



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rajmoolie, 2020 ONCA 791

DATE: 20201214

DOCKET: C68207

Gillese, Lauwers and Benotto
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Allan Rajmoolie

Appellant

Allan Rajmoolie, acting in person

Janani Shanmuganathan, appearing as duty
    counsel

Sam Greene, for the respondent

Heard: November 3, 2020, by video conference

On appeal from the sentence imposed on March
    9, 2020 by Justice Jane E. Kelly of the Superior Court of Justice, sitting without
    a jury, with reasons reported at 2020 ONSC 1400.

Benotto J.A.:

[1]

The appellant seeks leave to appeal his
    sentence.

[2]

The appellant pleaded guilty to possessing a
    restricted firearm with readily accessible ammunition, and to possessing a
    firearm while prohibited from doing so and in breach of his recognizance.

[3]

He appeals his sentence on the basis that the
    sentencing judge declined to award a further credit for harsh conditions at the
    Toronto East Detention Centre in accordance with
R. v. Duncan
,
2016 ONCA 754.

The sentencing hearing

[4]

The Crown sought a global sentence of 4 to 4.5
    years in custody. Defence counsel for the appellant submitted that the
    appropriate sentence was 3.5 years.
The sentencing judge
    imposed the sentence of 4 years (48 months) together with ancillary orders. She
    granted the appellant credit of 1.5 days for every day spent in pre-sentence
    custody in accordance with
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R.
    575. The appellant was credited with 25 months, leaving 23 more months to be
    served.

[5]

The appellant addressed the court at sentencing.
    He said that he had two broken legs and could not take advantage of yard time
    because he could not use the stairs and there were not enough staff members to
    facilitate use of the elevator. For the same reason, he could not access the
    visitation area. He described the effect on him of depression and upset. He said
    that he contacted the Ombudsman by letter to raise these issues. No letter was
    produced at the hearing.

[6]

The Security Manager for the detention center
    testified. When he heard that a letter was to be sent to the Ombudsman, he
    visited the appellant on multiple occasions. The appellant did not complain to
    him. Nor did he mention lack of yard time.

[7]

The
    sentencing judge accepted the evidence of the Security Manager and rejected
    much of the basis for the appellants complaints:

I do not accept
    the evidence of Mr. Rajmoolie regarding increased hardship while incarcerated
    at the Toronto East Detention Centre. I accept the evidence of Sgt. Lawson:
    that when he was advised that Mr. Rajmoolie was having issues, he addressed
    them promptly and to the best of his ability. There is no evidence that any
    specific requests were raised by Mr. Rajmoolie that were not addressed. When
    medical treatment was offered, it was declined. When the offer to bring another
    pair of orthopaedic shoes was made, there was no response.

[8]

She concluded that the circumstances of the
    appellants incarceration did not meet the requirement of harshness required to
    warrant credit over and above the
Summers
credit. She refused to grant
    additional credit under the principles in
Duncan
to account for the
    harsh conditions the appellant experienced while he was incarcerated in the
    Toronto East Detention Centre.

Fresh evidence on appeal

[9]

The appellant
    seeks to admit fresh evidence of three forms sent to the Ombudsman regarding
    yard visits. In the forms, he
stated:

I have documented medical info. regarding my
    leg injuries that prevent me from being able to use the stairsthat is my only
    way, so stop asking and the last time I submitted a blue form, I was told that
    they will be taking me down the elevator moving forward. I asked the next day
    and again denied and denied.



I have submitted
    numerous written and verbal requests, spoken to unit staff on multiple
    occasions, all of which yielded no results. I spoke to a sergeant as well and a
    blue form was provided; 14 plus months there was no solution or acknowledgement
    of the issue as I persisted and suffered.



Continuously, for
    almost 15 months I submitted written and verbal requests, spoke to staff,
    sergeants, etc. I submitted a blue form already and now they are saying they
    will put me in segregation if I want fresh air because they will not take me by
    elevator.

ISSUES

[10]

The issues on appeal are:

1.

Should the fresh evidence be admitted?

2.

Did the
    sentencing judge err by refusing to grant a
Duncan
credit?

ANALYSIS

Should the
    fresh evidence be admitted?

[11]

In order to adduce fresh evidence on appeal, the
    appellant must meet the test set out in
Palmer v. The Queen
, [1980] 1
    S.C.R 759, at p. 775: the evidence should generally not be admitted if, by due
    diligence, it could have been adduced at trial; it must be relevant in the
    sense that it bears upon a decisive or potentially decisive issue in the trial;
    it must be credible in the sense that it is reasonably capable of belief; and, it
    must be such that, if believed, when taken with the other evidence adduced at
    trial, it could reasonably be expected to have affected the result.

[12]

I would not admit the fresh evidence for two
    reasons.

[13]

First, by due diligence it could have been
    adduced at trial. Second, when taken with the other evidence it could not be
    expected to have affected the result. The same evidence regarding the lack of
    yard access, failure to use the elevator and complaints to the prison staff
    were before the sentencing judge. So too were the effects on the appellant. The
    purpose of fresh evidence is not to confirm or amplify evidence already
    provided.

Did the
    sentencing judge err by refusing to grant a
Duncan
credit?

[14]

Duncan
does not
    mandate a second level of credit for pre-sentence custody. Rather, it confirms
    that there is no cap on the 1.5 days of credit that can be given for
    pre-sentence custody. A higher credit may be given for particularly harsh
    conditions. At para. 6:

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.

[15]

The decision to award credit for pre-sentence
    custody is discretionary. Unless the sentencing judge errs in principle, the
    decision is entitled to deference.

[16]

The sentencing judge was aware of the conditions
    of the pre-sentence incarceration and the impact on the accused. It was within
    her discretion to conclude that the 1.5 days of credit for each day was
    adequate.

CONCLUSION

[17]

I would grant leave to appeal the sentence but
    dismiss the application for fresh evidence and the sentence appeal.

M.L.
    Benotto J.A.

I
    agree E.E. Gillese J.A.


Lauwers
    J.A. (Dissenting):

[18]

The sentencing judge refused to give Mr.
    Rajmoolie additional credit on his sentence for the harsh conditions he
    suffered in his 16 months of pre-sentence incarceration at the Toronto East
    Detention Centre. He submits that she erred in failing to exercise her discretion
    to do so under
R. v. Duncan
, 2016 ONCA 754.

[19]

In
Duncan
,
at para. 6 the court held 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) of the
Criminal
    Code
. To attract enhanced credit on this ground, the court will consider
    both the conditions of the presentence incarceration and the impact of those
    conditions on the accused.

[20]

I agree with Mr. Rajmoolies submission and
    would grant him the additional 4 months
Duncan
credit he sought on
    appeal, for the following reasons.

A.

The Conditions of Pre-sentence Incarceration Mr.
    Rajmoolie experienced at the Toronto East Detention Centre

[21]

Access to natural light and open air in the yard
    every second day, as was customary in the Toronto East Detention Centre, offers
    prisoners a brief respite. Depriving a person of access to natural light and open
    air is inhumane to a marked degree. But that was, unaccountably, Mr.
    Rajmoolies fate for 16 months.

[22]

Mr. Rajmoolie could not, because of his impaired
    mobility, go down the stairs from his cell on the fifth floor to access the
    yard, nor could he climb the stairs to return to his cell. As a prisoner, he
    was not permitted to use the elevator alone and no one was prepared to assist
    him. He was left to moulder for all those months.

[23]

The mobility issue also posed problems for
    visits with Mr. Rajmoolies family and his counsel. His evidence, noted by the
    sentencing judge at para. 36, was that he has suffered from anxiety and
    depression, and has cut himself causing self-harm. No wonder.

The sentencing judges reasons

[24]

The sentencing judge noted, at para. 34:

The range upon which Mr. Rajmoolie was housed
    was given yard time (
i.e.
, access to the outdoors) approximately every
    other day. The records from the Toronto East Detention Centre suggest that yard
    time was offered to Mr. Rajmoolie's unit 208 times. Although offered, Mr.
    Rajmoolie says that he was not able to access the yard due to his physical
    disability which was not accommodated. He further suggests that his visits were
    cancelled for the same reason

[25]

The sentencing judge added details, at para. 35:

Due to a
    disability caused by two broken legs with metal hardware in them (that occurred
    prior to Mr. Rajmoolie's incarceration), he was not able to take advantage of
    the yard time. This was due to his inability to descend or ascend the stairs
    which was necessary to access the yard. He was told that there were not enough
    staff at the Toronto East Detention Centre to accommodate his transport to and
    from the yard via the elevator. He says that he complained to the staff but was
    ridiculed by staff and he was not accommodated. The Ombudsman was also
    contacted but nothing improved. Despite his repeated requests to access the
    yard, they were denied.

[26]

Although the sentencing judge was well aware of
    the oppressive conditions of Mr. Rajmoolies incarceration, she did not pay
    sufficient attention to them in considering the exercise of her discretion
    under
Duncan.

[27]

Instead the sentencing judge doubted Mr.
    Rajmoolies testimony. She accepted the evidence of Sergeant John Lawson, the
    Security Manager for the Toronto East Detention Centre, who said he had heard
    no complaints from Mr. Rajmoolie about lack of access to the yard. The
    sentencing judge stated, at para. 38:

I do not accept
    the evidence of Mr. Rajmoolie regarding increased hardship while incarcerated
    at the Toronto East Detention Centre. I accept the evidence of Sgt. Lawson:
    that when he was advised that Mr. Rajmoolie was having issues, he addressed
    them promptly and to the best of his ability. There is no evidence that any
    specific requests were raised by Mr. Rajmoolie that were not addressed. When
    medical treatment was offered, it was declined. When the offer to bring another
    pair of orthopaedic shoes was made, there was no response.

[28]

The sentencing judges response is
    understandable because defence counsel did not produce copies of Mr.
    Rajmoolies complaints to the Ombudsman when he cross-examined Sgt. Lawson. It
    is also clear that Sgt. Lawson was aware that Mr. Rajmoolie was considering a
    complaint to the Ombudsman because, according to his testimony, that is what
    prompted him to visit on what appears to be only a single occasion.

[29]

Quite apart from the fresh evidence discussed
    below, it would have been self-evident that a person in Mr. Rajmoolies
    physical condition could not access the yard without assistance. His complaint
    had some validity on its face. It is not clear why the sentencing judge
    required stronger evidence of Mr. Rajmoolies complaints when it was not
    seriously contested that he had not gone outside for nearly 16 months.

[30]

In any event, Mr. Rajmoolies fresh evidence on
    appeal helps to bridge the evidentiary gap that to which the sentencing judge
    referred.

B.

The Fresh Evidence

[31]

I lay out the fresh evidence and then explain
    why I would admit it under the test in in
R. v. Palmer
, [1980] 1
    S.C.R. 759.

(1)

The Details of the Fresh Evidence

[32]

Mr. Rajmoolie has put before this panel, in the
    form of fresh evidence, correspondence from the Ombudsman that largely
    corroborates the testimony the sentencing judge rejected. The Ombudsmans
    office acknowledged, without providing the contact dates, that Mr. Rajmoolie
    had contacted them by telephone four times and had sent three letters dated
    December 28, 2019, January 8, 2020 and February 27, 2020. The letters are
    standard blue forms provided by the Ombudsman to detention facilities for use
    by inmates labelled Inmate Complaint Form.

[33]

Copies of the inmate complaint forms completed
    by Mr. Rajmoolie were provided as fresh evidence. They were not individually
    dated, but in them he stated:

I have documented medical info. regarding my
    leg injuries that prevent me from being able to use the stairsthat is my only
    way, so stop asking and the last time I submitted a blue form, I was told that
    they will be taking me down the elevator moving forward. I asked the next day
    and again denied and denied.

[34]

He added:

I have submitted
    numerous written and verbal requests, and I have spoken to unit staff on
    multiple occasions, all of which yielded no results. I spoke to a sergeant as
    well and a blue form was provided; 14 plus months there was no solution or
    acknowledgement of the issue as I persisted and suffered.

[35]

In another form he noted:

Continuously, for
    almost 15 months I submitted written and verbal requests, spoke to staff,
    sergeants, etc. I submitted a blue form already and they are saying they will
    put me in segregation if I want fresh air because they will not take me by
    elevator.

[36]

Mr. Rajmoolie described the effects he suffered:
    It has depressed me immensely to the point of self harm, exponentially
    amplified previous mental health issues for not only myself but my family as
    well.

(2)

The Governing Principles Concerning Fresh
    Evidence

[37]

The four steps in the
Palmer
test to
    admit fresh evidence are well known. The evidence: 1) should generally not be
    admitted if by due diligence, it could have been adduced at trial; 2) must be
    relevant in the sense that it bears upon a decisive or potentially decisive
    issue in the trial; 3) must be credible in the sense that it is reasonably
    capable of belief; and 4) must be such that if believed, it could reasonably
    when taken with the other evidence adduced, be expected to have affected the
    result.

[38]

The Palmer test applies to sentence appeals:
R.
    v. Lévesque,
2000 SCC 47, [2000] 2 S.C.R. 47;
R. v. Angelillo
,
    2006 SCC 55, [2006] 2 S.C.R. 728;
R. v. Sipos
, 2014 SCC 47, [2014] 2
    S.C.R. 423; and
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089. I
    agree with Beard J.A. that
Palmer
should be applied in order to
    prevent a miscarriage of justice in sentence appeals, even though, clearly,
    sentence appeals do not raise issues of innocence at stake or the risk of a
    wrongful conviction:
R. v. Catcheway
, 2019 MBCA 75, at para. 42.

[39]

At the first step of
Palmer
the test,
    Mr. Rajmoolie must demonstrate that he showed due diligence in bringing the
    evidence before the sentencing judge. Unfortunately, neither he nor duty
    counsel explained why he did not provide copies of his letters to the Ombudsman
    to the sentencing judge.

[40]

However, the due diligence requirement is no
    barrier to the admission of the fresh evidence in this case. The Supreme Court
    has repeatedly stated that the due diligence requirement is not an essential
    requirement of the fresh evidence test, particularly in criminal cases and
    that this criterion must yield where its rigid application might lead to a miscarriage
    of justice:
R. v. G.D.B.,
2000 SCC 22, [2000] 1 S.C.R. 520, at para.
    19, citing
R. v. M.(P.S.)
(1992), 77 C.C.C. (3d) 402, [1992] O.J. No.
    2410 (Ont. C.A.)
per
Doherty J.A. The failure to meet the due
    diligence criterion should not override accomplishing a just result:
R.
    v. Warsing
, [1998] 3 S.C.R. 579, at para. 56, citing
R. v. C.(R.)
(1989), 47 C.C.C. (3d) (Ont. C.A.), at p. 87,
per
Carthy J.A. The
    Supreme Court confirmed this flexible approach in
R. v. Hay
, 2013 SCC
    61, [2013] 3 S.C.R. 694, at para. 64.

[41]

At the second
Palmer
step, the fresh
    evidence must be relevant and bear upon a decisive issue. Mr. Rajmoolies calls
    and letters to the Ombudsman show his repeated attempts to gain access to fresh
    air, which is at the heart of his claim for
Duncan
credits.

[42]

At the third step, the fresh evidence must be
    reasonably capable of belief. As I noted earlier, it was self-evident that a
    person in Mr. Rajmoolies physical condition could not access the yard without
    assistance. He expressed his needs persistently over an extended period of
    time. His four telephone calls and three letters to the Ombudsman are
    consistent with his testimony that he suffered hardship as a result of his
    unaccommodated injury. The letters could only have been intended to ameliorate
    the conditions of his incarceration because the Ombudsman is not empowered to
    take any action that would affect the length of Mr. Rajmoolies sentence.

[43]

The fourth
Palmer
step is also made out
    because the telephone calls and letters to the Ombudsman could reasonably have
    been expected to have changed the outcome of Mr. Rajmoolies request for
Duncan
credit at his sentencing. I say this for two reasons. First, the sentencing
    judge heard evidence that Mr. Rajmoolie had written letters to the Ombudsman,
    but she expressed doubt, noting that No letter was produced during this
    hearing: at para. 37. She did not believe Mr. Rajmoolie and the absence
    of the letters contributed to her disbelief. Their production would have
    bolstered his credibility.

[44]

Second, the letters qualify Sgt. Lawsons
    evidence. In order to write the letters, the evidence establishes that Mr.
    Rajmoolie would have been required to ask staff of the Toronto East Detention
    Centre for the Ombudsmans blue letter forms at least three times. Faced with
    the evidence of three letters to the Ombudsman, the sentencing judge might not
    have assigned the same weight to Sgt. Lawsons testimony:
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 120. She doubted Mr. Rajmoolies
    assertion that he had complained to the Ombudsman, but the fresh evidence
    demonstrates that he was telling the truth.

[45]

An additional factor in my thinking is the
    notoriety of problems originating in the Toronto East Detention Centre, which
    has been the object of sustained judicial criticism in recent years. The Centre
    experiences frequent lockdowns due to staffing shortages:
R. v. Steckley
,
    ONSC 3410, [2020] O.J. No. 2992, at para. 39;
R. v. Douale
, 2018 ONSC
    3658;
R. v. Deiaco
, 2017 ONSC 3174;
R. v. Inniss
, 2017 ONSC
    2779, [2017] I.J. No. 2420. During lockdowns, inmates experience limited access
    to telephones, showers, and other basic services. The fact that these lockdowns
    are often caused by staffing shortages and labour disruptions and not by
    legitimate safety concerns is deeply worrisome. I agree that: we should not
    simply normalize unacceptable conditions in a jail:
R. v. Jama
, 2018
    ONSC 1252,
per
Goldstein J.

[46]

This bears on the most pertinent problem in this
    appeal, which is the Toronto East Detention Centres chronic inability to
    provide prisoners with adequate access to fresh air in the yard. In
Steckley
,
    Mr. Steckley was offered 20 minutes of yard time on only 214 days out of a
    540-day incarceration, which Kelly J. noted was roughly 39.7 percent of his
    time there: at para. 39. In
Douale
, Mr. Douale was offered fresh air
    on only 31 percent of the 574 days he spent in pre-sentence custody: at para.
    47. In
R. v. Hudson
, 2019 ONCJ 608, Mr. Hudson did not go outside on
    300 out of 459 days: at para. 43.

[47]

In
R. v. Inniss
, Mr. Inniss was offered fresh air only 59 times in 218 days,
    prompting Forestell J. to invoke the United Nations Standard Minimum Rules for
    the Treatment of Prisoners, which provides that every prisoner should receive
    at least one hour daily of open-air exercise. She was withering in her
    assessment: It is shocking that detention centres in Toronto in 2017 are
    consistently failing to meet minimum standards established by the United
    Nations in the 1950s: at para. 38.

[48]

I agree.


[49]

I conclude that the inhumane conditions in which
    Mr. Rajmoolie mouldered for so many months in the Toronto East Detention Centre
    do warrant additional
Duncan
credit, to which I now turn.

C.

The
Duncan
credit

[50]

Duncan
was a
    brief oral judgment that was later transcribed into what would then have been
    called an endorsement.
[1]
To repeat for convenience, at para. 6 the court held 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) of the
Criminal Code
. To attract enhanced credit on this
    ground, the court will consider both the conditions of the presentence
    incarceration and the impact of those conditions on the accused. In
Duncan
,
    the adverse conditions related to lockdown conditions during the appellants
    pre-sentence incarceration were due to staffing issues in the institution.
    Despite holding out the prospect, the
Duncan
court declined to give
    additional credit because there was no evidence of any adverse effect on the
    appellant.

(1)

The Context for the
Duncan
Credit

[51]

The
Truth in Sentencing Act
, S.C. 2009,
    c. 29, capped the maximum sentencing credit at 1.5:1. Before that legislation
    came into force, sentencing judges had developed a practice of awarding 2:1
    (sometimes up to 4:1) credit for pre-sentence custody:
R. v. Wust
,
    2000 SCC 18, [2000] 1 S.C.R. 455 and
R. v. Rezaie
(1996), 112 C.C.C.
    (3d) 97 (Ont. C.A.). In
Rezaie
, Laskin J.A. explained:

in two respects,
    pre-trial custody is even more onerous than post-sentencing custody. First,
    other than for a sentence of life imprisonment, legislative provisions for
    parole eligibility and statutory release do not take into account time spent in
    custody before trial (or before sentencing). Second, local detention centres
    ordinarily do not provide educational, retraining or rehabilitation programs to
    an accused in custody waiting trial.

[52]

The Supreme Court considered the effect of the
Truth in Sentencing Act
in
R. v.

Summers
, 2014 SCC 26,
    [2014] 1 S.C.R. 575
.
Karakatsanis J. divided the basis for enhanced
    credit into two notional categories: the quantitative and the qualitative.
    The quantitative rests on the fact that without pre-sentence credit, an
    offender who does not get bail would serve a longer sentence for the same
    offence than one who gets bail. The qualitative element reflects the fact
    that detention centres do not provide any kind of rehabilitative programming
    making the experience of incarceration more difficult for people who are to be
    presumed innocent: at paras. 23-28.

[53]

The Supreme Court noted that because a sentence
    begins when it is imposed and the statutory rules for parole eligibility and
    early release do not take into account time spent in custody before sentencing,
    pre-sentencing detention almost always needs to be credited a rate higher than
    1:1 in order to ensure that it does not prejudice the offender. The practice
    of awarding 1.5:1 or 2:1 had generally solved this problem. The credit meant
    that an offender with pre-sentence detention would reach parole eligibility at
    the same point in his or her incarceration as an offender without pre-sentence
    detention: See
Summers
, at para. 26.

[54]

The
Truth in Sentencing Act
amended s.
    719(3) and added s. 719(3.1) to the
Criminal Code
in 2009.
These provisions now read (changes underlined):

(3) In determining the sentence to be imposed
    on a person convicted of an offence, a court may take into account any time
    spent in custody by the person as a result of the offence
but the court shall limit any credit for that time to a maximum
    of one day for each day spent in custody
.

(3.1)
Despite subsection (3), if the circumstances justify it, the
    maximum is one and one-half days for each day spent in custody
.

[55]

Under s. 719(3.1), the credit of 1:1 became the
    prescribed norm. The maximum credit, where 
the
    circumstances justify it,
was stipulated as
one and one-half days for each day spent in custody
. However, in
Summers
, at para. 34, Karakatsanis J. upheld
    Cronk J.A.s interpretation of s. 719(3.1): an offenders lost eligibility for
    early release and parole constituted one of the circumstances that would
    justify credit at 1.5:1. This created what Karakatsanis J. recognized was an exception
    that would apply in virtually every case: the exception became the rule. Put a
    different way: the maximum credit became the standard credit.

(2)

Proving Eligibility for the
Duncan
Credit

[56]

A sentencing judge may exceed the standard
Summers
credit under
Duncan
. In order to obtain the
Duncan
credit, the offender is required to establish 1) the conditions of
    incarceration that justify the credit and, 2) the impact of those conditions on
    the accused: at para. 6. Courts start with the 1:1.5 credit authorized under s.
    719(3.1) of the
Criminal Code
and
Summers
and then consider
    whether the case warrants additional time due to its extraordinary
    circumstances:
R. v. Roberts
, 2018 ONSC 4566, at para. 44.

[57]

Courts have generally adopted the flexible
    approach set out in
Summers
, at para. 80: when evaluating the
    qualitative rationale for granting enhanced credit, the onus is on the
    offender, but it will generally not be necessary to lead extensive evidence.

[58]

In some cases, sentencing judges refer to the
    offenders handwritten notes or personal journal entries as evidence of the
    conditions of incarceration:
R. v. Fermah
, 2019 ONSC 3597, at paras.
    38-41. There does not appear to be much concern in the case law that this
    evidence might be self-serving. It is generally recognized that detention
    centres do not accurately document lockdown days, and sentencing judges
    routinely accept the offenders informal tally over the Crowns:
Fermah
,
    at para. 41;
R. v. Ward-Jackson
, 2018 ONSC 178, at para. 50;
R. v.
    Bedward
,

2016 ONSC 939, at paras. 20-21. Sentencing judges will
    sometimes refer to comparator cases in order to resolve discrepancies between
    offender and Crown evidence:
Fermah
, at para. 40. However, in some
    cases sentencing judges have required more convincing proof of the conditions
    said to be harsh:
R. v. Andre Callaghan
, 2017 ONSC 1853, at para. 124.

[59]

Courts have also taken a flexible approach to
    the determination of the impact on the offender, relying on the offenders
    testimony or affidavit:
R. v. Sanchez,
2019 ONSC 5272, at para. 52;
Fermah
,
    at para. 42. Expert reports and medical diagnoses appear to be rare.

[60]

Courts routinely take judicial notice of the
    negative effects of close confinement and segregation, in some cases relying on
    reports of the Ontario Ombudsman, the United Nations, humanitarian
    organizations, or academic commentators in order to ground their findings:
R.
    v. Charley
, 2019 ONSC 6490;
R. v. Chan
, 2019 ONSC 1400, at paras.
    84-85;
R. v. Roberts
, 2018 ONSC 4566, at paras. 31-32;
R. v.
    Burton
, 2018 ONCJ 153, [2018] O.J. No. 1250, at para. 96;
CCLA v. The
    Queen
, 2017 ONSC 7491.

[61]

Despite the generous approach taken in most
    cases, some sentencing judges require more rigorous proof of the impact of the
    incarceration conditions on the accused before awarding
Duncan
credits:
    See, for example,
R. v. Singh
, 2018 ONSC 3850 at para. 112;
R. v.
    Weir
, 2018 ONSC 783, at para. 140;
R. v. Andre Callaghan
, 2017
    ONSC 1853, at para. 124;
R. v. Georgiev
, 2017 ONSC 1265, at para. 47.

[62]

I join with my colleague Miller J.A. in the view
    that it is time to develop the doctrine and to introduce some methodology.

(3)

Determining the
Duncan
Credit in Practice

[63]

In setting the
Duncan
credit, the
    consensus is that there is no mathematical formula that can be applied in
    these circumstances to conveniently calculate the appropriate credit for these
    types of harsh conditions of pre-sentence custody  rather the appropriate
    credit is left to the discretion of the sentencing court:
R. v. Tello
,
    2018 ONSC 2259, at para. 80; see also
R. v. Clarke,
2020 ONSC 3878, at
    para. 39;
R. v. Roberts
, 2018 ONSC 4566, at para. 45. Courts are
    reluctant to give an itemized account of the circumstances attracting
Duncan
credits (i.e. assigning credit to each material incident or factor), preferring
    to give a global
Duncan
credit that takes into account all of the
    relevant factors:
Fermah
, at para. 67.

[64]

The resulting credit is frequently expressed as
    an enhanced ratio (2:1 or even 3:1, despite the ostensible conflict this
    creates with s. 719(3.1)) or a block of credited time.
[2]
There is no
    functional or principled difference between the two approaches, which are
    effectively interchangeable. In
Fermah
, for example, Molloy J. wrote:
    the cumulative effect of all these conditions is such that Mr. Fermah should
    not be required to serve any more time and awarded a 3:1 credit in order to
    achieve that result: at para. 71.

[65]

On appeal, this court has consistently acknowledged
    that trial judges are entitled to adopt a broad brush methodology:
R. v.
    Kizir
, 2018 ONCA 781, [2018] O.J. No. 5127, and has shown deference to
    sentencing judges in their approach to
Duncan
credits. However, the
    sentencing judge who ignores or summarily dismisses
Duncan
concerns
    commits a reversible error, as in
R. v. Marong
, 2020 ONCA 598. In
R. v. Chumbley
, 2020 ONCA 474, this court intervened in order to give
Duncan
credit to a transgender inmate who was denied access to rehabilitative programming
    due to her transgender identity and confined to her cell for 22 hours a day. In
R. v. Fuentes
, 2003 CanLii 57438 (Ont. C.A.), this court had held,
    pre-
Duncan
, that the failure to provide a necessary surgery rendered
    the conditions of incarceration extremely harsh and reduced the sentence to
    time served.

(4)

The Doctrinal Basis for the
Duncan
Credit

[66]

The doctrinal basis for the additional
    sentencing credit permitted by the
Duncan
panel is not clear, as
    Miller J.A., concurring, pointed out in
R. v. Gregoire
, 2018 ONCA 880.
    And see
R. v. Gordey
, 2020 ABQB 425, and
R. v. Pangon
, 2020
    NUCJ 30, at paras. 69-72.

[67]

Miller J.A.s concern was rooted in the effect
    of the
Truth in Sentencing Act
in amending s. 719(3) and adding s.
    719(3.1), and the Supreme Courts interpretation of these amendments in
Summers.
    Duncan
did not address the key remaining question: given s. 719(3.1), on
    what basis could a sentencing judge surpass the legislated cap of
one and one-half days for each day spent in pre-sentence custody
?

[68]

There appear to be two possible sources of
    authority for the
Duncan
credit. The first is in the general
    jurisdiction of a sentencing judge. The second is under s. 24(1) of the
Canadian
    Charter of Rights and Freedoms
, deriving either from s. 7 which
    relates to life, liberty and security of the person, or from s. 12 which
    relates to cruel and unusual punishment. I address each in turn.

(i)

The general jurisdiction of a sentencing judge

[69]

The first answer may simply be that
    particularly harsh conditions justify mitigation. The word mitigate
    appears in
Duncan
. This would keep
Duncan
within the
    traditional vocabulary of sentencing, as noted by McKay J. in
R. v.
    Linseman
, 2019 ONCJ 304, at para. 47: Mitigation of sentence for those
    who have suffered particularly harsh presentence incarceration is not dependent
    upon a finding of a constitutional violation. But it is not clear how a
    mitigation credit would get around the legislated cap in s. 719(3.1),
    especially when that credit is expressed in terms of an enhanced ratio, such as
    3:1. Gates J. wrestled with this question in
Gordey
, at paras. 63-66,
    and concluded that prison conditions that do not rise to cruel and unusual
    punishment should simply be given credit as mitigating factors. However, he
    acknowledged that this does not satisfactorily address the cap set out in
    s.719(3.1).

[70]

The unavoidable implication of the
Truth in
    Sentencing Act
in amending s. 719(3) and adding s. 719(3.1), and the
    decision in
Summers
,

is that Parliament intended the
    legislation to remove from sentencing judges the discretionary jurisdiction to
    provide enhanced credit for pre-sentence incarceration conditions. This is the
    basis of the Supreme Courts decision in
Summers
.

(ii)

The implicit role of the
Charter

[71]

The other more plausible source of a sentencing
    judges discretion to surpass the legislated cap in a particular case is that
Duncan
tacitly implements a
Charter
remedy.

[72]

In
Summers
, the Supreme Court noted
    that individuals who have suffered particularly harsh treatment, such as
    assaults in detention, can often look to other remedies,
including
    under s. 24(1) of the
Charter

: at para. 73. The expression,
    particularly harsh, appears in
Duncan
even though
Summers
was not cited. When particular conditions are so harsh and dehumanizing as to
    limit a prisoners s. 7 (life, liberty and security of the person) or s. 12
    (cruel and unusual punishment)
Charter
rights, as in this case, a remedy
    under s. 24(1) of the
Charter
in the form of additional credit for
    pre-sentence custody seems especially apt. Such a remedy aligns well with the
    conviction that offenders should not have to suffer such conditions in local
    detention.

[73]

I therefore take the view that implicit in
Duncan
was an assertion that, where harsh and dehumanizing conditions warrant, a court
    could give additional credit for pre-sentence custody beyond the legislated cap
    of
one and one-half days for each day spent in custody
in the exercise of its authority under s. 24(1) of the
Charter
.
    I would do so in this case and would give Mr. Rajmoolie an additional four
    months credit.

Released: December 14, 2020


EEG

P. Lauwers J.A.





[1]

The
    decision is binding and jurisprudential despite its brevity, with the
    reservations noted by Juriansz J.A. in
R. v. Singh
, 2014 ONCA 293, 120 O.R. (3d) 76, at para. 12

and by Osborne A.C.J.O. in
R. v. Timminco Ltd.
(2001), 54 O.R. (3d) 21
, [2001] O.J. No.
    1443, at para. 36.



[2]
In
Fermah
, Molloy J. noted that a 3:1 ratio
    had been applied in these cases:
R. v.
    Smith
, [2003] O.J. No. 1782 (C.J.)
(a firearms
    case);

R. v. Permesar
, [
2003] O.J. No. 5420 (C.J.)
(a break and
    enter)
;
R. v. Lowe
,
[2003] O.J.
    No. 2980 (S.C.).


