Court File and Parties
COURT FILE NO.: CR-18-90000177-0000 DATE: 20200110 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – JEFFREY PERSAD
COUNSEL: S. Oakey, for the Crown R. Mwangi, for Mr. Persad
HEARD: August 21, December 12, 2019
REASONS FOR SENTENCE
SCHRECK J.:
… [N]o one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones. [1]
[1] Jeffrey Persad has pleaded guilty to a number of firearms and drug trafficking offences. The parties jointly submit that he should be sentenced to imprisonment for nine years and given the usual credit of one and a half to one for time spent in presentence custody. The parties also agree that Mr. Persad is entitled to further enhanced credit for the harsh conditions of his presentence custody at the Toronto South Detention Centre (“TSDC”), where he was subject to numerous lockdowns. They differ, however, with respect to the extent of that credit. The Crown submits that he is entitled to an additional one half to one day for each day spent in lockdown. Mr. Persad submits that he is entitled to an additional two and a half days.
[2] Mr. Persad was locked down for 47% of the time he was at the TSDC. During those periods, he was confined to his cell and sometimes went for days without access to a telephone, shower or fresh air. The reason for the vast majority of the lockdowns was staffing shortages. The problem of frequent lockdowns due to staff shortages has been the subject of repeated expressions of concern by the judiciary over the past four years to the effect that the conditions at the TSDC are inhumane and fail to comport with basic standards of human decency. It has become clear that the Ministry of the Solicitor General, which is responsible for the operation of the TSDC, has chosen to ignore that judicial condemnation.
[3] The following reasons explain why I have concluded that the usual enhanced credit of one half to one day per day in lockdown is insufficient to promote the community’s respect for the law and our shared values in the face of the Ministry’s refusal to act. More is required to give effect to those values.
I. FACTS
A. The Offences
[4] Mr. Persad pleaded guilty to possession of cocaine for the purpose of trafficking, possession of fentanyl for the purpose of trafficking, possession of a loaded restricted firearm, possession of a prohibited device and possession of a firearm while prohibited.
[5] On April 6, 2017, the police executed a search warrant on Mr. Persad’s residence. They seized a loaded handgun, a loaded over-capacity magazine, 3.8 kilograms of cocaine, 32 grams of fentanyl, as well as various cutting agents and a quantity of currency. At the time, Mr. Persad was bound by an order made pursuant to s. 109 of the Criminal Code, R.S.C. 1985, c. C-46, prohibiting him from possessing firearms. Mr. Persad admits that he had knowledge and control of the firearms and the drugs and that he possessed the latter for the purpose of trafficking.
B. The Offender
[6] Mr. Persad is 42 years old. He has four children and two grandchildren. He has a history of employment in construction and at one time owned and operated a coffee shop. While in presentence custody, he completed his high school diploma. He has a significant criminal record dating back to 2001 that includes convictions for firearms and drug trafficking offences. The longest sentence he received was three years in the penitentiary for firearm possession offences in 2005.
C. The Toronto South Detention Centre
(i) The Evidence of Mr. Persad
[7] Mr. Persad has been in custody at the TSDC since his arrest. While in custody, he kept track of the dates on which the range he was housed in was subject to a full or partial lockdown. The Crown accepts that his recordkeeping is accurate. The parties agree that Mr. Persad was subject to a lockdown for approximately 47% of the time that he has been in presentence custody. The majority of the lockdowns were due to staff shortages. There is no suggestion that Mr. Persad was responsible for any of the lockdowns.
[8] Mr. Persad swore an affidavit outlining his experiences in presentence custody. His evidence was not meaningfully challenged.
[9] Mr. Persad deposed that while subject to a lockdown, he would be confined to his cell. He would have to use the toilet in his cell in full view of his cellmate. He was unable to walk around and stretch because of the small size of the cell, which was difficult for him as he is of large stature. Many of the lockdowns lasted for 72 hours and some for as long as seven days. While inmates were supposed to have access to showers, telephones and fresh air during the lockdowns, this access was not provided.
[10] The inability to access a telephone prevented Mr. Persad from having contact with his grandmother, with whom he is close and who he relies on for emotional support, as well as other family members.
[11] According to Mr. Persad, the lockdowns created a tense atmosphere among the inmates. He frequently witnessed violence among the inmates, some of which resulted in injuries requiring transportation to a hospital. This caused Mr. Persad stress as he feared becoming the victim of such violence. He describes living in a state of hyper-vigilance.
[12] Mr. Persad described being provided with clothing, bedding and towels that were often stained with urine, faeces or blood, the use of which caused him to develop rashes. Because of his large size, he had difficulty obtaining clothing that fit him and would sometimes have to go months without a clothing change. There were often bedbug infestations. The nail clippers that were provided were shared and not cleaned, causing Mr. Persad to develop an untreatable fungal infection on his toenails.
[13] The experiences in presentence custody have caused Mr. Persad’s mental health to deteriorate. He now suffers from depression, anxiety and feelings of low self-esteem. He went from being a social person to someone who avoids interactions with others.
(ii) The Evidence of Sgt. Watson
[14] The court heard evidence from Leon Watson, a security sergeant at the TSDC. His role is to oversee the security of the institution. Sgt. Watson has been employed by the Ministry for 18 years and has been in his current position for two and a half years. Sgt. Watson does not work on the ranges in the institution and had no direct involvement with Mr. Persad. For the most part, he testified as to the procedures that are supposed to be implemented at the TSDC. He acknowledged that these procedures are not always followed.
[15] Sgt. Watson described a typical day at the institution when there is no lockdown. The cells would be unlocked at 8:00 a.m. and remain unlocked throughout the day. The inmates would have breakfast at 8:30 and then clean the tables and their cells. Throughout the day, they would have access to showers, telephones and the outdoor yard whenever they wished. Lunch is provided at noon. At 1:00 p.m., the inmates return to their cells for one hour during which there is an institutional head count. They are provided with razors with which to shave during this period. The inmates are free to leave their cells at 2:00 p.m. Dinner is provided at 5:00 p.m. and the inmates return to their cells at 9:30 p.m.
[16] Sgt. Watson testified that when there is a lockdown for 24 hours or more, inmates are supposed to be allowed to leave their cells for 30 minutes in order to shower and use the telephone. He acknowledged, however, that this does not always occur.
[17] According to Sgt. Watson, the majority of lockdowns are due to staff shortages, although some are due to security concerns. The staff at the TSDC consists of approximately 800 to 1000 people. There is a significant amount of turnover. I asked Sgt. Persad how many more people would be hired if he had the power and the budget to do so. His answer was 500.
[18] Sgt. Watson is aware that there has been a significant amount of judicial criticism of the conditions at the TSDC and that the regional office of the Ministry has been made aware of this.
II. POSITIONS OF THE PARTIES
[19] The parties jointly submit that the appropriate sentence in this case is imprisonment for four and a half years for the firearm possession, one year concurrent for possession of the magazine, one year consecutive for violation of the prohibition order, and five and a half years for each of the drug possession offences, to be served concurrently with each other but consecutively to the other sentences. The resulting sentence of 11 years should then be reduced by two years, having regard to the principle of totality, leaving an overall sentence of nine years.
[20] The parties agree that Mr. Persad is entitled to credit of one and half days for each of the 1010 days spent in presentence custody. This amounts to 1515 days, or approximately 50.5 months.
[21] The parties also agree that Mr. Persad is entitled to further enhanced credit because of the conditions of his presentence custody, but disagree as to the extent of that credit. Crown counsel submits that there should be a credit of one-half to one day for each day spent in lockdown. Counsel for Mr. Persad submits that there should be a credit of two and a half days for each day spent in lockdown. The parties agree that Mr. Persad spent 47% of the time in lockdown, which amounts to approximately 475 days.
III. ANALYSIS
A. The Joint Submission
[22] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718 (a) to (f), including denunciation, general and specific deterrence and rehabilitation. Section 718.1 provides that the sentence imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[23] Mr. Persad has been convicted of very serious offences that significantly threatened the safety of the public. In such cases, the objectives of general deterrence and denunciation are paramount. The nature of the firearms involved, the nature and quantity of the drugs and Mr. Persad’s prior related record dictate that a significant penitentiary sentence is required.
[24] At the same time, Mr. Persad has accepted responsibility for his conduct by pleading guilty. I am told that he did so despite there being significantly triable issues with respect to the legality of the search of his home. This is a clear demonstration of remorse and signifies a potential for rehabilitation which must be taken into account.
[25] In my view, the sentence that is being jointly submitted appropriately balances the competing considerations in this case. The joint submission certainly would not bring the administration of justice into disrepute and I should therefore accede to it: R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, at paras. 32-44.
[26] I also agree with counsel with respect to the credit Mr. Persad is entitled to for time spent in presentence custody: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575.
B. Enhanced Credit for Harsh Conditions
(i) Overview
[27] It is now well established that particularly harsh presentence incarceration conditions can justify credit beyond the ordinary credit for presentence custody: R. v. Duncan, 2016 ONCA 754, at para. 6. This follows from the principles of individualization, parity and proportionality. Where an offender has been subject to particularly harsh presentence custody, he has been subject to consequences resulting from the offence that have a more significant impact on him. Like collateral consequences such as immigration consequences, this additional impact must be considered to ensure that the sentence is proportionate and tailored to the individual circumstances of the offender: R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at paras. 46-50; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 40-43; R. v. Doyle, 2015 ONCJ 492, 23 C.R. (7th) 325, at paras. 33-48.
[28] I accept Mr. Persad’s evidence as to the circumstances of his presentence custody. His evidence was not contradicted by Sgt. Watson, who was able to testify only about what ought to happen and not what actually does happen. In my view, Mr. Persad was subject to conditions that were harsh, unacceptable and unjustified. As a result, he is entitled to some additional credit. What must be determined is the extent of that credit.
(ii) Prior Decisions Involving the TSDC
[29] This is not the first case to consider the conditions at the TSDC. Many of my judicial colleagues have commented on them in cases dating back to 2015:
…[T]he accused has been in custody for approximately 405 days. Of that 405 days, 300 of those days he has been in full or partial lockdown. What is absolutely unacceptable, shocking and deplorable is that of those 300 days, on the records filed as an exhibit here, only 15 have been for safety issues, searches and various items that are appropriate. 285 days are yet again staff shortages.
R. v. Barnes, unreported, December 9, 2019, Ont. S.C.J., at p. 9
The reasons given for the lockdowns is also very troubling. All but 10 of the 133 lockdowns experienced by Mr. Oksem were caused by staff shortages at the institution. Mr. Oksem also spent the 16 of his last 18 days in the Special Handling Unit because of staff shortage. This is completely unacceptable. The persistent problem of staff shortages at the TSDC reflects an astounding level of indifference on the part of the institution, or the government, to the rights of individuals detained in pre-trial custody. If we are going to continue to keep people in pre-trial detention, adequate resources must be allocated to ensure that inmates are not routinely locked-down. Occasional lockdowns are to be expected in large correctional facilities. However, the government and the institution must address the staffing issues that are causing a shocking number of lockdowns at the TSDC.
The TSDC provided information about the reason for the lockdowns. Virtually every lockdown was caused by “staff shortage.” It is unacceptable for people in pre-sentence custody to be subject 25 lockdowns in a single month because of inadequate staffing. This suggests that resources are not be properly allocated or managed to ensure individuals in pre-sentence custody, who are presumed innocent, are housed in humane conditions. The pattern of inadequate staffing over an extended period of time is particularly concerning and seems to reflect a level of indifference on the part of the institution or the government to the rights of individuals detained in pre-trial custody.
Mr. Fermah was housed in completely unacceptable conditions. There were frequent lockdowns resulting in an undue deprivation of his liberty, privacy and well-being. Those days of lockdown amounted to something approaching 40% of his time in custody, or close to a year. That kind of treatment is not in keeping with the humane system of corrections to which we aspire. It is not to be tolerated or simply treated as what we now expect from Toronto South.
We should have real concerns about conditions at the Toronto South. We should also have real concerns on behalf of a very young man incarcerated for a lengthy period of time who chooses to remain in Toronto to be closer to his family. Furthermore, we should not simply normalize unacceptable conditions in a jail. It must be remembered that people like Mr. Jama enjoy the presumption of innocence -- or at least he did until he pleaded guilty. But even after pleading guilty he remains a human being who retains every single right that other human beings in our society retain, except the right to be at liberty outside the institution. Lockdowns arising from staff shortages, and even those arising from security reasons, should not be seen as just the price to be paid by those in custody.
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.
While security concerns, accidents and incidents of inter-prisoner violence may well explain the occurrence of occasional lockdowns in any remand centre, no such justifications were advanced in this instance. Nor was the offender’s confinement a product of misconduct that led to a disciplinary response. The explanation was simple, systemic and, frankly, close to unconscionable: the offender was confined to his cell for days on end solely because of chronic understaffing. Put otherwise, his disheartening, if not appalling, living conditions (like those of many other prisoners) were solely attributable to the neglect or indifference of the state.
…[T]he lockdowns represent a modern form of the harsh Dickensian conditions that motivated the Victorian movement towards prison reform. The lockdowns are a regressive form of punishment that represents the opposite of an enlightened penal regime. On an individual level, it is notable that many of the people in the Toronto South -- a remand centre -- are charged with an offence but presumed innocent.
The fact that there are lockdowns for 25 percent of the time at the Toronto South, for Mr. Lall over the last two years is completely unacceptable. The reason for most of these lockdowns was the lack of staff. The same staffing issues the Court of Appeal addressed in 2016. This Court has repeatedly indicated that the staff resources problem should have been remedied years ago.
R. v. Lall, unreported, July 4, 2019, Ont. S.C.J., at p.7
I note that the United Nations Standard Minimum Rules for the Treatment of Prisoners [2] provides that every prisoner should have at least one hour of suitable exercise in the open air daily. Mr. Inniss was denied access to fresh air for over one-third of the time he was in custody (159 days at the Toronto East Detention Centre and 214 days at the Toronto South Detention Centre based on the number of full day lockdowns.) It is shocking that detention centres in Toronto in 2017 are consistently failing to meet minimum standards established by the United Nations in the 1950’s.
Virtually all of the lockdowns Mr. Borsi experienced were due to staffing shortages -- that fact alone speaks volumes. No inmate should have to undergo a lockdown, full or partial, because of staffing challenges faced by the correctional authorities.
Mr. Hussain-Marca has provided me with an affidavit outlining the impact upon him of the conditions at Toronto South Detention Centre. His evidence is depressingly similar to accounts that I (and my fellow judges) have been required to review in other cases recently. I write “depressingly” because the situation is both well-known and highly preventable. In almost every case, the reason for the lock-down is shortage of staff. This is not a question of a snowstorm or train delay causing some staff unexpectedly to have problems in getting to work. The problem is persistent and quite inexcusable.
This is a perfectly preventable problem that has been persisting for far longer than it ought. We collectively have a right to expect better from the system.
The more difficult conditions imposed on inmates and reduction of their minimal privileges, due mostly to staff shortages, inevitably increases the prisoner’s stress in a manner that is both unnecessary and unacceptable.
The complete lock-down of the offender on at least a quarter of his days in remand custody is an oppressive and here unexplained form of pre-sentence punishment.
[30] I heard no evidence that any significant steps are being taken to remedy the longstanding problems at the TSDC. While apparently aware of the repeated judicial concerns about the inhumane treatment of offenders, the Ministry has seen fit to ignore them.
(iii) The Proper Characterization of the Ministry’s Refusal to Remedy the Situation
[31] I adopt the various descriptions my colleagues have used to describe the situation at the TSDC. It is, to use their words, unacceptable, shocking, deplorable, harsh, oppressive, degrading, disheartening, appalling, Dickensian, regressive and inexcusable.
[32] As outlined earlier, the principles of individualization, parity and proportionality will in some cases require that extra credit be given to inmates who have endured harsh conditions in presentence custody. This is not an optimal solution and one that does not come without costs. Ideally, offenders should serve as much of their sentences as possible in correctional institutions where they have the benefit of rehabilitative programs tailored to their individual needs rather than be warehoused in detention centres. This maximizes the rehabilitative potential of the offender, which benefits not only the offender, but society as a whole, as an offender who is rehabilitated is less likely to reoffend once released. It follows that where the application of sentencing principles requires a court to attribute a greater proportion of the sentence to the period spent in presentence custody, the offender’s potential for rehabilitation is compromised and the risk of harm to the community increases.
[33] While the harm the current situation does to the overall penal objectives of the sentencing process is obvious, it appears to be a price the Ministry is willing to pay to avoid having to dedicate the resources necessary to ensuring that detention centres such as the TSDC are run properly. The fact that nothing has changed despite repeated criticisms by the courts over the course of several years shows the current situation can no longer be excused as a temporary problem. Rather, it appears to be a deliberate policy choice to treat offenders in an inhumane fashion at the cost of harm to the sentencing process rather than devote appropriate resources to the operation of the institution. Put simply, the Ministry has clearly chosen to save money rather than heed judicial concerns about the lack of humane treatment of inmates.
[34] In my view, we have reached the point where the inhumane conditions at the TSDC go beyond being an unfortunate circumstance and can more properly be described as essentially a form of deliberate state misconduct. As such, it becomes relevant not only to the principles of individualization and parity, but also to the communicative function of sentencing and the overarching sentencing goal of contributing to respect for the law.
(iv) The Communicative Function of Sentencing
[35] Mr. Persad has not alleged a breach of his Charter rights. However, as was noted in Nasogaluak, at para. 53, “a sentence can be reduced in light of state misconduct even when the incidents complained of do not rise to the level of a Charter breach”. The reason for this is that state misconduct can be relevant to the sentencing process without resort to a constitutional remedy, as was explained in Nasogaluak, at paras. 48-49:
Indeed, the sentencing regime under Canadian law must be implemented within, and not apart from, the framework of the Charter. Sentencing decisions are always subject to constitutional scrutiny. A sentence cannot be “fit” if it does not respect the fundamental values enshrined in the Charter. Thus, incidents alleged to constitute a Charter violation can be considered in sentencing, provided that they bear the necessary connection to the sentencing exercise. As mitigating factors, the circumstances of the breach would have to align with the circumstances of the offence or the offender, as required by s. 718.2 of the Code. Naturally, the more egregious the breach, the more attention the court will likely pay to it in determining a fit sentence.
This is consistent with the communicative function of sentencing. A proportionate sentence is one that expresses, to some extent, society’s legitimate shared values and concerns. As Lamer C.J. stated in M.(C.A.), [1996] 1 S.C.R. 500:
Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code. [para. 81]
A sentence that takes account of a Charter violation is therefore able to communicate respect for the shared set of values expressed in the Charter. In the words of Professor Allan Manson:
The communicative function of sentencing is all about conveying messages. The messages are directed to the community. They are about the values which ought to be important to the community.
(“Charter Violations in Mitigation of Sentence” (1995), 41 C.R. (4th) 318, at p. 323)
Indeed, s. 718 of the Criminal Code describes the fundamental purpose of sentencing as that of contributing to “respect for the law and the maintenance of a just, peaceful and safe society”. This function must be understood as providing scope for sentencing judges to consider not only the actions of the offender, but also those of state actors. Provided that the impugned conduct relates to the individual offender and the circumstances of his or her offence, the sentencing process includes consideration of society’s collective interest in ensuring that law enforcement agents respect the rule of law and the shared values of our society. [Emphasis added].
(v) Conclusion Respecting Enhanced Credit
[36] The Crown is correct that enhanced credit given because of the conditions at the TSDC has tended to be between one half and one day for each day spent in lockdown in addition to the usual credit for presentence custody: Oksem, at para. 31; Sanchez, at paras. 56-57; Lall, at p. 9; Jama, at paras. 17-22; Inniss, at para. 39; R. v. Ward-Jackson, 2018 ONSC 178, at paras. 50-52; R. v. Lu, 2019 ONSC 5933, at para. 96; R. v. Kabanga-Muanza, 2019 ONSC 1161, at para. 113; R. v. Selvaratnam, 2018 ONSC 3135, at paras. 39-40; R. v. Dibben, unreported, September 8, 2017, Ont. S.C.J., at pp. 10-11. However, in those cases the courts considered only the effect of the harsh conditions on the offender as they related to the principles of parity and individualization. They did not consider society’s collective interest in ensuring that state agents “respect the rule of law and the shared values of our society”. As explained earlier, in my view the time has come for that interest to be considered in the sentencing calculus, at least in cases involving the TSDC. In my view, judicial communication of those values requires credit in excess of what has been granted in the past.
[37] There is of course no mathematical formula for determining the appropriate credit. Having considered the conditions of Mr. Persad’s presentence custody as well as the Ministry’s persistent refusal to heed the repeated admonitions of this court that those conditions are intolerable, I have decided that Mr. Persad is entitled to a further one and a half days of credit for each day spent in lockdown. The increase in credit is intended to communicate this court’s affirmation of our community’s most basic values that have been shamefully ignored in this case.
IV. DISPOSITION
[38] Mr. Persad will be sentenced to imprisonment for three and a half years for the firearm possession charge, one year concurrent for possession of the magazine, one year consecutive for violation of the prohibition order, and four and a half years for each of the drug possession offences, to be served concurrently with each other but consecutively to the other sentences. The total sentence is therefore nine years.
[39] Mr. Persad will receive the usual credit of one and a half days for each of the 1010 days spent in presentence custody, which equals 1515 days, or approximately 50.5 months. This brings the total sentence to 57.5 months.
[40] In addition to this, Mr. Persad will receive a further credit of one and a half days for each of the 475 days he spent in lockdown, which amounts to 712.5 days, or approximately 24 months. The time left to serve is therefore 33 and a half months, which I will round down to 33 months.
[41] There will be an order made pursuant to s. 109 of the Criminal Code for life. The seized items will be forfeited in accordance with the draft order submitted by counsel.
Justice P.A. Schreck Released: January 10, 2020.
COURT FILE NO.: CR-18-90000177-0000 DATE: 20200110 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JEFFREY PERSAD REASONS FOR SENTENCE P.A. Schreck J. Released: January 10, 2020.
Footnotes:
[1] N. Mandela, Long Walk to Freedom: The Autobiography of Nelson Mandela (New York: Little, Brown and Company, 1995) at p. 23.
[2] Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.
