Accused pleaded guilty to home invasion robbery. One important issue that arose was how to account on sentence for restrictions in ERC related to COVID-19. Total time in pre-sentence custody was 412 actual days; approximately 90 were under the COVID-19 restrictions.

Held: Treated as additional mitigating circumstance.

Court analyzed various possible approaches. COVID-19 restrictions did not breach s. 12 of Charter, nor were they ‘state misconduct’ as term was used in Nasogaluak, 2010 SCC 6. Maximum credit remained 1.5 to 1, per s. 719(3.1). However, “adverse prison conditions falling short of a breach of s 12 of the Charter, but that rise to the level of a mitigating circumstance, are most appropriately dealt with by a reduction of the sentence that would otherwise be appropriate in the circumstances.” Fit sentence here would otherwise be 5.5 years. In addition to 618 days’ worth of pre-sentence custody (412 actual days at 1.5 to 1 credit), the Court deemed a further reduction of 112 days to sentence. As such, 3.5 years to serve.

G. Johnson – Defence Counsel