Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20210728 DOCKET: C67208

Before: Hourigan, Paciocco and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Jeffrey Dodman Appellant

Counsel: Janani Shanmuganathan for the appellant Michael Perlin for the respondent

Heard: June 25, 2021 by videoconference

On appeal from the sentence imposed by Justice Mara B. Greene of the Ontario Court of Justice on July 26, 2019.

REASONS FOR DECISION

A. Background

[1] The appellant seeks leave to appeal his sentence on one count of robbery and one count of use of an imitation firearm in the commission of an indictable offence. For the reasons that follow, we would dismiss the appeal.

[2] The circumstances of the offences are as follows. On August 28, 2012, the appellant entered the victim's convenience store wearing a distinctive white-coloured, full-face Halloween mask. The appellant pointed a black-coloured, semi-automatic type weapon at the victim, repeatedly jabbed him with it, and demanded money. The victim turned over approximately $150. The appellant pocketed the cash and fled out the front door.

[3] The victim followed the appellant out of the store and observed the general direction in which he was headed. Witnesses provided information to the police, who subsequently found and arrested the appellant. The officers located a bag containing a black-coloured pellet gun, a white-coloured, full-face Halloween mask, and $145. The appellant identified himself as the person who committed the robbery. He was charged with robbery with a firearm and disguise with intent.

[4] The circumstances of the appellant changed drastically between the time of the offences and the time of his sentencing. At the time of the robbery, the appellant was addicted to alcohol and drugs. Just weeks before, he had unsuccessfully attempted to obtain help for his addiction by entering a treatment program. The night of the robbery, he was on a drug and alcohol binge, having consumed approximately 30 beers. He had run out of money and robbed the victim’s convenience store so that he could continue his binge. By the time of his sentencing, some seven years later, the appellant had completed his university degree, had been sober since his arrest, was employed, and was in a supportive relationship.

[5] The Crown and the defence agreed to reduce the charges to robbery with the use of an imitation firearm, and the appellant entered guilty pleas. The parties also agreed to a joint submission of 18 months’ custody. However, they differed on the amount of credit to be awarded pursuant to R. v. Downes (2006), 2006 ONCA 3957, 79 O.R. (3d) 321 (Ont. C.A.). Ultimately, the sentencing judge reduced the agreed upon sentence by six months. Given this sentence, she declined to consider the appellant’s argument that the one-year mandatory minimum sentence for using an imitation firearm in the commission of an indictable offence, as found in s. 85(3)(a) of the Criminal Code, R.S.C. 1985, c. C-46, violates s. 12 of the Canadian Charter of Rights and Freedoms.

B. Issues

[6] In oral argument, counsel for the appellant makes several submissions. First, she renews the s. 12 Charter argument. Second, she says that we should impose a conditional sentence as a consequence of this court’s decision in R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209, leave to appeal granted, [2020] S.C.C.A. No. 311. She contends that, based on the appellant’s current circumstances, no purpose would be served by incarcerating him for 12 months. Alternatively, she argues that we should wait until September 2021 to rule on this case because there is currently a bill before Parliament that would impact the availability of a conditional sentence and eliminate the mandatory minimum sentence found in s. 85 of the Criminal Code. Finally, in her factum, she submits that the sentencing judge erred in her consideration of the Downes credits.

[7] As will be explained below, we are not persuaded to interfere with the sentence or to otherwise give effect to any of the arguments advanced by the appellant. In considering his submissions, we would formulate the issues as follows:

Was the sentence imposed fit;
Is a conditional sentence appropriate in the circumstances;
Should this court interfere with the sentence imposed based on post-sentencing events;
Should this court delay its disposition of the appellant’s case to see whether Parliament amends the Criminal Code; and
Should this court consider the constitutionality of s. 85 of the Criminal Code?

C. Analysis

(1) Was the sentence imposed fit?

[8] As noted, the parties agreed on a joint submission that 18 months in custody was an appropriate sentence. However, before the sentencing judge, their positions were quite far apart because of their different views on the issue of Downes credits. The Crown submitted that the agreed upon sentence should not be reduced. The defence initially urged the court to grant a six-month Downes credit, but after raising the constitutional issue, sought a 90-day intermittent sentence. The issue of Downes credits was therefore critical in fashioning a fit sentence for the appellant.

[9] The law regarding Downes credits was recently summarized in R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 108, as follows:

[108] The propriety of treating "stringent bail conditions, especially house arrest", as a sentencing consideration was affirmed in R. v. Downes (2006), 2006 ONCA 3957, 205 C.C.C. (3d) 488 (Ont. C.A.), at para. 33. Although it is not uncommon to speak of providing “credit” for stringent bail conditions, “pre-trial bail is conceptually a mitigating factor” in assessing a fit sentence: R. v. Panday (2006), 205 C.C.C. (3d) 488 (Ont. C.A.). Mitigation is given because stringent bail conditions can be punitive and therefore “akin” to custody: Downes, at para. 29. The criteria to be considered in assessing the weight of the mitigation to be given therefore include the amount of time spent on bail conditions; the stringency of those conditions; their impact on the offender’s liberty; and the ability of the offender to carry on normal relationships, employment and activity: R. v. Place, 2020 ONCA 546, at para. 20. The mitigating effect that such considerations have on the sentence to be imposed falls within the discretion of the trial judge: Downes, at para. 37.

[10] Two points are worth emphasizing. First, the granting of Downes credits is not done through the use of a mathematical formula. It is the responsibility of the sentencing judge to review all of the relevant factors and determine what credit, if any, should be applied. This is a highly discretionary exercise, and judges can reasonably differ on what is the appropriate sentence in the circumstances of a given case. Second, appellate courts will not generally interfere with the exercise of that discretion absent undue emphasis on the bail conditions as a mitigating factor (see Joseph, at paras. 108, 112) or the lack of an evidentiary foundation to support the sentencing judge’s findings (see R. v. Adamson, 2018 ONCA 678, 364 C.C.C. (3d) 41, at paras. 115-117). A sentencing judge's reasonable exercise of discretion is owed deference by this court: R. v. Ledinek, 2018 ONCA 1017, at para. 13; R. v. Bell, 2021 ONCA 315, at para. 8.

[11] The appellant submits that the sentencing judge erred by finding that if delay in sentencing accrues at the defence's request, then less Downes credit should be awarded for the time spent on bail. That is not an accurate summary of the sentencing judge’s reasoning. On the contrary, she undertook a detailed analysis of the appellant’s time on bail and properly focussed on whether the conditions of bail, which changed over time, were so punitive that they were akin to punishment.

[12] The sentencing judge broke down the appellant’s time on bail into three periods. Regarding the first 22 months of bail, when the appellant was under house arrest, the sentencing judge reasonably concluded that his house arrest bail had little impact on him during the seven months he stayed in a residential treatment facility. For the remaining 15 months of house arrest, the sentencing judge granted a five-month credit. She found that the house arrest did not prevent the appellant from socializing and taking steps to rebuild his life. In reaching her conclusion, the sentencing judge relied on a letter from the appellant wherein he reported that during this period, he was able to entertain at his home, make amends with friends and family, and maintain a relationship with his girlfriend. This was a reasonable exercise of the sentencing judge’s discretion, and there is no basis to interfere with her findings.

[13] Concerning the second period, which covered the 38 months from the time a curfew replaced the appellant's house arrest in July 2014 to the time of his guilty plea in September 2017, the sentencing judge awarded one month of Downes credit. She reasoned that the appellant was able to go out every day, attend school, and visit his friends. The sentencing judge acknowledged that the curfew impacted the appellant's life as he could not socialize outside of his home after 11 p.m. Recognizing that limited impact, the sentencing judge granted one month of additional Downes credit. Again, this was a reasonable exercise of her discretion based on her detailed review of the circumstances. We decline to interfere with the credit awarded for this period.

[14] The third period was the time between the appellant’s guilty plea and the imposition of his sentence. In this period, the appellant twice sought adjournments of his sentencing hearing to give him enough time to finish his university degree. The sentencing judge awarded no Downes credit for this period. We agree with that conclusion. It is difficult to see any actual hardship to the appellant during this time. In fact, the appellant chose to delay his incarceration so that he could finish his degree.

[15] In summary, we see no error in the sentencing judge’s awarding of the Downes credits. Further, in our view, a sentence less than the one imposed would not be proportionate to the gravity of the appellant’s actions and his moral blameworthiness. The jurisprudence of this court makes clear that robberies of convenience stores will attract substantial sentences and that general deterrence and denunciation play an essential role in fashioning a fit sentence: R. v. Clarke, 2014 ONCA 296, at para. 18; R. v. Superales, 2019 ONCA 792, at para. 1; and R. v. Lewis, 2009 ONCA 792, at para. 3. We conclude, therefore, that the 12-month custodial sentence imposed was fit.

(2) Is a conditional sentence appropriate in the circumstances?

[16] The appellant submits that if the mandatory minimum for the use of an imitation firearm is unconstitutional, then consistent with this court’s decision in R. v. Kebede, 2021 ONCA 283, we should impose a conditional sentence.

[17] In Kebede, the appellant was convicted of possession of cocaine for the purpose of trafficking and received a custodial sentence of nine months. On appeal, the court noted that due to the recent decision in Sharma, the provision of the Criminal Code that removed conditional sentences as an option in such cases had been struck down. The court was satisfied that given the change in the sentencing landscape, a conditional sentence was appropriate. The court reached this conclusion for three reasons: (1) the trial judge’s decision strongly suggested that he would have imposed a conditional sentence had it been an available option; (2) while on bail, the appellant had continued to stay out of trouble and receive community support; and (3) none of the principles of sentencing would be served by reincarcerating the appellant for a brief period of time at this stage.

[18] In our view, this case is distinguishable from Kebede, and a conditional sentence would be inappropriate even if available. We accept the appellant’s contention that his rehabilitative prospects are similar to the situation in Kebede because he has made tremendous progress during his time on bail. However, while the sentencing judge was sympathetic to the appellant's position, we are not satisfied that she would have imposed a conditional sentence had it been available. On the contrary, the sentencing judge found that this was a very serious crime requiring “a custodial disposition of some substance.”

[19] Further, unlike in Kebede, this is not a case where none of the principles of sentencing would be advanced by having the appellant serve a custodial sentence. As the sentencing judge correctly noted, the principles of deterrence and denunciation play an important role in the sentencing for robberies.

(3) Should this court interfere with the sentence imposed based on post-sentencing events?

[20] The appellant also submits that we should reduce or otherwise change his sentence based on post-sentencing events. In this regard, the appellant makes three arguments.

[21] First, he submits that this court should reduce his sentence due to his bail conditions pending appeal. We see no basis to award any such credit. The terms of the bail pending appeal were similar to the terms of his curfew bail at trial and were hardly punitive or akin to custody.

[22] Second, the appellant has filed fresh evidence, including a letter from his doctor regarding the impact of COVID-19. We admit this evidence largely on the basis that it was not available at the time of sentencing. The doctor indicates "that incidents of COVID-19 at detention centres and correctional facilities are on the rise." The basis for his statement is unclear. He proceeds to advise that the appellant has a higher risk of complications from COVID-19 because of his history of pneumonia. However, he then contradicts this statement by indicating that he has ordered tests that "would be helpful in determining if [the appellant] is at higher risk of suffering complications from COVID-19."

[23] We are not persuaded by the fresh evidence that the appellant is at greater risk of complications from COVID-19 than the general population and that, as a result, he should have his 12-month custodial sentence altered. If he genuinely does have a health concern, he is free to apply for early release under s. 121 of the Corrections and Conditional Release Act, S.C. 1992, c. 20. In any event, concerns about COVID-19 cannot be utilized to justify the imposition of an unfit sentence: Bell, at para. 9; R. v. Kanthasamy, 2021 ONCA 32, at para. 9.

[24] Third, the appellant relies on R. v Ghadban, 2015 ONCA 760, 342 O.A.C. 177, in support of his submission that this court has the authority to reduce an otherwise fit sentence based on the progress an offender has made while awaiting their appeal. We do not give effect to this submission. This case is distinguishable from Ghadban because here, the sentencing judge already took into account the substantial progress the appellant had made in turning his life around. That progress took place before sentencing and was reflected in the sentence imposed.

(4) Should this court delay its disposition of the appellant’s case to see whether Parliament amends the Criminal Code?

[25] The federal government has tabled legislation, Bill C-22, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, 2nd Sess, 43 Parl, 2021 (first reading 18 February 2021), which would remove the one-year mandatory minimum sentence for the use of an imitation firearm in the commission of an indictable offence and allow the imposition of conditional sentences for offences that carry a maximum sentence of no more than 14 years. Parliament has not passed that bill. The appellant submits that this court should wait to determine his appeal because Bill C-22 could impact his sentence by removing both the minimum sentence and permitting the imposition of a conditional sentence.

[26] This submission does not persuade us. Leaving aside the wisdom of waiting for a potential change in the law that may never come, we are not satisfied that the passage of Bill C-22 would make any difference to the appellant's case. For the reasons described above, even if a conditional sentence were available, this is not an appropriate case for such a sentence, and a further reduced sentence would not be fit.

(5) Should this court consider the constitutionality of s. 85 of the Criminal Code?

[27] We agree with the conclusion of the sentencing judge that it is unnecessary to consider the appellant’s s. 12 argument because, for the reasons cited above, a sentence below the one already imposed would be unfit.