R. v. Ramsay, 2015 ONSC 3401

CITATION: R. v. RAMSAY, 2015 ONSC 3401

COURT FILE NO.: 11455

DATE: 2015/06/19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

L. Tuttle, for the Crown

• and -

DARUE RAMSAY

B. Basiga, for the offender

HEARD: April 10, 2015

REASONS FOR SENTENCE

LEACH J. (ORALLY)

Introduction

[1] On December 18, 2014, following an eight day trial by jury, Darue Ramsay was found guilty of having committed the following five offences:

i. Robbery of M.O. on October 30, 2011, contrary to s.344(1) of the Criminal Code of Canada, (“the Code”);

ii. Uttering death threats on October 30, 2011, in relation to Roger Braithwaite, contrary to s.264.1(2) of the Code;

iii. Uttering death threats on October 30, 2011, in relation to M.O., contrary to s.264.1(2) of the Code;

iv. Extortion committed in relation to M.O., between June 1, 2009, and October 30, 2011, contrary to s.346(1.1)(b) of the Code; and

v. Using an imitation firearm while committing the aforesaid indictable offence of extortion, contrary to s.85(2)(a) of the Code.

[2] Following the convictions on that date, on application by the Crown pursuant to s.523 of the Code, Mr Ramsay’s prior form of release was revoked and I ordered that he be detained in custody pending the imposition of sentence. After directing the preparation of a pre-sentence report, pursuant to s.721 of the Code, the matter then initially was adjourned to Assignment Court on January 13, 2015, for setting of a date for sentencing submissions.

[3] On January 13, 2015, the matter was adjourned to a sentencing hearing on April 10, 2015. In addition to receiving counsel submissions on that date, I was provided with a copy of Mr Ramsay’s criminal record, and a written victim impact statement from M.O..

[4] As noted above, Roger Braithwaite also was a victim of Mr Ramsay’s misconduct, in relation to one of the “death threat” convictions. However, Mr Braithwaite effectively “vanished” before trial, insofar as he disappeared after the preliminary hearing, leaving no means by which he could be located or contacted.

[5] That was confirmed by considerable testimony at trial, both from:

• M.O., who confirmed that she and Mr Braithwaite had no contact whatsoever after termination of their relationship; and

• Constable Derek Spence, who described the considerable but unproductive efforts made to locate, contact and serve a subpoena on Mr Braithwaite over an extended period in the run up to trial, (for example, through calls made to a previously operational telephone number for Mr Braithwaite that was found to be no longer in service, through unsuccessful efforts to locate Mr Braithwaite by searching several federal and provincial databases, and by leaving messages with a relative of Mr Braithwaite asking that he contact the police).

[6] The author of the pre-sentence report also was unable to locate Mr Braithwaite, following trial, and Mr Ramsay’s related convictions.

[7] Not surprisingly, the Crown therefore was unable to unable to advise Mr Braithwaite of his opportunity to provide a victim impact statement as well, and no such statement from Mr Braithwaite was forthcoming.

[8] Pursuant to s.726 of the Code, Mr Ramsay was asked if he wanted to make any direct comments prior to the imposition of sentence, and I did hear from him as well. In that regard, his verbal comments supplemented written ones set forth in a letter, addressed to me, that was included in the court filings tendered by Mr Ramsay’s counsel.

[9] The matter then was adjourned to today for the imposition of sentence, and delivery of my associated reasons.

[10] In the meantime, Mr Ramsay has remained in custody.

[11] When the matter was before me on April 10, 2015, counsel were agreed that Mr Ramsay had spent a total of 130 days in actual pre-sentence custody, (including time spent in custody between his arrest and interim release before trial, as well as time spent in custody following his conviction).

[12] If I have done the counting and math correctly, Mr Ramsay now has spent a total of 200 days in actual pre-sentence custody, up to and including today.

Circumstances of the offences

[13] I begin with consideration of the circumstances of the offences in respect of which Mr Ramsay has been convicted. In that regard:

• The convictions reflect a sad, sorry and deplorable history - - outlined by M.O. and clearly accepted by the jury, and which I independently accept pursuant to s.724(2) of the Code -- of Mr Ramsay having repeatedly tormented M.O. in very serious ways over an extended period of time.

• Before the incidents described in that history, M.O. and Mr Ramsay were not friends. They did not associate or converse with each other. M.O. had the misfortune to cross onto Mr Ramsay’s figurative radar simply because she and her children lived, (within the city of Hamilton), in a townhouse located across the street from a house where Mr Ramsay spent considerable time visiting or residing, because M.O.’s sisters apparently were acquainted with Mr Ramsay, and because one of M.O.’s sisters then purchased a used vehicle from Mr Ramsay in or around the summer of 2009.

• M.O. was not a party to that car transaction, and had no interaction with Mr Ramsay prior to that transaction. However, when M.O.’s sister then allegedly failed to pay Mr Ramsay all of the purchase money to which he felt entitled, the car transaction became the pretext upon which Mr Ramsay then began to harass, threaten and extort money from M.O.. In that regard:

o Approximately 2 months after the car transaction, M.O. began receiving extortionate telephone calls from Mr Ramsay. During the first such call, Mr Ramsay said “Where’s your fucking sister?”, and despite M.O.’s protests that she had nothing to do with the matter, he said “I want my fucking money”, and “you’re going to give me some money”. He also said: “She’s your sister, she owes me my fucking money, I want my money, and I know where you live. Don’t play with me.” On that occasion, M.O. did not agree to pay any money.

o However, within weeks, Mr Ramsay then called again in a threatening manner, saying “I want my money. You know where your fucking sister is.” When M.O. once again insisted that the matter had nothing to do with her, and that it was her sister who owed the money, Mr Ramsay once again said: “She’s your sister, and you’re going to give me the money she owes me”. On that occasion, M.O. agreed to pay Mr Ramsay $200 if he would just leave her alone and keep her “out of it”, as she “couldn’t take it any more”. However, arrangements were made so that she would not have to provide the money to him directly. In particular, M.O. gave the money to another sister, who in turn then gave it to a cab driver while M.O. watched, and the cab driver then took the money to Mr Ramsay.

o Sadly, however, Mr Ramsay was not through with M.O..

o A few months after the car purchase, (around Christmas of 2009), M.O. was walking through a Hamilton Walmart store with a female friend when the two women were confronted by Mr Ramsay, who asked M.O.’s friend: “Why are you hanging around with that bitch? She owes me money.” When M.O. emphasized once again that she did not owe Mr Ramsay any money, and that he should instead take the matter up with her sister, Mr Ramsay, in addition to continually calling M.O. a “bitch”, responded with other loud comments, including “I want my money”, “You owe me for the rest of your life”, “You have to give me my money”, “I’m going to tax you”, and “You shouldn’t play with me.” M.O. did not give Mr Ramsay money in response to that verbal onslaught. However, he took her purse, (then sitting in her shopping cart), opened it, and removed approximately $300 while continuing to call her names, before then walking away. M.O. did not try to physically restrain or stop him because she understandably was stressed and scared of Mr Ramsay. That was underscored by her then being walked to her car by the store’s security guard, who had noticed the in-store confrontation.

o Unfortunately, extorting that further sum from M.O. in the Walmart store also did not satisfy Mr Ramsay.

o Further extortionate conduct began with another threatening telephone call from Mr Ramsay to the townhouse home in which M.O. lived with her children. In response to Mr Ramsay once again demanding money, M.O. again emphasized that the matter had nothing to do with her, that she did not owe him any money, and that he should get any money owed from her sister, who had purchased the car. Mr Ramsay replied by saying: “Bitch, do you know who I am? Don’t play with me”. This frightened M.O., but she continued to protest that she didn’t buy the car, or owe Mr Ramsay any money. The conversation, such as it was, continued with Mr Ramsay saying “I know where your kids go to school”, “Remember I know where you live”, “I’ll come to your house and shoot up your house”, and “I’m on my way right now”.

o Understandably frightened and alarmed by these further telephone threats made by Mr Ramsay, M.O. and another visiting sister immediately tried to get themselves and their respective children out of M.O.’s townhouse and to another relative’s home, but exited the townhouse only to find Mr Ramsay already in the driveway. With M.O.’s children present and watching, Mr Ramsay then came to within a short distance of where M.O. was standing by the driver’s door of her vehicle, pulled up his shirt, and pointed to his waist area and a “black thing” that looked like the handle of what M.O. believed to be a gun. As he did so, Mr Ramsey said: “I told you don’t play with me. I want my money.” At that point, with her children present, and the oldest child visibly frightened while trying to look after M.O.’s baby, M.O. wanted to give Mr Ramsay the rest of the money he wanted because she thought he was “serious”, and didn’t know what he would do. Mr Ramsey then pulled what looked like a black gun out of his waistband or pocket, brought the object up to M.O.’s face, touched its barrel to an area of her face to the right side of her mouth, and said: “Don’t play with me. I want my money.” Mr Ramsay then put the object back into his waistband area before leaving.

o In the wake of that traumatic incident, M.O. understandably no longer felt that she and her children were safe at their existing townhouse. As soon as possible, she therefore took steps to relocate herself and her children quietly to another home in Hamilton, where Mr Ramsay hopefully would not find and bother them further.

o The need for such drastic measures was underscored by the fact that, shortly after the clandestine departure and relocation of M.O. and her children, Mr Ramsay admittedly took it upon himself to enter M.O.’s former home, only to find the townhouse deserted with no indication as to when or where M.O. and her children had gone. (Mr Ramsay claimed that his relationship with M.O. was such that he was entitled to treat her home as having an “open door” policy, as far as he was concerned, whereby he could just walk into her home without an express invitation.) He also acknowledged having made repeated further but unsuccessful attempts to reach M.O. by telephone, after her departure from the townhouse.

o Following the upheaval and relocation necessitated by Mr Ramsay’s misconduct, M.O. thought she had achieved a measure of peace and security, free from his further threats and demands. To her knowledge, Mr Ramsay no longer knew where she and her children lived. Nor did he know her proper first name, (as he knew and addressed her only as “M.O.”), or her surname, to assist him in locating her.

o Unfortunately, that sense of peace and escape from torment by Mr Ramsay was shattered unexpectedly on October 30, 2011.

o On that date, M.O. and her then boyfriend Roger Braithwaite had travelled from Hamilton to London, in Mr Braithwaite’s car, to do some shopping. Before returning to Hamilton, Mr Braithwaite asked to pay a visit to the home of his brother, who lived in London. Unfortunately, once inside that home, M.O. unexpectedly encountered Mr Ramsay, who turned out to be the visiting son of Mr Braithwaite’s brother. (Mr Ramsay and his brother had moved to London to stay with their father and his family for a time, to lend support to the father and his family, and to receive their support because of challenges Mr Ramsay and his brother had faced elsewhere.)

o Until M.O. unexpectedly encountered Mr Ramsay in that London home on October 30, 2011, neither M.O. nor Mr Braithwaite seems to have realized that there was any connection between Mr Braithwaite’s brother and Mr Ramsay. In large part, this was because M.O. previously had known and described Mr Ramsay to others only by his apparent gang-related nick-names “Rebel” and “Chubb Rock”; i.e., without knowing his actual names.

o After being confronted with the presence of Mr Ramsay in the London home, M.O. understandably sought to remove herself from the situation as quickly as possible by speaking privately to Mr Braithwaite and making it clear that she wanted to leave immediately. The couple then made their way quickly outside to the London home’s driveway and Mr Braithwaite’s car.

o Unfortunately, Mr Ramsay followed the couple, entering and trying to remain in Mr Braithwaite’s car, (although he was told he was not welcome), and once again insisting that M.O. owed him money that had to be paid. This was done in increasingly loud, angry and pejorative terms; e.g., by Mr Ramsay yelling “That bitch owes me money”, and accusing M.O. of being a liar when she once again denied any such obligation. The confrontation escalated as more individuals from the London home, (including Mr Braithwaite’s brother, Mr Ramsay’s brother, and the wife of Mr Braithwaite’s brother), exited the home and/or approached Mr Braithwaite’s car while the couple were trying to leave.

o Once again fearing for her safety, and wanting to do whatever was necessary to escape the situation, M.O. was inclined to turn more money over to Mr Ramsay, and repeatedly pleaded with Mr Braithwaite to just give Mr Ramsay her money. However, Mr Braithwaite was not inclined to do that, and therefore clung to M.O.’s purse.

o In the disorganized melee that ensued, Mr Ramsay participated in a physical struggle with Mr Braithwaite for M.O.’s purse, while yelling additional threats. These included Mr Ramsay emphasizing that he had “a piece” (i.e., gun), which he asked his brother to retrieve from the house, that he would “kill” both M.O. and Mr Braithwaite immediately, and that he did not care who they told about his conduct or brought with them, as he was willing to “murk” (i.e., murder) anyone. Given Mr Ramsay’s demonstrated willingness to engage in robbery, these could hardly have been viewed or dismissed by Mr Braithwaite or M.O. as idle threats, and they no doubt had an even greater impact on M.O., given Mr Ramsay’s previous misconduct towards her, (including the alarming incident involving his use of what certainly appeared to be a handgun), as well as Mr Ramsay’s own earlier and repeated references to his reputation for violence. In any event, the latest threats by Mr Ramsay, on October 30, 2011, made M.O. even more desperate to end the situation, and she continued to plead with Mr Braithwaite to simply turn over her money.

o Eventually, the wife of Mr Braithwaite’s brother managed to take M.O.’s purse into the London home, in order to ensure that Mr Ramsay got the money he was demanding from M.O..

o Before M.O. and Mr Braithwaite left the driveway of the London home, M.O.’s purse was taken back outside to her by a young girl who lived in the residence, but not before all of the money inside it, (at least $400.00), had been removed. Mr Ramsay admitted at trial that he deliberately kept that money for himself, even though he himself knew, at the time, that the taking of M.O.’s purse was “messed up”, (to use his words), and constituted theft.

o After M.O. then complained that she and Mr Braithwaite now had no money for gasoline needed to make it back to Hamilton, Mr Ramsay himself then came out of the London home and “chucked”, “tossed” or otherwise threw $20.00 at M.O. in a dismissive and demeaning way; in her words, “like [she] was garbage”.

o When Mr Braithwaite and M.O. then left the London home of Mr Braithwaite’s brother, with Mr Braithwaite driving, she then discovered that her government-issued identification, (and in particular, her new driver’s licence, bearing her full name and new home address), also had been taken from her purse. With that discovery came the realization that her efforts to elude and hide from Mr Ramsay all had been frustrated. He now not only knew the location of the new home to which she and her children had moved, but also now had confirmation of M.O.’s proper and full name, which would facilitate his ability to find her in the future, even if she and her children changed their residence again. Although Mr Braithwaite was able to retrieve M.O.’s identification and licence by immediately returning to his brother’s home, (while M.O. waited for him at a nearby coffee shop), that obviously did not “undo” the unfortunate disclosure, to Mr Ramsay, of her full name and new address information.

• Such realities, together Mr Braithwaite’s apparent support and encouragement, led to M.O. finally reporting Mr Ramsay’s actions to the police, in the wake of the London incident. That in turn led to this proceeding and Mr Ramsay’s convictions.

[14] My current task is to determine the appropriate sentence Mr Ramsay should receive in relation to his offences and convictions, in respect of which, (as noted above), he already has spent 200 days in actual custody, up until today.

Circumstances of the offender

[15] The personal circumstances of Mr Ramsay were outlined in detail in the pre-sentence report I have mentioned.

[16] As noted above, this was supplemented by Mr Ramsay’s criminal record.

[17] I have reviewed and considered all of that information, together with evidence presented at trial, (including testimony from Mr Ramsay, his father and his father’s wife, making reference to such matters as Mr Ramsay’s living and working arrangements around the time of the underlying incidents), but note that his personal circumstances include the following:

• He was born in 1983, (the eldest of two children born to his mother), and is currently 31 years old.

• He experienced what he himself described as a “rough” childhood, growing up in an urban housing project area of Toronto known for its poverty, limited social supports and gang violence.

• His mother had a series of significant male relationships, (including one that introduced her to cocaine and the criminal element). She struggled with an addiction to crack cocaine throughout Mr Ramsay’s childhood, which was characterized by involvement with the Children’s Aid Society, foster homes, and youth detention.

• Mr Ramsay himself began using drugs at the age of 12. His use of drugs, (including marijuana and cocaine), then increased and remained problematic over the course of many years, and at least until the age of 26.

• Mr Ramsay’s gang involvement and lifestyle similarly began at the age of 12, with his gang membership and associated criminal activities admittedly then continuing for at least 14 years; i.e., until at least the age of 26.

• Mr Ramsay withdrew from school in grade 10, and an attempted return to adult education a few years later apparently had no notable success.

• Throughout his period of gang involvement, Mr Ramsay fathered three daughters through two mothers. The mother of the two oldest girls, (who are now 12 and 11 years old), was unwilling to be involved in his lifestyle. The mother of the youngest daughter, (who is now 7), is from Pakistan, and her extended family members apparently did not approve of Mr Ramsay either. She and Mr Ramsay enjoyed what was described as a “less than amicable” relationship.

• Perhaps not surprisingly, (given his acknowledged prolonged gang membership and activities), Mr Ramsay already had a significant criminal record prior to the convictions resulting from this proceeding. In that regard:

o His record sadly reflects a persistent tendency towards violence and threats of violence over the course of many years, as demonstrated by prior youth court convictions for armed robbery, robbery, carrying a concealed weapon and assault with intent to steal, as well as adult convictions for assault on two separate occasions, and adult convictions for uttering threats on two other separate occasions. (As noted by Crown counsel, despite the prior convictions for “armed” robbery, and carrying a concealed “weapon”, there are no indications of Mr Ramsay having employed or possessed a firearm or imitation firearm during those earlier incidents.)

o The prior offences I already have mentioned are supplemented by two adult convictions for mischief, and one for possession of a controlled substance.

o Mr Ramsay also has numerous further convictions demonstrating repeated disregard for the legal system. These include youth court convictions for failure to comply with recognizance and failure to comply with a court disposition, as well as adult convictions for failure to comply with a recognizance, obstruction of a peace officer, and two further and separate failures to comply with probation orders. However, I note that Mr Ramsay apparently did manage to comply with his bail conditions in relation to this proceeding for a number of years, without any known violations. (During that period of supervision, his reporting patterns were described as “irregular”, and there apparently were problems in terms of Mr Ramsay’s compliance with the terms of ongoing restitution and probation orders, but he did maintain contact with his supervising officer.)

o Unfortunately, it seems that Mr Ramsay has never managed to stay out of trouble with the law for more than a few years at a time. The largest “gap” in his previous criminal record is a period between June of 2007 and November of 2011. However, that is also the same period during which he was tormenting M.O., and committing the various additional offences now underlying the convictions that bring him before me.

o While his youth court record included punishments of separate 2-4 month periods in secure or open custody, to date Mr Ramsay’s various adult offences have been addressed primarily by suspended or relatively brief custodial sentences, (ranging from 1 to 30 days), coupled with extended periods of probation.

• Although Mr Ramsay says he likes to work, his criminal activities also seem to have had a negative impact on his ability to secure employment over the years. To date, he generally has held only various short term employment positions, demonstrating an aptitude in sales but also repeated difficulty maintaining employment once secured. His longest and most notable period of employment seems to have been a sales position secured and maintained for more than two years while Mr Ramsay was on interim release prior to the trial which brought him before me. Although that particular job also came to an end before Mr Ramsay was returned to custody, (with Mr Ramsay being laid off), he was said to have received an offer of new employment shortly before trial.

• Mr Ramsay reported that he began to wean himself off drugs, and end his gang membership, approximately five years before being interviewed in relation to the pre-sentence report; i.e., in late 2009 or early 2010. Having said that, I note that, throughout his contact with M.O. from 2009 to late 2011, Mr Ramsay apparently was still known by his gang nicknames “”Chubb-rock” and “Rebel”, and was himself repeatedly drawing M.O.’s attention to his reputation for violence. The author of the pre-sentence report also indicates that many of Mr Ramsay’s ongoing friends have been involved in the criminal justice system, and that issues of substance abuse and anger management continue to be an area of concern that Mr Ramsay will need to address.

• Mr Ramsay also reported now having a number of positive family relationships, including a two-year relationship with his rediscovered birth father, and a renewed positive relationship with his mother, (who has been free from drug use for a number of years and enjoys a stable relationship with a new partner who helped Mr Ramsay secure employment). Mr Ramsay also indicated that being a father is now very important to him. In that regard, he says that, although he does not see his youngest daughter as often as he would like, he does enjoy regular contact with his two older girls and their mother, (whom he says he respects and views as a positive influence in his own life). Unfortunately, efforts made by the writer of the pre-sentence report to confirm the family ties reported by Mr Ramsay were not successful.

• The author of the pre-sentence report nevertheless was able to confirm a number of positive steps taken by Mr Ramsay while he has been in custody awaiting sentence. In that regard:

o Mr Ramsay attended Narcotics Anonymous while on a “regular unit” at the Detention Centre, and since moving to a “work unit” in the Detention Centre kitchen, has attended Alcoholics Anonymous, (the only program available to him). He also participated in group and individual stress management sessions, until further scheduled sessions were cancelled because of lockdowns at the Detention Centre.

o As confirmed by positive progress reports and a number of reading and writing tests, Mr Ramsay also has engaged successfully in adult education programs at the Detention Centre, where he is described as a “co-operative, respectful and organized student who makes good use of his time in class”. This in turn played a role in his being cleared for placement in a work unit, (as his teacher was one of a number of staff members at the Detention Centre who were prepared to “vouch” for Mr Ramsay).

o Mr Ramsay also regularly attends chapel at the Detention Centre, has engaged in bible studies leading to certificates, and has made a positive impression on the Detention Centre’s chaplain, who believes Mr Ramsay is genuine in wanting to make and sustain positive changes in his life.

[18] Consistent with his plea of “not guilty” and defence at trial, Mr Ramsay continues to maintain his innocence in relation to the convictions which bring him before me. He accordingly does not accept responsibility for the conduct underlying those convictions, and expresses no remorse in that regard.

[19] However, in his direct written and oral comments to me, he emphasized that, while admittedly involved in criminal activity when he “was younger”, he made numerous positive changes to his lifestyle while he was on interim release; e.g., by working for an advertising company, volunteering with a church community centre, and securing an offer of new employment shortly before post-trial incarceration. (Documents were filed confirming these positive steps.)

[20] He also emphasizes that his recent time in custody has made an additional impact that has changed him a lot. In particular, Mr Ramsay says he has learned a great deal during his recent time in custody, (including a professed realization that he really values his family and children, and is “not built for this anymore”), and that he generally has “become a better man”.

[21] In that regard, he stresses that, while in custody, he has been working and studying hard to improve himself, participating in various forms of counselling, (described above), and developing a strong interest in Christianity, (reflected in his efforts to start a new bible study program at the Elgin Middlesex Detention Centre).

[22] Mr Ramsay says that he really now just wants to “get out”, “start over”, and pursue his new long term goal of completing post-secondary study leading to a career as a high school guidance counsellor or social worker.

Position of the crown

[23] The Crown submits that, having regard to all the circumstances, an appropriate global sentence for Mr Ramsay’s convictions should be 5 years, but with credit then given for the time Mr Ramsay already has spent in custody in relation to these offences.

[24] As noted above, as of today that pre-sentence custody totals 200 days of actual incarceration, (which includes time spent in custody between Mr Ramsay’s arrest and subsequent release on bail pending trial, as well as time spent in custody from the date of conviction up until today).

[25] However, the parties also agreed that, subject to the court’s approval, Mr Ramsay should be given credit for that pre-sentence custody on the basis of 1.5 days for every actual day spent in jail, pursuant to s.719(3.1) of the Criminal Code, in which case Mr Ramsay effectively would receive a credit of 300 days, (or approximately 10 months), for time already spent in custody in relation to these offences.

[26] In effect, the Crown therefore seeks a global sentence in relation to the convictions that would require Mr Ramsay to spend a further 4 years and 2 months in custody.

[27] Crown counsel focused on a global sentence, and did not suggest assignment of any particular duration of sentence to each of Mr Ramsay’s five convictions.

[28] It nevertheless was emphasized that, although sentence for most of the convictions before me could and should run concurrently, (having regard to the “totality” principle, and the reality that Mr Ramsay’s offences were acknowledged to have stemmed from the same event or series of events), the situation was different in relation to Mr Ramsay’s conviction for use of an imitation firearm while committing the indictable offence of extortion.

[29] In particular, relying on the provisions of s.85(4) of the Code, applied in cases such as R. v. P.J.B. 1999 CanLII 18938 (NL CA), [1999] N.J. No. 290 (C.A.), it was emphasized that the sentence imposed upon Mr Ramsay for his offence under s.85(2)(a) must be “served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which [he] is subject at the time the sentence is imposed on [him] for an offence under [s.85(2)].” That offence accordingly must be approached consecutively and separately, when it comes to considerations of “totality”.

[30] In addition to the suggested global period of a further four years and two months of incarceration, the Crown also sought ancillary orders that would include the following:

• pursuant to s.109(1)(a) of the Code, a mandatory weapons prohibition order, (which the Crown says should be for life);

• pursuant to subsections (a)(xv) and (a)(xvi) of the “primary designated offence” definition in s.487.04 of the Code, subsections (a) and (c)(vi) of the “secondary designated offence” definition also found in s.487.04, and ss. 487.051(1) and (3) of the Code, an order compelling Mr Ramsay to provide the number of samples of bodily substances reasonably required for forensic DNA analysis;

• pursuant to s.743.21(1) of the Code, an order prohibiting Mr Ramsay from communicating directly or indirectly with M.O. during any custodial period of the sentence to be imposed by the court; and

• pursuant to s.738(1)(a) of the Code, an order that Mr Ramsay make restitution to M.O. to compensate her for money taken from her by Mr Ramsay.

Position of the defence

[31] Defence counsel took no issue with the ancillary orders sought by the Crown, except in relation to the proposed order directing restitution. In that regard, the defence relied on an ordered restitutionary payment already made by another offender, (i.e., the wife of Mr Braithwaite’s brother, who was convicted of theft for her role in the events of October 30, 2011).

[32] In relation to the Crown’s submissions concerning duration of sentence, defence counsel acknowledged that Mr Ramsay’s sentence for his s.85(2)(a) offence must be served consecutively to the sentences received in relation to his other convictions.

[33] However, relying on authorities such as R. v. Wozny, [2010] M.J. No. 38 (C.A.), defence counsel emphasized what has been described as the “totality principle”, and the interconnected nature of Mr Ramsay’s crimes, and submitted that the sentences in relation to his convictions other than use of an imitation firearm should be served concurrently to each other. (As noted above, this was not disputed by the Crown.)

[34] Defence counsel otherwise did not suggest a particular duration of the consecutive sentence for Mr Ramsay’s s.85(2)(a) offence, or a particular duration for the remaining sentences to be served concurrently, except to say that the global sentence for those four “concurrent” sentences should be “less than penitentiary time”; i.e., something less than two years.

[35] Defence counsel also emphasized the parties’ agreement that, whatever his sentence, Mr Ramsay should receive credit for his pre-sentence custody on the basis of 1.5 days for each actual day already spent in custody, pursuant to s.719(3.1) of the Code.

Sentencing objectives – Legislative directions and general principles

[36] As emphasized by s.718 of the Criminal Code, the fundamental purpose of sentencing is to contribute 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. Denunciation of unlawful conduct;

b. Deterring the offender and others from committing offences;

c. Separation of offenders from society, where necessary;

d. Assisting in the rehabilitation of offenders;

e. Providing reparations for any harm done to victims or the community; and

f. Promotion of a sense of responsibility in offenders, and their acknowledgment of the harm done to victims and the community by their conduct.

[37] Pursuant to s.718.1 of the Criminal Code, a sentence should be proportionate to the gravity of the offence, and the degree of responsibility of the offender.

[38] Pursuant s.718.2 of the Criminal Code, I note that, amongst other considerations, the court is obliged to take into account that:

• Sentence should be reduced or increased to account for any mitigating or aggravating circumstances relating to the offence or the offender, (including evidence that the offence had a significant impact on the victim, considering his or her age and other personal circumstances, including his or her health and financial situation);

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

• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

• All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[39] The sentencing objectives outlined above are applicable in relation to all convictions, and I accordingly have them in mind throughout the process of arriving at a just sentence for Mr Ramsay, in relation to the conviction now before me.

[40] As far as legislative directions are concerned, I already have noted that Mr Ramsay’s conviction pursuant to Count 5 of the indictment carries a mandatory minimum sentence which must be served consecutively to the sentence he receives in relation to his other convictions.

[41] In particular, pursuant to s.85(3)(a) of the Code, every person who commits the offence of using an imitation firearm while committing an indictable offence is liable, in relation to the first such offence, to a minimum punishment of imprisonment for a term of one year (and a maximum term of imprisonment of fourteen years).

[42] Numerous authorities have emphasized that this mandatory minimum must not be considered the “norm”, thereby effectively converting the sentencing “floor” into something resembling a “ceiling” as well.

[43] For example, in R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at paragraph 75, Justice Arbour made the following observation, (with McLachlin J., as she then was, concurring):

The mandatory minimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to the so-called “best” offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances. The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions.

[44] Similarly, in R. v. K.G., 2012 ONSC 3523, [2012] O.J. No. 2785 (S.C.J.), Justice Hill emphasized that:

As a general rule, a one-year sentence should not be routinely meted out to all offenders without regard for the circumstances of the particular s.85 crime, the existence of a guilty plea, or the antecedents of the individual offender including any relevant prior record. Indiscriminately collapsing all sentences to the one-year point would improperly institutionalize an appearance of judicial disapproval of mandatory minimum sentences and turn many of our sentencing principles on their head.

[45] As noted above, pursuant to s.85(4) of the Code, a sentence imposed for an offence under s.85(2)(a) also must be served consecutively to any other punishment imposed for an offence arising out of the same event or series of events, and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under s.85(2).

[46] In the circumstances before me, none of Mr Ramsay’s other four offences carries a mandatory minimum sentence.

[47] The maximum sentence for Mr Ramsay’s robbery is imprisonment for life.

[48] In relation to each of his convictions for uttering death threats, the maximum sentence is five years.

[49] The maximum sentence for Mr Ramsay’s extortion is imprisonment for life.

[50] The severity of the potential punishments prescribed by Parliament for these offences, and for robbery and extortion in particular, reflects the seriousness with which these crimes are regarded by our Society.

[51] Bearing in mind the general sentencing objectives and guidelines outlined above, I turn next to a consideration of possible aggravating and mitigating factors.

Aggravating factors

[52] Mr Ramsay’s ongoing assertion of innocence in relation to these additional convictions certainly is not an aggravating circumstance, although I note that it does leave the court without a basis for inferring that Mr Ramsay has insight into his behavior, and the absence of insight may be relevant to the need for specific deterrence and/or Mr Ramsay’s prospects for rehabilitation. See R. v. C.B., 2008 ONCA 486, [2008] O.J. No. 2434 (C.A.), at paragraph 57.

[53] In my view, this case nevertheless does present a number of aggravating circumstances, which include the following:

• First, the extraordinarily callous manner in which Mr Ramsay repeatedly terrorized his completely innocent victim reflects an appalling lack of character and decency. In particular, only a brutal and heartless thug would threaten a defenceless mother by emphasizing that he knows where her young children go to school, by promising to shoot up the home where she and her children reside, and by holding an imitation firearm to her head with her young children watching just a few feet away. Few things are more terrifying to a parent than the thought of his or her children being exposed to such dangers, and Mr Ramsay was using that reality to achieve his goal of frightening M.O. into doing what he wanted. In my view, these crimes warrant serious denunciation.

• Second, there was an alarming persistence to Mr Ramsay’s persecution of M.O.. Including the initial threatening telephone calls, the Walmart store confrontation, the incident in M.O.’s driveway, and the incident outside the London residence, Mr Ramsay actively targeted M.O. on at least four separate occasions, at various times of day, in various situations and geographic locations, over an extended period of time. The sums he repeatedly took from her were never enough, and his admitted unilateral entry into her deserted former home, together with his acknowledged further efforts to then reach her by telephone, and his expressed intention to “tax” M.O. “for life”, all strongly suggest that she would have suffered further at his hands, had he only been able to find her. To me, such persistence indicates fundamental and troubling inclination, rather than any kind of isolated aberration.

• Third, I am struck by the markedly arrogant and brazen nature of Mr Ramsay’s misconduct. He apparently was intent on targeting M.O. regardless of who was with or around her, (including her sisters, her young children, her friend, a nearby store security guard, or even Mr Ramsay’s own uncle and other relations). He also was intent on targeting her regardless of where she was, including not only her home, (which in itself is an aggravating consideration), but also in a very public store, residential community driveways, and his uncle’s car. As he himself emphasized to Mr Braithwaite and M.O. before their departure from the London residence, he simply did not care who they might tell or who they might bring with them. He apparently was not only very aware of his reputation for violence but also proud of it, as he repeatedly made express use of that reputation when going out of his way to frighten M.O.. The overall impression left by Mr Ramsay’s conduct and statements, in relation to these offences, is that of someone who felt entitled to act entirely as he pleased, immune from the expectations and rules of civilized society, and without consequence.

• Unfortunately, that impression is reinforced by Mr Ramsay’s extensive criminal record, which is another serious aggravating factor in this case, especially insofar as it contains multiple convictions for assault and other convictions, (such as carrying a concealed weapon and uttering threats), showing a persistent propensity towards violence over a very extended period of time. Mr Ramsay’s repeated earlier involvement with the court system apparently did not curb his unfortunate violent tendencies, once again suggesting the need for heightened specific deterrence.

• Another important aggravating factor here is the devastating impact Mr Ramsay’s reprehensible conduct has had on the life of M.O.. That impact, deemed to be an aggravating factor pursuant to s.718.2(a)(iii.1) of the Code, was evident in her compelling testimony at trial, (which included details of the fear she felt at the time of the underlying incidents and the measures she took at the time to avoid Mr Ramsay, as well as her sudden, unilateral and emotional departure from the courtroom at one point, in the middle of cross-examination, after emphasizing the negative effect Mr Ramsay’s conduct has had on her life). Those sad realities were addressed in more detail in M.O.’s Victim Impact Statement, (which she herself apparently felt unable to read out loud during the course of sentencing submissions). She emphasizes that she now experiences panic and anxiety attacks on a daily basis; that she is “very jumpy”, with “no nerves left”, and “emotionally drained”. She finds herself crying a great deal, wondering why all this happened to her. She also has become something of a paranoid recluse. In particular, she moves a lot, finds it very hard to go outside or be with a lot of people, and frequently looks out her window while she regularly is “up all through the night”, all because she is scared of retribution for having finally gone to the police to complain about Mr Ramsay’s conduct. Every day, she wonders whether someone is going to “try to come to hurt her”. In her words, she is “just always running and hiding now”, and “always looking over [her] shoulder”. Despite taking medication in an effort to control her anxiety, panic attacks and insomnia, her nervous condition continues, and she apparently experienced a stress-related minor stroke. Because of her nerves and ongoing reluctance to leave home, M.O. also now unfortunately has lost her job.

Mitigating factors

[54] As for mitigating factors, there are a number of potentially mitigating considerations here, including the following:

• First, I am sympathetic to the reality that Mr Ramsay clearly faced far more challenges than many other Canadians have to face in their early lives. His childhood environment, including his early exposure to drugs and gangs in particular, was entirely conducive to development of the violent antisocial behavior reflected in his extended criminal record, and the conduct that brings him before me now. However, he is now well past the point of being a youthful offender, and the crimes in respect of which he is being sentenced now are certainly not youthful indiscretions.

• Second, Mr Ramsay generally has demonstrated more positive behavior while awaiting trial and sentence, and he has been something of a “model prisoner” during his period of post-trial custody. That certainly merits commendation, (which will be reflected to some extent in my ready agreement with counsel submissions that Mr Ramsay certainly deserves credit for his pre-sentence custody on the basis of 1.5 days for every actual day spent in custody). However, my ability to accept all this as an indication that Mr Ramsay finally has seen the light, turning his back forever on his previous ways, is undermined by his similar and repeated protestations that he ended his gangster lifestyle approximately five years ago; i.e., before or around the time he began to torment M.O.. Actions often speak louder than words, and I note that, throughout the subsequent period of his misconduct vis-à-vis M.O. and Mr Braithwaite, (i.e., from 2009 to 2011), Mr Ramsay continued to make use of his gang-related nicknames, (the only names ever used in his dealings with M.O. prior to the London incident), and he himself repeatedly and proudly made reference to his reputation for violence when making threats. In terms of bona fide indications of intended self-correction from 2009 onward, I would have been more impressed by confirmed indications that Mr Ramsay had engaged in positive personal reforms, and community-oriented activities, before M.O. and Mr Braithwaite went to the police in 2011. Such indications unfortunately are lacking in the material and information before me.

Further analysis

[55] With the above in mind, I now turn to determination and imposition of an appropriate sentence for the offences now before the court.

[56] In that regard, in addition to the matters outlined above, I also have considered the authorities referred to by counsel, bearing in mind the sentencing objective, noted above, that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[57] The reality, of course, is that no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at paragraph 92:

Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

[58] However, noting an inability to locate any precedent involving similar extortionate conduct on multiple occasions, Crown counsel referred me to the following authorities as possible benchmark indications of an appropriate sentence in this case:

• In R. v. Brochu, [2000] O.J. No. 3635 (S.C.J.), affirmed [2001] O.J. No. 1641 (C.A.), the offender was 37 and was working before and after his arrest as a professional cook. He robbed a small grocery store. In doing so, he used a knife with an 8-9 inch blade, which was not brandished but instead placed before the cashier as a threat. No violence was perpetrated. The cashier did experience a degree of mental and emotional distress, but not a reaction the court was inclined to characterize as “severe or traumatic”. The offender had a criminal record dominated by numerous convictions for driving with excessive blood alcohol content. However, his record did include one previous conviction for violence; i.e., a similar premeditated robbery committed approximately four years earlier, in respect of which he had received a sentence of 11 months, (the time already spent in pre-sentence custody), and 2 years of probation. The offender expressed no remorse, and accepted no responsibility for his conduct. In the result, after expressly reducing the sentence that otherwise would have been imposed by 4½ months, (in recognition of the time spent in pre-sentence custody, credited on an unspecified basis), the court imposed a sentence of a further 27 months incarceration in a federal penitentiary. In other words, the court thought an appropriate sentence would have been 31½ months, without credit for pre-sentence custody. The Court of Appeal found there was no basis on which it could reasonably interfere with the sentence imposed. Comparing the Brochu case with the situation now before me, Mr Ramsay is a younger offender, but not a youthful one. He too expresses no remorse, and does not accept responsibility for his behavior. His criminal record does not include a prior conviction of equal severity, but it does contain more convictions of a violent nature, extending over a greater period of time. Moreover, the crimes that bring Mr Ramsay before me are more severe than those in the Brochu case, insofar as they reflect deliberate misconduct on multiple occasions, involve the use of an imitation firearm and death threats, and have had a more profound impact on at least one of Mr Ramsay’s victims.

• In R. v. Swanek, [2001] O.J. No. 6033, affirmed [2006] O.J. No. 4783 (C.A.), the offender was convicted, after trial, of two counts of armed robbery, one count of wearing a face mask during a robbery, and one count of using an imitation handgun in the commission of an offence. On the occasion of each robbery, the victim was a store clerk, working alone, late at night, in a commercial establishment open to members of the public. It seems the offender had no prior criminal record. (None is mentioned by the sentencing judge or the Court of Appeal.) The offender was 19 at the time of the crimes that brought him before the court, and 20 at the time of sentencing. He also had committed each crime as an accomplice, with another offender acting as “ringleader”. Both store clerks filed victim impact statements, emphasizing the fear and upset they had experienced. Each perceived that they were being threatened with a handgun, and a knife with an 8 inch blade was also brandished during one of the robberies. When initially charged with the crimes, the offender confessed. However, he then denied his confession, and continued to maintain his innocence during trial and after his conviction. The sentencing judge emphasized the offender’s young age, and the fact that he was “plainly not the initiator but rather someone who came under the influence of and agreed to go along with a more serious criminal”, who “conceived … and initiated the crimes”. The offender also had significant potential for rehabilitation, (demonstrated by superior academic performance before his recent troublesome behavior). In the result, the offender was sentenced to imprisonment for three years; i.e., two years’ incarceration for the two offences of robbery and wearing a disguise, and a consecutive one year mandatory minimum sentence for use of an imitation firearm. The Court of Appeal dismissed an appeal from sentence, and expressly confirmed that the sentences imposed were appropriate. In doing so, the Court of Appeal emphasized that, despite the offender’s young age and the fact he was not the “prime mover”, a significant jail term was required to reflect the seriousness of the offences. In my view, Mr Ramsay’s crimes are no less serious. However, in marked contrast to the situation in Swanek, Mr Ramsay is neither a youthful first time offender nor a “follower”. He instead has a significant criminal record, and repeatedly tormented M.O. on his own initiative.

• In R. v. Bannerman, [2003] O.J. No. 5912 (S.C.J.), the offender entered a guilty plea in relation to charges of robbery and use of an imitation handgun. He had held an imitation firearm to the neck of a taxi driver when he was asked to pay a fare, but only after an attempt to pay the fare with a stolen credit card failed. (In other words, the ensuing robbery seems to have been somewhat spontaneous rather than premeditated.) The driver initially complied with demands for his wallet and keys, but apparently was not that intimidated as he then pursued the offender on foot before the offender pointed the imitation weapon at him again and told him to stop. At the time of the crimes, the offender was 19, and the court viewed his relative youth as a significant mitigating factor and “determinant feature”. Moreover, although the offender had a youth record which included an assault conviction, (stemming from a “push and a punch between two young men”), and was under a weapons prohibition at the time of his offences, the court found that there were reasonable and perhaps strong prospects for rehabilitation. That impression was reinforced by the offender’s acceptance of responsibility and guilty plea, (which obviated the need for testimony from the victim), the offender’s express indications of sorrow for his conduct and determination never to appear in court again, and by his post-conviction conduct, (which indicated a return to the positive social involvement and academic achievement he had demonstrated until the age of 17, when he rejected family discipline, left home, and began a period of negative peer association and misbehavior). In the result, the court imposed a sentence of 30 months, (notwithstanding the fact that the young man had never been sentenced to custody before), but this was reduced to a total four months of further custody after credit for thirteen months of pre-sentence custody, (credited on a “2 for 1” basis). It seems the sentencing judge assigned a sentence of 30 months to each of the robbery and use of an imitation weapon convictions, (with each similarly being reduced to a further four months of incarceration after credit for pre-sentence custody), and directed that the sentences run concurrent to each other, despite the provisions of s.85(4), which does not seem to have been noted. Contrasting the situation in the Bannerman case with the one before me, Mr Ramsay’s sentence is not mitigated by a guilty plea, or any acceptance of responsibility and indications of remorse, and he is not a youthful offender. His criminal record is more extensive, exhibiting violent inclinations over a much longer period of time, and there are no indications, similar to those in the Bannerman case, of these crimes being a deviation from earlier prolonged periods of positive and commendable behavior. Moreover, the crimes that bring Mr Ramsay before me now equal and surpass those in the Bannerman case, and their commission did not involve misbehavior restricted to one isolated occasion. Some of that misbehavior, (particularly his following up on threatening telephone calls by then appearing in M.O.’s driveway with an imitation firearm), also reflects determination and premeditation rather than spontaneity. Mr Ramsay’s crimes also seem to have had a much more profound and lasting impact on his victim M.O..

• In R. v. Hebert, 2007 ONCA 580, [2007] O.J. No. 3203 (C.A.), the appellant was convicted, following a guilty plea, of robbery with a knife. The offender had approached a 70-year-old man from behind, held a 10-12 inch knife to his throat, demanded the victim’s wallet and credit-cards, and walked the victim to an underground parking lot before fleeing, after the victim called out to a passing motorist. The appellant had a lengthy criminal record, over a period of more than 20 years, including one prior conviction for robbery, two prior convictions for assault, and one penitentiary sentence. Notwithstanding the guilty plea and psychiatric evidence concerning the offender, he was sentenced at first instance to 4 years’ imprisonment in addition to 12 months credit for pre-sentence custody; i.e., to a global sentence of 5 years before pre-sentence custody was taken into account. The Court of Appeal found there was no basis for interfering with that sentence. To the contrary, it stated that the sentence was “entirely fit”, having regard to the serious nature of the offence and the appellant’s record. Comparing that case with the one before me, Mr Ramsay’s extensive prior criminal record may be somewhat less serious, in that none of his prior convictions resulted in a custodial sentence extending beyond 30 days, let alone penitentiary time. However, unlike the offender in Hebert, Mr Ramsay is not entitled to consideration for a guilty plea and acceptance of responsibility, and the crimes that bring him before me now seem more serious than those in the Hebert case. In particular, Mr Ramsay also targeted a vulnerable victim, (particularly when he threatened to harm M.O.’s young children, and threatened her in the immediate presence of those children), and his victim was terrorized through use of what appeared to be a weapon inherently more dangerous than a knife, (an offence which attracts a consecutive mandatory minimum sentence that was not a factor in the Hebert case). Moreover, Mr Ramsay terrorized M.O. on multiple occasions over an extended period of time, (in contrast to the isolated occasion in the Hebert case), and there is no psychiatric evidence suggesting an explanation for Mr Ramsay’s behavior.

• In R. v. Gregorchuk, [2007] O.J. No. 4197 (S.C.J.), the offender and another man robbed a pizza delivery woman while armed with a knife. At the time, the offender was 27 and high on cocaine. The court characterized the incident as a serious crime, involving both violence and a degree of planning. However, the offender demonstrated almost immediate acceptance of responsibility and sincere remorse, as reflected in a letter he wrote shortly after arrest, as well as his guilty plea. The offender had a troubled upbringing, (including exposure to substance and sexual abuse when he was a child), and an extended history of drug addiction and alcohol abuse. However, his criminal record was not extensive, (although it did include one prior conviction for an apparently minor assault), and his longest prior period of incarceration was 30 days, (for a break and enter offence). The court felt that a three year sentence would have been appropriate, but for the mitigating factors. In the result, the offender received a sentence of two years and four months, (less credit for five months of pre-sentence custody credited on a “2 for 1” basis), to be followed by 3 years of probation. The sentence was thought to reflect the seriousness of the offence while maximizing the significant rehabilitative potential of the offender, (e.g., through mandated counselling to address his substance abuse issues), for the benefit of the offender and society. Mr Ramsay is similar in age to the offender in the Gregorchuk case, and has experienced some (but not all) of the same challenges. In contrast, however, he has a much more extensive and violent criminal record, the crimes that bring him before the court are more serious and prolonged, and he demonstrates no similar remorse and acceptance of responsibility reinforced by a guilty plea.

• In R. v. K.G., 2012 ONSC 3523, [2012] O.J. No. 2785 (S.C.J.), the offender was found guilty, after trial, of robbery, using an imitation firearm to commit robbery, and committing robbery while masked. Along with two other offenders, he confronted a young woman with a replica firearm in her driveway, as she exited her vehicle shortly after midnight. The victim was forced to turn over her purse and car keys, before the offenders then departed in her car. The impact on the victim was profound, and included a dramatic change to her lifestyle as well as therapy. However, she thankfully was not required to testify at trial. At the time of the crimes, the offender was only 18. However, he had a prior criminal record, (starting with convictions in Youth Court at the age of 17), that included assault, possession of a weapon and assault with a weapon, along with other convictions that included break and ether, failure to attend court and breach of recognizance. He nevertheless seems to have spent no more than 7 days in custody for his earlier offences. At the time of the crimes bringing him before the court, he was on probation for assault and subject to a weapons prohibition order. The offender demonstrated no remorse or apparent insight. Moreover, the PSR was negative, confirming that the offender had a pro-criminal attitude and behavior, was not motivated to complete his education or seek legitimate employment, and was at risk to reoffend. In the result, the offender received a global sentence of 3½ years’ incarceration. (The case report suggests that was made up of a 21 month sentence for the robbery and a consecutive 15 month sentence for use of the imitation firearm, but that cannot be correct or complete, as that adds up to 36 months and not 42 months.) In the course of delivering its reasons for sentence, the court considered what has been described as the “jump” principle, (whereby sentences for a repeat offender generally are increased gradually, rather than by large leaps), but emphasized that application of the principle is tempered by a court’s obligation to always consider the seriousness of the crime upon which an offender currently is being sentenced, (both on its own and in relation to the type of earlier crimes for which the offender previously has been sentenced). Crimes as serious as robbery and use of an imitation weapon were found to warrant a significant increase in sentence from earlier and relatively modest periods of incarceration – and I think the same approach should apply in Mr Ramsay’s case, (i.e., warranting imposition of a sentence significantly greater than the relatively short periods of custody imposed in relation to his prior convictions). In making further comparison between the situation in R. v. K.G. and the one now before me, I think it fair to say that Mr Ramsay’s PSR is more positive, and he has done much between arrest and sentence to suggest that he has learned his lesson and changed his ways, and that his prospects for rehabilitation accordingly are strong. However, he obviously is not a youthful offender, and his more prolonged and sustained record of misbehavior over the years, (reflected in his more serious criminal record), suggests that permanent rehabilitation may be more of a challenge than Mr Ramsay claims, as does the PSR indication that substance abuse and anger management remain areas of concern. Moreover, the crimes in the case before me arguably were more serious, particularly insofar as they were committed on multiple occasions over a more extended period of time, with a more directed and determined focus on a victim who seems to have suffered as much and arguably more, in personal terms if not property deprivation, than the victim in the R. v. K.G. case.

• In R. v. McLaughlin, 2014 ONSC 307, [2014] O.J. No. 316 (S.C.J.), the offender, along with three other individuals, surrounded the car of a male victim and his girlfriend, demanding the couple’s belongings, and trying without success to force entry into the vehicle. What looked like a firearm was pointed at the victims, (although it was not clear whether this was done by the offender or one of his companions). The male victim was not intimidated, but drove away at his frightened girlfriend’s assistance before then returning to the scene to make a citizen’s arrest of the offender. After trial, the offender was found guilty of robbery and use of an imitation firearm while committing robbery. The offender was 19 at the time of the offences, and only 20 at the time of sentencing. Notwithstanding his youth, he had a substantial criminal record, including a number of convictions for assault and uttering threats, as well as other previous convictions for robbery and use of an imitation firearm, but his longest prior sentence was for a period of ten days. However, he had been formally diagnosed with ADHD and was said to be a “follower”, who had been led into trouble by negative peer association. He also had a very supportive family, who intended to care for the offender following his release from custody. The offender’s conduct and statements while in pre-sentence custody suggested rehabilitation potential, (although his continued misconduct after earlier convictions cast doubt on his future prospects). In the result, the offender received a global sentence of three years; i.e., a 20 month sentence for the robbery, and a consecutive 16 month sentence for use of an imitation firearm. By way of contrast, I note that Mr Ramsay is clearly not a youthful offender, and he has a more extensive criminal record, demonstrating violent tendencies over a more extended period of time. Moreover, the crimes that bring Mr Ramsay before me now involve multiple incidents of misconduct, (as opposed to the one occasion underlying the McLaughlin case), all with Mr Ramsay very much acting on his own persistent initiative, and Mr Ramsay’s victim clearly appears to have suffered much more than either victim in the McLaughlin case. It is also important to note and emphasize, I think, that it was not clear in the McLaughlin case whether the offender himself had held and used the imitation firearm, and he was sentenced on that basis. There is no such doubt in relation to Mr Ramsay.

[59] Defence counsel referred me to two additional sentencing precedents.

[60] The first was the Manitoba Court of Appeal’s decision in R. v. Wozny, supra, which involved circumstances far removed from the situation before me; i.e., an offender pleading guilty to 17 gas station robberies, committed over a period of 1½ months, to fund the offender’s addiction to crack cocaine. Twelve of the robberies were committed while the offender was armed with a knife and two while he was armed with a screwdriver. During the remaining robberies he was unarmed.

[61] The Wozny case was cited by defence counsel primarily to emphasize general principles of proportionality and totality of sentence, including the circumstances when imposition of a concurrent rather than consecutive sentence was appropriate. However, defence counsel noted that the Manitoba Court of Appeal initially ascribed a sentence of two years for a robbery where the offender was neither armed nor disguised, prior to application of the totality principle, but then reduced the sentence to one year for such a robbery, to avoid the otherwise “crushing” sentence for the accused in that case, given his age, circumstances and prospects.

[62] The second additional sentencing precedent referred to by defence counsel was R. v. March, [2008] Y.J. No. 47 (S.C.). In that case, the 40-year-old offender was a crack cocaine addict who, while trying to collect a $70 drug debt, used a baseball bat to break open the outer door of a residence while asking for money and threatening to kill the person inside. Despite repeated and loud banging, he was unable to break down the inner door. The person inside was quite terrified, but was armed and threatened to shoot the offender if he entered. The offender then left, striking a vehicle with his bat as he departed. The person inside the residence and his neighbors were said to be traumatized by the incident. After trial, the offender was convicted of extortion and mischief, (owing to his wilful damaging of the exterior door). He also pled guilty to three process offences while awaiting trial; i.e., two failures to appear, and one breach of recognizance. Among the aggravating factors noted by the court were the offender’s lengthy and serious criminal record, (which included a conviction 6 years earlier for an incident involving a home invasion, assault and uttering threats), the fact that the crimes before the court were precipitated by collection of a drug debt, a largely negative pre-sentence report, (which indicated a lack of remorse and attribution of blame to the criminal justice system), and a conclusion that breaking of the relevant outer door came within the ambit of s.348.1 of the Code, (which deems “home invasion” to be an aggravating factor). However, it was noted that the offender did not actually enter the home or assault its occupant, and negative aspects of the PSR were offset by a positive and encouraging report from a social worker, who confirmed that the offender had taken steps towards his own rehabilitation through counselling programs, (and employment. Moreover, by the time of sentencing, the offender was expressing remorse for his conduct. The court indicated that the appropriate range of sentence for extortion is 1-5 years. In the result, (prior to giving credit for pre-sentence custody), the court imposed a sentence of incarceration for two years less a day in relation to the extortion offence, and a concurrent sentence of 30 days for the mischief conviction. This was said to recognize the very serious nature of the extortion offence while considering the ongoing rehabilitation program being pursued by the offender at the Whitehorse Correctional Centre.

[63] In the case before me, Mr Ramsay similarly has taken steps towards self-rehabilitation, and he too deserves credit for that, (although unlike the offender in the Smarch case, Mr Ramsay does not accept responsibility for his crimes or express remorse for his conduct). The offender in the Smarch case was older than Mr Ramsay, and in some respects seems to have had a more serious criminal record. On the other hand, the extortionate conduct that brings Mr Ramsay before me involves serious and persistent misconduct on multiple occasions over a more extended period of time, directed towards a completely innocent and defenceless victim, and is buttressed with additional related convictions for uttering death threats and robbery, (let alone use of an imitation firearm, for which a separate consecutive sentence is required).

Assessment

[64] On the whole, having regard to all the circumstances of the particular case now before me, and the authorities presented by counsel, it seems to me that it would be quite inappropriate to impose a concurrent sentence of less than two years for Mr Ramsay’s crimes other than use of an imitation firearm, and a consecutive sentence for that additional crime limited to the one year mandatory minimum, (if that is what defence counsel was proposing).

[65] In my view, as suggested by the above comparisons of the situation before me with the various precedents cited by counsel, this is a case that warrants more serious treatment.

[66] There needs to be stronger denunciation of Mr Ramsay’s persistent and brazen misconduct, as well as a sentence that promotes both general and specific deterrence, both of which are important considerations in a case of this nature.

[67] In particular, it needs to be brought home to Mr Ramsay, (and others like him, who contemplate embarking on such extortionate and violent conduct), that the rules of civilized society do indeed apply to all, and that there will be serious consequences for such reprehensible actions when a repeatedly tormented victim like M.O. has the courage to come forward.

[68] The five year global sentence requested by the Crown is somewhat higher than many, but not all, of the precedents to which I was directed.

[69] However, bearing in mind the various comparative considerations which I have identified when reviewing those precedents, it seems to me that a five year global sentence for Mr Ramsay certainly would not be outside the appropriate range.

[70] Indeed, as noted above, in many ways the circumstances of this case are worse than those in the Hebert case, wherein our Court of Appeal thought a sentence of five years, (prior to credit for pre-sentence custody), was “entirely fit”. That in turn suggests that Mr Ramsay’s crimes might very well merit a global sentence in excess of five years.

[71] Moreover, the length of the global sentence in this case will be driven to some extent by the length of the required consecutive sentence for Mr Ramsay’s s.85(2)(a) offence, and in my view the circumstances of that offence were particularly appalling. I think they demand punishment more severe than imposition of the mandatory one year minimum.

[72] I am mindful of the numerous commendable steps Mr Ramsay now has taken towards self-rehabilitation, and he needs to know that such efforts will be recognized and not go unrewarded.

[73] However, that has to be balanced by a sentence that also makes it clear to Mr Ramsay that serious crimes have serious consequences.

[74] Having regard to all the circumstances, I find that the appropriate global sentence for Mr Ramsay, prior to credit for time spent in pre-sentence custody, should be a period of imprisonment totaling 4 years and 8 months, calculated in the manner I will specify during formal imposition of sentence.

Ancillary orders

[75] As for the various further orders requested by the Crown:

• A mandatory weapons prohibition order is required pursuant to s.109(1)(a) of the Code. Given Mr Ramsay’s admitted gang-related history, the persistent tendency to violence indicated by his criminal record, and his deplorable conduct in this case in relation to M.O., I agree with the Crown’s request, (not opposed by the defence), that the prohibition should be for life.

• The DNA sample order requested by the Crown was not opposed by the defence, but I independently think it is required and appropriate. Robbery and extortion are both expressly included within the s.487.04 definition of “primary designated offence”, which in turn means that a DNA sample order in Form 5.03 is mandated in any event pursuant to s.487.051(1) of the Code. However, in my view, such an order also would be warranted in this case because of Mr Ramsay’s convictions for uttering threats, (which is expressly included in the s.487.04 definition of a “secondary designated offence”), and his use of an imitation firearm while committing the indictable offence of extortion, (as that is an indictable offence for which the maximum punishment is more than five years, thereby bringing it within the “secondary designated offence” definition as well). In particular, having regard to Mr Ramsay’s criminal record, tendency to violence, and the odious nature of his threats and use of an imitation firearm in this case, as well as the minimal impact the taking of DNA samples would have on Mr Ramsay’s privacy and security, I also think a DNA sample order in Form 5.03 is justified in relation to each of Mr Ramsay’s secondary designated offences as well.

• The non-communication order sought pursuant to s.743.21(1) of the Code was not opposed by the defence, and I think it entirely appropriate in the circumstances. Mr Ramsay obviously needs all the incentive this court can provide to stay away from M.O. and leave her alone, and she should have the additional comfort of such an order.

[76] As for the requested ancillary order pursuant to s.738(1)(a) of the Code, directing Mr Ramsay to make restitution to M.O.:

• The source of the parties’ disagreement as to the appropriateness of such an order stems from the fact, already mentioned, that a similar order was made in relation to another offender; i.e., Ms Knez, (the wife of Roger Braithwaite’s brother), who was convicted of theft for her role in the events of October 30, 2011.

• In the course of that separate criminal proceeding, Ms Knez apparently acknowledged that $590.00 was taken from M.O.’s purse on the day in question, and Ms Knez accordingly was ordered to repay that amount, via the court office, as part of her sentence.

• For her part, Ms Knez complied with the provisions of that order by paying $590.00 to the court. However, the court then mistakenly paid the funds to Mr Braithwaite, who in fact had not sustained the relevant loss. Mr Braithwaite, who no longer has a relationship with M.O., apparently then cashed the court’s cheque before he completely disappeared.

• In the circumstances, the Crown emphasizes that the true victim sustaining the relevant monetary loss has yet to be compensated, while the defence emphasizes that there already has been compliance with one restitutionary order, and that Mr Ramsay should not be punished unnecessarily because of the court’s mistake in directing the funds from Ms Knez to Mr Braithwaite rather than M.O..

• Counsel were unable to supply me with any authority indicating or suggesting how s.738(1)(a) should be applied in these somewhat unusual circumstances.

• However, I note that s.738(1)(a) itself, when dealing with the possibility of restitutionary orders to address the loss of property by someone as a result of the commission of any offence, directs the court to focus on “an amount not exceeding the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned”. [Emphasis added.] In other words, the authorizing section incorporates a mechanism to ensure that a victim does not effectively receive a windfall through overlapping and duplicative restitution, thereby effectively putting the victim in a better position, (in terms of property at least), than he or she was prior to commission of an offence.

• But that is not this case. The simple reality of the matter before me is that M.O. is the one who lost money because of Mr Ramsay’s offences, (and his extortionate conduct and robbery in particular), and none of that property has been returned to her. Nor is it likely to be returned to her, except through restitution made by Mr Ramsay, now that Ms Knez has complied with her court ordered obligation and Mr Braithwaite has disappeared completely, taking the funds from Ms Knez with him.

• In the circumstances, I also see no reason why Mr Ramsay effectively should benefit from the mistake made by the court in misdirecting the funds paid by Ms Knez. His victim M.O. remains out of pocket because of his misconduct, and he himself has done nothing to provide restitution to her.

• In the circumstances, I therefore think it would be just, and entirely consistent with the letter and spirit of s.738(1)(a), if the sentence imposed on Mr Ramsay includes an order directing him to make restitution to M.O. for the amounts she has lost, without any deduction for sums that have not been returned to M.O..

• As for the proper amount of that restitutionary order, the Crown focused initially on the sum of $590.00. During the separate criminal proceeding against Ms Knez, she apparently acknowledged having taken that amount of money from M.O.’s purse on October 30, 2011, and that accordingly was the amount employed in the restitutionary order made against Ms Knez. However, as I noted during the course of counsel’s submissions regarding sentence, there was no similar evidence or admission from Ms Knez during the course of this proceeding.

• To the contrary, the evidence in this proceeding indicated that M.O. was deprived of $400 (and not $590.00) on October 30, 2011. Having said that, I do not think it sufficient to limit Mr Ramsay’s obligation to make restitution to that amount, as it ignores the evidence that his prolonged extortionate conduct also deprived M.O. of further sums in response to his threatening telephone calls, and the Walmart confrontation.

• Having regard to all the circumstances, I think it just and appropriate to order that Mr Ramsay make restitution in relation to all sums M.O. parted with as a result of the extortion and robbery for which Mr Ramsay is responsible. His sentence therefore shall include an ancillary order directing him to pay M.O., via the court, the total sum of $900; i.e., the total of $200, (representing the money paid in response to the threatening telephone calls), plus $300, (taken from M.O.’s purse in the Walmart store), plus $400, (taken from her purse on October 30, 2011).

Formal imposition of sentence

[77] Stand up please Mr Ramsay.

[78] For the reasons I have outlined, I am sentencing you to a total period of imprisonment of 4 years and 8 months, made up of the following custodial sentences in relation to the following convictions:

• in relation to the Count 1 conviction for robbery, a sentence of 1.5 years, (to be served concurrently with the sentences in relation to the convictions on Counts 2, 3 and 4, but consecutive to the sentence in relation to the conviction on Count 5);

• in relation to the Count 2 conviction for uttering a death threat vis-à-vis Mr Braithwaite, a sentence of 5 months, (to be served concurrently with the sentences in relation to the convictions on Counts 1, 3 and 4, but consecutive to the sentence in relation to the conviction on Count 5);

• in relation to the Count 3 conviction for uttering a death threat vis-à-vis M.O., a sentence of 1 year, (to be served concurrently with the sentences in relation to the convictions on Counts 1,2 and 4, but consecutive to the sentence in relation to the conviction on Count 5);

• in relation to the Count 4 conviction for extortion, a sentence of 2 years and 8 months, (to be served concurrently with the sentences in relation to the convictions on Counts 1, 2 and 3, but consecutive to the sentence in relation to the conviction on Count 5); and

• in relation to the Count 5 conviction for use of an imitation firearm while committing the indictable offence of extortion, a sentence of 2 years, (to be served consecutive to the sentences in relation to Counts 1, 2, 3 and 4).

[79] However, against that total sentence of 4 years and 8 months, you shall receive credit for time spent in custody to date, in relation to these offences, on the basis of 1.5 days for each actual day spent in custody.

[80] In particular, for your 200 days in actual custody, you shall receive credit for 300 days (or 10 months) spent in custody, to be applied against your total sentence. That will require you to spend a further three years and 10 months in custody.

[81] There will, as well, be further ancillary sentencing orders whereby:

• pursuant to s.109(1)(a) of the Code, you will be subject to a mandatory weapons prohibition order, for life;

• pursuant to ss.487.04, 487.051(1) and 487.051(3) of the Code, you will provide the number of samples of bodily substances that is reasonably required for forensic DNA analysis;

• pursuant to s.743.21(1) of the Code, you shall not communicate, directly or indirectly with M.O., (also known as “M.O.”), during the custodial period of your sentence; and

• pursuant to s. 738(1) of the Code, you shall make a restitutionary payment to M.O., through the court, in the amount of $900.00.

[82] Your crimes pre-date changes in legislation mandating imposition of victim fine surcharges, and I think such charges inappropriate in this case bearing in mind your inability to earn income while in custody.

[83] Mr Ramsay, for too long, you’ve given too little thought to where your choices might take you, and to the impact those choices might have on others.

[84] It’s unfortunately now too late to change the past, for you or your victims, and for the reasons I have indicated, the serious crimes that brought you before me have merited serious punishment.

[85] You’ve taken a number of very positive steps while waiting for trial and imposition of this sentence, and you say you’ve now finally turned a corner, in terms of your social outlook and intentions for the future.

[86] For your sake, the sake of your children, and the sake of the wider community, I certainly hope you mean it. You are going to have plenty of time to think more about your choices and your future during the challenging times ahead.

[87] For now, I will endorse the indictment and the warrant of committal accordingly.

“Justice I. F, Leach”

JUSTICE I. F. LEACH

Released: (Orally) June 19, 2015