COURT FILE NO.: CR-13-40000214
DATE: 20140121
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RAHEEM MCLAUGHLIN
Defendant
Luke Schwalm, for the Crown
Pharah Bacchus, for the Defendant
HEARD: January 13, 2014
SPIES J. (orally)
Introduction
[1] On December 13, 2013, a jury found Mr. McLaughlin guilty of using a firearm to rob Raffie Hackshaw on or about July 24, 2012, contrary to section 344 of the Criminal Code. He was also found guilty of using an imitation firearm while committing the robbery contrary to section 85 of the Criminal Code. His co-accused, David Moore, was acquitted of the same charges and two additional charges.
The Facts
(a) Circumstances of the Offences
[2] Late on the night in question Mr. Hackshaw and his girlfriend Vanessa Guiyadeen (now his wife) were parked in a school parking lot. A young black male Mr. Hackshaw believed to be Mr. Moore, approached the car and asked if he had a cigarette. He said “no” and within a minute of that male leaving, that male and three others rushed the car and took up positions surrounding the car at each of the four doors. It was the man who originally asked him for a cigarette who was back at his driver’s door window. The four young men tried to open the car doors and were banging and kicking the car trying to get in. The person at the driver’s door pointed a firearm into the car and demanded that Mr. Hackshaw and Ms. Guiyadeen get out of the car and that they “give me what you’ve got”. Mr. Hackshaw was not intimidated by this and in fact wanted to exit the car with a knife as a weapon but Ms. Guiyadeen was naturally very frightened. She began to scream and convinced him to drive away. After Mr. Hackshaw dropped her off nearby, he returned, looking for the men who had robbed him. He spotted Mr. Moore and made a citizen’s arrest. Mr. McLaughlin was later arrested as his palm print was identified on the driver door window.
[3] It was the position of the Crown at trial, based on the evidence of Mr. Hackshaw, that it was Mr. Moore who pointed a firearm at Mr. Hackshaw. The jury was charged on that basis, with Mr. McLaughlin’s liability to the offence as an aider. The jury was also advised that they could find that Mr. Hackshaw was mistaken and that Mr. McLaughlin aided someone else, not Mr. Moore, in committing the robbery or that he was in fact the person holding the gun, given the location of his palm print.
[4] It is not clear from the jury’s verdict whether or not they believed that Mr. McLaughlin was the actual gunman or one of the three men who aided the gunman. Mr. Schwalm conceded that for the purpose of sentencing the Crown could not meet the burden of establishing beyond a reasonable doubt that Mr. McLaughlin was the gunman but it is his position that in the circumstances of the offence, this makes little difference.
(b) Impact on Mr. Hackshaw
[5] Mr. Hackshaw prepared a Victim Impact Statement. Having come to Canada from St. Vincent, he was working his first job which he states he lost because of the time necessary to attend trial. He was without work for a couple of months and as a result has a lot of debt. He has just been able to get a fulltime job but still has to deal with his expenses. He states he is also afraid of the area he is living in which has changed his life a bit. He also has concern for Ms. Guiyadeen. She did not file a Statement but as I have already stated was clearly very frightened at the time.
(c) Circumstances of Mr. McLaughlin
[6] Mr. McLaughlin was born on July 21, 1993. He is 20 years old now and was 19 at the time of the offence.
[7] Mr. McLaughlin has a substantial related criminal record notwithstanding his youth, as follows:
• September 2010 (Youth conviction, date of offence unknown). Mr. McLaughlin was convicted of uttering threats, theft under $5,000, two counts of assault, fail to comply with recognizance (x2) and obstructing a peace officer. He was sentenced globally to time served of three months and ten days in addition to two years’ probation on each charge, concurrent.
• May 2011 (Youth conviction, date of offence June 2010). Mr. McLaughlin pleaded guilty to robbery and use of an imitation firearm to commit an indictable offence and received nine months pre-trial custody, two years’ probation and a weapons prohibition order.
• April 2013 (Date of offence February 2012). Mr. McLaughlin pleaded guilty to assault and theft under and received six months pre-trial custody plus one day plus two years’ probation and a 10 year weapons prohibition order. It appears from the case tracking that as a result of these pleas two charges for failure to comply with probation were withdrawn.
• August 2013 (Date of offence November 2011). Mr. McLaughlin pleaded guilty to possession of cocaine and received four days jail and one day pre-sentence custody.
[8] A current Pre-Sentence Report (“PSR”) for Mr. McLaughlin was not requested or ordered. Ms. Bacchus provided a copy of a PSR dated June 3, 2011, prepared for Mr. McLaughlin in connection with the robbery and use of imitation firearm convictions from May 2011. At that time he was residing with his mother and stepfather at 39 Yorkgate Boulevard in Toronto which is where he was living at the time of these offences.
[9] According to the PSR, Mr. McLaughlin was in detention at the Roy McMurtry Youth Centre (“RMYC”). Upon his release he was to return to the family home to live with his mother, stepfather and four siblings ranging in age from four to twenty-one years old. His mother reported that Mr. McLaughlin grew up with his older maternal half-sister with whom he is very close. His mother and father separated prior to Mr. McLaughlin’s first birthday and since then Mr. McLaughlin’s father has been involved minimally in his life. His mother married his stepfather, Mr. Lee, in February 2004 and at that time Mr. McLaughlin gained four stepsiblings. He also has a four year old brother resulting from the union of his mother and stepfather.
[10] Mr. McLaughlin reported to the probation officer that his family had been very supportive and his mother, stepfather; Mr. Lee and older sister visited him regularly during his detainment. Mr. McLaughlin could not recall when he last saw his father but maintained that having an absent father did not affect him much because of his mother. Mr. McLaughlin’s mother advised the probation officer that one of his stepbrothers was not a good influence and that he was then in the care of the Children’s Aid Society and had had involvement with the Youth Justice System. His mother stressed that he had good supports in place throughout his childhood, one of which was a strong male presence, namely his godfather, who spent a lot of time with Mr. McLaughlin, particularly attending sporting events. Mr. Lee had had no contact with him while in detention because he did not approve of his anti-social behaviour. He hoped at that time that Mr. McLaughlin was only going through a phase.
[11] Both Mr. McLaughlin’s mother and Mr. Lee described him as a “follower”. He was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) when he was in high school. He was suspended from elementary and high school on several occasions and had most recently been expelled as a result of the May 2011 offences. However, he earned a total of 17 credits while in custody.
[12] Mr. McLaughlin had several part-time jobs including McDonald’s, UPS and had more recently been working at an insulation factory through a temporary agency. Between June 2010 and December 2010, while in custody at the Peninsula Youth Centre, Mr. McLaughlin completed anger awareness, problem solving, victim awareness, healthy sexuality, conflict resolution and stress management programs. After transferring to the RMYC, he received several behavioural reports for fighting, disobeying and insulting staff.
[13] The PSR noted that Mr. McLaughlin’s plans then were to complete his high school education and limit his peer acquaintances to those who could provide a positive influence. He then wanted to become a social service worker or a child and youth worker. He wanted to work part-time while attending school. He also recognized the need for anger management and problem solving counselling and that he was open to attending sessions on a long-term basis in order to learn “how to take out anger in more positive ways”.
[14] A number of letters of support were filed before me by Mr. McLaughlin’s family members. His eldest sister confirms that they have lived in the same household for twenty years. She states that the entire family was “taken aback” at the news of his conviction. She speaks of her brother in very positive terms and states as a family that they are always there for him and will give him the emotional support and “push he needs”. She states that in speaking with her brother he has come to the realization that it is time to smarten up and get himself on the right track. He has made it clear to her that he is going to complete school and find a part-time job, and make all reasonable efforts to better himself as a person and in society. She says that he deserves another chance.
[15] Mr. Lee has known Mr. McLaughlin for over ten years. He states that Mr. McLaughlin is good with his hands and tools and has spoken about becoming a mechanic. They have talked about him finishing high school; he states that Mr. McLaughlin only needs six credits to complete his diploma, and he would then go on to learn a trade. He also states that Mr. McLaughlin has strong family support and that he will make all efforts to be there for him in every way.
[16] Mr. McLaughlin’s aunt states that her family has visited Mr. McLaughlin often while he has been in custody. She states he is a good person who deserves a chance to become someone in life.
[17] Mr. McLaughlin’s mother states that Mr. McLaughlin’s diagnosis of ADHD was late in his teenage life and that he was one of those unfortunate students that slipped through the cracks in the school system. In her view this has resulted in low self esteem. She also states that Mr. McLaughlin did not have a positive male role model in his teenage life. This seems to be at odds, however, with the information she provided to the probation officer about his god father and the fact that Mr. Lee has been with the family for some time. Mr. McLaughlin’s mother also states that the entire family is dedicated to supporting her son and giving him the means necessary to help him in all areas of his life. They are looking into schooling in the Durham region and also a change of environment for him.
[18] Information about adult day school in Oshawa was provided. Ms. Bacchus advised me that Mr. McLaughlin and his mother are moving to Oshawa (I presume with the rest of the family) after he finishes his sentence. This is to get him out of the area where they were living and where he committed these offences. Mr. McLaughlin then plans to complete high school in the Durham region.
[19] Mr. McLaughlin exercised his opportunity to make a statement to the court. He said that although he had made his own choices, the crowd he was hanging around with influenced him. He acknowledged that his family had always steered him in the right direction. He apologized to his family and the court but made no mention of the complainants. He stated that in custody his eyes have opened up and he realizes he needs help with his anger issues. He described himself as a hands-on learner and stated that he wants to learn a trade such as becoming a mechanic or an electrician.
Legal Parameters
[20] The maximum sentence for the robbery conviction is life pursuant to section 344(1)(b)of the Criminal Code. Section 85(2)(a) of the Criminal Code provides that using an imitation firearm while committing an indictable offence carries a mandatory minimum penalty of one year imprisonment. The maximum sentence is 14 years. Section 85(4) provides that the sentence imposed for this offence, since it arises out of the same event, shall be served consecutively to the sentence imposed on the robbery conviction. The Crown did not allege that this was a second conviction which would have increased the minimum sentence to three years pursuant to section 85(3)(b).
Position of the Parties
[21] The Crown seeks a sentence of three years less pre-sentence custody. Mr. McLaughlin has been in custody since July 30, 2012. To the date of the sentencing hearing that represents one year, five months and fourteen days. However, Mr. Schwalm took the position that six months and five days of that time was attributed to his conviction for possession of cocaine and two counts of assault and theft. That leaves eleven months and nine days of pre-sentence custody to the date of the sentencing hearing. The math was agreed upon by Ms. Bacchus.
[22] Ms. Bacchus took the position that a further six months would be a reasonable sentence bringing the global sentence to 22-23 months. She requested credit on a 1.5:1 basis for the time served and submitted that regardless of the pre-sentence credit the sentence imposed should be less than 24 months in order to keep Mr. McLaughlin in the provincial system.
[23] Mr. Schwalm also seeks a section 109 weapons prohibition order for life on the basis that use of an imitation firearm is a designated offence and a DNA order on the basis that robbery is a primary designated offence. Ms. Bacchus had no issue with the ancillary orders requested by the Crown.
Principles of Sentencing
[24] The fundamental purpose of sentencing, as set out in section 718 of the Criminal Code, is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which the sentence I impose should attempt to achieve. These are denunciation, deterrence; both specific and general, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. In addition, in imposing sentence I must take into account the principle of proportionality and the applicable aggravating and mitigating circumstances relating to the offences as set out in section 718.2.
[25] In addition, in considering the imposition of a penitentiary sentence for a youthful offender, the length of such a sentence “should rarely be determined solely by the objectives of denunciation and general deterrence”[^1] and “where young offenders receive their first penitentiary sentence, that sentence should be as short as possible given the gravity of the offence”.[^2]
Case Law
[26] Counsel agreed that the decision of Justice Hill in R. v. K.G.[^3] is closest to the facts of this case. In that case K.G. was being sentenced for convictions of robbery, using an imitation firearm to commit the robbery and committing robbery while masked. He and two other offenders had followed a young woman who was driving home. When she arrived home shortly after midnight and as she exited her vehicle, K.G. and another offender came up the driveway behind her, each with a replica firearm. The other offender pointed his firearm at the victim and demanded her purse and car keys. At this point K.G. was at the passenger side of the woman’s vehicle. The victim ran into her home and phoned police. K.G. was arrested soon after and found with an imitation firearm in his waistband. The impact of the armed robbery on the victim was profound. Her lifestyle has changed dramatically and she had to undergo therapy as a result.
[27] At the time of the offences K.G. was 18 years old and he had a prior criminal record commencing in Youth Court when he was 17; for assault, break and enter with intent and as an adult; assault, failure to attend court, possession of a weapon, failure to comply with recognizance, breach of recognizance (x2) and assault with a weapon. At the time of the offences K.G. was on probation for assault and subject to a weapons prohibition order. Although he was only two credits shy of his Grade 12 requirements, Hill J. found that the offender was not motivated to seek legitimate employment or to complete his high school education. The PSR concluded that that offender had a pro-criminal attitude and behaviour, denied responsibility for the current offences and spoke openly about his negative view of the criminal justice system.
[28] The Crown was seeking a five to six year prison term whereas the Defence was seeking a global sentence of two to three years. In terms of aggravating features Hill J. noted that the offender participated with two others in the planning of what was effectively a carjacking and that he was a party to an armed robbery in which he consented to the use of an imitation firearm by his accomplice resulting in terrorizing the victim who had no way of knowing that the very real looking firearm was a replica. Hill J. also considered that the “negative PSR assesses the offender as at risk to reoffend”, the fact that the offender had demonstrated no remorse or apparent insight into the criminality for which he had been convicted and he had continued to offend while on bail.
[29] The mitigation factors Justice Hill considered were that the offender was only 18 years of age when the crimes were committed, he had only served seven days of custody and the victim was not required to testify at trial.
[30] At paragraph 25 Hill J. observed:
[a]rmed robbery by a gang is a bold and cowardly crime. Law-abiding citizens should not expect to be subjected to violence anywhere… In the circumstances of the crimes here, general deterrence and denunciation operate as the paramount sentencing principles. Given the contents of the PSR including that the offender was sentenced for assault only eight months prior to the robbery, individual deterrence in furtherance of protection of the community remains a critical concern.
[31] Justice Hill concluded at paragraph 43 that the global sentence should be three and a half years’ incarceration; 21 months for the robbery and 15 months for the use of the imitation firearm in addition to two years’ probation. That however seems to be an error since this adds up to 36 months, not 42 months. A six month sentence for the robbery while masked was imposed to run concurrently. The prospect for rehabilitation of Mr. McLaughlin is not as bleak as it was for K.G. but his criminal record is more serious. Fortunately these offences have not had such a profound impact on the victims and the offences committed by Mr. McLaughlin were also marginally less serious in that the victims remained in their car. Otherwise the case is comparable and supports Mr. Schwalm’s position that a three year sentence, or at least one in that range, is appropriate.
[32] Mr. Schwalm also relies on R. v. Panchan[^4], a recent decision of Justice Code. The facts are quite different but some of Code J.’s observations are of assistance. In that case, following a jury verdict, Justice Code found that Ms. Panchan was guilty of robbery as a party while Mr. Lopes was guilty of robbery as a principal and guilty as a party to aggravated assault.
[33] In considering the aggravating and mitigating factors, Justice Code found that although it was a premeditated and violent robbery, both accused had no criminal record, were relatively young, the offence was an isolated incident and they both had support in the community. Although Code J. did not have to consider the mitigation seen in many of the cases where guilty pleas are entered, he found (at para. 31) that the aggravating features seen in many robberies were not present (such as a home invasion or the use of a real or imitation firearm or the life-threatening use of a knife or the victimization of vulnerable workers in commercial premises where money is kept).
[34] Justice Code observed (at para. 32) that the principles of sentencing pulled in opposite directions. On the one hand, both accused were young first offenders with good rehabilitative prospects who posed little or no risk of re-offending. As such, rehabilitation and specific deterrence would generally be the primary sentencing values. On the other hand, robbery and aggravated assault of that nature are serious offences where denunciation and general deterrence are generally the primary sentencing values and requiring more significant custody, even for first offenders. He outlined the range of sentences for an offence of this nature (at para. 33) as follows:
The offence of robbery is serious but a short sharp sentence of two to three months in jail, followed by probation, can be appropriate in the case of a young first offender with good rehabilitative prospects, where no real violence is involved. However, "different considerations apply in serious crimes of violence, particularly where careful planning is evident". In these latter kinds of robberies, sentences of fifteen months to two years less a day are appropriate even in the case of well-situated first offenders.
[35] In reaching his conclusion Justice Code relied on R. v. Demeter and Whitmore[^5] where the Court of Appeal held that ordinarily for very young first offenders, the objectives of individual deterrence and rehabilitation are paramount. It was in this context that Dubin J.A. for the majority held that: “[s]peedy apprehension, arrest, public trial and a criminal record with its consequences, should be the best deterrent for those young persons who may be tempted to commit an offence such as this [robbery of a pizzeria by two youths aged 17 and 16 wearing ski masks and pointing an unloaded pellet gun at the owner]”at para. 10. To the same effect, the Court of Appeal for Ontario in R. v. Gondis[^6] and R. v. Priest[^7] emphasized that the primary objectives in sentencing a first offender are individual deterrence and rehabilitation and that, in general, young offenders should not be given long sentences of incarceration but where appropriate a short, sharp sentence and a fairly lengthy period of probation should be imposed.
[36] Mr. McLaughlin is not of course a “well-situated” first offender and applying the range of sentence outlined by Justice Code, an appropriate sentence would be a penitentiary sentence.
[37] In R. v. Gregorchuk[^8] the offender and another man robbed a pizza delivery man while armed with a knife. The offender was 27, high on cocaine at the time of the offence and he had a criminal record. The court was of the view that this was a serious offence of robbery involving violence and some degree of planning. Justice Shaw noted that the longest sentence previously imposed on the offender had been 30 days’ imprisonment and that his record although including one conviction for violence, an assault, was not extensive.
[38] At para. 21 Shaw J. concluded that a sentence which reflected the seriousness of the offence and at the same time maximized the rehabilitative potential of the offender provided the best hope of protection of the public. He held that the three year sentence put forward by the Crown was a sentence that he would have imposed had he not taken into consideration the sincere appreciation by the offender of the consequences of his actions reflected in his guilty plea and the remorse that he expressed in his letter written shortly after his arrest and his realization of the effect that the event had had and would have on his relationship with his daughter. As a result Shaw J. imposed a sentence of two years and four months less credit for the five months spent in custody on a two for one basis in addition to a period of probation for 36 months.
[39] The use of a knife is as serious as the use of an imitation firearm that appears to be real. Justice Shaw’s view that a three year sentence would have been appropriate but for the mitigation factors also supports the Crown’s position.
[40] In R. v. Bannerman[^9] the offender pleaded guilty to charges of robbery and using an imitation handgun while committing an indictable offence. He had held the imitation firearm to the head of a taxi driver when he was asked to pay the fare. He was 21 and had a youth record which included an assault conviction. He was sentenced to 30 months; four months in addition to 26 months credited for pre-sentence custody (on a two for one basis) and two years’ probation. The court found that his post-conviction conduct and age mitigated the sentence as there were reasonable prospects for his rehabilitation. Compared to the case at bar, the conduct of Mr. McLaughlin may not have been as serious as he may not have been the person holding the imitation firearm. However, his criminal record is more serious and his sentence is not mitigated by a guilty plea. Again I find that this decision provides some support for the Crown’s position.
[41] I have considered the other cases relied upon by counsel. The decisions of R. v. Noor[^10] and R. v. Swanek[^11]are not particularly helpful because, apart from the circumstances of the offences, there is no information about the offender save their age. The facts relating to the offences and the offender in R. v. Rose[^12] are quite different from the case at bar.
Determination of a Fit Sentence
[42] In the circumstances of this case Mr. Schwalm argued that there is very little to distinguish the actions of each member of the group of four young men. I accept that submission. There must have been some planning given the four young men returned to the vehicle very quickly after what could be considered a very brief exploratory visit by one of them and they were all banging on the windows and kicking the doors of the car in order to attempt to get into the car and obtain the property of Mr. Hackshaw and Ms. Guiyadeen. Even if Mr. McLaughlin was not the one holding the imitation firearm, the jury must have found at least knowledge of the firearm in order to find him guilty. He chose to remain and participate in the offence. He would have also been able to observe how terrorized Ms. Guiyadeen was as Mr. Hackshaw testified that she slid down in her seat and was screaming at him to go.
[43] The Crown’s position is that denunciation and deterrence should be paramount considerations. In addition Mr. Schwalm argued, given Mr. McLaughlin’s prior criminal record, that specific deterrence is a significant factor. He submitted that save for the cocaine conviction his criminal record is related to the offences he must now be sentenced on, including convictions for the very same offences.
[44] Ms. Bacchus submitted that Mr. McLaughlin has excellent rehabilitation potential. I asked her what was different now from what had been present the last time Mr. McLaughlin was sentenced in that his family has always appeared to have been there for him providing support. She responded that the difference is now his further education and programming while in custody and his realization that this is not a path he wants to continue on. There is some evidence that the time served pending trial has changed Mr. McLaughlin’s outlook and inspired a desire to put his life in order. I hope for his sake and the sake of his family that that is so.
[45] Ms. Bacchus relied on the “jump” principle and pointed out that the longest time Mr. McLaughlin has been in custody is the time spent on these offences. In reply Mr. Schwalm argued out that in the K.G. case, Justice Hill considered the “jump” principle and yet sentenced the offender to three and a half years even though his prior longest sentence was ten days. He submitted that a jump from nine months to three years in this case was less significant. Even though the sentence in K.G. in fact appears to have been three years, the jump was more than what is proposed in this case. Furthermore, in K.G. at paragraph 33, where Justice Hill reviewed the “jump” principle as set out in Borde at para. 39, he noted that the court must still “take account of the seriousness of the offence upon which an offender is currently being sentenced considered on its own and in relation to the type of offences for which the offender has previously been sentenced.” That observation is particularly applicable in this case.
[46] Many of the aggravating factors in this case are as a result of the serious nature of the offence. They are as follows:
a) Robbery with an imitation firearm is a very serious offence. As demonstrated in this case there is a real potential for serious injury. Mr. Hackshaw had a knife in his car; one of his tools and he wanted to exit the car to defend himself and when he was convinced to leave he returned to the scene of the crime with the knife. Although he testified that he did not realize that he had the knife with him and he ultimately did not use it, the potential for injury had a fight ensued is obvious.
b) The man with the firearm at the driver’s window attempted to disguise himself with a bandana.
c) As I have already stated, even though Mr. McLaughlin must be sentenced on the basis that he was not the one holding the imitation firearm, he was a party to that offence and consented to the use of the imitation firearm in that he knew it was being used and he continued to participate in the robbery.
d) The victims had no way of knowing that the firearm was an imitation. Mr. Hackshaw believed the firearm to be real and based on her conduct Ms. Guiyadeen must have as well. She was clearly terrified by this event at the time.
e) The offences have had an adverse impact on both of the victims.
f) The robbery occurred late at night when it was dark. Mr. Hackshaw and Ms. Guiyadeen were not parked on private property as in K.G., but being parked in a school parking lot and being in Mr. Hackshaw’s car, they were entitled to feel secure and safe in their community.
[47] As for mitigating circumstances, Mr. McLaughlin cannot be penalized for insisting on his right to a trial, but he does not get the benefit of a reduced sentence because of a guilty plea. Furthermore, he expressed no remorse or thought of the victims when he made his statement to the court. In addition, there is no evidence that Mr. McLaughlin has accepted responsibility for his actions; although I appreciate he may want to preserve a right of appeal. These are all neutral factors.
[48] Given Mr. McLaughlin’s youth, consideration of the possibility of rehabilitation is particularly important. The sentence that keeps Mr. McLaughlin from re-offending is in the best interest of the community and of course Mr. McLaughlin and his family. He is very fortunate to have such strong family support. What troubles me however, is that despite that support which was clearly present at the time Mr. McLaughlin was sentenced in May 2011, he committed the very same offences a year later, not to mention the fact he breached the terms of the probation and weapons prohibition order resulting from his May 2011 conviction. In addition, while subject to that probation order, he was found in possession of cocaine in November 2011 and committed an assault and theft under in February 2012.
[49] Based on a consideration of the cases referred to by counsel, I find that a global sentence in the range of three years, as submitted by the Crown is reasonable. In considering all of the circumstances of the offences and Mr. McLaughlin, I have concluded that Mr. McLaughlin should serve a three year sentence in addition to two years’ probation. Twenty months is to be allocated to the robbery conviction and 16 months to the use of an imitation firearm. This sentence accords with the cases that I have reviewed and in my view appropriately balances the need for general denunciation and deterrence and the very important goals in this case of specific deterrence and rehabilitation.
[50] Ms. Bacchus requested credit for pre-trial custody on a 1.5:1 basis which she submitted would increase the pre-sentence credit to 16½ months and 13½ days to the date of the sentencing hearing. She relied on the Court of Appeal’s decisions in R. v. Summers,[^13] although she did not call any evidence to support the claim. She submitted that the conditions in the jails have not changed. She advised that Mr. McLaughlin was incarcerated in Maplehurst from July 30, 2012 to April 22, 2013. From April 22, 2013 to May 28, 2013 he was at the Toronto Don Jail. He was then sent back to Maplehurst where he still is. Mr. Schwalm advised that in the absence of a record in evidence he could not agree to the request for enhanced credit. However, he did not oppose the request either and left the decision to me.
[51] Ms. Bacchus advised that while at Maplehurst Mr. McLaughlin experienced frequent lockdowns and showers and yard exercises were not as frequent as they should be. He was in anger management but the program ceased to continue. He never slept on the floor and was never triple bunked at Maplehurst. At the Don Jail he was triple bunked and slept on the floor most of the time. There was extremely little programming available and there were lockdowns there.
[52] Mr. McLaughlin has committed three misconducts, two in Maplehurst and one in the Don Jail. Ms. Bacchus advised that one of the misconducts at Maplehurst resulted from his arguing with the correctional officer who walked into his cell. She was not sure about the other at Maplehurst but advised that the misconduct in the Don Jail was as a result of an altercation.
[53] Although I have no evidence on behalf of Mr. McLaughlin of the type that I have received in other cases, I accept Ms. Bacchus’ submissions as to the problems he has experienced as they are well known. I would have preferred however to have more information about the misconducts. As I understand it there is no order pursuant to section 515(9.1) of the Criminal Code that states that Mr. McLaughlin has been detained in custody primarily because of a previous conviction, which pursuant to section 719(3.1), would preclude any consideration of enhanced credit. However, I am required to take into account all of the circumstances including the misconducts. In all of the circumstances I am prepared to give Mr. McLaughlin enhanced credit but it will be somewhat less that the credit requested. I find that an appropriate credit, in fact a generous one, is 15 months; roughly 1.3:1.
Disposition
[54] Mr. McLaughlin would you please stand.
[55] With respect to your conviction for using a firearm to rob Raffie Hackshaw contrary to section 344 of the Criminal Code, I sentence you to 20 months.
[56] With respect to your conviction for using an imitation firearm while committing the robbery contrary to section 85 of the Criminal Code, I sentence you to 16 months. This sentence shall be served consecutively to your other sentence.
[57] With respect to your sentences you will be credited 15 months for pre-sentence custody on an enhanced basis. After this credit you have a sentence of 21 months to serve.
[58] Once you are released from custody you will be subject to a period of probation for two years. In addition to the compulsory conditions of this probation order, provided for by section 732.1(2) of the Criminal Code, the additional conditions of the order pursuant to section 732.1(3) of the Code are as follows:
a) Report within 2 working days of your release, in person, to a probation officer and thereafter when required by the probation officer;
b) Remain within the province of Ontario unless written permission to go outside the Province is obtained from the court or the probation officer;
c) Reside with your mother or at an address approved of by the probation officer and contribute to the cost of maintaining the household as you are able;
d) Do not change your address without the prior approval of the probation officer. Although I cannot make it a term of your probation, I do hope your mother moves to Oshawa as planned as getting you away from your old peer group would in my view be a big help to you;
e) Abstain from the purchase, possession or consumption of any drugs, or other substances prohibited by law, except in accordance with a medical prescription;
f) Attend and actively participate in counselling programs or treatment program(s) for anger management, substance abuse or other issues as recommended by your probation officer and sign releases to monitor compliance as needed. I ask that your probation officer consider, if still available, the counselling programs referred to at page 6 of the PSR;
g) Make reasonable efforts to complete your high school diploma and further your education or vocational training and/or find and maintain suitable employment either as an employee or business owner and provide progress reports to your probation officer as directed;
h) Perform 100 hours of community service work. The work is to commence within 30 days of the date of commencement of your release from custody and shall be completed at a rate of not less than 8 hours per month in consecutive months and shall be completed to the satisfaction of your probation officer within eighteen months of this Order. You shall provide your probation officer with proof of attendance and completion of community service assignments;
i) Abstain from owning, possessing or carrying any weapon as defined in the Criminal Code;
j) Do not apply for nor possess a firearms acquisition certificate or any other form of gun licence;
k) Do not have any contact directly or indirectly with Raffie Hackshaw, Vanessa Guiyadeen or David Moore or be within 100 meters of where they are known by you to be;
l) You are not to have any contact with, or be in the company of, or associate with anyone known by you to have a criminal record or who is the subject of criminal charges except for members of your family or persons you come into contact with because of your employment, school or community service.
[59] Mr. McLaughlin, a copy of the probation order will be given to you by the court officials who will ensure that the substance of sections 732.2(3), 732.2(5) and 733.1 are explained to you regarding the probation order. Please pay very careful attention to all of these conditions. I must tell you that breach of any of these conditions will be taken very seriously by this Court. You must appreciate that incarceration will likely result if any of the conditions of your probation are breached. I hope that the terms that I have imposed will bring home to you the seriousness of your conduct, and assist you in becoming a productive and law-abiding member of our community once you are released from custody.
[60] There will be a weapons prohibition order pursuant to subsections 109(1)(a) and (b) and 109(3) of the Criminal Code for life.
[61] In addition, there will be a DNA order pursuant to section 487.051(3) authorizing the taking of a DNA sample. The order shall apply to Count # 1 which is a primary designated offence.
SPIES J.
Released: January 21, 2014
COURT FILE NO.: CR-13-40000214
DATE: 20140121
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RAHEEM MCLAUGHLIN
Defendant
REASONS FOR SENTENCE
SPIES J.
Released: January 21, 2014
[^1]: R. v. Borde (2003), 2003 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), at para. 36.
[^2]: R. v. Cotterell, [2004] O.J. No. 3801 (C.A.), at para. 2.
[^3]: 2012 ONSC 3523, [2012] O.J. No. 2785.
[^4]: 2013 ONSC 5567, [2013] O.J. No. 4022 (S.C.J.).
[^5]: (1976), 1976 1413 (ON CA), 32 C.C.C. (2d) 379 (Ont. C.A.).
[^6]: 1980 2879 (ON CA), [1980] O.J. No. 1510 at para. 21.
[^7]: 1996 1381 (ON CA), [1996] O.J. No. 3369 at paras. 17-18.
[^8]: [2007] O.J. No. 4197 (S.C.J.).
[^9]: [2003] O.J. No. 5912 (S.C.J.).
[^10]: 2009 ONCA 795.
[^11]: [2006] O.J. No. 4783 (C.A.).
[^12]: [2011] O.J. No. 1183 (S.C.J.).
[^13]: 2013 ONCA 147, [2013] O.J. No. 1068 (C.A.). See also R. v. Morris, 2013 ONCA 223, [2013] O.J. No. 1583 (C.A.).