Ontario Court of Justice

Date: 2014-01-31

Between:

Her Majesty the Queen

— and —

Prince Asante

Before: Justice K. Caldwell

Reasons for Judgment released on: January 31, 2014

Counsel:

• Ms. Sophina James, counsel for the Crown
• Mr. Tyler Smith, counsel for the accused Mr. Prince Asante

Caldwell J.:

[1] Mr. Asante pleaded guilty at the end of his preliminary hearing to a number of "guns and gangs" related charges. The parties made a joint submission regarding the appropriate sentence; however, they did not agree on the credit to be granted for pre-trial custody.

[2] For the reasons that follow, I conclude that Mr. Asante should be granted approximately 1.25 days for each day he has served. He has been in custody for 25½ months as of today's date. I give him credit for 32 months time served. As the joint submission was for a 4½ year (54 month) sentence, that leaves him with 22 months left to serve. This sentence means that he will serve his remaining time within the reformatory rather than the penitentiary system.

Background Facts

[3] Mr. Asante was arrested along with a number of other individuals on firearm, drug and criminal organization charges. These charges allegedly were committed over an extended period of time in both Hamilton and Toronto. At the end of a lengthy preliminary hearing, Mr. Asante chose to resolve his charges and pleaded guilty to seven offences that arose from a specific incident in Hamilton.

[4] Mr. Asante had driven to Hamilton from Toronto along with four of his friends. Once there, the group split up. Two of the young men remained in the car with Mr. Asante and the other two headed elsewhere. Mr. Asante's group ultimately stopped outside a set of townhouses on Roxborough Avenue. They all got out of the car and, for some reason, the other two young men began taking photographs. At that point, someone began shooting at the group, hitting one of the young men in the foot. Chaos followed, and the men fled to a nearby 7-11 convenience store. Once there, they called both 911 and one of the original members of their group.

[5] Mr. Asante then left his two friends, and met up with the other two members of the original group. The three men drove back to the Roxborough site. Mr. Asante was still the driver. One of the men took a gun out of a hidden compartment in the car.

[6] In the meantime, a police officer responded to a call about a disturbance on Roxborough. As he drove in behind the townhouse complex, he saw the three men in the car. He got out of his cruiser and approached on foot. As he got closer, he could smell burning marijuana. The three men fled but the officer managed to catch Mr. Asante. The officer then returned to Mr. Asante's car and reached in to turn off the engine. He saw a fully cocked, prohibited, loaded .45 calibre handgun on the driver's side floor. The serial number had been removed.

[7] Mr. Asante was arrested and searched at the station. 5.3 g of crack cocaine was found concealed between his buttock cheeks and several hundred dollars in cash. He admitted during his guilty plea that the drugs and money were connected to trafficking. At the time of his arrest, he was on two releases, one forbidding possession of weapons and the other forbidding possession of both weapons and drugs.

Appropriateness of a 4½ Year Global Sentence

[8] I will be brief in my reasons for the 4½ year sentence (prior to the dead time deduction) as it is a joint position and certainly within the appropriate range.

[9] On the one hand, the facts justify a significant penitentiary sentence given the amount of crack, the trafficking component, the illegal firearm, the fact that it was fully loaded and altered, and that both the gun and the crack were in Mr. Asante's admitted possession while he was under two court orders not to have weapons or drugs.

[10] On the other hand, Mr. Asante deserves the mitigating credit of a guilty plea, albeit not one at the earliest opportunity. His plea does not eliminate the need for a trial given that his co-accused are now before the Superior Court but his absence from the trial will shorten the proceeding to some degree. Further, his plea is a reflection of his remorse and is thus to his credit.

[11] Mr. Asante is still young, only twenty-three, and his criminal record is very minimal. He has one entry for failure to obey a court order and fail to comply with a recognizance. That conviction pre-dated his arrest on these charges by approximately one month. He received 1 day in custody on both charges in light of nineteen days pre-trial custody. His sentence on the charges before me will be his first sentence of any substantial jail time.

[12] Upon balancing the seriousness of his offences with his youth, minimal record and guilty plea and upon taking into consideration the fact that this is a joint submission, I find that 4½ years, prior to dead time consideration, is the appropriate global sentence.

The Law Regarding Pre-trial Custody Credit

[13] It is well known that offenders were routinely granted credit on a 2:1 basis until very recent legislative amendments. The justification for such credit stemmed from the poor conditions in many short term remand facilities, the lack of programming in such facilities, and the inapplicability of various remission and parole eligibility credits to pre-trial custodial time. The old legislation allowing for such credit was broadly drafted and did not institute a numerical ceiling on the amount of such credit.

[14] The amendments state that the Court can now grant such credit up to a maximum of 1 day credit for each day spent in pre-trial detention but allow for an increase to 1.5 days for each day spent "if the circumstances justify it" except in certain specific situations in which case the offender is barred from receiving the enhanced credit[1].

[15] Debate ensued regarding the appropriate circumstances that could justify the new allowable 1.5 enhancement. Did the previous justifications based on the generally accepted harsh conditions of pre-trial detention and lack of remand and parole credit amount to appropriate "circumstances" or must there be exceptional or unique circumstances to justify such enhancement? Further, if the previous justifications allowed for the new 1.5 enhancement, did that mean that such credit should be given to all offenders other than those who fell within the narrowly delineated exceptions?

[16] Fortunately this issue now has begun to be addressed by the appellate courts. The broadest of those decisions in Ontario is R v Summers[2], released last spring. The Court of Appeal made it crystal clear that the previous justifications are still applicable under the new enhancement legislation and that the offender does not need to demonstrate that his circumstances are "exceptional". The Court also stated, however, that the absence of remission and parole eligibility does not give every remand offender entitlement to enhancement and thus that there must be evidence or information before the sentencing judge to justify the enhancement for that particular offender[3].

[17] The offender is statutorily barred from receiving the enhanced credit, however, if he was detained due to his previous record or because he committed his offences while on release for other offences[4]. As it is impossible to read the detaining justice's mind, the justice must indicate on the record if the offender was detained due to his criminal history[5]. Detention that flows specifically because of offences committed while on a previous release leads to a so-called "524 application" by the Crown – the accused's previous release on his old charges is cancelled and the detention order then substitutes for the old release[6].

[18] What if the Crown failed to bring a 524 application, even though the circumstances warranted it? Further, what if the accused failed to address bail? The Crown could still bring the 524 application in the latter circumstance but in practical terms it is unlikely that the Crown would do that until the accused decided to deal with bail.

[19] Such a situation was addressed by the Court of Appeal in R v Morris[7]. The Court held that though the offender was not statutorily barred from receiving enhanced credit, the fact that his circumstances would have warranted a section 524 application was a relevant consideration even if the Crown had failed to bring the section 524 at the appropriate time. In that case the Court upheld the trial judge's decision to deny enhanced credit.

Application of the Law to These Facts

[20] The Crown concedes that a 1:1 credit is warranted but disputes any enhanced credit. As I indicated at the outset, I find that some enhancement is in order but not up to the maximum of 1:1.5. The reason that I find that it is not appropriate to allow the maximum is that Mr. Asante's circumstances are very similar to those in the Morris[8] case. Mr. Asante was on two prior releases when he was arrested on these charges. A section 524 application was never brought, perhaps because Mr. Asante never sought bail. Undoubtedly it would have been successful if it had been brought and then this issue would not even be before me as Mr. Asante would be statutorily barred from receiving enhancement. He is not barred but pursuant to the reasoning in Morris I still find these facts relevant to the overall determination of his entitlement to enhanced credit and find that these circumstances reduce the amount of the appropriate enhancement.

[21] I find that some enhancement is warranted, however, given other considerations. First, Mr. Asante has been in pre-trial detention for a very long time, over two years. If such detention had been served post sentence within the provincial system, Mr. Smith contends that Mr. Asante would have been entitled to statutory remission on that part of his sentence. I find that some enhanced credit is warranted to reflect the unavailability of the statutory remission given that the time was served in pre-trial detention.

[22] Next I turn to Mr. Asante's personal experiences while in custody. Sgt. Dave Walker, one of the security managers at Maplehurst, was called to give evidence regarding Mr. Asante's time at that institution. I found his evidence to be of limited assistance given that Mr. Asante only did 18 days of his 25½ pre-trial months at Maplehurst. He spoke of Mr. Asante's various misconduct charges but I found that this evidence was neutral at best given that apparently such charges could arise even when the inmate was not the perpetrator or instigator of the incident and given that the standard of proof was not clear.

[23] Of greater relevance was the 293 days, almost half of his pre-trial incarceration, which Mr. Asante spent at the Don Jail. Mr. Asante testified that he was frequently triple bunked and that the physical surroundings were dirty. Given the Don Jail's notorious reputation, I have no difficulty in accepting this evidence as fact. Fortunately the Don closed its doors permanently this past fall. In fact, Mr. Asante has the dubious distinction of being one of the last inmates to be housed in this institution. I accept that his remand circumstances were particularly difficult given his time there and I find that he deserves some enhanced credit as a result.

[24] Further, I find that some enhancement is warranted given his frequent unexplained moves. Over the course of his two years, he was incarcerated in seven different institutions. Some of those moves were due to the necessity of relocating him temporarily to jails close to London and Brantford given court appearances on his other outstanding charges – those relocations should not factor into the enhancement calculus. Still, he was also moved between the Don, Metro West, Maplehurst and the East Detention Centre. The Crown effectively elicited from him that such moves had positive aspects at times as old problems could be left behind. I accept, however, his testimony that such moves overall were negative, disruptive, and stressful particularly given that the correctional authorities are not required to give him notice of or any explanation for the moves. Further, I accept his testimony that each move required that he prove himself once again amidst a new group of inmates. I find that such moves increased the onerousness of his pre-trial detention, particularly in light of his young age and his lack of prior history in the correctional system.

[25] For all of these reasons, I find that enhanced credit as outlined at the beginning of this judgment is warranted in this instance.

Released: January 31, 2014

Signed: "Justice K. Caldwell"

Footnotes

[1] See sections 719(3) and 719(3.1) of the Criminal Code

[2] 2013 ONCA 147, [2013] O.J. No. 1068 (Ont. C.A.)

[3] Supra, at para. 117

[4] Section 719(3.1) of the Criminal Code

[5] Section 515(9.1) of the Criminal Code

[6] Sections 524(4) and (8) of the Criminal Code

[7] 2013 ONCA 223, [2013] O.J. No. 1583

[8] Supra