



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marshall, 2021 ONCA 344

DATE: 20210521

DOCKET: C68340 & C68526

Doherty, Zarnett and Coroza JJ.A.

BETWEEN

C68340

Her Majesty the Queen

Appellant

and

Justice Marshall

Respondent

BETWEEN

C68526

Her Majesty the Queen

Appellant

and

Justice Marshall

Respondent

Samuel Greene, for the appellant, Her Majesty the Queen

Paul Calarco, for the respondent, Justice Marshall

Heard: January 5, 2021 by video conference

Applications for leave to appeal and, if leave is granted,
    appeals from the sentences imposed by Justice D. Moore of the Ontario Court of
    Justice on April 22, 2020 (C68340), and the sentence imposed by Justice M. Wong
    of the Ontario Court of Justice on July 2, 2020 (C68526).

Doherty J.A.:


I



overview

[1]

The Crown seeks leave to appeal from two sentences imposed on the
    respondent, Mr. Marshall. The Crown claims Mr. Marshall received too much
    credit for pretrial custody in the first sentencing proceeding and that error
    led to the imposition of an inappropriate sentence at the second sentencing proceeding.
    Counsel for Mr. Marshall contends the Crown has no appeal from the first
    sentence imposed and that, in any event, both sentences were fit and should not
    be varied.

[2]

The ultimate issue presented on the appeals is straightforward, and both
    counsel have clearly articulated their positions. Unfortunately, one must slog
    through a blizzard of numbers and calculations to properly understand the
    arguments and determine the fitness of the sentences.

[3]

Justice Marshall was arrested on April 15, 2019 and charged with
    firearms related offences. He was detained in custody. On May 2, 2019, while in
    custody, he was charged with failing to remain at the scene of an accident,
    causing bodily harm, contrary to s. 320.16(2) of the
Criminal Code
. He
    remained in custody.

[4]

By April 22, 2020, Mr. Marshall had been in custody pending trial on
    various matters for slightly over a year. On that day, he pled guilty to the
    fail to remain charge and received a suspended sentence, followed by probation
    for two years. He remained in custody on the firearms charges.

[5]

About three months later, on July 17, 2020, Mr. Marshall pled guilty to
    firearms charges. He received a suspended sentence with probation for three
    years. He remained in custody on other outstanding charges.

[6]

On December 8, 2020, Mr. Marshall pled guilty to his remaining charges
    and received a further suspended sentence with probation. He was released from
    custody and, as of the hearing of these appeals, remained at large on the terms
    of the various probation orders.

[7]

The Crown seeks leave to appeal the sentences imposed on the fail to
    remain charge (
Marshall #1
) and the firearms charges (
Marshall #2
).
    There is no appeal from the sentence imposed on the third set of charges on December
    8, 2020.

[8]

The Crowns arguments target alleged errors made in
Marshall #1
.
    However, the Crown does not seek to vary the suspended sentence imposed in that
    proceeding. Instead, the Crown argues the errors made in
Marshall #1
impacted on the sentence imposed in
Marshall #2
. The Crown asked the
    court to vary the sentence imposed in
Marshall #2
from a suspended
    sentence to a sentence of 222 days incarceration, followed by probation.

[9]

For the reasons that follow, I would grant leave to appeal in
Marshall
    #1
. I would allow the appeal, but only to the extent of varying the credit
    for pretrial custody. I would grant leave to appeal in
Marshall #2
and
    I would dismiss the appeal.


II



the sentencing on the fail to
    remain charges (
marshall #1
)

[10]

The
    appellant pled guilty to failing to remain on April 22, 2020. He was sentenced
    on the same day. Mr. Marshall had been in custody for 357 days on that charge
    (May 2, 2019  April 22, 2020). He had been in custody for a total of 373 days
    (April 15, 2019  April 22, 2020). The Crown and defence agreed the time Mr.
    Marshall had spent in pretrial custody exceeded the jail sentence he should
    receive on the fail to remain charge and Mr. Marshall should receive a
    suspended sentence with probation on that charge. Counsel disagreed over how
    much of Mr. Marshalls pretrial custody should be taken into account in
    determining his sentence on the fail to remain charge.

[11]

The
    Crown and defence also agreed on the methodology to be used in calculating Mr.
    Marshalls sentence. The Crown argued the trial judge should start with the
    sentence he would have imposed but for Mr. Marshalls pretrial custody. The
    Crown submitted a sentence of 12 months (365 days) would have been appropriate.
    The Crown argued the trial judge should deduct from that 12 months, an amount
    attributable to the severe conditions endured by Mr. Marshall in pretrial
    custody. The Crown and defence agreed that, in light of the many lockdowns and
    the very difficult conditions in the institution after the arrival of COVID-19
    in March 2020, Mr. Marshall should receive enhanced credit for pretrial custody
    of 85 days. This enhanced credit is sometimes referred to as a 
Duncan

    credit:
R. v. Duncan
, 2016 ONCA 754.

[12]

The
    Crown submitted that a deduction of the 85-day 
Duncan
 credit from
    the 12-month sentence (365 days) left a sentence of 280 days (365 - 85). The
    Crown agreed that the 
Summers
 credit, provided for by s. 719(3.1) of
    the
Criminal Code
, should be applied to give Mr. Marshall 1.5 days
    credit for each day in pretrial custody:
R. v. Summers
, 2014 SCC 26.
    On that arithmetic, 187 days of pretrial custody was the equivalent of a
    280-day sentence (187 x 1.5 = 280), leaving 186 days of Mr. Marshalls pretrial
    custody unattributed (373 - 187).

[13]

The
    defence started its calculation on the basis that a fit sentence, but for
    pretrial custody, was five months (154 days). The defence then deducted the agreed
    upon 
Duncan
 credit, leaving 69 days to be served (154 - 85).
    Applying the 1.5:1 ratio from
Summers
, 46 days of pretrial custody
    would be used up to account for the 69 days remaining (46 x 1.5), leaving 327
    days of pretrial custody unattributed (373 - 46).

[14]

On
    the positions advanced by both the Crown and defence, Mr. Marshall would
    receive a suspended sentence with probation. On the Crowns position, he would
    have 186 days of his pretrial custody left to be applied to any subsequent
    sentence. On the defence position, Mr. Marshall would have 327 days left to be
    applied to any subsequent sentence, a difference of 141 days.

[15]

The
    trial judge concluded, but for Mr. Marshalls presentence custody, he would
    have imposed a sentence of eight months. The trial judge referred to several
    mitigating factors, including Mr. Marshalls age, the strong
Gladue
considerations, the severe post-COVID-19 jail conditions, and the significance
    of Mr. Marshalls guilty plea. He also referred to aggravating factors,
    including Mr. Marshalls prior related record.

[16]

The
    trial judge proceeded to blend considerations relevant to the 
Duncan

    credit and the 
Summers
 credit and concluded 39 days of Mr.
    Marshalls pretrial custody should be treated as the equivalent of the 8-month
    sentence the trial judge would have imposed. The trial judge did not specifically
    quantify the 
Duncan
 credit. However, a 
Summers
 credit for
    39 days pretrial custody equals 59 days. The 
Duncan
 credit accounted
    for the remaining six months of the eight-month sentence the trial judge
    considered to be the appropriate sentence but for pretrial custody.

[17]

The
    trial judge identified the specific 39 days he was taking into account in
    imposing the sentence, as the days between March 14, 2020, when the effect of COVID-19
    was first felt in the jails, and April 22, 2020 when Mr. Marshall was sentenced
    on the fail to remain charge. The deduction of 39 days from the total pretrial
    custody left 334 days unaccounted for (373 - 39). This was 148 days more than
    the Crown had suggested and 7 days more than the defence had suggested.

[18]

The
    trial judge proceeded to impose a suspended sentence with two years probation.
    As required by s. 719(3.3), he noted on the information that Mr. Marshall had
    been credited on his sentence with 59 days for 39 days presentence custody.


III



the sentencing on the firearms
    charges (
marshall #2
)

[19]

On
    July 17, 2020, three months after he was sentenced on the fail to remain
    charge, Mr. Marshall pled guilty to two charges involving possession of a sawed
    off semi-automatic shotgun, and two charges involving the possession and unsafe
    storage of ammunition. The ammunition could not be used in the shotgun. Mr.
    Marshall was under a weapons prohibition order when he was found in possession
    of the shotgun.

[20]

The
    Crown submitted, but for pretrial custody considerations, sentences totalling
    two years (730 days) would be appropriate in the circumstances. The Crown submitted,
    in normal circumstances, the seriousness of the offences would require a
    lengthier jail term. However, the Crown pointed to several mitigating factors,
    emphasizing the importance of Mr. Marshalls guilty plea, which avoided a
    lengthy trial. The Crown acknowledged that a lengthy trial would severely tax
    the available court resources as the system struggled to cope with the impact
    of COVID-19.

[21]

At
    the time of the sentencing on the firearms charges, Mr. Marshall had been in
    custody on those charges for 459 days (April 15, 2019  July 17, 2020). Of the
    459 days, 39 had been attributed to the sentence imposed on the fail to remain
    charge in
Marshall #1
, leaving 420 days pretrial custody unaccounted
    for. The Crown submitted Mr. Marshall was entitled to a 
Summers

    credit on the 420 days. Applying the 1.5:1 ratio, the 
Summers
 credit
    amounted to 630 days (420 x 1.5). Deducting 630 days from a two-year sentence left
    100 days to be served by Mr. Marshall (730 - 630). The Crown argued there
    should be no 
Duncan
 credit and Mr. Marshall should receive a
    sentence of 100 days.

[22]

Defence
    counsel agreed, that setting aside the pretrial custody, a two-year sentence
    would be appropriate. Counsel also agreed with the Crowns calculations, but
    argued, that in all the circumstances, Mr. Marshall should not be required to
    serve any additional time on the firearms charges. Counsel emphasized the
    negative impact of COVID-19, not only on the conditions in the jail but on the
    health risks posed to the prisoners. Counsel submitted a suspended sentence
    with probation was the appropriate disposition.

[23]

The
    trial judge accepted the defence position. She referred to several mitigating
    factors, including the impact on Mr. Marshall of the conditions in the jail due
    to COVID-19. The trial judge imposed a suspended sentence with three years
    probation. It does not appear she noted the amount of time credited for
    presentence custody on the information.

[24]

The
    trial judges reasons for sentence are brief, as were counsels submissions. It
    is clear, however, from the transcript, the trial judge and counsel had
    conducted several judicial pre-trials over many months, aimed at resolving the
    charges. Through their efforts, the determination of the appropriate sentence
    had come down to a single question. Should Mr. Marshall be required to serve
    any additional imprisonment on account of the firearms charges?

[25]

The
    trial judges comments during sentencing make it clear she had told the parties
    during the pre-trials she was inclined to give considerable credit for guilty
    pleas, given the importance of guilty pleas to a criminal justice system struggling
    to adapt to the unique and very difficult circumstances presented in the early
    days of the pandemic. The trial judge did exactly what she told counsel she was
    inclined to do.


IV



the appeal in
marshall #1

[26]

Mr.
    Calarco, counsel for Mr. Marshall, raises a preliminary point on the appeal in
Marshall
    #1
. He submits, that s. 676(1)(a) of the
Criminal Code
allows the
    Crown to seek leave to appeal from the sentence passed by the trial judge and
    s. 687(1)(a) empowers this court to either vary the sentence passed or dismiss
    the appeal. Mr. Calarco contends the Crown does not appeal the sentence passed by
    the trial judge and does not seek any variation in that sentence. The Crown
    agrees now, as it did at trial, that a suspended sentence with probation is the
    proper sentence. Counsel submits the Crown does not challenge the fitness of
    the sentence imposed, but instead alleges errors in the trial judges analysis leading
    to the imposition of what Crown counsel concedes was a fit sentence.

[27]

Counsel
    for Mr. Marshall argues, the trial judge must consider many factors when fixing
    a sentence, including, in some cases, the credit to be given for pretrial
    custody. Although pretrial custody is relevant to fixing an appropriate
    sentence, it is not part of the sentence:
R. v. Mathieu
, [2008] 1
    S.C.R. 723, at para. 17. Counsel further contends the Crown is only entitled on
    a sentence appeal to challenge the fitness of the sentence imposed. If there is
    no quarrel with the fitness, there is no appeal from the analysis used to
    arrive at the sentence. In advancing this position, counsel relies on the well recognized
    principle that appeals are taken from orders and judgments, and not from the
    reasoning underlying orders and judgments.

[28]

Mr.
    Greene, for the Crown, acknowledges he does not ask the court to vary the
    suspended sentence imposed in
Marshall #1
. As he wrote in his factum,
    he asks this court to correct the significant legal errors in the sentencing
    judges analysis.

[29]

Mr.
    Greene argues, that for appeal purposes, a sentence may encompass more than simply
    the ultimate disposition. Just as pretrial custody is considered part of the
    punishment imposed for sentencing purposes, the quantification of credit for
    pretrial custody should be regarded as part of the sentence for appeal
    purposes:
R. v. Wust
, 2000 SCC 18;
R. v. McDonald
(1998), 40
    O.R. (3d) 641 (Ont. C.A.).

[30]

Support
    for the Crowns position can be found in s. 719(3.3.). That section requires
    the sentencing judge to specifically state in the record, and on the warrant of
    committal, the following:

·

the amount of time spent in custody;

·

the term of imprisonment that would have been imposed before any
    credit was granted;

·

the amount of time credited, if any; and

·

the sentence imposed.

[31]

Section
    719(3.3) requires trial judges to formally record the component parts of the sentencing
    calculation leading to the ultimate sentence imposed when pretrial custody is
    taken into account in determining the ultimate sentence. A failure to comply
    with s. 719(3.3), while not vitiating the sentence imposed, is an error in
    principle opening the door to appellate review for the purpose of adjusting
    the credit for time spent on remand. It seems logical that Parliament has
    required that the information specified in s. 719(3.3) be part of the formal
    record, so that it will be available for appellate review:
R. v. Murphy
,
    2015 NSCA 14, at 25.

[32]

Counsel
    for Mr. Marshall relies on
R. v. Mizen
, 2009 BCCA 253.
Mizen
is directly on point and supports Mr. Marshalls position that the Crown has no
    right of appeal in
Marshall #1
. In
Mizen
, the accused did not
    seek a variation of the ultimate sentence imposed, but asked the court to
    reduce the 33 ½ months recorded on the information as credit for pretrial
    custody. He argued a credit of 33 ½ months significantly overstated the
    seriousness of the offence and could work to his disadvantage in any subsequent
    sentencing proceeding.

[33]

The court in
Mizen
decided it
    had no jurisdiction to adjust credit for pretrial custody when there was no
    request to vary the actual sentence imposed:
Mizen
, at paras. 9-10. In
    reaching that conclusion, the court relied heavily on s. 719(1), which provides
    a sentence begins when it is imposed:
Mizen
, at para. 16. In holding
    there could be no appeal from the credit given for pretrial custody, the court
    accepted that the absence of an appeal could work an unfairness in some
    circumstances:
Mizen
, at para. 24.

[34]

Mizen
preceded
    the enactment of s. 719(3.3). Indeed, the court in
Mizen
emphasized the sentencing judge had no authority
    under the
Criminal Code
,
    as it stood, to record pretrial custody as part of the sentence imposed:
Mizen
, at paras. 20, 26. After the enactment of s. 719(3.3),
    the trial judge is required to record pretrial custody when describing the
    sentence imposed.

[35]

In
    my view, s. 719(3.3), not only ensures correctional authorities and subsequent
    sentencing judges have a full picture of the sentence imposed in an earlier
    proceeding, it allows an appellate court the same advantage when reviewing a
    sentence on appeal. In my view, on a sentence appeal, this court is entitled to
    consider, and if necessary vary, any of the information which s. 719(3.3)
    requires included as part of the formal record of the sentence imposed.

[36]

In
    recognizing that the appeal court may vary the information recorded by virtue
    of s. 719(3.3) and not vary the actual sentence imposed, I do not suggest that
    appeals which do not challenge the ultimate sentence imposed will be common. In
    the vast majority of cases, arguments in respect of pretrial custody calculations
    will be advanced to show how the trial judge ultimately came to impose an unfit
    sentence. However, as acknowledged in
Mizen
, there will be cases, both
    from the defence and Crown perspective, when a variation in credit for
    presentence custody that does not alter the ultimate sentence imposed is
    necessary in the interests of justice.

[37]

In
Marshall
    #1
, the Crown asked the court to vary the sentence in two ways:

·

direct that 12 months, and not 8 months, was the appropriate
    sentence before taking into account pretrial custody; and

·

direct that credit for pretrial custody be varied from 39 days to
    272 days (187 days for a 
Summers
 credit and 85 days for a 
Duncan

    credit).

[38]

I
    would hold, the Crown can seek the variations set out above on a sentence
    appeal. I turn now to whether they should get them in this case.


V



the merits of the appeal in
    marshall #1

[39]

I
    start with the trial judges determination, that but for the pretrial custody,
    a sentence of eight months would have been appropriate. The trial judge
    canvassed all of the relevant factors. While he perhaps gave more weight to
    some mitigating factors than would other trial judges, his assessment was not unreasonable.
    I would defer to his assessment and proceed on the basis that eight months
    would have been the appropriate sentence.

[40]

I
    move next to the 
Duncan
 credit. With the encouragement of the trial
    judge, the Crown and defence were able to agree Mr. Marshall should receive a 
Duncan

    credit of 85 days. They agreed that credit should be deducted from what would
    have been an appropriate sentence but for the pretrial custody. Defence and
    Crown also agreed that Mr. Marshall would not be entitled to any further 
Duncan

    credit in any subsequent sentencing proceeding in respect of his incarceration
    between May 2, 2019 when he was arrested on the fail to remain charge and April
    22, 2020 when he was sentenced on that charge.

[41]

The
    Crown submits the trial judge erred in not accepting the joint submission as to
    the amount of the 
Duncan
 credit. Crown counsel equates the joint
    position with respect to the 
Duncan
 credit with a joint submission as
    to the ultimate sentence to be imposed. He argues the rationale in
R. v.
    Anthony-Cook
, 2016 SCC 43 applies to both situations.

[42]

I
    need not decide whether
R. v. Anthony-Cook
had direct application. It
    is to everyones advantage if counsel reaches an agreement as to the amount of
    any 
Duncan
 credit. Doing so avoids adjournments in the sentencing
    process to compile the necessary information, and avoids lengthy evidentiary
    hearings, which will often yield results that are less than definitive.

[43]

If
    counsel are able to agree on the 
Duncan
 credit, the trial judge
    should depart from that agreement, only after careful consideration and after
    giving counsel a full opportunity to address any concerns the trial judge might
    have. The trial judge should also provide reasons for departing from the figure
    agreed upon by counsel.

[44]

The
    trial judge offered no specific reason for departing from the agreed upon 
Duncan

    credit, indicating only he had considered all factors. The agreed upon 
Duncan

    credit was a significant deduction, especially since Mr. Marshall had been in
    custody under COVID-19 conditions for only 30 days of his pretrial
    incarceration. The sentence to be imposed on Mr. Marshall also did not involve
    him serving any additional jail time. The trial judge should have explained why
    he chose to depart so significantly from the agreed upon 
Duncan

    credit.

[45]

Crown
    counsel submits the trial judges overly generous 
Duncan
 credit is
    explained by his double counting. The Crown contends the trial judge gave Mr.
    Marshall credit for various mitigating factors when fixing eight months as the
    appropriate sentence, but for pretrial custody, and then took the same
    mitigating factors into account when giving Mr. Marshall a very substantial 
Duncan

    credit. Counsel points to the trial judges consideration of the
Gladue
factors as a prime example of the double counting.

[46]

My
    review of the trial judges reasons supports the Crowns submissions. The trial
    judge did address many of the same mitigating factors when fixing the
    appropriate sentence, but for pretrial custody, and when assessing the 
Duncan

    credit.

[47]

There
    was no reason to depart from the 
Duncan
 credit agreed upon by
    counsel. It was a significant credit and amply recognized the factors which
    rendered Mr. Marshalls pretrial custody particularly difficult.

[48]

Had
    the trial judge applied the 
Duncan

credit agreed upon by counsel, that credit would have reduced what the trial
    judge regarded as the appropriate sentence from 8 months (245 days) to 160 days
    (245 - 85). Applying the 
Summers
 credit for pretrial custody, a 160-day
    sentence would have consumed 107 days of pretrial custody (107 x 1.5).

[49]

The
    trial judge concluded that 39 days of pretrial custody would account for the
    entire 8-month sentence he deemed appropriate. Had he accepted the agreement of
    counsel with respect to 
Duncan
 credit, as he should have, he would
    have concluded that 107 days of pretrial custody accounted for the 8-month
    sentence. I would vary the endorsement on the information to indicate Mr.
    Marshall was given credit for pretrial custody of 160 days, based on 107 days
    of actual pretrial custody.

[50]

Before
    I move to
Marshall #2
, I propose to make some observations about the
    calculation of the 
Duncan
 credit. A 
Duncan
 credit is
    given on account of particularly difficult and punitive presentence custody
    conditions. It must be borne in mind the 1.5:1 
Summers
 credit
    already takes into account the difficult and restrictive circumstances
    offenders often encounter during pretrial custody:
Summers
, at paras.
    28-29. The 
Duncan
 credit addresses exceptionally punitive conditions
    which go well beyond the normal restrictions associated with pretrial custody.
    The very restrictive conditions in the jails and the health risks brought on by
    COVID-19 are a good example of the kind of circumstance that may give rise to a
    
Duncan
 credit:
R. v. Morgan
, 2020 ONCA 279.

[51]

It
    is also important to appreciate and maintain the clear distinction between the
    
Summers
 credit and the 
Duncan
 credit. The 
Summers

    credit is a deduction from what the trial judge determines to be the
    appropriate sentence for the offence. The 
Summers
 credit is
    calculated to identify and deduct from the appropriate sentence the amount of
    the sentence the accused has effectively served by virtue of the pretrial
    incarceration. The 
Summers
 credit is statutorily capped at 1.5:1. It
    is wrong to think of the 
Summers
 credit as a mitigating factor. It
    would be equally wrong to deny or limit the 
Summers
 credit because
    of some aggravating factor, such as the seriousness of the offence:
R. v.
    Colt
, 2015 BCCA 190.

[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. Particularly punitive pretrial incarceration conditions
    can be a mitigating factor to be taken into account with the other mitigating
    and aggravating factors in arriving at the appropriate sentence from which the
    
Summers
 credit will be deducted. Because the 
Duncan
 credit
    is one of the mitigating factors to be taken into account, it cannot justify
    the imposition of a sentence which is inappropriate, having regard to all of
    the relevant mitigating or aggravating factors.

[53]

Often
    times, a specific number of days or months are given as 
Duncan

    credit. While this quantification is not necessarily inappropriate, it may skew
    the calculation of the ultimate sentence. By quantifying the 
Duncan

    credit, only one of presumably several relevant factors, there is a risk the 
Duncan

    credit will be improperly treated as a deduction from the appropriate sentence
    in the same way as the 
Summers
 credit. If treated in that way, the 
Duncan

    credit can take on an unwarranted significance in fixing the ultimate sentence
    imposed:
R. v. J.B.
(2004), 187 O.A.C. 307 (C.A.). Arguably, that is
    what happened in this case, where on the trial judges calculations, the 
Duncan

    credit devoured three-quarters of what the trial judge had deemed to be the
    appropriate sentence but for pretrial custody.


VI



the merits of the appeal in
    marshall #2

[54]

As
    outlined above, the trial judge in
Marshall #2
decided Mr. Marshall
    should not be required to serve any additional time in jail on the firearms
    charges. To achieve that end, she gave Mr. Marshall credit for 100 days
    pretrial custody, above and beyond the 
Summers
 credit. The Crown
    submits the trial judge erred in doing so.

[55]

The
    Crown further contends the trial judges error in
Marshall #2
is
    magnified if this court agrees with the submission that the pretrial credit
    exhausted in
Marshall #1
should have been considerably more than the
    39 days allocated by the trial judge in
Marshall #1
.

[56]

The
    trial judge in
Marshall #2
was required to proceed on the basis that
    only 39 days of Mr. Marshalls pretrial custody had been used up on the
    sentencing in
Marshall #1
. She was entitled to take into account the
    trial judges treatment of pretrial custody in
Marshall #1
when deciding
    what, if any, additional 
Duncan
 credit should be given. That
    consideration was particularly apt, given the agreement in
Marshall #1
that the 
Duncan
 credit would exhaust any entitlement to a further 
Duncan

    credit for the vast majority of Mr. Marshalls pretrial custody.

[57]

It was,
    however, not argued in
Marshall #2
that the 
Duncan
 credit
    given in
Marshall #1
should eliminate the possibility of a further 
Duncan

    credit. The 
Duncan
 credit given in
Marshall #1
was not
    mentioned in the submissions in
Marshall #2
.

[58]

As I
    read the record of the sentencing in
Marshall #2
, the exact amount of
    credit to be given Mr. Marshall for pretrial custody was not the trial judges
    primary consideration. In the unique circumstances of the case, the trial judge
    saw immense value to the maintenance of the effective operation of the criminal
    justice system flowing from Mr. Marshalls willingness to plead guilty to serious
    charges. The trial judge was prepared to reflect that value in the sentence
    ultimately imposed.

[59]

The
    transcripts of the sentencing proceedings in
Marshall #1
and

Marshall #2
show how difficult
the conduct of even a
    simple proceeding had become in the criminal courts in the early summer of 2020
    because of COVID-19. It is difficult to see how the system could have
    accommodated a lengthy trial.

[60]

In the
    unique circumstances faced by the trial judge, she was entitled to give Mr.
    Marshall a substantial discount on his sentence following the guilty pleas. It
    was open to the trial judge to conclude the interests of justice would not be
    served by requiring Mr. Marshall to serve a further period of incarceration. Even
    if the pretrial custody attributable to the offence in
Marshall #1
was
    increased from 39 to 107 days, I have no doubt the trial judge in
Marshall
    #2
would still have concluded Mr. Marshall should not receive any further incarceration
    on the firearms charges.

[61]

The
    trial judge, who sits in the Ontario Court of Justice on a daily basis, was in
    a far better position than this court to appreciate the situation in her court
    and to make an informed assessment of the weight she should give to Mr.
    Marshalls guilty plea when sentencing him. The trial judge chose to impose,
    what was no doubt a lenient sentence. It was open to her to exercise her
    sentencing discretion in that manner. Hopefully, Mr. Marshall will take
    advantage of the leniency shown to him.


VII



conclusion

[62]

I
    would grant leave to appeal in
Marshall #1
, allow the appeal and vary
    the credit for pretrial custody from 39 days to 107 days. I would not otherwise
    vary the sentence imposed.

[63]

I
    would grant leave to appeal in
Marshall #2
, and dismiss the appeal.

Released: DD May 21, 2021

Doherty J.A.

I agree B. Zarnett J.A.

I agree Coroza J.A.


