Court File and Parties
COURT FILE NO.: CR-12-01908G DATE: 20160831
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – RICKY DESOUSA Defendant
Counsel: Jennifer Gleitman, for the Crown Stephanie Boydell and Kerry P. Evans, for the Defendant
TRIAL HEARD: February 29, March 1-4, 7, 8, 10, 15-17, 2016 SENTENCING SUBMISSIONS HEARD: June 8, 2016
REASONS ON SENTENCE
GILMORE J.:
Overview
[1] Mr. DeSousa was charged with attempting to murder Detectives Frank Abreu and Doug Bedford while committing an aggravated assault. He was also charged with failing to stop his vehicle in the course of a police pursuit and aggravated assault of Detective Abreu in the course of his duties.
[2] After an 11 day trial I convicted Mr. DeSousa of two counts of aggravated assault with respect to Detectives Abreu and Bedford and one count of evading police during the course of a pursuit pursuant to s. 249.1 (2) of the Criminal Code. The charge of aggravated assault of a police officer pursuant to s. 270.02 was stayed based on the principles in R. v. Kienapple (1974).
[3] Prior to trial, Mr. DeSousa pleaded guilty to eight counts of robbery. An agreed statement of facts with respect to each of those robberies was filed at the sentencing hearing and marked as Exhibit 1.
[4] In the course of my reasons delivered on April 28, 2016, I accepted the officers’ evidence as reliable and credible. While I did not find that the circumstantial evidence could support convictions for attempted murder, I found that Mr. DeSousa, in a reckless attempt to escape a rolling block takedown, did whatever was necessary including aggressively driving at anything or anyone standing in his path. I found it could be logically inferred that Mr. DeSousa foresaw the probable consequences of his actions; that is, he knew that someone would likely get hurt or possibly killed. I further found that Mr. DeSousa was aware he was being pursued by police and continued to evade police after he escaped the rolling block takedown.
[5] With respect to the robberies, Mr. DeSousa has admitted that between November 23, 2010 and December 10, 2010 he committed eight convenience store robberies. The facts with respect to the robberies are similar in that Mr. DeSousa would generally attend at the convenience store after it was closed or late in the evening and approach the attendant brandishing a knife and demand money from the till. The losses sustained by each of the convenience stores range from approximately $100 to $600. In one instance, no money was taken. On two occasions the convenience store attendant was injured by Mr. DeSousa.
Pre-Sentence Report
[6] Mr. DeSousa was interviewed by a probation officer with respect to a pre-sentence report dated, June 6, 2016. The report notes Mr. DeSousa is 39 years old and the youngest of six siblings. Mr. DeSousa quit school in grade 10 and began using and trafficking in cannabis at the age of 15. He progressed to the use of cocaine by the age of 18. He married Caterina DeSousa when he was 19 and they have one son Tyler who is 18. Tyler has expressed that he wishes to have more contact with his father but he finds visiting his father in jail upsetting and emotionally difficult.
[7] Mr. DeSousa separated from Caterina and began a relationship with Chantelle Potter. Mr. DeSousa and Ms. Potter have two children aged 6 and 9 respectively. Ms. Potter indicated that she and Mr. DeSousa used cocaine together including one occasion during her pregnancy in 2009 which resulted in a miscarriage. While Ms. Potter attempted to blame the miscarriage on Mr. DeSousa, the report states that the toxicology reports related to her miscarriage indicated positive traces of crystal meth. There is no indication that Mr. DeSousa either used or trafficked crystal meth. Ms. Potter and Mr. DeSousa are no longer together although the children have telephone conversations with their father approximately twice a month.
[8] Mr. DeSousa takes medication for a previous suicidal ideation. He maintains weekly contact with his mother and is closest with his oldest sister Maria.
[9] Mr. DeSousa has worked in several jobs in construction, tow truck driving and landscaping over the years, however, his main source of income has generally been from the sale of drugs. Mr. DeSousa was asked about his drug use and explained that he was not addicted to drugs but had a drug habit. He justified his offences as the means to support that habit. Mr. DeSousa advised the probation officer that he visits a psychiatrist every three months while in jail. He also described these offences as a “bad bender” following his breakup with his most recent common-law spouse. While he describes himself as a family oriented individual who fell into the wrong crowd, he acknowledges his poor choices and peer group selection and wishes to live near his sister Maria and start over when released from jail.
The Victim Impact Statement
[10] Detective Doug Bedford read out a victim impact statement in court. As a judge involved in many criminal court cases over the last eight and a half years I can say this was probably one of the more compelling victim impact statements that I have heard. The defence urged the court to disregard certain portions of the victim impact statement as going beyond the acceptable scope of such statements. However, I found that the victim impact statement was appropriate in the circumstances given Detective Bedford’s position in the community as an experienced police officer and the impact that Mr. DeSousa’s actions had on his life both from the perspective of his career and his family. Detective Bedford’s emotional expression of the effect of these crimes on him was particularly well articulated as follows:
Richard, I may be a police detective, but I am also a spouse, father, son, friend, and colleague. Your actions not only affected me but they also affected the people I love and care about. Explaining to my family that my life had been threatened and that I could have been seriously injured or killed in the line of duty is not something that I had ever hoped to do. You see, when I go to work my family isn’t sure that I will return home unharmed anymore and for that uncertainty I place responsibility on you. Witnessing the attempt of serious injury or death on my partner Detective Abreu is also something I thought I would never have to endure. I have attended far too many police funerals over the years and but for the grace of God I am thankful that I didn’t have to say goodbye to another one.
The Report and Evidence of Rick Camman
[11] Mr. Rick Camman is the Manager of Security and Investigations at the Central East Correctional Centre. He was asked by the defence to prepare reports with respect to lockdown periods that affected Mr. DeSousa during the period of his pre-trial incarceration. Mr. DeSousa was admitted to Central East Correctional Centre on December 11, 2010 and continues to be incarcerated there. He was incarcerated at Central North Correctional Centre between February 29, 2012 and June 1, 2012. The lockdown periods set out by Mr. Camman do not include this period. As well it should be noted that Mr. DeSousa was housed in segregation for 558 days at his own request.
[12] Mr. Camman explained that inmates are released from their cells to a common day room for approximately eight hours a day. Therefore any period of lockdown refers to this eight hour period, as the remaining 16 hours of the day the inmates are housed in their cells.
[13] When a unit is in lockdown there may be no access to visits phones or showers. There is also no day room or yard (outdoor time) during the lockdown. If the lockdown is for less than eight hours there may be access to the above mentioned privileges. Standard cells are seven feet wide by 15 feet long and contain two bunk style beds. In his first report, Mr. Camman noted that Mr. DeSousa was triple bunked for a total of four days during his incarceration and had a single cell for a total of 78 days.
[14] Mr. Camman noted that inmates of CECC have the following programs available to them: chaplaincy, social workers, psychology, addiction counselling, teachers, library, Alcoholics Anonymous, Narcotics Anonymous, native programing, and income tax support. There was no information as to whether Mr. DeSousa had attended any of these programs but Mr. Camman commented that access to such programs is not available during any period of lockdown.
[15] Mr. Camman’s first report was current to May 31, 2016. During that period the unit in which Mr. DeSousa was housed was locked down for less than six hours on 336 occasions and for more than six hours on 41 occasions. The chart prepared by Mr. Camman indicated the duration of each lockdown and the reason for the lockdown. It can be fairly stated that the majority of lockdowns were due to staff shortages.
[16] Mr. Camman also explained that lockdowns do not apply to segregation as an inmate housed in segregation is subject to a different type of program than those within the general population. An inmate housed in segregation is considered in lockdown at all times.
[17] Mr. Camman’s second report dated August 30, 2016 took into account the period of June 8th to August 18, 2016. During that period there were 31 lockdowns which lasted less than six hours and six lockdowns which lasted more than 6 hours. Mr. DeSousa was triple bunked for one day during this period. The total lockdown time was 142.5 hours or 17.8 days at eight hours per day.
[18] During this period the jail has changed its schedule such that inmates are unlocked at 7:00 a.m. each day and locked down for the night at 7:00 p.m.
Evidence of Michael DaSilva
[19] Mr. DaSilva is Mr. DeSousa’s brother-in-law who is married to his sister Maria. Mr. DaSilva has visited his brother in-law in jail regularly. He owns a construction company in Markham and plans to hire Mr. DeSousa on his release from jail. Mr. DaSilva does construction work mostly for acute care hospitals. His hope is that Mr. DeSousa would fill a labour job initially and then he would assist Mr. DeSousa in obtaining an apprenticeship in a specific trade.
[20] Mr. DaSilva owns a furnished apartment in a building next to his home and testified that Mr. DeSousa is welcome to live in that apartment. He is also prepared to assist Mr. DeSousa in any counselling he may need for substance abuse. Mr. DaSilva and Mr. DeSousa have been working on this plan for approximately three years. He feels that his brother-in-law has made a complete about face. When he was first incarcerated he was very depressed and suicidal. As a result of spiritual meditations and acceptance of his wrongdoing and actions, he has become remorseful and wishes to give back to the community by discouraging young people from following his same path. Mr. DaSilva believes that his brother-in-law’s remorse is genuine in that Mr. DeSousa has told him that he wishes that he was the one that had been shot in the head rather than the passenger in his van. Mr. DaSilva told the court that his wife Maria, Mr. DeSousa’s sister, is in agreement with all aspects of the proposed plan.
The Relevant Principles of Sentencing
[21] Section 718 of the Criminal Code sets out the fundamental purpose of sentencing, the objectives of which are:
a. to denounce unlawful conduct; b. to deter the offender and other persons from committing offences; c. to separate offenders from society, where necessary; d. to assist in rehabilitating offenders; e. to provide reparations for harm done to victims of the community; and f. to promote a sense of responsibility in offenders and acknowledgement of the harm done to the victims and to the community.
[22] There is no doubt that the most important sentencing principles in this case are general and specific deterrence and denunciation. In addition, it is important in this case for the court to consider the issue of totality and proportionality given that the offences for which Mr. DeSousa was convicted arise out of the same circumstances and in occurred in rapid succession.
[23] It is also clear from the pre-sentence report that Mr. DeSousa has a previous record that is, in part, relevant and close in time to the robbery offences. The first entry in Mr. DeSousa’s record is from November 27, 2006, for possession of a scheduled substance for which he received a six-month conditional sentence. The next entry is August 21, 2007, for one count of theft under $5,000 and one count of fail to comply with recognizance. Mr. DeSousa received time served (7 days) and probation of 18 months on the theft under and a suspended sentence and probation of 18 months concurrently on the fail to comply. The next entry is October 7, 2008, for one count of theft over $5,000 and one count of fail to comply with recognizance. Mr. DeSousa received a concurrent suspended sentence and two years’ probation on both counts. The final entry is November 2, 2009, for three counts of robbery. Mr. DeSousa received a sentence of 12 months on each count of robbery concurrent with consideration of 73 days of pre-trial custody.
The Crown’s Position on Sentence
[24] The Crown’s submissions focussed on the gravity of the factual circumstances leading to the aggravated assault and evade pursuit convictions and the fact the victims were police officers. The Crown made reference to numerous incidents within York Region over the last nine years where officers had been killed or been injured in the course of their duties.
[25] The Crown reminded the court of Mr. DeSousa’s previous and escalating convictions and most particularly the 2009 conviction for three robberies which was close in time to the eight robberies which formed the subject of Mr. DeSousa’s guilty plea.
[26] The Crown submitted that convenience store operators are often victims of robbery and should be considered as a class of persons in society who are vulnerable.
[27] Any injuries suffered by Mr. DeSousa should not be relevant in this case nor form any consideration with respect to a reduction of punishment. Any injuries suffered by Mr. DeSousa were caused by his own ill-advised decisions and behaviour.
[28] Given the important considerations of general and specific deterrence and denunciation the Crown seeks consecutive sentences of one year on each of the robbery counts or eight years.
[29] With respect to the remaining counts, the Crown submits that the sentence on those three counts should be concurrent because they arise out of the same circumstances and occurred in rapid succession. This takes into account the principle of totality.
[30] The Crown submits that the appropriate sentence with respect to those convictions would be seven years. The Crown also seeks ancillary orders of a lifetime weapons prohibition and a DNA sample on the primary grounds.
[31] The Crown concedes that Mr. DeSousa had spent 2008 days in pre-trial custody as of the date of sentencing submissions (June 8, 2016). Mr. DeSousa should therefore receive a one and half to one credit for pre-trial custody. This would result in total pre-trial custody credits of eight years and four months up to and including June 8, 2016.
Submissions of the Defence
[32] The defence urges this court to accept Mr. DaSilva’s evidence that Mr. DeSousa has gone through a form of transformation while in custody. He has progressed from depression and suicidal ideation to a person with a plan for work, living arrangements and giving back to the community upon his release.
[33] The defence submits that Mr. DeSousa’s own injuries (a broken nose and a shot off finger) should be considered as well as the fact that the offences were fuelled by Mr. DeSousa’s addiction to drugs. The defence offers the submission on drug addiction not as an excuse but an explanation for Mr. DeSousa’s motivation.
[34] Mr. DeSousa has pleaded guilty and taken responsibility for the robbery offences. With respect to the remaining three convictions, the defence submits that there were triable issues given the findings of the court. The defence reminds the court that the case does not involve pre-meditation or targeting. Mr. DeSousa was surprised when the rolling block takedown occurred and he made a judgment that night that was wrong in law but one that he made nevertheless. Mr DeSousa’s reaction was one of panic and his attempts to escape the police were the result of in-the-moment and ill-advised decisions on his part fuelled by his drug addiction.
[35] The defence requests that the court disregard much of Detective Bedford’s Victim Impact Statement because it is inappropriately directed towards Mr. DeSousa personally in a judgmental manner. Such commentary should be disregarded by the court for sentencing purposes.
[36] The fact that the victims are police officers executing their duties should not elevate the sentencing process to the standard the Crown is seeking. The officers did not suffer any injuries and the findings in this court’s judgment did not attribute Detective Abreu’s injuries to Mr. DeSousa. This case is different from those in which an accused deliberately targets an individual officer and wounds or maims the officer.
[37] The defence position is that the robberies should attract a concurrent sentence of five to seven years which would take into account proportionality and totality. A further sentence of two years and six months concurrent on the remaining three convictions would result in a global sentence of between seven and a half and nine and a half years.
[38] The defence agrees that while deterrence and denunciation must be the focus of the court in a sentencing of this nature, the court is not prevented from adverting to the possibility of rehabilitation. Mr. DeSousa has demonstrated to the court that there are rehabilitation prospects for him. He has supports in the community and he is a different person from the angry and drug addicted man who went to jail in 2010. The sentence sought by the Crown is so crushing that it makes rehabilitation an unlikely possibility.
Analysis and Range of Sentence
[39] There are several aggravating factors which must be considered when fashioning a sentence appropriate to the circumstances in this case:
Aggravating Factors
a. The victims of the robberies were all vulnerable convenience store owners or employees who were alone at the time. b. In all but two of the convenience store robberies Mr. DeSousa brandished a knife or a weapon which looked a knife. c. In two of the robberies the convenience store operators suffered injuries. d. The victims of the aggravated assault were police officers. While fortunately in this case no injuries occurred, the fact is that Mr. DeSousa was reckless and willfully blind as to whether they could have occurred. e. The police officers in this case were executing their duty in a safe manner and according to police protocol. That is, they chose a rolling block takedown as opposed to a police pursuit for the purposes of public safety. Mr. DeSousa knew he was being taken down by police but refused to cooperate and instead engaged in irresponsible and dangerous conduct. f. Mr. DeSousa has a recent and related criminal record for robbery. g. Mr. DeSousa explains his actions either as a result of his drug addiction or what he describes as a “bender” following a breakup with his common-law spouse. I do not view either of these explanations as mitigating. Mr. DeSousa, starting on November 23, 2010, engaged in a deliberate course of conduct to satisfy either his own emotional or physical needs with complete disregard to others. h. The Victim Impact Statement of Detective Bedford makes it clear that Mr. DeSousa’s reckless and ill-advised actions have had a significant and ongoing effect on the officers involved. i. Mr. DeSousa used his parent’s car to effect the robberies without their permission. The same vehicle was involved in the rolling block takedown. The vehicle was no doubt damaged beyond repair. Mr. and Mrs. DeSousa Sr. are also innocent victims of these incidents.
[40] With respect to mitigating factors they are as follows:
Mitigating Factors
a. Mr. DeSousa pleaded guilty to all of the robberies prior to trial. b. The remaining matters contained triable issues and findings that were required to be made by this court. c. Mr. DeSousa has the support of his sister and brother-in-law with respect to employment, residence and ongoing counselling. He is very fortunate to have this support and I doubt it would be available to him unless he had made the significant changes testified to by Mr. DaSilva. d. I accept that Mr. DeSousa has used his time in custody to reflect on his actions and decide to make changes in his life. That bodes well for him and for society. However, rehabilitation cannot be the primary consideration for this court. It can only be, in the face of these very aggravating circumstances, a lesser consideration but a consideration nonetheless.
[41] In terms of range of sentence, the Crown requests that the court consider R. v. Jiwa, 2011 ONSC 4071, a case in which an accused was sentenced to 12 years in jail for circumstances in which the accused backed into an officer’s unmarked car. The officer was caught between the two cars and crushed to death. Mr. Jiwa’s car was rammed by police at which point he left the car and ran from the scene. The officer involved left three teen-aged children and a wife who suffered serious psychological injuries as a result of their father and husband’s death.
[42] In R. v. Phillips, 1999 Carswell Ont 2351 OCA, an officer in pursuit of an accused was stabbed in the leg and died from loss of blood before he could be taken to hospital. The accused was convicted of second degree murder and sentenced to life in imprisonment with no eligibility of parole for 18 years; the period of parole eligibility was reduced to 15 years on appeal.
[43] In R. v. Douglas, 1986 CarswellOnt 6095, two accused who were brothers, pleaded guilty to aggravated assault on a police constable in Toronto. The injured officer was not able to resume his duties for three months. The court considered an aggravated assault of a police officer acting in the course of his duties to be an attack against the community and its laws. The accused who stabbed the officer was sentenced to jail for a term of five years. The accused had a record of two assaults and an attempt to resist arrest.
[44] This court must also consider the principle of totality given the nature and circumstances of the offences before the court. In R. v. Perry, 2012 ONCA 171 the Ontario Court of Appeal varied a sentence when an accused plead guilty to several criminal offences including robberies and break and enters involving a disguise and firearms. The accused was sentenced to 22 years imprisonment consecutive to a previous seven year sentence the accused was already serving. The sentence was reduced to 25 days short of 15 years imprisonment taking into account the six years that remained in respect of the sentence the accused was serving. The court found that the sentence offended the principle of totality and could not be regarded as anything but crushing so as to destroy any hope of rehabilitation.
[45] Perry cited the Supreme Court of Canada case R. v. M. (C.A.), [1996] 1 SCR 500 SDC in which the court said:
In discussing the effect of the totality principle is to require a sentencer who has passed a series of sentences each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences to review the aggregate sentence and consider whether the aggregate sentence is just and appropriate.
[46] The maximum sentence for aggravated assault pursuant to s. 268(2) of the Criminal Code is 14 years. All of the cases provided by counsel involve either police officers or individuals who were injured as a result of an aggravated assault. This case is different in that, while Mr. DeSousa was reckless and willfully blind as to whether or not he injured the officers, no officers were actually injured by him. Given all the circumstances and the case law, I find that a sentence of five years concurrent on the aggravated assault and evasion of police is appropriate. I find it is appropriate for the following reasons:
a. The police officers did not suffer injuries directly attributable to Mr. DeSousa. b. I do not take into account Mr. DeSousa’s injuries. I agree with the Crown that the events of the day in question were solely instigated by Mr. DeSousa and therefore any injuries he suffered should not be considered a form of mitigating factor. c. The sentence is in the higher range for an aggravated assault taking into account the fact that these were police officers engaged in the execution of their duties. d. The sentence reflects the impact that this incident clearly had on the officers at the time and thereafter, as illustrated by Detective Bedford’s Victim Impact Statement. e. The sentence takes into account Mr. DeSousa’s record and the reckless and dangerous behaviour in which he engaged as found in this court’s April 28, 2016 judgment. f. The sentence reflects the focus on the principles of general deterrence and denunciation.
[47] Turning to the robbery offences I find that the sentence proposed by the Crown is reasonable in all the circumstances. While Mr. DeSousa gets credit for having pleaded guilty to these offences they were close in time to the three previous robberies on his record and they involved a vulnerable class of persons, namely convenience store operators or owners.
[48] In addition I consider the following factors with respect to the length of sentence and the fact that the sentences are consecutive to one another.
a. In two cases convenience store operators were injured in the course of the robbery by Mr. DeSousa. b. In all cases except two, the agreed statement of facts indicates that Mr. DeSousa was brandishing a knife or weapon that appeared to be a knife. c. Planning and deliberation was involved in the robberies. d. I have already mentioned that the convenience store owners/operators are what I view to be a particularly vulnerable class of people given their jobs. While there were no victim impact statements from them, this court can infer that being robbed at knifepoint late at night would have had a significant impact on each of these individuals.
[49] Therefore taking into account all of the factors mentioned above and the case law I sentence Mr. DeSousa to a global sentence of 13 years imprisonment. Eight years consecutive on each of the robberies and five years concurrent on the remaining counts but consecutive to the eight years for the robberies.
Pre-trial Credits
[50] The Crown and defence agree that as of June 8, 2016, Mr. DeSousa’s total pre-trial credits calculated on a 1.5 to 1 ratio would be eight years and four months. Given that my reasons were not delivered until today, August 31, 2016, there will be an additional amount of pre-trial credit totaling 84 days including today. At a 1.5 to 1 ratio that results in an additional amount of pre-trial custody credit of 126 days bringing the total to eight years and eight months.
Jail Conditions
[51] The defence submits that based on Mr. Camman’s reports a further nine months of pre-trial credit should be given because of the lockdown conditions while Mr. DeSousa was in jail prior to trial.
[52] Based on Mr. Camman’s calculations lock down time up to May 31, 2016 totalled 1490.75 hours. He divided this by 8 hours per day (the non-lockdown time per day) to come up with 186.3437 days of lockdown. Defence counsel divided this by 31 days which equals six months.
[53] The defence relied on Mr. Camman’s second report dated August 30, 2016 to demonstrate that nothing had changed at the jail. The change in schedule means it is more expensive for inmates to make phone calls. The situation is deplorable and out of the control of Mr. DeSousa.
[54] Given that the situation has not improved and in fact worsened, the defence seeks a further three months based on Mr. Camman’s second report, for a total additional credit of nine months.
[55] As indicated earlier in these reasons, it is clear that the majority of lockdown time was due to staff shortages which are clearly circumstances beyond Mr. DeSousa’s control. Indeed, and it is conceded by both counsel, there was no evidence that any of the reasons for lockdown had to do with Mr. DeSousa or his behavior.
[56] The Crown does not agree with the defence position. According to the Crown, Mr. Camman’s calculations do not adequately take into account the fact that inmates are in their cells for 16 out of 24 hours a day. Therefore, if Mr. Camman’s calculation of 186 days in his first report is divided by 24 hours, it would result in a possible credit of 62.1 days. However, the Crown goes further and submits that should be divided in half given that Mr. DeSousa has already received the pre-trial credit of 1.5 days. The Crown’s position did not change as a result of Mr. Camman’s second report. The Crown submitted that a global credit of 60 days should be given as a result of the information contained in Mr. Camman’s two reports.
[57] In R. v. Summers, 2014 SCC 26, the Supreme Court recognized the quantitative and qualitative ways in which pre-trial custody is more onerous than post-sentencing custody. Regarding the qualitative rationale for enhanced credit, the court stated:
Remand detention centres tend not to provide the educational, retraining or rehabilitation programs that are generally available when serving a sentence in corrections facilities. Consequently, time in pre-trial detention is often more onerous than post-sentence incarceration. As Cronk J.A. noted in this case, overcrowding, inmate turnover, labour disputes and other factors also tend to make pre-sentence detention more onerous (para. 28).
[58] The court went on to comment on the effect of the 1.5:1 credit cap on offenders who are subject to harsh conditions in pre-trial custody, stating:
This means that two offenders, one of whom lost the opportunity for early release and parole, and a second who, in addition to losing those opportunities, was also subject to extremely harsh conditions, will likely both have credit assigned at a rate of 1.5 to 1. The unavoidable consequence of capping pre-sentence credit at this rate is that it is insufficient to compensate for the harshness of pre-sentence detention in all cases. However, this does not mean that credit should be scaled back in order to "leave room at the top" of the scale for the most egregious cases. A cap is a cut-off and means simply that the upper limit will be reached in more cases. It should not lead judges to deny or restrict credit when it is warranted.
[59] In R. v. Doyle, 2015 ONCJ 492, 23 C.R. (7th) 325, Green J. considered what the Supreme Court might have meant by the phrase “particularly harsh treatment”. Defence counsel argued that the offender faced particularly harsh treatment, such that he should be afforded additional credit against his sentence. The offender was detained at the Toronto South Detention Centre, and was subject to approximately 70 days of lockdown. The offender also suffered from Type I Diabetes and effective management of his condition was dependent on his diet and the timely injections of insulin. This latter requirement fell entirely to TSDC staff. The sentencing judge found that during his time in pre-trial custody, the offender experienced periods of physical discomfort and pain associated with diabetes management protocol that failed to adequately respond to his medical needs, and that his own conduct did not significantly contribute to the adverse consequences he suffered.
[60] Green J. drew a number of conclusions from Summers, at para. 37:
• First, "harshness" is not a fixed or immutable standard. Rather, it is case-specific variable measured not only by an objective appraisal of remand conditions but, to a large degree, by the relative vulnerability or resilience of the offender at issue. As put directly, at para. 29, the "impact" of qualitative hardships "varies depending on the particular offender's needs, character and disposition". This, inevitably, involves a "fact-dependent and discretionary exercise". • Second, mitigation of sentence for reasons of oppressive, unsafe or traumatizing remand conditions does not depend on a finding of constitutional violation. The Court's deliberate use of the word "including" in reference to the availability of Charter-based relief makes clear that a remedy for pre-trial hardship does not require proof of a constitutional transgression. The Court's single and unqualified example of a remedy-animating event reinforces this construction, as earlier discussed. • Third, where the requisite "harsh treatment" is established, relief by way of sentence reduction is neither rare nor unusual. Rather, offenders who crest this threshold "can", as the Court directs, " often look to other remedies" than those afforded through s. 719 of the Code. • Finally, the standard of " particularly harsh treatment" is neither an insurmountable or even daunting hurdle. The Court uses these same words - "particularly harsh" - to both introduce and anchor its reasoning in Summers. Proof of a meaningful personal nexus to pre-trial hardships undoubtedly falls to an offender seeking supplementary relief. However, the Court's opening language make clear, at para 2, its unanimous recognition, as a matter of fact, that "conditions in remand centres tend to be particularly harsh ". In short, exceptionality is not a pre-condition to meeting the test for mitigation founded on qualitative hardship as articulated in paragraph 73.
[61] Green J. went on to consider that the reasoning in Summers regarding the effect of pre-trial hardship on sentence mitigation is consistent with the Supreme Court’s earlier decision in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206. The court considered that the conditions of the immediate offender were “neither routine nor commonplace”, as the institution’s management of his diabetes left him frequently sick and the lockdown of the offender on at least one quarter of his days in remand custody was “an oppressive and here unexplained form of pre-sentence punishment”, which further interfered with the proper management of his diabetes (para. 53). He concluded that the offender’s experience in pre-trial custody amounted to “particularly harsh treatment” that justified a remedy by way of a modest mitigation of sentence. He did not specify a precise amount of time credited, but rather sentenced the offender to a global sentence of 22 months on each count, concurrent, less credit for time in pre-trial custody at the 1.5:1 rate.
[62] In R. v. Bedward, 2016 ONSC 939, counsel for the offender argued that he should receive additional mitigation of his sentence based on the personally harsh conditions he endured during his pre-sentence detention, specifically, the protracted lockdown periods at the Toronto South Detention Centre. The offender deposed that he had been in lockdown in excess of 225 days. O’Marra J. considered Summers and that “exceptionality is not a pre-condition to meeting the test for mitigation founded on qualitative hardship” (para. 19). He stated, at para. 22:
The fact that an inmate has experienced lockdowns certainly does not lead automatically to any additional mitigation of their ultimate sentence. However, a prolonged lockdown that is unrelated to the misconduct of the accused before the court may constitute harsh conditions that merit some mitigation of sentence. A lockdown is not the norm within the institution and it should not be viewed as such.
[63] O’Marra J. found that the significant number of days in lockdown amounted to harsh conditions and awarded enhanced credit of 3 months in addition to the 1.5:1 ratio that counsel agreed upon.
[64] In R. v. Shah, 2016 ONSC 2651, counsel for the defence argued that the offender should be granted 90 days of credit beyond the pre-trial credit permitted under the Code and in Summers on the basis of numerous lockdowns during his period of pre-trial custody. Counsel stated that out of 800 days in custody, 190 were lockdown days, due to staff shortages or labour disputes. Quigley J. cited Doyle and Bedward, and stated that:
[L]ockdowns are an inevitable aspect of life in pre-trial custody facilities, which will never be like a weekend at the Holiday Inn. The concern should be whether lockdowns are inordinate, or whether the particular circumstances of the accused are such that the lockdown creates a disproportionate and harsh effect on that offender (para. 61).
[65] Nevertheless, he granted 30 additional days of credit to account for lockdown circumstances.
[66] It is clear that courts have taken various views with respect to how to characterize the meaning of “harsh conditions” as set out in Summers. My view tends to accord with that expressed in Bedward. Lockdowns should not be considered the norm while one is in custody. In particular, where such lockdowns have nothing to do with the conduct of the accused person (as in this case) it cannot be the case that such exceptional circumstances should form part of the 1.5:1 credit particularly where the result of the lockdown may mean that an inmate is denied a shower, visitors and access to a phone and counsel for extended periods.
[67] The task then becomes how to quantify the exception set out in Summers where such harshness is found to exist. I should start by stating that I do not agree with the defence that nine months credit is appropriate. While the conditions were difficult and beyond Mr. DeSousa’s control, there was no evidence that Mr. DeSousa was, for example, subject to medical mismanagement as in Nasogalauk.
[68] I agree with the Crown that simply converting the hours of lockdown into days of credit is not a reasonable way of determining the credit. In my view a credit should be given nonetheless, if for no other reason than the fact that staff shortages in the jail are not a problem created by Mr. DeSousa nor does he have the power to resolve that problem. It is clear that lockdowns largely due to staff shortages are a chronic and continuing problem in the corrections system. A balance of considerations must reflect the fact that while staff shortages at CECC are not the fault of Mr. DeSousa, he is, after all, in a detention facility.
[69] Mr. DeSousa will therefore receive a pre-trial credit of an additional 90 days being total pre-trial and pre-sentence credit of eight years and eleven months. Of his global sentence of 13 years he will be required to serve a further four years and one month. He will also be required to give a sample of his DNA and be subject to a weapons prohibition for life pursuant to s. 109 of the Criminal Code.
Justice C.A. Gilmore
Read in Open Court: August 31, 2016
NOTE: As noted in court, on the record, this written judgment is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written judgment that is to be relied upon.
Released: August 31, 2016
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – RICKY DESOUSA Defendant REASONS ON SENTENCE Madam Justice C.A. Gilmore
Released: August 31, 2016