



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gray, 2021 ONCA 86

DATE: 20210210

DOCKET: C67523

Pepall,
    Tulloch and Harvison Young JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Anthony
    Gray

Appellant

Ewan Lyttle and Meaghan McMahon, for
    the appellant

Jeremy Tatum, for the respondent

Heard: August 20, 2020 by video conference

On appeal
    from the sentence imposed on September 20, 2019 by Justice Norman D. Boxall of
    the Ontario Court of Justice.

Tulloch J.A.:

A.

INTRODUCTION

[1]

The appellant seeks leave to appeal his sentence,
    and if leave is granted, appeals his sentence imposed for his convictions for armed
    robbery and wearing a disguise with intent to commit an indictable offence.

[2]

The appellant pleaded guilty. He was sentenced
    to six months imprisonment for the robbery count, three months imprisonment for
    the wearing a disguise with intent count, to be served concurrently, and 12
    months probation.

[3]

The offences were committed when the appellant
    was 21 years old. At the time of sentencing, the appellant was 24 years old and
    a first-time offender without any prior criminal record. His sentence appeal is
    based on two main grounds.

[4]

First, the appellant submits that the sentencing
    judge failed to properly apply the principles relevant when sentencing Indigenous
    offenders, set out in
R. v. Gladue
, [1999] 1 S.C.R. 688, as the judge
    permitted denunciation and general deterrence to improperly overwhelm the
    analysis. The appellant claims that this error led to the arbitrary conclusion
    that no jail sentence less than six months was appropriate in the
    circumstances.

[5]

Second, the appellant submits that there has
    been a new development in the law since the appellants sentencing, allowing this
    court to impose a conditional sentence on the robbery count. Due to
R. v.
    Sharma
, 2020 ONCA 478, 152 O.R. (3d) 209, leave to appeal granted, [2020]
    S.C.C.A. No. 311, a recent decision from this court striking down s. 742.1(c)
    of the
Criminal Code
, conditional sentences are now available for
    offences where the maximum penalty is 14 years or life imprisonment, including
    robbery. The appellant effectively argues that this development entitles him to
    a conditional sentence.

[6]

For the following reasons, I would not interfere
    with the sentence imposed. However, I would allow the appeal for the limited
    purpose of permanently staying the execution of the appellants remaining
    period of incarceration.

B.

FACTS

[7]

On August 5, 2016, at approximately 11:24 a.m., the
    appellant entered a branch of the Bank of Montreal in Ottawa. His face and head
    were covered by a shirt. He walked over to a teller, produced an eight-inch
    knife, and, while brandishing the weapon at the teller, demanded money. The
    appellant made these threats in the presence of other patrons, including a
    mother and her two young children. He managed to flee the scene with $5,000.

[8]

The robbery went unsolved for quite some time. On
    August 11, 2016, the police distributed a media release to try to identify the
    perpetrator of the robbery. However, it was not until January 2018, almost a
    year and a half after the robbery, that the appellant was arrested. At that
    time, the ex-girlfriend of the appellants brother identified the appellant,
    leading to his arrest.

[9]

In October 2018, the appellant pleaded guilty to
    the offences of robbery and wearing a disguise, two weeks before his three-day
    trial on November 13, 2018. A
Gladue
report and a pre-sentence report
    were prepared for the sentencing hearing, which took place in August 2019. The imposition
    of the sentence was adjourned to September 2019.

[10]

At the sentencing hearing, the appellant,
    through his lawyer, filed various materials documenting his positive attributes
    and post-plea rehabilitative steps. In addition, both the pre-sentence report
    and the
Gladue
report were presented to and relied on by the
    sentencing judge.

[11]

The Crown sought a global sentence of one-year
    incarceration, followed by probation.

[12]

The defence requested a sentence which the
    sentencing judge described as nuanced. They sought either a non-custodial or intermittent
    sentence on the robbery charge, and a conditional sentence followed by
    probation for the offence of wearing a disguise.

[13]

The defence pointed to the significant progress
    that the appellant had made since the offence; his work history; and the fact
    that at the time of the offence, he was affected by a drug addiction that he received
    treatment for by the time of sentencing. The appellant also had a close and
    supportive relationship with his mother. In addition, he was remorseful, had
    made full restitution, and was willing to participate in a sentencing circle, although
    the victims were not interested.

[14]

The sentencing judge imposed a sentence of six
    months incarceration for the robbery count and three months concurrent for
    the wearing a disguise count, followed by 12 months probation. He gave a very
    thorough decision in which he fully considered the applicable principles of
    sentencing. He recognized that as the appellant was an Indigenous offender, he
    had to be sentenced with reference to the
Gladue
principles and s.
    718.2(e) of the
Criminal Code
. The sentencing judge also observed that
    a fit and appropriate sentence must be guided by the fundamental principle that
    a sentence must be proportionate to the gravity of the offence and the degree
    of responsibility of the offender. He then specifically addressed the
    mitigating and aggravating factors and crafted a sentence which was responsive to
    the circumstances of the appellant. In arriving at what the sentencing judge
    deemed a fit sentence for the appellant on the robbery offence, he made the
    following observations:

There is no minimum sentence for robbery, so
    in - at least, in theory, I could consider a suspended sentence and a period of
    probation. Although a blended sentence of probation on the robbery and a
    conditional sentence on wearing disguise is theo - theoretically available, in
    my view, it would be an error in law to impose a conditional sentence on a
    lesser-related offence, and one cannot do this simply to avoid parliaments
    intention. A pure suspended sentence on - on both counts is - is theoretically
    available, but in my view, suspending sentence on both counts and just placing
    the accused on probation
would not address the
    seriousness of the offences, or the principles of sentences
; and, in
    fact, defence counsel has essentially conceded this by suggesting a blended
    sentence - includes a - a conditional sentence.



Its indicated there is no minimum sentence
    for robbery. However, I find that it would be an error in law to impose a
    suspended sentence and a period of probation,
given that
    this was a bank robbery, and it involved a weapon. Thus, the sentence must
    involve custody in - in some fashion
. Parliament has directed that it
    cannot be conditional, with respect to the robbery offence.
I might add that, if a conditional sentence was available for
    the robbery, I would seriously consider it;
in my view, specific
    deterrence is not a factor in this case, and there are many mitigating
    circumstances. And, deterrence, in some cases, can be met by a conditional sentence.
    However, Parliament has directed that a conditional sentence is not available
    for a robbery. [Emphasis added.]

[15]

Prior to the appeal hearing, the appellant introduced
    two motions for fresh evidence, dated June 17, 2020 and August 18, 2020. These
    motions seek to adduce evidence relevant to the appellants post-sentence rehabilitative
    efforts and steps taken to live a pro-social life. Both motions included the
    consent of the respondent to the admission of this fresh evidence. As a
    preliminary conclusion, I am satisfied that this evidence satisfies the
    criteria for the admission of such evidence set out in
Palmer v. The Queen
,
    [1980] 1 S.C.R. 759, at p. 775: see also
R. v. D.V.B.
, 2010 ONCA 291,
    100 O.R. (3d) 736, at para. 97, leave to appeal refused, [2011] S.C.C.A. No.
    207.

C.

ISSUES

[16]

The appellant effectively seeks leave to appeal
    his sentence on two bases:

1)

Did the sentencing judge err by failing to
    properly apply the
Gladue
principles and permitting denunciation and general
    deterrence to improperly overwhelm the analysis, leading to the arbitrary
    conclusion that no jail sentence less than six months was appropriate in the
    circumstances; and

2)

Given this courts recent decision in
Sharma
,
    is the appellant now entitled to a conditional sentence?

D.

ANALYSIS

(1)

Did the sentencing judge err by improperly permitting denunciation
    and general deterrence to overwhelm the analysis?

[17]

The appellant does not argue that the sentence
    was unfit. Instead, he submits that the sentencing judge erred in principle in his
    application of the
Gladue
principles, by overemphasizing the
    principles of denunciation and general deterrence. He argues that this error enables
    this court to alter the sentence on appeal.

[18]

He contends that, had the sentencing judge
    properly applied the
Gladue
principles, he would have more heavily
    considered restorative justice principles and imposed a lower sentence.

[19]

I disagree. The sentencing judge correctly
    weighed the relevant sentencing principles. He made proper reference to both the
    circumstances of the appellant and the
Gladue
principles as codified
    in s. 718.2(e) of the
Criminal Code
.

[20]

For this court to intervene in the sentence
    imposed, the appellant must establish that the sentence imposed is either
    demonstrably unfit, or that the judge made an error in law or principle that impacted
    the sentence. The seminal case of
R. v. Lacasse
, 2015 SCC 64, [2015] 3
    S.C.R. 1089, at paras. 10-11, 39-41, 44, 48-51, and 53, sets out the grounds upon
    which an appellate court may intervene and vary a sentence. Trial judges are
    afforded a wide discretion to impose what they deem to be an appropriate
    sentence. Sentencing is a fact-specific exercise, and each case must be
    considered contextually. This necessarily means that considerable deference is
    afforded to the sentencing judge.

[21]

Among the underlying principles that guide any
    sentencing analysis are proportionality and parity. However, when sentencing an
    Indigenous accused, the analysis must be informed by s. 718.2(e) of the
Criminal
    Code
. This section is a remedial provision requiring a unique method of
    analysis when determining a fit sentence for an Indigenous accused, as set out
    in
Gladue
.

[22]

When a judge crafts a sentence for an Indigenous
    accused, s. 718.2(e) requires them to consider

all available sanctions, other than
    imprisonment, that are reasonable in the circumstances and consistent with the
    harm done to victims or to the community  with particular attention to the
    circumstances of Aboriginal offenders.

[23]

Section 718.2(e) directs sentencing judges to
    pay particular attention to the circumstances of Aboriginal offenders in order
    to endeavour to achieve a truly fit and proper sentence in any particular case:
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 75. A
    sentencing judge must, when crafting a sentence for an Indigenous accused, consider
    all of the principles mandated by ss. 718.1 and 718.2 of the
Criminal Code
,
    including those codified in s. 718.2(e):
Ipeelee
, at para. 51.

[24]

However, s. 718.2(e) and the associated
Gladue
framework do not detract from the fundamental sentencing principle of
    proportionality:
R. v. Altiman
, 2019 ONCA 511, 56 C.R. (7th) 83, at
    para. 78, citing
R. v. F.H.L.
, 2018 ONCA 83, 360 C.C.C. (3d) 189, at
    para. 47. Similarly, the principle of parity in sentencing maintains relevance
    in the
Gladue
context, although courts should ensure that a
    formalistic approach to parity does not undermine the remedial purpose of s. 718.2(e):
Ipeelee
, at para. 79.

[25]

The principle of proportionality mandates that a
    sentence must be proportionate to the gravity of the offence and the degree of
    responsibility of the offender, or what is also known as the moral
    blameworthiness of the offender:
Ipeelee
, at para. 37. The principle
    of parity underpins the integrity of the judicial sentencing process and
    preserves fairness by avoiding disparate sentences where similar facts
    relating to the offence and the offender would suggest like sentences:
R.
    v. Rawn
, 2012 ONCA 487, 294 O.A.C. 261, at para. 18.

[26]

When sentencing an Indigenous accused, s. 718.2(e)
    and the
Gladue
principles provide the necessary
context
for understanding and evaluating the
    case-specific information particular to the accused (emphasis in original):
Altiman
,
    at para. 77, citing
F.H.L.
, at para. 39.

[27]

Section 718.2(e) requires a different method of
    analysis when sentencing Indigenous offenders. However, it does not necessarily
    require a different result or that a sentencing judge always prioritize principles
    of restorative justice when sentencing an Indigenous offender. This court made
    this clear in
F.H.L.
, at para. 47:

Gladue
and
Ipeelee
do not detract from the fundamental principle that a sentence must be
    proportionate to the gravity of the offence and the degree of responsibility of
    the offender.
What
Gladue
and
Ipeelee
recognize is
    that evaluating the degree of responsibility of an Aboriginal offender requires
    a different method of analysis. A different method of analysis does not
    necessarily mandate a different result
. Crafting a just and appropriate sentence
    may, in some cases, require giving greater weight to sentencing objectives such
    as deterrence and denunciation. As this court recognized in [
R. v.
    Kakekagamick
(2006), 81 O.R. (3d) 664 (C.A.), leave to appeal refused,
    [2007] S.C.C.A. No. 34], at para. 42:

To be clear, s. 718.2(e)
    does not require, nor is there a general rule, that Aboriginal offenders must
    be sentenced in a way that gives the most important weight to the principle of
    restorative justice
. It may be that in certain
    cases the objectives of restorative justice articulated in s. 718.2(e) and
    Gladue will not weigh as favourably as those of separation, denunciation and
    deterrence. [Citations omitted; emphasis added.]

[28]

In my view, the sentencing judge carefully
    considered the applicable principles of sentence as they pertained to the appellants
    individual circumstances and the offences for which he was sentenced. The
    sentencing judge recognized that, while the appellant is an Indigenous first-time
    offender with positive post-offence rehabilitative efforts, he still had to consider
    the principles of proportionality and parity within the context of the
Gladue
analysis.

[29]

The appellant committed a violent and serious
    crime. He robbed a bank during daylight hours, wearing a disguise, and while
    brandishing an eight-inch knife. He threatened a bank teller in the presence of
    patrons of the bank, including a mother and her two small children. He was also
    able to escape with $5,000 and was not apprehended until almost a year and a half
    later. This was an offence that required the sentencing judge to factor into
    his analysis the principles of general deterrence and denunciation.

[30]

While the appellants circumstances suggested
    that specific deterrence was not a factor relevant to his sentence, the trial
    judge recognized that the needs of the community at large required a sentence
    that would denounce the conduct of the offence and serve to deter others who
    may be inclined to commit similar offences in the future. These were relevant
    and important considerations at the time of sentencing.

[31]

The sentencing judge found that, after
    considering general deterrence, denunciation, and the need for a sentence
    proportionate to the gravity of the offence, a period of incarceration was necessary.
    This was so, notwithstanding the relevance of the
Gladue
principles
    and the particular circumstances of the appellant. This was a reasonable
    finding in the circumstances. The offence of robbery is one of the most serious
    offences within the
Criminal Code
. This offence mandates sentences up
    to a maximum of life. Any robbery offence is inherently violent, as the very
    definition of robbery connotes an offence of theft coupled with an act of
    violence. There are different degrees of robbery, and this one was serious.

[32]

This trial judge recognized that his task was to
    carefully balance the circumstances of the appellant with the applicable sentencing
    principles in order to arrive at a fit and appropriate sentence. He recognized
    that one of the principles of sentencing was that he was obliged to consider
    the principle of proportionality. He stated this at the outset of his reasons.

[33]

The sentencing judge directed his mind to the circumstances
    of the appellant and the appellants Indigenous status. Notwithstanding the
    seriousness of the charge, the sentencing judges task was to engage in an
    individualized analysis of the offender before him and the offence for which he
    was being sentenced. He recognized and accepted mitigating factors which inured
    to the appellants benefit. He concluded that specific deterrence was not a concern,
    given that the appellants post-offence and post-sentence conduct was positive
    and that he was unlikely to reoffend as a result. He noted that he was not
    bound by a sentencing range, and that he must consider the circumstances of the
    offence, the offender, and the needs of the community where the offence
    occurred.

[34]

The sentencing judge specifically considered the
    appellants Indigenous status. He referenced his judicial duty to give effect
    to the remedial purpose of s. 718.2(e) of the
Criminal Code
and
    to respond to the over-incarceration of Indigenous offenders. It is this very
    analysis which led the sentencing judge to consider a sentence in the low
    reformatory range, and to impose a sentence of six months incarceration. In
    his reasons, he stated the following:

Ive concluded there
    must be a custodial sentence for the robbery
. [U]nfortunately,
    I cannot conclude on these facts that I can impose an intermittent sentence. As
    I said, had a conditional sentence [been] available for the robbery proper, I
    would certainly consider it strongly.
However, given
    general deterrence and denunciation, and proportionality of the gravity of the
    offence, even accepting the reduced moral responsibility of this offender; when
    one takes a look at the offence involved here, which is a bank robbery with a
    weapon
; in my view, a custodial period that would be required for
    robbery exceeds that available under an intermittent sentence, which is
    restricted to a term of 90 days.
However, I must go on to
    consider what is the minimum sentence I can impose - the least restrictive
    sentence I can impose, that satisfies all the sentencing principles and factors
    Ive outlined, considering importantly, his plea of guilty, the Gladue factors,
    the fact that he is a first offender, the positive pre-sentence report, the
    restitution his counsel is in possession of, and undertaken to pay, and very
    importantly, that there is no need for specific deterrence in this case
.
    Ive concluded, after considerable thought, over a number of weeks not without
    some difficult moments, that the appropriate sentence and the shortest sentence
    that I can impose in this particular case,
in compliance
    with my duty and responsibility to impose the least restrictive sentence, but
    yet, makes sure the sentence does meet the principles [and] purposes of
    sentence, generally, is one of six months incarceration
. [Emphasis
    added.]

[35]

I see no error in this analysis that would
    warrant interference by this court.

(2)

Does this courts decision in
Sharma
entitle the appellant to a conditional sentence in this case?

[36]

The appellant also contends that in light of
    this courts recent decision in
Sharma
, this court should impose a
    conditional sentence, an option that was unavailable to the sentencing judge. He
    argues that as this court held in
Sharma
that s. 742.1(c) of the
Criminal
    Code
is unconstitutional, a conditional sentence is now available for the
    robbery charge and should be imposed as the appropriate sentence. He proposes a
    conditional sentence of one year on the robbery count, followed by one year of
    probation on the wear disguise count.

[37]

As indicated above, the sentencing judge was clearly
    mindful of his responsibility pursuant to s. 718.2(e). After weighing the
    relevant factors of sentencing pertaining to the appellant, who he recognized
    was a first-time Indigenous offender, he concluded that a non-custodial
    disposition would not adequately meet the objectives of sentencing.

[38]

The sentencing judge considered a non-custodial
    sentence, as this was the initial request by the defense in their sentencing
    submissions. He concluded that a non-custodial sentence was not appropriate due
    to the circumstances of this offence.

[39]

He also observed that a conditional sentence was
    not available to the charge of robbery. He went on to opine that if a
    conditional sentence was available, he would seriously consider it. While the
    sentencing judge stated that he would seriously consider a conditional sentence
    if it was available, he did not say that he would have imposed a conditional
    sentence if it was in fact available.

[40]

When considering the intersection of the
Gladue
principles, as codified in s. 718.2(e), and the availability of conditional
    sentences to Indigenous offenders who have committed serious offences, the case
    of
R. v. Wells
, 2000 SCC 10, [2000] 1 S.C.R. 207, is instructive.

[41]

In
Wells
, the appellant was convicted
    of sexual assault, and sentenced to 20 months incarceration. He appealed his
    sentence and sought to convert it to a conditional sentence, on the basis that
    the sentencing judge did not take account of the considerations required by s.
    718.2(e).

[42]

Iacobucci J. summarized the central issues
    raised by this appeal at para. 25:

Section 718.2(e) of the
Criminal Code
provides that all available sanctions other than imprisonment that are
    reasonable in the circumstances should be considered, with particular attention
    to the circumstances of aboriginal offenders.
As a
    general matter, this appeal raises the issue of whether a non-custodial
    sentence is reasonable, to use the language of s. 718.2(e), in circumstances
    where the paramount sentencing objectives are denunciation and deterrence
.
    More specifically, this appeal must determine whether the trial judge properly
    applied s. 718.2(e) when sentencing the appellant. [Emphasis added.]

[43]

In dismissing the appeal, the court made the
    following observations, at para. 30:

If the judge's preliminary assessment of a fit
    sentence excludes both a suspended sentence and a penitentiary sentence, and
    the statutory prerequisites in s. 742.1 are fulfilled, then he or she is
    required to consider s. 718.2(
e
) when deciding the appropriateness of
    a conditional sentence.
The judge's consideration of
    s. 718.2(
e
) at this stage does not displace the need to take into
    account all of the other principles and objectives set out in ss. 718 to
    718.2
. Moreover, whenever a judge narrows the choice to a sentence
    involving a sentence of incarceration,
the judge is
    obliged to consider the unique systemic or background circumstances which may
    have played a part in bringing the particular aboriginal offender
    before the courts. As well, the judge must consider the types of practicable
    procedures and sanctions which would be appropriate in the circumstances for
    the offender because of his or her particular aboriginal heritage
.
    As was indicated in
Gladue
,
the application
    of s. 718.2(
e
)

does not mean that a sentence
    will automatically be reduced
, since the determination of a fit sentence
    requires a consideration of all the principles and objectives set out in Part
    XXIII. [Emphasis added; citations omitted.]

[44]

The fact that a conditional sentence is
    available does not mean that one will necessarily be imposed. The sentencing
    judge is still required to conduct an individualized analysis, considering all
    the relevant principles of sentencing and weighing the appropriate factors to
    determine a fit sentence.

[45]

I accept that with the recent ruling in
Sharma
,
    it is now open for this court to consider the appropriateness of a conditional
    sentence for the appellant.

[46]

I also accept that in all cases involving the
    sentencing of an Indigenous accused, judges are directed by s. 718.2(e) of the
Criminal
    Code
to consider all available sanctions, other than imprisonment, that
    are reasonable in the circumstances and consistent with the harm done to
    victims or to the community.

[47]

In this case, the sentencing judge was of the
    view that because of the nature and circumstances of this particular offence,
    an actual custodial sentence was warranted, even when the Indigenous status of
    the appellant was factored into the sentencing analysis.

[48]

When applying s. 718.2(e) to determine the
    appropriate sentence to be imposed, the court must consider sanctions that are
reasonable in the circumstances
and
consistent with the harm done
to victims or to the
    community (emphasis added). The available sanctions must be reasonable in the
    circumstances. Not all sanctions, though available, are reasonable in the
    circumstances of the offence and the offender.

[49]

The trial judge recognized that there was no
    minimum sentence for the robbery, and in theory, he could consider a
    non-custodial sentence such as a suspended sentence and a period of probation. However,
    he concluded that because this offence was a bank robbery involving a weapon,
    he was obliged to impose a custodial sentence.

[50]

In the circumstances of this case, this was a conclusion
    that was open to the sentencing judge. In
Gladue
, the court recognized
    that even where Indigenous offender are concerned, there are some serious
    offences and some offenders for which and for whom separation, denunciation,
    and deterrence are fundamentally relevant: at para. 78. That court went on to
    say that [g]enerally, the more violent and serious the offence the more likely
    it is as a practical reality that the terms of imprisonment for aboriginals and
    non-aboriginals will be close to each other or the same, even taking into
    account their different concepts of sentencing: at para. 79. While I
    acknowledge that this latter statement was subsequently qualified in
Wells
,
    at para. 50, and
Ipeelee
, at paras. 84-85, and 87, I nevertheless find
    it instructive in considering the present issue.

[51]

The court in
Gladue
was also clear that
    s. 718.2 (e) should not be taken as requiring an automatic reduction of a
    sentence, or a remission of a warranted period of incarceration, simply because
    the offender is aboriginal. Instead, it is a direction to sentencing judges
    to consider certain unique circumstances pertaining to aboriginal offenders in
    reaching a fit sentence: at para. 88.

[52]

After considering the sentencing judges
    reasons, the applicable principles, the appellants fresh evidence, and this
    courts decision in
Sharma
, I conclude that the sentencing judges
    decision is sound. I would not alter the sentence imposed, even after
    considering the newfound availability of a conditional sentence for robbery.

[53]

Accordingly, I would not give effect to this
    ground of appeal.

E.

CONCLUSION

[54]

Having determined that the sentence imposed at
    trial was fit, and that the sentencing judge did not commit any error in
    principle or law that had an impact on the sentence, I would not interfere with
    the sentence imposed.

[55]

However, I would allow the appeal for the
    limited purpose of permanently staying the execution of the appellants remaining
    period of incarceration. Almost two years have passed since the appellant was
    sentenced. He spent 27 days in custody between receiving his sentence and being
    released on bail pending appeal. He was released on bail pending appeal on
    October 16, 2019, and his time since his release has been without incident.

[56]

Most importantly, the fresh evidence indicates
    that the appellant has since had no trouble with the law and is living a positive
    and pro-social life. He has developed positive relationships with his mother,
    brother, and father. He started his own catering company and cooks on a
    volunteer basis for a charitable organization. The evidence indicates that the
    appellant is not consuming drugs. He has also started seeing a psychiatrist to
    address his underlying mental health issues and discuss how his drug addiction
    impacted his behaviour.

[57]

In my view, reincarcerating the appellant at
    this stage would serve no genuine societal interest and is unnecessary to
    achieve the objectives of denunciation and general deterrence:
R. v. Owen
,
    2015 ONCA 462, 336 O.A.C. 95, at para. 62. Instead, those objectives can be met,
    without disrupting the appellants rehabilitative progress, by affirming the
    sentence initially imposed. Furthermore, the sentencing judge explicitly noted
    that specific deterrence was not relevant to the appellant, who in their view
    was not likely to reoffend. My view on the issue of reincarceration is
    strengthened when I consider the Supreme Court of Canada's guidance in
Gladue
.
    The community is best protected if the [appellant] continues along [his]
    rehabilitative path, and I would accordingly stay the remainder of his
    custodial sentence and substitute a total period of probation of two years:
R.
    v. Smickle
, 2014 ONCA 49, 317 O.A.C. 196, at paras. 18-20;
R. v. Dufour
,
    2015 ONCA 426, 326 C.C.C. (3d) 52, at paras. 11, 13, 17, and 29;
Owen
,
    at para. 63.

[58]

Finally, I would also impose a weapons prohibition
    order under s. 109 of the
Criminal Code
, for a period of ten years.

Released: S.E.P. February 10, 2021

M.
    Tulloch J.A.

I
    agree. S.E. Pepall J.A.

I
    agree. Harvison Young J.A.


