ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
ORAL CARVER LEWIS
Christine Jenkins and Alejandra Espinosa, for the Crown
Alison Craig, for the accused, Oral Carver Lewis
Paula Rochman, amicus curiae
HEARD: October 14-15, November 5, 27, 2025, and January 14, 2026
REASONS FOR DECISION ON SENTENCE AND LONG-TERM OFFENDER APPLICATION
(Subject to a publication ban that applies to any information that might identify the complainant, pursuant to section 486.5 of the Criminal Code)
VERMETTE J.
1On February 24, 2023, Oral Carver Lewis was found guilty by Justice Low1 of: (1) breaking and entering a dwelling house and committing the indictable offence of robbery therein, contrary to subsection 348(1)(b) of the Criminal Code; and (2) robbery by stealing from the complainant while armed with a knife, contrary to subsection 343(d) of the Criminal Code (“predicate offences”).
2The Crown seeks to have Mr. Lewis declared a Long-Term Offender (“LTO”) under section 753.1 of the Criminal Code in addition to any sentence he may receive.
A. EVIDENCE BEFORE THE COURT
3The evidence before me included the following:
a. The viva voce evidence of the following witnesses called by the Crown: (1) Dr. Jonathan Rootenberg, (2) Dr. John Arrowood, (4) Brad Tamcsu, Mental Health and Addictions Manager at the Ministry of the Solicitor General, and (5) Lori Pynn, Parole Officer Supervisor with Correctional Service of Canada (“CSC”).
b. Numerous exhibits, including various records regarding Mr. Lewis’ prior convictions and institutional misconducts while incarcerated, the assessment report of Dr. Rootenberg (which includes the report of Dr. Arrowood), and lockdown records of the Toronto South Detention Centre (“TSDC”) and the Toronto East Detention Centre (“TEDC”).
c. An agreed statement of facts regarding Mr. Lewis’ immigration status.
B. FACTUAL BACKGROUND
1. Predicate offences and procedural history
4The predicate offences were committed on October 28, 2020. At that time, the complainant was providing sexual services in her apartment and was advertising her services on a website.
5Justice Low found that Mr. Lewis contacted the complainant on October 27, 2020, by text message to initiate an agreement to purchase sexual services. The complainant and Mr. Lewis arranged for an appointment at 6 p.m. on that day. Mr. Lewis arrived at the complainant’s apartment shortly after 6 p.m. They had a casual conversation before engaging in sexual activity. The complainant gave a drink of rum to Mr. Lewis in a plastic tumbler and Mr. Lewis drank it. Mr. Lewis also took a drink out of the bottle of rum at some point during the appointment.
6The complainant and Mr. Lewis engaged in sexual activity, but the complainant decided to cut it short after 30 minutes because she felt uncomfortable. She refunded $70.00 to Mr. Lewis. Mr. Lewis then left and indicated that he wanted to see her again. The complainant was agreeable to this. Mr. Lewis sent an explicitly sexual and complimentary text message to the complainant at 6:50 p.m.
7At 11:10 p.m., Mr. Lewis sent another text message to the complainant stating that he wanted to engage her for another session. A series of text messages were exchanged between 11:10 and 11:20 p.m. and the complainant ultimately agreed to a 30-minute appointment at 12:30 a.m. While text messages were being exchanged, the complainant instructed Mr. Lewis not to call her. The complainant subsequently blocked Mr. Lewis on the text application that she was using after she had agreed to see him at 12:30 a.m. for 30 minutes.
8The complainant had an appointment with another client at 11:30 p.m. for one hour. However, the client decided to leave after 45 minutes. When the client got to the building door on his way out, he saw Mr. Lewis standing on the other side of the door, appearing to be occupied with his phone. When the client opened the door to exit, Mr. Lewis pushed past him and made his way through the hallway. The client noted a strong smell of alcohol coming off of Mr. Lewis and sensed something troubling in this encounter. He nevertheless made his way toward the subway station.
9The complainant heard a knock at her door very shortly after her 11:30 p.m. client had left. Thinking that the client had come back because he had left something behind, she opened her door. However, the person at the door was Mr. Lewis, the client she had seen at 6 p.m. Mr. Lewis waved some paper currency at her and she began to feel uncomfortable. She decided that she did not want to let him enter and she tried to close the door. She did not succeed as Mr. Lewis had a foot in the door and would not leave. Mr. Lewis pushed the complainant on her shoulders with both of his hands into the room, causing her back to come into contact with a piece of furniture.
10Shortly after gaining entry into the apartment, Mr. Lewis pulled from his waistband a kitchen knife with a blade that was about five inches in length. He held it point upwards and asked the complainant to tell him where the money was. The complainant was in fear for her life, and she complied as she did not want to die. Mr. Lewis robbed the complainant of between $3,000 and $4,000.
11Mr. Lewis was arrested on November 5, 2020. On November 16, 2020, he was detained on the secondary and tertiary grounds.
12As stated above, Justice Low found Mr. Lewis guilty of the predicate offences on February 24, 2023. After a contested application, Justice Low ordered an assessment under section 752.1 of the Criminal Code. Dr. Jonathan Rootenberg conducted the assessment and prepared a report, which is dated January 24, 2024. Pursuant to subsection 754(1)(a) of the Criminal Code, the Attorney General provided his consent to seek to have Mr. Lewis declared a LTO on April 8, 2024.
13In late May 2024, Mr. Lewis discharged his counsel and advised this Court that he would represent himself. Mr. Lewis reiterated his intention to represent himself at attendances in June, July and September, 2024, despite this Court urging him to retain counsel. Given Mr. Lewis’ position, amicus curiae, who had been appointed earlier in the proceeding, became involved in this matter again. The hearing of the application was scheduled to start on October 21, 2024. The Friday before (on October 18, 2024), this Court was advised that Mr. Lewis had reached out to counsel, and that a Rowbotham application could be required. As a result, the application was adjourned. The hearing was ultimately rescheduled to March 18, 2025.
14In February 2025, the Court was advised that the issues had been significantly narrowed, and that no oral evidence would be required. On March 18, 2025, i.e., the day on which the hearing of the application was scheduled to start, the Court was advised that Mr. Lewis had instructed his lawyer to retain a defence expert. As a result, the hearing of the application was adjourned again to October 14, 2025, on a “with or without counsel” basis. It was made clear that amicus curiae would remain involved.
15Ultimately, the matter did proceed on October 14, 2025. The defence did not call any expert evidence.
2. Mr. Lewis’ personal circumstances
16Mr. Lewis is 50 years old. He was born and raised on the Caribbean island of St. Vincent and the Grenadines (“St. Vincent”). Mr. Lewis’ father and mother were never married. His mother was fifteen or sixteen years old when he was born. She does not have any other children. His father was employed as a truck driver. He has 23 children. Mr. Lewis is the second oldest. Mr. Lewis grew up in a house with several cousins, but not with any of his brothers and sisters. He saw his father “here and there” and lived with him on two occasions for a few months at a time.
17Mr. Lewis’ mother came to Canada in 2003. Mr. Lewis’ father resides in St. Vincent with his girlfriend. All of Mr. Lewis’ siblings also reside in St. Vincent, except one brother who lives in the United States and one sister who lives in Montreal. Mr. Lewis came to Canada in December 2008, at the age of 33, originally to visit his mother. In 2009, Mr. Lewis made a refugee claim, which was ultimately accepted in 2010. In his application, he stated that he was gay, but he denies being gay and states that he claimed being gay in order to stay in Canada.
18Mr. Lewis left school when he was about 12 years old as he no longer wanted to attend school. He never did well academically. He never returned to school for any upgrading occupational training, but he attended a literacy program at night for several months in Canada. Mr. Lewis believes that his reading and writing skills are deficient.
19In St. Vincent, Mr. Lewis worked at a flour mill and at a brewery, as well as in construction. He was also employed as a tour guide and sold goods to tourists. In Canada, he worked at a chicken processing factory from December 2008 to April 2009, when he was arrested for working without a permit. Mr. Lewis later joined an employment agency where he had a variety of jobs, including in the construction sector and at a waste management company. In the couple of years leading to his incarceration in late 2020, Mr. Lewis alternated between roofing, renovating and waterproofing work, and working as an arborist’s assistant. Mr. Lewis has worked consistently throughout his time in Canada and has had minimal periods of unemployment. He has also periodically sold marijuana in the past.
20Mr. Lewis has three children: two daughters in St. Vincent (from two different relationships) who are 17 years old, and one daughter in Toronto who is 16 years old. Mr. Lewis has never been married. He has lived with two common-law partners. He lived with Amanda Hurley, the mother of his 16-year-old daughter, from April 2019 until sometime in 2011, and with another woman from 2012 to 2014 or 2015. He has not lived with a romantic partner since 2015, but he had at least one romantic relationship during that time with Jennifer Adams. Mr. Lewis said that he met Ms. Adams in February 2020 and they dated for an unspecified period.2 Ms. Adams has three children of her own.
21Mr. Lewis has been to massage parlours on many occasions.
22According to Mr. Lewis, he has not had mental health issues in the past, and alcohol consumption has never been a problem for him. Mr. Lewis denies that any of his legal charges resulted from excessive alcohol consumption. He quit smoking cigarettes and marijuana in February 2022. He used cocaine on one occasion when he was 19 years old, but he never used it again as he did not like how it made him feel. Mr. Lewis denies ever using other drugs.
23Mr. Lewis reported that once, when he was released on bail, the Justice asked him to go for an assessment at the Centre for Addiction and Mental Health for possible alcohol-related problem. However, Mr. Lewis did not feel the need to attend for such an assessment as he firmly denied being addicted to alcohol.
24Mr. Lewis also reported attending an anger management/Partner Assault Response (PAR) program in the community. He never completed the program. He said that the meetings were held quite a distance away from his residence, which made it difficult for him to attend.
25Mr. Lewis has been incarcerated since November 6, 2020 (after his arrest on November 5, 2020). While in custody, he has attended three core life skills education sessions on setting up a budget, goal setting and anger management. Each session was one hour in duration.
26Mr. Lewis has a very close relationship with his mother and he is very respectful towards her. Mr. Lewis plans to live with her if he is released. She has a number of health issues and he would help her to manage her home if he lives with her.
27Mr. Lewis last saw his father in December 2008, and he last spoke to him before going into custody in November 2020.
3. Criminal history
28The following is a summary of Mr. Lewis’ convictions:
| Date of offence | Offence | Date of sentence | Sentence |
|---|---|---|---|
| September 7, 2012 | Fail to attend court | December 21, 2012 | 1 day (6 days of pre-sentence custody) |
| January 14, 2012 | Utter a threat to cause bodily harm (to Amanda Hurley) | December 21, 2012 | Conditional discharge 12-month probation Weapons prohibition (5 years) |
| October 10 and 26, 2012 | Assault (on Amanda Hurley) Mischief under $5,000 Unlawfully at large |
January 3, 2023 | Suspended sentence (53 days of pre-sentence custody) 18-month probation Weapons prohibition (5 years) |
| March 10, 2013 | Driving while ability impaired | September 3, 2013 | $1,000 fine 1-year driving prohibition |
| August 30 and November 21, 2015 | Mischief under $5,000 Assault with a weapon (on a security guard with a knife) |
August 28, 2018 | Suspended sentence (30 days of pre-sentence custody – credit for 45 days) 18-month probation Weapons prohibition (5 years) |
| January 26, 2017 | Possession of a weapon for a purpose dangerous to the public pace (air pistol) Utter a threat to cause death (to an unknown person) |
December 19, 2018 | 1 day (four months of pre-sentence custody – credit for six months) Weapons prohibition for life |
| January 15, 2017 | Utter a threat to cause death (to Jamee Lariviere) | January 3, 2019 | Suspended sentence (10.5 weeks of pre-sentence custody – credit for 4 months) 18-month probation Weapons prohibition for 10 years |
| January 26, 2017 | Armed robbery Forcible confinement Possession of a weapon for the purpose of committing an offence (machete) |
March 20, 2019 | 8.5 months (approx. 18.3 months of pre-sentence custody – credit for 27.5 months) Weapons prohibition for life |
| January 30, 2017 | Assault using an imitation firearm Fail to comply with recognizance |
September 23, 2019 | 61 days (credit for 122 days) Weapons prohibition for life |
| October 28, 2020 | Break and enter Armed robbery (knife) |
Predicate offences | |
| January 10, 2022 February 17, 2023 Note: These two convictions, which occurred after the date of the predicate offences, are relied upon by the Crown for the limited purpose of assessing character and rehabilitative potential as a mitigating factor. |
Utter a threat to cause death (to a female Crown attorney) Possession of a weapon for a purpose dangerous to the public peace (shank) |
June 28, 2023 | Suspended sentence (6 months of pre-sentence custody – credit for 9 months) 3-year probation |
29I note the following with respect to Mr. Lewis’ convictions:
a. The January 14, 2012 threat to cause bodily harm was made against Mr. Lewis’ ex-intimate partner, Amanda Hurley, who is the mother of one of his daughters. Mr. Lewis admitted telling her on the phone that he was going to slice up her face in front of her daughter when she was walking her to school.
b. The October 10, 2012 assault and mischief were against Ms. Hurley. The circumstances involved Mr. Lewis going to her home early in the morning while smelling of alcohol, and smashing furniture.
c. The November 21, 2015 assault with a weapon involved Mr. Lewis brandishing a knife, waiving it around at security guards, and threatening one security guard to stab him if he came near him.
d. The January 15, 2017 threat to cause death was made to a woman with whom Mr. Lewis was in a new relationship. He sent text messages to her that stated: “You want me to put my gun in your mouth and fuck you in your ass? Tell me, yo.”
e. The January 26, 2017 armed robbery and forcible confinement occurred in a massage parlour with a machete. The victim was a sex worker.
f. The January 30, 2017 assault using an imitation firearm also occurred in a massage parlour and the victims included sex workers.
g. The January 10, 2022 threat to cause death was made against a female Crown attorney while Mr. Lewis was before the Court by video. At a previous attendance on November 19, 2021, Mr. Lewis made vulgar and offensive comments to the same Crown attorney and to the Court, and he pulled down his pants to expose himself. On January 10, 2022, he again made multiple vulgar and offensive comments to the Crown attorney and the Court. He also said: “You bitch, I’m going to kill you. You watch, I’m going to fucking kill you. […] When I get out of jail, I’m going to kill you, Crown. I’m going to find you and kill you. I’m going to kill you the fuck.” Mr. Lewis repeated that he would kill the Crown attorney (with additional vulgar language) at least three other times before he was removed by officers at the jail.3
h. The February 17, 2023 possession of a weapon for a purpose dangerous to the public peace occurred at the TSDC. During an altercation in which he was not involved, Mr. Lewis reached into his waist area inside his clothing and retrieved a metal shank. He was seen on video with this shank in his hand. He dropped it to the ground and concealed it under a chair in the day room area.
4. Correctional history
30Since 2017, Mr. Lewis has been found guilty of at least 23 misconducts while incarcerated. The following provides a summary:
| Institution | Misconduct | Date misconduct was committed |
|---|---|---|
| TSDC | Commits/threatens assault (staff) | October 30, 2017 |
| TSDC | Wilfully disobeys a lawful order of an officer | January 17, 2018 |
| TSDC | Commits/threatens assault (on other) | February 13, 2018 |
| TSDC | Commits/threatens assault (staff) | February 20, 2018 |
| TSDC | Commits/threatens assault (staff) | June 12, 2018 |
| TSDC | Commits/threatens assault (on other) | August 5, 2018 |
| TSDC | Wilfully disobeys a lawful order of an officer | November 14, 2018 |
| TSDC | Wilfully disobeys a lawful order of an officer | March 5, 2019 |
| TSDC | Commits/threatens assault (on other) | March 29, 2019 |
| TSDC | Wilfully disobeys a lawful order of an officer | July 2, 2019 |
| TSDC | Damages property | July 23, 2019 |
| TSDC | Possession of contraband (a pill and sharpened plastic) | February 24, 2021 |
| TSDC | Commits/threatens assault (on other) | July 20, 2021 |
| TSDC | Commits/threatens assault (on other) | January 10, 2022 |
| TSDC | Possession of contraband (shank) | November 16, 2022 |
| TSDC | Commits/threatens assault (on other) | May 15, 2023 |
| TSDC | Damages property | May 17, 2023 |
| Elgin-Middlesex Detention Centre | Causes disturbance | June 14, 2023 |
| TSDC | Tampering with fire suppression system | July 7, 2023 |
| TEDC | Damages property | November 23, 2023 |
| TEDC | Causes disturbance | January 13, 2024 |
| TSDC | Commits/threatens assault (staff) | January 28, 2024 |
| TSDC | Commits/threatens assault (staff) | September 20, 2024 |
5. Pre-sentence custody
31Mr. Lewis has been in jail since November 5, 2020, i.e., for five years and 85 days (1,911 days). In June 2023, he was convicted of two offences where six months of real time (183 days) was noted. As a result, Mr. Lewis’ remaining “real time” is 1,728 days, i.e., four years, eight months and 25 days. If credit at a rate of 1.5 days were to be given, this would amount to 2,592 days, i.e., seven years, one month and six days.
32Mr. Lewis was at the TSDC from November 6, 2020 to May 20, 2023; at the Elgin-Middlesex Detention Centre from May 20 to June 14, 2023; at the TSDC from June 15 to July 12, 2023; at the TEDC from July 12, 2023 to January 17, 2024; and at the TSDC from January 17, 2024 to today.
33“Lockdown records” received from the TSDC and the TEDC were marked as an exhibit. However, the period covered by the records received from the TSDC only starts on November 19, 2021, more than a year after Mr. Lewis’ arrest. Based on these records, between November 19, 2021 and November 26, 2025, Mr. Lewis was “triple bunked” for 35 days. There were 396 days where there were lockdowns, including 76 full lockdowns. The time at which the various lockdowns ended is most of the time not indicated in the records. However, based on the available information, at least 112 of the lockdowns were 2.5 hours or less.
34While Mr. Lewis was incarcerated at the TEDC from July 12, 2023 to January 16, 2024, he was housed alone in the “Supportive Care/Stabilization Unit” due to his behaviour. In this unit, attempts are made to let the inmates out of their cells for a minimum of two hours a day to provide access to various things. A day during which the inmates in this unit did not receive the minimum two hours out of their cell is designated as a “lockdown day”. Mr. Lewis did not receive the full two hours out of his cell on 45 occasions.
35Before his current incarceration, Mr. Lewis’ prior period of incarceration ended on November 2, 2019. He was arrested for the predicate offences a year later, on November 5, 2020.
6. Mr. Lewis’ immigration status
36Mr. Lewis’ current immigration status in Canada is that of a “protected person”. In October 2019, a deportation order was issued. However, Mr. Lewis cannot be removed from Canada absent a Danger Opinion from the Minister of Citizenship and Immigration, pursuant to section 115 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). The Canada Border Services Agency (“CBSA”) has requested a Danger Opinion from the Minister of Citizenship and Immigration, which is pending.
37Mr. Lewis is the subject of an immigration hold to remain in-custody that will take effect at the end of his criminal charge/sentence. He would then be entitled to regular detention reviews as per the IRPA.
38If a Danger Opinion is issued against Mr. Lewis, his Removal Order (i.e., deportation) will be enforceable. It is CBSA’s present intention to proceed with his deportation to St. Vincent if a Danger Opinion is issued. Mr. Lewis may request a judicial review of the Danger Opinion.
39Mr. Lewis can be deported if he is subject to a long-term supervision order (“LTSO”). If a Danger Opinion is issued against Mr. Lewis and there are no other impediments to his removal, the approximate timeline for removal would be four to five weeks.
7. Victim input
40The complainant declined to give a victim impact statement, but she provided the following statement:
It is too much at this point to think about. It has been going on for too long. It is something I’ve left behind and I’m just waiting for it to be over. I trust that everything will work out to keep me safe. I live in constant fear all the time, so I try not to think about it or dwell on it. I am trying to move on and move forward.
8. Evidence of Dr. Jonathan Rootenberg
41Dr. Rootenberg is a psychiatrist with a specialty in forensic psychiatry. He assessed Mr. Lewis from a psychiatric perspective pursuant to the assessment order made by Justice Low under section 752.1 of the Criminal Code. At the hearing, Dr. Rootenberg was qualified as an expert in risk assessment and risk management in the community.
42Dr. Rootenberg interviewed Mr. Lewis on three different occasions for a total of 9.5 hours. He also obtained information from Mr. Lewis’ mother, one female friend (Jennifer Adams), and two male friends who are also occasional employers of Mr. Lewis.
43Mr. Lewis’ friends stated that Mr. Lewis has a good work ethic and is reliable. One of his friends said that he had work for Mr. Lewis as soon as he was released, doing roofing in the summer and renovations and waterproofing in the winter. Both of Mr. Lewis’ male friends described him as easygoing and having a good sense of humour. They never observed him having anger management issues or alcohol or substance use difficulties.
44Mr. Lewis’ female friend, Jennifer Adams, said that she dated Mr. Lewis for approximately six months in 2018. They maintained a good friendship. She stated that Mr. Lewis was never angry or physically aggressive towards her. She described him as very caring, loving and generous. When she spent time with him, he was not using substances. While they did consume alcohol, it was never to the point that he was intoxicated.
45Mr. Lewis attributes his legal problems to the poor choices that he made in the past. He expressed remorse to Dr. Rootenberg with respect to the offences that he acknowledges having committed. However, Mr. Lewis denies being involved in several of the offences for which he was convicted, including the predicate offences. Mr. Lewis said that he pled guilty to some offences in order to move the process along and not because he was accepting responsibility for his behaviour.
46According to Mr. Lewis, alcohol consumption has never impacted adversely on his mood and behaviour in the past. He denies that alcohol consumption has ever been linked to his previous offences.
47I pause here to note that Mr. Lewis has made contradictory statements to the Court in the past on this point. Among other things:
a. On August 28, 2018, Mr. Lewis advised Justice Grinberg that he had an alcohol problem and that he got into problems when he drank.
b. In 2019, after pleading guilty to a number of offences, Mr. Lewis advised Justice Corrick that he had been using crystal meth since 2015 and that he had an alcohol problem.
48Mr. Lewis said to Dr. Rootenberg: “When I get out this time, I want to get on with my life.” He acknowledged that he has to comply with the law. Mr. Lewis indicated his willingness to accept any recommendations for treatment and supervision that the Court may impose, even in areas that he does not view as problematic such as anger management programs and substance use assessment and treatment.
49Dr. Rootenberg diagnosed Mr. Lewis with: (1) alcohol use disorder (in remission in a controlled setting); and (2) prominent antisocial personality traits and likely antisocial personality disorder. Dr. Rootenberg’s opinion is that the alcohol use disorder is moderate in terms of severity. While Dr. Rootenberg is of the view that Mr. Lewis has strong antisocial personality traits, he could not formally diagnose him with antisocial personality disorder because he did not have sufficient evidence to indicate that Mr. Lewis had a conduct disorder prior to the age of 15, which is a formal criterion.
50Mr. Lewis was scored on the Psychopathy Checklist-Revised (“PCL-R”). The PCL-R consists of 20 items which may be scored 0, 1 or 2, thus rendering scores on a continuum ranging from 0 to 40. The general, non-criminal population score is around 7 points. An individual is deemed to be psychopathic when a PCL-R score is 30 or above. Mr. Lewis received a PCL-R score of 19 out of 40. According to Dr. Rootenberg, this score is around or perhaps slightly below the average score of a person in jail. During his cross-examination, Dr. Rootenberg agreed that Mr. Lewis’ score is quite low relative to what one generally sees in a long-term offender or dangerous offender case.
51Mr. Lewis was also scored on the Violent Risk Appraisal Guide (“VRAG”). The VRAG scores place individuals into risk categories or “bins”. Bins 1-3 are low risk categories, bins 4-6 are moderate to medium risk categories, and bins 7-9 are high risk categories. Mr. Lewis’ raw score on the VRAG was +10. That score places him in bin 6, which is at the higher end of the medium risk category. Among individuals of the standardization sample who were in the same risk category, 44% violently reoffended within seven years of opportunity and 58% violently reoffended within ten years of opportunity. In the VRAG, “opportunity” is defined as full release or placement in a half-way house or minimum secure facility.
52Dr. Rootenberg also used a structured professional judgment (“SPJ”) risk assessment tool, the HCR-20 (version 3). Mr. Lewis scored 19 out of a possible 40 points on the HCR-20, based on an immediate release without conditions. The final risk judgment was that Mr. Lewis would represent a moderate risk to reoffend based on the HCR-20.
53Dr. Rootenberg wrote the following in his report under the heading “Composite Assessment of Risk”:
It is difficult to offer, with precision, estimates of absolute risk, and this is especially the case with regard to serious violence. However, Mr. Lewis’s risk of committing a violent offence of some kind is high, and given his offence history, including convictions for previous assaults, armed robbery, uttering threats, as well as forcible confinement, there is concern about severe violence. Taking into account both actuarial, and SPJ risk assessment methods, and his extensive criminal history, it is my conclusion that Mr. Lewis is a “high risk” offender. He has 16 prior criminal convictions as well as two convictions for offenses subsequent to the October 28, 2020 index offenses. These include a number of violent offenses, specifically three convictions for Assault, and convictions for Assault with a weapon, Armed Robbery, and Forcible Confinement. Additional convictions include three convictions for Possession of a Weapon and three convictions for Uttering Threats.
In this regard, Mr. Lewis’s risk, absent risk management, appears to be significant. A judgement of high risk suggests that there is an urgent need to develop a risk management plan for the individual, which typically would involve (at a minimum) advising staff, increasing supervision levels, placing the individual on a high priority list for available treatment resources, and scheduling regular risk assessments.
Based on his recent conviction in June 2023 regarding threatening to harm a Crown Attorney in January 2022, and his oppositional behavior with correctional officers at times, Mr. Lewis has demonstrated anti-authority attitudes, and impulsivity, rendering him vulnerable to acting aggressively to anyone who frustrates his needs. He has a dearth of factors, such as pro-social activities (e.g. educational and recreational), and significant empathy which could potentially buffer or derail him, when on a path towards a violent act. His prior alcohol abuse and assaultive behavior towards a domestic partner also places him at increased risk to act in an impulsive, aggressive and disinhibited manner.
Due to the aforenoted factors, Mr. Lewis’s risk of violence is at least moderate.
54Thus, according to Dr. Rootenberg, Mr. Lewis is a high risk offender with at least a moderate risk of violence. Dr. Rootenberg noted that Mr. Lewis has demonstrated a pattern of failing to restrain his behavior by virtue of repeated offences over the years. This shows a likelihood of inflicting psychological and potentially physical harm on another through failure to restrain his behaviour.
55Dr. Rootenberg expressed the view that, from a psychiatric perspective, there is a substantial risk that Mr. Lewis will reoffend, and that it could involve violence. He also opined that: (1) given Mr. Lewis’ history of offences, high levels of risk management will be necessary to manage his risk if he is released into the community; and (2) Mr. Lewis appears to be an individual for whom intensive treatment in custody, along with intensive supervision and further treatment in the community, will be necessary to manage his risk.
56Dr. Rootenberg’s report sets out treatment and supervision recommendations to assist in managing Mr. Lewis’ risk. Dr. Rootenberg identified the following dynamic risk factors that should be risk managed: antisocial personality disorder, substance misuse (alcohol), minimization of his risk of violence to others, poor coping methods and lifestyle instability.
57Dr. Rootenberg’s opinion is summarized as follows at the end of his report:
In summary, Mr. Lewis appears to be an individual at a moderate to high risk of violence, and there is a substantial risk that this violence may be of a serious nature.
In my clinical psychiatric opinion, it appears that there is the possibility of eventual control of that risk in the community on an LTSO, but that is largely dependent upon Mr. Lewis being rigorously supervised in the community with strict conditions and being compliant with this supervision.
In assessing how reasonable the possibility of eventual control in the community is, the following factors can be considered:
That Mr. Lewis receive federal treatment that is based on RNR [Risk, Need and Responsivity] principles. This largely depends on the availability of treatment, and his ability to accept same.
That Mr. Lewis enter the community under supervision at a community correctional centre. His degree of risk, and some historical difficulties with complying with court orders as described earlier, suggest that his transition to the community, if granted, be gradual, and highly supervised.
That Mr. Lewis’ treatment continues (e.g. “booster” sessions) in the community to prevent erosion of gains.
That in the community, Mr. Lewis is closely supervised, and breached for minor infractions.
If Mr. Lewis is granted a LTSO, it is hoped that any relapses could be used as an opportunity for further treatment of his criminogenic risk factors. I note that if he is breached, in this manner, an LTSO (if granted) would be put on hold, and then ultimately expire at a later age.
58During his testimony, Dr. Rootenberg expressed the view that Mr. Lewis needs to be supervised in the community for at least three or four years in order to give Mr. Lewis the opportunity to take part in programs and to allow his supervising officer to ensure that Mr. Lewis is not heading down a path that leads to any relapse or violence.
9. Evidence of Dr. John Arrowood
59Dr. Rootenberg referred Mr. Lewis to Dr. Arrowood for a psychological assessment. At the hearing, Dr. Arrowood was qualified as an expert in clinical and forensic psychology.
60Two psychological tests were administered to Mr. Lewis: (1) Minnesota Multiphasic Inventory-2-Restructured Form (“MMPI-2-RF”); and (2) Personality Assessment Inventory (“PAI”).
61Dr. Arrowood summarized his clinical impressions as follows in his report:
[…] Despite having been convicted, Mr. Lewis denied having committed the index offense, and took issue with the allegations made by the victim. He also denied committing a number of the prior violent offenses, and/or minimized his involvement therein relative to the descriptions on file. Understandably, he did not express remorse for offenses which he denied committing. For the offenses which he acknowledged (or partially acknowledged) having committed, including the 20/March/2019 Armed Robbery, and the 28/June/2023 Possession of a Weapon for a Dangerous Purpose and Uttering Threats, he did not express remorse or regret.
Mr. Lewis was cooperative with the psychological testing and on both measures (MMPI-2-RF and PAI) he attended appropriately to the test items and responded in a consistent fashion. Furthermore, there was no evidence that Mr. Lewis responded in a defensive fashion or that he attempted to exaggerates problems or concerns. Overall Mr. Lewis produced a valid and interpretable profile of scores on both tests.
On the MMPI-2-RF Mr. Lewis produced a minor elevation on a scale which is indicative of interpersonal suspicious and distrustfulness of others. It was noted however, that the level of endorsement was not indicative of paranoid or delusional thinking but rather reflected a level of suspiciousness that is consistent with living in a prison environment. He also produced a minor elevation on a subscale related to the belief that one is indecisive and has difficulty making decisions and dealing effectively with major and minor crises. Similarly scoring subjects report that when faced with difficulties they tend to be passive and lacking self-reliance. It was noted that neither of the scale elevations on the MMPI-2-RF were indicative of clinical psychopathology.
On the PAI Mr. Lewis produced a moderate elevation on a scale related to having an overvalued self-image and inflated self-esteem. He also produced a moderate elevation on scales related to antisocial behaviours, egocentricity and physical aggression.
The results of the PAI along with a review of Mr. Lewis’ criminal history, his denial of past misdeeds and failure to take responsibility for his behaviour and a lack of remorse or guilt are consistent with a diagnosis of Antisocial Personality Disorder. A review of his criminal offenses also suggest that he has problems with alcohol abuse and anger management. Given that Mr. Lewis has had relatively minimal treatment to date, it is recommended that all of the foregoing be the focus of future psychotherapeutic treatment efforts.
10. Evidence of Brad Tamcsu and Lori Pynn
62Mr. Tamcsu gave evidence regarding, among other things, provincial correctional centres and the programming available to offenders in provincial institutions. The majority of rehabilitative programming in correctional centres consist of short, motivational, introductory level programming to correspond with the offender’s length of stay and individual needs. More than 50% of male offender admissions represent offenders serving three-month sentences or less.
63Ms. Pynn gave evidence with respect to, among other things, the responsibilities of institutional and community parole officers, the correctional programs offered by CSC, community residential facilities and community correctional centres.
C. DISCUSSION – APPROPRIATE SENTENCE
1. Applicable legal principles
a. General principles
64The fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society: see section 718 of the Criminal Code. The main principles of sentencing are set out in sections 718, 718.1 and 718.2 of the Criminal Code. Section 718 recognizes that “just sanctions” will have one or more of the objectives identified in subsections (a) to (f), including denunciation, general and specific deterrence and rehabilitation. However, those objectives will not necessarily point toward the same sentencing disposition. The individualization of the sentencing process requires the sentencing judge to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender. The search for a just sanction that reflects a proper blending of the objectives of sentencing is guided by the principle of proportionality. See R. v. Morris, 2021 ONCA 680 at paras. 58-59 (“Morris”).
65The goal in every case is a fair, fit and principled sanction, and proportionality is the organizing principle in reaching this goal. All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Individualization is central to the proportionality assessment. 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. See R. v. Parranto, 2021 SCC 46 at paras. 10, 12, and R. v. Ipeelee, 2012 SCC 13 at para. 37 (“Ipeelee”).
66The “jump principle” was raised in this case. The jump principle stands for the proposition that a subsequent sentence imposed on an offender should not be disproportionate to sentences imposed for prior offences, provided the subsequent offence is not significantly more serious than the prior offence. Thus, a subsequent sentence for an offence should have an incremental increase proportionate to the frequency of the repeated offence. The application of this principle is contextual to the level of seriousness of the subsequent offences. See R. v. Green, 2021 ONCA 932 at para. 11 (“Green”).
67The jump principle has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness. The same is true when dealing with multiple convictions for an offender with a lengthy criminal record, or where previous sanctions have been ineffective in deterring the offender. See Green at para. 12.
b. Home invasion cases
68The predicate offences constitute a home invasion. They involve Mr. Lewis’ forced entry into the victim’s home to commit a robbery, knowing that the home was occupied, accompanied by the use of violence and the threatened use of violence with a knife. See R. v. Wright (2006), 2006 40975 (ON CA), 83 O.R. (3d) 427 at para. 13 (C.A.) (“Wright”) and R. v. S.(J.) (2006), 2006 22101 (ON CA), 81 O.R. (3d) 511 at paras. 28-34 (C.A.). Home invasion offences represent a violation of the sanctity of the home and of the sense of security that people feel when in their homes. See Wright at para. 14. In home invasion cases, the objectives of protection of the public, general deterrence and denunciation play an enhanced role. See Wright at para. 24 and R. v. Lawrence, 2020 ONCA 841 at para. 24 (“Lawrence”).
69A significant penitentiary term is generally warranted upon conviction for a home invasion offence. The Court of Appeal for Ontario has described the range of sentence for this type of offence as being from four to five years’ imprisonment, to eleven to thirteen years, and sometimes longer if warranted by the circumstances. See Wright at paras. 15, 23, 24 and Lawrence at para. 24. The Nova Scotia Court of Appeal has stated that the range for robberies committed in private dwellings is between six to ten years, and the Manitoba Court of Appeal has stated that the range for a home-invasion robbery is seven to ten years’ incarceration. See R. v. O’Brien, 2011 NSCA 112 at para. 12 (citing R. v. Leet, 1989 9546 at para. 14 (N.S. C.A.)) and R. v. Reilly, 2019 MBCA 84 at paras. 8, 16, 20 (“Reilly”).
70Home invasion cases call for a nuanced approach to sentencing. They require a careful examination of the circumstances of the particular case, the nature and severity of the criminal acts perpetrated during the home invasion, and the situation of the individual offender. See Wright at para. 24.
c. Pre-sentence custody
71In determining a sentence, a court may take into account any time spent in custody by the person as a result of the offence, but the court shall limit any credit for that time to a maximum of 1.5 days for each day spent in custody: see subsections 719(3) and (3.1) of the Criminal Code and R. v. Summers, 2014 SCC 26 at para. 70 (“Summers”). In order to ensure that an offender who spent time in pre-sentence custody does not serve longer in jail than an identical offender who was granted bail, a day of incarceration requires at least a credit of one day towards the sentence. See Summers at para. 21. Courts generally give enhanced credit to account for: (a) lost eligibility for early release and parole during pre-sentence custody, and (b) the relative harshness of the conditions in detention centres. See Summers at para. 70.
72The “Summers” credit is a deduction from what the court determines to be the appropriate sentence for the offence. The credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence that the accused has effectively served by virtue of the pre-sentence incarceration. See R. v. Marshall, 2021 ONCA 344 at para. 51 (“Marshall”).
73Where an offender has experienced particularly difficult and punitive conditions during their pre-sentence custody, the punishment they receive should be reduced to take this into account. However, the degree of mitigation is a matter of discretion in all the circumstances, and not a matter of mathematical precision. The court will consider both the conditions of the pre-sentence incarceration and the impact of those conditions on the accused. Judges are not required to quantify mathematically the mitigating effect that they assign to the mitigating effects of harsh conditions of incarceration. See R. v. Brown, 2025 ONCA 164 at paras. 4, 8 and R. v. Duncan, 2016 ONCA 754 at para. 6. Because this “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. See Marshall at paras. 52-53.
d. Sentence and LTSO
74It is important to maintain a distinction between the custodial sentence and a LTSO. Although it is open to consider public safety in determining the fitness of a sentence, the principal objective of a custodial sentence is punishment. In contrast, the objectives and rationale of a LTSO and the supervision of the offender in the community are to ensure that the offender does not reoffend and to protect the public during a period of reintegration into society. See R. v. Hoshal, 2018 ONCA 914 at para. 20 (“Hoshal”), R. v. L.M., 2008 SCC 31 at paras. 38, 46, 48, 49-50 (“L.M.”), and R. v. Foster, 2023 ONSC 5066 at paras. 2, 78 (“Foster”).
75In Hoshal, the Court of Appeal stated that a court should not increase the length of a custodial sentence to accommodate the development of a plan for the LTSO, and that the correctional authorities must act swiftly in developing that plan. See Hoshal at para. 22. The period of incarceration must be considered separately from the period of community supervision. See Foster at para. 78 and R. v. J.N., 2015 ONSC 2735 at paras. 4, 27 (“J.N.”).
76However, a judge is permitted to give lower credit for pre-sentence custody in order to advance the purposes of the long-term supervision provisions, i.e., to protect the public from the risk of the offender’s recidivism and to rehabilitate offenders and facilitate their integration into the community. See R. v. Hopley, 2015 BCCA 499 at paras. 63-64 (“Hopley”) and R. v. E.E.D., 2007 SKCA 99 at para. 74, which were cited with approval by the Ontario Court of Appeal in R. v. Spilman, 2018 ONCA 551 at paras. 44, 59 (“Spilman”). See also Hoshal at para. 26, R. v. Cote, 2015 SKCA 52 at paras. 81-82, R. v. Simpson, 2023 ONSC 382 at para. 62 (“Simpson”), and R. v. R.M.P., 2020 ONSC 6337 at paras. 178 and 184-185 (“R.M.P.”).
e. Collateral immigration consequences
77Collateral immigration consequences are not, strictly speaking, aggravating or mitigating factors: see R. v. Pham, 2013 SCC 15 at para. 11 (“Pham”). However, they may be taken into account in sentencing as personal circumstances of the offender. Their relevance flows from the application of the principles of individualization and parity, and may also flow from the application of the sentencing objective of assisting in rehabilitating offenders. See Pham at para. 11. Thus, collateral immigration consequences may be relevant in tailoring a sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case. See Pham at para. 13. Collateral immigration consequences are only one relevant factor amongst many others related to the nature and the gravity of the offence, the degree of responsibility of the offender and the offender’s personal circumstances: see Pham at para. 20.
78While a sentencing judge may exercise their discretion to take collateral immigration consequences into account, the sentence ultimately imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Inappropriate and artificial sentences cannot be imposed in order to avoid collateral immigration consequences. See Pham at paras. 14-16 and R. v. R.L.S., 2020 ONCA 338 at para. 10
f. Anti-Black racism
79Evidence of anti-Black racism and its impact on the specific offender can be an important consideration when determining the appropriate sentence: see Morris at para. 87. Social context evidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing set out in section 718 of the Criminal Code. Courts may acquire relevant social context evidence through the proper application of judicial notice or as social context evidence describing the existence, causes and impact of anti-Black racism in Canadian society, and the specific effect of anti-Black racism on the offender. However, an offender’s experience with anti-Black racism does not impact on the seriousness or gravity of the offence. See Morris at para. 13.
80While an offender does not have to show a causal connection between anti-Black racism and the offence before anti-Black racism can be treated as a mitigating factor, some connection must be demonstrated. The Court of Appeal stated the following in Morris at para. 97:
There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender’s moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount […].
81Even if there is no connection between anti-Black racism and the commission of the offence that explains or mitigates the criminal conduct in issue, evidence of anti-Black racism can still be relevant. The Court of Appeal stated the following in Morris at para. 102:
Social context evidence can also be relevant on sentencing even if it does not tend to mitigate the offender’s moral culpability. As indicated earlier, social context evidence can provide valuable insight, both with respect to the need to deter the offender from future conduct, and the rehabilitative prospects of the offender. Evidence about an offender’s background and circumstances allows the sentencing judge to more accurately assess how sometimes competing objectives of sentencing, such as rehabilitation and denunciation, can best be blended to produce a sentence that accords with the proportionality principle and serves the fundamental purpose of sentencing articulated in s. 718.
2. Positions of the parties
a. Position of the Crown
82The Crown’s position is that a fit total custodial sentence for the two predicate offences is eight years, less pre-sentence custody. The Crown submits that denunciation and deterrence are of critical importance for this type of case, which involved a violation of the victim’s sense of safety, security and control over her person, property and dwelling. The Crown argues that an eight-year custodial sentence is appropriate based on the facts of this case and sentencing principles, including parity, denunciation, deterrence, separation from society for the protection of the public, and the promotion of a sense of responsibility. Further, this term of custody would assist in rehabilitation and protection of the public by ensuring that Mr. Lewis has access to federal programming.
83The Crown notes a number of aggravating factors, including:
a. Mr. Lewis’ criminal record, which has entries for prior similar offences;
b. the location of the offence, i.e., a private dwelling;
c. the vulnerability of the victim as a small statured, lone, female sex worker;
d. the significant fear and impact on the victim, who believed that she was going to die;
e. the planned nature of the offences;
f. the motivation of the offences seemingly being greed;
g. the use of a weapon and physical force; and
h. the significant risk of recidivism.
84The Crown recognizes the presence of some mitigating factors, including Mr. Lewis’ pre-sentence custody and the fact that he was in custody during the height of the COVID-19 pandemic. However, the Crown points out that the court can exercise discretion when dealing with this issue. The Crown argues that collateral immigration consequences should not be given much weight in this case given the nature of the offence and the fact that it is not known whether the Court’s decision could have an impact on the Danger Opinion from the Minister of Citizenship and Immigration.
85The Crown also notes the absence of a number of mitigating factors, including remorse.
86The Crown refers to several cases and points out that robberies and break and enters with similar characteristics to Mr. Lewis’ predicate offences have received significant penitentiary sentences. The Crown states that an eight-year sentence fits within the range identified by the Court of Appeal in Wright, i.e., “from as low as four or five years, to as high as 11 to 13 years”.
87The Crown submits that the jump principle has limited application in this case given that there has been an increase in Mr. Lewis’ criminal behaviours, he has an extensive criminal record, and previous sanctions have been ineffective in deterring him.
88The Crown argues that in addition to being consistent with case law, a sentence around eight years in length is required to realize the intensive treatment and rehabilitation plan in federal facility given the pre-sentence custody accumulated. According to the Crown, placement in a federal institution is necessary to the goals of protection of the public and rehabilitation of the offender, and would also ensure a seamless transition into a LTSO, which is under federal jurisdiction. The Crown submits that any custodial time that falls under two years (after subtracting pre-sentence custody) would result in inadequate treatment for Mr. Lewis and, in turn, put the public in harm’s way. The Crown states that the eventual control of the risk that Mr. Lewis poses in the community can only be mitigated with the benefit of intensive planning and programming suited for high-risk offenders.
89The Crown relies on the decision of the Court of Appeal for Ontario in Spilman where, it submits, the Court of Appeal confirmed that the length of a custodial sentence must be responsive to the nexus between programming and public safety. The Crown notes that in Spilman, the Court of Appeal held that, during a hearing under section 753 of the Criminal Code, a sentencing judge: (a) is permitted to impose a length of sentence that is even beyond the usual range for the predicate offence in order to ensure that the accused has access to treatment programs in the penitentiary; and (b) is not required to award enhanced credit for time served in the normal course to meet these objectives. The Crown submits that numerous courts have relied on Spilman in the LTSO context to ensure that the accused has access to treatment programs in the penitentiary.
90Based on Spilman and Simpson, the Crown’s position is that Mr. Lewis should only be credited six years for pre-sentence custody. The Crown states that a lot of the delay in this case was caused by the defence. The Crown was ready to proceed in the fall of 2024, when Mr. Lewis sought an adjournment because he had recently retained counsel, and in the spring of 2025, when Mr. Lewis sought an adjournment to request an expert opinion.
91As a result, the Crown’s position is that Mr. Lewis should be sentenced to two years’ imprisonment (eight years – six years of pre-sentence custody) to be served in a federal penitentiary.
92The Crown also seeks the following:
a. An order pursuant to section 743.21 of the Criminal Code that Mr. Lewis not have any contact with the victim while in custody.
b. A DNA order pursuant to section 487.051 of the Criminal Code.
c. A lifetime weapons prohibition order pursuant to section 109 of the Criminal Code.
d. A restitution order in the amount of $3,000.00, to be paid once Mr. Lewis starts working.
e. An order pursuant to section 760 of the Criminal Code that a copy of all reports and testimony given by psychiatrists, psychologists and other experts, along with the reasons for sentence of this Court, be prepared and forwarded to CSC.
b. Position of Mr. Lewis
93The position of the defence is that the time that Mr. Lewis has spent in pre-sentence custody – close to 7.5 years based on a credit of 1.5 days for each day spent in custody – is more than enough, especially when considering his imminent deportation. The defence points out that this is far longer than any other of the previous sentences imposed on Mr. Lewis, and this is only the second sentence with a substantial term of imprisonment.
3. Analysis
a. Aggravating factors
94There are aggravating circumstances in this case.
95It is an aggravating circumstance that the break and enter was in a residence and that Mr. Lewis knew that the residence was occupied at the time of the offence and used violence and threats of violence towards the complainant. See section 348.1 of the Criminal Code.
96The vulnerability of the complainant is also an aggravating factor. It has been recognized that sex workers are vulnerable persons and that sentences must emphasize denunciation and deterrence to protect them from victimization. See R. v. Burke, 2022 ONSC 3356 at para. 39.
97An important aggravating factor in this case is the fact that Mr. Lewis’ criminal record includes entries for prior similar offences which also involved sex workers.
98Pursuant to section 718.2(a)(iii.1) of the Criminal Code, evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, constitutes an aggravating circumstance. While the complainant declined to give a formal victim impact statement, she stated that she lives “in constant fear all the time”. She gave evidence at trial that she feared for her life when the offences were committed. Based on this, I accept that the offences had a significant impact on her.
99Finally, the planned nature of the offences is an aggravating circumstance.
b. Mitigating factors
100I now turn to the mitigating circumstances relevant to sentence.
101An important mitigating factor in this case is the harsh conditions during Mr. Lewis’ pre-sentence custody. He was incarcerated during the COVID-19 pandemic and has experienced hundreds of lockdowns. Based on the evidence before me, he was subject to a lockdown on average one out of every four or five days that he spent in custody. Given that the records obtained from the TSDC only starts in November 2021, Mr. Lewis was likely subject to lockdowns on a more frequent basis. He was also “triple bunked” for 35 days. The evidence before me detailing what impact these conditions and lockdowns had on him is very limited and general. However, given the length of time that he has served in pre-sentence custody and the frequency of the lockdowns during that period, I am prepared to infer some impact on Mr. Lewis. See R. v. Ricciardi, 2019 ONSC 6607 at paras. 123 (“Ricciardi”).
102Mr. Lewis has the support of his mother, with whom he has a very close relationship. Mr. Lewis would like to live with her if he is released and help her manage her home since she has some health issues. Mr. Lewis also has the support of a number of friends.
103Mr. Lewis has worked consistently throughout his time in Canada (when he was not in jail). He is said to have a good work ethic and to be reliable. One of Mr. Lewis’ friends has stated that he has work for him as soon as he is released.
104Remorse is not a mitigating factor in this case as remorse requires an acceptance of guilt or willingness to take responsibility for one’s actions, which Mr. Lewis has not done with respect to the predicate offences. However, Mr. Lewis’ lack of remorse does not constitute an aggravating factor. An accused person is entitled to maintain their innocence: see R. v. Bradley, 2008 ONCA 179 at para. 16 and Morris at para. 157.
c. Other factors
105I am not satisfied that this Court’s decision on sentence will have any collateral immigration consequences for Mr. Lewis. A deportation order was issued against him more than six years ago. While a Danger Opinion is pending, there is no evidence before me with respect to whether this Court’s decision will have any impact on the Danger Opinion and, if so, how. Therefore, it is my view that collateral immigration consequences can only play a very limited role in this case.
106Mr. Lewis is a Black man. However, there is no evidence of a connection between anti-Black racism and Mr. Lewis’ criminal conduct in this case. I also note that there is no evidence of any financial issues on the part of Mr. Lewis at the time that the predicate offences were committed. As stated by the Court of Appeal in Morris, social context evidence can be relevant on sentencing even if it does not tend to mitigate the offender’s moral culpability. Such evidence can assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing set out in section 718. Despite its limited role in this case, I have taken this factor into account in determining the appropriate sentence in this case.
d. Appropriate sentence
107I have considered the cases referred to by the Crown in support of its position (the defence did not refer to specific cases regarding the length of the sentence for the predicate offences). While the cases are generally helpful, they can all be distinguished, one way or another, based on the circumstances of the case and/or the circumstances of the offender. Some of the cases that have certain similarities with this case include Reilly, Lawrence,4 R. v. Colasimone, 2018 ONCA 256, R. v. Babinski, 2013 ONCA 490, and R. v. Armstrong, 2019 ONSC 4049.
108In my view, the jump principle has little application in this case because: (a) this case shows an increase in violence and seriousness as, among other things, this is a home invasion case involving a vulnerable victim who was alone in her home; (b) Mr. Lewis has a lengthy criminal record; and (c) previous sanctions have been ineffective in deterring Mr. Lewis (among other things, Mr. Lewis has committed similar offences in the past involving sex workers). See Green at para. 12. I note that the jump principle also appears to have had little application in Lawrence, where the offender was sentenced to 6.5 years’ imprisonment with respect to offences arising from a home invasion robbery (robbery, disguise with intent, break and enter and possession of property obtained by crime). The Court of Appeal pointed out that the offender had previously been sentenced to 27 months for robbery with a firearm, forcible confinement and disguise with intent. See Lawrence at paras. 2, 25.
109Considering the factors and principles discussed above, including: (a) the principles of general deterrence, denunciation and protection of the public – which play an enhanced role in a home invasion case, (b) the important aggravating circumstances present in this case, and (c) the mitigating factors, notably the harsh conditions during Mr. Lewis’ pre-sentence custody, I conclude that a custodial sentence of seven years is the appropriate sentence in this case. In my view, this is a fit sentence that is proportionate to the gravity of the offence and the degree of responsibility of Mr. Lewis.
110I decline to impose a longer sentence in order to ensure that Mr. Lewis has access to treatment programs in a federal penitentiary. In my view, this Court does not have the authority to do so. Spilman was decided in the context of a dangerous offender proceeding – in which sentences of indeterminate detention are permitted – not a LTO proceeding. In Hoshal, which was decided by the Court of Appeal after Spillman,5 the Court of Appeal stated that a court should not increase an offender’s punishment and further jeopardize their liberty interests in order to accommodate the development of a plan for a LTSO. The Court of Appeal also referred to the importance of maintaining a distinction between the custodial sentence and a LTSO. See Hoshal at paras. 20-22. While some decisions of the Superior Court of Justice suggest that the reasoning in Spilman may apply to a LTO proceeding,6 they do not discuss the Court of Appeal’s decision in Hoshal. Further, other decisions of this Court have relied on Hoshal and found that Spilman does not apply to a LTO proceeding. See, e.g., Foster at paras. 2, 78. Until further clarification is received from an appellate court, I consider myself bound by the statements of the Court of Appeal in Hoshal and the Supreme Court of Canada in L.M.
111However, as stated above, it has been recognized by a number of appellate and first-instance decisions that a judge is permitted to give lower credit for pre-sentence custody in order to advance the purposes of long-term supervision provisions, i.e., to protect the public from the risk of the offender’s recidivism and facilitate their integration into the community. As set out later in these reasons, I find that Mr. Lewis is a LTO and that he should be subject to a LTSO.
112In my view, it is appropriate to give Mr. Lewis a credit for pre-sentence custody of 6.5 years instead of the full credit at a rate of 1.5 days of seven years, one month and six days. I do so for two reasons:
a. Mr. Lewis is directly and solely responsible for at least one year delay in this proceeding. He retained counsel just before the date on which the hearing was scheduled to start in October 2024, after months of reiterating to this Court that he wanted to represent himself and that he was not going to retain a lawyer. Then, on March 18, 2025, the day on which the hearing had been rescheduled, and more than a year after Dr. Rootenberg’s report was received, this Court was advised that Mr. Lewis had instructed his lawyer to retain a defence expert. As a result, the hearing of the application had to be adjourned again.
b. The evidence before me is that short or non-custodial sentences preceding a LTSO create difficulties for CSC to ensure that proper due diligence is given to release planning for the offender’s safe re-entry into the community. Among other things, a short or non-custodial sentence may create challenges for CSC to gather information, develop a structured and gradual release plan, and have the Parole Board of Canada impose conditions of release. Further, Dr. Rootenberg’s recommendations include that Mr. Lewis’ transition to the community be gradual, structured and highly supervised, and that he enters the community under supervision at a community correctional centre. Thus, in light of the evidence before me, a slight reduction in the credit granted for pre-sentence custody furthers the objective of protection of the public from the risk of recidivism and the objective of rehabilitation of the offender. This is because a six-month custodial period will give some time to CSC and the Parole Board of Canada to take steps to ensure that Mr. Lewis’ integration into the community occurs in a structured, planned, safe and appropriate manner.
113I also note Mr. Lewis’ significant history of misconducts while incarcerated, which casts some doubt on the likelihood that he would be granted early release or parole. See Summers at para. 79.
114Therefore, Mr. Lewis is sentenced to a period of imprisonment of seven years, less a credit of 6.5 years for pre-sentence custody, with a remaining custodial period of six months.
115The defence did not expressly oppose any of the ancillary orders requested by the Crown. In my view, aside from the restitution order requested by the Crown, the various ancillary orders requested by the Crown are uncontroversial and do not require any discussion. I discuss briefly below the issue of the restitution order.
e. Restitution order
116Subsection 738(1)(a) of the Criminal Code provides that where an offender is convicted, and where a person has suffered a loss of property as a result of the commission of the offence, the court imposing sentence may order that the offender make restitution to that person by paying an amount not exceeding the replacement value of the property, if the amount is readily ascertainable.
117An order for compensation should be made with restraint and caution. The loss should be capable of ready calculation. A sentencing judge should consider, among other things, whether civil proceedings have been initiated and the means of the offender. See R. v. Castro, 2010 ONCA 718 at para. 24, R. v. Nygard, 2024 ONSC 4837 at para. 74, and R. v. Robertson, 2020 ONCA 367 at para. 7.
118Justice Low stated in her reasons for judgment that she was “satisfied beyond a reasonable doubt that using a knife as a threatening weapon, [Mr. Lewis] robbed the complainant of between $3,000.00$ and $4.000.00.” In light of this finding and the evidence at trial, I am satisfied that the complainant has suffered a loss of property as a result of the commission of the offences, that the amount sought – $3,000.00 – does not exceed the replacement value of the property, and that the amount is readily ascertainable. There is no evidence that civil proceedings have been initiated, and no issue has been raised regarding Mr. Lewis’ future ability to pay, after he is released. The evidence before me is that Mr. Lewis has worked consistently throughout his time in Canada, and that one of his friends has work for him as soon as he is released.
119Therefore, I order Mr. Lewis to pay restitution to the complainant in the amount of $3,000.00. Requiring Mr. Lewis to pay restitution to the complainant assists in advancing the sentencing objectives of providing reparation for the harm done to the victim, and promoting a sense of responsibility in Mr