Court File and Parties
Court File No.: CR-23-70000182
Date: 2025-01-14
Ontario Superior Court of Justice
Between:
His Majesty the King
and
Jordan Dennis (Defendant)
Appearances:
Sunita Malik, for the Crown
William Caven, for the Defendant
Heard: December 12, 2024
Judge: Dineen
Introduction
[1] Mr. Dennis was charged with offences relating to the robbery of a jewellery store with a firearm, together with two co-accused named Jahsyah Thomas and Jermaine Davis. On August 12, 2024, I found him guilty of a single count of robbery on the basis of an agreed statement of facts presented by the parties. This offence carries with it a mandatory minimum sentence of five years according to s. 344(1)(a)(i) of the Criminal Code.
[2] Eight days after the robbery, Mr. Dennis was arrested in Mississauga and charged with the possession of a firearm with readily accessible ammunition. He has been in custody since his arrest. He pleaded guilty to this charge in the Ontario Court of Justice in Peel region and received an effective sentence of 30 months which he has now served.
[3] It is not contested that the gun that was the subject of the Mississauga charges is the same gun employed in the jewellery store robbery. While acknowledging that the Supreme Court of Canada has recently upheld the constitutionality of the mandatory minimum sentence in s. 344(1)(a)(i) in R. v. Hilbach, 2023 SCC 3, the defence argues that its application to Mr. Dennis in these particular circumstances would violate his rights under ss. 11(h) and 12 of the Canadian Charter of Rights and Freedoms because such a sentence will of necessity run consecutively to the sentence he has already served for what the defence argues is his continuing possession of the same handgun that triggers the application of the minimum sentence.
[4] In view of the totality principle, the Crown is not seeking any sentence greater than the mandatory minimum. This sentencing hearing accordingly turns on whether the defence has established that the imposition of the minimum sentence would violate the Charter.
The Facts of the Offence
[5] The offence in question took place around 1:00 p.m. on February 24, 2022 and was largely captured by surveillance cameras. Mr. Thomas gained admission to the jewellery store through a remotely locked security door by posing as a customer, and then produced a handgun from his waistband and pointed it at staff at the store. He demanded that the door be unlocked so that Mr. Dennis and Mr. Davis could enter, and when the staff member did not respond Mr. Thomas ordered him to the ground and unlocked the door himself.
[6] Mr. Thomas and Mr. Dennis began to gather jewellery from display cases while Mr. Davis remained by the door as a lookout. When the men fled the store, Mr. Thomas can be seen to pass the handgun to Mr. Dennis. The three men escaped in a white BMW SUV. The items stolen were worth approximately $750,000.
[7] Mr. Dennis was arrested on March 4, 2022 by the Peel police at the Marriott Residence Inn in Mississauga after bullets were found by hotel cleaning staff in a room which was reported to the police. A police officer who attended the hotel saw a handgun and ammunition thrown out the window of a room. Mr. Dennis was ultimately arrested in the room pursuant to a Feeney warrant. Evidence of the robbery was found in the hotel room and in a vehicle associated to Mr. Dennis. The gun thrown from the window resembles the gun used in the robbery. The white BMW SUV that was used as the getaway vehicle was found in the parking lot, also with evidence relevant to the robbery including a card for a pawn shop that buys gold.
History of the Proceedings
[8] Mr. Dennis faced two sets of offences. In Toronto, he was jointly charged with offences relating to the robbery with Mr. Thomas and Mr. Davis. He was also charged in Brampton with firearm offences arising from the possession of the handgun located at the Marriott. He was detained in custody.
[9] On June 29, 2023, Mr. Dennis pleaded guilty in the Ontario Court of Justice in Brampton to two offences – under s. 92(1) and s. 95(1) of the Criminal Code – involving the possession of a restricted firearm with readily accessible ammunition. The Crown sought a sentence of 4 years, while the defence submitted that a sentence of 30 months was appropriate. In advancing this submission, defence counsel relied on the fact that there was no evidence that Mr. Dennis possessed the handgun for the purpose of committing any other criminal offence. Counsel who acted for him at that proceeding observed that some persons simply believed firearms are “cool” and that there was no basis in the record to associate Mr. Dennis’s possession of this gun with other criminal activity. The sentencing judge, Falls J., was not made aware of the robbery allegations.
[10] On July 18, 2023, Falls J. delivered reasons in which he imposed the sentence proposed by the defence. In doing so, he essentially accepted the defence argument that he had no information about the purpose for which Mr. Dennis had the gun and that this supported the defence position that the sentence should be situated lower in the range. Mr. Dennis received 19 months of credit for pre-sentence custody leaving 11 months to be served.
[11] On the Toronto charges, both Mr. Thomas and Mr. Davis have pleaded guilty before other judges of this court and received the five-year mandatory minimum sentence for robbery with a firearm.
[12] Mr. Dennis brought an application to exclude evidence for breaches of s. 8 of the Canadian Charter of Rights and Freedoms. This application was argued on June 27 and 28, 2024 before Vermette J. On July 26, 2024, she delivered reasons granting this application in part but admitting some of the challenged evidence.
[13] Mr. Dennis’s trial was scheduled to proceed before me for two weeks with a jury on August 6, 2024. The defence was not prepared to proceed on that date and asked for time to consider its position. On August 12, the parties agreed to proceed by inviting me to enter a conviction on the basis of a statement of admissions in order to preserve Mr. Dennis’s ability to challenge the Charter ruling on appeal.
Mr. Dennis’s Background
[14] Mr. Dennis was 34 years old at the time of the offence and is now 37. He was born in Mississauga and grew up in Toronto. His counsel advised that his upbringing was interrupted by a period of almost two years in the care of the CAS beginning when he was nine years old after his mother went on a lengthy vacation and he and his brother were found essentially unattended. After a period of about a year in a group home and then about six months in a foster home he was eventually returned to his mother’s care. Mr. Dennis also reports that in 2005 he was shot and severely injured, requiring a wheelchair and then crutches for a period of about nine months of recovery and that this event has caused lingering psychological effects.
[15] After completing Grade 11, Mr. Dennis worked at a number of jobs including at a restaurant and most recently for his father’s cleaning company. He has also volunteered with organizations whose purpose is to keep young men away from involvement with the criminal justice system. Since his incarceration, Mr. Dennis’s father has died and the future of his cleaning company is uncertain. This has been understandably very difficult for Mr. Dennis who was unable to attend the memorial events for his father. While incarcerated he has taken several courses and received credits towards completing a high school equivalency.
[16] Mr. Dennis has four children between the ages of 9 and 14 and has been involved in a long-term relationship with the mother of three of those children who provided a letter of support describing him as a very engaged and loving father.
[17] Mr. Dennis has a significant criminal record beginning in 2007. It features many offences involving breaches of court orders and other offences against the administration of justice including obstructing a peace officer and flight from police. He also has one conviction for assault and a number of convictions for property offences involving dishonesty. Before his plea before Falls J., he had 23 convictions and 11 prior sentences of incarceration, although all were relatively short and some were nominal sentences of a single day. As defence counsel also observed, there are significant gaps in the record including a gap from 2018 to the current offence, and this increases the hopes for his rehabilitation.
[18] Mr. Dennis’s partner also described negative experiences he has encountered with the police and otherwise in the justice system including being subject to racial profiling. I take those into account in assessing his background in accordance with the principles set out in R. v. Morris, 2021 ONCA 680.
The Victim Impact
[19] The owner of the store provided a victim impact statement in which he described the lingering and devastating effects the robbery has had on him and his family. He no longer feels personally secure in public or at his workplace. As well, the gold that was stolen was on credit and uninsured and so he has suffered a financial loss of $700,000 and has been left with debts he does not know how he can repay. The new security features he has adopted at his store leave customers feeling unsafe there and this has undermined the business.
The Positions of the Parties
[20] The defence submits that imposing the mandatory minimum sentence of 5 years for robbery with a firearm found in s. 344(1)(a)(i) in the particular circumstances of this case would violate Mr. Dennis’s rights under ss. 11(h) and 12 of the Charter. Counsel argues that Mr. Dennis was in continuous possession of the gun between the robbery and his arrest in Mississauga. He has already been punished for his possession of the gun by an effective 30-month sentence that has now been served. It would amount to double punishment and be grossly excessive to impose a 5-year sentence – that would necessarily be served consecutively to the earlier sentence – in reliance on his use of that gun in the robbery. Defence counsel seeks either a constitutional exemption under s. 24(1) or an order declaring the minimum sentence of no force and effect. The defence submits that a sentence of 2-3 years is appropriate.
[21] The Crown submits that there is no basis to depart from the mandatory minimum sentence, which was very recently upheld as constitutional by the Supreme Court of Canada in Hilbach. The Crown notes that in R. v. Claros, 2019 ONCA 626, a case with distinct factual similarities to this one, the Court of Appeal held that the accused’s possession of a firearm in Thunder Bay two days after he had used it to commit offences in Hamilton was properly the subject of a separate sentence subject only to the principle of totality. The Crown submits that the total sentence that would result from the imposition of the mandatory minimum in this case is neither grossly disproportionate nor unfit.
The Aggravating and Mitigating Factors
[22] The aggravating factors in this case include the profound victim impact the robbery had, both in terms of the psychological effects and the ruinous economic impact, as well as Mr. Dennis’s prior criminal record. I also accept that the use of disguises has some aggravating impact. The fact that the handgun involved was directly brandished at the persons working in the store in a frightening way is aggravating though this factor is largely already captured by the mandatory minimum sentence that attaches to the use of a firearm in a robbery.
[23] The significant family support that Mr. Dennis has is mitigating, as are the difficulties he suffered earlier in his life that he has had to overcome. I accept that he has real prospects of rehabilitation despite his many prior convictions and the seriousness of this crime. He should be commended for working to upgrade his education and I hope that this will assist him in finding legitimate work upon his release. I would also accept that there was some saving of court time and resources from the defence’s eventual agreement to proceed by way of agreed statement of facts and this has some mitigating effect, although this decision was neither early nor a guilty plea.
Conclusions
[24] I accept that the gun seized in Mississauga was the gun used in the robbery for which I am sentencing Mr. Dennis, and that there is a relatively close factual and temporal connection between this offence and the Mississauga firearms charges. This increases the need to consider totality in imposing sentence. However, I agree with the Crown that Claros compels the conclusion that there is no s. 11(h) issue arising from the situation in which Mr. Dennis finds himself. The charge for which Falls J. sentenced him involved the possession of the gun in a different jurisdiction with corresponding danger to other persons entirely independent of the use of the gun in the robbery eight days earlier.
[25] Defence counsel notes that there are distinguishing factual circumstances between Claros and this case. While I accept that there was a greater geographical distance between the two sets of charges in that case, there was also a closer temporal connection and I do not see this fact as a decisive consideration on this issue. It also appears that the second set of charges in Claros was not laid until after the guilty plea on the first set while in this case they proceeded concurrently, but I see that as reducing any potential unfairness to Mr. Dennis and do not believe it can possibly assist the defence.
[26] I also do not agree with the defence that the Kienapple principle would apply to the firearms charges had the two sets of charges proceeded jointly. Even leaving aside the fact that the firearms charges were in a different jurisdiction where different members of the public were affected, they also include distinct legal elements not required to prove the offence under s. 344.
[27] A critical element of the s. 95 offence to which Mr. Dennis pleaded guilty in Peel region is the presence of readily accessible ammunition, an element that greatly elevates the seriousness of this offence because of the increased danger represented by loaded or readily loadable guns.
[28] The Crown has not contended that it can prove that the gun was loaded at the time of the robbery, and as Crown counsel reasonably submitted this is a significant factor underlying its position that the minimum sentence is appropriate. The presence of the ammunition is an important component of the overall seriousness of the two sets of charges considered globally but is not something that may be considered as part of the sentence I may impose. Rather, it was properly the subject of a separate sanction imposed by Falls J.
[29] I also find that a total effective sentence of 7.5 years for the two sets of charges is not grossly disproportionate and s. 12 is not engaged. I certainly do not rule out that there may be circumstances in which a mandatory minimum sentence might work an unfairness in a situation comparable to this one where it is imposed consecutively to other related charges. In this particular case I cannot say that there is unfairness to Mr. Dennis.
[30] I am bound by Hilbach in which the Supreme Court of Canada found that a five-year sentence was harsh but not grossly disproportionate for an Indigenous teenager who carried out an unsophisticated robbery of a convenience store while armed with an unloaded rifle.
[31] The circumstances here are in many important ways more aggravating. Mr. Dennis is no teenager but is a mature offender with a relatively extensive criminal record and the robbery was far more serious and had some elements of planning. It involved not only the terrorization of two employees in the store but a life-changing loss to the owner whose business and economic position may never recover. I could not possibly find that a global sentence 7.5 years for the robbery and the Mississauga firearms charges would violate s. 12 given the conclusions in Hilbach.
[32] Any potential unfairness to Mr. Dennis is also greatly attenuated by the factual basis on which he was sentenced by Falls J. Had that sentencing proceeded on the basis that the gun had been recently used in a robbery and that this was a significant aggravating factor, then the claim of unfairness may have had more substance. But his position that this charge is inextricably linked to the Mississauga charge is somewhat ironic given the defence submissions actually made at that sentencing hearing. Falls J. imposed a sentence at the low end of the range after accepting a defence argument that the gun had not been shown to be linked to any other criminal activity and that there was no proof of any criminal purpose in possessing it. The fact that these two cases were resolved entirely independently flowed in part from defence strategic decisions which gave Mr. Dennis the benefit of a lower sentence on the gun charge than he likely otherwise would have received, and indeed the very sentence sought by the defence.
[33] I conclude that considered separately, both the five-year minimum sentence for this robbery and the 30 month sentence imposed by Falls J. are comfortably within the range of appropriate sentences. Factoring in the principle of totality, while the total sentence Mr. Dennis will serve for these two sets of charges may not be an especially lenient one, I cannot say that it is unfit or excessive, let alone grossly disproportionate. To the contrary, having rejected the defence argument that the Kienapple principle would apply to both firearms charges, I find that 7.5 years would be an appropriate global sentence had the two sets of charges proceeded together and been the subject of a single sentencing before one judge.
[34] The sentences imposed on the co-accused and particularly Mr. Thomas are also instructive. Mr. Thomas was 19 years old at the time of the robbery. He had no criminal record and pleaded guilty and was found by Dunphy J. to be a “follower” as compared to the other participants. Dunphy J. characterized the five-year sentence he imposed as a “lenient” one given the seriousness of the robbery and the terrible impact it had on the victim.
[35] Mr. Dennis is much older than Mr. Thomas. I do not conclude that he was a “follower” brought into the robbery by his accomplices. He had a lengthy criminal record and did not plead guilty or express remorse as Mr. Thomas did. He is the one who maintained possession of the gun after the robbery and had readily accessible ammunition for it when arrested. I find that Mr. Dennis can only expect to receive a longer overall sentence than Mr. Thomas and that the sentence sought by the Crown here is consistent with the parity principle.
[36] For these reasons, I do not find that the mandatory minimum sentence would violate Mr. Dennis’s Charter rights and I conclude that I am required to impose it. As of today, Mr. Dennis has served 325 days in pre-sentence custody following the expiry of his prior sentence for which I credit him with 488 days leaving a total of 1337 days to be served [1]. I will also, on consent, make the ancillary orders requested by the Crown: an order for the provision of a DNA sample, a s. 109 order for life, and an order under s. 743.21 prohibiting communication with Yasim Hassan.
Dineen
Released: January 14, 2025
[1] Defence counsel sought Duncan credit for the conditions of pre-sentence custody, but only in the event that I found that the imposition of the mandatory minimum sentence would violate the Charter. Institutional records show that there were relatively few occasions of triple-bunking and lockdowns during the pre-sentence custody.