Court of Appeal for Ontario

Date: June 16, 2025
Docket: COA-24-CR-0101
Coram: Gomery, Dawe and Madsen JJ.A.

Between:
His Majesty the King (Respondent)
and
Preston Woods (Appellant)

Appearances:
Marianne Salih, for the appellant
Lisa Csele, for the respondent

Heard: In writing

On appeal from the sentence imposed by Justice James A. Ramsay of the Superior Court of Justice on June 6, 2023.

Reasons for Judgment

Gomery J.A.:

Introduction

[1] The appellant was sentenced to 7 years in jail following his conviction for drug offences. He appeals the sentence on the basis that the sentencing judge erred by refusing to adjourn the sentencing hearing to permit the appellant to obtain records showing the amount of time he spent in lockdown during his pre-sentence custody. As a result, the sentencing judge did not consider, in determining a fit sentence, whether the appellant was entitled to a Duncan credit, that is, mitigation of his sentence to reflect harsh conditions during the pre-sentence custody: R. v. Duncan, 2016 ONCA 754.

[2] I agree that the sentencing judge erred in principle and would grant the appeal.

The Sentencing Hearing and Decision

[3] Following a jury trial, the appellant was convicted of possession of fentanyl for the purpose of trafficking and simple possession of methamphetamine. His sentencing hearing was scheduled to take place four days later.

[4] The appellant was detained after his arrest in December 2020, where he remained for almost two and a half years while awaiting trial. Some of his pre-sentence custody was at the height of the COVID-19 pandemic. During this period, jails were frequently in lockdown due to staffing shortages. Detainees were required to remain in their cells but for a half hour or hour each day; they could not participate in any programs; they could not have any visitors; and phone time was limited.

[5] At the outset of the sentencing hearing, the appellant’s trial counsel sought an adjournment so that he could obtain relevant materials, including lockdown records. His submissions with respect to the lockdown records, and the sentencing judge’s dismissal of this basis for an adjournment, were as follows:

MR. DECK: … Mr. Woods has been in custody since December 21st, 2020. That’s close to two and a half years. And because the conviction was Friday and the sentencing was set for today, I haven’t been able to get his lockdown record. I, I did manage to get some jail records from Niagara, the NDC, but he’s spent a lot of time at Central North and the NDC records I got, I got them late yesterday, and from what I can see they don’t actually include much info about lockdown. So without those records, Your Honour, I'm effectively prevented from making any submissions as – for Duncan or Summers credit.

THE COURT: What lockdowns are we talking about? The COVID lockdowns and all that?

MR. DECK: Yes, Your Honour. He’s been in jail through – through the pandemic really.

THE COURT: Right.

MR. DECK: And I, and I think it’s of significant importance that the court have those – those records.

THE COURT: Okay. I doubt whether the lockdown records would have much effect on the sentence in the circumstances, and the lockdowns were hard on everybody.

[6] The sentencing judge also refused to grant an adjournment so that the appellant could obtain a pre-sentence report.

[7] The sentencing judge then heard submissions on sentence. The Crown sought a sentence of 12-13 years in jail. The appellant’s trial counsel suggested that the applicable range was 8-15 years, but he requested a global sentence of 7 years based on mitigating factors, notably that the appellant’s trafficking was motivated by his drug addiction. He also asked for the sentence to be reduced by a Summers credit of 1.5 days for every day the appellant spent in pre-sentence custody: R. v. Summers, 2014 SCC 26. He acknowledged that he had no evidence of the conditions of this custody, and so did not seek a Duncan credit.

[8] Sentencing proceeded immediately after submissions. The sentencing judge concluded that, in the circumstances, 7 years was a fit sentence for the trafficking conviction, and that the appellant should be fined $2,500 for the possession conviction. He found that the appellant should receive a Summers credit of 3 years and 9 months, leaving him with 3 years and 3 months left to serve. The sentencing judge refused to consider mitigating the sentence to reflect the conditions of the appellant’s pre-sentence custody. Although he acknowledged that the appellant “was no doubt in some unusually harsh conditions for part of the time because of the pandemic”, he expressed the view that “so were we all”.

The Sentencing Judge Erred in Principle in Refusing to Grant an Adjournment for the Appellant to Obtain Records Relevant to Sentencing

[9] Judges in general have the power to manage court proceedings as they see fit. This includes the discretion to grant or deny a request to adjourn. This discretion must, however, be exercised judicially. Here, by refusing to adjourn the sentencing hearing, the sentencing judge predetermined, without any evidentiary basis, that the appellant’s experience in pre-sentence custody could not entitle him to a reduction in sentence. This was an error in principle.

[10] A sentencing hearing must be held “as soon as practicable after an offender has been found guilty”: s. 720(1), Criminal Code, RSC 1985, c C-46. Before a court determines a sentence, however, it “shall give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed” and it shall “hear any relevant evidence presented by the prosecutor or the offender”: ss. 723(1) and (2). “In determining the sentence, a court shall consider any relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or the offender”: s. 726.1. Relevant information under s. 726.1 includes information related to pre-sentence incarceration: R. v. Barnett, 2017 ONCA 897, para 42. “Where there is a dispute with respect to any fact that is relevant to the determination of a sentence”, those facts must be proven on a balance of probabilities, or beyond a reasonable doubt when they are aggravating: s. 724(3).

[11] Read collectively, these provisions presuppose that, absent countervailing considerations, the court should give the parties a reasonable opportunity to marshal relevant evidence prior to the sentencing hearing. The appropriate amount of time that should be given is case-specific and subject to the discretion of the sentencing judge.

[12] Here, however, it was obvious that the lockdown records sought by the appellant were potentially relevant to the determination of a fit sentence. Evidence of harsh pre-sentence incarceration conditions may entitle an offender to a mitigation in their sentence above and beyond a Summers credit: Duncan, at para. 6. This court has specifically acknowledged that the “very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a ‘Duncan’ credit”: R. v. Marshall, 2021 ONCA 344, para 50.

[13] Had the sentencing judge given the appellant time to obtain the records, it would have been open to him to ultimately determine that they did not justify a mitigation of the sentence, notwithstanding evidence of harsh pre-sentence custody: R. v. Green, 2021 ONCA 932, paras 18-19. Before doing so, however, the sentencing judge would have been obliged to consider such evidence and to explain why, in the circumstances, it did not justify a reduction in sentence: Green, at para. 16; R. v. Marong, 2020 ONCA 598, para 13.

[14] But the sentencing judge’s denial of the adjournment request short-circuited this process. The denial was based on the sentencing judge’s assumption that the appellant would not be able to prove that his experience in custody justified awarding a Duncan credit. This assumption deprived the appellant of the chance to seek a sentence reduction based on evidence of his pre-sentence custody conditions. By making this assumption, the sentencing judge also ignored his obligation to consider such evidence, and to explain why no mitigation of sentence was justified if he reached this conclusion.

[15] I am also concerned by the sentencing judge’s dismissive comments in referring to the appellant’s experience in prison. When denying the adjournment, he said that “the lockdowns were hard on everybody”. Later, although acknowledging that the appellant was “undoubtedly” placed in “unusually harsh conditions” due to the pandemic, he minimized this experience by saying: “so were we all”. These comments were injudicious. It is both callous and inaccurate to equate the extreme restrictions on detainees’ liberty during prolonged lockdowns with the restrictions on the activities of those not in jail during the COVID-19 pandemic.

The Sentence Should Reflect the Application of a Duncan Credit

[16] Since the sentencing judge erred in principle, this court must consider afresh the question of an appropriate sentence for the trafficking offence. [^1]

[17] I see no error in the sentencing judge’s findings with respect to the appropriate range of sentence, his consideration of aggravating and mitigating factors, or in his application of a Summers credit to reduce the time left to serve. I would adopt his reasons on these issues.

[18] The only question is whether the appellant’s sentence should be further mitigated in consideration of the harsh conditions he experienced during pre-sentence custody. It should be, in my view.

[19] The appellant has moved to adduce the lockdown records from his pre-sentence custody as fresh evidence on appeal. The Crown does not oppose this. I would grant the motion. The proposed evidence meets the criteria for admissibility in R. v. Palmer. It is relevant and probative of the question of a fit sentence, and the appellant’s failure to elicit the evidence at sentencing was not the result of any tactical decision or a lack of due diligence on his part.

[20] Based on these records, the appellant spent 101 days in lockdown during his pre-sentence custody. During 9 of these days, he was in lockdown for only some of the morning or afternoon and early evening. During the other 92 days, he and other detainees were confined to their cells except for half an hour or an hour each day, during which they could access the shower and telephones. They had no access to programming and no visitors.

[21] The Crown takes the position that no Duncan reduction is warranted, despite these records, because the sentencing judge applied other mitigating factors and imposed the 7-year sentence that the appellant’s trial counsel proposed. I disagree. The appellant did not ultimately seek a Duncan credit on the basis that the sentencing judge’s refusal to adjourn meant he had no evidence to support such a submission. Trial counsel’s success in persuading the sentencing judge of the merits of his other submissions on a fit sentence, outside of the issue of a potential Duncan credit, does not disentitle the appellant from seeking the sentence he should have received absent the sentencing judge’s error.

[22] The appellant suggests that, taking into account the unusually harsh conditions during his pre-sentence custody, a fit sentence would be 6 years and 9 months (before credit for time served). Having considered the lockdown records, I agree that the conditions of the appellant’s detention should be treated as a mitigating factor weighing in favour of a lesser sentence than what otherwise would have been justified. A custodial sentence of 6 years and 9 months is appropriate, given the sentencing judge’s findings about the nature and circumstances of the offence and the appellant.

Disposition

[23] I would accordingly grant the appellant leave to appeal his sentence and grant the appeal. I would set aside the sentence entered by the sentencing judge on the conviction for trafficking in fentanyl and substitute a sentence of 6 years and 9 months in prison.

Released: June 16, 2025

“S.G.”
“S. Gomery J.A.”
“I agree. J. Dawe J.A.”
“I agree. L. Madsen J.A.”

[^1]: The appellant does not challenge the $2,500 fine for possession of methamphetamine.