Court of Appeal for Ontario

DATE: 20211231 DOCKET: C68581

Tulloch, Hourigan and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Adrian Green Appellant

Counsel: Adrian Green, acting in person Richard Litkowski, appearing as duty counsel Philippe Cowle, for the respondent

Heard: November 3, 2021 by video conference

On appeal from the sentence imposed on August 12, 2020 by Justice Myrna L. Lack of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] In February 2018, the appellant committed a series of offences for which he has been convicted, all of which are significantly more serious than his previous criminal record.

[2] The underlying facts of these offences included the appellant driving at a high rate of speed through a residential area so dangerously that he knocked down a stop sign and crashed into a fence. He then fled the scene to escape the police. Once apprehended, the car was searched, and he was found to be in possession of an illegal loaded firearm with an oversized magazine capable of holding 12 rounds of ammunition, with 11 rounds of ammunition loaded. The appellant was also found to be in possession of large quantities of illicit drugs, which included cocaine, both in powder form as well as crack cocaine, and a mixture of heroin and fentanyl.

[3] The appellant pleaded not guilty but was found guilty after an 18-day trial.

[4] At sentencing, the Crown sought a global sentence of 10 to 12 years, less pre-sentence custody. The defence sought a sentence in the range of 7 to 8 years, less pre-sentence custody on an enhanced 2 to 1 basis, as well as Duncan credit to factor in the harsh pre-trial custodial conditions, including a significant amount of time spent under lockdown.

[5] The sentencing judge imposed a global sentence of 10 years, less pre-sentence custody of 918 days, on an enhanced rate of 1.5 to 1, or the equivalent of 46 months for a net sentence of 6 years and 2 months of incarceration.

[6] The sentence was broken down as follows: four years’ custody for the firearm-related offences; four years of custody for the drug offences, to be served consecutively with the firearm-related offences; followed by six months of custody for the driving offences, to be served consecutively; and one year of custody for each of the possession of firearm while prohibited charges, to be served consecutively to the other offences, but concurrent to each other.

[7] The appellant, through the assistance of Mr. Litkowski acting as duty counsel, raises three grounds of appeal:

a. The sentencing judge erred in principle by failing to apply the jump principle;

b. The sentencing judge failed to apply the Duncan credit principle; and

c. The sentencing judge erred in principle by failing to consider the appellant’s personal circumstances, and more specifically did not address the systemic issues which may have impacted his moral blameworthiness, pursuant to this court’s recent decision in R. v. Morris, 2021 ONCA 680.

Did The Sentencing Judge Err in Principle by Failing to Apply the Jump Principle?

[8] At the outset of the imposition of sentence, the sentencing judge noted that the defence had raised the jump principle in support of their position on sentencing, and she quoted from the case of R. v. Borde (2003), 63 O.R. (3d) 417, at para. 39:

This principle cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent the past. It has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.

[9] She also cited this court’s decision in R. v. Courtney, 2012 ONCA 478, in which the court found that where an offender’s crimes were fundamentally different in kind and seriousness than the crimes for which they were previously sentenced, the jump principle is not engaged. Accordingly, in the appellant’s case, because the offences for which he was being sentenced were significantly more serious than his previous offences, the jump principle was not engaged.

[10] We agree with the sentencing judge’s assessment.

[11] The jump principle stands for the proposition that a subsequent sentence imposed on an offender should not be disproportionate to sentences imposed for prior offences, provided the subsequent offence is not significantly more serious than the prior offence. Essentially, a subsequent sentence for an offence should have an incremental increase proportionate to the frequency of the repeated offence: R. v. White, 2007 NLCA 44, 270 Nfld & P.E.I.R. 351. The application of this principle is contextual to the level of seriousness of the subsequent offences.

[12] As noted by Rosenberg J.A. in Borde, at para. 39, the jump principle “has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness”. The same is true when dealing with multiple convictions for an offender with a lengthy criminal record, or where previous sanctions have been ineffective in deterring the offender.

[13] This is the case with the appellant. He has a significantly long criminal record, and the subject offences are significantly more serious than his prior offences. In addition, from his antecedents, it is obvious that previous lenient sentences have not affected his conduct or served to deter his subsequent behaviour. We also agree with the Crown’s submissions that, taken together, the current offences for which the appellant was sentenced and that are the subject of this appeal eclipse the appellant’s prior criminal record as observed in Courtney, where the court stated, at para. 10:

The appellant’s crimes are fundamentally different in kind and seriousness than the crimes for which he was previously sentenced. Accordingly, the rationale for the jump principle – that successive sentences should be increased gradually – is simply not engaged.

[14] For all these reasons, we would not give effect to the appellant’s arguments on this ground of appeal.

Did the Sentencing judge Err in Failing to Apply the Duncan Credit Principle?

[15] The second argument raised by the appellant is that the sentencing judge erred in principle by failing to give effect to the Duncan credit principle. The appellant submits that his time in custody was exacerbated by the impact of COVID-19 lockdowns and the resulting inability to communicate with his family and receive family support. This resulted in the appellant suffering from post traumatic stress disorder and depression. In addition, according to the appellant, he was unable to secure medical treatment. He further submits that the sentencing judge was obliged to take these factors into consideration, and to give him additional enhanced credit.

[16] While we agree that the sentencing judge was obliged to consider the harshness of the appellant’s pre-sentence custodial conditions, she was also obliged to weigh the evidence she heard on the issue and determine what weight, if any, she should place on such evidence. In our view, she did exactly that and decided not to place much weight on the appellant’s evidence on his pre-sentence custody.

[17] Duncan credit is a mitigating factor that a sentencing judge can consider in arriving at an appropriate sentence. As this court recently stated in the case of R. v. Marshall, 2021 ONCA 344, at paras. 52-53:

[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. Arguably, that is what happened in this case, where on the sentencing judge’s calculations, the “Duncan” credit devoured three-quarters of what the sentencing judge had deemed to be the appropriate sentence but for pretrial custody. [Citation omitted.]

[18] The sentencing judge considered all the relevant factors on sentencing, including the mitigating and aggravating factors. She specifically noted that the appellant filed an affidavit and gave viva voce evidence at his sentencing hearing on the harshness of the pre-sentence incarceration and its impact on him. She also reviewed his extensive medical record and noted contradictions in his evidence. In particular, the appellant gave evidence about the extent and impact of the lockdowns on him, and his evidence was rejected. It was open to the sentencing judge to reject his evidence, and having rejected his evidence it was also open to the sentencing judge to determine whether she would treat the lockdown period of the pre-sentence custody as a mitigating factor.

[19] In the end, she was not satisfied that the appellant’s pre-sentence incarceration, including his time spent in lockdown, warranted being treated as mitigating on his sentence, and therefore did not justify a further enhanced pre-sentence credit beyond the 1.5 to 1 basis. Her exercise of discretion is entitled to deference. We see no basis to interfere.

Did the Sentencing Judge Err by Failing to Consider the Appellant’s Personal Circumstances?

[20] Finally, the appellant argues that the sentencing judge failed to consider the personal circumstances of the appellant, and more specifically the principles outlined in this court’s recent guidance in Morris. We do not agree.

[21] A complete reading of the sentencing decision reveals that the sentencing judge took into consideration the personal circumstances of the appellant, both as outlined in his pre-sentence report, as well as his viva voce evidence given at the sentencing hearing. The sentencing judge specifically recited a significant amount of the appellant’s personal history and circumstances under the heading, “Pre-Sentence Report.” It is true that she did not specifically reference his racial background and/or the impact of either systemic or specific racial discrimination, and how this might factor into his moral blameworthiness; however, this issue was never raised at his sentencing hearing, nor was any evidence adduced on the issue. Furthermore, the sentencing judge did not have the benefit of the Morris decision at the time of sentencing. We would not give effect to this ground of appeal.

Disposition

[22] We are satisfied that the ultimate global sentence imposed in this case was appropriate in the circumstances, considering the seriousness of the offences, and the appellant’s antecedents. The sentence imposed was a fit one, and we see no error in principle that warrants appellate intervention.

[23] Accordingly, leave to appeal sentence is granted, but the sentence appeal is dismissed.

“M. Tulloch J.A.”

“C.W. Hourigan J.A.”

“Harvison Young J.A.”