COURT FILE NO.: CR: 22-518
DATE: 2023-09-28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
A. Grady for the Crown Attorney
— and —
TYRELL EDWARDS-LAFLEUR
M. Stellato, on behalf of the Offender
HEARD: August 30, 2023
REASONS FOR SENTENCE
A.J. GOODMAN J.:
[1] On August 8, 2022, the offender, Tyrell Edwards-Lafleur (“Tyrell”), plead guilty to several weapon-related offences including robbery with a firearm, with intent to wound, did unlawfully discharge a firearm, possession of a restricted or prohibited firearm and several breaches of court orders related to firearms, contrary to their respective provisions in the Criminal Code, R.S.C. 1985, c. C.-46. The offences are alleged to have occurred on February 22, 2019 in the City of Hamilton.
[2] For a variety of reasons, including a delay in receiving certain records and an Enhanced Pre-sentence Report (“EPSR”), this sentencing hearing has been postponed for over a year.
[3] Ms. Grady, on behalf of the Crown, seeks a global jail sentence of 13 years for the various offences with several ancillary orders. The Crown’s position takes into account a total sentence of 15 years for the firearm counts with a reduction of two years to acknowledge the totality principle. The very serious nature of the charges with the offender’s related prior record, amongst other factors warrants a substantial penitentiary sentence to reflect the principles of denunciation and deterrence. Over and above the usual “Summers” credit, the Crown acknowledges that a reduction to the overall sentence ought to be afforded, but that it be capped at 18 months. The Crown submits that the remaining time to be served ought to be in the range of five years.
[4] Mr. Stellato, on behalf of his client, submits that the global sentence proposed by the Crown is appropriate and he does not dispute the 13-year sentence. The issue is how much mitigation or credit is to be afforded from the global sentence to reflect his client’s custodial conditions over the past four and a half years, including during the pandemic, and to acknowledge his client’s exposure to racism in the realm of social context issues. The defence submits that Tyrell has been rehabilitated to the extent that the passage of time is an important consideration in addressing the mitigating factors.
[5] At the end of the day, the defence submits that the sentence ought to be reduced by three to four years, with the remaining time to be served in the range of 27 to 32 months. There is no issue with respect to the ancillary orders requested by the Crown.
Circumstances of the offence:
[6] The circumstances of the convictions at trial are outlined in the Agreed Statement of Facts (“ASF”) filed by the Crown. Briefly, the salient facts include:
On February 22, 2019 at approximately 10:00 pm Noah Hope, Tyrell Edwards-Lafleur and Kendra Davis' cell phones are all in the vicinity of an Air BNB at 2522 Faulkland Crescent in Oakville. This is approximately 1 hour prior to the shooting of Mr. Rose.
Tyrell Edwards-Lafleur, who identified himself as Clair, had met Tammy Smith and Jodi Edwards a few days before the shooting. Jodi recorded Clair's phone number in her phone. Edwards-Lafleur contacted Jodi about arranging a large drug deal. As a result, a drug transaction between their friend Mr. Rose and Clair was to take place at their residence.
Shortly after 10:25 p.m. on February 22, Edwards-Lafleur and Hope arrived in the area of 394 Barton Street East. Based on the surveillance video, it is believed they arrived in a grey Nissan Altima driven by Kendra Davis. The Altima is registered to Kendra Davis, the girlfriend of Edwards-Lafleur. Notably, the grey Altima was missing a hubcap on the front driver's side wheel. This enabled police to identify the vehicle in surveillance video. Hope and Edwards-Lafleur entered the attic apartment at 394 Barton St E and were allowed in by Tammy and Jodi to await the arrival of Mr. Rose.
Mr. Rose arrived shortly after 10:50pm carrying 56 g. of powder cocaine with a street value of approximately $3,000 as per the pre-arranged plan. After a period of time in the apartment, Edwards-Lafleur and Hope robbed Mr. Rose of the drugs. Edwards-Lafleur pistol whipped Rose in the head with a handgun while Hope sought to restrain him using zip ties. Tammy tried to intervene and when she tried to call 911, Edwards-Lafleur turned the gun on her and told her to 'shhh'. Mr. Rose fell to the ground after being struck in the head with the gun near the front door. He described being punched and kicked repeatedly while on the ground by both men. With Mr. Rose on the ground and unable to protect himself after he had turned over the drugs, Edwards-Lafleur shot him in the chest at close range. The bullet passed through Rose's chest and exited into Hope's knee who was positioned behind him at the door.
Edwards-Lafleur and Hope fled the apartment. Hope struggled to walk and eventually collapsed on the ground at Barton Street East and Smith Avenue. As soon as the men left the apartment, Jodi called 911 and provided detailed descriptions of the two men. Jodi had a phone number for the man she knew as Clair and she described him wearing a black bubble coat and the 2nd male who was unknown to her, later identified as Hope. Police arrived just before 11 pm and located and apprehended Hope who was having difficulty standing given the bullet in his knee. He refused to identify himself until hours later while being treated at the hospital after speaking with his lawyer. Police noted fresh cuts on his hands. Hope underwent surgery and the bullet in his knee was removed and seized by the police.
Police and ambulance arrived on scene to find Mr. Rose with an obvious gunshot wound to the chest. He was taken by emergency run to the General in critical but stable condition in the ICU. He underwent surgery and was ultimately released 2 weeks later. He suffered a hemopneumothorax, rib fracture, and forehead fracture and laceration.
On Saturday March 23, 2019, police were advised that Lyne Davis, the stepmom of Kendra, had located a firearm in the spare bedroom of her residence at 10 Erminia Court in the City of Hamilton. Police attended the bedroom and looked in the 2nd dresser drawer where he located a firearm. There was no ammunition in the firearm. It was determined to be a Taurus .40 semi-automatic firearm with an 11 round magazine. The serial number had been removed from the firearm.
In the top drawer, officers located two pieces of prison identification bearing the name of Tyrell Edwards-Lafleur and a birth certificate. There was also a black baseball cap located and inside the cap, there was a tissue with 9 pieces of .40 caliber ammunition. Suspected blood was detected on the swab of the underside of the barrel and as a result, the firearm was sent to the CFS for testing. The victim, Mr. Rose, cannot be excluded as the source of the blood on the underside of the barrel of the firearm. The 40 caliber casing recovered from 394 Barton St was tested against the Taurus firearm recovered from Erminia Court. It was concluded that within the limits of practical certainty, the casing was fired from the handgun.
Pre-Sentence Reports (“PSR”)
[7] The materials filed include a January, 2014 PSR, a 2015 stand-down PSR, and a more recent September 22, 2022 report. As opined by several authors, it is clear that the offender is no stranger to the criminal justice system.
[8] The most recent PSR includes references to Tyrell’s mother who relayed that the subject’s father's involvement was inconsistent, however the subject's paternal grandfather and grandmother were very involved. The subject has five siblings, four younger sisters through his father and a younger brother through his mother. His mother has attempted to provide support and guidance prior to and throughout his involvement with criminal activity. Tyrell’s mother stated that the subject is not a bad person though he feels that he may be looking for a sense of belonging at times, something that she stated “he gets from the wrong people.
[9] Tyrell claimed that alcohol abuse began during his teenage years. Currently, his consumption remains the same and he denies any problematic use. He relayed that he uses marijuana and has possessed a medical license. He expressed that the majority of his peers are involved in criminal lifestyles, expressing that they have records for offences including trafficking substances and weapons related offences. He claimed that in order to not find himself in a similar circumstance, he needs to seek out employment rather than "turning to crime" adding that "selling drugs turned to someone almost dying".
[10] The various authors’ advise that Tyrell’s criminal record is marred by a number of failures to comply with recognizance orders and serious offences, from assault with a weapon, trafficking and weapons related offences, to armed robbery. In the most recent PSR, the offender expressed remorse for his actions and, while touching on the impacts in his own life, also acknowledged the impact on the victim and the callousness of his actions.
Enhanced Pre-sentence Report (“EPSR”)
[11] The extensive EPSR prepared for this offender reveals some of the following:
Tyrell identifies as a Black, heterosexual man of Jamaican and Trinidadian descent. His mother, Ms. Edwards reported that her parents were never together and stated that her father was "not really in the picture".
Tyrell disclosed that his mother and grandmother played a role in raising him. Tyrell reported that his father was an inconsistent figure in his life because of his long criminal history that led him to be incarcerated for extended periods during his childhood.
When Tyrell started to learn more about his father's involvement in crime, he was not embarrassed about it, and allowed his father's street credibility to boost his own reputation within the neighbourhood and with peers. Tyrell reported that his father sold drugs in St. James Town. Tyrell reported that his father provided him with advice to stay away from criminal trouble, but he did not listen. The absence of Mr. Lafleur likely had an impact on Tyrell, "he longed for his father's involvement". She believed that Tyrell growing up without his father was a factor that contributed to his unfortunate outcomes, "he did not have a positive example".
With respect to his mother, Tyrell described an "unhealthy" and "dysfunctional" relationship that spanned throughout his childhood and adolescence. He reported that they often argued and his mother physically disciplined him in an effort to correct his behaviour. As a result of their conflict, Tyrell believed that their relationship lacked love and a genuine connection. Ms. Edwards considered herself to be a strict parent but still tried to give Tyrell some leeway within reason. Tyrell speaks to his mother on occasion and reported that she is involved in his son's life. Tyrell spoke positively about his 3 ½ year old son, Kaidel and expressed his hope to be a good father and role model to him one day. Ms. Edwards would like to see Tyrell "step up" for Kaidel who needs his father.
Ms. Edwards was the only Black student in her school and recalled that St. James Town housed predominantly white families. Tyrell shared similar descriptions of his neighbourhood, and he began to normalize events that took place in St. James Town. As a child, Tyrell has been in close proximity to stabbings, fights and has heard gunshots at various times of the day or night. He disclosed that neighbourhood "beefs" with rival areas often incited violence that caused him to worry about being a target of harm because of mistaken identity.
According to the report, Tyrell was stabbed at the age of 16. Ms. Edwards recalled this scenario to be frightening as it led to Tyrell being hospitalized. Tyrell reported that being stabbed had impacts that were two-fold and provided a rationale for him to possess firearms. Not only was it a critical moment that encouraged him to think about his personal safety, but also helped him to consider the benefits of carrying a firearm for protection. This stabbing incident brought on mental health concerns for Tyrell that began to surface shortly after. Ms. Edwards' financial situation fluctuated while she raised her children and believed they occupied the lower middle class. Tyrell considered his family to be low-income like the other families that were housed in St. James Town. He disclosed that food was available in his home, but had to be conserved due to his mother's income and her ability to buy groceries in certain increments.
He was drawn to poor influences in his youth and believed that the anti-social activities his friends engaged in also motivated him to participate in crime.
Tyrell saw the police everyday in his neighbourhood and observed them harass Black men by searching and being aggressive towards them. At the age of 13 or 14, Tyrell reported a change in his interactions with the police that related to the "sagging pants" and hooded sweatshirts he wore that made him "stand out". Tyrell explained that his style of dress and Black identity created an image that the police associated with gang membership or "someone who is up to no good". Tyrell expressed his concerns about the police and is anxious in their presence. He described having "sweaty palms" and the incessant need to look over his shoulder when he is in close proximity to them in the community.
Tyrell has a lengthy criminal record that includes youth and adult convictions. Tyrell's criminal record was reviewed and documents convictions starting in 2013 for offences like: Fail to Comply with Recognizance, Fail to Comply with Sentence, Assault and Assault with a Weapons. Tyrell spent the majority of 2013 in youth detention centres that were a combination of open and secure custody. Tyrell reported that his involvement in crime as a youth related to him being "young and stupid". In 2016, Tyrell was convicted of his first adult offences: Armed Robbery, Disguise with Intent, Conspiracy to Commit an Indictable Offence, Unauthorized Possession of a Firearm, Unauthorized Possession of Firearm in Motor Vehicle and Traffic in Schedule I Substance.
When Tyrell was being sentenced for these offences, he recalled the judge raising a number of concerns about his offending behaviour and decision-making. Tyrell was sentenced to a period of imprisonment, and at the time of sentencing had 2 years and 9 months remaining which he completed in the Collins Bay penitentiary. Approximately one year later, on February 22, 2019, Tyrell participated in the offences that are the subject of this EPSR. He described his involvement in the situation as "a drug deal that went wrong". Tyrell intended to find employment but found this task to be difficult and reverted back to "what he knew how to do".
Tyrell recognized that his actions could have taken the life of the victim, Mr. D'Shawn Rose and also considered what his family endured upon hearing the news that he had been shot.
Tyrell acknowledged that his choices were poor and that his renewed insight might not be well received by the Court given his past. Tyrell was able to reflect that continuing on a path that leads him to the criminal justice system is no longer beneficial and he is tired of it. Ms. Edwards believed that a combination of factors led Tyrell to become involved in the criminal justice system including the influences of his father, the impact of single parenthood and his following of negative peers during his teenage years.
Tyrell has been in custody since 2019 as a result of the offence. He has spent 2 ½ years at the Hamilton-Wentworth Detention Centre (HWDC) and the other portion of time consisted of transfers to other correctional facilities in Toronto and Penetanguishene. Tyrell reported that HWDC is a predominantly white institution with respect to inmates and correctional staff, with a very small number of Black inmates. Tyrell noted that HWDC is a racist jail and remarked: "I never dealt heavily with racism until I got here". He disclosed that the correctional officers (C.O.'s) beat up Black inmates, hurl racial slurs (like the n-word) and abuse their authority. Black inmates on the left side of the range and white inmates on the right side. He reported that when he arrived in the intake department at the jail, another inmate who was not Black told him, "Blacks are on the left". Tyrell expressed confusion and anger about the jail conditions and believed that this classification system has been used historically by HWDC and is "just how they operate". Tyrell also spoke about the lockdowns that have intensified since the COVID-19 pandemic and reported that the jail is typically locked down on the weekends and for the majority of the week. He shared that the inmates do not get yard time at HWDC, and since he returned in January 2023 he has been outside on two occasions.
Tyrell acknowledged that he can get "mad" but did not feel that he was unable to control his emotions. Tyrell believes that the pills help him cope and without them he would be "stressed out" and "in his feelings and thoughts". Tyrell was concerned about the stigma surrounding mental health and believed that he would be perceived as "crazy" by his peers and even on a cultural level by family members. Tyrell kept his diagnosis private and wanted to "deal with it on his own”… Tyrell appeared to be embarrassed and ashamed when conversations about his past and most recent offences were raised. Tyrell expressed remorse for the harm he inflicted on Mr. Rose and his involvement in the offence. He has considered the areas of his life that he wishes to change moving forward and no longer wants his life to be deterred by engaging in a criminal lifestyle.
Report Summary: Tyrell received direction from his mother and grandmother throughout his childhood, but he lacked consistent involvement from his father, which was necessary as to his development as a young man. The involvement of fathers is important with respect to their role in raising their children, imparting positive values and being a "force" that distracts Black youth away from crime and violence. The City of Toronto (2016) reported on St. James Town as being a community that houses individuals and families from primarily African, South Asian and South East Asian countries.
Tyrell grew up in St. James Town where he was in close proximity to violence, other illicit activities and peers who were negative influences. It was also within this neighbourhood that Tyrell was stabbed and severely injured in a fight when he was 16 years old. Resulting from this incident, Tyrell began to experience paranoia, hyper vigilance and anger. The impact of community violence on victims can be a risk factor to them developing mental health disorders such as post-traumatic stress disorder, anxiety and depression. Managing his mental and emotional health symptoms is a new challenge for Tyrell that initially made him feel insecure.
Tyrell reported that his family was low-income and believed that committing crimes was his solution to escape poverty. Data collected from the City of Toronto (2019) reported that poverty and unemployment affects Black residents who are without work at a rate of 12%, a number nearly double the provincial rate. The presence of police in St. James Town was a common image for Tyrell. He observed the police to harass Black men and abuse their authority.
Research on anti-Black racism identified its presence in policing to be a pervasive issue that has affected 80% of Black Ontarians (OHRC, 2020: p. 4; Social Determinants of Homicide, 2019: p. 13). The Toronto Police Service {TPS) released research in June 2022 that revealed Black men were overrepresented in "use of force" incidents when they encountered the police and were 2.3 times more likely to have a firearm pointed at them when a weapon is not perceived.
Case Law:
[12] I have been provided with numerous cases from both counsel on the issue of the appropriate sentence to be imposed. Although the law is clear that each case turns on its own specific facts, a careful review of these cases, to the extent I can find similarities to the case before me, does assist me in determining what an appropriate range is for the sentence to be imposed. As some of the cases relied upon by counsel are distinguishable on the facts or the circumstances of the particular offender, my intention is to briefly set out those cases that are somewhat similar to the issues in the case at bar.
[13] These cases include R. v. Marshall, [2016] O.J. No. 7335, wherein, after trial, the offender was found guilty of robbery with a firearm. The robbery was sophisticated, planned and deliberate. The offender used the gun to intimidate and shoot the victim. The judge determined that a consecutive sentence was warranted as the “gun was not only brandished but used and in such a potentially lethal manner against a very vulnerable victim”: at para. 29. He received a global sentence of 11 years and three months.
[14] In R. v. Sauve, 2019 ONSC 960, after trial, the offender received a global sentence of 12 and a half years. Mr. Sauve had an extensive criminal record, although this was his first conviction related to a firearms offence. The trial judge noted that the offender’s shooting conduct was cold and callous.
[15] In similar cases with the use of a firearm in the commission of a robbery, along with a guilty plea, such as R. v. Derby, 2022 ONSC 2266, the offender was sentenced to a global term of nine and half years in jail. In R. v. Abderezak, 2022 ONSC 6737, the offender was sentenced to 12 years in gaol. See also, R. v. Campbell, 2021 ONSC 4193; R. v. Jefferson, 2014 ONCA 434; R. v. Weedon, 2019 ONSC 73; and R. v. Claros, 2019 ONCA 626.
General Principles:
[16] The court is guided by the principles of sentencing as set out in ss. 718 to 718.2 of the Criminal Code. As directed by s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that reflect enumerated objectives. Those objectives include denunciation of the unlawful conduct, deterrence and rehabilitation. It is also important to impose a sentence that promotes a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.
[17] Section 718.2 of the Criminal Code addresses the principles of totality, parity and the principle of restraint among other factors. Section 718.2 also addresses specific aggravating and mitigating factors that shall be taken into consideration based on certain enumerated principles. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The circumstances of the offence and of the offender must be analyzed to identify the aggravating and the mitigating factors.
[18] There is no disagreement amongst counsel that the primary objectives in cases of this nature are general deterrence and denunciation. General deterrence is an established sentencing objective based on the premise that the sentence imposed on an offender will discourage people who may otherwise consider committing a similar offence: see R. v. Bissonnette, 2022 SCC 23, 469 D.L.R. (4th) 387, at para. 47; R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at paras. 2-3; R. v. Foster, 2020 QCCA 1172, at para. 26; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 107; R. v. Biancofiore (1997), 1997 CanLII 3420 (ON CA), 119 C.C.C. (3d) 344 (Ont. C.A.), at para. 23.
[19] Denunciation requires that a sentence communicate society’s condemnation of the offender’s conduct posed by loaded handguns: See R. v. Danviers (2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.), R. v. Nur, 2015 SCC 15, R. v. Smickle (2013), 2013 ONCA 678, 304 C.C.C. (3d) 371 and R. v. Marshall, 2015 ONCA 692, at para. 49.
Aggravating factors:
[20] The aggravating factors in this case include the offender’s criminal record with his related convictions. Aside from his youth record which began in 2013, the most significant convictions pertain to his plead of guilty to a planned armed robbery, conspiracy to possess cocaine for the purpose of trafficking, disguise with intent and related firearms offences in February 2016, reported at 2016 ONCJ 97. The trial judge noted that Tyrell had the support of his mother, who had arranged professional counselling, albeit her efforts fell on deaf ears: at para. 29. Tyrell sought to make money the “easy way”: at para. 34. He received the equivalent of a five and a half year sentence. I observe that the former case is analogous to the motivations and circumstances in the case at bar.
[21] Prior to the predicate offences, the offender was recently released from jail and is again committing a serious crime with violence. Comparable to the convictions in 2016, there is evidence here of a deliberate, planned and coordinated event where the offender arrived with loaded firearm, followed by pistol whipping, beating and shooting the victim.
[22] The offender was the instigator of this crime. There appears to be a pattern of conduct to arm himself, to intimidate and rob. There is the concept of greed incorporated in the offender’s actions that lead up to the planned robbery and subsequent, gratuitous shooting.
Mitigating factors:
[23] The offender pleaded guilty. Generally, a guilty plea is a significant mitigating factor as it demonstrates remorse and an acknowledgement of the harm done to the victim and the community. Although, it was not an early plea, there is some mitigation afforded to the fact that the offender intended to plead and has accepted responsibility for his actions.
[24] In his comments to the court, Tyrell had expressed some degree of regret for his actions and to his family. He has the backing and support of his family. However, it is not lost on me that his partner and the mother of his child who is co-accused, was five months pregnant when they jointly committing the offence.
[25] With respect, I am not persuaded by the argument that the passage of time, while awaiting disposition, is a relevant mitigating factor. The suggestion is unsupported by evidence and is somewhat self-serving.
[26] There is evidence that the offender has experienced anti-Black racism. I will address this social context factor later in these reasons.
Analysis:
[27] As mentioned, there is no dispute as to the global sentence of 13 years proposed by the Crown. Thus, the only issue is the degree of mitigation or credit to be afforded against the term being proffered.
[28] A court is guided by the overarching principles of proportionality. The starting point for any sentencing is the requirement that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. As Lebel J. explained in R. v. Ipeelee, 2012, SCC 13 at para. 37:
Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system…Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.
[29] Section 718(2)(b) of the Code specifically provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.
[30] The direction from the Supreme Court in R. v. Lacasse, 2015 SCC 64 at paras. 87-105, instructs me that I am consider local conditions. The prevalence of firearm offences in Hamilton continues to be a serious problem for citizens. This type of offence serves to reinforce fear and undermines the safety of citizens in this community. The fact that the firearm was used in the manner evidenced by the ASF is a highly aggravating factor: see Nur, at paras. 131-145.
[31] It is fortunate that the victim, while sustaining serious injuries, did not die. In this case, discharging a firearm with intent to endanger life must be considered as falling near the upper end of the gravity spectrum. I observe that similar comments were made in the matter of R. v. Bellisimo, 2009 ONCA 49, where the Court of Appeal held that the range of sentence for serious gun-related offences is between seven and 11 years. In this case, it is clear that the offender was prohibited from possessing any firearm, much less employ it in the course of the robbery. However, as the offender was on various weapons prohibition orders, I am mindful that he is also convicted of these offences. As they will require consecutive sentences, I must temper any considerations of this factor.
Anti-Black Racism in the Social context.
[32] The defence file a detailed report, which was of assistance to the court.
[33] I note that, notwithstanding, here we have a repeat offender with similar, charges. Indeed, this is not the first, significant violent crime committed by this offender with the use of a firearm, related to what can only be determined as a means to enhance his greed.
[34] Mr. Stellato argues that his client’s experience with anti-Black racism throughout his life and the impact of that racism on him are compelling mitigating circumstances.
[35] In the leading case of R. v. Morris, 2021 ONCA 680, 2021 O.J. No. 5108, the Court of Appeal for Ontario considered how courts should take evidence of anti-Black racism into account on sentencing. The Court provided a helpful summary of their principal conclusions at para. 13 of the decision. These include, but are not limited to: Social context evidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence, the gravity or seriousness of an offence is determined by its normative wrongfulness and the harm posed or caused by that conduct in the circumstances in which the conduct occurred, accordingly, unlike when assessing the offender’s degree of personal responsibility, an offender’s life experiences with anti-Black racism do not impact on the gravity of the offence.
[36] The Court of Appeal observed that sentencing judges have always taken into account an offender’s background and life experiences when assessing the offender’s moral responsibility for an offence. Experience with anti-Black racism and the impact of that racism on the offender is unquestionably part of this offender’s background and circumstances.
[37] Regardless of the mitigating impact of an offender’s lived experience with anti-Black racism, social context evidence may be relevant to the court’s assessment and appropriate blending of the relevant sentencing objectives. Understanding the offender’s background better enables the sentencing judge to craft a sentence that best reflects the “needs and potential of the offender”, while paying due respect to the seriousness of the offence: Morris, at para. 103.
[38] Of import, is the following statement in Morris, at para. 97:
There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender’s moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount: see e.g., F.H.L., at paras. 45-49; R. v. Elvira, 2018 ONSC 7008, at paras. 21-25; R. v. Ferguson, 2018 BCSC 1523, 420 C.R.R. (2d) 22, at paras. 126-29; and R. v. Biya, 2018 ONSC 6887, at para. 36, rev’d on other grounds, 2021 ONCA 171.
[39] As referenced earlier, the EPSR provides an historical and social account of the Black experience in Toronto. It draws a connection between the long history in Canada of overtly racist attitudes and social practices and present day institutional and systemic discrimination against Black people. These factors combine to leave many in the Black community with the reasonable perception that Canadian society, and in particular the criminal justice system, is racist and unfair. Of course, the report also focusses on this specific offender.
[40] To maintain objectivity, the EPSR cannot purport to speak for the offender or advocate on the offender’s behalf. A social context report must also distinguish between facts and an offender’s perceptions. In this case, however, I observe that during certain parts of the report, the author tended to advocate for the offender, which segments I must discount.
[41] At times, I note that Tyrell’s perceptions as revealed to the author of the EPSR are clearly misguided. For example, when he referenced the impact of the stabbing incident, he neglected to mention that he was the aggressor and was subsequently criminally charged for his conduct. Other concerns include his ill-advised and expressed rationale for continuing to possess and carrying firearms, with or without the imposition of various court prohibition orders. Further, his imprudent comments regarding his mother, his upbring and efforts by his mother with the intention to assist him through troubled times and their overall relationship is skewed. Frankly, I prefer the validation proffered by his mother as outlined in the reports.
[42] Recall that in Morris, the accused was convicted of possession of a loaded, prohibited handgun and carrying a concealed weapon. There was evidence that Mr. Morris’ experience with anti-Black racism in his community played a role in the development of his strong fear for his personal safety in the community. The Court of Appeal recognized that his genuine fearfulness offered a mitigating explanation for his possession of a loaded, concealed handgun. Nevertheless, the mitigating impact was limited. Mr. Morris, as in this case, still chose to arm himself in public with a concealed, loaded, deadly weapon. His reasons for doing so did not detract from the seriousness of the offence. He still “put members of the community, and police officers engaged in the lawful execution of their duties, at risk.” See Morris, at para. 101.
[43] Indeed, similar sentiments may be expressed with respect to this offender. He has a criminal record for violent offences, including robbery with a firearm. He was on a lifetime weapons prohibition, something that would have been clear to him as he went about sourcing out an illicit weapon and ammunition. He made a conscious choice to breach the weapons prohibition. He made another conscious choice to commit a robbery for greed, with sufficient time for deliberation, to pull out a gun with the intent to endanger another person’s life.
[44] While I am sympathetic to Tyrell’s experiences as a black child and young man, growing up in St. James Town, unlike the case in Morris and Derby, I am convinced that Tyrell’s mother had provided him with opportunities for change, for support, counselling and much tough love and assistance, which appeared to have been ignored or discarded.
[45] Overall, this offender’s moral blameworthiness remains high, even in the context of his lived experience, including his experience with anti-Black racism. As referenced earlier, otherwise such mitigation “becomes a discount based on the offender's colour.” Clearly, such a discount is not recognized by our law. In my view, that experience certainly informs his life and the choices that he has made. Nevertheless, as the Crown attorney points out, the choices that bring him before the court today were his choices. And they were fully-informed choices with resulting grave consequences.
[46] Counsel also identified poverty as the central concern. As mentioned, when considering the moral blameworthiness of this offence, I am not so convinced. Poverty is claimed - yet, this was purely a crime of opportunity. I agree entirely with the Crown that this crime and associated moral culpability and conduct is not a result of poverty, but avarice.
[47] That being said, I readily accept that the offender’s lived experience, particularly his experience with poverty and with anti-Black racism, inform his involvement with the criminal justice system. However, in this case, I consider it of only modest mitigating effect.
Pre-Sentence detention:
[48] There is evidence that Tyrell spent a significant amount of time in custody subject to lockdowns because of staffing shortages, and was also subject to quarantine for periods of time. In addition to this, he was often “triple bunked” and, at times had only sporadic access to fresh air. The unacceptability of such conditions has been the subject of frequent judicial disapproval: see e.g. R. v. Powell, 2020 ONCA 743, at para. 30; R. v. Johnson, 2022 ONSC 5899, at paras. 69-70; R. v. S.H., 2022 ONSC 4900, at paras. 88-90; R. v. Doyle, 2022 ONSC 2489, at paras. 54-59; R. v. T.T., 2022 ONSC 722, at para. 46; R. v. Osman, 2022 ONSC 648, at paras. 41-43, R. v. Fermah, 2019 ONSC 3597.
[49] Unduly harsh conditions of pre-sentence custody are a relevant factor on sentencing and reductions in sentence to account for them are often referred to as a “Duncan credit” after the decision in R. v. Duncan, 2016 ONCA 754.
[50] During the sentencing hearing, Tyrell provided documentation related to the various custodial institutions where he spent the past several years. The materials include a letter from the Ministry of Solicitor General Correctional Services from Hamilton Wentworth Detention Centre, dated May 29, 2023, (“HWDC”), Central North Correctional Centre, dated July 12, 2023, “(CNDC”) and Toronto East Detention Centre, dated August 29, 2023, (“TEDC”). Some of the information includes references to dates of confinement, lockdowns due to COVID or other reasons, minimal or no yard time, lack of showers, double or triple bunking and the like.
[51] The Crown did not challenge the veracity of the offender’s records.
[52] With regards to the Duncan credit, as a mitigating factor in the overall sentence, and as directed by the Court of Appeal in R. v. Marshall, 2021 ONCA 344, I am prepared to consider this additional mitigating feature as a reduction to apply towards the global sentence.
[53] Unlike the “Summers” credit, which is a deduction from what is determined to be the appropriate sentence, the “Duncan credit” is one of the factors that is taken into account in determining the appropriate sentence. A court may, but is not required to, identify a specific number of days or months as “Duncan credit”: see Marshall, (C.A.) at para. 53.[^1]
[54] This approach is intended to reflect the harsh jail conditions endured by the offender during the recent pandemic and other circumstances.
[55] Generally, the evidence adduced during the sentencing hearing tends to support Tyrell’s assertions about “partial” or “full” lockdowns, and the lack of privileges and other issues that befell him while being housed and transferred to various detention centres. I am also cognizant of some of his purported health issues and concerns whilst incarcerated, although the offender tended to exaggerate some of his complaints regarding treatment or the responses provided by the professional medical staff at the jail. In this regard, I reject the applicant’s assertions and, based on the clinical reports, I am satisfied that the staff at the various institutions addressed his concerns and provided timely medical care.
[56] In addressing the appropriate “credit”, the Crown and defence counsel do not challenge the prevailing jurisprudence. One of the many recent cases on point is R. v. Dubajic, 2023 ONSC 516. In that case, the judge applied a 1:1 credit as a mitigating consideration for the offender having spent three years in pre-sentence custody.
[57] The offender asserts that he has been subjected to 245 days or approximately eight months of full or partial lockdowns while housed at various institutions. For example, at HWDC, there were 146 full or partial lockdown days, and the offender was triple bunked for a period of time. At the CNDC, there were 78 full lockdown days and five partial lockdown days. At TEDC, there were a total of 16 full or partial lockdown days.
[58] At the same time, the offender was also the subject of several misconducts while at TEDC.
[59] In my review of all of the institutional reports, specifically, the time the offender spent while incarcerated during the pandemic, the overall sentence for the counts is mitigated to being the equivalent of one year.
Conclusion:
[60] The seriousness of these offences cannot be understated. The brazen and callous shooting of a vulnerable victim with the attendant violence in the circumstances of this case warrants sharp denunciation and deterrence.
[61] I have considered the overarching principles of totality and proportionality in regard to the six indicted offences. While they are separate delicts, it is clear that the offender has repeated his past behaviour with a firearm and has not learned from his prior convictions.
[62] While the offender has expressed a degree of remorse, I am not convinced that the offender has the insight he has expressed to others for his actions. The offender’s moral blameworthiness remains high, even in the context of his lived experience including with anti-Black racism.
[63] Nonetheless, I am persuaded that I ought to provide some enhanced credit as a mitigating factor related to the offender’s time in various custodial institutions awaiting disposition and the social context issues.
Disposition:
[64] I impose a s. 109 weapons prohibition order for life. The offender will provide a DNA sample pursuant to s. 487.051 of the Criminal Code.
[65] A forfeiture order was granted.
[66] With respect to count one - robbery with a firearm, (s. 344(1(a)), the sentence imposed is seven years. With respect to count two - intent to wound with the discharge of a firearm, (s. 244), the sentence is five years consecutive; with regards to counts three and five, possessing a restricted or loaded firearm, (s. 95(2)), two years consecutive, but concurrent to each other, and in respect of counts four and six, breaches of weapons prohibition orders, (s. 117.01(3)), one year consecutive, but concurrent to each other, which totals 15 years.
[67] I invoke the principle of totality to this overall sentence. As such, the sentence is reduced to 13 years, to be reflected on the warrant of committal.
[68] In applying the Duncan and Morris considerations as factors in the overall analysis, the global sentence to be imposed for all of these weapons counts is reduced or mitigated further to 11 years.
[69] The offender has a total of four years and six months of pre-sentence custody. With the usual Summers credit at 1.5:1, that is the equivalent of six years and nine months.
[70] Therefore, the remaining net disposition is as follows: Mr. Edwards-Lafleur is sentenced to serve a term of imprisonment of 51 months (four years and three months) in a federal penitentiary.
[71] The victim surcharge is waived.
A.J. Goodman J.
Date: September 28, 2023
COURT FILE NO.: CR: 22-518
DATE: 2023-09-28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
— and —
TYRELL EDWARDS-LAFLEUR
REASONS FOR SENTENCE
A. J. GOODMAN J.
Released: September 28, 2023
[^1]: Where the quantum of “Duncan credit” is specified, the conceptual distinction explained in Marshall will not affect the ultimate sentence the offender will be required to serve. However, it will affect how the Warrant of Committal on Conviction is completed, as it requires the court to identify the term of imprisonment that would have been imposed before credit is granted pursuant to s. 719(3.1). As a result, “Duncan credit” is not specifically identified on the Warrant of Committal.