Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240226 DOCKET: C69315

BEFORE: Fairburn A.C.J.O., Rouleau and Trotter JJ.A.

BETWEEN: His Majesty the King, Respondent and Andrew Slapkauskas, Appellant

COUNSEL: Andrew Slapkauskas, acting in person Amy Ohler, appearing as amicus curiae Frank Au, for the respondent

HEARD AND RELEASED ORALLY: February 7, 2024

ON APPEAL FROM: the sentence imposed by Justice Brian W. Abrams of the Superior Court of Justice on January 15, 2021.

Reasons for Decision

[1] The appellant pled guilty to manslaughter and flight from police. He received a global sentence of 14 years, less credit of 929 days (calculated at 1.5:1 for time detained) collectively in provincial jails, and 427 days (calculated at 1:1 for time detained) in Providence Continuing Care Hospital. For the time detained in Providence Continuing Care, the sentencing judge gave very brief reasons for departing from R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, credit as follows:

PCC is a modern hospital in which, by the offender’s own admission, he is receiving treatment for his substance abuse issues and his mental health issues.

[2] Amicus argues that the trial judge erred by failing to grant Summers credit at 1.5:1 for the time detained at Providence. Amicus says that this fails to acknowledge the quantitative rationale for crediting time detained in presentence custody at 1.5:1 to align it with earned remission after being sentenced. This sets up a concerning situation where those who face mental health and/or substance abuse challenges can, in effect, end up serving longer sentences simply because of where they are detained prior to sentence.

[3] The Crown respondent acknowledges that the sentencing judge gave insufficient reasons to justify the departure from enhanced credit in this case. We agree.

[4] While we note that this court has previously addressed a similar issue in R. v. J.W., 2023 ONCA 552, leave to appeal to S.C.C. requested, 40956, [1] J.W. is factually distinct from this case. We see no basis on the factual record of this case that would justify not giving credit at 1.5:1 for the time the appellant was detained at Providence Continuing Care Hospital.

[5] We thank both counsel for their very helpful submissions. Leave to appeal sentence is granted. The appeal is allowed and the appellant will be credited an additional 214 days toward his sentence.

Fairburn A.C.J.O.

Paul Rouleau J.A.

G.T. Trotter J.A.

Footnote

[1] At the time these reasons were delivered orally, leave to the Supreme Court of Canada was requested. Leave to appeal was subsequently granted by the time of publication of these reasons: 40956 (February 15, 2024).