REASONS FOR SENTENCE

OVERVIEW

[1] The defendant, Ivan Lira, was charged with six sets of robbery offences, including pointing a firearm and disguise with intent, with respect to six robberies that occurred between January 19, 2018 and February 28, 2018. He was also charged with offences relating to the possession of a firearm—a rifle, a magazine and ammunition, which were found inside a suitcase that Mr. Lira was pulling at the time of his arrest on March 1, 2018—in addition to one charge of possession of a weapon contrary to a prohibition order.

[2] At the outset of trial, Mr. Lira brought an application to exclude all the evidence seized at the time of his arrest, alleging breaches of his ss. 8, 9 and 10(b) Charter rights. I dismissed that application: see R. v. Lira, 2021 ONSC 1380 (“Charter Ruling”).

[3] At the conclusion of the Crown's case, I granted a similar fact application in part: see R. v. Lira, 2021 ONSC 1766 (“Similar Fact Ruling”). Following this ruling, the Crown withdrew the charges related to the robbery of the Royal Bank of Canada on January 29, 2018 (counts 4-6).

[4] Following a lengthy trial, on April 30, 2021, Mr. Lira was acquitted of the charges with respect to the three other robberies. My Reasons for Judgment are reported at R. v. Lira, 2021 ONSC 2639 (“Judgment”).

[5] Mr. Lira was convicted of the following offences:

• Count 16 – robbery of Irene Takla, contrary to s. 343 of the Criminal Code, R.S.C. 1985, c. C-46;

• Count 17 – robbery while having his face masked, contrary to s. 351(2) of the Criminal Code;

• Count 18 – possession of a prohibited firearm while knowingly not being the holder of a licence, contrary to s. 92(1) of the Criminal Code;

• Count 19 – possession of a prohibited firearm with readily accessible ammunition that is capable of being discharged in the firearm, contrary to s. 95(1) of the Criminal Code; and

• Count 20 – possession of a firearm while prohibited by court order, contrary to s. 117.01(1) of the Criminal Code.

[6] Mr. Lira is now before me for sentencing.

THE FACTS

Circumstances of the Offences

[7] The facts with respect to these convictions are set out in my Similar Fact Ruling and my Judgment. For the purpose of sentencing, a summary is as follows.

(a) The Firearms Offences

[8] At the time of his arrest, Mr. Lira was found in possession of a rifle that had been modified by someone cutting the length of the barrel down (the “Lira Rifle”), along with a detachable magazine containing 17 cartridges of ammunition for that rife. The rifle was in the main compartment of the suitcase he was pulling, and the magazine/ammunition was in a separate compartment. This rifle was an SKS, a Soviet semi-automatic rifle that was operable and functioned as a single-shot rifle. The SKS is a prohibited firearm as defined in s. 84 of the Criminal Code.

[9] Considering my Charter Ruling and other admitted facts, at the conclusion of the trial Ms. Casey, trial counsel for Mr. Lira, advised that Mr. Lira was not admitting that the Lira Rife found in his possession at the time of his arrest was used in any of the robberies but accepted that there would be a finding of guilt on the relevant charges with respect to the possession of the Lira Rifle. In light of the evidence and the admitted facts, I found Mr. Lira guilty of counts 18-20.

(b) The Sheppard Warden Pharmacy Robbery

[10] On February 28, 2018, in the middle of the afternoon, Mr. Lira, while masked and in the company of another masked man robbed Irene Takla, the pharmacist at the Sheppard Warden Pharmacy (“SWP”) at 3410 Sheppard Avenue East. I found that it was Mr. Lira who was carrying a black rifle, with a short barrel, no visible butt stock, a curved magazine and what appeared to be a pistol grip very close to the end of the rifle. The other man did not appear to be armed. Both men went behind the counter of the pharmacy area. Mr. Lira pointed this rifle at both Ms. Takla and Ms. Catay, her pharmacy assistant, and a volunteer, who were all behind the pharmacy counter. The men were asking for cash and “oxys”, namely Oxycodone, a narcotic and at one point one of the men asked where the “percs”, namely Percocet, were. Mr. Lira went into the compounding room and he began to shove bottles into his pocket. He also yelled at his accomplice to get the “drugs” and that they already had the cash. Ms. Catay heard Mr. Lira’s accomplice demand that Ms. Takla tell him where the drugs were. Mr. Lira helped find the safe, then rounded everyone up, controlling the employees and customers while his accomplice took drugs out of the safe. After about two minutes they both exited the pharmacy.

[11] At para. 136 of my Judgment I found that I was satisfied beyond a reasonable doubt that Mr. Lira was the masked suspect holding the rifle who robbed Ms. Takla. I did not state expressly in my Judgment in any single statement that I was satisfied beyond a reasonable doubt that the rifle in Mr. Lira’s possession during the robbery was the Lira Rifle. However, that finding is clear from reading my entire Judgment. Mr. Mencel fairly conceded that point at the outset of his sentencing submissions.

[12] Because this was a case largely of circumstantial evidence, my findings with respect to the robbery charges were incremental. At para. 71 of my Judgment, I concluded based on a visual comparison of the Lira Rifle and the rifle seen in the video of the robbery that it was “highly likely” that the rifle in the SWP robbery used by Mr. Lira was the Lira Rifle. I went on to state, at para. 72, that this finding was strengthened by the other evidence I heard that just a little over an hour after the SWP robbery, Mr. Lira and Mr. Snyder were observed by Mobile Support Services (“MSS”) officers each pulling a black suitcase. I found that the Lira Rifle and ammunition were in the black suitcase that Mr. Lira was seen pulling and that was found in his possession at the time of his arrest. At paras. 113 and 115, I found that the only reasonable inference from the evidence was that Mr. Lira used the Lira Rifle in the SWP robbery. Finally, at para. 136, I found that Mr. Lira was the suspect holding the rifle during the robbery. I therefore have no difficulty in proceeding with this sentencing on the basis that the Crown has proven beyond a reasonable doubt that Mr. Lira had the Lira Rifle in his possession and that it was a real and operable prohibited firearm.

[13] The remaining question for the purpose of sentencing is: was the Lira Rifle loaded during the robbery? Ms. Batorska, on behalf of the Crown, argued that it was. She pointed out that when Mr. Lira was arrested, the magazine itself was loaded with 17 rounds of ammunition and the video evidence of the SWP robbery shows that the magazine was in the Lira Rifle at that time. Mr. Mencel submitted that there had been too much time lost in the chain of continuity to conclude that the Lira Rifle was loaded at the time of the robbery. He pointed out that the magazine was found in a different section of the suitcase. It is his position that there is too much of an inferential gap to conclude that the Lira Rifle was loaded during the robbery.

[14] Having carefully considered this issue, and considering all the trial evidence, I find that the Crown has proven beyond a reasonable doubt that the Lira Rifle was loaded at the time of the SWP robbery. Ms. Batorska’s submissions are sound. Even without the magazine the Lira Rifle would be intimidating and look real to an uninformed observer. The only reason to have added the magazine to the Lira Rifle for the purpose of the robbery would be to have a loaded firearm for the robbery.

[15] When the Lira Rifle was found in Mr. Lira’s possession the magazine was loaded with all of the ammunition in the suitcase. The fact that it was found in a separate part of the suitcase makes sense as it was being transported in the suitcase and the Lira Rifle, if loaded during transport, could accidentally discharge. Keeping the magazine out of the Lira Rifle would also avoid any noise of the two parts hitting each other during transport.

[16] As for continuity, there is no evidence to suggest that anyone else handled the Lira Rifle during the time it was in Mr. Lira’s possession following the SWP robbery. In fact, at para. 112 of my Judgment, I found that when Mr. Lira was first seen with the suitcase shortly after the SWP robbery, the Lira Rifle was inside and that it stayed inside the suitcase until he was arrested the next day with the same black suitcase.

[17] I found that bottles of Concerta, Ratio Lenoltec, and Tecnal, a narcotic, were stolen from the SWP. When a stolen Honda Mr. Lira was seen driving, was found, shortly after the robbery, police recovered a bottle of Concerta that was stolen from the SWP during the robbery.

[18] In my Judgment I set out in detail the observations made by various MSS officers of Mr. Lira and Mr. Snyder following the SWP robbery to the time Mr. Lira was arrested the following day. For sentencing, what is relevant is that Mr. Lira put the suitcase in the trunk of a stolen Honda, which he then drove, with Mr. Snyder in the front passenger seat, to 490 Wilson Avenue where he parked the vehicle. He and Mr. Snyder then walked together to the Wilson Subway Station, each pulling a black suitcase. They took a southbound train two stops to Lawrence West Station, exited the subway, and walked along Lawrence Avenue West and walked north on Varna Drive and arrived at 22 Varna Drive (“22 Varna”), a three-story community housing building. Mr. Lira and Mr. Snyder then brought the black suitcases into the apartment of Irene Bigus.

[19] When police later arrested Mr. Snyder and searched Ms. Bigus’ apartment, nine pill bottles were found, which I found were not the property of Ms. Bigus. Some of these pill bottles were still sealed and others were open. They contained various medications including Percocet, Concerta, Oxycodone, and OxyContin. As set out in my Similar Fact Ruling, four of the nine bottles were identified by Ms. Takla as being taken from the SWP. I also found that Mr. Lira had the Lira Rifle in the suitcase from when we he was seen leaving 22 Varna the next morning, on March 1, 2018, until his arrest later that day.

[20] There is no doubt that this robbery was carefully planned by Mr. Lira. He deliberately created two Google Maps Street View images of the building where the SWP is located and the surrounding area on his cell phone just hours before the robbery of the SWP, for the purpose of the robbery.

[21] I set out WhatsApp Chats and SMS messages between Mr. Lira and persons named Mayra, Devon Kerr and “Styles 1” in my Similar Fact Ruling. Based on that evidence I find beyond a reasonable doubt that the purpose of stealing the medications from the SWP was to sell those drugs. That is an obvious inference in any event from the fact that these medications were stolen. They were clearly stolen to make money, not for personal use.

[22] The following is also relevant to sentencing. Based on SMS messages extracted from Mr. Lira’s cell phone, I found that before Mr. Lira was arrested, he was travelling on the TTC with the Lira Rifle in the black suitcase to meet with a person named Carlitz at a McDonald’s. I also found that the only reasonable inference was that Mr. Lira was now bringing the Lira Rifle to Carlitz, although I have no evidence as to the purpose of that planned exchange or what this means in terms of who owned the Lira Rifle.

Circumstances of Mr. Lira

[23] I do not have a pre-sentence report for Mr. Lira, but I do have evidence from him and several support letters which provide considerable information about his background.

(a) The Evidence of Mr. Lira

[24] Mr. Lira provided an affidavit on sentencing and he testified at the commencement of his sentencing hearing.

[25] Mr. Lira was born in Winnipeg in September 1991 and is now 30 years old. His mother and father immigrated to Canada from Nicaragua a year before he was born. When he was around five years old, his family moved to Toronto. He has a brother who is two years older and a sister who is a few years younger than him.

[26] Mr. Lira deposed that growing up, he was very close with his family. His mother worked hard cleaning at a hospital and his father attended classes at George Brown College. Mr. Lira looked up to his father, who instilled good values and a sense of discipline in Mr. Lira. Mr. Lira initially worked hard and did very well in school. However, when he was 11 years old, his father abandoned the family. His mother was left with debts and had to work very hard to take care of Mr. Lira and his siblings. Mr. Lira has not had contact with his father since then.

[27] Mr. Lira deposed that after his father left, the family moved around a lot and spent a year in a shelter. He started looking in the wrong places for the guidance he had lost from his father. He started hanging around bad influences and getting into trouble and unfortunately ended up in youth custody. Mr. Lira states that while in custody he continued to be around bad influences and learned to fight to protect himself and keep people from stealing his food.

[28] Mr. Lira admits that once he was out of custody, he quickly got in trouble again — a reference to the offences he was convicted of in 2014 by Justice MacDonald, which are summarized below. Mr. Lira deposed that he continued the same patterns while in prison serving an eight-year sentence imposed by MacDonald J. and that, once released, he kept associating with the wrong people. He was released in the fall of 2017 and shortly thereafter arrested on the charges currently before the court.

[29] While Mr. Lira was out of custody, and before being arrested on these charges, he became engaged to one of his high school friends, Mayra Alejandra Rico Wolf. On March 1, 2018, the day Mr. Lira was arrested, he found out that Mayra was pregnant with his daughter, who was born in November 2018.

[30] Mr. Lira deposed that since being incarcerated at the Toronto South Detention Centre (“TSDC”), he has completed three high school correspondence courses so that he can get his high school equivalency (his GED). He has also completed four post-secondary courses through Centennial College. Further, he has also been working with individuals from the Prosper program, who have helped him plan for his life after his release from custody. They have agreed to support him once he is released so that he can build a new life for his family.

[31] Mr. Lira also deposed that since he has been incarcerated, he has been put in touch with Ms. Wolf’s pastor. Prior to COVID-19, he met with him several times over many months and began studying the Bible. Mr. Lira states that he has found a lot of comfort in religion and knows it can help him to be a better father, husband, and person.

[32] Mr. Lira has been offered a job in construction through a family friend for when he is released. He will take this employment so that he can support his family. Once he is back on his feet, he plans on getting a student loan and going back to school to become an electrician. He has also discussed starting a renovation or fitness business with Ms. Wolf. Mr. Lira deposed that he will not have any contact with any of the bad influences he used to associate with before coming into custody as he is focused on his family and starting a new life with them. He does not want to keep making the same mistakes.

[33] Ms. Batorska put to Mr. Lira the words he spoke to Justice MacDonald at the sentencing hearing in October 2014, which are set out below. Mr. Lira admitted that what he was saying now is the same as what he told Justice MacDonald. He testified that he was 23 when he went to the penitentiary and was scared of older men there who were more violent and doing life sentences. He admitted that his seven years in the penitentiary made him worse and that it did not deter him from committing further criminal offences. Mr. Lira testified that he realizes now that when he gets out of jail he can’t continue to be around criminals. He said that he has been reflecting over the last couple of years and described the change in him as an epiphany. He has found comfort in religion, although he admitted that despite this he has continued to get into trouble in jail.

[34] Mr. Lira deposed that when he found out Ms. Wolf was pregnant, he realized he could not keep living “this life”. It has been difficult watching his daughter grow up through a video screen for the past three years. He has only had one touch visit since his arrest. Mr. Lira said that he does not want his daughter to have the same experience as he did, growing up without a father.

[35] At the conclusion of the sentencing hearing Mr. Lira addressed me. He stated in more detail what he had deposed in his affidavit and testified to. Mr. Lira told me that he is a different man from the man who was arrested. He no longer wakes up each day thinking about himself first. He now thinks about his family who waits for him. He now reflects on his mistakes and how his actions affected people including how he damaged his family. He stated that he was never conscious of his actions until the day he realized he was going to be a father. Then everything changed. Missing out on his fiancé’s pregnancy and his daughter’s birth and not being there for first birthday, first words, first steps, it all sunk in: how could he live with himself if his daughter is ashamed of him because he is not there for her and couldn’t be a good role model for her? Mr. Lira told me that all he wants is to be an amazing father and, unlike his father, to be with his daughter every step of the way. For his rehabilitation, he found purpose for his existence. He wants to take care of his family and to be a father to his daughter. He said that prior incarceration has made him accustomed to a violent environment but that now that he is a father he is disgusted that he must fight for showers or phone calls due to COVID-19 lockdowns. He told me that he could go into more detail as to how the TSDC “turns men into animals” but did not want to paint himself as a victim. He wants to focus on his future. He told me of his plans to become an electrician to make his daughter proud. Mr. Lira also told me that he has tried to remain positive these past years, but the longer he is away from his family, the harder it gets.

(b) Mr. Lira’s Evidence on the Conditions at the TSDC and his Record of Misconducts

[36] Mr. Lira’s affidavit provides his evidence on his record of misconducts while incarcerated and the impact that the conditions at the TSDC have had on him. Counsel prepared a summary of Mr. Lira’s misconducts while in custody. Mr. Lira was also examined on these issues at the sentencing hearing.

[37] Mr. Lira has been in custody at the TSDC since his arrest. He describes the conditions at the TSDC as especially harsh and degrading. Mr. Lira states that although he knows that he is ultimately responsible for the misconducts, the conditions at the TSDC “helped create the bad mindset I have been in, especially since COVID-19 hit”. He testified that he fell into a “dark place” because his educational program ended and that he became angry and felt isolated because he could not see his family. Other inmates were also angry and isolated. Mr. Lira deposed that he began to make bad decisions that got him into trouble — a reference to the altercations with other inmates — but that the misconducts he received “do not tell the entire story and are not all accurate”.

[38] Mr. Lira testified that even if someone hit him first, there was no real chance to tell his side of the story since the Sergeant would just find everyone guilty. He claims that the misconducts are mostly summaries by guards who were not even present. He testified that in one case, he took the blame for contraband that was found in his cell even though it was not his because he felt he could handle segregation better than the younger inmate in the cell with him. Now that he sees light at the end of the tunnel and is seeing his family, he has something to hope for and has tried to stay out of trouble.

[39] In cross-examination Mr. Lira admitted that when he was alleged to have done wrong, he was able to give a statement and bring a witness to speak to the matter. He did not do so because the culture at the TSDC was that if he did, he would be labelled a snitch, which would result in more trouble. He could appeal a decision but testified that he only appealed once and received no response. He agreed in cross-examination that he admitted to many of the misconducts. He also admitted that in some cases rules were followed and he was found not guilty of an alleged misconduct. Mr. Lira testified that he was not here to say that all the misconducts were not his fault. He admitted that following a misconduct he would lose privileges. He could be moved to the Behavioural Control Unit where, he admitted, he was there for months at a time. In that unit there would be less freedom and less time out of his cell.

[40] Mr. Lira describes in his affidavit what a normal day without lockdowns looks like at the TSDC and what access he has to programs, including educational programs, phone calls, and in-person personal and professional visits. He also describes in some detail what the cells and outdoor space are like and certain problems in the TSDC that he has experienced with respect to showers, the laundry, and the clothing he is provided with.

[41] Mr. Lira also deposed what would happen during lockdowns when he would be confined to his cell for the entirety of the lockdown. There have been occasions where there were lockdowns for multiple days in a row. If locked down for a lengthy period, he was sometimes let out for a twenty-minute period for a shower and phone call. TSDC calls this the shower program. However, the shower program was not guaranteed. Mr. Lira deposed that they often did not get showers or phone calls during lockdowns.

[42] Mr. Lira deposed that being deprived of a shower and confined to a cell for prolonged periods with a cellmate was awful and it could get smelly. He tried to avoid exercise when on lockdown, so he did not get too sweaty and stink up the cell. Even more difficult was the fact that visits with his daughter and fiancé would be cancelled at the last minute due to lockdowns which naturally he found very disappointing and isolating.

[43] According to Mr. Lira, once COVID-19 hit, everything got much worse. His mental health deteriorated a lot and he began to make bad decisions. He worried about his mother who works in a hospital and the increased/additional lockdowns. The prisoners were told that the correctional officers were calling in sick. They did not know much about the virus and could not distance from each other. Mr. Lira’s affidavit goes on to describe in extensive detail what conditions were like because of the pandemic. He felt that he had little control over his risk of exposure to COVID-19 as he had no control over what other inmates, or the correctional officers were doing. The preexisting tension between inmates increased with the even worse conditions brought on by COVID. This made living at the TSDC very difficult.

[44] Mr. Lira deposed that if an inmate on a range showed symptoms of COVID-19, the range would be put on a droplet program. This program locks the range down for four days until test results come back. He has been in the four-day droplet program lockdowns multiple times.

[45] Worst of all, visits were cancelled from approximately March 2020 to September 2020 and again from approximately November 2020 to April 2021. He missed seeing his daughter growing up during this time. His mail also slowed down and telephone access was limited so he was almost entirely cut off from his family. All programs were cancelled and his schooling was interrupted so Mr. Lira had nothing to keep him busy. Mr. Lira deposed that all of this felt like it was destroying the progress he had been making. He states that overall his time in the TSDC has been the most difficult period of custody he has ever served.

(c) The Support Letters

(i) Amadeusz Education Program

[46] Kimberly D’Cunha, the Director of Programs and Services at the Amadeusz Education Program at the TSDC, wrote that Mr. Lira has voluntarily participated in this program. She confirmed that he has completed both high school and post-secondary level courses. He completed three high school correspondence courses obtaining marks between 85% and 94%. Mr. Lira has also been registered as a part-time student through distance learning at Centennial College and has been working towards completing the “Business Management – Marketing” certificate. To date, he has completed four courses and he has obtained all As and one A+. He has three more courses to finish to fulfill the requirements for the certificate.

[47] Ms. D’Cunha states that Mr. Lira has demonstrated that he is a dedicated, capable, and engaged participant and that he maintains a positive attitude toward his work with Amadeusz staff. He attends the program regularly, completes assignments, takes initiative in his learning, and asks for help when needed.

(ii) Amadeusz Prosper Program

[48] Sheena Blake Brown, a case worker with the Prosper program, confirmed that Mr. Lira has voluntarily participated in Amadeusz programming through Prosper. As a participant in this program, Mr. Lira has been working on his leadership and communication skills and his self-understanding. In addition, he is working with a case worker to develop an individualized plan of support as it relates to his health, his future employment and training, his income, and his life skills. This plan is to be implemented both while he is incarcerated and upon his release to provide continuing support during his transition to the community. She advises that Mr. Lira hopes to continue studying and improving skills such as listening and becoming more aware of his actions.

[49] Upon release, Mr. Lira will be able to access funding for a laptop for educational and employment purposes and gift cards to assist him with his transition to community. He will also continue to have a case worker to support him in all of these areas as well as connecting him with other community supports.

[50] Finally, Ms. Brown reports that throughout his involvement with Amadeusz, Mr. Lira has demonstrated that he is a dedicated, capable, and engaged participant. He completes assignments, takes initiative in his learning, and asks for help when needed. Additionally, Mr. Lira maintains a positive attitude toward his work with Amadeusz staﬀ.

(iii) M. Lainez, Mr. Lira’s Mother

[51] Ms. Lainez reports that she did her best as a single mother raising her three children and that her other two children are going to university and staying out of trouble. I agree with her comments that this is proof that despite the challenges of being a single parent she has been a good mother. Ms. Lainez writes that she always had problems understanding her son’s lifestyle choices. She believes that her son’s choices are partly explained by his father’s absence, which Mr. Lira took very harshly since of his siblings he was the closest to their father. Ms. Lainez added that this has never been an accepted excuse for him choosing this path. She didn’t come to Canada for her son to throw away his life and did not raise him to be a “degenerate”.

[52] Ms. Lainez states that she has always held on to the hope that her son would turn his life around and she has never turned her back on her son. She has always let him know there is hope and at same time, she lets him know how disgraceful it is to be incarcerated. She finds it hard to see her son in jail and to see what the years in jail are doing to him.

[53] Ms. Lainez states the obvious question in her letter: “You are probably wondering what the difference is this time around if the last time in jail didn’t do it”. Her answer to this question is that this time she sees something she never saw or felt before: Mr. Lira has found purpose and motivation in life through his fiancé and daughter. His daughter has planted a newfound love inside of him and it has given him hope in all the misery that surrounds him due to the consequence of his choices. His fiancé has emotionally supported him like no one else and all he talks about is coming home to be with his family. She believes this new responsibility of marriage and fatherhood has directed him towards the right path. Her son wants so badly to be there for his daughter completely, unlike his own father. All he wants is the opportunity to step up to the plate to provide security for his family.

[54] Ms. Lainez ends her letter as follows:

You might think this is only a mother hoping for her son to change. You are right but as his mother I will always hope and never regret clinging on to that hope because my son is living proof that all these years of hope have come true. His rehabilitation has come in the form, not of being locked away like an animal but in the form of a beautiful daughter named R… . he is a new man, and his daughter did something to him that jail could not. She gave him a reason to live his life with purpose. All I hope now is that he can have the opportunity to come home to be here with his family to get married to be a father to his daughter. The change in him has already been done.

(iv) Mayra Alejandra Rico Wolf, Fiancée

[55] Ms. Wolf, Mr. Lira’s fiancée, met him in high school and they became romantically involved in January 2018 and have been together ever since.

[56] Ms. Wolf is 29 years old, was born in Colombia and came to Canada at the age of six with both of her parents, who are professionals, and her older sister. Ms. Wolf states that she has gone to school and has held various professional jobs. Currently she is doing freelance personal training and works from home on a casual basis as an assistant at an investment firm. Ms. Wolf found out on March 1, 2018 that she was pregnant with Mr. Lira’s child, the same day that he was taken into custody. She loves Mr. Lira and has provided him support over the time he has been incarcerated. She states that she will give him an immense amount of support during his reintegration, following his release.

[57] Like Mr. Lira’s mother, Ms. Wolf believes that the news of Mr. Lira becoming a father sparked the principal change in him. During her pregnancy he was reminded of all he was missing out on. All he ever wanted was a little family of his own. Ms. Wolf believes that Mr. Lira realized that he needed to make a change for himself. He started to recognize the responsibilities that she put on him to make sure he is a father figure for their daughter, one who can influence their daughter positively. The last thing Mr. Lira wants is to abandon his daughter the way his father abandoned his family.

[58] Ms. Wolf states that from the outset Mr. Lira took the initiative to start building towards his future, a reference to his taking courses to graduate high school and to starting a college program. He asked Ms. Wolf to send him self-help books that he would read and take notes on, something that Mr. Lira has never done in his past.

[59] Mr. Lira has expressed to Ms. Wolf his goals to set his life straight, including his plan to come out and work to provide for his family. They have plans to start their own business together in renovations as well as in fitness. Mr. Lira has acknowledged to Ms. Wolf many times that he made mistakes in life. He has agreed that he has always gravitated towards the wrong type of individuals. He has told her that he wants no involvement with anybody that he used to know and that his only fulfillment, enjoyment, and priority is his daughter and Ms. Wolf. She firmly believes that he is a different person now and that he plans to live differently. In Ms. Wolf’s opinion, Mr. Lira’s change has come from the support he received from her and his family while incarcerated this time around. He is driven by love and is passionate about those who invest into him hence why he looked up to his father. She believes he has found that new love, passion and desire in her and their daughter to be a better individual for their family.

[60] Ms. Wolf states that she is certain that the longer Mr. Lira stays incarcerated, the more that the efforts that he has made will be wasted and lost. His success is dependent on him being released to be able to turn his plans into action. From her experience, rehabilitation comes from a strong positive support system on the outside as well as the individual’s willingness to change. In her opinion, the immoral conditions in the TSDC have not helped Mr. Lira become a better person.

[61] Ms. Wolf also wrote about her own support system and her close relationship with her parents and sister. They will also be there to help Mr. Lira once he is released and will encourage him to stay on the right path.

[62] Ms. Wolf concludes her letter as follows:

Ivan’s situation is very different now than when he went it. He has so much to live for; a child that he loves and wants to build a relationship with a loving partner that he wants to build a future and family with, dreams and goals to build and look forward to. With all certainty I can say that he has learned from his time in jail and any further time would not help him improve his life or benefit his family, rather it would hinder his ability to become a contributing member of society, a father figure, and a supportive partner. he has in affect been punished already with the time he has served and all the grand moments he has missed; not just him but his daughter and I also. I ask you kindly to have mercy on him and our family and consider us when deciding on his sentencing. ….

(v) Pastor Cory McTague

[63] Pastor Cory McTague is the Pastor at the Sparrow Baptist Church in Etobicoke. He states that he has known Mr. Lira for between two to three years though Ms. Wolf, whom he describes as a faithful attendee at the church. He has visited Mr. Lira at Ms. Wolf’s request. Pastor McTague writes that from his first encounter Mr. Lira was genuinely interested in the topic of religion and spirituality, especially in understanding the Bible. He visited him every few weeks for several months. Based on his conversations with Mr. Lira and his 15 years of ministry experience, Pastor McTague perceives that Mr. Lira, after many months of personal study, has chosen to become a Christian.

[64] Pastor McTague’s meetings with Mr. Lira were regular for a period and were then interrupted due to lockdowns during the COVID-19 pandemic. He has resumed these meetings with Mr. Lira over the past several months. Pastor McTague writes that Mr. Lira is still as interested in learning the Bible as he was before the pandemic. He seems genuinely interested to apply the truths of Christianity to his life. He speaks of one day being a good husband and father. Their discussions are primarily spiritual. He seeks to understand the questions that various religions present.

(vi) Future Employer

[65] Scott Minnie is a steel man foreman and provided a letter on behalf of Avenue Building Incorporated stating that he is aware of Mr. Lira’s situation and his charges and that he was referred to him by a long-time employee whom he trusts and has employed for several years. This employee will pick Mr. Lira up for work and drop him off at home. Mr. Minnie is prepared to hire Mr. Lira on his release as a steel man for a full-time position with benefits. Mr. Lira will be trained in laying reinforced rebar on high rise condos. Mr. Minnie states that he believes in giving individuals a second chance in a society that rejects those with criminal records.

(d) Mr. Lira’s Criminal Record

[66] Mr. Lira has accumulated a very serious criminal record, including a lengthy youth record. His record is as follows:

Youth Record

December 13th, 2007:

Theft under $5000, 2) Mischief under $5000 - probation of two years on each charge, concurrent,
Break and Enter with Intent, 4) Failure to comply with conditions of undertaking given by the officer in charge - time served of 24 days, and probation of two years on each charge concurrent with each other, and with prior probation orders,
Failure to comply with Recognizance; 6) Possession of break-in instruments, 7) Possession of Property obtained by Crime under $5000 - probation of two years on each charge concurrent with each other, and concurrent with other probation orders.

April 29th, 2008:

Possession of a weapon, 2) Break, enter, and theft, 3) Fail to comply with a disposition, 4) Fail to comply with the conditions of an undertaking given by officer in charge - time served of 104 days, and probation of 12 months on each charge, concurrent. In addition, a discretionary prohibition order pursuant to s. 51(3) of the Youth Criminal Justice Act (“YCJA”), was imposed for a period of two years.

June 5, 2009:

Flight while pursued by a peace office - time served of six months, plus probation for one year,
Dangerous operation of a motor vehicle, 3) Possession of property obtained by crime, 4) Failure to comply with a disposition - probation of one year on each charge, concurrent with each other, and concurrent with the probation order imposed on Count 1.

December 22, 2009:

Robbery times two, 2) Use of a firearm during the commission of an indictable offence times two, Possession of Property obtained by Crime over $5000, 4) Fail to comply with a disposition, 5) Fail to comply with a recognizance, 6) Disguise with intent - 60 days of deferred custody, and a supervision order, probation of 18 months on each charge, concurrent; and in addition, a discretionary prohibition order pursuant to s. 51(3) of the YCJA for a period of five years.

Adult Record

October 20, 2010:

Fabricating evidence - suspended sentence and probation of 12 months, in addition to 20 days of pre-sentence custody.

November 30th, 2010:

Fail to comply with a probation order - suspended sentence and probation of one year, in addition to five days of pre-sentence custody.

October 27, 2014:

1)Armed robbery using a firearm –Two years and seven months (65 months) of pre-sentence custody and mandatory weapons prohibition order,

Possession of a prohibited or restricted firearm with ammunition s. 95(1) – Four years concurrent,

3)Disguise with intent – one year concurrent,

Possession of firearm or ammunition contrary to prohibition order – one year concurrent,
Possession of property obtained by crime under $5,000 – three months concurrent.

In addition, a s.109 prohibition order for life was imposed.

August 14, 2017:

Assault cause bodily harm – 18 months consecutive to sentence being served (435 pre-sentence custody) and mandatory weapons prohibition order s. 109.

September 29, 2017:

Possession of a weapon – one day equivalent and credit for the equivalent of 90 pre-sentence custody.

(e) Record of Misconducts While in Custody

[67] I appreciate that not all of the misconducts set out in the summary prepared by counsel are accurate findings in terms of who was at fault and I will take what Mr. Lira testified to into consideration. However, the sheer number of misconducts and the nature of most of them is relevant. They contrast with Mr. Lira’s statement to me that once he found out that he was a father he became disgusted by the violence at the TSDC.

[68] The first misconduct did not occur until almost seven months after Mr. Lira was incarcerated and it was for the possession of marijuana. As Mr. Mencel argues, this does suggest that before COVID-19, Mr. Lira was doing reasonably well in custody. Mr. Mencel also submitted that from his arrest to the first misconduct on April 12, 2020, Mr. Lira spent 773 days in custody and 367 of those days, or 47%, had some form of lockdown, a very significant amount of time.

[69] Several of the misconducts after April 2020 are for the possession of contraband such as marijuana, home-made alcohol, or a cell phone and so are not particularly relevant to sentencing, save for the Duncan Credit.

[70] The other misconducts, however, are serious. Given what Mr. Lira said about conditions during COVID-19, I have first considered the misconducts that took place before March 2020.

[71] In fall 2019, there were two misconducts for Mr. Lira’s involvement in fights. Mr. Mencel argued that this was after 20 months of harsh conditions at the TSDC. That may be true, but in my experience in criminal sentencings, not every inmate gets into fights at the TSDC. After the pandemic began there were many more misconducts, many being quite serious. While I appreciate that some might have been triggered by the stress of the pandemic, as Mr. Lira testified to, in June 2020, during a search of Mr. Lira's cell, a two-inch metal razor blade was found hidden inside a paperback book which was inside Mr. Lira’s property bag. I do not see how this could be related to the pressure of being incarcerated during COVID-19. Most of the remaining misconducts involve Mr. Lira willfully disobeying orders and assaultive behaviour. Even accepting that Mr. Lira did not initiate all of these fights, in my view the entirety of his behaviour cannot be explained by the pressures of COVID-19. What is also striking is that in 2021 Mr. Lira had one or more misconducts every month, save for March and May, up until the end of August 2021. However, although I do not know what date the summary goes to, there is no evidence that since August 2021 Mr. Lira has been found guilty of any misconducts. That is a good sign.

Impact on the Complainants

[72] The Crown has not received victim impact statements from Ms. Takla, Ms. Catay or the volunteer who was present, who were obviously the most directly impacted. However, since it was mid-afternoon, there were others in the pharmacy and Mr. Lira used the Lira Rifle to round them all up while his accomplice emptied the safe. The Crown did not receive victim statements from them, either.

[73] Ms. Takla was robbed at gun point. One of the two men had what she described as a big black gun with a big nozzle. That man was Mr. Lira. He told her and Ms. Catay that they would not hurt them, but he pointed the gun at them. Ms. Catay believed the gun was real and she testified that she was scared. That is a completely natural reaction.

[74] Even in the absence of victim impact statements, there can be no doubt that this was a terrifying experience for the three women behind the pharmacy counter as they were told not to move and were held at gunpoint while Mr. Lira and his accomplice robbed the pharmacy. They were particularly vulnerable and not able to call police or other assistance until after Mr. Lira and his accomplice left. I have no doubt that this crime had a significant impact on them. In addition, the staff and customers who were rounded up by Mr. Lira were no doubt very scared as well.

[75] As the court said in R. v. Taylor, 2016 ONSC 94974 (Ont. S.C.), at para. 35: “[i]f small convenience stores are considered vulnerable, then pharmacies are more so given their stock of opioids on hand for legitimate medical prescriptions.”

The Reasons for Sentence of MacDonald J., October 27, 2014

[76] The reasons for sentence of Justice John MacDonald on October 27, 2014, are of considerable assistance. Mr. Lira was found guilty by a jury of one count of robbery and one count of having his face masked with intent to commit an indictable offence. Both offences arose out of the robbery of a money remittance store in a small shopping mall in Toronto on November 14, 2010. One of the two masked robbers carried what appeared to be a shotgun. There was no finding that this was Mr. Lira. MacDonald J. also found that the Crown had failed to prove that it was, in fact, a firearm within the meaning of the Criminal Code and so he treated it as an imitation of a shotgun.

[77] In addition, Mr. Lira pleaded guilty to possession of a loaded prohibited firearm, namely a Magnum handgun, while he was not authorized or licensed, or the holder of a registration certificate for it; possessing that firearm while prohibited from doing so by court order; and possession of property obtained by crime, having a value not exceeding $5000. These latter offences arose out of events just over a month later, on December 18, 2010, when a police surveillance team observed Mr. Lira exiting his apartment building wearing a disguise consisting of a wig, facial hair, and dark glasses. He was then seen driving in a stolen vehicle to a shopping mall and was observed entering a grocery store on a number of occasions, returning to the stolen vehicle in-between visits. Mr. Lira was arrested at the vehicle and the loaded Magnum handgun was found on his person. It was a revolver with four rounds of ammunition in the cylinder. One bullet was flattened, so that it could cause more damage than the rounded copper-cased bullets; however, the evidence did not establish that the ammunition was Magnum ammunition.

[78] Mr. Lira addressed Justice MacDonald. He said that when he was incarcerated in December 2010, he was a kid who never thought of consequences, that almost four years in jail had changed his outlook, and that he had seen people who had ruined their lives by their criminal activities. Mr. Lira told MacDonald J. that he was therefore trying to change and avoid being lured into crime. He said that he had plans of going to school and, later, college or university, and of leading a regular life.

[79] The Crown asked MacDonald J. to impose a 13-year global sentence: eight years for the robbery, one year concurrent for being masked, four years consecutive for possession of the loaded prohibited firearm, and one year consecutive for breach of the prohibition order. The defence’s position was that considering the principle of totality, the sentence for the robbery should be three to four years, two to three years consecutive for possession of the firearm, and one year consecutive for the breach.

[80] Given that Mr. Lira turned 19 a few months before he committed the offences he was convicted of, MacDonald J. said that in sentencing Mr. Lira he was guided by the principles set out by Rosenberg J.A. in R. v. Borde (2003), 2003 ONCA 4187, 63 O.R. (3d) 417 (C.A.) (“Borde”).

[81] But for the totality principle and the principle of restraint, MacDonald J. stated that the usual practice of imposing consecutive sentences for offences taking place at different times, and for breach of a firearms prohibition, would cause him to conclude that sentences totaling in the low double digits, prior to pre-sentence credit, would be appropriate. However, he was of the view that a low double-digit sentence, less credit, would be a crushing sentence for Mr. Lira and would offend against the totality principle. He stated that even the fewest possible years of imprisonment that would achieve the relevant sentencing objectives would offend the totality principle if consecutive sentences were imposed pursuant to the usual practice.

[82] Justice MacDonald went on to consider two options. The first was to reduce the quantum of individual sentences. He concluded that the difficulty in doing this would be that it would distort Mr. Lira’s criminal record in the future, should Mr. Lira re-offend, because these reduced sentences might suggest that the conduct for which he was being sentenced was less serious than it really was. He also considered the other option: refraining from imposing consecutive sentences. Under this option, the sentences for individual offences could reflect the seriousness of each offence and Mr. Lira’s criminal record would be a more accurate representation of his criminal history.

[83] MacDonald J. chose the second option. Justice MacDonald concluded that it would be in the public interest to ensure that Mr. Lira’s record disclosed the seriousness of his various criminal convictions. He sentenced Mr. Lira to seven years for the robbery conviction, which he stated was the shortest sentence of imprisonment; one year imprisonment concurrent for the mask with intent conviction; and four years in prison for possession of a loaded prohibited firearm arising from a very serious breach of s. 95(1) of the Criminal Code. While acknowledging that sentences would ordinarily be consecutive, Macdonald J. ordered that they be concurrent in order to avoid imposing a total sentence that would be crushing to Mr. Lira. On the conviction for possession of property obtained by crime, he imposed a sentence of three months’ imprisonment, concurrent. On the conviction for breach of the firearms prohibition, although he had given notice to the Crown that he was concerned that his proposed one-year imprisonment consecutive was not a fit sentence, he applied the totality principle and imposed a sentence of one year imprisonment, consecutive. The global sentence was a total of eight years less pre-sentence credit of 65 months, leaving two years, seven months, left to serve.

The Sentence Imposed on Mr. Lira’s Co-accused

[84] William Snyder, Mr. Lira’s co-accused, was charged with three sets of offences arising out of three of the six robberies. Mr. Snyder pleaded guilty on November 18, 2019, before McMahon J., to participating in the three robberies. I do not know the specific offences Mr. Snyder pleaded to and I do not have McMahon J.’s reasons for sentence. Mr. Snyder was sentenced to seven years less pre-sentence custody.

[85] In respect of two of the bank robberies, Mr. Snyder admitted that he was inside the bank carrying a bag and that his accomplice, whom he refused to name, was carrying a handgun that Mr. Snyder believed to be real. Mr. Snyder admitted that on both occasions he was wilfully blind as to whether the handgun was real or not and whether it was loaded or not. On both occasions he and his accomplice were masked and got into a stolen vehicle to leave the scene.

[86] Mr. Snyder also admitted that he was the getaway driver for the SWP robbery that Mr. Lira was convicted of. He admitted that he was wilfully blind about what was going to take place at the pharmacy. He was not aware of whether the SKS rifle used in the robbery was real or whether it was loaded at the time. He was not present to observe the firearm that was being used in the commission of this offence.

[87] Mr. Snyder’s criminal record is very different from Mr. Lira’s and did not include any convictions for which he received any jail time save a recent “Over 80” conviction for which he was sentenced to a fine and 30 days in jail. His other convictions are dated. There are a couple of convictions between 1999 and 2001 for theft under $5,000 and possession of a Schedule I substance and an assault conviction in 1988.

[88] In my view, although Mr. Snyder admitted to participating in three robberies, he was never in actual possession of a firearm and did not admit to knowing that the Lira Rife was used in the SWP robbery. Given the mitigating impact of his guilty plea and his limited criminal record, and what Mr. Snyder admitted to, I would say that, in terms of parity, Mr. Lira’s sentence should clearly be more than seven years even though he was only found guilty of one armed robbery.

LEGAL PARAMETERS

[89] Mr. Lira was not charged with robbery with a firearm, but Ms. Batorska submitted that I should find that he used a prohibited weapon in committing the robbery. As already stated, I found that the Lira Rifle was in Mr. Lira’s possession at the time of the SWP robbery and that it was a prohibited firearm.

[90] On December 22, 2009, Mr. Lira was convicted of two counts of robbery and two counts of using a firearm during the commission of an indictable offence. On October 27, 2014, Mr. Lira was convicted of armed robbery using a firearm. Accordingly, Mr. Lira is subject to a minimum sentence for his robbery conviction of seven years pursuant to s. 344(1)(a)(ii) of the Criminal Code as he was when he was sentenced by MacDonald J. This seven-year minimum does not depend on whether the Lira Rifle was loaded at the time, but for the reasons already stated I have found that it was loaded. The maximum sentence for committing robbery while masked contrary to s. 351(2) of the Criminal Code is 10 years.

[91] Since this is Mr. Lira’s first conviction for possession of a prohibited firearm while knowingly not being the holder of a licence, there is no minimum sentence and the maximum sentence is 10 years, pursuant to s. 92(3)(a) of the Criminal Code. Since this is Mr. Lira’s second conviction for possession of a prohibited firearm with readily accessible ammunition, s. 95(2)(a)(ii) of the Criminal Code applies, but this section has been found to be unconstitutional: see R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 Finally, the maximum sentence for possession of a firearm while prohibited by court order is 10 years, pursuant to s. 117.01(3)(a) of the Criminal Code.

POSITIONS OF COUNSEL

[92] Ms. Batorska seeks a global 16-year sentence less a credit for pre-sentence custody. She breaks it down as follows: nine to ten years for the robbery convictions; one year concurrent for being masked; six to seven years consecutive for possession of the firearm, which she submitted was on the low end; and one year consecutive for breach of the s. 109 order. It is her position that the sentence imposed in this case should further the goals of denunciation, deterrence, and protection of the public and that in the absence of an exemplary sentence, Mr. Lira’s criminal behaviour will continue unabated. Ms. Batorska also requested certain ancillary orders which Mr. Mencel, on behalf of Mr. Lira, took no issue with.

[93] Mr. Mencel does not disagree that the goals of denunciation and deterrence are paramount, but he argued that Mr. Lira is still a young man who has taken positive steps while incarcerated to improve his education and that his rehabilitation is still important. It is Mr. Mencel’s position that a global sentence of nine to ten years be imposed and that the breakdown should be eight to nine years for the armed robbery; one year concurrent for being masked; and one year consecutive for the breach of the weapons prohibition order. He agrees with Ms. Batorska that a sentence of six to seven years for possession of the firearm is warranted but argued that it should be concurrent to the sentence for armed robbery as the two offences were part of the same transaction. It is his position that the fact that Mr. Lira was transporting the Lira Rifle in a suitcase throughout the community can be considered as an aggravating factor when sentencing him for the armed robbery. He argued that this is necessary in any event to avoid Mr. Lira being punished twice for possession of the same firearm. Given the significance of this issue, I asked counsel for further submissions, which I summarize below.

[94] Mr. Mencel also submitted that the Crown’s submission that a 16-year sentence be imposed would offend the “jump” principle, which provides that sentences for similar offences should increase gradually, since Mr. Lira’s last sentence for armed robbery was eight years. It is also his position that the sentence proposed by the Crown is unduly harsh and offends the principles of totality and restraint as provided for in s. 718.2(c) of the Criminal Code.

[95] The other significant difference in the positions of counsel is that Mr. Mencel argued that Mr. Lira should receive significant mitigation to his sentence, a “Duncan credit,” due to the conditions during his incarceration at the TSDC. As a result, it is his position that the sentence to be imposed on Mr. Lira should be the minimum sentence of seven years less a credit for pre-sentence custody (“PSC”), leaving just under 16 months to serve. He recommended that in addition a period of probation of three years be imposed so that Mr. Lira is supervised in the community and that terms be imposed requiring Mr. Lira to continue his education or training and seek counselling as directed.

PRINCIPLES OF SENTENCING

[96] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section and aim to achieve same with the sentence I impose. The objectives are denunciation, specific and general deterrence; the separation of offenders from society, where necessary; rehabilitation of the offender; reparation for harm done; and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. In addition, in imposing a sentence I must consider the principle of proportionality to the gravity of the offence and the degree of culpability of the offender in s. 718.1 and the applicable aggravating and mitigating circumstances relating to the offences as set out in s. 718.2 of the Criminal Code, including the principles of parity and restraint.

[97] The other principle to be considered in this case is the “jump” principle, which was stated in Borde, at para. 39. The step principle as set out by Rosenberg J.A. “cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past.” However, this principle has little application where the severity of the offender’s crimes “shows a dramatic increase in violence and seriousness”. In R. v. Courtney, 2012 ONCA 478, at para. 10, the court states that the rationale for this principle is that “successive sentences should be increased gradually”.

[98] In addition, I must consider the totality principle as codified in ss. 718.1 and 718.2(c) of the Criminal Code. Section 718.2(c) provides that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. In R. v. Milani, 2021 ONCA 567, 157 O.R. (3d) 314, the Court of Appeal stated that these sections provide that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender and that where consecutive sentences are imposed the combined sentence should not be unduly long or harsh.

SENTENCING CASE LAW

(a) Armed Robbery

[99] Ms. Batorska submitted that the range of sentence for armed robbery for a recidivist is eight years to life. There is only one case she provided where the sentence imposed was life: R. v. Stairs, 1994 ONCA 1396 (Ont. C.A.), but in that case the offender had committed six prior robberies and there were outstanding warrants for two other robberies. I do not agree that a life sentence is truly at the upper end of the sentencing range that is considered for guidance by trial courts although it clearly can be a fit sentence in certain circumstances.

[100] Mr. Mencel’s position as to the applicable ranges of sentence for the offences before the court is not far from Ms. Batorska’s. He submitted that the range of sentence for armed robbery for a recidivist is in the high single digit to low double digits which in my view is a more accurate statement of the range. He also submitted that in most cases the offender is simply charged with armed robbery and so there is no consecutive sentence for possession of the firearm used in the robbery or, if there is, the sentence is imposed concurrently. That seems to be true; however, usually that makes sense as the offender is arrested at the time of the robbery and the offender is found in possession of the firearm.

[101] The cases counsel referred to from our Court of Appeal that I found helpful include the following:

R. v. Shuman, 2021 ONCA 638

[102] The appellant pleaded guilty to seven counts of robbery with a firearm arising from bank robberies he committed in Ontario between 2010 and 2015. With respect to the totality principle, the court said, at para. 6, that the sentencing judge was clearly alive to the totality principle. While the Crown sought a penitentiary sentence of 17 1/2 years and the defence sought a sentence of 10 years, both parties asked for concurrent sentences to avoid a 28-sentence given the four-year mandatory minimum. There was no need for the sentencing judge to break down the global sentence because, as the defence conceded at the time of sentencing, all counts were identical, and the appropriate outcome was concurrent sentences.

R. v. Henry, 2019 ONCA 229

[103] This was an appeal from conviction and sentence for armed robbery with a fully loaded semi-automatic handgun pointed directly at the complainant. The sentence of eight years was upheld. The issue was whether the trial judge erred by failing to consider a gap in the offender’s criminal record. The Court of Appeal held, at para. 5, that the sentence was well within the appropriate range, given the serious nature of the offences and considering the appellant's lengthy criminal record, including another conviction for armed robbery.

R. v. Colasimone, 2018 ONCA 256

[104] The appellant was convicted of armed robbery of a bank with a box cutter. He had a lengthy criminal record, including a few convictions for armed robbery and he was on parole at the time of the robbery. The offender had a difficult childhood and suffered from substance abuse and other mental health issues. The court found, at para. 18, that he was driven to crime to feed his addiction. The trial judge imposed a sentence of 15 years for armed robbery. The Court of Appeal, at para. 18, found that this sentence was demonstrably unfit as it was not proportionate to the appellant’s individual circumstances and the crime. The sentence was varied to 10 years.

[105] The court went on to say, at para. 19:

Furthermore, while I am not suggesting that robbing banks (a crime which can carry with it a life sentence) is not serious, the index offence is not the most heinous assault on private property, particularly considering the “disguise” that was employed [sunglasses and a hat, with the hood up]. Nor would I suggest that robbing a bank armed with a box cutter is not frightening for the vulnerable employees. It is nevertheless a far cry from a robber armed with a semi-automatic or automatic weapon.

R. v. Lewis, 2009 ONCA 792

[106] This case involved a robbery of a convenience store with a sawed-off shotgun without gratuitous violence. The accused’s criminal record included a penitentiary sentence for possession of a weapon and breaches of recognizance. The sentence of nine years for robbery and possession of firearm offences was upheld.

[107] As Mr. Mencel pointed out, in this case the offender was sentenced on convictions of robbery with a sawed-off shotgun, having his face masked, and possession of a prohibited weapon without a licence or authorization. The sentence was simply a global nine years, concurrently on all, less a credit for pre-sentence custody although this was decided during an exchange between the sentencing judge and counsel following delivery of her reasons.

[108] I note as well, as applicable to the case before me, that the Court of Appeal stated, at para. 3, that “[t]his court has repeatedly said that robberies of convenience stores will attract heavy sentences. This offence particularly warranted a heavy sentence as the two accused went into the convenience store with a [loaded] sawed off shotgun.”

R. v. Carlson, 2002 ONCA 44928 (Ont. C.A.), leave to appeal refused, [2003] S.C.C.A. No. 363

[109] The appellant robbed a bank with a firearm, waving the firearm around and pointing it at an employee’s head. He had a lengthy criminal record, including three prior bank robberies and numerous offences involving violence. His sentence was 12 years for his last armed robbery. The appellant was sentenced to a global sentence of 21 years (17 and a half years after three and a half years’ credit for PSC): twelve and a half for armed robbery, three years consecutive for pointing a firearm, and two years consecutive for being masked with intent.

[110] On appeal the court held, at para. 20, that the sentence imposed was at the high end of the appropriate range but that they had not been persuaded that it was manifestly unfit or that the trial judge committed any error in principle. The court noted that the appellant was an “institutionalized career criminal”, was an extremely dangerous man who posed a serious threat to society, had a psychiatric condition that was untreatable, had unresolved substance abuse problems and showed no remorse or insight into his criminal conduct or psychiatric problems. In this case the trial judge had described the appellant as “one of the most, if not the most, frightening individual[s]” that he had ever dealt with in his lengthy career. No issue was raised with respect to the fact that the convictions for pointing a firearm and being masked were made consecutive.

R. v. Gagne, 1998 ONCA 1778 (Ont. C.A.)

[111] The appellant was convicted of two counts of robbery of two cashiers at a food store. He was armed with a loaded AK-47 and his co-accused was armed with a sawed-off shot gun. Both were masked. The appellant was relatively young—22—and he instigated the offence and its planning. His criminal record included offences involving firearms, taking property with the use of a firearm, and assault with a weapon.

[112] The Court of Appeal upheld his sentence of 10 years (concurrent on each count of robbery), finding that the sentence was not clearly unreasonable or demonstrably unfit and was within the appropriate range having regard to the appellant’s criminal record and the nature of the offence, which involved armed and masked robbers at a time and in a location that exposed many people to the risk of serious harm.

[113] I was also referred to some decisions from the Superior Court and found the following to be helpful.

R. v. Armstrong, 2019 ONSC 4059, per Lacelle J.

[114] The offender initiated and planned a robbery of a Shoppers Drug Mart while armed with a box cutter and with his face masked. He committed the robbery with another man. He was on parole at the time. The value of the drugs taken was approximately $9,500 to the pharmacy owner and included oxycodone, morphine, hydromorphone, dilaudid and fentanyl (248 patches). The street value was estimated at about $167,500. The offender was 32 years old and had had a very traumatic childhood. His criminal record included two penitentiary sentences: convictions for violence and driving offences, including two convictions for robbery to fuel his addictions for which he was sentenced to a five-year sentence. Lacelle J. concluded, at para. 43, after considering the totality principle and the remnant of the sentence the offender was currently serving, that a global sentence of eight years for the robbery while armed with a knife conviction was appropriate.

R. v. Jack, 2011 ONSC 4397, per Belobaba J.

[115] The 26-year-old offender was convicted of two counts of armed robbery. He entered a car rental agency, pointed a handgun at the head of an employee and robbed the employee and his friend. He had a lengthy criminal record, including four robberies, three of which involved violence. Justice Belobaba, at para. 15, acknowledged the force of the Crown’s submission that the appropriate sentence should be 12 years, noting the offender’s lengthy criminal record, the regularity of his criminal activity and resulting incarceration, the fact that the offender was on parole when he committed the fifth robbery; the obvious impact of having a gun shoved at one's head even though the two complainants did not file victim impact statements, and the fact that the offender did not appear to accept responsibility for his actions but, rather, attributed his criminal lifestyle to his fatherless childhood and to his being “cursed.” Belobaba J. also acknowledged that the offender was still a young man; had been a good inmate, intervening in a jail fight to save another inmate; was trying to complete his education; believed that he had changed for the better; and wanted to be a good husband and father. The offender was sentenced to 10 years concurrent on each robbery. This is an example of a case where there was no separate charge for possession of the handgun.

(b) Possession of a prohibited firearm

[116] Ms. Batorska submitted that the range of sentence for possession of a prohibited firearm given Mr. Lira’s criminal record, which includes prior firearms convictions, is six to nine years and so she argued that the sentence she seeks is at the low end of the range. Mr. Mencel submitted that the range for simple possession of a firearm is six to seven years but that the sentence for possession of a firearm for Mr. Lira should be concurrent to the sentence on the robbery offence, not, as argued by Ms. Batorska, consecutive.

[117] Setting aside whether the sentence should be concurrent or consecutive, the decision of Justice Code in R. v. Graham, 2018 ONSC 6817, aff’d 2020 ONCA 692, is instructive. After reviewing relevant caselaw he concluded that in the case of s. 95 recidivists who breach s. 109 orders the appropriate range of sentence is six to nine years. Although the Court of Appeal has not expressly set out a range, cases such as R. v. Camara, 2021 ONCA 79 and R. v. Ellis, 2016 ONCA 598, 132 O.R. (3d) 510 support this range. As the Court of Appeal said in R. v. Omar, 2015 ONCA 207, at para. 8, “[t]he range of sentences is most significantly affected by growing judicial recognition of the reality of gun crime, as it should be.” Of course, since 2015, despite stiff sentences imposed by this court, gun crime in Toronto continues to rise.

(c) Consecutive or Concurrent

[118] At my request, counsel reattended to make submissions on whether the sentence for possession of a firearm should be consecutive or concurrent to the sentence for armed robbery. My decision on this issue does not affect the global sentence to be imposed because whether consecutive or concurrent sentences are imposed, the totality of the sentences imposed is what ultimately matters.

[119] Section 718.3(4)(b) of the Criminal Code provides that a sentence should be imposed consecutively when it does not arise out of the same event or series of events.

[120] In R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 155, the Court stated that “the general rule is that offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are to receive consecutive sentences”.

[121] Ms. Batorska submitted that based on the caselaw, in addition to the wording of s. 718.3(4)(b) of the Criminal Code, there are two principles that apply as to when a sentence should be ordered to be served consecutively to other sentences:

a) if the two offences reflected “distinct wrongs”: see R. v. Abbasi, 2016 ONCA 219, at para. 18;

b) the offences constitute “invasions of different legally protected interests”: R. v. Fournel, 2014 ONCA 305, at para. 58, citing R. v. Gummer, 1983 ONCA 5286 (ON CA), [1983] O.J. No. 181 (Ont. C.A.), at para. 13.

[122] Ms. Batorska argued that based on both the wording of s. 718.3(4)(b) of the Criminal Code and these principles, the sentence for possession of a firearm should be imposed consecutively. Mr. Mencel did not disagree on the applicable law but submitted that possession is a continuing offence as Mr. Lira had the firearm for a period of time. His continued possession of the firearm, from the time he used it in the SWP robbery to the next day when he was arrested, should be treated as an aggravating factor in his sentence for armed robbery.

[123] There is merit in both positions. The question before me is very similar to the dilemma faced by MacDonald J. when he sentenced Mr. Lira in 2014, but in that case there were two different firearms involved and the offences were just over a year apart, and so I do not believe that there could have been any dispute that ordinarily the sentences would have been imposed consecutively.

[124] With respect to the offences before me, certainly, as Mr. Mencel submitted, the offences could be considered part of the same “criminal adventure” or “one continuing crime operation”; see R. v. Dass, 2008 ONSC 13191 (Ont. S.C.), at para. 115. However, I have concluded that but for the principle of totality, Mr. Lira’s sentence for possession of the firearm should be imposed consecutively to his sentence for armed robbery. The robbery ended when Mr. Lira left the SWP. He was in possession of the Lira Rifle during the robbery to threaten those present and to intimidate them so that he could steal cash and drugs. Had he been arrested right after the robbery and found in possession of the Lira Rifle then clearly the sentence on any possession charge would be concurrent. His sentence for armed robbery would aim at stigmatizing and penalizing the theft accompanied by threatening use of a weapon engendering fear and intimidation.

[125] But that is not what happened. After the armed robbery and on the next day, Mr. Lira was observed travelling with the Lira Rifle. As Ms. Batorska submitted, by doing so he endangered every single person he met. This transport had nothing to do with the SWP robbery. He was transporting the Lira Rifle to meet someone for a purpose unknown. The sentence for this offence aims at stigmatizing the unlawful possession of the firearm and the dangers of transporting it in the community. I have concluded that a consecutive sentence is not only in the public interest to ensure that Mr. Lira’s record discloses the seriousness of this conviction, but it also brings home the seriousness of this offence. As the court said in R. v. McCue, 2012 ONCA 773, at para. 20: “A concurrent sentence denigrates the significance of the mischief charge and suggests that it is not in and of itself worthy of punishment.”

[126] Counsel are both in agreement that the sentence for breach of the weapons prohibition order should run consecutively. This is consistent with the principles referenced by Ms. Batorska.

(d) The Duncan Credit

[127] What has been referred to as the “Duncan Credit” based on R. v. Duncan, 2016 ONCA 754, was overhauled in the recent decision from the Court of Appeal in R. v. Marshall, 2021 ONCA 344. Doherty J.A. pointed out, at para. 50, that the Summers[^1] credit “already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody” and that the purpose of the Duncan credit is to address “exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody.” In that paragraph, Doherty J.A. noted that “[t]he very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a ‘Duncan’ credit”.

[128] However, contrary to the past practice on sentencing that had developed with respect to the Duncan credit, Justice Doherty, at para. 52, made it clear that:

The “Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[129] Justice Doherty also observed:

Often times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk the "Duncan" credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated in that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed. [Emphasis added.]

[130] In R. v. Bristol, 2021 ONCA 599, the Court of Appeal on a sentence appeal dealt with a claim for a Duncan credit. The court considered the lockdown records and reduced the global sentence imposed by the trial judge from ten years to seven years, stating, at para. 12:

In deciding on seven years as the appropriate sentence we have included a Duncan credit for these periods of lockdown. As noted in R. v. Marshall, 2021 ONCA 344, at para. 52, the Duncan credit is ‘not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence’.

[131] I conclude from Marshall that I should consider any Duncan credit as a mitigating factor in determining sentence, and that calculation of a specific number of months is discouraged. For this reason, I do not intend to specify an exact number of days of credit for the conditions at the TSDC.

ANALYSIS

[132] I turn to my determination of what is a fit sentence in this case for the crimes committed by Mr. Lira. Although the sentencing cases I have referred to are of assistance in providing some guidance as to an appropriate sentence, particularly those from our Court of Appeal, the sentence in this case to be imposed on Mr. Lira must be considered on the specific facts of this case.

(a) Aggravating Factors

[133] Many of the aggravating factors that were considered by MacDonald J. when he sentenced Mr. Lira in October 2014 still apply and I will restate them where applicable. I find that for all these offences the aggravating factors to be considered are as follows:

a) Mr. Lira had a loaded firearm—the Lira Rifle—in the pharmacy. Even if he had no intention of shooting anyone, he created a very dangerous situation by pointing it at Ms. Takla, Ms. Catay, and the volunteer behind the pharmacy counter. He also created a dangerous situation by using the rifle to threaten and intimidate those in the pharmacy whom he rounded up. Further, he could have used it had anyone attempted to interfere with the theft—the only reason to have brought the Lira Rile into the pharmacy loaded.

b) Mr. Lira then transported the firearm in a suitcase, along with the loaded magazine in a separate compartment, for an extended period of time. He took that suitcase into the community, driving with the firearm in the trunk of the stolen Honda, walking on the street, riding the subway, entering 22 Varna (an apartment building), and taking it into Ms. Bigus’ apartment. The next morning he left 22 Varna with the suitcase containing the Lira Rifle and he brought it once again into the community while taking it to a McDonald’s where he was going to turn it over to someone else. Although the firearm was not loaded, the magazine was and Mr. Lira could access it and quickly load the firearm by simply clicking the magazine into the rifle, creating a very dangerous situation for all the members of the public he encountered.

c) Robbery is a very serious offence, which is why Parliament has chosen to provide a maximum sentence of life imprisonment. This is the fourth time that Mr. Lira has been convicted of robbery.

d) Ms. Batorska also referred to Hill J.’s statement in R. v. Williams, 2018 ONSC 5409, at para. 35, citing R. v. Avis, [1997] EWCA Crim 3423 (Eng. & Wales C.A. (Crm.), at paras. 2 and 5, that “[p]ossession of a firearm which has no lawful use (such as a sawn-off shotgun) will be viewed even more seriously than possession of a firearm which is capable of lawful use.”

e) Mr. Lira used the Lira Rifle in the robbery of the SWP. As already stated, he pointed it at Ms. Takla, Ms. Catay and a volunteer to control them while he and his accomplice stole cash and medications. This conduct was clearly a terrifying experience for these women and for the customers in the pharmacy at the time who Mr. Lira rounded up while he was masked and holding the Lira Rifle.

f) I agree with Ms. Batorska that complainants in a pharmacy robbery share a common vulnerability with clerks of convenience stores and gas stations who are robbed late at night. They are often alone, with access to cash, and the inability to defend themselves from anyone who preys upon them. As MacDonald J. stated when he sentenced Mr. Lira for robbery, an aggravating factor is that business operators and their employees are entitled to carry on their legitimate commercial activities without being subjected to the threat of gun violence, extortion, and theft.

g) The robbery was carefully planned by Mr. Lira. He created Google Maps Street View images of the building where the SWP is located and the surrounding area on his cell phone, just hours before the robbery.

h) The robbery was not opportunistic. Mr. Lira had ample time to think about what he and his accomplice were going to do.

i) As part of the planning, Mr. Lira and his accomplice were masked. This is the third time that Mr. Lira has been convicted of committing an indictable offence while masked.

j) This was a reasonably sophisticated robbery in terms of steps taken to avoid being caught. Although I did not find that the stolen Honda was used as a getaway car for the robbery, it was clearly part of the plan and used in connection with the robbery of the SWP as medications stolen from that pharmacy were found in the vehicle. Mr. Lira and his accomplice also changed their clothing immediately after the robbery to further evade police.

k) Mr. Lira was motivated by greed, not, for example, by an addiction to drugs. The purpose of the robbery was to obtain cash and medications that Mr. Lira and his accomplice intended to sell to others.

l) Mr. Lira has a related criminal record for use of a firearm in the commission of an indictable offence both in 2009 and in 2014 and a weapon possession conviction in 2008.

m) Mr. Lira had the firearm in his possession in breach of a lifetime s. 109 prohibition order. He also has a lengthy record of failure to comply with court orders or conditions of an undertaking or a recognizance, which demonstrates a flagrant disregard for the law and its constraints.

n) Mr. Lira has a serious criminal record both in number and nature of offences, commencing at a young age. The only gaps appear to be because of times when Mr. Lira was incarcerated. As MacDonald J. observed, by the time Mr. Lira had turned 19, he had accumulated 25 youth court convictions in the span of less than three years. Further, the sentencing principles found in the YCJA had achieved nothing in terms of reforming Mr. Lira’s criminal propensities, rehabilitating him, deterring him from further criminal conduct, or contributing to his respect for the law and for other people.

o) While Mr. Lira has never been convicted of any offence involving physical violence or physical injury to another person, there is a substantial component of threats, menace, and risk to others in his criminal behaviour, including the robbery offence before this Court. In addition, many of the misconducts while incarcerated involve assaults and fights.

(b) Mitigating Circumstances

[134] I turn now to the mitigating circumstances relevant to sentence.

[135] There was no gratuitous violence used in the SWP robbery and as already stated, despite his lengthy criminal record, Mr. Lira has never been convicted of any offence involving physical violence or physical injury to another person.

[136] At the time of these offences, Mr. Lira was 27 years old. He is now 30. Although Mr. Lira is still young, given his lengthy criminal record I would not say his age is a significant mitigating factor.

[137] Mr. Lira cannot be penalized for insisting on his right to a trial, but he does not get the benefit of a reduced sentence because of a guilty plea. However, several agreements were reached between counsel during the course of the trial which resulted in the trial being run efficiently. As Mr. Mencel pointed out there had to be a trial as Mr. Lira was acquitted of the remaining charges. He also submitted that at the conclusion of the trial Mr. Lira accepted responsibility for possession of the Lira Rifle and invited convictions on the relevant firearms charges; however, since he was caught red handed with the Lira Rifle, this in my view does not show any remorse. There is no evidence on sentencing that Mr. Lira has accepted responsibility for his actions or expressed any remorse with respect to the SWP robbery, although I appreciate that he may want to preserve a right of appeal. In my view, these are all neutral factors.

[138] I have considered Mr. Lira’s upbringing and the fact his father abandoned the family when he was eleven years old, which I appreciate must have been very difficult for Mr. Lira. However, his mother is clearly a strong influence and a good role model, as are his two siblings who are going to university and staying out of trouble. Mr. Lira did attribute the lack of a father figure to him starting to associate with bad influences and I accept that may be why he offended as a youth. Nevertheless, as Justice MacDonald pointed out, Mr. Lira’s time in the youth justice system—which is focused on rehabilitation—did nothing to deter him from further criminal conduct or to contribute to his respect for the law and the community. Mr. Lira testified that once he was in prison he was surrounded by bad influences and that his lengthy time in the penitentiary made him worse and did not deter him from committing further criminal offences. I have no doubt that that is true, but he is an intelligent man and there is no evidence that he has any mental health issues or addictions. Over the years he has had ample opportunity to appreciate the consequences of his actions. I therefore do not believe that Mr. Lira’s continued criminal behaviour can be attributed to his upbringing or lack of a father figure.

[139] However, the fact that Mr. Lira has very strong supports in his family, particularly his mother and his fiancé and in the community is a mitigating factor. The plan with the Prosper program is to provide continuing support in his transition to the community. Mr. Lira has also secured employment upon his release, which will hopefully mean he will not be tempted to commit crime to obtain funds to support his family.

[140] With this evidence in mind, I must consider to what extent Mr. Lira is capable of being rehabilitated and his risk of reoffending upon his release. His criminal record makes it clear that to date he has not been deterred from criminal activity even despite the eight-year penitentiary sentence imposed by MacDonald J. Ms. Batorska argued that Mr. Lira is not a changed man as he has suggested to this Court. It is her position that he expressed the same sentiment to me as he did to Justice MacDonald seven years ago and that he has not changed since. She submitted that the charges before the court stem from the very same behaviour he was convicted of in the past and that the sheer number of misconducts while incarcerated shows—contrary to any claim by Mr. Lira that he has changed—that he is the same man he was in 2014.

[141] However, a few important things have changed since Mr. Lira was sentenced by Justice MacDonald. He has obtained his high school equivalency diploma by completing three high school correspondence courses earning marks ranging from 85% to 94%. He has also completed four college courses—three with a grade of A and one with a grade of A+—and he only has three more courses to finish to fulfill the requirements for the “Business Management – Marketing” certificate. He is clearly an intelligent man.

[142] Most significantly, Mr. Lira testified that his plan to marry Ms. Wolf and the birth of his daughter in November 2018 has motivated him to live a productive life free of crime. He wants his daughter to know her father, unlike his experience of his father abandoning his family when Mr. Lira was eleven. I accept this could be a strong motivator provided Mr. Lira really intends this time to stay away from bad influences.

[143] I was also impressed by the letter from Mr. Lira’s mother, Ms. Lainez. She obviously has strong negative feelings about Mr. Lira’s past criminal behaviour; as she stated, she didn’t come to Canada for her son to throw away his life and did not raise him to be a “degenerate”. She does not accept that her son’s reaction to his father abandoning the family could be an excuse for him choosing this path. Like Mr. Lira and his fiancé, Ms. Lainez tells me that there has been a change in Mr. Lira, something she never saw or felt before. Ms. Lainez says that he has found purpose and motivation in life through his fiancé and daughter. She believes this new responsibly of marriage and fatherhood has directed him towards the right path. Her opinion gives me some confidence that what he sincerely believes is what he told me and that he intends to live a productive and crime-free life. I accept that there is now a reasonable chance that Mr. Lira will do as he says. Contrary to the conclusion Justice MacDonald came to, Mr. Lira has taken conclusive steps in the direction of a responsible, productive, and non-criminal lifestyle. He also has a strong motive to do so and with employment will have an income to support his family.

[144] Finally, in accordance with Marshall I must consider whether Mr. Lira is entitled to some mitigation of sentence for a “Duncan credit” to address any exceptionally punitive conditions that he has endured beyond the normal restrictions associated with pretrial custody, which can include the very restrictive conditions at the TSDC and the health risks brought on by COVID-19.

[145] Ms. Batorska argued that the purpose of the Summers credit is give credit for the loss of remission but that Mr. Lira’s misconducts may have meant that he would not otherwise have qualified for early remission. She did not suggest that he should not get the Summers credit but rather that I keep this in mind when considering whether there should be any further credit. Mr. Mencel submitted that it is possible that Mr. Lira would have lost some earned remission but that I must be careful not to double count. He accepted that I could possibly rely on the misconducts to give less of a Duncan credit, but it should not also affect the Summers credit. I agree.

[146] The history of unacceptable conditions at the TSDC is well-documented in the caselaw. Justice Schreck set it out comprehensively in R. v. Persad, 2020 ONSC 188. That case was heard near the end of 2019. The record in this case and others shows that little has changed since Persad was decided despite courts giving significant credit because of these harsh conditions. That said, I expect that the pandemic has put additional strain on the TSDC that has been difficult to manage.

[147] Mr. Lira has been incarcerated at the TSDC since March 1, 2018 for almost three years and ten months. I have the lockdown evidence of the number of days where there was a full or partial lockdown while Mr. Lira was incarcerated, the Misconduct Summary, and the evidence of Mr. Lira. Mr. Mencel submitted that of the 1365 days that Mr. Lira has been incarcerated, up to the point of the sentencing submissions, there were lockdowns on 565 of those days which represents just over 40% of his time in jail. He advised that this calculation included every day where there was a full or partial lockdown, regardless of where Mr. Lira was at that time.

[148] Although Marshall discourages quantifying a Duncan credit, that was the focus of Mr. Mencel’s submissions. He argued that these lockdowns and the harsh conditions at the TSDC, particularly during COVID-19, justify a mitigation in sentence of two to three years. He later suggested an additional credit of 1:1.5 days applied to the 565 days of lockdowns, which would result in a deduction of 848 days, which is about two years and five months. He went on to submit that the credit should be even greater considering the impact of COVID-19, which made the conditions more severe.

[149] What is clearly relevant from the record of misconducts is how it impacts the claimed Duncan credit. Mr. Lira’s punishment for many of his misconducts were days to be spent in segregation or closed confinement and the Behavioural Care Step Down Unit (“BCSD-U”). In segregation Mr. Lira would have been secured in a single occupied cell and offered time out of the cell daily and access to a shower every other day. In the BCSD-U inmates are only allowed out of their cells in groups for two to four hours every other day and the unit is secured for the night with inmates in their cells at 4:30 pm. If they display positive behaviour, they have a little more time out of their cells and the unit is secured at 6:00 pm. I appreciate that if there was a lockdown that even these limited privileges could be impacted but to what extent I do not know.

[150] By my calculation Mr. Lira was sentenced to 41 days in segregation/closed confinement and 324 days in the BCSD-U. Mr. Mencel admitted that the 41 days likely should not count for the Duncan credit but for the rest, he submitted that a very significant number of the lockdowns were due to staff shortages and that they would have impacted Mr. Lira wherever he was. I have really no evidence that that is the case, other than inferences. Further, in my view, during these 365 days (equivalent to a year while in custody), it can be said that Mr. Lira, unlike other inmates, would not have been materially impacted by lockdowns or even COVID-19, as his privileges were already severely impacted as a result of the misconducts.

[151] However, I do accept that for the other almost three years, while in custody Mr. Lira was impacted by the exceptionally harsh conditions at the TSDC due to lockdowns and the pandemic. He has provided evidence about how this impacted him and the other inmates. It also interrupted his efforts to continue his education and his work with Pastor McTague and no doubt his efforts with the Prosper program. There was also the significant impact from the limited opportunities to communicate with family and the stress and fear due to the enhanced risk of a congregate setting during COVID-19.

[152] I will consider these impacts on Mr. Lira’s time in custody as a significant mitigating factor. However, as I have already stated, in accordance with Marshall, I do not intend to do a mathematical calculation as suggested by Mr. Mencel.

(c) Summers Credit

[153] Counsel agree that to the date of the first sentencing submissions, November 24, 2021, Mr. Lira spent 1365 days in custody and that he is entitled to a Summers PSC of 1.5:1 resulting in a credit of 2,048 days or five years and seven months. To today’s date the days in custody has increased by 23 days resulting in an additional credit of 34.5 days, rounded up to 35 days, bringing the total days in custody to 1,388 and the PSC to 2,083 days or 5.7 years or 5 years and 256 days which, by my calculation, results in a PSC now of five years and eight- and one-half months.

(d) Determination of a Fit Sentence

[154] Considering all the aggravating and mitigating factors, I must now determine what is a fit sentence. There can be no doubt that the sentence imposed on Mr. Lira for robbery while armed with the loaded Lira Rifle and possession of the Lira Rifle must further the sentencing goals of denunciation, general and specific deterrence and protection of the public: R. v. Brown, 2010 ONCA 745, at para. 14. The courts at this level and our appellate courts have repeatedly spoken out about the prevalence of firearms, particularly in the Greater Toronto Area, and the reality that this results in serious injury and death. Gun crime continues to be a serious problem in Toronto despite the courts imposing significant sentences. As Akhtar J. stated in R. v. McNichols, 2020 ONSC 6499, at para. 38, this message is not being heard.

[155] The primary goals of the sentence I must impose are denunciation, deterrence, and the protection of the public. While I must not ignore any rehabilitative potential for Mr. Lira, in the circumstances this must be secondary to these primary goals.

[156] I have two options in determining a fit sentence. In Friesen, at para. 157, the Supreme Court described the two methods that are used by courts across Canada to apply the totality principle when imposing consecutive sentences. Some jurisdictions require the sentencing judge to decide what would be a fit sentence for each offence before considering totality. The Ontario practice, however, was described as one of first determining the total appropriate sentence and then breaking it down among the counts. Neither method constitutes an error in principle. If done properly, both can be appropriate ways to ensure that the total sentence is not overly long and harsh and not disproportionate to the gravity of the offence and the conduct of the offender: see Milani, at para. 36.

[157] It seems to me that to determine the total appropriate sentence I must first consider the guidance from the Court of Appeal in the cases counsel have referred to as to what the range of sentence is for each of the offences and then consider the aggravating and mitigating factors specific to this case and the principle of totality.

[158] As already stated, the range of sentence for armed robbery for a recidivist is in the high single digit to low double digits. This is the fourth time that Mr. Lira has been convicted of robbery. The last time when he was sentenced by MacDonald J. in October 2014 he was also being sentenced for an armed robbery while masked—the very same conduct as in the case before me. However, in that case, significantly unlike this one, there was no finding by Justice MacDonald that Mr. Lira was carrying the firearm and that the firearm that was used was real; the firearm was treated as an imitation firearm for the purpose of sentencing. Justice MacDonald sentenced Mr. Lira to seven years for the robbery conviction, which he stated was the shortest sentence of imprisonment he could impose.

[159] In the case before this Court, there are two significant differences. First, Mr. Lira was the one in possession of the firearm and brought a loaded and operable sawed-off shotgun—the Lira Rifle—to the robbery of the SWP and he travelled with it in the community for an extended period. Secondly, in 2014, when Mr. Lira was being sentenced by MacDonald J., he benefited from the fact that he was only 19 at the time he committed the offences, he had not served a substantial adult sentence, and had not been to the penitentiary. Although Justice MacDonald did not believe there was much of a potential for rehabilitation given Mr. Lira’s youth, he made it clear that he was guided by Borde, at para. 36, to determine the shortest possible sentence that would achieve the relevant objective of specific deterrence and that he should not give prominence to the objectives of denunciation and general deterrence. In my view, at this time the law is clear that rehabilitation must be secondary to the goals of denunciation and general and specific deterrence. I therefore do not agree that the jump principle has much application at this time, although I must still consider the principles of restraint and ensure the total sentence is not unduly harsh.

[160] I now must sentence an older Mr. Lira who should have been deterred by the lengthy sentence imposed by MacDonald J. and his time in the penitentiary but unfortunately was not. Furthermore, I have found that this time he was the one in possession of the firearm and it was loaded and operable. In my view, a fit sentence for the robbery while using the Lira Rifle, considering all the aggravating and mitigating factors I have mentioned, including a consideration of the potential for rehabilitation that was not present when he was before MacDonald J., and without considering the principle of totality or the Duncan credit, would be a sentence of nine years—a sentence that is two years more than the sentence on the robbery imposed by MacDonald J.

[161] Both counsel agree that the sentence for committing the robbery while masked should be an additional year but to be served concurrently to the sentence on the robbery conviction.

[162] As for possession of the Lira Rifle, for the reasons I have already expressed, in my view the sentence imposed should be consecutive to reflect the seriousness of this offence. I have difficulty with Mr. Mencel’s suggestion that the fact that Mr. Lira transported the Lira Rifle out in the community after the SWP robbery until the next day when he was arrested should be treated as an aggravating factor to the robbery offence. In the circumstances were it not for the principle of totality, and without considering the Duncan credit, I would impose a sentence of six years to be served consecutively to the armed robbery conviction.

[163] Finally, counsel agree that a sentence of one-year consecutive ought to be imposed for Mr. Lira’s breach of the prohibition order. This is more than reasonable and in fact a sentence of 18 months consecutive could be justified given that this is Mr. Lira’s second breach and that he was sentenced by MacDonald J. to one year for his first breach. That and his record for numerous breaches of other court orders suggests that Mr. Lira has little respect for court orders. However, I will impose the sentence of one-year consecutive that both counsel submit is fit. This year, however, must be considered as part of the total sentence.

[164] This would bring me to a total sentence of 16 years, as submitted by Ms. Batorska, save for consideration of the Duncan credit. However, I must consider the totality principle as codified in s. 718.2(c) of the Criminal Code that provides that when consecutive sentences are imposed the combined sentence should not be “unduly long or harsh”. Ms. Batorska argued that a 16-year sentence already reflects the totality principle but in my view that sentence would offend the jump principle. Furthermore, some serious consideration must be given to the fact that such a sentence would punish Mr. Lira twice for possession of the same firearm – the Lira Rifle – used in the robbery and found in his possession at the time of his arrest.

[165] That leaves the question of what is a fit total sentence. Despite Mr. Lira’s criminal past and the convictions before this Court, because of the changes Mr. Lira has made while in the difficult circumstances of custody at the TSDC and more importantly his relationship with Mr. Wolf and the birth of his daughter, the fact that he has a good job waiting for him upon his release, and his strong family and community support, I believe that Mr. Lira has good prospects for rehabilitation. He has a very good chance of living up to his stated desire of avoiding bad influences and of leading a productive life upon his release.

[166] I have no doubt that the sentence proposed by Mr. Mencel would assist Mr. Lira’s reintegration into the community, and that three years of probation would be helpful to keep Mr. Lira on the correct path. However, although Mr. Lira’s rehabilitation is important, it must be secondary to the need to address denunciation and general deterrence given the crimes he has committed. The sentence proposed by Mr. Mencel would fall too far short in that regard in my view.

[167] I have also concluded that Mr. Lira should receive some mitigation of sentence due to the impact of the exceptionally harsh conditions at the TSDC due to lockdowns, which unfortunately continue to persist, and the limitations and risks brought about by the pandemic save for the year Mr. Lira spent in segregation or in the BCSD-U.

[168] In my view, considering all the aggravating and mitigating factors I have mentioned, including a consideration of the potential for rehabilitation and the mitigating factor of conditions while incarcerated in accordance with Marshall, a global sentence of 10 years is fit. This means that some of the sentences on the individual convictions will have to be adjusted downwards so that combined they equal this total sentence, but I emphasize that I do so only because of the principle of totality. My reasons are clear as to what sentences I would have imposed but for that principle.

[169] From the total sentence of 10 years (120 months), Mr. Lira is entitled to a Summers credit for PSC in the amount of five years and eight- and one-half months (68 ½ months), leaving 51 ½ months to serve or four years and three- and one-half months.

DISPOSITION

[170] Mr. Lira, for the reasons I have given, I sentence you as follows.

[171] With respect to your conviction on Count 16 – robbery of Irene Takla, I sentence you to eight years.

[172] With respect to your conviction on Count 17 – robbery while having your face masked, I sentence you to one year to be served concurrently to your sentence on Count 16.

[173] With respect to your conviction on Count 18 – possession of a prohibited firearm while knowingly not being the holder of a licence, I sentence you to one year to be served consecutively to your sentence on Count 16.

[174] With respect to your conviction on Count 19 – possession of a prohibited firearm with readily accessible ammunition that is capable of being discharged in the firearm, I sentence you to one year to be served concurrently to your sentence on Count 18.

[175] With respect to your conviction on Count 20 – possession of a firearm while prohibited by court order, I sentence you to one year to be served consecutively to your sentence on Count 18.

[176] As a result, your total sentence is 10 years. After giving you a Summers credit for pre-sentence custody of five years and eight- and one-half months to be applied to your global sentence, you have four years and three- and one-half months remaining to be served.

[177] Mr. Lira, I also make a DNA order in Form 5.03 authorizing the taking of a DNA sample on the primary ground pursuant to s. 487.051(1) of the Criminal Code as robbery is a primary designated offence and pursuant to s. 487.051(3) on the secondary ground as your convictions on Counts 18 and 19 are secondary designated offences.

[178] In addition, there will be a mandatory weapons prohibition order pursuant to s. 109(3) of the Criminal Code for life.

[179] Finally, there will be an order forfeiting the Lira Rifle including the magazine and ammunition pursuant to s. 491 of the Criminal Code.

Spies J.

Released: December 17, 2021

Edited Decision Released: January 4, 2022

COURT FILE NO.: CR-21-40000107-0000

DATE: 20211217

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

IVAN DAVID LIRA

Defendant

REASONS FOR sentence