COURT FILE NO.: CR10-7512
DATE: 2021-09-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
M. Dean and S. O’Brien, for the Crown
- and -
JEREMY HALL
D. Derstine and C. Sheppard for Mr. Hall
HEARD: June 28, 29, 30 and July 2, 2021
REASONS FOR SENTENCE
A. J. Goodman, J.:
[1] This is a retrial of the case. Jeremy Hall (“Hall”) was charged with first-degree murder and is convicted of second-degree murder after trial with a judge sitting alone.
[2] Hall was adjudged to have shot and murdered Billy Mason (“Mason”) on February 24, 2006, and later took steps to destroy the corpse.
[3] There is a Charter application in relation to the prolonged period of time Hall spend in administrative segregation while incarcerated at both federal and provincial institutions.
[4] Mr. Dean, on behalf of the Crown, submits that the period of parole ineligibility be set at the very high end of the possible range - at 23 years- based on the numerous, serious aggravating features in this case, the lack of mitigating factors, and the after-the-fact conduct, amongst other considerations. In addition, the Crown requests various ancillary orders.
[5] Mr. Derstine, counsel for Mr. Hall, argues that the parole ineligibility period be fixed at 14 years with a three to four-year reduction premised on various Charter breaches. The defence submits that breaches of ss. 7, 9, 10(b) and 12 of the Charter properly justify the reduction of the parole ineligibility period. The defence argues that there ought not to be an increase of the period of parole ineligibility to the degree sought by the Crown based on the inappropriateness of their range in accordance with the relevant jurisprudence.
[6] Hall testified at the sentencing hearing and the Crown called two witnesses. Victim Impact Statements were filed along with reference letters and other exhibits.
[7] Hall is to be sentenced to life imprisonment. The only issue to be decided is the period that he must serve before he is eligible to apply for parole, which must be fixed at between 10 and 25 years.
[8] Before I address the matter, I wish to emphasize that any period of parole ineligibility that I determine is neither intended nor does it reflect the worth of Mason’s life. I must point out that with a conviction for second degree murder, the imprisonment may continue for the rest of Hall’s natural life. Ultimately, it will be for the Parole Board of Canada to decide when, if ever, Hall has been sufficiently rehabilitated that he is no longer a danger to others in our society and that he may be released on parole. My determination of the minimum period of time at which Hall will become eligible for release on parole does not necessarily mean that he will be released upon the expiration of whatever minimum period I impose today.
The circumstances of the offence:
[9] My circumstances of the offence are detailed in my written reasons for judgment reported at 2021 ONSC 28.
Victim Impact Statements:
[10] Three Victim Impact Statements (“VIS”) were filed with the Court.
[11] The loss of Mason has greatly affected members of his family and friend. I cannot do justice to the heartfelt, expressive, and deep emotions felt and expressed by these individuals in their respective VIS by summarizing them here. While I will only be referring to segments of some of the VIS’, all of them have been reviewed and considered.
[12] Mason’s mother, Donna Dixon, describes her own experience from the loss of Billy as well as how the whole situation affected her and Mason’s own daughter. She writes that Billy was a good person, a loving son, and devoted father. He was never physically threatening to anyone. She cannot imagine how scared he must have been when Hall showed up at his apartment. She also writes that all knew her son was not a crackhead and never wanted a part of the lifestyle that Hall chose. The loss of Billy's life has had a ripple effect on the entire family. She spent every minute of every day searching for him for four and a half years. Billy's daughter has a lot of anger, she now knows the details of her father’s death. The pain and anguish are too overwhelming for her as she is still a young adult. The family has also gone through financial hardship throughout the years including taking time to attend the court appearances. She is exhausted from the reality she faces everyday and has been grieving for the past 14 years.
[13] Chelsea, Mason’s daughter, writes that she will never be able to fully recover mentally from what has happened. Billy was a major part of her life growing up. After finding out that she was going back to court after years of believing everything was at rest sent her into a spiral. This included developing an eating disorder due to her chronic anxiety and depression. She wants to live a normal life but that has been stolen from her she wants to feel safe again but know that she never will be. She is broken.
[14] Shawna Guitar, a very good friend of Billy's, writes that she has supported Donna over the course of these many years she also spent years helping the family search for Billy. She struggled for years to try to come to grips with all of this. She writes that Hall’s actions have destroyed the lives of so many people, including his mother, brother, daughter, grandparents and aunts.
[15] Before I move on, and without taking anything away from the profoundly emotional and sincere comments referenced in the various VIS, I am unable to consider any of the statements therein with respect to what the writers opine is the appropriate sentence or their suggestions about any maximum sentencing considerations. Those statements go beyond the admissible nature and scope of VIS in criminal proceedings.
[16] However, I want the family and friends of Mason to know that I am aware of the utter devastation caused by his death. I have not failed to understand your pain and sorrow and I have not forgotten the tragedy of his death. No one in this courtroom could help but not be moved by the heartfelt sense of bereavement and loss felt by the family and friends, which have been vividly described in this hearing.
[17] Nothing I do here will bring Mason back nor expunge the grief felt by his family. However, I cannot exact vengeance. The focus at this stage of the proceedings is what sentence I am to impose based on fairness, balancing of judicial principles, the case law, and on the circumstances of this case and the offender.
The circumstances of the offender:
[18] No pre-sentence report was prepared in this case. However, as mentioned, extensive evidence was adduced at the sentencing hearing on behalf of Hall, albeit principally on the Charter relief being sought. Submissions by counsel were made on his behalf. I have also learned much about the offender during the course of the trial, through the evidence presented by the parties and from his own testimony.
[19] Mr. Hall was born in 1973 and raised in Hamilton. He has three children. He has the support from his daughter, Raine, who was present in court during the proceedings. Raine writes that her father’s intellect is unmatched and that he has always guided her through the trials and tribulations of her life, He is her best friend and her idol. Hall created Dead Time Art studio and gave her ownership of it to make it into something remarkable. Hall draws in jail and he appears to have found an interest and talent in art. She recalls that her childhood with her father was awesome. She has supported him throughout the trial. He has never failed to show his admiration and appreciation for her.
[20] Hall also has some favourable character references from other individuals who penned letters. Jason Poisson writes that he is impressed by Hall’s intellect, penmanship and eloquence. Hall was able to identify how art and creativity was a powerful mechanism which allowed for freedom, expression, and solace. He learned much about Hall's life but hesitates to get involved with the specifics of Hall's difficulties with the criminal justice system. Oliver Roberts writes that he runs an art gallery in Toronto. He also got to meet Raine and has had numerous conversations with Hall. Murray Eaton, who testified at the trial, writes that Hall has shown love and concern for his children and sends money to them to pay for their shoes, clothing and related items. Hall always has the best interest of his children in mind. He believes that Hall presents himself as a man totally reformed in thought and deed.
[21] I note that some of these references are not familiar with Hall’s record, his lifestyle and prior criminal antecedents.
[22] Hall has a significant prior criminal record, which I will address later in these reasons.
The Governing Principles:
[23] Under s. 745(c) of the Criminal Code, on conviction for second degree murder the offender must be sentenced to life imprisonment, with no eligibility for parole for a fixed period ranging from a minimum of 10 years to a maximum of 25 years.
[24] Section 745.4 empowers the sentencing judge to increase the general parole ineligibility period from the minimum of 10 years to the period that the judge deems fit, up to the maximum of 25 years. Section 745.4 requires that in exercising his or her discretion, the trial judge have regard to the character of the offender, the nature of the offence, the circumstances surrounding its commission, and, where applicable, the recommendation of the jury.
[25] In R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, the Supreme Court of Canada articulated the standard to be applied in assessing the exercise of a trial judge's discretion under s. 744 [now s. 745.4] as follows:
... as a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in s. 744, the offender should wait a longer period before having his suitability to be released into the general public assessed. To this end an extension of the period of parole ineligibility would not be “unusual”, although it may well be that, in the median number of cases, a period of 10 years might still be awarded.
[26] As well, the Supreme Court held that the power to extend the period of parole ineligibility need not be sparingly used and is not restricted to "unusual circumstances." The court recognized that "[i]n permitting a sliding scale of parole ineligibility, Parliament intended to recognize that, within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability”: at pp. 242-243.
[27] Both Crown and defence counsel have referred to a number of authorities setting out parole ineligibility findings in cases of second-degree murder. In support of his position, Hall provided numerous authorities suggestive of a range of parole ineligibility between 12 and 16 years. The Crown furnished cases where parole ineligibility ranged from 17 to 22 years. I do not intend to reference all of them.
Analysis:
[28] This court, or any court, is guided by the principles of sentencing as set out in ss. 718 to 718.2 of the Criminal Code. As directed by s. 718 of the Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a peaceful, and safe society by imposing just sanctions that reflect enumerated objectives.
[29] The objectives relevant to this case are denunciation of the unlawful conduct, specific deterrence, separation of offenders from society where necessary, provide a sense of responsibility in the offender while acknowledging the harm done to the victim and the community, and rehabilitation. It is important to impose a sentence that promotes a sense of accountability and an acknowledgment of the harm done to victims and to the community.
[30] The circumstances of the offence and of the offender must be analyzed to identify the aggravating and mitigating factors. In particular, in assessing s. 745.4 factors and in deciding whether to increase the period of parole ineligibility, all of the objectives of sentencing as found in ss. 718 to 718.2 are relevant.
Mitigating Factors:
[31] There are negligible, if any, mitigating factors. Hall has not led a pro-social life and is a self-described career criminal.
[32] I observe that Hall has been polite and respectful during the entire course of this trial. As referenced in my judgment, he is very articulate and intelligent.
[33] It is not an aggravating factor that Hall pleaded not guilty to first degree murder and had a second trial. This was not a frivolous trial as Hall was convicted of the lesser offence. However, he cannot benefit from the mitigation that flows from a plea of guilty with the expressed or implied acceptance of remorse and responsibility for the charged crime. Hall has steadfastly maintained his innocence and denies any involvement and his level of culpability in this murder.
Aggravating Factors:
[34] There are a number of serious aggravating factors in this case.
[35] Hall’s criminal record began in 1988 with numerous youth court findings of guilt. It continued on as an adult offender, unabated over the course of many years. Convictions include assault, theft, possession of narcotics, attempted breaking and entering with intent, failing to comply with recognizances, escaping lawful custody, and the 1995 conviction for robbery with violence, where he received a two year sentence in jail. In 1995, there are also attempt obstruct justice counts as well as a theft. Numerous other convictions for thefts, assaults, and dangerous operation of motor vehicles continued in the late 1990s. In 2000, he was convicted of aggravated assault and received 54 months in jail. This was appealed and the sentence was varied to three years. In 2002, he was convicted of assaulting a police officer and received 60 days in jail consecutive. In 2004, he was found guilty of dangerous operation of motor vehicle and of flight while being pursued. This warranted 60 days on each charge concurrent with some presentence custody. In 2006, there was another dangerous operation of a motor vehicle charge and drive while disqualified, where he received three months jail with 51 days of presentence custody. A conviction that postdated the events in question occurred on June 28, 2016 when he was convicted after pleading guilty to manslaughter. He received a two-year concurrent sentence with this sentence being served at that time for first degree murder. The circumstances of that manslaughter conviction and the surrounding events where the subject of evidence and extensive submissions in this sentencing hearing. With this background, the defence says that Hall does not have an unrelenting history of violence.
[36] Hall has also been subject to numerous misconducts while housed at various custodial institutions while awaiting trial and re-trial. These misconducts over the years include assaultive behaviour, contraband, and damage to property.
[37] The nature of the murder itself was senseless and cold blooded. The subsequent implementation of a plan to destroy and conceal evidence is also aggravating. Following the murder, Hall and Jason Lusted began the process of covering up the murder by burning the truck used to transport Mason, stealing another truck, and hiding the firearm at West Town Auto. The burning, breakdown/dismemberment, and overall indignity to Mason’s body is extremely aggravating. Hall’s disposal of Mason’s remains into animal feed bags and eventually transporting them to some unknown location is also a weighty aggravating feature. These acts were almost successful in covering-up the murder.
Application of the legal principles to this case:
[38] It is clear that sentencing ranges are merely guidelines and a judge must apply all of the considerations that flow from Part XXIII of the Code in order to arrive at a just and proper sentence. Sentencing remains an individualistic process requiring a careful exercise of judicial discretion. However, if a trial judge is considering going towards the high end of the range, in cases of severe or brutal violence leading to second degree murder, there must be measured and articulable reasons for doing so.
[39] In this case, the murder committed by Hall does bear some elements of planning. However, for reasons expressed in my judgment, I was not satisfied beyond a reasonable doubt that the Crown had established planning and deliberation for first degree murder. It can be gainsay whether or not it can be categorized as a spontaneous or spur-of-the moment killing. That being said, there is some evidence of motive that had its genesis from a build-up of rage and blame for the shooting by persons unknown at Hall’s Hamilton residence with his family in harm’s way; all seemingly attributable to Mason’s erroneous information regarding a drug rip, as referenced by Hall and explained by other witnesses.
[40] The Crown submits that, taking into consideration each of the factors listed in s. 745.4 of the Code, the appropriate period of parole ineligibility the Court ought to impose on Hall is near the maximum term. Hall is a previously convicted violent offender who, while subject to a lifetime firearm prohibition order, senselessly shot and killed Mason, after carefully planning a confrontation over a past grievance. The motive for the killing was so that Hall could have the satisfaction of revenge. The subsequent retrieval, burning, mutilation and disposal of Mason's body is shocking in its callousness and will deprive Mason's loved ones of his final resting place forever. He has continued to engage in misconduct and violence even while in custody after his arrest in October 2010, including the gratuitous beating of inmate Kevin Sawa, amongst other assaults.
[41] As conceded by the defence, Hall’s record is unenviable and it is replete with crimes of violence along with many other convictions. No one is shying away from the fact that Hall is a career criminal.
[42] While, there is no expert or medical evidence about Hall’s prospects for rehabilitation or dangerousness to society at large, I am persuaded by the Crown that he remains a moderate risk to reoffend or poses a danger to the community, all of which will have to be assessed by the Parole Board in due course.
[43] The shooting of Mason in the field, where the body was left to decompose, followed by the subsequent retrieval and destruction of evidence by taking Mason’s body and reducing it to bone and ash with all of the latter post-offence conduct here is more or equal to the level found in other cases presented by the parties, in particular those afforded by the Crown.
[44] In considering the offender and the offence, with respect, I am not persuaded by the defence that the 14-year parole ineligibility is apposite. Counsel’s able argument includes delineating the cases provided in support of his position, inter alia, by reasoning of the public nature or locus of the shooting. See for example, R. v. Largie, [2005] O. J. No. 855, (S.C.), R. v. Allen, [2004] O.J. No. 5974 (C.A.), R. v. Kim, 2004 CanLII 32118 (ON CA), [2004] O.J. No. 119, (C.A.). Granted this event did not occur in a public context, I remain unpersuaded by counsel’s overall submissions and the authorities provided in support.
[45] As examples, in R. v. Stewart, 2008 CanLII 70846 (ON SC), [2008] O.J. No. 5449 (S.C.), the accused was convicted by jury of second-degree murder. The Court imposed a 16-year period of parole ineligibility. This case is distinguishable as it does not involve the dismemberment of the deceased’s body. The youthful accused in Stewart expressed remorse for his actions and his family vowed to help him rehabilitate.
[46] In R. v. MacFarlane, [1988] O.J. No. 1310, (S.C.), the trial judge imposed a period of 16 years. The judge considered the accused’s long history of mental illness. The accused was considered a dangerous man with a serious psychiatric disorder. The accused’s appeal was dismissed. This case is distinguishable given the accused’s mental illness. There is also no indication that the accused attempted to hide the body.
[47] In R. v. Doucette, 2015 ONCA 583, the accused appealed the sentence of life imprisonment without eligibility for parole for 15 years for second degree murder. The appeal was unanimously dismissed. The trial judge had specifically addressed the use of guns by imposing an exemplary sentence to achieve general deterrence. The accused did not dismember nor conceal the deceased’s body. The accused was 20 years old at the time of the offence.
[48] In R. v. Monney, [2017] O.J. No. 845, 2017, (S.C.)., the two offenders were convicted of second-degree murder. They were sentenced to life imprisonment without eligibility for parole for 15 years. The court considered Stewart and Doucette and found Stewart highly analogous given the gang involvement by the offenders in this case and in Stewart. This case is distinguishable because the Court found that the youthful ages of the offenders (18 and 21) were mitigating factors. Rehabilitation was possible for both. The two offenders did not dismember the body nor attempt to hide the deceased’s remains. One of the offenders expressed regret for the murder.
[49] In R. v. Jackson, 2013 ONCA 632, the appellant was convicted of first-degree murder and imposed a 15-year period of parole ineligibility. The Court of Appeal unanimously dismissed the appeal. The appellant committed the offence just after being released from custody for a prior offence. He shot the deceased in the back as the deceased was fleeing. He had a lengthy criminal record with several gun offences and robberies. The accused did not dismember the deceased. The trial judge followed the recommendation of 11 jurors.
[50] In R. v. Diakew, 2007 BCSC 364, the accused entered a guilty plea for second degree murder. The court imposed a period of parole ineligibility of 15 years. This case is distinguishable on several grounds. The accused entered a guilty plea, he cooperated with police, he expressed remorse, and counsel submitted joint submissions on a recommended sentence. The court followed this joint submission.
[51] In R. v. Persaud, 1999 CanLII 1115 (ON CA), [1999] O.J. No. 2989 (C.A.), the accused appealed his convictions for second degree murder and attempted murder. Eight jurors recommended 10 years. The trial court set 15 years. The Court of Appeal unanimously dismissed the appeal. The offence occurred in a public place where other individuals were put in danger. The appellant was 19 years old at the time of the offence. He had a Youth Court record for robbery and use of a firearm but no violent offences. There was no dismemberment of the deceased.
[52] In R. v. Martel, 2019 BCSC 2233, the accused pled guilty to the lesser included offence of second-degree murder for the murder of his spouse in her own home, which she no longer shared with the accused. The attack was violent and prolonged. The accused was sentenced to 14 years of parole ineligibility. While the murder was graphic, there was no dismemberment. The accused did not have a record of violence. He expressed remorse for his actions. He pled guilty to the lesser offence and spared the deceased’s family a long trial.
[53] In R. v. Nickason, [1998] O.J. No. 446 (S.C.), the accused pled guilty to second degree murder. The accused beat and murdered the deceased, placed the deceased in the trunk of his car, and attempted to hide the body by burying him. The accused in this case pled guilty, was only 26 years old at the time of the offence, and his prior criminal record was not serious. The accused’s post-offence conduct was serious. He threatened the deceased’s family, pretended that the deceased was merely missing, and forced others to help him re-bury the body. However, there was no dismemberment. This case is distinguishable because counsel jointly submitted and sought a 14-year period of parole ineligibility.
[54] In sum, the defence cases are either distinguishable or I find that those particular cases, along with the majority of the authorities provided by the defence, are of marginal assistance to my determination of the circumstances of this offence and offender. In my opinion, the defence’s proposed sentence falls short and does not adequately address the relevant principles of sentencing in this case.
[55] Overall, I tend to agree with the Crown’s general approach and am persuaded that the aggravating factors here are near the level of seriousness as in other cases proffered in support of its position. I also acknowledge the very valid concerns raised by Mr. Dean in his final submission in addressing the principles of sentencing offenders who commit a brutal murder with the post-offence conduct as found in this case.
[56] In R. v. Brunet, 2010 ONCA 781, Karakatsanis J.A. (as she then was) stated at para. 20: “Where a particularly egregious offence is coupled with the most aggravating of offender characteristics such as a history of violence and a high risk of recidivism, the uppermost range of 20 to 25 years will be appropriate.”
[57] In delving further into the analysis, this, along with the many aggravating factors in this case require a parole ineligibility period at the higher end of the range as set out in the jurisprudence. On my review, I find that the appropriate period for delayed parole eligibility is at the upper double-digit range.
[58] Yet despite Mr. Dean’s able submissions, I am unable to accede to his ultimate position. Only one, dated case provided by the Crown had a term of 23 years of parole ineligibility with a very limited analysis rendered by the Court of Appeal on sentence: See R. v. Worth, 1995 CanLII 366 (ON CA), [1995] O.J. No. 1063, (C.A.).
[59] Several other cases were provided by the Crown, including R. v. Moore, 2017 ONCA 947, where a period of 22 years of parole ineligibility was imposed. The case is distinguishable as it is premised on the circumstances of the offender who committed dozens upon dozens of infractions in jail. There was psychiatric evidence that demonstrated the offender was an extremely dangerous individual at high risk to reoffend in a violent manner: at para. 60.
[60] In R. v. Weese, 2016 ONCA 449, the facts of that case included the appellant opening fire with a semi-automatic weapon outside a bar where six person were injured and an innocent bystander killed. The appellant had a lengthy record that including a previous shooting and the judge found that the appellant showed no possibility of rehabilitation. That cannot be said for the case at bar.
[61] Other cases provided by the Crown suggested parole ineligibility ranging from 15 to 22 years: See for example, R. v. Lane, 2008 ONCA 841, R. v. A.S. 2019 ONCA 900, R. v. Borbely, 2013 ONSC 3355, R. v. Fatima, [2004] O.J. No. 6278, (S.C.), and the case of R. v. Ohab, 2019 ONSC 2503, [2019] O.J. No. 2148 (S.C.).
[62] I am not prepared to elevate the parole ineligibility period to the very top of the scale, or for that matter, to the extent as suggested by the Crown, just shy of the maximum 25-year mark. Generally speaking, I am of the view that parole ineligibility for second degree murder exceeding 20 years is rare. I am not persuaded by the Crown’s cases that warrant exceeding this range. While Hall’s killing of Mason and his conduct is reprehensible and callous and the after the fact conduct is egregious, it cannot be said that there is no prospect of rehabilitation.
[63] Therefore, at this stage of the analysis, I find that adherence to a meaningful increase of parole ineligibility for second degree murder involving brutal violence is entirely appropriate in the circumstances of this case and of this particular offender. The need for denunciation of the unlawful conduct and specific deterrence are paramount.
[64] Thus, the substantial elevation of the parole ineligibility period to reflect the significant aggravating features of this offence and the particular circumstances of this offender is warranted.
[65] In the normal course, I would conclude my judgment and sentence Hall to life imprisonment with the period of parole ineligibility fixed at 20 years. However, that does not end the analysis as that period is subject to the Charter application.
Charter Application:
[66] The defence says that Hall’s lengthy periods of segregation constitutes cruel and unusual treatment and is a violation of his Charter protected interests.
[67] Section 7 of the Charter provides that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The Supreme Court held that the right of security of the person protects the physical and psychological integrity of an individual and protects against psychological suffering caused by the actions of the state: Carter v. Canada, 2015 SCC 5 at para. 64.
[68] Section 12 of the Charter states that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment”.
[69] Punishment violates s. 12 of the Charter where it is grossly disproportionate: R. v. Lloyd, 2016 SCC 13. There is a heavy onus on the applicant to establish the case. The treatment must be so excessive as to outrage standards of decency and be abhorrent or intolerable to society: R. v. Boudreault, 2018 SCC 58 at para. 45.
[70] Much of the time spent during the course of this sentence hearing was predicated on whether a reduction in the parole ineligibility could be provided for second degree murder under the various alleged Charter breaches. During the course of oral argument, the Crown conceded that the relief being sought was available based on the prevailing appellate jurisprudence. The only question was the amount of credit or reduction that could be granted to Hall. The defence submits that three to four years is the appropriate reduction. The Crown responds that the maximum period of time to be considered would be 22 months.
[71] It must be noted that while the defence advances this Charter application, Hall only seeks a reduction or credit only for time spent in administrative segregation exceeding 15 consecutive days under the “Mandela Rules”.[^1] Periods of time less than 15 days or any periods of segregation as a result of disciplinary action are not being sought by the defence to be considered in this application.
[72] Given the position of the parties, the issue of Hall’s eligibility for a Charter remedy is acknowledged and conceded by the Crown. It is not disputed that prolonged administrative segregation, defined as segregation in excess of 15 consecutive days and over 22 hours per day in solitary confinement has been ruled contrary to the Charter.
[73] Thus, I only reference the applicable jurisprudence for the sake of completeness. The leading cases include Canadian Civil Liberties Association v. Canada (Attorney General), 2019 ONCA 243, 144 O.R. (3d) 641, Brazeau v. Canada (Attorney General), 2020 ONCA 184, 149 O.R. (3d) 705, British Columbia Civil Liberties Association v. Canada (Attorney General), 2018 BCSC 62, [2018] B.C.J. No. 53.
[74] In Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, 2017 ONSC 7491, [2017] O.J. No. 6592, Marrocco A.C.J.S.C.J. discussed the “Mandela Rules”[^2] and went on to consider the statutory scheme for administrative segregation in light of the relevant Charter principles and the duty of procedural fairness.
[75] While there is little jurisprudence on point, the Crown concedes that a sentencing judge has jurisdiction to reduce an offender's period of parole ineligibility based on Charter infringing conduct as a s. 24(1) remedy. As Goldstein J. recently held in R. v. Marshall, 2020 ONSC 5360 at para. 71: "It cannot be that there is no remedy for a violation of a right, particularly a gross violation of a fundamental right. That is a 'basic tenant of our legal system'.”
[76] In R. v. Husbands, 2019 ONSC 6824, the trial judge found breaches of ss. 12 and 7 of the Charter for the lengthy period of administrative segregation at the Toronto Don Jail. Similarly, in Francis v. Ontario, 2021 ONCA 197, the Court of Appeal for Ontario held that “administrative segregation for more than 15 consecutive days violates ss. 7 and 12 of the Charter”: at para 34.
[77] In the case of R. v. Capay, 2019 ONSC 535, s. 24(1) was used to grant a stay of proceedings for a first-degree murder charge. The accused was detained in continuous segregation for four and a half years. The trial judge found that this profoundly affected the psychological integrity of the accused and breached his s. 7 rights. I agree with the defence that this case also illustrates the well-established principle that s. 24(1) has broad reaching jurisdiction over all aspects of criminal trials and that is capable of granting far weightier remedies than a reduction in parole ineligibility.
[78] Indeed, as a threshold matter, Hall has established a breach of his ss. 7 and 12 Charter rights in accordance with the burgeoning approach by trial judges in interpreting the prevailing appellate jurisprudence.[^3]
[79] Peter Reynolds testified in relation to the federal penitentiary records.
[80] In reference to exhibit five, the letter filed by Michael Vieira, (“Vieira”), Director of Security and Compliance, listed the dates of Halls’ incarceration at Hamilton Wentworth Detention Centre (“HWDC”) and other custodial facilities. On October 16, 2009 Hall was admitted to HWDC from Maplehurst Correctional Complex. From August 9, 2011 to February 16, 2012 he was transferred to Toronto West Detention Centre. On January 7, 2013, he returned to HWDC from Toronto Don Jail until March 14, 2013. On April 23, 2013, he returned to HWDC from Toronto Don Jail until July 22, 2013. Hall was transferred to Toronto East Detention Centre on July 22, 2013, en route to the Joyceville Federal Institution. On January 1, 2014, he was admitted to HWDC from Joyceville until May 21, 2014. On May 21, 2014, he was transferred to Millhaven penitentiary. It should be noted at this time that Hall spent some time at the Kingston penitentiary before it was permanently closed. On September 14, 2014, he transferred back to HWDC from Millhaven and returned again to Millhaven on September 15, 2014. On April 6, 2015, he was back to HWDC from Millhaven and returned to Millhaven on June 10, 2015. On June 27, 2016, Hall returned back to HWDC from Millhaven for one day. Hall has been incarcerated at HWDC from May 16, 2018 to the present day.
[81] According to Vieira, during his period of incarceration, Hall has always been in protective custody. Since 2009, Hall has spent 1,793 days in HWDC, 209 days of these were spent in segregation or conditions of confinement due to safety and protection of the institution for Hall, other clients and staff. Hall has also been in conditions of confinement for disciplinary purposes due to misconducts and refusals to relocate to a regular living unit. Of the 209 days in segregation, 51 days were for disciplinary purposes. Vieira provided evidence of the misconducts and adjudication decisions. A chart was also included in this exhibit.
[82] Vieira testified during this proceeding that the nature of Hall’s outstanding charges (one count of first-degree murder and two counts of counselling to commit murder) were relevant considerations when assessing risk within the facility. Vieira and HWDC staff became aware of Hall’s involvement with the death of another inmate in the Niagara Detention Centre. This incident became yet another factor to consider when conducting threat assessments with Hall moving forward. Vieira emphasized that the safety and security within the facility is reviewed daily. Vieira demonstrated an extensive knowledge of segregation policies and procedures pre and post the September 2017 reforms. In response to the well-known human rights concerns, he testified that there are a series of programs available to all inmates, regardless of whether one is in segregation. These include mental health programs, chaplain services, visits from social worker, and fresh airtime in the yard, amongst others. Normally, inmates are out of their cells for more than two hours. Vieira also provided evidence that Hall refused to relocate to a regular living unit and had to be accommodated.
[83] Vieira is a credible witness and he recounted his dealings with Hall personally and from his capacity as a supervisor. I accept his evidence that there was some basis for Hall to be separated from the general population of the institution for his own safety. I am also persuaded that Hall posed a great challenge to the institutional staff and was, at various times, a difficult inmate.
[84] However, notwithstanding the aforementioned, Hall has endured significant periods of administrative segregation exceeding 15 days and over 22 hours per day at various institutions, both provincial and federal. I reject the Crown’s suggestion that, at times, Hall deserved to be placed in administrative segregation as a last resort, due to his own behaviour of being ungovernable, or as the author of his own misconduct.
[85] Hall provided an affidavit and testified about his time in custody since 2009. Hall also provided some evidence about the psychological and mental health impact on him due to segregation. This evidence was principally left unchallenged in cross-examination. He recited the numerous periods of times that he was administratively segregated in the various institutions, some for months on end. Hall’s recollection of dates and situations appears to be well founded, and remained undisturbed in cross-examination. The extensive documentation, such as the administrative records which included segregation logs, that were filed purport to corroborate Hall's account of the time spent in administrative segregation. Indeed, Hall’s testimony in this vein is credible.
[86] For whatever non-disciplinary rationale being adopted at the relevant time, and any explanations provided, I find the prolonged periods of administrative segregation that Hall endured over the years to be unacceptable.
[87] As mentioned, the dispute before me is related to the exact number of days attributable to administrative segregation and what reduction to the sentence ought to be afforded. The evidence considered includes Vieira’s evidence as to the nature of the segregation, the logs filed by the defence and the characterization of administrative segregation and various other terms.
[88] While I have no reason to disbelieve Vieira, the documents provided by the defence appear to speak for themselves. Some of these documents completed by staff for the relevant period of time include the heading “Monthly Segregation Log”.
[89] In this vein, I have received Exhibit A from the defence which is a chart outlining “Charter Claimed Segregation”.[^4] Based on my review of the various dates included in Exhibit “A”, juxtaposed with the records filed by the defence and Hall's affidavit and testimony at the sentencing hearing, I am persuaded that this chart is markedly accurate in terms of the total number of days outlining segregation for administrative reasons. I accept the evidence provided by the defence and Mr. Sheppard’s analysis of the relevant dates of segregation.
[90] I agree with the defence that any damages that may flow from civil proceedings ought not disturb my review of the appropriate Charter remedy.
[91] The defence has substantiated their claim for the period of time beginning August 19, 2011 up to April 9, 2020. I find that Hall has spent 1,081 days in administrative segregation for periods exceeding 15 days at various institutions both federally and provincially. This period of time is equivalent to three years.
[92] At the same time, the defence also requests some additional reduction of parole ineligibility for the time post-April 2020, roughly at least six or seven months for the COVID-19 pandemic, where there were lockdowns due to the pandemic and various outbreaks at HWDC.
[93] In R. v. Duncan, 2016 ONCA 754, the Court of Appeal for Ontario recognized that particularly harsh presentence incarceration conditions can provide above and beyond the 1.5 credit in s. 719(3.1) of the Code: at para 6. It is common ground that many jurists have provided additional COVID or Duncan credit for accused persons housed at various institutions during the COVID pandemic. In other cases, I have heard evidence and taken judicial notice on the impact of the pandemic on inmates housed in custodial institutions. This includes, but is not limited to, double or triple bunking, loss of privileges, extended lockdowns in the cells, and other protocols. In some cases, there were documented health concerns related to COVID-19 and being housed in HWDC.
[94] Of course, this enhanced credit lies in conjunction with the offences that do not necessarily invoke life imprisonment for murder. The sentence of life imprisonment for murder is mandatory. Up to recently, there was no authority to reduce parole ineligibility based strictly on COVID-19 concerns, or Duncan credit for a murder conviction absent a viable Charter application. However, the limited jurisprudence has evolved.
[95] In essence, it still falls to the applicant to justify a Charter breach. Vieira testified that during the COVID pandemic, HWDC was declared an outbreak facility. As a result, inmates had to be medically isolated pursuant to corporate and public health care guidelines.
[96] Even during the pandemic, Vieira testified that Hall received certain privileges that were not available to other inmates, including his accommodation and access out of his cell as the range cleaner. He was also afforded access to the phone in the day room during the evenings when no one else was there.
[97] On a principled basis, not all forms of segregation over 15 consecutive days (with more than 22 hours per day in the cell) fall under the administrative segregation rubric as criticized by the appellate courts in the jurisprudence.
[98] There is a distinction to be made. I find that this latest phase of lockdowns due to the pandemic does not fall under administrative segregation principles or the “Mandela Rules” per se, premised on the factual matrix. According to Vieira and Hall's own evidence, Hall was housed in his own cell - a single cell - during the COVID-19 pandemic, and even prior to the pandemic. His period of lockdown or constraint was no different than all of the other inmates. I agree with the Crown that these lockdowns or constraints of liberty are not based on an arbitrary administrative segregation rationale, that has been the subject of Charter litigation, but rather on a unique pandemic situation that forced the institution to take extreme measures for all inmates, based on valid health concerns. It is not lost on me that these extraordinary steps were affected in order to protect staff and inmates during various outbreaks and to impede the spread of the virus. In any event, I am persuaded that Hall was, in fact, better off than most inmates who were similarly situated and have endured the COVID-19 pandemic at HWDC.
[99] Moreover, the mere fact of institution-wide constraints or lockdowns as a result of the pandemic per se, do not warrant a reduction of time where there is a minimum of a life sentence. In other words, I find that the lockdown period, due to the health emergency arising out of COVID-19 and the ubiquitous measures taken at HWDC, ought not to be framed as non-disciplinary segregation for the purposes of this application for Charter relief. The jeopardy that befell this offender along with all of the other inmates in the jail do not engage the relevant Charter principles or additional relief as described in the appellant jurisprudence. Indeed, no court could have foreseen these extraordinary circumstances that arose as a result of health mitigation strategies arising from the pandemic. In this context, I am not persuaded that any additional reduction in parole ineligibility ought to be afforded based on the evidence presented before me for the pandemic period post-April 9, 2020 to date.
[100] In summary, the Charter application is granted and the appropriate remedy in this case warrants a reduction of the parole ineligibility period.
Conclusion:
[101] The sentence to be imposed is as follows: Hall is to provide a sample of his DNA pursuant to s. 487.051 of the Code. I order a s. 109 lifetime weapons prohibition.
[102] In accordance with s. 743.21 of the Code, while incarcerated, Hall is prohibited from communicating, associating, or contacting directly or indirectly any member of Billy Mason’s immediate family as well as Shawna Guitar.
[103] Hall has been found guilty of second-degree murder and is sentenced to imprisonment for life. In arriving at a just and proper sentence for Hall, with the appropriate reductions for the ss. 7 and 12 Charter breaches, I hereby fix the minimum period of parole ineligibility at 17 years.
A. J. Goodman, J.
Released: September 17, 2021
COURT FILE NO.: CR10-7512
DATE: 2021-09-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
JEREMY HALL
REASONS FOR SENTENCE
A. J. Goodman J.
Released: September 17, 2021
[^1]: Rule 44.
[^2]: The United Nations Standard Minimum Rules for the Treatment of Prisoners.
[^3]: As I have found breaches of Hall’s Charter rights, I need not address. ss. 9 or 10(b).
[^4]: Exhibit “A” will form part of this decision.