Court Information

Ontario Court of Justice

Date: June 12, 2018

Location: Toronto

Parties

Between:

Her Majesty the Queen

— And —

Robert Duncan

Judicial Officer and Counsel

Before: Justice K. Mulligan

Heard on: March 16, 2018

Reasons for Judgment released on: June 12, 2018

Counsel:

• Ms. Lumba — counsel for the Crown
• Ms. G. Igbokwe — counsel for the accused Mr. Duncan

Judgment

MULLIGAN, J.:

Introduction

[1] On March 16, 2018, Mr. Duncan was sentenced after pleading guilty to two counts of trafficking heroin. The plea and sentencing submissions were completed just as the day came to an end. I sentenced Mr. Duncan to a fine and a term of probation in light of time served in custody and indicated that, given the time of day, reasons would follow. Herein are the reasons for the sentence imposed.

The Offence

[2] During a 24 hour period between July 31 and August 1, 2017, on two separate occasions, Mr. Duncan communicated with an undercover Toronto Police officer and made arrangements via text and telephone to sell a quantity of heroin to that officer. As per the arrangements, he met the undercover officer both times at agreed upon locations and trafficked heroin to that officer in return for an agreed upon price. On the first occasion he sold .19 grams of heroin for $80 and on the second he trafficked .43 grams of heroin in return for $80. Mr. Duncan was arrested immediately following the second transaction. He was detained in custody pending resolution of the charges.

Sentencing Positions of the Parties

[3] The federal prosecutor submitted that a fit sentence was one of 18 months (540 days) custody. She cited Mr. Duncan's lengthy criminal record, the extremely dangerous nature of the substance involved and the fact that the second transaction took place near a school, a statutorily aggravating factor pursuant to s 10(2)(a) of the Controlled Drugs and Substances Act. According to the prosecution, the 18 month sentence adequately took into account and fully recognized both the mitigating and aggravating circumstances present in Mr. Duncan's case. In recognition of the unique medical difficulties Mr. Duncan had faced at the South Detention Centre while awaiting resolution of his charges, the federal prosecutor submitted that an additional 14 days of further enhanced credit, over and above the 1.5 days for every 1 day of pretrial custody served, was appropriate. She asked therefore, that a further 217 days of custody be imposed.

[4] Counsel on behalf of Mr. Duncan argued that the appropriate sentence was a twelve month custodial sentence. She submitted that he should be immediately released having served 206 days of pretrial custody which, factoring in the "regular" enhanced credit of 1.5 days for every day in pretrial custody, was the equivalent of custodial sentence of 309 days. She further argued that, given the particularly harsh conditions that Mr. Duncan found himself in at the South Detention Centre, the Court should attribute 56 days of further enhanced credit. As such, the 1 year "time served" sentence was fit despite the fact that it might otherwise be seen as lenient considering the crime itself, Mr. Duncan's antecedents and, in particular, the nature of the substance involved.

The Evidence

[5] Exhibit #1 consisted of Mr. Duncan's five page Canadian Police Information Centre (CPIC) printout and a one page Local Criminal Record. Mr. Duncan's counsel also adduced a number of documents at the sentence hearing relating to his personal circumstances and medical condition. A four page document titled "Toronto South Detention Centre Misconduct Checklist" relating to an incident that had occurred on February 26, 2018, was tendered as exhibit #2, the Ministry of Community and Correctional Services Occurrence Report relating to the same incident was adduced as exhibit #3 and a booklet containing Mr. Duncan's affidavit and various medical documents as well as a Toronto South Detention Centre Lockdown report formed exhibit #4. Mr. Duncan was not cross examined on the contents of his affidavit.

[6] Mr. Duncan's criminal history commences in Vancouver in 1989. On an almost annual basis thereafter he accumulated convictions. His criminal record contains entries for numerous assaults, drinking and driving offences, property offences, thefts, and breaches of court orders. He has served sentences ranging from monetary fines to the equivalent of approximately two years custody. This set of charges represents his first conviction for an offence contrary to the Controlled Drugs and Substances Act.

[7] The evidence tendered at the hearing showed that in 1999, Mr. Duncan was employed as a carpenter at a construction site. As a result of a work injury he underwent surgery after various forms of treatment for the herniated/prolapsed discs he suffered failed to alleviate his symptoms. Following surgery he was diagnosed with osteoarthritis and bone spurs throughout his lumbar spine. He engaged in various forms of post-surgery treatment. Eventually he was placed on a pain medication regimen. He was ultimately prescribed opiates when medications such as Gabapentin, Lyrica, Naproxen and various anti-inflammatory pain killers proved ineffective. Since about 2015, Mr. Duncan has been in the care of pain specialist, Dr. S. James, whom he sees monthly. He tried treatment with pain block injections without success. Mr. Duncan, it appears from the evidence, will remain in need of opiates for the pain he suffers for the foreseeable future. Technology being what it is, one can only hope that medical breakthroughs in this area, not to mention a host of others, are forthcoming.

[8] In his affidavit, Mr. Duncan described the effects of his pain when he is not taking opiates as producing dizzy spells and causing difficulty sleeping, performing daily activities and sitting for extended periods of time. The pain is described as "unbearable", "chronic" and at times, involving "severe shooting pains that project from back to legs."

[9] Not surprisingly, given his medical issues, Mr. Duncan is currently unemployed and of limited funds. When I asked why he was selling heroin he advised that he sold the drug to make money to use the drug since his prescribed medication wasn't adequate. Fair enough. Though in no way condoning the offence and while fully recognizing how serious the crime of trafficking heroin is, one can understand, given that he has battled severe pain for close to two decades, the frustration, fatigue and anger Mr. Duncan feels at times when dealing with his agonizing chronic pain. Though not an excuse it certainly does provide context to the offence before me. It is clear that Mr. Duncan turned to heroin to deal with breakthrough pain not managed by the opiates he had been prescribed. I accept, from the evidence before me, that Mr. Duncan sold in order to use and that his use was pain management driven given that, medically speaking, it appears he had exhausted all other legitimate pain management options. I note that the facts read in to support the guilty plea involve two instances of trafficking on the same day and not over a lengthy period of time. I also note, given the discrepancy in pricing for similar amounts of the drug he trafficked, that Mr. Duncan does not appear to be a sophisticated seller. As already mentioned, this is his first Controlled Drugs and Substances Act conviction.

[10] On August 1, 2017, the date Mr. Duncan was arrested, Mr. Duncan's illicit use of heroin as well as his prescribed use of opiates was abruptly ceased. Despite having Mr. Duncan's prescription information from his pharmacy, information from the pain specialist's extensive medical file on Mr. Duncan, X-rays, and at least ten visits to the South Detention Centre's on site medical clinic, the South Detention Centre refused to provide anything stronger to Mr. Duncan than Tylenol, Lyrica, Celebrex, and Baclofen, for his pain management. The evidence satisfied me that Mr. Duncan suffered severe pain while in custody as a result. The evidence also showed that his withdrawal symptoms occasioned by the sudden cessation of prescribed opiates required him to be placed on withdrawal management during his initial period in custody. Over and above the often harsh and excruciating but temporary symptoms of opiate withdrawal, Mr. Duncan's chronic back pain was aggravated by being transported to and from court as well as by the daily routine of institutional confinement. His numerous requests to be taken to the hospital for pain treatment were frequently rejected. The medical records filed from the South Detention Centre describe Mr. Duncan as a "drug seeker". The truth is that Mr. Duncan was a drug seeker albeit, according to the evidence, one with a legitimate claim.

[11] On February 6, 2018, he fell out of the top bunk and was taken to E.R at the Trillium Hospital in Mississauga. He was treated at the hospital and returned to the South Detention Centre. His treatment at Trillium included Toradol and a recommendation that he see a pain specialist. Back at the South Detention Centre, given his mobility issues, he was moved to a lower bunk. However, shortly thereafter, but was placed on an upper bunk again when moved to a different range.

[12] On February 25, 2018, Mr. Duncan consumed contraband alcohol during the evening. He went to bed but he fell out of his top bunk while attempting to use the toilet during the night. When officers responded to a distress call made by his cell mate upon discovering Mr. Duncan in physical distress, Mr. Duncan was described as being verbally abusive, and profane. The occurrence report indicates he attempted to spit at various Toronto South Detention Centre personnel, refused medical examination by Toronto South Detention Centre staff and demanded to be taken to the hospital. The occurrence report indicates that Mr. Duncan refused to co-operate with officers' commands in order to be physically assessed and examined. His affidavit explains that he was unable to follow those directions being as he was physically unable to move. An ambulance was called and Mr. Duncan was placed onto a stretcher and transported to St. Joseph's Health Centre. He was treated there for a gash to his forehead. He was discharged in a wheelchair. When directed to stand up and get into the transport van to return to the South Detention Centre he advised that, because of his back pain and dizziness, he could not. According to Mr. Duncan's affidavit, the escorting officers viewed his actions as untoward conduct, forcibly lifted him from his wheel chair, threw him head first into the van and left him on the floor of the van for the trip back to the institution. He described that he was in too much pain to lift himself up onto the transport's bench and that he screamed in pain en route. The occurrence report confirms that he was located lying on his back on the floor when the rear doors were opened and that he had to be "assisted off the rear compartment onto a wheelchair". He was then wheeled inside the South Detention Centre to a security scanner. The occurrence report indicates that when told to walk through the scanner Mr. Duncan advised that he could not stand due to pain and mobility issues. As a result, the report described him as being aggressive and non-responsive. It also noted that he refused to submit to a strip search.

[13] Once re-admitted to the institution he was placed in segregation for misconduct. The Misconduct Report lists this incident of noted misconduct as that occurring at 1:01 am when officers first arrived in response to his cell mate's distress call. It notes that Mr. Duncan was "swearing and insulting staff, calling them stupid, ugly, useless and fucking idiots. He was being verbally abusive and threatened to spit on staff. He also seemed intoxicated." Mr. Duncan remained in segregation and did not receive a mattress and a pillow until March, 1, 2018. He received a seven day "time served in segregation" sentence on March 7, 2018. Interestingly, for reasons neither party was able to explain, Mr. Duncan was still in segregation when he appeared before me to enter his guilty plea on March 16, 2018.

[14] Of the 209 days that Mr. Duncan spent in pretrial custody a letter from the security manager at the Toronto South Detention Centre confirms that just less than 20% was spent on total lockdown due almost entirely to staff shortages at the facility. There was no evidence that any of those lockdowns had anything to do with Mr. Duncan or his behaviour.

The Law

[15] In R v Summers, 2014 SCC 26, the Supreme Court of Canada recognized the qualitative and quantitative ways in which pre-trial custody is generally more onerous than post-sentence custody. As a result, it affirmed the notion that enhanced credit for each day of pre-trial custody served was appropriate and necessary in the majority of cases in order to recognize this reality. However, the Court went on to comment that the effect of the Federal government's Truth in Sentencing's statutory 1:1.5 enhanced credit cap on offenders who are subject to particularly harsh conditions in pretrial custody and held that "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."

[16] In R v Doyle, 2015 ONCJ 492, 23 C.R. 7th 325, the court drew a number of conclusions in considering what the Supreme Court meant in Summers in terms of a sentencing judge's discretion to calculate enhanced credit under the new Truth in Sentencing regime particularly in cases where an offender has suffered harsh treatment over and above the remand centre "norm". In Doyle the Court found that:

• the impact of qualitative hardships varies depending on the particular offender's needs, character and disposition
• a remedy for pre-trial hardship does not require proof of constitutional transgression
• proof of the standard of "particularly harsh treatment" is not to be viewed as a daunting hurdle even though conditions in remand centres tend to be, by definition, particularly harsh

[17] The Court in Doyle as well as those that followed in such cases as R v Bedward, 2016 ONSC 939 and R v Shaw, 2016 ONSC 2651 and R v Inniss, 2017 ONSC 2779 held, in the final analysis, that judges are still able to award enhanced credit in addition to the 1.5:1 ratio statutorily allowed, in appropriate cases.

Analysis

[18] Given the accused's prescription opiate addiction, his motive for having trafficked to the officer on the day in question, the short duration and the lack of sophistication of his drug trafficking "career" and his guilty plea I find that a twelve month custodial sentence is appropriate and in keeping with the main sentencing principles of denunciation and general deterrence. While the sentence sought by the prosecutor is certainly not unreasonable I am of the opinion that it would be overly harsh to impose the equivalent of an eighteen month sentence keeping in mind the accused's particular personal circumstances and the circumstances of this offence.

[19] In the accused's case, both parties were in agreement that some form of "extra" mitigation of sentence was appropriate in light of the circumstances attendant to his pre-trial custody. Given the particularly harsh conditions the accused endured I find that an extra 56 days of enhanced credit is appropriate. This extra credit recognizes that the accused's time in pre-trial custody was qualitatively oppressive and physically detrimental in light of his proven pain issues. As such, he suffered more than others would or should while awaiting resolution of their charges in remand detention. I find that the sudden cessation of prescribed opiates despite his years long medical prescription for same and the institution's apparent refusal to even explore the possibility of treatment by prescription opiates was questionable in the circumstances. His description of his treatment by custodial officers upon his discharge from hospital on February 25, 2018, corroborated the accused's assertion that the detention centre mishandled or failed to appreciate the extent of his medical situation despite his numerous efforts to make them aware of same. This fact, along with the Toronto South Detention Centre's lock downs due to insufficient staffing, contributed to what can only be described as unduly harsh custodial conditions for the accused and thus substantially informs the sentence imposed.

Released: June 12, 2018

Signed: Justice K. Mulligan