Criminal Law News
By: Geoffrey Read
NEW FEDERAL STATUTORY HOLIDAY
“A holiday, a holiday...” (see Fairport Convention’s Matty Groves -https://youtu.be/1it7BP5PckI)
On Friday, July 30, 2021, public media reported that the federal government promulgated a new statutory holiday on September 30th, just in time for a snap general election, named the National Day for Truth and Reconciliation. Here, in the justice system world, we wondered how this would affect our courts. The answer came in the form of a terse Public Statement by Ontario’s three Chief Justices, the third and final paragraph of which said:
“Our Courts will be closed except for certain matters that must be heard. In the Ontario Court of Justice, Weekend and Statutory Holiday (bail) courts will operate. In the Ontario Superior Court of Justice, urgent matters such as those heard on statutory holidays will be heard. Further details of court operations on September 30 will be provided by each court.” See https://www.ontariocourts.ca/scj/public-statement/.
Now we know. Of course, by the time you see this, it will, like the election, have come and gone.
Two recent developments worth noting.
First, the courts have been distinguishing between Summers and Duncan credits. Crown counsel have lately seized on R. v. Marshall, 2021 ONCA 344. Justice Doherty, speaking for the court in his customarily instructive terms, began by observing (at para. 2) something of a truism in these cases that “The ultimate issue presented on the appeals is straightforward, and both counsel have clearly articulated their positions. Unfortunately, one must slog through a blizzard of numbers and calculations to properly understand the arguments and determine the fitness of the sentences.”
He also observed the desirability of counsel agreeing on the amount of any “Duncan” credit, saying (at the noted paras.):
 ... Doing so avoids adjournments in the sentencing process to compile the necessary information, and avoids lengthy evidentiary hearings, which will often yield results that are less than definitive.
 If counsel are able to agree on the “Duncan” credit, the trial judge should depart from that agreement, only after careful consideration and after giving counsel a full opportunity to address any concerns the trial judge might have. The trial judge should also provide reasons for departing from the figure agreed upon by counsel.
He proceeded to explain the distinction between the Duncan and the Summers credits this way (at the noted paras.):
 ...I propose to make some observations about the calculation of the “Duncan” credit. A “Duncan” credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind the 1.5:1 “Summers” credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody: Summers, at paras. 28-29. The “Duncan” credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a “Duncan” credit: R. v. Morgan, 2020 ONCA 279.
 It is also important to appreciate and maintain the clear distinction between the “Summers” credit and the “Duncan” credit. The “Summers” credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence. The “Summers” credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. The “Summers” credit is statutorily capped at 1.5:1. It is wrong to think of the “Summers” credit as a mitigating factor. It would be equally wrong to deny or limit the “Summers” credit because of some aggravating factor, such as the seriousness of the offence: R. v. Colt, 2015 BCCA 190.
 The “Duncan” credit is not a deduction from the otherwise appropriate sentence but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.
 Often times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk the “Duncan” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated in that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 2004 CanLII 39056 (ON CA), 187 O.A.C. 307 (C.A.). Arguably, that is what happened in this case, where on the trial judge’s calculations, the “Duncan” credit devoured three-quarters of what the trial judge had deemed to be the appropriate sentence but for pretrial custody.
Second, regarding claims for Duncan credits, our top court in Ontario has pretty definitively declared that there needn’t be specific evidence of the effects of lockdowns as long as there is evidence of the lockdowns on the record. At para. 11 of R. v. Bristol, 2021 ONCA 599, the Court said:
“While the respondent argues that the appellant did not lead any evidence of direct impact on him arising from the lockdowns, we are of the view that some impact is self-evident. Lockdowns involve lack of showers and loss of physical activity. They also mean that prisoners are restricted to their cells for long periods of time. Individual evidence is not required to establish those basic effects which go beyond the difficult and restrictive circumstances offenders often encounter during pre-trial custody and which are accounted for by the Summers credit.”
Thus, after finding errors by the trial judge such that the correct sentence ought to be reduced from 10 to 7 years of imprisonment, the court said (at para. 12) that:
“In deciding on seven years as the appropriate sentence we have included a Duncan credit for these periods of lockdown. As noted in R. v. Marshall, 2021 ONCA 344, at para. 52, the Duncan credit is ‘not a deduction from the otherwise appropriate sentence but is one of the factors to be taken into account in determining the appropriate sentence’.”
It seems, however, that our friends on the prosecution side are still creatively trying to figure how to limit these credits. One Ontario criminal lawyer reported that Crown counsel tallied up the total hours the accused had been subject to specific onerous conditions and then argued that he should only get Duncan credit equal to that exact tally. Happily, it didn’t work.
Geoffrey Read is a sole practitioner in Hamilton. He is certified by the Law Society of Ontario as a Specialist in Criminal Law.
He can be reached at:
20 Hughson Street South, Suite 612