Court of Appeal for Ontario

Date: 2023-12-14 Docket: C69582

Judges: Trotter, Thorburn and Sossin JJ.A.

Parties

BETWEEN His Majesty the King Respondent

and Wendel McLean Appellant

Counsel

For the appellant: Laura Remigio For the respondent: Akshay Aurora

Heard and released orally: December 8, 2023

On appeal from the conviction entered on September 29, 2019 and the sentence imposed on December 17, 2020 by Justice Kenneth G. Hood of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant was convicted of offences arising from a home invasion robbery committed with others. The appellant was armed with a firearm, which he used to hit one of the occupants in the head. He put the firearm in the mouth of the other occupant and then struck him in the mouth with the gun. He uttered veiled threats to discharge the gun.

[2] On the agreement of counsel, the appellant was declared a dangerous offender. The sentencing judge imposed a sentence of 13 years’ imprisonment, less credit for PSC calculated at a rate of 1.5:1, for a total credit of 7 years. The appellant’s net sentence was 6 years’ imprisonment.

[3] The appellant submits that the sentencing judge erred in not awarding Duncan credit to reflect the harsh conditions of the appellant’s PSC (i.e., institutional lockdowns). The sentencing judge heard evidence on the issue from correctional officials, and from the appellant.

[4] The sentencing judge declined to award Duncan credit, correctly noting that credit for lockdown days is not an entitlement. The awarding Duncan credit is inherently discretionary. It is entitled to deference on appeal: R. v. U.A., 2019 ONCA 946, at para. 15.

[5] We see no error in the sentencing judge’s approach. We do not accept the appellant’s submission that he erroneously elevated the threshold for receiving such credit. He simply found that the appellant’s experience in lockdown conditions did not transcend the hardships of being incarcerated for a long time, often in a cell with another inmate. This was already reflected in the award 7 years’ credit for PSC. He further found that the appellant’s health issues were not impacted by the lockdowns and that he received proper medical attention.

[6] The appeal is dismissed.

“Gary Trotter J.A.”

“Thorburn J.A.”

“L. Sossin J.A.”