Court File and Parties

COURT FILE NO.: CR-22-30000116 DATE: 20231103

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – MATTHEW MCLEAN Accused

Counsel: Anna Gilmer, for the Crown Mayleah Quenneville, for the Accused

HEARD: October 16, 2023

B.A. Allen J.

REASONS FOR DECISION ON SENTENCING

BACKGROUND

The Incident

[1] The parties agreed on the following facts.

[2] McLean faces charges of robbery, possession of an imitation firearm while committing an indictable offence and assault causing bodily harm.

[3] Mr. McLean entered the Best Mobilez store in a plaza in Scarborough on February 13, 2020 around 12:00 p.m. His face was disguised with a mask that concealed his identity. He had a concrete block with him. He approached the Best Mobilez store, unit #117. He placed the concrete block in the doorway preventing the door from closing.

[4] When he entered Kageewan Sritharan was working behind the counter and Thanushan Vanniyasingam was working in the back of the store. Mr. McLean produced an airsoft pistol that looked like an authentic handgun and pointed at Mr. Sritharan and then at Mr. Vanniyasingam’s head. Mr. McLean demanded cash and valuables. Mr. McLean went behind the counter, into the back room of the store and opened cupboards. He took Mr. Vanniyasingam’s wallet and some repaired phones.

[5] Mr. Vanniyasingam realized that the firearm was an imitation and tried to stop Mr. McLean from fleeing by grabbing onto him. A struggle ensued. Mr. McLean struck both Mr. Vanniyasingam and Mr. Sritharan in the head with the pistol and bit Mr. Sritharan’s arm. Mr. Vanniyasingam and Mr. Sritharan kept hold of Mr. McLean and the struggle continued outside the front door. Mr. Sritharan grabbed the pistol and threw it underneath a nearby vehicle.

[6] Others from nearby stores in the plaza came to help. Police were called. The group tied Mr. McLean’s hands while they waited for the police. Mr. McLean was placed under arrest and transported to 42 Division. He was cooperative with police and gave a statement confessing to the robbery. The wallet and phones were recovered as was the pistol which was located where Mr. Sritharan had thrown it.

[7] The Best Mobilez store was equipped with video cameras inside and immediately outside of the store. The video captures the offences as well as the arrest. The video from the store is in evidence.

Mr. McLean’s Life

[8] The Pre-Sentence Report (PSR) provided ample information about Mr. McLean’s life that is helpful for setting a sentence.

[9] Mr. McLean is a Black man born in Toronto and is currently 25 years of age. He was age 21 at the time of the incident. He is not married and has no children. Mr. McLean was described in the PSR as respectful and appearing forthright in providing information.

[10] By way of his early background, Mr. McLean was placed into the custody of the Children’s Aid Society at birth because his mother suffered from mental illness. He became a foster child of Esther Hutchinson (Mrs. McLean) and Desmond McLean at nine months of age. He joined the McLean’s three biological children who were ages nine, seven and four years old at the time. Mrs. McLean stated that finances in the family have been tight but “everybody helps.” The accused Mr. McLean indicated he was loved and well taken care of and never deprived of the necessities of life. His upbringing in the family appeared to be stable and his schooling presented no significant issues.

[11] Mr. McLean’s foster father has been gainfully employed in the same organization and is currently a support worker supervisor. Mrs. McLean worked for CAS for decades involving fostering children. She changed positions and began working at a group home where she remains until the present. Currently, the McLean’s two older children are both support workers. For seven years, their third child, JM, has been struggling with substance abuse, living on the street, mental illness and has been involved with the criminal justice system.

[12] Mr. McLean stated that about five or six years ago he found out from Mrs. McLean that he was not their biological child. Before that he never imagined that he was not the McLean’s biological child. Mrs. McLean said she informed him of this because he needed to be aware of his family history with mental illness. Mr. McLean soon located his biological mother’s sister on social media, who had herself adopted, Shawn, an older half-brother of Mr. McLean.

[13] Mr. McLean soon met Shawn and they have a good relationship. Mr. McLean visited his mother in Shawn’s company a few times before the robbery incident. She resides in a group home in Toronto for people with disabilities. His mother could speak with him but what she said was unintelligible to him. He does not know who his father is.

[14] Mr. McLean indicated he stopped being financially dependent on his family from grade 9 when he began earning money from selling sports shoes online which money he used to assist with family expenses. He also stated that he paid off his student loan for a course he took in relation to becoming a fireman. Mr. McLean also indicated he has been doing research on opening a patient transfer company which he plans to open in three or four years. Throughout high school, Mr. McLean was more focused on making money than his schoolwork. He worked at various jobs in the summer and after class in retail stores, supermarkets and factories from grade nine to eleven.

[15] Mr. McLean was an average student with no significant conduct issues at school. He stated that he started to apply himself in grade 12 in order to qualify for admission to the pre-service firefighter education and training program at Seneca College. He met the requirements, completed the program and graduated. Mr. McLean presented a certificate issued by the office of the Fire Marshall on January 30, 2020. His plan was to become a firefighter. But his criminal conviction will now be an obstacle to this goal. Mr. McLean stated that while studying at Seneca College he worked on weekends doing demolition. At that time, he also completed a three-day forklift training course for which he provided a certificate dated January 16, 2019.

[16] Mr. McLean has been on bail from 15 days after his arrest. His bail conditions were varied from house arrest to a curfew to allow him to work. Subsequent to being released on bail, he worked 16 months from February 2021 to June 2022 as a forklift operator. He was then hired as a “rodman” or “steelman” at a construction site in Brampton, Ontario where his duties include tying, placing and offloading reinforcement steel bars on and off of trucks. Mr. McLean indicates the work is very hard but said he is satisfied because he is paid very well at $41.00 per hour. He described himself as a good worker, as responsible and reliable and a good team player. Mr. McLean stated that he would like to become a crane operator and has already begun working towards that goal.

[17] Mr. McLean stated that at the time of the offence he had been associating with negative peers who were involved in criminality. He was not employed at the time and he said he was overwhelmed by overhearing his mother crying about money problems. The PSR indicates Mr. McLean was “a happy and optimistic 20-year old young adult” until he found out he was not a biological child of the family. His life after that became “a journey filled with emotional upheavals from finding his true identity and reuniting with his biological mother who is mentally ill”.

[18] It was the three factors, the negative influence of his friends, the family’s financial problems and his discovery of his non-biological family status and unwell mother that were the backdrop to him making the bad decision to rob the cellphone store.

[19] Mr. McLean expressed remorse for the offence and said he learned a lot from his mistakes. He spoke to the court at his sentencing hearing in words and tones I accepted as genuine. He spoke about the difficult period in his life that led him to make the decision to enter the criminal world and stated that he was not attempting to escape fault by explaining his difficult life circumstances at the time. Mr. McLean accepted what I regarded as full responsibility for his bad decision and acts of robbing, assaulting and frightening the vulnerable store attendants with a firearm. He was aware that Mr. Vanniyasingam spoke of improving the store’s security system and offered, as a token of restitution, to provide $500.00 toward the expense of an improved system.

The Complainants

[20] Mr. Vanniyasingam and Mr. Sritharan both received medical treatment in hospital. They both had a three-centimetre lacerations on their heads which required staples. Mr. Sritharan also had a bite mark and bruising on his right arm for which he was prescribed antibiotics. Mr. Vanniyasingam denied having any negative psychological repercussions. He related that his workplace had to install extra security devices.

PRINCIPLES ON SENTENCING

Objectives

[21] Section 718 of the Criminal Code sets down the principles to govern determinations on sentencing, being: to denounce unlawful conduct; to deter the offender and other potential future offenders from committing offences; to separate offenders from society; to assist in rehabilitating offenders; to provide reparations for harm done to victims or the community; and to promote a sense of responsibility in offenders.

Proportionality

[22] Proportionality is a guiding principle for sentencing. A sentence must be proportionate to the gravity of the offence, determined on the particular facts of the case. The narrow focus of the sentencing process is directed at imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: Criminal Code, s. 718.1 and R. v. Hamilton (2004), 1986 C.C.C. (3d) 129 (Ont. C.A.).

Parity

[23] Parity, another governing principle, requires a sentence to be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is, however, an individualized process which necessarily means that sentences imposed for similar offences may not be identical: R. v. Cox, 2011 ONCA 58 and R. c. M. (L.), 2008 SCC 31.

Totality

[24] The totality principle must be considered for some sentences. Section 718.2(c) of the Criminal Code provides “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.” The principle is engaged where there is a sentence for multiple offences and requires the court to craft a global sentence on all offences that is not excessive: R. v. M. (C.A.), 1996 SCC 230, at para. 42. If the cumulative sentence is too harsh, the court must adjust the total sentence in order for it not to be out of proportion to the gravity of the offences.

SENTENCING OBJECTIVES FOR FIREARM OFFENCES

[25] This case involves an imitation firearm which has the appearance of a genuine firearm. The Court of Appeal emphasized that the principles of denunciation and general deterrence must be clearly reflected in sentences for gun-related-offences. As the court stressed, “… our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest terms. The possession and use of illegal handguns in the Greater Toronto area is a cause for major concern in the community and must be addressed.”: R. v. Danvers, 2005 ONCA 30044, at para. 78. The range of sentences for firearm offences is wide: R. v. Nur, 2013 ONCA 677.

RESTRAINT AND REHABILITATION

[26] As a general principle, s. 718.2(d) requires that no offender should be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. That principle elucidates the importance of giving specific attention to restraint in imposing sentence. Canadian sentencing jurisprudence has traditionally focused on the aims of denunciation, deterrence, separation and rehabilitation, with rehabilitation being a relatively late-comer to the sentencing analysis: R. v. Gladue, 1999 SCC 679, at para. 42. The concepts of restraint and rehabilitation are related principles that express Parliament’s growing recognition of the need to focus on restorative alternatives to incarceration in sentencing.

[27] Parliament has mandated that expanded use be made of restorative principles in sentencing as a result of the general failure of incarceration to rehabilitate offenders and reintegrate them into society. By placing a new emphasis on restorative principles, Parliament expects to both reduce the rate of incarceration and improve the effectiveness of sentencing.

[28] Restraint has also become an objective in sentencing for specific categories of offenders.

[29] Section 718.2(e) of the Criminal Code points to a particular focus on the unique circumstances of Indigenous offenders. Parliament directs that courts shall consider “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community, should be considered for all offenders with particular attention to the circumstances of Indigenous offenders. This is clear acknowledgement of the unique circumstances of Indigenous people and their experiences in the criminal justice system, being the over-policing and over-incarceration in their communities: R. v. Gladue, at para. 24.

[30] Recently, the Ontario Court of Appeal in R. v. Morris similarly addressed the over-representation and over-criminalizing of Black men in the criminal justice system. The court recognized that the current experiences of Black people in the criminal justice system require an understanding that today’s reality has its historical roots and social context in the Black experience in Canada. This context requires consideration on sentencing Black people.

[31] Mr. McLean is, and of course was, a young Black man when he committed the crime. He was raised by financially modest, hard-working foster parents who were generous enough to take Mr. McLean as a foster child when they had three other children.

[32] The Ontario Court of Appeal held that some term of imprisonment will usually be required to reflect the seriousness of gun crimes, but recognized that:

The requirement of a sentence of imprisonment does not, however, end the operation of the restraint principle. That principle requires the court, if it determines that a sentence of less than two years imprisonment would be appropriate, to consider whether the term of imprisonment could be served in the community under a conditional sentence: Criminal Code, s. 742.1. The restraint principle favours conditional sentences over incarceration if a conditional sentence is consistent with the proportionality principle: see R. v. R.N.S., 2000 SCC 7, at para. 21.

[33] Consideration is also given in sentencing young people and first offenders caught up in the criminal justice system.

[34] Regarding youthful offenders, Canadian courts have long recognized the principle of fundamental justice, that young people are entitled to a presumption of “diminished moral blameworthiness or culpability” owing to the fact that due to their age, “they have heightened vulnerability, less maturity and a reduced capacity for moral judgment”. There is a requirement for restraint in sentencing young people: R. v. D.B., 2008 SCC 250, at para. 41.

[35] On first offenders, Rosenberg, J.A. (as he then was) offered the following observations:

... it has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges consider community-based dispositions first and impose more serious forms of punishment only when necessary.

[36] The court continued:

The duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can be avoided merely by invoking the objective of general deterrence. It should be clear from the record of the proceedings, preferably in the trial judge's reasons, why the circumstances of this particular case require that this first offender must receive a sentence of imprisonment.

R. v. Priest, 1996 ONCA 1381, at paras. 18 and 20

[37] Mr. McLean is a young Black man, first time offender, age 21 at the time of the offence. Restraint should be a consideration is his case. He is also a good prospect for rehabilitation.

[38] Mr. McLean has close and supportive family ties with his foster parents and siblings, has lived a prosocial life of employment and responsible behaviour from high school until his criminal involvement and thereafter, has no significant issues in school, no prior criminal involvement, success at post-secondary accreditation for various employment endeavours and has set goals for his life. Mr. McLean also succeeded in obtaining a bail variation allowing him to work which he continues to the present. There is no evidence of any breaches of his bail terms. He is ambitious and is saving money to start a business in the transport of medical patients.

PARTIES’ POSITIONS

[39] The Crown seeks a global sentence of three years less credit for time served. Mr. McLean was in custody for 15 real days from February 13 to February 27, 2020. He is entitled to 1.5:1 credit which rounded off is 23 days: R. v. Summers, 2014 SCC 26. From February 27, 2020 to February 2021, Mr. McLean was on restrictive house arrest. From February 2021 his bail was varied allowing him to work under a tight curfew.

[40] The Crown recognizes the impact on his liberty that his bail conditions have imposed and proposes that a total of nine months be credited for the restrictive pre-trial bail conditions: R. v. Downes, 2006 ONCA 3957, 205 CCC (3d) 488. Taking the credits into account, the Crown proposes a penitentiary sentence between 2½ to 3 years.

[41] The Crown also proposes a 10-year Criminal Code, s. 109 firearm prohibition. And given the conviction on a primary designated firearm offence, the law mandates under s. 487.051(1) of the Criminal Code, that Mr. McLean provide a DNA sample.

[42] The defence proposes as a fit a sentence of 2 years less a day, followed by 3 years’ probation. I accept the defence’s calculation that Mr. McLean’s time on house arrest comprises about 25% of his bail time which amounts to about 11 months. And adding the 23 days’ Summers credits for time served in pre-trial custody, the total credit amounts to approximately 1 year. The defence does not oppose the ancillary orders requested by the Crown.

APPROPRIATENESS OF A CONDITIONAL SENTENCE

[43] Mr. McLean faces charges of robbery, possession of an imitation firearm during the commission of an indictable offence and assault causing bodily harm.

[44] Reforms to the Criminal Code enacted on November 17, 2022 removed mandatory minimum sentences for several types of criminal offences including firearm crimes such as robbery with a firearm.

[45] The impetus behind the amendments was Parliament’s realization that mandatory minimum penalties for certain offences such as firearm offences have not deterred crime, but rather have resulted in the over-incarceration of Indigenous peoples, Black Canadians and members of other marginalized communities. The objective of the amendment is to take a step towards addressing systemic racism and discrimination in the justice system and establishing more effective, evidence-based policies to keep communities safe and to reduce re-offence: Legislative Summary of Bill C-5: An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, Parts 1.12 and 1.13.

[46] This allows for consideration of a conditional sentence for Mr. McLean’s offences.

[47] In deciding the appropriateness of a conditional sentence, I am guided by the sentencing principles set down under sections 718 to 718.2 and s. 742.1 of the Criminal Code.

[48] Section 742.1 provides:

742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;

(b) the offence is not an offence punishable by a minimum term of imprisonment;

[49] To decide whether an offender should serve their sentence in a federal prison, a reformatory or in the community under strict terms including house arrest, consideration must be given to whether permitting the offender to serve their sentence in the community will endanger the safety of the community.

[50] The Supreme Court of Canada in R. v. Proulx endorsed the principle that conditional sentences were introduced by Parliament to reduce reliance on incarceration and to increase the use of restorative justice principles in sentencing: R. v. Proulx, 2000 SCC 5, at para. 20. The Court presented factors to consider:

… [T]wo factors should be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. If the judge finds that there is a real risk of re-offence, incarceration should be imposed. Of course, there is always some risk that an offender may re-offend. If the judge thinks this is minimal, the gravity of the damage that could follow were the offender to re-offend should also be taken into consideration. In certain cases, the minimal risk of re-offending will be offset by the possibility of a great prejudice, thereby precluding a conditional sentence.

R. v. Proulx, at para. 69

[51] In answer to the query whether a conditional sentence can sufficiently satisfy the principles of denunciation and deterrence that incarceration seeks to achieve, R. v. Proulx posits:

The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn. [emphasis by the author]

R. v. Proulx, at para. 22

[52] The defence seeks a conditional sentence in the community. The court must weigh the aggravating factors against the mitigating factors in deciding whether the release of the offender into the community on conditions will endanger the community or pose a risk of re-offence.

[53] On the aggravating side is the obvious seriousness of a firearm offence and more particularly the details of how the crime unfolded. Mr. McLean did not play a passive or spectator role in the crime. He took the lead.

[54] Mr. McLean arrived at the cellphone store with others prepared for an armed robbery. He used a cinder block to keep the door open presumably to help with his escape. Mr. McLean carried an airsoft imitation firearm with him that looked authentic and he wore a disguise. He pointed the firearm at and struck both store attendants with it. He bit one of the attendants on the arm. He robbed the store of cellphones and stole one of the attendant’s wallets. There is no doubt about his role. Mr. McLean’s actions were captured on a video recording.

[55] Mr. McLean’s criminal actions cannot be seen to be underplayed or condoned in tailoring a sentence. But neither can the many positive features and tribulations of this young man’s life be overlooked or discounted. It is a balancing based on all the evidence that must be engaged in to arrive at a projection on potential danger and risk.

[56] On the mitigation side there are many facts to consider which I summarize. Mr. McLean:

(a) was a young Black man, age 21, at the time of his offence;

(b) has no criminal antecedents or evidence of poor conduct in school or the community;

(c) has pleaded guilty, although just before trial, but nonetheless took responsibility for his criminal conduct, admitting he was “caught red-handed”;

(d) has expressed remorse speaking to the court in words the court found sincere and heartfelt;

(e) is a male member of the Black community in Toronto where over-incarceration and over-criminalization of Black males is a fact of life;

(f) has the loving, positive support of his family;

(g) was emotionally overcome and in a state of anger and confusion over learning at age 18 that he was not the biological child of the McLeans and learning about and meeting his mother who was a psychiatric patient in a group home in a disturbingly uncommunicative state;

(h) has been ambitious as a young person and young adult earning money by lawful means taking many jobs from early high school to the present to support himself and help his financially modest family;

(i) as a young adult pre-offence, has shown considerable ambition in completing a post-secondary college course and employment training, pre-service fireman accreditation, certification as a forklift operator with plans to become an accredited crane operator;

(j) obtained bail terms allowing him to work as a forklift operator and construction worker which latter work, he continues to the present with no bail compliance issues; and

(k) with his plan of becoming a fireman thwarted by his convictions, has ambitions to start a patient transfer service.

[57] The Ontario Court of Appeal has brought to life the difficult situation a sentencing judge faces in determining sentence for a youthful offender who has committed a serious offence on one hand, and on the other, shows strong potential for rehabilitation:

Sentencing a youthful first offender who demonstrates potential for rehabilitation is a difficult and at times agonizing task. In this case, the offences were serious but the appellant’s potential for rehabilitation is high. The sentencing judge followed a joint submission and imposed the sentence that was plainly at the low-end of the range. It is well-established in the case law that robbery of a convenience store at night while wearing a disguise required custodial time in addition to the one year minimum for the firearms offence. It is clear from the sentencing judge’s reasons that the age and potential of the appellant made him reluctant to impose even that sentence, but that he felt compelled to do so by the law.

R. v. Clarke, 2014 ONCA 296, at para. 18

[58] The sentencing judge in R. v. Clarke imposed a global sentence of two years less a day comprised of the minimum one-year sentence for the use of the imitation firearm and a consecutive term of one year less a day on the offences of robbery and disguise with intent. R. v. Clarke was decided before the enactment of the November 2022 amendments and after the 2012 amendments enacting the mandatory minimums.

[59] There are some similarities between the circumstances of the accused in R. v. Clarke and the case at hand and important distinguishing factors. While my decision has been a difficult one, a modicum of ease comes with the fact that I have before me a more fulsome account of mitigating factors to be considered in Mr. McLean’s case.

[60] The facts in Mr. Clarke’s case are that he entered a convenience store shortly after midnight wearing a mask. He pulled out an imitation handgun and pointed it at the head of the victim. He then pushed the weapon against the victim’s ribs and demanded cash and cigarettes and threatened to shoot the victim if he did not comply. The appellant was arrested shortly thereafter near the scene of the robbery.

[61] Mr. Clarke’s case involves the following mitigating factors that are similar to Mr. McLean’s situation. Mr. Clarke: was a youthful offender at 19 years of age; pleaded guilty and acknowledged the seriousness of his offence; was a very good candidate for rehabilitation; had a supportive family and supportive letters from co-workers and friends; and had spent several months on fairly restrictive bail release and had complied with all release terms.

[62] There are distinctions with R. v. Clarke. From the enumeration of the mitigating factors I have set out above, it can be seen that Mr. McLean’s circumstances, from a very young age before his offence, present with a detailed account of a very prosocial life of employment, contributing financial support to the family and pursuing educational opportunities and certifications to advance his employment opportunities. And post-offence while on bail, Mr. McLean obtained an exception to work in construction which he continues to the present with no bail compliance issues. He also has a future plan to set up a patient transfer business which he is saving for from the earnings he is making during bail.

[63] Added to this is the emotional upheaval Mr. McLean experienced before the robbery of learning the shocking information about his non-biological family status. In addition to pleading guilty, expressing remorse and taking responsibility for his actions, Mr. McLean also undertook to provide restitution to the store he robbed.

[64] It is not evident whether Mr. Clarke is a Black man. His case was heard before R. v. Morris was decided and prior to the November 2022 amendments where the Ontario Court of Appeal and Parliament took into consideration the impact of the adverse and discriminatory treatment of Black men in the criminal justice system. There is no mention of such a consideration in R. v. Clarke.

[65] I am obligated to take the R. v. Morris decision and the objectives behind the 2022 amendments into account in fashioning a sentence for a Black man. Besides evidence about the financial vulnerability of the family, I have not been presented with the facts of Mr. McLean’s circumstances from a racial perspective. However, I may take judicial notice of the existence of overt and systemic anti-Black racism in Canadian society and the criminal justice system in particular: R. v. Morris, at paras. 41 and 42.

CONCLUSION

[66] I find Mr. McLean is a good prospect for a conditional sentence. Taking his background and current circumstances into account, I see that he has made great strides to live a pro-social and productive life. He has achieved accreditation to qualify for certain jobs. He has shown a great deal of ambition from a young age to help his family and himself through lawful sources of income. He does not have a criminal record and has had no anti-social issues at schools or in the community.

[67] Post-offence Mr. McLean pleaded guilty, showed remorse and took responsibility for his crimes offering restitution to the store he robbed. He sought and received permission to work while on bail and has obtained a well-paying, hard-labour job to support himself and assist with raising funds for his future business. He has well-defined goals and future aspirations.

[68] Mr. McLean fits into several categories of those offenders that should be considered for restraint and rehabilitative sentencing options. He is youthful, a Black man and a first offender. Together with the other mitigating factors in his case, I find a conditional sentence is appropriate. Mr. McLean has committed a serious offence which attracts general deterrence and denunciatory considerations. However, in deciding sentence those principles must be squared with the restorative principles of restraint, rehabilitation and reparation. As the Supreme Court of Canada observed:

No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law.

R. v. Nasogaluak, 2010 SCC 6, at para. 43.

[69] A conditional sentence is not a get out of jail free card. It is more effective than incarceration at achieving the restorative objectives as well as the punitive sanctions of denunciation and deterrence. The degree of restrictiveness of the conditions are at the discretion of the judge. If the accused breaches any restriction the offender may be ordered into custody to serve out the balance of the sentence.

[70] Mr. McLean’s venture into the criminal world appears to be inconsistent with the general substance and trajectory of his life before and after his crime. His discovery of his non-biological family status, his family’s financial woes and his association with criminal elements seem to be the catalysts that coalesced at a particularly difficult time in his life and motivated his criminality which he has shown to my satisfaction he sincerely regrets.

[71] I see little or no danger to the community with release and little or no risk to re-offend.

[72] I accept the defence’s proposal on sentencing.

[73] I weighed the aggravating and mitigating factors with the objectives of denunciation and deterrence in mind given the seriousness of a firearm offence, together with the restorative objectives of restraint and rehabilitation in view of the many positive features of Mr. McLean’s life, and conclude that a global sentence of 2 years less a day to be served in the community, followed by a period of probation, is a fit sentence. I reduce the sentence by 1 year owing to pretrial time served and restrictive bail conditions to be followed by a 3-year probationary period under the terms set in my order below.

SENTENCE

[74] I will now pass sentence. Matthew McLean will you stand?

[75] I find you guilty on count 1 on the indictment of robbery contrary to s. 343 of the Criminal Code.

[76] I find you guilty on count 5 on the indictment of assault causing bodily harm to Thanushan Vanniyasingam contrary to s. 267(b) of the Criminal Code.

[77] I find you guilty on count 6 on the indictment of using an imitation firearm during the commission of an indictable offence contrary to s. 85(2) of the Criminal Code.

[78] I sentence you to a global sentence of two years less a day on count 1, count 5 and count 6 on the indictment to be served in the community, reduced to one year for pre-trial custody and restrictive bail conditions.

[79] You shall therefore serve a one-year conditional sentence.

[80] I order a probationary period of three years to follow the conditional sentence.

[81] The one-year conditional sentence period and the three-year probationary period shall be on the same terms which are as follows:

(a) You shall report to your probation officer as required.

(b) You shall reside at an address approved by your probation officer and keep the probation office apprised of any change of address.

(c) You shall attend and actively participate in counselling programs as recommended by your probation officer and sign any necessary releases allowing the probation office to monitor your involvement in the programs.

(d) You shall seek and maintain full-time employment or enrol in school full-time and provide proof of this.

(e) You shall appear at court attendances as required.

(f) You shall not to have any type of contact with Thanushan Vanniyasingam or Kageewan Sritharan.

(g) You shall not be within 100 metres of Best Mobilez, Unit 117, in the plaza located at 3331 Markham Road in Scarborough, Ontario.

(h) You shall abstain from owning, possessing or carrying any weapons as defined under the Criminal Code, being any firearm, replica firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.

[82] I make the following ancillary orders:

(a) I impose a ten-year Criminal Code s. 109 firearm prohibition;

(b) I order a DNA sample be provided pursuant to s. 487.051(1) of the Criminal Code;

(c) I make a forfeiture order for the firearm and any other item seized by the police.

Allen J. Released: November 3, 2023