COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2025 ONCA 164

DATE: 20250303

DOCKET: C70516

Miller, Paciocco and Copeland JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Edgar Brown

Appellant

Aidan Seymour-Butler, for the appellant

Maria Anghelidis, for the respondent

Heard: February 19, 2025

On appeal from the sentence imposed by Justice John B. McMahon of the Superior Court of Justice on March 10, 2022.

REASONS FOR DECISION

[1] Edgar Brown was convicted of possession of a loaded restricted firearm, as well as two counts of possessing a loaded firearm while prohibited from doing so. He was sentenced to a global sentence of nine years. He sought leave to appeal his sentence. At the end of the oral hearing, we granted leave to appeal, but denied his appeal with reasons to follow. These are our reasons.

[2] Mr. Brown was incarcerated for 816 days prior to his sentencing, for the most part at the Toronto East Detention Centre (“Toronto East”). Pursuant to the decision in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, he was entitled to 1.5 days of credit towards his global sentence, for each of those days (“Summers credit”). The Crown requested a global sentence of 12 years but submitted that before the Summers credit was applied the global sentence should be reduced by 6 to 12 months for “Duncan credit” because of the harsh conditions of pretrial incarceration Mr. Brown had experienced at Toronto East.

[3] The term “Duncan credit” used by the Crown was apt when, in the wake of this court’s decision in R. v. Duncan, 2016 ONCA 754, the broad practice was to respond to especially punitive conditions of pretrial custody by quantifying and applying a numerical deduction from an otherwise appropriate sentence. Although still widely used, this term can now be misleading given our subsequent decision in R. v. Marshall, 2021 ONCA 344. In Marshall, Doherty J.A., for the court, cautioned against treating the mitigating effect of harsh conditions of pretrial custody “as a deduction from the appropriate sentence in the same way as the ‘Summers’credit’”: Marshall, at para. 53. Although he said it is not “necessarily inappropriate” to proceed in this way, he affirmed a strong preference for simply treating particularly punitive pretrial conditions as “a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence”: Marshall, at paras. 51-53. He adopted this approach to prevent courts from giving harsh conditions “unwarranted significance in fixing the ultimate sentence imposed”: Marshall, at para. 53.

[4] Put simply, judges must recognize that where an offender has already experienced particularly punitive conditions during their pre-sentence custody, the punishment they receive should be reduced to take this into account, but the degree of mitigation is a matter of discretion in all the circumstances, and not a matter of mathematical precision.

[5] The sentencing judge paid close attention to this court’s direction in Marshall. After reciting the Crown’s position, agreeing that the harsh conditions of incarceration were indeed mitigating, and then accurately describing the effect of Marshall, he imposed a global sentence of nine years’ incarceration, which he then reduced to five years and seven months based on Summerscredit of three years and five months.

[6] In his submissions Mr. Brown did not suggest that the sentence is unfit and he did not take issue with the Summers credit. He argued instead that the sentencing judge did not place sufficient weight on the conditions of his pretrial custody, including the hardship caused by COVID-19. And he argued that the sentencing judge erred by failing to “explain how the final sentence was mitigated by the Duncan … principles”, leaving it “unclear” whether he “reduced the appellant’s sentence in any meaningful way”.

[7] We denied these grounds of appeal because these submissions are in disregard of the principles affirmed in Marshall. The sentencing judge was explicit in confirming that he considered all the mitigating factors when identifying a fit sentence, “including the harsh conditions at the Toronto East, including the lockdowns, the challenges of the food, the effect that they have had on the accused’s mental health and physical health, becoming infected twice”. There is therefore no basis for concluding that the sentencing judge failed to mitigate the sentence because of the harsh conditions he found. Similarly, there is no basis for inferring that the sentencing judge gave too little mitigating weight to the harsh effects of pretrial custody, or for otherwise interfering with his discretionary determination that even after such mitigation a nine-year sentence was fit given the extremely aggravating considerations that he identified.

[8] We rejected Mr. Brown’s related submission that the sentencing judge erred by failing to identify the degree of mitigation he applied. Just as judges are not required to mathematically quantify the mitigating effect they assign to other mitigating factors they are not required to do so for the mitigating effects of harsh conditions of incarceration. If we required judges to quantify the reduction as Mr. Brown proposes, we would effectively be disregarding our own decision in Marshall by requiring judges to assign precise credit for harsh conditions of incarceration. We therefore dismissed this ground of appeal.

[9] During the oral hearing Mr. Brown expressed reliance on a new ground of appeal, not identified in his appeal pleadings and not supported by a fresh evidence application, based on this court’s decision in R. v. Habib, 2024 ONCA 830, 99 C.R. (7th) 110. He asked for a reduction in the length of his incarceration because of its effect on his family. In making this submission he relies on the letters of support filed during his sentencing hearing which disclose that he has a partner, is a stepfather to his partner’s 12-year-old child and has two sons of his own, as well as an extended family. The sentencing judge considered Mr. Brown’s family support in determining his sentence, but he did not address the impact that the sentence would have on his family and his family relationship. Mr. Brown is asking us to do so now, and to reduce his sentence by up to a year. Since the Crown raised no objection to this issue being raised, we entertained these oral submissions. However, we were not persuaded that a sentence reduction is warranted.

[10] First, Habib does not express new law; the relevant principles were affirmed by this court in R. v. Spencer (2004), 2004 CanLII 5550 (ON CA), 72 O.R. (3d) 47 (C.A.), at paras. 46-47, leave to appeal refused, [2005] S.C.C.A. No. 4. The fact that Mr. Brown did not raise this issue before the sentencing judge raises questions about how compelling this consideration is in his case, as does the fact that he attempted to abscond to Mexico to avoid arrest.

[11] Moreover, the letters of support he is relying on lack the kind of specificity about the role Mr. Brown plays in his family that would be needed to demonstrate that the adverse impact of his sentence on his family warrants a sentence reduction. We note that he has already been incarcerated on offences that are the subject of this appeal for the last five years, and that he was frequently incarcerated, for long periods, while his own children were young.

[12] This is not a case for a sentence reduction based on family circumstances.

[13] We therefore dismissed Mr. Brown’s appeal.

“B.W. Miller J.A.”

“David M. Paciocco J.A.”

“J. Copeland J.A.”