



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marong, 2020 ONCA 598

DATE: 20200922

DOCKET: C67406

Fairburn
    A.C.J.O., MacPherson and Coroza JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Malamin Marong

Appellant

Malamin Marong, acting in person

Amy Ohler, appearing as duty counsel

Scott Wheildon, for the respondent

Heard: September 9, 2020 by
    video conference

On appeal from the convictions entered by
    Justice Ramez Khawly of the Ontario Court of Justice, dated June 21, 2019, and
    from the sentence imposed on August 15, 2019.

REASONS FOR DECISION

[1]

At the conclusion of the oral hearing we
    dismissed the appellants appeal of his convictions for firearm offences but
    allowed his sentence appeal with reasons to follow. These are our reasons.

[2]

After a trial in the Ontario Court of Justice,
    the appellant was convicted of a number of offences related to his possession
    of a firearm and a single count of possession of cocaine.

[3]

The defence called one witness at trial, Adam Dacosta
    Silva. Dacosta Silva, a drug dealer, sold cocaine on several occasions to an
    undercover police officer. The police attempted to identify Dacosta Silvas
    supplier. On June 19, 2018, the appellant was observed by the police driving Dacosta
    Silva to a drug deal. Dacosta Silva got out of the car and completed the sale
    to the undercover police officer. The appellant drove away. Shortly after the
    sale, Dacosta Silva was arrested. The appellant was followed by the police and
    arrested in the car. The police searched the car and discovered a loaded
    firearm in the middle console of the car, drug paraphernalia and cocaine.

[4]

At trial, Dacosta Silva testified that the
    firearm was his and that he had left it in the car without the appellant's
    knowledge. The trial judge rejected this testimony. In doing so, the trial
    judge observed that it was highly implausible that Dacosta Silva would leave a
    gun in the car without the appellants knowledge and that Dacosta Silva was
    motivated to lie about the appellants possession of the gun because he did not
    want to be labeled as a rat by the criminal subculture. The trial judge also
    noted that the gun was found in the console and the appellant was the only
    occupant in the car when it was stopped by the police. He found that the
    appellant was in possession of the firearm and found him guilty of the firearm
    offences. He also found the appellant guilty of possession of cocaine.

[5]

The trial judge imposed a global sentence of 48
    months. He granted the appellant credit for pre-trial custody on a 1.5 to 1
    basis of 21 months, leaving 27 months left to serve on his sentence.

[6]

With the assistance of duty counsel, the
    appellant appeals his convictions for the firearm offences and his sentence.

The Conviction Appeal

[7]

The appellant argues that the trial judge erred
    in his credibility assessment of Dacosta Silva. The appellants primary
    argument is that the trial judge reasoned from stereotypes about how criminals
    behave to find that Dacosta Silva was motivated to lie in his testimony, and to
    ultimately reject Dacosta Silvas evidence. The appellant also claims that the
    trial judge misapprehended the entirety of the evidence, by failing to consider
    evidence that corroborated Dacosta Silvas version of events.

[8]

We do not accept the appellants arguments, nor
    do we see any basis to interfere with the trial judges credibility assessment
    of Dacosta Silva. Credibility assessments attract a very high degree of deference
    on appeal and in our view, it was open to the trial judge to find that Dacosta
    Silva was motivated to provide evidence favourable to the appellant. In any
    event, Dacosta Silvas motivation was only one of the reasons that the trial
    judge gave for rejecting his evidence about the gun. The trial judge also noted
    that Dacosta Silva skirted too much in his testimony and had no answer to a
    question about how he was going to retrieve the gun after leaving it in the
    car.

[9]

On the trial judges findings, the gun was in
    the middle console and the appellant was the only occupant of the car. We would
    not interfere with the trial judges conclusion that the only reasonable
    inference on the evidence was that the appellant was in possession of the firearm
    in the car.

The Sentence Appeal

[10]

The appellant argues that the judge erred in not
    granting him any credit for harsh presentence conditions of custody:
R. v.
    Duncan
, 2016 ONCA 754. In
Duncan
, this court held that in
    appropriate circumstances, an offender can be granted credit for particularly
    harsh presentence incarceration conditions apart from the credit set out in s. 719(3.1)
    of the
Criminal Code
, R.S.C. 1985, c. C-46. The appellant argues that
    the appropriate credit in this case for the lockdowns is about 75 days credit.

[11]

During the sentencing hearing, defence counsel
    submitted that the appellant was subjected to lockdown between 111 to 152 days
    while in presentence custody. Counsel submitted that the lockdowns meant that
    the appellant was prohibited from leaving his cell for fresh air and was
    required to eat his meals in areas that were also bathrooms. The appellant
    sought credit of three months to reflect the harshness of his presentence
    custody. The Crown did not dispute that the appellant was subjected to about
    111 days of lockdown, nor did it dispute the description of the conditions of
    those lockdowns. However, the Crown submitted that
Duncan
credit of only
    two months should be given.

[12]

In his reasons for sentence, the sentencing
    judge stated that Lockdown or no lockdown he chose to do the crime and he did
    not grant credit for the conditions of the lockdown.

[13]

In
Duncan
, at para. 6, this court held
    that in considering whether any enhanced credit should be given, a sentencing
    judge will consider both the conditions of the presentence incarceration and
    the impact of those conditions on the accused. Although the granting of credit
    for particularly harsh presentence conditions is discretionary, we agree with
    the appellant that the trial judge erred by not explaining why he refused to
    grant credit. There was no dispute by the parties during their sentencing
    submissions that the appellant had experienced harsh conditions in the form of
    lockdowns and that enhanced credit should be given. In the unusual circumstances
    of this case, and particularly bearing in mind the agreement of the parties at
    trial, we agree with the appellant that
Duncan
credit should have been
    given. We agree with the appellant that 75 days should be credited towards the
    sentence to reflect the harness of the appellants presentence custody.

Conclusion

[14]

The appeal from conviction is dismissed. Leave
    to appeal sentence is granted. We allow the sentence appeal to the extent of
    granting 75 days additional credit to the sentence currently being served. For
    clarity, the global sentence is one of 48 months less credit for 21 months
    pre-trial custody and 75 days for presentence custody conditions. Otherwise, we
    would not interfere with the sentence.

Fairburn
    A.C.J.O.

J.C.
    MacPherson J.A.

S.
    Coroza J.A.


