



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Dodman, 2021 ONCA 543

DATE:
    20210728

DOCKET:
    C67208

Hourigan,
    Paciocco and Zarnett JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Jeffrey
    Dodman

Appellant

Janani Shanmuganathan for the appellant

Michael Perlin for the respondent

Heard: June 25, 2021 by
    videoconference

On appeal from the
    sentence imposed by Justice Mara B. Greene of the Ontario Court of Justice on
    July 26, 2019.

REASONS FOR DECISION

A.

background

[1]

The appellant seeks leave to appeal his sentence
    on one count of robbery and one count of use of an imitation firearm in the
    commission of an indictable offence. For the reasons that follow, we would
    dismiss the appeal.

[2]

The circumstances of the offences are as
    follows. On August 28, 2012, the appellant entered the victim's convenience
    store wearing a distinctive white-coloured, full-face Halloween mask. The
    appellant pointed a black-coloured, semi-automatic type weapon at the victim,
    repeatedly jabbed him with it, and demanded money. The victim turned over
    approximately $150. The appellant pocketed the cash and fled out the front
    door.

[3]

The victim followed the appellant out of the
    store and observed the general direction in which he was headed. Witnesses
    provided information to the police, who subsequently found and arrested the
    appellant. The officers located a bag containing a black-coloured pellet gun, a
    white-coloured, full-face Halloween mask, and $145. The appellant identified
    himself as the person who committed the robbery. He was charged with robbery
    with a firearm and disguise with intent.

[4]

The circumstances of the appellant changed
    drastically between the time of the offences and the time of his sentencing. At
    the time of the robbery, the appellant was addicted to alcohol and drugs. Just
    weeks before, he had unsuccessfully attempted to obtain help for his addiction
    by entering a treatment program. The night of the robbery, he was on a drug and
    alcohol binge, having consumed approximately 30 beers. He had run out of money
    and robbed the victims convenience store so that he could continue his binge.
    By the time of his sentencing, some seven years later, the appellant had
    completed his university degree, had been sober since his arrest, was employed,
    and was in a supportive relationship.

[5]

The Crown and the defence agreed to reduce the
    charges to robbery with the use of an imitation firearm, and the appellant
    entered guilty pleas. The parties also agreed to a joint submission of 18
    months custody. However, they differed on the amount of credit to be awarded
    pursuant to
R. v. Downes
(2006), 79 O.R. (3d) 321 (Ont. C.A.).
    Ultimately, the sentencing judge reduced the agreed upon sentence by six
    months. Given this sentence, she declined to consider the appellants argument
    that the one-year mandatory minimum sentence for using an imitation firearm in
    the commission of an indictable offence, as found in s. 85(3)(a) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, violates s. 12 of the
Canadian Charter of
    Rights and Freedoms
.

B.

issues

[6]

In oral argument, counsel for the appellant
    makes several submissions. First, she renews the s. 12
Charter
argument. Second, she says that we should impose a conditional sentence as a
    consequence of this courts decision in
R. v. Sharma
, 2020 ONCA 478,
    152 O.R. (3d) 209, leave to appeal granted, [2020] S.C.C.A. No. 311. She
    contends that, based on the appellants current circumstances, no purpose would
    be served by incarcerating him for 12 months. Alternatively, she argues that we
    should wait until September 2021 to rule on this case because there is
    currently a bill before Parliament that would impact the availability of a
    conditional sentence and eliminate the mandatory minimum sentence found in s.
    85 of the
Criminal Code
. Finally, in her factum, she submits that the
    sentencing judge erred in her consideration of the
Downes
credits.

[7]

As will be explained below, we are not persuaded
    to interfere with the sentence or to otherwise give effect to any of the
    arguments advanced by the appellant. In considering his submissions, we would
    formulate the issues as follows:

1)

Was the sentence imposed fit;

2)

Is a conditional sentence appropriate in the
    circumstances;

3)

Should this court interfere with the sentence
    imposed based on post-sentencing events;

4)

Should this court delay its disposition of the
    appellants case to see whether Parliament amends the
Criminal Code
;
    and

5)

Should this court consider the constitutionality
    of s. 85 of the
Criminal Code
?

C.

analysis

(1)

Was the sentence imposed fit?

[8]

As noted, the parties agreed on a joint
    submission that 18 months in custody was an appropriate sentence. However,
    before the sentencing judge, their positions were quite far apart because of
    their different views on the issue of
Downes
credits. The Crown
    submitted that the agreed upon sentence should not be reduced. The defence
    initially urged the court to grant a six-month
Downes
credit, but
    after raising the constitutional issue, sought a 90-day intermittent sentence.
    The issue of Downes credits was therefore critical in fashioning a fit sentence
    for the appellant.

[9]

The law regarding
Downes
credits was
    recently summarized in
R. v. Joseph
, 2020 ONCA 733, 153 O.R. (3d) 145,
    at para. 108, as follows:

[108] The propriety of treating
    "stringent bail conditions, especially house arrest", as a sentencing
    consideration was affirmed in
R. v. Downes
(2006), 205 C.C.C. (3d) 488
    (Ont. C.A.), at para. 33. Although it is not uncommon to speak of providing
    credit for stringent bail conditions, pre-trial bail is conceptually a
    mitigating factor in assessing a fit sentence:
R. v. Panday
(2006),
    205 C.C.C. (3d) 488 (Ont. C.A.). Mitigation is given because stringent bail
    conditions can be punitive and therefore akin to custody:
Downes
, at
    para. 29. The criteria to be considered in assessing the weight of the
    mitigation to be given therefore include the amount of time spent on bail
    conditions; the stringency of those conditions; their impact on the offenders
    liberty; and the ability of the offender to carry on normal relationships,
    employment and activity:
R. v. Place
, 2020 ONCA 546, at para. 20. The
    mitigating effect that such considerations have on the sentence to be imposed
    falls within the discretion of the trial judge:
Downes
, at para. 37.

[10]

Two points are worth emphasizing. First, the
    granting of
Downes
credits is not done through the use of a
    mathematical formula. It is the responsibility of the sentencing judge to
    review all of the relevant factors and determine what credit, if any, should be
    applied. This is a highly discretionary exercise, and judges can reasonably
    differ on what is the appropriate sentence in the circumstances of a given
    case. Second, appellate courts will not generally interfere with the exercise
    of that discretion absent undue emphasis on the bail conditions as a mitigating
    factor (see
Joseph
, at paras. 108, 112) or the lack of an evidentiary
    foundation to support the sentencing judges findings (see
R. v. Adamson
,
    2018 ONCA 678, 364 C.C.C. (3d) 41, at paras. 115-117). A sentencing judge's
    reasonable exercise of discretion is owed deference by this court:
R. v.
    Ledinek
, 2018 ONCA 1017, at para. 13;
R. v. Bell
, 2021 ONCA 315,
    at para. 8.

[11]

The appellant submits that the sentencing judge
    erred by finding that if delay in sentencing accrues at the defence's request,
    then less
Downes
credit should be awarded for the time spent on bail.
    That is not an accurate summary of the sentencing judges reasoning. On the
    contrary, she undertook a detailed analysis of the appellants time on bail and
    properly focussed on whether the conditions of bail, which changed over time,
    were so punitive that they were akin to punishment.

[12]

The sentencing judge broke down the appellants
    time on bail into three periods. Regarding the first 22 months of bail, when
    the appellant was under house arrest, the sentencing judge reasonably concluded
    that his house arrest bail had little impact on him during the seven months he
    stayed in a residential treatment facility. For the remaining 15 months of
    house arrest, the sentencing judge granted a five-month credit. She found that
    the house arrest did not prevent the appellant from socializing and taking
    steps to rebuild his life. In reaching her conclusion, the sentencing judge relied
    on a letter from the appellant wherein he reported that during this period, he
    was able to entertain at his home, make amends with friends and family, and
    maintain a relationship with his girlfriend. This was a reasonable exercise of
    the sentencing judges discretion, and there is no basis to interfere with her
    findings.

[13]

Concerning the second period, which covered the
    38 months from the time a curfew replaced the appellant's house arrest in July
    2014 to the time of his guilty plea in September 2017, the sentencing judge
    awarded one month of
Downes
credit. She reasoned that the appellant
    was able to go out every day, attend school, and visit his friends. The
    sentencing judge acknowledged that the curfew impacted the appellant's life as
    he could not socialize outside of his home after 11 p.m. Recognizing that
    limited impact, the sentencing judge granted one month of additional
Downes
credit. Again, this was a reasonable exercise of her discretion based on her
    detailed review of the circumstances. We decline to interfere with the credit
    awarded for this period.

[14]

The third period was the time between the
    appellants guilty plea and the imposition of his sentence. In this period, the
    appellant twice sought adjournments of his sentencing hearing to give him enough
    time to finish his university degree. The sentencing judge awarded no
Downes
credit for this period. We agree with that conclusion. It is difficult to see
    any actual hardship to the appellant during this time. In fact, the appellant
    chose to delay his incarceration so that he could finish his degree.

[15]

In summary, we see no error in the sentencing
    judges awarding of the
Downes
credits. Further, in our view, a
    sentence less than the one imposed would not be proportionate to the gravity of
    the appellants actions and his moral blameworthiness. The jurisprudence of
    this court makes clear that robberies of convenience stores will attract
    substantial sentences and that general deterrence and denunciation play an
    essential role in fashioning a fit sentence:
R. v. Clarke
, 2014 ONCA
    296, at para. 18;
R. v. Superales
, 2019 ONCA 792, at para. 1; and
R.
    v. Lewis
, 2009 ONCA 792, at para. 3. We conclude, therefore, that the
    12-month custodial sentence imposed was fit.

(2)

Is a conditional sentence appropriate in the
    circumstances?

[16]

The appellant submits that if the mandatory
    minimum for the use of an imitation firearm is unconstitutional, then
    consistent with this courts decision in R. v. Kebede, 2021 ONCA 283, we should
    impose a conditional sentence.

[17]

In
Kebede
, the appellant was convicted
    of possession of cocaine for the purpose of trafficking and received a
    custodial sentence of nine months. On appeal, the court noted that due to the
    recent decision in
Sharma
, the provision of the
Criminal Code
that removed conditional sentences as an option in such cases had been stuck
    down. The court was satisfied that given the change in the sentencing
    landscape, a conditional sentence was appropriate. The court reached this
    conclusion for three reasons: (1) the trial judges decision strongly suggested
    that he would have imposed a conditional sentence had it been an available
    option; (2) while on bail, the appellant had continued to stay out of trouble
    and receive community support; and (3) none of the principles of sentencing
    would be served by reincarcerating the appellant for a brief period of time at
    this stage.

[18]

In our view, this case is distinguishable from
Kebede
,
    and a conditional sentence would be inappropriate even if available. We accept
    the appellants contention that his rehabilitative prospects are similar to the
    situation in
Kebede
because he has made tremendous progress during his
    time on bail. However, while the sentencing judge was sympathetic to the
    appellant's position, we are not satisfied that she would have imposed a
    conditional sentence had it been available. On the contrary, the sentencing
    judge found that this was a very serious crime requiring a custodial
    disposition of some substance.

[19]

Further, unlike in
Kebede
, this is not
    a case where none of the principles of sentencing would be advanced by having
    the appellant serve a custodial sentence. As the sentencing judge correctly
    noted, the principles of deterrence and denunciation play an important role in
    the sentencing for robberies.

(3)

Should this court interfere with the sentence
    imposed based on post-sentencing events?

[20]

The appellant also submits that we should reduce
    or otherwise change his sentence based on post-sentencing events. In this
    regard, the appellant makes three arguments.

[21]

First, he submits that this court should reduce
    his sentence due to his bail conditions pending appeal. We see no basis to
    award any such credit. The terms of the bail pending appeal were similar to the
    terms of his curfew bail at trial and were hardly punitive or akin to custody.

[22]

Second, the appellant has filed fresh evidence,
    including a letter from his doctor regarding the impact of COVID-19. We admit
    this evidence largely on the basis that it was not available at the time of
    sentencing. The doctor indicates "that incidents of COVID-19 at detention
    centres and correctional facilities are on the rise." The basis for his
    statement is unclear. He proceeds to advise that the appellant has a higher
    risk of complications from COVID-19 because of his history of pneumonia.
    However, he then contradicts this statement by indicating that he has ordered
    tests that "would be helpful in determining if [the appellant] is at
    higher risk of suffering complications from COVID-19."

[23]

We are not persuaded by the fresh evidence that
    the appellant is at greater risk of complications from COVID-19 than the
    general population and that, as a result, he should have his 12-month custodial
    sentence altered. If he genuinely does have a health concern, he is free to apply
    for early release under s. 121 of the
Corrections and Conditional Release
Act, S.C. 1992, c. 20. In any event, concerns about COVID-19 cannot be utilized
    to justify the imposition of an unfit sentence:
Bell
, at para. 9;
R.
    v. Kanthasamy
, 2021 ONCA 32, at para. 9.

[24]

Third, the appellant relies on
R. v Ghadban
,
    2015 ONCA 760, 342 O.A.C. 177, in support of his submission that this court has
    the authority to reduce an otherwise fit sentence based on the progress an
    offender has made while awaiting their appeal. We do not give effect to this
    submission. This case is distinguishable from Ghadban because here, the
    sentencing judge already took into account the substantial progress the
    appellant had made in turning his life around. That progress took place before
    sentencing and was reflected in the sentence imposed.

(4)

Should this court delay its disposition of the
    appellants case to see whether Parliament amends the
Criminal Code
?

[25]

The federal government has tabled legislation,
    Bill C-22, An Act to amend the
Criminal Code
and the
Controlled
    Drugs and Substances Act
, 2nd Sess, 43 Parl, 2021 (first reading 18
    February 2021), which would remove the one-year mandatory minimum sentence for
    the use of an imitation firearm in the commission of an indictable offence and
    allow the imposition of conditional sentences for offences that carry a maximum
    sentence of no more than 14 years. Parliament has not passed that bill. The
    appellant submits that this court should wait to determine his appeal because
    Bill C-22 could impact his sentence by removing both the minimum sentence and
    permitting the imposition of a conditional sentence.

[26]

This submission does not persuade us. Leaving
    aside the wisdom of waiting for a potential change in the law that may never
    come, we are not satisfied that the passage of Bill C-22 would make any
    difference to the appellant's case. For the reasons described above, even if a
    conditional sentence were available, this is not an appropriate case for such a
    sentence, and a further reduced sentence would not be fit.

(5)

Should this court consider the constitutionality
    of s. 85 of the
Criminal Code
?

[27]

We agree with the conclusion of the sentencing
    judge that it is unnecessary to consider the appellants s. 12 argument
    because, for the reasons cited above, a sentence below the one already imposed
    would be unfit.

D.

disposition

[28]

Leave to appeal sentence is granted, and the
    fresh evidence is admitted. However, the sentence appeal is dismissed.

C.W. Hourigan J.A

David M. Paciocco J.A.

B. Zarnett J.A.


