ONTARIO COURT OF JUSTICE
DATE: January 5, 2021
Central East Region
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
MICHAEL RODGERS
Before: Justice F. Javed
Heard on: October 21, December 17, 2020
Reasons for Sentence on: January 5, 2021
Counsel: N. Hegedus, counsel for the Crown S. Yeghoyan, counsel for the defendant
F. Javed J.:
I. Introduction
[1] On July 18, 2020, Mr. Rodgers was arrested by the police after droving a motor vehicle while prohibited which led to a short police chase resulting in his vehicle landing in a ditch. Mr. Rodgers was held in pre-trial custody and quarantined at the Central East Correctional Centre (“CECC”) as a result of the Covid-19 pandemic before being granted bail. However, two months later, on September 7, 2020, he reoffended by driving a motor vehicle and leading the police on another police chase. This time, he fled on foot but was arrested and determined to be violating a term of his release order prohibiting him from driving and was also breaching his probation order. He returned to CECC, quarantined again, and remains in custody pending sentence.
[2] Mr. Rodgers pled guilty to six offences contrary to the Criminal Code. They include: two counts of failing to stop for police, contrary to s. 320.17, one count of failing to comply with a term of his probation order requiring him to keep the peace and be of good behavior contrary to s.733.1, one count of failing to comply with a term of a release order, namely by occupying the front seat of a motor vehicle, contrary to s.145(5)(a) and two counts of operating a motor vehicle while disqualified contrary to s.320.18.
[3] The Crown proceeded by indictment on all counts. Mr. Rodgers elected to have the matter heard in the Ontario Court of Justice and pled guilty before me.
[4] The findings of guilt were registered on October 21, 2020 with all parties appearing by audioconference. This was after a judicial pre-trial conducted weeks before the plea in which Mr. Yeghoyan advised he would be seeking a pre-sentence report (“PSR”) to assist with an eventual sentencing hearing. In view of the Crown’s indictable election, I was satisfied I had jurisdiction to proceed with a guilty plea by audioconference by virtue of (i) a broad reading of s. 650(2)(b) and s.715.23 of the Criminal Code, (ii) the informed waiver of Mr. Rodgers to not attend in person for the guilty plea and (iii) the interests of justice as Mr. Rodgers was in custody. I directed the parties at the JPT to reduce the facts to writing to avoid any confusion during the audio plea. Further, I would hear sentencing submissions and deliver my sentence with Mr. Rodgers in person. The parties agreed to proceed this way. During the guilty plea, I was satisfied with the telephone technology, I completed a plea comprehension inquiry and the parties filed an agreed statement of facts (“ASF”) as Exhibit 1. A PSR was ordered and the matter was adjourned for sentence.
[5] On December 17, 2020, I heard sentencing submissions with all parties present. The Crown filed Mr. Rodger’s criminal record as Exhibit 2. Mr. Yeghoyan filed the PSR as Exhibit 3. He also filed a report from CECC setting out the lockdown history of Mr. Rodgers while in custody (“the lockdown report”) as Exhibit 4. Finally, the defence filed a prospective employment letter as Exhibit 5. On today’s date, Mr. Yeghoyan supplemented Exhibit 4 with an updated lockdown report which is dated January 4, 2021. This will be made Exhibit 6.
[6] After hearing submissions, I decided to briefly adjourn to consider my reasons for sentence. These reasons will address two issues:
(i) What is a fit “global” sentence for the offences? And
(ii) What is the appropriate credit for calculation of pre-sentence custody (“PSC”) at CECC during the Covid-19 pandemic? Specifically, is Mr. Rodgers is entitled to further credit for harsh conditions, namely being locked down in CECC and for quarantining because of the Covid-19 pandemic?
The Positions of the Parties
[7] The Crown submits a fit global sentence is 2.5 years or 30 months less credit for PSC. Further, the Crown submits the court should impose a three-year driving prohibition for each driving offence concurrent to each other less any time Mr. Rodgers was subject to a driving restriction as part of his release order: s. 320.24(5.1). The parties agree Mr. Rodgers was on bail for 32 days with a term restricting him from driving which should be deducted from the three-year prohibition which would result in a net prohibition of 1048 days or approximately 35 months: R. v. Lacasse, 2015 SCC 64, 2015 S.C.J. No. 64 at paras. 112-113.
[8] Mr. Yeghoyan submits the court should impose a global jail sentence in the range of 12-15 months less PSC. With respect to the calculation of PSC, the parties agree that Mr. Rodgers has been in custody at CECC awaiting sentence from July 18 to August 6, 2020, a period of 19 days and from September 8, 2020 to January 5, 2021, a period of 119 days which represents a total of 138 days. Mr. Rodgers was granted bail from August 6 to September 7, 2020, a period of 32 days which does not count towards PSC. [1] The parties agree the 138 days should be credited using the formula of 1.5:1 pursuant to R. v. Summers, 2014 SCC 26 (“Summers credit”). This would translate to at least 207 days of PSC.
[9] Mr. Yeghoyan submits the court should award further credit for harsh conditions which included partial lockdowns at CECC pursuant to R. v. Duncan, 2016 ONCA 754 (“Duncan credit”). He argued of the 138 days, 28 days involved partial or full lockdowns which is evidence of harsh conditions and merits further credit at the rate of 1.5:1. In other words, 28 of the 138 days should be awarded credit at the rate of 3:1, amounting to 84 days.
[10] Further, Mr. Yeghoyan submits an additional 23 of the 138 days were spent by Mr. Rodgers quarantining at CECC because of the Covid-19 pandemic. The first block of time was during the initial entry at CECC and the second block was after he reoffended and returned to CECC in August 2020. He argues the time spent quarantining was particularly harsh because Mr. Rodgers was isolated from others. He says this too warrants extra credit at the rate of 1.5:1 or an overall credit of 3:1, amounting to 69 days. He referred to this as “quarantine credit”.
[11] The Crown took no position on the request for “lockdown” or “quarantine” credit. In other words, the Crown did not argue against the request to have 49 of the 138 days credited at the rate of 3:1 due to lockdowns and quarantining. Mr. Yeghoyan says the balance of the overall PSC which is 89 days be credited at the Summers rate of 1.5:1 which amounts to 133 days. If I accept his submission, I would therefore credit the 138 days of PSC as 286 days.
[12] I will explain why I have determined a fit global sentence in this case is 18 months imprisonment less calculation of PSC which I have calculated using the defence submissions. I am satisfied on this record that both the “lockdown” and “quarantine” credit fall under the legal umbrella of Duncan credit because they meet the definition of harshness. With respect to credit for quarantine, I have examined this issue both under the Duncan umbrella and as a collateral consequence of being detained during the Covid-19 pandemic pursuant to the principles in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48.
The circumstances of the offences
[13] The circumstances of the offences were reduced to writing in ASF as Exhibit 1. The seminal facts for the two offence dates are as follows.
[14] On July 18, 2020, Mr. Rodgers was investigated driving a motor vehicle as he was driving “all over the road”. He hit a shoulder and drove towards oncoming traffic. He was pursued by police and failed to stop. At one point he drove through a cornfield at 60km/h. Finally, he hit a berm going airborne and landed in a ditch. At the time of driving, there was a passenger in the vehicle. Upon being investigated, he exhibited signs of impairment but did not blow over the legal limit. He was a prohibited driver at the time. Mr. Rodgers was held in custody but ultimately released on an order prohibiting him from occupying the front seat of a motor vehicle.
[15] On September 7th, Mr. Rodgers was again investigated by the police driving a motor vehicle. He was told to stop by the police and fled at a high rate of speed resulting in a brief police chase. In doing so, he cut off sidewalk traffic, reaching speeds of 100km/h in a 50km/h zone. Ultimately, the pursuit was called off for safety reasons. Witnesses saw Mr. Rodgers and a female exit the car and run away from the scene. He was pursued by the police and a K9 dog on foot and ultimately apprehended. A search incident to his arrest revealed he was in possession of pills and credit cards not in his name. It would appear the credit cards had been used. At the time, he was on three different probation orders requiring him to keep the peace and be of good behavior.
Victim input
[16] The Crown did not file any victim input in this case despite making best efforts to do so. As a result, I don’t know anything about the circumstances of his passenger including if she was injured. With the absence of any evidence, I will assume she was not.
The Offender
[17] Mr. Rodger’s personal circumstances are detailed in a comprehensive PSR which was made Exhibit 2. He is a 24 year-old repeat and drug addicted offender. Mr. Yeghoyan submitted that the triggering event that led Mr. Rodgers down the path to crime and drugs began when his parents separated when he was 5-6 years old. The PSR author spoke to many family members and noted that while his parents had an amicable relationship after the split, Mr. Rodgers and his siblings took it hard. His siblings were able to cope with the separation, but Mr. Rodgers was not.
[18] Mr. Rodgers lived with his mother who was interviewed for the PSR. Starting at the age of 16, Mr. Rodgers became defiant with house rules and was kicked out of the home but returned intermittently. His mother noted he continues to frequent the home but only when he is not high on drugs. Mr. Yeghoyan noted that after leaving home, he hit the streets of downtown Oshawa and got involved in the drug subculture, ultimately becoming addicted to drugs. This led to an intense addiction to cocaine and crystal meth. Mr. Rodgers told the author at one point, he was using .5 grams of crystal meth every day. That is a shocking amount of drugs and truly reveals the extent of the dependency. It also explains to some degree the criminal record because ingesting that much drugs is an expensive proposition unless it is obtained by illegal means.
[19] Mr. Rodgers has completed Grade 8 and earned some Grade 9 credits while in custody. He noted that he struggled with school growing up and was tested for ADHD but no diagnosis was made. His mother noted he excels with hands-on work but struggles with “book work”. Mr. Rodgers indicated he’s anxious to finish schooling and get employed. In the past he held seasonal jobs and the defence filed a letter of employment indicating he has a job at Rodgers Maintenance Limited waiting for him upon release: Exhibit 5.
[20] Mr. Rodgers is currently dating a partner who is not involved in crime or drugs. She is also pregnant with his child. That is a double edged sword because it means his partner and child will depend on him financially and emotionally. It may be the spark he needs to remain drug free and financially independent. Mr. Rodgers told the court this is the longest time he’s been in jail and has had time to think and wants to make a change for the better.
[21] It would appear that the lynchpin of Mr. Rodgers’s issues are substance abuse addictions. He abuses both drugs and alcohol and knows this is his vice and must be brought under control. However, as the author notes, “the subject has made zero effort to initiate any form of treatment”. That is troubling because as his record reveals, he’s had ample opportunity to do so. It causes me to seriously question the sincerity of his insight on this occasion and whether he’s truly motivated to get the addiction under control. He did tell the author he wants to attend a rehabilitation centre to address his substance abuse but as noted by his mother, it’s unclear whether this an empty offer or not. I am cautiously optimistic.
[22] Collateral sources described Mr. Rodgers as a good guy with a big heart who made a lot of stupid decisions in the past. His family said he’s very loving. I accept all of this but when Mr. Rodgers is high on drugs or alcohol, he turns into a different man. Clearly, he knows this is the case and should be some self-motivation to do better.
[23] In the end, the PSR author notes despite the lack of motivation, he is committed to doing what it takes to get better. He provided open access to his family and background, warts an all and didn’t minimize his conduct. He vowed never to drive again and knew he made unwise decisions. The author does not say he cannot be supervised or is incorrigible. As a result, I accept the defence submission that rehabilitation is not lost for Mr. Rodgers as this appears to be a true cross-roads in his life and as a result, the court should be careful about imposing a crushing jail sentence as invited by the Crown.
The Sentencing Principles
[24] Section 718.1 of the Criminal Code provides that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In assessing the gravity of the offence, I must take into two aspects. First, the penalties prescribed by Parliament and second, the circumstances relating to the offender's commission of the crime, with the focus being on any features that either increase or decrease the harm, or the risk of harm, to the victim(s) or to the community.
[25] The assessment of an offender's "degree of responsibility" refers to the offender's culpability. I must consider Mr. Rodgers’s actions, mindset and motivation in committing the offence. I must also take into account his background and circumstances.
[26] Section 718.2 of the Criminal Code directs that in determining the appropriate sentence, a sentencing judge must consider any relevant aggravating or mitigating circumstances relating to the offence or the offender. It is by giving due regard to these factors that I can ensure that the sentence imposed is proportionate. I am also required to respect the principle of parity by looking at sentences imposed for similarly situated offenders: R. v. Friesen, 2020 SCC 9, [2019] SCJ No. 100.
[27] The aggravating factors are:
(i) Mr. Rodgers has a long and cognate criminal record. It was filed as Exhibit 2. It has adult convictions starting in 2017 and ending in February 2020 before these offences occurred and has convictions for similar offences which the Crown says shows a complete disregard for court orders and cries out for specific deterrence;
(ii) The circumstances of the offences endangered the safety of the community and his passenger. Driving is a regulated activity and is a privilege, not a right. Mr. Rodgers knew he wasn’t licensed to drive but still chose to and then put the safety of others at risk by driving at high speeds. I agree with the Crown that this poses a real risk to the community. This might explain why the police called off a chase mindful of safety concerns. It is only by happenstance that nobody got injured; and
(iii) Mr. Rodger’s committed similar offences while on a release order prohibiting him from engaging in the same conduct. The two offences were separated by mere months. This shows a complete lack of regard for court orders and cries out for specific deterrence.
[28] In mitigation, unfortunately, there isn’t much except Mr. Rodgers pled guilty to two sets offences which spared the court and justice system from trying the offences during the Covid-19 pandemic. I accept his expression of remorse as genuine and not contrived because he got caught. In the PSR, he spoke about knowing what he did was wrong and also knowing what he needs to do to avoid doing it again. For reasons that I will explain, I don’t think this is an empty moment of clarity. It is perhaps a final proverbial fork in the road.
[29] In cases involving driving, where an offender has fled the scene, the primary principles of sentencing that prevail are denunciation and deterrence: R. v. Frickey, 2017 ONCA 940. However, rehabilitation remains an important goal with any sentence particularly in a case where the prospects are still likely. I am satisfied Mr. Rodger’s case presents with these prospects.
[30] I have considered that the offences occurred in context of a serious drug addiction which speaks to Mr. Rodgers’ actions, mindset and motivation in committing the offences. I have balanced with this with the Crown’s submissions, which is a fair one borne out by the PSR, that Mr. Rodgers hasn’t taken serious measures to deal with his addiction. In R. v. Greene and R. v. Lazo, 2012 ONCA 389, [2012] O.J. No. 2547 (C.A.), the Court of Appeal recognized that addicts with long standing addictions to hard drugs will often have setbacks in their attempts to overcome their addiction. In Greene, the court acknowledged there are bound to be relapses on the road to recovery. The court held: “[T]he courts must not be overly critical of an offender in the position of this appellant. What is important is that he has made and continues to make efforts at curbing his addiction”: at para. 6.
[31] It is sobering to know that while in custody Mr. Rodger’s voluntarily attended a substance abuse session and according to the addiction counsellor Mrs. Kelly Kyle, he was “an active member of the group, seemingly engaged in the information provided”. Perhaps a long stint in custody during a global health emergency was the fuel he needed to get motivated to turn his life around, but this is a positive step as nobody was compelling him to take these steps. I realize as well that Mr. Rodgers is youthful at 24 and his drug exploits appear to have started only three years ago in 2017. It’s been a rocky three years plagued with an intense addiction to crystal meth which I know to be a highly addictive and insidious drug. It can ravage human beings and take control of their lives. Mr. Rodgers acknowledged he was quickly “hooked” and using crystal meth “every day” which leads me to reasonably infer that his criminal conduct was driven in some part by his addiction. In short, despite his poor history in the community, there is a credible and tangible glimmer of rehabilitation hope as long as Mr. Rodgers remains motivated to deal with his serious addiction. It would appear his family didn’t know the full extent of his addiction and were shocked when they did. They remain supportive of his efforts which also bodes well for his prospects. Mr. Rodgers will need to lean on his family and community to help him battle the addiction.
[32] The Crown submits to give effect to the principles of deterrence and denunciation, the court should impose an “exemplary sentence” to send the message to Mr. Rodgers who needs to be deterred that this kind of conduct is unacceptable. There is no doubt that cases such as Lacasse made it clear that jail sentences where offenders are separated from the community act as a message to the public and are important to achieve the goals of deterrence, but this has to be balanced with other relevant sentencing principles.
[33] I have considered that Mr. Rodgers is 24 years old. While not a youthful first offender which would attract the principle of restraint, I cannot completely ignore the potential effect of an unduly long jail sentence. In R. v. Borde, [2003] O.J. No. 354 (C.A.), at para. 36, the Ontario Court of Appeal held where a youthful offender is to be sentenced to a first penitentiary sentence it should not be determined solely on the basis of general deterrence and denunciation, rather the sentencing court should proceed on the basis that the shortest possible sentence will achieve the relevant objectives. I acknowledge Mr. Rodgers is not youthful or a first offender but as his criminal record makes it clear (Exhibit 2) his criminal exploits started to take flight in 2017 which was around the time he was truly on his own and started abusing drugs. He appears to be a very immature 24 year-old with little education and little life skills. He is not an experienced criminal nor an incorrigible one. Curbing an addiction can work in tandem with upgrading one’s education and employability. Exhibit 5 is a prospective letter of employment from Rodgers Maintenance Limited which says employment is available to him “when he is available to work”.
[34] I must also consider the principle of parity which requires me to consider sentences that were imposed for offenders who were similarly situated. I acknowledge that precedents are intended to provide guidance as opposed to dominating the sentencing process: R. v. Rawn, 2012 ONCA 487, [2012] O.J. No. 3096 at paras. 29 and 30. That said, I have looked to similar cases to see if the facts of this case merit a penitentiary sentence in a case where a repeat offender took the police on a chase but thankfully didn’t result in any injuries or major property damage. The Crown’s position appears to be primarily motivated by protecting public safety by sending a strong message to would be drivers who choose to take the police on a wild goose chase creating danger along the way. I agree this is a laudable public safety objective but respectfully, I disagree that a penitentiary sentence is required in this case to meet this objective.
[35] Sentencing is not a science and no two cases will be the same. Indeed, no two offenders will be the same and the balancing will inevitably shift with the circumstances. Counsel did not provide me with any similar cases, but I have done my own research. In R. v. Rockey, 2018 ONCA 646 the sentencing judge imposed a sentence of 2.5 years after trial for the offences of fail to stop for police and drive disqualified. The Court of Appeal reduced this sentence to 18 months citing that the court failed to take into account the principle of totality and didn’t give due consideration to the offender’s mental health and rehabilitative efforts. There are no similar mental health issues in this case and as I have held, the door to rehabilitation is not firmly closed.
[36] In R. v. Walker, 2017 ONCA 39 the offender pled guilty to a number of offences including flight from police and driving while disqualified. The offender was also impaired by alcohol at the time and also convicted of dangerous driving, attracting a consecutive sentence. The Crown sought “an exemplary” penitentiary sentence of 5-6 years less PSC in view of his criminal record which contained 17 driving related convictions 20 convictions for breaching court orders. The sentencing court noted that the offender’s motivation towards rehabilitation was hollow. In the end, the court imposed a 4 year jail sentence on top of 13 months PSC. The Court of Appeal held this was an illegal sentence in view of the Crown’s election and reduced it to deduct the PSC.
[37] Walker stood for a broader principle that PSC is properly considered as punishment for the offence, and it should therefore be taken into account when calculating the length of the sentence in relation to minimum and conditional sentences: at para. 19. This issue is not engaged here but the courts treatment of the offender’s conduct is helpful. The court in Walker held that the offender’s conduct displayed “a disturbing disregard for the authority of the police and for court orders”: at para. 31. The court also said the following at paras. 34-35:
34 While I am sympathetic to the view that in the case of an offender who suffers from alcoholism and mental health problems, rehabilitation must be given significant weight, the appellant seems only to consider treatment as an option when faced with criminal charges. He has continued to conduct himself in a manner that is extremely dangerous to the public and to disregard court orders designed to protect the public from the risk he poses. He appears to be making little progress in custody.
35 I conclude that this case calls for a substantial period of incarceration for the purposes of general and specific deterrence and for the protection of the public. On the other hand, the sentence should not be one that ignores rehabilitation or discourages the appellant from seeking help for his addiction and mental illness.
[38] I find the above comments helpful in situating Mr. Rodger’s circumstances. Unlike the offender in Walker, this will be Mr. Rodger’s second and third driving convictions and seventh and eighth convictions for breaching court orders. Mr. Rodgers suffers from a drug addiction and the PSR notes that probation and parole has been monitoring him since 2017 and Mr. Rodgers has shown small bursts of motivation to address the root problems but keeps getting into trouble with the law. That said, he has never been cited for not complying with his rehabilitative efforts. He completed a Changing Habits life skills session and a “Problem Solving” life skills session but has shown less motivation to deal with his substance abuse issues. As previously noted, this lack of motivation is likely attributed to Mr. Rodger’s lack of maturity. He has taken some steps while in custody and told the court he’s motivated to tackle the problem so he could return to the community as a sober man who can help raise his soon to be born child. I am prepared to give Mr. Rodger’s the benefit of any skeptical doubt. When juxtaposed to the offender in Walker, Mr. Rodger’s criminal history appears to be in the infancy stages whereas Mr. Walkers’ was well into adulthood. As a result, it is not surprising the Court of Appeal deemed a penitentiary sentence was fit for Mr. Walker. For reasons already expressed, I cannot come to the same conclusion for Mr. Rodgers. However, should he choose to reoffend after this sentence, he may very well find himself along the same trajectory as Mr. Walker.
[39] I have also considered the case of R. v. Montgomery, 2010 ONSC 4218 in which Justice Lafrance-Cardinal sentenced an offender who pled guilty to a number of offences committed on different dates. The offender had Indigenous background and a very difficult set of life circumstances. He was a prohibited driver and on two occasions led the police on serious chases, driving dangerously. He was also a prohibited driver. The court cited some of the same aggravating factors in this case (at para. 22) including the risk to the public and breaching court orders and in the end imposed a jail sentence of 6 months for the first flight from police and 15 months imprisonment for the subsequent flight from police. The substantial increase was premised on the basis that he was also convicted of dangerous driving which attracts a consecutive sentence [R. v. Sturge] and convicted of serious drug offences. The same factors don’t apply here and the sentencing lens is entirely different because of the offenders Indigenous background which attracts a Gladue analysis, which also isn’t the case here. That said, I find this case to be helpful because of the courts approach to increasing the severity of the jail sentences for the driving offences. The court also imposed concurrent sentences for the driving while prohibited offences but also increased the apportionment of custody to reflect the gravity of the offences.
[40] I have considered the defence submission about the application of the step principle which has some traction in this case. This principle requires a modest increase in the sentences to reflect the gravity of the offences. In R. v. Borde, 2003 O.J. No. 354 (Ont. C.A.) the Court of Appeal explained this principle in the following terms at para. 36:
This principle cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past. It has little application where the severity of the offender's crimes shows a dramatic increase in violence and seriousness.
[41] In 2017, Mr. Rodgers was convicted for the offence of flight from police which is similar to the offences he has pled guilty to before me. He received an approximate jail sentence of 4 months. Since then, there were no other driving offences. In my view, a penitentiary sentence in these circumstances would not to be a modest step but a leap. It would be unprincipled. Having said that, I must consider that Mr. Rodgers committed similar offences of flight from police on two occasions separated by days. That tempers the step principle to some degree and in my view cannot result in a global sentence of 12 months. That would result in an increase of approximately 8 months for two separate offences without considering the breaches of court orders which is an important factor in situating Mr. Rodger’s specific deterrence. It would dilute the principles of deterrence and denunciation.
[42] In my view, having balanced all the appropriate sentencing principles. I have determined that a fit sentence for the first set of driving offences is 9 months imprisonment, whereas the second set of offences, which is less serious relative to the first but aggravated by the circumstances of the driving while prohibited by a release order, attracts a modest increase, thus, 12 months imprisonment. This takes into account all the sentencing principles including the prospects of rehabilitation which are not entirely lost. This results in a global sentence of 21 months imprisonment.
[43] Next, I have to consider the principle of totality and temper the overall sentence because I am sentencing Mr. Rodgers for two sets of offences. I must determine the sentence to be imposed for each count as required by s. 725(1)(a) of the Criminal Code. The totality principle requires a mitigation of the sentence that would otherwise be appropriate on individual counts: R. v. Jewell (1995), 100 C.C.C. (3d) 270, at p. 279 (Ont. C.A.) and R. v. Ahmed, 2017 ONCA 76, 346 C.C.C. (3d) 504 (Ont. C.A). Having done so, I am satisfied the principle of totality compels me to reduce the global jail sentence to 18 months, thus representing a 3 month reduction. In my view, this remains a fit and proportionate sentence considering all the factors of this case.
[44] I have considered the top end of the range of 18 months as suggested by Mr. Yeghoyan but in my view, this would not give due regard to the aggravating features in this case including the risk to the public caused by his abhorrent driving and complete disregard for court orders, including a release order which prohibited him from doing the exact thing he has been convicted of. Turning to the calculation of PSC.
The pre-sentence custody
[45] There is no dispute that I should award Summers credit for the total amount of PSC custody which is 138 days credited as one-and-a-half or 1.5 days for every day spent in PSC. Mr. Yeghoyan requests additional credit for harsh conditions above and beyond the Summers formula on two prongs: lockdowns and quarantining. The Crown was invited to make submissions on both issues and declined, leaving it to the courts’ discretion. I find both types of situations fall under the umbrella for Duncan credit.
[46] Duncan credit permits sentencing judges to award further credit for harsh conditions for pre-sentence custody. This kind of credit is a discretionary decision which has been the subject of much commentary by courts in Ontario. Recently, in R. v. Rajmoolie, 2020 ONCA 791, Justice Lauwers provided a helpful summary of the law even though he wrote a dissenting opinion disagreeing with the decision of Benotto J.A. who upheld the sentencing judge’s conclusion to decline Duncan credit to the offender who complained that the institution (not CECC) did not properly address his health concerns. Commencing at para. 18, Lauwers J.A. wrote a pithy dissent awarding Duncan credit after admitting some fresh evidence which he said “bridged the evidentiary gap” which was missing in the sentencing hearing.
[47] In Duncan, supra at para. 6, the Court of Appeal held that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation beyond the 1.5 credit referred to in s.719(3.1) of the Criminal Code. To attract enhanced credit on this ground, ‘the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused”. Justice Lauwers observed at para. 56, that Duncan credit does not mandate a second level of credit for PSC. Rather, it confirms that there is no cap on the 1.5 days of credit that can be given for PSC. He observed that in Ontario, some sentencing judges require proof of the conditions of incarceration that justify the credit and the impact of those conditions on the accused whereas other judges do not require rigorous proof and rely on counsel’s submissions.
[48] Here, I have relied on proof in the form of a lockdown report filed as Exhibits 4 and 5 and the submissions of Mr. Yeghoyan with respect to quarantining, as the foundation to award extra credit on both accounts. The lockdown report proves Mr. Rodgers was locked down in his cell for a total of 211.5 hours commencing in July 2020. Most, if not all of the lockdowns were caused by staff shortages which is a troubling fact. It would appear this lockdown period was also experienced during the Covid-19 pandemic which resulted in wide ranging and government mandated restrictions commencing in March 2020. Appellate courts have taking judicial notice of the Covid-19 pandemic and its impact on society in general: R. v. Morgan, 2020 ONCA 279. In R. v. Kandhai, 2020 ONSC 1611 at paras. 7-8, Justice Harris found that additional hardship in serving a jail sentence during the time of a pandemic is obvious, “at least up to a certain degree”. He remarked that the situation (of the pandemic) has led to drastic measures in society at large and is bound to increase day to day hardship in prison and the general risk to the welfare of prison inmates. The sentencing principles mandated him to consider the circumstances of the offender’s lockdowns in crafting a fit sentence.
[49] I agree with the above comments as they relate to pre-sentence incarceration because Mr. Rodgers is in the same position as an offender who has been sentenced and is incarcerated. The fact that he was in and out of detention is of no moment because he is presumed by the law to be innocent until found guilty. During the period of lockdowns, Mr. Rodgers was released on bail for about 32 days but returned to CECC where he experienced further lockdowns. The report notes that on 3 occasions his unit was locked down for less than 6 hours and on 25 occasions, it was locked down for 6 hours or more. Accordingly, Mr. Yeghoyan requests the court treat the 28 days as particularly harsh meriting additional credit at the rate of 3:1, which is double the Summers rate.
[50] With the above in mind, I have concluded that the lockdown report, even without specific evidence from Mr. Rodgers about its direct impact on him permits me to draw reasonable inferences about the impact of being locked in his cell, while everybody including the prison, was dealing with a global health emergency. In this case, the total lockdown hours is 211.5 hours which is a substantial amount of time spent “locked down” in ones’ cell. I realize that the situation in each institution is different and may attract a different analysis. It would appear some courts in Ontario have been particularly critical with the situation at Toronto South Detention Centre (TSDC). I am careful in not importing the unique features inherent to each institution but the fact of being locked down from the perspective of an inmate, isn’t materially different. With respect to lockdowns at CECC, I am persuaded by the comments of Justice Boswell in R. v. M.W., 2020 ONSC 3513, who said the following which I adopt:
43 MW did not file any evidence about how the lockdowns and other restrictive conditions associated with the pandemic have impacted upon him specifically. That said, I take judicial notice that lockdowns and other COVID-related restrictions have a strong tendency to increase stress amongst inmates and tend to lead to feelings of depression and hopelessness.
I also concur with the comments of my colleague Justice Green in R. v. Spicher, 2020 ONCJ 340 who like me, has lamented about persistent lockdowns caused by staff shortages. As a result, I have no trouble finding that the impact of lockdowns on Mr. Rodgers, in the midst of a global pandemic no less, was particularly harsh. I am prepared to enhance the 28 days at a further rate of 1.5:1 above beyond the Summers rate which represents a calculation of 3:1, thus 84 days.
[51] Turning next to the defence submission about quarantining and whether the 23 days spent quarantining was particularly harsh and merits extra credit. This issue is more challenging than lockdowns because the evidentiary record in support of it is less clear. Mr. Yeghoyan submitted Mr. Rodgers had to quarantine when he entered the institution on two occasions which on its face makes sense because I would expect he would have been isolated from other inmates to reduce the possibility of unwittingly transmitting the Covid-19 virus. However, apart from counsels’ submissions, I was not provided with any materials explaining how CECC was tasked to deal with quarantining an inmate, where and how quarantining took place, the length of quarantining, and any other details surrounding the process. All of this evidence or material would have been helpful in firmly evaluating the claim of whether quarantining was a particularly harsh affair.
[52] However, based Mr. Yeghoyan’s submissions, which were not challenged by the Crown who left this issue to my discretion, I accept Mr. Rodgers would have to quarantine when entering CECC on two occasions. I am generally aware that the Quarantine Act S.C. 2005, c. 20, was enacted in Ontario for the purpose of protecting public health by “taking comprehensive measures to prevent the introduction and spread of communicable diseases”. In some, but not all cases, public health has suggested a period of 14 days or two weeks in which one should self-isolate to prevent unwittingly transmit the Covid-19 virus which is a communicable disease. Mr. Rodgers would have quarantined both in July and again in September. Moreover, according to Exhibits 4 and 5, it would appear Mr. Rodgers was also subjected to lockdowns for at least some of the days he was quarantining if the period started upon his entry which I can assume it would have.
[53] On this record, I am inclined to award enhanced credit above and beyond the usual Summers rate because I accept the fact of quarantining which would not have existed if there was no health pandemic. In other words, in a pre Covid-19 world, it was not expected that incoming inmates would have to quarantine for their own safety and that of other inmates and staff. It may be that a particular inmate might have had to quarantine for a different reason unique to that person, but the Covid-19 virus paints a broad brush which I can reasonably assume captures all incoming inmates no matter their background. It was not something he could opt out of. As such, quarantining becomes a relevant collateral consequence for sentencing purposes because Mr. Rodgers had no choice but to quarantine twice, when he entered CECC: Suter, supra at para. 48. Some might think Mr. Rodgers was the author of his own misfortune in reoffending (something he has now admitted) but that is antithetical to the presumption of innocence. The law painted him with a brush of innocence when he stepped foot into CECC. The paint only dried when he pled guilty.
[54] Moreover, appellate courts have taken judicial notice of the impact of Covid-19 in society and have recognized that heightened risks to inmates creates a heightened risk of spread to the general population as staff and service providers go in and out of jails: See for example R. v. Kazman, 2020 ONCA 251 at paras. 17-18. This is perhaps one reason why incoming inmates would have to quarantine to limit the spread of the virus. While I don’t know the particular circumstances of Mr. Rodger’s quarantine, I can reasonably surmise the process of doing so would have involved some extent of isolation from others which according to counsel, impacted his client’s mental health. In my view, this constitutes a harsh circumstance.
[55] I also draw upon the analysis of Justice Pomerance in R. v. Hearns, 2020 ONSC 2365 at paras. 15-24 who noted that a fit sentence must take into account the reality that during a pandemic, 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. These comments were made in the context of considering a reduction of sentence, but they also apply to a detainee who is awaiting disposition. While the process of quarantining would arguably ameliorate the risk of infection and therefore might be welcomed by some inmates, in my view, it is no less psychologically taxing in a congregate setting where one has no control over the risk of exposure and infection. It is also noteworthy that offenders who have been sentenced may not have to quarantine whereas those who are detained and coming in and out of prison when they are deemed innocent until proven guilty – would have to quarantine. Most bouts of quarantine involving isolating oneself from others by eating alone and limiting interaction. It cannot be an easy ordeal. Having said that, I do not imagine quarantining would involve something akin to solitary confinement or lengthy periods of segregation, the perils of which were discussed by the Court of Appeal in Brazeau v. Canada (Attorney General), 2020 ONCA 184, [2020] O.J. No. 1062 (C.A.). No evidence was called on this point, thus I am reluctant to make any firm factual findings above and beyond the reasonable inference of a tangible psychological toll. I am generally aware that prisons are trying their best, following public health guidelines and doing a good job of limiting the risk of infection in the institutions. I gather the same would hold true for quarantining.
[56] The question remains how much credit is to be awarded for having to quarantine due to the Covid-19 pandemic. Some cases in Ontario have awarded extra credit for time spent in custody using Covid-19 as a relevant factor based on the Suter principles because the pandemic and everything that follows from it, is a collateral consequence of sentencing. In my view, this is a principled way to approach the quarantine issue which serves as the impetus for a finding of harsh circumstances justifying Duncan credit. In this case, the evidence of harshness overlaps to some degree with the issue of lockdowns. I realize awarding enhanced credit a discretionary decision and there is no “right” mathematical formula. Each case will be different and will turn on the specific facts and circumstances of the case. Some cases may warrant extra credit while others may not. This case is no different. I accept Mr. Rodgers had to quarantine when entering CECC on two occasions and this period, on at least some occasions, would have overlapped with lockdowns caused by staff shortages. I accept quarantining during a pandemic would have added to his stress and anxiety.
[57] In awarding credit for quarantine, I realize that the situation in the institutions will invariably change as Ontario deals with the fallout of the pandemic. Pomerance J. noted the impact is attributable to the ‘social conditions of the time’ and therefore is an ‘important part of the sentencing equation’. Quarantining may look and feel different in various institutions as the pandemic and the response to it, evolves which may cause the courts to change its response as well. While I am reluctant to use a formula for quarantining, the defence urges me to do so at a specific rate and the Crown did not argue against it. Accordingly, I will accept the defence submission and award credit for quarantining at the rate of 1.5:1, which is above and beyond the usual rate in Summers. Therefore, I will treat the 23 days of quarantining as the equivalent of credit for 3:1 which amounts to 69 days. I should add that in other cases, this amount may or may not be credited and if it is, perhaps at a different rate depending on the facts of the case.
The Sentence
[58] The sentence of the court will be a global jail sentence of 18 months (540 days) imprisonment less PSC of 138 days which I will credit as 286 days using the above calculations. This leaves a remnant of 254 days or approximately 8.4 months imprisonment. I will invite submissions on how to apportion PSC.
[59] The jail sentence will be followed by a one-year probation order with terms targeting counselling for substance abuse, upgrading education and life skills. I realize Mr. Rodgers is already bound a probation order but I am hoping these reasons speak to him and hold him accountable to this court that he is serious about getting his drug addiction under control. I do not know much about the existing orders and in my view, specific deterrence demands specific counselling for his rehabilitation.
[60] On consent, I will impose a driving prohibition for 3 years for each set of driving offences concurrent to each other for a total of 3 years less 32 days or 1048 days which will start today: s.320.24(5.1). I do so as this submission was made on a joint basis even though I have strongly considered imposing a longer prohibition. I have avoided doing so because of some confusion that appears to have arisen about the Crown’s mode of election which would have capped this at 5 years, but to avoid unfairness, I will agree with the position advanced by the parties.
[61] Finally, I will waive the victim fine surcharges as Mr. Rodgers is unemployed and will be serving time in custody. He is impecunious which is evidence of undue hardship.
[62] Mr. Rodgers has a debt to pay to society. Hopefully he will come out sober and committed to remaining drug free. The court encourages him to continue with addiction counselling and upgrading his education in the institution.
Released: January 5, 2021. Mr. Justice F. Javed
[1] For purposes of calculating PSC, I will consider August 6 as a day spent in PSC even though at some point during the day, Mr. Rodgers was released on bail. I will err on the side of including, not excluding this day in calculating PSC. The parties did not argue otherwise.