# ONTARIO
# SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1266/11
DATE: 20130125
B E T W E E N:
HER MAJESTY THE QUEEN
S. Caponecchia, for the Crown
- and -
TIMOTHY TUROSKY
A. Gold and M. Webb, for the Defence
REASONS FOR SENTENCE
K. van Rensburg J.
[1] Timothy Turosky was charged with second degree murder in the death of his common law spouse Charmaine Whitley. Mr. Turosky entered a plea of not criminally responsible on account of mental disorder. In June 2012, the case proceeded before a jury that, after four days of deliberation, was unable to reach a verdict. A mistrial was declared. On November 14, 2012, Mr. Turosky pleaded guilty to the included offence of manslaughter, and he was found guilty of that offence. It is now my function to impose a just and proper sentence.
[2] This is a particularly tragic case. The victim, Charmaine Whitley, was by all accounts a valued member of the community – cherished by her family and friends and respected by her work colleagues. A young woman in the prime of her life she was only 38 years old when she died. It was clear from the evidence of the various people who testified at trial that, in the words of one of her many friends, Charmaine was the “glue” that held them together. The heartfelt victim impact statements of her mother, Shernet Whitley, her father Levi Whitley, and her sister Ruth Whitley, expressed the depth of the family’s loss. If the measure of a sentence were the value of the victim’s life, then there would be no sentence long or harsh enough for Timothy Turosky.
[3] That is not, however, how our criminal justice system works. We do not sentence offenders on the basis of an “eye for an eye”. The fundamental purpose of sentencing is set out in [s. 718](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec718_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html). It is to contribute to respect for the law and to maintain a just, peaceful and safe society. All trial judges in Canada are required by law to impose a just sanction that has one or more of the following six objectives: the denunciation of unlawful conduct, deterrence of the offender and others from committing offences, the separation of offenders from society where necessary, to assist in the rehabilitation of offenders, to provide reparations for harm done to victims or to the community and to promote a sense of responsibility in offenders, and to acknowledge the harm done to victims and to the community.
[4] The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, and consistent with the sentences our courts have imposed on similar offenders who have committed similar offences. The sentence must take account of aggravating and mitigating factors proven by the evidence.
[5] At the sentencing hearing there were agreed facts that had been entered to support the plea of guilty to manslaughter, as well as a book of materials. Counsel also invited me to consider the evidence from the trial over which I had presided, that had resulted in a mistrial. I do not intend to recite all of the evidence here, but will touch on some of the facts that are of particular relevance to the question of a fit and just sentence for this offence and offender.
Circumstances of the Offence
[6] I begin then by considering the circumstances of the offence which occurred on June 24, 2010.
[7] Charmaine Whitley had been in a relationship with Timothy Turosky for seven years and the two were living as common law spouses for four years. Charmaine knew that Tim had problems, that he was unreasonably obsessing over his dismissal from his former employer and that he was increasingly focussed on the perceived conspiracy involving his employer, CSIS and others. She tried to support him, even to the extent of going to see a lawyer with him in the months before her death. She tried to continue to engage him in family activities and social events with friends. Charmaine wanted to have a child and they had embarked on fertility treatments together. Charmaine was hopeful, it seems, that Timothy Turosky would come out of whatever it was that was affecting him. At the same time, she was frustrated at what seemed to be an inability to move forward, and on several occasions, including in the days before she was killed, she had told her friends and Tim that she wanted to leave him, if things did not improve.
[8] There is no question that the killing of the victim Charmaine Whitley was unprovoked. It occurred in the early morning hours when she was asleep. Mr. Turosky used one of two baseball bats he had placed beside the couple’s bed for self-protection in 2007. Charmaine was struck four times in the head, and her face was covered with a pillow. The blows were immediately fatal. Timothy Turosky was found on June 26, 2010 in the home, after the police had forced entry. He was lying in a foetal position on a stairway landing surrounded by sofa cushions, dazed and unresponsive.
[9] Mr. Turosky had no explanation for his actions other than that he had snapped. He had no history of violence, except against himself, and there was no prior abuse in the relationship. His police interview reveals someone who was trying to understand what happened, and also someone who realized that he had made a grave mistake. After his interview while in custody Mr. Turosky tried to harm himself by smashing his head repeatedly against the wall of his cell.
[10] What we know about the circumstances of the offence support the conclusion that Mr. Turosky unlawfully caused the death of Charmaine Whitley, but in the circumstances of his psychiatric condition and the state he was in at the time, it is doubtful that he intended to do so.
[11] There is no question in my mind that among the many people that loved and respected Charmaine, was her common law spouse Timothy Turosky. That is one of the most difficult aspects of this case, to understand how he could have killed her while she was asleep, bringing to an end her life, but also the life they shared together.
Circumstances of the Offender
[12] This brings us to the accused, Timothy Turosky. Mr. Turosky was 42 years old when he committed the offence. He was raised in a supportive and close family. Although his father was an alcoholic, his parents stayed together and his mother worked hard to build a good family life. Mr. Turosky is the youngest of four children. He was a bright and capable student. He studied at the University of Toronto, and made close friends, some of whom testified at the trial. He achieved his CA designation and he worked as an accountant.
[13] In around 1997, Mr. Turosky began to experience mental health problems, that eventually resulted in several suicide attempts and emergency hospital admissions. From 1997 he was under the care of his family doctor and a psychiatrist with a diagnosis of depression, and was taking medication for this condition. His mental health deteriorated around 2003 in the context of not receiving a work promotion. There were hints of what became his primary mental health issue, a delusional disorder, being noted by health care professionals as early as 2004. After a psychiatric admission following a suicide attempt in 2009 he had some psychiatric follow-up and received a prescription for anti-psychotic medication. Unfortunately, as a result of lack of insight into his psychosis, he distrusted his psychiatrist and did not follow up with treatment. In March 2010, approximately three months prior to the offence, Mr. Turosky’s father died. He stopped taking his antidepressant medication as he became suspicious of the doctors at the clinic who prescribed the medication.
[14] Mr. Turosky was examined by two psychiatrists in the course of these proceedings: Dr. Hy Bloom, who was retained by the defence, and Dr. Lisa Ramshaw, who provided a report to the Crown. Both psychiatrists testified at trial, and their initial reports in support of the NCR defence, as well as their follow-up reports prepared since the time of the trial, were provided to the court in the context of the sentencing.
[15] It was the conclusion of both psychiatrists that Mr. Turosky suffers from a delusional disorder of the persecutory type. Mr. Turosky’s delusions concern the treatment he received from his former employer, and in particular his perceived role as a whistleblower whose concerns were ignored and led to his termination. He believed that he had been wrongfully dismissed, and that there was a cover-up of his allegations. He came to believe that there was a conspiracy between his former employer and others, including CSIS, which fears were exacerbated when he apparently received a visit from a CSIS representative after his identity had been compromised. Over time, he came to believe that almost everyone he came into contact with – his friends, family members, neighbours and even strangers he encountered, were part of the conspiracy. His actions, many of which were recounted by the witnesses at trial, became increasingly erratic.
[16] The two psychiatrists who testified at trial did not treat Mr. Turosky over the years that his mental health deteriorated. Nevertheless, they reviewed the medical reports, and a great deal of other information, including his many writings that were found in his home by the police. Dr. Bloom interviewed Mr. Turosky, on ten or 11 occasions, and Dr. Ramshaw met with him three times.
[17] There was no history of violence or domestic abuse in the relationship between Mr. Turosky and Ms Whitley. Indeed, neither psychiatrist could identify any precursors to the killing. Mr. Turosky scored markedly low on two assessments of risk of domestic violence administered by Dr. Bloom. As Dr. Bloom noted, “but for the unusual intersection of variables occurring at a pinpoint in time, which is in essence what brought about Charmaine’s death, Mr. Turosky would never by virtue of all information about him have appeared to be a candidate to commit domestic violence, let alone domestic homicide”.
[18] While detained, Mr. Turosky has been treated with an antidepressant as well as antipsychotic medication. He has been guarded with correctional psychiatrists and did not reveal his experiences to them, apparently on the advice of his lawyer, and because he did not trust them. He expressed the opinion to Dr. Ramshaw that a doctor he had seen early on at Maplehurst Correctional Complex had been coached by “the conspirators” to ask particular questions. He developed fears that certain cellmates had links to the conspirators.
[19] Mr. Turosky wrote a letter to the court to express his remorse for the killing of Charmaine Whitley. Of the two and one half pages, two pages are devoted to a continued chronology of what Mr. Turosky perceived as a cyberattack by CSIS and others, which he believes broke him down and led to his complete mental deterioration and the loss of Charmaine Whitley. The letter, which was written after his trial, and before the sentencing hearing, demonstrates the extent to which Mr. Turosky continues to be preoccupied by his delusions.
[20] Mr. Turosky has no criminal record or prior involvement with the criminal justice system. The evidence at trial as well as the many letters of family members and friends filed at the sentencing hearing attest to the fact that he has a strong support network of people who are deeply concerned about his welfare. Many of these are people who had tried, with only limited success, to help Mr. Turosky in the past when they recognized aspects of his mental illness. They confirm their commitment to continuing to assist Mr. Turosky in the future.
Sentencing Considerations
[21] The guilty plea was the result of extensive consultation between experienced counsel. As part of the plea, counsel agreed on a range of eight to ten years imprisonment as appropriate for sentencing, with Crown counsel submitting that Mr. Turosky should receive a sentence of ten years and defence counsel arguing for eight years. Counsel disagree about the credit to be given for pre-sentence custody, which I will address later in these reasons.
[22] As the Court of Appeal recently reaffirmed, while the imposition of a fit sentence is ultimately the trial judge’s responsibility, a court must give considerable weight to joint submissions and should have cogent reasons before departing from a sentence to which counsel have agreed: R. v. DeSousa, [2012 ONCA 254](https://www.canlii.org/en/on/onca/doc/2012/2012onca254/2012onca254.html), [2012] O.J. No. 1709 (C.A.).
[23] In the present case both counsel were asked to justify the range of eight to ten years, and they have effectively done so by providing the court with a number of case authorities, setting out and applying the relevant sentencing principles.
[24] There are two important features of the offence before this court. The first is that it involved a domestic homicide. Pursuant to the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) this is an aggravating factor. The second is that Mr. Turosky has a mental illness. An offender’s mental illness at the time of the offence is generally treated as a mitigating factor, as it is consistent with diminished moral responsibility.
[25] There were two lines of relevant cases respecting sentences for manslaughter that were referred to by counsel. The first were cases in which the offender had killed his or her domestic partner, some of which involved mental illness. A second line of cases involved crimes of brutal violence, which were not domestic homicides, but were committed by a mentally ill offender.
Domestic Manslaughter Cases
[26] The appropriate range for sentence in a domestic manslaughter case has been established in a series of cases from the Court of Appeal. In R. v. Rawn, [1990] O.J. No. 386 (C.A.), the court refused to interfere with a sentence of eight years, where the offence involved domestic violence in the form of a brutal beating and the extensive application of force. In R. v. Donaldson, [1987] O.J. No. 284 (C.A.), the court reduced a sentence of 14 years that had been imposed after a joint submission, to ten years, where the accused, who had strangled his estranged wife, had been under extreme stress and was otherwise of excellent character and was a good candidate for rehabilitation. In R. v. Thorn, [1978] O.J. No. 486 (C.A.), the court reduced a sentence of 12 years to eight years, holding that 12 years was beyond the normal range of sentence for such an offence, and in R. v. Ostrowski, [1976] O.J. No. 78, the court also reduced a sentence of 12 years to eight years. In that case there was psychiatric evidence that the accused was overwhelmed by the imminent departure of his wife, was of limited intellectual capacity and that intoxication deprived him of the specific intention to kill. In R. v. MacDonald, [1974 1641 (ON CA)](https://www.canlii.org/en/on/onca/doc/1974/1974canlii1641/1974canlii1641.html), [1974] O.J. No. 721 (C.A.), the Court of Appeal upheld a sentence of 15 years, however in that case the victim was badly beaten to death, and the beating was the vicious culmination of a pattern of spousal abuse.
[27] Most recently, in R. v. Kimpe, [2010 ONCA 812](https://www.canlii.org/en/on/onca/doc/2010/2010onca812/2010onca812.html), [2010] O.J. No. 5119 (C.A.), the Court of Appeal imposed a sentence of ten years (or six years and three months, in addition to 45 months time served) in a case where the accused had an argument with his common law wife, became enraged and choked her to unconsciousness until she died. He then lit the house on fire to avoid detection for the crime. He put forward the defence of provocation which was accepted when the jury returned a verdict of manslaughter. The court concluded that the aggravating factors were the circumstances of a domestic homicide, the extreme violence over five minutes, the vulnerability of the victim and the accused’s actions after the event. Mitigating factors were the accused’s history as a devoted partner, and his attempt to plead guilty to manslaughter at the outset of trial. The Court noted that the range of sentence for a case with these aggravating factors is seven to 12 years.
[28] There are a number of trial decisions that reinforce the range of sentence proposed in this case in the specific context of a domestic manslaughter with an offender with mental health problems. Watt J., as a trial judge in R. v. Gray, [1995] O.J. No. 236 (Gen. Div.) and R. v. Perrambalam, [2001] O.J. No. 3520 (S.C.), noted that the range for a domestic manslaughter was seven to ten years where in each case the accused suffered from severe mental health problems. In Gray, the offender had paranoid delusional beliefs. In R. v. Bond, 1987 CarswellOnt 2379 (H.C.), Watt J. noted that the range was eight to ten years. He observed in that case that, “the accused has a personality disorder…his unwillingness or inability to acknowledge his deficits…renders him a threat to the physical security of others”. The accused was sentenced to six years in addition to time served of two and one third years.
[29] R. v. Brooks, [1993] O.J. No. 1396 (Gen. Div.), is a case with some similarities to the present case. The accused killed a female friend violently, in that case by strangulation. He suffered from personality disorder with paranoid features. He was severely depressed, having quit his job the week of the homicide. The expert evidence indicated that at the time of the killing the accused was consumed with, fear, anger, frustration and a sense of futility. He had a warped, altered and delusional thought process which was also compromised by his self-induced intoxication. The victim was vulnerable and incapable of defending herself. The accused, who was a talented and intelligent person, was remorseful and his conduct was out of character. The trial judge, Moldaver J., noted that the prospects for rehabilitation remained to be seen, and he observed that in that case, without treatment the accused would be a continuing risk and danger to society. The court imposed a sentence of six years in addition to two years of pretrial custody for which the accused was credited three years.
Mental Illness as a Mitigating Factor
[30] Some of the cases already noted involved offenders that committed a domestic manslaughter while affected by a mental illness. In addition to these cases, counsel referred to other cases in which the courts have observed that the mental illness of an offender at the time of the offence is a factor in mitigation of sentence.
[31] In R. v. Hagendorf, 2000 CarswellOnt 5245 (S.C.), a case involving a guilty plea to manslaughter in respect of the death of one victim and the attempted murder of another, Durno J. noted, at para. 50, that “it is in relation to the degree of responsibility of the offender that the evidence of [the offender’s] mental illness impacts. A person who commits crimes of any type and particularly crimes of violence while in a sane and sober condition, unaffected by mental impairment of any kind, has the highest level of responsibility, or moral culpability”. Later, at para. 54, he noted, “reported cases support the position that a person who commits an offence while suffering from a major mental illness which is at least a contributing factor in the commission of the offence receives a shorter term than those who commit the same offence unaffected by mental illness”.
[32] The Alberta Court of Appeal observed in R. v. Ayorech, [2012 ABCA 82](https://www.canlii.org/en/ab/abca/doc/2012/2012abca82/2012abca82.html), [2012] A.J. No. 236 (C.A.) at para. [12](https://www.canlii.org/en/ab/abca/doc/2012/2012abca82/2012abca82.html#par12):
The gravity of the offence, is not, of course, lessened by the personal circumstances of the offender. However, the mental disorder diminishes the degree of responsibility of the offender. Impaired reasoning, delusional disorders, and like mental conditions distinguish those afflicted from the ordinary offender who is fully accountable for his or her conduct [case references omitted]
Positions of Counsel
[33] Crown counsel argues that Mr. Turosky should receive a sentence of ten years. She argues for a sentence at the higher end of the applicable range on the basis of a number of factors, including the circumstances of the offence, involving a brutal domestic homicide of a defenceless victim in her own home, Mr. Turosky’s apparent lack of insight, his failure to obtain and pursue appropriate treatment for his mental illness, and the grave emotional loss to the family of the victim.
[34] Crown counsel asserts that a sentence of ten years would be consistent with the sentencing objectives of denunciation, general deterrence and rehabilitation of the offender. She also asserts that the longer Mr. Turosky can remain in custody, the greater the guarantee of regular and consistent treatment for his condition.
[35] Defence counsel submits that a sentence of eight years, that is, at the lower end of the range that both counsel consider appropriate, would be a fit sentence in this case. He points to Mr. Turosky’s status as a first offender and his lifetime as a law-abiding citizen until the commission of this offence. He asserts that Mr. Turosky has expressed genuine remorse for the offence, and that any lack of insight into his own condition, and his failure to obtain treatment result from the delusional disorder affecting him. As such they should not be treated as aggravating factors.
[36] Mr. Gold asserts that Mr. Turosky will benefit from better treatment outside of the prison context. As such, a sentence at the lower end of the appropriate range, which would ensure his earlier release, would be more consistent with the goal of rehabilitation of this offender.
Decision re: Length of Custodial Sentence
[37] I have given careful consideration to all of the various factors in this case, and the case law to which I have been referred by counsel. I have reached the conclusion that a fit and just sentence for Mr. Turosky would be eight years.
[38] In arriving at this decision, I have considered first the aggravating factors that this offence occurred in the context of a domestic relationship, and the fact that the killing was one of extreme brutality, that has caused enormous grief to Charmaine Whitley’s friends and family. That said, there was no pattern of abuse or violence in Mr. Turosky and Ms Whitley’s relationship. I accept the opinion of the psychiatrists that Ms Whitley’s death had more to do with her physical and emotional proximity at the time that Mr. Turosky was overcome by the effects of his mental illness, than with any animus against her or anything in their relationship as common law spouses.
[39] I have considered the Crown’s argument that Mr. Turosky lacks insight and that he had failed to obtain treatment for and had stopped taking medication for his mental illness, as justifying a sentence in the upper end of the range. Evidence that an offender appreciates the gravity of his misconduct and has accepted responsibility for his actions, may be relevant to the degree of moral blameworthiness and is also a first step toward rehabilitation.
[40] I accept that Mr. Turosky appreciates the wrong in the crime he has committed and is remorseful. What he lacks is insight into his mental illness, and in particular that what he continues to perceive as a conspiracy against him is in fact the product of his delusional disorder. In this case, the lack of insight is not an aggravating circumstance. Mr. Turosky has not refused to take responsibility or to accept fault in the killing of Ms Whitley; rather he is incapable of understanding what happened outside of the context of the delusional beliefs he continues to hold. His failure to pursue treatment before the tragic events occurred is also not an aggravating factor, such as the case with an accused who voluntarily abused drugs or alcohol, or wilfully refused treatment or refrained from taking medication. Mr. Turosky’s failure to obtain treatment was a product of a mental illness that made him suspicious and distrustful of others, including family members who tried to get him help, and the doctors who were treating him.
[41] The primary mitigating factor in sentencing in this case is Mr. Turosky’s mental illness, but for which this offence would not have been committed. As was noted in the Ayorech case, the relative importance of deterrence and denunciation is attenuated when sentencing mentally ill offenders. This principles applies even if there is little prospect of a complete cure and rehabilitation (at para. 11). Deterrence assumes an ability to exercise judgment and insight. It is unrealistic to assume that a longer sentence would deter other persons with mental illness from committing such offences.
[42] I have also considered the evidence of both psychiatrists that Mr. Turosky’s psychiatric disorder will likely be a lifelong affliction. That said, it was not asserted by Crown counsel that Mr. Turosky presents a continuing risk, or that a sentence in the upper range is necessary for the protection of the public. The psychiatric evidence at trial did not suggest that Mr. Turosky presents a continuing danger to others, and Dr. Bloom’s most recent report expresses the view that Mr. Turosky’s risk for any form of violence is markedly low. The function of this court in sentencing is not to hold a person in jail until he is changed or in this case cured of his mental affliction. As Ms Caponnechia noted, Mr. Turosky can only be sentenced for the offence he has committed, which in all the circumstances would attract a sentence in the eight to ten year range.
[43] Finally, I do not accept the argument of Crown counsel that a longer period of incarceration is appropriate and necessary to ensure that Mr. Turosky receives treatment for his mental illness. While in jail Mr. Turosky has seen a psychiatrist for 15 minutes once a month. He is taking anti-psychotic medication, however the prison psychiatrist has not to date followed Dr. Ramshaw’s recommendation for an increased dosage. I do not accept that a longer period of incarceration will serve to promote Mr. Turosky’s rehabilitation. To the contrary, common sense suggests that many more mental health resources and facilities, both public and private, will be available to Mr. Turosky outside of prison, where he will also have the support of family and friends.
Credit for Pre-Sentence Custody
[44] I turn now to the question of what credit Mr. Turosky should receive for the time he has served in jail pending trial, the guilty plea and sentencing.
[45] Between the date of his arrest on June 26, 2010 and his guilty plea on November 14, 2012, Mr. Turosky spent 871 days in custody. He has since spent a further 72 days in custody while waiting to be sentenced.
[46] As a result of the Truth in Sentencing Act, which was proclaimed in force on February 22, 2010, Parliament amended the rules governing credit for pre-sentence custody. The relevant subsections of s. 719, as amended, provide as follows:
719. (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.
Exception
(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).
[47] In the past two for one credit for pre-sentence custody was almost automatic, and courts would also consider whether to give enhanced credit. The reasons for this were articulated by LaForme J.A. in R. v. Monje, [2011] O.J. No. 1, [2011 ONCA 1](https://www.canlii.org/en/on/onca/doc/2011/2011onca1/2011onca1.html) at paras. [17 and 18](https://www.canlii.org/en/on/onca/doc/2011/2011onca1/2011onca1.html#par17). To paraphrase, extra credit for pre-sentence custody would take into account circumstances such as the lack of programming or activities, overcrowding and the fact that pre-sentence custody does not count toward a prisoner’s eligibility for full parole or statutory release. Such time is commonly referred to as “dead time”, and notwithstanding the new legislation, this reality continues. LaForme J.A. quoting Laskin J.A. in R. v. Rezaie (1997), O.R. (3d) 713 (C.A.) noted that pre-sentence custody remains as “one of the most punitive forms of imprisonment in Canada”.
[48] According to the amendments, the court can give credit of up to 1.5 days for each day in pre-sentence custody, and this can occur only “if the circumstances justify it”.
[49] There are essentially three lines of authority in which judges of the Ontario Court of Justice and the Superior Court have interpreted the new provisions. The authorities however are in substantial agreement that the onus is on the party seeking to justify enhanced credit to establish that it is warranted in a particular case, and that in so doing, the usual range of evidence that is admissible at sentencing can be considered. As Trafford J. noted in R. v. Lewers, [2012 ONSC 5332](https://www.canlii.org/en/on/onsc/doc/2012/2012onsc5332/2012onsc5332.html), at para. 26, “the evidentiary record may consist of credible and trustworthy evidence augmented by judicial notice, agreed statements of fact or reliable unopposed statements by counsel speaking as officers of the court”.
[50] The first line of authority, which finds expression in the decision of Green J. in R. v. Johnson, 2011 ONCJ, and the decision of Glithero J. in R. v. Summers, [2011] O.J. No. 6377 (S.C.J.), asserts that the loss of remission in itself is a factor in determining how much credit should be given for pre-sentence custody, even under the new rules. In Johnson the court expressed the view that except in cases excluded by s. 719(3.1), and the case law, enhanced credit “is both fair and apposite in every remand offender sentencing case warranting compensation for the loss of remission.” In Summers the court suggested that it would be inequitable to treat a person in custody who has not yet gone to trial differently from one who has been convicted. The Nova Scotia Court of Appeal in R. v. Carvery, [2012 NSCA 107](https://www.canlii.org/en/ns/nsca/doc/2012/2012nsca107/2012nsca107.html), [2012] N.S.J. No. 527 appears to adopt this line of reasoning. An appeal of the Summers decision is currently under reserve at our Court of Appeal.
[51] The contrary line of authority is expressed persuasively by Pomerance J.. in R. v. Caceres, [2012 ONSC 5214](https://www.minicounsel.ca/scj/2012/5214), [2012] O.J. No. 4421 (S.C.J.) and Harvison-Young J. in R. v. Morris, [2011 ONSC 5206](https://www.canlii.org/en/on/onsc/doc/2011/2011onsc5206/2011onsc5206.html), [2011] O.J. No. 3995 (S.C.J.). As Harvison-Young J. observed in Morris at para. [41](https://www.canlii.org/en/on/onsc/doc/2011/2011onsc5206/2011onsc5206.html#par41), “the effect of establishing a general rule expressed in mandatory terms of a maximum 1:1 credit is to exclude from consideration under s. 719(3.1) factors that would apply to all accused who have been detained in custody prior to sentence”.
[52] In Caceres, Pomerance J. observed that it is appropriate to consider the circumstances of the detention in a particular case. Such circumstances need not be dramatic or extreme or rare, but “must consist of something other than a universal or routine aspect of pre-sentence custody”. She described the relevant considerations at para. 80 as follows:
They may involve conditions of detention, they may involve delay in sentencing that was beyond the offender’s control, hardship based on the offenders’ personal circumstances or any number of other situations that may arise on a case by case basis. They do not, however, lie in the mere fact that an offender has, by virtue of pre-sentence custody, been deprived of the right to statutory remission.
[53] In what may be considered a third line of authority, courts have acknowledged that, without applying a general rule that would grant most offenders enhanced credit for the lack of earned remission, this is a factor that can be considered as a circumstance in a particular case. In Lewers, Trafford J. noted at para. 26:
The basis of enhancing the credit may be the oppressive aspects of the pretrial incarceration, the absence of training or other educational programs in the facility and the fact that the time spent in custody pending trial is not considered on parole issues.
[54] In R. v. Velez-Lau, [2011 ONSC 4805](https://www.canlii.org/en/on/onsc/doc/2011/2011onsc4805/2011onsc4805.html), [2011] O.J. No. 3710, 2100 ONSC 4805 (S.C.), Patillo J. observed at para. 36:
…the words “if the circumstances justify it” in s. 719(3) give the court a wide discretion to grant credit for per-sentence custody above the general rule of 1:1 up to a maximum of 1.5:1 except for the excluded categories of remanded offenders. That discretion must be exercised having regard to the circumstances of the offender being considered as established by the evidence. Those circumstances include but are not limited to the circumstances of the detention, the length of the custody, the conditions during custody, the availability or unavailability of appropriate educational and rehabilitation programs and the effect of such custody on remission and parole eligibility.
[55] In R. v. Stonefish, [2012 MBCA 116](https://www.canlii.org/en/mb/mbca/doc/2012/2012mbca116/2012mbca116.html), [2012] M.J. No. 420 (C.A.), the Manitoba Court of Appeal concluded that the loss of remission can be considered as an individual factor “where the accused can bring evidence of good behaviour on remand so that it would appear that had he been a sentenced prisoner he would have received credit for remission” (para. 111). In that case, the accused had not made any submissions or brought forward any evidence to fulfil his onus of showing that his individual circumstances justified enhanced credit. There was no evidence as to whether the accused was a likely candidate for remission or parole, and enhanced credit was therefore refused.
Positions of Counsel
[56] Crown counsel does not disagree with enhanced credit for the time spent in custody between Mr. Turosky’s guilty plea and sentencing, however she asserts that it would be an error to give any enhanced credit for the custody prior to Mr. Turosky’s guilty plea based on the lack of earned remission. She objects to any enhanced credit being given for periods of lockdown (especially lockdown periods that were for Mr. Turosky’s medical care or for the safety and security of all inmates) or other circumstances. She points to the fact that lockdown occurred for approximately 10% of the time Mr. Turosky has been in custody. Ms Caponnechia contends that there are no resources that were requested by Mr. Turosky that he has been denied, and that there is nothing exceptionally harsh in the circumstances of his detention that would warrant enhanced credit.
[57] Defence counsel asserts that Mr. Turosky should be credited with 1.5 days for each day in pre-sentence custody in part because of the lack of earned remission. While Mr. Gold urges the court to follow the approach in the Summers and Johnson cases, to grant credit of 1.5 to 1 for all of Mr. Turosky’s pre-sentence custody, he also asserts that there are circumstances specific to Mr. Turosky and his incarceration that would warrant such enhanced credit. He points to the evidence of lockdowns at Maplehurst during the period of Mr. Turosky’s incarceration there. He relies primarily however on Mr. Turosky’s mental illness, and the fact that the resources to address his treatment and rehabilitation have been limited, by comparison to what is expected to be available after he has been assessed and placed in an appropriate custodial setting. Mr. Gold asserts that it is not necessary, at least in the circumstances of this case, to establish that services were requested and refused.
Decision re: Credit for Pre-Sentence Custody
[58] Until our own Court of Appeal resolves this issue, I must determine for myself which line of authority to follow, and in particular how the court should address the question of the lack of earned remission for pre-sentence custody.
[59] As a matter of statutory interpretation, the intention was to change the general approach of our courts in granting enhanced credit automatically for time served. Now it is necessary to consider the circumstances relevant to the particular offender and his incarceration to determine whether enhanced credit should be given, and the court must articulate the reasons where the offender is credited with more time in custody than he has actually served. This is consistent with “truth in sentencing”, so that the public can better understand the reasons why in a particular case time served is credited on an enhanced basis. The fact that pre-sentence custody is “dead time” for all offenders is a fact that, according to the new provisions cannot automatically justify enhanced credit.
[60] That said, I do not regard the new provisions as excluding consideration of the lack of earned remission in a particular case. I agree with the approach in Lewers and of Velez-Lau, that a court may have regard to this factor in the context of the particular circumstances of detention of the offender in question.
[61] I do not consider it worthwhile or required by s. 719(3.1), to examine each day of pre-sentence custody to determine whether credit should be given on an enhanced basis. Rather, taking into consideration all of the circumstances that are relevant to this offender and his detention, is credit of more than one day for each day served justified?
[62] In this case I have concluded that Mr. Turosky shall be credited with 1.2 days for each day in pre-sentence custody. This is based on the following circumstances: There was a delay between his guilty plea and sentencing of more than two months. Of the 91 days of lockdown that were not due to Mr. Turosky’s own health issues, there were approximately 60 days that were due to staff shortages. Most importantly, I consider the effect of Mr. Turosky’s mental illness and the limited resources available in pre-sentence custody to address his issues, that makes the lack of earned remission particularly significant for this offender.
[63] I have determined that the appropriate sentence in this case, having regard to all of the circumstances, would be eight years imprisonment. Mr. Turosky is credited with 1.2 days for each day he has spent in pre-sentence custody, which I calculate at 1,132 days. He is accordingly sentenced to an additional four years and 328 days in prison.
Mr. Turosky’s Need for Ongoing Psychiatric Treatment
[64] Mr. Turosky is obviously in need of ongoing psychiatric care. Dr. Ramshaw and Dr. Bloom both expressed the opinion that his psychiatric illness is likely a lifelong condition that will require ongoing medication and therapy, with the objective of increasing Mr. Turosky’s insight into his condition and his compliance with treatment. Dr. Ramshaw has recommended an increase in the dosage of anti-psychotic medication and he will benefit from more consistent therapy and treatment from a psychiatrist and other medical personnel, in which he will hopefully engage more willingly, now that his criminal trial has ended.
[65] There will be an endorsement on the warrant of committal that, after his transfer, assessment and classification, the penitentiary authorities do their utmost to create an optimal treatment plan and environment for the offender’s ongoing psychiatric condition. The reports of Dr. Bloom dated November 1, 2012 and Dr. Ramshaw dated August 2, 2012 shall be attached to the warrant. Copies of Dr. Bloom’s report dated December 6, 2011 and Dr. Ramshaw’s report dated April 2, 2012 shall be forwarded to the correctional authorities together with my reasons for sentence.
Ancillary Orders
As ancillary orders, which were requested by the Crown and not disputed by the defence, Mr. Turosky is subject to a mandatory weapons prohibition for life pursuant to [s. 109](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec109_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html). He is prohibited for the rest of his life from having in his possession any firearm, crossbow, restricted or prohibited weapon, prohibited device, or any ammunition or explosive substance. An order shall also be made under s. 487.051 of the Code authorizing the taking of a DNA sample.
___________________________
K. van Rensburg J.
Released: January 25, 2013
---
COURT FILE NO.: 1266/11
DATE: 20130125
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
TIMOTHY TUROSKY
REASONS FOR SENTENCE
K. van Rensburg J.
Released: January 25, 2013
minicounsel