Court File and Parties

Ontario Court of Justice

Date: August 8, 2013

Court File No.: Halton 11-1467

Between:

Her Majesty the Queen

— and —

Matthew Mailhot

Before: Justice F.L. Forsyth

Heard on: June 6, 2013

Reasons for Judgment released on: September 11, 2012

Reasons for Sentence released on: August 8, 2013

Counsel

Mary Ward — counsel for the Crown

Tara Mimnagh — counsel for the accused Matthew Mailhot

FORSYTH J.:

Introduction

[1] Mr. Mailhot was jointly charged with Thomas McConville with a single count of aggravated assault on the same alleged victim contrary to Section 268 of the Criminal Code arising out of an incident on April 8, 2011 in the prisoner holding cell in the Milton Courthouse. The two accused and the victim were all part of a group of prisoners in that particular bullpen cell who were awaiting court appearances on unrelated charges while they were detained in custody at Maplehurst Detention Centre.

[2] Insults were exchanged between McConville and another prisoner, Mr. Denton, and eventually the two of them faced off in the toilet area where I found that McConville had punched Denton in the head and/or face. McConville admitted as much in his trial testimony except that he said that it was self-defence. I rejected that position.

[3] Both Mr. McConville and Mr. Mailhot elected trial by the Ontario Court of Justice, and Mr. Mailhot was and is represented by Ms. T. Mimnagh. After a trial I found both Mr. McConville and Mr. Mailhot guilty of the aggravated assault charge. At the time of this sentencing of Mr. Mailhot, Mr. McConville has been severed from the original information by the Crown. Therefore I have not sentenced him.

[4] The evidence given by the Crown witnesses that the Court accepted with respect to Mr. Mailhot's involvement in the assault by both him and Mr. McConville on Mr. Denton was provided largely by custodial officers who had been either present in the monitoring area of the Milton bullpen cell block or had viewed the videotape of the activities in the bullpen that included the assault. Mr. Mailhot did not testify on his own behalf.

[5] I found that Mr. McConville had committed an initial assault upon Mr. Denton in the toilet area of the cell block which was not in full view on the video of the bullpen. However, Mr. Denton emerged from that area after being in Mr. McConville's presence and collapsed on the concrete floor outside of that area in full view of the surveillance video with a pool of blood collecting around his head. Mr. Denton was eventually taken to hospital by ambulance and was treated for his serious injuries. On consent, the Crown filed a medical report of those injuries as Exhibit Number 4 on the trial. The records described fractures to both the left and right orbital bones on Mr. Denton's face, amongst other injuries.

[6] As earlier stated the incident arose out of perceived insults from Mr. Denton to Mr. McConville and, according to Mr. McConville who did testify, also to some extent because of Denton's reputation as a troublemaker on the range at Maplehurst.

[7] In his own trial testimony Mr. McConville admitted to having delivered a "haymaker punch" to the head of Mr. Denton in the toilet area and then after Mr. Denton emerged into the bullpen cell block and fell to the floor, he delivered at least one intentional kick to the head/neck/shoulder area of Mr. Denton while he lay prone on the floor. The videotape evidence certainly substantiated his testimony with respect to the kick or kicks.

[8] Initially the Crown had intended to call Mr. Denton to testify against the two accused but on the first day of trial on December 13/11 Ms. Ward concluded that he would not be able to provide material evidence. He had suffered extensive head injuries in the incident. Therefore the Crown declared that she intended to play cell block videos of the incident and call various custodial officers who had been on duty on April 8/11 to view them and give identification evidence of the alleged assault upon Denton.

[9] Both Defence counsel objected and required a voir dire on the issue. The Crown called another witness out of order on December 13/11, as well as a witness who said that he had to get legal advice first from his lawyer because I had sentenced him a little earlier on unrelated matters. The trial was then remanded to February 23/12, on which day the voir dire was commenced. It was further remanded to March 28/12 for continuation and on that day all of the voir dire evidence was completed. I received submissions from all counsel and reserved my decision to the next trial continuation date of May 28/12.

[10] On May 28 I ruled in favour of the Crown application and the voir dire evidence was applied to the trial proper. That evidence concluded the case for the Crown and Mr. McConville then testified in his case for the defence. Mr. Mailhot elected not to call a case for his defence. The trial was remanded to July 18 for final submissions and I reserved my decisions to September 11/12 when I released a 40 page written set of reasons and found both accused guilty of the s. 268 offence. I had ordered a PSR returnable on that date although Ms. Mimnaugh had objected because she submitted that it would most likely be of little value given the extent of Mr. Mailhot's record.

The Evidence Supporting the s. 268 Conviction of Mr. Mailhot

[11] Paragraphs 140 and 143 of my trial judgment state:

[140] I have carefully considered both the original oral and the latter written submissions of Ms. Mimnagh and I am satisfied beyond a reasonable doubt from the evidence of the custodial officers who viewed the cell block video in the colour format and the crisper, cleaner image format, as opposed to the copy that was available to the Court, that there is ample evidence, in the absence of any evidence to the contrary, that Mr. Mailhot delivered a single kick to the head or neck area of Mr. Denton while he was lying on the concrete floor after the punch delivered by McConville at the toilet had put him down.

[143] In addition, now that I have accepted the identification evidence of the custodial officers, and therefore was aided by their testimony in court when viewing the poorer quality copy video of the cell block version, I also find from my viewing of the video now that I can identify Mr. Mailhot and separate him from the actions of Mr. McConville when Mr. Mailhot did indeed deliver a kick to the head area of Mr. Denton where he lay in a pool of blood on the floor. It was a single brief action that was concluded by Mr. Mailhot simply walking away. I am satisfied beyond a reasonable doubt that Mailhot did deliver one quick kick to the prone Denton.

[12] Further, at paragraph 154:

...I find that the Crown has proven beyond a reasonable doubt that Mr. Mailhot committed an assault upon the person of Mr. Denton by delivering a kick to his body after approaching him while Mr. Denton was lying on the floor in a pool of his own blood as a consequence of the assault by Mr. McConville in the toilet area.

[13] The Crown argued that the Court should find that Mr. Mailhot participated as a s. 21 party to the s. 268 offence of Mr. McConville against Mr. Denton. However, after considering the Crown's argument and submitted common law precedents, I disagreed with the Crown and stated at paragraph 159:

With respect, I disagree with the conclusion that the Crown asks me to draw, although I agree that she has presented a cogent theory. However, in my view, the video evidence is equally consistent with the conclusion that Mailhot quite simply decided to add his licks to Denton because Denton was a generally obnoxious chap, as the evidence indicated, as it is with his having acted in a s. 21 capacity with McConville. I observed that the two of them never appeared to be talking to each other before Denton left the camera range and disappeared into the toilet area. When McConville followed him into that area a short while later Mailhot did not follow suit which I would have expected if he had formed an intention in common with McConville to assault Denton.

[14] In addition, there is no evidence that Mr. McConville and Mr. Denton had known each other on the range before their attendance at the bullpen together and there is no evidence that the two of them had any mutual animus against Mr. Denton.

[15] Further, at paragraph 161 of my judgment I found that the preponderance of the evidence "shows Mr. McConville entering the toilet area without Mr. Mailhot anywhere proximate to him, and then Mr. Mailhot simply comes from a considerable distance away in the cell to approach the prone Mr. Denton at what happened to be the same time as Mr. McConville decided to deliver his first kick to Denton's head".

[16] Notwithstanding the fact that I did not accept the Crown's s. 21(2) argument, I made the following specific finding with respect to Mr. Mailhot at paragraph 164:

Having said that, however, and in my opinion, having engaged in an extremely technical analysis of s. 21 [2], I am otherwise convinced beyond a reasonable doubt that Mr. Mailhot's assault should be categorized as an aggravated assault pursuant to the rationale enunciated by the Ontario Court of Appeal in Vang and also the British Columbia Court of Appeal in Cuadra to the effect that the test is simply an objective foresight of bodily harm when the assault is committed. In my view when Mr. Mailhot approached Mr. Denton and could obviously see, as we all could see, that Mr. Denton was lying on the floor in a pool of blood coming from his head area, it should have been objectively foreseeable to him that any additional assault by way of a kick to the head area of Mr. Denton could cause further bodily harm. As Mr. Justice Cumming said in Cuadra "specific wounds do not have to be foreseeable."

[17] With respect to the potential role of s. 718.1 of the Criminal Code in the sentencing of Mr. Mailhot, when I was anticipating sentencing Mr. Mailhot and Mr. McConville simultaneously, I made the following comments at paragraph 165:

I therefore find Mr. Mailhot guilty as charged of the Section 268(1) aggravated assault offence against Mr. Denton. I will simply mention at this point that when it comes to sentence for Mr. Mailhot and Mr. McConville I would think that Section 718.1 dealing with the degree of responsibility in the commission of the offence would play a significant role in the Court's determination of the appropriate relative sentences for each of them with respect to this matter.

[18] Regardless of the fact that Mr. McConville has now been severed by the Crown for other purposes, in my view that does not change my comment about the application of s. 718.1 to my specific findings with respect to Mr. Mailhot.

Mr. Mailhot's Criminal Record

[19] On June 6, 2013 during submissions the Crown filed as Exhibit Number 1, on consent, an updated criminal record for Mr. Mailhot. He is currently 26 years of age and his record begins at the age of 23 in 2010, at which time he received two years less a day after 233 days of pre-sentence custody on charges of robbery, disguise with intent and possession of a drug for the purpose of trafficking.

[20] In November 2006 he was given a sentence of two years after 134 days of pre-sentence custody on charges of robbery, break and enter, possession of stolen property and failing to comply with a probation order and a recognizance of bail. It is to be noted that at those times pre-trial custody was customarily credited at two for one.

[21] He also had committed a number of offences in the years 2005 and 2006 of a less serious nature, but nevertheless resulting in various periods of incarceration after pre-trial custody as well. However, the two previously mentioned robbery convictions with their assorted charges were the most serious on his record.

[22] In addition, the updated version of his record reveals that in March, 2011 while in custody serving his 2010 robbery sentence, he committed the offence of possession of a weapon for a purpose dangerous to the public peace for which he received a sentence of 4 months custody consecutive to the sentence that he was currently serving.

[23] Also in September, 2011 was convicted of an assault level one offence on another inmate while still serving that 2010 robbery et al sentence. He received a sentence of six months incarceration consecutive to that sentence once again.

[24] In addition to his adult record, Mr. Mailhot had a steady stream of dispositions under the Youth Criminal Justice Act and its predecessor The Young Offender Act stretching from April 2000 to December 2004. These offences were also a combination of breaches of court orders and property offences, including breaking and entering and two dispositions of assault. As might be expected, as his youth criminal record escalated he began to receive periods of time in custody and community supervision.

[25] It is agreed by Ms. Mimnaugh and the Crown that after May 17, 2012 Mr. Mailhot would have completed the service of all of his sentences as above chronicled. Therefore, she submits that he could have made an application for bail. However, Ms. Mimnagh informed the Court that he had not done so.

[26] It was agreed that as of this sentencing judgment date of June 27, 2013 Mr. Mailhot will have served 13 months and 10 days of pre-trial custody which can be properly attributed to this charge.

[27] A pre-sentence report was obtained and it reveals that following the separation of his parents when he was only three years of age Mr. Mailhot grew up harbouring an exceptionally high level of frustration and anger over the lack of his father's involvement with his life. He began to take his frustrations out on his mother to such an extent that she eventually put him into foster care at the age of 11. However, he returned to her home after a short period of time, but continued to misbehave to such an extent that he moved out of the family home at the age of 14 and began living with, as the writer of the report put it, "unsavoury friends". He has spent almost 10 years of the last 12 years of his life incarcerated and the writer states that periods of community supervision had proved to be ineffective and terms of incarceration have failed to have any deterrent effect.

[28] Ms. Lif, the probation officer who wrote the report, does state that currently Mr. Mailhot reports a willingness to attend residential treatment and to take part in community-based rehabilitative programming to address his addictions and anger management issues. It is reported that he began to use marihuana at the age of 12 and that developed into a regular habit. In addition, he began to use crack cocaine at the age of 13, and by the time he was 16 he was using heroin and administering drugs intravenously. There was also some use of morphine and Oxycontin. It is reported that between 2002 and 2009 he did engage intermittently with Niagara Alcohol and Drug Assessment Services ("NADAS"). The primary counsellor for Mr. Mailhot at NADAS stated to the writer of the report that he had five admissions in seven years with relapses, combined with additional offences, as well as wavering personal motivation. He, however, reportedly had some success with outpatient counselling in the years 2005 and 2006.

[29] Ms. Lif reports that Mr. Mailhot told her that he has done a great deal of soul searching recently because his own mother is undergoing treatment for cancer and he realizes that his criminal behaviour has prevented him from being able to be with her and be of support to her. He does respect and love his mother. He told Ms. Lif that he realizes that it is now time for him to do whatever it takes to turn his life around and he regrets his historical lifestyle choices. He has indicated that if he receives a period of incarceration he is willing to be transferred to an institution that can provide appropriate rehabilitative programming.

[30] His mother was consulted by Ms. Lif and she stated that she maintains a close relationship with her son and she is willing to have him live with her after he is discharged from custody. She would help him focus on any rehabilitative plans and she would have no compunction about holding him accountable should she become aware that he was violating any court orders.

[31] Mr. Mailhot has limited formal education to the level of grade eight, but has an abiding interest in becoming a blacksmith because apparently there is some blacksmithing in the family, historically speaking. He also has a friend, he states, who is willing to employ him at a machine shop when he is released.

[32] Ms. Lif reports that during the interview Mr. Mailhot presented as polite, cooperative and appeared to be honest when presenting information about his life history. He admitted to anger management deficits and the need for personal counselling to address his original family issues with respect to his father's abandonment, anger management and also addiction to both drugs and gambling.

[33] As a sequel to the pre-sentence report Mr. Mailhot wrote a letter which was presented to the Court on June 6, 2013 and was, on consent, introduced as Exhibit Number 4. In that letter he expressed in some considerable detail the fact that he finally realizes that his life is going nowhere but downhill if he does not correct his anti-social behaviour tendencies and he definitely feels a sense of responsibility and guilt in light of his mother's battle against cancer. He realizes that he is still only 26 years of age and, therefore, given a normal life expectancy in this day and age, he has a long way to go and he might as well make the most of it.

Position of the Crown Before the Application of Credit for Pre-Trial Custody

[34] Ms. Ward submits that a sentence of three to three-and-a-half years, less any credit that the Court, in its discretion, gives to Mr. Mailhot for his pre-trial custody is the appropriate sentence. She emphasizes the serious robbery convictions on his criminal record and the lengthy sentences that he received on each of those two occasions in 2006 and as recently as 2010.

[35] Ms. Ward also submits that a serious assault that occurs while in custody must receive a sentence with a significant message of general deterrence to other potentially like-minded inmates. She submits that although inmates are in an insulated setting, nevertheless when they are gathered together in a relatively small area, obviously their vulnerability to each other is significant. As is clear from this case, it is not always possible for the custodial officers to stop such an occurrence before it actually occurs, especially when it happens as quickly as did this particular assault.

[36] Ms. Ward, referring to the pre-sentence report, acknowledges that Mr. Mailhot has had a sad and troubled background, but nevertheless it has resulted in his becoming a danger to the community because of his excessive use of very serious drugs and his seeming inability or unwillingness to date to properly deal with that problem.

[37] Ms. Ward also reminds the Court that in this particular case Mr. Mailhot had committed offences while in custody in 2011 that resulted in sentences being given to him while in custody and while serving a sentence on other matters.

[38] Ms. Ward also made specific submissions with respect to whether or not the Court should award any enhancement of pre-trial custody credit pursuant to s. 719(3) and 719(3.1). However, I will deal with those submissions later at the same time as I am dealing with the defence submissions for such an enhancement.

[39] Ms. Ward referred the Court to a sentencing decision of the Ontario Court of Appeal cited as R. v. Anderson (Appeal by Mercieca), 2011 ONCA 710. In its endorsement on November 14, 2011 the Ontario Court of Appeal stated that following a jury trial the appellant Mercieca was convicted of aggravated assault and sentenced to three years imprisonment. The offence involved a vicious assault on a man previously rendered senseless, who was obviously defenceless, by a blow to the head with an umbrella pole by an unknown assailant. The Court stated that although fresh evidence brought before the appeal court revealed that the appellant had made some significant strides towards rehabilitation, nevertheless the three year sentence that had been imposed at trial by the Superior Court judge was fit at the time that it was imposed. Because of excellent rehabilitative strides, the Crown acknowledged that some reduction in the sentence might be warranted as of the time of the appeal and, in the result, the Ontario Court of Appeal reduced the sentence to two years imprisonment.

[40] Ms. Ward referred the Court to paragraph 77 of the trial judge's decision which stated:

Society denounces conduct involving gratuitous and/or grossly disproportionate violence especially where a single victim is set upon by multiple people. Society's denunciation is greater where the victim is vulnerable and further greater where a weapon is used. All of these factors were present in this case. As such, the sentences must be significant to reflect society's denunciation.

[41] I feel it is only proper to refer to paragraph 11 of the Superior Court trial judge's Reasons for Sentence as well. That states:

Mr. Hurley suffered significant injuries to the left side of his head and face that were initially caused by the single pipe hit and were then exacerbated by Mr. Mercieca's subsequent assault that included at least several punches to Mr. Hurley's head and face. There were also injuries to the right side of Mr. Hurley's face that could only have been caused by Mr. Mercieca's assault that followed the first pipe hit.

[42] This case involved an assault by three persons, including Mr. Mercieca, on the victim in a street situation that had begun as a consensual fight between Mr. Mercieca and the victim.

[43] It was conceded by the Crown that at paragraph 53 Mr. Justice Salmers stated that Mr. Mercieca had no criminal record at the time of the offence. However, while awaiting his trial he had breached his bail recognizance curfew condition and had been found guilty and served a sentence for that offence by the time of his sentencing on the aggravated assault charge.

[44] Therefore, the Crown, quite appropriately, asks this Court to do engage in a proportional analysis between the relative seriousness of the criminal actions and involvement of Mr. Mailhot in the assault on Mr. Denton by comparison with the level of culpability of Mr. Mercieca in the assault in that case and the fact that Mr. Mercieca had no previous criminal record while Mr. Mailhot, of course, has the very significant criminal record that has already been discussed in this sentencing summary. Partially for that reason the Crown asks the Court to find that her position of three to three-and-a-half years is both realistic and fair with respect to Mr. Mailhot.

[45] The Crown also seeks ancillary orders of a DNA sample under s. 487.051 and a lifetime prohibition order involving ammunition, explosives and firearms under s. 109 of the Criminal Code.

[46] If this Court's sentence should happen to result in a period of custody for Mr. Mailhot that would not send him to the penitentiary after the credit is given to him for pre-trial custody, the Crown reserves the right to make submissions about an appropriate probation order in line with the recommendations of the writer of the pre-sentence report.

Position of the Defence Before the Application of Credit for Pre-Trial Custody

[47] Ms. Mimnagh reminded the Court that I had made a specific notation in my judgment that I had found Mr. Mailhot guilty of one briefly delivered kick and that that kick was not while he was acting as a s. 21(2) party to the assault of Mr. McConville upon Mr. Denton.

[48] As an initial quantum of sentence before the application of pre-trial custody, Ms. Mimnagh submits that 18 months to two years less a day would be appropriate. With respect to the pre-trial custody of now 13 months and 10 days, she seeks to have the Court enhance that pre-trial custody to the maximum 1.5:1 permitted by s. 719(3.1). If the Court accedes to that request, then the enhanced credit for Mr. Mailhot's pre-trial custody will equal approximately 19.7 months. If that were to be the case, then the sentence that Ms. Mimnagh would be seeking at this point in time would be either one where the court would be in debt to Mr. Mailhot by 1.7 months or up to a maximum of 4.3 months from this point forward.

[49] Ms. Mimnagh argues that the Court should consider that jailhouse assaults ought to be often expected to occur and, therefore, in a sense, they should be viewed as being somewhat mitigated by comparison with a wanton act of gratuitous violence by someone at liberty upon a complete stranger in the street. She emphasizes that the jailhouse culture is inherently violent and, therefore, there ought to be a reduced s. 718.1 responsibility attributed to a jailhouse perpetrator, as well as the fact that he or she should be given the benefit of that type of an assault being considered to be perhaps somewhat mitigating.

[50] Ms. Mimnagh referred the Court to the case of R. v. Anderson and Mercieca, supra, but in particular to the sentence that was imposed upon the female, Ms. Anderson, for her part in those acts of group violence that had been engaged in by her and Mr. Mercieca. Mr. Justice Salmers in that case had given Ms. Anderson four months custody for one single kick at the end of the combined assaults of the other two accused.

[51] However, I feel that it is important to note at this juncture that Mr. Justice Salmers found at paragraph 18 of his judgment that Ms. Anderson had kicked Mr. Hurley once after he had been struck by the pipe for the first time, but that the evidence was insufficient for him to be able to find that she had kicked him in the face or the head. He also found that she was barefoot at the time and that she had probably kicked him in the ribs and that any injuries that the victim may have suffered to his ribs were trifling in nature.

[52] It is also important to note, as the Crown submitted in reply to Ms. Mimnagh, that Ms. Anderson was found guilty of assault causing bodily harm only and not guilty of a charge of aggravated assault such as has been found to be the case with Mr. Mailhot. In addition, Justice Salmers noted that Ms. Anderson was 23 years of age, the mother of a 16-month-old child, that she had no criminal record and had been totally compliant with the terms of her release.

[53] I would suggest that the difference between the extensive criminal record of Mr. Mailhot and the nonexistent criminal record of Ms. Anderson is a significant factor in any comparison that the Court may be asked to make between the sentence received by Ms. Anderson on a charge that is a notch down the scale of seriousness in the Criminal Code from that on which Mr. Mailhot has been convicted and any sentence that this Court should impose upon Mr. Mailhot.

[54] Ms. Mimnagh emphasizes to the Court that s. 718 dealing with the fundamental principles of sentencing in the Criminal Code ought to play a significant part in this sentencing, in particular with respect to the potential rehabilitation of Mr. Mailhot. She refers to the pre-sentence report writer's comments that jail has not deterred him and she asks this Court to find that there's no utilitarian value in imposing significant jail time upon Mr. Mailhot as opposed to trying to get him into the community on a probation order with stringent conditions to assist him in rehabilitation. Of course Ms. Mimnagh does not ignore the necessary proportional balancing analysis that the Court has to engage in with respect to the principles of specific and general deterrence, denunciation, rehabilitation, degree of responsibility for the offence and parity of sentencing with respect to similar offences committed by similar people.

[55] Ms. Mimnagh also referred the Court to an exhibit which had been entered at the commencement of the sentencing proceeding on June 6, 2013 as Exhibit Number 2 that is described as the OTIS records with respect to Mr. Mailhot's period of time at the Maplehurst Correctional Centre. She refers the Court to the entry of January to February 2013 where it is revealed that Mr. Mailhot was placed on suicide watch and segregation because of a psychiatric concern by the Correctional officers. In addition, there is a 2004 entry reflecting an attempted suicide while in custody.

[56] She commends the Exhibit 4 letter written by Mr. Mailhot to the Court as being extremely insightful at this point in his life and that the Court should draw some solace from that letter with respect to the prospects of his rehabilitation in the community once he has finished serving his custodial sentence.

Enhancement of Pre-Trial Custody: s. 719(3) and 719(3.1)

[57] Ms. Mimnaugh submits that Mr. Mailhot had completed serving his sentences on the charges for which he was convicted and sentenced while in custody in Maplehurst by May 17, 2012. Therefore, she argues that he could have applied for bail on this s. 268 charge after that date. However, he did not do so. Nevertheless, submits Ms. Mimnagh, the Court should not conclude that he would have been unsuccessful if he had applied for bail. She does concede, of course, that the Court might reach that conclusion by examination of Mr. Mailhot's previous record and even on the basis, to some extent, of the fact that he had been charged and convicted of offences while in custody before May 17, 2012. However, Ms. Mimnagh still makes the argument that the Court should not totally pre-judge the bail eligibility status of Mr. Mailhot at that time.

[58] Ms. Mimnagh refers the Court to the decision of R. v. Summers, 2013 ONCA 147, a decision of the Ontario Court of Appeal on March 12, 2013. In that decision the court considered the effect and proper interpretation of ss. 718(3) and 718(3.1) by trial sentencing courts and established some principles and guidelines. Ms. Mimnagh referred the Court specifically to paragraph 66 and paragraph 119. Madam Justice Cronk, speaking for the Ontario Court of Appeal, at paragraph 66 stated:

I note, first, the obvious but important point that s. 719(3.1) is silent as to the situations that will justify enhanced credit for pre-sentence custody. As others have observed, the word "circumstances" in s. 719(3.1) is not qualified by any modifying or limiting language. Nor is it defined under the Act. As indicated by Chief Judge Cozens in R. v. Vittrekwa, 2011 YKTC 64, 275 C.C.C. (3d) 193, at para. 46, none of the words "exceptional", "unusual" or "special" (nor, I would add, any of the words "compelling", "extraordinary", or "rare") is used in s. 719(3.1) to constrain or limit the circumstances that may justify enhanced credit.

[59] Further, at paragraph 119, Madam Justice Cronk stated:

I conclude where I began. In my view, properly construed, s. 719(3.1) of the Code permits a sentencing judge to credit pre-sentence custody up to a maximum of 1.5:1 for each day spent in pre-sentence custody where, on consideration of all relevant circumstances, such credit is necessary to achieve a fair and just sanction in accordance with the statutory scheme for sentencing and punishment set out in the Code. On a proper record, the relevant circumstances that may justify this enhanced credit include ineligibility for remission and parole while in remand custody.

[60] As mentioned earlier in this summary, the internal custodial records of Mr. Mailhot during the past three or four years had been entered on consent as Exhibit Number 2 on this hearing. In fact, Exhibit Number 2 contains the history of Mr. Mailhot's activity within various Correctional centres and detention centres, including the Maplehurst Complex, starting at November 2009 and continuing up to at least March 27, 2013. They include some 43 separate infractions between December 22, 2009 and March 27, 2013 to which Mr. Mailhot entered pleas of guilty in the context of the internal proceedings at the custodial institutions. The adjudications of those internal infractions are also contained within Exhibit Number 2 and they consist of as minimal a disposition as a reprimand right up to a period of days in segregation, and also, of course, from time to time, loss of privileges and other like dispositions that are administered internally by custodial institutions.

[61] These infractions also include a reference to the two criminal charges to which he entered pleas of guilty and was sentenced and had completed his sentences by May 17, 2012. Notwithstanding this particular history, Ms. Mimnagh referred the Court to a decision of Mr. Justice Kelly in the Ontario Superior Court of Justice on March 27, 2013. That case is cited as R. v. Paul Williams, 2013 ONSC 1855. Ms. Mimnagh submits that this particular decision is some authority for the proposition that Mr. Mailhot should not be disqualified from being considered eligible for an enhancement of his pre-trial custody credit simply because of the internal infractions which he committed and the punishments received for them while in custody at the Maplehurst Centre.

[62] Rather than wait until my analysis to refer to the Williams case, I prefer to do it now at this point in the defence submissions.

[63] Mr. Williams was originally charged with eight Criminal Code offences arising from his alleged participation in a home invasion robbery with two other accomplices while armed with a firearm. He entered a plea of not guilty and after a jury trial he was convicted of three gun-related offences, one of possessing a loaded prohibited firearm and, as well, a breach of two prohibition orders against the possession of firearms contrary to s. 117.01 of the Criminal Code and two counts of failing to comply with his probation contrary to s. 733.1 of the Criminal Code. In total, Mr. Justice Kelly states that Mr. Williams was convicted of seven offences relating to his possession of one firearm. He was acquitted of attempted robbery with a firearm and attempted theft. He was then sentenced for those convictions.

[64] The Crown sought a global sentence of seven years. Mr. Williams sought a sentence of three years less credit for his pre-trial custody for which he sought credit at the maximum level of 1.5 to 1. Ultimately, Justice Kelly imposed a global sentence of four years less pre-trial custody which he credited to Mr. Williams at a 1.5 to 1 basis. Mr. Williams had 560 actual days of pre-trial custody to his credit by the date of his sentencing.

[65] At paragraph 32 Mr. Justice Kelly set out the comments of Madam Justice Cronk in R. v. Summers, supra, at paragraph 8:

Pursuant to the decision or R. v. Summers, Cronk J.A. held at para. 8 that:

... s. 719(3.1) of the Code allows a sentencing judge to credit pre-sentence custody at a ratio up to, but not exceeding, 1.5:1 for each day spent in pre-sentence custody where, on consideration of all relevant circumstances, such credit is necessary to achieve a fair and just sanction in accordance with the statutory scheme for sentencing and punishment set out in the Code. On a proper record, the relevant circumstances that may justify this enhanced credit include ineligibility for remission and parole while in remand custody.

[66] At paragraphs 36, 37 and 38 Mr. Justice Kelly referred to the fact that Mr. Williams had been charged with two counts of assault allegedly occurring on separate occasions during his pre-trial custody period in the Don Jail. However, he noted that after some initial investigation by the Correctional authorities, no further action was taken other than an occurrence report being filed. There was no plea of guilty by Mr. Williams for those alleged infractions and certainly no adjudication or disciplinary action taken. At paragraph 38 Mr. Justice Kelly stated, "While I appreciate that these incidents 'may' have an impact on Mr. Williams' eligibility for parole, I am uncertain if it will, as no disciplinary action was taken as a result of either of the two incidents".

[67] At paragraph 34 Mr. Justice Kelly referred to submissions of defence counsel for Mr. Williams which, as I understand Mr. Justice Kelly's language, he accepted. These submissions were to the effect that there had been concerns for the safety of Mr. Williams while he was in pre-trial custody to a large extent because he had participated as a witness in another trial wherein a person was convicted of a criminal offence due to his testimony. Word, of course, had spread within the prison system that Mr. Williams was a "rat" and that he had been marked for retribution as a result. He had also been housed in conditions of three inmates to a cell built for only two while at the Don Jail and there had been repeated lockdowns.

[68] At paragraph 39 Mr. Justice Kelly concluded that the circumstances to which he had referred involving Mr. Williams' pre-trial custody situation and conditions justified the maximum credit of 1.5 days for each day spent in pre-trial custody.

[69] In my view the circumstances that were found to have existed for Mr. Williams during his pre-trial custody period are significantly distinguishable from the circumstances of which this Court is aware with respect to Mr. Mailhot's pre-trial custody. First and foremost is the fact that, as I have already stated, Mr. Mailhot was disciplined on some 43 infractions, including the two for which he served a sentence on May 17, 2012. Secondly, there is no suggestion that Mr. Mailhot's custodial environment was riddled with safety concerns and/or other negative influences such as faced Mr. Williams.

[70] The next point advanced by Ms. Mimnagh was the fact that this trial had been protracted, in her submission, by the fact that the complainant, Mr. Denton, who had been subpoenaed to testify on his own behalf about the assault allegations, apparently, in the mind of the Crown Attorney, was unable to provide that testimony. This decision was only made by the Crown basically on the first day of trial, although, of course, consideration had been given to it earlier by Ms. Ward, I am sure. However, Ms. Mimnagh submits that it is a fact that on the first day of trial the Crown was required to ask for a remand of the trial in order to be able to obtain the cell block videos and line up the custodial officers who would have to search their own records to determine which one of them or numbers of them had been on duty on the day in question and had access to viewing what happened in the cell block on the surveillance camera. This was for the purpose of being able to provide evidence to the Court of identification of the perpetrators of the alleged assaults upon Mr. Denton. This evidence was clearly integral to the Crown's case. Ms. Mimnagh submits that this three-month remand caused, of course, an additional three months of pre-trial custody to be served by Mr. Mailhot which otherwise would not have been expected and should not ideally have been the case. Most certainly, she submits, it is through no fault of his own that that additional three-month delay was occasioned.

[71] Ms. Mimnagh recognizes that the delay from December 14, 2012 to the date of these submissions on June 6, 2013 was mainly due to the defence request of legal aid to approve the ordering of the necessary transcripts for a s. 11(b) Charter application to be presented on behalf of Mr. Mailhot, seeking a ruling by this Court of unreasonable delay and, of course, a stay of the charge. Eventually the application was abandoned on May 15, 2013 when the legal aid approval was not forthcoming.

[72] However, notwithstanding that concession, Ms. Mimnagh refers the Court to the decision of R. v. Mozumdar which was a case decided by Mr. Justice Lipson in the Ontario Court of Justice with reasons released March 20, 2012. This was a sentencing decision and at paragraph 21 Mr. Justice Lipson stated:

Counsel acknowledged that Mr. Mozumdar was not entitled to enhanced credit for his pre-trial custody prior to plea. Ms. Burke submitted that enhanced credit should be given for the period between his guilty plea and today's sentencing date. It was submitted that the interests of justice required that a thorough psychiatric assessment be conducted to determine criminal responsibility as well as risk assessment. As well, counsel agreed that a pre-sentence report was necessary to assist the parties and the court. The requests for these materials were made by counsel and acquiesced to by the accused who, as a result, lost the benefit of any remission for that pre-sentence assessment period. This was not an effort on the part of the accused to unduly prolong his pre sentence detention or manipulate the system. In some cases where circumstances beyond the offender's control will justify enhanced credit, such as the court being unavailable due to illness or delay due to the need to prepare a pre-sentence report: see R.v.Morris, 2011 ONSC 5206 (S.C.O.) at para. 47. I agree with this submission.

[73] Ms. Mimnagh submits that these statements by Mr. Justice Lipson and his reference to R. v. Morris, a decision of the Ontario Superior Court of Justice, concerning the fact that circumstances beyond the offender's control will justify in some cases enhanced credit, with one of the examples being given as the "need to prepare a pre-sentence report", supports her submission that because it was not Mr. Mailhot's fault that legal aid took so long to decide on the 11(b) funding approval and ultimately did not approve it, that Mr. Mailhot should be considered not to qualify for enhanced credit for that particular period of delay caused by legal aid.

[74] I would simply say at this point that I see a significant distinction between a pre-sentence report which was ordered by the Court and was acquiesced to by both the defence and the Crown and a unilateral desire on the part of Mr. Mailhot to attempt to bring a s. 11(b) Charter application asking the Court to dismiss the charge because of delay. In my view, while such an application is certainly within the purview of any accused person or offender to attempt to present to a Court, it can hardly be described as a necessary document to assist the Court in sentencing such as a pre-sentence report.

[75] Mr. Mimnagh also referred the Court to the fact that no formal victim impact statement had been provided pursuant to s. 722 of the Criminal Code by Mr. Denton, just as a general submission on sentence, not necessarily related to the subject of enhanced pre-trial custody.

[76] In general reply by the Crown, Ms. Ward submitted that there is no evidence whatsoever to support Ms. Mimnagh's contention that the Court should consider the fact that the suggested jailhouse culture of violence should be considered as a mitigating factor in the commission of this offence by Mr. Mailhot or, for that matter, in the commission of any offence by an inmate upon another inmate.

Crown Position on the Enhanced Credit Application

[77] Ms. Ward referred the Court to the Ontario Court of Appeal decision of R. v. Morris, 2013 ONCA 223, released April 9, 2013, which followed the Summers decision of the Ontario Court of Appeal a month earlier. In that decision, the Ontario Court of Appeal was considering the issue of enhanced pre-trial custody which had been applied for by Mr. Morris to his trial judge. The Court stated at paragraph 15:

While the trial judge concluded that lack of remission on pre-sentencing custody is not of itself a factor warranting enhanced credit, she also reasoned, at para. 54, that while the appellant was not detained in custody under ss. 524(4) or (8), "the conduct of the accused while on bail prior to revocation, if applicable, may be a relevant factor in determining whether to grant enhanced credit." She concluded that, in this case, the circumstances were analogous to ss. 524(4) and (8), and therefore did not justify enhanced credit.

[78] The Court of Appeal agreed with the trial judge.

[79] Further, at paragraph 19 the Court of Appeal stated:

The absence of an order cancelling the prior forms of release did not operate as an absolute bar to the appellant's request for enhanced credit under s. 719(3.1). In determining whether to award enhanced credit, however, the trial judge was required to take into account all the circumstances. Among those circumstances was the fact that the appellant was on bail and bound by a weapons prohibition when he was arrested on the offences for which he was convicted. The trial judge was entitled to take these circumstances into account in deciding whether enhanced credit was justified. We agree with her conclusion that it was not.

[80] Ms. Ward asks the Court, by analogy, to apply the same rationale to the many infractions committed by Mr. Mailhot while in custody awaiting disposition of this charge. In addition, she reminds the Court that Mr. Mailhot was in custody awaiting disposition of outstanding charges on two other counts at the same time as he was serving a sentence. Therefore, although Mr. Mailhot did not seek bail on this s. 268 charge, which, the Crown submits, would inevitably have resulted in a s. 515(9.1) endorsement which would have rendered him ineligible for any s. 719.3 enhanced credit, nevertheless the Court, she argues, is entitled to conclude that he would not have been a likely candidate for release on bail in any event.

[81] Ms. Ward also submits that there is no suggestion in this case that Mr. Mailhot suffered from unduly onerous custodial conditions during his time in pre-trial custody. In addition, she refers the Court to paragraph 125 of the Summers decision where the Court stated:

More importantly, Crown counsel at trial (not counsel on appeal) acknowledged in her sentencing submissions that the respondent deserved credit on a 1.5:1 basis for much of his pre-trial detention. By her reference to the likelihood of early parole for the respondent, she also conceded, in effect, the respondent's good behaviour while in remand custody. Certainly, she did not suggest that the respondent's conduct would in any way disentitle him to earned remission or negatively affect his statutory release and parole eligibility. Before this court, the Crown acknowledges that it is appropriate that some credit be accorded to the respondent for his pre-sentence custody, at the rate of 1:1.

[82] With respect to the defence submissions about the fact that the trial had to be protracted because of the Crown requiring a remand of three months on the first day of the trial, Ms. Ward referred the Court to the trial coordinator's trial sheet which reveals the dates that were suggested when both counsel would be available, as well as the police witnesses, for this trial. She submits that it would appear that the defence had limited available dates and the dates for trial were actually set on July 7, 2011 with a judicial pre-trial taking place on October 27, 2011. Ms. Ward submits that some of the police witnesses who were listed as Crown witnesses and known to the defence counsel at the judicial pre-trial actually did end up being some of the witnesses who testified on the subject of the identification of Mr. Mailhot and Mr. McConville by use of the cell block surveillance videotapes after a voir dire was conducted by this Court and the Court ruled that the Crown could follow that procedure.

[83] In brief reply, Ms. Mimnagh conceded that Mr. Mailhot's Maplehurst internal infraction and disciplinary record which is revealed by Exhibit Number 2 on sentence actually disqualifies him from any consideration by the Court that he could have earned remission between the first one-third of his sentence and the two-thirds mark of his sentence. Therefore, the defence is seeking this enhancement based on the fact that Mr. Mailhot was ineligible for the statutory remission at the two-thirds mark of any sentence that would be served and subsequent parole by virtue of his pre-trial custody. Once again, she refers the Court to paragraph 119 of the Summers decision and relies on that statement of the Ontario Court of Appeal for her application.

Analysis

The Fit Sentence

[84] Sections 718, 718.1 and 718.2 of the Criminal Code states as follows:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[85] I have carefully considered the principles of sentencing, in particular those in s. 718 that refer to the need for denunciation and both specific and general deterrence to other like-minded prospective offenders. I agree with the Crown that an assault of this nature in particular which is committed in a custodial setting is an aggravating factor. The danger of prisoner incitement is always ubiquitous in such a setting and most certainly a prisoner is vulnerable to such attacks by other prisoners given the fact that it is hardly likely that the custodial officers can keep such a close eye on such a large number of prisoners who are occupying a holding cell bullpen that such an assault could be absolutely prevented by that type of surveillance. This is particularly apposite with respect to the toilet area of this cell which was not even covered by the surveillance camera.

[86] I have also carefully considered the proportionality analysis required under s. 718.1 and I am mindful of my findings which I expressly stated in my judgment when I found Mr. Mailhot guilty of this offence. I find that his degree of responsibility for the aggravated assault and consequent injuries that were occasioned to Mr. Denton is most certainly at a lesser degree than that of Mr. McConville.

[87] Specifically, to repeat what I said in my judgment, I find that Mr. Mailhot delivered a single gratuitous, and what appeared to me to be an impulsive kick to the head or face area of Mr. Denton while he lay on the concrete floor of the bullpen in a pool of his own blood, after being both punched and kicked by Mr. McConville. In saying this, I am not minimizing the seriousness of Mr. Mailhot's assault on the already obviously injured Mr. Denton, and that, of course, is exactly why he was found guilty by this Court of the offence of aggravated assault as opposed to assault simpliciter. My reasons for doing so are set out in detail in my September 11, 2012 Reasons for Judgment.

[88] However, I also remind myself that I did not find that Mr. Mailhot was acting as a s. 21(2) party to the repeated assaultive behaviour of Mr. McConville. Nor is there any evidence that he was exhorting Mr. McConville to commit the offence. Other than Mr. Mailhot's single terribly ill-advised and impulsive kick to the person of Mr. Denton, he played no other role in the assault.

[89] As I also said in my judgment, there was no evidence of any relationship between Mr. Mailhot and Mr. Denton back on the Maplehurst range that would lead the Court to conclude that he harboured an animus against Mr. Denton in particular on April 8, 2011. Still within s. 718.1, however, I have most certainly considered the gravity of the offence itself, that is to say an offence of aggravated assault and, quite naturally, I conclude that it ranks high on the scale of gravity in the proportional analysis pursuant to s. 718.1.

[90] I have also considered the contents of the letter written by Mr. Mailhot to the Court and while one must harbour some circumspection about Mr. Mailhot's good intentions for rehabilitation given the state of his criminal record, nevertheless I am prepared to state that he expressed some considerable insight into the need for him to do something to improve his life and hopefully become a productive citizen in our society in the future. Specifically, I note that he is concerned about his mother who has cancer and who has stood behind him through most of his criminal and deviant behaviour as indicated in the pre-sentence report. He points out that he has been in custody since November of 2009 and that he realizes at his still youthful age of 26 that he is missing out on the opportunity to put a proper life together despite his difficult beginnings.

[91] I thought that the most insightful comment written by Mr. Mailhot in his letter was "but I am still young enough to do many things with my life and I am asking you to provide me with a chance to do something positive with my life before I get too old". He has expressed a willingness, both in his letter and also to the pre-sentence report writer, to participate in treatment programs and to be cooperative with his probation officer if he should receive a sentence that will allow him to receive a period of probation after serving the custodial portion.

[92] I have carefully considered the provisions of s. 718.2 of the Criminal Code with respect to the need to either increase or decrease a sentence in proportion to the existence of aggravating and mitigating factors. It is safe to say that there are really no significant mitigating factors to this particular offence committed by Mr. Mailhot. I have already taken into account under s. 718.1 what I found to be his reduced degree of responsibility in the assault committed by McConville and him on the person of Mr. Denton, albeit not as s. 21(2) parties. I agree with the Crown's characterization of the aggravating factors as I have already set out in summarizing the position of the Crown.

[93] I have considered the Crown's submissions on the quantum of sentence and the case of R. v. Anderson (Mercieca), supra, relied upon by the Crown.

[94] In my view, the proper and fit sentence for Mr. Mailhot before I take into account any credit which he should receive for his pre-sentence custody is one of two-and-a-half years.

The Pre-Trial Custody S. 719.3 Enhancement Application

[95] In my view, the most important of the sentencing precedents that were referred to me by both Crown and defence counsel were the Ontario Court of Appeal decisions in R. v. Summers (supra) and R. v. Morris (supra). I have carefully considered the statements of principle by the Ontario Court of appeal in each of these cases.

[96] My analysis has been informed by the statements of Madam Justice Cronk in the paragraphs already reference by both defence counsel and Crown counsel and which I have included in my summary of their respective positions on this issue. In addition, my analysis has been specifically informed by Madam Justice Cronk's statement in paragraph 79 of the Summers decision.

[79] But this arrangement begs the question of when such enhanced credit may be granted. It is not revelatory of the intended scope of the word "circumstances" in s. 719(3.1). In my view, the structure or sequencing of ss. 719(3) and (3.1), coupled with the introductory language of the latter section, simply reveals the intention that more offenders will be eligible for credit up to a maximum of 1:1, than for enhanced credit up to a maximum of 1.5:1. Stated differently, the fact that crediting to a maximum of 1.5:1 is an expressly permitted exception to 1:1 crediting does not mean that the circumstances warranting such enhanced credit must themselves be exceptional.

[97] I have also carefully considered the effect of Madam Justice Cronk's statement in paragraph 117 of Summers on the issue of the relevance and importance of the absence of remission and parole eligibility to prisoners who are serving pre-trial custody:

[117] That said, nothing in these reasons should be understood as suggesting that enhanced credit will be available under s. 719(3.1) to every remand offender on the basis of the absence of remission and parole eligibility. There must be some basis in the evidence or the information before the sentencing judge to support the conclusion that this factor merits enhanced credit for a particular offender in a given case.

[98] At paragraph 66 Madam Justice Cronk stated:

[66] I note, first, the obvious but important point that s. 719(3.1) is silent as to the situations that will justify enhanced credit for pre-sentence custody. As others have observed, the word "circumstances" in s. 719(3.1) is not qualified by any modifying or limiting language. Nor is it defined under the Act. As indicated by Chief Judge Cozens in R. v. Vittrekwa, 2011 YKTC 64, 275 C.C.C. (3d) 193, at para. 46, none of the words "exceptional", "unusual" or "special" (nor, I would add, any of the words "compelling", "extraordinary", or "rare") is used in s. 719(3.1) to constrain or limit the circumstances that may justify enhanced credit.

[99] At paragraph 118 of Summers Madam Justice Cronk stated:

[118] In Vittrekwa, the court held, at para. 77, that enhanced credit under s. 719(3.1) was available on evidence that the accused would be deprived of an opportunity to earn remission to which he would otherwise be entitled while in remand custody. The decision in Stonefish is to the same effect. I endorse and underscore the following comments of Steel J.A. in Stonefish, at paras. 81-83 and 85:

Loss of remission and statutory release may be individual circumstances justifying enhanced credit where the accused can bring evidence to the court that, had he or she been a sentenced inmate, they would have most probably received remission and/or statutory release. Just because the circumstance will be applicable to many, if not most, accused does not mean it cannot be a circumstance relevant to an individual accused.

A trial judge has discretion to grant or not grant the enhanced credit. For example, an otherwise eligible accused who intentionally delayed proceedings by continuously discharging counsel, or an accused who created delay by not cooperating with probation officers during the preparation of the pre-sentence reports, or an accused who refuses to participate in treatment programs may not receive enhanced credit despite the loss of earned remission or may not receive any credit at all, depending on the discretion of the sentencing judge. All the circumstances should be taken into account.

But, on the other hand, if the accused can show that his or her behaviour on remand was such that they would have received remission had they been a sentenced prisoner, that is a factor that a court may take into account when exercising its discretion to award enhanced credit for [pre-sentence custody].

Based on evidence specific to the particular offender's behaviour while on remand, the loss of remission is transformed from a universal characteristic into an individual one.

[Emphasis added; Citations omitted.]

[100] Ms. Mimnagh did of course concede that based on the evidence of Mr. Mailhot's behaviour while on remand in Maplehurst during the period of time since May 17, 2012 when he became eligible for his pre-trial custody to be applied to his eventual sentence pursuant to s.719 and/or s.719.3 he rendered himself ineligible for earned remission. However, I most certainly accept the defence submission and I find it to be in conformity with the Ontario Court of Appeal's statement of principles on this issue that Mr. Mailhot is still eligible for consideration of enhanced credit based upon the court's assessment of all of the relevant circumstances that existed during his period of pre-trial custody between May 17, 2012 and this sentencing date of June 27, 2013.

[101] In particular I have informed my analysis by the words of Madam Justice Cronk in paragraph 119 of the Summers decision, which, although already quoted above, I will again set out for emphasis:

[119] I conclude where I began. In my view, properly construed, s. 719(3.1) of the Code permits a sentencing judge to credit pre-sentence custody up to a maximum of 1.5:1 for each day spent in pre-sentence custody where, on consideration of all relevant circumstances, such credit is necessary to achieve a fair and just sanction in accordance with the statutory scheme for sentencing and punishment set out in the Code. On a proper record, the relevant circumstances that may justify this enhanced credit include ineligibility for remission and parole while in remand custody.

[102] For greater clarity I wish to emphasize, because of submissions sometimes received from counsel to the contrary, that the Ontario Court of Appeal has not, in my view, in Summers or in Morris stated that it is axiomatic that presentence custody credit up to the maximum of 1.5 to 1 because of the ineligibility of the prisoner for remission and parole while in remand custody ought to be credited to him/her. Rather, that is simply a relevant circumstance that must be considered in the context of the totality of all of the relevant circumstances of that particular offender's pre-trial custody. Indeed, at paragraph 15 of the Morris decision, the Ontario Court of Appeal stated:

[15] While the trial judge concluded that lack of remission on pre-sentencing custody is not of itself a factor warranting enhanced credit, she also reasoned, at para. 54, that while the appellant was not detained in custody under ss. 524(4) or (8), "the conduct of the accused while on bail prior to revocation, if applicable, may be a relevant factor in determining whether to grant enhanced credit." She concluded that, in this case, the circumstances were analogous to ss. 524(4) and (8), and therefore did not justify enhanced credit.

[103] The Court of Appeal in Morris agreed with the trial judge's statement that lack of remission on presentence custody is not of itself a factor warranting enhanced credit.

The Circumstances In Mr. Mailhot's Case

[104] First of all, with respect to the defence submission that the remand of this trial from the first day to the second day, largely occasioned by the fact that the Crown decided on the morning of the trial not to call the victim of this assault, Mr. Denton as a witness, resulting in an additional period of pre-trial custody for Mr. Mailhot which would have otherwise have been avoided, I respectfully disagree. I agree with the Crown's argument which has been outlined by this court in my summary of the position of the Crown on the issue. Specifically I find that it very difficult to decide whether or not any more or less trial time would have been used if Mr. Denton had indeed testified and been able to recall the events sufficiently so that the Crown did not have to resort to the voir dire which was conducted on the issue of whether or not the custodial officers could testify with respect to the identity of the persons who had committed the assault upon Mr. Denton in the bullpen cell. Presumably Mr. Denton would have testified at some length in-chief and would have of course been cross-examined at some length by both defence counsel.

[105] In addition, I accept the Crown's submission that most, if not all, of the custodial officers who did actually testify were listed as potential witnesses in disclosure to the defence and may well have testified, perhaps to a lesser degree, had Mr. Denton himself been able to testify. I find that this entire issue is incapable of concrete quantitative analysis on the issue of whether or not I should find that that circumstance is one that should result in the court enhancing the pre-trial custody credit of Mr. Mailhot by either the entire period or a portion of the period of time that was consumed by the remand.

[106] I agree with the Crown that the pattern of Mr. Mailhot's behaviour as manifested by the Maplehurst records which became Exhibit #2 on his hearing, although not disqualifying him by any means from consideration for enhancement for his pre-trial custody, nevertheless militates against the merit of enhancement. I also agree with the Crown that although Mr. Mailhot was never denied bail on this charge after May 17, 2012 when he became eligible to apply for bail, nevertheless I conclude that the combination of the offences which he committed while in custody for which he had just finished sentences, combined with his behavioural track record within the institution even up to that date and certainly subsequent to May 17th would have very likely resulted in his being denied bail.

[107] For all of these reasons I find that Mr. Mailhot has not satisfied me on his onus of a balance of probabilities that he should receive any enhancement of his pre-trial custody credit of the basic position of 1:1 contemplated by s. 719 of the Code. I emphasize however, that I am not in any way inclined to reduce that credit and therefore I will apply each and every one of the days that Mr. Mailhot has spent in pre-trial custody since May 17, 2012 to the sentence of 2½ years which I have found to be a fit and proper sentence. Therefore, he is sentenced at this time to time served plus 16 months and 20 days custody. In addition, I place Mr. Mailhot on probation for a period of 3 years on the following conditions:

• Keep the peace and be of good behaviour;

• Appear before the court when required to do so;

• Notify the court or the probation officer in advance of any change of name or address;

• Promptly notify the court or the probation officer of any change of employment or occupation;

• Report within 3 working days after release, in person, to a probation officer as directed and, thereafter, be under the supervision of a probation officer or a person authorized by the probation officer to assist in the supervision of the offender, and report at such times and places as that person may require;

• Abstain from the purchase/possession/consumption of illegal drugs except in accordance with a medical prescription;

• Not to associate, contact or hold any communication with Justin Denton and Thomas McConville;

• Not to attend at or be within 100 metres of the place of residence/place of employment/school (if known to you) or any other place Justin Denton and Thomas McConville are known to be;

• And in addition:

  1. Sign all necessary releases to allow your probation officer to monitor compliance with any counselling/treatment programs you are directed to attend;

  2. Not attend any establishment where alcohol is sold primarily;

  3. Within 30 days of your release and at the direction of your probation officer and if directed, you shall complete a drug and alcohol assessment and comply as recommended by your probation officer as directed by your probation officer specifically to discuss with your probation officer after the assessments whether or not they may recommend absolute abstinence;

  4. Reside at a residence approved of by your probation officer and do not move without prior approval by your probation officer.

[108] In addition to the probation order, I made an order under s. 743.21 that Mr. Mailhot, while in custody serving this sentence, would not communicate directly or indirectly with Justin Denton or Thomas McConville except in accordance with the requirements that may be incidental to his status as an inmate in any correctional facility.

[109] Aggravated assault is in the primary category of offences under the DNA scheme of the Criminal Code in s. 487. Ms. Mimnagh made no submissions with respect to a DNA sample being grossly disproportionate to the privacy interests of Mr. Mailhot and, thus, I order a sample of his DNA to be taken pursuant to s. 487.051.

[110] In addition, I made a prohibition order for life, pursuant to s. 109 of the Criminal Code.

[111] Finally, at the request of the defence and consent of the Crown, I exercised my discretion pursuant to s. 737 of the Criminal Code and waived the victim fine surcharge on this s. 268 conviction.

[112] This concludes my reasons for and computation of the Court's sentence which was imposed upon Matthew Mailhot on June 27, 2013.

[113] I wish to thank both Crown counsel and Ms. Mimnagh for their very thorough and detailed submissions, especially with respect to the s. 719(3.1) enhancement of pre-trial custody issue.

Released: August 8, 2013

Signed: "Justice F.L. Forsyth"