Court File and Parties
COURT FILE NO.: CR-17-10000831-0000 DATE: 20190611 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – TAL SINGH FERMAH Defendant
COUNSEL: Emily Marrocco and Gary Valiquette, for the Crown Nakita C. Kelsey, for the Defendant
HEARD: April 8 and June 6, 2019
MOLLOY J.
REASONS FOR SENTENCE
A. INTRODUCTION
[1] Tal Singh Fermah was arrested by Toronto police on January 6, 2017. The arrest followed a search of Mr. Fermah’s apartment pursuant to a search warrant. The officers searching the apartment found a lockbox, which contained a Glock handgun, two magazines carrying ammunition, a weigh scale, a box of small baggies, and 111 grams of heroin. Mr. Fermah was transported to the police station in the back of a police cruiser. A police officer searched the rear of the cruiser after Mr. Fermah was removed from it and found a further small quantity of heroin (1.4 grams) under the rear seat. Mr. Fermah was charged with possession of a restricted firearm together with readily accessible ammunition, and possession of both the heroin in the lockbox and the heroin in the back seat of the cruiser for the purposes of trafficking.
[2] Mr. Fermah has been in custody since the date of his arrest on January 6, 2017.
[3] He elected to be tried before me without a jury. The defence challenged the validity of the search warrant. I found the search warrant to be valid and the fruits of the search to be admissible. Based on that evidence, the evidence of the police officers involved in the search and arrest, and some admitted facts, I found Mr. Fermah to be in possession of the Glock handgun and both quantities of heroin. I further found that the heroin in the lockbox was possessed for the purposes of trafficking. I was not satisfied beyond a reasonable doubt that the 1.4 grams of heroin Mr. Fermah had on his person at the time of his arrest (which he managed to hide in the police car) was possessed for the purposes of trafficking. I therefore convicted him of simple possession in respect of that quantity of heroin. I issued written reasons for my decision on the search warrant and on the substantive charges on January 30, 2019. [^1] The matter was then put over for sentencing.
[4] The sentencing hearing proceeded before me on April 8, 2019. The Crown sought a global sentence of 8 years and agreed that Mr. Fermah was entitled to the usual 1.5:1 credit for the time he had served to date. The defence submitted that the appropriate sentence would be 4 years and that Mr. Fermah should be given an enhanced credit because of the hardship he had endured during his pre-trial custody, such that he should have no remaining time to serve.
[5] The material supporting the claim for the enhanced credit was not yet available at the time of the initial sentencing hearing. I proposed that I decide that issue based on written material and written submissions, which both counsel agreed would be feasible. The primary purpose in doing this was to reduce the inconvenience for Mr. Fermah’s parents, who wish to be present at all court proceedings but who live in New Jersey, which makes repeated attendances more difficult.
[6] The defence written material was delivered in accordance with the proposed schedule. Mr. Fermah has a seizure disorder flowing from a serious car accident approximately 12 years ago. He requires daily medication to control those seizures, and is also on prescribed medication for a pre-existing anxiety disorder. The defence material included an affidavit sworn by Mr. Fermah alleging that while he was in custody at the Toronto South Detention Center (“Toronto South”) there were many periods of lockdown, which have had a profound effect on him. He also alleged that Toronto South staff have persistently failed to meet his medical needs by: failing to provide his medication on time and in the correct dosage; missing doses of prescribed medication altogether; failing to provide a medically prescribed dietary supplement; neglecting a serious gastrointestinal problem; failing to address a recently discovered and possibly cancerous brain tumour; and repeatedly assigning him to sleep in the upper bunk in his cell notwithstanding his seizure disorder, with the result that he had to sleep on the floor for his own safety.
[7] Due to the nature of the allegations made in the defence material, I granted extensions to the Crown to file responding material. After the Crown delivered responding material, the defence sought to cross-examine the deponents of the two affidavits filed (a nurse from the medical unit at the Toronto South and a senior corrections officer). Accordingly, when the matter next came before me on June 5, it was for the purpose of continuing the sentencing hearing with viva voce evidence and oral submissions, rather than the delivery of my sentencing reasons as previously contemplated. This stage of the sentencing hearing proceeded before me over the course of two days, although interrupted by other matters from time to time.
[8] Before I received the submissions on the enhanced credit, I had already determined what I thought to be a fit sentence for Mr. Fermah’s offences and had sketched out hand-written reasons, which I intended to deliver orally. The only issues remaining were a possible reduction recognizing that serving time might be more difficult for Mr. Fermah because of his disabilities and the amount of credit to be given for time served. By the end of the day on June 6, 2019, it was apparent to me that these additional issues were sufficiently complex that I could not do them justice by simply delivering oral reasons off the top of my head. However, after reviewing the material, hearing the witnesses, and considering the submissions of counsel, it was also apparent to me that it would be an injustice to require Mr. Fermah to spend any further time in custody at the Toronto South. I do not accept the truth of everything in Mr. Fermah’s affidavit. Some of it is exaggerated, and some of it is simply not accurate. However, enough of it has been established to demonstrate that his time in custody has been excruciatingly difficult for him and his family. I am shocked and appalled by the lack of adequate care and its impact on Mr. Fermah.
[9] As I advised in open court on June 6, 2019, I consider the appropriate sentence to be 7 years, subject to adjustment for the two issues I mentioned (impact of the disabilities and credit for time served). Mr. Fermah has already served 2 ½ years. On June 6, 2019 I imposed a global sentence of 7 years, and allowed a credit of 7 years for time served, with the result that Mr. Fermah has no time remaining to serve. I advised that my written reasons would follow. Those reasons are set out below.
B. CIRCUMSTANCES OF THE OFFENDER
[10] Mr. Fermah is now 32 years old. He is originally from India, but his parents immigrated from India to the United States when he was two years old and his sister was six. Both children initially stayed with their grandparents in India, but joined their parents in New York four years later. Mr. Fermah’s parents and sister (who is now married with children) continue to reside in New Jersey.
[11] Mr. Fermah is a citizen of the United States. He married a Canadian in 2013 and was living with his wife in Toronto at the time of his arrest. Initially, she was also jointly charged with these offences. The marriage ended in divorce in 2018, largely as a result of these charges. Mr. Fermah has no legal basis for remaining in Canada upon the completion of his sentence. He has been placed on an immigration hold and will be deported upon completion of his sentence. His plan is to reside with his parents in the United States after his release from prison here. He advises that he has already signed the paperwork consenting to his deportation.
[12] Mr. Fermah appears to have a close relationship with his family in New Jersey. Both of his parents are hard-working, productive individuals. Mr. Fermah’s father owned a clothing store in India and continued to work in that industry in the United States. Currently, he is employed managing multiple American retail stores. The family has remained supportive throughout this matter and have expressed shock that Mr. Fermah would have involved himself in anything of this nature. From what they know of him, it appears to be completely out of character.
[13] Mr. Fermah himself has a solid work history, starting from a young age. He has a post-secondary degree in mechanical engineering, and before moving to Canada was a top-level automotive technician in New Jersey, licensed to work on the most complex parts of luxury cars. Prior to his arrest, he was working for his cousin who owns a trucking business.
[14] Mr. Fermah was involved in a serious car accident when he was in his 20’s. As a result of the injuries he sustained, he has a seizure disorder that requires daily anti-seizure medication, likely for life. He has had several seizures during his time in custody. He also suffers from anxiety, which he reports has been exacerbated since his time in custody.
C. DENUNCIATION AND DETERRENCE
[15] Given the serious nature of the drugs involved and the combination of a large quantity of heroin with an illegal firearm and ammunition, the priority in determining an appropriate sentence must be denunciation, deterrence and the protection of society. [^2]
[16] Although Mr. Fermah is a first-time offender with good prospects for rehabilitation, the serious nature of these crimes requires the imposition of a penitentiary term.
D. MITIGATING AND AGGRAVATING FACTORS
[17] This was a large amount of heroin – 111 grams. Based on the evidence at trial, this would be the equivalent of between 555 to 1,110 individual hits. Looked at that way, the menace to society is readily apparent. The value of the heroin was estimated at trial at between $13,000 and $22,000, depending on the amounts sold at one time. The dangerous, harmful nature of heroin and the large quantity involved are aggravating factors on sentencing.
[18] Further, the combination of the heroin with a firearm is particularly aggravating.
[19] Mr. Fermah was trafficking in heroin at a level well above the street level – a mid-level dealer. Why he was doing so remains a mystery to me, and apparently to his family as well. He does not appear to have criminal antecedents. He has had the benefit of an excellent, loving, and supportive family and a good education. He had a promising career and work he appeared to enjoy. He was not himself a drug addict. I am driven to conclude that he engaged in this criminal activity motivated purely by greed, without regard to the harmful effects of the substance he was peddling, to society at large and to the vulnerable end-users of his stock-in-trade.
[20] Mr. Fermah’s prior good character and excellent prospects for rehabilitation are mitigating. He has no prior record and there is every reason to believe he will not return to a life of crime. Since his arrest, he appears to have been a model prisoner, seen to be polite, cooperative and respectful according to defence material filed. He has taken advantage of programming available in the institution and completed a variety of courses while in custody.
[21] At the conclusion of the first part of the sentencing hearing on April 8, 2019, I gave Mr. Fermah an opportunity to speak on his own behalf. He stated that he took full responsibility for the charges and assured the court that he would not repeat this kind of behaviour. He said he realized that people could have been hurt as a result of his crimes and that he had hurt his family by his conduct. He promised to be a law-abiding person in the future, as he had been for most of his life. Mr. Fermah referred to his medical needs arising from the car accident and the health problems he had suffered while in custody, including intestinal problems, multiple seizures and what he believed to be a growth in his brain. He expressed a desire to return to New Jersey and to live with his parents until his medical issues were under control and to then return to work. He apologized to his family for the trouble he had caused and to the courts for having imposed on them. I found this to be a genuine expression of remorse and treat it as mitigating.
E. PARITY IN SENTENCING
[22] As a general principle, it is important to have as much consistency in sentencing as possible. Therefore, similar sentences should be imposed on similar offenders who commit similar crimes in similar circumstances. Of course, that is the ideal. In actual practice it is difficult to achieve as no two offenders are ever exactly the same and the circumstances of their crimes can vary widely. Nevertheless, it is useful to look at case law to see what types of sentences have been imposed in cases similar to the one before me.
[23] I am not able to find much similarity between the cases cited by the defence and the situation of Mr. Fermah. I would distinguish those cases as follows:
(a) R. v. Kelsy [^3]: The offender was a 24-year-old single mother with no criminal record. She was sentenced to two years less a day for possession of a firearm with ammunition and 34.42 grams of heroin for the purposes of trafficking, all of which was in her backpack. Ms. Kelsy’s boyfriend was a drug dealer and she was aware of that. Her conviction was based on a one-time event in which she was moving the gun and the drugs to assist her boyfriend. She had been on bail for five years and had the benefit of many mitigating factors. The sentencing judge referred to her personal circumstances as “very unique, almost idiosyncratic.” There is no similarity between that case and this one.
(b) R. v. Delchev [^4]: The Court of Appeal upheld a 42-month sentence imposed by Low J. on a 36-year-old offender for 16 offences, the most significant being possession of numerous weapons and possession of 10.5 grams of cocaine for the purposes of trafficking. The accused claimed he had become addicted to cocaine following his mother’s death and his subsequent breakup with his girlfriend. The trial judge found the offender was a drug user, but not an addict. He was a fairly low-level drug dealer. Since the time of the offence, the offender had stopped using drugs, expressed remorse, and had a good potential for rehabilitation. The Court of Appeal held that a higher sentence could have been imposed but that there had been no error in principle by the trial judge and her sentence was therefore entitled to deference. There are significant difference between this case and Mr. Fermah’s circumstances. The drug involved was cocaine and the defendant was at a much lower level in the trafficking hierarchy. I find this case to be at the extreme low end of the scale for crimes of this nature.
(c) R. v. Uzondu [^5]: The accused was convicted of possession of 486 grams of heroin for the purposes of trafficking. The trial judge accepted that the appropriate range of sentence for that amount of heroin was 6 to 12 years. However, the trial judge sentenced the offender to only 4 years, essentially because she was merely a courier, receiving delivery of a package sent by mail and arranging for it to be picked up by someone else. She was paid $700 for her role. This bears no similarity to Mr. Fermah’s situation. He was far beyond being a mere courier. The presence of scales and baggies show him to be a drug dealer. He also had a firearm and ammunition, which is aggravating.
[24] The cases relied upon by the Crown are closer to the mark, in my view.
(a) R. v. Sadikov [^6]: The accused was sentenced to 3 ½ years for possession of a firearm, consecutively with 4 years for possession of drugs for the purposes of trafficking, including 3 kg of MDMA and 1 kg of ketamine, with an estimated value of $675,000. The trial judge then reduced the overall sentence to 7 years, taking into account the principle of totality. On appeal, the main issue was whether it was an error in principle to impose these sentences consecutively. The Court of Appeal found no such error, stating that there are two clearly different legally protected interests (drug trafficking and the danger of illegal firearms) and whether to make the sentences consecutive or concurrent was a matter of discretion for the sentencing judge. The Court of Appeal noted that the sentence for the drugs was at the low end of the range given the quantity of drugs, but that after the trial judge applied the totality principle, 7 years was not an unfit sentence.
(b) R. v. Dhillon [^7]: The Court of Appeal upheld a sentence of 7 years for a 55-year-old first offender for possession of 100 kg of heroin for the purposes of trafficking, valued at $12,000 to $15,000. The Court of Appeal found this to be at the high end of the range, but not unfit. Mr. Fermah had close to that amount of heroin, but he also had a firearm and ammunition.
(c) R. v. D’Souza [^8]: The offender was a 58-year-old first offender convicted of possession of 34.2 grams of heroin for the purposes of trafficking. If sold at the street level, this would have a value of $8,208. The offender was found to be a low-level dealer and was sentenced to 4 years. Mr. Fermah was a mid-level dealer and he had three times as much heroin, as well as an illegal firearm.
(d) R. v. Anang [^9]: The trial judge sentenced the offender to 4 years for possession of 75 grams of heroin for the purposes of trafficking. The heroin was valued at approximately $18,000.
(e) R. v. Mansingh [^10]: The trial judge sentenced a youthful first offender to 43 months for possession of a loaded handgun. It was an aggravating factor that he discarded the gun in a public place while running from the police. The trial judge found he had the gun as part of a low-level commercial drug dealing enterprise involving marijuana. The Court of Appeal found the sentence to be fit, citing the Supreme Court of Canada’s decision in R. v. Nur [^11]. Mr. Fermah was older than this offender and was engaged in far more serious drug dealing. On the other hand, he did not have the aggravating factor of leaving the firearm in a place where innocent people, including children, could have come across it.
(f) R. v. Pimentel [^12]: Hill J. sentenced the offender to 5 years for possession of 5.1 grams of heroin for the purpose of trafficking. He had a lengthy criminal record, although mostly as a young offender, which included convictions for drug offences including cocaine. Hill J. did an extensive review of the authorities, showing a range of 3 to 7 years for possession of far smaller amounts of heroin than was involved in this case (mostly less than 10 grams).
F. ANALYSIS: APPROPRIATE SENTENCE IN THIS CASE
[25] Based on my review of the authorities and applying the established principles of sentencing, I conclude that Mr. Fermah’s possession of a handgun together with ammunition, given that the possession is in connection with criminal activity, would attract a sentence of between 3 and 5 years. I settle on 4 years as the appropriate sentence for his possession of the firearm because he has no prior criminal record and good prospects of rehabilitation. He does not belong at the very bottom of the range as he was a relatively mature offender and was in possession of the firearm as a tool of the trade in heroin trafficking.
[26] The applicable range of sentence for possession of the heroin would appear to be 4 to 7 years. I find 6 years to be the appropriate sentence for the heroin possession given the large amount of heroin and the dangerous nature of that drug. I note in particular the words of the Ontario Court of Appeal in R. v. Sidhu [^13], as follows:
Time and again, this Court and the Supreme Court of Canada have made it clear that heroin is the most pernicious of the hard drugs – it is the most addictive, the most destructive and the most dangerous. Heroin trafficking has been described as a “despicable” crime and one that “tears at the very fabric of our society.”
[27] Possession of heroin for the purposes of trafficking and possession of an illegal firearm are two separate offences, even though in this situation they are committed in the same time and place. One approach is to impose consecutive sentences on the principle that these are separate offences that involve separate dangers to society and should be separately sentenced. That was the approach taken by Thorburn J. in Sadikov, which was upheld by the Ontario Court of Appeal. [^14]
[28] The alternative approach is to recognize that the gun and the drugs were found together and are related to each other and to therefore impose a global sentence for the whole of the circumstances.
[29] If I were to take the consecutive sentence approach, the combined sentence would be 10 years, which in my view would be unduly harsh and potentially crushing, particularly for a first offender with realistic prospects of rehabilitation. The total sentence would need to be reduced, based on the totality principle. Taking totality into account is a similar exercise to approaching the sentencing on a global basis.
[30] The most significant mitigating circumstances here are the absence of a criminal record, the genuine remorse expressed by Mr. Fermah, and the prospects of rehabilitation. I am also mindful of the medical issues that have arisen for Mr. Fermah that make serving a long sentence more difficult for him than it would be for somebody without those disabilities.
[31] Having considered all of these factors, but without reduction because of the impact of Mr. Fermah’s disabilities, I concluded that a global sentence of 7 years was appropriate. Given my conclusion below as to the credit that should be given for time served, I have not addressed how much of a reduction would be appropriate to reflect the impact of the disabilities. That issue is now moot.
[32] I therefore impose the following sentences:
Count 3: 7 years (possession of the heroin in the lockbox for the purposes of trafficking) Count 1: 4 years concurrent (possession of the firearm and ammunition) Count 4: 1 year concurrent (possession of the heroin in the police car)
[33] Count 2 is stayed as duplicative of Count 1, pursuant to R. v. Stinchcombe [^30].
G. CREDIT FOR TIME SERVED
Summers Credit [^15]
[34] As of the date of sentencing on June 6, 2019, Mr. Fermah had been in custody for 2 ½ years (30 months). As a matter of course, he is entitled to have that time credited at a rate of 1.5 to 1, which is a total credit of 45 months. Applied against a total sentence of 7 years (84 months), that would leave 39 months left to serve.
Enhanced Credit for Lockdowns
[35] The Ontario Court of Appeal recognized in R. v. Duncan [^16] that a trial judge retains a discretion to provide an enhanced credit beyond the Summers 1.5 to 1 ratio where the defence establishes particularly harsh conditions during the period of pretrial custody that have had an impact on the accused. There is no particular formula for how to calculate such a credit. This is a matter within the discretion of the individual judge.
[36] A typical situation in which an enhanced credit can be given is where a considerable portion of the pretrial custody has been spent under full or partial lockdown conditions. In R. v. Ward-Jackson [^17], the defence sought an enhanced credit for an offender who had been under full or partial lockdown for a total of 488 days (of 1248) while in pre-trial custody at the Toronto South. This means that there were lockdowns for approximately 40 % of the time he was in custody. Kelly J. allowed an additional 16 months (480 days) as an enhanced credit for the lockdowns, which is slightly less than one day of credit for each lockdown day (whether full or partial). In her reasons, Kelly J. referred to and relied upon an unreported decision of McMahon J. in R. v. Dibben, also dealing with the Toronto South, in which he gave an enhanced credit of 14 months (420 days) for 383 days of lockdowns. This is slightly over one day of credit for each lockdown day. Similarly, in R. v. Jama [^18] Goldstein J. allowed an additional 120 days of credit for 175 days of pre-trial custody during which there were full or partial lockdowns. Again, this is somewhat less than one day of credit for each day under lockdown. That case also involved time served at the Toronto South. The total days of pre-trial custody were 511 days, which means that approximately 34% of the accused’s time in custody there was served in lockdown conditions.
[37] Defence counsel also relied upon R. v. Reeve, in which Skarica J. allowed an enhanced credit of 13 months for 627 days during which the accused was housed with three men to a cell and 506 days of lockdowns. However, Skarica J. noted that because the accused worked as a server/cleaner within the institution he was permitted to be out of his cell for 50% of the time the institution was under lockdown. The trial judge did not provide any breakdown as between the amount of credit attributed to the triple-bunking as opposed to the lockdowns. The institution involved was Maplehurst.
[38] Mr. Fermah was at the Toronto South for some of the same time periods as the accused in Dibben, Ward-Jackson, and Jama. He kept track of the days when the institution was under lockdown. On his pocket calendar, he put a circle around the days when his unit was under complete lockdown for the entire day. When a lockdown occurred for a portion of the day, he put a vertical slash through the date, but did not keep track of the number of hours covered by each partial lockdown. According to his records, there were 205 days of total lockdown from January 6, 2017 to April 5, 2019 and 214 days of partial lockdown. In his oral testimony on June 6, 2019 before me, he updated those numbers to the current date such that there were 222 full lockdowns and 225 partial lockdowns. His total time in custody from January 6, 2017 to June 6, 2019 covers 882 days. By his accounting, he would have been under lockdown (full or partial) for 51% of his time in custody. According to the records from Toronto South, from January 17, 2017 to March 27, 2019, there were a total of 204 lockdowns (full and partial lockdowns combined). Although those figures cover a shorter time span, the percentage of time under lockdown is 26%.
[39] Interestingly, other cases involving Toronto South also had discrepancies in the calculation of lockdown days. In Ward-Jackson, Kelly J. accepted the offender’s number of 488 lockdown days, although the Crown had submitted that the correct number was closer to 109 days. [^20] R. v. Bedward [^21] also involved enhanced credit for lockdown days at Toronto South, although for a period of time just before Mr. Fermah arrived there. In that case, the offender had kept track of the lockdown days in a diary and testified that he had been in lockdown in excess of 225 days, out of a total time in custody of 520 days (or 43% of the time in custody). The records at the institution indicated 128 lockdown days. However, B. O’Marra J. commented on the “lack of precision” in the evidence of the sergeant from Toronto South who testified at the sentencing hearing. That witness acknowledged that the record-keeping of lockdown days was not always consistent among the staff.
[40] At the hearing before me, the Crown filed an affidavit sworn by Sgt. Travis Williamson, who has been a correctional officer since 2007 and now works in the security department at Toronto South. He confirmed that the internal records of lockdowns affecting Mr. Fermah’s unit show a total of 204 lockdowns from January 17, 2017 to March 27, 2019. In cross-examination before me, Sgt. Williamson conceded that the records filed do not reflect the full number of lockdowns. For example, he said that the institution is locked down when they do searches. As a matter of policy, the entire institution is searched at least once every month. However, it is apparent from reviewing the institution’s records that many of these were not recorded. Sgt. Williamson also testified that when there is a shorter lockdown for something other than “operational” reasons, (e.g. an isolated search or a reported security incident) this would not be characterized as a lockdown in the records. Mr. Fermah would have no way of knowing the cause of any particular lockdown, unless it was reported to him by correctional officers at the time. He testified that sometimes they were told the reason for the lockdown and other times they were not. Thus, if there was a brief “operational” lockdown for reasons not provided to Mr. Fermah, he would have put a line through that day as involving a partial lockdown. I have no way of knowing how long those partial lockdowns lasted. However, I am confident that they did occur. It is also difficult to say how many there were. I accept Mr. Fermah’s evidence about the manner in which he kept track of the lockdowns and I do not for a moment believe that he fabricated the entries in his calendar. However, he was somewhat prone to exaggeration with respect to some of these events and what he perceived to be a partial lockdown might have been only a short deprivation of privileges with little impact. If Mr. Fermah’s numbers are accurate, he would have been under lockdown for 51% of his time in custody. Other cases involving inmates at Toronto South show percentages of 34% (Jama), 40% (Ward-Jackson) and 43% (Bedward).
[41] What is apparent to me is that the institutional records are not completely accurate. Certainly, the 205 lockdowns the institution acknowledges between January 17, 2017 and March 27, 2019 did occur. The vast majority of those lockdowns were because of “staff shortages.” Sgt. Williamson acknowledged that none of the lockdowns were caused by Mr. Fermah. Although I am certain that the 205-day figure provided by the institution is inaccurate and that the real figure is higher, I am not fully certain as to Mr. Fermah’s numbers (which are double that), particularly given the ambiguity of what period of time was covered by some of the partial lockdowns. Given Mr. Fermah’s testimony and the percentages shown in other similar cases, I expect that the percentage is closer to 40% than 50%. Calculated at 40% of the total days of 882 days, the total for full and partial lockdown days would be 353 days, or close to one year of his 2 ½ years in custody.
[42] Based on Mr. Fermah’s testimony, I am satisfied that these lockdowns have had a substantial negative impact on him. He is a relatively small man, with a mild and easy-going personality. He is by no means a hardened criminal. He is also a vulnerable individual, suffering from anxiety, depression, and a seizure disorder. He relied on his family in the United States for emotional support. During lockdown periods, he was not permitted to make phone calls, nor could he see visitors. He was confined for long hours to his cell, without access to showers or recreational activities. Sgt. Williamson testified that there was a shower program during lockdowns in which small groups of inmates were taken to shower and to make phone calls for short periods of time, but he candidly acknowledged that this was not always provided. The records demonstrate that Mr. Fermah participated in self-improvement programs when they were available. During periods of lockdown he was unable to do so. Mr. Fermah’s state of anxiety and his depression worsened. I accept his evidence that he was acutely affected by the lockdowns.
Enhanced Credit: Time Spent in the Behaviour Management Unit
[43] Mr. Fermah stated in his affidavit that he was confined to the Behaviour Management Unit (the “BMU”) on two occasions for incidents which did not involve any misconduct by him. He said that on each occasion he was held in the BMU for 15 days. He testified that time spent in the BMU is similar to segregation. This evidence was not challenged in cross-examination or by other evidence. I accept that this is the case and that it had a serious impact on Mr. Fermah’s psychological well-being. The Toronto South records do not confirm the length of the periods of time Mr. Fermah spent in the BMU, but neither has his testimony been undermined by credible or objective evidence.
[44] On one of these occasions, an inmate in Mr. Fermah’s unit assaulted a guard and the entire unit was placed in the BMU. There is confirmation in the record of such an assault, but no information as to who was transferred to the BMU and how long they were there. What is clear is that Mr. Fermah was never charged in respect of this incident.
[45] The other incident involved Mr. Fermah being assaulted by his cellmate. Mr. Fermah testified that he was alone in the cell when his cellmate returned from court in a foul mood. He said his cellmate suddenly and without provocation attacked him and was hitting him in the head. Given his seizure disorder and vulnerability to head injury, Mr. Fermah merely covered his head with his arms as best he could until guards intervened and pulled his cellmate off him. For reasons that are entirely unexplained, both Mr. Fermah and his cellmate were transferred to the BMU and accused of misconduct. Sgt. Williamson attached to his affidavit the Misconduct Report with respect to this incident. That record shows that the incident occurred on the night of Sept 21, 2017 and that Mr. Fermah denied any wrongdoing from the outset. However, it would appear from the Toronto South Misconduct Report that the institution did no further investigation and eventually dropped the accusation against Mr. Fermah because the time for investigation (10 days) and adjudication had expired. Sgt. Williamson did not produce the Accident/Injury Report with respect to that incident, but the defence did. The Accident/Injury Report states that Mr. Fermah “was seen being punched by [his cellmate].” The Accident/Injury Report shows that Mr. Fermah was examined by a nurse, that there was “no health and safety concern,” and that Mr. Fermah was “expected to make a full recovery” with “no long term effects.” However, the Toronto South medical chart (also produced by the defence) included a nursing note that Mr. Fermah had a bump on the left side of his ear and bruising at the back of his head.
[46] While I am unable to verify how long Mr. Fermah was in the BMU on these two occasions, there does not appear to have been any reason for him to have been taken there at all. These two incidents, taken alone, would likely not influence me to provide any enhanced credit. However, when looked at in the context of Mr. Fermah’s overall experience at Toronto South, they become more relevant.
Enhanced Credit: Dietary Concerns
[47] Mr. Fermah has struggled with gastrointestinal problems while at Toronto South, including nausea and persistent vomiting after eating. In his affidavit, he stated that on March 13, 2018, a nurse found that he had a bacteria in his system that was causing these problems, even though he had been told for two months there was nothing that could be done and that he had not been given an examination.
[48] The Crown filed the affidavit of Susan Robinson, who is a registered nurse and the Health Care Manager at the Toronto South since May 2015. In her affidavit she stated that a Nurse Practitioner “suspected” on May 5, 2018 that Mr. Fermah “may have had h.pylori, a GI bacteria which causes nausea and vomiting, but got a second opinion from an MD (May 7, 2018).” She further indicated that: a radiology test was booked for July 2018 “but Mr. Fermah ate when told he should not so it was cancelled;” that tests done in August 2018 showed a small hiatus hernia and reflux; and that a gastroscopy done in March 2019 showed normal results.
[49] The source of Mr. Fermah’s intestinal difficulties remains unclear. Contrary to Ms. Robinson’s affidavit, the record demonstrates that the Nurse Practitioner did not merely “suspect” h.pylori bacteria, but that a blood test was done and he tested positive for the presence of that bacteria. This result was noted by the nurse at the Toronto South on March 12, 2018. Antibiotics were prescribed on March 13, 2018. An upper GI series and fluoroscopy were performed at St. Joseph’s Health Centre on August 7, 2018, which revealed a small hiatus hernia and a small amount of gastroesophageal reflux. A subsequent gastroscopy on October 31, 2018 was reported as normal.
[50] As for the radiology test, there is no evidence that Mr. Fermah was instructed to fast before being taken for the tests and that those tests had to be cancelled because he failed to follow those instructions. The only thing that is documented is that the tests were cancelled because he had eaten. However, Sgt. Williamson testified that it is normal procedure not to tell an inmate the night before that he is scheduled to go to the hospital for tests the next day. Rather, for security reasons, the corrections officers will simply arrive at his cell and take him to the hospital at the appropriate time without prior warning. There would be no reason for Mr. Fermah to sabotage the test. The record demonstrates that he was anxious to find the cause and a treatment for his discomfort.
[51] What is demonstrated by the record is that Mr. Fermah was prescribed medication (a proton pump inhibitor) in an attempt to control his symptoms. Unfortunately, there were many dates when this was not administered as required (see the section below about medications).
[52] The institution also failed to follow through with a doctor’s prescription that Mr. Fermah be given Boost as a dietary supplement during this period of time. This is especially troubling. It is clear the doctor’s order was made. Ms. Robinson testified that once the order is sent to the kitchen it is no longer the responsibility of the medical staff. I disagree. The evidence establishes that Mr. Fermah complained about the institution’s failure to provide Boost over a period of months. This was followed up by correspondence from his lawyer’s office. However, Sgt. Williamson denied any knowledge of the problem with Mr. Fermah getting this medically prescribed dietary supplement until it was brought to his attention at the hearing before me.
[53] While I accept that Mr. Fermah was eventually referred for appropriate tests and prescribed appropriate medication for his gastrointestinal problems, the failure to do something as simple as delivering a dietary supplement as prescribed is inexcusable.
Enhanced Credit: Failure to Administer Medications as Prescribed and Seizure Management
[54] Mr. Fermah asserted in his affidavit that his medications were often not delivered to him at all, or were delivered late. Sometime, he said, he would receive two doses at once because the earlier dose had been missed.
[55] In response to this allegation, the Crown filed the affidavit of Susan Robinson, to which was attached what was said to be the Medical Administration Records for Mr. Fermah’s time in custody at the Toronto South. For some of the months Mr. Fermah was there, the records are missing completely. With respect to other months, some pages are missing. Although Ms. Robinson returned to the institution in between the first and second days of her testimony and brought back to court the entire medical file, the missing pages of the Medical Administration Record were still not located. I do not attach anything nefarious to these missing records, but do note that the record-keeping was far from the “gold standard” referred to by Ms. Robinson in her testimony.
[56] From the records that were produced, it is clear that there were many occasions on which Mr. Fermah was not given medication that had been prescribed for him. Ms. Robinson testified that the Medical Administration Record is prepared at the pharmacy and kept with the medication cart. The doses for each medication are measured out at the pharmacy and placed on the cart. A nurse then takes the cart to the units and administers each medication to the inmate for which it has been prescribed, initialing on the record the time that she has done so. Ms. Robinson speculated that the absence of an initial at a time when medication was supposed to have been administered could mean that the nurse simply failed to chart that she had given it, or that the inmate had refused to take it and the nurse had failed to chart “REF” as she is required by protocol to do. I reject that explanation. There is a reason that medications and the records of medications delivered are closely controlled at the institution. If the records indicated that the medication was not given, then the medications would have been returned to the pharmacy with the cart. If the medication is shown as not given, and no medication is returned, I would expect some follow-up as those doses of medication would be unaccounted for. On some dates, no medications at all were shown to have been administered. It is unlikely that this was a clerical error by the nurse. Failing to initial one medication out of five or six given is one thing; failing to make any record at all of a number of medications given at one time, is another matter altogether. There is also no documentation whatsoever that Mr. Fermah was refusing any of his medication. Indeed, it is illogical that he would have done so as he was keenly aware of the dangers of not taking them as prescribed, particularly with respect to the medications that controlled his seizures. Where there is no initial by a nurse that medication was given, I take it that the medication was not in fact given. One or two missing entries might be explainable as simple errors. However, given Mr. Fermah’s testimony and the not inconsiderable gaps in the medication records, I find that his medication was missed far more times than I consider to be acceptable.
[57] Mr. Fermah had been living with his seizure disorder for a decade before he was arrested and was aware of the consequences for him of missed or irregular dosing. The effects on Mr. Fermah of these irregularities are difficult to establish. Certainly, his failure to get his medication consistently and on time was a source of considerable anxiety to him. Needless to say, this was exacerbated by the fact that often it was his anti-anxiety medication that was missed. The record also demonstrates that Mr. Fermah had a number of seizures while in the institution. On occasion those seizures were on days when his anti-seizure medication (Dilantin) had been missed. It is not possible on the evidence before me to attribute cause and effect to this; it could be mere coincidence. However, I have no doubt that Mr. Fermah experienced it that way, and it is perfectly understandable that he would do so.
[58] Mr. Fermah also testified that the dosages and times of his Dilantin would frequently be changed without notice. The chart does demonstrate that there were frequent changes to the amount of Dilantin given, the form in which it was administered, and the time at which it was to be given. I accept Ms. Robinson’s evidence that the institution was regularly testing Mr. Fermah’s blood levels and adjusting his Dilantin dose when the blood tests showed his Dilantin levels to be too high. The medical staff believed that Mr. Fermah was hoarding his Dilantin and taking it before his bloodwork was to be done. The proof offered by Ms. Robinson for this theory was that when they switched to administering the Dilantin in a liquid form (so that it could not be hoarded), the levels evened out. This, also, could be nothing more than coincidence. Mr. Fermah denied that he ever hoarded his Dilantin, and I believe him. Ms. Robinson conceded that there could be other explanations for the high reading, e.g. that the blood tests were done too close in time to when Mr. Fermah had taken his Dilantin. Given the lack of regularity in the dosing schedule, this is at least a possible explanation, and indeed more probable than Mr. Fermah deliberately dosing himself prior to bloodwork in order to create a false high level. I can see no benefit to him in such a course of action. While I accept the evidence of Ms. Robinson that the changes in dosage and times for Mr. Fermah’s Dilantin were made for medical reasons, those were not always explained to Mr. Fermah. This made it even more difficult for him to keep track of when he should be receiving his Dilantin and increased his level of anxiety.
[59] There were times when medical staff rejected Mr. Fermah’s report that he had experienced a seizure, referring to what happened as a “pseudo-seizure.” I do not propose to get into whether all of the seizures Mr. Fermah reported were real seizures in the absence of proper medical evidence to explain why a “pseudo-seizure” was diagnosed and how this would be different from an actual seizure. It is unclear whether medical staff believed Mr. Fermah to have been faking these episodes. However, it is clear that Mr. Fermah did experience some actual seizures while in custody. On two occasions Mr. Fermah was taken to an outside hospital. Those seizures were clearly real, and were treated as such. One such seizure occurred in November 2017 while Mr. Fermah was in a cell at the courthouse at the time of his preliminary hearing. He was taken to hospital from the courthouse. I note that this was one of the days on which he was not given his morning dose of Dilantin. On another occasion, the seizure was witnessed by others at Toronto South and he sustained injuries to his arm and cuts inside his mouth when he lost consciousness and fell to the floor. On yet another occasion, he was in medical difficulty at the courthouse and staff realized that his medication had not been given to him before leaving the institution. The medication was then supposedly obtained from Toronto South, but due to some mix-up Mr. Fermah was given the wrong medication and had a bad reaction.
[60] Mr. Fermah reported one incident at Toronto South when he was having symptoms that often, in his experience, precede a seizure. He testified that he alerted a correctional officer and asked him to call a nurse to the unit to see him. He said that the officer told him they would only call a nurse if he actually had a seizure. In referring to this incident in his affidavit, Mr. Fermah stated:
Waiting until I had a seizure could result in my death. I was shocked at how unresponsive staff was to the risk to my health. The difference between the nurse coming to my cell when I am showing symptoms of a seizure compared to the nurse attending when I am already having a seizure could mean my life. This experience left me terrified of going to sleep and of having a seizure and needing medical attention. This has taken its toll on me and left me emotionally drained.
[61] Quite apart from the very real danger to Mr. Fermah’s physical well-being as a result of how his seizure disorder was handled, the consequences for his mental health were equally dire, if not worse. I accept Mr. Fermah’s evidence that this incident happened and I accept the emotional angst he suffered as a result.
[62] I do, however, acknowledge that the medical unit at Toronto South did attempt to monitor Mr. Fermah’s Dilantin levels and to adjust his medication accordingly. I also accept that they sent him for appropriate consultations and tests to outside hospitals and specialists. One area in which I reject Mr. Fermah’s evidence is with respect to his statement that he was diagnosed with what could be a cancerous tumour in his brain and that he is still waiting for the results of his MRI on this issue. Based on the evidence of Ms. Robinson and the medical records, I find that there was no such diagnosis made. The MRIs that were done reported no mass in the brain, but did report a possible mesial temporal sclerosis on the right side of the brain. Ms. Robinson explained that this refers to a hardening of the tissue in that area, but is not a growth. The charts indicate that this was explained to Mr. Fermah on more than one occasion. It is possible Mr. Fermah misunderstood the explanations he was given. However, I do not accept his contention that he has a tumour in his brain that the medical staff have failed to address appropriately.
Enhanced Credit: Upper Bunk
[63] Mr. Fermah testified that he was repeatedly assigned to sleep in the top bunk of his cell, although he complained to correctional staff that this was not safe because of his seizure disorder. It being unsafe to sleep on the top bunk, Mr. Fermah slept on the floor when assigned to that bunk.
[64] Ms. Robinson testified that Mr. Fermah should never be assigned to a top bunk due to the danger that he could have a seizure during his sleep and roll off the bunk. However, she denied that this would be the responsibility of the medical unit. She said she recalled that the doctor had written an order that Mr. Fermah be placed in the lower bunk and said this was a housing issue and the sergeant should have corrected it.
[65] When Mr. Fermah’s complaints to the authorities about being assigned to the top bunk were unsuccessful, he sought the assistance of his lawyer. His legal counsel faxed a letter to the Toronto South on May 28, 2018 pointing out the dangers to Mr. Fermah from being assigned to the top bunk and requesting that he be assigned to the bottom bunk immediately. Ms. Robinson denied ever seeing that letter. She said it would have gone to the operations unit rather than the medical care unit. Sgt. Williamson testified that he was unaware of any medical direction that Mr. Fermah be assigned to a lower bunk. I am stymied by that evidence, because Ms. Robinson said she saw a direction to this effect and because I would have thought it obvious to any thinking person that somebody with a seizure disorder should not be placed in the top bunk. The correctional staff were well aware, not only that Mr. Fermah had a seizure disorder and could have seizures, they knew that he did have seizures while at the institution. They should have been aware of the medical direction, but beyond that they should have taken measures to put Mr. Fermah in a lower bunk as a simple matter of common sense. I also reject Sgt. Williamson’s suggestion that Mr. Fermah never complained about being assigned to the top bunk, that assertion being based on nothing more than the fact that nobody documented such a complaint. Since the correctional staff did nothing to ensure Mr. Fermah was always in the bottom bunk, it is scarcely surprising that they did not document complaints about his being assigned to the top bunk. I believe Mr. Fermah’s testimony that his own complaints fell on deaf ears, which is why his lawyer had to send an official letter of complaint. Unfortunately, and shockingly, that letter was ignored as well.
[66] The Toronto South records indicate that Mr. Fermah was assigned to the top bunk for 374 of the nights he was in custody. I find this to be unconscionable.
Total Enhanced Credit
[67] I do not propose to go through each and every basis for allowing an enhanced credit under the principles established in Duncan and allocate the number of days based on each issue. It is the cumulative effect that must be taken into account and which is most concerning.
[68] Mr. Fermah was housed in completely unacceptable conditions. There were frequent lockdowns resulting in an undue deprivation of his liberty, privacy and well-being. Those days of lockdown amounted to something approaching 40% of his time in custody, or close to a year. That kind of treatment is not in keeping with the humane system of corrections to which we aspire. It is not to be tolerated or simply treated as what we now expect from Toronto South.
[69] Further for 374 days (over a year), he was assigned to the top bunk in flagrant disregard for his physical safety and well-being. This occurred persistently, even after a series of seizures he experienced in August, September and November 2017. I am hard-pressed to comprehend how this could have happened. I reject the suggestion that Mr. Fermah bears any of the responsibility for having failed to complain. He did complain, to no avail. His lawyer also complained, to no avail. He did what was sensible, he slept on the concrete floor. I further reject as offensive the suggestion by the Crown that Mr. Fermah could have negotiated with his cellmate to always have the lower bunk for himself. Mr. Fermah had his liberty taken away from him pending his trial. The state bears the responsibility of treating him humanely and with dignity. There is no onus on him to negotiate with fellow inmates for his own safety. His very life was put in jeopardy by the Toronto South’s staff failure to ensure he was safely accommodated in the institution.
[70] These conditions alone would have been highly stressful for anybody who had to endure them. However, on top of these issues, Mr. Fermah had ongoing gastrointestinal issues that left him experiencing frequent nausea and vomiting after eating. The nutritional supplement that was ordered for him simply was not provided for months, notwithstanding his complaints. Mr. Fermah also had a pre-existing anxiety disorder that was greatly exacerbated, not just by his criminal charges and the fact that he was in custody, but by the extremely harsh conditions visited upon him while in custody. His stress level rose. He became more and more depressed. He had trouble sleeping. Although various drugs were prescribed for these conditions, they were not always administered on time, or at all on a given day. Even more concerning was the failure to provide his Dilantin medication in a timely manner as prescribed. All of this, understandably, increased his emotional trauma.
[71] In my view, the cumulative effect of all of these conditions is such that Mr. Fermah should not be required to serve any more time. In the past, judges have seen fit to give 3:1 credit for time served in unacceptable jail conditions. In R. v. Smith [^22] (a firearms case) and R. v. Permesar [^23] (a break and enter), Schneider J. commented on the “chronically sub-standard” conditions at the Toronto Jail, including overcrowding and frequent lockdowns, and allowed credit on a 3:1 basis “as a starting point”. In both cases, the sentence imposed was satisfied by the presentence custody already served. [^24] The “inhumane” conditions at the Toronto Don Jail also resulted in 3:1 credit in my decision in R. v. Lowe [^25], Ormston J.’s decision in R. v. Poirier [^26], and MacDonnell J.’s decision in R. v. Miller [^27]. Terrible conditions in other jails have also resulted in 3:1 credit, or above. In R. v. Kravchov [^28], Kenkel J. gave credit of 24 months for seven months in presentence custody, resulting in no further time to serve on a sentence for a sophisticated car theft enterprise. The relevant factors in that case were severe overcrowding, health concerns from tuberculosis exposure, frequent lockdowns and violent incidents, a lack of recreational and rehabilitative programs, and a public service strike at the Metro West Detention Centre.
[72] The Court of Appeal has recognized that an institution’s failure to provide medical care can justify a reduction in a sentence. In R. v. Fuentes [^29], the Court reduced a sentence to time served where the appellant had not received appropriate medical attention, resulting in the appellant “serving sentence on extremely harsh conditions.”
[73] It is understandable that Mr. Fermah has no faith in the diagnoses and medical treatment he has received and that he wishes to return to his home with his parents so that he can be confident that his medical issues are being adequately addressed. He should now be free to do that. It is deeply troubling to me that Mr. Fermah’s dignity and well-being were neglected in the manner that occurred here. The Toronto South is our newest correctional system in the Toronto area and supposed to be “state of the art” in the humane treatment of its inmates. It has fallen horribly short with respect to Mr. Fermah.
H. CONCLUSION
[74] I sentence Mr. Fermah to a global sentence of 7 years to be allocated as follows:
- 7 years on Count 3 – possession of heroin for the purposes of trafficking
- 4 years concurrent on Count 1 – possession of firearm with ammunition
- 1 year concurrent on Count 4 – simple possession of Heroin
[75] Against that sentence, I credit Mr. Fermah with 7 years for the time he has served pending sentence. There is no time remaining to be served.
[76] Count 2 is stayed pursuant to Stinchcombe.
[77] There will be a DNA Order and a s. 109 Order for 10 years. A forfeiture Order shall also issue in respect of all items seized as a result of the search warrant and still remaining in the hands of the police.
MOLLOY J. Released: June 11, 2019
