



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Morgan, 2020 ONCA 279

DATE: May 4, 2020

DOCKET: C67536

MacPherson, Benotto and
    Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Morgan

Appellant

Brandon Morgan, acting in person

Matthew Gourlay, appearing as duty
    counsel

Michael Fawcett, for the respondent

Heard: April 27, 2020 by
    teleconference

On appeal from the conviction entered on
    May 15, 2019 by Justice Feroza Bhabha of the Ontario Court of Justice and from
    the sentence imposed on September 23, 2019.

REASONS FOR DECISION

[1]

Brandon Morgan originally appealed his
    conviction and sentence. However, at the hearing, he abandoned his conviction
    appeal and proceeded solely with the sentence appeal.

[2]

The appellant was sentenced to two years less a
    day comprised of 21 months on his conviction for aggravated assault and three
    months consecutive on a total of three counts of failing to comply with court
    orders. The appellant had attacked the victim with a sword in his mothers
    home. The victim was a friend of the appellants mother and had, in fact, acted
    as a surety for the appellant at an earlier point in time.

[3]

The appellant does not dispute that the sentence
    was a fit one at the time that it was imposed. Rather, the appellant submits
    that intervening events, namely the COVID-19 pandemic, have served to render
    the sentence unfit. He seeks a reduction in his sentence as a consequence of
    these events.

[4]

The appellant is currently incarcerated at the Central
    North Correctional Centre located in Penetanguishene, Ontario. In support of
    his position, the appellant refers to the fact that correctional facilities are
    not designed to contend with such a pandemic. It is not possible to maintain an
    appropriate physical distance from other inmates or from staff. The only method
    that the institution has to try and address physical distancing is to keep
    inmates confined to their individual cells. The appellant says that he spends
    all but three hours a day confined to his cell. Of that three hours, only 20
    minutes are provided for the inmate to actually be outside in the fresh air. Meals
    are served to inmates in their cells. The appellant also says that there are
    days when even the three hours are not provided because of staff shortages.

[5]

The appellant says that this confinement, coupled
    with the inherent increased risk of contracting the virus, if it enters the
    inmate population, detracts from the rehabilitative goals of his sentence. The
    appellant notes that the rehabilitative programs that would normally be
    provided to inmates are all canceled because of the pandemic and the need to
    keep inmates in their cells. The appellant says that it is clear that the
    sentencing judge imposed the sentence that she did in an effort to maximize the
    prospect for rehabilitation and now that prospect is being thwarted. The
    appellant says that, had the sentencing judge been aware that these events
    would happen, she would have imposed a lesser sentence to accommodate the
    rehabilitative goal.

[6]

As a result, the appellant seeks a reduction of
    his sentence by one-third such that he would be immediately eligible for parole.
    This would also advance his statutory release date to July and thus ensure his
    almost immediate release from incarceration. The appellant is currently
    eligible to be considered for parole on May 23. However, the appellant says
    that there is no guarantee that he will get parole because he has a criminal
    record and because he would have difficulty showing that he has acceptable
    living arrangements if paroled.

[7]

The respondent says that the appeal should be
    dismissed. The respondent says that the sentence was fit at the time. Indeed,
    the respondent says that the sentence was a lenient one. In any event, the
    respondent says that the sentence remains fit, even taking into account the
    impact of the COVID-19 pandemic. The respondent also says that this court
    should not consider the submission that there is an increased risk and impact
    on inmates in correctional facilities, arising from the COVID-19 pandemic,
    without direct evidence to establish that contention.

[8]

In our view, it is not necessary to decide
    whether this court could take judicial notice of the effects of the COVID-19
    pandemic to the extent to which the appellant would have us do that. We do,
    however, believe that it falls within the accepted bounds of judicial notice
    for us to take into account the fact of the COVID-19 pandemic, its impact on
    Canadians generally, and the current state of medical knowledge of the virus,
    including its mode of transmission and recommended methods to avoid its
    transmission.

[9]

In our view, the appellants submissions fall
    into the category of collateral consequences for sentencing purposes. As
    Moldaver J. noted in
R. v. Suter
, [2018] 2 S.C.R. 496, at para. 48:

The question is not whether collateral
    consequences diminish the offender's moral blameworthiness or render the
    offence itself less serious, but whether the effect of those consequences means
    that a particular sentence would have a more significant impact on the offender
    because of his or her circumstances.

[10]

However, Moldaver J. went on to make a further
    observation in
Suter
that has direct application to the case here. He
    said, at para. 56:

I agree with the Court of Appeal that the
    fundamental principle of proportionality must prevail in every case -
    collateral consequences cannot be used to reduce a sentence to a point where
    the sentence becomes disproportionate to the gravity of the offence or the
    moral blameworthiness of the offender.

[11]

In our view, the sentence imposed on the
    appellant was at the very low end of an acceptable range of sentence for the
    offence of aggravated assault. It was, indeed, a lenient sentence, given the
    injuries sustained by the victim and the fact that the appellant had a criminal
    record. To reduce the sentence any further would result in a sentence that is
    unfit, one that would be disproportionate to the gravity of the offence. As was
    observed by Wagner J. in
R. v. Pham
, [2013] 1 S.C.R. 739, at para. 18:

It follows that where a sentence is varied to
    avoid collateral consequences, the further the varied sentence is from the
    range of otherwise appropriate sentences, the less likely it is that it will
    remain proportionate to the gravity of the offence and the responsibility of
    the offender.

[12]

That result does not mean that there is no
    potential remedy for the appellant respecting the impacts arising from the
    COVID-19 pandemic. We expect that the Ontario Parole Board will take into
    account those impacts in deciding whether the appellant should be granted
    parole. If the Parole Board fails to do so, the appellant has other remedies
    available to him to redress that failure.

Conclusion

[13]

The conviction appeal is dismissed as abandoned.
    Leave to appeal sentence is granted but the appeal is dismissed.

J.C. MacPherson J.A.

M.L. Benotto J.A.

I.V.B. Nordheimer J.A.


