Court of Appeal for Ontario

Date: 2025-06-05
Docket: COA-25-CR-0185
Coram: S. Gomery, J. Dawe, L. Madsen

Between

His Majesty the King
Respondent

and

Kyle Watson
Appellant

Kyle Watson, acting in person
Maija Martin, appearing as duty counsel
Nicholas Hay, for the respondent

Heard: June 2, 2025

On appeal from the sentence imposed on January 22, 2025 by Justice Mikolaj B. Bazylko of the Ontario Court of Justice.

Reasons for Decision

Background and Conviction

[1] The appellant was convicted of robbery and failure to comply with a release order. He was sentenced to 12 months in jail, reduced by a pre-sentence credit of 129 days, leaving 236 days to serve; and 36 months of probation.

Grounds of Appeal

[2] The appellant seeks leave to appeal his sentence. At the appeal hearing, where he was ably assisted by duty counsel, he argued principally that the sentencing judge committed legal errors by (1) failing to give sufficient weight to the principle of restraint in s. 718.2(d) of the Criminal Code; and (2) failing to consider the harsh conditions of pre-sentence custody as a mitigating factor in determining the sentence.

[3] After hearing oral argument, we granted leave to the appellant to appeal his sentence but dismissed the appeal, for reasons to follow. These are our reasons.

Principle of Restraint and Indigenous Identity

[4] With respect to the first ground, the sentencing judge did not ignore the principle of restraint. He cited s. 718.2(e), which specifies that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders”. The appellant had formally waived his right to request a Gladue Report at sentencing. The sentencing judge nonetheless took into account the appellant’s Indigenous identity, the over-incarceration of Indigenous people in Canada, and issues that had impacted the appellant’s life, such as his difficult family circumstances, years spent in CAS care, and alcohol use. The sentencing judge recognized that these circumstances “obviously have to be factored into what ultimately is an appropriate sentence.”

[5] The appellant argued that the sentencing judge did not show restraint because he imposed a custodial sentence that was much longer than any custodial sentence the appellant had previously received. The sentence was within a reasonable range given the nature and circumstances of the offence. The victim was held back by another individual while the appellant violently beat him and robbed him in his own home. This left the victim with long lasting physical injuries and a feeling that he was no longer safe.

Pre-Sentence Custody Conditions

[6] With respect to the second ground, the sentencing judge did not fail to consider the conditions of the appellant’s pre-sentence custody. In her submissions on sentence, the appellant’s trial counsel noted that the appellant had been recovering from a serious accident while in remand and that he spent 78 days in segregation. After setting out the mitigating factors related to the appellant’s Indigenous identity already mentioned above, the sentencing judge recognized that these circumstances were relevant to a fit sentence:

In addition, obviously, jail is not exactly equal for all offenders. Some are more hard done by because of their particular circumstances, and certainly because of the injury that Mr. Watson has sustained, it is been more and more difficult for him to be able to: 1) get any programming; 2) for him to get out of segregation so that he gets to spend time with other people and is not just by himself, and again, ultimately that will factor into the sentence that I have come to.

[7] In determining an appropriate sentence, the sentencing judge took all mitigating factors into account. He explicitly stated that he would have sentenced the appellant to 15 to 18 months in custody rather than 12 months, were it not for the appellant’s Indigenous identity and personal history, and “those other factors” he had canvassed. On our reading of his reasons, those “other factors” can only refer to the conditions of the appellant’s pre-sentence custody, given that the sentencing judge had stated he would take this into consideration. The sentencing judge did not explain the precise impact of each mitigating factor, nor was he required to.

Sentencing Objectives and Credit for Pre-Sentence Custody

[8] The sentencing judge did not err in finding that the primary objectives of the sentence were denunciation and deterrence, as opposed to rehabilitation. The caselaw submitted by the appellant does not support his argument that the 12-month sentence was excessive, given the mitigating and aggravating factors identified by the sentencing judge.

[9] Finally, we note that the appellant’s trial counsel sought a 1.5 credit for each day that the appellant spent in pre-sentence custody, and that the sentencing judge granted this credit.

Conclusion

[10] We accordingly found no error in the sentencing judge’s reasons that would justify intervening in the sentence imposed.

“S. Gomery J.A.”
“J. Dawe J.A.”
“L. Madsen J.A.”