Court of Appeal for Ontario

Citation: R. v. Chumbley, 2020 ONCA 474 Date: 2020-07-17 Docket: C68277

Before: MacPherson, Pardu and Trotter JJ.A.

Between:

Her Majesty the Queen Respondent

and

Peter Chumbley Appellant

Counsel: Mark Halfyard, for the appellant Andrew Hotke, for the respondent

Heard and released orally: July 17, 2020 by video conference

On appeal from the sentence imposed on March 9, 2020 by Justice Pamela Borghesan of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant asks this court to consider fresh evidence about the conditions she endured during presentence custody, and to reduce her sentence to reflect those hardships.

[2] The appellant says she asked her counsel on the guilty plea to obtain the institutional records to show the extent of lockdowns and the other conditions of her detention. She says her lawyer told her that Legal Aid would not pay to get those records. Because of this refusal to get the records, the appellant terminated that counsel’s retainer and made submissions on her own behalf. She only mentioned the conditions under which she had been held, and asked for some credit because of that, after the sentencing judge delivered the decision on sentence.

[3] The Crown and duty counsel have now cooperated to get those records. They reveal that the combination of mental illness, the institutional housing offered to transgender inmates who identify as female, and the appellant’s continuing trauma resulting from a childhood with a drug addicted Aboriginal father who introduced her to drugs at an early age, have created exceptional suffering for this appellant. She was in lockdown for approximately 33 days during presentence custody. She was confined to her cell for 22 hours a day. She tried to hang herself twice and was hospitalized as a result of the injuries she sustained in the suicide attempts. Rehabilitative programs were not available to her because of her transgender identity.

[4] The sentencing judge sentenced her to eight months, after a seven-month credit for presentence custody. This credit was short 3 days, calculated on a 1.5 to 1 ratio.

[5] The appellant’s statutory release date is just one month away, on August 18, 2020.

[6] We admit the fresh evidence. This should have been before the sentencing judge and would have had an impact on the sentence imposed. This is different from evidence of rehabilitative progress or difficulties which could properly be considered by the parole authorities. The interests of justice require that we consider this evidence of intense human suffering. The appellant submitted to the sentencing judge,

… I’m falling apart right now. Since I’ve identified as female I’m in 22 hour lockup. I’m segregated by myself. I don’t get the programs that other inmates get. Um, before I got out last time I hung myself. Got tooken to the hospital for 8 days. Um, since being reincarcerated, I’ve hung myself again. And got took to the hospital again. This is the scar from the noose. Um, I I’m mentally falling apart right now…

[7] Given the impact on this offender, it is an appropriate case to give some credit against sentence to reflect the harsh conditions of presentence detention and the consequences for this appellant: see R. v. Duncan, 2016 ONCA 754. In light of the fast-approaching statutory release date, we allow the appeal, reduce the custodial portion of the sentence to time served and the probation order will remain in force on the terms ordered by the trial judge.

"J.C. MacPherson J.A."

"G. Pardu J.A."

"Gary Trotter J.A."