Court of Appeal for Ontario

CITATION: R. v. Marong, 2020 ONCA 598

DATE: 20200922

DOCKET: C67406

Fairburn A.C.J.O., MacPherson and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Malamin Marong

Appellant

Malamin Marong, acting in person

Amy Ohler, appearing as duty counsel

Scott Wheildon, for the respondent

Heard: September 9, 2020 by video conference

On appeal from the convictions entered by Justice Ramez Khawly of the Ontario Court of Justice, dated June 21, 2019, and from the sentence imposed on August 15, 2019.

REASONS FOR DECISION

[1] At the conclusion of the oral hearing we dismissed the appellant’s appeal of his convictions for firearm offences but allowed his sentence appeal with reasons to follow. These are our reasons.

[2] After a trial in the Ontario Court of Justice, the appellant was convicted of a number of offences related to his possession of a firearm and a single count of possession of cocaine.

[3] The defence called one witness at trial, Adam Dacosta Silva. Dacosta Silva, a drug dealer, sold cocaine on several occasions to an undercover police officer. The police attempted to identify Dacosta Silva’s supplier. On June 19, 2018, the appellant was observed by the police driving Dacosta Silva to a drug deal. Dacosta Silva got out of the car and completed the sale to the undercover police officer. The appellant drove away. Shortly after the sale, Dacosta Silva was arrested. The appellant was followed by the police and arrested in the car. The police searched the car and discovered a loaded firearm in the middle console of the car, drug paraphernalia and cocaine.

[4] At trial, Dacosta Silva testified that the firearm was his and that he had left it in the car without the appellant's knowledge. The trial judge rejected this testimony. In doing so, the trial judge observed that it was highly implausible that Dacosta Silva would leave a gun in the car without the appellant’s knowledge and that Dacosta Silva was motivated to lie about the appellant’s possession of the gun because he did not want to be labeled as a “rat” by the criminal subculture. The trial judge also noted that the gun was found in the console and the appellant was the only occupant in the car when it was stopped by the police. He found that the appellant was in possession of the firearm and found him guilty of the firearm offences. He also found the appellant guilty of possession of cocaine.

[5] The trial judge imposed a global sentence of 48 months. He granted the appellant credit for pre-trial custody on a 1.5 to 1 basis of 21 months, leaving 27 months left to serve on his sentence.

[6] With the assistance of duty counsel, the appellant appeals his convictions for the firearm offences and his sentence.

The Conviction Appeal

[7] The appellant argues that the trial judge erred in his credibility assessment of Dacosta Silva. The appellant’s primary argument is that the trial judge reasoned from stereotypes about how criminals behave to find that Dacosta Silva was motivated to lie in his testimony, and to ultimately reject Dacosta Silva’s evidence. The appellant also claims that the trial judge misapprehended the entirety of the evidence, by failing to consider evidence that corroborated Dacosta Silva’s version of events.

[8] We do not accept the appellant’s arguments, nor do we see any basis to interfere with the trial judge’s credibility assessment of Dacosta Silva. Credibility assessments attract a very high degree of deference on appeal and in our view, it was open to the trial judge to find that Dacosta Silva was motivated to provide evidence favourable to the appellant. In any event, Dacosta Silva’s “motivation” was only one of the reasons that the trial judge gave for rejecting his evidence about the gun. The trial judge also noted that Dacosta Silva “skirted too much” in his testimony and had no answer to a question about how he was going to retrieve the gun after leaving it in the car.

[9] On the trial judge’s findings, the gun was in the middle console and the appellant was the only occupant of the car. We would not interfere with the trial judge’s conclusion that the only reasonable inference on the evidence was that the appellant was in possession of the firearm in the car.

The Sentence Appeal

[10] The appellant argues that the judge erred in not granting him any credit for harsh presentence conditions of custody: R. v. Duncan, 2016 ONCA 754. In Duncan, this court held that in appropriate circumstances, an offender can be granted credit for particularly harsh presentence incarceration conditions apart from the credit set out in s. 719(3.1) of the Criminal Code, R.S.C. 1985, c. C-46. The appellant argues that the appropriate credit in this case for the lockdowns is about 75 days credit.

[11] During the sentencing hearing, defence counsel submitted that the appellant was subjected to lockdown between 111 to 152 days while in presentence custody. Counsel submitted that the lockdowns meant that the appellant was prohibited from leaving his cell for fresh air and was required to eat his meals in areas that were also bathrooms. The appellant sought credit of three months to reflect the harshness of his presentence custody. The Crown did not dispute that the appellant was subjected to about 111 days of lockdown, nor did it dispute the description of the conditions of those lockdowns. However, the Crown submitted that Duncan credit of only two months should be given.

[12] In his reasons for sentence, the sentencing judge stated that “Lockdown or no lockdown he chose to do the crime” and he did not grant credit for the conditions of the lockdown.

[13] In Duncan, at para. 6, this court held that in considering whether any enhanced credit should be given, a sentencing judge “will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused”. Although the granting of credit for particularly harsh presentence conditions is discretionary, we agree with the appellant that the trial judge erred by not explaining why he refused to grant credit. There was no dispute by the parties during their sentencing submissions that the appellant had experienced harsh conditions in the form of lockdowns and that enhanced credit should be given. In the unusual circumstances of this case, and particularly bearing in mind the agreement of the parties at trial, we agree with the appellant that Duncan credit should have been given. We agree with the appellant that 75 days should be credited towards the sentence to reflect the harness of the appellant’s presentence custody.

Conclusion

[14] The appeal from conviction is dismissed. Leave to appeal sentence is granted. We allow the sentence appeal to the extent of granting 75 days additional credit to the sentence currently being served. For clarity, the global sentence is one of 48 months less credit for 21 months pre-trial custody and 75 days for presentence custody conditions. Otherwise, we would not interfere with the sentence.

“Fairburn A.C.J.O.”

“J.C. MacPherson J.A.”

“S. Coroza J.A.”