Court File and Parties
Ontario Court of Justice Citation: R. v. Toney, 2026 ONCJ 315 Date: 2026 June 1 Court File: Toronto #25 50003846-00
Between: His Majesty the King — And — Charleana Toney
Sentencing Judgment
Before: Justice Brock Jones Heard on: December 3, 2025, and May 27, 2026 Written Reasons Provided on: June 1, 2026
Counsel: Ms. A. McPhedran, counsel for the Crown Ms. S. Kelly, counsel for Ms. Toney
Reasons for Judgment
Introduction
1On December 3, 2025, Charleana Toney pleaded guilty to one count of assault while threatening to use a weapon (to wit: an axe), contrary to Criminal Code section 267(b). The Crown proceeded by summary conviction.
Guilty Plea and Supporting Facts
2On February 18, 2025, at approximately 12:40 pm, J.V. was in the area of Kingston Road and Morningside Avenue in Toronto. She was walking on the sidewalk near 280 Morningside Avenue when Ms. Toney and several other young women approached her.
3Ms. Toney and her associates ran across the street to confront J.V. Ms. Toney was wielding an axe about one foot long. It had a yellow handle. She yelled, “Take off the jacket! Take off the jacket!”
4J.V. backed away from the group. The accused parties continued to advance upon her. Ms. Toney held the axe in a threatening manner, while one of her associates grabbed J.V. and threw her onto the lawn of a nearby property. This other person straddled J.V. by the waist, pulled her hair, and punched her repeatedly.
5Another member of the group also grabbed J.V. and punched her several times. Yet another member of the group kicked J.V. while she lay on the ground.
6Ms. Toney did not personally assault J.V., but she did stand nearby with the axe. She warned J.V.’s friends, who were present, not to intervene.
7J.V.’s jacket was forcibly removed from her. All the suspects left in a black-coloured vehicle.
Victim Impact Information
8J.V. declined to provide a victim impact statement.
Background of Ms. Toney
9Ms. Toney has Indigenous ancestry from both her parents. She is a registered member of the Annapolis Valley First Nation in Nova Scotia. Her mother was also a registered band member. Her father is non-status but has ties to an Indigenous community in the Longlac area of Northern Ontario.
10Ms. Toney was apprehended by child welfare authorities at birth. Her mother struggled with heroin addiction and died three days after her birth due to a complication from an overdose. Her father took her to Toronto when she was one year old.
11Her mother and maternal grandmother both attended residential schools. In the Gladue letter authored by a representative of Aboriginal Legal Services (“ALS”) filed during the sentencing hearing, Ms. Toney described the negative impact that the residential school system had on her family.
12Ms. Toney is one of ten siblings. She has four half-siblings on her mother’s side and five on her father’s. She also has a step-brother. She did not grow up with her siblings on her mother’s side because of child welfare involvement and her father’s decision to move to Toronto. Her siblings on her father’s side were taken into CAS care. Ms. Toney stayed at home and, when possible, took on caregiving duties for her younger siblings. Her father struggled with drugs.
13Further details about Ms. Toney’s life are included in the Gladue letter, which I will not repeat in this written judgment. To summarize, she experienced significant trauma throughout her life, including childhood abuse and domestic violence in a previous relationship.
14Ms. Toney has four children of her own, ages 18, 16, 7 and 6. All of her children reside with her. Unfortunately, she has experienced homelessness with her children. She lost housing around the time the offence was committed, and tried to care for her children while living out of her car. Eventually, she received support from the Ontario Native Women’s Association, which helped her secure emergency accommodations and later, more long-term housing. She now resides in subsidized housing in Scarborough, supported by Indigenous Rapid Housing Initiatives.
15Ms. Toney has been diagnosed with bipolar disorder, major depressive disorder, post-traumatic stress disorder, and anxiety disorder. She is receiving psychiatric care and has been prescribed daily medication. When she is not medicated, she experiences manic symptoms.
16Regarding the offence, Ms. Toney stated it occurred during a period of crisis when she was “homeless and cold” and was an attempt to recover her daughter’s stolen winter jacket. She accepts that what she did was wrong and expressed remorse. She has learned from the experience and intends to take her medication and work on emotional regulation.
17Ms. Toney has a strong connection to her Indigenous heritage. She smudges daily, participates in a local women’s hand-drum group, attends sweats, full-moon ceremonies, and community programming with her children. She works within the Indigenous community and continues to support cultural continuity for her children. She already has a support system in place in the community, through Indigenous service providers and community organizations.
18She graduated from high school and holds college certificates in culinary arts and administrative assistance. Her goals include returning to school, securing long-term employment, and providing love and support to her children.
Positions of the Parties
19Ms. McPhedran submits that a suspended sentence with one year of probation is appropriate. She submits that there are significant aggravating factors in this case, such as the use of a weapon and the victim being surrounded and subject to violence. However, those aggravating factors are balanced by important mitigating factors. Ms. Toney pleaded guilty, has shown insight into her behaviour, and is now pursuing rehabilitative programming. She has not re-offended since her arrest.
20The Crown does not dispute that Gladue principles should play a prominent role in my decision. Ms. Toney had a deep connection to her Indigenous heritage and is actively engaged with her cultural support network.
21Ms. Kelly requests a conditional discharge for her client. Ms. Toney has faced considerable challenges in her life but is working hard to overcome them. She has no prior criminal record. A conviction would make it much harder for her to keep or find employment in the future and to provide for her children. Ms. Toney is presently employed part-time and is enjoying a period of stability in her life. Her life circumstances have changed considerably since the offence occurred, and there is no reason to be concerned that she will reoffend.
22Ms. Kelly advised me against including a term in the probation order requiring her client to complete programming or counselling as directed by her probation officer. It is unnecessary in this case, as Ms. Toney is already connected to a support network through ALS and other Indigenous organizations. Given her employment and the four children she cares for, it might also place too great a burden on her.
Aggravating and Mitigating Factors
23The offence committed was unquestionably quite serious. Robbery involves the use of, or threat of, violence or force to steal property. Its seriousness only increases when a weapon is used to facilitate the offender’s goals: see R. v. Hilbach, 2023 SCC 3, at para. 53. While Ms. Toney pleaded guilty to committing an assault with a weapon, the gravamen of what she took part in is clear. She was part of a group that robbed J.V., who was outnumbered and defenceless.
24Sentencing decisions for crimes of violence involving weapons should typically place great emphasis on the principles of general deterrence and denunciation: see, for example, R. v. Hamlyn, 2016 ABCA 127, at para. 21. Section 718.04 of the Criminal Code now requires that a sentencing court give primary consideration to the principles of deterrence and denunciation when a court imposes a sentence that involves the abuse of a person who is “vulnerable because of personal circumstances.” J.V. was highly vulnerable. Every citizen of this city should feel free to go about in public, without fear that they will be beset upon by a group of people intent on using violence against them to steal their property. And while J.V.’s physical injuries were not terribly serious in this case, the risk existed that she could have been seriously harmed. It is very fortunate that she was not.
25I agree with counsel that there are also some significant mitigating factors. Ms. Toney is a first-time offender. She pleaded guilty and accepted responsibility for her actions, sparing the victim the need to testify. That is to her credit and is another important mitigating factor. She has expressed insight into her behaviour and remorse for her actions.
26She has made genuine and impressive efforts in the community to connect with professionals and obtain help since her arrest. She is regularly engaged with Indigenous cultural programming. She works, supports her children, and is seeking medical treatment for her mental health challenges.
Gladue Principles
27Ms. Toney is an Indigenous Canadian. Section 718.2(e) of the Criminal Code states:
A court that imposes a sentence shall also take into consideration the following principles:
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
28In R. v. Gladue, 1999 679 (SCC), and R. v. Ipeelee, 2012 SCC 13, the Supreme Court of Canada held that this section is remedial and is intended to deal with the continuing crisis of over-representation of Indigenous offenders in the Canadian criminal justice system: Gladue at para. 33; Ipeelee at para. 59. Alternatives to the use of imprisonment must be seriously considered by a sentencing court: Gladue at para. 38.
29In R. v. Davis, 2025 BCCA 113, the majority of the British Columbia Court of Appeal held that this provision calls for “a different methodology” for determining a fit sentence in relation to an Indigenous offender, although the difference of approach will not necessarily mandate a different result: see para. 76; R. v. Wells, 2000 SCC 10, at para. 44.
30When assessing an offender’s moral culpability, a court must consider the offender’s life history and personal circumstances to better understand why the offence was committed. However, there is no requirement for an Indigenous offender to demonstrate a causal connection between “systemic or background factors” and the offence before the court. Instead, the court must be satisfied that they are “tied in some way to the particular offender and offence,” see R. v. F.H.L., 2018 ONCA 83, at paras. 38-41.
31Before I begin my analysis regarding whether Ms. Toney should be granted a discharge, I want to commend Ms. McPhedran for the enlightened approach she brought to this sentencing hearing on behalf of the Crown. The overincarceration of our Indigenous peoples is a long-standing and complex concern. In Ipeelee, the Supreme Court recognized that sentencing cannot be the “sole or even primary means of addressing Indigenous overrepresentation in penal institutions”: see also Davis at para. 20. The Supreme Court nevertheless emphasized that sentencing judges have an important role to play in achieving that objective, as every sentencing decision makes an impact: Ipeelee at paras. 69–70. How the Crown exercises its discretion can make a profound difference as well.
32More than 25 years after Gladue was decided, there is no escaping the tragic reality that the problem of Indigenous overincarceration in Canada remains worse than ever. On January 16, 2026, Statistics Canada released a report entitled “Overrepresentation of Indigenous and Black adults in provincial and federal custody.”1 In 2023/2024, Indigenous adults were incarcerated at a rate 10 times higher than non-Indigenous adults in the six provinces with available data (Prince Edward Island, Nova Scotia, Ontario, Saskatchewan, Alberta and British Columbia). Over the five-year period studied (2019/2020 to 2023/2024), the overrepresentation of Indigenous adults in custody increased each year. Overrepresentation in custody, while staggering for all Indigenous people, remains of greater concern for women than for men. Statistics Canada calculated that the overrepresentation index score for Indigenous women was nearly twice that of Indigenous men. These numbers should give Gladue courts across the country, and all justice system participants, pause for thought. Far more remains to be done to address this almost unfathomable inequity in our justice system.
33A meaningful consideration and analysis of the Gladue evidence presented to a sentencing court is demanded in every case: R. v. K.M, 2026 SKCA 3, at para. 80. In particular, the background and life history of the individual offender must always be carefully examined before deciding on a proportionate disposition. This requires compassion and an open mind. The correct approach was described in the Alberta Court of Appeal’s decision of R. v. Rabbit, 2023 ABCA 170, at para. 47:
To apply s 718.2(e), sentencing judges must try to understand what influenced an Indigenous offender to act in the way he did. It also includes assessing whether one’s instinctive reaction to that conduct would be the same, given the circumstances, if the offender were of a different race, culture, or background. This analysis involves empathy, imagination, and introspection, among other things. It imposes on the sentencing judge the difficult task of imagining a different life, and honestly asking how a person – not the world’s strongest or most resilient person – might be affected by such an experience.
34I find that there is a nexus between Ms. Toney’s experiences as an Indigenous Canadian and the offence she committed: see, by way of a similar example, K.M. at para. 95. She has been subject to intergenerational trauma from the residential school system. Her parents wrestled with their own demons. She and her siblings were taken into the care of the child welfare system, causing family dislocation. She has also, sadly, had to endure various forms of abuse in her life. While she has taken steps to address her mental health needs, that will require ongoing effort and support. Thankfully, she has been able to obtain some of that support and is committed to continuing to do so. All of these difficulties have been compounded by the socio-economic disadvantages she has faced in her life. Yet she has remained a loving and supportive mother to her children and achieved much that is very impressive.
Test For A Conditional Discharge
35The test for a discharge is contained in Criminal Code section 730(1):
(i) The court must be satisfied that it is in the best interests of the accused; and
(ii) the court must be satisfied that it is not contrary to the public interest that the accused receive a discharge.
36In R. v. Sanchez-Pino, 1973 794 (Ont. C.A.), the Court of Appeal held that “it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is not contrary to the public interest.” A discharge is appropriate when an offence seems “out of character” or when the offender was struggling with “mental turmoil or some unusual disturbance in his life’s routine”: see R. v. Taylor, 1975 1147 (Ont. C.A.) at p. 552.
37Courts across Canada have held that Gladue factors are relevant to the public-interest component of the test for a conditional discharge. For example, in R. v. Harper, 2020 BCPC 226, Justice Bahen held that “the assessment of the public interest is informed by the Gladue factors”: see para. 32; see also R. v. Katapatuk, 2024 ONCJ 646, at paras. 73-81; and R. v. MacLeod, 2023 ONCJ 71, at para. 71. In R. v. Mathewsie, 2016 NUCA 5, the Nunavut Court of Appeal held that upon consideration of these principles, a discharge may be granted even for “an offence that on its face may warrant a more punitive sanction”: see para. 44.
Conclusion
38Ms. Toney’s offence was committed during a time of great personal upheaval in her life. That does not excuse her conduct. But it does suggest she is highly unlikely to offend again. In the 15 months since her arrest, she has made great strides and continued on a very pro-social path. The difficult circumstances she found herself in at the time she assaulted J.V., and the Gladue factors present in this case, greatly reduce her moral culpability for her offending behaviour. I do not, for a moment, mean to diminish the harm caused by her actions. Nevertheless, the severity of an offence, including the impact it had on a victim, cannot be permitted to overwhelm the court’s proportionality analysis: Davis at para. 38; Rabbit at paras. 51-3.
39Sentencing judges must pay “particular attention to the circumstances of Aboriginal offenders because those circumstances are unique, and different from those of non-[A]boriginal offenders”: Gladue at para. 37 (my emphasis added). In my view, a commitment to the spirit of reconciliation should be reflected in every sentencing decision in Gladue court. We will only truly begin to overcome the tragic legacy of the historic mistreatment of our Indigenous peoples in the criminal justice system if we are willing to embrace alternative sentencing outcomes where they can be appropriately fashioned. As noted by Justice Karakatsanis in her dissenting judgment in R. v. Sharma, 2022 SCC 39, at para. 115:
Sentencing law cannot erase this country’s colonial past. Nor can it remove the causes behind an offender’s crime. But it is uniquely positioned to ameliorate — or aggravate — the racial inequalities in our criminal justice system. Ensuring that Canadian sentencing provisions are consistent with the liberty and equality guarantees under the Canadian Charter of Rights and Freedoms is therefore essential.
40A restorative justice approach to Ms. Toney’s sentencing should focus on holding her accountable while recognizing the community support networks she is involved with that are meaningful to her and will help ensure she does not re-offend. Furthermore, it will ensure that Ms. Toney and her children can remain together and preserve her ability to provide for them. That is a value that courts should place great emphasis upon, especially in the case of Indigenous Canadian families: see R. v. Habib, 2024 ONCA 830, at para. 44; Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5.
41While general deterrence must be prioritized in this case, in R. v. Smart-James, 2022 ONSC 3711, Justice Campbell noted that a discharge has some deterrent effect: see para. 24. I agree. Ms. Toney has changed, and I find she is at an extremely low risk of re-offending. Properly structured, the sentence I impose today can achieve all the applicable sentencing principles and promote Ms. Toney’s long-term rehabilitation and the unity of her family. That is unquestionably in the best interests of society. A conviction, if entered, would inevitably make these goals far more difficult for her to achieve.
42I find it would not be contrary to the public interest to grant Ms. Toney a conditional discharge with a 12-month probation order. In fact, I find it entirely in keeping with the public interest, which must consider Gladue factors. I also agree with Ms. Kelly’s submission that there is no need in this case to order Ms. Toney to complete state-supervised counselling or programming. She has already shown her desire and willingness to work independently with Indigenous support networks.
43A DNA order is mandatory, as this is a primary designated offence.
44I impose a section 110 weapons prohibition order for two years as requested by the Crown.
45The victim fine surcharge is waived to ensure Ms. Toney can provide financially for her children.
Released: June 1, 2026
Signed: Justice Brock Jones