COURT FILE NO.: 0063/19

DATE: 20191114

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

EVENS ITIL

Monica Gharabaway for the Crown

Daniel Paton for Evens Itil

HEARD: September 12, October 15 and November 14, 2019

Reasons for Sentence

MacDonnell, J

[1] On September 12, 2019 Evens Itil appeared before this court and pleaded guilty to four counts of robbing convenience stores and two counts of failing to comply with a probation order. The robberies occurred on four separate evenings in a nine-day period between January 8 and January 17, 2018. Each involved a different convenience store.

A. The Offences

[2] Shortly after 9 p.m. on January 8, 2018, the defendant entered the Bargain Bucks convenience store. As he entered, he picked up a large snow shovel, brandished it over his head, and demanded money from the woman in charge of the store, Ms. Zheng. He rushed behind the counter and grabbed some lottery tickets. He was chased out of the store by Ms. Zheng’s husband, who had been in the basement area.

[3] Less than 24 hours later, at approximately 7:15 p.m. on January 9, the defendant entered the Stop N Go Mart. He produced a 6 to 7-inch knife and placed it against the side of the stomach of the lone cashier, Mr. Patel, and demanded his wallet. Mr. Patel complied with the demand. His wallet contained $300 cash as well as a number of credit and debit cards and pieces of identification. When the wallet was found by the police just over a week later the cash was gone but the cards and identification were recovered.

[4] One week later, on January 16, 2018, the defendant entered the Birchcliff Convenience store, approached the cashier, who was working alone, produced a knife with a 5-inch blade, and demanded money. He took approximately $100 from underneath the cash register and $280 worth of lottery tickets and fled.

[5] The fourth robbery occurred the next day, January 17, just before 6 p.m., at a Scarborough Hasty Market. Once again, the cashier was working alone in the store. The defendant came in, yelled at her to put her hands up, brandished a knife and demanded that she open the till. He took cash from the till and left. Less than an hour later, the defendant was arrested by the police at the apartment building where he had been staying.

[6] At the time of the commission of the robberies, the defendant was bound by the terms of three separate probation orders. Two of those orders, including one made by Justice Hall of the Ontario Court of Justice on April 19, 2016, contained a term prohibiting him from being in possession of any weapons. When he committed the robberies on January 16 and 17, while armed with a knife, he was in violation of the order made by Justice Hall.

B. The Offender

[7] At the time of the offences the defendant was 24 years of age. He is now 26. He was born in Haiti, in circumstances of extreme poverty, one of eight children. When he was four years of age, the family moved to Florida. He struggled in school in Florida. He came to Canada with his family when he was 15 years of age. After arriving in this country he was diagnosed with ADHD and he was placed in a special needs program at school. He continued to do poorly and dropped out of school entirely when he was in Grade 11. By that point his use of cannabis, alcohol and other substances had taken over his life, his family had kicked him out of the house, signs of mental illness had begun to appear, and since then he has essentially been homeless.

[8] Subsequent to his arrest in relation to the matters before the court, a psychiatric assessment was ordered at the request of the defence to consider whether the defendant was criminally responsible for the conduct underlying the offences. That assessment was conducted by Dr. Mishra, a Staff Psychiatrist at the Waypoint Centre for Mental Health Care in Penetanguishene. In the end, Dr. Mishra’s opinion did not support a defence of not criminally responsible, and the defendant does not seek to advance that defence in these proceeding. The parties agreed, however, that Dr. Mishra’s report should be filed as it contains a great deal of information with respect to the defendant’s undoubted mental health issues.

[9] In his report, Dr. Mishra stated: “Based on my interviews with Mr. Itil and a thorough evaluation of the collateral information gathered and provided to staff members at our facility, I am of the opinion that he suffers from Schizophrenia, Antisocial Personality Disorder, Cannabis Use Disorder, Stimulant Use Disorder, Alcohol Use Disorder and Attention Deficit Hyperactivity Disorder.”

[10] With respect to the diagnosis of Schizophrenia, Dr. Mishra stated that the defendant has suffered from psychotic symptoms since 2010, in the context of substance use. He has had multiple admissions to hospital with suspected substance-induced psychotic disorder. Through the course of his illness, he was noted to display active psychotic symptoms, such as paranoid delusions, auditory hallucinations, disorganization, aggression, incoherence, and inappropriate and bizarre behavior. He has been placed on a long-acting antipsychotic medication, which has provided some benefit. Dr. Mishra noted, however, that although the defendant continued to have low-intensity psychotic symptoms, especially auditory hallucinations, they did not interfere with his ability to function on a daily basis when he was free from substances. Dr. Mishra noted further that the defendant’s compliance with the medication regime that was prescribed for him has been inconsistent, and “there had been an overall decline in his psychosocial and interpersonal functioning over the years”.

[11] In support of his diagnosis of Antisocial Personality Disorder, Dr. Mishra noted that the defendant “had displayed a pervasive pattern of disregard for and violated the rights of others, starting around the age of 8 or 9 years.” He has engaged in repeated criminal acts and he has “displayed impulsivity and failure to plan ahead by engaging in many of [those acts] for immediate gratification without regard for their consequences.”

[12] With respect to the stimulant, cannabis and alcohol use disorders, Dr. Mishra noted that the defendant’s use of cocaine, crystal methamphetamine and cannabis tended to aggravate his psychotic symptoms and that he has also had a problem with alcohol.

[13] Perhaps not surprisingly, given that background, the defendant has accumulated a fairly extensive criminal record:

(i) In June 2011, as a young person, he was convicted under the YCJA of four counts of robbery, disguise with intent, and failing to comply with a recognizance. After 172 days of pre-sentence custody he received a custodial disposition of 180 days.

(ii) In June 2012, he was convicted in adult court of failure to comply with a recognizance, failure to comply with the YCJA sentence, possession of a Schedule II substance, possession of a weapon, and assault with intent to resist arrest. The effective custodial sentence for this collection of offences was 30 days.

(iii) In April 2016, he was convicted of assault with a weapon, theft under and failure to comply with the YCJA sentence. Sentence was suspended, and he was placed on probation.

(iv) In November 2016, he was convicted of theft under, failing to comply with probation and mischief. He received an effective custodial sentence of 30 days and was again placed on probation.

(v) In May, 2017, he was convicted of theft under, assault with a weapon and failure to comply with probation. He had served 60 days of presentence custody. Sentence was suspended and he was placed on another probation order.

(vi) On November 17, 2017, he was convicted of theft under and uttering threats. He had served 30 days of presentence custody. Once again sentence was suspended and a probation order was made.

[14] Those last convictions were registered less than two months prior to the robberies before the court. In the interval, in December 2017, the defendant had been brought to the hospital four separate times by the police due to his mental health issues. His last discharge from hospital was ten days before the first robbery. In those 10 days he had been sleeping in stairwells in the building where he was ultimately arrested. He was staying there because that is the building in which his drug dealer resided.

[15] With respect to the question of whether the defendant was criminally responsible for the conduct underlying the robberies, Dr. Mishra summarized his opinion as follows:

[The defendant] may have suffered from some psychotic symptoms that would have been exacerbated by his substance use, in spite of treatment with long-acting antipsychotic medication. The substance intoxication may have made him impulsive as had been evident on many past occasions. However, he was aware of the negative effect of substance intoxication on his mental state, and continued to use them. In addition, his offences were driven by his motive for financial gain and involved some planning and forethought prior to and after their commission. He had engaged in similar criminal behavior on multiple occasions in the past for material gain… From the available information, and by his self-report, he was not suffering from symptoms of a mental disorder of such severity, at the material times, so as to rob him of the ability to appreciate the nature and quality of his actions or over-ride his judgment to distinguish right from wrong.”

C. The Defendant’s Pre-Sentence Custody

[16] The defendant has been in custody on the matters before the court since his arrest on January 17, 2018, a period just short of 22 months.

D. Victim Impact

[17] Victim Impact Statements were filed from Ms. Zheng, the victim of the January 8 robbery, and Mr. Patel, the victim of the January 9 robbery. Both statements are brief, but both make clear that the offences have made those victims concerned about their safety.

E. The Defendant’s Allocution

[18] Pursuant to s. 726 of the Criminal Code, the defendant was asked if he wished to say anything before I determined the appropriate sentence. He declined that opportunity.

F. The Positions of the Parties

[19] On behalf of the Crown, Ms. Gharabaway submitted that the appropriate global sentence for the six offences to which the defendant has pleaded guilty is a term of imprisonment of between 3½ and 4 years (42 to 48 months). She agreed that that the defendant should receive a credit of 33 months for his 22 months of presentence custody. She also does not oppose an additional “Duncan” credit of 2 months to reflect the more than 100 days on which the defendant was subject to lockdowns at the Toronto South Detention Centre, where the defendant spent 20 of the 22 months of presentence custody. Virtually every one of the lockdowns was due to staff shortages. If the range of sentence proposed by the Crown were accepted, the resulting sentence would be a term of imprisonment of between 7 and 13 months.

[20] On behalf of the defendant, Mr. Paton submitted that in light of the 35 months of credit that the Crown concedes that the defendant should receive for presentence custody, the appropriate sentence is one of time served.

G. Discussion

[21] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The Criminal Code directs judges to attempt to achieve those goals by imposing "just sanctions" that have one or more of six objectives. Those objectives include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarly tempted, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender. Whatever sanction is imposed "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In determining the sanction required in the particular circumstances of a case, a judge must take into consideration "any aggravating or mitigating circumstances relating to the offence or the offender". Further, a judge must bear in mind that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances", that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances", and that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders ..."[^1]

[22] The objectives of sentencing that judges are required to consider sometimes point in different directions. Which objectives will predominate will be a case-specific determination. In a case such as this however, involving the robbery of four convenience stores while armed with a weapon, the objectives of denunciation and deterrence will almost always be paramount. In R. v. Brown and Gidman, [1982] O.J. No. 74 (C.A.), Chief Justice Howland stated at paragraph 8:

Armed robbery of a neighbourhood convenience store is an extremely serious offence, and one which is of great concern to the community. The merchants who are operating these stores on a basis of long hours require protection. General deterrence was the governing principle in sentencing with respect to these offences, and substantial custodial sentences were required.

[23] As I have said, in determining the sanction required in the particular circumstances of a case, a judge must take into consideration "any aggravating or mitigating circumstances relating to the offence or the offender". There are several aggravating circumstances that must be considered in this case including the following:

(i) there were four separate robberies of four different convenience stores;

(ii) in each case, the person in charge of the store was alone at the time of the robbery;

(iii) in each case, the defendant brandished a weapon and in three cases the weapon was a knife;

(iv) in one case, the defendant pressed the knife against the body of the victim in the course of the robbery;

(v) all four robberies were committed less than two months after the defendant had been placed on probation for theft and uttering threats;

(vi) the defendant has demonstrated either an unwillingness or an inability to comply with court orders;

(vii) the defendant has a prior criminal record consisting of 16 convictions as an adult and 6 as a young person;

(viii) the defendant’s prior convictions as a young person include four convictions for robbery;

(ix) the offences have left two of the victims with lingering fears for their safety and security.

[24] There are also circumstances to be taken into account in mitigation:

(i) the defendant has pleaded guilty to the six offences before the court, albeit after a preliminary inquiry at which the victims were required to testify;

(ii) the longest period of imprisonment to which the defendant has been sentenced as an adult, taking into account presentence custody, has been 60 days;

(iii) the robberies were unsophisticated. There was no attempt by the defendant to disguise himself. The fruits of the robberies were fairly meagre;

(iv) the robberies were committed at a time when the defendant was homeless, struggling with substance addiction and dealing with mental illness;

(v) apart from the one instance of pressing a knife against the body of one victim, there was no physical contact between the defendant and the victims.

[25] As it is in many cases, the court in this case is faced with the vexing question of the extent to which the defendant’s mental illness should be regarded as a mitigating circumstance. In R. v. Haly, 2012 ONSC 2302, I stated, at paragraph 34 of my reasons:

No doubt, mental illness falling short of a defence under s. 16 of the Criminal Code may lessen the moral blameworthiness of an offender and in that manner it may mitigate sentence, but whether it will do so will depend on all of the circumstances. Generally speaking, "for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is, the illness is an underlying reason for his aberrant conduct": R. v. Prioriello, 2012 ONCA 63, [2012] O.J. No. 650 (C.A.), at paragraph 11; R. v. Shahnawaz (2000), 149 C.C.C. (3d) 97 (Ont. C.A.). Even where a link is established, if the offender's mental illness makes him or her a continuing danger "[the illness] is not necessarily a reason to reduce what would otherwise be an appropriate sentence": R. v. Corpus, [2000] O.J. No. 549 (C.A.) at paragraph 8; see also R. v. Worth (1995), 98 C.C.C. (3d) 133 (Ont. C.A.).

[26] Counsel for the defendant has referred to the decisions of the Newfoundland Court of Appeal in R. v. Peters, 2000 NFCA 55; and the Ontario Court of Appeal in R. v. Wallace, [1973] O.J. No. 201. In both of those cases it was held that the offender’s mental illness was a mitigating circumstance on sentencing. I do not consider either of those cases to say anything that is inconsistent with what I said in Haly. In both of those cases, the courts were satisfied that there was a causal link between the offender’s mental illness and the offences.

[27] The fact that the defendant suffers from schizophrenia is a relevant feature of the person who is to be sentenced. It is relevant, for example, to the impact that a sentence of incarceration will have on him. But it is not a circumstance that mitigates the gravity of his conduct in carrying out these robberies or the extent of his moral culpability. Not only is there nothing to indicate a causal link between his schizophrenia and his decision, on four separate occasions, to commit a robbery of a convenience store, the opinion of Dr. Mishra, points in the opposite direction. In his report, he stated: “The substance intoxication may have made him impulsive as had been evident on many past occasions. However, he was aware of the negative effect of substance intoxication on his mental state, and continued to use them. In addition, his offences were driven by his motive for financial gain and involved some planning and forethought prior to and after their commission. He had engaged in similar criminal behavior on multiple occasions in the past for material gain…”

[28] In an effort to assist the court in deciding on a sentence that would be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, the parties have referred to a number of sentencing precedents. The Crown cited R. v. Boyle, [1985] O.J. No. 33 (C.A.); R. v. Dusanjh, 2016 ONSC 4317; R. v. Murchison, 2013 ONSC 1943; R. v. Escott, [2014] O.J. No. 5596 (O.C.J.); R. v. W.T.K., 2012 ONCJ 228; and R. v. Grant, 2014 ABPC 128. All of those cases involved robberies of convenience stores or similar establishments. The sentences imposed in those cases ranged from 3¼ to 8 years. The sentence in each case depended on the unique set of facts that each presented pertaining to both the robberies and to the offender. I do not propose to go through each of them to point out which circumstances are analogous to the present case and which are not. It will suffice to say that, in general terms, those cases are not inconsistent with the Crown’s submission that the range of sentence to be considered for the defendant is 3½ to 4 years.

[29] The defence has referred to R. v. Peters, supra; R. v. Wallace, supra; R. v. Blanchard, [1995] O.J. No. 4637 (Gen. Div.); R. v. C.N., [2017] O.J. No. 4124 (O.C.J.); R. v. Lagimodiere, 2008 MBCA 137; and R. v. Rousseau, 2016 BCSC 1593. The sentences in those cases ranged from two years less a day to four years. Once again, I do not propose to go through each of those cases to point out in which ways they are similar or different from the case at bar. I have already noted that in both Peters and Wallace there was a causal link between the offender’s mental illness and his offences. In Blanchard, where a sentence of two years less a day was imposed, the robberies were more serious, but the offender had since made a remarkable turnaround in her life. The other three cases – C.N., Lagimodiere and Rousseau – do have features that make them useful as comparators to the case at bar. They might be said to suggest that the bottom end of the range to be considered is lower than the 3½ years suggested by the Crown here.

[30] After anxious consideration of all of the foregoing matters, I conclude that but for presentence custody a sentence of imprisonment of 40 months would have been required to properly give effect to the paramount objectives of denunciation and deterrence. Persons who work alone, late at night in convenience stores or similar establishments are extremely vulnerable to the kind of frightening and potentially life-threatening behavior that occurred four separate times in this case. It is difficult to imagine that it was a coincidence that the victims were alone, with no one around, when the defendant made his move.

[31] The parties agree that the defendant is entitled to a credit of 33 months to reflect the 22 months that he has been in custody since his arrest, and a further credit of 2 months to reflect the more than one hundred days on which he was subject to either a partial or a full lockdown due almost exclusively to staff shortages. That leaves a sentence of five months to be served, and that is the sentence that I now impose.

[32] Robbery is included within paragraph (a) of the definition of “primary designated offence” in s. 487.04 of the Criminal Code, and thus a DNA order under s. 487.051(1) is mandatory.

[33] All four robberies committed by the defendant are offences punishable by imprisonment for ten years or more and in each of them violence against the victim was threatened and accordingly a prohibition order under s. 109 is mandatory. The defendant has previously been convicted of robbery, and accordingly the order is for life.

MacDonnell, J

Released: November 14, 2019

[^1]: See ss 718, 718.1 and 718.2 of the Criminal Code.