In the recent case of R v Fiddes, 2019 ONCA 27 the Court of Appeal re-affirmed that violence suffered while in pre-sentence custody can be held as mitigating on sentence.
If your client has been assaulted or otherwise sustains injuries while in custody, this is another case to have in your arsenal if the case proceeds to sentencing.
Counsel really has a responsibility to argue for enhanced credit (ie. qualitative enhancement beyond 1.5) in cases where his/her client has experienced particular harshness and is able to put that harshness into evidence. In other words, Defence has a duty to create a record of that harshness.
As the ONCA stated at para 8:
"Concerning sentence, we accepted the appellant's submission that, in the particular circumstances of this case, the trial judge erred by failing to consider, as a mitigating factor on sentence, the serious injuries the appellant suffered as a result of being beaten while in pre-sentence custody. Although the trial judge noted that the appellant had been injured while in custody, she did not enumerate his injuries (four broken ribs, two punctured lungs, a brain injury); nor allude to their serious nature (life threatening). These injuries had a significant impact on the appellant and warranted serious consideration on sentencing. Given their passing mention in her reasons, we are unable to accept the Crown's submission that it is implicit in the trial judge’s reasons that she gave the fact of the injuries any mitigating effect."
This particular case came to my attention via Counsel Chris Rudnicki. He is a talented Defence Counsel and a must-follow on the twittersphere.