Court File and Parties

COURT FILE NO.: CR-21-10000470-01SR DATE: 20240719 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – CHRISTIAN COLLINS Defendant

Counsel: Zachary Kerbel, Counsel for the Crown Kim Schofield, Counsel for the Defence

HEARD: May 21, June 4 and 20 and July 4, 2024

M.A. CODE J.

Reasons for judgement on a conditional sentence breach hearing

A. Overview

[1] Christian Collins (hereinafter, Collins) pleaded guilty to a number of serious criminal offences on May 8, 2023. He was sentenced on October 13 and 24, 2023. The sentence took the form of a relatively punitive Conditional Sentence Order (CSO), namely, a maximum two years less a day term of “house arrest”, with few exceptions to the “house arrest” condition. See R. v. Collins, 2023 ONSC 5768.

[2] In the present proceedings, the Crown alleges that Collins breached the terms of the CSO within days of entering into it. More specifically, it is alleged that on October 26, 2023, a mere two days after I finalized terms of the CSO on October 24, 2023, he began taking preparatory steps that led to a serious armed robbery on October 30, 2023. There is no issue that an armed robbery took place in downtown Toronto on that day, as it is captured on surveillance video. It resulted in the loss of millions of dollars, in both cash and luxury watches. The disputed issue is the identity of the perpetrators.

[3] The police investigation of the armed robbery took some time. While the investigation was ongoing, Collins twice appeared before me in order to seek certain variations to the CSO. He and the Sentence Supervisor also filed reports with me, pursuant to the terms of the CSO, advising me of Collins’ progress in carrying out various terms of the CSO. These two appearances in Court were on December 7, 2023 and April 23, 2024. The fact that Collins was the subject of a police investigation for armed robbery was obviously not disclosed to the Court or to Collins.

[4] On May 9, 2024, about six months after the robbery, the police obtained a search warrant for Collins’ residence. The search warrant was executed that same day and Collins was arrested and charged with armed robbery. Also on May 9, 2024, these proceedings were commenced by Notice alleging breach of a mandatory statutory term of the CSO, namely, “keep the peace and be of good behaviour”. Collins has been in custody since his arrest on May 9, 2024. He has not applied for bail on the armed robbery charge.

[5] The statutory code of procedure governing alleged breaches of a CSO is found in s. 742.6 of the Criminal Code. It requires that the hearing of the alleged breach “shall be commenced within 30 days”. Collins appeared briefly before me on May 21, 2024. The Notice of the alleged breach and a preliminary report from the Sentence Supervisor were filed, in order to formally commence the hearing. The Crown requested a two week adjournment in order to prepare a brief of supporting evidence and to make disclosure to the defence. By the next appearance on June 4, 2024, disclosure was substantially complete and defence counsel had been retained. I scheduled two dates, June 20 and July 4, 2024, when counsel and the Court were available for the hearing. On these dates, the Crown filed a substantial brief of evidence, the parties negotiated an Agreed Statement of Fact, and the hearing was completed expeditiously, as contemplated by the s. 742.6 legislative provisions.

[6] I heard final argument on July 4, 2024 and reserved judgement. These are my Reasons for Judgement concerning whether the Crown has proved, on a balance of probabilities, that Collins committed the alleged breach and if so, what remedy is appropriate.

B. Facts

(i) Introduction

[7] There are two separate sets of facts that are relevant to the present CSO breach proceedings. First, there are facts relating to the October 30, 2023 robbery. The Crown seeks to prove, to the normal civil standard of proof required by s. 742.6(9), that Collins was involved in the robbery, either as one of the two co-principals who actually carried it out or as an aider or abettor who assisted the principals. This body of evidence is entirely circumstantial. It was tendered at the hearing in documentary form, that is, as signed witness statements appended to reports from the Sentence Supervisor (as permitted by s. 742.6(4)). The defence did not seek the attendance of any of these witnesses for cross-examination (as permitted by s. 742.6(8)). In addition, real and demonstrative evidence was appended to some of the witness statements, including important video surveillance evidence from several locations and photographs taken during the search of Collins’ residence.

[8] The second set of relevant facts relates to the Court’s remedial discretion. If the breach is proved, s. 742.6(9) sets out four remedial responses that can be taken: take no action; vary the terms of the CSO; suspend the CSO and impose a period of jail followed by resumption of the CSO, with or without changes to its terms; and terminate the CSO and direct that the remainder of the sentence be served in jail. The parties sensibly addressed both the breach phase of the hearing and the remedial phase of the hearing by tendering evidence and making submissions on July 4, 2024 in relation to both issues. Accordingly, there are some facts that are relevant only to remedial issues. In particular, the Crown relies on facts that emerge from my original sentencing decision in October 2023. The defence, on the other hand, relies on Collins’ ongoing compliance with other terms of the CSO during the period of the police investigation, and on certain present circumstances related to Collins’ young daughter and his common law wife.

[9] I will summarize these two different sets of relevant facts separately, in the next two subsections.

(ii) Facts relating to the robbery

[10] In chronological order, the facts relating to the robbery begin on October 24, 2023 when Collins entered into the CSO that I ordered. Its terms were finalized here at the Court House at an in person hearing which was attended by counsel and Collins. Cell tower analysis of a phone that was seized during the search of Collins’ residence (phone number 647-806-0154) shows that the phone was utilizing cell towers close to the Court House on October 24, 2023. Collins told Det. Cst. Chu, at the time of the subsequent search of his residence, that this was his phone number.

[11] Two days after entering into the CSO, on October 26, 2023, Collins met with a probation officer at the Probation and Parole Office on Kingston Road in Pickering. The meeting was with Tamika Charles, and it was at 1:00 p.m., according to her recollection. She believed Collins was wearing a grey tracksuit. Video surveillance of the parking area immediately outside the Probation and Parole office shows a grey Ford Bronco arriving at 1:13 p.m. The driver, who was wearing a grey tracksuit with the hood up, exited the Ford Bronco and entered the office. At 2:21 p.m., the Ford Bronco drove away from the office parking area. Analysis of Collins’ 0154 phone that day shows numerous phone calls to and from a phone that is registered to Tamika Charles at the Ministry of the Solicitor General.

[12] The distance from the Probation and Parole office on Kingston Road in Pickering to the Home Depot store located in South Etobicoke on North Queen Street is 52.8 km. The most direct route between these two locations is to travel west on Highway 401 and then south on Highway 427 for 50.3 kms of the 52.8 km total distance. In other words, if driving at about 100 km per hour on these main highways, the distance could be travelled in about 30 minutes. Cell tower analysis of Collins’ 0154 phone shows that 15 minutes after he apparently left the Pickering office, the phone was near Highway 401 and just east of Yonge Street, at 2:36 p.m. when it made an outgoing call. At 3:05 p.m., the phone received an incoming call from Tamika Charles’ Solicitor General phone. The Collins phone utilized a cell tower on Evans Avenue in south Etobicoke in order to receive this call. This cell tower is located about 780 metres from the Home Depot store on North Queen Street in south Etobicoke. The call took place about 45 minutes after the Ford Bronco left the Probation and Parole office in Pickering. The call lasted 41 seconds.

[13] Video surveillance at the Home Depot parking lot shows a grey Ford Bronco arriving and parking near the store. The Ford Bronco that arrived at the Home Depot store appears to be similar to the Ford Bronco that left the Probation and Parole office in Pickering. Video surveillance inside the store shows that a man wearing a grey tracksuit with the hood up exited the Ford Bronco, entered the store, and purchased two packages of “DeWalt heavy duty Walkie-Talkies”. This purchase was made at 3:10 p.m. on October 26, 2023, according to store records. In other words, the purchase was made five minutes after the above phone call between the Collins phone and the Tamika Charles phone. Video surveillance inside the store provides good images of both the man in the grey tracksuit and the DeWalt walkie-talkies that he purchased. The grey tracksuit top has black trim around the front zipper and front pockets, and it has a black Nike logo at the left chest area. The tracksuit pants have black draw strings at the front and a black Nike logo at the left pocket. The hood is up and the man is wearing a Covid mask but there is a reasonably good image of his eyes, his nose, and his light brown skin. The man is not wearing gloves and there are a number of reasonably good images of his left hand and wrist, showing a relatively distinctive tattoo. Police database photographs of Collins, both before the robbery and at the time of his arrest for the robbery, show a similar distinctive tattoo on his left hand and wrist. There are broad similarities, and no obvious dissimilarities, between the eyes, nose, and light brown skin colour of Collins and the man in the grey tracksuit, but there is nothing particularly distinctive in this comparison. The DeWalt walkie-talkies (two in each package) are mainly yellow with a black perimeter and with a short black antenna piece at the top left corner (presumably to send and receive radio signals between the units).

[14] The way in which the man in the grey tracksuit exited the Home Depot store, after purchasing the two packages containing two walkie-talkies in each package (a total of four walkie-talkies), is somewhat unusual. He did not return directly to the Ford Bronco. Instead, he was picked up and driven by someone else in a black BMW SUV. The BMW then drove to where the Ford Bronco was parked and came to a stop. The man in the grey tracksuit exited the front passenger seat of the BMW and walked to the Ford Bronco. He can be seen carrying at least one package of the walkie-talkies, after exiting the BMW, but it is unclear from the stills I saw whether he was still carrying both packages. No one else was with this man in the grey tracksuit while he was shopping inside the Home Depot store, but someone else clearly picked him up and briefly drove him through the Home Depot parking lot, after he had finished buying the walkie-talkies.

[15] The above events at the Probation and Parole office and at the Home Depot store all took place on October 26, 2023. The next day, October 27, 2023, there is video surveillance from the premises of “Distinctive Time”. This is the business premises where the robbery was to take place three days later, on October 30, 2023. It is located at 119 Spadina Avenue, which is a building on the east side of Spadina in downtown Toronto, between Richmond and Adelaide. “Distinctive Time” occupies a sixth floor unit in the building. No one was present in the unit on October 27, 2023, which was a Friday. The video surveillance images from that day show two suspects in the sixth floor hallway outside the “Distinctive Time” unit. At 12:13 p.m., one suspect exited the elevator wearing a black hoody, black and grey pants, and white shoes. Twenty-one minutes later, at 12:34 p.m., a second suspect wearing a FedEx hat, FedEx top, and black pants, while carrying a FedEx package, rang the doorbell to the “Distinctive Time” unit. He can apparently be seen holding a yellow walkie-talkie, according to Det. Cst. Park who viewed this surveillance video. The two suspects left when there was no answer at the “Distinctive Time” unit. Two stills from this October 27 video surveillance were filed with the Court, as part of the record, but the video recording itself was not played in court and I could not find it on the disc that was filed as an exhibit. Accordingly, I am only relying on the two stills.

[16] Three days later, on October 30, 2023 (which was a Monday), video surveillance shows that two suspects dressed almost identically to the two October 27 suspects, arrived in the same sixth floor hallway at 119 Spadina Avenue. The suspect wearing the FedEx hat and FedEx top can be seen wearing a black Covid mask. His beard and white skin are visible in the parts of his head, face, and neck that were not covered by the Covid mask. He was carrying a small brown cardboard box, and not the FedEx package that this suspect was previously carrying on October 27. This small brown cardboard box was to become important in the police investigation. The FedEx suspect, as I will call him, rang the doorbell to the “Distinctive Time” unit. When the door was answered, a second suspect in the same black hoody, black and grey pants, and white shoes that one of the October 27 suspects wore, emerged from the stairwell door in the hallway and entered the “Distinctive Time” unit, following behind the FedEx suspect. This second suspect also wore what looks like a black balaclava. He immediately tackled the employee who had come to the door, taking him to the ground, while the FedEx suspect went ahead into the office area located inside the unit. At this point the robbery took place. Two of the victims of the robbery provided statements, describing what happened. Video surveillance inside the “Distinctive Time” unit substantially captured all the relevant events from two different angles. The video recording of the robbery was played in court and I have also reviewed it on the disc that was filed as an exhibit.

[17] In summary, the FedEx suspect produced a black handgun and ordered the occupants to lie face down on the floor. The second suspect immediately tied the hands of two employees behind their backs, using duct tape that he apparently brought with him. Importantly, after the FedEx suspect produced the gun, he put the small brown cardboard box down on a table. That box had been used, as a prop or ruse in order to gain entry, by stating to the employee who had come to the door that it was a delivery. The “Distinctive Time” unit is essentially a single room, set up like an office with desks around the perimeter where the three occupants can be seen sitting and working at computers, presumably selling luxury watches online. There is open space in the middle of this office. It is not a store with customers. In one corner of the office there is a large safe where a significant amount of cash and many expensive watches were being stored. One of the three persons in the unit at the time of the robbery, was the owner. He opened the safe for the robbers and helped them find cardboard boxes, in order to carry out the numerous watches that were being stolen. The owner also stood around for a period of time, in the presence of the two robbers, before he was put face down on the floor and had his hands duct taped behind his back. As a result, he had a much better opportunity to observe the two robbers, unlike the two employees who were tackled to the ground (in one case) or told at gunpoint to lie on the floor face down (in the other case), as soon as the two robbers entered the unit.

[18] The FedEx suspect eventually went over to the table where he had left the small cardboard box that was initially used to gain entry to the premises. He picked it up and took it over to the area near the safe, put it on the floor, and removed a number of reusable blue and green shopping bags from the box. It appears that the original plan was to use these bags in order to carry out the stolen watches because the FedEx suspect used the blue bag in this way, filling it up with a large number of watches. However, it also appears that the large number of watches found in the safe and in the office area required a larger container, in order to carry them all out of the premises. The owner had helped the robbers find a relatively large brown cardboard box from under a desk and they used it to load a large number of watches. The green shopping bags were never used and were left on the floor. The small cardboard box that had contained the blue and green shopping bags was also left on the floor. This was to become a particularly helpful source of evidence in the ensuing police investigation.

[19] The two suspects loaded the watches into the large cardboard box (and into the blue shopping bag). The large cardboard box eventually became so full with numerous boxed watches that it was overflowing. The robbers tried to move this box towards the door, by putting it on a chair that had wheels, but the box spilled over and numerous watches fell onto the floor. The robbers eventually put most of these watches back into the large cardboard box and the FedEx suspect wheeled it out on the chair, into the sixth floor hallway and into the elevator. The second suspect now had the gun. He loaded more watches from the safe into a grey backpack that had been on a chair. He then left the unit wearing the grey backpack and carrying the gun.

[20] Importantly, the white skinned and bearded FedEx suspect wearing the black Covid mask, can be seen in the hallway using a walkie-talkie after leaving the unit. The walkie-talkie is yellow with a black perimeter and it has a short black antenna piece at the top left corner. The second suspect can also be seen at certain times, holding an object of some kind to his ear and speaking into it, but this object in his hand is not clearly visible. More importantly, a Home Depot receipt for purchase of the two sets of DeWalt walkie-talkies at 3:10 p.m. on October 26, 2023 at the Etobicoke store, was found in the small cardboard box left behind at the scene of the robbery. Also in this box was a black Nike balaclava and a medical mask. The mask and the balaclava were both sent to the Centre of Forensic Sciences for DNA testing.

[21] After the two robbers left the sixth floor premises with the stolen goods, the FedEx suspect returned with the chair on wheels that he had used in order to remove the large cardboard box full of stolen watches. The door to the “Distinctive Time” unit was now closed and locked. The FedEx suspect rang the doorbell and tried to gain entry, perhaps hoping to retrieve the small cardboard box that he had left behind or the blue shopping bag full of watches that had also been left behind. No one answered the door and the FedEx suspect got in the elevator and left.

[22] Collins’ 0154 phone was not active at the time of the robbery, in the sense that it was not accessing cell towers for calls or texts on October 30, 2023 between 12:22 p.m. and 3:09 p.m. The robbery took place between approximately 1:45 p.m. and 2:00 p.m. There were other periods of cell tower inactivity on this phone, so this one inactive period is not unique. The parties agree that the cell phone has other means of communicating over the internet, without using cell towers.

[23] The statement provided to the police by the owner of “Distinctive Time” described the two robbers as “the white guy” and “the black guy”. He stated that the watches were in boxes, together with the serial number and warranty card for each watch. He described the white FedEx suspect as “overweight … over 200 pounds” and “probably five ten, five eleven”, with a “fuzzy beard”. This description is consistent with the video images of the FedEx suspect. The other suspect was described by the owner as “dark, not like fully black … probably around Obama … Maybe a tiny bit lighter … his face was fairly smooth … Like he was younger … late twenties … a bit taller than the white guy. Maybe six one, six two … A slim build … 200ish.” Again, this description is generally consistent with the video images of the other suspect.

[24] The one employee who also provided a statement to the police was the one who answered the doorbell when the robbers arrived, thinking that it was a FedEx delivery person with a package. He was immediately tackled to the floor by the second suspect. While he was on the floor face down, he heard the two robbers asking the owner to open the safe and asking where the warranty cards were. He also heard one robber making a “call” and telling someone “to bring the car to the front”. This employee stated that the second suspect was “behind” the “FedEx guy” at the door, when the employee answered the doorbell, and it was this second suspect who “tied me up with duct tape”. This employee described the “FedEx guy” as “five seven, five eight, maybe a little bit taller … white skinned … a little chubby”. He described the other robber as “around the same height … around five eight … a little skinnier … black, light skinned. I didn’t look at him as much ’cause that’s when they tackled me.”

[25] When Collins was arrested for the robbery on May 9, 2024, one of the arresting officers spoke to him and obtained his age, height, and weight. He was 29 years old, six feet tall, and 198 pounds. During the search of his residence, the police seized his 0154 cell phone and a grey hooded tracksuit top with a black Nike logo at the left chest and black trim on the front zipper and side pockets (all similar to the top worn by the man at Home Depot on October 26, 2023). A Mercedes Benz car was parked in the garage of the residence. A surveillance officer had seen Collins driving the Mercedes on April 30, 2024. The car was registered in the name of Collins’ common law wife, Destiny Shaw. The trunk of the car was searched and the police seized a pair of white Nike Air Force One shoes, a black balaclava, and grey track pants with a black Nike logo at the left pocket and with black draw strings at the front. The shoes and balaclava appear to be generally similar to what the second robber was wearing on October 30, 2023 and the track pants are the same kind as what the man at Home Depot was wearing on October 26, 2023.

[26] The CFS technicians who carried out the testing of the balaclava found in the small cardboard box that was left behind at the scene of the robbery, took a swab from the “mouth/nose area” and then extracted one male STR profile that was suitable for comparison. After comparing this profile to Collins’ profile, the CFS biologist concluded that Collins “cannot be excluded as the source” of the male DNA on the balaclava. It is “greater than one trillion times more likely” if the profile “originates from Collins than if it originates from an unknown person unrelated to Collins”. The testing of the mask found in the same small box began by taking a swab from the “entire inside surface” and extracting a mixture of DNA that was suitable for comparison. This mixture was “from two people, including at least one male”. After comparing this profile to Collins’ profile, the CFS biologist concluded that Collins “cannot be excluded as a contributor” to the mixture. It is “greater than one trillion times more likely” if the contributors “originate from Collins and one unknown person than if they originate from two unknown persons unrelated to Collins”.

[27] The police Synopsis relating to the robbery states that $200,000 in Canadian cash and “approximately $5 million in high end watches” was removed from the safe. The owner of “Distinctive Time” provided a detailed inventory of the stolen watches. That inventory lists 155 mainly Rolex watches, together with their serial numbers and their cost in U.S. dollars. The amount of the loss was $6.7 million in Canadian dollars.

(iii) Facts relating to available s. 742.6(9) remedies

[28] The facts relied on by the Crown relating to the four remedial options available under s. 742.6(9), mainly emerge from the original October 2023 sentencing decision that led to the CSO. In addition, the Crown relies heavily on the serious nature of the alleged breach, namely an armed robbery (already summarized above) that resulted in the theft of millions of dollars worth of cash and inventory.

[29] I need not repeat the facts relating to the October 2023 sentencing decision in this case in any detail. They are fully set out in the written Reasons for Sentence. See R. v. Collins, 2023 ONSC 5768. In brief summary, Collins pleaded guilty to five serious offences, including trafficking cocaine in March and April 2020, possessing a loaded prohibited firearm in September 2020, and possessing cocaine for the purpose of trafficking in September 2020. The two separate cocaine trafficking offences were aggravated by the fact that Collins was a third time recidivist who had previously been convicted of this offence in 2017 and 2019. In addition, the March and April 2020 trafficking offence had a particularly predatory character as Collins was travelling to Manitoulin Island and selling cocaine to members of a First Nations Reserve, at a time when they had just received social assistance cheques. Finally, these offences were committed in violation of two probation Orders and two s. 109 and s. 110 weapons prohibition Orders. There is no doubt Collins would have received a substantial penitentiary sentence but for a number of significant mitigating circumstances. These mitigating circumstances, in summary, were as follows: he pleaded guilty; his Charter rights had been twice violated during the police investigation; he grew up in difficult circumstances, losing his mother and his best friend in two separate murders and being surrounded by crime at a time when he was young; and, most importantly, he had been on bail for three years pending trial and I was satisfied by the evidence called at the sentencing hearing that he was “completely reformed”. In this regard, I stated the following: “I do not recall another case where I have seen such a complete and successful reformation prior to sentencing. That reformation has many facets: a successful career [as a musician]; a strong family life [with Ms. Shaw and his newborn daughter]; community service that may help other young people from leading lives of crime; and successful counselling related to Collins’ own mental health issues.”

[30] The defence relies on the two reports that I received from Collins and his Sentence Supervisor dated January 30 and April 23, 2024, at a time when the police investigation was still ongoing. The reports indicated that Collins’ career as a musician was progressing. He had released his debut album with Warner Music and he had booked various concert appearances. He was continuing to receive counselling from his therapist, Carole Eastman. Finally, he had completed significant hours of crime prevention community service under the supervision of Carl Blackman’s “Lead to Change” program.

[31] The defence also relies on a current letter from Destiny Shaw, who is Collins’ long time common law wife and the mother of their three year old daughter Nova. Their daughter was diagnosed with autism “in the moderate range” in December 2023. She is on a waiting list to receive recommended services for autism, according to her doctor’s letter dated December 13, 2023. Ms. Shaw’s letter states: “The absence of Mr. Collins in Nova’s life due to his recent incarceration pertaining to his alleged breach has had profound consequences for a non-verbal three year old battling with autism … As Nova struggles with her speech, her ability to communicate her emotions continues to dwindle, and is exacerbated by the absence of her father … Increases in stress, anxiety, and confusion follow with this disruption in Nova’s life through the absence of her father … Nova requires both her parents present in her life to act as a pillar of support and guide her through this extremely difficult and confusing time in her life …”

C. Analysis

(i) The standard of proof at s. 742.6(9) hearings

[32] In relation to the standard of proof at a CSO breach hearing, the Court of Appeal has held that this proceeding is part of “the sentencing process” and that s. 11 Charter rights have no application. In R. v. Casey (2000), 141 C.C.C. (3d) 506 at paras. 22-24 (Ont. C.A.), Osborne J.A. (as he then was), Abella and Moldaver JJ.A. concurring, stated:

Manifestly, such persons have already been convicted of an offence and they are not at risk of being convicted of a further offence on the breach hearing. Rather, if the alleged breach is established, the powers of the supervising judge are limited to those specified in s. 742.6(9) of the Code. In short, the judge can change some of the conditions of the conditional sentence order and the manner and location in which the offender serves the time remaining on the original conditional sentence. Significantly, the judge cannot impose a second sentence for the breach itself, or lengthen the original sentence.

It follows, in my view, that persons facing a breach application are not “charged with an offence.” Rather, the breach hearing is part of the sentencing process and as such, s. 11 of the Charter has no application.

Further support for this conclusion is found in s. 673 of the Code, where, in the context of indictable appeals, the word sentence is defined to include a disposition made under s. 742.4(3) and s. 742.6(9). That is to say the definition of sentence includes an order made consequent upon an offender’s breach of a conditional sentence order. Manifestly, this suggests that Parliament viewed an order made under s. 742.6(9) as a sentence.

[33] In a case like the present, where the alleged CSO breach is the commission of a further offence and, therefore, the accused has allegedly failed “to keep the peace and be of good behaviour”, the Court held that “the ordinary standard of proof required in civil cases” applies. In R. v. Filippelli (2002), 169 C.C.C. (3d) 217 at paras. 7-12 (Ont. C.A.), Armstrong J.A., O’Connor A.C.J.O. and Cronk J.A. concurring, stated:

The standard of proof applicable to a proceeding for a breach of condition is set out in s. 742.6(9) of the Criminal Code. To succeed in establishing a breach of a condition, the Crown must lead evidence that satisfies a judge on a balance of probabilities that such a breach has occurred.

The appellant argued that there are different degrees of probability depending upon the nature of the case.

The appellant argued that the gravity of the consequences of finding that the appellant breached his conditional sentence order required that a higher degree of probability was required. He did not attempt (perhaps wisely) to define with precision that higher degree of probability.

In my view, the standard of proof required by s. 742.6(9) of the Code does not attract more than the ordinary standard required in civil cases. It must be appreciated as was stated by Chief Justice Lamer in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 140 C.C.C. (3d) 449, at para. 29:

The conditional sentence is defined in the Code as a sentence of imprisonment. The heading of s. 742 reads "Conditional Sentence of Imprisonment". Furthermore, s. 742.1(a) requires the court to impose a sentence of imprisonment of less than two years before considering whether the sentence can be served in the community subject to the appropriate conditions. Parliament intended imprisonment, in the form of incarceration, to be more punitive than probation, as it is far more restrictive of the offender's liberty. Since a conditional sentence is, at least notionally, a sentence of imprisonment, it follows that it too should be interpreted as more punitive than probation.

The consequences of finding a breach of a conditional sentence order are serious and may lead to imprisonment in a custodial institution. However, custodial incarceration involves limiting the liberty of a person whose liberty is already seriously restricted by reason of his conviction for a criminal offence and the imposition of a conditional sentence, which, as stated above, is a form of imprisonment.

Given the context in which a breach hearing takes place, I am satisfied that Parliament intended nothing more than the ordinary standard of proof required in civil cases, i.e. a mere preponderance of probability is the applicable standard.

[34] One other preliminary point about the standard of proof at a s. 742.6(9) breach hearing relates to the assessment of circumstantial evidence. As noted at the beginning of these Reasons, the Crown seeks to prove the alleged breach on the basis of circumstantial evidence. In my view, a great deal of judicial learning and experience concerning circumstantial evidence applies at this hearing, regardless of the burden of proof (as will be explained below). However, there is one particular principle concerning circumstantial evidence that does relate to the ultimate burden of proof beyond reasonable doubt at a criminal trial. That is the well-known principle recently discussed by the Supreme Court in R. v. Villaroman (2016), 2016 SCC 33, 338 C.C.C. (3d) 1 at paras. 30 and 37-41 (S.C.C.), where Cromwell J. stated on behalf of the Court:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with an example.

When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d , [1938] S.C.R. 396 (S.C.C.); R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11 (B.C. C.A.), at para. 20; R. v. Mitchell, [2008] QCA 394 (S.C.C.), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, [1972] S.C.R. 2 (S.C.C.), at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

While this language is not appropriate for a jury instruction, I find the idea expressed in this passage — that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative — a helpful way of describing the line between plausible theories and speculation. [Italics of Cromwell J., underlining added for emphasis].

[35] It can be seen from the above passages in Villaroman that are underlined for emphasis, to the effect that guilt must be “the only reasonable inference” and that “other reasonable possibilities” inconsistent with guilt must be excluded, that this principle relates to the ultimate burden of proof beyond reasonable doubt. That burden applies at the end of a criminal trial, and not at this hearing relating to a sentencing issue where the alleged breach of a CSO must be proved on the civil standard, that is, on a balance of probabilities. Also see: R. v. Filippelli, supra at paras. 13-14.

(ii) The alleged breach of the CSO in this case

[36] In my view, the most important circumstantial evidence relating to whether Collins was involved in the October 30, 2023 armed robbery at “Distinctive Time”, either as a co-principal or as an aider or abettor, can be organized into three broad areas or issues as follows:

• First, there is overwhelming evidence that Collins was the man in the grey tracksuit with the hood up who purchased two packages of DeWalt walkie-talkies at a Home Depot store in south Etobicoke on October 26, 2023. Collins undoubtedly met with his probation officer, Tamika Charles, at the Pickering office of Probation and Parole at about 1:00 p.m. that day. She believed he was wearing a grey tracksuit. A man wearing a grey tracksuit with the hood up can be seen on video surveillance entering the office at about that time. He arrived in a Ford Bronco and then left in the same Ford Bronco at about 2:21 p.m. Fifteen minutes later, at 2:36 p.m., Collins’ phone was located just east of Yonge Street on Highway 401. Thirty minutes later, at 3:05 p.m., the phone was close to the Home Depot at the south end of Highway 427 when it received an incoming call from Tamika Charles. A similar Ford Bronco to the one seen at the Pickering office of Probation and Parole can be seen on video surveillance arriving at the Home Depot store in south Etobicoke. A man dressed in a grey tracksuit with the hood up, that appears to be generally similar to the one seen at the Pickering office, exited the Ford Bronco, entered the Home Depot, and purchased two packages of DeWalt walkie-talkies at 3:10 p.m. This man has similar eyes, nose, skin colour, and general body type, to Collins. More importantly, the man has a distinctive tattoo on his left hand and wrist that is similar to a distinctive tattoo on Collins’ left hand and wrist. Equally importantly, the grey Nike tracksuit with black trim worn by the man at the Home Depot appears to be the same kind of tracksuit as the one later seized in Collins’ residence and car. Finally, the Home Depot receipt for the purchase of the DeWalt walkie-talkies was found by the police four days later, on October 30, 2023, in a small cardboard box together with two other items – a balaclava and a mask. Both of these other two items had Collins’ DNA on them. The totality of this body of circumstantial evidence overwhelmingly infers that Collins purchased the two sets of walkie-talkies at this Home Depot store on October 26, 2023;

• Second, the small cardboard box containing the balaclava, the mask, and the Home Depot receipt for the DeWalt walkie-talkies was undoubtedly an instrumentality that was used in the robbery of “Distinctive Time” on October 30, 2023. There is a close proximity in time between the October 26 purchase of the walkie-talkies at Home Depot and the October 30 robbery. Indeed, it appears that the two robbers attempted to commit the robbery the very next day, after the October 26 purchase at Home Depot, because they can be seen arriving at “Distinctive Time” on October 27 and attempting unsuccessfully to gain entry. Three days later, on October 30, video surveillance shows that walkie-talkies were used in the robbery and they appear to be similar to the ones purchased at Home Depot. More significantly, the small cardboard box with the Home Depot receipt for the walkie-talkies and the balaclava and mask with Collins’ DNA, was also used during the robbery as a fake FedEx delivery package. Its primary purpose was to allow the robbers to gain entry to the premises. That box had a further or secondary purpose during the robbery because it contained blue and green shopping bags that were removed from the box while the robbers were packing up the stolen watches. The blue bag was filled up and placed in another cardboard box (although it appears this blue shopping bag in the other cardboard box was never taken away by the robbers, who were busy loading other larger containers). The totality of this body of circumstantial evidence overwhelmingly infers that the walkie-talkies purchased at Home Depot by Collins on October 26, 2023, and the small cardboard box with Collins’ DNA on two items inside the box, were both instrumentalities that were used in the October 30, 2023 robbery of “Distinctive Time”; and

• Third, the description of the second robber provided by the owner of “Distinctive Time”, together with the video surveillance images of this robber, reveal several similarities to Collins and no dissimilarities. The video surveillance at “Distinctive Time” shows that the owner had a good opportunity to view the two robbers, as summarized above. The employee who came to the door had a poor opportunity to view the robbers, especially in relation to the second robber who was “behind” the “FedEx guy” and who immediately tackled the employee to the ground, as summarized above. The description of the second robber provided by the owner is set out above. In particular, he described this male as “not like fully black … probably around Obama … lighter black … his face was fairly smooth … late twenties … a bit taller than the white guy. Maybe six one, six two … A slim build … 200ish … I told the dispatch 180 on the phone … it’s in that range.” These characteristics are consistent with the video surveillance images of the second robber. More importantly, they are consistent with Collins who has smooth skin, is six feet tall, weighs 198 pounds, and is 29 years old. He has a black father and a white mother and has the brown skin colour of a lighter black male. In addition, this second robber was wearing white running shoes and what looks like a black balaclava that covered the sides of his face and his neck. This was different from the “FedEx guy” who wore black shoes and a black Covid mask that left the sides of his face and his neck visible. Collins has distinctive tattoos on his neck and on the sides of his face and so there would be good reason, if he was to be involved in the robbery, to wear something more than a Covid mask. The police found a black balaclava and white Air Force One shoes in the trunk of the Mercedes car that Collins was driving at the time of his arrest. The employee at “Distinctive Time” said in his police statement that one of the robbers wore “white shoes, Air Force Ones.”

[37] The three bodies of circumstantial evidence summarized above must be assessed together, that is, in their totality and not piecemeal. Watt J.A. gave the judgement of the Court of Appeal in its recent decision in R. v. Gibson, 2021 ONCA 530 at paras. 75-79. He gave the following helpful summary of certain principles relating to the assessment of circumstantial evidence:

Some principles about the nature of circumstantial evidence and its use as proof of facts in a criminal case help resolve this claim of error.

First, circumstantial evidence is all about inferences. Individual items of circumstantial evidence give rise to a range of inferences. The available inferences must be reasonable according to the measuring stick of human experience. That there may be a range of inferences available from an individual item of circumstantial evidence does not render the item of evidence irrelevant or neutralize its probative value: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 112, per Martin J. (dissenting, but not on this point), citing R. v. Smith, 2016 ONCA 26, 333 C.C.C. (3d) 534, at para. 77.

Third, the standard of proof applies to the evidence taken as a whole, not to each individual item of circumstantial evidence: R. v. Morin, [1988] S.C.R. 345 at pp. 359, 362 …

Finally, where proof of an essential element or the offence charged depends wholly or substantially on circumstantial evidence, it is the cumulative effect of all the evidence, taken together, each item in relation to another and the whole, that must be considered in determining whether the standard of proof has been met: Cote v. The King (1941), 77 C.C.C. 75 (S.C.C.), at p. 76.

[38] It must be remembered that Watt J.A. was speaking of circumstantial evidence and the ultimate burden of proof beyond reasonable doubt in Gibson, and not about the lower standard of proof on a balance of probabilities that applies at the present hearing. In the case of this latter standard, it is equally or more important to assess “the cumulative effect of all the evidence taken together” and not focus on the fact that “individual items of evidence give rise to a range of inferences.” Also see: R. v. Calnen (2019), 2019 SCC 6, 374 C.C.C. (3d) 259 at para. 112 (S.C.C.); R. v. Coté (1941), 77 C.C.C. 75 at p. 76 (S.C.C.); R. v. Morin (1988), 44 C.C.C. (3d) 193 at p. 208 (S.C.C.); R. v. Uhrig, 2012 ONCA 470 at para. 13.

[39] In my view, the first two bodies of circumstantial evidence summarized above are particularly compelling in connecting Collins to the robbery. Collins’ purchase of the walkie-talkies shortly before the robbery, their connection to the robbery, the use of the small fake delivery box in the robbery, and Collins’ undoubted connection to that box through his DNA and through the Home Depot receipt, all combine to infer that Collins was involved in the robbery, either as a co-principal or as an aider or abettor. There is no innocent explanation for these two compelling bodies of circumstantial evidence.

[40] The third body of evidence summarized above concerns similarities between Collins’ appearance and the second robber’s appearance, and the absence of any dissimilarities. The law is clear that evidence of a similarity in appearance, or a resemblance, between an accused person and the perpetrator of an offence, can be considered by the trier of fact together with other circumstantial evidence in determining whether the Crown has proved the element of identity beyond reasonable doubt. See: R. v. Brown (2009), 2009 ONCA 563, 251 O.A.C. 264 at para. 26 (Ont. C.A.); R. v. Cole (2006), 69 W.C.B. (2d) 760 at para. 60 (Ont. S.C.J.); R. v. John, 2010 ONSC 6085 at paras. 10-16. Whether evidence of a resemblance, or similarities in appearance, does or does not complete the Crown’s proof on the issue of identification, of course, depends upon the strength of the other circumstantial evidence relating to that issue. As Watt J.A. put it in R. v. Rybak (2008), 2008 ONCA 354, 233 C.C.C. (3d) 58 at para. 121 (Ont. C.A.), giving the judgement of the Court:

As a general rule, a resemblance, without more, does not amount to an identification. But the combined force of evidence of a resemblance and other inculpatory evidence may assist in completion of the prosecutor’s proof.

Also see: R. v. Boucher (2000), 146 C.C.C. (3d) 52 at para. 19 (Ont. C.A.); R. v. Mariani (2007), 2007 ONCA 329, 220 C.C.C. (3d) 74 at 83 (Ont. C.A.); Chartier v. Att. Gen. (Que.) (1979), 48 C.C.C. (2d) 34 (S.C.C.). In the present case, as noted above, the first two bodies of circumstantial evidence are compelling in connecting Collins to the robbery.

[41] In conclusion, I am satisfied that the three bodies of circumstantial evidence summarized above easily establish, on a balance of probabilities, that Collins was involved in the robbery either as a co-principal or as an aider or abettor. See R. v. Thatcher (1987), 32 C.C.C. (3d) 481 (S.C.C.). In the result, the Crown has proved the alleged breach of the statutory “keep the peace and be of good behaviour” term of the CSO.

(iii) The appropriate remedy for the CSO breach in this case

[42] Turning to the remedial stage of the CSO breach hearing, the four available remedial responses set out in s. 742.6(9) have already been summarized above. The Crown seeks complete revocation of the CSO, replacing it with an order that Collins serve the remainder of his sentence in jail. The Crown relies on the premises or rationale for the original CSO sentence and stresses the gravity of the breach. The defence seeks a continuation of the CSO but with even tighter “house arrest” terms, for example, with no exceptions and with GPS monitoring. This would allow Collins to be at home, where he could help his young autistic daughter, and it would allow him to prepare for the robbery trial out of custody, that is, if he was able to get bail on the robbery charge. The defence also notes that Collins has now spent just over two months in custody, since his arrest on May 9, 2024, and submits that this period in jail can be applied to an amended CSO sentence (pursuant to s. 742.6(16), I assume).

[43] There are two decisions of the Court of Appeal that provide helpful guidance concerning the remedial stage of a CSO breach hearing. The conditional sentence provisions in the Criminal Code were legislated in 1995 and they came into force in 1996. In a relatively early decision, R. v. Filippelli, supra at paras. 24-27, the Court addressed cases like the present one, where the alleged breach involves the commission of a further offence. Armstrong J.A. gave the judgement of the Court and stated the following:

The sentencing judge referred to the various options in his reasons and his decision is in accord with the presumption in favour of incarceration endorsed by the Supreme Court of Canada in R. v. Proulx, supra, at p. 473 (C.C.C.):

More importantly, where an offender breaches a condition without reasonable excuse, there should be a presumption that the offender serve the remainder of his or her sentence in jail … This constant threat of incarceration will help to ensure that the offender complies with the conditions imposed. It also assists in distinguishing the conditional sentence from probation by making the consequences of a breach of condition more severe.

In a case some three years earlier than Proulx, Rosenberg J.A. of this court fully supported the concept that where the court finds a breach of condition, particularly if the breach involves the commission of a further criminal offence, it is appropriate for all or a portion of the unexpired term of the offender's sentence to be served in custody. In the aforementioned case, R. v. Wismayer (1997), 33 O.R. (3d) 225, 115 C.C.C. (3d) 18 (C.A.), Justice Rosenberg stated at 238:

In my view, Parliament intended that committal to prison be a real threat both to indicate to the offender the seriousness of violation of the terms and to reassure the community. The procedure under s. 742.6 appears to be more straightforward than the little-used procedure for revoking a suspended sentence. It is also easier than proof of breach of probation which, being a criminal offence, requires proof beyond a reasonable doubt in accordance with the normal rules of evidence.

In my view, this simple and expeditious procedure for dealing with violations of the order has important implications in understanding and applying the conditional sentence regime. This procedure which is set out in s. 742.6 reinforces the point that this is a sentence of imprisonment that the offender is permitted to serve in the community. It is appropriate that if the offender breaches the order, and particularly if the breach represents the commission of a further offence or endangers the community, all or a portion of the unexpired term of the sentence be served in prison.

It is important to maintain the integrity of the conditional sentence regime. This is accomplished when the community understands that conditional sentences are not just another form of probation.

This court has had the benefit of complete submissions by counsel for the appellant as to the proper disposition. I am satisfied that the decision to terminate the conditional sentence order was a fit disposition given the seriousness of the breach and the prescription in favour of termination of the order. [Emphasis added].

[44] More recently, in R. v. Antaya, 2022 ONCA 819 at paras. 6-10 and 16, the Court (Pardu, Miller, and Copeland JJ.A.) stated the following:

In R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 21 and 38-39, Chief Justice Lamer held that where an offender breaches a condition of a conditional sentence order, there should be a presumption that they serve the remainder of the sentence in jail. He explained that the threat of incarceration would help ensure compliance with the conditions of the order, and would distinguish conditional sentence orders from probation orders.

That said, s. 742.6(9) provides sentencing judges with a variety of possible orders, where a breach of a conditional sentence order is proven. Ultimately, the sentencing judge has discretion to determine which of the available orders in s. 742.6(9) is appropriate in all of the circumstances: R. v. Langley, 2005 BCCA 478, 202 C.C.C. (3d) 431, at paras. 6-7,13; R. v. Ramsaran, at para. 65.

It is clear that the remedial options set out in s. 742.6(9) represent a sliding scale of options available to a sentencing judge, from least restrictive (take no action), to moderately restrictive (change the optional conditions or order the offender to serve a portion of the unexpired sentence in custody and then resume the conditional sentence, with or without a change in conditions), to most restrictive (terminate the conditional sentence and direct that the offender be committed to custody for the balance of the sentence).

As with any other sentencing decision, determining the appropriate order for a breach of a conditional sentence order is an individualized process. In deciding which order is appropriate in a given case, the sentencing judge must consider all of the circumstances, including the nature and circumstances of the breach; the circumstances of the offender; the time remaining on the conditional sentence order; and the ordinary principles of sentencing (including, for example, denunciation, general and specific deterrence, proportionality, and restraint): Langley, at paras. 6-7, 13. In cases where, as is sometimes done, the conditional sentence imposed was longer than an appropriate sentence of incarceration would have been, this may also be a relevant factor. These factors must be considered within the particular context of the conditional sentencing regime.

We are not persuaded that the sentencing judge gave undue weight to the presumption in favour of termination. After referring to the presumption in favour of termination, the sentencing judge said that she was considering all of the circumstances in determining the appropriate order. She then gave four specific reasons why she was of the view that terminating the conditional sentence order was appropriate. The sentencing judge’s reasons for judgment on the breach and for sentence are clear that she found that the breach was deliberate, that she was concerned that this was a second breach by the appellant of the conditional sentence order, and that she had come to the conclusion that the appellant was not prepared to abide by the conditional sentence order.

In our view, the appellant’s submission regarding the fitness of the sentencing focuses unduly on the circumstances of the second breach in isolation. The jurisprudence on conditional sentence breaches is clear that they are a unique form of sentence. The order imposed for breach of a conditional sentence serves not only as a sentence for the breach, but also as a means to address whether it is still appropriate for the offender to serve the original sentence, or some portion of it, in the community: R. v. McIvor, 2008 SCC 11, [2008] 1 S.C.R. 285, at paras. 12-15; R. v. Ramsaran, at paras. 63-65. The fitness of an order made under s. 742.6(9) following the breach of a conditional sentence order must be assessed in the context of the circumstances of the original offence(s), the circumstances of the breach, and the circumstances of the offender. [Emphasis added].

[45] It can be seen that both Filippelli and Antaya refer to a “presumption” in favour of incarceration as the remedy for breach of a CSO, based on Chief Justice Lamer’s reasons in R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 at paras. 21 and 36-39 (S.C.C.), speaking for the unanimous full Court. There is no statutory or legal “presumption” of incarceration as the favoured remedy for a CSO breach, in the strict sense of that term, given that s. 742.6(9) does not enact any shifting burden of proof or evidential burden in relation to this remedy. That provision simply sets out four available remedies, any one of which “may” be imposed. See, e.g. R. v. Lemire (2014), 2014 NBCA 69, 427 N.B.R. (2d) 372 at para. 7 (N.B.C.A.); R. v. Booh (2003), 2003 MBCA 16, 171 C.C.C. (3d) 108 at paras. 15-18 (Man. C.A.); R. v. T.E.L. (2005), 2005 BCCA 478, 202 C.C.C. (3d) 431 at paras. 4-7 (B.C.C.A.). In my view, Lamer C.J.C. used the term “presumption” in Proulx as an expression meaning that criminal law policy and statutory interpretation tended to favour incarceration as a s. 742.6(9) remedy, in order to emphasize Parliament’s intention to enact the CSO as a relatively punitive form of incarceration in the first place, prior to any breach. At most, there is a “presumption of fact”, upon proof of the breach, that incarceration may be the appropriate remedy. See Sopinka et al, The Law of Evidence in Canada, 4th Ed. [Lexis Nexis, 2014] at pp. 137-145. The Court of Appeal in Antaya made it clear that the judge at the CSO breach hearing “has discretion to determine which of the [four] available orders in s. 742.6(9) is appropriate in all the circumstances.”

[46] One critically important circumstance in the present case, that was stressed in R. v. Antaya, supra at para. 16, is “whether it is still appropriate for the offender to serve the original sentence, or some portion of it, in the community.” The sentencing hearing that led to the underlying CSO in this case took place on September 5, 2023. At that hearing, Ms. Schofield filed an impressive documentary record, seeking to establish Collins’ reformation during the three years that he had been on bail. It will be recalled that the five offences to which Collins had pleaded guilty all occurred during 2020. The documentary record, inferring Collins’ reformation during the three years since these index offences, included detailed letters from family members and business associates in the music industry, as well as a report from Collins’ therapist and various business records. Although this evidence was impressive, I advised Ms. Schofield during the hearing that it would carry greater weight if her client testified about these subjects, so that I could assess his sincerity. Ms. Schofield then called her client and he gave detailed testimony at the September 5, 2023 sentencing hearing.

[47] The totality of this evidence, relating to Collins’ reformation during the three years that he was on bail, is set out in my Reasons for Sentence. The relevant context, concerning Collins’ difficult childhood and upbringing and his criminal antecedents, is also set out in my Reasons. The critical highlights of this evidence, which led me to conclude that a CSO was the appropriate sentence, were as follows:

According to Ms. Slacks, Collins was “never the same” after the above period in his teenage years when his birth mother and his best friend were both murdered and when he was the victim of dangerous gunpoint robberies. She described how he started to “become disinterested and gravitate toward a certain crowd of youth”. His aunt confirmed that the above events during Collins’ teenage years had a “profound impact on Christian”. She described “a discernible shift in his demeanour” as he “became engrossed in online engagements, bonding with individuals he labelled as friends”. His aunt stated that her “reservations about these connections sadly materialized” because Collins became involved in criminal activity. He testified that his friends were all selling drugs and so he started selling drugs, committing break and enters, and using drugs. He thought this was normal.

Collins has been in a long-term relationship with Destiny Shaw. He has been with her for 11 years, since they met in high school. They live together common law. When Collins was arrested on September 9, 2020 for the present “Project Sunder” offences, he remained in custody until he was released at a bail hearing on October 16, 2020 …

Collins testified that he first learned, at the above bail hearing in October 2020, that Ms. Shaw was pregnant with his child. This had a significant impact on him. The way in which he responded to the pregnancy is tied up with Collins’ interest in music. He had always loved music and had begun playing around with friends, at age 13 and 14, making music on a laptop computer … Once Collins was released on bail in October 2020, and resumed living with Ms. Shaw, he was inspired by her pregnancy and the prospect of having a child. He testified that he began writing music and going to the studio in a much more serious way. He wanted to change and begin to make music as a business.

A considerable amount of evidence was heard at the sentencing hearing about the development of Collins’ music career during the past three years, since he was released on bail, as well as the impact on him of the birth of his and Ms. Shaw’s daughter in May 2021. Ms. Shaw is presently writing her real estate licensing exams. She provided a thoughtful and articulate letter in which she stated:

Since our daughter’s arrival into our lives, Christian has embraced the role of a loving, caring, and responsible father with unwavering dedication. I truly believe she is the missing piece he needed to put his life into a hopeful perspective and encourage social-emotional growth. His relationship with our daughter is filled with affection, support, and the kind of nurturing presence that every child needs during their formative years.

In addition, Christian has shouldered the substantial responsibility of being the sole provider for our family while I pursue my studies in real estate. His dedication to our family’s financial stability has been instrumental in ensuring that we have a secure and comfortable home. He is determined to break the cycle of poverty that has affected our families in the past and desires to provide a brighter future for our daughter.

I believe Christian has changed for the better, and his current actions speak volumes about his character and commitment to rehabilitation. I kindly request the court’s consideration of his transformation when evaluating a reasonable sentencing. Recognizing the positive changes in his life could not only benefit our family but also society as a whole by allowing him to continue contributing positively to our community.

Collins testified that upon his release on bail in October 2020, he sought advice from two important and successful businessmen, in order to develop his music career in a more ambitious and professional way. He also worked with these two men in order to use his music career as a form of community service, trying to help young people develop their talents, turn away from crime, and gain insight into their behaviour. These two businessmen who helped Collins with advice and direction are Carl Blackman and Ajay Saxena. Mr. Blackman owns Gallery 223 which is a commercial studio space where young artists work and where merchandise that promotes the artists (such as hats and t-shirts) is manufactured. Mr. Blackman is also the director of “Lead to Change,” a non-profit program “where young people of colour are able to learn, develop and succeed through the power of transformative arts and wellness.” He stated the following:

I met Christian in 2017 through some music industry contacts and he has been a great help with our recording arts students. We had the pleasure of having him share his story of getting into the music industry and giving students in our program both recording and marketing advice to help advance their individual careers. Christian also participated and donated to our non-profit-led charitable event in December 2022 in the neighbourhood he grew up in.

People like Christian that have lived experiences through making bad decisions are beneficial to our program as they speak the same language and can reach out in a familiar way to keep our young people focused on their passion and careers. Not everyone takes their own personal time to assist in this way which speaks volumes about his character. I have received positive feedback from some of our youth regarding Christian’s interactions and look forward to his contributions in the future.

Collins testified that he is now taking a much more business-like approach to his music career, as a result of the help and advice he has received. He has 65,500 listeners on Spotify and he is also on Apple Music. This provides one stream of income. He also collaborates with other artists, making “features”, which provides another stream of income. In addition, he is selling merchandise under his “Against All Odds” brand, obtaining Canadian artist grants, and booking shows which all provide further streams of income. Based on these multiple streams of income from his music career, he estimated that he earned between $50,000 and $70,000 last year and he anticipates doubling that income next year and making between $120,000 and $150,000. As a result, he is actually “making a living” from his music and he is able to “provide for his family like a man”, as he put it. He appears to have a sense of pride and purpose. He testified that he cannot go back to his previous life as it would put his family in jeopardy. He never used to think about the future. Now he believes that he has something to lose, namely, his family with Ms. Shaw and his two year old child, as well as his successful music career with the income that allows him to provide for his family. Various documents filed on the sentencing hearing, relating to financial grants, merchandising, music distribution, and booking shows, all tend to confirm the recent success of Collins’ music career.

The final area of evidence relating to Collins’ personal growth and development in the last three years concerns his mental health. Collins testified that he received counseling for about ten months in 2015, when he would have been age 20 and 21. He was diagnosed with PTSD, as a result of the violence that surrounded him when he was growing up. He acknowledged in his testimony that he was not really committed to counseling at this time. His stepmother, Ms. Slacks, stated that she believes Collins suffers from PTSD, noting that he is always anxious and worried. She encouraged him to seek counseling. After his guilty pleas before me on May 8, 2023, Collins attended seven counseling sessions, in July and August 2023, with Carole Eastman of HOW Recovery Counselling Services. Collins testified that these counseling sessions with Ms. Eastman have been very helpful. He began to have insight into the trauma that he experienced when he was young, its effect on his mental health, and how it has been helpful to acknowledge his vulnerabilities and to begin addressing them. Ms. Eastman provided a report and stated the following:

During our time together, Mr. Collins was able to process and make sense of “what happened to him” and what has given him the ability to overcome the many adversities/challenges he has experienced during his life.

Mr. Collins experienced many adverse traumatic events growing up, which the traumatic stress field has adopted the term as “complex trauma” to describe the experience of multiple, chronic, and prolonged, developmentally adverse traumatic events that occur within the child’s caregiving system.

Complex traumas often result in the development of maladaptive survival styles into adulthood. Adults who have experienced childhood traumas very often continue to struggle with profound difficulties in various areas such as, emotional regulation, self-perception (low self-esteem/shame), relationships to others (inability to trust), systems of meaning (low sense of purpose/belonging).

However, the good news is the individual can heal and experience profound positive changes and find new meaning and enthusiasm for life, often referred to as Post-Traumatic Growth, “PTG”. PTG happens when someone who has struggled to survive is essentially forced to reevaluate their core beliefs as they try to make sense of what happened to them …

It appears evident during our sessions that over the past few years, Mr. Collins has experienced PTG. His creativity emerging with his talent as a successful musician which provides for him a sense of purpose/meaning, a way to express his emotions/pain/healing, and most importantly, ability to feel human connection and a positive sense of self (self-esteem).

Mr. Collins has also fostered successful intimate relationships, love and nurturing. The long-term relationship with his partner of many years and the birth of his daughter who is now 2 years of age, has provided a new sense of responsibility, nurturing attachment & love, giving true internal motivation to growth/change.

His developed sense of human connection and belonging, love and nurturing, and own lived experience, has also provided Mr. Collins with a great sense of empathy for others and the desire to give back to his community and help other youth that have suffered similar traumatic experiences, providing hope, strength and courage.

Collins testified that he is committed to continuing his counseling with Ms. Eastman in the future. He no longer thinks that his previous life was “normal”, because his present life is so different. He also plans to continue volunteer work with young people at Mr. Blackman’s “Lead to Change” program. He testified that when he tells young people that “jail is not cool” and that people actually get killed from guns and drugs, based on his own “lived experience”, the young people will “put down their phones and really listen”. No one ever talked to Collins like this, based on their own real life experience, when Collins was young. Finally, Ms. Schofield questioned Collins as to what he now thinks about his admitted Count One criminal conduct, involving the trafficking of hard addictive drugs to poor Aboriginal people on Manitoulin Island who would pay him with their welfare cheque money. Collins struggled for words to explain how he felt. He testified that it was “very low” and “very insensitive” to benefit financially from others’ mental illness and addiction. There was no challenge to Collins’ credibility as a witness at the sentencing hearing. I watched him and listened to him carefully. In my view, he was a credible witness. In this regard, the substantive content of his testimony was strongly supported by all the corroborating documentary evidence and letters that were filed by the defence. [Emphasis added].

See R. v. Collins, supra at paras. 42, 45-47, 52, and 54-49.

[48] The above body of evidence, heard at the September 5, 2023 sentencing hearing, convinced me that Collins had given up his previous life of crime. He now had developed self-esteem that comes from successful law-abiding work, a loving family, and a commitment to helping his community. He also now had “something to lose”, as he put it, if he was to return to a criminal lifestyle. I wrote Reasons for Sentence over the next five weeks, delivering them on October 13, 2023. I stated that “the appropriate sentence is a close judgement call” but that “Collins’ successful reformation” led me to conclude that “he is not a danger to ‘the safety of the community’.” I stated that the mitigating circumstances were “exceptionally strong … relating to both diminished moral culpability and the complete reformation of the accused while on bail.” In relation to this latter mitigating circumstance, I concluded as follows:

Fourth, Collins was personally inspired, both by Ms. Shaw’s pregnancy and by his own love of music, to turn his life around. When he was released on bail three years ago, he set about becoming a successful musician who could support his family. I have already summarized the impressive body of evidence called by the defence at the sentencing hearing concerning Collins’ progress during the last three years. I am satisfied that he is completely reformed. Indeed, I do not recall another case where I have seen such a complete and successful reformation prior to sentencing. That reformation has many facets: a successful career; a strong family life; community service that may help prevent other young people from leading lives of crime; and successful counseling related to Collins’ own mental health issues … [Emphasis added].

See: R. v. Collins, supra at paras. 65, 68, 72, and 90.

[49] In light of the CSO breach that has been established at the present hearing, it is apparent that the above conclusion concerning Collins’ “complete and successful reformation” was at best premature and at worst erroneous. The evidence concerning Collins’ reformation, during his three years on bail, was an essential predicate or premise for the conclusion that a CSO was the appropriate sentence in this case. Otherwise, that sentence would never have been imposed. The five offences were far too serious to justify a CSO for a recidivist, absent his “complete and successful reformation” (in combination with all the other mitigating circumstances).

[50] I appreciate that Collins has now completed more than six months of the CSO and that he complied with its other terms, including substantial community service. I also appreciate that he appears to have a strong bond with his three year old daughter and that she would undoubtedly benefit from his presence at home. However, none of this can negate the fact that the original CSO sentence is no longer fit.

[51] Another important circumstance in this case, relating to the remedial discretion in s. 742.6(9), is that the five offences Collins pleaded guilty to all involved danger to the public. It will be recalled that the underlying index offences, for which Collins was being sentenced when the CSO was imposed, involved trafficking in hard drugs and possession of a loaded prohibited firearm. This kind of criminal conduct obviously “endangers the safety of the community” and would statutorily prevent any consideration of a CSO, pursuant to s. 742.1, if there was concern about recidivism. The breach offence, an armed robbery where a handgun was pointed at the victims, also “endangers the safety of the community”. These circumstances engage a principle that the Court of Appeal referred to in R. v. Wismayer (1997), 115 C.C.C. (3d) 18 at pp. 33 and 44-45 (Ont. C.A.), where Rosenberg J.A. (Morden A.C.J.O. and Austin J.A. concurring) stated:

In my view, this simple and expeditious procedure for dealing with violations of the order has important implications in understanding and applying the conditional sentence regime. This procedure which is set out in s. 742.6 reinforces the point that this is a sentence of imprisonment that the offender is permitted to serve in the community. It is appropriate that if the offender breaches the order, and particularly if the breach represents the commission of a further offence or endangers the community, all or a portion of the unexpired term of the sentence be served in prison. However, the fact that the offender may end up serving the sentence in prison suggests to me that the court must carefully assess the appropriate length of the sentence. In my view, in setting the length of the sentence the court should contemplate that the offender may ultimately serve the sentence in prison.

To summarize, s. 742.1 and the companion provisions are designed to give effect to the important principle of restraint in the use of incarceration and should be given a suitably large and liberal construction. Having decided to impose a sentence of less than two years, the trial judge must take into account all of the relevant principles, objectives and factors of sentencing in determining whether or not to impose a conditional sentence of imprisonment. The principal factor, however, should be whether permitting the offender to serve the sentence in the community under a conditional sentence order would endanger the safety of the community because of the risk that the offender will reoffend. [Emphasis added].

[52] In my view, Collins’ ongoing course of criminal conduct during the five underlying offences for which he is being sentenced, and during the more recent breach offence, indicates that he remains a danger to the public. This is a further reason as to why the CSO is no longer appropriate.

D. Conclusion

[53] For all these reasons, the CSO is terminated and Collins is “committed to custody until the expiration of the sentence”, pursuant to s. 742.6(9)(d). I will hear any submissions from the parties as to the date or dates from which the remainder of the sentence runs, in light of the provisions in s. 742.6(10) and s. 742.6(16) concerning “the period of suspension” of the sentence. In this regard, see R. v. Atkinson (2003), 174 C.C.C. (3d) 144 (Ont. C.A.).

[54] I am grateful to both counsel for the expeditious and professional way in which they conducted this hearing.

M.A. CODE J.

Released: July 19, 2024