Tuesday, December 17, 2013


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

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.
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.
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.
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.
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.


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