Court of Appeal for Ontario

Date: 2019-12-13 Docket: C67330

Judges: MacPherson, Sharpe and Zarnett JJ.A.

Between

Her Majesty the Queen Respondent

and

Ennio Borsi Appellant

Counsel

Nathan Gorham, for the appellant

Andrew Hotke, for the respondent

Hearing and Lower Court Decision

Heard: December 10, 2019

On appeal from: The sentence imposed on June 19, 2019 by Justice Kathleen J. Caldwell of the Ontario Court of Justice.

Appeal Book Endorsement

[1] The appellant raises one ground of appeal, namely that the sentencing judge erred by refusing to give him enhanced credit for 89 days in lockdown of the 528 days of pretrial custody. He relies on the principle established in R. v. Duncan, 2016 ONCA 754 at para. 6 that "in appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation beyond the 1.5 credit referred to in s. 719(3.1) of the Code." The sentencing judge's decision is discretionary and attracts substantial deference on appeal: R. v. U.A., 2019 ONCA 946.

[2] We do not agree that the sentencing judge made any error in principle. She was correct in focusing her attention on the issue of whether there were "particularly harsh" conditions and their effect on the appellant. She felt that the appellant did not experience particularly harsh treatment as required by Duncan. That finding attracts deference on appeal.

[3] Accordingly, the appeal is dismissed.