R. v. Tyndale, 2021 ONCJ 741

Citation: R. v. Tyndale, 2021 ONCJ 741 Date: 2021-12-21 Registry: Toronto Court: Ontario Court of Justice

Between: Her Majesty the Queen — and — Miguel Tyndale

Before: Justice Mara Greene Reasons for Judgement released: December 21, 2021

Counsel: B. Janzen for the Crown R. Handlarski for Mr. Tyndale

Reasons for Judgement

M.B. Greene J.:

[1] On March 9, 2021, at the conclusion of a preliminary inquiry, Mr. Tyndale entered a plea of guilty to the offence of robbery while armed with a weapon. This matter was then adjourned eight months for counsel to prepare materials and legal argument. The sentencing hearing took place in November 2021. Crown counsel seeks a conditional sentence in the range of three months after taking into account nine months of pre-sentence custody (six months credited at 1.5 to 1). Mr. Tyndale take the position that he should not receive any sentence for his offence. Instead he seeks a Stay of Proceedings as a remedy for a breach of his section 7, 9 and 11(e) Charter rights. In the alternative he seeks a suspended sentence and probation.

Factual background

(i) The Offence

[2] On December 26, 2019, Mr. Tyndale and four others robbed Mr. Saba in his residence. A co-accused, Ms. Benmore, attended at Mr. Saba’s residence earlier in the evening as she was known to Mr. Saba. She and another female friend, Ms. Penteado, let Mr. Tyndale and two other men into the unit. One of males, not Mr. Tyndale, was carrying a firearm and demanded that Mr. Saba produce watches from his watch collection. Mr. Saba, fearing for his life, complied with the demand. One of the males told the person with the firearm to shoot him and one male put a towel over Mr. Saba’s head and then punched Mr. Saba in the face. Mr. Saba was punched three times in total. Mr. Tyndale and his co-accused stole a Breitling Watch valued at $18,000.00, a Louis Vuitton handbag with banking cards, credit cards and identification in it, and keys to Mr. Saba’s vehicle. Mr. Saba suffered a laceration to his face, bruising to his head and cuts to his feet from broken glass.

[3] At 11:02 pm on December 26, 2019 Mr. Saba called 911. Mr. Tyndale was arrested at the Delta Chelsea Hotel with his co-accused, Ms. Benmore. He was not found in possession of any of the property stolen from Mr. Saba but Mr. Saba’s credit card was located on a table in the hotel room.

[4] In the early morning hours of December 27, 2019, the police knew that they were charging Mr. Tyndale with the armed robbery of Mr. Saba, nonetheless, Mr. Tyndale was not taken to court that day. He was only transported to the courthouse at 8:30 am the following day, December 28, 2019, some 32 hours after his arrest.

[5] After a preliminary inquiry, Mr. Tyndale pled guilty to one count of robbery with a weapon pursuant to section 343(d) of the Criminal Code.

[6] In an affidavit filed with the court at his sentencing hearing, Mr. Tyndale stated that he did not know that a weapon was going to be used in the robbery. He also denied being personally responsible for the physical acts of violence to Mr. Saba. He does admit that he was a party to the robbery and continued to rob Mr. Saba even after his co-accused took out the firearm.

(ii) Mr. Tyndale

[7] Mr. Tyndale is 25 years old. He was born and raised in Toronto but also spent much of his teen years in Georgia with his Aunt. Mr. Tyndale is an accomplished musician and has managed to support himself through his music by performing and writing music for other artists. Mr. Tyndale appears to be very successful in his chosen profession.

[8] Mr. Tyndale has no criminal record and is very close to his mother, sister and girlfriend. After his arrest on this charge, Mr. Tyndale was released on a bail with his sister as the surety. He had a curfew of 8pm and was required to live with his surety in Toronto. In July 2020, Mr. Tyndale was arrested at 4:50 a.m. in Barrie, Ontario and charged with failing to comply with his release, possession of a firearm and possession of fentanyl for the purpose of trafficking. Mr. Tyndale was denied bail, and remained in custody until January 20, 2021. After his release, the Crown withdrew the gun and drug charges in Barrie. Mr. Tyndale entered a plea of guilty to the fail to comply charge and received an absolute discharge. Since his release, he has been living with family and following the terms of his release order.

Issues and the Law

[9] Mr. Tyndale alleges a host of Charter breaches. The breaches alleged are as follows:

a) that his rights as guaranteed by section 7 and 9 of the Charter were violated when he was not brought to court within 24 hours of his arrest in December 2019.

b) that his rights as guaranteed by section 11(e) of the Charter were violated when he did not have a bail hearing and bail review in a timely fashion after his arrest in July 2020.

c) that his rights as guaranteed by section 11(e) of the Charter were violated when the multiple judicial officers failed to consider section 493.2 of the Criminal Code when they ordered Mr. Tyndale’s detention.

d) that his section 7, 9 and 11(e) rights were violated when the jail failed to release him for thirty hours after he was ordered released from custody by Justice Casullo on January 19, 2021.

[10] Crown counsel conceded that Mr. Tyndale’s rights were violated when he was not brought to court within 24 hours of his arrest in December 2019. He also conceded that Mr. Tyndale’s rights were violated when he was not released from custody on January 19, 2021. Mr. Janzen argued, however that the delays that occurred in Barrie on the new set of charges did not violate Mr. Tyndale’s Charter rights nor do the errors made by the Justices addressing Mr. Tyndale’s bail rise to the level of a Charter breach.

[11] Mr. Tyndale seeks a stay of proceedings as a remedy for the above identified breaches. Crown counsel argued that the appropriate remedy is a sentence reduction.

1. What are the Charter breaches in this case?

(i) The Breach of Section 503 of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

[12] Mr. Tyndale, Mr. Crawford, Mr. Reid and four others were all arrested on December 19, 2019 in relation to the robbery on Mr. Saba. Mr. Tyndale was not brought to court within 24 hours of his arrest. I found in R. v. Crawford, 2021 ONCJ 740, December 14, 2021, that the delay in bringing Mr. Crawford to court was caused by the officer’s mis-understanding of what paperwork had to be completed prior to bringing the accused persons to court. I further found that the officer prioritized his paperwork over Mr. Crawford’s liberty and the requirement that he be brought to court within 24 hours. It was my view that the delay in transporting Mr. Crawford to court was not an attempt to induce a confession or interrogate the accused parties as none of them were interviewed during this time. I see no factual or legal reason to make a different finding in this case. I therefore find that Mr. Tyndale’s rights were violated when the police failed to bring him to court within 24 hours.

(ii) The delay in setting a bail hearing and bail review in Barrie

(a) Factual background

[13] On July 27, 2020, Mr. Tyndale was arrested in Barrie, Ontario. He was in his girlfriend’s vehicle with two other persons. Mr. Tyndale was not driving. According to the synopsis from the arrest, Mr. Tyndale was only identified by the police when they investigated him for public intoxication. During the investigation, the police stopped one of the passenger who was attempting to leave the area with a bag that had been on the roof of the vehicle during the investigation of Mr. Tyndale and the driver. The police searched the bag and found fentanyl, a firearm and money. They also found money on Mr. Tyndale. All three were charged with possession of the firearm and possession for the purpose of trafficking in fentanyl. Mr. Tyndale was also charged with the breach of his release condition.

[14] Mr. Tyndale and his two co-accused were brought to court that day. The Crown asked for a three-day adjournment to conduct further investigation. The request was granted. On July 30, 2020, the matter was adjourned again. According to the transcript, Mr. Tyndale’s bail hearing was going to be lengthy and as such it had to be set as a “long bail hearing” after a pre-hearing conference. Mr. Handlarski, counsel for Mr. Tyndale, attended late for court and was advised of the need for a pre-hearing a conference and that Mr. Tyndale was remanded to August 4, 2020. Mr. Handlarski advised that he would be ready to conduct a bail hearing on August 5 or 6th.

[15] On August 4, 2020, Mr. Handlarski did not attend court. The matter was adjourned to the following day. On August 5, 2020, the court was advised that a pre-hearing had been conducted and that the earliest date the court could offer him was August 10. Mr. Handlarski was not available that day, so the matter was set for August 11, 2020.

[16] The bail hearing did not proceed on August 11, 2020 because Mr. Tyndale had not yet finalized a bail plan and as such Mr. Tyndale was not ready to proceed. He sought and obtained a one-week adjournment. On August 16, 2020, the night before the bail hearing was to commence, Mr. Handlarski emailed Crown counsel a factum and some information about the proposed surety. Crown counsel wrote back to Mr. Handlarski and stated that she would be seeking an adjournment due to the new material just provided.

[17] On August 17, 2020 Mr. Handlarski did not attend court to oppose the Crown’s request for an adjournment. Not surprisingly, the court granted this unopposed request for an adjournment. The matter went over to August 18, 2020 and again counsel did not attend. Mr. Tyndale advised the court that his lawyer wanted this matter to be heard on the Thursday or Friday of that week. The matter went over to August 20, 2020.

[18] On August 20, 2020, Mr. Tyndale’s matter did not get reached so it was adjourned to the next day, August 21, 2020. On that day, the bail hearing started. It went all morning. After the lunch break and after all the evidence was heard, the Justice of the Peace expressed concern that this case was eating up his whole day and he had a host of other cases to attend to. He adjourned the matter for written submissions and a decision. A schedule was set up so that written submission would be filed on the following Monday and a decision would be rendered on August 27, 2020.

[19] On August 27, 2020, Mr. Tyndale was ordered detained.

[20] Mr. Handlarski then took steps to schedule a bail review. He filed his material on September 11. The bail review did not take place until October 5, 2020 as the court could not hear it earlier. After a lengthy bail review, the Justice reserved. Justice Vallee released her decision on October 20, 2020. While errors had been made by the Justice of the Peace that heard the first bail, Justice Vallee nonetheless concluded that Mr. Tyndale had not met his burden and ordered that his dentition continue.

[21] On December 11, 2020, Mr. Handlarski filed another review of Mr. Tyndale’s detention. In January 2021 the Crown advised Mr. Handlarski that she would be consenting to his release. He was ordered released on January 19, 2021.

(b) Legal analysis

[22] Mr. Handlarski, on behalf of his client, argued that the delay in having the first bail hearing and subsequent bail reviews violated his clients right under section 9 and 11(e) of the Charter. It took one full month for Mr. Tyndale’s bail hearing to conclude and similar delays occurred when he attempted to schedule bail reviews. Mr. Handlarski argued that the delay in the case at bar is much like the case of R. v. Simonelli, 2021 ONSC 354, [2021] O.J. No. 190 (SCJ), where Harris J. ordered a stay of proceedings where the accused’s bail hearing was delayed by twelve days.

[23] In my view, the delay in the case at bar is very different from what occurred in Simonelli. First of all, the first adjournment of three days was permissible in law. The Criminal Code specifically allows for the kind of adjournment that took place in Mr. Tyndale’s case. Secondly, while the court could not accommodate this matter for another week, Mr. Tyndale was still not ready to proceed with his bail. Even if earlier dates were available, Mr. Tyndale could not have taken advantage of those dates as he did not have a bail plan. In my view, since Mr. Tyndale was not even ready to proceed during this time frame, I cannot find that they delay from July 27 until August 10 violated his Charter rights. On August 11, Mr. Tyndale then asked for a full week adjournment until August 17, 2020. Again, as this was Mr. Tyndale’s request, I cannot find that the delay from August 10 until August 17 violated his rights.

[24] The matter was adjourned again on August 17, 2020. I agree with Mr. Handlarski that providing advance notice to opposing party, in writing, of your full argument is not a basis to obtain an adjournment. But, the Crown’s request for an adjournment went unopposed. I can hardly fault the Justice of the Peace for granting an adjournment when counsel was not even present to contest the application. Similarly, Mr. Handlarski was not at court on the following date. Mr. Tyndale advised the court that they wanted to hold the hearing later in the week. Again, this appears to be an agreement by all parties to proceed later in the week. In light of the record before me, I cannot find that the delay from August 17 to August 20, 2020 was over the objection of the accused. I therefore cannot find a breach of Mr. Tyndale’s rights from this delay either.

[25] The one-week delay from August 20 until the conclusion of the bail hearing on August 27, is arguably a violation of Mr. Tyndale’s right to reasonable bail as the bail hearing was not completed in a timely fashion. While I do believe that judges do need time to consider their decisions, especially in a case as complex as this one, the remand was not just for a ruling, but for written submissions as the court could not properly accommodate the entire hearing. By the time the bail hearing was heard, Mr. Tyndale had been in custody for 23 days. The bail hearing would have been completed sooner had the Justice of the Peace just heard submissions on the same day. The only reason the court did not, was because it was over booked. I find that these four days of delay so that the court could receive written submissions is a breach of section 11(e) of the Charter.

[26] I do not find that the delay in scheduling the two bail reviews were breaches of the Charter. Mr. Tyndale had a bail hearing, he was detained. While he has a right to review that finding, allowing the court some time to properly schedule matters is not unreasonable. I cannot find that delay in scheduling the reviews rises to a Charter breach.

(iii) Errors in the reasons for judgment at the first bail and the first bail review

[27] Both the Justice of the Peace that heard the first bail hearing and the Justice of the Superior Court that heard the bail review failed to consider section 493.2 of the Criminal Code which requires a justice to “give particular attention to the circumstances of….(b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this part”.

[28] Mr. Tyndale is a young black man. It is well known that young black men are overrepresented in our justice system and our jails. Issues around systemic and overt racism in the justice system have been known for decades. This provision is meant to provide some protection against systemic discrimination and the reality that black men are less likely to be released than others. This provision is not optional. The language is clear. A justice at a bail hearing SHALL pay particular attention to the circumstances of vulnerable and overrepresented persons. I appreciate Mr. Tyndale’s loss of confidence in a system that does not follow its own rules. I am cognizant of the frustration he must feel knowing that those deciding his fate failed to consider his personal circumstances as a young black man living in Toronto. I nonetheless cannot find that an error in reasons for judgments give rise to a Charter violation. The reality is that judges make mistakes sometimes. Our mistakes have real consequences for those that appear before us. But this is why we have appeals and judicial reviews. Moreover, as a provincial court judge, I am not in a position to sit in judgment of a decision rendered by a Superior Court Judge. While the error identified is unfortunate, I cannot find that it has violated Mr. Tyndale’s Charter rights.

(iv) The delay in releasing Mr. Tyndale from the jail

[29] Crown counsel concedes that Mr. Tyndale’s rights as guaranteed by section 7 and 9 of the Charter were violated when he was not released from jail on January 18, 2021. I agree.

[30] On January 18, 2021, Mr. Tyndale was granted bail by Justice Casullo. Despite this clear order, the jail refused to release Mr. Tyndale. The Jail had incorrectly believed that Mr. Tyndale was detained on other charges. As a result, he was detained for 30 hours longer that he should have been. This problem arose directly because the jail did not keep proper records. As a result of their error, Mr. Tyndale was unlawfully incarcerated for 30 hours.

2. What is the Appropriate Remedy?

[31] Counsel for Mr. Tyndale seeks a remedy of a Stay of Proceedings for the Charter breaches in this case. Crown counsel argued that a sentence reduction is the appropriate remedy,

[32] In assessing the appropriate remedy, it is useful to briefly review when a Stay of Proceedings should be granted. The Supreme Court of Canada has consistently stated that a Stay of Proceedings is a remedy that should only be resorted to in the clearest of cases given society’s interest in having matters tried on their merits. In R. v. Babos, [2014] S.C.C. 16, the Supreme Court of Canada summarized the relevant legal principles as they relate to a stay of proceedings:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para 54).

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”.

[33] In the case at bar, trial fairness is not impacted by the Charter breach. The Crown withdrew most of the charges in Barrie and Mr. Tyndale has admitted guilt to the robbery before me. Mr. Tyndale, therefore, in asking for a stay of proceedings, is relying on the impact of the police conduct on the integrity of the justice system. The focus is on whether a remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct (R. v. Babos, supra, at paragraph 39). While the approach focuses on the integrity of the justice system, it is also important to be mindful of the prejudice suffered by the applicant as a result of the breach.

[34] In relation to the breach of section 503 of the Criminal Code, in R. v. Crawford, supra, I held that a stay of proceedings was not the appropriate remedy. It was my view that a sentence reduction was the more just and appropriate remedy. I stated,

[22] In the case at bar, Mr. Janzen attempted to justify DC McDonald’s failure to bring Mr. Crawford to court in a timely fashion by referencing the fact that DC. McDonald had a lot to do that morning, having just arrested seven different people in relation to this very serious robbery. I appreciate that this was a large investigation, but as I understood D.C. McDonald’s evidence, he thought that he could not bring Mr. Crawford to court until he completed what appears to be the entire disclosure package including uploading officer’s notes, obtaining 911 reports and obtaining McNeil checks. In reality none of these things needed to be prepared before Mr. Crawford could be brought to court. All that is required is an information, police notes on potential release, a synopsis of the offences and the criminal record. Anyone who has been in bail court in the past decade knows that the bail package rarely includes the items listed by D.C. McDonald. I have no information about why D.C. McDonald felt that he needed to get this material before bringing Mr. Crawford to court but I am satisfied that it was not necessary and had DC McDonald understood this, Mr. Crawford would have been brought to court on time. I cannot find that the officer was so busy that it was impossible for him to bring Mr. Crawford to court. Instead, he prioritized his paperwork over compliance with the Criminal Code.

[23] On the evidence before me, Mr. Crawford did not experience significant prejudice from this breach, I cannot, however, find that he experienced no prejudice at all. The additional time spent at the police station delayed Mr. Crawford’s access to his counsel in person. Meeting one’s counsel at court after an arrest is often the first time an accused person can really understand what is happening in the court process and what next steps will look like. Moreover, as Mr. Hershberg pointed out, the 24-hour time limit identified in section 503 is not the recommended time to bring someone to court, it is the maximum amount of time permitted in normal circumstances. In the case at bar, Mr. Crawford was held well beyond this upper limit. In light of the importance of complying with section 503 of the Criminal Code generally, and the absence of a reasonable explanation for the delay, it is my view that this was a serious breach, albeit not so serious as to require a stay of proceedings. The case at bar resembles in many ways the facts from R. v. Carter, 2016 ONSC 2832, [2016] O.J. No. 2267 (SCJ). In that case, the officers failed to bring Mr. Carter to court within 24 hours as required by section 503. Mr. Carter was held for 36 hours before he was brought to court. O’Marra J. found this to be a serious breach but noted, like the case at bar, that the breach was not intentional nor was it for the purpose of gathering additional evidence. There was an additional aggravating factor in Carter that does not exist in the case at bar, that is that Mr. Carter was also sick and the police ignored his medical complaints. Despite this additional aggravating feature to the breach, O’Marra J. still found that a stay of proceedings was not appropriate. Instead he reduced the sentence to one of a conditional sentence.

[24] In my view, a stay of proceedings in the case at bar would be a disproportionate response to the violation. Moreover, there is another remedy, which in my view, can meaningfully address the breach. A reduction in sentence speaks to the Charter breach and is an appropriate remedy in all the circumstances of this case.

[35] While Mr. Tyndale is in a slightly different position than Mr. Crawford, in that he did not have a prior criminal record and he was ultimately released on bail, the facts are largely the same and the impact on the integrity of the justice system is the same. For the reasons I expressed in R. v. Crawford, I find that a stay of proceedings is not an appropriate remedy for the 32-hour delay in bringing Mr. Tyndale to court after his arrest.

[36] In relation to the delay in Mr. Tyndale having his bail hearing in Barrie, I have no difficulty finding that prompt access to bail is a necessary under section 11(e) of the Charter. In a system where the presumption of innocence is paramount, lengthy delays in accessing a bail hearing cannot be tolerated. In R. v. Simonelli, Harris J. commented that had the 12-day delay in the accused persons having a bail hearing been a “one off problem, an application for a stay could not be credibly argued” (at para. 21). Harris J. went on to state “The Applicants served a 12-day period of pre-trial custody which constituted a Charter violation and to which they ought not to have been subjected. Although, the resulting prejudice was significant and violated the Charter, balanced against the very serious charges they are facing, there would be no real controversy. The strong societal interest in a trial on the merits would prevail over the individual interests and the liberty of the applicants”.

[37] In Simonelli, Harris J. went on to find that the delays in conducting bail hearings was a systemic problem that had plagued Brampton Court for a long time. It was not a one off. I am unable to make the same findings in this case. Mr. Tyndale’s bail hearing took place in the relatively early stages of the Covid 19 pandemic. The Courts were still largely shut down, the province had issued stay at home orders and staffing courts was difficult. As a result, the bail courts became backlogged and there were delays. But this was a unique situation. I have no evidence that the Barrie courthouse had similar delay problems prior to the pandemic, nor do I have any evidence that the problems did not resolve a short time later when the courts and the province started to re-open. I appreciate that there is evidence that in late July and early August, the Barrie courthouse was struggling to hear cases in a timely fashion and that long bail hearings had to be scheduled. It is my view, however, that given the fact of the pandemic and the absence of evidence that this is otherwise a systemic problem, I cannot find that the integrity of the justice system requires me to stay the proceedings against Mr. Tyndale for the few day delay that arose because Mr. Tyndale’s bail hearing could not finish in a timely fashion.

[38] The final breach relates to the Jail failing to release Mr. Tyndale on January 18, 2020. Mr. Tyndale was kept in custody for 30 hours more than he ought to have been because of a paperwork error at the jail. There is no doubt in my mind that Mr. Tyndale and his family suffered extreme stress from this delay. After being in custody for six months, Mr. Tyndale, a man with no prior criminal record, was finally told he was going to be released. His mother was prepared to pick him up and take him home from the jail, but this did not happen. In my view, this breach of Mr. Tyndale’s section 9 and 7 rights demands a meaningful remedy.

[39] When I consider the entire state conduct in the case at bar, there is a theme that runs throughout - that the system did not pay enough attention to Mr. Tyndale’s right to be free. The officers kept him too long at the police station, prioritizing paperwork over Mr. Tyndale’s liberty. The bail court and the Crown in Barrie were too busy with other cases and schedules to prioritize Mr. Tyndale and the jail was not diligent enough with their paperwork to ensure that those that should be released are released. While I cannot say that any individual event was a long standing or systemic issue, the lack of care and attention to Mr. Tyndale’s liberty is troubling. Mr. Tyndale and the public need to know that our justice system does not condone these actions and that those charged with enforcing the law will follow the law. The remedy in this case must speak to what appears to have been a general indifference to Mr. Tyndale’s liberty. Having said that I cannot find that the integrity of the justice system will be aggravated by completing this sentencing. Moreover, there is in my view, another remedy that is appropriate and just in the circumstances. In my view, a significant sentence reduction addresses, to some the degree, the harm caused to Mr. Tyndale by the above identified breaches and serves to restore the public’s confidence in the justice system by the imposition of a just remedy.

[40] In R. v. Crawford, I reduced Mr. Crawford’s sentence by six months to account for the breach of s.503 of the Criminal Code. It only follows, given the additional breaches in the case at bar, that the sentence reduction in this case should be longer. In my view a reduction in the range of 10 to 12 months would be appropriate.

3. Sentence to be Imposed.

[41] Mr. Janzen, on behalf of the Crown argued that when one takes into account the above breaches, I should impose a three-month conditional sentence in addition to the six months that Mr. Tyndale spent in pre-sentence custody. Mr. Janzen argued that but for the breach, he would have asked for a sentence of one year in jail. When one deducts the pre-sentence custody, a three-month sentence remains. Mr. Janzen argued that as a remedy for the above breaches, the remaining three-month sentence should be served in the community by way of a conditional sentence.

[42] Counsel for Mr. Tyndale seeks a suspended sentence. Counsel argued that any further period of incarceration would undermine the integrity of the justice system. I agree with counsel for Tyndale.

[43] Mr. Tyndale committed a very serious offence. It is violent offence with a weapon. As such, the objectives of deterrence and denunciation must be paramount. There are also a number of relevant aggravating factors that I must consider in assessing the appropriate sentence including that it was a home invasion robbery, a firearm was used (albeit this was originally unknown to Mr. Tyndale), violence was used (although not directly by Mr. Tyndale), Mr. Saba was harmed both physically and emotionally, there were multiple offenders and it was a planned offence.

[44] There also a number of mitigating factors. Mr. Tyndale comes before the court without a criminal record. Mr. Tyndale entered a plea of guilty and is taking responsibility for his action. Mr. Tyndale has strong community support. He is a talented musician with a promising career ahead of him. Mr. Tyndale has complied with his bail since his release in January 2021 and is doing well in the community. I also note that Mr. Tyndale spent six months in pre-sentence custody while we were in the middle of a pandemic. According to Mr. Tyndale, while he was at the Central North Correctional Centre, there were times when he was not provided with masks and hand sanitizer causing him to fear for his own health. In November, Mr. Tyndale was transferred to the Toronto South Detention Centre (TSDC). While at the TSDC, Mr. Tyndale was in a cell block with inmates that were sick and he was subjected to lockdowns, the longest of which was six days. The extra hardship suffered by inmates in the TSDC during this pandemic has been addressed by many of my colleagues. This is yet another relevant mitigating factor on sentencing.

[45] The final factor I would like to briefly touch upon is the fact that Mr. Tyndale comes before the court as a young black man. His counsel, on his behalf, has expressed concerns about discrimination that Mr. Tyndale has faced in the justice system. Pursuant to R. v. Morris 2021 ONCA 680, I can take judicial notice of the over representation of black men in our jails and in the criminal justice system. I can also take judicial notice of anti-black racism in our society and the harm that it causes.

[46] In the ordinary course, I agree with Mr. Janzen that a sentence of one year would be appropriate. When I take into account the Charter breaches and the mitigating factors noted above, I am satisfied that a suspended sentence in the appropriate sentence. While this is a significant reduction to what I would have otherwise imposed, it is nonetheless my view, given the unique facts of this case, that it is an appropriate sentence. This sentence gives proper weight to the Charter breaches, without disregarding the seriousness of his offence. I therefore suspend the passing of sentence and place Mr. Tyndale on probation for one year. He is to keep the peace and be of good behaviour, report to probation within two working days and thereafter as directed by his probation officer. He is to have no contact with Mr. Saba and not to be within 100 m of any where he knows Mr. Saba to be. Mr. Tyndale is to have no contact with Ms. Penteado, Ms. Benmore, Mr. Reid and Mr. Crawford. He is not to possess any weapons as defined by the Criminal Code. I will also impose a DNA order and a 109 order for ten years.

Released December 21, 2021

Justice Mara Greene