R. v. Crawford, 2021 ONCJ 740

R. v. Crawford, 2021 ONCJ 740

DATE: 2021-12-14

Toronto

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

KRISTOFF CRAWFORD

Before Justice Mara Greene

Reasons for Judgement released December 14, 2021

B. Janzen ………………………………….…………………….…….for the Crown

J. Hershberg and C. Rudnicki………………………………………..for Mr. Crawford

M.B. Greene J.:

1On March 9, 2021, at the conclusion of a preliminary inquiry, Mr. Crawford entered a plea of guilty to robbery while armed with a weapon, robbery while armed with a firearm and possession of a weapon contrary to a prohibition order. This matter was then adjourned many months for counsel to prepare materials and legal argument. The sentencing hearing took place at the end of October 2021. Crown counsel seeks a sentence in the range of eight to nine years less pre-sentence custody. Mr. Crawford take the position that he should not receive any sentence for his offence. Instead he seeks a Stay of Proceedings as a remedy for a breach of his section 9 Charter rights. In the alternative he seeks a sentence reduction. Counsel for Mr. Crawford argued at the sentencing hearing that a sentence in the range of six years should be imposed, less one year for Duncan credit, three years as a remedy for the overholding and a further reduction for pre-sentence custody. He argued that after the relevant deductions a three-month sentence ought to be imposed.

2This sentencing raises a host of complicated issues beyond what is the right sentence in this case. Before even addressing what the appropriate sentence might be, I must first address what is the appropriate remedy for the Charter breach (noncompliance with section 503 of the Criminal Code), what is the appropriate interpretation of section 344(2)(a) of the Criminal Code and whether a seven year mandatory minimum under s.344(2)(a) violates section 12 of the Charter.

Factual background

(i) The Offences

3On February 19, 2019, Mr. Crawford and two others committed a robbery at the Toronto Aces Poker Club. One of the robbers carried what appeared to be a firearm. Mr. Crawford and the third person took money and cell phones from ten victims located inside the Poker Club. Mr. Crawford was known to the victims and as such was easily identified. A warrant for his arrest was obtained but not executed until Mr. Crawford was arrested on December 27, 2019 for another robbery. The total amount stolen was $2,500.00 and one cell phone valued at $350.00. Mr. Crawford, in an affidavit filed at his sentencing hearing, stated that he did not plan this robbery and did not attend at the Poker Club with the intention of robbing anyone. He did, however, voluntarily agree to participate when one of his friends decided to rob the place after seeing all the money on the table. Mr. Crawford was not cross-examined on his affidavit and I have no basis for rejecting his explanation for what occurred on February 19, 2019.

4On December 26, 2019, Mr. Crawford and four others robbed Mr. Saba in his residence. A co-accused, Ms. Benmore, attended at Mr. Saba’s residence earlier in the evening as she was known to Mr. Saba. She and another female friend, Ms. Penteado, let Mr. Crawford and two other men into the unit. One of males, not Mr. Crawford, was carrying a firearm and demanded that Mr. Saba produce watches from his watch collection. Mr. Saba, fearing for his life, complied with the demand. One of the males told the person with the firearm to shoot him. Another male put a towel over Mr. Saba’s head and then punched Mr. Saba in the face. Mr. Saba was punched three times in total. Mr. Crawford and his co-accused stole a Breitling Watch valued at $18,000.00, a Louis Vuitton handbag with banking cards, credit cards and identification in it, and keys to Mr. Saba’s vehicle. Mr. Saba suffered a laceration to his face, bruising to his head and cuts to his feet from broken glass.

5At 11:02 pm on December 26, 2019 Mr. Saba called 911. Mr. Crawford and two others were arrested at 12:20 am on December 27, 2019. He had been in a cab with one of his co-accused, Mr. Reid. Mr. Reid was in possession of a loaded firearm. Mr. Crawford and his co-accused were taken to 52 division for further investigation. The police arrested seven people that morning, four of whom were charged with the home invasion robbery of Mr. Saba. While in custody at 52 division for the robbery of Mr. Saba, the warrant from the Ace Poker Club robbery came to light and Mr. Crawford was arrested for that offence as well.

6In the early morning hours of December 27, 2019, the police knew that they were charging Mr. Crawford with the armed robbery of Mr. Saba and with the robbery form the Ace Poker Club, nonetheless, Mr. Crawford was not taken to court that day. He was only transported to the courthouse at 8:30 am the following day, December 28, 2019, some 32 hours after his arrest.

7At the time Mr. Crawford was bound by a prohibition order not to possess weapons.

8After a preliminary inquiry, Mr. Crawford pled guilty to three offences arising from the above two robberies: robbery with an imitation firearm (s.343(d) of the Criminal Code), robbery with a restricted firearm (section 344(1)(a) of the Criminal Code), and possession of a weapon in contravention of a weapons prohibition order (s.117.01 of the Criminal Code).

9In an affidavit filed with the court at his sentencing hearing, Mr. Crawford stated that he was not involved in the planning of the robbery of Mr. Saba. Mr. Crawford wrote that he was asked to “come along and could make some money fast”. It is not alleged that Mr. Crawford was the person holding the firearm during the robbery, nor it is alleged that he was ever personally in possession of that firearm. He does admit that he was a party to the possession of the firearm.

(ii) Mr. Crawford

10Mr. Crawford is 29 years old. He was born in Canada and raised by his mother and grandmother. His father was killed in England when Mr. Crawford was 11 years old. Mr. Crawford has many siblings. Mr. Crawford’s mother moved a lot when he was young as she felt unsafe in many places they were living. Mr. Crawford was in and out of high school and never graduated.

11Mr. Crawford committed his first adult offence when he was 20 years old. He became involved gambling and eventually became addicted to gambling. While he worked at times, he spent and lost all his money in gambling rooms, including the one he victimized in February 2019.

12After the February robbery, Mr. Crawford was “on the run”. He lived for a while with the mother of one of his children, but he gambled away all their money.

13Mr. Crawford is remorseful for his criminal acts. When he is eventually released from custody, Mr. Crawford plans on returning to live with his children and their mother. The plan is for her to control the family finances so that Mr. Crawford will not be able to gamble away their life savings. He also wants counselling to help him address his addiction.

14Mr. Crawford has been in custody since his arrest. He has engaged in what limited programming is available at the jail. He is also taking medication for anxiety. I will go into more detail of the circumstances of Mr. Crawford’s pre-trial detention later in this judgment.

15Mr. Crawford’s criminal record includes entries from 2009 when he was a young person for assault, theft, obstruct and failing to comply with court orders. He has a finding of guilt for robbery as a young person. Mr. Crawford has five other robbery convictions from 2013 along with a number of other offences. His most recent sentence was for a criminal harassment in 2016.

Issues and The Law

16As previously stated, this sentencing hearing raises a number of legal issues. They can be summarized as follows:

1. What remedy should Mr. Crawford receive for the violation of his Charter rights when the police failed to bring him to court within 24 hours of his arrest?

2. What is the minimum sentence in the case at bar – seven or five years?

3. If the minimum sentence is seven years, does this minimum penalty violate Section 12 of the Charter?

4. What is the appropriate sentence?

1. What is the Appropriate Remedy for the S. 9 Violation?

17It is agreed by all parties that Mr. Crawford’s rights as guaranteed by section 9 of the Charter were violated when he was not brought before a justice within 24 hours of his arrest as is required under section 503 of the Criminal Code. Instead, Mr. Crawford remained at the police station for thirty-two hours before he was transported to the court and was seen by a justice. Mr. Crawford seeks a stay of proceedings pursuant to section 24(1) of the Charter as a remedy for this violation.

18I do not mean to trivialize the violation of Mr. Crawford’s rights, and I am mindful that the 24-hour limit codified in section 503 exists for a reason, but it is my view that a stay of proceedings is not an appropriate remedy in this case.

19Section 503 of the Criminal Code requires officers to bring arrested persons before a justice within 24 hours of arrest and without delay or if a justice is not available the person shall be taken before a justice as soon as possible. Section 503 protects against lengthy investigative detentions and ensures prompt access to a justice and counsel. Mr. Crawford was held for 32 hours at the police station which delayed his access to counsel and created an extended time of uncertainty while he sat in a cell at the police station. This is, however, the extent of the actual prejudice suffered by Mr. Crawford. The delay in bringing Mr. Crawford to court did not result in a delay in his being released from custody. Mr. Crawford was facing serious charges; he had an extensive record and was not in a position to have a bail hearing right away. Moreover, as Mr. Janzen, Crown counsel, pointed out, the officers made no attempt to interrogate or even interview Mr. Crawford during the relevant time frame. His continued detention was not an intentional plan by the police in an attempt to garner information from Mr. Crawford. It is this absence of significant prejudice to Mr. Crawford that leads me to conclude that a stay of proceedings is not the correct remedy.

20It is well established that the remedy of a stay of proceedings is a remedy that should only be resorted to in the clearest of cases given society’s interest in having matters tried on their merits. In R. v. Babos, [2014] S.C.C. 16, the Supreme Court of Canada summarized the relevant legal principles as they relate to a stay of proceedings:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para 54).

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”.

21In the case at bar, trial fairness is not impacted by the Charter breach. The defendant therefore in asking for a stay of proceedings, is relying on the impact of the police conduct on the integrity of the justice system. The focus is on whether a remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct (R. v. Babos, supra, at paragraph 39).

22In the case at bar, Mr. Janzen attempted to justify DC McDonald’s failure to bring Mr. Crawford to court in a timely fashion by referencing the fact that DC. McDonald had a lot to do that morning, having just arrested seven different people in relation to this very serious robbery. I appreciate that this was a large investigation, but as I understood D.C. McDonald’s evidence, he thought that he could not bring Mr. Crawford to court until he completed what appears to be the entire disclosure package including uploading officer’s notes, obtaining 911 reports and obtaining McNeil checks. In reality none of these things needed to be prepared before Mr. Crawford could be brought to court. All that is required is an information, police notes on potential release, a synopsis of the offences and the criminal record. Anyone who has been in bail court in the past decade knows that the bail package rarely includes the items listed by D.C. McDonald. I have no information about why D.C. McDonald felt that he needed to get this material before bringing Mr. Crawford to court but I am satisfied that it was not necessary and had DC McDonald understood this, Mr. Crawford would have been brought to court on time. I cannot find that the officer was so busy that it was impossible for him to bring Mr. Crawford to court. Instead, he prioritized his paperwork over compliance with the Criminal Code.

23On the evidence before me, Mr. Crawford did not experience significant prejudice from this breach, I cannot, however, find that he experienced no prejudice at all. The additional time spent at the police station delayed Mr. Crawford’s access to his counsel in person. Meeting one’s counsel at court after an arrest is often the first time an accused person can really understand what is happening in the court process and what next steps will look like. Moreover, as Mr. Hershberg pointed out, the 24-hour time limit identified in section 503 is not the recommended time to bring someone to court, it is the maximum amount of time permitted in normal circumstances. In the case at bar, Mr. Crawford was held well beyond this upper limit. In light of the importance of complying with section 503 of the Criminal Code generally, and the absence of a reasonable explanation for the delay, it is my view that this was a serious breach, albeit not so serious as to require a stay of proceedings. The case at bar resembles in many ways the facts from R. v. Carter, 2016 ONSC 2832, [2016] O.J. No. 2267 (SCJ). In that case, the officers failed to bring Mr. Carter to court within 24 hours as required by section 503. Mr. Carter was held for 36 hours before he was brought to court. O’Marra J. found this to be a serious breach but noted, like the case at bar, that the breach was not intentional nor was it for the purpose of gathering additional evidence. There was an additional aggravating factor in Carter that does not exist in the case at bar, that is that Mr. Carter was also sick and the police ignored his medical complaints. Despite this additional aggravating feature to the breach, O’Marra J. still found that a stay of proceedings was not appropriate. Instead he reduced the sentence to one of a conditional sentence.

24In my view, a stay of proceedings in the case at bar would be a disproportionate response to the violation. Moreover, there is another remedy, which in my view, can meaningfully address the breach. A reduction in sentence speaks to the Charter breach and is an appropriate remedy in all the circumstances of this case.

25Crown counsel argued that if I am to reduce the sentence I should only do so by a nominal amount given the “relatively minor transgression of s.9”. Respectfully, I disagree. In my view, a sentence reduction in the case at bar, to be a meaningful remedy, must be significant. I am satisfied that a remedy in the range of a six months reduction in sentence speaks to the overall nature of the breach without providing a disproportionate windfall to Mr. Crawford. A reduction in the range of six months takes into consideration the extended time at the police station without access to counsel and a justice. It takes into account the fact that the officer prioritized completing paperwork that could wait over complying with the Criminal Code and it takes into account the fact that the officer failed to fully appreciate the necessity of bringing Mr. Crawford to court.

2. What is the minimum sentence in this case?

26Mr. Crawford entered a plea of guilty to the offence of robbery while armed with a firearm pursuant to section 344(1)(a) of the Criminal Code in addition to two other offences. Mr. Janzen argued that since Mr. Crawford has prior convictions for robbery, he is subject to a seven-year minimum sentence for this offence. Mr. Hershberg, on behalf of his client, argued that Mr. Crawford is only subject to a five-year minimum sentence since he does not have any prior convictions for robberies while armed with a firearm. The dispute relates to the interpretation to be attached to section 344(2) of the Criminal Code and what is considered a prior offence. To fully understand this argument, it is useful to consider the actual provision. Section 344 reads as follows:

344(1) Every person who commits robbery is guilty of an indictable offence and liable

(a) If a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction nor, or in association with a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of

(i) In the case of a first offence, five years, and

(ii) In the case of a second or subsequent offence, seven years.

(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

(2) In determining, for the purpose of paragraph (1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be consider as an earlier offence:

(a) an offence under this section.

(b) an offence under subsection 85(1) or (2) or section 244 or 244.2; or

(b) an offence under section 220, 246, 239, 272, or 273, subsection 279(1) or section 279.1 or 346 if a firearm was used in the commission of that offence

27To paraphrase this provision, section 344 addresses the penalty for robbery. The offence of robbery is otherwise defined in section 343 of the Criminal Code. Section 344 states that when a person commits a robbery and a restricted or prohibited firearm is used in the commission of the offence then, for a first offence the minimum sentence is one of five years. For a second or subsequent offence, the minimum sentence if one is convicted of using a prohibited or restricted firearm in the commission of the robbery, is seven years. For any other robbery where a firearm is used, the minimum sentence is four years and for a robbery where no firearm is used, there is no minimum sentence. The maximum sentence is life imprisonment. Section 344(2) addresses what is a “second” or “subsequent” offence. The provision in issue in this case is 344(2)(a) which reads that a second or subsequent offence is when an offender has a previous conviction for “an offence under this section”.

28Mr. Janzen, for the Crown, argues that on a plain reading of the provision, the phrase “an offence under this section” includes any prior robbery conviction whether a firearm was used or not. Mr. Hershberg, for Mr. Crawford, argued this phrase is limited to offences under 344(1)(a) which are prior robberies committed with a restricted or prohibited firearm.

29The first argument put forward by Mr. Janzen is that subsection 344(2)(a) references an offence “under this section”. It does not say “an offence under this subsection”. Mr. Janzen argues that this is Parliament clearly indicating that any prior robbery is sufficient to engage the seven-year mandatory minimum. Mr. Janzen further argued that if there is any doubt that the subsection 344(2)(a) is meant to include all robberies, one need only look at the language of the provision itself which clearly distinguishes between “sections” and “subsections”. In light of this clarity of language within the section, Mr. Janzen argued that the only viable interpretation of the provision is the broader definition that includes all prior robberies.

30The second argument put forward by Mr. Janzen is that there is no separate offence of robbery without a firearm or robbery with a firearm. There is one offence – that is of robbery and the presence of a firearm during a robbery is only an aggravating factor on sentencing. As there is no separate offence of robbery with a firearm, a previous conviction as contemplated in Section 344(2)(a) must mean a prior conviction for any robbery.

31Mr. Janzen also argued that s.344(2)(c) also supports a finding that any prior robbery will lead to a minimum sentence of seven years. In section 344(2)(c), Parliament specifically noted that in considering any of those offences, they are only considered a relevant prior offence where the offence was carried out with a firearm. This explicit requirement of a firearm being used in a prior offence is not mentioned under s.344(2)(a).

32Mr. Hershberg argued that I should adopt a narrower approach to interpreting section 344(2)(a) so that it only includes prior convictions for robbery with a restricted or prohibited firearm. In support of this position, he argues that where a penal provision is ambiguous the ambiguity must be resolved in favour of the accused. Moreover, Parliament is presumed to have acted in conformity with the Charter. Given the breadth of actions that are encompassed under “robbery” a minimum sentence of seven years would violate section 12 of the Charter if the prior offence included robberies that did not involve firearms. Mr. Hershberg also argued that reading in the requirement of a prior conviction for a robbery with a firearm is consistent with the overall purpose of the legislation and the structure of all the increased penalties for second firearm offences.

33It is easy to appreciate the argument put forward by the Crown. The most compelling argument put forward by Mr. Janzen is that the provision states “under this section” as opposed to “under this subsection” where elsewhere in the legislation Parliament has clearly made that distinction. Moreover, Mr. Janzen is correct, that there is no offence of robbery with a firearm per se. Instead there is the offence of robbery. Whether or not the offender used a firearm in the robbery is an aggravating factor to be consider on sentence. Despite the obvious merit to the Crown’s argument, I am nonetheless of the view that section 344(2)(a) of the Criminal Code when speaking of “an offence under this section” is referencing a previous robbery with a firearm as opposed to a prior robbery without the aggravating factor of the firearm. I reach this conclusion for a couple of reasons. Firstly, this interpretation is in keeping with other provisions of the Criminal Code dealing with increased penalty for subsequent firearm offences. For example, section 244 of the Criminal Code is constructed in a similar fashion to section 344 in that it identifies the punishment for the offence including increased minimum penalties for subsequent offences. Section 244(3) then goes on to identify what is a “subsequent offence”. Under subsection 244(3)(c) robbery is included but only when the robbery takes place with a firearm. Similarly, section 244.2 which addresses the offence of discharging a firearm, states that the minimum sentence for a first offence is five years and the minimum sentence for a subsequent offence is seven years. Pursuant to section 244.2(4)(c) the increased mandatory minimum sentence of seven years is only available where there is a conviction for a robbery where a firearm was used. A robbery where no firearm was used is not a prior offence that engages the increased minimum sentence. In my view, the similarity in offences identified as a previous offence between section 344(2)(a) and the above noted provisions provides strong support for a finding that the increased minimum sentence for a subsequent offence under 344(2)(a) was not meant to include a robbery where no firearm was used. In both these other provisions, the previous conviction must have involved an offence with firearm.

34Secondly, all the offences under subsections 344(2)(b) and 344(2)(c) are firearm related offences. It would be inconsistent to read section 344(2)(a) to include all robberies. This is particularly so when you look at the remainder of s.344(2) which states that it is specifically dealing with s.344(1)(a) as opposed so section 344 as a whole. This is a clear indication that the focus is on robbery with a firearm only as opposed to all robberies.

35The above interpretation is also consistent with what appears to have been the intention of Parliament as gleaned from the comments of the Hon. Rob Nicholson, the Minister of Justice and Attorney General at the time. As counsel noted in his factum, the Hon. Rob Nicholson when talking about the increased penalties as contemplated by section 344(2) and related provisions, stated,

Bill C-10 defines what will constitute a prior conviction with respect to those use offences, that is, the use of firearms. Theis means that any prior conviction in the last ten years, excluding the time spent in custody, for using a firearm in the commission of an offence will count as a prior conviction and will trigger the enhanced mandatory penalty for repeat offences.

36Finally, in my view expanding the scope of section 344(2)(a) to include any robbery, would not achieve the aim of the legislation – to tackle gun violence in Canada. Including any robbery at all as a prior offence, would only serve to increase the penalty for robberies in general regardless of the presence of absence of a firearm.

3. If section 344(2)(a) means any robbery as a prior offence does the seven-year minimum sentence violate section 12 of the Charter?

(a) Should the Court Engage in the Constitutional Analysis?

37Provincial court judges have no jurisdiction to make formal declarations that a law is of no force or effect under s.52(1) of the Constitution Act. Provincial court judges do, however, have the authority to determine the constitutional validity of a mandatory minimum sentence when the issue arises in a case they are hearing (R. v. Lloyd, 2016 SCC 13 at para 16). While provincial court judges do have this authority, it is open to the court to refuse to address the constitutional argument where it would have no impact on the offender before the court. McLachlin C.J.C. stated at paragraph 18 of R. v. Lloyd, supra,

To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided.

38It follows, that in the ordinary course I must first assess what sentence might be appropriate in the case at bar. If it potentially falls below the mandatory minimum sentence, then, in my view, this court should assess the constitutionality of the provision. I am satisfied that given the host of mitigating factors I identify below, a sentence below seven years may be appropriate in this case. I therefore find that it is necessary to address the section 12 argument. I am also mindful that given my above ruling, this analysis may be unnecessary, but out of an abundance of caution, I am going to briefly address this argument.

(b) Test for Infringement of S.12 of the Charter

39The first step in a s.12 analysis of this sort usually involves an assessment of whether a seven-year sentence in the case at bar would be grossly disproportionate to the sentence Mr. Crawford might otherwise receive

40The courts have set a very high bar for what types of sentences constitute cruel and unusual punishment. A mandatory minimum sentence will only be considered cruel and unusual punishment and therefore violate section 12 of the Charter where the minimum sentence is grossly disproportionate to the offence and its circumstances.

41Grossly disproportionate is a high standard. To be considered grossly disproportionate, the sentence “must be more than merely excessive. The sentence must be ‘so excessive as to outrage standards of decency: and disproportionate to the extent that Canadians would find the punishment abhorrent or intolerable”. (See R. v. Ferguson (2008) 2008 SCC 6, 228 C.C.C. (3d) 385 (S.C.C.) at para 14 ). The court “should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation” (see R. v. Nur, 2015 SCC 15, [2015] S.C.J. No. 15 at para 39).

42In R. v. Lloyd, 2016 SCC 13, [2016] S.C.J. No. 13 at para 45, the Supreme Court of Canada stated,

It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits set out by the Charter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency.

In R. v. Morrissey 2000 SCC 39, [2000] 2 S.C.R. 90 at paragraph 26, the Court stated,

Where a punishment is merely disproportionate, no remedy can be found under section 12. Rather, the court must be satisfied that the punishment imposed is grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable. As I said in Goltz, at p. 501, “the test is not one which is quick to invalidate sentences crafted by legislators

43All these cases make it very clear that the standard for gross disproportionality is a stringent one. This is necessary because it is not the place of a trial judge to second guess the wisdom of Parliament.

44In the case at bar, counsel does not suggest that a seven-year minimum sentence would be grossly disproportionate for Mr. Crawford. I therefore must go on to consider whether a seven-year minimum sentence would be a grossly disproportionate sentence for a hypothetical offender and offence. For clarity sake, the issue in the case at bar is not whether a seven-year minimum sentence for a second robbery with a restricted firearm violates section12 of the Charter. The only issue is whether a minimum sentence of seven years violates section 12 of the Charter where the prior offence is a robbery where no firearm was used.

(c) Reasonable Hypothetical

45The inquiry under this stage, must focus on “reasonable hypothetical circumstances, as opposed to far-fetched or marginally imaginable cases” (R. v. Nur, supra, at para 54). To be a reasonable hypothetical, the fact pattern suggested must be a “reasonably foreseeable situation where the impugned law may apply” (R. v. Nur, supra, at para 58). The court looks to facts that can reasonably arise and will reasonably be caught by the section. McLachlan C.J.C. stated in R. v. Nur, supra, at para 68,

The reasonable foreseeability test is not confined to situations that are likely to arise in the general day-to-day application of the law. Rather, it asks what situations may reasonably arise. It targets circumstances that are foreseeably captured by the minimum conduct caught by the offence. Only situations that are “remote” or “far-fetched” are excluded

46In the case at bar, counsel provided a hypothetical that involved a very sympathetic offender whose personal circumstances were mitigating. Mr. Janzen took issue with this approach and argued that reasonable hypotheticals ought not be based on the most sympathetic person one could possibly imagine. There must be some reasonableness to the hypothetical. I agree. But I need not go to the most sympathetic of offenders to find that a seven-year minimum sentence is grossly disproportionate if the initial offence is not one of robbery with a firearm. I can rely on cases we see frequently in this courthouse. A reasonable hypothetical would be an offender in his early 20s, with a prior record for thefts and some common assaults, where the longest time spent in custody is 90 days. Three years prior to the armed robbery, this hypothetical offender was convicted of a robbery. The facts in support of this conviction were that he approached a woman outside of a Home Depot store. He pushed her and said, “give me your bag”. He then pushed her again and grabbed her purse. While I appreciate that often the Crown will accept a guilty plea to an assault and theft when facts like this come before the court, this is not a guarantee and many times this kind of offence results in a conviction for a robbery. The armed robbery in this hypothetical involves this same offender entering a fast-food outlet. While armed with an unloaded restricted firearm, the offender approaches a cashier, and reveals that he is carrying a firearm by lifting his shirt to show the butt of his gun tucked into his waist band. He then states, “give me all your money”. The cashier hands over the money in the till and the offender leaves. If section 344(2)(a) is interpreted as the Crown suggests, the offender in this scenario is subject to the seven-year minimum sentence.

47In assessing whether a seven-year minimum sentence in this scenario is grossly disproportionate to the sentence he ought to receive, I must be mindful of the fact that the mandatory minimum for a first offence is five years. Even if there was no increased penalty for a subsequent offence, the minimum sentence the above offender could receive is five years. Therefore, the question I really must answer is whether an additional two years imprisonment is grossly disproportionate? Mr. Hershberg and Mr. Rudnicki argued that in assessing gross disproportionality I can find that a reasonable hypothetical would involve a sentence in upper reformatory. Respectfully, I disagree. If the minimum sentence for a s.344(1)(a) offence is five years, then that must be the starting point as the lowest sentence available.

48I am mindful that in some cases a two-year difference in sentence may not trigger this notion of grossly disproportionate. I also appreciate that the increased penalty provision is tailored to only include offences that took place in the past ten years. It is nonetheless my view, that the two-year increased penalty where the prior offence includes any kind of robbery at all is grossly disproportionate. Two additional years in jail, especially for someone as young as Mr. Crawford is a long period time. Moreover, it is the lowest possible sentence one could receive, and any aggravating fact thereafter would increase the sentence above and beyond the seven-year minimum. In my view, when I look at it in this light, the seven-year sentence is grossly disproportionate to the five-year sentence that would otherwise be imposed in what I consider to be a very reasonable hypothetical.

4. The Appropriate Sentence in the Case at Bar

49Crown counsel has argued that the appropriate sentence in the case at bar is a global sentence of eight to nine years. In reaching this number, Mr. Janzen has already taken into consideration the principle of totality, the conditions of pre-trial custody and a sentence reduction for the section 9 breach due to the noncompliance with section 503 of the Criminal Code. Mr. Janzen urges me to impose an eight to nine-year sentence for the armed robbery of Mr. Saba and a concurrent sentence on the previous robbery and the weapons prohibition breach in order to address the totality principle. Mr. Hershberg, for Mr. Crawford argued that a global sentence in the range of five and a half to six years ought to be imposed for all the offences. This sentence, he argued, should be reduced by two to three years to take into account the Charter breach. He then argued that a further reduction should be granted to take into account the harsh jail conditions, particularly during COVID and then a further reduction for pre-sentence custody as per R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. When all the deductions are calculated, counsel argued a sentence of approximately three months would remain.

50In assessing the appropriate sentence I must first be mindful that the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is best determined by considering all the aggravating and mitigating factors while keeping in mind the objectives of sentencing which include:

a) General and specific deterrence

b) Denunciation

c) Rehabilitation

d) Reparation to society and/or the victim

e) Separation from society where necessary

f) The need to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

51Generally, the Criminal Code does not place these objectives in any hierarchy of importance. How much weight a sentencing judge places on any given objective will depend on the facts of each case. As was recently stated in R. v. Morris 2021 ONCA 680 “The individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender”. Mr. Crawford has been convicted of violent crimes involving firearms. The Appellate courts have consistently repeated that the objectives of deterrence and denunciation are paramount. While Mr. Crawford is still relatively young and his prospects for rehabilitation are good, given the prevalence of gun violence in Canada today, rehabilitation must take a back seat to deterrence and denunciation.

52In assessing the gravity of the offence, there are a number of aggravating factors that must be considered. They include the following:

• Mr. Crawford has an unenviable criminal record including five adult convictions for robbery and one finding of guilt for robbery as a young person.

• Mr. Crawford has committed two sets of offences.

• Both sets of offences involved weapons.

• The robberies were planned – albeit Mr. Crawford denies being involved in the planning and there is no evidence before me to contradict his evidence on this point.

• The second robbery involved a home invasion – a statutorily aggravating factor

• A firearm was used in the robbery (albeit this is accounted for in the mandatory minimum sentence).

• Both robberies involved multiple parties.

• Additional violence was used on Mr. Saba – beyond just the robbery

• The gun belonging to Mr. Reid was loaded with 14 rounds of ammunition in it.

• The gun was pointed at Mr. Saba.

• Mr. Crawford was already prohibited from possession a weapon

• The harm suffered by the victims of the robberies.

53There are also some meaningful mitigating factors. They include:

• the fact that Mr. Crawford entered a plea of guilty to the offences.

• that he is taking responsibility for his actions.

• he has support in the community.

• he is attempting to overcome a poor childhood

• he is suffering from a gambling addiction and is committed to overcoming this addiction.

• he has insight into his criminal activities.

54In addition to these mitigating factors, I note that Mr. Crawford is a Black Canadian. Counsel for Mr. Crawford made submissions about what impact, if any, the case of R. v. Morris, supra, should have in sentencing Mr. Crawford. Mr. Janzen argued that there is no evidence before me linking Mr. Crawford’s exposure to discrimination and his criminal activity such that it is relevant to his moral blameworthiness. Similar arguments were made before Schreck J. In R. v. Ahmed, unreported, December 10, 2021. In Ahmed, Schreck J. agreed with the Crown that there was no evidence of a causal connection between past discrimination and the present offences. He went on to state that this was still a factor he could consider. Schreck J. stated at paragraph 28,

I agree that the type of causal connection described in Morris has not been established in this case. However, no such casual connection is required in order to make the consideration of systemic racism relevant to an offender’s degree of responsibility: Morris, at para. 94. In this case, Mr. Ahmed had a disadvantaged background. He was born in a war-torn country, came to Canada as a refugee, grew up in poverty, was bullied in school, and did not complete his education. Many of these types of disadvantage can be directly linked to systemic anti-Black racism, as was described in a report filed in Morris, entitled “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario.” Although no such report was filed in this case, the Court in Morris observed at para 42 that much of its contents are properly the subject of judicial notice. In fact, the Court stated that it “bears reading and re-reading by those called upon to prosecute, defend, and sentence Black offenders, particularly young Black offenders”: Morris, at para. 43.

55In the case at bar, while I do not have any evidence about Mr. Crawford’s exposure to anti-black racism and no link to these offences, I can and do take judicial notice of the presence and prevalence of anti-black racism in our society and the over representation of black men in our criminal justice system. As a black male growing up in poverty and in a number of different high crime neighbourhoods (as expressed by Mr. Crawford in his affidavit), I can take judicial notice of the prevalence of anti-black racism and its impact generally on those that experience it. This does not mean that Mr. Crawford should not be held responsible for his actions, As Schreck J. went on to note in Ahmed, and I make the same observation here, Mr. Crawford still made the decision to join his acquaintances in committing two different robberies, one of which was a home invasion robbery with a loaded firearm and he should be held accountable for this.

56The final mitigating factor I need to address is Mr. Crawford’s experience in pre-trial custody. Mr. Crawford filed an affidavit with this court that outlined his experience in pre-trial detention. According to Mr. Crawford he has been in custody since December 28, 2019. In his affidavit sworn October 27, 2021 Mr. Crawford wrote that over the 662 days he has been in pre-sentence custody, he had been subjected to 321 days of full lock down. This comes to 10 and a half months in lock down. In other words, almost 50% of his time in custody has been in lockdown. Mr. Crawford stated that he did not keep track of the partial lockdowns. I therefore do not know how many partial lock downs there were in the TSDC. According to Mr. Crawford’s affidavit, on one occasion he was locked down for 14 days in a row. On another, he was locked down for ten days in a row. On two occasions he was locked down for nine days in a row and on one occasion he was locked down for eight days in a row. On seven occasions he was locked down for six days in a row and on six occasions he was locked down for five days in a row. On 11 occasions he was locked down for four days in a row and he was locked down for two days in a row on 29 occasions. He was also locked down for three days in a row on 9 different occasions. Crown counsel urged me to reject Mr. Crawford’s evidence on the total number of lock downs as it was contradicted by the jail. He argued that the jail is inherently more reliable that Mr. Crawford. Respectfully, I disagree. Despite being asked for their records on Mr. Crawford and the lockdowns as they relate to him, the TSDC only provided a summary to the Court. This document indicated that Mr. Crawford had been in custody for 648 days and that of those dates he was locked down for 232.3 days. The jail did not provide any information about how they came to these calculations nor did they provide the raw data from the jail so that their calculations could be meaningfully assessed. Mr. Crawford, on the other hand, seems to have recorded all the lock downs at the request of his lawyer and was able to identify the actual days he spent in lock down. For example, according to Mr. Crawford’s records which were attached to his affidavit, for the month of September, Mr. Crawford was locked down on the 3,5,9, 12, 13, 17, 18, 19, 20, 21, 22, 23, 24, 25,26,27,28,29 and 30th. Given the detail provided by Mr. Crawford I have no difficulty accepting his evidence about the number of days he spent in lockdown at the jail. I therefore accept Mr. Crawford’s evidence that he was subjected to 321 days of full lock downs from December 29, 2019 until October 27, 2021 and some unknown number of partial lockdowns. I further accept his evidence that during the lockdowns he had no access to showers or the phone. I further accept his evidence that this created issues with communicating with counsel. Access to fresh air and with maintaining proper hygiene.

57In addition to the lock downs, Mr. Crawford had to deal with the stress around Covid-19 including the fact that on occasion he was not provided with adequate protective gear and soap to wash his hands. There was increased stress in the unit due to Covid. This had a direct effect on Mr. Crawford. While in custody he started to have chest pains and was taken to hospital because of the pains. He has since been placed on anti-anxiety medication to help him address his anxiety.

58This is not the first-time inmates have complained about the lockdowns and the punitive conditions at the south detention centre. In R. v. Persad, 2020 ONSC 188, Schreck J. provided a detailed review of cases where the TSDC has been condemned for the conditions there. Citing from R. v. Fermah, Schreck J. stated,

Mr. Fermah was housed in completely unacceptable conditions. There were frequent lockdowns resulting in an undue deprivation of his liberty, privacy and well-being. Those days of lockdown amounted to something approaching 40% of his time in custody, or close to a year. That kind of treatment is not in keeping with the humane system of corrections to which we aspire. It is not to be tolerated or simply treated as what we now expect from Toronto South.

R. v. Fermah, 2019 ONSC 3597 at para. 68

Later in the same paragraph Schreck J., cited from R. v. Innis, 2017 ONSC 2779 at para. 38,

I note that the United Nations Standard Minimum Rules for the Treatment of Prisoners provides that every prisoner should have at least one hour of suitable exercise in the open air daily. Mr. Inniss was denied access to fresh air for over one-third of the time he was in custody (159 days at the Toronto East Detention Centre and 214 days at the Toronto South Detention Centre based on the number of full day lockdowns). It is shocking that detention centres in Toronto in 2017 are consistently failing to meet minimum standards established by the Unite Nations in the 1950’s.

59More recently, in R. v. Ahmed, supra, Schreck J. commented on the failure of the jails to respond to the continued complaints. He stated, “ In my view, the Ministry of the Solicitor General’s refusal to ameliorate the conditions at the TSDC in the face of a mountain of judicial criticism and the findings of the OHRC is an affront to the administration of justice”.

60Pursuant to R. v. Duncan, 2016 ONCA 754, a sentencing judge is entitled to consider harsh conditions of pre-sentence custody when determining the appropriate sentence. In the years following R. v. Duncan, judges would frequently quantify the reduction in sentence that would be granted in light of the pretrial detention conditions. For example, in R. v. Persad, supra, Schreck J. determined that Mr. Persad was entitled to one and a half days of credit for each day he spent in lock down. He came to this conclusion after reviewing in detail the lockdown issues at the Toronto South Detention Centre (TSDC) and noting that the Crown stated that “enhanced credit given because of the conditions at the TSDC has tended to be between one half and one day of each day spent in lock down in addition to the usual credit for presentence custody”.

61Recently, in R. v. Marshall, 2021 ONCA 344, [2021] O.J. no. 2757 (C.A.), the Court of Appeal clarified how judges are to treat exceptionally punitive conditions of pre-sentence detention that “go well beyond the normal restrictions associated with pretrial custody” (see R. v. Marshall at para. 50). It is not to be a straight deduction from the appropriate sentence. Instead, it is to be treated as a mitigating factor only. The court stated at paragraph 52,

The ‘Duncan’ credit is not a deduction from the otherwise appropriate sentence but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

62In R. v. Marshall, supra, the court went on to state that while it is not an error per se to quantify the months given as “Duncan” credit, sentencing judges need to make sure they do not improperly treat this as a deduction from the appropriate sentence. The appellate court warned about the risk of giving the Duncan credit too much significance such that it leads to an inappropriate sentence.

63In the case at bar, Mr. Janzen urges me to place little weight on this mitigating factor and argued that when all the factors are considered together, the conditions of detention should not impact the ultimate sentence.

64In my view, the overly harsh presentence custody that Mr. Crawford has been subjected to must be considered to ensure that the sentence I ultimately impose is proportionate and tailored to the individual circumstances of Mr. Crawford (R. v. Persad, supra at para 27).

65Having identified the relevant mitigating and aggravating factors, I now turn to the range of sentence normally imposed for similar offences.

66The range of sentences for robberies is very broad. This accounts for the broad range of activities associated with a robbery. In the case at bar, the robbery of Mr. Saba is best described as a home invasion robbery with a restricted firearm. Mr. Crawford and two other males entered his condominium and at gunpoint robbed him of his belongings. In addition to the threat of the firearm, one robber told the person holding the firearm to shoot and one of the robbers punched Mr. Saba multiple times even though Mr. Saba was being compliant with their demands. Mindful that a home invasion robbery is a statutorily aggravating factor, the range of sentence normally imposed for this kind of offence is 4-5 years at the low end and 11-13 years at the upper end ( R. v. Mills, [2014] O.J. No. 1568 at paragraph 76 (SCJ). Offences involving a home invasion and firearm, often involve sentences in excess of nine years (R. v. Mills, supra, at paragraph 77). In R. v. Willmott [2015] O.J. No. 2100 (C.A.), the appellate court identified the range of sentence for home invasion robberies as being anywhere from four to thirteen years.

67In R. v. Mills, supra, Mr. Mills received a sentence of six years for his role in a home invasion robbery with a loaded firearm where the firearm was in fact discharged. Like Mr. Crawford, Mr. Mills was not involved in the planning of the robbery. Instead he joined the group of robbers after the plan had been made. In some respects, the robbery that Mr. Mills was involved in was more aggravating as a firearm was actually discharged and the robbers were masked. Having said that, Mr. Mills did not set foot in the residence. He remained in the getaway car to help with the escape. Mr. Crawford, on the other hand, was inside the residence and fully participated in the robbery. Mr. Hylton, one of Mr. Mills’ co-accused and the offender who fired the gun at one of the victims during the robbery, received a ten year global sentence and the third co-accused, Mr. Dennis, who actively committed the robbery but did not fire the gun received an eight and a half year sentence. In my view, Mr. Crawford’s overall culpability falls somewhere in between Mr. Mills and Mr. Dennis.

68In R. v. Rose, [2013] O.J. No. 1257 (SCJ), Mr. Rose was convicted of a home invasion robbery as a party, not a principal actor. He received a six-and-a-half-year sentence for his role in the robbery. In R. v. Goulbourne, [2019] O.J. No. 3020 (C.A.) a sentence of seven and a half years for a home invasion robbery with an imitation firearm was upheld. The facts of Mr. Goulboune’s robbery are arguably more aggravating in that in addition to being threatened at gun point by one of the robbers, Mr. Goulbourne punched, kicked and choked the victim. I should note, however, that the sentence of seven and a half years took into account the principle of totality as Mr. Goulbourne was already serving a sentence for a bank robbery when he was sentenced for this home invasion robbery.

69In my view, without considering the mitigating factors outlined above, the correct sentence range for Mr. Crawford in relation to the home invasion robbery of Mr. Saba would fall in the seven-year range. This sentence takes into account the serious nature of the home invasion robbery and his active participation in it while also recognizing that Mr. Crawford did not plan the robbery and that he did not personally possess the firearm.

70The range of sentence for the other robbery is anywhere from 18 to 36 months depending on the personal circumstances of the individual. I was advised that the co-accused received a 26-month sentence for this role in this offence. As I understand from Mr. Crawford’s affidavit his role in that robbery was somewhat less than his co-accused in that Mr. Crawford did not plan the robbery and only joined in last minute. In my view a sentence in the range of twenty to twenty-four months would be an appropriate sentence for Mr. Crawford for this offence given his prior record and his level of involvement.

71In assessing the overall sentence, I must be mindful of the principle of totality. This is a difficult area for sentencing judges in deciding just how to approach the issue. In R. v. Jewell, 1995 CanLII 1897 (ON CA), 100 C.C.C.(3d) 270 (Ont.C.A.), the court held that when a sentencing judge is faced with multiple offences, the court must first identify the gravamen of the conduct “giving rise to all of the criminal offences, and next determine the total sentence to be imposed. Having determined the appropriate sentence, the trial judge should impose sentences with respect to each offence which result in the total sentence, and which appropriately reflects the gravamen of the overall criminal conduct. (at paragraph 85 see also R. v. R.B., 2013 ONCA 36 and R. v. Ahmed, 2017 ONCA 76).

72In my view, the gravamen of the overall criminal conduct, without considering the mitigating factors outlined above and the remedy for the Charter breach, is a sentence in the range of seven years. When I consider the aggravating factors including the multiple offences, the fact that a firearm was used, the fact that the robbery on Mr. Saba was a home invasion robbery and that Mr. Crawford has an extensive criminal record, the only conclusion is that a global sentence well over the minimum sentence of five years is necessary to address the objectives of deterrence and denunciation. A sentence in the range of seven years would likely be appropriate taking into account the principle of totality. When I balance in the significant mitigating factors including the Charter breach linked to the violation of section 503 of the Criminal Code and the extremely punitive conditions that Mr. Crawford has been subjected to over the past two years, it is my view that a sentence slightly above the minimum sentence is appropriate. In my view, a five years and three months is the appropriate sentence in this case. I appreciate that a sentence just over the mandatory minimum seems lenient given the seriousness of the offences committed by Mr. Crawford but in my view it is the appropriate sentence when one factors in the significant mitigating factors that exist in this case, in particular the remedy for the s. 9 Charter breach and consideration of horrible conditions of detention at the TSDC.

Disposition

73Mr. Crawford will be sentenced to five years and three months incarceration for the 344(1)(a) offence, a two year sentence to be served concurrently on the robbery at the Poker Club and a one year sentence to be served concurrently will be imposed for the breach of a prohibition order under s.117.01 of the Criminal Code.

74Mr. Crawford will receive the usual credit of one and a half days for each day of the 725 days he has spent in pre-sentence custody pursuant to R. v. Summers, supra. This comes to 1087 days or put another way, 10 days less than three years). Mr. Crawford therefore has two years, three months and ten days remaining on his sentence.

75There will be order made pursuant to s.109 of the Criminal Code for life and a DNA order on all counts.