COURT FILE NO.: CJ-101-555 DATE: 2024-10-31

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING S. McNaughton, Counsel for the Crown

- and -

SHANTEL MAHADAI S. Stauffer, Counsel for the Offender

HEARD: July 5, 2024

REASONS FOR SENTENCE

The Honourable Justice M. Valente

1Following a trial by jury, Shantel Mahadai, the Offender, was convicted of robbery contrary to s.344(1) of the Criminal Code of Canada (the “Code”) but was acquitted of committing a robbery while using an imitation firearm and occupying a motor vehicle in which she knew there was a firearm. It now falls to me to impose a fit sentence for the offence which the jury determined was proven beyond a reasonable doubt.

Circumstances of the Offence

2My first task is to set out the facts which are expressed or implied by the jury’s verdict, and to make my own findings of fact where the implications of the jury’s verdict are ambiguous (see: the Code, s.724(2)(b); R. v. Ferguson, 2008 SCC 6, at paras 15-19; R. v. Brown, [1991] 2 S.C.R. 518, at paras 14-15).

3At trial, the offence of robbery was admitted by the Offender based on an Agreed Statement of Facts. The Offender admitted that on February 24, 2022 a robbery occurred at the Freedom Mobile store on Elgin Street in Cambridge where a number of cell phones were stolen from Avdeep Sidhu by three robbers, and violence, or at least a threat of violence, was used to affect the stealing.

4The Offender did not commit the robbery directly, or in other words, she was not one of the three robbers who entered the Freedom Mobile store and stole the cell phones. The issue that the jury was tasked to decide was whether Ms. Mahadai participated in the commission of the offence of robbery, as an aider, or more specifically, as the driver of a vehicle who transported the robbers from Cambridge back to Mississauga from which they came earlier that day. The verdict of guilty of robbery necessarily represents a finding by the jury that Ms. Mahadai knew that the plan was to steal cell phones from the Freedom Mobile store, and that violence, or a threat of violence was going to be necessary to carry out the plan and that she intended to help the robbers commit the robbery by driving the getaway car.

5The evidence from the Agreed Statement of Facts includes that after the robbery, the robbers fled in a stolen Honda Civic before meeting with Ms. Mahadai, as the driver of an Acura SUV, and her then boyfriend, Deonte Reider, as her passenger, in a Cambridge neighbourhood. The robbers and its driver abandoned the stolen vehicle and got into the SUV driven by Ms. Mahadai who transported them to a condominium complex from which they had left that morning. At the condominium, the robbers got out of the Acura SUV and entered the lobby of the building while a male, identified as Elyon Darling, exited the building, and got into the rear passenger seat of the SUV which then proceeded to the parking lot of a different but near-by building. There, police surrounded the Acura SUV, with Ms. Mahadai as its driver, and Mr. Reider and the other male as passengers, and recovered the stolen cell phones. The clothing worn by the robbers at the time that they robbed the Freedom Mobile store was found in the rear of the Acura.

6The verdict of the jury does not expressly or implicitly resolve whether Ms. Mahadai was a part of the plan from the beginning to commit the robbery or a spur-of-the moment participant to the robbery. This is a disputed fact. The Crown submits that Ms. Mahadai was a part of the plan from the beginning and relies upon this disputed fact as an aggravating circumstance.

7To the extent that unresolved facts are relevant to the determination of sentence, I am entitled, as I referenced earlier in these Reasons for Sentence, to make findings on the basis of the evidence adduced at trial.

8Where a disputed fact is relied upon as an aggravating circumstance, the burden is on the Crown to satisfy me as the sentencing judge of its existence beyond a reasonable doubt (see: the Code s.724(3)(e), and R. v. Nouri, 2015 ONSC 116).

9There is evidence that the robbers initially intended to target the Scotiabank branch at 544 Hespeler Road in Cambridge. They entered the bank masked but reconsidered this target and chose instead to rob the cell phone store. The Defence submits that Ms. Mahadai had no knowledge of the robbery plan until the attempted robbery of the bank. The Crown, on the other hand, submits that the Offender was a party to the robbery plan well before arriving in Cambridge from Mississauga with Mr. Reider as her passenger and the robbers changing targets.

10The Crown argues that this court should find that based on the evidence, Ms. Mahadai picked up the three robbers the morning of February 24, 2022 and transported them to Cambridge. The Crown submits that after picking up the three men in Mississauga, Ms. Mahadai searched on her phone the address of the initial target for the robbery, the Scotiabank branch on Hespeler Road. It is also the position of the Crown that the evidence supports a finding that the robbers changed into the clothing that they wore for the attempted bank robbery and the robbery of the cell phone store in the presence of Ms. Mahadai. In sum, the Crown argues that the evidence points to proof beyond a reasonable doubt that Ms. Mahadai was in on the robbery plan from the beginning.

11For its part, the Defence submits that the evidence does not establish that the Offender transported the three robbers from Mississauga to Cambridge just as there is no evidence to support a finding that the robbers changed their clothes in the Offender’s presence. The Defence also argues that the evidence is clear that it was Mr. Reider who searched the bank branch address on Ms. Mahadai’s cell phone.

12I have concluded that the following, among other evidence, supports a finding that the Offender was a participant in the robbery plan from the morning of February 24, 2022 when Ms. Mahadai left Mississauga for Cambridge in the Acura SUV with Mr. Reider:

• On February 22, 2022 Ms. Mahadai and Mr. Reider agreed that the following morning she would drive him and his friend, Menace, to collect $50 that Mr. Reider had loaned to another friend. Ms. Mahadai was unable to explain why she asked Menace for gas money when it was not he who needed the ride to collect the $50 loan and nor could she explain why they did not go to collect the money as planned on the morning of February 23rd.
• On February 24, 2022 when she arrived at the Mississauga condominium to pick up her former boyfriend to collect the $50 loan, as they had once again planned to do the night before but this time without Menace, Ms. Mahadai testified that she did not ask Mr. Reider why their plans had changed once again and instead of collecting the loan, they were to travel to Cambridge to pick up Mr. Reider’s friends who were stranded there because of a broken down car. As Ms. Mahadai put it, “I did not think anything of it".
• In her examination in chief, the Offender testified that she picked up Mr. Reider from the Mississauga condominium at approximately 10:00 am and gave him her cell phone to guide them to Cambridge. Although Mr. Reider had his own cellphone with calling capacity, according to Ms. Mahadai the phone did not have data to access Apple Maps. Ms. Mahadai also testified in chief that she did not get her phone back from Mr. Reider until they arrived back at the Mississauga condominium.
• In Ms. Mahadai’s cross-examination, however: (i) She agreed that Mr. Reider’s home was searched on her cell phone at 10:18 am on February 24, 2022 but denied making the search and offered no explanation as to why the Apple Maps search was made; (ii) She further agreed that she had her cell phone at 10:23 am on the same February morning when she texted her friend Sidney, and again, at 1:05 pm when she had arrived in Cambridge and texted her friend Sabrina; and (iii) She later testified that she was mistaken as to when she gave Mr. Reider her cell phone. Ms. Mahadai changed her evidence to state that she gave it to him at approximately 11:00 am and not 10:00 am.
• When Ms. Mahadai and Mr. Reider arrived in Cambridge, they drove around for approximately 30 minutes. In that time period, they stopped and parked for some 5 to 10 minutes. Mr. Reider did not explain why they did not go directly to pick his stranded friends and Ms. Mahadai did not ask. She simply followed her boyfriend’s directions. According to the Offender, she had no reason to enquire.
• While they were driving around Cambridge’s residential neighbourhoods, Ms. Mahadai testified that Mr. Reider, but not she, made a call at 12:54 pm to a Freedom Mobile store to enquire about the purchase of a cell phone. The Offender thought nothing of the call because some months earlier her boyfriend had asked her to buy him a new cell phone. Ms. Mahadai was, however, unable to explain why Mr. Reider used her cellphone and not his own to make the call.
• When Ms. Mahadai and Mr. Reider were parked in a Cambridge residential area, the Honda Civic parked behind them and three men got into the Acura SUV. Ms. Mahadai testified that she saw the men, whom she understood to be Mr. Reider’s friends, put nothing in the rear of the vehicle. Ms. Mahadai also stated the three men did not introduce themselves and she had no interaction with any of them other to say “Hi”.
• With the three men in the rear of the vehicle and Mr. Reider still in the front passenger seat, Ms. Mahadai proceeded down the road. Without knowing where she was to go next, Ms. Mahadai could not explain why she drove away without instruction from her boyfriend whereas to this point she had been dependent on Mr. Reider for directions.
• When they arrived back at the Mississauga condominium from which Ms. Mahadai and Mr. Reider had left earlier in the day for Cambridge, Mr. Reider’s friends left the Acura and Elyon Darling got into the back passenger seat of the vehicle. Although Ms. Mahadai had not previously met Mr. Darling, there was no introduction and no conversation between she and Mr. Darling as the Offender drove to the parking lot of a nearby building.
• Finally, Ms. Mahadai testified that Mr. Darling brought with him an orange bag and a few cellphones. Mr. Darling’s actions, like the actions of Mr. Reider’s other friends, gave Ms. Mahadai no reason, however, to question what he was doing.

13After considering the evidence of Ms. Mahadai, I have concluded that I must reject it. I find it to be completely implausible. No one could be so unobservant as Ms. Mahadai described herself in evidence.

14In addition, Ms. Mahadai is not the type of person who would permit herself to be played as she suggested in her testimony. I find that she would not have agreed unquestionably to drive Mr. Reider from Mississauga to Cambridge to pick up his friends whom she did not know and to drive Mr. Reider around Cambridge without an explanation. Ms. Mahadai had previously been angry with her boyfriend for misstating the check in time for an Airbnb he had rented for them because it caused her to waste gas. It is illogical for her to then, less than a week later, agree to drive Mr. Reider around aimlessly in a strange town without an explanation. The Offender portrayed herself as naïve and unsophisticated, but she is neither.

15Furthermore, I find that Ms. Mahadai is not credible. In particular, I reject her testimony that Mr. Reider had control of her cell phone from the time they left Mississauga until their return. Her testimony is contradicted by the timestamps on her text messages. When this was pointed out to her in cross examination, the Offender changed her evidence.

16This robbery had many moving parts. The robbers not only needed to be well coordinated but they needed to move quickly. For whatever reason mid-stream, they decided not to rob the Scotiabank branch and opted instead for the Freedom Mobile store. To my mind, it would have been virtually impossible for Mr. Reider to coordinate the execution of the robbery from the passenger seat of the Acura without Ms. Mahadai’s knowledge of what was happening at all material times. A carefully planned robbery, like this one, is reliant on a getaway driver with knowledge of the plan from start to finish and any variations along the way. I find that the only logical conclusion that can be drawn from all the evidence, including the circumstantial evidence, is that the Offender knew about the robbery from the beginning and was a willing participant from the time that she picked up Mr. Reider on February 24, 2022 until the time the police surrounded the Acura with Ms. Mahadai as its driver.

Circumstances of the Offender

(a) Pre-Sentence Report

17The Offender is 23 years of age, single with no dependants. She was born and raised by parents who immigrated from Guyana. The Offender enjoyed the benefits of a middle-class upbringing. She continues to live with her parents and has a positive relationship with them as well as her brother. The Offender’s family is very supportive of her, as she is of them. Specifically, the Offender cared for her mother after surgery some two years ago and also cared for her grandfather who suffered from schizophrenia. The Offender has ended her relationship with Mr. Reider and her current small circle of friends are educated, employed, and to her knowledge, have no criminal record.

18The Offender completed high school and went on to earn a two-year diploma in social service work from a community college. Since graduating, she has worked in the social service field with the elderly and autistic children. The Offender currently works in her uncle’s trucking company, and according to her counsel, has two part-time jobs as a social service worker. The Offender is considering a bachelor’s degree in social work.

19Ms. Mahadai does not have any alcohol or drug abuse issues. Following the events that gave rise to the conviction, the Offender reported experiencing anxiety, panic attacks, and depression for which she was prescribed medication.

20Ms. Mahadai does not accept responsibility for her actions. She stated to the author of the Pre-Sentence report that she “did not participate in any robbery” and nor was she “aware that a robbery was planned”. The Offender does, however, acknowledge the trauma experienced by the Freedom Mobile store clerk, Avdeep Sidhu.

21The Offender does not have any prior convictions although in November 2022 she was granted a conditional discharge for a fraud related offence for which she complied with the conditions of her discharge without incident during her twelve months of probation.

(b) Letters of Support and Supportive Statements

22Several reference letters were filed in support of Ms. Mahadai at the sentencing hearing. The reference letters were offered by family members and co-workers alike. Generally, the Offender’s family members and co-workers describe her as kind, respectable, gentle, and compassionate. The Offender’s co-worker and friend, Jasmin Manuel-Beltran, describes her as intelligent, polite, hardworking, and diligent with a bright future in social work.

23In addition to the letters of reference, Isaac Mahadai, the Offender’s father, describes his daughter to the author of the Pre-Sentence Report as hardworking both in and out of the home. He believes that Ms. Mahadai was “at the wrong place, at the wrong time”. Finally, the Offender’s minister of some ten years, Pastor Paul Ramadeen, describes her as sincere, reliable, and conscientious. It is his belief that Ms. Mahadai will benefit from the counselling sessions she has recently undertaken with him by making positive changes to her life.

(c) The Affidavit of Shantel Mahadai

24In her affidavit, sworn July 3, 2024, Ms. Mahadai describes her experience in Vanier Centre for Women where she was incarcerated pending bail from February 24, 2022 to March 4, 2022. She states that as a small person of less than five feet and only some seventy-five pounds, she felt vulnerable and very afraid. She was locked in her cell for twenty-four hours per day and allowed out only on her sixth day of incarceration for a mere two hours. She also describes how her cell mate was an unmedicated schizophrenic who suffered from hallucinations. The Offender also states in her affidavit that her cell was extremely cold. While incarcerated, and to date, Ms. Mahadai states that suffered and continues to suffer mental breakdowns, anxiety, and depression. Following her release from the Vanier Centre for Women, Ms. Mahadai also states that for the first four months she slept only two hours a night and has been recently prescribed medication for her mental health issues.

(d) The Offender’s Statement to the Court

25In her statement to the court, Ms. Mahadai thanked her minister, Pastor Ramadeen, for his guidance, stated that she would never be before this court again and acknowledged the trauma experienced by the Freedom Mobile shop clerk, Avdeep Sidhu, as a result of the robbery. A victim impact statement was not provided to the court.

(e) Pre-Sentence Custody and Bail Conditions

26As I previously referenced, Ms. Mahadai was held in custody prior to bail being granted from February 24, 2022 to March 4, 2022 for a total of 9 days. She describes the conditions of her incarceration as harsh as I have noted earlier in these Reasons.

27The Offender has been subject to house arrest conditions since March 4, 2022. As at this date, that equates to 2 years, 7 months and 25 days or 970 days. From March 4, 2022 to January 16, 2023, these conditions included a requirement that she live at her parents’ home and remain there 24 hours per day save for medical emergencies, school or work and then, only in the company of a surety. On January 16, 2023, Ms. Mahadai’s release terms were varied on consent of the Crown to require her to remain at her parents’ home between the hours of 11:00 pm and 6:00 am unless in the presence of one of her sureties for purposes of a medical emergency, school or work. There have been no breaches of Ms. Mahadai’s bail conditions.

Position of the Parties

28The Crown submits that the Offender should be sentenced to a custodial term of 3 years plus certain ancillary orders. The Crown argues that robbery is a serious crime with a maximum sentence of life imprisonment. While the Crown concedes that sentencing ranges are broad because robbery encompasses many possible sets of circumstances, sentences lower than 2 years are rare. The Crown argues that given that the Offender was part of the robbery plan from the beginning and the carefully planned robbery could not have been executed without her assistance as the getaway driver, a 3 year period of incarceration is appropriate.

29The Defence submits regardless of whether Ms. Mahadai knowingly aided the robbery from the beginning or was a spur-of-the moment participant, an appropriate sentence is a conditional sentence of 12 months with 4 months of house arrest, 4 months of an imposed curfew and 4 final months with conditions. The Defence submits that with some 970 days of pretrial release without incident, Ms. Mahadai has proven that she will comply with court orders and will not endanger the community. The Defence further submits that the Offender is an appropriate candidate for community supervision given her strong support from her family, friends, and work colleagues.

Sentencing Principles

30Section 718 of the Criminal Code of Canada codifies the objectives of sentencing that have been long recognized in criminal law. These objectives are the protection of society and the maintenance of a just and safe society through the denunciation of unlawful conduct; deterrence both general and specific; where necessary, the separation of the offender from society; rehabilitation; reparation for harm done to victims or the community; and the promotion of a sense of responsibility in offenders and acknowledgement of harm done both to victims and to the community.

31As Gibson J. stated in R. v. G.B., 2023 ONSC 5081 (“G.B.”), at para 10, in determining a just and fit sentence, the court must consider a complexity of factors including the nature of the offence and the personal characteristics of the offender. It is the task of the sentencing judge to weigh the normative principles Parliament has enshrined in the Code along with the s.718 sentencing objectives and the stipulated fundamental principle of proportionality, the mitigating and aggravating factors, as well as the principles of totality and restraint as stated in s.718.2 (see also: R. v. M. (L.), 2008 SCC 31, at para 17; R. v. Marshall, 2021 ONCA 28).

32The severity of the sentence is dependant upon the seriousness of the consequences of the crime as well as the moral blameworthiness of the offender. As the Supreme Court makes clear in R. v. Lacasse, 2015 SCC 64, at para 12, the more serious the crime and its consequences, or the greater the offender degree of responsibility for that crime, the heavier the sentence (see also: s.718.1 of the Code and G.B., at para 12).

[33] In its later decision in R. v. Parranto, 2021 SCC 46, the Supreme Court states at para 12: Individualization is central to the proportionality assessment. Whereas the gravity of a particular offence may be relatively constant, each offence is “committed in unique circumstances by an offender with a unique profile” (at para 58) [quoting from R. v. Lacasse, 2015 SCC 64] …...The question is always whether the sentence reflects the gravity of the offence, the Offender’s degree of responsibility and the unique circumstances of each case.

34Pursuant to s.718.2, a sentence must also take into account any aggravating or mitigating circumstances relating to the offence or the offender. Section 718.2 of the Code also requires that a sentence be similar to those imposed on similar offenders in similar circumstances.

35I am also reminded of the well-established principle that should a first sentence of imprisonment be imposed, it must be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence (see; R. v. Priest, [1996] O.J. No. 3369).

36I am equally mindful that s.742.1 (a) of the Code prescribes two prerequisites for a conditional sentence. The first is that the service of the sentence must not endanger the safety of the community. The second prerequisite requires that a conditional sentence be “consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2”.

[37] Turning now to the specific offence of robbery. The maximum sentence for robbery is life imprisonment. As the Supreme Court states in R. v. Friesen, 2020 SCC 9 (“Friesen”), at para 96: Maximum sentences help determine the gravity of the offence and thus the proportionate sentence. The gravity of the offence includes both subjective gravity, namely the circumstances that surround the commission of the offence, and objective gravity. The maximum sentence the Criminal Code provided for offences determines objective gravity by indicating the “relative severity of each crime”. Maximum penalties are one of Parliament’s principal tools to determine the gravity of the offence.

38Few offences in the Code provide for the maximum sentence of life imprisonment. Objectively, robbery is a more serious offence than sexual interference, aggravated assault or reckless discharge of a firearm, all of which carry lower theoretical maximum sentences.

[39] Finally, the Supreme Court’s guidance with respect to sentencing an aider or abettor is of assistance in determining an appropriate sentence in this instance. In R. v. Hillbach, 2023 SCC 3 (“Hillbach”), at para 101, the Court states: The question of whether an offender’s role as an aider or abettor plays a mitigating factor in sentencing is highly contextual. A sentencing discount purely because a party was an aider or abettor would go against the purpose of the party liability provisions in s.21 which ensures an “individual will bear the same responsibility for the offence regardless of which particular role he or she played.

[40] And later in its decision, dealing specifically with the offence of robbery, the Court observes: Moreover, without the contribution of each party, the robbery could not be pulled off at all, a result that supports treating principles and aiders alike. (at para 103).

41In sum, I am of the view that this court must impose a sentence that appropriately denounces Ms. Mahadai’s conduct and deters others from following in her footsteps, but at the same time the sentence must not lose sight of the Offender’s potential for rehabilitation.

42Each of the Crown and Defence agree in the case of Ms. Mahadai, a term of imprisonment is warranted. Where the parties differ is whether the Offender’s imprisonment be a sentence of incarceration, or a term of imprisonment served in the community pursuant to a conditional sentence order.

Caselaw

43I have been provided with caselaw by both the Crown and the Defence with respect to an appropriate sentence to be imposed on Ms. Mahadai. I have reviewed and considered all of the cases. Although the law is clear that each case turns on its own facts, to the extent that the provided cases are similar to the case of Ms. Mahadai, they are of assistance in determining an appropriate sentence in this instance.

[44] Other than Friesen and Hillbach, the Crown referred me to the following decisions which I briefly describe: a) R. v. Patel, 2017 QCCA 1091, where the Quebec Court of Appeal quoted with approval Ruby on Sentencing, 10th Edition LexisNexis Canada, that the average sentence for robbery is two to five years. A sentence below two year’s incarceration may be imposed but only where the mitigating circumstances are particularly strong. b) R. v. McPherson, 2013 BCCA 551, in which the British Columbia Court of Appeal endorsed a sentence range of 2 to 9 years for robbery with violence. c) R. v. Nouri, 2015 ONSC 116 (“Nouri”). The offender was found guilty after trial of being a party to a robbery of a jewelry store with an imitation firearm. The offender did not commit the robbery herself but provided transportation and assisted the robbers in obtaining disguises. The offender was sentenced to six years. d) R. v. Hartwell, 2015 ONCJ 189. The offender pled guilty as a party to the robbery of an armoured car service. The robbery involved a firearm and significant violence but the offender himself did not perpetuate the violence; he provided information to the robbers so they could commit the offence. He was sentenced to 6 years. e) R. v. Dawson – Jarris, 2013 ONSC 6317. The Offender pled guilty as a party to a bank robbery. The offender was a bank employee and arranged for two robbers to attend the bank and demand money by letter. The two robbers used significant violence, but the offender did not know that was to happen. A sentence of 3.5 years was imposed.

[45] For its part, the Defence drew my attention to the following cases: (a) R. v. Shah, 2023 ABPC 180 (“Shah”). The offender pled guilty to robbery of two casino patrons in circumstances where the accused sprayed bear spray and his accomplice used a bb gun. A conditional sentence of 2 years less a day was imposed plus 12 months probation. (b) R. v. Ngabriano, 2023 ONCJ 1251. The offender pled guilty to robbery, kidnapping and use of an imitation firearm in the commission of an offence. A gun shaped plastic tool was used in the robbery. A custodial sentence of 3 months was imposed followed by 21 months to be served in the community, followed by 3 years of probation. (c) R. v. Gray, 2021 ONCJ 626 (“Gray”). The Indigenous offender pled guilty to armed robbery while wearing a disguise. The court imposed a sentence of 6 months. (d) R. v. Labrosse – Quinn, 2021 ONCJ 3775 (“Labrosse-Quinn”). The offender pled guilty to robbery and possession of stolen property. The offender was the getaway driver for two masked men who robbed a convenience store at knife point. The offender received stolen lottery tickets as payment. The offender was sentenced to 6 months with 18 months probation. (e) R. v. Ricketts, 2021 ONCJ 4096. The offender robbed a cell phone store armed with a knife. He was granted a conditional discharge with 1 year probation. (f) R. v. Lai, 2008 ONCJ 1342. The offender pled guilty to robbery. As a store employee, the offender gave the store’s security and combination safe codes to the co-accused who stole money from the store on two separate occasions. The court imposed an 18-month conditional sentence. (g) R. v. Farkas, 2004 ONCJ 3535 (“Farkas”). The accused pled guilty to robbery while armed with an offensive weapon. The victim was injured during the robbery. The offender was sentenced to a conditional sentence of 2 years less a day plus 1 year of probation.

Aggravating and Mitigating Factors

46I turn to an assessment of the facts of this case in light of the precedent caselaw, and in particular, the direction provided by the Supreme Court of Canada and the Courts of Appeal.

47The most aggravating factor is this robbery was planned and deliberate involving several individuals and extensive measures to evade detection, including the use of a stolen vehicle. It had many moving parts and I have found that as the getaway driver, Ms. Mahadai knew about the robbery from the beginning and was a willing participant from the time she picked up her former boyfriend until the time the police surrounded her vehicle later that day.

48Mitigating factors for my imposition of a sentence on the Offender include Ms. Mahadai’s age and her absence of a criminal record (see: s.730(3) of the Code). I also consider her successful compliance with the conditions of her discharge during her 12 months of probation as well as her compliance with the terms of her release order since March 4, 2022 without incident as mitigating factors. Finally, I consider the efficient manner in which the Defence conducted the trial as a mitigating factor.

49On the other hand, there is no evidence that Ms. Mahadai suffers from any addictions which in some instances has been found to reduce moral culpability. The Offender is an educated and financially secure young woman with an otherwise bright future before her. I find no obvious explanation for her decision to commit the offence for which she has been convicted.

50Ms. Mahadai continues to maintain her innocence. Insisting on her right to trial and maintaining her innocence is of course Ms. Mahadai’s absolute right and cannot be considered as an aggravating factor, but on the other hand, the Offender does not get the mitigation of a guilty plea. While at the sentencing hearing, Ms. Mahadai acknowledged the trauma experienced by the Freedom Mobile shop clerk, I view her acknowledgment as a neutral factor in my assessment of a fit sentence for the Offender.

Analysis

51I have considered the sentencing principles and purposes as stipulated in ss.718, 718.1 and 718.2 of the Code. I have also considered the prerequisites for a conditional sentence as prescribed by s.742.1 as well as the sentencing precedents in the caselaw submitted by each of the Crown and Defence along with the relevant aggravating and mitigating factors particular to this case.

52The Defence urges this court to impose a conditional sentence of 1 year. As I stated previously, s.742.1 (a) of the Code prescribes two prerequisites for a conditional sentence. Given that Ms. Mahadai has complied with her release conditions for well over 2 years without incident and her strong familial and community support, I am satisfied that the community’s safety would not be endangered in this instance. The second prerequisite stipulated in s.742.1 (a) requires that a conditional sentence must be “consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2”.

53In all of the case precedents proffered by the Defence where a conditional discharge, incarceral sentences of 6 months or conditional sentences were ordered, the accused plead guilty and in the majority of those same cases, the offender accepted responsibility for his/her conduct and was remorseful. Additionally, in Shah, the offender co-operated with the police investigation; in Gray, the offender was Indigenous and the Gladue principles were at play in crafting an appropriate sentence; in Labrosse-Quinn, the sentencing court found that the offender’s involvement in the robbery did not begin until after the two robbers returned from the robbery; and finally, in Farkas, the offender was not only a drug user, suffered from depression and was diagnosed with Tourette Syndrome but both the Crown and Defence jointly submitted a conditional sentence of 2 years less a day as an appropriate disposition.

54The facts surrounding Ms. Mahadai’s conviction do not align with those cases where a conditional sentence was ordered for robbery. Ms. Mahadai was found guilty of robbery after a trial by jury, although she was acquitted of robbery while using an imitation firearm and occupying a motor vehicle in which she knew there was a firearm. Ms. Mahadai has expressed no remorse for her actions as an active participant in the cell phone robbery. Furthermore, there is no evidence to suggest that she turned to robbery because of an addiction, mental illness, limited economic means or because she was the subject of racism or some other insidious or devastating circumstance over which she had little to no control. Throughout her life, Ms. Mahadai has benefitted and continues to benefit from a loving and supportive family which taught her the value of education and hard work. She was given all of the advantages of a loving and nurturing environment. Although Ms. Mahadai may appreciate and value these benefits today, her aiding in the robbery of the cell phone store cannot, in my view, be sanctioned with an order for a conditional sentence. Accordingly, I decline to do so. Her participation in the robbery has other consequences.

55In imposing sentence, I have considered that the principles of deterrence and denunciation are important when sentencing those who commit a robbery. I am also guided by the fundamental principles that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I am also mindful that given Ms. Mahadai’s background and prospects, she has every potential to reintegrate into society as a productive member once her custodial term is finished.

56After having considered all the relevant factors and circumstances of this case, I have concluded that considerations of denunciation and deterrence must predominate and impose a sentence of 2 years and 8 months incarceration.

57In her affidavit, the Offender described harsh conditions while in 9 days of custody. As directed by the Court of Appeal in R. v. Marshall, 2021 ONCA 344, I am prepared to consider the mitigating effect of the harsh condition of that custody and provide a reduction in the overall sentence, or in other words to provide a Duncan credit (see: R. v. Duncan, 2016 ONCA 754). Having said that, the relatively short time spent by the Offender in custody before being released on bail means that this factor has a very small mitigating effect on the appropriate sentence.

58The Defence has also raised the matter of a credit for Ms. Mahadai’s strict bail conditions. I find that her bail conditions are also to be considered as a mitigating factor. In R. v. Downes (2006), 79. O.R. (3d) 321 (C.A.) Rosenberg J.A. instructed that each case of strict bail conditions should be considered on its own merits in recognition that the effects of the terms of bail will be different in every case. In this instance, the Offender has been on bail for 970 days during which time the conditions of her bail might be described as house arrest. From March 4, 2022 to January 16, 2023, these conditions included that Ms. Mahadai live at her parents’ home and remain there 24 hours per day except for medical emergencies, school, or work and then only in the company of a surety. On January 16, 2023 these release terms were relaxed to remain at her parents’ home between 11:00 pm and 6:00 am unless in the presence of a surety for the same exceptional purposes previously stipulated.

59While I have no evidence of how the Offender’s time on bail affected her negatively, and the bail order required Ms. Mahadai to live with her parents in their home, the very same place where she had been living prior to the robbery, I am satisfied that the lengthy time Ms. Mahadai spent on bail should be reflected in the appropriate sentence. Accordingly, I am prepared to afford her a Downes credit.

60Having reached this conclusion, however, I am not prepared to afford Ms. Mahadai a combined Duncan and Downes credit of 6 months as proposed by the Defence. For its part, the Crown takes no position.

61As Smith J. comments in R. v. J.B. 2022 ONSC 5910, at para 77, that “this exercise is perhaps more art than science”, I am satisfied that the combined mitigating effect of the Duncan and Downes credit to which Ms. Mahadai is entitled, reduces the appropriate sentence from 2 years and 8 months to 2 years and 5 months.

62It is also not lost on me that the Offender had 9 days of pre-sentence custody. With the usual Summers credit of 1.5:1, that is equivalent to 13.5 days, rounded up to 14 days (see: R. v. Summers, 2014 SCC 26).

63With the application of each of these credits, the net disposition is that Ms. Mahadai is sentenced to serve 2 years, 4 months, and 17 days in a federal penitentiary.

[64] Lastly, I make the following ancillary orders all of which are requested by the Crown and are unopposed by the Defence: (a) There will be a s.109 weapons prohibition for 10 years; (b) Ms. Mahadai will supply a sample of her DNA pursuant to s.487.051 of the Code; and (c) Pursuant to s.743.21 Ms. Mahadai is prohibited from communicating, while in custody, with Deonte Reider, Elyon Darling, Teshawn Taylor-Kenton, Qunnel Larose, Haris Mohamed and Isah Danjuma.