ONTARIO COURT OF JUSTICE

CITATION: R. v. Armstrong, 2019 ONCJ 182

DATE: 2019 04 02

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TREVOR ARMSTRONG

Before Justice A.T. McKay

Application heard on March 8, 2019

Reasons for Judgment released on April 2, 2019

James Damaskinos .......................................................................... counsel for the Crown

Ryan Heighton ............................................ counsel for the accused Trevor Armstrong

McKAY J.:

INTRODUCTION

[1] On April 18, 2018 at approximately 11:30 PM, Mr. Armstrong smashed a glass door to a retail outlet, entered the store and stole the $40 contained in the cash drawer. He exited the store and a short while later was arrested in a nearby bar. He pled guilty to that charge on January 14, 2019. The matter was adjourned to March 8, 2019 for sentencing submissions.

[2] Mr. Armstrong then filed an application for an order staying the proceedings or, alternatively, reducing the sentence which is to be imposed as a result of alleged violations of his rights pursuant to sections 7 and 12 of the Charter. Briefly summarized, it alleges that his “right to life, liberty and security of person” under section 7 and his right to be free of “cruel and unusual” punishment has been violated by the conditions of his detention at the Maplehurst Correctional Complex (“MHCC”). Specifically, he has spent a significant portion of his time in custody in the segregation unit. It is alleged that the conditions in detention were exacerbated by his mental health issues, which were not dealt with in an appropriate fashion by the staff at MHCC. In addition, the application alleges that he was not given appropriate access to clean clothing and bedding.

[3] On the date set for argument, the defence abandoned the request for a stay. The defence position is that Mr. Armstrong should receive credit for time served at a rate greater than 1.5 to 1. Alternatively, the conditions under which he was held should be a mitigating factor in arriving at the appropriate sentence.

[4] Also on the date set for argument, Mr. Armstrong entered additional guilty pleas to a break and enter occurring April 10, 2018, another break and enter occurring August 10, 2018, and two curfew violations of his release terms.

EVIDENCE

Trevor Armstrong

[5] Mr. Armstrong filed an affidavit on this application. He also testified viva voce, and adopted the contents of the affidavit. He has been diagnosed with, and receives medication for, depression, anxiety, posttraumatic stress disorder (“PTSD”), and attention hyperactivity deficit disorder (“ADHD”). He receives assistance from the Ontario Disability Support Program as a result of those diagnoses. He testified that the symptoms related to his mental health conditions increased to the point where he was hospitalized for 12 hours in February of 2018 after experiencing feelings of loss of control, self-harm and the desire to damage things. He was prescribed clonazepam and provided with follow-up appointments with the psychiatry department at the hospital. However, he was incarcerated before he could attend any of those appointments.

[6] Mr. Armstrong outlined a difficult upbringing. He testified that he developed addiction issues in his teens, and those issues have continued as an adult. He began committing crimes in order to obtain the substances which he was addicted to. At the age of 13, he was forced to have sex with a 27-year-old person against his will. That contributed to low self-esteem and anxiety. In 2014, he recalled an incident from his childhood in which he was sexually assaulted by a male family friend. He felt that he had repressed the memory of those events until that time. The recollection of those events aggravated his existing mental health and substance abuse issues and he spiraled further out of control.

[7] In the period which led up to Mr. Armstrong entering guilty pleas in this matter, he spent two different periods of time in custody at MHCC. He was arrested and remanded in custody on April 18, 2018, but was subsequently released on bail on May 15, 2018 (the “First Remand Period”). On August 18, 2018 he was arrested on a surety revocation warrant and detained in custody. He remains in custody (“The Second Remand Period”). In Mr. Armstrong’s view, he was detained in a degrading, dirty environment which made him feel like less of a man. That led to an increase in his depression and anxiety.

[8] Mr. Armstrong testified that during the First Remand Period, on arrival he was screened by medical staff. He reported his mental health issues during the intake process. Options regarding which unit he would be placed in were discussed. He was advised that the mental health unit was contained within the protective custody unit. He did not want to be placed in the protective custody unit because of his knowledge that sexual offenders are often placed in protective custody. He did not want to be placed in that unit because of his past trauma and the potential for him to lash out at those detained for sexual offences. He did not wish to be placed in a general population unit because of his emotional instability on arrest, and because of the possibility that other inmates would want his prescription medications. He was of the view that segregation would be a quiet place where he would be out of harm’s way and he would be taken care of. Therefore, he requested the segregation unit.

[9] Mr. Armstrong testified that he completed an assessment with a social worker and requested one-to-one counselling and an appointment with a staff psychiatrist. The documents filed with the Application show that a psychiatric referral form was completed on April 26, 2018, with an appointment booked with the psychiatrist on May 4, 2018. However, Mr. Armstrong’s evidence is that he went 23 days before seeing a psychiatrist on May 11, 2018.

[10] Mr. Armstrong also testified that he was not regularly given clean clothing or bedding while in segregation. He was provided with sheets six days after arriving, and did not receive a fresh laundry roll containing towels, underwear and T-shirts for a period of 20 days. He complained to the sergeants on duty regarding that, and was advised that there was a shortage of clothing. As a result, he filed the complaint with the ombudsman.

[11] In segregation, inmates are entitled to 20 minutes of yard time daily. However, inmates in segregation are the last to receive their yard time, and because of staffing issues, yard time would often be missed. He only received his yard time on three occasions during the First Remand Period. In addition, he did not have access to any programming. As a result of these issues his anxiety increased to levels he had not seen before, and his depression intensified, leading him to consider self-harm. He did not report these issues to anyone for two reasons. He was afraid that he would be placed in a protective suit which restricts your motion. He was also afraid that his belongings would be removed from his cell.

[12] After being released on bail May 15, 2018, he engaged in counselling services in the community. However, his relationship with his surety deteriorated, which led to him lashing out and committing additional offences. He was arrested and returned to MHCC. He again requested that he be placed in segregation because he was apprehensive about his safety. He testified that he made numerous requests to see a staff psychiatrist and mental health counsellors, but those requests were not acted upon. Staffing issues and problems created by other inmates often meant that he did not have the time which he should have had out of his cell. He indicated that a staff nurse checked on him daily, but frequently the nurse interacted minimally with him, and simply made notes. He testified that his five-day detention reviews did not always proceed as planned. The situation with clean laundry deteriorated. He testified that he went 77 days without clean sheets.

[13] His evidence is that it took him 23 days after admission to initially see a psychiatrist. He also testified that at one point he went 54 days between appointments with the psychiatrist. He testified that the doctors wanted him to transfer out of the segregation unit because they felt it was harmful to him and unhelpful. At other times, other jail staff attempted to convince him to transfer from the segregation unit. However, he refused to do so because he felt his anxiety was too high and that he was not seeing a psychiatrist frequently enough to regulate his medications. Ultimately he agreed to move out of the segregation unit, and on October 10, 2018, he was put into a general population step-down unit. He moved into a general population unit on October 22, 2018. Medical staff prescribed additional medication and his mental health showed improvement. He engaged in Bible study programs, regular visits with the chaplain, and appointments with a psychologist.

[14] His evidence is that on January 18, 2019, at his request, he was moved back into the general population step-down unit because of issues with his general population unit. When he did so, he lost access to some of the programming that he had in the general population unit.

[15] In cross-examination he agreed that he was not the target of violence in any of the units that he was placed in. He maintained that a couple of times inmates tried to “muscle” him for his prescription drugs, but other inmates in the unit came to his assistance. He agreed that his situation improved after he agreed to go to the general population unit. He agreed that during his five-day review on April 20, 2018, he indicated that he did not wish to move from segregation to any other unit. He agreed that during the First Remand Period, he was offered relocation to a unit other than segregation and declined. In order to mitigate his situation in segregation, he was offered shower time, yard time, phone use and television time, but maintained that those amenities were only offered when it was convenient to institutional staff, which was not frequent.

[16] He also agreed that during the Second Remand Period, he was offered housing in all housing units other than segregation, including an offer for housing in the mental health unit on September 20, 2018. He declined those offers and maintained that he wished to be in segregation. He confirmed that he never made inquiries as to whether special arrangements could be made if he was housed in protective custody to minimize the risk of encountering inmates detained for sexual offending. He also agreed that from August 19, 2018 onward, every five days he was offered housing in a unit other than the segregation unit, which he continued to decline. He maintained that he agreed to try the general population step-down unit on October 10 because he felt that he had reached a point where his medications had been properly adjusted.

[17] He also agreed that after he moved into the step-down unit, his situation improved significantly, including his mental health. He had more time out of his cell, more time in the yard and had a cell partner. He agreed that upon his move to the general population unit on October 22, 2018, his situation significantly improved. He had more access to programming, and more free time. He agreed that, for the most part, his problems regarding clean laundry were confined to his time in the segregation unit.

[18] He was also cross-examined with respect to his medical appointments. He agreed that during the First Remand Period, his intake was conducted with the mental health nurse on April 18. On April 20, he met with the social worker. On May 11, he met with the psychiatrist, and was released on bail four days later. With respect to the Second Remand Period, he agreed that his intake and mental health screening was conducted August 18. He agreed that he met with the psychiatrist on September 10, and the psychologist on both September 14 and September 26. He agreed that he met with the psychiatrist on October 5, 19, 26, and November 9. He agreed that it was a back and forth process to determine the correct medications and dosages and that that process was completed by mid-November. At that point, he agreed that his mental health status improved. He agreed that the final adjustments to his medication regime took place in January/February 2019, and that he now feels good. He testified that he had more opportunity to schedule medical appointments after he left segregation, and that the appointments tended to be longer.

[19] Mr. Armstrong also agreed that while he was released on bail, he did not see a psychiatrist or a psychologist in the community. He did, at some point during that time frame, see his family doctor in order to renew prescriptions. He agreed that during his time in custody, at times he refused to have showers. He testified that he did so because he did not have access to clean clothing.

Sergeant Essery

[20] Sergeant Essery works in Investigations at MHCC. He has never had any direct contact with Mr. Armstrong, but was able to comment on general policies and practice at MHCC.

[21] With regard to inmates housed in general population units, all of the institution’s programming is available. Inmates have access to day rooms, television, phones and showers. There are 32 inmates per unit. Inmates are out of their cells from 9:30 to 11:30 AM, from 1:30 to 3:30 PM, and from 5:30 to 7:30 PM.

[22] Step-down units were introduced recently as the institution moves away from using segregation. Inmates in those units receive less time in the day rooms than inmates in general population units. Half of the inmates are out of their cell during the morning, and the other half are out of their cell in the afternoon for a period of approximately two hours.

[23] Inmates housed in segregation are, for the most part, alone in their cell. On occasion, they may have a compatible cellmate. There is very limited programming available in segregation, limited yard time and showers. Yard time is 20 minutes per day, but jail lockdowns can interfere with that. In addition, the number of individuals and step-down units can interfere with the yard time of inmates in segregation because fewer individuals can be outside at the same time. Inmates in segregation may actually only get three 20-minute periods of yard time per week. Inmates in segregation have shower time every second day, and running water in their cells. As a practical matter, it means showers three times per week, because on Sundays, only those inmates who have a court date Monday have access to the showers.

[24] With respect to clean laundry, fresh laundry rolls are to be offered each time an inmate showers, but in actuality, it is usually two times per week. There have been some problems with access to clean laundry at MHCC. The problems include a shortage of items because some inmates tear up items to make other items. In addition, MHCC is the central laundry facility for all of the institutions in the province, and at times MHCC ends up with a shortage of items after laundry is shipped to all of the other facilities.

[25] With respect to protective custody, inmates are only placed in that unit at their own request, unless the institution deems an inmate to be at high risk. However, even in that situation, an inmate can refuse protective custody housing by signing a waiver. Special accommodations regarding cell arrangements can be made within the protective custody unit if an individual makes that request. Mental health units are located within the protective custody unit. Within those units, mental health teams are readily available including social workers, mental health nurses and psychiatrists. Most of those professionals are readily available within the mental health unit.

Documents

[26] Counsel agreed that all institutional documents filed by both the Crown and defence could be accepted for the truth of their contents.

[27] I will not comment on all of the documents filed. I will note that as of March 8, 2019, Mr. Armstrong had spent a total of 232 days in custody. During that timeframe, there were no full lockdowns of MHCC. There were eight occurrences of partial lockdowns. Mr. Armstrong had access to all privileges unless the institution was on full lockdown, something that did not occur during that time frame. Mr. Armstrong was never triple bunked during this time frame. With respect to laundry exchanges, the policy at MHCC is that inmates received laundry changes each Wednesday and Saturday. Inmate entitlement includes one jumper, one pair of gym shorts, two T-shirts, four boxers, four pair of socks, one towel, two sheets, two blankets and one pair of running shoes.

POSITIONS OF THE PARTIES

The Crown

[28] The Crown takes the position that an appropriate sentence in this case is 18 months in custody, less pretrial custody. Mr. Armstrong’s pretrial custody should be enhanced at a rate of 1.5 to 1. A probation order for a period of 30 months duration should follow the time in custody.

[29] The Crown points out that Mr. Armstrong chose to be placed in segregation, and repeatedly rejected suggestions by MHCC staff that he would be better off housed in a different unit. With respect to the First Remand Period, the Crown acknowledges that Mr. Armstrong received limited access to mental health services including intake, nurse follow-up, and one psychiatrist visit. The Crown acknowledges, that ideally, the psychiatrist visit would have occurred sooner. However, there was no Charter breach. If anything, for the First Remand Period alone, the court could consider the analysis outlined in R. v. Duncan, 2016 ONCA 754. During the Second Remand Period, Mr. Armstrong received adequate medical services. There was a period of time when doctors were adjusting his various medications in order to obtain an optimal result, but that is a difficult process which often takes time.

The Defence

[30] The defence takes the position that the treatment of Mr. Armstrong while in custody, particularly the time spent in segregation, is deplorable and grossly disproportionate to what could be expected in the circumstances. The defence contends that a lack of social interaction afforded to Mr. Armstrong, his deprivation from outside contact, inexplicable delays in his mental health care and extensive time spent in his cell without clean clothing and bedding are conditions that the court must denounce. Such conditions violate United Nations standards, and meet the threshold of “outraging standards of public decency”.

[31] The defence submits that Mr. Armstrong’s choice to be housed in the segregation unit was not voluntary, given that he felt that he had no other choice but to request that unit. Going into custody was a huge emotional shock for Mr. Armstrong. Any mental health treatment of Mr. Armstrong was done in a perfunctory way, and the five day status reviews were also carried out in perfunctory fashion.

[32] The defence contends that the conditions of detention result in a violation of Mr. Armstrong’s section 7 and section 12 Charter rights. Alternatively, the court should consider the analysis in Duncan and enhance credit for time served to a point where the time which Mr. Armstrong has spent in custody is a sufficient sentence, even if the court accepts the position of the Crown that 18 months in custody is the appropriate sentence.

APPLICABLE LEGAL PRINCIPLES

[33] The Ontario Court of Appeal reviewed the principles applicable to section 12 of the Charter in Ogiamien v. Ontario (Ministry of Safety and Correctional Services), 2017 ONCA 667, [2017] O.J. No. 4401. At paragraph nine, the court stated the following:

But “cruel and unusual” is a high bar to meet. The Supreme Court has used various expressions to describe this high bar: “so excessive as to outrage standards of decency”; “grossly disproportionate to what would have been appropriate”; “grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable”. The point underlying these expressions is that merely excessive treatment or disproportionate treatment is not enough to establish a s. 12 violation. In the context of punishment the Supreme Court has cautioned against stigmatizing every excessive or every disproportionate sentence as being a constitutional violation. So too with treatment.

[34] In Duncan the Ontario Court of Appeal confirmed that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from beyond the 1.5 credit referred to in s. 719(3.1) of the Criminal Code. In considering whether any enhanced credit should be given, the court must consider both conditions of the presentence incarceration and the impact of those conditions on the accused.

ANALYSIS

[35] The defence places particular emphasis on the period of time that Mr. Armstrong spent in segregation, and its impact upon him. That poses some problems for the defence, given Mr. Armstrong’s insistence during both remand periods that he be placed in the segregation unit.

[36] There is no doubt that Mr. Armstrong faces challenges as a result of his upbringing. A presentence report which was prepared October 20, 2016 on unrelated charges was before the court. The section of that report dealing with previous convictions outlined 77 criminal convictions in the period from November 11, 1992 July 27, 2015. That total included 32 previous convictions for break and enter or attempt to break and enter. Mr. Armstrong is no stranger to custodial facilities, having spent considerable time in them. I infer that he was aware of the general conditions in the various units at MHCC.

[37] At the outset of the First Remand Period, Mr. Armstrong insisted that he wanted to be placed in segregation, notwithstanding the availability of other units. He was in that unit for a period of 27 days prior to his release on bail. He made a timely request to see a psychiatrist, and while he saw other health professionals in a timely fashion, he did not see a psychiatrist for a period of 23 days. There is no evidence as to what an appropriate benchmark is in terms of an inmate’s initial contact with a psychiatrist. There is no evidence that Mr. Armstrong was in a state of crisis. The “Jail Screening Assessment Tool” indicates that he was suffering from certain ongoing mental health issues, including depression, anxiety and PTSD. The document specifically indicates that there are no self- harm issues.

[38] Mr. Armstrong also raises an issue with the lack of access to programming, confinement to his cell for lengthy periods of time, inadequate yard time and inadequate access to clean laundry during this time frame. I infer that, prior to going into segregation, Mr. Armstrong would have been aware of the issues related to the availability of programming and of being confined for lengthy periods of time in his cell. With respect to the clean laundry issue, there is conflicting evidence between Mr. Armstrong and the evidence of the practice and procedure at MHCC. I have difficulty accepting Mr. Armstrong’s evidence regarding the length of time that he went without clean laundry.

[39] Mr. Armstrong was released on bail for the period from May 15, 2018 to August 18, 2018. I note that there is no evidence that during that time frame, he attempted to see any mental health professional regarding his issues. He gave evidence of his involvement in community programming on some issues, but it became apparent that the involvement was limited and brief in duration. Upon his return to MHCC in August, he again specifically requested that he be placed in the segregation unit. Despite what I find to be bona fide efforts on the part of MHCC staff to convince him that his health issues would be better served by placement in another unit, he continued to reject any move from segregation until agreeing to enter the general population step-down unit October 10, 2018.

[40] In my view, the evidence does not establish that MHCC failed to appropriately deal with Mr. Armstrong’s medical issues during the Second Remand Period. He saw a combination of medical health professionals. His medication regime was adjusted until it reached a point where, by his own evidence, he was feeling better. That improvement in his health coincided with him agreeing to move out of segregation and into general population. By his own evidence, when he agreed to do so, he felt healthier, had more access to programming, had more free time out of his cell, and more social interaction.

CONCLUSIONS

[41] The evidentiary record does not establish a breach of Mr. Armstrong’s Charter rights. Nor does the record reveal circumstances which would constitute particularly harsh presentence incarceration conditions which would mitigate the appropriate sentence.

[42] Mr. Armstrong has an extensive criminal record which includes at least 32 prior convictions for break and enters. He pled guilty to three charges of break and enter and two breaches of his release terms. One of the break and enters was committed while released on bail for the first break and enter. He displays a pattern of repeated criminal behaviour and noncompliance with court orders. The Crown position that 18 months is an appropriate sentence is actually on the very low end of what is appropriate, notwithstanding the mitigating factor of guilty pleas.

[43] The court will impose a sentence of 18 months in custody on the first break and enter charge, 18 months to be served concurrently on the other break and enter convictions. On each of the convictions for breaching release terms, there will be sentences of 90 days in custody to be served concurrently. As of today’s date, Mr. Armstrong has a total of 253 days in pretrial custody. That time will be credited at a rate of 1.5 to 1, making the presentence custody the equivalent of 380 days of pretrial custody. The sentence will be time served plus an additional five months and 10 days in custody. That will be followed by probation for a period of 30 months on terms which the court will outline.

Released: April 2, 2019

Justice A.T. McKay