R. v. London Date:, 2012 BCPC 274

Citation: R. v. London Date: 20120514 2012 BCPC 0274 File No: 55150-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANDOL BRIAN LONDON REASONS ON SENTENCE OF THE HONOURABLE JUDGE P. CHEN Counsel for the Crown: J. Medjuck Counsel for the Defendant: D. Gaffar Place of Hearing: Richmond , B.C. Date of Judgment: May 14, 2012

[ 1 ] THE COURT : There are a few issues here. The first one is the application of s. 515(9.1), coupled with the application of s. 719. Specifically that is whether or not the detention order pronounced by Judge Rae on July 5th, 2010 was primarily because of Mr. London's previous conviction, or his prior record. Now that I have had an opportunity to review both that subsection and Judge Rae's decision, I do not interpret Judge Rae's decision detaining Mr. London as a decision that was primarily because of the previous conviction.

It was a factor, certainly, but Judge Rae certainly did not state in her decision that it was the primary factor, so I am not prepared to find that Mr. London is precluded from having access to ss. (3.1) of s. 719. [ 2 ] The second issue is to what extent loss of remission should be considered in the application of ss. (3.1).

Subsection (3) of s. 719 states: “In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence, but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.” [ 3 ] And then between ss. (3) and ss. (3.1), there is the word "exception", followed by ss. (3.1) which states: Despite ss. (3), if the circumstances justify it, the maximum is one-and-one-half days for each day spent in custody.

I have already found that the rest of this subsection does not really apply to the case at bar. [ 4 ] The question is; what are the circumstances that could justify one-and-one-half days' credit for each day that had been spent in custody up to the point of sentencing? Should the loss of remission be considered? [ 5 ] I have read the decision of Judge Challenger which I find a quite well-written and well-considered decision. However, I also have three decisions from the Supreme Court of this province. In the case of R. v.

Sharkey , there appears to be a bit of a different approach taken from that of the case of J.B. which was Judge Challenger's decision. In Sharkey , the court fully granted credit at the higher rate of 1.5 to one for an additional six months that it took for a Gladue report to be prepared. However, that was the only period of the pre-sentence custody which was calculated at that higher rate. For the rest of the time, Mr. Sharkey was in pre-sentence custody, which was 13 months; he received 13 months' credit.

He did receive nine months' credit for the last six months, and again, that was because of the delay of the Gladue report by that period of time. [ 6 ] In the case of R. v. Prince , Madam Justice Griffin, at paragraph 93. stated: …the tide of judicial opinion in British Columbia favours requiring circumstances beyond the ordinary loss of earned remission time that affects all offenders who are detained prior to sentencing . [ 7 ] In my view, this implies the application of a requirement for something beyond the ordinary hardships of being in pre-sentence custody. [ 8 ] The case of R. v.

Seymour, Madam Justice Smith at paragraph 28 makes note of Judge Challenger's decision in R. v. B.(J.). However, at paragraph 29, she stated: “Further, as I have noted, there is no consensus among the courts that have considered this issue as to whether the impact on remission or parole can, on its own, be a justification for enhanced credit. I therefore will not grant Mr. Seymour enhanced credit on that basis.” [ 9 ] Madam Justice Smith then went on to consider other circumstances.

At paragraph 30, she wrote: “A separate question is whether the circumstances of pre-disposition detention can be taken into account, such that particularly onerous circumstances can justify enhanced credit.” [ 10 ] And at the end of the day, she decided to allow a higher rate of credit for Mr. Seymour. That conclusion is at paragraph 34 where she stated: “It was undisputed in this case that Mr. Seymour suffered particularly harsh conditions of confinement for at least a portion of the time of his incarceration, in that he was in solitary confinement for 23.5 hours per day.

While this was apparently for his own protection, it was nevertheless during a period when he was presumed innocent and awaiting trial.” And at paragraph 35: “In light of the jurisprudence prior to the enactment of ss. 719(3) and (3.1), the statements of the Minister cited in R. v. Johnson, and the wording of s. 719(3.1) , I find that Parliament intended that sentencing judges will have discretion to recognize particularly harsh circumstances of pre-trial incarceration in the amount of credit awarded for pre-trial custody.”

[ 11 ] In paragraph 36, Madam Justice Smith concluded: “I think that almost constant solitary confinement meets the description of such circumstances, and I will credit Mr. Seymour with 1.5 days per one day in custody between his initial arrest on August 9, 2010, and his release on bail on April 11, 2011, after deducting the days for which he has already received credit in connection with other charges.” [ 12 ] That leads us now to the issue of whether the conditions of confinement that applied to Mr.

London would qualify as circumstances justifying a higher conversion ratio for the time that has been spent in custody. I accept that the pre-trial detention centres are over-crowded. My rough calculation of the average of 577 inmates for a facility whose capacity was originally intended to be 490 inmates is approximately 25 percent more than capacity. It is not as high as double, it is not as high as 150 percent, but it is approximately 125 percent of capacity. [ 13 ] I do accept that it is not pleasant in there. There are rough people in there, and there were times when Mr.

London felt some concern for his safety. He was not physically attacked; he was never put in segregation for his own protection. He did end up in segregation, it would appear on two occasions, the first time for ten days, but that was because of a fight that he got into, and it was a disciplinary matter. The second time was because he had breached the rules of the institution by entering into the cell of another inmate. Accordingly, I do not find that to be equivalent to the solitary confinement that Mr.

Seymour had to undergo, which was for his own protection because of danger and threats from other inmates. [ 14 ] Mr. London also has not been able to access a lactose-free diet, which he was able to access when he was at Surrey Pre-Trial, at North Fraser Pre-Trial. He has been at North Fraser Pre-Trial since January 2011, or about 13 months. However, when he was questioned by Crown, he did indicate he was still able to eat food that did not contain dairy products. He just could not eat all of the food and he had to eat his cereal without milk. He could eat the toast. I find there has been some hardship to Mr.

London with respect to that. He has also had to undergo some double-bunking, quite a lot of it, which seems to be increasingly common, unfortunately, in the pre-trial detention facilities.

However, these are difficulties that have to be borne by most of the inmate population of these detention centres. [ 15 ] In my view, the Supreme Court cases that have been provided to me have only gone to the higher conversion rate to credit time spent in pre-sentence custody where there are circumstances that are somewhat unique to the accused, whether it be the late report of the Gladue report, or the imposition of solitary confinement for the protection of the accused.

Prince did not find any reason to increase the conversion ratio. [ 16 ] I find Judge Challenger's decision to be quite well-written and I agree with a lot of the things that she has stated there. However, I am of the view that the cases I need to follow are those from the Supreme Court. Applying the principles of those authorities, I do not find that I can apply ss. (3.1) to increase the credit beyond one-to-one, except for that period of time following March 27th which would be an additional 24 days. I can round it off. It is a minimum four-year sentence. He has spent 26 months in custody.

If I credit him another 24 days, that is -- I'm not sure how that would work. You're looking for another 22 months less 24 days, I suppose. (DISCUSSION) [ 17 ] MS. MEDJUCK: So 21-and-a-half months [ 18 ] THE COURT: So one year and 280 days, which is -- I have no idea how many -- see, months are difficult because some are 30, some are 31, and one's 28. But it's one year and 280 days. [ 19 ] MS. MEDJUCK: Which is nine months and ten days. [ 20 ] THE COURT: We could do it that way. [ 21 ] MS. GAFFAR: So 365 plus what was it? [ 22 ] THE COURT: One year and 280 days.

The issue is; how do you pronounce that 280 days? [ 23 ] MS. GAFFAR: 645 days is fine. [ 24 ] THE COURT: Okay. [ 25 ] MS. GAFFAR: That's jail time left to serve. [ 26 ] THE COURT: Yes. [ 27 ] MS. MEDJUCK: Which, by my calculation, one year, nine months and ten days. [ 28 ] THE COURT: Okay. [ 29 ] THE CLERK: So the jail time that he's already served that he's being credited for is 815 days. [ 30 ] THE COURT: I guess so. Let me see. He's being credited for 815 days. [ 31 ] MS. MEDJUCK: Just a moment, please. It's 791.

[ 32 ] THE COURT: Plus 24. So that's 815 days credit. [ 33 ] MS. MEDJUCK: Just so we don't miss anything, this, Your Honour, is a mandatory designated DNA offence. It is -- [ 34 ] THE COURT: I'll make an order pursuant to s. 487.051(1) that Mr. London provide such samples of bodily substances as are reasonably required for forensic DNA analysis. [ 35 ] THE CLERK: Victim fine surcharge? [ 36 ] MS. GAFFAR: I'd ask that it be waived, please. [ 37 ] THE COURT: I'll waive that. [ 38 ] MS. GAFFAR: Your Honour, just to be clear, in your decision you stated at one point that there were times when Mr.

London felt some concern for his safety. You then stated that he was not physically attacked and that he was never put in segregation for his own protection. You then went on to say that he was in segregation twice and you described two incidents. You omitted the April 2011 when he was attacked by two men and blindsided. He was placed in segregation at that point, yes. [ 39 ] THE COURT: Was he placed in segregation for that? Thank you. There was one incident. But I don't think that will change the decision that I have made for that one incident.

In the Seymour case, the accused spent virtually the whole of his time in solitary confinement for his own protection. [ 40 ] So it's simply 815 days credit for time served. [ 41 ] MS. MEDJUCK: Yes. And sorry, Your Honour, I also forgot to mention that it is a designated

section under s. 109. [ 42 ] THE COURT: Yes. [ 43 ] MS. MEDJUCK: It's a mandatory firearms prohibition order of ten years as the minimum, and that's what the Crown is asking. [ 44 ] THE COURT: It will be ten years then. [ 45 ] MS. MEDJUCK: I can advise then that Crown directs stays of proceedings as against all other counts on the Information against Andol Brian London. (REASONS FOR SENTENCE CONCLUDED)