ONTARIO COURT OF JUSTICE

DATE: November 15, 2024

COURT FILE No.: Central East - Newmarket - 4911-998-23-46100218

BETWEEN:

HIS MAJESTY THE KING

— AND —

REYAN CHAUDHRY

Before Justice A. A. Ghosh

Heard on November 14, 2024

Reasons for Sentence

Released on November 15, 2024

Counsel: T. Hamilton and E. Shaw.................................................................. counsel for the Crown D. Leitch......................................................................................... counsel for the Defendant

Ghosh J.:

I. Overview:

[1] Reyan Chaudhry pleaded guilty before me to 17 charges spanning four (4) jurisdictions in the General Toronto Area (GTA). He was a target of a cross-jurisdictional investigative project into residential break and enters and other offending that showed similar alleged hallmarks or patterns.

[2] Related charges were waived in from various jurisdictions for this resolution. This is a joint submission for 5 and a half years. There is a remaining and significant contest about quantification of any mitigation for the time spent during particularly harsh presentence custody, commonly termed as Marshall or Duncan mitigation.

[3] All the offending was clearly and admittedly informed by crippling addiction. Mr. Chaudhry is 20 years old with no criminal record. These are my sentencing reasons.

II. Summary of the Evidence:

[4] A five-page agreed statement of fact was submitted revealing a variety of offending spanning several jurisdictions.

(i) Plea to Toronto Charges of Flight Police and Possession over $5000

[5] On October 17th, 2022, the offender was driving a stolen car near Cedarbrae Mall in Toronto. He was with a young person. They were believed to be using the stolen taxi to commit taxi frauds and steal debit cards from others. Police came upon the car and tried to stop it.

[6] Mr. Chaudhry was driving and fled from the police cruiser at a high rate of speed. His erratic driving continued, and he caused a motor vehicle collision. While the youth was apprehended at the scene, Mr. Chaudhry hid, arranged an Uber, and fled to the Scarborough Town Centre.

[7] However, his fingerprints were located on the stolen car, along with stolen debit cards and cheques. A search warrant was executed on his family home yielding similar items.

Pleas to Peel Charges for Breach of Undertaking, Flight Police, Possession of a Stolen Vehicle

[8] On March 22, 2023, a stolen car was reported. The owner found his car with Mr. Chaudhry inside. The offender drove off at a high rate of speed, until police intercepted the stolen car employing stop-sticks.

[9] The vehicle flipped over on its side as a result, with Mr. Chaudhry inside. He was breaching his undertaking not to be in the driver’s seat of a motor vehicle.

Pleas to Guelph Charges of Impaired Driving, Fail to Remain at the Scene of a Motor Vehicle Collision, Possession Over $5000, Fail to Comply with Release Order, Fail to Comply with Undertaking

[10] On June 9th, 2023, Mr. Chaudhry caused yet another motor vehicle collision, and this time in Guelph. He had crashed a stolen Maserati into a Toyota Rav 4 being driven by a then injured victim, Ms. Harloff. Airbags were deployed.

[11] Prior to the collision, witnesses observed the Maserati to be driving at high rates of speed, fishtailing, and going in and out of a ditch, and forcing other vehicles to avoid it. The oncoming vehicle had to swerve off the road to avoid a collision. Ms. Harloff suffered an abrasion to her collar bone area, a large bruise on a toe, and soreness to her upper body for days.

[12] Mr. Chaudhry again had fled the scene of another motor vehicle collision towards a nearby townhouse complex. A witness chased him and apprehended him until the police arrived and intervened. Mr. Chaudhry appeared impaired.

[13] A qualified police drug recognition evaluator tested him, and he failed the multi-step evaluation and was determined to be impaired by a drug. Blood tests confirmed that he was impaired by cannabis and a depressant at the time of driving.

Pleas to Newmarket Charges of Three (3) Residential Break and Enters, Theft of a Motor Vehicle x2, Flight Police, Fail to Comply Release Order, Use of Stolen Credit Cards

(i) Firewood Drive, Richmond Hill

[14] On June 2nd, 2023, Mr. Chaudhry and his associates entered an unlocked car parked at a Richmond Hill home and used the garage door opener within to open the garage door and entered the home.

[15] The group then located and stole the key fob for the 2017 blue Audi Q7 outside, stole it, and fled the area. They drove to a gas station and Mr. Chaudhry was captured on video exiting the passenger seat of the stolen Audi.

(ii) Carmichael Crescent, King City

[16] On June 2nd, 2023, Mr. Chaudhry and these same associates attended an address in King City, entered an unlocked 2017 black Cadillac XTS, and again used the garage door opener to enter the home. They stole a number of bags with valued items. One of the bags had the key fob for a Mercedes on the same property, so they returned and stole it and left the area.

(iii) McCLure Drive, King City

[17] At another time that same day, the group attended another residence in King City, and attended the victim’s unlocked vehicle parked in the driveway. Again, they used the remote garage door opener and entered the home.

[18] The suspects may have been deterred from entering too deep into the home due to the family dogs barking. CCTV footage from the home showed a blue Q7 Audi leaving the area around the time the dogs were barking.

[19] Days later, on June 6th, 2023, police attempted to stop the stolen blue Audi Q7, stolen days before from the Firewood Drive address in Richmond Hill. The car fled at a high rate of speed. This vehicle was driving in tandem with a second stolen vehicle, a 2020 Blue Maserati.

[20] A review of CCTV footage from the area showed Mr. Chaudhry outside of the open passenger door of the blue 2017 Audi Q7 with the male who drove the stolen Maserati moments before the officer tried to initiate a traffic stop.

[21] The officer pursued both vehicles, and both vehicles failed to stop for a red light, continued through the intersection at a high rate of speed in a dangerous manner.

III. Victim Impact Evidence:

[22] Alicia Yetman lived on McClure Drive, King City with her family when the break-in occurred. She shared:

“Though no valuables were taken, the emotional and psychological tolls have been difficult. Mainly, the ongoing fear for our safety. Our home since has been a place where my family does not feel secure, and the feeling of anxiety has followed us for months since the break-in. I often wake up to sounds in the middle of the night, fearful that someone is breaking in. There is also a sense of violation, knowing that strangers were trying to enter the house though the laundry room door, invading our personal space while we were there, not knowing what could have happened. Were we in danger? Did they have a weapon? Had our dogs not been barking to protect the family, I don’t know what would or could have happened.”

[23] Abigail Tossios wrote on behalf of her family that lived at one of the homes Mr. Chaudhry and his associates broke into. They lost thousands of dollars in vehicles, iPhones, and much of it was not recovered through insurance. A treasured necklace from a deceased loved one was taken. To quote from her directly:

“We’re still disturbed today by every noise we hear in the house. We wake up in the night constantly checking the security cameras. The first thing we do in the morning is look out the window to see if our cars are still there. Mostly, it’s the concern that the family is safe and thoughts of what may have happened if we had faced them when they were in our home. They didn’t just steal the car and items but the fact that they entered freely and confidently into our office and dining room while we’re all upstairs sleeping is still the most upsetting part of the incident. It appears that they weren’t just looking to steal the car but anything and everything they can get and could get and got lucky with finding keys to the car.”

IV. Circumstances of the Offender:

[24] Mr. Chaudhry is a 20-year-old first-time offender. Unsurprisingly, this collection of serious offending was informed by a serious opioid addiction. His family is very prosocial and remains supportive.

[25] The offender failed to finish high school, and there may be an undiagnosed ADHD condition. He worked briefly for a call centre until 2020. He has abstained from drugs during his time in presentence detention and has completed addiction programs for drugs and alcohol.

[26] He hopes to attend a trade school upon his release and pursue work as an electrician. In the short term, he would move back home with his parents, and they have arranged employment with a family friend.

[27] When invited to address the court, Mr. Chaudhry reflected on the pain and trauma he would have caused the victims of his crimes. He shared he would not wish that upon anyone. He looked inwards, demonstrated insight, and reflected that were it not for the severe addiction he was struggling with, none of this would have happened. He could not reconcile that version of himself that committed these crimes with who he is today. He remains hopeful for the future and to move forward in a productive, pro-social way. He is deeply remorseful for his crimes.

V. Applicable Principles of Sentencing:

[28] Deterrence and denunciation must be the paramount sentencing objectives for this confluence of serious offending involving residential break and enters, stolen cars, flight from police and the other serious offences committed.

[29] Given his relative youth, the principles of restraint, rehabilitation and eventual reintegration into the community must be considered as well. The umbrella sentencing principle of proportionality requires me to balance the seriousness of the offences with the moral responsibility of a youthful offender in the throes of addiction. I must consider the principle of parity as well.

VI. Analysis:

[30] All agreed that a global 5.5 years sentence is fit, and I must respect and defer to joint submissions. Indeed, I find the proposal fit and restrained. This confluence of offending is beyond the pale and risked the safety and security of motorists, police officers and owners of vehicles and homes. We see many people with addiction in our courts everyday, but this is a rare collection of serious offending from a first-time offender.

[31] Residential break and enters must be deterred through deterrent terms of custody, usually in an institutional setting. Auto thefts have become such a problem in our province that task forces have been created to investigate and prosecute them. It has generated local, national, and international headlines. I take judicial notice of the widespread problem, but only insofar as it supports the joint submission. I know from presiding here locally for almost a decade, that York Region has become increasingly plagued with car thefts in recent years.

[32] Residential break and enters pose a tremendous problem in York Region as well. So does impaired driving. So do dangerous driving, and flight from police. Mr. Chaudhry has ticked a lot of boxes in committing prevalent and damaging offences that undermine public safety and tear at the fabric of our society.

[33] I accept the joint submission of 5.5 years, including the agreed upon apportionment between offences. It is fit and restrained. I defer to it. I accept it.

[34] The only contests that remain are the approach to quantifying any mitigation for particularly harsh conditions of presentence custody and the driving prohibition.

Harsh Presentence Custody Conditions

[35] Our Court of Appeal in R. v. Duncan, 2016 ONCA 754, para. 6 observed that “… particularly harsh 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.”

[36] Years later in R. v. Marshall, 2021 ONCA 344, para. 52, the Court of Appeal clarified: “Unlike Summers (1.5:1) credit, “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 can be a mitigating factor.”

[37] Importantly, while quantifying this factor is common, it should not, “skew the calculation of the ultimate sentence.” Here, as I have stated, the restriction of a quantified joint submission necessitates a specific quantification of this mitigation, unless I determine that no further mitigation is warranted.

Total Presentence Custody with Agreed Upon Summers Credit

[38] Mr. Chaudhry has spent 524 actual days of presentence custody. Applying the standard Summers credit of 1.5 to 1, counsel agreed that he must be credited for at least 786 days (or 2 years and 56 days).

[39] As context, to achieve the joint submission of 5.5 years, approximately 3 years and 4 months further must be served. This frames the positions of the parties.

Positions of the Parties on Quantifying Mitigation for Harsh Presentence Custody

[40] Both sides agree that the Marshall mitigation should be quantified here. They disagree on the proposed quantification. The Crown submits that given the restraint in the total sentence as well as the discrete agreed upon proposed breakdowns, any further deduction beyond a “few” months would “skew” the calculation of the fit sentence. There is recent appellate support for such application of this principle from our Court of Appeal.

[41] The defence submits that given the seriousness of the harsh custodial conditions, Mr. Chaudhry should not serve much more than two (2) additional years. That would require me to quantify the Marshall mitigation at approximately sixteen (16) months.

Lockdowns and Triple-Bunking

[42] Mr. Chaudhry spent 459 days at Maplehurst. 149 days were full lockdowns (32% of his detention). This signals that he spent 1/3 of his time there in segregation conditions, as defined by the relevant regulation of the Ministry of Correctional Services. I accept segregation type conditions are uniquely harsh and presumptively have a terrible impact on the mental of health of any detainee.

[43] He spent 47 days under partial lockdowns. The total lockdown days was calculated at 196 days or almost half of his time at Maplehurst.

[44] Mr. Chaudhury has spent the last 65 days at Central East Correctional Centre. The lockdown records between September 11th and October 3rd support that he was on full lockdown for 9 days and partially locked down for 30 days. I accept that fairness and equity dictate that I accept this frequency of the lockdowns would have continued to today, supporting another 12 full lockdowns and 60 partial lockdowns.

[45] I accept counsel’s submission that out of his 524 days of overall detention, 304 of them were on lockdown of some sort. I accept 170 of them were full lockdowns and 134 were partial lockdowns. Along with the evidentiary record of the frequency of triple bunking, I accept Mr. Chaudhry’s time in pretrial detention was harsh and warrants further mitigation.

[46] Defence counsel presented me with an example from Alberta where segregation type presentence detention warranted a specific quantified ratio of 3.75 to 1.

[47] I find such an applied ratio in this case, runs contrary to the law in Ontario that any quantification cannot skew the overall calculation of a fit sentence. Indeed, a deduction in this case of 16 months would eradicate the fitness of the total sentence. I accept that an affidavit of hardship was not required given the force of the records, but I only have the understandably inferred impact on the detainee to apply to the analysis. I am not sure such an affidavit would necessarily have moved the needle much more anyway.

[48] That said, the Crown’s modest proposed quantum of a “few” months feels inadequate in light of the evidentiary record. I have determined that a fit quantification of time spent under particularly harsh presentence custody conditions is six (6) months, to be split evenly between the Newmarket and Peel charges.

[49] A sentence of less than five years would skew the overall calculation of a fit sentence, and it would do violence to the spirit of the joint submission. There is a remaining contest regarding the length of the driving prohibition. The Crown seeks a 10-year driving prohibition, given the collection of highly criminalized driving. The Defence seeks a 3-5 year prohibition, given the offender’s relative youth. I have determined a fair balancing of the competing interests requires a seven (7) year driving prohibition.

VII. Conclusion:

[50] The global sentence is one of five (5) years, to be apportioned as follows:

Sentence 1

Newmarket Charges – 36-month sentence

• 1,095 days to be served, before any credit (Concurrent)
• Noting 524 “real” days
• Less 786 days (now enhanced by 1.5 to 1)
• 309 days remaining of time to be served on Sentence 1.

Sentence 2

Peel Charges - 9 months consecutive to Sentence 1

• 270 days, consecutive to Sentence 1, but concurrent for all Peel charges

Sentence 3

Guelph Charges - 9 months, consecutive to Sentence Number 2, but concurrent to all Guelph charges.

• 270 days, consecutive to Sentence 2, concurrent on all Guelph charges

Sentence 4

Toronto Charges – An additional 6 months consecutive to Sentence 3, but concurrent for all Toronto charges

• 180 days, consecutive to Sentence 3 but concurrent to each other.

That is 1,029 days, total, remaining to be served (just over 34 months)

[51] Ancillary orders:

• DNA primary (break and enter charges only)
• Seven (7) year s.320.24 driving prohibition
• S.109 weapons prohibition for 10 years (break and enter charges only)
• Victim fine surcharged, waived as undue hardship.

[52] My thanks to counsel.

Released: November 15, 2024 Signed: Justice A. A. Ghosh