



COURT OF APPEAL FOR ONTARIO

CITATION: R.
    v. Bristol, 2021 ONCA 599

DATE: 20210908

DOCKET: C64759

Pardu, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roger Bristol

Appellant

Andrew Menchynski, for the appellant

Manasvin Goswami, for the respondent

Heard: September 1, 2021 by
    videoconference

On appeal from the sentences imposed on September
    19, 2016 by Justice Marvin Zuker of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Mr. Bristol seeks leave to appeal the total sentence
    of ten years imposed on him following on his convictions on 32 counts of break
    and enter; 34 counts of failure to comply with probation, and two counts of
    attempted break and enter. For the following reasons, we grant leave to appeal
    and reduce the sentences to a total of seven years.

[2]

The appellant pleaded guilty to committing a
    series of break and enters at residential homes in the City of Toronto over a two-month
    period in 2015. The appellant would generally gain access to the homes through
    unlocked doors or open windows. He would find valuables such as electronics and
    jewellery which he would then take and flee. The appellant said that he engaged
    in these activities in order to pay back drug dealers to whom he was indebted.
    There was no violence used in any of these break and enters and on the odd
    occasion when the appellant found that someone was in the home, he fled
    immediately.

[3]

The appellant has an extensive criminal record
    reflecting similar offences dating back over 30 years. Prior to these offences,
    the longest sentence that the appellant had received was a period of
    incarceration of just over two years.

[4]

The appellant was 44 years old at the time of
    his sentencing. He has a serious addiction to drugs. The appellant also suffers
    from schizophrenia and has severely limited intellectual abilities.

[5]

In our view, the sentencing judge made a number
    of errors which impacted directly on the sentence that he imposed:
R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44, of which three
    are particularly serious. First, the sentencing judge referred, more than once,
    to the break and enters as home invasion robberies. They were not. In doing
    so, it is apparent that the sentencing judge placed the offences in a more
    serious category than they properly represented.

[6]

Second, the sentencing judge erred in his
    treatment of the appellants mental health challenges and whether they impacted
    on the moral blameworthiness of his actions. The sentencing judge not only had
    a pre-sentence report, he also had a forensic report authored by two
    psychiatrists that detailed the appellants mental health issues. These issues
    date back to when the appellant was 12 years old. The psychiatrists gave
    evidence that the appellant was in the retarded range of intellectual
    functioning. The appellants challenges were exacerbated by his use of drugs.

[7]

The sentencing judge failed to give proper
    weight to this evidence in evaluating the appellants moral blameworthiness.
    Indeed, at one point, the sentencing judge said that he was not sure that
    there is any diminished moral responsibility with respect to the appellants
    actions.

[8]

Third, the sentencing judge failed to give
    proper effect to the jump principle in deciding on the appropriate sentence.
    While the sentencing judge referred to the principle in his reasons, he never
    actually addressed it. As earlier noted, prior to these offences, the longest
    sentence that had been imposed on the appellant was a period of incarceration
    of slightly more than two years. That sentence was imposed in 2006. An increase
    from two years to ten years, even given the number of offences involved, was
    excessive.

[9]

Given these errors, it falls to this court to
    determine the appropriate sentence. In our view, a sentence of seven years, as
    suggested by the appellant, is an appropriate sentence given the factors we
    have mentioned and his guilty plea.

[10]

In deciding on that sentence, we have taken into
    account one other factor. At the sentencing, the appellants trial counsel (not
    counsel on the appeal) had sought an adjournment to obtain records from the
    Toronto South Detention Centre regarding the number of lockdowns that had occurred
    while the appellant was incarcerated. The sentencing judge refused the
    adjournment of the basis that the appellant had had months to obtain the
    records and had failed to do so. That refusal was within the discretion of the
    sentencing judge. However, we now have those records which show that the
    appellant was in lockdowns for 257 days of his pre-sentence incarceration.

[11]

We are entitled to look at these records since
    we are now charged with determining an appropriate sentence and, in doing so,
    we must consider whether a
Duncan
credit is appropriate.
[1]
While the respondent argues
    that the appellant did not lead any evidence of direct impact on him arising
    from the lockdowns, we are of the view that some impact is self-evident.
    Lockdowns involve lack of showers and loss of physical activity. They also mean
    that prisoners are restricted to their cells for long periods of time. Individual
    evidence is not required to establish those basic effects which go beyond the difficult
    and restrictive circumstances offenders often encounter during pretrial custody
    and which are accounted for by the
Summers
credit.
[2]

[12]

In deciding on seven years as the appropriate
    sentence we have included a
Duncan
credit for these periods of
    lockdown. As noted in
R. v. Marshall
, 2021 ONCA 344, at para. 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.

[13]

In the end result, we grant leave to appeal and
    reduce the global sentence from ten years to seven years.

G.
    Pardu J.A.
David M. Paciocco J.A.
I.V.B. Nordheimer J.A.





[1]

R. v. Duncan
, 2016 ONCA
    754.



[2]

R. v. Summers
, 2014 SCC
    26, [2014] 1 S.C.R. 575


