Court File and Parties

Date: January 15, 2020

Court File Nos.: 0611-998-19-373, 0611-998-19-492

Ontario Court of Justice Central West Region At Orangeville

Between: Her Majesty the Queen — and — Jeremy Scott

Before: Justice Richard H.K. Schwarzl

Heard on: December 18, 2019 and January 8, 2020

Reasons released on: January 15, 2020

Counsel:

• Ms. Melissa Occhiogrosso for the Crown
• Ms. Carrie Bellan for the Offender

Reasons for Sentence

1.0: Introduction

[1] On March 28, 2019 the offender, Jeremy Scott, was charged with possessing cocaine and fentanyl. Three weeks later on April 19, 2019 he was charged with a number of other offences including driving in violation of three prohibition orders. Upon his arrest for the April, 2019 offences, the offender was held for bail. He has remained in custody until the present time.

[2] On December 19, 2019 the offender entered pleas of guilty to the drug offence and to three charges of driving while disqualified. The Crown proceeded by indictment on all charges. A sentencing hearing commenced which continued on January 8, 2020.

[3] The parties do not agree on the appropriate sentence. The prosecution seeks a global sentence of 22 months less pretrial custody credited at 1.5:1 and a lifetime driving prohibition. The defence submits that a global sentence of 17 months is fair. They submit that credit should be awarded at 2:1 for the entire period of pre-trial detention, resulting in a "time served" sentence to be followed by probation with an emphasis on rehabilitation. The offender does not oppose the lifetime driving prohibition.

2.0: Circumstances of the Offences

2.1: The Drug Offence

[4] On March 28, 2019 the offender was in Orangeville when he had an encounter with the police, resulting in his arrest. Upon searching the offender incident to arrest, he was found to be in possession of 1.5 grams of cocaine and 0.2 grams of fentanyl. The offender was cooperative with the police and warned them that he had fentanyl which they appreciated given the highly dangerous nature of that drug. The substances he was in possession of were very serious, dangerous narcotics.

2.2: The Driving Offences

[5] On April 19, 2019 the offender was caught driving a car in Orangeville by an officer who knew that he was disqualified from doing so by reason of a prohibition order. Investigation revealed that the offender was driving in violation of three driving prohibition orders; one from 2013, another from 2015, and the third from 2017. These offences were blatant violations of multiple court orders.

3.0: Circumstances of the Offender

3.1: Personal Circumstances of the Offender

[6] Jeremy Scott is 38 years old. He comes before this court with eight prior sentencings and twenty-three convictions, including two prior convictions for drug possession and nine prior convictions for driving while disqualified. His criminal record reveals that all but one conviction resulted in custodial dispositions.

[7] Prior to being incarcerated on these offences the offender was self employed. It is not known if that employment will continue when he is released on these crimes. He has a stable relationship with a woman with whom he resides together with that lady's child.

[8] The offender has been addicted to cocaine for more than ten years and addicted to fentanyl for three years. He suffers from chronic back pain that requires regular medication.

3.2: Circumstances of the Offender's Pre-trial Detention

[9] Between April 19, 2019 and January 15, 2020 the offender has spent 270 days in pre-trial detention at the Maplehurst Correctional Complex ("Maplehurst") in Milton. At the sentencing hearing, Ms. Johanna Gallaghar, a supervising security manager at Maplehurst, testified and brought records concerning the offender's detention, being the offender's Inmate Records (Exhibit 1) and Medical Records (Exhibit 2). Updated Inmate Records (Exhibit 5) were filed later, after Ms. Gallaghar gave evidence.

[10] All of the offender's pre-trial detention has been spent in the Step Down Unit (SDU). Ms. Gallaghar provided the following relevant evidence about the SDU. Included in the Inmate Records (Exhibit 1) is a one page summary describing the SDU. It is an area that houses half the normal number of inmates: 16 instead of the usual 32. It is occupied only by inmates who wish to be away from the general population. She said admission in the SDU is entirely voluntary. No cell in the SDU ever has more than two persons per cell. As a result, inmates in the SDU are given greater privacy and less competition for resources than in the general jail population. Given the nature of the SDU, inmates are less prone to intimidation or manipulation by other inmates compared to those in the general inmate population. On the other hand, inmates in the SDU have less time out of their cells, generally between two to four hours per day versus six and a half hours a day for other inmates. Like those in the general population, cells for inmates of the SDU have metal furniture, rudimentary bedding and mattresses, and no pillow. Full programming for inmates is available to all SDU inmates as are visits, access to telephones, and all of the same privileges given to those in general population. Ms. Gallaghar acknowledged that life in the general population of Maplehurst is presently more aggressive and violent than ever, making the SDU a safer unit.

[11] Ms. Gallaghar was very clear that not only is admission to the SDU voluntary, but that inmates in that unit are actively encouraged to return to the general population. No inmate can be forced to go the SDU nor can they be forced to leave once they are admitted. She said that written requests to be transferred to the general population are granted.

[12] The offender testified that he was involuntarily admitted to the SDU and that he made many requests to be returned to the general population but those requests were always ignored, including after being attacked by other inmates. He did not disclose at least one of the attacks. In cross-examination the offender stated that he had asked twice to leave the SDU, which cannot be equated with "many" requests as he said earlier. With respect to his lodging in the SDU, the offender said that "there are fewer politics there because there are fewer people on my range" and "guys my age can avoid conflicts that occur in regular population." He said that he would have rather been in the general population because inmates in the SDU are accused of hiding out and not getting along with other people.

[13] I do not believe the offender that he was admitted involuntarily to the SDU nor that he was denied permission to return to the general population for the following reasons. First, an Inmate Record Note dated January 3, 2020 (Exhibit 5) states that when the offender requested to be moved from the SDU, the Unit Sergeant noted that he would be moved as he wished. He chose to remain on the SDU due the fact that his court date was in only five more days. This evidence (a) supports Ms. Gallaghar's testimony that requests to leave the SDU are not denied and (b) his request was not ignored but was acted on immediately, suggesting that if he had in fact made an earlier request as claimed, it surely would have been honoured at once. Second, given (a) Ms. Gallaghar's evidence that SDU inmates are encouraged to return to general population and (b) the offender's choice to remain in the SDU despite being told he could return to general population at once, his assertion that he was there involuntarily does not hold water.

[14] The offender is a cocaine and fentanyl addict. One week after being detained, he suffered a heart attack in custody. The offender explained that it was caused by the effects of withdrawal from those drugs, which he had not used since his admission. He was brought to hospital and treated, returning to Maplehurst with doctor's instructions to come back to the hospital if he experienced significant symptoms. He never did experience such symptoms, having got over his withdrawal symptoms after a month or so in detention.

[15] The offender received ongoing medical attention for the purposes of receiving and administering medication, dental care, seeing a doctor several times a month, and care for at least one injury. That injury was suffered when the offender was stabbed during an altercation with another inmate. He lied about the cause of the injury so as to avoid being labelled a rat by inmates. He said at least one visit to the dentist was for dental surgery required due being injured in another assault by inmates.

[16] From time to time during his pre-trial detention, requests for medical attention were delayed for a few days, but it appears no requests were never denied. There was no evidence of the impact of such delays on his health.

[17] Over the course of his detention, two of the four of the offender's requests to see a social worker were not responded to. All his requests appeared to be to arrange post-detention in-patient rehabilitation. In an Inmate Record Note dated January 2, 2020 (Exhibit 5) the offender was spoken to by a social worker who explained that applications and assessments for such rehabilitative programmes are processed only when sentencing has happened. Accordingly, since the offender was not yet sentenced, his unanswered earlier request to discuss rehabilitation with a social worker caused him no undue hardship.

[18] During his pre-trial detention, fourteen programmes were available to him as they were to all inmates. These included substance abuse programming and addiction counselling and studies. The offender did not access any drug programming, but he did access and complete a conflict resolution seminar through the Worship Services (Exhibit 3).

[19] The offender testified that despite hard drugs, including fentanyl, being readily available to him in prison, he avoided them despite being severely tempted. Ms. Gallaghar confirmed that the smuggling of drugs into Maplehurst is a serious problem which has led to many overdoses and even fatalities. The offender said that he witnessed many overdoses in the SDU. Due to his heart attack and seeing inmates overdose, the offender testified that "my eyes were opened and I was motivated to stay clean. I want to live a better life after seeing this." In other words, the offender successfully resisted the temptation of easily available hard drugs and found the strength to stay clean.

[20] The offender stated because of his back problems, the old, thin mattress he was issued led to him being very uncomfortable while in pre-trial detention. He also had trouble sleeping due his separation from his family. He found it exhausting sharing a room with another inmate.

[21] He also said that while in custody he received chaplain services only twice. However, there was no evidence he ever asked for more religious services or, if so, that his requests were denied.

[22] The offender acknowledged that for three weeks, he had earned the privilege of being a server to provide meals to other inmates, but he lost that privilege after he was assaulted.

[23] The offender testified that he was able to receive visits while incarcerated and that he had access to a telephone.

[24] The Inmate Records (Exhibits 1 and 5) show the following relevant information:

• The offender had full access to privileges afforded to all inmates except when subject to a lockdown;
• The offender was never subject to an overcrowded cell;
• The offender was twice subject to discipline, both resulting in reprimands which is the lowest form of discipline (the offender explained that one of these was due to him being in a fight where he was the victim);
• The offender was never segregated while incarcerated; and
• The offender was subject to 91 days of lockdowns.

[25] With respect to the lockdowns, 67 were full lockdowns, while the remaining 24 were partial. A full lockdown means the inmate is confined in his cell at all times whereas a partial lockdown means that the inmate is confined to his cell for part of the time he is otherwise entitled to be out of his cell. There was little, if any, evidence on the impact of lockdowns on this offender. His evidence was that he essentially always felt he was in lockdown due to the inherent time restrictions associated with being in the SDU. He summarized his circumstances of pre-trial detention as "really hard this time."

4.0: Analysis and Sentence

4.1: Relevant Legal Principles Regarding Enhanced Pretrial Custody

[26] In appropriate circumstances, particularly harsh conditions of detention can provide mitigation apart from, and beyond, the 1:1.5 credit set out in section 719(3.1) of the Criminal Code. In considering whether any enhanced credit should be given, the court will consider both the conditions of pre-trial detention and the impact of those conditions on the offender: R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255 (C.A.) at paragraph 6; R. v. Turco, [2019] O.J. No. 4706 (O.C.J.) at paragraph 81.

[27] There is no mathematical formula to calculate the appropriate enhanced pre-sentence credit where particularly harsh conditions exist which have had a negative impact on the offender; the assessment is case specific and at the discretion of the court: R. v. Tello, 2018 ONSC 2259, [2018] O.J. No. 2201 (S.C.J.) at paragraph 80.

4.2: Application of Enhanced Pre-Trial Custody Principles

[28] For reasons I will explain, I am not satisfied on the balance of the evidence that most of this offender's circumstances of pre-trial detention were particularly harsh. If they were, the impact of most of those conditions were not detrimental to him so as to justify super-enhanced credit.

[29] First, his admission to the SDU largely offset many conditions experienced by inmates in the general population. He had more privacy, he was not subject to overcrowding, nor was he subject (for the most part) to intimidation by other inmates. By his own evidence, the offender noted that the SDU is generally a safer place, which is in accordance with the evidence of Ms. Gallaghar.

[30] Second, he was not denied any privileges unless there was a lockdown. However, there was no evidence of any negative impact on this offender caused by the lockdowns.

[31] Third, the evidence that Maplehurst is prone to aggressive inmates and to an influx of heavy, illegal drugs is very troubling. I agree with counsel for the offender that life inside Maplehurst is fraught with many disturbing realities. However, this offender appears to have been able to avoid most of these challenges by being in the SDU, whether or not he wanted to be there.

[32] This offender was not negatively impacted by the rampant drug use in prison. To the contrary, he said his personal experience with the effects of withdrawal and his witnessing of overdoses gave him the motivation he needed to stay clean and resist the cornucopia of illicit drugs so readily available to him.

[33] In my view, the offender was substantially inconvenienced by some of the restrictions while in the SDU but on this evidentiary record I am not satisfied that most the conditions of his pre-trial detention were particularly harsh. He enjoyed full privileges. He had full access to medical services, although sometimes there was a delay in receiving the services. He had access to inmate programming, of which he participated in at least one programme. The rehabilitative programme he was interested in discussing with the social worker could not be accommodated because he had not yet been sentenced. There is no evidence of any detrimental impact on this offender caused by the lockdowns.

[34] I have no doubt that any time spent in jail is, as the offender said, "hard time" but the evidence in this case does not equate hard time with being the same as particularly harsh conditions. The current state of the law will tolerate harsh conditions of pre-trial detention, just not those which are "particularly" harsh.

[35] Having found that the offender has by and large failed to show that his conditions of pre-trial detention were particularly harsh or that such conditions negatively impacted him, he has nevertheless convinced me that he did suffer a particularly harsh condition by being assaulted twice by other inmates. Both occasions led to injuries: the first requiring dental surgery, the other requiring medical treatment for being stabbed.

[36] Any act of violence perpetrated against a person held in government confinement is, by its very nature, an especially harsh condition. Any complaints to the authorities by the offender may well have led to further violence. The impact, being bodily harm and intimidation, was clearly detrimental to the well being and health of the offender. For this, he is shall be given an additional enhancement for pre-trial credit at a ratio of 2:1.

[37] The offender has invested 270 days, or 9 months, of pre-sentence custody. Of that time, 230 days will be subject to pre-trial credit at 1.5:1, or 345 days. The remaining 40 days will be subject to pre-trial credit of 2:1, or 80 days. Therefore, this offender will be granted consideration of 14 months as pre-sentence custody.

4.3: Mitigating Factors

[38] A number of mitigating factors are present. These include the following:

(a) The offender pled guilty without setting a trial date. His pleas were not early but awaited the outcome of other, unrelated matters;

(b) The offender was fully cooperative with police in both cases. With respect to the drug offence, he alerted the police to the presence of fentanyl so as to reduce the risk to the officers' health;

(c) The offender has now fully acknowledged his addictions and is committed to pursuing treatment;

(d) He appears to have support from his family; and

(e) He suffered assaults in pre-trial detention.

4.4: Aggravating Factors

[39] There are also aggravating features about these offences and this offender. They include:

(a) The offender was in possession of a deadly drug, fentanyl;

(b) The offender blatantly breached three different driving prohibitions;

(c) The offender has a long and related criminal record;

(d) His last sentencing in 2017 for driving while disqualified was for the equivalent of 19 months, being one year on top of 217 days pre-trial custody; and

(e) The offender has scoffed at the court's authority by breaching various court orders a dozen times over the past decade.

4.5: The Sentence

[40] Taking into consideration the circumstances of the offences, the circumstances of the offender including the conditions of his pre-sentence detention, the mitigating and aggravating factors, the case authorities provided, and the submissions of counsel my sentence in this matter is as follows.

[41] With respect to the three offences of driving while disqualified, the sentence will be 20 months less pre-trial custody credited at 14 months for a remainder of 6 months in jail from today on count 1, concurrent on counts 2 and 3. There will be a 10-year driving prohibition under section 320.24(5)(b) of the Criminal Code – the maximum allowed by law – concurrent on all three counts, but consecutive to any other driving prohibition presently in force.

[42] With respect to the drug offence, the sentence is 4 months consecutive to be followed by probation for 2 years. I will hear submissions as to conditions of probation.

[43] I have considered whether the custodial portion of these sentences should be served in the community. In my view, they should not. Given his record, I believe that the offender is at a real risk to reoffend or otherwise fail to comply with conditions should a conditional sentence order be made. Therefore, the custodial portion of the sentences shall be served in jail.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice