Court of Appeal for Ontario
Date: 20210908 Docket: C64759
Pardu, Paciocco and Nordheimer JJ.A.
Between
Her Majesty the Queen Respondent
and
Roger Bristol Appellant
Counsel: Andrew Menchynski, for the appellant Manasvin Goswami, for the respondent
Heard: September 1, 2021 by videoconference
On appeal from the sentences imposed on September 19, 2016 by Justice Marvin Zuker of the Ontario Court of Justice.
Reasons for Decision
[1] Mr. Bristol seeks leave to appeal the total sentence of ten years imposed on him following on his convictions on 32 counts of break and enter; 34 counts of failure to comply with probation, and two counts of attempted break and enter. For the following reasons, we grant leave to appeal and reduce the sentences to a total of seven years.
[2] The appellant pleaded guilty to committing a series of break and enters at residential homes in the City of Toronto over a two-month period in 2015. The appellant would generally gain access to the homes through unlocked doors or open windows. He would find valuables such as electronics and jewellery which he would then take and flee. The appellant said that he engaged in these activities in order to pay back drug dealers to whom he was indebted. There was no violence used in any of these break and enters and on the odd occasion when the appellant found that someone was in the home, he fled immediately.
[3] The appellant has an extensive criminal record reflecting similar offences dating back over 30 years. Prior to these offences, the longest sentence that the appellant had received was a period of incarceration of just over two years.
[4] The appellant was 44 years old at the time of his sentencing. He has a serious addiction to drugs. The appellant also suffers from schizophrenia and has severely limited intellectual abilities.
[5] In our view, the sentencing judge made a number of errors which impacted directly on the sentence that he imposed: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44, of which three are particularly serious. First, the sentencing judge referred, more than once, to the break and enters as “home invasion robberies”. They were not. In doing so, it is apparent that the sentencing judge placed the offences in a more serious category than they properly represented.
[6] Second, the sentencing judge erred in his treatment of the appellant’s mental health challenges and whether they impacted on the moral blameworthiness of his actions. The sentencing judge not only had a pre-sentence report, he also had a forensic report authored by two psychiatrists that detailed the appellant’s mental health issues. These issues date back to when the appellant was 12 years old. The psychiatrists gave evidence that the appellant was in the “retarded” range of intellectual functioning. The appellant’s challenges were exacerbated by his use of drugs.
[7] The sentencing judge failed to give proper weight to this evidence in evaluating the appellant’s moral blameworthiness. Indeed, at one point, the sentencing judge said that he was “not sure that there is any diminished moral responsibility” with respect to the appellant’s actions.
[8] Third, the sentencing judge failed to give proper effect to the “jump principle” in deciding on the appropriate sentence. While the sentencing judge referred to the principle in his reasons, he never actually addressed it. As earlier noted, prior to these offences, the longest sentence that had been imposed on the appellant was a period of incarceration of slightly more than two years. That sentence was imposed in 2006. An increase from two years to ten years, even given the number of offences involved, was excessive.
[9] Given these errors, it falls to this court to determine the appropriate sentence. In our view, a sentence of seven years, as suggested by the appellant, is an appropriate sentence given the factors we have mentioned and his guilty plea.
[10] In deciding on that sentence, we have taken into account one other factor. At the sentencing, the appellant’s trial counsel (not counsel on the appeal) had sought an adjournment to obtain records from the Toronto South Detention Centre regarding the number of lockdowns that had occurred while the appellant was incarcerated. The sentencing judge refused the adjournment of the basis that the appellant had had months to obtain the records and had failed to do so. That refusal was within the discretion of the sentencing judge. However, we now have those records which show that the appellant was in lockdowns for 257 days of his pre-sentence incarceration.
[11] We are entitled to look at these records since we are now charged with determining an appropriate sentence and, in doing so, we must consider whether a Duncan credit is appropriate. [1] While the respondent argues that the appellant did not lead any evidence of direct impact on him arising from the lockdowns, we are of the view that some impact is self-evident. Lockdowns involve lack of showers and loss of physical activity. They also mean that prisoners are restricted to their cells for long periods of time. Individual evidence is not required to establish those basic effects which go beyond the difficult and restrictive circumstances offenders often encounter during pretrial custody and which are accounted for by the Summers credit. [2]
[12] In deciding on seven years as the appropriate sentence we have included a Duncan credit for these periods of lockdown. As noted in R. v. Marshall, 2021 ONCA 344, at para. 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”.
[13] In the end result, we grant leave to appeal and reduce the global sentence from ten years to seven years.
“G. Pardu J.A.” “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.”
