



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Green, 2021 ONCA 932

DATE: 20211231

DOCKET: C68581

Tulloch, Hourigan and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adrian Green

Appellant

Adrian Green, acting in person

Richard Litkowski, appearing as duty
    counsel

Philippe Cowle, for the respondent

Heard: November 3, 2021 by
    video conference

On appeal from the sentence imposed on
    August 12, 2020 by Justice Myrna L. Lack of the Superior Court
    of Justice, sitting with a jury.

REASONS
    FOR DECISION

[1]

In February 2018, the appellant committed a
    series of offences for which he has been convicted, all of which are
    significantly more serious than his previous criminal record.

[2]

The underlying facts of these offences included
    the appellant driving at a high rate of speed through a residential area so
    dangerously that he knocked down a stop sign and crashed into a fence. He then
    fled the scene to escape the police. Once apprehended, the car was searched, and
    he was found to be in possession of an illegal loaded firearm with an oversized
    magazine capable of holding 12 rounds of ammunition, with 11 rounds of
    ammunition loaded. The appellant was also found to be in possession of large
    quantities of illicit drugs, which included cocaine, both in powder form as
    well as crack cocaine, and a mixture of heroin and fentanyl.

[3]

The appellant pleaded not guilty but was found
    guilty after an 18-day trial.

[4]

At sentencing, the Crown sought a global
    sentence of 10 to 12 years, less pre-sentence custody. The defence sought a
    sentence in the range of 7 to 8 years, less pre-sentence custody on an enhanced
    2 to 1 basis, as well as
Duncan
credit to factor in the harsh
    pre-trial custodial conditions, including a significant amount of time spent under
    lockdown.

[5]

The sentencing judge imposed a global sentence
    of 10 years, less pre-sentence custody of 918 days, on an enhanced rate of 1.5
    to 1, or the equivalent of 46 months for a net sentence of 6 years and 2 months
    of incarceration.

[6]

The sentence was broken down as follows: four
    years custody for the firearm-related offences; four years of custody for the drug
    offences, to be served consecutively with the firearm-related offences;
    followed by six months of custody for the driving offences, to be served
    consecutively; and one year of custody for each of the possession of firearm
    while prohibited charges, to be served consecutively to the other offences, but
    concurrent to each other.

[7]

The appellant, through the assistance of Mr.
    Litkowski acting as duty counsel, raises three grounds of appeal:

a.

The sentencing judge erred in principle by
    failing to apply the jump principle;

b.

The sentencing judge failed to apply the
Duncan
credit principle; and

c.

The sentencing judge erred in principle by
    failing to consider the appellants personal circumstances, and more
    specifically did not address the systemic issues which may have impacted his
    moral blameworthiness, pursuant to this courts recent decision in
R. v.
    Morris
, 2021 ONCA 680.

Did The Sentencing Judge Err in Principle by
    Failing to Apply the Jump Principle?

[8]

At the outset of the imposition of sentence, the
    sentencing judge noted that the defence had raised the jump principle in
    support of their position on sentencing, and she quoted from the case of
R.
    v. Borde
(2003), 63 O.R. (3d) 417, at para. 39:

This principle cautions a court against
    imposing a dramatically more severe sentence than the sentences imposed upon
    the offender for similar offences in the recent the past. It has little
    application where the severity of the offenders crimes shows a dramatic
    increase in violence and seriousness.

[9]

She also cited this courts decision in
R.
    v. Courtney
, 2012 ONCA 478, in which the court found that where an
    offenders crimes were fundamentally different in kind and seriousness than the
    crimes for which they were previously sentenced, the jump principle is not
    engaged. Accordingly, in the appellants case, because the offences for which
    he was being sentenced were significantly more serious than his previous
    offences, the jump principle was not engaged.

[10]

We agree with the sentencing judges assessment.

[11]

The jump principle stands for the proposition
    that a subsequent sentence imposed on an offender should not be disproportionate
    to sentences imposed for prior offences, provided the subsequent offence is not
    significantly more serious than the prior offence. Essentially, a subsequent sentence
    for an offence should have an incremental increase proportionate to the
    frequency of the repeated offence:
R. v. White
, 2007 NLCA 44, 270 Nfld
    & P.E.I.R. 351. The application of this principle is contextual to the
    level of seriousness of the subsequent offences.

[12]

As noted by Rosenberg J.A. in
Borde
, at
    para. 39, the jump principle has little application where the severity of the
    offenders crimes shows a dramatic increase in violence and seriousness. The
    same is true when dealing with multiple convictions for an offender with a
    lengthy criminal record, or where previous sanctions have been ineffective in
    deterring the offender.

[13]

This is the case with the appellant. He has a
    significantly long criminal record, and the subject offences are significantly
    more serious than his prior offences. In addition, from his antecedents, it is
    obvious that previous lenient sentences have not affected his conduct or served
    to deter his subsequent behaviour. We also agree with the Crowns submissions
    that, taken together, the current offences for which the appellant was
    sentenced and that are the subject of this appeal eclipse the appellants prior
    criminal record as observed in
Courtney
, where the court stated, at
    para. 10:

The appellants crimes are fundamentally
    different in kind and seriousness than the crimes for which he was previously
    sentenced. Accordingly, the rationale for the jump principle  that successive
    sentences should be increased gradually  is simply not engaged.

[14]

For all these reasons, we would not give effect
    to the appellants arguments on this ground of appeal.

Did the Sentencing judge Err in Failing to
    Apply the
Duncan
Credit Principle?

[15]

The second argument raised by the appellant is
    that the sentencing judge erred in principle by failing to give effect to the
Duncan
credit principle. The appellant submits that his time in custody was
    exacerbated by the impact of COVID-19 lockdowns and the resulting inability to
    communicate with his family and receive family support. This resulted in the
    appellant suffering from post traumatic stress disorder and depression. In
    addition, according to the appellant, he was unable to secure medical
    treatment. He further submits that the sentencing judge was obliged to take
    these factors into consideration, and to give him additional enhanced credit.

[16]

While we agree that the sentencing judge was
    obliged to consider the harshness of the appellants pre-sentence custodial
    conditions, she was also obliged to weigh the evidence she heard on the issue
    and determine what weight, if any, she should place on such evidence. In our
    view, she did exactly that and decided not to place much weight on the
    appellants evidence on his pre-sentence custody.

[17]

Duncan
credit
    is a mitigating factor that a sentencing judge can consider in arriving at an
    appropriate sentence. As this court recently stated in the case of
R. v. Marshall
,
    2021 ONCA 344, at paras. 52-53:

[52]  The 
Duncan
 credit is not a
    deduction from the otherwise appropriate sentence, but is one of the factors to
    be taken into account in determining the appropriate sentence. Particularly
    punitive pretrial incarceration conditions can be a mitigating factor to be
    taken into account with the other mitigating and aggravating factors in
    arriving at the appropriate sentence from which the 
Summers
 credit
    will be deducted. Because the 
Duncan
 credit is one of the mitigating
    factors to be taken into account, it cannot justify the imposition of a
    sentence which is inappropriate, having regard to all of the relevant
    mitigating or aggravating factors.

[53]  Often times, a specific number of days
    or months are given as 
Duncan
 credit. While this quantification is
    not necessarily inappropriate, it may skew the calculation of the ultimate
    sentence. By quantifying the 
Duncan
 credit, only one of presumably
    several relevant factors, there is a risk the 
Duncan
 credit will be
    improperly treated as a deduction from the appropriate sentence in the same way
    as the 
Summers
 credit. If treated in that way, the 
Duncan

    credit can take on an unwarranted significance in fixing the ultimate sentence
    imposed. Arguably, that is what happened in this case, where on the sentencing
    judges calculations, the 
Duncan
 credit devoured three-quarters of
    what the sentencing judge had deemed to be the appropriate sentence but for
    pretrial custody. [Citation omitted.]

[18]

The sentencing judge considered all the relevant
    factors on sentencing, including the mitigating and aggravating factors. She
    specifically noted that the appellant filed an affidavit and gave
viva voce
evidence at his sentencing hearing on the harshness of the pre-sentence
    incarceration and its impact on him. She also reviewed his extensive medical
    record and noted contradictions in his evidence. In particular, the appellant
    gave evidence about the extent and impact of the lockdowns on him, and his
    evidence was rejected. It was open to the sentencing judge to reject his
    evidence, and having rejected his evidence it was also open to the sentencing
    judge to determine whether she would treat the lockdown period of the
    pre-sentence custody as a mitigating factor.

[19]

In the end, she was not satisfied that the
    appellants pre-sentence incarceration, including his time spent in lockdown,
    warranted being treated as mitigating on his sentence, and therefore did not justify
    a further enhanced pre-sentence credit beyond the 1.5 to 1 basis. Her exercise
    of discretion is entitled to deference. We see no basis to interfere.

Did the Sentencing Judge Err by Failing to
    Consider the Appellants Personal Circumstances?

[20]

Finally, the appellant argues that the sentencing
    judge failed to consider the personal circumstances of the appellant, and more
    specifically the principles outlined in this courts recent guidance in
Morris
.
    We do not agree.

[21]

A complete reading of the sentencing decision
    reveals that the sentencing judge took into consideration the personal
    circumstances of the appellant, both as outlined in his pre-sentence report, as
    well as his
viva voce
evidence given at the sentencing hearing. The sentencing
    judge specifically recited a significant amount of the appellants personal
    history and circumstances under the heading, Pre-Sentence Report. It is true
    that she did not specifically reference his racial background and/or the impact
    of either systemic or specific racial discrimination, and how this might factor
    into his moral blameworthiness; however, this issue was never raised at his
    sentencing hearing, nor was any evidence adduced on the issue. Furthermore, the
    sentencing judge did not have the benefit of the
Morris
decision at
    the time of sentencing. We would not give effect to this ground of appeal.

Disposition

[22]

We are satisfied that the ultimate global
    sentence imposed in this case was appropriate in the circumstances, considering
    the seriousness of the offences, and the appellants antecedents. The sentence imposed
    was a fit one, and we see no error in principle that warrants appellate
    intervention.

[23]

Accordingly, leave to appeal sentence is
    granted, but the sentence appeal is dismissed.

M.
    Tulloch J.A.

C.W.
    Hourigan J.A.

Harvison
    Young J.A.


