Here is a case in which an attempt was made to argue that immigration consequences should be a consideration in lowering a sentence of four years for a very serious crime. The convicted are immigrants ( or probably refugees) from Sudan and would face deportation proceedings. Note that the law has been changed and now a sentence of six months in jail would prevent an appeal of deportation to the IAD.
R. v. Hailemolokot
Between
Her Majesty the Queen, and
Biniam Worede Hailemolokot and Natnele Mesgna, Accused
[2013] M.J. No. 412
2013 MBQB 285
Docket: CR 11-01-31083
Manitoba Court of Queen's Bench
Winnipeg Centre
K.I. Simonsen J.
Judgment: November 27, 2013.
(77 paras.)
1 K.I. SIMONSEN J.:-- Following a trial, I
convicted both accused of two counts of robbery with a firearm (s. 344(1)(a.1)
of the Criminal Code).
Hailemolokot was also convicted of carrying a concealed weapon without
authorization. In the context of this sentencing, the accused have challenged
the mandatory minimum four-year sentence prescribed by s. 344(1)(a.1) on the
basis that it violates ss. 7, 12 and 15 of the Canadian
Charter of Rights and Freedoms (the "Charter").
2 The
circumstances of the offences are described in some detail in my decision on
conviction. By way of summary, early in the evening of August 2, 2008, the two
accused and some friends were at a wedding, in Winnipeg. While there, a friend
of Hailemolokot's had both a black and a silver air pistol (also known as BB or
pellet guns), which he and Hailemolokot put in the trunk of Hailemolokot's car.
Hailemolokot and others made a plan to commit a robbery or at least scare some
people at Grant Park Mall. He was one of two drivers who then took a group of
friends, including Mesgna, to the mall parking lot. While in the car, there was
discussion about trying to commit a robbery.
3 Once
the two vehicles arrived at the mall, all seven occupants got out, passed the
guns around, and began walking around. By about 11:30 to 11:45 p.m., they were
walking on Nathaniel Street, beside the mall, and approached the two
complainants, Georgina Kolbauer and Timothy Clare. One of the males in the
group ("the male") stepped forward and pointed the silver air pistol
at the complainants and demanded that they drop everything, as a result of
which Clare dropped the shopping bag he had been carrying. Kolbauer knocked the
gun from the male's hand and slapped his face; she told him that she thought
the gun was fake. Then Mesgna stepped forward, pointed the black air pistol at
Clare and told both complainants to back off. When the complainants hailed a
passing van for assistance, the male pointed the silver gun at the driver and
made a threatening comment. Before entering the van, Kolbauer retrieved the
shopping bag and all of its contents, except an Aquafina bottle refilled with
water remained on the ground and was picked up by the male.
4 After
the incident, both accused got into Hailemolokot's car, and he drove away with
the guns. He was planning to get rid of them, and either slid them under the
seat or asked the others to do so in order to hide them.
5 As
a result of all of this, I found Hailemolokot guilty as a party to robbery with
a firearm of both complainants. He planned the robbery, brought the guns,
walked around with the group, and was the driver. I convicted him of carrying a
concealed weapon on the basis that he had the guns in his trunk on the way to
the mall, put one in his waistband once they had parked, and after he had
driven away moved the guns under the seats of his car or asked others to do it.
6 As
for Mesgna, when he was part of the group walking around with the guns, he
heard one of them say "let's go rob them" and he saw Kolbauer
slapping the male who was pointing a gun at her. Mesgna then stepped forward
with the black gun. I concluded that, in stepping forward, pointing the gun at
Clare and telling the complainants to back off, he participated in the robbery.
7 The
Crown acknowledges that it did not prove that the two pellet guns were loaded
at the time of the robbery. However, shortly after the incident, the police
stopped and searched Hailemolokot's car and found the guns, as well as a separate
powerlet cartridge and clip with three pellets in it for the silver gun and a
powerlet cartridge for the black gun.
DOES S. 344(1)(a.1) VIOLATE THE ACCUSED'S S. 7, 12
OR 15 CHARTER RIGHTS?
Section 12
8 Section
12 of theCharter states:
· Everyone has the right not to be subjected to any cruel and unusual
treatment or punishment.
9 The
test for determining whether a punishment is cruel and unusual was outlined in R. v. McDonald (1998), 40 O.R. (3d) 641
(Ont. C.A.), at 665:
· The test for whether a punishment is cruel and unusual is whether it
is grossly disproportionate to what would have been appropriate. The punishment
must be so excessive as to outrage standards of decency. A sentence that is
merely excessive or even unfit, is not necessarily grossly disproportionate.
Further, it is unwise to simply measure gross disproportionality against a
current sentencing regime. Subject to constitutional limits, it is open to
Parliament to create new offences or aggravated forms of existing offences with
enhanced punishment. Unless the punishment runs afoul of constitutional limits,
it is not for the courts to debate the wisdom, or otherwise, of the new
sentencing regime. This applies as much to minimum punishments as to other
forms of legislated policy. The Supreme Court of Canada has held in R. v. Smith that minimum punishments per se do not violate either ss. 9 or 12 of
the Charter. The Court has also
held in Steele v. Mountain Institution (Warden), [1990] 2 S.C.R. 1385 at 1417, 2 C.R.R. (2d) 304 that it will only
be on rare and unique occasions that a court will find a sentence so grossly
disproportionate as to offend s. 12.
10 The
Supreme Court of Canada has consistently stated that it will be rarely that a
court will find a sentence so grossly disproportionate that it violates s. 12.
A Charter violation will be
established only in the clearest of cases where the punishment prescribed is so
excessive as to outrage standards of decency (R. v.
Smith, [1987] 1 S.C.R. 1045 (S.C.C.) and R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R.
96, para. 14).
11 The
test for "gross disproportionality" involves a consideration of the
following factors:
· 1.
the gravity of the
offence;
· 2.
the personal
characteristics of the offender and the particular circumstances of the
case;
· 3.
the effect of the
punishment on the individual;
· 4.
whether the punishment
is necessary to achieve a valid penal purpose;
· 5.
whether valid
alternatives to the punishment imposed exist; and
· 6.
the punishments imposed
for other crimes in the same jurisdiction.
12 Not
all factors will be relevant to a particular case nor is any single factor
determinative (Smith, R. v. Goltz, [1991] 3 S.C.R. 485 (S.C.C.),
and R. v. Morrisey, 2000 SCC
39, [2000] 2 S.C.R. 90).
13 The
analysis to be undertaken with respect to a s. 12 challenge is a two-stage
approach. The court must first determine whether a particular punishment is
grossly disproportionate on the basis of the foregoing factors. If the
applicant establishes that the punishment is grossly disproportionate, the
court will embark on an analysis under s. 1 of the Charter. If, however, the court finds that the punishment is not grossly
disproportionate, it must then consider whether the impugned provision would
result in cruel and unusual punishment in a reasonably based hypothetical
situation. If the provision would operate in such a manner, it must be
justified under s. 1 in order to stand (Morrisey, para. 29).
14 This
analysis has been applied in recent decisions of this court in which mandatory
minimum sentences other than that prescribed by s. 344(1)(a.1) have been
challenged. In R. v. Adamo,
2013 MBQB 225, the court found that s. 95(2)(a)(i) (three years for possession
of an unloaded prohibited firearm with readily accessible ammunition) violates
s. 12, and in R. v. McMillan,
2013 MBQB 229, the court came to the same conclusion with respect to s.
244.2(3)(b) (four years for intentionally discharging a firearm into a place
knowing that, or being reckless as to whether another person was in that
place).
15 As
for s. 344(1)(a.1), which is under consideration here, three Courts of Appeal
have held that it does not violate s. 12 rights (R. v.
Lapierre (1998), 123 C.C.C. (3d) 332 (Que. C.A.), R. v. Wust (1998), 125 C.C.C. (3d) 43
(B.C.C.A.), and McDonald,
upheld by the Supreme Court of Canada in R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455):
· *
In Lapierre, there were aggravating factors
related to the offence such as premeditation, disguise, loaded weapon, firing a
shot at the ceiling, and psychological impacts upon the victims. However,
mitigating factors were that the accused had pleaded guilty, was a mother and
sole caregiver of a young child, and had no prior convictions. An evaluation
report indicated that she would not likely repeat her offence. The court held
that, in these circumstances, the four-year mandatory minimum sentence was not
grossly disproportionate;
· *
In Wust, the British Columbia Court of Appeal
considered sentences for a number of offenders, concluding in each instance
that the punishment prescribed by s. 344(1)(a.1) did not violate s. 12. The
court came to this conclusion even with respect to an accused (Gatz) for whom
it determined that, in the absence of the mandatory minimum, a sentence of only
two years or possibly more would have been appropriate (para. 46); and
· *
In McDonald, the accused entered a fast food
restaurant, demanded money and indicated to the victim that he had a handgun.
He displayed the butt of an unloaded BB gun which was tucked into the waist of
his pants. The clerk handed over the money from the till, and was not injured.
The accused was 21 years of age and had one prior conviction for assault for
which he had received a suspended sentence and probation. He suffered from
manic-depressive disorder, but was not taking his medication or receiving
medical care at the time of the offence. He had pleaded guilty. In these
circumstances, the court found that the four-year mandatory minimum sentence
was not cruel and unusual punishment.
16 Counsel
agree that each case must be assessed on its own facts and that I am,
therefore, not bound by these authorities.
17 Crown
counsel submit that, absent s. 344(1)(a.1), a four-year sentence is appropriate
for each count of robbery with a firearm - and, as such, sentences at this
level certainly do not constitute cruel and unusual punishment. Crown counsel
further submit that these sentences should be served concurrently. Defence
counsel take the position that, absent s. 344(1)(a.1), appropriate sentences
would be one year and one day, to be served concurrently. While counsel for
Hailemolokot suggests a range of 12 to 15 months, he nonetheless argues for the
lowest end of that range and thereby adopts the position taken by counsel for
Mesgna. In light of this, defence counsel contend that four-year sentences are
grossly disproportionate.
18 As
for the factors to be considered at the first stage of the analysis, these
offences and the accused's participation in them were serious. This was a
robbery committed by a group, with the use of two guns. And, at least on the
part of Hailemolokot, there was a considerable degree of planning and premeditation.
As well, after the robbery, he attempted to hide the guns and planned to stash
them where they could not be found. Although the guns were unloaded, the police
also found ammunition in Hailemolokot's vehicle. Mesgna's actions involved
deliberately stepping forward and pointing the black gun after he knew that a
robbery was underway and that the male was pointing the silver gun at Kolbauer.
19 According
to the Crown's firearms expert, whose evidence was not challenged, these guns,
when loaded and fired, would cause serious bodily injury. Hence, they are
firearms as defined by s. 2 of the Criminal Code, as follows:
· "firearm" means a barrelled weapon from which any shot,
bullet or other projectile can be discharged and that is capable of causing
serious bodily injury or death to a person, and includes any frame or receiver
of such a barrelled weapon and anything that can be adapted for use as a
firearm;
20 Defence
counsel argue that the use of unloaded pellet guns is not the kind of mischief
the mandatory minimum sentence prescribed by s. 344(1)(a.1) was intended to
address. Specifically, they contend that, although the pellet guns are firearms
as defined by s. 2, they are not firearms under theFirearms
Act, S.C. 1995, c. 39, so that no license is required
in order to carry such a weapon. The defence position is founded on s. 84(3)(d)
of the Criminal Code, which
provides:
· (3)
Certain weapons deemed
not to be firearms - For the purposes of sections 91 to
95, 99 to 101, 103 to 107 and 117.03 of this Act and the provisions of the Firearms Act, the following weapons are
deemed not to be firearms;
.....
· (d)
any other barrelled
weapon, where it is proved that the weapon is not designed or adapted to
discharge
· (i)
a shot, bullet or
other projectile at a muzzle velocity exceeding 152.4 m per second or at a
muzzle energy exceeding 5.7 Joules, or
· (ii)
a shot, bullet or
other projectile that is designed or adapted to attain a velocity exceeding
152.4 m per second or an energy exceeding 5.7 Joules.
21 However,
no evidence was led as to whether the pellet guns in question were of
sufficiently low velocity to meet the requirements of this section. Even if
they were, the section makes it clear that while such guns will not require
registration under the Firearms Act nor are they "firearms" for some offences (such as
certain weapons possession and trafficking offences), there is no exemption
when they are used for criminal purposes as in s. 344(1)(a.1). In fact, in McDonald, where the court found that s.
344(1)(a.1) did not violate s. 12, the accused had used an unloaded BB gun in a
robbery.
22 Although
there are no victim impact statements, the evidence at trial establishes that
this was a terrifying incident for both complainants and the van driver. Even
Kolbauer, who thought the air pistol was fake, and said so, was described by
the van driver as yelling and hysterical.
23 In
terms of the circumstances of the offenders, pre-sentence reports have been
prepared; both are very favourable.
24 Hailemolokot
is single, never married, and has no children. He had no criminal record prior
to August 2, 2008. He was tried on the basis that he was 18 years of age at the
time of the offences. Following conviction, he brought a motion to re-open the
trial to introduce evidence that he was 17 at the material time; however, that
motion was dismissed.
25 Hailemolokot
was born and raised in Sudan, but is of Eritrean descent. When he was about 14,
his family immigrated to Canada and began residing in Winnipeg. He completed
high school and, according to a former teacher, was generally an involved and
industrious student. Both during school and after graduation he maintained
employment, mostly part-time. In 2011, he enrolled as a full-time student at
Red River College in the automotive technician program; he graduated in July
2013. Since then he has worked as a framer in the construction industry. He is
described favourably by a teacher at Red River College. His family is very
supportive. He has not been assessed as having any psychiatric illness or
antisocial disorder, nor has he ever had a problem with drugs or alcohol. He
does, however, have a hearing disability.
26 Hailemolokot
has been on judicial interim release in relation to this matter for a total of
over four years. His bail conditions have involved an absolute curfew
throughout, with exceptions to attend work and school. On July 12, 2011, he
pleaded guilty to two breaches of his recognizance, specifically the curfew and
residence conditions, and was given a conditional discharge with one year of
supervised probation.
27 The
probation officer reports that Hailemolokot regrets, and accepts responsibility
for his actions in the events of August 2, 2008. She describes him as a low
risk to reoffend.
28 Mesgna
was 18 years old at the time of these offences, and also had no criminal
record. He was born in Eritrea, moved to Sudan with his family when he was
five, and then to Canada when he was 14. After arrival in Winnipeg, he lived
with his parents and was responsible for all decisions related to his father's
health and legal problems. According to a former high school teacher, Mesgna
was a top athlete, with an excellent personal reputation. In about 2007, he
began work as a dishwasher at a local restaurant and by 2012 had become a
full-time kitchen supervisor. He has continued in that employment to present. The
general manager of the restaurant considers him to be a trustworthy,
responsible employee.
29 Mesgna
has difficult relationships with both parents. However, he has been in a
positive relationship with a woman for approximately three years, and she has
two children from a previous relationship to whom he is very dedicated.
Although he previously associated with an antisocial group of friends, he no
longer does so, preferring to spend time with his girlfriend and her daughters.
30 In
high school, Mesgna would regularly consume alcohol but never used drugs. He
reported to the probation officer that he no longer drinks. Like Hailemolokot,
he has never been assessed with any psychiatric illness, mental health problem
or antisocial condition.
31 Mesgna
advised the probation officer that he regrets and is remorseful for his
actions. He, too, has been on judicial interim release for a total of over four
years. The conditions of his release have also been stringent, involving either
an absolute or night curfew, again with exceptions for work and school. On July
11, 2011, he pleaded guilty to one count of breach of recognizance and was
given a conditional discharge with one year of supervised probation. The
probation officer has assessed him as a low risk to reoffend.
32 Defence
counsel argue that the lengthy period of time both accused have spent on
judicial interim release on very stringent conditions is also a mitigating
factor. I agree, on the basis of R. v. Irvine (C.W.), 2008 MBCA 34, 225 Man.R. (2d) 281; I recognize that for these
young men an absolute curfew would have had a real impact on their lifestyle.
However, the significance of this is attenuated by the fact that, as in Irvine, no details were provided as to what
hardship the accused actually suffered as a result of the bail conditions; I
also note that they were allowed to attend work and school.
33 In
all, the circumstances of the offenders are very mitigating: their young age,
lack of criminal records, good behaviour since the offences, and compliance
with bail conditions over a number of years.
34 In
support of their position that four-year sentences are appropriate, Crown
counsel note that, in the context of firearms offences, the courts have
repeatedly stressed that the dominant considerations must be deterrence, both
specific and general, retribution, and separation from society (R. v. Johnas et al., 1982 ABCA 331, 2 C.C.C.
(3d) 490, para. 23; R. v. D. (Q.) (2005), 199 C.C.C. (3d) 490 (Ont. C.A.), para. 78; R. v. Ferrigon, [2007] O.J. No. 1883, (Ont.
S.C.J.) (QL), paras. 25-29; R. v. Brown, 2009 ONCA 563, [2009] O.J. No. 2908 (QL), para. 33; R. v. Chin, 2009 ABCA 226, [2009] A.J. No.
711 (QL), paras. 10-13; R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, para. 41; rev'd 2013 ONCA
677; and R. v. Finlayson (16
May 2011), (Man. Prov. Ct.), p. 2).
35 Crown
counsel also rely on the following cases:
· *
Wust - The British Columbia Court of Appeal indicated that four years is
not an unusual punishment for robbery with a weapon (para. 25);
· *
R. v. Wozny (C.P.), 2010 MBCA 115, 262 Man.R. (2d) 75 - The Manitoba Court of Appeal
addressed the issue of totality in connection with a spree of armed robberies
and, in so doing, indicated that the appropriate sentence for one count of
robbery of a gas station with a knife, committed by a youthful first offender,
was two and a half years (para. 94). The accused was a drug addict who
committed the crime to fuel his addiction;
· *
Nur - The trial judge found that, prior to enactment of the s. 95
three-year mandatory minimum sentencing regime in 2008, a two and a half year
sentence would have been appropriate for the accused who possessed a loaded
handgun, without authorization, outside a community centre (para. 87). The
accused was a youthful offender with strong family support and rehabilitation
potential, and had pleaded guilty. However, taking into account the mandatory
minimum, the trial judge imposed a sentence of 40 months, comprised of the 20
months the accused had served prior to sentencing with a 2:1 credit. The Court
of Appeal did not interfere with this on the basis that the sentence had
already been served, and indicated that, absent the mandatory minimum, an
appropriate range of sentence would have been from a maximum reformatory term
to three years (para. 109);
· *
R. v. Smickle, 2012 ONSC 602, 110 O.R. (3d) 25; rev'd 2013 ONCA 678 - The trial
judge found that, ignoring the three-year mandatory minimum under s. 95, a
one-year sentence would be appropriate in circumstances where the accused was
alone at his cousin's apartment, posing for a photograph with a loaded handgun,
when police entered to execute a warrant to search for illegal firearms (para.
75). The Court of Appeal disagreed, finding that a sentence at or near two
years less a day would have been appropriate.
36 Crown
counsel extrapolate that, if sentences in the range of two to three years were
appropriate in Wozny (which
involved a knife and not a firearm), and Nur and Smickle (which
they say involved a less serious offence), a four-year sentence is in order for
Hailemolokot and Mesgna.
37 Defence
counsel counter this on the basis of cases decided before s. 344(1)(a.1) came
into effect on January 1, 1996, as well as cases where, on somewhat similar
facts, the Crown has proceeded with charges other than robbery with a firearm.
38 Three
of the decisions which pre-date 1996 are:
· *
Johnas - The Alberta Court of Appeal set a starting point of three years'
imprisonment for unsophisticated armed robberies of commercial establishments,
where there is no physical harm to the victim and where there is modest or no
success. Nonetheless, it imposed sentences of less than penitentiary time on
two offenders: an 18-year-old who committed a robbery which involved the
display of a BB gun, and had only a minor youth record, was sentenced to 18
months; another accused who entered a store, pointed a cigarette lighter at the
clerk and took $20, was sentenced to 15 months;
· *
R. v. King (1990), 66 Man.R. (2d) 130 (Man. C.A.) - On a conviction for armed
robbery, the Manitoba Court of Appeal imposed a sentence of 90 days, to be
served intermittently, on an accused who had been the driver in a robbery of a
convenience store committed with a knife. By the time of sentencing, he had
made good progress in fighting alcoholism, disassociated himself from negative
peers, and benefited from a favourable pre-sentence report;
· *
R. v. Dorland, [1995] B.C.J. No. 499 (B.C.C.A.) (QL) - The accused, armed with a
BB or pellet gun, and another male armed with a weapon, robbed, confined and
transported the victims to various locations. The accused also shot one victim
with the pellet gun. He had a lengthy criminal record and difficult background.
He was sentenced to three years' imprisonment, comprised of a credit for nine
months of pre-sentence custody plus two years, for two counts of robbery, two
counts of kidnapping with intent to confine, and two counts of extortion.
39 Defence
counsel argue that robberies of commercial establishments are generally
considered more aggravating than those committed as street muggings, and that
the guideline prescribed by Johnas must be viewed in this context. They also note that the circumstances
of the offence in Dorland were
much more serious than those now before me.
40 Defence
counsel also rely on a number of cases, decided since 1996 where the courts
have, in addition to a sentence for robbery, imposed a one-year mandatory
consecutive sentence on the basis that the robbery involved the use of an
imitation firearm (ss. 85(2) and (3) of the Criminal
Code). Relying on these authorities, defence counsel
suggest sentences of one year (for use of a firearm) plus one day (for robbery)
in this case. Although I have reviewed and considered all of these defence
cases, I will comment on only some of them.
41 In
R. v. Meawasige, 2008 ONCJ 122,
[2008] O.J. No. 1085 (QL), the accused, together with a small group, approached
the victim, held out a cap gun and demanded everything. The victim surrendered
cash, a cellular phone and his cigarettes. The accused had a series of
convictions dating back to his youth. He was sentenced to one day on the
robbery plus another year consecutive under s. 85(2).
42 Two
of the defence cases involved robberies of commercial establishments with
imitation firearms, and resulted in sentences of three months for robbery plus
the one-year mandatory minimum (R. v. Peterkin, [2003] O.J. No. 4403 (Ont. S.C.J.) (QL) and R. v. Muse, 2006 CarswellOnt 4543 (Ont.
C.J.)).
43 R. v. Young, [1998] O.J. No. 4709 (Ont. C.J.
(Gen. Div.)) (QL), involved an accused who, with an imitation firearm, accosted
the complainant while grocery shopping. He received a six-month sentence for
the robbery and a one-year consecutive sentence for use of the imitation
firearm. In R. v. Noor, 2009
0NCA 795, [2009] O.J. No. 4796 (QL), the accused, with five others, stole cash
and cigarettes from a gas bar and, in so doing, one of them held a pellet gun
to the face of the 21-year-old pregnant attendant. He was sentenced to six
months for the robbery plus the one-year mandatory consecutive sentence.
44 Other
cases which resulted in lengthier sentences of one year or more for robbery,
plus the one-year mandatory minimum, are:
· *
R. v. Kouznetsov, 2010 BCCA 585, [2010] B.C.J. No. 2720 (QL) - The accused was the
getaway driver in a well-organized robbery of jewellery worth $200,000. He was
sentenced to 12 months for the robbery plus the mandatory one-year minimum for
the use of an imitation firearm;
· *
In R. v. Hassan, 2011 ONSC 5128, [2011] O.J.
No. 3972 (QL) - The accused pleaded guilty to committing a bank robbery, with
two others and the use of imitation guns. The accused held customers on the floor
at gunpoint and pointed his gun at an employee. At the time of the robbery, he
was 18 years of age and had no criminal record. He was sentenced to 16 months
for the robbery with a consecutive one-year sentence under s. 85, followed by
two years of probation.
45 Defence
counsel also note that there are robbery cases where guns have been used, but
the Crown has not proceeded under s. 344(1)(a.1) nor sought the mandatory
one-year minimum consecutive sentence under s. 85:
· *
R. v. Teskey, 2000 BCSC 627, [2000] B.C.J. No. 778 (QL) - The accused pointed a
pellet gun at a gas station attendant and demanded money. On a robbery
conviction, the court imposed a sentence of 11 months for time served and an
11-month conditional sentence;
· *
R. v. Barre, [2011] O.J. No. 5004 (Ont. S.C.J.) (QL) - The accused and three
others swarmed the victim in a parking lot at night. One of the others
threatened the victim with a gun. Ultimately, they fled without stealing
anything. The accused had a criminal record for similar violent offences and
did not take any responsibility for his actions. He was sentenced to 30 months'
imprisonment for robbery.
46 Crown
counsel distinguish the defence authorities on the basis that they are both
factually different and involve different charges. Many involve only imitation
firearms. I agree. As well, Crown counsel note that the pre-1996 cases are of
limited assistance because the mere fact that Parliament has chosen to enhance
the punishment by prescribing, under s. 344(1)(a.1), a minimum penalty creates
an "inflationary floor" so that, over time, sentences will increase
to reflect the inflationary consequences of the new minimum (Morrisey, paras. 75, 76 and 82).
47 The
impact of four-year sentences upon Hailemolokot and Mesgna will be
considerable. I expect that, under the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, they will
lose the right to appeal any deportation order to the Appeal Division of the
Immigration and Refugee Board (although my understanding is that this would
occur with any sentence of two years or more). Moreover, they will have to
serve lengthy sentences in a penitentiary when they have never before been
sentenced to jail. That said, the operation of the parole system will likely
reduce the actual time they spend in custody.
48 Pre-sentencing
custody is also a factor in assessing the impact of the mandatory minimum
sentences. The Ontario Court of Appeal in McDonald (confirmed by the Supreme Court of Canada in Wust) held that under s. 719(3) of the Criminal Code the court can deduct time
spent in pre-sentencing custody from a mandatory minimum sentence. Section
719(3) that was in effect at the time of these offences gives me discretion in
determining the appropriate credit for pre-sentence custody. Nonetheless, the
courts have held that the usual credit to be given under that section is 2:1.
The rationale behind this is that pre-sentencing custody is often served in
harsher conditions than post-sentencing custody and the legislative provisions
for parole eligibility and statutory release do not take into account time
spent in custody prior to sentencing. Recognizing this, cases where credit has
been given on a ratio of less than 2:1 typically arise when the offender
received a full range of programs in pre-sentence custody or where his record
or background show that he is an unlikely candidate for early release (R. v. Vermette (I.M.), 2001 MBCA 64, 156
Man.R. (2d) 120;R. v. Roulette (C.P.), 2005 MBCA 149, 201 Man.R. (2d) 148; and R.
v. Stonefish, 2012 MBCA 116, 288 Man.R. (2d) 103, para.
12).
49 Counsel
agree that Mesgna and Hailemolokot have now spent a total of approximately 10
and 12 months, respectively, in pre-sentence custody on these offences; this
includes approximately nine months after their convictions in April 2012 (when
bail was revoked) until January 2013 when Hailemolokot brought his motion to
re-open. At the initial sentencing hearing on November 19, 2012, Crown counsel
took the position that the accused are entitled to a 2:1 credit for the time
served prior to conviction and a 1:1 credit for time served since then. Defence
counsel maintained that all time served prior to sentencing ought to be
credited on the usual basis of 2:1. During supplementary sentencing submissions
on October 30, 2013, Crown counsel seemed to agree to a double credit for all
pre-sentencing custody.
50 In
any event, I am satisfied that a credit of 2:1 for all time served to date is
appropriate. There is no suggestion that the accused have had access to
programming other than as remand prisoners. Nor is there any dispute that the
time they have served will not be taken into account for parole eligibility.
Therefore, I see no basis for departing from the usual credit of 2:1 for all
time served prior to sentencing.
51 As
for other contextual factors which may inform an assessment of gross
disproportionality, the minimum sentence at issue pursues a valid penal
objective; as I have already indicated, robbery with the use of a firearm is a
very serious offence. And the fact that there might be an alternative
punishment to the minimum sentence does not make the mandatory sentence grossly
disproportionate (R. v. Martin (B.), 2005 MBQB 185, 203 Man.R. (2d) 214, paras. 19-21).
52 Taking
into account the circumstances of the offences and the offenders, I expect
that, in the absence of s. 344(1)(a.1), I would have imposed sentences in the
range of approximately two and a half years for each count of robbery with a
firearm. Penitentiary sentences would have been fit and proper because of the
degree of planning (on the part of Hailemolokot), the use of firearms, and the
group nature of the crimes. Denunciation and deterrence must be paramount in
circumstances where members of the public are approached and intimidated by a
group, carrying guns - even if virtually nothing is ultimately stolen. That
said, I recognize that the circumstances of the offenders are very mitigating.
They are previously of good character, young, remorseful, and apparently good
candidates for rehabilitation. As well, as noted earlier, they have been on
judicial interim release, with stringent conditions, for a very lengthy period
of time.
53 My
conclusion as to appropriate sentences is consistent with the comment of
Clayton C. Ruby, Gerald J. Chan & Nader R. Hasan, Sentencing, 8th ed. (LexisNexis Canada Inc., 2012), at s.23.369, that
"[a] sentence below two years' incarceration is rare for robbery;
...".
54 However,
the standard under s. 12 is not so exacting as to require the punishment to be
"perfectly suited to accommodate the moral nuances of every crime and
every offender" (R. v. Lyons, [1987] 2 S.C.R. 309 (S.C.C.) at 344-45). The question is whether
the sentence prescribed by s. 344(1)(a.1) is so grossly disproportionate that
it would outrage commonly accepted standards of decency; and I conclude that it
would not. This was a robbery committed by a group of males who approached and
intimidated the complainants with two guns. Although neither accused pointed
the silver gun, they were nonetheless important participants for the reasons I
have outlined. These guns, if loaded and fired, were capable of inflicting
serious bodily harm. The use of such firearms, even unloaded ones, creates a
volatile situation and fear and intimidation on the part of those victimized.
Clearly, citizens must be protected against being approached and threatened
with guns.
55 In
these circumstances, and taking into account the other factors relevant to an
assessment of gross disproportionality, I conclude that a four-year sentence is
not cruel and unusual punishment. In reaching this conclusion, I have
considered the mitigating circumstances of the offenders and the significant
impact of such a sentence on them.
56 My
conclusion is consistent with that reached in McDonald, where Rosenberg J.A. stated that, on the usual scale of appellate
review, he would have found a three- to four-year sentence to be demonstrably
unfit, but nonetheless concluded that the mandatory four-year sentence was not
grossly disproportionate (p. 666). Likewise, in Wust, the British Columbia Court of Appeal dealt with an accused (Gatz)
who, together with an accomplice, had robbed a store, wearing a bandanna; the
accomplice carried an unloaded pump-action shotgun. In concluding that there
was no s. 12 breach, the court stated:
· [46] Notwithstanding the unfortunate circumstances of the accused,
and the fact the he had no record, the violence of this robbery, particularly
the violence visited upon the clerk, required a sentence of two years, and
possibly more. I agree with the views expressed by the trial judge in this
case. It is my opinion that a mandatory sentence of four years approaches
disproportionality because of the circumstances of the accused, but such a
sentence cannot be said to be grossly disproportionate. ...
57 In
Wust, the court also considered
an accused (Sykes) who had entered a gas station and pointed a flare pistol at
the attendant's face and demanded money; she had no criminal record and
suffered from schizophrenia. The court adopted the approach taken by the Quebec
Court of Appeal in Lapierre,
described as follows:
· [61] In giving the judgment of the Court, Proulx J.A. agreed that a
sentence of four years upon a young person without a record would be a very
harsh sentence but the commission of a robbery with a firearm requires a
conscious decision that cannot be excused on sympathetic grounds. The sentence
was not found to be unconstitutional. With respect, I agree with the
conclusions expressed by Proulx J.A.
58 In
terms of the second stage of the s. 12 analysis, the accused did not put
forward reasonable hypotheticals, taking the position that their own cases
involve facts so favourable that gross disproportionality should be found on
that basis. In McDonald,
Rosenberg J.A. contemplated circumstances where the four-year minimum would be
grossly disproportionate, but only where the sentencing judge was not permitted
to make allowance for pre-sentencing custody (para. 82).
59 Therefore,
section 344(1)(a.1) does not violate the accused's s. 12 rights.
Section 7
60 Section
7 of the Charter provides:
· Everyone has the right to life, liberty and security of the person
and the right not to be deprived thereof except in accordance with the
principles of fundamental justice.
61 Defence
counsel argue that s. 344(1)(a.1) is arbitrary and not in accord with the
principles of fundamental justice because it allows the Crown discretion to
prove that these pellet guns are "firearms".
62 In
the course of rejecting a similar argument regarding prosecutorial discretion
and minimum sentences in an impaired driving case, this court in Martin held as follows:
· [47] The real issue is whether Parliament, by enacting a procedural
safeguard that gives the Crown discretion whether to bring the mandatory
minimum into play, offends the principles of fundamental justice. Clearly
Parliament is entitled to vest discretion in the Crown and has done so
throughout the Criminal Code.
... The end result of the exercise of this discretion in any case may well be
the deprivation of the accused's liberty but only after a fair trial, in
accordance with the principles of fundamental justice. While addressing a
different issue than the one here, the decision in Power is authority for the proposition that there is nothing inherently
wrong with the delegation of, or exercise of, prosecutorial discretion per se
and further the courts should be very slow to review the exercise of that
discretion.
Also see Nur (Court of Appeal), at para 193.
63 I
also reiterate that, in McDonald, the Crown chose to proceed under s. 344(1)(a.1) in circumstances
where a BB gun was used, and no s. 7 concerns were raised by either the Crown
or the court.
64 Therefore,
s. 344(1)(a.1) does not violate the accused's s. 7 rights.
Section 15
65 Section
15(1) of the Charter provides:
· Every individual is equal before and under the law and has the right
to the equal protection and equal benefit of the law without discrimination
and, in particular, without discrimination based on race, national or ethnic
origin, colour, religion, sex, age or mental or physical disability.
66 The
two-part test for establishing a s. 15 violation is now well-established and
was recently affirmed in Withler v. Canada (Attorney
General), 2011 SCC 12, [2011] 1 S.C.R. 396 (paras.
34-40). The first step is determining whether the law creates a distinction
that is based on an enumerated, or analogous ground, such as race. The second
step is determining whether the distinction creates a disadvantage by
perpetuating prejudice or stereotyping.
67 The
accused assert a s. 15 violation on the basis that s. 344(1)(a.1) further
contributes to the marginalization of and racism against Canadians of African
descent. They rely on an article by Elizabeth Sheehy, "The Discriminatory Effects of Bill C-15's Mandatory Minimum Sentences" (2010), 70 C.R. (6th) 302, which considered the effects of
mandatory minimum sentences for trafficking, importing and producing controlled
drugs and substances. The author concluded that those minimum sentences would
have a disproportionate, discriminatory impact on African-Canadians. In drawing
this conclusion, she indicated that the impact of mandatory minimum sentences
in the United States has been disproportionately felt by African-Americans.
Defence counsel also draw an analogy to the situation of aboriginal peoples,
which was recently again addressed by the Supreme Court of Canada in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R.
433.
68 Despite
the Sheehy article and the reference to Ipeelee, no evidence was tendered by the accused to lay a factual
foundation for their s. 15 challenge. They have not established that there is
an over-representation and over-incarceration of black males charged with s.
344(1)(a.1) offences or that any such effect is caused by the law itself.
Therefore, as the trial judge found in Nur, the accused have not met their burden of demonstrating that s.
344(1)(a.1) contravenes s. 15 of the Charter (para. 79). Further, Ipeelee is not a s. 15 case; rather, it dealt with the circumstances of
aboriginal offenders in a sentencing hearing. And, in fairness to defence
counsel, they did not vigorously press the s. 15 argument, but instead focused
on their primary challenge based on s. 12.
69 Therefore,
the accused have not established that s. 344(1)(a.1) violates their s. 15
rights.
Conclusion
70 Because
the accused have not successfully challenged s. 344(1)(a.1), they are subject
to the mandatory minimum sentence of four years on each count of robbery with a
firearm. These sentences are to be served concurrently. With a credit of 2:1,
Hailemolokot is entitled to a total credit of 24 months while Mesgna's credit
is 20 months. Both defence counsel have advised that the accused would prefer
to serve their sentences in a penitentiary, rather than a provincial
institution. Therefore, Hailemolokot is to serve a further two years, and
Mesgna is to serve a further 28 months.
WHAT IS THE APPROPRIATE SENTENCE FOR CARRYING A
CONCEALED WEAPON WITHOUT AUTHORIZATION?
71 I
must first decide whether Hailemolokot's sentence for this offence should be
served consecutively or concurrently to his sentences for robbery with a
firearm. The Manitoba Court of Appeal has recently, on several occasions, considered
whether consecutive or concurrent sentences are appropriate where multiple
offences are involved (R. v. Arbuthnot (S.M.), 2009 MBCA 106, 245 Man.R. (2d) 244; Wozny; R. v. Taylor (M.A.), 2010 MBCA 103, 262 Man.R. (2d) 43; and R.
v. Draper (T.G.), 2010 MBCA 35, 251 Man.R. (2d) 267).
72 As
stated in Wozny:
· [46] While this is often not a simple issue to decide, the general
rule is that if the offences are sufficiently interrelated to form part of one
single, continuous criminal transaction, a concurrent sentence is called for.
However, if the offences are separate and distinct, then a consecutive sentence
is to be imposed. Many of the aforementioned cases (Grant, Golden, Draper, and Maroti) make this clear. But this is only the general or basic rule.
73 Ultimately,
the test is flexible, and it becomes a very fact-specific inquiry whether the
connection between two offences is sufficiently or insufficiently close to
merit consecutive or concurrent sentences (Wozny, para. 49, citing R. v. E.T.P., 2002 MBCA 194, 163 Man.R. (2d) 113).
74 In
this case, Crown counsel argues that Hailemolokot's actions in placing the guns
in the trunk at the wedding, and putting one in his waistband once they arrived
at Grant Park Mall, as well as taking steps to hide the guns when they were in
the car after the robbery are all discrete from his involvement in the robbery
itself. However, in my view, they were inextricably linked and have a very
close connection both in time and purpose to the robbery. This was a
continuous, uninterrupted criminal enterprise. Hence, concurrent sentences are
appropriate.
75 As
for the duration of the sentence, Crown counsel submits that a six- month
sentence is appropriate whereas defence counsel argues for a sentence of 30
days. I am satisfied that a six-month concurrent sentence is fit and proper.
This was a serious offence, involving concealment of guns both before and after
the robbery.
IS THE CROWN ENTITLED TO THE ANCILLARY RELIEF
SOUGHT?
76 Defence
counsel do not object to the Crown's request for bodily samples for DNA
analysis or an order of forfeiture of all items seized by the police. However,
they dispute the Crown's request for a non-communication order under s. 743.21
of the Criminal Code on the
basis that it is not necessary. They also question the Crown's request for a
lifetime weapons prohibition under s. 109(2), taking the position that because
the accused are first-time offenders, any such order should be limited to ten
years. I am satisfied that the non-communication order is appropriate given the
nature of the crimes and the fear they instilled in the complainants. As for
the weapons prohibition, Crown counsel have not submitted any authorities nor
satisfied me on the facts of this case that I should depart from the usual 10-year
order prescribed by s. 109(2).
77 I
also order that both accused pay the victim surcharge.
K.I. SIMONSEN J.
