Court File and Parties

COURT FILE NO.: CR-22-100000149-0000 DATE: 20231025

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - PATRICK WILLIAMS

Counsel: Daniel MacAdam for the Crown Andrea VanderHeyden for Patrick Williams

HEARD: February 23, September 29, 2023

Reasons for Sentence

Corrick J.

Overview

[1] On February 23, 2023, Patrick Williams pleaded guilty to one count of conspiracy to commit robbery and one count of impaired driving. The matter was adjourned a lengthy period of time for the preparation of an enhanced pre-sentence report. However, as of September 29, 2023, Mr. Williams had not yet been interviewed due to the backlog of cases currently awaiting the preparation of such reports. Defence counsel made submissions on sentence without a report.

Facts

[2] During the spring and summer of 2020, Toronto Police intercepted the private communications of Mr. Williams and Kenyon Horne-Cabral as part of a large-scale investigation into the activities of a suspected criminal organization.

[3] Between June 3 and August 5, 2020, police intercepted Mr. Williams discussing the commission of six different robberies. There is no evidence that any of the robberies occurred. The details of each of the robberies are as follows:

1. On June 3, Mr. Williams and Horne-Cabral had a three-way conversation with a man in prison, who told them that he had a potential robbery for them to commit the following day. Mr. Williams agreed to do the robbery.

2. On June 7, Mr. Williams and someone named Jordan discussed committing a different robbery. Mr. Williams refused to do it for “5,” the fee being offered. Mr. Williams indicated that he must be paid at least “15” because the robbery required the involvement of his crew, and he would have to split the fee with his crew members. The planned robbery involved running into the potential victim’s house and beating him. Mr. Williams later said that he would not do the robbery because of the risk that the other occupants of the victim’s home would call the police while Mr. Williams was beating the victim in the basement.

3. On July 27, Mr. Williams and an unknown male discussed committing a robbery in London for a $20,000 fee. Mr. Williams indicated that he would need another man to help because they will have to tie up the potential victim’s parents. Mr. Williams decided against doing the robbery because the person who set it up wanted $8,000, leaving only $12,000 to split amongst his crew members.

4. On July 29, Mr. Williams and Horne-Cabral had a conversation with two other men, including one who was in custody. Mr. Williams indicated that he had a $10,000 robbery lined up but needed a driver. He also indicated that he had three other robberies that could be done at different hotels, but he needed a car and a driver. In a further call with the same men, they discussed the logistics of the robberies.

5. On July 30, Horne-Cabral called Mr. Williams to inquire whether Mr. Williams had any robberies to do that day. Mr. Williams said that they could rob one or two hotels and a dispensary if they could get a car.

6. On August 4, Horne-Cabral told an unknown male to stay close to the phone because he had a robbery set up. On August 5, Horne-Cabral contacted another male to see if the robbery was still on that day. Horne-Cabral was informed that the potential victim had not come home that night. On August 6, Mr. Williams called Horne-Cabral to advise him that the robbery had been called off because they no longer had access to a car.

[4] The facts related to the impaired driving charge are as follows. In the morning hours of June 21, 2020, a witness saw a black Hyundai turn left at a high rate of speed from Greentree Court onto Clearview Heights in Toronto. The Hyundai collided with two unoccupied vehicles that were parked near 50 Clearview Heights. The Hyundai failed to stop and continued to drive westbound. Both parked cars were significantly damaged on the driver’s side.

[5] Police found the unoccupied Hyundai with significant front-end damage to the passenger side in the parking lot of 79 Clearview Heights. Mr. Williams was intercepted admitting that he had been the driver of the Hyundai when it struck the two parked vehicles and that his ability to drive was impaired at the time. Location based data from Mr. Williams’s phone also placed him at the scene of the collision shortly after it occurred.

Positions of the Parties

[6] It is the position of Mr. MacAdam, Crown counsel, that the appropriate sentence in light of the serious nature of the robberies that were discussed and Mr. Williams’s criminal record is three years in prison.

[7] Ms. VanderHeyden submits that 12 months imprisonment is the appropriate sentence for Mr. Williams. This sentence recognizes Mr. Williams’s guilty plea, personal circumstances, his youth and the particularly harsh conditions of his pre-sentence incarceration during the pandemic.

[8] Mr. Williams had spent 630 days in pre-trial custody as of September 29, 2023. He has spent another 26 days to today’s date, for a total of 656 days. Counsel agree that he is entitled to credit at the rate of 1.5 for each day in accordance with R. v. Summers, 2014 SCC 26.

Governing Sentencing Principles

[9] In determining the fit sentence for Mr. Williams, I am governed by the sentencing principles set out in the Criminal Code.

[10] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing sentences with objectives that include denunciation, deterrence, rehabilitation, the promotion of responsibility, and the acknowledgement of the harm that criminal activity does to victims and to our community. The sentence that I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[11] Furthermore, the sentence should be increased or reduced to account for any aggravating or mitigating circumstances related to the offence or the offender. It should also be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Mr. Williams’s Personal Circumstances

[12] Mr. Williams is 23 years old. He was 19, turning 20 when he committed these offences. He grew up in impoverished circumstances in an under-resourced community in Toronto. He was raised by his mother, who worked constantly and left Mr. Williams in the care of a number of babysitters. The family often suffered from food insecurity.

[13] Mr. Williams had no contact with his father until he was 15 years old, when his father contacted him from Jamaica, where he lived. When Mr. Williams was released from custody in January 2020, after serving his first adult sentence, he had decided to change his lifestyle. He had the encouragement of his father in this endeavour. He spoke to his father every day.

[14] Shortly after the pandemic hit Ontario, when Mr. Williams was already feeling isolated, his father was killed in a car accident. Mr. Williams began using alcohol and pain killers and re-connected with friends he had stopped associating with when he was released from prison.

[15] The discussions he had about the robberies and the impaired driving occurrence happened within a two-month period between June and August 2020. In August, Mr. Williams decided that he had had enough of the criminal lifestyle. He obtained employment at a warehouse and stopped communicating altogether with his former associates. The large-scale investigation ended in October 2020 and Mr. Williams was arrested on October 15, 2020.

[16] He was released on bail on October 23, 2020 but rearrested on December 7, 2020 for breaching the conditions of his release. He was released again on December 23, 2020 but rearrested on January 25, 2022 for breaching the conditions of his release. He has remained in custody since that time.

[17] Mr. Williams has a related criminal record. In Youth Court on December 21, 2018, he was convicted of two counts of robbery with violence, one count of robbery and one count of fail to comply with a recognizance. He was placed on probation for 12 months after spending two months in pre-trial custody.

[18] As an adult, he was convicted on January 31, 2020 of conspiracy to commit an indictable offence and placed on probation for two years after being credited for the equivalent of eight months pre-sentence custody. The conspiracy related to the commission of a robbery.

[19] On June 3, 2022, he was convicted of breach of probation and failure to comply with a summons and given a suspended sentence and placed on probation for 12 months.

[20] Mr. Williams has experienced anti-black racism all of his life. He has had difficult interactions with the police since he was a young teenager. He was first carded when he was 14 years old and was carded multiple times a week. He came to realize that he would be approached and questioned by police whenever he was with a group of his friends. He has had difficulties obtaining any kind of employment.

Range of Sentence

[21] To determine the appropriate sentence, I must consider sentences imposed on similar offenders for similar offences committed in similar circumstances. However, the circumstances of any case, including this one, can be readily distinguished from any other case. Sentencing is not a precise science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. Despite this, prior decisions assist in determining the appropriate range of sentence and the principles that must guide my decision.

[22] The facts in this case are unique in that there is no evidence that any of the robberies discussed were committed. Ms. VanderHeyden characterized the discussions as young men talking tough. Mr. Williams always had an excuse not to participate. However, he has pleaded guilty to conspiracy to commit robbery and three of the robberies under discussion were home invasions.

[23] Mr. MacAdam referred to the decision of R. v. Wright, [2006] O.J. No. 4870 (C.A.), in which the court commented on the challenge for trial judges to achieve sentencing parity in home invasion cases when the range of sentences imposed has varied from four to thirteen years depending on the circumstances. The court however is clear that a stiff penitentiary sentence is generally called for to address the principles of public protection, general deterrence, and denunciation, which have priority in home invasion cases: Wright, at paras. 23-24.

[24] Ms. VanderHeyden referred to the decision of R. v. Dao, 2010 ONCJ 290, in which the offender was sentenced to 22 months imprisonment after pleading guilty to conspiracy to commit robbery. The facts of that case are quite different than those in the case at bar. Mr. Dao participated in the planning of a home invasion to rob the victim of marijuana. He pulled out before the robbery occurred but insisted on his share of the proceeds afterwards. During the robbery, the victim was killed, and his wife was tied up with duct tape. In sentencing Mr. Dao, the court noted that he had a relatively minor criminal record, had taken significant steps towards rehabilitation including volunteering at a church, and had been on bail for two years without incident. These are significant distinguishing features from Mr. Williams’s situation.

[25] I turn now to consider the aggravating and mitigating circumstances of this case. First, the mitigating circumstances.

Mitigating Circumstances

[26] Mr. Williams is a young man. Given that he is only 23 years old, rehabilitation cannot be ignored.

[27] He pleaded guilty. This is evidence that he has accepted responsibility for his crimes and is remorseful. His guilty plea has also saved the time and resources that would have been necessary to conduct a trial in this matter. This is particularly significant at this time in light of the backlog of criminal trials in Toronto that has developed over the course of the pandemic, and the demands on judicial resources. Mr. Williams’s guilty plea, acceptance of responsibility and remorse are mitigating circumstances deserving of credit.

[28] In accordance with the decision in R. v. Marshall, 2021 ONCA 344, I have also considered the conditions of Mr. Williams’s pre-sentence custody in mitigation of his sentence. Mr. Williams has been incarcerated during the pandemic. The pandemic increased the harshness of prison conditions. Programs and family visits were cancelled. In a congregate setting like a prison, there was little one could do to keep oneself safe from the COVID virus.

Aggravating Circumstances

[29] There are several aggravating circumstances of this case related both to the offence and the offender.

[30] The content of the intercepted communications indicates that Mr. Williams was organized to commit robberies when asked. He had a “crew” available. He knew how many people were necessary to stage the robbery. He spoke about the violence that would be necessary to carry out the robberies demonstrating a certain indifference to others. The robberies were motivated by financial gain.

[31] Three of the robberies under discussion involved home invasions.

[32] Mr. Williams caused significant damage to two parked vehicles when he struck them driving while impaired. He fled the scene of the collision. I agree with Mr. MacAdam that this is also indicative of Mr. Williams’s indifference to the effects of his conduct on other people.

[33] Several features of Mr. Williams’s criminal record are aggravating. First, he has been convicted of four prior robbery or conspiracy to rob offences. Second, the current offences were committed just six months after he was placed on probation for a prior conspiracy offence. He was on probation at the time of these offences. Third, his record demonstrates a certain commitment to a criminal lifestyle and robbing others as a means of earning a living.

Determination of a Fit Sentence

[34] Mr. Williams is a young man with a relatively serious criminal record. Only six months after being released from custody after being convicted of conspiracy to commit robbery, he is engaged in the same behaviour. I appreciate that Ms. VanderHeyden argues that he was trying to set himself on a new path, but there is little evidence of that. His desire to change his life’s trajectory must be evidenced by more than words.

[35] I recognize that Mr. Williams is a young man from a very disadvantaged background who has made poor choices, choices that have put others at risk. There is no doubt that being a young black man raised in poverty in a racialized community has contributed to the choices he has made.

[36] Long before the decisions of R. v. Morris, 2021 ONCA 680 and R. v. Marfo, 2020 ONSC 5663, Ontario courts recognized that, “racism, and in particular anti-Black racism, is a part of our community’s psyche”: R. v. Parks (1993), 84 C.C.C. (3d) 353 (Ont. C.A.), at para. 54. Although there is no direct evidence of the effect of racism on Mr. Williams’s commission of these crimes, the effect of the circumstances in which he grew up is apparent to me. Those circumstances do not affect the gravity of the crimes he has committed but shed light on why he has made the choices he has made.

[37] As I have already indicated, the paramount sentencing principles in this case are public protection, denunciation and deterrence. Rehabilitation, however, cannot be overlooked given the personal circumstances of Mr. Williams.

[38] A sentence of 18 months, reduced to 12 months to reflect the harsh conditions of Mr. Williams’s pre-sentence custody is not a proportionate sentence and fails to adequately address the paramount sentencing principles. As I earlier indicated, the harsh conditions of Mr. Williams’s pre-sentence custody are circumstances I have considered in mitigation of his sentence. I have weighed them along with the other mitigating and aggravating circumstances. They cannot, however, justify the imposition of an inappropriate sentence: Marshall, at para. 52.

[39] The seriousness of the conspiracy offence and its similarity to other offences on Mr. Williams’s criminal record call for a penitentiary sentence.

[40] I have borne in mind that the longest prison sentence Mr. Williams has previously served is eight months. This sentence will be significantly longer and ought not to be any longer than is necessary to give effect to the paramount sentencing principles.

[41] Given Mr. Williams’s age and guilty plea, I am of the view that the appropriate sentence is 30 months in total. Mr. Williams will be sentenced to 29 months for the conspiracy to rob charge and one month consecutive for the impaired driving charge. This is a total of 30 months, or 913 days. As Mr. Williams is entitled to be credited 984 days for his pre-sentence custody, he has served his sentence. I therefore impose one day in prison.

Corrick J.

Released: October 25, 2023