ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
NIKO GOKOOL-CLARK
Alice Bradstreet, for the Crown
Victoria Strugurescu, for Mr. Gokool-Clark
HEARD: June 14 and September 20, 2024
REASONS FOR SENTENCE
HIMEL J.
1Niko Gokool-Clark pleaded guilty to five counts of robbery contrary to s. 343(c) of the Criminal Code, R.S.C. 1985, Chap. C-46, as amended, one count of fail to comply with a release order contrary to s. 145(5) of the Code and one count of possession of a loaded prohibited firearm while not being the holder of a licence or registration certificate contrary to s. 95(2) (a)(ii) of the Code.
2Mr. Gokool-Clark confirmed that he was entering this plea voluntarily, that he understood that the plea was an admission of the essential elements of the offences, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the plea and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence. Following the plea of guilty, I ordered that a pre-sentence report be prepared. It has now been completed and reviewed by counsel and is an exhibit at this sentencing hearing.
3Counsel made submissions to the court on sentence. The following are my reasons for sentence.
FACTUAL BACKGROUND
4The charges arise from 16 retail robberies involving Mr. Gokool-Clark and a young person. Mr. Gokool-Clark had been charged with the offence of possession of property obtained by crime over $5,000 on September 12, 2021, and was released on an undertaking. One of the conditions was to obey a curfew between the hours of 9:00 p.m. and 6:00 a.m.
5The robberies all occurred over a four-hour period of time from midnight to 4:10 a.m. on April 1, 2022, in stores located in the Regions of Halton, Peel, York and in the City of Toronto. Each of the robberies was captured on store surveillance. The motor vehicle used in each robbery was a grey Mazda 3 with a missing headlight with stolen plates attached.
6The first robbery involved Mr. Gokool-Clark and his accomplice entering the store of the Esso gas station located at 14 Plains Road East in Burlington, Ontario at approximately 12:05 a.m. The young person remained at the front door to the store while Mr. Gokool-Clark approached the cash register and asked the store clerk for change. He was told that he had to buy something before he could open the register. Mr. Gokool-Clark told the clerk, “give me the keys to the safe.” The clerk advised that he did not have the keys and only the owner did. Mr. Gokool-Clark demanded that he open the cash register and give him the cash from it as well as cigarettes. The clerk refused. Mr. Gokool-Clark had his hand in his front waistband as if he was gripping a firearm and stated, “I don’t want to hurt you”. The clerk believed that he might hurt him. The two men were in the store for 10 minutes while Mr. Gokool-Clark kept going back and forth between speaking with the clerk and the young person. He then said to the clerk, “you’re brave” and shook his hand before leaving the store. The two men entered the car and fled. The victim was not harmed.
7At 12:33 a.m., Mr. Gokool-Clark and his accomplice entered the store at the Esso gas station located at 562 Trafalgar Road in Oakville. The young person approached the counter to purchase a package of candy. Mr. Gokool-Clark was looking at the gift card rack. The young person paid the clerk $2.00. When the clerk opened the cash register, Mr. Gokool-Clark walked towards him and told him to open the till and give him the money. The two males grabbed the money and told the clerk they wanted cigarettes. The clerk said to take what they wanted. The males took the cash and the cigarettes and ran away. They did not threaten the victim although he did feel threatened. The victim did not observe any weapons.
8At 1:10 a.m., Mr. Gokool-Clark and his accomplice entered the Rabba store located at 92 Lakeshore Road East in Mississauga, Ontario. They approached the employee who was stocking shelves and demanded his cell phone. The employee complied. He told the employee not to call the police. He selected a bag of chips and placed a toonie on the counter. He told the employee he was 50 cents short. Once the employee opened the cash register, the young person went behind the counter and said, “let me see that”. The young person took $500 in cash and left the store dropping $100 by the front door. The males did not make any threats and no weapons were seen.
9At approximately 1:13 a.m., Mr. Gokool-Clark and his accomplice entered the Rabba store located at 645 Lakeshore Road East in Mississauga, Ontario. The young person approached the counter and advised that he wanted to buy a chocolate bar. Mr. Gokool-Clark went behind the counter with his right hand in his pocket and demanded money from the cash register. The employee pushed the emergency button and both males fled the store.
10Mr. Gokool-Clark and his accomplice entered the Pearson Hotel located at 240 Belfield Road in Toronto at approximately 1:35 a.m. Both males were masked and wearing gloves. They posed as customers and asked about a room. They walked around the counter and threatened the employee demanding that he open the cash register. One of them went through his pockets and took his cell phone. He was fearful and did not resist. The other male went into the office in the rear and attempted to steal a safe but could not due to its weight. Instead, he stole a car key to a shuttle vehicle which was a Honda Odyssey. Other customers entered the hotel interrupting the robbery and both males fled in the Mazda with one headlight out and damage to its rear. Both the key to the shuttle and the employee’s phone were recovered at the scene.
11At approximately 1:48 a.m., Mr. Gokool-Clark and his accomplice entered the Circle K store located at 106 Humber College Blvd. in Toronto. The males were masked and gloved. They approached the counter. The young person placed an item on the counter pretending to make a purchase. Once the register was open, Mr. Gokool-Clark went behind the counter and told the employee not to do anything and that he would not get hurt. Both males went behind the counter and took cash from the open register and cigarettes. The young person made a number of trips to their car outside to load cigarettes. Both males fled in a grey Mazda that had one headlight out and damage to its rear. In total, they took $70 in cash and a quantity of cigarettes.
12Mr. Gokool-Clark and the young person next went to the Circle K store located at 1 Thornhill Woods Drive in Vaughan, Ontario. They entered the store and approached the drink fridge. One male approached the counter and pretended to pay for an item but claimed that he was 25 cents short. Once the employee opened the cash register, the other male rushed to him, told the employee he would not hurt him and that he just wanted money and cigarettes. He told the employee that “times were tough” and that if he cooperated nothing would happen to him. The males took $300 cash, approximately 15 to 20 packs of cigarettes, change and lighters for a total value of $500. They took the phone that belonged to the store and smashed it in the parking lot.
13At approximately 2:20 a.m., Mr. Gokool-Clark and his accomplice entered the store at the Esso Gas station located at 7015 Yonge Street in Markham, Ontario. They were looking through the food items for approximately 10 minutes. Then both males jumped over the counter, told the employee that they wouldn’t hurt him and that all they wanted was money and cigarettes. They took $150 out of the two cash registers, cigarettes, vape pods and lighters. They ran northbound on Yonge Street.
14Mr. Gokool-Clark and his accomplice then went to a Petro Canada gas station store at 4641 Highway 7 in Markham, Ontario posing as customers. The young person purchased a bag of chips with cash and Mr. Gokool-Clark walked behind the counter and asked the employee to open the register and the safety deposit box. Neither could be opened. Both males left the store on foot.
15Mr. Gokool-Clark and his accomplice then went to the Circle K located at 5551 Finch Avenue East in Toronto. They posed as customers. They were wearing masks and had gloves on. They approached the cash and one of the males placed an item on the counter. When the employee opened the cash register, the second male went behind the counter and attempted to steal cash. He pushed the employee and said that if he cooperated, he would not get hurt. The males took the employee’s cell phone, stole vape bundles and destroyed a donation container before leaving. They left in a grey Mazda with one headlight out and damage to the rear. The employee’s cell phone was recovered at the scene.
16At approximately 3:30 a.m., Mr. Gokool-Clark and his accomplice entered the Esso Gas station store located at 1510 Markham Road in Toronto. They were masked and gloved. They approached the cash posing as customers. They went behind the counter and demanded cash and threatened the employee to cooperate if he did not want to get hurt. They took $306 from the cash register and some cigarettes. They demanded his wallet, but he refused. The males fled in a grey Mazda with one headlight out and damage to the rear.
17At 3:42 a.m., Mr. Gokool-Clark and his accomplice entered the store at the Esso Gas station located at 1615 Ellesmere Road in Toronto. They were wearing gloves and masks. They approached the cash, and the young person placed an item on the counter. When the employee went to process the transaction, Mr. Gokool-Clark went behind the counter and threatened the employee to step aside, or he would get hurt. He demanded that he open the cash register and he did so. The males ransacked the cigarette cupboards and stole $140 in cash. The young person took a packaged set of earbuds from the counter. The males fled in a grey Mazda with one headlight out and damage to the rear.
18Still on April 1, 2022, at approximately, 4:05 a.m., Mr. Gokool-Clark and his accomplice entered the Circle K store at 1725 Eglinton Avenue East in Toronto. They were both wearing masks and gloves. They approached the cash register, and one male told the employee, “I don’t want to hurt you.” The employee backed away. The males attempted to open the cash register, but he closed it. The males fled in a grey Mazda with one headlight out and damage to the rear.
19At approximately 4:08 a.m., Mr. Gokool-Clark and his accomplice entered the Circle K store located at 3600 Sheppard Avenue in Toronto. They were wearing masks and gloves. They walked directly behind the counter and threatened the employee to move out of the way “or else”. One male opened the cash register and removed cash. They took cigarettes with a value of $126. They took keys from the lost and found bin and later left them at the front door of the store. The males fled in a grey Mazda with a headlight out and damage to the rear.
20At approximately, 4:10 a.m., Mr. Gokool-Clark and his accomplice entered the Circle K store located at 843 Don Mills Road in Toronto. They were wearing masks and gloves. They approached the counter and told the victim to back off and stay out of their way. They opened the cash register and removed $300. They fled the store on foot.
21Members of the Toronto Police Emergency Task Force were patrolling the area attempting to locate those responsible for the string of robberies that were occurring that night. Officers observed the Mazda 3 that had been reported as being used in the robberies. They observed Mr. Gokool-Clark and his accomplice leave the Circle K store. They arrested Mr. Gokool-Clark following a foot chase. At the time of his arrest, he was found in possession of the red balaclava worn in each of the 16 robberies. He also had in his possession the key to the Mazda 3 used in these robberies. Police retraced the route of the foot chase. They deployed K9 Karma who is trained to locate firearms and ammunition. K9 Karma located a loaded .22 calibre semi-automatic pistol firearm on the path. Mr. Gokool-Clark’s DNA was discovered on this firearm. Mr. Gokool-Clark and his clothing were photographed at the station.
EVIDENCE LED AT THE SENTENCING HEARING
22Crown counsel, Ms. Bradstreet, filed photographs and a map of the locations of the robberies. Also submitted was a Victim Impact statement from one of the victims who was working late at the gas station when the robbery occurred. He said that since then, it has been hard for him to work night shifts.
23Ms. Bradstreet also submitted the criminal record of Mr. Gokool-Clark which dates back to 2018 when he was convicted of fail to comply with recognizance and carry a concealed weapon and received 18 days imprisonment with credit of 12 days of pre-sentence custody. In 2018, he was convicted of another fail to comply with recognizance and received a $100 fine. On April 26, 2019, he was convicted of fail to comply with recognizance and received a $100 fine and credit for 9 days of pre-sentence custody. On June 17, 2019, he was convicted of possession of property obtained by crime under $5,000 and fail to comply with recognizance and received one day of imprisonment and 12 months of probation in addition to 29 days of pre-sentence custody. On January 25, 2023, Mr. Gokool-Clark was convicted of possession of property obtained by crime over $5,000 and received a suspended sentence and 12 months of probation. On February 1, 2023, he was convicted of theft under $5,000 and received a suspended sentence and 18 months of probation and a restitution order of $285. On March 3, 2023, Mr. Gokool-Clark was convicted of possession of cannabis for the purpose of trafficking and was sentenced to one day in addition to 14 days in pre-sentence custody.
24Defence counsel, Ms. Strugurescu, submitted a Lockdown Summary from the Toronto South Detention Centre (TSDC) for the period April 1, 2022, until March 3, 2024 during which time there were 276 lockdowns and for the period of March 3, 2024 until June 6, 2024 during which time there were 35 lockdowns for a total of 311 lockdowns, mainly due to staffing shortages. Counsel filed an affidavit from Mr. Gokool-Clark in which he discusses the impact of harsh conditions on him. He wrote that the lockdowns are extremely stressful as the inmates are confined to their cells and can be in their cells for multiple days. They were sometimes allowed out of their cells for short periods of time to shower and/or use the phones. This makes hygiene very difficult. There are a limited number of showers on each range, and they have a brief time to use them as well as to use the phones to call family or their lawyer.
25Mr. Gokool-Clark also wrote that he has a two-year-old son and that it has been difficult for him to have regular contact with him. The lockdowns have also resulted in frustration and aggressive behaviour by the inmates. He had an anxiety attack in May 2022 and said that witnessing violence has affected his mental health. He had an injury to his hand prior to his incarceration and has remained in pain. He requested to see a specialist repeatedly but that has not occurred. Mr. Gokool-Clark also wrote that even when they are not in lockdown, the conditions are harsh as the institution is dirty, access to showers is difficult, food portions are small, and food is not properly cooked or served. He says his time at TSDC has been “horrific. Filthy, underfed and caged for prolonged periods.” He says these conditions have impacted his mental health. Defence counsel also submitted several certificates of completion of programs while Mr. Gokool-Clark has been in custody (“Changing Habits”, “Anger Management”, “the Everlasting Story”, Creative writing”), a copy of his Ontario Secondary School Diploma issued in June 2017 and letters of support.
26Mr. Gokool-Clark spoke at the sentencing hearing. He apologized to the victims of his offences, to his family and to the court. He takes full responsibility for his actions. At the time, he was experiencing a mental breakdown and was in a state of mania. He says he has had time to reflect. He wants to be a productive member of society and to support his family and be a better person.
POSITIONS OF THE PARTIES ON SENTENCE
Position of the Crown
27Crown counsel, Ms. Bradstreet submits that an appropriate sentence in this case is a global sentence of 7 years. The Crown acknowledges that Mr. Gokool-Clark has been in custody since his arrest on April 1, 2022, at the Toronto South Detention Centre and that the sentence should be with credit for pre-trial custody in accordance with R. v. Summers [2014] S.C.R. 575 at the rate of 1.5:1 for each day of custody. As of the date when submissions were made to the court, Mr. Gokool Clark had been in custody for 904 days which at 1.5:1 would equal 1,356 days of pre-sentence incarceration. With credit of 3 years and 8 months, Mr. Gokool-Clark would have just under 3.5 years of imprisonment to serve. Ms. Bradstreet also seeks a s. 109 order for 10 years and an order that a sample of his DNA be taken in accordance with s. 487.051(2) of the Code.
28Ms. Bradstreet submits that there are the following aggravating factors in this case. There were 16 different hold-ups on one evening and he was arrested during a foot chase while he discarded a loaded firearm. Although the robberies were not sophisticated, they were planned and premediated. He was with a youth accomplice at each robbery, and they used various methods to ensure the cash drawer was open, often posing as legitimate customers. They moved from west to east conducting these robberies in a similar fashion. Crown counsel says that the robberies were carried out purely for greed. Mr. Gokool-Clark had a home and was the beneficiary of a loving and supportive family. He was not in a desperate situation where resort to robbery was even remotely necessary.
29Each of the victims was vulnerable. They were alone with access to cash and other items of interest to thieves and were unable to defend themselves from anyone who chose to prey upon them. Mr. Gokool-Clark wore an intimidating disguise with a balaclava and gloves. During the last robbery, Mr. Gokool-Clark was armed with a loaded firearm and the possibility of danger was high. The Crown received only one Victim Impact Statement. The victim who wrote said that the impact upon him was significant. He found it difficult to work night shifts since the robbery and questions everyone entering the gas station at a late hour. While other Victim Impact statements were not received, Crown counsel said there is no doubt the experience was terrifying and traumatizing.
30Mr. Gokool-Clark terrorized the GTA for a number of hours. The police resources were significant, and the robberies spanned three separate jurisdictions such that police units from Halton Region, Peel Region and Toronto were involved. At the time of the robberies, Mr. Gokool-Clark was on an undertaking with a condition to obey a curfew between the hours of 9:00 p.m. to 6:00 a.m. Mr. Gokool-Clark had a criminal record of breaches and property offences.
31The mitigating factors are that Mr. Gokool-Clark pleaded guilty and he has accepted responsibility for his crimes. He has spared the victims from having to testify.
32Crown counsel submits that denunciation and deterrence are the primary objectives in order to send a clear message that behaviour like this will not be tolerated. Ms. Bradstreet argues that the appropriate sentence is one of 7 years less credit for pre-sentence custody. Each robbery is worth two years for a total of 10 years and the possession of a loaded prohibited firearm should attract a sentence of 3 years consecutive. The offence of fail to comply with a release order should attract a sentence of one year. Crown counsel asks that the sentence should be consecutive to any sentence imposed for the robberies and possession of a loaded firearm. However, because of the totality principle, Crown counsel submits that a global sentence of 7 years is appropriate.
33In reviewing the jurisprudence, Ms. Bradstreet submits that robbery of a convenience store should attract a substantial sentence. Convenience store clerks are vulnerable victims who are often alone and without any means to defend themselves: see R. v. Dodman, 2021 ONCA 543; R. v. Maliki, [2005] B.C.J. No. 2371 (B.C.C.A.) at para. 23. In R. v. Foster, 2023 O.J. No. 3943, Justice Goldstein held that a penitentiary sentence is often required for a convenience store robbery. Crown counsel says that it is rare that a robbery of a convenience store will take place without the use of a weapon, whether it is a knife, an imitation firearm, or a real firearm. A sentence for a robbery with the use of a weapon should attract a higher sentence.
34Crown counsel argues that, where the 16 robberies took place in the span of four hours and were each in a different location, with a different victim and involved some planning and premeditation before their commission, the sentences should be consecutive to each other. Ms. Bradstreet references the case of R. v. Maliki where the B.C.C.A. wrote at para.23, “To treat the appellant’s criminal conduct as a singular event would indeed allow him to commit crimes that would be, in the trial judge’s words, “cheaper by the dozen”.
35Ms. Bradstreet cites the case of R. v. Edusei, 2020 O.J. No. 5400 where Justice J. Kelly sentenced the offender for a single count of robbery of a marijuana dispensary while pointing what appeared to be a handgun at patrons in the store to 3 years of imprisonment. While he did so, two accomplices stole cash and marijuana products. Mr. Edusei was sentenced for the robbery and not for the use of the weapon, but she did consider the use of a weapon to be an aggravating factor. He had a lengthy criminal record dating back as a youthful offender.
36In summary, the Crown’s position is that each of the five robberies should attract a sentence of two years. However, in light of the totality principle, counsel argues that the appropriate sentence to be imposed for the five robberies is 4 years.
37For the possession of a loaded firearm, Crown counsel emphasizes the prevalence of gun crime in Toronto and the tremendous danger of gun violence. Ms. Bradstreet cites the decision of R. v. Thavakularatnam, 2018 ONSC 2380, [2018] O.J. No. 2038 (S.C.J.) at para. 21 where Akhtar J. described gun crime as “a cancer” in the City of Toronto. Crown counsel provided a chart of jurisprudence which suggest a sentence in the range of three years of imprisonment for the offence of possession of a loaded firearm. She argues that, although Mr. Gokool-Clark is not a first-time offender, the case law supports a three-year sentence even where there is a guilty plea and in the absence of a record for gun offences.
38In summary, Crown counsel takes the position that the crimes committed by Mr. Gokool-Clark were extremely serious. He and his accomplice terrorized people for four hours, traumatizing 16 different people working late at night alone. Remarkably, he never brandished a weapon which makes this case unique. A loaded firearm was found in the area following the police chase and it had Mr. Gokool-Clark’s fingerprint on it. She says the robberies were planned, deliberate, and carried on without regard to the harm that could result. The sentence must be a deterrent to others from engaging in such conduct and must denounce the conduct to the community. She advocates for a 7-year sentence consisting of 4 years for the robberies, 3 years consecutive for the firearm offence and one year for the fail to comply with the court order offence concurrent with the sentence imposed and with credit for pre-trial detention. Ms. Bradstreet argues that the sentence already takes into account conditions of pre-sentence custody and no further enhanced credit should be given.
Position of the Defence
39Counsel for Mr. Gokool-Clark, Ms. Strugurescu, submits that the appropriate sentence in this case is a global sentence of 5 years which would consist of 3 years for the robberies, 2 years for the possession of a loaded firearm imposed consecutive to the robbery convictions and 90 days for the fail to comply with the court order imposed concurrent to the other sentences. With respect to credit for pre-sentence custody, counsel submits that Mr. Gokool-Clark should receive enhanced credit of six months in light of the harsh conditions of incarceration. She provided lockdown records showing more than 300 lockdowns during Mr. Gokool-Clark’s incarceration and an affidavit from him. She does not oppose the ancillary orders sought by the Crown of the s. 109 order, the order for a DNA sample to be taken and the order of forfeiture of the gun.
40Ms. Strugurescu argues that the robberies were not independent, they were not planned out and they were not sophisticated. Mr. Gokool-Clark and his accomplice went on a spree on one night. In terms of mitigating factors, counsel points out that Mr. Gokool-Clark has pleaded guilty and has expressed remorse. He is 25 years old and has a 2 and ½ year old son. He has now completed high school. He grew up in a difficult neighborhood where he witnessed a murder. He was selling drugs because he was fearful of retaliation. He experienced racism and had underlying mental health problems which resulted in his admission to hospital a few times. Mr. Gokool-Clark became addicted to Xanax, oxycontin, opiates and alcohol. He is fortunate to have a supportive family.
41In the past, he worked in a warehouse and has done construction and automotive work. He volunteered at Four Villages Community Health Centre in March 2012. Since he has been in custody, he completed courses in life skills, anger management and one OCAD course at the college level in creative writing. Megan McDonald, the Director of Education in the prison wrote a letter on his behalf and described Mr. Gokool-Clark as “dedicated and capable.” Mr. Gokool-Clark is on medication in the institution for his anxiety.
42As for aggravating factors, counsel acknowledges that Mr. Gokool-Clark has a previous criminal record. She says that he was under the influence of drugs and suffering from peer pressure when the crimes were committed.
43In that he is youthful, has community and family support and that has taken steps toward his rehabilitation, counsel argues that the sentence should reflect his prospects for rehabilitation.
THE LAW
44Section 344(1)(b) of the Criminal Code provides that the offence of robbery is an indictable offence and punishable by up to life imprisonment. The sentences imposed for robbery reflect the gravity of the offence, the specific circumstance of the offence and the individual circumstances of the offender. While the sentences vary, the courts have emphasized that, “…robberies of convenience stores will attract substantial sentences and that general deterrence and denunciation play an essential role in fashioning a fit sentence: R. v. Clarke, 2014 ONCA 296, at para. 18; R. v. Superales, 2019 ONCA 792 at para. 1; and R. v. Lewis, 2009 ONCA 792 at para. 3”: see R. v. Dodman, at para. 15. In the circumstances of Dodman, the Ontario Court of Appeal upheld a sentence of 12 months of imprisonment imposed following a joint submission less credit in accordance with R. v. Downes, (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (Ont. C.A.). In R. v. Turner, the Court of Appeal upheld a sentence of 21 months for each of 5 counts of armed robbery in relation to convenience stores. The offender had a previous sentence of 6 years for 10 similar robberies and had committed the first robbery only three days after his warrant expiry date.
45In R. v. Eby, 2015 ONSC 6596, the offender robbed a convenience store, attacked the store clerk, putting his arm to the clerk’s neck and throat and said, “don’t let me hurt you.”. He stole cigarettes and cash and was found guilty following a trial. He had a lengthy criminal record and was sentenced to 3 years imprisonment less credit for pre-sentence custody. In R. v. Edusei, 2020 ONSC 7432, Kelly J. sentenced the offender who pleaded guilty to one count of robbery of a marijuana dispensary to 3 years less 9 months credit for harsh conditions arising from the COVID-19 pandemic. The offender had a lengthy record including prior robberies and was serving a sentence for two convenience store robberies committed in 2017. Justice Kelly referenced that during the robbery, Mr. Edusei brandished an item that had the appearance of a firearm. However, she noted that he had pleaded guilty to robbery simpliciter. Although no Victim Impact statement had been filed, she said at para. 24: “However, the Court can infer the impact on the victims of the robbery was significant.”
46In the case of R. v. Foster, Goldstein J. imposed a sentence of 8 years for three convenience store robberies with credit for pre-sentence custody including credit for harsh conditions of incarceration such that Mr. Foster had to serve an additional 18 months. He also imposed a long-term supervision order for 7 years. In Foster, Goldstein J. wrote at para. 22:
None of the victims provided victim impact statements. All were injured. I draw the inference that these robberies were terrifying and traumatizing to the victims. Convenience store clerks often work alone late at night. They are vulnerable and isolated. Robberies of convenience stores shake the safety and security of the community. Everyone must occasionally resort to these stores. In addition to the danger to the store clerks, average citizens are also exposed to danger when these stores are robbed.
47I now turn to the offence of possession of a loaded prohibited or restricted firearm with ammunition without being the holder of a licence or authorization. The courts have repeatedly stated that the principles of denunciation and deterrence are paramount objectives for gun-related crimes: see R. v. Danvers, 2005 CanLII 30044 (ON CA), [2005] O.J. No. 3532, 201 O.A.C. 138 at para. 77-78. The prevalence of gun violence in our community must be stopped through exemplary sentences. Justice Armstrong emphasized the plague of firearms and their profound consequences on the safety of the city and the need for exemplary sentences to deter others from arming themselves with guns. Possession of an illegal handgun is a serious offence warranting a severe penalty: see R. v. Nur, 2013 ONCA 677aff’d 2015 SCC 15, [2015] 1 S.C.R. 773. In Nur, Justice Doherty wrote at para. 206:
Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.
48In R. v. Nur, 2015 SCC 15, the Supreme Court discussed the range of three years’ imprisonment for possession of a loaded prohibited or restricted firearm in a true crime situation. McLachlin C.J. wrote at para. 82, that the three-year sentence may be appropriate: “for the vast majority of offences” under s. 95. Where the offender has the gun on his person in a public place and attempts to discard it while escaping from the police, these circumstances are aggravating factors even though there may be no evidence of other criminality: see R. v. Elliston, 2010 ONSC 6492 at para. 15, R. v. McCue, 2012 ONCA 773 at para. 15, R. v. Brown, 2010 ONCA 745 at para. 7.
49In R. v. Morris, 2021 ONCA 680, the Ontario Court of Appeal noted the risk to the public with the offence of possession of a loaded concealed firearm in a public place and how that risk increases where the gun holder flees from police and discards the weapon in a public place: at para. 68. Flight from police while in possession of a loaded handgun increases the risk of confrontation such that the weapon may be discharged deliberately or even accidently thereby posing a risk to the public and second, to the police officers who are engaged in the lawful execution of their duty: see para. 170. The Ontario Court of Appeal also stated in Morris, at para. 71, that while a three-year sentence may be appropriate for “the vast majority of offences” under s. 95, various aggravating circumstances may raise the appropriate range of sentence.
50Sentences for the offence of fail to comply with a release order contrary to s. 145(5) are often ordered to be served consecutively to any substantive offence, similar to a breach of a prohibition order, in order to demonstrate that the breach is different from the substantive offence and engages different societal interests: see R. v. Chambers, 2013 ONCA 680; R. v. Ferrigon, 2007 CanLII 16828 (ONSC) at paras. 60-66. Whether it is ordered to be imposed consecutively or concurrently may depend upon how connected the breach is to the offence for which the offender is otherwise being sentenced and whether the societal interest can still be achieved through a concurrent sentence.
DECISION
51I turn to some of the general principles of sentencing set out in section 718 of the Criminal Code. The fundamental purpose of sentencing is to ensure respect for the law and to promote a just, peaceful, and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section. They are: denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.
52A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh; the offender should not be deprived of liberty if less restrictive sanctions are appropriate; and all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, particularly Aboriginal offenders.
53I now consider the application of the law to the circumstances of this case. A proper sentence must take into account the circumstances of the offender and the circumstances of the offences. I first look at the circumstances of the offender and consider Mr. Gokool-Clark’s background which is outlined in detail in the pre-sentence report.
54Mr. Gokool-Clark is 25 years of age and was born on October 28, 1998, in Toronto. His family lived in the Swansea neighborhood which is in the western part of Toronto near High Park.
55Mr. Gokool-Clark’s parents separated when he was four years old. He has an older sister and a younger half-sister from his father’s marriage. He said that despite the separation, his childhood was happy, and he has a positive relationship with all the family members. Following his parents’ separation, he and his mother and sister moved into their grandmother’s home. He has been in a relationship with Natalie Garnica for 8 years and they have a 2 ½ year old child.
56Mr. Gokool-Clark advised the probation officer that he suffered from anxiety and had mental breakdowns during his adolescent years. His mother tried to have him admitted to hospital, but he did not stay for long. The breakdowns were affected by the use of drugs and his behaviour became violent. He also said that he witnessed violence in the neighbourhood which included the murder of a friend. He continued to use drugs and became involved in the criminal justice system to support his drug habits. He advised that he has been subject to racism while incarcerated, was often targeted by police and that he had a feeling of “hopelessness”.
57Mr. Gokool-Clark completed grade 12, received three suspensions for smoking marijuana on school property, fighting with peers and using inappropriate language towards a teacher. He attended college and studied “Fundamentals of Organizational Behaviour.” Mr. Gokool-Clark’s mother informed the probation officer that in the past, her son had a psycho-educational assessment which identified a learning disability and recommended the use of aids and supports. He also required occupational therapy, had difficulty with mathematics, spelling, written expression and visual motor skills. He described to the probation officer during the interview that he had difficulties with “focusing” and “sitting” but said that teachers helped him complete tasks. Following school, he entered a Youth Apprenticeship Program and was placed for construction craft and framing. He completed six weeks of training and worked for two months. Then he worked as a general labourer for various companies including distribution warehouses. He is currently unemployed.
58Mr. Gokool-Clark began to use marijuana at the age of 13, and increased the usage to every other day, sometimes once or twice a day. He experimented with mushrooms, Percocet, Xanax and heroin to manage anxiety. He used cocaine and drank alcohol. He said that he lacked judgment when he used these substances and that he supported his addiction through criminal behaviour. He never attended any substance use treatment programs.
59The probation officer found Mr. Gokool-Clark to be “polite and cooperative”. He seemed to drift in and out of conversation, sometimes blanking out and losing focus. His mother said he could benefit from guidance to become self-sufficient. He has a learning disability and has been bullied in the past which led to increased aggression on his part. She believes he has mental health issues and substance use problems. She described him as having psychotic episodes that led to dangerous behaviour when he began to use drugs. While his mother attempted to have him hospitalized, he would often run away. As a result of the incident when he witnessed a violent crime when he was 15 years old, he was labelled as a snitch because police were canvassing the area. The perpetrators coerced him into proving his loyalty by selling drugs. He was fearful of retaliation and was even shot at. His mother now regrets staying in the neighbourhood.
60Ms. Natalie Garnica, Mr. Gokool-Clark’s partner of 8 years, told the probation officer that he suffers from mental health issues and while he is caring and thoughtful, he can be short tempered and suffers from depression, anxiety and mood swings. He needs assistance to manage his anger and emotions and could benefit from assistance with substance use issues. Mr. Gokool-Clark’s father told the probation officer that he is a loving and caring person. He said that he helps him with computers and on-line tasks. His sister is very close to him and said that her brother was surrounded by negative influences while growing up, that he lacked confidence while in the school system but that with proper support, he has potential to change.
61Mr. Gokool-Clark’s last period of community supervision was in 2021 when he was sentenced to 1 day and 12 months of probation. Ministry records show that he reported as required, was polite and respectful when he reported and that he complied with conditions. The probation officer said that should the court order a term of community supervision; she recommended participation in counselling or rehabilitative programs for substance use and the development of life skills.
62Mr. Gokool-Clark’s partner, Natalie Garnica, who spoke with the probation officer, also wrote a letter on his behalf. In it, she described that she is his partner and has a child with him. She says he has expressed remorse for his actions, knows that he requires counselling and is working on a path to rehabilitation. She says that he is attempting to be a father to their two-year-old child. He is hardworking and talented and has plenty of skills.
63Diane Gokool, Mr. Gokool-Clark’s mother, said that her son has struggled with psycho-social and psycho-educational, issues. He was anxious when he started school. He was placed in a special needs program and received occupational and speech therapy. He experienced bullying and that included an assault where he ended up with a concussion and was hospitalized. He struggled academically and socially. She says he is a “kind, caring and protective person”. He became addicted to substances when he was 18 years old and was being destroyed mentally and emotionally. He felt threatened and had a weapon to protect himself.
64Ms. Gokool also wrote that her son aspired to be an auto-technician and spent three years working under a licensed technician when he was a teenager. He managed to graduate from high school. She says it has been difficult for him to be away from his child. He is on medication to help with his recovery, and she sees some maturity.
65Megan MacDonald, Director of the Education Program at Amadeusz wrote to confirm that Niko Gokool-Clark has participated in the program. He is registered in Business management -marketing through Centennial College. He completed a business program in December 2023 with a 95% mark. He has five more courses to complete to receive a Business Management-Marketing certificate. She describes him as “a dedicated, capable and engaged participant.” He attends regularly, completes assignments, and takes initiative.
66I now turn to the circumstances of the offences. These offences involve a string of robberies of convenience stores late at night and early in the morning involving three police forces. The victims were all vulnerable and terrorized by the actions of Mr. Gokool-Clark and his accomplice who wore masks and gloves. While only one victim wrote a brief Victim Impact statement, the consequences of being subjected to a robbery in the middle of the night cannot be underestimated.
67Following the police chase, a loaded firearm was found in the area where Mr. Gokool-Clark had been running. Mr. Gokool-Clark’s mother suggested in a letter that he was carrying the gun for self-protection. That is only “a limited mitigating factor” as discussed in R. v. Morris, at paras. 101, 165. This explanation does not diminish the dangerousness of his conduct.
68In summary, I consider the sentencing principles and the circumstances of the offender and of the offences. I consider that deterrence and denunciation are the overriding principles of sentencing in cases of this kind, but I also recognize that a sentence must take into account Mr. Gokool-Clark’s circumstances including his background and prospects for rehabilitation.
69With respect to mitigating factors, Mr. Gokool-Clark has entered guilty pleas to the charges for which he is being sentenced which demonstrates remorse. He has also expressed such remorse to the probation officer and to the court. He has saved valuable court time and assumed responsibility for his conduct. Mr. Gokool-Clark’s personal circumstances which involve mental health problems and substance abuse issues are relevant considerations. I consider Mr. Gokool-Clark’s background which included growing up in a neighbourhood where there was violence and witnessing a murder to be tantamount to personal hardship which was significant in that it contributed, in my view, to his criminality. Although there is no Enhanced Report filed in this case, the pre-sentence report and the documents submitted on Mr. Gokool-Clark’s behalf do demonstrate a personal history including the factor of anti-Black racism which is a relevant mitigating factor: see R. v. Morris, at paras. 79, 81. Even where no Enhanced Report is filed, if the evidence supports it, the court may be able to consider the circumstances of anti-Black racism in sentencing the offender. In Morris, the Ontario Court of Appeal highlighted the principles of denunciation, deterrence, protection of society and rehabilitation and the role of mitigating personal circumstances and the offender’s prospects for rehabilitation. The court took into account the matter of anti-Black racism as a relevant consideration. The court also highlighted the considerable discretion given to sentencing judges to decide how best to blend the various legitimate objectives of sentencing.
70The aggravating factors in this case are that Mr. Gokool-Clark has a criminal record which dates back to 2018 for carry concealed weapon and there are a number of possession of property obtained by crime offences and theft under $5000, as well as fail to comply with recognizance offences during the years 2018 to 2023. He was on an undertaking with a condition to obey a curfew between the hours of 9:00 p.m. and 6:00 a.m. at the time of these offences. All of the sentences previously imposed have been relatively minor. The letter written by Mr. Gokool-Clark’s mother may suggest that the reason for the possession of the gun was for self-protection. However, this factor does not diminish the seriousness of the offence. Mr. Gokool-Clark was in possession of a firearm in a public place and became involved in a situation of danger. He dropped the gun in an area where it could have been found by children. Fortunately, the police located it.
71To summarize, Mr. Gokool-Clark is only 25 years of age and was 23 years old at the time of these offences. He was abusing alcohol and drugs and suffered from mental health issues. He advises that he was in a state of mania at the time of the offences. He is now on medication for his mental health problems. He had experienced personal hardship in his background. He embarked on a night of terror with a youth as his accomplice. In so doing, he frightened multiple vulnerable victims.
72In reaching an appropriate sentence, I take into account the sentencing objectives set out in s. 718 of the Code and the circumstances of the offences and of the offender. I recognize that denunciation and deterrence are paramount sentencing principles for these offences, but that rehabilitation of the offender is also a key objective which ultimately protects society. Although there was no comprehensive psychiatric report filed in this case, there was enough evidence in the various documents that were filed to demonstrate that Mr. Gokool-Clark has mental health and substance abuse issues which require counselling and treatment.
73Mr. Gokool-Clark is very fortunate to have family and a partner who are dedicated to him and a young child who needs his support. Mr. Gokool-Clark has shown, by completing his high school degree and taking courses while in custody which are evidenced by certificates of completion that were filed with the court, that he has some potential for rehabilitation. The letters by his partner, his mother, and the Director of the Education Program at Amadeusz which supports young people who are incarcerated, demonstrate the assistance that Mr. Gokool-Clark has from family and the community.
74As indicated in the cases referenced above, the jurisprudence regarding sentences for robbery offences and possession of loaded firearms varies according to the particular circumstances of the case. Sentencing is a fact-driven process where the court must consider the unique circumstances of the offender and the offences. I recognize the difficult circumstances of Mr. Gokool-Clark’s upbringing and I take into account the impact of anti-Black racism on him. These circumstances must be considered in fashioning an appropriate sentence along with consideration of the principle of proportionality such that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In determining a fit sentence, I must also be mindful that this will be the first penitentiary sentence for Mr. Gokool-Clark. As Justice Rosenberg wrote in the case of R. v. Borde, (Q.) (2003) 2003 CanLII 4187 (ON CA), 168 O.A.C. 317 at para. 36, “The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.”
75Mr. Gokool-Clark has spent a significant amount of time in custody from his arrest on April 1, 2022, until the present date. That is a total of 938 days. In accordance with s. 719(3.1) of the Code and R. v. Summers, (2014), 2014 SCC 26, 308 C.C.C. (3d) 471 (S.C.C.), credit at the rate of 1.5:1 would equal 1,407 days.
76I now consider whether the circumstances of Mr. Gokool-Clark’s pre-sentence custody should be considered in fashioning the overall sentence. In deciding whether enhanced credit is appropriate, the court will consider the conditions of the pre-sentence incarceration and the impact of those conditions on the accused: see R. v. Duncan, at para. 6. In R. v. Marshall, 2021 ONCA 344, at paras. 50-53, Justice Doherty wrote at para. 52:
Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.
77In addition to the lockdown records filed from the Toronto South Detention Centre, Mr. Gokool-Clark submitted an affidavit which outlined the effect on him of the experience at the Toronto South Detention Centre. For the period of time from April 1, 2022, until June 6, 2024, he has been subject to 311 lockdowns which were due to staff shortages. During these lockdowns, he would be let out of the cell for a short period of time for a shower and/or a telephone call. As there were a limited number of showers and telephones, often it would have to be a choice of a shower or a phone call. Contact with his two-year-old son was difficult. He wrote that, as a result of the lockdowns, there was increased violence in the jail. Inmates were frustrated and became aggressive. This caused Mr. Gokool-Clark a great deal of stress and led to his admission to hospital due to an anxiety attack. His mental health and well-being were affected. Further, he had an injury to his hand prior to his arrest and was in pain. He asked for medical treatment but had still not seen a specialist at the time of writing his affidavit.
78Mr. Gokool-Clark described the premises as dirty, without adequate hygiene supplies, that food was insufficient and not cooked properly. I conclude that Mr. Gokool-Clark has spent some of his pre-trial custody in extremely difficult conditions through the aftermath of the COVID-19 pandemic and the subsequent staff shortages.
79There is considerable jurisprudence on the impact of harsh conditions of pre-sentence custody and courts have expressed concern about the number of lockdown days and the conditions of incarceration at the Toronto South Detention Centre in particular: see R. v. Persad, 2020 ONSC 188; R. v. Spicher, 2020 ONCJ 340 at paras. 59-68; R. v. Jama, 2021 ONSC 4871 at paras. 51, 53, 55. In R. v. Steckley, 2020 ONSC 3410, Justice Kelly gave 10 months of Duncan credit where the accused spent 132 days in lockdown with 57 days during the pandemic. In R. v. Baldwin, 2021 ONSC 7025, Maxwell J. deducted one year for harsh circumstances involving 124 days in lockdown. It seems that the circumstances of incarceration have not changed significantly despite the judicial comments that have been critical of government for allowing such harsh conditions to exist in the jail.
80I agree with counsel for Mr. Gokool-Clark that credit for pre-sentence custody should be greater than the Summers’ credit at 1.5:1. The courts have held that, “Since Marshall, courts are directed to treat harsh pre-sentence conditions as a mitigating factor to be taken into account with all mitigating and aggravating factors when determining a fit sentence”: see R. v. Menezes, 2023 ONCA 838 at para. 81. In, Marshall, Justice Doherty wrote at para. 53, “While quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence.” I conclude that attributing additional credit to recognize particularly harsh pre-sentence conditions in this case and their impact on Mr. Gokool-Clark in particular does not skew the calculation of the ultimate sentence. Accordingly, I exercise my discretion and I grant credit of 5 months for the period of harsh pre-sentence conditions and their specific impact on Mr. Gokool-Clark which has included both a significant physical and mental impact on him as he described in his affidavit. I only hope that those conditions have caused him to reflect and to not want to commit further offences and end up back in jail.
81I view that Crown counsel’s position on a global sentence of seven years is a reasonable one in light of Mr. Gokool-Clark’s criminal record and the circumstances of these offences. Mr. Gokool-Clark has pleaded guilty to five robberies of convenience stores with all of the facts agreed upon regarding the additional robberies and that he had been in possession of a loaded firearm. That there were such a number of robberies of convenience stores in one night and no weapon was used to commit them is a highly unusual situation. These peculiar circumstances should be reflected in the sentence imposed. Mr. Gokool-Clark’s background of personal hardship which includes the factor of anti-Black racism and his use of drugs while experiencing significant mental health issues must also be recognized in the sentencing process. Further, the principle of totality must be considered in arriving at an appropriate overall sentence.
82For these reasons, I am of the view that a fit sentence for the offence of robbery is 3.5 years for each count imposed on a concurrent basis. For the possession of the loaded prohibited firearm offence, the sentence is 2.5 years to be served consecutive to the robbery sentences. The sentence for fail to comply with recognizance is 6 months to be served concurrent to the possession of a loaded restricted weapon. While a consecutive sentence may be imposed for failure to comply with a court order, particularly where the breach is in relation to a curfew condition and on the relevant facts, is directly and inextricably related to the robbery and firearm offences, nonetheless, I am ordering that the 6-month sentence be imposed on a concurrent basis to reflect the principle of totality. Thus, I impose a global sentence of 6 years of imprisonment which equals 2,190 days.
83Having served 938 days of pre-sentence custody, at 1.5:1 that would be credit of 1,407 days. I exercise my discretion and in light of the number of lockdowns and the impact on Mr. Gokool-Clark, I credit him with an additional 5 months or 150 days in accordance with Duncan and Marshall. A global sentence of 6 years or 2,190 days less 1,557 days would equal a sentence of 633 days or 1 year and 8 months and 28 days remaining to be served.
84I further make an order under s. 109 prohibiting Mr. Gokool-Clark from possessing any weapon as defined by the Criminal Code for 10 years. I also order that Mr. Gokool-Clark provide a sample of his DNA pursuant to s. 487.051(3) of the Criminal Code. There will be an order of forfeiture of the gun found on the ground following Mr. Gokool-Clark’s arrest.
Himel J.
Released: October 24, 2024
