Court File and Parties

Court File No.: CR-21-50000109 Date: 20240119 Ontario Superior Court of Justice

Between: His Majesty The King – and – Alexander Clarke

Counsel: P. Zambonini, for the Crown A. Mamo, for Mr. Clarke

Heard: December 13-14, 2023

Reasons for Sentence [1]

SCHRECK J.:

[1] On September 20, 2019, two masked men armed with a handgun robbed the office of an employment agency in Toronto. Although nobody was physically injured, some of the employees had a gun pointed directly at them in a threatening manner. The entire robbery was captured on security video. The robbers took approximately $15,000 to $20,000 in cash and then left.

[2] One of the robbers dropped a plastic bag. A fingerprint on it belonged to Alexander Clarke and further investigation by the police led them to conclude that he was one of the robbers. He was accordingly arrested and charged with a number of offences and ultimately pleaded guilty on September 23, 2022 to robbery with a firearm (Count 1), unlawful confinement (Count 5) and having his face masked with intent to commit an indictable offence (Count 9). [2]

[3] This was not Mr. Clarke’s first robbery. It was his eighth. In fact, at the time he committed this robbery, he was on parole on an eight-year sentence for robberies he had been convicted of in 2014.

[4] The Crown has brought an application pursuant to s. 753.1(1) of the Criminal Code to have Mr. Clarke declared a long-term offender. The Crown submits that Mr. Clarke should be sentenced to imprisonment for 10 years followed by a long-term supervision order (“LTSO”) of equal length. Counsel for Mr. Clarke does not dispute that he should be found to be a long-term offender. However, she submits that the appropriate sentence is one of six and a half to eight years and that the LTSO should be for three to five years. All parties agree that Mr. Clarke should be given credit for presentence custody.

I. Evidence

A. The Offence

[5] On the morning of September 20, 2019, an employee of an employment agency in Toronto was in the hallway outside of her office when she was approached by two masked men. One of them held a gun to her head, grabbed her and forced her to open the door to the office.

[6] There were several employees in the office. The masked men directed them at gunpoint to stand in the middle of the office. One of the men ripped all of the telephone cords out of the wall. The man with the gun took one of the employees to a back room where cash was kept and had her give him the $15,000 to $20,000 that was there. The masked men then left.

[7] The entire robbery was captured on security video. On the video, the robber with the gun is seen dropping a plastic bag with distinctive markings on it. The police obtained security video from Mr. Clarke’s address which showed him leaving his apartment on the morning of the robbery holding a plastic bag with the same distinctive markings and wearing shoes similar to those seen on the robber. Mr. Clarke was later arrested and a search of his apartment resulted in the seizure of other evidence linking him to the robbery as well as $7,000 in cash.

[8] One of the employees provided a victim impact statement describing the emotional trauma that resulted from the robbery. He described having ongoing issues with fear, anxiety, hypervigilance and nightmares. He stated that the robbery “has shattered my sense of safety, instilled a constant state of fear, and left me grappling with the lingering effects of trauma.” Although the other employees did not file victim impact statements, I have no doubt that most, if not all of them, suffered similar effects.

B. The Offender

(i) Background

[9] Mr. Clarke is 38 years old. He grew up in Toronto with his mother and two older brothers. His parents’ relationship was tumultuous and the father’s presence in Mr. Clarke’s life was sporadic. When his parents were together, Mr. Clarke’s father was abusive towards his spouse and his children. He would sometimes beat Mr. Clarke with a belt, at times for no apparent reason. On some occasions, the family moved to a different location so that his mother could get away from his father.

[10] Mr. Clarke did poorly in school, but there were no diagnosed learning disabilities. He never completed high school. He has a sporadic employment history, but has worked in construction, a grocery store and in telemarketing. Mr. Clarke had some contact with police as a youth and was charged with assault at least once. However, he never spent time in a youth detention facility.

[11] Mr. Clarke began consuming alcohol at the age of 15 or 16 and began using cannabis on a daily basis at around the same age. He later began using hallucinogenic mushrooms on a regular basis. At some point, he had amassed drug debts of $3000 to $4000.

(ii) Criminal Record

[12] Mr. Clarke’s first conviction was in 2007 for robbery for which he received a suspended sentence and probation in addition to eight months of presentence custody.

[13] In 2009, he was convicted of two counts of robbery and received a prison sentence of two years less a day and probation. He had been the driver in a plan with two other people to rob two cheque-cashing stores.

[14] While still on probation, Mr. Clarke committed a number of robberies in February and March 2011. He robbed banks by approaching tellers and giving them a note demanding cash. He and an accomplice robbed a cheque-cashing business by threatening the employees with a knife. He and two accomplices robbed a drug store by brandishing a firearm and threatening the employees. Mr. Clarke pleaded guilty to these on October 10, 2014 before Nordheimer J. (as he then was) and received a total effective sentence of eight years. At the time of his plea, Mr. Clarke told Nordheimer J. that he was “definitely going to take this time to rehabilitate myself and utilize whatever resources, whatever I can out there to better myself.”

(iii) Psychiatric Assessment

[15] Mr. Clarke was assessed by a forensic psychiatrist, Dr. Joel Watts, who produced a detailed 29-page report. Dr. Watts diagnosed Mr. Clarke as having antisocial personality traits, but concluded that he did not meet the criteria for a diagnosis of antisocial personality disorder because he was not diagnosed as having a conduct disorder prior to the age of 15. Dr. Watts also diagnosed Mr. Clarke with alcohol and cannabis disorder, but believed this to be in remission while Mr. Clarke was in custody.

[16] Dr. Watts subjected Mr. Clarke to various violence risk assessment actuarial instruments. Mr. Clarke scored 14 out of 40 on the Hare Psychopathy Checklist – Revised (“PCL-R”), which placed him in the 18th percentile of North American offenders. According to Dr. Watts, a person is usually considered to be a psychopath with a score of 30 or more.

[17] On the Violence Risk Appraisal Guide – Revised (“VRAG”), Mr. Clarke’s score was 15, which put him in the 75th percentile. This score was the same as that of a group of violent offenders whose risk of violent recidivism was 45% after five years and 69% after 12 years.

[18] Dr. Watts also used the Historical Clinical Risk Management Guidelines (“HCR-20”), a “clinical judgment tool” used to assess future risk, and concluded that Mr. Clark “presents a high risk of future violence, specifically including behaviours that he has already exhibited such as armed robberies.”

[19] It was Dr. Watts’s opinion that Mr. Clarke met the definition of a dangerous offender as outlined in s. 753(1)(a)(i) and (ii) of the Criminal Code. However, he was also of the view that there was a “reasonable possibility of eventual control of Mr. Clarke in the community.”

II. Analysis

A. Long-Term Offender Designation

[20] The parties agree that although Mr. Clarke meets the definition of a dangerous offender, Dr. Watts’s opinion that there is a reasonable possibility of eventual control in the community should be accepted and he should therefore be found to be a long-term offender pursuant to s. 753.1(1) of the Criminal Code: R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at paras. 31-36. As a result, in addition to the sentence Mr. Clarke receives, he should be subject to an LTSO pursuant to s. 753.1(3)(b).

B. The Relationship Between the Sentence and the LTSO

[21] This court must determine both the appropriate sentence for the offences Mr. Clarke has been convicted of as well as the appropriate length of the LTSO. The former is concerned with punishment and requires the court to apply established sentencing principles as well as s. 718 of the Criminal Code in order to arrive at a sentence that is proportionate to the gravity of the offence and the responsibility of the offender: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37; R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 30. The latter is not intended to punish the offender but, rather, to protect the public and reintegrate the offender into the community: R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 42, 46.

[22] The differences between the two determinations and how they are related was explained in L.M., at para. 49:

… [I]t is important to remain faithful to the distinction between sentencing and the imposition of a supervision period. A judge who confuses these two processes risks straying from the normative principles and the objectives of sentencing. A judge who does so would also neglect the specific objective of the procedure for finding an offender to be a long-term offender, which requires the application of different principles. Parliament intended that the judge determine the appropriate sentence first. After doing so, the judge is to ask, in light of Parliament’s objective of protecting the public, whether a period of supervision is warranted. The period of community supervision cannot therefore be equated with a new period of deprivation of liberty consecutive to the one resulting from the sentence.

The Court concluded at para. 50 that “a long-term offender’s period of community supervision cannot be taken into account when determining the acceptable length of the offender’s incarceration.” However, as I will discuss later in these reasons, the converse is not necessarily true.

C. The Appropriate Sentence

(i) Aggravating and Mitigating Factors

[23] Mr. Clarke committed a very serious offence that posed a grave risk to the physical and psychological wellbeing of the victims. This was clearly not an impulsive act. Mr. Clarke obviously chose the location of his robbery because he had somehow discovered that cash was kept on the premises. He worked together with an accomplice to carry out what was clearly a planned robbery. His degree of responsibility is significant.

[24] There are several aggravating factors in this case: the robbery was planned, a firearm was used, and the victims suffered significant psychological harm. Perhaps the most aggravating factor is the fact that Mr. Clarke has been convicted of similar offences in the past, not only once or twice but several times. He was on parole in relation to convictions for similar offences when he committed this one.

[25] There are mitigating factors as well. Mr. Clarke pleaded guilty and accepted responsibility for his actions. He appears to have taken steps to rehabilitate himself while in custody awaiting sentencing and has taken several programs and obtained a number of certificates. Mr. Clarke addressed the court at his sentencing hearing at some length, apologized to his victims and expressed remorse for what he had done. Given that he made similar comments to Nordheimer J. in 2014 and then went on to commit further robberies, I have approached these assertions of remorse with considerable caution. However, I am willing to give Mr. Clarke the benefit of the doubt and accept that he is genuinely remorseful.

(ii) The Range

[26] The Crown submits that the appropriate sentence in this case is one of 10 years while defence counsel submits that six and a half to eight years is appropriate. Both counsel agree that Mr. Clark is entitled to credit for presentence custody, which I will address later.

[27] Robbery with a firearm is an exceptionally serious crime which usually results in a significant penitentiary sentence in the high single digits: R. v. Sithravel, 2023 ONCA 748; R. v. Treleaven, 2019 ONCA 593, varying 2018 ONSC 1707; R. v. Kreko, 2016 ONCA 367, 131 O.R. (3d) 694; R. v. Hayes, 2016 ONCA 47; R. v. Wolynec, 2015 ONCA 656, 330 C.C.C. (3d) 541; R. v. Taylor (2006), 214 O.A.C. 27 (C.A.); R. v. Asif, 2020 ONSC 1403; R. v. Pink, 2020 ONSC 814; R. v. Charley, 2019 ONSC 6490; R. v. Taylor, [2017] O.J. No. 139 (S.C.J.); R. v. S.A., 2011 ONSC 4165.

(iii) The “Step Principle”

[28] Consideration of the appropriate sentence in this case must begin with the sentence Mr. Clarke received the last time he was convicted of robbery, which was eight years. The “step principle” provides that “a subsequent sentence for the same type of offence should generally be higher than the previous sentence”: R. v. U.A., 2019 ONCA 946, at para. 12.

[29] Defence counsel correctly points out that the eight-year sentence imposed by Nordheimer J. was for several robberies, unlike in this case. I accept that Mr. Clarke would likely have received a lower sentence for one robbery and that this is a relevant consideration in applying the “step principle.” At the same time, this is a case where the objective of specific deterrence is of particular importance. The reality is that regardless of how many robberies justified the eight-year sentence, that sentence was not sufficient to deter Mr. Clarke from repeating the same conduct. As a result, I conclude that something more is required this time. At the same time, any sentence I impose must respect the principle of proportionality.

(iv) The Appropriate Sentence

[30] Having considered the aggravating and mitigating factors and the relevant sentencing principles, I have concluded that the sentence must be higher than that imposed by Nordheimer J. In all the circumstances, a total sentence of nine years (108 months) is appropriate. How that total is broken down as between the various counts will be discussed later in these reasons.

(v) Credit for Presentence Custody

[31] The warrant of committal for the sentence imposed by Nordheimer J. expired on December 3, 2020. Counsel agree that Mr. Clarke is entitled to the usual credit for presentence custody since that date in accordance with R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. By my calculation, this is approximately 37.5 months multiplied by 1.5, for a credit of 56.25 months. This leaves 51.75 months, or four years, three months and three weeks, left to be served.

D. Length of the LTSO

(i) Relevant Considerations

[32] Section 753.1(3)(b) provides that where an offender is found to be a long-term offender, the court must order that he or she be subject to an LTSO. The section does not specify any minimum length, but provides that the LTSO cannot be longer than 10 years. The Code is silent as to the factors to be considered in determining the length of the LTSO, but the Supreme Court of Canada in L.M. stated, at para. 47, that it is to be determined “based on an offender’s criminal past and on the likelihood that he or she will reoffend, which are addressed in the assessment report.” The Court pointed out, however, at para. 44 that the LTSO “cannot be any longer than is necessary to obviate the risk that the offender will reoffend and thus to protect the public.”

[33] As noted earlier, it is inappropriate to take a long-term offender’s period of community supervision into account when determining the acceptable length of his prison sentence. However, the length of the LTSO will depend on how long supervision is necessary to protect the public and reintegrate the offender into the community: L.M., at para. 48. That supervision will of course be present while the offender is serving his sentence and after he is released on parole, so the issue in determining the length of the LTSO is how much additional supervision is necessary to protect the public after the sentence has been served.

(ii) Dr. Watts’s Opinion

[34] In his report, Dr. Watts noted that many offenders with antisocial traits like Mr. Clarke show a reduction in aggressiveness and antisocial behaviour as they age, although this is not true of every offender and it is difficult to predict a specific age at which this occurs. Based on this, Dr. Watts recommended an LTSO of 10 years in length, given that Mr. Clarke is nearing the age of 40. In his testimony, Dr. Watts explained that in arriving at this figure, he assumed that Mr. Clarke would be serving a sentence of “several years,” but did not have a specific length in mind.

(iii) The Appropriate Length of the LTSO

[35] As noted earlier, the total length of supervision including both the sentence and the LTSO must be considered in order to determine what length of LTSO is necessary to protect the public. Mr. Clarke is now 38 years and four months old. By the time he serves the sentence being imposed today, he will be about 42 years and eight months old. An eight-year LTSO will ensure that he is under supervision until he is past the age of 50. In my view, that is sufficient to ensure that the public is protected.

E. Further Observations

[36] I will end these reasons by making two observations. The first is that despite Mr. Clarke’s lengthy criminal record and the drastic failure of his rehabilitation after being released on parole, I am of the view that there is still hope for him. Mr. Clarke addressed the court at the end of the sentencing hearing. While many accused persons do this, Mr. Clarke spoke for a considerable length of time. He expressed remorse for his victims. He described his background and explained why he came to make poor choices throughout his life. He explained that while growing up as a young Black male in a socioeconomically depressed area, he believed that his future prospects were restricted to three options: professional sports, rap music or crime. As he was not particularly good at the first two, he chose the latter. As he put it, he and others like him were “limited in our resources, but also our beliefs.” He seems to have some insight into what led him to be where he is. Since being in custody on these charges, Mr. Clarke has discovered that he has a skill for creative writing and has written some books and poems, one of which he read out at his sentencing hearing. It is clear that he has within him the capacity to lead a meaningful life without causing harm to those around him. Whether he does so is, of course, up to him.

[37] The second observation, which I know Mr. Clarke is already aware of, is this. Mr. Clarke has reached the end of the road within the criminal justice system. He has run out of chances. He will receive no more breaks. If he commits another offence, he will almost certainly forfeit his liberty on a permanent basis. In other words, unless he truly changes his behaviour, he will in all likelihood spend the rest of his days in prison.

[38] Mr. Clarke, there are only two paths on the road ahead of you. I hope you choose the right one.

III. Disposition

A. Sentences

[39] For the foregoing reasons, the sentences imposed are as follows:

Count 1 (robbery with a firearm): 9 years Count 5 (unlawful confinement): 4 years, to be served concurrently Count 9 (mask with intent): 2 years, to be served concurrently.

Mr. Clark is entitled to credit of 56.25 months for 37.5 months of presentence custody. The sentence to be served is 51.75 months.

B. LTSO

[40] Pursuant to s. 753.1(1), Mr. Clarke is found to be a long-term offender. Pursuant to s. 753.1(3)(b), there will be an order that he be subject to long-term supervision by Correctional Services Canada (“CSC”) for a period of eight years beginning on the date on which his sentence expires.

C. Ancillary Orders

[41] Pursuant to s. 109(1) of the Criminal Code, Mr. Clarke is prohibited from possessing the items described in s. 109(3) for life.

[42] Pursuant to s. 487.051(2) of the Criminal Code, Mr. Clarke is ordered to provide a sample of his DNA for inclusion in the national databank.

[43] There will be an order pursuant to s. 760 of the Criminal Code that the following items be produced and forwarded to CSC: (1) a copy of these reasons; (2) a transcript of the sentencing proceedings heard on December 13 and 14, 2023; (3) copies of all exhibits filed on the sentencing hearing, including the report of Dr. Watts.

Justice P.A. Schreck Released: January 19, 2024

Footnotes:

[1] An abbreviated version of these reasons was delivered orally in court. In the event of any inconsistency between those oral reasons and these written reasons, the written reasons should be taken as correct.

[2] The second robber was never apprehended.