Court File and Parties

Court File No.: 20-15002297 and 20-15005735 Date: December 23, 2020 Ontario Court of Justice Toronto Old City Hall

Between: Her Majesty the Queen — and — Ross Kevin Stevens

Before: Justice Beverly A. Brown

Heard: December 11, 2020

Reasons for Judgment Released: December 23, 2020

Counsel:

• Ms. Joanne Bruno, counsel for the Crown
• Ms. Pharah Bacchus, counsel for the accused Ross Kevin Stevens

Judgment

BROWN, B.A., J.:

INTRODUCTION

[1] On December 11, 2020, Mr. Ross Stevens entered guilty pleas to a number of charges. He entered a plea of guilt to a charge of being unlawfully in a dwelling, on April 18, 2020, at 46 Cecil St., Toronto. The Crown accepted this guilty plea, in relation to a charge of break and enter in relation to that location at that time. Mr. Stevens also entered a plea of guilt to the April 19, 2020 charge of break and enter, with intent to commit an indictable offence, at 565 Dovercourt Road, Toronto, and failure to comply with probation order made April 8, 2020, arising from failure to keep the peace and be of good behavior. The Crown proceeded by indictment on the hybrid offence. The other offences are straight indictable offences, being in relation to residential premises.

[2] Mr. Stevens, defence counsel and Crown counsel agreed to conduct the court proceedings by way of an audioconference call. All parties, including Mr. Stevens, participated in the proceedings by way of this audioconference call. The court was content with the arrangements in place for this procedure.

[3] The parties have put before the court a joint submission as to a global sentence of 18 months' incarceration, together with a period of 2 years' probation, with terms set out below. The parties have also put before the court as part of the joint submission, that there be an order for a DNA sample for the primary and secondary designated offences.

[4] The key issue in this case is the nature and calculation of presentence credit in this case, for the lengthy period of time for which Mr. Stevens has remained in custody, from his arrest on the subject charges, on April 19, 2020, until the imposition of sentence. The actual presentence custody period to date is 249 days, which is approx. 8 months and 5 days. There is no doubt that there should be a credit of 1.5 days credit for each day of actual presentence custody, characterized as the Summers credit. This would amount to an enhanced presentence custody credit of 374 days, or 12.5 months. The Crown takes the position that this should constitute the full amount of the enhanced presentence custody credit. The Crown position is that after that credit, Mr. Stevens should be sentenced to a 5 ½ month term of incarceration.

[5] The defence argues that the credit for presentence custody credit should be further enhanced in relation to the periods in which Mr. Stevens has been in partial or full lockdown, and in addition, with respect to the ongoing Covid 19 pandemic. Essentially the Crown position is that Mr. Stevens should be sentenced to a further period of incarceration. The defence takes the position that he should be released today, after consideration of enhanced presentence credit.

[6] The issues before this court require a consideration of lockdown conditions at the Toronto South Detention Centre, and as well, the Covid 19 pandemic and steps taken, or not taken, by that facility in keeping with its obligation to protect the safety and health of people in that location. In this case, the court considers this issue in the context of Mr. Stevens having been a detainee, enjoying the presumption of innocence. The Toronto South Detention Centre houses detainees, and inmates who have been found guilty and are serving a provincial sentence. Those issues are discussed below.

THE EVIDENCE

A. The Circumstances of the Offences

[7] On Sunday April 19, 2020, Mr. Stevens entered through an unlocked door a rooming house at 565 Dovercourt Road, in Toronto. Once inside, he went upstairs to Unit C, where he selected and took an Apple Macbook computer, valued at $1300, together with an iPhone 7, valued at $400. He did not damage any property in that room. He was able to escape. The property belonged to the resident Caitlin McConnell. Later in the day he was investigated and found to be in possession of this stolen property from the break in. The property was recovered. At the time he was on a probation order which began on April 8, 2020, this was a period of 11 days earlier. He breached the term which required him to keep the peace and be of good behaviour. He was found guilty of break enter and commit theft, and breach of probation, in relation to that incident.

[8] Prior to that, the day before on April 18, 2020, Mr. Stevens approached 46 Cecil Street in Toronto. This is a residential location. He does not live at that address. He entered through the front door, and shortly after exited from the same door. He did not remove any property nor do any damage inside the residence. He was seen checking other doors of residences on that street. Although he as originally charged with a break and enter offence, he pled guilty, admitted that he had the intent to commit an indictable offence while in that residence. The crown accepted the plea to the charge of being unlawfully in a dwelling in relation to that offence. He was found guilty.

B. The Circumstances of the Offender

[9] There was no presentence report ordered. Defence counsel made extensive submissions with respect to the circumstances of Mr. Stevens.

[10] Mr. Stevens is currently 58 years of age, and a Canadian citizen. Mr. Stevens is, as described several times by his counsel, and by himself, as "black and aboriginal". He self-identifies as Mi'kmaq/Micmac from Nova Scotia. While there is no Gladue report before this court, the court has been advised that he has an aboriginal background, on his father's side of the family. His paternal grandmother was aboriginal. Aboriginal Legal Services has been unable to prepare a Gladue report for Mr. Stevens arising from their inability to confirm various facts. However, it has assisted Mr. Stevens numerous times in the past with respect to bail matters, and he has worked with case workers from Aboriginal Legal Services. The court accepts that Mr. Stevens has an aboriginal background. He also has a relationship with an aboriginal woman who lives on a reserve in the Thunder Bay area, and he plans to return to that area to live after his release. He has many aboriginal friends. He has been smudging all of his life. Currently he is on the aboriginal range of the Toronto South Detention Centre.

[11] Mr. Stevens was born in Nova Scotia. He has had a difficult childhood. He went to live with his grandmother when he was 12 or 13 yrs. old. He was from ages 12 to 16 years at a reform school, which is a training school. He was part of a class action lawsuit against the training school for mistreatment of children, although did not follow up with that action arising from having been in and out of custody. He became a ward of the Children's Aid Society and was in and out of foster homes. He began consuming alcohol and marihuana at age 12 when he went to the training school. He went on to use powder and crack cocaine, and this addiction to cocaine has continued. His drug use is as submitted by his counsel an explanation for the many property related convictions on his record. Substance dependency remains a concern for this court.

[12] Mr. Stevens maintains a positive relationship with his mother. He has two brothers and one sister on his mother's side of the family, and on his father's side he has two brothers and one sister. He has sporadic contact with those siblings. His father has passed away.

[13] Mr. Stevens has medical conditions, which are very relevant in this sentencing. Firstly, he was diagnosed over 10 years ago, as HIV positive. He has been attending at Sunnybrook Hospital for regular treatment over the last 8 years. When he is in the Thunder Bay area, he has medical treatment from the Thunder Bay Regional Health Sciences Centre. He also gets support from an organization, PASAN, for being HIV positive. As a result of the Covid 19 pandemic, he has been unable to have visits in the jail from PASAN. His diagnosis contributes on occasion to significant difficulties for him when he is in custody.

[14] Another significant medical condition he suffers from is asthma. He uses puffers on a regular basis. While in custody, he has had difficulty in getting access to necessary medications for his asthma condition. While in custody, he has been transferred to the infirmary on two occasions. Once he was sent there while suffering from shingles, for a period of 5 days. Secondly, he was sent to the infirmary for 7 to 8 days when he was suffering from symptoms suspected to be indicative of Covid 19, and he was also tested for same.

[15] In his affidavit, Mr. Stevens has outlined the extensive difficulties he has had in presentence custody, arising from his medical condition.

[16] Prior to being arrested, he obtained his source of income from ODSP. It is clear that he had limited income of $1124. per month.

[17] Mr. Stevens has a lengthy criminal record which has been put in evidence as an exhibit. It starts in 1979 when Mr. Stevens was an adult, and continues with additional entries on a fairly regular basis until the entry in 2019, the same year as the offences before the court were committed. This record includes many property offences, many offences of violence, offences related to drugs, and failure to comply with court orders. Mr. Stevens has gone to the penitentiary on sentences. It is a very bad record. Having noted that, the court does note that in the last 5 years, the entries on this record have been more minor in nature prior to the charges before the court.

[18] Mr. Stevens has also provided to the court an affidavit, which was the subject of cross-examination by the crown, in relation to enhanced presentence custody credit, and other matters relevant to him as an offender. Matters relevant to that issue are related below.

C. Impact on the Victim and Community

[19] The Crown has put in evidence a victim impact statement in relation to the charge of break and enter a residential premise. In that regard, the victim indicated the following:

"After my apartment was broken into in April, I didn't feel safe in my own home. It's hard to describe the violation I felt when I realized a stranger had entered my home and stole important items from me. It scares me to think that I could have easily been home at the time, and what could have happened. Almost eight months later, I have since moved to a new place and still struggle with compulsively checking to make sure all my doors are locked. It's my understanding I wasn't the first victim of this offender. I don't want him to continue breaking into homes and forcing people to go through such a horrible experience. From what I've heard, this individual has a history of substance abuse. I don't think a long prison sentence is necessarily the right solution. I genuinely hope he's provided the right support and counseling he needs to help him with his issues and prevent him from doing this again in the future."

[20] There is no doubt that this victim has been adversely affected by the criminal action of Mr. Stevens, and yet, as she continues to suffer, she is sensitive to the needs of Mr. Stevens, and the need for rehabilitation. The comments of the victim reflect a very enlightened approach, for someone who continues to suffer from his acts.

LEGAL PARAMETERS

[21] The offence of break and enter a residential premises, with intent to commit an indictable offence is, pursuant to s. 348(1)(a) and (d) of the Criminal Code, an indictable offence with a maximum punishment of imprisonment for life. The offence of being unlawfully in a dwelling with intent to commit an indictable offence is, pursuant to s. 349 of the Criminal Code, an indictable offence and liable to imprisonment for a term of not more than 10 years. The third offence before the court, of failure to comply with a probation order, pursuant to s. 733.1(1)(a) of the Criminal Code, where the Crown proceeds by indictment, provides for a maximum penalty of 4 years' imprisonment.

POSITIONS OF CROWN AND DEFENCE ON SENTENCE

[22] The position of counsel in this case is that a global sentence of imprisonment should be imposed. Essentially counsel have put before the court a joint submission of 18 months' imprisonment, less credit for presentence custody. As indicated herein, the parties are far apart in terms of their position regarding credit for presentence custody. Essentially the defence takes the position that after enhanced presentence credit, as considered below, Mr. Stevens has served a sufficient period of time in jail and should be released on a suspended sentence, with the 2 year period of probation which is part of the joint submission, or alternatively one day jail, to be followed by a period of 2 years' probation. The Crown takes the position that after the Summers presentence custody credit, at 1.5 days credit for each day in custody, no further enhanced credit should be given. Accordingly the Crown position is that Mr. Stevens should be sentenced to a term of imprisonment, to be followed by a period of probation.

[23] Counsel are agreed that there should be a 2 year period of probation with terms set out below.

[24] Counsel are also in agreement that an order should be made for a DNA sample, in relation to the primary (break enter offence) and secondary (unlawfully in a dwelling) designated offences before the court, as outlined below.

[25] The court also considers the imposition of a victim surcharge, below.

MITIGATING AND AGGRAVATING FACTORS

A. Mitigating Factors

[26] Mr. Stevens has entered a guilty plea to the charges before the court. The timing of this guilty plea has been delayed by getting proper disclosure, to allow his lawyer to advise him regarding his defence. Given the challenges during the Covid 19 pandemic of providing disclosure, which has caused delays of this nature, the court considers for sentencing purposes, this to be an early guilty plea. It has saved the victims and other witnesses the need to testify, and as well saved court resources in this challenging time of the Covid 19 pandemic.

[27] In addition to entering the guilty plea, the court considers as genuine the apology which Mr. Stevens made in court, to the victim. That is another mitigating factor.

B. Aggravating Factors

[28] The fact that an offender commits an offence while on probation, is clearly an aggravating factor on sentence. However, one of the charges for which he is to be sentenced is the offence of failure to comply with probation, by failure to keep the peace and be of good behavior, arising from having committed one of the subject offences before this court. In that sense, it is not an aggravating factor, but rather an additional offence before this court for imposition of sentence.

[29] Mr. Stevens has a lengthy criminal record. That is not an aggravating factor, but rather bears upon the court's analysis of the principles of specific deterrence and rehabilitation.

SENTENCING PRINCIPLES

[30] The court considers the sentencing principles outlined in the Criminal Code, and in case law. In this case, the court specifically considers s. 718.2(b), that a sentence be similar to the sentence for similar offenders for similar offences in similar circumstances. The court considers the s. 718.2(c) principle of totality, that when consecutive sentences are imposed, combined sentences should not be unduly long or harsh. As noted herein the parties take the position that a global sentence should be imposed, with concurrent sentences of incarceration for the additional offences before the court. The court considers the principle of judicial restraint, that an individual should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances, as set out in s. 718.2(d). Further, the court considers the principle that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Mr. Stevens as an aboriginal offender, set out in s. 718.2(e) of the Code.

SENTENCE TO BE IMPOSED

[31] The court accepts the joint submission. While the sentence of 18 months incarceration may appear on the low end of the appropriate scale for this offender, (particularly given his record, notwithstanding the remorse of the guilty plea and apology, and his aboriginal background) and for these offences, bearing in mind the relevant sentencing principles, the court finds that the position put forward by the parties is not contrary to the public interest. The administration of justice would not be brought into disrepute, bearing in mind all of the relevant circumstances. The court considers and applies the Supreme Court of Canada judgment in R. v. Anthony Cook, 2016 SCC 43, [2016] 2 S.C.R. 204. The joint submission of an 18 month sentence of incarceration is to be less pre­sentence custody credit. As noted above, Mr. Stevens has been in custody since April 19, 2020, a period of 249 days, which is approximately 8 months and 5 days.

ENHANCED PRE SENTENCE CUSTODY CREDIT

[32] As set out above, to date, Mr. Stevens has served an actual presentence custody period of 249 days. That is the starting point for a calculation of enhanced presentence custody credit, which is the area of dispute between the parties. The parties have put before the court a number of cases which have considered enhanced presentence custody credit relevant to the factors in this case.

(i) Summers Credit

[33] Both parties agree that Mr. Stevens should be given credit for the 249 actual days in presentence custody, in accordance with s. 719(3.1) of the Criminal Code, and the judgment in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. On that basis, the presentence custody credit under the Criminal Code is given at the rate of 1.5 days credit for each 1 day of presentence custody, for a credit of 374 days, rounded up. Application of this credit would give rise to a sentence of 18 months, less an enhanced presentence custody credit of 374 days, which is approximately 12 ½ months. Application of that credit would result in a remaining sentence to be served of 5 ½ months incarceration. That is the position of the Crown in this case.

(ii) Duncan Credit

[34] Mr. Stevens asks that he be given further enhanced credit in accordance with R. v. Duncan, 2016 ONCA 754, based on the lockdowns he has endured at the Toronto South Detention Centre. As set out above, the total number of partial or full lockdown days for Mr. Stevens was initially set out by a record prepared by the Toronto South Detention Centre as 63 days, out of the 249 days of presentence custody. This was approximately 25% of the time he was in presentence custody. At the time of the guilty plea and submissions by the parties, Mr. Stevens gave testimony and indicated that it was his view that these records were in error and understated the actual lockdowns. Subsequently, just prior to the release of these reasons, the court was provided with another record of lockdowns for Mr. Stevens, which in fact reflected that the earlier records understated the reality. At this point, both parties agree that the actual number of partial and full lockdown days totals 97 days. Accordingly, the true proportion of lockdown days as a proportion of presentence custody days, is just under 40%. It is noted that this is a lower proportion of days than in some of the cases noted herein with high enhanced presentence custody credit. At this point, only one of those days were full lockdown days. While the reported cases dealing with this credit do not generally comment upon the timing of the lockdowns, the court would note the following in this case. Although the vast majority of partial lockdowns do not state both a start and finish time, a little over half of the partial lockdowns started in the late afternoon or evening hours, suggesting the earlier part of the day was not a lockdown.

[35] The COA for Ontario, in R. v. Duncan, 2016 ONCA 754, held at para. 6:

"… that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). 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.

[7] 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. Consequently, although we agree that the trial judge misinterpreted the relevant provision, we would not reduce the sentence to reflect any added mitigation for the conditions of presentence incarceration."

[36] There is no fixed formula for credit in the circumstances of a full or partial lockdown. It should not be taken for granted that there is a routine award given after the tendering of correctional records demonstrating lockdown days. What must be shown is the "adverse effect" of those restrictions on the offender, without which no credit is due: Duncan, at paras. 6-7; R. v. Omoragbon, 2020 ONCA 336, at para. 32.

[37] The defence has filed material before the court with respect to lockdown conditions at Toronto South Detention Centre, including 97 days of partial or full lockdown (96 days of partial, and 1 of full lockdowns) up to and including Dec. 8, 2020. Although the detention centre provided this correction as to the lockdown days on December 17, 2020, it did not update the lockdown days between Dec. 8 and 17 of 2020. With the exception of one day when there was a telephone misfunction, the remainder of the days were as a result of staff shortage. Other days on which Mr. Stevens was not allowed the usual freedoms and privileges in the detention centre appear to have been as a result of his medical situation, being moved into the infirmary and taking steps to protect him from Covid transmission arising from his vulnerable medical situation. He was also in the infirmary for suffering from shingles. On the second occasion he was in the infirmary for 7 to 8 days arising from concerns that he had contracted Covid 19, and for Covid 19 testing.

[38] Accordingly, the court considers there to be 96 days of partial and 1 day of full lockdown. Of the partial lockdowns, a number of those days were only for an hour or two. However the vast majority of partial lockdown days indicate a start time, but no finish time for the partial lockdown. In this case, there was no viva voce testimony from the detention centre to elaborate on this information.

[39] Mr. Stevens indicated in his affidavit, and cross-examination on that affidavit, the effect of the lockdowns upon him. There are 2 inmates per cell. When there is a lockdown, both full (the whole institution) or partial (his unit), the inmates from 2 cells are let out at a time for a period of 30 minutes to take a shower and use the telephone or potentially have yard time. Four inmates compete for those resources in that short period. When there is a lockdown, the inmates do not know how long it will last. He has had to go without a shower on occasion, for up to 3 days and this is uncomfortable. When he is unable to use the telephone, he has difficulties consulting with his lawyer. This makes him anxious. When he cannot use the telephone he is unable to access his support network. He does not get access to sunlight or fresh air from his cell. He is without that when he cannot get yard time. Yard access is limited at this institution.

[40] Mr. Stevens also stated that during lockdowns the lights often remain on in the cells until early in the morning, such as 3 am. It is difficult to sleep. He has headaches and eye strain as a result. The ventilation system also goes off in the cells during a lockdown, which is uncomfortable for Mr. Stevens, having asthma, and he often needs to use his inhaler often when this happens. He gets anxious when he is locked in his cell with nothing to do.

[41] The defence has submitted that for the days of lockdown credit, Mr. Stevens should be given enhanced credit on the basis of 1 additional day credit for each of those days. This would result in an additional 97 days enhanced presentence credit.

[42] In one of the earlier cases, R. v. Tristan LALL, unreported reasons of Justice John McMahon on July 4, 2019, which was cited by the defence in the case at bar, the court considered enhanced credit lockdowns. Justice McMahon's treatment of enhanced credit in this case had in a sense become the 2019 benchmark consideration for Superior court in Toronto, for lockdowns arising primarily from staffing shortages, at the Toronto South Detention Centre. Essentially, the court applied consideration of an additional .5 days credit for each day spent in full or partial lockdown, arising from the evidence in that case as to the impact on the accused in custody. This impact included reduced ability to obtain showers, fresh air, programs, consultation with counsel and family visits. In the 18 months that followed this decision, many other courts have considered this issue.

[43] The court notes that other cases have given credit for lockdown days, in the enhanced presentence custody credit calculation, ranging from just a period without a daily calculation such as the credit of less than a day per day enhanced credit by the Ontario Court of Appeal R. v. Marong, 2020 ONCA 598, and R. v. McNichols, [2020] OJ No. 4874. Credit has been given as noted above of 0.5 days credit for each day in R. v. Lall, 2019, supra, R. v. James, [2019] O.J. No. 4990, and R. v. Niyongabo, 2020 ONSC 4752. Credit was given at the rate of 1.0 days for each day in R. v. Mohamed, 2020 ONSC 4337, R. v. Kathirgamanathan, 2020 ONSC 7570, R. v. Kriticos OCJ Oct. 19, 2020, R. v. Charley, 2019 ONSC 6490; R. v. Studd, 2020 ONSC 2810.

[44] At the upper end of the daily enhanced presentence custody credit, the court notes that credit was given at a rate of 1.5 days for each day in R. v. Persad, 2020 ONSC 188, [2020] O.J. No. 95, and R. v. O.K., 2020 ONCJ 189. The court would note that the evidence with respect to the impact on the defendant appeared far greater in Persad and O.K. than in the case at bar, as far as strictly lockdown consequences. For instance, for some inmates the lockdown conditions have included for triple bunking, such as at the Toronto East Detention Centre. There have also been other egregious conditions and impacts on defendants. There was a far greater proportion of lockdown days in some cases where greater presentence credit was given for lockdowns, and where the actual conditions which much more egregious than in the case at bar (See Persad).

[45] In R. v. McNichols, [2020] OJ No. 4874, Justice Akhtar considered a situation where there was evidence as to primarily partial lockdowns at the Toronto South Detention Centre. In that case, there was a total of 210 days under consideration. The court found that for the vast majority of the partial lockdowns, it was in the range of 3 or so hours per day rather than the whole day. The court in the subject case did not have the benefit of that type of detail in the evidence regarding partial lockdowns. In that case, the court also considered the evidence with respect to the "adverse effect" of those conditions, which it found to be "sparse", although the court nonetheless gave additional credit of 60 days (for the 210 day partial lockdowns).

[46] In this particular case, as noted above, the defence requested a credit of 1.0 enhanced credit for each day of partial or full lockdown, which if credited on that mathematical basis would result in a further credit of 97 days. The court agrees that a lockdown credit of 1.0 day for each full or partial lockdown day is appropriate in this case, given the evidence before this court. The application of this credit would result in a total enhanced presentence custody credit from Summers and Duncan lockdown credits of 15 ½ months enhanced presentence custody credit.

(iii) Covid 19 Pandemic Credit

[47] It is interesting to note that Mr. Stevens has been specifically transferred to the infirmary of the Toronto South Detention Centre, for a period of 7 to 8 days, as a result of suspicion he had contracted Covid 19. The evidence is that steps were taken by the Toronto South Detention Centre, for the transfer for Covid 19, in the particular circumstances of a concern arising from his underlying medical conditions. There is no doubt that transfer, and time in the infirmary, brought into sharp focus for Mr. Stevens, stress and anxiety related to contracting Covid 19 while at this facility.

[48] Further, from his perspective, Mr. Stevens also testified that time in the infirmary was like a lockdown in terms of removal of freedom and privileges. There is no doubt that the step to move him from the general population to the infirmary was a proper step taken by the Toronto South Detention Centre, given its obligation to give proper care and protection to detainees and inmates. What is a concern to this court, however, is what has not been done on other days he has been in presentence custody, while the risk of Covid 19 exposure has been in place, during his full period of presentence custody.

[49] In relation to sentence, the defence takes the position that Mr. Stevens should be given enhanced presentence credit for Covid 19, at a rate commensurate with the remainder of the sentence to be served. In this case, that would have been, at the time of the defence submissions as to 67 days of lockdown, approximately 3.5 months additional credit. (As noted above, the court has subsequently received lockdown records indicating the number of those days is far in excess of 67 days.) There is no mathematical basis upon which the defence made that submission, such as for example a proportion or percentage of the 249 days of actual credit, giving rise to additional credit of approximately 105 days sought by the defence to arrive at an outcome of no additional incarceration. Mathematically that would be an additional approximate credit of .41 days per day. As noted though, the defence does not base this submission on a number credit, but a notional credit following the reasoning in the Hearns and Studd, cases referred to below, which discuss the imposition of a future sentence.

[50] Mr. Stevens is clearly suffering from the stress and worry and potential risk of transmission of Covid 19 while in the detention centre. His age, and underlying medical conditions of HIV, and asthma, make him particularly vulnerable to more serious consequences if he contracts Covid 19. Ironically, when he is not in lockdown, and is able to leave his cell, he is generally unable to take measures to reduce risk of transmission of Covid 19. He cannot maintain a 2 metre distance from other inmates and staff. Most importantly, as the court will also emphasize later in the reasons, the court is disturbed to hear from Mr. Stevens that he is not provided a mask or face covering when out of his cell. The two Information Notes provided in evidence from the Toronto South Detention Centre indicate that inmates are provided this PPE only when it is "necessary". The reports do not define "necessary". The evidence is uncontradicted, from Mr. Stevens, that he has requested this PPE, arising from his high level of stress and worry over contracting Covid 19, and he has been told each time that he will not be given this PPE. This is notwithstanding the clear fact that the officers at the Toronto South Detention Centre are well aware of his compromised medical status, and the clear fact that he has already been sent to the infirmary for several days, earlier in his stay, arising from the medical concern that he had symptoms consistent with Covid 19, and potentially had contracted the virus. He was also tested at that time, and found to be negative. Nonetheless, Mr. Stevens has had a heightened concern and worry about contracting Covid 19, so much so, that at the end of his counsel's submissions on the date of the guilty plea, and before he left the court line, he asked his counsel in the court's presence if she could ensure that if he was moved to the infirmary again if he gets Covid 19 before the date of sentence, could she ensure that the judge would still release the reasons for sentence in his absence. He is that concerned about his risk of getting Covid 19, and as he articulated, dying from getting this virus given his underlying compromised medical condition.

[51] The court indicated in an exchange with the parties in court, its concern that the Toronto South Detention Centre would not provide Mr. Stevens with a mask or face covering, particularly when he requested same, and particularly when the Toronto South Detention Centre is well aware of his underlying medical conditions. That is shocking and appalling. Mr. Stevens indicated that he was told by detention centre employees that it would be too expensive to give him a mask or face covering. The cost of disposable face covering per person, per day, is minimal in the circumstances. In the context of a detainee like Mr. Stevens who could have catastrophic consequences if he contracts Covid 19, the cost is negligible. At the same time, in the community, Public Health officials and the government have made the wearing of face coverings a staple in the tool kit to prevent Covid 19 transmission. People in the community are directed to wear a face covering when inside a building and not able to maintain a 2 metre distance. Clearly the situation in a jail is comparable. Further, as the court noted to the parties in court, the court has participated in zoom proceedings in the month of December, in Thunder Bay. The court has seen detainees in the jail in Thunder Bay, and elsewhere in northern Ontario, walking into the Zoom room with a face mask, they retain the mask, and use it for walking out of the room to go back to their cell area. For whatever reason, not known to this court, it seems that other jails in Ontario are providing facial coverings to detainees and potentially inmates, although not in the Toronto South Detention Centre, the largest detention centre in this province. It is even more egregious for a detainee awaiting trial, having the benefit of the presumption of innocence, such as Mr. Stevens, who has two underlying medical conditions known to correctional authorities. This is not acceptable. There are many alternative measures that could be taken as far as suitable facial covering for PPE for inmates and detainees, if disposable face coverings are too "expensive" in the jail context. One would assume that disposable face masks are cheaper and easier to issue, however people in the community also have the option of using a reusable face covering. Neither option is offered to detainees or inmates, to the court's knowledge. The court has not been advised as to what could possibly constitute a "necessary" situation, to justify the issuance of a face covering to a detainee. One would think that a detainee like Mr. Stevens, who requests this face covering, and has two medical conditions which compromise his health and could result in more adverse consequences of contracting Covid 19, and wherein he has during his time in custody on at least one occasion been moved to the infirmary to be observed for symptoms consistent with the virus, and for the need to be tested for Covid, surely must be in the "necessary" category for prevention. If that is not a "necessary" case for the issuance of a face covering, for a detainee asking to wear one, what is "necessary"?

[52] All of this is happening in the context of a second information note, put before this court and filed in evidence, advising the court of a recent "outbreak" of Covid 19 in the Toronto South Detention Centre. When one compares the two information notes it is unclear how many cases are referenced in the recent declaration of there being an "outbreak" in the second information note. There is no doubt that inmates have contracted Covid 19 while in jail. This is not an imaginary fear, it is a very real risk, with potentially serious medical consequences for a person like Mr. Stevens. When the court carefully reviewed the notes, it seems that the number of inmates diagnosed with Covid 19 has gone up from one case, to two cases. Despite the court cross-examining Crown counsel in that regard for further details as to the public health declaration of an "outbreak" at the Toronto South Detention Centre, where only 2 inmates had contracted the virus, no further information was forthcoming. No further information has been forthcoming to and including today, the day when sentence is to be imposed.

[53] And yet, the court has learned from a news story broadly circulated in the public domain, on CBC, that the Toronto South Detention Centre and Public Health, have released information relating to the current outbreak, posted Dec. 19, 2020, in https://www.cbc.ca/news/canada/toronto/toronto-south-detention-centre-1.5849056. In that release, reference is made to there being 54 inmates at the Toronto South Detention Centre having contracted Covid 19. This is far in excess of the 2 inmates referred to in the "information note" for the purpose of the court imposing sentence. As recently as last night, the media has not reported on any further update from the Toronto South Detention Centre or Public Health. It is truly unfortunate that the court needs to look to the news for the truth as to what is happening in this jail, to obtain highly relevant information relating to this situation for sentencing a detainee being housed there. The court also has no knowledge, subject to seeing and hearing Mr. Stevens on the day of sentence, as to whether he is one of the 54 or not. It is not a question the court should properly ask him, given confidentiality concerns. It is also regrettable that the court was advised when selecting this date, where the court did not wish to delay sentence any further, that defence counsel, and Crown counsel who made submissions in this case, might not be available on the date this sentence will be imposed. It is only in the exceptional circumstances of the court not having been provided this essential and significant information in a timely way that the court has reached out and found this information. The court only read a short portion of this press release relevant to the important consideration of the number of positive cases among the detainees or inmates, of 54, and the note that in response to this much larger outbreak, that "masks will be provided to inmates if required". "Required" is a word different from "necessary", again not defined. History has shown that for Mr. Stevens, who no doubt feels that a face covering is necessary and required, the past failure of the Toronto South Detention Centre to provide this protection gives no comfort to Mr. Stevens or the court, particularly in his unique circumstances and history at the facility.

[54] Courts have essentially taken two routes to consider the impact of Covid 19 in sentencing. One is for a special enhanced credit arising from the Covid 19 pandemic for presentence custody. Many judges have declined to give any special credit for Covid 19, arising from a situation of an accused having no underlying medical conditions which might make the accused more susceptible to medical complications if the accused contracts the virus. There have been a number of cases which have imposed somewhat of an arbitrary number, in the range of 30 days credit, added to an enhanced lockdown credit, as almost a rough-cut recognition of the additional stress or anxiety that an accused may experience in custody, arising from fears related to Covid 19. The court has read many of these cases, although they are not cited. This is a credit looking back, to the time spent to that point in custody. Essentially, the defence is not requesting that as a reflection of the Covid 19 risk to Mr. Stevens while serving presentence custody.

[55] Another approach has been looking to the future, with respect to a sentence to be imposed. This is the approach which the defence has asked this court to take. This court would note that at the time of defence submissions, the Summers credit of 1.5 days per 1.0 day of presentence custody would have resulted in a credit of approximately 12 ½ months. Based upon the first set of lockdown records of 63 days (which underestimated the number of lockdown days), the credit of 1.0 for each day of lockdown proposed by the defence which the court would find to be an entirely reasonable submission given the evidence before the court, would have resulted in a total enhanced presentence custody credit of approximately 14 ½ months. When considered in the light of the joint submission agreed to by the defence, this would leave a remaining period of 3 ½ months. The court reflects on this submission requesting future consideration as to the sentence to be imposed, to consider the Covid 19 risk, as the genesis for the defence looking forward to a perspective of looking at a future sentence in light of Covid 19 risks, rather than a consideration of a past Covid 19 credit for presentence custody.

[56] The approach to a future sentence imposition is based primarily on two cases.

[57] The first case which the court considers arise from the comments of Justice Pomerance in R. v. Hearns, 2020 ONSC 2365, at paras. 15 and 16, where she stated:

How does all of this [the COVID-19 pandemic] impact the fitness of sentence? Clearly, the pandemic does not do away with the well-established statutory and common law principles. However, the pandemic may impact on the application of those principles. It may soften the requirement of parity with precedent. The current circumstances are without precedent. Until recently, courts were not concerned with the potential spread of a deadly pathogen in custodial institutions.

COVID-19 also affects our conception of the fitness of sentence. Fitness is similar to proportionality, but not co-extensive with it. Proportionality dictates that the sentence should be no more than is necessary to reflect the gravity of the crime and the moral blameworthiness of the offender. Fitness looks at a broader host of factors. A sentence may be fit even if it is not perfectly proportionate. Fitness looks, not only at the length of a sentence, but the conditions under which it is served. As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.

At para 20, the court stated:

No one is to blame for the pandemic. I accept that those in charge of jails are doing their best to control the spread of infection. Nor does the issue fall neatly into the category of collateral consequences. There is nothing collateral about the conditions of imprisonment - they are as direct a consequence as one can imagine. Yet, the impact of the pandemic is a matter that is extraneous to the pillars of proportionality - the gravity of the offence and the moral blameworthiness of the offender. The point to be taken is this: a sentence may be reduced where it is necessary to denounce state conduct, or where it is necessary to account for other punitive consequences, or where the sentence would have a more significant impact on an offender. In this case, the impact is not attributable to the characteristics of the offender, though in some cases there may be heightened vulnerability. The impact is attributable to the social conditions of the time, which are very different than those in the past. COVID-19 is not a mitigating factor in the classic sense. However, it adversely affects conditions of imprisonment, and increases health risks for those in jail. On that basis, it is an important part of the sentencing equation.

[58] Secondly, the court considers another judgment of the Superior Court of Ontario. The case was somewhat similar to the scenario of Mr. Stevens. This court finds the reasoning of Justice Davies in R. v. Studd, 2020 ONSC 2810 compelling and relevant to the case at bar.

[59] Much like the record in the case at bar, the record in Studd from the Toronto South Detention Centre indicated that detainees are only provided personal protection equipment, such as face coverings, where "necessary", a word not defined in the information note. As interpreted by Justice Breese Davies, and found by this court, the Toronto South Detention Centre does not permit detainees to wear face coverings, even if they ask for it, except in unknown somewhat rare undefined situations considered "necessary" by correctional staff. This court would infer that the definition of "necessary" as noted by the Toronto South Detention Centre is not in line with the recommendations of Public Health authorities. Public Health authorities have made a recommendation that where a 2 metre physical distance cannot be maintained (such as in a jail) a face covering is required, in an indoor open environment. (See Public Health Ontario physical distancing guidelines, and the City of Toronto By-law 541-2020). In principle, this court would find the application of the Public Health guidelines, would require the wearing of face coverings where 2 metre physical distancing cannot be maintained. There is no suggestion nor any evidence that there is plexiglass or other separation between detainees in the open units of the Toronto South Detention Centre, which many judges visited just prior to the opening of the facility. This detention facility is in the City of Toronto. Further, it is to be noted that the City of Toronto is currently in the second wave of the pandemic, and has moved from the Red Zone to the Grey Zone, with greater restrictions to curb the spread of the Covid 19 virus. It is noteworthy as well, as noted above, that as of a few weeks ago, there is currently a Covid 19 outbreak at the Toronto South Detention Centre.

[60] In the Studd judgment, Justice Davies noted the following:

"42 The Supreme Court of Canada has recognized that there will be situations that call for a sentence outside the normal sentencing range because of the specific circumstances of a particular case. 14 However, proportionality must still prevail. Individual or collateral consequences cannot reduce a sentence to the point that it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender. 15

43 The risks posed by the COVID-19 pandemic to those who are incarcerated is one of those circumstances that can be taken into account when deciding whether a sentence below what would otherwise be imposed is nonetheless just and appropriate. 16 Were it not for the COVID-19 pandemic, I would order Mr. Studd to serve a further four months in custody.

44 If I sentenced Mr. Studd to a further four months in jail, he would be subject to particularly harsh conditions throughout that time. He would face an ongoing risk of infection. He would also experience restrictive conditions as correctional institutions attempt to prevent infections and manage any outbreaks.

45 As the Court noted in R. v. Hearn, our sense of community, decency and humanity during this public health emergency must extend to incarcerated individuals. If the time an individual has already served in custody will address the principles of sentencing, even imperfectly, the Court should not impose a further term of imprisonment in the unique circumstances of the current global health crisis. In those cases, a sentence that will ensure immediate release from custody will be just and appropriate, even if it is below the range that might otherwise be imposed. 17 "

[61] This court finds persuasive the reasoning of Justice Pomerance and Justice Davies in the two judgments noted above. The court finds persuasive the defence submission that a future sentence of incarceration of Mr. Stevens, given his unique underlying medical conditions, would be a sentence which is particularly harsh, given that there is now an outbreak at the detention centre. There is no doubt that his medical conditions make him vulnerable and at much greater risk of serious consequences if he contracts the virus.

[62] The Court of Appeal for Ontario has considered the issue of fitness of sentence, in cases that have come before it this year, where the subsequent scenario of the Covid 19 pandemic has arisen. Generally speaking, in R. v. Morgan, 2020 ONCA 279, [2020] O.J. No. 1978 (C.A.), the court has commented that this is an issue for the consideration of parole authorities in their decisions with respect to release. In R. v. Lariviere, [2020] O.J. No. 2264 (C.A.), the court also declined to reduce an imposed sentence in light of the Covid 19 pandemic. In the very recent judgment in R. v. Reddick, 2020 ONCA 786, in the court's consideration of the issue of fitness of sentence, the court reviewed a record where the sentencing judge had considered the scenario of lockdowns imposed after the imposition of sentence. The court accepted the defence submission that lockdowns are likely Covid 19 related, and that hardship arising from lockdowns can quality as a collateral consequence that warrants consideration during sentencing, referring to Morgan, supra. In upholding the sentence, the court found that the sentencing judge had already allowed for the impact that the virus would have on the hardship of the sentence she imposed, and the Court declined to impose additional credit.

[63] However, in this case, the court notes that the parties have agreed upon a joint submission of 18 months incarceration, less presentence custody credit, to be followed by a period of probation, together with an ancillary order that a DNA sample be taken. Having reviewed very carefully the evidence in this case relevant to the offender, including his aboriginal background, his extensive criminal record and evidence related to the offences, the court is not inclined to find that a sentence below 18 months incarceration would be appropriate, even considering the Covid 19 pandemic.

[64] Notwithstanding the position of the parties, the court finds that there should be a special Covid 19 enhanced presentence custody credit for the stress, anxiety and potential exposure of Mr. Stevens to the risk of Covid 19 while at the Toronto South Detention Centre, while in custody awaiting sentence. It is to be noted that he has already been sent to the infirmary for 7 to 8 days arising from his having Covid 19-like symptoms, and he required Covid 19 testing. That clearly caused considerable stress to Mr. Stevens, given his very significant underlying medical conditions. Further, as noted above, there is currently an outbreak of Covid 19 of an extent at the Toronto South Detention Centre, not noted in any current information note provided to the court. From the last information note and time of guilty plea and submissions on sentence, and just a few days ago, an outbreak of 54 cases has been released in information to the public. This has no doubt further exacerbated the stress and anxiety of Mr. Stevens, a detainee who previously requested a face covering or mask and has been denied this request. The court is appalled that detainees and inmates are not being provided face coverings as suggested for members of the public in the community. The court is even more appalled that this is not happening for detainees and inmates who request this protection, and are denied for reasons related to expense of a face mask. In all of the circumstances, the court gives a further enhanced presentence custody Covid 19 credit of 2 months and 8 days to Mr. Stevens.

SENTENCE IMPOSED

[65] In all of the circumstances of Mr. Stevens as an offender, and considering the offences before the court, the 18 month period of incarceration with probation sentence jointly proposed by the parties is appropriate.

[66] As noted above the court gives enhanced presentence custody credit for the actual presentence custody of 249 days. This enhanced credit is composed of the Summers credit, noted above (bringing credit up to 12 ½ months), the Duncan lockdown credit (further bringing up the credit by an additional 97 days, or 3 months and 7 days) which would raise the enhanced presentence custody credit to 15 months and 22 days credit. After the imposition of the enhanced presentence custody credit for Covid 19 (of 2 months and 8 days) this gives rise to a total enhanced presentence custody credit of 18 months.

[67] The court imposes the enhanced presentence custody credit of 18 months in the global imposition of sentence. This credit is noted on the charge of break and enter, with intent to commit an indictable offence. The same credit is imposed, concurrent, on the charge of unlawfully in a dwelling offence. On the charge of failure to comply with the probation order, a concurrent actual presentence custody period of 90 days concurrent is to be noted, with enhanced presentence custody credit of 125 days, concurrent, is to be noted. On the first charge of break and enter, a suspended sentence is imposed, with 2 years' probation. Concurrent suspended sentences are imposed for the other two offences, each to be with the 2 year probation order.

[68] The 2 year term of probation will include the following terms. He will be required to comply with the mandatory terms of probation, including to keep the peace and be of good behaviour. He will be required to report to a probation officer within 7 business days of his release from jail, by telephone, to (416) 314-9701, and thereafter as directed by probation. Mr. Stevens if you are going to move to the Thunder Bay area, you should indicate that in your first phone call with the probation officer, to ensure that your order and reporting can be transferred to the jurisdiction where you plan to live. You will be required to attend for any assessments and counselling for substance dependency as directed by your probation officer, and to sign releases to enable your probation officer to monitor that condition. You are not to have any direct or indirect contact with the victim, Caitlin McConnell. You are not to attend, nor to be within 100 metres of 565 Dovercourt Road and 46 Cecil Street, both within the city of Toronto. You are not to possess any weapons as defined in the Criminal Code.

[69] The court considers the request that a DNA sample to be taken. The offence of break, enter with intent, to a residential premises, contrary to s. 348(1)(d), is pursuant to s. 487.04(a.1) a primary designated offence. The offence of unlawfully being in a dwelling with intent to commit an indictable offence contrary to s. 349, is pursuant to s. 487.04(c)(x) a secondary designated offence. Both parties agree that it is appropriate that a DNA sample be taken in relation to these two offences. The court has considered s. 487.051(1) and (2), for the primary designated offence. The court finds that the impact of such an order on Mr. Stevens' privacy and security of the person would not be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders. In relation to the secondary designated offence, the court considers s. 487.051(3), and the criteria relating to Mr. Stevens' lengthy criminal record, the nature of the two offences where Mr. Stevens entered locations where he was unknown, the circumstances surrounding their commission and the impact such an order would have on his privacy and security of the person. In all of the circumstances, and bearing in mind that this order is part of the joint submission, the court makes the order for a DNA sample to be taken in relation to the secondary designated offence.

[70] Pursuant to s. 737 of the Criminal Code, in light of the fact that Mr. Stevens is currently in receipt of no source of income, the court finds that the imposition of victim surcharge would cause undue hardship to Mr. Stevens. Accordingly the court orders that he be exempted from payment of the victim surcharge.

Released: December 23, 2020

Signed: Justice Beverly A. Brown