ONTARIO COURT OF JUSTICE DATE: 2021 02 11 COURT FILE No.: Hamilton 20-447 and 20-448

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

EASTON AITON-POORE

Before: Justice J.P.P. Fiorucci

Heard on: January 29, 2021 Reasons for Sentence released on: February 11, 2021 [1]

Counsel: J. Little, counsel for the Public Prosecution Service of Canada (Federal Crown) D. Wilson, counsel for the Provincial Crown L. Giordano, counsel for Easton Aiton-Poore

FIORUCCI J.:

INTRODUCTION

[1] In 2019, the Hamilton Police Service Vice and Drugs Unit began an investigation into suspected drug trafficking by Easton Aiton-Poore. The totality of the investigation led police to believe that he was in possession of fentanyl for the purpose of trafficking.

[2] On January 22, 2020, the police received judicial authorization to search a residence at 53 Bethune Avenue in Hamilton, a BMW sedan, and a Ford SUV. When the police arrived at the address on January 22nd, they arrested Mr. Aiton-Poore in the driveway. He was sitting in the driver’s seat of the Ford SUV. Two other males were located inside the home.

[3] The police found drugs, firearms, and other evidence of drug trafficking. The police seized 489.65 grams of fentanyl, 249.67 grams of methamphetamine, over 100 Xanax tablets, cell phones, a digital scale, a currency counter, bundled Canadian currency totaling $38,575.00 and smaller sums of U.S., Jamaican and Dominican currency. Forensic extraction conducted on one of the cell phones revealed multiple messages confirming that Mr. Aiton-Poore was engaged in fentanyl trafficking.

[4] The police located and seized the following firearms: (a) a Tradition Pursuit LT Muzzleloader rifle (in the garage); (b) a Harrington & Richardson Model 922 .22 calibre revolver (in the small rear bedroom of the home); and (c) a Taurus PT 111 Millennium G2 handgun (a prohibited firearm) (under the driver’s seat of the Ford SUV). This handgun was loaded with a magazine containing twelve rounds. Police also located and seized additional rounds.

THE GUILTY PLEAS

[5] Mr. Aiton-Poore entered guilty pleas to six offences:

(1) Possession of fentanyl for the purpose of trafficking: s. 5(2) Controlled Drugs and Substances Act;

(2) Possession of methamphetamine for the purpose of trafficking: s. 5(2) Controlled Drugs and Substances Act;

(3) Possession of Proceeds of Crime (Canadian Currency) Over $5,000.00: s. 355 (a) Criminal Code;

(4) Possession of a firearm (Tradition Pursuit LT .50 Cal Rifle) without being the holder of a licence to possess it: s. 91(3) Criminal Code;

(5) Possession of a firearm (HR Model 922 Revolver) without being the holder of a licence to possess it: s. 91(3) Criminal Code; and

(6) Possession of a loaded prohibited or restricted firearm without being the holder of an authorization or licence to possess it: s. 95(2) Criminal Code.

CIRCUMSTANCES OF THE OFFENDER

[6] Mr. Aiton-Poore was 22 years old when he committed these offences. He is now 23 years old. At the time of these offences, he did not have a criminal record. Mr. Aiton-Poore was born and raised in Hamilton. He reports that he had a good upbringing and always had the support of his family, especially his parents and his grandparents. Throughout high school, he was involved in sports including football.

[7] Mr. Aiton-Poore’s parents separated when he was in grade 10. This took a toll on him. It was a tumultuous time for him and for his family. Mr. Aiton-Poore left home and began living on his own when he was 15 years old. When he was in high school and was living on his own, Mr. Aiton-Poore began to associate with peers who were negative influences on him. This led to difficulties in school.

[8] When he left high school, Mr. Aiton-Poore had no plans for post-secondary education or employment. He continued to associate with a negative peer group which, according to Mr. Aiton-Poore, ultimately led to his criminal lifestyle and culminated in these offences.

[9] Mr. Aiton-Poore has no drug addiction issues. He has not been diagnosed with any mental illness, but he thinks that he may have untreated bi-polar disorder, depression and anxiety.

[10] Mr. Aiton-Poore continues to have the support of his mother and grandparents. He reports that during his time in pre-sentence custody (PSC) at the Hamilton-Wentworth Detention Centre, he has gained insight into his offending behaviour. He worked in the kitchen for approximately six months and, more recently, he worked in laundry. Mr. Aiton-Poore also completed an anger management program, courses on understanding feelings and managing stress, and an elective math class. He participated in this programming to better himself.

[11] At the sentencing hearing, Mr. Aiton-Poore expressed his remorse for having committed these offences and stated that he intends to change his life.

THE POSITIONS

[12] Counsel advised that they had reached a joint submission (a global sentence of 12 years imprisonment plus ancillary orders). However, during sentencing submissions, Defence counsel asked that Mr. Aiton-Poore receive enhanced credit (2:1) for each day of PSC he served during COVID-19. The Crown opposed this request.

[13] In these reasons, I address the difficulties that arise when counsel state that a joint resolution has been achieved but make submissions that suggest otherwise. This is a frequent and problematic occurrence in our Courts.

[14] Notwithstanding the disagreement that arose regarding PSC, all counsel maintained that a global sentence of 12 years jail was appropriate.

PURPOSE AND PRINCIPLES OF SENTENCING

[15] Section 718 of the Criminal Code instructs that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. Sentencing judges strive to achieve this goal by imposing just sanctions that have one or more of the following objectives: (a) denunciation of the unlawful conduct and the harm done to victims or to the community that is caused by the unlawful conduct; (b) specific deterrence of the offender and general deterrence of other persons who might commit similar offences; (c) separation of offenders from society, where necessary; (d) assistance in rehabilitating offenders; (e) reparations for harm done to victims or to the community; and (f) promoting a sense of responsibility in offenders, and acknowledgment of the harm they have caused to victims or to the community.

[16] Ultimately, the fundamental principle of sentencing, set out in s. 718.1 of the Criminal Code, is to impose a sanction that is proportionate to the gravity of the offence committed and the degree of responsibility of the offender.

[17] The totality principle in s. 718.2 (c) of the Criminal Code requires sentencing judges to ensure that the ultimate effect of the combined sentence for multiple offences does not “deprive the offender of any hope of release or rehabilitation”. [2]

AGGRAVATING AND MITIGATING CIRCUMSTANCES

[18] Section 718.2 (a) of the Criminal Code states that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

Aggravating Circumstances:

[19] Mr. Aiton-Poore was part of a commercial drug trafficking operation involving significant quantities of fentanyl and methamphetamine. The quantities of drugs and currency seized demonstrate that Mr. Aiton-Poore committed the offences for profit. The large sums involved in this operation place the gravity of these offences and Mr. Aiton-Poore’s level of moral blameworthiness at the higher end of the continuum for these types of offences.

[20] In R. v. Ribble, Agro J. stated the following:

52 More recently, fentanyl powder has flooded the illicit drug market and the number of fentanyl powder cases is rapidly increasing across the province and notably in this jurisdiction.

53 In Hamilton, I see fentanyl abuse regularly identified as underlying many of the offences committed in this jurisdiction; possession of fentanyl charges have increased in plea court and fentanyl users are the new norm in drug treatment court. Sadly, our detention centre is notorious for drug overdoses, including fentanyl. [3]

[21] Although the dangers of powdered fentanyl are now well-known, in R. v. Disher the Ontario Court of Appeal recently stated that “[t]he caselaw on sentences for trafficking in fentanyl is still developing”. [4] The Court of Appeal cited its decision in R. v. Loor, [5] and re-iterated that offenders who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences. Mr. Aiton-Poore was trafficking significant quantities of both fentanyl and methamphetamine.

[22] Another aggravating circumstance in Mr. Aiton-Poore’s case is what Agro J. described in R. v. Ribble as “the dangerous combination of drugs and firearms and the deleterious effects that combination has on the functioning of Canadian society”. [6]

[23] In R. v. Wong, the Ontario Court of Appeal stated the following:

11. The courts have repeatedly emphasized that the toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community. The social ills, including associated criminal conduct, fueled by this combination is now well recognized.

12. These offences call out for an exemplary sentence to achieve the important sentencing goals of denunciation and deterrence. Indeed, the firearms offences, standing alone, warranted a significant jail term. [7]

[24] Mr. Aiton-Poore was in possession of a prohibited firearm, a loaded handgun, which the police located under the driver’s seat of the vehicle he was in when they executed the search warrants. Additional firearms and ammunition were seized inside the home and the garage. Mr. Aiton-Poore’s case is a stark example of the toxic combination of drugs and guns which poses a threat to public safety. Firearms in the hands of drug traffickers pose potentially fatal risks not only to those engaged in the drug trade and their adversaries but to innocent citizens who cross their paths by happenstance.

[25] The proliferation of illicit drugs and firearms in our community is undeniable. The principles of deterrence and denunciation are the primary sentencing objectives when determining an appropriate sentence for drug traffickers who are in possession of firearms as tools of their trade.

Mitigating Circumstances:

[26] However, in R. v. Disher, the Ontario Court of Appeal stressed that a sentencing judge commits an error if he or she fails to consider an offender’s rehabilitative potential. Mr. Aiton-Poore entered guilty pleas which demonstrates his acceptance of responsibility and remorse for the offences he committed. When he addressed me directly at the conclusion of the sentencing hearing, he expressed his genuine remorse for having committed these offences. He vowed to leave his criminal lifestyle behind and change his life.

[27] Mr. Aiton-Poore’s guilty pleas spared valuable judicial resources at a time when the justice system is struggling to meet the demands of a backlog of cases caused by the COVID-19 interruption of trial proceedings. Trials for drug and gun charges require multiple days, and when they involve challenges to search warrants the scheduling of those days are typically staggered to permit rulings to be made at various stages. The guilty pleas in this case also eliminated the uncertainties inherent in the trial process.

[28] Mr. Aiton-Poore is a very young man. He has no prior criminal record. The Crown conceded that, prior to the investigation that resulted in his arrest on January 22, 2020, Mr. Aiton-Poore was unknown to the police. He has a supportive family which is a factor that tends to increase his prospects of rehabilitation.

[29] While serving his PSC, Mr. Aiton-Poore participated in programming and took a math course to use his time productively. These steps he took on his own initiative provide some evidence that he is committed to changing his life. Some may view them as small steps, but they are steps in the right direction.

THE SENTENCE

[30] Mr. Aiton-Poore, a 23 year old first offender, is being sentenced to a significant period of incarceration in the penitentiary. All counsel agreed that the global 12-year jail sentence is a just sanction that gives due consideration to the mitigating and aggravating circumstances, and the principles of restraint and totality.

[31] In R. v. Disher, the Ontario Court of Appeal stated that the caselaw on sentences for trafficking in fentanyl is still developing. Helpful reviews of fentanyl sentencing caselaw are contained in paragraphs 17 and 18 of R. v. Piri [8] (Kelly J.) and in paragraphs 30 to 39 of R. v. Fuller [9] (Latimer J.). As Latimer J. notes in R. v. Fuller, a review of this caselaw clearly shows that “fentanyl has surpassed heroin in the judicial hierarchy of dangerous, deadly narcotics”. [10]

[32] Having reviewed the summaries of the caselaw set out in Piri and Fuller, and having considered the aggravating and mitigating circumstances in Mr. Aiton-Poore’s case, including possession of firearms as a tool of his trade, [11] I find that the global 12 year jail sentence proposed is appropriate.

CROWN AND DEFENCE DISAGREE ON COVID-19 PSC

[33] Mr. Aiton-Poore served 54 days of PSC between January 22, 2020 and March 15, 2020. He served a further 330 days of PSC between March 16, 2020 and February 8, 2021. He sought 1.5:1 credit for each of the PSC days served during the first period and 2:1 credit for each of the PSC days served during the second period (the COVID-19 period).

[34] Mr. Aiton-Poore’s request for enhanced credit was based on the harsh conditions of PSC experienced during COVID-19. Crown counsel opposed any enhanced credit for PSC served during the pandemic, claiming that the joint submission (ie. the reduced sentence jointly proposed) already accounted for this circumstance.

[35] I have explained in these reasons why the joint submission for a global sentence of 12 years jail ceased to be a joint submission when Defence counsel asked for enhanced PSC credit and the Crown opposed that request. There was no longer an agreement regarding the balance of the sentence to be served. At that point, the Crown was seeking a sentence that was 5.5 months longer than Mr. Aiton-Poore hoped it would be.

JOINT SUBMISSIONS- “A SUBSET OF RESOLUTION DISCUSSIONS”

[36] Joint submissions “are a subset of resolution discussions”. [12] The Crown and Defence counsel “agree to recommend a particular sentence to the judge, in exchange for the accused entering a plea of guilty”. [13] A sentencing judge must not reject a joint submission unless he or she finds that the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

[37] As the Supreme Court of Canada stated in R. v. Anthony-Cook, rejection of a joint submission “denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down [emphasis added]”. [14] The Court explained that this is “an undeniably high threshold”. [15]

[38] The high threshold for departing from joint submissions is appropriate because Crown and Defence counsel “are well placed to arrive at a joint submission that reflects the interests of both the public and the accused”. [16] Moldaver J. noted that “[a]s a rule, [counsel] will be highly knowledgeable about the circumstances of the offender and the offence and the strengths and weaknesses of their respective positions”. [17]

[39] The personal circumstances of the offender include collateral consequences from harsh conditions of PSC owing to the COVID-19 pandemic that could justify a reduction in the sentence. Wendl J.’s decision in R. v. Cunningham pre-dated the COVID-19 pandemic but his words are apposite: “In circumstances of a joint position, the Crown and Defense should take into account harsh pre-sentence custody conditions when coming to their joint resolution”. [18]

[40] I recognize that taking harsh conditions of PSC into account during pre-trial negotiations is a challenging task. As I will explain, sentencing judges face the same challenging task when the issue is litigated. However, when counsel address harsh PSC conditions in their negotiations and arrive at a joint resolution that has “built in” a reduction for those harsh conditions, it achieves a dual purpose.

[41] First, certainty or near certainty, one of the principle benefits of joint submissions, is achieved for both the Crown and the offender. The Crown is assured that the sentence it negotiated to reflect the interests of the public is imposed. The offender is assured that, provided the high threshold for rejection is not met, the sentence he agreed to accept to plead guilty is imposed.

[42] COVID-19 PSC credit has been treated differently by different judges, depending on how they view the issue. An offender may prefer to negotiate a joint submission without consideration of harsh conditions of COVID-19 PSC and leave that issue to the discretion of the sentencing judge, hoping to win the judicial idiosyncrasy lottery. However, this approach fails to honour the spirit and purpose of joint submissions.

[43] Harsh conditions of PSC, and the credit to be given for this PSC, are issues that have gained prominence in sentencing hearings due to the COVID-19 pandemic, and understandably so. It is unnecessary to review here the growing list of authorities on the topic. One of the consequences of this trend is the increased use of judicial resources to rule on these issues.

[44] The hardships associated with being incarcerated during COVID-19 are now well-known. They were summarized by Pringle J. in R. v. Marsan:

40 The ongoing pandemic has proven to be an indiscriminate killer. It takes the elderly, the young, the weak, the strong. There is no proven available protection, other than isolation, social distancing, wearing masks, and sanitization: see R. v. Morgan, 2020 ONCA 279; Affidavit of Dr. Aaron Orkin dated May 20, 2020.

41 Like the rest of the world, the inside of a jail can be safe one week and the subject of an outbreak in the next. There is no "Information Note" that can predict the future of this pandemic. Much has been written, and compellingly so, about the potential impact of COVID-19 on incarcerated persons: see R. v. Hearns, 2020 ONSC 2365; R. v. M.W., 2020 ONSC 3513; R. v. D.D., 2020 ONCJ 218. I agree with these cases, and wholeheartedly adopt their conclusions.

42 For me, the relevance of COVID-19 to Mr. Marsan's incarceration comes down to this. While in jail during the pandemic, Mr. Marsan will not be free to isolate, social distance, and sanitize in any manner he wishes. He cannot choose where he lives, or who he lives with, or how many people he lives with. He cannot step outside to escape re-circulated air when he wants to.

43 Neither can his family and friends visit him whenever they choose. Even if the jail hypothetically (and improbably) put no limitations on visits, his family's movements about society remain limited by public health mandates.

44 There will be a physical risk of contracting this disease, while in a jail populated with strangers and where inmates and staff come and go. There will be an increased restriction of liberties, such as visits, programs, and fresh air. There will be the psychological impact resulting from that. There will be an increase in isolation, a consequence that many outside jail find difficult to cope with.

45 I am sentencing Mr. Marsan to incarceration during a singular worldwide crisis. I find the increased hardship in this fact to be a collateral consequence, relying squarely on Pomerance J.'s compelling reasons in R. v. Hearns, supra at paras. 17-24. To reflect this extraordinary, unusual hardship, I have reduced the 18-month sentence by an additional 4 months. [19]

[45] A joint submission is the culmination of Crown and Defence counsel balancing the aggravating and mitigating circumstances, the circumstances of the offence and the offender to arrive at the proposed resolution. Counsel make qualitative and quantitative assessments during pre-trial negotiations to arrive at a joint resolution. Just as other personal circumstances (ex. drug or alcohol addiction, difficult upbringing, mental health challenges etc.) are considered and weighed by counsel during this process, so too can the circumstances set out above pertaining to PSC during the pandemic.

[46] There is a corollary and meaningful benefit to counsel considering and resolving this issue as part of the joint submission process. Court time and judicial resources that would be used to litigate the issue, which are in short supply, are spared.

“JOINT SUBMISSIONS” THAT ARE NOT JOINT SUBMISSIONS

[47] It is incumbent on counsel to know the terms of the joint resolution, and to clearly articulate those terms to the Court. If counsel maintain throughout the sentencing hearing that they are making a joint submission, they are asking the Court to impose a specific sentence, the one that was negotiated. No more, no less.

[48] A joint submission means that counsel have considered all relevant factors, including harsh conditions of PSC, and have reached an agreement on the appropriate sentence to be imposed.

[49] There will of course be cases where, notwithstanding the best efforts of counsel, no agreement is reached on how, or if, COVID-19 PSC should reduce the ultimate sentence. In such cases, it simply means that counsel have not arrived at a joint submission to propose to the Court. If the offender decides to plead guilty in these circumstances, counsel should not characterize it as a joint submission.

[50] Without full agreement, there is no joint submission. I reproduce here footnotes 1 and 3 in R. v. Anthony-Cook:

1 These reasons do not address sentencing flowing from plea agreements in which the parties are not in full agreement as to the appropriate sentence.

3 As indicated, these reasons do not address sentencing flowing from plea agreements in which the parties are not in full agreement as to the appropriate sentence. In other instances, the Crown and accused may negotiate sentencing positions that reflect partial agreement or an agreed upon range. Such arrangements may involve a comparable quid pro quo. In such circumstances, it may be that similar considerations would apply where a trial judge is, for instance, inclined to exceed the ceiling proposed by the Crown, but we leave that question for another day.

[51] Often, counsel will advise the Court that they have a “joint submission”, knowing that they have reached only a partial agreement. This is an error in language. If the parties have agreed on some things but not others, they should make that clear to the Court.

[52] When counsel are in full agreement as to the appropriate sentence and a joint submission is made, the sentencing judge is required to “approach the joint submission on an “as-is” basis”. [20] When counsel make a joint submission, it means that the Crown and the Defence have achieved the “as is”. [21] The Crown, the Defence, and the Court should expect that there will be no attempts to stray from the resolution that the parties have reached.

[53] An offender who asks for a reduction of his sentence at the joint submission sentencing hearing is resiling from the joint submission. The offender can no longer expect the protection of the high threshold for rejection of a joint submission.

[54] These situations create uncertainty where the ultimate goal had been certainty. The Court is left wondering whether the parties had reached full agreement before the offender entered his guilty plea. Often, Crown and Defence counsel are unable to clearly articulate to the Court whether all the issues had actually been agreed upon, even though everyone to that point has called it a “joint submission”.

[55] Without clarity from counsel, judges waste time trying to determine whether they should treat what counsel has presented as a joint submission or not. For instance, when an offender asks for enhanced credit for COVID-19 PSC at a “joint submission” sentencing hearing, is there an obligation on the sentencing judge to advise the Crown that he or she is considering “undercutting” the joint submission by reducing the sentence to account for harsh conditions of PSC? A sentencing judge who is considering undercutting a joint submission must be mindful of the words of Moldaver J. in R. v. Anthony-Cook: ”the community's confidence in the administration of justice may suffer if an accused enjoys the benefits of a joint submission without having to serve the agreed-upon sentence”. [22]

[56] In my experience, what typically happens is a discussion on the court record between Crown and Defence counsel regarding their respective perceptions of the “joint submission”, all of which wastes valuable court resources that were meant to be spared by counsel having reached a joint submission prior to the offender entering his guilty plea. It also breaches the privilege that attaches to pre-trial negotiations. In my view, this practice must stop.

[57] An offender who makes a request to stray from the joint resolution runs the risk that the Crown too will resile from the joint submission and seek a harsher sentence than the one contemplated by the joint position. The Court may indeed impose a harsher sanction.

[58] Another potential consequence is that the Court may be asked to strike the accused’s guilty plea. If the guilty plea is struck, the resources that have been invested in the case to that point have been wasted, including judicial resources. Seeds of mistrust are sown in the relationship between the Crown and the Defence, and uncertainty abounds as the case remains on court dockets, often languishing as counsel try to decide what to do next.

[59] This is not what the Supreme Court of Canada contemplated in Anthony-Cook when it spoke of “the importance of promoting certainty in resolution discussions”.

REDUCTION OF THE SENTENCE FOR COVID-19 PSC

My Decision to Consider a Reduction of Mr. Aiton-Poore’s Sentence:

[60] When Defence counsel sought enhanced credit for Mr. Aiton-Poore’s COVID-19 PSC, Crown counsel (Federal and Provincial) did not resile from their position that a global 12-year jail sentence was appropriate. However, the Crown asserted that there should be no enhanced credit beyond 1:5:1 because harsh PSC during the pandemic was one of the factors that informed the joint resolution (ie. it was part of the agreement).

[61] It should be clear from my reasons that I am in complete agreement with the approach propounded by the Crown. I intend to follow this approach in future cases where counsel make a joint submission on sentence, and all counsel maintain during the sentencing hearing that they are making a joint submission. In my view, it is the only approach that complies with the law regarding joint submissions. COVID-19 has changed many things. It has not changed the law of joint submissions.

[62] In Mr. Aiton-Poore’s case, counsel conducted extensive pre-trial negotiations to arrive at the certainty of a joint submission. In such circumstances, none of the participants should arrive at Court on the day of the guilty plea expecting anything but a joint submission to be made, including the offender.

[63] In this case, I have decided to consider Mr. Aiton-Poore’s request for a reduction of his sentence to account for COVID-19. I have done so for the following reasons.

[64] In this jurisdiction, a view shared by many is that the Defence can negotiate a joint submission yet seek a reduction of the negotiated sentence on the date of the plea due to the pandemic. This is not meant to be a critique of Defence counsel. In fact, it is anything but that. COVID-19 has revolutionized the way we deliver justice in criminal courts. Everyone has struggled to adapt and keep pace with the ever fluid state of criminal law.

[65] Defence counsel bear the significant burden of explaining these changes to their incarcerated clients. Limited access to inmates during COVID-19 makes this task more challenging. Defence counsel often tell us in plea courts that they have been unable to communicate the Crown’s position to their client because of this limitation on access. Communication of the Crown position to the inmate, and the negotiations that follow between Crown and Defence, all take place on the steps of the courthouse, which in these times is a break-out room on Zoom. Defence counsel are not to be criticized for this occurrence, but rather applauded for fighting a lion with one hand tied behind their back.

[66] Notwithstanding these limitations, we must all strive for clarity. When there is full agreement, counsel must clearly state that to the Court. When there is not full agreement, but rather partial agreement, counsel must clearly state that to the Court.

[67] Those who live in glass houses should not throw stones. To date, judges have not taken a consistent approach to COVID-19 PSC. It is understandable that an inmate with anecdotal evidence that a fellow inmate has received 2:1 for COVID-19 PSC would ask his lawyer, who has negotiated a joint submission on his behalf, to also seek 2:1 credit.

[68] In my view, a culture change is required. A clear and consistent approach should be followed. When counsel have negotiated a joint submission, COVID-19 PSC has been factored into the agreement reached. This clear and consistent message must reach the inmates who are the ones that have been most affected by our lack of clarity.

[69] No one can fault Mr. Aiton-Poore for being uncertain whether the impact of COVID-19 on his PSC was one of the factors that counsel specifically considered in arriving at the joint resolution. In order to ensure that Mr. Aiton-Poore was treated fairly, I considered his request for a sentence reduction.

Morgan and Hearns

[70] Defence counsel often make the submission that their client has heard that other inmates are routinely receiving enhanced credit, for instance 2:1, for PSC served during the pandemic. This does not accurately reflect what is happening in this jurisdiction and others.

[71] Judges too are grappling with how to treat harsh conditions of COVID-19 PSC. Should it result in a mathematical enhancement of credit for PSC served during the pandemic, and if so, how much? Should it be treated as a collateral consequence that warrants a reduction in the sentence to be imposed in order to make the sentence fit? Does any enhancement in credit for PSC or reduction in the sentence require that the offender provide evidence of the impact of the harsh conditions on the offender himself as in R. v. Duncan [23], or is COVID-19 a special category of harsh conditions that does not require evidence of the impact on the particular offender?

[72] Mr. Aiton-Poore’s counsel characterized the issue as a request for enhanced credit (2:1) for all PSC served from March 16, 2020 to the date of sentencing. In my view, the issue is more properly characterized as collateral consequences for sentencing purposes. [24]

[73] In R. v. Morgan, the Ontario Court of Appeal recognized that the impacts of the COVID-19 pandemic on those serving custodial sentences can amount to collateral consequences. A sentence may have a more significant impact on the offender because of these collateral consequences.

[74] It is important to understand the context of Morgan. It is not a PSC case. Mr. Morgan had been sentenced. He appealed his sentence. On his appeal, he did not dispute that the sentence he had received was a fit one at the time that it was imposed. Instead, he argued that the COVID-19 pandemic served to render the sentence unfit because of the factors that made his incarceration harsher and more dangerous. Mr. Morgan sought a reduction of his sentence.

[75] The Court in Morgan dealt with his request by engaging the principles set out in R. v. Suter:

9 In our view, the appellant's submissions fall into the category of collateral consequences for sentencing purposes. As Moldaver J. noted in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48:

The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances.

10 However, Moldaver J. went on to make a further observation in Suter that has direct application to the case here. He said, at para. 56:

I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case - collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.

[76] In Morgan, the Court of Appeal found that the trial judge had imposed a lenient sentence. Therefore, any further reduction would result in an unfit sentence that would be disproportionate to the gravity of the offence. The Court noted:

12 That result does not mean that there is no potential remedy for the appellant respecting the impacts arising from the COVID-19 pandemic. We expect that the Ontario Parole Board will take into account those impacts in deciding whether the appellant should be granted parole. If the Parole Board fails to do so, the appellant has other remedies available to him to redress that failure.

[77] Therefore, the issue in Morgan was whether the remaining sentence should be reduced due to the impact of COVID-19 on Mr. Morgan’s conditions of incarceration.

[78] Pomerance J.’s decision in R. v. Hearns [25] pre-dates the release of Morgan. In Hearns, the issue was the appropriate sentence to be imposed on an offender who had entered guilty pleas and who had served substantial PSC. Counsel jointly submitted that a time served sentence plus probation was appropriate. Pomerance J. “concluded that a sentence of time served plus probation [was] appropriate having regard to several factors, including the global COVID-19 pandemic and the increased risk of infection faced by inmates in Canadian jails”. [26]

[79] In arriving at this conclusion, Pomerance J. did not give enhanced credit for any of the PSC:

22 First, I am not suggesting that the offender receive more than the statutory credit for pre-sentence custody. The accused is entitled to credit on a 1.5 to 1 basis and that is what he will receive. I am not at liberty to assign credit beyond that prescribed in the Code. The question is not whether, looking backwards, the offender is entitled to more credit. The question is whether, looking forward, the pandemic warrants reduction of the sentence yet to be served. The question is whether the sentence already served, calculated with 1.5 to 1 credit, is a sufficient penalty. Given the pandemic, it may be that a sentence of shorter duration is not only tolerable, but appropriate, in the interests of personal and public safety. [27]

[80] Therefore, in Hearns, Pomerance J. assessed the fitness of a joint submission for time served, and was not considering a request for enhanced PSC credit:

24 ... During these challenging times, people are being asked to call upon their sense of community, decency and humanity. That humanity must obviously extend to all individuals, including those incarcerated due to criminal charges or convictions. There will be cases where release from custody is not a viable option. There must be consideration of the safety of the community and the need for a proportionate sentence. Where, however, a period of time served can address sentencing principles, even imperfectly, our sense of humanity tells us that release from prison is a fit and appropriate response. [28]

[81] Sentencing judges have relied on Morgan and Hearns to reduce the sentence, provided that the reduction does not result in a sentence that is disproportionate to the gravity of the offence. The Court considers the impact of COVID-19 on inmates, and asks itself whether a shorter jail sentence, or no jail sentence at all, can adequately address the principles of sentencing, the fundamental principle being proportionality.

[82] With respect, I am not in complete agreement with Pomerance J.’s statement in Hearns that “the question is not whether, looking backwards, the offender is entitled to more credit”. I agree that an offender is entitled to only 1.5:1 credit for PSC. However, determining whether a sentence can be reduced, and still be proportionate, necessarily involves an assessment of the collateral consequences that the offender has already experienced. Decency and humanity demand nothing less.

[83] An offender who has served PSC during the COVID-19 pandemic has been subjected to a harsher form of detention. The reduction in sentence addresses both the impact on the offender from having served this harsher PSC and the hardship that he will experience while serving the balance of his sentence as COVID-19 continues to impact inmates housed in custodial facilities. However, there are limits to a sentencing judge’s discretion. We do not know how long the COVID-19 crisis will continue to impact inmates.

[84] Mr. Aiton-Poore is being sentenced to a lengthy penitentiary sentence. Determining whether the sentence should be reduced focuses largely on the impact the pandemic has had on his PSC. To approach it otherwise would introduce speculation into the sentencing process. The expectation is that the impacts of the COVID-19 crisis on Mr. Aiton-Poore going forward will be addressed by the jails, and at some point, by the Ontario Parole Board.

[85] Addressing the impact of harsh COVID-19 PSC at the sentencing stage should not, and some suggest cannot, be reduced to a mathematical discount. This is nothing new for sentencing judges. As Clarke J. observed in R. v. Holmgren:

Sentencing is an art, not a science. An enterprise of the heart and mind, not the impersonal product of a computer. [29]

[86] Mr. Aiton-Poore did not lead evidence at the sentencing hearing regarding any specific impact on him from serving COVID-19 PSC. In my view, given the state of knowledge regarding COVID-19, evidence is not required for a sentencing judge to consider a reduction in sentence. As the Court of Appeal stated in Morgan:

…it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission. [30]

[87] An offender may wish to lead evidence that, because of a unique or personal vulnerability, a greater reduction in sentence is warranted. However, a sentencing judge is not precluded from considering a reduction when no such evidence is led.

[88] I find that reducing Mr. Aiton-Poore’s sentence by 3 months to address the impacts on his incarceration arising from the COVID-19 pandemic does not result in a sentence that is disproportionate to the gravity of the offence.

[89] Mr. Aiton-Poore has served 384 days of PSC, the equivalent of 576 days (1 year and 7 months) when credited at 1.5:1. The PSC will be attributed to Count 1 on Information 20-448 (Possession of fentanyl for the purpose of trafficking). The sentence reduction of 3 months will apply to this count.

[90] I impose the following sentence on Mr. Aiton-Poore:

Information No. 20-448: (1) Count 1: Possession of fentanyl for the purpose of trafficking: s. 5(2) CDSA: 8 years and 9 months jail less PSC of 1 year and 7 months leaving 7 years and 2 months jail to serve; (2) Count 4: Possession of methamphetamine for the purpose of trafficking: s. 5(2) CDSA: 3 years jail concurrent; (3) Count 5: Possession of proceeds of crime (Canadian currency) over $5,000.00: s. 355 (a) Criminal Code: 1 year jail concurrent;

Information No. 20-447: (4) Counts 4, 6, and 7: Possession of a firearm (Tradition Pursuit LT .50 Cal Rifle) without being the holder of a licence to possess it: s. 91(3) Criminal Code; Possession of a firearm (HR Model 922 Revolver) without being the holder of a licence to possess it: s. 91(3) Criminal Code; and Possession of a loaded prohibited or restricted firearm without being the holder of an authorization or licence to possess it: s. 95(2) Criminal Code: 3 years jail on each count to be served concurrently to each other but consecutive to the sentences imposed on Information No. 20-448.

[91] I make the following ancillary orders: (a) a DNA databank order; (b) a s. 109 Criminal Code weapons prohibition order for life; (c) the two consent forfeiture orders submitted by the Crown.

[92] One final observation. I wish to make it clear that nothing I have said in these reasons is meant to be a criticism of counsel in Mr. Aiton-Poore’s case. Each of the lawyers in this case diligently applied themselves to the numerous and complex issues that are commonly present in cases involving significant quantities of drugs and firearms. Their diligence resulted in the resolution of this case, and the resulting benefit to the administration of justice. However, I felt that it was important to address the issues I have, due to the frequency with which they arise.

Released: February 11th, 2021 Signed: Justice J.P.P. Fiorucci

[1] On February 8, 2021, when I sentenced Mr. Aiton-Poore, I indicated that written reasons would follow. These are my written reasons.

[2] R. v. Johnson, 2012 ONCA 339, at para. 18.

[3] R. v. Ribble, 2019 ONCJ 640, at paras. 52-53.

[4] R. v. Disher, 2020 ONCA 710, at para. 30.

[5] R. v. Loor, 2017 ONCA 696.

[6] R. v. Ribble, supra, at para. 73.

[7] R. v. Wong, 2012 ONCA 767, at paras. 11-12.

[8] R. v. Piri, 2020 ONSC 920.

[9] R. v. Fuller, 2019 ONCJ 643.

[10] Ibid, at para. 40.

[11] R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 82.

[12] R. v. Anthony-Cook, 2016 SCC 43, at para. 2.

[13] Ibid, at para. 2.

[14] Ibid, at para. 34.

[15] Ibid, at para. 34.

[16] Ibid, at para. 44.

[17] Ibid, at para. 44.

[18] R. v. Cunningham, 2019 ONCJ 559, at para. 18.

[19] R. v. Marsan, 2020 ONCJ 638, at paras. 40-44.

[20] R. v. Anthony-Cook, supra, at para. 51.

[21] This includes not only the length of the jail sentence that the parties are asking the judge to impose, but also any ancillary orders (DNA, probation, weapons prohibition, etc.).

[22] R. v. Anthony-Cook, supra, at para. 52.

[23] R. v. Duncan, 2016 ONCA 754.

[24] R. v. Morgan, 2020 ONCA 279.

[25] R. v. Hearns, 2020 ONSC 2365.

[26] Ibid, at para. 2.

[27] Ibid, at para. 22.

[28] Ibid, at para. 24.

[29] R. v. Holmgren, [1995] O.J. No. 286 (Ont. Gen. Div.), at para. 56.

[30] R. v. Morgan, supra, at para. 8.