R v Reddick, 2020 ONCA 786

Appeal dismissed. There is no error on the sentencing judge’s imposed sentence of an Indigenous offender who committed a robbery with an imitation firearm. Gladue principles was given appropriate consideration, along with hardships arising from the Covid-19 pandemic related lockdowns in determining a fit sentence.

Indigenous Law Centre – CaseWatch Blog

Mr. Chad Reddick entered a guilty plea to robbery and using an imitation firearm while committing an indictable offence. This was an extremely serious offence committed by a 33-year-old man with a significant, albeit largely non-violent, criminal record. The sentencing judge imposed a two-year sentence for the robbery, to be followed by the one-year mandatory minimum sentence for the firearm offence. The sentencing judge also granted the Crown a 12-month non-reporting probation order.

Mr. Reddick appeals the sentence imposed, claiming that the sentencing judge erred in applying Gladue principles and failed to pay attention to the sentencing objective of rehabilitation. He argued that there has been a change in the law that makes a conditional sentence possible for the robbery conviction, and that there has been a high frequency of lockdowns Mr. Reddick has experienced related to the Covid-19 pandemic since the sentence was imposed (R v Sharma, 2020 ONCA 478 [“Sharma”]).

Mr. Reddick is remorseful and has commited to change, however, his appeal is dismissed. Despite the fact that Aboriginal Legal Services declined to provide a Gladue report because he and his family members lacked specific information about his Aboriginal ancestry, the sentencing judge accepted that Mr. Reddick was Indigenous and drew on relevant information in the presentence report in order to comply with s 718.2(e). She applied the Gladue principles appropriately and sensitively, as well as considered rehabilitation.

Even if this Court was to accept that after the Sharma decision a conditional sentence may be imposed on a robbery conviction where a weapon is involved, there is no error by the sentencing judge that would permit resentencing Mr. Reddick using this “new” sentencing tool. As well, pursuant to s 742.1 of the Criminal Code, a conditional sentence cannot be imposed unless the accused is being sentenced to less than two years of imprisonment. The trial judge determined that the least restrictive sentence she could impose was two years. Despite hardship arising from lockdowns which can qualify as a collateral consequence that warrants consideration during sentencing (R v Morgan, 2020 ONCA 279), the sentencing judge already took the current Covid-19 pandemic into account on the hardship of the sentence imposed. The Court is not satisfied on the evidence that circumstances have changed to the point where additional credit should be given.

R v Campbell, 2020 NUCJ 28

The fact that programming is on hold during the pandemic is taken into account with sentencing in two ways: 1) in determining how much credit to allocate based on pre-trial custody; and 2) in assessing a fit term for a prison sentence, as collateral consequences of any period of incarceration that would make it harsher.

Indigenous Law Centre – CaseWatch Blog

In Nunavut, and elsewhere, it seems like most Indigenous programming in prison has been put on hold for months, including the examples of Elder counselling and family visits. Mr. Campbell plead guilty to a string of charges all committed in Iqaluit. A Pre-Sentence Report was ordered. Unfortunately, the date for his sentencing was cancelled by the COVID-19 pandemic effect on the operation of Court Services.

Following his time in custody, Mr. Campbell will be given a probation order for 18 months, to help his rehabilitation. In assessing his sentence, the Court considered the fundamental principle that the sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. Over a period of almost six months, Mr. Campbell assaulted five separate individuals in four separate locations across Iqaluit, from well-known businesses to private residences. Each individual offence was relatively low on the gravity scale. However, two of the offences are statutorily aggravating because of the young age of one victim and the domestic nature of the previous relationship with another victim.

The Court must also consider the purpose of sentencing set out in s. 718 which is to impose just sanctions that have one or more of these objectives: denunciation, deterrence of the offender and others, separation if necessary, rehabilitation, reparation and promoting a sense of responsibility in offenders. Mr. Campbell’s guilty plea shows he is taking responsibility for these offences and intends to work on rehabilitating himself. The pre-sentence report outlined some Gladue factors that also need to be considered in this case, per s. 718.2(e).

Mr. Campbell has now been in custody for a little over five months and is entitled to credit for that time. The issue is whether and how to account for the effect of COVID-19 on prison conditions and what, if any, sentencing considerations should be made on account of such conditions. Time in custody during the current pandemic, depending on public health and geographic realities, may be harsher time in custody than usual. This is so not only because authorities have put in place restrictions to try to keep inmates safe, but also because of the general uncertainty about the present and future wellbeing of individuals and society.

These changes due to the pandemic are to protect inmates and staff at the institution, where public health measures such as social distancing are not readily available. Protecting the inmates and staff then also protects the public in Iqaluit. The measures are imposed even though the Territory continues to be “COVID free” because that status could change at any time. In Nunavut where programming is often available for prisoners, punishment is also increased by loss of programs as well as family visits. These restrictions will continue going forward.

Mr. Campbell’s time spent in custody will be harsher for an unknown period of time. He has been given the maximum allowable amount of credit for his pre-sentence custody. In these circumstances, it is appropriate to reduce Mr. Campbell’s sentence going forward by 60 days because of the harsher conditions of his incarceration.