Court File and Parties

Court File No.: Sault Ste. Marie 796 and 331 Date: September 17, 2019 Ontario Court of Justice

Between: Her Majesty the Queen — and — Steven Turco

Before: Justice R. Kwolek

Heard on: June 19 & August 27, 2019

Reasons for Judgment released on: September 17, 2019

Counsel:

• D. Didiodato, for the Crown
• J. Belisle, for the accused Steven Turco

KWOLEK J.:

Summary of Facts

[1] The offender was initially charged with 53 counts on one Information and one count on a separate information. Ultimately, he pled guilty to a total of 14 amended counts which combined certain of the counts in the multiple count Information.

[2] The majority of the counts involved the offender entering certain premises, attending in laundry rooms with break-in instruments and removing change from such laundry machines. Often such machines were damaged in the process of accessing the funds.

[3] All of these offences took place between December 2018 and February 2019.

[4] In addition to the theft and damage to laundry machines, the offender also pled guilty to a theft of items from Canadian Tire on January 10, 2019 valued at $70.73, which items were recovered. The single count Information was a breach of recognizance charge for failure of the offender to advise the police of a change in his address.

[5] The offender was charged with certain thefts and break and enters from one location on January 10, 2019. He entered the property on seven occasions before that date and stole between $375 and $500 and caused damage estimated at $1,200. He entered a second location on January 8, 2019 and caused damage of $290 with no estimate provided as to the amount of money that was taken from that location.

[6] After the initial charges were laid, the offender was released on bail on certain conditions. While on bail, he entered another laundry location on February 2, 2019 causing $1,600 in damage to the machines involved and stealing an estimated $250 to $300.

[7] He entered a further location on February 3, 2019 and was unsuccessful in obtaining any money. On February 5, 2019, he damaged machines at another location causing damage of $300 but did not obtain any funds.

[8] On February 13, 2019, he entered a further laundry room but no damage to the property resulted and no theft was recorded.

[9] On February 18, 2019, at another location, a coin machine was drilled out, causing $200 in damage with an estimated theft of $100.

[10] While committing these offences, the offender also repeatedly breached a term of his recognizance requiring him to abide by a curfew. Most of these offences occurred at times when he was subject to the terms of his curfew.

[11] The total amount of funds stolen from the various laundry locations was approximately $1,000 and, in addition, the offender caused damages in an amount exceeding $3,500.

Crown Position

[12] The Crown position on the date scheduled for sentencing was a global sentence of two years less a day, less credit for pre-sentence custody plus probation for a period of two years to follow. The Crown did not agree that the offender should receive anything more than the standard 1.5 days credit for every day that he spent in pre-sentence custody, resulting in a further sentence of about 14 months.

[13] The Crown indicated that it took into consideration all of the mitigating factors including Gladue factors, and in considering the appropriate sentence, had already reduced their original sentencing position by a significant amount.

Defence Position

[14] The defence position, when this matter was argued on August 29, 2019, was that a period of incarceration of time served plus probation of two years to follow would be an appropriate disposition. The offender had been in custody, as of August 29, 2019, for a period of 200 days and the defence suggested that due to the harsh conditions in the jail while the offender was awaiting sentencing, instead of being credited for 300 days at the standard rate of 1.5 days for each day spent in custody, that he be granted credit at the rate of two for each day that he spent in custody for a total credit, as of that date, of 400 days.

Evidence at Sentencing Hearing

[15] A pre-sentence report, a Gladue report, a sentencing record setting out the New Life Ministries correspondence completed by the offender while the offender was incarcerated, together with the offender's criminal record, as well as a Ministry of Community Safety and Correctional services spreadsheet setting out lock downs at the jail were filed as exhibits before the court.

[16] In addition, the offender testified as to the conditions in the jail as well as the nature of the programming that he completed. The acting Deputy Superintendent for the Algoma Treatment and Remand Centre also took the stand and testified at the sentencing hearing.

Criminal Record of Offender

[17] The offender has a prior criminal record. His prior convictions occurred between 2006 and 2013. The offender had never been sentenced previously to any significant period of custody. In July of 2011, he was convicted for failure to comply with a term of his release document and was sentenced to one day time served after being given credit for four days of pre-sentence custody. He was convicted in September 2006 for driving a vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood.

[18] The offender was convicted of a prior break and enter in April of 2013, together with a breach of his release document. He was sentenced to a suspended sentence and a period of probation. On the same date, he was also convicted of "obstruct a peace officer and a count of mischief", for which he also received a suspended sentence and was placed on probation for a period of 12 months.

Aggravating Factors

[19] The number of incidents committed by the offender, 13 break and enters in all, is an aggravating factor.

[20] The Crown indicates that these were break and enters into residences. Break and enters into residences carry a maximum sentence of life imprisonment. Although, these were break and enters into residential complexes, they were not entries into any particular residential unit, but were entries into laundry rooms which were common areas shared by the tenants to do their laundry.

[21] A second aggravating factor cited by the Crown, and acknowledged by the court, results from the fact that after the offender had committed the initial six break and enters and was charged and released on bail, he committed a further seven break and enters, also breaching other conditions of his release document.

[22] A third aggravating factor was the fact that these were offences which required some degree of planning. The offender brought tools such as drills, screwdrivers and a specialized magnet to assist him in committing these offences. He pled guilty to charges of being in possession of break and enter instruments on the dates that he entered the various premises.

[23] The total estimated thefts in these matters was not very high, totalling approximately $1,000 with reported damages to property estimated at over $3,500.

Mitigating Factors

[24] The guilty pleas entered by the offender are indicative of remorse. Given the number of charges, the guilty pleas saved the court the time and expense of a lengthy trial. Guilty pleas and admissions of guilt are important mitigating factors in a post-Jordan era when court time is at a premium.

Other Factors

[25] In crafting an appropriate sentence for the offender, the court also considers the particular circumstances of the offender.

[26] The offender is indigenous and a pre-sentence report as well as a Gladue report were prepared which described Gladue factors present in this case.

[27] The offender was born and raised in the city of Sault Ste. Marie. His mother is of aboriginal heritage from the Wikwemikong First Nation and the offender is a registered member of that First Nation. His mother's first language is Ojibway. His parents drank a lot when he was young. He advised that he was raised in an abusive household. He described to the author of his Gladue report that alcoholism was normalized and was a way of life in his home when he was a child.

[28] The offender suffers from addictions and described a long history of substance abuse. He currently takes medication for depression, Attention Deficit Hyperactivity Disorder, and bi-polar disorder and medication to help him with his sleeping.

[29] During his incarceration, the offender exercised when he was out of his cell and completed a number of programs of Bible Study as described in his sentencing material. Based on his written material and testimony, it would appear that he devoted many hours to the completion of programming through New Life Ministries between April 2019 and the end of July 2019. He was on suboxone during his incarceration and appears committed to maintaining sobriety.

[30] The offender has one child who is currently being cared for by his mother who has recently separated from his father. The father is supportive of his son and the offender's plan is to reside with his father once he completes treatment. He also has the support of his aunt and is described as looking forward to counselling and treatment and ways to manage his anxiety and depression. The offender hopes to make changes in his life, maintain a life of sobriety, gain full custody of his son, and hopes to get back to work. He was described by ARTC staff as quiet and co-operative once he was stabilized on his medication.

[31] The offender had previously been on probation, reported reliably and had been taking steps to use resources available to him to deal with his mental health and substance abuse issues. The probation officer from his previous disposition concluded that the offender was "a suitable candidate for community supervision in the future… given his amenability to helping resources and favourable motivation for change."

[32] The author of the current pre-sentence report indicates that the offender: "has some willingness to address his substance abuse and desires a stable life for him and his son that includes employment and gaining full custody of his son."

Enhanced Credit for Pre-sentence Custody

[33] Counsel for the offender sought an enhanced credit for the offender of two days credit for every one day served as opposed to the "standard" credit of 1.5 days for every day of pre-sentence custody as set out in the Criminal Code. The basis for such claim by the defence was the excessive number of lockdowns in the institution, the overcrowded conditions in the jail which resulted in double bunking and the inmate sleeping on a mattress on the floor in a small cell, as well as the living conditions in his cell.

[34] Evidence was led at the sentencing hearing by the offender who testified on his own behalf. In addition, the Crown also elected to call the acting supervisor of the Algoma Treatment and Remand Centre (ARTC). This supervisor provided a written printout of lockdowns for a three week period commencing July 29, 2019. This witness testified that such documentation had been prepared in the spreadsheet form as presented to the court since May or June of this year as a way of monitoring the extent and nature of "lockdowns" in the penal institution on a weekly and daily basis. I am unclear as to why further records were not provided to the court since this witness was called to provide further information to the court relating to the conditions in the institution regarding this inmate and a second inmate who was housed in a different unit in the same institution. It would have been preferable to have as complete and as accurate a record as possible when dealing with this application.

[35] In many respects, the evidence of the offender and the evidence provided on behalf of the institution were similar in nature but there were some areas in dispute.

[36] The documentary evidence provided by the witness for the ARTC showed six lockdowns in the week from August 12, 2019 to August 18, 2019 ranging from a brief lockdown of two and one-half hours to a maximum of nine hours. Two of the lockdowns occurred on one particular day. Other than the one lockdown of two and one-half hours, the rest of the lockdowns were at least five hours in duration. Four of the lockdowns were due to staffing shortages.

[37] During the week of August 5 to 11, there were a total of four lockdowns ranging from five hours to eight hours, all such lockdowns were due to staffing shortages.

[38] During the week of July 29 to August 4, 2019, there were a total of four lockdowns ranging from a minimum of six hours to a maximum of 11 hours. Two of these lockdowns were due to staff shortages and two were due to security issues. Two of those lockdowns were restricted to the Fox North area only. This inmate was housed in the Fox South area and should not have been affected by the Fox North lockdown.

[39] Lockdowns may vary from one wing or section of the institution to the next and periods of time that an inmate may be out of his cell during the day may vary from one wing to the next.

[40] The offender when asked to estimate the extent of the lockdowns was able to relatively accurately describe his most recent experiences with lockdowns advising that "he was told" that he should be able to normally spend four hours outside of his cell per day and one-half hour in the yard outdoors. The witness for the Crown indicated that the inmates would normally be entitled between 20 to 30 minutes of yard access per day. It appeared from the ARTC witness that the offender should have been let out of his cell for more than four hours per day.

[41] The offender's evidence was that he received the "normal" four hours of time outside his cell only one time the previous week and three or four times in the last two weeks. He estimated that in the past 90 days he was not getting "proper" time out for about 45 days or one-half the time. The Crown witness indicated that the worst times for lockdowns were during the summer months due to staff shortages, partly due to increased summer vacations, which he described were the worst for the months of June, July and August. The witness for the Crown indicated that such lockdowns occurred much less frequently during non-summer months.

[42] With respect to the other months, the offender testified that he had a difficult time trying to estimate the number of days that he did not get his "normal" time out of his cell and relied on comments from another inmate who kept track of such lockdowns. The inmate estimated that they did not get his time out in the yard for about 75 days since he was incarcerated.

[43] The court is aware that a "riot" occurred in another section of the institution in January 2019, which resulted in damage to a particular wing and resulted in temporary overcrowding in at least some areas of the institution. The Crown witness indicated that some inmates from that wing would have been transferred to the offender's wing. Unfortunately, specific records were not checked nor provided by the institution to verify the number of lockdowns in the period prior to the period before June 2019. I accept the inmate's evidence, albeit with its own shortcomings, that this offender was subjected to additional lockdowns from mid-February until the end of May 2019. However, those lockdowns, were significantly less frequent prior to June 2019, than those in the summer months, even accepting the evidence of the offender. I accept that there would have been lockdowns and/or denials of time in the yard for this offender of about 75 days since the offender was incarcerated.

[44] There were other complaints raised by the offender in addition to the lockdowns and lack of time in the yard. He advised that he was not released from his cells to eat his meals other than on two occasions. He otherwise ate three meals a day in his cell on the floor for most of his pre-sentence custody.

[45] He advised that he was double booked in a cell that was designed for one person. There was one bed on a raised concrete slab that had a mattress placed on it together with a raised "bump" that doubled as a pillow. This offender spent, other than a period of time of 45 days that he slept on the elevated slab, the remainder of the time sleeping on a mattress on the floor of that cell for his pre-sentence custody of about seven months.

[46] In addition, the offender complained that there was an ant problem and he had to sleep on the floor and have his sleeping quarters shared with ants who would regularly crawl over him while he slept. He testified that it was "not nice" eating with the ants and that being confined in his cell affected his mental health. Eating in the cells and the food debris that would have resulted would have contributed to an ant problem. There was a toilet and sink in the cell and he and his roommate would also have gone to the washroom in the same location where they ate.

[47] As a result of these conditions, the offender indicated that he had to be prescribed increased levels of his anti-anxiety medication, increased medication for his mood stabilizers, and increased levels of the medication that he took for sleep. I find that the witness was credible in his comments and that the need for increased medication for these issues was as a result of increased anxiety and disturbances in his sleep. It is only logical that a doctor would prescribe increased medications due to these issues, even though admittedly the offender did not articulate the impact on him in this way. I make that finding recognizing his issues with Attention Deficit Hyperactivity Disorder and apparent memory issues.

[48] The deputy superintendent indicated that yes, in fact the inmates in the area where the offender was housed, were in fact eating their meals in their cells. That was due to "a poor set up we had rotating the inmates". This problem was apparently rectified by the witness when he found out about the problem shortly before he testified. The net effect of this "oversight" I conclude resulted in greater periods that this offender spent in the cell than what he should have, based on the institution's own guidelines, even when there were no lockdowns.

[49] With respect to the ant problem, the Crown witness confirmed that they had an ant problem and "sprayed regularly" but the ants would come back depending on the condition of the cleanliness of the location. This offender was forced to eat and sleep on the floor in his cell, thereby contributing to the ant problem!

[50] The court therefore does find that there was an ant problem in the cell of the offender which resulted in them crawling over him when he tried to sleep. The court finds the conditions for this offender in custody were unduly harsh.

The Law – Appropriate Sentence

[51] The relevant principles of sentencing are set out in s. 718 and following of the Criminal Code of Canada set out below.

718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

718.1. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,…

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[52] The seminal cases of R. v. Gladue, [1999] S.C.R. 688 (S.C.C.), and R. v. Ipeelee, [2012] 1 S.C.R. 433 (S.C.C.), encouraged the courts to recognize the uniqueness of aboriginal offenders, and to encourage the use of alternatives to incarceration. The Supreme Court in Ipeelee, supra, challenged the court to find a sentencing remedy in the circumstances of a particular offender to address the problem of Aboriginal overrepresentation in penal institutions:

68 Section 718.2(e) is therefore properly seen as a "direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process" (Gladue, at para. 64 (emphasis added)). Applying the provision does not amount to "hijacking the sentencing process in the pursuit of other goals" (Stenning and Roberts, at p. 160). The purpose of sentencing is to promote a just, peaceful and safe society through the imposition of just sanctions that, among other things, deter criminality and rehabilitate offenders, all in accordance with the fundamental principle of proportionality. Just sanctions are those that do not operate in a discriminatory manner. Parliament, in enacting s. 718.2(e), evidently concluded that nothing short of a specific direction to pay particular attention to the circumstances of Aboriginal offenders would suffice to ensure that judges undertook their duties properly.

69 Certainly sentencing will not be the sole -- or even the primary -- means of addressing Aboriginal overrepresentation in penal institutions. But that does not detract from a judge's fundamental duty to fashion a sentence that is fit and proper in the circumstances of the offence, the offender, and the victim. Nor does it turn s. 718.2(e) into an empty promise. The sentencing judge has an admittedly limited, yet important role to play. As the Aboriginal Justice Inquiry of Manitoba put it, at pp. 110-11:

To change this situation will require a real commitment to ending social inequality in Canadian society, something to which no government in Canada has committed itself to date. This will be a far-reaching endeavour and involve much more than the justice system as it is understood currently ....

Despite the magnitude of the problems, there is much the justice system can do to assist in reducing the degree to which Aboriginal people come into conflict with the law. It can reduce the ways in which it discriminates against Aboriginal people and the ways in which it adds to Aboriginal alienation.

[53] Cory and Iacobucci JJ. were equally cognizant of the limits of the sentencing judge's power to effect change. Paragraph 65 of Gladue, supra stated:

It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system. .... What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada. Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system. They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.

[54] Justice Wagner, the current Chief Justice of the Supreme Court of Canada, made the following comments in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089:

The court must never forget that Society as a whole will benefit from the rehabilitation of an offender. The community will benefit more from a sentence that considers and provides restorative justice and rehabilitates an offender than the imposition of a sentence that will ultimately encourage the offender to commit further crimes. The sentence should not be unduly long or harsh and an offender, especially an aboriginal offender as we have here, should receive the benefit of all available sanctions other than imprisonment, that are reasonable under the circumstances.

[55] Given the aggravating factors in this particular case, it is clear that a period of incarceration is necessary to denounce the actions of the accused and to deter this offender and others from similar behaviour in the future.

[56] Does this court have an ability to fashion a sentence that denounces and deters this individual yet is able to focus on his rehabilitation and provides some restorative justice to the community? The court is directed by the legislation and the case law to fashion an appropriate disposition with alternatives to custody considered for all offenders and specifically aboriginal offenders.

Legal Analysis for Appropriate Sentence

Legal Analysis of Enhanced Credit for Pre-trial Custody

[57] On the website for United Nations Office on Drugs and Crime there are provisions that were accepted by the United Nations General Assembly for the Standard Minimum Rules for the Treatment of Prisoners, which in December 2015, were amended and officially became known as the Nelson Mandela Rules, named after the late president of South Africa who spent 27 years in custody. A quote attributed to Nelson Mandela appears on that website which reads:

It is said that no one truly knows a nation until one has been inside its jails.

[58] In our case, it appears that there have been contraventions in at least two of the Nelson Mandela Rules, namely Rule 12, that there be one prisoner per cell, and Rule 23, that prisoners be allowed one hour of suitable exercise in the open air daily if the weather permits.

[59] Notwithstanding the conditions of incarceration as set out above, the Crown took the position that R. v. Duncan, 2016 ONCA 754, a decision of the Ontario Court of Appeal, cited by the defence, requires some adverse effect on the offender flowing from the conditions before further credit can be given. The Crown noted that just as in Duncan, supra, the offender made some positive rehabilitative steps during his pre-sentence incarceration, and as a result, just as the Ontario Court of Appeal ruled in Duncan, supra, no further credit should be given other than the statutory credit of 1.5 days for each day spent in pre-trial custody, as set out in s. 719(3.1) of the Criminal Code.

[60] In Duncan, the Court of Appeal commented as follows:

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. In this case, 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. There was, however, no evidence of any adverse effect on the appellant flowing from the locked down conditions. Indeed, some of the material filed on sentencing indicates that the appellant made positive rehabilitative steps during his presentence incarceration.

While the pattern of "lockdowns" endured by the appellant is worrisome, without further evidence as to the effect of those conditions, we cannot say that the appellant suffered particularly harsh treatment entitling him to additional mitigation beyond the 1.5 credit.

[61] A significant number of cases have considered the effect of Duncan on 719(3.1) of the Criminal Code.

[62] There are a number of cases where the courts have found that, given the test set out in Duncan supra, no enhanced credit should be given in the circumstances of those particular cases. These include R. v. David, 2019 ONSC 3758; R. v. Borsi, 2019 ONCJ 443; R. v. Georgiev, 2017 ONSC 1265; R. v. McIntyre, 2017 ONSC 360; R. v. Omardeen, 2019 ONCJ 449; R. v. McIntyre, 2016 ONSC 7498, to name just a few.

[63] In addition, the court came to similar conclusions in: R. v. Dean, 2019 ONCJ 386, in the absence of evidence of the conditions of the lockdowns and in the absence of impact on the offender, no enhanced credit was given; R. v. Callaghan, 2017 ONSC 1853, where there was a lack of proof of impact on the offender; R. v. Sauve, 2019 ONSC 960, where there was no evidence of adverse consequences.

[64] The Ontario Court of Appeal has referred to R. v. Duncan, supra on a total of five separate occasions. On four separate occasions, including R. v. Deiaco, 2019 ONCA 12, R. v. Ledinek, 2018 ONCA 1017, R. v. Gregoire, 2018 ONCA 880, and R. v. Henry, 2016 ONCA 873, the court upheld lower court decisions not to grant any enhanced credit above the 1.5 to 1 ratio.

[65] In R. v. Passera, 2019 ONCA 527, the appellate court confirmed, a 90 day enhanced credit granted by a lower court although rejecting a Charter challenge based on the constitutionality of s. 719 and s. 719(3.1) of the Criminal Code, affirming the judge's additional "mitigation of sentence".

[66] There are also many lower court decisions that have either granted a reduced sentence or formally granted an enhanced credit for time spent in custody under harsh conditions. Examples of the reduced sentence approach is found in R. v. Morgan, 2019 ONCJ 524, where the justice found harsh conditions, but chose not to give enhanced credit but instead reduced a sentence from three years to 1,000 days, a reduction of the sentence by about 105 days; in R. v. Chan, 2019 ONSC 1400 (Ont. S.C.J.) where an accused was placed in solitary confinement for all but one week of 122 days of pre-sentence custody, an additional enhanced credit of six months was found to be warranted; R. v. Siddiqui, 2019 ONSC 603 where a 45 day reduction in sentence was granted for harsh conditions including 59 days of lockdown.

[67] In R. v. Turner, 2019 ONSC 4432, the judge calculated the number of hours of lockdown as totalling 29 days and then awarded an enhanced credit of an additional 60 days.

[68] In R. v. Inniss, 2017 ONSC 2779, the judge granted a reduced sentence of a year, where evidence was lead of 319 lockdowns in a three year period of presentence custody; in R. v. Jama, 2018 ONSC 1252 (Ont. S.C.J.), evidence was lead of 175 days of lockdowns out of 511 days of pre-sentence custody with 95 days of full lockdown; the justice granted four months of enhanced credit in that case.

[69] In R. v. Silenevich, 2017 ONCJ 42, where the offender was transferred to protective custody as a result of a fight, on her previous range, through no fault of her own, the justice awarded an enhanced credit, using a factor of 1.6 to 1, rather than the "norm" of 1.5 to 1.

[70] In R. v. Simeunovich, 2018 ONCJ 581, where the offender was beaten in pre-sentence custody, the judge awarded an enhanced credit of 1.7 to 1. In R. v. Linseman, 2019 ONCJ 304, the accused was assaulted and suffered a scratched cornea and was given a credit of an additional 60 days mitigation of sentence.

[71] In R. v. Hague, 2019 ONCJ 466, the offender was severely beaten in jail. The justice was reluctant to use any form of a mathematical ratio to calculate the extent of any enhanced credit but did grant credit above the 1.5 to 1 ratio, granting credit for an actual period of pre-sentence custody of seven months and five days, increasing the credit to an even year, which approximated the 1.7 ratio.

[72] In R. V. McIntyre, 2017 ONSC 360, the defence challenged the constitutionality of the Criminal Code sections that statutorily limited credit to the ratio 1.5 to 1, setting out the history of the treatment of pre-sentence custody prior to the amendments to the legislation:

55 Mr. McIntyre also challenges the pre-sentence custody provisions contained in s. 719(3.1) of the Criminal Code, which limits pre-sentence custody to an effective rate of 1.5 for every day spent in custody.

56 He argues that the provision violates sections 7 and 12 of the Charter by failing to provide proportionality in sentencing to the offence.

57 Prior to statutory amendments made by the Truth In Sentencing Act, S.C. 2009, c. 29, (TISA), a sentencing judge had discretion in determining the amount of credit where the offender had, prior to sentence, been incarcerated. The standard discount became two days' credit for each day spent in custody leading up to sentence. Whilst never formally enshrined, this practice found favour at the appellate level: R. v. W. (L.W.), 2000 SCC 18 (S.C.C.), at para. 45; R. v. Rezaie (1996), 112 C.C.C. (3d) 97 (Ont. C.A.). The credit was designed to compensate for disadvantageous conditions, such as a lack of programming as well as the absence of a remission mechanism that would apply only after an offender had been sentenced.

58 In the years leading up to the TISA, the 2:1 credit began to increase in cases where the sentencing judge was presented with evidence that an offender had suffered extremely harsh conditions whilst awaiting sentence: see, for example, R. v. Kravchov (2002), 4 C.R. (6th) 137 (Ont. C.J.); R. v. Jabbour, [2001] O.J. No. 3820 (Ont. S.C.J.); R. v. Permesar, [2003] O.J. No. 5420 (Ont. C.J.).

59 The dramatic increase in pre-sentence credit attracted the attention of Moldaver J.A. (as he then was) in R. v. B. (J.) (2004), 187 O.A.C. 307 (Ont. C.A.), where he expressed concern in a footnote, stating:

The Crown did not challenge the four-year figure. For my part, I find it disturbing that eighteen months of actual pre-trial custody can translate into a credit of four years. It seems to me that lately, the issue of credit for pre-trial custody is taking on a life of its own. Unchecked, it can skew and even swallow up the entire sentencing process. In short, it may be time to revisit the manner in which credit for pre-trial custody is assessed. However, since the matter was not raised or argued, it is best left for another day.

60 Enter the TISA, Parliament's pronouncement on the issue creating a new regime of pre-sentence custody credit which amended s. 719(3) of the Criminal Code to read as follows:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody

Exception

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

Thus, the 2:1 "norm" was replaced by a credit of 1:1 unless "the circumstances" justified an enhanced rate of 1.5:1 credit.

Pre-Sentence Custody After Summers

61 On a plain reading of s. 719(3.1), it would appear that Parliament intended the "norm" to be credit awarded on a 1:1 ratio with a further exception of 1.5:1 if circumstances justified the increase. In R. v. Summers, 2014 SCC 26 (S.C.C.), the Supreme Court of Canada clarified the position: "circumstances" justifying enhanced credit under s. 719(3.1) could include loss of eligibility for early release and parole. Since a pre-sentence prisoner could only take advantage of the early release mechanism after conviction and sentence, the 1.5:1 award, in effect, became the new "norm."

[73] The court in McIntyre, 2017 ONSC 360, rejected the constitutional challenge to s. 719(3.1), stating that "particularly harsh" conditions in pre-sentence custody could be remedied by a reduction of sentence.

[74] In R. v. Fermah, 2019 ONSC 3597, the judge granted an enhanced credit beyond the 2 to 1 ratio citing the many negative impacts that incarceration had on the offender.

In my view, the cumulative effect of all of these conditions is such that Mr. Fermah should not be required to serve any more time. In the past, judges have seen fit to give 3:1 credit for time served in unacceptable jail conditions. In R. v. Smith 21 (a firearms case) and R. v. Permesar 22 (a break and enter), Schneider J. commented on the "chronically sub-standard" conditions at the Toronto Jail, including overcrowding and frequent lockdowns, and allowed credit on a 3:1 basis "as a starting point". In both cases, the sentence imposed was satisfied by the presentence custody already served. 23 The "inhumane" conditions at the Toronto Don Jail also resulted in 3:1 credit in my decision in R. v. Lowe 24, Ormston J.'s decision in R. v. Poirier 25, and MacDonnell J.'s decision in R. v. Miller 26. Terrible conditions in other jails have also resulted in 3:1 credit, or above. In R. v. Kravchov 27, Kenkel J. gave credit of 24 months for seven months in presentence custody, resulting in no further time to serve on a sentence for a sophisticated car theft enterprise. The relevant factors in that case were severe overcrowding, health concerns from tuberculosis exposure, frequent lockdowns and violent incidents, a lack of recreational and rehabilitative programs, and a public service strike at the Metro West Detention Centre.

[75] In Fermah, the sentencing judge ultimately granted 84 months or time served for 30 months of presentence custody for a multitude of deficits and issues, which created unusually harsh conditions.

[76] In light of the lack of a successful Charter challenge to date of the Criminal Code provisions of s. 719(3.1), how is it possible for a court to award a greater credit than the maximum set out in the Criminal Code?

[77] In R. v. Cunningham, 2019 ONCJ 559, the justice opined as follows, citing the Supreme Court of Canada decision of R. v. Suter, 2018 SCC 39, [2018] S.C.J. No. 39:

Absent a constitutional challenge, it is the view of this Court that it cannot give credit above 1:5 to 1. Duncan cannot be viewed as striking down that legislation.

8 That being said, particularly harsh circumstances of incarceration may have an impact on the fitness of a sentence.

9 The proper paradigm through which to analyze the impact of particularly harsh circumstances of incarceration is not by increasing pre-sentence custody above 1:5, but is through the collateral consequence analysis advanced in Suter. 2

Though collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2 (a) of the Criminal Code — as they do not relate to the gravity of the offence or the level of responsibility of the offender — they nevertheless speak to the "personal circumstances of the offender" (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code. [2] The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the others, rendering a given sentence unfit. 3

10 There is no rigid formula for taking collateral consequences into account. 4 Ultimately, particularly harsh conditions of incarceration may render a fit sentence unfit.

[78] This court adopts a similar analysis to Cunningham, supra. There has been no determination or striking down of s. 719(3.1) by the courts, but our Ontario Court of Appeal has on five occasions considered the comments in Duncan, and approved of the decision that allows for more than a credit of 1.5 to 1 being granted for harsh conditions of incarceration. The Ontario Court of Appeal in Passera appears to support such an approach.

[79] The conclusion that credit can be given above 1.5 to 1 must either be based on an implicit assumption that s. 719(3.1) will not withstand Charter scrutiny or adopt the analysis set out in Cunningham that these are other factors the court can consider in arriving at a fit sentence and harsh jail conditions can be used to justify a reduction or mitigation of an appropriate sentence.

[80] The court adopts the latter "other factors" analytical approach, in the absence of any successful Charter challenge to s. 719(3.1).

[81] A brief summary of the case law on the issue of enhanced credits is as follows:

1. Although the legislation speaks of a standard 1 to 1 ratio, for pre-sentence custody, the norm post Summers, supra has set 1.5 to 1 ratio as the "normal" ratio.

2. The Ontario Court of Appeal in Duncan, supra, recognized the ability of the court to grant more than 1.5 to 1 credit for pre-sentence custody.

3. The existence of "lockdowns" in and of themselves will generally not be sufficient in establishing an enhanced credit. R. v. Duncan – proof of impact on the offender is needed.

4. There is no standard or universal approach in calculating an appropriate enhanced credit, if any;

5. In the words of Justice McKay in R. v. Linseman, supra, "each application is a qualitative, fact dependent exercise of discretion."

6. Some courts have found that very harsh pre-sentence custody may demonstrate a basis for enhanced credit even in the absence of evidence as to the effects on the offender.

7. Some courts have applied a mathematical factor to pre-sentence custody of 1.6, 1.7, 2.0 or even 3.0 or higher.

8. Some courts apply or grant a specific time period of enhanced credit without reference to any factor such as a period of 30 or 90 days.

9. Courts, such as Cunningham, do not increase the credit above the 1.5 to 1 ratio but use the harsh pre-trial conditions to further reduce the sentence imposed.

[82] Based on the evidence before me I find that the defence has proven that the offender has faced harsh conditions which caused him adverse effects, which justify mitigation of sentence above the standard 1.5 – 1 ratio based on the following findings:

1. The offender faced lockdowns or denial of yard time for approximately 75 days since the period of time that he was incarcerated further reducing his liberty in the jail.

2. He was double bunked in a cell and slept on a mattress on the floor for most of his sentence.

3. Due to an over sight, not only was this individual kept for more time in his cell during lockdowns, he was kept in his cell for all meals for most of his presentence custody, reducing his time outside cells and requiring him to eat his meals on the floor in his cell.

4. Due in part to eating in his cell, I find this exacerbated ongoing issues with ants in the cell resulting in ants crawling over the offender on occasion as he slept on the floor in his cell.

5. I find that there was an adverse impact on the offender in that crawling insects caused him distress while he was trying to sleep and being kept in his cell for extended periods of time in contravention of what liberties he should normally be entitled to resulted in an increase in his inability to sleep and increase in his anxiety levels which necessitated an increase of medication for anxiety and sleep problems.

[83] Given my findings above I will use the analysis in R. v. Cunningham, supra, relying on the Supreme Court of Canada decision in R. v. Suter supra, to simply classify, the harsh period of incarceration as other collateral factors justifying a further mitigation in the sentence than what I would otherwise have ordered.

[84] The court finds that a reduction of the sentence of incarceration of the offender, in the circumstances described above, will be for a period of 90 days, above the "normal" 1.5 to 1 ratio.

Length of Appropriate Sentence

[85] In this case, the Crown suggested the appropriate sentence would be two years' incarceration less a day while defence counsel suggested that an appropriate sentence would be for a period of 400 days.

[86] Neither Crown nor defence counsel have suggested any order dealing with the issue of restorative justice, whether by an order for restitution in a stand-alone order or as a condition in a probation order. Both counsel have suggested a two year probation order should be ordered while the maximum length of order that I can make is for a period of three years. This is an individual who apparently has done well under a period of community supervision to the extent that the previous probation officer indicated:

… this offender presents as a suitable candidate for community supervision should same be a future consideration given his amenability to helping resources and favourable motivation for change.

[87] The types of problems this offender possesses will likely require an extended period of time to address, for example, addictions issues and mental health issues which would benefit from long term supervision. This is especially true for this offender who has a previous history of reporting reliably and regularly.

[88] As of this day, the offender has been in custody for 219 days. On the usual 1.5 to 1 factor, the standard ratio, the offender shall be given a credit of an additional 110 days for a total of 329 days. In addition, I found that the offender should be given an additional credit for 90 days for a total credit, as of this date, of 419 days.

[89] The court intends to impose a sentence that deals with the appropriate principles of sentencing as set out in the Criminal Code and based on the applicable case law, recognizing that this offender is an indigenous person who has committed numerous property offences, based on all mitigating and aggravating factors and circumstances of the offences and the offender as set out above. I hope to address issues of denunciation and deterrence, rehabilitation, and restorative justice.

[90] The court finds that an order for a lengthy extended period of incarceration from today's date will not provide either increased general deterrence for the community nor provide any more specific deterrence for this offender.

Conclusion and Sentence

a) I find a sentence of 15 months or 455 days incarceration to be appropriate for this offender for the commission of these offences. This is a sentence in a range between what the defence and the Crown have proposed. I have elected to increase the period of probation by one year and order a stand-alone restitution order, where the likelihood of repayment is possible for this offender. I have considered Gladue, and Ipeelee, and the alternatives to a lengthier period of incarceration. The period of incarceration that I have imposed is not unduly harsh and I hope will help facilitate the rehabilitation aspect of my sentence. The accused has been given credit for a total of 419 days, which means the accused will be sentenced to an additional period of incarceration from today's date of 36 days. This sentence is one that has aspects of specific and general deterrence, and expresses the court's denunciation for the offences committed.

b) The offender shall be placed on a period of probation for the maximum period in law that I can impose, which is for a period of three years. This order shall have mainly rehabilitative aspects as well as protective aspects for the various victims.

[91] The terms and conditions of the probation order shall be as follows:

1. The probation shall be a reporting probation order – the offender shall report within three days of his release from custody;

2. The offender shall stay away from the residences/complexes that he victimized. The Crown was to provide a list to the clerk confirming these addresses;

3. The offender shall attend and actively participate in counselling as directed by the probation officer including counselling for substance abuse and mental health;

4. The offender shall sign consents to allow the probation officer to investigate any programming or issues;

5. The offender shall continue to attend appointments with his mental health provider and shall continue to take medication as recommended by his mental health providers.

[92] The most important aspect of my sentence requires the offender to get the help he needs for his criminogenic behaviours including substance abuse and any counselling and treatment to deal with his mental health.

c) Given the court's view that the court should also order some form of restorative justice, I will order stand alone restitution orders for the victims of these crimes. For the estimates of the thefts that were provided I will impose the lower limit of those estimated thefts and damages as set out in the facts that were read into the record and not disputed by the offender. I would ask the Crown to provide names and addresses of the victims and the amounts that they have lost.

[93] I have elected to put this remedy in a stand alone order rather than as a condition of the probation order because the court is uncertain whether the offender will be able to pay back the stolen amounts and damages he caused within the term of the probation order. The court recognizes that priority must be given to the rehabilitative nature of this order and the offender must get the help he needs through programming and counselling before he can concentrate on providing restitution to the victims of his crimes.

[94] Several ancillary orders will also be made by the court. The court shall order DNA orders on the break and enter charges which are primary compulsory offences on Information number 796, counts 8, 13, 32, 37, 39, 50.

[95] The court in considering the appropriate sentence will impose one day time served on count number 8 on Information number 796. On that count, the court takes into consideration pre-sentence custody of 219 days, giving credit on the 1.5 to 1 ratio, for a total credit of 329, and in addition the court assigns a further mitigation of sentence for harsh pre-sentence conditions of 90 days. The actual sentence on count 8 will therefore be one day time served, followed by probation for the three year period with conditions as earlier described. The sentence for the balance of the counts in that Information will be one day time served.

[96] There will be a sentence of 36 days consecutive on the single count pled to on Information number 331. There will be a stand alone restitution order as I have described earlier.

Released: September 17, 2019

R. Kwolek, Justice of the Ontario Court of Justice