1. Overview

[1] I convicted Mr. Chong of breaking and entering and possession of property obtained by crime over $5000.00. He now comes before the Court for sentencing.

2. The Facts

(a) Circumstances of the offence

[2] In April 2013 the police investigated a series of residential break-ins in Scarborough. The police were suspicious that a group of young men, including Mr. Chong, was responsible. Surveillance of the group confirmed that over the course of several days the group was, suspiciously, in the vicinity of several residential break-ins. The police did not have enough evidence, however, to charge any member of the group.

[3] On April 10, 2013 the police installed a tracking device on a Mazda 6 with dark tinted windows registered to Tullaram Naraine. The police had observed this Mazda in the vicinity of several of the break-ins. The police had also observed the vehicle engaging in counter-surveillance driving. Mr. Naraine was part of the group under surveillance. Mr. Chong was also seen with the group occasionally. The tracking device (along with police surveillance) showed that on the morning of April 10, 2013 the Maza drove from Scarborough to 100 Sullivan Street in Ajax. Adrian Chong lives at that address. The Mazda was then tracked to the vicinity of 24 Idehill Crescent, in Scarborough, where it parked for several minutes. A break-in occurred there at the time the Mazda was parked. The Mazda conducted counter-surveillance driving throughout April 10, 2013.

[4] The police tracked the Mazda to the vicinity of 2128 Birchmount Road, in Scarborough after the break-in. Upon receiving information they entered an apartment, froze it, obtained a search warrant, and seized items stolen from 24 Idehill Crescent. Mr. Chong was not among those immediately arrested. He was, however, seen on surveillance videos leaving as the police arrived and was arrested shortly after the others. I found him guilty as a party to the break-and-enter at 24 Idehill Crescent and the possession of the stolen property.

[5] I do not believe that Mr. Chong was not the prime mover of this offence. The evidence is that this break and enter was one of a rash of break and enters in Scarborough by the same group. There is suspicion, but no evidence that Mr. Chong was involved in any of the other break and enters. I do not know the exact role that he played in this one, but it is clear to me, especially after reading more about him, that he was not the driving force behind this gang of residential burglars. I also suspect, although I cannot say one way or the other, that Mr. Chong is susceptible to some amount of manipulation.

(b) Circumstances of the offender

[6] Adrian Chong is a young man of 21 years old. He is a first offender. He has only completed grade 8. He has never had a job. He apparently smokes marijuana on a daily basis, which undoubtedly exacerbates his mental health issues.

[7] Mr. Chong has significant mental health issues. I first became aware of Mr. Chong’s mental health issues when I read the pre-sentence report. Ms. Renata Chong, his mother, reported to the probation officer that Mr. Chong’s biological father suffered from schizophrenia. The father had exhibited bizarre behaviours, such as hiding under cars and in trees. She became aware of the diagnosis later. Ms. Chong indicated that her son, Mr. Chong, had become consumed with delusions. He has suffered psychotic episodes. She told the probation officer that Mr. Chong was convinced that aliens hovered over their home. He believes that demons are corrupting his mind through television. During one psychotic episode he told his mother that his blood had changed from blue to red.

[8] As might be expected, upon reading the pre-sentence report I became extremely concerned. I learned from his counsel, Mr. Elbrit, that Mr. Chong has been under psychiatric care. Incarceration would ordinarily be an appropriate punishment for a residential break and enter, but I became concerned about what incarceration would mean for Mr. Chong. I asked counsel for further information. The matter was adjourned several times but I did receive reports about Mr. Chong’s mental health.

[9] Mr. Chong was initially assessed at Ontario Shores Centre for Mental Health Sciences in Whitby. In a report dated June 27, 2015 he was provisionally diagnosed with schizophrenia, of the paranoid type. He reported episodes of hallucinations and ongoing symptoms of psychosis.

[10] The hallucinations included seeing bugs in people’s heads, and evil beings that shoot negative beams into his home. He smelled things that are bad. If anyone contradicted him he argued that they were brainwashed. Mr. Chong reported that God has messaged by telling him that he is on the right road. He reported that God communicates to him mentally. He experiences energy when God whispers to him.

[11] His attending psychiatrist at Ontario Shores referred him to Durham Mental Health Services. He was prescribed quetiapine XR, an anti-pscyhotic drug.

[12] Melani Donnelly, an intake worker at Durham Mental Health Services, initially assessed Mr. Chong in July 2015. Mr. Chong was then assigned to work with Foster Cromwell, a community mental health worker. Mr. Cromwell assisted Mr. Chong with an application for the Ontario Disability Support Program. After a series of cancelled meetings, Mr. Chong eventually stated that he no longer wished to be involved with Durham Mental Health Services.

[13] Mr. Elbrit has assured the Court that there are no fitness or NCR issues with Mr. Chong. The various reports, including the pre-sentence report, indicate that he is not violent. That said, it is clear from reading the various reports that Mr. Chong is a troubled and ill young man.

(c) Impact on the victim and the community

[14] Ms. Tooth, the victim, reported that she has recovered some of her property but that she is still missing items of great financial and sentimental value stolen from her home. Although this was not a crime of personal violence, it clearly undermines the feeling of safety and security that all members of the communit are entitled to feel in their homes. Mr. Chong, through his callow actions and the actions of his friends, has undermined that feeling. The value of safety and security of one’s home is one of the most important in our society. Residential burglars leave people and the community feeling insecure, violated, and vulnerable.

3. Positions of the Crown and Defense

[15] Mr. McGrath initially took the position that Mr. Chong should receive a sentence of one-year incarceration. After considering the parity principle and the sentence received by a co-accused, Jihad Al-Kisady, Mr. McGrath very fairly re-considered the Crown’s position and suggested that a sentence in the range of 6 to 9 months was in order. Mr. Elbrit seeks a non-custodial sentence for Mr. Chong. He acknowledges that the Crown’s position is well within the normal range of sentence. He points to factors however, that, he says show that there are exceptional circumstances.

4. Case Law

[16] Crown counsel relied on R. v. Micallef, 2014 ONCA 117. The offender pleaded guilty to one count of possession of stolen property and one count of break and enter. He broke into the victim’s residence and stole about $43,000.00 in electronics, cash, and jewellery. The stolen property count was from a different break-in and included computers and jewellery. The offender had a criminal record. There was a joint submission for a four-month sentence. The sentencing judge rejected the joint submission, calling the break in a “crime of violence” and imposing a 12-month sentence. The Court of Appeal found that by characterizing the crime as one of violence the sentencing judge committed an error of law. The Court of Appeal agreed that four months was lenient, but varied it to accord with the joint submission.

[17] Crown counsel also relied on R. v. Pegg (1987), 24 O.A.C. 74 (Ont.C.A.). The offender pleaded guilty to four residential break and enters. He was the ringleader of a group of youths. He had no criminal record and was only 19 years old. The Court of Appeal, however, noting that the offences were serious and required incarceration, reduced the sentence imposed at trial from 23 months to 17 months.

[18] Mr. Elbrit relied on R. v. Parker, 2014 NBCA 17. The offender pleaded guilty to break and enter and uttering threats. The trial judge imposed a sentence of six months incarceration. The offender discovered that her husband and the victim were having an affair. One early morning she drove to the victim’s home and found her husband’s truck there. She proceeded to break into the victim’s residence. The scene that unfolded included verbal threats and smashing items. Shortly after the incident the offender was detained under the New Brunswick Mental Health Act and admitted to the psychiatric ward of the regional hospital in Fredericton. The Court indicated at para. 37 that in the circumstances of this particular case a fit sentence did not include jail:

In my opinion, what distinguishes this case from other break and enter or home invasion cases is the state of the appellant's mental health. Absent this factor, upon which I place considerable weight, I would not take issue with imposing a short (although certainly less than 6 months) custodial sentence, followed by probation. To elaborate, the threats uttered by the appellant were serious enough to warrant a brief period of incarceration but for the overriding seriousness of the appellant's mental health.

[19] The Court of Appeal imposed a suspended sentence and three years probation.

5. Mitigating and Aggravating Factors

[20] The key aggravating factor in this case is that the break-in was made at a residence. As I have stated, everyone has the right to feel safe and secure in their home. The young men who broke into Ms. Tooth’s home violated that feeling of safety and security. I also find it aggravating that Mr. Chong has made no effort to assist Ms. Tooth in the recovery of her property.

[21] There are few, if any mitigating factors here other than the fact that Mr. Chong is a first offender. The other mitigating factor that I see is that Mr. Chong appears to enjoy the support of his mother, stepfather, and family generally. I have observed that his mother has consistently attended court. She is clearly anxious and concerned for her son. My impression is that she is a very decent, hard-working parent and I have no doubt that she will give him whatever assistance and support that she can.

6. Principles of Sentencing

[22] The principles of general deterrence and denunciation play the key roles with residential break-ins. The Court must strongly condemn invasions of people’s homes, and punish them severely. Of course, the Court must also have regard to the principle of rehabilitation, especially in a case like this. Parity also plays a role, which I will describe below.

7. Ancillary Orders

[23] Break & enter is a primary designated offence. There will be a DNA order. There will also be a weapons prohibition for 10 years.

8. Final Decision

[24] The key principles of sentencing in this matter are general deterrence, specific deterrence, and rehabilitation.

[25] Parity is also an important principle of sentencing in this case. Mr. Chong’s three co-accused all pleaded guilty. The co-accused were dealt with as follows:

• Jihad Al-Kisady pleaded guilty to one count of break & enter. He had two youth convictions and an adult conviction for unauthorized possession of a prohibited or restricted weapon for which he received a $200 fine and probation order. Justice Nordheimer sentenced him to 12 months in jail and 1 year probation.

• Tullaram Naraine had a prior related record. He pleaded guilty to two counts of break & enter. Justice Ducharme sentenced him to 2 ½ years incarceration less pre-trial custody.

• Ricky Salmon had a significant criminal record. He pleaded guilty to possession of stolen property over $5000. The police seized the stolen property from his apartment. Justice Nordheimer sentenced him to 9 months incarceration less pre-trial custody.

[26] Mr. McGrath and Mr. Elbrit researched the type of institution that could handle a person with Mr. Chong’s illness. They suggested that if I was minded to send Mr. Chong to jail, I should consider making a recommendation that he go to either the Ontario Correctional Institute or the St. Lawrence Valley Correctional Institute. Of course, it is up to the correctional authorities where to place someone. In any event, the real question is not which institution Mr. Chong should go to, but what is a fit sentence in the circumstances of this case.

[27] I accept that the range of sentence proposed by the Crown is appropriate. In my view, however, there are exceptional circumstances that require that I depart from the range. It would be very easy to simply warehouse Mr. Chong in jail. A jail sentence is certainly a very appropriate punishment for someone who has committed a residential break-in.

[28] The easy thing, however, is not always the right thing. This is why I believe that exceptional circumstances justify departing from the range:

• It is apparent from the circumstances of the case and the information in the pre-sentence report that Mr. Chong’s involvement with the criminal justice system has much to do with the people he was associating with. A jail sentence will land him with people very much like those with whom he carried out the break and enter.

• Mr. Chong is clearly struggling with serious mental health issues. He has been diagnosed with schizophrenia of the paranoid kind and been prescribed anti-psychotic medication. He has experienced episodic hallucinations and ongoing psychosis.

• I am concerned about Mr. Chong’s ability to cope with a custodial setting. I am aware that there are mental health facilities in the provincial correctional system, but in truth his most important support system is his family. I simply do not accept that the principle of rehabilitation will be satisfied by a custodial sentence.

• The professional assessments of Mr. Chong have concluded that he is not violent.

[29] I understand that I am giving more weight to the principle of rehabilitation than I am to the principles of general and specific deterrence. I only do so because of what I see as exceptional circumstances. In my view, this case has significant similarities to the Parker case and I agree with that result. As the New Brunswick Court of Appeal said at paras. 39 and 42:

The picture of the appellant clearly painted by the Pre-Sentence Report is one of an individual struggling with significant mental health issues, serious enough to lead to attempted suicide…

The appellant is in need of rehabilitation, and specifically treatment for her mental illness. Given the facts before the Court, a period of incarceration is not the appropriate sentence. A person such as the appellant belongs not in a jail cell, but in a doctor's office, counselling program, or treatment facility.

[30] Furthermore, I respectfully adopt the conclusion of the New Brunswick Court of Appeal that a non-custodial sentence in a case of this nature requires exceptional circumstances and that this case should have very limited precedential value. As the Court said:

In terms of precedential significance, this decision does not stand for the proposition that anyone suffering from mental illness is entitled to break into another's home, damage property, and utter threats. Nor does it stand for the proposition that when faced with an individual suffering from mental illness who has been convicted of a home invasion, the appropriate disposition is a suspended sentence. There will be, however, those rare fact situations in which such a disposition is appropriate, and in my opinion this is one such case.

[31] I would add that if there were a possibility that Mr. Chong was pre-disposed to violent behaviour it is possible that I might take a different view.

[32] Thus, I suspend the passing of sentence and place Mr. Chong on probation for three years. Mr. Chong should be aware that this probation will be onerous. I understand that there is a risk that Mr. Chong might be set up to fail. I take into account the fact that he has been under community supervision while on bail without incident. Mr. Chong should definitely not regard probation as a free pass. It is nothing of the sort. A breach may well land him in jail after all.

[33] The terms of probation will be as follows, in addition to the statutory terms:

• Mr. Chong will meet with a probation officer within three business days of today’s date and thereafter as his probation officer requires.

• Mr. Chong is to have no contact, directly or indirectly, with Barabara Tooth, Jihad Al-Kisady, Tullaram Naraine, Ricky Salmon, or Khalifa Topey.

• Mr. Chong is to have no contact, directly or indirectly, with anyone known to him to have a criminal record except for members of his immediate family.

• Mr. Chong is to carry a copy of his probation order on him at all times when outside his residence.

• Mr. Chong will reside at an address approved of by his probation officer.

• Mr. Chong is to abstain from possession or consumption of non-prescription drugs.

• Mr. Chong is not to attend within 250 meters of 24 Idehill Crescent, Toronto.

• Mr. Chong is to attend and actively participate in the Community Support Program through Durham Mental Health Services. He is to provide proof of his attendance and participation to his probation officer.

• Mr. Chong is to arrange for an appointment with a psychiatrist at Ontario Shores Centre for Mental Health Sciences within 72 hours and provide proof of his employment to his probation officer. Thereafter he is to attend for all appointments with his psychiatrist or his/her designate as required by his psychiatrist or his/her designate. He is to take all treatment as recommended by his psychiatrist or his/her designate. If he refuses such treatment, he is to report to forthwith to his probation officer and thereafter as required.

• Mr. Chong is to sign all necessary medical releases to allow his probation officer to monitor these conditions.

R.F. Goldstein J.

Released: December 2, 2015

CITATION: R. v. Chong, 2015 ONSC 7521

COURT FILE NO.: 14-3000002-0000

DATE: 20151202

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ADRIAN CHONG

REASONS FOR JUDGMENT ON SENTENCE

R.F. Goldstein J.

R. v. Chong, 2015 ONSC 7521

Case Summary