Court File and Parties

Court File No.: CR-19-50000582-0000 Date: 2020-06-25 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Ginye Clarke

Counsel: V. Culp, for the Crown Phil Klumak, for Mr. Clarke

Heard: June 10, 23 and 24, 2020

Before: Kelly J.

Reasons for Sentence

[1] Mr. Ginye Clarke has pleaded guilty to the following offences:

Count	Offence	Criminal Code Section
1	Robbery with a firearm.	344(1)(a.1)
3	Breach of recognizance (curfew).	145(a)(a)
5	Possession of a loaded prohibited or restricted firearm without being the holder of an authorization, etc.	95(2)(a)
9	Possession of a prohibited device (an overcapacity magazine).	92(3)(a)
10	Possession of a firearm knowing the serial number has been altered, etc.	108(2)(a)
12	Possess a firearm while prohibited from doing so pursuant to an order made under s. 51 of the Youth Criminal Justice Act.	117.01(3)(a)

[2] Mr. Clarke now appears before me for sentencing. [1] Crown Counsel submits that the appropriate sentence is a global one of 6 to 8 years in custody. Counsel for Mr. Clarke submits that the appropriate sentence is a global one of 5 years.

[3] Both counsel agree that Mr. Clarke should receive credit for time served, pursuant to R. v. Summers. [2] They also agree that some credit should be given for the harsh conditions experienced by Mr. Clarke while incarcerated in the Toronto South Detention Centre (the “TSDC”) pursuant to R. v. Duncan. [3] They simply disagree on the amount. [4]

[4] Lastly, both counsel agree that the following ancillary orders should be imposed:

a. an order pursuant to s. 487.05 of the Criminal Code that Mr. Clarke provide a sample of a bodily substance for the purpose of forensic DNA analysis and storage in the national DNA database; b. a forfeiture order for the firearm; and c. an order pursuant to s. 109 of the Criminal Code for life.

[5] After having considered the facts of the case, Mr. Clarke’s background, and the relevant legal principles, I find that the appropriate sentence is 5 years (60 months), less time served (37 months) [5] for a further 23 months to be served in custody. The ancillary orders are imposed as well as an order of probation.

[6] What follows are my reasons.

The Facts

[7] The facts giving rise to the pleas and convictions formed part of an Agreed Statement of Facts (“ASF”). The ASF may be summarized as follows:

a. On October 4th, 2018, at the Ontario Court of Justice, Mr. Clarke entered into a Recognizance of Bail before a Justice of the Peace. He was put on several bail conditions, including but not limited to the following: * Remain in your residence daily between the hours of 10:00 p.m. and 6:00 a.m. * Do not possess a firearm, a cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all those things until dealt with according to law. b. On Sunday, December 16th, 2018, at approximately 3:30 a.m., Mr. Nicolas Balman attended a housing complex located at 3 Mount Olive Drive, Toronto. He parked his vehicle in the parking lot and waited for a female friend. c. Shortly after arriving, a male, with his face concealed, approached the driver’s side window of Mr. Balman’s vehicle. The victim rolled down the window to speak to the male. At this time, a second male appeared, opened the driver’s side door and grabbed the victim by his arm, pulling him from the vehicle. The males questioned the victim as to why he was at the complex. The males then threatened the victim, ordering the victim to remove his jewellery or they would blow his knee cap off. The victim observed one of the males armed with a handgun. The victim complied and removed his jewellery. He was held at gun point while the other males searched the victim’s vehicle. d. At this time, the defendant, Mr. Clarke, drove a black Dodge Journey (the “Journey”) into the parking lot and up to the victim’s vehicle. Two other males were also in the Journey. The group tried to pull the victim into the Journey while the victim resisted. The victim’s female friend then approached and interrupted the scene. The males jumped into the Journey and fled. The victim was able to obtain the licence plate of the Journey. e. About a half hour later, Mr. Clarke drove the Journey to a Petro Canada gas station at 3900 Jane Street, Toronto. Inside the vehicle there were at least three unidentified suspects, armed with handguns. A man purportedly named "Kevin Anderson" was pumping gas into his vehicle, while three females waited for him inside it. f. One of the unidentified suspects, holding a handgun in his right hand, exited the Journey and approached Mr. Anderson. A struggle ensued between them in the pump area, and at one point, they took their fight to the ground after the suspect pistol-whipped Mr. Anderson. A second suspect then exited the Journey and ran over to assist the first suspect. While both suspects were fighting Mr. Anderson, the females in his car opened the door and watched the incident. Then, a third suspect exited the Journey, also armed with a handgun. He pointed his handgun at Mr. Anderson. All of this was captured on surveillance video. g. During the altercation, the suspects removed two large gold necklaces Mr. Anderson had been wearing around his neck. The suspects returned to the Journey. Mr. Clarke was still behind the wheel and they drove off. h. The Petro Canada gas station attendant observed the incident. He phoned 911 at 4:17 a.m. Soon after, police officers attended, but not before Mr. Anderson and the females drove off. i. The Journey’s plate number was clearly visible on the Petro Canada surveillance video (the same plate number as identified by Mr. Balman during the first robbery). j. On December 16th, 2018, at 8:34 a.m., the Journey was located in Hamilton by police officers after a radio call was made about a suspicious vehicle. The Journey was unoccupied. It was sealed and towed to a TPS facility. A Criminal Code search warrant was obtained and executed. k. A single round of .40 calibre ammunition was found in the Journey during the execution of the search warrant, as well as other evidence in support of the offences. l. Mr. Clarke was identified as the getaway driver. This identification was made through video surveillance and fingerprints. m. Mr. Clarke's fingerprints were located on the outside driver's door handle of the Journey. Fast food packaging (from a restaurant called Panda Chef) was located in the driver's door. It also had his fingerprints on it. The fast food packaging also contained a receipt, dated December 15th. Video surveillance from Panda Chef on the evening prior to the robberies captured Mr. Clarke driving the Journey and making the food purchase. The video showed his face, matching an earlier mugshot. Further to that, the clothing seen on the restaurant surveillance video (a bright red hoodie) matched the driver of the Journey during the offence (bright red clothing on the upper part of the body). n. On January 12th, 2018, at 5:44 p.m., Mr. Clarke was located and arrested in the parking lot of Yorkgate Mall after he was observed by officers leaving his residence. He was in a vehicle with two other individuals. Officers followed the vehicle to Yorkgate Mall, where the vehicle parked and the individuals, including Mr. Clarke, entered the mall. They continued to follow Mr. Clarke inside the mall. Mr. Clarke returned to the vehicle, where officers arrested him and the other two males. o. The police searched Mr. Clarke incident to arrest and located a loaded 40 calibre Smith & Wesson firearm in a fanny pack attached to his waist. The firearm was loaded with one round in the chamber and 14 rounds in the magazine. The serial number on the firearm was defaced. p. Mr. Clarke did not have a firearms acquisition certificate or licence to possess a firearm. q. The other suspects in this incident remain unidentified and outstanding.

[8] These are the facts upon which Mr. Clarke is being sentenced. I will now turn to a consideration of Mr. Clarke’s background.

Personal Background

[9] Mr. Clarke’s background was provided to the Court by way of submissions from his counsel. Those submissions may be summarized as follows:

a. Mr. Clarke is 19 years-old. At the time of his arrest, he was just 18 years-old. b. Prior to his arrest, Mr. Clarke was residing with his mother, stepfather, younger sister and grandmother. c. Mr. Clarke has been in a relationship for approximately two years. They have no children. d. He has completed some credits for his high school diploma up to grade 10. e. He was not employed at the time of his arrest. f. Mr. Clarke suffers from ADHD but there are no substance abuse issues.

[10] Mr. Clarke has a criminal record that contains Youth Court convictions as follows:

Date	Offence	Sentence
May 18, 2016	Break, enter and commit.	Conditional discharge, 12 months of probation.
June 21, 2017	Possession of a prohibited or restricted firearm with ammunition.	Probation for 15 months in addition to 177 days of pre-sentence custody, together with a discretionary weapons prohibition for 2 years.

[11] When asked if he wished to say anything during the proceeding, Mr. Clarke stated that he takes full responsibility for his actions. Serving his pre-sentence custody in an adult facility had made him realize that he needs and wants to start a fresh life as an adult. He says that he has learned his lesson. He wishes to become a contributing member of our society by completing his education and becoming gainfully employed.

[12] I will now turn to a consideration of the relevant legal principles.

The Law

[13] In determining an appropriate sentence for Mr. Clarke, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, which provides as follows:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[14] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in ss. 718.2(a)(i) to (vi); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)). [6]

[15] Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. [7]

Range of Sentence

[16] The mandatory minimum sentence for robbery with a firearm committed contrary to s. 344(1)(a.1) of the Code is four years in custody. Crown Counsel has also provided cases which support her position for a sentence in the range of six to 8 years. They may be summarized as follows:

R. v. Dayes: [8] Mr. Dayes was convicted of nine offences arising from an armed robbery. Three or four masked men robbed occupants of a vehicle while armed with a shotgun and a knife. Mr. Dayes did not testify at his trial or call evidence. However, it was his position that he did not know of or participate in any robbery. He merely agreed to drive his friends prior to his arrest. He was convicted. The trial judge concluded that Mr. Dayes was not merely the driver but had participated in the planning of the robbery. He was sentenced to six years in custody. The Ontario Court of Appeal found that the six-year sentence was fit and proper.
R. v. Omar: [9] Mr. Omar pleaded guilty to possessing a loaded prohibited firearm, possession of a firearm knowing that it was unauthorized and breach of a weapons prohibition. McMahon J. sentenced him to a global sentence of six years. McMahon J. noted that at the time of his arrest, Mr. Omar was driving an SUV with the firearm concealed in a compartment in the center console. As such, he posed “an immediate danger to the public”. McMahon J. also noted that Mr. Omar had previously been convicted of the same offence of possessing a firearm with ammunition as well as possession of drugs for purpose of trafficking, breaching a court order and a recognizance. At that time, he was sentenced to 6.5 months. The Court of Appeal upheld the sentence noting, at para. 8 that, “The range of sentences is most significantly affected by growing judicial recognition of the reality of gun crime, as it should be.”
R. v. Thavakularatnam: [10] Mr. Thavakularatnam pleaded guilty to possession of a loaded restricted firearm and possession of the firearm knowing that he was not the holder of a licence to do so. Following a tip, Mr. Thavakularatnam was followed to the Malvern Mall in Toronto. A struggle ensued as police tried to arrest him. An officer was injured. During the struggle, a satchel was flung aside. Inside, was a loaded firearm. Mr. Thavakularatnam was a youthful offender with no adult criminal record. In concluding the appropriate sentence was 40 months, Akhtar J. observed:

21 Gun crime has become a cancer in Toronto. Despite several years of case law condemning the offence, the possession of firearms remains a blight on the city and its residents. Guns are made and used to maim, threaten and kill. Their impact goes well beyond the victims of such crime: spouses, romantic partners, parents and children suffer the trauma of a loved one lost to the mindless violence wrought by the use of firearms. Witnesses to gun violence may suffer traumatic effects that linger for their lifetime. Courts have sought to send an unambiguous message to those involved in gun crime that convictions will inevitably bear severe consequences: R. v. Danvers (2005) , 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 78 ; R. v. Brown , 2010 ONCA 745 , 277 O.A.C. 233, at para. 14 ; R. v. Morris , 2011 ONSC 5206 , at paras. 10 , 58, affirmed, 2013 ONCA 223 , 305 O.A.C. 47; R. v. Chambers , 2012 ONSC 817 , at paras. 15-17 , affirmed, 2013 ONCA 680 , 311 O.A.C. 307; R. v. Scarlett , 2013 ONSC 562 , at paras. 13-14 ; R. v. Peterkin , 2013 ONSC 2116 , at paras. 22 , 24.
R. v. McIntyre: [11] Mr. McIntyre was convicted of various offences, including robbery with a firearm. A sentence of six years was imposed by the trial judge. Mr. McIntyre and an accomplice attempted to steal a car. He pointed a firearm at the victim, grabbed the car keys and struck the victim across the face, causing him to lose consciousness for a short time. The blow also required stitches. Mr. McIntyre was subject to a prohibition order at the time. The sentence was upheld by the Court of Appeal. It held that despite the young age of Mr. McIntyre at the time of the offence (18), “crimes involving serious violence require emphasis on denunciation and general deterrence no matter the age of the offender”.

The Duncan Credit

[17] Counsel for Mr. Clarke provided cases in support of his position on a Duncan credit, some of which may be summarized as follows:

R. v. Persad: [12] Schreck J. was sentencing Mr. Persad for firearms and drug trafficking offences (a loaded firearm, a loaded over-capacity magazine, nearly four kilograms of cocaine and 32 grams of fentanyl). At the time of possessing the firearm, he was prohibited from doing so by a court order. A joint submission of nine years was submitted as the appropriate sentence.

Schreck J. gave Mr. Persad significant credit because of the conditions at the TSDC. After reviewing several cases dealing with the state of repeated lockdowns due to understaffing at the TSDC, he adopted the observations of his colleagues, describing the situation at the TSDC, at para. 31, as “unacceptable, shocking, deplorable, harsh, oppressive, degrading, disheartening, appalling, Dickensian, regressive and inexcusable.” He concluded, at para. 34, that the courts had “reached the point where inhumane conditions at the TSDC go beyond being an unfortunate circumstance and can more properly be described as essentially a form of deliberate state misconduct”. He gave Mr. Persad a further 1.5 days of credit for each day he spent in lockdown. At para. 37 he stated that, “The increase in credit is intended to communicate this court’s affirmation of our community’s most basic values that have been shamefully ignored in this case.”
R. v. Antrobus: [13] Mr. Antrobus was found guilty of possessing a prohibited firearm while knowingly not being the holder of a license or registration certificate contrary to s. 92(1) of the Criminal Code and possession of a prohibited firearm without being the holder of a license or registration certificate contrary to s. 91(1) of the Criminal Code. When police executed a warrant at an apartment, Mr. Antrobus threw a package from the balcony. It contained a Smith & Wesson firearm.

A joint submission of three years was proposed before credit was applied. Counsel agreed that Mr. Antrobus should receive Duncan credit. They simply disagreed on the amount. Forestell J. examined the circumstances of the pre-sentence custody, finding that there were significant lockdowns, triple bunking, lack of access to fresh air, etc. She found that such conditions had impacted the physical and psychological health of Mr. Antrobus. Forestell J. adopted the reasoning in Persad, finding his conditions of incarceration oppressive. She found, at para. 30, that the “inhumane treatment of inmates cannot be condoned by the court”. She found that Mr. Antrobus should be given enhanced credit in excess of the usual credit of one-half to one day for each day of oppressive conditions. Recognizing, at para. 31, that “there is no mathematical formula for determining the amount of enhanced credit for harsh conditions”, she gave Mr. Antrobus nine months of credit. [14]

COVID-19 Considerations

[18] Mr. Clarke has pleaded guilty and proceeded to sentencing during the global COVID-19 pandemic. Counsel for Mr. Clarke provided cases in support of his submission for increased credit due to the pandemic.

[19] The circumstances of COVID-19 adversely affect the conditions of imprisonment. There are increased risks for those incarcerated in any institution. This observation has been made by several jurists, including Harris J. in R. v. Kandhai [15] 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.

[20] In considering the fit sentence in the current climate, Counsel for Mr. Clarke has suggested that the court may consider the impact of the pandemic on sentencing principles. Pomerance J. has given guidance on this issue in R. v. Hearns [16] at paras. 15 and 16 wherein she held:

How does all of this [the COVID-19 pandemic] 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.

COVID-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.

[21] Crown Counsel also provided cases on the issue of the impact of COVID-19 when sentencing a defendant. They may be summarized as follows:

R. v. Morgan: [17] Mr. Morgan was sentenced to two years less a day for aggravated assault and three counts of failing to comply with court orders. Mr. Morgan submitted that although the sentence was fit at the time it was imposed, the intervening events of the COVID-19 pandemic had rendered it unfit and he sought a reduction of sentence. Beginning at para. 8, the Court of Appeal held as follows:

In our view, it is not necessary to decide whether this court could take judicial notice of the effects of the COVID-19 pandemic to the extent to which the appellant would have us do that. We do, however, believe that it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission.

In our view, the appellant’s submissions fall into the category of collateral consequences for sentencing purposes. As Moldaver J. noted in R. v. Suter , 2018 SCC 34 , [2018] 2 S.C.R. 496, at para. 48 :

The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence 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.

However, Moldaver J. went on to make a further observation in Suter that has direct application to the case here. He said, at para. 56:

I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case – collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.
R. v. Lariviere: [18] Mr. Lariviere appealed his sentence of 30 months for aggravated assault, use of an imitation firearm in the commission of an indictable offence, breach of a recognizance and possession of fentanyl. He had participated in a home invasion robbery. The victim suffered serious injuries. At the time of sentencing, Mr. Lariviere was 25 years of age with a criminal record for property offences. He was aboriginal. Mr. Lariviere submitted that his sentence should have been reduced as a result of the impact of the COVID-19 pandemic on the conditions of his detention. The Court of Appeal disagreed and held, commencing at para. 16:

16 The COVID-19 pandemic does not impel us to intervene and disturb a sentence that is fit: R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089. We adopt the approach from R. v. Morgan , 2020 ONCA 279 , in which this court recognized the impact of this virus on our society, at para. 8:

We do, however, believe that it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission.

17 However, there is nothing about the particular circumstances of the appellant's incarceration, nor any indication of a unique or personal vulnerability, that would justify shortening the fit sentence that was imposed.

[22] These are some of the legal considerations in this case. I will now turn to a consideration of the fit sentence in light of these principles.

Analysis

a. Mitigating and Aggravating Factors

[23] In considering the fit sentence, I find the following to be the aggravating factors:

a. Although he acted as the getaway driver, Mr. Clarke was still a party to the offences. There was a significant amount of violence exacted during the robberies. b. No Victim Impact Statement was filed. However, the Court can infer the impact on the victims of the robberies was significant. c. When arrested, Mr. Clarke possessed the restricted firearm in our city, a city which is currently plagued with firearm possession and use. d. Mr. Clarke was in a public place (a mall parking lot) when arrested in possession of the firearm. Members of our public were put at risk as a result. e. The firearm was loaded with one round in the chamber and 14 rounds in the cartridge. f. Mr. Clarke was subject to a prohibition order at the time he possessed the firearm. g. Mr. Clarke was on bail at the time of his arrest. He breached the terms of his bail regarding curfew and the possession of weapon. h. Mr. Clarke has a criminal record. He has an entry for a similar and related offence as a Youth. Despite being incarcerated in the past, he has not been deterred from committing criminal offences.

[24] There are mitigating circumstances to consider in sentencing Mr. Clarke as well:

a. Mr. Clarke is youthful. He is only 19 years of age. He was 18 at the time. b. There was a plea of guilt. The plea resulted in a saving of resources in a post-Jordan era and in a COVID-19 era where judicial resources have been drastically reduced. c. Mr. Clarke has shown remorse by pleading guilty. d. The plea provided certainty of result. The witnesses did not have to testify. e. Mr. Clarke expressed remorse when asked to speak during the teleconference.

[25] I will now turn to a consideration of the fit sentence.

The Fit Sentence

[26] So, what is the fit sentence? The appropriate sentence imposed must be one from which our society feels protected and which deters others from committing similar crimes, without crushing the hopes of Mr. Clarke. However, Mr. Clarke deserves a sentence that addresses the appropriate legal principles in consideration of his background, the facts, the gravity of the offences which is significant and the moral blameworthiness of Mr. Clarke which is high.

[27] The sentence for breaching the court orders must be consecutive. Those charges represent separate and distinct offences from that of possessing the firearm and other offences. [19]

[28] In reaching my conclusion about the fit sentence, I also cannot ignore the principle of totality. However, I find that the primary sentencing objectives in this case are denunciation and deterrence.

[29] I am also mindful of the fact that this would have been Mr. Clarke’s first visit to the penitentiary and of the direction of Rosenberg J.A. in R. v. Borde [20], that a “first penitentiary sentence should be as short as possible”. Mr. Clarke is a young man with only one entry on his criminal record as a youth. This is the first adult sentence for a 19 year-old man. That said, the jump principle is not applicable due to the severity of the offences.

[30] Lastly, the fact that Mr. Clarke pleaded guilty at a time when court resources are in high demand warrants significant consideration. Numerous trials have had to be rescheduled since the suspension of the courts on March 17, 2020. Mr. Clarke’s plea of guilt has saved weeks of court time during a period where such resources are limited due to the COVID-19 pandemic. Further, Mr. Clarke will continue to serve his sentence under the difficult circumstances of the pandemic.

[31] Although the position of the Crown is entirely reasonable, I find that in these unique circumstances the appropriate sentence is a global one of five years (60 months). Mr. Clarke is entitled to a reduction in sentence for a variety of reasons.

b. The Summers Credit

[32] Mr. Clarke will be given credit for time spent in pre-sentence custody in accordance with s. 719(3.1) of the Criminal Code and Summers. Mr. Clarke has been in custody since January 12, 2019. As such, as of June 24, 2020 he has spent 530 real days in custody (17.5 months). This total, enhanced at 1.5 days for each day spent in pre-sentence custody results in a credit of 794 days (rounded to 800) or 27 months (again, rounded). In all of the circumstances, Mr. Clarke will be given a credit of 27 months . [21]

c. The Duncan Credit

[33] In certain circumstances, particularly when harsh conditions prevailed during pre-sentence incarceration, mitigation greater than the 1.5 days’ credit set out in s. 719(3.1) of the Criminal Code may be appropriate. In considering whether any enhanced credit should be given, the court will consider the conditions of the pre-sentence custody and the impact of those conditions on the defendant. If the court finds that there is an adverse effect on the defendant flowing from the pre-sentence conditions, the sentence can be reduced further to reflect the added mitigation for the conditions of the pre-sentence incarceration. [22]

[34] The hearing with respect to the issue of applying Duncan credit proceeded in two stages. No records were sought in advance of the hearing. Mr. Clarke was affirmed and gave evidence with respect to the impact of the conditions at the TSDC during his incarceration. He said the following:

a. That he has been in custody since January 12, 2019 and that during that time, he was been subject to 150 days of lockdown. He has kept his own records that support such a position. b. He classifies a lockdown as a time when he does not have access to the showers or phones and is locked in his cell all day. On other days, the inmates might be out of their cells for three to four hours. He did not include those days in the 150 lockdown days. c. That on days when the range is fully locked down, he does not have access to the phones and showers every day. d. Since March 2020 there have been 88 days of lockdown. On some of those days, the inmates were in lockdown without explanation. Family members were not able to visit him during that time. No programs have been offered since March 2020. He has not had access to the yard, nor has he been able to participate in professional visits.

[35] After hearing the evidence of Mr. Clarke, Crown Counsel (quite properly) submitted that she required access to the institutional records to determine her position on the Duncan credit issue. Those records were produced. The records contradict some of the evidence of Mr. Clarke, but they demonstrate that there have been 224 days of full or partial lockdowns. These lockdowns have been due to staff shortages. It is submitted that there have been 88 days of time served wherein extra anxiety has arisen due to the COVID-19 pandemic.

[36] During the time Mr. Clarke has been incarcerated in the TSDC and during the lockdowns, I accept that:

a. There has been limited access to showers. This results in hygiene issues. b. Access to the phones is also difficult. As such, communication with family and counsel is limited. Visits have also been cancelled. c. Yard access has been reduced. d. Due to the COVID-19 pandemic, anxiety amongst the inmates has increased.

[37] Further, and although a number of the lockdowns were partial lockdowns as opposed to full lockdowns, I find that this is a distinction without a difference. I agree with the reasons of Davies J. on this issue set out in the case of R. v. Studd [23].

[38] In Studd, Crown Counsel suggested that Mr. Studd should be given no credit or less than one full day’s credit for the partial lockdowns caused by staff shortages. At para. 32, Davies J. said, “It is not simply the number of hours that detainees are locked down that make the conditions at the TSDC intolerable. It is the persistence of the problem, the cumulative effect of repeated lockdowns and the unpredictability of how long any lockdown will last that causes unacceptable stress and tension for the detainee.” I completely agree.

[39] There is no mathematical equation for the time to be credited as compensation for being incarcerated under harsh conditions. However, the message must be sent that it is inappropriate for inmates awaiting trial and who are presumed innocent, to be punished because the institutions are not properly staffed. Again, this is not meant as a criticism of those employed at the institution; however, more needs to be done to ensure that it is properly staffed. The COVID-19 pandemic further complicates matters, worsening the conditions and creating greater hardship for the inmates.

[40] Based on the evidence before me, and in these most unusual times, I am prepared to give Mr. Clarke a further credit of 10 months , given his harsh experience while in pre-sentence custody.

Conclusion

[41] In conclusion, Mr. Clarke is sentenced to a global sentence of five years (60 months), less the following credits: Summers credit: 27 months; and Duncan credit: 10 months. When the credits (37 months) are deducted from the sentence of 5 years (60 months), Mr. Clarke is required to serve another 23 months in custody.

[42] The sentence shall be recorded as follows:

Count	Offence	Sentence
1	Robbery with a firearm.	4 years (48 months) less 37 months pre-sentence custody for a further 11 months to serve.
3	Breach of recognizance (curfew).	6 months consecutive to Count 1.
5	Possession of a loaded prohibited or restricted firearm without being the holder of an authorization, etc.	4 years (48 months) less 37 months pre-sentence custody for a further 11 months to serve concurrent to Count 1.
9	Possession of a prohibited device (an overcapacity magazine).	6 months concurrent to Count 1.
10	Possession of a firearm knowing the serial number has been altered, etc.	6 months concurrent to Count 1.
12	Possess a firearm while prohibited from doing so pursuant to an order made under s. 51 of the Youth Criminal Justice Act.	6 months consecutive to Counts 1 and 3.

[43] Mr. Clarke will be placed on probation for a period of 12 months. He will report within seven days of his release and thereafter as required. He will possess no weapons and participate in counseling or programs as required by his probation officer.

[44] The following ancillary orders are imposed:

a. an order under s. 487.05 of the Criminal Code that Mr. Clarke provide a sample of a bodily substance for the purpose of forensic DNA analysis and storage in the national DNA database; b. a forfeiture order; and c. an order under s. 109 of the Criminal Code for life.

Kelly J. Released: June 25, 2020