R. v. Searay, 2018 ONCJ 645

ONTARIO COURT OF JUSTICE CITATION: R. v.

Searay , 2018 ONCJ 645 DATE: 2018 03 07 COURT FILE No.: 15-13215 BETWEEN: HER MAJESTY THE QUEEN — AND — ADAM ROSS SEARAY Before Justice Harris Bentley Sentencing Submissions Heard January 30, 2018 Reasons for Decision Released March 7, 2018 Roger Dietrich..................................................................................... counsel for the Crown Sia Pashang.............................................. counsel for the accused Adam Ross Searay HARRIS BENTLEY J.: [ 1 ] Following a trial before me, Adam Searay was convicted of • Stealing from Joshua Carreiro while armed with an offensive weapon, namely a handgun, contrary to section 344(1) of the Criminal Code of Canada (Criminal Code) , and • having his face masked by means of a shirt, contrary to section 351(2) of the Criminal Code .

Facts [ 2 ] On November 12, 2015, the co-accused, Kenneth Rowe, drove Mr. Searay to the Scotiabank at 639 Southdale Road East in London in a stolen pickup truck. Mr. Searay covered his face with a white T-shirt and then entered the bank carrying a handgun. [ 3 ] Mr. Searay yelled and swore at the employees and customers in the bank, telling everyone to get down and that he did not wish to kill anybody that day. Everybody got down onto the floor. [ 4 ] Mr. Searay then leapt up onto the counter and demanded money. A teller gave Mr.

Searay money and he continued to give instructions about the denominations he wanted and that he did not want dye packs. [ 5 ] Mr. Searay jumped down from the counter and ran out the door less than a minute after arriving. During the time he was in the bank, he had the gun in his hand or on the counter. He did not deliberately point it at anyone nor did he wave it around. The mere fact of him having the gun was intimidating and terrifying for the bank customers who testified that they thought they were going to die. Mr.

Searay then ran to and entered the truck which left the parking lot heading south onto Montgomery Road at a high rate of speed. A witness walking north on Montgomery Road was almost run over by the truck as it turned left into a driveway of a plaza. Mr. Searay left the truck at this time. [ 6 ] The co-accused, Mr. Rowe then drove further into the parking lot almost striking people including a child. Mr. Rowe abandoned the truck taking with him a bag of clothing and the gun used in the robbery.

He put the clothing into a garbage can on Wellington Street and the gun under a dumpster near the Kentucky Fried Chicken where he was arrested. [ 7 ] Mr. Searay escaped and was not arrested until December, 2015.

[ 8 ] The bank lost approximately $10,000 and none of the money was recovered. The Presentence Report [ 9 ] Mr. Searay’s background is detailed in the presentence report. Although he initially did not wish to participate in the preparation of the presentence report he did engage in the process. He did not supply the writer of the report with any collateral contacts, reporting that he did not have any family or friends since he had been incarcerated for an extended period. [ 10 ] Mr. Searay’s counsel spoke about Mr. Searay’s very difficult background including significant abuse. He spoke of the difficulty for Mr.

Searay of opening up immediately to the presentence report writer who was a stranger to him. It would not be surprising that he would not trust strangers immediately. It was not easy for Mr. Searay to express his vulnerabilities. [ 11 ] Mr. Searay is now 27 years old. He maintains his innocence. [ 12 ] Mr. Searay was with the Children’s Aid Society since birth and was adopted at the age of six and was raised in a supportive environment. He had a good relationship with his adoptive parents. Mr. Searay reached out to his biological mother and discovered in 2011 that his father was born on a reserve. Mr.

Searay identifies as Indigenous and states that he would like to be involved with Indigenous services and connect with the culture once released. [ 13 ] Mr. Searay has a grade 12 education which he completed while he was in custody at Sprucedale Juvenile Detention Centre in 2008. He was never involved in a “regular” high school because of his criminal activity and defiant behaviour. He reports that he was diagnosed with ADHD and prescribed medication. He plans to return to school and upgrade his marks so that he can attend at Fanshawe College to study psychology. [ 14 ] Mr.

Searay has had a sporadic employment history, previously working for a roofing company, but this employment fell through before he was incarcerated. When not employed, he is supported through the Ontario Works program. [ 15 ] Mr. Searay used marijuana daily when he was not incarcerated. In the past, he has used opiates but has since discontinued. He uses heroin while he is in custody. He does not believe that counselling or a treatment facility would assist him. [ 16 ] Mr. Searay’s previous reporting habits to probation were poor. Probation notes indicate that Mr.

Searay’s substance abuse, associates, lack of employment and education, criminal thinking, homelessness and level of motivation were a concern while he was on probation. [ 17 ] Mr. Searay reported that he was angry and often had outbursts because of his anger. He took it out on correctional officers, staff and other inmates. He indicated that he would like to find a way to better deal with his emotions. He also stated that he has acquired post-traumatic stress disorder as a result of the multitude of incidents with which he was involved during his incarceration. [ 18 ] Mr.

Searay’s counsel submitted that he had not given up on himself as suggested by the Crown when he requested simply to be sentenced right after conviction without the benefit of a presentence report. He reminded the court that Mr. Searay served all of his preplea time in the Elgin Middlesex Detention Centre. It was difficult involving frequent lock-downs and violence. Mr. Searay watched one of his friends die at that institution. Consequently, Mr. Searay was anxious to attend a federal institution. Victim Impact [ 19 ] C.S., an employee at the bank, provided a victim impact statement.

His sense of security has been affected and he is vigilant in his surroundings whenever he is at work. He is worried about who is watching the branch and whether another robbery will take place. [ 20 ] L.J., who was manager of the service staff at the bank, provided victim impact with respect to herself and other employees. She was traumatized by the effect the robbery had on clients in the bank. She was concerned about their safety and the dramatic effect it would have on. She was also concerned about the safety of her employees, particularly one who was pregnant.

A number of employees left their jobs at the bank. L.J. had to cover for the people who had left their jobs, lost vacation time and was not able to enjoy her time off when she did have it. She still jumps whenever the door slams. She has since transitioned into another job that does not involve serving the public. Position of the Parties [ 21 ] The robbery with a restricted firearm carries a mandatory minimum of 5 years.

The Crown takes the position that the appropriate range is 6 - 8 years in the penitentiary and is asking for 7 years. [ 22 ] Defence is asking for between five and five and a half years in the penitentiary. Sentencing principles [ 23 ]

Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have the following objectives:

i) Denunciation – to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct, ii) General and specific deterrence,

iii) Protection of the public, iv) Rehabilitation,

v) Promotion of a sense of responsibility and acknowledgement of harm done to the victims or to the community: [ 24 ] Further applicable principles of sentencing are as follows, S. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. S. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. Mitigating Factors [ 25 ] The offender is still a young man with much of his life ahead of him. [ 26 ] As he maintains his innocence, remorse is not a mitigating factor. The lack of remorse is not an aggravating factor. [ 27 ] Mr. Searay has been thoughtful about his future and his Indigenous heritage.

He has taken time to research Indigenous history. [ 28 ] Mr. Searay has plans for the future involving continued schooling. [ 29 ] Mr. Searay has some insight into his anger and wishes to take steps to find a better way to deal with his emotions. Aggravating Factors [ 30 ] The impact on the witnesses to the robbery was serious. The people who were present at the bank have suffered with stress and anxiety as a result of this incident. Several employees have left their employment as a result.

This is a statutorily aggravating factor. [ 31 ] The robbery was carefully planned involving the theft of a truck, the disguise and the escape. [ 32 ] The robbery took place at a bank during the day time when there were many employees and customers in the business. [ 33 ] A restricted firearm was taken into a busy bank. [ 34 ] Mr. Searay has a lengthy record which is aggravating. In the last 19 years, Mr. Searay has incurred 35 charges. While most of the record involves breaches of court orders and property offences, by 2015, Mr.

Searay began to incur convictions for offences of violence including resisting arrest and resisting a peace officer. He has a conviction in February, 2017 for possession of a firearm or ammunition and possession of a prohibited or restricted weapon. After he was arrested on the current charges, Mr. Searay pled guilty to an assault causing bodily harm on June 27, 2017. The trend towards violent offences is disturbing and now includes a conviction for robbery.

Gladue Principles [ 35 ] As indicated above, I must consider all of the circumstances of the offence and the harm done to the victims in the community and consider all available sanctions other than imprisonment with particular attention to the circumstances of Mr. Searay as an aboriginal offender. [ 36 ] Mr. Searay discovered in 2011 that his father is of Indigenous heritage. We do not know his family’s background. It appears as though Mr. Searay was separated from his indigenous culture as a result of being taken into care at birth and his adoption to non- indigenous parents.

Some studies suggesting that adoptions of Aboriginal children by non-Aboriginal parents have a significantly higher failure rate than other adoptions. I must consider the intergenerational systemic factors that were part of the appellant’s background, and which bore on his moral blameworthiness.

R. v. Kreko, 2016 ONCA 367 [37] Mr. Searay spoke to me about his reading about residential schools and how the goal of the schools was to remove languageand culture. He feels that this happened to him in the sense that he has been isolated from his culture. He suffers many of the resultingills and particularly poverty, homelessness and addiction. Mr. Searay wishes to involve himself more into his Indigenous culture and hasbeen taking advantage of some Indigenous programs at EMDC. I also must take into account R. v. Kakekagamick, (ON CA), 2006 CarswellOnt 5038, [2006] O.J. No. 3346, 211C.C.C. (3d) 289 (Ont.CA) at paras. 42-43 42 To be clear, s. 718.2(

e) does not require, nor is there a general rule, that Aboriginal offenders must be sentenced in a way that givesthe most weight to the principle of restorative justice. It may be that in certain cases the objectives of restorative justice articulated in s.718.2(

e) and Gladue will not weigh as favourably as those of separation, denunciation and deterrence. As was noted in Gladue,Aboriginal people also believe in the importance of those latter objectives.

Those principles will always be relevant and maypredominate for more serious offenders or where the offence is serious enough that imprisonment is necessary. 43 It was noted in Gladue that while in some circumstances the length of an Aboriginal offender's sentence may be less than that ofany other offender, "the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment foraboriginals and non-aboriginals will be close to each other or the same" (para. 79). See also R. v. Linklater, [2004] O.J. No. 384 (Ont.S.C.J.) at para. 39.

However, it is important to once again repeat that regardless of the seriousness of the offence, the analysis set out inGladue will nevertheless apply in all cases where the offender is an Aboriginal person. [38] In making my decision about sentence, I do take into account restorative justice and rehabilitation. Mr. Searay has not given upon his future and neither should the court. The Co-Accused [39] The co-accused, Mr. Rowe, pled guilty to conspiracy to commit robbery and possession of a firearm and received a sentence ofnine months with a credit for fifteen months of preplea custody and three years’ probation.

As his participation was lesser and he enteredpleas to charges without the mandatory minimum sentence of 5 years, one would not expect there to be parity in sentence between thetwo co-accused. Pre-sentence Custody [40] Mr. Searay has been in custody since he was arrested on these charges, however some of the time he served was attributed tothe assault causing bodily harm. He was arrested on December 3, 2015, giving a total of 813 days of pretrial custody. 210 days wereattributed to the assault causing bodily harm leaving available 603 days which I will enhance to 904 days, close to two and a half years.

Further considerations [41] Robbery while armed with a handgun is a very serious offence. The case law is consistent in strongly denouncing the carryingand use of hand guns. The primary principles of sentencing are denunciation and deterrence for gun related crimes. [42] The dangers of the offence are demonstrated in the facts of this case. Mr. Searay engaged in behaviours which put the public ata risk of serious harm or death.

The plan involved stealing a truck, using a firearm in a public place filled with employees and customersand then the dangerous situation which developed as he sped away in the truck with Mr. Rowe making his escape. [43] In R. v. Morrissey, 2000 SCC 39 , [2000] S. C. J. No. 39, Arbour J.A. expressed her concern against an overly lenientapproach to mandatory minimum sentences at para. 75; Mandatory minimum sentences for firearm–related offences must act as an inflationary floor, setting a new minimum punishment to theso-called “best” offender whose conduct is caught by these provisions.

The mandatory minimum must not become the standard sentenceimposed on all but the very worst offender who has committed the offense and the very worst circumstances. [44] Mr. Searay is not the best offender as a result of the aggravating factors listed above, neither however, is he at the other end ofthe spectrum. Case Law [45] Crown counsel presented a brief of sentencing cases. [46] R. v Goulbourne, [2017] O.J. No. 2847, is a case about a home invasion however, at paragraph 25 it speaks of a very similarrobbery to what occurred in this case. The sentence given was seven years. [47] R. v. Ibrahim, [2014] O.J.

No. 957, was a conviction appeal in the Ontario Court of Appeal. The accused had abandoned thesentence appeal. Krall J. A. referred to the sentence of six and a half years in the penitentiary for a similar 30 second robbery. [48] In R. v. Johnson, a case of the Superior Court of Justice on December 18, 2015 Justice Salmers sentenced the accused to aglobal sentence of imprisonment of nine years. The robbery with similar but had the aggravating features that, while pointing a firearm ata civilian, the accused threatening to blow his head off.

The accused was also convicted of possessing cocaine for the purpose oftrafficking. Mr. Johnson had a positive presentence report. [49] In R. v. Johnson, [2015] M.J. No. 135, a decision of the Manitoba Court of Appeal, the Court held that a sentence of sevenyears, two months in the penitentiary was too severe and reduced it to a global sentence of six years imprisonment (Five years onrobbery and one year consecutive on a weapons charge). The accused had a lengthy criminal record in the United States. Mr. Johnson

nudged and poked employees with the gun. [ 50 ] In R. v. Murray , [2008] O.J. No. 2107 , the Ontario Superior Court of Justice sentenced the accused to five and a half years after trial. The additional aggravating feature which exists in this case is that the accused discharged a firearm. This was the 22-year-old offender’s first offence. [ 51 ] In R. v. Nembhard, [2010] O.J. No. 2420 , the Ontario Court of Appeal reduced a sentence to a global sentence of seven years . The additional aggravating features are that this was a sentencing for one robbery and one attempted robbery.

The accused had an dated record for previous robberies. [ 52 ] In R. v. Savard-Cote , [2015] O.J. No. 6076 , the Ontario Superior Court of Justice sentenced a 40-year-old who had committed two robberies and had a record for robbery to a global sentence of eight years . [ 53 ] In R. v. Stoddart [2005] O.J. No. 6076 , Nordheimer J. of the Superior Court of Justice sentenced the 29-year-old offender who had a criminal record in the United States, to a global sentence of six years . He had a prior conviction for robbery in Ontario. [ 54 ] Defence counsel provided cases as well. [ 55 ] In R. v. Anderson, [2013] Q.

J. 8253, an accused who was found guilty of two counts of robbery using an imitation firearm was sentenced to a global sentence of six years in the penitentiary. [ 56 ] In R. v. Sheikh-Hussein , [2015] O.J. No. 2559 , Thorburn J. of the Ontario Superior Court of Justice sentenced the accused to five years for robbery while using an imitation firearm. [ 57 ] In R. v. T.W. , [2010] O.J. No.3557 , West J. sentenced the accused to a global five year sentence for two armed robberies. This was a joint submission for a youthful offender with a prior record for robbery. [ 58 ] As indicated before, Mr.

Searay is a young man. He was able, while previously incarcerated, to complete his grade 12 education. He has goals to continue his education. He must address his addiction or continue to spend his life in jail. The evidence during the trial involved multiple aspects of the drug culture. Mr. Searay must remove himself from his use of drugs and from his former associates. I am concerned that, as set out in the pre-sentence report, Mr. Searay does not understand that this is a necessary step for him. He does not believe that drug counselling would be beneficial to him. [ 59 ] Mr.

Searay also needs to address his issues with respect to anger management and post-traumatic stress syndrome. It is likely that these conditions will interfere with his ability to overcome his addiction. He has indicated that he is interested in doing so. Sentence [ 60 ] Mr. Searay, I sentence you to a further three and a half years in the penitentiary showing 603 days of preplea custody enhanced to 904 days on the robbery, the equivalent of close to a six year sentence. I sentence you to 90 days concurrent for having your face masked.

I recommend that you be placed in an institution that provides addiction counselling as well as psychological counselling in a culturally appropriate setting such as Rainbow Lodge. Ancillary orders [ 61 ] Pursuant to s. 487.051 of the Criminal Code , I make an order authorizing the taking of samples of bodily substances for DNA analysis. This is a primary compulsory offence. [ 62 ] I also order a lifetime weapons prohibition pursuant to s. 109 of the Criminal Code . Released: March 7, 2018 Signed: Justice Harris Bentley