Court File and Parties

COURT FILE NO.: CR-17-52 DATE: 2019/05/17 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Malcolm Valade

Counsel: André White, Counsel for the Crown Solomon Friedman, Counsel for the accused

HEARD: March 1 and 22, and May 16, 2019

Reasons on Sentencing

LEROY, J.

[1] Malcolm Valade is being sentenced following conviction for intentionally discharging a firearm while being reckless as to the life or safety of another person, contrary to s. 244.2(1)(b) of the Criminal Code. Conviction for this offence carries a mandatory minimum sentence of four years imprisonment.

[2] On September 19, 2018, I released reasons for concluding that having regard to the objectives and principles of sentencing in s. 718 in the particular circumstances of this case, the fit and proportionate sentence is a prison term of twenty months before discount for time spent in pre-trial custody and restrictive bail, to be followed by probation and the ancillary orders – those reasons can be found at 2018 ONSC 5539.

[3] Earlier today, I released reasons for ruling that the mandatory minimum sentence is of no force or effect in accordance with s. 52(1) of the Constitution Act, 1982.

Enhanced Credit – Introduction

[4] Mr. Valade asks to be credited with 586 days (19.5 months) for pre-sentence custody and strict bail conditions. That request contemplates enhanced credit for pre-trial custody detention at a rate of 2:1 to recognize the quantitative and qualitatively harsh conditions of Mr. Valade’s detention at the OCDC as well as credit at the rate of .25:1 for strict bail conditions over a period of 827 days or twenty-seven months.

Applicable Principles

[5] Courts give enhanced credit, at a rate higher than one day for every day of detention, for two reasons. First, statutory rules for parole eligibility and early release do not take into account time spent in custody before sentencing. Therefore, the quantitative rationale recognized that pre-sentence detention almost always needs to be credited at a rate higher than 1:1 to ensure that an offender who is released after serving two thirds of his sentence serves the same total amount of time in jail whether or not he is released on bail. Second, the qualitative rationale for enhanced credit recognizes that conditions in detention centres tend to be harsher than corrections facilities. As a result of these twin rationales, a practice developed over time of granting credit for pre-sentence detention at a rate of 2:1 – R. v. Summers, 2014 SCC 26.

[6] Section 719(3) of the Criminal Code provides that any time in jail should generally be credited day for day. Section 719(3.1) speaks to enhanced credit, generally limited to quantitative reasons.

[7] In the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether enhanced credit should be given, the Court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused – R. v. Duncan, 2016 ONCA 754 at para 6.

[8] A lower rate may be appropriate when detention was the result of the offender’s bad conduct or the offender is likely to obtain neither early release nor parole – Summers paras. 40 and 71. Such is not the case for Mr. Valade.

[9] House arrest subject to limited exceptions such as employment, health care or in the company of surety as part of a conditional sentence is accepted as being both punitive and denunciatory. The limit for a conditional sentence is twenty-four months. Accordingly, time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, like any potential mitigating circumstance, there will be variations in its potential impact on the sentence, and the circumstances may dictate that little or no credit should be given for pre-trial house arrest. The jurisprudence eschews a rigid formula for calculating the amount of credit to be given because there can be such a wide variation in bail conditions, and even house arrest conditions. The amount of credit will depend upon a number of factors, including the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; and the ability of the offender to carry on normal relationships, employment and activity. Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the trial judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code – R. v. Downes, [2006] 79 O.R. (3d) 321 at 29.

Provincial Detention Centre Pre-Sentence Experience

[10] Mr. Valade was imprisoned at the OCDC for 192 days on the charge of reckless discharge of a firearm. Twenty-one days accrued in 2017 arising from breach of release charges after the more egregious issues at the detention center ameliorated. One hundred and seventy-one days accrued between October 25, 2015 and April 13, 2016. The conditions at the OCDC at the time were notoriously harsh. Justice Lacelle made that observation in the sentence ruling in R. v. Hall, 2017 ONSC 3003 at P. 50 – 54 as follows:

The Crown concedes that because the accused was subjected to lockdown on 109 occasions during 2015 alone, some enhanced credit on a qualitative basis is appropriate in this case. This is an appropriate concession in view of the evidence presented, which is that during the entirety of the accused’s pre-sentence incarceration, there was a full or partial lockdown on 228 days, which is roughly 20% of his time in pre-sentence custody. The evidence of Mr. Munro is that for a period of about a year and a half in 2015 and 2016, the number of lockdowns was particularly problematic. Mr. Munro attributes 90-95% of the lockdowns to staff shortages. The lockdowns were not caused by the accused in any way. Mr. Munro’s evidence further indicates that conditions only improved in August of 2016 after significant hiring had taken place to add to the staff at the facility. At the time of his testimony, there had been no lockdowns in 2017.

[11] Given this evidence, along with the evidence that on 60 occasions the accused was triple bunked (19 of those occasions occurred during a lockdown of some duration), Justice Lacelle was satisfied that the accused was subjected to particularly harsh treatment during his pre-sentence custody and that an assessment of credit on a qualitative basis was appropriate.

[12] Justice Quigley made similar observations about similar institutionally based hardships in his reasons in R. v. Prestula, 2018 ONSC 4214 at 20:

These are inhumane conditions. Prisoners are unable to wash or shower or have exercise. They are confined to their cells. This cuts inmates off from their families and increases their sense of isolation. I accept defence counsel’s submissions on this issue that this will have created real hardship and increased anxiety for this offender given his pre-existing medical conditions. It cannot help but have had a compounding effect on his anxiety disorder, as has been noted by Ms. Sott, causing him to effectively become numb and shut down communications to survive the lengthy periods of unrelieved containment.

[13] During the stay at OCDC, Mr. Valade experienced these same conditions and more:

• The detention center was chronically overcrowded and understaffed. He was triple bunked for 64 days (33%) – three men occupying a cell designed for two men with a toilet and two bunks, One of the three was forced to sleep on the floor next to the toilet;
• He experienced 33 days in full lockdown (17%) – 24 of which involved consecutive days resulting in cell confinement throughout the lockdown without access to a shower, telephone, family visits, lawyer visits, recreation or fresh air;
• He experienced 97 days in partial lockdown (50%) during which daily routine and amenities were delayed or denied;
• Release from his cell was delayed on several occasions;
• He was extorted by cohorts for money. He understood the guards knew and did not intervene;
• Staff shortages were routine resulting in regular denial of basic amenities and lockdowns;
• He was denied access to the showers and there were times when there was only cold water available. He understood the guards controlled the hot water supply capriciously;
• He was denied timely access to medical treatment, visits with counsel and family, access to his anti-anxiety medication, communication with the outside world;
• Following a riot in a neighbouring pod, his cell was flooded for days; and
• Frigid conditions inside the prison through the winter when he was forced to use socks as mittens.

[14] None of these conditions were related to Mr. Valade’s behaviour. These experiences were caused by staff shortages and other systemic issues at the OCDC.

[15] Mr. Valade deposed that these experiences affected his mental health. He cites feeling of degradation and humiliation at being denied basic hygiene products and showers, fear of being hustled and threatened by other prisoners, feelings of anxiety when alone for more than an hour, fear and inability to sleep with lights off, mistrust, certain sounds such as pistons and trucks cause severe anxiety and ongoing need for adjustment counselling.

[16] Mr. Valade’s psychological status before and after the incident was fragile. His uncontradicted evidence is that the impact of what he experienced at the OCDC on his psychological well-being sustains. He is a work in progress as counselling continues with Mr. Ben Veilleux.

[17] Mr. White did not take issue with the fact of the experiences and impact. He characterized them as normal, a part of the criminal justice experience and unworthy of enhanced credit. Mr. White suggested that Mr. Valade’s decision to breach bail by contacting his father diminishes the worth of his representations regarding experience and impact. If he was so intimidated by life in OCDC, how could he breach? As I have noted before, father and son had a co-dependent dysfunctional relationship. That said, they had never been separated. One might ask how could he not. The evidence adduced during the sentencing hearing illuminated just how complicated family relationships can be.

[18] Prisoners in the care of the state are entitled to humane conditions. Mr. Valade described a dystopian community inside the jail. We cannot, as a society, allow that to become a new normal. I reject the premise. As Justice Power wrote in R. v. Levesque, the conditions inside the detention centre as long ago as 2004 brought the administration of justice into disrepute.

[19] I find that Mr. Valade was subjected to inappropriately harsh conditions during his stay at OCDC and that the experience imposed a detrimental effect on his well-being.

House Arrest

[20] Mr. Valade spent 827 days abiding by strict bail conditions through today. Those conditions amounted to house arrest. He has been required to remain in his residence except when he is in the presence of his surety, for purposes of employment, for the purpose of conferring with counsel and for the purpose of counselling.

[21] House arrest is a form of punishment and represents restraint on liberty. The exceptions do not exclude Mr. Valade from the benefit of this mitigating factor. The jurisprudence cited by Mr. Friedman provide credit in similar circumstances in the range of 20 – 30 % - R. v. Chaloner, 2018 ONCJ 577 at 40; Downes ibid para 29; R. v. Tello, 2018 ONSC 2259 at 84-85; R. v. Digiorgio, 2018 ONCJ 398 AT 49; R. v. Torrezao, 2018 ONSC 2157 at 37.

[22] The valuation of the mitigating aspect of extended house arrest does not lend itself to mathematical formulation. The terms at bar were no less restrictive than most conditional sentences. The duration exceed the longest permissible conditional sentence. These are material mitigating factors.

[23] Mr. Valade described the impact this extended period of house arrest had on him. His evidence is uncontradicted.

Discussion and Conclusion

[24] On a quantitative rationale to account for lost eligibility for early release and parole, Mr. Valade earned credit at the rate of 1.5:1 for 171 days or 257 days credit.

[25] On a qualitative rationale to account for the particularly harsh conditions at the provincial detention center during 2015 and 2016 and the unfortunate impact Mr. Valade’s experiences have wrought on his vulnerable mental health, he earned another .5:1 credit for 171 days or 86 days credit.

[26] He earned credit on a 1.5:1 basis for the 21 days detention in 2017 after conditions within the detention centre ameliorated – further 32 days credit.

[27] The Crown argued that Mr. Valade ought not to receive credit for the time pending sentence because significant portions of the interval was driven by unavailability of defence counsel and Mr. Valade’s decision to remain with Mr. Friedman notwithstanding as well as the time spent on an assessment of Mr. Valade’s mental health. Paragraph 29 from the Downes reasons captures the principled analytical considerations we are to apply to this part of the exercise.

[28] I conclude that Mr. Valade should receive credit for 165 days for the 827 days on bail house arrest. He honoured the release terms, the exceptions were stringent. The exceptions permitted no more than that he could attend employment, counselling that in part was focussed on redressing the impact of the experience at the detention center, counsel consultation and in the presence of his surety. Restraint on liberty has to be recognized in a free and democratic society.

[29] Accordingly, Mr. Valade receives credit against the otherwise fit sentence of twenty months of eighteen months. He is sentenced to imprisonment for sixty days to be served intermittently. I will endorse recommendation for temporary absence and early release.

[30] There will be three years of probation with statutory terms including report as requested; counselling as recommended by his probation officer and to provide signed releases; Contact with Diana Arnold-Burd and Carolyn Scott and their immediate family members to include spouses and children in any form is prohibited; You are not to attend at or within one kilometer of where they reside or you know them to be; and no contact with them while in custody pursuant to s. 743.21 of the Criminal Code. You shall not possess any weapons as defined by the Criminal Code.

[31] The ancillary terms to include s. 109 weapons prohibition for life and a DNA order.

The Honourable Mr. Justice Rick Leroy Released: May 17, 2019