Her Majesty The Queen v. Kivi Bar Wari, 2022 ONSC 2275

COURT FILE NO.: 20-RM19810 DATE: 20220414

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – KIVI BAR WARI Accused

COUNSEL: Chantal Lefebvre and David Nugent, for the Crown Biagio Del Greco and Michael Davies, for the Accused

HEARD: February 18, 2022

REASONS FOR JUDGMENT RE SENTENCING

AITKEN J.

Nature of Proceedings

[1] On February 18, 2022, Kivi Bar Wari pled guilty to the manslaughter of William Renwick, his cellmate at the Ottawa-Carleton Detention Centre. Crown and Defence counsel jointly recommended a sentence of eight years – a recommendation which I accepted. The only outstanding issue is the amount of pre-sentence custody to be credited. Crown counsel takes the position that no more than the standard Summers credit of 1.5:1 should be allowed for the days Mr. Bar Wari has been at the Detention Centre to the extent those days of pre-sentence custody have not already been used in regard to other offences. Defence counsel submits that Mr. Bar Wari should receive additional enhanced credit, sometimes referred to as a Duncan credit, due to the unduly harsh conditions at the detention centre during the COVID pandemic.

Agreed Statement of Facts

[2] On October 17, 2020, Mr. Bar Wari and Mr. Renwick were both in custody at the Ottawa-Carleton Detention Centre. On that date, Mr. Bar Wari and Mr. Renwick became cellmates in cell two of Pod A at the Detention Centre. At approximately 10:30 p.m. that day, Correctional Officers Strawbridge and Hebert conducted their usual tour of Pod A to check on the wellness of the inmates. During this tour, Correctional Officer Hebert had a brief discussion with Mr. Bar Wari about the toilet being clogged in their cell. At this time, Mr. Bar Wari and Mr. Renwick were awake, alert, and no conflict was apparent or raised.

[3] Shortly thereafter, inmates in nearby cells heard Mr. Bar Wari and Mr. Renwick arguing for up to ten minutes for an unknown reason. During that argument, Mr. Bar Wari called out to guards several times, saying: “I’m going to hit my cell mate”. This was heard by nearby inmates. The inmates then heard a struggle in cell two that went on for several minutes. Sounds of repeated banging against the cell wall and toilet were also heard. It remains undetermined how or why the altercation began; however, during the altercation Mr. Bar Wari delivered multiple blows to Mr. Renwick’s head and it was impacted against a firm surface. At some point during the assault, Mr. Renwick became unconscious.

[4] When the assault ended, Mr. Bar Wari was heard calling out: “I hit my cellmate, we have a medical emergency”. A few minutes before their next tour at 11:00 p.m., the correctional officers heard shouting and therefore started their tour early. Correctional Officer Strawbridge found Mr. Renwick in his cell lying face down in a pool of his own blood. Mr. Bar Wari was seated on a stool further back in the cell and stated: “that’s what he gets”. Upon being discovered, Mr. Renwick was severely bloodied, visibly injured and unresponsive. Mr. Bar Wari had no visible injuries. His shoes, socks and jumpsuit were bloodied with the decedent’s blood.

[5] Mr. Renwick was transported to the Civic Campus of the Ottawa Hospital where it was determined he was in critical condition and had sustained, among other injuries, a diffuse traumatic brain injury. He was in a coma. On November 8, 2020, three weeks after the assault, Mr. Renwick succumbed to his injuries and died, never having regained consciousness.

[6] At the time of this incident, Mr. Renwick was a 49-year-old man who suffered from a number of illnesses including Bipolar Disorder and Parkinson’s. Upon completion of the autopsy, the Forensic Pathologist, Dr. Kepron, determined that the cause of Mr. Renwick’s death was complications of a blunt impact head injury. Mr. Renwick’s injuries were restricted to his head. In addition to the diffuse traumatic brain injury, he sustained a 10 cm laceration to the top right side of the head and fractures of the left cheekbone and the left eye socket. He also sustained a 2.5 cm laceration to his right forehead and a left eyelid laceration. Dr. Kepron determined that at least three blows were inflicted and she thought there likely were more based on the size of the large laceration to the top of Mr. Renwick’s head.

Records from the Ottawa-Carleton Detention Centre

[7] Scott Munro, the Security Manager at the Ottawa-Carleton Detention Centre, provided records regarding Mr. Bar Wari’s conditions of detention since he arrived at the Detention Centre on October 2, 2020.

[8] During much of his incarceration, Mr. Bar Wari has been housed in a stabilization unit or segregation unit. From August 4, 2021 to the present time, Mr. Bar Wari has been in a single cell and refuses to be placed with other inmates for his own protection. He was offered alternative housing arrangements but rejected them. He was also offered time with a small group of inmates in a dayroom but rejected that offer as well.

[9] For most of the time while Mr. Bar Wari has been detained at the Ottawa-Carleton Detention Centre, if the institution as a whole or his corridor or unit is not on lockdown, he has been afforded access to the dayroom for only two hours a day when time, space, and staff are available. According to Scott Munro, from October 27, 2020 to March 13, 2022, Mr. Bar Wari was offered time out of his cell on only 90 occasions. Mr. Bar Wari came out of his cell on 49 of those occasions and refused to do so on the other occasions.

[10] Between October 4, 2020 and March 13, 2022, by my calculations, based on reports provided by Mr. Munro, Mr. Bar Wari was subject to the following corridor, unit, or institutional lockdowns:

• Morning (0900 to 1130): 46
• Afternoon (1300 to 1630): 40
• Evening (1900 to 2100): 55
• All day (0900 to 2100): 73

[11] From May 28 – June 20, 2021, and again from January 7 – February 7, 2022, the Detention Centre was on full lockdown due to COVID outbreaks. During these lockdowns, inmates were not offered time out of their cells. These days are reflected in the “all day” lockdowns referred to above.

Calculation of Pre-sentence Custody

[12] From October 1, 2020, when Mr. Bar Wari was arrested, to today’s date is 561 days. Mr. Bar Wari was already given credit for 150 of those days when he was sentenced on October 5, 2021 by Brown J. of the Ontario Court of Justice following convictions for breaking and entering and causing mischief. Brown J. sentenced Mr. Bar Wari to a global sentence of eight months. Brown J. indicated that the first five months (150 days) of Mr. Bar Wari’s time at the Ottawa-Carleton Detention Centre would be used for pre-sentence custody calculations in the case before him and he gave Mr. Bar Wari enhanced credit under Summers and Duncan of eight months. What this means, in essence, is that Mr. Bar Wari received 180 days of enhanced credit under Summers and further credit under Duncan of 60 days.

[13] The pre-sentence custody that remains to Mr. Bar Wari for consideration at this sentencing is 411 days. This is the period from March 2, 2021 to the present during which time there were two lengthy periods of institutional lockdowns due to COVID outbreaks and otherwise Mr. Bar Wari was confined to his cell most days with very little opportunity for time out of the cell.

Jurisprudence

[14] In R. v. Marshall, 2021 ONCA 344, Doherty J., at paras. 50-53, provided guidance as to how sentencing judges should treat Summers and Duncan credits for pre-sentence custody:

A “Duncan” credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind the 1.5:1 “Summers, at paras. 28-29” credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody: Summers, at paras. 28-29. The “Duncan” credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a “Duncan” credit: R. v. Morgan, 2020 ONCA 279.

It is also important to appreciate and maintain the clear distinction between the “Summers” credit and the “Duncan” credit. The “Summers” credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence. The “Summers” credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. The “Summers” credit is statutorily capped at 1.5:1. It is wrong to think of the “Summers” credit as a mitigating factor. It would be equally wrong to deny or limit the “Summers” credit because of some aggravating factor, such as the seriousness of the offence: R. v. Colt, 2015 BCCA 190.

The “Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

Often times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk the “Duncan” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated in that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 187 O.A.C. 307 (C.A.)

Analysis

[15] There is no question that the conditions at the Ottawa-Carleton Detention Centre during the COVID pandemic have been exceptionally harsh. Detainees are regularly kept in their cells for days on end with no access to, or very minimal access to, showers, telephones, yard time, visitor time, and social time. Additionally, the detainees must live with the anxiety produced by the risk of contracting COVID in an environment where there is very little they can do to reduce that risk. Although vaccinations and masks have been offered to the detainees at the Detention Centre, the detainees are not obliged to take advantage of these risk-reducing options. Consequently, although individual inmates may choose to do so, there is nothing they can do if those around them do not. While Mr. Bar Wari has been housed at the Detention Centre, there have been two institutional outbreaks resulting in lockdowns for weeks on end.

[16] Without question, these particularly harsh conditions at the Ottawa-Carleton Detention Centre are a mitigating factor in this case for which Mr. Bar Wari should receive a Duncan credit: R. v. Bristol, 2021 ONCA 599, at para. 11. However, as explained in Marshall, this mitigating factor is to be considered when a fit and appropriate sentence is being determined. It does not come into play after that sentence is decided upon and when enhanced credits for pre-sentence custody under Summers are being mathematically calculated.

[17] I note that the Marshall decision was released May 21, 2021 – well before resolution discussions were underway in this case and Crown and Defence counsel came to a joint recommendation regarding an appropriate sentence. I also note that the impact that COVID had on the conditions Mr. Bar Wari has experienced while in the Ottawa-Carleton Detention Centre was raised and discussed when counsel explored my willingness to accept their joint submission. In short, the Duncan credit was already factored into Mr. Bar Wari’s sentence when Crown and Defence counsel agreed that a fit and appropriate sentence would be eight years and when I accepted that joint submission.

[18] During submissions regarding the credit Mr. Bar Wari should receive for pre-sentence custody, both Defence and Crown counsel revisited the mitigating and aggravating factors that led them to conclude that a sentence of eight years was appropriate. That exercise was unnecessary as the mitigating and aggravating factors relevant to the calculation of an appropriate sentence are not to be taken into account again when determining credit for pre-sentence custody. Included in those factors was the impact COVID had on the conditions at the Detention Centre and the impact of those conditions on Mr. Bar Wari. Having already taken that factor into account in accepting counsel’s joint submission as to an appropriate sentence, it would be “double accounting” for me to take it into account again by increasing the enhanced credit for pre-sentence custody.

[19] For these reasons, I will give Mr. Bar Wari credit for 411 days of pre-sentence custody which when enhanced pursuant to Summers comes to 617 days. This credit shall be deducted from his sentence of eight years (2,920 days) leaving a balance of 2,303 days to be served.

Ancillary Orders

[20] There shall be a lifetime weapons prohibition order under s. 109 of the Code and a DNA order under s. 487.051(1) of the Code.

Aitken J. Released: April 14, 2022