R. v. Reid, 2022 ONCJ 653
CITATION: R. v. Reid, 2022 ONCJ 653
DATE: 2022-02-24
Toronto
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
ANDRE REID
Before Justice Mara Greene
Reasons for Judgement released February 24, 2022
B. Janzen for the Crown A. Page for Mr. Reid
M.B. Greene J.:
[1] On March 9, 2021, at the conclusion of a preliminary inquiry, Mr. Reid entered a plea of guilty to robbery while armed with a firearm, possession of a restricted weapon, namely a Glock 22 firearm, when prohibited from doing so and possession of a prohibited or restricted weapon, namely the Glock 22 firearm. Since the guilty plea, this matter has been delayed significantly. This is largely due to the fact that Mr. Reid’s lawyer stopped working as defence counsel, so Mr. Reid had to retain new counsel. Like many of us during this pandemic, new counsel’s schedule was very busy and the earliest date available was some ten months after the plea was entered. The sentencing hearing took place in January 2022. Crown counsel sought a sentence of eight years less pre-sentence custody. Mr. Reid seeks a sentence of six years less six months for a breach of his section 9 rights when he was not brought to court within 24 hours of his arrest, less 309 days for Downes credit and additional time for presentence custody. Essentially, Mr. Reid is seeking a further two to three years in custody.
Factual Background
(i) The Offences
[2] On December 26, 2019, Mr. Reid and four others robbed Mr. Saba in his residence. A co-accused, Ms. Benmore, attended at Mr. Saba’s residence earlier in the evening as she was known to Mr. Saba. She and another female friend, Ms. Penteado, let Mr. Crawford and Mr. Tyndale into the building. Mr. Benmore and Ms. Penteado then returned to Mr. Saba’s unit.
[3] According to Mr. Reid, Ms. Penteado telephoned him from Mr. Saba’s condo and told him that Mr. Saba had agreed to pay her for her time in the condo but was now refusing to pay her. Ms. Penteado asked Mr. Reid to come to the unit and help get the money owed to her. He knew that he may have to use violence to collect the money for Ms. Penteado.
[4] At 10:40pm, Mr. Crawford let Mr. Reid into the condo lobby. Mr. Crawford, Mr. Reid, and Mr. Tyndale then went up to Mr. Saba’s unit. According to Mr. Reid, when he arrived, he saw a woman running towards the elevator. He then entered the unit with the two other men. One of males was carrying a firearm and demanded that Mr. Saba produce watches from his watch collection. Mr. Saba, fearing for his life, complied with the demand. One of the males told the person with the firearm to shoot him. Mr. Tyndale then put a towel over Mr. Saba’s head. The instruction to shoot him was then repeated. One of the robbers then punched Mr. Saba in the face.
[5] Several items were taken from Mr. Saba, including a Breitling Watch valued at $18,000.00, a Louis Vuitton handbag with banking cards, credit cards and identification in it, and keys to Mr. Saba’s vehicle. According to Mr. Reid, Ms. Benmore stole these items. Mr. Reid admitted that he was still a party to an armed robbery because of his attempts to steal additional items once inside the residence and seeing his co-accused pointing a firearm at Mr. Saba.
[6] Mr. Saba suffered a laceration to his face, bruising to his head and cuts to his feet from broken glass.
[7] At 11:02 pm on December 26, 2019, Mr. Saba called 911. Mr. Reid was arrested at 12:20 am on December 27, 2019. He had been in a cab with one of his co-accused, Mr. Crawford. Mr. Reid was in possession of a loaded firearm at the time. He left the firearm in the cab and attempted to flee but police managed to stop him. The firearm in Mr. Reid’s possession was a Glock G22C .40 Caliber semi-automatic pistol. Mr. Reid did not have a licence nor was he authorized to possess a firearm. Moreover, at the time, Mr. Reid was bound by a weapons prohibition order.
[8] Mr. Reid and his co-accused were taken to 52 division for further investigation. The police arrested eight people that morning, four of whom were charged with the home invasion robbery of Mr. Saba.
[9] In the early morning hours of December 27, 2019, the police knew that they were charging Mr. Reid with the armed robbery of Mr. Saba, nonetheless, Mr. Reid was not taken to court that day. He was only transported to the courthouse at 8:30 am the following day, December 28, 2019, some 32 hours after his arrest.
[10] Mr. Reid denied planning this robbery or being part of the original robbery plan. Instead, it was his position that he attended while the robbery was already in progress and became a party at that point in time.
(ii) Mr. Reid
[11] Mr. Reid was born in 1982 in Jamaica. Mr. Reid is presently 39 years old. Mr. Reid’s parents moved to Canada and the United States when he was around six or seven years old. As a result, Mr. Reid was raised by his grandma and his aunt for a number of years. When he was 12 years, old, Mr. Reid moved to Canada.
[12] Once in Canada, Mr. Reid lived with is father and stepmother in the Brampton area. His mother lived in New York. Mr. Reid settled in with his father, but by the time he was in grade 11, he started to get into trouble. He dropped out of school and moved out of his father’s house. While in custody for other offences, Mr. Reid obtained his high school diploma.
[13] Mr. Reid advised that during his time living in Brampton he felt and experienced racism from the Peel police. He was regularly “shaken down” by police from the age of 15 onwards. Mr. Reid recalled one officer telling him that they were going to “get all the N- off the street before the summer started”.
[14] When Mr. Reid was 19 years old, he was a victim of an attack. He was stabbed in the neck.
[15] Mr. Reid has worked over the years. His worked at Zellers, the airport and at a car detailing place.
[16] Mr. Reid has an extensive criminal record that starts in 2000 and runs consistently until his convictions in 2009 that led to what was effectively an 8 or 9 year sentence for a series of convictions for firearms and robberies.
[17] Mr. Reid has spent much of his adult life in custody. He was released on day parole in September 2013. In 2014 he was breached and placed back in custody for 20 months. In 2015 he was released again on day parole. Upon this release, Mr. Reid worked building sets for television shows. He did this until 2018. In 2018 Mr. Reid started working in renovation and playing in a soccer league.
[18] Mr. Reid has a daughter. She was born in September 2020 while Mr. Reid was on bail for these offences.
[19] Numerous letters of support were filed for Mr. Reid. It appears that everyone in his world thinks that Mr. Reid has changed and is committed to a pro-social lifestyle
Analysis
[20] Crown counsel has argued that the appropriate sentence in the case at bar is one of eight years. In reaching this number, Mr. Janzen has already taken into consideration the conditions of pre-trial custody, the house arrest release that Mr. Reid was on for 600 days and the breach of section 9 of the Charter due to noncompliance with section 503 of the Criminal Code. Ms. Page, counsel for Mr. Reid, argued that a further period of two to three years incarceration is appropriate in the circumstances
[21] In assessing the appropriate sentence I must first be mindful that the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is best determined by considering all the aggravating and mitigating factors while keeping in mind the objectives of sentencing which include:
a) General and specific deterrence
b) Denunciation
c) Rehabilitation
d) Reparation to society and/or the victim
e) Separation from society where necessary
f) The need to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.
[22] Generally, the Criminal Code does not place these objectives in any hierarchy of importance. How much weight a sentencing judge places on any given objective will depend on the facts of each case. As was recently stated in R. v. Morris, 2021 ONCA 680 “The individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender”. Mr. Reid has been convicted of violent crimes involving firearms. The Appellate courts have consistently repeated that the objectives of deterrence and denunciation are paramount. While Mr. Reid is still relatively young and his prospects for rehabilitation are good, given the prevalence of gun violence in Canada today, rehabilitation must take a back seat to deterrence and denunciation.
[23] In assessing the gravity of the offence, there are a number of aggravating factors that must be considered. They include the following:
Mr. Reid has a lengthy record with similar offences on it, including robberies and firearms. Having said that there is a meaningful gap in his record.
Mr. Reid had a restricted firearm in his possession.
The robbery was planned – albeit Mr. Reid denies being involved in the planning and there is no evidence before me to contradict his evidence on this point.
The robbery involved a home invasion – a statutorily aggravating factor
A firearm was used in the robbery (albeit this is accounted for in the mandatory minimum sentence).
There were multiple people involved in the robbery
Additional violence was used on Mr. Saba – beyond just the robbery, albeit not by Mr. Reid.
The gun belonging to Mr. Reid was loaded with 14 rounds of ammunition in it.
The gun was pointed at Mr. Saba.
Mr. Reid was bound by a weapons prohibition order.
The harm suffered by Mr. Saba.
[24] There are also some meaningful mitigating factors. They include:
the fact that Mr. Reid entered a plea of guilty to the offences.
that he is taking responsibility for his actions.
he has support in the community.
Mr. Reid is working hard to change his behaviour which has been witnessed by family members
Mr. Reid has insight into his criminal activities.
Mr. Reid is a committed father to his daughter
Mr. Reid will be serving his sentence in the penitentiary during the pandemic when many institutions are suffering from staff shortages which inevitably results in additional losses of liberty while in custody. For at least the beginning portion of his sentence, the sentence will be harsher in practice than if he was serving his sentence when were not in the midst of a pandemic.
[25] I must also consider the fact that Mr. Reid is a Black Canadian. Mr. Reid, through his counsel, told me about the racism he has experienced over the years. He presented no evidence linking his present criminal acts to these earlier events. In R. v. Ahmed, unreported, December 10, 2021. Schreck J. concluded that a causal connection was not necessary. Schreck J. stated at paragraph 28,
I agree that the type of causal connection described in Morris has not been established in this case. However, no such casual connection is required in order to make the consideration of systemic racism relevant to an offender’s degree of responsibility: Morris, at para. 94. In this case, Mr. Ahmed had a disadvantaged background. He was born in a war-torn country, came to Canada as a refugee, grew up in poverty, was bullied in school, and did not complete his education. Many of these types of disadvantages can be directly linked to systemic anti-Black racism, as was described in a report filed in Morris, entitled “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario.” Although no such report was filed in this case, the Court in Morris observed at para 42 that much of its contents are properly the subject of judicial notice. In fact, the Court stated that it “bears reading and re-reading by those called upon to prosecute, defend, and sentence Black offenders, particularly young Black offenders”: Morris, at para. 43.
[26] In the case at bar, I have Mr. Reid’s information about being exposed to racism. I also take judicial notice of the presence and prevalence of anti-black racism in our society and the over representation of black men in our criminal justice system. This is a relevant factor to consider on sentencing. This does not mean that Mr. Reid should not be held responsible for his actions, As Schreck J. went on to note in Ahmed, and I make the same observation here, Mr. Reid still made the decision commit this robbery.
Range of Sentences Normally Imposed
[27] Having identified the relevant mitigating and aggravating factors, I now turn to the range of sentence normally imposed for similar offences.
[28] The range of sentences for robberies is very broad. This accounts for the broad range of activities associated with a robbery. In the case at bar, the robbery of Mr. Saba is best described as a home invasion robbery with a restricted firearm. Mr. Reid and two other males entered his condominium and at gunpoint robbed him of his belongings. In addition to the threat of the firearm, one robber told the person holding the firearm to shoot and one of the robbers punched Mr. Saba multiple times even though Mr. Saba was being compliant with their demands. Mindful that a home invasion robbery is a statutorily aggravating factor, the range of sentence normally imposed for this kind of offence is 4-5 years at the low end and 11-13 years at the upper end ( R. v. Mills, [2014] O.J. No. 1568 at paragraph 76 (SCJ). Offences involving a home invasion and firearm, often involve sentences in excess of nine years (R. v. Mills, supra, at paragraph 77). In R. v. Willmott [2015] O.J. No. 2100 (C.A.), the appellate court identified the range of sentence for home invasion robberies as being anywhere from four to thirteen years.
[29] In R. v. Mills, supra, Mr. Mills received a sentence of six years for his role in a home invasion robbery with a loaded firearm where the firearm was in fact discharged. Like Mr. Reid, Mr. Mills was not involved in the planning of the robbery. Instead, he joined the group of robbers after the plan had been made. In some respects, the robbery that Mr. Mills was involved in was more aggravating as a firearm was actually discharged and the robbers were masked. Having said that, Mr. Mills did not set foot in the residence. He remained in the getaway car to help with the escape. Mr. Reid, on the other hand, was inside the residence and fully participated in the robbery, albeit was not planning on committing the robbery when he first arrived. Mr. Hylton, one of Mr. Mills’ co-accused and the offender who fired the gun at one of the victims during the robbery, received a ten-year global sentence and the third co-accused, Mr. Dennis, who actively committed the robbery but did not fire the gun received an eight-and-a-half-year sentence. Similar to what I found in R. v. Crawford, it is my view, Reid’s overall culpability falls somewhere in between Mr. Mills and Mr. Dennis.
[30] In R. v. Rose, [2013] O.J. No. 1257 (SCJ), Mr. Rose was convicted of a home invasion robbery as a party, not a principal actor. He received a six-and-a-half-year sentence for his role in the robbery. In R. v. Goulbourne, [2019] O.J. No. 3020 (C.A.) a sentence of seven and a half years for a home invasion robbery with an imitation firearm was upheld. The facts of Mr. Goulboune’s robbery are arguably more aggravating in that in addition to being threatened at gun point by one of the robbers, Mr. Goulbourne punched, kicked and choked the victim. I should note, however, that the sentence of seven and a half years took into account the principle of totality as Mr. Goulbourne was already serving a sentence for a bank robbery when he was sentenced for this home invasion robbery.
[31] Ms. Page provided me with two authorities to consider on the appropriate range of sentence. In R. v. Clark, 2020 ONSC 3878, 2020 OJ No. 2991 (SCJ) a sentence of five years was imposed on Mr. Clark for an armed robbery. Mr. Clark arrived at the robbery after it had already begun. He attempted to continue the robbery but fled when a third party arrived on scene. Mr. Clark and his friends then robbed a second victim at a nearby gas station. At the time of his arrest, Mr. Clark was armed with a firearm that had its serial number removed. While there are some notable similarities between Mr. Clark’s offences and Mr. Reid’s offences, one key difference is that Mr. Reid was involved in a home invasion robbery. Home invasion robberies normally attract higher penalties because they are more serious offences. I further note that Mr. Clark was only 18 years old at the time of his offences. While he had a youth record, this was his first adult conviction.
[32] The other case referred to by Ms. Page was R, v, Bell, 2020 ONSC 2632, 2020 O.J. No. 2317 SCJ. Mr. Bell entered a plea of guilty to a series of gun charges. The facts in support of the plea included what seems to be a home invasion robbery of sorts, but Mr. Bell was not sentenced for a home invasion robbery, nor did the sentencing judge address the range of sentences for robberies. Instead, the focus of the sentencing was on the firearm offences. At the time of the offence, Mr. Bell was 22 years old and had a criminal record that included a prior gun related conviction. Mr. Bell had a very traumatic childhood including witnessing a murder when he was 11 years old and having parents who were both addicts. Mr. Bell also had significant health issues. Much of the sentencing decision was focused on these heath issues and the impact this had on the ultimate sentence. Mr. Bell received a sentence of four years and seven months in custody. In my view, Mr. Reid stands in a very different position than Mr. Bell. Firstly, he pled guilty to a home invasion robbery, a far more serious offence than the ones that Mr. Bell was being sentenced. Secondly, Mr. Bell’s background is filled with trauma with serves to reduce his overall moral culpability. Thirdly, Mr. Bell had a host of health issues that would impact his time in custody.
[33] In my view, when I consider the aggravating and mitigating factors outlined above, the range of sentence normally imposed for similar offenders and similar offences as well as the objectives of sentencing, a sentence in the range of six to seven years would be appropriate, with Mr. Reid falling at the lower end of that range. Had Mr. Reid been part of the planning and more involved at the beginning of the robbery, a higher sentence would have been required. Given the agreed statement of fact that indicates that Mr. Reid was not part of the planning and did not originally arrive at Mr. Saba’s condominium with the intention of being a party to an armed robbery, the lower end of the range is appropriate.
Additional Mitigating Factors that serve to reduce the overall sentence
[34] There are three other mitigating factors that serve to reduce the overall sentence, they include (i) the Charter breach, (ii) credit for strict conditions of release pending sentence and (iii) credit for pre-sentence custody. Each of these mitigating factors in my view serve to reduce the overall sentence to be imposed in this case.
Remedy for the s.9 violation
[35] Mr. Tyndale, Mr. Crawford, Mr. Reid and four others were all arrested on December 19, 2019, in relation to the robbery on Mr. Saba. Mr. Reid was not brought to court within 24 hours of his arrest. I found in R. v. Crawford, 2021 ONCJ 740, December 14, 2021, that the delay in bringing Mr. Crawford to court was caused by the officer’s misunderstanding of what paperwork had to be completed prior to bringing the accused persons to court. I further found that the officer prioritized his paperwork over Mr. Crawford’s liberty and the requirement that he be brought to court within 24 hours. It was my view that the delay in transporting Mr. Crawford to court was not an attempt to induce a confession or interrogate the accused parties as none of them were interviewed during this time. I see no factual or legal reason to make a different finding in this case. I therefore find that Mr. Reid’s rights were violated when the police failed to bring him to court within 24 hours.
[36] In R. v. Crawford, I concluded that the appropriate remedy for the breach was a sentence reduction of six months. In my view, the nature and effect of the breach in this case is sufficiently similar to what occurred in R. v. Crawford, to demand a similar remedy. For the same reasons I articulated in R. v. Crawford, it is my view that the appropriate remedy in the case at bar is a six-month reduction in the overall sentence.
Downes Credit
[37] Mr. Reid was arrested in late December 2019. He spent five months in pre-trial custody before being released by me in May 2020. The release was very strict and required Mr. Reid to be in his residence at all times, unless in the presence of one of his sureties. He also had to wear an electronic bracelet to monitor his compliance with the house arrest condition. As of today’s date, Mr. Reid has been on this strict release for just over 21 months. Counsel for Mr. Reid argued that I should reduce Mr. Reid’s sentence 10 ½ months to account for the significant loss of liberty while Mr. Reid awaited his trial and sentencing. Mr. Janzen agreed that Mr. Reid may be entitled to some reduction in sentence to take into account the significant loss of liberty while on release pending trial, but it should be significantly less than the 315 days suggested by Ms. Page.
[38] It is well known that sentencing judges may reduce an offender’s sentence to take into account very strict bail conditions. The law relating to credit for strict conditions of release was explained in R. v. Joseph, 2020 ONCA 733 at para 108,
The propriety of treating “stringent bail conditions, especially house arrest”, as a sentencing consideration was affirmed in R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 205 C.C.C. (3d) 488 (Ont.C.A.), at para 33. Although it is not uncommon to speak of providing “credit” for stringent bail conditions, “pre-trial bail is conceptually a mitigating factor” in assessing a fit sentence: R. v. Panday (2006), 205 C.C.C. (3d) 488 (Ont.C.A.). Mitigation is given because stringent bail conditions can be punitive and therefore “akin” to custody: Downs, at para 29. The criteria to be considered in assessing the weight of the mitigation to be given therefore includes the amount of time spent on bail conditions; the stringency of those conditions; their impact on the offender’s liberty; and the ability of the offender to carry on normal relationships, employment and activity: R. v. Place, 2020 ONCA 546, at para 20. The mitigating effect that such considerations have on the sentence to be imposed falls within the discretion of the trial judge. Downs, at para 37.
[39] In the case at bar, the conditions imposed on Mr. Reid placed significant limits on his liberty. Not only was he on a house arrest release, but because of the ankle bracelet, leaving his residence was quite difficult because he had to first notify the electronic monitoring organization of his plans. I also note that Mr. Reid could not work while on release. Despite attempts by him to find employment where he could be consistently monitored by a person approved of by the court, this proved to be untenable. Mr. Reid suffered additional hardship while on release as his house arrest limited his ability to engage with his daughter. As noted above, his daughter was born in September 2020. She is now eighteen months old. As a result of Mr. Reid’s release conditions, he has had limited opportunities to do normal parenting activities, like take his daughter to the park. In my view, Mr. Reid’s liberty has been significantly impacted while on his release pending his trial and as such, is a significant mitigating factor.
[40] I am mindful that the loss of liberty Mr. Reid suffered while on release pending trial was nothing compared to the loss of liberty one experiences while in custody. I also appreciate that it is difficult to quantify how much of a reduction in sentence one ought to receive for strict bail conditions. In this case, Mr. Reid still saw family and friends while in the house and was able to have contact with his daughter. He could not, however, work, shop whenever he wanted, leave the residence, or do normal parenting activities like be outside with his daughter or see friends and family outside his residence. When I consider all these factors, it is my view that a reduction of eight months properly addresses the impact of the strict bail conditions in this case.
[41] I do appreciate that much of the delay in this case was to accommodate Ms. Page’s schedule. This, however, is not Mr. Reid’s fault, nor is it a delay that he benefited from. Mr. Reid was abruptly left without representation when his lawyer quit her practice. Mr. Reid was left to retain new counsel, which he did relatively quickly. Once retained, Mr. Page alerted the court to her busy schedule. I cannot fault Mr. Reid for Ms. Page’s schedule. Moreover, Ms. Page was not alone in having a very hectic and packed schedule in the fall of 2021. So many trials were adjourned in 2020, everyone has been playing catch up.
Pre-Sentence Custody
[42] Mr. Reid spent 139 days in pre-sentence custody. Sixty of those days were during the pandemic. Counsel urged me to give Mr. Reid enhanced credit for his time in pre-sentence custody. In particular counsel argued that Mr. Reid was subjected to 40 days of lockdown during his time at the South detention centre. He also was ill in January 2020. In R. v. Crawford, supra, I reviewed a series of cases addressing the conditions at the Toronto South Detention Centre, including the ongoing issue with lockdowns. I will not repeat those authorities, but I am mindful of the conditions of the Toronto South Detention Centre. I also appreciate that Mr. Reid was in custody from March 2020 until May 2020, which was the start of the pandemic.
[43] Pursuant to R. v. Duncan, 2016 ONCA 754, a sentencing judge is entitled to consider harsh conditions of pre-sentence custody when determining the appropriate sentence. In the years following R. v. Duncan, judges would frequently quantify the reduction in sentence that would be granted in light of the pretrial detention conditions. For example, in R. v. Persad, supra, Schreck J. determined that Mr. Persad was entitled to one and a half days of credit for each day he spent in lock down. He came to this conclusion after reviewing in detail the lockdown issues at the Toronto South Detention Centre (TSDC) and noting that the Crown stated that “enhanced credit given because of the conditions at the TSDC has tended to be between one half and one day of each day spent in lock down in addition to the usual credit for presentence custody”.
[44] Recently, in R. v. Marshall, 2021 ONCA 344, [2021] O.J. No. 2757 (C.A.), the Court of Appeal clarified how judges are to treat exceptionally punitive conditions of pre-sentence detention that “go well beyond the normal restrictions associated with pretrial custody” (see R. v. Marshall at para. 50). It is not to be a straight deduction from the appropriate sentence. Instead, it is to be treated as a mitigating factor only. The court stated at paragraph 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.
[45] In R. v. Marshall, supra, the court went on to state that while it is not an error per se to quantify the months given as “Duncan” credit, sentencing judges need to make sure they do not improperly treat this as a deduction from the appropriate sentence. The appellate court warned about the risk of giving the Duncan credit too much significance such that it leads to an inappropriate sentence.
[46] In the case at bar, Mr. Janzen urges me to place little weight on this mitigating factor and argued that when all the factors are considered together, the conditions of detention should not impact the ultimate sentence.
[47] In my view, the fact that Mr. Reid was in custody for 60 days during this pandemic and spent 40 days in lockdown is a mitigating factor. While I am mindful that it is dangerous to place a number value to take into account this additional factor as it runs the risk that I will impose a sentence that places too much weight on this one mitigating factor, given the specific facts of this case, and the limited time spent in pre-trial custody, I am satisfied that I can identify a number value for this mitigating factor while still imposing an appropriate sentence. In my view, Mr. Reid’s sentence should be further reduced by 40 days to account for the overly harsh conditions to the jail and the forty days of lockdown that largely occurred because of the pandemic. I therefore credit him for the 139 days in pre-sentence custody at 1.5 to 1 for a total of 208 days plus an additional 40 days for a total of 248 days.
Disposition
[48] In my view, the gravamen of the overall criminal conduct, without considering the mitigating factors of the pre-sentence custody, strict release terms and Charter breach, is a sentence of 6 years and three months; six years for the home invasion armed robbery, three years concurrent for the possession of the firearm and three months consecutive for the possession of a restricted weapon contrary to a prohibition order. When I consider the aggravating factors including the fact that Mr. Reid was in possession of a restricted firearm while prohibited from doing so, that the robbery involved the use of a firearm and was a home invasion style robbery along with Mr. Reid’s criminal record, a sentence above the five-year mandatory minimum is necessary to address the objectives of deterrence and denunciation. Having said that, Mr. Reid was not involved in the planning of the robbery and only arrived on scene originally to assist a friend. In my view a total sentence of six years and three months takes into account these aggravating and mitigating factors. When I reduce the sentence by six months for the Charter breach and further take into account the loss of liberty that Mr. Reid was subjected to from May 2020 until today’s date, I am left with a sentence of five years and three months. This sentence is then further reduced to take into account the pre-sentence custody which I credited at 248 days (eight months). This leaves a sentence of four years and five months.
[49] There will also be a DNA order and a s.109 order for life.
Released February 24, 2022 _______________________
Justice Mara Greene