Court File and Parties

ONTARIO COURT OF JUSTICE DATE: March 18, 2021 COURT FILE No.: 19-10421

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MASON IRELAND

Before: Justice G. Orsini Reasons for Sentence released on: March 18, 2021

Counsel: M. Gardiner, for the Crown C. Demelo, for the defendant Mason Ireland

Orsini J.:

Introduction

[1] On December 2, 2020, Mason Ireland pled guilty to robbery contrary to section 343(a) of the Criminal Code of Canada. He is now before the court for sentencing.

[2] In addition to the general principles of sentencing, the court has been asked to consider the following issues in arriving at a fit sentence: (i) Mr. Ireland’s circumstances as an Indigenous person, pursuant to section 718.2(e) of the Criminal Code; (ii) credit for time spent on bail under stringent conditions pursuant to R v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.), 2006 ONCA 3957; (iii) enhanced credit for time spent in custody under circumstances related to the current COVID-19 pandemic, pursuant to the decision of R v. Duncan, 2016 ONCA 754; (iv) a fine in lieu of forfeiture with an additional period of custody in default of payment, pursuant to section 462.37 of the Code.

The Circumstances of the Offences

[3] The circumstances of the offence were outlined in an Agreed Statement of Fact.

[4] On Tuesday March 19, 2019, at approximately 6:25 p.m., Mr. Ireland and another male entered Gordon’s Gold Jewelry. Mr. Ireland was carrying a large duffle bag while his co-accused was carrying a sledgehammer. Both men were wearing masks. They had just exited from a stolen vehicle parked out front of the store which was being driven by a third individual.

[5] They immediately yelled “get down” and began smashing display cases. They targeted a “Hearts on Fire” display of diamonds. The store’s owners, Mr. and Mrs. Bock, as well as an employee and one female customer were in the store at the time. The entire incident was captured on the store’s video surveillance cameras.

[6] Both men fled the store one minute later in response to the beeping horn of the awaiting vehicle. They re-entered the vehicle which took off at a high rate of speed. They drove to another location where they entered another awaiting vehicle driven by a fourth individual who was the subject police surveillance at the time.

[7] Investigation quickly led police to a residence on the Oneida Settlement where, at approximately 6:55 p.m. that same evening, two males matching the description of the robbers were seen fleeing from a small fire located behind the home. Various items of clothing were being burned in the fire. Two orange handled sledgehammers were located in the area along with a duffle bag matching the description of the one seen in video surveillance. The bag contained glass fragments and a blue neoprene mask.

[8] Mr. Ireland was arrested minutes later after K9 tracking dogs located him and two other males attempting to enter the Thames River a short distance away.

[9] The following day, police found the stolen vehicle used in the robbery together with Mr. Ireland’s cell phone located in the rear pocket of the driver’s seat. The vehicle was located approximately 1.3 kms from the jewelry store.

[10] A subsequent search of Mr. Ireland’s cell phone showed the following: (i) numerous internet searches related to Gordon’s Gold on February 14th, 2019 and March 19th, 2019; (ii) a note from February 14, 2019 which states, “check doors-2 sets-pull, check glass thickness, ask about sections, check for keys, number of employees, time of day, number of customers”; (iii) a google search history from February 25, 2019 of the following terms- “jewellery display case security access”, “glass jewellery display case”, “glass jewellery display case with protective film”, “laminated glass display”, “safety laminated glass” and “smash proof jewellery display”; (iv) 20 Google searches of the term “jewellery heist” on March 7, 2019; (v) a search of on March 7, 2019 of “where do drugs and money go” and “where do drugs and money go after being confiscated”.

[11] The value of the stolen jewellery is estimated to be $530,545. None of it has been recovered.

[12] This was not the first time Mr. Ireland had attended Gordon’s Gold. He and an unknown female had previously attended the store on February 15, 2019 at which time one of the owners assisted them in compiling a “wish list” of Hearts on Fire diamonds.

The Victim Impact

[13] Victim Impact Statements were submitted by the store owners as well as the employee present at the time of the robbery.

[14] Understandably, they were traumatized by what occurred and continue to suffer the emotional impact of being robbed. They experience feelings of anxiety and insecurity, a heightened sense of awareness and being easily startled. As indicated by the store’s owners, “much of the joy we had in building this business is lost. We don’t understand how someone can do this, destroying so much.”

The Circumstances of Mr. Ireland

[15] Mr. Ireland is a 27-year-old first offender whose personal circumstances were outlined in a Gladue Report and a Pre-Sentence Report (PSR) prepared in connection with this matter.

[16] Although he was raised in the City of London, he and his mother are registered members of the Chippewa of the Thames First Nation. His father is a member of the adjacent Oneida Nation of the Thames Settlement. He has an older sister from his mother’s previous relationship as well as two older brothers from his father’s previous relationship.

[17] There are conflicting reports of residential schooling in Mr. Ireland’s family. The Gladue Report indicates that his mother and grandparents attended residential school. Counsel for Mr. Ireland acknowledges that this is incorrect and that the PSR correctly states that it was his maternal great grandmothers and one of his paternal great grandmothers that attended residential schools.

[18] Mr. Ireland’s mother indicated that both of her parents had a rough life, that they “drank and fought” which was difficult for her growing up. She attributed this to the impact her grandmothers residential schooling had on her own mother.

[19] His father indicated that he was raised by his mother and a stepfather who he described as a violent alcoholic who physically abused him. The reports are unclear as to whether the stepfather was of Indigenous heritage and what impact residential schooling had on his own mother’s upbringing.

[20] Both of Mr. Ireland’s parents suffered from an addiction to alcohol. Although his mother is now sober, his father is a self-described “high functioning” alcoholic.

[21] Mr. Ireland’s older sister acknowledged that she was a mother figure to the offender given she was eight years older and their parents worked a lot. She indicated there was a lot of drinking and partying in the home until the offender was approximately 9 years of age and that although neither she or the offender were exposed to domestic violence or physically abused themselves, they witnessed a lot of violence by others who would fight in their home. This was inconsistent with the information provided by her father who admitted to striking his wife resulting in a black eye.

[22] Mr. Ireland confirms that he and his sister grew up around a lot of alcoholism. He confirmed he was exposed to domestic violence as well as physical and emotional abuse. He acknowledged that his older sister acted as a parent to him during his parents drinking years. He recounted how his parents separated when he was 17 and that he left home at the age of 19.

[23] He ultimately left school at the age of 17 when his first daughter was born. He shared a 10-year relationship with the child’s mother which ended shortly after being charged with the offence before the court. He has since entered into another relationship which resulted in the birth of his son while he was in custody.

[24] As a student, he described experiences of bullying and discrimination due to his Indigenous heritage. While he laments the fact that he was not able to attend school on the Reserve where he would have “fit in” better, he says he was “glad” that he did not grow up on the Reserve where people “got into more trouble”.

[25] At the age of 24, Mr. Ireland was prescribed Cipralex for anxiety and depression. During that same year, he went off his medication and ultimately admitted himself to a hospital following a suicide attempt. He continues to take medication for his mental health difficulties while incarcerated and presently reports no suicidal concerns.

[26] Although Mr. Ireland has maintained periods of employment through out his adult life, they have generally been for short periods of duration. He attributes this to having issues with authority. He says he does not like being told what to do. As indicated in the Pre-Sentence Report, “He further suggested that this may come from being yelled at when he was young and suggested that this has impacted his behaviour in school, in his employment and while in jail”.

[27] Mr. Ireland reports that he has never had a problem with alcohol or substance abuse. This was confirmed by collateral sources.

[28] He attributes the offence to a falling business venture, poor finances and the fact that his partner wanted a second child. He told the author of the Pre-Sentence Report that he committed the offence to put him and his family in a better position.

[29] I note that Mr. Ireland’s failing business venture was in fact his own registered jewelry business where he designed and sold jewelry. He indicated that he would like to return to that business at some point in time.

[30] By all accounts, Mr. Ireland is an excellent father. Although he has yet to meet his newborn son, his previous partner, Ms. Tran, confirmed that while she was upgrading her education, Mr. Ireland was their daughter’s primary care giver. Prior to his re-incarceration and while on bail, he continued to maintain a positive and healthy relationship with both his daughter and Ms. Tran.

[31] Finally, those who know Mr. Ireland best are unanimous in their assessment that the present offence is entirely out of character. His parents, older sister, past and present partners and close associates have all expressed shock at his involvement.

[32] For his part, Mr. Ireland has expressed remorse for his involvement in the offence. He takes full responsibility for his actions and blames only himself.

Position of the Parties

[33] The Crown seeks a custodial sentence of 4-5 years less credit for presentence custody on a 1.5-1 basis. Mr. Ireland has 275 actual days of pre-sentence custody which, on a 1.5-1 basis, equates to 385 days.

[34] In addition, the Crown seeks a fine in lieu of forfeiture. Given that Mr. Ireland was one of four individuals involved in the robbery, the Crown seeks a fine in the amount of $162,500.00 which is one-quarter of the total loss. The Crown seeks the minimum 2 years jail in default of payment.

[35] The defence initially argued for a maximum conditional sentence of 2 years in addition to enhanced credit for pre-sentence custody served during the present COVID-19 pandemic. The defence also submitted that Mr. Ireland should receive additional credit for time spent on restrictive terms of bail.

[36] When it was pointed out that a conditional sentence was unavailable where a total sentence, including credit for pre-sentence custody, exceeded 2 years, the defence amended its position to time served plus an 11 months conditional sentence.

[37] With respect to enhanced credit for pre-sentence custody and time spent on restrictive bail, the defence takes the position that I should only take this into account if I find that a sentence outside of the conditional sentence range is imposed.

[38] With respect to the imposition of a fine in lieu of forfeiture, the defence says that it would be more appropriate to make a free-standing restitution order given Mr. Ireland’s prospects for rehabilitation.

Sentencing Principles

[39] The fundamental purposes of sentencing are set out in section 718 of the Criminal Code. They include denouncing unlawful conduct and the harm caused to victims or to the community, providing reparations for that harm, deterring the offender and other persons from engaging in such conduct, separating offenders from society, where necessary, assisting in their rehabilitation, and promoting a sense of responsibility in offenders, and acknowledgement of the harm they have done to victims or to the community.

[40] I am also guided by the principle of proportionality set out in section 718.2 and the need for any sentence to reflect the gravity of the offence and the degree of responsibility of the offender having regard to the relevant aggravating and mitigating circumstances related to each. Proportionality also requires that I impose a sentence that is similar to sentences imposed on similar offenders for similar offences.

[41] Given the nature of the offence, both counsel agree that denunciation and general deterrence are the paramount sentencing objectives.

[42] Since Mr. Ireland is a first offender, the principle of restraint must also be considered. However, it is now well established that the need for denunciation and deterrence may take precedence in cases involving first offenders where the principle of restraint would otherwise mitigate in favour of a non-custodial sentence. As stated by the Court of Appeal in R. v. Reesor, 2019 ONCA 901, at para. 8:

The principle of restraint, like all principles of sentencing, operates in conjunction with other principles that often pull in a different direction. For offences like this, particularly committed in the context of domestic violence, the restraint principle must, as the trial judge noted, yield, to a large degree, to concerns associated with deterrence, denunciation and protection of the victim. A significant penitentiary sentence was necessary in this case.

Gladue Principles

[43] Pursuant to section 718.2(e), I must also consider all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victims in this case and the community, with particular attention to Mr. Ireland’s circumstances as an Indigenous offender.

[44] As indicated in the Supreme Court of Canada’s decision in R v. Gladue, [1999] 1 S.C.R. 688, 1999 SCC 679, section 718.2(e) requires the court to adopt a different approach to the sentencing of Indigenous offenders. The Court must consider the following: (i) the extent to which factors affecting Indigenous people in Canadian society have impacted upon Mr. Ireland’s moral blameworthiness; and (ii) the types of sentencing procedures and sanctions that may be appropriate in the circumstances for Mr. Ireland because of his Indigenous heritage and connection.

[45] This different approach, however, does not necessarily mandate a different result. As indicated in Gladue, at para. 79: "[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing". See also R v. Wells, [2000] 1 S.C.R. 207, 2000 SCC 10, at para. 44.

[46] I also remind myself of the problems caused by unwarranted emphasis on the above-noted passage, something that was addressed by the Supreme Court of Canada in R. v. Ipeelee, [2012] 1 S.C.R. 433, 2012 SCC 13; see also R. v. Kakekagamick (2006), 81 O.R. (3d) 664 (C.A.), 2006 ONCA 28549, at para. 31, leave to appeal refused, [2007] S.C.C.A. No. 34. Most recently by the Ontario Court of Appeal in R v. Martin, 2018 ONCA 969, [2018] O.J. No. 6591 and R v. Altiman, 2019 ONCA 511, [2019] O.J. No. 3216.

[47] As indicated by the Court in Altiman at paragraph 85, “The key point is that the Gladue analysis conducted by a sentencing judge must focus on the circumstances of the offender that may bear on the offender's moral culpability for the offence. A sentencing judge cannot let the seriousness of the offence deflect the court away from that focus.”

[48] With respect to the degree to which Gladue factors may work to diminish an offender’s moral blameworthiness, the following paragraphs from the Court of Appeal’s more recent decision in R v. Brown, 2020 ONCA 657 are instructive:

50 In determining the extent to which Gladue factors bear on an offender's culpability, the court must consider whether the offender has "lift[ed] his life circumstances and Aboriginal status from the general to the specific": F.H.L., at para. 45. Put another way, the sentencing judge must determine the degree to which unique circumstances related to the offender's background played a part in bringing that offender before the court. This is necessarily a case-specific inquiry.

51 The extent to which an Indigenous offender's unique circumstances mitigate moral culpability is a matter of degree. Here, the appellant's potential loss of a father figure comes to bear on his blameworthiness in that it may have affected his positive development in childhood and adolescence. In that sense, I agree with the sentencing judge's finding that the appellant can be seen as a "recipient of the trickle-down effects of the colonization referred to [in] R. v Gladue" .

Enhanced “Duncan” Credit

[49] Given the current global COVID-19 pandemic, counsel for Mr. Ireland seeks enhanced credit for pre-sentence custody due the harsh conditions under which it has been served if I find a sentence outside of the conditional sentence range is appropriate.

[50] As indicated by our Court of Appeal in R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255, it is within the discretion of the court to assign additional credit for pre-sentence custody beyond the traditional 1.5-1 credit set out in section 719(3.1) provided there is some evidence that particularly harsh conditions have negatively impacted the offender.

[51] In the subsequent decision in R. v. Rajmoolie, 2020 ONCA 791, at paras. 14-15, the Court confirmed that its previous decision in Duncan did not “mandate a second level of credit for pre-sentence custody which was entirely within the discretion of the sentencing judge”.

“Downes” Credit

[52] Pursuant to the Court of Appeal decision in R v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.), 2006 ONCA 3957 time spent under stringent bail conditions can also be considered in determining the length of sentence. Again, the amount of credit, if any, to be apportioned for stringent bail conditions is entirely within the discretion of the sentencing judge and there is no specific formula to be applied.

[53] The factors to be considered include the stringency of the bail conditions, the length of time those conditions were in effect and the impact they had on the offender’s liberty, including his ability to carry on his normal daily activities such as employment and normal relationships. The onus is on the offender to provide evidence of this impact on a balance of probabilities. Downes, at para. 37.

Fine in Lieu

[54] Robbery is a designated offence pursuant to section 487.04 of the Criminal Code.

[55] Section 462.37(1) provides that upon conviction for a designated offence, the court “shall” make a forfeiture order where it is satisfied on a balance of probabilities that the offence was committed in relation to any property that constitutes proceeds of crime.

[56] Section 462.37(3) provides that the court “may” order a fine in lieu of forfeiture in certain defined circumstances, including where any property of an offender “cannot, on the exercise of due diligence, be located” or where it “has been transferred to a third party”.

[57] As indicated in R v. Dwyer (2013), 296 C.C.C. (3d) 193 (Ont. C.A.), 2013 ONCA 34, the phrase “any property of an offender” in section 462.37(3) includes any property that was in the offender’s possession. This would include the jewellery in this case.

[58] R v. Lavigne, [2006] 1 S.C.R. 392, 2006 SCC 10 is the leading case on the interpretation and application of the fine in lieu provisions of the Criminal Code. While the decision to impose a fine in lieu is discretionary, an offender’s ability to pay should only be considered in determining the time within which the funds are to be paid and should not to be considered in determining whether to make the order or in its amount. As indicated at Lavigne, at paras. 45 and following, ability to pay will come into play when the time provided for payment of the fine has expired and prior to the issuance of a warrant of committal under section 734.7(1)(b).

[59] Likewise, it would be an error to decline to make such an order due to the potential impact on an offender’s rehabilitative prospects. R v. Angelis (2016), 340 C.C.C. (3d) 477 (Ont. C.A.), 2016 ONCA 675 Leave to appeal to the S.C.C. refused at [2016] S.C.C.A. 484.

[60] As indicated by the Supreme Court in Lavigne, at paras. 16 and 18,

16 Parliament's intention in enacting the forfeiture provisions was to give teeth to the general sentencing provisions. While the purpose of the latter provisions is to punish an offender for committing a particular offence, the objective of forfeiture is rather to deprive the offender and the criminal organization of the proceeds of their crime and to deter them from committing crimes in the future. The severity and broad scope of the provisions suggest that Parliament is seeking to avert crime by showing that the proceeds of crime themselves, or the equivalent thereof, may be forfeited

18 Forfeiture of the proceeds of crime is not always practicable, however. The proceeds of a crime may have been used, transferred or transformed, or may simply be impossible to find. To ensure that the proceeds of a crime do not indirectly benefit those who committed it, Parliament has provided that the court may impose a fine instead of forfeiture of the proceeds of crime. It is therefore from the perspective of the objective of the forfeiture provisions that the fine instead of forfeiture must be considered.

[61] The Court went further in finding that the discretion conferred by the word “may” in section 462.37(3) is circumscribed by these purposes. In short, the word “may” does not confer broad discretion and it would be an error to fall into the “trap of literal interpretation” Lavigne, at para. 21.

Analysis

[62] I consider the following mitigating factors: (a) Mr. Ireland entered a plea of guilty. This is recognised as a traditional sign of remorse and I accept that it is genuine on his part; (b) Mr. Ireland has no prior criminal record; (c) Despite a difficult upbringing, he has made considerable efforts at maintaining employment and supporting his family. He has avoided addictions to alcohol and illicit substances which often plague individuals with similar backgrounds. By all accounts he has been an otherwise excellent father to his 11-year-old daughter. These factors speak to his character and determination, factors that will no doubt assist him in the future; (d) his life and current circumstances reflect the intergenerational trauma resulting from Canada’s Residential School System. The impact can be traced from his maternal great grandmothers and his paternal great grandmother who were residential school survivors.

[63] Regarding this latter point, the impact of the residential school system on subsequent generations has been well documented. It has led to increased rates of substance abuse, mental health problems, criminal activity, mortality/suicide, poverty, family breakdown and community disintegration. All of this has contributed to cycles of parenting deficiencies. As indicated in the Royal Commission on Indigenous People, Part Two: False Assumptions and Failed Relationship, Chapter 10 – Residential Schools, Discipline and Abuse, the abuse and neglect suffered by residential school survivors left its mark on their lives and the lives of their descendants whose families have been characterized by further abuse and neglect.

[64] I accept that these factors contributed to the upbringing of Mr. Ireland’s parents which in turn impacted his own upbringing. These successive generations of parenting deficiencies lead to an unstable home life marked by alcohol abuse by both parents and what has been described as a party like atmospheres within the home. As a result, Mr. Ireland turned to his older sister as a substitute parent. His parents separated when he was 17 years old. In this context, it is not altogether surprising that he became a father and left school at that time. The discrimination he experienced as a student no doubt contributed to this decision.

[65] I am also satisfied that these same parenting deficiencies contributed to Mr. Ireland’s mental health issues and difficulties with authority. This has resulted in his inability to maintain steady employment for any appreciable length of time. To the extent that this impacted his ability to support his family and resulted in him turning to the offending behaviour in question, it is a factor that impacts his moral blameworthiness.

[66] At the same time, the degree to which Gladue factors have impacted Mr. Ireland is not as significant as this court had observed in other cases. He does not have a prior record. He does not suffer from any addictions. Gladue factors do not appear to have directly impacted his ability to parent his own child. He is described as an excellent father. As he indicated in the Pre-Sentence Report, his parents were consistently employed, and his physical needs were met. Poverty does not appear to have been an issue.

[67] The fact remains that Mr. Ireland committed a serious violent offence on a vulnerable victim for purely financial reasons and not as a result of any addiction issues. The offence was not spontaneous and involved a considerable degree of planning. He was a direct participant in the offence.

[68] Accordingly, I find Mr. Ireland’s moral blameworthiness to be high although not as high as it otherwise would be in the absence of the Gladue factors noted above.

[69] I also consider the following aggravating factors: (a) as evidenced by the phone records, the offence involved a considerable degree of planning and premeditation. Mr. Ireland researched the type of robbery he would be committing and conducted a reconnaissance mission by visiting the jewelry store on a previous occasion when he posed as a customer to look at the diamond collection that he would subsequently target. He was masked and made use of not one but two separate “getaway” vehicles. I am satisfied that this was done to avoid detection; (b) this was a brazen robbery committed on a vulnerable victim. Jewellery stores are particularly vulnerable given the value of the items being sold and the fact that such operations tend to be small in nature with limited staff. That was certainly the case here; (c) the offence was motivated by greed as opposed to any addiction issues; and (d) The value of the items stolen was in excess of $500,000.00. To date, there has been no recovery of the items despite the fact that Mr. Ireland was apprehended within an hour of the offence;

[70] Counsel have provided me with several cases in support of the range of sentences being suggested. At the end of the day, while each case is dependant on its own facts, they do offer some guidance.

[71] Sentencing for robberies of jewelry stores involving substantial amounts have generally attracted significant penitentiary sentences even for first offenders. Given the significant value of the merchandise involved and the vulnerability to offences of this nature, our courts have recognised the need for sentences that significantly denounce and deter such offences.

[72] In R v. Nouri, 2015 ONSC 116, the offender received a sentence of 6 years for orchestrating a jewellery store robbery, driving the principles to and from the robbery and sharing in the subsequent division of the proceeds. Approximately $700,000.00 in merchandise was taken. It is unclear if any recovery was made.

[73] While the offence in Nouri involved the use of an imitation firearm as opposed to a sledgehammer, Ms. Nouri was convicted as an aider under section 21(1)(b). Unlike Mr. Ireland, she was not a direct participant in the robbery itself. At the same time, Ms. Nouri was convicted after trial. Mr. Ireland plead guilty following his pre-liminary hearing.

[74] In R v. Hartwell, 2015 ONCJ 189, the offender was sentenced to 6 years for his involvement in the armed robbery of an armoured car facility after receiving inside information from his brother who was an employee. He and his co-accused made off with in excess of $700,000.00. Although partial recovery of the money was made, the court noted that well over half a million dollars was outstanding.

[75] Like Mr. Ireland, Mr. Hartwell had no prior criminal record and plead guilty following his preliminary hearing. However, the offence involved considerably more violence including the use of handguns. One security guard was tied up and threatened while another was struck in the face with the gun.

[76] More recently in R v Lewin, 2016 ONSC 7400, [2016] O.J. No. 6141, Justice Fuerst sentenced the offender to 3 years custody for his involvement in a jewelry store robbery with the use of a handgun and a crowbar. Although all of the property was recovered and the court found the offender was “not the mastermind behind the robbery”, like Mr. Ireland, Mr. Lewin had no prior criminal record or history of drug or alcohol abuse and plead guilty following his preliminary hearing. As with Mr. Ireland, Mr. Lewin was motivated to commit the offence due to financial difficulties.

[77] The defence provided the court with the decision of R. v. Panchan, 2013 ONSC 7700, where reformatory sentences were imposed on youthful first offenders who robbed an individual of his car and cell phone after luring him to a particular location and beating him with a metal baton. Although the offenders were convicted after trial, the court specifically noted that the offence did not involve the victimization of vulnerable workers in commercial premises where money is kept. In this regard, the case is distinguishable on its facts from cases involving the robbery of jewelry stores.

[78] I find that the sentencing range of 4-5 years suggested by the Crown to be in keeping with the relevant case law for offences of this nature. Having come to that conclusion, I will now consider to what extent conditions of bail and pre-sentence custody ought to be considered.

[79] Regarding the issue of Downes credit, I decline to give Mr. Ireland any credit for the 453 days he spent on bail. His conditions were not particularly onerous and did not involve any house arrest. Instead, he was bound by a curfew and required to be in his residence between the hours of 9 p.m. and 5 a.m. unless he was in the presence of one of four separate individuals. Leaving aside that this is not a particularly onerous condition, there was no evidence as to what, if any, impact this had on Mr. Ireland apart from the fact that he had to take care of his daughter while his partner attended evening classes or employment.

[80] With respect to additional credit for harsh conditions of pre-sentence custody, different considerations apply.

[81] There is evidence that Mr. Ireland had to be quarantined for 14 days on two separate occasions – once when he initially entered the institution and a second time when he voluntarily surrendered himself within a day of being mistakenly released.

[82] There is evidence that he was subject to various lockdowns due to staff shortages.

[83] Finally, and perhaps most significantly, Mr. Ireland had to be quarantined a third time when he contracted the Covid-19 virus while in custody. He was largely asymptomatic. At the very least, there is no evidence that he had to be hospitalised or otherwise treated for his infection. Nevertheless, I am satisfied that contracting the Covid-19 virus added significant stress to an already stressful jail environment.

[84] The Crown submits that any additional credit should be tempered by the fact that Mr. Ireland was found guilty of two institutional violations. In this regard, the Crown was permitted to file Institutional Reports outlining the allegations. No further evidence was called.

[85] I remind myself that the Crown is required to prove aggravating factors beyond a reasonable doubt. Simply put, in the absence of viva voce evidence in this case, I am unable to satisfy myself beyond a reasonable doubt that Mr. Ireland is guilty of the misconducts in question. The Reports themselves amount to untested allegations.

Disposition

[86] Balancing all these factors, I find that an appropriate sentence is one of four and one-half years in custody. Given the conditions of his pre-sentence detention, I will credit Mr. Ireland with an additional 100 days over and above the 385 days of pre-sentence credit he would normally be entitled to. This equates to time served of 275 days to be reflected as 485 days or 16 months, leaving a remainder of 38 months to serve.

[87] As requested in the Pre-Sentence Report, I am recommending Mr. Ireland be assessed by Correctional Services under their Indigenous Intervention Centre for possible placement in a Healing Lodge, if deemed appropriate.

[88] Given the nature of the offence, there will be a Primary DNA Order under section 487.05(1) as well as a lifetime weapons prohibition under section 109 of the Code.

[89] Finally, with respect to the fine in lieu provisions, while a forfeiture order would be appropriate, I am satisfied that the jewelry or its value cannot otherwise be located with the exercise of due diligence. This was not contested by the defence. Instead, the defence submitted that a fine in lieu of forfeiture would negatively impact Mr. Ireland’s prospects for rehabilitation. As indicated above, this is not a relevant factor.

[90] The fact remains that despite Mr. Ireland’s arrest within an hour of a calculated jewelry store robbery, more than half a million dollars of jewelry remains unrecovered. It is particularly concerning that Mr. Ireland was previously involved in a jewelry business which, according to the Pre-Sentence Report, he would like to return to. I also note that a search of his phone disclosed searches related to “jewelry heist” and “where do drugs and money go”.

[91] In these circumstances, I find it appropriate to order a fine in lieu of forfeiture as a means of ensuring that Mr. Ireland and others who may be tempted to engage in this behaviour will not profit from their crime.

[92] No issue was taken with the amount suggested by the Crown of $162,500.00, which represent one-quarter of the total amount of the loss in this case. Accordingly, in lieu of forfeiture, there will be a fine of $162,500.00 pursuant to section 462.37(3).

[93] I will give Mr. Ireland 4 years within which to make payment of the fine. Pursuant to section 462.37(4)(v), in default of payment, I am imposing the minimum sentence suggested by the Crown of 2 years custody.

[94] Given the period of custody that remains to be served, and considering the above-noted fine order, I will waive the application of the victim fine surcharge.

Released: March 18, 2021 Signed: Justice G. L. Orsini