Court of Appeal for Ontario

Date: 2020-05-01 Docket: C66225

Judges: MacPherson, Benotto and Nordheimer JJ.A.

Between: Her Majesty the Queen Respondent

And: Christopher Dockery Appellant

Counsel: Amy Ohler, for the appellant Jessica Smith Joy, for the respondent

Heard: via teleconference on April 27, 2020

On appeal from the sentence imposed on November 15, 2018 by Justice Susan M. Chapman of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant pleaded guilty to aggravated assault as a result of a violent attack on his girlfriend. Following a Gardiner hearing, he was sentenced to five years imprisonment with credit – calculated at 1:1.5 – for pre-trial custody.

[2] He appeals his sentence on the basis that the sentencing judge erred by not granting enhanced credit for the time he spent in lockdown. He submits that the sentencing judge did not apply this court’s decision in R. v. Duncan, 2016 ONCA 754. He also suggests that she failed to give him the assistance he needed as a self-represented party.

[3] We do not agree.

[4] The brief reasons in Duncan permit but do not require the court to exceed the 1:1.5 ratio when the conditions have been “particularly harsh” and have had an adverse effect on the individual. The sentencing judge considered the conditions of the lockdown and the appellant’s evidence as to the effect on him. She also considered the evidence that he was “well cared for” during the time. We see no reason to interfere with the exercise of her discretion not to grant enhanced credit. Nor do we see that she failed to provide him with assistance. The appeal with respect to the enhanced credit is dismissed.

[5] On consent of the Crown, the appeal with respect to the victim surcharge is allowed.

“J.C. MacPherson J.A.”

“M.L. Benotto J.A.”

“I.V.B. Nordheimer J.A.”