COURT FILE NO.: CR-21-91104159-00; CR-20-06471-00; CR-21-91105430-00

DATE: 20230828

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

BABISON VILVARAJAH

Defendant

Mr. P. Westgate, for the Crown

Mr. S. DiClemente, for the Defendant

HEARD: March 1, 2022 and June 19, 2023

REASONS FOR SENTENCE

M.K. FUERST J.:

Overview

[1] Babison Vilvarajah planned to carjack luxury vehicles. He wrote down the plan in a notebook. He kept the notebook in his bedroom.

[2] In the fall of 2019, he put the plan into action. Then and again in the fall of 2021 he committed several violent carjackings, as well as other robberies, in York Region and elsewhere in the Greater Toronto Area.

[3] Mr. Vilvarajah pleaded guilty to 10 offences charged in three Indictments, as follows:

1. Robbery of Adrian Cimadamore (carjacking) [count 1, Indictment #1];

2. Using an imitation firearm while committing that robbery [count 2, Indictment #1];

3. Robbery of Tiansui Tao (carjacking) [count 4, Indictment #1];

4. Using an imitation firearm while committing that robbery [count 5, Indictment #1];

5. Robbery of William Jimenez Gonzales [count 1, Indictment #2];

6. Robbery of Sriharan Sathyamurthy [count 1, Indictment #3];

7. Robbery of Puneet Arora [count 2, Indictment #3];

8. Robbery of Oyedotun Oluwasina (carjacking) [count 3, Indictment #3];

9. Robbery of Russel Dearsley (foiled carjacking) [count 4, Indictment #3];

10. Fail to comply with house arrest condition of recognizance of bail [count 8, Indictment #3].

[4] Pursuant to s. 725(1)(b.1) of the Criminal Code (“the Code”) facts about Mr. Vilvarajah’s commission in the fall of 2021 of three additional carjackings, two successful and one foiled, were set out in the Agreed Statement of Facts (“ASF”), and admitted by Mr. Vilvarajah.

[5] Regrettably, a great deal of time passed between the entry of Mr. Vilvarajah’s guilty pleas and the sentencing hearing. This was due to many months’ delay in obtaining an Enhanced Pre-Sentence Report (“EPSR”) requested by defence counsel, and efforts by defence counsel to move an out-of-province charge to Ontario for resolution which ultimately were unsuccessful.

[6] Although Mr. Vilvarajah is a first offender, there is no question that a substantial global penitentiary sentence must be imposed. Crown and defence counsel do not agree, however, as to its length.

The Circumstances of the Offences

[7] The following is a summary of the circumstances of the offences as set out in the ASF.

[8] The ASF recites that Mr. Vilvarajah was armed with a weapon that is variously described as a “handgun”, a “gun”, and a “firearm”. However, no actual firearm was recovered by the police, and the Indictments allege that each robbery was committed contrary to s. 344(1)(b) of the Code. In other words, regardless of the wording in the ASF, none of the offences are subject to the four year mandatory minimum jail sentence provided for in s. 344(1)(a.1).

(a) Carjacking of Adrian Cimadamore’s BMW M3

[9] Adrian Cimadamore owned a white BMW M3. On September 30, 2019, he advertised it for sale on Kijiji. On October 3, 2019, Mr. Vilvarajah telephoned and said he was interested in the vehicle, but wanted to test drive it first. He arranged to come to Mr. Cimadamore’s house to do so the next evening.

[10] On the evening of October 4, 2019, just after 7:30 p.m., Mr. Vilvarajah arrived at Mr. Cimadamore’s home in Vaughan. He told Mr. Cimadamore that he had “cash in hand” to purchase the vehicle, but reiterated that he wanted to take it for a test drive first. He showed Mr. Cimadamore a picture of a yellow BMW M4 on his cell phone.

[11] As the men spoke, Mr. Cimadamore noticed there was a second man in a sedan parked at the end of his driveway. Mr. Vilvarajah said that the man was his brother who had come with him from Toronto.

[12] Mr. Cimadamore and Mr. Vilvarajah went for a brief test drive. When they returned to the house, Mr. Vilvarajah got out of the BMW in the driveway. Mr. Cimadamore parked the vehicle in his garage. When Mr. Cimadamore got out of the car, Mr. Vilvarajah approached him while taking a “black handgun” out of his pocket. Mr. Vilvarajah racked the slide of the gun and then pointed it at Mr. Cimadamore’s stomach. He grabbed Mr. Cimadamore by the arm, pulled him forward, put the handgun against Mr. Cimadamore’s rib cage, and then struck Mr. Cimadamore in the face with the gun, causing a significant gash.

[13] Mr. Vilvarajah took the car keys from Mr. Cimadamore and fled in the BMW. The second man fled in the sedan. Mr. Cimadamore was left lying in his garage, bleeding profusely.

(b) Carjacking of Tiansui Tao’s Porsche 911 Turbo Sport

[14] On the afternoon of October 10, 2019, Tiansui Tao went to the Pacific Mall in Markham. He parked his Porsche 911 Turbo Sport in the underground garage there. He returned to the garage about an hour later. As he walked up to his car, he saw a BMW M3 parked nearby with its hazard lights activated. The BMW was the one Mr. Vilvarajah robbed Mr. Cimadamore of the week before. Mr. Tao saw people in the front driver and passenger seats of the BMW.

[15] Mr. Tao got into the driver’s seat of his car. Mr. Vilvarajah got out of the front passenger seat of the BMW and came to Mr. Tao’s driver’s side window. He said that Mr. Tao had dropped his wallet. Mr. Tao knew that this was untrue, and tried to drive away. Mr. Vilvarajah removed a “black handgun” from his jacket, pointed it at Mr. Tao, and demanded that Mr. Tao get out of the car. Mr. Tao complied. Mr. Vilvarajah got into the Porsche and fled in it. The BMW followed behind the Porsche.

[16] The Porsche was tracked to a mall in Scarborough, where the police found it parked in a parking garage. They saw the BMW, with someone in both the front driver and passenger seats, stopped by a van that was occupied by two males.

[17] The BMW and the van both travelled to the Porsche. Mr. Vilvarajah got out of the front passenger seat of the BMW, and got into the driver’s seat of the Porsche. The police then boxed in all three vehicles. Mr. Vilvarajah got out of the Porsche, jumped off the second story of the parking garage, landed on top of a car, and fled through the mall.

[18] The other parties were arrested at the scene. The BMW and the Porsche were seized. The police found a black BB gun in the trunk of the BMW. DNA analysis revealed Mr. Cimadamore’s blood on it, and Mr. Vilvarajah’s DNA on its handle. Testing showed that the BB gun was not operable.

[19] Mr. Vilvarajah was arrested on November 5, 2019. His home was searched under warrant. The police found a binder containing Mr. Vilvarajah’s handwritten notes, including notes referencing a plan to carjack vehicles. The listed cars included a BMW M3 and a Porsche 911 Turbo Sport. In a note dated November 2, 2019, Mr. Vilvarajah indicated the importance of removing GPS trackers from carjacked vehicles. The police also found two dry erase boards that appeared to list planned future types of robberies and the amount of money Mr. Vilvarajah believed he could make from each. Carjacking was first on the list.

(c) Robbery of Sriharan Sathyamurthy

[20] Mr. Vilvarajah remained in custody until approximately May 2020, when he was released on bail with two sureties and a GPS monitoring ankle bracelet. The release conditions included that he not be out of the house between 8:00 p.m. and 7:00 a.m. unless with sureties or immediate family members with strict work exceptions, that he not possess any weapons, and that he not be in the driver’s seat of any motor vehicle.

[21] His Superior Court trial was set to begin in December 2021.

[22] Notwithstanding the release order and its terms, Mr. Vilvarajah committed a spree of robberies in October 2021. On October 13, 2021, around 7:00 p.m., Mr. Vilvarajah arrived at a plaza on Neilson Road in Toronto. He was in a grey Mercedes sedan. Sriharan Sathyamurthy was in the plaza, waiting outside his vehicle to complete the purchase of computer graphic cards he found on Kijiji. Mr. Vilvarajah took “what appeared to be a black handgun” from the trunk of the Mercedes, pointed it at Mr. Sathyamurthy, and demanded his phone, wallet, and money. Once he obtained these items, Mr. Vilvarajah fled in the Mercedes.

(d) Robbery of Puneet Arora

[23] On October 14, 2021, around 6:30 p.m., Mr. Vilvarajah arrived at a plaza on Rexdale Boulevard in Toronto, in a grey Mercedes. Puneet Arora was in the plaza, waiting to complete the purchase of an iPhone he found on Kijiji. Mr. Vilvarajah, who was wearing a surgical mask, asked Mr. Arora to get out of his vehicle to look at the iPhone, which was in the trunk of the Mercedes. Mr. Arora refused to get out of his vehicle. Mr. Vilvarajah approached the window of Mr. Arora’s vehicle, brandishing “what appeared to be a black handgun”. He struck Mr. Arora in the face with the butt of the gun, and demanded money. A second person got into the passenger side of Mr. Arora’s vehicle and took $7,400 cash that was in the cupholder. Mr. Vilvarajah and the second person then fled in the Mercedes. From surveillance video, the police identified the Mercedes as a vehicle that was reported stolen in Toronto in mid-September 2021.

(e) Carjacking of Oyedotun Oluwasina’s 2019 Range Rover

[24] On October 22, 2021, around 10:30 p.m., Oyedotun Oluwasina was driving his 2019 Range Rover when he noticed a grey Mercedes following him. He drove to his home in Brampton and parked the Range Rover in the garage. As he was doing so, the Mercedes parked in his driveway. Mr. Vilvarajah got out of the Mercedes and ran toward Mr. Oluwasina, pointing a “firearm” at Mr. Oluwasina’s head while making demands for the Range Rover.

[25] Mr. Oluwasina complied with the demands. Mr. Vilvarajah fled the area in the Range Rover, followed by the Mercedes.

(f) Foiled Carjacking of Russel Dearsley’s 2021 Range Rover

[26] On October 26, 2021, shortly after 7:00 p.m., Russel Dearsley parked his 2021 Range Rover beside his community mailbox in Oakville. As he retrieved his mail, a silver Mercedes pulled up beside him. The passenger, Mr. Vilvarajah, got out of the Mercedes, pointed “what appeared to be a handgun” at Mr. Dearsley’s face, and demanded his car keys. There was a brief struggle, during which Mr. Dearsley was struck with the gun. When Mr. Dearsley activated the panic button on his key fob, Mr. Vilvarajah ran back to the Mercedes and it fled. Mr. Dearsley noted its licence plate number, which was the same one shown on the video footage of the October 14, 2021, robbery of Mr. Arora.

(g) Robbery of William Jimenez Gonzales

[27] On October 30, 2021, just after 9:30 p.m., William Jimenez Gonzales was in a Cambridge parking lot. As a result of his response to a Kijiji ad, he expected to meet a party to whom he would trade two rubies worth $12,700 for some computer cards. Mr. Vilvarajah drove into the parking lot in a grey Mercedes. He got out of the vehicle, pointed “what appeared to be a black firearm” at Mr. Jimenez Gonzales, and told him to hand over his belongings. Mr. Jimenez Gonzales gave Mr. Vilvarajah his wallet, his cell phone and the rubies.

(h) Section 725(1)(b.1) Other Offences

[28] Just after midnight on October 27, 2021, Yongwei Gao was in her Range Rover parked at the side of a road in Toronto. Mr. Vilvarajah, wearing a surgical mask, approached her car window. He pointed a “firearm” at her head and forced her out of the vehicle. She complied. Mr. Vilvarajah fled in the Range Rover, followed by a Mercedes.

[29] At 12:40 a.m. on October 27, 2021, Abolfazi Soori parked his Range Rover in front of his Richmond Hill home. He saw a silver Mercedes pull up in front of his vehicle. Mr. Vilvarajah got out of the Mercedes, pointed a “firearm” at Mr. Soori, and demanded the keys to the Range Rover. There was a struggle in which Mr. Soori was hit with the weapon, but he did not turn over his car keys. Mr. Vilvarajah fled in the Mercedes.

[30] On October 28, 2021, surveillance video at a Richmond Hill gas station showed Mr. Vilvarajah pumping gas for a grey Mercedes with the same licence plate as that shown on the video footage of the October 14, 2021, robbery of Mr. Arora.

[31] On November 4, 2021, the police located the stolen Mercedes parked in a driveway on Botany Hill in Toronto. They placed a tracking device on the vehicle.

[32] That evening the police conducted mobile surveillance on the Mercedes. Just after 7:00 p.m., Yiyang Li left a Richmond Hill restaurant and was approached by Mr. Vilvarajah. Mr. Vilvarajah pressed “what appeared to be a gun” to Mr. Li and demanded the keys to Mr. Li’s Range Rover, his phone, and his wallet. Mr. Vilvarajah then fled in the Range Rover. The police saw it and the Mercedes travel in tandem. They later found the Mercedes parked in the driveway on Botany Hill, and the Range Rover parked on a street nearby.

(i) Mr. Vilvarajah’s Arrest

[33] On November 5, 2021, the police executed a search warrant at the Botany Hill address. They found keys to Mr. Li’s Range Rover, some of Mr. Jimenez Gonzales’ property (although not the rubies), and clothing worn by Mr. Vilvarajah during the robberies. No firearm was located.

[34] The police subsequently arrested Mr. Vilvarajah.

The Victim Impact Information

[35] Two Victim Impact Statements were provided.

[36] Mr. Cimadamore described having sleepless nights and a sense of fear for the well-being of his family because the carjacking occurred at his home. He suffered a deep wound to the forehead that needed stitches and left a permanent scar. Although he received his vehicle back, it was damaged. He gave up the vehicle, and estimates his financial loss at over $40,000.

[37] Mr. Jimenez Gonzales reported that he and his family felt scared, worried, and unsafe in their home because his wallet with all his identification was taken in the robbery. He and his family left their home and did not return. His financial loss because of the robbery was over $10,000.

The Circumstances of Mr. Vilvarajah

[38] Information about Mr. Vilvarajah’s background was provided in an EPSR.

[39] Mr. Vilvarajah is almost 24 years old. He has no criminal record. He was born in Sri Lanka. He came to Canada with his mother when he was one year old. His mother left Sri Lanka because of her exposure to war and violence there, as well as the domestic abuse she suffered in her marriage. She left her two older children behind in Sri Lanka. It was several years before they too were able to come to Canada.

[40] Mr. Vilvarajah was raised in Scarborough by his mother as a single parent. He was close to his mother. Unfortunately, she is described as having mental health problems. His childhood relationship with his siblings was somewhat strained because of his early separation from them. He had no relationship with his father, who at some point passed away in Sri Lanka.

[41] Mr. Vilvarajah was born with a visible cleft palate. This delayed the development of his speech. He underwent numerous corrective surgeries as a child. He was frequently made fun of and bullied by other students while in elementary school, because of his disability.

[42] Mr. Vilvarajah’s mother worked as a labourer for different employers. She lacked employment stability, and the family suffered financial hardship. They moved numerous times while Mr. Vilvarajah was growing up. They lived in lower-income areas, including in community housing for a period of time. They sometimes needed to access food banks.

[43] Ultimately, Mr. Vilvarajah’s mother resorted to social assistance, after she developed early arthritis. She has received government disability support since 2006.

[44] When Mr. Vilvarajah was 12 to 13 years old, he had recurring mental health episodes that required medical attention at a hospital. He felt angry and depressed. He would yell, cry, and hit his head. Between the ages of 13 and 14 he had outbursts of anger, fighting, and screaming at home. After he was again taken to hospital, he was given medication for bipolar disorder, which he thinks he took for a couple of years. It seems that there was no longer-term follow-up treatment.

[45] Mr. Vilvarajah recounted being grazed on the leg by a bullet as a bystander when he was 17 years old. The event is undocumented, as he did not seek medical attention or police assistance.

[46] Mr. Vilvarajah attended high school, graduating in 2017. He had positive experiences while in secondary school. One of them was participation in a youth multimedia program where he learned about music engineering skills. He went on to study business marketing at Seneca College, but left the program at age 20 without completing it. He intended to transfer to Toronto Metropolitan University, but decided to take a year off from studies because he could not manage the academic demands at the time.

[47] Mr. Vilvarajah started working when he was 16 years old, so that he could contribute to household expenses. From the ages of 16 to 20 he worked at various jobs including at McDonald’s, as a dishwasher at a restaurant, and in his uncle’s renovation company. He reported starting a clothing line business, and becoming a musical manager, although there was little detail about this in the EPSR.

[48] While in high school Mr. Vilvarajah became connected to negative peers. He reports that at the age of 17 he began using drugs including oxycodone, MDMA, cocaine, Xanax, cannabis, and heroin. His brother was ill with cancer around that time, and passed away when Mr. Vilvarajah was 18 years old. This was emotionally difficult for Mr. Vilvarajah, and contributed to an increase in his substance use.

[49] Mr. Vilvarajah has an infant daughter whom he has never met. She was born to his ex-fiancée in 2022, while he was in pre-trial custody. He told the EPSR author that he wants to be present in his daughter’s life. Going forward, he wants to obtain mental health support and substance abuse rehabilitation, so that he can continue his post-secondary studies in computer science. He completed a Substance Use program as well as Bible studies while in custody, and contacted a substance abuse treatment facility about attending its program once he is on parole. His overall objective for the future is to obtain a job and become involved in an entrepreneurial venture.

[50] Letters expressing support for Mr. Vilvarajah were provided by his mother, sister, uncle, and friends.

[51] Mr. Vilvarajah told the EPSR author that he is remorseful and sad for what he did to the victims of his offences. He said that his substance abuse was a major factor in his participation in the crimes. He asserted that others provided him with illicit substances for participating, and that with the money he made he was able to obtain more drugs. He said that he felt pressured to participate in the 2021 offences because his life was threatened due to a debt he owed others who were involved. Defence counsel clarified that Mr. Vilvarajah was not attempting to invoke a defence of duress by these comments.

[52] In his remarks at the conclusion of the sentencing hearing, Mr. Vilvarajah said that he was truly sorry for and ashamed of what he did. He said that he is committed and determined to change, including by remaining drug-free.

Mr. Vilvarajah’s Pre-Sentence Custody

[53] Mr. Vilvarajah was detained at Central East Correctional Centre (“CECC”) during his initial period of pre-trial detention, and since his second arrest, a total of 839 days, which is 1,259 days or 42 months calculated at one and a half to one. The institution provided its records of lockdowns up to August 9, 2023. Defence counsel provided me with handwritten notes made by Mr. Vilvarajah, which appear to indicate a greater number of lockdowns than those recorded by CECC. I rely on the records kept by CECC, as they are a form of business record and contain information that is precise.

[54] The CECC records indicate that up to August 9, 2023, Mr. Vilvarajah was locked down because of staffing shortages, and sometimes COVID protocols, for all or part of a day on over 230 occasions. There were times when lockdown days were successive. I infer from the pattern in the records that such lockdowns continued during the month of August 2023. In addition, CECC’s records show that Mr. Vilvarajah was triple-bunked on about 70 occasions.

[55] Mr. Vilvarajah told the EPSR author that lockdowns led him to feel isolated, and increased his anxiety and depressive symptoms. He experienced breathing issues because of asthma, and was prescribed inhalers. Defence counsel advised that Mr. Vilvarajah has been ill more recently due to the adverse living conditions at the jail.

[56] Mr. Vilvarajah told the EPSR author that he felt discriminated against by some correctional officers, as a person of colour. Nonetheless, two correctional officers provided him with reference letters describing him as being respectful to staff and peers on his range.

The Positions of the Parties

[57] On behalf of the Crown, Mr. Westgate seeks a global sentence of nine years in jail, less credit for pre-sentence custody calculated at one and a half to one. He suggests that the sentence be broken down as follows: three years in jail concurrent on each of the 2019 robberies plus one year in jail consecutive on each of the other two counts, for a total of five years; on the 2021 offences four years in jail concurrent on each of the robberies, to be served consecutively to the sentence for the 2019 offences, and 60 days concurrent on the fail to comply; and on the Cambridge offence a sentence of four years concurrent to the total sentence for the other offences. He also seeks s. 109(2)(a) orders for 10 years, s. 109(2)(b) orders for life, and DNA orders.

[58] Mr. Westgate submits that Mr. Vilvarajah chose to commit a series of serious offences. He concedes that there are mitigating factors, including that Mr. Vilvarajah is a first offender, he pleaded guilty, he expressed actual remorse, he had a difficult upbringing, the conditions of his pre-sentence custody have been harsher than usual, and indications are that he is bright and could do well on release from jail. They are outweighed, however, by the aggravating factors, which include that these were planned offences, they were committed for greed, Mr. Vilvarajah was on bail when he carried out several of them, he used gratuitous violence, and there is a proliferation of firearms in the Greater Toronto Area.

[59] On behalf of Mr. Vilvarajah, Mr. DiClemente seeks a global sentence of six years in jail, less credit for pre-sentence custody credited at one and a half to one, and additional credit for Mr. Vilvarajah’s time on a strict house arrest bail. He emphasizes that Mr. Vilvarajah is a youthful first offender who had a difficult upbringing that was impacted by intergenerational trauma and poverty. His childhood and adolescence were marked by both physical challenges and mental health issues. He has been in custody at the height of the COVID-19 pandemic, and subjected to harsh conditions including lockdowns that significantly affected his mental health. He completed programs while in custody, was a respectful inmate with a positive attitude, and has the ongoing support of family and friends which bodes well for his rehabilitation.

The Principles of Sentencing

[60] The Code sets out a number of principles of sentencing that govern a judge’s determination of the appropriate sentence in any given case.

[61] Section 718 provides that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is achieved by the imposition of just sanctions that have one or more of the following objectives: the denunciation of unlawful conduct and the harm done to victims or the community, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to victims or the community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims or the community.

[62] Section 718.1 of the Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is the chief organizing principle in determining a fit sentence. See, R. v. Parranto, 2021 SCC 46, at para. 10.

[63] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that where consecutive sentences are imposed the combined sentence not be unduly long or harsh, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and that all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders.

[64] In every case, the determination of a fit sentence is a fact-specific exercise, not a purely mathematical calculation. As the Supreme Court of Canada put it in R. v. Ferguson, 2008 SCC 6, at para. 15, “The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction”. The gravity of the offence, the offender’s degree of responsibility, the specific circumstances of the case, and the circumstances of the offender all must be taken into account by the sentencing judge. See, R. v. Lacasse, 2015 SCC 64, at paras. 58 and 143.

Aggravating and Mitigating Factors

[65] This is a case that involves multiple aggravating factors.

[66] First, the robberies to which Mr. Vilvarajah pleaded guilty were planned on his part. Some of his plans were committed to writing, as evidenced by the notes found when his home was searched. The planning included the targeting of specific makes and models of vehicles, the targeting of specific individuals seeking to purchase or trade items advertised for sale on Kijiji, and in some instances the setting up of meeting dates and times with the unwary victims. The offences were not isolated incidents, but rather were part of an ongoing course of conduct, interrupted for a period of time by Mr. Vilvarajah’s initial arrest, but ultimately resumed.

[67] Second, some of the robberies were committed at the victims’ homes, albeit outside of the residences themselves. This is true of the robberies of Mr. Cimadamore and Mr. Oluwasina. In our increasingly complex society, the home, including its exterior bounds, is the one place where an individual should feel safe and protected from harm by others. Mr. Vilvarajah grossly violated the safety and security of these victims in particular, by robbing them at their places of residence.

[68] Third, some of the robberies were committed at night, a time when the victims were more vulnerable and identification of the perpetrator more difficult.

[69] Fourth, Mr. Vilvarajah used gratuitous violence against some of his victims. Mr. Cimadamore was struck in the face with the imitation firearm, and significantly injured. This went beyond using an imitation firearm in the sense of displaying it to effect a robbery. Mr. Arora was struck in the face with the butt of what appeared to be a handgun. Mr. Dearsley was struck with what appeared to be a handgun. Although the victim was not struck, Mr. Vilvarajah deliberately pointed the “firearm” at a vulnerable part of Mr. Oluwasina’s body, his head.

[70] Fifth, these were crimes committed for greed, as Mr. Vilvarajah’s own notes indicated. The vehicles that were the targets of the carjackings were expensive, high-end vehicles: BMW, Porsche, and Range Rover.

[71] Sixth, a stolen vehicle, a Mercedes, was used to facilitate the commission of some of the offences.

[72] Seventh, at all times when he committed the 2021 offences, Mr. Vilvarajah was on bail and bound by conditions, including that he not possess weapons. He failed to comply with the recognizance numerous times. I treat this as an aggravating factor even though Mr. Vilvarajah pleaded guilty to breach of another condition of the recognizance, because as suggested by Crown counsel, I will impose a sentence on that count that will run concurrent to the sentences on other counts. See, R. v. McCue, 2012 ONCA 773, at para. 22.

[73] Eighth, as a judge who presides over criminal proceedings in the Greater Toronto Area, I note the proliferation of firearms offences and also of robberies of vehicles including by carjackings, in this jurisdiction.

[74] Ninth, the Victim Impact Statements of Mr. Cimadamore and Mr. Jimenez Gonzales speak to the fear they continue to experience as a result of being robbed by Mr. Vilvarajah. Although the other victims did not submit Victim Impact Statements, it is a reasonable inference and one that I draw that the offences were terrifying experiences for them.

[75] I have not considered the commission of the s. 725(1)(b.1) robberies as an additional aggravating factor, but rather as activity that underscores the planned and deliberate behaviour of Mr. Vilvarajah in committing the offences to which he pleaded guilty.

[76] There are mitigating factors, which I must and do take into account.

[77] First, Mr. Vilvarajah is a relatively youthful first offender. He had just turned 20 when he committed the first of the offences.

[78] Second, he pleaded guilty, which is a sign of remorse and willingness to take responsibility for his wrongdoing. Absent guilty pleas, three separate trials might have been required, possibly at different court locations. Mr. Vilvarajah’s guilty pleas saved a considerable amount of court time. In addition, he expressed remorse to the EPSR author and in the courtroom.

[79] Third, it cannot be denied that Mr. Vilvarajah’s background is one of deprivation and personal challenges that persisted through his childhood and into his teens. There is no doubt that his mother loved and continues to love him, but she was unable to provide a robust family environment in which to guide his personal development. Her struggle with her own issues, combined with Mr. Vilvarajah’s experiences due to his physical disability, negatively impacted his mental health in his formative years and at least into his early teens.

[80] Fourth, his time in pre-sentence custody has been harsher than is usually the case, primarily because of frequent and sometimes sustained periods of lockdown due to persistent staffing shortages and at times COVID-19 health protocols. Aside from the physical impact of confinement to a cell without access to dayroom or yard and limited access to showers, phones, and visits, I accept that these conditions have had a negative impact on Mr. Vilvarajah’s mental health.

[81] Fifth, Mr. Vilvarajah has rehabilitative potential. He is an intelligent person, who finished high school and was accepted into a post-secondary program, although he did not carry on with it. His behaviour while in custody has been positive. He has the ongoing support of family and friends, which will be an important motivator to him to lead a pro-social life on his release from jail.

[82] I do not treat Mr. Vilvarajah’s assertions made through the EPSR that substance abuse was a major factor in his participation in the offences and that his involvement in the second round of carjackings was due to fear for his safety, as diminishing either his moral blameworthiness or the gravity of his crimes. Both assertions are somewhat at odds with his personal notes found in his home in 2019. There is no information before me that while on bail Mr. Vilvarajah sought assistance for substance abuse, as one might expect if it were a problem of that magnitude. There is no information before me that he brought concern for his safety to the attention of the authorities, for example through his counsel, as one might expect if there were reason to fear for his physical well-being. In any event, in the circumstances of these offences, in which specific vehicles or particular individuals were targeted, and violence was either used or threatened by Mr. Vilvarajah armed with an apparent firearm, neither explanation he offered through the EPSR diminishes his personal responsibility or the seriousness of his offences.

Analysis

[83] The maximum sentence for robbery where no firearm is used is life imprisonment. There is no mandatory minimum sentence. The maximum sentence for using an imitation firearm while committing an indictable offence is 14 years in jail. There is a mandatory minimum sentence of one year in jail, which must be served consecutively to any other punishment for an offence arising out of the same event or series of events.

[84] These maximum sentences reflect Parliament’s view of the gravity of each crime.

[85] I appreciate that none of the offences to which Mr. Vilvarajah pleaded guilty involved the use of an actual firearm. Nonetheless, these robberies were extremely serious premeditated offences, committed for financial gain. Each one of the victims was caught by surprise while going about their legitimate pursuits, in some instances at their own residential properties. They were made to think that Mr. Vilvarajah was armed with an actual firearm, a circumstance that enhanced the intimidating and indeed frightening nature of his conduct, and undermined the victims’ sense of safety and security. Mr. Vilvarajah struck some of the innocent victims with the apparent handgun, in one instance causing the victim significant injury. He committed the second set of multiple offences notwithstanding that he was on bail and wearing an electronic monitoring ankle bracelet.

[86] As indicated in R. v. Morris, 2021 ONCA 680, at para. 69, “Generally speaking, the more serious the offence, the stronger the need to denounce the unlawful conduct and deter the offender and others from further offending.” The circumstances of the commission of Mr. Vilvarajah’s offences require sentences that denounce his unlawful conduct and deter both him and others from offending in the future.

[87] However, I must also consider Mr. Vilvarajah’s moral blameworthiness, including those factors relevant to his degree of responsibility. He made choices to commit the offences he did. But, as a relatively young first offender who has reformative prospects, his rehabilitative potential is a relevant consideration. And, to some extent his disadvantaged background provides a basis to give greater weight to his rehabilitation and less weight to the objective of specific deterrence. See, Morris, at para. 79.

[88] Further, the decision in R. v. Francis, 2022 ONCA 729, at para. 80, requires that while denunciation and deterrence have to be given adequate weight, I must also apply the principle of restraint. Mr. Vilvarajah is a relatively youthful first-time offender who will be serving a first penitentiary sentence. That sentence should be the shortest possible.

[89] I have treated the punitive conditions of Mr. Vilvarajah’s pre-sentence custody, due primarily to the frequent lockdowns, as one of the mitigating factors considered and weighed. I have not assigned a precise “credit” for it, to avoid giving it unwarranted significance that would skew the calculation of the appropriate global sentence. See, R. v. Marshall, 2021 ONCA 344, at paras. 52-53.

[90] I decline to grant credit against the sentence for Mr. Vilvarajah’s time on bail. There is no evidence before me that his release conditions prevented him from, for example, holding employment or pursuing his education. Ultimately, he chose to repeatedly disregard the court order that bound him, and to breach his bail in the most egregious of ways.

Conclusion

[91] There is no doubt that a global penitentiary sentence, less credit for pre-sentence custody, is required in this case. I agree with Crown counsel that the overall sentence for the 2021 robberies should be made consecutive to the overall sentence for the 2019 offences, even though application of the totality principle means that the sentences on individual counts must be adjusted.

[92] I have concluded that a global sentence of nine years in jail as sought by Crown counsel would be harsh and excessive, and would not give effect to the principle of restraint. Equally, a sentence of six years in jail as suggested by defence counsel would not be appropriate because it would fail to give sufficient weight to the objectives of denunciation and deterrence.

[93] I have concluded that the appropriate global sentence is one of seven and a half years in jail. This is the shortest sentence possible in the circumstances of these offences and this offender.

[94] Mr. Vilvarajah, please stand.

[95] I sentence you to a global term of imprisonment of seven and a half years, less credit for pre-sentence custody of 839 days calculated at one and a half to one as 42 months. That leaves a global sentence remaining to serve of four years in jail.

[96] The global sentence is apportioned as follows:

Indictment #1:

• Robbery of Adrian Cimadamore [count 1]: Three years in jail, less 24 months credit for pre-sentence custody, leaving one year in jail to serve.

• Using an imitation firearm while committing that robbery [count 2]: One year in jail, consecutive to the sentence on count 1.

• Robbery of Tiansui Tao [count 4]: A sentence concurrent to that on count 1 of three years in jail, less 24 months concurrent credit for pre-sentence custody, leaving one year in jail to serve concurrent to the sentence on count 1.

• Using an imitation firearm while committing that robbery [count 5]: One year in jail, consecutive to the sentence on the other counts.

[97] To be clear, the total pre-sentence custody credited is 24 months and the total sentence remaining to serve on Indictment #1 is three years in jail.

Indictment #3:

• Robbery of Sriharan Sathyamurthy [count 1]: Two and a half years in jail, less 18 months credit for pre-sentence custody, leaving one year in jail to serve, consecutive to the total sentence on Indictment #1.

• Robbery of Puneet Arora [count 2]: A sentence concurrent to that on count 1 of two and a half years in jail, less 18 months concurrent credit for pre-sentence custody, leaving one year in jail to serve concurrent to the sentence on count 1.

• Robbery of Oyedotun Oluwasina [count 3]: A sentence concurrent to that on count 1 of two and a half years in jail, less 18 months concurrent credit for pre-sentence custody, leaving one year in jail to serve concurrent to the sentence on count 1.

• Robbery of Russel Dearsley [count 4]: A sentence concurrent to that on count 1 of two and a half years in jail, less 18 months concurrent credit for pre-sentence custody, leaving one year in jail to serve concurrent to the sentence on count 1.

• Fail to comply with house arrest condition of recognizance of bail [count 8]: Two months in jail, concurrent to the sentence on count 1.

[98] To be clear, the total pre-sentence custody credited is 18 months and the total sentence remaining to serve on Indictment #3 is one year in jail, consecutive to the total sentence on Indictment #1.

Indictment #2:

• Robbery of William Jimenez Gonzales [count 1]: A sentence concurrent in all respects to that on count 1 of Indictment #3 of two and a half years in jail, less 18 months concurrent credit for pre-sentence custody, leaving one year in jail to serve concurrent to all other sentences.

[99] There is a DNA order on all counts.

[100] There is a s. 109(2)(a) order for 10 years and a s. 109(2)(b) order for life, on all counts except the fail to comply.

[101] There is a s. 743.21 non-communication order in respect of each victim named in the ASF and members of their immediate family.

Justice M.K. Fuerst

Released: August 28, 2023

NOTE: As noted in court, on the record, this written decision is to be considered the official version of the Reasons for Sentence and takes precedence over the oral Reasons read into the record in the event of any discrepancies between the oral and written versions.

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

BABISON VILVARAJAH

Defendant

REASONS FOR SENTENCE

Justice M.K. Fuerst

Released: August 28, 2023