Court File and Parties

Court File No.: 4814 998 22 4000 2363

Date: September 24, 2025

Ontario Court of Justice

Between:

His Majesty the King

— and —

Thaviphanh Thongdara

Before: Justice David Porter

Sentencing Submissions heard on: September 2, 2025

Reasons for Sentence released on: September 24, 2025

Counsel:

• D. DeSantis, for the Crown
• S. Pennypacker, for the Defendant

Overview

Overview

1In a previous decision on July 21, 2025, I found Mr. Thongdara to be a long-term offender. The matter was adjourned to hear submissions on sentence, in light of that decision. These are my reasons on sentence. The details of Mr. Thongdara's background, the details of his criminal record, and the results of the forensic psychiatric assessment of Dr Alina Iosif in her report dated July 12, 2024, and her evidence in the dangerous offender proceeding, are summarized in my decision of July 21, 2025, and form part of the evidence considered on this sentencing and will not be repeated in these reasons.

2Mr. Thongdara had 1,047 days of actual pre-sentence custody to September 2, 2025, so that as of today's date of September 24, 2025, he has 1,047 + 22 days of actual pre-sentence custody totalling 1,069 days of actual pre-sentence custody, resulting in an enhanced credit of 1069 x 1.5 = 1,604 days of enhanced credit or 4.4 years of enhanced credit, or 4 years and 145 days of enhanced credit, which is approximately 4 years, 4 months and 25 days of enhanced credit.

3Ms. Pennypacker provided records from the Toronto South Detention Centre proving that between May 4, 2022 and March 6, 2023, Mr. Thongdara was subject to 52 days of lockdowns. In addition, records from the Toronto East Detention Centre showed that between March 7, 2023 and August 26, 2025, Mr. Thongdara was housed with 2 other inmates for 461 nights of his 1,069 days of actual custody, and had 126 days of lockdowns. During his pre-sentence incarceration, Mr. Thongdara therefore was in lockdowns on a total of 178 days, or almost 6 months, and was triple bunked for 461 days.

4Pursuant to R. v. Marshall, 2021 ONCA 344, at paras. 50-52, these harsh circumstances of pre-sentence incarceration are relevant as a further mitigating circumstance in sentencing. I agree with Molloy J. in R. v. Shaikh and Tanoli, 2024 ONSC 774, at para. 23 that assigning a specific additional credit to the Summers credit otherwise applicable, is a proper and transparent manner to give effect to the mitigation in sentencing resulting from very harsh pre-sentence custody, so long as it does not result in an unfit sentence.

5To give effect to this principle, I will grant further credit to bring the total enhanced pre-sentence credit from 4 years 4 months and 25 days to a total enhanced pre-sentence custody credit of 4 years and 9 months (1,735 days).

6Mr. Thongdara entered a plea of guilty to the index offence of robbery which is the main mitigating circumstance in this case. In addition, he has pursued available workshops at the Toronto East Detention Centre ("TEDC") completing workshops on Self-Accountability, Substance Abuse, and Anti-Criminal Thinking and Responsible Living Choices.

7The Crown position on sentencing is that a 7-year sentence, less pre-sentence custody, and a 10 year long-term supervision order, is the fit sentence for the index offence given Mr. Thongdara's designation as a long-term offender.

8On behalf of Mr. Thongdara, Ms. Pennypacker submits that he is in a time served position, and that a 10-year long-term supervision order is the proper sentence, without any additional incarceration. She submits that, even when the sentence is imposed after a designation as a long-term offender, the fit sentence proportionate to the gravity of the index offence, and the degree of responsibility of Mr. Thongdara, is a time served sentence, with a 10 year LTSO, having regard to the significant pre-sentence custody already served.

Sentencing Law

Sentencing Law

9The general principles of sentencing are established in the following provisions of the Criminal Code. Section 718 states:

The fundamental purpose of sentencing is to protect society and 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:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender, and other persons, from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims, or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community

10Section 718.2 states:

A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

11The fundamental principle of sentencing is the principle of proportionality. Section 718.1 of the Criminal Code states that a sentence"must be proportionate to the gravity of the offence and the degree of responsibility of the offender".

12In R. v. Ipeelee, 2012 SCC 13, in which the Court considered the principles applicable to sentencing under the long-term sentencing regime, LeBel J. summarized the principle of proportionality as follows at para. 37:

The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 533:

It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

13While it is clear that denunciation and general and specific deterrence are the paramount considerations in sentencing an accused in relation to robbery, the rehabilitation of the accused must always be considered as one of the principles of sentencing. Indeed, as noted by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, at para. 4:

One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.

14In R. v. Boutilier, 2017 SCC 64, the Court confirmed the application of the general principles of sentencing in ss. 718 to 718.2 to long term offenders. The Court stated at paras. 53 and 54:

This Court has consistently affirmed that dangerous offender proceedings are sentencing proceedings: R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138, at para. 40; Jones, at pp. 279-80 and 294-95; Lyons, at p. 350. Accordingly, a sentencing judge in a dangerous offender proceeding must apply the sentencing principles and mandatory guidelines outlined in ss. 718 to 718.2: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at para. 23; Neuberger, at p. 3-4. These sections of the Criminal Code set out the purpose and objectives of sentencing (s. 718), the fundamental principle of proportionality (s. 718.1) — "the sine qua non of a just sanction" (R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37) — and the other sentencing principles that a court "shall" consider before imposing any sentence on an offender (s. 718.2). An error in the application of these principles is reviewable by an appellate court: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.

These sentencing principles apply to every sentencing decision, whether made under the regular sentencing regime, the dangerous offender regime or the long-term offender regime.

15At paragraph 56 of Boutilier, the Court affirms that, while the sentencing principles in sections 718 - 718.2 of the Criminal Code apply to sentences for long-term offenders or dangerous offenders, under Part XXIV of the Criminal Code,

Parliament is entitled to decide that protection of the public is an enhanced sentencing objective for individuals who have been designated as dangerous…. Emphasis on the public safety component is consistent with the fact that public protection is the general purpose of Part XXIV of the Code: Steele, at para. 27.

16In the subsequent decision in R. v. Spilman, 2018 ONCA 551, the Court of Appeal confirms that, in imposing a determinate sentence for a dangerous offender or long-term offender under Part XXIV, the judge is not restricted to imposing the sentence for the predicate offence that would have been appropriate in the absence of the designation of the offender as a dangerous offender or long-term offender. As Watt J.A. notes at paras. 32-33:

As I will explain, I am satisfied that in determining the length of the fixed-term custodial component of a composite sentence under section 753(4)(b), the hearing judge is not restricted to imposing a term of imprisonment that would be appropriate on conviction of the predicate offence but in the absence of a dangerous offender designation. The hearing judge must take into account the statutory limits of the offence for which sentence is being imposed, the paramount purpose of public protection under Part XXIV, and other applicable sentencing principles under sections 718-718.2. This analysis may justify fixed term sentences lengthier than those appropriate outside the dangerous offender context….

Emphasis on the public safety component is consistent with the fact that public protection is the general purpose of Part XXIV of the Criminal Code: Boutilier, at para. 56; R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138, at para. 27. This enhanced objective of public safety distinguishes proceedings under Part XXIV from those under Part XXIII and is of sufficient cogency to warrant sentencing dispositions beyond those ordinarily available for the predicate offence: see ss 753(4)(a) and (b).

This assessment can consider the length of treatment required in custody for the paramount principle of public protection to be achieved. Watt J.A stated in R. v. Spilman, supra, at para. 51:

…I am satisfied that when imposing a sentence under ss. 753(4)(b) or (c) a hearing judge may impose a fixed-term sentence that exceeds the appropriate range in the non-dangerous offender context, to ensure the offender has access to treatment programs in a penitentiary.

17He notes however, that the sentence must nevertheless be a fit and proportionate sentence having regard to the sentencing principles in ss. 718 - 718.2 of the Criminal Code. He states at para 53:

While factors such as the degree of responsibility of the offender and the gravity of the offence play a lesser role in determining a sentence under Part XXIV, these considerations cannot be entirely ignored. Even where their significance is attenuated, they prevent the imposition of lengthy fixed-term sentences that are entirely disconnected from the circumstances of the offence giving rise to the sentencing proceedings.

18In its recent decision in R. v. J.W., 2025 SCC 16, at para. 1 the Supreme Court of Canada has confirmed that, as a general principle applicable to all sentencing decisions,

When there is a sufficient evidentiary basis on the availability and accessibility of institutional programming, it is not an error in principle to consider an offender's anticipated time to complete it as a factor in the individualized sentencing process, provided that the sentence arrived at is proportionate to the gravity of the offence and the degree of responsibility of the offender. In assessing the fitness of sentences, we should bear in mind that proportionality often gives rise to a range of sentences rather than a single "correct" result…

19The Court notes, however, that for sentencing in relation to a dangerous offender or long-term offender, under Part XXIV of the Criminal Code, the protection of the public is an enhanced sentencing objective entitled to particular emphasis. While stating that a judge, in general, cannot overemphasize the purpose of protection of the public to the exclusion of other relevant and applicable considerations when crafting a fit sentence, the Court states at paragraph 61:

There are limited exceptions to the foregoing, notably the dangerous offender and long-term offender scheme in Part XXIV of the Code "to protect the public when the past conduct of the criminal demonstrates a propensity for crimes of violence against the person, and there is a real and present danger to life or limb"…. For this narrowly defined group of offenders, Parliament has decided that protection of the public is an "enhanced sentencing objective" (R. v. Boutilier, 2017 SCC 64, at para. 56.)

20Finally, an overriding principle in the sentencing of dangerous offenders or long-term offenders is that the offender is entitled to the least intrusive sentence required to achieve the primary purpose of the statutory scheme in Part XXIV of the Code: R. v. Boutilier, supra, at para. 60; R. v. Walters, 2018 ONCA 391, at para. 13.

21In my opinion, the same principles apply to the sentencing of a long-term offender under Part XXIV of the Criminal Code.

Application to the Facts

Application to the Facts

22In my opinion, the record in this case establishes that his polysubstance use disorder and gambling addiction became most problematic for Mr. Thongdara after the completion of his lengthy sentence for attempted murder in 2018.

23I accept Dr. Iosif's conclusions that the psychological treatment for anti-social personality disorder, and treatment for his gambling addiction, and his addiction to many substances including Fentanyl and alcohol needs to be lengthy and substantial, and is only available within a federal penitentiary after an appropriate assessment at the beginning of a penitentiary sentence.

24Even in the absence of a long term offender designation, sentencing jurisprudence has established that sentencing for robberies of convenience stores must apply principles of denunciation and general deterrence to reflect the vulnerable position of convenience store clerks who often work alone late into the night.

25In R. v. Lewis, 2009 ONCA 792 the Court stated at para. 3:

This court has repeatedly said that robberies of convenience stores will attract heavy sentences.

26In R. v. Dodman, 2021 ONCA 543, the Court stated at para. 15:

The jurisprudence of this court makes clear that robberies of convenience stores will attract substantial sentences and that general deterrence and denunciation play an essential role in fashioning a fit sentence: R. v. Clarke, 2014 ONCA 296, at para. 18; R. v. Superales, 2019 ONCA 792, at para. 1; and R. v. Lewis, 2009 ONCA 792, at para. 3.

27The maximum sentence for robbery is imprisonment for life: Criminal Code, s. 344(1)(b).

28Mr. Thongdara has 4 prior robbery convictions: two in 1995 for convenience stores, and two in 1999 in conjunction with his conviction for attempted murder. He received a sentence of 4 years concurrent on the two robbery convictions in 1999, concurrent to his 14-year sentence for attempted murder.

29While bound by a release order in relation to the index offence of robbery in this case, committed on April 19, 2022, Mr. Thongdara assaulted elderly strangers at the Woodbine Casino on July 9, 2022 when he was high on drugs, and acknowledged in his interview with Dr. Iosif that he had lost money at the casino that night and the assault was an attempt to take the victims' money to go home.

30While this offence is not a prior offence in relation to the index offence for which he is being sentenced in this case, it does demonstrate the risk to the public posed by Mr. Thongdara until he is successfully treated for his polysubstance addiction, his gambling addiction, and his personality disorder with strong antisocial personality traits.

31In R. v. Wilson, 2020 ONCA 3 at para. 66, Paciocco J.A. held that offences committed after the index offence may be relevant in sentencing under Part XXIV of the Criminal Code as they are relevant to the risk the offender poses to the public. He stated at para. 66:

Whereas subsequent convictions are not relevant in ordinary sentencing in determining the proportional fitness of the sentence for an offence, subsequent convictions are of utmost relevance in dangerous offender sentencing in establishing patterns of behaviour and evaluating future risks to public safety.

32The circumstances of the index offence of robbery, in light of Mr. Thongdara's substantial criminal record, including an 18 year sentence for offences including attempted murder, 4 prior robbery convictions including 2 prior convenience store robberies, the vulnerability of the convenience store clerk to this offence, and the gratuitous violence inflicted upon the clerk during the commission of the offence make the principles of denunciation, and specific and general deterrence, important considerations in determining the fit sentence in this case.

33The denunciation, specific and general deterrence objectives of the proportionate sentence for this robbery would call for a significant penitentiary sentence even in the absence of a long-term offender designation.

34At p. 38 of her report, Dr. Iosif makes the following recommendation concerning Mr. Thongdara's risk management:

Given Mr. Thongdara's high risk of violent offending, he needs a high level of intervention and significant resources to decrease that risk. His needs should be directed toward assisting with abstinence from substances, and therapies that focus on antisocial traits. He should also have a high level of consistent support and external supervision, and assistance in engagement in meaningful activities including employment. It is recommended that Mr. Thongdara complete the indicated programming in a federal institution prior to being released in the community.

35The testimony of Joseph Dixon, a Parole officer Supervisor, with Correctional Services Canada establishes that, as a person who has committed three violent offences, upon being sentenced to a period of incarceration of over two years, Mr. Thongdara would likely be referred for a psychological assessment upon his entry into the federal penitentiary.

36He would also receive an intake assessment at the Joyceville facility to determine what level of program intensity was appropriate for him. If he was assessed as needing a high intensity program it consists of 86 sessions in the institution of 2 and half hours per session. The current programming in federal institutions that would be applicable to an offender like Mr. Thongdara is a global relapse prevention program that is a multi-target program called the Integrated Correctional Program model.

37According to Mr. Dixon, if an offender is subject to a long-term supervision order, the order may involve a residential condition requiring the offender to live in a community correctional centre or a community residential facility in the same way in which this can be ordered by the Parole Board as a condition of parole.

38On the totality of the evidence, I accept Dr. Iosif's evidence and recommendations that Mr. Thongdara requires intensive in-custody rehabilitative treatment, and a subsequent controlled environment including substantial supervision, to reduce the risk of re-offence by Mr. Thongdara to an acceptable level such that it is effectively controlled. I accept Dr. Iosif's opinion that, the intensive treatment available in a federal penitentiary is necessary in this case to protect the public. This is only possible if, after credit for pre-sentence custody is deducted, Mr. Thongdara receives a sentence of at least 2 years.

39In my opinion, the clarity of Dr. Iosif's opinion on the need for the treatment available in a custodial setting distinguishes this case from the decision of the Ontario Court of Appeal in R. v. Gilmore, 2025 ONCA 517 on which Ms. Pennypacker relies. In that case, the expert evidence of Dr. Pearce, relied upon by the Court of Appeal, was that Ms. Gilmore's prognosis for treatment in the community pursuant to a LTSO was fair, with some reason for optimism, and that the targeted treatments she required were available in a LTSO through Correctional Services Canada: R. v. Gilmore, supra, at para. 16.

40In contrast, in the case at bar, Dr. Iosif's opinion, which I have accepted, is that the risk of re-offence presented by Mr. Thongdara requires intensive treatment available in a federal penitentiary, prior to the ongoing treatment and supervision available in a 10 year long term supervision order.

41On the totality of the evidence, including Mr. Dixon's evidence on the nature of the assessment available for an offender sentenced to more than two years in the federal penitentiary, I have concluded that the proper application of sentencing principles for Mr. Thongdara, pursuant to s. 753.1(3), as a long-term offender, being sentenced for his fifth robbery conviction, requires that the total sentence to be imposed must ensure that receives a sentence involving custody in a penitentiary, to ensure that he has available the necessary treatment within a federal penitentiary before being released on a 10 year long term supervision order.

42This requires a sentence in this case of 6 years and 10 months (2,495 days), which after a deduction of four years and nine months (1,735 days) of enhanced credit for presentence custody, leaves a remaining sentence of 2 years and 1 month, (760 days) which will be served in a federal penitentiary.

43I note that the Court of Appeal has instructed in R. v. Spilman, supra, at paras 32-38 and 43-44, that, under Part XXIV of the Criminal Code, a sentence for a dangerous offender or a long-term offender beyond the sentence which otherwise would be imposed for the index offence, may be a fit sentence if it is required to ensure the offender has access to treatment required to ensure that the offender's risk of further offences is appropriately controlled.

44I also note that any sentence for the index offence must be proportionate to the gravity of the offence and degree of responsibility of the offender when sentencing any offender, including a long-term offender: s. 718.1 Criminal Code, R. v Boutilier, supra, at para. 55.

45In my opinion, the proportionate sentence for the index offence of robbery, to achieve the goal of protection of the public, mandated by Part XXIV of the Criminal Code, and s. 753.1(3) governing the sentencing of long term offenders, and to achieve the objectives of general and specific deterrence, denunciation, and the rehabilitation of Mr. Thongdara, requires that Mr. Thongdara be sentenced to a period of incarceration of 6 years and 10 months (2,495 days) in the federal penitentiary, less pre-sentence custody to which an enhanced credit is applied totalling 4 years and 9 months (1,735 days).

46This leaves a sentence of 2 years and 1 month (760 days) to serve. In my opinion this is the least intrusive sentence required to achieve the primary purpose of sentencing under Part XXIV of the Criminal Code, the protection of the public: R. v. Boutilier, supra, at para. 60.

47While this sentence may be higher than would be imposed for the predicate offence under Part XXIII of the Criminal Code, as the Court of Appeal noted in R. v. Spilman, supra, at para. 22 and 33, the primary objective of sentencing under Part XXIV of protection of the public may warrant sentencing dispositions beyond those ordinarily appropriate for the predicate offence. See also R. v. Ariyanayagam, 2019 ONCJ 329, per Silverstein, J. at para. 51; R. v. MacLean, 2021 ONSC 6052, per O'Marra, J. at para. 34; R. v. R.M.P., 2020 ONSC 6337, at paras. 176-179, per Ryan Bell J.

48In my opinion, this is the minimum additional incarceration that will ensure that Mr. Thongdara serves a period of time in a federal penitentiary, and thus is able to receive an initial intake assessment, and the substantial treatment available in the federal penitentiary to address his polysubstance abuse, history of trauma and his gambling addiction, which Dr. Iosif concluded is essential to protect the public from further offences, and will assist Mr. Thongdara in his rehabilitation.

49In my view, the sentence of this length is required to make available to Mr. Thongdara the extensive substance abuse counselling and treatment, gambling addiction treatment, and psychological treatment to address antisocial personality disorder required for there to be a reasonable assurance that Mr. Thongdara will not commit a further serious personal injury offence at the conclusion of his sentence. This is a proper consideration in sentencing a dangerous offender or a long-term offender: R. v. Spilman, supra, at para. 43-44, and 51-54; R. v. C.G., 2019 ONSC 2406, at para. 119; R. v. MacLean, 2021 ONSC 6052, at para. 34.

50In my opinion, it is also the proportionate sentence pursuant to s. 753.1(3) of the Criminal Code, applying the sentencing principles in ss. 718, 718.1 and 718.2, reflecting the serious nature of the offence, Mr. Thongdara's substantial moral culpability, his prior serious criminal record, and the statutory objective of protection of the public Parliament has chosen as the paramount objective of sentencing under the dangerous offender and long-term offender regimes.

51Thereafter a lengthy period of long-term supervision, analogous to the heavily controlled environment in which he did well at the conclusion of his 18-year prison sentence, is required and provides a reasonable possibility that the public will be adequately protected against the commission by Mr. Thongdara of further offences. In my opinion a long-term supervision order of 10 years is required to provide the public with this reasonable expectation.

Ancillary Orders

Ancillary Orders

52In addition, pursuant to section 760 of the Criminal Code, I order that a copy of all reports and testimony given by Dr. Iosif, including her expert forensic psychiatric assessment report dated July 12, 2024, marked as Exhibit 4 in the sentencing, a transcript of Dr. Iosif's testimony, and my reasons for my ruling that Mr. Thongdara is a long-term offender dated July 21, 2025, and these sentencing reasons, along with a transcript of the evidence on the dangerous offender application, all be forwarded to the Correctional Service of Canada for their information.

53I also order that Mr. Thongdara provide a sample of his DNA pursuant to s. 487.051 as robbery is a primary designated offence pursuant to s. 487.04.

54I also order that a s. 109 order be issued prohibiting Mr. Thongdara from possessing a firearm and the other specified weapons and materials in s. 109 for life.

55There will also be an order pursuant to section 743.21 prohibiting any communication between Mr. Thongdara and the victim of the robbery Moon Lee while Mr. Thongdara is serving the custodial portion of his sentence.

Dated: September 24, 2025

Justice David Porter