R. v. Brooks, 2022 ONCJ 242

Ontario Court of Justice

Date: 2022-05-24 Court File No.: Halton 20-1195

Between:

HER MAJESTY THE QUEEN

— AND —

TYRIQ BROOKS

Reasons For Sentence

Before Justice A. Calsavara

Released on May 24, 2022

Counsel: Carly Eastwood, counsel for the Crown Talman Rodocker, counsel for the accused Tyriq Brooks

CALSAVARA J.:

Introduction

1The defendant, Mr. Brooks, was charged with several counts relating to five bank robberies with a firearm and one car jacking at gun point spanning from December 24, 2019 to January 22, 2020. He was also charged with offences relating to the possession of a prohibited firearm—a 9mm Glock, loaded with 12 rounds of ammunition which was found in his possession at the time of his arrest on February 11, 2020. Related was a charge of breaching a weapon prohibition order.

2Following a lengthy trial on January 4, 2022, I found Mr. Brooks guilty of several offences pertaining to three of the bank robberies as well as charges related to possession of the Glock on February 11th, 2020. I found that the handgun used by Mr. Brooks during the robberies was a real firearm.

Circumstances of the Offences

I. December 24, 2019 Robbery Bank of Montreal [BMO] in Kitchener

3I found two masked men carried out a robbery at the BMO in Kitchener at 2:24pm on December 24, 2019. One of them was Mr. Brooks. He was armed with a handgun. This bank was in a plaza in a built-up, busy area of the city. When the two men entered the bank, there were seven bank employees, a security guard and two customers who were all controlled by Mr. Brooks at gun point while he demanded money from bank staff. He yelled ‘where’s the money where’s the money’. While maintaining control of the occupants of the bank with his gun, Mr. Brooks jumped over the counter, joining his accomplice who was searching through drawers for the money.

4While still controlling the 10 people inside the bank, Mr. Brooks jumped back over the counter and ran to the door to grab hold of a female patron who entered the bank while the robbery was in progress. He forced her to the ground then jumped the counter again.

5CCTV footage capturing the robbery shows some of the other bank employees, customers, and security guard standing on the customer side of the branch with their hands up.

6Meanwhile Mr. Brooks and his accomplice continued to make demands of the staff behind the counter. Mr. Books pointed his gun at Ms. Malloy’s head. She is a bank employee who was working behind the counter serving customers that day. Ms. Molloy explained that the money was in a centralized unit which required combinations from two employees and was set on a two minute timer. She started the timer. While the assailants waited for this timer, the gun man--who I found to be Mr. Brooks—pointed the gun at her head accusing her of lying, saying “you didn’t start it’. Ms. Malloy assured him she did, noting the red flashing light on the machine.

7Ms. Molloy described that at this point the situation was escalating. She felt the tension rising. She was scared she was going to be shot.

8She told them she could give them $2000 because she could key that in her computer on her own to trigger the central unit to immediately dispense the cash.

9Ms. Koreck, another bank employee, described that the gunman – that is Mr. Brooks – was getting angry that they were not moving fast enough. Mr. Brooks told her he had a gun, patted it against her side and said “you know that it is a gun right?” He pointed it at her stomach.

10As the unit started to dispense money, the two assailants suddenly in unison stopped what they were doing, put their heads up fast, jumped over the counter and ran out of the bank without the cash.

11Two and a half minutes after they had entered, the two assailants ran out of the bank and into a waiting Hyundai Elantra. This was witnessed by a police officer who responded to the call. The Hyundai now with the assailants inside it was face to face with the police cruiser. It quickly reversed as the police vehicle pursued it – lights and siren on—through the parking lot and out onto the city streets. During this pursuit the Hyundai drove erratically, ran a red light, entered into another plaza where it drove up on the sidewalk before exiting back on to a city street. The police pursued the Hyundai for 15-20 seconds before the chase was discontinued for public safety reasons.

12The men drove and parked the Hyundai on a street in a nearby subdivision, removed the stolen plates and left in another vehicle.

13The police discovered the Hyundai before the robbers could return to retrieve it. Mr. Brooks had privately rented this vehicle from his godfather.

II. January 16 Attempted Robbery HSBC Burlington & Robbery at Scotiabank Cambridge

14The second and third group of offences Mr. Brooks is being sentenced on relate to two armed robberies committed on January 16, 2020: one an attempt at the HSBC in Burlington in the afternoon and the other in the early evening at Scotiabank in Cambridge.

15Earlier in the day, Mr. Brooks met up with an accomplice or accomplices to prepare for these robberies and traveled from Mississauga to Toronto. Once there, Mr. Brooks participated in the theft of a licence plate from a vehicle in a parking garage to place on the car he used to travel to and from the bank.

16Using that vehicle affixed with the stolen plates, Mr. Brooks arrived at an HSBC bank on Appleby line in Burlington. He was masked and armed with a pistol. While armed Mr. Brooks approached the bank with his compatriot—a young person—M.O.

17Due to the rise of robberies, this bank employed a security guard at the door who kept the inner door from the vestibule locked, except where required to allow a customer in or out of the bank.

18Around 4:30 that afternoon, Mr. Brooks while masked ran toward the door, yelling ‘open it’ and pointed a pistol at the security guard. CCTV footage captures the masked assailant with his right arm outstretched pointing the barrel of the gun at the security guard as the guard swiftly retreats further into the bank away from the locked door, denying the robbers entry.

19After rattling on the door and unsuccessful in their attempt to gain entry, Mr. Brooks fled in a Hyundai sedan with the stolen plates.

20That same day, Mr. Brooks and his accomplice, M.O– who is a young person -- successfully robbed another bank at gunpoint, this time at a Scotiabank in Cambridge.

21Mr. Brooks was armed with a firearm. He along with M.O. entered the bank at 7:50pm. There were five employees and three customers in Scotiabank at the time. Mr. Brooks pointed his gun at the staff and patrons to control them and made demands. He yelled “everyone get down’ while his accomplice jumped the counter and looked through drawers for cash. Mr. Brooks demanded that the patrons and staff get down on the floor. He also intermittently jumped the counter back and forth to affect the robbery. The men wanted the tellers to go to the vault and unlock it – but that requires two employees and two combinations. After a brief back and forth discussion about this, Mr. Brooks yelled at a teller who was sitting on the ground behind the counter in response to his gun point demand. He told her to get up or he would shoot her head off.

22Ultimately the bank staff opened the vault allowing Mr. Brooks and his accomplice access to the cash, which they stole before running out of the bank, successfully escaping with $94,000 in a combination of EUROS, Canadian and US dollars.

III. February 11, 2020 Firearm Possession

23Mr. Brooks was arrested at gunpoint on February 11th, 2020 in a Mississauga plaza. He was travelling in a car with two other males – one of whom was his accomplice, from the January 16 robberies – a youth named M.O.. Each of the three males were in possession of a loaded pistol.

24Mr. Brooks had a 9 mm Glock 26 GEN 5, loaded with 12 rounds inside the magazine. The magazine itself had the capacity to hold 15 rounds, making it a prohibited device. The bullets were a combination of one jacketed round-nose, four hallow-point, and seven polymer-tipped hollow point. The serial numbers on the gun had been scratched off.

25His Glock had a short barrel length of 87 mm, making it a prohibited firearm.

26In addition to this point in time possession of a handgun, an extraction of the media on Mr. Brooks’ Iphone showed him in possession of loaded firearms at other times, including guns different than the one he had on arrest.

27There were two videos extracted from his phone, one dated January 19, 2020 and the other January 31, 2020 which depict Mr. Brooks handling and posing with three different firearms than the one he was arrested with, including a Glock with a long extended magazine. There were also several photos of handguns posed together with its ammunition on Mr. Brooks’ phone – including both the Glock he had upon arrest and the Glock with the extended magazine he handled in the video.

Circumstances of the Offender

28Mr. Brooks is 23 years old and was only 21 years of age at the time of his arrest. He has the support of his mother and his sisters. His mother, Natalee Brooks lives in a home in Mississauga with her daughters—a home that has been open to Mr. Brooks to live in. He is Natalee Brooks’ only son. Although disappointed in her son’s behaviour, Ms. Brooks speaks highly of her son. She describes him as well-mannered, well-liked and the ‘life of the party’. He loves basketball and dreams of one day owning his own business. She believes her son is remorseful and willing to change for the better.

29I am advised that that Mr. Brooks completed high school.

30Ms. Brooks is a single mother. Mr. Rodocker in noting that Ms. Brooks is a single mother, submitted that Mr. Brooks as young black male in these circumstances had significant challenges. While I accept that these circumstances contributed to challenges faced by Mr. Brooks growing up, I know very little about Mr. Brooks’ personal circumstances.

31Mr. Brooks has a criminal record which began in his youth. It starts in 2012 with entries for assault/theft for which he received a disposition of community service hours.

32In 2016, Mr. Brooks obtained another assault entry and was placed on probation for 12 months and ordered to complete 15 hours of community service.

33In 2019, still as a youth Mr. Brooks received an entry for receiving a material benefit from sexual services provided by a person under 18 years of age. It is unclear what Mr. Brooks’ sentence was for this youth entry. Mr. Brooks’ CPIC record was incomplete, however it appears to have been a concurrent sentence with adult charges of a similar nature.

34Court records filed at sentencing demonstrate that Mr. Brooks was convicted in Kingston on November 13, 2019 by Justice Tranmer of the Superior Court for receiving a material benefit, procuring a person to provide sexual services for consideration, and a fail to comply count. After serving 333 days of presentence custody credited at 500 days, Mr. Brooks was sentenced to time served plus 18 months probation.

35Finally, on November 15, 2019, Mr. Brooks was convicted in Newmarket of fail to comply with a recognizance and was sentenced to one day jail.

36From the time of his arrest on these charges on February 11, 2020, Mr. Brooks remained in custody until he proceeded with a bail hearing at first instance and was granted bail on December 23, 2021. This amounts to 681 days of pre-sentence custody, all spent during a time when pre-sentence custody was exceptionally punitive and harsh. He spent the greater part of the COVID-19 Pandemic at Maplehurst Correctional Complex. I accept that the restrictive conditions in Maplehurst and the health risks brought on by COVID-19 had a significant impact on Mr. Brooks. Inmates had limited access to basic human needs, like showers, phone calls, visits and exercise. Excessive lockdowns were instituted because of increased staff shortage and isolation protocols. Mr. Brooks has also filed his own affidavit outlining the impact of these conditions. He also filed a lockdown summary prepared by the institution. Of those 681 days, Mr. Brooks was on full lock down for 289 days and on partial lock down for 47 days for a total of 336 days affected by lockdowns – which amounts to about 42% of the total time spent in presentence custody.

Impact on the Victims

37Mr. Brooks’ crimes had a profound impact on the bank employees who were robbed at gunpoint. The Crown filed victim impact statements prepared by five of the affected bank employees.

(i) Laura Benoit (employee at Scotiabank, Cambridge)

38Ms. Benoit wrote, “I fear the branch after dark now since the robbery. My stomach gets sick and I feel very nervous around closing time. Whenever I hear a loud bang or someone is rushing into the bank or is very loud I get physically sick and freeze. I fear the worst. My body tenses in fear and irrational thought of being hurt, shot or placed in some form of danger. l am waiting and expecting for another robbery to occur. I no longer feel safe at work. I now fear the bank when I am in it.”

(ii) Patricia Koreck (manager at BMO, Kitchener)

39Ms. Koreck wrote, “[t]here are many times in my life now where I have declined to be out with my friends and family. I am such a sports fan. Loved going to games either hockey or football. I now find myself nervous and anxious. I am scared there will be sudden loud noises or even worse someone coming towards me that I am not aware of till they are there…” Ms. Koreck has declined doing the things she and her husband used to enjoy. Her family all worry about her. She reported that she has been going to counselling and is suffering from PTSD. She noted, “[t]he day it happened was suppose to be a beautiful family day celebrated by loved ones and making many traditional memories. NOT being terrified getting home 3 hours after I was suppose to...my children waited at my home that day..so worried about what their mother was going to be like when she got home after what happened. Crying, and having my mom hold on to me for dear life as she was terrified of what she was told that day.”

(iii) Faye Malloy (employee at BMO, Kitchener)

40Ms Malloy wrote, “[t]his incident has emotionally and mentally taken its toll on me, I'm not sure I will recover even after having therapy for nearly 2 years. So many people and their familys [sic.] were affected and Christmas will never be the same for most of them. It took away so much. My father had just died 6 months before the incident from ALS, and my mother was dying of pancreatic cancer. She died the following March. The incident had made me so depressed that I couldn't grieve properly for my parents. With my depression it affects everyday of my life, going to work is unbearable some days, just wondering if it will happen again is in the back of mind most of the time, and most of my interests are non exsistant [sic.] at this point in time.”

(iv) Lori Rowe (employee at Scotiabank, Cambridge)

41Ms. Rowe reported, “I am writing this 2 years after the incident and can say this. In the days following the robbery I found it very difficult to go back to work, but I forced myself. It was the way in which I was raised, bad things happen, but you have to pick yourself up and carry on or the bad things will consume you and take over your life. With the support of my friends, my church family and my family I returned to work. It was and is still very difficult. We are still working with the protection of a guard which helps. But I still fear every time someone comes in with a hood covering their face, and a mask (and let's face it everyone is wearing a mask these days) that it is happening all over again. I look forward to the day I no longer live in fear, if that day will ever come.” She further noted that she lives in fear every day that “this could (and probably will) happen again.”

(v) Sheila Sulyok (employee at Scotiabank, Cambridge)

42Ms. Sulyok reports, “[a]fter 17 years at the Bank, my career is over. Multiple therapists have concluded that I cannot return to work at the Bank, due to the trauma that the robbery caused. For a long time I could not even drive by the Bank. Even now, two years later, I get very anxious when I have to do in-person banking. I still do not sleep well, and wake up because of nightmares caused by the robbery.” Ms. Sulyok, moreover, described that she saw a counsellor for almost two years because of continuous headaches as a result. She continues to struggle with sleep due to nightmares. She continues to pay for therapy out of pocket as her benefits have expired.

Position of the Parties

43Both parties agree that deterrence and denunciation are primary objectives in the sentencing of Mr. Brooks. A significant custodial sentence is warranted. A five year minimum applies to each of the counts of robbery with a firearm. Mr. Brooks committed three robberies with a handgun. A handgun like the one used would either be a restricted firearm or prohibited one thus triggering the five year minimum prescribed by s.344(1)(a)(i) of the Criminal Code.

44The parties agree as well that either totality or concurrency must be applied otherwise the overall sentence would be too harsh and unnecessary.

45The Crown seeks a global sentence of 10 years, apportioned as six years for each robbery with a firearm concurrent to each other, plus three years for possession of the loaded firearm on upon arrest consecutive, plus one year consecutive for possessing this firearm while bound by a weapon prohibition order; and suggests that the sentence for any of the remaining counts be served concurrently.

46The Crown relies on Justice Spies’ decision in R. v. Lira, 2021 ONSC 8294, paragraphs 124-125. Mr. Lira was convicted of one armed robbery and for offences relating to his possession on the day after the robbery of the same firearm used in the commission of the robbery. Consecutive sentences were imposed.

47In addition, the Crown seeks a number of ancillary orders: A DNA order, a lifetime s. 109 weapon prohibition order, a forfeiture order for property seized off Mr. Brooks and at his home, including $1200 USD, and a 743.21 non-communication order encompassing 20 names. The names include the victims of the offences Mr. Brooks was convicted of as well as alleged accomplices, including Mr. Brooks’ girlfriend.

48Mr. Rodocker does not take issue with the ss. 95 and 117 charges being consecutive but submits that it is within my discretion as the sentencing judge whether the gun offences be served consecutive or concurrent. At the end of the day, that the overall sentence is the appropriate one is most important – whether totality in effect is applied upfront in the imposition of concurrent sentences or in determining the individual or total quantum of sentence. The defence also takes no issue with the ancillary orders – except in so far as M.O. and Mr. Brooks’ girlfriend are included in a non communication order.

49While the defence agrees that deterrence and denunciation are important, Mr. Rodocker submits they cannot overwhelm the sentencing objective of rehabilitation. While Mr. Brooks has been sentenced to a custodial sentence before as an adult, this will be his first penitentiary sentence. Mr. Brooks is a youthful offender. The principle of restraint must play a role in the fashioning of Mr. Brooks’ sentence.

50Moreover, given Mr. Brooks age and familial support, the defence asserts that Mr. Brooks has clear and obvious prospects of rehabilitation.

51Lastly, given the exceedingly harsh pre-trial custody conditions, Mr. Brooks’ sentence should be reduced for Duncan credit – whether it is distilled to a calculation or not – Mr. Brooks’ overall sentence should be lower than would otherwise be appropriate. Ultimately, for all the charges, the defence submits, a global six and half year prison term minus the usual Summers pre-sentence credit is a fit one in this case.

The Governing Principles and Appropriate Sentence

1. Purpose, Objectives and Principles of Sentencing

52The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

• To denounce unlawful conduct;
• To deter the offender and others from crime;
• To separate offenders from society where necessary;
• To assist in rehabilitating offenders;
• To provide reparations for harm done to the victims and community; and
• To promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and community.

53A sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender.

54Section 718.2 of the Criminal Code sets out principles of sentencing which in addition to setting out statutory aggravating circumstances, essentially prescribes that a sentence should be reflective of all the aggravating and mitigating circumstances in a given case and emphasizes parity and restraint where possible.

55Nonetheless, sentencing is a highly individualized exercise. A court must focus on fashioning a sentence that fits with the gravity of the offence, the moral blameworthiness of the offender and the harm caused by the offences.

2. Range of Sentence for these Offences

56Robbery carries a maximum sentence of life imprisonment. The range of sentences for robbery generally span from a non-custodial sentence to life imprisonment. Robberies like those committed by Mr. Brooks – of a financial institution and with a firearm generally attract significant penitentiary sentences: See R. v. Asif, 2020 ONSC 1403.

57In Asif, Stribopolous J. noted:

42 Robberies involving firearms have historically resulted in significant penitentiary sentences. That was the case long before Parliament legislated a mandatory minimum sentence for robbery with a firearm: see R. v. Sullivan (1972), 9 C.C.C. (2d) 70 (Ont. C.A.), at p. 70 (noting, almost fifty-years ago, that: "10 years is a proper sentence in the normal case of armed robbery"). Robbery with a firearm is an especially grave offence because of "the threat to human life that is represented even by the accidental discharge of the firearm": R. v. Cadieux (1983), 1 O.A.C. 115 (C.A.), at p. 118.

43 In Cadieux, the Court of Appeal emphasized the offender's "extreme youth" in imposing a four-year sentence, but observed that for a more mature offender, even with no prior criminal record"a lengthy penitentiary sentence" would be required: Cadieux, at p. 18. For example, in R. v. Sanko, [1998] O.J. No. 1026 (Gen. Div.), a 24-year-old offender pleaded guilty to two counts of robbery with a firearm, possession of two stolen vehicles used in perpetrating each of the robberies, and one count of possession of a prohibited weapon used to commit the robberies. The offender held up a gas station and a fast food outlet with a sawed-off shotgun. The offender came from a broken home and had a lengthy criminal record. The Court of Appeal ultimately substituted a sentence totalling six years of imprisonment in place of the eight-year sentence initially imposed: R. v. Sanko, [2000] O.J. No. 3694 (C.A.).

44 The case law also recognizes that banks are especially tempting targets for would-be robbers because they have large amounts of cash on hand. Given this, the need for general deterrence has led the Court of Appeal to impose lengthy penitentiary sentences for bank robberies, even for those involving imitation rather than actual firearms: see, for example, R. v. Marsh, 2008 ONCA 374 (six years for bank robbery using imitation firearm); R. v. Nembhard, 2010 ONCA 420 (seven years for robbery of one bank and attempted robbery of another, both using an imitation firearm and disguise); R. v. Abdi, 2014 ONCA 520 (seven-and-a-half years for four bank robberies involving an imitation firearm).

45 Bank robberies involving firearms, even absent physical injuries, can result in double-digit penitentiary sentences: see, for example, R. v. Caceres, 2012 ONSC 5214 (ten-year sentence imposed on two youthful offenders who had prior criminal records who pleaded guilty to five bank robberies involving loaded firearms).

58I have also reviewed the sentencing judgments provided by defence counsel including: R. v. Abdi, 2011 ONSC 4165, R. v. T.W., 2010 ONCJ 338 and R. v. McEwan 2018 ONCJ 541. And I have reviewed those provided by the Crown: Asif, supra, and R. v. Lira, 2021 ONSC 8294. Ms. Eastwood, on behalf of the Crown, also provided the sentencing judgment in Abdi, supra – a decision, I note, that was upheld on appeal: 2014 ONCA 520.

59Turning to the gun possession charges, the s.95 conviction in these circumstances warrants a prison sentence in the penitentiary range. In R. v. Johnson, 2022 ONSC 2688, Justice Goldstein recently thoroughly reviewed the appellate authorities and recent trial level decisions in Ontario and concluded at paragraph 38:

38 In my respectful view, the usual sentence for possession of a loaded, prohibited handgun contrary to s. 95(1) of the Criminal Code is in the range of two to four years. Certainly, a penitentiary sentence is the starting point. Cases at the lower end of the range are reserved for first offenders who are not carrying the weapon in public or using it for a nefarious purpose, such as to protect a drug trafficking business. Obviously those cases where an offender is on bail for another offence, or carries or abandons the firearm in public, or uses it in conjunction with drug trafficking will attract a sentence at the higher end of the range. Cases such as Filian Jiminez, where a reformatory sentence was imposed, are reserved for exceptional circumstances.

60I would also conclude that the usual range for a first s. 95 offence is two to four years incarceration.

3. The Aggravating and Mitigating Factors

61The cases provided give some direction as to the appropriate sentence, however, Mr. Brooks’ sentence must be considered on the particular facts and circumstances of this case and the degree of Mr. Brooks’ moral blameworthiness. No two cases are alike.

62In determining the fit sentence for Mr. Brooks, I consider the following aggravating circumstances:

• His crimes targeted vulnerable victims—those who are employed by banks, an institution known to hold large amounts of cash on site.
• The robberies were planned and relatively sophisticated. Mr. Brooks scoped out ideal locations to rob. His phone contained numerous screen shots of internet searches of banks including those robbed, in advance of the robberies. The robberies involved other crimes as preparatory steps, including theft of plates. Vehicles were acquired to commit them in. Accomplices were used to assist in the principals’ commission of the robberies. Clothing and masks were used to obscure their identifies. Firearms were obtained. These are mere examples of the steps and effort employed to prepare for these crimes and the acquisition of assets involved.
• A firearm was used in the commission of the bank robberies as a tool to control and forcibly confine victims inside the banks, including both staff and patrons.
• There were multiple victims involved in each robbery.
• Mr. Brooks threatened to shoot three different victims during the course of separate robberies, gratuitously terrorizing them.
• The profound impact on the victims. Victims from both BMO and Scotiabank were terrified at the time of the robbery. The experience has had long lasting effects. Several of the employees are still scarred by the incident.
• Mr. Brooks’ significant role in the robberies. He was a principal and main actor. In all three robberies he was the gunman. He was the one who wielded the firearm; he was the one who threatened to shoot; he was the one who forcibly confined staff and patrons at gun point.
• Mr. Brooks’ criminal record which includes entries for assaults as a youth and for sexual services offences, including procuring and receiving a material benefit as an adult—which also by their nature target vulnerable victims. Mr. Brooks had just been released from custody following his last conviction a month and a half before committing a bank robbery while armed with a firearm in the BMO on December 24, 2019.
• Mr. Brooks was on probation for sexual services offences, including procuring and receiving a material benefit during the commission of these offences.
• Mr. Brooks was bound by a weapon prohibition order during the commission of these offences.
• Regarding the December 24 robbery, I consider the manner of get away to be aggravating. As they fled the bank, the assailants were pursued by the police as the get away vehicle was driven in a sustained dangerous manner in two plaza parking lots and on the city streets. The vehicle went up on a sidewalk in the plaza and ran a red light in a built-up busy retail area of the city of Kitchener. While I cannot find beyond a reasonable doubt that Mr. Brooks was the driver at the time, he was an intricate part of the plan. He rented the vehicle. He was a principal in the commission of the robbery and was part of the get-away. In short, his plan, his actions, were integral to this added reckless and dangerous behaviour which compromised the safety of the community.
• Despite his near apprehension on December 24 by the police and a car chase which the police had to abort due to public safety, Mr. Brooks remained undeterred and instead committed further serious offences, including other robberies on January 16. After his first attempted robbery at gunpoint in Burlington that day, again Mr. Brooks’ was undeterred and persisted and robbed a bank later that day.
• The amount stolen during the robbery at Scotiabank –estimated at $94,000 in a combination of currencies.
• His motives. This is not a case in which the bank robber was an addict, gambler or had some other issue making the crime an act of desperation, but rather one motivated by greed. I note as well, after the January 16 robbery, Mr. Brooks and M.O. posed in pictures with stacks of bundled money in a manner that appeared as though they were boasting about their heist
• With regard to the convictions related to the 9 mm Glock, I consider it aggravating that Mr. Brooks possessed this loaded pistol while in public and travelling in a motor vehicle. I further consider the evidence of Mr. Brooks’ commitment to and access to firearms aside from this February 11 th date. The media on his phone shows Mr. Brooks to be in possession of several different firearms including one that that has an extended magazine and one visibly loaded. I consider the additional rounds of 9mm ammunition Mr. Brooks stored in the bedroom at his mother’s home – a bedroom that was his but according to Ms. Brooks’ evidence at trial was in a state of transition for Mr. Brooks’ younger sister. Individuals who have no lawful purpose who go about the community in possession of loaded illegal semi-automatic pistols threaten the safety and security of the public. This serious social problem remains a prevalent and pressing concern in the community. Handguns of this nature and carried in our communities in this condition have one purpose – to seriously maim or kill. With the prevalence of illegal handguns, we as a society have become numb to the significant threat this poses to public safety. In, R. v. Chizanga, 2020 ONSC 4647—a sentencing judgment in a homicide case—Justice Harris aptly made this observation:

7 The primary purpose of illegal guns is to threaten, to maim and to kill. Lawyers and judges see first-hand the destruction wrought by guns. They are a disease, a plague on our communities. We have the means at our disposal to eradicate or at least to drastically curtail them. It is difficult to understand why our society would not do everything in its power to ensure that guns are not available for criminal purposes.

8 Guns empower the unempowered. A person with a gun in their hands has a god-like power over life and death. Virtually all that is necessary is to point at another person and to apply a few pounds of pressure on the trigger in order to end a human life.

9 To possess an illegal gun requires only the right connections and some money. No education, no accomplishment, no reputation in the community, no intelligence, nothing. As this case graphically illustrates, as is often true, an illegal gun could not find its way into worse hands. The disparity between the power of a gun and the preconditions necessary to obtaining it are a modern nightmare. Such immense power with so little reason must be opposed with everything at our disposal.

10 The ease of killing with a gun, as the last decades in North American have sadly shown, is an exigent danger to us all. It is difficult to understand how such a grave threat to our well-being can be allowed to continue. We have become numb to the terrible consequences. Inundation of information about mass shootings and the almost daily prevalence of horrifying news about gun deaths dulls our senses. Description of the details of individual cases is an important antidote to wake us from our complacency.

Mr. Brooks chose to arm himself in public with a loaded deadly weapon and made this conscious choice in the face of an order banning him from possessing any weapons. This must be met with an exemplary custodial sentence.

63In determining the fit sentence for Mr. Brooks, I also consider the following mitigating circumstances, including:

• Mr. Brooks is youthful (21 at the time of the arrest and is now 23).
• Mr. Brooks has the support of his mother and sisters. Although blunted by his sustained commitment to a life of serious crime as demonstrated by his escalating criminal record and the circumstances of these offences, Mr. Brooks has rehabilitative potential.
• I also take into account that Mr. Brooks faced challenges as a young black male, raised by a single mother, but I can only give this limited weight given the limited information I have about Mr. Brooks’ background, his challenges and their impact.
• Mr. Brooks’ guilty plea to the charges from February 11 related to his possession of a firearm upon arrest. However, again I give this limited weight. Mr. Brooks pleaded not guilty to all charges upon arraignment. At the close of the Crown’s case, he changed his plea to these counts. This only occurred after the Crown called all the evidence in support of these charges including the presentation of the media on his phone which contained pictures and videos of multiple firearms, some with Mr. Brooks in them. One of the photos was a JPEG image of three guns on display with visible ammunition, including one that looks identical to the handgun the police discovered in his possession upon arrest. Strategically timed guilty pleas so late in the trial once all the evidence has been heard and conviction on those counts a virtual certainty merits some consideration – accepting it as a sign of remorse – but on a limited basis. In addition to signifying remorse, guilty pleas merit credit for saving valuable resources, which would—if operative—merit significant mitigation during this unprecedented time where resources are more strained than ever due to the pandemic and the back log of cases; but it is not a factor in this plea.
• Duncan credit – Mr. Brooks spent a significant time during this pandemic in extraordinarily harsh conditions at Maplehurst. He served a total of 681 days in pre-trial custody – 42% of which was during a full or partial lockdown. Aside from being confined to a cell, Mr. Brooks was deprived of needs, programs and services.

4. The Appropriate Sentences Applied

64In determining the appropriate sentence, I have considered the objectives and principles of sentencing, and all the mitigating and aggravating circumstances. Deterrence and denunciation have some prominence in this case.

65A message must be sent to those who similarly prey on vulnerable victims who work at financial institutions, who are tempted to commit brazen, take over type robberies of bank employees at gunpoint, and who choose to arm themselves in public with deadly weapons putting the public at risk, that there are harsh consequences for engaging in this type of inherently violent and risky behaviour.

66The sentence I impose must reflect Mr. Brooks’ moral blameworthiness as well as serve the paramount considerations of denunciation and deterrence.

67Cases are also clear that I must not lose sight of the potential for rehabilitation and the principle of restraint given Mr. Brooks’ youthfulness. The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence.

68If I were to sentence Mr. Brooks separately for each of his offences, I would impose six years for each of the bank robberies. Given that the attempted robbery in Burlington was linked with the Scotiabank robbery as part of one criminal adventure on January 16, it would merit a concurrent sentence of five years. The s. 95 possession charge for the loaded Glock would warrant an additional three year sentence. The breach of the weapon prohibition order would warrant in these circumstances, given the multiple occasions, an additional fifteen month sentence.

69I consider the other offences – that is the wear disguise counts, point firearm counts, possession of stolen property counts, the occupant of a motor vehicle with a firearm count, possession a firearm with a defaced serial number -- are so closely linked to the respective robbery and/or the s.95 gun possession making them part of a single adventure, and therefore warrant concurrent terms.

70If I imposed appropriate consecutive sentences, the result would be 16 years and three months. This would crush any rehabilitative potential. Such a sentence also offends the principle of totality. It would be unduly harsh and long. It would not be commensurate with Mr. Brooks’ moral culpability.

71Upon considered reflection, having regard to all the circumstances, a global sentence of 10 years jail is proportionate and the appropriate sentence.

72This sentence will be reflected as follows:

• Count 2 – December 24, 2019 robbery with a firearm at the BMO in Kitchener – Five years. Pre-trial custody of 681 days enhanced to 1,021 days will be deducted from this count, leaving a remaining sentence on this count of 804 days which approximates 26.8 months or 2.2 years.
• Count 3 – Wear a disguise during that December 24 robbery, one year concurrent.
• Count 4 – Possession of stolen licence plates on the vehicle used in that December 24 robbery, two months concurrent.
• Count 10 – Theft of licence plates on January 16, 2020, three months concurrent.
• Count 11 - A January 16, 2020 attempted robbery with a firearm at the HSBC Bank in Burlington, five years concurrent to count 16.
• Count 12 – Point firearm during the HSBC Bank robbery, one year concurrent.
• Count 13 – Wear disguise during the HSBC Bank robbery, one year concurrent.
• Count 16 – A January 16, 2020 robbery with a firearm at Scotiabank in Cambridge, five years consecutive to count 2.
• Count 17 – Point firearm during the Scotiabank robbery, one year concurrent.
• Count 18 – Wear disguise with intent during the Scotiabank robbery, one year concurrent.
• Count 23 – Possession of a loaded prohibited firearm, three years concurrent.
• Count 24 – Possess firearm with a defaced serial number – two years concurrent.
• Count 25 – Occupant of a motor vehicle knowing there is a firearm – two years concurrent.
• Count 26 – Possession of a firearm while prohibited – 15 months concurrent.
• Count 28 – Fail to comply with probation – three months concurrent.

73This reflects a total sentence of 10 years jail less 1,021 days of enhanced pre-sentence custody, leaving a total remaining sentence of 2,629 days or 7.2 years.

74In applying Kienapple, [1975] 1 S.C.R. 729, count 14 – possession of stolen licence plates on the vehicle used in the January 16 bank robberies—is conditionally stayed.

5. Conclusion on Totality

75I recognize that the law would support my resolution of the principles of totality and proportionality through the imposition of concurrent sentences for each of the armed robberies given the applicable mandatory minimums. Ultimately, I find that the sentences for the BMO and Scotiabank robberies ought to be reflected as consecutive – they are differentiated by time, accomplices, victims and instruments used in their commission. They occurred 23 days apart. Instead, I have applied concurrency to other offences –such as the s. 117 and s. 95 offences – which would normally attract a consecutive term; and I have reduced the period of incarceration apportioned to the two main robberies in order to arrive at a proportionate sentence which reflects totality.

76I am also mindful that I have imposed a sentence that is equivalent to what the crown submits, but arrived there from a different path.

77At the end of the day, when looking at the constellation of offences and in applying the purpose, objectives, and principles of sentencing to Mr. Brooks, a 10 year global sentence, no matter the route, is the appropriate one.

78In addition to the custodial sentence imposed, I impose the following ancillary orders:

(a) A DNA order (b) A s. 109 weapons prohibition for life (c) An order, under s. 743.21 that, Mr. Brooks not communicate, directly or indirectly, with all the persons submitted by crown except for Mr. Brooks’ girlfriend, Emma Cassidy. (d) A forfeiture order as submitted by the Crown and unopposed by the defence

Released: May 24, 2022 Signed: Justice Ann-Marie Calsavara