R. v. Christopher, 2020 ONCJ 337

ONTARIO COURT OF JUSTICE CITATION: R. v. Christopher, 2020 ONCJ 337 DATE: July 24, 2020 BETWEEN: HER MAJESTY THE QUEEN — AND — MICHAEL CHRISTOPHER Before Justice B. Green Reasons for Sentence on July 24th, 2020 Mr. M. Newell and Ms. M. Allan as counsel for the Crown Mr. R. D. Baran as counsel for the defendant Mr. Christopher Green J.: A. Introduction: [1] Following a series of judicial pretrials with the crown and defence counsel, Mr. Christopher entered pleas of guilty to fourcounts of bank robbery and one global count of wearing a disguise.

While the crown proceeded with four counts, it was clearly agreed onthe record that I will consider all of the admitted facts when determining the appropriate sentence. Please see: R. v. Garcia and Silva, (ON CA), [1970] 1 O.R. 821 (Ont. C.A.) and

section 725 of the Criminal Code. [2] Both counsel and the crown prepared thorough and thoughtful written submissions. Defence counsel submitted that thesentence should be four years in the penitentiary less credit for the time served and less credit for the time that Mr. Christopher has spenton stringent bail conditions. Counsel relied on a multitude of sentencing precedents to support his position. [3] The crown proposed a range of sentence from five to seven years in the penitentiary in light of the very serious nature of theoffences and the lasting victim impact.

While the crown suggested that this was the appropriate range, the written submissions advocatedfor a more specific sentence of six and a half years. The crown further submitted that Mr. Christopher should not be given any credit forhis time spent on house arrest because he has not been adversely impacted by the terms of his bail. In addition to the penitentiarysentence, the crown is seeking ancillary orders of a life time

section 109 weapons prohibition, a DNA order as well as a restitution order. [4] This was a very challenging decision because of the diametrically opposing sentencing considerations. The offences areextremely serious, there is lasting victim impact and substantial financial losses for the banks. In contrast, there are uniquely mitigatingfactors with respect to Mr. Christopher. He is a very young, first offender.

He has a positive support network and he has significantpotential for rehabilitation. [5] A fulsome review of the aggravating and mitigating facts, the various sentencing principles and comparable sentencingprecedents is essential to explain the sentence for this offender for these offences. B.

Summary of the Facts:

i. Circumstances of the offences: [ 6 ] The plea proceeded by way of an agreed statement of facts. Mr. Christopher plead guilty to four bank robberies and one global count of wearing a disguise. However, he will be sentenced for robbing six different banks and one attempted robbery. The robberies took place over a period of time of a little bit more than a month. The offences were committed with two youths who have also plead guilty to some of the robberies. They were sentenced as young persons. [ 7 ] The offences were sophisticated and clearly involved pre-planning and organization.

Stolen vehicles and plates were used to commit the robberies. The perpetrators carefully concealed their identities with masks, and they wore gloves. They changed jurisdictions after each successful robbery to avoid detection. Each robbery was carefully and similarly executed so that they were in and out of the bank within minutes and left in a getaway vehicle. While no weapons were used, the assailants aggressively shouted commands at the occupants of the banks. [ 8 ] The total amount of money stolen during these bank heists was $104,800.36. Sums of $8389 and $3221 were recovered after one of the robberies.

As a result, the banks suffered financial losses in the amount of $93,190.36 ( these amounts were adjusted slightly during the sentencing submissions ). None of this money has been recovered and there was no evidence called with respect to what happened to such a large sum of money in such a short period of time. [ 9 ] Mr. Christopher plead guilty to count 12 on the information which was amended to be a global count including all of the offence dates of having his face masked with the intention of committing an indictable offence.

In addition, he admitted all of the following facts ( the offences that are in bold and underlined reflect the counts that he formally entered pleas of guilty to ): 1. Feb 4, 2019: Scotiabank, located at 999 King Street West in Hamilton, Ontario ( count 1 on a separate information ) On February 4, 2019, at approximately 1:05 p.m., Michael Christopher and an unidentified male concealed their identities and robbed the Scotiabank located at 999 King Street West in Hamilton, Ontario, taking $15,700 in currency.

On February 4, 2019, two masked culprits entered the Scotiabank, located at 999 King Street West in Hamilton, Ontario. Upon entering, they began yelling, “Everyone down on the ground”. They jumped the counter and entered the teller area. Security cameras in the bank captured images of the culprits. The culprits fled in a stolen 4-door Volkswagen Jetta, driven by a getaway driver. The vehicle was reported stolen on January 31, 2019. 2. February 27, 2019: CIBC at 27 Main St.

West in Grimsby, Ontario ( count 11 on the information ) On February 27, 2019, at approximately 1:16 p.m., Michael Christopher and Q.W. concealed their faces and robbed the Canadian Imperial Bank of Commerce, located at 27 Main Street West in Grimsby, Ontario; $28,632 was stolen. The police ultimately recovered $8389 in Canadian currency and $3221 in American currency. The total loss to the bank as a result of this robbery, less the amounts recovered, was $17,022.

On February 27, 2019, at approximately 1:16 p.m., Niagara Regional Police responded to a robbery call at the CIBC bank, located at 27 Main Street West in Grimsby, Ontario. The culprits disguised their appearance by covering their faces and they also wore gloves. The culprits jumped the counter, asked where the money was and demanded, “Give me the money”. They stole money from the tills, unsuccessfully attempted to access the vault and fled in a blue Mitsubishi Eclipse with a stolen license plate on it.

The getaway vehicle was discovered near the QEW and Cassablanca Blvd., having apparently left the roadway and struck a sign. At the scene of the motor vehicle collision the police recovered a black Erin Mills Soccer Club backpack, containing some of the stolen money and various documents and school work in the name of Q.W. An unwitting good Samaritan drove Q.W. and Michael Christopher to the Burlington Go Station. Video surveillance from the GO Station recorded images of both culprits. 3. March 4, 2019: CIBC at 9641 Jane St. in Vaughan, Ontario

On March 4, 2019, T.C. and Michael Christopher robbed the Canadian Imperial Bank of Commerce, located at 9641 Jane Street in Vaughan, Ontario, taking approximately $1500 in currency. T.C. was arrested immediately following the robbery. Michael Christopher fled in a stolen Volkswagen Jetta. Michael Christopher was identified as the second culprit based upon comparison of the bank’s security camera images to Michael Christopher’s general size and stature and based upon clothing seized on March 11, 2019, when Michael Christopher was arrested for a bank robbery in Hamilton.

During the sentencing hearing, the amounts stolen during this robbery were amended with the consent of counsel. The actual amount stolen was $2092. A total of $1539 was recovered so the loss to the bank was $553. 4. March 6, 2019: CIBC at 114 Harwood Ave. South in Ajax, Ontario at approximately 1:39 p.m. On March 6, 2019, Q.W. and Michael Christopher attempted to rob the CIBC, located at 114 Harwood Avenue in Ajax, Ontario. They abandoned their robbery when they approached the doors of the bank and saw a security guard inside. No money was taken. 5.

March 6, 2019: Scotiabank at 1947 Ravenscroft Road in Ajax, Ontario at approximately 2:29 p.m. ( count 3 on the information ) On March 6, 2019, at approximately 2:29 p.m., Michael Christopher and Q.W. robbed the Scotiabank located at 1947 Ravenscroft Road in Ajax, Ontario, robbing the institution of $15,089.36. The suspects fled in a silver Subaru. All of the victim impact statements that were filed as exhibits during the sentencing were in relation to this robbery. 6.

March 7, 2019: CIBC at 600 Yonge St in Barrie, Ontario ( count 5 on the information ) On Thursday March 7, 2019, at approximately 2:30 p.m., Michael Christopher and Q.W. robbed the CIBC located at 600 Yonge St, Barrie ON, taking $43,879 in currency. On Thursday March 7, 2019, at approximately 2:30 p.m., two masked culprits robbed the CIBC. The males entered the bank then proceeded immediately to the teller’s wickets. One male jumped over the counter and ordered the teller to “get on the ground”. No weapons were observed during this robbery. One teller was knocked over by a suspect and sustained minor injuries.

Victim impact evidence was not available with respect to this teller. I don’t have any further details about the nature or extent of the injuries and there was no indication whether the teller was accidentally knocked over while the perpetrator hopped the counter or s/he was purposefully assaulted by the perpetrator. 7. March 11, 2019: CIBC at 905 Rymal Rd. in Hamilton, Ontario On March 11, 2019, the police were conducting surveillance on Q.W. The police observed him driving the silver Subaru Legacy, first seen on March 6, 2019.

Q.W. picked up Michael Christopher in Etobicoke, Ontario and the two proceeded to Hamilton, where they robbed the CIBC at 905 Rymal Road in Hamilton, Ontario. They did not obtain any money as the branch only had ATM’s. They fled the scene and were arrested after a short foot-pursuit. The police also seized a grey Apple iPhone from the glove box of the Subaru Legacy. Forensic examination linked the phone to Michael Christopher. The police discovered “selfie” images of Michael Christopher holding large bundles of cash. The images were taken on

March 9, 2019. [10] These were well planned and carefully executed, brazen daylight bank robberies without any consideration for the safety of theemployees or any innocent people who had the misfortune of being inside the banks in the middle of a business day. Shortly after one ofthe robberies in which a teller was harmed, without any regard to those victims or any apparent remorse, Mr. Christopher proudly posedwith his ill-gotten gains in selfies. ii. Victim Impact: [11] Bank robberies are often minimized or glamourized when “no one gets hurt” and the only financial loss is to a bankinginstitution.

However, real people, vulnerable employees, were terrorized by these offences. In R. v. Johnson, 2012 ONCA 339 ,[2012] O.J. No. 2255 para. 13 (Ont.C.A.), the Court of Appeal emphasized that even seemingly benign note passing bank robberies areserious crimes: While "note passing" robberies may not be as violent as other forms, this Court has made it clear that they remain a very serious crimecapable of instilling fear and trauma into victimized bank tellers. [12] It cannot be stated strenuously enough that real life is not like video game simulations of crimes or movies.

Emotional andpsychological suffering was needlessly inflicted on innocent people who were simply trying to earn an honest living or go about theirdaily affairs. These offences have had a profound impact on some of the victims. [13] One of the tellers from the March 6th robbery has been struggling significantly as a result of the offence. She lost wages for thetime she had to take off of work, she has to pay for therapy, and she has developed issues with high blood pressure that requiresmedication. She explained that she lives in a state of fear: “I'm 28 years old and have always been given a clean bill of health.

Since the incident I've been put on blood pressure medication for anelevated heart rate.” “Fears for security go beyond fear of the offenders. Its fear of everyday life. Its fear of functioning at work. Fears every time a doorslams, or someone shouts, or the wind catches the door, or a customer rushes in from the cold. Fear every time someone moves tooquickly or too loudly. Fear every time someone appears unexpectedly.” “You two criminals didn't just steal money. You stole my normal. You stole my emotional stability. You stole my safety and security atwork. You stole my smile.

You stole my excitement and enjoyment of coming into work. You stole my ability to sit through an entireshift without bursting into tears. You stole mental and physical health. You stole aspects of my life they had no right to. You don't evenknow me. But even if you did, let me assure you, I did not deserve to have all this taken from me…All the people in that place wereimpacted by you both and your selfishness… You stole much more than money that day when you left… You stole our joy. You stoleour happiness.

You stole our safety.” [14] Another teller in the bank provided a statement detailing the terror that she and her co-workers experienced when the robbersburst in and yelled at everyone to get down on the floor. She described the impact on her life: “I went on stress leave as I was very much in fear and did not come out of my bedroom… Even after a week I was so disturbed by theincident and could not get over it. I had terrible nightmares for a long time. I would wake up sweating and crying and wake up myhusband for comfort.

Now I still get flashbacks sometimes and I get startled easily.” [15] Although this victim has returned to work, she is actively seeking a new position because she no longer feels safe interactingwith customers. Two other bank employees provided victim impact that also detailed ongoing nightmares, a shattered sense of safety andlasting trauma. One victim poignantly stated, “I felt vulnerable. I felt powerless. I felt like a failure. I was shaken to my core.” He wrote amoving poem about how he felt paralyzed by fear and ashamed that he was unable to help his co-workers.

He described how thosewords “everyone on the ground” made him feel: “Please I need to breathe, but my lungs fail to give oxygen to my brain and my heart won't stop pounding through my chest. Everybodyon the ground. You have taken my air, you have taken my light, you have taken my drive my ambition, my trust.” [16] These statements were from the employees of only one of the bank robberies committed in this region. These victims imploredthe offenders to recognize the harm they caused to them. One teller simply wanted to know from Mr.

Christopher if it was worth it.Unfortunately, victim impact statements were not obtained from any of the other jurisdictions. [17] Counsel emphasized the facts that no weapons or physical violence were used during the commission of these offences otherthan the one teller who was knocked to the floor and suffered minor injuries. In R. v. Burke, [2018] O.J. No. 3815 at para. 35 (Ont.C.J.),the Court reviewed sentencing precedents for robberies and held that: Sentencing precedent recognizes a distinction between robberies committed while armed and the type committed here: see R. v.Dumesnil, [1977] O.J.

No. 249 (C.A.) at para. 8. Mr. Burke's offending does fall on the lower end of that particular scale. I have no doubtthat Mr. Burke rationalized committing these crimes because he was desperate to feed his addiction and because he did not intend tophysically harm anyone. This matters not. His victims were terrified for their lives and Mr. Burke's actions will affect thempsychologically for the rest of their lives.

I find the impact on these victims to be an aggravating factor. [emphasis mine] [18] There is an absence of some significantly aggravating factors but, not using a weapon or physical violence are not mitigating

factors. These crimes terrorized the victims. While sexual assaults are not analogous to bank robberies, the theme throughout various Court of Appeal sentencing judgements is applicable. The employees were intimidated by the implicit threat that they had to do what they were being directed to do “or else”. They are still suffering as a result of these crimes. The Ontario Court of Appeal has repeatedly stated that conduct that brutalizes the mind, that leaves lasting emotional and psychological scars, is violent and very serious. iii.

Circumstances of the offender: [ 19 ] There is a startling contrast between the circumstances of these offences and the circumstances of this offender. Mr. Christopher is an enigma. It is mind boggling that this very young first offender with so much potential became entangled in an organized bank robbery ring. [ 20 ] Michael Christopher was 20 years old at the time of the offences. He has no prior record. I received a positive and detailed presentence report about his life. Counsel also provided me with nine character references who spoke very highly of Mr.

Christopher’s life before these offences and his potential to be a successful, law-abiding and contributing member of society in the future. Some of the highlights of those letters were as follows: • Mr. Nojd, a community worker with the church ministry, confirmed that Mr. Christopher has been actively participating in counseling over the last eight months. He has worked on “concrete steps about what specific choices he could and should make in order to ensure that his future is a bright one”; • Mr. Payne, a church group leader, has had weekly meetings with Mr.

Christopher and described him as hardworking, compassionate, always willing to lend a hand, courteous and respectful. He confirmed that Mr. Christopher participated in four missionary trips to Nicaragua in the past. Mr. Christopher has also been actively involved in community service work and church fund raisers; • Mr. Caven, another active church member, offered him employment on occasion. He trusts him and is prepared to offer him employment in the future when he is released from custody; • Mr. Blackburn, his employer and surety, confirmed that Mr. Christopher has been a model employee. Mr.

Christopher was described as “responsible, trust-worthy and dependable” and that he demonstrated “diligent capability”. He will “gladly hire him” in future and “highly recommend him” for employment opportunities; • Family friends, a teacher and other church members wrote about Mr. Christopher’s reliability, honesty, his work ethic, great attitude, his expressed remorse, “deep regret” and his future potential to be a positively contributing member of society. They all confirmed his dedication to the church and community service work; • Mr.

Christopher is remorseful for the suffering that he caused to the bank employees and for the stress that he has caused his family. He has a close bond with his parents and his younger sister; • This strong support network acknowledged the seriousness of these crimes, the harm done to the victims but they emphasised that this behaviour was an “aberration” and “not indicative of who this young man is”; [ 21 ] Mr. Christopher was adopted by his parents as a newborn. He had a “happy and fulfilled childhood”. He was raised in a supportive family with loving parents and his sister who is also adopted.

He was always aware that he was adopted, and his biological mother stayed in contact for the first year of his life. He does not feel that he has been negatively impacted by his adoption. [ 22 ] Mr. Christopher had a remarkable upbringing. His family is actively involved in their church and his parents are dedicated missionaries. One of the character letters referred to Mr. Christopher’s parents as “excellent role models”. I cannot imagine better influences in his life than the example that his parents have set for him. As noted, Mr.

Christopher also personally participated in four different missions abroad bringing aid to disadvantaged countries. He has an incredible support network and ample positive peer associations. [ 23 ] Mr. Christopher was a talented athlete throughout high school. Although he struggled academically, he is very good with his hands and he has a future in trades. He had a job after high school, but he left that job when a friend promised him an opportunity that never materialized.

He was out of work and out of school when he started hanging around with other unemployed young men and became involved in these offences as a means to make some “fast money”. [ 24 ] While many of the people who love and care for Mr. Christopher attribute these crimes to negative influences in his life, his teenage co-accused are not to blame for his choices . He was an adult at the time of these offences who was more than three years older than his two sixteen year old co-accused.

Considering the multitude of positive role models in his life, his life experiences and his age, it is incredulous that two younger teenagers had such an overwhelming influence over the previously good judgement of a more mature adult. Mr. Christopher is responsible for making his own informed decisions to victimize innocent people in their places of work over and over again. [ 25 ] In terms of the motivation for these serious crimes, it is important to note that Mr. Christopher was not driven by desperation to fund a drug addiction or crushing poverty or the ravages of mental illness. Mr.

Christopher related to the author of the presentence report that “ although he recognized that they were negative influences, he admits that he was wrapped up in the whole scenario and went along with their ideas. He acknowledged that the allure of “ quick money ” along with his poor judgement and “ impulsivity” led to his involvement in the current offences.” [emphasis mine] [ 26 ] These offences were not desperation fueled impulsive acts. Six successful robberies in six cities over a matter of weeks.

These robberies were planned, organized and coordinated with every offender playing a vital role in the commission of the offences. The nature of these crimes are completely inconsistent with any claims that Mr. Christopher’s actions were anything close to impulsive. Furthermore, there is no mystery about what motivated these crimes, he wanted money and the thrill of the crimes. He was motivated by

greed and he was willing to risk lives and harm people to get material things. Worse yet, despite stealing large sums of money, he and hiscohorts were still not satisfied and continued to terrorize innocent people. Even after his co-accused T.C. was arrested following one ofthe bank robberies, that did not deter Mr. Christopher. Instead of that arrest being a wake-up call for him, he continued to rob banks withQ.W. [27] I accept that Mr. Christopher is deeply ashamed of his conduct and that he is acutely aware of how much he has disappointedhis family.

He regrets his actions and he wants to make amends for his misdeeds. I accept that he has significant potential forrehabilitation and, once he is released from custody, he will have the enduring incredible support network of people who will assist himwith following through with training in a trade, securing employment for him and offering him a loving and stable home environment. [28] Mr. Christopher’s family believes that his attitude has changed since he was released on bail. It is significantly mitigating thathe has done everything possible to prove that he has substantial potential to change his life.

While on bail, he secured employment. Heparticipated in extensive counseling. He became actively involved in his church and continued with his commitment to charitable work.He abided by all the terms of his bail. I acknowledge that Mr. Christopher’s unwavering commitment to rehabilitation for over a yearand his attempts to make amends are significantly mitigating factors. I also accept and agree with counsel’s submissions that a sentenceof any length in the penitentiary for this young man will specifically deter him from committing any more crimes in the future. [29] In addition to Mr.

Christopher’s personal circumstances, it is also a significantly mitigating fact that he entered pleas of guilty atthe first available opportunity after ensuring that all of the charges were dealt with in one jurisdiction. These pleas of guilty were genuinemanifestations of the sincerity of his remorse. It ensured that none of the victims had to be brought to court to face the rigours of a trial inaddition to their traumatic experiences.

Moreover, considering the number of charges in multiple jurisdictions, the pleas saved theadministration of justice significant resources in a time of crisis when a trial would have been indefinitely delayed due to Covid-19closures of the courts. C. Legal Analysis: [30] To arrive at a just sanction that balances these competing considerations of the aggravating circumstances of the offence and themitigating circumstances of this offender, I must consider the guiding sentencing principles and any similar sentencing precedents. i.

The purposes and principles of sentencing: [31] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [32]

Section 718.01 of the Criminal Code also provides that any sentence must be proportionate to the gravity of the offence and thedegree of responsibility of the offender. As a result, depending on the circumstances of the offence and the circumstances of theoffender, a Court may focus on specific principles of sentencing as the most important factors to guide the Court’s decision. [33] The one consistent theme throughout the case law is that bank robberies are extremely serious offences with particularlyvulnerable victims.

It is one of the few offences in the Criminal Code that carries with it the potential for a life sentence. As a result, thepredominant sentencing principles are protecting the public, general deterrence and denunciation. Please see: R. v. Wolynec, 2015ONCA 656. However, rehabilitation remains an important goal with any sentencing particularly in a case involving a youthful first timeoffender. ii. The principle of restraint: [34] Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. The Supreme Court of Canadain R. v. Lacasse, 2015 SCC 64 , [2015] S.C.J.

No. 64 at para 12 (S.C.C.) explained: The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be.In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral

blameworthiness of [page1103] the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, bothsentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice. [35] Courts is Ontario have been unequivocally clear that youth and the lack of criminal antecedents should weigh very heavily interms of tipping the scales towards a more lenient sentence.

Except for very serious offences or crimes of violence, the primaryobjectives when sentencing a first offender are considerations of individual deterrence and rehabilitation. However, there are someoffences, like bank robberies, that are so serious that a lengthy custodial sentence is required even for first offenders. In R. v. Brown,2015 ONCA 361 , [2015] O.J. No. 2655 (Ont.C.A.), the Court addressed the sentencing of an 18 year old first offender whocommitted a home invasion “marked by horrific violence”.

The Court emphasized that: (para 5) In our view, while individual deterrence and rehabilitation are the primary objectives in sentencing a first offender, theimportance and weight of other factors increase with the seriousness of the crime. This approach respects the fundamental principle ofsentencing stated in s. 718.2 of the Criminal Code: "a sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender". (para 7) The sentencing judge's description of the crime is apt.

General deterrence and denunciation had to be weighed heavily insentencing this serious violent crime. However, it was an error to say these factors had become "the primary consideration". The primaryobjectives in sentencing the youthful first-time offender remained individual deterrence and rehabilitation. In balancing the factors, thesentencing judge still had to impose the shortest term of imprisonment that was proportionate to the crime and the responsibilityof the offender, given his young age. [36] Similarly, in R. v.

Borde, (2003) 172 C.C.C. (3d) (Ont.C.A.), Justice Rosenberg emphasized at paragraphs 3 and 36 that: [36] However, this appellant was only 18 when he committed these offences. In my view, the trial judge did not give proper consideration tothe appellant's youth and that a first penitentiary sentence should be as short as possible. Aside from the gravity of the appellant's crimes, the overwhelming factor is his youth.

In my view, the trial judge erred in principle infocusing almost exclusively on the objectives of denunciation and general deterrence, given the appellant's age and that this was his firstadult prison sentence and his first penitentiary sentence. The length of a first penitentiary sentence for a youthful offender should rarelybe determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to apenitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest sentence will achieve the relevantobjectives.

The trial judge's repeated reference to the need to send a message and his statement that the sentence was meant to deterothers who resort to guns make it clear that general deterrence and to a less extent denunciation determined the length of the sentence. Inmy view, this error led the trial judge to impose an excessive sentence for the aggravated assault. [37] In order to ensure that I sentence Mr. Christopher to the shortest period of incarceration that fairly achieves all of the sentencingobjectives, it is essential to review any similar authorities that have considered the appropriate sentence range. iii.

The principle of parity: [38] Subsection 718.2(

a) of the Criminal Code codified the long standing principle of parity that: A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances [39] Parity is an important and laudable objective, but each individual case is often so unique that it is difficult to find similar facts.Ultimately, considering the unfortunately countless ways to commit any offence, the distinctive victim impact and the individuality ofeach offender, it is very challenging to find comparable cases. As Chief Justice Lamer stated in R. v.

M. (C.A.), (SCC),[1996] 1 S.C.R. 500 at para 92 (S.C.C.): ...Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similarcrime will frequently be a fruitless exercise of academic abstraction. [40] Both counsel and the crown provided numerous persuasive authorities to support their sentencing submissions.

While Ireviewed all of them, many of the cases were not helpful because of distinguishing facts, the positions advocated by counsel impactedthe outcome and/or the sentence was the result of a joint submission. [41] I found that many of the decisions relied on by counsel were distinguishable because the defendants’ offending behaviour weremotivated by desperation due to addictions, mental health issues or tragic personal circumstances. For example, in R. v. Fawcett, 2012ONSC 4462 , [2012] O.J.

No. 3696 (Ont.S.C.J.), the accused was a drug addict who invested a significant amount of time intreatment prior to his sentencing. Moreover, none of the cases had comparable financial losses or the sophistication of pre-planning,organization and forensic counter measures. [42] While some of the persuasive authorities referred to by counsel were helpful, I respectfully decline to follow a couple of thedecisions. In particular, the decision of R. v. Pouliot, [2011] B.C.J. No. 2561 (B.C.Prov.Ct).

The accused plead guilty to ten robberies ofnine financial institutions and a knife point robbery of a cab driver who he also pepper sprayed. Mr. Pouliot was 25 years old, with noprior record and he was desperate for money to fund a fentanyl addiction. In a very brief judgement with little discussion about theapplicable sentencing principles or the reasons for this remarkably lenient disposition, the Court sentenced the accused to 3 ½ years. I amnot persuaded that this decision adequately balanced the competing considerations especially denunciation. Similarly, I did not find R. v.DeSilva, [2018] B.C.J.

No. 3089 (B.C.S.C.) to be persuasive or a few of the other authorities cited by counsel, particularly the oldercases that considered the availability of a conditional sentence.

[43] Similarly, most of the crown’s cases did not have comparable facts. The precedents were distinguishable because the offendershad criminal antecedents or other outstanding charges, or the offences were more violent or involved the use of weapons. Notably, noneof the cases relied on by the crown supported the upper end of the range of seven years except one case from Alberta. [44] The Crown singled out the decision of R. v. Vogelsang, [2019] A.J.

No. 1371 (Alta.C.J.) as an authority to support of a sentenceof six and a half years because, like this case, the offender had no record and committed similar bank robberies. Although there are somesimilarities with this case, there are important differences. [45] Mr. Vogelsang was fifty-three years old. He was not a youthful first offender and he acted alone. In addition, the Court did notappear to consider or even refer to the principle of restraint in the reasons.

Perhaps, this important consideration was not addressedbecause the accused had already been sentenced to a penitentiary sentence in another province for the first series of bank robberies thatwere a part of the same spree. In addition, despite many positive traits, the Court emphasized that because of the “offender’s narcissistictendencies”, “it is reasonable to expect that a significant period in custody will assist him in overcoming these tendencies”. Finally, theCourt stated that the Alberta Court of Appeal has found that “the starting point for robbery of this kind is four years”.

There is no similarbinding authority in Ontario. As a result of all of these factors, I did not find this authority to be persuasive. [46] I am not aware of any binding legal precedent that sets out a customary or suggested sentencing range for bank robberieswithout weapons or physical violence. Ultimately, after reviewing dozens of decisions, I found that sentences in Ontario variedconsiderably depending on a myriad of factors including the positions advocated for by counsel and the crown. As the Ontario Court ofAppeal succinctly explained in R. v. Arsenault, [2006] O.J.

No. 4098 at para 9 (Ont.C.A.) there is a broad range of sentences for thesetypes of offences because, “while robbery is always a serious offence, there are degrees of seriousness”. [47] The only decision that offered some guidance in terms of a suggested sentence range was Justice West’s decision in R. v. T.W.,[2010] O.J. No. 3557 at para 12 and 13 (Ont.C.J.) After reviewing various authorities, His Honour observed that: Sentencing authorities for multiple bank robberies carry a wide disposition range with the individual facts of each case beingdeterminative.

The jurisprudence that I am aware of indicates a range of sentence for bank robberies from fifteen months to tenyears, relating to note passing to take down robberies involving the use of imitation weapons or firearms. It is clear that anysentence must focus on the protection of the public by the imposition of a significant penalty that denounces this conduct and separatesthe offender from the law-abiding community. At the same time, the sentence must be individualized, as well as reflect and encourage asmuch as possible any apparent rehabilitative prospects.

The maximum sentence for offences of this nature is life, indicating Parliament's view of their gravity. In this case, the aggravatingfeatures discussed by the Crown and apparent in the facts require, in my view, an emphasis on protection of the public by means of itsattendant principles, including deterrence, denunciation and separation. Consequently, a significant penitentiary sentence is necessaryand warranted. [emphasis mine] [48] Although it is obvious that a penitentiary sentence is both necessary and warranted in this case, where Mr.

Christopher’ssentence should fall on the broad spectrum of varying sentences discussed in the authorities requires carefully balancing the competingconsiderations. [49] It is not surprising that it is almost impossible to find a precedent involving such a young man, with no record, from a goodfamily who committed such serious premeditated crimes with substantial victim impact that resulted in so much financial loss to thebanks that has not been recovered by the police. Nevertheless, the following judgements were instructive: R. v. Thompson, 2008 BCCA 350 , [2008] B.C.J.

No. 1736 (B.C.C.A.): He plead guilty to eleven counts of robbery. Theoffences were committed over a period of three months and involved robberies of tellers in financial institutions. The robberies generallyinvolved notes threatening violence, including the use of a knife, a syringe, a gun and a bomb. At the time of sentencing, the accused wasa thirty-year-old drug addict with no significant criminal record. He had a troubled past, and was infected with Hepatitis and HIV. Heexpressed remorse and was co-operative with police.

The Court of Appeal reduced his sentence from seven and a half years to six yearsbecause the trial court failed to give due weight to his potential for rehabilitation. R. v. Castonguay, [2010] O.J. No. 963 (Ont.C.J.): He plead guilty to 8 bank robberies that involved passing notes to tellers without anyweapons or threats of violence. He was not masked and did nothing to conceal his identity. In total, he stole $16,797.00. He wascooperative with the police. He had a significant criminal record. He was on probation at the time of the offences and unlawfully at largefrom an intermittent sentence.

At forty-two years old, he was in recovery from alcohol abuse and drug addictions. He led a stableproductive life. He was married, he had long positive work history and very supportive friends and family. Inexplicably, he relapsed andlost everything. The robberies were a spree of crimes to get money to support his addictions. After he was arrested, he went intorecovery again and was doing remarkably well by the time of the sentencing. The Court was inundated with letters of support. He wassentenced to six years incarceration. R. v. Bowden, [2012] O.J.

No. 1873 (Ont.C.J.): The accused had a dated, unrelated record but with multiple convictions and he sufferedwith serious physical ailments. He suffered a cardiac arrest while in pre-sentence custody which required a number of surgeries. Thepresentence report was noted to be “unremarkable”. He plead guilty to five bank robberies without weapons, but he threatened thevictims that he had a gun. The offences were motivated by financial pressures after losing his job. The court agreed with the crown’sposition and sentenced him to six years less pre-trial custody. R. v. Woodley, [2012] O.J.

No. 4713 (Ont.C.J.): (from the headnote) Mr. Woodley plead guilty to robbery while armed with a firearmand disguise with intent. Woodley participated in a series of convenience store robberies with one or more accomplices over a five-dayperiod. One accomplice had a firearm. The intruders' faces were covered during the robberies. Some of the victims were kicked orpunched, but it was not alleged that Mr. Woodley was responsible. Mr. Woodley was arrested and gave a police statement admitting hisparticipation. Like Mr. Christopher, Mr. Woodley was motivated by greed. He was eighteen.

His record contained two drug-relatedentries as a young offender. He expressed remorse and had community support. He was sentenced to four years and one-monthincarceration. Since he had already served a significant amount of time in presentence custody, he was also sentenced to three years of

probation to assist with his rehabilitation and reintegration into society. R. v. H.A., [2020] O.J. No. 1074 (Ont.S.C.J): the accused was found guilty after trial of a number of robberies while disguised and usingan imitation firearm. The places robbed were convenience stores and a bank. During the sentencing process, he also plead guilty to otherrobberies. All of the offences involved planning and organization. The victims were traumatized. He was between the ages of eighteenand twenty-one when he committed the crimes.

He had no record, but he was out on bail for some of the offences when he committedmore robberies. He had a serious drug addiction. He had very positive character letters from friends, his employer and his family. Thecourt imposed a global sentence for four robberies and other offences of four and a half years less pre-sentence custody. [50] The only cases that supported the higher end of the sentence range proposed by the crown involved offenders with a record ormore serious robberies with weapons or more violence.

Concomitantly, sentences of less than five years involved offenders motivated bydesperation or the offences lacked the sophistication of these robberies and none of them had this amount of economic loss coupled withsignificant victim impact. These cases, of course, are intended to provide me with a guideline as to the range of sentences. I can order asentence outside these ranges if the unique facts justify it. As the Supreme Court of Canada recently acknowledged in R. v. Friesen, 2020SCC 9 , [2019] S.C.J.

No. 100 at para. 37 (S.C.C.): This Court has repeatedly held that sentencing ranges and starting points are guidelines, not hard and fast rules. Appellate courts cannottreat the departure from or failure to refer to a range of sentence or starting point as an error in principle. Nor can they intervene simplybecause the sentence is different from the sentence that would have been reached had the range of sentence or starting point beenapplied.

Ranges of sentence and starting points cannot be binding in either theory or practice, and appellate courts cannot interpret orapply the standard of review to enforce them, contrary to R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199, at paras. 116-18 and273. As this Court held in Lacasse, to do so would be to usurp the role of Parliament in creating categories of offences. iv. Should Mr. Christopher’s sentence be similar to the sentences for the youth co-accused: [51] Mr. Christopher had two sixteen-year-old accomplices.

They appeared in front my brother Judge, Justice West, and plead guiltyfor their roles in these offences. Q.W. plead guilty to four robberies and T.C. plead guilty to two robberies. Neither of these youths hadcriminal records and like Mr. Christopher, they attributed these offences, in part, to negative peer associations. In an unreported decision,R. v.

Q.W. and T.C., that was released on March 13, 2020, Justice West sentenced these youths at paras. 69 and 70 as follows: In all of the circumstances of this case it is my view an appropriate and proportionate sentence for Q.W. would be 18 months less the 3months credit I have assessed for pre-trial custody credit and Downes credit, leaving a sentence of 15 months, broken down into 10months of open custody and 5 months of community supervision to be followed by 12 months of probation.

In all of the circumstances of this case it is my view an appropriate and proportionate sentence for T.C. would be 13 months less the 18days of credit I have assessed for pre-trial custody credit, leaving a sentence of 12 months and 12 days, broken down into 8 months andeight days of open custody and 4 months and 4 days of community supervision to be followed by 12 months of probation. [52] Obviously, the predominant principles of sentencing and the available sentence ranges are dramatically different for youths andadults. In R. v. Wobbes, [2008] O.J.

No. 2999 at para 73 (Ont.C.A.), the Court of Appeal observed that: The primary difficulty the appellant faces in relying on the parity argument is that the co-accused were young offenders sentenced underthe regime established under the Youth Criminal Justice Act S.C. 2002, c. 1 ("YCJA") -- a regime completely different from thatestablished under the Criminal Code. Most notably the sentencing principles of general deterrence found in s. 718(1)(

a) of the CriminalCode are not applicable under the YCJA. Furthermore, the YCJA places mandatory restrictions on the use of custodial sentences. [53] In addition, in R. v. Uniat, 2015 ONCA 197 , [2015] O.J. No. 1436 at para 6 (Ont.C.A.) the Court of Appeal explainedthat: The principle of parity does not require equivalent or near equivalent sentences to be imposed on all participants in a joint venture,irrespective of their role in the offence, their backgrounds and circumstances, and the manner in which their participation in the offencesis resolved by the courts. [54] Notably, Mr.

Christopher is significantly older and presumptively more mature than his sixteen-year-old co-accused. Thepredominant sentencing principles are different, and I must consider general deterrence when dealing with an adult. Moreover, themaximum available penalty for an adult is a life sentence compared to the maximum available penalty of three years incarceration for ayouth. [55] While I am cognizant of the differing sentencing principles and the age disparity, the crown is seeking a sentence for Mr.Christopher, at the higher end of the range, of seven years incarceration. Mr.

Christopher will be serving his sentence in much harsherconditions than the youths, in an adult penitentiary. While parity with the youth sentences is not necessary or expected and I recognizethe differing sentencing considerations between youths and adults, a six and a half or seven year sentence would be unduly punitive. Itwould fail to recognize the principle of restraint or Mr. Christopher’s potential for rehabilitation and result in a sentence that focuses onlyon the principles of denunciation and deterrence. v. Totality: [56] Other than the two offences in Durham, Mr.

Christopher committed separate and distinct offences in different jurisdictions ondifferent dates. Consecutive sentences for each offence would send a very strong message that an offender will not benefit from a lessersanction for committing multiple offences in a short period of time. Each individual bank robbery merits a penitentiary sentence in thiscase.

However, if I were to sentence him to four consecutive penitentiary sentences, the total sentence would far exceed the range soughtby the crown. [57] As noted, one of the foundational principles of sentencing is proportionality that: "[a] sentence must be proportionate to the

gravity of the offence and the degree of responsibility of the offender.” Simply stated, the punishment must fit the crime. It must reflectthe gravity of the offence and the moral blameworthiness of the individual offender. An important means to ensure that the overallsentence is proportionate is to consider the principle of totality.

Section 718.2(

c) of the Criminal Code requires me to consider that“where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. [58] In R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 42 (S.C.C.), Chief Justice Lamer explained therationale underlying the totality principle and its nexus with proportionality: [58] In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the"totality principle".

The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences formultiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.

As D.A.Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation tothe offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutivesentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate".

Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, [4th ed. (Toronto: Butterworths, 1994)], at pp.44-45: The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate"just and appropriate".

A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above thenormal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushingsentence" not in keeping with his record and prospects [59] The overall sentence must be fair to the public who need protection from these crimes, and it must be fair to the offender. Theperiod of incarceration must reflect all of sentencing goals, but the combined sentences cannot deprive Mr.

Christopher of hope for thefuture or unjustifiably diminish his prospects for rehabilitation. As a result, it is quite challenging to attribute concurrent or consecutivesentences that truly reflect the seriousness of each individual crime and the unique circumstances of this offender. [60] In R. v. R.B., 2013 ONCA 36 , [2013] O.J.

No. 278 at para. 30 (Ont.C.A.), the Court of Appeal described the bestmethod to determine a fit sentence when sentencing an offender for multiple crimes: The proper approach to applying the principle of totality on sentencing is to first identify the most serious part of the accusations oroffences made against the person that resulted in the criminal offenses he or she was charged with. Next, the court is to determine thetotal sentence to be imposed, and then to impose sentences with respect to each offence that they add up to the total sentence.

In doing so,the sentence for each offence must properly reflect the most serious part of the overall criminal conduct and must reflect the propersentence for that offence. At this stage the court will then decide whether a particular sentence should be consecutive or concurrent to theother sentences imposed. [61] Finally, I am satisfied that all of the prerequisites of

section 725 of the Criminal Code have been met for me to consider theadditional aggravating facts with respect to the other robberies when sentencing Mr. Christopher. D. The sentence: [62] After considering all of the principles of sentencing, the guiding legal precedents and the aggravating and mitigating factors, Ihave decided that a fit sentence that balances all of these considerations is four years and six months incarceration in the penitentiary.This is a lenient sentence in light of the aggravating facts.

However, it is the least onerous sentence that is consistent with the purposesand principles of sentencing because of Mr. Christopher’s youthfulness, his lack of any record, his exemplary conduct since theseoffences and the additional deterrent impact of a restitution order. [63] While it is difficult to choose the most serious offence because each of these robberies was very serious, the lengthiest sentenceshould be attributed to the robbery in Ajax to reflect the seemingly irremediable psychological harm that he caused to these innocentvictims who were brave enough to share their experiences with the Court.

In addition, the sentence for the bank robbery in Barrie shouldbe consecutive to reflect the large financial loss of more than $43,000 that will not be recovered by the bank. Finally, the sophisticationof these offences involving the uses of disguises and forensic counter measures should also attract a consecutive sentence. [64] Before setting out the sentences on each count, I have to consider whether the fit sentence should be reduced to take intoaccount the pretrial custody and the fact that Mr. Christopher has spent sixteen months on stringent bail terms that have restricted hisliberty. i.

Downes credit [65] There is no issue that I can subtract the period of time that Mr. Christopher spent in pre-trial custody from this overall sentence.Counsel urged me to also give Mr. Christopher substantial credit for the time that he has spent on house arrest and restricted fromaccessing the internet. In contrast, the crown submitted that it does not seem that the house arrest conditions have been particularlyonerous for this young man so he should not be given any credit for the time spent on bail.

The author of the presentence report notedthat while on bail: p. 4: Further, since his arrest he has completely distanced himself from all negative influences and has reconnected with old friends, all

of whom are positive contributing members of society. Additionally, he has found his way back to his Church and has beenparticipating in a bible study program for young men, counselling, along with a “Friday night” club where various sports are runout of the gym. p. 4: Since the subject was released on bail, he has been working part time in the field of residential condo painting. [66] Mr. Christopher has taken great strides towards rehabilitation while on bail. He has sought out counseling, secured a job andtried to prove that he has significant potential to be a contributing member of society in the future.

He made the best of a difficultsituation but that does not mean that his house arrest did not take a toll on him emotionally and psychologically. More than a year ofbeing under strict house arrest may have benefited him in terms of getting back on the right path in life but, at such a young age, it hasbeen undoubtedly challenging for him even with the occasional outings. [67] In addition to the house arrest terms that had limited exceptions, Mr.

Christopher was bound by very restrictive and seeminglyunnecessary terms that he was: • not to possess any cellphone, pager or personal digital assistant except while in the presence of your sureties or Pete Nojd; and • not to possess or use any computers or any other device that has access to the internet or other digital network except while in thepresence of your sureties or Pete Nojd; [68] Mr. Christopher was cut off from any social media which is a life line for many young people.

For more than a year, he wasrestricted from internet searches, any kind of e-learning or on-line gaming, cell calls, texting or any virtual contact with anyone for anyreason unless he was in the presence of one of three people. In a modern society where the lives of young people revolve around socialmedia, accessing the internet, their computers and their cell phones, and considering the nature of these offences, these conditionscombined with the house arrest were unnecessarily alienating and unduly arduous. [69] In the recent decision of R. v. Zora, 2020 SCC 14 , [2020] S.C.J.

No. 14, the Supreme Court of Canada disparaged thepractice of ordering “routine” terms of bails and directed that the bail system must be guided by the principle of restraint. The Court citedcommon conditions that cover a broad range of activity like “prohibiting cellphone use and internet access” (at para. 23). At paragraph 6,Justice Martin stated that bail terms have to be “clearly articulated, minimal in number, necessary, reasonable, least onerous in thecircumstances, and sufficiently linked to the accused's risks regarding the statutory grounds for detention in s. 515(10).” These overlybroad terms of Mr.

Christopher’s bail were not consistent with the principle of restraint. [70] A number of judgements have referred to the absence of a bail variation request by defence counsel or the defendant whenconsidering whether to grant credit for time spent on bail conditions. While that may be a consideration depending on the facts of a case,the Supreme Court in R. v.

Zora, supra at para 92, reminded all participants in the criminal justice system that our actions are to beguided by the presumption innocence and that “bail is a dynamic, ongoing assessment, a joint enterprise among all parties involved tocraft the most reasonable and least onerous set of conditions, even as circumstances evolve”. [71] I do not know why these conditions restricting access to cell phones, computers and the internet were imposed when Mr.Christopher was released from custody.

Nevertheless, I find the cell phone and internet terms were unduly restrictive and excessiveparticularly in light of the fact that Mr. Christopher was initially bound by a complete house arrest unless he was supervised by one ofthree people. [72] In R. v. Downes (2006), (ON CA), 205 C.C.C. (3d) 488 (Ont. C.A.), Justice Rosenberg held that “time spentunder stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance.” (Seepara. 33).

In addition, he noted that: (para 29) Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent withthe fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character thanactual incarceration.

Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of aconditional sentence under s. 742.1 of the Criminal Code. (para 36) Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. Inthe end, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge.

Thatfactor must be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in agiven case. [73] Finally, the Court summarized the guiding considerations when deciding whether to give credit for time spent on bail conditionsat paragraph 37: In

summary, credit for pre-trial bail conditions should be approached in the following manner: Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor. As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence. The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle. The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is noformula that the judge is required to apply.

The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringencyof the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment andactivity. Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge withinformation as to the impact of the conditions.

If there is a dispute as to the impact of the conditions, the onus is on the offender toestablish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code. [74] The crown referred to numerous decisions wherein courts have declined to give an offender credit for time spent on bail.Undoubtedly, a sentencing judge is entitled to decline to give credit for time spent on bail conditions if the terms were not particularlyonerous or there is no evidence of hardship or deprivation. [75] In R. v. Ijam, 2007 ONCA 597 , [2007] O.J.

No. 3395 (Ont.C.A.), the Court of Appeal distinguished the Downes caseand upheld a trial judge’s decision declining to give credit for the time the offender spent on pre-trial release. The Court succinctlyreminded trial courts that “bail is not jail”. Nevertheless, an offender’s productive use of time spent on bail speaks to his significantpotential for rehabilitation and it is nonetheless a mitigating factor. As Justice Watt observed in R. v. Adamson, 2018 ONCA 678, [2018] O.J.

No. 4104 at para 106 (Ont.C.A.), “it is beyond controversy that prior decisions of this court authorize a sentencingjudge to take into account, as a relevant mitigating circumstance on sentence, time spent under stringent bail conditions”. Mr.Christopher’s productive and positive conduct while on bail is substantially mitigating. [76] I accept that the bail conditions assisted with Mr. Christopher’s rehabilitation, but they were also punitive for him. He abided byterms that were stricter than most conditional sentences.

I accept that he felt isolated from positive peers at times and his liberty wassubstantially curtailed even though he made the best out of a challenging situation. [77] Mr. Christopher spent 13 days in pretrial custody which he will be credited at 1 for 1.5 for a total of 20 days. I will also givehim credit of 3 months and 10 days for the 16 months that he spent on house arrest and the other restrictions thereby reducing the overallsentence by 4 months. The pre-trial custody to be reflected on his record is to be noted as 4 months. ii.

Restitution: [78] In addition to the period of incarceration, the Crown requested a stand alone restitution order in the amount of half of$91,743.00 as a part of the sentence since Mr. Christopher committed each offence with a partner. [79] Mr. Christopher and the two other youths profited substantially from their crimes and the banks suffered significant financiallosses. I have absolutely no idea what these three accused did with almost $92,000 in less than five weeks. Mr.

Christopher and one ofthe youths were arrested within four days of the most lucrative bank robbery that amounted to losses of more than $43,000. Counselsubmitted that all of the money is gone. Whatever money was not spent, was left somewhere that was accessible to other unsavorycharacters and there is none left. It is unfathomable that two teenagers and a very young adult managed to spend all or even part of thatmoney in such a short period of time without, at the very least, purchasing some assets with their ill gotten gains or hiding some of it forthemselves.

That being said, all that I know is that there is no money available to make restitution currently. [80] Even though the crown has proven that the victims suffered quantifiable losses, that does not mean that I should reflexivelyorder restitution. I have to consider the impact of the order on Mr. Christopher and the totality of the overall sentence. In R. v. Castro,2010 ONCA 718 , [2010] O.J.

No. 4573 at para 23, 24 and 27 (Ont.C.A.), the Ontario Court of Appeal provided trial courtswith guidance as to the various considerations before making a restitution order: A restitution order should not be made as a mechanical afterthought to a sentence of imprisonment. Care must be taken not to simply adda restitution order to a sentence of imprisonment which, in itself, is a fit punishment for the crime, as this can amount to excessivepunishment and offend the totality principle…. (The Court reviewed a SCC decision and summarized some additional considerations): 1.

An order for compensation should be made with restraint and caution; 2. The concept of compensation is essential to the sentencing process: (

i) it emphasizes the sanction imposed upon the offender; (ii) it makes the accused responsible for making restitution to the victim; (iii) it prevents the accused from profiting from crime; and (iv) it provides a convenient, rapid and inexpensive means of recovery for the victim; 3. A sentencing judge should consider: (

i) the purpose of the aggrieved person in invoking s. 725(1); (ii) whether civil proceedings have been initiated and are being pursued;

and (iii) the means of the offender. The Court went on to find that: Reviewing courts have, however, consistently held that no single factor is itself determinative of whether a compensation order should begranted and that the weight to be given to individual considerations will depend on the circumstances of each case. Thosecircumstances include two considerations I wish to emphasize: the nature of the offence and, when money has been taken, whathas happened to the money. [81] When considering Mr.

Christopher’s ability to pay restitution, I can rely, in part, on the fact that the proceeds of these crimesare still unaccounted for in any way. In Castro supra, at paras 34 and 35, the Ontario Court of Appeal observed that: Ability to pay must take into consideration what disclosure has been made respecting where the money is or has gone. Depriving theoffender of the fruits of his crime is one of the overarching goals of making a restitution order: see Working Paper 5 of the LawReform Commission of Canada, October 1974, cited with approval by Laskin C.J. in Zelensky at pp. 592-593.

In cases of theft, robbery,fraud, breach of trust or the like, I see no reason why the court should accept an offender's bald assertion that he or she has no ability tomake restitution because the money "is gone" when no evidence is proffered in support of this assertion. When the victims can clearlyestablish that "the replacement value of the property" under s. 738(1)(

a) is the amount of money taken, surely it is the offender assertingthat he or she has no ability to make restitution who is in the best position to provide transparency concerning what has happened to thatmoney. A bald assertion that the money is gone should be given no weight. Similarly, when the location of the money illegally obtainedby the offender is unknown, the sentencing judge is entitled to take that fact into account with respect to ability to pay in making arestitution order: see e.g. R. v. Williams (2007), (Ont. S.C.), per Hill J. at para. 41.

To summarize, a restitution order is simply part of the determination of an overall fit sentence, and general sentencing principles apply.While consideration of the offender's ability to pay and the impact of a restitution order on an offender's rehabilitation are factors to beconsidered, the weight to be given to these factors will vary depending on the nature of the offence and the circumstances of theoffender. When the offence involves a breach of trust, a primary consideration is the effect on the victim; rehabilitation is a secondaryconsideration.

Furthermore, consideration of the ability to pay includes the ability to make payment from the money taken as a source ofrestitution. [82] The provisions in the Criminal Code with respect to restitution orders were amended in 2015. Following a conviction, section737.1(1) of the Criminal Code requires “in addition to any other measure imposed on the offender, the Court shall consider making arestitution order”.

Section 739.1 of the Criminal Code was added and specifically states that “the offender’s financial means or abilityto pay does not prevent the court from making an order under

section 738 or 739.” [83] Despite the wording of the amended sections, in the recent decision of R. v. Robertson, 2020 ONCA 367 , [2020] O.J.No. 2558 at para 8, the Ontario Court of Appeal cautioned that: While the offender's ability to make restitution is not a precondition to the making of a restitution order, it is an important factor thatmust be considered before a restitution order is imposed. A restitution order made by a sentencing judge survives any bankruptcy of theoffender: Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 178(1)(a). This means it is there for life.

A restitution order is notintended to undermine the offender's prospects for rehabilitation. This is why courts must consider ability to pay before imposing such anorder: Castro, at paras. 26-27; R. v. Popert, 2010 ONCA 89, 251 C.C.C. (3d) 30, at para. 40, citing R. v. Biegus (1999), (ON CA), 141 C.C.C. (3d) 245 (Ont. C.A.), at para. 15. It is not enough for the sentencing judge to merely refer to or be aware ofan offender's inability to pay. The sentencing judge must weigh and consider this: Biegus, at para. 22.

The Court went on to find at paragraph 11 that: While the sentencing judge's reasons explain how she calculated the amount of the restitution orders (and she did so carefully), they donot contain any analysis of the appellant's ability to make restitution or of the impact of the orders on his prospects for rehabilitation.During the appellant's counsel's sentencing submissions, the sentencing judge inquired whether the appellant had "ever worked".Respectfully, however, she did not conduct a meaningful inquiry into the appellant's ability to pay and the impact of the restitution orderson the appellant's prospects for rehabilitation.

In failing to do so, she erred in principle. [84] In the unique circumstances of this case, with so much stolen money unrecovered, a restitution order is an important andessential part of the penalty. Incarceration alone does not adequately reflect the aggravating features of these crimes. Nevertheless, Mr.Christopher did not commit these robberies alone. At least two other individuals were involved and profited from these crimes.

It wouldbe unfair to order him to pay restitution for the total losses when he was not solely responsible for the offences. [85] For the robberies that were committed up to and including March 4th when T.C. was arrested, there were potentially threepeople who were sharing the profits from these crimes: Michael Christopher, Q.W. and T.C. While Mr. Christopher may have onlycommitted these offences with one or the other or both of these two young persons at a time, as part of robbery ring, the proceeds from the first three bank robberies should be divided into three.

However, after March 4th when T.C. was arrested, the only evidence is that Mr. Christopher was committing these offences with Q.W. and no one else. As a result, the proceeds of the crimes from March 6th and March 7th ought to be divided in half as opposed to one third. [86] In addition to attributing the proceeds fairly, I have to be cognizant of Mr. Christopher’s ability to pay the restitution and ensure

that the restitution order does not impair his prospects for rehabilitation once he is released from custody. Mr. Christopher has a high school education and he appears to have a future working in the trade industry. He was employed shortly before these offences were committed and he has been steadily employed while on bail. He has a strong, caring network of supporters who are prepared to guide him along his path towards rehabilitation. He certainly has potential for future employment despite these convictions.

He does not struggle with any addictions and he does not have any dependents. [ 87 ] A reasonably attainable restitution order will not impact Mr. Christopher’s future prospects to be a positively contributing member of society. Quite the contrary, a restitution order will serve as a constant reminder to Mr. Christopher that crime really does not pay. In addition, I am satisfied that Mr. Christopher will have the ability to pay at least a percentage of the requested restitution.

The order will be structured in a manner that ensures that there are realistic annual payments. [ 88 ] As noted, there were two other accused who profited from these crimes. I will attribute one third of the total losses for the first three offences and one half for the last two offences to Mr. Christopher. While I find that Mr. Christopher will have some ability to pay, I don’t anticipate that he will be able to pay the full amount of the requested restitution even with a payment plan. In addition, I do not want an overwhelming restitution order to interfere with his prospects for rehabilitation.

Finally, I have considered that the victims are major financial institutions as opposed to individuals or a small business. The banks have not recovered the losses from any insurance companies. [ 89 ] Accordingly, to balance the considerations of his anticipated means to pay, ensuring that his rehabilitation is not negatively impact and ensuring that he is held accountable for these crimes, I will order that Mr. Christopher repay 50% of his part of the profit from these crimes.

The restitution order will be spread over a significant period of time in the hopes that he will make a concerted effort to right at least part of what he did wrong. [ 90 ] The total financial losses from each robbery ( rounded to the nearest dollar amount ) are listed in the first column, the second figure represents one third of that loss for the first three robberies and one half of the losses for the last two robberies committed with Q.W.

The final column is 50% of each amount: Scotiabank at 999 King Street West in Hamilton: $15700 $5233 $2617 CIBC at 27 Main Street in Grimsby: $17022 [1] $5674 $2837 CIBC at 9641 Jane Street in Vaughan: $553 $184 $92 Scotiabank at 1947 Ravenscroft Rd in Ajax: $15,089 $7544 $3772 CIBC at 600 Young St. in Barrie: $43879 $21940 $10970 Total restitution: $20,288 [ 91 ]

Section 739.2 of the Criminal Code mandates that “a court shall require the offender to pay the full amount specified in the order by the day specified in the order, unless the court is of the opinion that the amount should be paid in instalments, in which case the court shall set out a periodic payment scheme in the order”. As a result, Mr. Christopher is ordered to pay restitution in the amount of $20,288 within 7 years of his release from custody at a rate of not less than $2898 annually.

Even with a modest income, considering his lack of dependents and his future employment prospects, $242 a month is an amount that should not interfere in any way with Mr. Christopher’s prospects for rehabilitation. E. Conclusion: [ 92 ] This is a tragedy brought on by greed and youthful idealization of thrill seeking crimes. It is tragic because of the psychological and emotional harm that was needlessly inflicted on innocent victims and the large financial losses to the banks.

It is tragic because a young man with no record chose to commit incredibly serious offences despite having a positive, supportive upbringing and significant potential. He has devastated his family and destroyed this part of his young life. Hopefully, this sentence will send a message to like- minded offenders and the general public that crime doesn’t pay. The message should be clear that even a youthful first offender with an otherwise unblemished background who commits bank robberies will go to the penitentiary. [ 93 ] While I could have sentenced Mr.

Christopher to a longer period in the penitentiary consistent with the lower end of the range proposed by the crown to reinforce the objectives of denunciation and deterrence, I am convinced that he has significant potential for rehabilitation and a shorter penitentiary sentence will specifically deter from further offending behaviour. Accordingly, he should receive the benefit of the shortest possible period of incarceration that will achieve all of the sentencing objectives.

This sentence is intended to punish him but still give him hope for the future, to inspire him to continue to rehabilitate himself and to encourage him to choose a better path in life once he is released from jail. [ 94 ] The sentence will be as follows: Count 3 Ajax Scotiabank 3 years incarceration Count 5 Barrie CIBC 1 year incarceration consecutive Count 11 Grimsby CIBC 1 year incarceration concurrent Count 12 Wearing a mask 4 months PTC + 2 months consecutive Count 1 Hamilton Scotiabank 1 year concurrent Total sentence: 4 months PTC + four years and 2 months (50 months)

[ 95 ] There will be an order pursuant to

section 743.21 of the Criminal Code prohibiting contact while in custody with: Tina Edwards, Rasha Fraij, Regina Kiehne, Kim Neal, Patricia Patozzi, Shaini Amirthalingham, Sanitha Bhashyam, Tyler Blackburn, Susan Downey, John Ezechia, Thelma Mhakayakora, Monisha Nathan Christina O’Grady-Rao, Saima Paikar, Keisha Petire, Gurman Phoot, Ashley Wismayer, Q.W. (youth co-accused) and T.C. (youth co-accused) [ 96 ] Pursuant to

section 109 there will be a weapons prohibition for life. There will be DNA orders and a forfeiture order of all items seized upon Mr. Christopher’s arrest and all items seized during the course of any searches as a result of this investigation. All of these offences predated the change in legislation in July of 2019, as a result, there will be no victim fine surcharges.