R. v. Edusei, 2020 ONSC 7432

Court File and Parties

Court File No.: CR-19-50000678-0000 Date: 2020-12-09 Ontario Superior Court of Justice

B E T W E E N:

Her Majesty the Queen

• and -

Akwasi Edusei

Counsel: V. Nevin, for the Crown R. Fedorowicz, for Mr. Edusei

Heard: November 25, 2020

Reasons for Sentence

KELLY J.

1Mr. Akwasi Edusei pleaded guilty to one count of robbery simpliciter before me. He agreed that he robbed a marijuana dispensary on June 17, 2018 in the City of Toronto. He was in the company of two others when he did so. Two employees were in the dispensary at the time: Mr. Adam DeBoer and Ms. Nikki Kanateros.

2Mr. Edusei now appears before me for sentencing.

3Crown Counsel submits that the appropriate sentence is a global one of 3.5 years in custody, to be served concurrently with the sentence he is already serving. Mr. Edusei has approximately 18 months left to serve after having been convicted of two robberies and being sentenced in August 2020. The sentence proposed by Crown Counsel would require Mr. Edusei to go to the penitentiary to serve his sentence.

4Counsel for Mr. Edusei submits that the appropriate sentence is a global one of two years less one day. He also submits that the sentence should be served concurrently to the sentence Mr. Edusei is already serving. He submits that this sentence would permit Mr. Edusei to serve his sentence in the reformatory and be subject to probation.

5Both counsel agree that Mr. Edusei should be given some credit for pre-sentence custody due to the fact that he has been incarcerated during the pandemic. They also submit that there may be some consideration given as a result of the fact that he will continue to be incarcerated during the pandemic, resulting in a harsher climate in which to serve his sentence.

6Lastly, both counsel agree that the following ancillary orders should be imposed:

(i) an order pursuant to s. 487.05 of the Criminal Code that Mr. Edusei provide a sample of a bodily substance for the purpose of forensic DNA analysis and storage in the national DNA database; and

(ii) an order under s. 109 of the Criminal Code for life.

7After having considered the facts of the case, Mr. Edusei’s background, and the relevant legal principles, I find that the appropriate sentence is three years (36 months), less nine months of credit for a further sentence of 27 months to serve. This sentence will run concurrent to the sentence Mr. Edusei is currently serving.

8What follows are my reasons.

The Facts

9The facts giving rise to the plea and conviction formed part of an Agreed Statement of Facts (“ASF”). The ASF may be summarized as follows:

a. On Sunday, June 17, 2018 at approximately 9:20 p.m., a Toyota arrived outside Royal Highness Dispensary at 1820 Jane Street in the City of Toronto.

b. Mr. Edusei, together with two others (Mr. Sorie Conteh and an unknown suspect) exited the motor vehicle.

c. Mr. Conteh and the unknown suspect entered the dispensary. They paced around the dispensary while Mr. Edusei waited in the parking lot.

d. Shortly thereafter, Mr. Conteh opened the front door of the dispensary while talking on his phone. While he held the door open, Mr. Edusei ran into the dispensary holding what appeared to be a firearm in his right hand. He was wearing a black “True Religion” hoodie with the hood tied around his face and black “True Religion” sweatpants.

e. Mr. Edusei pointed, what appeared to be the firearm, at several of the patrons. While he did so, Mr. Conteh and the unknown suspect looted and stole marijuana product as well as money from behind the counter.

f. Eventually, the three perpetrators ran outside the store with the product and money. They got into the Toyota and left the scene.

g. The entire robbery and events outside the dispensary were captured on high definition surveillance video. Still photographs from the surveillance video were circulated by the Toronto Police Service Hold Up Squad (“TPS”). Mr. Edusei was identified by three officers.

h. Mr. Edusei was arrested on June 28, 2018. A search warrant executed on his home resulted in members of the TPS discovering and seizing clothing consistent with what was observed on the surveillance video.

i. At the time of his arrest for these offences, Mr. Edusei was on a recognizance for robbery and related charges. A condition of his recognizance required that he possess no weapons.

10These are the facts upon which Mr. Edusei is being sentenced. I will now turn to a consideration of Mr. Edusei’s background.

Personal Background

11Mr. Edusei’s background was provided to the Court in various documents and submissions of Counsel.

12A pre-sentence report dated September 21, 2016 was provided to the Court following his third finding of guilt. It provided as follows:

a. Mr. Edusei was born on November 14, 1999 in North York. He was the youngest of three siblings.

b. Mr. Edusei’s mother came to Canada in 1996. She met and married Mr. Edusei’s father. They separated in 2005, when Mr. Edusei was approximately six years of age.

c. The Children’s Aid Society was involved following one incident where it was alleged that Mr. Edusei was left in the care of his siblings while his mother worked the night shift. Mr. Edusei was six years of age at the time. He was sent to live with his father and spent one year in a “behavioral home” in Waterloo.

d. Mr. Edusei’s mother has been gainfully employed, working as a baker and then as a cook. His father, in 2016, was unemployed.

e. At age 10, Mr. Edusei moved to Ghana to live with his father. He remained there for four years, returning when he was 14 years of age. He lived with his mother upon his return to Toronto.

f. Mr. Edusei describes that he has a good relationship with both parents as well as an older sister who resides outside the family home.

g. Mr. Edusei attended nine schools while living in Toronto. Five of them were elementary schools and four were secondary schools. He was expelled, in high school, for bringing a knife to school. Various arrests impeded his ability to attend school for long periods of time.

h. From 2005 to 2014, Mr. Edusei was the subject of 17 suspensions and 28 Progressive Discipline Reports. Reasons for these reports included opposition to authority, uttering threats and possession of a weapon. He was described as physically aggressive, negative in the classroom, etc. In 2015, he was removed from the Roy McMurtry School for threatening a teacher’s children.

i. Various programs were tried to assist Mr. Edusei. He was subject to an Individualized Education Program in grade one. In grade 4 he was identified as having “Mild Intellectual Disability”. It was reported that Mr. Edusei was receiving intensive “Child and Youth Worker” support. Behaviour plans focused on “social skills and teaching him positive alternatives to challenging behaviors”. Between kindergarten and grade five, Mr. Edusei was provided with “modified work” and “various accommodations to support his learning abilities”.

j. Mr. Edusei has received numerous professional supports including, “Speech and Language Pathology Testing”, “Psychological Testing”, “Referral for Social Work Services” and “School Case Conferences”.

k. It appears that Mr. Edusei did meet with some success at the Roy McMurtry School in June 2016. His teachers noted that he was “progressing well and was able to work well in class”. He was described as “respectful and polite” as well as “active with class participation”.

l. Mr. Edusei has never had a job. That said, he indicated (in 2016) that he wished to secure employment.

m. Mr. Edusei states that he began a gang association at the age of 10. He was affiliated to a gang associated with his brother. Mr. Edusei, in 2016, acknowledged that he engaged with negative peers but that he has gone “down a different path” from his old friends.

n. Mr. Edusei’s mother attributes his involvement in the criminal justice system to his association with “negative peers”. She suggests that he is a “different person” when he is not around his friends.

o. Mr. Edusei started smoking marijuana at the age of 12. At age 14, he was using it multiple times a day. He had his first alcoholic beverage at age 13. He has also experimented with “molly” and “lean” (a combination of cough syrup and sprite). He says that he no longer uses marijuana (in 2016).

p. In 2016, Mr. Edusei reported that in his leisure time, he played basketball, attended at the mall, went to movies and searched for a job. He stated that he had been the victim of police harassment. He says that several times, he had been arrested without cause in an effort for the TPS to obtain information from him.

q. Mr. Edusei’s older brother was involved in a shooting in Toronto. Thereafter, he was deported to St. Vincent (where he was born). His brother was charged with being an accessory to murder. His cousin was convicted of the murder.

r. In 2016, Mr. Edusei identified his strengths as “being able to learn from his past” and “having the potential to be someone good”. He identified his area of need as “positive decision making”.

s. Mr. Edusei did not meet with any success when working with Mr. Philip Downer from the Intensive Support and Supervision Program in 2015. Mr. Downer described Mr. Edusei as “difficult to work with as he was not forthcoming with information and was disrespectful at times”.

t. In 2016, Mr. Edusei was referred to the “Breaking the Cycle Program”. He was described as “receptive and engaged”. Conversations concentrated on positive decision making, actions and consequences as well as healthy leadership strategies.

u. Mr. Edusei has worked with the psychometrist at the Roy McMurtry Youth Centre. He discussed anger management, problem solving and conflict resolution. He successfully completed “Road to Redemption” and “Tackling the Tough Skills” programs. He also completed sessions in “Stop New and Plan”. Mr. Edusei was described as “polite and respectful” when participating in these programs. He appeared receptive to the supports being offered.

v. During his period of incarceration in 2016, Mr. Edusei acknowledged that there were “ups and downs” but that he felt that he had shown a lot of progress. He stated that he had changed from the “old me” and recognized that he had to work on his conflict resolution skills and needs to learn when to “swallow his pride”. He had shown a maturity and a willingness to work on his areas of need.

w. In 2016, Mr. Edusei identified his goals for the future: obtaining his high school education, finding employment and attending post-secondary school for architecture. He stated that he needed to stay away from negative peers and is “reconsidering the places he goes”.

13A Young Person’s Progress Report dated March 11, 2016 was prepared after Mr. Edusei was sentenced to nine months in custody following a conviction for possession of a prohibited loaded weapon and possession of a weapon contrary to a court order. It provided as follows:

a. That since starting his sentence, he had shown improvement regarding his behaviour and compliance with expectations. He was participating, actively, in several support programs.

b. Mr. Edusei was involved in Breaking the Cycle, a gang exit strategy program. Ms. Brown felt that Mr. Edusei is “misunderstood and has the potential to be very successful when capitalizing on his strengths”. She believed that Mr. Edusei was “intelligent” and would benefit from a male role model in his life.

c. Mr. Edusei also began working with the Chaplain which proved to be beneficial in dealing with some of his issues. He was described by the Chaplain as “respectful”.

d. Although he faced some challenges on his unit, Mr. Edusei had made significant progress. He is better able to manage his emotions.

e. Ms. John (Mr. Edusei’s mother) described her son as “more polite”. She had noticed a lot of improvement in his behavior and could “see changes in him”.

f. The author of the report stated as follows:

Akwasi presents as being in the planning stage of change. He has been vocal about his needs to be successful and has become a more effective advocate for himself. Akwasi has been far more responsive to programming since his admittance to RMYC, including being open to receiving clinical supports and addressing his areas of need.

14In an undated letter from Ms. Valery Mendes of the Toronto District School Board, Ms. Mendes reported the following:

a. That Mr. Edusei had been in her section at Turning Point. She worked with him at age 15. She stated that, at that time, “Akwasi refused to do much work, and was often rude or offensive to both myself and his other teacher. He was constantly arguing and disruptive in class.”

b. At age 17, Ms. Mendes worked with Mr. Edusei again. She described him as “more mature but still defensive and rude”. That said, she noticed that Mr. Edusei met with academic success with positive comments on his reports.

c. Mr. Edusei met with success, particularly in art. Ms. Mendes was able to publish his painting along with other pieces of art he created. He found an outlet, producing six “stunning pieces” that were created during his own time.

d. Ms. Mendes reviewed Mr. Edusei’s background and reports. She found that he had participated in various assessments as early as Grade 1. She reported that the assessments are supposed to address the individual needs of students but believed that this worked against Mr. Edusei. She believes that they “either identified him incorrectly, leaving a stigma, or point to his behaviors without recognizing the possible causes for the behavior such as childhood trauma”. Because of this, Ms. Mendes believed that Mr. Edusei was “under stimulated” or treated as a “troublemaker”.

e. Ms. Mendes believes that she has “seen a fragile, somewhat childlike, smart, curious young man who loves to read, loves to do art, takes pride in his work, and enjoys the company of caring adults”. She describes that Mr. Edusei worked hard to have more positive relationships and resolve his conflicts without fighting. She believes that he learned to treat people well but continues to struggle with trust, communication and emotional regulation.

f. Ms. Mendes had believed that Mr. Edusei had, “truly transformed for the better” because of the “consistency, predictability, kindness, and focus on strengths, as well as the positive relationships he has experienced at Turning Point”. She believed that with certain supports in place (i.e., bonds with stable, reliable and caring adults as well as opportunities to keep reading and “expressing himself artistically”) that he could be a “successful and well-rounded adult”.

15Despite the hopes referred to in the reports provided, Mr. Edusei has committed 11 offences since 2016 (including this one). He has a criminal record that contains Youth Court convictions as follows:

Date	Offence	Sentence
April 24, 2015	Armed robbery.	60 days, together with 30 days under supervision in the community and probation for 2 years.
	Robbery.	As above, concurrent.
December 10, 2015	Assault.	Probation for 18 months.
	Fail to comply with sentence.	As above, concurrent.
	Fail to comply with recognizance.	As above, concurrent.
December 12, 2015	Robbery.	Probation for 18 months (90 days’ pre-sentence custody) and a discretionary weapons prohibition.
	Disguise with intent.	18 months’ probation.
	Fail to comply with recognizance.	As above, concurrent.
September 22, 2016	Possession of a loaded prohibited or restricted firearm.	4 months and 2 months under supervision (172 days pre-sentence custody) and a mandatory weapons prohibition.
	Possession of a firearm or ammunition contrary to a prohibition order.	4 months and 2 months under supervision and probation for 6 months.
July 6, 2017	Robbery.	96 days and 48 days under supervision (104 days of pre-sentence custody), probation for 12 months and a mandatory weapons prohibition.
	Disguise with intent.	96 days and 48 days under supervision (104 days of pre-sentence custody) and probation for 12 months.
	Fail to comply with sentence.	As above, concurrent.

16As an adult, Mr. Edusei has the following entries on his criminal record:

Date	Offence	Sentence
April 25, 2019	Robbery.	4 months, 20 days (pre-sentence custody of 2 months, 10 days) and probation for 18 months. Mandatory weapons prohibition.
October 10, 2019	Obstruct peace officer.	Conditional discharge and probation for 6 months.
August 14, 2020	Robbery.	299 days (431 days of pre-sentence custody).
	Disguise with intent.	6 months concurrent.
	Possession of property obtained by crime.	6 months concurrent.
	Disguise with intent.	116 days concurrent.
	Robbery.	730 days of pre-sentence custody.

17Mr. Edusei’s most recent entries in 2020 involved a robbery of two convenience stores on December 12 and 15, 2017. In sentencing Mr. Eudusei, P.J. Monahan J. analyzed Mr. Eudesei’s criminal history and said the following from paragraphs 17 to 32:¹

17. Although he is just 20 years old, Mr. Edusei has an extensive and extremely troubling criminal record.

18. His first offence occurred on August 14, 2014, when he was 14 years old. Mr. Edusei ordered a taxi under the name ‘Jamal’. When he reached his destination, he held a knife to the taxi driver’s neck. While waiting for the driver to hand over his cash, he cut a hole in the victim’s shirt. Mr. Edusei made off with $80. The incident was recorded on the taxi’s video surveillance system. Mr. Edusei was later apprehended, carrying the cell phone used to call the taxi in his pocket.

19. The very next day (i.e., August 15, 2014), Mr. Edusei and three other youths followed an 85-year-old victim into a park. Mr. Edusei showed the victim a firearm in his waistband and demanded money. He then searched the victim’s pockets, pushed him to the ground, kicked him and took his wallet. Mr. Edusei was apprehended close to the scene with the victim’s property.

20. On October 9, 2014, after being released on bail for the two aforementioned robberies, Mr. Edusei entered a convenience store located at 160 Chalkfarm Road with his face covered. He brandished a knife at the female employee and told her he would kill her if she did not comply with his demands. He stole cash from the register and made good his escape. He was identified through a fingerprint.

21. Mr. Edusei was again released on bail on October 27, 2014. Approximately one week later, on November 3, 2014, two young men entered the Meyers convenience store with their faces covered. (I note that this is the same store where Mr. Edusei and Mr. Brown cashed the stolen lottery tickets on December 12, 2017.) Mr. Edusei brandished a knife at the clerks and demanded money from the cash register.

22. On November 20, 2014 Mr. Edusei entered a convenience store located at 2202 Jane Street with his face covered. He brandished a knife at the clerk and came around the counter to the employee’s side. The clerk threw a number of objects at Mr. Edusei which caused him to flee. Video surveillance disclosed that Mr. Edusei was wearing the same clothing from the October 9, 2014 robbery where he had left his fingerprint, which resulted in his apprehension.

23. After committing these 5 robberies in the space of just over 4 months, Mr. Edusei was detained in custody. He came before Cole J. for sentencing on April 25, 2015. Justice Cole noted that these offenses were extremely serious and, if Mr. Edusei had been an adult, he would ‘no doubt have got a sentence of many years in jail’. After being given credit for pretrial custody equivalent to 255 days, Mr. Edusei was sentenced to a further 60 days in open custody, 30 days community supervision, and two years’ probation.

24. Following the completion of his sentence for these robberies, on September 18, 2015, Mr. Edusei assaulted a young man and attempted to grab his necklace. When the necklace fell to the ground, Mr. Edusei took it and ran away.

25. On April 4, 2016, Mr. Edusei was observed entering his apartment building with an object concealed in his waist area. Mr. Edusei was arrested following a foot pursuit and a loaded Remington sawed-off shotgun was seized from his waist.

26. Following his arrest on April 4, 2016, Mr. Edusei remained in custody until his sentencing on September 22, 2016. In the course of his sentencing, Mr. Edusei acknowledged that he had committed some serious crimes in the past and that he was remorseful for his actions. He indicated that at the time of these offenses, ‘I was younger, I did not have the knowledge that I have now.’ He told the Court that he had changed a lot and had more people guiding him so that he could make better decisions. Justice Cole credited Mr. Edusei with 8.5 months on account of his 172 days in pretrial custody and sentenced him to a further six months in custody, three months of community supervision and three years of probation.

27. Mr. Edusei was released on March 22, 2017. Two days later, Steve Medeiros was in the driveway of his residence performing repairs on his Volkswagen Jetta when he was approached by Mr. Edusei and Tavoy Brown. Both Mr. Edusei and Mr. Brown were wearing balaclavas. Mr. Brown pointed an imitation firearm at him and said, ‘I’ll shoot you.’ Mr. Edusei and Mr. Brown then stole Mr. Medeiros’ car. The victim’s cell phone was in the car and the police were able to use its GPS to locate and arrest Mr. Edusei and Mr. Brown. The victim and his wife apparently sold their home and moved out of Toronto as a result of the trauma they suffered.

28. At the July 6, 2017 sentencing for this incident, Mr. Edusei told the Court that he was sorry and that, ‘I am not only a hard worker, but also determined to change my life by continuing my education and finding a part-time job.’ Justice Stribopoulos, as he then was, issued a warning to Mr. Edusei that this was his last chance in the youth justice system. Justice Stribopoulos cautioned that ‘after November, when you turn 18, everything changes. You are an adult and there are no more kid gloves.’ Mr. Edusei was sentenced to 144 days in custody in addition to credit for pretrial custody equivalent to 156 days.

29. Mr. Edusei completed this sentence in late November 2017. Approximately two weeks later, he robbed the Lambton Avenue convenience store, followed three days later by the robbery of a Mac’s convenience store.

30. Following his release on bail for these two robberies, Mr. Edusei’s criminal activity has continued. On October 29, 2018, Jitin Wadhwa was in the underground parking garage of his building with his 12-year-old daughter. Mr. Edusei and Mr. Brown approached him and hit him with a metal pipe, stole his wallet and car keys and stole his car.

31. Mr. Edusei was arrested on December 6, 2018. After pleading guilty, he came before the Court for sentencing on April 25, 2019. Mr. Edusei once again told the Court that he was remorseful and would be changing his ways. He noted that having been incarcerated in an adult jail had given him time to sit down and reflect on his life and he was resolved to move forward and better himself. In imposing a sentence of seven months (the equivalent of time served since his arrest on December 6, 2018), Justice Speyer noted that if Mr. Edusei was ever back before the courts on similar charges, he would be looking at a penitentiary sentence. As Justice Speyer put it, “you will graduate right to the big house… That is where you are going if you do not stop what you have been doing.”

32. I note, for completeness, that Mr. Edusei has also been charged with robbery with a firearm and related charges in relation to his alleged involvement in the armed robbery of an illegal marijuana dispensary on June 17, 2018. Those charges are still before the courts.

(P.J. Monahan J. imposed a global sentence of four years less pre-sentence custody when sentencing Mr. Edusei in August 2020.)

18I will now turn to a consideration of the relevant legal principles.

The Law

19In determining an appropriate sentence for Mr. Edusei, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, which provides as follows:

718. The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community.

20The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in ss. 718.2(a)(i) to (vi); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).²

21Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime.³

22It has been submitted that Mr. Edusei’s sentence should be reduced because he will be serving his sentence during the COVID-19 pandemic (i.e., the pandemic should be considered a collateral consequence). In support of that position he relies on the principles set out in R. v. Hearns.⁴ At paras. 16, 20 and 22 in Hearns, Pomerance J. said the following regarding the fit sentence:

16 …Fitness looks, not only at the length of a sentence, but the conditions under which it is served. As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.

20 …The point to be taken is this: a sentence may be reduced where it is necessary to denounce state conduct, or where it is necessary to account for other punitive consequences, or where the sentence would have a more significant impact on an offender. In this case, the impact is not attributable to the characteristics of the offender, though in some cases there may be heightened vulnerability. The impact is attributable to the social conditions of the time, which are very different than those in the past. COVID-19 is not a mitigating factor in the classic sense. However, it adversely affects conditions of imprisonment, and increases health risks for those in jail. On that basis, it is an important part of the sentencing equation.

22 …The question is not whether, looking backwards, the offender is entitled to more credit. The question is whether, looking forward, the pandemic warrants reduction of the sentence yet to be served. [Emphasis added]

23I will now turn to a consideration of the fit sentence.

Analysis

a. Mitigating and Aggravating Factors

24In considering the fit sentence, I find the following to be the aggravating factors:

a. Mr. Edusei has an appalling criminal record. He has eight prior convictions for robbery, although several were committed when he was a Youth.

b. Despite having been incarcerated in the past and being warned that his sentences would continue to rise, he has not been deterred.

c. It is obvious from reading the record, that Mr. Edusei has indicated that he wants to modify his behavior. Despite such representations, Mr. Edusei is back before the court.

d. The record shows that many resources have been expended to assist Mr. Edusei in becoming a productive and pro-social member of our society. Despite this, he continues to commit criminal offences.

e. Mr. Edusei has little or no regard for court orders. This is obvious from the entries on his criminal record.

f. This robbery involved a marijuana dispensary at night. The employees in the dispensary were vulnerable.

g. While committing the robbery, Mr. Edusei brandished an item that had the appearance of a firearm. (That said, I am aware that Mr. Edusei has pleaded guilty to robbery simpliciter.)

h. No Victim Impact Statement was filed. However, the Court can infer the impact on the victims of the robbery was significant.

i. Mr. Edusei was subject to a prohibition order at the time he possessed the firearm.

j. Mr. Edusei was on a recognizance during this offence. Obviously, he was in breach of it.

25There are mitigating circumstances to consider in sentencing Mr. Edusei as well:

a. Mr. Edusei is youthful. He is only 21 years of age.

b. The Court acknowledges that Mr. Edusei has had a difficult upbringing, resulting in him attending numerous schools and living in various homes with his parents. Despite their efforts, Mr. Edusei did not have a positive role model in his life.

c. There was a plea of guilt. The plea resulted in a saving of resources in a post-Jordan era and in a COVID-19 era where judicial resources have been drastically reduced.

d. Despite wanting to be tried by a jury in July and again in December 2020 jury selection was not available due to the pandemic. Jury trials were suspended at both times. Mr. Edusei gave up his right to a jury trial.

e. The plea has resulted in a savings of two weeks of valuable court time.

f. Mr. Edusei has shown remorse by pleading guilty.

g. Mr. Edusei expressed remorse at the time of the sentencing hearing.

h. The plea provided certainty of result. The witnesses did not have to testify.

i. Counsel referred to a letter from the Hope Program which provides assistance for reintegration when released. The Court is advised that Mr. Edusei will have access to such a program.

26I will now turn to a consideration of the fit sentence.

The Fit Sentence

27So what is the fit sentence? The appropriate sentence imposed must be one from which our society feels protected and which deters others from committing similar crimes, without crushing the hopes of Mr. Edusei. However, Mr. Edusei deserves a sentence that addresses the appropriate legal principles in consideration of his background and the facts.

28Deterrence and denunciation are significant considerations in sentencing a person like Mr. Edusei who has been found guilty of a serious offence. I also accept that the sentence Mr. Edusei does serve will be served in a harsher environment, with anxieties and tensions arising from the pandemic.

29In reaching my conclusion about the fit sentence I am mindful of the fact that this is Mr. Edusei’s first visit to the penetentiary and of the direction of Rosenberg J.A. in R. v. Borde,⁵ that a “first penitentiary sentence should be as short as possible”. Mr. Edusei is still a young man despite his criminal history.

30In all of the circumstances, I find that the appropriate sentence is a global one of three years (36 months). Mr. Edusei is entitled to credit arising from the circumstances of COVID-19. (Pre-sentence custody in accordance with R. v. Summers and R. v. Duncan (i.e., lockdowns) was addressed by Monahan J. in his reasons so that such credit is not available here.)

COVID-19 Credit

31The issue of a COVID-19 credit does not appear to have been addressed by P.J. Monahan J. in his reasons for sentence released in August 2020. I accept that the COVID-19 pandemic has heightened the anxiety of those incarcerated, like Mr. Edusei. It is difficult to comprehend compliance with the recommendation for social distancing when the inmates are housed so closely together, combined with the requirement for interaction with others daily. This is not a criticism of the institutions but simply an observation. I am certain that those employed in the institutions are making every attempt to keep the inmates healthy and limit the spread of the virus. However, these are, indeed, unusual times with information about the virus and recommendations to restrict it changing daily.

32It has been submitted that Mr. Edusei suffers from asthma and as such, may be more vulnerable to COVID-19. Further, the Court was advised that Mr. Edusei’s range has been subject to the “droplet protocol” on two occasions which means his range was segregated for seven days on two occasions.

33Based on the evidence before me, and in these most unusual times, I am prepared to give Mr. Edusei a credit of 267 days (or nine months) for the conditions of his pre-sentence custody. This reflects an acknowledgment of the hardships of serving pre-sentence custody during the COVID-19 pandemic. As such, Mr. Edusei is given a credit of 9 months.

Conclusion

34In conclusion, Mr. Edusei is sentenced to a global sentence of three years (36 months) less 9 months of credit for a further 27 months to serve. This sentence is to run concurrent to the sentence he is already serving.

35The following ancillary orders are imposed:

(i) an order under s. 487.05 of the Criminal Code that Mr. Edusei provide a sample of a bodily substance for the purpose of forensic DNA analysis and storage in the national DNA database; and

(ii) an order under s. 109 of the Criminal Code for life.

Kelly J.

Released: December 9, 2020

court file no.: CR-19-50000678-0000

DATE: 20201209

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

Akwasi edusei

reasons for SENTENCE

Kelly J.

Footnotes

1. 12020 ONSC 4856
2. 2See R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, aff’d 2013 ONCA 677, 117 O.R. (3d) 401, aff’d 2015 SCC 15, [2015] 1 SCR 773
3. 3See R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 80
4. 42020 ONSC 2365, [2020] O.J. No. 1648
5. 5(2003), 2003 CanLII 4187 (ON CA), 172 C.C.C. (3d) 225 (Ont. C.A.), at para. 3