Court File and Parties

COURT FILE NO.: 15-G1023 DATE: 2016 0628

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Colleen Liggett for Her Majesty the Queen

- and -

SCOTT JOHN HARQUAIL Sarah Starkie, for Scott John Harquail

HEARD: June 23, 2016

McNAMARA R.S.J.

REASONS FOR SENTENCE

[1] Mr. Harquail pled guilty before me on May 11, 2016 to one count of possession of crack cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act, and three counts of trafficking crack cocaine contrary to section 5(1) of the Act.

[2] At the time of entering his pleas an Agreed Statement of Facts was filed as Exhibit 1, and counsel advised they had a joint position as to sentence, 30 months or 900 days incarceration, in total for all counts. They also advised they wished to put the matter over to June 23, 2016 in order to discuss an outstanding issue, specifically the credit Mr. Harquail should receive for pre-trial custody.

[3] Firstly with relation to the joint submission as to the gross sentence, having reviewed the facts and having heard the submissions of counsel, I am satisfied that the joint recommendation as to sentence is entirely appropriate and not inconsistent with the fundamental purposes and principles of sentencing as set out in section 718 to section 718.2 of the Code.

[4] I turn now to the credit for pre-trial custody based on the submissions of counsel made on June 23rd. Counsel agree that Mr. Harquail has spent a total of 491 days in custody prior to June 23rd, and has now been in custody 6 additional days to today’s date for a total of 497 days.

[5] Both counsel also agree that based on the Supreme Court of Canada Decision in R. v. Summers, and the cases that followed that Decision, an individual is entitled to an enhanced credit of 1.5 to 1 for each day in pre-sentence custody, and that that is the norm and not the exception. In this case, assuming my math is correct, that would result in a credit for pre-sentence custody to date of 745 days.

[6] It is the submission of Ms. Starkie, counsel for Mr. Harquail, that in addition to that 1.5:1 credit there should also be enhanced credit to compensate for the harsh conditions Mr. Harquail has had to endure while in custody. It is her submission that on the current state of the law it is open to the Court to allow a sentence to be further mitigated in appropriate circumstances. One of the cases cited in support of that proposition is the Decision of Hill J. of this Court in R. v. Tulloch, 2014 ONSC 6120. Towards the bottom of page 16 of that Decision and carrying over to the top of page 17 Justice Hill states:

At paragraph 73 of the Summers decision, the Court observed: “Indeed, individuals who have suffered particularly harsh treatment, such as assaults in detention, can often look to other remedies, including under s. 24(1) of the Charter.” I note that in using the word “including” that the Court envisioned that other remedial avenues may exist to recognize the mitigatory impact of particularly harsh conditions in a detention facility. This is entirely consistent with the approach in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206, at paras. 2 to 5 and 53 to 55, accepting that, with or without resort to s. 24(1) of the Charter, sentencing courts may mitigate sentence in instances of State misconduct, including abusively oppressive treatment. Certainly, systemic departure from the international convention as apparently exists here, respecting the triple-bunking detention, is deserving of recognition as having special mitigatory effect. Mr. Falls quite fairly agreed with this and such recognition will be assessed.

[7] Counsel for the defence submits there are a number of factors in this case as to why the Court should mitigate sentence further to reflect treatment that Mr. Harquail received at the hands of the State.

[8] First there were a number of days during his incarceration that Mr. Harquail was in lockdown, either for all or part of the day. The evidence would suggest he spent approximately 14.9% of his time in full or partial lockdown. There were also a number of days when he was not provided with any “fresh air” time. The evidence establishes that a large portion of these days occurred as a result of staff shortages and this is an institutional failure on the part of the State.

[9] An even bigger factor in her submission, however, is the poor medical treatment Mr. Harquail received during his incarceration and in particular the neglect of a significant dental issue.

[10] Ms. Liggett in her very balanced submissions didn’t seriously dispute that it was open to the Court, in the unique circumstances of this case, to allow some additional mitigation in sentence. In her submission, the lack of attention to Mr. Harquail’s legitimate dental needs, could amount to harsh treatment sufficient to justify some mitigation.

[11] In my view the evidence clearly discloses that Mr. Harquail was indeed subject to lockdown on a significant number of days, although as conceded by the defence the number of lockdown days and duration were not as significant as in some of the other cases. I accept that sporadic lockdowns are a reality of remand facilities, but in the words of Justice Hill “What does become a concern is systemic causation and acceptance of such phenomenon.” That is particularly so where, as here, the majority of lockdowns have as their origin staff shortages. It must be remembered that someone in pre-trial custody is presumed innocent and there is no evidence that Mr. Harquail was a problem prisoner, in fact the evidence is to the contrary. They are also relevant factors in looking at the lockdown issue.

[12] I agree, however, that the greater issue in this case is the harsh treatment he received for his significant dental issues.

[13] These issues arose in early March of 2015 when he first complained of significant dental problems. By May of 2015 they had reached a point where the Detention Centre’s in-house doctor advised that Mr. Harquail needed urgent dental care. On June 18, 2015 he finally saw a dentist at which time 2 teeth were extracted and it was noted in the records he was to return for 2 further extractions. As a result of a series of misadventures, that no one suggests are deliberate, Mr. Harquail is still waiting for that dental work one year after the initial extractions. He has been on pain medication throughout to help manage the discomfort. This is an unacceptable situation, particularly in an individual who has addiction issues.

[14] I might add on the medical side of things, that there is also an unexplained absence of follow up treatment, and specifically testing on Mr. Harquail’s liver, as a result of his being diagnosed with Hepatitis C.

[15] Each of these cases turns on its own facts when examining the issue of whether or not a prisoner has experienced harsh treatment during pre-trial custody such that it amounts to qualitative hardship. In this case I am satisfied that the facts are made out to support that finding. In all of the circumstances I find it appropriate to grant an enhanced credit of 45 days in addition to the 1.5:1 credit.

[16] In sum then the following sentences are imposed. Starting with Count 1, 30 months or 900 days; Count 4, 30 months or 900 days concurrent; Count 8, 30 months or 900 days concurrent; and Count 11, 30 months or 900 days concurrent.

[17] From the total of 900 days there will be a deduction of 790 days that reflects the credit of 1.5:1 plus an additional 45 days’ credit as reviewed in these Reasons.

[18] I also make the following ancillary orders: There will be an Order that you provide a sample of your DNA and there will also be a section 109 Weapons Prohibition which is mandatory upon conviction in this case. Finally, there will be an Order for Disposition of Property which I have signed this day in accordance with the approved draft.

[19] Finally Mr. Harquail is granted an extension of time to pay the Victim Surcharge of one year from the date of his release.

[20] I would like to express my gratitude to both counsel for their helpful submissions on this Sentencing Hearing.

Mr. Justice James E. McNamara Released: June 28, 2016