COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lis, 2020 ONCA 551

DATE: 20200903

DOCKET: C67405

Watt, Harvison Young and Coroza
    JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Meredith Lis

Respondent

Rebecca De Filippis and Lisa Joyal, for
    the applicant/appellant

Boris Bytensky and Brittany Smith, for the
    respondent

Heard: in writing

On appeal from the sentence imposed on August
    16, 2019 by Justice Lesley M. Baldwin of the Ontario Court of Justice with
    reasons reported at 2019 ONCJ 577.

Watt J.A.:

[1]

The
Criminal Code,
R.S.C., 1985, c. C-46,
imposes a duty on
    parents. They must provide the necessaries of life to their children under 16.
    Among the necessaries of life is medical assistance.

[2]

A parent who, without lawful excuse, fails to
    provide the necessaries of life to their child under 16 commits an offence if,
    by that failure, the parent causes the child's health to be endangered
    permanently.

[3]

Meredith Lis (the respondent) is a parent. She
    had four children of whom K.L. was the youngest.

[4]

K.L. lived with the respondent and one of her
    siblings. K.L. had cerebral palsy. She was globally and developmentally
    delayed. She could not walk unaided. She could not crawl. She was non-verbal.
    She wore diapers and slept in a baby's crib. She ate only puréed food and a
    liquid supplement.

[5]

When K.L. was nine years old, weighing only 31
    pounds, she died of complications of malnutrition and dehydration in the
    setting of cerebral palsy. K.L. died because her mother  the respondent  failed
    to obtain the medical assistance K.L. so desperately needed.

[6]

The respondent pleaded guilty before a judge of
    the Ontario Court of Justice on an information containing four counts:

·

failure to provide the necessaries of life;

·

possession of heroin;

·

possession of methamphetamine; and

·

failure to attend court when required.

[7]

The sentencing judge awarded enhanced credit for
    the time the respondent had spent in pre-disposition custody. This period, the sentencing
    judge calculated, amounted to the functional equivalent of a sentence of 17
    months imprisonment.

[8]

On the count of failure to provide the
    necessaries of life, the sentencing judge sentenced the respondent to
    imprisonment for one day, to be followed by probation for three years.

[9]

The Crown appeals the sentence imposed.

[10]

In these reasons, I explain why I would grant
    leave to appeal, allow the appeal, and impose a sentence of three years in a
    penitentiary. From that sentence, I would deduct 17 months as credit for
    pre-disposition custody, leaving a net sentence of 19 months imprisonment. I
    would not disturb the terms or length of the probation order. The Crown does
    not ask that we reincarcerate the respondent to serve what remains of her
    sentence and I would not do so.

The Background Facts

[11]

The Crown alleged that over a period of about five
    and one-half weeks, the respondent's failure to provide K.L. with sufficient
    food, water, and medical attention caused K.L. to die. K.L. was totally
    dependent on the respondent and others to care for her.

The Hospitalization in 2016

[12]

In early 2016, K.L.'s father took her to the
    emergency ward of a local hospital in Eastern Ontario. K.L. was dehydrated,
    lethargic, and congested. She was transferred to a larger hospital where she
    was examined by specialists and her nutritional needs established.

[13]

About two weeks after K.L. had been released
    from hospital, the respondent took her to a doctor. K.L. was to return to the
    doctor every three months, be seen by a pediatrician to whom she was referred,
    and continue to attend a local respite care facility.

[14]

The respondent did not take K.L. to her family
    doctor every three months as the doctor requested. Her next and last visit was
    nine months later, on December 20, 2016. K.L. then weighed 42.13 pounds.

The Involvement of CAS

[15]

The Children's Aid Society (CAS) were
    extensively involved with the respondent's family. Their involvement stemmed
    from the respondents substance abuse and neglect of her children through
    inadequate supervision. Workers were concerned about custody and access and its
    impact on the children, particularly K.L., who was left under the supervision
    of an older sibling from time to time.

[16]

The respondent's mother died in March 2017. Her
    death had a significant impact on the respondent. The children were frequently
    absent from school. K.L.'s wheelchair needed maintenance. The respondent
    struggled with her mother's death and K.L.'s transfer from regular classes to a
    Life Skills program. She was behind in her rent and feared eviction.

[17]

The CAS required face-to-face visits every 30
    days. The last home visit occurred on June 26, 2017, after which the respondent
    cancelled or rescheduled all subsequent visits. None took place.

The Final Days

[18]

A few days before K.L. died, the respondent told
    a friend that K.L. was really sick and was not eating or drinking. The friend
    told the respondent to take K.L. to the hospital. The respondent demurred.

[19]

On the day K.L. died, the respondent asked a
    friend to come over to watch the children because she wanted to go out for a
    couple of hours. The respondent left the friend in charge of the children and
    left to visit another friend with whom she smoked a joint.

[20]

Shortly after the respondent left her home, the
    sitter checked on the children. K.L. was not breathing. The sitter called the
    respondent who freaked out". When it was suggested that she should call
    911, the respondent repeated I've got to think". Her companion called
    911.

The 911 Response

[21]

Within minutes, first responders found K.L. on
    the floor in the living room of the respondent's apartment. K.L. had no vital
    signs. The coroner, who arrived about one and one-half hours after the paramedics,
    indicated that based on the presence of
rigor

mortis
, the
    deceased could have died four to six hours earlier.

The Cause of Death

[22]

The deceased died of complications of
    dehydration and malnutrition in the context of cerebral palsy. When last
    weighed on July 28, 2017, K.L. weighed 45 pounds. For 14 months she had not
    weighed less than 40 pounds. When she died, she weighed 31 pounds. She had lost
    nearly one third of her body weight between July 28 and September 4, 2017, a
    period of about five and one-half weeks.

The Sentencing Proceedings

[23]

The sentencing judge ordered a Presentence
    Report which, together with the submissions of counsel, provided information
    about the respondent and her circumstances.

The Circumstances of the Respondent

[24]

The respondent was 41 years old when K.L. died
    and 43 when she was sentenced. She had a difficult childhood fraught with
    emotional abuse from her mother and an absent father. First kicked out"
    of the family home at age 13, she returned intermittently before she left for
    good at age 15. Despite an aptitude for academics, she did not complete high
    school. She had worked in various service jobs until she was 30 but did not
    work outside the home thereafter.

[25]

The respondent has had four children. Her first
    child was born when she was 16. As an adult, the respondent has been involved
    in two abusive relationships, including one with K.L.'s father. She has a
    lengthy history of drug abuse.

[26]

Trial counsel filed several reference letters on
    behalf of the respondent. Their authors attested to the respondent's caring
    nature and willingness to help others. While in custody awaiting trial, the
    respondent participated in a methadone program as well as several other life
    skills oriented sessions.

The Positions of the Parties on Sentence

[27]

The trial Crown sought a sentence of four years
    in a penitentiary on the conviction for failing to provide the necessaries of
    life and concurrent sentences of much briefer durations for the drug and
    failure to attend court convictions. The Crown emphasized the egregious nature
    of the offence, which involved a significant breach of trust in connection with
    a highly vulnerable child, as well as the paramountcy of the sentencing
    objectives of deterrence and denunciation. She advocated for the imposition of
    a sentence that reflected the principles applied in cases of sexual abuse of
    children and gave effect to a recent statutory amendment increasing the
    punishment on conviction from a maximum of two to five years.

[28]

Trial counsel for the respondent identified the
    applicable range of sentence as a term of imprisonment of 12 months to 3 years.
    She acknowledged that a penitentiary sentence was warranted and accepted that
    it should not be at the lowest end of the range due to the gravity of the
    respondent's conduct. Counsel submitted that an appropriate sentence was two
    and one-half years, less enhanced credit for pre-disposition custody, coupled
    with a probation order for three years with a term requiring counselling.

[29]

The parties agreed that the respondent should
    receive enhanced credit for pre-disposition custody. The sentencing judge
    calculated that credit at 17 months.

The Reasons for Sentence

[30]

The sentencing judge reserved her decision on
    sentence for two months. She provided lengthy reasons in which she canvassed:

·

the circumstances of the deceased;

·

the circumstances of the offence;

·

the circumstances of the offender; and

·

the positions of the parties.

[31]

In a part of her reasons designated
Sentencing
    Principles - Criminal Code of Canada
, the sentencing judge reproduced the
    text of ss. 718, 718.01, 718.1 and 718.2 of the
Criminal Code
before
    turning to
Enhanced Pre-Sentence Custody Credit
, a listing of
    mitigating, aggravating, and other factors.

[32]

The essence of the sentencing judge's reasons
    appears in two passages. The first, entitled
Synthesis
, the second,
Sentences
.
    Omitting the headings, the relevant paragraphs are these:

[
192
]

This case is a
    pure tragedy all around. There are no black or white lines as various family
    members have tried to portray. There is only dense grey smoke.

[
193
]

Clearly a
    message needs to be sent by the Court to the community that those responsible
    for the care of vulnerable persons cannot just hide in plain sight, as Meredith
    did, nor collapse within oneself, as Meredith did, without calling out for help.

[
194
]

The most
    significant aggravating factor in this case is Merediths collapse to the point
    that she could no longer see if [K.L.] was alive or dead.

[
195
]

I have found
    as fact based on the evidence that [K.L.] was already dead when Meredith left
    the apartment at 5 pm to smoke drugs with a friend.

[
196
]

Considering
    both the mitigating, aggravating and other factors that have been presented at
    this hearing, this is not a case to impose a sentence of 4 years as submitted
    by the Crown. This is not a worst-case offender even though the victim was the
    most fragile of victims. [
K.L.]
had
    been sick for most of her life. Meredith took good care of her for most of her
    life. The total failure period as I calculate it to be is 17 days out of this
    childs nine years.

[
197
]

A total
    sentence of 2 and ½ years (30 months) as proposed by the Defence. I find this
    position to be high in all the circumstances of this tragedy.

[
198
]

Given
    that Meredith Lis has enhanced credit for pre-trial custody of 17 months her
    sentence will be one of time-served. I have considered the totality principle
    of sentencing in my final decision.

[33]

The sentence imposed was one day on each count
    to be served concurrently with each other, followed by a period of probation
    for three years on terms including recommended counselling or treatment for
    substance abuse, mental health and grief counselling, and a prohibition against
    consumption or possession of non-medically prescribed illegal drugs.

The Grounds of Appeal

[34]

The Crown contends that the sentencing judge
    erred:

i.

in failing to treat denunciation and deterrence
    as the paramount sentencing objectives as required by s. 718.01 of the
Criminal
    Code
;

ii.

in assessing the mitigating factors;

iii.

in interpreting and applying the principle of
    proportionality; and

iv.

in imposing a sentence that is demonstrably
    unfit.

Ground #1: Failing to Accord Primacy to Denunciation and
    Deterrence under Section 718.01

[35]

The first ground of appeal does not require any
    further reference to the circumstances of the offence or those of the
    respondent. A brief summary of the arguments advanced by the parties will
    provide a sufficient frame for the discussion that follows.

The Arguments on Appeal

[36]

The Crown appellant contends that, when read as
    a whole, the reasons for sentence demonstrate that the sentencing judge gave
    greater consideration to the respondent's rehabilitative prospects than to the
    sentencing objectives of deterrence and denunciation. In doing so, the
    sentencing judge made a fundamental error in principle.

[37]

The Crown submits that this case involved the
    abuse of a person under 18 years of age. As a result, s. 718.01 of the
Criminal
    Code
was engaged. This
required
the sentencing judge to give
    primary consideration to the sentencing objectives of denunciation and
    deterrence, not rehabilitation. The mandatory nature of s. 718.01 required a
    substantial penitentiary sentence to vindicate those primary sentencing
    objectives. The sentence imposed was inadequate. It failed to reflect
    denunciation, which is offence, not offender-focused, or general deterrence,
    which punishes an offender more severely, not because she deserves it, but
    because the sentencing court decides to send a message to others who may be
    inclined to engage in like activity.

[38]

The respondent emphasizes the highly
    individualized nature of the sentencing process which accords substantial
    leeway to sentencing judges in balancing competing sentencing objectives.
    Simply because the appellant or even this court might assign different weight
    to a sentencing objective, such as rehabilitation, does not amount to an error
    in principle or otherwise permit appellate intervention.

[39]

The respondent says that far from failing to
    accord primacy to the sentencing objectives of denunciation and deterrence, the
    sentencing judge referred to s. 718.01 and made it clear that a message was
    required to deter others from similar conduct and denounce the offence. Neither
    the sentence imposed nor anything in the reasons demonstrates an erroneous
    substitution of rehabilitation as the primary sentencing objective in lieu of
    denunciation and deterrence as required by s. 718.01.

[40]

According to the respondent, the sentencing
    judge appreciated the seriousness of the respondents offence and its high
    degree of moral blameworthiness. She did not err by considering the sentencing
    objective of rehabilitation, having already made it clear that denunciation and
    deterrence occupied the most prominent place. The sentence imposed fell within
    the applicable sentencing range, even after Parliament had increased the
    maximum sentence from two to five years. That the sentencing judge could have
    imposed a sentence more towards the upper end of that range does not mean that
    appellate intervention is warranted.

The Governing Principles

[41]

Before examining the specific claims of error
    advanced, it is helpful to recall some brief points about the standard we are
    to apply on our review of the fitness of a sentence imposed under s. 687(1) of
    the
Criminal Code
.

(1)

The standard for appellate intervention

[42]

An error in principle (the failure to consider a
    relevant factor or the erroneous consideration of an aggravating or mitigating
    factor) can justify our intervention, permit us to inquire into the fitness of
    the sentence, and replace it with a sentence we consider appropriate. But not
    in all cases. It is only where it appears from the sentencing judge's decision
    that an error of the nature described impacted the sentence imposed that we are
    permitted to intervene:
R. c. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R.
    1089, at paras. 43-44;
R. v. Friesen
, 2020 SCC 9, 444 D.L.R. (4th) 1,
    at para. 26.

[43]

We may not intervene simply because we would have
    weighed the relevant sentencing objectives, principles, or factors differently
    than the sentencing judge. Although we are disentitled from intervening simply
    because we would have located the sentence in a different range or category, we
    may do so if the sentence is demonstrably unfit:
Lacasse
, at paras. 49,
    51. A sentence is demonstrably unfit, even in the absence of error, if it is clearly
    unreasonable, clearly excessive or inadequate, or represents a substantial
    and marked departure":
Lacasse
, at paras. 51-52;
Friesen
,
    at para. 26.

[44]

If we conclude that a sentencing judge has made
    an error in principle that had an impact on sentence or has imposed a sentence
    that is demonstrably unfit, we must perform our own sentencing analysis to
    determine a fit sentence. In doing so, we must apply the applicable sentencing
    objectives, principles, and factors without deference to the existing sentence,
    even if that sentence falls within the applicable sentence range. However, at
    least to the extent that they are not affected by an error in principle, we
    must defer to the sentencing judge's findings of fact and identification of
    aggravating and mitigating factors:
Friesen
, at paras. 27-28.

(2)

The fundamental principle of sentencing

[45]

The genesis of all sentencing is the principle
    of proportionality. Sentences must be proportionate to the gravity of the offence
    and the degree of responsibility of the offender. This is the fundamental
    principle of sentencing now embodied in s. 718.1 of the
Criminal Code
:
Lacasse
, at para. 53;
Friesen
, at paras. 30-32.

(3)

The relationship of sentencing objectives and principles

[46]

The determination of whether a sentence is fit
    requires us to consider the sentencing objectives in s. 718 and the sentencing
    principles included in s. 718.2:
Lacasse
, at para. 54.

(4)

The effect of s. 718.01

[47]

By enacting s. 718.01, Parliament prioritized
    denunciation and deterrence for offences that involve abuse of children. The
    words primary consideration" prescribe a relative ordering of sentencing
    objectives, a feature that does not appear in their listing in s. 718. This
    ordering reflects Parliament's intention that sentences better reflect the
    seriousness of the offence":
Friesen
, at paras. 101-102.

[48]

The enactment of s. 718.01 also qualifies the
    previous direction of the Supreme Court that it falls to the sentencing judge
    to determine which sentencing objectives are to be prioritized. Section 718.01
    confines the sentencing judge's discretion from elevating other sentencing
    objectives to an equal or higher priority. However, the sentencing judge
    retains the discretion to assign significant weight to other factors, such as
    rehabilitation, in giving effect to the fundamental principle of
    proportionality:
Friesen
, at para. 104;
R. c. Rayo
, 2018 QCCA
    824, at paras. 103, 107 and 108.

(5)

The effect of an increase in the maximum sentence for failure to
    provide necessaries.

[49]

Maximum sentences determine the objective
    gravity of an offence by indicating its relative severity. Parliaments
    decision to increase the maximum sentence for a crime demonstrates its intention
    that the offence be punished more harshly. This shifts the distribution of
    proportionate sentences for the offence:
Lacasse
, at para. 7;
Friesen
,
    at paras. 96-97. To respect Parliament's decision to increase maximum
    sentences, courts should generally impose higher sentences than those imposed
    in cases that preceded the increase in the maximum sentence:
Friesen
,
    at para. 100.

(6)

The admissibility of fresh evidence

[50]

The traditional fresh evidence criteria apply
    when a party proffers fresh evidence on an appeal from sentence. The court must
    determine whether it thinks fit" to receive that evidence. The
    overarching principle is whether the court considers it in the interests of
    justice" to admit the evidence:
Lacasse
, at paras. 115-116.

[51]

Evidence of post-sentence breaches of a
    probation order, even if unrelated to the offence for which the sentence was
    imposed, may be relevant to a party's character, conduct, and attitude, and
    thus rehabilitative prospects:
Lacasse
, at paras.  118-120.

The Principles Applied

[52]

I would give effect to this ground of appeal.
    Neither the reasons, read as a whole, nor the sentence imposed, reveals
    fidelity to the mandate of s. 718.01 of the
Criminal Code
.

[53]

The enactment of s. 718.01 means that it is no
    longer open to a sentencing judge to elevate other sentencing objectives, for
    example rehabilitation, to equivalent or greater priority than denunciation and
    deterrence in determining a proportionate sentence. The sentencing judge did
    not have the benefit of the decision in
Friesen
that clarified the
    impact on her discretion to determine the priority of sentencing objectives.

[54]

The sentencing judge excerpted several sections
    of the
Criminal Code
under her heading of
Sentencing

Principles
    - Criminal Code

of Canada
. She remarked upon the need to send a
    message to those responsible for the care of vulnerable persons. The message
    was that they cannot just hide in plain sight, as Meredith did, nor collapse
    within oneself, as Meredith did, without calling out for help". This
    message fails to give effect to the primacy of denunciation and deterrence as
    sentencing objectives.

[55]

Parliaments choice to prioritize denunciation
    and deterrence as the sentencing objectives for offences involving the abuse of
    children reflects a reasoned response to the inherent wrongfulness of these offences,
    the enhanced moral blameworthiness, and the serious harm that these offences
    cause to the most vulnerable in our community. A sentence that expresses
    denunciation condemns the offender for encroaching on our societys basic code
    of values:
R. v. M. (C.A.)
, [1996] 1 S.C.R. 500, at para. 81. As an
    objective of sentencing, deterrence refers to the imposition of a sentence for
    the purpose of discouraging the offender and others from engaging in criminal
    conduct. When general deterrence is factored into the determination of a fit
    sentence, an offender is punished more severely. Not necessarily because she
    deserves it, but because the court decides to send a message to others who may
    be inclined to engage in similar criminal activity:
R. v. P. (B.W.)
,
    2006 SCC 27, [2006] 1 S.C.R. 941, at para. 2.

[56]

Further, it does not appear that the sentencing
    judge considered the impact of Parliaments decision to increase the maximum
    sentence for failure to provide the necessaries of life from two to five years.

[57]

Section 718.01 assigns primacy to the objectives
    of denunciation and deterrence when sentencing for an offence that involves
    the abuse of a person under the age of eighteen years". The term abuse"
    is not limited to sexual abuse, as in
Friesen
. No principled reason
    would exclude the offence of failing to provide the necessaries of life from
    its reach.

[58]

In the result, I am satisfied that the
    sentencing judge's failure to give effect to the mandatory terms of s. 718.01
    and the effect of Parliaments decision to increase the maximum sentence for
    the offence of failure to provide the necessaries of life had an impact on the
    sentence imposed and requires our intervention.

Ground #2: Alleged Error in Assessment of Mitigating
    Factors

[59]

The sentencing judge identified several
    mitigating factors. They included:

·

the absence of a criminal record;

·

a guilty plea;

·

the respondent's difficult life circumstances;

·

the respondent's participation in programming
    while in pre-detention custody;

·

the respondent's remorse and wishes to
    participate in counselling; and

·

the respondent's strong family and community
    support.

[60]

In a portion of her reasons headed
Other
    Factors
, the sentencing judge criticized the CAS for failing to visit the
    respondent's home every 30 days; allowing the respondent to cancel five
    consecutive visits; failing to appreciate that the cancelled visits were a sign
    that things were not going well for the respondent and K.L.; and failing to
    exercise its authority to apprehend K.L. and take her to a hospital for medical
    care if required.

The Arguments on Appeal

[61]

The Crown appellant says that the sentencing
    judge's errors in her consideration of the mitigating factors resulted in her
    failure to recognize the full extent of the respondent's moral culpability.
    This resulted in her assignment of greater weight to these factors than the
    predominant sentencing objectives required under s. 718.01.

[62]

The Crown, relying on
R. v. Naglik
, [1993]
    3 S.C.R. 122, contends that the failure of the CAS to fulfil its mandate is
    irrelevant to the moral culpability of the respondent. The offence of s. 215(2)
    measures the respondent's conduct against an objective standard. That another
    agency failed to fulfil its obligations does not mitigate the respondents
    culpability or lessen her moral blameworthiness.

[63]

Further, the appellant continues, the sentencing
    judge mischaracterized the respondent's parenting as a mitigating factor and
    attributed the death of the deceased to a brief collapse" when the
    respondent was overwhelmed. Neither could be of service in mitigation. Viewed
    overall, the respondent's parenting revealed a pattern of neglect. She
    delegated care of K.L. to  K.L.s siblings,  failed to take K.L. to her family
    doctor for 18 months, and never arranged for any visit to a pediatrician
    despite medical advice from her family doctor to do so. Nor did K.L. die from a
    brief period of inattention  she lost about one-third of her body weight over
    a period of five and one-half weeks.

[64]

The respondent rejects the appellant's claims of
    error. It was open to the sentencing judge to consider the entire course of
    events in making her findings of fact. This involves characterizing the overall
    nature of the respondent's parenting of K.L., as well as the nature of her
    failures. The findings made by the sentencing judge were available on the
    evidence and unencumbered by any error of law or principle or misapprehensions
    of the evidence. They are entitled to deference in this court.

[65]

According to the respondent, the appellant's
    references to
Naglik
, are misplaced.
Naglik
spoke to the
mens
    rea
for the failure to provide the necessaries of life, which is an
    objective standard. Nothing said about the nature of the fault element denies a
    place in sentencing to subjective or personal factors, even if they are not a
    defence to the charge.

[66]

The respondent also takes issue with the
    admissibility of the proposed fresh evidence about her post-sentencing breaches
    of her probation order and her drug overdose. The evidence is not relevant to
    demonstrate an error in the sentencing judge's assessment of the respondent's
    rehabilitative potential. This is all the more so when the appellant does not
    seek to have the respondent reincarcerated should the appeal succeed. What is
    offered as fresh evidence is at best an incomplete account. The allegations of
    breach of probation are the subject of separate proceedings and are best left
    to be resolved in trial form.

The Governing Principles

[67]

It is unnecessary to repeat what has already
    been said about the principles that govern our review of sentences alleged to
    be unfit. Four brief points will suffice.

[68]

First, erroneous consideration of an aggravating
    or mitigating factor can justify appellate intervention only where the error
    has an impact on the sentence ultimately imposed:
Lacasse
, at paras. 43-44.

[69]

Second, weighing or balancing factors can
    constitute an error in principle only if the sentencing judge exercises their
    discretion unreasonably by emphasizing one factor or not giving enough weight
    to another. If the error in principle had no impact on the sentence, the error
    in principle analysis terminates and appellate intervention is justified only if
    the sentence is demonstrably unfit:
Friesen
, at para. 26.

[70]

Third, in sentencing offenders convicted of failing
    to provide necessaries under s. 215(2), the duration of the failure is a factor
    warranting consideration in an assessment of the gravity of the offence and the
    moral blameworthiness of the offender:
R. v. Peterson
(2005)
, 203 O.A.C. 364, at para. 56,
    leave to appeal refused, [2005] S.C.C.A. No. 539.

[71]

Finally, fresh evidence of breaches of court
    orders is relevant to show an offender's lack of respect for those orders, and thereby
    the conduct, character, and attitude of the offender. All are relevant factors
    on sentence:
Lacasse
, at paras. 117-120.

The Principles Applied

[72]

I would also give effect to this ground of
    appeal. In my respectful view, the sentencing judge erred in considering the
    failures of the CAS as a factor in determining a fit sentence for the
    respondent.

[73]

As a parent, section 215 of the
Criminal
    Code
imposed a legal duty on the respondent to provide the necessaries of
    life to K.L., her child under the age of 16 years. She failed to discharge that
    duty. That the CAS also failed to live up to its mandate is beside the point
    for the purposes of the respondent's criminal liability. Likewise, in
    connection with the gravity of offence, her degree of responsibility and her
    moral blameworthiness.

[74]

In addition, the sentencing judge's
    characterization of the nature of the omissions of the CAS and the respondent
    lacks balance. It was the respondent, not the CAS, who cancelled the in-person
    visits claiming some or all of the members of her household were ill.
    Similarly, it was the respondent who did not take K.L. to her family doctor for
    18 months or to a pediatrician at all. Finally, it was the respondent who
    ignored her friend's advice to take K.L. to the hospital days before she died.

Ground #3: Alleged Error in Application of the Fundamental
    Principle of Proportionality

[75]

The sentencing judge set out the text of s.
    718.1  the fundamental principle of proportionality  in her reasons for
    sentence. She rejected the Crown's submission that a sentence of four years was
    appropriate on the ground that the respondent was not a worst-case offender
    even though the victim was the most fragile of victims". She also rejected
    the defence position that a sentence of 30 months, less credit for
    predisposition custody was fit, I find this position to be high in all the
    circumstances of this tragedy.

The Arguments on Appeal

[76]

The appellant Crown begins with a reminder that
    the fundamental principle of proportionality has two aspects  the gravity of
    the offence and the degree of responsibility of the offender. In both respects,
    the Crown contends, the sentencing judge erred.

[77]

The Crown submits that the sentencing judge
    failed to accord sufficient weight in her proportionality analysis to the
    gravity of the respondents offence. The offence involves an extremely
    vulnerable victim. Abuse of a person under 18 is deemed an aggravating
    circumstance under s. 718.2(a)(ii.1). Abuse of a position of trust is also an
    aggravating circumstance under s. 718.2(a)(ii). The failure involved the
    necessaries of food, water, and medical attention. The period during which the
    failure occurred was five and one-half weeks for food and water and about 18 months
    for medical attention. The offence had a significant impact on the victim  her
    death  another aggravating circumstance under s. 718.2 (a)(iii.1)

[78]

Similarly, the Crown continues, the sentencing
    judge failed to accord sufficient weight to the degree of the respondent's
    responsibility in her proportionality analysis. The respondent was the sole
    principal who committed an offence against a vulnerable victim to whom she
    stood in a position of trust. Aware that K.L. required constant care, the
    respondent chose on multiple occasions to do nothing. She failed to take K.L.
    to a doctor and to arrange for a specialist despite medical advice to do so.
    She abdicated her obligation to care for K.L. to her other children and
    friends. This was no momentary lapse or collapse" as the sentencing judge
    characterized it.

[79]

The respondent acknowledges that the sentencing
    judge could have imposed a lengthier custodial sentence than 17 months. That
    she failed to do so, however, does not mean that she erred in her application
    of the fundamental principle of proportionality. The sentence imposed falls
    within the applicable range of sentence, thus it cannot be said to constitute
    an error in principle. The sentencing judge considered the gravity of the
    respondent's offence, her degree of responsibility, and her moral
    blameworthiness. That another judge might have weighed them differently, as
    this court might have done, does not permit appellate intervention.

The Governing Principles

[80]

In addition to what has already been said about
    the principles that govern our review of the fitness of sentences imposed at
    trial, three brief points warrant mention.

(1)

The place
    of proportionality in the imposition and review of sentences

[81]

Section 718.1 codifies proportionality as the
    fundamental principle of sentencing. All sentencing starts with the principle
    that sentences must be proportionate to two elements:

·

the gravity of the offence; and

·

the degree of responsibility of the offender.

[82]

The related principle of parity, that similar
    offenders who commit similar offences in similar circumstances should receive
    similar sentences, is an expression of proportionality:
Friesen
, at paras.
    30-32.

(2)

The role of maximum sentences

[83]

Maximum sentences are linked to proportionality
    in that they help determine one of its essential components  the gravity of
    the offence. The gravity of the offence contains both subjective and objective
    components. Subjective gravity relates to the circumstances surrounding the
    commission of the offence. The maximum sentence Parliament designates for an
    offence determines the objective gravity, that is to say, the relative
    severity, of that offence. A decision by Parliament to increase the maximum
    sentence for an offence demonstrates Parliament's desire that an offence be
    punished more harshly. This shifts the distribution of proportionate sentences
    for that offence:
Friesen
, at paras. 96-97;
M. (C.A.)
, at para.
    36;
Lacasse
, at para. 7.

[84]

The final point relating to the role of maximum
    sentences is that the imposition of maximum sentences is not confined to cases
    involving worst offences committed by worst offenders. A maximum sentence is
    appropriate, but only appropriate, if the offence is of sufficient gravity and
    the offender displays sufficient blameworthiness:
R. v. Cheddesingh
,
    2004 SCC 16, [2004] 1 S.C.R. 433, at para. 1.

The Principles Applied

[85]

I would also give effect to this ground of
    appeal. In my respectful view, the sentence imposed does not give effect to the
    fundamental sentencing principle of proportionality.

[86]

The sentencing judge, who did not have the
    benefit of the reasons in
Friesen
, did not consider the increase in
    the maximum punishment of the offence of failure to provide the necessaries of
    life as an indication that higher punishments were required for this offence.
    Further, she appears to have diminished the subjective gravity of the offence
    by characterizing it as a momentary lapse under a confluence of unfortunate
    life events. Such a conclusion is not warranted upon a consideration of the
    evidence as a whole.

[87]

In a similar way, the sentencing judge diluted
    the degree of responsibility of the respondent by her reference to the
    inadequacies of the CAS in discharging its supervisory role.

Ground #4: A Demonstrably Unfit Sentence

[88]

The final ground of appeal alleges that the
    sentencing judge imposed a sentence that was demonstrably unfit.

The Reasons of the Sentencing Judge

[89]

Counsel on both sides took the position that a
    penitentiary sentence was warranted, though they differed about its length and
    the amount of enhanced credit that the respondent should receive for her
    pre-disposition custody.

[90]

The sentencing judge rejected the submissions of counsel on the
    basis that the respondent was not a worst-case offender" and that the
    defence position was high". She then said at para. 198,
Given that Meredith Lis has enhanced credit for pre-trial custody of 17
    months her sentence will be one of time-served. I have considered the totality
    principle of sentencing in my final decision.

The Arguments on Appeal

[91]

The Crown appellant says that a sentence of
    imprisonment of 17 months is a demonstrably unfit sentence for the respondent.
    A fit sentence required consideration of the intrinsic seriousness and harm caused
    by offences involving the abuse of children. This offence involved a protracted
    breach of trust in respect of an extremely vulnerable victim. Denunciation and
    deterrence were the primary sentencing objectives, not rehabilitation. A
    lengthy penitentiary sentence was required to give effect to Parliaments
    direction as expressed in the increase in the maximum sentence.

[92]

The Crown contends that the principles announced
    by this court in the sexual abuse cases of
R. v. D. (D.)
(2002), 58
    O.R. (3d) 788 (C.A.) and
R. v. Woodward
, 2011 ONCA 610, 107 O.R. (3d)
    81, should form part of a principled approach to sentencing in all cases of
    child neglect. This reflects a harm-based approach cognizant of the
    vulnerability of children, the high moral culpability of the offence, and of
    neglect as a form of child abuse requiring significant sanctions.

[93]

The respondent says that the sentence imposed is
    not demonstrably unfit. It falls within the range of sentence applicable in
    such cases. True, the sentencing judge could have imposed a sentence of greater
    length, but her failure to do so does not mean that the sentence imposed is
    demonstrably unfit. This sentence is not so clearly unreasonable or inadequate
    as to amount to a substantial and marked departure from the norm.

[94]

The respondent rejects the appellant's
    submission that the sentencing ranges prescribed in
D. (D.)
and
Woodward
for cases involving the sexual abuse of children should inform the range of
    sentence applicable in prosecutions for failure to provide necessaries of life
    to children of equivalent age. These are non-comparables for sentencing
    purposes. Some sexual offences carry a statutory minimum and maximum sentence
    that exceeds that applicable for failure to provide necessaries of life. What
    is more, the teachings of
Friesen
are limited to sexual offences.

The Governing Principles

[95]

A sentence may be demonstrably unfit even if the
    sentencing judge has made no error in imposing it. The sentence is demonstrably
    unfit if it is clearly unreasonable, clearly inadequate, or because it
    represents a substantial and marked departure". This reflects a very high
    threshold to meet before an appellate court can intervene after reviewing the
    fitness of a sentence:
Lacasse
, at para. 52.

[96]

The inquiry involved when a sentence is
    demonstrably unfit must focus on the fundamental principle of sentencing  proportionality
     codified in s. 718.1. A sentence is demonstrably unfit if it constitutes an
    unreasonable departure from this principle. Proportionality is determined not
    only on an individual basis, that is to say, in relation to the individual
    accused and her offence, but also by comparison with sentences imposed for
    similar offences committed by similar offenders in similar circumstances:
Lacasse
,
    at para. 53.

[97]

A determination of fitness also requires that we
    consider the sentencing objectives of s. 718 and the other principles and
    factors set out in Part XXIII:
Lacasse
, at para. 54.

The Principles Applied

[98]

In my respectful view, the sentence imposed in
    this case was demonstrably unfit. It represented a substantial and marked
    departure from the fundamental principle of proportionality.

[99]

This sentence fails to respect the primacy of
    the sentencing objectives of denunciation and deterrence as required by s.
    718.01 of the
Criminal Code
. It elevates the objective of
    rehabilitation to a place of prominence that is unwarranted, not only because
    of the mandate of s. 718.01, but also on a consideration of the evidence as a
    whole, including the fresh evidence. This offence was no momentary lapse in
    judgment, rather it extended over several weeks in connection with food and
    water and months for medical attention. The sentence also failed to reflect the
    consequences of the increased maximum punishment enacted by Parliament.

Conclusion

[100]

In my respectful view, a fit sentence in the circumstances of the offence
    and the offender is three to three and one-half years in a penitentiary.
    Retaining the credit of 17 months for pre-disposition custody, this would leave
    a
remanet
of between 19 and 25 months.

Disposition

[101]

For these reasons, I would grant leave to appeal, allow the appeal,
    and set aside the custodial portion of the sentence imposed at trial. In place
    of the one day sentence imposed by the sentencing judge, I would impose a
    sentence of three years in a penitentiary on the count of failure to provide
    necessaries of life. From that sentence, I would deduct 17 months as credit for
    pre-disposition custody. This leaves a custodial
remanet
of 19 months.
    The Crown asks us not to reincarcerate the respondent. I would stay the
    execution of the 19 month
remanet
of the sentence. The probation
    order, ancillary orders imposed by the sentencing judge, and the concurrent
    sentences of one day on each of the remaining counts remain in force.

Released: September 3, 2020

D.W.

David Watt J.A.

I agree Harvison Young J.A.

I agree S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. MacLeod, 2020 ONCA 596

DATE: 20200922

DOCKET: C64970

Fairburn A.C.J.O., MacPherson
    and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cheryl MacLeod

Appellant

Cheryl MacLeod, acting in person

Amy Ohler, appearing as duty counsel

Michael Fawcett, for the respondent

Heard: September 9, 2020 via
    videoconference

On appeal from the conviction entered by
    Justice Braid of the Superior Court of Justice, dated October 30, 2017, and the
    sentence imposed on April 3, 2018.

REASONS FOR DECISION

[1]

The appellant was convicted of a number of
    counts of fraud over $5000, fraud under $5000, and utter a forged document. She
    received a three-year custodial sentence. This is an appeal from conviction and
    sentence.

[2]

The appellant owned and directed CTC Payroll
    Services Inc. (CTC). CTC would withdraw funds from its clients bank accounts.
    The funds would be held in trust until such time as they could be paid out to
    the clients employees for wages earned or remitted as payment for, among other
    things, taxes owing. CTC was to keep a small fee for services rendered.

[3]

The trial judge found that the appellant fraudulently
    withdrew more money from her clients accounts than she was authorized to take,
    failed to perform the services she was supposed to perform, and used a good
    deal of her clients money for her own personal purposes. Indeed, a documentary
    record demonstrates that the CTC trust account was used to make personal
    purchases for the appellant. The fraud resulted in actual losses of over
    $350,000 to the appellants clients.

[4]

The appellant testified at trial, providing her explanation
    as to why over-deductions had been made. She also pointed the finger at a past
    employee, suggesting that the employee was responsible for the missing funds.

[5]

In lengthy reasons for judgment, the trial judge
    explained why she outright rejected the appellants evidence, concluding that
    it defied common sense and directly conflicted with the documentary evidence
    that demonstrated the fraudulent trail. As the trial judge noted, the
    appellants evidence also conflicted with the other
viva voce
evidence
    at trial, which evidence the trial judge gave reasons for accepting as
    credible. These credibility findings are owed deference on appeal.

[6]

The appellant argues that the trial judge erred
    in numerous respects.

[7]

First, the appellant maintains that the trial
    judge applied a stricter standard of scrutiny to her evidence than that of the
    Crowns witnesses. We do not agree. The reasons for judgment suggest no
    imbalance. The trial judge explained all of her credibility findings, most of
    which rest on a documentary foundation.

[8]

Second, the appellant argues that her mode of
    trial was changed unilaterally by her counsel and that she did not give any
    instructions in that regard. In particular, during oral submissions, the
    appellant raised that her trial counsel had changed the mode of trial from a
    jury to a judge alone trial without any consultation. In the written materials
    filed on appeal, the appellant also suggests that the she did not know that her
    counsel would concede committal at the preliminary inquiry, using it instead
    for discovery purposes.

[9]

We have no credible evidence on appeal that
    supports the claim that, without instructions, the appellants trial counsel
    changed her mode of trial from a jury to a judge alone trial. As for the
    concession on committal, contained in the extensive fresh evidence record on
    appeal is the appellants trial counsels denial that he consented to committal
    without having first consulted with the appellant. We accept his evidence on
    this point. He discussed this very issue with the appellant and explained to
    her the very low threshold for committal. He also explained that there was no
    realistic basis to argue against committal. Having regard to the strength of
    the Crowns case, that was an entirely reasonable position and one that we find
    the appellant was alive to. We accept trial counsels evidence in this regard
    and see no merit to this ground of appeal.

[10]

Third, the appellant claims for the first time on
    appeal that her s. 11(b)
Charter

rights were infringed. She says that her
    trial counsel was incompetent in failing to bring an application for a stay of
    proceedings arising from unreasonable delay. While the total time from charge
    to the end of trial is above the 30-month ceiling, this case was in the system
    long before
R. v. Jordan
,
2016 SCC 27 was released. Accordingly,
    this was a transitional case.

[11]

The record in this case does not support the
    suggestion of unreasonable delay, especially given the transitional zone within
    which the case sits. The appellant accepts that a period of time would be
    calculated as defence delay under
Jordan
.
That amount of time
    is not clear on the record. In any event, given that this is a transitional
    case, the lack of a record upon which the allegation of delay rests, the nature
    of the prosecution and complexities involved, and the lack of any record
    suggesting prejudice, there is no traction in this ground of appeal.

[12]

Fourth, the appellant maintains that there has
    been improper non-disclosure in this case. We do not give effect to this ground
    of appeal.

[13]

It is true that the trial Crown did not disclose
    a body of bank records at trial. Those records have now been disclosed on
    appeal. While the Crown has a duty to disclose all relevant, non-privileged
    information in its possession or control, a conviction will not be set aside on
    appeal because of a failure to disclose unless there has been a breach of the
    right to make full answer and defence. This requires the appellant to
    demonstrate that there is a reasonable possibility that the non-disclosed
    information affected the outcome at trial or the overall fairness of the trial
    process:
R. v. Dixon
, [1998] 1 S.C.R. 244 at para. 34
.
This
    threshold test has not been met for the following reasons:

(a)
the trial Crown disclosed the fact that the records existed well in
    advance of trial;

(b)
the trial Crown made the records available to the defence should
    they wish to see them;

(c)
the defence did see them;

(d)
no disclosure application was brought;

(e) the appellant repeatedly told her counsel
    that she did not need to review those records and discouraged him from doing
    so; and

(f) the appellant has now been in possession
    of the records for almost a year and points to nothing in them of an
    exculpatory nature, nor anything that could have impacted on her defence.

[14]

In short, even if the records should have been
    physically placed in the appellants hands prior to trial, there is no
    reasonable possibility that they would have impacted the outcome of the trial.
    Nor was the fairness of the proceedings adversely impacted by the Crown
    proceeding as it did:
Dixon
, at paras. 34-39;
R. v. Pascal
, 2020
    ONCA 287 at para. 136.

[15]

Fifth, the appellant argues that her trial
    counsel provided ineffective assistance. There is a strong presumption in
    favour of counsels competence. In order to succeed on this ground of appeal,
    the appellant must show that counsels conduct fell outside of the wide range
    of what constitutes reasonable professional assistance and that it resulted in
    a miscarriage of justice:
R. v. Joanisse
, [1995] O.J. No. 2883 (C.A.)
at paras. 69-81;
R. v.
    Stark
, 2017 ONCA 148 at paras. 10-15.

[16]

Having regard to the entire record in this case,
    including the fresh evidence on appeal, we see nothing to suggest that counsel
    fell outside of the range of expected reasonable professional assistance.
    Moreover, this was a strong Crown case that was proven largely on the back of documentary
    evidence. It cannot be said that there has been a miscarriage of justice.

[17]

The appellant was sentenced to three years in
    custody. She seeks leave to appeal sentence on the basis that this is a
    demonstrably unfit sentence. She argues that she should have received a conditional
    sentence. We do not agree.

[18]

The appellants fraud involves a serious breach
    of trust with over $350,000 in actual losses to her clients. The fraud occurred
    over a long period of time.

[19]

The trial judges reasons are balanced. She had
    regard to all aggravating and mitigating factors. We would defer to the trial
    judges determination on sentence:
R. v.
Friesen
, 2020 SCC 9 at
    paras. 25-29.

[20]

While the appellant raises some recent and
    serious health issues she and her spouse have been experiencing, this is a matter
    that falls within the responsibility of the custodial authorities.

[21]

The appellant also challenges the restitution
    order on the basis that it is excessive and futile, requiring her to pay
    money that was stolen by her employee. We agree with the respondent that this
    argument rests on an attempt to relitigate the conviction appeal. Again, the
    trial judge explained her credibility findings, specifically rejecting the appellants
    evidence on this point. This ground of appeal must also fail.

[22]

The conviction appeal is dismissed. Leave
    to appeal sentence is granted, but the sentence appeal is dismissed, except to
    the extent of setting aside the victim fine surcharge.

Fairburn
    A.C.J.O.

J.C.
    MacPherson J.A.

S.
    Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mansour, 2020 ONCA 586

DATE: 20200918

DOCKET: M50725 (C68451)

Feldman, van Rensburg and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Mansour

Applicant

Jon Doody and Anthony Paciocco, for the
    applicant

Tracy Kozlowski, for the respondent

Heard: July 17, 2020 by video
    conference

On appeal from the order of Justice Michelle
    OBonsawin of the Superior Court of Justice, dated July 12, 2019, with reasons
    reported at 2019 ONSC 4150, allowing an appeal from the stay of proceedings
    entered on December 7, 2018 by Justice Célynne S. Dorval of the Ontario Court
    of Justice.

REASONS FOR DECISION

[1]

The applicant was charged with drug-impaired
    driving in October 2016. In December 2018, the trial judge held that his right
    to be tried within a reasonable time under s. 11(b) of the
Canadian Charter
    of Rights and Freedoms
had been infringed and stayed the proceedings. The
    Crown appealed. The summary conviction appeal judge allowed the Crowns appeal,
    set aside the stay of proceedings, and ordered a new trial.

[2]

The applicant now seeks leave to appeal to this
    court. With the consent of the parties, given that trial dates are set in this
    matter for October 2020, the panel heard the arguments on leave and the merits
    of the appeal together. For the following reasons, the application for leave to
    appeal is dismissed. Accordingly, we do not reach the merits of the appeal.

A.

Procedural History

[3]

The first few months after the applicant was
    charged with drug-impaired driving in October 2016, were taken up with the
    applicants requests for disclosure.

[4]

In February 2017, the applicants trial counsel
    was appointed to the bench. In a court appearance on February 22, 2017, the applicants
    counsels agent requested an adjournment to review disclosure and reassign the
    file to other counsel.

[5]

At the next court appearance on March 1, 2017,
    the Crown suggested that trial dates should be set. The court offered March 7,
    2017, for the judicial pre-trial, but counsels agent asked for a later date,
    to allow new counsel to get up to speed on the file. The judicial pre-trial
    took place on March 21, 2017.

[6]

Trial dates were then set for May 7 and 8, 2018.
    The applicant was unavailable for April 2018 dates that were offered by the
    court. In December 2017, the Crown brought an application to set earlier trial
    dates, but the applicant was unavailable for February and March 2018 dates then
    offered by the court.

[7]

On October 23, 2017, the applicant had asked for
    disclosure of the drug recognition experts rolling logs (DRE logs). DRE logs
    contain a record of every evaluation the DRE has been involved in before or
    after becoming certified as an expert. The Crown refused to disclose the DRE
    logs, arguing that they were not relevant and that their disclosure was
    prohibited by s. 258.1 of the
Criminal Code
, R.S.C. 1985, c. C-46
    (which has since been repealed) and would amount to a criminal offence.

[8]

The applicant brought a motion for disclosure of
    the DRE logs by the Crown and the Ottawa Police Service, which was heard on
    April 19, 2018. On April 30, 2018, the trial judge ordered the disclosure.

[9]

On May 7, 2018, the day the trial was scheduled
    to begin, the Crown advised the applicant that it intended to challenge the
    disclosure order by bringing an application for
certiorari
. The Crown
    refused to disclose the DRE logs at the same time as bringing the
certiorari
application, given its position that doing so was prohibited by the
Code
.

[10]

The Crowns
certiorari
application was
    heard in May and July 2018. The
certiorari
judge took the decision
    under reserve.

[11]

In the meantime, the applicant applied to the
    trial judge for a stay of proceedings, alleging that his right to be tried
    within a reasonable time had been infringed because the delay exceeded the
    18-month presumptive ceiling prescribed in
R. v. Jordan
, 2016 SCC 27,
    [2016] 1 S.C.R. 631. The trial judge refused to hear the s. 11(b) application
    in September 2018 because the
certiorari
decision was outstanding. The
    application was adjourned to October 19, 2018. New trial dates were set for
    November 13 and 14, 2018.

[12]

On October 11, 2018, the
certiorari
judge dismissed the Crowns application for
certiorari
, upholding the
    disclosure order. The Crown served a notice of appeal of the
certiorari
decision on November 5, 2018 and refused to disclose the DRE logs to the applicant
    pending the appeal, for the same reasons outlined above. The Ottawa Police
    Service likewise appealed.

[13]

Through inadvertent error, the s. 11(b)
    application did not proceed on October 19, 2018, but was instead adjourned to
    November 13, 2018, the first scheduled day of trial.

[14]

The trial judge heard the s. 11(b) application
    on November 13, 2018, and on December 7, 2018, granted the application and
    stayed the proceedings.

[15]

The Crown appealed. Before the appeal was heard,
    this court released its decisions in
R. v. Stipo
, 2019 ONCA 3, 144
    O.R. (3d) 145, and
R. v. Tsega
, 2019 ONCA 111, 144 O.R. (3d) 561. In
Stipo
,
    this court held that DRE logs are relevant and should be disclosed by the
    Crown, thereby resolving the disclosure dispute in this case in the applicants
    favour. In
Tsega
, this court provided guidance on the proper treatment
    of delay caused by applications for extraordinary remedies, including
certiorari
.

[16]

The summary conviction appeal judge had the
    benefit of both these decisions in assessing how to treat the
certiorari
delay here, which comprised the bulk of the overall delay. The summary
    conviction appeal judge allowed the Crowns appeal, set aside the stay of
    proceedings, and remitted the matter back to the Ontario Court of Justice for
    trial.

B.

Discussion

[17]

The test for leave to appeal in summary
    conviction proceedings is set out in in
R. v. R.(R.)

(2008), 90
    O.R. (3d) 641, at para. 32:

Leave to appeal may be granted where the
    merits of the proposed question of law are arguable, even if not strong, and
    the proposed question of law has significance to the administration of justice
    beyond the four corners of the case. Leave to appeal may also be granted where
    there appears to be a clear error even if it cannot be said that the error
    has significance to the administration of justice beyond the specific case.

[18]

The applicant asserts that the summary
    conviction appeal judge erred in calculating delay in three ways:

1.
By deducting the time for the Crowns
certiorari
application regarding the disclosure of the DRE logs;

2.
By using November 14, 2018 as the end-date for trial; and

3.
By increasing by ten days the period of defence delay to
    accommodate a change in counsel when his first lawyer was appointed to the
    bench.

[19]

All three issues are case-specific and do not
    have significance to the administration of justice beyond the four corners of
    this case. With respect to issue (1), we see no error in the summary conviction
    appeal judges application of the rule in
Tsega
for determining how to
    treat
certiorari
delay. Nor do we accept that there was a clear
    error in the calculation of delay for issues (2) and (3).

(1)

Certiorari
Delay

[20]

First, we address the summary conviction appeal
    judges treatment of the delay caused by the Crowns
certiorari
application and appeal of that ruling. The trial judge considered this issue
    before this courts decision in
Tsega
was released in February 2019.
    She included the
certiorari
delay within the overall calculation of
    delay on the basis that the applicant remained charged during that period and
    was entitled to his s. 11(b) right. She went on to find that in the event she
    was in error, the
certiorari
delay was not an exceptional
    circumstance. She viewed the Crowns decision to pursue the
certiorari
remedy when the issue was soon to be resolved by this court in
Stipo
as a tactical or policy decision taken without considering the applicants
    right to a trial within a reasonable time, and that it went beyond mere
    complacency towards delay.

[21]

By contrast, the summary conviction appeal judge
    had the benefit of this courts decision in
Tsega
, which set out at
    para. 82 the test for determining whether
certiorari
delay should be
    counted in the overall delay or excluded as an exceptional circumstance:

[I]n determining whether delay caused by a
    Crown application should be excluded from the delay calculation, the reviewing
    judge must recognize the Crowns discretion to take such steps and limit the
    analysis to a consideration of whether the Crowns actions were frivolous,
    undertaken in bad faith, or executed in a dilatory manner. A frivolous
    application is one which has no arguable basis. Again, by conducting the
    analysis on this basis, the court is fulfilling its
Jordan
imposed
    obligation of ensuring that all justice participants are acting responsibly and
    ensuring that the accuseds right to be tried within a reasonable time is
    respected.

[22]

The summary conviction appeal judge had also
    previously heard and dismissed the Crowns
certiorari
application in
    this case. She concluded, at paras. 23-24 that:

In this matter, there is no evidence to
    support a finding that the Crowns actions were frivolous, undertaken in bad
    faith, or executed in a dilatory manner. I agree with the Crowns argument that
    the consequence of compliance with these orders, if it was in error, was a
    commission of a criminal offence contrary to s. 258.1(5) of the
Code
.
    The third party [Ottawa Police Service] also sought a review which led to a
    delay which was inevitable regardless of the Crowns position.

The Crown was unsuccessful in the
certiorari

proceedings. However, the question to be considered is not whether the
    Crown was successful in its
certiorari

proceedings, but rather
    whether it was reasonable for the Crown to pursue this remedy. At this period
    of time,
Stipo

had been argued before the Court of Appeal but a
    decision had not yet been rendered. The court only issued its reasons in
Stipo

on January 7, 2019. Overall, I find the Crowns actions were reasonable and
    they were neither frivolous, undertaken in bad faith, nor executed in a
    dilatory manner.

[23]

On this application for leave to appeal, the
    applicant raises three proposed questions of law with respect to the
certiorari
delay: whether the Crown could have provided the logs and pursued its
certiorari
application at the same time; whether the delay was inevitable when a third
    party state actor was also challenging the production of the logs as third
    party records; and whether the Crown was acting in a dilatory manner.

[24]

We see no error of law committed by the summary
    conviction appeal judge. She was fully aware of the facts and the arguments and
    applied the
Tsega
criteria directly. Even if there is a question of
    law raised here, it is not of significance beyond this case.

[25]

Finally, the applicant challenges the
    determination by the summary conviction appeal judge that the entire period of
    192 days from the date the Crown advised that it would pursue a
certiorari
application (May 7, 2018) to the end-date of trial (November 14, 2018) should
    be deducted. He argues that the time should only run from the actual date of
    the application (May 9, 2018) to the date of the
certiorari
decision
    (October 11, 2018), and from November 5, 2018 (the day the Crown appealed the
certiorari
decision) to November 14, 2018.

[26]

This issue again does not warrant granting leave
    to appeal. It has no significance beyond this case, and we are not persuaded
    that the summary conviction appeal judges calculation of the
certiorari
-related
    delay reveals any clear error of law. During the whole period, the
certiorari
proceedings were still ongoing, the Crown was still refusing to disclose, and
    the matter could not have moved forward for those reasons. This was reasonably
    calculated as the time taken for extraordinary remedies and appeals therefrom;
Tsega
, at paras. 77,79.

(2)

End-Date of Trial

[27]

Second, we address the issue of the anticipated
    end-date of trial. The submission is that the summary conviction appeal judge
    erred in identifying November 14, 2018 as the end-date for the purpose of
    calculating the overall delay because that date was not the actual or
    anticipated end of trial:
Jordan
, at para. 49. The trial did not
    end on this date, and neither of the parties anticipated that it would.

[28]

There is no clear error here. Both before the
    trial judge and the summary conviction appeal judge, the applicant relied on
    November 13, 2018 as the applicable end-date, arguing that the delay as of that
    point was unreasonable.

[29]

The applicants trial was scheduled to take
    place on November 13 and 14, 2018. The trial did not proceed on November 13 and
    14, 2018 because of the continuing dispute about the Crowns obligation to
    disclose the DRE logs. By November 13 and 14, 2018, this disclosure was outstanding.
    The applicant was unwilling to proceed to trial without the DRE logs, and the
    trial judge declined to force the applicant to do so. Instead, on November 13,
    2018, the parties made oral submissions on the s. 11(b) application.

[30]

The trial judge used February 4 and 5, 2019 as
    the end-dates in calculating the overall delay. She incorrectly assumed that
    the trial had been scheduled for February 2019. The applicants position was
    that the ceiling had been breached as of the date of argument of the s. 11(b)
    application. November 13, 2018. Counsel used that date as the end-date for the
    purpose of calculating the overall delay, arguing that, although November 13,
    2018 was clearly not the end of the trial  thats the date were going to
    work with.

[31]

On appeal, the applicant flagged for the summary
    conviction appeal judge that the trial judge had erred in relying on February 4
    and 5, 2019 in calculating the overall delay. The summary conviction appeal
    judge selected November 14, 2018 as the anticipated end of trial, noting, at
    para. 13, the applicants concession that the trial judge erred by listing the
    anticipated trial dates as February 4 and 5, 2019, while the actual trial dates
    were set for November 13 and 14, 2018.

[32]

The appropriate end-date was not argued before
    the summary conviction appeal judge in oral submissions. In written
    submissions, the applicant again relied on November 13, 2018 as the end-date
    for the purpose of the overall delay calculation.

[33]

Throughout the litigation below, the parties
    accepted that the appropriate end-date for the purpose of calculating the
    overall delay was November 13, 2018, and while the applicant observed that the
    trial did not in fact end in November 2018, counsel did not argue that the
    summary conviction appeal judge should rely on any other date.

[34]

Moreover, we note that the applicant has not
    proposed any other date that this court should rely on as the end-date for the
    purpose of calculating the overall delay (other than to suggest before this
    court a Crown-friendly estimate of adding an additional 30 days of delay).

[35]

The absence of any identifiable end-date for the
    trial in this case reflects the fact that the applicant chose to proceed with
    his s. 11(b) application at a time when the procedural future of the matter was
    uncertain, because the Crowns
certiorari
appeal was pending. The
    applicant argued that the delay was already unreasonable as of the date of the
    application. Given the applicants position before the trial judge and the
    summary conviction appeal judge, and the complex procedural history of the
    matter, it would not have been appropriate for the summary conviction appeal
    judge, and is not appropriate for this court, to speculate when the applicants
    trial might have concluded had the charge not been stayed.

[36]

In these circumstances, given the positions of
    the parties before the trial judge and the summary conviction appeal judge, the
    summary conviction appeal judge did not make a clear error in relying on
    November 14, 2018, as the end‑date for the purpose of calculating delay.

(3)

Delay Occasioned by the Appointment of Counsel

[37]

It is unnecessary to address the merits of the
    applicants next argument, that the summary conviction appeal judge erred by
    disturbing the trial judges quantification of delay for when new counsel came
    on board (increasing the delay from 14 to 24 days). Standing alone, this
    ten-day period is insufficient to affect the result. Given our conclusion that
    leave should not be granted on the
certiorari
and end-date issues,
    even if the summary conviction appeal judge erred in interfering with the trial
    judges characterization of these ten days, that would not affect the result.
    The summary conviction appeal judge identified 515 days of net delay. The
    applicant argues for a stay only on the basis that the delay exceeded the
    presumptive ceiling of 18 months (which is 547 days). Adding ten days to the
    net delay would not put this matter over the ceiling.

C.

Disposition

[38]

For these reasons, the application for leave to
    appeal is dismissed.

K. Feldman
    J.A

K. van
    Rensburg J.A.

J.A. Thorburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marong, 2020 ONCA 598

DATE: 20200922

DOCKET: C67406

Fairburn
    A.C.J.O., MacPherson and Coroza JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Malamin Marong

Appellant

Malamin Marong, acting in person

Amy Ohler, appearing as duty counsel

Scott Wheildon, for the respondent

Heard: September 9, 2020 by
    video conference

On appeal from the convictions entered by
    Justice Ramez Khawly of the Ontario Court of Justice, dated June 21, 2019, and
    from the sentence imposed on August 15, 2019.

REASONS FOR DECISION

[1]

At the conclusion of the oral hearing we
    dismissed the appellants appeal of his convictions for firearm offences but
    allowed his sentence appeal with reasons to follow. These are our reasons.

[2]

After a trial in the Ontario Court of Justice,
    the appellant was convicted of a number of offences related to his possession
    of a firearm and a single count of possession of cocaine.

[3]

The defence called one witness at trial, Adam Dacosta
    Silva. Dacosta Silva, a drug dealer, sold cocaine on several occasions to an
    undercover police officer. The police attempted to identify Dacosta Silvas
    supplier. On June 19, 2018, the appellant was observed by the police driving Dacosta
    Silva to a drug deal. Dacosta Silva got out of the car and completed the sale
    to the undercover police officer. The appellant drove away. Shortly after the
    sale, Dacosta Silva was arrested. The appellant was followed by the police and
    arrested in the car. The police searched the car and discovered a loaded
    firearm in the middle console of the car, drug paraphernalia and cocaine.

[4]

At trial, Dacosta Silva testified that the
    firearm was his and that he had left it in the car without the appellant's
    knowledge. The trial judge rejected this testimony. In doing so, the trial
    judge observed that it was highly implausible that Dacosta Silva would leave a
    gun in the car without the appellants knowledge and that Dacosta Silva was
    motivated to lie about the appellants possession of the gun because he did not
    want to be labeled as a rat by the criminal subculture. The trial judge also
    noted that the gun was found in the console and the appellant was the only
    occupant in the car when it was stopped by the police. He found that the
    appellant was in possession of the firearm and found him guilty of the firearm
    offences. He also found the appellant guilty of possession of cocaine.

[5]

The trial judge imposed a global sentence of 48
    months. He granted the appellant credit for pre-trial custody on a 1.5 to 1
    basis of 21 months, leaving 27 months left to serve on his sentence.

[6]

With the assistance of duty counsel, the
    appellant appeals his convictions for the firearm offences and his sentence.

The Conviction Appeal

[7]

The appellant argues that the trial judge erred
    in his credibility assessment of Dacosta Silva. The appellants primary
    argument is that the trial judge reasoned from stereotypes about how criminals
    behave to find that Dacosta Silva was motivated to lie in his testimony, and to
    ultimately reject Dacosta Silvas evidence. The appellant also claims that the
    trial judge misapprehended the entirety of the evidence, by failing to consider
    evidence that corroborated Dacosta Silvas version of events.

[8]

We do not accept the appellants arguments, nor
    do we see any basis to interfere with the trial judges credibility assessment
    of Dacosta Silva. Credibility assessments attract a very high degree of deference
    on appeal and in our view, it was open to the trial judge to find that Dacosta
    Silva was motivated to provide evidence favourable to the appellant. In any
    event, Dacosta Silvas motivation was only one of the reasons that the trial
    judge gave for rejecting his evidence about the gun. The trial judge also noted
    that Dacosta Silva skirted too much in his testimony and had no answer to a
    question about how he was going to retrieve the gun after leaving it in the
    car.

[9]

On the trial judges findings, the gun was in
    the middle console and the appellant was the only occupant of the car. We would
    not interfere with the trial judges conclusion that the only reasonable
    inference on the evidence was that the appellant was in possession of the firearm
    in the car.

The Sentence Appeal

[10]

The appellant argues that the judge erred in not
    granting him any credit for harsh presentence conditions of custody:
R. v.
    Duncan
, 2016 ONCA 754. In
Duncan
, this court held that in
    appropriate circumstances, an offender can be granted credit for particularly
    harsh presentence incarceration conditions apart from the credit set out in s. 719(3.1)
    of the
Criminal Code
, R.S.C. 1985, c. C-46. The appellant argues that
    the appropriate credit in this case for the lockdowns is about 75 days credit.

[11]

During the sentencing hearing, defence counsel
    submitted that the appellant was subjected to lockdown between 111 to 152 days
    while in presentence custody. Counsel submitted that the lockdowns meant that
    the appellant was prohibited from leaving his cell for fresh air and was
    required to eat his meals in areas that were also bathrooms. The appellant
    sought credit of three months to reflect the harshness of his presentence
    custody. The Crown did not dispute that the appellant was subjected to about
    111 days of lockdown, nor did it dispute the description of the conditions of
    those lockdowns. However, the Crown submitted that
Duncan
credit of only
    two months should be given.

[12]

In his reasons for sentence, the sentencing
    judge stated that Lockdown or no lockdown he chose to do the crime and he did
    not grant credit for the conditions of the lockdown.

[13]

In
Duncan
, at para. 6, this court held
    that in considering whether any enhanced credit should be given, a sentencing
    judge will consider both the conditions of the presentence incarceration and
    the impact of those conditions on the accused. Although the granting of credit
    for particularly harsh presentence conditions is discretionary, we agree with
    the appellant that the trial judge erred by not explaining why he refused to
    grant credit. There was no dispute by the parties during their sentencing
    submissions that the appellant had experienced harsh conditions in the form of
    lockdowns and that enhanced credit should be given. In the unusual circumstances
    of this case, and particularly bearing in mind the agreement of the parties at
    trial, we agree with the appellant that
Duncan
credit should have been
    given. We agree with the appellant that 75 days should be credited towards the
    sentence to reflect the harness of the appellants presentence custody.

Conclusion

[14]

The appeal from conviction is dismissed. Leave
    to appeal sentence is granted. We allow the sentence appeal to the extent of
    granting 75 days additional credit to the sentence currently being served. For
    clarity, the global sentence is one of 48 months less credit for 21 months
    pre-trial custody and 75 days for presentence custody conditions. Otherwise, we
    would not interfere with the sentence.

Fairburn
    A.C.J.O.

J.C.
    MacPherson J.A.

S.
    Coroza J.A.