



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Barrett, 2022 ONCA 143

DATE: 20220216

DOCKET: C69516

Miller, Trotter and Zarnett
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bismark Barrett

Appellant

Bismark Barrett, acting in person

Andrew Furgiuele, appearing as duty
    counsel

David Morlog, for the respondent

Heard: February 8, 2022 by
    video conference

On appeal from the sentence imposed on October
    29, 2020 by Justice Joseph A. De Filippis of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant pleaded guilty to possession of
    cocaine for the purpose of trafficking and was ultimately sentenced to incarceration
    for a period of 30 months.

[2]

After the sentencing judge prepared his initial
    reasons for sentence, he agreed to receive supplementary submissions from the
    defence. On the supplementary submissions, the defence revised its initial
    position and sought a conditional sentence. The basis for seeking a conditional
    sentence was (1) this courts judgment in
R. v. Sharma
, 2020 ONCA 48, (leave
    to appeal to the SCC granted 2021-01-14), which greatly expanded the courts
    ability to impose conditional sentences, and (2) worsening developments in the
    Covid-19 pandemic, which the defence argued weighed heavily in favour of a
    conditional sentence. The trial Crown argued that the risk of contracting
    Covid-19 while incarcerated was not any higher than the risk of infection the
    appellant faced by residing in Toronto, and in any event that a conditional
    sentence was not appropriate.

[3]

The sentencing judge received the submissions
    and issued his reasons for sentence. He provided his original reasons, prepared
    prior to hearing the supplementary submissions, with the supplementary reasons
    appended. The original reasons provided for a custodial sentence of 30 months. The
    supplementary reasons explained that he was not persuaded by the supplementary
    submissions to depart from the original sentence.

[4]

On appeal, Mr. Furgiuele (acting as duty
    counsel), advanced the argument that although the sentencing judge did not
    accept the trial Crowns questionable submissions on relative rates of risk, the
    sentencing judge nevertheless took an unduly narrow view of the impact of Covid
    on inmates. The sentencing judges focus, Mr. Furgiuele argued, ought not to
    have been restricted to the risk of infection faced by the appellant, and should
    have also included the negative impact of the measures that penal institutions
    were imposing to reduce the risk of Covid spread  particularly the widespread
    use of lockdowns and suspension of programs.

[5]

Despite Mr.
Furgiuele
s able submissions, we do
    not agree that the sentencing judge made any errors. The sentencing judge
    considered the submissions about the appellants risk from Covid-19 in the
    institutional setting and determined, that at that point in the pandemic, it
    did not justify a reduction in sentence below what he originally contemplated. It
    was within the discretion of the sentencing judge whether to reduce the
    appellants sentence to compensate for the deprivations that could be expected
    to result from the institutions response to Covid-19. He chose not to do so.
    This was a discretionary decision, and we are not persuaded that there is any
    basis to interfere with it.

DISPOSITION

[6]

The appeal is dismissed.

B.W.
    Miller J.A.

Gary
    Trotter J.A.

B.
    Zarnett J.A.


