minicounsel

ONTARIO COURT OF JUSTICE DATE: 2022 04 07 COURT FILE Nos.: 20-0665, 20-1551 21-0162, 21-0588, 21-1520

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TYSON KENNEDY

Before Justice J.R. Richardson

Heard on March 10, 2022

Reasons for Sentence released on April 7, 2022

Counsel: Teresa James................................................................. Counsel for the Provincial Crown Timothy McCann ............................................................... Counsel for the Federal Crown Jason Gilbert................................................... Counsel for the accused Tyson Kennedy

INTRODUCTION

1This case is about Duncan credit for lockdown conditions as a result of COVID-19.

FACTS

2On March 1, 2022 Tyson Kennedy entered guilty pleas before me on the following offences:

(a) That he did, between the 27th day of June and the 2nd day of December, 2019 by deceit, falsehood or other fraudulent means, defraud GOA Paving (William Prahl) of $49,424.40 contrary to section 380(1)(a) of the Criminal Code;

(b) That he did, on or about the 9th day of February, 2021 have in his possession property of a value not exceeding $5000 that was obtained by a crime contrary to section 354(1)(a), contrary to section 354(1)(a) of the Criminal Code;

(c) That he did on or about the 16th of May, 2021 possess Fentanyl for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act;

(d) That he did, on or about the 16th of May, 2021 breach the curfew condition of his release order contrary to section 145(5)(a) of the Criminal Code;

(e) That he did, on or about the 16th of May, 2021, operate a motor vehicle while impaired by alcohol or a drug contrary to section 320.14(1)(a) of the Criminal Code;

(f) That he did, on or about the 3rd day of December, 2021 breach the residence term of his release order by not residing at the Anchorage Program contrary to section 145 of the Criminal Code;

(g) That he did, on or about the 8th and 19th days of October, 2021 fail to attend court contrary to section 145 of the Criminal Code.

(h) That he did on or about the 14th day of November 2020 steal property from Giant Tiger of a value not exceeding $5000 contrary to section 334(b) of the Criminal Code.

Fraud Over – 27 June 2019 to 2 December 2019

3On the dates in question, the accused was an employee of GOA Paving. He was given a credit card for his use for work-related purposes. He charged $49,424.40 on the card for personal expenses. He did so to support a drug habit.

14 November 2020 – Theft from Giant Tiger

4Mr. Kennedy entered the Giant Tiger in Pembroke and stole grocery items and a pair of boots of a value that does not exceed $5000.

9 February 2021 – Possession of Property Obtained by Crime

5Mr. Kennedy was found in possession of some construction material stolen from a Shell Gas Station that was under construction in Cobden, Ontario.

16 May 2021 – Possession of Fentanyl for the Purpose, Breach Release Order and Impaired by Drug

6Police were responding to a call about an Impaired Driver. They saw Mr. Kennedy get in the vehicle. They then saw him get out and run. Police chased him into a residence where he was arrested for Impaired Driving and Breach of Curfew. The Police made a demand that Mr. Kennedy provide a sample of his breath into an approved screening device. He complied but the result is zero. Police then make a demand for the Standard Field Sobriety Test. They conclude from that that Mr. Kennedy was “performing poorly” and they then make a demand that he submit to further tests before a Drug Recognition Expert. The Drug Recognition Expert concludes that he is impaired by drug. Incident to his arrest for the Impaired Driving and Breach of Curfew, the Police searched the vehicle that Mr. Kennedy was operating. In the course of doing so they located 9.6 grams of fentanyl, two knives, $185, a debt list, a wallet containing Identification in the name of other people, prepaid Visa card and a blank cheque in someone else’s name.

19 October 2021 – Fail to Appear; 3 December 2021 – Breach Release Order

7Mr. Kennedy originally entered pleas before my colleague Justice M.G. March on September 9, 2021. Justice March released him on bail to attend at the Anchorage Program in Ottawa. He left the next day. He also did not attend required court dates. He was arrested on December 3, 2021 when he was involved in a domestic dispute with another person in front of the Dairy Queen in Pembroke.

Criminal Record and Circumstances of Mr. Kennedy

8Mr. Kennedy has a criminal record that begins in 2009 and ends in 2012. The record includes convictions for Mischief Under $5000, Failing to Attend Court (two convictions), Theft Under $5000 (three convictions), Failing to Comply with a Release Order (four convictions), Driving with More than 80 milligrams of alcohol in 100 millilitres of blood, Failing to Comply with a Probation Order (two convictions), Driving While Disqualified (two convictions) and Possession of a Schedule III Substance. The longest sentence behind bars that he has ever received is one of 45 days in addition to 34 days in presentence custody which he served in 2010.

9The record shows that substance abuse and theft has been an issue for Mr. Kennedy for some time. The gap in the record, however, between 2012 and 2019 would suggest that if Mr. Kennedy is able to keep his substance abuse problem in check, he can live a prosocial life.

10There is no suggestion that Mr. Kennedy will ever be able to pay restitution to his former employer.

Other Background to the Pleas

11Mr. Kennedy’s matters originally came on before me for Judicial Pretrial on August 10, 2021. At that time the parties were far apart on resolution and the matter was adjourned. There was a brief discussion of Mr. Kennedy entering pleas to some charges, setting dates on other charges and being released on bail to live at the Anchorage program.

12On September 9, 2021, pleas were entered before my colleague Justice March who, on consent, ordered the accused released to reside at the Anchorage program in Ottawa. A review of the various informations before the court establishes that, although Justice March heard the pleas, he did not make findings of guilt. Once the pleas were entered, Justice March adjourned the matter to an October date for a status check on Mr. Kennedy’s progress at the Anchorage program. Presumably the intention of the release was to allow Mr. Kennedy to seek treatment at Anchorage in mitigation of the ultimate sentence he would receive.

13On October 8, 2021, I addressed the matter in court and I was advised that Mr. Kennedy had breached the requirement to attend at the Anchorage program. Mr. Kennedy failed to appear on October 19.

14The accused was rearrested in December 2021 and eventually, the matter came on before me for further JPT on January 20, 2022. At that JPT, the Federal Crown indicated that his position was two for four years for the Possession for the Purpose charge and the Provincial Crown indicated her position was twenty months for the charges that she had carriage of. Defence counsel indicated that he would recommend a global sentence to his client of approximately 31 months additional time on top of the time served. I indicated that I would accept a joint recommendation with the following features:

a) Possession of Fentanyl for the Purpose of Trafficking – 24 months b) Fraud Over $5000 – 12 months consecutive c) Possession of Property Obtained by Crime (Cobden Shell) – one month consecutive d) Impaired Driving – one month consecutive e) Breach of Curfew – 15 days concurrent f) Assault – one month consecutive g) Breach for walking away from the Anchorage program – 90 days consecutive h) Failing to Attend Court in October 2021 – 30 days concurrent i) Simple Possession of Fentanyl – 30 days concurrent

for a total sentence of 42 months, less pre-sentence custody.

15It was understood that this position took the sentencing principles of restraint and totality, as credit in recognition of COVID-19 as a collateral factor in sentencing into account. At that point, the issue arose as to how to deal with the pre-sentence custody. Defence counsel indicated that he wanted to seek Duncan credit for pre-sentence custody given the conditions in the jail that Mr. Kennedy was said to have endured. Both the Federal and Provincial Crowns were steadfastly against Duncan credit and sought the usual Summers 1.5:1 credit. It was left that if we proceeded to pleas and sentence with this framework, the parties would argue the issue of the Duncan credit.

16I indicated that I did not have a firm position on Duncan credit for lockdowns and in the past, I had granted Duncan credit and refused Duncan credit as I felt the circumstances warranted. Defence counsel advised that he would subpoena Mr. Kennedy’s institutional records. The matter was adjourned for Defence counsel to obtain instructions from Mr. Kennedy.

17The matter was then adjourned through the balance of January, February and early March. The Justices of the Peace hearing the adjournment requests endorsed the reason for the adjournment as for Defence Counsel to obtain instructions and further resolution discussions with the Crowns.

18When the matter finally came on before me on March 10, 2022, the agreement we discussed on January 20, 2022 proceeded largely intact with the difference being that the assault charge was dealt with by Section 810 recognizance as opposed to a guilty plea and conviction and the Federal Crown withdrew the Simple Possession Charge. The sentencing position remained 42 months less time served, roughly split at 24 months for the charges that the Federal Crown had carriage of 18 months for the charges that the Provincial Crown had carriage of. I heard lengthy factual submissions on the issue of the Duncan credit.

THE ARGUMENT

Summary of Presentence Custody

19As of the date of sentencing, the accused has 237 days of pre-sentence custody, broken down as follows:

a) May 17, 2021 to September 9, 2021 – 117 actual days of Pre-Sentence Custody b) December 3, 2021 to March 10, 2022 – 97 actual days of Pre-Sentence Custody; and c) March 11, 2022 to April 7, 2022 – 23 actual days of Pre-Sentence Custody

20The Crown seeks a sentence of 42 months (1260 days) less 1.5:1 credit for the 237 days of presentence custody (356 days) for a total sentence of 904 days or just over 30 months.

21Defence seeks a sentence of 42 months (1260 days) less 2:1 credit for the 237 days of presentence custody (474 days) for a total sentence of 786 days or just over 26 months

Evidence Regarding Lockdowns Etc.

22Exhibit 2 sets out, in detail, information regarding the number of hours that Mr. Kennedy was in lock-down while he was incarcerated awaiting his sentence.

23The Crowns took the position in order to calculate Mr. Kennedy’s Duncan credit, the details set out in Exhibit 2 could be divided into “thirds” of a day, with a morning, afternoon and evening each counting for a third of a day in lockdown. Following this approach, a review of Exhibit 2 reveals that:

(a) There were 58 days where the entire institution was locked down. (b) There were five mornings where the institution was locked down (one and two thirds days) (c) There were 16 evenings where the institution was locked down (five and one third days) (d) There were 11 days where the institution was locked down both morning and afternoon (seven and one third days) (e) There was one day where the institution was locked down both afternoon and evening (one third of a day) (f) Total lockdown is 72 and two thirds days in lock down (rounded up to 73 days)

24Exhibit 2 also sets out what it means to be on lockdown in the institution. At page 2 to 3, Captain Munro noted:

A lockdown means that a corridor/unit is not unlocked due to staff shortages, maintenance issues or repairs or security concerns. The reason for the lockdown will determine if the lockdown will be the entire institution or a partial lockdown. When a corridor/unit is on lockdown, all inmates housed in the entire corridor/unit will not be unlocked as a group to have access to the dayroom, the shower, or the yard. If it is safe to do so we will still do access for inmates one cell at a time so they can have access to the shower and telephone. When the institution is not on lockdown, the access to the yards is only done in the morning and afternoon hours.

25Captain Munro also noted that for 165 days of Mr. Kennedy’s stay, he was housed in a “dorm setting”. He stated:

When an inmate is housed in a dorm setting, the lockdown would not affect the inmate as much as the inmate is housed in a dorm setting. Each dorm has one television, two phones and washroom facilities. The inmates can get up and walk around the dorm 24 hours a day and they have access to a telephone, the television and washroom facilities.

The Crowns’ Position

26The Provincial Crown noted that Mr. Kennedy was released on bail by Justice March after his plea to permit him to go to the Anchorage Centre in Ottawa for treatment. The Provincial Crown observed that Mr. Kennedy should not receive enhanced credit for the period after September 9, 2021 because he did not stay in Anchorage. The Crown suggested that the Court should temper the amount of credit Mr. Kennedy received post September 9, 2021, noting

He knew he had been detained before he entered his pleas, so he had already been in the jail; he knew what the conditions were like in the jail; COVID was already well underway by September of 2021. [1]

27While observing that there is not a straight line for a drug addicted accused between the decision to skip treatment, violate bail and find oneself back in custody in conditions of COVID-19, the Provincial Crown ultimately submitted that “Mr. Kennedy was given every opportunity to avoid that and it was his actions that resulted in that happening.” [2]

28The Provincial Crown added that the global sentence of 18 months on the Criminal Code matters is already at the extremely low end of the range and already takes into consideration the collateral consequences of COVID.

29The Federal Crown submitted that the sentence of 24 months for Possession for the Purpose of Purple Fentanyl is also on the low end of the range.

Defence Position

30Defence counsel submitted that the global sentence of 42 months (before taking presentence custody into consideration) with a split of 24 months for the matters that the Federal Crown has carriage of and 18 months that the Provincial Crown has carriage of is a joint submission. He further submitted that the “exercise of parsing out of the actuarial precision in thirds of days…. is counterintuitive to the what the custodial experience would be like, particularly in the midst of a pandemic when the institution can suddenly be thrown into lock down… at any time with no warning.” [3]

31Mr. Gilbert further submitted that the Supreme Court held that giving less Summers credit due to a breach was unconstitutional.

32He stated that incarcerated people are entitled to a minimum standard of conditions.

33With respect to the specifics of Mr. Kennedy’s situation, Mr. Gilbert observed that a review of Exhibit 2 makes it clear that “almost not a day goes by without some period of lockdown” [4] and submitted that all of Mr. Kennedy’s custodial sentence should be counted at two for one.

34Mr. Gilbert also indicated that Mr. Kennedy contracted COVID-19 while he was incarcerated, stating that “he really is one of those inmates where this is more than just a hypothetical where you know, this is what the risk is and this is what could have happened.” [5]

35Subsequent to argument, Mr. Gilbert submitted an email stating the contrary, indicating that:

I subsequently obtained my client's OCDC medical file. After reviewing the records, it shows that he did indeed receive a positive test while at OCDC. However, this was based on a sample collected May 17, 2021, which was literally the day Mr. Kennedy was first admitted to OCDC last year.

So while Mr. Kennedy did have the Covid virus while in custody at OCDC, I do not think it can be said that he actually "contracted" the virus while at OCDC. [6]

ANALYSIS

The Fitness of the Joint Submission

36There were numerous pretrial discussions in this case where I attempted to guide the parties toward the joint submission that was ultimately placed before me. The joint submission proposal was intended to be attractive to Mr. Kennedy in order to facilitate a plea. As I write this judgment, our court is grappling with huge volume as a result of the dislocation caused by COVID-19. Low, if not generous, joint resolutions are the order of the day to maximize the number of pleas and reduce the number of trials so as to remove cases from the system.

37While I am not resiling from the agreement that I helped to create, the authorities that I am familiar with in relation to the two principal charges upon which Mr. Kennedy is facing sentence – the Possession of Fentanyl for the Purpose of Trafficking and the Fraud Over $5000 – make it clear that the agreement is somewhat lenient. As I begin to explore the factors leading to the issue of what Duncan credit, if any, Mr. Kennedy should receive, it is important to review some of these authorities.

38Mr. Kennedy entered a plea to Possession of 9.6 grams of Fentanyl for the Purpose of Trafficking.

39Fentanyl is a highly addictive, powerful and dangerous drug [7]. No place, even Renfrew County, is safe from its reach. Not a day goes by where I do not preside in a case where an accused person before me is committing their offences to support their addiction to Fentanyl. Hardly a week goes by where I do not hear of an accused person being found dead where Fentanyl overdose is the suspected cause. Every dose of Fentanyl is a death sentence waiting to happen. Those who traffic it or possess it for the purpose of trafficking tie the knot of the noose and either pass the rope or are prepared to pass the rope to the hangman. Unfortunately, the substance is so addictive that the hangman is the user themselves.

40In Disher [8], Justice Gillese of our Court of Appeal sounded a note of caution with respect to sentencing cases involving Fentanyl, noting that “Caution in considering the caselaw is warranted not just because of its inchoate state but also because of the difficulties in comparing the quantities of fentanyl given the differences between patches, pills and powder”.

41In Loor [9], Justice Laskin of our Court of Appeal passed on the Crown’s invitation to establish a range of sentencing for trafficking in fentanyl. Despite that, the court stated that “it is fair to say that generally, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.”

42In Smith [10], the British Columbia Court of Appeal established the lower level of the sentencing range for those who traffic or possess fentanyl for the purpose of trafficking – even first time offenders -- at 18 months.

43In Bieber [11], my Renfrew County colleague Justice March recently found that a penitentiary sentence of 42 months (36 months after reductions for Downes credit, and COVID-19 prospective credit) was appropriate for an addicted, young, first-time offender who pleaded guilty to Impaired Operation of Motor Vehicle, Possession of Property Obtained by Crime and Possession of Fentanyl for the Purpose of Trafficking. In this case, the accused was in possession of 14.1 grams of purple fentanyl, 57.2 grams of methamphetamine, 47.4 grams of cocaine, four tablets of alprazolam, three hydromorphone pills and 76 dilaudid pills. The accused had an excellent PSR and good prospects for rehabilitation.

44In Grant [12], my colleague Justice Calsavara in Halton imposed a conditional sentence of two years less one day and three years probation for an 18 year old commercial trafficker who she found guilty (after trial) of possessing 9.5 grams of fentanyl for the purpose of trafficking, possessing 26 grams of crack cocaine for the purpose of trafficking, possessing 13.2 grams of cocaine for the purpose of trafficking, and possessing four grams of methamphetamine for the purpose of trafficking. The accused had engaged in considerable efforts to rehabilitate himself. Justice Calsavara concluded that “there are exceptional circumstances warranting a departure from a penitentiary sentence”.

45In MH [13] the accused pleaded guilty to one count of Possession of Fentanyl for the Purpose of Trafficking. He and his spouse, BB, were observed conducting drug transactions. At the time of these transactions, BB’s 10-month old child was in the back of the motor vehicle and BB was driving the vehicle. Upon arrest, two dime bags with 0.2 and 0.3 grams of fentanyl were found at MH’s feet. A further eleven dime bags with 3.5 grams of fentanyl was found near BB. There was evidence to suggest that despite the location of these bags near BB, MH was the primary trafficker. MH was 34, had a prior conditional discharge, and had begun to use drugs at an extremely young age. BB was 27 years of age on arrest and had no prior record. She also began using drugs at a young age. The parties sold drugs in order to extend BB’s maternity leave. My colleague Justice West sentenced MH to two years less a day in custody and three years probation. After noting that BB’s personal circumstances were “the worst” that he has been apprised of, he suspended the passing of sentence and placed BB on probation for a period of 36 months. [14]

46In Gagnon [15], Justice Conlon of the Superior Court of Justice imposed a custodial sentence of four years for a 39 year old addict offender found guilty after trial of Possession of 43.76 grams of methamphetamine and 12.34 grams of powder fentanyl with a “miserable presentence report,” a prior criminal record containing eleven prior convictions (two of which involved simple possession of cocaine) and some reason for hope given the sincere efforts to rehabilitate himself before sentence.

47There are a multitude of other cases involving persons who traffic or possess Fentanyl for the purpose of trafficking in much more significant quantities. As might be expected given the seriousness of this drug, all of these cases impose a significant penitentiary sentence.

48The cases that I have cited make it clear that the range of sentence in cases similar to Mr. Kennedy’s is between two years less a day and four years. There are two outliers: Grant which Justice Calsavara noted was an exceptional case and BB (included in MH) which can also fairly be said to be an exceptional case. In the former, Justice Calsavara imposed a sentence that involved the accused being under supervision for a total period of just under five years (two years less one day conditional plus three years of probation) and in the latter, Justice West, who was sentencing the offender with the worst background he had seen subjected the offender to at least three years of supervision. Both of those cases are exceptional. Both of those cases are very clearly not akin to Mr. Kennedy’s.

49At the other end of the scale is Bieber where an addicted offender with no prior record but who was found with a veritable drug store of illicit substances in his possession would have received (before taking Downes credit or prospective credit for COVID-19 into account), a sentence of 42 months and Gagnon, where the offender received a four year sentence.

50In these circumstances, the 24 month custodial sentence that I intend to impose with respect to Mr. Kennedy is more than fair to him.

51Mr. Kennedy also entered a plea to defrauding his employer of $49,424.40.

52It has long been a prominent feature of our law that accused persons who perpetrate large frauds or thefts where they breach trust can expect periods of incarceration as general deterrence, denunciation and specific deterrence become more prominent sentencing principles. [16] Although these principles have their roots in cases twenty or more years old, they have survived to this day, despite more modern developments in the law, including the availability of conditional sentences. [17]

53In Henn, my colleague Justice Mcleod considered the case of an account manager for a small business who defrauded that business of over $45,000. No restitution was paid in advance of the plea. The fraud was committed out of greed. The accused had no record. Justice Mcleod sentenced the accused to 12 months jail plus 36 months of probation.

54In Taverner, my colleague Justice Bourgeois considered the case of a support worker to a disabled person who stole over $47,000 from one of her clients over a period of just over six years. The accused paid back the full amount prior to being sentenced. She was remorseful. Her actions were fueled by greed. She had no criminal record. Justice Bourgeois imposed a sentence of 12 months jail and 24 months of probation.

55In Roopchand [18], the Manitoba Court of Appeal upheld the trial judge’s imposition of a 12 month custodial sentence, followed by three years of probation in a case where the accused stole over $54,000 from her employer. In this case, the accused had a criminal record which included a conviction for Breach of Trust for which she received a Conditional Sentence. The accused also had an outstanding charge of a similar ilk.

56These cases establish that an appropriate sentence for Mr. Kennedy’s fraud offence would be one of at least 12 months in custody. Given Mr. Kennedy’s prior criminal record and poorer prospects for rehabilitation, a higher sentence would be warranted.

57I must sentence Mr. Kennedy on two counts of breach of release order and one count of failing to appear. To recap, the facts with respect to the first breach of release order arise from the fact that when the Mr. Kennedy was arrested for Impaired Operation, he was also in Breach of the Curfew Condition of his release order. It was this arrest that led to the discovery of the Fentanyl.

58Subsequent to that, Mr. Kennedy breached by walking away from the Anchorage Program contrary to a release order and he also failed to appear for court subsequent to that.

59Most cases of Breach of Release Order or Failing to Appear are dealt with by way of imposition of 15 to 30 days in custody.

60That said, more egregious breaches will often result in higher penalties. The facts in these cases usually involve breaches of no contact orders in sexual assault or intimate partner violence cases [19].

61In Sagar [20], Justice Goldstein was sitting in appeal on a summary conviction matter where the trial judge ordered a Conditional Discharge and Probation in circumstances where there was a breach of a no contact order and the accused was seen speaking with the complainant after the complainant failed to attend court for the trial. Justice Goldstein noted:

…a strong denunciatory sentence is ordinarily appropriate where there has been a significant breach of a court order. A strong denunciatory sentence often involves a period of incarceration. Ordinarily a discharge will only be imposed where the breach is trivial or minor.

Significant breaches of court orders must be punished in order to deter potential offenders and preserve confidence in the administration of justice. I agree with the Crown that this sentence fell outside the range that is ordinarily reserved for breaches of significant terms of court orders. It will be a rare case of this nature that does not involve jail.

62Notwithstanding this, Justice Goldstein found that the trial judge was entitled to deference with respect to her finding and made no reviewable error. In particular, Justice Goldstein found that the trial judge was entitled to depart from the sentencing range.

63With respect to the Breach of Release Order associated with walking away from the Anchorage program, the ink was barely dry on Mr. Kennedy’s release papers before he breached. When Mr. Kennedy entered his pleas in the fall of 2021, he was clearly being shown a way to substantially mitigate his ultimate sentence by permitting him to reside out of custody at the Anchorage program where he would be able to complete some treatment for his drug problem.

64I must be careful, however, not to place undue emphasis on the failure to complete treatment. In Greene [21], a case involving a plea and sentence on charges of break, enter and theft, our Court of Appeal found that in sentencing the accused, the trial judge gave undue emphasis on the accused’s several unsuccessful attempts at rehabilitation, noting,

The appellant is addicted to cocaine and has been a very long time. It is unrealistic to expect that he will succeed at overcoming his addiction either on the first or second attempt or even after many attempts.

65I agree with this principle. It is also largely why, elsewhere in these reasons, I reject the Crowns’ submissions that Mr. Kennedy’s decision to walk away from Anchorage should somehow reduce his eligibility for Duncan credit. This kind of “just desserts” analysis does not have a place in assessing credit for extraordinary harsh or punitive conditions in pre-sentence custody which Duncan credit is designed to ameliorate.

66Ultimately with respect to this charge, what is so aggravating is that Mr. Kennedy can fairly be said to have not really even attempted treatment. The facts are that the accused was released on September 9 and he walked away from the treatment facility on September 10. This makes this breach much more significant than if the accused had breached after a month or even a week of attempting to rehabilitate himself at the program. A higher than usual sentence must be imposed in order to denounce Mr. Kennedy’s conduct, deter other like-minded offenders and preserve confidence in the administration of justice. When a court releases a person like Mr. Kennedy on bail to reside at a treatment centre, the court is taking a significant chance. While relapses will be tolerated, the total failure to participate will not and must be dealt with more severely than an “ordinary” breach.

67As I have indicated, I make all of these comments about sentencing ranges and positions with respect to the various charges that Mr. Kennedy faces because they inform the sentencing exercise for Mr. Kennedy, including the granting of Duncan credit, which as I will discuss below is ultimately a discretionary remedy.

68Section 718.1 of the Criminal Code requires me to impose a sentence that is proportionate to the gravity of the offence. Totality is part of this principle. It also arises out of the principle of restraint and out of section 718.2(c) which requires sentencing judges to ensure that where consecutive sentences are imposed, the combined sentence is not unduly long or harsh.

69Thus, in fashioning his sentence, I must not impose a sentence that is so harsh that it extinguishes the rehabilitation potential of Mr. Kennedy.

70Mr. Kennedy has a significant addiction to drugs that drives his offending behaviour. If he has a handle on that addiction, he can live a pro-social life and remain offence-free. If he does not, a list of charges such as we have here will quickly develop. Mr. Kennedy has demonstrated that treatment of his addiction in the community will be a significant challenge. The requirement in section 718(c) of the Criminal Code that I impose a sentence that assists in the rehabilitation of offenders would mandate a higher sentence so that Mr. Kennedy can take advantage of programming while he is incarcerated in the Penitentiary or at a facility such as the Ontario Correctional Institute.

71It is an extremely fine balance.

Summers Credit

72Section 719(3) to (3.3) of the Criminal Code states:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one half days for each day spent in custody.

(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated on the record.

(3.3) The court shall cause to be stated on the record and on the warrant of committal the offence, the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed.

73In Summers [22] the Supreme Court made it clear that pretrial custody ought to receive 1.5:1 credit in order to take three factors into consideration:

a) first, the fact that offenders do not receive earned remission for pretrial custody;

b) second, the fact that offenders who are housed in remand centres or detention centres often do not have access to richer rehabilitation programming such as one might find in a correctional centre or penitentiary; and

c) third, detention centres or correctional institutions are often places where there is overcrowding, inmate turn over and labour disputes. All of these factors lead to a situation where pre-sentence custody is actually more onerous.

74Following Summers, Mr. Kennedy is entitled to credit at 1.5:1 for the 237 days of actual custody for a total of 356 days.

75Given that the joint submission involves a sentence of 42 months (1260 days), This leaves a sentence of 904 days (or just over 30 months) remaining to be served.

Duncan Credit

76In Duncan [23], our Court of Appeal found that additional credit is available where the offender serves their pre-sentence custody in particularly harsh circumstances, stating:

… in appropriate circumstances particularly harsh pre-sentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.

77COVID-19 is a “collateral factor” that the court must take into consideration when sentencing an accused person. In Morgan [24], our Court of Appeal found that:

…it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission.

78In the very next paragraph of the judgment, the Court of Appeal stated, citing Suter [25], that a sentencing judge should consider whether the collateral consequences mean that a particular sentence would have “a more significant impact on the offender because of his or her circumstances.” [26]

79Three weeks after Morgan was decided, the Court of Appeal released Lariviere [27]. This case continued the theme developed in Morgan, that is, requiring sentencing judges to focus on the actual collateral consequences to the particular accused. The court noted and agreed with the earlier pronouncement in Morgan, cited above, about taking judicial notice of the general effects of COVID-19 on society but it stopped short of providing a concrete prospective reduction of the sentence on the basis of these collateral factors, stating “ However, there is nothing about the particular circumstances of the appellant's incarceration, nor any indication of a unique or personal vulnerability, that would justify shortening the fit sentence that was imposed.” [28]

80In this way, credit for pretrial custodial conditions caused as a result of COVID-19 has been subsumed by the Duncan analysis. This theme has remained throughout other Court of Appeal pronouncements on the subject. [29] Most recently in Marshall [30], the Court of Appeal stated as much:

A Duncan credit is given on account of particularly difficult and punitive presentence custody conditions. It must be born in mind that Summers credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody. The Duncan credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The very restrictive conditions in jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to the Duncan credit.

81In this case, I have not heard any evidence as to whether Mr. Kennedy suffers from an ailment that makes him particularly vulnerable if he contracts COVID-19. In fact, I have heard that Mr. Kennedy contracted COVID-19 just prior to his May 2021 admission to custody and presumably he managed to overcome it.

82What I have instead are the institutional records for Mr. Kennedy, which I have summarized above. I agree with Defence counsel that this makes the already difficult and onerous conditions of pre-sentence custody (recognized in Summers) even more difficult and onerous.

83As I set out above, I specifically decline to refuse Duncan credit on the basis that, having served one period of custody during COVID-19, between May and September 2021, Mr. Kennedy ought to have known what was inevitably coming to him in the form of COVID-related lock downs when he decided to walk away from Anchorage a day after being released by Justice March.

84I do not believe that it is appropriate to suggest that a drug addict like Mr. Kennedy should be further punished by enduring presentence custody conditions that are more harsh than what is to be included as part of the normal 1.5:1 presentence custody credit provided for in Summers. As I indicated when I addressed the significance of the breach, Greene makes it clear that when dealing with an addicted offender, it is not unreasonable to expect that there is a good possibility of relapse and offender should not be treated too harshly for their relapse. Failing to attribute some Duncan credit would be tantamount to doing so.

85I am also mindful that COVID-19 has been a force to be reckoned with in the Province of Ontario for over two years. Despite this, the evidence with respect to the necessity for ongoing lockdowns makes it clear that the custodial authorities have not addressed conditions in the institutions to ensure that offenders have adequate living conditions and receive sufficient exercise while these lockdowns are in place.

86Based on Exhibit 2, for a substantial period of his time at the Detention Centre, Mr. Kennedy was in a dorm where there are more liberties than on a range.

87This is no evidence of unique or personal vulnerability.

88Hardly a day goes by where I do not see the effects of COVID-19 on inmates at the Ottawa-Carleton Detention Centre, where accused persons from Pembroke are routinely held before trial. I frequently hear of the failure to permit inmates to have opportunities to engage in proper hygiene such as showers; I often hear about how inmates have significant difficulties speaking to their lawyers; inmates are commonly not brought to court for appearances because of some precaution or another related to COVID-19. The Jail, not the Court, dictates the time that inmates will appear in court and whether they appear by video or by telephone.

89While at first blush, the specific conditions set out in Exhibit 2 “don’t seem all that bad”, the realities that I have set out all lurk in the background.

90For anyone, this atmosphere of chaos would cause a certain amount of stress and anxiety.

91For some inmates, this will be more pronounced or acute than for others.

92In Mr. Kennedy’s case, although I have not received specific evidence of the effect of these conditions on him personally, some of it is self-evident.

93This is why I find that some Duncan credit should be granted. It is also one reason why I decline to give Duncan credit for all of Mr. Kennedy’s pre-sentence custody.

94I am also mindful that Mr. Kennedy has work to do. For the protection and safety of the public [31] and the rehabilitation of Mr. Kennedy [32], the sentence that I impose must provide a sufficient period for Mr. Kennedy to receive treatment and rehabilitation for his drug problem and be tested in the community through the availability of parole. A sentence of less than 30 months is not, in my view, sufficient to do that.

95The caselaw makes it clear that credit for collateral factors in the sentencing process cannot render a fit sentence unfit [33] nor, as Justice Doherty put it in Marshall [34], should Duncan credit “devour” a large portion of an otherwise fit sentence. I believe that anything less than two and half years will not be sufficient to meet all of the sentencing objectives for Mr. Kennedy. I am also mindful of the approach taken recently by Justice Doherty in Marshall,

The Duncan credit is not a deduction from the otherwise appropriate sentence but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken in account with other mitigating or aggravating factors in arriving at the appropriate sentence from which the Summers credit will be deducted. Because the Duncan credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate having regard to all of the relevant mitigating and aggravating factors.

Often times, a specific number of days or months are given as Duncan credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the Duncan credit, only one of the presumably several relevant factors, there is a risk that the Duncan credit will be improperly treated as a deduction in the same way as the Summers credit. If treated that way, the Duncan credit can take on an unwarranted significance in fixing the ultimate sentence imposed. [35]

96Unlike Summers credit, Duncan credit is not something that is rigidly [36] and mechanically applied the same way in every case. It depends on the individual offender being sentenced, the specific circumstances of their pre-sentence custody, how that pre-sentence custody has affected them and how that credit relates to the overall fitness of their sentence.

97For each of the 73 days that Mr. Kennedy was in “lockdown”, he will receive 0.5 days Duncan credit for total additional credit of 37 days. This leaves a total remaining sentence of 29 months.

Final Sentence

98Therefore, the sentence that I impose is:

a) For Fraud Over $5000, 237 actual days, 393 days credit plus one month custody; b) For Possession of Property Obtained by Crime, one month custody consecutive; c) For Possession of a Controlled Substance for the Purpose of Trafficking, 24 months custody consecutive; d) For Breach of Release Order (curfew), one month concurrent; e) For Impaired Driving, one month concurrent; f) For Breach of Release Order (Anchorage), three months consecutive; g) For Failure to Appear, one month concurrent; and h) For Theft Under (Giant Tiger), one month concurrent.

Released: April 7, 2022 Signed: Justice J. R. Richardson

Footnotes

1Transcript of proceedings of March 10, 2022 at page 24.

2Supra.

3Supra at page 28

4Supra, at page 30

5Supra, at page 32

6The Email will be made Exhibit 3 on April 7, 2022.

7In R. v. Olvedi, [2018] OJ 6221 (SCJ) at paragraph 27, aff’d R. v. Olvedi, [2021] ONCA 518 at paragraphs 40-41, the court accepted evidence that “Fentanyl is 100 times stronger than morphine and 20 times stronger than heroin. The problem of fentanyl-related fatalities has reached crisis proportions. It has become the number one opioid identified in death investigations of drug-related fatalities. It can also be mixed with other drugs. In some cases, the deceased believed that they were using cocaine or heroin but unknowingly ingested a deadly mixture that contained fentanyl. It can be inhaled and absorbed through the skin. It present serious risks for anyone who handles it or is near it”. See also R. v. Loor, [2017] ONCA 696 at paragraphs 33 to 38.

8 R. v. Disher, [2020] ONCA 710 at paragraph 30.

9 R. v. Loor, [2017] ONCA 696 at paragraph 50

10 R. v. Smith, [2017] BCCA 112. Recently the British Columbia Court of Appeal upheld an 18 month sentence for an individual who in two separate transactions trafficked in a 0.17 gram mixture of heroin and fentanyl and 0.19 gram “flap” of fentanyl, and possessed a further 3.8 grams of fentanyl for the purpose of trafficking: R. v. Niederhumer, [2022] BCCA 88

11 R. v. Bieber, [2022] ONCJ 53.

12 R. v. Grant, [2021] ONCJ 507 at paragraph 28.

13 R. v. MH, [2018] ONCJ 397

14This case was decided before R. v. Sharma. The reasons make it clear that if such a disposition was available Justice West would have ordered a conditional sentence for BB.

15 R. v. Gagnon, [2017] ONSC 7470

16See R. v. McEachern, [1978] OJ 987 (CA); R. v. Gray (1995), 76 OAC 387; R. v. Bogart, [2002] OJ 3039 (CA); R. v. Dobis, [2002] OJ 3039 (CA).

17See R. v. Henn, [2021] ONCJ 547; R. v. Mason, [2017] ONSC 1509; R. v. Flynn, [2017] ONSC 2738, R. v. Taverner, [2017] ONCJ 469, R. v. Mathur, [2017] ONCA 403 and R. v. Castro, [2010] ONCA 718

18 R. v. Roopchand, [2016] MBCA 105

19See for example R. v. Sagar, [2016] ONSC 6520; R. v. Hammond, [2016] ONCJ 176; R. v. Lewis, [2014] ONSC 1390 and R. v. Stroud, [2004] OJ 1235 (C.A.);

20 R. v. Sagar, supra, at paragraphs 22 and 23.

21 R. v. Greene, [2002] OJ 5976 (C.A.) at paragraph 5

22See, generally R. v. Summers, [2014] SCC 26 at paragraphs 20 to 34

23 R. v. Duncan, [2016] ONCA 754 at paragraph 3

24 R. v. Morgan, [2020] ONCA 279 at paragraph 8

25 R. v. Suter, [2018] SCC 34

26 Suter, supra, at paragraph 48, cited in Morgan at paragraph 9

27 R. v. Lariviere, [2020] ONCA 324

28 Lariviere, supra, at paragraph 17

29See R. v. Schilling, [2021] ONCA 916 at paragraphs 18 to 23; R. v. Marshall, [2021] ONCA 344; R. v. Rajmoolie, [2020] ONCA 791

30 R. v. Marshall, [2021] ONCA 344 at paragraph 50

31Part of the “fundamental principle of sentencing” in section 718 of the Criminal Code.

32Section 718(d) of the Criminal Code.

33See R. v. Omoragbon, [2020] ONCA 336 at paragraph 32 and R. v. Brown, [2020] ONCA 196.

34 Marshall, supra, at paragraph 53

35 Marshall, supra, at paragraph 52-53

36 R. v. Suter, supra, at paragraph 46 and 47: “…a sentencing judge must have “sufficient manoeuvrabilty” to tailor sentences to the circumstances of the offence and the particular offender. There is no rigid formula for taking collateral consequences into account. They may flow from the length of sentence, or from the conviction itself.”