The Supreme Court rendered their Judgment in this important case on sentencing issues and a host of considerations, including mental health concerns and cognitive impairment today.

The case is now reported on CanLii here

R. v. J.W. R. v. J.W., 2025 SCC 16 (CanLII)
 

It was an honour and a privilege as always to represent the Empowerment Council as intervener.

Here is the background to our involvement and the case on the blog:

Here is a link to a Plain Language Summary by the Court

https://www.scc-csc.ca/judgments-jugements/cb/2025/40956/

Additional information

• See full decision
• Date: May 23, 2025
• Neutral citation: 2025 SCC 16
• Breakdown of the decision:
  • Unanimous: Justice Rowe allowed the appeal in part (Chief Justice Wagner and Justices Karakatsanis, Côté, Martin, Kasirer, Jamal, O’Bonsawin and Moreau agreed)
• On appeal from the Court of Appeal for Ontario
• Case information (40956)
• Webcast of hearing (40956)
• Lower court rulings:
  • Application (Ontario Superior Court of Justice)
  • Appeal (Court of Appeal for Ontario)

The Important Part for EC is at paras 106-111 excerpted below with my emphasis added

(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).

Article in Law360

May 23 2025

https://www.law360.ca/ca/criminal/articles/2344466/supreme-court-of-canada-gives-sentencing-guidance-on-enhanced-credit-for-pre-sentence-custody