R. v. Jogiyat, 2024 ONSC 3498

COURT FILE NO.: CR-22-00000208-0000 CR-22-30000389-0000 CR-23-30000064-0000

DATE: 20240618

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

SALMAN JOGIYAT

C. Otter and S. Scratch, for the Crown

E. Lam and A. Ruffo, for Mr. Jogiyat

HEARD: February 5-7, March 4-6, 8, June 11, 2024

REASONS FOR SENTENCE

SCHRECK J.:

[1] Salman Jogiyat committed a number of very serious offences over a period of about two months when he was 18 years old. He is now before the court to be sentenced for attempted murder, conspiracy to commit the offence of forcible confinement, unauthorized possession of a loaded firearm, possession of a firearm while prohibited, and trafficking in a controlled substance.

[2] This was an unusual sentencing hearing. It took place over the course of several days and the court heard from a number of expert witnesses on a number of issues. Counsel for both sides provided lengthy and detailed oral and written submissions. There is a very wide gap between the positions of the parties. The Crown submits that the appropriate total sentence is imprisonment for 22 years. The defence submits that the appropriate length is eight years.

[3] The offences Mr. Jogiyat committed were very serious. While participating in a home invasion robbery he had planned with the assistance of others, he attempted to murder one of the victims by discharging a firearm at him several times, causing serious injuries. Mr. Jogiyat and others also conspired to forcibly confine another person whom Mr. Jogiyat believed possessed information about the murder of his cousin. All of these offences involved significant planning. In addition to this, Mr. Jogiyat sold cocaine to others on numerous occasions. He was in possession of a loaded firearm at the time of his arrest.

[4] Mr. Jogiyat is now 22 years old. He is a Muslim of South Asian origin. He grew up in poverty and was the victim of violence, including being shot on two occasions. He has significant cognitive impairments. He has a supportive family and a psychologist who assessed him reports that he has made progress in gaining insights into his behaviour and is working towards becoming a law-abiding and productive member of society. He has no adult record, although he was found guilty as a youth of drug trafficking, possession of the proceeds of crime and failing to comply with a recognizance.

[5] This is a difficult sentencing. On the one hand, Mr. Jogiyat committed serious offences and the sentences I impose must give effect to the objectives of general deterrence and denunciation. At the same time, Mr. Jogiyat was very young when he committed the offences and a number of factors in his background mitigate to some extent his degree of moral culpability, all of which require that I give effect to the objective of rehabilitation. Ultimately, the sentence must reflect an appropriate balance of these competing objectives having regard to the various aggravating and mitigating factors that exist in this case. The following reasons explain how I have attempted to achieve that balance.

I. FACTS

A. The Counts

[6] On October 3, 2023, Salman Jogiyat entered a “Faulkner plea” to one count of attempted murder, which was Count 4 on an Indictment dated March 23, 2022 (Indictment #1).[^1] Mr. Jogiyat was also charged with one count of robbery on the same indictment. While he did not enter a plea to that charge, he admitted the facts underlying it. On February 7, 2024, Mr. Jogiyat entered the same pleas to the following charges on an Indictment dated July 7, 2022 (Indictment #2): conspiracy to commit the offence of forcible confinement (Count 1); unauthorized possession of a loaded prohibited firearm (Count 5); and possession of a firearm while prohibited (Count 7). On the same date, he entered the same plea to a count of trafficking in a controlled substance on an Indictment dated January 17, 2023 (Indictment #3).[^2]

B. Facts of the Offences

(i) Attempted Murder

[7] Mr. Jogiyat’s cousin, Maaz Jogiyat, was murdered on June 9, 2020 by an individual called Maviya Tahir.[^3] By July 2020, Mr. Jogiyat had come to believe that an individual called Wahidullah Wahidullah was involved in his cousin’s death. Beginning on July 23, 2020, Mr. Jogiyat, with the assistance of several associates, began making efforts to locate Mr. Wahidullah, including placing a GPS tracker on a car belonging to Mr. Wahidullah’s surety. At the time, Mr. Jogiyat’s telephone communications were being intercepted by the police pursuant to an authorization. On July 24, 2020, a call between Mr. Jogiyat and another person was intercepted in which they discussed Mr. Wahidullah’s presence at an apartment where he lived with two other people, Radostina Komitova and Tamim Tarzi.

[8] In the early morning hours of July 26, 2020, Mr. Jogiyat and three other people went to the apartment building where Mr. Wahidullah lived. Their intention was to rob him. Mr. Jogiyat and at least one of his companions were armed with firearms. At that time, Mr. Jogiyat did not intend to kill Mr. Wahidullah.

[9] Mr. Jogiyat and two of his companions knocked on the door of the apartment. Ms. Komitova opened the door and Mr. Jogiyat and his companions forced their way in and asked, “Where is the money?” They went into the living room, where Mr. Wahidullah was with another man, Syed Alam. The confrontation escalated and Mr. Jogiyat formed an intention to kill Mr. Wahidullah, which he attempted to do by shooting him several times. One of Mr. Jogiyat’s companions shot Mr. Alam. A number of cartridge cases from two different guns as well as several projectiles were later found in the apartment.

[10] Mr. Wahidullah suffered gunshot wounds to his back, just above his right buttock, his right tibia and his left foot. He had to undergo surgery to his bladder, bowel, colon and abdomen and had to have part of a broken pelvic bone removed. He was hospitalized for several weeks, including time spent in intensive care, and required physiotherapy and other rehabilitation measures afterwards.

[11] Mr. Alam suffered gunshot wounds to his chest, flank area and hand. He had to undergo surgery and also spent a considerable amount of time in the hospital.

[12] Ms. Komitova prepared a Victim Impact Statement in which she outlined the ongoing psychological effects of the incident. She now has difficulty trusting people and fears others. She is unable to sleep and often has flashbacks of the incident.[^4]

(ii) Conspiracy to Unlawfully Confine

[13] By August 2020, Mr. Jogiyat became aware that the police intended to arrest Mr. Tahir and decided to find Mr. Tahir himself. At the time, Mr. Jogiyat’s communications were being intercepted by the police pursuant to an authorization. On August 11, 2020, Mr. Jogiyat learned that Mr. Tahir had been seen in the company of another individual, Rayyan Bin Adeel. Mr. Jogiyat formed a plan to force Mr. Adeel to either take him to Mr. Tahir or provide him with information about Mr. Tahir’s whereabouts.

[14] Mr. Jogiyat continued to make efforts to locate Mr. Tahir, which included putting a GPS tracker on Mr. Adeel’s vehicle. On August 20, 2020, Mr. Jogiyat purchased a handgun for $4000. Later that day, he received a telephone call from someone who told him that Mr. Tahir had been seen. Mr. Jogiyat said that he was willing to pay $10,000 to anyone who could lead him to Mr. Tahir’s location. He asked the person he was speaking with to continue looking for Mr. Tahir.

[15] Later that day, Mr. Jogiyat spoke to an associate, Mr. Sebape. They discussed using a GPS tracker to locate Mr. Adeel. Mr. Sebape said, “It’s gonna work. We’re gonna take that kid in his car.” Mr. Jogiyat responded, “Yeah, that’s what we’re doing, fam, I swear to God.” They continued to discuss their plan. Mr. Sebape said that Mr. Adeel would be “crying like a bitch” and pleading for mercy. Mr. Jogiyat later spoke to another person from whom he agreed to purchase two handguns with over-capacity magazines.

[16] On August 21, 2020, Mr. Jogiyat spoke to another person about the plan to apprehend Mr. Adeel. He considered whether he should apprehend Mr. Adeel in the underground garage of his apartment building or when he was leaving the elevator and walking towards his apartment.

[17] Later the same day, Mr. Jogiyat had a telephone conversation with an unknown person in which he discussed the possibility of offering a $100,000 bounty for Mr. Tahir instead of searching for him. They also discussed the plan to apprehend Mr. Adeel and whether it should be carried out in the daytime or at night. In a later call, Mr. Jogiyat told another person that he would wear a mask and a hat to conceal his identity when he apprehended Mr. Adeel.

[18] The following day, Mr. Jogiyat instructed another person to have another GPS tracker placed onto Mr. Adeel’s vehicle. The person later confirmed to Mr. Jogiyat that he had done so. The police removed the tracker and placed it onto an unmarked police vehicle. Mr. Jogiyat followed the police vehicle. Marked police cars arrived and boxed in Mr. Jogiyat’s vehicle, after which he was arrested.

(iii) Firearm Possession

[19] When police cars arrived to box Mr. Jogiyat’s vehicle in, he threw a loaded handgun out of the window of his car. It was later recovered by the police. Another individual in Mr. Jogiyat’s car, Mr. Sebape, was also armed with a handgun.

[20] At the time Mr. Jogiyat possessed the loaded firearm referred to earlier, he did not have a licence or any authorization to possess it. He was also bound by a weapons prohibition made on October 5, 2018 after he was found guilty as a youth of drug trafficking offences, possession of the proceeds of crime and failing to comply with a recognizance.

(iv) Drug Trafficking

[21] Intercepted communications showed that in the spring and summer of 2020, Mr. Jogiyat sold cocaine to a number of people. Typically, buyers would call Mr. Jogiyat to order cocaine which Mr. Jogiyat would then arrange to have delivered or would deliver himself. There were at least 62 cocaine transactions involving amounts ranging from one gram to one ounce. On one occasion, Mr. Jogiyat offered to sell 250 grams to an individual. In total, he sold at least 98 grams.

(v) Robbery (Facts Read In)

[22] In July 2020, Mr. Jogiyat had an animus towards an individual named Usman Munir and decided to rob him. On July 11, 2020, he tracked Mr. Munir’s movements using a GPS tracking device and learned that he was at a shopping mall in Hamilton. Mr. Jogiyat and some companions drove there.

[23] Upon arriving, Mr. Jogiyat confronted Mr. Munir, forced him into his own car, and began to drive away. Mr. Munir managed to escape and in doing so suffered abrasions to his wrist and knee.

[24] Mr. Jogiyat and his companions later abandoned Mr. Munir’s car, which was returned to him.

C. Mr. Jogiyat’s Circumstances

(i) Background

[25] Mr. Jogiyat was born in December 2001 and was the third of four children born to his parents, who are immigrants from Gujarat, India. His father has a Grade 5 education and immigrated to Canada in 1993. His ability to speak English is limited and he makes a living and supports his family by selling fruits and vegetables on street corners, supplemented by social assistance. Mr. Jogiyat’s mother has a Grade 10 education and came to Canada in 1995 to marry Mr. Jogiyat’s father pursuant to an arrangement made between their families. She has remained within the home raising the children. Mr. Jogiyat’s parents often experienced difficulties in their relationship and there was often conflict, including domestic violence, between them.

[26] Mr. Jogiyat grew up in poverty in the Thorncliffe Park area of Toronto. The family of six lived in a two-bedroom apartment which was sometimes infested with bedbugs, cockroaches or vermin. The area was marked by frequent criminal activity and as Mr. Jogiyat grew up, he began to associate with people engaged in such activity. He began selling drugs to make money by the time he was in secondary school.

[27] At the time of the sentencing hearing, Mr. Jogiyat enjoyed a good relationship with his parents, sister and younger brother. The family had since moved out of Toronto.

(ii) Education

[28] Mr. Jogiyat experienced difficulties in school from a young age. He was referred for a psychoeducational assessment in Grade 2 and found to have “low average” processing speed and verbal comprehension abilities, “limited” non-verbal reasoning and “very limited” working memory abilities. He was one to two years behind grade level for most academic subjects. His overall cognitive skills were identified as being in the 3^rd percentile. Based on these findings, Mr. Jogiyat was placed into a special education class and remained there through middle school.

[29] By secondary school, Mr. Jogiyat began to experience problems with attendance and assignment completion. He also began to have conflicts with staff and others. He was expelled from school in Grade 10 for committing a robbery. He later enrolled in a different school, where he improved somewhat. Mr. Jogiyat completed high school while in custody awaiting trial on the charges before the court.

(iii) Victimization

[30] In 2019, when he was 17 years old, Mr. Jogiyat was shot in the leg while attending a street festival in the Danforth area of Toronto. He suffered serious injuries and had to undergo multiple surgeries. Mr. Jogiyat did not know who shot him, but believed that he had been shot because he was wearing clothing that indicated that he came from the Thorncliffe Park area.

[31] Mr. Jogiyat was shot again, this time in the arm, in 2020 in Thorncliffe Park. His injuries were not as significant as on the previous occasion. Mr. Jogiyat did not believe the shooting to have been random, and it accordingly had less of a negative effect on him.

(iv) Prior Record

[32] Mr. Jogiyat was found guilty as a youth on October 5, 2018 of trafficking in a Schedule I substance, possession of a Schedule I substance for the purpose of trafficking, possession of the proceeds of crime and failing to comply with a recognizance. He was placed on probation for 18 months.

(v) Conduct While in Custody

[33] Mr. Jogiyat completed high school while in custody and began taking college courses. He has participated in socioemotional and anger management programing. Mr. Jogiyat became more involved with his religion in custody and has connected with imams at the detention centre and has led prayers and taught religion to other inmates.

[34] Mr. Jogiyat’s conduct while in custody includes several findings of misconduct. On April 11, 2021, Mr. Jogiyat was involved in a fight with another inmate and did not stop when instructed to do so by correctional staff, who eventually had to use pepper spray to stop the fight. He was involved in another fight with several inmates on October 15, 2021. On April 22, 2023, he refused to leave the visiting room when instructed to do so and used profanity and threatening language towards the staff member who told him to leave. On May 19, 2023, he again refused to follow instructions from a staff member and threatened the staff member that he will “fuck you up.” He was involved in a physical altercation with a large group of inmates on September 9, 2023.

D. Psychological Assessment

(i) Testing

[35] Dr. Nina Vitopoulos, a clinical and forensic psychologist, completed an assessment of Mr. Jogiyat for the sentencing hearing. She administered the Weschler Adult Intelligence Scale – Fourth Edition (WAIS-IV), which is designed to measure one’s cognitive functioning in various areas as well as general cognitive ability, also referred to as a Full Scale IQ (“FSIQ”). She found that Mr. Jogiyat’s FSIQ was in the 1^st percentile and therefore in the “impaired” category. His verbal comprehension, perceptual reasoning and working memory scores were also in the 1^st percentile and categorized as “impaired.” His processing speed was in the 8^th percentile, which is “borderline.”

[36] The Weschler Memory Scales – Fourth Edition (“WMS-IV”), which measures a person’s ability to learn and remember information, was also administered. Mr. Jogiyat’s visual memory, immediate memory and delayed memory scores were below the 1^st percentile (“extremely low”), and his auditory memory and visual working memory scores were in the 3^rd and 4^th percentile, respectively ( “borderline”).

[37] Mr. Jogiyat’s academic performance was evaluated using the Weschler Individual Achievement Test – Third Edition (“WIAT-III”). He scored in the 3^rd percentile for oral language (“borderline”), the 18^th for basic reading (“low average”), the 27^th for reading comprehension and fluency (“average”), the 6^th for written expression (“borderline”), the 1^st for mathematics (“impaired”), the 2^nd for math fluency (“borderline”) and the 5^th for total achievement (“borderline”).

(ii) Diagnoses

[38] According to Dr. Vitopoulos, Mr. Jogiyat experienced four distinct instances of trauma exposure: (1) experiencing domestic violence as a child; (2) being shot in the leg in 2019; (3) being shot in the arm in 2020; and (4) the murder of his cousin in 2020. Dr. Vitopoulos diagnosed Mr. Jogiyat with Post-Traumatic Stress Disorder (“PTSD”).

[39] Mr. Jogiyat began using prescribed opiates after being shot the first time. He became addicted to them and began purchasing them on the street. He stopped using drugs after being incarcerated. Dr. Vitopoulos diagnosed Mr. Jogiyat with severe Opioid Use Disorder, although she was of the view that it was in remission in a controlled environment.

[40] Dr. Vitopoulos is of the view that while Mr. Jogiyat’s engagement in anti-social behaviour was prominent between the ages of 15 and 18, his current behaviours, attitudes and personality orientation are not consistent with a diagnosis of anti-social personality disorder.

(iii) Information From Mr. Jogiyat

[41] Mr. Jogiyat discussed the charges he is being sentenced for with Dr. Vitopoulos. He told her that he initially began selling drugs to ensure that his family had basic necessities and to sustain his own addiction. As time went on, he became more entrenched in the drug trade. He denied being a “ringleader” or directing others in the drug trade. However, it appears from the admissions he made to support his plea that he at least had other people delivering drugs on his behalf.

[42] Mr. Jogiyat told Dr. Vitopoulos that he began carrying a gun for his own protection after his cousin was murdered. He acknowledged that he became focussed on attempting to discover what had happened to his cousin, although he denied having any specific plan to do anything to the people responsible.

[43] With respect to the attempted murder, Mr. Jogiyat told Dr. Vitopoulos that he had gone to the apartment to speak to Mr. Wahidullah about his cousin’s murder. He saw Mr. Wahidullah’s hand move and believed that he was reaching for a weapon. He panicked and shot Mr. Wahidullah out of fear and on impulse. He maintained that the purpose of his visit to the apartment was to “get answers.” This also appears to be inconsistent with the admission he made that his purpose in attending the apartment was to commit a robbery and that while he was there, he formed an intention to murder Mr. Wahidullah.

(iv) Future Prospects

[44] Mr. Jogiyat completed the Corrections Victoria Treatment Readiness Questionnaire (“CVTRQ”) and his score, according to Dr. Vitopoulos, suggests that he is “ready to commit to change and open to services.” Mr. Jogiyat told her that he no longer feels hate towards anyone and that his plans for the future were to remain committed to his religion, marry his girlfriend, and pursue employment in the construction industry.

[45] As described in more detail later in these reasons, Dr. Vitopolous’s view of the progress Mr. Jogiyat had made since his arrest was generally positive. However, she agreed that the findings of misconduct while in custody described earlier were cause for concern.

E. Systemic Racism and Social Context

(i) The Enhanced Presentence Report

[46] An Enhanced Presentence Report (“EPSR”) was prepared by Michelle Richards, a social worker from the Sentencing and Parole Project. Mr. Jogiyat is a South Asian Muslim whose family is from India. The author of the EPSR noted that Mr. Jogiyat was born and grew up “in a cycle of generational poverty that began with his parents” and noted that the economic inequities in India, where his parents grew up, are rooted in British colonization.

[47] It is noted in the EPSR that racialized people are disproportionately impacted by poverty and unemployment and often live in poor housing conditions. According to 2016 data from the City of Toronto, 79% of the Thorncliffe Park population are visible minorities. Of the residents aged 18 to 64, 41% live in poverty, and 60% of those under the age of 18 do so.

[48] The author of the EPSR stated that the intersection of poverty and race are factors that can lead to the overpolicing of racialized communities. All of these factors can lead young people in those communities to feel socially excluded and see criminal activity as the sole option for success in life. She opined that Mr. Jogiyat’s cognitive challenges likely led to such feelings of exclusion and also played a role in his criminality.

(ii) The Evidence of Dr. Murdocca

[49] Dr. Carmela Murdocca, a Professor of Sociology at York University, was qualified as an expert in racialization and the criminalization of racialized people in Canada. According to Dr. Murdocca, there has been an increase in Islamophobia in recent years, particularly since the events of September 11, 2001. This has resulted in an increase in hate crimes committed against Muslims. According to Dr. Murdocca, there is a link between victimization and criminalization.

[50] Dr. Murdocca testified that racialized individuals, including South Asians, often have negative perceptions of the police. While Black people are the primary victims of racial profiling by the police, this occurs with other racialized groups as well, including South Asians. Many Muslims also experience racial profiling, although it appears that this tends to be in relation to suspected terrorist activity rather than being targeted by the police in relation to general criminal investigations. There is no evidence that South Asians are overrepresented in the prison population.

(iii) The Evidence of Det. Nair

[51] Det. Sajeev Nair, one of the lead investigators in Project Compound, the investigation that resulted in the arrest of Mr. Jogiyat and others, testified that he had lived in Thorncliffe Park for 10 years as a youth and had also worked as a police officer in neighbouring areas. According to him, Thorncliffe Park was a “mid-crime” rather than a “high crime” area.

[52] According to Det. Nair, there was an increase in shooting incidents in Thorncliffe Park beginning in 2019 which the police believed was the result of street gang activity. This resulted in the creation of Project Compound. After the project was completed in 2020, the frequency of shooting incidents returned to their previous level.

F. Emerging Adulthood

[53] Dr. Abby Goldstein, a professor of Applied Psychology and Human Development at the University of Toronto and a Canada Research Chair in the Psychology of Emerging Adulthood, testified that the understanding of how individuals develop from adolescence to adulthood has changed in the past several years. She explained that a person’s physical and sexual maturation is usually reached at around the age of 18 and it had previously been believed that cognitive, psychological and emotional maturity was also complete by that age. It is now understood that people continue to develop in those areas into their mid-20s, a period of development referred to as “emerging adulthood.”

[54] According to Dr. Goldstein, there is a “developmental mismatch” that begins in adolescence and persists until the mid-20s in that two different areas of the brain develop at different rates. The subcortical area, which is associated with emotions and “reward driven behaviour,” develops faster than the prefrontal cortex, which is associated with inhibition and control. As a result, a person’s motivation for reward is heightened in adolescence and emerging adulthood, but the ability to inhibit reward-seeking behaviour because of potential risks or long-term consequences is not yet fully developed. As a result, emerging adults are more likely to engage in risk-taking behaviour, including criminal activity, because they are less able to understand how that behaviour will impact them in the future.

[55] Dr. Goldstein testified that the limitations that exist during emerging adulthood play a greater role with respect to decision-making in circumstances of “hot cognition,” that is, where an individual is making quick decisions in a high-stress or emotionally charged situation. It plays a lesser role in circumstances of “cold cognition,” where the individual has time to process information and is not in an overly emotional state. She agreed that a hypothetical situation of a bank robber planning a robbery over the course of several days was not an example of “straight hot cognition,” although hot cognition and poor overall judgment could be influencing the behaviour.

G. Conditions of Presentence Custody

[56] Mr. Jogiyat has been in custody since his arrest on August 24, 2020. Most of that time has been spent at the Toronto East Detention Centre (“TEDC”).

[57] Records from the TEDC for the period between September 9, 2020 and January 19, 2024, a total of 1228 days, were filed as exhibits. During that period, Mr. Jogiyat was subjected to a full or partial lockdown on 300 days. Of those, 234 were due to staff shortages. Most of the lockdowns were between 6:00 p.m. and 9:00 p.m.

[58] According to the “Inmate information guide for adult correctional facilities” on the Ontario Government website, “fresh air and outside exercise is normally offered every day.”^5 However, Mr. Jogiyat was provided with access to fresh air only 24.62% of the time. The institutional average is 32%.

[59] Although the cells at the TEDC are designed to be occupied by two people, Mr. Jogiyat shared a cell with two other people on 490 days, about 40% of the time.

II. ANALYSIS

A. Overview

(i) The Fundamental Purpose of Sentencing

[60] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation. As the Ontario Court of Appeal recently observed in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 58:

Those objectives will not necessarily point toward the same sentencing disposition. The individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.

While there will rarely be only one possible fit sentence, s. 718.1 of the Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37; R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 30.

(ii) Competing Objectives

[61] The observation in Morris that sentencing objectives do not necessarily point towards the same disposition is particularly applicable to this case. On the one hand, the offences Mr. Jogiyat committed, especially the attempted murder charge, are extremely serious. The high level of seriousness suggests that emphasis must be placed on the objectives of denunciation and deterrence, which implies that a lengthy sentence is appropriate. On the other hand, Mr. Jogiyat is a youthful offender with no prior adult record who is cognitively impaired, suffers from PTSD, and grew up in a disadvantaged environment. These factors suggest that rehabilitation is an important objective requiring the exercise of restraint, which implies a shorter sentence.

[62] The conflicting objectives are reflected in the huge disparity between the positions of the parties. The Crown submits that a sentence of 22 years is appropriate, while the defence submits that a sentence of eight years should be imposed.

[63] My task is to prioritize and blend the different objectives. That task is especially difficult when the sentences required to give effect to the different objectives are so far apart that giving effect to one risks giving minimal or no effect to the other. Imposing the sentence sought by the Crown would undoubtedly serve to denounce Mr. Jogiyat’s conduct and deter him and others from engaging in similar conduct. But imposing such a long sentence would crush any hope of rehabilitation. On the other hand, imposing the sentence sought by the defence may maximize Mr. Jogiyat’s prospects of rehabilitation, but its denunciatory and deterrent effect would be wholly inadequate given the seriousness of the offences.

(iii) The Approach Taken in This Case

[64] Given my conclusion that the sentences proposed by the Crown and the defence are too high and too low, it is obvious that the appropriate sentence must lie somewhere between the two. While this may at first glance appear to be simply a matter of compromise, such a compromise carries with it a danger that it will ultimately fail to adequately meet any of the relevant objectives if the sentence is too long to promote rehabilitation but not long enough to denounce and deter the conduct. The challenge in this case is to arrive at a sentence that accomplishes all of the objectives to some degree and in accordance with the relative importance of each objective, having regard to the gravity of the offence and the degree of responsibility of the offender.

[65] I will begin my analysis by considering the appropriate sentencing range for each of the offences Mr. Jogiyat has been convicted of. I will then consider the relevant aggravating and mitigating factors, following which I will attempt to relate them to the various sentencing objectives. I will then consider the principle of totality. Finally, I will attempt to balance the various sentencing objectives to arrive at an overall fit sentence, adjusted as necessary to address totality concerns.

B. Ranges

(i) Attempted Murder

[66] As was noted in R. v. Forcillo, 2018 ONCA 402, 141 O.R. (3d) 752, at para. 129, “[t]he moral blameworthiness of attempted murder is always very high.” Indeed, there is no distinction between the moral culpability of a person who commits attempted murder from that of a person who commits murder: Forcillo, at para. 130; R. v. McArthur (2004), 2004 CanLII 8759 (ON CA), 182 C.C.C. (3d) 230 (Ont. C.A.), at para. 47. Where a firearm is used, attempted murder has a mandatory minimum sentence of four years: Criminal Code, s. 239(1)(a.1).

[67] In Forcillo, at para. 131, the Ontario Court of Appeal affirmed the sentencing range for attempted murder of six years to life imprisonment that had been set in R. v. Tan, 2008 ONCA 574, 268 O.A.C. 385, at para. 35. That range can be broken down into three subcategories:

• in rare cases, single-digit sentences, such as the six-year sentence imposed in the unusual circumstances in Forcillo, where a police officer attempted to kill an individual after justifiably shooting him in the execution of his duties.[^6]
• sentences of 10 to 16 years in cases involving the use of a firearm in a public place, significant planning and domestic situations: R. v. Cunningham, 2023 ONCA 36, 166 O.R. (3d) 147, at para. 57; R. v. Chevers, 2011 ONCA 569, 282 O.A.C. 388; R. v. Guedez-Infante, 2009 ONCA 739; R. v. Thompson, 2009 ONCA 243, 95 O.R. (3d) 469 (C.A.), at para. 26; R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 148; R. v. K.G., 2010 ONCA 177, 266 O.A.C. 334; R. v. Martin, 2022 ONSC 2354; R. v. Hernandez-Viera, 2022 ONSC 3776, at paras. 27-32; R. v. Abdullahi, 2022 ONSC 543, at paras. 42-45; R. v. Johnson, 2016 ONCA 31; R. v. Dennis, 2013 ONCA 708.
• higher sentences of up to life imprisonment in cases of “stark horror,” very serious and permanent injuries to the victim, or a lengthy criminal record; McArthur, at paras. 48-54; R. v. Pan, 2023 ONCA 362, at paras. 148-156; R. v. Stojanovski, 2022 ONCA 172, 160 O.R. (3d) 641, aff’g 2018 ONSC 4243; R. v. Mesgun (1997), 1997 CanLII 623 (ON CA), 36 O.R. (3d) 739 (C.A.); R. v. Brown, 2009 ONCA 563, 251 O.A.C. 264, at paras. 31-32; R. v. Lieug (1995), O.A.C. 317 (C.A.), at paras. 9-15; R. v. Charlebois, [1987] O.J. No. 886 (C.A.); R. v. Kawal, 2018 ONSC 7531; R. v. Jordan, [2005] O.J. No. 6487 (C.A.), aff’g [2003] O.J. No. 6330 (S.C.J.).

[68] In my view, this case falls into the middle range. While the offence did not take place in public, it did take place within the sanctity of the victim’s home. The murder itself was not planned, but the robbery, which included the use of a firearm, was the subject of considerable forethought. The victim was shot multiple times and sustained serious injuries, as did Mr. Alam. Ms. Komitova continues to suffer long-term psychological harm from being present at the time of the offence.

(ii) Conspiracy to Forcibly Confine

[69] Forcible confinement is punishable by a maximum of 10 years. The sentencing range for this offence is broad and will be dependent on a number of factors, including the duration of the confinement, the circumstances in which it took place, and the purpose for which the accused confined the victim: R. v. Blazevic, 2012 ONSC 875, at para. 62, aff’d 2015 ONCA 789; R. v. Handule, 2023 BCSC 1031, at paras. 72-73. Sentences for conspiracy to commit forcible confinement will generally be lower than those that are appropriate when the offence is actually carried out, as is usually the case for inchoate offences: R. v. Marshall, 2021 ONCA 28, 153 O.R. (3d) 623, at paras. 59-60; Blazevic, at para. 53.

[70] While there are few cases involving sentences for conspiracy to unlawfully confine, it has been suggested that the range is two to three years: Blazevic, at para. 65; R. v. Tiessen, 2021 ONSC 3416. However, one of Mr. Jogiyat’s co-accused, Mothusi Sebape, pleaded guilty to conspiracy to forcibly confine based on the same facts and received a sentence of one year as part of a global resolution involving a number of charges: R. v. Sebape, unreported, January 15, 2024 (Ont. S.C.J.). Having regard to these authorities and the parity principle, I conclude that the appropriate range in this case is one to three years.

(iii) Firearm Possession

[71] The sentencing range for possessing a loaded restricted or prohibited firearm in circumstances where the possession is related to or for the purpose of engaging in other criminal activity is well established as being between three and five years: ”: R. v. Graham, 2018 ONSC 6817, at para. 38; R. v. Marshall, 2014 ONCA 692, at paras. 47-48; R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at paras. 128-129; R. v. Mansingh, 2017 ONCA 68, at paras. 21-24; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 82.

[72] One of Mr. Jogiyat’s co-accused, Moosa Jogiyat, pleaded guilty to possession of a firearm and the facts in relation to the conspiracy to unlawfully confine were read in. He received a total effective sentence of four years: R. v. Jogiyat, unreported, September 27 and December 1, 2023 (Ont. S.C.J.).

[73] The offence of possession of a firearm while prohibited can be considered as an aggravating factor in relation to the possession charge, in which case the sentence imposed for violating the prohibition order should be concurrent. Alternatively, it can be considered separately, in which case the sentence should be consecutive: R. v. McCue, 2012 ONCA 773, 299 O.A.C. 14, at paras. 21-22; R. v. Chambers, 2013 ONCA 680, 295 C.R.R. (2d) 314, at paras. 21-25. Either way, the violation of a prohibition order usually attracts an increase in the overall sentence of somewhere between six months and a year: R. v. Morgan, 2024 ONSC 1344, at para. 38; R. v. Ellis, 2013 ONSC 3092, at para. 30, aff’d 2016 ONCA 598, 206 ONCA 598, 132 O.R. (3d) 510; McCue, at para. 23.

(iv) Drug Trafficking

[74] The sentencing range for a street-level cocaine trafficker like Mr. Jogiyat is between six months and two years: R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at para. 15; R. v. Ahmed, 2016 ONCA 831, at para. 4; R. v. Bailey-Ricketts, 2014 ONSC 1834, at para. 49. The fact that the trafficking in this case was ongoing over a substantial period of time and involved the total sale of a significant quantity of cocaine suggests that a sentence at the higher end of the range is appropriate.

(v) Applicability of the Ranges

[75] If the sentences for each offence are to be consecutive, the total range in this case would be 16 to 27 years, depending on the relative weight to be given to the various aggravating and mitigating factors, which I will consider shortly. However, regard must also be had for the principle of totality, which will be discussed later in these reasons.

[76] In considering these ranges, the following observation from R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 57, should be kept in mind:

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case

C. Aggravating Factors

(i) Planning

[77] The offences involved significant degrees of planning. Mr. Jogiyat used tracking devices to track Mr. Adeel, Mr. Munir and Mr. Wahidullah’s surety in order to locate them for the purpose of carrying out the planned offences. He enlisted others to assist him in planning the unlawful confinement and the robbery that resulted in the attempted murder, as well as the robbery of Mr. Munir. He obtained a new phone immediately prior to the home invasion and arranged to have a getaway car ready for when it was completed. Intercepted communications showed that he had specifically turned his mind to the possibility that people other than his targets might be present.

(ii) Injuries to Victims

[78] The attempted murder caused serious physical and psychological injuries to the victims. Mr. Wahidullah suffered four gunshot wounds, required multiple surgeries and continues to have health problems resulting from his wounds. Mr. Alam suffered three gunshot wounds with similar consequences.

[79] As outlined in her VIS, Ms. Komitova suffered severe psychological damage as a result of the home invasion and continues to suffer from flashbacks.

(iii) Home Invasion

[80] The attempted murder took place in the sanctity of a private dwelling in what was, in essence, a “home invasion.” This is a significant aggravating factor: R. v. Wright (2006), 2006 CanLII 40975 (ON CA), 83 O.R. (3d) 427 (C.A.), at paras. 13-15; R. v. J.S. (2006), 2006 CanLII 22101 (ON CA), 81 O.R. (3d) 511 (C.A.), at paras. 32-34. As was observed by Nordheimer J. (as he then was) in R. v. P.H., [2006] O.J. No. 885 (S.C.J.), at para. 73, such offences “strike at the fundamental and natural desire and expectation that every person has, that is, to feel safe and secure in their own homes.”

(iv) Use of a Firearm

[81] Mr. Jogiyat was prepared to arm himself with an illegal firearm and, in the case of the attempted murder, was clearly prepared to use it: R. v. Hilbach, 2023 SCC 3, 477 D.L.R. (4^th) 84, at para. 73. When he was about to be apprehended by the police, he disposed of the firearm in a public location: Morris, at paras. 171-172.

(v) Prior Record

[82] While Mr. Jogiyat has no adult record, he has a youth record and the offences he is being sentenced for are not his first involvement with the criminal justice system. Furthermore, he was bound by a firearms prohibition order at the time he decided to possess and use a firearm.

(vi) Variety of Offences

[83] In addition to this, the fact that Mr. Jogiyat engaged in a variety of different types of criminal activity over the space of a relatively short period is, in my view, an aggravating factor.

D. Mitigating Factors

(i) Pleas

[84] While Mr. Jogiyat did not technically plead guilty, he did not contest the charges and has accepted responsibility for his conduct. The mitigating effect of such an acceptance of responsibility will vary with the circumstances of each case: R. v. C.L., 2023 ONCA 691, at para. 11; R. v. Gamble, 2013 ONSC 7615, 62 M.V.R. (6^th) 107, at paras. 107-110. However, it will almost always have some mitigating effect. As pointed out in Gamble, at para. 107, “even where a plea is not a manifestation of genuine remorse, it may still save valuable judicial resources and provide finality to the proceedings.” Mr. Jogiyat has relieved the Crown of the burden of prosecuting him on three separate indictments. The trials in these matters would have occupied a significant amount of court time. In a jurisdiction such as this facing a backlog of cases, this is a factor that must be accorded some weight.

(ii) Youth

[85] Mr. Jogiyat was 18 years old when he committed the offences he is being sentenced for. It is a well established principle of sentencing that rehabilitation and specific deterrence are the paramount considerations when sentencing a youthful offender and where a sentence of imprisonment is required, it should be as short as is necessary to achieve the relevant sentencing objectives: R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 (C.A.); R. v. Hoang, 2024 ONCA 361, at para. 78; R. v. Desir, 2021 ONCA 486, at paras. 41-42.

[86] In Desir, at para. 41, the Court held that in “very serious cases and cases involving violence,” general deterrence and denunciation must also be considered, although rehabilitation remains an important factor even in such cases. See also R. v. S.K., 2021 ONCA 619, at paras. 12-13; R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at paras. 33-34. In R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99, at paras. 41-42, the Court held that the objectives of denunciation and deterrence “gain prominence” for “serious crimes involving significant personal violence,” although all sentencing objectives, including rehabilitation, remain important. In R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797, at para. 5, the Court stated, “while individual deterrence and rehabilitation are the primary objectives in sentencing a first offender, the importance and weight of other factors increase with the seriousness of the crime.” The Court arguably went somewhat further in R. v. Jiwa, 2012 ONCA 532, 295 O.A.C. 180, at paras. 41-43, where it held that denunciation and deterrence are in fact “paramount” in cases involving “very serious, violent crime,” even for youthful first offenders.

[87] The evidence of Dr. Goldstein shows that the principle of restraint is based on a sound evidentiary foundation. Young people whose emotional development is ongoing lack the inhibitions and elements of self-control that fully mature individuals possess. This was recognized in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, at para. 41, where the Court noted that “young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment” and that this “entitles them to a presumption of diminished moral blameworthiness or culpability.” The Court went on to hold that the presumption is in fact a principle of fundamental justice: D.B., at paras. 46-59.

[88] Counsel for Mr. Jogiyat submit that although D.B. was decided in the context of the YCJA, Dr. Goldstein’s evidence shows that the presumption of diminished responsibility ought not apply only to persons under the age of 18 but to “emerging adults” as well. Of course, it would have been open to Parliament not to restrict the operation of the YCJA to those under the age of 18. It chose not to, and it not open to this court to revisit that decision. That said, I see nothing inconsistent between the principles in D.B. and the conclusion in Priest and other cases that rehabilitation ought to be given primacy in cases involving youthful first offenders. As noted, the extent to which rehabilitation is given primacy decreases as the seriousness of the offence increases, but this is not inconsistent with the principle in D.B. The presumption described in D.B. is rebuttable: D.B., at para. 45. The authorities outlined earlier merely make clear that the seriousness or violent nature of the offence can serve to rebut the presumption.

[89] However, as was made clear in Desir and the other cases cited earlier, even where deterrence and denunciation gain prominence, rehabilitation remains an important objective in cases involving youthful offenders who are not being sentenced as youths. The Supreme Court of Canada recently confirmed this in R. v. Bertrand Marchand, 2023 SCC 26, 487 D.L.R. (4th) 201, at para. 132, where it stated, “Even though an 18-year-old offender falls outside the scope of the youth criminal justice system, his lack of maturity remains an important consideration.” In my view, what this means in the context of this case is that while the sentence I impose must achieve, to some degree, the objectives of denunciation and deterrence, it cannot do so at the expense of the objective of rehabilitation. While rehabilitation may not be paramount, it must remain a prominent factor.

(iii) Social Context

(a) Systemic Racism

[90] Mr. Jogiyat is a South Asian Muslim who grew up in circumstances of poverty and disadvantage. As noted, an EPSR was prepared and the court also heard the testimony of Dr. Murdocca.

[91] The Crown has pointed out a number of weaknesses in Dr. Murdocca’s evidence and that it is far less detailed and complete than the expert evidence in Morris. Much of her evidence related to racialized people in general, rather than South Asians specifically. The Crown also points out that many of the effects that systemic racism has on Black Canadians simply does not apply to South Asian Canadians. The evidence in this case suggests that South Asians are not overrepresented in the criminal justice system, that they do not report being stopped by the police more often than other groups, and that their educational outcomes tend to be better than average. However, the Crown accepts that systemic racism towards South Asians exists in Canada.

[92] In my view, it is unhelpful to attempt to compare the extent to which different racialized groups suffer from the effects of systemic racism. The issue is to what extent, if any, systemic racism is relevant to the sentencing process. In order to determine this, the court must consider the following questions:

(1) is the defendant a member of a racialized group that experiences systemic racism?

(2) if so, is there “some connection between the overt and systemic racism … and the circumstances or events that are said to explain or mitigate the criminal conduct in issue”? (Morris, at para. 97);

(3) whether or not systemic racism mitigates the defendant’s moral culpability, does the social context evidence provide insight with respect to the need to deter him from future conduct or his rehabilitative prospects? (Morris, at para. 102).

[93] With respect to the first question, the Crown accepts that there is racism against South Asians, but does not appear to accept that it has affected Mr. Jogiyat in any way that is relevant to these sentencing proceedings because the evidence suggests that the police do not target South Asians, nor are South Asians overrepresented in the criminal justice system. In my view, it is inappropriate to attempt to artificially separate evidence of systemic racism from other systemic factors.

(b) Other Systemic Factors

[94] Mr. Jogiyat grew up in a socio-economically depressed neighbourhood the population of which is mostly racialized, as is the case for many such communities in Toronto. His parents are immigrants from India, a country with a long history of colonization. They have little education, do not speak English well, and have been limited in their ability to provide for their children. Mr. Jogiyat’s experiences in the educational system have not been positive and he did not finish high school, which in turn limited his opportunities as an adult.

[95] Mr. Jogiyat’s circumstances are the result of a number of factors, including his socio-economic status, his parents’ educational backgrounds, his cognitive challenges and many other things. To the extent that it is necessary to do so, I take judicial notice of the fact that Mr. Jogiyat’s membership in a racialized group is one such factor. However, it is neither possible nor helpful to attempt to tease out those aspects of his situation that are the result of systemic racism from those that result from other factors. The focus should not be on the causes of his circumstances, but rather on what effect those circumstances have on his moral culpability. For this reason, it is preferable to consider evidence of systemic racism as part of the broader social context in which the offender committed the offence rather than in isolation.

(c) Connection to the Offences

[96] Mr. Jogiyat has been convicted of a number of offences, and the extent to which social context evidence affects his moral culpability is not the same for each offence. The connection is clearest with respect to the drug trafficking conviction. Mr. Jogiyat was uneducated, poor and had few prospects. His father struggles to make a living selling fruit and vegetables, yet despite his efforts the family sometimes did not have enough to eat. In these circumstances, it is not difficult to understand why Mr. Jogiyat made the decision to sell drugs, which would allow him to make far more money than he could ever make through legitimate means. This does not excuse his conduct, but it mitigates his degree of responsibility: R. v. Husbands, 2019 ONSC 6824, 451 C.R.R. (2d) 117, at para. 83 , aff’d 2024 ONCA 155; R. v. L.C., 2022 ONCA 863, 421 C.C.C. (3d) 227, at para. 37; R. v. Donison, 2022 ONSC 741, at paras. 37-40.

[97] There is also a connection between the social context evidence and the attempted murder and firearms offences. The connection is similar to that which was described by Winteringham J. (as she then was) in Handule, at para. 190:

I accept Mr. McMurray’s submission that “it doesn't take a great deal of imagination to guess how exposure [to gun violence; being shot at] would impact on the psyche of a young person.” When considered comprehensively, including the prevalence of guns in the community where Mr. Handule grew up, his exposure to violence, the violent death of his younger brother, and the impact of systemic racism more generally, I am satisfied that there is evidence of a nexus between the context of social disadvantage related to historical racism, his personal circumstances, and his involvement in this type of offence.

[98] As Martin Luther King Jr. famously once said, “violence begets violence.”[^7] Mr. Jogiyat grew up in an area where violence was common. He has twice been the victim of a shooting. His cousin, with whom he was close, was murdered, an event which appears to have had a significant impact on him. In these circumstances, it is not surprising that Mr. Jogiyat resorted to violence in relation to people he believed were connected to his cousin’s murder. This is, of course, not an excuse for his conduct, nor does it in any way diminish the gravity of the offences. It puts Mr. Jogiyat’s conduct into context, and therefore has some limited mitigating effect with respect to his moral culpability.

[99] As noted earlier, the social context evidence may also be relevant to Mr. Jogiyat’s prospects for rehabilitation, which is considered separately later in these reasons.

(iv) Cognitive Impairments and Mental Condition

(a) The Required Connection

[100] Mr. Jogiyat is cognitively impaired and suffers from PTSD and opioid use disorder. As with evidence of systemic racism, there must be some connection between the defendant’s mental condition and the commission of the offences. There is some authority suggesting that there must be a direct causal link between the condition and the commission of the offences: R. v. Prioriello, 2012 ONCA 63, 29 M.V.R. (6^th) 50, at para. 11; R. v. Megill, 2021 ONCA 253, 405 C.C.C. (3d) 477, at para. 171. However, other authorities suggest that it is sufficient if the condition at least “contributed” or “played a role” in the commission of the offences: Bertrand Marchand, at para. 128; Husbands (C.A.), at paras. 80-86; Batisse, at para. 38; R. v. Fabbro, 2021 ONCA 494, at para. 26; R. v. Hart, 2015 ONCA 480, at para. 6; R. v. Ellis, 2013 ONCA 739, 3030 C.C.C. (3d) 228, at para. 117; R. v. Ghadgoni, 2020 ONCA 24, at paras. 45-46; R. v. Davies (2005), 2005 CanLII 63757 (ON CA), 199 C.C.C. (3d) 389 (Ont. C.A.), at paras. 3, 43. Any apparent inconsistency in these approaches was resolved in Husbands (C.A.), at para. 86:

The trial judge recognized that the appellant’s PTSD “may well have been a factor” in how the jury arrived at manslaughter verdicts, particularly given how it may have explained the speed at which things unfolded. The trial judge’s language – “may well have been a factor” - is consistent with Prioriello.

(b) The Connection in This Case

[101] In my view, Mr. Jogiyat’s mental condition “may well have been a factor” in his commission of the offences. His cognitive impairments affected his ability to complete high school which, like his socio-economic circumstances, left him in the position of having few opportunities. As well, the evidence establishes that his cognitive deficiencies and his PTSD affect his decision making. However, while his mental condition may have led him to make poor decisions, he clearly had the capability to plan and execute fairly complex criminal endeavours that included the use of tracking devices and the coordination of several different people acting under his direction.

[102] As with the social context evidence, Mr. Jogiyat’s cognitive impairments limited his employment prospects and provide some explanation for why he engaged in drug trafficking. However, they provide little in the way of mitigation of the other offences. Indeed, the degree of planning involved in the conspiracy to unlawfully confine and the robbery that culminated in the attempted murder are examples of Mr. Jogiyat overcoming his cognitive challenges.

(v) Conditions of Presentence Custody

(a) The Toronto East Detention Centre

[103] Mr. Jogiyat was subjected to a full or partial lockdown for approximately one out of every four days he spent in presentence custody. The majority of these was due to staff shortages. Although he was supposed to be given access to fresh air every day, this only occurred less than 25% of the time, which is even lower than the institutional average of 32%. He was triple-bunked about 40% of the time.

[104] Mr. Jogiyat’s circumstances are not unique. The conditions at the TEDC have been the subject of repeated judicial criticism over the course of several years. Over seven years ago, Forestell J. said the following about the conditions at the TEDC in R. v. Inniss, 2017 ONSC 2779, at para. 38:

I note that the United Nations Standard Minimum Rules for the Treatment of Prisoners[^8] provides that every prisoner should have at least one hour of suitable exercise in the open air daily. Mr. Inniss was denied access to fresh air for over one-third of the time he was in custody (159 days at the Toronto East Detention Centre and 214 days at the Toronto South Detention Centre based on the number of full day lockdowns.) It is shocking that detention centres in Toronto in 2017 are consistently failing to meet minimum standards established by the United Nations in the 1950's.

See also R. v. Kerr, 2024 ONSC 1514, at paras. 88-90; R. v. Adam, 2024 ONSC 2180, at paras.18-19; R. v. Zaban, 2024 ONSC 2704, at paras. 23-29; R. v. Bananish, 2024 ONSC 1218, at para. 147; R. v. Shen, 2024 ONSC 1074, at para. 58; R. v. Owusu, 2024 ONSC 671, at para.18; R. v. Dequilla, 2024 ONCJ 227, at paras. 102-103; R. v. Hamilton, 2024 ONSC 2167, at para. 60; R. v. Dolman-Kencher, 2023 ONSC 2752, at paras.58, 84-85; R. v. Pathmanathan, 2023 ONCJ 142, at paras.132-133; R. v. Mohamed, 2023 ONSC 6294, at paras. 44-45; R. v. Codrington, 2023 ONSC 6352, at para. 36; R. v. Gordon, 2023 ONSC 1036, at para. 40; R. v. Smith, 2022 ONSC 3800, at para. 39; R. v. Tago, 2022 ONSC 1253, at para. 31; R. v. Abdullahi, 2022 ONSC 543, at para. 61; R. v. Baugh, 2021 ONSC 8408, at paras.15-18; R. v. Steckley, 2020 ONSC 3410, at para. 39; R. v. Douale, 2018 ONSC 3658, at paras. 46-53; R. v. Hudson, 2019 ONCJ 608, at para. 43.

[105] In R. v. Rajmoolie, 2020 ONCA 791, 155 O.R. (3d) 64, at paras. 21, 45, Lauwers J.A., dissenting, referred to the frequent lockdowns at the TEDC as “deeply worrisome” and the lack of access to fresh air as “inhumane to a marked degree.”[^9]

(b) Custodial Conditions as a Mitigating Factor

[106] It is now well accepted that the existence of unduly harsh conditions in presentence custody is a relevant factor on sentencing. Reducing a sentence on this basis is often referred to as “Duncan” credit after the decision in R. v. Duncan, 2016 ONCA 754. However, in R. v. Marshall, 2021 ONCA 344, at para. 52, the court explained that this is not really a “credit,” but rather a mitigating factor to be considered together with other aggravating and mitigating factors:

The “Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit [R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575] will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

Thus, a “Duncan” credit is essentially treated like any other collateral consequence of the commission of the offence. It is relevant to the offender’s personal circumstances and must be taken into account to ensure proportionality, but cannot be used to reduce a sentence to the point that it becomes disproportionate: R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at paras. 48, 56.

[107] However, unlike other collateral consequences which are fact-specific, the existence of unduly harsh conditions of presentence custody is a systemic problem that has been ongoing for several years. Courts have condemned these conditions as being unacceptable on countless occasions. The government’s response to these criticisms has been to do nothing. To ignore the state’s refusal to heed the court’s admonitions risks bringing the administration of justice into disrepute. As a result, in addition to ensuring proportionality, granting credit for time spent in harsh conditions also serves to communicate the court’s disapprobation of the state’s conduct. Failing to maintain basic standards of treatment of presumptively innocent prisoners is wholly unacceptable, as is ignoring repeated judicial expressions of concern: R. v. Bernard, 2021 ONSC 5817, at paras. 26-32; R. Truong, 2023 ONSC 7518, at para. 54; R. v. Shaikh, 2024 ONSC 774, at para. 27; R. v. Perez, 2024 ONSC 2247, at paras. 45-47; R. v. Williams, 2022 ONSC 3080, at paras. 29-30; R. v. McEwan, 2023 ONSC 1608, at para. 99; R. v. Spicher, 2020 ONCJ 340, at paras. 66-67.

[108] Prior to Marshall, a “Duncan” credit was usually awarded based on the number of days spent subject to harsh conditions multiplied by what the court considered to be the appropriate ratio. This type of quantification is permissible as long as it does not skew the calculation of the ultimate sentence or lead to an overemphasis of the mitigating effect of the custodial conditions: Marshall, at para. 53. I do not intend to quantify the mitigating effect of the custodial conditions in this case. For the reasons I have explained, the effect is substantial.

E. Denunciation, Deterrence and Rehabilitation in This Case

(i) Denunciation and Deterrence

[109] As noted earlier, the challenge in this case is finding the appropriate balance between the various competing sentencing objectives. Doing so requires some evaluation of the extent to which those objectives are at play in this case. Given the seriousness of the offences, the importance of the objectives of general deterrence and denunciation are obvious. There can be no doubt that the sentence imposed in this case must serve to denounce in strong terms the serious offences that Mr. Jogiyat committed and, to the extent that it is possible to do so, deter others from engaging in similar conduct.

[110] The objectives of denunciation and deterrence are qualitatively different from the objectives of rehabilitation and specific deterrence. The former are not primarily concerned with the effect the sentence has on the offender. Denunciation is concerned with society being able to express its values through its condemnation of the offence: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 105, M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at p. 558. General deterrence is concerned with the effect the sentence will have on the conduct of others: R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at para. 2.

(ii) Rehabilitation

[111] Rehabilitation and specific deterrence, on the other hand, are concerned with the effect that the sentence has on the offender. However, although the focus may be on the effect of the sentence on the offender, it is important not to treat the sentencing objective of rehabilitation as something that benefits only him. Most offenders, even those who are sentenced to long terms of imprisonment, are eventually released back into the community. Absent rehabilitation, they are more likely to commit further offences. Recently, in R. v. Bissonnette, 2022 SCC 23, 469 D.L.R. (4^th) 387, at para. 48, the court, per Wagner C.J.C., stated:

... [T]he objective of rehabilitation is designed to reform offenders with a view to their reintegration into society so that they can become law-abiding citizens. This penological objective presupposes that offenders are capable of gaining control over their lives and improving themselves, which ultimately leads to a better protection of society. M. Manning and P. Sankoff note that rehabilitation “is probably the most economical in the long run and the most humanitarian objective of punishment” (Manning, Mewett & Sankoff: Criminal Law (5th ed. 2015), at para 1.155). Along the same lines, I would reiterate my comment in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, that “[r]ehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world” (para. 4).

[112] It follows from this that where any rehabilitative potential exists, courts should do what they can to ensure its actualization. As a result, I must assess, as best I can, Mr. Jogiyat’s prospects for rehabilitation.

[113] Dr. Vitopoulos’s report is generally optimistic with result to Mr. Jogiyat’s prospects. She wrote:

Salman is a 22-year-old young man who presented as polite, pleasant, and after some initial trust building with the examiners, forthcoming during this assessment. It should be noted that Salman was 18 years old, with a longstanding diagnosis of Mild Intellectual Disability, when involved in the offences currently before the court. He has been in adult custody … for approximately three years. Given his length of time in custody and the critical developmental period during which he has been in custody, as well as changes in both his maturity and environmental situation, Salman, his sister, as well as collateral sources describe a significant shift in his attitudes, behaviours, and ways of understanding both himself and the world.

Later in the report, Dr. Vitopoulos stated:

Currently, he is also a young man who evidences significant growth, facilitated by expected developmental changes in mature thinking, connection to education and religion, … and cessation of severe substance abuse. Salman certainly reports a desire for a pro-social path going forward, and it is hoped with the right therapeutic, educational/vocational, and community supports, he will be given the opportunity to contribute positively to the world around him.

[114] There are two reasons why I must use some caution in considering Dr. Vitopoulos’s conclusions. First, much of the information she relied on came from Mr. Jogiyat himself and he had an obvious motive for presenting himself in the best light possible. Indeed, some of what he told her was inconsistent with the facts he agreed to when entering his pleas. However, Dr. Vitopoulos was alive to this possibility and accordingly performed appropriate testing to address such concerns. According to her, the Personality Assessment Inventory Questionnaire (“PAI”) showed that “there is no evidence to suggest that the respondent was generally motivated to portray himself … as being relatively free of shortcomings or minor faults,” although it also revealed a tendency to deny the extent of some of his problems with drug use. As referred to earlier, Dr. Vitopoulos also administered the CVTRQ, the results of which suggest “that he is ready to commit to change and open to services.”

[115] The second reason for caution is Mr. Jogiyat’s conduct while in custody, in particular his more recent involvement in violent incidents. I recognize that a custodial setting is not a normal environment and a person’s behaviour while in custody is not necessarily an indicator of how he would behave out of custody. However, Mr. Jogiyat’s apparent inability to refrain from resorting to violence in certain situations is troubling.

[116] Overall, Mr. Jogiyat’s prospects for rehabilitation are generally positive. He committed very serious offences, but did so over a relatively short period of time when he was barely an adult. He had little in the way of supports growing up, and appears to have made positive strides since his arrest. There is cause for hope in this case.

F. The Principle of Totality

(i) Underlying Rationale

[117] It is well established that the totality principle, which is codified in s. 718.2(e) of the Criminal Code, is an important component of the overarching principle of proportionality. Simply put, the totality principle recognizes that a “a sentence may be greater than the sum of its parts”: R. v Andersen, 2020 BCCA 297, at para. 87. The importance of this principle was recently explained in R. v. M.V., 2023 ONCA 724, 169 O.R. (3d) 321, at para. 100:

This principle must be observed in appropriate cases to preserve the principle of proportionality and to reflect the fact that where sentences are combined, the functional value in imposing the sentences can generally be achieved without multiplying fit sentences: R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, at paras. 15-25. Simply put, an offender is not typically going to need to fully serve each component for the principles and goals of sentencing to be satisfied.

[118] The totality principle ensures proportionality, but also ensures that the sentencing objective of rehabilitation is not overshadowed by the competing objectives of denunciation and deterrence, as was explained in R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, at para. 18:

In short, a combined sentence must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offences in question or the overall culpability of the offender. The overall length of the custodial period imposed must still relate to and reflect the variety of sentencing goals, including denunciation, deterrence (specific and general), rehabilitation, the need to separate offenders from society where necessary, and the general imperative of promoting respect for the law and the maintenance of a just, peaceful and safe society: Criminal Code, s. 718. In this regard, the authorities recognize that where the ultimate effect of the combined sentences is to deprive the offender of any hope of release or rehabilitation, the functional value of these sentencing principles meets the point of diminishing returns: see R. v. C. (J.A.) (1995), 1995 CanLII 635 (ON CA), 26 O.R. (3d) 462 (C.A.). This point was reinforced by Lamer C.J. in [M.(C.A.) 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500], at para. 74.

See also R. v. England, 2024 ONCA 360, at para. 92.

(ii) Application to Previously Imposed Sentence

[119] After the sentencing hearing in this case, Mr. Jogiyat was found to be in contempt of court by K.L. Campbell J. of this court and sentenced to a term of imprisonment of three years: R. v. Jogiyat, 2023 ONSC 3143.

[120] The totality principle applies where an offender is being sentenced for several offences at the same time, and also where an offender is already serving a sentence for another offence at the time sentence is imposed: Johnson, at para. 19; R. v. Marshall, 2021 ONCA 28, 153 O.R. (3d) 623, at para. 9. Ordinarily, the principle of totality will have a reduced effect where part of the total sentence is a remanet because the offender “ought not to be seen to be reaping the benefits from his previous serious criminal misconduct”: Johnson, at paras. 22-23; Marshall, at para. 9; R. v. Gorham (1987), 22 O.A.C. (C.A.), at para. 2. However, there are three reasons why no such reduced effect is appropriate in this case.

[121] First, unlike in Johnson and the other cases cited, Mr. Jogiyat was not serving a sentence at the time he committed the offences he is being sentenced for and was not “unlawfully at large or …. at liberty on mandatory supervision”: Gorham, at para. 2.

[122] Second, Mr. Jogiyat had not yet committed the contempt of court offence at the time he committed the offences I am sentencing him on, so those offences are not examples of “continuing criminality”: Marshall, at para. 9.

[123] Third, because Mr. Jogiyat had not yet been sentenced for these offences, Campbell J. was unable to apply the principle of totality when sentencing him for contempt. However, he was aware of the convictions for these offences and took them into account when determining the contempt sentence: Jogiyat, at para. 18.

[124] While I am required to take the contempt sentence into account when applying the principle of totality, I must also be careful not to unduly undermine the sentence imposed by my colleague.

(iii) Applying the Totality Principle

[125] There are different ways of applying the totality principle: Friesen, at para. 157. The court can determine a fit sentence for each offence and then consider whether the overall sentence is excessive and, if it is, adjust it by reducing some of the sentences or making them concurrent: R. v. Hutchings, 2012 NLCA 2, 316 Nfld. & P.E.I.R. 211, at para. 84. Alternatively, the court can first determine the overall fit sentence, and then impose individual consecutive or concurrent sentences that add up to that total: R. v. Ahmed, 2017 ONCA 76; 136 O.R. (3d) 76, at paras. 84-85.

[126] While neither approach is incorrect, the Supreme Court of Canada has recently suggested that the former is the preferred method: Bertrand Marchand, at para. 91; R. v. C.B., 2024 ONCA 160, at para. 43. One advantage to this method is that it is able to give proper effect to the principle of denunciation by setting out what the sentence for each offence should be prior to any totality adjustment, which allows the court to fulfill the communicative function that the objective of denunciation is intended to serve. It can also serve the objective of general deterrence by making clear what a person considering committing one of the individual offences can expect to receive by way of sentence. This is the approach I will apply in this case.

G. Appropriate Sentences in This Case

(i) Prior to Totality Adjustment

(a) Attempted Murder

[127] As noted earlier, the appropriate range for attempted murder in this case is 10 to 16 years. After considering the aggravating and mitigating factors outlined earlier in these reasons, I am of the view that this case falls somewhere near the middle of that range. The appropriate sentence, prior to considering the totality principle, is 13 years.

(b) Conspiracy to Forcibly Confine

[128] As outlined earlier, Mr. Jogiyat’s co-accused, Mr. Sebape, received a one-year sentence for his role in this offence. Mr. Jogiyat played a somewhat greater role in that he instigated the conspiracy. In my view, the appropriate sentence is 18 months.

(c) Firearm Possession

[129] Mr. Jogiyat carried a firearm on more than one occasion and clearly possessed it for the purpose of engaging in serious criminal activity. This is a significant aggravating factor, although it is somewhat tempered by the mitigating factors in this case. While a sentence towards the higher end of the range may be justified in this case, the Crown seeks a sentence of three years prior to any totality adjustment, which is reasonable in my view. The violation of the prohibition order warrants a further year.

(d) Drug Trafficking

[130] The drug trafficking in this case occurred over a considerable period of time and involved numerous transactions. However, Mr. Jogiyat initially began trafficking to feed his own drug addiction and then to obtain money for his family, although I suspect the profit he ended up receiving far exceeded what he required for those purposes. In my view, the appropriate sentence in this case is 18 months.

(ii) The Appropriateness of the Total Sentence

[131] If all of the sentences are served consecutively, the total sentence would be 20 years. When added to the three-year contempt sentence, the total would be 23 years. In my view, a careful consideration of the relevant sentencing objectives leads to the conclusion that a sentence of that length is not required in this case.

[132] First, a sentence in excess of two decades, which is approximately the length of time Mr. Jogiyat has been alive, would completely crush any prospect of his rehabilitation. While the relative importance of the objective of rehabilitation may be the subject of some debate given the seriousness of the offences, it cannot be completely disregarded. But that would be the effect of a sentence of this length.

[133] Second, while the principle of general deterrence is important in this case, a sentence of 20 years is not necessary to give effect to it. General deterrence is based on the premise that the sentence imposed on an offender will discourage people who may otherwise consider committing a similar offence. While it may be supposed as a matter of common sense that there is a correlation between the deterrent effect of a sentence and its length, there will be a point at which this is no longer the case. A person who is undeterred by the prospect of a 12 or 15-year sentence is not likely to be deterred by a 20-year sentence. Put another way, the law of diminishing returns applies to the objective of general deterrence.

[134] As noted earlier, denunciation has a communicative function in that the sentence expresses society’s condemnation of the offence that was committed: Bissonnette, at para. 46. Like general deterrence, the objective of denunciation is subject to the law of diminishing returns. There is a point at which a lengthy sentence makes abundantly clear the extent to which society condemns the offender’s conduct and further increases in the sentence do not meaningfully further the objective of denunciation.

[135] This conclusion finds some support in Bissonnette, which involved a constitutional challenge to a Criminal Code amendment which allowed courts to impose consecutive periods of parole ineligibility on those convicted of multiple first degree murders. The Court found the amendment to be unconstitutional, primarily on the basis that sentences that do not allow any realistic possibility of parole are incompatible with human dignity: Bissonnette, at para. 73. That concern obviously does not arise in this case, as Mr. Jogiyat would eventually be eligible for parole even if he receives the sentence sought by the Crown.

[136] However, the Court in Bissonnette also made the following observation about the objectives of denunciation and deterrence (at para. 94):

Furthermore, the objectives of denunciation and deterrence are not better served by the imposition of excessive sentences. Beyond a certain threshold, these objectives lose all of their functional value, especially when the sentence far exceeds human life expectancy. [Emphasis added].

The addition of the expression “especially when the sentence far exceeds human life expectancy” suggests that the principle being described is not limited to such situations.

(iii) Adjusting for Totality

[137] Having concluded that the principle of totality requires a reduction in the overall sentence, I must now determine how that is to be achieved. I will first consider whether any of the sentences should run concurrently: Bertrand Marchand, at para. 99. Decisions as to whether sentences should be consecutive or concurrent are discretionary: R. v. Delchev, 2014 ONCA 448, 323 O.A.C. 19, at para. 34. Given that one of the aggravating factors in relation to the attempted murder is the use of a firearm, the sentence for the firearm possession offences will be made concurrent to the attempted murder sentence. While the sentence for violating the prohibition order should ordinarily be made consecutive, in this case it will run concurrently to give effect to the totality principle: R. v. Baugh, 2021 ONSC 8408, at paras. 50-53.

[138] In addition to making the firearms offences concurrent, I will also reduce the attempted murder sentence by one year and each of the sentences for the conspiracy to unlawfully confine and the drug trafficking counts by six months. In my view, this further adjustment strikes the appropriate balance between giving effect to the relevant sentencing objectives and respecting the sentence imposed by my colleague for an entirely separate offence while at the same time ensuring that Mr. Jogiyat’s hopes of rehabilitation are not crushed: R. v. Elenezi, 2021 ONCA 834, at paras. 9-10.

[139] In the result, the sentence on each count is within the range but the total sentence is 14 years. In my view, a sentence of this length gives effect to the objectives of denunciation and deterrence while respecting the principles of restraint and totality.

(iv) Credit for Presentence Custody

[140] Mr. Jogiyat has been in custody since August 24, 2023, a total of 1394 days. In accordance with R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, he is entitled to a credit of one and a half days for each day, for a total of 2091 days, or approximately 68 ¾ months.[^10] I am prepared to round this up to 69 months, for a total of 5.75 years, or five years and nine months.

III. DISPOSITION

A. Sentence on Each Count

[141] The sentences imposed are as follows:

• Attempted murder (Count 1 on Indictment #1): 12 years;
• Conspiracy to forcibly confine (Count 1 on Indictment #2): 1 year, consecutive;
• Unauthorized possession of loaded prohibited firearm (Count 5 on Indictment #2): 3 years, concurrent;
• Possession of a firearm while prohibited (Count 7 on Indictment #2): 1 year, concurrent;
• Trafficking in a controlled substance (Count 1 on Indictment #3): 1 year, consecutive.

The total sentence is 14 years (168 months), to be served consecutively to any sentence already being served. Mr. Jogiyat is entitled to a credit of 69 months, leaving 99 months, or eight years and three months, left to be served.

B. Ancillary Orders

[142] Pursuant to s. 109(1) of the Criminal Code, there will be an order that Mr. Jogiyat be prohibited from possessing (a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance, for a period of 10 years and (b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

[143] Pursuant to s. 487.051(2) of the Criminal Code, Mr. Jogiyat is ordered to provide a sample of his DNA for inclusion in the national databank.

[144] Pursuant to s. 491(1) of the Criminal Code, the firearm seized at the time of Mr. Jogiyat’s arrest is forfeited to His Majesty and shall be disposed of as the Attorney General directs.

[145] Finally, I would like to thank all counsel for the hard work they have done and the professional manner in which they conducted this difficult sentencing hearing.

Justice P.A. Schreck

Released: June 18, 2024

[^1]: In accordance with the procedure described in R. v. Faulkner, 2018 ONCA 174, 407 C.R.R. (2d) 59, at paras. 92, 104, Mr. Jogiyat pleaded not guilty but agreed to the facts alleged by the Crown and a conviction was entered on that basis.

[^2]: Mr. Jogiyat had earlier entered “Faulkner pleas” to the charges on Indictments #2 and #3 on January 17, 2023 before Forestell J. Counsel for both parties agreed that in order to address totality concerns, it was preferable for the same judge to conduct the sentencing on all the charges. As a result, Forestell J. struck the pleas and they were re-entered before me.

[^3]: Mr. Tahir has since been convicted of murder in relation to Maaz Jogiyat’s death.

[^4]: In the VIS, Ms. Komitova stated, “I request the judge to keep the suspects behind bars for as long as possible.” This statement should not have been included in the VIS and I have not considered it: R. v. Jackson (2002), 2002 CanLII 41524 (ON CA), 58 O.R. (3d) 593 (C.A.), at para. 56; R. v. Beals, 2023 ONSC 555, at para. 75-82; R. v. Spalding, 2023 ONSC 2136, at para. 52. Ms. Komitova also mentions being repeatedly struck with a hammer by someone during the incident. I have heard no evidence about any such assault with a weapon and have accordingly not considered this part of the VIS.

[^6]: The other single-digit sentences discussed in Tan, R. v. Campbell (2003), 2003 CanLII 48403 (ON CA), 170 O.A.C. 282 (C.A.) and R. v. Boucher (2004), 2004 CanLII 17719 (ON CA), 186 C.C.C. (3d) 479 (Ont. C.A.), were attempted murders in the domestic context and the sentences imposed in those case are likely no longer appropriate in light of the more recent decision in R. v. Cunningham, 2023 ONCA 36, 166 O.R. (3d) 147, at paras. 45-48).

[^7]: Martin Luther King Jr., Stride Toward Freedom: The Montgomery Story (New York, Harper & Row, 1958), at p. 87

[^8]: The Standard Minimum Rules for the Treatment of Prisoners was first adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1955. The Rules were revised and expanded in 2015 and are now known as the “Nelson Mandela Rules”: A. Gilmour, “The Nelson Mandela Rules: Protecting the Rights of Persons Deprived of Liberty” (https://www.un.org/en/un-chronicle/nelson-mandela-rules-protecting-rights-persons-deprived-liberty).

[^9]: Writing for the majority in Rajmoolie, Benotto J.A. did not comment on the conditions at the TEDC and deferred to the sentencing judge’s exercise of discretion with respect to the granting of credit for harsh presentence conditions. She declined to admit fresh evidence on the issue.

[^10]: As is now commonly done in the s. 11(b) jurisprudence, I have converted days to months by treating each month as consisting of 30.417 days in accordance with R. v. Shaikh, 2019 ONCA 895, 148 O.R. (3d) 369, at fn.1.