Court of Appeal for Ontario
Hoy, Trotter and Paciocco JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Chad Reddick
Appellant
Counsel:
Chad Reddick, appearing in person
Anthony Moustacalis, appearing as duty counsel
Michael Fawcett, for the respondent
Heard: December 7, 2020 by video conference:
On appeal from the sentence imposed on June 26, 2020 by Justice Mary Teresa E. Devlin of the Ontario Court of Justice.
REASONS FOR DECISION
1Chad Reddick pled guilty to robbery and using an imitation firearm while committing an indictable offence. During the robbery, he passed off the imitation firearm as a real firearm and held it to the head of the lone convenience store clerk. This was an extremely serious offence committed by a 33-year-old man with a significant, albeit largely non-violent, criminal record.
2The sentencing judge determined that, in the circumstances, a two-year sentence was the "least restrictive" fit sentence that could be imposed for the robbery, to be followed by the one-year mandatory minimum sentence for the firearm offence. She allocated 12.5 months of credit for pre-sentence custody, including a 30 day "credit" for the hardship caused by 17 days of lockdown that Mr. Reddick experienced while awaiting trial. The credit that the sentencing judge allocated reduced the global custodial sentence remaining to be served to 23.5 months.
3When the Crown realised that the sentence imposed would not exceed two years, thereby making an accompanying probation order lawful pursuant to s. 731(b) of the Criminal Code, the Crown requested a 12-month non-reporting probation order to prevent Mr. Reddick from attending at the store he had robbed. The sentencing judge granted the probation order.
4Mr. Reddick, who was ably assisted by duty counsel, appeals the sentence imposed, claiming:
- The sentencing judge erred in applying the Gladue principles;
- The sentencing judge erred by failing to pay attention to the sentencing objective of rehabilitation;
- The sentence should be reconsidered because of changes in circumstances, specifically:
- The change in the law after R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209, leave to appeal requested, [2020] S.C.C.A. No. 311, which Mr. Reddick contends makes a conditional sentence possible for the robbery conviction; and
- The high frequency of lockdowns Mr. Reddick has experienced since the sentence was imposed.
5Although we accept and commend Mr. Reddick's remorse and his commitment to change so that he can lead a prosocial life with his family going forward, we must dismiss his sentence appeal.
6With respect to the Gladue principles, duty counsel argued that: (1) the sentencing judge failed to appreciate or account for the fact that Mr. Reddick's inability to provide specific information about his Aboriginal ancestry may be attributable to the dysfunction in his extended family caused by colonialism, and (2) that she erred by requiring proof of a direct link between his Aboriginal ancestry and his crime.
7In our view, the sentencing judge did neither of these things. Despite the fact that Aboriginal Legal Services declined to provide a Gladue report because Mr. Reddick and his family members lacked specific information about his Aboriginal ancestry, or evidence of how his Aboriginal ancestry affected Mr. Reddick's life, the sentencing judge accepted that Mr. Reddick was Indigenous and drew on relevant information in the presentence report in order to comply with s. 718.2(e). She identified and considered Mr. Reddick's childhood trauma and its link to his addiction and psychological issues, and expressly confirmed that she was imposing a "low-end" sentence on Mr. Reddick because of Mr. Reddick's Indigenous ancestry and his displacement from his culture. She applied the Gladue principles appropriately and sensitively.
8Nor do we agree that the sentencing judge failed to pay adequate attention to rehabilitation. She included "rehabilitation" when describing the sentencing objectives that she was required to consider, and she reaffirmed the importance of restorative sentencing for Indigenous offenders. She ultimately rejected the rehabilitative sentence that Mr. Reddick proposed precisely because that sentence did not respect the primary sentencing objectives of deterrence and denunciation that apply to the offences he committed. She also encouraged Mr. Reddick to pursue his links to his Aboriginal community, a clear invitation to assist in his rehabilitation. Simply put, the sentencing judge considered rehabilitation, and made an appropriate decision to give priority to denunciation and deterrence in the sentence she imposed.
9We must also reject Mr. Reddick's request that we reconsider his sentence because of changes in circumstances.
10Even if we were to accept Mr. Reddick's submission that after the Sharma decision a conditional sentence may be imposed on a robbery conviction where a weapon is involved, we cannot reconsider his sentence on this basis. First, we can find no error by the sentencing judge that would permit us to resentence Mr. Reddick using this "new" sentencing tool. Second, pursuant to s. 742.1 of the Criminal Code, a conditional sentence cannot be imposed unless the accused is being sentenced to less than two years of imprisonment. The trial judge determined that the least restrictive sentence she could impose was two years. We see no basis for interfering with this determination. Therefore, even if conditional sentences are available for robberies committed with weapons, a conditional sentence is not an eligible sentence in this case.
11Nor can we resentence Mr. Reddick based on the frequent lockdowns that have occurred since he began serving his sentence. We do not take issue with Mr. Reddick's position that the lockdowns are likely COVID-19 related, and we accept that hardship arising from lockdowns can qualify as a collateral consequence that warrants consideration during sentencing: R. v. Morgan, 2020 ONCA 279, at para. 9. However, in setting Mr. Reddick's sentence, the sentencing judge already took into account that "serving a sentence in jail is more difficult now, due to the current Covid-19 pandemic and the inability of a jail to offer the types of physical distancing and other safety measures recommended by the health professionals to protect against the virus."
12Put otherwise, the sentencing judge already allowed for the impact that Covid-19 would likely have on the hardship of the sentence she imposed. We are not satisfied on the evidence before us that circumstances have changed to the point where we should give additional credit.
13The appeal is therefore dismissed.
"Alexandra Hoy J.A." "Gary Trotter J.A." "David M. Paciocco J.A."
