Court Information

Court: Ontario Court of Justice, Old City Hall - Toronto

Between: Her Majesty the Queen — and — Ronald Doyle

Counsel:

• R. Law, for the Crown
• J. Erickson, for the Offender

Heard: June 23 and 29, July 29 and September 4, 2015

Reasons for Sentence

Justice Melvyn Green

A. INTRODUCTION

[1] Ronald Doyle was carrying a loaded handgun in a public park on October 12, 2014. He was arrested the same day. He pled guilty to possessing a weapon for a purpose dangerous to the public peace and to unauthorized possession of a loaded restricted firearm, contrary to ss. 88(1) and 95(1) of the Criminal Code. He was detained for almost 11 months.

[2] The offender's crimes – particularly that involving the carriage of a loaded firearm in a public park – are very serious. The Crown says they attract an effective penitentiary sentence of three years, less credit for the lost opportunity for early release associated with the offender's 325 days of pre-sentence custody. Calculated at a ratio of 1.5:1 (the equivalent, then, of 487 days, or 16 months), a further period of 20-months incarceration is said to be warranted. Defence counsel suggests that two years is a nominally fit custodial disposition – if, and only if, it is then reduced by both the extension of 1.5:1 credit for the offender's pre-sentence detention and further mitigation attributed to the difficult nature of the offender's conditions in remand. Crown and defence counsel rightly acknowledge that the penalty for the "weapons dangerous" offence should run concurrently with the s. 95(1) offence as they arise from the same transaction and share essential elements. Assuming a sentence of no more than two years, neither counsel objects to the propriety of imposing a subsequent term of probation.

[3] The "Purpose and Principles of Sentencing" and the rules controlling sentence calculation, as set out in ss. 718 through 719 of the Criminal Code, govern the process of determining an appropriate sentence. The application of these principles is, as always, a case sensitive exercise of judicial discretion. The Supreme Court of Canada, affirming the decision of the Court of Appeal, recently struck down the three-year minimum penalty for the s. 95(1) offence to which the offender has pled guilty: R. v. Nur (2015), 2015 SCC 15, 322 C.C.C. (3d) 149 (S.C.C.); affg. (2013) 2013 ONCA 677, 303 C.C.C. (3d) 474 (Ont. C.A.). The judicial opinions authored at both appellate levels offer substantial guidance as to the salient considerations and appropriate range respecting offences such as those committed by the offender absent, as now obtains, a statutorily-mandated sentencing floor. More difficult is the question that arises by virtue of the offender's assertion that he suffered hardships while in remand custody that entitle him to relief beyond or in addition to the compensation for lost remission captured by the 1.5:1 metric. The circumstances that bottom this latter claim and, if established, their mitigative value are matters of evolving but still nascent jurisprudence.

B. EVIDENCE

(a) Circumstances of the Offence

[4] Mid-afternoon, October 12, 2014. A 911 call alerted the police to a man carrying a handgun in Grange Park in downtown Toronto. Officers attended and quickly located a loaded 32-calibre, five-shot revolver on Ronald Doyle, the offender. He and his girlfriend Chantelle were arrested without incident and transported to a police station. He there provided an explanation for his conduct, amounting to a fully incriminating statement. In essence, the offender advised that he and Chantelle were confronted by a belligerent couple at a shelter the night before. The man attacked the offender without provocation and later threatened to kill him. Genuinely frightened, the offender armed himself with the handgun and carried it to the park, intending to protect himself lest his adversaries attend and he was subject to renewed aggression. The Crown takes no substantive issue with the offender's statement to the police. In narrating the events to a clinical psychologist, the offender added that he felt "like an idiot for getting a gun … it's all [my] fault".

[5] Crown and defence counsel agree that the revolver was an operable firearm and that the offender was not licensed or otherwise authorized to possess it. The police released his girlfriend the same day. The offender was held in remand custody.

(b) The Offender's Antecedents

[6] The offender is 35 years of age. He had a difficult upbringing. His parents separated when he was two or three and he spent most of the next several years under the care of the CAS. From about six until the age of 18 the offender's primary caregiver was a friend of his father, a man with whom he remained close until his death in 2009. Both his parents were drug abusers and his father's adult life was punctuated by periods of incarceration. The offender has no contact with his father; his relationship with his mother is only marginally closer. His stepbrother, then a year older, committed suicide when he was 16, with predictably traumatic consequences for the offender.

[7] The offender completed part of grade 10. He worked at a number of jobs until 2010, and has since survived primarily on welfare. He participated in employment classes and completed the requisite training for a forklift and warehouse management certificate prior to his arrest. The offender had been in relationship with Chantelle since March 2014. They resided at a shelter, along with Chantelle's five-year-old daughter, for the month and a half prior to their arrest.

[8] The offender began using marijuana and alcohol in his mid-teens. He smoked marijuana daily until he was about 28. He now smokes only occasionally. He drank on a regular basis until 2004 when, at about the age of 25, he was diagnosed with Type I Diabetes. He is dependent on insulin and only very rarely consumes alcohol. The offender has never participated in a drug or mental health counseling program.

[9] Unsurprisingly, the offender has a criminal record. His adult convictions include several drug possession (not trafficking) and property-related offences. He was also convicted of a number of assaults, culminating in a robbery conviction in August 2000 for which he received a two-month sentence, his longest previous custodial disposition. More surprisingly, the offender has no recorded conflict with the criminal justice system since a marijuana possession conviction in early 2003, and more than 15 years have passed since his last conviction for an offence of violence. He was not subject to a weapons prohibition order at the time of the instant offences.

(c) The Offender's Clinical Assessment

[10] A reputable forensic psychologist, assisted by a psychometrist, clinically assessed the offender while he was in remand custody. The Crown did not challenge the methodology or conclusions of the psychologists' report. Based on objective assessments, the offender's general risk for future involvement in criminal activity was rated as "low to average" or "moderate". His risk for future violence was no greater than "moderate". His profile, considered valid, "suggests that his temper is within the normal range and without any apparent difficulty". He "did not meet the criteria for psychopathy"; indeed,

he has no grandiose sense of self-worth, … he demonstrates no pathological lying, he has remorse for his actions, his affect is not shallow, he has empathy, he is not irresponsible … and [he] accepts responsibility for his actions.

The report "summary" reads, in part:

Mr. Doyle's personality profile did not reveal significant clinical concerns. Although he generally has a negative self-perception, he is autonomous and he reportedly has an average level of stress and support. Albeit that he reacts outwardly when angry, he does not experience affective dyscontrol problems and he does not have a history of self-harm. … His level of cognitive functioning, when compared to his peers, is considered below-average.

Although there were still "substance abuse concerns", the offender's scores on a related instrument "suggest a low level of problems". The results of a further psychometric inventory "indicate that his outward expression of anger is below average". The report concludes that despite a number of static and dynamic risk factors, the offender "does not appear to be a criminally entrenched individual".

(d) The Offender's Remand Custody

(i) Introduction

[11] As already noted, the offender was in remand custody for nearly 11 months. This is a very lengthy period of pre-trial detention, particularly as there has been no trial and the offender fully admitted his culpability during a police interview on the day of his arrest. The delay, I am told, relates to protracted third-party litigation respecting the constitutionality of the three-year minimum sentence then statutorily prescribed for the s. 95(1) offence with which the offender was charged. That dispute was not ultimately resolved until the Supreme Court's decision in R. v. Nur, supra, rendered in mid-April of this year, striking down the provision. The offender, through counsel, then signalled his intention to plead guilty to offences arising from the impugned transaction. That plea was entered on June 23, 2015. Sentencing was several times adjourned to complete evidentiary hearings and argument.

[12] The offender complains of two personal hardships he experienced during his prolonged pre-trial detention. First, he says, he was subject to an inordinate and inexcusable number of "lock-downs". Second, he says that his diabetes was inadequately managed during this period, resulting in a number of painful medical complications. The offender was extensively cross-examined on an affidavit he filed respecting these concerns.

[13] In response, the Crown called both the remand facility's security manager and the manager of clinical services. To some degree, the two sides spoke past each other, the offender addressing personal, experience-based frustrations while the detention centre personnel spoke more of general institutional practice, collective data and assumptions about the behaviour of diabetics. The direct conflicts were relatively minor. The offender, relying on memory and his penciled record of daily vexations, may well have made some factual errors in his testimony. Nonetheless, I found him to be a candid and honest reporter of his own experiences in remand custody. He was not, in my view, subject to any intentional abuse or mistreatment, but his chronic difficulties were profoundly exacerbated by institutional resource limitations or inadequate clinical attention. In short, and irrespective of any claim to compensation for lost remission, the offender's pre-trial detention was qualitatively oppressive and medically compromising. Given his personal vulnerabilities, I find that the remand hardships and privations endured by this offender were substantially more onerous than those typically experienced by remand inmates.

(ii) The Lock-Downs

[14] The offender was detained at the Toronto South Detention Centre (TSDC), a relatively new custodial facility housing male criminal defendants awaiting trial. In the ordinary course, the offender, like other remand prisoners, is released at 8:30am each morning from his two-person cell and allowed onto the "range", a communal social and recreational area shared by all of those on his unit. Again in the ordinary course, the prisoners are returned to their cells at 9:30pm every evening. However, during "lock-downs" inmates are confined to their cells 24 hours a day, with brief exceptions (not always respected) for showers (no less frequent than once every three days) and visits (limited to 20-minutes twice a week). Physical and mental deprivation aside, lock-downs entirely inhibit the offender's capacity to physically exercise, an important component of proper diabetes management.

[15] The offender maintained a log of his lock-downs. By his reckoning, he had been subject to 71 full-day lock-downs by the time he testified on July 29th. The TSDC's count of the offender's full-day lock-downs then totaled 68 days. The difference is insignificant. By either measure, the offender had been confined to his cell 24 hours a day for approximately one of every four days he had been in remand custody up to the end of July. This pattern appears to have ramped-up through August with the offender reporting 13 further full-day lock-downs that month, and a large number of partial lock-downs on the intervening days. The TSDC administration did not have an opportunity to review the offender's August data, but Crown counsel fairly took no objection to their admission.

[16] But for one very brief period premised on a later-withdrawn allegation of misconduct, the offender's confinement in his cell was not the result of disciplinary procedures or administrative segregation or any behaviour attributable to him. Rather, as explained by the TSDC security manager, the lock-downs were the result of general "incident reports". On one occasion a guard somehow misplaced a key and the entire facility was locked down for a week. No explanation of any other incident reports necessitating lock-downs was advanced. Having to endure approximately 70 full days (and likely significantly more) of complete confinement in a prison cell is extremely harsh, and more so where, as here, it is unrelated to any confirmed allegation of misbehaviour on the part of the offender and otherwise unexplained.

(iii) Managing the Offender's Diabetes

[17] The offender has a chronic medical condition: Type I Diabetes. He depends on injections of insulin to maintain his health, his well-being and, ultimately, his life. In custody, the effective management of his condition turns primarily on two factors: diet and the timely injections of insulin. Even in custody, the offender has some control over his diet. The timely administration of insulin falls entirely to TSDC personnel.

[18] The evidence before me makes clear that Type 1 Diabetes is notoriously difficult to manage and complicated by the need for current-time patient-specific treatment. Constant monitoring and carefully scheduled and measured injections, closely related to mealtimes, are essential. Profoundly or repeatedly inadequate treatment can lead to catastrophic consequences, including heart and kidney failure, blindness and, not uncommonly, nerve damage resulting in amputation. In the offender's case, blood sugar levels exceeding 12.0 mmol/L cause nausea, dizziness, migraine headaches, pain and swelling in his legs and numbness and pain in his extremities. The offender "often felt very sick" while in remand custody.

[19] As medically required, the offender's blood sugar levels were routinely monitored by the TSDC. Although it is difficult to maintain ideal blood sugar levels, it is easier to do so in a controlled setting such as a remand facility than in the community. Nonetheless, Ministry records of the many hundreds of Glucometer readings preceding July 29th indicate that on most of the occasions for which documentation was tendered the offender's blood sugar levels substantially exceeded 12. Not infrequently, they were well above 20. They were only rarely within the before- and after-meal medically prescribed ranges. The offender complained about his treatment and sought the intervention of the Ombudsman's Office.

[20] The offender agreed that there were about a half-dozen times, perhaps a few more, when he refused insulin injections. Sometimes, he explained, the only needles available bore a larger gauge than those with which his insulin was ordinarily injected and that, in the offender's experience, caused pain and "bleed outs" and left welts on his body. On the other occasions (usually those in which he was transported early to or returned late from court), the offender was concerned that the failure to administer the injections in timely conjunction with his meals would compromise his blood sugar levels leading to painful and potentially dire consequences. Each refusal undoubtedly contributed to high glucose scores the following day, but these occurrences only account for a miniscule percentage of his excessive readings.

[21] The injection management difficulties associated with the offender's remand appearances (of which there appear to have been more than thirty) were exacerbated by occasions when insulin injections were not available at the courthouse. While the TSDC generally retained the services of an agency to administer insulin while the offender was in the court's holding cells, there were still times when the agency failed to honour its obligations or, in any event, the offender did not receive a necessary or timely injection.

[22] The TSDC is not unfamiliar with the management challenges presented by diabetic inmates. The facility endeavours to provide an appropriate diet, supplemental snacks, routine blood sugar level monitoring and injections coordinated, as proper treatment demands, with the intake of meals. However, the care afforded the offender fell below that which his particular circumstances required. Injections were sometimes too early and sometimes too late to maintain medically appropriate glucose levels. Transport to and from court interrupted the timely delivery of injections. The absence of appropriate equipment and the frequent occurrence of complete lock-downs effectively erased even the possibility of physical exercise. The TSDC administration hypothesized that the offender's elevated glucose levels were due to his consumption of sugary snacks obtained through canteen procurements. The offender's responses to this line of cross-examination satisfy me that these purchases were made on behalf of other inmates or used as currency in the prison economy. They were not, I find, part of the offender's caloric intake.

[23] As earlier noted, I find no intentional mistreatment of the offender's chronic diabetes. That said, I accept that the offender's 11 months in pre-trial custody were extremely difficult, that they included periods of physical discomfort and pain associated with a diabetes management protocol that failed to adequately respond to his medical needs, and that his own conduct did not significantly contribute to the adverse consequences he suffered.

C. ANALYSIS

(a) Introduction

[24] In the instant case, two questions need be answered in the process of formulating an appropriate sentence. The first, consistent with the "fundamental principle" of sentencing, requires crafting a "fit" disposition that, as directed by s. 718.1, is "proportionate to the gravity of the offence and degree of responsibility of the offender". As said by Chief Justice McLachlin in Nur, supra, at para. 43 (echoing many predecessor decisions of the Supreme Court),

imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime.

The second question, for which even a conceptually satisfactory answer is far less settled, is whether the determination of a proportionate sentence is influenced by the quality of this offender's pre-sentence custody and, in particular, the hardships he endured as a remand inmate at the TSDC. To be clear, the quantitative unfairness attending the offender's pre-trial detention is not at issue: Crown and defence counsel agree, as do I, that quantitative parity with similarly situated accused persons who were released on bail (rather than detained) pending their trials can be achieved by nominally ascribing 1.5 days to each of the approximately 325 days the offender was in remand custody, and then deducting the mathematical result (some 487 days, or 16 months) from an otherwise fit sentence. The residual question, then, pertains only to the mitigative effect, if any, of the qualitative hardships borne by the offender during his pre-trial detention, not the duration of the detention itself.

(b) The Proportionate Sentence

[25] The offender's transgressions warrant a significant custodial disposition. As said by the Court of Appeal in R. v. Nur, supra, at para. 206,

Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in … conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.

This emphasis must not, of course, entirely eclipse the individual circumstances of the offender and the offence, appropriate consideration of the offender's prospects of rehabilitation, or the principle of restraint in the imposition of a sentence of imprisonment. (See, for ready example, the Supreme Court's compendium of sentencing principles and factors in its judgment in R. v. Nur, supra, at paras. 40-41.)

[26] The facts that define the offender's crimes invite comparison with those that attracted close attention at both appellate levels in R. v. Nur, if only because the courts' reasoning now serves as the plinth on which fresh s. 95(1) sentencing determinations must rest. As summarized by the Court of Appeal in 2013, at paras. 11-16, supra:

The events underlying the charge [against Nur] began at a community centre located in the Jane and Finch neighbourhood of Toronto. …

Early one winter evening, a young man entered the community centre and spoke to a staff member. He advised the staff member that he was afraid of someone who was waiting outside the community centre to "get him". The staff member saw a person lurking outside who looked very threatening. The staff member … called the police.

When the police arrived at the community centre, they saw four men standing at one of the entrances. The appellant [Nur] was one of the four men. As one of the officers approached the group, all four men ran in different directions.

The police officer chased the appellant. The appellant … appeared to be concealing something. The officer was rapidly closing ground on the appellant when he saw the appellant throw something away. …

After arresting the appellant, the officer returned to the area where he had seen the appellant throw something to the ground. The officer found a loaded handgun under a parked car. The gun was a fully operable 22-calibre semi-automatic, equipped with an oversized ammunition clip. There were 23 bullets in the clip and one in the chamber. The gun could fire all 24 rounds in 3.5 seconds. The gun is a prohibited firearm as defined in the Criminal Code.

The trial judge was not satisfied beyond a reasonable doubt that the appellant had anything to do with the events that led to the police being called to the community centre. He also could make no specific finding as to when, how, or why the appellant came into possession of the loaded handgun.

In short, the trial judge could not conclude that Nur was part of the threatening party outside the community centre or, for that matter, what role he played, if any, in the menacing events that attracted police attention. Even absent any nexus to those events and the aggravating factors they import, Nur was in possession of an extremely dangerous, loaded and legally prohibited firearm in the immediate vicinity of a public community centre in an area notorious for criminal conduct. His crime – that of possession of a loaded prohibited firearm contrary, as in the instant case, to s. 95(1) of the Code – was grievous and, at the time, subject to a minimum sentence of three years imprisonment.

[27] The circumstances of the two sets of offences are factually distinct. However, the immediate offender's blameworthiness is not, in my view, so different from that of Nur's. The two transactions share at least a rough moral equivalence. I am satisfied that the offender before me was viscerally afraid. He had been physically assaulted and threatened with death. He armed himself with a loaded handgun as a means of protection lest his assailant endeavour to make good his threat. The gun was not an instrument of ancillary criminality. He did not employ it to facilitate another crime or to intimidate others. He did not try and evade the police. He did not use the gun. He did, however, carry it in a public park. His conduct jeopardized innocent others. It had no legal justification or excuse. His crime was a "true crime" and as grievous as – but no more so than – that perpetrated by Nur.

[28] The antecedents of the two miscreants – Nur and the immediate offender – are, at least facially, more distinct than their offence scenarios. As sympathetically described by McLachlin C.J. in the majority opinion she authored for the Supreme Court, supra, at para. 21 (citations omitted):

Nur comes from a supportive, law-abiding family who came to Canada as refugees. At the time of the offence, he was 19 and attending high school. He was performing well and hoped to eventually attend university. He had worked a number of part-time jobs and volunteered in the community. Teachers and past employers praised his performance and his considerable potential. One teacher described Nur as "an exceptional student and athlete who excelled in the classroom and on the basketball court . . . an incredible youth with unlimited academic and great leadership skills". Nur had no prior criminal record.

The offender, as earlier canvassed, comes from a broken family that is neither supportive nor law-abiding. He left school at 16, has had only sporadic employment, has no history of participation in sports or volunteerism, and has survived on welfare for the past several years. Most significantly, he is not a youthful first offender but, rather, a 35-year-old man with a criminal record that includes a number of serious prior offences.

[29] This inventory, on an overly glib reading, suggests a personality disorder and little likelihood of reform. There is, however, considerable room for meaningful nuance and a more benign construction of the offender's character, criminal propensity and prospect for rehabilitation. But for two distant convictions for simple possession of marijuana, a full fifteen years have passed since the offender's last crime of violence or, indeed, an offence of any gravity. This is a very substantial gap, and one achieved despite a difficult childhood and adolescence, no family support and few opportunities. It tracks the years of the offender's adulthood. It speaks to his capacity to comply with the law. And it reinforces the forensic psychologists' assessment, which I accept, that the offender "does not appear to be a criminally entrenched individual". Nor, as also concluded by the forensic assessment team, is he emotionally callous or unfeeling. Unlike Nur, the offender did not try to evade the police. Unlike Nur, he confessed to his criminal conduct immediately following his arrest. Unlike Nur (who, as said by the Court of Appeal, supra, at para. 7, "did not … admit any of the facts relevant to the allegation beyond those essential to maintaining the plea [and] put the Crown to the strict proof of any … aggravating features"), the offender accepted the entirety of Crown's case on pleading guilty. Unlike Nur, he has expressed and exhibited genuine remorse.

[30] In spite of the challenges of street life, poverty, a limited education and a chronic debilitating condition, the offender has recently endeavoured to improve his occupational training, entered into a relationship of some stability and effectively ceased abusive consumption of alcohol and drugs. He is, in my view, a man with viable rehabilitative prospects and one who is amenable to structured supervision to achieve those ends. Again, then, I find a rough equivalence in the moral character – the capacity for pro-social integration and redemption – of Nur and the immediate offender.

[31] This comparative exercise squarely places the offender within that range of sentence considered appropriate by the Court of Appeal in R. v. Nur. Doherty J.A., writing on behalf of a rare five-member panel of the Court, concluded, at para. 109, that,

I am satisfied that a trial judge, properly balancing all the factors, could have sentenced the appellant to a maximum reformatory term. I am equally satisfied that another trial judge, also properly balancing the various factors, could have imposed a penitentiary sentence of up to three years.

In short, the approved "sentencing range for a s. 95 offence [absent] the … three-year minimum", as put at para. 108, is "between two years less one day and three years". Nothing disqualifies the offender before me from inclusion in this sentencing bracket. Indeed, I am strongly of the view that the circumstances of the offence, combined with the offender's co-operation and contrition and the very significant gap in his record, situate him toward the lower end of this range. This positioning reflects the individualized nature of each sentencing exercise. Nor, in any event, is a sentencing range so rigid a vice on judicial discretion as to preclude departures in appropriate cases. As the Supreme Court re-affirmed in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 44:

[W]hile courts should pay heed to [sentencing] ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.

(c) The Impact of the Offender's Pre-Sentence Custody

(i) Introduction

[32] Having determined the appropriate range of sentence and situated the offender within that range, the remaining question is what weight, if any, should be accorded his pre-sentence custody. Counsel, as noted, are agreed that each day of remand detention be calculated as the equivalent of 1.5 days so that, in the end, some 16 months are to be deducted from the sentence that would otherwise be imposed. They are, however, fundamentally at odds as to whether the hardships faced by the offender while in remand custody justify any reduction in the effective sentence – that is, before the 16 months attributed to lost remission or parole opportunity are minused-out. The law governing this assessment has been subject to both statutory amendments and layers of judicial gloss over the past five years. I begin with a review of these reforms and then turn to their application in the case at bar.

(ii) The Law Governing Credit for Pre-Sentence Custody

[33] Historically, sentencing judges assessing the credit to be assigned to pre-trial custody endeavoured to account for both the delayed opportunity for early release and the harshness that typically characterizes confinement in a remand facility. These two dimensions of loss or deprivation hardened into an almost universally applied metric: each day of pre-sentence custody was treated as the equivalent of two days, which total was then deducted from the sentence which would otherwise be imposed on an offender who had been denied bail. (See, for example, R. v. Rezaie (1996), 112 C.C.C. (3d) 97 (Ont. C.A.); R. v. McDonald (1998), 127 C.C.C. (3d) 57 (Ont. C.A.); and R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455.) The Truth in Sentencing Act, S.C. 2009, c. 29 came into force in early 2010. It fundamentally altered the settled approach to the assessment of pre-sentence detention by amending s. 719 of the Criminal Code so as to limit credit for "any time spent in custody" to a maximum of 1.5 days for each day of an offender's pre-sentence detention.

[34] The Supreme Court, in construing these amendments in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, re-affirmed the two conventional justifications for the extension of credit for pre-sentence custody. As accurately summarized in the Court's own headnote:

Courts generally gave enhanced credit, at a rate higher than one day for every day of detention, for two reasons. First, statutory rules for parole eligibility and early release do not take into account time spent in custody before sentencing. Therefore, the quantitative rationale recognized that pre-sentence detention almost always needs to be credited at a rate higher than 1:1 to ensure that an offender who is released after serving two thirds of his sentence serves the same total amount of time in jail whether or not he is released on bail. Second, the qualitative rationale for enhanced credit recognized that conditions in detention centres tended to be harsher than corrections facilities. [Emphasis in original.]

The Court also re-endorsed the methodology that preceded the Truth in Sentencing Act amendments. Karkatsanis J., on behalf of a unanimous Court in Summers, wrote, at para. 70:

While there is now a statutory maximum, the analytical approach … otherwise remains unchanged. Judges should continue to assign credit on the basis of the quantitative rationale, to account for lost eligibility for early release and parole during pre-sentence custody, and the qualitative rationale, to account for the relative harshness of the conditions in detention centres. [Emphases added.]

The Summers Court, relying on its review of statutory release and parole regulations (as set out at paras. 23-27 of the judgement), promptly directed that the quantitative rationale alone justified the application of 1.5:1 credit in most cases. As put at para. 71:

The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely. [Emphasis added.]

(See, also, para. 79.) Simplified, the conventional pre-amendments metric of 2:1 was effectively replaced by a new default metric of 1.5:1.

[35] This approach honours the first of the two rationales (that is, delayed eligibility for sentence remission or parole) for the extension of pre-sentence custody credit. Strictly applied, however, it leaves no room to mitigate the onerous conditions endured by remand centre inmates and which, prior to the amendments, were absorbed by the more capacious two-for-one (or sometimes even higher) ratio. The Supreme Court, at para. 72, recognized the risk of disparity and the resulting dilemma posed by the statutory amendments:

This means that two offenders, one of whom lost the opportunity for early release and parole, and a second who, in addition to losing those opportunities, was also subject to extremely harsh conditions, will likely both have credit assigned at a rate of 1.5 to 1. The unavoidable consequence of capping pre-sentence credit at this rate is that it is insufficient to compensate for the harshness of pre-sentence detention in all cases. [Underscoring added; italicization in the original.]

With notable concision, but without further elaboration or express reference to any guiding authority, the Court then immediately asserted, at para. 73, that supplementary relief for difficult or oppressive pre-trial custody hardship remains available – but outside the compensatory scheme afforded by s. 719:

[I]ndividuals who have suffered particularly harsh treatment, such as assaults in detention, can often look to other remedies, including under s. 24(1) of the Charter. [Emphasis added.]

[36] The offender's application for ancillary relief founded on his claims of onerous treatment while in remand custody largely turns on the meaning and scope of this single sentence. While not entirely free of ambiguity, the Summers Court's formulation makes clear that the cap now imposed by s. 719 means that remand prisoners entitled to 1.5:1 credit for their lost or delayed release opportunity will not be compensated for the routine indignities, overcrowding and lack of educational or rehabilitative programs they typically experience. Only "particularly harsh treatment" attracts additional sentencing relief. However, the Court's sole illustration of "particularly harsh treatment" (that of "assaults in detention", otherwise unqualified) does little to clarify the compass or application of the rule other than by strongly implying that a Charter infringement is not necessary to ground a qualitative claim for mitigation of sentence. An assault by correctional staff, for example, implicates the state in a breach of a prisoner's constitutionally protected rights and thereby affords, at least arguably, a remedy under s. 24(1) of the Charter. On the other hand, it is analytically difficult, if not impossible, to assign responsibility to the state for an unprovoked and unanticipated assault committed by a cellmate in circumstances where a remand facility's administrators made every reasonable effort to ensure the physical security of all inmates. Both "assaults in detention" may well amount to "particularly harsh treatment". If so, both likely merit a remedy of mitigation. But one is rooted in a constitutional claim and the second in the common law.

[37] Fortunately, the uncertainties left in the wake of Summers are of only tangential importance to the sentencing fate of the immediate offender. More germane are several instructional propositions firmly grounded in the language of paragraph 73 and surrounding comments in the same case:

• First, "harshness" is not a fixed or immutable standard. Rather, it is case-specific variable measured not only by an objective appraisal of remand conditions but, to a large degree, by the relative vulnerability or resilience of the offender at issue. As put directly, at para. 29, the "impact" of qualitative hardships "varies depending on the particular offender's needs, character and disposition". This, inevitably, involves a "fact-dependent and discretionary exercise".

• Second, mitigation of sentence for reasons of oppressive, unsafe or traumatizing remand conditions does not depend on a finding of constitutional violation. The Court's deliberate use of the word "including" in reference to the availability of Charter-based relief makes clear that a remedy for pre-trial hardship does not require proof of a constitutional transgression. The Court's single and unqualified example of a remedy-animating event reinforces this construction, as earlier discussed.

• Third, where the requisite "harsh treatment" is established, relief by way of sentence reduction is neither rare nor unusual. Rather, offenders who crest this threshold "can", as the Court directs, "often look to other remedies" than those afforded through s. 719 of the Code.

• Finally, the standard of "particularly harsh treatment" is neither an insurmountable or even daunting hurdle. The Court uses these same words – "particularly harsh" – to both introduce and anchor its reasoning in Summers. Proof of a meaningful personal nexus to pre-trial hardships undoubtedly falls to an offender seeking supplementary relief. However, the Court's opening language make clear, at para 2, its unanimous recognition, as a matter of notorious fact, that "conditions in remand centres tend to be particularly harsh". In short, exceptionality is not a pre-condition to meeting the test for mitigation founded on qualitative hardship as articulated in paragraph 73.

[38] As a result of "the unavoidable consequence of capping pre-sentence credit" that flows from the s. 719 amendments, the 1.5:1 credit assigned the immediate offender for his lost remission exhausts any statutory compensation he might otherwise merit. Further, no notice has here been given of an alleged violation of the offender's Charter rights or is a constitutional claim otherwise advanced. Accordingly any remedy, if warranted, for the "particularly harsh treatment" the offender claims to have endured must find purchase, if at all, in the common law.

[39] Although not expressly cited in Summers, the Court's reasoning with respect to the effect of pre-trial hardship on sentence mitigation is consistent with that more fully developed in its earlier decision styled R. v. Nasogaluak, supra. Read in the context of the Supreme Court's evolving jurisprudence on the subject of sentencing, the reference in Summers to "other remedies" to which resort may be had to address "particularly harsh treatment" in pre-trial custody reads as a direct, if silent, invocation of the remedial framework set out in Nasogaluak. Indeed, the "assault" offered by way of illustration in paragraph 73 of Summers is redolent of the facts in the precursor case.

[40] The central issue before the trial and appellate courts in Nasogaluak was whether the police use of excessive force in arresting an accused justified a reduction in the sentence that would otherwise be imposed. Initially framed as a question bearing on the remedial reach of s. 24(1) of the Charter, the Supreme Court immediately made patent that improper conduct by state actors may mitigate the severity of sentence whether or not it amounts to breach of an offender's constitutionally protected rights. LeBel J., speaking on behalf of a unanimous Court in Nasogaluak, observed, at paras. 2 and 3:

As all statutes and the common law must be Charter compliant, it should come as no surprise that an effective remedy for a proven wrong, which also happens to be a Charter breach, may well be crafted within the confines of a statutory or common law regime. …

[T]he sentencing regime provides some scope for sentencing judges to consider not only the actions of the offender, but also those of state actors. Where the state misconduct in question relates to the circumstances of the offence or the offender, the sentencing judge may properly take the relevant facts into account in crafting a fit sentence, without having to resort to s. 24(1) of the Charter. Indeed, state misconduct which does not amount to a Charter breach but which impacts the offender may also be a relevant factor in crafting a fit sentence. [Emphasis added.]

[41] So long as they bear a nexus to the offence or the offender and otherwise relate to the relevant principles of sentencing, events subsequent to commission of the index offence may be properly considered in crafting a fit sentence. As LeBel J. notes, at para. 47, "Section 718.2(a) of the Code provides that a court should reduce a sentence "to account for any relevant . . . mitigating circumstances relating to the offence or the offender" (emphasis in original). Again, as explained at para. 55, no Charter infringement need be established to attract appropriate relief:

Thus, a sentencing judge may take into account police violence or other state misconduct while crafting a fit and proportionate sentence, without requiring the offender to prove that the incidents complained of amount to a Charter breach. Provided the interests at stake can properly be considered by the court while acting within the sentencing regime in the Criminal Code, there is simply no need to turn to the Charter for a remedy. [Emphasis added.]

[42] The Nasogaluak Court endorses the "communicative function of sentencing" as a rationale for this expansive approach to the factual input that informs a fit sentence. LeBel J.'s reasoning, at para. 49, is here particularly instructive:

A proportionate sentence is one that expresses, to some extent, society's legitimate shared values and concerns. As Lamer C.J. stated in [R. v. M. (C.A.), [1996], 1 S.C.R. 500, at para. 81]:

Our criminal law is also a system of values. … In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code.

… [And i]n the words of Professor Allan Manson:

The communicative function of sentencing is all about conveying messages. The messages are directed to the community. They are about the values which ought to be important to the community. ("Charter Violations in Mitigation of Sentence" (1995), 41 C.R. (4th) 318, at p. 323.)

Indeed, s. 718 of the Criminal Code describes the fundamental purpose of sentencing as that of contributing to "respect for the law and the maintenance of a just, peaceful and safe society". This function must be understood as providing scope for sentencing judges to consider not only the actions of the offender, but also those of state actors. [Emphasis added.]

[43] The Court's canvass of trial and appellate sentencing decisions that exemplify long-standing observance of this principle includes cases that both precede and follow the advent of the Charter. One in particular (that of R. v. Munoz, 2006 ABQB 901) bears some kinship to the instant case, at least in so far as the state misconduct occurred while the accused was "awaiting trial". Degrading conduct and acts of physical violence by guards were there held to justify the reduction of Munoz's otherwise appropriate sentence of seven years to one of two years less a day, "without", the Supreme Court notes, "invoking s. 24(1)" of the Charter.

[44] Nor need the cognizable conduct of state actors amount to acts of violence or other species of "misconduct", in the ordinary pejorative sense, to have a leavening effect on an accused's sentence. For example, among the cases positively cited by the Supreme Court in Nasogaluak, at paras. 53 and 54, are several, again both pre- and post-Charter, in which excessive trial delay that fell short of a constitutional breach was held a "mitigative factor". Puzzling through the meaning of "misconduct" may, in the end, prove only frustrating and unhelpful. Far more accessible and practicable is the analytical approach endorsed by the Supreme Court, at para. 54, as simply "the concept of recognizing harm or prejudice caused to the offender as a mitigating circumstance" on sentencing. Restated, the question for a judge on sentencing is not the moral characterization of the state conduct at issue but its impact on the individual offender before the court.

[45] One further disparity resulting from the Truth in Sentencing Act amendments warrants comment before turning directly to the conditions of the immediate offender's pre-sentence custody and their impact, if any, on the assessment of his sentence. As earlier noted, the Court in Summers explained that "the quantitative rationale" for pre-sentence custody credit was "to ensure that an offender who is released after serving two thirds of his sentence serves the same total amount of time in jail whether or not he is released on bail". The Court rested the "qualitative rationale for enhanced credit" on "recogni[tion] that conditions in detention centres tended to be harsher than corrections facilities". Left unmentioned in the Court's reasons is any acknowledgement of the differential treatment on sentencing of the relative hardships experienced by accused persons released on bail and those detained pending their trial and who, like the offender before me, are fully credited at the statutory ceiling of 1.5:1 for their lost opportunity for early release. Unless their remand conditions qualify as "particularly harsh treatment", the latter group ends up doubly-disadvantaged as compared, first, to other inmates equally compensated by a 1.5:1 credit for lost remission but who do not suffer any appreciable hardships or whose conduct in remand or unlikely early-release prospects disqualify them for maximal lost-remission credit and, second, to accused persons released on bail with conditions that attract mitigative weight.

[46] In R. v. Downes (2006), 205 C.C.C. (3d) 488, the Court of Appeal concluded, at para. 33, that "time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance" on sentencing. (See, also, the subsequent Court of Appeal decisions in R. v. Panday (2007), 226 C.C.C. (3d) and R. v. Ijam (2007), 2009 ONCA 532, 245 C.C.C. (3d) 301.) As explained by the Manitoba Court of Appeal in R. v. Irvine (2008) 2008 MBCA 34, 231 C.C.C. (3d) 69, at para. 27:

The impact of the bail conditions on an accused person are to be "put into the mix" along with other potential mitigating factors … Time spent on pre-trial bail, in contrast to pre-trial custody, does not form part of the punishment itself; rather, it forms part of the initial analysis to arrive at the fit and appropriate sentence. There is no potential "credit" to be given in calculating the sentence, as there is … for pre-trial custody. It is simply a potential mitigating factor.

[47] The Truth in Sentencing Act amendments do not touch on the treatment of strict bail conditions on sentencing. Although acknowledging the discretionary and fact-driven nature of the exercise, the Court of Appeal continues to endorse the practice of extending mitigative effect to compliance with onerous bail terms: for example, R. v. Skanthavarothayar, 2012 ONCA 392 and R. v. Dragos, 2012 ONCA 538. (See also, R. v Aguas, 2015 ONSC 5732.) The bail conditions most typically viewed as mitigative are those that limit an accused's physical or social mobility, like house arrest or a curfew. No matter how stringent, these bail terms invariably pale in comparison to the conditions of total confinement and institutionalization endured by pre-trial detainees. Further, the conditions in a remand centre have no influence on the sentence imposed on a detained offender entitled to 1.5:1 credit unless, again, they meet the threshold of "particularly harsh treatment" articulated in Summers.

[48] As said in Nasogaluak, supra, at para. 2, "all statutes and the common law must be Charter compliant". I need not explicitly adopt this instruction to reach what I here view as a fit result. It does, however, seem only reasonable to incorporate the sentencing principle of parity, a crucial facet of proportionality, into the construction and application of the norm of "particularly harsh treatment". If nothing else, such approach would honour the directive of the Supreme Court in R. v. M. (C.A.), supra, that "judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians". It would also thereby further the communicative function of sentencing.

(iii) Applying the Law of Pre-Sentence Custody Credit

[49] If reported cases are any guide, the test of "particularly harsh treatment" has received very little explicit judicial attention since the release of R. v. Summers. However, two recent judgments bookend the treatment of qualitative deprivation during pre-sentence custody, and thereby help to illuminate the application of this standard.

[50] In the first, R. v. Bal & Sidhu, 2014 ONSC 3063, two men charged with second degree murder were convicted of manslaughter. Both were held entitled to compensatory credit at the rate of 1.5:1 for each of the approximately thousand days they each spent in custody between arrest and sentencing. Before this mechanical deduction, each of the offenders asked the court, as explained at para. 50, to first "take into account secondary or collateral punishment that accrued to [them] due to the harsh circumstances of their pre-sentence custody". Their claim was based on double-bunking, minimal exercise time and lock-downs on about 20% of their days in remand. The Court's reasons do not indicate whether the lock-downs were full-day or only part-day confinement of the offenders to their cells. Daley J. concluded, at para. 60, that,

both offenders do not fall within the circumstances contemplated by the court at para. 73 of Summers, as there is no evidence that they have suffered particularly harsh treatment which would give rise to an entitlement to other remedies …

Other than filing their correctional records, it appears that neither offender testified or otherwise tendered any evidence at their sentencing hearing and, in particular, any pertaining to personal hardships occasioned by their pre-trial custody. Further, neither offender presented as vulnerable or as suffering from any health-related or other disorders. Their complaints, in short, were of a routine nature, indistinguishable from those experienced by hundreds if not thousands of other inmates in similar circumstances.

[51] The very different result in the case of R. v. Donnelly, 2014 ONSC 6472 was reached without express reference to the Summers formulation. The result also reflects a very different fact pattern. Donnelly was a sympathetic, naive and remorseful first offender who played a secondary role in the criminal enterprise in which he was involved. He pled guilty to one count of making child pornography for publication. The offence carries a minimum penalty of one-year imprisonment, legally foreclosing any possibility of a disposition served in the community by way of a conditional sentence. Donnelly, who suffered from OCD since he was twelve, took medication daily to deal with the disorder. He had been subject to verbal and physical abuse during the five days he spent in jail before being released on bail, was bereft of his medication for part of this time, and was ultimately placed on a suicide watch as his disorder intensified. Filed medical reports directly traced subsequent diagnoses of PTSD and several other disorders and phobias to Donnelly's experiences while incarcerated and determined that, as put at para. 84, he was at a significantly "marked risk for suicide" if re-incarcerated. Nordheimer J., at para. 100, reasoned that the "usual remedy" for Donnelly's pre-trial tribulations, that of a reduction of a sentence of imprisonment, would "really provide him with no remedy at all". He noted that R. v. Nasogaluak, supra, left open, at para. 64, the "possibility that in some exceptional cases, sentence reduction outside statutory limits … may be the sole effective remedy for some particularly egregious form of misconduct by state agents". Relying on this passage, Nordheimer J. held that the "exceptional circumstances" of the case before him, including Donnelly's delicate mental state, warranted an exceptional departure from the dictates of the statutory regime. Accordingly, and contrary to the provisions of the Criminal Code, he imposed a conditional sentence of 21 months as a remedy for the detrimental effects of the offender's pre-sentence custody and to preserve him from the further psychological decline and risk of suicide that would accompany a sentence of incarceration.

[52] The result in R. v. Donnelly can be read as either a creative or extreme application of the remedial spectrum delineated in Nasogaluak, and perhaps both. It is not, however, a unique exemplar of the doctrine of exceptionality. The logic of Donnelly has been applied in R. v. Gowdy, 2014 ONCJ 696 (in which an otherwise impermissible conditional sentence was imposed to remedy the gratuitous police disclosure of highly prejudicial information) and R. v. Casey, 2015 NSSC 187 (affirming the post-amendments extension of "double credit" to the pre-trial custody of an offender whose bipolar disorder was left untreated while in a remand centre). Although earlier, the reasoning in R. v. Padda, [2003] O.J. No. 5502 (C.J.), R. v. Muthuthamby, 2010 ONCJ 435 and R. v. Melo, 2012 ONCJ 765 is to like effect.

[53] The offender before me does not seek an "exceptional" remedy or one that otherwise requires a constitutionally driven suspension or retooling of the Criminal Code. The impact of his remand circumstances do not approach the mental health deterioration suffered by the accused in R. v. Donnelly. However, and unlike the pre-trial conditions experienced by the defendants in Bal & Sidhu, the conditions of the immediate offender's detention were neither routine nor commonplace. He was in somewhat fragile health when he entered the TSDC. He suffered from Type I Diabetes, a disorder that is notoriously difficult to properly treat. He was dependent on the correctional authorities for his medical welfare. Despite his general co-operation and diet compliance, the correctional facility's management of the offender's diabetes resulted, on most days, in perilous blood glucose levels that frequently left him feeling sick. The complete lock-down of the offender on at least a quarter of his days in remand custody is an oppressive and here unexplained form of pre-sentence punishment. In addition, these lock-downs interfered with the proper management of his disorder. I have no difficulty concluding that the offender's experience in pre-trial custody amounts to an instance of that species of remediable prejudice captured by the phrase "particularly harsh treatment" in R. v. Summers.

[54] No "exceptional" remedy need be invoked to craft an appropriate sentence in this case nor, in any event, need exceptional circumstances be established to warrant relief by way of mitigation for harsh pre-sentence custody. (Unlike Nasogaluak, the Court in Summers never speaks of exceptionality, either as a threshold standard for relief or to characterize the available remedies.) Nor is this a case where the offender's medical condition or associated risks raise fears about the consequences of his future incarceration. The more stable nature of a correctional facility and the elimination of any requirement for further remand appearances or other transport lead me to infer that the offender will receive more consistent and appropriate treatment once he is transferred from the TSDC to a reformatory to serve his sentence. I have heard no evidence to suggest otherwise. In short, it is simply the personally onerous circumstances of the offender's remand custody that justify a remedy by way of mitigation of sentence.

[55] There is no automatic entitlement to remand hardship relief. No uniform metric obtains when an offender's remedial onus is satisfied. Each accused's application for similar relief turns on the personal impact of his or her own unique constellation of pre-trial hardship claims. Some, I appreciate, may construe these reasons as yet another effort to prise open an "enhanced credit" door firmly bolted by the amendments to s. 719. With all due respect to those who share this view, Summers is a complete answer: offenders in pre-trial custody "who have suffered particularly harsh treatment … can often look to other remedies" on sentencing beyond that afforded by the compensatory credit regime in s. 719. The precise boundaries of "particularly harsh treatment", the practical meaning of "often" and the nature and span of available "remedies" are all matters of inevitable debate and refinement. However, the facts that inform the findings I have made respecting the hardship assessment before me warrant, by way of remedy, a modest mitigation of the offender's sentence.

[56] That sentence need not be of penitentiary-length to specifically deter the immediate offender given the very significant gap in his record, his acceptance of responsibility and remorse, his psychological assessment and the tangible impact of his pre-trial custody experience. The Court of Appeal's reasoning in R. v. Nur, supra, makes clear that a high-end reformatory sentence can serve the goals of general deterrence and denunciation. The offender is amenable to and would, in my view, benefit from community supervision through the terms of a probation order. Applying the principle of totality, and factoring in the additional mitigation I attribute to the personally harsh conditions endured by the offender during his pre-trial custody, a fit global sentence is here one of 22 months, concurrent, for each of his two offences. Applying the compensatory metric of 1.5:1 to each of the 325 days the offender spent in detention, some 16 months is subtracted from this total. The result is a sentence of six months, concurrent, beginning the date of sentencing, September 4, 2015. This period of custody is followed by concurrent 18-month terms of probation, including conditions prohibiting the offender from possessing any weapons and contacting the persons against whom he armed himself. He is also required to keep the peace and be of good behaviour, report as directed to a probation officer, and pursue his education or seek and maintain employment. In addition, the offender is fined $10 with respect to each of these two offences and afforded two years to pay these fines. By way of ancillary orders, he is required to provide a sample of his bodily substance for DNA analysis and is ordered not to possess any firearms or other offensive weapons for the rest of his life.

D. CONCLUSION

[57] In summary, the offender is sentenced to a further six months in custody, concurrent, with respect to each of his offences. Concurrent probation terms of 18 months follow. Nominal fines attach to this disposition, as do DNA-collection and life-long weapons prohibition orders.

Sentence imposed on September 4, 2015

Reasons released on September 17, 2015

Justice Melvyn Green