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| John L. Hill |
One of the two men arrested was Cedric Agard, then 25 years old, of Mississauga, Ont. Agard was charged with weapons and drug charges. He was found guilty of several counts on two separate indictments in the Superior Court of Ontario.
Agard pleaded guilty on the first indictment to possessing cocaine, possessing a loaded restricted firearm and possessing a firearm while prohibited. He also pleaded guilty to charges on a second indictment that included possession of cocaine for the purpose of trafficking, possessing a loaded firearm, possessing the proceeds of crime and dangerous operation of a motor vehicle.
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On Dec. 4, 2024, Agard appealed the global sentence of 8.5 years. He conducted the appeal in person but had the assistance of duty counsel. His arguments for reducing the time he was sentenced to serve were that the sentence imposed was harsh and excessive and did not give sufficient credit for the time served in severe jail conditions. He pointed out that he was a racialized individual with strong family support and good prospects for rehabilitation. Agard was told his appeal was dismissed with written reasons for the dismissal to follow.
The appeal court's written decision (R. v. Agard, 2024 ONCA 897) was released on Dec. 10, 2024. The three-judge panel's unanimous decision was delivered in an eight-paragraph judgment. There was no analysis of how the trial judge was correct in imposing a lengthy sentence.
The court stated that the sentence handed down was neither demonstrably unfit nor based on an error in principle. The trial judge had considered the accused’s racialized circumstances, his family support and his good prospects for rehabilitation.
The appeal court found that the sentencing judge had considered the harsh jail conditions Agard experienced in pretrial custody. The Court of Appeal noted that in imposing a sentence, the judge had stated that, but for the harsh jail conditions, the sentence would have totaled nine years.
Sometimes, appeal court judges forget that their words must be considered by a larger audience than the person bringing the appeal. Of course, the bottom line is most relevant to the appellant. However, such appeals serve the general public in advising how much credit should be given when jail conditions are deplorable or if race is a consideration in sentencing. It is ok to say that the trial judge applied proper legal principles in sentencing. However, a reader of this judgment will be left wondering what legal principles were involved and what citations show those principles to be consistent with recognized jurisprudence. Such criticism does not suggest that the appeal court made a wrong call. Perhaps a judgment with reasons that show how the appeal court agreed with the sentencing judge would be helpful for the public, who must rely upon the law as appellate courts analyze it.
Family support and positive steps taken by the appellant to better himself while in custody may not impact the sentence. However, these positive steps are essential for release on parole. Instead of simply giving the impression that family support and rehabilitative programming are inconsequential, as seen in Agard’s sentence challenge, the appeal court could have urged continuation in self-improvement and building a support system.
After all, parole eligibility on an 8.5-year sentence is at the one-third point in the sentence. A prisoner should be left hopeful that an early release could be achieved.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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