COURT FILE NO.: CR-19-40000251-0000
DATE: 20210830
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Gregory Bernard
Counsel: T. Vogel, for the Crown M. Huberman, for Mr. Bernard
HEARD: August 27, 2021
M.D. FORESTELL J.
REASONS FOR SENTENCE
[1] Gregory Bernard entered guilty pleas to three charges: possession of a loaded prohibited firearm, breach of a weapons prohibition and possession of cocaine for the purpose of trafficking.
[2] The facts underlying the plea are set out in the agreed facts. Mr. Bernard rented a car and failed to return it on time. The rental car agency repossessed the car. The car was found to contain a TAURUS .40 Calibre semi-automatic pistol (handgun) loaded with seven rounds of .40 calibre ammunition. This firearm meets the definition of prohibited firearm.
[3] Also in the car, were another nine rounds of .40 calibre ammunition and eight packages of cocaine, five of which contained drug weights that are commonly trafficked at the street level.
[4] The total weight of cocaine found in the car was 35.03 grams with a street value of $2,600 to $3,250.
[5] Mr. Bernard has a criminal record dating back to 1997. He has 35 prior criminal convictions. These offences include firearms related offences, possession of drugs and breaches of court orders.
[6] The primary sentencing objectives in sentencing for firearms offences are denunciation and deterrence. Much has been written about the significant threat to the safety of our community from the prevalence of guns and gun violence.
[7] The combination of drugs and guns has been described as a “deadly combination”.
[8] Even first offenders who are convicted of possessing loaded firearms generally receive penitentiary sentences.
[9] Mr. Bernard is not a first offender. There are other aggravating factors in this case as well. The loaded gun was being transported in public places and Mr. Bernard was subject to more than one weapons prohibition.
[10] There are also mitigating factors.
[11] Mr. Bernard, as a black man, is a member of a group that has been historically underserved in our community and that is overrepresented in our prisons. On an individual level, Mr. Bernard had a difficult childhood and adolescence. He was the victim of abuse at the hands of his father and witnessed abuse against his mother. He left home and was involved in criminal acts at a young age.
[12] To his credit however, Mr. Bernard had a significant gap in his criminal record after his release from prison in 2014 and up until his arrest on these charges. In that time, he became a member of a union and was employed in construction. He was earning money legally and supporting his son. A car accident a few months before these offences prevented him from working and this was a factor in his return to the commission of crimes.
[13] Since his arrest, he hast taken significant steps towards rehabilitation. Early in his incarceration, he sought counselling from the pastor at his mother’s church and remains connected to the pastor. His mother has always been and remains an important support for Mr. Bernard.
[14] Although the COVID 19 pandemic has essentially curtailed programming in jail, Mr. Bernard completed several programmes before the pandemic. In particular, I note his academic achievement in completing a college course while in custody.
[15] Mr. Bernard’s guilty pleas are a further mitigating factor.
[16] I agree with both counsel that the appropriate sentence in this case, before consideration of the conditions of pre-sentence custody, would have been a sentence of seven years’ imprisonment.
[17] Although counsel agreed on the appropriate sentence absent consideration for pre-sentence custody, they did not agree on the consideration to be given for Mr. Bernard’s time in custody.
[18] Counsel for Mr. Bernard argued that Mr. Bernard should receive the following credit:
(1) Credit in accordance with R. v. Summers[^1] which would be 1,175 actual days credited at 1.5 to 1 for a total of 1,762.5 days;
(2) Credit in accordance with the principles in R. v. Duncan[^2] of 1.5 days for every day of lockdown or 456 lockdown days credited at 684 days; and
(3) Credit of .5 days for every day served during the COVID 19 pandemic or 536 days credited as 268 days.
[19] This proposed credit would total 2,714 days which is more than the proposed seven-year sentence, leaving Mr. Bernard in the position of a time served sentence. The defence proposed the imposition of a suspended sentence and a period of probation.
[20] The proposed Duncan credit would effectively reduce the sentence of seven years by over two years and seven months to approximately four years and four and one-half months.
[21] Counsel for the Crown takes no issue with the Summers credit. Nor did Ms. Vogel argue for the Crown that Mr. Bernard should not receive consideration for the hardships of his pre-sentence incarceration. The Crown’s submission was that the proposed credit is excessive and would render the sentence unfit.
[22] I have carefully considered the positions of both counsel and the authorities that they have provided.
[23] While the approach to credit for presentence custody has become complex in recent months, some principles are clear and consistent.
[24] Particularly harsh presentence conditions can justify credit beyond the ordinary credit for presentence custody (see R. v. Duncan at para. 60).
[25] The decision to award additional credit for credit for harsh conditions of presentence custody is discretionary and there is no mathematical formula that must be applied in determining the quantum of such credit. (See, for example: R. v. Rajmoolie, 2020 ONCA 791; and R. v. Brown, 2020 ONCA 196 at para. 13.)
[26] Credit for harsh conditions can serve two functions. Taking into account the impact of the conditions on the offender and giving credit for them serves to ensure that the sentence is proportionate and individualized. In addition, credit for harsh conditions can serve a communicative function. It conveys the message to state actors that inhumane conditions are unacceptable. (See: R. v. Persad, 2020 ONSC 188.)
[27] The history of unacceptable conditions at the Toronto South Detention Centre is well-documented in the caselaw. Justice Schreck set it out comprehensively in R. v. Persad. That case was heard near the end of 2019. The record in this case and others shows that little has changed since Persad was decided.
[28] I accept and adopt Justice Schrecks’ reasoning and conclusions in Persad.
[29] As was recently explained by the Ontario Court of Appeal in R. v. Marshall, 2021 ONCA 344 at para. 52:
The ‘Duncan’ credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the ‘Summers’ credit will be deducted. Because the ‘Duncan’ credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.
[30] In my view, in the case before me Mr. Bernard is entitled to significant consideration and a reduction in the otherwise appropriate sentence to take into account the days of lockdown. I have taken into account the affidavit filed by Mr. Bernard that sets out the impact of the lockdowns on him. I have also taken into account the fact that Mr. Bernard had embarked on a path of rehabilitation that included attending programming, pursuing educational opportunities and seeking counselling. All of this was interrupted by the conditions he encountered, particularly during the pandemic.
[31] The limited opportunities to communicate with family and access spiritual support, the inability to access programmes and educational opportunities and the stress and fear due to the enhanced risk of a congregate setting justify a reduction in the otherwise appropriate sentence.
[32] As I have already indicated, the mitigation for hardship is discretionary and there is no mathematical formula. I must balance the need for a fit sentence that meets the relevant sentencing objectives and a recognition of the impact of conditions on Mr. Bernard. I therefore have concluded that the total reduction in sentence pursuant to the principles in R. v. Duncan for the hardships of lockdowns and COVID restrictions should be two years. The reduction of two years recognizes the excessive hardships and their impact on Mr. Bernard. It also serves the communicative purpose set out by Justice Schreck in R. v. Persad.
[33] To reduce this sentence below five years would render the sentence unfit.
[34] The sentence that I would have imposed before consideration for exceptionally harsh conditions of pre-sentence custody would have been five years’ imprisonment for Count 1, one year consecutive for Count 5 and one year consecutive for Count 7 for a total sentence of seven years.
[35] That sentence must be reduced by two years in accordance with the principles in R. v. Duncan for the reasons that I have already set out. The Court of Appeal in Marshall made it clear that a Duncan credit is properly shown as a mitigating factor, reducing the otherwise appropriate sentence and not as credit for time served.
[36] To reduce the otherwise appropriate sentence from seven years to five years, I impose a sentence of five years on Count 1 and impose concurrent sentences of one year on each of Counts 5 and 7.
[37] From the remaining sentence of five years, Mr. Bernard is entitled to credit of 1,726.5 days pursuant to Summers. This leaves 98 days for Mr. Bernard to serve.
[38] I also make a DNA order and a s. 109 order for life.
[39] The victim fine surcharge is waived in light of the fact that Mr. Bernard has been unable to work for over three years.
M. Forestell J.
Released: August 30, 2021
COURT FILE NO.: CR-19-40000251-0000
DATE: 20210830
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and -
Gregory Bernard
REASONS FOR SENTENCE
Forestell J.
Released: August 30, 2021
[^1]: 2013 ONCA 147, aff’d 2014 SCC 26, [2014] 1 S.C.R. 575 [^2]: 2016 ONCA 754