ONTARIO COURT OF JUSTICE

CITATION: R. v. Q.W., 2020 ONCJ 379

DATE: 2020 03 13

COURT FILE No.: Central East Region: Oshawa Courthouse 19-RY26008

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Q.W. and T.C.

Before Justice Peter C. West

Submissions on Behalf of Q.W. were Heard on February 6, 2020 and Submissions on Behalf of T.C. were Heard on February 18, 2020

Reasons for Sentence released on both Q.W. and T.C. March 13, 2020

Ms. S. Thompson............................................................ counsel for the Crown

Mr. M. Jacula............................................... counsel for the young person Q.W.

Mr. A. Stubbs................................................ counsel for the young person T.C.

WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED --(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED --(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. NO SUBSEQUENT DISCLOSURE -- No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES -- Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Reasons for Sentence

WEST J.:

[1] Q.W. pleaded guilty on November 21, 2019, to four counts of robbery contrary to s. 343 of the Criminal Code of Canada. The four robberies were in respect of a Scotiabank in Kitchener on February 23, 2019; the CIBC Bank in Grimsby on February 27, 2019; the CIBC Bank in Ajax on March 6, 2019; and the CIBC Bank in Hamilton on March 11, 2019.

[2] T.C. pleaded guilty on December 3, 2019, to two counts of robberies contrary to s. 343 of the Criminal Code of Canada. The two robberies were in respect of a Scotiabank in Kitchener on February 23, 2019 when he was with Q.W. and the CIBC Bank in Vaughan on March 4, 2019 when he was with his adult co-accused, Michael Christopher. Q.W. was the driver of the stolen white Jetta on March 4, 2019, although he did not plead guilty in respect of this robbery and no facts were read in respecting this robbery on his guilty plea. Consequently, I am not considering this incident in terms of Q.W.’s sentence.

[3] The robberies were planned and sophisticated, targeting Scotiabank and CIBC banks and each robbery was committed by three individuals (Q.W. and T.C., both young persons and Michael Christopher, an adult co-accused, aged 18) with one of the individuals driving a stolen vehicle and the other two entering the bank to perform the robbery. The robberies were very quick and the two individuals entering the bank had their faces and hands covered, one would jump the counter and demands would be made for money. No weapons were ever shown.

[4] Presentence reports were ordered for each young person through probation. Both Q.W. and T.C. do not have youth records and are first offenders. Victim Impact Statements were provided by some of the tellers and bank staff who were working when the robberies were committed (Williams: 4 and Collins: 1).

[5] Each of the young persons pleaded guilty on a separate date but I adjourned the sentencing to the same date, so that Q.W. and T.C. could be sentenced together given their involvement in some of the same robberies.

Factual Background

[6] Agreed statements of fact were read and entered as exhibits for both Q.W’s and T.C.’s sentencings. I do not intend to provide detailed descriptions of the robberies; however, it is clear that the robberies were well-planned, sophisticated, the financial institutions, specifically Scotiabank and CIBC, were targeted and the vehicle(s) used by the perpetrators was stolen. Two perpetrators entered the banks, while a third person remained in the stolen vehicle, a Volkswagen Jetta (Kitchener robbery) , for a quick getaway. A Subaru was used to get away from the Ajax robbery with stolen plates attached from the Jetta. Another vehicle were used, a blue Mitsubishi, also with stolen plates. This vehicle was abandoned after a collision on the QEW and police recovered monies from the Grimsby bank robbery outside the Mitsubishi, as well as Q.W.’s iPhone and school work found in Q.W.’s name. Police recovered video from the Go station showing Q.W. and Michael Christopher wearing the same clothes as in the Grimsby robbery and both individuals were able to be identified.

[7] The robberies lasted a matter of a few minutes, where one of the perpetrators would jump over the teller’s counter and demands would be made for money and once provided they were flee the bank to the waiting vehicle. Upon entering the bank the perpetrators would yell for everyone to get down and demand the clerks provide them with money. The perpetrators’ faces were covered by balaclavas, ski masks or scares and hoodies and they wore gloves. No weapons were shown and only in one of the robberies was there any mention of a gun: the Scotiabank at 1144 Courtland Avenue East in Kitchener on February 23, 2019. During this robbery T.C. grabbed a teller’s wrist and jerked her around telling her to open the drawer faster or he would shoot them.

[8] After the robbery from the CIBC in Grimsby the police seized Q.W.’s iPhone. After a search this iPhone was found to contain GPS information respecting the Kitchener and Grimsby banks. Further, information discovered on this iPhone related to a “Journey” with an ending point of 905 Rymal Rd. E., Hamilton, the address of the CIBC bank Q.W. and his adult co-accused, Michael Christopher attempted to rob. T.C. was arrested on March 4, 2019, after robbery of Vaughan CIBC. T.C. was released and re-arrested on March 12, 2019, in the Jetta and an iPhone belonging to T.C. was seized and searched, which disclosed selfie photos of T.C. and Q.W. with large amounts of cash. T.C.’s cell phone also had GPS information respecting the CIBC Bank in Vaughan. A second cell phone was seized after the arrest of Q.W., which contained searches respecting various bank robberies in various cities (Vaughan, Barrie, Kitchener, Cambridge) and all searches were recovered by police, as they had been previously deleted. Subsequent surveillance of Q.W. and T.C. observed them together with Q.W. driving Subaru with stolen plates from the Jetta. Q.W. also was observed with adult co-accused, Michael Christopher during surveillance.

[9] Large quantities of monies were taken from the various banks:

1. Scotiabank, 1144 Courtland Avenue East, Kitchener (Q.W. and C.T.): $10,452.00

2. CIBC, 27 Main St. W., Grimsby: (Q.W. and adult co-accused, Michael Christopher) $28,632.00 (a blue Mitsubishi was used to flee but was involved in collision on the QEW, the males fled. Recovered underneath and inside the Mitsubishi was $8,389.00 CDN and $3,221.00 US.

3. CIBC, 114 Harwood Ave. S., Ajax: $15,089.00

4. CIBC, 905 Rymal Rd., Hamilton no money obtained as ATM bank (Q.W. and M. Christopher arrested.

Total monies not recovered in robberies to which Q.W. pleaded guilty: $42,563.00.

5. Scotiabank, 9641 Jane St., Vaughan: (T.C. and adult co-accused Michael Christopher, Q.W. driver of Jetta) $2092.26 but $1659.15 recovered, leaving $433.

Total monies not recovered in robberies to which T.C. pleaded guilty: $10,885.

[10] Other than the two occasions discussed above when monies were found by the police, no other funds stolen from the various financial institutions were recovered. Both of Q.W.’s and T.C.’s homes were searched pursuant to a search warrant and items of clothing similar to that seen on the various banks’ surveillance videos were found and seized. All of the phones belonging to Q.W. and T.C. were also searched pursuant to search warrants.

Young Person’s Circumstances

Q.W.’s Background

[11] At the time of the offences Q.W. was 16 ¼ years old. He lives with his mother and his older brother, currently 19 years of age. His biological father was deported in 2005 and he has had very little involvement with him since. He is close to his grandmother, although she is not aware of the charges he is facing. His mother was employed for many years at City Financial and recently worked on contract for Tiffany’s. She is currently seeking employment. She is the sole supporter of her family and her finances are limited.

[12] Q.W. began having difficulties at the age of 12 and began to act out. Over the next several years his behaviour deteriorated and he had conflicts with his mother. He began using drugs and was described as being angry all the time. His mother admitted she was partly to blame for Q.W. acting out as she was often not home. She developed a relationship with a man and they had a son who is now three years of age. Q.W. was upset with his mom because she was never home, there was no food to eat, although his mother indicated there was always food available.

[13] As a result of Q.W.’s arrest, his mother has been spending more time at home and she and Q.W. are improving their relationship. Q.W. is described as being very loving towards his little brother. His mother advised the probation officer she has noticed a significant change in Q.W.’s attitude and behaviour since his arrest. She described Q.W. as generous, funny and outgoing.

[14] Q.W. began to socialize with negative peers at high school, which caused him to lose interest in sports, truancy from school became the norm, and drug use. Since his arrest, Q.W. advised he has stopped hanging out with these negative peers and his mother and brother confirmed this. In Grade 9 and 10 Q.W. began to use marihuana on a daily basis. His brother described Q.W. as smoking so much weed that he lost weight and looked like a skeleton. Since his arrest he has stopped using this substance. On two of the robberies he admitted that he was high.

[15] At the current time Q.W. attends high school and has 11 credits to complete to graduate. He became more committed to attending and working at school and advised the probation officer he passed all of his courses the past semester. The probation officer contacted Q.W.’s guidance counsellor, who knew the family because Q.W.’s older brother attended the same high school. He described Q.W. as a pleasant young man whose behaviour with staff and peers has been positive. He advised he was surprised Q.W. was involved in the kind of offences he pleaded guilty to. The guidance counsellor indicated Q.W. has the ability to get good grades but while he came to school every day, he still did not attend classes as he should and hung out in the cafeteria with his friends. The guidance counsellor believed Q.W. was genuinely remorseful for his actions. His mother, brother and his guidance counsellor all believe the offences are out of character for him.

[16] Q.W. has become involved in a men’s soccer league and intends to complete high school.

[17] On his arrest for the current charges he was held at Brookside Youth Centre and there were no difficulties. He was released on a strict bail order on March 22, 2019, and there have been no new charges. His mother and brother are his sureties. The probation officer believed Q.W. understood and appreciated the seriousness of the offences he was involved in. Q.W. expressed to me in court that he understood his actions were wrong and admitted at the time he was committing the robberies he did not think about how the victims would be affected. He read the victim impact statements and now understands the significant impact his actions had on them. He was trying harder in school and has a much better relationship with his mother. Q.W. also advised me he had stopped using marihuana since his arrest.

[18] It was the probation officer’s opinion Q.W. was a suitable candidate for community service work. Associated Youth Services of Peel offers the SNAP (Stop Now and Plan), which is an evidence-based program for youth in conflict with the law. The probation officer was of the opinion Q.W. was a suitable candidate for an open custody setting if a custodial sentence was imposed.

[19] Q.W.’s mother and her friend have been present in court for each of his appearances and are supportive of assisting in Q.W.’s rehabilitation.

T.C.’s Background

[20] T.C. was 16, almost 17, at the time of the commission of these offences. He is the second of three children and lives with his parents and siblings. The family currently resides in Brantford for the past two and a half years since moving from Mississauga. Both of his parents are employed.

[21] His mother described T.C. as changing in Grade 8-9 when he became very angry. In Grade 8 T.C. lost a close friend and moved in with an older mutual friend who had his own apartment. T.C. was not honest as to where he was staying or his activities. He admitted to the probation officer he was selling drugs in order to live with this friend.

[22] T.C. had a second friend pass away, who he described as like an older brother to him. He was attending counselling to assist him with his trauma. His mother described T.C.’s peer group as having a very negative influence on him. During this time T.C. had stopped associating with his neighbourhood friends, who were good kids. He was using marihuana to help relieve his stress and to overcome his feelings of loss and grief concerning the deaths of his two friends.

[23] His mother described how she and T.C.’s father did not see this coming and his arrest took them by surprise. The house arrest release has assisted in giving his parents a sense of control again and T.C. has not gotten into any further criminal difficulty. T.C.’s girlfriend is expecting their child and is due April 29, 2020. Both families are supportive of this child’s birth. The birth of a child has brought a new focus to the seriousness of what T.C. did. T.C. told the probation officer that “having a baby is making [him] realize that there is more to life.”

[24] T.C. had academic testing started in 2014 with a psychological assessment completed in 2016. The educational assessment revealed difficulties in reading comprehension, basic literacy and basic numeracy. The psychological assessment recommended a referral for a medical consultation concerning his academic difficulties. His significant weakness in mathematics meets the criteria for a diagnosis of a learning disability. It was further recommended that T.C. be forwarded to an Identification Placement and Review Committee in order to consider identifying him as an exceptional student so he could receive more intensive special education. I do not know if this has occurred.

[25] Currently T.C. has nine credits in high school, with seven being compulsory credits. He skipped a great deal of classes and was suspended 4 times. Police were called because T.C. became aggressive and threatening towards staff, gesturing he had a weapon. Ultimately T.C. was SAL’ed, which recommended placement at a Learning Centre. He was able to obtain a further half credit before he dropped out. Traditional school and online learning are not easy for T.C. He chose to be with friends over school.

[26] T.C. did seek counselling for the loss of his friend and began seeing a counsellor at Woodview Mental Health and Autism Services. He met with the counsellor on four occasions and had an additional appointment scheduled at the time of the PSR. There is a recommendation from his counsellor for ongoing therapeutic supports. There are programs offered through Brantford Youth Probation Services through St. Leonard’s Society. Woodview is also contracted with Probation Services for individual counselling.

[27] T.C. has followed his house arrest release conditions and is not facing any new charges since being arrested on these charges. The probation officer believed T.C. was a good candidate for community supervision following a custodial open custody sentence.

Victim Impact Statements

[28] Four Victim Impact Statements (VIS) were filed by the Crown on Q.W.’s sentencing hearing and one Victim Impact Statement was filed in respect of T.C.’s sentencing hearing. All of the VISs reflect the significant trauma experienced by the staff of the financial institutions. For the majority of those tellers who wrote VISs the impact of that trauma and fear continues even a year after the events. Some of the tellers have been unable to return to work. Loss of sleep from “night terrors” or nightmares was common, feelings of fear and dread whenever someone comes into the bank, their sense of security and safety was shattered and the inability to serve customers who are wearing hoodies or a toque and sunglasses were described. One of the victims has had to attend therapy sessions to assist with her dealing with the traumatic impact of the robbery, as well as being prescribed medication. All of the victims described feeling completely vulnerable and powerless.

[29] A number of the victims described their fear when the two masked men came into their workplace, jumped over the counter, demanded their keys for the drawer and told everyone to get down on the floor. One teller described staying on the floor even after the robbers left until her manager lifted her up. The attendance of police officers in the bank with their guns drawn also contributed to their fear. One teller described fainting when the police came into the bank.

Sentencing Principles Applicable under the YCJA

[30] Parliament, in enacting the Youth Criminal Justice Act (YCJA), aimed to correct an over-reliance by the justice system on custodial sentences, a practice which evidence showed did not benefit society or the young offender.

[31] The purpose of sentencing under the YCJA is set out at section 38 (1). The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for his or her conduct by imposing just sanctions that have meaningful consequences to the young person and promote his or her rehabilitation and reintegration into society. The focus of sentencing is to protect society through an attempt to rehabilitate and reintegrate the youth back into the community. As a result of the recent amendments, courts can now consider the need for specific deterrence and denunciation in sentencing in youth matters.

[32] The sentence must be the least-restrictive sentence capable of achieving the purpose of sentencing. The sentence must be proportionate to the seriousness of the offence and the offender's degree of responsibility.

[33] Section 38 of the Act goes on to set out principles and factors that must be considered in fashioning an appropriate sentence. A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the principles set out in s. 38(2) of the YCJA. I requested from the Crown an indication of what was happening in respect of the charges facing Michael Christopher, the adult co-accused. I requested this information so that I did not infringe s. 38(2)(a) which provides “the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances.” I am still in the dark respect to Mr. Christopher. Under s. 38(2)(b) any sentence imposed “must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances.”

[34] Sentences in Youth Court must “be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence,” s. 38(2)(c); and “all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons with particular attention to the circumstances of aboriginal young persons,” s. 38(2)(d). In order to comply with s. 38(2)(c), the sentence must (i) be the least restrictive sentence that is capable of achieving the purpose set out in s. 38(1); (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community,” see s. 38(2)(e). Further a youth sentence, subject to s. 38(2)(c), may have the following objectives: (i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences, see s. 38(2)(f), which was added to s. 38(2) as a result of the 2012 amendments to the YCJA. General deterrence as a sentencing principle continues to have no place in determining an appropriate youth sentence, even for violent offences.

[35] The Supreme Court of Canada directed in R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941 at paras. 33 and 34 that the principle of general deterrence does not apply to youth sentences:

In the same way, when the statute speaks of "accountability" or requires that "meaningful consequences" be imposed, the language expressly targets the young offender before the court: "ensure that a young person is subject to meaningful consequences" (s. 3(1)(a)(iii)); "accountability that is consistent with the greater dependency of young persons and their reduced level of maturity" (s. 3(1)(b)(ii)); "be meaningful for the individual young person given his or her needs and level of development" (s. 3(1)(c)(iii)). Parliament has made it equally clear in the French version that these principles are offender-centric and not aimed at the general public:…

In my view, the words of the statute can only support the conclusion that Parliament deliberately excluded general deterrence as a factor of youth sentencing.

[36] Although s. 38(2)(f) added the sentencing principles of denunciation and specific deterrence, general deterrence was not added and remains excluded as a factor to be considered during a youth sentencing.

[37] A Youth Court sentencing judge must consider the following factors in determining the appropriate sentence, pursuant to s. 38(3):

(a) the degree of participation by the young person in the commission of the offence;

(b) the harm done to victims and whether it was intentional or reasonably foreseeable;

(c) any reparation made by the young person to the victim or the community;

(d) the time spent in detention by the young person as a result of the offence;

(e) the previous findings of guilt of the young person; and

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

[38] The starting point in any analysis of whether a custodial sentence is an appropriate sentence for a young person is a consideration of s. 39 of the YCJA. Section 39(1) allows a court to consider a custodial sentence in only four circumstances:

(1) A youth justice court shall not commit a young person to custody under s. 42 (youth sentences) unless

(a) the young person has committed a violent offence;

(b) the young person has failed to comply with non-custodial sentences;

(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or findings of guilt or of both under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or

(d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.

[39] A custodial sentence is open for consideration because Q.W. and T.C. have committed violent offences. The definition of “violent offence” was decided by the Supreme Court of Canada in R. v. C.D.; R. v. C.D.K., 2005 SCC 78, [2005] S.C.J. No. 79 where the majority held violent offences are those offences were a young person causes, attempts to cause or threatens to cause bodily harm. Further, s. 39(1)(d) is also applicable in this case having regard to the fact the offences are indictable and the aggravating circumstances are such the imposition of a non-custodial sentence would be inconsistent with the purpose and principles in s. 38.

[40] Despite that, s. 39(2) directs I must consider first whether there are reasonable non-custodial alternatives available. I must impose the least restrictive sentence that is proportionate, considering the seriousness of the offences and Q.W.’s and T.C.’s degree of responsibility. I must impose a sentence that also promotes Q.W.'s, and T.C.’s rehabilitation and re-integration into society.

[41] Section 39(3) of the Act sets out factors to be considered in determining whether there are reasonable alternatives to custody:

(a) the alternatives to custody that are available;

(b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and

(c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.

[42] In R. v. S. (J.), 2006 CanLII 22101 (ON CA), [2006] O.J. No. 2654 (C.A.), the Ontario Court of Appeal described a “home invasion” robbery in para. 32 as follows:

The main features of a home invasion include the breaking and entering a dwelling place for purposes of committing a theft or robbery, knowing that (or being reckless as to whether) the home is being occupied, and using or threatening to use violence. The presence of weapons is often a factor, as is the confinement of the occupants of the home in some fashion.

[43] In S. (J.) the Court of Appeal found that a “home invasion” robbery, opens the gateway to consideration of a custodial sentence because the type of crime that invokes the tag “home invasion” will have embedded in it a “violent offence” within the meaning of s. 39(1). In my view the phrase “violent offence” also is embedded in the offence of robbery of a financial institution.

[44] In determining whether a non-custodial sentence will meet the objectives of the YCJA, a court must consider whether the sentence is sufficient to hold a young person accountable for the offence. The Court of Appeal has provided guidance as to what it means to hold a young person who offends accountable. In R. v. A.O., 2007 ONCA 144, [2007] O.J. No. 800, (C.A.), at paras. 46-47, Justice Rosenberg held that "accountability in the YCJA is the equivalent of the adult sentencing principle of retribution, reflecting "the moral culpability of the offender, having regard to intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct." Accountability is achieved through the imposition of meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society. The purpose of accountability in this context would seem to exclude accountability to society in any larger sense or any notion of deterrence (see R. v. A.O., at para. 42).

[45] Section 42(9) of the YCJA dealing with the “Serious Violent Offence” designation was repealed in 2012 as part of the amendments to the YCJA. Section 42(5) provides for a deferred custody and supervision order pursuant to s. 42(2)(p), which is similar to a conditional sentence under s. 742.1 of the Criminal Code of Canada. The maximum length is six months. The sentence is only available if “the young person is found guilty of an offence other than one in the commission of which a young person causes or attempts to cause serious bodily harm.” Q.W. and T.C. both engaged in assaultive behaviour that caused psychological/emotional harm, to both the staff of the financial institutions and their customers who were present during the robberies, as reflected in the Victim Impact Statements and continues for many to the present time. The Supreme Court in R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72, defined "serious bodily harm" as "any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant". In R. v. C.D., 2005 SCC 78, [2005] 3 S.C.R. 668, the Supreme Court adopted that same definition for the purposes of defining "serious violent offence" in s. 2(1) of the YCJA , holding that there was "no reason why this definition of 'serious bodily harm' should not also be used for purposes of the YCJA, and, in particular, for purposes of the definition of 'serious violent offence' that is found in s. 2(1) of the Act". As a result a deferred custody and supervision order is not available and the defence have not brought a constitutional or Charter challenge to this provision and in fact they are not seeking a deferred custody sentence.

Mitigating and Aggravating Circumstances

[46] Both of the youths have no youth records and are youthful first offenders (Q.W. was 16 at time of the offences and T.C. was 16, about to turn 17, at the time of the offences). Both of the youths indicated an early intention to plead guilty to these charges and accepted responsibility for their actions. They have both expressed remorse for their actions and a recognition of the trauma and harm their actions caused the staff at the banks. These are significant mitigating circumstances to be considered in determining a fit and proportionate sentence.

[47] There have been positive changes in each Q.W.’s and T.C.’s lives as a result of them being charged with these robberies. They have both complied with their house arrest release orders. T.C. was re-arrested a short time (5 days) after his release (spent four days in pre-trial custody) when he was first arrested on March 4, 2019. I do not know if he was held for any period of time after he was re-arrested. T.C. has not had any further involvement with the police after his release on house arrest. On September 25, 2019, on consent of the Crown, T.C. bail was varied by deleting the house arrest condition and replacing it with a curfew from 11 p.m. to 6 a.m. Q.W.’s bail was not varied and he was on house arrest from his release until March 13, 2020, when he will be sentenced on these offences.

[48] In my view the bank robberies were well-planned and sophisticated. These were not opportunity robberies or the product of a spontaneous error in judgment by Q.W. or T.C. Both Q.W. and T.C. researched the bank locations, targeted specific banks (Scotiabanks and CIBC banks) stole vehicles to be used and wore hoodies, masks and gloves in the robberies to prevent identification. These are all aggravating circumstances.

[49] There were multiple robberies committed over an extended period of time and in different jurisdictions, which demonstrates this was a planned and deliberate spree over several weeks.

[50] No weapons were brandished by the perpetrators or seen during the robberies, which was an aggravating circumstance not present in this case but present in the cases provided by the Crown. There was a threat of violence at one of the banks where T.C. threatened to shoot everyone if they did not comply with the robber’s demands and he grabbed the wrist of one of the tellers when she did not respond quickly enough in opening the money drawer. This occurred when both T.C. and Q.W. were involved together in the bank robbery in Kitchener. In my view this is an aggravating circumstance to be considered.

[51] In all of the bank robberies the two perpetrators who entered the bank engaged in behaviour (yelling, demanding everyone get done on the floor, demanding keys for drawers, jumping over the counter to get into the area of the tellers), which all had a significant long-lasting traumatic impact on the victims, which is an aggravating circumstance.

[52] A significant amount of money was obtained by Q.W. and T.C. and their adult co-accused, Michael Christopher and there has been no recovery. This is also an aggravating circumstance.

Position of the Parties

[53] Ms. Thompson for the Crown seeks a sentence of 24 months less pre-trial custody (12 days: 1.5 to 1.0 = 18 days credit) for Q.W. followed by probation for 12 months. It was her submission the custody should be 16 months of closed custody and 8 months of community supervision.

[54] Ms. Thompson submitted the appropriate sentence for T.C. is 18 months less pre-trial custody (4 days: 1.5 to 1.0 = 6 days) , composed of 12 months closed custody and 6 months community supervision to be followed by 12 months of probation.

[55] Mr. Jacula on behalf of Q.W. submitted the appropriate sentence was six to nine months open custody less pre-trial custody credit and some additional credit for Q.W.’s stringent bail conditions, which included house arrest, to be followed by 2 years probation.

[56] Mr. Stubbs on behalf of T.C. submitted the appropriate sentence was six months open custody less pre-trial custody credit and some additional credit for Q.W.’s stringent bail conditions, which included house arrest, to be followed by probation.

Sentence Imposed

[57] Sentencing is a highly individualized process that is dependent on the unique facts surrounding the offence and offender. No two cases are identical and there are often significant differences between the circumstances of individual cases.

[58] The primary issue to be determined is not whether a custodial sentence is required in this case to meet the principles and purposes of the YCJA, rather, the issue is the length and nature (closed or open) of the custodial sentence. Ms. Thompson emphasized the gravity of the offence and moral blameworthiness of each of the young persons in terms of their conduct in submitting the only appropriate sentence was a custodial sentence. This was recognized by defence counsel, however, both counsel focused almost exclusively on the fact both Q.W. and T.C. were first offenders, had the support of their families, had pleaded guilty and accepted responsibility for their conduct and had pro-social goals respecting school and employment.

[59] The seriousness of the offence and the degree of responsibility of the young person are also essential in determining the ability of a sentence to hold a young person accountable. Accordingly, an assessment of the seriousness of the offences and Q.W.'s and T.C.’s moral culpability are essential to establishing the upper limit of a proportionate sentence and to calculating the sentence that is necessary to hold them accountable. Having regard to the intentional risk-taking by Q.W., and T.C., the role that they played in the offences, the consequential harm caused to the victims of the robberies and the normative character of their conduct, it is my view that a proportionate sentence in this case must include a term of custody and community supervision to be followed by a period of probation. On the facts as I have found them the need to hold Q.W. and T.C. accountable is great and a non-custodial sentence would not be appropriate and fit, as it would not hold them accountable, would not reflect properly the principle of proportionality or reflect the necessary denunciation. All counsel agree with this view and their disagreement has to do with the appropriate length and nature of that custodial sentence.

[60] The Ontario Court of Appeal has held in cases with circumstances similar to this case that a non-custodial sentence is not a fit sentence, and have imposed custodial sentences of varying lengths, from 6 to 24 months of custody and supervision (see R. v. J.S., supra, at para. 49 and R. v. K.L., [2009] O.J. No. 3252 (C.A.), at paras. 8-10).

[61] Ms. Thompson provided me with three cases, which she conceded were more serious than the circumstances of Q.W.’s and T.C.’s cases.

1. R. v. I. (M.), [2010] O.J. No. 5900 (OCJ, Maisonneuve J. (as she then was)): This was a case of two bank robberies with guns, involving gratuitous violence, where a teller was pistol-whipped by a co-accused. Mr. I., age 16, had a youth record and spent the equivalent of pre-trial credit of 17 months and 9 days (519 days or 17.3 months). There were mitigating circumstances to be considered and as a result, an appropriate sentence would be 30 months (900 days) less pre-trial credit leaving a further sentence of 254 days (8.5 months) in closed custody and 127 days (4.2 months) of community supervision, to be followed by 6 months of probation.

2. R. v. N. (T.), [2011] O.J. No. 2571 (OCJ Bloomenfeld J.): 15 year old youth involved in two bank robberies where he told tellers he had a gun and two robberies of taxi drivers. No youth record. Youth spent 8 months of pre-trial credit, he was sentenced to further sentence of 8 months open custody and four months community supervision followed by 12 months’ probation.

3. R. v. T. (I.), 2009 ONCJ 573 (Nicholas J. OCJ): Youth robbed three banks, on two separate days and 7 weeks apart. One robbery deemed to be “serious violent offence.” Mr. T. had youth record for non-violent offences. Sentenced to 14 months (or 426 days) less pre-trial credit (208.5 days) leaving 144 days of custody (44 days to be served in closed custody and a 100 days in open custody) and 72 days of community supervision followed by two years of probation.

[62] Mr. Stubbs on behalf of T.C. provided a casebook with a number of decisions including R. v. T.(I.), supra. In addition, I am discussing the following cases as being somewhat similar to the bank robberies Q.W. and T.C. were involved in:

1. R. v. S.(H.), [2014] O.J. No. (C.A.): the young person was charged with possession of a weapon for purpose of robbery and armed robbery. The complainant was robbed at gunpoint and the accused young person drove the perpetrator who had the gun and committed the robbery. The Court of Appeal upheld the nine month sentence, six months’ secure custody and three months’ community supervision followed by 12 months probation and indicated the trial judge did consider alternatives to custody as required by the YCJA.

2. R. v. B.(L.), [2008] O.J. No. 1685 (C.A.): 16 year old youth with no prior record. Robbery of convenience store with two other youth where threats were made with imitation firearm. Guilty plea entered 18 months after release on restrictive bail conditions. Sentenced 12 months secure custody, six months of community supervision and one year probation. Sentencing judge did not properly consider s. 24.1(4) of the YCJA respecting the “least degree of containment and restraint.” In this case the young person, while on release and afterwards while on bail pending appeal, had effectively turned his life around, shown sincere remorse, excelled in his studies. He was the father of a child and was acting responsibly toward the child. Court of Appeal held very serious crime requiring sentence that reflected twin principles of youth sentencing of accountability and rehabilitation. Court found no purpose in returning young person to custody setting and varied the custodial portion of the sentence to time served of fifteen weeks and one day, followed by six months community supervision, followed by 12 months probation.

3. R. v. O. (J.), [2009] O.J. No. 2041 (OCJ, Nicholas J.): 16 year old youth, first offender drove getaway vehicle, three adult co-accused (not arrested) committed robbery of bank. Bank employees and customers assaulted and threatened with knives and handgun. Guilty plea. 40 days secure custody and 20 days community supervision in addition to time served (108 days of pre-trial credit) followed by 18 months probation.

4. R. v. J.W.E., [2003] O.J. No. 5998 (OCJ, Griffiths J.): Guilty plea by 15 year old young person to charges of fail to comply, use of firearm in robbery of convenience store and possession of prohibited weapon (sawed off shotgun) while under firearms prohibition. Sentence of 12months, four months closed custody, four months open custody and four months community supervision, followed by six months probation. Young person had made real progress and had got off drugs, changed people hanging out with. Co-operated with police and told them where gun was located.

[63] I found a number of relevant decisions during the preparation of my reasons for sentence.

1. R. v. J.S., supra, (Ont. C.A.): Youth first offender after a trial on charge of robbery involving a home invasion where he was armed with a machete and must have known co-perpetrator armed with real or imitation shotgun. Court of Appeal held only a custodial sentence would properly hold young person accountable for his conduct and reflect the principle of proportionality in the YCJA. Trial judge imposed two year sentence, composed of sixteen months’ custody and eight months’ community supervision, on top of 90 days credit for pre-trial custody. Court of Appeal varied sentence to one of fifteen months, consisting of six months’ secure and four months’ open custody followed by five months’ community supervision on top of three months pre-trial credit for total sentence of eighteen months. Youth had turned himself around, supportive family, no problems while on bail pending trial and appeal, completed all high school credits while at Brookside Youth Facility and gainfully employed. Court held all of his progress demonstrates his potential for rehabilitation ands reintegration into society. The Court of Appeal emphasized that each case involving a young person must be decided on an individual basis.

2. R. v. M.N., [2013] O.J. No. 2777 (OCJ, Borenstein J.): Young person with no youth record pleaded guilty to robbing spa with imitation handgun. He was sentenced to six months (four months secure custody and two months community supervision) in addition to seven and three quarter months of pre-trial custody (total sentence: 13 ¾ months), followed by one year probation. Youth had opportunity to complete high school but did not and little insight or progress had been made by the youth since offence was committed.

3. R. v. A.G., [2012] O.J. No. 5836 (OCJ, Murray J.), a 17-year-old youth with a prior criminal record held an imitation firearm during a violent home invasion. That youth participated in the beating of one of the victims. He was found guilty of robbery, theft, use of an imitation firearm and two counts of failing to comply with house arrest. He was 19 years old at the time of sentencing. He had a prior record for assault, failure to appear, failure to comply with a recognizance, trafficking and possession of a controlled substance, possession of property obtained by crime and a further failure to comply with a recognizance. He was sentenced to 24 months of custody and supervision and probation.

4. R. v. M.C., [2011] O.J. No. 4268 (OCJ, Tuck-Jackson J.), a youth who was just shy of 16 years old committed three robberies using imitation handguns. The robberies were committed over two days. M.C. was the youth but adults were also committing those offences. Unlike Mr. M.N., M.C. had a very troubled family life. The Court found the robberies were motivated by M.C.'s desire for food. The victims were assaulted, though not by M.C. M.C. did not possess the imitation firearm himself though he was a party to these offences. M.C. had 10.5 months of actual pre-trial custody and was given credit for the equivalent of almost 16 months of pre-trial custody. Again, he was under 16 years at the time. He was sentenced to an additional three months of custody and supervision (total sentence 19 months) followed by 17 months' probation.

5. R. v. M.A., [2019] O.J. No. 5363 (OCJ, O’Marra J.): Guilty plea by young person, first offender involved in robbery of aromatherapy spa and marihuana dispensary with three other persons. K.O. was leader and was armed with a handgun. While M.A. was upstairs looking for money, K.O. fired the handgun, striking the owner in his thigh with a bullet. Everyone fled scene. Later M.A. arrested and provided inculpatory statement and identified K.O. as shooter. Crown sought 12 to 15 month sentence less in excess of 8 ½ months (257 days) pre-trial custody followed by two years’ probation and defence sought time serve sentence with two years’ probation. Sentence imposed time served and two years’ probation.

[64] An additional consideration in this case is the issue of what credit can be given for the year Q.W. was on a house arrest release order and T.C. was on a release order, which only had a curfew, which in my view does not qualify for the Downes credit. Q.W. was on a very restrictive house arrest release order from March 22, 2019 until the present time. The house arrest bail for Q.W. was more restrictive than a conditional sentence in my view, which in my view is more difficult for a young person. In R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 205 C.C.C. (3d) 488 (Ont. C.A.), Rosenberg, J.A. held that “time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance.” (See para. 33)

Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditional sentence under s. 742.1 of the Criminal Code. (See para. 29)

Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. In the end, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge. That factor must be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a given case. (See para. 36)

[65] The Crown conceded that R. v. Downes had application to this case. In my view the appropriate credit for the approximately 12 months of stringent and restrictive bail conditions and the pre-trial custody credit (12 days) in respect of Q.W. is 3 months. There is no formula for determining an amount of credit to affix for stringent bail conditions pursuant to the principle in Downes.

[66] In the case of T.C., he was released on a surety bail with a curfew on these charges and I would reduce his sentence by only the 18 days of pre-trial custody credit for the 12 days of pre-trial custody he served before being released on bail.

[67] As I have indicated above a custodial sentence is required in this case for both young persons. A non-custodial sentence would certainly aid Q.W. and T.C. in their rehabilitation and reintegration in society and be less restrictive on their liberty and it is for this reason I am not acceding to the Crown’s sentencing position. It is my view there are no alternatives to custody that would be reasonable in the circumstances of this case and would be in accordance with the sentencing principles set out in s. 38 of the YCJA. However, as indicated in R. v. J.S., supra, at para. 51, “accountability and meaningful consequences” for Q.W. and T.C. “as well as [their] rehabilitation and reintegration, inform the principles and the crafting of a disposition that will contribute to the long-term protection of society.” Further, the sentencing principles in ss. 3(1)(a)(i) and 38(2)(c) direct that any sentence imposed must be proportionate to the seriousness of the offence and the degree and responsibility of the young person. As I have discussed above the circumstances surrounding the planned and deliberate nature of these bank robberies, the monies taken and not recovered, and the continuing significant traumatic impact on the victims require a custodial sentence.

[68] It is my view that the difference in the sentences to be imposed respecting Q.W. and T.C. should not be as significant as the submissions expressed by counsel. This is not a situation where T.C. should receive a sentence half the length of Q.W.’s sentence because he was involved in only two bank robberies instead of four bank robberies. The cases referred to above provide for a range of sentence between 9 and 24 months where there is only one robbery committed.

[69] In all of the circumstances of this case it is my view an appropriate and proportionate sentence for Q.W. would be 18 months less the 3 months credit I have assessed for pre-trial custody credit and Downes credit, leaving a sentence of 15 months, broken down into 10 months of open custody and 5 months of community supervision to be followed by 12 months of probation.

[70] In all of the circumstances of this case it is my view an appropriate and proportionate sentence for T.C. would be 13 months less the 18 days of credit I have assessed for pre-trial custody credit, leaving a sentence of 12 months and 12 days, broken down into 8 months and eight days of open custody and 4 months and 4 days of community supervision to be followed by 12 months of probation.

[71] I will hear submissions from counsel as to what terms and conditions should be imposed under the community supervision and probation.

Released: March 13, 2020

Signed: Justice Peter C. West