Ontario Court of Justice

Date: 2016-02-19

Court File No.: Toronto 15-25081

Between:

Her Majesty the Queen

— AND —

Tyrell Edwards-Lafleur

Before: Justice P. Robertson

Heard on: November 17-20, 23, 26, 27, 30, December 1, 8, 21, 2015, and January 27, 2016

Reasons for Judgment released on: February 19, 2016

Counsel:

• G. Botherston, for the Crown
• U. Cara, for the accused Tyrell Edwards-Lafleur

ROBERTSON, J.:

Introduction

[1] This is sentencing of Tyrell Edwards-Lafleur. He has plead guilty to the following offences:

• robbery while armed with a loaded prohibited firearm
• wear disguise
• possess a prohibited firearm without a licence
• possess a firearm while in a motor vehicle
• conspiracy to possess cocaine for the purpose of trafficking
• trafficking in cocaine

[2] The pleas were entered partway through his preliminary inquiry.

[3] There is not a substantial difference in the respective sentencing positions of the Crown and the defence. The Crown seeks a sentence of 6 years, while the defence submits a sentence slightly in excess of 5 years is appropriate.

Facts

[4] A brief review of the facts: Mr. Edwards-Lafleur, with two others, conspired and planned over a number of days the robbery of a cheque cashing, money loan business known as Cash Max. Mr. Edwards-Lafleur was not the mastermind of the robbery, but he was an important player. He had been recruited a week or more in advance of the robbery and as I found as fact, was aware his co-accused would be armed with a firearm during the robbery. Mr. Edwards-Lafleur, like his co-accused, had a pre-assigned role. His was to enter the premise, vault the service counter and disarm the clerk of their panic alarm button, in what turned out to be a failed attempt to rob the premises.

Aggravating and Mitigating Factors

[5] Any sentencing starts with a consideration of the aggravating and mitigating factors.

Aggravating Factors

[6] The aggravating factors:

• the robbery was planned and somewhat sophisticated; everyone had assigned roles
• use of a firearm in the commission of the robbery
• the firearm was loaded, with a bullet in the chamber; whether he knew or not is irrelevant; that is the risk you take when you are party to an armed robbery
• you were masked
• you used a significant degree of actual physical violence in the execution of the robbery; you vaulted the counter immediately upon entering the Cash Max, slamming Ms. Khan against the rear wall, knocking her to the floor as you grappled with her for the panic alarm
• you have a criminal record
• your criminal record was current; you spent much of 2013 in and out of custody, including being convicted of assault with a weapon just 2 weeks before committing the present drug offences and less than 2 months before the robbery
• at the time of these offences you were subject to a weapons prohibition
• at the time of these offences you were on bail for offences of an assault with a weapon, and breach of a youth disposition order
• at the time of these offences you were on 3 separate probation orders
• the victim suffered extreme psychological trauma; the robbery continues to affect her emotionally and was a contributing factor to the loss of her employment with resulting financial hardships; the full impacts on Ms. Khan are set out in her Victim Impact Statement
• you were engaged in the trafficking of drugs as a commercial enterprise
• the drug which you trafficked and to which you conspired to possess for the purpose of trafficking was cocaine and crack cocaine; the latter, a particularly dangerous and insidious drug due to it being relatively cheap and highly addictive; crack cocaine is a source of great misery for many users, addicts and the community at large as well as being associated with other criminal activity in the community

Mitigating Factors

[7] The mitigating factors:

• guilty plea; though entered part way through your preliminary inquiry in a crown's case fairly characterized as very strong or even overwhelming, it is nevertheless a guilty plea, a sign of remorse and with the related saving to the administration of justice for the continuation of the preliminary inquiry and the subsequent jury trial
• you are youthful; at the time of the robbery having just passed your 18th birthday; and today, just 20 years old
• you appear to have gained some insight as to the impacts of the robbery on the victim, Ms. Khan
• time served in pre-trial custody; you should be credited at a rate of 1.5 to 1 for every day you have served; as of today you have served 694 days; enhanced credit for such time therefore is the equivalent of 1040 days

[8] Mr. Cara also advanced in argument as a mitigating factor that your involvement in the drug trade was at the direction of and supported by your father. He characterized you as working for and under his influence. He submitted you were more like a mule in the drug trade or an employee of your father's.

[9] This is putting it too high. Certainly your father supported your commercial sale of drugs but a fairer characterization would be you were both in mutual beneficial but separate enterprises with you having your own drug clientele. The transcripts document the sharing of the drug supply to satisfy each other's clients demand. Certainly you were the more "junior" player but you were in a co-operative drug enterprise with your father.

Principles of Sentencing

[10] These are extremely serious offences. The offence of robbery with a prohibited firearm has a statutory mandatory minimum sentence of five years.

[11] The offence of being masked is an aggravating factor which calls out for an additional sentence.

[12] The offences of trafficking and conspiracy to possess cocaine for the purpose of trafficking are separate and unrelated offences to the robbery and related charges and calls for a separate and consecutive sentence.

[13] The appropriate range for trafficking in small quantities of crack cocaine is six months to two less a day. The higher end of the range is reserved for those engaged in long-term, persistent trafficking, particularly where that is the sole or primary source of the offender's livelihood; see R. v. Evans 2013 ONSC 7003. The evidence does not support Mr. Edwards-Lafleur as either a long-term or persistent trafficker, however he did have an active drug business over the span of 3 months (the period of the wiretaps), which appeared to account for his sole source of income.

[14] The paramount principles of sentencing for crimes of extreme violence by a youthful first offender are specific deterrence and denunciation. General deterrence is not an irrelevant consideration in such cases but plays a lesser role.

[15] Rehabilitation is also a very important sentencing principle for youthful offenders. The danger of imposing a lengthy period of imprisonment on a youthful offender is its potential of impairing rehabilitation. As noted by Dubin, J.A., as he then was, in R. v. Pearce (1974), 16 C.C.C. (2d) 369 (Ont.C.A.), dissenting,

"It ought not to be overlooked that it is important that persons in prisons who are to be released at some time will not return to a life of crime but will become self-supporting, capable of assuming new responsibilities and turn in the direction of becoming useful members of society. If a prison term is of such a length as to endanger the future rehabilitation of an accused, then the term of imprisonment imposed on him will not protect society in the future."

Conditions of Pre-Trial Custody

[16] As previously stated, Mr. Edwards-Lafleur has been in custody for 694 days. He spent the first 9 months at the Toronto East Detention Centre and the remaining time at the Toronto South Detention Centre. While at the East Detention Centre he was triple bunked over 100 times. While at the South Detention Centre he was in lockdown for more than 139 days. Unfortunately, the institutional records do not specify if those were partial or complete lockdowns.

[17] Defence counsel submits triple bunking and frequent lockdowns amount to extremely harsh conditions which should be reflected in additional pre-trial credit.

[18] Temporary overcrowding at remand facilities is a reality. This is particularly true on weekends due to the influx of people serving intermittent sentences. Chronic longstanding space shortages however are not justifiable. Mr. Edwards-Lafleur was triple bunked a third of this time while housed at the East Detention Centre. This means he was housed in a cell designed for two, resulting in two inmates having a bunk, while the third has a mattress on the floor.

[19] Lockdowns are also an inherent part of institutional life. They are necessary to conduct both routine mandated searches of the institution for weapons to ensure the safety of inmates and staff, as well as unscheduled searches when intelligence within the complex raises the possibility of the presence of a weapon. Lockdowns are also understandable when maintenance repairs have to be made or when staff are reassigned to deal with an unexpected urgent situation, such as a medical emergency of an inmate, making the number of staff available too few to safety deal with inmates in open ranges. What is not or should not be part of institutional life is repeated lockdowns due to staffing levels. At the Toronto South Detention Centre Mr. Edwards-Lafleur was confined to his cell on repeated days on several occasions. Although the details of the lockdown records are not as complete as I would have liked, it is apparent he was in lockdown for substantial periods during his incarceration at the Toronto South Detention Centre.

[20] It should be understood when an inmate is subject to total lockdown, they are confined with another inmate to their cell – a 15 foot by 7 ½ foot by 9 foot (in height) concrete box. Confinement for 24 hours a day is not the only result of a total lockdown. Visits by family, friends and even their counsel are halted. Telephone access is cut off. Contact with the outside world is lost. Exercise, fresh air / yard privileges are suspended and showers are not allowed. All rehabilitative programs are cancelled and even when the lockdowns are lifted, the effects continue. The rehabilitative value of programs, even when available, is diminished as a result of the constant interruption to programming.

[21] The Supreme Court of Canada in R. v. Summers 2014 SCC 26, confirmed enhanced credit was to be capped at a rate of 1.5:1. The Court reaffirmed trial courts should continue to grant credit for the two conventional justifications – for the loss of credit of time towards parole eligibility and early release and compensation for the harsher conditions generally accepted to exist in detention centre as compared to correctional facilities. The Supreme Court acknowledged however adherence to the statutory maximum could lead to a disparity. At paragraph 72 the Court notes,

"This means that two offenders, one of who lost the opportunity for early release and parole and a second who, in addition to losing those opportunities, was also subject to extremely harsh conditions will likely both have credit assigned at a rate of 1.5 to 1. The unavoidable consequence of capping pre-sentence credit at this rate, is that it is insufficient to compensate for the harshness of presentence detention in all cases."

The Court went on and acknowledged,

"Individuals who have suffered particularly harsh treatment, such as assaults in detention, can often look to other remedies, including (my emphasis) under 24(1) of the Charter."

[22] Hill, J. in R. v. Tulloch, [2014] O.J. 4939 (Ont.S.C.) notes that the Supreme Court's use of the word "including", is an indication the Court was not restricting relief to a Charter remedy. Other remedies exist to give effect to mitigation of sentence for particularly harsh remand conditions.

[23] This is entirely consistent with the Supreme Court of Canada's approach in R. v. Nasogaluak [2010] S.C.R., page 207 at paras. 2-5 and 53-55 accepting the availability to courts to mitigate sentence in light of state misconduct.

[24] In R. v. Tulloch, Hill, J. was dealing with a youthful first offender who, in addition to being locked down for a substantial period of time while in pre-trial custody, was also subject to triple bunking. Although Mr. Edwards-Lafleur is not a first offender, he is youthful and this is his first adult sentence. Although the institutional records do not record that he was tripled bunked and lockdown at the same time, it does document he was both double bunked and subject to extensive lockdowns at different times.

[25] I consider being lockdown for over 139 days and being triple bunked in a cell over 100 times to be "particularly harsh treatment." Such conditions should be compensated for in mitigation of sentence.

Other Sentencing Principles

[26] In sentencing Mr. Edwards-Lafleur for multiple offences, I am cognizant of adherence to the totality principle, such that the global sentence itself is fit and appropriate, and not such to crush rehabilitative prospects.

[27] It may also be necessary to abandon consecutive sentencing principles to achieve the fit and appropriate sentence.

Conclusions

[28] Mr. Edwards-Lafleur if you would please stand.

[29] You are a young man. You have most of your life ahead of you; hopefully. You come from your mother's home who has provided and cared for you to the best of her abilities. She has tried to counsel you to make wise choices; to be productive and make something out of your life. When her counsel fell on deaf ears she arranged professional counselling, no doubt at some considerable financial cost. That apparently bore some temporary benefits. She foresaw however association with your father as potentially destructive.

[30] Your mother recruited assistance from your grandmother and grandfather who too counselled you and reinforced the values to which your mother had attempted to impart to you.

[31] You resisted their interventions. Despite their persistence, you decided to take a different road.

[32] In addition to your mother, grandparents and the counsellor hired by your mom, you had the benefit of many interventions available through the youth justice system. Rather than seeing how you could benefit for those services, you again chose to take that different road.

[33] I want you to listen to some statements made by others and then your own statements:

Mom: "He has an inability to take direction from authority."

Mom: "He is a person who doesn't like to be told what to do."

Tricia Sandieson (Probation officer): "Notwithstanding varying opportunities within the youth justice system, including Extra Judicial Sanctions, several periods of detention and probation orders, Tyrell does not appear to be deterred from committing further offences, abiding by the conditions of his Judicial release orders [etc.]…; see page 9 of your pre-sentence report of January 24, 2014."

[34] And then, now your voice:

Tyrell: "After 2011, I decided to make money the easy way."

[35] Since 2012 that "easy way" has lead you to spend most of 2013 in and out of jail, 9 months of 2014 in jail, all of 2015 in jail and the sentence I will impose today will unfortunately added considerable more time to be served in jail.

[36] Is it the "easy way" to spend your entire young adult life in a prison, without any contact with the real world? That is the question you need not only ask yourself, it is the question you need to answer.

[37] In considerations of the paramount principles of specific deterrence, denunciation as well of the important principle of rehabilitation, and in light of the aggravating and mitigating factors, I find the appropriate sentence is as follows:

Sentencing

[38] On the predicate offence of robbery with a firearm, the sentence is one of 784 days on top of time served of 694 days, credited at a rate of 1.5:1, the equivalent credit of 1041 days. This is the equivalent of a five year sentence.

[39] On the charge of wear disguise, the sentence will be 6 months. Normally this would be consecutive but in light of the principle of totality, the sentence will be served concurrently.

[40] On the charge of possession of a firearm without a licence, the sentence will be 3 months concurrent.

[41] On the charge of possession of a firearm in a motor vehicle, the sentence will be three months concurrent.

[42] Regarding the charges of trafficking in cocaine and conspiracy to possess cocaine for the purpose of trafficking, you were engaged in a commercial drug enterprise. There is no indication you are an addict. The appropriate sentence is one of 1 year consecutive to any other sentence.

[43] There must however be consideration for the extremely harsh remand conditions experienced in the almost 2 years in pre-sentence custody. There is also the principle of totality, which brings into question whether it is appropriate for this sentence to be served in its entirety, consecutively. In addressing both in fashioning a total fit and appropriate sentence, on the trafficking in cocaine charge, the sentence will be 269 days consecutive. On the offence of conspiracy to possess cocaine for the purpose of trafficking, the sentence will be one of six month concurrent.

[44] The total remnant sentence therefore to be served is one of 1053 days, or just less than 2 years and 9 months.

Additional Orders

[45] Robbery with a firearm is a primary designated offence, and the charges of trafficking of cocaine and conspiracy to possess cocaine for the purpose of trafficking are secondary designated offences. I will order the taking of your DNA on all 3 offences.

[46] The will be a section 109 Order, a weapons prohibition order, for life.

[47] The Victim Fine Surcharge will apply and in light of the amounts and the period of incarceration, there will be 4 years to pay.

Released: February 19, 2016

Signed: "Justice Robertson"