J.W. v. His Majesty the King

(Ontario) (Criminal) (By Leave)

(Publication ban in case)


Criminal law — Sentencing — Whether anticipated time to complete rehabilitative programming may be considered when determining length of custodial sentence — Whether delay caused by offender is wrongful conduct justifying denial of enhanced custodial credit — Whether offenders detained in mental health facilities prior to sentencing entitled to enhanced credit for those periods


Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.


The applicant, an Indigenous man with significant cognitive difficulties, repeatedly sexually assaulted a worker at the group home where he resided. He remained in custody pending trial, including a period of detention in a psychiatric facility while temporarily unfit to stand trial. After resiling from three agreements to plead guilty, the applicant did so the fourth time. From charge to conviction, nearly four years elapsed.

The sentencing judge imposed a nine-year custodial term. This term was lengthier than the one requested by the applicant, in part because his cognitive difficulties increase the amount of time required for rehabilitative programming. The sentencing judge considered the applicant’s repeated abandonment of agreements to plead guilty to be wrongful conduct and disallowed enhanced pre-sentence custodial credit for part of the applicant’s detention. The sentencing judge also relied on the relatively favourable conditions of detention in the psychiatric facility as a basis to deny enhanced credit.

The Court of Appeal allowed an appeal in part, due to an error in calculating the number of days the applicant spent in custody, but otherwise dismissed the appeal. It found that the length of time required to complete rehabilitative programming was one of multiple factors that the sentencing judge considered, and that she was entitled to do so. Furthermore, there was an evidentiary basis to conclude that the applicant’s repeated abandonment of guilty pleas was wrongful conduct, and that the applicant’s conditions of detention did not warrant enhanced credit for his entire period of pre-sentence custody.

Lower Court Rulings

April 14, 2022
Ontario Superior Court of Justice

2022 ONSC 2274
Sentenced to nine years’ imprisonment.
August 17, 2023
Court of Appeal for Ontario

2023 ONCA 552
Appeal allowed in part.