R. v. Kiteley, 2025 ONSC 1188

Delivered: Orally and Made an Exhibit on February 21, 2025
Court File No.: CR-24-6239
Heard: February 6, 2025
Released: February 21, 2025
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Ryan Kiteley, Offender

Appearances:

• George Spartinos, for the Crown
• Ken Marley, for the Offender

Decision on Sentence
Jennifer E. Bezaire

Introduction

[1] The offender, Ryan Kiteley, was convicted of the following Criminal Code, R.S.C. 1985, c. C-46 (the “Code”) offences at trial held on November 26 and 27, 2024:

• Count #1: of the lesser and included offence of theft under $5,000 on the offence of robbery contrary to s. 343(a); and
• Count #2: possession of a weapon (knife) dangerous to the public peace contrary to s. 88(1).

[2] Mr. Kiteley also pled guilty to counts 3 through 6, charges of failure to comply with probation orders contrary to s. 733.1(1) of the Code.

[3] The court had the benefit of a Pre-Sentence Report prepared in September 2023, as well as an addendum prepared following the December 6, 2024, trial decision. Counsel also provided a summary of the Crown’s position on sentence and a breakdown of Mr. Kiteley’s pre-sentence custody, which has been updated to today’s date.

[4] Imposing an appropriate sentence requires the court to balance a number of factors and apply the relevant legal principles.

[5] Sentencing has been described as one of the most difficult tasks that a trial judge must undertake. In imposing sentence, I consider the following factors.

The Circumstances of the Offences

[6] Based on the evidence heard during trial and my verdict, I rely on the following circumstances of the offences.

[7] They occurred in the early morning hours, before 5:00 a.m., at a convenience store. Mr. Kiteley stole a coffee and chocolate. While inside the store, he also pulled out a knife, held it up in front of the complainant and gestured with it towards the complainant. While doing so, he told the complainant about an incident involving his daughter and his best friend, commenting that he did not even spare his friend; he cut him with the knife. He also indicated that he throws the knife at people who run from him.

[8] The defence argues that the offences must be considered in context—Mr. Kiteley took a chocolate bar and coffee. Further, the four breaches of probation all resulted from a singular incident, not four separate incidents.

[9] The Crown acknowledges that the items stolen were small but submits that this is not a typical shoplifting case. The weapons dangerous count arose in the context of the theft and while Mr. Kiteley was subject to four probation orders. The complainant was working alone in the early morning hours and was frightened by the incident.

[10] The complainant, Mr. Bavi, declined to provide a Victim Impact Statement.

The Circumstances of the Offender

[11] Mr. Kiteley is 44 years old. He has an extensive criminal history that includes violent offences dating back to his youth. He presents with an anti-social, pro-criminal attitude, addiction and serious mental illness that contribute to his offence cycle and erratic behaviour. Even while in custody, Mr. Kiteley re-offended and was convicted of mischief, damage to property under $5,000.

[12] Mr. Kiteley has been in custody since being arrested for the offences before the court on October 1, 2023. He has spent most of his adult life incarcerated. He is typically quick to re-offend once released. The only notable gap in convictions is between 2013 and 2019, which Mr. Kiteley attributes to being on prescribed medications for his mental health and refraining from substance use.

[13] Mr. Kiteley grew up in Windsor, Ontario and was raised by supportive parents. There were no instances of abuse. He did, however, suffer significant trauma, including the loss of his brother and the death of a neighbour.

[14] Mr. Kiteley suffers from schizophrenia, schizoaffective disorder, and personality disorder – antisocial. He is currently medicated for these conditions but has a history of not consistently taking prescribed medications when not in custody.

[15] Mr. Kiteley also suffers from substance use disorder. Crystal methamphetamine has been his “drug of choice” for the past 20 years, although he has experimented with other substances. He has expressed a desire to abstain from drugs and alcohol when released, but sober living has been difficult for him. He has not been involved with addiction supports in the community because he is often quick to relapse.

[16] Mr. Kiteley has been sporadically involved with the Canadian Mental Health Association (CMHA) since in or around 2004. He is often discharged for not maintaining contact. He is currently involved with CMHA and has been visited by a CMHA worker a dozen or more times while in custody for these offences. CMHA has arranged for a psychiatrist to treat Mr. Kiteley.

[17] Once released, Mr. Kiteley plans to live with his partner in the basement of his parent’s home. Mr. Kiteley’s mother, Tracey Kiteley, participated in both pre-sentence reports. She indicates that Mr. Kiteley is welcome to live at her residence upon release and looks forward to him helping her around the house and with his father, who suffers from dementia and has physical limitations from a stroke. Mr. Kiteley previously assisted with his father’s care. Mr. Kiteley’s mother provides structure in the form of house rules and expectations. She described her relationship with Mr. Kiteley as “fine unless he is on drugs”. His parents have, however, been victims of Mr. Kiteley’s historical offences.

[18] Mr. Kiteley’s partner, Jenni-Lyn Robinson, participated in the 2023 pre-sentence report and expressed a willingness to assist and support Mr. Kiteley upon his release. Unfortunately, attempts to contact Ms. Robinson for the most recent pre-sentence report were unsuccessful.

[19] To Mr. Kiteley’s credit, he typically reports to probation as required following release. The Probation Officer noted, however, that compliance is “extremely short-lived”. He has a history of reporting under the influence during supervision sessions. He takes his prescribed medications sporadically and almost always relapses on narcotics.

[20] In the 2023 Pre-sentence Report at page 14, the Probation Officer indicated that Mr. Kiteley requires “intensive counselling services to address a multitude of areas in his life including but not limited to: healthy relationships, personal trauma, bereavement, substance abuse, anger management and clinical supports to monitor his mental health needs and medications”.

[21] Mr. Kiteley indicates he is motivated to be successful in the community and plans to surround himself with prosocial supports such as his parents and partner. He is also eager to reconnect with his children. The non-association condition that previously prevented contact expired in August 2024. He indicates he loves his children and aspires to be an active parent for them.

[22] In terms of work, Mr. Kiteley indicates he has a friend who owns a local contracting company and is willing to hire him. He did not, however, allow probation to contact his friend.

[23] Mr. Kiteley has been in custody for a total of 510 days. He used 320 of these days on sentences related to offences he committed after being arrested on October 1, 2023, leaving 190 days to be used for his sentence on the charges before this court. He is therefore entitled to credit for the time spent in pre-sentence custody or PSC on the basis of 1.5 days for each day for a total of 285 days of PSC pursuant to s. 719(3.1) of the Code.

The Position of the Parties

[24] The defence submits that one mitigating circumstance the court should consider is the time spent in pre-sentence custody. The defence submits that 285 days, with enhanced credit, is an adequate sentence in terms of the punitive component and asks that the court impose no further jail time. The need to protect society has been achieved through the pre-sentence custody.

[25] The defence also submits that Mr. Kiteley has endured family and personal trauma and suffers from psychiatric issues, resulting in an unpredictable future, but notes that he will ultimately be released. Mr. Kiteley’s plan for release is the best possible plan for a person in his circumstances. While the probation officer expressed some reservation about his plans and there is a history of domestic and family related violence, Mr. Kiteley does have the support of his parents and partner who have indicated a desire to support him in the community. He also has the support of CMHA.

[26] Finally, the defence acknowledged the need to properly protect the victim and submits that the probation order proposed by the Crown adequately addresses that factor. The defence agrees the probation order and other corollary orders proposed by the Crown are appropriate.

[27] The Crown seeks a global sentence of 660 days (22 months) as follows:

• Count #1 (theft under): 120 days less credit for 40 real days, which equates to 60 days at 1.5, leaving a further 60 days to be served in custody.
• Count #2 (weapons dangerous): 240 days less credit for 60 real days, which equates to 90 days at 1.5, leaving a further 150 days to be served in custody, consecutive.
• Count #3 to #6 (breaches of probation): 300 days (75 days for each of the four offences, consecutive) less 90 real days, which equates to 135 days at 1.5, leaving a further 165 days to be served in custody, consecutive.

[28] Of note, Mr. Kiteley was previously sentenced to 48 days, after credit for 132 days of pre-sentence custody, for his prior breach of probation offences.

[29] The Crown also seeks a three-year term of probation to follow the custodial sentence with conditions as recommended in the pre-sentence report, including:

a. Do not contact or communicate, directly or indirectly, by any means, Sandeep Bavu.
b. Do not attend within 100 meters of any residence, place of employment, place of education of Sandeep Bavu, or any place you know Sandeep Bavu to be.
c. Do not attend within 100 meters of Circle K at 2675 Lauzon Rd. in Windsor.

[30] With respect to Count #2 (weapons dangerous), the Crown seeks ancillary orders including a DNA order and a s. 109 order. Mr. Kiteley has at least one prior s. 109 Order so the Order imposed here would be for life.

[31] The Crown submits that specific deterrence is important in this case given Mr. Kiteley’s lengthy criminal record; it is necessary to separate him from society. The subject offences were committed 11 days following his prior release from custody. And, while it is positive that CMHA is involved with Mr. Kiteley, CMHA has previously been involved without success and Mr. Kiteley has been convicted of mischief while in custody on these offences.

Other Relevant Legal Principles

[32] The court is aware of the need to consider the purpose and principles of sentencing set out in s. 718 of the Code including the need to denounce unlawful conduct and the harm done to victims, to deter the offender and others and to assist in rehabilitation of the offender.

[33] Further, s. 718.1 requires that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[34] Section 718.2 mandates a court to consider the principles set out in that section in imposing sentence, including that any sentence imposed should be increased or reduced to account for any relevant aggravating or mitigating circumstances. Evidence that the offence had a significant impact on the victim, is deemed to be an aggravating circumstance.

[35] As for whether a sentence imposed for these offences ought to be concurrent or consecutive to any other sentence, I am guided by the principles outlined in R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, where the Court of Appeal considered the principle of proportionality set out in s. 718.2(c) of the Code. Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. Blair J.A. stated as follows, at para. 18:

In short, a combined sentence must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offences in question or the overall culpability of the offender. The overall length of the custodial period imposed must still relate to and reflect the variety of sentencing goals, including denunciation, deterrence (specific and general), rehabilitation, the need to separate offenders from society where necessary, and the general imperative of promoting respect for the law and the maintenance of a just, peaceful and safe society. In this regard, the authorities recognize that where the ultimate effect of the combined sentences is to deprive the offender of any hope of release or rehabilitation, the functional value of these sentencing principles meets the point of diminishing returns. [Citations omitted.]

[36] Blair J.A. went on to say at para. 23 of Johnson,

The system must be seen to be fair and rational – both to the offender and the community – and its integrity must be preserved. Just as a sentence cannot be unduly harsh and excessive, neither can it be overly lenient or unresponsive to other purposes and principles that underpin the sentencing regime – denunciation, deterrence, the promotion of a sense of responsibility in offenders and acknowledgement of harm done to victims and the community, and the protection of the public. [Citations omitted.]

The Principles Applied

[37] The court must balance the factors outlined above to impose a fit sentence which is proportionate to the gravity of the offences and the degree of responsibility of the offender.

[38] The court has considered the following mitigating circumstances in determining the appropriate sentence in this matter. Mr. Kiteley has the support of his family and partner who are positive influences, although the partner did not participate in the most recent presentence report. He also has the support of CMHA and is medicated at present which helps him control his mental health issues.

[39] The court has also considered the fact that the offences charged all relate to a single incident. This is particularly important for the breach of probation counts. While Mr. Kiteley was under four Probation Orders at the time of the offence and has been convicted of four breach of probation counts, they all arose from the same, single incident.

[40] The court has considered the aggravating circumstance that Mr. Kiteley has a lengthy criminal record, including prior convictions for similar offences. He has a long and concerning history of hostile, aggressive, unpredictable, unusual, and bizarre behaviours both in the institutional setting and in the community. He perpetually reoffends and relapses to drugs and alcohol when released from custody, with the current offences occurring 11 days following his prior release. He also committed additional offences while being detained in custody for these offences.

[41] While Mr. Kiteley is currently involved with CMHA and the court is hopeful that, with their services, he can remain sober and properly medicated, he has had the assistance of CMHA in the past without success. He also previously resided with his partner without success.

[42] I find the need for specific deterrence to protect the public to be an important factor in this case. The Probation Officer noted that Mr. Kiteley poses a risk to intimate partners, family members and the public. His conduct on October 1, 2023, ought not to be minimized as simply relating to a chocolate bar and coffee. He took these items in the early morning hours when the complainant was working alone. While doing so, he pulled out a knife and gestured with it towards the complainant, all while telling a story of violence involving the knife. His conduct frightened the complainant who understandably feared for his safety.

[43] When Mr. Kiteley addressed the court, he indicated that he has served his time and deserves to be released. He demonstrated no insight into the extent of the harm his offending behaviour had on the complainant or the inappropriateness of his conduct. While testifying at trial, he claimed that it was normal to take things from stores and return later to pay for them.

[44] While I empathize with Mr. Kiteley’s desire to hug his children and see his family, his lack of insight, lengthy criminal record, and continued offences while in custody cause me to have significant concerns for public safety.

[45] The court must consider the totality of circumstances and impose a global sentence that is not unduly harsh and excessive. In my view, the sentence suggested by the defence does not reflect the serious aggravating circumstances present in this case.

[46] I find the sentence suggested by the Crown to more appropriately reflect the circumstances present in this case but find that the breach of probation counts should run concurrently. It would be unduly harsh to impose consecutive sentences for this single incident.

[47] Accordingly, considering all these circumstances, the court has determined that the appropriate sentence in relation to the charges is a global sentence of 435 days imprisonment before reduction for appropriate credit set out as follows:

• Count #1 (theft under included in the offence of Robbery): one hundred and twenty (120) days jail;
• Count #2 (weapons dangerous): two hundred and forty (240) days jail, to run consecutively to count #1;
• Count #3 (breach of probation): seventy-five (75) days jail, to run consecutively to count #1 and 2;
• Count #4 (breach of probation): seventy-five (75) days jail, concurrent to counts #1, 2, and 3;
• Count #5 (breach of probation): seventy-five (75) days jail, concurrent to counts #1, 2, 3 and 4; and
• Count #6 (breach of probation): seventy-five (75) days jail, concurrent to counts #1, 2, 3, 4 and 5.

[48] The offender is entitled to a reduction for credit for pre-sentence custody of 190 days, enhanced at 1.5 days for each day spent in pre-sentence custody, for a total of 285 days of credit. Accordingly, after those credits, the offender will have a total remaining sentence of 150 days to serve in jail.

[49] In addition, I order that the offender be subject to a period of probation of three years following his release from jail. Consistent with R. v. Mathieu, 2008 SCC 21, the purpose of this probation order is to give the offender an opportunity to rehabilitate himself, facilitate his integration into society and to protect society. Mr. Kiteley has a history of re-offending and relapsing shortly after release into the community. If he is to have any chance of success upon his release, he will require significant supports to refrain from substance use and re-offending. Any use of non-prescribed substances is a slippery slope that will more likely than not result in relapse and re-offence.

[50] For these reasons, the following conditions are imposed for the purposes of Mr. Kiteley’s probation order, which shall run for three years, commencing immediately following his release from jail:

a. Report in person to a Probation Officer within 24 hours of your release from custody and thereafter as directed by the Probation Officer. Cooperate with your Probation Officer. Sign releases necessary to permit the Probation Officer to monitor compliance and you must provide proof of compliance with any condition of this Order to your Probation Officer upon request.
b. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the Probation Officer, including but not limited to substance abuse and psychiatric or psychological issues, and complete them to the satisfaction of the Probation Officer.
c. Attend and actively participate with CMHA, and any treatment CMHA arranges or recommends, for as long as CMHA deems it appropriate.
d. Do not contact or communicate, directly or indirectly, by any means, with Sandeep Bavu.
e. Do not attend within 100 meters of any residence, place of employment, place of education of Sandeep Bavu, or any place you know Sandeep Bavu to be.
f. Immediately leave any place Sandeep Bavu is known to be.
g. Do not attend within 100 meters of Circle K at 2675 Lauzon Road, in Windsor.
h. Live at a place approved of by the Probation Officer and not change that address without obtaining the consent of the Probation Officer in advance.

[51] There will also be the following ancillary orders with respect to Count 2, weapons dangerous, which is a secondary designated offence:

a. DNA Order with Mr. Kiteley’s DNA to be taken forthwith; and
b. s. 109 weapons prohibition imposed for life.

[52] Finally, there will be the following additional ancillary orders:

a. Forfeiture Order under s. 491 of the weapon (knife) seized;
b. Order that the sunglasses and any other items belonging to Circle K seized be returned to the subject Circle K; and
c. Order that the victim fine surcharge be waived given Mr. Kiteley remains in custody.

Jennifer E. Bezaire
Released: Delivered Orally and Made an Exhibit – February 21, 2025