COURT FILE NOS.: CR-22-40000134-0000 CR-22-40000557-0000 DATE: 20240205

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - Joshua Auld

Tara Brun, for the Crown Hilary Dudding, for Mr. Auld

HEARD: October 12, and November 23, 2022

M. Forestell J.

REASONS FOR SENTENCE

Overview and Positions of the Parties

[1] Joshua Auld entered guilty pleas, on October 12, 2022, to two counts of robbery and one count of assault causing bodily harm. The sentencing was adjourned for the preparation of an enhanced pre-sentence report. Sentencing submissions were made on November 23, 2023, and sentencing was adjourned until today.

[2] The Crown seeks a global sentence of 10 years’ imprisonment before a reduction of 138 days for the 1,376 days spent on bail [1] and before credit for presentence custody. [2] The position of the Crown is that while Mr. Auld was subject to harsh conditions of presentence custody, there should be no further reduction of sentence because that mitigation is already reflected in the 10-year global sentence.

[3] Mr. Auld submits that a five-year global sentence before credit for actual days of presentence custody would have been appropriate, but that sentence should be reduced by 30 days to reflect the harsh conditions of presentence custody and by a further 826 days for the 1,376 days spent on bail. [3]

Circumstances of the Offences

[4] The circumstances of the offences are set out in the Agreed Statement of Facts and in the videos filed on sentencing.

[5] Mr. Auld entered a TD Bank in the afternoon on April 4, 2020 wearing a mask, sunglasses and a toque. He approached an employee, threatened the employee with a black handgun and demanded money. Two employees put money and a dye pack into the bag provided by Mr. Auld. As he left the bank, the dye packs activated.

[6] The day after the bank robbery, Mr. Auld approached a man in the parking lot of Dufferin Mall. He used a ruse to cause the man to exit the car. Mr. Auld then entered the vehicle and tried to drive away. The owner of the car grabbed the steering wheel of the car through the open door. A knife was produced. Mr. Auld’s position is that the owner produced the knife. Mr. Auld began to drive through the parking lot and the owner was dragged through the parking lot. Mr. Auld took the knife and stabbed the owner six or seven times. The car crashed into a fence and the owner of the car hit his head on the door frame of the car. The owner of the car had a laceration to his head from the impact and he had five penetrating stab wounds to his chest and one to his arm. A CT scan showed a laceration to his right lung.

[7] Mr. Auld admitted that the force he used against the owner of the car was not reasonable in all of the circumstances.

[8] No Victim Impact Statements were filed on sentencing. I accept, however, that the employees of the bank who were threatened with a gun would have been impacted by this robbery. I also accept that the victim of the robbery of the car and the stabbing would also have been impacted by the offences.

Circumstances of Mr. Auld

[9] Mr. Auld is a 32-year-old Black man of Jamaican descent.

[10] I have the benefit of a comprehensive Race and Cultural Impact Assessment Report prepared by Jacqui Pemberton, a social worker with extensive experience providing case management and clinical decision-making with racialized children and families as well as experience supporting clients experiencing trauma.

[11] The report sets out Mr. Auld’s family history and its impact on him. Mr. Auld’s mother and father used crack cocaine before and after the birth of Mr. Auld. Mr. Auld was placed into foster care when he was four months old but then returned to the care of his mother at seven months of age. By age four, he was primarily raised by his father and lived with his father and sister and paternal grandparents until he was about 10 years old. His father used physical discipline regularly. When Mr. Auld was 10 years old, his father placed him in foster care for a few months. He was returned to his father’s care but then was again put into foster care at age 11 by his father because of what his father described as aggressive behaviour and because he frequently ran away.

[12] Between 2002 and 2009 Mr. Auld had 13 placement changes. These included various group homes, treatment homes and foster homes. At age 18 he ‘aged-out’ of the child welfare system. He left that system with little, if anything, in the way of support or preparation for independent living.

[13] Mr. Auld attended three different schools between Junior Kindergarten and Grade 4 and he attended 10 schools from Grade 5 to Grade 11.

[14] There were 10 separate psychological assessments of Mr. Auld during the time that he was in foster care and school. His diagnoses were Developmental Disability, Mild Intellectual Disability and Attention Deficit Hyperactivity Disorder.

[15] Records from Mr. Auld’s placements document concerns about his mental health, including depression and anxiety. Mr. Auld continues to struggle with depression and anxiety.

[16] Mr. Auld became addicted to opiates in his mid-twenties. He used Percocets for about three years from 2016 to 2019. In 2019, he entered a drug treatment program. In early 2020 he relapsed. The offences in this case occurred during that period of relapse. Mr. Auld returned to the treatment program and has been involved in a relapse prevention program. A letter from Dr. Esbin indicates that Mr. Auld has been under his care since May of 2020 and that Mr. Auld has continued treatment and has not consumed opiates.

[17] Mr. Auld had a limited history of employment before the offences. Since these offences, he has obtained work assisting in building movie sets in 2021 and he has maintained this employment.

[18] Mr. Auld has three children aged 9, 6 and 2 years. He sees his daughters consistently and is reported to be a good parent. He is understandably concerned about the impact on his children of his extended absence once sentenced.

[19] Mr. Auld has youth entries on his record for theft, robbery, assault and obstructing a police officer. His adult record begins in 2011and contains entries for theft, possession of property obtained by crime, failing to comply, and uttering forged documents.

[20] Ms. Pemberton, in the Race and Cultural Impact Assessment report, analyzes the factors that contributed to Mr. Auld’s criminal conduct and states at page 13:

The OACAS (2016) noted that Ontario data reveals a high correlation between children and youth in foster care and poor life outcomes, such as low high school graduation rates, high rates of homelessness and diagnosed special needs (p. 37). Joshua enjoyed school but also found it difficult to participate effectively due to his hyperactivity, challenges with focusing and the number of moves he made throughout his history in foster care. Joshua has an incomplete education which might be a factor to some of the further disadvantages he has faced as he progressed in life.

Poverty is an overarching issue that Joshua experienced with his exit from foster care. He received a stipend from the Society in addition to disability supports that did not serve his needs or assist him with finding affordable housing in Toronto. Joshua lived a transient lifestyle and generally situated himself in low-income neighbourhoods where the reality of poverty for Black and racialized people was widespread. With a limited work history, Joshua began to experience financial challenges, transience and homelessness. His observation of his surroundings and his direct experience with hardship relates to the research confirming the disproportionate rates in which Black and racialized people experience unemployment and poverty (City of Toronto, 2019, p. 6; Turner, Boyce, & Butler, 2020, p. 24).

Joshua has experienced a range of issues in his life resulting from his parent’s choices, family stressors, lack of emotional support and stability. His entrance into the foster care system as a child was a distressing experience and a complicating factor that has reinforced his sense of abandonment and loss of family connection and support. While understanding Joshua’s personal history, he tried his best to rise above the challenging aspects of his life, but has been unable to maintain this stability.

Legal Principles and Analysis

[21] In considering the appropriate sentence to be imposed I have considered the general purposes, principles and objectives of sentencing, as set out in the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”). The fundamental principle of sentencing set out in s. 718.1 of the Code requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[22] Section 718 of the Code identifies the objectives of sentencing, including denunciation, specific and general deterrence, separation of the offender from society and the rehabilitation of the offender.

[23] I have also considered s. 718.2 of the Code which requires that I take into account other principles, including that a sentence be increased or decreased depending upon the presence of any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[24] There are aggravating factors with respect to both the bank robbery and the robbery and assault involving the car. With respect to the bank robbery, aggravating factors are that Mr. Auld had a handgun; there was a degree of planning involved in the offence; he threatened the bank employees; and, he was masked. With respect to the robbery and stabbing over the car, aggravating factors are that there was a degree of planning; the offence put the victim and others in physical danger; and the offence caused physical injuries to the victim. An aggravating factor relating to Mr. Auld’s circumstances is that Mr. Auld has a criminal record.

[25] Mitigating factors are Mr. Auld’s guilty plea which shows real remorse and an acceptance of responsibility; his history of mental health issues and substance abuse and the steps that he has taken to address those issues; his extremely challenging personal history; and his current stability and family support.

[26] It is also somewhat mitigating that it was not Mr. Auld who initially produced the knife.

[27] Further mitigating factors are Mr. Auld’s time on strict bail and the harsh conditions of his presentence custody.

[28] Mr. Auld was in custody for 55 days during the worst of the pandemic. He endured the well documented deterioration of conditions in the detention centre. The conditions merit a modest reduction in the sentence.

[29] Mr. Auld was on bail for a very lengthy period of time and was subject to extremely strict conditions for much of that time. He was on house arrest and unable to work for 7 months. When he was allowed to work after 7 months, he had to be driven to and from work by his sureties. The bail was not changed to an 8 pm curfew for more than two years [4]. I find, based on the record before me, that the conditions were stringent and impacted on Mr. Auld’s ability to carry on normal relationships and find and maintain employment. The conditions, at least for the first approximately two years were punitive. I find that the bail conditions are a substantial mitigating factor, justifying a reduction in sentence.

[30] Although both parties argued the impact of harsh conditions or presentence custody and restrictive bail in terms of a mathematical formula for credit, I prefer to address these circumstances as mitigating circumstances in accordance with R. v. Marshall, 2021 ONCA 344 and R. v. Joseph, 2020 ONCA 733. In the interest of transparency I will, however, quantify the reduction. I find that the otherwise appropriate sentence should be reduced by nine months to reflect both the conditions of presentence custody and the onerous bail conditions.

[31] In determining the appropriate sentence, I have considered the principle of restraint. This will be Mr. Auld’s first significant sentence of incarceration. While the sentence must advance the objectives of denunciation and deterrence, it should be as low as possible so as not to crush Mr. Auld’s prospects of rehabilitation. In this case, this principle is particularly important. Mr. Auld has overcome extreme hardships including poverty, mental health challenges and addiction. This progress has occurred in the community and with the assistance of a network of support. The sentence that I impose will inevitably interrupt that progress, but it should not be so long that the progress and supports are destroyed.

[32] In determining a fit and appropriate sentence for each of the offences in this case, I have considered the sentences imposed in similar cases.

[33] As the Court of Appeal observed in R. v. Nembhard, 2010 ONCA 420, bank robberies are serious offences and call for a substantial penitentiary term. In Nembhard, the Court of Appeal reduced the nine-year sentence imposed by the trial judge to seven years for a robbery and attempted robbery using imitation firearms. The offender had a related record, including three robberies, but there was a significant gap in the record.

[34] In R. v. Abdi, 2011 ONSC 4165, a decision of B. O’Marra J., the offender was sentenced to a global sentence of 7 1/2 years for four bank robberies and the use of an imitation firearm in three of those robberies. The sentence was upheld on appeal. Justice O’Marra imposed a sentence of four years on each of the four bank robberies to be served concurrently. Mr. Abdi received two consecutive one-year sentences for two of the convictions for use of an imitation firearm, and one further 18-month sentence for the third count of use of an imitation firearm. The offender in that case had a lengthy and continuous criminal record that included a prior robbery with use of an imitation firearm and possession of a prohibited or restricted firearm. He was found guilty after trial. Justice O’Marra observed that there were few if any mitigating factors in that case and there was little prospect of rehabilitation. The sentence was upheld on appeal.

[35] The minimum sentence for robbery with a firearm is five years’ imprisonment. Although Mr. Auld has not pleaded guilty to robbery with a firearm, it is part of the admitted facts that he used a firearm during the bank robbery.

[36] In R. v. Breese, 2021 ONSC 1611, Dunphy J. imposed a global sentence of five years and nine months for a bank robbery with a firearm in which the offender discharged the gun. The offender in that case was a first offender with a troubled personal history and ongoing mental health issues. That offender was convicted after trial.

[37] I have also considered the cases involving the robbery of a vehicle.

[38] In R. v. Noor, 2007 ONSC 6000, Clarke J. imposed a three- and half-year sentence on a first offender who, with an accomplice, entered a vehicle at a red light, threatened to shoot the driver if he did not relinquish his car, and pulled the victim from the car. The victim was not physically harmed.

[39] In R. v. McIntyre, 2016 ONSC 7498 aff’d 2019 ONCA 161, the offender took the car of the victim after pointing a gun at the victim and then striking him on the head with it. Ahktar J. sentenced the offender to a global sentence of six years with a sentence of six years for the robbery and the sentences on the other counts all to be served concurrently. Mr. McIntyre was a very young first offender who entered a guilty plea.

[40] I find that the circumstances of the bank robbery, considered with Mr. Auld’s personal circumstances, and particularly his substance abuse issues, situate the appropriate sentence for that robbery at the low end of the range. I recognize that the use of a firearm is an extremely aggravating factor, although the mandatory minimum does not apply. The appropriate sentence for this offence would be four years before consideration of harsh conditions of custody and restrictive bail and before considering totality.

[41] With respect to the robbery of the car, considering all of the circumstances and the range of sentence for this type of robbery, I conclude that the appropriate sentence before considering harsh conditions of custody and strict bail and before considering totality would be three years for the robbery and one year concurrent for the assault causing bodily harm.

[42] As the Supreme Court of Canada has recently affirmed in the case of R. v. Marchand, 2023 SCC 26, the approach to the application of the principle of totality is that after making the sequential determination of fit sentences for each offence, I must then decide whether the sentences should run consecutively or concurrently.

[43] The charge involving the robbery of the car and assault causing bodily harm arose from the same transaction and should attract sentences that are concurrent to each other. The car robbery was separate from the bank robbery and the sentence for the car robbery should be consecutive to the sentence for the bank robbery.

[44] The sequential determination yields an aggregate sentence would be seven years. As I indicated above, I would reduce the otherwise appropriate sentence by nine months to reflect the mitigation due to harsh conditions of custody and the strict bail, bringing the aggregate sentence to six years and three months.

[45] Following the determination as to whether the sentences are consecutive or concurrent, in accordance with Marchand, I must look at the aggregate sentence and decide if it is “unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender”. If the aggregate sentence is unduly long or harsh, it can be adjusted by reducing the length of one or more sentences or making the sentences concurrent.

[46] It is at this point of the assessment of whether the sentence is unduly long or harsh that I have considered the impact of anti-Black racism on Mr. Auld. In the case of R. v. Morris, 2021 ONCA 680, the Court of Appeal recognized that offenders affected by anti-Black racism may have reduced moral culpability or a greater potential for rehabilitation, warranting a reduction in their sentence.

[47] There is clear and compelling evidence before me of the impact of systemic anti-Black racism on Mr. Auld and his path in life. Mr. Auld was born to parents who both struggled with addiction; he spent a long and traumatic time in the child welfare system; he was not provided with consistent support in the education system and moved schools 13 times; he was sent out of the child welfare system at 18 years to live independently and support himself with little, if any, preparation or support. Mr. Auld, because of his background, lacked a network of family support. Mr. Auld fell into opiate addiction. Impressively, in spite of the lack of support, Mr. Auld sought out and successfully completed a treatment program. I recognize that he also relapsed after treatment, but I also recognize that relapse is not uncommon in those battling addiction. Mr. Auld has since been successful for a lengthy period of time in avoiding relapse.

[48] I find that Mr. Auld’s background and disadvantages that are grounded in anti-Black racism reduce his moral culpability and also show his potential for rehabilitation.

[49] Having considered the principle of totality and having weighed the significant factors impacting on Mr. Auld’s moral culpability and potential for rehabilitation, I have concluded that a sentence of six years and three months would be unduly long and harsh for this offender in these unique circumstances.

[50] I find that an aggregate sentence of five years before credit for actual time in presentence custody is the appropriate sentence. An aggregate sentence that is unduly long and harsh can be adjusted by reducing the length of one or more of the setnences or by making the sentences concurrent.. In this case I find it more appropriate to reduce the length of the sentences for both robbery counts.

Conclusion

[51] I therefore impose a sentence of three years for the bank robbery, two years consecutive for the robbery of the car and one year concurrent for the assault causing bodily harm.

[52] Three years is 1,096 days. Mr. Auld is entitled to credit for 55 actual days of presentence custody at 1.5:1 or 83 days. Therefore, on the sentence for Count 1, the bank robbery, of 1,096 days, 83 days will be credited leaving 1,013 days to serve. On Count 2, the car robbery, he will serve a further two years (or 732 days) consecutive; and on Count 3, the assault causing bodily harm, 12 months concurrent. This leaves 1,745 days (or about four years and nine and one-half months) to serve.

[53] In addition, there will be a s. 109 order for life. Robbery is a primary designated offence, and a DNA order is mandatory. I therefore also order that Mr. Auld provide a DNA sample.

M. Forestell J.

Released: February 5, 2024

Appendix “A”

| DATE OF ORDER | CONDITIONS