Court of Appeal for Ontario

Date: 2025-06-30
Docket: COA-24-CR-1037
Before: David M. Paciocco, J. George, L. Favreau JJ.A.

Between:
His Majesty the King (Respondent)
and
Josiah Lowe (Appellant)

Appearances:
Paul Socka, for the appellant
Katie Doherty, for the respondent

Heard: June 25, 2025

On appeal from the sentence imposed on July 24, 2024 by Justice Andrew W. Brown of the Ontario Court of Justice.

Reasons for Decision

Introduction

[1] The appellant pleaded guilty to, and was found guilty of, three counts of robbery, one count of possessing property obtained by crime over $5,000, and one count of wearing a disguise with the intent of committing an indictable offence. He received a global three-year penitentiary sentence.

[2] The appellant seeks leave to appeal sentence. If leave is granted the appellant asks that his sentence be reduced to 12 months, on a time served basis. In the alternative he asks that we substitute a sentence of two years less a day and permit him to serve it on a conditional basis in the community. In the further alternative, he asks that his custodial sentence be reduced to two years less a day. He argues that the sentencing judge: 1) misapplied the law regarding anti-Black racism; 2) erred in principle by prioritizing denunciation and deterrence; and 3) erred in providing a formulaic credit for his bail conditions.

[3] The appellant also seeks to introduce fresh evidence that speaks to his rehabilitative efforts since being sentenced.

[4] At the conclusion of the oral hearing we advised counsel that the appeal was dismissed with reasons to follow. These are our reasons.

Background Facts

[5] When he was 18 years old, the appellant, a Black man, robbed three pharmacies along with three accomplices – an adult co-accused and two youths. The three robberies were committed on the same day, all in the Niagara Region. They travelled to Niagara from Toronto for that purpose.

[6] All of the robberies followed the same pattern: the appellant and the two youths would enter the pharmacies wearing black ski masks and demand money and drugs, while the adult co-accused waited for them outside in a car. During one of the robberies the appellant pushed a clerk; during another robbery one of his accomplices pushed a pharmacist with a cane. None of them had, or suggested to anyone that they had, weapons. They stole approximately $8,000 worth of drugs and $600-$800 in cash. The police arrived during the third robbery and arrested all of the participants.

Proceedings Below

[7] The Crown sought a four-year penitentiary sentence.

[8] The appellant sought a conditional sentence of two years less a day. His counsel highlighted the appellant’s guilty plea, young age, and the fact he had no prior criminal record. Counsel relied heavily on the favourable presentence report (“PSR”) and noted that the appellant was a young Black male who had experienced anti-Black racism, including at the hands of the police and while at school. Through the PSR the court learned that the appellant’s biological father was arrested for drug offences when he was four years old and deported two years later; and that the police had executed a search warrant at the appellant’s home on two occasions, when he was seven and fourteen. The court was also told that the appellant was bullied because of a speech impediment, and that he had lost two friends to gun violence and another who was kidnapped and murdered.

[9] The sentencing judge accepted the Crown’s submission that the objectives of general and specific deterrence “must take priority” because the offences were pharmacy robberies. He noted that pharmacies were “ripe targets”; pharmacy employees and patrons were particularly vulnerable; the offending behaviour was not impulsive but rather planned and somewhat sophisticated; and the appellant, who was not a “‘shrinking’ follower”, was motivated by greed and not addiction.

[10] The sentencing judge concluded that the appellant’s experiences with anti-Black racism did not reduce his level of moral blameworthiness. He accepted that the appellant had experienced systemic racism but did not find there to be a connection between those experiences and these offences:

[The offender] was in his own words motivated by greed. He had in the recent past worked in various retail positions. He has the support of his mother and other family members. The offender had other options, he could and should have made other better choices.

[11] The sentencing judge found that “given the violent nature of the offences, the seriousness of same and the high degree of moral blameworthiness of the offender” a conditional sentence could not achieve the objectives of denunciation and deterrence. The sentencing judge imposed a three-year penitentiary sentence which he reduced by 50 days to account for the time the appellant had spent in pre-sentence custody (Summers credit), and 70 days to account for the harsh conditions of his pre-sentence custody (Downes credit).

Discussion

Anti-Black Racism – R. v. Morris

[12] In our view the sentencing judge properly considered the principles from this court’s decisions in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641; and R. v. Morris, 2023 ONCA 816. He recognized that “some connection must be shown between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue”: Morris (2021), at para. 97.

[13] In the end, however, the sentencing judge was not satisfied that there was “some connection” between the appellant’s experiences and the criminal conduct such that his moral blameworthiness was attenuated. In light of the record before him, in particular the appellant’s indication that he committed these robberies for “greed” despite his access to employment opportunities and the support of his family, this was a reasonable conclusion. We do not find that the trial judge misapplied the test by referring on one occasion to a “close connection”. When the entirety of the judgment is read, it is apparent he understood the correct standard to apply.

[14] The sentencing judge repeatedly cautioned himself against the need for a causal connection, and his reasons cannot be reasonably interpreted as requiring that. What he did do was, after taking all of the circumstances into account, conclude that the appellant’s level of moral blameworthiness was not reduced by his past experiences with racism. This was open to him.

Sentencing Judge’s Application of the Sentencing Principles

[15] Nor did the sentencing judge err in his application of the relevant sentencing principles. He was alive to them all, expressly noting that the appellant was a youthful first-time offender. He also expressly adverted to the principle of restraint and that any first period of incarceration needed to be as short as possible. The appellant is essentially asking us to reweigh the various factors, which is not our task.

[16] As for the suitability of a conditional sentence, the sentencing judge referred to the Supreme Court’s decision in R. v. Proulx, 2000 SCC 5, 182 D.L.R. (4th) 1 and noted specifically that a conditional sentence is available even where denunciation and deterrence are pressing. Then, after considering all of the applicable factors, the sentencing judge reasonably determined that neither a conditional sentence nor a custodial sentence of less than two years were fit in the circumstances. That another judge might have decided differently is no basis on which to disturb this conclusion.

Treatment of the Appellant’s Bail Conditions

[17] Lastly, we are not persuaded by the appellant’s argument that the sentencing judge erred by apportioning a specific reduction to the mitigating impact of his time spent on bail. While Downes credit is best conceptualized as a mitigating factor, the sentencing judge’s decision to grant numerical credit is “not necessarily inappropriate” so long as it does not “skew the calculation of the ultimate sentence” by giving the credit unwarranted significance: R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at paras. 107-8, 112-4; R. v. Marshall, 2021 ONCA 344, at para. 53. Crediting 70 days to account for strict bail conditions in this case did not “skew the calculation” of the ultimate sentence.

Conclusion

[18] For these reasons, while we grant leave to appeal sentence the sentence appeal is dismissed.

“David M. Paciocco J.A.”
“J. George J.A.”
“L. Favreau J.A.”