The court reviewed evidence that the inmate suffered overcrowding, spent more than a year in lockdown
The Ontario Court of Appeal declined Tuesday to reduce an inmate’s sentence for an armed robbery conviction, despite the inmate’s claim that the sentencing judge lacked evidence of the harsh presentence custody conditions he endured, including overcrowding and prolonged periods during which he was barred access to certain facilities.
In its decision in R. v. Clarke, the appellate court told the inmate, Alexander Clarke, that he can provide fresh evidence of his presentencing conditions. However, the court dismissed Clarke’s bid to reduce his nine-year sentence by a year and four months.
The evidence Clarke produced during his appeal “does not impact the fitness of the sentence, which was on the lower end for an armed robbery conviction,” the OCA said.
“Any reduction to account for the appellant’s pre-sentence custody conditions in the circumstances of this case would render the appellant’s sentence unfit.”
The case can be traced back to 2019, when Clarke and another man robbed a Toronto employment agency. Clarke entered the agency’s office while masked and armed with a handgun. He held the gun to an employee’s head to force her to open the door to the office, and corralled other employees at gunpoint before stealing about $20,000 in cash.
A judge sentenced Clarke to nine years after taking into account several aggravating factors, including other convictions for robbery in 2007, 2009, and 2014. The judge also considered mitigating factors, like the fact that Clarke had expressed remorse, apologized to the victims, and completed rehabilitation programs while he was in custody.
His sentence included a DNA order, a lifelong weapons ban, and an eight-year long-term supervision order.
While considering Clarke’s bid to reduce his sentence, the OCA reviewed his lockdown records at Toronto East Detention Centre and the Toronto South Detention Centre, where he spent his presentence custody period, as well as evidence confirming that he spent 114 days “triple bunking.” The latter refers to a practice in which three inmates are housed in a cell designed for only one or two people.
The court also considered evidence that Clarke spent 383 days in full or partial lockdown. However, the exact extent to which he was barred from showers, exercise, television access, or access to programming during this period was unclear.
The court said that “while the impact of lockdowns is to some extent ‘self-evident,’” it did not have enough evidence about the lockdowns and their impact on Clarke to conclude that they entitled him to a sentence reduction.
Since the OCA issued a 2021 decision called R. v. Marshall, the court has held that judges can use harsh pretrial custody conditions as a mitigating factor when determining appropriate criminal sentences. However, courts cannot use such harsh conditions to reduce “an otherwise fit sentence,” the OCA said.
The court noted that a seven-year sentence is the minimum sentence for a second or subsequent armed robbery. The 2019 robbery was Clarke’s eighth.
Counsel for Clarke did not respond to a request for comment. The Ontario attorney general’s office declined to comment because the case is on appeal.
