CITATION: R. v. Jefferies, 2017 ONSC 6179
Court File Number 14074/16
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- v –
MYLES JEFFERIES
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE M. FUERST
ON JANUARY 31, 2017 at OSHAWA, ONTARIO
APPEARANCES:
M. Flagg Counsel for the Crown
C. Claxton Counsel for the accused
FUERST, J (Orally)
On August 20th, 2015, Myles Jefferies committed an aggravated assault against Joseph Connor.
On his guilty plea, Mr. Jefferies has admitted that he pushed Mr. Connor, who fell to the ground, and that he then hit and kicked Mr. O'Connor(sic) in the head and ribs while Mr. O'Connor(sic) was on the ground. Mr. Jefferies ran away, leaving a civilian witness to summon help for the unconscious Mr. Connor.
Mr. Connor suffered a brain bleed, as well as severe cuts to his face that required stitches to close. He was hospitalized in intensive care for several days. Weeks after his release, he was re-admitted to hospital where he underwent neurosurgery because of bleeding on both sides of his brain.
At the time of the assault, Mr. Jefferies was 28 years old. His victim was 62 years old.
Mr. Jefferies was arrested on September 5th, 2015. He has been in custody since that date.
Mr. Jefferies has a history of schizophrenia. At the request of his lawyer, he underwent a "not-criminally responsible" assessment at Ontario Shores in the fall of 2016. He was described as medically stable at the time of his admission. As a result of the assessment, he was diagnosed with schizophrenia, polysubstance use disorder and anti-social personality traits. Dr. De Freitas raised the possibility of malingering with respect to Mr. Jefferies' claims of auditory hallucinations, and found that they were more likely than not feigned. Dr. De Freitas concluded that Mr. Jefferies did not have a s. 16 defence available to him.
Mr. Jefferies has been in custody at the Central East Correctional Centre for 515 days. He has spent the majority of that time in segregation. Of the 441 days in segregation, 15 days were the result of a finding of misconduct involving an assault on another inmate, and the remainder were at Mr. Jefferies' request. He testified that he asked to be put in segregation because of his schizophrenia.
Mr. Jefferies committed an unprovoked serious act of violence against an unarmed older man. I agree with Crown counsel that the principles of denunciation and deterrence, both general and specific, apply in determining the appropriate sentence for Mr. Jefferies' offence. Because he is before me as a person with no previous criminal record, rehabilitation is also relevant, although it is more complex because of his mental health history.
The aggravating factors include:
The assault was a brutal and unprovoked attack;
The assault resulted in very serious injury to Mr. Connor;
The assault was perpetrated against a victim in his sixties, who was more than twice Mr. Jefferies' age;
Mr. Jefferies fled the scene in order to avoid apprehension and knowing that his victim was on the ground, bleeding.
In mitigation, I consider that:
Mr. Jefferies pleaded guilty, which is a sign of remorse and acceptance of responsibility;
Although he was found not criminally responsible of another assault in 2007, he does not have a criminal record;
He has a history of mental illness;
He is relatively young, although not youthful.
In all of the circumstances of Mr. Jefferies and his offence, I accept the joint submission that a sentence of 5 years in jail is appropriate.
On behalf of Mr. Jefferies, Ms. Claxton submits that I should award him enhanced credit for his pre-sentence custody beyond one and a half to one, because he has been in segregation, he was subjected to 35 hours of lock downs, he was triple bunked for 11 days, and he was not made aware of programs at the jail. She submits that I have jurisdiction to award enhanced pre-sentence custody credit, separate and apart from s. 24(1) of the Charter on which she specifically does not rely, and absent any constitutional challenge to s. 719 of the Criminal Code, which she has not brought.
On behalf of the Crown, Mr. Flagg opposes the award of enhanced credit beyond one and a half to one.
In R. v. Summers, 2014 SCC 26, Justice Karakatsanis stated, on behalf of the court at paragraph 70,
In determining credit for pre-sentence custody, judges may credit at most 1.5 days for every day served where circumstances warrant.
She explained that this credit could be assigned on the basis of lost eligibility for early release and parole, and to account for the relative harshness of conditions in detention centres. She observed in paragraphs 72 and 73 that while the unavoidable consequence of capping pre-sentence credit at that rate is that it is insufficient to compensate for the harshness of detention in all cases, "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."
Ms. Claxton was unable to refer me to a single appellate court decision that stands for the proposition that I have jurisdiction to award credit beyond one and a half to one, absent a constitutional challenge to s. 719, or resort to s. 24(1). As I have said, she relies on neither. I note that in R. v. Okash, 2015 ONCA 58, the Court of Appeal for Ontario found that the trial judge erred in granting credit for pre-sentence custody that exceeded one and a half to one, which both Crown and defence counsel in that case described as an "illegal" sentence.
Even if I have jurisdiction to award enhanced pre-sentence custody credit, I decline to do so in this case. Mr. Jefferies has spent time in segregation because, as he acknowledged, he chose to assault another inmate, but to a much greater extent, at his own request. There is no evidence before me that the correctional centre denied him his medication, or denied him professional assistance that would have enabled him to function in general population, nor is there evidence that the correctional centre failed to offer him any other alternatives. I found his explanation as to why he went into segregation to be vague and self-serving, especially in light of the content of the assessment report. I am unable to find that Mr. Jefferies suffered from "particularly harsh treatment" that would merit an enhancement of the pre-sentence custody credit beyond one and a half to one.
Mr. Jefferies, please stand. I sentence you to 5 years in jail. I credit you with 25.5 months of pre-sentence custody on the basis of a factor of one and a half to one, for approximately 773 days, leaving a sentence to be served of 34.5 months. I make a DNA Order, a s. 109(2)(a) Order for 10 years and a s. 109(2)(b) Order for life. You can be seated.
Is there anything that needs clarification?
MR. FLAGG: I don't believe so. The only thing we do need to do Your Honour, as a formal thing, is to vacate trial dates which are set for the week of March 6th, as well as an assignment court date of March 1st at 3:00 p.m., please.
THE COURT: Ms. Claxton, anything that needs clarification?
MS. CLAXTON: No, thank you.
THE COURT: I've endorsed, with Crown consent, Mr. Jefferies re-elects to trial by judge alone. He pleads guilty to the offence charged. He is found guilty and a conviction is recorded. He is sentenced to 5 years in jail, less credit for pre-sentence custody of 24.5 months calculated on a one and a half to one basis, leaving a sentence to be served of 34.5 months. There is a DNA Order, a s. 109(2)(a) Order for 10 years and a s. 109(2)(b) Order for life. The dates of March 1st and March 6th, 2017 are vacated.
MR. FLAGG: Court's indulgence, if I may. I just wanted to clarify with Your Honour,...
THE COURT: Sorry.
MR. FLAGG: ...the way I had calculated. I think it....
THE COURT: Twenty-five. I wrote 24.
MR. FLAGG: Yes, indeed. I think the...
THE COURT: Yes.
MR. FLAGG: ...remaining portion of the sentence is 25.5. Is that not the case based on....
THE COURT: Did I get it backwards? In which case, I better correct that.
MR. FLAGG: That's what I wanted to be clear about. Court's indulgence.
THE COURT: I may have written it down backwards, in which case I will certainly correct that.
MR. FLAGG: No, actually I'm sorry. So, Your Honour indicated it correctly. So the amount of credit at 1.5 to 1 from 773 equals 25.4 months. That remains the remaining sentence would be 34.5 months.
THE COURT: Is that correct, Ms. Claxton?
MS. CLAXTON: I'm just looking for my sheet. That is correct.
THE COURT: All right, so it's 25.5 months, which is arrived at on a one and a half to one basis for pre-sentence custody credit and that leaves a sentence to be served of 34.5 months.
MR. FLAGG: Yes, Your Honour.
THE COURT: All right, so we need to do the paperwork. So, do you want to bring it upstairs to me or do you want me to wait downstairs? The victim surcharge wasn't mentioned.
MR. FLAGG: Oh, yes.
THE COURT: I wasn't inclined to impose it given the length of the sentence.
MR. FLAGG: I'm in the Court's hands. As I understand it, it is a mandatory Order under - in an indictable matter, it's $200. It's certainly a matter where the court takes - the Crown, rather, takes no issue if, given the amount of time Mr. Jefferies is going to be in custody, counsel may make submissions about an appropriate length of time to pay, including a - an extended amount of time to pay after Mr. Jefferies is released from custody.
MS. CLAXTON: Mr. Jefferies was receiving benefits which had been grossly reduced as a result of his incarceration, as part of the benefits he was receiving was for housing.
THE COURT: So, if I give him a year to pay. I think that year starts after. Doesn't it Madam Registrar? I just want to make sure how it's worded.
MR. FLAGG: Perhaps, I would submit Your Honour, that the Court has the discretion to order the amount of time, in any event. So, if in this case, Your Honour sees it appropriate to order one year after his release from custody, my submission is that's entirely appropriate, subject to the Court's view.
THE COURT: Can we word it that way on the form?
COURT CLERK: Yes, there's an option to just submit what your sentence is.
THE COURT: So, one year after expiry of sentence.
COURT CLERK: Certainly.
THE COURT: So, I'm sorry, it's a victim surcharge then of $200?
MS. CLAXTON: Two hundred dollars.
COURT CLERK: One year post custodial, Your Honour?
THE COURT: Yes.
COURT CLERK: Thank you.
FORM 2
Certificate of Transcript
Evidence Act, subsection 5 (2)
I, Denise Kemp, certify that this is a true and accurate transcript of the recording of Milia Georgi of R v Jefferies, in the Superior Court of Justice held at 150 Bond Street East, Oshawa, Ontario, taken from Recording No. No.2812-204-20170131-083912-30-FUERSTM.dcr, which has been certified in Form 1 by Milia Georgi.
September 27, 2017
(Date) (Signature of authorized person(s))
Denise Kemp
Certified Court Reporter
Authorized Court Transcriptionist
THIS IS NOT AN ORIGINAL UNLESS SIGNED IN BLUE INK
REPRODUCTION OF THIS TRANSCRIPT IN ANY MANNER IS PROHIBITED WITHOUT PRIOR PERMISSION FROM THE COURT REPORTER
THIS CERTIFICATION DOES NOT APPLY TO THE RULINGS, REASONS FOR JUDGMENT, REASONS FOR SENTENCE, CHARGE WHICH WERE JUDICIALLY EDITED