Court File and Parties
Court File No.: CR-23-0102-0000
Date: 2024 08 20
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
v.
ANTHONY WAYNE MITCHELL
Reasons for Sentence
BEFORE THE HONOURABLE JUSTICE C. CONLAN
on August 20, 2024, at MILTON, Ontario
Appearances:
K. Ginn Counsel for the Crown
J. Heaton Counsel for Anthony Wayne Mitchell
Reasons for Sentence
Conlan, J. (Orally):
Mr. Mitchell is before the Court to be sentenced on two matters that he has been found guilty and convicted of. Count one on the indictment is the offence of robbery, contrary to section 344(1)(b) of the Criminal Code of Canada. Count three on the indictment is the offence of unlawful confinement, contrary to section 279(2) of the Criminal Code.
On May the 17th, 2024, Mr. Mitchell entered guilty pleas to those two counts, counts one and three, and the matter was adjourned for sentencing, ultimately to today's date. The Court has the benefit of some evidence that has been filed at sentencing. In particular, Exhibit number 2, the criminal record for Mr. Mitchell. There is no doubt that Mr. Mitchell is amassing an unenviable criminal record including multiple convictions for violence, but it should be noted as counsel had pointed out that as of the time that he committed these two offences, Mr. Mitchell had no criminal record. Exhibit number 3, the Pre-Sentence Report prepared for other matters out of Toronto, which does give the Court some thorough background about Mr. Mitchell. In Exhibit number 4, Material filed by the defence including the affidavit of Mr. Mitchell and some records from the correctional facilities. The facts of the offences, I agree with the Crown, can only be described as being very serious, frightening, and brazen.
On the date in question, Mr. Mitchell and others entered the premises of the Telus mobility store in Milton. They all had black plastic masks covering their faces and they brought two large duffel bags with them. What transpired was caught on video surveillance, still photos which are included in the agreed statement of facts marked as Exhibit number 1. Mr. Mitchell and his associates approached two employees of the store. The two employees had their hands bound by plastic zip ties and they were marched into the back room where there was a third employee finishing his work break. The employees were forced onto their knees on the ground. One of Mr. Mitchell's associates told the employees that one of them was going to die. The code for the store safe was demanded. Mr. N. was taken to the storeroom and forced to open up the safe. The assailants packed the duffle bags with valuable merchandise from the store and then escaped in a waiting getaway vehicle, that was a pickup truck that had been stolen by unknown persons the day before. The total value of the stolen merchandise was over $135,000.
In terms of the circumstances of the offender, as I indicated previously, Mr. Mitchell had no criminal history at the time he committed these offences, and he is still quite a young man, currently 22 years of age. There is in many respects a joint submission before the Court. Courts ought to generally accede to joint submissions on sentence unless they are so entirely unfit such that acceptance of the joint submission would cause the public to lose confidence in the criminal justice system and bring the administration of justice into disrepute. The thirty months jointly being proposed as the gross sentence for Mr. Mitchell is certainly not unfit given the mitigating and aggravating factors in this case, and so this Court will not be disturbing the gross sentence of thirty months in custody before consideration of pre-sentence custody. The other aspects of the sentence being jointly proposed are also quite reasonable and none of those items will be disturbed by the Court. In terms of the principles of sentencing, I think that the paramount principles of sentencing in this case are denunciation, to denounce Mr. Mitchell's serious unlawful conduct. General deterrence, to deter other like-minded members of the community from committing these types of violent offences. Specific deterrence, to deter Mr. Mitchell from committing these types of offences or any criminal offences in the future. And finally rehabilitation, rehabilitation cannot be overlooked as Mr. Mitchell
is still quite a youthful adult and as I have indicated a couple of times, he, at the time that he committed these offences was a first offender.
In terms of the ancillary orders, all of those jointly proposed by counsel are imposed by this Court and they are as follows. There is a section 109 Criminal Code firearms and weapons prohibition order for ten years and for life for certain items, as per the two subsections. There is a primary DNA order issued. There is a section 743.21 Criminal Code non-communication order issued with regard to A.A., M.S., D.N., Y.M., and C.D. The victim fine surcharges are waived on both convictions given the fact that Mr. Mitchell has been in custody now for some period of time.
The probation order being jointly proposed by counsel is also imposed by this Court. Its start date will be spoken about in a moment and depends on the assessment of pre-sentence custody to some degree. The duration of the probation order will be for three years. All of the statutory terms apply.
In addition, Mr. Mitchell shall have no contact or communication directly or indirectly by any means with the victims except in the presence of legal counsel or as required for the purpose of court attendances. As well, Mr. Mitchell shall not be within 100 metres of the person of or any place that he knows any of these persons to be (the victims). On the 100-metre radius clause, for two of the named persons, Y.M. and C.D., there are exceptions, in the presence of legal counsel and as required for court attendances. As well, Mr. Mitchell shall not attend at the Telus Mobility store located at 1390 Steeles Avenue in Milton. As well, Mr. Mitchell shall not be in possession of any firearm or weapon as defined by the Criminal Code, or any licence or authorization, therefor.
Now in terms of the treatment of the pre-sentence custody and how the warrant of committal will be worded, this Court agrees with the alternative position put forward by the Crown today. Thus, on count number one, the robbery conviction, the warrant of committal will provide as follows. The sentence is 912 days in custody less 591 days of pre-sentence custody credited at 912 days, leaving a net sentence of 0. On count number three, it is the exact same sentence, concurrent. In my view, the Crown's primary position advanced today, although arguably justifiable for certain reasons does not give Mr. Mitchell the modest "Duncan credit" that I think is warranted here. I do not think that crediting the 591 real days served at 886.5 days, which is the traditional "Summers credit", I do not think that is sufficient. In this case, I think more credit is warranted for the conditions that Mr. Mitchell has experienced at the correctional facilities. I agree with the Crown that some of what is spoken about in Mr. Mitchell's affidavit is rather generic and does not really fit the definition of overly harsh conditions spoken about by the Court of Appeal in the Duncan and Marshall decisions, but other aspects of Mr. Mitchell's affidavit evidence do meet the test. Particularly, lockdowns and overbunking, and thus although it is difficult to ascertain how many of those lockdowns, how many of those days of overbunking are attributable specifically to the time that Mr. Mitchell has spent in pre-sentence custody on these two counts. I am prepared to provide the extra credit that I alluded to earlier and gross up the 591 real days to the equivalent of the sentence that is being imposed, the 912 days, leaving a net sentence of 0. Ms. Heaton has provided able submissions on behalf of Mr. Mitchell. The reason why I have decided not to accept the position advanced by the defence is really for two reasons and has nothing to do with some general unwillingness on the part of this particular Court to grant significant "Duncan credit" in the appropriate case. In fact, there are recent decisions, reported ones, where I have provided a combination of "Summers credit" and "Duncan credit" that effectively equals two for one, which is what Mr. Mitchell asked for in his affidavit at paragraph 41, where he suggests that he thinks it would be fair for his pre-sentence custody to be credited at two for one. I have done that in recent cases. I am not prepared to do that here because I think this case is different. It is different, first of all because as I indicated earlier, there is some real uncertainty in the evidence filed through no fault of Ms. Heaton, but some real uncertainty in the evidence filed, about to what degree this Court can rely on lockdowns and overbunking as "Duncan credit" for these particular charges. Put another way, it is difficult to ascertain to what degree those overly harsh conditions are attributable to pre-sentence custody on these matters. Second, perhaps even more important than that, Mr. Mitchell is different than the other offenders that this Court has given more significant "Duncan credit" to recently. Mr. Mitchell is different because he has amassed quite a sizeable number of misconducts while in pre-sentence custody. I would say an unusually large number of misconducts, even for someone who is in difficult, very difficult circumstances like the Maplehurst Correctional Complex, for example. Now, it is true that the point I made earlier about some uncertainty in the evidence about things that apply directly to pre-sentence custody on these charges, it is correct that there's another side to that coin as Ms. Heaton pointed out, and the Court should be careful about just assuming that all 21 of these misconducts for example, at Maplehurst are related to pre-sentence custody served by Mr. Mitchell on these counts. The fact is though, that 21 misconducts at Maplehurst is an unusually large number of misconducts. I have been doing this for a long time, 13 years, it is one of the largest number of misconducts I have ever seen for this period of time in pre-sentence custody. Not saying that to be mean-spirited, but to explain why that is a significant factor in my decision in not providing further "Duncan credit" to Mr. Mitchell. Not only has he had 21 misconducts at Maplehurst, he has had misconducts at other correctional facilities as well, including Toronto East. There is the aggravated assault charge that I am told Mr. Mitchell is facing. I have not ignored that, I actually place less weight on that, though, than the misconducts that I speak about because after all, Mr. Mitchell is presumed to be innocent of that count as Ms. Heaton has pointed out and he has every right to take that charge to trial. So those are the reasons why the Court has decided to give a much more modest "Duncan credit" to Mr. Mitchell and rounding up the 591 real days to the 912 days, so the net sentence is time served, and that is concurrent on both counts one and three. Is there anything that I left out or did I get anything wrong about the jointly submitted terms on the probation order, or the jointly submitted ancillary orders?
MS. GINN: Not from the Crown's perspective, Your Honour. If there are any remaining counts on the indictment that were not previously dealt with, I'd ask that they be marked withdrawn, please.
THE COURT: Ms. Heaton, did I get anything wrong about the jointly submitted aspects of the sentence? Did I leave anything out?
MS. HEATON: Not according to my notes, Your Honour, thank you.
THE COURT: The other counts on the indictment are marked withdrawn, they were not withdrawn previously, according to my endorsement at the time of the guilty pleas. The endorsement of 17 May indicates that the other counts went to the ultimate sentencing date, so counts two and four on the indictment dated 27 November 2023, those are marked withdrawn at the request of the Crown. Mr. Mitchell, I have a duty to ask you whether you understand the orders that have been made, the section 109 firearms and weapons prohibition order, the DNA order, the non-communication order.
MR. MITCHELL: What is this three years' probation? Do I report someone, like, what is that?
THE COURT: Okay, I will get to the probation order in a moment, sir. Do you understand the firearms and weapons prohibition order, the section 109 order?
MR. MITCHELL: What is it, ten years?
THE COURT: Yes.
MR. MITCHELL: Okay.
THE COURT: Do you have any questions you want to ask me about that? You must obey that order, if you do not, you could be charged with a further criminal offence. You may be sentenced to a period of jail if found guilty of that.
MR. MITCHELL: Okay.
THE COURT: The DNA order, it is normally taken by way of a blood sample, do you have any questions about that?
MR. MITCHELL: No.
THE COURT: You must comply with the authorities in providing a sample of your DNA. If you do not you could be charged with a further criminal offence and you could be sent to jail if found guilty of that. The non-communication order with the persons I mentioned, do you have any questions about that?
MR. MITCHELL: No.
THE COURT: You do have to comply with that order, sir. If you do not comply with the non-communication order, you could be charged, and you could go to jail if found guilty. Now, to get to your question, the probation order is for three years. There is no further time in custody. The probation order is for three years, and the terms are no contact or communication with the persons that I named, not any attendance within 100 metres of them or places they are known to be, no attendance at the Telus store, no weapons. Any questions about the probation order?
MR. MITCHELL: So I don't report to someone?
THE COURT: I do not think counsel asked for a reporting condition, did you?
MS. GINN: That's right, Your Honour, I apologize for interrupting. I just wanted to clarify. It's intended that it be a non-reporting probation order.
THE COURT: Yes, non-reporting. I did not say anything about reporting and it is because I did not hear anything about reporting and now it is confirmed, it is non-reporting.
MR. MITCHELL: Okay.
THE COURT: Any other questions you want to ask me about the probation order?
MR. MITCHELL: I just stay away from those people and I just — the firearms, that's it, right?
THE COURT: So stay away from those people, no contact with those people, do not go to the Telus store, and no firearms or weapons.
MR. MITCHELL: Okay.
THE COURT: You do have to obey the probation order, sir. If you do not, you could be charged with breach of probation and most often, people found guilty of beach of probation are sentenced to jail, do you understand that?
MR. MITCHELL: Yes.
THE COURT: Okay. Ms. Ginn, Ms. Heaton, anything further?
MS. GINN: Not from the Crown, thank you, Your Honour.
MS. HEATON: Nothing further from defence either.
THE COURT: Okay, I would like to thank both counsel, both Ms. Ginn and Ms. Heaton, your submissions were quite helpful and I would like to acknowledge as well the work that you and your firm did, Ms. Heaton, in putting together the materials on Caselines. Very often, in sentencing matters, we get virtually no assistance from defence counsel, nothing filed, which is not all that helpful so thank you for that.
MS. HEATON: Of course, Your Honour, thank you.
THE COURT: Okay, that is all for this matter, thank you. Good luck in the future, Mr. Mitchell. You are a very young man, sir, you have a lot of years left, you just got to get yourself out of the predicament you are in now.
MR. MITCHELL: Okay.
THE COURT: Okay, thank you, everyone.
. . .WHEREAS THIS MATTER WAS COMPLETED
Certificate of Transcript
FORM 3
ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Eric Magri, certify that this document is a true and accurate transcript of the recording of R v. Mitchell in the Superior Court of Justice held at 491 Steeles Avenue, East, Milton taken from Recording Number 1211_5_20240820_091752__10_CONLANC.dcr, which has been certified in Form 1.
September 13, 2024
Date (Electronic signature of authorized person)
3595206113
(Authorized court transcriptionist's identification number - if applicable)
Ontario, Canada
(Province of signing)
LEGEND
[sic] - Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) - Indicates preceding word has been spelled phonetically.
Transcript Ordered: August 23, 2024
Transcript Completed: August 30, 2024
Transcript Approved for Release: September 10, 2024
Ordering Party Notified: September 13, 2024
A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.