



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bell, 2021 ONCA 315

DATE: 20210513

DOCKET: C68736

Hoy, Hourigan and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Raynard Bell

Appellant

Raynard Bell, acting in person

Richard Litkowksi, acting as duty
    counsel

Nicole Rivers, for the respondent

Heard: May 6, 2021, by
    videoconference

On appeal from the sentence imposed by
    Justice Douglas K. Gray of the Superior Court of Justice on May 25, 2020.

REASONS FOR DECISION

[1]

After a guilty plea, the appellant was convicted
    of one count of human trafficking.

[2]

The sentencing judge accepted the parties
    agreement that an appropriate base sentence would be five years. He applied a
    1.5 multiplier to the appellants pre-sentence custody of 610 days, which
    amounted to a credit of 30.5 months. The sentencing judge then went on to
    consider two collateral consequences of the sentence.

[3]

First, he reviewed the impact of the COVID-19
    pandemic on the appellant. The defence sought a credit of approximately 30
    days, which was based on a 0.5 day credit for each of the approximate 60 days
    of pre-sentence custody impacted by the pandemic. There was also reference in
    the submissions to the impact of COVID-19 going forward, but no specific
    submission that an additional credit should be granted to reflect the fact that
    the sentence would be served during the pandemic.

[4]

The sentencing judge noted that there was no
    evidence of an outbreak of COVID-19 in any of the institutions where the
    appellant had been housed. He also observed that that the effect of the COVID-19
    pandemic cannot result in an inappropriate sentence. The sentencing judge
    declined to give any credit for the impact of the pandemic.

[5]

Second, the sentencing judge considered the
    lockdowns in the institutions where the appellant was housed and the effect of
    two in custody assaults on him. In so doing, the sentencing judge adverted to
    the appellants affidavit regarding the personal impact of the lockdowns and
    assaults.

[6]

The sentencing judge rejected the Crowns submission
    that the credit pursuant to
R. v. Duncan
, 2016 ONCA 754 should be in
    the four to six-month range. He also declined to accede to the defence's
    position that the credit should reduce the sentence to time served. He
    ultimately found that the appropriate
Duncan
credit for the conditions
    experienced by the appellant was nine months. Consequently, he sentenced the
    appellant to 20.5 months and made a series of ancillary orders.

[7]

On appeal, the appellant submits that the
    sentence imposed was excessive. He argues that he should have been given credit
    for the impact of COVID -19 both during his pre-sentence custody and his time
    in custody after his sentencing.

[8]

We are not persuaded that we should interfere
    with the sentence imposed. The sentencing judge accepted the base sentence
    proposed by the parties and gave the appellant credit at the usual rate for his
    pre-sentence custody. On the issue of
Duncan
credits, the sentencing
    judge carefully considered the arguments advanced by the appellant and applied
    a credit of nine months. In our view, this was a reasonable exercise of his
    discretion and is owed deference by this court:
R. v. Ledinek
, 2018
    ONCA 1017, at para. 13.

[9]

With regard to COVID-19, leaving aside that
    there was no specific request for a credit based on the fact that the sentence
    would be served during the pandemic, implicit in the sentencing judges
    conclusion regarding the
Duncan
credit was that any additional credit
    beyond nine months would render the sentence unfit. That was a conclusion that
    was available to the sentencing judge, and we agree with his statement that any
    credit for the pandemic cannot render the sentence unfit.

[10]

In summary, we see no error in principle committed
    by the sentencing judge and the sentence is fit in the circumstances. Leave to
    appeal sentence is granted, but the sentence appeal is dismissed.

Alexandra Hoy J.A.

C.W. Hourigan J.A.

B. Zarnett J.A.


