Court File and Parties

COURT FILE NO.: 1/2018 DATE: 20181025

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Aljome Superales Defendant

COUNSEL: M. Czerkawski, for the Crown J. Prosser, for the Defendant

HEARD: March 8, August 2, September 7, and October 5, 2018

ASTON J.

[1] Aljome Superales pleaded guilty to three Criminal Code offences: robbery with an offensive weapon, having his face masked while doing so, and using an imitation firearm in the commission of the offence contrary to ss. 343(d), 351(2), and 85(2)(a) of the Code. He is before the court today for sentencing.

[2] Mr. Superales challenges the constitutional validity of the mandatory minimum sentence in s.85 of the Code. Defence counsel submits that having regard to enhanced credit for 25 days pretrial detention and some additional credit for the strict bail conditions, the sentence should be for “time served”; or alternatively for less than 90 days incarceration, to be served intermittently on weekends.

[3] Crown counsel resists the constitutional challenge and submits that an appropriate sentence is two years in a federal institution or two years less a day in a provincial institution.

[4] Both sides do agree that Mr. Superales is entitled to 38 days credit for the 25 days he spent in custody before his release on bail. I agree that enhanced credit of 38 days is appropriate.

The Facts

[5] On December 24, 2016 at 6:23 in the morning, Mr. Superales entered a Petro Canada gas station on Wellington Street South, London, wearing a dark hooded sweatshirt, black pants and a black shirt tied around his head to cover his face. He produced an imitation handgun and pointed it at the cashier, Amanjot Singh, demanding money from the register. Mr. Singh opened the register. Superales grabbed the bills inside, totalling $75, before fleeing on foot.

[6] Mr. Singh called the police and within a few short minutes PC Romero arrested Mr. Superales. As he began to handcuff him, Mr. Superales said “Can I tell you something sir? I admit it.” Through search incident to arrest, PC Romero recovered the $75. He asked Superales about the location of the gun and Mr. Superales led him to a garbage can down the road where a black plastic replica handgun and black long-sleeved shirt were located.

[7] Mr. Superales was taken to London Police Services headquarters where he provided a detailed statement in which he accepted full responsibility for the offence. He said he was trying to get money so that he could buy Christmas gifts for his family. During the course of his interview he stated, “I don’t know why I am here in the world. It’s like I really shouldn’t be here”. When asked about the gas station employee, he volunteered that he felt bad for that person, that he imagined that the clerk was scared and that he would like to apologize to him.

[8] Mr. Superales was detained in custody until January 17, 2017, a period of 25 days, before his release at a contested show cause hearing.

Applicable Sentencing Provisions

[9] As part of the sentencing, Mr. Superales brings an application under s. 12 of the Canadian Charter of Rights and Freedoms challenging the constitutionality of the minimum sentence provision in s. 85 of the Code.

[10] Section 85(2) of the Code provides that “every person commits an offence who uses an imitation firearm…while committing an indictable offence…whether or not the person causes or means to cause bodily harm to any person as a result of using the imitation firearm.”

[11] Section 85(3)(a) provides that upon a conviction under s. 85(2) the person is liable, “in the case of a first offence…to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of one year”.

[12] Section 85(4) provides that the sentence imposed for an offence under s. 85(2), “shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events”.

[13] Sections 85(3)(a) and 85(4) taken together mandate that Mr. Superales must receive, at minimum, a one-year term of imprisonment consecutive to any sentence imposed on him for the other two offences.

[14] Section 12 of the Charter states, “everyone has the right not to be subjected to any cruel and unusual treatment or punishment”. Assessing whether a mandatory minimum sentence constitutes cruel and unusual punishment requires a court to determine: first, the proportionate sentence for the offences before the court, considering the objectives and principles of sentencing set out in the Code; and second, whether the mandatory minimum “requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence”. If it does, the mandatory minimum is inconsistent with s. 12 and can only be saved if the Crown is able to justify it under s. 1 of the Charter.

[15] The framework and legal test for infringement of s. 12 of the Charter is set out in more detail at paras. 39-46 of R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 which read, in part, as follows:

[40] In determining an appropriate sentence for purposes of the comparison demanded by this analysis, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, which instructs the sentencing judge as follows:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[41] The sentencing judge must also have regard to the following: any aggravating and mitigating factors…the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh…and the principle that courts should exercise restraint in imposing imprisonment.

[42] In reconciling these different goals, the fundamental principle of sentencing is that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[44] Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing.

[45] General deterrence — using sentencing to send a message to discourage others from offending — is relevant…but…a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending.

[46] To recap, a challenge to a mandatory minimum sentencing provision on the ground it constitutes cruel and unusual punishment under s. 12 of the Charter involves two steps. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. Then, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the mandatory minimum provision is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter.

[16] R. v. Nur also addresses the issue of when the infringement of s. 12 can be justified under s. 1 of the Charter. See paras. 111-118 of that decision.

Step One: The Proportionate Sentence in this Case

[17] What then is the proportionate sentence for the offences in this case, having regard to the objectives and principles of sentencing in s.718 of the Code –the first step in the Nur analytic framework?

[18] The starting point is to recognize that any robbery that involves the use of a weapon or an imitation weapon is a very serious offence. A robbery offence, under s. 343(d) of the Code carries with it a potential maximum of life imprisonment. It is always a serious offence regardless of any other considerations.

[19] Next comes a consideration of the particular offences before the court, including the moral culpability of the offender and any aggravating or mitigating factors.

[20] To consider the objectives and principles of sentencing set out in the Code, I must first address some additional facts relating to the commission of the offences and the moral culpability of Mr. Superales.

[21] In the days or weeks leading up to Christmas 2016, Mr. Superales testified that he felt “bad and sad” because, as a consequence of his layoff from employment, he was not able to send money to his grandmother in the Philippines and had no money for Christmas gifts for his three younger siblings.

[22] Shortly before the offences, Mr. Superales’ mother, step-father and three siblings travelled to the Philippines for a family visit over Christmas, leaving Mr. Superales alone in the family home. He was angry and upset at being left behind. He met up with two friends in London on December 23 but their plans to travel to Toronto did not pan out. Mr. Superales thought he could have borrowed some money from a relative in Toronto. Instead he began to think about other ways to get money. He believes he began thinking about robbing the gas station about two or three hours before actually doing so.

[23] Mr. Superales admits that he painted the replica gun black in Tillsonburg before coming to London, but denies that he had any intention at that time of using it to rob anyone. He explained he had had a disagreement with one of the friends he was to meet in London, Abdallah El Salam, and planned to “prank him” with the gun. He says he painted the gun to better fool his friend. I believe his evidence on this point.

[24] Mr. Superales was born in July 1995 in the Philippines. He was 21 years old at the time of the offences. Because of his mother’s employment outside of the Philippines, he was largely raised by his maternal grandmother. He has never met his father. At the age of 16, he moved to Canada to live with his mother, who had married a Mr. Myer. They have three children. Since moving to Canada, Mr. Superales has become close to his half-siblings and to his mother, but his relationship with Mr. Myer has been difficult.

[25] Prior to the offences, Mr. Superales was attending counselling sessions with a Pastor Jeff Butt at a Baptist church in Tillsonburg every other Wednesday. These sessions were aimed at helping him deal with ongoing tensions and conflict with Mr. Myer. He had no diagnosed mental health issue at that time.

[26] After coming to Canada, Mr. Superales completed grade 12 at a high school in London, receiving special assistance in learning English. He has held a variety of jobs in Canada since 2011. His first job was detasseling corn at the age of 16 followed by employment in a greenhouse in 2012, then in the summer of 2013 with a company manufacturing floor panels. After that summer employment, he worked as a janitor at a Zehr’s grocery store in Tillsonburg from 2013 to 2014. Beginning in 2015 he worked at Fleetwood Industries, a manufacturer of Honda parts. As a result of a workplace injury to his hand, he was laid off from Fleetwood and unemployed for a period of time before the offences in December 2016.

[27] Subsequent to the robbery, on a referral from defence counsel, Mr. Superales was assessed by a psychologist, Dr. Laura Fazakas-DeHoog. Through a series of interviews with Mr. Superales, investigation of collateral sources and standard personality and psychological tests, Dr. Fazakas-DeHoog concluded that Mr. Superales meets the diagnostic criterion for Major Depressive Disorder. She also concludes that significant symptoms of depression had their onset in early December 2016 with more moderate symptoms dating back to when Mr. Superales was 10 or 11 years of age and his first suicidal ideation during high school. Her opinion that significant undiagnosed symptoms of clinical depression predate the offences is buttressed not only by the observations of other witnesses but by a spontaneous statement of Mr. Superales before he ever met Dr. Fazakas-DeHoog. During his police interview immediately after his arrest he stated: “I don’t know why I am here in the world. It’s like I really shouldn’t be here”.

[28] The aggravating factors in this case are not controversial:

• The robbery involved the use of an imitation firearm, considered an offensive weapon for the purposes of s. 343(d) of the Code.
• Even an imitation weapon creates a serious risk that a situation will escalate with much more serious consequences.
• Mr. Superales painted the replica handgun, making it look more realistic.
• Mr. Superales covered his face.
• He decided to commit the robbery after thinking about it for at least several hours. This was not a spontaneous act.
• Mr. Superales yelled at Mr. Singh and pointed the imitation firearm at him.
• Mr. Singh is considered a vulnerable victim as a gas bar employee, working alone in the early morning hours.
• There was no physical contact with Mr. Singh. Mr. Singh was not injured. There is no victim impact statement. However, it is obvious Mr. Singh would have been shocked by the sudden appearance of a masked robber brandishing a weapon. I do not doubt that he was very fearful and anxious during the brief encounter with Mr. Superales and for some time thereafter.

[29] There are a number of mitigating circumstances. Most important are the steps taken by Mr. Superales to accept responsibility for his actions and his efforts towards rehabilitation.

[30] Following his release in January 2017, Mr. Superales was able to find fulltime employment with a company called Future Transfer – first as a casual general labourer and then as a fulltime warehouseman. His manager, Mr. Holden, describes Mr. Superales as one of his most reliable employees and a person who goes out of his way to help his work colleagues above and beyond his work duties. Mr. Holden expresses his confidence that Mr. Superales will continue to be a productive member of society, a person of good character who, in his view, ought to have a second chance to prove his worth.

[31] Since January 2017, Mr. Superales has also sought support from various community resources. He began attending a men’s group at his church while continuing his ongoing counselling sessions bi-weekly with Pastor Butt, then with Pastor Barrett after Pastor Butt’s transfer. Both Pastors have written positive supporting letters for Mr. Superales, at Tabs 2 and 3 of Exhibit S-4.

[32] Mr. Superales regularly attends Kingdom of Man classes at the church focussed on family values and principles.

[33] Mr. Superales sought out advice from his family doctor, Dr. William George, in the fall of 2017. He sees him monthly regarding issues with depression, a diagnosis confirmed in the psychological assessment report filed in this case. Mr. Superales was prescribed Trintellix, which he takes daily. Dr. George reports that Mr. Superales has been stable on a combination of medication and counselling, confirmed by positive PHQ-9 test scores.

[34] As a follow-up to the recommendation from his church pastor, Mr. Superales has also began counselling sessions with a clinical social worker, Dayle Allen, every other Tuesday for support in dealing with his depression and other issues arising from his having to live in Mr. Myer’s home.

[35] Mr. Superales has joined a baseball team. He has developed friendships, as well as finding it helpful as a distraction from his feelings of depression.

[36] The evidence supports the following mitigating factors:

• Mr. Superales had undiagnosed and untreated mental and emotional health issues that contributed significantly in his decision to rob the gas bar.
• He immediately confessed to the arresting officer.
• He showed the arresting officer where to find the replica weapon and black shirt he had used to cover his face.
• A short time after that, in an interview at the police station, he chose not to follow the legal advice he had received about remaining silent and instead gave a full confession.
• In that same interview he indicated insight into the impact of his actions on Mr. Singh. Mr. Superales later wrote a letter of apology to Mr. Singh (Exhibit S-3) and expressed the hope he might someday have the chance to talk to him to “tell him about myself and ask for his forgiveness”. The apology letter is quite obviously written by him in his own words without any apparent coaching. His attempted explanation is not a denial of responsibility for his actions and his apology seems sincere.
• He is a young man who has never been in trouble with the law before these offences.
• Not only did he plead guilty, he has accepted responsibility for his actions, blaming no one but himself. In his final words to the court on examination-in-chief, Mr. Superales stated, “I have tried to understand why I feel depressed and why I did this. I am the one who made the choice. I am at fault. I am responsible. I can’t blame my step-father or Satan. I accept the blame for myself. I want to restore a relationship with my step-father and be a good person.”
• Dr. Fazakas-DeHoog reports that Mr. Superales does not have a history of any psychotic symptoms or psychotic disorders. The result of the personality testing indicates that Mr. Superales is “impulsive, uncomfortable, resentful and angry,” a constellation of feelings “typically associated with either perceived or actual rejection or difficulties in interpersonal relationships”. She noted in her report that Mr. Superales “endorses a positive attitude about the possibility of personal change, the value of therapy, and the importance of personal responsibility. In combination, these responses are good prognostic indicators for a positive outcome in treatment.” Dr. Fazakas-DeHoog testified that incarceration of Mr. Superales would have a “very negative effect on him”.
• Mr. Superales continues to see Dr. George regularly and has benefitted from his prescribed medication.
• Mr. Superales drinks occasionally. He does not use illicit drugs. The offences before the court have nothing to do with alcohol or drugs, either as an impairment of his judgment or as a motive for the crime.
• At Tab 4 of Exhibit S-3 is a letter from social worker Dayle Allan confirming that she started seeing Mr. Superales for counselling in October 2017 and on a regular and ongoing basis ever since. She confirms that he attends the bi-weekly appointments faithfully and that he did not ever minimize, excuse or blame the actions which led to his arrest on anyone but himself. Though Ms. Allan is not properly qualified to give the opinion evidence contained in her letter of September 6, 2018, she does corroborate the evidence of Mr. Superales on a number of points. She describes his “despair” at his family all making a trip to the Philippines at Christmas 2016 without taking him along. She corroborates his apparent “misery” in his relationship with his step-father. She corroborates his close relationship with his younger siblings, and his staunch commitment to his church and his faith.
• At Tab 7 of Exhibit S-3 is a letter from Mr. Superales’ mother in which she expresses the belief that the difficult relationship her son has with his step-father, her husband, caused her son great anxiety and depression which she sees as a primary cause of his acting out of character in committing the robbery.
• At Tabs 3 through 8 of Exhibit S-4 are letters of support and character references from Pastor Jeff Butt, Rev. Mark Barrett, a former employer Billy Martins and friends Nancy Estudillo, Eileen and William Spitzke, Sharon Pettman, and Ken Dearden. These six letters of support all consistently extoll the virtues of Mr. Superales, his sincere regret and attempts to become a good member of society. An underlying theme of those supporting letters is the degree to which Mr. Superales has matured and seemingly learned from a mistake. I have come to share their collective belief that it is highly unlikely Mr. Superales will ever commit another offence.
• Time spent under stringent bail conditions, particularly “house arrest”, must be taken into account as a mitigating factor. In R. v. Downes, 2006 ONCA 3957, 2006 CarswellOnt 778, the Ontario Court of Appeal recognized that some of the same considerations that justify credit for pretrial custody also apply to an offender who has spent a long time under house arrest. See para. 29 of that decision. The Court of Appeal analyzed the jurisprudence and the general principles then summed up its conclusion at para. 37 in these words:

37 In summary, credit for pre-trial bail conditions should be approached in the following manner:

• Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.
• As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.
• The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.
• The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
• The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.
• Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.

[37] In that case, the offender’s house arrest conditions were given “relatively little weight” because of the absence of any real evidence of the effect of those conditions on the offender. However, Mr. Downes was given five months’ credit for his eighteen months on bail under house arrest conditions. See also the more recent case of R. v. Dragos, 2012 ONCA 538, [2012] O.J. No. 3790 (C.A.) at paras. 71 and 84. Though there are cases in which pretrial bail conditions attract little, if any, weight, part of the pretrial period in this case qualifies as a mitigating circumstance. From January 2017 to March 2018, a period of 14 months, Mr. Superales was under house arrest and forced to reside with Mr. Myers. In his affidavit evidence and oral testimony, Mr. Superales expanded on the strained relationship he had with his step-father. He related specific incidents and spoke in general of his bottled up feelings of anger and depression. He says he “felt like a slave brought here from the Philippines to be used” in his step-father’s home.

[38] I accept the evidence that house arrest terms were quite difficult for Mr. Superales and exacerbated his mental health difficulties. On the other hand, the curfew conditions since March 2018 are not so onerous. Any consideration of mitigating circumstances for that latter period is more properly focussed on Mr. Superales’ compliance with the conditions and on his initiative in seeking out and following through on medical help and counselling in the community. He has taken advantage of his daytime freedom through those steps and through maintaining gainful employment. Though it is not necessary to connect the bail conditions of the first 14 months to a mathematical credit in the same fashion as credit for pretrial custody under s. 719 of the Code, it will help in understanding my reasoning in this case to say that I consider those first 14 months the equivalent of five months in custody.

Conclusion on Proportionate Sentence

[39] Ignoring for the moment the minimum sentence provisions in s. 85 of the Code, what is a fit and proportionate sentence – the first step in the Nur framework?

[40] The need for denunciation is obvious and important. General deterrence of others is also important. In this case, for reasons already given, there is no apparent need to deter Mr. Superales personally. His remorse is sincere. He has taken the initiative in addressing his mental health issues and in developing both the professional help and better self-awareness that will keep him out of trouble with the law. He blames no one but himself for his crime.

[41] The aggravating and mitigating factors, when balanced, point to the need for a custodial disposition but at the low end for these serious offences.

[42] Taking into account the objectives of sentencing in s. 718 of the Code, the aggravating and mitigating factors (including specifically a 5 month reduction for the time spent under stringent and difficult bail conditions, as already noted) and the overarching principle of proportionality, a sentence of five months incarceration is appropriate in this case. That would be a global sentence for all three offences because the sentences would run concurrently.

Is the Mandatory Minimum Penalty Grossly Disproportionate?

[43] The second step under the Nur framework asks whether the mandatory minimum requires the court to impose a sentence that is grossly disproportionate.

[44] As noted earlier, it is not just that s. 85(3) prescribes a minimum sentence of one year. Subsection 85(4) requires that the one-year sentence be consecutive to any other sentence for the related offences.

[45] Time spent in pretrial custody may be considered in determining any sentence, including a mandatory minimum. However, time spent out of custody, even on bail conditions amounting to strict house arrest, cannot be counted against a minimum sentence. See R. v. Panday, 2007 ONCA 598, [2007] 226 C.C.C. (3rd) 349 (C.A.).

[46] The words “grossly disproportionate” set the bar high. As Blair J.A. stated at para. 76 of R. v. Meszaros, 2013 ONCA 682, [2013] O.J. No. 5113 (C.A.):

76 For purposes of this appeal, I re-emphasize only the following. To violate s. 12, the punishment must be "grossly disproportionate", and "[t]he test for determining whether a sentence is disproportionately long is very properly stringent and demanding"…Cruel and unusual punishment has been characterized as punishment that is "so excessive as to outrage standards of decency" and to be considered by Canadians as "abhorrent and intolerable"... Moreover, it is a punishment that is more than excessive or demonstrably unfit in the circumstances; it must be "grossly" disproportionate. [citations omitted]

[47] The mandatory minimum in s. 85 has been unsuccessfully challenged in the past.

[48] In R. v. Stewart, 2010 BCCA 153, [2010] B.C.J. No. 528, the British Columbia Court of Appeal found that the mandatory minimum one-year consecutive sentence provision in s. 85 of the Code did not amount to a violation of s. 12 of the Charter. In that case, the offender invaded the sanctity of the complainant’s home with a real firearm and physically assaulted the complainant. The facts noted in para. 16 of that decision clearly distinguish it from this case.

[49] In R. v. Al-Isawi, [2017] B.C.J. No. 782, the British Columbia Court of Appeal rejected the offender’s challenge to the minimum sentence provisions in ss. 85(3)(a) and 85(4). It found that the provisions did not infringe s. 12 of the Charter either for the offender before the court, or any reasonably foreseeable hypothetical case, where the underlying offence is robbery. In that case, Al-Isawi was convicted of 10 pharmacy robberies and one attempted robbery using an imitation firearm. The Crown withdrew eight of the eleven counts of using an imitation firearm, so Al-Isawi’s seven-year sentence consisted of four years for the robberies and three additional years for the use of an imitation weapon. The court did not comment on whether a 15-year sentence (had the Crown not withdrawn eight of the s. 85(2) charges) would have amounted to a “grossly disproportionate” sentence. The court in that case also decided that it “makes no difference” in the Charter analysis whether the offender used an imitation weapon or a real loaded weapon. See para. 53.

[50] I respectfully disagree with that conclusion. It seems self-evident to me that there is a difference in the moral culpability of someone using a water pistol to commit a robbery and someone else using a loaded prohibited weapon. Whether an offender uses a real or imitation firearm does not make a difference to the degree of fear, alarm or trauma experienced by the victim. However, the potential for physical harm, even death, to a victim or some innocent bystander is radically different, a difference ignored by the wording of s. 85(3).

[51] Finally, I note that in the Al-Isawi case the offender conceded that his own personal Charter rights were not infringed after the Crown withdrew eight of the eleven imitation firearm charges he was facing. Mr. Al-Isawi only argued a Charter infringement based on reasonable hypothetical cases he put forward. The court rejected his hypotheticals as unreasonable. There is therefore much to distinguish that case from this one and it is not particularly helpful as a precedent.

[52] The mandatory minimum sentence in s. 85 points to a parliamentary focus on general deterrence. It emphasizes the seriousness of the offence and the need to denounce and deter the use of firearms, even imitation firearms, in the commission of offences.

[53] Although the gravity of the offences in this case warrant a custodial disposition, even for a youthful first offender, the more important statutory objectives in this particular case are individual deterrence and rehabilitation. See, for example the often quoted words in R. v. Priest, 1996 ONCA 1381, [1996] O.J. No. 3369 at para. 23:

23 Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.

[54] It will only be on a rare occasion that a court will find a sentence so grossly disproportionate that it violates s. 12 of the Charter. This is such a case.

[55] In this case, the combined effect of ss. 85(3) and (4) is to require this court to impose a minimum sentence of seventeen months rather than five, or even twelve. A one year sentence would be harsh and excessive. However, I would not necessarily consider it to meet the “grossly disproportionate” test. On the other hand, a sentence of seventeen months crosses that threshold. Such a sentence more than triples the sentence that is otherwise appropriate in this case. It would undermine and jeopardize the ongoing and apparently successful rehabilitative efforts of the offender. Preserving and fostering those efforts is not only in the best interests of Mr. Superales, it is in the best interests of the community. The additional consecutive sentence required by s. 85 of the Code is inconsistent with the fundamental principle of proportionality. It constitutes “cruel and unusual punishment” and would violate the s. 12 Charter rights of Mr. Superales.

[56] Because I have found a violation of Mr. Superales’ Charter rights, I need not address reasonable hypothetical alternatives. However, I do offer this comment. A reasonable hypothetical in this case would include an offender who did not paint the replica weapon and who committed the robbery on impulse or perhaps as a response to a dare.

[57] There is no evidence in this case regarding the s.1 saving provision of the Charter. There is therefore no basis upon which to conclude the Charter violation is justified.

[58] The court therefore declares that the mandatory minimum sentence provision set out in s. 85(3) is of no force and effect, pursuant to s. 52(1) of the Constitution Act, 1982.

[59] Mr. Superales, would you please stand.

[60] I have concluded that a fair and fit sentence is imprisonment for 5 months, less 38 days credit for your time in pretrial detention.

[61] I also direct that for 30 months you comply with the terms of a probation order. There are certain mandatory terms for every probation order: that you keep the peace and be of good behaviour; appear before the court when required to do so by the court; and notify the court or the probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change of employment or occupation. In addition, I impose the following terms and conditions: You are to report to a probation officer within 2 working days or as soon as practically possible and thereafter as directed by the probation officer and in the manner directed by the probation officer; you are not to leave Ontario without written permission of the probation officer; you are to comply with any direction from the probation officer respecting counselling or therapy.

[62] Pursuant to ss.487.04 and 487.05 of the Code you are to provide a DNA sample, a mandatory provision after a conviction for robbery.

[63] Pursuant to ss. 109(1) and (2) of the Code, you are subject to a mandatory 10-year ban, prohibiting possession of any firearm, ammunition or explosive.

[64] Finally, I direct that you pay the mandatory victim surcharge of $200, under s. 737 of the Code.

“Justice D. R. Aston” Justice D. R. Aston

Date: October 25, 2018

COURT FILE NO.: 1/2018 DATE: 20181025 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Aljome Superales REASONS FOR Decision Aston J. Released: October 25, 2018