Court Information

Date: June 29, 2017

Ontario Court of Justice Old City Hall – Toronto

Parties

Between: Her Majesty the Queen

And: Terry Nguyen

For the Crown: J. Spare

For the Defendant: J.S. Struthers

Heard: March 9 and May 31, 2017

Reasons for Sentence

Justice Melvyn Green

A. INTRODUCTION

[1] Terry Nguyen was having dinner with his wife in a downtown Toronto restaurant on September 20, 2015. Two men entered the restaurant around 10pm and fired four shots at the couple as they sat at their table. One bullet passed through the left side of Terry Nguyen's neck. His wife was hit in the torso. The two assailants fled the restaurant. Neither has been arrested or charged.

[2] Bleeding conspicuously, Nguyen ran to a nearby hotel. He called his wife from the lobby and then returned to the restaurant. A patron attending to his wife turned her attention to Nguyen. The police quickly arrived. Asked whether he had anything capable of causing injury, Nguyen pointed to a small satchel on the table. It contained a fully-loaded 40 calibre semi-automatic handgun. Nguyen was not licensed to possess that firearm or any other. Indeed, he was then prohibited from possessing any firearm as a result of an order issued in 2006 following his conviction for a number of violent offences.

[3] Nguyen was immediately arrested. He and his wife were rushed to the hospital. His wife spent the next two weeks in intensive care. Nguyen was discharged and transferred to the Toronto South Detention Centre ("Toronto South" or "the Centre") about four days after his hospital admission. But for a brief transfer to another facility in May 2017, he has been held at Toronto South for the past 21 months.

[4] On March 9, 2017, Terry Nguyen (hereafter, the offender) pled guilty to unlawful possession of a restricted firearm, knowingly unauthorized possession of the same firearm, and possession of a firearm while subject to an order prohibiting such possession, contrary, respectively, to ss. 95(1), 92(1) and 117.01(1) of the Criminal Code. In view of the nature of the offences, their surrounding circumstances and Nguyen's record for gun-related offences in 2006, the Crown urges a global sentence of seven to eight years: concurrent sentences of six to seven years for the two gun-possession charges and a consecutive sentence of one year for breach of the weapons prohibition. Crown counsel agrees that the prospective sentence should reflect one-and-a-half days of credit for each day of pre-sentence custody, as directed by R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, resulting in a prison sentence, going forward, of approximately 4½ to 5½ years.

[5] Counsel for the offender accepts the fitness of a one-year consecutive sentence for violation of the weapons prohibition. He says, however, that apart from the 1.5:1 credit assigned to the offender's remand detention, the quality of that detention – the lockdowns, restricted access to services and amenities, and other privations – should attract an additional four months of mitigation. Factoring-in these four months, defence counsel proposes that an additional upper-end reformatory disposition of no more than two-years-less-a-day would result in a total effective sentence of five years – adequate, he suggests, to honour the fundamental sentencing principle of proportionality. No objection is taken by the defence to the attachment of a subsequent term of probation (that is, a period of conditions-bound community supervision) that may be imposed where a term of imprisonment does not exceed two years: Code, s. 731(1)(b).

[6] At its narrowest gap, the difference between the defence and Crown positions as to the appropriate global disposition is the difference between five and seven years – that is, two years. Quantum aside, their further point of contention turns on the mitigative effect, if any, of the circumstances (not duration) of the offender's pre-trial custody. While Crown counsel accepts the general proposition that an inmate's detention conditions may have a mitigative impact, he says the nature of this offender's remand custody experience was not such as to reduce the sentence that should otherwise obtain.

[7] There are, then, two primary issues at this sentencing hearing. First, the length of the proportionate global sentence. And second, whether the offender is entitled to any mitigation by virtue of the conditions of his pre-sentence custody and, if so, what degree of mitigation.

[8] Two witnesses were examined and cross-examined in aid of this latter consideration: the offender and Sgt. Travis Williamson, the Security Manager for Toronto South. Williamson's testimony includes reference to a variety of institutional files compiled during the offender's detention at that facility, all of which were entered as exhibits. The offender maintained his own diary of "lockdowns" during his detention. This too forms part of the record.

[9] I turn, then, to the evidence that bottoms both facets of the necessary inquiry.

B. EVIDENCE

(a) Introduction

[10] Little more can be said about the events surrounding the offences. However, the offender's personal history and the circumstances of his pre-sentence custody require some elaboration. Summaries of the relevant evidence follow.

(b) The Offender's Antecedents, Current Circumstances and Prospects

[11] The offender is now 31 years of age. He and his wife, who was seriously injured in the shooting, have been together for 14 years. They have no children. The offender completed high school in Toronto and then enrolled in business courses at Seneca College. He did not complete the program.

[12] I have almost no information pertaining to the offender's subsequent pursuits. It seems clear, however, that he became deeply immersed in the culture of criminal street gangs. On February 21, 2006, he was convicted of trafficking in a Schedule I drug in Toronto. A penitentiary sentence of 30 months followed – a very substantial sentence for a youthful first offender. On September 20, 2005, and while on bail for the trafficking offence, he, along with three armed accomplices under the age of 18, participated in a brutal home invasion in Windsor. The four felons were apprehended after a tense police stand-off. Five prohibited and restricted firearms were located following a search of the invaded residence.

[13] After crediting Nguyen's pre-sentence custody of approximately five months, on March 29, 2006 the offender was sentenced to a further five years of incarceration for his role in the armed robbery, along with lengthy concurrent sentences for forcible confinement and firearms, breach of recognizance and property-related offences. This disposition was consecutive to the 30 months he had received a month earlier in Toronto for drug trafficking, resulting in a cumulative sentence of approximately 7½ years. As already noted, he was also prohibited from possessing any firearms or other offensive weapons for the rest of his life. The offender was only 20 years old at the time.

[14] Nguyen was released on day-parole in January 2010. He had by then been incarcerated for about four years. He hit his statutory release date approximately a year later. I know very little about the offender's activities between the time he was released on parole and his arrest for the immediate offences on September 20, 2015. He returned to Seneca College to pursue a Business Administration diploma in 2011-12, but I remain ignorant as to his academic performance or how many semesters, if any, he completed. In any event, there is no evidence that he did other than comply with his federal parole conditions. And he attracted no fresh offences prior to the incident that brings him before me. Nonetheless, it appears that he had difficulty extricating himself, if such was his intention, from the criminal gang rivalries that characterized his youth. While he testified to trying to "transition out" of his "old lifestyle", its shadow remained sufficiently pressing and immediate in September 2015 that Nguyen felt compelled to carry a loaded handgun to dinner in a public restaurant. As he said in cross-examination, he felt targeted and in need of protection. As it turned out, he was right.

[15] Whatever his criminal involvements, the offender clearly enjoys the support of his wife, family and many close friends who, in some 15 letters, describe him as an intelligent, kind and respectful man who serves his community and provides avuncular guidance. Terry Nguyen, it is consistently said, regrets his "missteps", "transgressions" and "poor decisions". He is determined, the letters chorus, to turn his life in a positive direction.

[16] The offender's own letter reflects similar themes. He accepts personal responsibility and expresses deep remorse. "I seek", he writes, "redemption for my mistakes and strive to become better". He means to "close this chapter for a new beginning". To this end, he and his wife plan to move out of greater Toronto, raise a family and pursue an entrepreneurial career in the alternative energy industry. A letter on corporate letterhead affirms an offer, upon the offender's release, of a fulltime position with a Toronto-based solar power company with international projects.

[17] The offender's statement to the sentencing court in Windsor in 2006 included a similar apology, expression of regret and resolve to rehabilitate himself. It was not, however, accompanied by a proffer of employment or display of the broad support he currently enjoys among friends and family.

(c) The Offender's Remand Custody Experience

[18] The offender was first lodged in the medical unit at Toronto South. He had been prescribed morphine to deal with the pain associated with his injury while in the hospital. Despite continuing discomfort, his pain management was addressed exclusively with Aspirin or Motrin (both over-the-counter analgesics) within a few days of his transfer to the Centre. He remained in the medical unit for approximately a month before being moved to a two-person cell in a regular "living unit". He says his treatment in the medical unit consisted of no more than routine changes of bandages.

[19] The offender's gunshot injury left him with limited range of motion in his neck and left arm during his first few months at Toronto South. Despite these concerns, he was never afforded any physical rehabilitation while an inmate at the Centre. The offender's own efforts to recover his strength and mobility by way of lifting and stretching exercises were compromised by frequent lockdowns, a matter to which I soon return. He testified to some residual pain and disability in his left arm.

[20] The offender entered Toronto South with orthodontic issues for which braces had been installed more than a year earlier. Absent routine attention, the dental hardware deteriorated leading to internal cutting and other discomfort. Toronto South's medical staff could not directly attend to the offender's condition. With the assistance of the facility's dentist, the offender was permitted to make several visits to his own orthodontist while escorted by prison guards. The offender was required to pay for the off-site dental services.

[21] Some programming is available to inmates at Toronto South. The offender did attend several Narcotics Anonymous meetings, but most programs were inappropriate or of no personal value. Very few educational programs were on offer. The offender did enroll in a "Business Fundamentals" course delivered by Centennial College. There were no classes, but the offender was provided with textbooks and met with an instructor once or twice a week. He received an "A" grade on completion of the program. As with his orthodontic treatment, the offender had to personally pay for this service.

[22] Asked in cross-examination to compare his detention at Toronto South with his incarceration in the federal penitentiary system (where he had served about four years), the offender said it was "like night and day". Conditions, he explained, were much harsher in the remand environment than in a prison.

[23] The offender's claim to oppressive pre-trial detention rests largely on the frequency and impact of the lockdowns at the Toronto South facility. At the time of his sentencing hearing on May 31, 2017, the offender had spent just over 20 months at Toronto South. Of these approximately 620 days, the offender recorded some 410 days during which he endured lockdowns: "full" (all-day) lockdowns on 216 days and "partial" lockdowns (lasting several hours, at minimum) on the remaining 194. Put otherwise, the offender was exclusively confined to his cell for some or all of two-thirds of the nearly two-years he had by then spent in remand custody.

[24] The Toronto South Detention Centre's own data, as tendered through Sgt. Williamson (the facility's security manager), also record a very high incidence of lockdowns. However, the Centre's numbers do not perfectly mirror the offender's. This appears to reflect a lack of recording rigour, inconsistent reporting, and the Centre's practice of using the words "full" and "partial" to distinguish between institution-wide lockdowns (that is, "full") and those that affect only a portion of the facility. The offender documented the frequency and nature of the lockdowns that he personally experienced in his living unit. I accept the offender's tally of the institutional lockdowns to which he was subject and rely on it for my assessment of the mitigative impact, if any, attributable to the circumstances of his remand custody.

[25] Inmates at Toronto South are housed in pod-like ranges: an array of 20 compact cells (each of which ordinarily houses two persons) open onto a large, supervised common or shared area equipped with chairs, tables, television, payphones and other modest amenities. The arrangement is intended to allow prisoners to walk, exercise, socialize and pursue personal interests for up to 14 hours a day – from 7am to 9pm, when they are returned to their cells. There is supervised access to a locked "yard", consisting of a concrete pad surrounded by very tall walls. The area of the yard is so small that only a single basketball hoop can be accommodated. It is, however, the remand prisoners' only opportunity to breathe fresh air. Visits with family or counsel are conducted by way of video communication; there are no "personal" meetings.

[26] Inmates are locked in their cells overnight, from 9pm to 7am. When "locked-down", prisoners are confined to their locked cells through the entire day ("full" lockdowns) or throughout the hours-long duration of any "partial" lockdowns. Their meals are then eaten in the locked cells as opposed to tables in the common area. As Sgt. Williamson explained, during lockdowns remand prisoners have "in reality" no access to the common area, phones, TV, the yard, fresh air, library facilities, other ordinary amenities, or the company of inmates other than one's institutionally-assigned cellmate. Showers are only rarely provided and family visits are curtailed. Lockdowns can stretch "for days on end" – up to ten days during at least one span experienced by the offender.

[27] Occasional lockdowns are to be expected in any correctional institution. Speaking of the Toronto South facility in R. v. Bedward, 2016 ONSC 939, at para. 22, B.P. O'Marra J. observed that a "lockdown is not the norm within the institution and it should not be viewed as such". Unfortunately, the occurrence of lockdowns at Toronto South are so frequent as to have become the norm. Further, their near-everyday recurrence is predominantly a function of systemic under-resourcing. As Sgt. Williamson volunteered, Toronto South is "chronically understaffed". Indeed, the filed "Daily Lockdown Report" records only two occasions among more than two hundred institutionally documented lockdowns when the event was attributed to any "reason" other than "staff shortage".

[28] As the offender testified, the lockdowns proved both personally and generally frustrating. They inevitably led to range-wide tension with the guards and the constant risk of more intimate conflict with a random cellmate enduring a similar sense of indefinite confinement and ancillary anxieties. For the offender, the extended lockdowns also directly interfered with his own effort to pursue an exercise regime intended to rehabilitate his arm following his gunshot injury.

C. ANALYSIS

(a) Introduction

[29] Having outlined the relevant evidentiary record, I move first to the mitigative value, if any, to be ascribed to the circumstances – not the duration – of the offender's pre-sentence custody. I then address the ultimate question: the fit sentence for the three offences to which the offender has pled guilty.

(b) Assessing the Mitigative Value of the Offender's Pre-Sentence Custody

[30] The history of assigning credit for pre-sentence custody has been well rehearsed. It is now firmly established that the loss of parole or remission warrants a compensatory adjustment on sentencing. The approach to be taken to the hardships of remand custody is now also settled, at least in Ontario: an evidence-based discretionary assessment of both the harshness of the remand conditions and their impact on the individual offender. The dispute between the parties turns on the correct interpretation and application of this latter formula. A brief review of the evolution of the doctrine may help to locate, illuminate and ultimately resolve the immediate debate.

[31] Prior to passage of The Truth in Sentencing Act, S.C. 2009, c. 29, sentencing courts dealing with remand offenders routinely treated each day of their pre-sentence custody as the equivalent of two days, and then deducted this total from the sentence which would otherwise be imposed. The Truth and Sentencing Act amended s. 719 of the Code so as to limit credit for "any time spent in custody" to a maximum of 1.5 days for each day of pre-sentence detention. Conflicting lower court readings of the scope and meaning of the amended provision were resolved by the Supreme Court in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. The Court's official headnote neatly captures the historical background to the issue:

Courts generally gave enhanced credit, at a rate higher than one day for every day of detention, for two reasons. First, statutory rules for parole eligibility and early release do not take into account time spent in custody before sentencing. Therefore, the quantitative rationale recognized that pre-sentence detention almost always needs to be credited at a rate higher than 1:1 to ensure that an offender who is released after serving two thirds of his sentence serves the same total amount of time in jail whether or not he is released on bail. Second, the qualitative rationale for enhanced credit recognized that conditions in detention centres tended to be harsher than corrections facilities. [Emphasis in original.]

Speaking unanimously, the Court, at para. 70, then re-endorsed the sentencing methodology that preceded the 2009 amendments:

While there is now a statutory maximum, the analytical approach … otherwise remains unchanged. Judges should continue to assign credit on the basis of the quantitative rationale, to account for lost eligibility for early release and parole during pre-sentence custody, and the qualitative rationale, to account for the relative harshness of the conditions in detention centres. [Emphasis added.]

Then, at para. 71, the Court effectively replaced the pre-2009 common law ratio of 2:1 with a 1.5:1 metric that conforms to the credit cap imposed by s. 719:

The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely. [Emphasis added.]

(See, also, para. 79.) As earlier noted, the parties agree that the offender should be granted credit for his pre-sentence custody on the 1.5:1 basis.

[32] Although the 1.5:1 approach satisfied the quantitative rationale for the granting of pre-sentence custody credit, the Court, at para. 72 in Summers, immediately recognized that there were inevitably cases where it did not serve the qualitative rationale: the "unavoidable consequence of capping pre-sentence credit at this [1.5:1] rate is that it is insufficient to compensate for the harshness of pre-sentence detention in all cases" (emphasis in original). In the very next paragraph, para. 73, the Court advanced a solution to the risk of such inequity:

Individuals who have suffered particularly harsh treatment … can often look to other remedies, including under s. 24(1) of the Charter". [Emphasis added.]

Put otherwise, the Supreme Court made clear that relief for difficult or oppressive pre-trial custody hardship remains available – but outside the compensatory scheme afforded by s. 719. As affirmed by many subsequent applications of the principle, it is also clear that the word "including" encompasses remedies other than by way of a claim of constitutional violation.

[33] In my view, as set out in R. v. Doyle, 2015 ONCJ 492, 23 C.R. (7th) 325, at para. 37, several instructive propositions may be drawn from paragraph 73 and some surrounding comments in Summers. Slightly abbreviated, they read:

• "Harshness" is … a case-specific variable measured not only by an objective appraisal of remand conditions but, to a large degree, by the relative vulnerability or resilience of the offender at issue. As put directly, at para. 29, the "impact" of qualitative hardships "varies depending on the particular offender's needs, character and disposition". This, inevitably, involves a "fact-dependent and discretionary exercise".

• Where the requisite "harsh treatment" is established, relief by way of sentence reduction is neither rare nor unusual. Rather, offenders who crest this threshold "can", as the Court directs, " often look to other remedies" than those afforded through s. 719 of the Code.

• Finally, the standard of " particularly harsh treatment" is [not a] daunting hurdle. … Proof of a meaningful personal nexus to pre-trial hardships undoubtedly falls to an offender seeking supplementary relief. However, the Court's opening language makes clear, at para. 2 of Summers, its unanimous recognition, as a matter of notorious fact, that "conditions in remand centres tend to be particularly harsh ". In short, exceptionality is not a pre-condition to meeting the test for mitigation founded on qualitative hardship.

[34] In R. v. Duncan, 2016 ONCA 754, the Court of Appeal (if only by way of a brief Endorsement, and absent an express reference to Summers or any other authorities) addressed the same issue of mitigative credit for harsh pre-sentence custody. The Court held that the trial judge erred when, in construing, s. 719, she, "effectively held that any credit or consideration in relation to presentence incarceration was capped at the 1.5 limit". The Court continued:

We agree with counsel that in the appropriate circumstances, particularly harsh presentence 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 . [Emphasis added.]

[35] Applying this latter rule, the Court declined to further reduce the sentence imposed at trial. Much as in the matter before me, the harsh conditions endured by the appellant in Duncan amounted to a "pattern of … worrisome" lockdowns. However, the Court noted, the appellant appears to have "made positive rehabilitative steps during his presentence incarceration". And most critically, there was "no evidence of any adverse effect on the appellant flowing from the locked down conditions". The Court of Appeal's only reported re-visiting of the issue generated an identical result for identically worded reasons: R. v. Henry, 2016 ONCA 873, at para. 9. In both cases, to use the language of Doyle, supra, the appellant had failed to establish "[ p]roof of a meaningful personal nexus to [the] pre-trial hardships".

[36] R. v. M.C.D., 2017 ONSC 3174 illustrates the application of similar reasoning at the trial level. While the appellant in M.C.D. had been subject to numerous lockdowns, he had also been sentenced to 180 days in segregation following 27 findings of institutional misconduct. And again, and again critically, "no evidence was provided" as to any prejudice the lockdowns may have caused him.

[37] In contrast, a growing number of recent Ontario Superior Court decisions have anticipated or relied on the logic of Duncan to reduce the length of otherwise proportionate sentences to reflect the oppressive conditions (typically, protracted periods of lockdown) endured by an offender while in remand custody. See, for example: R. v. Bedward, supra; R. v. Shah, 2016 ONSC 2651; R. v. W.V., 2016 ONSC 7661; R. v. Campbell, 2017 ONSC 26; R. v. Nsiah, 2017 ONSC 769; R. v. Cook, 2017 ONSC 1434; R. v. Hall, 2017 ONSC 3003; and R. v. Johnson, 2017 ONSC 3512.

[38] In my view, the circumstances of Terry Nguyen's pre-sentence custody bring him firmly within this latter camp. Unlike M.C.D., there is here ample evidence, as said in Duncan, of "both the conditions of the presentence incarceration and the impact of those conditions on the accused". The offender was locked-down for two-thirds of the 21 months he spent in pre-sentence custody. He was confined – physically caged – in a small, windowless cell 24-hours-a-day for more than seven months. He was confined to the same cell for all but a few hours a day for close to another seven months. During these lockdowns, his access to mobility, exercise, human communication, fresh air, showers, family visits and educational and recreational facilities was severely restricted if not entirely denied.

[39] While security concerns, accidents and incidents of inter-prisoner violence may well explain the occurrence of occasional lockdowns in any remand centre, no such justifications were advanced in this instance. Nor was the offender's confinement a product of misconduct that led to a disciplinary response. The explanation was simple, systemic and, frankly, close to unconscionable: the offender was confined to his cell for days on end solely because of chronic understaffing. Put otherwise, his disheartening, if not appalling, living conditions (like those of many other prisoners) were solely attributable to the neglect or indifference of the state.

[40] Those held in pre-trial custody are presumed innocent; some are factually so. Yet, as recognized by the Supreme Court in Summers, at para. 28 (and as affirmed by the offender's own experience), "time in pre-trial detention is often more onerous" than are the conditions of those who have been tried, found guilty and incarcerated for their offences. The volatility of remand populations – the uncertainty of the duration of any inmate's detention and the unpredictability of the number of fresh intakes, for but two source-problems – inevitably creates correctional management challenges that contribute to congestion and impinge on the provision of what little rehabilitation and educational services exist. The complaint here, however, is not one of triple-bunking or substandard physical facilities but, rather, the state's failure, over a course of years, to maintain that minimal staffing quota necessary to permit the offender, among hundreds of other inmates, a significant daily respite from the stifling confinement of his cell. The scenario offers yet another unfortunate illustration of how the most disadvantaged in our society – here, those denied or unable to make bail – are often those most poorly treated.

[41] In R. v. Nsiah, 2017 ONSC 769, at para. 19, Goldstein J. recently invoked a literary classic to convey his similar assessment of the conditions that prevail at Toronto South:

During a lockdown the inmates are more or less confined to their cells. They do not have the opportunity to shower, exercise, socialize, or have access to the programs that will assist them when they re-integrate back into the community. … In other words, the lockdowns represent a modern form of the harsh Dickensian conditions that motivated the Victorian movement towards prison reform. The lockdowns are a regressive form of punishment that represents the opposite of an enlightened penal regime.

[42] Unlike many of the cases in which qualitative pre-sentence custody credit is denied, the offender filed an affidavit and was examined and cross-examined as to his remand conditions and their personal impact. Unsurprisingly, the lockdowns were tedious, exacerbated the inevitable institutional tension, and contributed to the offender's stress and anxiety. They also impeded the offender's recovery from his injury. Not only did he not receive any physical rehabilitation, but his own efforts to strengthen his damaged arm were frustrated by his confinement to his cell and the resulting narrowing of opportunities to exercise. While the offender was provided with necessary orthodontic care, it was only off-site. It was also at his own expense, as was the sole educational program he was able to fruitfully access. As said in Summers, at para. 82: "any circumstances that speak to the relative harshness of pre-sentence custody, as opposed to serving a sentence, are relevant".

[43] The "relative harshness" of the offender's pre-sentence custody is not as egregious as in cases where a remand prisoner has endured routine race- or gender-based harassment, been exposed to violence at the hands of guards (R. v. Munoz, 2006 ABQB 901), or, as in Doyle, supra, suffered painful trauma as a consequence of a detention facility's mismanagement of a chronic medical condition. Nonetheless, I find adequate "harshness" in the offender's remand circumstances to attract some mitigation on sentence.

[44] As noted earlier, the methodology of assessing the impact of remand conditions is fact-driven and discretionary. The exercise is much like that involved in determining whether compliance with strict bail conditions, typically "house arrest", are of mitigative effect and, if so, their influence on tailoring a fit sentence. As to the latter question, there are two judicial camps. One assigns a numerical value, usually measured in days or months, and deducts that quantum from the sentence otherwise viewed as appropriate. The second position, and the one to which I subscribe, treats the "particularly harsh" impact of pre-sentence custody as a factor that, like aggravating and other mitigating factors, is assigned appropriate, but not arithmetically exact, value in the global assessment of a just sentence.

[45] Unlike the assignment of quantitative credit for pre-sentence custody, the assessment of qualitative inequity is, in my view, a much more nuanced exercise, one that does not naturally lend itself to a mathematical computation based on a compensatory formula. I appreciate that other jurists have adopted the alternative approach. I also appreciate that the fixing of any sentence ultimately requires assignment of a concrete numerical value. Nonetheless, I suggest that the preferred approach to evaluating the mitigative force of a claim to harsh remand conditions is effectively the same as that proposed by the Manitoba Court of Appeal in R. v. Irvine, 2008 MBCA 34, 231 C.C.C. (3d) 69, at para. 27, with respect to assessing the impact of rigorous bail conditions:

The impact of the bail conditions on an accused person are to be "put into the mix" along with other potential mitigating factors … Time spent on pre-trial bail, in contrast to pre-trial custody, does not form part of the punishment itself; rather, it forms part of the initial analysis to arrive at the fit and appropriate sentence. There is no potential "credit" to be given in calculating the sentence, as there is … for [the quantum of] pre-trial custody. It is simply a potential mitigating factor.

[46] In the end, the different methodologies may make no material difference. Although initially in the "numerical" camp (see the seminal case of R. v. Downes, 205 C.C.C. (3d) 488), the Ontario Court of Appeal has more recently extended its sanction to both approaches. As said in R. v. E.B., 2013 ONCA 429, at para. 10: "Identifying the precise mathematical calculation of the credit [for rigorous bail conditions] is not required". (See also: R. v. R.O., 2015 ONCA 814, 333 C.C.C. (3d) 367 at para. 58; and R. v. Nsiah, supra, at para. 20.) What, in my view, is required is the need to differentiate between stringent bail terms, including strict house arrest, and oppressive remand conditions. In translating the logic of Downes to an assessment of the qualitative hardships associated with pre-sentence custody, I note, as I did in Doyle, at para. 47, that, "[n]o matter how stringent, bail terms invariably pale in comparison to the conditions of total confinement and institutionalization endured by pre-trial detainees". Or as "put bluntly" by the Court of Appeal in R. v. Panday, 2007 ONCA 598, 226 C.C.C. (3d) 349, at paras. 31-32:

[B]ail is not jail. … [T]he pith and substance of bail is liberty, whereas the essence of jail is a profound loss of liberty.

[47] I turn my attention, then, to consideration of the several other factors that bear on the crafting of a fit sentence in this case.

(c) Crafting a Proportionate Sentence

[48] The "fundamental principle" of sentencing, as prescribed in s. 718.1, is that a sentence be "proportionate to the gravity of the offence and the degree of responsibility of the offender". Restated by the Supreme Court in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 12, "the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender". Individualization is the key to the proper application of sentencing discretion. While sentencing ranges may serve as guidelines, they ought not dictate a fit sentence or frustrate the individualized assessment of a proportionate result. As said in Lacasse, at para. 57:

Sentencing ranges … should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case.

[49] The offences at immediate issue were unquestionably grievous. The offender was in possession of a fully-loaded, unregistered handgun for a dangerous purpose in a downtown commercial restaurant. The gun was intended protection from the offender's well-founded fear that he was might be violently assaulted. By carrying the gun into a public space, he placed innocent others in harm's way. That this harm was avoided is no tribute to the offender. Further, he was subject to a lifetime prohibition on the possession of any firearms or other offensive weapons – an order imposed some nine years earlier to deter the very jeopardy his conduct triggered. His offences were considered, deliberate and assumed an advertent risk. The offender alone is accountable for their gravity. Whatever circumstances made him the target of a near-lethal attack were of his own manufacture, complicity or continuing misadventure.

[50] The offender's history and personal circumstances do little to alleviate his moral responsibility. He has a criminal record for drug trafficking, a brazen home invasion and gun-related offences. Despite his youth, he has twice been sentenced to penitentiary-length terms of imprisonment. Despite the severity of these sentences, he appears to have done little if anything since his release to disengage from criminal gangs and their violent rivalries. Nor is there any real-world demonstration, as opposed to rhetoric, signaling a change of direction. While the offender is described as intelligent and motivated, I have no evidence of any substantial academic accomplishments, employment, lawful business investments or enterprise.

[51] In fairness, the offender, at 31, is still relatively young. He maintains the support of a strong network of family and reputable friends. He has a serious job offer in a legitimate industry. He has plans, shared by his wife, to physically move to a new community. He has resolved, he says, to reform and devote his life to positive endeavours.

[52] The offender has exhibited a capacity to comply with state-supervision. For close to six years following his release he avoided any documented conflict with the criminal law. He also pled guilty. While not an "early plea", he did accept responsibility for these offences before any culpability hearing commenced and at the cost of abandoning arguable Charter claims. I am also told that he co-operated with the police, although I do not know in what manner or to what degree. And, of course, he endured at least 410 days of lockdown, more than half of which – almost 7½ months – were "full"-day confinements and none of which were a product of his own misconduct.

[53] The nature of the offences command a sentence that gives ample weight to the goals of denunciation and deterrence – not only general deterrence but, given the offender's recidivism, an adequate measure of individual deterrence as well. These objectives need be balanced by concern for the prospect of rehabilitation: as noted, the offender is intelligent, still relatively young, has strong familial and community support and the promise of lawful, remunerative employment on his release. The ultimate sentence should be one that doesn't extinguish the possibility of a normative reintegration. It should also be one that honours the principle of restraint. And it should be a sentence that protects the public both through close control and monitoring of the offender and encouragement of his moral reformation.

[54] No mandatory minimum sentence attaches to any of the charges to which the offender has pled guilty. Experienced counsels' submissions – for global dispositions of between five and eight years – respect the gravity of the offences and the aggravating and mitigating features that flow from the offender's antecedents and his role in both the incident and the resolution of the resulting charges. The authorities advanced by Crown and defence counsel reflect the ranges bookended by their sentencing postures. There is no further need to canvass, let alone endeavour to finely reconcile these many cases. As is clear from the Court of Appeal's decision in R. v. Slack, 2015 ONCA 94, 321 C.C.C. (3d) 474, at para. 23, "offenders convicted of 'truly criminal conduct' in relation to firearms must receive exemplary sentences that emphasize deterrence and denunciation". The sentencing positions proposed by counsel, and the one I intend to impose, well meet this objective.

[55] In my view, a global period of state control in the seven- to eight-year range advanced by the prosecution is here appropriate. I do, however, structure the sentence differently than that urged by Crown counsel so to better balance punishment with the prospect of rehabilitation through close individualized supervision. Put otherwise, the sentence is structured to cascade the offender through stages of state management while encouraging his assumption of personal responsibility and, if and when merited, incremental liberty.

[56] Translated to concrete numbers, the offender is sentenced to serve two years in a federal penitentiary, commencing today. That sentence will be followed by three years of probation. But for the seemingly nominal distinction of one day, the carceral portion of this disposition is facially little different than the maximum reformatory sentence of two-years-less-a-day proposed by defence counsel. In my view, however, it is important that the offender's imprisonment be served in a federal penitentiary. This result serves a symbolic or communicative function. More importantly, it allows for closer supervision and greater offender accountability than would a reformatory-length disposition. Rather than almost certainly being released from a provincial reformatory with little subsequent state oversight, other than eventual probation, upon reaching the remission stage – the two-thirds point – of his sentence, a prisoner serving a penitentiary sentence will, depending on the exact determination of the federal parole authorities, be subject to stringent parole supervision, including residence in a correctional half-way house, until the expiry of his warrant of committal.

[57] Restated, over the course of the next five years the offender will be subject to incarceration, followed by parole at the discretion of the federal parole authorities, followed, in turn, by three years of provincially-supervised probation. To be clear, the carceral portion of this sentence incorporates, by way of mitigation, consideration of the qualitatively harsh circumstance of his remand custody at Toronto South. The prospective sentence is also "on top" of the quantitative credit assigned the offender's pre-sentence custody. A refinement of these components of the offender's sentence and the terms and conditions of his probation order follow.

[58] By my calculation, the offender has served 650 days (or close to 22 months) in pre-sentence custody. Applying the rule in Summers, this period converts to 975 days – that is, the equivalent of two years and eight months that the defendant is deemed to have already served. But for these approximately 32½ months of remand detention, the sentence of incarceration imposed on the offender today would extend for at least 56 months, or four years and eight months. To be crystal clear, the sentence would be longer still but for the mitigative force of the hardships – in particular the almost unrelenting lockdowns – that characterize the offender's pre-sentence custody at the Toronto South Detention Centre.

[59] The disposition is also crafted to allow for community supervision by way of a probation order. There is no power to order probation if the carceral sentence imposed on an offender is any longer than two years. Constructing the disposition in this manner – a penitentiary sentence followed by parole followed by probation – allows for five years of state supervision in addition to the almost three years, as legally "enhanced", of close custody the offender has already completed.

[60] As directed by s. 719(3.3) of the Code, 300 days of the offender's pre-sentence custody is assigned to each of the two firearms offences, credited, in each case, as the equivalent of 450 days. The remaining 50 days of the offender's pre-sentence custody is assigned to the breach of the weapons prohibition order, converted to 75 days for sentence calculation purposes. These attributions total the offender's 650 days of pre-sentence custody, "enhanced" to 975 days on application of the 1.5:1 metric. Going forward, the offender is sentenced to 14½ months, concurrent, for each of the firearms offences and 9½ months consecutive for violation of the weapons order – for a total of exactly two years to be served in a federal penitentiary. Combining pre- and post-sentence detention, the sentence imposed for breach of the offender's weapons prohibition order reflects counsels' agreement that a one-year consecutive sentence is here appropriate.

[61] Three concurrent probation orders of three-years duration commence immediately upon completion of the offender's sentence of imprisonment. He is, of course, to comply with the statutory conditions of such orders, including keep the peace and be of good behaviour. He is to report forthwith upon his release to a probation officer and thereafter as required. He is to reside at an address approved of by his probation officer and advise that officer of any change of address at least 24 hours in advance of such change. He is not to possess any weapons, as defined in the Criminal Code, or apply for any firearms acquisition certificates or gun licenses. He is to pursue his education or seek and maintain employment and keep his probation officer informed of his efforts and progress in these regards. And he is not to leave the province of Ontario without written permission of his probation officer or a court-approved variation to the terms of his probation.

[62] By way of ancillary orders, the offender is prohibited, yet again, from possessing any firearms, ammunition, explosives or other offensive items proscribed by s. 109 of the Code for the rest of his life. He is also to provide a sample of his bodily substance for DNA analysis, a quick and hygienic procedure that the police, in their discretion, may forgo upon satisfaction that the authorities have already archived the results of an earlier DNA contribution from the offender.

D. CONCLUSION

[63] As just recited, the offender, Terry Nguyen, is sentenced to two years of imprisonment followed by three years of probation. DNA and weapons prohibition orders complete this disposition.

Released on June 29, 2017

Justice Melvyn Green

Footnote

• The dubious evidentiary value of the lockdown records maintained by Toronto South are a matter of notorious concern. In R. v. Bedward, 2016 ONSC 939, at para. 21, B.P. O'Marra J. expressed his "surprise at the lack of precision" tendered by the officer who then held Sgt. Williamson's position. And Williamson's own testimony on the same issues in the case of R. v. Callaghan, 2017 ONSC 1853 moved Garton J., at paras. 108-117, to closely detail many of the same inconsistencies in the Centre's data that were patent at the instant hearing. In the end, Justice Garton was unable to rely on the Toronto South documentation. She noted, however, that Williamson assured the Court that "steps have been taken or are being taken to address these deficiencies". That assurance was tendered in January 2017. As of the end of May 2017, when Williamson testified in the matter before me, nothing appears to have been done to improve the integrity of the Centre's records or otherwise remedy the situation.