must also be informed by case-specific evidence.”

Dann and Socka added that Justice Rowe’s reasons “further indicate that the evidence must show that programming is actually available and accessible for the particular offender, so as to ensure they do not receive a longer sentence for reasons unrelated to the offence or their blameworthiness.”

Counsel said this exercise will be particularly important for Indigenous offenders, offenders with cognitive impairments, and those with severe mental illness, who may face special challenges in accessing and completing institutional programming.

Dann and Socka emphasized that the top court set “a very high bar before a sentence can be lengthened due to procedural delays, requiring the Crown to prove that the delays were created with an intention to frustrate the proper operation of the criminal justice system.”

Although the court was silent on the requisite standard of proof, “there is a good argument that the beyond-a-reasonable-doubt standard used to prove aggravating factors would similarly apply,” Socka and Dann suggested.

A spokesperson for the Ontario Ministry of the Attorney General said, “We are carefully reviewing the decision and have no further comment.”‎

The appeal attracted six interveners.

Anita Szigeti, an expert in the area of mental disorder and the law who, with Sarah Rankin and Shira Brass, represented the intervener Empowerment Council, told Law360 Canada, “The court has now made it crystal clear that not any conduct that results in procedural delays can be deemed ‘wrongful conduct.’”

She advised, “Special care must be taken to account for the role that mental health issues play in any decision made by an accused, understanding their vulnerabilities in many spheres, including establishing or maintaining their relationship with defence counsel. ... In our submissions, the Empowerment Council had emphasized the stressors such prosecutions place on vulnerable individuals, inevitably exacerbating their already tenuous mental state.”

Szigeti said her client “welcomes this court’s strong acknowledgement and affirmation of the reality that psychiatric detention robs people of their liberty and constitutes a ‘form of imprisonment.’ As the court holds [at para. 111], ‘while conditions in a mental health facility will be different than those in a remand centre, both constitute forms of imprisonment.’”

Frank Addario of Toronto’s Addario Law Group LLP, who with Wesley Dutcher-Walls represented the intervener Canadian Civil Liberties Association, told Law360 Canada the decision will contribute to better sentencing in that “the court makes it clear that trial judges cannot give longer sentences based on delayed time to treatment of an offender, unless there is evidence about the availability and accessibility of programs. The judge can’t act on bland assertions about treatment in institutions.”

Chris Sewrattan of Toronto’s Sewrattan Criminal Lawyers, who with Sweta Tejpal represented the intervener Criminal Lawyers Association (Ontario), noted the ruling “is relevant to criminal lawyers because it makes clear that an offender’s ‘wrongful conduct’ that could render enhanced credit inappropriate is not simply conduct that delays the proceeding. The offender must intend to frustrate the proper operation of the system of criminal justice. That is a high bar for the Crown to meet.”

He said J.W. further makes clear that the Crown must lay an evidentiary foundation if it wants to increase a sentence to accommodate treatment and programming aimed at rehabilitation. “Criminal defence lawyers will welcome this opportunity to test the Crown’s, or judge’s, understanding of treatment opportunities and resourcing,” Sewrattan predicted.

Photo of Justice Malcolm Rowe: Andrew Balfour Photography, SCC Collection

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