Should harsh pretrial conditions play a role in sentencing?

Law360 Canada (January 9, 2025, 10:34 AM EST) --

John L. Hill

In one of its first judgments of 2025, the Ontario Court of Appeal has given direction on two perplexing issues: (1) How much weight should be placed upon an accused’s prior convictions as a youth when that person is later convicted as an adult, and (2) what are the considerations to be applied when credit is requested for pretrial custody and credit for serving that time under harsh conditions?

The decision in R. v. Kumi, 2025 ONCA 3, followed an appeal of the sentence by 31-year-old Jeffrey Kumi, whose punishment included seven years and seven months imprisonment less three years credit for pre-sentence custody. Kumi was self-represented on his appeal, although he was effectively assisted by duty counsel, Toronto criminal lawyer Dan Stein.

Kumi was caught on closed-circuit TV discarding a restricted firearm, fentanyl and cocaine as he ran down an alleyway after leaving the scene of a car accident. His conviction was for possession of a loaded restricted firearm, possession of that weapon while on probation and failure to remain at the accident scene. The trial judge, Justice Joseph DeFilippis of the Ontario Court of Justice, acquitted Kumi of the drug charges and the drug possession charges because there was reasonable doubt as to the quantity of drugs.

The first argument raised on appeal was that the trial judge gave too much weight to offences Kumi had committed under the Youth Criminal Justice Act (YCJA). The Crown had argued, based on R. v. Able, 2013 ONCA 385, that a conviction for possession of a restricted firearm with ammunition, contrary to s. 95(1) of the Criminal Code, could be treated as a second or subsequent offence when an adult charge was considered, provided the adult conviction occurred within the “access period” under s. 119 of the YCJA. The case was distinguishable because Kumi’s offence as a youth was for first-degree murder using a firearm and not for a s.  95 breach of the Criminal Code. He had not been charged previously under Code s. 95(1).

Instead, the trial judge focused on the appropriate range of sentences set out in R. v. Graham, 2018 ONSC 6817 and concluded that the prohibited firearm offense, coupled with another criminal act, would ordinarily elicit a three- to five-year term. However, considering Kumi’s history, an almost unbroken string of offences since he was fifteen, warranted an increase to serve the goals of denunciation and deterrence. The sentence was in line with a six-year sentence for a 19-year-old who committed a concealed handgun offence with similar YCJA prior offences (R. v. Owusu, 2019 ONCA 712).

The second objection on appeal concerned the reduction of pretrial custody, especially while serving time under extreme conditions. During the 680 days in jail awaiting trial, he was in lockdown for 147 days and in overcrowded cells for 124 days. This created a hostile and stressful environment for detainees, conditions cited in R. v. McEwan, 2023 ONSC 1608 as “bordering on inhumane.”

The trial judge reduced the sentence by 36 months in line with the R. v. Summers, 2014 SCC 26 decision that allows for a deduction of 1.5:1 credit for time spent in pretrial custody. However, the trial judge did not include what has been called a Duncan credit when prison conditions are harsh. R. v. Duncan, 2016 ONCA 754 has been explained in R. v. Marshall, 2021 ONCA 344 as analytically distinct from Summers. A Summers credit results in a deduction of time from the time left to serve on a sentence. A Duncan credit recognizes that harsh conditions can be considered to mitigate the appropriate sentence.

The trial judge accepted the Crown’s submission that a global sentence of seven and a half years was appropriate and a further deduction for a Duncan credit would result in an unfit sentence and diminish the importance of maintaining the principles of denunciation and deterrence.

The trial judge applied the correct sentencing principles, and deference must be shown in the judge’s calculation.

As a result, the Ontario Court of Appeal granted leave to appeal the sentence but ultimately dismissed the appeal. However, prospective appellants will likely consider the decision carefully in the new year.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.   

Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.