ONTARIO COURT OF JUSTICE DATE: 2022 05 05 COURT FILE No.: Hamilton 20-4057 and 21-6123

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

OMAR THOMAS

Before: Justice J.P.P. Fiorucci

Sentencing Submissions Heard on: April 27, 2022 Judgment released on: May 5, 2022

Counsel: R. Branton............................................................................................ counsel for the Crown J. Alsbergas.................................................... counsel for the defendant Omar Thomas

FIORUCCI J.:

INTRODUCTION

[1] On November 30, 2021, following a trial, I found Mr. Thomas guilty of five charges arising out of the robbery of a convenience store on April 25, 2020, and not guilty of charges relating to robberies at two other convenience stores. I provided written reasons for my judgment on January 11, 2022, which are reported at R. v. Thomas, 2022 ONCJ 12; [2022] O.J. No. 113.

[2] I found Mr. Thomas guilty of the following offences relating to the robbery of the Select Convenience store on April 25, 2020:

(1) Count 1: Robbery of Ronak Patel: s. 344 of the Criminal Code; (2) Count 2: Disguise with Intent to Commit an Indictable Offence: s. 351(2) of the Criminal Code; (3) Count 3: Failure to Comply with a Probation Order made on August 15, 2018 (keep the peace and be of good behaviour): s. 733.1(1) of the Criminal Code; (4) Count 4: Failure to Comply with a Probation Order made on August 15, 2018 (do not possess any weapons): s. 733.1(1) of the Criminal Code; and (5) Count 5: Failure to Comply with a Probation Order made on September 5, 2019 (keep the peace and be of good behaviour): s. 733.1(1) of the Criminal Code.

[3] On April 27, 2022, Mr. Thomas appeared before me for sentencing submissions relating to the convenience store robbery. At that time, he also entered guilty pleas to the following offences that he committed on June 29, 2021: Possession of Property obtained by Crime Under $5,000.00 (s. 355(b) of the Criminal Code) and Failure to Comply with a Release Order (s. 145(5)(a) of the Criminal Code).

[4] These are my reasons for sentence in relation to each of the above-referenced charges upon which I have entered findings of guilt.

THE CIRCUMSTANCES OF THE OFFENCES

[5] On April 25, 2020, at 11:39 p.m., Mr. Thomas robbed the Select Convenience located at 54 Queen Street South, Hamilton, Ontario. He approached the store clerk, Ronak Patel, and asked for an HDMI cable. The clerk left the cashier till to help Mr. Thomas. After a few moments, Mr. Thomas held the clerk’s throat, pointed a hammer at him, and pushed him towards the cash counter. Mr. Thomas stated, “give me everything that you have, or I am going to hit you”. Mr. Thomas then opened the till and took money totaling approximately $500.00.

[6] The Select Convenience robbery is depicted in video surveillance from inside the store, which was filed as an exhibit at the trial. Although there is no audio, the video shows the violent attack on the store clerk and the threat to use the hammer. The video also shows that Mr. Thomas concealed the lower part of his face with a mask and, at some points during the robbery, he was wearing a hood which further concealed his head and his face.

[7] On June 27, 2021, a complainant reported that his 2005 Chevrolet Cavalier motor vehicle was stolen from his residence. On June 29, 2021, an off-duty officer observed the vehicle near Fennell Avenue East and Upper James Street in Hamilton. Police conducted a traffic stop of the vehicle. Mr. Thomas was in the driver’s seat of the motor vehicle and was charged with possession of stolen property and with failing to comply with his release order, which required him to remain in his residence at all times, except for medical emergencies involving himself or a member of his immediate family (spouse, child, parents, sibling), or except when in the direct presence of his surety. Mr. Thomas was not in the presence of his surety and was not away from his residence for any medical emergency.

CIRCUMSTANCES OF THE OFFENDER

[8] Mr. Thomas was 35 years old when he committed the Select Convenience robbery. He is now 37 years old. Mr. Thomas and his common law spouse, Valerie Campbell have two young sons, Michael (4 years old) and Jahmar (2 years old).

[9] Mr. Thomas was born in Toronto and has brothers and sisters. Throughout Mr. Thomas’s childhood, his father, Neville Thomas, was often away from home as he was a trucker. Mr. Thomas’s mother received disability benefits. The family was of limited means.

[10] When Mr. Thomas was 11 years old, his brother was the victim of a stabbing and died. Ultimately, his brother’s death resulted in the deterioration of his parents’ marriage. The trauma of his brother’s death led to Mr. Thomas fighting in high school and eventually his expulsion from high school. Mr. Thomas expressed through his counsel that he wished his father was more involved in his life when he was growing up and experiencing these hardships.

[11] When he was about 20 years old and had been expelled from high school, Mr. Thomas began to abuse substances, starting with cocaine. Defence counsel reported that Mr. Thomas abused substances for about 12 years, a period during which he was engaged in a criminal lifestyle. Ms. Valerie Campbell was a friend throughout this period, and supported Mr. Thomas, although the two were not yet in an intimate relationship. She has remained supportive of him throughout his many interactions with the criminal justice system.

[12] Mr. Thomas has the following criminal record which was filed as Exhibit 1 on the sentencing hearing:

2002-09-05 Robbery (Youth): s. 344 CC Probation (18 months)

2005-01-25 Theft Under $5,000: s. 334(b) CC $150

2007-02-27 (1) Fraud Under $5,000: s. 380(1)(b) CC (2) Possession of Property Obtained by Crime: s. 354(1) CC (3) FTC Recognizance: s. 145(3) CC (4) Possession of Property Obtained by Crime: s. 354(1)(a) CC (5) Personation with Intent: s. 403(a) CC (6) Fail to Attend Court: s. 145(2)(a) CC (7) Theft Under $5,000 x2: s. 334(b) CC (8) Theft Over $5,000: s. 334(a) CC (1-8) 30 days & (38 days Pre-Sentence Custody) & Probation for 18 months on each charge concurrent

2007-05-10 (1) Possession of Property Obtained by Crime: s. 354(1)(a) CC (2) Theft Under $5,000: s. 334(b) CC (1-2) 1 day & Probation for 15 months on each charge concurrent

2007-08-08 (1) Fraudulently Obtain Transportation x2: s. 393(3) CC (2) FTC Probation x3: s. 733.1(1) CC (3) Assault with Intent to Resist Arrest: s. 270 CC (4) Fail to Attend Court: s. 145(2)(a) CC (5) Theft Under $5,000 x2: s. 334(b) CC (6) Obstruction: s. 129(a) CC (1-6) 18 days & (82 days Pre-Sentence Custody) & Probation for 1 year on each charge concurrent

2008-01-02 (1) Obstruction: s. 129(a) CC (2) FTC Recognizance: s. 145(3) CC (3) Break Enter & Theft: s. 348(1)(b) CC (1-3) 9 days & (50 days Pre-Sentence Custody) & Probation for 1 year on each charge concurrent

2008-02-01 (1) FTC Probation x2: s. 733.1(1) CC (2) Possession of Property Obtained by Crime Under $5000 x2: s. 354(1) CC (1) 60 days on each charge concurrent (2) 60 days on each charge concurrent but consecutive

2008-03-12 Theft Under $5,000: s. 334(b) CC Conditional sentence order of 8 months

2008-05-28 (1) Obstruction: s. 129(a) CC (2) FTC Probation: s. 733.1(1) CC (1-2) 23 days & (11 days Pre-Sentence Custody) on each charge concurrent

2009-02-24 (1) Theft Under $5,000: s. 334(b) CC (2) Robbery: s. 344 CC (3) FTC Probation: s. 733.1(1) CC (1-3) 30 days & (144 days Pre-Sentence Custody) & Probation for 2 years on each charge concurrent

2010-11-19 (1) Theft Under $5,000 x4: s. 334(b) CC (2) FTC Undertaking: s. 145(5.1) CC (1-2) 35 days & (10 days Pre-Sentence Custody) & Probation for 3 years on each charge concurrent

2010-11-19 (1) FTC Undertaking: s. 145(5.1) CC (2) Possession of a Schedule I Substance: s. 4(1) CDSA (1-2) 35 days & Probation for 3 years on each charge concurrent

2011-03-23 (1) Robbery: s. 344 CC (2) Possession of a Scheduled Substance: s. 4(1) CDSA (3) Theft Under $5,000: s. 334(b) CC (4) FTC Probation x2: s. 733.1(1) CC (5) Break & Enter with Intent: s. 348(1)(b) CC (6) Break Enter & Commit: s. 348(1)(b) CC (1) 5 months & (120 days Pre-Sentence Custody) & Probation for 12 months & Mandatory prohibition order s. 109 CC (2-6) 1 month on each charge concurrent but consecutive & (120 days Pre-Sentence Custody)

2011-04-12 Possession of Property Obtained by Crime Under $5000: s. 354(1)(a) CC Suspended Sentence & Probation for 1 year

2011-05-31 Theft Under $5,000: s. 334(b) CC 10 days consecutive to sentence serving

2011-08-18 (1) Theft Under $5,000: s. 334(b) CC (2) FTC Probation: s. 733.1(1) CC (1-2) 24 days intermittent & (6 days Pre-Sentence Custody) & Probation for 12 months on each charge concurrent

2011-09-28 Unlawfully at Large: s. 145(1)(b) CC 30 days consecutive to sentence serving

2012-06-07 (1) Robbery x2: s. 344 CC (2) Disguise with Intent: s. 351(2) CC (3) Disguise with Intent: s. 351(2) CC (1) 35 months on each charge concurrent & (188 days Pre-Sentence Custody) & discretionary weapons prohibition order s. 110 CC for 10 years (2) 35 months concurrent (3) 35 months concurrent

2012-06-07 (1) Robbery: s. 344 CC (2) Disguise with Intent: s. 351(2) CC (3) Assault with a Weapon: s. 267(a) CC (4) Robbery: s. 344 CC (5) Disguise with Intent: s. 351(2) CC (1-5) 35 months on each charge concurrent

2017-02-01 (1) Possession of Property Obtained by Crime: s. 354(1)(a) CC (2) Robbery: s. 344 CC (1-2) 125 days & (115 days Pre-Sentence Custody) & Probation for 18 months & Mandatory weapons prohibition order s. 109 CC

2017-02-01 Possession of Property Obtained by Crime: s. 354(1)(a) CC 125 days & (115 days Pre-Sentence Custody) & Probation for 18 months

2018-03-16 (1) Theft Under $5,000: s. 334(b) CC (2) FTC Probation: s. 733.1(1) CC (1-2) Probation for 18 months & (120 days Pre-Sentence Custody)

2018-08-15 (1) Robbery: s. 344 CC (2) FTC Recognizance: s. 145(3) CC (1) 3 months and 15 days & (14 months and 15 days Pre-Sentence Custody) & Probation for 2 years & Mandatory weapons prohibition order s. 109 CC (2) 3 months and 15 days & (14 months and 15 days Pre-Sentence Custody) & Probation for 2 years concurrent

2019-09-05 (1) Break & Enter with Intent: s. 348(1)(a) CC (2) FTC Probation: s. 733.1(1) CC (1) 1 day & (66 days Pre-Sentence Custody) & Probation for 1 year (2) 1 day & (66 days Pre-Sentence Custody) & Probation for 1 year

[13] In 2012, when Mr. Thomas received a penitentiary sentence, Ms. Campbell remained supportive of him and visited him while he was incarcerated.

[14] Mr. Thomas had a close relationship with his mother. Unfortunately, she passed away suddenly while he was incarcerated which was very traumatic for him.

[15] Mr. Thomas was released from the penitentiary in 2014. Defence counsel reported that, at that time, Mr. Thomas had his substance abuse issues under control and was gainfully employed in various jobs, including roofing. Defence counsel points to a gap in Mr. Thomas’s criminal record before the entries in 2017 as evidence of Mr. Thomas leading a pro-social lifestyle during that period.

[16] Defence counsel reports that, before the COVID-19 pandemic, Mr. Thomas was enrolled in a program to become a heavy forklift operator. Mr. Thomas claims that the pandemic thwarted any job opportunities that would otherwise have been available to him.

[17] Mr. Thomas continues to have the support of his family. Ms. Campbell’s letter of support filed as an exhibit at the sentencing hearing pleads for Mr. Thomas’s release from custody so that he can return to being the husband and father he is meant to be. Ms. Campbell also details the financial struggles the family has endured, including periods of homelessness. Ms. Campbell states that Mr. Thomas’s incarceration has caused serious financial hardship for her and the children, and she fears that they will one day be homeless again.

[18] Mr. Thomas also has the support of his mother-in-law, Barbara Eades, who describes him as a kind, loving and funny man who has many layers. Ms. Eades also pleads for Mr. Thomas’s release so that he can contribute financially to the family and return to being a husband and to being a father to his boys.

[19] In his letter of support, Mr. Thomas’s father, Neville Thomas, also described Mr. Thomas as strong, funny, loving and caring and as someone who excelled at everything he put his mind to. Neville Thomas too pleads for his son’s release so that he can return to work, school and supporting his family.

[20] In short, by all accounts, Mr. Thomas is a committed and loving husband and father, notwithstanding his egregious history of criminal behaviour.

[21] Mr. Thomas has plans to work for a friend who owns his own roofing business in Mississauga when he is released from custody. Through his counsel, he states that gainful employment that will help him support his family is the key to shedding his criminal lifestyle.

[22] Ms. Campbell has sought out programming for Mr. Thomas, including anger management and family therapy which she believes will assist Mr. Thomas with his re-integration into society when he is released.

POSITIONS OF THE PARTIES

[23] The Crown seeks a sentence of 4 years jail for the convictions relating to the convenience store robbery and 4 months jail consecutive for the possession of the stolen motor vehicle and failure to comply with release order. The Crown also seeks ancillary orders.

[24] Therefore, the global sentence sought by the Crown is 52 months jail less pre-sentence custody of 524 days that Mr. Thomas has served, which is the equivalent of 786 days or 25.8 months at the Summers rate of 1.5:1. Acceptance of the Crown’s position would result in Mr. Thomas serving a further 26.2 months in jail. The Crown acknowledges that Mr. Thomas experienced harsh conditions of pre-sentence custody as outlined in his affidavit and the custody records filed as part of the sentencing hearing. However, the Crown says that it took those harsh conditions of pre-sentence custody into account in arriving at a restrained position of 4 years jail for the robbery and 4 months jail consecutive for the remaining offences. The Crown states that the primary sentencing objectives are denunciation and specific and general deterrence.

[25] The Defence seeks a time served sentence based on Mr. Thomas’s personal circumstances, including his supportive family and his prospects of rehabilitation. The Defence also seeks Duncan credit for the harshness of Mr. Thomas’s pre-sentence custody and requests a Downes credit of 60 days for his restrictive release conditions when he was on a release order from November 27, 2020 until he breached the order and was re-arrested on June 29, 2021.

PURPOSES AND PRINCIPLES OF SENTENCING

[26] Section 718 of the Criminal Code instructs that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. Sentencing judges strive to achieve this goal by imposing just sanctions that have one or more of the following objectives: (a) denunciation of the unlawful conduct and the harm done to victims or to the community that is caused by the unlawful conduct; (b) specific deterrence of the offender and general deterrence of other persons who might commit similar offences; (c) separation of offenders from society, where necessary; (d) assistance in rehabilitating offenders; (e) reparations for harm done to victims or to the community; and (f) promoting a sense of responsibility in offenders, and acknowledgment of the harm they have caused to victims or to the community.

[27] Ultimately, the fundamental principle of sentencing, set out in s. 718.1 of the Criminal Code, is to impose a sanction that is proportionate to the gravity of the offence committed and the degree of responsibility of the offender.

[28] The totality principle in s. 718.2(c) of the Criminal Code requires sentencing judges to ensure that the ultimate effect of the combined sentence for multiple offences does not “deprive the offender of any hope of release or rehabilitation”. [1]

AGGRAVATING, MITIGATING AND OTHER RELEVANT CIRCUMSTANCES

[29] Section 718.2(a) of the Criminal Code states that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

Aggravating Circumstances:

[30] On April 25, 2020, Mr. Thomas committed a robbery at the Select Convenience store using violence and the threat of violence while armed with a hammer and disguised. The robbery occurred late at night and the store clerk was a vulnerable victim working alone in the store at the time.

[31] In R. v. Huang, 2020 ONCA 341, the Ontario Court of Appeal stated the following regarding the aggravating features of convenience store robberies:

In determining the fit sentence for the appellant, we recognize that this court has upheld significant sentences for convenience store robberies and has underscored that "[a]rmed robbery of a neighbourhood convenience store is an extremely serious offence, and one which is of great concern to the community. The merchants who are operating these stores on a basis of long hours require protection": R. v. Brown, [1982] O.J. No. 74 (C.A.), at paras. 8-9 (four-year sentence for two counts of robbery of convenience stores); R. v. Boyle (1985), 7 O.A.C. 342 (C.A.), [1985] O.J. No. 33, at para. 6 (four-year sentences served consecutively on each of two counts of robbery of convenience stores) ("the operators of convenience stores are vulnerable to the offence of robbery and they must be protected by the imposition of appropriate sentences"). [2]

[32] When he committed the Select Convenience robbery on April 25, 2020, Mr. Thomas was bound by two probation orders. One of these probation orders was in relation to convictions for robbery and failing to comply with a recognizance and prohibited him from possessing weapons as defined by the Criminal Code. The other probation order was imposed for the offences of break and enter with intent and failing to comply with probation.

[33] Mr. Thomas’s criminal record starts in 2002 with an entry for robbery. Between 2002 and 2019, he has nine convictions for robbery, four convictions for break and enter, four convictions for disguise with intent, and numerous convictions for theft and for noncompliance with court orders. In 2012, Mr. Thomas received a penitentiary sentence for robbery and disguise with intent offences and an assault with a weapon. When he was released from custody, after a brief gap in his record, he continued to commit similar offences, including the robbery of the Select Convenience in April of 2020. Mr. Thomas has demonstrated a longstanding pattern of committing robberies and has to date been undeterred by previous sentences of lengthy incarceration.

[34] On June 29, 2021, while on release for charges relating to three robberies, including the Select Convenience robbery, Mr. Thomas was in possession of a stolen motor vehicle and was away from his residence in contravention of his release order. This resulted in his arrest and pre-sentence detention pending disposition of all of his outstanding charges.

Mitigating Circumstances:

[35] Mr. Thomas has a supportive family willing to assist him with his efforts to rehabilitate himself and lead a pro-social lifestyle. Mr. Thomas’s strong family support is a factor which increases the prospects of his rehabilitation.

[36] Mr. Thomas suffered the traumatic experience of the death of his brother at a young age. His father was largely absent from his life as he was growing up, a cycle which Mr. Thomas wishes to break with his own sons. After being expelled from high school, Mr. Thomas developed a substance abuse issue which likely contributed to his commission of some of the offences on his lengthy criminal record.

[37] At times, Mr. Thomas has been able to maintain gainful employment to support himself and hopes to support his family by working for a friend when he is released from custody. He is a caring and loving husband and father, whose young family has suffered emotionally and financially because of his incarceration.

[38] Mr. Thomas entered not guilty pleas to the offences relating to the robbery of the Select Convenience. He was entitled to exercise his right to a trial, and the fact that he conducted a trial is not an aggravating factor. [3] At the sentencing hearing, Mr. Thomas expressed his remorse both through his counsel and when he addressed me at the conclusion of counsels’ submissions. I have taken his expression of remorse into account as a mitigating factor which demonstrates Mr. Thomas’s acknowledgement of the harm done to the victim and the community and shows that he has some insight into his offending behaviour.

Downes and Duncan Credit:

[39] Defence counsel made extensive submissions for both Downes and Duncan credit. I will address below the Defence position that time spent under restrictive bail conditions and the harsh pre-sentence custody conditions which Mr. Thomas experienced should mitigate his sentence.

THE SENTENCE

[40] First, I note that under s. 344 of the Criminal Code, the offence of robbery has a maximum penalty of life imprisonment. As Clayton Ruby states in Sentencing, Tenth Edition, “the seriousness of the offence lies in the fact that threats or the actual application of violence is employed in the course of stealing from the victim”. [4]

[41] I have reviewed the authorities filed by Crown counsel to support her submission that the 4-year sentence the Crown seeks for the offences arising out of the Select Convenience robbery is a restrained position which takes into account the mitigating factors, including the harshness of the pre-sentence custody served by Mr. Thomas to date.

[42] Included in those cases filed by the Crown is R. v. Grujic, a 2009 decision of Howden J. of the Ontario Superior Court of Justice, which was affirmed by the Ontario Court of Appeal. [5] After reviewing the authorities cited by counsel, including the 1998 Ontario Court of Appeal decision in R. v. Lee, [1998] O.J. No. 2881, Howden J. stated the following:

I have reviewed all of the cases cited by counsel. While I note Boswell J.'s finding in Miller that the range of sentence, without mitigating or aggravating factors except that of a vulnerable victim, is 24 to 36 months; in my view the high end of the range is now 48 months. The Court of Appeal in Lee raised the bar in this regard. The fact of a long criminal record was no doubt an aggravating factor in that case; however, that factor was balanced against the lack of a weapon, a factor found to be significant by the Court of Appeal. [6]

[43] Mr. Thomas, a perpetrator with nine prior robbery convictions, who was on probation for robbery and break and enter offences, used violence and the threat of violence with a hammer to rob the vulnerable victim in this case, Mr. Patel. The fact that Mr. Thomas was undeterred by lengthy terms of imprisonment he received for prior robbery and disguise with intent convictions is a significant aggravating factor. In the circumstances of Mr. Thomas’s case, the principles of denunciation and general and specific deterrence must be given primary consideration. However, the principle of restraint requires the Court to adopt “a measured approach, even for repeat offenders”. [7]

[44] Mr. Thomas was in custody between April 29, 2020 and November 27, 2020. He was released on a release order between November 28, 2020 and June 29, 2021, when he was re-arrested for possession of the stolen motor vehicle and failing to comply with his release order. He has remained in custody since his arrest on June 29, 2021.

[45] Mr. Thomas filed an affidavit in support of his request for Downes and Duncan credit. The Crown did not seek to cross-examine Mr. Thomas on his affidavit.

[46] I will deal now with Mr. Thomas’s request for Downes credit. Where an offender is subject to strict bail terms, this may be considered as a mitigating factor on sentence, especially where the offender is subject to house arrest. [8] However, the credit to be given for strict bail terms, including house arrest is not automatic. [9] In Sentencing, Principles and Practice, the authors state, “[t]he extent to which bail terms should mitigate the sentence imposed is a matter for the sentencing judge to decide with regard to all the factors, including whether the offender breached his bail terms and whether he sought to have them relaxed”. [10] In this regard, the authors cite the Ontario Court of Appeal in R. v. Junkert, 2010 ONCA 549, at para. 37 and the Newfoundland Court of Appeal in R. v. RJH, 2012 NLCA 52, at para. 10.

[47] In his affidavit, Mr. Thomas states that, while on release, he was only able to leave his two-bedroom apartment if he was in the company of his partner, Valerie Campbell. He claims that this time period, between November 2020 and June 2021, was particularly difficult as he was unable to obtain gainful employment and could not meaningfully contribute to the household.

[48] I reject Mr. Thomas’s claim for any Downes credit. First, his bail conditions were less restrictive than house arrest. He was permitted to be outside his home at any time while in the company of Ms. Campbell. Mr. Thomas’s affidavit suggests that the restrictive conditions of his bail were the cause of his inability to obtain gainful employment. However, he has failed to produce any evidence that he sought to obtain employment during this period, or that he sought relaxation of the conditions of his release to either seek employment or because he had a job prospect that required relaxation of his bail conditions. Furthermore, on June 29, 2021, Mr. Thomas breached his bail by leaving the home without Ms. Campbell. When he left the home, he committed the offence of possession of a stolen motor vehicle.

[49] I find that, in these circumstances, Mr. Thomas is not entitled to receive any Downes credit in mitigation of his sentence.

[50] I will now address Mr. Thomas’s request for Duncan credit for harsh conditions of pre-sentence custody. To date, Mr. Thomas has served 524 actual days of pre-sentence custody. His request for Duncan credit is supported by his affidavit and custody records filed on the sentencing hearing.

[51] Recently, in R. v. Marshall, 2021 ONCA 344, at paras. 50-53, Doherty J.A. for the Ontario Court of Appeal made the following observations about Duncan credit:

50 Before I move to Marshall #2, I propose to make some observations about the calculation of the "Duncan" credit. A "Duncan" credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind the 1.5:1 "Summers" credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody: Summers, at paras. 28-29. The "Duncan" credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a "Duncan" credit: R. v. Morgan, 2020 ONCA 279.

51 It is also important to appreciate and maintain the clear distinction between the "Summers" credit and the "Duncan" credit. The "Summers" credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence. The "Summers" credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. The "Summers" credit is statutorily capped at 1.5:1. It is wrong to think of the "Summers" credit as a mitigating factor. It would be equally wrong to deny or limit the "Summers" credit because of some aggravating factor, such as the seriousness of the offence: R. v. Colt, 2015 BCCA 190.

52 The "Duncan" credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the "Summers" credit will be deducted. Because the "Duncan" credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

53 Often times, a specific number of days or months are given as "Duncan" credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the "Duncan" credit, only one of presumably several relevant factors, there is a risk the "Duncan" credit will be improperly treated as a deduction from the appropriate sentence in the same way as the "Summers" credit. If treated in that way, the "Duncan" credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 2004 39056 (ON CA), 187 O.A.C. 307 (C.A.). Arguably, that is what happened in this case, where on the trial judge's calculations, the "Duncan" credit devoured three-quarters of what the trial judge had deemed to be the appropriate sentence but for pretrial custody [emphasis added]. [11]

[52] In his affidavit, Mr. Thomas asserts that his time in custody at both the Hamilton Wentworth Detention Centre and the Maplehurst Correctional Complex was extremely difficult. He endured significant lockdown periods, triple bunking, sleeping on the floor, and lack of showers sometimes for days at a time. The COVID-19 pandemic resulted in a significant limitation on programming and personal visits. Mr. Thomas states that the harsh conditions took a significant toll on his mental well being. The jail records filed support Mr. Thomas’s assertions regarding the harshness of his pre-sentence custody and the Crown did not seek to cross-examine him on this issue. I have considered the harsh conditions of Mr. Thomas’s pre-sentence custody as a mitigating factor on sentence.

[53] I find that balancing the aggravating and mitigating factors in this case, a sentence of 4 years jail is the appropriate sentence for the convictions relating to the Select Convenience robbery. Although I find that the Crown position of 4 months jail to be served consecutively for the June 2021 offences of possession of the stolen motor vehicle and failing to comply with the release order is appropriate, in the circumstances, including the Duncan mitigating factor and the principle of totality, I find that the 4-month sentence in relation to the June 2021 offences is to be served concurrently.

[54] In the circumstances of this case, any reduction of the sentence below a 4-year global jail sentence would make the sentence disproportionate to the gravity of the offences committed and the degree of responsibility of the offender, Mr. Thomas.

[55] On counts 1 through 5 on Information No. 20-4057, relating to the Select Convenience robbery on April 25, 2020, Mr. Thomas is sentenced to 4 years jail less Summers pre-sentence custody of 786 days or 25.8 months (524 days at the rate of 1.5:1). This leaves a sentence to serve of 674 days or 22.2 months concurrently on each count.

[56] On counts 1 and 2 on Information No. 21-6123, the possession of the stolen motor vehicle and failure to comply with release order offences, I impose a 4-month jail sentence to be served concurrently on each count, and concurrently to the sentence imposed on Information No. 20-4057.

[57] In relation to the robbery and disguise with intent convictions, I make a DNA databank order. In relation to the robbery offence, I make a s. 109 Criminal Code weapons prohibition order for life.

Released: May 5, 2022 Signed: Justice J.P.P. Fiorucci

[1] R. v. Johnson, 2012 ONCA 339, at para. 18.

[2] R. v. Huang, 2020 ONCA 341, at para. 36.

[3] R. v. Ellacott, 2017 ONCA 681, at para. 22.

[4] Clayton Ruby, Sentencing, Tenth Edition, (Toronto, Ontario: LexisNexis Canada Inc., 2020), at p. 1217.

[5] R. v. Grujic, [2009] O.J. No. 3228 (Ont. S.C.J.), affirmed 2012 ONCA 146.

[6] Ibid, at para. 12.

[7] R. v. Kory, 2009 BCCA 146, at para. 6.

[8] R. v. Downes, 2006 3957 (ON CA), 79 O.R. (3d) 321; [2006] O.J. No. 555, at para. 37 (Ont. C.A.); R. v. Junkert, 2010 ONCA 549, at para. 35.

[9] R. v. Lindsay, 2009 ONCA 532 at para. 45, leave to appeal to SCC refused, [2009] SCCA No. 540.

[10] Danielle Robitaille and Erin Winocur, Sentencing, Principles and Practice, (Toronto, Ontario: Emond Montgomery Publications Limited, 2020), Chapter 4, p. 126.

[11] R. v. Marshall, 2021 ONCA 344, at paras. 50-53.