R. v. Dockery, 2018 ONCJ 797

CITATION: R. v. Dockery , 2018 ONCJ 797 DATE: November 15, 2018 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — CHRISTOPHER DOCKERY Before Justice Susan M. Chapman Heard on January 10, February 14, March 29¸ May 10, June 12 and September 20, 2018 Judgment released on November 15, 2018 J. Rinaldi........................................................................................................ Counsel for the Crown Self-represented.................................................................................................

Christopher Dockery Chapman, J.: Overview [ 1 ] On January 10, 2018, Mr. Dockery pled guilty to an aggravated assault that occurred in March of 2017. Following the plea, there was evidence called on a Gardiner hearing for the purpose of challenging the existence of an aggravating feature of the crime relied on by the Crown, namely that the assault occurred in the context of a “domestic” relationship.

The Crown must prove this aggravating feature of the assault beyond a reasonable doubt in order to rely on it in sentencing and I find that they have done so, for the reasons set out below. [ 2 ] Sentencing submissions commenced on March 29, 2018. Mr. Dockery discharged counsel following the March 29 submissions. The case was then adjourned a number of times at the request of Mr. Dockery who was seeking to retain new counsel and/or to appeal a legal aid denial and/or advance a Rowbotham application. In the end, Mr. Dockery was self-represented.

The sentencing hearing resumed on September 20, 2018 for the continuation of submissions. [ 3 ] Prior to the discharge of counsel, a number of materials were filed on behalf of Mr. Dockery including institutional records showing lockdown dates in both the Maplehurst Detention Centre and the South Detention Centre during the relevant time frames. Those records were subsequently updated by the Crown to at least the day of October 24, 2018. Subsequent to the discharge of counsel, Mr.

Dockery filed some additional materials with the court that I rely upon in imposing sentence. [ 4 ] The Crown seeks a sentence of 5 years incarceration, minus time spent in pre-trial custody at the usual rate of 1.5 /1 credit. When involved in the proceedings, Defence counsel submitted that a sentence in the range of three years was more appropriate and urged the court to give more than the usual credit for pre-sentence custody given the harshness of the circumstances of Mr. Dockery’s pre-sentence custody. In his own final submissions, Mr.

Dockery did not specify an appropriate sentence but did point out circumstances in mitigation of sentence and asked for leniency and perhaps time served. [ 5 ] I will make my findings on the evidence Gardiner voir dire , review the additional circumstances of the offence and the offender, and then determine a fit sentence. Facts of the Offence [ 6 ] On the afternoon of March 27, 2017, Mr. Dockery walked into the Piccola Citta Bar and Café on Keele Street in Toronto and sat down at a table that the complainant was seated at. There were a number of other patrons in the restaurant.

After a very brief conversation, he repositioned himself at the table and then slapped the victim’s face with his right hand, grabbed her by the hair, pushed her to the ground and stomped on her face. She was rendered unconscious. Mr. Dockery then left the bar. [ 7 ] The police and ambulance were called and the complainant taken to Humber Wilson Hospital to be treated for her injuries. It was necessary for her to have surgery on her jaw. It was broken in multiple places. Further, eight (8) permanent titanium plates had to be installed in her mouth as part of the surgery.

They will be there for the rest of her life. One tooth was knocked out during the initial assault, and perhaps swallowed by the complainant during the course of the assault. Two other teeth had to be removed as part of the reconstructive surgery. The physical injuries sustained are very serious. The entire event is captured on surveillance video and shocking to watch. The “ Gardiner ” Hearing

[ 8 ] Though he pled guilty to the charge of aggravated assault, Mr. Dockery contested that he was in an intimate relationship with Ms. Sarah Randhal at the time of the assault or at any time. The Crown relies upon the domestic nature of the assault in aggravation of sentence and so there was a hearing to determine the issue. Both the complainant and Mr. Dockery testified on the Gardiner hearing. The Evidence [ 9 ] The complainant testified on the voir dire . She has no criminal record and is employed full-time. During her evidence, she was tearful and demonstrably terrified of the offender.

She knew him as Jamal. They met through a mutual friend. Then they started dating in the Fall of 2016. She had been living with a friend in the same building. However, in mid-December she moved into Mr. Dockery’s apartment where they routinely shared a bed up to the time of the assault in March of 2017. She had some, but not all of, her belongings at his apartment. She did not maintain a separate residence. She described her relationship with Mr. Dockery as “boyfriend and girlfriend”. They were in an intimate sexual relationship. [ 10 ] In cross-examination, it was suggested to Ms.

Randhal that at the time of the assault she was in an intimate relationship with another man in the building and not Mr. Dockery. She denied this fact. Nor did she tell Mr. Dockery that she was dating this other man as they were just friends. She had a few friends that she had stayed with over the course of the year leading up to her moving in with Mr. Dockery but this was the first time that she lived with a man in the context of a relationship. It was suggested to the complainant in cross-examination that she knew at the time of her interactions with Mr.

Dockery, that he was trying to rekindle a relationship with a mother of his children. She denied that. It was suggested to the complainant that she and Mr. Dockery never had sexual relations. She adamantly denied that fact. [ 11 ] Mr. Dockery testified on the voir dire . His evidence is very confusing, evasive and inconsistent. He testified that he knew the complainant as “Lala” and that it was not until his arrest in April of 2017 that he learned her real name. They met one time at a bar in 2015, through a mutual friend, and then he did not see her again until the end of October/early November of 2016.

However, he was told by the very same mutual friend that the complainant was living in the same building as him. Mr. Dockery testified that at one point in November he was home when a man came to the door looking for the complainant. Another time the same man showed up at his apartment with the police looking for the complainant. He testified that in his building there are some unscrupulous people that he tries to stay away from, though who he was referring to was not clear from his evidence. He testified that he was “shocked” that these people would be looking for the complainant at his apartment.

He also suggested that the complainant hid from the police the time they turned up at his door, though he had earlier seemed to suggest in his evidence that she was not present in his apartment on either occasion. [ 12 ] Mr. Dockery testified that he saw Ms. Randhal again mid-December. He was home in his apartment when, according to him, she just turned up. He saw her again in February when she agreed to accompany him to court on a matter, though he did not specify how this was arranged if there was no further contact since December.

He also testified that building security was concerned that she was living with him and confronted him about that fact. He in turns states that he questioned her about why they might think this and she got mad and left. In essence, his evidence is that she would bring bags of beer to his place on occasion and that they would stay up late together but that she never slept over. They never had sex. She told him that she may have some disease due to her contact with another man. They were not in an intimate relationship of any kind, according to Mr. Dockery. [ 13 ] Mr.

Dockery has an extensive criminal record, including several convictions for crimes of dishonesty. Further, in cross- examination he denied that any of the convictions on his record relate to incidents of domestic violence. The Crown has filed materials, with the consent of his counsel (at the time that he was represented) demonstrating that the underlying convictions do in fact relate to incidents of domestic violence. To this extent, this undermines the credibility of the offender’s testimony on the hearing.

I will have more to say about these antecedents later in these reasons. [ 14 ] It should be noted that Mr. Dockery apparently told the author of the presentence report that he and Ms. Randhal “were together for a short period of time before the offence occurred.” He disputes saying this and the author of the report was not ultimately called upon to testify so I attach no significance to this seemingly contradictory assertion made by Mr. Dockery concerning the nature of his relationship with the complainant. Conclusion on the Gardiner Hearing [ 15 ] I accept without reservation the evidence of the complainant.

I completely reject the evidence of Mr. Dockery as to the status of his relationship with the complainant and it raises no reasonable doubt whatsoever on the issue. His evidence was argumentative, inconsistent and nonsensical. He has a number of crimes of dishonesty on his criminal record. At the hearing, he lied repeatedly about the nature of his criminal record and the fact that several of his prior convictions related to violence against women.

He suggested that he would not have had sex with the complainant because it is his understanding that she had an STD – a suggestion never put to her in cross-examination. He suggested that he barely knew the complainant much less was in an intimate relationship with her. On his version of events, it was a virtual stranger that he walked up to in the café and brutally assaulted for no apparent reason. In short, his evidence is incapable of belief. [ 16 ] On the other hand, Ms. Randhal’s evidence was clear and consistent and convincing.

On any realistic definition of what constitutes a “domestic” relationship, this was one. The parties were intimately involved with one another and had been living together for three months by the time of the attack. Accordingly, I find as a fact that this assault took place in the context of a domestic relationship. Victim Impact Statement [ 17 ] Sarah Randhal provided a victim impact statement. In it she describes the devastating consequences of the attack on her. She is in constant excruciating pain. For the first four months following the assault, she could only consume a diet of liquids.

She has been depressed and angry since the attack and has difficulty trusting anyone. She states that she does not know why Mr. Dockery attacked her. She has lost both jobs and friends as a result of the anger she feels following the attack. She used to work two jobs and now she has none. She is terrified that he will hurt her again. She spent 5 days in hospital and had surgery following the attack and

continues to attend doctor’s appointments and take medication to deal with the ongoing pain from her injuries. The attack on her has been life altering and devastating. The Accused’s Letters to the Court [ 18 ] Following the “ Gardiner ” hearing, and after having discharged counsel, Mr. Dockery provided a letter to the court that was filed as Exhibit 5. In that letter, Mr. Dockery sets out in writing some additional facts concerning the events that are the subject of the plea.

In particular, he alleges that the attack on the complainant was motivated by her unwillingness to cooperate with police in a murder investigation. He suggests that he was encouraging her to cooperate with the homicide investigators, into some unidentified case, and that he was, for some reason not clear, upset by her alleged unwillingness to participate in the investigation even though he was not personally involved in the investigation.

He then suggests that he met with the victim on the day in question to discuss this matter further and that she allegedly made some unspecified derogatory comment that he perceived as a threat to his family. What the nature of that alleged threat was is not stated. [ 19 ] At Mr. Dockery’s request, a second rendition of the same letter was tendered in evidence by him following his discharge of counsel and made Exhibit 8F. Mr. Dockery explained that his lawyer had been involved in editing the first version of the letter and that he wanted me to see his original version. In the unfiltered version of the letter, Mr.

Dockery claims that the aggravated assault on the complainant was motivated by her threatening his life and the life of his family. In the letter it is alleged that the complainant even mentioned slitting someone’s throat. [ 20 ] The Crown vehemently opposes this version of events. None of this was ever put to the complainant in the Gardiner hearing. Nor were these factual qualifications suggested at the time of the plea. Mr. Dockery has not testified to these facts, though he was given the opportunity to do so. Instead of testifying, Mr.

Dockery indicated that he was prepared to act on the Crown’s concession that something upset him and triggered the assault on Ms. Randahl. Accordingly, I place no reliance upon those parts of the letter that purport to elaborate upon the circumstances of the offence. [ 21 ] I do take into account, in mitigation of sentence, the fact that in the letter Mr. Dockery nonetheless apologizes for his actions and suggests that he is getting some treatment for psychological issues that he believes are at the root of his recent problems, though not an excuse for them.

While being incarcerated in Maplehurst, he has been seeing a doctor about his anxiety and depression. He filed certain medical and other institutional records with the court in relation to his program involvement while in custody. I will have more to say about this later. The Offender Pre-sentence Report [ 22 ] Mr. Dockery is 49 years of age. He was born in Kingston, Jamaica. He has lived in Canada since 1975 and is a Canadian citizen. His father remained in Jamaica but his mother and four siblings live in Canada. He tells the author of the pre-sentence report that he has a good relationship with them.

However, at the age of 12 or 13, he was removed from his mother’s care and placed in the care of a child intervention agency until the age of 16. The presentence author report indicates that Mr. Dockery was not able to elaborate on the reasons for this intervention. He attended a vast number of schools in the greater Toronto area due to his constant relocations as a youth. He was suspended from one school for fighting. He did obtain his secondary school diploma. [ 23 ] Mr.

Dockery told the author of the presentence report that he has a good relationship with his mother who is a nurse that has retired and moved back to Jamaica. He has six biological children from five previous partners. No family or friends filed letters of support for Mr. Dockery or attended court. Mr. Dockery reports to the probation officer that he has worked for the past four years as a contractor completing renovations and has a good relationship with his current employer.

He informs the probation officer that he has never had a past or present problem with substance abuse and that he does not currently use illicit drugs. Criminal Antecedents [ 24 ] Mr. Dockery has an extensive and serious criminal record. His first criminal conviction was in 1987 and his last, prior to this matter, was in 2008 (not 2006 as suggested in argument). He has been convicted of numerous serious offences including obstruct police, escape lawful custody, fraud, personation with intent, uttering forced documents, parole and statutory release violations, as well as a number of crimes of violence.

These are some of the highlights of that criminal record: • In March of 1989 – assault (1 day custody and 1 year probation); (no synopsis tendered) • In May of 1989 – fail to comply recognizance and assault (30 days custody plus 1 day consecutive); o Tab 2 of the Crown’s sentencing materials provides a synopsis of the events leading to this conviction. According to the synopsis, on January 28, 1989 Mr Dockery attended a shopping mall in Mississauga and approached the victim, his ex-girlfriend Ms. B., and had a brief conversation with her. Then, for no apparent reason, he punched her in the face using his fist.

A mall security guard intervened and Mr. Dockery kicked him in the right leg. The security guard and a coworker held Mr. Dockery while Ms. B. called the police. However, Mr. Dockery got free and left the mall before the police arrived. The May 1989 convictions are in relation to the assault on Ms. B. At the time of that assault Mr. Dockery was on a condition to stay away from her. In January of 1990, Mr. Dockery was also convicted of assault in relation to the security guard. (see below);

• In October of 1989 – aggravated assault and assault cause bodily harm, (18 months less 1 day, and 6 months consecutive); o Tab 3 of the Crown’s sentencing materials provides a synopsis of the events leading to these convictions. On November 20, 1987 the accused was with his girlfriend Ms. B., in her room when a loud argument began. Ms. B. attempted to leave the room several times but was prevented from doing so by Mr. Dockery. Mr. Dockery head-butted Ms. B. causing her two black eyes (assault causing bodily harm). Mr. Dockery produced a knife and cut his own hand with it.

Another tenant of the house entered the room and attempted to assist Ms. B. Ms. B. left the room and hid for her own safety. Mr. Dockery then assaulted the other tenant by slashing his abdomen with a knife resulting in a 22 cm gash approximately 3 cm deep (aggravated assault). At the time of this incident Mr. Dockery was apparently on a recognizance with a condition that he stay away from Ms. B. • In January of 1990 – assault (3 months consecutive to sentence being served) o See the events of November of 1987 outlined above.

This conviction is in relation to the assault on the security guard at the mall who intervened in relation to the assault on Ms. B.; • In May of 1992 – importing a narcotic x2 (2 years and 6 months concurrent on each); • In January of 1996 – sexual assault (originally sentenced to 7 years custody, varied on appeal to 4 years) (no synopsis or facts tendered other than the fact that the victim was his girlfriend Ms.

J.); [parole violator and statutory release violator. statutory release in May of 2000] • In January of 2003 – assault and threaten bodily harm (7 days and probation 2 years) o According to a synopsis filed by the Crown, the victim and the accused were intimate partners. Mr. Dockery went berserk and started throwing things around the apartment. He then tried to strike the victim in the head with his elbow but missed and she ran out of the bedroom and into the kitchen where her mother was. They all left the apartment and the accused was told that the relationship was over.

He started repeatedly calling the victim later that day and then came to her apartment, tried to gain entry, drove around the premises, returned, tried to gain entry, etc. for several hours. He kicked the door, broke the chain lock off and the victim called the police. After the police arrived, Mr. Dockery continued to call the complainant and one of the officers eventually answered the phone. Mr. Dockery told the police officer that he was watching the apartment and that “I’m going to get a gun and shoot you in your face”.

He then hung up the phone. • In February of 2003 – assault causing bodily harm and forcible confinement (1 day on each charge plus 2 years probation, having regard to 6 months and 10 days presentence custody) o At tab 7 of the Crown’s sentencing materials, there is a synopsis in relation to the events giving rise to these convictions. In July of 2002 the accused began an argument with his then girlfriend and ended up dragging her around the apartment. He pushed her up against a wall and started choking her until she passed out. Later that same day he would not let her leave the apartment and threatened her.

The next day she woke up and found that Mr. Dockery had rifled through her belongings and taken some of her personal papers. When she confronted him about this, he told her that if she was talking to other people he would throw acid in her face and knife her and that he would take a gun and beat her with it.

He threatened to kill her if she ran away. • In April of 2004 – uttering threats, attempt break and enter with intent and fail to comply with probation (7 days and 15 months probation on all charges concurrent in light of 51 days presentence custody) o At tab 8 of the Crown’s sentencing materials a synopsis of the events said to have lead up to these convictions is outlined. Mr. Dockery and the victim were in a dating relationship during which it is alleged that Mr. Dockery assaulted her. She ended the relationship and he persisted. She changed the locks on her door. Then on February 2, 2004, Mr.

Dockery attended her apartment and

tried to gain entry. She called 911. The police arrived and found that Mr. Dockery had removed part of the exterior mechanism of the door handle to the complainant’s apartment. In relation to the uttering threats conviction, a separate synopsis indicates that on November 25, 2003, Mr. Dockery confronted the victim, a friend of his former girlfriend, Ms.

J., who he believed she was living with, and told her “when I see you, I will shoot your black ass”. • In May of 2004 – fail to comply with probation and obstruct peace officer (60 days intermittent and 4 months probation on each charge concurrent with 4 days presentence custody noted.) o At tab 9 of the Crown’s sentencing materials, there is a synopsis of the events leading to Mr. Dockery’s conviction for the above charges. In it, it states, that on April 16, 2004 Mr. Dockery was convicted of threatening bodily harm and breach of probation and received a 7 day sentence and 15 months probation.

One of the terms of the probation was that he was to stay away from Ms. J. Then, on May 22, 2004, he was tossing stones at the window of her apartment and knocking at the door. She called police and when they arrived Mr. Dockery provided them with a false name. • In June of 2004 – fail to comply with probation (60 days custody). o At tab 10 of the Crown’s sentencing materials, there is a synopsis of the events leading up to this conviction and sentence. Following his conviction for fail to comply probation and obstruct police, that was the subject of the May 2004 convictions described above, Mr.

Dockery was released from custody on temporary absence and bound by a probation order a term of which was to stay away from Ms. J. Then on May 27, 2004 he attended at Ms. J.’s apartment building and tried to gain access to the building. Ms.

J. refused to open her apartment door and called the police. • In February of 2005 – assault with intent to resist arrest (along with a number of other convictions, 4 months custody and 18 months probation on each concurrent in light of 5 days presentence custody) • In June of 2004 – assault with intent to resist arrest (4 months custody and 18 months probation); • In February of 2005 – assault resist arrest (4 months and 18 months probation, 5 days presentence custody noted). • In November of 2008 – obstruct police officer (1 day to reflect 90 days PTC). [ 25 ] It should be noted that at the time that the Crown filed its book of sentencing materials, Mr.

Dockery was represented by counsel and there was no objection to its filing. In fact, there was express consent to the evidence being admissible for the purpose of contradicting the accused’s testimony on the Gardiner hearing and for the purpose of establishing a history of ongoing domestic abuse with various intimate, female partners. [ 26 ] That being said, I wish to clarify what limited use I am making of the above information, and in particular the facts underlying some of the previous convictions. Mr. Dockery is not being sentenced again for acts committed in the past.

The bulk of the facts underlying the previous convictions are largely irrelevant to the appropriate sentence in this case and will be disregarded by me. The single, consistent fact that I do glean from this history, and point to in aggravation of sentence, is the fact that Mr. Dockery has numerous convictions for crimes of violence against women he has been intimately involved with and is therefore a serial domestic abuser.

He has been given many opportunities in the past to rehabilitate himself in this regard and has apparently either not availed himself of those opportunities or otherwise failed at them. [ 27 ] Mr. Dockery agrees that he has been arrested a few times since 2006 and on these dates and that it therefore is not entirely accurate to say (as was suggested earlier in submissions) that he has not been in trouble since 2006. Obviously, Mr. Dockery is presumed innocent in relation to any matters that he was not convicted of and I place no reliance upon his post-2008 history for the purposes of imposing sentence. [ 28 ] Mr.

Dockery’s last criminal conviction was in 2008. That is a gap of nearly 10 years. This is obviously very significant and I take it into account in mitigation of sentence. It shows that Mr. Dockery is capable of living a crime free life for a substantial period of time. However, it is discouraging that he is right back to the sort of crime he was committing over the course of many years of his adult life. Other Information [ 29 ] In addition to the institutional records demonstrating various period of lock down, other materials were filed on Mr. Dockery’s behalf.

I have reviewed and taken into account various certificates of completion concerning his participation in various education programs. He also filed medical records showing various medications that he has been taking and efforts that he has made to

reach out to psychiatric and psychological experts. I view the efforts as relatively modest given his troubled history. There is nopsychiatric diagnosis or other apparent explanation for his behavior. Analysis [30] Aggravated assault is a serious crime of violence by its very definition. The manner in which it was committed in thiscase is particularly egregious. A perfectly innocent victim was brutally and publicly attacked for no apparent reason. She sustaineddevastating, life altering injuries as a result of the attack. The accused was in a relatively brief domestic relationship with the victim.

The Criminal Code specifies that this is an aggravating factor on sentence. Further, Mr. Dockery has a lengthy and very serious historyof acts of violence against women that he is involved with. He has been convicted of aggravated assault before and he has been to thepenitentiary before. He has taken all sorts of court ordered counselling over the years none of which have apparently had the desiredeffect of rehabilitating him. His letters to the court demonstrate that he is manipulative and lacks insight in the crime. His professedremorse is not real. The victim impact is. [31] On the other hand, Mr.

Dockery pled guilty to aggravated assault. I take this fact into account in mitigation of sentence. However, it is entitled to less weight in this case than it would be in different circumstances for two reasons: 1) the entire assault iscaptured on video and therefore difficult to deny; and 2) the victim did have to testify, albeit on a Gardiner hearing rather than a fullblown trial, in relation to the details of her relationship with the accused. An offender cannot be penalized for availing himself of hislegal rights, including the right to have a Gardiner hearing on a contested issue.

However, in this case, it does detract from what wouldotherwise be a significant mitigating factor, a guilty plea, to the extent that the victim did have to have to testify in open court, in this caseto the intimate details of her relationship with the accused. [32] There are many aggravating factors in this case including: • The aggravated assault committed by Mr. Dockery was very serious and caused permanent injury, both physical and psychological,to the complainant; • The assault was committed against an intimate female partner, in a domestic relationship: see s. 718.2(a)(ii) of the Criminal Codeand R. v.

Inwood (1989), (ON CA), 48 C.C.C. (3d) 173 (OCA); • The offender was not deterred from committing this horrific attack on this young woman in a public place and in the presence ofmultiple individuals demonstrating just how out of control he is; • The offender’s antecedents demonstrate a pattern of abusive behavior towards domestic partners: R. v. Fulton 2012 ONCA 781.

He has a lengthy and serious criminal history for crimes of violence not only against a number of women he was in intimaterelationships with but as well as against police officers and good Samaritans that sought to assist his primary victims; • The offender has a lengthy criminal record which includes 51 prior criminal convictions; • He has been sentenced to a substantial penitentiary sentence in the past for crimes of violence against a woman, including a domesticrape; and • The need to emphasize general and specific deterrence: R. v. Vienneau, 2015 ONCA 898; R. v.

Kakekagamick (ON CA), 81 O.R. (3d) 664 (OCA). [33] As well, there is an absence of, or a diminishment of, certain mitigating factors for me to consider given that; • Mr. Dockery has been ordered to take counselling – including the PARS program – and it has apparently had no rehabilitativeimpact; • There is no addiction to alcohol or drugs or a psychiatric history that would even begin to explain such a violent and unprovokedattack on an innocent person; • The offender completely lacks insight or remorse.

In fact he made some vague and unsupported derogatory assertions concerningthe complainant in an effort to excuse his conduct, though in the end he offered no evidentiary support for them; • Though there was a guilty plea in this case, its significance in mitigation is tempered for the reasons indicated above. [34] In all of the circumstances, I find that the appropriate sentence is that proposed by the Crown, namely one of five yearscustody. I will now consider what credit to give to Mr. Dockery towards that sentence in light of the time spent by him in pre-sentencecustody.

Positions of the Parties on Enhanced Credit [35] The defence seek enhanced credit for time spent in pre-sentence custody above the usual 1.5 to 1 ratio. In a letter writtento the court and filed as exhibit 5, Mr. Dockery states that his time in custody has been particularly difficult: “because of the constant lockdowns that I’ve experienced both at the South and Maplehurst. Being confined to a cell for days on endreally increases my stress and anxiety, even when I am taking medication to lessen the impact. Having to deal with this is even more

difficult because it limits my ability to speak to medical professionals so I can continue to get the help I need. These lockdowns also impact the already limited contact I have with family and friends, many who are unable to come and see me regularly. All of this adds to my stress and anxiety.” [ 36 ] The Crown opposes additional enhanced credit for time spent in pre-sentence custody. The Crowns points out that the institutional records show that Mr. Dockery has been well-cared for in custody, including medical and other treatment being provided in a timely manner.

He argues that the time spent in lockdown or partial lockdown is not such as to warrant enhanced credit in this case and points to a number of authorities in this regard: R. v. Nsiah, 2017 ONSC 769 (Goldstein, J .); R. v. Bedward, 2016 ONSC 939 (O’Marra, J.); R. v. Holman, 2017 ONCJ 727 (Feldman, J.). [ 37 ] Mr. Dockery was arrested in relation to this matter on April 6 of 2017. He was at the Maplehurst Detention Centre (MHDC) until November 19, 2017. That is a total of 228 days at MHDC. During that time, he spent 36 days in full lockdown (16% of his time) and 8 days in partial lockdown (4% of his time).

He was then transferred to the Toronto South Detention Centre (TSDC) on October 24, 2018 and has been there ever since. Up until October 24, 2018 Mr. Dockery spent 339 days in custody, 20 days of which were in full lockdown (6% of his time) and 29 days in partial lockdown (9% of his time). That means that, as of October 24, 2018, Mr. Dockery has served 567 days in pre-sentence custody with 56 days (or 10% of his time) in full lockdown and 37 days (or 7 % of his time) in partial lockdown.

So then the total period of lockdown during the 567 days in custody, whether partial or full, is approximately 16% of his time. [ 38 ] I find, based on the case law, and the circumstances of the offender in custody, that he is entitled to enhanced credit at a rate of 1.5 to 1 and not greater. I therefore give him credit for 851 days or 28 months and 11 days as of October 24, when the most up-to- date institutional records were filed. He has been in custody since that time, which is a period of 22 real days, or 33 days at the enhanced rate, to be added to the 851 days for a total of 884 days.

Accordingly, I sentence him to a further 941 days, or rounded down to 2 years and 3 months custody, as of this day. I wish to have specifically noted on the record that I am giving credit for 884 days served in pre- sentence custody. Conclusion [ 39 ] I sentence Mr. Dockery to five years custody minus time spent in pre-trial custody at the usual rate of 1.5 to 1 which leaves 2 years and 3 months remaining. As well, I make a DNA order, which is mandatory in the case of aggravated assault, and a

section 109 weapons prohibition for the duration of his life. Date: November 15, 2018 Justice Susan M. Chapman