Court File and Parties

Date: October 21, 2025

Court File No.: 4810-998-24-48118818

Ontario Court of Justice

Between:

His Majesty the King

— and —

Yousaf Bilal Sheikh

Before: Justice David Porter

Reasons For Sentence Released: October 21, 2025

Counsel:

• M. Sengupta-Murray for the Crown
• U. Kancharla, counsel for Yousaf Bilal Sheikh

Reasons for Sentence

Porter J:

[1] Introduction

Yousaf Bilal Sheikh (Mr. Sheikh) entered a plea of guilty on May 20, 2025 to one count of robbery on June 14, 2024, contrary to section 343(a) of the Criminal Code. At the request of the defence, the matter was adjourned several times after the pre-sentence report was completed, until a sentencing hearing was ultimately held on September 19, 2025. These are my reasons for the sentence to be imposed today.

[2] Agreed Facts

The following were the Agreed Facts admitted pursuant to s. 655 of the Criminal Code on the plea of guilty on May 20, 2025:

On March 6, 2023, Yousaf Bilal Sheikh was arrested and was charged with attempt murder as well as a number of firearms offences.

On April 21, 2023, Mr. Sheikh appeared in the Toronto Ontario Court of Justice and entered into a Release Order. The Release Order included the following term:

2. Remain in your residence at all times (house arrest), except

• for medical emergencies involving you or a member of your immediate family (spouse, child, parent, sibling)
• when you are in the direct and continuous presence of your surety Salman Bilal Sheikh.

[3] Variation of Release Order

As of May 31, 2024, variations were granted to Mr. Sheikh's release to permit him to be out of his home in the direct and continuous company of his mother, Nabila Malik, and to permit him to reside at his mother's residence in Oakville.

[4] Release Order Status

As of June 14, 2024, Mr. Sheikh was still bound by the release order.

[5] The Carjacking — Initial Approach

On Friday June 14, 2024 at approximately 2:30 p.m., Mr. Sheikh approached a green Mazda, operated by Fanuel Mehari, which was northbound on Parliament Street and waiting to turn left onto Front Street in the City of Toronto.

[6] The Carjacking — Threat and Forced Entry

Mr. Sheikh walked up to the vehicle and attempted to open the front passenger-side door. He then proceeded to the driver's side door. Mr. Sheikh opened the driver's side door and told Mr. Mehari to "get out of the car, or I'll shoot you." Mr. Sheikh then forced his way into the vehicle while Mr. Mehari was still in the driver's seat, causing Mr. Mehari to get out of his vehicle.

[7] Flight and Collisions

Mr. Sheikh fled the scene in Mr. Mehari's vehicle, travelling westbound on Front Street. He collided with a white BMW, causing minor damage to the front bumper of the BMW. He also rear-ended a white Honda Accord.

[8] Continued Flight and Erratic Driving

Mr. Sheikh did not stop following either collision. He continued to flee in the stolen vehicle, travelling westbound on Front Street and driving erratically in the early afternoon on a weekday in a busy commercial area.

[9] Vehicle Abandonment and Attempted Second Carjacking

The green Mazda then became inoperable, as all four tires were flattened as a result of the collisions. Mr. Sheikh then abandoned the damaged green Mazda on the street in the area of Lower Jarvis Street and Queens Quay East. Mr. Sheikh approached another motor vehicle, which had been forced to stop behind the green Mazda he had abandoned. He tried to enter that vehicle by banging on the driver's side window but was unable to do so as the door was locked.

[10] Police Pursuit and Apprehension

Police Constable ("PC") Wong, of the Toronto Police Service, had been on general patrol in the area. The officer was called over by civilian witnesses to the carjackings, and pursued Mr. Sheikh with the assistance of a civilian driver. PC Wong caught up to Mr. Sheikh just after Mr. Sheikh abandoned the green Mazda and was attempting to enter other vehicles.

[11] Arrest

Mr. Sheikh was arrested by PC Wong of the Toronto Police Service at 2:37 p.m. PC Wong advised Mr. Sheikh of his right to speak to counsel and caution. Mr. Sheikh was transported to 51 Division, and was held for bail. Mr. Sheikh did not have any weapons on his person when he was arrested, and witnesses did not report seeing any weapon.

[12] Injuries

No injuries were reported by any victims.

[13] Damage to Stolen Vehicle

The green Mazda was damaged as a result of Mr. Sheikh's conduct while driving it. The damage is as follows: scratches, dents and white paint transfer to the driver's side door; scratches and dents to the driver's side of the vehicle; all wheels were flat and as such the vehicle was inoperable.

[14] Damage to Other Vehicle

The white Honda Accord, which Mr. Sheikh rear-ended, was also damaged as follows: dents, bumps and scratches to the passenger-side rear bumper.

Background of Mr. Sheikh

[15] Personal Information

Mr. Sheikh is currently 23 years of age and was 22 years old at the time of the offence. He is single, a Canadian citizen, and has no dependents. He has no prior criminal record.

[16] Residence

Prior to his arrest in relation to this offence, he lived with his mother in Oakville.

[17] Family Support

A pre-sentence report was prepared which indicated that he has a close and supportive relationship with his family.

[18] Early Life and Trauma

He grew up in Toronto until the age of 19 in an area which was described as a bad area. Mr. Sheikh indicated that he had experienced the deaths of friends due to gun violence and drug overdoses and that he had lost four friends as a result.

[19] Education and Employment History

At the age of 19, his family moved to Courtice, Ontario, and at the age of 22, he moved to Oakville where he lived with his mother. He completed his high school education as well as seven months of an IT course at a private college. He acknowledged that his academic performance had been "just above passing."

[20] Employment at Time of Offence

At the age of 21, he obtained an IT system tech position with an insurance company where he worked. He held this position, making $65,000 per year, at the time of his arrest on March 6, 2023 on the charge of attempted murder, on which he was subject to a house arrest release order at the time of his robbery offence on June 14, 2024. On May 31, 2024, his release order was varied to permit him to be out of his home in the direct and continuous company of his mother Nabila Malik, and to live with her at her home in Oakville. This was the release order in place at the time of his robbery offence.

[21] Substance Use

Mr. Sheikh does not suffer from any addictions as, according to the presentence report, while he had used marijuana since the age of 16 to deal with stress, prior to his arrest he had stopped smoking marijuana, and rarely consumed alcohol.

[22] Mental Health

According to the presentence report, he had never had an assessment, diagnosis, counselling, or any medication for mental health concerns.

[23] Guilty Plea

Mr. Sheikh entered a plea of guilty, a significant mitigating circumstance. While the plea was not entered at an early date, through counsel, he indicated early in the proceedings an intention to plead guilty.

[24] Remorse and Statement to Court

Mr. Sheikh filed a written statement to the court addressed as a letter to the victim of his carjacking. He expressed remorse for his conduct and apologized to the victim for what he described as his horrible actions that day. He indicated he wished he could go back and change his actions that he committed that day and expressed a determination to be a changed person upon his release. He stated that he was deeply sorry and apologized to the victim any witnesses, society and the court system and expressed sincere regret for his offence.

[25] Prior Conviction Status

Mr. Sheikh had no prior convictions when he committed the robbery offence in this case on June 14, 2024. He was, however, on a release order in relation to a charge of attempted murder on November 29, 2022 for which he was arrested on March 6, 2023. He was subsequently convicted of the charge of attempted murder after trial.

The Law

[26] Fundamental Purpose of Sentencing

The general principles of sentencing are established in the following provisions of the Criminal Code. Section 718 states:

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

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender, and other persons, from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims, or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community

[27] Fundamental Principle of Sentencing

Section 718.1 of the Criminal Code defines the fundamental principle of sentencing:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[28] Proportionality Principle

In R. v. Ipeelee, 2012 SCC 13, the Supreme Court of Canada defined the principle of proportionality as follows at para. 37:

The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing – the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 533:

"It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

[29] Reaffirmation of Proportionality

In its decision in R. v. Parranto, 2021 SCC 46, the Supreme Court of Canada reaffirmed the importance of the principle of proportionality in sentencing. The majority stated at paragraphs 10 and 12:

The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal. Unlike other principles of sentencing set out in the Criminal Code, proportionality stands alone following the heading "Fundamental principle" (s. 718.1). Accordingly, "[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender" (R. v. Friesen, 2020 SCC 9, at para. 30). The principles of parity and individualization, while important, are secondary principles.

As to the relationship of individualization to proportionality and parity, this Court in Lacasse aptly observed:

Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. [para. 53]

Individualization is central to the proportionality assessment. Whereas the gravity of a particular offence may be relatively constant, each offence is "committed in unique circumstances by an offender with a unique profile" (para. 58). This is why proportionality sometimes demands a sentence that has never been imposed in the past for a similar offence. The question is always whether the sentence reflects the gravity of the offence, the offender's degree of responsibility and the unique circumstances of each case (para. 58).

[30] Sentencing Principles

Section 718.2 of the Criminal Code states, in part:

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, ...

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

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(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...

Sentencing Ranges

[31] Sentencing Ranges as Guidelines

In R. v. Lacasse, 2015 SCC 64, the Court makes it clear that sentencing ranges are important guidelines in sentencing, but do not create hard and fast rules, whatever the circumstances of the offender. The Court stated at paras 58 and 60:

[58] There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:

A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. (Nasogaluak, at para. 44).

[60] In other words, sentencing ranges are primarily guidelines, and not hard and fast rules: Nasogaluak, at para. 44. As a result, a deviation from a sentencing range is not synonymous with an error of law or an error in principle. Sopinka J. stated this clearly in McDonnell, although he was referring in that case to categories of assault:

…in my view it can never be an error in principle in itself to fail to place a particular offence within a judicially created category of assault for the purposes of sentencing . . . . If the categories are defined narrowly, and deviations from the categorization are generally reversed, the discretion that should be left in the hands of the trial and sentencing judges is shifted considerably to the appellate courts. [para. 32]

Rehabilitation

[32] Rehabilitation as a Fundamental Value

As noted by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, at para. 4:

One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.

[33] Rehabilitation for First Offenders

The sentencing principle of rehabilitation is important when sentencing a first offender, as is the case with Mr. Sheikh.

[34] Principle of Restraint

The Court of Appeal has also stressed the principle of restraint in imposing a custodial sentence on a first offender. As Gillese J.A. stated in R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452 at paras. 32-34:

[32] The principle of restraint operates in three ways in the present case. First, it is an important consideration because the appellant was a first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 30 O.R. (3d) 538, [1996] O.J. No. 3369 (C.A.), at p. 545 O.R. [page 651]

[33] Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas, [2006] O.J. No. 364, 207 O.A.C. 226 (C.A.), at para. 5:

[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.

[34] In serious cases and cases involving violence, rehabilitation alone is not the determinative factor -- general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, [2005] O.J. No. 862, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.

[35] Youth as a Mitigating Factor

In its recent decision in R. v. Wesley, 2025 ONCA 51, at paras. 100-102, the Court stated the following:

[100] Youth is a mitigating factor in sentencing: R. v. Hills, 2023 SCC 2, 477 D.L.R. (4th) 1, at para. 161. This court recently reiterated in R. v. Habib, 2024 ONCA 830, at para. 31, that when sentencing youthful first-time adult offenders, judges must practice restraint, prioritize rehabilitation and account for immaturity, which may mitigate culpability even when it does not excuse the offence.

[101] In this case, while there is no excuse for the appellant's actions, which had grievous consequences, it is clear that youthful immaturity may well have played a role in his decision to drink to such excess. Moreover, and in any event, his youth and lack of prior record demonstrate that he has significant potential for rehabilitation.

[102] Because of their high rehabilitative prospects, youthful offenders should benefit from the shortest possible sentence that is proportionate to the gravity of the offence: Hills, at para. 165; R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797, at para. 7.

[36] Prior Conviction Status and Pattern of Offending

Mr. Sheikh had no prior convictions when he committed the robbery offence in this case on June 14, 2024. He was, however, on a release order in relation to a charge of attempted murder on November 29, 2022 for which he was arrested on March 6, 2023. He was subsequently convicted of the charge of attempted murder. As he had not been convicted prior to the robbery offence, it is not a prior conviction for sentencing purposes. He is a youthful first offender in relation to the robbery offence. However, pursuant to Lord Coke's principle, the serious conviction for attempted murder does indicate a pattern of ongoing offending relevant to Mr. Sheikh's current rehabilitative potential: R. v. Wisdom, 2024 ONSC 4047, per Code J. at para. 41; R. v. Graham, 2018 ONSC 6817 at para. 30-32, affirmed 2020 ONCA 692.

Sentencing for Carjacking

[37] Applicable Principles for Carjacking

In R. v. Noor, Clarke J. considered the applicable principles applicable to a sentence for robbery, in the context of carjacking, after trial for a youthful offender, with one prior weapons conviction, who engaged in carjacking of a motor vehicle, with another man. Mr. Noor's accomplice threatened to shoot the driver of the car if he did not relinquish the car. The driver left the car and Mr. Noor and his accomplice sped away.

[38] Seriousness of Carjacking

At para. 22, Clarke J. stated:

At the risk of stating the obvious, robbery is a very serious offence, as demonstrated by the fact that it is punishable by life imprisonment. Carjacking is a serious type of robbery. The average person enjoys a degree of privacy and, more importantly, feels a sense of security while travelling in his or her motor car, as opposed to walking or using public transport. Although not so sacrosanct as the expectation to be secure in one's own home, as the excerpts from the cases that follow make plain, the expectation to be able to travel about the community in safety in one's own vehicle is recognized as a fundamental value of Canadian society. This value is something to be assiduously fostered and protected.

[39] Predominant Sentencing Considerations

After reviewing applicable sentencing precedents, Clarke J. stated at para. 26:

...... while obviously a sentencing court must take account of all applicable principles of sentencing, including rehabilitation, I conclude that denunciation and deterrence, both general and specific, must be the predominant sentencing considerations for this type of offence.

[40] Sentence in Noor

A sentence of 3.5 years less credit for pre-sentence custody was imposed.

[41] Cassanova-Alman Case

In R. v. Cassanova-Alman, 2023 ONSC 1470, F. Dawson, J. considered the sentence to be imposed, after trial, for a racialized young person, who was 19 at the time of the offence who, had a prior youth record for 2 robberies, who committed a car jacking after fleeing a robbery of a pharmacy he committed with an accomplice.

[42] Facts in Cassanova-Alman

In the course of fleeing from the police, the accused jumped into the rear passenger seat of a pickup truck, and when the driver refused to help him, he climbed into the front seat and pushed the driver out of the truck. He drove off in the pickup truck at a high speed. When he learned that there was an eight-year-old daughter of the driver in the truck, he stopped and let the girl out, and then took off again in the in the truck while pursued by the police. He subsequently abandoned the truck and escaped from the police on foot.

[43] Sentencing Range for Carjacking

At paragraph 50 of his decision, F. Dawson J stated:

Focusing on the carjacking, I have been referred to two helpful decisions of Clarke J. where he undertook a review of sentencing cases related to carjacking robberies. See R. v. Noor, [2007] O.J. No. 4092 (S.C.J.) and R. v. Enotie, [2013] O.J. No. 6246 (S.C.J.). At para. 22 of Noor, Clarke J. noted that carjacking is a particularly serious form of robbery given that people expect to travel in safety and privacy in their own motor vehicles. In Enotie, at paras. 31-40, Clarke J. reviewed 10 cases to determine a range of sentence. The sentences imposed in the cases considered ranged from two years to 16 years. The facts in the case at the very high end were extreme and involved other serious offences. I agree with Crown counsel submissions that typically sentences for carjacking are from about 3½ to 5 years in length. I point out that weapons are often involved in carjacking cases.

[44] Sentence in Cassanova-Alman

In that case, Justice Dawson imposed a sentence of three years concurrent for the carjacking robbery and for the related dangerous driving. The sentence was consecutive to one year for the pharmacy robbery, for a total sentence of 4 years, less pre-sentence custody calculated with a credit of 1.5:1 for each day of actual custody served.

[45] Sentencing Considerations in Cassanova-Alman

In imposing the sentence, he stated at paragraph 74: "I have placed weight on the accused's youthfulness and prospects for rehabilitation as well as on the need for denunciation and deterrence. The harsh conditions during presentence custody are also a factor."

Conclusion

[46] Crown's Sentencing Position

In her very fair submissions, Crown counsel submits that, taking into account all of the relevant aggravating and mitigating circumstances, a custodial sentence of two years less a day, less presentence custody, is the appropriate sentence in this case, giving full effect to Mr. Sheikh's status as a youthful first offender, entitled to a sentence which gives appropriate consideration to restraint and rehabilitation.

[47] Mitigating Circumstances — Guilty Plea

The Crown submits that the mitigating circumstances in this case include his guilty plea, which was not made at the earliest opportunity, but which to his credit was indicated as his intention at an early date in judicial pre-trials.

[48] Mitigating Circumstances — Youth and Family Support

The Crown also notes as a mitigating factor his status as a youthful first offender, who has strong family supports and a positive home environment, and that he completed education and was employed at the time of his arrest on his attempted murder charges.

[49] Aggravating Circumstances — Threat of Firearm

By way of aggravating factors, the Crown notes, in the absence of a victim impact statement, the inevitable serious impact on a victim who experiences a carjacking, after having been threatened that if he did not turn over his car to Mr. Sheikh, he would be shot. While Mr. Sheikh did not have a firearm, his threat to use a firearm is nevertheless an aggravating circumstance.

[50] Aggravating Circumstances — Breach of Release Order

The fact that the offence was committed in breach of a condition of his house arrest bail on a charge of attempted murder is a further aggravating circumstance.

[51] Defence Position

Defence counsel does not challenge the aggravating circumstances but places substantial reliance upon Mr. Sheikh's guilty plea, his status as a youthful first offender, the remorse indicated in his statement to the court, his supportive family, his education and employment history and the favourable pre-sentence report.

[52] Defence Sentencing Submission

Defence counsel notes the substantial mitigating effect of the harsh pre-sentence custody, including triple bunking for 68 days and 166 days of full or partial lockdowns. Defence counsel submits that the appropriate sentence is in the 9-to-12 month range. She submits that 6 months of Mr Sheikh's actual pre-sentence custody gives him an enhanced credit of 9 months. She submits that an additional Duncan credit should create a further 3-month credit, for an effective sentence of 12 months satisfied by using 6 months of his available pre-sentence custody.

[53] Crown's Sentencing Range

In her written submission, Crown counsel states that the sentence proposed by the Crown of two years less one day is "at the very low end of the appropriate range of sentence described in the case law". I agree with this submission.

[54] Court's Sentencing Decision

In my opinion, giving full effect to the mitigating circumstances in this case, including Mr. Sheikh's youth, his status as a youthful first offender, the principle of restraint that should apply in this context, and the importance of the principle of rehabilitation for youthful first offenders, the appropriate sentence in this case having regard to the serious nature of the offence, and Mr. Sheikh's substantial moral blameworthiness, is a sentence of two years less a day of actual incarceration, prior to any reduction for harsh pre-sentence custody, and prior to the application of Summers credit.

Pre-Sentence Custody

[55] Detention on Both Charges

As previously noted, Mr. Sheikh was on a release order for attempted murder when he committed the robbery in this case on June 14, 2024. As a result of this charge, he was subsequently detained on both the attempted murder charge and the robbery charge which is the subject of this sentencing.

[56] Pre-Sentence Custody Not Applied to Attempted Murder Sentence

While Mr. Sheikh was subsequently convicted of the attempted murder charge, counsel advises that none of the pre-sentence custody since his arrest on June 15, 2024 has been applied in that sentencing.

[57] Calculation of Pre-Sentence Custody

Counsel calculated the pre-sentence custody to September 19, 2025, the date of the sentencing hearing, as 462 real days, so that it is now 462 + 32 = 494 real days of pre-sentence custody to October 21, 2025. At an enhanced credit of 1.5 days for every day of pre-sentence custody as Summers credit, his enhanced credit is now 741 days.

[58] Lockdown Records

Mr. Sheikh filed lockdown records for the Toronto South Detention Centre documenting that between June 16, 2024 and June 23, 2025, he experienced 166 full or partial lockdown days due to staff shortages at the Toronto South Detention Centre.

[59] Triple Bunking

Records from the Toronto South Detention Centre also documented that he was incarcerated with three inmates in a cell for 68 days of his detention.

[60] Affidavit Evidence — Harsh Conditions

Mr. Sheikh deposes in an affidavit filed at the sentencing hearing that the lockdowns he experienced were "extremely harsh" as he would be confined to his cell without contact with the outside world, which he found difficult, as his mother was experiencing health challenges, and he found it very difficult not to be in contact with his parents.

[61] Affidavit Evidence — Lockdown Conditions

He deposes that during the lockdowns, at times, there was no shower and the inmates had to choose between a shower and a phone call. When he was triple-bunked, it often meant that he would be sleeping near the toilet.

[62] Affidavit Evidence — Religious Practice

He deposes that he practices the Muslim faith and prays five times a day, and being confined with three persons in a cell made it difficult to pray on the prayer mat during lockdown times when he was confined to his cell. He deposed that during the lockdowns he felt anxious, miserable sad and punished.

[63] Acceptance of Evidence

Mr. Sheikh's evidence on the harshness of his pre-sentence incarceration was not challenged by the Crown, and I accept it.

[64] Conditions at Toronto South Detention Centre

Numerous decisions from the Ontario Superior Court of Justice have commented on the harsh and unacceptable conditions of incarceration at the Toronto South Detention Centre frequently described as unacceptable, shocking, deplorable, harsh and oppressive: See R. v. Persad, 2020 ONSC 188, per Schreck J. at para. 31.

[65] Harshness as Mitigating Circumstance

The harshness of pre-sentence incarceration is properly considered as a mitigating circumstance in determining the sentence in any case: R. v. Marshall, 2021 ONCA 344, per Doherty J.A. at paras. 50-53.

[66] Duncan Credit — Transparency and Consistency

I agree with and adopt Justice Molloy's observation on the appropriateness of assigning a numerical reduction to the sentence to reflect the mitigating effect of harsh pre-sentence custody where she states in R. v. Shaikh and Tanoli, 2024 ONSC 774, at paras. 22-23:

[22] With the greatest of respect for the guidance provided by the Court of Appeal for Ontario in Marshall, I consider it preferable, not merely acceptable, to quantify the period of time by which a sentence is reduced to reflect the harsh and punitive conditions of pre-trial custody provided for in Duncan. I take no issue with this being properly characterized as a mitigating factor, nor that it should not be used so liberally as to make a sentence unfit. However, in my opinion, the Duncan credit by its nature, lends itself to being expressed numerically, which is not the case for other kinds of mitigating factors, such as remorse, youth, and the like.

[23] Transparency and consistency are two important underlying principles of sentencing that are best served by specifying the amount of the Duncan credit. If a sentencing judge merely states that the punitive pre-trial custody conditions have been factored in, without specifying how, neither the accused, the public, the government, nor correctional officials will know the extent to which this has been done. In the result, there will be no public knowledge of the impact deplorable conditions in the prisons are having on the sentences served by offenders, providing little incentive to those in authority to fix the problem. While the amount of credit to be given is a matter of discretion to which deference would typically be afforded, sentencing judges being transparent about the amount of the sentence reduction given will also provide a better opportunity for appellate oversight and error correction.

[67] Agreement with Transparency Approach

I agree with Justice Molloy that transparency and consistency favour assigning a specific reduction to a sentence to reflect Duncan credit for harsh pre-sentence incarceration.

[68] Constraint on Duncan Credit

However, this credit must not be such as to make the sentence imposed unfit: R. v. Marshall, supra, at paras. 50-53.

[69] Sentencing Range Agreement

As previously noted, I agree with the Crown that the Crown's position that a sentence of 2 years less a day is at the very low end of the range for this offence.

[70] Duncan Credit Determination

In my opinion, a reduction of 60 days in the sentence that would otherwise be imposed is appropriate in this case to reflect the mitigating effect of Mr. Sheikh's harsh pre-sentence incarceration. While I accept that the conditions he experienced were harsh and deplorable, any further reduction beyond a reduction of 60 days for the mitigating effect of his harsh pre-sentence incarceration, below the sentence of 2 years less a day, would make the sentence disproportionate to the seriousness of the offence and the degree of responsibility of Mr. Sheikh in committing this offence.

[71] Total Sentence

In conclusion, the total sentence to be served is 2 years less a day (729 days) - 60 days Duncan credit, for a sentence of 669 days.

[72] Summers Credit Application

Mr. Sheikh is entitled to Summers credit for the pre-sentence custody calculated at 1.5 to 1 for the pre-sentence custody he has served. Of his total pre-sentence custody, he is entitled to apply an enhanced credit of 669 days, based on the application of 446 days of the 494 days of actual pre-sentence custody he has served.

[73] Sentence Satisfaction

On the basis that this enhanced pre-sentence custody is available to be applied to this sentence, the sentence of 669 days is satisfied by the application of 446 days of his actual days of pre-sentence custody to this sentence.

[74] Suspended Sentence

Accordingly, upon the application of enhanced pre-sentence custody credit of 669 days, the sentence is a suspended sentence.

Probation Order

[75] Probation Terms

There will be a probation order for 3 years on the following terms:

[76] Conditions of Probation

In addition to the statutory terms:

• Report to a probation officer within two business days of your release from custody, and thereafter as directed;

• Do not have any contact, directly or indirectly, by any means, physical, electronic, or otherwise with Fanuel Mehari or Ali Hazrati;

• Do not be within 100 m of Fanuel Mehari or Ali Hazrati, or anywhere you know them to live, work, worship, go to school, or otherwise know them to be.

• Attend for any assessment, counselling, and treatment as directed by your probation officer;

• Sign any releases necessary to allow your probation officer to monitor your compliance with the terms of your probation;

• Attend school for further education or make reasonable efforts to obtain employment and provide proof of this to your probation officer;

• Perform 200 hours of community service in the first 18 months of your probation period;

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

• Do not apply for any firearms certificate or licence.

• For the first 12 months of your probation period, do not have care or control of a motor vehicle.

Additional Orders

[77] DNA Order

There will be a DNA order pursuant to ss. 487.04 and 487.051(1) of the Criminal Code in relation to the primary designated offence of robbery.

[78] Weapons Prohibition

There will be a weapons prohibition under section 109 for 10 years.

[79] Victim Fine Surcharge

As Mr. Sheikh was gainfully employed when he committed the offence, there will be a victim fine surcharge ordered in the amount of $200.00 pursuant to s. 737(2)(b)(ii), with 2 years to pay.

Dated: October 21, 2025

_________________________ Justice David Porter