Court File and Parties

Court File: CR-24-00000012-0000 Date: 2024 06 11

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING v. PABLO BANTON

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE JUSTICE C. CONLAN on June 11, 2024, at MILTON, Ontario

APPEARANCES: A. Khoorshed Counsel for the Crown N. Fitzmaurice Counsel for Pablo Banton

Reasons for Sentence

CONLAN, J. (Orally):

Mr. Banton is before the court to be sentenced on a serious matter arising from the following facts: On June 7, 2022, at 2:30 p.m., four unknown suspects attended the Halton Pharmacy, located at 1060 Speers Road in Oakville.

The suspects stole multiple pill bottles containing oxycodone, Adderall, hydromorphone, hydrocodone, and amphetamine, using a garbage bin containing a black plastic bag. One of the prescription bottles had an Apple AirTag, which was used to locate three vehicles of interest.

Investigators observed an unknown suspect place a black plastic bag into a 2017 BMW sedan. The BMW was followed to the parking lot of Montana's Steakhouse at 60 Courtney Park Drive East, in Mississauga. Mr. Banton and three other men were observed exiting the vehicle and entering the restaurant. A short while later, Mr. Banton exited Montana's and re-entered the BMW.

At 8:17 p.m., officers approached the vehicle to arrest the occupants. Mr. Banton initially ran from the vehicle, but stopped a short distance away and was arrested.

A .23 Gen4 Glock 40 caliber handgun, loaded with 13 rounds of ammunition, was found concealed in Mr. Banton's underwear. The handgun was capable of firing the ammunition at a barrel length in excess of 93 millimetres and was therefore a prohibited firearm within the meaning of the Criminal Code. At the time of his arrest, Mr. Banton did not have an authorization or license to possess a prohibited firearm. The stolen pills were found in the BMW during a subsequent search.

Mr. Banton entered a guilty plea to the offence before the court, namely Count 8 on the indictment, dated January 22, 2024. Count 8 reads as follows: that Pablo Banton, on or about the 7th day of June, in the year 2022, at the City of Mississauga, in the said Region, and or elsewhere in the province of Ontario, did possess a loaded prohibited firearm, contrary to s. 95 (a) of the Criminal Code. On the prior date when the plea was entered, the court registered a finding of guilty. There is now a conviction registered on that matter.

There was a pre-sentence report prepared, Exhibit Number 1. It indicates that Mr. Banton is, today, 20 years of age, born October 29, 2003. He is a Canadian citizen without dependants. The report indicates that he is the second of three siblings born from the relationship of his parents. Prior to his current incarceration, Mr. Banton was residing with his mother, three brothers, and his grandfather.

The report, particularly at page 3, indicates that Mr. Banton had a relatively positive upbringing. Although his parents separated when he was in the ninth grade, he has had good family support over the years. He has been in a relationship with Miss Apphia Amos for approximately three years.

He graduated from high school and had no major issues while in school. Prior to his incarceration, Mr. Banton worked for six months in the carpentry field. He indicated to the author of the report that he would like to start a career as an electrician in the future.

There are no substance use issues to speak of, or addictions. Mr. Banton presented as polite, respectful, and engaged throughout the interview process for the purposes of the pre-sentence report. He indicated to the author of the report that he does not believe that he has faced any, at least overt, racism, discrimination, or prejudice prior to his current incarceration.

He did indicate that he feels that he has been treated differently by staff in the institution that he is currently housed in, as compared to the non-black inmates. He told the author of the report about overly harsh conditions at the jail.

I would describe the pre-sentence report as, overall, quite positive. The author of the report concludes by saying that Mr. Banton appears suitable for community supervision. The author describes Mr. Banton as a young, 20-year-old first-time offender.

The affidavit sworn by Mr. Banton, which is Exhibit Number 2, describes, in my view, egregious circumstances at the correctional facility. The court recognizes that jails are not meant to be fantasy lands, but they do house inmates who are presumed to be innocent. The jails are not only for people who have been found guilty and convicted of criminal offences. They are holding facilities for people who are awaiting trial. During that time, those inmates are presumed to be innocent of the charges that they are facing. They should not be exposed to intolerable conditions.

Quite frankly, even inmates who have been found guilty and convicted ought not to be exposed to intolerable conditions. Some of what Mr. Banton has said in his affidavit includes the following: that there have been times when he has not been allowed to leave his cell for up to nine days in a row; feeling dirty and depressed in the jail; lack of sleep; frequent, regular, I would say chronic, lockdowns; black mold inside the facility that inmates, themselves, often have to try to clean; a lack of fresh bedding and clothing; overly cold temperatures inside the facility; a lack of fresh air; a lack of any decent time outside; triple-bunking in the cell.

Since February 22, 2024, that's several months now, Mr. Banton has been in a cell with two other people. Eight cells on his range are now triple bunked. There are far more people on his range, currently, than there is supposed to be. At paragraph 8 of his affidavit, Mr. Banton says, "I volunteer to sleep on the floor because the new person in the cell is older, around 45 years old, I think," which means I must be very old, "but that person has bad knees, so it would be hard for him to sleep on the ground or on the top bunk."

Mr. Banton says, [As read]:

I sleep on a mattress that is next to the bunks. Sleeping on the floor is very uncomfortable. The floor is concrete, the mattress is thin; I think about three inches thick. When I wake up, my back and neck ache. The cell is small and there is a stool to get up onto the top bunk at the back of the cell, so I have to put the top of the mattress near the toilet and sleep with my head near the toilet. Because of that, my two cellmates have to step over me to use the toilet during the night. So that they don't use the toilet near my head, I get out of bed and stand or sit on the stool. This happens most nights and makes it hard to get a good sleep. It also means three people have to share one toilet and one sink.

It has made the lockdowns even harder because when we are not locked down, we can use the toilet on the range. But when we are locked down, we have to use the toilet in front of each other, with only a sheet to block the view. I try to wait until the lockdown is over to use the toilet, but sometimes I can't.

Mr. Banton also describes in the affidavit inadequate access to telephones, an inability to talk to his mother, who he describes in paragraph 11 of his affidavit as his lifeline, trouble getting medical attention while at Maplehurst.

Paragraph 12, Mr. Banton says, quote, [As read]:

I have a lump on my chest that is about the size of a loonie. It hurts when I touch it or when things press against it.

In September 2023, they took me out of the prison to the hospital to get it checked, but I never got the results. So that is nine months ago. Since then, I have filled out medical forms and asked to see the nurse many times, but I still haven't been able to see the nurse. The lump isn't growing, but it scares me because I don't know what it is.

I can understand somebody being very anxious about that at the jail.

As Mr. Fitzmaurice has summarized in the materials filed by the defence, in terms of Summers Credit, Mr. Banton has been in custody for a total of 477 days. March 9, 2023 through to June 11, 2024, that's 461 days. Plus a further 16 days between June 7, 2022 and June 22, 2022.

Using the standard calculation of 1.5 days for every one day spent in pre-sentence custody, pre-sentence custody equates to a total of a little more than 715 days, or roughly 25-and-a-half months. Mr. Banton's pre-sentence custody has involved being fully locked down for a total of 111 days, partially locked down for 43 days, triple-bunked for 103 days, and the actual records from Maplehurst Correctional Complex are included in the materials filed by the defence.

This is undoubtedly a very serious crime that was committed by Mr. Banton. Walking around in the community with a prohibited firearm that's loaded is terribly dangerous to the person who is in possession of it, but also to anyone who's confronted by that person; anyone who is in the company of that person. Even by accident, sir, you could have killed yourself or seriously injured yourself, or killed or seriously injured someone else. I'm not suggesting that you would have intentionally used the firearm against someone else, but accidents happen. That's why it's a prohibited firearm.

That type of criminal conduct must be sufficiently denounced by the court, and the court has to send a message to all like-minded people in the community that they should not take their chances with serious business like this, because if they do, even if there are mitigating factors in play, they will go to jail, and they will almost certainly go to the penitentiary. Even first-time offenders, even young first-time offenders like yourself, even young first-time offenders with relatively good characters otherwise, like you, Mr. Banton.

It's a very serious offence, and the court must express its strong condemnation of this type of conduct. There are, however, some mitigating factors in this case: your relative youth, you are barely an adult; your lack of any criminal history; your guilty plea, which is a sign of remorse and acceptance of responsibility; your positive pre-sentence report; and it is also mitigating the excessively harsh conditions that you have endured in pre-sentence custody.

So taking into account the seriousness of the offence, the mitigating factors, the most important sentencing principles in this case, which I think are denunciation, general deterrence, and rehabilitation, taking all of that into account, I think that the joint submission put forward by counsel is a very reasonable one.

It's well within the range, and the court will accept the joint submission. The warrant of committal will express the sentence this way: 477 days pre-sentence custody, credited as the equivalent of 30 months in custody, leaving a net sentence of time served.

Mr. Banton is sentenced to a period of probation for three years. All of the statutory terms apply. In addition, Mr. Banton shall have no contact or communication, directly or indirectly, by any means, with the related accused persons whose names were read into the record by Mr. Khoorshed. You heard those names, right, Mr. Banton?

PABLO BANTON: Yes.

THE COURT: Further, Mr. Banton is prohibited, as part of the probation order, from being in possession of any firearm or weapon as defined in the Criminal Code. As I indicated earlier, the victim fine surcharge is waived, the secondary DNA order is imposed, the forfeiture order has been signed, and the s. 109 order is also made.

Counsel, before I ask Mr. Banton whether he understands the sentence, is there anything that I left out?

MR. FITZMAURICE: I don't believe so, Your Honour.

THE COURT: Mr. Banton, stand up, please. The forfeiture order, you understand that there are items that you have forfeited to the Crown, you're not getting them back.

PABLO BANTON: Yes.

THE COURT: You understand that? The DNA order, it's usually taken by way of a blood sample. You must cooperate with the police in giving the sample of your DNA. If you do not, you could be charged with a further criminal offence, and if found guilty of that offence, you could go to jail as a result. Do you understand?

PABLO BANTON: Yes.

THE COURT: The firearms and weapons prohibition order, you must obey that order. If you do not, you could be charged with a further criminal offence of breaching the s. 109 order, and you could go to jail if found guilty of that. Do you understand?

The probation order: upon your release from custody, you will be the subject of a probation order for three years. You will receive a copy of the order. It spells out in detail the terms and conditions of the order. You must obey the probation order. If you want a variation, an amendment to the probation order, you have to speak to the probation office about that. But unless and until it is amended, you must follow it to the letter.

If you do not follow the probation order, I guarantee you, you will be charged with breach of probation by the police, and if you're found guilty of breach of probation, at least with this judge, you will go to jail. Not may, you will go to jail for breaching the probation order. Do you understand?

PABLO BANTON: Yes.

THE COURT: Do you have any questions you want to ask me about the sentence?

PABLO BANTON: No.

THE COURT: Okay.

Certificate of Transcript

FORM 2 Certificate of Transcript Evidence Act, subsection 5(2)

I, Kimberly Griffin, certify that this document is a true and accurate transcript of the recording of Rex v. Pablo Banton, in the Superior Court of Justice, held at 491 Steeles Avenue E, Milton, Ontario, taken from Recording No. 1211_6_20240611_094813__10_CONLANC.dcr, dated June 11, 2024, which has been certified in Form 1 by Nikolina Perkovic.

June 14, 2022

Date (Authorized Transcriptionist)

Kimberly Griffin ACT ID# 4259281941 (905)379-1716 kimgriffinact@gmail.com