Indictment No. CR-22-10000025

Superior Court of Justice

HIS MAJESTY THE KING

v.

JAYSON JEYAKANTHAN

AND JANSON JEYAKANTHAN

REASONS FOR SENTENCE

BEFORE THE HONOURABLE MADAM JUSTICE A. MOLLOY

on February 8, 2024, at TORONTO, Ontario

APPEARANCES:

M. Goldenberg Counsel for the Crown A. Singh Counsel for Janson Jeyakanthan S. Weinstein Counsel for Jayson Jeyakanthan

Superior Court of Justice

Table of Contents

Witnesses

Examination in-Chief

Cross-Examination

Re-Examination

Exhibits

EXHIBIT NUMBER

ENTERED ON PAGE

Transcript Ordered: February 2, 2024 Transcript Completed: February 26, 2024 Notified Ordering Party: February 28, 2024

Legend [sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) - Indicates preceding word has been spelled phonetically.

Thursday February 8, 2024

I have hand-written reasons that I will read into the record. If there – if a transcript is ordered I may edit for you know grammar and syntax and that sort of thing, but nothing of any substance will change. And I will hang on to my written reasons. If there’s an order for the transcript you can let them know I have them.

All right. These are lengthy. I apologize.

REASONS FOR SENTENCE

Molloy, J. (Orally):

A: Introduction

For reasons stated September 29th, 2023 I found Janson Jeyakanthan (Janson) and Jayson Jeyakanthan (Jayson) guilty of a number of firearm related offences. See R. v. Jeyakanthan, 2023 ONSC 5370.

It is now my task to sentence both offenders for these offences.

B: Circumstances of the offences

Jayson and Janson are brothers. They were together in a McDonald’s at Queen and Spadina at about four o’clock a.m. on September 8th, 2019.

Jayson got into a verbal altercation with a patron there, Leighton Edwards, in the course of which Jayson raised his shirt and displayed, in a threatening manner, a firearm sticking out of his waistband.

Mr. Edwards, fearing he would be shot, lunged for the gun whereupon Janson punched him in the head, knocking him to the ground. I have found that punch to be self-defence.

Mr. Edwards ran out of the restaurant and Janson chased after him, but returned a short while later. He and Jayson left the restaurant and walked north along Spadina. They saw a police car approaching and ducked into an alleyway.

They were arrested by police when they emerged a short while later. The police searched the alley and found two loaded firearms under a parked car. I found Jayson guilty of the following: 1. carrying a concealed weapon (“the McDonald’s gun”) at McDonald’s and on Spadina; 2. possession of that same loaded firearm, contrary to section 95; 3. careless storage of the McDonald’s gun under the car, contrary to section 86; 4. careless storage of the second gun under the car, contrary to section 86.

I found Janson guilty of the following: 1. joint possession of the McDonald’s gun while on Spadina Avenue (but not knowing that it was loaded); 2. carrying a concealed weapon as a party to Jayson carrying the McDonald’s gun up Spadina Avenue; 3. careless storage of the McDonald’s gun; 4. careless storage of the second gun; 5. breach of recognizance by being in possession of a weapon; 6. breach of recognizance by being out of his residence.

I’m just going to pause in the reasons for a second. Ms. Goldenberg were you asking for forfeiture? I couldn’t – I didn’t have it in my notes, but....

MS. GOLDENBERG: Yes, I think you’ve already signed it.

THE COURT: Oh, okay.

MS. GOLDENBERG: I’ll just check that.

THE COURT: I’ll just add it and you can figure out later if I’ve already done it or not.

C. Position of the parties

The Crown seeks a global sentence of 7 years for Jayson Jeyakanthan. In addition, the Crown asks for a DNA order, a section 109 weapons prohibition order for life, a forfeiture order, and a section 743 no contact order with respect to the victim, Leighton Edwards.

The defence submits that the appropriate global sentence is three to four years before any deductions for time served and compensation for Charter breaches. There is no issue with respect to the ancillary orders.

For Janson Jeyakanthan, the Crown submits that three and a half years is the appropriate sentence, as well as a DNA order, forfeiture, and a section 109 order for life. There is no issue with respect to the ancillary orders. However, defence counsel submits that the appropriate sentence is one to two years and that, after deductions for pre-trial custody and restrictive bail conditions this will amount to time served.

D. Circumstances of the Offender, Jayson Jeyakanthan

Jayson was 28 years old at the time of the offences. He has a long and related criminal record. That record starts with convictions in youth court on June 11th, 2008 for crimes of considerable violence: robbery, and extortion; break and enter and careless storage of a firearm; breach of recognizance. He was sentenced to two years’ probation.

While still on that probation he was convicted of assault on December 29th, 2009, this time as an adult. Again, he was convicted of breaching his recognizance and also obstructing police.

In 2014 he was convicted of breaching his probation. There is then a bit of a gap until 2019 when he committed the offences now before me. In 2019 Jayson was released on bail with respect to these charges.

In May 2022 the terms of his bail were relaxed to remove the ankle monitoring and house arrest provisions, but to still maintain a curfew. Within weeks he had breached his bail terms. He was found with a group of nine or ten other people at two hotels in downtown Toronto from three a.m. one day and into the next day.

A gun was left at the first hotel and two more were found at the second hotel. He was convicted in March 2023 of breaching his bail and sentenced to 60 days’ time served, which was counted as 90 days. He pleaded guilty to that offence. The firearms charges were withdrawn.

I am unclear in my mind as to what he did for a living. In his affidavit filed on sentencing, he complained about the difficulties of house arrest which prevented him from getting back into the studio so his “music career” was put on hold. He said he felt demoralized by being unproductive. All he could do was day-trading and investing in cryptocurrency online, which he said did not generate the level of income he was previously making. He did not specify how much he made at that previous occupation, or what that was, or how much he made while trading online. Letters of support were filed by his fiancée and her mother, but they provide little insight.

His father also filed a letter of support referring to his son as a “well-raised young man” who excelled in sports, excelled in academics, and spent hours helping people in the community. He said Jayson attended university, but came back to help in the family business, which the father opened in 2008.

He also said Jayson had been working with the family business ever since it opened and was trusted with “all customer service related issues” and had never left the customers, or his family down. His father said, “He pours all his energy into this work and we couldn’t be prouder parents.”

There is no reference to his criminal record and no reference to his music career and no reference to his inability to work while he was under house arrest on bail.

Another brief letter of support filed by a family member who is described as a director of the family company said that “Jayson is head of management for our company and has been with the company from the start.” Again, there is no reference to his inability to work while on bail, his music career, or his criminal record.

At the time of Jayson’s arrest, he was verbally abusive to the officers and struggled violently with them to the extent that he had to be restrained and carried to the police car for transport to the station. He was also seriously intoxicated.

E. Circumstances of the Offender Janson Jeyakanthan

Janson was 26 years old at the time of the offence. He has no criminal record, apart from one conviction for failure to comply. He was born in Canada, but his parents immigrated here from Sri Lanka.

He has lived with his parents in Brampton his whole life. He graduated from high school and enrolled in the University of Waterloo Business Management faculty, but dropped out in 2014 before completing the program.

With the help of his father, he apparently got a job working as a sales representative for a hardwood and hardware company. However, in an affidavit he filed on sentencing Janson said that two close friends died in May 2018. One was a suicide and the other was shot and killed. Also, his 12-year-old dog died around the same time.

He describes these losses as taking “a significant toll” on his mental health and well-being. He said he quit his job and “shortly thereafter began to lose the positive trajectory that [his] life was headed towards.”

He reports having enrolled in an online program at Humber College in July of 2023 to complete the real estate licensing requirements. His plan is to complete that upon his release from prison.

F. Denunciation, Deterrence and Rehabilitation

Many of the cases cited by the Crown refer to the dangerous nature of firearms and the threat they pose to the safety of our community. I will not refer to those cases in any detail here. I agree entirely with these authorities. It is because of the problems with firearms in our community that judges at all levels of court have stressed, over and over again, that denunciation and deterrence are the most important factors for sentencing in crimes of this nature.

I recognize that rehabilitation is also an important factor. However, I do not see it as particularly compelling for either of these two accused.

G. Aggravating and Mitigating Factors

Clearly the most aggravating factor in this case is that the firearms were being carried around in a public place at very serious risk to the safety of the public. Even worse, Jayson displayed one of the firearms in a menacing way at McDonald’s, which was filled with patrons who were just coming out of the many nightclubs in the area that had recently reached closing time.

Then, both brothers were responsible for discarding two guns in an alleyway, fully loaded, an even greater threat to the public in general and whoever came upon the guns in particular. Fortunately, they were discovered first by the police, not by an innocent bystander.

For Jayson, his criminal record is an aggravating factor. For Janson, it was aggravating that he was on bail at the time and in breach of two of the terms of his bail order, specifically that he not be out of his residence, and that he should not have been in possession of a firearm.

Both brothers were intoxicated, which is an aggravating factor particularly when firearms are involved. Both brothers initially lied to the police about their true identities and were carrying fake identification, which I take to be a clear indication of criminality.

The mitigating factors are minimal. They come from a hard-working, supportive family. I do not see any true signs of remorse, or insight into their wrongdoing on the part of either offender. When given an opportunity to speak to the Court at the sentencing hearing Jayson apologized to the victim and everybody affected by his actions, as well as to his family for the hardships they had been caused.

Janson spoke in a similar manner saying he was, “sorry”. He was a little more detailed in his affidavit, particularly with respect to his family, however, I saw no real signs of true remorse in either of them.

The absence of remorse is not an aggravating factor. However, it can be a distinguishing feature when comparing this case to others in which remorse is clearly present.

A further aggravating factor for Jayson is the impact his conduct had on the victim, Leighton Edwards. Mr. Edwards was an outgoing, chatty sort of person and perhaps Jayson saw him as annoying, or interfering in something that wasn’t his business. However, displaying a firearm as a threat to Mr. Edwards was an outrageous overreaction to whatever perceived slight there might have been.

This has had a significant impact on Mr. Edwards who was understandably in fear for his life at the time. He completed a victim impact statement in October 2023 more than four years after this event. He stated that the event had an affect on his relationship with his friends and family, causing him to keep his distance. He was wary of strangers, concerned that they will cause him harm. He stated, “Daily life has been an issue.” He reported being late for work a few times due to his anxiety and losing his job as a result.

H. Moral Blameworthiness

Counsel for Janson argues that his level of moral blameworthiness was less than that of his brother. I agree that as the person who displayed his gun in the course of an argument in a crowded McDonald’s Jayson’s responsibility for these offences is greater. However, I do not see Janson as simply being “along for the ride”, or merely being in the wrong place at the wrong time.

He and his brother were out and about with fake identification that night. They both were involved in discarding the firearms in the alleyway when police approached. I do not accept his admission that his sentence should only be half of the sentence of his brother. From the time Jayson displayed his gun in McDonald’s Janson knew about the gun and appeared completely unperturbed. He did take the lead in taking Jayson out of the restaurant and up Spadina Street, but he was an active participant in fleeing from the police and pitching two guns under a parked car where any innocent member of the public could come upon them.

Both guns were fully loaded. One with an extra capacity magazine. I was not satisfied beyond a reasonable doubt that Janson knew the guns were loaded, or which of them knew about the overcapacity magazine, although surely one of them did. However, the fact remains that the potential consequences of their actions was highly dangerous.

Definitely, Janson is less morally responsible for some of the offences, particularly being a party to Jayson’s possession. However, I do not accept the submission that his sentence should therefore be one-half that of his brother.

I also note that Janson was in breach of his bail at the time, which is aggravating.

I. Appropriate Sentence for Jayson Jeyakanthan

The Court of Appeal held in R. v. Nur, that the sentencing range for possession of a loaded firearm for a first offender in a “true crime” situation is three to five years.

Aggravating and mitigating factors can move that range up or down. I see no mitigating factors that are sufficiently strong to move that range down for Jayson.

There are several aggravating factors that move it up: he has a prior criminal record; he carried the loaded gun in public; he displayed the gun in a threatening way, in a crowded McDonald’s; the impact on the victim; the flight from the police; there were two guns, not one; they were highly dangerous because they were fully loaded with one in the chamber ready to fire instantly; and both guns were discarded under a car in a public alley, where an unsuspecting person who found them could be seriously injured, if not killed.

There were also factors that distinguish Jayson’s case from that of other cases relied on by the defence, for example where systemic factors such as race and cultural background were mitigating, and cases where there were guilty pleas with genuine remorse and excellent prospects of rehabilitation.

It is important to review sentences imposed on similar offenders for similar offences in similar circumstances in order to reflect the principle of parity of sentence. In my view the cases cited by the defence are largely distinguishable on the basis I have already stated as follows:

R. v. Beharry, 2022 ONSC 4370 (loaded firearm in a motor vehicle): There was only one gun and no criminal record. Systemic and race issues were mitigating factors, as were health issues. The accused carried the gun for defensive purposes, although this was given limited weight and he never displayed the gun. Four years for possession of a firearm in a car, plus two prohibition order breaches, a total of four years. The totality principle lead to a reduction of the global sentence and the criminal record was worse.

R. v. Yusuf and Ahmed 2020 ONSC 5524 (40 months for possession of a firearm in a car): This was a 19-year-old first time offender and turned largely on the similarities to Nur.

R. v. Griffith, 2019 ONSC 358 (possession of loaded firearm, trafficking in cocaine and crack, failing to comply with a probation order and prohibition order): In that case a 22-year-old offender with a criminal record had the gun in public with drugs, which is aggravating. There was a global sentence of six years, with four years allocated to the firearm.

R. v. Tabnor, 2021 ONSC 8548 (Five years for possession of a firearm with a prohibited overcapacity magazine): In that case, the gun had been used in a shooting which is more aggravating than Jayson’s circumstances. However, there were systemic race factors and only one gun. As well, there was no criminal record and he was 23 years old.

R. v. Donison, 2022 ONSC 741 (4-year sentence for one loaded gun carried in public and another unloaded gun kept elsewhere, both possessed in connection with street level drug dealing): The total sentence in that case was 8 years, which included drug trafficking and breaching prohibition orders, with 4 years allocated to the firearms. This was a 27-year-old offender, there were systemic racism issues, and added weight was given to the objective of rehabilitation.

R. v. Kabanga-Muanza, 2019 ONSC 1161 (Three and a half years for possession of a firearm, plus one year for breaching a prohibition order): This was a 22-year old accused who had a difficult upbringing and had made significant strides towards rehabilitation while in custody.

R. v. Mohidin, 2020 ONSC 47: (38 months for possession of a loaded handgun in a motor vehicle). The Crown sought a sentence of 32-36 months.

R. v. Caidenhead, 2015 ONSC 3125 (18 months for a loaded firearm in public, plus six months consecutive for breach of probation): This was a 20-year-old accused who had a minor criminal record for theft of a bottle of liquor from the LCBO. He had tragic personal circumstances. When he was only two years old his father stabbed his mother to death and then committed suicide by jumping off the balcony. He was found to be remorseful and had good prospects of rehabilitation. I also note that this was prior to the Court of Appeal and Supreme Court of Canada in decisions in Nur.

R. v. Brown, 2013 ONSC 4230 (Three years for possession of a loaded firearm in a car and crack cocaine.) This was a 27-year-old accused with no criminal record who had been the victim of several assaults, including one where he was shot and lost an eye. The case was prior to the Court of Appeal in the Supreme Court of Canada’s decision in Nur. He had done volunteer work with youth in the community and was an involved and caring parent.

R. v. Reid, 2021 ONSC 5174 (Possession of a loaded firearm in a parking lot). There was a prior record for drugs, but not firearms or violence. The Crown sought 3-4 years and he was sentenced to 3.5 years. This was a 43-year-old accused who had immigration consequences which were taken into account in sentencing.

As I have noted several of these decisions pre-dated The Court of Appeal and Supreme Court Canada decisions in Nur and did not have that guidance with respect to the range of sentence.

Also, in some cases there was a global sentence, including the firearm offences with others and then allocating a portion to the firearm possession charges. Those kinds of cases are not as reliable an indicator of what the firearm sentencing would have been standing alone.

Many of the cases are distinguishable by the presence of mitigating factors not present here. The defence also relied on R. v. Douale, 2018 ONSC 3658 and in written argument referred to it as being at the top of the range that should apply to Jason.

In Douale, Justice Corrick sentenced the offender to five years for possession of a loaded firearm and an additional one-year for breaching a prohibition order. The offender was similar in age to Jayson. He had been walking along the street when he got into an altercation with two men and brandished his firearm. There was a struggle for the weapon and somebody called the police. When the police arrived Mr. Douale refused to drop the gun and was tackled to the ground by police and then the gun was forcibly removed from him.

The defense points out that there were aggravating factors that were applicable to Mr. Douale that do not exist here. I agree. Mr. Douale’s criminal record was more serious and his most recent conviction was four years prior to this conviction, whereas Jayson’s criminal record had no entries on it for ten years prior to this incident., Further Mr. Douale was a drug trafficker who carried a firearm as a tool of his trade.

I agree that guns and drugs have frequently been referred to as a lethal combination. There is no evidence that Jayson was a drug dealer, nor any evidence about why he and his brother were out that night with two fully loaded firearms. However, it was clearly a true-crime situation. I refer again to the false identification they were both carrying.

Mr. Douale had also been charged with robbery. He had been prepared to plead guilty to possession of the firearm at an early stage, but not for the robbery. Justice Corrick saw this as him taking responsibility for the firearm offences at an early stage. He was acquitted on the robbery. Therefore, although not technically a guilty plea, it was akin to that. Also Mr. Douale had only one gun, whereas Jayson openly displayed one and had possession of another one, at least as a party.

The danger to the public was somewhat worse in Jayson’s case, because he brandished his gun in a crowded, fast-food restaurant, as opposed to on a street. On the other hand, Jayson refused to comply with police demands at the time of his arrest and had to be tackled to the ground, but he had already thrown the gun away so the arrest situation was not quite as dangerous for the police.

Defence counsel seeks to distinguish many of the cases relied upon by the Crown on the basis that they involved drugs in addition to firearms. I agree that this is an important distinguishing feature. Also, many of the offenders in those cases had more serious criminal records.

In my view the most relevant of the cases cited by the Crown, in addition to Nur are: R. v. Lights, 2020 ONCA 128; R. v. Mahamet-Zene, 2018 ONSC 1050; R. v. Mansingh, 2017 ONCA 68; and R. v. Khiar, 2015 ONSC 4701.

In R. v. Lights the accused had been convicted of: possession of a loaded prohibited firearm; possession of a prohibited device (an overcapacity magazine); possession of marijuana and cocaine for the purpose of trafficking; and possession of proceeds of crime. The trial judge sentenced him to a global sentence of 9.5 years. The Ontario Court of Appeal set aside the drug convictions as unreasonable, and also set aside the conviction for possession of a loaded prohibited firearm under section 95, because the conclusion that the accused knew it was loaded was unreasonable. The overcapacity magazine was in that firearm. Therefore, the conviction for possession of the magazine was also set aside. The accused was left with two convictions: possession of a prohibited firearm, and possession of proceeds of crime. The Court of Appeal reduced the sentence to five years for the firearm possession (which I note was without ammunition) and three years concurrent for the proceeds of crime (which is the allocation made by the trial judge). There are distinguishing features. This firearm was possessed in an apartment, not out in the public. It was not used to threaten anyone. There was only one gun and it was not abandoned in a public area. On the other hand, it was clear that the apartment was being used by drug dealers and the firearm was connected to that.

It is difficult to draw too much from this case because there is little detail about the circumstances of the accused. However, it is noteworthy that the five-year sentence was imposed for a section 92 offence without proof that the accused knew the gun was loaded.

In R. v. Mahamet-Zene a 24-year-old accused with no criminal record was sentenced to 42 months for possession of a loaded, prohibited firearm. He was seen socializing with a group of people outside a homeless shelter and the outline of a gun in his pants could be seen. When he was apprehended the firearm was inside his backpack, which was hanging off a nearby fence. He had excellent prospects for rehabilitation. Jayson’s circumstances and his offences are far worse.

In R. v. Mansingh the accused discarded a loaded firearm while fleeing from the police. Justice Goldstein sentenced him to 43 months. The offender was a young person with no criminal record. The Court of Appeal upheld that sentence. The firearm possession was connected to low-level drug dealing. However, again, Jayson’s offences were worse and his personal circumstances are not as favourable.

R. v. Khiar is one of the few cases that involved two guns. In that case the police lawfully intercepted telephone communications indicating that Mr. Khiar had purchased two Smith and Wesson firearms. Police surveillance showed Mr. Khiar leaving his apartment with a gym bag and getting into a taxi. He was stopped and the bag was searched. There were two Smith and Wessons in the bag. Neither was loaded, but there was readily accessible ammunition in the bag. He pleaded guilty and demonstrated remorse. He had a criminal record which involved violence with a weapon, but it was 10 years earlier. The offender was gainfully employed at the time, and his prospects of rehabilitation were considered favourable. He also had a difficult upbringing. However, he had breached a prohibition order by being in possession of these guns, which was treated as an aggravating factor. It was also considered to be aggravating that he had these weapons in a taxi on the streets of the city, even though the firearms were not loaded at the time.

I consider Jayson’s situation to be worse. Although I did not find that he had two firearms on his person, he did have two firearms. Having a loaded firearm with one bullet in the chamber in a crowded McDonald’s is far worse than having an unloaded firearm in a gym bag in a taxi. Also, Jayson displayed that firearm in a highly threatening and dangerous manner. Further, he was a party to discarding that firearm and another fully loaded firearm in a public area where the danger to the community was extreme. In addition, he does not have the benefit of the guilty plea and remorse, as was the case in Khiar. In my view his global sentence should be more.

Finally, I come back to Nur, who fled from police and discarded one loaded firearm. His 40-month sentence was upheld by the Court of Appeal and the Supreme Court of Canada. Jayson displayed his firearm in a threatening manner, a factor not present in Nur. He is considerably older than Nur, and does not have the equivalent mitigating factors and prospects for rehabilitation, plus he discarded two fully loaded firearms, not just one.

Taking all of these factors into the account I consider the appropriate global sentence for Jayson to be six years. I allocate that sentence as follows:

• possession of a loaded firearm: four and a half years (the McDonald’s gun)
• carrying a concealed weapon: four years concurrent
• careless storage of the McDonald’s gun: one year consecutive
• careless storage of the second gun: six months consecutive, because he may not have known it was loaded.

That comes to a total of six years. This is subject to credit for time served. The defence also claims a reduction based on the factors in R. v. Duncan, for the harsh conditions of pre-trial custody and a Downes credit for time spent on restrictive bail, as well as a reduction in sentence for breach of his Charter rights.

J. Appropriate Sentence for Janson Jeyakanthan

I will not repeat the review of the case authorities I have already undertaken. In my view Janson should be sentenced at a significantly lower amount for the possession of a firearm and carry concealed weapon. I did not find that he knew the McDonald’s gun was loaded and he was not in actual possession of it, nor was he involved in brandishing it at McDonald’s. Also, he did not have a criminal record. Although I find this is in the “true crime” spectrum, I would go under the three-year floor suggested in Nur, because of the limited period of time he knew about his brother’s possession of the firearm.

In my view a fit sentence is two years. Janson was on bail at the time and was in breach of the two conditions of that bail. Breaching bail should have actual consequences as opposed to being subsumed in the sentence for the substantive offence. I would sentence Janson to six months consecutive for the breach of the recognizance. There are two separate counts, because he breached the recognizance in two different ways. Those two counts should be concurrent to each other, six months for each, concurrent.

I sentenced Jayson to one year for careless storage of the McDonald’s gun and six months for careless storage of the second gun, the distinction being that I was unable to say he knew the second gun was loaded. With respect to Janson, I am unable to say that he knew either gun was loaded. I would therefore make the sentence for Janson six months for each gun. That would bring the total sentence to three and a half years.

I find that the totality of this sentence is on the high-end for a first-time offender playing a more limited role. I would therefore roll it back to three years. To accomplish that end, I will make the two careless storage counts concurrent.

K. Credits and Reductions

(i) Charter breaches

I found there had been some Charter breaches with respect to Jayson in terms of delay in contacting counsel on his behalf and in failing to bring him before the court within 24 hours of arrest.

I did not exclude any evidence arising from these breaches for the reasons set out in R. v. Jeyakanthan, 2023 ONSC 5370. Jayson now seeks a credit of 90 days as a remedy for those two Charter breaches.

R E C E S S

U P O N R E S U M I N G

Molloy, J. (Orally):

In paragraphs 19 and 20 of his affidavit on sentencing Jayson states:

I feel that I was negatively impacted by how I was treated by the police when I was taken into custody. They kept me in custody for approximately 30 hours when they had the opportunity to bring me to bail court a few hours after my arrest. I was locked in a holding cell for over a day with no idea of when I was going to get out, or taken to court. The hours spent in that cell felt like days because there was no way to tell time. Being in that situation made me feel extremely anxious – my mind was racing and I did not know what was going to happen next.

I also did not get the opportunity to speak to either of the lawyers I requested during this period. For my whole time in police custody I wanted to be able to get some advice from somebody I trusted, somebody who could hear my side of the story, not being able to do that made me feel desperate. The police asked me if I wanted to speak to duty counsel, but I wanted to speak to somebody I trusted. Since I couldn’t speak to someone I was not able to pass on the message to my family about where I was, or tell my boss that I would not be able to come to work on the Monday morning.

I did find delay by the police in implementing Jayson’s right to counsel in breach of section 10 of the Charter. However, I also found there was minimal impact on Jayson. Neither of the lawyers he wanted to speak to returned his calls and, as was his right, he refused to speak to duty counsel. In these circumstances I find no basis for any remedy in the form of a credit against sentence.

In my prior decision I noted that there was no impact on either accused as a result of the failure to bring them before the court within 24 hours. Both accused had false identification and provided false names to the police.

It was Jayson who finally disclosed his true identity at 10:30 a.m. After that, the police had to start over again with respect to the various searches and checks required to prepare the package for bail court. In any event when the brothers were brought to court six hours after the permissible time, the matter was simply put over at their request and they did not bring a bail hearing until October 16th, 2019. Thus, none of the time they spent in custody was in anyway attributable to the failure to bring them before the court within the requisite 24 hours. Again, I find no remedy is appropriate in these circumstances.

That same reasoning applies to Janson Jeyakanthan as well, although the only Charter breach for him was the overholding. I am not prepared to provide any additional sentencing credit for either of the two accused with respect to the Charter breach.

(ii) Janson: Credit for pre-trial custody and restrictive bail conditions

Janson has been in custody with respect to these charges for three separate periods of time. The first period of custody was from the date of arrest in September 2019 to May 26, 2020: a total of 262 days. Janson is entitled to a Summers credit on that period of time, which, at 1.5 to one, is a credit of 393 days.

In addition, Janson claims an enhanced credit pursuant to the Duncan/Marshall cases for this period of time. For the period from September 8th, 2019 to March 1, 2020, he was at the Toronto South Detention Centre (“Toronto South”) and was subject to lockdowns for approximately 50 percent of his time there. I have written elsewhere, and many times, about how outrageous and unacceptable this situation at the Toronto South has become. I agree with his counsel’s submission that a further credit of 49 days (97 days times 0.5) is appropriate to reflect these conditions.

I can take judicial notice of the increased number of people being released on bail while the Covid pandemic was at its peak, beginning in March 2020. Many people were being released at that time, both because the already deplorable conditions at the Toronto South had become even worse, and because it was important to reduce the number of people in the institutions for the health and safety of everyone.

I would allow a further 86-day credit, over and above the Summer’s credit, for the 86 days served under those conditions. Pursuant to Marshall, this is really more of a sentence reduction than credit, but I consider it important to quantify it.

Janson filed an affidavit setting out some particulars of the impact on him from the frequent lockdowns at the Toronto South, as well as the difficulties he experienced while on restrictive bail conditions. Janson was on a house arrest bail with GPS ankle bracelet monitoring from May 26, 2020 to January 20th, 2022. He was required during this time to reside with his uncle, aunt, and cousin (who were his sureties) and was not permitted to possess any electronic device capable of connecting to the internet.

He also pointed out that he was prohibited from being in contact with his brother Jayson. This is, needless to say, because they were co-accused on these charges. In his affidavit he states that these conditions resulted in “severe hardship” as it rendered him “feeling useless” and a “burden on my loved ones for a very long time”.

His family paid $610 a month for the GPS monitoring, which he felt guilty about as he could not work, and could not contribute. Because of the non-contact order with respect to Jayson, he missed many family events. However he did not apply to vary the terms of his bail until January 2022 at which time the most restrictive terms were removed and he was subject only to a curfew.

He claims no credit for the period he was under curfew, but seeks 0.25:1 credit for the 605 days on house arrest bail. I have no evidence of non-compliance with these terms. I accept they had an impact. However, the non-contact condition would have kept him away from most family events, regardless of the house arrest.

There is no evidence he had a job to go to, or that upon having the bail terms varied he started working. I therefore do not attach much weight to that factor. He was not working at the time of the events, having quit his job after some losses in his life. The Downes credit for time on restrictive bail is discretionary. I agree some credit is appropriate, but not on the scale claimed. I would allow 60 days credit for this time on bail.

On June 8th, 2022, Janson and Jayson were arrested, along with a number of others, and charged with weapons offences, as well as with breach of the bail they were on for these charges. The circumstances of the bail breach are particularly concerning. A group of nine or ten people had gathered at a hotel room at the Ritz-Carlton in downtown Toronto. Janson was there in breach of the curfew provision in his bail, Jayson was also there in breach of his bail, having arrived at 3:00 a.m. The group moved on from the Ritz-Carlton at about 3:00 p.m. the next day. From there, they proceeded to another downtown hotel, the Delta. Meanwhile, cleaning staff at the Ritz-Carlton found an illegal firearm in the hotel room this group had just left, and called the police.

The police tracked the group to the Delta. There were two more firearms found in the Delta hotel room. Everyone present was charged with possession of the three firearms. Jayson and Janson were also charged with breaching their bail. Ultimately, Janson was convicted of breaching his bail and Jayson pleaded guilty to that charge. The firearms charges were withdrawn by the Crown.

Both brothers went back into custody on June 8th, 2022. Janson was again released on bail on May 2nd, 2023. His period of time in custody after that was 332 days. He claimed Summer’s credit of 498 days for that period of time and a further 92 days for the harsh circumstances of that period of time in custody.

The Supreme Court of Canada held in Summers that the 1.5:1 credit is not automatic, and need not be applied in every case. The Court held that a lower rate could be appropriate if the detention was a result of the offender’s own bad conduct, or if the offender is unlikely to obtain an early release or parole date (see R. v. Hussain, 2015 ONSC 7115 at paragraphs 78-80 and 119).

I agree entirely with the reasoning of Justice Edwards in Hussain and take the same position here. Janson was on a recognizance at the time he committed the offences now before me. Indeed, I have convicted him of two breaches of that recognizance. He spent some considerable time in custody at the Toronto South following his arrest on these charges. He was fully aware of the harsh conditions at the Toronto South, both before and after Covid, because he experienced them first-hand. I have given him full Summer’s credit and also Duncan credit for that period of time. He was then released on bail. While on that bail he breached its terms in a pretty egregious way, in my view.

He did so knowing what the likely result would be if he was caught and knowing what the conditions of any inevitable incarceration would be. In those circumstances I am not prepared to provide any enhanced Summer’s credit, nor any credit under Duncan. He’s entitled to time served, which is 332 days.

Finally, Janson was released on bail on May 2nd, 2023. I revoked that bail on September 29th and he has therefore served another 133 days as of today’s date. I am prepared to allow a further reduction to bring Janson to basically a time served situation, leaving him with one day left to serve.

iii: Jayson: Credit for pre-trial custody and restrictive bail

For Jayson, there are also three periods of custody. First, Jayson was arrested on September 8th, 2019 and released on bail on October 23, 2019.

That is 45 days in custody. He is entitled to a Summer’s credit at 1.5:1 for that time, for a total credit of 67.5 days, which I will round up to 68.

Second, after a period of time on bail, Jayson breached his bail and was again arrested. His bail was revoked. This was the same incident in which Janson was involved. Jayson was then in custody from June 7, 2022 to October 30th, 2022 for a total of 145 days. Sixty days of that time was attributed to his sentence for breaching his bail, leaving 85 days. He is clearly entitled to a credit of 85 days. The question is whether any additional credit should be given.

The third period of time started after I convicted Jayson on these offences and revoked his bail on September 29th, 2023. He has therefore been in custody from that date until today’s date for a total of 133 days. In addition to the Summer’s credit of 1.5:1, Jayson seeks an enhanced credit for the harsh conditions at the Toronto South Detention Center.

In addition, Jayson seeks a credit of 0.25:1 for the periods of time he spent under restrictive bail conditions, which included house arrest and ankle monitoring. There are two such periods of time. The first is from the date he was first released on bail on October 24th, 2019 to May 6th, 2022, at which point the most onerous restrictions were removed and he was subject only to a curfew. That was 231 days.

The second period on restrictive bail went from October 31, 2022 to August 17, 2023, which is 73 days.

He also sought credit for Charter breaches, which I already dealt with earlier in my reasons. I am not allowing anything for that. As I have already indicated, I will award the requested Summers credit for the first period in custody at 68 days.

Jayson was on a restrictive bail from October 24, 2019 to May 6, 2022. It is not clear to me how much this restricted his activity, because of the inconsistencies I’ve already noted in the affidavits before me. However, clearly there were some.

The time on bail before breach was 925 days. Given the circumstances, I find that the 25 per cent of that time claimed as a Downes credit is excessive. I will allow a credit of 100 days.

The second period of custody was from June 7th, 2022 to October 30, 2022, but part of that time was attributed to a sentence for breaching the terms of his bail. The remaining portion is 85 days. For the reasons previously stated, I am not prepared to give any kind of enhanced credit for this period of time. Jayson will simply get time served, which is 85 days.

After the charges relating to the breach of bail and firearm charges from June 2022 Jayson was again released on bail with a house arrest and ankle bracelet monitoring. That was for a period of 290 days. I award no credit for that period of time. Jayson was fortunate that he was not kept in custody throughout. The restrictions on his liberty were directly related to his prior criminal record and the fact that he breached the previous bail that he had been on almost immediately upon the restrictive terms being removed.

Finally from September 29, 2023 to now Jayson has again been in custody because I revoked his bail after registering convictions on these charges. This is a further period of 130 days. I will award the Summers 1.5:1 credit for that period of time, which was 199.5 days, and which I will round up to 200. In addition, I will deduct a further 60 days for the excessively harsh conditions at the Toronto South.

Conclusion

The global sentence for Jayson Jeyakanthan is 6 years, which I have allocated as follows:

• Count 13, possession of a loaded prohibited firearm, the McDonald’s gun, under section 95: four and a half years
• Count 7, carrying a concealed weapon: four years concurrent
• Count 5, careless storage, abandoning the McDonald’s firearm:, one year consecutive,
• Count 6, careless storage of the second firearm: six months consecutive.

I emphasize that I have come to this conclusion based on six years being the appropriate global sentence and then allocating the individual sentences within that total. Against that six years Jayson has already served – you’ll have to check this, I think it’s 263 days, 263 days, which I have credited as 353 days. I will round that up to one year.

In addition, I have allowed 60 days as Duncan credit and 60 days as Downes credit, that leaves four years and 10 months to serve. There will also be a DNA order, a section 109 order for life, a forfeiture order, and a non-contact order with respect to Leighton Edward.

The global sentence for Janson Jeyakanthan is three years, broken down as follows:

• Count 7, party to Jayson carrying a concealed weapon: two years
• Count 11, possession of the McDonald’s gun, section 92 (1): two years concurrent to count 7,
• Count 3, breach of recognizance: six months consecutive
• Count 4, breach of recognizance: six months concurrent
• Count 5, careless storage of McDonald’s gun: six months consecutive
• Count 6, careless storage of second gun, six months concurrent.

That is a total of three years. Against that I have calculated: a credit of 393 days as a Summers credit for the period from September 8th, 2019 to May 26, 2020; 49 days Duncan credit for the period from September 8, 2019 to March 1, 2020; 86 days Duncan credit for the period from March 1, 2020 to May 20, 2020; 60 days Downes credit for the period on strict bail; 332 days straight time served for the period from bail breach to next release.

According to my math that is a total credit of 920 days as of the date I revoked his bail. Since then, he has served another 133 days. If I were to credit that time at 1.5:1 under Summers that would be approximately 200 days, bringing the total credits to 1140 days.

Three years is approximately 1095 days. Accordingly, I will simply allow a credit of three years less one day for the combined Summers, Duncan and Downes credits, leaving one day left to be served.

The same ancillary orders apply, except with respect to the non-contact order. That’s a lot of numbers so I’m going to just take a recess and let you go through those numbers and make sure I’ve added them all up and done the....

TRANSCRIPTIONIST NOTE: HER HONOUR REQUESTS COUNSEL TO GO OVER NUMBER AMOUNTS. NOT TRANSCRIBED.

MR. WEINSTEIN: So, again, bearing in mind this is my – so what I have Your Honour my notes are that Your Honour provided 68 days for Summers slash Duncan credit for Jayson on the – relating to the first 45 days in custody. Then Your Honour has provided credit, 100 days credit for Downes credit.

THE COURT: Was it 100?

MR. WEINSTEIN: That’s what I had Your Honour.

THE COURT: Okay.

MR. WEINSTEIN: I’m in Your Honour’s hands, is that right?

MS. GOLDENBERG: That’s what I have noted.

MR. WEINSTEIN: That’s what Ms. Goldenberg has as well.

THE COURT: All right.

MR. WEINSTEIN: And then 85 days just straight time served in relation to the time period between the breaches, and then 200 days Summer’s credit for the time spent in custody since Your Honour revoked the bail, plus another 60 days of...

THE COURT: Duncan.

MR. WEINSTEIN: Duncan, so that, according to my math is 513 total days, or 512, according to – but Your Honour has indicated the remaining time served is four years ten months, again if we – and I’m now breaking this down. If I were to do an average calculation of 30 days per month.

THE COURT: I didn’t do it that way.

MR. WEINSTEIN: Okay.

THE COURT: I used the day calculator, because there are more than 365 days in some years and months are different. There’s, you know.

MR. WEINSTEIN: Right.

THE COURT: So what I did was I used

R E C E S S

U P O N R E S U M I N G

So the period of time from February 8th, 2024, which is today to February 8th, 2030, which is six years from today is 2193 days. After allowing 513 day credit, that brings us to 1680 days remaining to serve. So I don’t know where I got four years and ten months from, but that is four years, seven months and five days.

So I’m just prepared to call that four years and seven months left to serve. Any other issues?

MS. GOLDENBERG: The only one small – Your Honour indicated part of your judgment that – when Your Honour was talking about how they had fake identifications and the officer’s only found out, Your Honour indicated it was Janson who disclosed that, it was Jayson.

THE COURT: Oh was it?

MS. GOLDENBERG: Yes.

THE COURT: Okay, I’ll make that correction. Just note on the record where I say that to change that. You agree that was Jayson, okay. That doesn’t affect anything?

MS. GOLDENBERG: No no it doesn’t.

FORM 3

ELECTRONIC CERTIFICATE OF TRANSCRIPT SUBSECTION 5(2) Evidence Act

I, Shazeena Razak, certify that this document is a true and accurate transcript of the recording of R. v. Jayson and Janson Jeyakanthan, in the Superior Court of Justice, held at TORONTO, Ontario, on February 8, 2024, taken from Recording No. 4899_2-4_20240208_083145__10_MOLLOYA.dcr, which has been certified in Form 1.

March 26, 2024 Shazeena Razak

Date Shazeena Razak ACT#2930224861 Authorized Court Transcriptionist 416-834-7526 shazeenar@yahoo.ca Signed in the Province of Ontario.

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.