Citing ‘unconscionable’ conditions at Toronto South jail, judge imposes 7-year sentence but says man should face no further prison time

A Superior Court judge has taken the “extreme” step of reducing a man’s seven-year prison sentence for drug trafficking and gun possession to time served because of his treatment inside the Toronto South Detention Centre.

Tal Singh Fermah “has endured conditions in our institution — our most modern institution in the province — that I consider to be harsh and unconscionable and I don’t think he should serve any more time. I’m just going to sentence him to time served,” Justice Anne Molloy said last week.

“It’s an extreme thing that I’m doing,” she said. She added he should be released from custody “as soon as possible.”

Molloy delivered her bottom-line with just a few comments, but promised to release a written ruling as soon as possible, with “proper reasons” otherwise “it’s not going to hold up” on appeal, she told court June 6.

In an email to the Star, defence lawyer Nakita Kelsey said she was “overjoyed” by the decision, calling it “a groundbreaking remedy for clients who are not treated properly in jail.”

“This decision should place the treatment of prisoners at (the jail) under a microscope and should also act as a catalyst for a broader review of the treatment of prisoners at correctional facilities,” she said. “This is a wake-up call for the authorities at these institutions.”

While Molloy has a reputation for bold decisions on prisoner welfare, she isn’t the first judge to offer a sentencing discount to offenders after raising concerns about the facility.

In March, Justice John McMahon shaved time from a convicted drug dealer’s sentence, saying it was “absolutely unacceptable” and “unfair” that inmates at the South are frequently subjected to full lockdowns, keeping them confined to cells, unable to use the phones and have visitors, including seeing their lawyers.

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Last year, Justice Robert Goldstein gave a young man found guilty of possessing a firearm enhanced credit for the amount of time he spent on lockdown, writing in his decision that “We should not simply normalize unacceptable conditions in a jail.”

This past January, Molloy convicted Fermah, 32, of firearm-related and drug trafficking charges after a judge-alone trial last fall. During a search of his home, police found a lockbox containing 111.24 grams of heroin, a Glock handgun, ammunition, a weigh scale and a box of small baggies.

Fermah has been in custody two-and-a-half years. During that time, Molloy heard that Fermah experienced 205 days of lockdown and 214 half days of lockdown.

In an affidavit filed in court by Kelsey, Fermah outlined the physical and mental hardship of being assaulted by another inmate, forced to sleep on the floor and “harassment and oppressive treatment by (jail) staff.”

He suffers from a medical condition that causes him to have seizures and has received incorrect dosages of medication — or has not been provided with any medication at all, his affidavit states.

“I have lived in fear of my health, my safety and of my life.”

Molloy said she was particularly “very disturbed” that Fermah, who suffers from numerous medical conditions, including epilepsy, was assigned to sleep in a top bunk, where “he could have died” if he had a seizure. She was critical of the institution for ignoring repeated requests for intervention by medical authorities and his lawyers.

“This is just … this should not be happening in an institution anywhere in this country, much less the city of Toronto.”

Crown attorney Gary Valiquette told the Star in an email that the Attorney General is awaiting the written ruling before deciding whether to file an appeal in the 30-day period.

Fermah is being held in custody on an immigration hold and faces deportation.

Betsy Powell is a Toronto-based reporter covering crime and courts. Follow her on Twitter: @powellbetsy

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