Corrected decision: The text of the original judgment was corrected on August 15, 2022, and the description of the correction is appended.

COURT OF APPEAL FOR ONTARIO

DATE: 20220729 DOCKET: C67167

Roberts, Paciocco and Favreau JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Patrick Schlaepfer Appellant

Counsel: Paul J.I. Alexander, for the appellant Allyson Ratsoy, for the respondent

Heard: June 27, 2022

On appeal from the sentence imposed on June 25, 2019 by Justice Edward J. Koke of the Superior Court of Justice.

REASONS FOR DECISION

Overview and factual background

1This sentence appeal turns on the sentencing judge’s assessment of the mitigating effect of the appellant’s interim judicial release conditions on his sentence, as required in accordance with R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.) (“the Downes credit”).

2The appellant was detained beginning on March 13, 2016 and released from custody on interim judicial release on May 17, 2016 (“pre-sentence custody”). On February 26, 2018, the appellant pled guilty to one count of production of a Schedule II substance, namely, marijuana, in relation to a substantial grow operation on a property that he owned and leased to tenants.

3On June 25, 2019, the appellant was sentenced to 14 months in custody, less 4.2 months of credit for both pre-sentence custody and hardships related to health concerns while in custody.

4More specifically, the sentencing judge granted 3.2 months of credit on a 1.5:1 basis for the length of time the appellant spent in pre-sentence custody prior to interim judicial release before his guilty plea.

5In addition to the 3.2 months of credit for time spent in pre-sentence custody, the sentencing judge further reduced the appellant’s sentence by one month in accordance with R. v. Duncan, 2016 ONCA 754. The appellant had experienced onerous incarceration conditions while in pre-sentence custody due to his difficulty in receiving necessary and timely medical and dental treatment. The sentencing judge accepted that “the reduction in the daily dose of methadone from 65 milligrams to 30 milligrams caused [the appellant] to experience significant and painful withdrawal symptoms accompanied by profuse sweating and significant weight loss”. He also accepted that the appellant’s dental problems were left untreated and that “[t]he chip[ped tooth] caused his gums to become infected and, as a result, he suffered a significant degree of pain”.

6However, the sentencing judge determined that no reduction should be made to the appellant’s sentence in relation to the conditions of his interim judicial release pending sentence. First, he concluded that the delays which were experienced in moving this matter to conclusion were occasioned almost exclusively by the appellant. The sentencing judge highlighted the appellant’s delay in calling a representative from Central North Correctional Centre (“CNCC”) to testify about his care while in pre-sentence custody and the delay in the appellant entering his guilty plea “on the eve of his scheduled trial”. Second, the sentencing judge found that the appellant “was able to obtain appropriate medical services” and was given “a clean bill of health” with only some exceptions. Third, “it was always open to [the appellant] to apply to the Court to amend the terms of his recognizance. He did so on two occasions, and the Crown cooperated.” [1]

7With the 4.2 months of credit granted by the sentencing judge, the net custodial sentence left to serve was 9.8 months.

8The Crown concedes that the sentencing judge made a calculation error and that 99 days rather than 96 days of pre-sentence custody should have been awarded on a 1.5:1 basis but submits that the appeal should otherwise be dismissed.

Issues

9The disposition of this appeal turns on the sentencing judge’s denial of the Downes credit. It is not necessary to deal with the other grounds of appeal because we agree that the 14-month sentence was fit in the circumstances of this case and the Crown has conceded that the sentencing judge miscalculated the appellant’s pre-sentence custody.

10The appellant submission that the sentencing judge erred by failing to grant any Downes credit in reduction of his sentence is based on the following alleged errors: the trial judge’s attribution to the appellant of the delay leading up to sentencing; the trial judge’s misapprehension of the evidence concerning the appellant’s medical issues and access to treatment; and the trial judge’s error in holding that the appellant should have sought a bail variation.

11The appellant contends that he suffered punitive conditions for more than two years while on interim judicial release because he was unable to obtain consistent medical treatment until April of 2018. As a result, this court should reduce his sentence to one of time served. Alternatively, this court should substitute up to a 90-day intermittent sentence.

12We agree that the sentencing judge’s Downes credit analysis was materially flawed by legal error and palpable and overriding error. We therefore allow the appeal and, including the additional three days at a 1.5:1 basis, we reduce the appellant’s sentence by an additional 5 months.

Analysis

13As this court recognized in Downes, at paras. 33-37, time spent under stringent bail conditions must be taken into account as a relevant mitigating circumstance on sentence. While the amount of credit to be given for time spent on bail is within the discretion of the sentencing judge, a number of factors must be considered in the assessment. It is therefore inappropriate to adopt a rigid formula because there can be a wide variation in bail conditions.

14In sentence appeals, appellant courts must show substantial deference to the sentences imposed by sentencing judges. Appellant interference is warranted if the sentencing judge has committed an error in principle, failed to consider or overemphasized a relevant factor, or if the sentence is demonstrably unfit: R. v. Ijam, 2007 ONCA 597, 226 C.C.C. (3d) 376, at para. 13. Appellate courts may interfere with the discretionary determination of Downes credit if the sentencing judge placed undue emphasis on the bail conditions as a mitigating factor or if there is a lack of evidentiary foundation to support the sentencing judge’s findings: R. v. Dodman, 2021 ONCA 543, at para. 10.

(i) Delay

15Starting first with the question of delay, the evidence does not support the sentencing judge’s conclusion that the delays were occasioned almost exclusively by the appellant.

16With respect to the largest period of delay, the sentencing judge should not have faulted the appellant for delaying the case in order to call an important witness. The Crown took the position that no opinions in the appellant’s CNCC medical records could be admitted unless a witness attended for cross‑examination. In response, and through no fault of the appellant, this delay was caused by difficulties in having a CNCC representative respond to the appellant’s subpoena, attend with the appellant’s medical records, and testify about the appellant’s lack of medical and dental care in pre-sentence custody. The failure of the custodial institution to provide adequate medical and dental care was a crucial issue for the appellant on sentencing and resulted in a month’s sentence reduction being granted by the sentencing judge.

17Moreover, the delay in this case was not a proper basis to deny enhanced credit for the time spent in pre-sentence custody. The delay did not constitute the kind of wrongful or bad conduct on the part of the appellant that has been identified as a basis for limiting enhanced credit for pre-sentence custody. Such wrongful conduct includes, for example, bringing many frivolous motions in advance of the trial: see R. v. Codina, 2019 ONCA 986, at para. 3.

18Neither the appellant’s application under the Canadian Charter of Rights and Freedoms nor the timing of his guilty plea could be seen as wrongful or bad conduct that would warrant limiting enhanced credit for pre-sentence custody. It was an error in principle for the sentencing judge to rely on the appellant’s legitimate exercise of his rights to deny him enhanced credit on sentencing.

(ii) Misapprehension of the evidence

19The evidence does not support the sentencing judge’s conclusion that the appellant’s release conditions were not onerous because he received appropriate medical care for his complex medical issues. The unchallenged evidence was that in moving to Sudbury to reside with his surety, the appellant left his established treatment team behind in Guelph. He did not receive adequate, ongoing medical care between 2016-2018, and his health did not significantly improve until 2018 when he was diagnosed with fibromyalgia by a specialist in internal medicine. Only after this time was the appellant referred to the regular care of a nurse practitioner in Sudbury. Until the appellant received adequate care in 2018, the uncontroverted evidence is that he continued to suffer chronic and untreated widespread pain, mental fog, memory lapses, blurred vision, hearing problems, and emaciation.

(iii) Amendment of interim judicial release conditions

20The sentencing judge erred in denying enhanced Downes credit on the basis that the appellant should have sought an amendment of his interim judicial release conditions to change the curfew conditions. The sentencing judge indicated that the appellant could have sought an amendment to permit the appellant to travel overnight to Guelph to obtain medical treatment from his former medical team.

21While the Crown consented to two amendments to the appellant’s release conditions with respect to his curfew, it refused to consent to an overnight term that would have permitted the appellant to travel to Guelph alone without requiring the attendance of his elderly surety.

22The focus of the Downes credit inquiry is the impact of the conditions on the appellant: R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at paras. 107-8. The reasonableness of the conditions is not the issue. Nor does Downes credit depend upon whether the accused sought to review onerous conditions that were imposed by a court at the request of the Crown. As this court recently instructed in Joseph, at para. 114: “The relevant inquiry is whether bail conditions were punitive enough to be akin to punishment, thereby warranting mitigation. Focus should therefore be on the effect of the conditions”. Moreover, accused persons may have no choice but to agree to onerous conditions or risk pretrial detention, and resources required to conduct bail reviews are not unlimited. Put simply, it is unfair when considering Downes credit to hold accused persons solely responsible for the punitive impact of onerous conditions that a court has imposed at the request of the Crown. The trial judge therefore erred in failing to consider the impact of the conditions on the appellant.

(iv) Conclusion

23As a result, we agree that the sentencing judge erred by failing to grant any Downes credit in mitigation of the appellant’s sentence.

(v) Revised sentence

24While the amount of Downes credit to be granted is a matter of the sentencing judge’s discretion, here appellate intervention is warranted because of the sentencing judge’s reversible errors. The appellant’s lack of adequate medical care for two years and his ensuing adverse health sequelae were “punitive enough to be akin to punishment”: see Joseph, at para. 114. The sentencing judge erred in failing to address and give effect to these punitive conditions. Accordingly, it falls to this court to undertake the appropriate analysis afresh.

25We agree that the sentencing judge’s 14-month sentence was fit in the circumstances of this case. The appellant takes no issue with the Duncan credit of one month, and the parties agree that the pre-sentence custody credit should have been 99 days at a 1.5:1 basis. As a result, our focus is on the additional Downes credit that should have been granted.

26We agree that the appellant’s unstable and untreated complex medical condition during a two-year period while on interim judicial release amounted to punishment that should mitigate his sentence. However, in our view, the 9.8‑month credit sought by the appellant is “so excessive as to be unreasonable” and unwarranted in the circumstances of this case: Joseph, at para. 112. A further 5-month credit, including the additional three days at a 1.5:1 basis, should be granted.

Disposition

27The appeal is therefore allowed, and the sentence is set aside. We substitute a net sentence of 4.8 months (i.e., 4 months and 24 days) from the original sentencing date.

“L.B. Roberts J.A.”

“David M. Paciocco J.A.”

“L. Favreau J.A.”

Erratum

Correction made on August 15, 2022: in para. 27, “4.8 months remaining to be served” was replaced by “4.8 months (i.e., 4 months and 24 days) from the original sentencing date”.

1The appellant had also submitted that he had no access to a cell phone which made it difficult for him to lead a normal social life. The sentencing judge’s fourth reason for denying the Downes credit in response to the appellant’s submission was that there was no evidence that the appellant did not have access to a telephone at his surety’s house where he resided. The appellant did not renew this submission in oral argument on appeal.