



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Duncan,
    2016 ONCA 754

DATE: 20161013

DOCKET: C61612

Doherty, Hourigan and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Duncan

Appellant

Erec Rolfe, for the appellant

Susan Ficek, for the respondent

Heard and released orally:  October 7, 2016

On appeal from the sentence imposed by Justice Lack of
    the Superior Court of Justice, sitting with a jury, on September 9, 2015.

ENDORSEMENT

[1]

The appellant was convicted of aggravated assault.  He and two other
    persons robbed a particularly vulnerable victim.  In the course of the robbery,
    one of the co-accused struck the victim in the face causing very serious and
    long-term injuries.  The trial judge found that the appellant planned and set
    up the robbery.  The jury convicted the appellant of aggravated assault on the
    basis of s. 21(2) of the
Criminal Code
.

[2]

The trial judge imposed a sentence of two years, less a day.  In doing
    so, she gave effect to a submission that the appellant should be sentenced to a
    reformatory term to allow him to access resources that could assist him with
    his addiction-related problems.

[3]

Taking into account presentence incarceration, the appellant received an
    effective sentence of five and one-half years.

[4]

Counsel for the appellant submits that the sentence is too long and that
    the trial judges reasons demonstrate two errors.

[5]

First, he submits that the trial judge failed to give the appellant any
    credit for the particularly harsh circumstances in which he served his
    presentence incarceration.  Counsel submits that not only did the trial judge
    not give the appellant any credit, but the trial judge in fact held that, as a
    matter of law, the appellant could not receive credit beyond the 1.5 days for
    each day credit referred to in s. 719(3.1) of the
Criminal Code
.

[6]

On our reading of the trial judges reasons, we agree with counsel.  The
    trial judge effectively held that any credit or consideration in relation to
    presentence incarceration was capped at the 1.5 limit.  We agree with counsel
    that in the appropriate circumstances, particularly harsh presentence
    incarceration conditions can provide mitigation apart from and beyond the 1.5
    credit referred to in s. 719(3.1).  In considering whether any enhanced credit
    should be given, the court will consider both the conditions of the presentence
    incarceration and the impact of those conditions on the accused.  In this case,
    there was evidence that the appellant served a considerable part of his
    presentence incarceration in lockdown conditions due to staffing issues in
    the correctional institution.  There was, however, no evidence of any adverse
    effect on the appellant flowing from the locked down conditions.  Indeed, some
    of the material filed on sentencing indicates that the appellant made positive
    rehabilitative steps during his presentence incarceration.

[7]

While the pattern of lockdowns endured by the appellant is worrisome,
    without further evidence as to the effect of those conditions, we cannot say
    that the appellant suffered particularly harsh treatment entitling him to additional
    mitigation beyond the 1.5 credit.  Consequently, although we agree that the
    trial judge misinterpreted the relevant provision, we would not reduce the
    sentence to reflect any added mitigation for the conditions of presentence
    incarceration.

[8]

The second ground of appeal is based on the sentence imposed on a co-accused. 
    The co-accused received an effective sentence of four years.  The appellant
    submits that his sentence should not have been any longer than the co-accuseds
    sentence.  He argues that the co-accused had a more serious criminal record and
    took a more active role in the aggravated assault.

[9]

The trial judge considered these arguments.  She also observed there
    were other differences between the appellant and the co-accused that supported
    a longer sentence for the appellant.  She noted in particular that the
    co-accused had pled guilty, a significant mitigating factor.

[10]

We see no error in the trial judges treatments and consideration of the
    arguments based on parity of sentencing.  We would not interfere with the
    sentence on that basis.

[11]

Counsel are agreed that there was an error made in the calculation of
    the 1.5 credit for presentence incarceration and that the appellant is entitled
    to an additional 23 days of credit.  We would, therefore, allow the appeal to
    the extent of reducing the sentence by 23 days, resulting in a sentence of two
    years, less 24 days.  Otherwise, we would not interfere with the sentence.

Doherty J.A.

C.W. Hourigan J.A.

L.B. Roberts J.A.


