Introduction

1On April 8, 2020, the accused pled guilty to several offences stemming from incidents that occurred on October 30, 2019. These included Assault Police, Breach of Probation for failing to keep the peace and be of good behaviour, Uttering Threats to kill and threats to family members, Attempt Theft of a motor vehicle and Mischief. The Crown seeks a sentence of 15-18 months jail less presentence custody, 12 months probation, a DNA order and a s. 110 weapons prohibition order for 10 years. The defence takes no issue with the ancillary orders sought by the Crown and argues that a sentence of 9-12 months would normally be reasonable in the circumstances. However, counsel for the defence submits that, given the current COVID-19 situation, the sentence ought to be reduced to time served. In addition to their oral submissions at the sentencing hearing, both counsel provided COVID-19 materials electronically following the hearing.

Circumstances of the Offence

2The accused was convicted of assault and breach of probation on October 4, 2019. In addition to imposing a sentence of 6 months (essentially the accused's presentence custody at the time), Justice Bliss placed him on probation. The accused was also the subject of a 2-year probation order imposed on March 9, 2018.

3On October 30, 2019, the accused attended the residence of a homeowner around 7 am. He attempted to steal her car but, upon realizing that he could not operate a manual vehicle, the accused began to leave on foot. A discussion ensued between the homeowner and the accused where he told her that he would shoot her and her family. The accused was unknown to the homeowner. The police were called.

4Around 9 am the same day, the accused attended the Barrie bus terminal. While there, he began yelling nonsense about Trinidad. He was asked by the security guard to keep his voice down. The accused told the security guard "fuck off my nigger". The security guard opened the doors and asked the accused to leave. While leaving, the accused knocked the security guard's phone to the ground and damaged it. The police located the accused outside the bus terminal and arrested him for offences pertaining to both incidents.

5While in the cell block of the Barrie Police Service, the accused became agitated while being escorted. He told police that he would spit on them. A spit hood was placed over his head. The accused managed to spit through an open portion of the spit hood striking a police constable on the left side of his face.

6The accused advised that he was under the influence of drugs at the time of these incidents.

Circumstances of the Offender

7The accused is 24 years old. He is non-status Ojibway through his maternal lineage. An aboriginal backgrounder report dated July 28, 2017 was filed. A previous attempt to prepare a formal Gladue report was unsuccessful as Aboriginal Legal Services were unable to sufficiently confirm the accused's heritage due to his mother being adopted out to a non-Indigenous family. According to this report, the accused has a 6-year-old daughter.

8The accused was exposed to verbal and physical abuse by both parents while growing up. His mother left the home when he was 12 years old. The accused was placed into the care of the Children's Aid Society due to his mental health and behavioural issues. His siblings were not, and he lost contact with them. He became a Crown ward and was placed with three different groups. At the ages of 10 and 13, the accused was sexually abused by two different males.

9The accused has been diagnosed with ADHD and anxiety. He has seen a psychiatrist and had counselling in the past. The accused struggled in school. He is illiterate but managed to complete his grade 9. This has impacted his ability to obtain employment. His income source is ODSP.

10The accused has been involved with drugs since he was 14. He has used opiates, heroin and crack cocaine. His mental health issues and addiction struggles have led him to become involved in the drug subculture as well as the criminal justice system. According to the aboriginal backgrounder report, the accused has Hepatitis C.

11After being sentenced in October of 2019, the accused moved in with a family friend. This residence afforded him some much-needed stability until it was no longer workable. On October 30, 2019, the accused found himself on the streets and had turned to using drugs again.

12The accused has a criminal record which commences in youth court in Peterborough in 2010 and continues with very little interruption until 2019. The 5-page criminal record contains 62 convictions including numerous related convictions for assault, failing to comply with court orders, thefts, and uttering threats. On his last assault conviction in 2019, the accused received a sentence of 6 months jail. On his last uttering threats and breach of probation convictions in 2018, he received 150 days jail.

13Appearing in court by video link, the accused expressed his fear and concern about being in jail during the COVID-19 pandemic. In particular, he stated that all it takes is for one person to get it and the whole jail is "circled in". He sees guards wearing masks and wonders if the virus is already there. The accused stated "my life is at risk. I don't want to die in jail. I worry about my family". The accused added that he wants to get help from counsellors. His plan is to leave Barrie and move to Orillia where he expects to live in a shelter until he can get on his feet. In terms of community support, the accused has re-connected with his mother and continues to be supported by the CMHA and the Aboriginal Legal Services or Native Friendship Centres.

14The accused has been in custody at the Central North Correctional Centre ("CNCC") since the date of his arrest. He has a total of 168 days of presentence custody (to April 14, 2020 inclusive) on a 1:1 basis or 5.5 months. Both parties agree that, at a minimum, this ought to be enhanced on a 1:1.5 basis equating 252 days or 8.2 months. The defence argues for a further COVID-19 credit to be granted.

Victim Impact

15The security guard advised the Crown that he does not fear for his safety and that he was just doing his job. The accused damaged his work phone which was the property of his employer. He does not know the cost of the damage.

16The homeowner advised the Crown that the incident occurring at her home caused her to fear for her and her child's safety. She stopped allowing her child to walk unaccompanied to her school bus stop. Since having moved from that address, the homeowner no longer feels like she is living in a bubble, but still feels unsafe and is wary of people around her.

General Sentencing Principles

17 Section 718 of the Criminal Code states that the fundamental purpose of sentencing includes (a) the denunciation of unlawful conduct, (b) the deterrence of the offender and other individuals from committing offences, (c) separating the offender from society where necessary, (d) assisting in the rehabilitation of the offender, (e) providing reparation for harm done to the victims or the community and (f) promoting a sense of responsibility in offenders and an acknowledgment of the harm done to victims or the community.

18 Section 718.1 states the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

19In addition, s. 718.2 outlines the mitigating and aggravating factors that may increase or reduce a sentence in the appropriate circumstances. Section 718.2 also addresses the principles of parity, totality and restraint in sentencing.

20 Section 718.2(e) imposes a statutory duty on sentencing judges to consider the unique circumstances of Indigenous offenders.

21"Sentencing ranges are used mainly to ensure the parity of sentences, they reflect the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered 'averages', let alone straightjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case." [R. v. Lacasse, 2015 SCC 64, ¶ 57]

Sentencing Principles in COVID-19 Cases

22Most recently courts have been attempting to assess and quantify the impact of COVID-19 and its precautionary measures on accused in custodial settings.

23One of the first cases to do so was R. v. J.S., a bail review application, where Justice Copeland commented as follows: "[T]he greatly elevated risk posed to detained inmates from the coronavirus…must be considered". And"based on current events around the world, and in this province, that the risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able to self-isolate at home. The virus is clearly easily transmitted, absent strong social distancing or self-isolation, and it is clearly deadly to a significant number of people who it infects. The practical reality is that the ability to practice social distancing and self-isolation is limited, if not impossible, in an institution where inmates do not have single cells." Justice Copeland noted that this factor concerns not only an accused's "own health, but also the preservation of scarce hospital resources to treat patients. If more people are infected, those resources will be more strained". She further stated "I am not suggesting any failure of the correctional authorities to take appropriate steps to attempt to keep inmates healthy, and to attempt to limit the spread of the virus".

24Her concerns and comments have been repeated in several subsequent cases. They have led to the creation of an Open Letter from the Medical Professions to Canadian Federal, Provincial and Territorial Governments dated April 6, 2020 urging the governments to implement drastic measures to protect all Canadians including those in detention. Further, they are in line with the preamble of the World Health Organization's March 15, 2020 (Europe) report "Preparedness, Prevention and Control of COVID-19 in Prisons and Other Places of Detention: Interim Guidance".

25It is generally undisputed that the COVID-19 pandemic constitutes a material change in circumstances to be considered at bail reviews and sentencing hearings. Some cases suggest that a stronger evidentiary foundation than what was established in J.S. is required in order to apply any type of COVID-19 consideration. This may include "medical evidence that demonstrates the defendant's heath concerns are real, significant and would result in him being at higher risk for contracting COVID-19 or suffering more serious consequences".

26Other cases, however, have rejected the requirement to have specific evidence as to the effects of COVID-19 on an accused stating that these factors are "obvious to a certain degree" and courts can take judicial notice of them.

27In terms of calculating COVID-19 credit on sentencing, courts have taken different approaches. Some have simply reduced the "close" cases down to time served. This notion of applying a credit in "close calls" has been adopted by several courts both in bail review and sentencing cases. In non-time served situations, some courts have accounted for it by imposing a more lenient sentence. Other courts have included a COVID-19 credit as part of the credit received for "harsh pre-trial conditions". Finally, some courts have attributed a specific time credit for time spent incarcerated during COVID-19 since March 13, 2020.

Position of the Parties

28The Crown argues that a sentence of 15-18 months less presentence custody is appropriate. In the span of several hours, the accused caused significant fear to several innocent victims. He threatened the homeowner and her family at her place of residence and the security guard and police officer at their place of employment. Places where these individuals ought to feel safe. The language he used with the security guard was "disgusting and unacceptable". The spitting on the police officer's face is particularly troubling especially when one considers the spread of viruses and bacteria in this COVID-19 age. With respect to any COVID-19 credit, the Crown relies on the April 6, 2020 Information Note re: Institutional Services Responses to COVID-19 which summarizes the measures implemented by the institutions to keep inmates safe and notes that only 4 inmates have tested positive in Ontario jails as of April 3, 2020. There are none at CNCC. The Crown argues that the defence has not presented any evidence of an increased risk or susceptibility by the accused regarding potential COVID-19 ramifications if he remains in custody. Lastly, the Crown submits that if the court intends to apply any COVID-19 credit, it ought to adopt the approach of Justice Pringle in R. v. King.

29The defence submits that a sentence of 9-12 months less presentence custody would normally be appropriate. Counsel for the defence urges the court to apply a COVID-19 credit reducing the sentence to one of time served in the circumstances. She argues that the Crown's position is over double and almost triple the previous sentences the accused has received. The current COVID-19 situation has resulted in harsher conditions for inmates including additional lockdowns, lack of staff, limited access out of cells, limited access to showers and more stress on inmates particularly exacerbating on those with mental health issues. The defence argues that the court can take judicial notice of this and disagrees that specific evidence of impact on the accused is required. The defence does not dispute the aggravating features noted by the Crown. The mitigating factors, however, include the accused's plea, his extremely difficult upbringing and resulting challenges, the Gladue considerations and his willingness to embark on treatment for these challenges.

Analysis and Sentence

30I find the following to be aggravating factors:

The impact of the offences on the victims. The homeowner continues to be affected including being wary of strangers, vigilant of her child's movements and having a heightened awareness of her surroundings. The security guard was the subject of racial slurs. The police officer was subjected to a particularly degrading and disgusting form of assault. This is further aggravated by the fact that the accused is positive for Hepatitis C. The irony that the accused now seeks a COVID-19 credit for early release for an offence where he spat on another human being while having a transmittable disease is not lost on me.
The accused has a lengthy and related criminal record. It is uninterrupted from 2010 – 2019. It contains numerous offences of assault, uttering threats and breaches of court orders.
The accused was bound by 2 probation orders at the time of these offences. He had been out of custody for less than 1 month when he committed these offences.

31I find the following circumstances to be mitigating:

The accused has pled guilty which is an acceptance of responsibility and an indication of remorse. I give him credit for his plea, particularly when one considers the inherent uncertainties and the costs associated with a trial.
The accused's difficult, abusive and unstable upbringing. There is no doubt that these factors have contributed to the accused's mental health issues, substance abuse, and involvement in the criminal justice system. The accused clearly has difficulties making pro-social choices and maintaining a pro-social life.
Pursuant to s. 718.2(e), I apply the Gladue principles in this regard. This is relevant to the accused's moral blameworthiness for the offences. As noted by the Court of Appeal in R. v. Kreko and R. v. Martin, the accused has suffered a "dislocation and loss of identity" which can be traced "to systemic disadvantage" extending back to the adoption of his mother by non-Indigenous parents. I consider the "intergenerational dislocation and systemic trauma" as part of his background.
To a limited extent, the accused's apparent insight and willingness to undergo treatment/counselling and relocate to a more supportive community in order to address the issues that have brought him to court. Given his criminal record to date and the numerous probation orders he has received, the accused has yet to show a meaningful intention to follow through on this.

32In determining what, if any, COVID-19 credit ought to be given, I adopt the comments of Justice Copeland in J.S. Further, I find that it is not necessary for the accused to provide me with "medical evidence that demonstrates the defendant's heath concerns are real, significant and would result in him being at higher risk for contracting COVID-19 or suffering more serious consequences". The accused has clearly been impacted by the COVID-19 measures implemented at CNCC. I accept that his fear of contracting it while in custody is real.

33This factor must, of course, be balanced with the other sentencing principles. The sentence imposed cannot bring the administration of justice into disrepute or be contrary to the public interest. Bearing these principles in mind, when I consider the circumstances of the offences, the circumstances of the accused, and the aggravating and mitigating factors that exist in this case, I would have sentenced the accused to 10 months jail (or 304 days) broken down as follows: 6 months on the Assault; 1 month concurrent on the Breach of Probation; 3 months on the Uttering Threats and Attempt Theft (concurrent to one another but consecutive to the Assault count); and 1 month consecutive on the Mischief charge. Upon deducting his enhanced pretrial custody of 252 days or 8.2 months, the accused would have had 52 days or 1.7 months left to serve. However, given my comments regarding the COVID-19 concerns, I find that the appropriate sentence, in these unique times, is a sentence of 1 day in addition to 8.2 months or 252 days of presentence custody (168 days enhanced at 1:1.5). This sentence will be concurrent on all charges.

34As previously noted, the accused is currently bound by a probation order with what I presume contains several conditions to assist in his rehabilitation. For this reason, as per counsel's joint submission, I will impose a non-reporting probation order for 12 months with only the following terms:

Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means, with: (1) the homeowner or any members of her family; (2) the security guard or (3) the police officer EXCEPT: (a) in the presence of or through legal counsel; (b) during the course of the police officer's employment and; (c) with respect to the security guard, only while attending the Barrie bus terminal for the purpose of travelling by bus.
Do not be within 100 metres of any place where you know those persons to live, work, go to school, frequent or any place you know them to be EXCEPT: (a) for required court attendances; (b) in the presence of or through legal counsel; (c) during the course of the police officer's employment or while at the Barrie Police Service for the purpose of complying with this order and; (d) with respect to the security guard, only while attending the Barrie bus terminal for the purpose of travelling by bus.

35In addition, I make the following ancillary orders:

An order authorizing the taking of a DNA sample. The Assault Police and Uttering Threats are secondary designated offences under s. 487.04. Prior to September 30, 2020, the accused will have to attend at the Barrie Police Service located at 110 Fairview Road, Barrie between the hours of 9 am – 3 pm for the purpose of providing a suitable sample of his DNA to be placed in the DNA databank.
A s. 110 weapons prohibition order for 10 years.

Released: To the parties on April 13, 2020 and in court on April 14, 2020.

Justice Cecile Applegate

R. v. Dakin, 2020 ONCJ 202

Case Summary

Introduction

Circumstances of the Offence