R. v. J.W., 2025 SCC 16

SUPREME COURT OF CANADA
Citation: R. v. J.W., 2025 SCC 16			Appeal Heard: December 3, 2024 Judgment Rendered: May 23, 2025 Docket: 40956
Between: J.W. Appellant   and   His Majesty The King Respondent   - and -   Attorney General of Alberta, Queen’s Prison Law Clinic, Criminal Lawyers’ Association (Ontario), Empowerment Council, Canadian Civil Liberties Association and Aboriginal Legal Services Inc. Interveners   Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
Reasons for Judgment: (paras. 1 to 112)	Rowe J. (Wagner C.J. and Karakatsanis, Côté, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ. concurring)

 

 

 

 

 

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

 

 

J.W.                                                                                                                  Appellant

v.

His Majesty The King                                                                                 Respondent

and

Attorney General of Alberta,

Queen’s Prison Law Clinic,

Criminal Lawyers’ Association (Ontario),

Empowerment Council,

Canadian Civil Liberties Association and

Aboriginal Legal Services Inc.                                                                    Interveners

Indexed as: R. v. J.W.

2025 SCC 16

File No.: 40956.

2024: December 3; 2025: May 23.

Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.

on appeal from the court of appeal for ontario

                    Criminal law — Sentencing — Considerations — Correctional programming — Offender pleading guilty to multiple offences following violent sexual assault — Offender diagnosed with chronic schizophrenic illness and moderate developmental and intellectual disabilities — Sentencing judge imposing term of imprisonment and concluding that protection of society required sufficient time in federal institution for offender to complete institutional sexual offender programming prior to release — Whether sentencing judge erred in having regard to treatment time as factor when determining fit sentence for offender.

                    Criminal law — Sentencing — Considerations — Credit for pre-sentence detention — Offender pleading guilty to multiple offences following sexual assault and detained in detention centres and mental health facility — Offender causing delay prior to sentencing by changing mind about guilty plea and by frequently discharging counsel — Offender diagnosed with chronic schizophrenic illness and moderate developmental and intellectual disabilities — Whether delay caused by offender was wrongful conduct disqualifying him from obtaining credit for pre-sentence detention.

                    On the night of May 26 to 27, 2018, W repeatedly and violently sexually assaulted the complainant, a residential support worker in the group home in which W resided. Following his arrest, W was remanded to a detention centre. In November 2018, W pled guilty to sexual assault, threatening to cause death, and unlawful confinement, but his guilty plea was struck in March 2019 and his counsel removed from the record. A second plea and sentencing date were scheduled, but W resiled from the proposed resolution. A further resolution date was set, but W discharged his second counsel. In August 2020, a fitness assessment was ordered and W was admitted to a mental health facility, and in January 2021, W was found unfit to stand trial. W later discharged his third counsel. After being found fit to stand trial in May 2021, W remained at the mental health facility. His fourth counsel successfully requested a not criminally responsible assessment, but the assessment ultimately did not support such a finding. W finally pled guilty to the offences and was sentenced on April 14, 2022. At the time of sentencing, W was 28 years old and had no significant criminal record. He was diagnosed with a chronic schizophrenic illness, and has developmental and intellectual disabilities of moderate severity.

                    The sentencing judge sentenced W to 9 years’ imprisonment. She concluded that a sentence at a lower range could meet the objectives of denunciation and general deterrence, but she was not satisfied it would work to protect society. She stated that W needed sufficient time in a federal institution to complete sexual offender programming. Regarding W’s request for enhanced credit for pre‑sentence detention, the sentencing judge declined to grant credit for the time spent at the mental health facility. She concluded that neither the quantitative nor qualitative rationales for granting enhanced credit, as set out by the Court in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, had been made out for the time spent at the mental health facility. In her view, W frequently changing his mind and changing his lawyers disqualified him from being granted enhanced credit on the quantitative basis. She also found that the conditions of detention at the mental health facility were favourable for W, and therefore there was no qualitative basis for granting enhanced credit.

                    The Court of Appeal dismissed W’s appeal, save for correcting a calculation error in relation to W’s period of custody in detention centers. The court held that the sentencing judge had properly considered the anticipated treatment time as one of many factors when imposing a proportional sentence within the established range. With respect to enhanced credit, the court held that it was open to the sentencing judge to conclude that W’s pre‑sentencing conduct was wrongful, and that W’s conditions of detention at the mental health facility compared favourably to those in a correctional facility.

                    Held: The appeal should be allowed in part and the sentence varied to give W enhanced credit for the time that he was detained at the mental health facility.

                    When there is a sufficient evidentiary basis on the availability and accessibility of institutional programming, it is not an error in principle for the sentencing judge to consider an offender’s anticipated time to complete it as a factor in the individualized sentencing process, provided that the sentence arrived at is proportionate to the gravity of the offence and the degree of responsibility of the offender. As for the meaning of “wrongful conduct” on the part of an offender that could render enhanced credit inappropriate, as contemplated in Summers, 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. In the instant case, deference should be given to the sentencing judge’s decision to impose a 9‑year custodial term; however, the sentencing judge erred in denying to W, on the basis of wrongful conduct, enhanced credit for time spent confined in a mental health facility.

                    The fundamental purpose of sentencing includes protecting society. The objectives of sentencing, one of which is rehabilitating offenders, are supportive of that purpose. No one sentencing objective trumps the others, and whatever weight a judge accords to the sentencing objectives, the resulting sentence must respect the fundamental principle of proportionality. While a sentence must not extend beyond what is proportionate merely to protect society, the protection of society is a material factor in fixing an appropriate sentence. The circumstances unique to each case will produce a range of acceptable outcomes within which a fit sentence can be fixed. In determining a sentence within this range, a judge may have regard to considerations such as treatment and programming aimed at rehabilitation. Correctional officials, not the sentencing judge, determine what programming is offered to a given inmate, and as such, courts should only consider program availability, treatment options, or time to completion when such submissions are supported by an adequate evidentiary record.

                    With respect to enhanced credit for pre-sentence detention, the Court in Summers explained that, where long periods of pre-sentence detention are attributable to the wrongful conduct of the offender, the offender will likely not be granted enhanced credit. In deciding what constitutes wrongful conduct, the purpose of s. 719(3.1) of the Code, which imposes a cap on enhanced credit, must be borne in mind. This provision aimed to remove any incentive for an accused to drag out time in remand custody, and to provide transparency so that the public would know what the fit sentence was, how much credit had been given, and why. What constitutes wrongful conduct also needs to be consistent with the purpose, objectives and principles of sentencing. Giving “wrongful conduct” too broad a scope risks undermining the principles of proportionality and parity. 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. The determination of whether there was wrongful conduct is to be made on a case‑by‑case basis, and the onus is on the Crown to show that the offender has engaged in wrongful conduct.

                    In sentence appeals, the ultimate question is whether the sentence is fit. An appellate court may only vary a sentence if the sentence is demonstrably unfit or the sentencing judge made an error in principle that had an impact on the sentence. In the instant case, the sentencing judge’s reasons disclose no error in principle. The sentencing judge did not extend an otherwise fit sentence when she considered W’s anticipated time to complete institutional programming treatment. She articulated why a sentence in the lower range failed to address relevant sentencing purposes and objectives. As W’s mental capacity and rehabilitative potential were live issues at sentencing, the sentencing judge did not err in considering such evidence when crafting a sentence within the appropriate range. In addition, considering the egregious circumstances of the sexual assault, the imposed sentence of a 9‑year custodial term cannot be said to be demonstrably unfit. The appellate standard of review for the determination of enhanced credit is not distinct from that for sentencing overall; it is an application of that standard. In the instant case, while the sentencing judge accurately observed that W’s conduct led to delays in his proceedings, she erred by failing to consider whether W’s actions intentionally frustrated the proper operation of the system of criminal justice. W’s 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. Accordingly, the sentence should be varied to give W enhanced credit for the days that he was detained at the mental health facility. Given that there is a sufficient basis to grant enhanced credit based on the quantitative rationale, it is unnecessary to address whether the qualitative rationale applies in the instant case.

Cases Cited

                    Considered: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575; R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455; R. v. Codina, 2019 ONCA 986; referred to: R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. Muise (1994), 94 C.C.C. (3d) 119; R. v. Hills, 2023 SCC 2; R. v. Hamilton (2004), 72 O.R. (3d) 1; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309; R. v. Hilbach, 2023 SCC 3; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496; R. v. M. (C.A.), [1996] 1 S.C.R. 500; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Canada (Transportation Safety Board) v. Carroll-Byrne, 2022 SCC 48; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; R. v. Legere (1995), 22 O.R. (3d) 89; R. v. Veen (No. 2) (1988), 33 A. Crim. R. 230; R. v. Spilman, 2018 ONCA 551, 362 C.C.C. (3d) 415; R. v. Keefe (1978), 44 C.C.C. (2d) 193; R. v. Knoblauch, 2000 SCC 58, [2000] 2 S.C.R. 780; R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138; Hatchwell v. The Queen, [1976] 1 S.C.R. 39; R. v. Pelly, 2021 SKCA 50, 403 C.C.C. (3d) 127; R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936; R. v. J.K.F. (2005), 195 O.A.C. 141; R. v. Snelgrove, 2005 BCCA 51, 207 B.C.A.C. 227; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165; R. v. Rezaie (1996), 31 O.R. (3d) 713; R. v. Carvery, 2014 SCC 27, [2014] 1 S.C.R. 605; R. v. Safarzadeh‑Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180; R. v. Stonefish, 2012 MBCA 116, 288 Man. R. (2d) 103; R. v. Hussain, 2018 ONCA 147, 140 O.R. (3d) 593; R. v. McBeath, 2014 BCCA 305, 341 C.C.C. (3d) 531; R. v. Boutilier, 2018 NSCA 65, 30 M.V.R. (7th) 31; R. v. Morris, 2013 ONCA 223, 305 O.A.C. 47; R. v. Campbell, 2017 ONSC 26; R. v. Bonneteau, 2016 MBCA 72, 330 Man. R. (2d) 139; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. Askov, [1990] 2 S.C.R. 1199; R. v. Codina #1, 2017 ONSC 7162, 56 Imm. L.R. (4th) 43; R. v. Codina, 2017 ONSC 7315, 408 C.R.R. (2d) 1; R. v. Codina #3, 2017 ONSC 7561; R. v. Codina #6, 2017 ONSC 7648; R. v. Codina, 2017 ONSC 4886; R. v. Codina #7, 2018 ONSC 1096, 57 Imm. L.R. (4th) 175; R. v. Codina #8, 2018 ONSC 2180; R. v. Assiniboine, 2016 MBCA 44, 326 Man. R. (2d) 282; R. v. Slack, 2015 ONCA 94, 125 O.R. (3d) 60.

Statutes and Regulations Cited

Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, S.C. 2018, c. 29, s. 66.

Canadian Charter of Rights and Freedoms, s. 11(b).

Corrections and Conditional Release Act, S.C. 1992, c. 20.

Criminal Code, R.S.C. 1985, c. C‑46, ss. 271, 264.1(1)(a), 279(2), 672.29, 687, Part XXII, 718 to 718.21, 719(3) [rep. 2009, c. 29, s. 3], (3.1) [rep. 2018, c. 21, s. 66], Part XXIV.

Truth in Sentencing Act, S.C. 2009, c. 29.

Authors Cited

Ruby, Clayton C. Sentencing, 10th ed., Toronto: LexisNexis, 2020.

                    APPEAL from a judgment of the Ontario Court of Appeal (Hourigan, Brown and Monahan JJ.A.), 2023 ONCA 552, [2023] O.J. No. 3688 (Lexis), 2023 CarswellOnt 12749 (WL), setting aside a decision of Aitken J., 2022 ONSC 2274, [2022] O.J. No. 1805 (Lexis), 2022 CarswellOnt 5121 (WL). Appeal allowed in part.

                    Erin Dann and Paul Socka, for the appellant.

                    Stacey D. Young and Brent Kettles, for the respondent.

                    Danielle Green, for the intervener Attorney General of Alberta.

                    Carter Martell, for the intervener Queen’s Prison Law Clinic.

                    Chris Sewrattan and Sweta Tejpal, for the intervener Criminal Lawyers’ Association (Ontario).

                    Anita Szigeti, Sarah Rankin and Shira Brass, for the intervener Empowerment Council.

                    Frank Addario and Wesley Dutcher-Walls, for the intervener Canadian Civil Liberties Association.

                    Caitlyn E. Kasper and Emily Hill, for the intervener Aboriginal Legal Services Inc.

                   The judgment of the Court was delivered by

                   Rowe J. —

I.               Overview

[1]                              In this appeal, the Court is called on to provide guidance as to how programming and treatment aimed at rehabilitating an offender can properly be considered in arriving at a fit sentence. When there is a sufficient evidentiary basis on the availability and accessibility of institutional programming, it is not an error in principle to consider an offender’s anticipated time to complete it as a factor in the individualized sentencing process, provided that the sentence arrived at is proportionate to the gravity of the offence and the degree of responsibility of the offender. In assessing the fitness of sentences, we should bear in mind that proportionality often gives rise to a range of sentences, rather than a single “correct” result (R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 48, citing R. v. Muise (1994), 94 C.C.C. (3d) 119 (N.S.C.A.), at pp. 123-24; see also R. v. Hills, 2023 SCC 2, at para. 64; R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at para. 85; C. C. Ruby, Sentencing (10th ed. 2020), at §2.5).

[2]                              The parties also ask this Court to clarify the meaning of “wrongful conduct” as contemplated in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 48, in particular whether an offender’s pre-trial or pre-sentence delays can constitute wrongful conduct so as to disqualify the offender from pre-sentence custody credit under s. 719(3.1) of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”). I will address this question by reference to the circumstances of this case, without seeking to provide a comprehensive definition of such “wrongful conduct”.

[3]                              I would allow the appeal in part. 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.

II.            Factual Background

[4]                              The appellant pleaded guilty to the following offences: sexual assault, contrary to s. 271 of the Code, threatening to cause death, contrary to s. 264.1(1)(a), and unlawful confinement, contrary to s. 279(2).

A.           The Offences

[5]                              On the night of May 26 to 27, 2018, the appellant repeatedly sexually assaulted the complainant, who was working as a residential support worker in the group home in which the appellant resided.

[6]                              The complainant was the sole worker on duty that night. The incident began by the appellant calling the complainant up to his bedroom, where he proceeded to sexually assault her. The complainant managed to briefly escape into the living room, but the appellant chased her, threw her up against the wall, and then dragged her back to his bedroom where the sexual assault continued.

[7]                              During the assault, the appellant forced unprotected vaginal intercourse on the complainant and ejaculated on her. The appellant also threatened the complainant, saying that he was going to kill her and dump her body in a lake. He took her cellphone, so that she could not call for help. The appellant forced the complainant to make a recording saying that she had consented to the sexual activity.

[8]                              When the appellant was distracted, the complainant managed to text “911” to her supervisor, who contacted the police.

[9]                              The complainant is an Indigenous woman who was studying to be a social service worker. The sentencing judge found the offences had a significant and enduring impact on her health and her career. In her victim impact statement, the complainant described how the assault left her “terrified” to work in her chosen field, filled her with a sense of hopelessness, and strained her relationship with friends and family.

B.            Pre-Sentencing Procedural History

[10]                          The appellant was detained between his arrest on May 27, 2018 and his sentencing on April 14, 2022.

[11]                          Following his arrest, the appellant was remanded to a detention centre. In November 2018, the appellant pled guilty to the offences and a Gladue report was ordered. However, the appellant denied committing the offences in his Gladue report. In March 2019, the appellant’s guilty plea was struck and his first counsel was removed from the record.

[12]                          A second plea and sentencing date was scheduled in early September 2019, but the appellant later resiled from the proposed resolution. A further resolution date was set in December 2019, but this resolution also did not proceed as the appellant later discharged his second counsel.

[13]                          In August 2020, the appellant’s third counsel raised concerns about the appellant’s fitness to stand trial. A fitness assessment was ordered by the presiding judge and conducted by a forensic psychiatrist, who recommended that the appellant be admitted to the hospital for a 30-day assessment. This assessment was ordered in September 2020. The appellant was admitted to a mental health facility, Providence Care Hospital (“Providence”), where he was assessed by a psychiatrist and diagnosed with disorganized schizophrenia.

[14]                          In January 2021, the appellant was found unfit to stand trial. He returned to Providence under a treatment order. After being found fit to stand trial in May 2021, a “keep fit” order was made under s. 672.29 of the Code and the appellant remained at Providence.

[15]                          In March 2021, the appellant discharged his third counsel. In July 2021, the appellant’s fourth counsel successfully requested a not criminally responsible (“NCR”) assessment; this was completed in November 2021. The report did not support a finding of NCR.

[16]                          On November 26, 2021, the appellant pled guilty to the three offences noted above. He remained detained at Providence while he awaited sentencing. The appellant’s sentencing hearing was held on March 8, 2022; he was sentenced on April 14, 2022.

[17]                          Prior to sentencing, the appellant had spent 812 days in detention centres and 607 days at Providence, a total of 1,419 days.

C.            Background of the Offender

[18]                          The appellant is a member of the Attawapiskat First Nation, a community of about 2,000 in Northern Ontario. At the time of sentencing, the appellant was 28 years old and had no significant criminal record.

[19]                          The appellant spent the early years of his childhood with his mother and siblings on the reserve lands of the Attawapiskat First Nation. He grew up in impoverished conditions. He began using drugs and alcohol around the age of seven. The appellant also informed the author of the Gladue report that he recalled being sexually assaulted and physically abused as a child.

[20]                          The appellant was placed in a foster home when he was around the age of seven. As a child, he was documented as having behavioural and emotional issues including intrusive behaviour with others, difficulty developing appropriate social skills, inappropriate focus on sexual issues, and physical aggression. These problematic behaviours continued to be noted throughout the appellant’s time in group homes during his youth.

[21]                          School was difficult for the appellant. The pre-sentence report indicates that the appellant suffered from delayed cognitive development. It is unclear what grade the appellant finished, but he did not complete high school. During his 30-day assessment at Providence, the appellant was diagnosed with a chronic schizophrenic illness. In addition, the diagnosing psychiatrist noted developmental and intellectual disabilities of moderate severity; his report also refers to behavioural features consistent with attention deficit hyperactivity disorder and fetal alcohol spectrum disorder.

III.         Proceedings Below

A.           Reasons for Sentence, Ontario Superior Court of Justice, 2022 ONSC 2274 (Aitken J.)

[22]                          At the sentencing hearing, both parties agreed that the appellant’s offences “call for a lengthy period of incarceration” (para. 14). However, the parties disagreed on the appropriate sentencing range and the amount of pre-sentence credit. Throughout these reasons, I will refer to pre-sentence credit, when granted at a rate greater than 1:1, as “enhanced credit”.

[23]                          The Crown sought a sentence of 8 to 10 years’ imprisonment. While the Crown agreed that the appellant’s time at detention centres should be credited at a rate of 1.5:1, the Crown’s position was that the appellant should not receive any enhanced credit for his time at Providence. The Crown’s proposed sentence would have required the appellant to serve his sentence in a federal institution.

[24]                          The Crown did not refer the sentencing judge to cases that supported 8 to 10 years as the appropriate range for offences in similar circumstances. This may well be a consequence of the egregious circumstances related to the offence that make it somewhat exceptional. Ordinarily, a sentencing judge will call on counsel to refer to such decisions as part of their submissions as to sentence.

[25]                          The appellant sought a sentence of 7.5 years’ imprisonment and enhanced credit at a rate of 1.5:1 for his time both at the detention centres and at Providence. This would have resulted in a sentence that could be served in a provincial institution.

[26]                          The sentencing judge, Aitken J., considered the violent nature of the sexual assault and related offences, the vulnerability of the victim who is an Indigenous woman, the harmful impact on her, and the appellant’s victimization of someone who was expected to care for him; all these were serious aggravating circumstances.

[27]                          Turning to the mitigating circumstances, the judge stated that the appellant’s guilty plea was not significantly mitigating given his dilatory conduct throughout the proceedings and his lack of remorse. As mitigating circumstances, the judge referred to the appellant’s cognitive challenges, some of which arose from systemic considerations that shaped the life of the appellant as an Indigenous person.

[28]                          The court also received information from the appellant’s treatment professionals who recommended continuing forensic mental health care and completion of sexual offender recidivism prevention programming.

[29]                          Aitken J. concluded that a 9-year custodial term was a fit sentence. She stated:

As an Aboriginal offender with significant challenges resulting in part from his early childhood years in such an impoverished and abusive environment (the legacy of intergenerational trauma), his level of moral culpability is reduced from what it would otherwise be. I would therefore not accede to the request of Crown counsel to impose a sentence of 10 years, at the high end of the range. One might conclude that a sentence at the lower range of seven to eight years might be more appropriate, as urged by Defence counsel. Although I am satisfied that the lower range of sentence could meet the objectives of denunciation and general deterrence in this case, I am not satisfied that it would ultimately work to protect society and keep women in the community safe. In that regard, I am particularly concerned about the safety of vulnerable Aboriginal women and women living or working in vulnerable situations.

 

There is the real concern that, until Mr. W. obtains targeted treatment in an institution, he will continue to pose a risk of sexually re-offending when released into the community. Mr. W. will need sufficient time in a federal institution to complete needed programming prior to his release. It is likely that Mr. W.’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. [paras. 41-42]

[30]                          Regarding the appellant’s request for enhanced credit, Aitken J. declined to include the time spent at Providence. She concluded that neither the quantitative nor qualitative rationales for granting enhanced credit, as set out by this Court in Summers, had been made out for the time spent at Providence. The appellant’s lengthy time in pre-sentence custody “was due in great measure to his frequently changing his mind and changing his lawyers”; this disqualified him from being granted enhanced credit on the quantitative basis (para. 46). Aitken J. also found that the conditions of detention at Providence were favourable for the appellant; his mental health and behaviour improved during this time. Therefore, she concluded, there was no qualitative basis for granting enhanced credit.

[31]                          Aitken J. sentenced the appellant to 9 years’ imprisonment, less an enhanced credit of 1,792 days, which was made up of the days the appellant spent in detention centres, credited at a rate of 1.5:1, and the days he spent at Providence, credited at a rate of 1:1. Overall, this left 4 years to be served in a federal institution.

B.            Ontario Court of Appeal, 2023 ONCA 552 (Hourigan, Brown and Monahan JJ.A.)

[32]                          The Court of Appeal dismissed the appeal, save for correcting a calculation error. The parties agreed that the sentencing judge had miscalculated the appellant’s period of custody in detention centres by 22 days; this led to an additional 33 days of enhanced credit, applied at a rate of 1.5:1.

[33]                          Hourigan J.A., for the panel, held that no basis had been shown to interfere with the 9-year sentence. He rejected the appellant’s submission that the sentencing judge had erred by extending his sentence in order to provide time to complete institutional sexual offender programming. Rather, he found that the sentencing judge had properly considered the anticipated treatment time as one of many factors when imposing a proportional sentence within the established range.

[34]                          With respect to enhanced credit, Hourigan J.A. deferred to the sentencing judge’s assessment. Given the evidentiary basis, it was open to the sentencing judge to conclude that that appellant’s pre-sentencing conduct was “wrongful” (para. 24). Likewise, there was an evidentiary basis to find that the appellant’s conditions of detention at Providence compared favourably to those in a correctional facility (para. 26). Hourigan J.A. concluded that the sentencing judge had properly exercised her discretion in denying the appellant enhanced credit for his time at Providence.

IV.         Issues

[35]                          This appeal raises three issues:

(1)     In determining a fit sentence, can a judge properly have regard to the time needed for the offender to complete programming or other forms of rehabilitative treatment?

(2)     Were the actions of the appellant that resulted in considerable delay a form of “wrongful conduct”, so as to disqualify him from enhanced credit?

(3)     Does the qualitative rationale for enhanced credit apply whether an offender is held in a detention centre or in a mental health facility?

V.           Analysis

[36]                          I will begin by discussing the legislative scheme for sentencing, including how the purpose, objectives and sentencing principles operate. I will also discuss the appellate standard of review. I will then discuss how treatment or programming can properly be considered in determining a fit sentence, and consider whether the sentencing judge erred in the present case. This encompasses the first issue on appeal.

[37]                          Following that, I will turn to the second and third issues on appeal, both of which centre on the sentencing judge’s assessment of the appellant’s eligibility for enhanced credit. In that section, I will discuss the development of enhanced credit and the concept of “wrongful conduct”. After, I will clarify the appellate standard of review for enhanced credit, and apply it to the present case.

A.           The Sentencing Regime

[38]                          The purpose, objectives and principles of sentencing are codified in ss. 718 to 718.2 of the Code (R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 110; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 39; Ruby, at §1.14). This Court has interpreted and applied these provisions in appellate review with a view to providing clarity for sentencing judges (R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 32; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 35).

(1)          Section 718: The Purpose and Objectives of Sentencing

[39]                          Section 718 sets out the fundamental purpose of sentencing: “. . . to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society . . .” (see Nasogaluak, at para. 39; Ipeelee, at para. 35; see also R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 122).

[40]                          This fundamental purpose is to be given effect by “imposing just sanctions” in accordance with the sentencing objectives set out in s. 718(a) to (f): denunciation, general and specific deterrence, separation of offenders (to protect society), rehabilitation, reparation, and the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community (see Nasogaluak, at para. 39; Ipeelee, at para. 35). No one sentencing objective trumps the others. Rather, the sentencing judge is to determine what weight to give to the various objectives; this is to be decided on a case-by-case basis as sentences are to be “individualized” (Nasogaluak, at para. 43; see also Hills, at para. 54).

(2)          Proportionality and Secondary Sentencing Principles

[41]                          Section 718.1 provides that the “fundamental principle” of sentencing is proportionality, i.e., that a sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. This has been recognized as a “central tenet” of sentencing (Ipeelee, at para. 36; see also Hills, at para. 56; Nasogaluak, at para. 41; R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309, at para. 12).

[42]                          Proportionality is “intimately tied” to the fundamental purpose of sentencing (Ipeelee, at para. 37), and gives “sharper focus” to the “objectives” set out in s. 718 (Nasogaluak, at para. 40). “[W]hatever weight a judge may wish to accord to the objectives listed [in s. 718], the resulting sentence must respect the fundamental principle of proportionality” (Nasogaluak, at para. 40 (emphasis in original); see also Ipeelee, at para. 37). 

[43]                          Proportionality is the “sine qua non of a just sanction” (Ipeelee, at para. 37). As LeBel J. stated in Ipeelee:

First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. . . .

 

. . .

 

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. [para. 37]

A just sanction is one that “reflects both [the foregoing] perspectives on proportionality and does not elevate one at the expense of the other” (para. 37).

[44]                          In 1995, Parliament set out a non-exhaustive list of principles in ss. 718.2 to 718.21 to assist in giving effect to proportionality (Ruby, at §2.7). These principles include “the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and the instruction to consider ‘all available sanctions other than imprisonment that are reasonable in the circumstances’, with particular attention paid to the circumstances of [A]boriginal offenders” (Nasogaluak, at para. 40). I note that although these are “secondary principles” (see, e.g., Parranto, at para. 10), a judge is required to have regard to the unique systemic or background factors that affect Indigenous offenders. This Court has been clear that s. 718(2)(e) mandates a “different method of analysis in determining a fit sentence” (Ipeelee, at para. 59). Failure to consider Gladue factors is an error in principle that would justify appellate intervention (R. v. Hilbach, 2023 SCC 3, at para. 42).

[45]                          Secondary principles complement, and are consonant with, the fundamental principle of proportionality. For example, in Friesen, this Court explained:

Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistent application of proportionality will lead to parity. Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality . . . . [para. 32]

[46]                          In sum, the fundamental purpose of sentencing is set out in s. 718. The objectives of sentencing, also set out in s. 718, are supportive of that purpose. Proportionality, as the fundamental principle of sentencing, serves to give effect to the purpose and objectives of sentencing. The secondary principles set out in ss. 718.2 to 718.12 assist in giving effect to proportionality.

B.            Standard of Review

[47]                          In sentence appeals, the ultimate question is whether the sentence is “fit” (see Code, s. 687; Parranto, at para. 14; Nasogaluak, at para. 43; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14; see also Shropshire, at paras. 45-49; Ruby, at §2.6, citing Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 533-34). While a fit sentence will be one that is proportionate, fitness is the overall measure.

[48]                          The standard of review under s. 687 of the Code is shaped by virtue of sentencing being individualized and involving the exercise of discretion (Lacasse, at para. 58; Hills, at para. 62; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 4; R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 92). Sections 718 to 718.2 confer “a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender” (Nasogaluak, at para. 43).

[49]                          Sentencing is a “profoundly subjective process” (Shropshire, at para. 46). Sentencing judges are in the best position to determine a fit sentence (Parranto, at para. 13). They have “the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record” (para. 13, citing Shropshire, at para. 46); as well, sentencing judges have “unique qualifications of experience and judgment from having served on the front lines” and “will normally preside near or within the community which has suffered the consequences of the offender’s crime” (Parranto, at para. 13, citing M. (C.A.), at para. 91).

[50]                          The standard of review for the exercise of discretion is different from that applied to questions of law, questions of fact or questions of mixed fact and law (see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235). It is a standard of review tailored to discretionary decision-making, which involves a framework of principles, relevant factors to be considered, and a range of acceptable outcomes. The standard of review for discretionary decision-making in general is set out in Canada (Transportation Safety Board) v. Carroll-Byrne, 2022 SCC 48:

A discretionary decision, such as the one contemplated by Parliament in s. 28(6)(c), is generally entitled to deference and may only be interfered with if there is a legal error (considered to be an error in principle), a palpable and overriding factual error (viewed as a material misapprehension of the evidence) or a failure to exercise discretion judicially (which includes acting arbitrarily or being “so clearly wrong as to amount to an injustice”) (Canada (Attorney General) v. Fontaine, 2017 SCC 47, [2017] 2 S.C.R. 205, at para. 36, quoting P. (W.) v. Alberta, 2014 ABCA 404, 378 D.L.R. (4th) 629, at para. 15). [para. 41]

The standard of review for sentencing is consonant with this general standard, while being adapted to the particular circumstances of sentencing.

[51]                          An appellate court may only vary a sentence if (1) the sentence is demonstrably unfit (Friesen, at para. 26; Lacasse, at para. 51), or (2) the sentencing judge made an error in principle that had an impact on the sentence (Friesen, at para. 26; Lacasse, at para. 44). Errors in principle “include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor” (Friesen, at para. 26). Not every error in principle is material; an appellate court can only intervene “if it is apparent from the trial judge’s reasons that the error had an impact on the sentence” (para. 26; see also Lacasse, at para. 44). If no such error exists, then appellate intervention is only justified if the sentence is demonstrably unfit (Friesen, at para. 26).

[52]                          Where a sentence is demonstrably unfit, or the sentencing judge made an error in principle that impacted the sentence, an appellate court must “apply the principles of sentencing afresh to the facts” and determine a fit sentence (Friesen, at para. 27; see also Lacasse, at para. 43). As this Court stated in Friesen:

[An appellate court] will apply the principles of sentencing afresh to the facts, without deference to the existing sentence, even if that sentence falls within the applicable range. Thus, where an appellate court has found that an error in principle had an impact on the sentence, that is a sufficient basis for it to intervene and determine a fit sentence. It is not a further precondition to appellate intervention that the existing sentence is demonstrably unfit or falls outside the range of sentences imposed in the past.

 

However, in sentencing afresh, the appellate court will defer to the sentencing judge’s findings of fact or identification of aggravating and mitigating factors, to the extent that they are not affected by an error in principle. This deference limits the number, length, and cost of appeals; promotes the autonomy and integrity of sentencing proceedings; and recognizes the sentencing judge’s expertise and advantageous position (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 15-18).

 

Often the sentence that the appellate court determines to be fit will be different from that imposed by the sentencing judge, and the appellate court will vary the sentence. If the sentence chosen by the appellate court is the same as that imposed by the sentencing judge, the appellate court may also affirm the sentence despite the error. [paras. 27-29]

C.            Did the Sentencing Judge Err in Principle?

[53]                          I turn now to whether the sentence imposed on the appellant is one that should be varied under s. 687.

(1)          Consideration of Treatment and Programming

[54]                          This case provides the Court with an opportunity to consider whether it is an error in principle to consider evidence of the availability and accessibility of institutional programming when sentencing an offender.

[55]                          The appellant submits that the sentencing judge erred in principle by increasing his term of imprisonment to account for the anticipated time needed to complete programming, or as a means of preventative detention (A.F., at para. 22). The Crown acknowledges that it would be an error to extend a sentence beyond the appropriate sentencing range on the basis of an offender’s anticipated treatment (R.F., at para. 32). However, where the sentencing judge imposes a sentence within the appropriate range, then access and amenability to treatment are relevant considerations (para. 32). The Crown’s position is that this case comes within the latter circumstance and that, accordingly, there is no reviewable error (para. 35).

[56]                          Rehabilitation of the offender and the protection of society are linked. The opening words of s. 718 state “[t]he fundamental purpose of sentencing is to protect society”. One of the objectives in pursuance of this is “rehabilitating offenders” (s. 718(d)). Rehabilitation is “one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate” (Lacasse, at para. 4).

[57]                          As sentencing is an individualized exercise (Parranto, at para. 38; Suter, at para. 4; M. (C.A.), at para. 92; see also Hills, at para. 62), a sentencing judge exercises broad discretion as to the weight to give to the sentencing objectives set out in s. 718, including rehabilitation, so as to arrive at a just sanction (Nasogaluak, at para. 43). Whatever weight a judge accords to the sentencing objectives, “the resulting sentence must respect the fundamental principle of proportionality” (Nasogaluak, at para. 40 (emphasis in original); see also Ipeelee, at para. 37). The combination of mitigating and aggravating circumstances, as referred to in s. 718.2(a), is unique to each case. Thus, there will be a range of acceptable outcomes within which a fit sentence can be fixed (see Shropshire, at para. 48, citing Muise, at pp. 123-24; see also Hills, at para. 64; Hamilton, at para. 85; Ruby, at §2.5).

[58]                          In determining a sentence within the range determined by such an individualized approach, a judge may have regard to considerations such as treatment and programming aimed at rehabilitation, subject to evidence of availability and accessibility. Rehabilitation “must be designed with the specific offender in mind”; it is best advanced by “appropriate treatment and/or punishment aimed at reintegration and future success” (R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, at para. 82). Thus, to the extent that the sentencing judge has regard to such considerations as relevant factors in determining a fit sentence, within a proportionate range, there is no error in principle.

[59]                          The situation is different where a sentencing judge fixes a sentence beyond the appropriate range by having sole regard to anticipated programming time (R. v. Legere (1995), 22 O.R. (3d) 89 (C.A.), at para. 38, citing R. v. Veen (No. 2) (1988), 33 A. Crim. R. 230 (H.C.), at p. 235; see also R. v. Spilman, 2018 ONCA 551, 362 C.C.C. (3d) 415, at para. 41). Such an approach would fail to give effect to the principle of proportionality; it would amount to preventative detention, which is generally not contemplated by Part XXII of the Code (see R. v. Keefe (1978), 44 C.C.C. (2d) 193 (Ont. C.A.), at p. 199; Legere).

[60]                          It is “one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence” (Legere, at p. 101 (emphasis added), citing Veen, at p. 235). As explained above, having regard to the protection of society as a factor aligns with the purposes, objectives, and principles of sentencing. That said, a judge cannot overemphasize this purpose to the exclusion of other relevant and applicable considerations when crafting a fit sentence (Spilman, at para. 40). As Arbour J. observed in R. v. Knoblauch, 2000 SCC 58, [2000] 2 S.C.R. 780:

There is no mechanism in criminal law to remove dangerous people from society merely in anticipation of the harm that they may cause. The limit of the reach of the criminal sanction is to address what offenders have done. [para. 16]

[61]                          There are limited exceptions to the foregoing, notably the dangerous offender and long-term offender scheme in Part XXIV of the Code “to protect the public when the past conduct of the criminal demonstrates a propensity for crimes of violence against the person, and there is a real and present danger to life or limb” (R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138, at para. 29, citing Hatchwell v. The Queen, [1976] 1 S.C.R. 39, at p. 43; see, e.g., Spilman; R. v. Pelly, 2021 SKCA 50, 403 C.C.C. (3d) 127). For this narrowly defined group of offenders, Parliament has decided that protection of the public is an “enhanced sentencing objective” (R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 56). I would emphasize the strict criteria that must be met by the Crown in seeking a designation under Part XXIV, as well as the extensive evidence required for such applications. Consideration of treatment in the ordinary sentencing regime is not to be used as an alternative to preventive detention under Part XXIV with all the attendant safeguards (Keefe, at p. 199).

[62]                          Finally, courts must bear in mind that once a sentence is imposed, it is correctional officials, not the sentencing judge, who determine what programming is offered to a given inmate. These correctional officials operate with limited resources; there are no guarantees as to when, or whether, an offender will be able to access institutional programming. There is often limited or no evidence as to these matters at the sentencing hearing; this raises the possibility of improper speculation (see, e.g., R. v. J.K.F. (2005), 195 O.A.C. 141, at para. 3; R. v. Snelgrove, 2005 BCCA 51, 207 B.C.A.C. 227). As well, Indigenous offenders within carceral institutions face disparity in accessing specialized and culturally adapted programming. Without an adequate evidentiary basis on the availability of such programming, Indigenous offenders may be sentenced to longer periods of incarceration for reasons that have no connection with the gravity of the offence or the moral blameworthiness of the offender (see, e.g., I.F., Queen’s Prison Law Clinic, at para. 8; see also Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 60). Thus, in many instances, considerations of rehabilitative programming should not be engaged with by sentencing judges.

[63]                          Courts should only consider program availability, treatment options, or time to completion when such submissions are supported by an adequate evidentiary record. For example, the Crown may tender case-specific and individualized evidence about the offender and correctional conditions. Evidence as to the necessity of specific correctional programming, or evidence from correctional authorities about the current timelines for programming availability and capacity, may also establish a sufficient basis. Furthermore, courts should be attuned to the reality that some offenders will be neither co-operative nor willing to engage in programming.

(2)          Application

[64]                          At issue is whether the sentencing judge erred in principle by taking into consideration the availability and accessibility of rehabilitative programming when sentencing the appellant. The appellant argues that the judge erred by doing so; he submits that, “[h]aving concluded that a sentence in the range of 7 to 8 years would adequately address the primary sentencing objectives of denunciation and deterrence, the sentencing judge was not entitled to increase [his] term of imprisonment to account for the time she assumed he would need to complete institutional programming” (A.F., at para. 26).

[65]                          The Court of Appeal did not agree that this is what the sentencing judge had done (para. 15). Hourigan J.A. stated that the sentencing judge did not rely solely on the appellant’s mental and cognitive limitations, or the length of anticipated programming, to determine his sentence (para. 15). Rather, the judge imposed a sentence within the appropriate range which was responsive to these considerations, among others; this was within her discretion to do (para. 15). 

[66]                          The Court of Appeal had regard to key passages from the judge’s reasons for decision on the sentence.

[67]                          Aitken J. began her analysis by rejecting the Crown’s proposed sentence of 10 years:

As an Aboriginal offender with significant challenges resulting in part from his early childhood years in such an impoverished and abusive environment (the legacy of intergenerational trauma), his level of moral culpability is reduced from what it would otherwise be. I would therefore not accede to the request of Crown counsel to impose a sentence of 10 years, at the high end of the range. [Emphasis added; para. 41.]

[68]                          Aitken J. then turned to the possibility of imposing a sentence between 7 to 8 years. While this “lower range” could meet the sentencing objectives of denunciation and deterrence, she was not satisfied that such a sentence would give effect to the ultimate purpose of protecting society and keeping “women in the community safe”, with particular emphasis on “the safety of vulnerable Aboriginal women and women living or working in vulnerable situations” (para. 41). As a result of these concerns, Aitken J. concluded that the appellant required “targeted treatment in an institution”, and that 9 years would be “sufficient time in a federal institution to complete needed programming prior to his release” (para. 42).

[69]                          Like the Court of Appeal, I do not read the sentencing reasons to mean that the appellant would have been sentenced to 7 to 8 years’ imprisonment but for considerations of rehabilitative treatment. While Aitken J. rejected a sentence of 10 years, there is nothing in her reasons to suggest that she foreclosed the possibility of a fit sentence between 8 and 10 years. Aitken J. articulated why a sentence in the “lower range” of 7 to 8 years was not appropriate (at para. 41), as it failed to address relevant sentencing purposes and objectives. Having decided that 10 years would be too high and that 8 years would be too low, Aitken J. chose 9 years.

[70]                          In regard to the sentencing judge’s observation that the appellant “will need sufficient time in a federal institution to complete needed programming prior to his release” (para. 42), the Court of Appeal found that the judge “did not rely solely” on this factor to determine the sentence (para. 15). I agree, though I would hasten to add the following.

[71]                          As explained above, it would be an error in principle for a sentencing judge to extend a sentence beyond the appropriate range (determined by reference to proportionality) as a result of anticipated programming time (Legere, at p. 101, citing Veen, at p. 235). However, where a judge seeks to craft a sentence within the appropriate range, they may have regard to such considerations. In this case, Aitken J. did the latter.

[72]                          The appellant’s mental capacity and rehabilitative potential were live issues at sentencing. The possibility and availability of rehabilitative treatment programming was canvassed and argued by the parties at the hearing (see A.R., at pp. 133-34, 145 and 147). The parties provided the court with several professional assessments that addressed the importance that the appellant undergo sexual offender programming, as well as his suitability for the different programs available in the federal and provincial systems (sentencing reasons, at paras. 35-38; A.R., at pp. 98-99; A.R. Supp., at pp. 4-7). As well, the pre-sentence report and the medical assessments provided valuable insight into the appellant’s mental and cognitive limitations. While the evidence addressed the benefits that the appellant would receive from programming, it was less fulsome with regard to programming availability, wait lists, and time to completion. However, having regard to the circumstances of this case, the sentencing judge did not err when she considered such evidence in sentencing the appellant.

[73]                          Importantly, the considerations about the appellant’s rehabilitation did not overwhelm the sentencing process; Aitken J. was alive to the fact that “[a]lthough the rehabilitation of an offender — particularly a young Aboriginal offender — is always a goal, that objective is tempered by the importance of the [other sentencing] objectives” (para. 17). Aitken J. also found that the appellant’s mental health issues and cognitive deficits were a “significant mitigating factor” that arose out of the intergenerational trauma wrought by colonialism and the residential schools system into which he was born (para. 39).

[74]                          In the end, I agree with the Court of Appeal that the sentencing judge did not extend an otherwise fit sentence when she considered the appellant’s anticipated time to complete institutional programming. The sentencing judge’s reasons disclosed no error in principle, and thus, this ground of appeal provides no basis for this Court to intervene.

[75]                          Finally, while neither of the parties made submissions before this Court on whether appellate intervention is warranted on the basis that the sentence imposed was demonstrably unfit, I would offer the following observations. Per Lacasse, a “very high threshold” applies to an appellate court when determining whether a sentence is demonstrably unfit (para. 52). The sentence must be a “substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes” (M. (C.A.), at para. 92; see also Lacasse, at para. 67; Suter, at paras. 23‑24).

[76]                          In the present case, considering the egregious circumstances of the sexual assault, the death threats to the victim, the forcible confinement, and the degrading manner in which the complainant was forced to make a recording stating that she had consented, the imposed sentence of 9-year custodial term cannot be said to be demonstrably unfit. I hasten to add that I am not addressing the range of sentences for sexual assaults generally; thus, I am not saying that any penetrative sexual assault calls for a similarly high sentence. Rather, the sentence reflects the particular and egregious circumstances of this case. Sentencing is an individualized undertaking.

D.           Assessment of Enhanced Credit

[77]                          I turn now to the question of whether the sentencing judge erred with regard to enhanced credit for the appellant’s pre-sentence detention at Providence.

(1)          The Development of Enhanced Credit

[78]                          Prior to being amended in 2008, s. 719(3) of the Code permitted courts to “take into account any time spent in custody by the person as a result of the offence” when determining sentence.

[79]                          In R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, this Court addressed whether enhanced credit could be granted when doing so would result in a sentence falling below a mandatory minimum. Arbour J., writing for the Court, found that it could. She recognized that “in contrast to statutory remission or parole, pre-sentence custody is time actually served in detention, and often in harsher circumstances than the punishment will ultimately call for” (para. 28). Arbour J. also cited the Ontario Court of Appeal’s statement in R. v. Rezaie (1996), 31 O.R. (3d) 713, at p. 721, in which Laskin J.A. summarized the two rationales for granting enhanced credit for pre-sentence custody:

. . . in two respects, pre-trial custody is even more onerous than post-sentencing custody. First, other than for a sentence of life imprisonment, legislative provisions for parole eligibility and statutory release do not take into account time spent in custody before trial (or before sentencing). Second, local detention centres ordinarily do not provide educational, retraining or rehabilitation programs to an accused in custody awaiting trial. [para. 28]

[80]                          Overall, this Court in Wust endorsed the well-established practice of sentencing judges granting enhanced credit when fixing a sentence (paras. 44-45). Historically, judges granted credit at a rate of 2:1 (para. 45), though rates of 3:1 or even 4:1 were applied for offenders who were subject to exceptionally harsh pre-sentencing conditions (Summers, at para. 31).

[81]                          In 2009, Parliament enacted the Truth in Sentencing Act, S.C. 2009, c. 29 (“TISA”), which changed how enhanced credit was granted in two ways (Summers, at para. 32). First, Parliament amended s. 719(3) such that, while courts could “take into account any time spent in custody by the person as a result of the offence”, the rate of credit was limited to 1:1. Second, Parliament enacted s. 719(3.1), which provided that the enhanced credit could be increased to 1.5:1 “if the circumstances justify it”, unless the accused was detained pending trial for specified reasons, e.g., breaching bail conditions (Summers, at para. 32).

[82]                          In Summers and its companion case, R. v. Carvery, 2014 SCC 27, [2014] 1 S.C.R. 605, this Court was called on to determine what “circumstances” justified granting credit of 1.5:1, pursuant to s. 719(3.1) (Summers, at para. 7). Karakatsanis J., writing for the Court, explained that “[w]hile there is now a statutory maximum, the analytical approach endorsed in Wust otherwise remains unchanged” (para. 70). She affirmed the two rationales identified in Wust for granting enhanced credit, referring to them as the “quantitative rationale” and “qualitative rationale” (para. 70). She held that judges should continue to assign credit on those two bases.

[83]                         The “quantitative rationale” for the practice of granting enhanced credit ensures that “the offender does not spend more time behind bars than if he had been released on bail” (Summers, at para. 23 (emphasis deleted)). As the Corrections and Conditional Release Act, S.C. 1992, c. 20, does not account for an offender’s pre-sentence custody when determining their parole and early release eligibility (para. 24), the “pre-sentence detention almost always needs to be credited at a rate higher than 1:1 in order to ensure that it does not prejudice the offender” (para. 26). Karakatsanis J. observed that a rate of 1.5:1 ensures that the offender who is released after serving two-thirds of their sentence serves the same amount of time in jail, whether they are subject to pre-sentence detention or not (para. 26).

[84]                         The qualitative rationale recognizes that “time in pre-trial detention is often more onerous than post-sentence incarceration” (Summers, at para. 28). Karakatsanis J., explained:

Remand detention centres tend not to provide the educational, retraining or rehabilitation programs that are generally available when serving a sentence in corrections facilities. . . . As Cronk J.A. noted in this case, overcrowding, inmate turnover, labour disputes and other factors also tend to make pre-sentence detention more onerous. [para. 28]

[85]                          Section 719(3.1) previously provided that enhanced credit would not apply where “the reason for detaining the person in custody was stated in the record under subsection 515(9.1)”. This Court held in R. v. Safarzadeh‑Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, that this exception in s. 719(3.1) was unconstitutional. In 2018, Parliament amended s. 719(3.1) to remove the statutory exceptions (An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, S.C. 2018, c. 29, s. 66).

[86]                          Thus, s. 719(3) and s. 719(3.1) now read:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

 

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody.

(2)          Whether Delay Caused by the Offender Constitutes “Wrongful Conduct”

[87]                          In Summers, Karakatsanis J. explained that, in certain situations, enhanced credit will “often be inappropriate” (para. 48). Notably, “when long periods of pre-sentence detention are attributable to the wrongful conduct of the offender” (para. 48) or “when detention was a result of the offender’s bad conduct” (para. 71), the offender will likely not be granted enhanced credit.

[88]                          This appeal raises the following question: When an accused causes delay in their criminal proceeding, in what circumstances does this amount to “wrongful conduct”? The appellant submits that wrongful conduct should be defined narrowly (A.F., at para. 54), and that it should not include procedural delays caused by the offender (para. 53). The Crown submits that sentencing judges “should exercise their discretion in a manner that discourages delay and enhances public confidence” (R.F., at para. 80), and that delay attributable to an offender’s conduct is a proper basis to deny enhanced credit (para. 84).

[89]                          Lower courts have considered what constitutes “wrongful conduct”, though often in obiter. For example, in R. v. Stonefish, 2012 MBCA 116, 288 Man. R. (2d) 103, the court suggested that an offender who is otherwise eligible for enhanced credit may be disentitled to it if they “intentionally delayed proceedings by continuously discharging counsel” or “created delay by not cooperating with probation officers during the preparation of the pre-sentence reports” (para. 82). In another case, the court opined that “where an offender attempts to ‘game the system’ by causing delays in order to accrue additional enhanced pre-sentence credit, the denial of enhanced credit in addition to the sentence imposed for the breach may be justified” (R. v. Hussain, 2018 ONCA 147, 140 O.R. (3d) 593, at para. 22).

[90]                          Some cases have considered conduct other than delay to be “wrongful conduct” justifying the denial of enhanced credit. For example, some courts have considered whether factors considered in sentencing, such as aggravating factors, are relevant to the determination of enhanced credit (see, e.g., R. v. McBeath, 2014 BCCA 305, 341 C.C.C. (3d) 531; R. v. Boutilier, 2018 NSCA 65, 30 M.V.R. (7th) 31). Other cases query whether committing an offence while on bail or probation disqualifies an offender from obtaining enhanced credit (see, e.g., R. v. Morris, 2013 ONCA 223, 305 O.A.C. 47; R. v. Campbell, 2017 ONSC 26, at para. 62; R. v. Bonneteau, 2016 MBCA 72, 330 Man. R. (2d) 139, at para. 22; see also Ruby, at §13.98). I am of the view that consideration of such circumstances is better left for another day, in cases where the relevant facts arise.

[91]                          That said, in deciding what constitutes wrongful conduct as contemplated in Summers, we should bear in mind the purpose of s. 719(3.1). Following the enactment of the TISA, the newly imposed cap on enhanced credit aimed to “remove any incentive for an accused to drag out time in remand custody, and to provide transparency so that the public would know what the fit sentence was, how much credit had been given, and why” (Summers, at para. 4).

[92]                          Moreover, what constitutes wrongful conduct needs to be consistent with the purpose, objectives and principles of sentencing, as s. 719(3) and s. 719(3.1) are part of the overall sentencing scheme (Summers, at para. 59). Giving “wrongful conduct” too broad a scope risks undermining the principle of proportionality. Individuals who are denied enhanced credit on the basis of wrongful conduct will be subject to an extended period of incarceration for a reason unrelated to “the gravity of the offence and the degree of responsibility” (s. 718.1). Too broad a scope also risks undermining the principle of parity, as an offender’s wrongful conduct would lead to disparity in sentences imposed on “similar offenders for similar offences committed in similar circumstances” (s. 718.2(b); see Summers, at para. 61).

[93]                          Thus, in circumstances where the offender has acted so as to delay proceedings, this in and of itself is not sufficient to constitute wrongful conduct. For example, where pre-sentence delay was caused by an offender’s indecision on whether to plead guilty, this cannot be said to be wrongful (see Carvery, at paras. 19-20).

[94]                          However, 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 (Carvery, at para. 20). While Moldaver J.’s observations in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, relate to the impact of delays on s. 11(b) of the Canadian Charter of Rights and Freedoms, I find them apt in this context as well. Timely trials have a bearing not only on the accused, but also on victims and witnesses (paras. 22-23). They are important in “maintaining overall public confidence in the administration of justice” (para. 25). Unreasonable delays risk offending the public’s sense of justice, as such delays leave the “innocent in limbo and the guilty unpunished” (para. 25; see also R. v. Askov, [1990] 2 S.C.R. 1199, at pp. 1219-20). Moreover, delays exacerbate the suffering of victims and may discourage them from cooperating with the criminal justice system (Jordan, at paras. 23-24).

[95]                          At the hearing, counsel for the appellant submitted that the appellant’s decisions to discharge counsel cannot be considered wrongful because he was exercising his constitutional rights (transcript, at p. 32). Similarly, the Criminal Lawyers’ Association (Ontario) intervened to submit that the exercise of one’s legal rights cannot constitute wrongful conduct (I.F., at para. 23), as that would effectively punish an offender for the manner in which they conducted their defence (para. 25).

[96]                          It is beyond question that exercising one’s lawful rights is, in and of itself, not wrongful. Causing delay, e.g., by dismissing counsel, choosing not to plead guilty, or raising Charter motions, is not wrongful conduct per se. But such actions become wrongful conduct where an offender demonstrates an intention to frustrate or undermine the proper processes in the criminal justice system.

[97]                          For example, in R. v. Codina, 2019 ONCA 986, the Court of Appeal for Ontario upheld the sentencing judge’s refusal to grant enhanced credit because the appellant had significantly delayed her trial by bringing numerous motions and applications (para. 3). The applications included, inter alia, jurisdictional and constitutional challenges (R. v. Codina #1, 2017 ONSC 7162, 56 Imm. L.R. (4th) 43; R. v. Codina, 2017 ONSC 7315, 408 C.R.R. (2d) 1), Charter challenges (R. v. Codina #3, 2017 ONSC 7561), a motion for a directed verdict (R. v. Codina #6, 2017 ONSC 7648), a s. 11(b) Charter motion (R. v. Codina, 2017 ONSC 4886), and an adjournment request (R. v. Codina #7, 2018 ONSC 1096, 57 Imm. L.R. (4th) 175). At sentencing, the judge described Ms. Codina’s applications as being “entirely without merit” and that she was “repeatedly trying to litigate matters that had already been decided” (R. v. Codina #8, 2018 ONSC 2180, at para. 173). Based on this, the sentencing judge denied Ms. Codina enhanced credit.

[98]                         Ms. Codina’s intention to frustrate the operation of the justice system was evident through the numerous frivolous applications she raised throughout her trial, resulting in long periods of delay. Codina is an example of how an accused’s exercise of Charter rights can, in exceptional circumstances, constitute wrongful conduct in the context of enhanced credit. The determination of whether there was wrongful conduct is to be made on a case-by-case basis. As to the onus of proof, per this Court’s guidance in Summers, there is not an automatic right to enhanced credit (para. 75). Rather, the onus is on the offender (para. 79). That said, generally speaking, the fact that pre-sentence confinement has occurred will “be sufficient to give rise to an inference that the offender has lost eligibility for parole or early release, justifying enhanced credit” (paras. 79).

[99]                          When this has been shown, the onus shifts to the Crown (Summers, at para. 79) to show that the offender has engaged in wrongful conduct. It will be open to the Crown to demonstrate other grounds for withholding enhanced credit, including that the accused is a particularly dangerous offender who has “committed certain serious offences for whom early release and parole are simply not available” or that the “the accused’s conduct in jail suggests that he is unlikely to be granted early release or parole” (para. 79). Throughout the process, sentencing judges must bear in mind that “[e]xtensive evidence will rarely be necessary. A practical approach is required that does not complicate or prolong the sentencing process” (para. 79).

(3)          The Standard of Review

[100]                      This case also provides this Court with an opportunity to clarify the standard of review when assessing a sentencing judge’s determination as to enhanced credit.

[101]                      A sentencing judge’s decision on enhanced credit is to be considered as part of the overall sentence imposed (see Summers, at para. 59). Thus, there is no separate standard of review for enhanced credit. Rather, where an appellate court reviews a sentencing judge’s decision to award or deny, enhanced credit, they are to do so applying the standard of review for sentencing (see R. v. Assiniboine, 2016 MBCA 44, 326 Man. R. (2d) 282, at para. 30; R. v. Slack, 2015 ONCA 94, 125 O.R. (3d) 60, at para. 9).

[102]                      This means that 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.

[103]                      Absent such an error, a sentencing judge’s determination as to enhanced credit is entitled to deference (Assiniboine, at para. 30; Stonefish, at para. 30). As Arbour J. held in Wust, there is a “well-entrenched judicial discretion” provided in the enhanced credit regime (para. 44). There is no advantage in “endorsing a mechanical formula” for enhanced credit (para. 44). Instead, Arbour J. explained:

The credit cannot and need not be determined by a rigid formula and is thus best left to the sentencing judge, who remains in the best position to carefully weigh all the factors which go toward the determination of the appropriate sentence, including the decision to credit the offender for any time spent in pre-sentencing custody. [para. 45]

[104]                      This deference is subject, however, to the sentence as a whole being found demonstrably unfit (see Lacasse, at para. 52). In such circumstances, an appellate court may intervene and vary the sentence, including the quantum of enhanced credit.

[105]                      In sum, the appellate standard of review for enhanced credit is not distinct from that for sentencing overall; rather, it is an application of that standard.

(4)          Application

[106]                      In the present case, the appellant spent 607 days in custody at Providence; this time did not go towards parole or early release eligibility. Pursuant to Summers, the fact that pre-sentence detention has occurred will generally be sufficient to infer that the offender has lost parole and early release eligibility, thereby justifying enhanced credit (paras. 71 and 79). However, as noted, the appellant was denied this enhanced credit by the sentencing judge based on wrongful conduct. The sentencing judge concluded that “most of the reasons for delay were caused by or initiated by” the appellant (at para. 10), as he was “frequently changing his mind and changing his lawyers” (para. 46).

[107]                      While the sentencing judge accurately observed that the appellant’s conduct led to delays in his proceedings, she did not turn her mind to whether such conduct was wrongful. In my view, the sentencing judge erred in her assessment by failing to have regard to a relevant factor, that being the appellant’s mental health during his committal period. The evidence indicates that the appellant’s conduct prior to being found unfit was a consequence, entirely or to a significant degree, of his mental and cognitive state.

[108]                      As noted above, the Gladue report and pre-sentence reports both describe the appellant’s long-standing history of mental health challenges. In addition, there was evidence from the forensic psychiatrist who prepared the appellant’s fitness report that the appellant’s case “has taken longer because he has gone through several lawyers” and that this “was because of his untreated psychotic mental state” (A.R. Supp., at p. 8). Upon being deemed unfit and transferred to Providence for treatment, “things settled down” for the appellant (p. 8). He was able to retain and instruct his fourth and final counsel, so as to move towards the disposition of his case (p. 8).

[109]                      The sentencing judge failed to have proper regard to the foregoing when considering whether the appellant’s actions intentionally frustrated the proper operation of the system of criminal justice. In light of this, I would conclude that the appellant’s actions, while having caused significant delays, did not constitute wrongful conduct that would disqualify him from enhanced credit.

[110]                      Accordingly, I would vary the sentence to give the appellant enhanced credit at a rate of 1.5:1 for the 607 days that he was at Providence. Accounting for the revised calculations by the Court of Appeal, this amounts to an additional 304 days of enhanced credit.

[111]                      Given that there is a sufficient basis to grant Summers credit based on the quantitative rationale (paras. 71 and 79), it is therefore unnecessary for me to address whether the qualitative rationale applies in this case. On that point, I would say only that while conditions in a mental health facility will be different than those in a remand centre, both constitute forms of imprisonment. As stated in Summers, “[i]ncarceration at any stage of the criminal process is a denial of an accused’s liberty” (para. 49, citing Rezaie, at p. 104).

VI.         Conclusion

[112]                      For the foregoing reasons, I would allow the appeal in part and award the appellant 304 days of credit against the sentence imposed, in addition to the credit awarded by the Court of Appeal.

                    Appeal allowed in part.

                    Solicitors for the appellant: Embry Dann, Toronto.

                    Solicitor for the respondent: Attorney General of Ontario, Crown Law Office — Criminal, Toronto.

                    Solicitor for the intervener Attorney General of Alberta: Alberta Crown Prosecution Service, Appeals and Specialized Prosecutions Office, Edmonton.

                    Solicitor for the intervener Queen’s Prison Law Clinic: Martell Defence, Toronto.

                    Solicitors for the intervener Criminal Lawyers’ Association (Ontario): Sewrattan Criminal Lawyers Professional Corporation, Toronto; Law Office of Kalina and Tejpal PC, Mississauga.

                    Solicitors for the intervener Empowerment Council: Anita Szigeti Advocates, Toronto; Rodin Law Firm, Calgary; Brass Law Office, Ottawa.

                    Solicitors for the intervener Canadian Civil Liberties Association: Addario Law Group, Toronto.

                    Solicitor for the intervener Aboriginal Legal Services Inc.: Aboriginal Legal Services, Toronto.