Court File and Parties

Court File No.: Peel BRAMPTON 3111 998 20 8394 Date: 2021 02 12

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Ridwan Dalmar

Before: Justice K.L. McLeod

Heard on: December 9, 2020 and January 11, 2021 Reasons for Judgment released on: February 12, 2021

Counsel: Ms. Cindy Nadler, counsel for the Crown Mr. Gary Grill, counsel for the accused Ridwan Dalmar

K.L. McLeod J.:

Reasons for Judgment

[1] Ridwan Dalmar is here for sentencing on two counts of possession of a loaded prohibited firearm, one count of possession of a prohibited device (an extended ammunition clip) and finally, one count of careless discharge of a firearm.

[2] For these offences the Crown, Ms. Nadler, seeks a sentence in the five to six-year imprisonment range; the Defence, Mr. Grill, a sentence of two years.

[3] Ultimately there are three issues in this sentencing:

Issue No. 1 What is a fit sentence for this young man considering: (a) the circumstances of his offending; (b) the background of this offender and examining who he is and his explanation for these offences, and (c) the prevailing legal principles.

Issue No. 2 How much credit should Mr. Dalmar receive for pretrial custody both in terms of statutory/ Summers credit and, additionally, credit for the “hardship” of his confinement at Maplehurst (Duncan credit)?

Issue No. 3 Can I consider the hardship of serving a sentence going forward during the Pandemic as "collateral consequences" to reduce the total sentence Mr. Dalmar is ordered to serve?

Issue No. 1 – What is a fit sentence for Mr. Dalmar?

(a) Circumstances of the offence

[4] Both Ridwan and his brother, Zakariya, were arrested on July 24, 2020. They had gone to purchase pain-killing illegal narcotics (hydrocodone) for Zakariya for an injury he suffered some years previously when he was run over accidently by a police car.

[5] Unbeknownst to the two brothers, the Central Robbery Bureau of Peel Regional Police were investigating a series of bank and pharmacy robberies. They had installed a tracking device in the car which had been at the scene of the robberies.

[6] The tracking device led the police to an underground parking lot shortly after a drug store robbery had been called in. The tracked car was seen parked next to the car in which the Dalmar brothers were; no doubt to facilitate the purchase of the illegal drugs. TAC officers were also on the scene at the top of the ramp exiting the garage. The tracked car tried to leave, the robbery suspects became aware of the takedown and ran from the car leaving it in drive. The car rolled up the driveway, the TAC officers opened fire.

[7] The Dalmar brothers were leaving the garage behind the suspect car. As the “robbers” left the car, a shot was fired from the passenger side of the Dalmar car.

[8] The message had gone out that the Dalmar brothers may be involved and police attention was turned to them. The takedown of the Dalmar brothers was shown on videotape. Both were ordered out of the car. Zakariya was driving and Ridwan the passenger.

[9] In Ridwan's satchel that he had on him when arrested, officers found an overcapacity magazine of bullets.

[10] In the Dalmar car there were two guns: a loaded Taurus semiautomatic 9 mm gun in the glovebox, one round was in the chamber, seven were in the magazine, and under the passenger seat of the car there was a loaded Glock semiautomatic 9 mm handgun with one empty round in the chamber and 10 rounds in the magazine.

[11] The agreed statement of facts explained that the empty round from the Glock was as a result of the shot fired as the robbery suspects ran down the ramp back into the parking lot. Ridwan had apparently tried to hide the Glock under the seat and accidentally discharged the firearm. It appears it grazed the face of one of the robbers who was eventually arrested. That defendant would not provide any information on being accidentally shot, but there was blood at the scene, and his sweatshirt appears to have a bullet hole in the jaw area. He also has scarring on his face.

[12] The takedown, seen on video, was violent and revealed the danger the police believed the robbers, not the Dalmar brothers, to be.

[13] Ridwan was told to remain on the ground, however he tried to sit up and received a swift kick from one of the officers.

[14] Zakariya disavowed any knowledge of the weapons and ultimately pleaded guilty to possession of stolen property - the drugs.

[15] I will now turn to:

(b) The background of this offender: Who is Mr. Dalmar and why did he commit these offences?

[16] Mr. Dalmar is 20 years old. He has no criminal record.

[17] His parents are Somalian, who fled that famine/war torn country for Kenya.

[18] This defendant was born there, and his family immigrated to Canada in 2003.

[19] He is one of eight children; he is the third youngest. Some of his family came to court for his sentencing.

[20] He spent some time back in Kenya for his schooling and thereafter returned to Canada to continue his high school at the Acacia school in Toronto.

[21] During the summer holidays while at high school he worked in numerous capacities: as part of a youth workers’ programme within the Toronto Community Housing Project to clean, paint and collect garbage, at Pearson collecting carts, and for two summers, at Best Buy.

[22] A letter filed as Exhibit 2c from the Director of Mr. Dalmar’s family mosque, speaks to him becoming a volunteer in summer programmes for kids. The letter also states that he worked in the kitchen during Ramadan season when the mosque provided food to community members when breaking their fast.

[23] Mr. Dalmar grew up in community housing in Etobicoke. The area in which he used to live is no stranger to crime.

[24] Mr. Grill advises that when Mr. Dalmar returned from Kenya he was robbed, pistol whipped and beaten. His sister accompanied him to the police station to report the crime.

[25] He apparently received short shrift from the police who suspected and told his sister, that he was likely a gang member and did not believe that he was unable to identify his assailants. From that incident, Mr. Grill submits, Mr. Dalmar started to lose faith in the justice system's ability to protect him.

[26] A pivotal episode in Mr. Dalmar's spiral into criminality occurred in 2019 when he was shot at. The detail, somewhat vague at best, was that he was blamed for an incident that occurred in his neighbourhood community, because he was associating with others from outside the community. Who blamed him for what was not articulated by Mr. Grill.

[27] Mr. Dalmar disappeared. According to Mr. Grill, Mr. Dalmar had called his family before disappearing and told his family that something had happened. He refused to say where he was going.

[28] After many months, apparently living in Ottawa, he was persuaded to return to his family and move with them to live outside of the area and outside the GTA, in which he had grown up.

[29] I am told that Mr. Dalmar had all of his possessions in the car in which he was apprehended. Included in those possessions were his weapons which he had for his protection: one which he kept in his home, the other on his person.

[30] Mr. Grill argues that Mr. Dalmar was a prosocial young man who only had a history of prosocial work before he made the decision that he had to run for his life. The veracity of his submission about fear of violence, Mr. Grill points out, is the number of young Somalian men within their Toronto Community Housing community being murdered in the last few years.

[31] In terms of support, Mr. Dalmar is fortunate: not only did numerous members of his family attend for his sentencing, a letter from his sister, who is the third in the sibling line and six years older than her brother, speaks to her commitment to him.

[32] She is married with a daughter and is presently attending university for her second masters; in social work. She says she worked with her brother from the age of 14 to expand his reading and writing skills.

[33] She has visited him in jail and says he has plans for the future which include attending university to study criminal justice just as she did in her undergraduate studies in criminal and social legal studies at UofT.

[34] She describes her brother as bright, intelligent and someone who is cognizant of the mistakes he has made and now understands that education is the way forward for him to help others.

[35] Mr. Dalmar is also supported by his former high school principal, who, according to Mr. Grill, tried to visit him at Maplehurst but was unable to see him due to the lockdowns that are a frequent part of life at that institution. There is, however, a letter from her (Exhibit 2a) which speaks of him as an advanced student who assisted in the creation of a close-knit environment within the school. He, apparently, would assist other students and stay after school to work with them to understand Math and English. To quote from her letter: "Ridwan is a very bright and smart young man and we know that he will do many great things in his life".

[36] At first blush this letter could be taken as coming from someone who is unaware of Mr. Dalmar's charges; but that appears not the case. The date of the letter is December 30th, 2020 and, given the account of her inability to visit her former student at the jail, clearly, she knew. Thus, this letter is of some moment.

[37] I will now turn to the steps Mr. Dalmar has taken to exhibit his comprehension of the error of his ways.

[38] After his arrest, despite being a youthful first offender charged in the middle of a Pandemic, Mr. Dalmar did not seek bail. He was apparently insistent that his brother, who was arrested with him, had no knowledge of the weapons.

[39] He pleaded guilty at an early opportunity. While he has been in custody for some six months; he was facing the charge of discharge firearm with intent. I am informed that he wanted to plead guilty at an early opportunity but could not, in law and fact, plead to the discharge firearm with intent count on the information. The charge of careless use of a firearm allowed for the guilty plea to take place.

[40] In his own words Mr. Dalmar accepted responsibility. He said he took full responsibility and accountability. He said he is very remorseful for putting people in harm’s way and apologized to his supportive family. He apologized and indicated: “whatever my sentence is, I have learned my lesson and will never be here again”.

[41] I will now turn to:

(c) The prevailing legal principles that apply to Mr. Dalmar

[42] Sentencing has many purposes: most fundamental of which is to protect society and to assist in persuading members of that society to have respect for the law and maintain a just and peaceful society by imposing just sanctions with one or more of the following objectives:

(a) To denounce in a public fashion the unlawful conduct and the resulting harm done to the community and victims,

(b) To deter the offender and other persons from committing offences,

(c) To separate offenders from society, where necessary,

(d) To assist in rehabilitating offenders,

(e) To provide reparations for harm done to victims and the community, and

(f) To promote a sense of responsibility in offenders and acknowledgement of the harm they have caused.

[43] Also, in section 718.2 of the Criminal Code of Canada, the principle of restraint is articulated: that is that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate”.

[44] In Mr. Dalmar's case, because of the seriousness of his crimes, both counsel agree a community sentence is not appropriate.

[45] Sentencing is, however, an individualized process; it is a fundamental principle of sentencing that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[46] While these gun offences cannot be described as anything but grave or serious, it is the degree of the responsibility of the offender that much of Mr. Grill's submissions were focussed. What this principle ensures is that the moral blameworthiness of an offender must be assessed to ensure that any just sanction is limited to the requirement of justice for Mr. Dalmar. There is a balancing that proportionality requires.

[47] So, firstly, I will deal with the gravity of the offence.

[48] There is much narrative in the caselaw about the danger of firearms especially in urban centres, articulated most recently in R. v. McNichols, 2020 ONSC 6000.

[49] However, there can be no better example of these dangers than Mr. Dalmar’s case. The facts, in of themselves, are an example of that: Mr. Dalmar did not intend to discharge the firearm, he was just trying to hide it from the police and the discharge was accidental, but its discharge hit someone, fortunately it was a mere grazing, but it was in the facial area and could so easily have been fatal for that person and indeed Mr. Dalmar himself, given the discharge was in the midst of a dynamic police takedown.

[50] Generally, sentences for the possession of a loaded prohibited firearm begin in the penitentiary range even for a first offender.

[51] Why is this: to quote Justice Molloy in R. v. Ferrigon:

Guns are dangerous. Handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous. A person who loads a handgun with bullets and then carries that handgun, concealed on his person, into a public place is by definition a dangerous person. Handguns are used to shoot people. A person who carries a loaded handgun in public has demonstrated his willingness to shoot another human being with it. Otherwise there would be no need to have loaded it. That person is dangerous. He is dangerous to those with whom he associates; he is dangerous to the police and other law enforcement personnel; he is dangerous to the members of his community; he is dangerous to innocent bystanders, including children, who may be killed or maimed by stray bullets. And equally importantly, he is dangerous to a way of life that is treasured in Canada and to which all residents of Toronto are equally entitled - a way of life that respects the rule of law to ensure the peace and safety of those who live here.

[52] Because this observation is one that is held by all appellate courts, the principles of general deterrence and denunciation are prime sentencing objectives for gun offences and require a significant sentence. However, within this category there is a range of gravity: this is articulated best by Justice Doherty in R. v. Nur, 2013 ONCA 677:

At one end of the spectrum stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade…

By any reasonable measure this person is engaged in truly criminal conduct and poses a real and immediate danger to the public.

There is no doubt that the vast majority of persons charged under s. 95 fall at the true crime end of the spectrum.

[53] Mr. Nur was just that type of appellant: his conduct posed an immediate and serious risk to the public. Mr. Nur, who was 19, was near a community centre; police arrived for a reason unrelated to Mr. Nur, but he ran throwing away a loaded operable 22 semiautomatic handgun equipped with an oversized ammunition clip, 23 bullets were in the clip: one in chamber. The gun could fire 24 rounds in 3.5 seconds.

[54] Finally, to quote Justice Doherty’s conclusion:

Nor do my reasons have any significant impact on the determination of the appropriate sentence for those s. 95 offences at what I have described as the true crime end of the s. 95 spectrum. Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation. Thus, as outlined earlier, and regardless of the three-year minimum penalty, this appellant, despite the mitigating factors, could well have received a sentence of three years.

[55] Both the Court of Appeal and the Supreme Court of Canada upheld the sentence imposed on this 19-year-old offender who had pleaded guilty.

[56] Having reviewed these cases, I find that Mr. Dalmar cannot be distinguished, as Mr. Grill suggests he should be, from the true crime end of the spectrum. In fact, it was the equivalent of true crime to the value of two plus, as he had two guns fully loaded and an extended magazine and was so careless in the handling of it that it discharged.

[57] It is, however, the moral blameworthiness of the offender that is the variable in most cases and this one is no different and I must balance additional principles of sentencing with respect to Mr. Dalmar.

[58] Mr. Dalmar is a very youthful adult first offender. The Court of Appeal of this Province has repeatedly stated that one of the primary objectives in sentencing of a youthful first offender are individual deterrence and rehabilitation. Custodial sentences should only be imposed where the gravity of the offence dictates that no other sentence is appropriate. Mr. Dalmar’s offence falls into that category.

[59] Having said that, it is also a principle of sentencing that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purposes of general deterrence. He must not receive a sentence that crushes the will to improve and rehabilitate himself.

[60] Sentencing of an offender must also include an assessment of the social context in which an offence is committed. The Supreme Court, through the late Justice Cory in R. v. R.D.S., 1997 SCC 324, gave us this guidance:

It is axiomatic that all cases litigated before judges are, to a greater or lesser degree, complex. There is more to a case than who did what to whom, and the questions of fact and law to be determined in any given case do not arise in a vacuum. Rather, they are the consequence of numerous factors, influenced by the innumerable forces which impact on them in a particular context. Judges, acting as finders of fact, must inquire into those forces. In short, they must be aware of the context in which the alleged crime occurred.

Judicial inquiry into the factual, social and psychological context within which litigation arises is not unusual. Rather, a conscious, contextual inquiry has become an accepted step towards judicial impartiality.

[61] While R.D.S. was a decision on reasonable apprehension of bias, the same can be said for sentencing. How can an estimation of the true moral responsibility of an offender be measured without reference to that offender’s social context? If sentencing is really an individual process: every case must be driven by the facts.

[62] The facts of the case and of the background and perceptions of the offender serve as a narrative as to why the offender is in the place he or she is; it is not an excuse, but it is our obligation to ensure we, as Judges, know this about the person we are sentencing.

[63] Judges are not gifted with an experiential understanding of how all societies function or don’t – as the case may be. Judges bring to sentencing hearings the obligation to listen, to inquire and to follow the law. As a judge who has worked in Peel my entire judicial career, I bring an understanding and recognition of the diversity of this community. I also bring to this my own experiences of youth: what I know is that I cannot assume growing up in a small village outside London, England that I am somehow imbued with a true sense of what it is to grow up as a child of immigrant parents in a strange country with a different language, customs and issues, living in community housing. I have always expected counsel to assist me with the true background of their client as it would be arrogant of me to assume that my experience as a young person is similar to the offender before me and judge them in that light.

[64] To put this in the vernacular: I need to figure out why this person, Mr. Dalmar, ended up with two loaded firearms; one of which was discharged accidentally, and an extended magazine. Only then can I truly determine his moral responsibility for this offence.

[65] I believe it is my obligation to examine what are the factors that led Mr. Dalmar to the perception that he could only protect himself by carrying two loaded firearms.

[66] Firstly, he has grown up in a community that has seen more than a fair share of Somalian young men like him being murdered or shot by gunfire. As appalling as it is to say, the carrying of guns in certain areas by members of the population is commonplace and the fear of death by gunfire, as difficult it is for me with my background to conceive, is real for young men in that community. Indeed, the sheer number of the increased incidence of firearm offences and murders is detailed in the Affidavit filed by Ms. Nadler on behalf of the Crown. For example in Peel Region alone, the number of section 95 charges (possession of loaded restricted firearm) was, in 2014, 36. By December 13, in 2020, that number had risen to 154: this huge rise even though much of society had been shut down for many months due to the Pandemic.

[67] Secondly, Mr. Dalmar had, at a very impressionable age, believed that he could not seek the protection of the police even if totally innocent. Mr. Grill suggests that his fear and distrust of the reputed protection of the state is a result of the police reaction to his complaint. He also suggests that it is an example of how the experience of institutional racism can pervade the perception of a young man to the police. I am not able to conclude it was racism - institutional or otherwise, but I accept that to Mr. Dalmar, he did not have the luxury of believing that he could go the police for protection. He believed he had been failed before.

[68] Thirdly, Mr. Dalmar's fear of retaliation by elements in his society must have been real. He has a close family and he disappeared from them for a number of months because he feared for himself. According to Mr. Grill, he had to be persuaded to come back to the fold, only on the basis that he could move away from the area and be safe.

[69] This, of course, in the cold light of day may to most members of society who do not grow up with this baggage, be perceived as being an over-the-top, devoutly criminal and inexcusable reaction. It is. But it explains why this young man behaved the way he did. Yes, his thinking was distorted, yes, he committed a serious offence, but it poses the question: is he a "true criminal" /a thug/ a gang member who has not and will not learn the error of his ways? I think not. Rehabilitation is much more than a hope and prayer, more than a possibility. Mr. Dalmar has the smarts, the family support and the hard lessons of the criminal justice system to persuade him of the other road in life that he should take.

[70] Finally, in considering the appropriate sentence for this offender, I must look to other cases. Ms. Nadler provided a very thorough brief referring to a number of cases to assist me with the actual sentence, as well as the principles involved.

[71] All of these cases, when dealing with guns and dealing with a variety of offenders, young - not so young - previous offenders - first offenders, some of whom pleaded guilty, some who did not, received sentences in the 3-5-year range.

[72] While I do not intend to review the facts of all of the cases, Ms. Nadler’s brief more than suffices. I do intend to refer to the only decision provided which deals with two loaded guns.

[73] In R. v. Khiar, 2015 ONSC 5800 the defendant pleaded guilty to possession of 2 Smith and Wesson guns, a magazine for each, and, in total, 24 rounds of ammunition. The guns were not loaded; however, all the necessary accoutrements to load the guns were in one bag. Mr. Khiar had a previous record from 2005 and 2006 from which a weapons prohibition was still in effect at the time of this offence (2013). He had only pleaded guilty after the preliminary hearing. Like Mr. Dalmar, Mr. Khiar submitted he had bought the guns for protection: Justice J. McMahon did not accept that submission. He stated:

I cannot be satisfied on a balance of probability he simply bought two very high quality guns simply for the purpose of self defence. I find that does not fit with my common sense and life experience in dealing with these types of cases.

[74] Obviously, I have come to a somewhat different conclusion for Mr. Dalmar given the submissions I have received on the issue of self-protection.

[75] For these offences, Mr. Khiar received a sentence of 4.5 years.

[76] There are, of course, cases where lesser sentences have been imposed and I will refer to two relied upon by Mr. Grill.

[77] R. v. Hassan, 2017 ONSC 4570 is the high-water mark on the end of the scale in terms of leniency. In 2014, Mr. Hassan was found in possession of a prohibited firearm with its serial number defaced and six 9mm bullets. Unlike in Mr. Dalmar’s case, the gun was not loaded, therefore, Mr. Hassan was not convicted of a section 95(1) offence.

[78] In finding that Mr. Hassan should receive a conditional sentence, Justice Backhouse utilized the categorization from Nur and found that Mr. Hassan's crimes "are true crimes". She also stated the obvious: that the imposition of sentence is fact driven and then found that “there are exceptional aspects in this case not present in other cases.”

[79] Justice Backhouse referred extensively to the evidence of character and rehabilitation called by counsel and then stated:

What makes this case singular is not only Mr. Hassan's rehabilitation and the number of very experienced people who has concluded and are prepared to say that he is not a danger to the public and is very unlikely to reoffend. What distinguishes this case is that Mr. Hassan has been able to learn from his past experiences and act as a positive role model for at risk youth.

[80] Mr. Grill is not suggesting that Mr. Dalmar receive a conditional sentence, but what he is suggesting is that Mr. Dalmar receive an exceptionally lenient sentence. I concede that Mr. Dalmar has been unable to prove himself such as Mr. Hassan as the former has been in custody since he was charged. In this case the absence of such a pivotal ground for the exceptional sentence Mr. Hassan received is such a distinguishing factor that the case really does not assist me other than to show that unique circumstances can bring unique dispositions, despite the appellate recommended range of sentence. However, to state the obvious, Mr. Dalmar's case has so many more aggravating features than did Mr. Hassan’s.

[81] Mr. Grill also referred me R. v. Mingo, 2016 ONCJ 556: Mr. Mingo received a sentence of two years less a day plus three years probation. Mr. Mingo was at a home with a number of people when a potential home invasion was reported to the police. Upon arrest Mr. Mingo, who was 18, was found with a .357 calibre gun with six rounds of ammunition in the cylinder. He said he had the gun for protection because he has lost friends through gun violence. Mr. Mingo had been on bail for 16 months and while not a stellar student; had managed to stay out of trouble.

[82] Obviously, Mr. Dalmar’s case is more aggravating because he had two fully loaded guns, the extra ammunition and was also found guilty of the careless discharge. However, Mr. Mingo’s case is an example where a reformatory sentence was found to be appropriate and available for a loaded firearm, where the conditions are ripe.

[83] In summary, therefore, there are numerous aggravating circumstances to this offence which have been outlined in this judgment: the number of guns, the fact that they were loaded, the danger of the discharge, the circumstances of how Mr. Dalmar was arrested: - just after buying illegal drugs and finally the location of the offence - a public underground parking lot, where cars and innocent people without warning can leave and arrive.

[84] There are, of course, mitigating factors: the age of Mr. Dalmar, his lack of record, his very early guilty plea, the strength of his loyalty to his brother who could have been prosecuted alongside him for these offences if Mr. Dalmar had not stepped up with the explanation of what had occurred. Mr. Dalmar has support in the community and ambition to assist his community. His remorse is profound and obviously there is a real prospect of a prosocial life going forward.

[85] While not a mitigating factor, I do find that the issues I have referred to in the “social context” part of this judgment lead me to be able to conclude that he is not a true criminal; that he was hugely mistaken in finding the solution he did for his thoughts; i.e. , to need to arm himself to protect himself. Understanding why he did this, helps me to find a sentence which reflects not only deterrence and denunciation, but also the bright prospect of a good future for this young man.

[86] I have concluded that the total sentence for Mr. Dalmar for all the offences is one of four years. For each of the loaded prohibited weapons there will be a four-year concurrent sentence and, for the ammunition charge, a one-year concurrent sentence and, for the careless, a six-month sentence, again to be served concurrently.

Issue No. 2 – Summers and Duncan Credit

(a) Summers credit

[87] Mr. Dalmar was arrested on January 24, 2020. As of the day of this judgment he has been in custody for 202 days. The combination of section 719(3) of the Criminal Code of Canada and R. v. Summers, 2014 SCC 26 entitles Mr. Dalmar to a maximum credit of 1.5 days: therefore, any sentence that he must serve is reduced by 303 days.

(b) Duncan credit

[88] I now turn to the issue of the Pandemic which, for those in custody, has brought consequences so dire to call them a “loss of privileges” is inappropriate. Mr. Dalmar is housed at Maplehurst. That institution has been completely closed for a number of weeks now due to an outbreak of COVID-19. As of Wednesday of this week, all my colleagues in Brampton were advised there were 100 existing cases of COVID at Maplehurst. It is not anticipated that inmates of that institution will be brought to court for their hearings until hopefully sometime between March 1-15.

[89] As of January 11, Maplehurst considered that Mr. Dalmar had been the subject of a total of 79 lockdowns, detailed as 73 full lockdowns and 6 partial (unspecified length) lockdowns.

[90] Mr. Dalmar disputes this assertion. His Affidavit speaks to 97 days of full lockdown and 20 days of partial lockdown up to January 7.

[91] Maplehurst records are provided in a form letter, with the number of custody days and the number of lockdowns for the particular inmate populated on the form. Within the form there is not the kind of detail provided by Mr. Dalmar’s Affidavit other than the following:

I/M had limited access to all privileges (Showers, Dayroom, Phone and Television Access) even when on full lock down. A 20 minute fresh air yard is offered to offenders daily unless on lockdown.

Every inmate shall be provided at least once every second day with access to a shower or water and equipment sufficient for bathing.

[92] Sadly, my judgments and those of my colleagues are littered with different descriptions of real life at Maplehurst.

[93] Mr. Dalmar’s Affidavit provided the following detail:

(a) On January 6 he had his first access to yard in over two months. (b) During August 2020 he had 3 showers. (c) In October and November, he had a total of 10 showers. (d) Between November 4 and 10 he was not allowed out of his cell for anything. (e) In terms of his general health, he suffers from serious back pain, for which he has been medicated but for which there has been little recovery due to the cell beds. (f) He has suffered from breathing difficulties due to mold in his cell.

[94] Maplehurst has been unfortunately the victim of numerous staffing shortages for a considerable period of time. Lockdowns are not unusual to Maplehurst inmates, regardless of the Pandemic; however, I am led to believe that lockdowns are now across the board because of the illness in the jail.

[95] I accept Mr. Dalmar’s evidence with respect to the number of lockdowns up to January 7th; his credibility on this issue is, frankly, one that more than passes muster. He has experienced the lockdowns, it is a measured number (i.e. he has not gilded the lily by saying it was every day) and it is in line with my experience of the numbers of lockdowns I have heard about and accepted in other cases.

[96] For each of the days of lockdown attested to by Mr. Dalmar, he will receive an additional one-day credit for that number – 117 days.

[97] I have no doubt that Mr. Dalmar has, during the last month, since he appeared in front of me, endured other lockdowns given that COVID-19 is raging in the jail to such an extent that there is no traffic in or out of the jail, short of release.

[98] The jail declared an outbreak on the 19th of January. On that date, there were 12 inmates infected. As stated earlier, there are now 100. I know now that Mr. Dalmar has not yet been infected with COVID-19 but as someone who spends days speaking to various inmates at Maplehurst, I am aware of the fear and the appalling harsh conditions experienced by all during this horrendous outbreak.

[99] For the additional hardship since the jail closed, I am crediting 1.5 days for each day.

[100] The reputation of the criminal justice system has to be earned by all of those who work within it. People charged with criminal offences, especially first offenders, have to walk away from this system believing they were treated as a real human being who made a mistake and were punished but only to the extent necessary.

[101] The stories that I have heard from Maplehurst are mind-boggling in their awfulness. The only power I have to recognize and redress some of the ills of this incarceration is to register my concern by imposing additional “hardship credit”. For each of the days of this exceptional hardship Mr. Dalmar will receive additional credit of 36 days.

Issue No. 3

[102] Finally, I intend to turn to the issue of whether the impact of COVID-19 going forward affects the fitness of sentence. It does: it is a collateral consequence. Therefore, it is appropriate to reduce the amount of incarceration as clearly being sentenced in this environment will have a significant impact on the offender.

[103] At the time of writing, Peel Region is in lockdown. Businesses continue to be closed, social distancing is now a way of life, masks are mandated in every congregate situation, other than one’s home. Access to the ability to continuously disinfect one’s hands is recommended.

[104] Jails are congregate living situations to the extreme. Social distancing is impossible. The stress of catching this disease remains, the ability to have meaningful meetings with family is impossible, rehabilitative opportunities are a concept of the pre-COVID-19 times. The availability of the vaccine is a long way from finding its way into the jails.

[105] As indicated above Maplehurst is in lockdown. Inmates are not being brought to court; following that logic, I doubt that sentenced inmates are moving to the institutions in which they will be housed as a sentenced offender. Wherever Mr. Dalmar goes, the conditions because of COVID-19 will be restrictive and possibly awful.

[106] A reduction in sentence is appropriate to recognize these collateral consequences. I acknowledge that the reduction cannot be such that takes this sentence out of the appropriate range of sentence. I have referred to other sentences where lower numbers have been imposed for a first-time gun offence.

[107] I am persuaded that a 6-month reduction in sentence to reflect the consequences of serving a sentence during COVID-19 is appropriate. This is well within the range of what is considered a fit sentence, although at the lowest range.

[108] Therefore: my overall conclusion is that:

Mr. Dalmar is sentenced to a total 4 years – minus 6 months for collateral consequences, leaving a 3.5-year sentence. From that will be deducted the following for pretrial custody:

Summers Credit: 10 months or 303 days

Duncan Credit: (a) Absence of privileges due to lockdown: 117 days

Credit during the outbreak of COVI-19 in the jail: 36 days

[109] At the conclusion of the recitation of this judgment I invited counsel to make submissions as to whether this should be a reformatory or a penitentiary sentence – there is a one-day difference. Ms. Nadler took no position and Mr. Grill submitted that the youth of this offender, the need to be close to his family and the unique difficulties posed in transferring prisoners during the Pandemic, the sentence of two years less one day is the appropriate sentence. I agree.

[110] The sentence, therefore, going forward will be one of two years less one day in the reformatory.

[111] I will now turn to the breakdown of the imprisonment to be imposed on the individual charges.

[112] On the possession of the firearm charges, there will be a sentence of two years less one day on each offence, concurrent to each other.

[113] On the extended ammunition clip, there will be a sentence of one year concurrent to all counts.

[114] On the careless use of the firearm charge, there will be a sentence of six months concurrent on all counts.

[115] Additionally, there will be a section 109 order prohibiting Mr. Dalmar from having in his possession any weapons for life and there will be a DNA order on the section 95(1) offences; they are secondary designated offences and I will sign the Forfeiture/Return of Property form prepared by Ms. Nadler.

[116] Given the sentence of incarceration going forward: The Victim Fine Surcharge is waived.

Released: February 12, 2021 Signed: Justice K.L. McLeod