Court File and Parties

COURT FILE NOS.: CR/19/50000558/0000 CR/19/50000636/0000 DATE: 20200429 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N: HER MAJESTY THE QUEEN - and - NATHANIEL BELL

Counsel: Roy Beresowsky, for the Crown Alonzo Abbey, for Mr. Bell

HEARD: October 11; December 19, 2019; January 10, 31; and April 20, 2020

M. Forestell J.

REASONS FOR SENTENCING

History of the Proceedings

[1] On October 11, 2019, Mr. Bell pleaded guilty to the offences of possession of a loaded restricted firearm, knowing that he was not the holder of a license or registration certificate to possess the firearm; possession of a restricted firearm, knowing that he was not the holder of a license and registration certificate; trafficking in marijuana; and breach of a firearms prohibition order.

[2] The matter was adjourned to December 5, 2019 for sentencing submissions. Mr. Bell did not appear for his sentencing on December 5, 2019. He was subsequently arrested and was brought to court on December 19, 2019. The matter was adjourned until January 10, 2020 for sentencing submissions. Submissions were made on that date and then further adjourned until January 31, 2020. Records were obtained in relation to lockdowns and jail conditions and those were filed with the Court. A further adjournment was required, and the matter was then adjourned until April 20, 2020. The adjournments from December to January 2019 were to facilitate counsel obtaining records with respect to Mr. Bell’s medical condition and with respect to lockdowns at the detention centre. The long adjournment from January 31 to April 20, 2020 to complete the sentencing was caused, in part, by the schedule of counsel for Mr. Bell.

[3] On March 16, 2020, all matters in this Court that had been scheduled to be heard in the time period between March 17th and June 1st were adjourned by order of the Chief Justice until the first week in June because of the COVID-19 global pandemic.

[4] In order to avoid further delay, on agreement of both parties, sentencing submissions in Mr. Bell’s matter were completed on April 20, 2020 by telephone. Mr. Bell attended the hearing by telephone from Maplehurst Correctional Complex.

[5] Although I had previously heard evidence and submissions on the appropriate sentence to be imposed on Mr. Bell and on the calculation of credit for presentence custody, on April 20, 2020 I received additional evidence and submissions with respect to credit for pre-sentence custody and with respect to the appropriate sentence in light of Mr. Bell’s medical condition. The additional evidence included the full medical records of Mr. Bell and further lockdown records. I also received evidence and heard submissions on the impact of the COVID-19 pandemic.

[6] I reserved my decision on sentencing until today.

Positions of the Parties

[7] The Crown submits that, because of the seriousness of the offences, Mr. Bell’s role in the offences, Mr. Bell’s criminal antecedents and the fact that he was on bail at the time of the offences, a global sentence of 7 years’ imprisonment should be imposed before credit for pre-sentence custody. The Crown concedes that Mr. Bell should receive credit at 1.5:1 for his pre-sentence custody up to December 12, 2019 and that he should receive some enhanced credit beyond 1.5:1 for the time in custody up to that date because of the harsh conditions which he experienced in the detention centres. The Crown submits that Mr. Bell should not receive any credit beyond 1:1 for the time in custody after December 12, 2019 because he failed to appear for his sentencing and because the adjournment of the sentencing was at his request. The Crown also submits that the pandemic should not result in any enhanced credit for presentence custody nor should it operate to reduce the sentence imposed.

[8] Counsel for Mr. Bell submits that absent consideration for the pandemic, a sentence of 4.5 years’ imprisonment before credit for pre-sentence custody would have been appropriate. However, he takes the position that the ongoing pandemic should be taken into account to reduce that sentence because the sentence will have serious collateral consequences on the health and welfare of Mr. Bell. Counsel for Mr. Bell also submits that Mr. Bell should receive credit at 2:1 for all his presentence custody up to March 16, 2020 and additional credit of 5 to 1 for the period of time between March 16, 2020 and today’s date.

Circumstances of the Offences

[9] The circumstances of the offence are set out in Exhibit 1 which contains the facts read in to support the guilty pleas. Those facts may be summarized as follows:

1. Communications of Mr. Bell were intercepted pursuant to an authorization granted in January 2017. Between January 25, 2017 and February 28, 2017, Mr. Bell communicated with numerous individuals offering to sell marijuana. The sales were in the one-ounce range at an average price of $200.
2. On February 3, 2017 a telephone call was intercepted between Mr. Bell and Andrew Barnes. During the call, Mr. Bell told Andrew Barnes that he had received information that an individual was at a residence with $10,000 to $15,000 in a knapsack. Mr. Bell and Andrew Barnes devised a plan to attend at the location along with Ryan Barnes and to take the knapsack with the money. The three men attended the residence. One of them was armed with a handgun. They took the knapsack. When the individual with the knapsack resisted and produced a handgun, Ryan Barnes took that handgun. The three men left with the knapsack and the additional handgun. After leaving the residence, they saw a marked police car and ran. One of the men threw a handgun to Nathaniel Bell. Mr. Bell later gave the gun to Ryan Barnes. Police arrested Andrew Barnes with the knapsack which was found to contain $9,475.00.
3. Shortly after Andrew Barnes was arrested, Mr. Bell called Mr. Barnes’ girlfriend, Elissa Dewki. He told her to go to the police station and ask for the return of the money. He told her to tell the police that the money was hers and that she had given it to Andrew Barnes to buy a car. Ms. Dewki attended the police station and asked for the money but did not receive it. Ms. Dewki told Mr. Bell that she did not get the money. Mr. Bell asked Ms. Dewki to drive Mr. Bell and Ryan Barnes out of the area. At this point, Mr. Bell had picked up a Cybergun handgun and had it in his possession. Ms. Dewki picked up the two men. When Ms. Dewki stopped at a gas station, police approached the car. Mr. Bell ran from the car carrying the Cybergun which was loaded with 9 rounds of ammunition. Mr. Bell threw the gun into the backyard of a residence and the magazine onto the ground. Both were found later by the police. Two other firearms were found in Ms. Dewki’s vehicle.

Circumstances of Nathaniel Bell

[10] Mr. Bell is 25 years-old. He was 22 years-old at the time of the offences. He has a criminal record. He was convicted in 2015 of obstruct peace officer and assault peace officer and received a suspended sentence with 18 months’ probation and a five-year weapons prohibition. Also, in 2015, he was convicted of failing to comply with a recognizance and received a sentence of 1 day with credit for 30 days of presentence custody. In 2016 he was again convicted of failing to comply with a recognizance and was sentenced to 18 days’ imprisonment with credit for 12 days of presentence custody. On September 9, 2017, Mr. Bell was convicted of possession of a loaded firearm and unauthorized possession of a firearm in a motor vehicle. He was sentenced to 2 years and 9 months before credit for presentence custody of 15 months.

[11] Mr. Bell had a difficult upbringing. He was raised in the Jane and Finch neighbourhood in Toronto. His biological father was deported to Jamaica when Mr. Bell was a child. His mother and step-father were substance abusers. Mr. Bell was a witness to a murder when he was 11 years-old.

[12] Mr. Bell did not finish high school before his incarceration, but he has been employed as a general labourer. Since being in custody, Mr. Bell has earned his high school equivalency certificate. He has also completed programs dealing with anger management, forgiveness, crime prevention and drug abuse.

[13] Mr. Bell has two young children.

[14] Mr. Bell has a heart disorder, Wolff-Parkinson-White syndrome. This disorder appears to have been diagnosed around the time of Mr. Bell’s reincarceration in October of 2019. Records from Maplehurst (Exhibits 10 and 14) indicate that in the evening of October 10, 2019 Mr. Bell was ‘jumped’ by other inmates. A medical alert was called because Mr. Bell experienced two episodes of syncope (fainting). He also complained of nausea, dizziness, chest pain and headache. Mr. Bell was noted to be anxious and crying. He had been observed to have lost consciousness after the altercation. Mr. Bell was booked to see a doctor the next day. That examination did not take place because of an institutional lockdown. The appointment was rebooked for October 14, 2019. By the next day, October 12, 2019, Mr. Bell was having difficulty breathing and swallowing. In an assessment done at 2:00 p.m. on October 12, 2019, it was determined that Mr. Bell did not need to see a doctor until the 14th. Approximately 3 hours later, Mr. Bell was found unconscious on the floor of his cell. He complained of extreme head pain and was vomiting. EMS was dispatched. Mr. Bell was ultimately admitted to Trillium Hospital on October 13, 2019. The note of Dr. Bayliss, his attending physician, indicates that Mr. Bell was admitted with symptomatic Wolff-Parkinson-White syndrome on October 13th, that he required a few days in the hospital and that he might require inpatient cardiac ablation.

[15] Mr. Bell was returned to the jail by October 16th. He complained of chest pain on October 16th. He was told that he did not need to go to the hospital. On October 17th, he continued to complain of chest pain and was told that he would be seen by the doctor in the jail that day. It does not appear that he was seen by a doctor. He later complained further of chest pain. He was booked to see the doctor the next day. The records indicate that he was anxious and distressed. The first ablation procedure was booked to occur on November 7, 2019.

[16] Mr. Bell was granted bail just before his scheduled cardiac ablation. He apparently attended for that surgery. After his recovery from surgery, Mr. Bell was found to not be complying with the terms of his release.

[17] As I have already noted, he then failed to attend for his sentencing hearing and was subsequently arrested. [1]

[18] There is a further medical note from an attendance at the hospital on January 31, 2020. Mr. Bell experienced chest pain while at court. When he was taken to the hospital it was recommended that he remain in the hospital, but he chose to leave. The note from the emergency room physician indicates that the physician warned Mr. Bell of the risk of sudden death from the syndrome.

[19] Mr. Bell has had only one of two corrective surgeries required to treat the disorder. Mr. Bell also has asthma.

[20] In addressing the Court at his sentencing hearing, Mr. Bell took responsibility for his offences. He expressed remorse for his actions and expressed a desire to change his life. Mr. Bell said that his time in custody has been extremely difficult because of his medical condition and his fear of experiencing an exacerbation of his illness or contracting COVID-19. He is justifiably concerned that his underlying heart condition and asthma would make him vulnerable to complications from COVID-19. Mr. Bell explained that he has little contact with family because of the high cost of telephone calls from the jail and the fact that family members have lost their jobs because of the pandemic. He indicated in his remarks to the Court and in the affidavit filed, that his time in custody has had an impact on his mental and physical health.

Conditions of Presentence Custody

[21] The offence date for the 2017 conviction for possession of a loaded firearm was July 5, 2014. He was granted bail on those charges. The conditions of his bail required that he remain in his residence and that he not possess any weapons. In October of 2016 both of the sureties on that bail applied for relief. Mr. Bell did not surrender after the sureties applied for relief until April 6, 2017. At that point, the surety warrant was executed, and the recognizance was cancelled. The offences before me were committed after the sureties applied for relief and before Mr. Bell surrendered himself. He was not arrested on these charges until June 28, 2017. Before his arrest on these charges, Mr. Bell pleaded guilty to the 2014 gun charges in May of 2017. His sentencing was put over to September. The sentence of 2 years and 9 months before credit for presentence custody that was imposed in September of 2017 was served by September 7, 2018. He was released on bail on the current charges on June 26, 2019 and then rearrested on October 8, 2019. He was then released on November 6, 2019 in order to be able to undergo heart surgery. He received the surgery, but then was rearrested in December 2019.

[22] Mr. Bell’s presentence detention can be divided into the following distinct time periods that raise different considerations in terms of the calculation of presentence credit:

1. September 7, 2018 (the expiry of his sentence for the 2017 convictions) to June 28, 2019 (released on bail) = 292 days. Mr. Bell was detained at the Toronto South Detention Centre (“TSDC”) and at the Toronto East Detention Centre (“TEDC”). Although the records from the TSDC indicate that there were 172 days of lockdown from April of 2017 until October of 2019, only 26 of those lockdown days occurred during the 7 months attributable to the charges before this Court. During the 79 days he spent at the TEDC he was triple bunked 70 nights and he was offered yard only 33 times.
2. December 15, 2019 (rearrested) to January 31, 2020 (second day of sentencing submissions) = 48 days.
3. January 31, 2020 to March 16, 2020 (day that OSCJ suspended cases because of COVID-19) = 46 days.
4. March 16, 2020 to April 29, 2020 (time in custody during the global pandemic and before being sentenced) = 44 days. Mr. Bell has been incarcerated in Maplehurst Correctional Complex from December 15, 2019 until the present. The records indicate that there were 21 full or partial lockdowns in the time period between December 15, 2019 and April 18, 2020.

[23] In addition to the evidence of the lockdown records from the three jails, I have the affidavit of Mr. Bell and the medical records to which I have already referred. In his affidavit, Mr. Bell states that his physical and mental health has suffered as a result of the conditions experienced while incarcerated in those institutions. His experience was particularly stressful because of his ongoing serious medical issues. Mr. Bell stated in his affidavit that the lockdowns and resulting isolation and lack of hygiene caused tensions to rise and fights to occur more frequently. Mr. Bell was attacked while in custody. Although Mr. Bell requires another surgery, this has not been arranged while he has been in custody.

COVID-19

[24] Mr. Bell has been in custody for 44 days since the Court restricted operations as a result of the pandemic. The beginning of the spread of the virus in Ontario cannot be specifically marked, but March 16, 2020 can be used to mark the timing of the intensification of the spread of the virus.

[25] Counsel for Mr. Bell filed the affidavit of Dr. Aaron Orkin (Exhibit 13), a physician specialist in Public Health and Preventive Medicine. The affidavit of Dr. Orkin indicates that “[I]t is extremely difficult (near impossible) to limit a coronavirus outbreak in congregate living settings, especially those with close quarters, shared toileting and eating facilities, or service personnel moving between people confined to their rooms. It is extremely likely that COVID-19 will arrive in nearly every correctional facility in Canada and therefore extremely likely that almost all inmates in these settings will be exposed in one way or another.”

[26] The Crown took the position that it is speculative to conclude that Mr. Bell is at greater risk of contracting COVID-19 because of his detention. The Crown submits that the affidavit of Dr. Orkin filed on behalf of Mr. Bell should be given little weight because it fails to take into account the actual number of cases and fails to take into account the measures being taken by the institutions to contain the spread of the virus. He relies on the “Information Note April 14, 2020” issued by Institutional Services Division, Assistant Deputy Minister’s Office” (Exhibit 11). This Information Note indicates that the inmate population has been substantially reduced since March 16, 2020. It also indicates that out of the 5,929 inmates, 156 had been tested as of April 14, 2020. Of those tested, 121 were negative, 6 were positive and results were pending for 29. On that date three positive cases were at the Toronto South Detention Center and one was at Maplehurst.

[27] The information note provides general information about measures being taken in an attempt to control the spread of COVID-19 in the institutions. Personal visits have been suspended. The Information Note acknowledges that placement options for vulnerable inmates vary according to institution design. According to the information note, on admission, only inmates exhibiting symptoms are provided with a mask, asked to wash or sanitize their hands and kept two metres away from other inmates.

[28] While I agree that the number of cases of COVID-19 in detention centres as set out in the Information Note is relatively low, that figure was already out of date when it was received. As counsel made sentencing submissions on April 20, 2020, the government was announcing that the Ontario Correctional Institute would be closed because of an outbreak. All of the inmates from that institution, including the 60 inmates with COVID-19 were to be transferred to the Toronto South Detention Centre. Correctional Services Canada reported on April 20, 2020 that there was a total of 177 positively diagnosed inmates — up from 6 the previous day. It is clear the that the figures for the outbreak change rapidly. Dr. Barbara Yaffe, Ontario’s Associate Chief Medical Officer of Health, said within the last week, that ‘congregate settings’ like jails are ‘danger zones’ for infection. This is what Dr. Orkin has said in the affidavit before me. While I accept that the institutions are making efforts to adopt the best possible practices to contain the spread of the virus, inmates of jails are at an extremely heightened risk to contract the disease. Mr. Bell, who has both cardiac and lung conditions, is at a heightened risk to suffer severe complications if he contracts the illness.

Analysis

Appropriate Sentence

[29] In considering the appropriate sentence to be imposed on Mr. Bell I have considered the general purposes, principles and objectives of sentencing, set out in the Criminal Code, R.S.C., 1985, c. C-46. The fundamental principle of sentencing set out in s. 718.1 of the Code requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[30] Section 718 of the Criminal Code identifies the objectives of sentencing, including denunciation, specific and general deterrence, separation of the offender from society and the rehabilitation of the offender.

[31] I have also considered s. 718.2 of the Criminal Code which requires that I take into account other principles, including that a sentence may be increased or decreased depending upon the presence of any relevant aggravating or mitigating circumstances relating to the offence or the offender and that a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances.

[32] There is no question that the crime of possessing a loaded restricted firearm is extremely serious. The Court of Appeal for Ontario has repeatedly identified the seriousness of firearms offences in the Toronto area. [2]

[33] The Court of Appeal has held that in sentencing for firearms offences denunciation, deterrence and the protection of the public are the primary sentencing objectives. Generally, exemplary sentences are required for these offences. [3]

[34] The range of sentence for the offence of possessing a loaded firearm has been addressed by the Court of Appeal. In R. v. Nur, the Court of Appeal noted at para. 51 that the criminal offence of possession of a loaded firearm without a license ranges in gravity from "an outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade" to an otherwise law-abiding gun owner who has failed to obtain the proper license to possess the firearm. One important factor in assessing the seriousness of the circumstances of the offences within this spectrum is the degree of risk or danger to the public.

[35] Mr. Bell had the loaded handgun in public. He ran with the gun from a car and threw it into a residential backyard. The degree of danger or risk to the public was great.

[36] Other aggravating factors with respect to the circumstances of the firearms offences in this case are that Mr. Bell played a leadership role in the planning of a robbery and that he recruited Ms. Dewki to attempt to obtain stolen money and then to drive him and Mr. Barnes out of the area.

[37] Aggravating factors related to Mr. Bell’s personal background are that he had a criminal record at the time of the offences and was on bail with a surety warrant outstanding at the time of the offences.

[38] Mitigating factors are Mr. Bell’s guilty plea and his expression of remorse, his disadvantaged background and his significant efforts to rehabilitate himself while in custody by pursuing his education and completing programs. Mr. Bell is still a very youthful offender. He has some family support. He also has two young children and he hopes to participate in their upbringing.

[39] The range of sentence for an offender like Mr. Bell who has committed the offence of possession of a loaded handgun in circumstances where, as here, its use put the public at extreme risk, is 4 to 8 years.

[40] The offences of trafficking in marijuana and breach of a weapons prohibition call for consecutive sentences to the firearms offences.

[41] The principle of parity must also be considered in arriving at an appropriate sentence in this case. One of the co-accused, Andrew Barnes, pleaded guilty to trafficking in cocaine, possession of a loaded handgun, possession of a handgun and possession of property obtained by crime. He received a total sentence of 4.5 years before credit for presentence custody. Mr. Barnes had no record and was not on bail at the time of the offences. However, he also pleaded guilty to the more serious charge of trafficking in cocaine.

[42] Of course, sentencing is an individualized process and no two cases are identical. In addition to the difference between Mr. Bell and Mr. Barnes with respect to their criminal antecedents and the seriousness of the trafficking activity, Mr. Bell’s personal circumstances are markedly different than Mr. Barnes’.

[43] Mr. Bell’s medical condition makes him vulnerable to personal harm while serving his sentence. He will serve his sentence during the ongoing pandemic. He will be at increased risk of contracting the virus and suffering complications. He must face these risks and the anxiety that they must inevitably provoke without access to his family support which has been cut off by the restrictions at the jail. While phone calls remain available, the cost of telephone calls from the detention centres is prohibitive, especially now that Mr. Bell’s family members are without paid work because of the pandemic.

[44] Mr. Bell’s medical condition is a significant consideration in arriving at a sentence. Medical conditions that will make incarceration more onerous for an offender are collateral consequences properly considered as part of the personal circumstances of the offender.

[45] As the Supreme Court of Canada held in R. v. Suter, 2018 SCC 34: [4]

The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer ‘like’ the others, rendering a given sentence unfit.

[46] Mr. Bell’s medical problems would properly be considered as a collateral consequence even if he were not to serve the sentence during the pandemic. The additional impact of the pandemic makes this consideration even more significant. Recently, Pomerance J. comprehensively reviewed the cases considering the impact of the COVID-19 pandemic on sentencing. In R. v. Hearns, 2020 ONSC 2365, [5] she summarized the impact as follows:

15 How does all of this impact the fitness of sentence? Clearly, the pandemic does not do away with the well-established statutory and common law principles. However, the pandemic may impact on the application of those principles. It may soften the requirement of parity with precedent. The current circumstances are without precedent. Until recently, courts were not concerned with the potential spread of a deadly pathogen in custodial institutions.

16 COVID-19 also affects our conception of the fitness of sentence. Fitness is similar to proportionality, but not co-extensive with it. Proportionality dictates that the sentence should be no more than is necessary to reflect the gravity of the crime and the moral blameworthiness of the offender. Fitness looks at a broader host of factors. A sentence may be fit even if it is not perfectly proportionate. Fitness looks, not only at the length of a sentence, but the conditions under which it is served. As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.

17 Consideration of these circumstances might justify a departure from the usual range of sentence, such as that contemplated in R. v. Lacasse, 2015 SCC 64, para. 58:

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case.

18 The ‘specific circumstances of each case’ would, in today's environment, include the ramifications of the current health crisis. The point to be taken is this: a sentence may be reduced where it is necessary to denounce state conduct, or where it is necessary to account for other punitive consequences, or where the sentence would have a more significant impact on an offender. In this case, the impact is not attributable to the characteristics of the offender, though in some cases there may be heightened vulnerability. The impact is attributable to the social conditions of the time, which are very different than those in the past. COVID-19 is not a mitigating factor in the classic sense. However, it adversely affects conditions of imprisonment, and increases health risks for those in jail. On that basis, it is an important part of the sentencing equation.

[47] Pomerance J. added the qualification with the recognition that in taking into consideration the impact of COVID-19 when sentencing, the existence of a pandemic does not justify a sentence that is drastically outside the accepted sentencing range.

[48] I agree with and adopt the reasoning of Pomerance J. Applying these principles to the determination of a fit sentence for Mr. Bell, I have concluded that the appropriate sentence, before consideration of pre-trial custody, is a sentence of 4 years for the possession of the loaded firearm, 2 years concurrent for the offence of possession of a firearm, 1 month consecutive for trafficking in marijuana and 6 months consecutive for the breach of the prohibition order for a global sentence before credit for pretrial custody of 4 years and 7 months.

[49] This sentence is at the very low end of the range or just outside the range for these offences. It is justified because of the exceptional circumstances of this case where Mr. Bell will be serving his sentence in conditions that put his health at risk and therefore the sentence will be more onerous that it would normally have been and more onerous than it would be for someone without Mr. Bell’s underlying medical issues.

Credit for Presentence Custody

[50] The next issue that I must determine is the credit to be given for Mr. Bell’s pre-sentence custody.

[51] The Crown has indicated that Mr. Bell should be credited only at the rate of 1:1 for his presentence custody from December 12, 2019 to present because his actions delayed the sentencing. I do not accept this argument. While Mr. Bell’s actions did, to some extent, delay proceedings this does not change the fact that he has been imprisoned without earning statutory remission, as he would have done if the time was spent serving his sentence. I find that Mr. Bell should receive credit of at least 1.5:1 for his time in presentence custody. The total time in presentence custody is 429 days. Credited at 1.5:1 this amounts to 645 days before any enhanced or “Duncan” credit for harsh conditions.

[52] In R. v. Duncan, 2016 ONCA 754, [6] the Court of Appeal held that, “…in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5:1 credit referred to in s. 719(3.1). 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.”

[53] The underlying rationale for enhanced credit was recently explained by Schreck J. in R. v. Persad, 2020 ONSC 188: [7]

It is now well established that particularly harsh presentence incarceration conditions can justify credit beyond the ordinary credit for presentence custody. 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[.] [citations omitted]

[54] In this case, Mr. Bell was subject to lockdowns, triple bunking and very limited access to fresh air on at least 117 days of his presentence incarceration (TSDC- 26 days of lockdowns; TEDC -70 nights of triple bunking and 36 days of no yard; Maplehurst - 21 days of lockdown). The courts have repeatedly condemned such conditions. [8] These conditions justify enhanced credit beyond 1.5:1.

[55] In addition, the conditions of Mr. Bell’s detention during the approximately 45 days of the global pandemic have been particularly harsh. The harshness of conditions in the pandemic are not due to state action and the enhanced credit for this time period is not meant as a condemnation of the actions of the correctional institution. Enhanced credit for this time period merely acknowledges the conditions and their impact on this offender.

[56] There is no mathematical formula for determining the amount of enhanced credit. I conclude that Mr. Bell should receive an additional 85 days’ credit or just over one-half day for each day of particularly harsh conditions. In total therefore, Mr. Bell will be credited for 730 days or 2 years for his presentence custody, leaving a sentence of 2 years and 7 months to serve.

Conclusion

[57] Accordingly, I impose the following sentence:

On Indictment 19/5-636:

• On Count 1, trafficking in marijuana: 1 month’s imprisonment, to be served consecutively;
• On Count 6, possession of a loaded handgun: 4 years’ imprisonment before credit for presentence custody. After credit for 430 days of actual presentence custody credited as 2 years, Mr. Bell will serve a sentence of 2 years imprisonment. This sentence will be served consecutively;
• On Count 7, possession of a restricted firearm: 2 years to be served concurrently to all sentences;

On Indictment 19/5-558:

• On the charge of breach of weapons prohibition: 6 months to be served consecutively to all other sentences.

Total sentence of imprisonment: 4 years and seven months before credit of 2 years for presentence custody, leaving 2 years and 7 months to be served.

• There will be a prohibition order for life under s. 109(1)(b) and 109(3) of the Criminal Code.
• There will be a DNA order, pursuant to s. 487.051(3) of the Criminal Code, requiring Mr. Bell to provide such number of samples of bodily substances that are reasonably required for the purpose of forensic DNA analysis.
• The firearm, ammunition and magazine shall be forfeited.

M. Forestell J.

Released: April 29, 2020

Footnotes

[1] The Crown has argued that I should take into account in determining this sentence, the fact that Mr. Bell faces new substantive charges from the circumstances of that arrest. I decline to do so. If Mr. Bell is convicted of other charges, he will be sentenced by the court that has jurisdiction over those charges. To take the charges into account on this sentencing risks the imposition of a double penalty for the same offence.

[2] R. v. Danvers, [2005] O.J. No. 3532, 201 O.A.C. 138 and R. v. Brown, 2009 ONCA 563

[3] R. v. Nur, 2013 ONCA 677 at para. 206; R. v. Smickle, 2014 ONCA 49 at para. 18

[4] 2018 SCC 34

[5] 2020 ONSC 2365

[6] 2016 ONCA 754

[7] 2020 ONSC 188, at para. 27

[8] R. v. Tyrell, 2013 ONSC 6555; R. v. Grizzle, 2013 ONSC 6523; R. v. Douale, 2018 ONSC 3658