Black GTA man will not go to jail in self-defence killing of ‘racist’ attacker

For possessing the handgun that he used to shoot Jason Wagar — in self-defence, after a failed conspiracy to rob him — Roberts was handed a conditional sentence by Judge Alison Wheeler of the Ontario Court of Justice, who cited systemic anti-Black racism as a factor in her written reasons, from which she read aloud.

“Black Canadians face discrimination in every important sphere of life, including the justice system,” Wheeler said. Though Roberts has a supportive family and stable home life, those elements were not enough to “insulate” him from that reality, the judge noted.

The “racist” attack on Roberts did not diminish his responsibility for possessing the illegal gun, but it is “still a central consideration” in sentencing, said Wheeler. It inflicted a “significant moral harm” on Roberts, she said — harm “compounded by the laying of the murder charge when in fact Mr. Roberts was the victim in those events.”

Wheeler ordered that Roberts serve a sentence of 538 days outside of jail, including a period of 12 months of house arrest and GPS monitoring, followed by curfew, counselling, 200 hours of community service work and weapons and illegal drug restrictions.

The case, which adds to existing jurisprudence on the consideration of historical and ongoing systemic racism in sentencing, was from the start underpinned by an unusual set of facts.

In a statement, Selwyn Pieters, Roberts’ lawyer, said his client “was the victim of a racially-fuelled conspiracy to rob him.” He added that “justice is served by the withdrawal of the second-degree murder charge.”

Following the initial murder charge, Roberts was granted bail in December 2021 — four months after he shot and killed Jason Wagar, 43 — when a different judge ruled Roberts “appeared to be the target of a crime, possibly a hate crime.”

Roberts was essentially cleared of murder last May in an arrangement that saw him plead guilty to a single firearms charge, namely possessing a loaded restricted handgun. Roberts remained free on bail pending his sentencing.

Wagar, court heard, was known to be violent and, according to Roberts’ lawyer Pieters set up his client on August 12, 2021, for a “racially motivated” robbery at a Kingston apartment Roberts had been visiting.

A friend of Wagar’s told police Wagar was “pissed because he didn’t want n———s selling dope in his house,” court heard.

The apartment, according to a statement of facts agreed to by Assistant Crown Attorney Greg Skerkowski and Pieters, was home to several people, including Wagar, who were living an “anti-social lifestyle and entrenched in the local criminal and drug subculture.”

Roberts had gone there from his Ajax home to “visit friends and engage in the illicit sale of controlled substances,” reads the statement. He brought a gun for protection, though he did not intend to use it.

Roberts also carried a large amount of cash with him — more than $7,000 — which his family said was because he didn’t have a bank account to store his earnings from working in construction. He was also carrying 76 Percocet tablets and four tablets of OxyNEO.

Roberts admits to shooting Wagar, who was struck by four bullets, according to the agreed statement of facts.

A loaded 9mm Glock was found near the apartment in a fanny pack Roberts had brought with him. A machete and a pellet gun, believed to have belonged to Wagar, were found in the apartment.

Pieters, at Roberts’ bail hearing, referenced messages obtained by police that used racist remarks and slurs, “in particular ‘n——-,’” referring to Roberts and “other Black people in the Kingston area,” as Wagar and others “geared up” for the robbery.

In granting bail to Roberts, Justice Marc Smith pointed to a “very strong” self-defence argument. “The evidence before me demonstrates that Mr. Roberts was the victim of a racist conspiracy and attacked immediately preceding the incident in question,” said Smith.

At Roberts’ sentencing hearing, which began Jan. 19, a report by Barrington Walker, a Wilfrid Laurier University professor with an expertise in the history and impacts of anti-Black racism, was tabled in support of a more lenient sentence. Roberts’ actions, Walker wrote in what is called an “Impact of Race and Culture Assessment” report, “cannot be properly understood outside of the broader context of violence that is a feature of Black life in Canada.”

Court also heard that Roberts, who had no previous criminal record, was shot in the leg at a community event when he was 16, and never received therapy.

Roberts apologized to the court Tuesday before his sentencing.

“Mr. Roberts accepts responsibility for the illegal firearm he had on him, plead guilty to that and he was sentenced today for that,” said Pieters in his statement, adding the judge’s reasons were very “careful and balanced a lot of factors.”