Pre-Sentence Credit & Custodial Programming

 

Introduction

The Supreme Court of Canada’s (the “SCC” or the “Court”) decision in R v JW, 2025 SCC 16 [JW] addresses two intertwined controversies in Canadian sentencing law. First, it clarifies whether—and how—a sentencing judge may take account of the time an offender is likely to need to complete institutional programming when setting a custodial term. Second, it refines the meaning of “wrongful conduct” for the purpose of denying enhanced pre-sentence credit under s 719(3.1) of the Criminal Code, RSC 1985, c C-46 (the “Code”).  By upholding a nine-year sentence yet restoring 1.5-for-1 credit for the days the appellant spent in a psychiatric hospital, the Court re-balances proportionality, rehabilitation, and restraint in a manner that is likely to influence both trial-level sentencing practice and correctional policy.

Facts and Background

J.W., a 28-year-old member of the Attawapiskat First Nation, suffered from schizophrenia and other cognitive disorders and lived in a staffed group home. Over the night of 26–27 May 2018, he repeatedly sexually assaulted, threatened, and unlawfully confined the lone overnight worker—herself an Indigenous woman—–and forced her to record a video falsely stating she had consented. Police intervened after the victim texted “911” to her supervisor.  J.W. pleaded guilty to sexual assault, uttering death threats, and unlawful confinement.

What followed was a protracted four-year remand period. J.W. cycled through four lawyers, withdrew an early guilty plea, and underwent multiple psychiatric assessments. He spent 812 days in remand centres and 607 days at Providence Care Hospital (“Providence”), where he was first found unfit, then fit, to stand trial. In April 2022, Aitken J of the Ontario Superior Court of Justice imposed a nine-year penitentiary term.  She credited the remand days at 1.5:1 but—deeming J.W.’s serial discharge of counsel “wrongful conduct” and noting the relatively therapeutic conditions at Providence—refused enhanced credit for the hospital period. As well, Aitken J extended J.W.’s sentence in order to provide time to complete institutional sexual offender programming. The Court of Appeal for Ontario upheld Aitken J’s ruling, save for a minor calculation in time served adjustment.

Legal Issues and Judgment

Three issues were raised on appeal to the SCC:

1. May a sentencing judge consider the time required for institutional treatment when fixing a fit sentence?
2. Do self-generated procedural delays amount to “wrongful conduct” that disqualifies an accused from enhanced credit?
3. Does the qualitative hardship rationale for credit apply to detention in a mental-health facility?

Writing for a unanimous court, Martin J affirmed the nine-year custodial term but granted 1.5:1 credit for the 607 hospital days. On the first issue, the Court held that it is permissible to weigh credible evidence about the availability and accessibility of treatment programs within an otherwise proportionate sentencing range; it is impermissible to lengthen a sentence beyond that range simply to ensure program completion. On the second issue the Court narrowed “wrongful conduct” to conduct intended to frustrate or game the justice system. Because the delays in J.W.’s case were tied to his untreated psychosis, they were not wrongful.  Having granted quantitative credit, the Court found it unnecessary to decide whether psychiatric custody is qualitatively harsher than remand, though it hinted that both are liberty-depriving.

Analysis & Observations

Evidence-Based Use of Programming Time and the Principle of Proportionality

The Court’s treatment of programming time builds on its earlier insistence in R v Shropshire, 1995 CanLII 47 (SCC) that proportionality “often gives rise to a range of sentences, rather than a single ‘correct’ result” (JW, para 1). Martin J accepted that rehabilitation and public safety may justify selecting a sentence within a range that is long enough for an offender to finish specialised programming.  Crucially, she distinguished this approach from the error denounced in R v Legere, 1995 CanLII 1551 (ONCA) where the Court of Appeal for Ontario struck down a sentence that exceeded the range solely to ensure treatment. 

By anchoring the discretion in proportionality, the Court reconciled the “individualised sentencing” language of R v Hills, 2023 SCC 2 and R v Hamilton, 2004 CanLII 5549 (ONCA) with its longstanding rejection of preventive detention except in the special Dangerous and Long-Term Offender regime found in Part XXIV of the Code.  The message to trial judges is two-fold: (a) do not speculate—admit program-length evidence only where correctional officials or experts supply concrete timelines; and (b) do not treat programming as a free-standing aggravator.  In this way, JW operationalises the Court’s earlier caution in R v Boudreault, 2018 SCC 58: rehabilitation must be “designed with the specific offender in mind” (para 82) without eclipsing denunciation and deterrence.

“Wrongful Conduct” Narrowed: Summers, Jordan, and Codina Revisited

Section 719(3.1) of the Code permits enhanced credit “if the circumstances justify it,” subject to an exception for “wrongful conduct.”  In R v Summers, 2014 SCC 26 [Summers] the Court left that term undefined; lower-court results were uneven, with some decisions treating any self-induced delay as disqualifying (e.g., Stonefish, 2012 MBCA 116) and others reserving the label for manipulative behaviour (e.g., Hussain, 2018 ONCA 147).

JW resolves the ambiguity by importing the abuse-of-process language of R v Jordan, 2016 SCC 27. Only delays that intentionally frustrate or game the system count as wrongful. Routine counsel changes, Charter motions, or mental-health assessments—even if time-consuming—do not. The Court’s exemplar is R v Codina,  2019 ONCA 986 where meritless, repetitive applications demonstrated a clear intent to delay.  This “intent” test protects procedural rights while preserving judicial power to deny credit in egregious cases.

Of equal importance is the evidentiary burden: once pre-sentence custody is shown, an inference arises that parole eligibility has been lost (Summers, para 79).  The Crown must then prove wrongful conduct.  By framing the inquiry in this structured way, JW curtails the ad-hoc moralism that sometimes coloured credit determinations and enhances parity across jurisdictions.

Ipeelee, Mental Health, and Moral Blameworthiness

Martin J. repeatedly emphasised that J.W.’s schizophrenic illness and the inter-generational trauma associated with his Attawapiskat upbringing diminish his moral culpability—echoing R v Ipeelee, 2012 SCC 13 which held that s 718.2(e) “mandates a different method of analysis” for Indigenous offenders (para 59). By rejecting a 10-year sentence yet stopping short of the 7- to 8-year range suggested by the defence, the Court attempts to honour both the restraining and denunciatory dimensions of proportionality.

Significantly, the judgment cites Ewert v Canada, 2018 SCC 30 to highlight the disparities that Indigenous inmates face in accessing culturally adapted treatment.  Although the Court does not impose a positive obligation on provinces or the Correctional Service of Canada (the “CSC”) to provide such programming, its insistence on an “adequate evidentiary record” (JW, para 62) about availability sets the stage for future litigation—perhaps including Charter claims grounded in substantive equality under ss 7 or 15.

Qualitative and Quantitative Credit Rationales after Wust

The restoration of 1.5-for-1 credit for the 607 days that J.W. spent at Providence revives the quantitative rationale from R v Wust, 2000 SCC 18 [Wust]: pre-sentence detention usually postpones statutory release, so a mechanical 1-for-1 credit is insufficient.  While the sentencing judge relied on the supposedly “favourable” conditions at Providence to deny credit, the Court found that qualitative comfort cannot override the quantitative unfairness unless wrongful conduct is established.

Because enhanced credit was granted on quantitative grounds, the Court declined to decide whether psychiatric hospital time is qualitatively harsher—or perhaps less harsh—than remand (Summers, para 28).  That question remains live, and a record documenting restrictive conditions or therapeutic benefits could push future courts toward variable credit rates, echoing prior practice where 2:1 or even 3:1 was applied for exceptionally harsh conditions.

Standard of Review: Fitting Enhanced Credit into Lacasse

Appellate courts have occasionally suggested a more intrusive standard of review when reviewing enhanced-credit rulings. JW folds that debate into the mainstream framework established in R v Lacasse, 2015 SCC 64: an appellate court may intervene only for a material error in principle, a palpable and overriding misapprehension of fact, or a demonstrably unfit sentence (JW, paras 100–105).  This harmonization reduces doctrinal complexity, curbs sentence appeals that re-litigate credit mathematics, and underscores the “well-entrenched judicial discretion” recognised in Wust (para 44).

Systemic and Policy Implications

Truth in Sentencing Act Aftershocks 

In the 2009 Truth in Sentencing Act, SC 2009, c 29, Parliament shifted from the historic 2:1 default credit to a 1:1 default credit with limited 1.5:1 discretion, intending to discourage lengthy remand.  Yet remand numbers have continued to climb, a trend the Court tacitly acknowledged by reaffirming broad access to the 1.5:1 maximum. Provinces—whose budgets shoulder remand costs—now have renewed incentive to streamline bail and mental-health assessment processes.

CSC Accountability 

The CSC often cites programming waitlists to oppose early release.  JW flips the script: if programming slots are scarce, the Crown will struggle to produce the “adequate evidentiary record” needed to justify longer sentences.  Defence counsel will likely subpoena CSC data on program capacity, driving greater transparency.

Victim-Centred Sentencing

While the decision in JW corrects a sentencing-credit injustice, it simultaneously affirms the seriousness of sexual violence against Indigenous women, reflecting Parliament’s s 718.04 direction to prioritise denunciation in such cases.  The Court thus avoided the optics of privileging offender illness over victim safety, a balance that may bolster public confidence in the justice system.

Closing Observation

JW is best viewed not as a departure but as a doctrinal consolidation.  It clarifies how evidence, proportionality, Gladue factors, and programming needs interlock, while shielding pre-sentence credit from erosion through happenstance delay or mental illness.  Whether the decision ultimately shortens time-served averages or prompts better institutional programming depends on actors beyond the courtroom.  What is clear is that sentencing judges now have a firmer map—and fewer excuses for preventive over-reach—when navigating the complex terrain between public safety and offender rehabilitation.