Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2022-05-19 COURT FILE No.: 21-21913 & 21-34893

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JAHEIM ALLEN-BROWN

Before Justice B. Green

Reasons for Sentence May 19th, 2022

Counsel: Mr. S. O’Neill, for the Crown Mr. C. Levien, for the Defendant

Green J.:

A. Introduction

[1] Mr. Allen-Brown was charged with one count of aggravated assault for attacking his girlfriend on March 25th, 2021. He plead not guilty, and the matter proceeded to trial.

[2] The victim, Ms. Greentree, was an extraordinarily difficult and reluctant witness. She chose to commit perjury and lie about what happened to her even after she was confronted with overwhelming evidence that her boyfriend at the time, Mr. Allen-Brown, was the person who viciously beat her and caused lasting disfiguring injuries to her face. Fortunately, there were cameras throughout the building where Ms. Greentree was attacked. The crown was able to piece together the movements of Ms. Greentree and, with some additional eyewitness evidence, prove beyond a reasonable doubt that Mr. Allen-Brown was the assailant.

[3] During the trial, it became clear that Mr. Allen-Brown breached non-communication conditions which were intended to protect the victim and to prevent any possible interference with the proper administration of justice. Mr. Allen-Brown continued to communicate with Ms. Greentree after he was arrested and held in custody pending the trial. While I cannot specifically find that he colluded with or coerced Ms. Greentree to lie to this Court, Mr. Allen-Brown’s continued communication with a vulnerable teenage victim reflects poorly on his potential for rehabilitation and his willingness to respect future court orders intended to protect Ms. Greentree and her family from him.

[4] The crown advocated for a period of custody of four years incarceration less any pre-trial custody. He explained that his position of four years is a mitigated sentence position that reflects the conditions in which Mr. Allen-Brown served his pretrial custody. Absent the conditions in which Mr. Allen-Brown was housed in the remand center, he would have sought a sentence in the range of five years or more. The balance of the sentence left to serve would be 29 months in custody. The crown also sought a 743.21 order prohibiting contact while in custody with the Greentree family, a section 109 weapons prohibition order and a DNA order.

[5] Counsel emphasized his client’s youth, his life challenges and his expressed remorse for his actions. He urged that systemic factors experienced by a young black man should mitigate this Court’s consideration of Mr. Allen-Brown’s moral culpability for this offence. He also emphasized the abysmal conditions in custody and that this was Mr. Allen-Brown’s first time in an adult facility. He submitted that a sentence of 12 months less time served would be appropriate in all the circumstances. In effect, counsel submitted that his client has served more time than is warranted for this offence.

[6] I find that the position advocated by counsel for Mr. Allen-Brown was evidently inadequate. It would not reflect the predominant principles of sentencing or the aggravating factors. The range advocated for by the crown appropriately balanced the competing considerations of the circumstances of the offender and the circumstances of the offence as well as the applicable sentencing principles. However, it should be mitigated by the conditions in which Mr. Allen-Brown served his pretrial custody and other considerations.

[7] Despite his poor performance on probation in the past, Mr. Allen-Brown and our society would benefit from him being supervised in the community through a structured adult probation order once he is released from custody to address some of his life challenges. He will need a positive support system in place to assist him with transitioning into adulthood and reintegration into life outside of custody. As a result, the sentence imposed will be in a range that allows me to impose a period of probation.

B. The facts

i. The circumstances of the offender

[8] Mr. Allen-Brown was 4 months past his 19th birthday when he committed this offence. This is his first adult conviction and his first experience in an adult custodial facility. He will be 20 years old when he is sentenced.

i. The background

[9] There is no doubt that Mr. Allen-Brown has had a difficult life. He struggled with alienating behavioral issues that commenced when he was a small child. He was frequently in conflict with the law as a teen. A section 34 report was prepared in 2017 as a result of his prior offences as a youth and it fulsomely outlined his troubled history. The report and attachments from various professionals detailed the following information about Mr. Allen-Brown:

• He is the youngest of five children born to his mother. She raised him as a single parent. He had sporadic contact with his biological father. His older brother tried to step in as a parent but that lead to episodes of violence. Both his mother and his eldest brother resorted to physical abuse in response to Mr. Allen-Brown’s behavioural issues;
• He had a poor relationship with his mother for most of his life because he felt that she was trying to “pathologize” him and she was always looking for evidence of serious mental illness or developmental delays to explain his continued misconduct. His mother was convinced that her son struggled with autism although subsequent assessments ruled that out as a valid diagnosis. The author highlighted that Mr. Allen-Brown experienced many years of “rejection and criticism” at home and the absence of his father which may have exacerbated his behavioural problems.
• Mr. Allen-Brown has struggled with various mental health issues since he was a small child including attention deficit hyperactivity disorder (ADHD) and oppositional defiance disorder (ODD). These disorders are “characterized by hyperactivity, impulsiveness, difficulty problem solving and emotionally labile presentation”. The report detailed his poor social skills, emotional instability, impulsivity, aggression and attention deficits. At the time the report was prepared, Mr. Allen-Brown was not being treated for any of these disorders. The author noted that “may reduce his ability to appropriately manage his own behaviour and emotional reactivity”.
• Mr. Allen-Brown’s mother decided to surrender him to the C.A.S. due to his ongoing behavioural issues. He was placed in a residential treatment program at Kinark Child and Family Services between the ages of 11 and 12. He received intensive treatment at this facility. However, it was a particularly devastating experience for Mr. Allen-Brown because he was misled about where they were going and then he felt that he was abandoned at the group home;
• Mr. Allen-Brown has never functioned well in school as a result of his mental health and familial issues. He exhibited behavioural issues commencing in preschool and throughout his schooling. He required specialized programming. He has a “long history of defiance and verbal and physical aggressive both at home and at school”. Individual education plans were developed to address Mr. Allen-Brown’s special needs at school, but they were unsuccessful.
• Mr. Allen-Brown was not able to function well in group sporting activities. Rather, he spent much of his teen years involved with negative peer associations and smoking marijuana. He was in and out of custody for various offences.
• Mr. Allen-Brown had the benefit of programs offered by Frontenac Youth Services as a young teen. He participated in a number of programs from 2013 to 2016 including individual therapy and day treatment. His mother was referred to parenting programs, but she did not participate to any significant degree.
• The author noted that during interviews, Mr. Allen-Brown had difficulty empathizing with the victims of his crimes. In addition:
  • He demonstrated a “tendency to minimize all the antisocial behaviour he has participated in. Although he expressed a desire to reduce antisocial behaviours in the future, this seemed to relate more to a fear of further justice system involvement rather than genuine remorse for his behaviour”.
• A risk assessment was conducted, and it was determined that he fell in the “range associated with high risk of recidivism”. It was recommended that Mr. Allen-Brown receive psychiatric follow up for “pharmacological treatment” and various treatment and counselling programs to reduce the risk of him reoffending.

[10] The contents of the presentence report (PSR) that was prepared for this offence are inconsistent with these earlier reports that were prepared by various professionals with respect to Mr. Allen-Brown’s upbringing. Notably, in the PSR, he denied that he was ever “abused in any way”. His mother also denied any significant physical discipline which is irreconcilable with conduct that was witnessed by the police as well as other incidents of physical abuse documented in earlier records.

[11] Mr. Allen-Brown described his mother as patient and that she loves him. However, it appears from the section 34 report that he endured years of being verbally berated and he suffered some emotional trauma at home. Ms. Allen’s conduct towards her son was thought to reflect her frustration with a lack of resources to manage her son’s behavioural issues.

[12] Mr. Allen-Brown described the emotional trauma of being placed in a group home by his mother at 11 years old. When he finally returned home, he felt estranged from his family, and he confirmed that he frequently ran away. Despite educational resources being devoted to address his special needs, he began “lashing out at life” and school was “no longer a priority” for him. He was eventually expelled from school. He has not followed up on any programs to obtain his high school diploma.

[13] Mr. Allen-Brown’s mother set a good example for him in terms of her work ethic and supporting her children. Nevertheless, he has never had a job in his life. Instead, he chose to “intermittently engage criminal activity to financially support himself”. He expressed that prior to being shot in 2020, he had a “daily habit” of smoking marijuana. Obviously since he was not working, he found illegal means to support his habit and his lifestyle.

[14] He acknowledged that he had a significant issue with anger, and he is aware that he has some mental health issues. Ms. Allen provided a much more insightful description of Mr. Allen-Brown’s emotional instability. She reported that he “experiences rage when he is upset and noted that his criminal history reflects a pattern of this behaviour”.

ii. Criminal record

[15] Mr. Allen-Brown has a lengthy criminal record as a youth. He has been routinely incarcerated since 2018. He related that whenever he was released from custody, he “didn’t know what to do to get a job or how to function in life”. However, after his release from custody, he had the benefit of probation to seek assistance with his life issues and could have sought assistance if he wanted it. The youth worker described Mr. Allen-Brown as “not an easy client and his response to prior supervision was poor overall”. The youth worker also noted that Mr. Allen-Brown chose not to engage in available supports and programming.

[16] In contrast, Mr. Allen-Brown related that he did not feel supported by his youth worker and that he was not a priority. He does not seem to take accountability for his own choices and his lack of investment in counseling. Mr. Allen-Brown felt particularly disillusioned during the pandemic in terms of fulfilling any of his goals to find work or upgrade his education.

[17] For the past four years, Mr. Allen-Brown has been in and out of custody for very serious offences. He accumulated a significant related youth record. On July 3rd, 2018, he was convicted of a string of offences: theft under, 2 counts of assault, mischief, aggravated assault, armed robbery and fail to comply with a recognizance. He received credit for 581 days of pre-sentence custody plus an additional sentence of 6 months of custody that was served as 4 months incarceration to be followed by a period of 2 months of supervision in the community and 1 year of probation. As a result, he was incarcerated for most of 2017 and 2018. This was the equivalent of a two-year sentence of incarceration as a youth.

[18] While serving the custodial portion of his sentence, Mr. Allen-Brown was convicted of another assault on October 25th, 2018. He received a 12-day sentence that was served as 8 days in custody and 4 days under supervision in the community.

[19] Mr. Allen-Brown would have finished the custodial part of his sentence from July of 2018 some time in November of 2018. He could not have been in the community very long before he was arrested again for another violent offence. On February 27th, 2019, he was convicted of another assault. In addition to 120 days of pretrial custody (which means he was arrested within weeks after his last release), he received a further custodial sentence of 48 days and 24 days under supervision in the community and 18 months of probation.

[20] By mid-2019, Mr. Allen-Brown had been in custody almost constantly since 2017. He was bound by two probation orders with various terms and conditions including counselling when he was released from custody. He remained out of custody for approximately 6 months. During that time, he would have had the opportunity to take advantage of counseling, job training or education programs if he wanted to engage with his youth worker. Instead, he continued with his criminal lifestyle. Notably, the pandemic did not alter job prospects until 2020.

[21] Mr. Allen-Brown was arrested at the end of 2019 or early 2020 for more offences including offences of violence again. He was convicted on March 31st, 2020, of possession of drugs, assault and possession of a firearm. In addition to a 102 days of presentence custody, he received an additional 272 days in custody and 136 days under supervision in the community as well as 1 year of probation.

[22] Based on a review of his record, Mr. Allen-Brown would have been released back into the community on December 31st, 2020. At that time, he was bound by 136 days of supervision in the community which is similar to parole in the sense that he was given the benefit of serving the balance of his custodial sentence in the community. This was a total period of incarceration of 17 months. The period of community supervision would not have ended until the middle or end of April of 2021. It was during the very brief period, while he was on community supervision, that Mr. Allen-Brown committed this vicious offence in March of 2021. Clearly, the potential loss of his liberty did not deter him from committing more serious violent offences.

[23] It is evident that incarcerating Mr. Allen-Brown in youth facilities had absolutely no impact on discouraging his criminal behaviour or changing his lifestyle choices whatsoever. Whenever he was out of custody, he was quickly reincarcerated for new serious offences. He has multiple convictions for violence, and he has established that he has little regard for court orders.

iii. This offence

[24] Mr. Allen-Brown was not arrested immediately after beating Ms. Greentree because she lied to the police about what happened to her, and he lied to the police as well. They both claimed that she fell in the building. Considering all her injuries were isolated to her face and head, that was a ridiculous account. By the time of the trial, after having continued conversations with Mr. Allen-Brown, Mr. Greentree invented a new, equally implausible story that a mysterious unidentified assailant popped out of the stairwell while she was at the end of the hallway with Mr. Allen-Brown, and he attacked her for no apparent reason.

[25] Mr. Allen-Brown does not have the mitigation of a plea of guilty. Moreover, until the sentencing hearing, Mr. Allen-Brown showed little, if any, sincere remorse for causing such horrific injuries to Ms. Greentree’s face nor any insight into the seriousness of the abuse of his girlfriend. Instead, Mr. Allen-Brown blatantly defied non-communication conditions intended to protect Ms. Greentree from him and to protect the integrity of the administration of justice pending the trial. While he was awaiting trial for this offence, he persisted with calling Ms. Greentree from custody.

[26] I am entitled to consider the further offences of breaching a court order by contacting the victim, while he was in custody as an adult awaiting trial, for the purpose of assessing whether there is any real potential for Mr. Allen-Brown’s rehabilitation and to question the sincerity of his recently expressed remorse for his actions. Mr. Allen-Brown spoke about Ms. Greentree in the PSR. He stated that, “I think that we are good, but I’ll know when I’m outside of here”. It is apparent that Mr. Allen-Brown anticipates that Ms. Greentree still wants a relationship with him despite viciously beating her.

[27] Mr. Allen-Brown’s continued contact with Ms. Greentree and his expectations of forgiveness highlight his lack of insight into the severity of his crime and his selfishness. The last thing that Mr. Allen-Brown should expect is any sympathy or support from Ms. Greentree. Sadly, Ms. Greentree has such little self-worth that she was prepared to continue this relationship with him. He poses a substantial risk to her safety since she is both unwilling and unable to protect herself from him.

[28] After the preposterous story told by Ms. Greentree during the trial, Mr. Allen-Brown acknowledged his role in the offence to the author of the PSR, “however he presented some minimization and commented multiple times that he did not have the opportunity to speak his side during the trial”. He stated that he was not “remorseless”. During the sentencing hearing, he expressed that he is very sorry for what he did to Ms. Greentree and to her family. He said that there are no excuses for his conduct. In light of his actions and attitude, I found his last-minute expressions of remorse to her, and her family to be contrived to secure the benefit of a mitigated sentence.

iv. A life altering event and the conditions in custody

[29] Weeks after attacking Ms. Greentree, while the investigation was ongoing, Mr. Allen-Brown experienced a life altering event. He was shot five times in his legs. Both Ms. Greentree and his mother provided him with emotional support after he was shot.

[30] Mr. Allen-Brown drafted an eloquent letter to me describing the terrible conditions that he has been forced to endure after being shot and while in custody. It is apparent from the letter that he is an intelligent and articulate young man. He detailed that on April 5th, 2021, he was shot multiple times. He was hospitalized at Sunnybrook and required surgery. He was in the process of going through rehabilitation on April 30th, 2021, when the police attended his home to arrest him for this offence. He was not home at the time, but he turned himself in later that night.

[31] As a result of his injuries, Mr. Allen-Brown’s experiences in custody awaiting trial have been particularly distressing and traumatizing. The crown introduced a medical record file review from the medical care facility where Mr. Allen-Brown was originally housed. He also called a witness from the custodial facility at Central East Correctional center where Mr. Allen-Brown is currently housed to dispute the claims of dramatic mistreatment and inhumane conditions set out in Mr. Allen-Brown’s letter.

[32] Acting Deputy Superintendent Michael Hammer testified about the expected practices of correctional officers and their policies. He reviewed Mr. Allen-Brown’s custodial records. However, he never had any firsthand dealings with Mr. Allen-Brown. He could only testify about how prisoner should be treated in certain pods, not about how Mr. Allen-Brown was actually treated in this correctional facility. I accept that some of Mr. Allen-Brown’s claims were established to be inconsistent with institutional records. Nevertheless, I also accept that he related his perceptions of how he experienced an adult custodial facility while disabled and as a relatively young person.

[33] I accept that Mr. Allen-Brown has not received optimal treatment, accessibility devices or rehabilitative programs that are necessary for him to heal and regain mobility. For example, I requested on the warrant of remand that he be provided with a walker and my order was ignored by the facility. If they are prepared to ignore the requests of a jurist, I find it hard to believe that they respond to Mr. Allen-Brown’s requests for assistance. Moreover, Deputy Superintendent Hammer acknowledged that many basic needs like showering may not be met if there is insufficient staff at the jail.

[34] Although Mr. Hammer refused to call the unit where Mr. Allen-Brown was first housed “segregation” because of institutional changes in response to inquests and the addition of some day rooms, I find that was where Mr. Allen-Brown was housed at CECC for part of his stay there. Although he may have had occasional access to phones and medical professionals, the lock down records support that he was frequently kept in his cell for days at a time. While locked down, he would not have been able to shower, obtain clean clothes or bed linen or contact his family.

[35] Due to Mr. Allen-Brown’s physical injuries, he was initially housed at Maplehurst from May 13th to July 1st, 2021. He spent that entire period in the infirmary and “therefore he was not subject to institutional lock downs” (Maplehurst Correctional Complex Lock Down summary). Thereafter, he was transferred to the Central East Correctional Center or CECC.

[36] From July 1st to July 28th, 2021, the only records of Mr. Allen-Brown’s treatment are in the cell tracking sheets that were kept by correctional staff because he was in the “specialized care and stabilization unit” which used to be called segregation. During that time, there were 7 days when he had no “out of cell time”, 3 days with less than 2 hours and 18 days when he had 2 plus hours of out of cell time. There were 6 days when he was not given access to a shower. I accept that Mr. Allen-Brown did not have access to essential rehabilitative programs to assist with his healing and mobility. I also accept that he had a very challenging time caring for himself in that setting.

[37] Mr. Allen-Brown was transferred to the “specialized care and supportive care” wing. From August 7th to December 27th of 2021, Mr. Allen-Brown was subject to 33 days of lock down and many of those days were consecutive. For successive days, Mr. Allen-Brown was unable to shower, obtain clean clothes or clean bed linen or use the phone. The primary reason for the lock downs during this time period was noted as “staffing shortages”.

[38] There were unexplained gaps in the custodial records, but they continued from January 15th through to March 22nd. There were a further 37 days of lock down during that time period which related to “staffing levels”, “outbreak management protocol” and “droplet precautions”. Most of those lock downs were successive days. For example, Mr. Allen-Brown was locked down every day, all day, from January 20th to February 10th, 2022.

[39] I cannot imagine what it was like to endure weeks of being confined to a small cell without access to showers or phone calls with family or friends. The conditions at Central East Correctional Center have not improved since March and, despite the lack of lock down records, I take judicial notice of the fact that Mr. Allen-Brown has been subjected to further lock downs during the additional 58 days since March 23rd to the sentencing on May 19th.

[40] Mr. Allen-Brown related that his mental health has deteriorated while incarcerated. He is struggling with overwhelming depression and post traumatic stress disorder from the shooting and his living conditions. He described the past year of his life as “the longest and worst” of his “20 years of life”. This experience has been eye-opening in the sense that he used to resent how little his family had growing up but now it seems like “paradise” compared to the conditions he is currently living in.

[41] Mr. Allen-Brown has had plenty of time to reflect on what he will do when he is finally released from custody. He claims that he wants to be better, to change and to finish school. He has dreams and ambitions of who he can be once he is back in society. He is unequivocal that he does not ever want to return to an adult facility where he feels that human beings are treated worse than animals. I have no doubt that he has the best intentions for what he will do once he is released from custody however, his past behaviour is the best predictor of his future conduct.

[42] Each time Mr. Allen-Brown has been released from custody, he presented as a menace to the safety of members of our community. He has engaged in an escalating series of violent crimes culminating in this offence of brutally attacking and disfiguring his girlfriend. There is always hope for rehabilitation. There is hope that this time Mr. Allen-Brown will choose a different path especially after being shot and then being incarcerated in adult facility for the first time. Nevertheless, absent a real investment on his part in significant psychiatric and/or psychological intervention, he clearly poses a significant risk of recidivism and future violence offences.

[43] There are very few factors to mitigate Mr. Allen-Brown’s sentence other than his youth; this is his first adult sentence and his experiences in custody. Counsel urged me to consider that his longstanding history of misconduct and this offence are attributable, in part, to his experiences as a young black man and anti-black racism so these experiences should mitigate his moral responsibility for this offence.

v. Impact of Anti-Black racism on the moral culpability of the offender

[44] Counsel initially intended to secure a specialized “enhanced presentence report” to highlight the unique challenges faced by young black people resulting from the experiences of systemic racism. It would have taken months to organize this report and Mr. Allen-Brown was eager to proceed with the sentencing. As a result, we proceeded without the benefit of this type of specialized report.

[45] Counsel submitted that I could take judicial notice of the factors outlined in a report authored by various experts in a study of “Criminal Justice and the Experience of Black Canadians” that was filed as an exhibit in other sentencings. The Ontario Court of Appeal relied on this report in the seminal decision on this issue: R. v. Morris, 2021 ONCA 680.

[46] The report provides analysis and data to support the view that the backgrounds and negative experiences of black people influences the lens through which they may experience life and perceive opportunities or the lack thereof. It is indisputable that, based on statistical and sociological studies, black students are more likely to be suspended or expelled than white students who engage in the same misconduct. They face structural and institutional forms of discrimination that produce inequities in education and employment. Incarceration rates are disproportionality higher among black offenders. As gatekeepers of the criminal justice system, judges must be acutely aware that overreliance on academic achievement or employment success as mitigating factors can be unintentionally discriminatory. Undoubtedly, stereotypical notions about black people should never influence a sentencing decision.

[47] Unfortunately, I don’t know anything about Mr. Allen-Brown’s cultural roots or his heritage other than he is a young black man from a single parent family. Mr. Allen-Brown’s life has been negatively impacted by various mental health issues throughout his life that have contributed to his inability to function in school and some social settings. He also faced economic challenges and familial instability.

[48] Mr. Allen-Brown’s mother worked hard and tried her best to provide for all of her children. Mr. Allen-Brown’s relationship with his mother was strained and difficult. She tried to cope with his behavioural issues but seemed overwhelmed by them and she felt that she lacked sufficient social supports to assist her with him. Mr. Allen-Brown did not have a positive male father figure in his life to guide him. His father effectively abandoned him, and his older brother was heavy handed in his administration of discipline.

[49] Mr. Allen-Brown problems began in preschool as a result of mental health issues. He was eventually expelled from school because of longstanding behavioural issues in spite of attempts to provide him with an individualized education plan. He was violent at home and at school. He ran away from home. He has been in and out of custody like a revolving door. He lacks any job skills or pro-social friends. Nevertheless, I do not have evidence to connect his history and this offence with overt or systemic racism. Similarly, although Mr. Allen-Brown has had frequent contact with the police, his counsel did not report any negative interactions, racial slurs or being a victim of race related targeted policing.

[50] In R. v. Morris, 2021 ONCA 680, the Ontario Court of Appeal affirmed that systemic and background factor may be relevant when assessing an offender’s degree of moral blameworthiness if these factors provide some explanation for the commission of the offence. The Court observed that:

At para. 79: The social context evidence can, however, provide a basis upon which a trial judge concludes that the fundamental purpose of sentencing, as outlined in s. 718, is better served by a sentence which, while recognizing the seriousness of the offence, gives less weight to the specific deterrence of the offender and greater weight to the rehabilitation of the offender through a sentence that addresses the societal disadvantages caused to the offender by factors such as systemic racism.

At para. 91: There can be no doubt that evidence on sentencing, describing the existence and effect of anti-Black racism in the offender's community and the impact of that racism on the offender's circumstances and life choices is part of the offender's background and circumstances. The evidence is not only admissible, it is, in many cases, essential to the obtaining of an accurate picture of the offender as a person and a part of society.

And finally at paras. 96 and 97: We agree that the concept of causation, as it is used in the substantive criminal law, plays no role when considering the impact of an offender's background or circumstances on sentencing. As one counsel put it, a young offender does not have to show a causal connection between age and the offence before age will be treated as a mitigating factor.

There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender's moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender's colour. Everyone agrees there can be no such discount. [emphasis mine]

[51] Systemic factors unique to racialized people, the lack of a positive black male role model in his formative years and Mr. Allen-Brown’s mental health challenges contributed to his challenges in school, his lack of job experience and may have impacted his choice to support himself by committing crimes. However, there is no evidence before me of overt or systemic racism that explained, mitigated or impacted his choice to brutalize his girlfriend, targeting her face, for no apparent reason. There is nothing that explained his choice not to seek any help for her despite the fact that she was bleeding profusely. There is nothing that attenuates his moral culpability for callously fleeing the scene and leaving her to fend for herself when she was obviously seriously injured.

[52] While I cannot find any connection between overt or systemic racism and Mr. Allen-Brown’s choice to commit this offence, the attenuation of moral culpability is not the only sentencing principle discussed in the Morris decision. Mr. Allen-Brown will eventually be released from custody. Both he and society at large would benefit from a significant investment in resources to provide him with rehabilitative counseling, life skills, occupational training and anything that could promote any potential for his rehabilitation.

[53] Mr. Allen-Brown is a very young adult. There is some prospect that his recent experiences of being shot, and the harshness of conditions in an adult facility may finally convince him to choose a different path in life. A custodial sentence that allows for a lengthy period of probation to support his reintegration into society may assist with the actualization of his aspirations to complete his education and get a job. As the Court of Appeal observed in Morris, supra, at para 81:

…the social context evidence provided a basis upon which the trial judge could give added weight to the objective of rehabilitation and less weight to the objective of specific deterrence. By doing so, the trial judge would not diminish the seriousness of the crime but would recognize that the ultimate sentence imposed must be tailored to the specific offender and the potential rehabilitation of that offender. As long as the sentence ultimately imposed remains proportionate to the offence and the offender, the actual sentence imposed would be a fit sentence.

vi. The circumstances of the offence

[54] Ms. Greentree refused to provide any truthful information about her connection to Mr. Allen-Brown. During the trial, her mother testified that they were involved in a relationship, and her daughter referred to him as her “man”. Mr. Allen-Brown was more forthcoming than Ms. Greentree. He told the investigating officer that he had been involved in “an on again-off again romantic relationship with Avery Greentree for several years”.

[55] Ms. Greentree attended an apartment building during the afternoon of March 25th, 2021, to meet up with her boyfriend, Mr. Allen-Brown. Ms. Greentree was 17 years old, and Mr. Allen-Brown was 19 years old at the time. While Ms. Greentree lied to the police about what happened to her that day, the investigating officer was undaunted. He sifted through hours of recordings from multiple cameras in the building where she was attacked. He successfully pieced together the events that transpired that day through viewing a series of video recordings throughout the building and some eyewitness evidence. The officer’s efforts to discover the truth were impressive and laudable.

[56] The couple were spending time together in someone’s apartment on the sixth floor for about half an hour when Ms. Greentree suddenly exited and left the building. Within minutes, Mr. Allen-Brown exited the same apartment. It was evident that he was looking for Ms. Greentree and they were communicating via cell phone. Eventually, he walked to a back door on the first floor and opened it for Ms. Greentree. Instead of turning towards the elevators to go back up to the sixth floor, Mr. Allen-Brown led Ms. Greentree down a hallway on the first floor.

[57] In his statement to police, Mr. Allen-Brown related that he was familiar with this building because “he has an aunt and friends” who live there. By some remarkable coincidence, the corridor that Mr. Allen-Brown led Ms. Greentree down is one of the few areas of the building that was not captured on the video surveillance cameras. Within seconds of disappearing down this hallway, Mr. Allen-Brown viciously attacked Ms. Greentree. Residents in a nearby apartment heard “loud sobbing” and looked out the peephole into the hallway. Mr. Allen-Brown was standing over Ms. Greentree who was on the floor, and he had his hands around her neck.

[58] Mr. Allen-Brown’s brazen daylight attack of his girlfriend attracted the attention of people in the building on the first floor. When a superintendent walked down the hallway to check on them, Mr. Allen-Brown took out a cell phone and pretended to call 911 for help but he provided the wrong address. Ms. Greentree got up from the floor and they quickly exited the building before anyone could arrive to help her or tend to her wounds.

[59] When she was struck by Mr. Allen-Brown, Ms. Greentree lost some of her teeth, her ear buds and her cell phone. Mr. Allen-Brown did not even show her the smallest kindness of picking up her belongings before they hurriedly exited out the back of the building. She had a scarf, that he was previously wearing, pressed against her mouth to stop the bleeding or cover up her bloodied face. They quickly walked away from the building holding hands. After escorting Mr. Allen-Brown to the bus stop, Ms. Greentree returned to the hallway where she was just beaten to retrieve her cell phone and then left the building again.

[60] When the police arrived on scene minutes later, they located blood spatter on the wall close to the end of that first-floor hallway past the area where Ms. Greentree and Mr. Allen-Brown were last recorded walking together. There was a tooth with blood on it on the floor with some nearby blood droplets and a pair of ear buds that Ms. Greentree was recorded wearing earlier.

[61] One of the responding officers located Ms. Greentree outside the building. He described how she was bleeding profusely from her nose and mouth. He related that some of her front teeth were missing, her nose was swollen, and she had a bump on her eye. The pictures the police took of Ms. Greentree’s face were shocking. She suffered the following injuries:

• Dental injuries including some of her teeth were knocked out and some were forced up into her gums;
• A fractured nose;
• A fractured palate; and
• Multiple facial contusions.

[62] During Ms. Greentree’s video recorded interview, she had a bag of ice that she was alternately pressing on her face and to the back of her head. In addition to the injuries to her face, she sustained an injury to the back of her head.

[63] Considering the extent of Ms. Greentree’s injuries to different parts of her face (eye, nose and mouth) and to the back of her head, I find that the crown has proven beyond a reasonable doubt that Mr. Allen-Brown struck Ms. Greentree a few times, in the face and head. Since he did not have any weapons in his hands when he walked down the hallway and the assault happened within seconds, the only reasonable inference is that he struck her in the face with considerable force while she was initially standing. One blow to her face was so hard that it caused her blood to splatter against the wall. Based on the witness’ description of him standing over her body with his legs apart and his hand around her neck, I find that he continued to either punch her and/or kick her in the face while she was on the floor.

[64] Mr. Allen-Brown lied to the police about his involvement in this offence. He suggested that Ms. Greentree’s injuries were the result of a fall of some kind. It was a patently fallacious explanation for injuries isolated to different parts of her face and to the back of her head.

[65] In terms of the injuries to Ms. Greentree, Mr. Allen-Brown also told the investigating officer that he was aware that she had to have “surgeries” to repair the extensive damage to her face. Even though he was the person responsible for her injuries, he related that he “had been speaking with her every day until his arrest.” As noted earlier in these reasons, he continued to communicate with Ms. Greentree in spite of a court order prohibiting him from doing so while he was incarcerated. There is a substantial concern that Mr. Allen-Brown will attempt to reconnect with Ms. Greentree when he is released from custody. Moreover, she is obviously unwilling or unable to break off communications with him.

[66] Not surprisingly, Ms. Greentree refused to provide any victim impact evidence. Her parents provided significant information about their daughter’s difficult road to recovery and the impact this offence has had on their whole family. During the trial, Mrs. Greentree advised that because of Mr. Allen-Brown’s antecedents, his affiliates, and the brutality of the attack on her daughter, their family is very fearful that they will suffer reprisals for testifying against him. In addition, she provided the following information in a victim impact statement:

This painful and disfiguring attack on our daughter by someone she believed cared about her has damaged her so much, it has put her young life on hold. The mental scars this has left on her will have an everlasting impact on her young life.

Avery has gone through 3 different surgeries with more to go. She has had bone grafts, tissue repair, broken nose, and now will have to have implants changing the way she looks forever. Avery will never be able to forget what this monster did to her each time she looks in the mirror for the rest of her life, she will never look the same.

The financial burden on our family is astonishing, we are already close to 10 thousand dollars in medical and dental bills for her, trying to restore a 17-year-old girl’s face!

[67] Avery Greentree will have a constant reminder of this brutal assault for the rest of her life. The Greentree family has suffered emotionally, psychologically, and financially because of this crime. They have been robbed of any sense of safety in their home and fear for the future of their young daughter. Mr. Allen-Brown will not have the means to pay restitution for this crime. Moreover, a restitution order may only serve to exacerbate the family’s concerns for their safety.

[68] The aggravating facts include brutalizing an intimate partner, callously leaving her to fend for herself while she was bleeding and in pain, the lasting injuries to her and the overwhelming impact this offence has had on her whole family.

C. Legal analysis

i. The purposes and principles of sentencing

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

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[70] Depending on the nature of the offence, a Court may focus on specific principles of sentencing as the most important factors to guide the Court’s decision. Section 718.2 of the Criminal Code specifically requires that a court sentencing an offender shall take into consideration the following deemed aggravating circumstances:

(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner. (ii.1) evidence that the offender, in committing the offence, abused a person under the age of 18 years. (iii.1) evidence that the offence had a significant impact on the victim considering their age and other personal circumstances including their health and financial situation.

[71] All these statutorily aggravating factors are present in this case. In addition, over 30 years ago, in R. v. Inwood, 1989 ONCA 263, [1989] O.J. No. 428, the Supreme Court of Ontario (as it was then called), emphasized the importance of denunciatory and deterrent sentences for violence against an intimate partner.

Domestic assaults are not private matters, and spouses are entitled to protection from violence just as strangers are. This does not mean that in every instance of domestic violence a custodial term should be imposed, but that it should be normal where significant bodily harm has been inflicted, in order to repudiate and denounce such conduct.

[72] For decades, the Ontario Court of Appeal has repeatedly stressed the seriousness of partner abuse crimes and the importance of sentencing these offenders with the principles of denunciation and deterrence in mind. In R. v. Ibrahim, 2011 ONCA 611, the Ontario Court of Appeal stressed (at para. 15):

The appellant is a mature first offender who committed a serious assault on his spouse, causing her disfiguring injuries by striking her with a shovel. The assault occurred in the context of a crumbling and acrimonious domestic relationship. The sentencing principles that exert the greatest influence in determining the length of the sentence and the manner in which it should be served are denunciation and deterrence. The sentence imposed in cases such as this must also promote a sense of responsibility among spousal abusers and an acknowledgement of the harm done not only to their immediate victims, but equally to the community at large.

[73] Mr. Allen-Brown no longer enjoys the protections of the Youth Criminal Justice Act. Both general and specific deterrence are important guiding sentencing principles. An unequivocal message must be sent, through this sentence, to him and other like-minded offenders that our courts will not countenance this type of egregious partner violence. The sentence must nonetheless be fair and reflect other principles of sentencing including any potential for rehabilitation. In order to arrive at a just sanction, counsel and the crown urged me to consider the sentences meted out in other cases.

ii. The principle of parity

[74] In addition to the guiding sentencing principles, subsection 718.2 (a) of the Criminal Code codified the long-standing principle of parity that:

A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[75] While parity and proportionality are important and laudable goals, each individual case is often so unique that it is difficult to find cases with similar offences with similar offenders. Ultimately, considering the unfortunately countless ways to commit any offence, the distinctive victim impact and the individuality of each offender, it is often challenging to find comparable cases. As Chief Justice Lamer stated in R. v. M. (C.A.), 1996 SCC 230 at paragraph 92:

...Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

[76] Even though sentences are determined on a case-by-case basis, precedents that discuss sentence ranges for these types of offences provide some guidance as to the appropriate sanction, but they do not direct a specific sentence. It is important to be cognizant that a sentence may be reflective of the unique facts in each case and the positions taken by the crown and counsel.

[77] The wide range in sentences for aggravated assaults was extensively reviewed by Justice Code in R. v. Tourville, 2011 ONSC 1677, [2011] O.J. No. 1245 (Ont.S.C.J.). After reviewing multiple decisions, Justice Code attempted to identify the customary range for sentences for aggravated assault depending on the circumstances of the offence and the offender (at paras. 27 to 30):

The cases disclose a wide range of sentences. At the bottom end is an exceptional case like R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.) where an Aboriginal offender received a suspended sentence and three years probation on her guilty plea to aggravated assault. She was twenty-six years old with no prior adult record. She had used a broken beer bottle in the assault, during a bar room dispute, causing serious facial lacerations to the victim. The "Gladue report" disclosed a very difficult upbringing in a violent and abusive home, leading to alcoholism and drug abuse. By the time of sentencing, she had obtained employment and was making real progress in counseling for her substance abuse problems. Some of these features are not dissimilar to the case at bar.

In the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less a day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force. See: R. v. Chickekoo (2008), 79 W.C.B. (2d) 66 (Ont. C.A.); R. v. Moreira, 2006 ONSC 9709, [2006] O.J. No. 1248 (S.C.J.); R. v. Basilio (2003), 2003 ONCA 15531, 175 C.C.C. (3d) 440 (Ont. C.A.).

Paragraph 29 omitted

At the high end of the range are cases where four to six years imprisonment have been imposed. These cases generally involve recidivists, with serious prior criminal records, or they involve "unprovoked" or "premeditated" assaults with no suggestion of any elements of consent or self-defence. See: R. v. Scott, [2002] O.J. No. 1210 (C.A.); R. v. Thompson, [2005] O.J. No. 1033 (C.A.); R. v. Vickerson (2005), 2005 ONCA 23678, 199 C.C.C. (3d) 165 (Ont. C.A.); R. v. Pakul, [2008] O.J. No. 1198 (C.A).

[78] I reviewed a number of cases provided by counsel. However, I find that they were distinguishable because there were various factors that mitigated the sentences such as the lack of a related record, a guilty plea and/or the sentence imposed was responsive to the position advocated by the parties. For example: R. v. Broderick, [2016] O.J. No. 168 (Ont.C.J.); R. v. Byford, [2016] O.J. No. 3413 (Ont.S.C.)

[79] To support his sentencing position of 12 months incarceration less time served, counsel relied significantly on one particular decision: R. v. Sanchez, [2019] O.J. No. 4675 (Ont.S.C.J.).

[80] The circumstances of the offence in that case were similar insofar as the accused attacked his girlfriend, grabbed her by the hair, threw her to the ground and punched and kicked her. She suffered a broken orbital bone that required surgery and a cut under her eye. He also cut her arm with a knife and the wound required nine stitches to close it. However, the circumstances of the offender were entirely different than this case.

[81] The accused was 19 years old and had no prior record. He pled guilty after the preliminary hearing and accepted responsibility for the offences, demonstrating genuine remorse through his actions, and a letter of apology. The attack was described as completely “out of character” for him and he had letters of support. The accused attributed some of his conduct to being under the influence of alcohol so he had taken whatever rehabilitative steps he could while in custody. Finally, the court’s decision was informed, in part, by the positions advocated by the parties and the crown only asked for a sentence of two years incarceration.

[82] The Sanchez decision is factually distinguishable. Moreover, while I acknowledge that the sentence ranges contemplated in Tourville, supra are not straightjackets and there were exceptionally mitigating factors, I respectfully disagree with the Court’s classification at paragraph 11 of such a ruthless assault, with lasting severe facial injuries that necessitated surgery to repair and a deep cut that required stitches, on an intimate partner in the privacy and safety of her own home, despite these mitigating factors, as falling at the “low end of the range of custodial sentences”.

[83] I agree with the crown that the facts in this case fall within the high end of the range of cases contemplated by Justice Code. A fit sentence is that of a penitentiary sentence in the range of 4 to 5 years. To determine where the sentence should fall in that range, I relied on the following cases:

R. v. Pitkeathly, 1994 ONCA 222, [1994] O.J. No. 546 (C.A.): “This was an appeal from a sentence of eight years following a conviction for aggravated assault. The accused shared a live-in relationship with the victim for four months. Both had been drinking. An argument arose as to the future of their relationship and the accused lost control of his vehicle which collided with a utility pole. He blamed the victim and he assaulted her. She sustained numerous fractures resulting in permanent disfigurement and post-traumatic stress disorder. The 29-year-old accused had no record for violence and had a reasonably good work record. He pleaded guilty after a preliminary inquiry and a voir dire.” The injuries to the victim’s face were devastating including fractures to various parts of her jaw, eye sockets, cheek bones, nose, wrist and five missing teeth all of which required extensive surgeries. The accused had no record. The Court of Appeal upheld the sentence of eight years imprisonment, although it was severe, they found that (at para 16):

In our opinion, the appropriate sentence in this case is one which should act as a specific deterrence for the appellant and a general deterrence for other men as well as reflecting society's revulsion and unequivocal disapproval of the appellant's conduct.

R. v. Bell, [2015] ONCJ 62: The 28-year-old accused proceeded to trial and was found guilty of aggravated assault. He attacked his domestic partner which resulted in her suffering a fractured wrist with a ruptured tendon, a chipped tooth, black eyes and other injuries. He chased her afterwards and tried to prevent her from obtaining assistance for her injuries. The defendant had a long criminal record including prior convictions for domestic assault. The crown requested a sentence of 3 years less PTC and counsel requested a total sentence of 16 and a half months or 9 months on top of PTC. The court found it mitigating that “no weapons or extreme physical force used (no punching or kicking)” and, “by all reports including the complainant’s, the defendant was a good person who suffered from a substance abuse issue”. He was sentenced to 19 and a half months incarceration in total to be followed by a period of probation of 18 months and ancillary orders.

R. v. Dockery, [2018] ONCJ 797 affirmed 2020 ONCA 278: The attack on the victim was brazen and captured on a surveillance camera. Although the accused pled guilty, the Court had to engage in a Gardiner hearing. During an unprovoked assault, he slapped his girlfriend’s face, grabbed her by the hair, pushed her to the ground and stomped on her face. She was rendered unconscious. The victim had to have surgery on her jaw since it was broken in multiple places. She also lost some teeth. She was severely traumatized and suffered lasting emotional and physical injuries and financial losses. The crown sought a sentence of five years and defence submitted a sentence of three years was appropriate. The accused was 49 years old and the father of 6 children. He had a difficult background. He had an extensive criminal record which included numerous crimes of violence against women. There was however, a 10 year gap in his record. He was sentenced to five years, less presentence custody. The Court declined to mitigate his sentence further because of the time that he spent locked down in the remand facility.

R. v. Nobbs, [2020] O.J. No. 5345 (Ont.S.C.J.): Mr. Nobbs verbally berated and threatened the victim, his spouse. He choked her and struck her with his hand at least five times. The victim sustained a fractured jaw in three places and bleeding because of the assault. She also lost a tooth. She required surgery and hospitalization, which was followed by a long period of recovery and rehabilitation. She suffered residual physical and emotional effects of the assault. The accused was 53 years old with no record. He had a positive background and provided multiple letters of support. The crown sought a sentence of three and a half years and counsel sought a conditional sentence. The accused was sentenced to two and a half years.

[84] This review of some sentencing precedents for aggravated assaults is helpful in terms of providing some guidance with respect to the application of the sentencing principles to the specific facts of a case. The one distinguishing factor in this case is the offender’s youth.

iii. The principle of restraint

[85] While Mr. Allen-Brown has a significant related criminal record, this is his first conviction as an adult, and he was very young when he committed this offence. In R. v. Borde, 2003 ONCA 4187, [2003] O.J. No. 354 at paras. 35 and 36, the Ontario Court of Appeal dealt with a similar offender and stressed that:

Aside from the gravity of the appellant's crimes, the overwhelming factor is his youth. In my view, the trial judge erred in principle in focusing almost exclusively on the objectives of denunciation and general deterrence, given the appellant's age and that this was his first adult prison sentence and his first penitentiary sentence. The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives. The trial judge's repeated references to the need to send a message and his statement that the sentence was meant to deter others who resort to guns make it clear that general deterrence and to a less extent denunciation determined the length of the sentence. In my view, this error led the trial judge to impose an excessive sentence for the aggravated assault.

On the other hand, I agree with the trial judge that this case called for a penitentiary sentence notwithstanding the appellant's age. His very serious youth record, his failure to respond to other measures and his repeated violation of court orders indicated that specific deterrence would be an important objective. The string of offences, two involving use of a loaded handgun, required a lengthy sentence. These circumstances, however, had to be balanced against the appellant's age and his chaotic background as part of a dysfunctional family being raised in poverty by a mother who unfortunately had few parenting skills and suffered from a mental illness. There was also some reason for optimism about the appellant's chances for rehabilitation. The pre-sentence report indicates that while the appellant did not respond particularly well to community-based programs, he did do well in a more structured environment. [emphasis mine]

[86] I have considered the principle of restraint, Mr. Allen-Brown’s youth, his history, life challenges and that this will be his first adult sentence. In light of his related and lengthy record, the fact that he was serving a youth custodial sentence in the community at the time and the numerous aggravating factors, the paramount principles of denunciation and deterrence demand a lengthy custodial sentence despite these mitigating considerations.

[87] Mr. Allen-Brown’s lack of insight into the seriousness of this offence and his continued contact with the victim cause me great concern about his potential for rehabilitation. The mere fact that he expected his relationship with Ms. Greentree to continue after he viciously beat her reflects his true character, a lack of empathy and lack of any true remorse. In R. v. Omoragbon, 2020 ONCA 336, [2020] O.J. No. 2381 at para 24, the Ontario Court of Appeal addressed an appeal from a similarly situated youthful offender and found that:

We do not gainsay the importance of the sentencing objective of rehabilitation in respect of youthful offenders. But its influence on the ultimate determination of a fit sentence is a variable, not a constant. In the absence of any realistic rehabilitative prospects, its impact on the nature and length of a sentence may be attenuated.

[88] While there is still some hope for Mr. Allen-Brown’s rehabilitation considering his youth, the impact of this factor on the overall sentencing is attenuated by the circumstances of this offence, Mr. Allen-Brown’s antecedents and the lack of any investment on his part in counseling during periods of community supervision prior to this offence.

[89] In R. v. Morris, supra, at paragraph 130, the Court of Appeal explained that the principle of restraint should not be narrowly considered just in terms of assessing the length of incarceration. Courts should also consider whether rehabilitation can be better addressed by a shorter period of incarceration if it allows for a period of probation to assist with reintegration into the community and some assurance of counselling:

Restraint also operates in another way. Even if the sentencing judge decides incarceration is necessary, there is still a question of how long the sentence should be. A sentence of more than two years excludes the possibility of probation: Criminal Code, s. 731. If the sentencing judge determines that the range of sentence for the particular offence and offender includes a two-year sentence and that probation would assist the offender's rehabilitation, the restraint principle favours imposing a sentence of no more than two years, even if a somewhat longer period of incarceration would also fall within the appropriate range.

And para 182: We also agree with the trial judge's conclusion that a term of probation was necessary. Probation provided for an extended period of supervision and access to culturally-sensitive counselling. Both had the potential to further Mr. Morris's rehabilitation and provide added long-term safety for the community. As probation can only be imposed if a period of incarceration is no more than two years, the restraint principle favoured a sentence of two years or less: see Criminal Code, s. 731.

[90] If I sentence Mr. Allen-Brown to the lengthiest available reformatory sentence of two years less a day, in addition to any credit for the time he has already served and some mitigation for the conditions in which he served his pretrial custody, I can also sentence him to the maximum period of probation of three years.

[91] A three-year probation order will address the ongoing protection of Ms. Greentree and her family from Mr. Allen-Brown once he is released from custody. I can mandate frequent reporting when he is first released from custody to ensure that he is a priority for probation. In addition, if Mr. Allen-Brown is sincere about his desire to change his life, he will have plenty of resources to do so with terms of probation that will require him to participate in job training programs, complete high school, obtain life skills counseling, the PARS program, psychiatric and psychological assessments and anything else recommended by his probation officer.

iv. Duncan credit and the appropriate sentence

[92] I was provided with a number of reports with respect to Mr. Allen-Brown’s stay in custody as well as a detailed letter from Mr. Allen-Brown outlining the horrible living conditions in the Central East Correctional Centre. After hearing from a correctional official and reviewing a nurse’s summary, as noted above, I accept that some of Mr. Allen-Brown’s self reported treatment may have been exaggerated. However, I also accept that other parts of his letter reflected his experiences, his perspectives and the deplorable conditions that he suffered while in custody especially as a person whose mobility is limited. His recollections of his experiences are influenced by inhumane conditions and lock downs stretching over days and shockingly weeks at a time.

[93] In R. v. Marshall, 2021 ONCA 344, [2021] O.J. No. 2757 (Ont.C.A.), Justice Doherty explained at paragraphs 50 and 51 that:

"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.

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.

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.

[94] After balancing the youthfulness of this offender and the aggravating circumstances of the offences, without any mitigation for the conditions in which he served his presentence custody, I have determined that a fit sentence that would reflect the principles of sentencing is a period of incarceration in the range of 4 years or 48 months.

[95] Mr. Allen-Brown has already been in custody for 384 days which is the equivalent of 576 days or 19 months and 6 days. His sentence will be mitigated by a little less than 4 months and 24 days to reflect the frequent lock downs, the conditions in which Mr. Allen-Brown served his pre-trial custody and the principle of restraint in terms of ensuring that I can order a period of three years of probation.

[96] The balance of the sentence left to serve is two years less one day. He will also be sentenced to three years of probation to follow his release from custody. The schedule of conditions is attached to this judgement. There will be a section 109 weapons prohibition order for life and a DNA order. Finally, there will be a 743.21 order prohibiting him from communicating while in custody with Avery Greentree or any member of her immediate family.

D. Conclusion

[97] This is a tragic case. A teenage girl suffered lasting physical injuries and emotional trauma. Ms. Greentree’s reaction to this abuse of standing by her man despite the trauma he inflicted upon her speaks to the destructive cycle of domestic violence. Despite being beaten and disfigured, she risked perjury charges, contempt citations and the emotional stability and safety of her family to shield a man who does not deserve her love or protection. I can only hope that she will discover her self-worth and that she was truly a victim of unjustifiable brutality.

[98] Mr. Allen-Brown is only 20 years old. I hope his words of remorse and aspirations to improve were not hollow statements to gain a mitigated sentence. He will have the benefit of a lengthy adult probation order with frequent reporting conditions when he is released from custody to prove to himself that he is worth more than being institutionalized. It is up to him to take all available counselling and seek out resources to alter his path in life.

[99] I strongly recommend that Mr. Allen-Brown be immediately transferred to the Ontario Correctional Institute or a similar facility so that he can serve the balance of his sentence in a provincial facility where he will have access to counseling programs and better conditions while serving his sentence.

Schedule I

Probation for 3 years

Statutory conditions:

• Keep the peace and be of good behavior;
• Appear before the court when required to do so;
• Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation.

Reporting:

• Report in person or by telephone to a probation officer:
  • Within 7 working days your release from custody;
  • and for the first 6 months of your probation, you are to report at least weekly to ensure that you are participating in any counselling, or any rehabilitative programs as directed;
  • and thereafter at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision
  • Your reporting requirements will end when you have satisfied your probation officer that you have:
    • Completed all your counselling and rehabilitative programs.
  • You must cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer upon request.

Communication and attendance terms:

• Do not contact or communicate or associate in any way, directly or indirectly, by any physical or electronic or other means with Avery Greentree or any member of her immediate family for any reason;
• Do not be within 250 meters of any place where you know Avery Greentree or any member of her immediate family to live, work, go to school, frequent or any place that you know the person to be;

EXCEPT

• While attending at required court appearances;
• Do not to post any information about, depictions of, recordings of or photographs of Avery Greentree or any member of her immediate family on any social media site.

WEAPONS AND PERMITS

• Do not possess any weapons as defined by the Criminal Code.

Counselling and Treatment

• Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your probation officer and complete them to the satisfaction of your probation officer including but not limited to:
  • The PARS program;
  • Psychological or psychiatric issues;
  • Life skills;
  • Financial counseling;
  • Employment skills training or employment programs or educational programming to obtain employment; and
  • If available, culturally sensitive programs with positive black male role models.
• You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
• You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.