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Criminal - Sentencing - Rehabilitation. R. v. J.W.
In R. v. J.W. (SCC, 2025) the Supreme Court of Canada partially allowed a criminal sentencing appeal, here from a dismissal of an appeal at the Ontario Court of Appeal (save for a calculation error), and that from a sentence of "9 years’ imprisonment, less an enhanced credit of 1,792 days" in the Superior Court.
In this case, the court provides "guidance as to how programming and treatment aimed at rehabilitating an offender can properly be considered in arriving at a fit sentence":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 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at para. 48, citing R. v. Muise (1994), 1994 NSCA 198 (CanLII), 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), 2004 CanLII 5549 (ON CA), 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.
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(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), 1995 CanLII 1551 (ON CA), 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), 1978 CanLII 2540 (ON CA), 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, 1974 CanLII 203 (SCC), [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), 2005 CanLII 5398 (ON CA), 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. . R. v. Bourdon
In R. v. Bourdon (Ont CA, 2023) the Court of Appeal considered evidence of post-offence rehabilitation as a sentencing factor, here in the context of a fresh evidence motion:D. FRESH EVIDENCE
[29] The appellant seeks to introduce his handouts and worksheets from the AICPM on the basis that they demonstrate his reduced risk to the community. These materials are not attached to nor accompanied by an affidavit which would place them in their proper context.
[30] We dismiss the appellant’s fresh evidence motion on the basis that the proposed evidence does not meet the criteria for admission in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775 – it is neither credible or reliable, nor capable of undermining the sentencing judge’s decision – but also because the impact of the AICPM was already thoroughly considered on sentencing. There was ample evidence to support the trial judge’s conclusion that the AICPM would be insufficient to reduce the appellant’s risk to an acceptable level.
[31] As the Supreme Court held in R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 43, an offender’s post-sentencing rehabilitative efforts and prospects will only exceptionally meet the fresh evidence test, and will generally be a matter for correctional authorities who administer the sentence.
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