Court and Parties

Court of Appeal for Ontario Date: 2021-05-13 Docket: C68736

Before: Hoy, Hourigan and Zarnett JJ.A.

Between: Her Majesty the Queen, Respondent And: Raynard Bell, Appellant

Counsel: Raynard Bell, acting in person Richard Litkowksi, acting as duty counsel Nicole Rivers, for the respondent

Heard: May 6, 2021, by videoconference

On appeal from the sentence imposed by Justice Douglas K. Gray of the Superior Court of Justice on May 25, 2020.

Reasons for Decision

[1] After a guilty plea, the appellant was convicted of one count of human trafficking.

[2] The sentencing judge accepted the parties’ agreement that an appropriate base sentence would be five years. He applied a 1.5 multiplier to the appellant’s pre-sentence custody of 610 days, which amounted to a credit of 30.5 months. The sentencing judge then went on to consider two collateral consequences of the sentence.

[3] First, he reviewed the impact of the COVID-19 pandemic on the appellant. The defence sought a credit of approximately 30 days, which was based on a 0.5 day credit for each of the approximate 60 days of pre-sentence custody impacted by the pandemic. There was also reference in the submissions to the impact of COVID-19 going forward, but no specific submission that an additional credit should be granted to reflect the fact that the sentence would be served during the pandemic.

[4] The sentencing judge noted that there was no evidence of an outbreak of COVID-19 in any of the institutions where the appellant had been housed. He also observed that that the effect of the COVID-19 pandemic cannot result in an inappropriate sentence. The sentencing judge declined to give any credit for the impact of the pandemic.

[5] Second, the sentencing judge considered the lockdowns in the institutions where the appellant was housed and the effect of two in custody assaults on him. In so doing, the sentencing judge adverted to the appellant’s affidavit regarding the personal impact of the lockdowns and assaults.

[6] The sentencing judge rejected the Crown’s submission that the credit pursuant to R. v. Duncan, 2016 ONCA 754 should be in the four to six-month range. He also declined to accede to the defence's position that the credit should reduce the sentence to time served. He ultimately found that the appropriate Duncan credit for the conditions experienced by the appellant was nine months. Consequently, he sentenced the appellant to 20.5 months and made a series of ancillary orders.

[7] On appeal, the appellant submits that the sentence imposed was excessive. He argues that he should have been given credit for the impact of COVID-19 both during his pre-sentence custody and his time in custody after his sentencing.

[8] We are not persuaded that we should interfere with the sentence imposed. The sentencing judge accepted the base sentence proposed by the parties and gave the appellant credit at the usual rate for his pre-sentence custody. On the issue of Duncan credits, the sentencing judge carefully considered the arguments advanced by the appellant and applied a credit of nine months. In our view, this was a reasonable exercise of his discretion and is owed deference by this court: R. v. Ledinek, 2018 ONCA 1017, at para. 13.

[9] With regard to COVID-19, leaving aside that there was no specific request for a credit based on the fact that the sentence would be served during the pandemic, implicit in the sentencing judge’s conclusion regarding the Duncan credit was that any additional credit beyond nine months would render the sentence unfit. That was a conclusion that was available to the sentencing judge, and we agree with his statement that any credit for the pandemic cannot render the sentence unfit.

[10] In summary, we see no error in principle committed by the sentencing judge and the sentence is fit in the circumstances. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

"Alexandra Hoy J.A." "C.W. Hourigan J.A." "B. Zarnett J.A."