R v. Ferguson

Ontario Court of Justice

Date: February 10, 2017

Court File No.: Brampton 15-14228

Parties

Between:

Her Majesty the Queen

— AND —

Dwidth Ferguson

Before the Court

Justice: D.F. McLeod

Heard: October 11, 2016

Reasons for Judgment Released: February 10, 2017

Counsel:

• I. Jaffe / M. Park — counsel for the Crown
• S. Bernstein — counsel for the defendant D. Ferguson

D.F. McLEOD J.:

Introduction

[1] This is a sentencing with respect to a plea entered before me concerning an incident that occurred on the 19th of September, 2015. Mr. Ferguson plead guilty to possessing 7 kilograms cocaine for the purposes of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.

[2] The facts have been articulated on the prior occasion and have been attached to the information as Exhibit #1.

Evidence Produced Regarding Personal Hardship

[3] Mr. Bernstein on behalf of his client for the purposes of sentencing produced the following documentation:

(a) Maplehurst Correctional Complex Lock-down summary;

(b) Pre-sentence Report;

(c) Toronto Star Article dated January 9, 2016 entitled "Astounding number of lockdowns at Maplehurst Complex";

(d) A series of letters in support of the character of Mr. Ferguson;

(e) An affidavit of Mr. Ferguson's dated the 9th of November 2016;

(f) An agreed Statement of Facts; and

(g) A hand written letter, by Mr. Ferguson

[4] Mr. Ferguson is 34 years of age and entered his plea of guilty back on the 11th of October, 2016.

[5] By all accounts, Mr. Ferguson has been a model inmate and comes to this matter free of any criminal antecedents. Mr. Ferguson has been entrusted with extra responsibilities while at Maplehurst which include working with the cleaning staff and assessing the inventory of supplies such as clothing, toiletries, and personal products.

Circumstances of the Offender's Custody

(i) Lockdowns

[6] Mr. Bernstein provided evidence indicating that during the time of Mr. Ferguson's incarceration he was a part of 115 "full lockdowns." A full lockdown means an inmate will be confined to his cell for the 8 hours he would normally be out in the dayroom.

[7] The conditions of detention during lockdowns are very close to segregation or solitary confinement. In some ways they are considered worse.

"The effects of lockdowns that were deposed to by the applicants and by other deponents of affidavits. Many of the complaints would be intuitively obvious in any event, but they included increased stress; restrictions on showers; lack of stimuli; poor hygiene, both of the inmates themselves and stemming from forced association with cellmates; difficulty of co-existing with cellmates; lack of exercise; insufficient light; restrictions on contact with counsel; and reduction or elimination of programs." R v. Ogiamien p. 255

[8] The conditions as described in the case of Ogiamien mirror those of Mr. Ferguson who stated in his letter to the court as well as his affidavit dated November 9, 2016 that during lockdowns – of which he was subjected to at least 89 – he was unable to shower, could not use the phone to communicate with family, friends, or his counsel. The lockdowns also further compromised Mr. Ferguson in an administrative fashion in that he was not brought to court on one occasion due to the conditions within the facility.

[9] It is noteworthy that during the lockdowns, which Mr. Ferguson describes as "strenuous," he was unable to access inmate programming as well as exercise and recreational facilities.

(ii) Discipline while in Incarceration

[10] In my review of the documentation, during the time of Mr. Ferguson's incarceration he has not been the subject of any misconducts and by all accounts appears to have been a model inmate.

[11] I also hasten to add that based on the words of Mr. Ferguson and the materials provided to me, this is the first time he has ever been in trouble or incarcerated in his life.

(iii) Religious Observance

[12] Mr. Ferguson also indicated in his affidavit that he is a spiritual young man who observes the tenets of the Jewish religion. He requested, as is his right, to be given a dietary accommodation and provided Kosher meals. Although this request was made verbally by Mr. Ferguson there was no movement from the institution. Finally, a letter was sent via his counsel to the institution in February of 2016, some four months after his incarceration began. Eventually in March of 2016 this accommodation was allowed and he was provided with Kosher meals as requested.

[13] During Mr. Ferguson's time in custody there have been no worship services or chapel for worshippers of the Jewish faith. Mr. Ferguson also recounts in his affidavit the events surrounding his wish to celebrate Yom Kippur, the holiest day in the Jewish calendar. The holy day requires an individual to fast until sundown as a religious observance. No provisions were made to accommodate this religious requirement; in fact, although staff were aware that he had to fast he was still provided with a meal in any event. After sundown, when he was now permitted to eat a meal, nothing was forthcoming. As a result of what had transpired Mr. Ferguson did not have a meal until the following day some 30 hours after the fast had begun.

[14] Mr. Ferguson was also able to work whilst in custody as a cleaner for the past 8 to 9 months. I have placed this under the heading of mitigation because this court is aware that every inmate is not chosen for such an employment but rather only those who demonstrate a level of honesty and trustworthiness which would allow for the smooth working of the institution while not compromising inmate safety.

(iv) Impact on Mental Health

[15] Further and apart from the case of R v. Duncan, Mr. Ferguson has provided this court with evidence of the impact incarceration has had on his mental state. This document has been filed with the court and has articulated the adverse effect incarceration has had on his mental health.

[16] In R v. Duncan at p. 6 the Court of Appeal suggests that pretrial custody can be particularly harsh. It goes on to say that such conditions can provide mitigation apart from and beyond the 1.5 credit referred to in section 719(3.1). This court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.

[17] While incarcerated, Mr. Ferguson's girlfriend – who was pregnant – suffered a miscarriage with their first child. Further Mr. Ferguson stated that while in custody he lost a member of his family. These traumas were further aggravated by the fact that Mr. Ferguson was housed in a facility not in his native Guyana but rather in Maplehurst Institution located in Milton, Ontario.

The Law - Conditions of Pre-Sentence Custody and Credit for Pre-Sentence Custody

Crown Position

[18] Crown counsel submits that an overall sentence of 7 years, 5 and a half months should be Mr. Ferguson's global sentence. Ms. Jaffe submits that this computation is inclusive of Mr. Ferguson's dead time, which should be calculated on a 1:1 basis. The crown further submits that the proposed 1:1 "dead time" rationale is premised on the notion that 7 years, 5 and a half months is a fit sentence and to attribute any increased value to his pre-sentence calculation would lessen the global calculus and therefore be inappropriate.

Defence Position

[19] Defence, on behalf of Mr. Ferguson submits that an appropriate sentence is one of 6 years, 5 months. Defence further submits that Mr. Ferguson's pre-sentence custody should take into account the conditions he endured while a resident at Maplehurst Correctional Complex. It is the belief of counsel for Mr. Ferguson that his pre-sentence custody lacked the requisite basic necessities one should expect while incarcerated in an Ontario facility and as such Mr. Ferguson's pre-sentence custody should be granted enhanced credit over and above the standard 1.5:1. To this end, they suggest an enhanced credit ratio over and above the standard calculation.

Issue: Is Mr. Ferguson Entitled to Credit Over and Above 1:1 for Pre-Sentence Custody?

[20] I believe the law is settled in this area. The Supreme Court states a sentence begins when it is imposed (s. 719(1)) and the statutory rules for parole eligibility and early release do not take into account time spent in custody before sentencing, pre-sentence detention almost always needs to be credited at a rate higher than 1:1 in order to ensure that it does not prejudice the offender. *R v. Summers* 2014 SCC 26, [2014] 1 S.C.R. 575 p.2, 28, 29, 70.

[21] The Supreme Court also found that a ratio higher than 1.5:1 often took into account other circumstances. The Court points to the notion that detention centres tend not to provide the educational, retraining, or rehabilitation programs that are generally available when serving a sentence in corrections facilities. Consequently, time in pre-trial detention is often more onerous than post-sentence incarceration. As Cronk J.A. noted, overcrowding, inmate turnover, labour disputes and other factors also tend to make pre-sentence detention more onerous. R v. Summers p.27, 28

Issue: Is Mr. Ferguson Entitled to Enhanced Credit Over and Above 1.5:1 for Pre-Sentence Custody?

[22] R v. Summers counsel suggested that in the appropriate circumstances, particularly harsh pre-sentence incarceration conditions can provide mitigation apart from and beyond the 1.5:1 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the pre-sentence incarceration and the impact of those conditions on the accused.

[23] In the case of *R v. Duncan* 2016 ONCA 754:

The trial judge effectively held that any credit or consideration in relation to pre-sentence incarceration was capped at the 1.5:1 limit. We agree with counsel that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5:1 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.

[24] In the case at bar, there was evidence that the appellant served a considerable part of his presentence incarceration in "lockdown" conditions due to staffing issues in the correctional institution.

Analysis

[25] In the case of *R v. Tulloch*, 2014 ONSC 6120 Justice Hill made mention of the conditions of Maplehurst detention centre at the time, noting the percentage of lockdown days, limited program availability, and over bunking. Hill goes on to state, what does become a concern is systemic causation and acceptance of such phenomena.

[26] Mr. Ferguson, through counsel, advised this court that he has been locked down for almost one third of the days he has spent in custody, frequently for "numerous consecutive days," as of November 8, 2016 he had been subjected to 115 days of lockdown. In the case of *Ogiamien v. Ontario*, 2016 ONSC 3080, lockdown days were described as conditions very close to segregation or solitary confinement. In some ways they were seen to be worse. The inmate is holed up with another inmate not of his choosing. The actual periods of confinement for 24 hours a day are entirely arbitrary, and unpredictable, both as to timing and length. (para. 252)

[27] The timing and length of the lockdown periods are dependent on something that is equally irrational and unpredictable, namely, lack of staff. This is, or should be, entirely within the control of the government. The government knows how many people it requires to staff the units in the correctional facility, and is within their control to ensure that sufficient staff are available. Ogiamien v. Ontario (para. 253)

[28] The impact of the lockdown days have taken a significant personal toll on Mr. Ferguson. He advised this court through his affidavit that as a result of a particular administrative lockdown due to labour unrest, he was not escorted to appear via video remand. As a novice to the system, this non-appearance caused him much consternation that could not be easily alleviated, as he was not able to use the phones in order to contact counsel. He states he was "left in the dark" for a period of time. Further, due to the labour unrest he was not provided with breakfast or lunch, however received some food later in the day.

[29] Mr. Ferguson goes on to articulate that the impact for him has been particularly strenuous. During each and every lockdown his communications with his lawyer, family and friends becomes non-existent. Further, when these lockdowns occur he is left with no access to showers, inmate programming, exercise, or recreation facilities.

[30] "The high frequency and long duration of lockdowns since I have been in custody has caused a great deal of stress and anxiety, far beyond what anybody should have to endure. Prior to my arrest, I had never spent a single minute in custody" (para.10 – Ferguson Affidavit)

[31] An itemized lock-down summary sheet formed part of the defence's materials in which, under the heading Maplehurst C.C. "Normal Daily Routine," there is a breakdown of an inmate's daily routine. The form also provides the dimensions of the cell area as well as the following information:

[32] "The cellular accommodation at the Maplehurst Corrections Complex was designed and constructed to house two (2) adults. This standard is consistent throughout North America and Commonwealth countries." (Tab 5, page 1 – Defence Materials)

Conclusion

[33] 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 provides 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." *R v. Doyle*, 2015 ONCJ 492 (Green J) p. 55

[34] There are minimum standards with which compliance is expected in terms of prison administration in Canada particularly in light of Canada's official endorsement of policy suggesting the following:

Three fundamental human rights principles clearly emerge. Firstly, a prisoner's sense of dignity and worth as a human being must be respected and maintained through the entire course of their imprisonment. Secondly, the suffering that results from the loss of liberty and freedom by the fact of incarceration is punishment enough. Finally, prisons should not be punishing places rather they should help prisoners rehabilitate themselves.

[35] On my review of the case law provided to me by both counsel, I believe the appropriate sentence should be one of 6 years 10 months. When applying the principle of totality and factoring in the harsh treatment associated with lockdown days, double bunking, the impact of his incarceration on his mental well-being, and the lack of diligence with respect to Mr. Ferguson's religious observance, as well as applying the Summers regime with respect to enhanced credit, this court will deduct 29 months from the overall sentence. This will leave Mr. Ferguson with a further sentence of 4 years and 7 months to be served in a federal penitentiary.

[36] This court is sympathetic to the conditions that Mr. Ferguson faced as a result of his being incarcerated. It is this court's belief that incarceration in a correctional facility in this country places a burden of decency and dignity on those who are controlling another's liberty. This task is not easily measured and requires an equal portion of justice and mercy on the part of those who house and maintain these facilities on a daily basis. Lastly, Mr. Bernstein suggested that perhaps this court should or could send a message. Although I understand the sentiment behind those words, from one who is a seasoned and passionate advocate, it is for others to determine what that message should be and how it should be dispensed. As for this court, the most I can do is ensure that any decision is firmly focused within the confines of the law.

Released: February 10, 2017

Signed: Justice D.F. McLeod