Court Information

Ontario Court of Justice

Date: May 28, 2020

Court File No.: Sault Ste. Marie 0131-998-19-1142-04

Parties

Between:

Her Majesty the Queen

— And —

Jeffrey Brent LeClair

Judicial Officer and Counsel

Before: Justice R. Kwolek

Heard on: May 11, 2020

Reasons for Judgment released on: May 28, 2020

Counsel:

• H. Mitchell, for the Crown
• J. Tremblay-Hall, for the accused Jeffrey LeClair

The Offences

[1] The offender was charged with a number of counts relating to an incident that occurred at the Algoma Treatment and Remand Centre on January 27, 2019. Four individuals were charged with what has been described as a riot in the jail resulting in thousands of dollars in damage.

[2] The offender ultimately pled guilty to a count of recklessly causing damage by fire, knowing that the said property was occupied, contrary to s. 433(a) of the Criminal Code and that he did take part in a riot, while covering his face, contrary to s. 65(2) of the Criminal Code.

Factual Summary

[3] A three-page factual synopsis was provided to the court detailing the incident and, in addition, photographs of the damage, receipts for repairing the damage to the property, as well as videos of the incident were provided to the court.

[4] Prior to the incident, several inmates, including the offender, appeared to be intoxicated as a result of consuming a home brew. Two of those other inmates assaulted another inmate.

[5] As a result of the assault, staff at the jail secured the wing, and the offender and his cell-mate were secured in their jail cell. Fire alarm sprinklers were triggered in two cells, including the cell of the offender, causing some flooding, and the sprinkler heads in those two units were later found to be damaged. There did not appear to be any fire in the units and the water to the sprinklers was turned off. Shortly thereafter a fire was started in the offender's unit and the cells were unlocked in the area for the safety of the inmates.

[6] The offender came out of his cell and appeared to be leading and directing the other inmates in causing damage to the facility. The offender threw objects at the module window and kicked the intercom on the unit rendering it inoperable. The offender lit a wick and threw it inside two cells causing fires to start in those cells. The offender together with another cellmate started a fire in the day area causing damage to some tables. The fires were eventually extinguished, and the inmates were extracted from the unit. Damages of approximately $50,000 resulted from the riot. An employee from the Algoma Treatment and Remand Centre was treated for smoke inhalation at the local hospital.

Legal Issues

[7] The legal issues are:

1. Admissibility of documentation at the sentencing hearing;

2. The availability of pre-sentence credits for "collateral consequences" to reduce the overall sentence to be imposed;

3. The availability and quantum of Duncan credits available to the accused for lockdowns while the accused was on remand awaiting sentencing to reduce the remaining time period to be served by the offender in custody;

4. Whether Covid-19 should be a factor considered by the court in reducing the sentence imposed on the offender and if so, the quantum of such reduction.

Crown Position

[8] The Crown position for sentencing was a global sentence of 18 months jail, followed by probation for two years.

1. The Crown objected to the filing of an affidavit of Dr. Orkin, that counsel for the offender wished to tender as an exhibit.

2. The Crown claimed that it had factored all of the circumstances of the offender and the offence in arriving at the global sentence. It opposed any further credit being given for "collateral consequences" that affected the accused in the period before October 23, 2019, which was the date that the offender's prior sentence ended as a result of the cancellation of his parole.

3. 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 since October 23, 2019, including any lockdowns after October 23, 2019.

4. The Crown also objected to any additional credits for the accused's incarceration during Covid-19.

Defence Position

[9] Counsel for the offender agreed that an appropriate period of incarceration would be a period of 18 months incarceration to be followed by probation.

1. Counsel for the defence wished to file the affidavit of Dr. Orkin as being probative and relevant evidence on the issue of sentencing as it related to credits sought as a result of Covid-19.

2. In addition, counsel for the offender sought further credit due to the consequences of the harsh conditions of imprisonment that resulted from the offender spending the balance of his period of parole in custody including the time that he spent in segregation prior to October 23, 2019.

3. Counsel for the offender suggested that the offender should be granted additional credits over and above the standard 1.5-1 credit for pre-trial custody, including Duncan credits and Covid-19 credits.

[10] The defence position, when this matter was argued on May 11, 2020 was that one day, time served, plus the maximum three-year period of probation would be a just sentence. As of May 28, 2020, the offender spent a total of 218 days in custody which would result in a total credit for presentence custody including the usual enhanced credit of 1.5, of a further period of 109 days, for a total credit of 327 days, a period of just under 11 months.

[11] Counsel for the offender suggested that due to the harsh conditions in the jail while the offender was awaiting sentencing, instead of being credited at the statutory rate of 1.5 days for each day spent in custody, that he be granted an additional credit for lockdown days of .5 days.

[12] For the time period from January 27, 2019, being the date of the offence, up to and including October 23, 2019, a period of 270 days, defence sought a further credit of 135 days for collateral consequences that flowed from the offender spending the majority of the balance of his parole in custody under segregation and subject to many lockdowns due to a shortage of staff.

[13] In addition, counsel sought further Duncan credits for the 46 days that the offender spent under full or partial lockdown conditions after October 23, 2019 at .5 or a total of 23 days.

[14] Counsel also sought a .5 credit for Covid-19 conditions from March 13, 2020 until the date of sentencing, now May 28, which would work out to a further credit of 77 days divided by two or 38 days.

[15] Total credits claimed up to and including May 28, 2020 would therefore be: 327, plus 135, plus 23, plus 38 days for a total credit as of today's date, of 523 days, which is the equivalent of just over 17 months of custody.

Evidence at Sentencing Hearing

[16] The Crown, in their exhibit book, provided photos of the damage to the Algoma Treatment and Remand Centre as well as providing details of invoices for the damages to the premises which totaled over $50,000.

[17] Various Ministry of Community Safety and Correctional Services spreadsheets setting out lock downs at the jail were filed as exhibits before the court. In addition, individual time out of jail check lists for the offender were provided to the court for the period of time that the offender was in segregation. The offender has not been in segregation since August 28, 2019 when he was moved back into the general population. When in segregation, the offender was locked in his cell all day with time out of his cell for limited periods of time for showers, time out in the yard or for programming.

[18] Crown counsel prepared a housing location history which described the locations within the Algoma Treatment and Remand Centre that the offender was housed and the reasons for that lockdown.

[19] By my calculations, the total number of lockdowns that affected the offender after October 23, 2019, most of which occurred as a result of staff shortages, included 35 for the entire institution as well as 11 for remand west for a total of 46 days of lockdown. Such lockdowns would have been less than 5.5 hours on 21 days and 5.5 hours or more for 25 days.

[20] In addition, the current Deputy Superintendent of the jail Joe Lepore took the stand and answered questions relating to the calculation of lockdowns and time out of cell checklists during the time period that the offender was in segregation prior to the end of August 2019, as well as fielding general questions about the effect of the pandemic on the inmates and staff.

[21] The Crown also filed in their exhibit book, "Response to Covid-19, Information Note", Authors: Erynne Riedstra, Michael Walker, Strategic Advisors, Institutional Services Division, Assistant Deputy Minister's Office, April 28, 2020.

[22] Certain facts are quoted within the above document including that as of April 28, 2020, 5,685 inmates were registered in custody in 25 provincial institutions, which was a 32 percent reduction since March 16, 2020. The document describes efforts made to reduce the number of inmates in the jail.

[23] As of April 27, 2020, there were 92 positive cases of Covid-19 in provincial jails, with 82 in the Ontario Correctional Institute (OCI) in Brampton Ontario; a further six in the Toronto South Detention Centre; the other four found in four separate institutions including, one in Monteith in the Timmins area. A total of 24 staff also tested positive, with 22 of the positive tests relating to the Ontario Correctional Institute. Although the large number of cases in OCI demonstrate the ability of the Covid-19 virus to spread rapidly in institutions, there was a lack of spread in the other institutions.

[24] As a result of the outbreak at OCI on April 21, 2020, the OCI facility was closed with the inmates being transferred to the Toronto South Detention Centre and placed in medical isolation.

[25] The April 28 information note also describes the precautions the Ministry is taking "to stop transmission of the Covid-19 virus" which includes screening of inmates in institutions, screening of staff, visitor screening and termination of personal visits, restricting non-essential transfer of inmates, additional cleaning of the facilities, as well as other measures enumerated in the document.

[26] The defence filed, without objections by the Crown, a letter dated April 6, 2020, entitled: "Release Prisoners to Protect Public Health, Open Letter from Medical Professionals to Canadian Federal, Provincial and Territorial Governments". The letter, accompanied by the names of 112 medical professionals, included physicians, nurses and medical and nursing students, was distributed to protect those incarcerated "in the interest of public health and human rights". The letter expressed concerns, especially for inmates who suffered from chronic diseases and the older population of inmates, particularly in the federal prison population. The letter described the inability of most inmates to practice social distancing. It also expressed concern about transmission of Covid-19 in such institutions, stating: "If people in prison become infected, it will be essentially impossible to stop the spread of Covid-19 within a correctional facility". The letter recommended stopping admitting people to jails "unless absolutely necessary, releasing as many people as possible, and to consider releasing inmates early for temporary release, inmates with chronic health conditions or age 50 or over".

[27] Defence counsel also sought to file, in these proceedings, an affidavit of Dr. Aaron Orkin, sworn April 7, 2020, which was filed in a detention review in other court proceedings. The affidavit addressed risks of Covid-19, for those experiencing incarceration. The filing of this document as an exhibit was opposed by counsel for the Crown.

[28] The substantive portions of the affidavit total seven pages in length, as well as 25 pages of his curriculum vitae, plus a number of exhibits. Dr. Orkin is a physician specialist in Public Health and Preventive Medicine. Attached to the affidavit are a number of documents described as Briefing Note: Institutional Services Response to Covid-19 dated March 25, 2020, and a second similar document dated March 30, 2020.

[29] Also attached is a document dated April 3, 2020, entitled "technical briefing" from the government of Ontario as well as other factual documentation.

[30] The Crown submitted that the Orkin document contained a great deal of opinion evidence, and not simply facts and that the author was not properly qualified as an expert witness. The only specific opinion referenced by the Crown that was objected to was the comment in paragraph 25 that:

"It is extremely likely that Covid-19 will arrive in nearly every correctional facility in Canada and therefore extremely likely that almost all inmates in these settings will be exposed in one way or another. The only available method to substantially reduce the resulting infections and deaths is therefore to reduce the population in those settings."

[31] I do not know of, nor was there any evidence provided of any deaths from Covid-19 in our Ontario provincial jails that have occurred to date, and it seems clear that there are measures that can be taken, and have been taken, to reduce the infections and spread of the virus within our institutions.

[32] Our knowledge about Covid-19 and how to reduce the spread of Covid-19 has grown since the beginning of April 2020, but it appears that there is much that the experts still do not know about the virus and consequently, there are many things the court cannot take judicial notice of when making reference to the virus.

[33] The procedure and evidence at a sentencing proceeding is set out in s. 720 and following of the Criminal Code of Canada. The specific provisions relied upon by counsel for the offender would appear to encompass s. 723 and s. 724 of the Criminal Code. Those sections provide that hearsay evidence is admissible at sentencing proceedings, but the court may require a person to testify in the interests of justice. Counsel for the offender indicated that Dr. Orkin was prepared to testify by telephone if the court wished him to testify in person and allow the Crown to cross-examine him if the court or Crown felt that it was necessary.

[34] I did not consider Dr. Orkin's attendance necessary in the interests of justice.

[35] After reviewing the document, the court has decided that it will exclude paragraph 25 and will be careful in considering any other opinion evidence but will otherwise admit the document as an exhibit for the sentencing hearing. The documentation has some probative value, although by Covid-19 standards, it would now be considered to be quite dated.

[36] Dr. Orkin relies on the inherent difficulties in social distancing in enclosed group settings, and the community interest in avoiding such settings where possible in the community's best interests, in suggesting an aggressive approach to reducing the numbers of inmates held in jails. The document filed by the Crown sets out the efforts the Ministry has made to reduce the number of inmates in jails, but it does not explicitly provide the rationale for doing so.

[37] We have been told repeatedly by Public Health officials to stay at home when possible, to maintain physical distancing from others of about six feet, repeatedly wash our hands, and recently to wear masks or some sort of facial coverings when in closer proximity than six feet of others, to reduce the transmission of the virus.

The Offender

[38] The offender is 27 years of age. He is of indigenous heritage traced through his paternal grandfather who is of Algonquin descent through Golden Lake in the Renfrew Valley and through his mother. He has waived his right to the preparation of a Gladue Report given Covid-19 and the timelines in preparing such a report. Counsel for the offender detailed Gladue factors in the offender's background with much of the Gladue factors provided by the offender's aunt.

[39] Jeffrey was raised in a home filled with drugs, alcohol, and violence perpetrated by his father. Jeffery's mother was also addicted to drugs. Jeffrey's father did turn his life around and became a productive member of the community after he completed a penitentiary sentence. By that time, Jeffrey was already well entrenched in the criminal and drug lifestyle. Jeffery's father died shortly after Jeffery was sentenced to a penitentiary term of imprisonment in 2017, and Jeffery was allowed to attend the funeral on an accompanied temporary absence program. The court was advised that Jeffery never fully dealt with grief associated with the loss of his father as well as issues with respect to his upbringing.

[40] While in custody, Jeffery appears to have reconnected with his indigenous roots. He is smudging and was seeing an elder. He has begun drumming. He has indicated remorse for his actions and wishes to get on with his life.

[41] Jeffery was paroled in December 2018 and was to reside with his aunt Lynn who described to his counsel many of the Gladue details provided to the court. His aunt reported him to the authorities when Jeffery did not comply with his condition to refrain from the consumption of alcohol or drugs. There was never a hearing held to dispute the revocation of his parole and Jeffery was incarcerated until October 23, 2019, pursuant to parole breaches.

[42] The offender has a lengthy record of offences commencing as a youth in 2007.

[43] As a young person he was found guilty of assault with a weapon; break and enter; two assaults, robbery and various other offences. He was sentenced to periods of custody as a youth on three occasions.

[44] As an adult he was incarcerated on a number of occasions and has a lengthy record. Jeffery was sentenced for robbery in 2015 and in 2017, together with a conviction for unauthorized possession of a prohibited or a restricted weapon.

[45] Jeffery was convicted on May 31, 2017 that he did cause damage to a prisoner bed at the Algoma Treatment and Remand Centre on April 27, 2017, by setting fire to it and was sentenced to a period of 30 days incarceration for that offence.

[46] On July 26, 2017, the offender also pled guilty to a charge of causing damage by fire to a bed at the Algoma Treatment and Remand Centre on the 7th of June 2017. He received an additional sentence of six months jail consecutive for that offence. On the same date in July 2017, he was sentenced to possession of Schedule I and II offences; dangerous operation of a motor vehicle; failure to stop at the scene of an accident, and by my review of his record was sentenced to a further period of incarceration of two years and ten months consecutive to any sentence he may have been serving.

[47] Since the middle of 2014 until the present, Jeffery has spent the majority of his time incarcerated in various penal institutions.

[48] Jeffery has a four-year old child and wishes to be a part of that child's life. I am told that this child is a strong motivation for him to change.

[49] Since the incident of January 27, 2019, the offender has been cited for three further misconducts during his incarceration, including an incident on May 19, 2019, and misconducts on December 21, 2019 and March 9, 2020, with the last two misconducts being for assaults of other inmates.

Mitigating Factors

[50] In a post Jordan era, the entering of guilty pleas is a significant mitigating factor for the offender.

[51] The offender's Indigenous background and the existence of Gladue factors relating to the offender are also factors the court must consider in mitigation. The court must consider non-custodial dispositions, wherever possible, pursuant to s. 718.2(e) of the Criminal Code.

Aggravating Factors

[52] The accused has two prior convictions for setting fires at the Algoma Treatment and Remand Centre for which he received sentences of 30 days and subsequently six months consecutive. The commission of these similar offences are an aggravating factor.

[53] The offender also has a lengthy non-related criminal record.

[54] The offender appears to have been one of the major instigators of the riot and took a leadership role in encouraging others to take part in damaging the property, blocking cameras as well as aggressive behavior directed towards correctional staff. His leadership role in the riot is an aggravating factor.

[55] The setting of fires by the offender put the lives and health of his fellow inmates, as well as the staff at the correctional facility, at risk. Admittedly, there were little reported health problems as a result of the incident, with one staff member attending at the hospital and being treated for smoke inhalation. There was no infliction of harm on staff or other inmates by this offender. The offender himself suffered some injury to his left arm.

[56] Significant damage and disruption to the inmates in the institution resulted from the actions of the offender and other accused involved in the riot.

The Law – Appropriate Sentence

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

Section 718 - Fundamental Purpose of Sentencing

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.

Section 718.1 - Proportionality

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

Section 718.2 - Sentencing Principles

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;

(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.

The Appropriate Sentence

[58] The Crown provided a number of cases regarding the appropriate sentence for prison riots and arson cases. In a case similar to the facts in this case, R. v. Anderson, 2005 BCSC 1681, where a fire was started in the correctional facility and a riot was triggered with items thrown around, the inmates who were not the instigators of the riots received sentences ranging from 12 to 33 months. There had been a degree of planning before the riot started. Justice D.M. Smith, suggested that the range of sentence for those who assume leadership or major roles in riots in correctional institutions, generally received sentences of between three to five years.

[59] In R. v. Pace, [1996] N.B.J. No. 498, (N.B. Q. B.), Justice Riordon, sentenced Pace, who was the main instigator of the riot to a total sentence of 25 months. The sentence for taking part in the riot resulted in a sentence of 18 months, with additional consecutive sentences being assessed for additional assaults and resisting peace officers of seven months.

[60] Justice Beames in R. v. Yonkman, 2005 BCSC 1842, concluded that the most important considerations involving a prison riot, would be the sentencing goal of general deterrence. Yonkman, who was not an initiator or ringleader, was assessed an 18-month period of incarceration.

[61] In R. v. Mickey, 256 N.B.R. (2d) 198, (N.B.Q.B.), Justice Riordan imposed a total sentence of three and one-half years' incarceration for a disturbance by rioters at a federal institution that lasted three days.

[62] In R. v. Peepre, 2013 BCCA 115, the British Columbia Court of Appeal upheld a 60 day jail sentence for a first time offender who took part in the Vancouver riot after Vancouver lost the Stanley Cup in 2011. The court pointed out some aggravating factors would include whether the conduct incited others; engaging in additional criminal activity; arson; wearing a mask; committing multiple criminal acts in multiple locations. The case listed 25 cases of young offenders with little or no criminal records and compared the sentences assessed.

[63] In R. v. Dickinson, 2012 BCPC 40, Judge Maclean of the B.C. Provincial Court indicated that the highest range of sentences are those in which offenders inflicted personal injury on others.

[64] Based on the case law and in reviewing the mitigating and aggravating factors in this case, the court is satisfied that an appropriate sentencing range for these offences and for this offender would be between 18 months and three years in custody.

[65] The 18-month period of incarceration is at the low end of the range for sentencing given the facts of this case and the circumstances of this offender.

[66] The offences are serious offences, and denunciation and deterrence are the primary focus for offences of this type within our correctional facilities.

[67] For an offender who has a lengthy criminal record; who was the main instigator of the riot; who was lighting fires; and who has two previous convictions for lighting fires in the correctional institution, the circumstances of this case could easily justify a period of incarceration in a penitentiary for a period in excess of three years.

[68] This court, on a review of the case law, in the absence of the joint position of counsel, and taking into consideration the circumstances of the offender and the facts of this case, would have felt a starting point for an appropriate period of incarceration would have been between two and two and one-half years' incarceration.

Legal Analysis of Enhanced Credit for Pre-Trial Custody

Collateral Consequences – Harsh Conditions of Pre-sentence Custody Prior to October 23, 2019

[69] Counsel for the offender is seeking significant credit for the "harsh" conditions suffered by the offender as a result of serving several months in segregation prior to October 23, 2019, as well as a significant number of lockdowns.

[70] Since the period of incarceration pre-dated any custodial pre-sentence custody for which the offender is before the court, the offender would not normally be given credit for any harsh conditions of custody imposed during that time period.

[71] Counsel for the offender argues that the harsh conditions of incarceration are a direct result of the offender's charges that are before the court. Due to these offences, the offender was placed in segregation and later was subjected to harsh conditions including lockdowns during the balance of his sentence until the period of his parole was completed. Counsel submits that these collateral consequences can affect the appropriate sentence to be imposed by the court for those very same offences.

[72] No case law was provided to the court other than a reliance on R. v. Suter, supra, which determined that the court could consider collateral consequences in reducing the sentence. Although the court accepts that it could consider and reduce the sentence based on such collateral consequences that arose directly from the offence, it exercises its discretion in not doing so in this case for the following reasons:

1. In arriving at its proposed sentence of 18 months jail, the Crown suggests that all the circumstances were considered in arriving at the appropriate sentence that was submitted to the court.

2. The Court is of the view that the sentence was already at the low end of the range for similar offences for this offender. If not for the position expressed by the Crown and defence of 18 months, the court would have imposed a sentence of two years or more. By granting excessive further credits to further reduce the sentence, as suggested by counsel for the offender, this would render the sentence unfit.

3. The reason for the offender being placed in segregation was a result of him leading other inmates in a riot that resulted in thousands of dollars in damages and by his actions, placing inmates and staff at risk to their health by setting a number of fires. He had, within the two previous years, set fires on two occasions in the institution. He was segregated due to concerns for institutional safety due to his destructive behaviour.

4. The offender was far from an ideal inmate, both before and after he was released from segregation, having three misconducts cited in his record since the January 2019 incident until the date he entered his pleas of guilt.

[73] Due to the above noted factors, the court will not exercise its discretion to further reduce the sentence of the offender for these collateral consequences during the period of the offender's parole revocation.

The Duncan Factors

[74] The Crown took the position that R. v. Duncan, 2016 ONCA 754, a decision of the Ontario Court of Appeal, cited by the defence, required some adverse effect on the offender flowing from the conditions before further credit can be given. The Crown noted that the Ontario Court of Appeal ruled in the fact situation in Duncan, supra, no further credit should be given other than the enhanced 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.

[75] 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.

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

[77] The Ontario Court of Appeal has referred to R. v. Duncan, supra, based on my review of the case law, on nine separate occasions. On seven 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; R. v. Dockery, 2020 ONCA 278; R. v. Borsi, 2019 ONCA 989; R. v. U.A., 2019 ONCA 946, the court upheld lower court decisions not to grant any enhanced credit above the 1.5 - 1 ratio.

[78] 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 ss. 719 and 719(3.1). In R. v. Brown, 2020 ONCA 196, the court upheld the lower court decision of granting an additional four months' credit. In that case the offender was subjected to 98 days of full lock down and 83 days of partial lockdown. The offender in that case also suffered from a substantial number of health issues.

[79] There are other lower court decisions where judges 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. Georgiev, 2017 ONSC 1853; R. v. McIntyre, 2017 ONSC 360; R. v. Omardeen, 2019 ONCJ 449; R. v. McIntyre, 2016 ONSC 7498.

[80] The court came to similar conclusions in R. v. Dean, 2019 ONCJ 386, where, 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. In R. v. Callaghan, 2017 ONSC 1853, where there was a lack of proof of impact on the offender, and in R. v. Sauve, 2019 ONSC 960, where there was no evidence of adverse consequences no additional credit was granted.

[81] 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 1000 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 nine months was found to be warranted.

[82] In R. v. Turner, 2019 ONCJ 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.

[83] In R. v. Inniss, 2017 ONSC 2779, [2017] O.J. No. 2420, (Ont. C.J.), the judge granted an enhanced credit of an extra year, where evidence was led of 319 lockdowns in a three year period of presentence custody. In R. v. Jama, 2018 ONSC 1252 (Ont. S.C.J.), evidence was led 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.

[84] 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 1.6-1, rather than the "norm" of 1.5-1.

[85] In R. v. Simeunovich, 2018 ONCJ 581, where the offender was beaten in pre-sentence custody, the judge awarded an enhanced credit of 1.7-1.

[86] 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- 1 ratio, granting credit for pre-sentence custody for seven months and five days, increasing the credit to an even year, which approximated the 1.7 ratio.

[87] In R. v. McIntyre, 2017 ONSC 360, the defence was unsuccessful in challenging the constitutionality of the Criminal Code sections that statutorily limited credit to 1.5-1. Justice Akhtar commented as follows regarding credits for pre-sentence custody:

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."

[88] The court in McIntyre did not grant any enhanced credit.

[89] 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.

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

…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.

Ultimately, particularly harsh conditions of incarceration may render a fit sentence unfit.

[90] Our Ontario Court of Appeal has on nine occasions considered the comments in Duncan, and approved of the decision that allows for more than a credit of 1.5-1 being granted for harsh conditions of incarceration when determining an appropriate sentence and in R. v. U.A., supra, commented as follows:

The decision as to whether to award enhanced credit for harsh pre-sentence incarceration conditions is a highly discretionary determination to which considerable deference is owed: R. v. Deiaco, 2019 ONCA 12 (Ont. C.A.), at para. 4; Duncan, at paras. 6-7; and R. v. Ledinek, 2018 ONCA 1017 (Ont. C.A.), at para. 13.

[91] In this case, the offender was subjected to a number of lockdowns, as described above. The total number of lockdowns during his 218 days of custody, since October 23, 2019, assuming no further lockdowns since May 11, 2020, were 46 full or partial lockdowns with 25 days when the lockdowns would have been greater than 5.5 hours. Many of those lockdowns resulted from staff shortages. Any lockdowns or significant reductions in a prisoner's basic rights in our penal institutions, especially based on staffing shortages or other institutional factors are of particular concern to the court.

[92] There is no evidence of any adverse effect of such lockdowns on this particular offender.

Covid-19 Factors

[93] Counsel for the offender also sought a further reduction of the sentence based on Covid-19 factors.

[94] In the Ontario Superior Court decision of R. v. Bell, 2020 ONSC 2632, Justice Forestell sentenced the accused for various weapons offences including possession of a loaded restricted firearm and trafficking in marijuana. The justice also considered the lockdown conditions and granted a credit of an additional 85 days for what he described as harsh conditions of lockdowns, triple bunking, very limited access to fresh air as well as Covid-19 factors. The offender was in custody for a total of 429 days at three institutions including Toronto East Detention Centre, Toronto South Detention Centre and Maplehurst.

[95] While also acknowledging the health of the offender and how that health might be impacted by Covid-19, the justice commented, as had been echoed in other cases including Justice Pomerance's comments in R. v. Hearns, 2020 ONSC 2365, that the existence of the pandemic does not justify a sentence that is drastically outside the accepted sentencing range.

[96] In R. v. Hearns, supra, there was no specific credit calculated for the Covid-19 pandemic, but the court accepted the joint position of the Crown and defence as to a sentence for time served. The sentence imposed in that case would have been at the low range of the scale for a serious personal physical attack, but the court commented that people are being asked to "call upon their sense of community, decency and humanity". A similar conclusion was reached by Justice Harris in R. v. Kandhai, 2020 ONSC 1611, where he imposed a sentence of time served.

[97] Justice Pringle, in R. v. King, granted a lockdown credit as well as a further Covid-19 credit. Justice Crosbie in R. v. Laurin, declined to give a credit for Covid-19 but did reduce the overall sentence by nine months as a result of harsh pre-trial custody conditions.

[98] In R. v. McConnell, 2020 ONCJ 177, and R. v. Wilson, 2020 ONCJ 176, I considered the issue of Covid-19 and reduced the sentence to time served in R. v. McConnell, supra, but declined to do so in R. v. Wilson, supra, and imposed a further period of incarceration, although I did consider Covid-19 as a factor in arriving at an appropriate sentence.

[99] The Crown cited a number of decisions supporting their position that no Covid-19 credit should be granted in this case. Although I have reviewed all the cases cited, I wish to refer to two recent Court of Appeal decisions.

[100] In R. v. Morgan, 2020 ONCA 279, the court considered the offender's appeal from the sentence imposed based on Covid-19 after the sentencing and prior to the appeal. The court agreed that the existence of Covid-19 fell into the category of collateral consequences as cited by Justice Moldaver in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, but declined to grant the appellant any further credit. The court found that the sentence imposed was at the very low end of the accepted range of sentence and to reduce the sentence any further would reduce the sentence to one that was unfit.

[101] The Court of Appeal similarly noted in R. v. Jesso, 2020 ONCA 280, in denying bail pending appeal:

The fact of the current COVID-19 pandemic is a factor that can be taken into account in considering the public interest criterion: R. v. Omitiran, 2020 ONCA 261 (Ont. C.A.), at para. 26. The weight played by that factor depends upon the particular circumstances of each case. For example, it might play a role where an applicant's known or documented health conditions, including his age, place him within a vulnerable group that is more likely to suffer complications and require hospitalization if he contracts the virus: R. v. Kazman, 2020 ONCA 251 (Ont. C.A.), at para. 17.

[102] The court recognizes and acknowledges the additional risk that those individuals incarcerated in our institutions face as a result of Covid-19. That risk is not only a risk to themselves but also to the community at large as a possible site of infection, incubation and transmission and release of the virus into the community and society at large. There is a benefit to society, therefore in reducing the population of our jails. That benefit must be balanced against the court's consideration as to the interests of the administration of justice as a whole and the need to tailor an appropriate sentence for the offender.

[103] What are the specific risks of Covid-19 for this offender?

1. There is no evidence that he suffers from any health conditions that would make him susceptible to the virus;

2. The offender is 27 years of age, in a demographic with an extremely low risk of serious consequences, should he become infected;

3. The institution has, to date, not recorded any staff or inmates testing positive for the coronavirus;

4. The institution has taken measures to reduce the risk of inmates contracting the virus by reducing or eliminating transfers between institutions and increasing cleaning and screening of those entering the facility;

5. The community of Sault Ste. Marie and the District of Algoma in which the Algoma Treatment and Remand Centre is found, out of a population of just under 100,000 people, has only detected 20 infections as of May 19, 2020, although over 5,800 tests that have been conducted.

[104] Covid-19 is a factor that the court considers in determining whether any further diminution in sentence should occur. The diminution of sentence, the Court of Appeal has directed, is a discretionary remedy of the sentencing judge that should not result in a sentence that is outside the accepted sentencing range.

Conclusion

[105] The offender, once his period of incarceration for parole expired, was subject to a significant number of lockdowns. He is now incarcerated during a period of Covid-19 when restrictions of visits by the public have been curtailed and he lives under the threat of infection through Covid-19. He has been an inmate who, subsequent to the incident, has been assessed for three further misconducts including two assaults.

[106] He does not appear to suffer from any health risks that would make him susceptible to the coronavirus. He is young and I have no evidence to indicate he is not in good health.

[107] There are no reported cases of Covid-19 in the institution for staff or for inmates, and the existence of Covid-19 in the community of Sault Ste. Marie is low.

[108] Under all the circumstances, the court finds that all the circumstances do not warrant a further mitigation of sentence, which has been set at the low end of the range of 18 months for the offences committed, to time served.

[109] The court has already factored into the sentence the Gladue factors, the pleas of guilt, and the previous incarceration of the offender that resulted in his incarceration under harsh conditions. His period of segregation was largely a result of his own misconduct in the institution including the two previous setting of fires and his subsequent misconducts.

[110] However, a short credit for lockdowns and reduced services as a result of Covid-19, under all the circumstances would justify a reduction of 30 days of custody and would not render the sentence unfit.

[111] Therefore, the offender will be sentenced on count 12 to a period of incarceration for 17 months. As of today's date, the offender has spent a total of 218 days in custody. He will be given credit for a further period of 109 days for a total credit of 327 days. He will therefore be assessed a further period of custody from today's date of 188 days.

[112] Jeffery will be placed on a two-year period of probation to follow his period of incarceration.

[113] You will report to a probation officer within five days of your release from custody and thereafter as required by the probation officer or his/her agent.

[114] You have indicated remorse for your actions, and I accept that remorse as sincere. You have indicated that you just wish to get on with your life and are motivated to change your lifestyle for the benefit of your son. I believe that you can do so if you make an effort to do so. In order to assist in your rehabilitation, you will be ordered to attend counselling for substance abuse and as otherwise directed by the probation officer. You will sign releases to enable your probation officer to monitor your progress.

[115] On count number 12, there will be a mandatory s. 109 weapons prohibition for life. You will be ordered to provide a sample of your DNA on count 12 which is a secondary designated offence.

[116] You will be sentenced to a period of 188 days jail concurrent on count 13.

[117] The balance of the counts will be marked as withdrawn at the request of the Crown.

Released: May 28, 2020

Signed: Justice R. Kwolek, Ontario Court of Justice