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COURT FILE NO.: CR-18-4381 DATE: 20200417 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Robert Hearns Offender

Counsel: George Spartinos, for the Crown Jennifer A. Comand, for the Offender

HEARD: April 17, 2020 POMERANCE j.

Introduction

1The accused, Robert Hearns has pleaded guilty to an aggravated assault of Haifa Gebrail. The offence is a serious one. The accused struck the victim in the head with a bat, fracturing her skull and lacerating her scalp. She required surgery and remained unconscious for several weeks. At the time of the incident, the accused had consumed crystal methamphetamine to which he was then addicted.

2I must determine the sentence to be imposed. I have concluded that a sentence of time served plus probation is appropriate having regard to several factors, including the global COVID-19 pandemic and the increased risk of infection faced by inmates in Canadian jails.

Aggravating and Mitigating Factors

3There are several aggravating factors.

4This was a brutal and unprovoked attack on a vulnerable and defenceless victim. Ms. Gebrail, who was 31 years of age at the time of the attack, suffers from a cognitive disability. The attack has had a significant impact on her life, as evidenced by her own victim impact statement and that of her uncle. Ms. Gebrail spoke of her nightmares, her PTSD and her physical difficulties. She observed that “it will take my whole life to heal”. Her uncle, Sarkis Sleiman, observed that Ms. Gebrail’s friendly, optimistic and positive outlook has now been replaced with anger, fear and suspicion.

5The accused has a substantial criminal record. His adult record dates back to 1993 and continues almost unabated until 2018, save for a gap of five years between 2013 and 2018. Many of his convictions relate to property offences and failure to comply with court orders. Crimes of violence include four prior assault convictions and one conviction for uttering threats in 2018.

6At the time of the offence, the accused was bound by four separate probation orders.

7On the side of mitigation, the accused has entered a plea of guilt, obviating the need for the victim to testify about the event. He has also taken steps, while in pre-sentence custody, to avail himself of rehabilitation programs, including those relating to substance abuse. This is a critical challenge for the accused. His addiction to crystal methamphetamine was the catalyst for many of his past crimes, and was a factor in the commission of the offence before the court. Mr. Hearns has been sober since his incarceration began and has taken advantage of programming to help him deal with his addiction and other issues. He has pursued his education. It is hoped that he will continue these important steps toward rehabilitation.

The Joint Position

8The accused has served a substantial period of pre-sentence custody. He has served 667 real days in jail. With credit on a 1.5 to 1 basis, he has credit for a total of 1001 days (the equivalent of 33 months, 11 days).

9Counsel jointly propose a sentence of time served plus a term of probation. For the reasons to follow, I agree that this disposition is appropriate given the current social and medical context.

Judicial Notice of the Pandemic

10The gravity of the crime committed by the accused, and his long criminal record call for a substantial term of incarceration. In normal circumstances, the period of pre-sentence custody, while significant, might be seen by some to fall short of reflecting the seriousness of the offence and moral blameworthiness of the offender. However, we are not presently in normal circumstances. At the time of this hearing, the COVID-19 pandemic is sweeping the globe. This was a factor leading to the joint position taken by counsel.

11The risk of infection is, by necessity, higher in custodial institutions, where conditions – cramped quarters, shared sleeping and dining facilities, lack of hygiene products – make it difficult, if not impossible, to implement social distancing and other protective measures. This is not to say that the virus is rampant in jails, or that government officials are not trying to protect inmates. It is only to say that, as a matter of logic and common sense, the risk of contracting the virus is higher in an environment where people are forced to habitually congregate with one another.

12There is no suggestion that Mr. Hearns has any enhanced vulnerability flowing from age or underlying medical conditions. This does not negate the concern. The virus does not discriminate. There are reports of otherwise healthy individuals succumbing to severe illness and, in some cases, death. We must assume that no one is immune from the disease or the full range of potential consequences.

13As might be expected, many courts have been asked to consider the impact of the pandemic on bail applications and, to a lesser extent, sentencing. The following is a sampling of relevant excerpts from decisions:

R. v. J.S., 2020 ONSC 1710, at para. 19: I want to be clear that I am not suggesting any failure of the correctional authorities to take appropriate steps to attempt to keep inmates healthy, and to attempt to limit the spread of the virus. But I take notice of the fact, based on current events around the world, and in this province, that the risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able to self-isolate at home. The virus is clearly easily transmitted, absent strong social distancing or self-isolation, and it is clearly deadly to a significant number of people who it infects. The practical reality is that the ability to practice social distancing and self-isolation is limited, if not impossible, in an institution where inmates do not have single cells. I note that this factor concerns not only Mr. S.’s own health, but also the preservation of scarce hospital resources to treat patients. If more people are infected, those resources will be more strained.
R. v. Rajan, 2020 ONSC 2118, at paras. 55 and 56: COVID-19 has led the government to declare a state of emergency closing all businesses deemed non-essential. This is an unprecedented development. Gatherings of over five people are prohibited and funerals cannot proceed with more than ten people (see COVID-19.ontario.ca; https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/prevention-risks.html). Gathering in groups is public enemy #1. In all of this upheaval, to be in a jail as an inmate or a staff member must count as one of the most dangerous places imaginable. Physical distancing in any true sense is simply not possible. One does not have to have been in a jail to realize this. A jail is a government-enforced congregation of people. That is inherent in its very concept. When density and human contact are to be avoided, jail cannot be a safe place to be.
R. v. T.L., 2020 ONSC 1885, at para. 36: Detention prior to trial is difficult at the best of times, which is one of the reasons that, on sentencing, extra credit is provided for pre-trial custody. In the middle of a pandemic, serving that time in an institution is even more difficult. Transmission of the virus would be so much easier within an institution than in a private home. Protective measures being undertaken by the rest of the community (such as not congregating in groups, self-isolation, social distancing, maintaining a six-foot distance between people) are not as easily achieved in an institutional prison environment. Not only that, the more people that are housed in the institutions, the harder it will become to achieve any distancing to prevent infection or to contain or treat any infections that do occur. It is in the interests of society as a whole, as well as the inmate population, to release people who can be properly supervised outside the institutions. It better protects those who must be housed in the institutions (because there are no other reasonable options), those who work in the institutions (because they perform an essential service), and our whole community (because we can ill-afford to have breakouts of infection in institutions, requiring increased correctional staffing, increased medical staffing, and increased demand on other scarce resources).
R. v. Kandhai, 2020 ONSC 1611, at para. 7: Hardship in serving a jail sentence has always been a proper consideration in crafting an appropriate sentence. There is no specific evidence before me as to the effects on Mr. Kandhai, but there need not be. It is obvious at least up to a certain degree. The entire country is being told to avoid congregations of people. A jail is exactly that, a state mandated congregation of people, excluded from the rest of the population by reason of their crimes or alleged crimes. The situation, which has led to drastic measures in society at large, is bound to increase day to day hardship in prison and the general risk to the welfare of prison inmates. Given how much time he has served thus far in custody, it is in Mr. Kandhai’s interest and the public’s interest as well, that he be released at this point in time.
R. v. Kazman, 2020 ONCA 251, at paras. 17 and 18: Further, the applicant’s health conditions, which were well documented in the record before the court, as well as his age, place him within a vulnerable group that is more likely to suffer complications and require hospitalization if he contracts COVID-19. It is necessary for him to practice social distancing to lower the risk of contracting COVID-19. Being in jail will make it difficult, if not impossible, to practice such social distancing. As the public health authorities have emphasized at this time, the need for social distancing is not only a question of protecting a given individual but also the community at large. In the prison context, a COVID-19 outbreak may turn into wider community spread as prison staff return home. As we are repeatedly hearing during this pandemic, the wider the spread, the greater the pressure will be for scarce medical resources.

14Fortified by these authorities, I take judicial notice of the fact that: we are experiencing a worldwide pandemic; that control of the pandemic requires that individuals practice social distancing; that social distancing is very difficult to maintain in custodial settings; that inmates are consequently at a greater risk of infection; and that the risk of COVID-19 in prison settings translates into an increased risk for the community at large.

Impact of the Pandemic on Sentencing Principles

15How does all of this impact the fitness of sentence? Clearly, the pandemic does not do away with the well-established statutory and common law principles. However, the pandemic may impact on the application of those principles. It may soften the requirement of parity with precedent. The current circumstances are without precedent. Until recently, courts were not concerned with the potential spread of a deadly pathogen in custodial institutions.

16COVID-19 also affects our conception of the fitness of sentence. Fitness is similar to proportionality, but not co-extensive with it. Proportionality dictates that the sentence should be no more than is necessary to reflect the gravity of the crime and the moral blameworthiness of the offender. Fitness looks at a broader host of factors. A sentence may be fit even if it is not perfectly proportionate. Fitness looks, not only at the length of a sentence, but the conditions under which it is served. As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.

17Consideration of these circumstances might justify a departure from the usual range of sentence, such as that contemplated in R. v. Lacasse, 2015 SCC 64, para. 58:

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case. [Emphasis added.]

18The “specific circumstances of each case” would, in today’s environment, include the ramifications of the current health crisis.

19The Supreme Court has, in other cases, used extraneous circumstances to reduce a sentence. In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, it was held that state misconduct, falling short of a Charter violation, could operate in this fashion. This flowed from the operation of basic sentencing principles and did not require a constitutional analysis. In R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, the court found that misconduct by private citizens, who engaged the offender to a brutal act of vigilante violence, warranted a reduction in penalty. Characterizing the violence as a collateral consequence, the court clarified the scope of that doctrine, in three respects:

A collateral consequence includes “any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender”;
“The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances”; and
There is no requirement that collateral consequences emanate from state misconduct in order to be considered as a factor at sentencing. [1]

20In the current context, the issue is not state misconduct. No one is to blame for the pandemic. I accept that those in charge of jails are doing their best to control the spread of infection. Nor does the issue fall neatly into the category of collateral consequences. There is nothing collateral about the conditions of imprisonment – they are as direct a consequence as one can imagine. Yet, the impact of the pandemic is a matter that is extraneous to the pillars of proportionality – the gravity of the offence and the moral blameworthiness of the offender. The point to be taken is this: a sentence may be reduced where it is necessary to denounce state conduct, or where it is necessary to account for other punitive consequences, or where the sentence would have a more significant impact on an offender. In this case, the impact is not attributable to the characteristics of the offender, though in some cases there may be heightened vulnerability. The impact is attributable to the social conditions of the time, which are very different than those in the past. COVID-19 is not a mitigating factor in the classic sense. However, it adversely affects conditions of imprisonment, and increases health risks for those in jail. On that basis, it is an important part of the sentencing equation.

21I offer two caveats to this analysis.

22First, I am not suggesting that the offender receive more than the statutory credit for pre-sentence custody. The accused is entitled to credit on a 1.5 to 1 basis and that is what he will receive. I am not at liberty to assign credit beyond that prescribed in the Code. The question is not whether, looking backwards, the offender is entitled to more credit. The question is whether, looking forward, the pandemic warrants reduction of the sentence yet to be served. The question is whether the sentence already served, calculated with 1.5 to 1 credit, is a sufficient penalty. Given the pandemic, it may be that a sentence of shorter duration is not only tolerable, but appropriate, in the interests of personal and public safety.

23Second, I am not suggesting that the pandemic has generated a “get out of jail free” card. The consequences of a penalty – be they direct or collateral – cannot justify a sentence that is disproportionately lenient, or drastically outside of the sentencing range. It cannot turn an inappropriate sentence into an appropriate one or justify dispositions that would place the public at risk. See: R. v Day, 2020 NLPC 1319 A00658 at para. 1. It is ultimately a question of balance. As noted by A.J. Goodman J. in R. v. T.K., 2020 ONSC 1935, at para. 74:

In summary, even in these very challenging times, the court must fully recognize the potential harmful health impact on detained persons in the various institutions, while at the same exercising the balancing required to sustain its fundamental role in the administration of justice and protection of the public.

24That balance is best informed by our collective approach to these issues. During these challenging times, people are being asked to call upon their sense of community, decency and humanity. That humanity must obviously extend to all individuals, including those incarcerated due to criminal charges or convictions. There will be cases where release from custody is not a viable option. There must be consideration of the safety of the community and the need for a proportionate sentence. Where, however, a period of time served can address sentencing principles, even imperfectly, our sense of humanity tells us that release from prison is a fit and appropriate response.

Sentence in This Case

25On the basis of the above analysis, I find that the pre-sentence custody in this case is sufficient to warrant a time served disposition, followed by a term of three years probation. By ensuring a prolonged period of community supervision, the probation order reinforces the objective of protecting the public.

26Therefore, I sentence Mr. Hearns to one day in custody (following 667 days in pre-sentence custody, with 1.5 to 1 credit the equivalent of 1001 days in custody) to be followed by three years probation, the terms and conditions of which are:

REPORT WITHIN 24 HOURS to a probation officer as directed by telephone and, thereafter, be under the supervision of a probation officer or a person authorized by the probation officer to assist in the supervision of the offender, and report at such times and places, in person, or remotely through telephone or video, as that person may require;
For the first 12 months of probation, attend counselling as required, including remote attendance through telephone or videoconferencing, and provide proof of such attendance to the probation officer;
Do not associate or communicate directly or indirectly with Haifa Gebrail;
Do not attend within 100 metres of any known residence, place of education or place of employment of Haifa Gebrail; and
ABSTAIN FROM owning, possessing or carrying any weapon.

27There shall be a s. 109 order for a period life ten years.

28A DNA sample will be taken pursuant to s. 487.051 of the Criminal Code.

29Counts 2 and 3 are withdrawn at the request of the crown.

Renee M. Pomerance Electronic Signature Signed and Released by Pomerance J. Justice Released: April 17, 2020

Reasons for Sentence (Appended)

COURT FILE NO.: CR-18-4381 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Robert Hearns REASONS FOR SENTENCE Pomerance J. Released Orally: April 17, 2020

1The passage below sets the context for these statements.

47There is no rigid formula for taking collateral consequences into account. They may flow from the length of sentence, or from the conviction itself: see R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 11; R. v. Bunn (1997), 118 Man. R. (2d) 300 (C.A.), at para. 23; R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R. 183 (“Bunn (SCC)”), at para. 23; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289. In his text The Law of Sentencing (2001), Professor Allan Manson notes that they may also flow from the very act of committing the offence:

As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation. [Emphasis added; p. 136.]

I agree with Professor Manson’s observation, much as it constitutes an incremental extension of this Court’s characterization of collateral consequences in Pham. In my view, a collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender.

48Though collateral consequences are not necessarily “aggravating” or “mitigating” factors under s. 718.2 (a) of the Criminal Code — as they do not relate to the gravity of the offence or the level of responsibility of the offender — they nevertheless speak to the “personal circumstances of the offender” (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code. [2] The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer “like” the others, rendering a given sentence unfit. [3]

56I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case — collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender. There is, however, no requirement that collateral consequences emanate from state misconduct in order to be considered as a factor at sentencing: see Bunn (SCC), at para. 23; R. v. McDonald, 2016 NUCA 4, at paras. 41-44; R. v. Stanberry, 2015 QCCQ 1097, 18 C.R. (7th) 87, at paras. 18-20; R. v. Bell, 2013 MBQB 80, 290 Man. R. (2d) 79, at para. 87; Folino, at para. 29; R. v. Heatherington, 2005 ABCA 393, 380 A.R. 395, at paras. 5-6; R. v. Owens (2002), 161 O.A.C. 229, at paras. 10-11; R. v. Abouabdellah (1996), 109 C.C.C. (3d) 477 (Que. C.A.), at p. 480; R. v. Carroll (1995), 56 B.C.A.C. 138, at paras. 11-12.

Introduction

Aggravating and Mitigating Factors