



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2020 ONCA 196

DATE: 20200312

DOCKET: C65543

Hoy A.C.J.O., Feldman and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jasfa Brown

Appellant

Jasfa Brown, acting in person

Delmar Doucette, appearing as duty counsel

Jessica Smith Joy, for the respondent

Heard: February 13, 2020

On appeal from the convictions entered on March 13, 2018
    by Justice Kenneth L. Campbell of the Superior Court of Justice, sitting
    without a jury, and the sentence imposed on June 14, 2018.

REASONS FOR DECISION

[1]

On March 14, 2018, the appellant pleaded guilty to three offences,
    possession of a loaded restricted firearm without a license, possession of
    cocaine for the purpose of trafficking, and possession of a firearm while
    prohibited by court order, all having occurred on November 9, 2015. The
    prohibited items were located in the master bedroom of a residence connected to
    the appellant, in two locked safes. The appellants plea was based on wilful
    blindness as to the contents of the safes.

[2]

The appellant raised some arguments concerning the validity of his
    guilty plea. We see no basis upon which to interfere with the plea at trial.

[3]

The plea was given in conjunction with a joint submission on sentence of
    eight years, less credit for presentence custody. The defence sought various
    credits, including an enhanced credit to account for the harsh conditions the
    appellant endured in incarceration, pursuant to
R. v. Duncan
, 2016
    ONCA 754. The Crown took no position on the
Duncan
credit issue,
    leaving it to the sentencing judge to determine based on the description of the
    harsh conditions and their effect on the appellant, as documented and described
    by defence counsel in his submissions.

[4]

The issue on appeal is whether the sentencing judge erred in the amount
    of credit he accorded for the harsh conditions and their effects on the
    appellant during an extended period of presentence custody.

[5]

After considering the circumstances of the offences and of the offender as
    well as the joint submission, the sentencing judge imposed the eight-year
    sentence, then turned to the issue of credit for presentence custody. He first
    awarded a 1.5:1 credit for the 516 days the appellant spent in presentence
    custody, pursuant to
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575.
    Second, because the appellant also spent roughly a year of his presentence time
    on house arrest bail, the sentencing judge gave a further credit of 3.5 months,
    pursuant to
R. v. Downes
(2006), 79 O.R. (3d) 321 (C.A.).

[6]

The third aspect of presentence credit considered by the sentencing
    judge was the
Duncan
credit, given to compensate the accused for harsh
    conditions spent in presentence custody including lengthy periods of lock-down,
    and their effect on the particular accused. In
Duncan
, this court
    confirmed that presentence credit is not capped at the statutory 1.5:1 under s.
    719(3.1) of the
Criminal Code
, but may, in appropriate circumstances,
    include additional credit for particularly harsh presentence incarceration
    conditions: at para. 6.

[7]

To present the basis for the
Duncan
credit, defence counsel provided
    the sentencing judge with what he described as a significant body of
    documentary evidence. The sentencing judge carefully reviewed what he was given
    and summarized the conditions and their effect on the appellant in his
    unreported reasons as follows:

·

That the accused experienced approximately six months of
    lock-down conditions in the institution. More particularly, he experienced 98
    full days in lock-down, and 83 partial days in lock-down. During these times,
    the accused had no access to showers, phone calls, or clothing changes, and
    these conditions negatively impacted upon his mental health issues surrounding
    his PTSD and Anxiety.

·

That the accused suffered through an acute health problem when
    his face became swollen in connection with a dental infection, which ultimately
    led to the need for emergency dental surgery, when this health problem was not
    addressed promptly by the institution.

·

That the accused, who suffers from a light sensitivity issue, was
    not provided with prompt access to his own prescribed sunglasses, and this led
    to him experiencing a seizure at one point.

·

That the accused suffered from a urological issue, which involved
    some bleeding and a bladder infection, during which he had to use a catheter,
    and this resulted in some physical difficulties over a period of time.

·

That the accused experienced difficulties promptly accessing some
    of the cannabis-based medication that he had previously been using for his
    mental health problems.

·

That the accused experienced ongoing problems accessing the
    necessary lubricant and suction device to properly care for the prosthetic for
    his left eye, and these problems may have led to an eye infection that the
    accused experienced while in custody.

·

That the accused experienced ongoing dietary issues in the
    detention center surrounding his long-standing food allergies, and his allergic
    reactions to some of the food that was provided to him.

·

That the accused experienced a number of other health-related
    problems while detained in custody, including rectal bleeding.

[8]

Based on these harsh conditions and their effect on the appellant,
    defence counsel at sentencing asked for a
Duncan
credit of 8 months.
    The Crown took no position and did not challenge any of the appellants
    evidence.

[9]

The sentencing judge rejected the request for 8 months but granted 4
    months credit in the following paragraph of his reasons:

Defence counsel contends that the accused should be given
    credit for an additional eight months (240 days) in custody as a result of the
    harsh conditions the accused suffered in the Toronto South Detention Centre,
    and their impact upon the accused. With respect, I find this proposed credit to
    be excessive, even in light of the fact that the accused suffers from a disability
    and other ongoing physical and mental health issues. In my view, in the
    circumstances of this case, given the duration of the full and partial lock
    down conditions, their adverse impact on the accused, and the other hardships
    the accused experienced during the course of his pre-sentence detention, the
    accused should be extended a further custodial credit that is equivalent to
    approximately four months[] imprisonment. See
R. v. Tello
, 2018 ONSC
    2259, at paras. 75-81.

[10]

The
Tello
case, referred to by the sentencing judge, was a
    decision made by the same judge involving similarly harsh conditions with
    similar effects on the accused. The same credit of 4 months was given.

[11]

On appeal, duty counsel on behalf of the appellant submitted that the
    credit of four months was so low that it amounted to an error in law resulting
    in an unfit sentence. The appropriate
Duncan
credit, he argued, should
    have been in the realm of 1.5:1 in accordance with more recent case law that
    has addressed the ongoing, serious conditions at the Toronto South Detention
    Centre that continue to give rise to claims for significant
Duncan
credit. Counsel referred to the decisions of Kelly J. in
R. v. Ward-Jackson
,
    2018 ONSC 178; of Molloy J. in
R. v. Fermah
, 2019 ONSC 3597, 56 C.R. (7th)
    154; and the recent decision of Schreck J. in
R. v. Persad
, 2020 ONSC
    188.

[12]

We agree that the cases referred to by duty counsel indicate that the
    conditions at Toronto South have not improved and that sentencing judges are
    recognizing the seriousness of the situation by giving significantly enhanced
Duncan
credit. The 4 months credit in this case is lower than the thrust of more
    recent reported decisions of the Superior Court: see
R. v. Charley
,
    2019 ONSC 6490, at paras. 59-68.

[13]

However, as both defence and Crown counsel submitted to the sentencing
    judge, the amount of credit to be given engages the discretion of the
    sentencing judge: see
R. v. Ledinek
, 2018 ONCA 1017;
R. v. U.A.
,
    2019 ONCA 946;
R. v. Deiaco
, 2019 ONCA 12. In
R. v. Lacasse
, 2015
    SCC 64, [2015] 3 S.C.R. 1089, the Supreme Court directed that for an appellate
    court to interfere in a sentence, the sentence must contain an error of law or
    an error in principle that impacted the sentence, or the sentence must be demonstrably
    unfit: at para. 11.

[14]

In this case, the sentencing judge applied the test from
Duncan
:
    he considered the harsh circumstances of the presentence custody and their
    effect on the appellant, then exercised his discretion. Although the credit is
    at the low end given the circumstances endured by the appellant, it cannot be
    said to be demonstrably unfit.

DISPOSITION

[15]

The appeal against conviction is dismissed. Leave to appeal the sentence
    is granted, but the appeal is dismissed except the $600.00 victim fine surcharge
    is set aside in accordance with
R. v. Boudreault
, 2018 SCC 58, [2018]
    3 S.C.R. 599.

Alexandra Hoy A.C.J.O.

K. Feldman J.A.

E.E. Gillese J.A.


