Court Information
COURT OF APPEAL FOR ONTARIO DATE: May 4, 2020 DOCKET: C67536
Before: MacPherson, Benotto and Nordheimer JJ.A.
Parties and Counsel
BETWEEN
Her Majesty the Queen Respondent
and
Brandon Morgan Appellant
Counsel: Brandon Morgan, acting in person Matthew Gourlay, appearing as duty counsel Michael Fawcett, for the respondent
Heard: April 27, 2020 by teleconference
On appeal from the conviction entered on May 15, 2019 by Justice Feroza Bhabha of the Ontario Court of Justice and from the sentence imposed on September 23, 2019.
Reasons for Decision
[1] Brandon Morgan originally appealed his conviction and sentence. However, at the hearing, he abandoned his conviction appeal and proceeded solely with the sentence appeal.
[2] The appellant was sentenced to two years less a day comprised of 21 months on his conviction for aggravated assault and three months consecutive on a total of three counts of failing to comply with court orders. The appellant had attacked the victim with a sword in his mother’s home. The victim was a friend of the appellant’s mother and had, in fact, acted as a surety for the appellant at an earlier point in time.
[3] The appellant does not dispute that the sentence was a fit one at the time that it was imposed. Rather, the appellant submits that intervening events, namely the COVID-19 pandemic, have served to render the sentence unfit. He seeks a reduction in his sentence as a consequence of these events.
[4] The appellant is currently incarcerated at the Central North Correctional Centre located in Penetanguishene, Ontario. In support of his position, the appellant refers to the fact that correctional facilities are not designed to contend with such a pandemic. It is not possible to maintain an appropriate physical distance from other inmates or from staff. The only method that the institution has to try and address physical distancing is to keep inmates confined to their individual cells. The appellant says that he spends all but three hours a day confined to his cell. Of that three hours, only 20 minutes are provided for the inmate to actually be outside in the fresh air. Meals are served to inmates in their cells. The appellant also says that there are days when even the three hours are not provided because of staff shortages.
[5] The appellant says that this confinement, coupled with the inherent increased risk of contracting the virus, if it enters the inmate population, detracts from the rehabilitative goals of his sentence. The appellant notes that the rehabilitative programs that would normally be provided to inmates are all canceled because of the pandemic and the need to keep inmates in their cells. The appellant says that it is clear that the sentencing judge imposed the sentence that she did in an effort to maximize the prospect for rehabilitation and now that prospect is being thwarted. The appellant says that, had the sentencing judge been aware that these events would happen, she would have imposed a lesser sentence to accommodate the rehabilitative goal.
[6] As a result, the appellant seeks a reduction of his sentence by one-third such that he would be immediately eligible for parole. This would also advance his statutory release date to July and thus ensure his almost immediate release from incarceration. The appellant is currently eligible to be considered for parole on May 23. However, the appellant says that there is no guarantee that he will get parole because he has a criminal record and because he would have difficulty showing that he has acceptable living arrangements if paroled.
[7] The respondent says that the appeal should be dismissed. The respondent says that the sentence was fit at the time. Indeed, the respondent says that the sentence was a lenient one. In any event, the respondent says that the sentence remains fit, even taking into account the impact of the COVID-19 pandemic. The respondent also says that this court should not consider the submission that there is an increased risk and impact on inmates in correctional facilities, arising from the COVID-19 pandemic, without direct evidence to establish that contention.
[8] In our view, it is not necessary to decide whether this court could take judicial notice of the effects of the COVID-19 pandemic to the extent to which the appellant would have us do that. We do, however, believe 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.
[9] In our view, the appellant’s submissions fall into the category of collateral consequences for sentencing purposes. As Moldaver J. noted in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48:
The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances.
[10] However, Moldaver J. went on to make a further observation in Suter that has direct application to the case here. He said, at para. 56:
I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case - collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.
[11] In our view, the sentence imposed on the appellant was at the very low end of an acceptable range of sentence for the offence of aggravated assault. It was, indeed, a lenient sentence, given the injuries sustained by the victim and the fact that the appellant had a criminal record. To reduce the sentence any further would result in a sentence that is unfit, one that would be disproportionate to the gravity of the offence. As was observed by Wagner J. in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 18:
It follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility of the offender.
[12] That result does not mean that there is no potential remedy for the appellant respecting the impacts arising from the COVID-19 pandemic. We expect that the Ontario Parole Board will take into account those impacts in deciding whether the appellant should be granted parole. If the Parole Board fails to do so, the appellant has other remedies available to him to redress that failure.
Conclusion
[13] The conviction appeal is dismissed as abandoned. Leave to appeal sentence is granted but the appeal is dismissed.
“J.C. MacPherson J.A.” “M.L. Benotto J.A.” “I.V.B. Nordheimer J.A.”
