Court File and Parties

Ontario Court of Justice

Date: 2020-07-23

Court File No.: 19-15000602, 19-15007623-00, 20-15001097-00

Toronto Region – Old City Hall

Between:

Her Majesty the Queen

— and —

Brent Casey Hoshal

Before: Justice H. Pringle

Heard on: July 7, 8, and 10, 2020

Reasons for Judgment released orally on: July 23, 2020

Counsel:

• Maggie Brown, counsel for the Crown
• Laura Remigio, counsel for the accused

Judgment

PRINGLE J.:

Circumstances of the Offence

[1] Brent Hoshal has pled guilty to two separate counts of breaching the conditions of his Long Term Supervision Order (LTSO). Both breaches involved the consumption of substances prohibited by this order. There is a strong correlation between Mr. Hoshal consuming alcohol or drugs, and the serious domestic violence entries on his long criminal record. His risk of violent future re-offence is directly linked to whether he can abstain from the consumption of alcohol and drugs.

[2] Mr. Hoshal's LTSO began in late 2018. By mid-January, 2019, he had consumed alcohol. A friend offered him a shot and, after a back injury at work, Mr. Hoshal succumbed to that temptation and drank it. He hoped to avoid a urine screen and that his offending would go undetected. It did not. He screened positive for alcohol on January 21, 2019. He was charged with breaching his LTSO and released on bail.

[3] In October 2019, Mr. Hoshal smoked a joint laced with crystal methamphetamine. He felt the effects of the crystal meth immediately. Mr. Hoshal has a prescription for marijuana, but instead had made the risky decision to take a joint from a friend in a park. He did not intend to smoke meth, but felt the effects of it immediately and knew what it was. He did not report this to his PO, and hoped to escape a positive urine screen. He did not. He was charged again and released on bail.

[4] In February 2020, Mr. Hoshal twice came into incidental contact with crystal methamphetamine. While doing community service, he picked up a meth pipe which broke in his hand and cut him. The next day, while at work doing food delivery, he walked up a staircase filled with people smoking crystal meth. The smoke was heavy, and Mr. Hoshal inhaled heavily as he climbed the stairs.

[5] The Crown, while accepting that both of these incidents occurred, argued that Mr. Hoshal perceived a risk of testing positive for crystal meth from the incidental contacts. Given this risk, she submitted, he decided to go ahead and use crystal meth anyway. Mr. Hoshal's urine was tested on February 13, and it was positive for crystal methamphetamine. He was charged with a third breach and has been detained at Toronto South Detention Centre (TSDC) since.

[6] This last alleged breach was the subject of a Gardiner hearing, as opposed to a guilty plea. After considering all the evidence, I concluded that the Crown had not proven this final incident to be an intentional breach of Mr. Hoshal's LTSO beyond reasonable doubt. Accordingly, I have not employed it as an aggravating factor. In the interests of conserving court time today, I will provide my reasons to counsel separately, and will rely on Ms. Remigio to provide those reasons to her client.

[7] To punish Mr. Hoshal for twice breaching his LTSO, the Crown seeks between 18 months to 2 years in prison, less presentence custody. This is not an unreasonable position. The defence seeks time served, inviting me to calculate it in a variety of ways using enhanced credit for presentence custody. This, too, lies within an appropriate range.

Circumstances of the Offender

[8] Mr. Hoshal's childhood was mired in trauma, abandonment, and abuse. His father played no meaningful role in Mr. Hoshal's upbringing or his life. His mother, unfortunately, did. Mr. Hoshal was physically and emotionally abused by his mother every single day. She was heavily addicted to drugs and alcohol, possibly while pregnant and definitely while raising him as a young child. She hung around a negative criminal element and consistently exposed her young son to that environment. Mr. Hoshal began drinking alcohol at age six. By thirteen, he was using drugs.

[9] As a youth, Mr. Hoshal was in and out of his mother's home, foster care, open custody, and secure custody. His transition to foster care was predicated by his mother taking him to dinner at her "new friends'" house. It turned out the new friends were foster parents with whom Mr. Hoshal would now live. They did their best, but could not manage him. There were many foster homes. Mr. Hoshal's behavioural problems included fights, suspensions, cruelty to animals, criminal offences, fire-setting, and drug dealing.

[10] By sixteen, Mr. Hoshal was residing on his own, had quit school, and was supporting himself through crime. His childhood had taught him to trust and rely only on himself. At the same time, he had developed separation anxiety. He was mistrustful in relationships, and repeatedly physically lashed out, when high or drunk, stemming from his fear of being left by someone he loved.

[11] Mr. Hoshal is now forty years old. He has a varied and serious criminal record. In 2015, he pled to domestic violence offences against his former partner. He was high on crystal meth and cocaine when he violently assaulted her. His criminal record includes approximately 25 convictions for domestic violence, all rooted in substance misuse and abuse. From 2015 to 2018, Mr. Hoshal was the subject of a dangerous offender application. At its conclusion, Rutherford J. sentenced him to further custody and imposed a 10-year LTSO.

[12] Mr. Hoshal is a non-status Blackfoot on his father's side. Upon discovering this indigenous heritage, he attempted to learn more about it on his own. He twice moved onto a reserve, only to feel isolated and singled out, sometimes violently, because he appeared "white". The information he has managed to obtain about his indigenous heritage has largely come from programs in jail. Otherwise, he has been disconnected from his indigenous culture.

[13] His risk of violent re-offending, as stated above, is strongly linked to consumption of drugs and alcohol. Mr. Hoshal has not, historically, understood the significance these substances play in his offending behaviour. I do not believe that, to date, he fully appreciates this fact. This triggers risk to re-offend. As Dr. Klassen articulated at para. 44 of his assessment of Mr. Hoshal:

His emotional need, his separation anxieties and sense of panic are heightened when he thinks a relationship is ending. With inhibitors such as alcohol or other stimulants Mr. Hoshal will likely begin to offend.

[14] Mr. Hoshal's history evidenced a repetitious pattern that, in my view, began to repeat itself when he started his LTSO. He does well, while in custody, in treatment. He does well, initially, upon release. He seems motivated. But then he attempts to change the parameters around his treatment or his supervision. He needs these changes to better suit his personal needs, his work schedule, or the issues he would prefer to work on.

[15] In doing so, he ascertains where the boundaries around him are. He pushes past those boundaries, a bit, until he comes into conflict with authority. His natural mistrust of authority deepens with respect to the person in charge of his supervision or treatment. The supervision or treatment breaks down. He cannot rely on others anyway, and he can get by on his own. His lifetime of being abandoned and abused has taught him this cycle, and it perpetuates over and over again.

[16] Effectively, this pattern has stunted any development Mr. Hoshal could have achieved during past treatment efforts. But as Justice Rutherford observed at para. 102 in her 2018 sentencing decision:

Dr. Klassen points out that Mr. Hoshal has never been offered high intensity treatment. He has never been on a strict regime of treatment where he was forced to engage and delve into areas that he objects to. Dr. Klassen refers to Mr. Hoshal as an untreated man.

[emphasis added]

[17] The LTSO attempted to correct that pattern. For example, Mr. Hoshal was referred to culturally appropriate treatment with Elder Little Brown Bear. It started well. But then there were late arrivals, failure to return after lunch, absences, and resistance to treatment in any direction other than where Mr. Hoshal wanted to go with it. He got suspended, and then re-instated, and then suspended.

[18] At the same time, he was pushing the boundaries of his LTSO conditions. This led him, repeatedly, to charges. Those LTSO boundaries, as he hopefully understands now, are not flexible. They are the reason why he currently lives at the Toronto South Detention Centre.

[19] I mean no disrespect to Mr. Hoshal in making these observations. For what its worth, I agree with him that his past trauma should be an important aspect of his current treatment. Past trauma and substance abuse go hand in hand. I do understand when he resists and rejects authority, he does so because of harsh lessons learned as a child. But I also agree with prior assessments that have concluded Mr. Hoshal's resistance to treatment, except on his own terms, blocks insight and reduces his prospects at rehabilitation.

[20] Breaching an LTSO is not like breaching probation or bail. It is met with significant jail terms. I hope Mr. Hoshal understands that now. He must learn to break his historical patterns to avoid learning this lesson over and over again. To break these patterns, Mr. Hoshal must understand that he should accept help, even if he himself does not think he needs it. Until he can let that barrier down, his risk of re-offence remains elevated.

Ipeelee and Governing Principles

[21] Turning to the principles that must guide fashioning a fit and just sentence for Mr. Hoshal, I begin with the Supreme Court decision of R. v. Ipeelee, 2012 SCC 13. It was seminal in multiple aspects. It reminded judges, when sentencing indigenous persons for an LTSO breach, they cannot minimize or ignore that person's indigenous background. This context is key to fashioning sentence properly, given that "systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness": para. 73.

[22] The Court underscored that the historical and current overincarceration of indigenous persons keeps the principle of restraint meaningful. It remains mandatory to take judicial notice of systemic factors which may lead indigenous persons into the criminal justice system. At paras. 59 and 60, the Supreme Court held:

When sentencing an Aboriginal offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (Gladue, at para. 66). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report (Gladue, at paras. 83-84).

To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.

[emphasis added]

[23] Ipeelee also charted a clear s. 718 path for judges crafting LTSO breach sentences. The Court of Appeal summarized this path in R. v. Matte, 2012 ONCA 504 at paras. 35-38:

First, long-term supervision, as a form of conditional release, has two specific objectives:

i. protecting the public from the risk of re-offence; and

ii. rehabilitating the LTO and reintegrating him or her into the community.

Ipeelee, at para. 48.

Second, it is wrong to say that the main consideration in sentencing an LTO is the protection of the public and that significant sentences must be imposed even for slight breaches of LTSOs: Ipeelee, at paras. 48-49.

Third, the severity of a breach of an LTSO depends on all the circumstances, including, but not only:

i. the circumstances of the breach;

ii. the nature of the condition breached; and

iii. the relationship between the condition breached and the management of offender's risk of re-offence.

Ipeelee, at paras. 52 and 55.

Fourth, rehabilitation will not always be the foremost consideration when determining a fit sentence for breach of an LTSO. The duty of the sentencing judge is to apply all the principles mandated by ss. 718.1 and 718.2 of the Criminal Code in order to devise a sentence that furthers the overall objectives of sentencing. The relative weight to assign to each sentencing principle or objective varies with the circumstances of the particular breach. But in the end, the sentence imposed must be faithful to the fundamental principle of proportionality: it must be proportionate not only to the gravity of the offence, but also to the degree of the offender's responsibility: Ipeelee, at para. 51.

[24] Finally, the Court in Ipeelee held that pre-Ipeelee decisions have limited value in assessing sentence, as per para. 48:

Reading the Criminal Code, the CCRA and the applicable jurisprudence together, we can therefore identify two specific objectives of long-term supervision as a form of conditional release: (1) protecting the public from the risk of re offence, and (2) rehabilitating the offender and reintegrating him or her into the community. The latter objective may properly be described as the ultimate purpose of an LTSO, as indicated by s. 100 of the CCRA, though it is inextricably entwined with the former. Unfortunately, provincial and appellate courts have tended to emphasize the protection of the public at the expense of the rehabilitation of offenders. This, in turn, has affected their determinations of what is a fit sentence for breaching a condition of an LTSO.

Assessing Range of Sentence

[25] Balancing these considerations, I agree with and adopt the general range set out by Greene, J., in R. v. Middleton, 2019 ONCJ 280. A range of 9 months to 5 years properly expresses the above principles. This range gives voice to Parliament's intent underlying the LTSO legislative scheme.

[26] Within the Middleton range, some cases bear a strong factual relationship to Mr. Hoshal's case. These are:

• R. v. Matte, 2012 ONCA 279. Sentenced after contested trial to 350 days on top of the "functional equivalent" of 380 days presentence custody; COA upheld sentence as fit; substantial record for violence; a "significant risk of violent recidivism"; breached drug prohibition condition by taking a pill held out to be Dilaudid; third conviction for breaching LTSO; breached statutory release four times, had long record of institutional offences; had repeated history of parole violations; poor attitude towards rehabilitative programs evidenced over several years; negative attitude to authority figures.

• R. v. Ipeelee, 2012 SCC 13. Sentenced after guilty plea to 3 years less presentence custody; SCC reduced sentence to 1 year; breach was alcohol consumption/possession; first LTSO breach but LTSO had been suspended 4 times during which he was sent to penitentiary each time; 39 year old indigenous man with long criminal record including many breaches of court orders, assaults, sexual assaults; evidence that intoxication by alcohol strongly connected to assaultive and sexually assaultive behaviour; SCC noted at para. 91 "…the conduct constituting the breach was becoming intoxicated, not becoming intoxicated and engaging in violence. The Court must focus on the actual incident giving rise to the breach" and that relapse to be expected given history with alcohol since age 11; one year addressed denunciation, deterrence, and, at para. 93, was "not so harsh as to suggest to Mr. Ipeelee that success under the long-term offender regime is simply not possible."

• R. v. Ladue, the companion case to Ipeelee; breach was drug consumption; indigenous; pled guilty; LTSO had been suspended numerous times; lengthy criminal record including serious sexual assaults; third LTSO breach; 3 years less presentence custody imposed at trial level; BCCA imposed 1 year; 1 year upheld by SCC.

• R. v. Middleton, 2019 ONCJ 280. 34 months imposed after guilty plea; offender had lengthy criminal record, including two prior convictions for LTSO and an Unlawfully At Large while on LTSO; those prior convictions and the index offence were committed quite quickly after being released from custody; index offence was going AWOL from a CSC residential community centre, hiding in attic upon arrest, being extremely intoxicated by drugs when arrested and combative behaviour with police during arrest.

• R. v. MacDonald, 2014 ONSC 4671. Alcohol and cocaine breach; 4th breach of LTO which had since been completed; 3 prior convictions for LTSO breach but none involved committing a substantive violent offence; addict; 87 clean urinalysis tests out of 91 over the years; lengthy criminal record; had not completed one year of the LTSO without some kind of 'slip"; conditional sentence 2 years less one day imposed plus probation.

• R. v. Pelletier, 2016 ONCJ 628. Pled guilty, served 161 days in presentence custody; sentenced to one day in addition to presentence custody; addict; breach was drug consumption; indigenous; long criminal record including violence and court order breaches; first time sentenced for breach of LTSO.

Aggravating and Mitigating Factors

[27] Applying the guiding principles, and comparing Mr. Hoshal's facts to the above cases, I found the general range for Mr. Hoshal's two breaches to be between 9 months and 2 years. The factors which aggravate and mitigate his offences will determine where, in that range, his sentence lies.

[28] Factors which increase the seriousness of Mr. Hoshal's LTSO breaches are:

• His lengthy, persistent criminal history, although I am mindful that in the context of sentencing an LTSO offender, the presence of a serious criminal record is generally to be expected;

• His opposition to authority, his tendency to avoid being truthful with his parole officer, and his resistance to rehabilitative programming when he cannot control the terms of it himself. I have tempered this aggravating fact, however, with Mr. Hoshal's understandable and deep-rooted fear of letting his guard down;

• The circumstances of the third failed urine test. While I have not found Mr. Hoshal intentionally consumed crystal meth beyond a reasonable doubt, even his version of events evidences some risk-taking behaviour in terms of the choices he makes. For example, he chose to do community service in a way that led him to where illegal drugs were commonly used;

• The fact that Mr. Hoshal was on bail when he committed the second breach, having promised to that court, as part of that bail, to follow all conditions.

[29] Factors which operate in Mr. Hoshal's favour, in sentencing him for the LTSO breaches, are:

• His plea of guilt to both offences. Mr. Hoshal's case has been extensively pretried, over time, with a view towards resolution. This resolution, in part, was interrupted by a worldwide pandemic. Given the early intention to plead guilty, I still characterize his guilty pleas as early ones;

• His reduced moral blameworthiness in committing the offences. I find Mr. Hoshal's consumption of prohibited substances is directly and deeply connected to the circumstances of his upbringing and his family antecedents;

• The efforts he has made at rehabilitative programs, the positive results seen from some of this programming, and Mr. Hoshal's success in reintegrating himself into the community through employment;

• The eleven clean urinalysis screens Mr. Hoshal provided while on his LTSO, showing true effort and a pattern of more compliance than disobedience;

• The absence of any prior convictions for LTSO breach. As per Nakatsuru J. in R. v. Pelletier at para. 19, "No one has punished you for a breach before. You have not yet had the chance to learn how serious judges treat such breaches".

[30] There are neutral factors here, too. For example, I do not fault Mr. Hoshal for the fact that his insight into his addiction is less than perfect. The roots of his addiction date back to when Mr. Hoshal was but six. His addiction has the advantage of time, habit, and history over his present rehabilitative efforts. Recovery will take hard work and time.

[31] Similarly, relapse into substance use is expected during the recovery process. It is, as Dr. Klassen noted, predictable. So while I worry about how early into his LTSO Mr. Hoshal started breaching, the breaches related solely to substance use and must be understood within the context of the addiction.

[32] Finally, influential aggravating factors are absent here. Such factors include an offender going AWOL from supervision, being combative with police upon arrest, or committing a new substantive offence in addition to the breach. Mr. Hoshal's breach, each time, was the consumption of prohibited substances and nothing more.

[33] This is not meant to minimize the seriousness of Mr. Hoshal's repeat breaches of his LTSO. The public loses confidence in our judicial system when offenders breach court-ordered terms. As well, and as he has heard many times, there is a real and direct link between substance use and Mr. Hoshal re-offending violently. There is a concrete risk to the public if he uses alcohol or drugs. The non-consumption prohibition is there for good reason. But its seriousness has not been exacerbated by extrinsic offending.

Application of Gladue Principles

[34] Counsel provided me with a wealth of case-specific Gladue history about Mr. Hoshal. I had the benefit of reading two Gladue reports, as well as Rutherford J.'s thorough analysis of same. Mr. Hoshal has experienced intergenerational trauma in the form of being separated from his indigenous culture. His self-efforts at integrating himself into the aboriginal community was met, at times, with resistance. He has learned what he could, mostly in jail.

[35] I have taken judicial notice of the historical mis-treatment of indigenous persons. I take judicial notice of both historical and current discrimination against indigenous people, leading to inequitable results in the justice system. Over-incarceration of indigenous persons is but one way discriminatory attitudes have been expressed in our system.

[36] In looking at Mr. Hoshal's youth criminal record, I could not help but draw a link between that and how quickly the courts resorted to incarceration for his youthful crimes. Today, Mr. Hoshal's punishment must be tempered, as much as possible without displacing the fitness of sentence, by the exercise of restraint.

[37] I have concluded that, globally, the correct sentence for both of Mr. Hoshal's breach offences is 14 months less presentence custody.

LTSO Presentence Custody: R. v. Bourdon

[38] Turning to the topic of presentence custody, Mr. Hoshal has served 220 real days in presentence custody at Toronto South Detention Centre. Relying on R. v. Bourdon, 2012 ONCA 256, Ms. Brown ably argued the presentence custody should receive 1 day credit for each day served. Her argument rested on solid ground: many sentencing judges have applied Bourdon to this effect.

[39] In Bourdon, the sentencing judge intended to give 1.5 to 1 credit, but inadvertently gave less. On appeal, the Court held this error mattered not. At paras. 17 through 21, Juriansz J.A. said:

I agree with the Crown's submission that it should be kept in mind that the time a long-term offender spends in presentence custody cannot be regarded as "dead time", as the LTSO continues to run until conviction. As Justice Masse put it in R. v. Nelson, [2007] O.J. No. 5704 (OCJ) at para 30-31:

... [A]lthough the long-term supervision order is interrupted while an offender serves a sentence, it continues to run until such time as sentence is actually pronounced. It would be an anomalous result for an offender to receive both a credit towards his long-term supervision order for pre-sentence custody as well as an enhanced credit towards sentence. That could not have been the intention of Parliament.

The issue has been considered by this court in one previous case, R. v. Ipeelee, 2009 ONCA 892, [2009] O.J. No. 5402 (appeal allowed on other grounds, 2002 SCC 13, [2002] S.C.J. No. 13.) where the court said this at para. 10:

Did the sentencing judge err by refusing enhanced credit?

The sentencing judge refused to give the appellant enhanced credit for the six months he spent in pre-sentence custody. In the circumstance of this case, I see no error. As the sentencing judge noted, the time under the long-term supervision order continues to run while the offender is in pre-sentence custody for breach of a condition of the order. Moreover, the lack of credit for time served towards early release, a factor usually cited as a reason for enhanced credit, is less relevant here as the appellant is unlikely to be granted early release.

One goal of an LTSO to rehabilitate offenders and reintegrate them into the community by supervising them after they are released from imprisonment. If the offender is in custody awaiting trial on charges of breaching the LTSO, nothing can be accomplished towards reintegrating the offender into the community. Some rehabilitation is possible because long term offenders, unlike other accused persons, can be transferred to a federal penitentiary with treatment programmes available while awaiting sentence (s. 135(2) Corrections and Conditional Release Act s.c. 1992, c. 20 as amended). The lack of access to such programs is considered a rationale for enhanced credit for time in pre-trial custody. In this case, it is not clear why the appellant was not transferred to a federal penitentiary.

Here, the appellant has spent a total of 1337 days (664 days on his first breach and 673 days on the breaches in this case) in custody while his LTSO continued to run. That period amounts to more than one half of the original 7 year period the LTSO was intended to apply.

I recognize that the awarding of credit for pre-sentence custody is a matter within the discretion of the sentencing judge. Here, despite the sentencing judge's factual mistake in granting the appellant less credit for pre-sentence custody than it seems he intended to, I would not disturb the sentence actually imposed. The sentence actually imposed was fit for the offences considering the circumstances of the appellant, and the rationale for a LTSO for a period of 7 years is not undermined by the sentencing judge's calculation error. The considerations I have discussed point towards less credit for pre-trial custody while a LTSO is in effect than in other cases.

[emphasis added]

[40] At first blush, I read paras. 17 through 19 of Bourdon as binding me to impose 1 to 1 credit. However, I have concluded the case, when read as a whole, does not mandate sentencing judges to impose 1 to 1 credit. The continued operation of the LTSO is but one factor amongst all factors for sentencing judges to consider, as per the Nfld. C.A. decision of R. v. Payne, 2012 NLCA 72 at paras. 29 through 31:

This analysis [in Bourdon, supra] provides a helpful context within which a trial judge may determine the appropriate credit to be given when an individual is in custody while a supervision order continues to run.

Nonetheless, because the supervision order continues to run while the offender is in custody prior to sentencing, it is appropriate to take that factor into account when considering what credit should be granted in reducing the time to be served pursuant to the sentence. This is a matter of discretion to be exercised by the trial judge.

In this case, the trial judge credited Mr. Payne at a rate of one day, rather than the two days that would ordinarily have applied, for each day served prior to sentencing. In the circumstances, there is no basis on which to interfere with the judge's exercise of her discretion. I would add, in passing, that this decision should not be taken as indicating a method of calculating credit to be given for time in custody while a supervision order continues to run. Rather, each case must be assessed on its own merits as the trial judge determines the appropriate credit in the circumstances.

[emphasis added]

[41] Doody J. applied this approach in R. v. P.W., 2017 ONCJ 43, ultimately crediting the offender 1.3 days per day for presentence custody. In R. v. Rain, [2014] A.J. No. 323 at para. 99, 106-107, the court gave one to one credit because it lacked evidence of presentence custody hardship and because the loss of earned remission on the breach was effectively canceled out by the continuation of the LTSO sentence during pre-sentence custody.

[42] These cases reinforce my conclusion that the continued operation of the LTSO is one factor amongst factors to consider, as opposed to a controlling factor. Moreover, retaining discretion to enhance presentence custody because of the inferior access to rehabilitative programs in remand centres accords with legislative intent underlying the LTSO provisions: see R. v. Ipeelee; s. 100 CCRA.

[43] The COA in Bourdon referenced s. 135(2) [135.1] of the CCRA as enabling access to rehabilitative penitentiary programs pending an LTSO sentence. Mr. Hoshal's experienced parole officer, who testified, was entirely unfamiliar with this as an option. In her experience, when an offender is suspended and then charged criminally, they stay in "provincial custody" until the charge is dealt with. I presume were it a viable option, in the context of transferring offenders from remand centres to the penitentiary pending LTSO breach sentences, she would know.

[44] Moreover, jurisprudence post-Bourdon militates against relying on the National Parole Board's s. 135.1 transfer powers in this context. Transfer to a 'penitentiary', which includes both incarceration and residential community centres, is not triggered by any action of, or request by, the alleged LTSO offender. It is a matter wholly within the discretion of the National Parole Board: see Masse v. Canada (AG), [2017] F.C.J. No. 690 at para. 99.

[45] Section 135.1 transfers seem to bear no relationship to the detention of an alleged LTSO offender in a remand centre pending trial. As per the Federal Court decision of Masse, supra at para. 99:

In practice, a long-term offender who has been returned to custody [pursuant to s. 135.1] will return to the community after 90 days, unless the offender has been charged, and a provincial judge has meanwhile ordered the offender's detention [page441] pending trial or refused to release the offender on bail. The fact that the offender is in preventive detention following the filing of a criminal charge for the offence set out in section 753.3 of the Criminal Code, is, however, extrinsic to the Board's decision under section 135.1 of the CCRA. The Attorney General is not bound by a Board recommendation.

[emphasis added]

[46] Thus the NPB may remove an LTO from the community and return him/her to a range of federal custody options, from a residential community centre to federal incarceration, and independent of whether a breach charge is laid. Even if the NPB returns the offender to the community after 90 days, if she/he is charged with breach he/she may still be detained pending trial in a remand centre. This is my interpretation of the legislation and the jurisprudence, and it accords with the evidence of Mr. Hoshal's parole officer. Section 135.1 transfers and LTSO presentence custody appear entirely independent of one another.

[47] In sum, Bourdon does not bind me to impose 1 to 1 credit. Further, I cannot rely on the NPB's s. 135.1 transfer power to conclude that Mr. Hoshal could have accessed penitentiary programs instead of wasting away his rehabilitative potential in the TSDC. I see no reason why 1.5 to 1 credit should not be credited here and I have begun with this figure as a starting point. Mr. Hoshal's 220 days presentence custody would be the equivalent of 330 days at 1.5 days per day.

Presentence Custody: Duncan and Morgan

[48] The Court of Appeal decision of R. v. Duncan, 2016 ONCA 754, enabled courts to express the impact of harsh presentence custody conditions, in mitigation of sentence, by enhancing presentence custody credit beyond 1.5 days for each day: para. 6. I have an evidentiary record which supports mitigating Mr. Hoshal's sentence in this way. He provided both lockdown records and a thorough affidavit attesting to the significant personal impact that the harsh conditions at TSDC had upon him.

[49] As of June 23, 2020, he had been locked down for 84 days. I have no difficulty, given the pattern of lockdowns I see in the records, in inferring he has also been locked down since June 23 or approximately 3 months in total. The majority of lockdowns have resulted, the records prove, from staff shortages.

[50] Moreover, Mr. Hoshal has been incarcerated during the ongoing COVID-19 pandemic. His affidavit speaks to this as well. I have no doubt that society's fear and anxiety about the pandemic is amplified within the walls of the Toronto South Detention Centre. R. v. Morgan, 2020 ONCA 279 at para. 8 instructs me that I can take judicial notice of:

…the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission.

[51] Experiencing the pandemic in presentence custody may be considered a "collateral consequence", as per the Court in Morgan. This means that experiencing a particular consequence caused the sentence to impact an offender more significantly. The sentence may, in turn, be reduced to reflect that impact as long as it remains fit: Morgan, at para. 9.

[52] I will not go through the details of Mr. Hoshal's affidavit, about the pandemic or otherwise, in this judgment. Suffice it to say that he has well-grounded fears about his inability to social distance from guards, from inmates, and from his ever-changing cellmates; about the lack of cleanliness in the institution; about his inability to protect himself from contracting COVID-19 by cleaning himself and his environment; about the lack of access to showers and fresh air; and about the impact of poor air circulation.

[53] Before the pandemic, Mr. Hoshal had some access to rehabilitative programs in custody (which, while well-intended, cannot possibly compare to the type of intensive programming Mr. Hoshal needs). This was cut off during the pandemic. His access to the outside world was cut off. His access to culturally appropriate programming and activities was cut off. The impact of all of this has been significant, especially given his LTSO is supposed to help him to rehabilitate. Instead, as Mr. Hoshal put it himself,

I feel like no matter how much I want to help myself no one cares about me or my future. I feel like my potential is being wasted and that the system does not want to help me be rehabilitated.

[54] In order to rehabilitate oneself, hope is necessary. The conditions of Mr. Hoshal's presentence custody, including the COVID-19 consequences, have amplified anxiety and stress, isolated him from supports, and caused him to lose hope. In the circumstances of sentencing a Long Term Offender, that is a grave consequence indeed.

[55] A 14-month sentence equates to 420 days. At 1.5 to 1 credit, Mr. Hoshal has served the equivalent of 330 days presentence custody already. I have typically eschewed a strict mathematical approach to applying Duncan and/or COVID credit. Here, I find a strict mathematical approach unnecessarily complex, especially given my findings thus far.

[56] The impact of harsh presentence custody conditions at the TSDC upon Mr. Hoshal personally, and the impact of COVID-19 upon those already deplorable conditions, easily justify enhancing the presentence custody equivalent by an additional 90 days. Indeed, it likely justifies more, but that analysis is unnecessary here. I am satisfied that, after this enhancement, Mr. Hoshal's global sentence of 14 months less presentence custody remains fit and within the range.

[57] Globally, Mr. Hoshal's sentence will be 1 day on top of the equivalent of 440 days presentence custody. 440 days, or 14 months, of presentence custody will be noted on the October 2019 breach. 1 day concurrent will be imposed on the January 2019 breach.

[58] I close with two final thoughts. To counsel Ms. Brown and Ms. Remigio, I am most grateful for your professional attitude and preparation. The public and Mr. Hoshal have been well served by your advocacy. And to Mr. Hoshal, I hope someday treatment leads you to know that you do deserve good things to happen to you, and that you do deserve for your life to change for the better. I wish you the best of luck.

Released: July 23, 2020

Signed: Justice H. Pringle