COURT FILE NO.: CR-16-4000004
DATE: 20191113
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
– and –
Ammaan Charley
Defendant
Tracy Vogel and Andrew Weafer, for the Crown
David Midanik, for the Defendant
HEARD: October 24-25, 2019
REASONS FOR SENTENCE
E.M. Morgan J.:
I. The offense and proceedings to date
[1] On January 27, 2017, Ammaan Charley was convicted of robbery with a firearm, aggravated assault and possession of a loaded firearm. He has also been convicted of breach of a weapons prohibition order which was in force at the time of the robbery.
[2] The conviction was in respect of an armed robbery that took place two years previously, on January 15, 2015, at the Mr. Jerk convenience store on Eglinton Avenue West in Toronto. During that robbery, Mr. Charley and another young man held up the store clerk, Glassford Gordon, at gunpoint. Mr. Charley “pistol whipped” Mr. Gordon behind the counter in the store. Then, when Mr. Gordon grabbed the revolver that Mr. Charley had brought with him, Mr. Charley gave chase and wrestled Mr. Gordon to the ground outside the store. Two shots were fired, apparently by accident, during the course of the struggle over possession of the weapon.
[3] Mr. Charley never got bail and so remained in custody at the Toronto South Detention Centre (“TSDC”) from the date of his arrest, through to the end of trial and beyond. The year and a half following Mr. Charley’s conviction were consumed by a number of proceedings brought by both sides which had to be resolved prior to sentencing. As a consequence, Mr. Charley remained in remand at TSDC until June 25, 2018, when I ordered that all of the proceedings against him were to be stayed.
[4] The first post-verdict matter was an application brought by the Crown under section 752.1(1) of the Criminal Code remanding Mr. Charley for the purposes of having a psychiatric assessment done. This assessment was sought by the Crown for use as evidence in a proposed application to have him declared a dangerous or long-term offender under s. 753 or s. 753.1. It took some months for the Crown to gather together the evidence that it needed. After consideration, I ultimately dismissed the Crown’s application in a judgment dated June 22, 2017.
[5] Following that, the defense brought a habeas corpus application together with a wide-ranging constitutional challenge to the conditions in which remand prisoners are held at the TSDC. Again, it took a number of months for the defense to adduce all of the evidence it considered relevant to the challenge. I ultimately dismissed the habeas corpus application and parts of the constitutional challenge in a judgment dated February 22, 2018.
[6] The case was then set to proceed to a sentencing hearing, which would also have included a consideration of the balance of the issues in the constitutional challenge that remained open after my habeas corpus and constitutional ruling. That hearing, however, was never reached. On June 25, 2018, I stayed all outstanding proceedings against Mr. Charley on the grounds of delay under s. 11(b) of the Charter. Accordingly, although Mr. Charley served 3.5 years on remand in TSDC before being released as a consequence of the stay of proceedings, he has never been sentenced pursuant to the conviction at trial.
[7] On September 19, 2019, the Court of Appeal released its judgment affirming Mr. Charley’s conviction but setting aside the stay of proceedings in respect of s. 11(b) of the Charter. The matter was remitted to me for sentencing. A two-day sentencing hearing has now been completed. As would have been the case in June 2018, both sides have addressed in their submissions not only the mitigating and aggravating factors going to Mr. Charley’s sentence, but the constitutional questions that remained open following my February 22, 2018 judgment.
II. The remaining constitutional questions
[8] In my February 22, 2018 judgment, reported as R v Charley, 2018 ONSC 1163, I left open what had been Heads of Relief ‘a’, ‘e’ and ‘g’ under the Notice of Application that set out the constitutional issues raised by the defense. As indicated at para 14 of that judgment, those Heads of Relief are:
a) a declaration that sections 719(3) and 719(3.1) of the Criminal Code are of no force and effect;…
e) a stay of the Defendant’s charges pursuant to section 24(1) of the Charter for breaches of sections 7, 9, 11(e) and 12;…
g) alternatively, that the Defendant get credit for pre-trial custody at a rate of 3:1 pursuant to section 24(1) of the Charter, or a Summers application.
[9] Since the time of my February 22, 2018 ruling, the constitutionality of sections 719(3) and 719(3.1) of the Criminal Code has been specifically considered by the Court of Appeal in an unrelated case. Those sections were upheld by the Court and as being constitutionally valid: R v Passera, 2019 ONCA 52. Counsel for the defense has indicated that he is therefore no longer pursing Head of Relief ‘a’ in the case before me.
[10] I will address in Part III of these reasons the parties’ positions in respect of Head of Relief ‘g’ – additional credit for the time Mr. Charley spent in remand at TSDC. This request is certainly open to the defense at this stage. The Court of Appeal has held that “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)”: R v Duncan, 2016 ONCA 754, para 6.
[11] That leaves the defense request under Head of Relief ‘e’ – a stay of proceedings based on the violation of the Charter. I clarified the availability of that argument in an endorsement issued March 23, 2018, pursuant to defense counsel’s request for directions as to what part of the constitutional challenge remained open. In that endorsement I stated, at 2018 ONSC 1962, paras 5-6:
[5] The answer to this question is found at paragraph 16 of my February 22, 2018 ruling:
[16] …Mr. Charley may continue to seek a stay of proceedings as a remedy under section 24(1) of the Charter in the event he can show that his case of mistreatment while incarcerated meets the “clearest of cases” threshold as set out by the Supreme Court of Canada: R v Regan, 2002 SCC 12, [2002] 1 SCR 297, at para 58, citing R v O’Connor, 1995 51 (SCC), [1995] 4 SCR 411, at para 68.
[6] Given the rulings in O’Connor, at para 75, and Regan, at para 54, in order to obtain a stay the Defense must demonstrate that:
(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
(2) no other remedy is reasonably capable of removing that prejudice.
[12] Given this direction, the defense continues to argue that Mr. Charley’s constitutional rights have been breached and that a stay of proceedings is thereby warranted under s. 24(1) of the Charter. Defense counsel states that the request for a stay is based on the evidence of arbitrary and excessively restrictive custody conditions which Mr. Charley experienced during his time at TSDC, and in particular a comparison between what Mr. Charley as a remand inmate experienced and what inmates in federal penitentiaries experience. As counsel for the defense points out, this is Mr. Charley’s second conviction for an offense involving a firearm. In those circumstances, s. 344(1)(a)(ii) of the Criminal Code imposes a mandatory 7-year minimum sentence; accordingly, defense counsel sees the federal system, in which Mr. Charley would otherwise be serving his sentence, as the relevant point of comparison to the conditions in TSDC.
[13] It is defense counsel’s submission that a person who is waiting for trial and who is therefore presumed innocent cannot be treated worse than a person who has been convicted of an offense and is serving his or her prison sentence. The defense states that there is ample evidence in the record to establish that the impact of custody at the TSDC on Mr. Charley has been far worse than would be the impact of incarceration in the federal system. This disparity, defense counsel submits, amounts to a Charter violation which must be remedied.
[14] Defense counsel points in particular to the testimony of Donald Head, then Commissioner of Correctional Services of Canada, as providing evidence of this disparity in treatment. Mr. Head testified at an earlier stage of these proceedings with respect to the federal government’s implementation of the “least restrictive measure” principle that is mandated under ss. 4 and 28 of the Corrections and Conditional Release Act, SC 1992, c 20. It was Mr. Head’s evidence that numerous features of federal penitentiaries and the programs provided to inmates there are designed with this principle of humane treatment of inmates in mind.
[15] Mr. Head’s testimony is contrasted by defense counsel with that of Michael MacLennan, the Deputy Superintendent of Security and Compliance at TSDC, who also testified during the course of the defense’s constitutional challenge. Mr. MacLennan, like Mr. Head, made reference to a “least restrictive” policy and contended that, like its federal counterpart, Ontario’s Ministry of Correctional Services adheres to its requirements. However, as Mr. MacLennan described it, the implementation of the “least restrictive measure” approach does not apply to remand prisoners who are presumed to be too short-term for most of what is included in those policies.
[16] Perhaps most importantly, the evidence by Mr. Head indicated that in the federal system there is a significant differentiation in the conditions as between federal maximum, medium, and minimum security institutions, and that federal inmates are thoroughly evaluated at the outset to ensure that they are placed in the right level of secure prison. The evidence by Mr. MacLennan, by contrast, indicated that all remand prisoners throughout the province are housed in maximum security institutions, without any attempt to differentiate between those facing the most serious charges and those charged with lesser offences but who could not come up with an acceptable surety and so could not qualify for release on bail. Although, as Mr. MacLennan explained, provincial detention centres such as TSDC do make some attempt to distinguish between better behaved and more problematic inmates by imposing either direct or indirect supervision regimes allowing for different degrees of human contact, they do not sort the inmates in a thorough way in keeping with each individual’s life and case history like federal institutions do.
[17] Having heard Mr. Head’s and Mr. MacLennan’s testimony, it is not controversial to observe that provincial facilities, and TSDC in particular, are far more overcrowded than their federal counterparts. That fact, combined with the differences in how inmates are evaluated and sorted (or not evaluated and sorted) in the two systems, means that in TSDC, unlike in federal penitentiaries, violent accused offenders and non-violent accused offenders are housed together in very close quarters.
[18] An additional factor stressed by the defense is that, as a matter of law, pre-sentence custody in a provincial detention centre does not count toward parole eligibility or eligibility for conditional release as would custodial time spent post-sentencing in the federal system: R v Summers, 2014 SCC 26, [2014] 1 SCR 575. Thus, the time consumed in remand at TSDC is dead time, as it were, in terms of earning any form of advance release.
[19] Furthermore, the evidence demonstrates that in the federal system there is a variety of educational options and work and vocational training open to inmates, whereas at TSDC there is no work offered to inmates at all and only a relatively small number of one-day “courses” are available. Of these few courses, there are bound to be several which involve instruction in subject matters which have no relevance to a particular inmate.
[20] Likewise, there are more recreational facilities available in federal prison, and time in a federal prison’s yard means actual outdoor time spent in the fresh air; by contrast, at TSDC there is only an indoor “yard” with a barely visible window and there is no gym or other recreational activities that are regularly made available to remand inmates. Likewise, in the federal system there are in-person visits by family and friends, including the possibility of conjugal visits, whereas at TSDC the only “visits” are by video link.
[21] One could go on for some time with comparisons between Mr. MacLennan’s evidence and Mr. Head’s, all demonstrating that in numerous categories the conditions of provincial detention of remand prisoners do not stack up well as against those of longer term inmates in federal penitentiaries. Even in maximum security, most federal inmates are single bunked whereas in provincial detention centres inmates are often double bunked. Likewise, federal inmates spend substantially more time each day outside of their cell than provincial remand inmates.
[22] The disparity in conditions can be seen to flow through to the details of everyday life. Federal inmates can wear their own clothing, whereas provincial remand inmates must wear prison-issued garments. Federal inmates can purchase their own television for their cells and they can pool their funds for cable access, whereas provincial remand inmates have no possibility of individual television access. Federal institutions have libraries and computers for inmate use, whereas provincial remand centres have a book cart that comes around with some reading materials and no computer access for inmates. The list goes on in that vein. While all prison deprives a person of their essential liberty, there is no doubt in the record before me that the time spent in provincial detention centres, and especially in TSDC, is far more restrictive and onerous than time spent even in a maximum security federal facility.
[23] While the evidence of harsh conditions at TSDC and the disparity between those conditions and the conditions prevailing at federal institutions is in many ways compelling, I am obliged to observe that this argument has been tried before and failed, albeit on not quite as thorough an evidentiary record. In Sanchez v Superintendent of the Metropolitan Toronto West Detention Centre, 1996 848, the Court of Appeal held that the conditions of pre-trial custody were justified even though they were every bit as harsh as the terms of post-verdict imprisonment. It reviewed the difficult prison conditions prevailing at a provincial remand institution, many of which were similar to the ones evidenced in the present application, and responded, at para 20, by quoting approvingly from the trial judgment of Justice Moldaver, as follows:
[S]imply because Ms. Sanchez, who at this stage is presumed innocent, is being treated in a like manner to other inmates who have already been sentenced, that she is therefore being improperly punished. The restrictions on her liberty flow logically from the fact that she has been ordered to be detained in custody pending trial. There is nothing to suggest that the judicial interim release proceedings giving rise to her detention were in any way improper or irregular.
[24] Counsel for Mr. Charley concedes that the Sanchez decision has never been reversed or subsequently overturned and that it is still good law. He submits, however, that the Court’s reasoning in Sanchez demonstrates that in analyzing the challenger’s claim under s. 7 of the Charter, it only considered fundamental justice in a procedural sense rather than in a substantive sense. As defense counsel put it, “It’s almost as if it was written in 1981”, prior to the advent of the Charter.
[25] For this reason, defense counsel argues that with the even more fulsome evidentiary base here than Moldaver J. had before him in Sanchez, the time is ripe to invite a reconsideration of the Sanchez ruling. This is especially the case, according to defense counsel, in light of more recent jurisprudence making it clear that, “Section 7 protects substantive as well as procedural rights”: Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 SCR 3, para 113.
[26] While I admire defense counsel’s commitment to advocacy, I would be reluctant to second guess even a two decade-old decision of a unanimous Court of Appeal in quite that way. I say this while acknowledging the fact that a trial judge that can start the process toward reconsideration of a previously decided point of constitutional law where “the legal issues… were different, in light of the evolution of the law in that area; the evidentiary record was richer and…the social, political and economic assumptions underlying the [previous case law] no longer applied”: R v Bedford, 2013 SCC 72, [2013] 3 SCR 1101, para 38.
[27] It seems to me that the Sanchez decision was rendered by a judiciary already open to the constitutional arguments presented here. The inclusion of substantive justice within fundamental justice as embodied by s. 7 of the Charter dates from well before the Sanchez decision. As counsel for the defense indicated in his oral argument, a substantive approach to s. 7 was first articulated by the Supreme Court of Canada in Reference Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 SCR 486. Lamer J. (as he then was) began that judgment with the proposition that, “A law that has the potential to convict a person who has not really done anything wrong offends the principles of fundamental justice and, if imprisonment is available as a penalty, such a law then violates a person’s right to liberty under s. 7 of the Charter”: Ibid., para 2.
[28] Had either Moldaver J. at trial or the Court of Appeal wished to make the point that s. 7 protects not just the process by which a person is tried and incarcerated but the conditions under which he is incarcerated, they could certainly have done so. The evidentiary basis that they would have required was in place on the record before them; the present case has quantitatively more evidence of the deprivations of remand custody, but the same point could have been made on the basis of the evidence recited in the reported Sanchez decision. The Court two decades ago had a legal basis, in the form of the 1985 B.C. Motor Vehicle Reference, for examining substantive justice in light of the evidence before it.
[29] Instead, the silence of the Sanchez ruling on this issue is telling. In the circumstances, it was a reflection of the Court of Appeal’s conclusion that, “The detention centres operated by the Ministry are all classified as maximum security institutions because they are populated with persons a court has determined present risks of flight or re-offence. A full security level assessment of inmates is normally precluded by their indeterminate status and because detailed information concerning them is frequently unavailable”: Sanchez, para 16.
[30] In other words, the Court saw the detention of remand inmates in provincial detention centres to be commensurate with risk: R v Antic, 2017 SCC 27, [2017] 1 SCR 509, para 4. The comparative harshness of pre-trial detention conditions compared with post-trial incarceration was for the Court of Appeal a reflection of that risk; it amounted to an adherence with, rather than a breach of, the principles of fundamental justice.
[31] Perhaps even more to the point in the present case, the Supreme Court of Canada stated in R v Regan, 2002 SCC 12, [2002] 1 SCR 297, para 54, that “a stay of proceedings is a prospective rather than a retroactive remedy.” As I indicated in my March 23, 2018 directions, a stay may be available as a remedy where the abuse or prejudice suffered by the defendant amounts to the “clearest of cases”, where it will continue to manifest throughout the trial or moving forward in the criminal process, and where there is no other remedy available.
[32] Those factors may have been open to be established in February 2018 when I issued my constitutional ruling and in March 2018 when I issued my Order for directions. They are not, however, any longer relevant to Mr. Charley’s current situation. At the time of my directions endorsement, Mr. Charley was still detained in TSDC. The conditions of that detention had ongoing impact on him. But since his release on June 25, 2018, that has not been the case.
[33] However cogent the defense’s critique of remand conditions at TSDC might be, it is in the past as far as Mr. Charley is concerned. A stay of proceedings will not reduce the impact it has on him and the lack of a stay of proceedings will not increase that impact. Mr. Charley has already been freed from custody at the TSDC. And since the Crown did not seek any custodial arrangement pending this sentencing judgment, he has not revisited that situation again.
[34] As was the case with the defense’s habeas corpus application once he was convicted at trial, now that he has been released from custody Mr. Charley’s complaint about the conditions of his custody at TSDC “is over and has become academic”: R v Solosky, 1979 9 (SCC), [1980] 1 SCR 821, 832. A stay of proceedings “aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties…”: Regan, para 54. It is not an appropriate remedy at this stage of Mr. Charley’s case.
[35] Finally, I would note that the same type of issues that underlie the Charter arguments by defense counsel have been addressed with remedies falling short of a constitutionally mandated stay of proceedings. The Charter remedy does not look backward and therefore may be inapplicable to Mr. Charley’s situation, but other remedies might still operate under these circumstances.
[36] Specifically, in R v Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 SCR 180, para 71, the Supreme Court held that while “Parliament can limit a sentencing judge’s ability to impose a fit sentence…[but] it cannot require a sentencing judge to impose grossly disproportionate punishment.” A residual judicial discretion with respect to matters such as calculating the appropriate credit to reflect onerous pre-trial custody conditions can be found in common law principles and in conventional approaches to statutory interpretation with respect to the Criminal Code: Summers, para 35. Conditions such as those found at TSDC can therefore be the subject of a remedy even without resort to the Charter: R v Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206, para 5.
III. Aggravating and mitigating factors
[37] In determining an appropriate sentence for Mr. Charley, I must have regard to the sentencing objectives in s. 718 of the Criminal Code:
- The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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 or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[38] Justice Kelly pointed out in R v Ward-Jackson, 2018 ONSC 178, para 27, that a sentencing judge may also “have regard to any aggravating and mitigating factors, including those listed in ss. 718.2(a)(i) to (iv); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b));…the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).”
[39] Counsel for the Crown submits that in sentencing Mr. Charley I must first and foremost keep in mind the nature of the offense. It was a violent robbery with a loaded firearm. Although Mr. Gordon was not shot or otherwise permanently injured, he was struck in the head and suffered blows and abrasions on his body. In addition, Mr. Charley’s gun went off accidentally during the course of the melee that ensued, and it is only by a stroke of luck that no one was more seriously injured.
[40] From the defense point of view, the most important factor to keep in mind is Mr. Charley’s success in staying out of trouble for the past year and a half and rehabilitating himself with a stable home life and a new business. Mr. Charley is a young man in his early twenties who spent much of his youth in custody of one form or another. He testified at the sentencing hearing that the time he has spent in the community since my judgment of June 25, 2018 was the most time he has spent out of jail in the past 10 years. He said it has been a very meaningful experience for him, and I would think that cannot help but be true.
[41] Mr. Charley has a steady girlfriend who, along with another family member, attended court most days throughout his long ordeal. He testified that it took him the better part of the first year after his release just to get used to his new freedom. In the past half-year he has apparently incorporated and started up a form of retail sales business. It is still in its early period, but Mr. Charley appears hopeful that it will be a viable way to earn a livelihood.
[42] It has not escaped my notice that while in TSDC Mr. Charley took virtually every course and educational program available to him. He obviously has a healthy desire for knowledge. Indeed, he continued to read and take courses despite any number of difficult distractions – including his being upset for a period of time that his father passed away in Jamaica while he was in detention and did not have a chance to visit one last time.
[43] Crown counsel argues that all of Mr. Charley’s courses were taken during his first year of detention, as if to criticize him for subsequently losing interest in bettering himself. However, the explanation for this timing seems to be that he had exhausted virtually the entire TSDC curriculum, such as it is, during the first year.
[44] If the names of the courses that I have seen are any indication, they were likely too mundane to re-take a second time. That said, Mr. Charley was obviously game for almost anything on the educational front. The only courses that he skipped over were the ones that were truly irrelevant to him – Mr. Charley has no children so the childrearing course did not attract him; likewise, he is not a drinker so the Alcoholics Anonymous session was of no relevance. It seems that the Essentials of Judaism course also failed to peak his interest.
[45] In R v Bellisimo, 2009 ONCA 49, para 3, the Court of Appeal observed that “the range of sentence for these kinds of serious gun related offences is between seven and eleven years.” That range, of course, reflects the 5-year minimum sentence required under s. 344(1)(a)(i) and the 7-year minimum for a second offence under s. 344(1)(a)(ii) of the Criminal Code. Crown counsel also notes that store clerks are generally a vulnerable class of people, making offenses against persons like Mr. Gordon appropriate for a higher sentence: R v Boyle, [1985] OJ No 33 (Ont CA).
[46] The question is, how does one adjust upward for a statutorily mandated minimum sentence. From the Crown’s point of view, s. 344(1)(a)(ii) represents just that: a minimum. It applies to what Crown counsel calls the “friendly robber” – i.e. one who robs a store with an unloaded gun and who takes the money without violence. The Crown sees the statutory minimum not only as moving the minimum sentence upward but as expanding the entire scale of possible sentences correspondingly upward. This view would be most applicable where “the sentence imposed should [reflect] the need ‘to separate offenders like the respondent from society’”: R v J B, 2004 39056, para 29 (Ont CA).
[47] The other way to look at the enactment of a statutory minimum is that it moves the minimum upward, and in doing so shrinks the available range of sentences. Thus, while previously the minimum established by the case law for a crime like Mr. Charley’s might have anywhere from 3 to 10 years, the available range now starts at 7 years. But that might mean that the scale of possible sentences is compressed, and that a “friendly robber” and a less ‘friendly” one, to use the Crown’s term, are both subject to a similarly high range of sentence. This perspective would emphasize the societal concern with all firearm offences, but at the same time would see the challenge of rehabilitation as an important consideration in limiting, as much as the statute will allow, the jump up from Mr. Charley’s previous youth sentences: R v Robitaille, 1993 2561 (BC CA).
[48] For the Crown, rehabilitation is at best secondary to the primary considerations of deterring and satisfying the public that they are being protected against repeated gun crimes. For the defense, the most significant feature of Mr. Charley’s history is that after a consistently troubled youth he has now managed to turn his life around. Both characteristics of his past are true; Mr. Charley is a person who has repeatedly offended and he is a person making a genuine effort to rehabilitate himself and not offend again.
[49] I cannot view Mr. Charley generically as a repeat offender. Rather, I must look at the circumstances of his own life. The Supreme Court said in R v Suter, 2018 SCC 34, [2018] 2 SCR 496, para 4, that, “Sentencing is a highly individualized process. A delicate balancing of the various sentencing principles and objectives is called for”. This applies equally to sentences where a statutory minimum has been imposed, “which are in every other respect ‘reduced’ like all others, even to below the minimum”: R v Wust, 2000 SCC 18, [2000] 1 SCR 455, para 27.
[50] In fashioning a sentence appropriate for Mr. Charley, I am mindful of the history of these proceedings and the maturity and stability that he appears to have achieved during this long ordeal. In Passera, the Court of Appeal pointed out that I am not to look at a person facing sentencing as he was at the time of the offence, but rather as he is today. Doherty JA stated, at para 41, that, “Sentencing judges must have regard to the circumstances of the offenders as they exist at the time of sentencing. If an offender, while in pre-sentence custody, has taken positive steps to change her life and demonstrated significant rehabilitative potential, the sentencing judge must take that development into account…”
[51] Thus, while the 7-year minimum in s. 344(1)(a)(ii) already takes account of the nature of Mr. Charley’s crime, my determination of the length of sentence within the range of available sentences must take account of Mr. Charley’s rehabilitation.
IV. The Summers/Duncan credit
[52] Both sides’ counsel concur that whatever sentence I determine to be appropriate may be subject to a reduction for pre-sentence custody as authorized by s. 719(3.1) of the Criminal Code and Summer. They also agree that the Duncan case authorizes enhanced credit for time spent subject to onerous custodial conditions, although they differ widely as to the appropriate quantity of credit Mr. Charley should receive. In his affidavit filed in respect of the constitutional application, Mr. Charley deposed that the effect on him of these conditions was adverse in the extreme. This and other evidence fulfills an essential requirement of Duncan.
[53] Having heard the testimony of Mr. MacLennan as well as Shawn McLeod, the Deputy Regional Director of the Ministry of Correctional Services, and Robert Large, the Deputy Superintendent for Treatment and Programs of TSDC, I have no doubt that Mr. Charley is being truthful when he deposes that the impact on him was severe. In addition to the matters described in Part II above, Mr. Charley’s time at TSDC was permeated by strict enforcement of petty and illogical rules, persistent invasive searches including body cavity searches, arbitrary punishments and discipline processes lacking in fairness, and a dearth of positive physical and mental diversions. According to Mr. Charley’s evidence, the lengthy detention in TSDC made him feel like an animal.
[54] In particular, the evidence establishes that Mr. Charley endured some 491 days of partial or total lockdowns at TSDC. Mr. MacLennan’s testimony establishes that the vast majority of these days were due to staffing shortages, and were not attributable to anything in Mr. Charley’s or any other inmate’s control. It must be said that 491 days represents an extraordinarily high number of lockdowns by any measure. I appreciate that staffing shortages create security issues, and that correctional facilities are owed a margin of deference when addressing matters of institutional security: Mission Institution v Khela, 2014 SCC 24, [2014] 1 SCR 502, paras 76, 89. But being locked down for more than 1/3 of a 3½ -year long stay in detention is beyond any tolerable or humane limit.
[55] Counsel for the Crown contends that Mr. Charley should only get credit for 458 of the 491 lockdown days. This argument is based on the contention that the balance of the lockdowns took place after defense counsel requested that he be remanded to TSDC rather than being sent to an out of town detention centre. The Crown claims that any lockdowns experienced by Mr. Charley after the time of that request were, in effect, “his choice”.
[56] The defense does not see it that way and neither do I. I first will pause to note that even the Crown’s view that Mr. Charley endured only 458 days in lockdown, without ‘yard’ time or any other recreation, is a strong indictment of the conditions prevailing at TSDC. Beyond that, it is apparent to me that none of the lockdowns were Mr. Charley’s choice in any real sense of that word. Remaining in Toronto was Mr. Charley’s choice, but remaining in an oppressive, consistently locked down environment was not. He was concerned that his family and girlfriend be able to visit him at the jail – even though visitations were only by video, a guest has to appear in person at the detention centre in order to be placed in front of the camera. Being sent to a distant detention centre would have made those visits impossible.
[57] Given his choice, Mr. Charley would of course have chosen not to be locked down in TSDC. In Penetanguishene v Ontario (Attorney General), 2004 SCC 20, [2004] 1 SCR 498, para 24, the Supreme Court confirmed that the principle of ‘least onerous and least restrictive’ applies to conditions of detention as well as to the ultimate sentence. It reminded us again in Safarzadeh-Markhali, para 41, that pre-trial custody is “geared towards promoting public safety and security, not retribution.” The legal system is obliged to fashion the least onerous, least restrictive way of achieving public safety for remand inmates. The evidence of lockdowns and other indignities at TSDC establishes that an approach based on this principle has not been achieved.
[58] Mr. Charley will be given credit for time spent in pre-sentence custody in accordance with s. 719 (3.1) of the Criminal Code and Summers. That comes to 1.5 days for each day spent in pre-sentence custody at TSDC. Mr. Charley spent 41 months and 14 days in pre-sentence custody. At 1.5:1, as authorized under s. 719(3.1), that comes to a credit of 61 months and 21 days. I would exercise my discretion to round that figure down to 61 months even.
[59] Further, in Duncan, para 43, the Court confirmed that where there have been especially harsh pre-sentence detention conditions, “mitigation greater than the 1.5-day credit set out in s. 719 (3.1) of the Criminal Code may be appropriate.” In an analysis highly pertinent to the case at bar, the Court reasoned, at para 6, that:
In considering whether any 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. In this case, there was evidence that the appellant served a considerable part of his presentence incarceration in ‘lockdown’ conditions due to staffing issues in the correctional institution.
[60] In R v Jama, 2018 ONSC 1252, the defendant experienced 175 days of lockdown in TSDC and was given 120 days of enhanced credit in view of that experience. That comes to somewhere shy of one day per each lockdown day. In Ward-Jackson, the defendant experienced 488 days of lockdown in TSDC and was given 480 days of credit – i.e. just about a day for a day. In the unreported case of R. v. Dibben, cited in Ward-Jackson, paras 48-49, also dealing with TSDC, McMahon J. gave enhanced credit of 14 months (420 days) for 383 days of lockdowns. That calculus comes to somewhere just over one day per each lockdown day.
[61] In R v Reeve, 2018 ONSC 3744, the defendant experienced some 16 months of lockdown time at Maplehurst Correctional Complex and was given 13 months of enhanced credit. In that case, however, the overall conditions at Maplehurst were not as severe as TSDC, and there was evidence that the defendant had a job during his time in detention and benefitted from the positive experience of working in the custodial institution. Each of these cases serves as a demonstration that the unique circumstances of the individual defendant and his or her experience in the particular institution is to be taken into account:
There is no mathematical formula that is available to conveniently calculate the appropriate enhanced credit that an accused can receive due to suffering from harsh jail conditions that have negatively impacted the accused. The specific nature of the appropriate credit is left to the discretion of the sentencing court [citations omitted].
Reeve, para 182.
[62] In R v Johnson, 2017 ONSC 3512, para 69, another case in which significant enhanced credit was given due to lockdowns, the trial judge noted that, “CECC [Central East Correctional Centre] is gaining some notoriety for its routine use of lockdowns as a means to manage what must be described as chronic staff shortages.” He followed up this observation with the comment, at para 77, that, “The overwhelming explanation for such lockdowns – staff shortages – is rather arresting in my view.” The identical observations can be made about TSDC and Mr. Charley’s experiences there.
[63] As already noted, Mr. Charley felt dehumanized by his lengthy incarceration at TSDC. In a variety of incidents he was singled out for particularly degrading treatment by the staff there. The evidence demonstrates that these incidents include being wrongly accused of drug use and possession and being made to stay in solitary for days in a so-called “dry cell” – i.e. with no running water in the toilet – where guards could inspect his stool until satisfied that he had not swallowed a packet of drugs. His experiences also entail being placed in segregation for resting his arm outside of the bars of his cell. His TSDC records show that he was shoved by an officer for calling him a name and consequently placed in segregation for supposedly “fighting”, and that he was subjected to and exonerated by X-ray a number of times when he refused to cooperate in degrading strip searches, which were performed on a regular basis.
[64] This experience has taken its toll on a young man who has had very little time outside of custody since his teenage years. He was a long-term remand prisoner in a facility designed for short term prisoners that made no accommodation for his length of stay. He was allowed to use the gym once in three years at TSDC. He endured a lengthy period of custody under conditions which even Mr. Large, the Deputy Superintendent, conceded in cross-examination contain nothing “pro-social”. This experience makes Mr. Charley’s efforts at self-improvement and rehabilitation all the more noteworthy.
[65] Using a scale of one day of enhanced credit for every day of lockdown, and rounding up so that the credit is marginally higher than 1:1, Mr. Charley would deserve 17 months of enhanced credit for the 491 days of lockdown time he endured. Together with the Summers credit discussed above, that would bring the total amount of enhanced credit to 78 months, or 6.5 years.
[66] In R v Fermah, 2019 ONSC 3597, my colleague Molloy J. went to some lengths to demonstrate that there are any number of factors that can add to the Duncan credit beyond the lockdowns endured by a defendant. Counsel for the Crown submitted that lockdowns have been identified as the one problematic aspect of pre-sentence detention that can give rise to enhanced credit for time served. However, I do not see lockdowns as standing alone in that regard, and the case law does not support drawing the line at lockdowns in remand facilities.
[67] Lockdowns are perhaps the easiest to identify and most prevalent variety of oppressive detention conditions, but they are not in a special category. Rather, they are emblematic of the kind of treatment that no one in Canadian society, including remand inmates, should have to endure. Lockdowns are one kind of degradation; but they are not the only kind of degradation that count under the Duncan principle.
[68] This principle was taken further by the Court of Appeal in its short endorsement in R v Fuentes, 2003 57438. There the Court indicated that there are circumstances where a person serves custodial time in such harsh conditions that the most appropriate course of action is to reduce the sentence to “time served”. In any case, given the multiple indignities described above separate and apart from lockdowns – strip searches, wrongful accusations, unfair punishments, time in solitary, lack of recreation or work or education, lack of outdoor time, overcrowding, etc. – further credit for the time spent at TSDC is called for. I would add 12 months of enhanced Duncan credit to the 17 months of credit I have already noted is attributable to the lockdowns alone.
[69] Given Mr. Charley’s extremely long period of pre-sentence incarceration and the psychologically damaging conditions he had to endure even separate from the lockdowns, Mr. Charley’s case can be viewed as rather unique. After a youth characterized by serial incarcerations, he spent 3½ years of his early twenties in the unremittingly harsh environment of an overcrowded and understaffed TSDC.
[70] Despite enduring terrible treatment at the hands of the provincial detention centre, he has apparently emerged a better man. As indicated, Mr. Charley has started himself on a course of rehabilitation – all of which has occurred in spite of, rather than because of, the time he spent in custody.
[71] Defense counsel submits that it will do neither Mr. Charley nor society any good to send him back to custody at this stage. He has been free for the past year and a half without any trouble or even any minor encounter with the law for the first time in his adult life. Defense counsel puts forward a strong argument that the balance is properly struck by crediting Mr. Charley’s time served to the fullest extent allowed by the law.
[72] In R v M (C), 1996 230 (SCC), [1996] 1 SCR 500, 566, Lamer CJC described sentencing as “a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender”. Under the circumstances, the minimum 7-year sentence built into s. 344(1)(a)(ii) of the Criminal Code has ensured that the moral blameworthiness of Mr. Charlie’s offenses will be addressed by the sentence; the key is to balance this against the best interests of society. As set out in s. 718(d) of the Criminal Code, that includes taking account of Mr. Charley’s rehabilitation and reintegration into society after the long ordeal in pre-sentence detention.
[73] In my view, Mr. Charley’s punishment and rehabilitation is best accomplished by keeping him out of custody to the extent possible, and imposing a probationary period to ensure that he keeps on the positive path that he has already commenced. A minimal custodial sentence at this point can accomplish that objective: R v Mathieu, 2008 SCC 21, [2008] 1 SCR 723, para 6.
[74] It also seems fair to Mr. Gordon, the most direct victim of the offence, that Mr. Charley keep his distance for a probationary period. I understand that Mr. Gordon works near Mr. Charley’s home and less than a block from Mr. Charley’s church. I am confident, however, that with some forethought Mr. Charley will be able to avoid Mr. Gordon on any outing. He has been doing so successfully for the past several weeks as a condition of his release pending this sentencing. Indeed, this minor restriction on Mr. Charley’s mobility may serve as a healthy reminder of his commitment to rehabilitating himself going forward.
V. Sentence
[75] I sentence Mr. Charley to a global sentence on all charges of 7.5 years plus one day. This time is slightly higher than the minimum sentence required under s. 344(1)(a)(ii), as it reflects the nature of the offenses and the fact that they include breach of a weapons prohibition order.
[76] Against that sentence, I credit Mr. Charley with a total of 7.5 years for the time he has served pending sentence. There is therefore one day of custody in his sentence.
[77] Mr. Charley’s custodial sentence shall be followed by two years of probation. The terms of probation to be adhered to by Mr. Charley are:
• that upon completion of the custodial sentence, he will report to a probation officer as required;
• that he will provide his home address to the probation officer and keep the probation officer apprised of any changes of address;
• that he will keep the peace and be of good behaviour;
• that he will not be in possession of any weapon;
• that he will attend such educational or vocational programs as may be recommended by the probation officer;
• that he will sign any releases necessary for the probation officer to monitor his attendance at such programs; and
• that he will have no communication or contact, direct or indirect, with Glassford Gordon, and that he will not knowingly be within 200 meters of Mr. Gordon or his known place of employment, unless it is necessary to pass by, without stopping, on the way to church.
[78] There will be a DNA Order and a section 109 Prohibition Order for life.
Morgan J.
Released: November 13, 2019
COURT FILE NO.: CR-16-4000004
DATE: 20191113
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
– and –
Ammaan Charley
Defendant
REASONS FOR SENTENCE
E.M. Morgan J.
Released: November 13, 2019