Ontario Court of Justice

Date: 2024 09 16 Court File No.: Toronto 21 35000667 and 21 15000898

Between:

HIS MAJESTY THE KING

— AND —

SHAROZE RAJA

Before: Justice R. Wright

Heard on: July 31, 2024 Reasons for Sentence released on: September 16, 2024

Counsel: C. Stratos, counsel for the Crown S. Pennypacker, counsel for the accused Sharoze Raja

R. WRIGHT J.:

[1] On February 8, 2023, Sharoze Raja entered pleas of guilty before me to five counts: 1. Robbery with a handgun (bank robbery, Drumbo); 2. Robbery with a handgun (armored truck robbery); 3. Unlawful possession of a loaded, restricted firearm; 4. Breach of a YCJA weapons prohibition, and; 5. Failure to comply with a condition of a release order (non-contact with a co-accused).

[2] In essence, the charges relate to two separate armed robberies, one of a Bank of Montreal ("BMO") branch in Drumbo, Ontario, and one of an armoured-car transport in Toronto. Each of the two robberies involved multiple victims, co-participants, and loaded firearms. Both robberies involved significant threats of violence and death, with a firearm being held directly to the heads of two victims.

[3] Mr. Raja was only 18-years old when he committed these offences. He had no prior adult criminal record. One of his co-accused was a young person, 17-years old at the time of the offences. As far as I am aware, the third male was never identified.

[4] The Crown seeks a global sentence of eight-years jail, a s. 109 Weapons Prohibition, and a DNA Order.

[5] The Defence submits that the appropriate jail sentence would be five years, which it submits is 12 months custody once credit is deducted for pre-sentence custody (“PSC”) already served, followed by a period of Probation. The Defence does not contest the ancillary orders.

The Offences

[6] On January 19, 2021, in the middle of the afternoon, Mr. Raja attended the BMO branch at 19 Oxford St. W., Drumbo, Ontario, with two other men. All three males wore masks, with hats and hoods over their heads.

[7] They immediately demanded that the three employees in the branch get on the ground. They physically took control of the victims, grabbing them by the hair. They yelled “Where's the cash? Where's the vault?” Mr. Raja pointed a black handgun at the victims. One of the other robbers also had a revolver-style handgun. The third male carried a knife.

[8] Mr. Raja took one of the victims, Nerissa Soogrim-Sookhai, to the vault. She was unable to enter the vault combinations. Mr. Raja then grabbed a second victim, Melissa Paine, and she was able to open three of the four vault compartments under duress. He held his gun to her head and told her to open the fourth vault. She said “I have four kids please don't do this.” He responded with “If you want to see your kids tonight open the bottom vault.” She was unsuccessful in opening fourth vault.

[9] Even without the fourth vault, the three men stole a substantial sum of cash; more than $40,000. The money taken was placed into a BMO security bag and then into a black bag carried by one of the robbers. The males directed Ms. Paine to disarm a fire exit and they then left out that exit. They fled in a blue Nissan Versa. They changed vehicles less than a kilometre away, leaving the Versa abandoned and further escaping in a Red Hyundai Tucson SUV that had been stolen in Kitchener some nine days prior.

[10] On February 2, 2021, two employees of Garda, an armoured truck transport company, were collecting currency from various financial institutions in Toronto. At approximately 10:15 PM the victims, Peter Vidovich and Jeremy Clark, attended a Royal Bank of Canada (“RBC”) branch at 865 Milner Avenue. The branch was closed due to COVID restrictions; only ATM and business-related night-deposits were being accepted at the time.

[11] The armoured vehicle was parked in front of the bank and both guards commenced their usual procedure for money collection. Both men exited the truck and entered the RBC to collect the currency. Once collected, Mr. Vidovich began to walk toward the rear of the truck. Mr. Raja and two other masked men ran toward him yelling “give me the bag, give me the bag.” He got into the secured compartment in the rear of the truck, still in possession of the money bag. The door locked and secured behind him. The second employee, Mr. Clark, was left standing outside the truck.

[12] Mr. Clark drew his employment-issued firearm, a loaded, restricted weapon. He realized that two of the accused were armed with handguns, at which time he retreated and dropped his firearm. One of the three robbers grabbed hold of Mr. Clark and dragged him at gunpoint to the side of the truck, tapped on the window with the handgun and yelled to Mr. Vidovich “if you don't open the door, we're going to shoot your partner” while holding the handgun to Mr. Clark's head.

[13] Mr. Vidovich was already in the process of emergency procedures, including activating an alarm button and calling 911. When the three robbers realized the alarm had been sounded, they fled. One of the three picked up and took Mr. Clark's issued firearm. They entered and fled in the same stolen Red Hyundai Tucson SUV which they had used to flee the Drumbo robbery. Mr. Raja dropped a cellular telephone at the scene, which is how he was eventually identified.

[14] Mr. Clark’s stolen firearm was located the next day by workers working on the 401 highway. It was still loaded and appears to have been tossed along the highway from a vehicle.

[15] Mr. Raja was subject at the time to a YCJA Order prohibiting him from possessing any weapons. He was also subject to a Release Order that included a condition that he not be in contact with one of the other persons identified in the robbery (a young person). He was in breach of both of these conditions when committing the armoured-car robbery.

Victim Input

[16] I received Victim Impact Statements (“VIS”) from two of the victims: Ms. Paine, who had the firearm pointed at her head while being told to open the vaults in the BMO robbery, and Mr. Vidovitch, who was able to get into the armoured truck when the three men rushed at him during the armoured car robbery.

[17] Ms. Paine was significantly traumatized by the BMO robbery. She specifically referenced the gun being held to her head and being asked if she wanted to see her family again. She had to leave her job at the branch, telling her husband that one more robbery would ruin her. She feels helpless that members of the community tell her that such events are inevitable or expected when one works in a bank. She expressed that she does not understand the disregard for human life that would allow someone to point a gun at another person’s head.

[18] Mr. Vidovitch was also significantly traumatized. He constantly thinks about being robbed. He suffers from epilepsy, and the stress and anxiety he felt in the months after this robbery caused his condition to become unmanageable. As of the date of his VIS, he was still not back to his regular employ and was not driving due to an epileptic seizure. His doctor diagnosed post-traumatic stress disorder (“PTSD”); he has had flashbacks in places like the parking lot or grocery store, when rushing and seeing people in COVID masks. He suffers ongoing anxiety and sleeplessness, depression, and mood swings. He has lost the joy he once felt at socializing. He cannot help but ruminate on where he and his family would be if he had not been robbed that day.

[19] The other victims of the robberies declined to provide VIS. I am prepared to infer that they also would have been traumatized by being robbed by masked men at gunpoint.

The Offender

[20] I had the benefit of both a Pre-Sentence Report (“PSR”) and a Culturally Competent Sentencing Report (“CCSR”) for Mr. Raja. He is now 21-years old. As I will detail, he has spent a significant amount of time in the last three years incarcerated.

[21] Mr. Raja has had difficulties in his home life. His parents were born in Pakistan. His father moved to Canada as a teenager and later sponsored his mother to immigrate. When Mr. Raja was an infant, he was subjected to violence by his father who struck him while also inflicting violence on Mr. Raja’s mother. Police became involved. Mr. Raja’s father kicked his mother out of the family home.

[22] He and his mother then resided with her family in Kitchener. There was a shared custody arrangement for some years. His parents then reconciled for a time in 2008, as his mother thought it would be better for him to be with his father. There was further domestic violence. Mr. Raja witnessed at least one incident where his mother was threatened with a knife. Mr. Raja began to mimic some of his father’s violent behaviour.

[23] Mr. Raja was subject to violence from his father in the form of inappropriate discipline: making him squat in uncomfortable positions for long times, poking him with pencil lead in the hand. His mother sought assistance for some of the behaviour that Mr. Raja had begun to display, such as risk-taking actions and pushing children at school. At one point, Mr. Raja was diagnosed with ADHD by his pediatrician and prescribed medication. This medication eventually caused enlargement of his heart (when he was 15). Mr. Raja continued to demonstrate a great deal of anger, hitting other children as well as his cousin. He was defiant, and his behaviour worsened after time with his father. He also suffered difficulties in school.

[24] Mr. Raja’s mother re-married. His relationship with his stepfather was also tumultuous. After the birth of the couple’s first child, his stepfather began to mistreat Mr. Raja. He physically disciplined him and called him belittling names.

[25] Mr. Raja was sent to a boarding school in Pakistan for two months. He did not respond well to the different methods of discipline there, which included corporal punishment. Mr. Raja likely experienced cultural and identity issues as a result of the treatment by his father and stepfather, and being sent to boarding school, having to constantly hide aspects of his personality in attempts to fit in at home or at school.

[26] Mr. Raja’s schooling has been inconsistent. He had much change and little consistency, often due to custody and access arrangements with his parents. He was expelled from high school in October of 2019 following an argument with an ex-girlfriend in which he snatched a cell phone from her. He was arrested as a result of the incident. After this he attended an adult school.

[27] Mr. Raja experienced racism while in school, having been called various slurs. These sometimes led to physical fights with white students. Mr. Raja reported that he felt the fights were about competition and status recognition, the purpose of which was to assert the dominance of white students as a majority.

[28] When asked about his relationships with his family, friends, and others, Mr. Raja reported that he had struggled a great deal with his emotional and behavioral development. He said that he was an angry kid whose dad had always fueled his anger. His anger had led to constant arguing with his father, suspensions in middle school, and expulsion from high school. He had also run away from home when he was 16.

[29] He reported having the love and support of his mother, and having the care and support of one aunt and cousin.

[30] Mr. Raja first began to get into trouble with the law after his stepfather began to mistreat him. He spent time in detention as a young person for being in a stolen car, and for the incident with the cell phone and his ex-girlfriend. At 17, Mr. Raja became involved in more serious criminal activity. In March of 2020, he committed in a robbery in Drumbo, ON. He pleaded guilty to multiple robbery charges under the YCJA.

[31] He experienced racism while incarcerated. He was injured during a fight with an inmate, which required hospitalization in order to treat an orbital bone fracture. The physician at the East Toronto Detention Center minimized his injury and it was over a week before Mr. Raja was sent to Scarborough General Hospital for treatment.

[32] Mr. Raja was able to identify and discuss some strengths and weakness:

(1) He reports a strong and stable relationship with his mother, aunt, and first cousin; (2) He reports that he is able to care for himself well. He takes good care of his appearance and has a good self-image. This generally helps him make a good impression when he interacts with strangers in new situations; (3) He reports that he communicates well with others; (4) He reports that he observes his religion’s teachings well especially with regards to refraining from alcohol use; (5) He regards himself as a caring and honest person who is also respectful of other people’s cultural backgrounds and beliefs; and (6) He believes the skill he lacks the most is that in some instances he finds himself unable to resist negative peer pressure; he may not be able to see the full consequences of his actions at times. This may involve some “learned helplessness” as identified in the CCSR as being a factor faced by many second-generation immigrants like Mr. Raja.

[33] Mr. Raja was arrested February 13, 2021. From July 28, 2021, to November 28, 2021, he served a youth sentence at the Roy McMurtry Youth Centre for the robberies referenced above. He was released on a strict Release Order, with conditions including house arrest and GPS monitoring on May 13, 2022. Unfortunately, there was an allegation that he breached those conditions, and on July 31, 2023, he returned to custody and has remained in custody to today.

[34] Most of his initial period in custody, from February 14, 2021, to May 13, 2022, excepting when he served his youth sentence (4 months), was during COVID-19 protocols.

[35] Mr. Raja has a YCJA record, the entries of which are within the retention period. He received a youth probation order for counts of mischief and failing to comply with a condition of an undertaking in 2020. He also has the above-mentioned robberies from Drumbo; his youth record shows seven counts of robbery from July of 2021 for which he received 4 months and 75 days custody and supervision and a s. 51 Order.

Positions of the Parties

[36] The Crown seeks a sentence of eight-years jail, less credit for PSC. While acknowledging his youth, these are two robberies where handguns were used in the commission of the offences. They involved planning and significant threats of violence on five victims. The perpetrators took a third firearm from one of the victims and discarded it, loaded, on the 401 highway. Mr. Raja was bound by a condition of his youth court order not to possess any weapons or have contact with one of the other robbers. The Crown cites deterrence, denunciation, separation and rehabilitation as the primary sentencing principles.

[37] The Defence seeks the mandatory minimum sentence of five-years jail, less credit for PSC. Mr. Raja was 18-years old at the time of the offences. He has strong rehabilitative potential and is very remorseful. He has served harsh PSC where he has suffered violence and institutional violence, and has learned his lesson and what it is like to be a victim. His experiences of racism, family violence, and learned helplessness as a second-generation immigrant contributed to his peer associations and susceptibility to participating in this criminal activity. While agreeing that deterrence and denunciation are important, the Defence submits they cannot overwhelm the sentencing objective of rehabilitation: Mr. Raja is a youthful offender being sentenced to his first adult convictions, and the principle of restraint must play a role in the fashioning of Mr. Raja's sentence.

[38] The parties disagree about the attribution of PSC. They depart in three areas:

(1) Sentence reduction for excessive force: the Defence seeks that additional credit be granted in PSC for a use of force that occurred in Maplehurst Correctional Facility in December of 2023; (2) R. v. Duncan credit: the parties disagree on the amount of credit that should be granted for harsh PSC; (3) R. v. Downes credit: while the parties agree that some credit is appropriate for restrictive bail conditions, they do not agree on what that credit should be.

Applicable Sentencing Principles

[39] Section 718.1 of the Criminal Code states that the fundamental principle of sentencing is proportionality. To be a fit sentence the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[40] Ss. 718.01 and 718.2 of the Code set out a number of other considerations:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(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,

shall be deemed to be aggravating circumstances.

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[41] Other aggravating and mitigating factors and the offender’s personal circumstances must also be considered. This includes a consideration of Mr. Raja's personal circumstances as outlined in the reports.

[42] Robbery is one of the most serious offences in the Code. It carries a potential life sentence. When a robbery is committed using a restricted or prohibited firearm (such as the handguns used in both of these robberies), there is a mandatory minimum sentence of five years in the case of a first offence. Because Mr. Raja resolved these robberies together, they are treated together as a first offence.

[43] The range of sentences for robbery generally span from a non-custodial sentence to life imprisonment. Robberies of a financial institution or armoured-car with a firearm generally attract significant penitentiary sentences: See R. v. Asif, 2020 ONSC 1403. In Asif, Stribopolous J. noted:

[42] Robberies involving firearms have historically resulted in significant penitentiary sentences. That was the case long before Parliament legislated a mandatory minimum sentence for robbery with a firearm: see R. v. Sullivan (1972), 9 C.C.C. (2d) 70 (Ont. C.A.), at p. 70 (noting, almost fifty-years ago, that: "10 years is a proper sentence in the normal case of armed robbery"). Robbery with a firearm is an especially grave offence because of "the threat to human life that is represented even by the accidental discharge of the firearm": R. v. Cadieux (1983), 1 O.A.C. 115 (C.A.), at p. 118.

[43] In Cadieux, the Court of Appeal emphasized the offender's "extreme youth" in imposing a four-year sentence, but observed that for a more mature offender, even with no prior criminal record"a lengthy penitentiary sentence" would be required: Cadieux, at p. 18. For example, in R. v. Sanko, [1998] O.J. No. 1026 (Gen. Div.), a 24-year-old offender pleaded guilty to two counts of robbery with a firearm, possession of two stolen vehicles used in perpetrating each of the robberies, and one count of possession of a prohibited weapon used to commit the robberies. The offender held up a gas station and a fast-food outlet with a sawed-off shotgun. The offender came from a broken home and had a lengthy criminal record. The Court of Appeal ultimately substituted a sentence totalling six years of imprisonment in place of the eight-year sentence initially imposed: R. v. Sanko, [2000] O.J. No. 3694 (C.A.).

[44] The case law also recognizes that banks are especially tempting targets for would-be robbers because they have large amounts of cash on hand. Given this, the need for general deterrence has led the Court of Appeal to impose lengthy penitentiary sentences for bank robberies, even for those involving imitation rather than actual firearms: see, for example, R. v. Marsh, 2008 ONCA 374 (six years for bank robbery using imitation firearm); R. v. Nembhard, 2010 ONCA 420 (seven years for robbery of one bank and attempted robbery of another, both using an imitation firearm and disguise); R. v. Abdi, 2014 ONCA 520 (seven-and-a-half years for four bank robberies involving an imitation firearm).

[45] Bank robberies involving firearms, even absent physical injuries, can result in double-digit penitentiary sentences: see, for example, R. v. Caceres, 2012 ONSC 5214 (ten-year sentence imposed on two youthful offenders who had prior criminal records who pleaded guilty to five bank robberies involving loaded firearms).

[44] Possession of a loaded restricted or prohibited firearm in these circumstances also warrants a prison sentence in the range of two to four years. In R. v. Johnson, 2022 ONSC 2688, Goldstein J. reviewed the appellate authorities and trial level decisions in Ontario and concluded at para. 38:

[38] In my respectful view, the usual sentence for possession of a loaded, prohibited handgun contrary to s. 95(1) of the Criminal Code is in the range of two to four years. Certainly, a penitentiary sentence is the starting point. Cases at the lower end of the range are reserved for first offenders who are not carrying the weapon in public or using it for a nefarious purpose, such as to protect a drug trafficking business. Obviously those cases where an offender is on bail for another offence, or carries or abandons the firearm in public, or uses it in conjunction with drug trafficking will attract a sentence at the higher end of the range. Cases such as Filian Jiminez, where a reformatory sentence was imposed, are reserved for exceptional circumstances.

[45] The combination of s. 719(3) of the Code and R. v. Summers, 2014 SCC 26, entitles offenders to a maximum credit of 1.5 days per real day of custody. By my calculation, Mr. Raja has served 746 days of real PSC. That means any sentence of imprisonment is to be reduced by 1,119 days.

[46] In R. v. Duncan, 2016 ONCA 754, the Court stated at para 6:

[…] in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.

[47] In R. v. Marshall #1, 2021 ONCA 344, Doherty J.A. clarified how harsh PSC conditions should be treated:

[50]: … “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.

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

[53] Often times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk the “Duncan” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated in that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed […]

[48] Finally, the law regarding Downes credit was summarized in R. v. Joseph, 2020 ONCA 733, as follows:

[108] The propriety of treating "stringent bail conditions, especially house arrest", as a sentencing consideration was affirmed in R. v. Downes; R. v. Panday (2006), 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: Downes, at para. 29. The criteria to be considered in assessing the weight of the mitigation to be given therefore include 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: Downes, at para. 37.

[49] The granting of this credit is not done through the use of a mathematical formula. It is the responsibility of the sentencing judge to review all of the relevant factors and determine what credit, if any, should be applied.

Analysis

[50] There are a number of aggravating features in this case:

(1) Vulnerability/impact: in my view, the victims in this case were subject to this violence due to their occupations. The impact of these crimes on them cannot be overstated. Their whole lives have been shattered, and the employment of Ms. Paine and Mr. Vidovitch forever altered; (2) Planning: there is significant evidence of planning. There were weapons used, masks worn, a stolen getaway vehicle and a switch of vehicles in the Drumbo robbery. The level of planning and sophistication is an aggravating feature; (3) Role: in the Drumbo robbery, Mr. Raja was the most active perpetrator, directly threatening Ms. Paine's life while having her open or attempt to open the vaults; I do not know on the agreed facts the precise role that Mr. Raja played in the armoured car robbery, but his specific role in the Drumbo robbery is an aggravating feature on that event.

[51] There are also several mitigating factors:

(1) Guilty plea and remorse: Mr. Raja has plead guilty to the charges before me, and has expressed his remorse to the Report writers and directly to me. He has saved the Court the time that would have been necessary to try these cases, and spared the victims from testifying; (2) Mr. Raja's background: as set out above, Mr. Raja's life circumstances led to an increased susceptibility to criminogenic peers. I have considered these circumstances, and his exposure to family violence, as mitigating his overall moral blameworthiness for these charges; (3) Mr. Raja's age and rehabilitative potential: He has strong support from his mother, and the support of his aunt and cousin. He is quite young, and has taken positive steps toward insight. I believe him to have strong rehabilitative potential; and, (4) Harsh PSC: pursuant to Marshall #1, I am considering the period of incarceration from February 14 to July 28, 2021, and November 28, 2021 to late Spring 2022, as harsh PSC due to the health risks brought on by the COVID-19 pandemic. There can be no doubt the pandemic had a significant impact on those incarcerated within the province. I am treating this as a mitigating factor. But for this period of harsh pre-sentence incarceration, I would have imposed an additional four months of custody.

[52] I have reviewed the additional sentencing authorities provided by both counsel as relating to the range of sentences imposed on youthful offenders for armed robberies. Of course, no two cases are exactly the same. Mr. Raja must be sentenced proportionate to the gravity of his offences and his degree of responsibility.

[53] In my view, balancing the mitigating and aggravating features that I have outlined, a penitentiary sentence is required to give proper effect to the principles of sentencing, including denunciation, deterrence, rehabilitation, and restraint. Of all the cases provided to me, the facts in R. v. Sanko are the closest. As in that case, in my view an appropriate total sentence in this case is one of six-years incarceration, taking into account totality and his youth, and the COVID-related harsh pre-sentence custody he endured. This strikes the right balance of an exemplary sentence for his crimes while promoting his rehabilitation and accounting for the mitigating features I have outlined.

[54] Six years is equivalent to 2,190 days. Reducing that by his credited PSC of 1,119 days leaves 1,071 days to be served.

Additional Credit for PSC and Restrictive Conditions

[55] The parties agreed that some credit was appropriate for additional harsh PSC due to lockdowns/shortages at the jails. This includes the overall delay of the sentencing of Mr. Raja due to a date that Maplehurst did not bring him to Court – with no reason given for that non-appearance, which resulted, through no fault of his, in being unable to have finality in this matter and begin properly serving his sentence sooner.

[56] The parties did not agree on a mathematical formula. The Defence also seeks additional credit for a period of time that Mr. Raja had been injured and was not taken to the hospital for necessary surgery.

[57] The records filed before me disclose 28-days while waiting for medical attention, and 478 days of three-for-one to a cell or lock-downs, or restrictive conditions due to a corrections program. Mr. Raja's evidence is that roughly a further 210 days of restrictions occurred after the records that had been subpoenaed to Court.

[58] On the basis of Mr. Raja’s evidence and the records, I agree additional credit for this time is warranted. In my view, it is appropriate to treat this as an additional mitigating feature, but it is easiest to apply it as a deduction in the form of PSC as the parties agreed before me. I therefore deduct a further 190 days to reflect this time.

[59] The parties also agreed that some credit was appropriate for the time Mr. Raja spent on restrictive pre-trial release conditions of house arrest but did not agree on how much time should be apportioned. Mr. Raja's house arrest and GPS monitoring conditions were in effect for 14.5 months. Given his youth I agree that this was a punitive condition and requires credit.

[60] However, it is worth noting that Mr. Raja returned to custody due to charges alleging a breach of the conditions. This is a factor that, in my view, warrants a lesser credit. In all of the circumstances, I am satisfied it is appropriate to deduct a further 120 days for the punitive conditions of pre-trial release.

[61] The parties did not agree that there should credit for the use of excessive force. Mr. Raja testified, and I saw evidence in the form of videos and officer reports from Maplehurst, to an incident in which pepper spray/pepper spay balls were used in his cell. This related to a serious assault on a guard by an inmate that had occurred on Mr. Raja's floor and had led to days of unrest among the inmates. The Crown disputes that an excessive use of force occurred.

[62] I accept that the correctional facility was responding to a difficult situation. I do not accept Mr. Raja's evidence that the guards beat him, that the pepper spray balls left visible injuries, or that he was bleeding from his back. All of this is contradicted by portions of the video that were played in Court.

[63] It is Mr. Raja's onus to prove an excessive use of force. While I accept he was subjected to pepper spray, I am not satisfied that the use of that force in the circumstances of clearing the cells on his range due to the unrest and threats of violence that had been made, was excessive. The facility was conducting a search of cells and inmates for weapons. This was reasonable. Mr. Raja appeared to me to acknowledge in cross-examination that he was questioning the guards and not directly complying. I have seen the video of the manner in which the guards conducted the removal of inmates from each cell of the unit. Only Mr. Raja and his cellmate were subjected to this force, and the reasons were documented in the officer reports. I am not satisfied that Mr. Raja has met his onus of establishing that the use of force was not justified in the circumstances. There will be no further deduction of sentence for excessive use of force.

Sentence

[64] The total sentence will be one of 2,190 days less credit for 1,429 days credited as PSC, leaving 761 days or approximately 25 months to serve.

[65] I have very carefully considered the Defence submission that it would be more appropriate to sentence Mr. Raja to a sentence that leaves less than two years to be served, so that a reformatory prison term results, which can be followed by probation. While I am of the view that rehabilitation is a very important sentencing principle in this case, acceding to that submission would elevate it in priority too far above the other principles that must be met. A penitentiary sentence is necessary to properly give effect to the deterrence and denunciation of these crimes for this offender.

[66] To properly reflect the principle of totality, in accordance with R. v. Ahmed, 2017 ONCA 76 and R. v. Jewell (1995), 100 C.C.C. (3d) 270 (Ont. C.A.), the sentence will be recorded as:

(1) On count 1 on Information 21 35000667, the Drumbo BMO robbery, the sentence is 2190 days less credit for PSC of 1,429 days, leaving 25 months to be served; (2) On court 1 on Information 21 15000898, the armoured-car robbery, the sentence is 2190 days less credit for PSC of 1,429 days, leaving 25 months to be served, concurrent to count 1 on Information 21 35000667; (3) On count 10 on Information 21 15000898, unlawful possession of a loaded, restricted firearm, the sentence is 25-months custody, concurrent; (4) On count 12 on Information 21 15000898, possession of the firearm in breach of a YCJA Order, the sentence is 12-months custody, concurrent; (5) On count 20 on Information 21 15000898, breach of a non-contact condition, the sentence is 60 days custody, concurrent.

[67] I appreciate that the same total sentence may have been reached through a combination of consecutive sentences reflecting the gravity of the other offences. I have considered it more appropriate on the facts of this case to impose concurrent sentences as outlined.

Ancillary Orders

[68] The Crown seeks ancillary orders which were not opposed.

[69] Pursuant to s. 109(2) of the Code, Mr. Raja is prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for 10 years and from possessing a prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

[70] DNA: robbery is a primary designated offence for the purposes of the DNA provisions. Mr. Raja is ordered to provide such samples of his bodily substances as are reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act in relation to these charges.

[71] I am satisfied that the Victim Fine Surcharge would amount to an undue hardship on Mr. Raja, given his lack of employment prior to custody, the restrictions on his liberty when he was on release, and his current educational status. It is waived.

Released: September 16, 2024 Signed: Justice R. Wright