



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chumbley, 2020 ONCA 474

DATE: 20202107

DOCKET: C68277

MacPherson, Pardu and Trotter
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Peter Chumbley

Appellant

Mark Halfyard, for the appellant

Andrew Hotke, for the respondent

Heard and released orally:
    July 17, 2020 by video conference

On appeal from the sentence imposed on March
    9, 2020 by Justice Pamela Borghesan of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant asks this court to consider fresh evidence about the
    conditions she endured during presentence custody, and to reduce her sentence
    to reflect those hardships.

[2]

The appellant says she asked her counsel on the guilty plea to obtain
    the institutional records to show the extent of lockdowns and the other
    conditions of her detention. She says her lawyer told her that Legal Aid would
    not pay to get those records. Because of this refusal to get the records, the
    appellant terminated that counsels retainer and made submissions on her own
    behalf. She only mentioned the conditions under which she had been held, and
    asked for some credit because of that, after the sentencing judge delivered the
    decision on sentence.

[3]

The Crown and duty counsel have now cooperated to get those records. They
    reveal that the combination of mental illness, the institutional housing
    offered to transgender inmates who identify as female, and the appellants
    continuing trauma resulting from a childhood with a drug addicted Aboriginal father
    who introduced her to drugs at an early age, have created exceptional suffering
    for this appellant. She was in lockdown for approximately 33 days during
    presentence custody. She was confined to her cell for 22 hours a day. She tried
    to hang herself twice and was hospitalized as a result of the injuries she
    sustained in the suicide attempts. Rehabilitative programs were not available
    to her because of her transgender identity.

[4]

The sentencing judge sentenced her to eight months, after a seven-month
    credit for presentence custody. This credit was short 3 days, calculated on a
    1.5 to 1 ratio.

[5]

The appellants statutory release date is just one month away, on August
    18, 2020.

[6]

We admit the fresh evidence. This should have been before the sentencing
    judge and would have had an impact on the sentence imposed. This is different
    from evidence of rehabilitative progress or difficulties which could properly
    be considered by the parole authorities. The interests of justice require that
    we consider this evidence of intense human suffering. The appellant submitted
    to the sentencing judge,

Im falling apart right now. Since
    Ive identified as female Im in 22 hour lockup. Im segregated by myself. I
    dont get the programs that other inmates get. Um, before I got out last time I
    hung myself. Got tooken to the hospital for 8 days. Um, since being
    reincarcerated, Ive hung myself again. And got took to the hospital again. This
    is the scar from the noose. Um, I Im mentally falling apart right now

[7]

Given the impact on this offender,
    it is an appropriate case to give some credit against sentence to reflect the
    harsh conditions of presentence detention and the consequences for this
    appellant: see
R. v. Duncan
, 2016 ONCA 754. In light of the fast-approaching statutory
    release date, we allow the appeal, reduce the custodial portion of the sentence
    to time served and the probation order will remain in force on the terms
    ordered by the trial judge.

J.C.
    MacPherson J.A.

G.
    Pardu J.A.

Gary
    Trotter J.A.


