Court File and Parties

Court File No.: Toronto 12 – 344779 – 00

Ontario Court of Justice

Between:

Her Majesty the Queen

— And —

Christopher Musclow

Before: Justice Paul H. Reinhardt

Heard on: 12 October, 26 November, 6 December 2012, 8, 16 January, 22 March, 25 April, 7 & 19 June 2013

Reasons for Judgment released on: 16 August 2013

Counsel:

• Cara Sweeny for the Crown
• Adele Monaco for the accused

REINHARDT J.:

Introduction

[1] On 12 October 2012, Mr. Christopher Musclow, ("CM") pleaded guilty that in the City of Toronto, in the Toronto Region, contrary to the Criminal Code, he did:

(1) On 6 December 2011 rob Tina Aram; and further

(2) On 6 December 2011 use a firearm in the commission of an indictable offence; and further

(3) On 6 December 2011 rob Justin Colle; and further

(4) On 6 December 2011 use a firearm in the commission of an indictable offence; and further

(5) On 23 December 2011 rob Kevin Arcand; and further

(6) On 23 December 2011 use a firearm in the commission of an indictable offence; and further

(7) On 23 January 2012 rob Fabia Abou-Chahine; and further

(8) On 23 January 2012 use a firearm in the commission of an indictable offence; and further

(9) On 23 January 2012 rob Shahrzad Shomali; and further

(10) On 23 January 2012 use a firearm in the commission of an indictable offence; and further

(11) On 27 January 2012 rob Kevin Arcand; and further

(12) On 27 January 2012 use a firearm in the commission of an indictable offence.

The Offences

[2] The following facts were admitted for the purposes of the plea, in regard to four different dates, and six robberies; 6 & 23 December 2011 and 23 & 27 January 2012:

6 December 2011

CM entered the CIBC Bank at 205 Queen Street West through the front doors and approached the complainant, TA, who was standing at a wicket. CM said he would like to speak to the bank manager. The bank manager, David Jones came to the wicket. CM told Jones that he wanted $10,000. He removed a black handgun out of a plastic bag and placed it on the counter. TA observed that CM never removed his hand from the firearm and that he had his finger on the trigger. CM received a quantity of cash. CM went through the cash, removed the dye-pack and dismantled the electronic portion of it and placed it back on the counter. CM stated that the quantity was not $10,000. CM stated that if he was not given the requested amount he would take hostages. TA advised CM that he would have to wait for the time safe to open in order to get more money. CM then placed the money in his bag and exited the bank. His actions were caught on the surveillance camera. The total loss was Canadian $5,000 and there has been no recovery.

On the same date, but at approximately 3:06 p.m. CM entered the TD Canada Trust at 77 Bloor Street West through the front doors and approached the complainant, JC, who was standing at his wicket. CM approached him and stated: "This is a robbery." CM immediately reached into his jacket and removed a firearm. As quickly as he removed it he placed it back in his jacket and concealed it. CM then made a demand for $10,000. He also made mention of a hostage situation should the victim not gather the amount of money demanded. JC advised CM that he would not have access to that amount of money. CM told JC "keep swiping until you get $10,000 or there will be hostages." JC made two withdrawals of $1,000 each in $100 denominations, placed the money along with the dye pack in a clear plastic bag and handed the money to CM. CM lifted the bag up and JC replied that's all he could get. At that point CM turned around and walked out of the bank. The actions were caught on surveillance. The total loss on that occasion was $2,000 and there has been no recovery.

23 December 2011

CM entered the Royal Bank of Canada at 3224 Yonge Street through the front doors and approached the complainant, KA who was in an enclosed glass booth. CM told KA that he had a problem. KA turned and looked at CM who then reached down to his waist area and produced a black handgun. CM placed the handgun with the barrel pointed at the victim on the counter. CM made a demand for money and stated: "I want $20,000." CM stated that he wanted the cash in the bag. CM stated that a bundle of hundreds is $10,000. KA placed the money in a coin compartment door where CM was able to retrieve it. CM put away the handgun and took the cash. CM then pulled up his neck-warmer and covered his mouth as he left the bank and made good his escape. The bank's loss was approximately Canadian $20,000 and there has been no recovery.

23 January 2012

CM entered the Royal Bank at 1919 Lawrence Avenue East through the front doors and approached FAC and stated: "I am here to rob the bank." CM had a grey shopping bag and a deposit slip with him. FAC thought it was a joke and started to laugh. CM stated: "What the fuck are you laughing at? I need $20,000." CM then motioned and pulled his jacket to the side and FAC observed a silver and gold handgun tucked into his waistband. FAC advised CM that she did not have access to that kind of money. FAC gave him approximately $500 wrapped in a plastic bag and handed it to him. CM took the money and left through the bank's main doors. These actions were caught on the bank surveillance camera and the loss was Canadian $500 with no recovery.

On the same day, CM entered the TD Canada Trust Bank at 5400 Yonge Street through the front doors and walked up to the complainant, SS, at the customer service centre and said: "I am here. Give me $10,000 right now. I am not joking. I have a gun." CM opened his sweater, partially exposing a handgun tucked in the left waistband. As SS directed the accused to the other side of the counter to comply with the demand, another employee stopped and asked SS a question. CM then replied: "I told you to give me $10,000. This is not a joke and if you don't give it to me right now, I have a gun and someone is going to get hurt." SS placed $200 from the cash dispensing machine, along with $165 in decoy money in a bag for the accused. CM looked at the amount of money and stated: "This is a fucking joke. I said: Give me $10,000." SS then went back to the cash dispensing machine and withdrew another $200 and added the money to the original amount. CM then exited the bank and made good his escape and again all this was caught on the bank surveillance camera. The total loss was Canadian $565, no recovery.

27 January 2012

CM again entered the Royal Bank at 3224 Yonge Street, the same location as the previous incident on 23 December 2011. CM again approached the same teller, Mr. Kevin Arcand and produced a black-coloured handgun from his waist and began hitting the glass with it. CM made a demand for money and stated: "I want $20,000." CM further stated that he wanted the cash in a bag. He stated that a bundle of hundreds is $10,000. CM then stated: "Give me the fucking cash", and directed KA to place the money in a clear box located on the counter. KA placed the bundle of both U.S. and Canadian currency inside a box, totalling $6,000. CM then left the bank making good his escape. This was caught on bank surveillance. The bank's loss on that occasion was $6,000 in Canadian and U.S. currency and no recovery was made of that money.

[3] In total, the Crown estimates that between 6 December 2011 and 27 January 2012, Mr. Musclow committed six robberies and the bank losses were approximately $34,000, with no recovery.

[4] On the basis of the pleas and the admissions, I entered findings of guilt for six counts of robbery contrary to s. 343 (a) of the Criminal Code and six counts of "use of an imitation firearm while committing an indictable offence" contrary to s. 85(2) (a) of the Criminal Code.

[5] In addition to these admitted facts, the Crown filed Victim Impact Statements from the following: Fadia Abou-Chahine, Tina Aram, Kevin Arcand and Shahrzad "Sherri" Shomali.

[6] On 25 April 2013, the Crown also called Royal Bank of Canada teller Kevin Arcand as a witness on sentence.

[7] Crown Exhibits 5a – 5f are bank surveillance photos recording Christopher Musclow during the course of the robberies for the following dates and places:

(5a) 27 January 2012 – Royal Bank, 3224 Yonge Street, Toronto;

(5b) 23 January 2012 – Royal Bank, 1919 Lawrence Avenue West, Toronto;

(5c) 23 January 2012 – TD Canada Trust, 5400 Yonge Street, Toronto;

(5d) 23 December 2012 – Royal Bank, 3224 Yonge Street, Toronto;

(5e) 6 December 2011 – CIBC, 205 Queen Street West, Toronto;

(5f) 6 December 2011 – TD Canada Trust, 77 Bloor Street West, Toronto.

Kevin Arcand

[8] On 25 April 2013, Royal Bank of Canada Central Teller Kevin Arcand testified in this proceeding. He also prepared and filed a Victim Impact Statement, dated 12 October 2012.

[9] Kevin Arcand testified in some detail about the trauma he experienced on two separate occasions when Mr. Musclow robbed the Royal Bank at 3224 Yonge Street, 23 December 2011 & 27 January 2012. Mr. Arcand testified that the pointing and waiving of the imitation firearm, which Mr. Arcand did not know was an imitation, caused him great trauma for which he has begun counselling.

[10] Kevin Arcand testified that, since the two robberies, he has become more self-destructive, less physically active, and does not enjoy the sports he used to love.

[11] In addition, Mr. Arcand testified that, while still working at the bank, he used to dread coming to work, and considered that every person who came through the front doors of the bank was a robber or potential robber.

[12] Mr. Arcand testified that, although the bank was very supportive, including providing him with counselling and time off, with pay, he has left the bank, and is considering other career options.

The Offender

[13] The following exhibits in this proceeding provided this court with information regarding Christopher Musclow:

(1) Exhibit 6 – Criminal Record;

(2) Exhibit 8 – Psychological Testing by Dr. Monik Kalia, 23 April 2013;

(3) Exhibit 9 – Psychiatric Assessment by Dr. Julian Gojer, 22 December 2012;

(4) Exhibit 10 – Pre-Sentence Report by Helen Mrakovcich, 20 March 2013;

(5) Exhibit 11 (a – d) – Documentation of Belford University Degree in Business Administration, 15 February 2011;

(6) Exhibit 12 (a – d) – Documentation of New Life Prison Ministry Bible Study, 11 October 2012;

(7) Exhibit 13 – Certificate of Completion, Ministry of Corrections CIAC Core Substance Abuse Programme, 31 July 2012.

The Presentence Report

Who Is Christopher Musclow?

[14] Mr. Musclow was born in Ottawa, Ontario on 27 April 1984. He has an older half-sister from his mother's side and a brother and sister from his mother and father. His parents separated when he was six. When he was about eleven his father, Jose Uzcategui, was deported to Venezuela and his mother, Darlene Musclow, remarried. As a result, when he was twelve he travelled to Venezuela to live with his father. His mother and stepfather then moved to North Carolina, where his stepfather obtained employment as an engineer. At age thirteen Mr. Musclow returned from Venezuela and attempted to live with his mother and stepfather in North Carolina. This didn't work, and at age fourteen he returned to Venezuela for two years, before coming back to North Carolina when he was sixteen.

[15] At the age of sixteen he was in a serious accident and suffered a brain injury when he jumped from an all-terrain-vehicle without a helmet. He was hospitalized and for three weeks in a coma, with memory loss and resultant brain damage. (Please see testimony of Dr. Julian Gojer, discussed below)

[16] By his own report he then became a behavioural problem, was more impulsive and did "dangerous things".

[17] His parents soon had had enough, and he was "kicked out" of his home, although his parents continued to financially assist him.

[18] However, he continued to deteriorate and become more "out of control", began using drugs and became homeless.

[19] In 2001, at the age of seventeen, he moved back to Canada, settling in Toronto. He enrolled at George Brown College but his "street' lifestyle, which included selling drugs and performing as an "adult entertainer" was more lucrative, and he soon gave up his studies.

[20] He reports that within a short time he was addicted to cocaine, and began to commit petty theft and eventually robbery to support his habit.

[21] He was first arrested in 2003, when he was convicted of trafficking and then in October of 2004, he was found guilty of three counts of robbery, for which he received a sentence of two-years-less-a-day.

[22] He has a further conviction for one count robbery in 2006, for which he received a sentence of three years, and a few drug related convictions, as well as a conviction for assault and carrying a concealed weapon.

[23] In February of 2009, he was recommitted to the Federal system as a parole violator.

[24] In the pre-sentence report, a positive note is that Mr. Musclow has had a seven-year relationship with Stephanie Young, and while they are not married, Ms. Young reports that the relationship is strong, despite Mr. Musclow's criminal activity and time in custody.

Remorse

[25] After hearing Kevin Arcand testify on 25 April 2013, Mr. Musclow asked to make a statement to the court, which was permitted at that juncture, on consent of the parties.

[26] In his in-court statement Mr. Musclow apologized to Mr. Arcand, the other victims and to the court for his actions during the series of bank robberies to which he pleaded guilty.

[27] Mr. Musclow stated that, until he participated in the series of sessions with Dr. Gojer and Dr. Kalia, heard the testimony of Mr. Arcand and has had an opportunity while in custody to reflect on his pattern of behaviour, he never considered himself a mean or violent person or a person who set out to cause harm to others.

[28] Mr. Musclow stated that he now realizes that he was not considering the effect his actions would have on the employees in the bank, and he is now, on reflection, very sorry for the trauma and fear he caused to the victims in the robberies.

[29] In addition, I heard testimony over two separate days, 25 April & 7 June 2013 from Dr. Julian Gojer, regarding his findings with respect to Christopher Musclow's psychological make-up and prognosis for recovery.

Dr. Julian Gojer

[30] Dr. Julian Gojer initially testified on 25 April 2013. Exhibit 7 in this proceeding is Dr. Gojer's curriculum vitae. He currently runs the Manasa Clinic in Toronto, is employed at the Department of Neuropsychiatry at Toronto Western Hospital and is a consulting psychiatrist at the St. Lawrence Valley Correctional and Treatment Centre in Brockville, Ontario. He received his credential in psychiatry from the Royal College of Physician and Surgeons of Canada in 1991, and has specialized in Forensic Psychiatry and has published, lectured and taught in the field for over twenty-one years.

[31] Both Dr. Gojer and his associate, Dr. Monik Kalia, prepared reports for this hearing. Dr. Gojer's prepared a Psychiatric Assessment, Exhibit 9, dated 22 December 2012, based upon an interview with Mr. Musclow at the Toronto East Detention Centre and follow up interviews with Mr. Musclow's girlfriend and brother. At the request of Dr. Gojer, Dr. Kalia prepared a Psychological Report, Exhibit 8, dated 23 April 2013, covering psychological testing of Mr. Musclow, on 10, 15 & 16 April, 2013 for a total of 14 hours, again at the Toronto East Detention Centre.

[32] In his Report of 22 December 2012, Exhibit 9, Dr. Gojer sets out starting at page seven, his initial diagnosis and recommendations.

[33] Dr. Gojer stated at page seven that Mr. Musclow suffers from an antisocial personality disorder, complicated by historical cerebral lobe brain injury and historical substance abuse.

[34] Dr. Gojer also reported that he did not see the presence of any ongoing psychosis or a major mood disorder.

[35] Dr. Gojer also testified that although his preliminary diagnosis in December of 2012 was that Mr. Musclow was a high risk to re-offend his prognosis was improving through the stability of consistent medication that he was now receiving during his fifteen month period of detention at the time of Dr. Gojer's testimony.

[36] Dr. Gojer testified that as of 25 April 2013, Mr. Musclow appeared to Dr. Gojer and Dr. Kalia, after fourteen hours of extensive testing by Dr. Kalia, to have been successfully stabilised through his medication.

[37] Dr. Gojer testified that appropriate medication coupled with appropriate rehabilitative cognitive therapy while incarcerated and prior to his release from the federal penitentiary system might well reduce substantially Mr. Musclow's risk factors.

[38] Dr. Gojer recommended that Mr. Musclow be treated with a combined program of medication, cognitive therapy and acquired-brain-injury remedial programs, followed by a planned gradual release into the community.

[39] However, Dr. Gojer cautioned that the role that Mr. Musclow's brain injury might play in his future prognosis and treatment plan while in the Federal system was not as clear as it should be.

[40] Dr. Gojer further explained that the way to assess the continuing impact of Mr. Musclow's brain injury was to conduct a new E.E.G. as an assist to the Federal authorities in their fashioning of a treatment plan.

[41] It was Dr. Gojer's view, from his experience in working with Federal and Provincial inmates, that unless the E.E.G. was done prior to Mr. Musclow's entry into the Federal system, this important element of assessment and testing might not take place in the initial Federal classification process and could result in a less effective remedial treatment plan.

[42] It was Dr. Gojer's testimony and preliminary conclusions in his testimony of 25 April 2013, that an up-to-date E.E.G. scan might assist the preparation of a more effective Federal Penitentiary classification and treatment plan for Mr. Musclow once he was sentenced.

[43] For this reason Dr. Gojer strongly recommended that prior to my rendering a disposition in this hearing, and up-to-date E.E.G. be conducted.

[44] On the basis of this recommendation, and with the consent of both counsel, I therefore adjourned the sentencing hearing for a further hearing day, to 7 June 2013, to permit that testing to be done as part of the sentencing fact-finding process.

[45] Following the hearing on 25 April, Dr. Gojer arranged for Dr. Kalia to conduct an E.E.G. and further neuropsychological testing of Mr. Musclow to attempt to ascertain whether Mr. Musclow had residual brain damage, based upon his documented head injuries in his adolescence and an E.E.G. scan conducted at the St. Lawrence Valley Correctional and Treatment Centre in 2005, that indicated frontal and temporal lobe damage to his brain.

[46] At the resumption of the hearing on 7 June 2013, Dr. Gojer testified that Mr. Musclow's E.E.G. results were negative, and Mr. Musclow exhibited no obvious evidence of continuing brain injury or damage.

[47] In summary, Dr. Gojer testified that the updated E.E.G. results were that Mr. Musclow now tested as normal with no residual frontal or temporal lobe damage or other abnormalities.

[48] Dr. Gojer testified on 7 June 2013 that as a result of the neuropsychological testing conducted by Dr. Kalia in April of 2013 at the Toronto East Detention Centre (Exhibit 8) and the E.E.G. results, he could say with some confidence that Mr. Musclow does not now display any residual effects of the brain damage as a result of his teenage injury that was confirmed by the St. Lawrence Valley testing in 2005 and does not currently suffer from any neurological deficits.

[49] It was Dr. Gojer's opinion that this very positive finding is linked to Mr. Musclow's compliance with his current medication, as follows:

(1) Neurontin (Brain stabilizer) – 800 mg, three times per day;

(2) Cipralex (Impulse Control) – 20 mg per day; and

(3) Clonazepin (Anxiety Control) – 0.5 mg twice per day.

[50] Dr. Gojer hypothesized that, based on the current medical assessment and testing, Mr. Musclow's brain appears to be repairing itself, a process that will continue over time, with consistent medical and custodial care over the next three to five years.

[51] Dr. Gojer testified that in his opinion, consistent medical and custodial care of the next three to five years will provide the best long-term opportunity for Mr. Musclow to rehabilitate himself and overcome his historically well-documented anti-social tendencies.

[52] Dr. Gojer testified that, in his opinion, the next appropriate piece of the assessment and treatment plan for Mr. Musclow, a plan that should be consistent and implemented over the next three to five years, should focus on a Cognitive Behavioural Treatment ("CBT") treatment model with two components:

(1) Anger Management; and

(2) Development of Cognitive Skills

[53] Dr. Gojer testified that, as a result of the psychological testing conducted by Dr. Kalia, his own observations and the updated E.E.G. testing, it is his opinion that these two elements would assist Mr. Musclow both in coping with the very difficult adjustment he will have to make to the long period of incarceration he now will be facing, and with his ability to gradually re-integrate into society through the parole process.

Submissions on Sentence

[54] Both the Crown and the defence agree that Mr. Musclow should receive a penitentiary sentence. In addition they both agree that, pursuant to section 719(3.1) of the Criminal Code, he should be given credit for his pre-sentence custody, which began on 9 February 2012 until his sentencing date, which is 16 August 2013, a total of just over eighteen months at the rate of 1.5 for each day in custody, which I calculate to provide a total credit for Mr. Musclow of twenty-seven months and eleven days.

[55] On consent, I therefore find that due to the conditions at the East Detention Centre in Toronto and the Ontario Court of Appeal ruling in R. v. Summers 2013 ONCA 147, [2013] O. J. No. 1068, that Mr. Musclow shall receive enhanced credit of twenty-seven months and eleven days.

[56] The Crown submits that the appropriate global sentence should be ten years, less pre-sentence credit.

[57] The defence submits that the appropriate global sentence should be seven years, less pre-sentence credit.

Legal Framework

Using imitation firearm in commission of offence

Section 85(2) Every person commits an offence who uses an imitation firearm

(a) while committing an indictable offence,

(b) while attempting to commit an indictable offence, or

(c) during flight after committing or attempting to commit an indictable offence,

whether or not the person causes or means to cause bodily harm to any person as a result of using the imitation firearm.

Punishment

Section 85(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable

(a) in the case of a first offence, except as provided in paragraph (b), to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of one year; and

(b) in the case of a second or subsequent offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of three years.

Sentences to be served consecutively

Section 85(4) A sentence imposed on a person for an offence under subsection (1) or (2) shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1) or (2).

Purpose of Sentencing

Section 718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

Fundamental principle

Section 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Other sentencing principles

Section 718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(v) evidence that the offence was a terrorism offence

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

Commencement of sentence

Section 719(1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.

Section 719(2) Any time during which a convicted person is unlawfully at large or is lawfully at large on interim release granted pursuant to any provision of this Act does not count as part of any term of imprisonment imposed on the person.

Determination of sentence

Section 719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

Exception

Section 719(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

Reasons

Section 719(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.

Record of proceedings

Section 719(3.3) The court shall cause to be stated in the record and on the warrant of committal the offence, the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed.

Validity not affected

Section 719(3.4) Failure to comply with subsection (3.2) or (3.3) does not affect the validity of the sentence imposed by the court.

[58] Both the Crown and the defence agree that for the purposes of this sentence, Mr. Musclow's six "imitation firearm" offences should all be treated as "first offences" "arising out of the same series of events" and thus, in calculating his global sentence, pursuant to s. 85(3) (a), s. 85(4) and s. 719(3.3) of the Criminal Code each must attract a minimum term of one year which must be served consecutively to the other offences of robbery in each instance. (See paragraph 95, below)

The Case Law

[59] In support of the Crown submission that Mr. Musclow should receive a sentence of ten years in jail, counsel cited six cases where sentencing for multiple robberies resulted in sentences of twelve years or more:

R. v. Callan [2000] O. J. No. 3684 (Ont.C.A.) – The Court of Appeal upheld the trial judge, Donnelly J., who gave a thirty year old fifteen years in jail for five robberies, committed over a period of twelve months. The aggravating factors were that the accused pointed a firearm with a red laser sighting beam, at bank employees and escaped in stolen vehicles.

R. v. Duhamel [2004] O.J. No. 1164 (Ont. C.A.) – The Court upheld the trial judge's sentence of twelve years in jail for eight robberies of financial institutions committed by an accused with a lengthy criminal record while he was on parole for the same offence.

R. v. Wolynec [2005] O.J. No. 6452 (S.C.J.) – At trial, a fifty-two-year-old alcoholic with seventy criminal convictions, who had spent most of his adult life in custody was given thirteen years for seven robberies committed in the City of Toronto over a six month period in 2002. The defence provided a report from forensic psychiatrist Dr. Julian Gojer, who diagnosed the accused as suffering from an antisocial personality disorder and post-traumatic stress disorder as a survivor of childhood sexual abuse. He was seen as a very high risk to re-offend.

R. v. Nikolovski, [2005] O.J. No. 494 (Ont. C.A.) – The Court upheld the trial judge's designation of the accused as a long-term offender ("LTO") for ten years and a three year sentence for two additional bank robberies, where he had a record which included thirteen prior robbery convictions.

R. v. Dennis [2005] O.J. No. 3677 (Ont. C.A.) – The Court of Appeal vacated a life sentence and replaced it with a sixteen-year sentence with no eligibility for parole for seven years for a single robbery by a seventy-year-old offender with four previous robbery convictions who purported to be carrying a bomb with sufficient capacity to blow up the building.

R. v. Johnson 2012 ONCA 339, [2012] O.J. No. 2255 (Ont. C.A.) – The court vacated a set of concurrent sentences of fourteen years for nine bank robberies, committed by a 54 year-old drug addict who was on day-parole while serving a twelve-year sentence for six counts of robbery, the court varied the global sentence to eleven years based upon the principle of totality.

[60] The defence cited a further series of cases in support of the defence submission that the appropriate sentence should be seven years:

R. v. Parry 2012 ONCA 171, [2012] O.J. No. 1209 (Ont. C.A.) – The Court of Appeal set aside a twenty-two year sentence for five armed robberies and four home and commercial robberies where the offences included break and enter, use of a disguise, pointing a firearm, forcible confinement, assault with a weapon, theft with a weapon and conspiracy to commit robbery. All of the pleas were entered without police investigation, and without a lawyer, on the sole initiative of the accused, who had a religious conversion while serving a seven year sentence for a guilty plea to three other robberies. The Court of Appeal gave effect to the principle of totality by reducing the twenty-two year sentence to fifteen years, thereby giving effect to the principle of totality.

R. v. Johnson [2012] O.J. No. 2055 (Ont. C.A.) – See above, again as support for the application of the principle of totality.

R. v. Speziale [2011] O.J. No. 3057 (Ont. C.A.) – The court set aside a five year sentence and sentenced the accused to time served of fourteen months and nine days for three drug offences: possession for the purposes, cocaine; possession of cocaine and possession of MDMA. The court held that the appropriate sentence should have been a reformatory term, having regard to the twenty-five-year-old appellant's possibility for rehabilitation, and the need not to discourage him from continuing with the positive life changes he had made.

R. v. Whalen 2011 ONCA 74, [2011] O.J. No. 312 (Ont. C.A.) – The court upheld the trial judge's sentence of twenty-one months followed by three-years-probation for the 21 year-old offender who had made substantial strides towards rehabilitation in the eyes of the court. The court stated that the trial judge "had to shape a sentence that maximized the potential to achieve rehabilitation" on the facts of that case.

R. v. Merrick [2007] B.C.J. No. 2623 (B.C. Prov. Ct.) – The trial judge sentenced the thirty-five-year-old with a long criminal record to a sentence of six years concurrent for ten bank robberies, in addition to pre-trial credit, for a total sentence of seven years and ten months.

R. v. Castonguay [2010] O.J. No. 963 (O.C.J.) – Justice Peter West sentenced a forty-two-year old alcohol and cocaine addict who was married with four young children to six years, less time served of 341 days, (credited two for one) on a plea to eight counts of robbery in which facts relating to five further robberies were admitted (All robberies committed between 22 April and 26 May 2009). All fifteen robberies were of banks in which tellers were handed a note that read "this is a robbery; give me all your money". The accused had an extensive criminal record but no other robberies, was on probation at the time of the offences but was seeking assistance through Alcoholics Anonymous and a Christian Addiction program, "Celebrate Recovery" and working at Humber Community Senior Services as a Home and Property Support Services Coordinator where he was highly regarded. Justice West stated that there was "some hope" that Mr. Castonguay might be rehabilitated, and in such a circumstance, the Crown's submission that the sentence should be twelve to fourteen years was "well outside" the appropriate range of sentence for the facts before him.

Analysis

[61] The determination of a proper sentence in this case calls for a consideration and balancing of the principles of sentencing which are set out in ss. 718 to 718.2 of the Criminal Code, quoted above, as well as the aggravating and mitigating factors which exist.

[62] Bank robberies, by their very nature, are serious offences which require sentences that reflect the principles of deterrence and denunciation.

[63] However, it cannot be stated often enough that sentencing is highly individualized process and any individual determination of sentence

[64] The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is to be increased or reduced to account for any aggravating or mitigating circumstances. It should strive to be similar in relation to other sentences imposed on similar offenders in similar circumstances.

[65] In a case such as this, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.

[66] Sentencing authorities for multiple bank robberies carry a wide disposition range depending on all of the above factors.

[67] In the cases provided by counsel and discussed above, the range of sentence for multiple bank robberies over a short period of time varies from twenty-one months to fifteen years. It is clear that any sentence must focus on the protection of the public by the imposition of a significant penalty that denounces this conduct and separates the offender from the rest of the community. At the same time, the sentence must fit the circumstances of the offender, and perhaps most importantly reflect and encourage any reasonable prospects for rehabilitation.

[68] Based upon the case law and the submissions from counsel, I have concluded that the appropriate range of sentence for Mr. Musclow would be in the range of six to ten years.

Aggravating Factors

[69] The most obvious aggravating factor is that fact the Mr. Musclow, in each of the six robberies, displayed an imitation firearm when he approached the teller and demanded money.

[70] This is reflected in the testimony of Kevin Arcand (Counts 5, 6, 11 & 12), and the Victim Impact Statements filed on behalf of Kevin Arcand, Fadia Abou-Chahine (Counts 7 & 8), Tina Aram (Counts 1 & 2) and Sherri Shomali (Counts 9 & 10).

[71] Kevin Arcand and Tina Aram specifically mention the trauma they experienced because of their observations of Mr. Musclow holding what appeared to them as a gun during the robberies.

[72] Fadia Abou-Chahine writes that she was traumatized by Mr. Musclow wearing a hood.

[73] All four tellers took time off work, as a result of the traumatic impact of the robberies and Mr. Arcand subsequently left his job at the Royal Bank and no longer works as a teller.

[74] It is also aggravating that Ministry records indicate that while incarcerated at the St. Lawrence Valley in 2004 to 2005 he was described as having "great difficulty following the rules".

[75] It is also aggravating that Mr. Musclow was found to be a Statutory Release Violator by the Parole Board in February of 2009.

Mitigating Factors

[76] The first and most obvious mitigating factor, in my view, is Mr. Musclow's spontaneous and sincere statement of remorse to Mr. Arcand and the other victims in court on 25 April 2013.

[77] The second mitigating factor, in my view, is Mr. Musclow's record, Exhibit 6. Although it shows two separate pleas, one in 2004, for three counts of robbery and one in 2006 for a single count of robbery, it is not a long record, and covers just over one page over ten years, with a three year gap since September of 2009.

[78] Although Mr. Musclow has a significant prior record, and as I stated, this includes previous robberies, he is not, in my view, a person whose record suggest that he cannot change course at this relatively early stage in his life.

[79] The third obvious mitigating factor is Mr. Musclow's continuing seven-year relationship with Stephanie Young, which appears strong despite Mr. Musclow's ongoing criminal activity and incarceration.

[80] This relationship provides Mr. Musclow with a valuable tie to this community, which should auger well for his motivation while incarcerated, to be compliant with his medication and to continue to work on his own rehabilitation.

[81] It is also mitigating that Mr. Musclow has demonstrated a motivation to better himself while in custody since 9 February 2012 on the charges now before the court.

[82] Mr. Musclow's motivation to better himself is already quite apparent from Exhibits 11 (a – d), 12 (a – d) and 13 which reflect his commitment to deal with both his historical substance abuse through a Ministry of Corrections program and to work on personal self-development through a series of correspondence courses and bible study.

[83] Another significant mitigating aspect on sentencing is the cumulative medical evidence and testimony by Dr. Julian Gojer in this sentencing hearing.

[84] Dr. Gojer testified that although his initial conclusion in his report of 22 December 2012, that Mr. Musclow was a high risk to re-offend, he could now safely say that Mr. Musclow's prognosis had improved through his compliant response to his medication.

[85] Dr. Gojer testified on 7 June 2013 that the "residual brain damage" that had been evident in the testing of Mr. Musclow at the St. Lawrence Valley Correctional and Treatment Centre in 2005 and which, at least could partially explain some of Mr. Musclow's criminal behaviour and his antisocial personality disorder was no longer present, as of 7 June 2013.

[86] Dr. Gojer testified that the psychological testing conducted by Dr. Kalia in April of 2013 and the follow-up E.E.G. testing at the request of Dr. Gojer in June of 2013 had resulted in a finding of no abnormal brain activity and led Dr. Gojer to conclude that there were now no "residual effects" due to Mr. Musclow's compliance with his medical regime now in place since he has been in custody.

[87] Dr. Gojer therefore concluded that as of 7 June 2013 Mr. Musclow's brain seems to be healing, as a result of the consistent compliance by Mr. Musclow with his medical treatment, during his incarceration for over fifteen months on these charges.

[88] Dr. Gojer further opined that this compliance, and the resulting medical improvement that Mr. Musclow exhibits brings with it a concurrent reduction in the probability that he will re-offend, an improvement in his long-term prognosis for rehabilitation and a more reasonable likelihood of Mr. Musclow achieving a successful re-integration into society following his penitentiary sentence.

[89] In my view, this medical evidence and testimony from Dr. Gojer, who is a senior clinician and specialist, very respected in his field, provides the court with some confidence in Mr. Musclow's potential for rehabilitation and thus provides the court with more reason to fashion a sentence that balances the principles of denunciation and deterrence with that of rehabilitation.

[90] In my view, the Crown's submission that Mr. Musclow should receive a global sentence of ten years, while not outside the appropriate range of sentence in such cases, on the facts before me, is excessive.

[91] In my view, a ten year sentence would not be appropriate for Mr. Musclow, having regard to the principle of totality and the mitigating factors I have discussed in some detail above.

[92] These factors include Mr. Musclow's clear articulation in court of his remorse, his seven-year relationship with Stephanie Young, his efforts to improve his circumstance during his time in custody, and his improving medical prognosis.

[93] Based upon the thorough review of Mr. Musclow's medical history by Dr. Gojer, and his relatively optimistic view of Mr. Musclow's potential for rehabilitation, I am persuaded that the best long-term protection for society can best accomplished by a remedial treatment plan for Mr. Musclow while he is incarcerated in the Federal system that encourages him to continue on his path of self-improvement, with the ultimate purpose of providing him with the skills that will eventually enable him to become a productive and contributing member of society.

[94] I therefore have concluded that, based upon all of the sentencing factors discussed above, society and Mr. Musclow can best be served by a global sentence for Mr. Musclow of eight years in jail less his credit for his pre-sentence custody.

[95] The global calculation of the sentence, pursuant to sections 85(3) (a), 85(4) and 719(3.3) of the Criminal Code, prior to the deduction of Mr. Musclow's credit for pre-sentence custody, would be consecutive sentences of four months each for counts 1, 3, 5, 7, 9 & 11, and twelve months each for counts 2, 4, 6, 8, 10 & 12.

[96] To give effect to this global result, and counsels joint submission on the provisions of section 719(3.1) of the Criminal Code, Mr. Musclow will receive credit for his pre-sentence custody from 9 February 2012 until today, 16 August 2013, a total of eighteen months and seven days, at a rate of 1.5 to 1, and I will fix Mr. Musclow's enhanced credit at twenty-seven months and eleven days.

[97] This will require Mr. Musclow to spend a further period of five years, eight months and 19 days in gaol.

Result

[98] To accomplish this sentence in terms of the counts before the court, and to comply with the language of sections 85(3)(a) and 85(4), Mr. Musclow will be sentenced to the following consecutive sentences, and the Information endorsed accordingly:

Count 1 – One month in gaol;

Count 2 – Time served (18 months & 7 days, credited at a rate of 1.5 to 1), followed by an additional 2 months and 19 days in gaol, consecutive to count 1;

Count 3 – One month in gaol, consecutive to counts 1 & 2;

Count 4 – Twelve months in gaol, consecutive to counts 1, 2 & 3;

Count 5 – One month in gaol, consecutive to counts 1, 2, 3 & 4;

Count 6 – Twelve months in gaol, consecutive to counts 1, 2, 3, 4 & 5;

Count 7 – One month in gaol, consecutive to counts 1, 2, 3, 4, 5 & 6;

Count 8 – Twelve months in gaol, consecutive to counts 1 through 7;

Count 9 – One month in gaol, consecutive to counts 1 through 8;

Count 10 – Twelve months in gaol, consecutive to counts 1 through 9;

Count 11 – One month in gaol, consecutive to counts 1 through 10;

Count 12 – Twelve months in gaol, consecutive to counts 1 through 11.

[99] In the result, Mr. Musclow shall be ordered to serve, in addition to the time he has already spent in pre-sentence detention, a further term of imprisonment of five years, eight months and 19 days in gaol.

[100] As requested, I will also make a DNA order, and a Section 109 weapons prohibition for life.

Released: 16 August 2013

Signed: "Justice Paul H. Reinhardt"