



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ledinek, 2018 ONCA 1017

DATE: 20181211

DOCKET: C65369

Hourigan, Pardu and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gaddiel Ledinek

Appellant

Eva Tache-Green, for the appellant

Caitlin Sharawy, for the respondent

Heard: December 5, 2018

On appeal from the sentence imposed by Justice Michael
    Penny of the Superior Court of Justice on February 23, 2018.

REASONS FOR DECISION

[1]

The appellant was sentenced to 45 months for
    possession of a loaded prohibited firearm, and 12 months consecutive for breach
    of the order prohibiting him from possession of a firearm, before credit for
    presentence custody. The appellant submits that the sentencing judge erred by
    disregarding the principles of totality and parity, engaged in double counting,
    ignored relevant mitigating factors and misapprehended important evidence. He
    submits that the sentence imposed was unfit and must be varied on appeal by
    reducing the sentence by six months.

[2]

We do not agree.

[3]

In May 2016, the appellant was in possession of
    a loaded, semi-automatic handgun in the backseat of a vehicle travelling north
    on highway 400. There were four other people in the car.

[4]

He had previous convictions for similar
    offences, and was subject to a prohibition order made in September 2012 barring
    him from possession of any firearm or ammunition. In September 2012 he was
    convicted of the following offences:

1.

Commission of an offence for a criminal
    organization

2.

Possession of a Schedule I substance for the
    purpose of trafficking

3.

Two counts of possession of a firearm

4.

Aggravated assault

5.

Robbery (3 charges)

6.

Possession of a firearm contrary to a
    prohibition order

7.

Failure to comply with an undertaking (3
    charges)

[5]

The appellant was 20 years old at the time of
    the offences that are the subject of this sentence appeal. He pleaded guilty in
    Superior Court on the eve of the trial.

[6]

The Crown took the position that an appropriate
    sentence would be four years for possession followed by one year consecutive
    for breach of the firearm prohibition. The defence submitted that three years
    for possession followed by six months for the breach of the prohibition order
    would be appropriate.

[7]

The appellant alleges that the trial judge erred
    by treating the breach of the prohibition order as an aggravating factor on the
    sentence for possession of the firearm and by imposing a consecutive sentence
    for the breach of the prohibition order. We do not agree. The appellants
    breach of the prohibition order was inescapably part of the narrative of events
    leading to the appellants convictions. The sentencing judge expressly
    cautioned himself that where consecutive sentences are imposed, the combined sentence
    should not be unduly long or harsh.

[8]

The global sentence imposed was well within the
    range of sentences imposed for similar offenders, guilty of similar offences.

[9]

The appellant also submits that the trial judge
    erred by failing to consider two certificates he had earned while in
    presentence custody. The first was for completing a ten-hour anti-criminal
    thinking workshop, and the second for a ten-hour cognitive skills workshop. The
    trial judge did not mention these in his sentencing decision and was not
    obliged to. No submissions were made about the significance of the certificates.
    The sentencing judge did consider the appellants prospects for rehabilitation,
    and was aware of the certificates. These would have not had any impact on the
    ultimate sentence imposed, given the limited information about them.

[10]

Finally the appellant submits that the trial
    judge erred by failing to give him enhanced credit to reflect the conditions of
    pretrial custody. The sentencing judge credited the appellant with 31 months
    and 20 days pretrial custody, amounting to 1.5 times the actual pretrial
    custody of 21 months and three days. The defence proposed a further three-month
    credit arguing that the conditions of presentence custody were unusually harsh.

[11]

The sentencing judge rejected this request at
    paras. 30-33 of his reasons,

The lockdown
    records from both Maplehurst and TEDC are not remotely comparable to the
    lockdown records before the court in cases relied on by the defence such as
R.
    v. Nsiah
, 2017 ONSC 769,
R. v. Holman
, 2017 ONCJ 727 and
R. v. Bedward
,
    2016 ONSC 939. Full lockdowns, where services are suspended, were relatively
    few during the period of Mr. Ledineks pre-sentence custody at both
    institutions. At TEDC, services are, in any event, provided during many lockdowns,
    albeit on a more restricted protocol.

Mr. Ledinek also
    complains of inadequate medical treatment during his pre-sentence custody. The
    records, however, do not seem to bear that out. There is no documentary
    evidence of serious delays in receiving care but there is evidence that, on
    several occasions, Mr. Ledinek declined to attend appointments that had been
    scheduled for him. Unlike the case of
R. v. Ohamu
, 2017 ONCJ 10, there is no evidence of a pre-existing, serious
    mental health issue. The health records indicate Mr. Ledineks issues are
    associated primarily with the fact of his incarceration.

While the triple
    bunking at TEDC is a concern, it is mitigated somewhat by evidence that Mr.
    Ledinek declined to move to a double bunk situation. While he no doubt had his
    reasons, the evidence is there was an option offered.

I am unable to conclude that Mr. Ledineks
    circumstances rise to the level of harshness required to warrant
additional
credit for pre-sentence custody.

[12]

In
R. v. Duncan
,
    2016 ONCA 754, at para. 6, this court held that particularly harsh presentence
    incarceration conditions can provide mitigation apart from and beyond the 1.5
    credit referred to in s. 719(3.1) and that sentencing courts should consider
    both the conditions of the presentence incarceration and the impact of those
    conditions on the accused.

[13]

A courts decision as to the credit, if any, to
    be granted to account for harsh presentence custodial conditions is a
    discretionary one to which deference is owed. Here the sentencing judge considered
    both the conditions and their impact on the appellant. We are not persuaded
    that there is any basis to intervene.

[14]

The sentence imposed was fit.

[15]

Accordingly, the appeal is dismissed.

C.W. Hourigan J.A.

G. Pardu J.A.

Harvison Young J.A.


