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Criminal - Sentencing - Credits


Part 2

. R. v. Smith

In R. v. Smith (Ont CA, 2023) the Court of Appeal considers credit for 'Downes' pre-sentence custody:
[12] Finally, we note that Downes credit is not a sentence, but a credit applied to reduce a sentence. The respondent could not properly be sentenced to Downes credit. In so sentencing the appellant, the sentencing judge effectively increased the sentence by six months over the limit where a conditional sentence could be imposed. We accept that the sentencing judge no doubt did this unintentionally. In any event, that error does not change the fact that a conditional sentence was not appropriate in the circumstances of this case.

[13] In our view, given the circumstances of the offender and of the offences, the proper total sentence to be imposed on the respondent is four and one-half years before any credits. Against that, the appellant accepts that the respondent is entitled to the six-month Downes credit determined by the sentencing judge and to the credit for his pre-sentence custody. In addition, the respondent is entitled to some credit for the time that he has been on his conditional sentence. Aggregating all of these credits would leave a total of three years to be served.
. R. v. D.N.

In R. v. D.N. (Ont CA, 2023) the Court of Appeal allowed a Charter s.11(d) ["presumption of innocence"] challenge regarding several CCC sexual offence [ss.171.1(3) ("Making sexually explicit material available to child") and 172.2(3) ("Agreement or arrangement — sexual offence against child")] evidentiary presumptions.

In this quote the court comments on some useful sentencing principles:
[123] However, while a sentence begins on the day it is imposed, in R. v. Walker, 2017 ONCA 39, at paras. 14 to 28, this court explained that a sentence will nonetheless be illegal if the sentence imposed plus pre-sentence custody exceeds the maximum allowable sentence under the Criminal Code.
. R. v. J.W.

In R. v. J.W. (Ont CA, 2023) the Court of Appeal noted the discretionary nature of a trial judge's awarding of pre-sentence credit in criminal sentencing:
[22] The decision of whether and how much credit to award an offender for pre-sentence custody is highly discretionary. There is no automatic entitlement to enhanced credit for pre-sentence custody. The onus of establishing entitlement to credit for pre-sentence custody, and any enhancement of that credit, is on the offender.
. R. v. J.W.

In R. v. J.W. (Ont CA, 2023) the Court of Appeal considered an appeal of the trial judge's assessment of 'Summers' credit:
(3) The Sentencing Judge Made No Error in Refusing to Award Enhanced Credit for the Time Spent at Providence

[21] The appellant contends that the sentencing judge erred in principle by refusing to grant him enhanced Summers credit for time he spent in pre-sentence custody at Providence.

[22] The decision of whether and how much credit to award an offender for pre-sentence custody is highly discretionary. There is no automatic entitlement to enhanced credit for pre-sentence custody. The onus of establishing entitlement to credit for pre-sentence custody, and any enhancement of that credit, is on the offender.

[23] The sentencing judge gave detailed reasons for her decision not to award enhanced credit for the time the appellant spent at Providence. She recognized that enhanced pre-sentence custody serves both quantitative and qualitative purposes.

[24] Regarding the quantitative rationale, the sentencing judge, relying on Summers, held that “Mr. W’s lengthy pre-sentence custody was due in great measure to his frequently changing his mind and changing his lawyers.” While the sentencing judge did not expressly describe the appellant’s conduct as “wrongful conduct”, her reference to Summers leaves little doubt that she viewed his conduct as wrongful.

[25] This finding was neither factually nor legally in error. There was ample evidentiary basis for the sentencing judge’s conclusion that the appellant had inordinately delayed proceedings by repeatedly scheduling guilty pleas and then resiling from them, and by repeatedly firing his lawyers. As noted in Summers, delay caused by an accused person is a proper basis to deny enhanced credit for the time spent in pre-sentence custody or on stringent bail terms. The sentencing judge made no error in concluding that, during the time in which the appellant was legally fit, he had delayed proceedings and lengthened his own pre-sentence custody.

[26] The sentencing judge’s further finding that the qualitative rationale for granting enhanced Summers credit did not apply in the circumstances also reflects no error. The sentencing judge reviewed in detail the appellant’s living conditions while at Providence. She found that the conditions at Providence were not only less harsh than those in the Quinte Detention Centre, but were also comparable or favourable to those the appellant experienced while living in the community.

[27] The qualitative rationale for Summers credit is to recognize the time in pre-trial detention is often more onerous than post-sentence incarceration. It is a fact-dependent and discretionary exercise. We see no error in the sentencing judge considering the unique facts of the appellant’s living arrangements, or the accommodations available in hospital, to determine that his pre-sentence custody was neither harsh nor onerous.

[28] In our view, the trial judge’s discretionary decision to deny enhanced credit for the time spent at Providence, based on the particular circumstances experienced by the appellant, reflected no error. This ground of appeal is therefore dismissed.
. R. v. Avansi

In R. v. Avansi (Ont CA, 2023) the Court of Appeal considered 'Duncan' pre-trial incarceration sentencing credits:
[7] On the third ground of appeal, the sentencing judge expressly considered the appellant’s arguments for enhanced Duncan credit for the hardships he experienced in presentence custody, namely his inability to use his sleeping CPAP machine and the 26 days in lockdown due to COVID-19. Duncan was a brief endorsement wherein this court denied enhanced presentence credit. In the course of its endorsement, the panel noted, “in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1).” From this modest statement, a body of jurisprudence has developed wherein so-called Duncan credits have morphed into a mathematical exercise akin to R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 credits.

[8] In R. v. Marshall, 2021 ONCA 344, this court clarified that Duncan credits are not a deduction from the otherwise appropriate sentence. Instead, they are a factor to be considered in determining the proper sentence where particularly punitive presentence incarceration conditions are extant. Because a Duncan credit is a mitigating factor, it cannot justify the imposition of an inappropriate sentence, having regard to all of the relevant mitigating or aggravating factors: Marshall, at para. 52.

[9] The appellant argues that the sentencing judge erred by acknowledging the merits of his claim for Duncan credits but not making a specific deduction from the sentence imposed. We disagree. The sentencing judge referenced Marshall, and it is evident that she considered the impact of the presentence conditions as a mitigating factor in determining the appropriate sentence. To suggest that she was obliged to make a specific deduction to the otherwise fit sentence imposed is incorrect.
. R. v. Smith

In R. v. Smith (Ont CA, 2023) the Court of Appeal considered a criminal sentence appeal regarding credit for pre-trial custody:
The Sentencing Judge Used a Pre-Marshall Framework to Deduct a Specific Period of Time to Reflect “Duncan Credit”

[33] In order to understand where the error lies in this case, it is first necessary to understand the methodology used by the sentencing judge to take into account the harsh custodial conditions arising from COVID-19.

[34] The sentencing judge’s reasons reflect what I will call a “Duncan framework”.

[35] In Duncan, this court recognized that in appropriate circumstances, “particularly harsh presentence incarceration conditions” could act to mitigate sentence beyond the statutory cap of a 1.5 day credit for every day served in pre-sentence custody: Duncan, at para. 6; Criminal Code, R.S.C. 1985, c. C-46, s. 719(3.1). In determining whether enhanced credit should be assigned, the court emphasized that we look to not only the conditions of the pre-sentence custody, but also the impact of those conditions on the accused: Duncan, at para. 6.

[36] The harsh conditions in custodial settings arising from COVID-19 have been described by this court as “collateral consequences”: see R. v. Morgan, 2020 ONCA 279, at paras. 8-9; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48. As reinforced in Marshall, at para. 50, Duncan credit is directed at those collateral consequences which include “exceptionally punitive conditions” going beyond the “normal restrictions associated with pretrial custody.” The restrictions and health risks associated with COVID-19 were described in Marshall as a “good example” of the very kind of circumstance that could give rise to a Duncan credit: at para. 50.

[37] Marshall added an important nuance to the Duncan framework. While it does not amount to an error to deduct a specific number of days or months as Duncan credit, it is preferable if sentencing judges simply address any Duncan-type concerns as a type of mitigating factor when determining the fit global sentence. Therefore, the Duncan credit should not be approached as a “deduction from the otherwise appropriate sentence”, but as a factor to be taken into account when determining the fit sentence in all of the circumstances: Marshall, at para. 52.
. R. v. Basque

In R. v. Basque (SCC, 2023) the Supreme Court of Canada considered the crediting of a pre-trial suspension release undertaking against a driving suspension sentence. In these quotes the court generally considers sentence 'crediting', here with a CCC mandatory minimum sentence requirement:
[3] If not for the requirement in s. 259(1)(a), granting credit would undoubtedly be possible. Indeed, in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 — a case that did not concern a mandatory minimum prohibition — this Court confirmed that there is a common law judicial discretion to grant credit for a pre‑sentence driving prohibition. This discretion is a natural extension of the longstanding practice of crediting offenders for periods of pre‑sentence custody.

[4[ Provided that Parliament respects the relevant constitutional constraints, it can, of course, enact legislation that displaces the common law rule allowing credit to be granted for a pre‑sentence driving prohibition. Ms. Basque does not challenge the constitutionality of s. 259(1)(a) but argues that her request for credit is not limited in any way by the imposition of the mandatory minimum prohibition. The respondent Crown, relying on the majority reasons of the Court of Appeal, argues instead that granting credit in this case would conflict with the application of the one‑year minimum prohibition, even though the relevant statutory provision is silent on crediting.

[5] Respectfully, I believe that the respondent is mistaken. In my view, granting credit based on the common law discretion recognized in Lacasse is perfectly consistent with the application of the minimum prohibition in s. 259(1)(a) Cr. C. and with the rule requiring that a sentence commence when it is imposed in s. 719(1) Cr. C. It was therefore open to the sentencing judge to take into account the period of 21 months already served by Ms. Basque, as this would not undermine Parliament’s intent.

[6] The discretionary authority to grant credit under the common law can coexist harmoniously with judicial adherence to a mandatory minimum established by statute. This coexistence rests on the well‑known distinction between the concepts of “punishment”, understood as a deprivation, and of “sentence”, understood as a judicial decision (in French, the distinction between “punition” and “sentence”, where the term “peine” can also be used to convey both meanings). This distinction, considered by Rosenberg J.A. in the context of credit for pre‑sentence custody in R. v. McDonald (1998), 1998 CanLII 13327 (ON CA), 40 O.R. (3d) 641 (C.A.), was taken up by Arbour J. of this Court in R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at paras. 35‑37, with particular attention to the multiple meanings of the French term “peine”. From this perspective, Arbour J. explained that while the term “peine” used in the sense of “punishment” refers to the total punishment imposed on an offender, the same word when used to mean “sentence” refers to the decision rendered by the court. It bears noting that a sentence is always prospective in order to prevent the judicial practice of backdating sentences (see s. 719(1) Cr. C.).

[7] As a general rule, the purpose of a mandatory minimum is to impose on an offender an effective punishment of a specified minimum length. This is so because the objectives underlying a minimum punishment are achieved equally well whether the punishment is served before or after the offender is sentenced. In the instant case, the mandatory minimum provided for in s. 259(1)(a) is no exception to this rule.

[8] Properly interpreted, s. 259(1)(a) requires the court to impose a total punishment of one year to be served by the offender, not to hand down a sentence imposing a one‑year prohibition that must necessarily be served prospectively. As Rosenberg J.A. noted in McDonald, Parliament’s intention is respected whether the punishment is served before or after the offender is sentenced, because the effect on the offender is the same in either case. Interpreted in this way, s. 259(1)(a) did not prohibit the sentencing judge from “reducing” the sentence by granting credit for the pre‑sentence driving prohibition period, as long as the total punishment remained consistent with the minimum prescribed by Parliament.

[9] By the time the trial judgment was rendered in this case, it had been 21 months since Ms. Basque had essentially “begun serving [her] sentence” (see R. v. Sharma, 1992 CanLII 90 (SCC), [1992] 1 S.C.R. 814, at p. 818, cited with approval by Wagner J., as he then was, in Lacasse, at para. 113). When considered from this perspective, the objectives of the minimum punishment set out in s. 259(1)(a) had already been met — and even surpassed. In such a context, granting credit to “reduce” the length of the prohibition imposed on Ms. Basque does not conflict with s. 259(1)(a) because she has already served a driving prohibition period exceeding the one‑year minimum required by that provision. Crediting also addresses the considerations of fairness and justice touched on in Wust, including what Paciocco J.A. usefully described in an academic paper as “the aversion to double punishment” (D. M. Paciocco, “The Law of Minimum Sentences: Judicial Responses and Responsibility” (2015), 19 Can. Crim. L.R. 173, at p. 211).

[10] In short, no conflict arises from the concurrent application of s. 259(1)(a) and the common law rule that allows credit to be granted. At the time of sentencing, the court is required to impose the one‑year mandatory minimum punishment, but there is nothing in the statute that prevents it from then granting credit. Similarly, granting credit is not contrary to the requirement set out in s. 719(1) Cr. C. because only the sentence has to commence when it is imposed, not the one‑year minimum punishment served under s. 259(1)(a). These statutory provisions therefore do not displace the discretion of sentencing judges that was recognized in Lacasse. Of course, Parliament remains free, within the constraints imposed by the Constitution, to limit this discretion, but it must do so through a “clear provision to that effect” (Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521, at para. 56). There is no such provision here, as s. 259(1)(a) is silent regarding the granting of credit.

[11] Furthermore, the codification of the discretion to give credit for pre‑sentence custody in s. 719(3) Cr. C. has no impact on this appeal. Like s. 259(1)(a), s. 719(3) is unambiguous, and it is also silent with respect to driving prohibitions. Here, the absence of an analogous provision for driving prohibitions does not signify a positive intention by Parliament to eliminate the discretion recognized in Lacasse, a case which, I should add, was decided after s. 719(3) was enacted.

[12] In light of the foregoing, and given that Ms. Basque has already been prohibited from driving for 21 months, the imposition of an additional one‑year prohibition period would amount to a kind of double punishment, contrary to the most fundamental requirements of justice and fairness. Conscious of this fact, the sentencing judge ordered a one‑year driving prohibition but found that Ms. Basque had already satisfied this condition. However, he backdated Ms. Basque’s sentence to achieve this result. With respect, this was an error. He could quite properly have imposed the one‑year mandatory minimum punishment required by s. 259(1)(a) Cr. C., stated that a sentence commences when it is imposed under s. 719(1) Cr. C., and then granted credit for the pre‑sentence driving prohibition period by exercising his common law discretion, which has not been displaced by the Criminal Code.


A. Key Statutory Provisions

[30] At the time of the events, the former s. 259(1) Cr. C. made a driving prohibition order mandatory for certain impaired driving offences, including the summary conviction offence relevant to this case (similarly, see the current s. 320.24(2) Cr. C., enacted by S.C. 2018, c. 21). Paragraphs (a), (b) and (c) of s. 259(1) established a gradation of mandatory minimum prohibition periods that took into account the offender’s previous convictions for such offences:
Mandatory order of prohibition

259 (1) When an offender is convicted of an offence committed under section 253 or 254 . . ., the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel or an aircraft or railway equipment, as the case may be,

Ordonnance d’interdiction obligatoire

259 (1) Lorsqu’un contrevenant est déclaré coupable d’une infraction prévue aux articles 253 ou 254 . . ., le tribunal qui lui inflige une peine doit, en plus de toute autre peine applicable à cette infraction, rendre une ordonnance lui interdisant de conduire un véhicule à moteur dans une rue, sur un chemin ou une grande route ou dans tout autre lieu public, un bateau, un aéronef ou du matériel ferroviaire :

(a) for a first offence, during a period of not more than three years plus any period to which the offender is sentenced to imprisonment, and not less than one year;

(a) pour une première infraction, durant une période minimale d’un an et maximale de trois ans, en plus de la période d’emprisonnement à laquelle il est condamné;

(b) for a second offence, during a period of not more than five years plus any period to which the offender is sentenced to imprisonment, and not less than two years; and

(b) pour une deuxième infraction, durant une période minimale de deux ans et maximale de cinq ans, en plus de la période d’emprisonnement à laquelle il est condamné;

(c) for each subsequent offence, during a period of not less than three years plus any period to which the offender is sentenced to imprisonment.

(c) pour chaque infraction subséquente, durant une période minimale de trois ans, en plus de la période d’emprisonnement à laquelle il est condamné.
[31] Section 718.3(2), which is in the division of the Criminal Code dealing with “Punishment Generally”, provides that the punishment to be imposed (“peine à infliger” in French) is in the court’s discretion, subject to the limitations set out in the enactment prescribing the punishment in question:
Discretion respecting punishment

[718.3](2) Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment.

Appréciation du tribunal

[718.3](2) Lorsqu’une disposition prescrit une peine à l’égard d’une infraction, la peine à infliger est, sous réserve des restrictions contenues dans la disposition, laissée à l’appréciation du tribunal qui condamne l’auteur de l’infraction, mais nulle peine n’est une peine minimale à moins qu’elle ne soit déclarée telle.
[32] The parties also focused attention on s. 719. Its first subsection is entitled “Commencement of sentence” (in French, the word “peine” is used as the parallel term to “sentence” in this context). Section 719(3) is entitled “Determination of sentence” (“Infliction de la peine” in French). These provisions read as follows:
Commencement of sentence

719 (1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.

. . .

Determination of sentence

(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.

Début de la peine

719 (1) La peine commence au moment où elle est infligée, sauf lorsque le texte législatif applicable y pourvoit de façon différente.

. . .

Infliction de la peine

(3) Pour fixer la peine à infliger à une personne déclarée coupable d’une infraction, le tribunal peut prendre en compte toute période que la personne a passée sous garde par suite de l’infraction; il doit, le cas échéant, restreindre le temps alloué pour cette période à un maximum d’un jour pour chaque jour passé sous garde.
[33] It is appropriate at the outset to recognize that linguistic usage in this area of sentencing is often uneven, be it in legislation, jurisprudence or scholarship. In the title for s. 259(1) Cr. C., Parliament spoke of a “mandatory order of prohibition” / “ordonnance d’interdiction obligatoire”. In the English‑language reasons of the Court of Appeal in this case, the terms “mandatory minimum”, “mandatory minimum sentence” and “mandatory driving prohibition” are used. In the French‑language version of the reasons, “peine minimale obligatoire” and “période minimale d’interdiction” predominate. In the Criminal Code more broadly, the terms “minimum punishment” / “peine minimale” are frequently used as equivalents (see, e.g., R. v. Hilbach, 2023 SCC 3, at paras. 2 and 12, interpreting s. 344(1) Cr. C. and using both “mandatory minimum sentence” / “peine minimale obligatoire” and “mandatory minimum punishment” / “peine minimale obligatoire”). That said, as Arbour J. wrote in Wust, “[w]hat is fundamental is less the words chosen, in the French or English version, but the concepts that they carry” (para. 36).
The court more fully explains their ruling on these issues at paras 39-76.

. R. v. Lira

In R. v. Lira (Ont CA, 2023) the Court of Appeal considered criminal sentencing credits, both for pre-sentence custody and (effectively) for harsh conditions:
Sentence appeal

[15] The appellant argues that the trial judge did not give him credit for harsh conditions of confinement caused by lockdowns and the COVID-19 pandemic during his time in pre-sentence detention at the Toronto South Detention Centre (“TSDC”). As the appellant put the issue in his submissions, in the time period he was sentenced, he was aware that some inmates were given “2 for 1” or “2.5 for 1” credit for pre-sentence custody, but he was only given “1.5 to 1” credit.

[16] We see no error in the manner in which the trial judge addressed credit for pre-sentence custody and the related issue of mitigation for harsh conditions of confinement.

[17] With respect to credit for pre-sentence custody pursuant to s. 719(3) and (3.1) of the Criminal Code (“Summers credit”), the trial judge gave the appellant credit for pre-sentence custody at a rate of 1.5 days credit for each actual day of pre-sentence custody. This worked out to 5 years and eight-and-one-half months credit. Consistent with the decision in R. v. Summers, 2013 ONCA 147, 114 O.R. (3d) 641, this amount was deducted from the global sentence that the trial judge considered appropriate.

[18] The trial judge also gave credit for harsh conditions of confinement. However, in accordance with the decisions of this court, she treated harsh conditions of confinement as a mitigating factor to be considered in assessing the appropriate sentence, rather deducting it from the appropriate sentence: R. v. Marshall, 2021 ONCA 344, at paras. 50-53.

[19] That the trial judge proceeded this way is clear from her reasons. She accepted the appellant’s evidence regarding harsh conditions of confinement and lockdowns at the TSDC. She found that the appellant “was impacted by the exceptionally harsh conditions at the TSDC due to lockdowns and the pandemic.” She accepted that the impact of the harsh conditions at the TSDC was “a significant mitigating factor” to be considered in determining the appropriate sentence. However, in accordance with Marshall, she declined to do “a mathematical calculation” of the mitigating effect of harsh conditions of confinement.

[20] After considering the circumstances of the offences, the appellant’s circumstances, the aggravating and mitigating circumstances, and the principles of sentencing, the trial judge found that an appropriate sentence before considering the totality principle or mitigation for harsh conditions of confinement was 16 years imprisonment.[1] She then considered what would be a fit sentence, taking into account the totality principle and mitigation for harsh conditions of confinement, and concluded that a fit global sentence would be 10 years imprisonment. Thus, the sentence was adjusted downward by six years to account for totality and harsh conditions of confinement. The 5 years and eight-and-one-half months of Summers credit was then deducted from the 10 year sentence, leaving four years and three-and-one-half months remaining for the appellant to serve.

[21] Thus, the appellant did receive credit for harsh conditions of confinement in addition to the 1.5 to 1 Summers credit. The trial judge considered it as a mitigating factor, without quantifying it in a specific number of days. The manner in which the trial judge addressed mitigation for harsh conditions of pre-sentence confinement is consistent with the decisions of this court and reveals no error.


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