Ontario Court of Justice

Date: 2020-04-08

Court File No.: Sault Ste. Marie 002910-19, 2909-19

Between:

Her Majesty the Queen

— AND —

Jordan Alan McConnell

Before: Justice R. Kwolek

Heard on: April 7, 2020

Reasons for Judgment released on: April 8, 2020

Counsel:

• K. Pritchard, for the Crown
• B. Willson, for the Accused

KWOLEK J.:

REASONS FOR SENTENCE

Summary of Facts

[1] The offender pled guilty to a total of 10 Criminal Code offences; three Controlled Drugs and Substances Act offences and one count of driving while his licence was suspended contrary to the Highway Traffic Act.

[2] The offender has been in custody since November 16, 2019.

[3] The offender's pre-sentence custody, as of today's date, is by my calculations, 145 days pre-sentence custody with the court awarding an enhanced credit of an additional 73 days for a total period of incarceration of 218 days. Just short of seven months custody.

Crown Position

[4] The Crown's position was a global sentence of fifteen (15) months incarceration, less credit for pre-sentence custody, plus probation.

Defence Position

[5] The defence global position, when this matter was argued on April 7, 2020, was that a period of incarceration of time served, plus probation to follow and a fine for the Highway Traffic Act matter would be appropriate.

Evidence at Sentencing Hearing – Circumstances of Offences

[6] On the 16th day of November 2019, the Wawa detachment of the Ontario Provincial Police received a call from an auto dealership that someone had broken into a patrol cruiser at the dealership. When the police attended, they found a number of items were taken including handcuffs and a DNA kit while other more expensive items were left behind.

[7] Another local automobile dealership advised that there was a suspicious person in the area who appeared to be entering vehicles. This individual was detained by the police and found to be in possession of various sets of keys, a number of pieces of identification which were not his, as well as loose cash and some pills. Further investigation and review of surveillance cameras revealed that the accused had taken a yellow F-150 vehicle. Another vehicle had been moved by the offender. In the F-150 vehicle the police found the missing DNA kit from the police cruiser as well as 2 back packs containing various break and enter tools. The police also found bullets stored improperly in the vehicle and discovered stolen children's toys, five automobile licence plates, a passport that was not his and a high visibility winter jacket.

[8] The accused was also found with small amounts of chlorazepam and methamphetamine.

[9] The surveillance video showed the accused driving a motor vehicle and the accused's licence had been suspended. The accused was also subject to an undertaking with certain conditions including a condition that he not possess any unlawful drugs and that he not have lawful control of a motor vehicle.

Criminal Record and Background of Offender

[10] The offender has a prior criminal record. His criminal record includes the following:

2013-05-27 Sarnia – uttering threats and failure to attend court; the accused was sentenced to five days of pre-sentence custody plus probation for a period of 12 months;

2015-02-06 Sault Ste. Marie – various property offences and possession of a schedule II substance where his sentence, including pre-sentence custody, appears to be for a period of 116 days plus one year of probation.

2016-10-20 Owen Sound – various property offences including possession of property over $5000; four counts of possession of stolen property as well as dangerous operation of a motor vehicle. He appears to have been sentenced to a period of two years jail plus 78 days pre-sentence custody.

2017-08-18 Kingston – he was convicted of dangerous operation of a motor vehicle; flight while pursued by a police officer; possession of property obtained by crime over $5000 and failure to appear in court. These charges were laid by the Lambton County Ontario Provincial Police. He appears to have received an additional five months in custody for these charges.

The Offender

[11] The offender is currently 28 years of age. He apparently was raised by an abusive father who was a drug addict and died of a drug overdose. He has a Grade 9 or 10 education and suffers from post traumatic stress disorder and suffers from addiction issues.

[12] He has advised that he has recognized his addiction and has secured a treatment bed in a substance treatment centre for April 14th. I frankly am not confident that he can in fact obtain a bed in treatment given the restrictions that are becoming more onerous in our country as time goes by relating to the COVID-19 pandemic.

Aggravating Factors

[13] The offender has pled guilty to numerous property offences, including theft of an automobile, Controlled Drugs and Substances Act offences, improper storage of ammunition and breaches of a court release document. The offender has prior convictions for similar property crimes and has been previously sentenced to lengthy periods of incarceration. There were multiple victims in this case although it would appear that much of the stolen property was recovered.

Mitigating Factors

[14] The guilty pleas entered by the offender are indicative of remorse. 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

[15] Defence Counsel argues that although a lengthier period of incarceration may normally be warranted, we are in exceptional circumstances due to COVID-19 and any jail sentence should consider the pandemic as a factor.

[16] The world is in the middle of a COVID-19 pandemic. The virus has caused thousands of deaths and, thus far, there have been well over a million confirmed cases of the virus across the world. Even heads of state have become seriously ill as a result of this virus. It is expected that this virus will cause thousands of deaths in Canada and has caused many thousands of deaths around the world. Currently, elderly residents and those persons with underlying health conditions are particularly susceptible to serious consequences from the virus although the virus has killed people of all ages. Currently, the worst outbreaks in Canada have occurred in old age care homes with many cases and a disproportionate number of fatalities.

[17] Those locked up in close quarters will be at risk if an outbreak occurs in an institution. There appears to have been a concerted effort to release from custody those individuals who do not pose a risk to the safety of the public.

[18] Although it is acknowledged that a period of incarceration was required for this offender who has committed a series of property and other offences, counsel for the defence suggests the total period of pre-sentence custody would be an appropriate disposition for a series of petty thefts from vehicles and where it appears that much of the stolen property including the vehicle was recovered.

[19] Counsel for the Crown has submitted a document to the court, that was not objected to by defence counsel, described as "Information Note – Institutional Services response to COVID-19, April 6, 2020." That document is at best a snapshot in time, assuming such document is accurate, about the state of correctional facilities and COVID-19. It does indicate a minimum number of positive COVID-19 test results for inmates and staff as of that date.

[20] The document notes that there has been a reduction of inmates in custody at provincial institutions describing a 26% reduction, over what time period, is not clear. There have reportedly been concerted efforts to reduce individuals incarcerated including proactively attempting to release inmates who have less than 30 days remaining in their sentence.

[21] The document reports that "where safely feasible, non-custodial options are considered by the Court for individuals charged with non-violent or less serious offences."

The Law – Appropriate Sentence

[22] The relevant principles of sentencing are set out in section 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.

[23] Given the aggravating factors in this particular case, it is clear that a period of incarceration was necessary to denounce the actions of the accused and to deter this offender and others from similar behaviour in the future. Is a further period of custody necessary at this time for this particular offender?

[24] Does this court have an ability to fashion a sentence that denounces and deters yet is able to focus on the offender's rehabilitation while recognizing the challenges that we are all facing as the result of COVID-19? The court is directed by the legislation and the case law to fashion an appropriate disposition with alternatives to custody considered for all offenders.

Legal Analysis for Appropriate Sentence

Length of Appropriate Sentence

[25] In this case, the Crown suggested the appropriate sentence would be 15 months incarceration less credit for pre-sentence custody while defence counsel suggested that an appropriate sentence would be to consider the pre-sentence custody being the equivalent of approximately seven months incarceration, as time served, to be followed by probation. The offences although many in number, are mostly petty thefts from automobiles, and are part of a spree that occurred over a period of about 24 hours, fueled by a substance abuse addiction.

[26] There are a number of cases that have dealt with the impact of COVID-19 on the criminal process.

[27] Justice Edwards in R. v. Nelson, 2020 ONSC 1728, denied the accused's request for bail based on the COVID-19 crisis stating as follows:

At one extreme we simply keep everyone who is already locked up pending their trial locked up. At the other extreme we release everyone for fear their continued incarceration would be little different from being a passenger on a cruise ship, albeit a cruise ship behind bars. Neither extreme, in my view, is appropriate. …

This is a case where given the seriousness of the charges; Mr. Nelson's prior criminal record, the weakness of the proposed plan of release, and the absence of medical evidence demonstrating that Mr. Nelson may be more susceptible to contracting the virus and/or a heightened risk of symptomology, I am not satisfied that there would be confidence in the administration of justice if Mr. Nelson was released from jail. The application is dismissed.

[28] In R. v. Kandhai, 2020 ONSC 1611, it appeared that Justice D.E. Harris made a point of bringing forward the case involving that offender, for the purpose of imposing a sentence of time served, in part due to the circumstances of COVID-19.

[29] In the recent case of R. v. T.K., 2020 ONSC 1935, another bail review case, Justice A.J. Goodman quoted the World Health Organization comments about those in custody:

Yet, as mentioned, we currently live in extraordinary and very challenging times. I take a moment to refer to the World Health Organization's March 15, 2020 (Europe) report entitled:

Preparedness, prevention and control of COVID-19 in prisons and other places of detention: Interim guidance.

The preamble states:

People deprived of their liberty, such as people in prisons and other places of detention, are likely to be more vulnerable to the coronavirus disease (COVID-19) outbreak than the general population because of the confined conditions in which they live together for prolonged periods of time. Moreover, experience shows that prisons, jails and similar settings where people are gathered in close proximity may act as a source of infection, amplification and spread of infectious diseases within and beyond prisons. Prison health is therefore widely considered as public health. The response to COVID-19 in prisons and other places of detention is particularly challenging, requiring a whole-of-government and whole-of-society approach...

[30] Similarly, in R. v. T.L., 2020 ONSC 885, Justice Molloy also released the accused on a bail review given the length of time it was anticipated that the accused would have to wait before his matter would be reached for trial given the lack of trials being held in the courts.

[31] Counsel for the defence also cited Justice K.A. Crosbie's comments in R. v. Laurin, [2020] O.J. No. 1266. Justice Crosbie ultimately rejected the request that he order that the accused be assessed time served for driving in a dangerous manner that resulted in someone's death. The judge, however, made the following comments:

In relation to my earlier comments about the pandemic, should I have determined that a fit sentence required only a few months more of custody to meet the goals of sentencing, I would have had little hesitation in reducing the sentence to reflect time served.

[32] The Crown argued that the offender had previously been sentenced to a period of two year's incarceration for similar offences in 2016 and that such sentence should therefore be elevated. The offender is not being sentenced for previous crimes. The previous criminal record is considered by the court in determining what the appropriate disposition should be.

[33] The offender is being sentenced in the middle of a pandemic for property crimes. Courts have taken the view that, given the risks faced by individuals who are incarcerated, although the inmates who truly prove a risk to society should remain incarcerated, others who do not pose such a risk to society should be released if such a disposition is possible and appropriate.

[34] The court when it imposes its sentence must recognize and consider, COVID-19 implications and the sentencing provisions of the Criminal Code including section 718.2 of the Criminal Code.

[35] Given the accused's lack of any history of violent offences, and his entering of guilty pleas and expressions of remorse, together with his plan for dealing with his substance abuse issues, the court finds that a global sentence of about eight months would have been appropriate. As the offender has already served the equivalent of a sentence of about seven months, there is nothing to be gained and much to lose by continuing his incarceration.

[36] Considering all mitigating and aggravating factors and the current world crisis regarding COVID-19, the court finds that the appropriate sentence would be time served. The court believes that a lengthier period of probation rather than a lengthier period of incarceration at this time would assist the accused and ultimately society. A previous lengthy period of incarceration did not deter this individual from re-involving himself in criminal activity.

[37] Given the current restriction in the provision of services due to COVID-19 concerns, the amount of contact by this offender in the immediate future with a probation officer may be fairly minimal.

[38] The offender has advised that he has recognized his substance abuse problem and is now ready to do something about it. Time will tell whether he is truly sincere and committed to deal with his issues of substance abuse. I am not so naïve to believe that just because the offender has advised the court of his plans to deal with his substance abuse issues that he will successfully deal with such issues. Even if he follows through and enrolls in treatment, he will still face a lifetime battle to maintain his sobriety. For his sake and for the sake of the community the court hopes that he will be successful.

[39] Hopefully the concerns with respect to COVID-19 will subside and the legacy of this sentence order, including a lengthy probation order, will assist in rehabilitating this offender.

Conclusion and Sentence

[40] I find a sentence of seven to eight months' incarceration to be appropriate for the charges before the court. Under the current circumstances, that sentence can be best addressed by a sentence of time served followed by a lengthy period of probation.

[41] This sentence is one that has aspects of specific and general deterrence and expresses the court's view of the appropriate penalty for the offences committed and provides a disposition that addresses issues of rehabilitation.

Sentencing Order

1) The lead count shall be count number 25, theft of the motor vehicle.

I will use the full amount of the pre-sentence custody, namely 145 days; giving an enhanced credit of 73 days for a total sentence of 218 days with a sentence of one day time served.

2) With respect to the charges dealing with substance abuse – count 20 will be the lead count and I will suspend the passing of sentence and impose a probationary period of three years – the maximum that I can impose by law. The Federal Crown sought a 30-day jail sentence concurrent on these charges – since the sentence is time served, I will impose a period of probation on those charges which shall also include concurrent periods of probation for counts 14 and 18.

3) Based on the criminal record that I have, the accused was last placed on a period of probation in 2015. A term of probation can hopefully assist the offender in dealing with his substance abuse and other issues.

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

1) The offender shall report to a probation officer within 5 days of his release from custody; the reporting condition will terminate when the probation officer determines that the offender has completed any recommended counselling.

2) The accused shall have no contact of any kind whatsoever with Jules Engelhart and John Parker; he shall remain 100 metres away from those individuals and he shall not attend within 100 metres of their residences or their places of employment or any place where they may be;

3) The offender shall attend and actively participate in counselling as directed by the probation officer including but not limited to substance abuse. I expect those issues will take a long time to resolve and will require the commitment of the offender to get the help he needs. Should the offender complete the counselling required as directed by the probation officer then he will no longer have to report.

4) The offender shall sign consents to allow the probation officer to investigate any programming to deal with outstanding issues.

5) The offender shall not possess any identification debit card or credit card that is not in his name.

[43] On the balance of the counts in information 355 being counts 1, 2, 6, 7, 13, 16, 17, 21, and 23 the sentence will be one day time served.

[44] With respect to count 16, there will be a weapons prohibition pursuant to section 110 for a period of two years;

[45] With respect to count number 1 – there will be a DNA order as this is a secondary designated offence – the offender shall attend for DNA testing at the sally port – at the court house – by tomorrow at 3:30 p.m.

[46] Count 21 – there will be a driving prohibition for a period of three years;

[47] There will be a forfeiture order for the ammunition – pursuant to section 491, and forfeiture of any other items seized under 490(9) of the Criminal Code unlawfully in the possession of the offender. In addition, the drugs seized shall be forfeited to the Crown;

[48] With respect to the provincial offences charge of operating a conveyance when his licence was suspended there will be the minimum fine of $1000 and a licence suspension for an additional six months. The offender shall have two years to pay the fine and the victim surcharge.

[49] Under the current circumstances, the court finds undue hardship for the offender and will waive the imposition of any victim surcharge on the Criminal Code charges.

[50] The balance of the counts that have not been pled to shall be withdrawn at the request of the Crown.

Released: April 8, 2020

Signed: "Justice R. Kwolek"