R v Claros – 2019 ONCA 626 (Paciocco):

[70] I would not allow a sentence reduction for the Charter disclosure breaches that occurred. I appreciate that the trial Crown told the trial judge that he could properly order such a reduction. However, the legal foundation required for a sentence reduction was not present, and so the Crown concession should not have been acted upon.

[71] Specifically, as Lebel J. pointed out in Nasogaluak, at para. 48, the ordinary principles of sentencing may support a sentencing reduction where a Charter violation “bear[s] the necessary connection to the sentencing exercise.” He said that to be a mitigating sentencing factor, the Charter breach must bear upon the circumstances of the offence or the offender.

[72] In this case, I agree with the comment made by the trial judge during sentencing submissions that “[i]t would seem difficult to call the Charter breach[es] … a circumstance of the offence or the offender”. The Charter breaches had nothing to do with the offence, and no persuasive theory has been offered by the defence as to how they impacted on the circumstances of the offender that are relevant in identifying a fit sentence.

[73] Trial counsel did argue that the disclosure breaches delayed the trial, which prolonged presentence custody and thereby warranted a sentencing reduction. In my view, it would not ordinarily be appropriate to grant a sentencing reduction on this basis where, as here, credit is already being given for pre-sentence custody. Things might be different where there is specific evidence that the pre-sentence custody caused by the Charter breaches was particularly onerous, but no such evidence was presented here.

[74] Certainly, the trial judge did not explain how he ultimately came to the view that the Charter breaches related to the principles of sentencing. If he was going to grant a sentencing reduction for the Charter breaches, he should have done so and quantified a fit reduction.

[75] For my part, I can see no connection between the Charter breaches and a fit sentence as there may have been, for example, had the Charter breaches deprived Mr. Claros of the opportunity to receive information that could reasonably have prompted the mitigating benefit of a guilty plea before trial. I see nothing comparable to the punitive effect that police brutality or an arbitrary detention might have on an offender. Here there is simply no link between the Charter breaches and the determination of a fit sentence. In my view, this is therefore not a case for a sentencing reduction.