Supreme Court clarifies rules for sentencing credits

The Supreme Court of Canada has ruled that even though sentences can take rehabilitative programming into account, enhanced sentencing credits should be granted for time spent in a mental health facility.

In the 9-0 decision, the Court also clarified what counts as “wrongful conduct” when denying sentencing credits, but declined to offer a comprehensive definition of said conduct.

The case centres around a man known as JW, who is Indigenous and cognitively impaired, and the sexual assault of a worker at his group home in May 2018. While in pre-trial custody, he dismissed his counsel on three separate occasions and backed out of three plea deals. In 2020, he was sent for a mental health assessment and found unfit to stand trial after being diagnosed with disorganized schizophrenia.

By 2022, he was found fit to stand trial and pleaded guilty, where he was sentenced to nine years, partly because of the need for access to rehabilitative programming. The sentencing judge, however, declined to give JW credit for time spent at the mental health facility.

The Ontario Court of Appeal dismissed the appeal, but corrected a calculation error for time spent in pre-trial custody in detention centres. The Supreme Court of Canada partially granted the appeal by applying the enhanced credit for the time spent at the mental health facility.

“While I would defer to the sentencing judge’s decision to impose a 9-year custodial term, I conclude that the sentencing judge erred in denying to the appellant, on the basis of ‘wrongful conduct,’ enhanced credit for time spent confined in a mental health facility,” Justice Malcolm Rowe wrote for the Court.

The sentencing judge concluded that dismissing counsel and backing out of plea deals counted as “wrongful conduct” under the framework established in R v. Summers, which made JW ineligible for the sentencing discount. The Supreme Court disagreed, finding the conduct was tied to his mental health condition.

“Where such acts are done with an intention to frustrate the proper operation of the system of criminal justice, they would constitute wrongful conduct. Attempts to ‘game’ the system by stalling proceedings should not be condoned,” Rowe wrote, emphasis his own.

To that end, he felt there was sufficient basis to grant Summers credit for the time spent in the mental health facility, adding that “while conditions in a mental health facility will be different than those in a remand centre, both constitute forms of imprisonment.”

Kyla Lee, of Acumen Law in Vancouver and past chair of the CBA’s criminal justice section, says there was good news in the decision, particularly because the Court offered clearer guidance on the standard of review for whether to apply for enhanced credit.

“It’s helpful that it’s the same stringent standard that it is to interfere with a sentencing judge’s decision, because the vast majority of the time, I think judges are giving the enhanced credit. I also like how they have taken the analysis for the misconduct and separated the conduct aimed at frustrating the system, and making it intentional."

She says there are a lot of people who end up in this situation, detained in pre-trial custody and acting out because of the same issues that put them into pre-trial custody in the first place—mental health and addictions.

“It makes a fairer playing ground for those people.”

It’s important that the same credit is applied for time spent in a mental health facility as in other pre-trial detention facilities. Otherwise, people would be punished for having a mental illness or not being fit to stand trial.

The decision also recognizes that people shouldn’t get less credit because they happened to be detained in one facility over another.

“It’s not really a fair way to treat people, because they don’t have a say in a lot of what Corrections does with them,” Lee says.

“That thread is reflected in the analysis of a high standard for programming, which would warrant situating a sentence on the higher end of the range.”

Michael Spratt, partner with AGP LLP in Ottawa, says there may be self-inflicted conduct that prolongs pre-sentence custody, but when someone is only getting credit for earned remission, it’s not gaming the system to actually shorten their sentence.

“It puts you in the same place that you would have been if you pleaded guilty on day one,” he says.

“The type of wrongful conduct has to be, by definition and first principle and reading between the lines in this decision, conduct that would disentitle you or make it unlikely you would get early parole. You can imagine conduct like extreme violence or misconduct while you’re awaiting trial—the worst kind of conduct.”

Spratt also notes that the Court was right to say that the availability or lack of treatment and programming shouldn’t push a sentence outside of the appropriate range. However, it failed to recognize the reality on the ground. Through deliberate choices at the federal and provincial levels, treatment is sometimes unavailable, underfunded, and underprioritized.

“The Court doesn’t spend any time grappling with how reality intersects with legal principle. The effect can be that sentences are going to be longer than they need to be because the government doesn’t fund appropriate treatment, counselling, and programming in custody.”

He says the decision doesn’t recognize that sentences might be months or years longer than they need to be because of these policy choices.

“It was disappointing to see the Court not grapple with the intersection of underfunded jail conditions and the reality of the criminal justice system when it comes to the lack of funding for appropriate treatment, counselling, and reintegration services,” Spratt says, adding there is already an over-reliance on using jail to deal with mental health and addiction issues.

Senator Kim Pate, the former executive director of the Canadian Federation of Elizabeth Fry Societies, says while courts may believe there is merit in fitting sentencing to rehabilitative programming, the reality in Canada’s correctional services is often different.

She points to repeated reports by the federal correctional investigator that Indigenous offenders in particular are more likely to be classified as needing higher security, and more likely to be in segregation or “structured intervention units.”

“We know that means less access to programming and services,” Pate says.

“Without an understanding of that, a court might legitimately, as they did here [in the lower court decisions], think providing more time for Corrections to provide more access is a more laudable goal. But when you know the system and have worked in and around it, the fear is that it becomes yet another reason or potential rationale to keep someone at a higher security level for longer.”

She adds: “Instead of having a right of access to programming, these inmates have to earn their way out of maximum security or segregation before they can access that programming.”

This lack of access to programming goes against the rehabilitative notion of prisons to prevent people from being a risk to public safety in the future. Pate says if a person doesn’t have the mental capacity to access those services, they probably shouldn’t be in the prison system.

Instead, she suggests other secured institutional environments would be better suited for someone with these kinds of cognitive or intellectual disabilities, which could better provide the necessary supports.

Lee thinks the Court would likely have been reluctant to consider access to programming because, in the facts of the case, both Crown and defence counsel submitted evidence about the types of programs that would be available to support their positions on sentencing.

“Because both counsel were putting this before the judge and the judge took it into account, it’s a lot more for the Supreme Court of Canada to engage in an analysis of the lack of availability of things without a proper evidentiary foundation,” she says.

“They did remark that it would be improper for sentencing judges, without a proper evidentiary foundation, to get into this analysis of what offenders may be able to access, and I think that is an acknowledgement on their part that…this was not really the right case to get into the nitty-gritty of that.”