Research on Duncan Credit & the Pandemic

January 2023

Since the writing of this blog post, the Court of Appeal of Ontario has released the following additional cases on enhanced credit awarded due to unduly harsh time spent in pre-trial custody:

1. v. Marshall, 2021 ONCA 344 and;
2. v. Bristol, 2021 ONCA 599

Presentence Custody

Section 719(3) of the Code provides for a 1:1 credit for time served in pre-sentence custody, to be applied during sentencing. Section 719 (3.1) allows for this credit to be increased to 1.5:1 when circumstances justify it. R v Duncan 2016 ONCA 754 opened the door for enhanced credit beyond 1.5:1. The two factors in this determination should be: 1) conditions of the presentence incarceration and 2) impact on the accused.

In R v Persad 2020 ONSC 188, the issue was over excessive lockdowns at the Toronto South Detention Centre (TSDC) during the accused’s presentence custody. The defence asked for Duncan credit of 2.5:1, the Crown recommended 1.5:1, for each day spend in lockdown. The Court decided on 1.5:1 for every day in presentence custody, plus an additional 1.5 days for every day in lockdown. In support of this decision, the Court noted: 

• Details of the accused’s affidavit during lockdown days: using toilet in front of others; small cell size & inability to stretch; lack of telephone contact with family; atmosphere & violence which caused fear & a hyper-vigilant state; clothing & towels stained with blood, urine, & feces; infection from dirty nail clippers supplied by TSDC staff; mental health (depression, anxiety, low self esteem); change from social to anti-social person

• Testimony of a TSDC staff that majority of lockdown days were due to staff shortages
• 14 other decisions from 2015-2020 detailing inhuman conditions at the TSDC
• Deliberate state misconduct regarding conditions at the TSDC

Question: How are courts applying Duncan presentence custody credit when the custody occurred during the pandemic?

Generally, courts in Ontario have been providing additional credit for time spent in presentence custody during the pandemic. In some cases, such as Studd, a judge has assigned specific credit for time spent during the pandemic. In others, such as A.A., the Court assigned additional credit based on time spent in lockdown and the harsher conditions of the pandemic, without an itemized breakdown. There is no mathematical formula for the application of Duncan or collateral consequences credit. Each case is decided based on the conditions of the custody and the impact those conditions had on the accused.

The following cases specifically dealt with Duncan credit and the pandemic:

• R v Morgan, 2020 ONCA 279 – Sentencing appeal. Appellant argued sentence was fit at time, but the pandemic rendered it unfit. Citing R v Suter, 2018 SCC 34, Court used “collateral consequences” category for sentencing purposes. Court found to reduce sentence further would be to render it disproportionate/ unfit. 
  • No additional pandemic credit given

• R v Bell, 2020 ONSC 2632 – Court used March 16, 2020 (the day the courts in Ontario closed) as start date for calculating days-in-custody-during-pandemic. Notice taken that jail conditions increase risk of infection and pre-existing conditions (asthma + newly diagnosed condition in this case) could cause further complications if infected. Affidavit of accused mentioned: lockdowns, poor physical and mental health, ongoing medical issues, lack of hygiene, fighting in jails, and that he was attacked in jail. Time spent in TDSC, Maplehurst, TEDC.
  • Credit of 1.5 x total days in custody
  • 45 days of custody occurred during pandemic, and 117 days were spent in lockdown. Additional credit of 85 days given “… or just over one-half for each day of particularly harsh conditions”.

• R v Hearns, 2020 ONSC 2365 – Judicial notice taken of pandemic and that risk of infection higher in jails. A lack of underlying conditions or other enhanced vulnerability does not negate concern of infection. No mention of lockdown days. Pomerance J wrote the Court is not at liberty to assign credit above 1.5, as per the Code.
  • Credit of 1.5 x total days in presentence custody

• R v Studd, 2020 ONSC 2810 – Accused spent 454 days in presentence custody, 204 in full or partial lockdown (of those 198 due to staff shortages at TSDC). Davis J inferred from gov’t document (“Response to Covid-19 Information Note”) that inmates had limited access to PPE and noted pre-existing health conditions putting accused at further risk.
  • 1.5 credit for all days in presentence custody; additional +1 day for each of 198 days in lockdown due to staff shortages
  • 4-month sentence reduction due to covid

• R v A.A., 2020 ONSC 3802 – While in custody at TSDC, AA contracted Covid-19. Due to age and pre-existing health conditions, accused was afraid of death from the virus. Consideration given to fact that sentence will have to be served while pandemic ongoing.
  • Credit of 1.5 x 62 days of pre-sentence custody per Code
  • Duncan credit of 2 x 897 days; total of 1887 days credit applied

• R v Mosodeen, 2020 ONCJ 543 – Accused’s affidavit detailed how church services and other programs removed due to pandemic; anxiety over lack of self isolation options and fear of contracting virus. Affidavit of an epidemiologist submitted by defence set out how those in institutions are at much greater risk of contracting virus vs. the general public.
  • Credit of 1.5 x all days in presentence custody
  • Additional 1x Duncan credit for 73 days on lockdown (full or partial) pre-pandemic [noted conditions at Vanier not as harsh as TSDC]
  • No additional credit for lockdowns during pandemic, called it “double dipping”

• R v McLaughlin, 2020 ONCJ 566 – Accused’s affidavit did not focus on impact of lockdowns, rather of stress of being in jail during pandemic. All but 4 of 118 days in partial or total lockdown due to staff shortages. Took judicial notice of conditions as TSDC. Noted that context is important – at time of decision, Ontario was in 2nd wave, Toronto and Peel regions in government-imposed lockdown.
  • Credit granted: Total days in presentence custody x 1.5; + 60 days Duncan credit for 118 days in partial or total lockdown; + 1 month credit as result of pandemic

The ultimate conclusion is that although courts are prepared to award enhanced credit for time spent in custody during the COVID-19 pandemic, the methodology which is applied use is left to the discretion of the sentencing judge.

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NOTE: THIS IS NOT LEGAL ADVICE AND THIS SHOULD ONLY BE RELIED ON FOR INFORMATIONAL PURPOSES. THIS BLOG IS NO SUBSTITUTE FOR LEGAL ADVICE BY AN ACTUAL LAWYER. THE LAW ALSO DYNAMIC IS CHANGES OFTEN, AND AS A RESULT, THE INFORMATION CONTAINED HEREIN MAY BE OUTDATED AFTER TIME. THIS BLOG MUST NOT BE RELIED ON AS A SUBSTITUTE FOR ACTUAL LEGAL RESEARCH.