WARNING

The court hearing this matter directs that the following notices be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the conse­quences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

( b ) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2024 04 25 Court File No.: Brampton Courthouse Brampton File# 21-Y3-02

BETWEEN:

HIS MAJESTY THE KING

— AND —

JB

Before Justice D. F. McLeod

Heard on February 15, 2024 Reasons for Judgment released on April 12, 25, 2024

Counsel: Bayat, counsel for the Crown T. Kent, counsel for the defendant JB

D. F. McLeod J.:

[1] JB is charged with a series of serious offences stemming from a robbery of a pharmacy in Peel Region.

[2] At the time of the occurrence surveillance was being conducted on a white Honda Civic that was linked to a number of robberies and had been stolen in January of 2021. Several individuals had also been linked to the stolen vehicle and were known to be in possession and use the car periodically.

[3] At approximately 2:49pm the afternoon of the day of the occurrence. Two individuals associated with the vehicle were EH and JB who were seen entering the vehicle when it was being driven by DBJ.

[4] On the day of the incident DBJ is seen pulling the Honda Civic in front of the Lisgar Medical Centre. At that time the 4-way flashers are engaged, and the passenger side doors both at the rear and in the front were being opened and closed.

[5] JB’s co-accused is armed with a firearm and is seen on surveillance cameras using the gun to corral the employees of the establishment into a room. JB is in possession of what the victims describe as a taser and was eventually recovered during JB’s arrest. JB is seen threatening the various victims while brandishing his weapon.

[6] As the robbery was progressing both men advised the employees that they would shoot then in the event that they were not given money. However, it became clear that there were no significant funds left on site which was further confirmed as the men realized the safe was left open and unattended.

[7] As the robbery progressed the co-accused can be heard on the surveillance video saying, “don’t move, or I will shoot you” after which the video captures him counting down as he continues to threaten the staff. Mr. B. is also captured corralling the staff with his taser in hand and threatening to electrocute them with his weapon.

[8] Two of the staff (Mr. Tamaio and Mr. Malik - the pharmacist) can be seen as they are taken into a single room while being held at gunpoint. Eventually their cellphones are taken away from them to ensure that they are unable to contact 911 or others on the outside world. To ensure that the authorities are not contacted the landline to the store is also cut. Once the staff are safely stored away the two men begin to search the pharmacy for items to steal.

I. Guiding Legal Principles

[9] The Youth Criminal Justice Act carefully details the guiding principles that must be relied on when interpreting provisions within the Act:

3 (1) The following principles apply in this Act:

(a) the youth criminal justice system is intended to protect the public by

(i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,

(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and

(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;

(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:

(i) rehabilitation and reintegration,

(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,

(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and

(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time;

(c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should

(i) reinforce respect for societal values,

(ii) encourage the repair of harm done to victims and the community,

(iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and

(iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements

(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).

[10] These principles in section 3 inform the purposes of sentencing youths that are detailed in section 38 of the Youth Criminal Justice Act:

38 (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

Sentencing principles

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

(a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;

(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;

(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons;

(e) subject to paragraph (c), the sentence must

(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and

(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; and

(f) subject to paragraph (c), the sentence may have the following objectives:

(i) to denounce unlawful conduct, and

(ii) to deter the young person from committing offences.

Factors to be considered

(3) In determining a youth sentence, the youth justice court shall take into account

(a) the degree of participation by the young person in the commission of the offence;

(b) the harm done to victims and whether it was intentional or reasonably foreseeable;

(c) any reparation made by the young person to the victim or the community;

(d) the time spent in detention by the young person as a result of the offence;

(e) the previous findings of guilt of the young person; and

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

II. General Principles of Sentencing

[11] There is a recognized individualization of the sentencing process which requires that sentencing judges blend and prioritize multiple objectives to justly reflect the responsibility of the offender and seriousness of the offense.: R. v. Morris, 2021 ONCA 680 at para. 37 [Morris]

[12] This approach has stretched far enough to allow judicial notice of social context evidence during the sentencing process. It has further allowed for specific sentencing principles for certain groups such as Aboriginal peoples as set in S.718.2(e) of the Criminal Code.

[13] However, paramount to the sentencing process are the principles of denunciation and deterrence in affixing an appropriate sentence: R. v. Smickle, 2014 ONCA 49, at para. 18; R. v. Nur, 2013 ONCA 677, at para. 206, affirmed 2015 SCC 15; R. v McKenzie, 2016 ONSC 5025, [2016] O.J. No. 4273 (SCJ), at paras. 21-25.

[14] The Ontario Court of Appeal has provided direction to trial judges as to how the experience of racism is to be factored into the sentencing analysis of Black offenders: R. v. Morris, 2021 ONCA 680. The starting point for any such analysis must be an acceptance of the reality of anti-Black racism. The Court of Appeal began its decision with the following paragraph:

“It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality in Canadian society, and in particular in the Greater Toronto Area. That reality is reflected in many social institutions, most notably the criminal justice system. It is equally clear that anti-Black racism can have a profound and insidious impact on those who must endure it on a daily basis … Anti-Black racism must be acknowledged, confronted, mitigated and, ultimately, erased. This appeal requires the court to consider how trial judges should take evidence of anti-Black racism into account on sentencing”

The following principles were concluded at para 13:

• The trial judge’s task in sentencing is to impose a just sentence tailored to the individual offender and the specific offence in accordance with the principles and objectives laid out in Part XXIII of the Criminal Code
• Social context evidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing as described in s. 718;
• The gravity or seriousness of an offence is determined by its normative wrongfulness and the harm posed or caused by that conduct in the circumstances in which the conduct occurred. Accordingly, unlike when assessing the offender’s degree of personal responsibility, an offender’s experience with anti-Black racism does not impact on the seriousness or gravity of the offence;
• Courts may acquire relevant social context evidence through the proper application of judicial notice or as social context evidence describing the existence, causes and impact of anti-Black racism in Canadian society, and the specific effect of anti-Black racism on the offender;
• Consistent with the rules of admissibility, a generous gateway for the admission of objective and balanced social context evidence should be provided;
• The Gladue methodology does not apply to Black offenders. However, that jurisprudence can, in some respects, inform the approach to be taken when assessing the impact of anti-Black racism on sentencing

[15] It is the application of these principles to the evidence before a sentencing judge that will lead to a just sanction. Within the sentencing analysis “evidence of anti-Black racism and its impact on the specific offender can be an important consideration when determining the appropriate sentence” …. and “[w]hereas no one individual should be completely absolved of their own responsibility when it comes to offending behaviour, the social realities that have produced or contributed to such behaviour can be acknowledged and serve to guide judicial decision making”: R. v Morris, 2021 ONCA 68 at para. 87.

[16] Therefore, it is these legal principles that must be considered an appropriate sentence for an offender and the imperative need for Enhanced Pre-Sentence Reports (EPSR) to create a just sentence.

III. Importance of Enhanced Pre-Sentence Reports

[17] It is acknowledged through judicial notice that anti-Black racism, including both systematic and overt anti-Black racism, has been, and continues to be a lived reality for many in Canadian society. The reality of its influence is ingrained and reflected in a multitude of social institutions that Black individuals interact with daily.

[18] The use of social context evidence can help draw connections between systemic factors such as anti-Black racism and its relation to the commission of the offence.: R v. Morris, 2021 ONCA 680 para. 99

[19] Specifically, the use of Enhanced Pre-Sentence Reports crafted by clinical social workers, offer judges and parole boards a comprehensive overview of an individual's personal history, accompanied by recommendations for culturally appropriate, community-based rehabilitation programs and are particularly beneficial for individuals marginalized by poverty and racial inequality.

[20] EPSRs draw inspiration from the approach utilized in Nova Scotia with their IRCA and share similar principles with Gladue reports, emphasizing the importance of considering how experiences shaped by systemic racism should factor into sentencing decisions.: Morris at para. 138

[21] As clearly and simply put by the Ontario Court of Appeal in para 137 of Morris “A better understanding of the offender is always a good thing on sentencing.”

IV. Enhanced Pre-Sentence Report and Pre-sentence report.

[22] EPSRs extend past the analysis undertaken during the creation of pre-sentence reports. Although pre-sentence report’s provide information that a sentencing judge would not have had, there often are gaps that would be helpful for the judge when considering sentencing but are not included.

[23] Pre-sentence reports are created by probation and parole officers. As put by Justice A. Pugsley, it serves as a “picture of the accused as a person in society – their background, family, education, employment record, physical and mental health, their associates and social activities, and their potentialities and motivations.; R v Riley, 1996 NSCA 112, 107 CCC (3d) 278; R. v Hayer, 2023 BCSC 1440 at para. 11

[24] On the other hand, EPSRs are crafted by a clinician or an expert with medical training. They consider not only the direct impacts in one’s life as seen in a pre-sentence report but in-direct impacts that stem from social context history in which anti-black racism manifests in Canadian Society. This includes understanding policies and practices embedded within institutions which reflect anti-Black racism and how it has manifested in education, housing, employment, housing, and child welfare systems.

[25] With an enhanced analysis of social context history, linkages can be drawn between the individual, their biographical history and anti-black racism that go beyond an individual’s life choices but also institutions they have interacted with.

[26] In R. v. S.B., 2023 ONCA 369, the Honourable Justice A. Tulloch writing for the Ontario Court of appeal agreed with the appellant’s submission that “EPSRs differ from regular pre-sentence reports in that they are much more detailed and focus on the particular experiences of racialized Canadians.”(para 48)

[27] EPSRs have been used in multiple cases such as:

In R. v. Abdullahi, 2022 ONSC 543, Justice M. Forestell was presented with an Enhanced pre-sentence report which was found to be appropriately balanced and objective. The report provided social context evidence that was relied on in assessing Mr. Abdullahi’s prospects for rehabilitation and ultimately was used as a mitigating factor in considering sentencing. The EPSR provided insight on the accused’s difficult childhood and adolescence growing up in an underserved area. Including experiencing poverty and systemic racism while also demonstrating potential of rehabilitation such as, Mr. Abdullahi strong high school grades, lack of a criminal record, and ample community support through letters received from the organizations he had volunteered with.

In R. v. Henry-Robinson, 2022 ONCJ 302, Justice Faria noted that the Enhanced Pre-Sentence Report provided extensive details about the accused’s life and history and does so within the social context of anti-Black racism. Specifically, it showed that the “accused had grown up in an environment of poverty to the point of homelessness. His housing has been inconsistent. His neighbourhoods have been those that experience gun violence. He himself has been exposed to the tragedy of gun violence. He has been exposed to the targeted community policing of those communities. Ultimately, finding that Mr. Henry-Robinson’s experience with anti-Black racism and his social context did impact his choices, and it is a mitigating factor for consideration” (para 49)

In R v Johnson, 2022 ONSC 2688, Justice R.F Goldstein commented that the information in the EPSR provided valuable information describing a man who has faced numerous obstacles, including structural racism especially in Mr. Johnson education that has contributed to bringing him to this point. Therefore, serving as a mitigating factor to be considered during sentencing.

In R. v. Stewart, 2024 ONSC 281, Justice Nakatsuru emphasized the importance of EPSRs and how valuable it can be. In this case the EPSR revealed the systemic factors that connect who you are to the offences you committed. Similarly, the Crown agreed that socio-economic factors and discrimination formed a part of the roots of the criminality that has brought the accused before the court. Further, concluding that the consideration of these systemic factors as they are connected to the offender, and the offences, are significantly mitigating.

In R. v. Lewis, 2022 ONCJ 29, Justice Henschel noted that the enhanced pre-sentence reports were very positive. Significantly, it depicted Mr. Lewis as a man who has a stable and supportive family with ongoing support of his mother, stepfather, siblings, cousins, and his grandmothers. Moreover, the report contained detailed information on the anti-black racism Mr. Lewis has experienced which acted as a factor that contributed to his decision to leave his family in Barrie and move to North York where he was living when he became involved in the current offences. Further the report demonstrated that Mr. Lewis rehabilitation potential as significant based on the EPSR which was a mitigating factor considered during the sentencing.

In R. v. Martin, 2022 ONSC 2354, the trial judge commented that “a very helpful Enhanced Pre-Sentence report was filed on Mr. Martin’s behalf. With respect to the offender, Mr. Martin has good support from his family and friends. He has two daughters to whom he is extraordinarily devoted. In relation to anti-Black racism, I have no doubt it has permeated Mr. Martin’s life. There are some specific detriments which can be seen in the pre-sentence report. I, like the pre-sentence author, see a glimmer of hope for Mr. Martin. He does have the capacity for reflection.

In R. v. Goodridge, 2022 ONCJ 139, Justice Dumel in para 56 stated “information from the enhanced pre-sentence report makes clear that this is a case where the principles of sentencing are better served by giving added weight to the principle of rehabilitation and less weight to specific deterrence. Giving weight to the systemic factors that have impacted Mr. Goodridge does not diminish the seriousness of the offence. It is an acknowledgement that sentencing is an individualized process that is tailored to the specific offender and considers the moral blameworthiness of the offender.”

In R. v. Williams, 2023 ONSC 6273, Mr. Williams’s affidavit and EPSR reveal a very troubled background emerging as it has from anti-Black racism, impoverishment, and a marginalized and criminalized community life. His life mirrors the experiences presented in great detail by the authors of the Morris Report. His life circumstances and lifestyle choices have prevented him from fulfilling his potential to make constructive use of his life. Regard to these factors must be allowed when fashioning sentence. Allowing for them to be taken in context for sentencing.

[28] Despite its valuable impact on describing an offender’s experiences with racism and socio-economic circumstances in their community, EPSRs continue to be difficult for offenders to obtain.

[29] These reports remain beyond the reach of Black offenders with low incomes due to the prohibitive costs and the limited availability of institutions capable of producing such reports leading to long waitlists.

[30] The reports also take longer to produce than pre-sentence reports often spanning 6-8 months due to the multiple interviews between the individual writing the report, the offender and family members. While also including an in-depth analysis of the impacts of anti-black racism, its intersection with the accused and the circumstances that led to the offence.

[31] On the other hand, Gladue reports which serve a similar purpose of demonstrating the unique experiences of Aboriginal peoples have been indicated by the Supreme Court of Canada as an “indispensable sentencing tool to be provided at a sentencing hearing for an Aboriginal offender and it is also indispensable to a judge in fulfilling his/her/their duties under s. 718.2 (e) of the Criminal Code.”: R. v. Ipeelee, 2012 SCC 1 at para. 60. These reports approximately take 8-10 weeks to be completed. They are completed by publicly funded indigenous organisations when an offender faces jail time (over 90 days) and can be requested by a judge, the crown, or counsel.

[32] Without strict guidance on the allocation of resources towards EPSRs multiple judges have cited their concerns: [emphasis added]

In R v Johnson, 2022 ONSC 2688, Justice R.F Goldstein stated the following “ I have now been able to review some enhanced pre-sentence reports in different cases. They are usually very detailed and provide an in-depth examination of the background and circumstances of the offender. This report, like others I have seen, was helpful in placing Mr. Johnson’s circumstances and the offences in perspective. As any judge will tell you, sentencing is one of the most difficult, if not the most difficult, part of the job. The enhanced pre-sentence reports do not make sentencing easier, but they provide a sentencing judge with information, and perspective, that – hopefully – that might otherwise not come before a sentencing judge. As the fundamental purpose of sentencing is to impose a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender, any information that assists is useful. I appreciate that these reports are quite resource-intensive, and I do not suggest that they should be ordered in every case. They always take more time to prepare than a regular pre-sentence report. That said, I would encourage the increased use of these reports, as resources allow.”

In R. v. McLarty-Mathieu, 2022 ONCJ, Justice B. Green stated “The information in these reports may provide crucial background information that could potentially mitigate an offender’s moral culpability thereby attenuating the length of a sentence of incarceration and potentially ameliorating the overrepresentation of black individuals in custody. Unfortunately, despite commitments to ensuring these reports are readily available, they are cost prohibitive for many defendants and necessitate lengthy delays. It is counterintuitive and fundamentally unfair that critically important reports intended to foster a better understanding of the impact of systemic racism and the experiences of racialized minorities, particularly black offenders from difficult backgrounds, are not available resources for many vulnerable individuals who face socio-economic hardships and life challenges. ”This situation is a catch-22. The reports are intended to redress historical inequities in sentencing proceedings, but they are not reasonably attainable by black individuals with low incomes who are statistically far more likely to be incarcerated. Regrettably, the cost prohibitive nature of the reports contributes to an understandable, ongoing, negative perception of many racialized individuals that justice is more readily available for those who can afford to access to it.”

In R. v. Williams, 2023 ONSC 5653, Justice Corrick noted the length of delay in receiving an EPSR. In this case the accused on February 23, 2023, pleaded guilty to one count of conspiracy to commit robbery and one count of impaired driving. The matter was adjourned for a lengthy period of time for the preparation of an enhanced pre-sentence report. However, as of September 29, 2023, the accused had not yet been interviewed due to the backlog of cases currently awaiting the preparation of such reports (7 months). Therefore, Defence counsel had to make submissions on sentence without a report.

In R. v. Edwards, 2023 ONCJ 53, the trial judge found the PSR to be superficial and requested for more information such as through the form of an EPSR. However, such a report was beyond the accused’s reach, stating that EPSRs, costs some offenders approximately four thousand dollars and can take up to eight months to produce, despite some of the thoughts expressed in Morris at para. 128.

In R. v. Lovell, 2023 ONSC 5776, it was noted that EPSRs take considerable time and in this instance took roughly 7 months to be completed from the time of being put on a waiting list until a caseworker could be assigned and complete the report.

In R. v. Simpson, 2023 ONSC 382, a EPSR was subsequently ordered in April 2022, and completed by October 2022 amount to an estimate of 6 months to be completed. A time that is extremely lengthy and significant for an accused to wait.

[33] Several sentiments have been expressed by judges regarding the allocation of resources to help with the creation of EPSRs. It is my hope that these concerns emphasize the need for greater resources and for EPSRs to be considered as a form of natural justice that is vital to a trial judge to consider during sentencing and applying the objectives of S.718. (My own words, not cited by a judge)

[34] To reiterate a passage from the Ontario Court of Appeal in Morris at para 128 [Emphasis]

[128] “Counsel’s efforts alone will of course not be enough. The resources needed by counsel to properly put forward this kind of information must be available, as must the resources needed to effectively implement a conditional sentence tailored to the needs of the offender like the sentence in Anderson (NSCA). The proposed federal legislation, combined with commitments made in the government’s 2020 economic statement, suggest the previous government intended to make the necessary resources available. Hopefully, that commitment will be renewed and acted upon in the immediate future: see Bill C-22, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, 2nd Sess., 43rd Parl., 2021; see also Canada, Supporting Canadians and Fighting COVID-19: Fall Economic Statement 2020 (Ottawa: Department of Finance, 2020), at p. 85.3F”

VI. Position of Parties

Crown Position

[35] Ms. Crown takes the position that the appropriate sentence in this matter should be one of custody and supervision for a period of 18 months and a series of ancillary orders.

[36] The crown opines that the charge of robbery is a very serious and violent offence which in this particular circumstance with this offender should qualify for a custodial sentence irrespective of the fact that JB was a young person at the time of the offence.

[37] The crown further contends that the proposed sentence takes into account the following realities.

(i) The length of time JB was the subject of restrictive bail conditions for upwards of 2 years;

(ii) His use of a weapon and the forceful manner in which he dealt with the various complainants;

(iii) The calculated and premediated planning that was employed by the young men including corralling all of the staff into a room, cutting off the land lines and engaging a get a way driver to further the commission of the offence;

(iv) The victims were impacted by the use of firearms, a taser, being dragged and threated as well as the cutting off of the phone line;

(v) The fact that the staff were so afraid that when the police arrived, they were not prepared to open the door in the event that they were harmed again in some way.

Defence position

[38] The defence asks the court to consider a noncustodial sentence.

[39] The defence makes the submission that there were major triable issues and drew the courts attention to the arrest of JB as well as the fact that he was not the person who was armed with the firearm.

[40] The defence further asks the court to consider the following:

(i) JB was the subject of term of house arrest that lasted approximately 2 years. As a result of the type of release JB was unable to attend school or work. Which put his scholastic pursuits on hold for the duration of the house arrest;

(ii) The mental health consequences that were suffered by him as a result of not being able to work and being placed in the unenviable position of being a financial burden.

V. Relevant Information As per Enhanced Pre-Sentence Report

[41] Ms. Jacquie Pemberton, B.S.W., M.S.W., R.S.W. prepared an Enhanced Pre-sentence Report was filed with the Court. In the Enhanced Pre-sentence Report, Mr. B. described the circumstances of his offence and his troubled upbringing, interactions with police and issues of mental health to the author of the report.

[42] JB is 20 years old and was born on July 19, 2003, in Toronto. He is the only child born to his parents. He has 9 siblings between his paternal and maternal side. JB identifies as a heterosexual, Black man of Christian Faith. He is a first-time father to his son and is currently in a relationship with the mother of their son. He has expressed his love for his son, loves being around him and feels that he changes his “entire spirit”.

[43] JB was conceived by his mother at the age of 14. She was 28 weeks (7 months) pregnant when her father found out and requested that she abort the child. MB declined her father’s request and gave birth to JB when she was 15 years old.

[44] JB disclosed that his childhood was “wild” because of his family dynamics and the absence of his parents. He described a dramatic separation from his mother when his grandparents took guardianship of him at the age of 4. JB noted that this left an indelible impact on him because he wanted to live with his mother.

[45] JB had disclosed that he did not have the presence of his father and remarked: “my father left my whole life”. JB’s father disclosed that he incurred an extensive youth criminal record that led to periods of detention during JB’s childhood with the longest period being a 5-year sentence in 2010, the majority of which he served in the penitentiary.

[46] JB made remarks that the absence of his father made him the person he is today and that at the age of 7 believed he had to “fend for himself”, that he was a “grown man” and from this perspective, “I was doing whatever I wanted to do, nobody was looking at me like that”. JB felt that his grandparents could not control him, although his maternal grandmother always aimed to maintain a good relationship as he described she “never gave up” on him despite his occasional disobedience. On the other hand, he had an unpleasant relationship with his grandfather who subjected him to verbal put-downs, had ill wishes spoken over him and was physically disciplined by his grandfather.

[47] JB grew up in a 4-bedroom home on Chinguacousy Road and Bovaird Drive area in Brampton. He reported that the home he lived in was “chaotic” as there was always conflict with multiple relatives staying at a time. By virtue of living in this space, he was directly exposed to negativity, poor conduct and how to live a “fast life”. Furthermore, he recounted being exposed to police raids (approximately 6) within his grandparent’s home and the resulting arrests of different family members.

[48] JB has admitted that he does not believe that all police are the same but the ones he has encountered have treated him poorly. He disclosed he has experienced racial profiling in his neighbourhood because of how he dressed and his braided hair. He believed no matter how he acts or responds to the police a negative perception of him will be conceived even to the extent that he has been followed by officers and has run away from them out of fear of what they would do if he interacts with them.

[49] JB’s education was quite sporadic. He attended 4 different schools between kindergarten to grade 8 but could not recall the reason for his movement between these schools in his early education but states he had no issues at these schools and performed well academically.

[50] In high school he disclosed how he struggled to concentrate as he had lost at least four of his friends to gun violence. Mr. Williams reported that JB got into trouble in high school, such as in grade 9 where he was suspended for fighting and being under the influence of marijuana.

[51] While attending Turner Fenton Secondary School there were officers stationed within the high school. JB disclosed that their presence made him feel “awkward” and that their sole purpose was to “pin Black guys up against the wall and arrest them”. Feeling as if he was being targeted JB was suspended and sent home on a regular basis making him feel unmotivated to attend school stating “I looked at it as what was the point of attending.”

[52] JB subsequently discontinued his education by Grade 11 as a result of being distracted by outside influences. Additionally, he was under house arrest for a different offence. While under house arrest, he continued his studies and believes he obtained 18 or 19 credits through online education. But that being on house arrest has been stressful making it difficult to complete all the credits needed.

[53] JB told the author, that he had begun working in grade 9, working overnight cleaning hair dressing schools and arriving home around 8:00am. Evidently, this schedule has a large impact with JB attending school on a regular basis; thus, lasting approximately 3 months. He had also worked in grade 11-12 at a UPS warehouse and in 2023 with an Amanda Williams – his surety at a boat ride company.

[54] In the winter of 2021, JB obtained his forklift license because he saw the benefits of having this certification when it comes to gaining employment. He is hopeful that this license will be helpful to his job search in the future with a particular expressed interest in “house framing.”

[55] Notably JB has been on house arrest for 2 ½ years. He had expressed that being “behind closed doors has brought up feeling of depression for him. He agreed that this arrangement is better than jail, but it also “drives him crazy” He would like to work and provide for his son but has found it impossible to do so given his strict conditions. Coping with this reality he smokes marijuana and was introduced to this substance as early as elementary school.

[56] The author ultimately notes that JB has high hopes for rehabilitation. She says “Now that JB is a father, he is trying to approach parenting differently and does not want his son to experience what he had to. Being apparent to his son has changed JB’s perspective on life. He takes this role seriously and the thought of being absent from his son’s life because of his poor choices is a reality that JB is fearful of. He no longer sees a future for himself that involves criminal behaviour and ultimately, he wants to set a good example for his son.

VI. Application

[57] JB comes before this court as a young black male. The principles of sentencing requires this court to amongst other things look at his life and apply the appropriate social context in order to see if there is any aggravating and or mitigating circumstances with respect to the offenders degree of responsibility.

[58] As I have stated before the assistance of the Enhanced Pre-Sentence Report was invaluable and should be incorporated as of right for Black accused.

Harm done to the Victims

[59] The offence before this court is very serious. Unassuming staff at a pharmacy were forced into rooms at gun point, stripped of their PDA’s, and threatened with the potential of being shot and or electrocuted.

[60] The impact of this crime will be felt by the victims for the remainder of their lives. These were everyday employees whose main job mandate was to make the lives’ of others better by providing them with medication to help, heal and repair.

[61] This court must take the impact to the complainants seriously when assessing the appropriate sentence. I am of the opinion that not only was the impact significant to those men and women who worked within the pharmacy, this impact would be reasonably foreseeable by JB and the others who participated in this crime. This long-lasting consequence was of little to no moment for the young men who breached the door on this fateful day in order to gain access.

Degree of Participation

[62] JB was a significant player in the robbery. He robbed an establishment in broad daylight, placed the staff of the pharmacy in danger and ensured that they would be emotionally impacted for many years to come if not the rest of their lives.

[63] JB when asked by the court about the day did admit that he would have done many things differently on that day including not going out with his co-conspirators.

[64] It is also not lost on this court that JB was a young person at the time of the offence and the youngest participant. This is of import because at that age he would also have been impressionable. When engaged in conversation with the court JB also admitted to being more mature in his thinking at this point in his life and feels that the processing of things would have been drastically different had he been engaged around this crime in his later years. This is the level mindedness that comes with age and experience something this court believes was lacking back at the time of this offence.

Restrictive Judicial Interim Release

[65] This court also recognizes and considers the fact that JB has spent a significant amount of time on house arrest totalling over 361 days. This is the most restrictive type of bail that anyone can receive outside of custody and also takes a significant toll on those who act as sureties. Counsel for the defence and the enhanced report both echo the sentiment that this level of judicial interim release for the length of time JB was subjected to it was taxing on his mental health and left him without any means of sustaining himself financially.

Aggravating and Mitigating Circumstances

[66] JB is a young black man whose life has been significantly impacted by the various intersections of poverty, racism, mental health, and a break down of the family. This backdrop created a foundation that was not able to sustain or provide a basis for positive societal touchpoints. It should be noted that many young men and women from the same communities and struggling under the same adverse circumstances are able to move past their circumstances and hardships and become productive members of Canadian society. However, the lion share of the small percentage of individuals from the black community who find themselves embroiled in the criminal justice system tend to face significant barriers not unlike those JB had grown accustomed to.

[67] JB was born to a teenage mother and a father who would be incarcerated for such long periods that JB advised the author of the report that it felt to him that he grew up without his father – “my father left my whole life”. JB based on the information contained in the report was taken from his paternal mother at an early age, and eventually entered the work force while still young impressionable. The loss of a family dynamic and the innate security that can come from that was never a reality for JB who found himself going down a road that was not unlike the examples that he was given.

[68] JB stands before this court involved in the criminal justice system as his father was as well as a young father now himself as his mother was with him.

Prospect of Rehabilitation

[69] In my interaction with JB and reviewing the enhanced report it is clear that he has matured due in part to his new role as a father of an 11-month-old child. As was explained to me during our conversation JB’s outlook on life has changed and in many respects the birth of his child has forced him to assess his day-to-day actions and activities through a very different prism.

[70] This court when assessing the personal circumstances of JB cannot help but view the birth of his son as a “going concern” that will in many respects force him to take another path not only for himself but also for his new family. JB seems resolute on breaking the cycle that he unwillingly became party to. From the ages of 5 – 15 he advised the court that in his estimation he “never really had parents” – this is a very telling admission.

VII. Appropriate sentence

[71] In determining the appropriate disposition this court must ensure that the sentence is proportionate to the seriousness of the offence. The degree of responsibility of the young person as well as balancing that with all available sanctions other than custody that are reasonable in the circumstances.

[72] Justice J. Green in the matter of R v. KH quoted the Supreme Court of Canada in R. v. D.B., 2008 SCC 25, at para 93 "The imposition of a non-custodial sentence in these circumstances does not make young persons less accountable for serious offences; it makes them differently accountable." Accountability, meaningful consequences and the protection of society are better achieved with this youth for these offences through the intensive rehabilitation program that is offered by the ISSP and making reparations through community service work. - R v KH, [2019] OJ No 3795, 2019 ONCJ 525

[73] JB presents as a man who has had to deal with social demons and familial upheaval for most of his young life. According to the enhanced pre-sentence report JB “has the potential to forge a better path ahead if he maintains the focus that is required to do so.”

[74] Taking all the appropriate factors into consideration, this court is of the opinion that a non-custodial sentence would not be warranted in these circumstances.

[75] In order to address JB’s various levels of familial trauma, ensure continued success on his road to rehabilitation, confront the various forms of anti-black racism he has encountered, break the significant cycle of parental harm and denounce the unlawful conduct this court will impose the following sentence.

JB will be placed on probation for 24 months with the following conditions:

• Keep the peace and be of good behavior;
• Appear before the Youth Justice Court when required to do so;
• Report in person to a youth worker within 7 days and after that, at all times and places as directed by the youth worker;
• Live at a place approved of by the youth worker and not to move from that address without the prior permission of your youth worker:
• You must not reside or work in a place where firearms, imitation firearms, ammunition, restricted weapons, prohibited weapons or explosive substances are kept or stored;
• Obey a curfew and be in your place of residence or on the property of your residence between the hours of 5 p.m. to 7 a.m. daily except for the first 10 months
  • While in the direct company of your mother or father or one of your grandparents;
  • While in the direct company of an adult approved of in advance in writing by your youth worker;
  • for any medical emergency involving you or any member of your immediate family if written justification is provided to your youth worker within 72 hours of any such absence during curfew hours;
  • while travelling directly to, directly from and while attending at a place of employment that has been approved of by your youth worker;
  • while travelling directly to, directly from and while attending at a place of educational, vocational, counseling or treatment programs that have been approved of by your youth worker;
  • while travelling directly to, directly from and while attending at a place that has been approved of by your youth worker to complete your community service hours; or
  • with the prior dated written approval of your probation officer to be carried with you at all times while out of your residence during curfew hours
• Attend and actively participate in all assessments, counselling or rehabilitative programs with the Brampton Multicultural Community Centre (BMCC) including but not limited to The Breakthrough Intervention Program as well as all other programs recommended during your clinic assessment and complete them to the satisfaction of the youth worker;
• Attend and actively participate in all assessments, counselling or rehabilitative programs with Roots Community Services including but not limited to The Mental Wellness Program and should be completed to the satisfaction of the youth worker;
• You shall sign any release of information forms to enable the youth worker to monitor your attendance at and completion of any assessment, counselling, or rehabilitative programs;
• Do not associate or communicate in any way directly or indirectly with EH, and DBJ
• to write fulsome letters of apology to each of the victims to the satisfaction of the youth worker. The letters of apology are to be completed within two months of the start date of this probation order; and/or
• to engage in mediation with any of the victims (who wish to participate) that has been arranged by the youth worker with the consent of the victims…name;
• Do not be within 50 metres of any place where you know the above-named individual(s) to live, work, go to school, or frequent except:
• to engage in mediation with any of the victims that has been arranged by the youth worker with the consent of the victims;
• Do not be within 50 metres of the pharmacy location 6970 Lisgar Dr. #B2, Mississauga, ON.
• You are to write a letter to the Court prior to our first meeting detailing all the steps that you have taken since your sentencing to rehabilitate yourself and what you have learned from this experience;
• Enroll and attend an educational and/or vocational program approved of by the youth worker and complete them to the satisfaction of the youth worker; This court recommends Peel District School Board classes through the Adult Credit Recovery Program
• Make reasonable efforts to seek and maintain suitable work approved of by the youth worker unless your youth worker determines that it would not be feasible considering the counseling and treatment programs contemplated by the family court clinic assessment;
• Do not possess any weapon(s) as defined by the Criminal Code;
• Do not buy, possess or consume any unlawful drugs or substances and do not possess any weigh scales, hydroponic growing equipment or other drug paraphernalia;
• You shall perform 240 hours of community service work. The work is to start no later than 3 week from the start date of this order and shall be completed at a rate of not less than 20 hours per month. You shall complete the work as directed by and to the satisfaction of the youth worker. The community service work may include mentorship programs or leadership programs approved of by the youth worker where you share your experiences with other youths.
• In addition to the ISSP as part of two years of probation, there will be the following ancillary orders:
  • DNA order on each offence with an execution time immediately
  • Mandatory weapons prohibition order for a period of 2 years pursuant to subsection 51(1) of the Youth Criminal Justice Act;

[76]

Released: April 25, 2024 Signed: Justice D. F. McLeod