The SCC also said judges can consider the time offenders need for treatment when crafting sentences
When coming up with an appropriate sentence for an offender, judges can factor in the anticipated time that the offender will spend in a rehabilitative facility as long as the final sentence “is proportionate to the gravity of the offence and the degree of responsibility of the offender,” the Supreme Court of Canada ruled in a unanimous decision on Friday.
The high court also ruled that sentencing judges cannot deny “enhanced credit” to offenders simply because they delayed proceedings. Under the Criminal Code, offenders earn enhanced credit for each day they are detained in custody before trial and sentencing. Offenders can use this credit to reduce their sentence, but judges can deny the use of this credit if the offender engages in certain wrongful conduct.
“In circumstances where the offender has acted so as to delay proceedings, this in and of itself is not sufficient to constitute wrongful conduct,” Justice Malcolm Rowe wrote for the court. “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.
“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.”
The case involves J.W., a man with significant cognitive impairments who violently assaulted a staff member in the group home that he lived in. A few months after the incident in 2018, J.W. pled guilty to sexual assault, threatening to cause death and unlawful confinement. He was arrested and held in custody.
J.W. changed counsel three times and withdrew from three proposed plea agreements over the next few years, delaying proceedings. In 2020, he was admitted by court order to a mental health facility, where he was diagnosed with mental illness and developmental intellectual disabilities. After being found unfit to stand trial in early 2021, he was found fit to stand trial later that year and pled guilty.
A judge sentenced J.W. to nine years in prison, stating he needed time in a federal institution to go through sexual offender programming. She rejected J.W.’s request to apply the enhanced credit he earned through his pre-sentence detention at the mental health facility, partly because he delayed the proceedings by repeatedly changing his mind about his lawyers and plea agreements.
An appellate court confirmed that the sentencing judge had the authority to conclude that J.W. was wrong to delay proceedings repeatedly.
However, the SCC disagreed, ruling that the sentencing judge erred by denying J.W. enhanced credit for the time he was detained at the mental health facility.
“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,” Rowe wrote.
“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,” Rowe added. “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.”
Rowe said courts should not condone attempts to “game the system” by delaying proceedings. However, the sentencing judge should have considered J.W.’s mental health challenges when determining whether he was intentionally trying to stall.
Paul Socka and Erin Dann of Embry Dann LLP, who represented J.W., told Canadian Lawyer in a statement on Friday that the SCC’s decision “thankfully affirms that a particular offender’s mental illness or cognitive impairments alone cannot justify any sentence increase. To the extent that anticipated time for the offender to complete institutional programming can be a factor to consider in crafting a sentence, the court has set a high, evidence-based threshold for doing so.”
The lawyers added that the high court’s decision “also set a very high bar before a sentence can be lengthened due to procedural delays, requiring the Crown to prove that the delays were created with an intention to frustrate the proper operation of the criminal justice system.”
A spokesperson for the Attorney General of Ontario declined to comment.
