Court of Appeal for Ontario

Date: 2021-05-21 Docket: C68340 & C68526

Doherty, Zarnett and Coroza JJ.A.

Between

C68340 Her Majesty the Queen Appellant

and

Justice Marshall Respondent

Between

C68526 Her Majesty the Queen Appellant

and

Justice Marshall Respondent

Counsel: Samuel Greene, for the appellant, Her Majesty the Queen Paul Calarco, for the respondent, Justice Marshall

Heard: January 5, 2021 by video conference

Applications for leave to appeal and, if leave is granted, appeals from the sentences imposed by Justice D. Moore of the Ontario Court of Justice on April 22, 2020 (C68340), and the sentence imposed by Justice M. Wong of the Ontario Court of Justice on July 2, 2020 (C68526).

Doherty J.A.:

I Overview

[1] The Crown seeks leave to appeal from two sentences imposed on the respondent, Mr. Marshall. The Crown claims Mr. Marshall received too much credit for pretrial custody in the first sentencing proceeding and that error led to the imposition of an inappropriate sentence at the second sentencing proceeding. Counsel for Mr. Marshall contends the Crown has no appeal from the first sentence imposed and that, in any event, both sentences were fit and should not be varied.

[2] The ultimate issue presented on the appeals is straightforward, and both counsel have clearly articulated their positions. Unfortunately, one must slog through a blizzard of numbers and calculations to properly understand the arguments and determine the fitness of the sentences.

[3] Justice Marshall was arrested on April 15, 2019 and charged with firearms related offences. He was detained in custody. On May 2, 2019, while in custody, he was charged with failing to remain at the scene of an accident, causing bodily harm, contrary to s. 320.16(2) of the Criminal Code. He remained in custody.

[4] By April 22, 2020, Mr. Marshall had been in custody pending trial on various matters for slightly over a year. On that day, he pled guilty to the fail to remain charge and received a suspended sentence, followed by probation for two years. He remained in custody on the firearms charges.

[5] About three months later, on July 17, 2020, Mr. Marshall pled guilty to firearms charges. He received a suspended sentence with probation for three years. He remained in custody on other outstanding charges.

[6] On December 8, 2020, Mr. Marshall pled guilty to his remaining charges and received a further suspended sentence with probation. He was released from custody and, as of the hearing of these appeals, remained at large on the terms of the various probation orders.

[7] The Crown seeks leave to appeal the sentences imposed on the fail to remain charge (Marshall #1) and the firearms charges (Marshall #2). There is no appeal from the sentence imposed on the third set of charges on December 8, 2020.

[8] The Crown’s arguments target alleged errors made in Marshall #1. However, the Crown does not seek to vary the suspended sentence imposed in that proceeding. Instead, the Crown argues the errors made in Marshall #1 impacted on the sentence imposed in Marshall #2. The Crown asked the court to vary the sentence imposed in Marshall #2 from a suspended sentence to a sentence of 222 days incarceration, followed by probation.

[9] For the reasons that follow, I would grant leave to appeal in Marshall #1. I would allow the appeal, but only to the extent of varying the credit for pretrial custody. I would grant leave to appeal in Marshall #2 and I would dismiss the appeal.

II The Sentencing on the Fail to Remain Charges (Marshall #1)

[10] The appellant pled guilty to failing to remain on April 22, 2020. He was sentenced on the same day. Mr. Marshall had been in custody for 357 days on that charge (May 2, 2019 – April 22, 2020). He had been in custody for a total of 373 days (April 15, 2019 – April 22, 2020). The Crown and defence agreed the time Mr. Marshall had spent in pretrial custody exceeded the jail sentence he should receive on the fail to remain charge and Mr. Marshall should receive a suspended sentence with probation on that charge. Counsel disagreed over how much of Mr. Marshall’s pretrial custody should be taken into account in determining his sentence on the fail to remain charge.

[11] The Crown and defence also agreed on the methodology to be used in calculating Mr. Marshall’s sentence. The Crown argued the trial judge should start with the sentence he would have imposed but for Mr. Marshall’s pretrial custody. The Crown submitted a sentence of 12 months (365 days) would have been appropriate. The Crown argued the trial judge should deduct from that 12 months, an amount attributable to the severe conditions endured by Mr. Marshall in pretrial custody. The Crown and defence agreed that, in light of the many lockdowns and the very difficult conditions in the institution after the arrival of COVID-19 in March 2020, Mr. Marshall should receive enhanced credit for pretrial custody of 85 days. This enhanced credit is sometimes referred to as a “Duncan” credit: R. v. Duncan, 2016 ONCA 754.

[12] The Crown submitted that a deduction of the 85-day “Duncan” credit from the 12-month sentence (365 days) left a sentence of 280 days (365 - 85). The Crown agreed that the “Summers” credit, provided for by s. 719(3.1) of the Criminal Code, should be applied to give Mr. Marshall 1.5 days credit for each day in pretrial custody: R. v. Summers, 2014 SCC 26. On that arithmetic, 187 days of pretrial custody was the equivalent of a 280-day sentence (187 x 1.5 = 280), leaving 186 days of Mr. Marshall’s pretrial custody unattributed (373 - 187).

[13] The defence started its calculation on the basis that a fit sentence, but for pretrial custody, was five months (154 days). The defence then deducted the agreed upon “Duncan” credit, leaving 69 days to be served (154 - 85). Applying the 1.5:1 ratio from Summers, 46 days of pretrial custody would be used up to account for the 69 days remaining (46 x 1.5), leaving 327 days of pretrial custody unattributed (373 - 46).

[14] On the positions advanced by both the Crown and defence, Mr. Marshall would receive a suspended sentence with probation. On the Crown’s position, he would have 186 days of his pretrial custody left to be applied to any subsequent sentence. On the defence position, Mr. Marshall would have 327 days left to be applied to any subsequent sentence, a difference of 141 days.

[15] The trial judge concluded, but for Mr. Marshall’s presentence custody, he would have imposed a sentence of eight months. The trial judge referred to several mitigating factors, including Mr. Marshall’s age, the strong Gladue considerations, the severe post-COVID-19 jail conditions, and the significance of Mr. Marshall’s guilty plea. He also referred to aggravating factors, including Mr. Marshall’s prior related record.

[16] The trial judge proceeded to blend considerations relevant to the “Duncan” credit and the “Summers” credit and concluded 39 days of Mr. Marshall’s pretrial custody should be treated as the equivalent of the 8-month sentence the trial judge would have imposed. The trial judge did not specifically quantify the “Duncan” credit. However, a “Summers” credit for 39 days pretrial custody equals 59 days. The “Duncan” credit accounted for the remaining six months of the eight-month sentence the trial judge considered to be the appropriate sentence but for pretrial custody.

[17] The trial judge identified the specific 39 days he was taking into account in imposing the sentence, as the days between March 14, 2020, when the effect of COVID-19 was first felt in the jails, and April 22, 2020 when Mr. Marshall was sentenced on the fail to remain charge. The deduction of 39 days from the total pretrial custody left 334 days unaccounted for (373 - 39). This was 148 days more than the Crown had suggested and 7 days more than the defence had suggested.

[18] The trial judge proceeded to impose a suspended sentence with two years’ probation. As required by s. 719(3.3), he noted on the information that Mr. Marshall had been credited on his sentence with 59 days for 39 days presentence custody.

III The Sentencing on the Firearms Charges (Marshall #2)

[19] On July 17, 2020, three months after he was sentenced on the fail to remain charge, Mr. Marshall pled guilty to two charges involving possession of a sawed off semi-automatic shotgun, and two charges involving the possession and unsafe storage of ammunition. The ammunition could not be used in the shotgun. Mr. Marshall was under a weapons prohibition order when he was found in possession of the shotgun.

[20] The Crown submitted, but for pretrial custody considerations, sentences totalling two years (730 days) would be appropriate in the circumstances. The Crown submitted, in normal circumstances, the seriousness of the offences would require a lengthier jail term. However, the Crown pointed to several mitigating factors, emphasizing the importance of Mr. Marshall’s guilty plea, which avoided a lengthy trial. The Crown acknowledged that a lengthy trial would severely tax the available court resources as the system struggled to cope with the impact of COVID-19.

[21] At the time of the sentencing on the firearms charges, Mr. Marshall had been in custody on those charges for 459 days (April 15, 2019 – July 17, 2020). Of the 459 days, 39 had been attributed to the sentence imposed on the fail to remain charge in Marshall #1, leaving 420 days pretrial custody unaccounted for. The Crown submitted Mr. Marshall was entitled to a “Summers” credit on the 420 days. Applying the 1.5:1 ratio, the “Summers” credit amounted to 630 days (420 x 1.5). Deducting 630 days from a two-year sentence left 100 days to be served by Mr. Marshall (730 - 630). The Crown argued there should be no “Duncan” credit and Mr. Marshall should receive a sentence of 100 days.

[22] Defence counsel agreed, that setting aside the pretrial custody, a two-year sentence would be appropriate. Counsel also agreed with the Crown’s calculations, but argued, that in all the circumstances, Mr. Marshall should not be required to serve any additional time on the firearms charges. Counsel emphasized the negative impact of COVID-19, not only on the conditions in the jail but on the health risks posed to the prisoners. Counsel submitted a suspended sentence with probation was the appropriate disposition.

[23] The trial judge accepted the defence position. She referred to several mitigating factors, including the impact on Mr. Marshall of the conditions in the jail due to COVID-19. The trial judge imposed a suspended sentence with three years’ probation. It does not appear she noted the amount of time credited for presentence custody on the information.

[24] The trial judge’s reasons for sentence are brief, as were counsel’s submissions. It is clear, however, from the transcript, the trial judge and counsel had conducted several judicial pre-trials over many months, aimed at resolving the charges. Through their efforts, the determination of the appropriate sentence had come down to a single question. Should Mr. Marshall be required to serve any additional imprisonment on account of the firearms charges?

[25] The trial judge’s comments during sentencing make it clear she had told the parties during the pre-trials she was inclined to give considerable credit for guilty pleas, given the importance of guilty pleas to a criminal justice system struggling to adapt to the unique and very difficult circumstances presented in the early days of the pandemic. The trial judge did exactly what she told counsel she was inclined to do.

IV The Appeal in Marshall #1

[26] Mr. Calarco, counsel for Mr. Marshall, raises a preliminary point on the appeal in Marshall #1. He submits, that s. 676(1)(a) of the Criminal Code allows the Crown to seek leave to appeal from the “sentence passed” by the trial judge and s. 687(1)(a) empowers this court to either vary the sentence passed or dismiss the appeal. Mr. Calarco contends the Crown does not appeal the sentence passed by the trial judge and does not seek any variation in that sentence. The Crown agrees now, as it did at trial, that a suspended sentence with probation is the proper sentence. Counsel submits the Crown does not challenge the fitness of the sentence imposed, but instead alleges errors in the trial judge’s analysis leading to the imposition of what Crown counsel concedes was a fit sentence.

[27] Counsel for Mr. Marshall argues, the trial judge must consider many factors when fixing a sentence, including, in some cases, the credit to be given for pretrial custody. Although pretrial custody is relevant to fixing an appropriate sentence, it is not part of the sentence: R. v. Mathieu, 2008 SCC 21, [2008] 1 S.C.R. 723, at para. 17. Counsel further contends the Crown is only entitled on a sentence appeal to challenge the fitness of the sentence imposed. If there is no quarrel with the fitness, there is no appeal from the analysis used to arrive at the sentence. In advancing this position, counsel relies on the well recognized principle that appeals are taken from orders and judgments, and not from the reasoning underlying orders and judgments.

[28] Mr. Greene, for the Crown, acknowledges he does not ask the court to vary the suspended sentence imposed in Marshall #1. As he wrote in his factum, he asks this court “to correct the significant legal errors in the sentencing judge’s analysis”.

[29] Mr. Greene argues, that for appeal purposes, a sentence may encompass more than simply the ultimate disposition. Just as pretrial custody is considered part of the punishment imposed for sentencing purposes, the quantification of credit for pretrial custody should be regarded as part of the sentence for appeal purposes: R. v. Wust, 2000 SCC 18; R. v. McDonald (1998), 40 O.R. (3d) 641 (Ont. C.A.).

[30] Support for the Crown’s position can be found in s. 719(3.3.). That section requires the sentencing judge to specifically state in the record, and on the warrant of committal, the following:

• the amount of time spent in custody;
• the term of imprisonment that would have been imposed before any credit was granted;
• the amount of time credited, if any; and
• the sentence imposed.

[31] Section 719(3.3) requires trial judges to formally record the component parts of the sentencing calculation leading to the ultimate sentence imposed when pretrial custody is taken into account in determining the ultimate sentence. A failure to comply with s. 719(3.3), while not vitiating the sentence imposed, is an error in principle opening the door to appellate review for the purpose of “adjusting the credit for time spent on remand”. It seems logical that Parliament has required that the information specified in s. 719(3.3) be part of the formal record, so that it will be available for appellate review: R. v. Murphy, 2015 NSCA 14, at 25.

[32] Counsel for Mr. Marshall relies on R. v. Mizen, 2009 BCCA 253. Mizen is directly on point and supports Mr. Marshall’s position that the Crown has no right of appeal in Marshall #1. In Mizen, the accused did not seek a variation of the ultimate sentence imposed, but asked the court to reduce the 33 ½ months recorded on the information as credit for pretrial custody. He argued a credit of 33 ½ months significantly overstated the seriousness of the offence and could work to his disadvantage in any subsequent sentencing proceeding.

[33] The court in Mizen decided it had no jurisdiction to adjust credit for pretrial custody when there was no request to vary the actual sentence imposed: Mizen, at paras. 9-10. In reaching that conclusion, the court relied heavily on s. 719(1), which provides a sentence begins when it is imposed: Mizen, at para. 16. In holding there could be no appeal from the credit given for pretrial custody, the court accepted that the absence of an appeal could work an unfairness in some circumstances: Mizen, at para. 24.

[34] Mizen preceded the enactment of s. 719(3.3). Indeed, the court in Mizen emphasized the sentencing judge had no authority under the Criminal Code, as it stood, to record pretrial custody as part of the sentence imposed: Mizen, at paras. 20, 26. After the enactment of s. 719(3.3), the trial judge is required to record pretrial custody when describing the sentence imposed.

[35] In my view, s. 719(3.3), not only ensures correctional authorities and subsequent sentencing judges have a full picture of the sentence imposed in an earlier proceeding, it allows an appellate court the same advantage when reviewing a sentence on appeal. In my view, on a sentence appeal, this court is entitled to consider, and if necessary vary, any of the information which s. 719(3.3) requires included as part of the formal record of the sentence imposed.

[36] In recognizing that the appeal court may vary the information recorded by virtue of s. 719(3.3) and not vary the actual sentence imposed, I do not suggest that appeals which do not challenge the ultimate sentence imposed will be common. In the vast majority of cases, arguments in respect of pretrial custody calculations will be advanced to show how the trial judge ultimately came to impose an unfit sentence. However, as acknowledged in Mizen, there will be cases, both from the defence and Crown perspective, when a variation in credit for presentence custody that does not alter the ultimate sentence imposed is necessary in the interests of justice.

[37] In Marshall #1, the Crown asked the court to vary the sentence in two ways:

• direct that 12 months, and not 8 months, was the appropriate sentence before taking into account pretrial custody; and
• direct that credit for pretrial custody be varied from 39 days to 272 days (187 days for a “Summers” credit and 85 days for a “Duncan” credit).

[38] I would hold, the Crown can seek the variations set out above on a sentence appeal. I turn now to whether they should get them in this case.

V The Merits of the Appeal in Marshall #1

[39] I start with the trial judge’s determination, that but for the pretrial custody, a sentence of eight months would have been appropriate. The trial judge canvassed all of the relevant factors. While he perhaps gave more weight to some mitigating factors than would other trial judges, his assessment was not unreasonable. I would defer to his assessment and proceed on the basis that eight months would have been the appropriate sentence.

[40] I move next to the “Duncan” credit. With the encouragement of the trial judge, the Crown and defence were able to agree Mr. Marshall should receive a “Duncan” credit of 85 days. They agreed that credit should be deducted from what would have been an appropriate sentence but for the pretrial custody. Defence and Crown also agreed that Mr. Marshall would not be entitled to any further “Duncan” credit in any subsequent sentencing proceeding in respect of his incarceration between May 2, 2019 when he was arrested on the fail to remain charge and April 22, 2020 when he was sentenced on that charge.

[41] The Crown submits the trial judge erred in not accepting the joint submission as to the amount of the “Duncan” credit. Crown counsel equates the joint position with respect to the “Duncan” credit with a joint submission as to the ultimate sentence to be imposed. He argues the rationale in R. v. Anthony-Cook, 2016 SCC 43 applies to both situations.

[42] I need not decide whether R. v. Anthony-Cook had direct application. It is to everyone’s advantage if counsel reaches an agreement as to the amount of any “Duncan” credit. Doing so avoids adjournments in the sentencing process to compile the necessary information, and avoids lengthy evidentiary hearings, which will often yield results that are less than definitive.

[43] If counsel are able to agree on the “Duncan” credit, the trial judge should depart from that agreement, only after careful consideration and after giving counsel a full opportunity to address any concerns the trial judge might have. The trial judge should also provide reasons for departing from the figure agreed upon by counsel.

[44] The trial judge offered no specific reason for departing from the agreed upon “Duncan” credit, indicating only he had considered “all factors”. The agreed upon “Duncan” credit was a significant deduction, especially since Mr. Marshall had been in custody under COVID-19 conditions for only 30 days of his pretrial incarceration. The sentence to be imposed on Mr. Marshall also did not involve him serving any additional jail time. The trial judge should have explained why he chose to depart so significantly from the agreed upon “Duncan” credit.

[45] Crown counsel submits the trial judge’s overly generous “Duncan” credit is explained by his “double counting”. The Crown contends the trial judge gave Mr. Marshall credit for various mitigating factors when fixing eight months as the appropriate sentence, but for pretrial custody, and then took the same mitigating factors into account when giving Mr. Marshall a very substantial “Duncan” credit. Counsel points to the trial judge’s consideration of the Gladue factors as a prime example of the “double counting”.

[46] My review of the trial judge’s reasons supports the Crown’s submissions. The trial judge did address many of the same mitigating factors when fixing the appropriate sentence, but for pretrial custody, and when assessing the “Duncan” credit.

[47] There was no reason to depart from the “Duncan” credit agreed upon by counsel. It was a significant credit and amply recognized the factors which rendered Mr. Marshall’s pretrial custody particularly difficult.

[48] Had the trial judge applied the “Duncan” credit agreed upon by counsel, that credit would have reduced what the trial judge regarded as the appropriate sentence from 8 months (245 days) to 160 days (245 - 85). Applying the “Summers” credit for pretrial custody, a 160-day sentence would have consumed 107 days of pretrial custody (107 x 1.5).

[49] The trial judge concluded that 39 days of pretrial custody would account for the entire 8-month sentence he deemed appropriate. Had he accepted the agreement of counsel with respect to “Duncan” credit, as he should have, he would have concluded that 107 days of pretrial custody accounted for the 8-month sentence. I would vary the endorsement on the information to indicate Mr. Marshall was given credit for pretrial custody of 160 days, based on 107 days of actual pretrial custody.

[50] Before I move to Marshall #2, I propose to make some observations about the calculation of the “Duncan” credit. A “Duncan” credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind the 1.5:1 “Summers” credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody: Summers, at paras. 28-29. The “Duncan” credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a “Duncan” credit: R. v. Morgan, 2020 ONCA 279.

[51] It is also important to appreciate and maintain the clear distinction between the “Summers” credit and the “Duncan” credit. The “Summers” credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence. The “Summers” credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. The “Summers” credit is statutorily capped at 1.5:1. It is wrong to think of the “Summers” credit as a mitigating factor. It would be equally wrong to deny or limit the “Summers” credit because of some aggravating factor, such as the seriousness of the offence: R. v. Colt, 2015 BCCA 190.

[52] The “Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[53] Often times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk the “Duncan” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated in that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 187 O.A.C. 307 (C.A.). Arguably, that is what happened in this case, where on the trial judge’s calculations, the “Duncan” credit devoured three-quarters of what the trial judge had deemed to be the appropriate sentence but for pretrial custody.

VI The Merits of the Appeal in Marshall #2

[54] As outlined above, the trial judge in Marshall #2 decided Mr. Marshall should not be required to serve any additional time in jail on the firearms charges. To achieve that end, she gave Mr. Marshall credit for 100 days pretrial custody, above and beyond the “Summers” credit. The Crown submits the trial judge erred in doing so.

[55] The Crown further contends the trial judge’s error in Marshall #2 is magnified if this court agrees with the submission that the pretrial credit exhausted in Marshall #1 should have been considerably more than the 39 days allocated by the trial judge in Marshall #1.

[56] The trial judge in Marshall #2 was required to proceed on the basis that only 39 days of Mr. Marshall’s pretrial custody had been used up on the sentencing in Marshall #1. She was entitled to take into account the trial judge’s treatment of pretrial custody in Marshall #1 when deciding what, if any, additional “Duncan” credit should be given. That consideration was particularly apt, given the agreement in Marshall #1 that the “Duncan” credit would exhaust any entitlement to a further “Duncan” credit for the vast majority of Mr. Marshall’s pretrial custody.

[57] It was, however, not argued in Marshall #2 that the “Duncan” credit given in Marshall #1 should eliminate the possibility of a further “Duncan” credit. The “Duncan” credit given in Marshall #1 was not mentioned in the submissions in Marshall #2.

[58] As I read the record of the sentencing in Marshall #2, the exact amount of credit to be given Mr. Marshall for pretrial custody was not the trial judge’s primary consideration. In the unique circumstances of the case, the trial judge saw immense value to the maintenance of the effective operation of the criminal justice system flowing from Mr. Marshall’s willingness to plead guilty to serious charges. The trial judge was prepared to reflect that value in the sentence ultimately imposed.

[59] The transcripts of the sentencing proceedings in Marshall #1 and Marshall #2 show how difficult the conduct of even a simple proceeding had become in the criminal courts in the early summer of 2020 because of COVID-19. It is difficult to see how the system could have accommodated a lengthy trial.

[60] In the unique circumstances faced by the trial judge, she was entitled to give Mr. Marshall a substantial discount on his sentence following the guilty pleas. It was open to the trial judge to conclude the interests of justice would not be served by requiring Mr. Marshall to serve a further period of incarceration. Even if the pretrial custody attributable to the offence in Marshall #1 was increased from 39 to 107 days, I have no doubt the trial judge in Marshall #2 would still have concluded Mr. Marshall should not receive any further incarceration on the firearms charges.

[61] The trial judge, who sits in the Ontario Court of Justice on a daily basis, was in a far better position than this court to appreciate the situation in her court and to make an informed assessment of the weight she should give to Mr. Marshall’s guilty plea when sentencing him. The trial judge chose to impose, what was no doubt a lenient sentence. It was open to her to exercise her sentencing discretion in that manner. Hopefully, Mr. Marshall will take advantage of the leniency shown to him.

VII Conclusion

[62] I would grant leave to appeal in Marshall #1, allow the appeal and vary the credit for pretrial custody from 39 days to 107 days. I would not otherwise vary the sentence imposed.

[63] I would grant leave to appeal in Marshall #2, and dismiss the appeal.

Released: May 21, 2021

Doherty J.A.

I agree B. Zarnett J.A.

I agree Coroza J.A.