R. v. Burrill, 2022 ONCJ 274

ONTARIO COURT OF JUSTICE Citation: R. v. Burrill , 2022 ONCJ 274 DATE: June 13, 2022 COURT FILE No.: College Park, Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — PETER BURRILL Sentencing Judgment Before Justice B. Jones Heard on April 28 and June 8, 2022 Written Reasons for Judgment released on June 13, 2022 A. Cox.................................................................................................... counsel for the Crown H.

Doan............................................................................................... counsel for Peter Burrill Jones J.: Introduction [ 1 ] On April 28, 2022, Peter Burrill entered guilty pleas to ten criminal charges in Gladue court. He was in custody at the Toronto South Detention Centre (“TSDC”).

His sentencing was adjourned in order for Aboriginal Legal Services of Toronto (“ALST”) to interview him and provide me with a comprehensive letter detailing his background and life circumstances. [ 2 ] The Crown submits that an 11 month sentence (less pre-sentence custody) is required to reflect the gravity of the offences. The Crown also requests a period of probation, a 109 order for life, and a DNA order. On behalf of the defence, Mr. Doan submits a 90 day intermittent sentence is appropriate.

He does not dispute the need for a probation order and agrees the ancillary orders requested by the Crown are appropriate. [ 3 ] After hearing from the parties, I decided that the sentence would be a 90 day intermittent sentence followed by two years’ probation. These are my reasons. The Offences Theft Under x 2 (Code s. 334(b)) – March 20 and 23, 2020 [ 4 ] Mr. Burrill stole bottles of hand sanitizer from a commercial building on Yonge Street in the city of Toronto. He admitted he entered the building for this purpose on three occasions, stealing large jugs each time.

The total loss to the right owners was less than

$200. Possession Of Break-In Instrument – Coin Operated Device (Code s. 352) – May 1, 2020 [ 5 ] Mr. Burrill was arrested using a metal wire to steal coins from coin-operated parking meters. He was placed on a release order shortly after his arrest prohibiting him from possessing any instrument intended to be used for such purposes. Possession Of Break-In Instrument – Coin Operated Device (Code s. 352) and FTC Release Order (Code s. 145(5)(a) – May 10, 2021 [ 6 ] Mr. Burrill was arrested and found to be in possession of a metal wire which he used for the purpose of stealing coins from parking meters.

He was prohibited from possessing any such items as a result of a term on his release order issued by the Ontario Court of Justice. FTC Release Order (Code s. 145(5)(a)) and FTA Court (Code s. 145(2)(b)) – May 13-6, 2021 [ 7 ] Mr. Burrill missed a court date in the Ontario Court of Justice on May 13, 2021 and a bench warrant was issued for his arrest. He was located on May 16, 2021 and found to be in possession of an item that counsel accepted constituted a “burglary tool”. He was prohibited from possessing any such item as a result of a term on his release order issued by the Ontario Court of Justice.

Assault (Code s. 265) – February 16, 2022 [ 8 ] Mr. Burrill entered a TTC bus and became engaged in an argument with the bus driver. He spat in the driver’s direction and some spittle landed on him. Possession Of A Weapon For A Dangerous Purpose (Code s. 88(1)) – March 5, 2022 [ 9 ] Mr. Burrill walked into a Shoppers Drug Mart store. At some point an employee of the store stared at him. Mr. Burrill revealed that he had a pair of scissors on him, with approximately 3” blades. He asked the employee, “Is there a problem?” The employee felt intimidated and concerned for his safety. Mr.

Burrill left the store without further incident. Robbery (Code s. 343(d)) – March 7, 2022 [ 10 ] Mr. Burrill attended at a FreshCo Grocery Store and took some canned goods without paying for them. He attempted to conceal them in a duffel bag. An employee confronted him and he brandished a pair of scissors. He threatened the employee, stating, “Do you really want to do this?” The employee backed off and Mr. Burrill left the store with the stolen items. Circumstances of the Offender [ 11 ] Mr. Burrill is 50 years old. He was adopted by a non-Indigenous family in 1972. He knows very little about his birth parents.

CAS records indicate that his mother was born in Sarnia, Ontario. Her father was Chippewa and her mother was Delaware. His father was born in Mexico. He did not learn about his Indigenous heritage until he was in his 30s. [ 12 ] Mr. Burrill’s adoptive parents, Lanadee and Donald, were landed immigrants from the United States. He has a sister, Amy, who was also adopted. [ 13 ] Ms. Lanadee Burrill noted that he had difficulties during childhood. Even as a young child she grew increasingly concerned about his behaviour. He had significant emotional needs and required more attention from his parents than his sister.

She often felt overwhelmed as a result of her son’s outbursts and sometimes violent behaviour towards her. [ 14 ] She eventually enlisted the aid of the local Children’s Aid Society as she felt Mr. Burrill required regular care that she simply could not provide. When he was twelve years old, she referred him to a psychiatrist. Unfortunately, the psychiatrist did not provide a formal diagnosis and did not prove helpful. Ms. Burrill decided she simply could not care for both children anymore. By this time her marriage was unfortunately in terrible shape. She formally separated from her husband and Mr.

Burrill was sent to Kennedy House, a group home. [ 15 ] Most of the other young persons residing at Kennedy House were engaged with the youth criminal justice system. Mr. Burrill described it as a horrible environment, akin to a jail setting. He was exposed to youth with criminal tendencies and few if any meaningful adult role-models or caregivers. He began his own criminal lifestyle at this time. [ 16 ] Ms. Burrill observed that his behaviour was worse when he finished his association with Kennedy House. Shortly thereafter Ms. Burrill moved to the United States herself and Mr.

Burrill effectively had no contact with his mother for nearly 20 years. In 2009 she returned to Toronto and had a limited relationship with him. She lost track of him for another extended period of time. In 2021 they finally reconnected have since begun to work on their relationship. They have regular contact now and Mr. Burrill describes it as a close relationship. She has provided him with some financial support and also sent him books about his Indigenous heritage while he has been in custody. [ 17 ] Mr.

Burrill attributes the offences before the court to the difficulty he experienced simply surviving in the province during the COVID-19 lockdowns. He has struggled with supporting himself, maintaining a residence and his own challenges with addiction. At the start of the pandemic he lost the ability to partake in one-on-one counseling through Anishnawbe Health Toronto. Recently, as the pandemic related restrictions have eased, he has been able to begin counseling with the Native Canadian Centre of Toronto. [ 18 ] Prior to his arrest he was employed at a car wash and auto detailing business.

The employment provides him with sufficient income that he finally feels he can meet his own financial needs. He expressed great concern to me that if he remained in custody he might lose this employment but has confirmed with his employer the position is still available if he is released this month. He also has a domestic partner whom he has been seeing for a year. He can reside with her at her residence upon his release, which will provide him

with stable housing. [19] Mr. Burrill acknowledged the wrongfulness of his actions and expressed remorse. He understood that he scared the storeemployees who were simply doing their jobs and said he never meant to hurt anyone. He explained that many of his crimes were simplyborne out of economic desperation and that he succumbed to his worst-instincts when he was cut off from many of the supports herequired in the community as a result of the provincial response to the pandemic. Displacement from Indigenous Heritage [20] As previously noted, Mr.

Burrill was adopted by a non-Indigenous family before he was two years old. His adoptive parentscared for him and he acknowledges the support he continues to receive from his adoptive mother.

Nevertheless, the backgroundsurrounding his adoption and the impact it had on his life’s trajectory must be considered. [21] The 1996 Royal Commission on Aboriginal Peoples recognized that removing Aboriginal children from their communitiesthrough cross-cultural foster placement and adoption was a major cause of family disruption.[1] The number of Aboriginal adopteesplaced in non-Aboriginal homes occurred in such great numbers during the 1960s that this practice of Aboriginal child apprehensionbecame known as the “Sixties Scoop”. But this practice did not end in the 1960s.

It is well recognized that Aboriginal children in fosteror adoptive homes were deprived of their culture in a manner akin to those placed in residential schools. Aboriginal youth continue to bedramatically over-represented in the child welfare system and the need to address this ongoing concern was one of the primary calls toaction of the Truth and Reconciliation Commission of Canada.[2] [22] Mr. Burrill was one of the Indigenous children affected by this process. He suffered from a loss of identity and has struggled toconnect with his heritage.

The letter provided by ALST notes that without a connection to one’s cultural heritage, many IndigenousCanadians feel adrift. Re-connecting them with their culture assists with making connections to traditional places and customs which isof great importance. As noted by the Royal Commission on Aboriginal Peoples, this in turn helps internalize the values of theindividual’s culture and reinforces a sense of identity, strengthened by the knowledge he is part of a strong, rich, vibrant community thathas a place in the world. [23] Mr.

Burrill recognized in court the impact the separation from his cultural identity has had on his development. He welcomes allopportunities to reconnect with heritage and has previously engaged with Indigenous programming services in Toronto. This will fosterhis long-term rehabilitation and help reduce his risk of re-offending. Sentencing Law [24] A sentence must be proportionate to “the gravity of the offence committed and the moral blameworthiness of the offender:Criminal Code

section 718.1; R. v. Suter, 2018 SCC 34 at para. 4. [25] As Mr. Cox fairly argued, there are several aggravating features of these crimes. He submits that the court should emphasize theprinciples of deterrence and denunciation. Mr. Burrill threatened two vulnerable employees with scissors on two separate occasions. Hehas failed to abide by several court orders. He also assaulted the bus driver by spitting on him, which carries with it the risk he mighthave spread a disease through his actions. [26] Mr. Burrill also has a significant prior criminal record.

It begins in 1990 and continues unabated to the present day. He hasdozens of entries for crimes of violence, weapons-based offences, property crimes, and breaches of court orders. At first blush, it isunquestionably highly aggravating. [27] However, it must be placed in its proper context. There is no doubt that Indigenous Canadians have traditionally suffered throughdisproportionate policing and prosecution. Where an individual forms part of a community that has been over-policed, that must be takeninto account when determining what weight should be afforded to his prior criminal record: see R. v.

E.B., 2020 ONSC 4383 at para. 53;R. v. King, 2019 ONSC 6851 at paras. 36-38. [28] In R. v. Gladue, (SCC), the Supreme Court of Canada recognized at para. 68 that “the circumstances ofaboriginal offenders differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination,many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions.” As a result, theyhave higher interactions with the criminal justice system.

As noted by Justice Goodman in King, supra, at para. 38, “the fact that anIndigenous accused has a criminal record can, itself, be the very byproduct of systemic and direct discrimination.” [29] While I agree with the Crown that Mr. Burrill’s prior criminal record is a factor I must consider, I do not find, when placed in thiscontext, that it should automatically result in a higher sentence for him. Nor do I find that it should be treated as any sort of impedimentto my crafting a sentence designed to reflect his genuine commitment to his rehabilitation.

I note that the number of crimes for violentoffences appears to be tapering off in the last ten years and that he did not harm anyone with the scissors he wielded for the latter twooffences that form part of this resolution. [30] Mr. Burrill has already served 88 days in pre-sentence custody at the TSDC. Simply applying the standard Summers credit, he isentitled to 132 days credit. Additionally, in R. v Marshall, 2021 ONCA 344, the Ontario Court of Appeal held that punitive pre-trialdetention conditions can be considered when crafting an appropriate sentence.

Those conditions include the prevalence of COVID-19 incustody and the higher-risk of exposure, the increased use of lockdowns, and the absence of staff due to illness. Many inmates continueto experience lengthy periods of time isolated in their cells without access to exercise time or even basic needs such as daily showers: R.v. Bristol, 2021 ONCA 599 at para. 11. [31] Mr. Burrill described his time at the TSDC as “horrible.” He faced constant lockdowns and minimal access to yard time. I acceptthat this requires me to grant him additional credit for the time he has already spent in custody.

I consider these conditions at leastwarrant another 1.5 months’ worth of credit. This means he has effectively served the equivalent of a 6 month jail sentence already.

[ 32 ] If I were to accept the Crown’s position, I would sentence Mr. Burrill to another 5 months in custody at the TSDC. I cannot ignore the qualitative aspects of the sentencing conditions I know Mr. Burrill will face should I accede to the Crown’s position. At a minimum, these conditions should be considered as a collateral consequence of the sentence imposed and thus must form part of my analysis: see Suter , supra at paras. 46-48 ; Rudnicki, C., “Confronting The Experience Of Imprisonment In Sentencing: Lessons From the COVID-19 Jurisprudence”, Vol. 99, No. 3 (2021) at pp. 475-478. Gladue Principles [ 33 ] Criminal Code

section 718.2 (

e) states that 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. [ 34 ] As noted by the Ontario Court of Appeal in R. v.

Martin, 2018 ONCA 1029 , consideration of Gladue principles “recognizes the reduced moral blameworthiness resulting from the effects of intergenerational dislocation and trauma, and recognizes that aboriginal persons are disproportionately represented in the prison population”: see para. 15. [ 35 ] In R. v.

Ipeelee, 2012 SCC 13 , the Supreme Court held that a sentencing judge must take judicial notice of “the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples”: see para. 60. [ 36 ] A court must consider not only the existence of these factors, but also analyze how they have impacted the offender’s specific life experiences and thus to what extent they bear on his moral culpability.

In R. v. F.H.L., 2018 ONCA 83 , the Ontario Court of Appeal explained at para. 31 that before an Aboriginal offender’s background should influence the court’s sentencing decision, “the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender’s life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender’s case.” [ 37 ] Mr. Burrill’s case is similar to that of the appellant in R. v. Kreko, 2016 ONCA 367 .

The appellant was an Aboriginal Canadian who had been adopted at one year of age by a non-Aboriginal family and was raised without knowledge of his Aboriginal heritage. Sometime after his 16 th birthday he learned of his Aboriginal background. The realization that he might never be able to connect with his birth mother led to feelings of “abandonment, resentment, and a sense that he was unwanted”: see para. 9.

While the trial judge found that there was no clear causal link between the appellant’s Aboriginal heritage and his offences, the Court of Appeal held that to require such a link was an error of law. [ 38 ] The Court of Appeal found the Appellant’s dislocation from his identity bore on his moral culpability and that his Aboriginal heritage, even if it was unknown to him for many years, was relevant to the sentencing process.

The trial court should have considered the intergenerational, systemic factors – including disadvantage and poverty - that formed part of the contextual evidence to be considered during the sentencing hearing: see para. 24. [ 39 ] Mr. Burrill was also displaced from his Aboriginal heritage as a child and did not learn of its existence until he was in his 30s. He is still trying to piece together what he can learn of his specific family history. It is of great importance to him. He feels separation from his cultural identity. He explained that at times he has felt lost, abandoned, and has fallen prey to addiction.

That does not excuse his crimes. But these factors, alongside the very difficult upbringing he experienced, bear on his moral culpability. Intermittent Jail Sentences and the TAP [ 40 ] Mr. Doan seeks a 90 day jail sentence to be served intermittently. Mr. Doan submits that permitting Mr. Burrill to serve the jail sentence intermittently would appropriately balance the need for the court to apply the principles of deterrence and denunciation for these offences while also allowing his client to continue his employment and remain positively engaged with Indigenous community programming.

There should be an equal focus on rehabilitation in my decision. [ 41 ] I brought to the attention of counsel that the Ministry of the Solicitor General now permits inmates sentenced to intermittent jail terms in Toronto to serve the sentence at home on weekends, rather than in custody, pursuant to a temporary absence permit (“TAP”) combined with an electronic monitoring bracelet. The Crown made no submissions respecting this feature of how intermittent jail sentences are currently being implemented.

As I understand there is some uncertainty about whether or not this affects the lawful availability of an intermittent sentence, I will make a determination on that question before imposing sentence. [ 42 ] Section 732(1) of the Criminal Code grants the court the authority to impose an intermittent jail sentence.

It states: Where the court imposes a sentence of imprisonment of ninety days or less on an offender convicted of an offence, whether in default of payment of a fine or otherwise, the court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order (

a) that the sentence be served intermittently at such times as are specified in the order; and (

b) that the offender comply with the conditions prescribed in a probation order when not in confinement during the period that the sentence is being served and, if the court so orders, on release from prison after completing the intermittent sentence. [ 43 ] One of the statutory requirements for the imposition of an intermittent sentence is that the court is satisfied of the “availability of appropriate accommodation to ensure compliance with the sentence.” Given the Ministry of the Solicitor General’s decision to permit inmates to serve these sentences via the TAP, a question arises as to whether there still exists “appropriate accommodation to ensure compliance with the sentence.” I find that appropriate accommodations remain.

[ 44 ] On March 20, 2020 [3] , the Ministry of the Solicitor General announced that it was expanding the use of temporary absences for intermittent inmates in an effort to help curb the spread of COVID-19 in the province’s adult correctional facilities. The Ministry noted at the time that there was a need to alleviate overcrowding in provincial institutions and the TAP was an appropriate means by which to partially achieve this goal. [ 45 ] The legal parameters of the TAP are governed by the Ministry of Correctional Services Act , R.S.O. 1990, c. M.22 and Ontario regulation 778 .

A TAP may be granted to an inmate at the discretion of certain correctional authorities. It may also be rescinded for an inmate’s non-compliance with the conditions that imposed as part of a TAP. The relevant sections of the legislation and regulation are reproduced below: Ministry of Correctional Services Act 27

(1) Where, in the opinion of a person, designated by the Lieutenant Governor in Council for the purpose, it is necessary or desirable that an inmate be temporarily absent from a correctional institution for medical or humanitarian reasons or to assist the inmate in his or her rehabilitation, the person may authorize the temporary absence of the inmate on such terms and conditions as the person may specify. R.S.O. 1990, c. M.22, s. 27 (1) ; 2000, c. 40, s. 7 ; 2002, c. 18 , Sched. N, s. 29 .

(2) Every inmate temporarily absent under subsection (1) shall comply with such terms and conditions as are specified and shall return to the correctional institution at the expiration of the period for which the inmate is authorized to be at large. R.S.O. 1990, c. M.22, s. 27 (2) .

(3) Every inmate who contravenes subsection (2) without lawful excuse, the proof of which lies upon the inmate, is guilty of an offence and on conviction is liable to imprisonment for a term of not more than one year. R.S.O. 1990, c. M.22, s. 27 (3) . 27.1 An inmate shall be deemed to be in the custody of a correctional institution for the purposes of this Act even if he or she is not on the premises of the correctional institution, so long as he or she is in the custody of a correctional officer. 2002, c. 18 , Sched. N, s. 30 . Ontario Regulation 778 36.

(1) Every inmate is eligible to be lawfully absent from an institution during the inmate’s term of imprisonment under the authority of a temporary absence permit issued by the Superintendent, the Board, a member of the Board or a person referred to in subsection 35 (1.1). O. Reg. 69/20, s. 3. … 39.1

(1) The Superintendent, Board, member of the Board or person referred to in subsection 35 (1.1) may cancel a temporary absence permit granted by them, before or after the beginning of the temporary absence, if, (

a) the inmate has breached or attempted to breach a condition of the temporary absence permit; (

b) the Superintendent, Board, member of the Board or person referred to in subsection 35 (1.1) considers it necessary and justified in order to prevent a breach of a condition of the temporary absence permit; (

c) the grounds for granting the temporary absence permit have changed or no longer exist; or (

d) the request has been reassessed, based on new information that could not reasonably have been provided when the temporary absence permit was granted. O. Reg. 305/01, s. 2; O. Reg. 69/20, s. 6 (1, 2).

(2) If a temporary absence permit is cancelled, the Superintendent, Board, member of the Board or person referred to in subsection 35 (1.1), as the case may be, (

a) shall order the inmate to return immediately to the correctional institution, with reasons for the cancellation; and (

b) may have a notice of cancellation issued for the inmate’s apprehension and recommittal. O. Reg. 305/01, s. 2; O. Reg. 69/20, s. 6 (3). [ 46 ] Inmates serving a sentence in Canada are almost always eligible for some form of early release. With very few exceptions, a determination as to whether or not an offender is released on a form of a conditional release prior to the completion of his or her sentence is not within the jurisdiction of the sentencing judge: see R. v. Passera , 2019 ONCA 527 at para. 26 ; Canada (Attorney General) v.

Whaling , 2014 SCC 20 , at para. 61 . [ 47 ] In Passera , the Ontario Court of Appeal held that it is an error of law for a sentencing court to consider eligibility for conditional release when determining a fit sentence. The Court held at para. 23 that “the determination and imposition of a fit sentence and the administration of that sentence after it is imposed are two distinct functions, performed by different entities, governed by different statutory regimes, and designed to serve different purposes: R. v.

Zinck , 2003 SCC 6 , [2003] 1 S.C.R. 41 , at para. 19 .” [ 48 ] Correctional authorities are required to determine when and on what terms inmates should be permitted to serve part of the sentence outside of jail or prison. That process engages different considerations than those of a sentencing court when determining a fit sentence: see Passera at para. 24 .

Furthermore, the Court of Appeal in Passera explained that sentencing courts must remember that a grant of conditional release by correctional authorities does not alter the sentence imposed by the sentencing judge, but rather it simply permits the offender to serve part of the sentence on the terms and conditions set by those authorities pursuant to the applicable law: see

para. 46; Cunningham v. Canada, (SCC); R. v. M. (C.A.), (SCC) at paras. 61-62. [49] The TAP implemented by the Ministry of the Solicitor General with respect to intermittent sentences does not, in my view, alterthe sentence imposed by the sentencing judge. It merely affects how it is administered. It also does not result in a lack of “appropriateaccommodation” as required by Criminal Code

section 732 for the imposition of an intermittent sentence. Pursuant to

section 39 ofOntario Regulation 778, an inmate granted a TAP may be reincarcerated should he breach or even attempt to breach any conditionsplaced on him as part of a TAP. [50] If intermittent sentences were deemed to be effectively unavailable as a result of this policy decision by the Ministry of theSolicitor General it would deny courts the ability to impose an otherwise appropriate sentencing disposition authorized by Parliament inthe Criminal Code.

It would also place courts in the difficult position of choosing between a quantity of straight jail time that couldcause undue hardship to the offender and his family and a suspended sentence and probation that was insufficient to hold the offenderaccountable. This is a serious consideration for Mr. Burrill given the notoriously difficult conditions at the TSDC which have been welldocumented in the jurisprudence: see R. v. Ahmed, 2021 ONSC 8157 at para. 40.

Any additional custody that I impose upon him, otherthan in the form of an intermittent sentence, would require him to remain in the TSDC for a prolonged period of time. The reality of theconditions of incarceration at this institution and the impact they will certainly have on Mr. Burrill must form part of my decision: see R.v. Reddick, 2020 ONCA 786 at para. 11. Conclusion [51] Mr. Burrill has every opportunity to move forward with his life successfully. He has employment, stable housing, culturallyappropriate programming, and the love and support of his domestic partner.

While his criminal record is lengthy and the crimes ofviolence he pleaded guilty to before me are serious, he has already served a considerable period of time in pre-sentence custody inextremely difficult conditions. His long-term rehabilitation should be my paramount sentencing objective at this point. [52] There is an obligation on all justice system participants to take meaningful steps to address the over-incarceration of Indigenouspeoples in Canada.

The Supreme Court continues to direct trial courts to acknowledge this injustice and to consider alternativeapproaches to sentencing accordingly, where they are appropriate: Ipeelee, supra, at paras. 62-3; Rudin, J., Indigenous People and theCriminal Justice System: A Practitioner’s Handbook (Toronto: Emond Publishing, 2019) at 102.

Every day we have an opportunity toshow a commitment these values and embrace the spirit of reconciliation. [53] The severity of some crimes, and the circumstances in which they occur, may not always result in a different outcome even whenconsidering the unique systemic and background factors relevant to an Aboriginal offender: see F.H.L, supra at paras. 49-50. The courtmust be satisfied that those factors impacted the offender in a manner that bears on his moral blameworthiness. In my view, this is clearlyone such appropriate case. [54] In R. v.

Middleton, 2009 SCC 21, Justice Fish explained that an intermittent jail sentence is meant to strike a balance between thedenunciatory and deterrent functions of “real jail time” and the “rehabilitative functions of preserving an offenders employment, familyrelationships and responsibilities, and obligations to the community”: see para. 45. Maintaining that balance and ensuring Mr.

Burrill’spro-social connections are not unduly disrupted is in both his best interests and the public interest. [55] Given his lengthy prior criminal record and the aggravating features present for these offences, I agree with the Crown that someadditional period of custody is required. However, an intermittent sentence in this case will give adequate weight to the principles ofdeterrence and denunciation, recognize these aggravating factors, and still allow Mr. Burrill to continue with his rehabilitation and long-term reintegration into society.

It will also permit him to continue with his employment in order to support himself and contribute tosociety, which also weighs in favour of an intermittent sentence: see R. v. El-Sayed, 2013 ONCA 754 at para. 5. [56] Mr. Burrill’s 88 days already spent in custody will be noted on each count. He is sentenced to a 90 day intermittent sentence onthe robbery count followed by two years’ probation. He will be sentenced to a suspended sentence and two years’ probation on all othercounts, to run concurrently to one another.

The terms of probation will include the following: • You will keep the peace and be of good behaviour; • You will report to your probation officer by telephone within 48 hours of your release from custody and thereafter as directed; • You will reside at an address approved of by your probation officer; • You will have no contact directly or indirectly with the victims of these offences; • If granted permission to serve your intermittent jail sentence via the temporary absence permit (“TAP”), you will comply with allterms, conditions and orders imposed on you by the correctional authorities; • You will remain confined to your residence at all times while serving the sentence via the TAP except for any exceptions grantedto you by the correctional authorities including for employment purposes; • You will remain in a sober condition while serving the sentence via the TAP; • You will immediately produce yourself at the front door of your residence to any correctional officer or peace officer or theirdesignate who attends to confirm you are in your residence while serving the sentence via the TAP. [57] There be an order pursuant to Criminal Code

section 109 for life. Robbery is a primary designated offence and I will issue aDNA order accordingly.

Released: June 13, 2022 Signed: Justice Brock Jones