Her Majesty the Queen v. Rajmoolie

[Indexed as: R. v. Rajmoolie]

Ontario Reports

Court of Appeal for Ontario

Gillese, Lauwers and Benotto JJ.A.

December 14, 2020

155 O.R. (3d) 64 | 2020 ONCA 791

Case Summary

Criminal law — Appeal — Fresh evidence on appeal — Accused pleading guilty to firearms offences and seeking additional credit for pre-sentence custody based on harsh conditions at detention centre — Trial judge granting standard credit — On appeal, accused seeking to admit fresh evidence of letters sent to Ombudsman complaining that of detention centre did not accommodate his leg injuries — Fresh evidence not admitted as it could have been adduced at trial by due diligence and could not be expected to have affected the result.

Criminal law — Sentencing — Pre-trial custody — Accused pleading guilty to firearms offences and seeking additional credit for pre-sentence custody based on harsh conditions at detention centre — Trial judge granting standard credit — Accused's appeal dismissed — Within the discretion of trial judge to conclude that 1.5 days of credit for every day spent in pre-trial custody was adequate — Decision entitled to deference in absence of error in principle.

The accused pleaded guilty to possessing a restricted firearm with readily accessible ammunition, and to possessing a firearm while prohibited and in breach of his recognizance. At his sentencing hearing, the accused addressed the issue of harsh conditions at the Toronto East Detention Centre. He submitted that he had two broken legs and could not take advantage of yard time because he could not use the stairs and there were not enough staff members to facilitate the use of the elevator. For the same reason, he could not access the visitation area. He described the effect on him of depression and upset. He said that he raised the issues by letter to the Ombudsman, but no letter was produced at the sentencing hearing. The sentencing judge accepted the evidence of the Security Manager for the detention centre and rejected much of the basis of the accused's complaints. She concluded that the circumstances of the accused's incarceration were not sufficiently harsh to warrant anything over and above 1.5 days of credit for every day spent in pre-sentence custody. The sentence imposed was four years, with 23 months yet to be served after credit of 25 months was granted. The accused appealed and sought to admit fresh evidence of three forms sent to the Ombudsman regarding yard visits.

Held, the appeal should be dismissed.

Per Benotto and Gillese JJ.A.: The fresh evidence was not admitted. The evidence could have been adduced at trial by due diligence. When taken with the other evidence it could not be expected to have affected the result.

It was within the discretion of the trial judge to conclude that the 1.5 days of credit for each day in pre-trial custody was adequate. The sentencing judge was aware of the conditions of the pre-sentence incarceration and the impact on the accused. In the absence of any error in principle, the decision was entitled to deference.

Per Lauwers J.A. (dissenting): The due diligence requirement was no barrier to the admission of the fresh evidence. The evidence was relevant and bore upon [page65] a decisive issue. It was reasonably capable of belief and could reasonably have been expected to change the outcome. The inhumane conditions in which the accused mouldered for so many months warranted additional credit. The doctrinal basis for an additional sentencing credit was not clear, but a plausible source of discretion was the implicit role of the Charter in providing a remedy for cruel and unusual punishment or for limits on a prisoner's life, liberty and security of the person. The accused ought to have been credited with an additional four months.

R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22, 17 C.R. (3d) 34, 4 W.C.B. 171, 1979 CCAN para. 10,018, apld

R. v. Duncan, [2016] O.J. No. 5255, 2016 ONCA 754, consd

Other cases referred to

Canadian Civil Liberties Assn. v. Canada (Attorney General) (2017), 140 O.R. (3d) 342, [2017] O.J. No. 6592, 2017 ONSC 7491, 144 W.C.B. (2d) 239, 43 C.R. (7th) 153, 358 C.C.C. (3d) 1, 401 C.R.R. (2d) 254 (S.C.J.); R. v. Angelillo, [2006] 2 S.C.R. 728, [2006] S.C.J. No. 55, 2006 SCC 55, 274 D.L.R. (4th) 1, 355 N.R. 226, J.E. 2007-25, 214 C.C.C. (3d) 309, 43 C.R. (6th) 34, 149 C.R.R. (2d) 317, 71 W.C.B. (2d) 445, EYB 2006-111644, JCPQ 2006-213; R. v. B. (G.D.), [2000] 1 S.C.R. 520, [2000] S.C.J. No. 22, 2000 SCC 22, 184 D.L.R. (4th) 577, 253 N.R. 201, [2000] 8 W.W.R. 193, J.E. 2000-919, 81 Alta. L.R. (3d) 1, 261 A.R. 1, 143 C.C.C. (3d) 289, 32 C.R. (5th) 207, 45 W.C.B. (2d) 567, REJB 2000-17891, 2000 CCAN para. 10,047; R. v. B. (J.), [2016] O.J. No. 855, 2016 ONSC 939 (S.C.J.); R. v. Burton, [2018] O.J. No. 1250, 2018 ONCJ 153; R. v. C. (R.), 1989 7204 (ON CA), [1989] O.J. No. 115, 31 O.A.C. 375, 47 C.C.C. (3d) 84, 7 W.C.B. (2d) 35; R. v. Callaghan, [2017] O.J. No. 1519, 2017 ONSC 1853 (S.C.J.); R. v. Catcheway, [2019] M.J. No. 180, 2019 MBCA 75; R. v. Chan, [2019] O.J. No. 1341, 2019 ONSC 1400 (S.C.J.); R. v. Charley, [2019] O.J. No. 5727, 2019 ONSC 6490 (S.C.J.); R. v. Chumbley, [2020] O.J. No. 3130, 2020 ONCA 474; R. v. Clarke, [2020] O.J. No. 2991, 2020 ONSC 3878 (S.C.J.); R. v. D. (M.C.), [2017] O.J. No. 3081, 2017 ONSC 3174 (S.C.J.); R. v. Douale, [2018] O.J. No. 3141, 2018 ONSC 3658 (S.C.J.); R. v. Fermah, [2019] O.J. No. 3037, 2019 ONSC 3597, 56 C.R. (7th) 154 (S.C.J.); R. v. Fuentes, [2003] O.J. No. 2545, 2003 57438 (C.A.); R. v. Georgiev, [2017] O.J. No. 1508, 2017 ONSC 1265 (S.C.J.); R. v. Gordey, [2020] A.J. No. 867, 2020 ABQB 425; R. v. Gregoire, [2018] O.J. No. 5713, 2018 ONCA 880; R. v. Hay, [2013] 3 S.C.R. 694, [2013] S.C.J. No. 61, 2013 SCC 61, 365 D.L.R. (4th) 276, 451 N.R. 34, J.E. 2013-1940, 312 O.A.C. 201, 302 C.C.C. (3d) 147, 6 C.R. (7th) 215, 110 W.C.B. (2d) 96, EYB 2013-228962, 2013EXP-3568; R. v. Hudson, [2019] O.J. No. 4731, 2019 ONCJ 608; R. v. Inniss, [2017] O.J. No. 2420, 2017 ONSC 2779 (S.C.J.); R. v. Jama, [2018] O.J. No. 1130, 2018 ONSC 1252 (S.C.J.); R. v. Kizir, [2018] O.J. No. 5127, 2018 ONCA 781; R. v. Lacasse, [2015] 3 S.C.R. 1089, [2015] S.C.J. No. 64, 2015 SCC 64, 396 D.L.R. (4th) 214, 478 N.R. 319, J.E. 2016-20, 333 C.C.C. (3d) 450, 24 C.R. (7th) 225, 86 M.V.R. (6th) 1, 128 W.C.B. (2d) 175, EYB 2015-259924, 2015 CCAN para. 10,036, 2015 CCAN para. 10,090, 2016EXP-59; R. v. Lévesque, [2000] 2 S.C.R. 487, [2000] S.C.J. No. 47, 2000 SCC 47, 191 D.L.R. (4th) 574, 260 N.R. 165, J.E. 2000-1934, 148 C.C.C. (3d) 193, 36 C.R. (5th) 291, 47 W.C.B. (2d) 351, REJB 2000-20351, 2000 CCAN para. 10,106; R. v. Linseman, [2019] O.J. No. 2464, 2019 ONCJ 304; R. v. Lowe, [2003] O.J. No. 2980 (S.C.J.); R. v. M. (P.S.), 1992 2785 (ON CA), [1992] O.J. No. 2410, 59 O.A.C. 1, 77 C.C.C. (3d) 402, 17 W.C.B. (2d) 570; R. v. Marong, [2020] O.J. No. 4006, 2020 ONCA 598; R. v. Pangon, [2020] Nu.J. No. 39, 2020 NUCJ 30; R. v. Permesar, [2003] O.J. No. 5420 (C.J.); R. v. Rezaie (1996), 1996 1241 (ON CA), 31 O.R. (3d) 713, [1996] O.J. No. 4468, 96 O.A.C. 268, 112 C.C.C. (3d) 97, 3 C.R. (5th) 175, 33 W.C.B. (2d) 218 (C.A.); R. v. Roberts, [2018] O.J. No. 4005, 2018 ONSC 4566 (S.C.J.); R. v. Sanchez, [page66] [2019] O.J. No. 4657, 2019 ONSC 5272 (S.C.J.); R. v. Singh (2014), 120 O.R. (3d) 76, [2014] O.J. No. 1858, 2014 ONCA 293, 318 O.A.C. 232, 64 M.V.R. (6th) 1, 310 C.C.C. (3d) 285, 112 W.C.B. (2d) 651; R. v. Singh, [2018] O.J. No. 3292, 2018 ONSC 3850 (S.C.J.); R. v. Sipos, [2014] 2 S.C.R. 423, [2014] S.C.J. No. 47, 2014 SCC 47, 374 D.L.R. (4th) 46, 460 N.R. 1, J.E. 2014-1238, 320 O.A.C. 76, 311 C.C.C. (3d) 121, 12 C.R. (7th) 18, 114 W.C.B. (2d) 251, EYB 2014-239528, 2014 CCAN para. 10,065, 2014EXP-2184; R. v. Smith, [2003] O.J. No. 1782 (C.J.); R. v. Steckley, [2020] O.J. No. 2992, 2020 ONSC 3410 (S.C.J.); R. v. Summers (2014), 130 O.R. (3d) 80, [2014] 1 S.C.R. 575, [2014] S.C.J. No. 26, 2014 SCC 26, 371 D.L.R. (4th) 581, 456 N.R. 1, J.E. 2014-658, 316 O.A.C. 349, 308 C.C.C. (3d) 471, 9 C.R. (7th) 223, 307 C.R.R. (2d) 96, 112 W.C.B. (2d) 393, EYB 2014-235729, 2014 CCAN para. 10,026, 2014EXP-1197; R. v. Tello, [2018] O.J. No. 2201, 2018 ONSC 2259 (S.C.J.); R. v. Timminco Ltd. (2001), 2001 3494 (ON CA), 54 O.R. (3d) 21, [2001] O.J. No. 1443, 144 O.A.C. 231, 153 C.C.C. (3d) 521, 11 C.C.E.L. (3d) 46, 42 C.R. (5th) 279, 49 W.C.B. (2d) 475 (C.A.); R. v. Ward-Jackson, [2018] O.J. No. 163, 2018 ONSC 178 (S.C.J.); R. v. Warsing, 1998 775 (SCC), [1998] 3 S.C.R. 579, [1998] S.C.J. No. 91, 233 N.R. 319, [1999] 6 W.W.R. 372, J.E. 99-107, 115 B.C.A.C. 214, 59 B.C.L.R. (3d) 47, 130 C.C.C. (3d) 259, 21 C.R. (5th) 75, 40 W.C.B. (2d) 261, REJB 1998-09775; R. v. Weir, [2018] O.J. No. 2475, 2018 ONSC 783 (S.C.J.); R. v. Wust, [2000] 1 S.C.R. 455, [2000] S.C.J. No. 19, 2000 SCC 18, 184 D.L.R. (4th) 385, 252 N.R. 332, J.E. 2000-832, 134 B.C.A.C. 236, 143 C.C.C. (3d) 129, 32 C.R. (5th) 58, 45 W.C.B. (2d) 492, REJB 2000-17652, 2000 CCAN para. 10,042

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 7, 12, 24(1)

Criminal Code, R.S.C. 1985, c. C-46 [as am.], ss. 719(3) [as am.], (3.1) [as am.]

Truth in Sentencing Act, S.C. 2009, c. 29

APPEAL by accused from sentence imposed by Kelly J., sitting without a jury, with reasons reported at [2020] O.J. No. 1689, 2020 ONSC 1400 (S.C.J.).

Allan Rajmoolie, acting in person.

Janani Shanmuganathan, appearing as duty counsel.

Sam Greene, for respondent.

[1] BENOTTO J.A. (Gillese J.A. concurring): — The appellant seeks leave to appeal his sentence.

[2] The appellant pleaded guilty to possessing a restricted firearm with readily accessible ammunition, and to possessing a firearm while prohibited from doing so and in breach of his recognizance.

[3] He appeals his sentence on the basis that the sentencing judge declined to award a further credit for harsh conditions at the Toronto East Detention Centre in accordance with R. v. Duncan, [2016] O.J. No. 5255, 2016 ONCA 754.

The Sentencing Hearing

[4] The Crown sought a global sentence of four to 4.5 years in custody. Defence counsel for the appellant submitted that the [page67] appropriate sentence was 3.5 years. The sentencing judge imposed the sentence of four years (48 months) together with ancillary orders. She granted the appellant credit of 1.5 days for every day spent in pre-sentence custody in accordance with R. v. Summers (2014), 130 O.R. (3d) 80, [2014] 1 S.C.R. 575, [2014] S.C.J. No. 26, 2014 SCC 26. The appellant was credited with 25 months, leaving 23 more months to be served.

[5] The appellant addressed the court at sentencing. He said that he had two broken legs and could not take advantage of yard time because he could not use the stairs and there were not enough staff members to facilitate use of the elevator. For the same reason, he could not access the visitation area. He described the effect on him of depression and upset. He said that he contacted the Ombudsman by letter to raise these issues. No letter was produced at the hearing.

[6] The Security Manager for the detention centre testified. When he heard that a letter was to be sent to the Ombudsman, he visited the appellant on multiple occasions. The appellant did not complain to him. Nor did he mention lack of yard time.

[7] The sentencing judge accepted the evidence of the Security Manager and rejected much of the basis for the appellant's complaints [at para. 38]:

I do not accept the evidence of Mr. Rajmoolie regarding increased hardship while incarcerated at the Toronto East Detention Centre. I accept the evidence of Sgt. Lawson: that when he was advised that Mr. Rajmoolie was having issues, he addressed them promptly and to the best of his ability. There is no evidence that any specific requests were raised by Mr. Rajmoolie that were not addressed. When medical treatment was offered, it was declined. When the offer to bring another pair of orthopaedic shoes was made, there was no response.

[8] She concluded that the circumstances of the appellant's incarceration did not meet the requirement of harshness required to warrant credit over and above the Summers credit. She refused to grant additional credit under the principles in Duncan to account for the harsh conditions the appellant experienced while he was incarcerated in the Toronto East Detention Centre.

Fresh Evidence on Appeal

[9] The appellant seeks to admit fresh evidence of three forms sent to the Ombudsman regarding yard visits. In the forms, he stated:

I have documented medical info. regarding my leg injuries that prevent me from being able to use the stairs . . . that is my "only way, so stop asking" and the last time I submitted a blue form, I was told that they will be taking me down the elevator moving forward. I asked the next day and again denied and denied. [page68]

I have submitted numerous written and verbal requests, spoken to unit staff on multiple occasions, all of which yielded no results. I spoke to a sergeant as well and a blue form was provided; 14 plus months there was no solution or acknowledgement of the issue as I persisted and suffered.

Continuously, for almost 15 months I submitted written and verbal requests, spoke to staff, sergeants, etc. I submitted a blue form already and now they are saying they will put me in segregation if I want fresh air because they will not take me by elevator.

Issues

[10] The issues on appeal are:

(1) Should the fresh evidence be admitted?

(2) Did the sentencing judge err by refusing to grant a Duncan credit?

Analysis

Should the fresh evidence be admitted?

[11] In order to adduce fresh evidence on appeal, the appellant must meet the test set out in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R 759, [1979] S.C.J. No. 126, at p. 775 S.C.R.: the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial; it must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; it must be credible in the sense that it is reasonably capable of belief; and, it must be such that, if believed, when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the result.

[12] I would not admit the fresh evidence for two reasons.

[13] First, by due diligence it could have been adduced at trial. Second, when taken with the other evidence it could not be expected to have affected the result. The same evidence regarding the lack of yard access, failure to use the elevator and complaints to the prison staff were before the sentencing judge. So too were the effects on the appellant. The purpose of fresh evidence is not to confirm or amplify evidence already provided.

Did the sentencing judge err by refusing to grant a Duncan credit?

[14] Duncan does not mandate a second level of credit for pre-sentence custody. Rather, it confirms that there is no cap on the [page69] 1.5 days of credit that can be given for pre-sentence custody. A higher credit may be given for "particularly harsh" conditions. At para. 6:

In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.

[15] The decision to award credit for pre-sentence custody is discretionary. Unless the sentencing judge errs in principle, the decision is entitled to deference.

[16] The sentencing judge was aware of the conditions of the pre-sentence incarceration and the impact on the accused. It was within her discretion to conclude that the 1.5 days of credit for each day was adequate.

Conclusion

[17] I would grant leave to appeal the sentence but dismiss the application for fresh evidence and the sentence appeal.

[18] LAUWERS J.A. (dissenting): -- The sentencing judge refused to give Mr. Rajmoolie additional credit on his sentence for the harsh conditions he suffered in his 16 months of pre-sentence incarceration at the Toronto East Detention Centre. He submits that she erred in failing to exercise her discretion to do so under R. v. Duncan, [2016] O.J. No. 5255, 2016 ONCA 754.

[19] In Duncan, at para. 6 the court held that "in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1)" of the Criminal Code, R.S.C. 1985, c. C-46. To attract enhanced credit on this ground, "the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused".

[20] I agree with Mr. Rajmoolie's submission and would grant him the additional four months Duncan credit he sought on appeal, for the following reasons.

A. The Conditions of Pre-Sentence Incarceration Mr. Rajmoolie Experienced at the Toronto East Detention Centre

[21] Access to natural light and open air in the yard every second day, as was customary in the Toronto East Detention Centre, offers prisoners a brief respite. Depriving a person of access to natural light and open air is inhumane to a marked degree. But that was, unaccountably, Mr. Rajmoolie's fate for 16 months.

[22] Mr. Rajmoolie could not, because of his impaired mobility, go down the stairs from his cell on the fifth floor to access the yard, [page70] nor could he climb the stairs to return to his cell. As a prisoner, he was not permitted to use the elevator alone and no one was prepared to assist him. He was left to moulder for all those months.

[23] The mobility issue also posed problems for visits with Mr. Rajmoolie's family and his counsel. His evidence, noted by the sentencing judge at para. 36, was that "he has suffered from anxiety and depression, . . . [and] has cut himself causing self-harm". No wonder.

The sentencing judge's reasons

[24] The sentencing judge noted, at para. 34:

The range upon which Mr. Rajmoolie was housed was given yard time (i.e., access to the outdoors) approximately every other day. The records from the Toronto East Detention Centre suggest that yard time was offered to Mr. Rajmoolie's unit 208 times. Although offered, Mr. Rajmoolie says that he was not able to access the yard due to his physical disability which was not accommodated. He further suggests that his visits were cancelled for the same reason.

[25] The sentencing judge added details, at para. 35:

Due to a disability caused by two broken legs with metal hardware in them (that occurred prior to Mr. Rajmoolie's incarceration), he was not able to take advantage of the yard time. This was due to his inability to descend or ascend the stairs which was necessary to access the yard. He was told that there were not enough staff at the Toronto East Detention Centre to accommodate his transport to and from the yard via the elevator. He says that he complained to the staff but was ridiculed by staff and he was not accommodated. The Ombudsman was also contacted but nothing improved. Despite his repeated requests to access the yard, they were denied.

[26] Although the sentencing judge was well aware of the oppressive conditions of Mr. Rajmoolie's incarceration, she did not pay sufficient attention to them in considering the exercise of her discretion under Duncan.

[27] Instead the sentencing judge doubted Mr. Rajmoolie's testimony. She accepted the evidence of Sergeant John Lawson, the Security Manager for the Toronto East Detention Centre, who said he had heard no complaints from Mr. Rajmoolie about lack of access to the yard. The sentencing judge stated, at para. 38:

I do not accept the evidence of Mr. Rajmoolie regarding increased hardship while incarcerated at the Toronto East Detention Centre. I accept the evidence of Sgt. Lawson: that when he was advised that Mr. Rajmoolie was having issues, he addressed them promptly and to the best of his ability. There is no evidence that any specific requests were raised by Mr. Rajmoolie that were not addressed. When medical treatment was offered, it was declined. When the offer to bring another pair of orthopaedic shoes was made, there was no response. [page71]

[28] The sentencing judge's response is understandable because defence counsel did not produce copies of Mr. Rajmoolie's complaints to the Ombudsman when he cross-examined Sgt. Lawson. It is also clear that Sgt. Lawson was aware that Mr. Rajmoolie was considering a complaint to the Ombudsman because, according to his testimony, that is what prompted him to visit on what appears to be only a single occasion.

[29] Quite apart from the fresh evidence discussed below, it would have been self-evident that a person in Mr. Rajmoolie's physical condition could not access the yard without assistance. His complaint had some validity on its face. It is not clear why the sentencing judge required stronger evidence of Mr. Rajmoolie's complaints when it was not seriously contested that he had not gone outside for nearly 16 months.

[30] In any event, Mr. Rajmoolie's fresh evidence on appeal helps to bridge the evidentiary gap that to which the sentencing judge referred.

B. The Fresh Evidence

[31] I lay out the fresh evidence and then explain why I would admit it under the test in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126.

(1) The details of the fresh evidence

[32] Mr. Rajmoolie has put before this panel, in the form of fresh evidence, correspondence from the Ombudsman that largely corroborates the testimony the sentencing judge rejected. The Ombudsman's office acknowledged, without providing the contact dates, that Mr. Rajmoolie had contacted them by telephone four times and had sent three letters dated December 28, 2019, January 8, 2020 and February 27, 2020. The letters are standard blue forms provided by the Ombudsman to detention facilities for use by inmates labelled "Inmate Complaint Form".

[33] Copies of the inmate complaint forms completed by Mr. Rajmoolie were provided as fresh evidence. They were not individually dated, but in them he stated:

I have documented medical info. regarding my leg injuries that prevent me from being able to use the stairs . . . that is my "only way, so stop asking" and the last time I submitted a blue form, I was told that they will be taking me down the elevator moving forward. I asked the next day and again denied and denied.

[34] He added:

I have submitted numerous written and verbal requests, and I have spoken to unit staff on multiple occasions, all of which yielded no results. I spoke to a sergeant as well and a blue form was provided; 14 plus months there was no solution or acknowledgement of the issue as I persisted and suffered. [page72]

[35] In another form he noted:

Continuously, for almost 15 months I submitted written and verbal requests, spoke to staff, sergeants, etc. I submitted a blue form already and they are saying they will put me in segregation if I want fresh air because they will not take me by elevator.

[36] Mr. Rajmoolie described the effects he suffered: "It has depressed me immensely to the point of self harm, exponentially amplified previous mental health issues for not only myself but my family as well."

(2) The governing principles concerning fresh evidence

[37] The four steps in the Palmer test to admit fresh evidence are well known. The evidence: (1) should generally not be admitted if by due diligence, it could have been adduced at trial; (2) must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3) must be credible in the sense that it is reasonably capable of belief; and (4) must be such that if believed, it could reasonably when taken with the other evidence adduced, be expected to have affected the result.

[38] The Palmer test applies to sentence appeals: R. v. Lévesque, [2000] 2 S.C.R. 487, [2000] S.C.J. No. 47, 2000 SCC 47; R. v. Angelillo, [2006] 2 S.C.R. 728, [2006] S.C.J. No. 55, 2006 SCC 55; R. v. Sipos, [2014] 2 S.C.R. 423, [2014] S.C.J. No. 47, 2014 SCC 47; and R. v. Lacasse, [2015] 3 S.C.R. 1089, [2015] S.C.J. No. 64, 2015 SCC 64. I agree with Beard J.A. that Palmer should be applied in order to prevent a miscarriage of justice in sentence appeals, "even though, clearly, sentence appeals do not raise issues of innocence at stake or the risk of a wrongful conviction": R. v. Catcheway, [2019] M.J. No. 180, 2019 MBCA 75, at para. 42.

[39] At the first step of [the] Palmer test, Mr. Rajmoolie must demonstrate that he showed due diligence in bringing the evidence before the sentencing judge. Unfortunately, neither he nor duty counsel explained why he did not provide copies of his letters to the Ombudsman to the sentencing judge.

[40] However, the due diligence requirement is no barrier to the admission of the fresh evidence in this case. The Supreme Court has repeatedly stated that the due diligence requirement "is not an essential requirement of the fresh evidence test, particularly in criminal cases" and that this "criterion must yield where its rigid application might lead to a miscarriage of justice": R. v. B. (G.D.), [2000] 1 S.C.R. 520, [2000] S.C.J. No. 22, 2000 SCC 22, at para. 19, citing R. v. M. (P.S.), 1992 2785 (ON CA), [1992] O.J. No. 2410, 77 C.C.C. (3d) 402 (C.A.), per Doherty J.A. The failure to meet the due diligence criterion should not "override accomplishing a just result": [page73] R. v. Warsing, 1998 775 (SCC), [1998] 3 S.C.R. 579, [1998] S.C.J. No. 91, at para. 56, citing R. v. C. (R.), 1989 7204 (ON CA), [1989] O.J. No. 115, 47 C.C.C. (3d) 84 (C.A.), at p. 87 C.C.C., per Carthy J.A. The Supreme Court confirmed this flexible approach in R. v. Hay, [2013] 3 S.C.R. 694, [2013] S.C.J. No. 61, 2013 SCC 61, at para. 64.

[41] At the second Palmer step, the fresh evidence must be relevant and bear upon a decisive issue. Mr. Rajmoolie's calls and letters to the Ombudsman show his repeated attempts to gain access to fresh air, which is at the heart of his claim for Duncan credits.

[42] At the third step, the fresh evidence must be reasonably capable of belief. As I noted earlier, it was self-evident that a person in Mr. Rajmoolie's physical condition could not access the yard without assistance. He expressed his needs persistently over an extended period of time. His four telephone calls and three letters to the Ombudsman are consistent with his testimony that he suffered hardship as a result of his unaccommodated injury. The letters could only have been intended to ameliorate the conditions of his incarceration because the Ombudsman is not empowered to take any action that would affect the length of Mr. Rajmoolie's sentence.

[43] The fourth Palmer step is also made out because the telephone calls and letters to the Ombudsman could reasonably have been expected to have changed the outcome of Mr. Rajmoolie's request for Duncan credit at his sentencing. I say this for two reasons. First, the sentencing judge heard evidence that Mr. Rajmoolie had written letters to the Ombudsman, but she expressed doubt, noting that "No letter was produced during this hearing": at para. 37. She did not believe Mr. Rajmoolie and the absence of the letters contributed to her disbelief. Their production would have bolstered his credibility.

[44] Second, the letters qualify Sgt. Lawson's evidence. In order to write the letters, the evidence establishes that Mr. Rajmoolie would have been required to ask staff of the Toronto East Detention Centre for the Ombudsman's blue letter forms at least three times. Faced with the evidence of three letters to the Ombudsman, the sentencing judge might not have assigned the same weight to Sgt. Lawson's testimony: R. v. Lacasse, [2015] 3 S.C.R. 1089, [2015] S.C.J. No. 64, 2015 SCC 64, at para. 120. She doubted Mr. Rajmoolie's assertion that he had complained to the Ombudsman, but the fresh evidence demonstrates that he was telling the truth.

[45] An additional factor in my thinking is the notoriety of problems originating in the Toronto East Detention Centre, which has been the object of sustained judicial criticism in recent years. The Centre experiences frequent lockdowns due to staffing shortages: [page74] R. v. Steckley, [2020] O.J. No. 2992, 2020 ONSC 3410 (S.C.J.), at para. 39; R. v. Douale, [2018] O.J. No. 3141, 2018 ONSC 3658 (S.C.J.); R. v. D. (M.C.), [2017] O.J. No. 3081, 2017 ONSC 3174 (S.C.J.); R. v. Inniss, [2017] O.J. No. 2420, 2017 ONSC 2779 (S.C.J.). During lockdowns, inmates experience limited access to telephones, showers and other basic services. The fact that these lockdowns are often caused by staffing shortages and labour disruptions and not by legitimate safety concerns is deeply worrisome. I agree that [at para. 20]: "we should not simply normalize unacceptable conditions in a jail": R. v. Jama, [2018] O.J. No. 1130, 2018 ONSC 1252 (S.C.J.), per Goldstein J.

[46] This bears on the most pertinent problem in this appeal, which is the Toronto East Detention Centre's chronic inability to provide prisoners with adequate access to fresh air in the yard. In Steckley, Mr. Steckley was offered 20 minutes of yard time on only 214 days out of a 540-day incarceration, which Kelly J. noted was roughly 39.7 per cent of his time there: at para. 39. In Douale, Mr. Douale was offered fresh air on only 31 per cent of the 574 days he spent in pre-sentence custody: at para. 47. In R. v. Hudson, [2019] O.J. No. 4731, 2019 ONCJ 608, Mr. Hudson did not go outside on 300 out of 459 days: at para. 43.

[47] In R. v. Inniss, Mr. Inniss was offered fresh air only 59 times in 218 days, prompting Forestell J. to invoke the United Nations Standard Minimum Rules for the Treatment of Prisoners, which provides that every prisoner should receive at least one hour daily of open-air exercise. She was withering in her assessment: "It is shocking that detention centres in Toronto in 2017 are consistently failing to meet minimum standards established by the United Nations in the 1950s": at para. 38.

[48] I agree.

[49] I conclude that the inhumane conditions in which Mr. Rajmoolie mouldered for so many months in the Toronto East Detention Centre do warrant additional Duncan credit, to which I now turn.

C. The Duncan Credit

[50] Duncan was a brief oral judgment that was later transcribed into what would then have been called an "endorsement".[^1] To repeat for convenience, at para. 6 the court held that [page75] "in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1)" of the Criminal Code. To attract enhanced credit on this ground, "the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused". In Duncan, the adverse conditions related to "lockdown" conditions during the appellant's pre-sentence incarceration were due to staffing issues in the institution. Despite holding out the prospect, the Duncan court declined to give additional credit because there was "no evidence of any adverse effect on the appellant".

(1) The context for the Duncan credit

[51] The Truth in Sentencing Act, S.C. 2009, c. 29, capped the maximum sentencing credit at 1.5:1. Before that legislation came into force, sentencing judges had developed a practice of awarding 2:1 (sometimes up to 4:1) credit for pre-sentence custody: R. v. Wust, [2000] 1 S.C.R. 455, [2000] S.C.J. No. 19, 2000 SCC 18 and R. v. Rezaie (1996), 1996 1241 (ON CA), 31 O.R. (3d) 713, [1996] O.J. No. 4468, 112 C.C.C. (3d) 97 (C.A.). In Rezaie, Laskin J.A. explained [at para. 25]:

. . . in two respects, pre-trial custody is even more onerous than post-sentencing custody. First, other than for a sentence of life imprisonment, legislative provisions for parole eligibility and statutory release do not take into account time spent in custody before trial (or before sentencing). Second, local detention centres ordinarily do not provide educational, retraining or rehabilitation programs to an accused in custody waiting trial.

[52] The Supreme Court considered the effect of the Truth in Sentencing Act in R. v. Summers (2014), 130 O.R. (3d) 80, [2014] 1 S.C.R. 575, [2014] S.C.J. No. 26, 2014 SCC 26. Justice Karakatsanis divided the basis for enhanced credit into two notional categories: the "quantitative" and the "qualitative". The "quantitative" rests on the fact that without pre-sentence credit, an offender who does not get bail would serve a longer sentence for the same offence than one who gets bail. The "qualitative" element reflects the fact that detention centres do not provide any kind of rehabilitative programming making the experience of incarceration more difficult for people who are to be presumed innocent: at paras. 23-28.

[53] The Supreme Court noted that "[b]ecause a sentence begins when it is imposed (s. 719(1)) and the statutory rules for parole eligibility and early release do not take into account time spent in custody before sentencing, pre-sentencing detention almost always needs to be credited a rate higher than 1:1 in order to ensure that it does not prejudice the offender." The practice of [page76] awarding 1.5:1 or 2:1 had generally solved this problem. The credit meant that an offender with pre-sentence detention would reach parole eligibility at the same point in his or her incarceration as an offender without pre-sentence detention: See Summers, at para. 26.

[54] The Truth in Sentencing Act amended s. 719(3) and added s. 719(3.1) to the Criminal Code in 2009. These provisions now read (changes underlined):

719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody.

(Emphasis added)

[55] Under s. 719(3.1), the credit of 1:1 became the prescribed norm. The maximum credit, where "the circumstances justify it" was stipulated as "one and one-half days for each day spent in custody". However, in Summers, at para. 34, Karakatsanis J. upheld Cronk J.A.'s interpretation of s. 719(3.1): an offender's lost eligibility for early release and parole constituted one of the "circumstances" that would justify credit at 1.5:1. This created what Karakatsanis J. recognized was an exception that would apply in virtually every case: the exception became the rule. Put a different way: the maximum credit became the standard credit.

(2) Proving eligibility for the Duncan credit

[56] A sentencing judge may exceed the standard Summers credit under Duncan. In order to obtain the Duncan credit, the offender is required to establish (1) the conditions of incarceration that justify the credit, and (2) the impact of those conditions on the accused: at para. 6. Courts start with the 1:1.5 credit authorized under s. 719(3.1) of the Criminal Code and Summers and then consider whether the case warrants additional time due to its extraordinary circumstances: R. v. Roberts, [2018] O.J. No. 4005, 2018 ONSC 4566 (S.C.J.), at para. 44.

[57] Courts have generally adopted the flexible approach set out in Summers, at para. 80: "when evaluating the qualitative rationale for granting enhanced credit, the onus is on the offender, but it will generally not be necessary to lead extensive evidence".

[58] In some cases, sentencing judges refer to the offender's handwritten notes or personal journal entries as evidence of the conditions of incarceration: R. v. Fermah, 2019 ONSC 3597, [2019] O.J. No. 3037, [page77] 2019 ONSC 3597 (S.C.J.), at paras. 38-41. There does not appear to be much concern in the case law that this evidence might be self-serving. It is generally recognized that detention centres do not accurately document lockdown days, and sentencing judges routinely accept the offender's informal tally over the Crown's: Fermah, at para. 41; R. v. Ward-Jackson, [2018] O.J. No. 163, 2018 ONSC 178 (S.C.J.), at para. 50; R. v. B. (J.), [2016] O.J. No. 855, 2016 ONSC 939 (S.C.J.), at paras. 20-21. Sentencing judges will sometimes refer to comparator cases in order to resolve discrepancies between offender and Crown evidence: Fermah, at para. 40. However, in some cases sentencing judges have required more convincing proof of the conditions said to be harsh: R. v. Callaghan, [2017] O.J. No. 1519, 2017 ONSC 1853 (S.C.J.), at para. 124.

[59] Courts have also taken a flexible approach to the determination of the impact on the offender, relying on the offender's testimony or affidavit: R. v. Sanchez, [2019] O.J. No. 4657, 2019 ONSC 5272 (S.C.J.), at para. 52; Fermah, at para. 42. Expert reports and medical diagnoses appear to be rare.

[60] Courts routinely take judicial notice of the negative effects of close confinement and segregation, in some cases relying on reports of the Ontario Ombudsman, the United Nations, humanitarian organizations, or academic commentators in order to ground their findings: R. v. Charley, [2019] O.J. No. 5727, 2019 ONSC 6490 (S.C.J.); R. v. Chan, [2019] O.J. No. 1341, 2019 ONSC 1400 (S.C.J.), at paras. 84-85; R. v. Roberts, supra, at paras. 31-32; R. v. Burton, [2018] O.J. No. 1250, 2018 ONCJ 153, at para. 96; Canadian Civil Liberties Assn. v. Canada (Attorney General) (2017), 140 O.R. (3d) 342, [2017] O.J. No. 6592, 2017 ONSC 7491 (S.C.J.).

[61] Despite the generous approach taken in most cases, some sentencing judges require more rigorous proof of the impact of the incarceration conditions on the accused before awarding Duncan credits: see, for example, R. v. Singh, [2018] O.J. No. 3292, 2018 ONSC 3850 (S.C.J.), at para. 112; R. v. Weir, [2018] O.J. No. 2475, 2018 ONSC 783 (S.C.J.), at para. 140; R. v. Callaghan, supra, at para. 124; R. v. Georgiev, [2017] O.J. No. 1508, 2017 ONSC 1265 (S.C.J.), at para. 47.

[62] I join with my colleague Miller J.A. in the view that it is time to develop the doctrine and to introduce some methodology.

(3) Determining the Duncan credit in practice

[63] In setting the Duncan credit, the consensus is that "[t]here is no mathematical formula that can be applied in these circumstances to conveniently calculate the appropriate credit for these [page78] types of harsh conditions of pre-sentence custody . . . [r]ather the specific nature of the appropriate credit is left to the discretion of the sentencing court": R. v. Tello, [2018] O.J. No. 2201, 2018 ONSC 2259 (S.C.J.), at para. 80; see also R. v. Clarke, [2020] O.J. No. 2991, 2020 ONSC 3878 (S.C.J.), at para. 39; R. v. Roberts, supra, at para. 45. Courts are reluctant to give an itemized account of the circumstances attracting Duncan credits (i.e., assigning credit to each material incident or factor), preferring to give a global Duncan credit that takes into account all of the relevant factors: Fermah, at para. 67.

[64] The resulting credit is frequently expressed as an enhanced ratio (2:1 or even 3:1, despite the ostensible conflict this creates with s. 719(3.1)) or a block of credited time.[^2] There is no functional or principled difference between the two approaches, which are effectively interchangeable. In Fermah, for example, Molloy J. wrote: "the cumulative effect of all these conditions is such that Mr. Fermah should not be required to serve any more time" and awarded a 3:1 credit in order to achieve that result: at para. 71.

[65] On appeal, this court has consistently acknowledged that trial judges are entitled to adopt a "broad brush" methodology: R. v. Kizir, [2018] O.J. No. 5127, 2018 ONCA 781, and has shown deference to sentencing judges in their approach to Duncan credits. However, the sentencing judge who ignores or summarily dismisses Duncan concerns commits a reversible error, as in R. v. Marong, [2020] O.J. No. 4006, 2020 ONCA 598. In R. v. Chumbley, [2020] O.J. No. 3130, 2020 ONCA 474, this court intervened in order to give Duncan credit to a transgender inmate who was denied access to rehabilitative programming due to her transgender identity and confined to her cell for 22 hours a day. In R. v. Fuentes, [2003] O.J. No. 2545, 2003 57438 (C.A.), this court had held, pre-Duncan, that the failure to provide a necessary surgery rendered the conditions of incarceration "extremely harsh" and reduced the sentence to time served.

(4) The doctrinal basis for the Duncan credit

[66] The doctrinal basis for the additional sentencing credit permitted by the Duncan panel is not clear, as Miller J.A., concurring, pointed out in R. v. Gregoire, 2018 ONCA 880, [2018] O.J. No. 5713, [page79] 2018 ONCA 880. And see R. v. Gordey, [2020] A.J. No. 867, 2020 ABQB 425, and R. v. Pangon, [2020] Nu.J. No. 39, 2020 NUCJ 30, at paras. 69-72.

[67] Miller J.A.'s concern was rooted in the effect of the Truth in Sentencing Act in amending s. 719(3) and adding s. 719(3.1), and the Supreme Court's interpretation of these amendments in Summers. Duncan did not address the key remaining question: given s. 719(3.1), on what basis could a sentencing judge surpass the legislated cap of one and one-half days for each day spent in pre-sentence custody?

[68] There appear to be two possible sources of authority for the Duncan credit. The first is in the general jurisdiction of a sentencing judge. The second is under s. 24(1) of the Canadian Charter of Rights and Freedoms, deriving either from s. 7 which relates to life, liberty and security of the person, or from s. 12 which relates to cruel and unusual punishment. I address each in turn.

(i) The general jurisdiction of a sentencing judge

[69] The first answer may simply be that "particularly harsh" conditions justify "mitigation". The word "mitigate" appears in Duncan. This would keep Duncan within the traditional vocabulary of sentencing, as noted by McKay J. in R. v. Linseman, [2019] O.J. No. 2464, 2019 ONCJ 304, at para. 47: "Mitigation of sentence for those who have suffered particularly harsh presentence incarceration is not dependent upon a finding of a constitutional violation." But it is not clear how a "mitigation" credit would get around the legislated cap in s. 719(3.1), especially when that credit is expressed in terms of an enhanced ratio, such as 3:1. Justice Gates wrestled with this question in Gordey, at paras. 63-66, and concluded that prison conditions that do not rise to cruel and unusual punishment should simply be given credit as mitigating factors. However, he acknowledged that this does not satisfactorily address the cap set out in s. 719(3.1).

[70] The unavoidable implication of the Truth in Sentencing Act in amending s. 719(3) and adding s. 719(3.1), and the decision in Summers, is that Parliament intended the legislation to remove from sentencing judges the discretionary jurisdiction to provide enhanced credit for pre-sentence incarceration conditions. This is the basis of the Supreme Court's decision in Summers.

(ii) The implicit role of the Charter

[71] The other more plausible source of a sentencing judge's discretion to surpass the legislated cap in a particular case is that Duncan tacitly implements a Charter remedy. [page80]

[72] In Summers, the Supreme Court noted that "individuals who have suffered particularly harsh treatment, such as assaults in detention, can often look to other remedies, including under s. 24(1) of the Charter": at para. 73 (emphasis added). The expression, "particularly harsh" appears in Duncan even though Summers was not cited. When particular conditions are so harsh and dehumanizing as to limit a prisoner's s. 7 (life, liberty and security of the person) or s. 12 (cruel and unusual punishment) Charter rights, as in this case, a remedy under s. 24(1) of the Charter in the form of additional credit for pre-sentence custody seems especially apt. Such a remedy aligns well with the conviction that offenders should not have to suffer such conditions in local detention.

[73] I therefore take the view that implicit in Duncan was an assertion that, where harsh and dehumanizing conditions warrant, a court could give additional credit for pre-sentence custody beyond the legislated cap of one and one-half days for each day spent in custody in the exercise of its authority under s. 24(1) of the Charter. I would do so in this case and would give Mr. Rajmoolie an additional four months credit.

Appeal dismissed.

Notes

[^1]: The decision is binding and jurisprudential despite its brevity, with the reservations noted by Juriansz J.A. in R. v. Singh (2014), 120 O.R. (3d) 76, [2014] O.J. No. 1858, 2014 ONCA 293, at para. 12 and by Osborne A.C.J.O. in R. v. Timminco Ltd. (2001), 2001 3494 (ON CA), 54 O.R. (3d) 21, [2001] O.J. No. 1443 (C.A.), at para. 36.

[^2]: In Fermah, Molloy J. noted that a 3:1 ratio had been applied in these cases: R. v. Smith, [2003] O.J. No. 1782 (C.J.) (a firearms case); R. v. Permesar, [2003] O.J. No. 5420 (C.J.) (a break and enter); R. v. Lowe, [2003] O.J. No. 2980 (S.C.J.).

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