Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220216 DOCKET: C69516

Miller, Trotter and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Bismark Barrett Appellant

Counsel: Bismark Barrett, acting in person Andrew Furgiuele, appearing as duty counsel David Morlog, for the respondent

Heard: February 8, 2022 by video conference

On appeal from the sentence imposed on October 29, 2020 by Justice Joseph A. De Filippis of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant pleaded guilty to possession of cocaine for the purpose of trafficking and was ultimately sentenced to incarceration for a period of 30 months.

[2] After the sentencing judge prepared his initial reasons for sentence, he agreed to receive supplementary submissions from the defence. On the supplementary submissions, the defence revised its initial position and sought a conditional sentence. The basis for seeking a conditional sentence was (1) this court’s judgment in R. v. Sharma, 2020 ONCA 48 (leave to appeal to the SCC granted 2021-01-14), which greatly expanded the court’s ability to impose conditional sentences, and (2) worsening developments in the Covid-19 pandemic, which the defence argued weighed heavily in favour of a conditional sentence. The trial Crown argued that the risk of contracting Covid-19 while incarcerated was not any higher than the risk of infection the appellant faced by residing in Toronto, and in any event that a conditional sentence was not appropriate.

[3] The sentencing judge received the submissions and issued his reasons for sentence. He provided his original reasons, prepared prior to hearing the supplementary submissions, with the supplementary reasons appended. The original reasons provided for a custodial sentence of 30 months. The supplementary reasons explained that he was not persuaded by the supplementary submissions to depart from the original sentence.

[4] On appeal, Mr. Furgiuele (acting as duty counsel), advanced the argument that although the sentencing judge did not accept the trial Crown’s questionable submissions on relative rates of risk, the sentencing judge nevertheless took an unduly narrow view of the impact of Covid on inmates. The sentencing judge’s focus, Mr. Furgiuele argued, ought not to have been restricted to the risk of infection faced by the appellant, and should have also included the negative impact of the measures that penal institutions were imposing to reduce the risk of Covid spread – particularly the widespread use of lockdowns and suspension of programs.

[5] Despite Mr. Furgiuele’s able submissions, we do not agree that the sentencing judge made any errors. The sentencing judge considered the submissions about the appellant’s risk from Covid-19 in the institutional setting and determined, that at that point in the pandemic, it did not justify a reduction in sentence below what he originally contemplated. It was within the discretion of the sentencing judge whether to reduce the appellant’s sentence to compensate for the deprivations that could be expected to result from the institution’s response to Covid-19. He chose not to do so. This was a discretionary decision, and we are not persuaded that there is any basis to interfere with it.

Disposition

[6] The appeal is dismissed.

“B.W. Miller J.A.”

“Gary Trotter J.A.”

“B. Zarnett J.A.”