Court File and Parties

Court File No.: 13-697 Superior Court of Justice

Her Majesty the Queen v. Jalani Daley

Reasons for Sentence

Before the Honourable Justice Durno on January 8, 2016, at Brampton, Ontario

Appearances: J. Sone, Counsel for the Crown C. Daniel, Counsel for Jalani Daley

Table of Contents

Reasons for Sentence Page 1.

Transcript Ordered: May 12, 2016 Transcript Completed: May 29, 2016 Ordering Party Notified: May 30, 2016

Reasons for Sentence

Durno J. (Orally):

Jalani Daley pled guilty to two counts of conspiracy to commit an indictable offence, robbery, and is to be sentenced today. Counsel agree on all aspects of the sentence with one exception. They agree that the sentence should be two and one half years reduced for pre-trial custody credit on a two for one basis given the offender was arrested before the amendment.

They agree on the corollary orders: DNA and s. 109.

They do not agree on the credit the offender should receive for his restrictive bail terms. The Crown says the credit should be in the area of six months. The offender says it should be between 12 and 14 months, effectively in the range of two months for each year on release.

I take it I have accurately set out the positons?

MR. SONE: Yes.

MS. DANIEL: Yes, Your Honour.

THE COURT: While the joint position on sentence is a very lenient sentence for these offences, I find that it is appropriate for the reasons that follow, including that he pled guilty before evidence was called on the trial, he was not alleged to have been involved in some of the other incidents that at least some of the co-accused are alleged to have committed, he was never the directing mind of the robbers, I understand none of the pre-trial motions related to him, he had no record and was only 21. The sentences would have been significantly different after a trial.

The Offences

On July 6, 2009, Rajender Gill, a truck driver, picked up a load of beer in Toronto, intending to drive it to the Molson Brewery in Montreal. The offender, Mohamed Farhan Mohamed Mashood, and a man known to this offender as “Big T” planned to rob Mr. Gill and followed him onto the Highway 401 in a car driven by Mashood. Gill left the 401, drove to the Service Ontario station in Quinte West and went to sleep at roughly 11:20 p.m.. Before going to sleep locked the doors to his tractor unit. He woke when a window was smashed.

Mr. Daley entered the tractor unit with a handkerchief over the lower half of his face. He was carrying what appeared to be a firearm and pointed it at Mr. Gill, who believed it was a real gun. Mr. Daley was aware that the plan included the use of an apparent firearm, but had not been aware that he was to be holding it. Just before the robbery the others pressured him to carry the apparent weapon and he agreed.

At least three men entered the tractor unit where Daley and another man tied Gill’s hands with a scarf and pushed him down on the bed in the sleeper compartment. Daley put the apparent firearm to Gill’s head, told him to roll over and close his eyes. Once lying on his stomach, he was covered with a blanket and Daley held the apparent firearm to his back. A third man drove Gill’s tractor trailer back onto the highway, travelled east to the next highway exit, turned around and took the 401 westbound.

While the truck was being driven, Daley and a second man held Gill in the sleeper compartment, one holding the top of his body while the other held the bottom. One went through Gill’s wallet, read out the address from his driver’s license and said that he knew where it was so “don’t be smart” to Gill.

They went to a location where the tractor was unloaded, after which Gill and his truck were driven to Toronto with Daley holding Gill in the sleeping compartment. Once in Toronto, Gill was told not to move or he would be shot in the leg. Daley was present when the statement was made, but I take it did not make it. Daley was picked up in a car driven by Mashood. Gill untied himself and walked to a McDonald’s across the street from where he was left. He was not injured physically. The load of stolen beer was valued at $29,260.

On July 21st, 2009, Gary Hughes was driving a truck with a container of chicken feet to Montreal from Mississauga. Daley and the same two persons as were involved in planning the first robbery, planned to rob Hughes. Mashood drove a car with Daley inside behind the truck as it went eastbound on the 401. Hughes went into the Quinte Mall in Bellville to sleep between 10:00 and 11:00 p.m.. He was awakened with a man standing over top of him in the sleeper compartment, telling him he was being robbed. The man was armed with what appeared to be a firearm that was pointed at Hughes, who believed it was a real gun.

While Mr. Daley knew the plan he was involved in formulating included the use of an apparent firearm, he did not enter the tractor unit, remaining outside in the car. Others bound Hughes’ hands and feet with tape and the microphone from the truck’s CB radio. A pillow was placed over his face and the apparent firearm pressed into his back.

Hughes and the truck were driven to a location where the trailer was disconnected. Hughes and the tractor were driven to Markham. Hughes released himself and sought help from a tow truck driver. He was not physically injured. The value of the property stolen was $23,000.

The Offender

Mr. Daley is 29 years old. He was born and raised in Toronto, primarily by his mother. His father has been living in the United States since the offender was two years old. He has a high school education, being one math credit short of his secondary school diploma, and has taken some college courses. In 2011 and 2012 he attended Centennial College for a personal support program. However, since he required a police clearance and had already been charged in relation to these offences, he was unable to complete the program. He had also missed parts of the course because of having to attend court.

He has been working as a contractor since August of 2015 doing lab installations. He works Monday to Friday, 7:00 a.m. to 3:00 p.m. and sometimes works Saturdays.

Mr. Daley has two children, ages three and four, with his former girlfriend and surety. Both children were born after he was charged and released on bail. On October 22nd, 2013, his former girlfriend and surety revoked her bail and the offender was re-incarcerated for 11 days. He told the probation officer that he has access to the children based on a “mutual understanding”, and that the children’s mother lets him see the children any time. While attending community college in 2013, he met Juliet Frimpong, his current girlfriend and surety on the second bail, along with his mother.

The offender told the probation officer that his choice of companions at age 22 and his trusting nature might have been possible factors that led to his involvement in these offences. He has severed his ties with his past associates.

The offender breached his house arrest bail term in April of 2011, by being out of the residence under circumstances when he was not allowed to be out. He received a conditional discharge and 10 hours of community supervision with 12 months probation. He complied with the order.

The probation officer who prepared the pre-sentence report concluded that he was a motivated and respectful person who actively participated in the preparation of the report by providing information.

The offender’s mother, Maxine Lewis, wrote of her efforts in raising Jalani, of his community work, how he has changed since being charged and that he is very motivated to become a better father for his children.

Deshan Lewis, the offender’s older brother, wrote how the offender has become more motivated in the past few years and of his determination to build a better life for his children.

In any sentence there are factors in aggravation as well as those in mitigation.

The Aggravating Factors

1. The offences are most serious with the use of an imitation firearm, a fact that would not have been known to the victims.
2. I can infer the victims would have been terrified by the conduct of the robbers without a Victim Impact Statement.
3. The offences were planned and deliberated upon, involving the coordinated efforts of several offenders.
4. The loss of property is aggravating.

The Mitigating Factors

1. Mr. Daley pled guilty, a public admission of guilt that is indicative of remorse and the potential for rehabilitation. While others continue on their trial, he has done all he can to bring finality to the proceedings.
2. He has no record so is to be sentenced as a young first offender. I believe the incidents started when he was 21, and also he was involved when he was 22 when the offences were committed. The sentence required to send a message to the community and to others who would be similarly tempted need not be as long as one for one who was more involved or a recidivist.
3. He has strong support in the community as reflected in the letters filed and the persons who have attended court to support him. There is a letter from Randell Adjei, the Founding Director of RISE, Reaching Intelligent Souls Everywhere, a creative platform for youth to express themselves in a positive way using the gift of both music and poetry. He wrote of his involvement with the offender over the past 9 years. He regards Mr. Daley as someone with a good heart and good intentions. Since the creation of RISE in March of 2012, the offender has been working with youth and volunteering his time and skills. The offender is a respected member of the community. He has done event coordinating and other volunteer needs. He also wrote that the offender was an incredible father. Nicole Green wrote that the offender has become a stellar example to younger youths in the community. She feels the offender’s children mean everything to him and have “curved him into a more responsible adult.”
4. He has two young children.
5. He has been gainfully employed since August of 2015, at AGI, an Orillia company. Martin Blais, the President of the company’s letter says he has worked as a labourer on multiple projects across Ontario. He is hard working, quick to learn and works well on a team. Ryan Richards of the same company wrote the offender is a great team player and works well with others.
6. He has taken steps while on pre-trial release to better his education and job position. While he is certainly to be commended for the steps he has taken and the contributions he has made while on release, it also shows that the bail terms have not been overly restrictive, and the same applies for the next mitigating consideration.
7. He has done significant community work, as shown in the Certificate of Appreciation for his contributions to the Malvern Community and the letters that I have referenced.
8. I find he is truly remorseful from the pre-sentence report and his sincere comments on the last date. I accept that he wants to become a person who can tell youths the dangers that lie ahead should they consider following the path of criminality. I hope he maintains that commitment.
9. There is a positive pre-sentence report.
10. He spent 23 days in custody after his arrest on November 25th, 2009, until he was released on December 17, 2009; and another 11 days in custody between October 22nd, 2013, and November 1st, 2013, when his first surety revoked his bail and before he was released with his mother again as a surety, but with his current girlfriend as his new surety on November 1.

Since he was charged before the Truth in Sentencing Act was enacted he will be credited with the pre-trial custody rate applicable at the time he was charged, two days for each day served for a total of 68 days. He will be credited with two and a half months.

The Credit for Restrictive Bail Terms

From the date of his arrest to today’s date is 6 years, 1 month and 20 days. Of that time, all but 34 days he has been on a judicial interim release order. So it is just over six years that he had spent on release.

The leading authority on this issue is the Court of Appeal judgment in R. v. Downes (2006), 2006 ONCA 3957, 79 O.R. (3d) 321 where for 18 months the offender was required to be in his residence at all times except when in the company of his surety. He was granted five months’ credit. As the Court of Appeal noted, he could not work, go to medical appointments, or attend worship services.

From Rosenberg J.A.’s comments in Downes and subsequent Court of Appeal judgments, and trial judgments, the following summary of the law can be derived:

1. Time spent under stringent bail conditions, especially house arrest, is a relevant mitigating factor and must be taken into account as a relevant mitigating circumstance. Downes, at paras. 33 and 37.
2. While a trial judge is not required to give any credit for restrictive bail terms (R. v. Ijam (2007), 2007 ONCA 597, 87 O.R. (3d) 81 at paras. 32 and 36) where no credit is given, the trial judge should explain why that was so: Downes, at para. 33; R. v. Siconolfi, 2015 ONCA 860. However, the failure to do so, is not automatically an error in principle. R. v. Dragos, 2012 ONCA 538.
3. Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence: Downes, at para. 29.
4. House arrest is a form of punishment, albeit of a different character than actual incarceration, yet he or she receives no credit towards parole eligibility for time spent on house arrest: Downes, at para. 29.
5. The impact of bail conditions cannot be assumed: Downes, at para. 28. However, there will be some restrictions from which inferences can be drawn and the impact is obvious, as was the case in Downes: R. v. Brown, 2015 ONSC 5425 at para. 70.
6. If an offender asks that pre-trial restrictive bail terms be considered, the offender should provide the judge with information as to the impact of the conditions. The onus is on the offender to establish those facts on a balance of probabilities pursuant to s. 724(3) of the Criminal Code: Downes, at para. 37. The offender must show the restrictions prejudiced or imposed a hardship on him or her: R. v. Ijam (2007), 2007 ONCA 597, 87 O.R. (3d) 81 (C.A.) at para. 27.
7. There is no formula that judges are required to apply: Downes, at para. 37. It is inappropriate to adopt a rigid formula because there can be such a wide variation in bail conditions and even house arrest conditions. In some cases, the terms may impinge very little on the offender’s liberty. Some may be allowed to work as usual, take care of their family obligations, and generally see little impact on their pre-bail way of life. For others, house arrest may be very difficult, with the accused essentially confined to a very small space, cut off from family and friends and unable to work: Downes, at para. 34. As is the case with any potential mitigating circumstances, there will be variations in its potential impact on the sentence, and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest: Downes, at para. 33.
8. Sentencing judges should adopt a flexible approach with the credit and manner in which it is taken into account as a mitigating factor, a matter for the judge: Downes, at para. 36. R. v. Dragos, 2012 ONCA 538.
9. Provided the trial judge addresses the issue, there is no error in declining to grant any credit for restrictive bail terms.

The starting point whether there should be credit, and if so for how long, is the wording of the restrictive clause or clauses. Here it was the same in both orders:

Remain in your residence at all times except for employment purposes, medical emergencies, court related matters, counsel matters or in the presence of your surety.

I turn next to the factors that impact on the credit to be given from the case law:

1. The length of time under house arrest: here, just over six years is a very, very long time. Longer than in most of the cases in which the issue has arisen. The duration is an important consideration in all of the authorities.
2. The stringency of the conditions: here, I would regard them as moderately stringent house arrest. It was a far cry from Downes, as this offender was permitted out at any time to do anything he wanted provided he was with his mother or his girlfriend at the time. He was also permitted to work. From the letters it would indicate that he has worked across Ontario since August, and while not specifically authorized under that order, he did go to school to advance his education. He was obviously also doing volunteer work.
3. The impact on the offender’s liberty: here, it is important to note the Court of Appeal’s direction that the offender should supply the judge with information on the impact. Here, I have no evidence but can rely on inferences in some aspects. The evidence in this area is somewhat akin to what is called on s. 11(b) applications in that what is required there is evidence of prejudice from the delay, not from being charged. Here, what is required is evidence or admissions by the Crown, or inferences to be drawn regarding the impact from the restrictive bail terms, not from being charged or some other reason. While I accept that a very significant factor in his not completing his course at college was having to attend court, that is not related to the restrictive bail terms. He would have to have attended court if he had been released on an Appearance Notice. However, I conclude that there has been some restrictions on the offender’s liberty for a very, very long period of time.
4. The offender’s ability to carry on normal relationships, employment and activity. We have already covered most of these areas. Here, since being released on bail, from the letters filed and submissions, the offender has had two children with his now former girlfriend, attended community college, done volunteer work, worked throughout Ontario, under either order he could spend as much time as he wanted anywhere he wished, provided he was with his then girlfriend and surety. Notwithstanding those observations, I can infer that given the significant period that there would be restrictions. I find that the moderately restrictive terms would have some impact on his day to day activities, but not to a significant degree that would justify a lengthy period of credit.
5. Whether there were breaches: here, there was one. That is a factor that detracts from the application for mitigation. However, I also have to bear in mind that it was one breach in six years.
6. Were there requests to the prosecutor for a consent variation of the release order, or applications to court to do so? Here, as I understand it, there were discussions, but the Crown understandably wanted something concrete in terms of employment. As I read the material, prior to the August employment, that might have been problematic in terms of the offender being able to put specific hours on it. It still remains a factor that while there were discussions, there was no application to the court.

While there is no mathematical formula because there are so many variables, the judgements in other cases can be of assistance, and I have considered the Crown’s cases including R. v. Brown where Fairburn J gave effectively 40 days for 2.5 years on a release that was “anything but stringent,” as well as the time in Downes, R. v. Auguas, 2015 ONSC 5732, where Campbell J gave 5 months credit for 34 months when that offender had to be within his residence at all times seven days a week unless he was in the immediate custody of one of his two sureties. He could not work in his profession as a nurse. That was followed by five months on a curfew bail.

I have also considered R. v. Thornton 2015 ONSC 5280 where two years was credited for three and a half years on bail, but that offender called evidence in regards to the impact on him from the term that he had to be with one of his sureties when away from his residence although he did work.

Finally, I have considered R. v. Ash 2015 ONSC 4536 where Forestell J granted 16 months credit for 4 and a half years on bail. While noting he could work, go to school, volunteer and socialize, Her Honour said that he was constrained in his ability to do those things, which no doubt contributed to the credit, although the specifics of the constraints are not stated.

Weighing all of these factors, I am not prepared to give the credit the offender seeks in the absence of evidence regarding hardships that cannot be inferred, but feel that something more than the Crown submits would be appropriate should be credited. He will be credited with 10 months.

The Sentence

The offender is sentenced to 17 and a half months in addition to 34 days pre-trial custody for which he is credited with 2 and a half months. The endorsement will also include that he was credited with 10 months for restrictive bail terms.

There will be a DNA order and the s. 109 orders.

I take it that will be concurrent on both counts?

MR. SONE: Yes, please, Your Honour.

MS. DANIEL: Yes, thank you.

THE COURT: I take it the Crown’s content the fine surcharge be waived given the date?

MR. SONE: Yes, Your Honour.

MS. DANIEL: Thank you.

THE COURT: For the reasons dictated, sentence concurrent on both counts, 17 and a half months in addition to two and a half months credit for 54 days pre-trial custody, and also taking into consideration 10 months credit for restrictive bail terms.

There will be a DNA order, which I have signed.

You are prohibited from having in your possession any firearm, crossbow, restricted weapon, ammunition, explosive substance for 10 years; and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.

The fine surcharge is waived.

Certificate of Transcript

Form 2 Certificate of Transcript Evidence Act, Subsection 5(2)

I, Ryan Easson, certify that this document is a true and accurate transcription of the recording of January 8, 2016, in, R. v. Daley in the Superior Court of Justice, held at 7755 Hurontario Street, Brampton, Ontario, taken from the Recording(s) 3199-211-20160108-082226-30-DURNOB which has been certified in Form 1.

(Date) (Ryan Easson)