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Criminal - Sentencing - Credits (2). R. v. Halk
In R. v. Halk (Ont CA, 2023) the Court of Appeal considered 'Summers' sentencing credit:[4] However, we agree with the appellant on the final issue raised. He was refused R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, credit for a 32-day period on the basis that he had specifically refused to attend court on the original date set for sentencing. Having reviewed the transcript of the appellant’s evidence on this point, where he offered an explanation and apology that was unchallenged in cross-examination and submissions, we are of the view that he should not have been denied enhanced Summers credit for this period of time. . R. v. Menezes
In R. v. Menezes (Ont CA, 2023) the Court of Appeal considers 'Duncan' pre-sentence credit (PSC):[81] Duncan credit was historically used to credit some time to an accused who had experienced “[p]articularly punitive pretrial incarceration conditions”: Marshall, at para. 52. Since Marshall, courts are directed to treat harsh pre-sentence conditions as a mitigating factor to be taken into account with all mitigating and aggravating factors when determining a fit sentence. . R. v. McLean
In R. v. McLean (Ont CA, 2023) the Court of Appeal considered an appeal regarding 'Duncan' pre-sentence credits (PSC):[3] The appellant submits that the sentencing judge erred in not awarding Duncan credit to reflect the harsh conditions of the appellant’s PSC (i.e., institutional lockdowns). The sentencing judge heard evidence on the issue from correctional officials, and from the appellant.
[4] The sentencing judge declined to award Duncan credit, correctly noting that credit for lockdown days is not an entitlement. The awarding Duncan credit is inherently discretionary. It is entitled to deference on appeal: R. v. U.A., 2019 ONCA 946, at para. 15.
[5] We see no error in the sentencing judge’s approach. We do not accept the appellant’s submission that he erroneously elevated the threshold for receiving such credit. He simply found that the appellant’s experience in lockdown conditions did not transcend the hardships of being incarcerated for a long time, often in a cell with another inmate. This was already reflected in the award 7 years’ credit for PSC. He further found that the appellant’s health issues were not impacted by the lockdowns and that he received proper medical attention. . R. v. Johnston
In R. v. Johnston (Ont CA, 2023) the Court of Appeal considers factors on imposing a conditional sentence, including the role of pre-sentence credits:[6] When considering the imposition of a conditional sentence, a court must first decide that the imposition of a sentence of imprisonment of less than two years is fit. If such a sentence is not fit, then a conditional sentence cannot be imposed: R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742, R. v. Basque, 2023 SCC 18. Thus, once the sentencing judge had determined that a three-year sentence was fit, a conditional sentence was not available. The conclusion that a penitentiary term of imprisonment was required is reinforced by the fact that both counsel had suggested penitentiary terms of imprisonment in their submissions.
[7] The sentencing judge nevertheless sought to impose a conditional sentence by deducting 12 months and 10 days as credits for pre-trial custody and strict bail conditions, thereby leaving less than two years for the respondent to serve. However, this is not an available route to imposing a conditional sentence because it ignores the point made expressly in Fice, at para. 4: “A conditional sentence cannot become available to an offender who otherwise deserves a penitentiary term solely because of the time the offender spends in pre-sentence custody.” . R. v. C.L.
In R. v. C.L. (Ont CA, 2023) the Court of Appeal considered criminal sentencing 'credits':(2) The sentencing judge did not err in her analysis of enhanced credit for pre-trial custody
[15] With respect to the issue of credit for pre-trial custody, the sentencing judge provided the appellant with enhanced credit between his first date of incarceration, August 1, 2017, to the date that the threat was made against the jail guard on January 17, 2018 (170 days of custody plus 85 days of credit, totalling 255 days). For the remainder of the time period between January 18, 2018 and his sentencing date of August 8, 2018 the appellant did not receive enhanced credit (202 days). The total amount of credit subtracted from the appellant’s sentence was 457 days, or the equivalent of 15.25 months.
[16] The determination of credit for pre-trial custody is discretionary and entitled to deference: R. v. Huang, 2020 ONCA 341, at para. 11. The sentencing judge was entitled to consider the likelihood of the appellant obtaining statutory release as part of the calculation of the appropriate amount of credit: R. v. Slack, 2015 ONCA 94, 125 O.R. (3d) 60, at paras. 16, 19-20.
[17] Here, the judge found a likelihood that the appellant would be denied statutory release because of his “very clear misconduct” in custody when he threatened to kill a correctional officer. This finding was supported by the record and was open to the sentencing judge. . R. v. Browne
In R. v. Browne (Ont CA, 2023) the Court of Appeal considers some arguments regarding criminal sentencing credits:[7] The appellant then complains that the sentencing judge failed to give adequate credit under the principles established in R. v. Suter, 2018 SCC 34. In fact, the sentencing judge directly addressed the issue of collateral consequences in her reasons. In doing so, however, she noted that the principles established by Suter cannot be used to reduce a sentence to the point where it becomes disproportionate to the gravity of the offence.
[8] The appellant’s next complaint is that the sentencing judge failed to give adequate credit or consideration to the Morris factors.[1] Once again, the sentencing judge made express reference to the Morris factors in her sentencing reasons. As is the case with the Suter factors, the Morris factors also cannot justify the imposition of a sentence that is disproportionate to the seriousness of the offence. As this court said in Morris, at para. 76, “Evidence that an offender's choices were limited or influenced by his disadvantaged circumstances, however, speaks to the offender's moral responsibility for his acts and not to the seriousness of the crimes.”
[9] We would add, on this point, that we are satisfied that the sentencing judge’s adoption of a 15-year sentence adequately accounted for the Suter and Morris factors that she expressly identified. Indeed, we note that Crown counsel had initially indicated that an 18-year sentence would have been appropriate.
[10] Finally, the appellant says that the sentencing judge failed to give adequate credit under the principles in R. v. Duncan, 2016 ONCA 754. The appellant says that the one-year credit that the sentencing judge gave for the conditions under which the appellant served his pre-sentence was inadequate given the history of lockdowns; COVID issues; and lack of proper medical treatment. The appellant submits that a credit of two years ought to have been given.
[11] We do not dispute that the sentencing judge might have given additional credit for the particular circumstances of pre-sentence custody that the appellant endured. However, the sentencing judge concluded that a credit of one year was sufficient. Her determination is entitled to deference from this court. There is nothing manifestly unreasonable in her decision on this issue and therefore there is no basis for this court to interfere.
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