ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
JAIDEN ROBINSON
Before Justice André Chamberlain
Heard on May 4, 2026
Reasons for Sentence read on June 1, 2026, and Released June 9, 2026
Rihanna Woodward counsel for the Crown
Michael Leitold counsel for the accused Jaiden Robinson
1Jaiden Robinson entered a guilty plea to a single count of robbery with a prohibited weapon. The parties jointly recommend a mandatory minimum sentence of five years. They disagree on what value should be attributed to the pre-sentence custody.
2As has happened too often in this jurisdiction, many basic human needs and expectations are not being met for inmates in pre-trial custody. Despite repeated recommendations by the Court and requests from Mr. Robinson himself, medical and dental care were never provided. Jaiden Robinson is of Black and Indigenous ancestry. During his time at the Toronto South Detention Centre (the South), the Indigenous Unit was eliminated. In September 2025, correctional officers removed and disposed of the artwork, teachings and prayers that were in the former Indigenous range. The position of Native Inmate Liaison Officer (NILO) has been and remains vacant, denying Indigenous inmates access to consistent Indigenous support services in the institution.
3Jaiden Robinson requests additional credit for pre-trial custody, citing hardships from inadequate medical and dental care, numerous lockdowns, and the treatment he received as an Indigenous inmate in the South.
The Facts in Support of the Guilty Plea
4On March 15, 2024, at 3:45 p.m., Mr. Farzin Shahid-Noorai drove his 2023 Mercedes-Benz S580 to the Shops at Don Mills, Toronto. He parked, turned off the ignition, and exited his vehicle, placing the keys in his jacket before locking the car. Jaiden Robinson then emerged from behind the vehicle, wearing a black hoodie and balaclava, confronted Mr. Shahid-Noorai, and demanded the keys. Mr. Robinson, holding a firearm in his right hand, took the keys by reaching into Mr. Shahid-Noorai’s pocket, entered the Mercedes, and drove off.
5A bystander, Jack Dagleish, in his own vehicle, tried to block Mr. Robinson, who accelerated, struck Mr. Dagleish's vehicle, and collided with a pole before fleeing. Police tracked the GPS-enabled Mercedes to 45 Sepia Drive, about 9 km away. Officers arrived around 4:00 p.m., saw Mr. Robinson by the trunk, and chased him when he tried to escape on foot. Robinson was caught, arrested, and found with a semi-automatic handgun, later identified as an "FN" 590. A round of ammunition was in the chamber; however, the magazine was not attached to the firearm at the time of recovery. Officers subsequently located the missing magazine a short distance from where Mr. Robinson was arrested. The magazine was an over-capacity magazine loaded with five rounds of 9mm ammunition.
6The handgun seized from Mr. Robinson constitutes a "prohibited weapon" under s. 84 of the Criminal Code of Canada.
7During his arrest, Mr. Robinson sustained minor injuries to his forehead, ankle, and shoulder, as well as two chipped teeth that did not require extraction. He received medical treatment the same day and was cleared of any shoulder injuries. He was advised to seek dental and medical assistance for his tooth and injured ankle.
8Jaiden Robinson has been in custody since the date of the arrest, March 15, 2024. As of the date that this judgment was read, June 1, 2026, he will have been in custody for 809 days.
Background And Review of the Gladue Report and Update
9Jaiden Robinson is a Status First Nations adult with maternal ties to the Carry the Kettle Nakota First Nation. His personal history reflects the enduring and well-documented impacts of intergenerational trauma arising from the legacy of residential schools and the colonial policies instituted by successive past governments, resulting in a cultural genocide. His maternal grandmother attended the Lebret Industrial School, and the resulting disruptions have contributed to a loss of cultural identity, fractured parenting models, and exposure to substance use and trauma within the family system.
10Consistent with intergenerational trauma patterns, Mr. Robinson’s upbringing was marked by family instability, emotional suppression, and a disconnection from cultural supports and traditions. He was raised by a single mother, with no involvement from his father, who later denied paternity. This absence contributed to a lasting impact on his sense of identity and belonging, as well as emotional injury. Despite these challenges, Mr. Robinson developed a strong and positive attachment to his maternal grandfather, whose sudden death when Jaiden was 16 years old represented a significant turning point in his life. This loss appears to have intensified feelings of grief and abandonment, contributing to subsequent emotional dysregulation and substance use.
11Mr. Robinson has experienced multiple and compounding traumatic events throughout his development. These include physical abuse by an uncle, as well as a sexual assault at age 13 that remained largely undisclosed and unaddressed. Additionally, he was exposed to substance misuse and negative behavioural modelling within his family environment. The cumulative impact of these experiences has manifested in persistent feelings of shame, emotional suppression, anxiety, depression, and difficulties establishing trust and maintaining relationships.
12Substance use began at an early age, with alcohol and cocaine use reported at approximately age 11, and marijuana use by age 13. His substance use escalated significantly following the death of his grandfather and during subsequent periods of stress and trauma. The available information suggests that substance use has functioned as a maladaptive coping strategy to manage unresolved grief, emotional pain, and instability.
13Mr. Robinson was diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD) in childhood. This diagnosis was associated with symptoms of impulsivity, emotional dysregulation, and academic difficulties. Treatment efforts were inconsistent, in part due to adverse reactions to medication, including increased anxiety and depressive symptoms. He continues to experience challenges related to anger regulation, trauma-related symptoms, and substance dependence.
14Educationally, Mr. Robinson faced significant barriers within the traditional school system. These included poor attendance and behavioural difficulties, which were influenced by his ADHD symptoms, peer environment, and a lack of consistent and appropriate systemic support. As a result, he did not complete high school.
15He has faced similar challenges as an adult but appears to have demonstrated some resilience. The updated Gladue Report offers a markedly more nuanced and, in many respects, more hopeful portrait of Mr. Robinson’s trajectory since the 2019 report, while also highlighting the fragility of those gains in the face of cumulative stress, loss, and structural instability.
16Following his release in January 2020, Mr. Robinson entered a sustained period of relative stability and constructive engagement. He lived with his mother while on bail and, significantly, directed his energies toward lawful employment, parenting, and self-improvement. He secured work as a cleaner and advanced to a managerial role with supervisory responsibilities, suggesting not only reliability but also the capacity to function in positions of trust. At the same time, he maintained involvement with Anishnawbe Health Toronto’s Aboriginal Mental Health and Addictions Program, initially at an intensive level, and later through weekly individual counselling when competing obligations made group participation impracticable.
17This period is notable for the extent to which Mr. Robinson integrated multiple pro-social roles. In February 2021, he enrolled in an audio engineering program at Trebas Institute while working full-time and remained engaged in culturally relevant mental health programming. His brief incarceration from October 2021 to January 2022 interrupted these efforts, but available information indicates that this disruption did not extinguish his progress. Upon release, he successfully re-engaged with his studies, resumed employment, and continued counselling, reflecting resilience and capacity to re-engage after a setback.
18From early 2022 through early 2023, Mr. Robinson maintained what can fairly be described as a high-functioning, structured lifestyle. He balanced full-time schooling, employment, and weekly counselling, ultimately graduating from the Trebas Audio Engineering Program in February 2023. During this period, his alcohol use decreased measurably, which he attributed to both counselling and the stabilizing effects of a demanding, goal-oriented routine.
19Following graduation, Mr. Robinson demonstrated initiative and entrepreneurial capacity. He saved money, formed partnerships, and secured studio space to launch an audio engineering business, thereby achieving consistent work and income. This development is particularly significant: it reflects not merely participation in programming, but the translation of acquired skills into economic activity and community integration. Concurrently, he continued in his managerial employment and maintained counselling engagement, further supporting the conclusion that this was a period of genuine stabilization.
20Equally important is the evidence of his role within his family during this period. The report describes his substantial involvement in caring for his younger siblings and maintaining close relationships with them despite the age gap, as well as his consistent parenting of his daughter. These responsibilities, undertaken alongside employment and schooling, reinforce the impression of an individual seeking to assume mature, pro-social roles within both his immediate and extended family.
21However, this period of relative stability did not last. By late 2023, there were signs of erosion in the supports that had previously assisted him. His counselling relationship ended when his counsellor left, and his attempt to continue with a new counsellor was unsuccessful because of a perceived lack of rapport and a judgmental approach. This development is not trivial: the report repeatedly underscores the importance of culturally appropriate and supportive professional relationships. Mr. Robinson’s disengagement appears tied not to unwillingness but to the breakdown of a therapeutic alliance central to his progress.
22The early months of 2024 marked a decisive turning point. Mr. Robinson faced multiple concurrent stressors, including bereavements, a serious illness affecting someone close to him, financial instability within his family stemming from the impending foreclosure of his mother’s home, and the abrupt loss of a significant business contract. The convergence of these events is described as precipitating a “tailspin,” and the temporal proximity between the loss of the contract and the index offence, within days, is particularly striking.
23In sum, the period since 2019 reveals both a demonstrated capacity for rehabilitation and the vulnerabilities that undermine it. Mr. Robinson’s trajectory over these years provides concrete evidence that, with adequate support and stability, he can function in a pro-social and productive manner. Conversely, it also illustrates how unresolved trauma, grief, and systemic pressures continue to exert a destabilizing influence, particularly in the absence of sustained, culturally responsive intervention.
24Jaiden Robinson has a related record. In January of 2021, he was convicted on two separate informations, to a global sentence of 18 months: 14 months jail on top of 30 days times served for an aggravated assault, with one month concurrent for theft under $5,000, and a further 3 months consecutive for robbery. He was also placed on probation for two years on all charges.
Pre-Trial Custody Conditions at the South
25Jaiden Robinson submitted an affidavit detailing the conditions of his detention at the South. His affidavit, which went unchallenged, detailed the following:
(1) He was subjected to frequent and routine institutional lockdowns, amounting to at least 128 full days of continuous 24-hour confinement. These lockdowns occurred weekly or near weekly and were often attributable to institutional staffing shortages rather than any misconduct by Mr. Robinson. During these periods, the defendant was always confined to a cell, with no opportunity for time out and no meaningful human contact beyond a cellmate. The lockdown conditions also precluded access to telephone communication, visits, institutional programs, and legal contact. The lockdowns also meant a denial of fresh air and outdoor exercise, of showers for personal hygiene, and of access to educational, rehabilitative, and cultural programming. He reported some emotional deterioration, feeling depressed and severe emotional distress.
(2) Mr. Robinson was regularly triple bunked, where three individuals are placed in a cell meant for two people, resulting in one inmate being required to sleep on the floor close to the shared toilet.
(3) Jaiden Robinson sustained a broken tooth during his arrest. He was first taken to the hospital, where he received treatment for other injuries. His hospital release documents indicated he should be seen by a dentist, as the broken tooth did not require extraction but did require dental care. Despite this recommendation and numerous requests by the Court over several appearances, he was never provided with any dental care, except for the occasional analgesic. Similarly, a recommendation for ankle injury care was ignored.
(4) The South has, for many years, had an Indigenous range where Indigenous inmates were housed, with artwork and teachings on display. Having most of the Indigenous inmates on one range allowed for the Native Inmate Liaison Officers (NILO) to be involved in arranging visits by elders, cultural activities, and provided those following traditional teachings with access to ceremony, medicine bundles and the ability to participate in smudging, sweatlodge ceremonies, healing circles, pipe ceremonies and feasts as appropriate. These practices and ceremonies were “a touchstone for my rehabilitation and self-healing,” according to his affidavit (Exhibit 6, para 41). In the winter of 2024, a teepee used for ceremonies on the institution's grounds was blown down. Officers declined to allow the inmates to rebuild it due to the lack of a NILO. The NILO position has not been filled by the South.
(5) At some point, the Indigenous range was closed by the South, and when he inquired, Jaiden Robinson was told it was because there were not enough Indigenous inmates in the institution. Notwithstanding that the Indigenous range had been much of the artwork and teachings remained on the walls in the unit. In September of 2025, wall-displayed pieces, including teachings, lessons, prayers, and pictures of Indigenous heroes, were removed and placed in garbage bins. The officers also took away personal medicine pouches gifted to inmates. Mr. Robinson and other inmates were ultimately given permission to retrieve the art and other displayed items from the garbage. Inmates, including Jaiden Robinson, filed a joint statement to the institution to complain, describing what they felt were deeply offensive and hurtful actions in the disrespectful treatment of their beliefs and culture.
26Following the issuance of a subpoena for institutional records on his behalf, Jaiden Robinson’s counsel, Mike Leitold, received the following response to a request regarding the “unit change” related to the loss of the Indigenous unit. The response from the security department in Exhibit 5 reads verbatim:
(1) There were not enough indigenous (sic) inmates to have a full unit and TSDC does not have a NILO to support the unit.
(2) With SAFER indigenous (sic) inmates are given special consideration (SAFER started in Jan. 2025 so that is when the indigenous unit ended).
27I give full credit to the Assistant Crown Attorney, Rihanna Woodward, who, despite receiving the materials just a few days before the scheduled hearing, made valiant efforts to obtain a response from the institution. Had she requested an adjournment to gather or prepare materials in response, I would have seriously considered it, but I got the distinct impression she was not expecting any response from the institution to the concerns raised by Mr. Robinson and his counsel.
The Position of the Parties
28The parties agree that a mandatory minimum sentence of five years is appropriate in the circumstances. They disagree on the issue of Duncan1 credit.
29Ms. Woodward, representing the Crown, cites R. v. Hilbach, in which the Court acknowledged that the mandatory minimum sentence for Mr. Hilbach was “harsh” and “severe” and noted that it "departed from principles of parity and proportionality in Mr. Hilbach’s case” (at para. 80). Despite this, the Court concluded that the five-year mandatory minimum, although borderline, was not excessively disproportionate. Consequently, Mr. Hilbach was sentenced to five years’ imprisonment.
30Though Ms. Woodward made it clear that she was not defending the South's actions regarding how it treated Jaiden Robinson as noted above, she notes the differing lines of cases following Marshall, some even relying on Duncan, which treat harsh pre-trial conditions as mitigating on the quantum of a sentence. She argues that regardless of the calculus of the sentence, I must be mindful that the total sentence is not reduced to one that is unfit.
31Mr. Leitold concedes that this is a serious offence that warrants a serious sentence and joins in requesting that a five-year sentence be imposed. But he maintains that the uniquely oppressive and inhumane treatment of his client demands an increase in pre-trial credit, to the point that this becomes a time-served sentence. As of the delivery of this judgment, Jaiden Robinson will have served 809 days in pre-trial custody.
The Applicable Law
I. Sentencing Principles
32The Criminal Code of Canada, at section 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
33The aggravating and mitigating factors include elements of Jaiden Robinson’s background, the nature of his crimes, the timing of his guilty plea, and any other evidence presented at this sentencing hearing. This also encompasses legal guidance from the Criminal Code and directives from higher courts regarding specific aspects of this case that I must consider. Some of the aggravating circumstances include:
(1) Robbery with a firearm is, by its very nature, a crime of high moral culpability.
(2) Jaiden Robinson has a short criminal record with entries of related violent offences.
(3) There was evidence of premeditation in his actions. Facing a financial and personal crisis, only days later, while wearing a balaclava and armed with a loaded prohibited semi-automatic handgun, Mr. Robinson takes an innocent victim’s high-end vehicle from a public parking lot.
(4) Though the victim of the offence declined the opportunity to provide a victim impact statement, I take notice of the abject terror he must have felt to be confronted with a demand for his vehicle keys by an assailant wearing a balaclava and holding a handgun. That the gun was neither pointed at the victim nor discharged is not any less aggravating, because of the threat of a handgun present during the robbery.
34In mitigation, the following factors are considered:
(1) Jaiden Robinson is a 31-year-old, Black and First Nations Indigenous man.
(2) He admitted his guilt and entered his plea in January of 2026.
(3) His Gladue Report from 2019 and Update Letter from 2026 recount an all-too-familiar history of Indian Residential Schools and its impact on the lives of survivors and the intergenerational trauma that so often accompanies those affected.
(4) His prospects for rehabilitation are promising, as he has shown periods of progress and positive movement, but he does need to address the underlying issues affecting him to manage his choices when challenges become overwhelming.
II. R. v. Hilbach[^2] and the Impact on Sentence
35Mr. Hilbach, a 19-year-old Indigenous man, robbed a convenience store with a loaded rifle alongside a 13-year-old accomplice. The Supreme Court of Canada determined that a suitable sentence for him would have been three years.
36Section 718.2(e) requires courts to consider the unique circumstances of Indigenous offenders and explore alternatives to imprisonment. However, the Court ruled that these Gladue factors cannot justify a sentence below a mandatory minimum.
37Hilbach argued that the mandatory minimum sentence in his case breached s. 12 of the Charter of Rights and Freedoms, by imposing a sentence that he argued was cruel and unusual punishment. The Court agreed that Gladue factors must be considered during the initial stage of the s. 12 analysis in determining an appropriate sentence, and they can inform hypothetical scenarios and the assessment of gross disproportionality.
38Nonetheless, the Court affirmed that these considerations do not override the mandatory minimum sentence mandated in the legislation. The Court recognized that the five-year minimum sentence was “harsh” and broke parity and proportionality in Mr. Hilbach’s case. Still, it found the sentence not grossly disproportionate and upheld the five-year term. The key point is that even if a sentence exceeds what the offender’s personal circumstances would require, the law emphasizes the enforcement of mandatory minimum penalties. Therefore, mitigating factors like Indigeneity can be fully considered when determining sentences above the minimum, but cannot lower a sentence below the minimum.
III. Marshall Credit and Duncan Credit
39The Ontario Court of Appeal in R. v. Duncan3, indicated at paragraph 6 of its judgment that,
The trial judge effectively held that any credit or consideration in relation to presentence incarceration was capped at the 1.5 limit. We agree with counsel that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.
40The Ontario Court of Appeal, in R. v. Marshall4, at paras. 52 and 53, addressed its preference that “particularly punitive pretrial incarceration” be calculated as a mitigating factor on the sentence. However, they did not close the door on the possibility of quantifying such credit, provided that, in the end, the sentence imposed was not skewed. They noted:
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.
53 Often times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk the “Duncan “ credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated in that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B., (2004), 2004 ONCA 39056, 187 O.A.C. 307 (C.A.).
[Emphasis Added]
41This position was affirmed by the same court in R. v. Brown5 at paragraph 3, stating:
. . . In Marshall, Doherty J.A., for the court, cautioned against treating the mitigating effect of harsh conditions of pretrial custody "as a deduction from the appropriate sentence in the same way as the 'Summers' credit'": Marshall, at para. 53. Although he said it is not "necessarily inappropriate" to proceed in this way, he affirmed a strong preference for simply treating particularly punitive pretrial conditions as "a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence": Marshall, at paras. 51-53. He adopted this approach to prevent courts from giving harsh conditions "unwarranted significance in fixing the ultimate sentence imposed": Marshall, at para. 53.
R. v. Brown, [2025] O.J. No. 863 | 2025 ONCA 164 at para 3 [Emphasis Added]
IV. Duncan Credit in the Face of a Mandatory Minimum Sentence
42The authorities part when it comes to the issue of whether Duncan credit can increase the value of the pre-sentence custody above and beyond Summers Credit when it comes to the imposition of a mandatory minimum sentence. In R. v. Vassel6, a 2022 decision of the Superior Court of Justice, the Court noted:
30 Sentences must be fit — but what is a fit sentence in a case involving mandatory minimums? As Pomerance J. observed in R. v. Hearns, proportionality and fitness of sentence are not co-extensive. Proportionality refers to the concept that a sentence must reflect the gravity of the offence and the degree of responsibility of the offender. Fitness looks to the broad range of factors that go into the sentencing process. The factors can include harsh conditions of custody. Those conditions may justify a departure from the usual range of sentence: Hearns at para. 16 and 17, referencing R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para. 58.
43And later finding that harsh conditions must be considered, even in the face of a mandatory minimum sentence, in order to prevent, in appropriate cases, the imposition of an unjust sentence, Justice Goldstein noted at paragraph 35:
Indeed, the fundamental principle of sentencing, set out in s. 718.1 of the Criminal Code, is that: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” An unjust sentence would obviously [be] disproportionate.
44This reasoning was adopted by Justice Roberts in R. v. Fogah-Pierre7, at para. 46, finding:
However, the Court has also held that it is not necessarily an error to affix a number to this mitigating circumstance. Both counsel ask me to do that here, and jointly propose 127 days as the appropriate number. I am content to do as counsel ask as I do not believe it will cause the Duncan credit to take on “unwarranted significance in fixing the ultimate sentence” and result in an unfit, inappropriate sentence. Moreover, unlike a Downes credit, it reflects “real” jail, and I accept the joint submission that this credit can be deducted from a mandatory minimum sentence: R. v. Vassel 2022 ONSC 3669.
45However, the most recent decision from the Superior Court of Justice on the application of the Duncan credit to reduce a mandatory minimum sentence distinguishes Justice Goldstein’s ruling in R. v. Vassel, finding that he did not have the benefit of the SCC’s decision in R. v. Hilbach. Justice Denison, in R. v. Hilaire8 finds:
41 The majority of the Court held that the mandatory minimum sentence of 5 years, while harsh and close to the line, was not grossly disproportionate. The Court held that the scope and reach of the offence was limited and the offence caused significant trauma to the victims.
42 The majority of the Court also considered the effects of the penalty on the offender. The Court agreed that the effects of the 5-year mandatory minimum sentence were "severe" in Mr. Hilbach's case and would detrimentally impact his rehabilitation. The majority of the Court further recognized at para. 63, that as an Indigenous offender, Mr. Hilbach would serve harder time in prison and that "a fit and proportionate sentence would fall below the mandatory minimum" (emphasis in original).
43 The Court concluded by finding that Parliament has the authority to prioritize deterrence and denunciation with respect to this offence provided that the sentence does not violate s. 12 of the Charter. As the Court explained:
74In the case of offenders like Mr. Hilbach, with reduced moral culpability due to, for example, developmental delays or a substance use disorder, the five-year mandatory minimum may exceed what is necessary to achieve Parliament's sentencing objectives (Hills, at para. 138). In Mr. Hilbach's case, a five-year minimum term in custody is a harsh punishment considering his personal circumstances.
80Despite its effect viewed through the lens of s. 718.2(e), I am unable to conclude that the minimum sentence goes beyond what is necessary to achieve Parliament's purpose such that it fails to reflect rehabilitation entirely and undermines human dignity. As noted, Parliament was justified in prioritizing denunciation and deterrence over rehabilitation, given the nature of this offence. And while the minimum sentence departs from principles of parity and proportionality in Mr. Hilbach's case, it does not result in a sentence that is grossly disproportionate to the sentencing norms for this offence. [Emphasis added.]
44 The decision in Hilbach makes it clear that Parliament's use of mandatory minimum sentences may result in the imposition of sentences that are disproportionately harsh. Hilbach therefore undermines the rationale applied by Goldstein J.'s in determining that Duncan credit could reduce a sentence below the mandatory minimum. I therefore do not find that I am bound by Goldstein J.'s decision in Vassal.
V. The Application of Horizontal Stare Decisis
46Justice Denison’s judgment in R. v. Hilaire, the most recent decision of the Superior Court of Justice, a court of concurrent jurisdiction, must be considered in light of the principles of stare decisis as set out in R. v. Sullivan9, which states:
65Horizontal stare decisis applies to courts of coordinate jurisdiction within a province, and applies to a ruling on the constitutionality of legislation as it does to any other legal issue decided by a court, if the ruling is binding. While not strictly binding in the same way as vertical stare decisis, decisions of the same court should be followed as a matter of judicial comity, as well as for the reasons supporting stare decisis generally….
79…Where, as here, a judge is faced with conflicting authority on the constitutionality of legislation, the judge must follow the most recent authority unless the criteria above are met. In such a situation, the judge must, in determining whether the prior decision was taken per incuriam, consider whether the analysis failed to consider a binding authority or statute relevant to the legal question.
47In order to consider whether I can depart from R. v. Hilaire, R. v. Sullivan provides, at para. 75, guidance on under what narrow circumstances I might depart from the Justice’s findings:
75The principle of judicial comity — that judges treat fellow judges’ decisions with courtesy and consideration — as well as the rule of law principles supporting stare decisis mean that prior decisions should be followed unless the Spruce Mills criteria are met. Correctly stated and applied, the Spruce Mills criteria strike the appropriate balance between the competing demands of certainty, correctness and the even-handed development of the law. Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances:
The rationale of an earlier decision has been undermined by subsequent appellate decisions;
The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or
The earlier decision was not fully considered, e.g. taken in exigent circumstances.
Analysis
48Jaiden Robinson has lived his life under the yoke of racism and colonialism. His background reflects a textbook Gladue profile: entrenched intergenerational trauma, compounded childhood abuse and addiction, and systemic disadvantage, alongside clear evidence of resilience and rehabilitative potential when supported through Indigenous-led programming. His offending behaviour is best understood as the culmination of these intersecting factors, significantly mitigating culpability and strongly engaging the remedial purpose of Gladue principles.
49Hilbach emphasizes that, even if factors could reduce the sentence below the five-year minimum in these cases, the principles of deterrence and denunciation take precedence. The Supreme Court of Canada notes that Parliament has set a minimum sentence for armed robbery, a penalty it has upheld.
50In her judgment in R. v. Hillaire10, Justice Dennison makes that point clear:
64There is a fundamental unfairness with mandatory minimum sentences as it relates to considering any mitigating factor. One can envision a reasonable, hypothetical worse Indigenous offender than Mr. Hilbach where a fit and appropriate sentence would be above the 5-year mandatory minimum sentence. That offender would be able to have their Indigeneity considered as a factor in determining the fit sentence and the sentence imposed could be lower than it otherwise would have been. In contrast, Mr. Hilbach’s Indigeneity cannot be used [to] reduce the sentence below the 5-year mandatory minimum sentence. That is the harsh reality of mandatory minimum sentences as the law currently exists.
[Emphasis Added]
51As a result, Jaiden Robinson’s Black and First Nations heritage, the harsh impact on him as a vulnerable person, and the potential effects of intergenerational trauma on his time in custody are not grounds for any Duncan credit. One presumes that the Court in Hilbach and Hilaire understood that the harsh sentences imposed on those Indigenous offenders were imposed despite the personal circumstances of the young Indigenous men, whose similarly sympathetic backgrounds, in other circumstances, would have provided significant mitigation at sentencing because of their reduced moral culpability. The same applies to Mr. Robinson. He does not benefit from the personal mitigating circumstances of his background by way of a sentence reduction or extra credit.
52I accept her analysis, but in the circumstances outlined below, I note that Justice Dennison did not have before her a situation in which the correctional institution acted with such disrespect and flagrant disregard for the cultural and traditional beliefs of inmates who are entitled to accommodation for those beliefs and ceremonies. As a result, I find that Justice Dennison’s judgment in Hillaire did not anticipate actions by correctional institutions that significantly increased the harsh conditions for at least this Indigenous inmate, well beyond what might be anticipated for a vulnerable First Nation man with reduced moral culpability because of the systemic and background factors usually considered as mitigation.
53This request for Duncan credit is made due to the actions and neglect of the Toronto South Detention Centre. Jaiden Robinson has been detained there since his arrest in March 2024. After his arrest, which involved enough force to cause injuries, and following his treatment and assessment at the hospital prior to his incarceration, he was sent with a recommendation to evaluate his ankle injury and broken tooth, both of which the hospital advised should be treated following his discharge from the hospital. Over more than two years, despite his repeated requests and the oversight by presiding Justices in the Ontario Court of Justice, his medical and dental needs have been consistently ignored.
54This is a chronic and serious problem that other jurists and I in Toronto have repeatedly commented on, and it persists despite repeated admonitions and reduced sentences for serious offences, owing to the correctional institution's negligence.
55Chronic lockdowns and overcrowding remain serious health and safety issues. Mr. Robinson’s affidavit details the impact on his mental health. The impact of lockdowns affects his access to fresh air, sunlight, and programming, not to mention basic human contact, such as the freedom to call his family or counsel, and to speak with or connect to anyone other than his cellmate. These staff shortages, which lead to lockdowns and restricted time out of his cell, also, no doubt, contribute to overcrowding and to having to triple bunk in cells barely suitable for two inmates.
56These conditions in the South, however, pale in comparison to the actions the South took to close the Indigenous range. It meant a limited ability to participate in ceremonies, smudging, and other traditional practices that would otherwise be afforded to inmates through the NILO. When a teepee used for feasts and ceremonies blew down during a storm, they refused the inmates’ request to rebuild it because of the lack of a NILO.
57It appears their decision to deny Indigenous inmates access to their culture was deliberate, as they also left the Native Inmate Liaison Officer (NILO) position vacant during his incarceration.
58What was particularly galling were the actions taken by correctional officers in September of 2025 who removed traditional art, teachings, prayers, and posters of Indigenous heroes that remained on the walls of the former Indigenous range and disposed of them in the trash. They also confiscated medicine pouches that had been previously gifted to Indigenous inmates on those ranges. It is hard to fathom that the teachings and symbols of the Islamic, Jewish, or Christian faiths would have been so casually discarded in a trash bin.
59Mr. Robinson and other inmates were ultimately permitted to retrieve these items from the garbage. Inmates, including Jaiden Robinson, filed a joint statement with the institution to complain, describing what they considered deeply offensive and hurtful actions stemming from the disrespectful treatment of their beliefs and culture.
60The appalling actions of the correctional officers, who showed such contempt and disregard for the culture and beliefs of the Indigenous inmates, are compounded by the image of a group of Indigenous inmates rummaging and diving through a dumpster to retrieve remnants of their culture and teachings, carelessly discarded by the officers as garbage.
61These actions must be viewed in a broader context, not only as disrespectful to inmates and their beliefs but also considering the Government’s position on Indigenous inmates and their access to cultural items and programming. The Government of Ontario website, under the Courts, justice and law section, has a page dedicated to Indigenous Spirituality in Correctional Services, which states, in part:
Overview
The Ministry of the Solicitor General is committed to providing Indigenous, First Nations, Inuit and Métis inmates access to their traditional spiritual practices, and ensuring these practices are given the same status and protections afforded other faith groups.
Providing inmates with medicine bags, sacred pouches or amulets
A spirit leader, Elder or Healer may provide an inmate with a small medicine bag, sacred pouch and other sacred items during a visit. They must first go through clearance by the NILO, ILW or Chaplaincy and the security manager. Medicine bags or amulets will remain with an inmate in their living unit at all times during their incarceration.
62It is a sad reflection on our criminal justice system that incidents demonstrating such disrespect for Indigenous culture and traditions are still a matter we must consider in the 21st century. On May 28, 2015, the then Chief Justice of the Supreme Court of Canada, The Right Honourable Justice Beverley McLachlin, speaking at the Global Centre for Pluralism’s annual lecture, remarked:
“Canada sees itself and is seen by others as a nation of tolerance. We are a peaceful, multicultural country. The most glaring blemish on the Canadian historic record relates to our treatment of First Nations that lived here at the time of colonization. An initial period of cooperative inter-reliance grounded in norms of equality and mutual dependence, described eloquently by John Ralston Saul in his book A Fair Country, was supplanted in the 19th century by the ethos of exclusion and cultural annihilation.
Early laws forbade treaty Indians from leaving allocated reservations. Starvation and disease were rampant. Indians were denied the right to vote. Religious and social traditions like the potlatch and the Sundance were outlawed. Children were taken from their parents and sent away to residential schools where they were forbidden to speak their own languages, forced to wear white men's clothing, forced to observe Christian religious practices, and sometimes subjected to sexual abuse. The objective was, and I quote from Sir John A. MacDonald, a revered forefather, “take the Indian out of the child” and thus solve what was referred to as the “Indian problem.”
Indianness was not to be tolerated; rather, it must be eliminated. In the buzzword of the day, assimilation, in the language of the 21st century, cultural genocide.”
63This sad echo of our past shameful approach to Indigenous culture is troubling. Canada has a long history of harming Indigenous people. As a society, it is easy to imagine those harms in a historical context, as remnants of the past, shaped by misguided laws and policies seen in retrospect. This is a mistake. We know that Indigenous people have lost faith in the justice system on many fronts.
64These actions by the institution are also to be considered in the broader context of the relationship between Canada and Indigenous Peoples. That broader context is part of the ongoing history of colonialism that has plagued Indigenous Peoples and has again eroded faith in the justice system. The process of healing and reconciliation is marred by ongoing betrayals and by actors’ disregard for the rights and beliefs of the Indigenous Peoples they encounter as government agents. This was clearly conveyed in R. v. Tinker,
16The sentencing judge then considered Mr. Tinker’s Gladue factors pursuant to s. 718.2(e) of the Criminal Code and found they diminished his moral culpability. She accepted that Mr. Tinker had a difficult relationship with the police, and that this relationship had to be considered in a “historical context”, recognizing that “persons in authority exercised great control over Indigenous people and this caused ongoing and long-lasting distress and concern … Police are viewed as part of that group that enforced control”. She acknowledged the recent suicide in Pinehouse and Mr. Tinker’s transportation by police to court along with the rope utilized in the suicide. In doing so, she noted “we don’t need to harken back to any Gladue factors in the past. We certainly should and must, but they’re present in our everyday and they impact us in the courtroom and for Mr. Tinker the impact of colonialism has been very evident”.
R. v. Tinker, 2023 SKCA 54[Emphasis Added]
65The first two paragraphs of the dissent in R. v. Sharma11 make it clear that the criminal justice system has failed indigenous people
114The overrepresentation of Indigenous people in Canada’s prisons is a present-day product of this country’s colonial past. As Indigenous incarceration rates have climbed, and those of Indigenous women have soared, some have compared Canadian correctional facilities to residential schools (see Truth and Reconciliation Commission, The Final Report of the Truth and Reconciliation Commission of Canada, vol. 5, The Legacy (2015), at p. 219). Like residential schools before it, this overincarceration is an ongoing source of intergenerational harm to families and communities. It is a striking sign of the discrimination that Indigenous peoples experience in “all parts of the criminal justice system” (Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 57). And it remains a poignant obstacle to realizing the constitutional imperative of reconciliation.
115Sentencing 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.
66The institution's actions against Jaiden Robinson constitute state conduct that falls below acceptable standards of humane detention. They reflect a serious pattern of systemic neglect rather than mere isolated deficiencies, after more than a decade of the same excuses for lockdowns, triple bunking, and wanton disregard for the health and welfare of inmates in their fiduciary care. The South and other similar correctional actors have failed to protect and care for inmates. A serious lack of appropriate accommodations for medical, psychiatric, and cultural needs has been the norm.
67It would be easy for me to simply state that the Toronto South Detention Centre failed to follow its own policies protecting the rights of Indigenous inmates, in particular, Jaiden Robinson. This would be an inaccurate statement. The South did not fail to protect Jaiden Robinson’s rights; it deliberately chose not to follow its own policies protecting the rights of Indigenous inmates.
68For all these reasons, I find that the need to send a message to correctional institutions, in particular the Toronto South Detention Centre, demands that Jaiden Robinson be accorded Duncan credit for the particularly harsh and demeaning conditions under which he was detained.
69Justice Molloy, in R. v. Reid12, in yet another sentencing for a serious offence, commented on the need to quantify the Duncan credit as “[t]his provides a better picture of what the “real” sentence is for the offence (providing better precedential value for the decision) while providing more transparency with respect to the extent the harsh conditions in the institution affected the sentence.”
70And later, at paragraph 37, she highlighted the chronic nature of this problem:
37This is not an isolated problem. It is endemic and ongoing. For the past several years, I and numerous other judges, have written often about this problem and granted additional reductions in sentence for unacceptably harsh conditions at the Toronto South Detention Centre (and other nearby institutions). And yet, the underlying problems persist. Such reductions have now become more the norm rather than the exception.
71She concludes in paragraph 41 that there is no specific formula for these breaches. In that case, the reduction was for significant lockdowns and triple bunking.
41There is no science to the calculation of the reduction for the Duncan factor. Sometimes, it is based on a multiplier applied to the number of days when the conditions were particularly harsh; sometimes it is expressed as an additional multiplier for the whole of the time served (for example, an additional half day for all the days served, effectively granting a 2:1 credit for time served when the Summers credit is added; other times, it is simply what the sentencing judge considers to be a fair reduction for the overall harshness of the circumstances. In this case, the conditions were more generalized and a simple multiplication of the days does not reflect the harshness of the impact of overlapping lockdowns and triple-bunking. In my view, the appropriate reduction for the harsh conditions is 1.7 years.
72Jaiden Robinson’s pre-trial custody was marked by repeated 24‑hour lockdowns, effectively resulting in significant periods of solitary confinement, overcrowding, inadequate hygiene, and persistent medical and psychiatric neglect, including the failure to treat documented injuries despite judicial orders. These conditions caused psychological harm and disrupted his ability to maintain family and cultural connections, particularly as an Indigenous person whose cultural practices were disregarded and wantonly discarded in the trash. As these conditions were not attributable to his conduct but to systemic institutional deficiencies, they render his remand custody significantly more punitive than what should be tolerated in a fair and just society. I have given this factor substantial weight in determining a fit sentence by applying enhanced credit.
73Some decry what they call the Court’s catch-and-release approach to criminal justice. If they truly believe that incarceration is the answer to our criminal justice problems, they should admit that the correctional institution’s neglectful approach to inmate care has led to shorter sentences, less time in custody, and lower rates of incarceration, even for serious offenders in some cases. The jails are the ones failing the community, the inmates, and the justice system.
Conclusion
74Jaiden Robinson, as of June 1, 2026, has served 809 days of pre-trial custody. Summers entitles him to credit for 1,213 days. In light of the deeply aggravating and chronic lack of care for his health and well-being, and in particular, the significant breach and complete disregard for his culture and traditional practices, and the egregious disregard for culturally significant items and the demeaning manner in which the inmates had to retrieve these items themselves from the garbage bins, leads me to grant him a further Duncan credit for these particularly harmful conditions of 611 days. He will therefore be sentenced to one further day.
Released: June 9, 2026
Signed: Justice André Chamberlain
Footnotes
- R. v. Duncan, 2016 ONCA 754, [2016] OJ No 5255.
- R. v. Duncan, 2016 ONCA 754, [2016] OJ No 5255, at para. 6.
- R. v. Marshall, 2021 ONCA 344, 2021 CarswellOnt 7286, [2021] O.J. No. 2757, 174 W.C.B. (2d) 8.8
- R. v. Brown, [2025] O.J. No. 863 | 2025 ONCA 164.
- R. v. Vassal, 2022 ONSC 3696, 2022 CarswellOnt 9220 at para. 30.
- R. v. Fogah-Pierre, 2024 ONSC 386, 2024 CarswellOnt 471.
- R. v. Hilaire, [2024] O.J. No. 2264 | 2024 ONSC 2910 at paras. 41 to 44.
- R. v. Sullivan, 2022 SCC 19, [2022] 1 SCR 460.
- R. v. Hilaire, [2024] O.J. No. 2264 | 2024 ONSC 2910 at para. 64.
- R. v. Sharma, 2022 SCC 39, [2022] 3 SCR 147.
- R. v. Reid, 2026 ONSC 136 at para. 33.
- R. v. Hilbach, 2023 SCC 3, 2023 CSC 3, 2023 CarswellAlta 169.