R. v. Simpson, 2022 ONCJ 209

ONTARIO COURT OF JUSTICE DATE: 2022 05 02 COURT FILE No.: Windsor 19- 5614

B E T W E E N :

HER MAJESTY THE QUEEN

— AND — RICKY SIMPSON

Before Justice Scott G. Pratt

Heard on 30 August, 26 November 2021, 9 February, 23 March 2022 Reasons for Judgment released on 2 May 2022

Counsel: Andrew Telford-Keogh ..................................................................... Counsel for the Crown Frank Miller ................................................................................... Counsel for the Defendant

Pratt J.:

[1] On 30 August 2021 I began the trial of Ricky Simpson (hereinafter the Offender) on several charges. The matter was not completed on that day and was adjourned for a continuation date. On 26 November 2021 I was advised that the Offender wished to change his plea from not guilty to guilty on counts 2 and 8. He acknowledged that the evidence I had heard to that point substantiated the allegations made on those counts. I found him guilty. At his request, I ordered the preparation of a Pre-Sentence Report (PSR). I heard sentencing submissions on 9 February and 23 March 2022. These are my reasons for sentence.

Facts

[2] The counts pleaded to are as follows:

Count 2: Assault of A.L. between 13-20 March 2019 contrary to s. 266 of the Criminal Code Count 8: Distribute Intimate Image without Consent between 15-31 July 2019 contrary to s. 162.1 of the Criminal Code

[3] While evidence of other incidents was heard at trial, it is only the allegations that support these counts that have been acknowledged. It is only on these counts that I now sentence the Offender.

[4] In January 2018, the Victim and the Offender met online. Friends at first, their relationship became more serious around the time of the Offender’s birthday in September of that year. At the time, the Victim lived with her parents while the Offender lived with his children at […] Drive, Windsor.

[5] The Victim described the Offender as controlling. She testified that he would make plans to pick her up on weekends, but not tell her when to expect him. Sometimes he wouldn’t show up at all. This was the situation that led to the assault charge.

[6] Around St. Patrick’s Day 2019, the Offender again did not pick the Victim up as planned. She’d arranged for her parents to watch her daughter that night. When he didn’t attend, she got angry and went to where she thought he might be, a bar called the Bourbon. She saw his vehicle but did not see him. She went into a nearby bar and had a drink with a friend she saw. When she left the bar, she saw the Offender at his vehicle. He was, in her words, “wasted”.

[7] She asked him if she was going to his house or not. He said yes. He then drove to his home with the Victim following. When they arrived, she said she could tell he was angry. In the garage, he said things like, “I told you not to look for me” and “let me be a man”. She responded by telling him she was sick of sitting at home waiting for him. They entered the house.

[8] Once in the bedroom, he shut the door. He accused her of cheating on him. The Victim testified to what happened next:

WITNESS: I was laying on the bed, he came on top of me and then was choking me off the bed and then, he was choking me and punching me in the jaw, and we ended up falling off of the bed and uh I was on the floor, and I tried to crawl away and then he got up and then he got on top of my back and I was on my stomach, and he grabbed me by the back of my hair and was banging my head against the ground and, I was scared to like lose my teeth or like break my nose or something, so I was covering my, I had my hands on the floor to try and block the hardwood from hitting my face.

CROWN: Mr. Simpson’s on your back, he’s holding you by your hair… WITNESS: And banging it against the ground.

CROWN: What were you doing when Mr. Simpson was doing that to you?

WITNESS: I was begging him to stop and I was telling him that I’m sorry and that I won’t do it again, I won’t go to the bar again, I won’t look for him again, I’m sorry.

[9] The Victim managed to get away from the Offender and run downstairs. He ran after her. In doing so, he knocked over and broke a glass vase. He blamed her for breaking the vase and ordered her to clean up the broken glass but did not give her a broom. He said his children would get broken glass in their feet because of her. She said he kicked her about three times while she was cleaning the glass. The situation became calmer after that and they went back to bed. They both fell asleep. She awoke between 8-8:30am and quietly left the house. She went to a dollar store to buy sunglasses to hide the injuries to her face.

[10] Later that day, the Offender called the Victim. She sent him a picture of her injuries. He apologized and asked her to come back. She returned to his residence where she said they talked. There was no other altercation that day.

[11] Photos of the injuries suffered by the Victim from this assault were filed in a package marked as Exhibit 1. The photos show significant bruising to the Victim’s chest and arm, two black eyes, a swollen mouth, and abrasions and redness all over her face and jaw.

[12] In July 2019, the Victim and Offender exchanged text messages. The messages were filed as Exhibit 2 on the trial. In them, the Offender told the Victim he was going to send pictures to C.M., the father of the Victim’s daughter. She didn’t know he'd actually gone through with it until she heard from C.M. that he’d received a photo from the Offender. She asked him to send it to her. It was of the Victim performing oral sex on the Offender. While she had known at the time that he was taking the photo, she never gave her permission to share it with anyone. She turned the messages and the photo over to police.

Positions of the Parties

[13] The Crown position is that a six-month conditional sentence would be an appropriate disposition. The Offender should receive credit for 63 days of pre-sentence custody, enhanced at a rate of 1.5:1 to 95 days. This should be followed by two years of probation. The Crown also seeks a s. 110 weapons prohibition for five years. Lastly, the Crown seeks a DNA order on both offences but notes that each is discretionary in that regard and that the Offender’s DNA is already on the national databank.

[14] Regarding enhanced credit, the Crown as noted takes no issue with enhancing the Offender’s 63 days of pre-sentence custody in the usual way. Counsel argues that there has not been sufficient evidence of harsh bail conditions such that credit should be given for that period of time, and further that evidence of unusually harsh pre- sentence custody conditions is also lacking. The Crown argues that there should be no additional credit beyond the 1.5:1 credit that has become the norm in criminal cases.

[15] The sentence still to be served, therefore, would be a further 85 days in the community followed by probation.

[16] The Offender argues for a three-month conditional sentence. This, he says, is entirely accounted for by his enhanced pre-sentence custody of 95 days. In the alternative, if the Court agrees that the Crown’s position of six months is appropriate, he relies on additional credit for the time he was on bail and for the harshness of the conditions while in custody. He also makes the argument that “real” pre-sentence custody, served at the Southwest Detention Centre, should count for more against a conditional sentence than it would against a sentence of incarceration. By the Offender’s reckoning, regardless of whether I impose a three-month or six-month conditional sentence, the various credits available to him should bring him to a time served position.

Victim Impact

[17] I have had the benefit of a powerful and eloquent Victim Impact Statement from the Victim. In it, she describes in painful detail the consequences she has felt and continues to feel as a result of the Offender. She also speaks of the manipulation she endured in the course of their relationship:

It was drilled into my head by Ricky that I needed to protect him and his children. He told me he was all his kids had and I needed to keep our family together. I listened to every word and every lie he told me. He made me believe it was us against the world that we were in this together and the love we had for each other would get us through all our problems. He made me think one day we wouldn’t have to go through all of this if I just listened to him.

[18] She says she is mentally, physically, and financially exhausted. She now suffers from severe depression, post-traumatic stress disorder, anxiety, and memory loss. Medication prescribed for her anxiety and fear makes her feel numb and puts her to sleep.

[19] She feels fearful when she leaves her house because she might run into the Offender. She feels ashamed of what has happened to her. It is abundantly clear that the Offender’s behaviour has had a massive impact on every facet of the Victim’s life.

Pre-Sentence Report

[20] I have also had the benefit of a Pre-Sentence Report prepared by probation officer Ryan Perry. This report caused me significant concern. Specifically, the paragraph under the heading “Character/Behaviour/Attitude”, which read as follows:

During the Pre-Sentence Report interview, the Subject presented as polite towards the Writer; although, when describing the circumstances in the matters before the Courts, the Subject initially did not take any responsibility. The Subject reports the Victim called him and became agitated with him when she accused him of being with another woman. He suggests the Victim sent text messages to him that she planned to go to police and make claims that he assaulted her. He expresses he did not assault her or commit any of the various accusations. When the Writer inquired about his plea, he reports he pled guilty as he was afraid that he may be sentenced to jail time if found guilty. When the Writer advised him of an obligation to notify the Court of his statement of innocence, despite electing to plead guilty, he began to question whether he should “take responsibility”. The Subject states he does not want it to look as if he is not “taking responsibility”. He requested the Writer point out that he did not understand the initial question regarding the offence. He then changed his story to outline that the Victim reported to police that she followed him to a bar which created an altercation and he hit her. He did not expand on details or offer any remorse for his actions. With regards to the intimate image, he commented that her former partner was threatening him, so he sent him an intimate image of the Victim. (Emphasis added)

[21] It seemed to me that the Offender was clearly denying responsibility for the offences. While that is his right, I cannot continue with this plea proceeding if he is no longer admitting his guilt. Counsel for the Offender advised it was a misunderstanding by Mr. Perry. He noted that initially the Offender was facing a number of assault charges arising from different incidents but only admitted responsibility for one. He had been asked about taking responsibility for all offences, not just those to which he’d entered guilty pleas. The Crown agreed that despite how it looks, that explanation was sufficient to allow the plea to continue. Respectfully, considering the clear words of the PSR, I view that explanation with some skepticism. However, if the two experienced counsel before me are content to proceed, we will.

[22] Otherwise, the PSR outlines a history made difficult by the Offender’s mother’s drug use. His relationship with his mother seems to have improved in recent years and they are in daily contact.

[23] He is supported by a disability pension related to a workplace injury.

[24] Nowhere in the PSR does the Offender express any kind of remorse for his actions. He did, however, refer to the Victim as “crazy”. I remind myself that a lack of remorse is not an aggravating factor. I will refer to this point in more detail later.

Mitigating and Aggravating Factors

[25] The chief mitigating factor in the Offender’s favour is his guilty plea. In entering his plea, he has saved the Crown from establishing his guilt beyond a reasonable doubt. He has removed the uncertainty of the trial process. This is not, however, an early plea. It is hard to imagine, in fact, a plea coming much later in the trial process. One of the reasons a guilty plea is so mitigating is it usually spares complainants from testifying. That did not happen in this case. The Victim has testified and been thoroughly cross- examined. It was only after hearing what I would characterize as strong evidence against him, largely unshaken by cross-examination, that the Offender changed his plea.

[26] He seems to have fairly strong family support. This is important because a strong support system may improve his prospects for rehabilitation and for remaining on the right side of the law.

[27] I will address the mitigating effect of time spent on bail and in presentence custody later in these reasons.

[28] When asked by me if he had anything to say, the Offender apologized to the Court and to the Victim. He said it wouldn’t happen again. I hope that’s true.

[29] Aggravating factors include the violence of the offence and the context in which it occurred. Intimate partner violence remains an ongoing serious problem in Canada. Courts must treat it seriously. As stated by Justice Gorman in R. v. Sheppard [2013] N.J. No. 435 (Prov. Ct.) at paragraph 56:

The assault of women by their former partners (almost always men) is an ongoing societal and legal problem of enormous magnitude which too often results in horrible tragedies. As pointed out by the Law Reform Commission of Nova Scotia in its 1995 report, From Rhetoric to Reality, Ending Domestic Violence in Nova Scotia, "violence against women by their spouses is a life threatening situation ... it would not be an understatement to say that for many women, the experience of existing with a violent man is akin to living with a time bomb which will eventually result in death. The fact that many women continue to experience violence after they leave or no longer live with the spouse highlights the extent of the difficulty posed for women." Almost thirty years later, these comments still ring true.

[30] Parliament has also underlined the seriousness of these offences through the Criminal Code. Section 718.2 (a)(ii) deems abuse of one’s intimate partner an aggravating factor on sentence. Likewise, sub-paragraph (iii) makes abusing a position of trust an aggravating factor. Sub-paragraph (iii.1) makes evidence that the offences had a “significant impact” on the Victim also an aggravating factor.

[31] Section 718.201 requires a court to consider the increased vulnerability of victims of intimate partner violence, especially female victims.

[32] I also consider the events of the evening that led up to the assault. I was told that the Offender had made plans with the Victim. She arranged childcare and waited for him. He never came to pick her up. When she went looking for him, she found him between 1-2am, intoxicated in his truck outside a bar. She was understandably unhappy that he had stood her up. She testified that this was not the first time he’d done so. When they went to his residence, however, his anger at being found overtook any complaint she may have had. In the bedroom, he assaulted her as I’ve described above. By that point, it was she who was apologizing, not him. This reversal continued after the initial assault when the Offender knocked over a vase as he chased the Victim through the house. He blamed her for it and tried to make her feel guilty that his children would get broken glass in their feet. The assault continued as she tried to pick up pieces of the vase. That this assault was accompanied by emotional manipulation is also an aggravating factor.

[33] The assault is all the more serious given the injuries the Offender caused. The photos filed as exhibits make plain the physical toll his actions took.

[34] This is also not his first conviction for domestic violence. It was agreed by the parties that the 2005 entry on his criminal record, an assault for which he received a suspended sentence, was also committed against an intimate partner.

[35] I cannot lose sight of the fact that assault is not the only charge the Offender has admitted. He also shared an intimate image of the Victim without her consent. While not an offence of physical violence, the humiliation and psychological violence that it can cause should not be taken lightly. As Justice Stribopoulos, then of this Court, noted at paragraph 90 of R. v. J.R. [2018] O.J. No. 6409 :

Today, given that every cell phone is now also a camera and a video camera, intimate partners routinely share intimate images. Relationships end, sometimes badly. The potential for these sorts of images to then be distributed by a jilted former partner has become all too easy. As a result, the cases have understandably recognized that denunciation and deterrence are the most pressing sentencing objectives for this offence as well. The sentences imposed by courts for this crime must send a strong message. If you breach the privacy and trust of an intimate partner, the punishment will be severe.

[36] Justice Leach of the Superior Court of Justice also considered the offence at paragraphs 55 and 56 of R. v. J.B. 2018 ONSC 4726 , [2018] O.J. No. 4133 :

…In my view, the relatively recent enactment of s.161.2 of the Code reflects Parliament's view that there was a growing social concern about the specific phenomenon of intimate image publication without consent, and a need to address that concern in a more targeted and serious manner, with more pronounced denunciation and deterrence.

The newly created offence may not be a crime that leaves visible scars or injuries but, all the same, it clearly has the demonstrated potential to destroy the lives of its victims.

[37] Without question, this offence was a breach of trust. The Victim knew the Offender had the image and trusted him to keep it to himself. He chose not to, out of anger. What resulted was a serious criminal offence.

[38] In short, the aggravating factors, both statutory and specific to this case, far outweigh the mitigating factors.

[39] I would return to the PSR to address one other factor. As I’ve said, the Offender expressed no remorse in the PSR. I remind myself that while remorse can be a mitigating factor, a lack of remorse is not an aggravating factor ( see: R. v. Valentini (1999) , 132 C.C.C. (3d) 262 (Ont. C.A.) ).

Presentence Credit

[40] Counsel for the Offender has argued for pre-sentence credit under multiple headings. I will address each separately.

I. Summers Credit

[41] Section 719(3) and (3.1) state as follows:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody.

[42] It appears from the legislation that Parliament’s original intention was to limit credit for pre-sentence custody to one day of credit for each day spent in custody. It was only in those cases where circumstances warranted it that greater credit could be given. Even in those cases, the limit is 1.5 days for each day spent in custody.

[43] In R. v. Summers (2014) 2014 SCC 26 , 308 C.C.C. (3d) 471 (hereinafter “ Summers ”), the Supreme Court of Canada considered subsection 3.1. Justice Karakatsanis, speaking for the Court, gave the word “circumstances” a broad interpretation and found that a loss of parole eligibility (a feature common to all persons detained prior to sentencing) was sufficient to allow up to 1.5:1 credit. An accused need not show anything specific to him or her about their detention to receive the enhancement.

[44] As stated by Justice Karakatsanis at paragraphs 33 and 34, and paragraphs 68 and 69:

33 Our task in this case is to interpret these provisions. Specifically, we must determine the meaning of "circumstances" in s. 719(3.1), and whether the lost opportunity for early release and parole in pre-sentence detention can be such a circumstance, capable of justifying enhanced credit at a rate of 1.5: 1.

34 I conclude that loss of access to parole and early release constitutes a "circumstance" capable of justifying enhanced credit. In reaching this conclusion, I am in substantial agreement with the exemplary reasons of both Cronk J.A. in this case, and Beveridge J.A. in the companion case Carvery.

68 For these reasons, I conclude that the "circumstances" justifying enhanced credit under s. 719(3.1) may include loss of eligibility for early release and parole.

69 To conclude otherwise, it would be necessary for the Court to read limiting language into s. 719(3.1) that is simply not there. Such an interpretation would result in sentences inconsistent with the Code's own statement of principles, and would presume that the legislature intended to abolish the quantitative rationale for enhanced credit - that offenders should not be punished more severely because they were not released on bail - without clear language. And this despite the well-established practice, endorsed by this Court in Wust in the year 2000, that enhanced credit can be justified based upon the loss of eligibility for parole and early release. Such a conclusion is not plausible.

[45] As a result, an enhancement of pre-sentence custody at a rate of 1.5:1 became known as “Summers” credit. It is now granted almost automatically.

[46] In the present case, I am advised that the Offender has 63 actual days of pre- sentence custody. Employing the rate of 1.5:1, that would give him the equivalent of 94.5 days pre-sentence custody. While both Summers and s. 719(3.1) cap enhanced credit, the Court of Appeal for Ontario very recently rounded up from a fractional day, and I will do the same (see: R. v. Scott 2022 ONCA 317 at paragraph 55 ). I’m prepared to round the Offender’s credit up to 95 days.

[47] As a result, the Offender will receive credit for having already served the equivalent of a 95-day custodial sentence. If I accept the Offender’s argument that a 90-day sentence is an appropriate disposition in this case, he will have already effectively served it.

II. Downes Credit

[48] It is not only time spent in pre-sentence detention that can be considered by a sentencing court. Time on onerous bail can also factor into what defines a fit sentence.

[49] Unlike Summers credit, however, there is no formula for calculating the value of time on bail. That is because s. 719(2) specifically states that time spent on judicial interim release “does not count as part of any term of imprisonment imposed on the person”. Rather, it is treated as a mitigating factor that can serve to reduce the overall sentence imposed. This was considered at length in the case of R. v. Downes [2006] O.J. No. 555 (C.A.). At paragraphs 33 and 34, Justice Rosenberg stated:

33 Accordingly, I conclude that time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, like any potential mitigating circumstance, there will be variations in its potential impact on the sentence and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest. I agree with Ms. Paine that it is incumbent on the sentencing judge to explain why he or she has decided not to take pre- sentence house arrest into account. The failure to do so will constitute an error in principle as explained by Laskin J.A. in Rezaie, supra, at p. 719 O.R., p. 103 C.C.C.:

[Error in principle] connotes, at least, failing to take into account a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to relevant factors, overemphasizing relevant factors and, more generally, it includes an error of law.

34 I also agree with Ms. Paine, and to a large extent with Mr. Doucette, that it is inappropriate to adopt a rigid formula because there can be such a wide variation in bail conditions and even house arrest conditions. In some cases, the terms of the house arrest may impinge very little on the offender's liberty. Some accused may be allowed to work as usual, take care of their family obligations as usual and in general, see little serious impact on their pre-bail way of life. For others, house arrest may be very difficult. The accused may find themselves essentially confined to a very small space, cut off from family and friends and unable to obtain employment.

[50] Mitigation as a result of pre-sentence bail is now colloquially known as Downes credit. In the present case, the Offender claims he should receive Downes credit should I feel that a 90-day conditional sentence is not sufficient. Credit for his time on bail, he says (together with another form of credit, addressed below), should satisfy any additional custody I believe is necessary.

[51] I accept that time on stringent bail can be a mitigating factor on sentence. I also accept Justice Rosenberg’s observation that there can be a wide variation in bail orders. It follows logically that the more restrictive the bail is, and the longer a person is bound by it, the more credit they should receive. The reverse is also true. I further note there is no obligation on a sentencing court to grant any mitigation of sentence based on bail. It may be in a particular case that the circumstances simply don’t warrant it. So long as a sentencing judge adverts to the issue and deals with it, he or she has the discretion to grant it or not.

[52] I turn now to the Offender’s bail situation.

[53] On 2 August 2019, the Offender was released on a recognizance of bail. It named one surety (also named Ricky Simpson). It featured a pledge of $2,500 by both the Offender and the Surety. The conditions were as follows:

1. Reside at […] Drive, Windsor;
2. Do not contact or communicate in any way either directly or indirectly, by any physical, electronic, or other means, with the following: A.L.;
3. Do not be within 100m of any place where you know A.L. to live, work, go to school, or know her to be, except for required court appearances;
4. Do not possess any weapons as defined by the Criminal Code; and
5. Do not buy, possess or consume alcohol.

[54] The release is not particularly onerous. It does not, unlike the sorts of orders contemplated by Justice Rosenberg, involve house arrest. It does not involve a curfew. The most onerous condition is that he not buy, possess, or consume alcohol. Under the terms of his bail, the Offender could leave his house whenever he wished, and go wherever he wished (so long as he stayed away from the Victim). He could not possess weapons. Respectfully, this was not a difficult recognizance to live with.

[55] Live with it he did for more than two years. On 17 September 2021 the Offender was arrested on new charges. His existing bail was cancelled. He remained in custody, according to his counsel, until 18 November 2021. At that time, he was released on a new recognizance. That order named two sureties: Barbara Davis and Ricky Simpson. Ms. Davis pledged $2,000 while Mr. Simpson (the surety) pledged $7,000. The Offender pledged $9,000.

[56] The only changes on the second bail, aside from the additional surety and the pledged amounts, were as follows:

(1) The addition of a 10pm-6am curfew, with an exception for medical emergencies; (2) No “unrelated females” were to be permitted in his residence at any time; (3) Additional names were added to the no contact condition.

[57] The only condition that impacted the Offender’s liberty to any significant degree was the curfew. The other new conditions might be said to limit his freedom but not to any tremendous extent.

[58] In summary, the Offender was on the first bail for approximately 25 months. To the time of sentencing, he has been on the second bail for approximately 5 ½ months. He has therefore been bound by some kind of bail order for over 2 ½ years.

[59] I have considered the length of time the Offender was on bail together with the various conditions he had to observe. I find that his bail conditions, even on the second bail, were not onerous. They are not the “stringent bail conditions” contemplated by Justice Rosenberg. Any Downes credit applicable in this case would come from the amount of time he was on bail, not from the conditions he was under.

[60] In the result, I do take the Offender’s time on bail as a mitigating factor. I decline to name a specific number of days’ credit he should receive. To borrow the reasoning from the Court of Appeal for Ontario in R. v. Marshall 2021 ONCA 344 , [2021] O.J. No. 2757 as it relates to credit for harsh presentence custody conditions, doing so would, in my view, risk giving this mitigating factor undue importance. Courts do not typically assign specific credit to other mitigating circumstances, like remorse or strong family support. I see no reason to do so with bail. It will be considered appropriately along with the other mitigating factors mentioned earlier.

III. Duncan Credit

[61] One of the reasons inmates receive Summers credit is that pre-trial detention conditions are typically difficult. Detention centres do not have the same levels of programming or facilities as larger institutions. These conditions, together with the loss of earned remission, are already accounted for by the Summers credit ( see: Marshall at par. 50 ).

[62] There will be times, however, when pre-trial detention is unusually harsh. In cases like that, additional mitigation of sentence can result. This notion comes from the Court of Appeal for Ontario in the case of R. v. Duncan 2016 ONCA 754 , [2016] O.J. No. 5255 .

[63] It is interesting to note that Duncan was an oral endorsement. Endorsements are generally meant to apply only to the case at hand and not to be taken as establishing new legal precedent (see: R. v. Timminco Ltd. , [2001] O.J. No. 1443 (C.A.) at paragraph 36 ; R. v. P.M. [2020] O.J. No. 3207 (S.C.J.) ). Nonetheless, “Duncan credit” has been a feature of sentencing law ever since. Like Downes credit, Duncan credit is a mitigating factor. It should not be calculated mathematically to arrive at a certain number of days or months. As I mentioned above, quantifying it in this way risks overemphasizing its importance relative to other mitigating factors ( See: Marshall at paragraph 53 ).

[64] Recently, this credit has been considered against the backdrop of Covid-19. The worldwide pandemic that has affected essentially every aspect of modern life has also impacted the correctional system. Some impacts have actually been positive: in the early months of Covid-19, many inmates were released from custody early as authorities tried to minimize the size of the prison population. As I noted in R. v. Veres [2021] O.J. No. 2034 (C.J.) intermittent sentences have been frustrated by the pandemic and are no longer served. Those prisoners attend the custodial institution and are immediately given absence passes. They do not spend any time in custody. As well, the prison population was among the first groups to be given access to Covid- 19 vaccines.

[65] Not all changes to prison life have been positive. New arrivals at custodial institutions are put into mandatory medical segregation for 14 days. Freedom within the facility is often curtailed when a particular unit has an outbreak or when illness-related staffing shortages affect the institution’s ability to monitor inmates effectively. There is as well the general stress that living in a congregate setting as an easily-transmitted respiratory virus circulates can bring.

[66] I have no evidence on the harshness of pre-sentence custody from the Offender. What I do have is three documents submitted by the Crown: a spreadsheet setting out information regarding lockdowns to which the Offender has been subjected, a list of his cell assignments, and a memorandum from the Solicitor General of Ontario advising of pandemic procedures in custodial facilities.

[67] Some courts have determined that they can take judicial notice of the fact that pre-sentence incarceration is more difficult because of the pandemic (see: R. v. Niyonzima [2021] O.J. No. 2305 (C.J.) ). Conversely, others have granted no additional credit when no evidence is provided (see: R. v. Alvarado [2020] O.J. No. 5814 (C.J.) ).

[68] In the present case, while I have no direct evidence from the Offender, I have sufficient evidence on the details of his pre-sentence incarceration that I find it is a live issue for me to determine. I begin by reviewing the documents presented by the Crown.

A. Solicitor General’s Note

[69] This “Information Note” is authored by Dale Payne, Strategic Advisor, Institutional Services Division, Assistant Deputy Minister’s Office, and dated 6 January 2022. It states, “The purpose of this information note is to provide an overview of the current status of the Ministry of the Solicitor General’s response to COVID-19.” It goes on to provide information on procedures in place to deal with the challenges presented by the pandemic. It also provides a snapshot as of 6 January 2022 of the infection rates at each custodial facility in Ontario. This information is no longer current but I am advised that the policies outlined in the note are still in place.

[70] The note confirms that all incoming inmates are screened for symptoms on arrival. If they do not pass the screening process, they are placed in medical isolation based on directions from healthcare providers. If they pass screening, they are still placed in an intake unit for a minimum of 14 days and monitored for symptoms. It appears this is the route taken by the Offender in the present case. After spending the 18 and 19 of September in what appears to be the Admission and Discharge unit, his cell assignment, which I will consider further in the next section, notes that he was in “MSEG”, which I take to mean “medical segregation” for 23 days beginning 21 September. He was not eligible for work programs during this time. Meals were served to him in his cell.

[71] All inmates are given the opportunity to be tested, on a voluntary basis, by the tenth day of their incarceration.

[72] The note addresses the idea of medical isolation at page 6. It states:

Placement in medical isolation is temporary and non-punitive. Inmates placed in medical isolation are managed in accordance with ministry policy and still receive access to court and counsel, fresh air (“yard”), showers, use of telephone, and access to personal belongings as well as canteen.

[73] At page 10 of the note, it states that the weekly limit on canteen accounts was increased in December 2020 from $60 to $90 to compensate for the suspension of personal visits. This increase, according to the note, remains in effect.

[74] In short, the initial medical isolation seems to me to be the minimum necessary to minimize the risk of bringing Covid-19 into an institution. It is not tantamount to solitary confinement. Rather, it is a responsible means of addressing a pressing need in the correctional system. It infringes on the freedoms of inmates as little as possible while keeping the health of inmates and staff top of mind. In my view, neither the period from 21 September to 13 October, when the Offender was in a single cell under medical segregation, nor the time he spent in the Admission and Discharge unit lead to any mitigation of sentence. This is a different consideration from any lockdowns he experienced during this period, which I will address in the following section.

B. Lockdown Summary

[75] The summary of lockdowns provided by the Crown listed the dates of lockdowns, their duration, the reason, and how much of each lockdown the Offender actually spent in his cell. It’s a useful document that shows several things.

[76] First, it shows that all lockdowns are not created equal. There are lockdowns every day at the Southwest Detention Centre (SWDC). Each afternoon from 12pm – 1pm and each night from 10pm – 7am, the facility locks down. These are standard lunch and overnight lockdowns. They do not create any mitigation of sentence as they are part of the standard procedure for the facility.

[77] Other lockdowns, however, are not part of standard procedures. These arise from staffing shortages. In the Offender’s case, this issue caused many lockdowns ranging from 3 – 15 hours. The following list sets out the Offender’s time in lockdowns due to staffing shortages during his pre-sentence incarceration:

• Sept 18, 15 hours, in cell for 7 hrs
• Sept 19 – 15 hours
• Sept 24 – 24 hour scheduled lockdown, overlapped with 2h59m staffing lockdown
• Oct 3 – 15 hours, overlapped with scheduled 24h lockdown
• Oct 9 – 15 hours, overlapped with scheduled 24h lockdown
• Oct 20 – 3 hours
• Oct 22 – 6 ½ hours
• Oct 23 – 12 hours
• Oct 24 – 15 hours, led into overnight lockdown
• Oct 26 – 3 hours
• Oct 28 – 3 hours
• Oct 30 – 15 hours, led into overnight lockdown
• Oct 31 – 15 hours, led into overnight lockdown
• Nov 5 – 15 hours, led into overnight lockdown
• Nov 6 – 15 hours, led into overnight lockdown
• Nov 7 – 15 hours, led into overnight lockdown
• Nov 12 – 3 hours, led into overnight lockdown
• Nov 13 – 3 hours, led into overnight lockdown
• Nov 14 – 3 hours, led into overnight lockdown

[78] In all but the September 18 lockdown, the Offender was confined to his cell for the entire duration of the lockdown. I note that several of the lockdowns led into the overnight lockdown, meaning the effective length was much greater.

[79] I do not know if this number of staffing-inspired lockdowns is unusual for the SWDC. I have no evidence that the pandemic is the reason for these repeated staffing shortages. In my view, that distinction likely doesn’t mean much. Whether the shortages were a result of the pandemic or not, they evince a system that frequently did not have sufficient staffing to meet its responsibilities. Inmates bore the consequences of that shortcoming.

[80] I find that the amount of time spent in lockdown is an appropriate mitigating factor to consider on sentence.

C. Cell Assignment

[81] This document set out which cell the Offender was in, the number of cellmates he had, and his specific bunk assignment.

[82] I have no information about his cell assignment from 18-20 September when he was first admitted and housed in the Admission and Discharge unit (according to the Lockdown Report). The document only notes his assignment from 21 September onward.

[83] From 21 September – 13 October, as I have stated, the Offender was in medical segregation. This meant he had a cell to himself.

[84] From 14 – 18 October, the Offender was housed in Unit A2. Again, he was given a single cell to himself.

[85] For the remaining 30 days of his incarceration, he was housed with cellmates. The document provided redacted the names of the other occupants, but it was still clear on which days he was double-bunked and on which days he was triple-bunked. It also set out his bed assignment as either upper bunk, lower bunk, or floor.

[86] In my view, the only period that could result in mitigation is the 20-day period where he was housed with two other cellmates. On those days, the cell they shared was over capacity. I note from the previous section that almost all of the unscheduled lockdowns experienced by the Offender took place when he was sharing a cell with others. Being locked in a cell for 24 hours would be difficult enough. Experiencing that as one of three people in a cell built for two adds another dimension of hardship. This is exacerbated by the pandemic. Social distancing has been a core response to Covid. That measure is simply not possible when three people are housed in the same cell.

[87] During that 20-day period when he had two cellmates, the Offender was assigned to the floor for the first five days. After that, he was always assigned to a bunk, either upper or lower. The Offender’s counsel pointed out that what was listed on the sheet wasn’t always what transpired in practice. That is, there may have been times when the Offender was listed as having either the upper or lower bunk but owing to the interpersonal dynamics of cell life, was actually on the floor. I accept that as a possibility, though I heard no evidence that ever happened to the Offender.

[88] I have considered the information found in all documents provided by the Crown. That information has led me to the conclusion that mitigation of sentence is appropriate based on presentence custody conditions.

Analysis

[89] I begin my analysis by noting that this was not a joint submission. Crown counsel seeks a six-month conditional sentence. The Offender’s counsel argues for a three-month conditional sentence. While the Offender’s counsel acknowledged that six months might not be unreasonable, he still maintained his position of three months. Anything beyond that, he said, could be accounted for by the various types of presentence credit. The positions of each counsel, then, are as follows: the Crown says the Offender should receive a further 85 days conditional sentence, while the Offender says he should receive the equivalent of time served.

[90] This is an important point because without a joint submission, I am not bound to accept the recommendation of either party. It falls to me to determine a fit sentence.

[91] I remind myself that the Offender did not plead guilty to all charged offences. He had been accused of multiple assaults on the Victim but entered a guilty plea on only one. He also pleaded guilty to a charge of distributing an intimate image. He can only be sentenced on these counts.

[92] The assault the Offender has admitted was prolonged and violent. It came about because he was angry the Victim had gone looking for him that night. The fact that they’d made plans and she’d been waiting in vain for hours for him to pick her up didn’t appear to register with him. Instead, he felt that by coming to look for him, she’d encroached on his ability to be a man. This childish reaction underscores the emotional manipulation he was clearly employing.

[93] Rather than confront her about this slight in public, he waited until they were alone in his bedroom. He accused her of cheating on him. He choked her and repeatedly slammed her head off the floor. He caused her serious facial injuries. When she tried to escape, he chased her. He blamed her for him knocking over a glass vase and forced her to clean it up. He tried to make her feel guilty about the broken glass and assaulted her further as she cleaned it up.

[94] Some months later, the emotional manipulation returned when, following heated text messages, he sent an intimate image of the Victim to her child’s father. This is, again, a childish reaction that speaks to the Offender’s mindset.

[95] This is not the first time the Offender has committed offences against a partner. He did so in 2005 as well.

[96] In the case of R. v. Bates , [2000] O.J. No. 2558 , the Court of Appeal for Ontario discussed the seriousness of what is now called intimate partner violence. They said the following at paragraph 30:

The courts have been made increasingly aware of the escalation of domestic violence and predatory criminal harassment in our society. Crimes involving abuse in domestic relationships are particularly heinous because they are not isolated events in the life of the victim. Rather, the victim is often subjected not only to continuing abuse, both physical and emotional, but also experiences perpetual fear of the offender.

[97] As the Court did in that case, I have the benefit of a Victim Impact Statement that sets out the ongoing consequences of the Offender’s conduct. The perpetual fear mentioned by the Court is clearly present here.

[98] In my view, a significant period of custody is required. I have considered the principles of sentencing and applied, in particular, the principles of proportionality and restraint. I must, however, give denunciation and deterrence primary importance.

[99] Concurrently on each count, the Offender will be sentenced to 7 months custody. I will grant him the opportunity to serve that sentence in the community. That will be followed by two years of probation.

[100] He will be credited with 63 days of presentence custody. That will be enhanced to 95 days as Summers credit.

[101] Counsel for the Offender argued that presentence custody should count for more against a conditional sentence than it does against a sentence of incarceration. His reasoning is that lengths of conditional sentences and carceral sentences do not generally follow a 1:1 relationship. In a given case, a sentence of jail would usually be shorter than a commensurate sentence served in the community. While I do not necessarily disagree, I find I am bound by s. 719(3.1) to limit any enhancements of presentence custody to a maximum of 1.5 days per day served, regardless of the form of custody subsequently ordered. I also do not find it would be appropriate to reduce the subsequent conditional sentence by a set amount to reflect this reasoning. Doing so would circumvent Parliament’s clear wish that credit be capped at 1.5:1 with no exceptions.

[102] I have considered the issue of Downes credit. Bail was not onerous. The Offender was, however, bound by conditions for an extended period of time. This is a mitigating factor that does not affect assessment of presentence custody but does affect the sentence to be imposed.

[103] Similarly, I find that Duncan credit should impact the sentence to be imposed. The Offender’s presentence conditions involved multiple lockdowns often served in an overcrowded cell during a respiratory virus pandemic. I find these conditions are over and above the harshness contemplated by Summers credit.

[104] Taking all mitigating and aggravating factors into account, I find that the seven- month conditional sentence is appropriate. But for the mitigating factors, the sentence would have been longer. Subtracting 95 days leaves a further 115 days to be served.

[105] The terms of the Offender’s conditional sentence, in addition to the statutory terms, will be as follows:

1. Report in person to a supervisor within 3 working days of today’s date, and after that at all times and places as directed by the supervisor or any person authorized by a supervisor to assist in your supervision;
2. Co-operate with your supervisor. You must sign any releases necessary to permit the supervisor to monitor your compliance and you must provide proof of compliance with any condition of this Order to your supervisor on request;
3. House arrest. This home confinement condition will be in effect for the full duration of the sentence. I will hear from counsel regarding appropriate exceptions;
4. Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with A.L., C.M., or any member of their immediate families;
5. Do not be within 100m of any place where you know any of the persons named above to live, work, go to school, frequent or any place you know the persons to be except for required court attendances;
6. Do not possess any weapons as defined by the Criminal Code;
7. Do not buy, possess or consume alcohol or other intoxicating substances;
8. Do not possess or consume any unlawful drugs or substances except with a valid prescription in your name or those available over the counter; and
9. Attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor for domestic violence, which may include the Partner Assault Response Program;

[106] The Offender must remember that if he violates any of these terms, the presumption is that he will spend the remaining portion of the conditional sentence in a jail cell.

[107] On completion of the conditional sentence, the Offender will be placed on probation for two years. In addition to the statutory conditions, his probation conditions will be as follows:

1. Report in person to a probation officer within 3 working days of the completion of your conditional sentence and after that at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision;
2. Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer on request;
3. Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means, with A.L., C.M., or any member of their immediate families;
4. Do not be within 100m of any place where you know any of the persons named above to live, work, go to school, frequent, or any place you know the persons to be except for required court attendances;
5. Do not possess any weapons as defined by the Criminal Code; and
6. Attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer, specifically for domestic violence, which may include the Partner Assault Response Program.

[108] If the Offender violates any of the terms of his probation order, he can be charged with breaching the order and find himself back in custody.

[109] Additionally, on count 2 there will be an order under s. 110 of the Criminal Code prohibiting the Offender from possessing weapons for a period of five years.

[110] Both offences are secondary DNA eligible. As the Offender’s DNA is already on the national databank, I will decline to make that order on either count.

[111] There will be a $100 victim surcharge on count 2. I will give the Offender six months to pay. I will waive the victim surcharge on count 8.

[112] I wish the best for all parties in this case. My hope is that today will close this chapter and that all involved will be able to move forward in a positive way.

Released: 2 May 2022 Signed: Justice S. G. Pratt