Court of Appeal for Ontario

Date: 2020-03-12 Docket: C65543

Before: Hoy A.C.J.O., Feldman and Gillese JJ.A.

Between: Her Majesty the Queen, Respondent and Jasfa Brown, Appellant

Counsel: Jasfa Brown, acting in person Delmar Doucette, appearing as duty counsel Jessica Smith Joy, for the respondent

Heard: February 13, 2020

On appeal from the convictions entered on March 13, 2018 by Justice Kenneth L. Campbell of the Superior Court of Justice, sitting without a jury, and the sentence imposed on June 14, 2018.

Reasons for Decision

[1] On March 14, 2018, the appellant pleaded guilty to three offences, possession of a loaded restricted firearm without a license, possession of cocaine for the purpose of trafficking, and possession of a firearm while prohibited by court order, all having occurred on November 9, 2015. The prohibited items were located in the master bedroom of a residence connected to the appellant, in two locked safes. The appellant’s plea was based on wilful blindness as to the contents of the safes.

[2] The appellant raised some arguments concerning the validity of his guilty plea. We see no basis upon which to interfere with the plea at trial.

[3] The plea was given in conjunction with a joint submission on sentence of eight years, less credit for presentence custody. The defence sought various credits, including an enhanced credit to account for the harsh conditions the appellant endured in incarceration, pursuant to R. v. Duncan, 2016 ONCA 754. The Crown took no position on the Duncan credit issue, leaving it to the sentencing judge to determine based on the description of the harsh conditions and their effect on the appellant, as documented and described by defence counsel in his submissions.

[4] The issue on appeal is whether the sentencing judge erred in the amount of credit he accorded for the harsh conditions and their effects on the appellant during an extended period of presentence custody.

[5] After considering the circumstances of the offences and of the offender as well as the joint submission, the sentencing judge imposed the eight-year sentence, then turned to the issue of credit for presentence custody. He first awarded a 1.5:1 credit for the 516 days the appellant spent in presentence custody, pursuant to R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. Second, because the appellant also spent roughly a year of his presentence time on house arrest bail, the sentencing judge gave a further credit of 3.5 months, pursuant to R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.).

[6] The third aspect of presentence credit considered by the sentencing judge was the Duncan credit, given to compensate the accused for harsh conditions spent in presentence custody including lengthy periods of lock-down, and their effect on the particular accused. In Duncan, this court confirmed that presentence credit is not capped at the statutory 1.5:1 under s. 719(3.1) of the Criminal Code, but may, in appropriate circumstances, include additional credit for “particularly harsh presentence incarceration conditions”: at para. 6.

[7] To present the basis for the Duncan credit, defence counsel provided the sentencing judge with what he described as a significant body of documentary evidence. The sentencing judge carefully reviewed what he was given and summarized the conditions and their effect on the appellant in his unreported reasons as follows:

• That the accused experienced approximately six months of lock-down conditions in the institution. More particularly, he experienced 98 full days in lock-down, and 83 partial days in lock-down. During these times, the accused had no access to showers, phone calls, or clothing changes, and these conditions negatively impacted upon his mental health issues surrounding his PTSD and Anxiety.
• That the accused suffered through an acute health problem when his face became swollen in connection with a dental infection, which ultimately led to the need for emergency dental surgery, when this health problem was not addressed promptly by the institution.
• That the accused, who suffers from a light sensitivity issue, was not provided with prompt access to his own prescribed sunglasses, and this led to him experiencing a seizure at one point.
• That the accused suffered from a urological issue, which involved some bleeding and a bladder infection, during which he had to use a catheter, and this resulted in some physical difficulties over a period of time.
• That the accused experienced difficulties promptly accessing some of the cannabis-based medication that he had previously been using for his mental health problems.
• That the accused experienced ongoing problems accessing the necessary lubricant and suction device to properly care for the prosthetic for his left eye, and these problems may have led to an eye infection that the accused experienced while in custody.
• That the accused experienced ongoing dietary issues in the detention center surrounding his long-standing food allergies, and his allergic reactions to some of the food that was provided to him.
• That the accused experienced a number of other health-related problems while detained in custody, including rectal bleeding.

[8] Based on these harsh conditions and their effect on the appellant, defence counsel at sentencing asked for a Duncan credit of 8 months. The Crown took no position and did not challenge any of the appellant’s evidence.

[9] The sentencing judge rejected the request for 8 months but granted 4 months’ credit in the following paragraph of his reasons:

Defence counsel contends that the accused should be given credit for an additional eight months (240 days) in custody as a result of the harsh conditions the accused suffered in the Toronto South Detention Centre, and their impact upon the accused. With respect, I find this proposed credit to be excessive, even in light of the fact that the accused suffers from a disability and other ongoing physical and mental health issues. In my view, in the circumstances of this case, given the duration of the full and partial lock down conditions, their adverse impact on the accused, and the other hardships the accused experienced during the course of his pre-sentence detention, the accused should be extended a further custodial credit that is equivalent to approximately four months[’] imprisonment. See R. v. Tello, 2018 ONSC 2259, at paras. 75-81.

[10] The Tello case, referred to by the sentencing judge, was a decision made by the same judge involving similarly harsh conditions with similar effects on the accused. The same credit of 4 months was given.

[11] On appeal, duty counsel on behalf of the appellant submitted that the credit of four months was so low that it amounted to an error in law resulting in an unfit sentence. The appropriate Duncan credit, he argued, should have been in the realm of 1.5:1 in accordance with more recent case law that has addressed the ongoing, serious conditions at the Toronto South Detention Centre that continue to give rise to claims for significant Duncan credit. Counsel referred to the decisions of Kelly J. in R. v. Ward-Jackson, 2018 ONSC 178; of Molloy J. in R. v. Fermah, 2019 ONSC 3597, 56 C.R. (7th) 154; and the recent decision of Schreck J. in R. v. Persad, 2020 ONSC 188.

[12] We agree that the cases referred to by duty counsel indicate that the conditions at Toronto South have not improved and that sentencing judges are recognizing the seriousness of the situation by giving significantly enhanced Duncan credit. The 4 months’ credit in this case is lower than the thrust of more recent reported decisions of the Superior Court: see R. v. Charley, 2019 ONSC 6490, at paras. 59-68.

[13] However, as both defence and Crown counsel submitted to the sentencing judge, the amount of credit to be given engages the discretion of the sentencing judge: see R. v. Ledinek, 2018 ONCA 1017; R. v. U.A., 2019 ONCA 946; R. v. Deiaco, 2019 ONCA 12. In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, the Supreme Court directed that for an appellate court to interfere in a sentence, the sentence must contain an error of law or an error in principle that impacted the sentence, or the sentence must be demonstrably unfit: at para. 11.

[14] In this case, the sentencing judge applied the test from Duncan: he considered the harsh circumstances of the presentence custody and their effect on the appellant, then exercised his discretion. Although the credit is at the low end given the circumstances endured by the appellant, it cannot be said to be demonstrably unfit.

Disposition

[15] The appeal against conviction is dismissed. Leave to appeal the sentence is granted, but the appeal is dismissed except the $600.00 victim fine surcharge is set aside in accordance with R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599.

Alexandra Hoy A.C.J.O.

K. Feldman J.A.

E.E. Gillese J.A.