COURT FILE NO.: CR-22-40000217 DATE: 20230821 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R. v. Kyle Francis, Defendant

BEFORE: S.F. Dunphy J.

COUNSEL: Cynthia Valarezo, for the Crown Brian Eberdt, Amicus Curiae Kyle Francis self-represented

HEARD at Toronto: June 12, 2023

CORRECTED REASONS FOR DECISION - Sentence [1]

[1] On April 4, 2023 I accepted Mr. Francis’ guilty plea on one count of robbery (s. 343 Criminal Code) and one count of administering a noxious substance to endanger life or cause bodily harm (s. 245(1)(a) Criminal Code). The charges arose from two jewelry store robberies conducted by an associate of Mr. Francis, Mr. Christopher Briscoe on February 5 and February 12, 2020. Mr. Briscoe conducted the two robberies on the plan and instructions of Mr. Francis who directed Mr. Briscoe as to the target jewelry stores and the items to be stolen, received the stolen goods and paid him a fee. Both robberies involved the use of violence, victims of both robberies having been sprayed with bear spray without warning. The value of the stolen goods was considerable – approximately $1.5 million. The charges arising from the first of the two incidents were withdrawn by the Crown in connection with Mr. Francis’ plea of guilty to the two remaining counts arising from second incident. The Crown’s agreement to withdraw those first charges was given upon Mr. Francis’ stipulating to agreed facts and video evidence of that first incident which admitted the essential elements of the two withdrawn charges for use as aggravating circumstances for sentencing purposes. This correction has been necessary because the first two charges were not formally withdrawn - an oversight that has now been corrected without any material impact upon the sentence handed down or the reasons given for it. Additions to the original text are noted in underlining, deletions not evident from the replacement text are contained in square brackets and so noted. Please note the original lifetime s. 109(3) order has been replaced by a 10-year s. 109(2) order.

[2] The plea was an open plea, there being no joint submission on sentencing. Mr. Francis was self-represented at his trial and for sentencing. I appointed Mr. Brian Eberdt as Amicus and a sentencing hearing was scheduled for June 12, 2023 in order to permit a pre-sentence report to be prepared, to provide amicus a period of time to become familiar with the matter and for Mr. Francis to prepare for his hearing. My decision on sentencing was reserved until July 31, 2023. Mr. Francis failed to appear on court on that scheduled day and I was advised that he had been admitted to hospital the prior day. The date for his sentencing was accordingly postponed until this day.

Circumstances of the offences

[3] The circumstances of the offences are set forth in an Agreed Statement of Fact which was the basis of the guilty plea and guilty plea inquiry conducted by me. In addition to the agreed facts, copies of the surveillance video from both robberies were made exhibits and viewed by me. The videos portray the two robberies and the violence inflicted upon the personnel in the two stores in close detail from several angles.

[4] The first robbery occurred on February 5, 2020 at the Berani Jewelry Design store. Mr. Briscoe entered the store and asked to see certain expensive watches. When told that he had to make an appointment to do so, he pulled out bear spray from his pocket and sprayed the security guard and then other employees working behind the counters. He then produced a hammer, smashed the display cases and made off with five watches valued at $500,000 in total. Mr. Francis accompanied Mr. Briscoe to the robbery in a car driven by another. He exchanged text messages and calls with Mr. Briscoe in the days prior including numerous images of high-end watches from which I infer beyond reasonable doubt that he helped plan the robbery with Mr. Briscoe and collaborated on the watches to “target”. Mr. Francis received the stolen goods and paid Mr. Briscoe a fee for carrying out the robbery. The charges from this first incident have been withdrawn subject to admissions of the facts establishing its essential elements that are relied upon by the Crown as aggravating circumstances.

[5] One week later on February 12, 2020, a second robbery was committed by Mr. Briscoe using much the same technique at a jewelry store named Johnny Watches. Mr. Briscoe used another can of the same batch and type of bear spray and was driven to the intended target by Mr. Francis. Text messages exchanged between Mr. Francis and Mr. Briscoe several days in advance outlined the plan. Mr. Briscoe entered the store of Mr. Ansari and asked to see a high-end watch. He then produced the bear spray and sprayed Mr. Ansari who fled to his nearby office and locked himself in. Mr. Briscoe proceeded to jump the counter and remove 25 high end watches valued at $1 million. While there was some disagreement about what Mr. Briscoe “earned” for his services in the days that followed, Mr. Francis received the stolen watches and paid Mr. Briscoe a fee. It seems that Mr. Briscoe may have retained one or two of this batch of stolen watches – the evidence being unclear on the point. While the agreed statement of facts included an agreement as to the value of the stolen goods, I am not satisfied beyond reasonable doubt that Mr. Francis received all of them in light of the text messages exchanged with Mr. Briscoe in the days following. I am however so satisfied as to the significant bulk of them.

[6] In the subsequent weeks, Mr. Briscoe was identified by police and arrested. Mr. Francis’ involvement soon emerged and he too was arrested. Seized cell phones outlined the communications between the two, including planning and disputes about the proceeds of the second robbery.

[7] The stolen watches have never been recovered. There is some unsworn and indirect evidence in the sentencing file regarding the amount of consideration actually received by Mr. Francis and paid by him to Mr. Briscoe. I have no reason to doubt the evidence which is contained in a narrative of information provided by Mr. Francis to Dr. Gojer and referenced in his March 18, 2021 report, but its second-hand nature is far from an ideal means of placing sentencing facts before me. For sentencing purposes, I am prepared to accept the indirect evidence of Mr. Francis that he received a total of $41,000 for the two batches of stolen watches and paid $18,000 by way of a fee to Mr. Briscoe. There is no dispute that Mr. Francis disposed of the watches to another and there is no evidence other than this second-hand evidence of Mr. Francis as to the gross or net proceeds received by him.

[8] The watches have not been recovered. Mr. Francis pled guilty at the outset of his trial.

Circumstances of the offender

[9] My information regarding Mr. Francis’ personal circumstances comes from the Pre-Sentence Report and the report of Dr. Gojer dated March 18, 2021 updated on January 4, 2022.

[10] In summary, Mr. Francis had some struggles in his school years and was diagnosed and treated for ADHD from Grade 5. He had ceased taking medication for this condition at the time of the offences. He left high school lacking one credit to graduate but has managed to complete that requirement while under house arrest and has enrolled in a program in Business Administration at Humber College which he has been attending virtually. Further progress in that course of study has been on hold since in-person classes resumed under his current release conditions. He had some employment experience prior to the offences and after leaving school which was interrupted to attend a rehabilitation program out of province.

[11] Mr. Francis’ substance abuse issues began in high school and intensified over time including abuse of marijuana and cocaine along with alcohol. He attended a rehabilitation program with some success, returning home in October 2019. However, within only a few months of his return, he started using again and stopped attending Narcotics Anonymous and Alcoholics Anonymous meetings. It was at this point that he became involved in the events that led to his arrest in early 2020.

[12] He has been under the care of Dr. Courtney at CAMH since 2017. He had been treated by a variety of psychiatrists from his childhood in respect of behavioural issues. and had been treated by a number of psychiatrists in prior years as well. Dr. Courtney has recently begun treating Mr. Francis for Bipolar Mood Disorder, Type 2 and he has been responding well to medication. Dr. Gojer recommended a community-based sentence and coupled with probation to permit continued treatment and therapy for his underlying conditions.

[13] Both parents communicated a strong belief that their son’s progress is directly related to his success in abstaining from alcohol and narcotics and expressed the view incarceration would be detrimental to their son.

Position of the parties

[14] The Crown seeks a custodial sentence of 21 months less one day of pre-sentence custody. The Crown submits that the proposed sentence fully recognizes all of the mitigating circumstances present including the relative youth of Mr. Francis, his lack of a prior record, his guilty plea, the circumstances of his mental health and substance abuse challenges and the progress he has made in addressing these while awaiting trial. The Crown submitted that its proposed sentence also recognized the mitigating circumstance of house arrest conditions given the fact that the general community was operating under Covid restrictions for much of the initial time frame, Mr. Francis never requested a variation of release terms and the terms of his release did not impede him from completing his high school diploma, maintaining his relationship with his girlfriend or attending the treatment and counselling sessions he followed to address his substance abuse and mental health issues.

[15] In addition to the proposed term of custody, the Crown seeks a term of two years probation plus the following ancillary orders (i) provision of bodily substance sample as a primary designated offence; (ii) s. 109 weapons prohibition for life; and (iii) a fine in lieu of forfeiture of $1.5 million pursuant to s. 462.37(3) of the Criminal Code. The Crown accepts the conditions of probation proposed in the Pre-Sentence Report plus requests conditions regarding proximity to the two robbed locations and non-communication with the named victims and a prohibition on being within 200m of any place any of them live or are known to be.

[16] Amicus Mr. Eberdt proposed that a conditional sentence would be appropriate in the circumstances of this case, suggesting a sentence to be served in the community of between 12 months and two years less a day with a period of probation to follow on terms substantially as suggested by the Crown. Mr. Ebert questioned the necessity of a term of probation as long as two years given the length of time Mr. Francis has been living under house-arrest release conditions without incident. Mr. Eberdt suggested that the fine in lieu of forfeiture sought by the Crown would be inappropriate in this case. The proposed fine (if unpaid, as seems a near certainty) would result in a term of five additional years imprisonment and would entirely change the nature of the sentence proposed at the time the guilty plea was accepted.

[17] Mr. Francis substantially adopted the submissions of the Amicus and presented a statement to me which was made an Exhibit. This statement highlighted the various mental health challenges he has struggled with since his youth and the progress he has recently made in addressing these with professional help.

Aggravating Circumstances

[18] I find the following aggravating circumstances have been proved beyond a reasonable doubt:

a. While the Crown has withdrawn counts 1 and 2 of the indictment in relation to the February 5 incident, the facts necessary to establish the essential elements of those offences have been admitted by Mr. Francis and proved by the other agreed sentencing exhibits. b. Both robberies involved violence. While the violence was inflicted by Mr. Briscoe who deployed bear spray liberally and without warning during the course of both robberies, Mr. Francis played a central and directing role in both robberies. The victims suffered significant harm and trauma. c. There is significant evidence of planning of both robberies. Mr. Francis recruited Mr. Briscoe to perform the robberies, selected the target stores to be robbed and clearly provided Mr. Briscoe with some directions as to the type of high-end items to be stolen. He accompanied him to one robbery and drove him to the second. Telephone and text message exchanges leave no room for doubt as to the degree of Mr. Francis’ involvement in planning. There was nothing passive about his role. It was central and directing.

Mitigating Circumstances

[19] The following mitigating circumstances must be taken into account in arriving at a fit and proper sentence:

a. Mr. Francis is a youthful first-time offender. He was 22 years of age at the time of the offences and 25 years of age today at the time of sentencing. His youth and lack of prior convictions are both mitigating circumstances which lend greater weight to the sentencing principles of rehabilitation and s. 718.2 (d) and (e) of the Criminal Code. b. He has struggled with mental health issues and substance abuse issues and has made substantial progress in dealing with both. Both prior to and since his arrest he has sought out and followed counselling and treatment programs for his mental health issues and for his substance abuse problems. He has been sober and has been following treatment for a diagnosed bi-polar disorder along with ADHD. c. He has a strong pro-social network to help him. He also has the support of his family who has played a significant role in seeing that Mr. Francis had the support and resources needed to follow the treatment and therapy programs prescribed, to maintain sobriety and to adhere to his release conditions. He has the benefit of a strong and committed family network that can assist him in continuing to build on these achievements. On the other hand, Mr. Francis has had the benefit of a supportive and caring family throughout his life. It is clear that his family has the ability to assist him but has not historically had enough moral authority over him to dissuade him from irresponsible life choices. d. He entered a guilty plea and has accepted responsibility for his actions and spared the victims of his crimes from having to testify and relive traumatic experiences. This mitigating circumstance is tempered somewhat by the late-breaking nature of his plea in the face of an overwhelming case, but it is nevertheless a positive development to be recognized. The mitigating circumstance is also tempered by the lack of any evidence of sincere remorse. He appears to wish to place the entire responsibility for his actions on his mental health struggles and substance abuse issues with little actual demonstration of remorse. He certainly showed no sign of regret in the immediate aftermath of the robberies. His phone shows evidence of planning a third robbery at the time of his arrest and a willingness to threaten his erstwhile accomplice when they were in a dispute about the fee Mr. Briscoe should be paid. e. He has lived under house-arrest conditions since his release from custody and there have been no recorded incidents of breach. While some credit on account of this factor must be considered, I am of the view that it bears relatively light weight in the circumstances of this case. The limitation on his freedom compared to other forms of release was mitigated for a portion of the time by the lock-down conditions applicable in the economy as a whole. The release conditions did not inhibit Mr. Francis from being able to pursue therapy and treatment for his addiction and mental health challenges and, to his credit, from making considerable progress on those fronts as well as pursuing his education. He chose to make treatment and education rather than working a priority – a choice that I do not quibble with in the slightest – and when work became possible he did not seek any variation in his release terms to accommodate it. Finally, he has not discharged his onus of actually putting evidence of hardship before me.

Victim impact statements

[20] The Crown filed two victim impact statements from some of the victims of the robberies. The violence and terror of the moment of an unexpected and violent incident is sometimes hard to grasp from the black and white of an agreed statement of fact or from viewing even good quality video from various angles without sound.

[21] Derek Hayward said that the incident left him with a loss of self-confidence considering retirement earlier than planned and feeling a state of constant insecurity and emotional stress even after retirement. He described the experience of being sprayed by bear spray which disoriented him. He said that he experienced an unbearable burning sensation of eyes, face, hands and indeed entire body with the pain lasting for at least three days. The damage to his eye required repair via cataract surgery.

[22] Carrie Ng said that she was given no time off work to recover from the trauma and eventually left her job. She had months of nightmares, she found herself in fear every time she saw a black man walking towards her (Mr. Briscoe was a black man). She suffered a variety of medical symptoms afterwards including IBS and an H. Pilori infection and finds that she has been unable to accept job offers. She has lost income and finds herself in a very challenging and stressful position attempting to recover from the incident.

[23] There were others in the store besides these two who provided statements. The impact on their lives has been profoundly negative and a fit and proper sentence must reflect a proper recognition of the harm done by the crimes before me.

Discussion and application of sentencing principles

[24] There was considerable debate between the Crown and Mr. Eberdt as to whether a conditional sentence is available on the facts of this case. Amicus pointed me towards several precedents where a conditional sentence was imposed. Having reviewed these, I remain unconvinced of the wisdom of applying a conditional sentence in the circumstances of this case.

[25] The fact that there is no express prohibition upon imposing a conditional sentence for these crimes does not mean that the statutory requirements for a conditional sentence in s. 742.1(a) can be satisfied in this or any particular case. In order to consider a conditional sentence, the court must be “satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing sent out in section 718 to 718.2”. On the facts of this case, I am not so satisfied.

[26] In R. v. Bedard, 2011 ONSC 3694, Pelletier J. found a conditional sentence to be a fit and proper sentence for a first-time young offender. The circumstances of that case were quite unlike the present case. The offender committed a single offence, was under medical care for physical and mental health conditions and at the time of the offence had overdosed on medications. His health conditions were such that incarceration posed a uniquely harsh form of punishment given the likely unavailability of adequate care and supervision appropriate for his condition.

[27] R. v. Thompson, 2009 ONCJ 359 involved a robbery committed without actual violence by a family man in financial distress who expressed great remorse and cooperated with police early in the process. A conditional sentence was found appropriate in the circumstances. R. v. Jodoin [2015] O.J. No. 2149 involved a single robbery with no weapon and no injuries sustained by any victim. R. v. Arsenault was a robbery case where a conditional sentence was imposed upon an offender with no prior record but where a co-accused with a serious record had received a conditional sentence and no actual violence or spoken words were spoken even if there was an implicit threat of violence.

[28] In considering the potential application of a conditional sentence under s. 742.1 of the Criminal Code, sight must not be lost of the fact that Mr. Francis committed not one but two planned robberies both of which involved significant degrees of actual violence. There was nothing “heat of the moment” about these offences.

[29] Mr. Francis’ mental health and addiction challenges must be considered but are not the only factors to be taken into account. Mr. Francis was not a passive participant in these crimes. He planned both crimes, recruited Mr. Briscoe and consciously did so to support his own lifestyle and addictions. Mr. Briscoe’s participation in these crimes was a direct result of Mr. Francis’ active involvement. These crimes cannot be laid at the feet of some kind of desperate plea for help of a young man in need of treatment. It is evident to me that Mr. Francis’ parents have tried all that patience and dedication could suggest in terms of attempting to help their son overcome the challenges he dealt with and he had relatively recently resumed the use of drugs after a period of treatment and sobriety. [2] This was not a cry for help – Mr. Francis did not turn himself in and did not cooperate with police when arrested. There is no evidence before me of any efforts on his part to help recover the stolen property.

[30] Mr. Francis has the benefit of a guilty plea accepted at the outset of his trial. This removed the necessity for his victims to relive the experience and is a positive indication of someone willing to take responsibility for his actions. However, I cannot pass from this subject without also remarking that I have not gotten any sense from my interactions with him that he has any kind of insight into how he came so casually to commit crimes of such gravity with such disregard for their devastating impact upon the innocent victims.

[31] Distilling genuine remorse from regret at having been caught is always difficult – in Mr. Francis’ case, I found it bordering on impossible. Although addicted, he was not living in desperate circumstances. He appears to view himself as the victim in this story, an approach which looks at things through the wrong end of the telescope.

[32] The impact of both of these crimes on the victims was severe. Whatever the wholesale value of the stolen merchandise, something in the order of $1.5 million in retail value of expensive, high-end watches were stolen and have disappeared, apparently beyond recovery. One or two watches that may have been retained by Mr. Briscoe does not materially alter matters. There is no suggestion that Mr. Francis still has any of the watches, but he has not exactly co-operated in attempting to recover them either. The sentencing principles that I must examine when considering a conditional sentence in s. 742.1 (a) of the Criminal Code point to a sentence well in the penitentiary range prior to consideration of the mitigating circumstances present here. I do not see that a conditional sentence can reasonably be considered to be an available option in this case on a fair interpretation of this provision. Mr. Briscoe has made a joint sentence submission in his case of two years even if comparison of the two cases must be undertaken with care since I lack full knowledge of Mr. Briscoe’s individual circumstances and prior record. While Mr. Briscoe was the actual author of the violence committed during the robberies, Mr. Francis’ responsibility for the violence is nevertheless high.

[33] I cannot find that I am satisfied on the facts of this case that this is an appropriate case to apply a conditional sentence given my conclusions in relation to the application of sentencing principles and s. 742.1(a). A conditional sentence served in the community would not permit adequate recognition of the sentencing principles in s. 718 through 718.2 of the Criminal Code. I decline to make such an order. A term of detention is clearly required if adequate weight to deterrence and denunciation is to be given.

[34] There are few jobs faced by a judge more difficult than arriving at a fit and proper sentence. No two cases are ever alike even if they will often have strong similarities. Subjective judgments of such things as rehabilitation prospects or deterrence are judgement calls and not a precise science.

[35] My review of the facts and circumstances to this point has touched upon the bulk of the applicable sentencing principles. Denunciation of the unlawful conduct and deterrence - both general and specific – of that conduct is clearly a very high sentencing priority in any case where robbery with violence is concerned. This is particularly so where, as here, two robberies exhibiting planning and resort to actual violence occurred. The bear spray was produced and sprayed at the victims in a single gesture. Violence was not an accident – it appears most strongly to have been a planned feature. The harm to the victims was significant both in terms of trauma suffered and monetary loss. Any sentence must acknowledge that degree of harm and promote a sense of responsibility in this offender and in those that may follow. Any perception of a mere “slap on the wrist” for such conduct is ultimately corrosive of the rule of law in society. A sentence must appear fit and proper to a public that is reasonably informed of all of the goals of sentencing, the circumstances of the offence and of the offender. It must be proportionate to the gravity and the degree of responsibility of the offender. In this case, the offences are grave and the degree of responsibility of Mr. Francis is clearly very high for the reasons already expressed.

[36] The parity principle does not require that Mr. Francis receive the same sentence as his co-accused Mr. Briscoe but it does require that the two sentences, when viewed together, should be objectively understandable by an informed observer. Mr. Briscoe has made a joint sentence submission of two years in prison for his part in these robberies. Mr. Francis’ sentence should be expected to make sense in that context.

[37] While a more severe sentence than the 21-month global sentence proposed by the Crown is certainly within the range of sentences that could be considered reasonable, I am persuaded to accept the Crown’s submission in this case, particularly in recognition of Mr. Francis’ youth and lack of prior record as well as progress in addressing his underlying conditions.

[38] At the oral sentencing hearing, the Crown asked for a fine in lieu of forfeiture of $1.5 million in recognition of the value of the stolen watches. A fine in that order of magnitude is so far beyond the near-term or medium-term earning capacity of Mr. Francis as to amount to little more than a supplemental jail term which, in this case, would amount to a minimum sentence of five further years by the application of s. 462.37(4)(A)(vii) of the Criminal Code. I do not view myself as compelled by the terms of the Criminal Code to accede to such a request.

[39] There was no suggestion of a fine in lieu of forfeiture made at the time of the guilty plea inquiry where the Crown’s 21 month sentencing position was explained to Mr. Francis as a ceiling on the outcome of an open sentence hearing unless I as trial judge gave both parties notice that I was considering a more severe sentence than the one sought. Further, the Crown has not actually made an application for a fine in lieu of forfeiture or provided any of the notices (including to victims) contemplated by Part Xii.2 of the Criminal Code beyond the oral request first advanced at the sentencing hearing.

[40] While the agreed statement of fact at the guilty plea inquiry stage stipulated the alleged value of the stolen watches, there was no evidence or detail provided to back up those figures. Mr. Francis’ non-opposition to the proposed values when his plea was accepted was not on an informed basis given the failure to disclose the intent to base a fine in lieu of forfeiture on that stipulation.

[41] In all of the circumstances of this case, I cannot find that the evidentiary and procedural foundation for imposing the requested fine in lieu of forfeiture has been made out and I decline to proceed with the Crown’s request in that regard.

[42] The offences for which Mr. Francis has been convicted are primary designated offences under s. 487.04 of the Criminal Code and a DNA order is mandatory under s. 487.051(1). Mr. Francis having been convicted of an indictable offences in which violence against a person was used, I find that s. 109(2) of the Criminal Code is applicable and a ten year prohibition order under s. 109 shall issue.

[43] I have acceded to the Amicus request to consider a lesser probation period than the two years sought by the Crown. Mr. Francis has made considerable progress towards his eventual rehabilitation while living under house arrest without any identified issues arising. I think that an eighteen-month period of supervision will enable the foundation laid to be monitored and built upon while not impeding unduly his reinsertion into society.

[44] I have by and large adopted the probation conditions suggested in the PSR in which the Crown concurred. I have added a condition regarding maintaining sobriety. The evidence strongly suggests that continued sobriety is a key component of continued progress by Mr. Francis and that substance abuse has played a very significant role in his criminality.

[45] Mr. Francis will emerge from this brush with the law having paid his debt to society, having managed an extended period of sobriety and gained the opportunity to appreciate how much better his life can be sober compared to the downward spiral he had launched himself on in 2020. He will continue to have a supportive family and will be young man with every opportunity to resume a positive career track. I am confident that he will do well. It will take longer for the harm done to his victims to be repaired and the financial hole his actions dug into those businesses has been significant. The sentence I have fashioned is the best balancing that I believe I can reach considering the variety of competing sentencing goals that I must consider.

Disposition

[46] For the foregoing reasons, I sentence Mr. Kyle Francis as follows:

a. A custodial term of 21 months less the one (1) day of pre-sentence custody served; b. Probation for a period of 18 months subject to the following conditions: i. Report as directed to a probation officer; ii. Do not (a) communicate with or (b) come within 200 metres of a place where any of the following persons live or are known to be present: Lyle Clark, Christopher Briscoe, Jessie Qasha, Derek Hayward, Liz Hulsebosch, Carrie Ng, Vana Stepanian or Kosrow Ansari; iii. Do not come within 200 metres of Berani Jewelry at 2901 Bayview Avenue or Johnny Watches at 353 Eglinton Avenue West; iv. Do not associate with anyone known to have a criminal or youth court record except family members; v. Attend and actively participate in assessment, treatment or counselling sessions including but not limited to: Dialectical Behaviour Therapy, substance abuse and mental health issues, as directed by his supervising probation and parole officer and provide proof of attendance and completion; vi. Sign a release of information allowing his probation and parole officer to monitor his compliance with any conditions of this order; vii. Secure and maintain gainful employment and provide proof thereof or of efforts to secure same to his probation and parole officer; viii. Abstain from the consumption of alcohol, marijuana or any controlled substances (excepting prescribed medications); and ix. Do not possess any type of weapon as defined by the Criminal Code. c. Supply a DNA/bodily substances sample pursuant to s. 487.051 of the Criminal Code; d. A ten year firearm prohibition pursuant to the terms of s. 109(2) of the Criminal Code.

[47] The Crown asked me to recommend that Mr. Francis serve his custodial term at Ontario Correctional Institute where the opportunity to pursue the continuation of his treatment can be pursued. I readily concur in that recommendation. Mr. Francis has made solid progress in tackling his mental health and substance abuse issues while under house arrest. Building on that progress during any time spent in custody is an essential component in securing the rehabilitation of this offender. I am directing that the strongest possible consideration be given to Mr. Francis serving his sentence at OCI.

S.F. Dunphy J. Date: August 21, 2023 Corrections issued: August 23, 2023

Footnotes:

[1] The corrections were made in open court and released on August 23, 2023 and are explained and contained in paragraph 1 below. [2] I do not in any way underestimate the risk of intermediate failures on the road to mastering addiction and achieving sobriety. Multiple failures are, unfortunately, a recognized part of the path and each addict’s path is an individual one.