R. v. Blair, 2021 MBPC 4

CITATION: R. v. Blair , 2021 MBPC 4 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre (FASD Court) BETWEEN Her Majesty the Queen ) ) P. Leslie for the Crown ) ) - and – ) ) ) Tariq Blair ) ) C. Olson for the Accused ) ) ) Reasons for Decision ) Delivered: January 19, 2021 C.A. Devine, P.J. INTRODUCTION [ 1 ] This is a sentencing decision. Mr. Blair is 21 years of age and has a diagnosis of Fetal Alcohol Spectrum Disorder (FASD). He is of mixed European, African and Indigenous background. He was born and raised in Winnipeg and has lived in Winnipeg most of his life. [ 2 ] Mr.

Blair pleaded guilty to two armed robberies, wearing a disguise and use of an imitation firearm in committing a robbery, as well as four breaches of release orders. He was 20 years old when he committed the robberies. [ 3 ] I heard this full day sentencing in FASD Court on January 7 and 8, 2021. Carmen Edwards of the FASD Justice Program was present throughout. Also present for some of the hearing was Mr. Blair’s girlfriend, and his sister. [ 4 ] Mr.

Blair with a co-accused adult were wearing face and head coverings and carrying imitation guns when they entered and robbed a Shoppers Drug Mart and then two hours later, a beer vendor, both located in Winnipeg. They accosted the employees behind the counters at both stores, one employee at the Shoppers Drug Mart, and two at the beer vendor. They had the guns drawn. It was August 16, 2019, a summer evening. Both stores were busy with customers. Several customers saw the robberies. At the beer vendor, one customer bumped into one of the robbers.

A woman could be seen in the surveillance video that the Crown filed, cowering behind shelves in the beer vendor store. The co-accused William Sampson demanded money from the employees and grabbed the cash tills in both stores. Each robbery lasted only seconds. [ 5 ] There was a third co-accused who was the driver of the getaway vehicle, Charles Lambert. Charges against him were stayed. Court was not told why. As for the co-accused Sampson, he received a time-served sentence of just under one year to be followed by two years of unsupervised probation. The Crown stated only that the case against Mr.

Blair was stronger than against the co-accused. When Mr. Blair was arrested two days after the robberies, he provided a statement admitting his involvement and implicating the co- accused. [ 6 ] The Crown is seeking a sentence for Mr. Blair of six years concurrent on each of the robberies. She is seeking the mandatory one year consecutive sentence for using an imitation firearm while committing an indictable offence in s. 85(2) (

a) of the Criminal Code . The offence carries with it a mandatory minimum sentence of one year, s. 85(3) (a), which must be served consecutively, pursuant to s. 85(4) . She is seeking nine months concurrent on the wear disguise offence. She is seeking seven days concurrent on the breach of Mr. Blair’s curfew that night. On two other curfew breaches that occurred a few days before and one day later, she is seeking an additional 15-day sentence, concurrent to each other. Mr. Blair was released to the Teen Challenge Program at some point on bail.

He left the program, and on April 21, 2020 was charged with another breach of his release order. The Crown is seeking a one-month consecutive sentence for that offence. The total sentence recommended by the Crown is seven years, one month and 22 days. [ 7 ] Mr. Blair is currently on remand at Milner Ridge Correctional Centre (MRCC) and has been in custody waiting for his

sentencing for 482 days. Both counsel agree that Mr. Blair’s sentence should be reduced by the time he has already spent in custody,credited at one and one-half days for every day. That is 723 days, which is just under two years. [8] The defence is seeking a jail sentence of three years to be followed by a period of supervised probation. [9] The sentencing range for an armed robbery of a taxi driver or sole employee in a convenience store or gas bar is two to fouryears for a first time offender. The robberies in this case are somewhat distinguishable, given that these were both busy stores duringdaylight hours.

There were many customers present in both stores. In the case of the vendor, there were two employees. So, althoughthe R. v. Charlette, 2015 MBCA 32 starting point sentence is not strictly applicable, it is a helpful comparable. While the above factorsmay suggest a lower sentence, the fact that there were two co-accused, may suggest a higher sentence. [10] What takes Mr. Blair’s case outside the Charlette range are the factors that greatly reduced his moral culpability in committingthese offences. The main issue in this case is how Mr.

Blair`s diagnosis of FASD impacted his moral culpability in committing therobberies and what a fair sentence would be, in light of his FASD as well as the impact of his Indigeneity.

SENTENCING: ITS PURPOSE, OBJECTIVES AND PRINCIPLES [11] The purpose of sentencing in Canada is to contribute to a safe, peaceful and just society, by imposing fair sentences that haveone or more of the following objectives: denunciation, deterrence, separation of offenders from society where necessary, rehabilitation,providing reparations to victims or the community, and promoting a sense of responsibility in offenders and acknowledgement of theharm done to victims and the community. The Supreme Court of Canada set out a framework for sentencing in the decision of R. v.Nasogaluak, 2010 SCC 6.

Writing for the Court, Justice LeBel stated that no one sentencing objective trumps the others, and thatsentencing judges must determine which objective or objectives should have the greatest weight: . . . The determination of a "fit" sentence is, subject to some specific statutory rules, an individualized process that requires the judge toweigh the objectives of sentencing in a manner that best reflects the circumstances of the case (R. v. L. (T.P.), (SCC),[1987] 2 S.C.R. 309 (S.C.C.); M. (C.A.); R. v. Hamilton (2004), (ON CA), 72 O.R. (3d) 1 (Ont. C.A.)).

No onesentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatestweight, given the particulars of the case…. (at para. 43) [12] In this case, the primary sentencing objectives are specific deterrence and rehabilitation. Usually, denunciation and deterrenceare the primary objectives engaged when sentencing robbery offences involving firearms, real or imitation, but they are not the primaryobjectives in this case. While denunciation and general deterrence are still relevant, Mr.

Blair’s diagnoses of FASD and AttentionDeficit Hyperactivity Disorder (ADHD) detract from denunciation and deterrence being the primary objectives. His prospects for bothrehabilitation and deterrence also take him out of the category of offenders whose danger to the community is such that separation fromsociety is necessary. [13] It is recognized that the objectives of denunciation and general deterrence play little or no role where the person has offendedbecause of mental illness. (R. v. Adamo, 2013 MBQB 225 at para. 31). In that decision, Justice Suche quoted Clayton C.

Ruby et al.,Sentencing, 7th ed. (LexisNexis Canada Inc., 2008), which states: . . . general deterrence should be given very little, if any, weight in a case where an offender is suffering from a mental disorder becausesuch an offender is not an appropriate medium for making an example to others.(at 5.251, pp. 293-94) [14] Mr. Blair is not mentally ill, but FASD, which is an organic brain injury, cannot be treated any differently in a sentencingcontext.

As will be seen, his FASD and ADHD greatly impacted his executive functioning and decision-making, and caused him to be afollower and act impulsively in participating in these offences. PROPORTIONALITY [15] Overarching the sentencing objectives is the fundamental principle of sentencing, proportionality – the sentence imposed mustbe proportional to the gravity of the offence and the degree of responsibility the offender had when they committed the offence.

InNasogaluak, the Supreme Court directed sentencing judges to ensure that the fundamental principle of proportionality is not sacrificed atthe altar of any of the relevant objectives in any particular case. Justice LeBel explained: The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be "proportionate to the gravity of theoffence and the degree of responsibility of the offender".

Thus, whatever weight a judge may wish to accord to the objectives listedabove, the resulting sentence must respect the fundamental principle of proportionality. . . (at para. 41) Seriousness of the Offence [16] Any offences involving armed robberies are very serious and the sentences must reflect the gravity of the problem of usingfirearms. Robbery is a strictly indictable offence. The maximum sentence is life imprisonment.

The Crown filed information fromStatistics Canada showing that the rate of robbery offences in Manitoba was more than double the national rate most recently in 2015.[1] [17] At the same time, Mr. Blair was only 20 years old when these offences were committed, his circumstances as an Indigenousperson affected his involvement in these offences, he has diagnoses of FASD and ADHD, and prior to the FASD diagnosis, he wasdiagnosed with a Conduct Disorder, which was consistent with difficulties in anger management and impulse control. It is assumed thatthe subsequent FASD diagnosis explained the conduct disorder.

Rehabilitation is also a key sentencing objective.

[ 18 ] It is important to keep in mind that the firearms were imitation. They were not capable injuring or killing anyone. But the store employees being robbed and the customers in the stores did not know that the firearms were imitation. The fear caused by Mr. Blair and his co-accused was real. One of the victims told police that when the Shoppers Drug Mart employee was having difficulty opening the till, Mr. Sampson said, “Just shoot him,” and Mr. Blair started counting down from 10. The victim thought he was going to be shot, especially when Mr. Blair started counting down from 10.

None of the witnesses provided victim impact statements. [ 19 ] The Crown played video surveillance from the robberies in court and filed a disc of the video as an exhibit. [ 20 ] The robbery at the Shoppers Drug Mart occurred first, at 6:48 p.m. on August 16, 2019. The elapsed time from when the two robbers can be seen near the counter to when they leave is 40 seconds. There are several people at the counter when they come around the side and open the low half-door and go behind the counter where there is a lone employee. Mr. Sampson is in front with his handgun out.

The employee raises his hands and is then opening the till. Mr. Blair is in the rear and is mostly blocked by Mr. Sampson. He has the rifle out, but is not pointing it, and then turns around and appears like he is looking down, looking for something. Mr. Sampson grabs some cash from the till and then grabs the whole cash drawer. They leave. [ 21 ] The video from the beer vendor shows that it is just before 9:00 p.m. and customers are coming and going. When the co- accused enter, there are two customers in the store near the counter. Mr. Blair is following Mr. Sampson. He can be seen to be hunched over.

He is not pointing or brandishing his imitation rifle at anyone until at the counter he points it at the employees. There are three employees behind the counter, two when the robbers are present and then a third can be seen at the conclusion of the robbery. One of the employees opens the till and Mr. Sampson grabs it and they leave. The male customer appears to be nonplussed by the event. He stays in full view of the windows where the co-accuseds exited. He appears calm. The female customer is not as calm; she runs behind one of the large coolers and crouches down when the robbers are present.

After they exit, she approaches the counter and she can be seen to be shaking. The most aggressive action is when Mr. Blair is trying to exit the store, but the door is locked. (It appears from the video that customers have to wait to be buzzed out the exit door by staff.) When they cannot exit, Mr. Blair begins to bash at the door with his rifle butt. The whole thing lasts about 19 seconds. [ 22 ] Neither video shows the kind of sure, confident and aggressive robbery this court often sees. No one was injured. Moral Culpability in Committing the Offences [ 23 ] I must also consider Mr.

Blair’s moral culpability in committing these offences. His adult record consists of possession of cocaine and failure to attend court, from April 2020. He has a lengthy youth record, between 2012 and 2017, with three convictions for assault with weapon, two assaults, two convictions for assault peace officer, mischief, theft, carrying a concealed weapon, two convictions for possession of a prohibited weapon, two robberies (one of them involved a pizza delivery driver, who was bear sprayed when he delivered the pizza), one conviction for disguise, and identity fraud.

He also has several breaches of court orders on his record, mostly consisting of curfew breaches. The most recent peace officer assault conviction involved a guard at Agassiz Youth Centre. There is a three year gap in his record between 2017 and 2020 when he incurred the drug possession and fail to attend court convictions. [ 24 ] The videos of the robberies show that Mr. Blair is not the aggressor or leader; he is following and acting somewhat tentatively, particularly during the first robbery.

The explanation for this is borne out by what he told the police, and by his background and cognitive problems, which will be discussed in more detail below. [ 25 ] Mr. Blair was arrested for these offences the following day. He confessed to the robberies and implicated the two co-accused leading to their arrests. Mr. Blair told the police that Mr. Sampson, who he knew as “Blacks,” planned the robbery, and “Chuck,” or Charles Lambert, planned the getaway. He was afraid of Blacks; he told the police that Blacks forced him to participate in the robberies and he heard that Blacks is crazy.

Defence counsel further advised that the co-accused were mature adults. Mr. Sampson is 50 years old and has a lengthy and serious criminal record, including robberies, and was bound by two separate lifetime weapons prohibitions. [ 26 ] Mr. Blair was living in very constrained and difficult circumstances at the time leading up to these offences. He had been living with his girlfriend, but when she was evicted he had nowhere to go. He went to stay with his mother, who had a room at the Winnipeg Hotel.

His mother was using drugs heavily and was surrounded by negative people, including Sampson and Lambert, also heavy drug users involved in criminal activity. His girlfriend then overdosed on drugs and died. Mr. Blair was using drugs to try to cope with her death. The night of the robberies, Mr. Sampson came to his room and said, “C’mon, let’s go.” Mr. Blair did not know where they were going or what they were doing.

When they arrived at the Shoppers Drug Mart, Sampson handed him the imitation rifle and the disguise and told him, “C’mon.” Between the first and second robberies, he asked to get out of the vehicle, but they were too far away for him to walk back to the Winnipeg Hotel. [ 27 ] He was in a terrible state of crisis, grief, turmoil and poverty. [ 28 ] Added to that is his FASD diagnosis. FASD and Criminal Involvement [ 29 ] Having an FASD diagnosis affects many of the things that we look for in determining how responsible a person was when they committed the crime. [ 30 ] In R. v.

Friesen , 2016 MBCA 50 the Manitoba Court of Appeal recognized that many of the impacts on a person’s Central Nervous System as a result of fetal exposure to alcohol are relevant to a person’s degree of responsibility in committing criminal offences. At paragraph 26, Justice Marc Monnin stated as follows: In

summary, an offender’s moral blameworthiness may be reduced if he suffers from an FASD related diagnosis and there is a connection between the condition and the offence for which he stands charged. [ 31 ] The court must have cogent evidence about the diagnosis and its impact:

The sentencing judge must have evidence of the diagnosis and its impact on the accused in order to draw the nexus between that diagnosis and the accused’s conduct relating to the offences. ( Friesen at para. 26 ) [ 32 ] With respect to the FASD analysis and moral culpability, the Crown referred to R. v. Okemow , 2017 MBCA 59 , which sets out a test for determining whether the FASD diagnosis impacts on moral culpability (at para. 73): 1. Is there cogent evidence that the offender suffers from a recognized mental illness or some other cognitive limitations? 2.

Is there evidence as to the nature and severity of the offender’s mental circumstances such that an informed decision can be made as to the relationship, if any, between those circumstances and the criminal conduct? 3.

Assuming the record is adequate, the sentencing judge must decide the offender’s degree of responsibility for the offence taking into account whether and, if so, to what degree his or her mental illness or cognitive limitation played a role in the criminal conduct. [ 33 ] Since the Manitoba Court of Appeal released those decisions, there have been further developments in the area of FASD and the criminal justice system. Manitoba has one of the highest incidence of FASD, and many world leaders in the diagnosis, assessment and treatment of FASD work at the FASD Centre at the Health Sciences Centre in Winnipeg.

As a result of their work and the high number of individuals with FASD coming into the criminal justice system, an FASD Justice Project was created, and the Provincial Court of Manitoba instituted a specialized FASD disposition court in early 2019: . . . to provide the accused with a court environment that takes into account the specific deficits identified in the FASD assessment report and how they might be related to the offender’s moral blameworthiness or degree of responsibility for an offence.

If there is a link between the deficits resulting from FASD and the offending behaviour, the Court would explore how the sentence imposed would best reflect and respond to that link. (http://www.manitobacourts.mb.ca/site/assets/files/1175/notice_-_fasd_dockets_-_adult_and_youth- 1.pdf) [ 34 ] In FASD Court, the offender’s FASD assessment report is filed, along with a Court Docket

Summary and general materials on FASD prepared by the FASD Justice Project. [ 35 ] In Mr. Blair’s case, the FASD Centre assessed him in 2012 when he was 13 years of age. He has a diagnosis of FASD. The FASD Assessment report and a Presentence report evidencing his FASD diagnosis and the impacts were filed in this sentencing. Also filed was the FASD Justice Project Court Docket

Summary materials. The FASD Justice Project materials state that in order to receive a diagnosis of FASD, the person must have severe deficits in three of the nine domains of the brain. [ 36 ] Mr. Blair has severe impairments in four domains of his brain, those being: 1). Executive Functioning; 2). Social Adaptive Functioning; 3). Language, particularly expressive language; and 4). Sensory functioning. [ 37 ] According to the materials filed, when a person’s Executive Functioning is impaired, their ability to organize and control their thoughts and behaviours in order to meet long term goals is affected.

There is an inability to inhibit behaviour and exhibit emotional control. There is an inability to initiate, plan and organize, and self-monitor. Persons whose executive functioning is impaired are impaired in their working memory, which involves the ability to temporarily retain information in memory, perform tasks involving memory and produce a result. Working memory involves attention, concentration, mental control and reasoning.

Impairment in executive functioning manifests as poor judgment, inability to understand consequences and a requirement for external mentoring. [ 38 ] The FASD Assessment report indicates that Mr. Blair has a history of significant issues with impulsivity, executive functioning, emotional regulation and at risk behaviour in the home, school and the community. [ 39 ] The information provided by the defence about the robberies and other offences in this case, as well as the information in the presentence report demonstrates that there is a nexus between the impairment to his executive functioning and his actions.

He did not plan the robberies. He was extremely vulnerable and intoxicated by drugs at the time and felt pressured to participate in the robberies. He was unable to predict the fear that the robbery victims would experience when being accosted with imitation guns that looked like real guns, by two men wearing disguises. [ 40 ] The breaching behaviour was also very typical of a young person or person with FASD, demonstrating an inability to predict consequences of their actions. His curfew was breached when his girlfriend was evicted and he moved out with her.

He assumed a warrant would be out for his arrest, so he did not tell his lawyer or anyone about the move. [ 41 ] Mr. Blair’s grandmother, who raised him for many years and was responsible to getting him assessed for FASD and ADHD as a child, was interviewed for the presentence report. She reported that Mr. Blair’s automatic reaction is to flee when he does something wrong, and that he is a follower and vulnerable to negative influences, including his mother and her associates. [ 42 ] Mr.

Blair has also been involved in many institutional incidents since he has been in custody, which in part demonstrate an impairment in his ability to control himself emotionally. Another breach for which he pleaded guilty was for leaving the Teen Challenge Program when staff there told him his mother showed up “all cracked out” and he became upset and left, again, demonstrating lack of emotional control.

[43] Severe impairments to Social Adaptive Functioning means that the person is unable to adapt to their environment and meet therequirements of daily living. They are often unable to recognize social expectations and access resources. Mr. Blair’s impairment in thisarea is exemplified by his low educational and work accomplishments, his inability to stay sober, have decent, safe housing, maintainhealthy, age-appropriate relationships and so on.

At the time of these offences, he was staying with his drug-addicted mother at theWinnipeg Hotel, hanging out with drug users and the co-accused, and he became involved with his current girlfriend who he met throughhis mother. His girlfriend is twice his age. [44] Severe impairments to Sensory Processing means that his brain cannot take in, organize, interpret and process informationfrom the senses. “A sensory processing disorder means that the brain can’t understand and interpret the information it gets from thesenses.

If sensory processing is impaired this may lead to behavioural, motor, learning and social impairments.” (taken from the FASDCourt Docket

Summary) [45] The FASD Assessment was completed in 2012 by Dr. Chudley and Dr. Longstaffe of the Manitoba FASD Centre, when Mr.Blair was 13 years old. FASD is not a disease that improves or changes with age. As Ms. Carmen Edwards from the FASD JusticeProject noted in court at my request, FASD is an organic brain injury. Thus, the accuracy and applicability of the assessment remainsrelevant and valid over time. [46] Although his IQ is 70, Mr.

Blair’s diagnosis of FASD and his cognitive disability is significant enough that he has beenreferred to the Provincial Alternative Support Services (PASS) program to provide him ongoing support until he is 25 years of age. [47] Similar to the circumstances in the Friesen case, Mr. Blair was extremely intoxicated by drugs on the days leading up to therobberies, and was high on crack cocaine, Xanax and Fentanyl at the time of the robberies. Mr. Blair had a history of drug abuse andaddiction; his girlfriend had just died from a drug overdose and he was using drugs to mask his grief.

As Justice Monnin stated inFriesen: . . . voluntary intoxication is rarely capable of supporting an argument of diminished responsibility as we ascribe to the individual theability to stop the drinking which led him to the situation in question. In this case, however, one must recognize the diagnosis of pFASand what that entails.

Given that the accused was prone to impulsive and irrational actions and with limited ability to foresee theconsequence of his actions, to suggest that his self-knowledge of the effects of alcohol should lead him not to indulge is, with respect,placing too high of an expectation on someone with his diagnosis. It is inconsistent with the medical evidence. Given his diagnosis, I amof the view that his lack of control when intoxicated was a factor in his unprovoked attack. Such conduct stems from his condition and itshould have been considered as a mitigating factor. (at para. 29) [48] I accept that Mr.

Blair’s diagnosis of FASD significantly affected his moral culpability in committing these offences. I acceptthat he played no

part in the planning, but instead, was taken advantage of by older, more powerful and dangerous accomplices. Thevideos demonstrate his rather reluctant and unconfident participation. The circumstances leading up to the robberies and the robberiesare demonstrative of severe impairments to his executive functioning, his social adaptive skills and sensory processing skills. [49] In addition to the FASD factors, there are significant Gladue factors in Mr. Blair’s life which must be taken into considerationwhen determining his moral culpability when he committed these offences. The Gladue Factors Affecting Mr.

Blair [50] As Justice LeBel stated in R. v. Ipeelee, 2012 SCC 13, there is a two-part analysis that is required in s. 718.2(

e) of thesentencing part of the Criminal Code. The first part of that analysis determines how the Indigenous person’s background impacts theproportionality analysis: First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level ofmoral blameworthiness. . . . . Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack ofopportunities and limited options for positive development.

While this rarely - if ever - attains a level where one could properly say thattheir actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances maydiminish their moral culpability. As Greckol J. of the Alberta Court of Queen's Bench stated, at para. 60 of R. v. Skani, 2002 ABQB1097, 331 A.R. 50, [page478] after describing the background factors that lead to Mr.

Skani coming before the court, "[f]ew mortalscould withstand such a childhood and youth without becoming seriously troubled." Failing to take these circumstances into accountwould violate the fundamental principle of sentencing - that the sentence must be proportionate to the gravity of the offence and thedegree of responsibility of the offender. (at para. 73) [51] Similarly, Justices Cory and Iacobucci stated in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688: The background factors which figure prominently in the causation of crime by aboriginal offenders are by now well known.

Years ofdislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment, lack ofopportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation. (Gladue, at para.67) [52] Mr. Blair lived in circumstances of social and economic deprivation for most of his life, acutely so at the time of theserobberies. [53] He was born with a brain injury caused by prenatal consumption of alcohol by his mother, who is the parent of Indigenousbackground. Half his siblings were born with FASD.

His mother has continued to struggle with addictions throughout her life to thisday, and is a destabilizing and violent influence on Mr. Blair. All her children have been apprehended and placed in care. Mr. Blairgrew up witnessing domestic violence against his mother by his father, who also has drug addictions and a criminal history. Mr. Blairexperienced transiency and being “bounced around” between his mother’s home, his grandmother’s and then within Child and FamilyServices to various group homes, including one in Saskatchewan, foster homes and jail. Despite his grandmother’s efforts, Mr.

Blair’seducation is limited, as is his employment history. He has lost people in his life to drugs, and ill health. He has been poor and he has

been victimized for his whole life. [ 54 ] He has been isolated from his culture and language as an Indigenous person. He was not exposed to Indigenous culture. He is not sure about whether his family went to residential school. His mother was disconnected from her Indigenous heritage, language and culture. [ 55 ] The combination of the Gladue factors in Mr. Blair’s life and the severe impairments to the brain domains caused by his FASD significantly impacted his moral culpability in committing these offences.

OTHER SENTENCING PRINCIPLES: MITIGATING AND AGGRAVATING FACTORS, PARITY AND RESTRAINT [ 56 ] It is aggravating that these offences occurred in broad daylight and there were many customers present who were no doubt very frightened by the robberies. It is aggravating that Mr. Blair was wearing a disguise. The “count down” that he spoke during one of the robberies is aggravating, although Mr. Blair does not remember it. [ 57 ] There are also many mitigating factors. Mr. Blair took responsibility for the offences when he was talking to the police, to the writer of the presentence report, to his lawyer and in court.

He did not excuse himself. His confession to the police was the crux of the case against him. I was told that the confession was given in circumstances where the police were abrasive and aggressive to him and suggested his mother would be arrested if he did not confess, such that there could have been a challenge to the statement’s voluntariness. Despite this, Mr. Blair insisted on pleading guilty to the offences. [ 58 ] Moreover, he has always expressed remorse for the victims and wishes he could apologize to them. He recognized afterwards how frightened they must have been. He wished he had fought Mr.

Sampson and not participated in the robberies. He composed a letter of apology and remorse which he read into Court and provided me a copy. I note it was written in very rudimentary printing, with a pencil, on a page taken from a day calendar. I appreciate the effort and the sincerity in this action. [ 59 ] Mr. Blair’s youth is also mitigating. [ 60 ] The principle of parity militates against a sentence of six years for the robberies for Mr. Blair. The co-accused, Mr. Sampson received a time-served sentence of 351 days and two years of unsupervised probation.

He is a mature adult, 50 years of age, with a lengthy and serious criminal record, including previous robberies and two life-time firearms prohibitions. He was the instigator and leader of the robberies. Mr. Lambert, the driver, is also a mature adult. The charges against him were stayed. Neither of the co-accused have diagnoses of FASD or any cognitive issues, unlike Mr. Blair. It is difficult to understand why the Crown would be seeking a sentence of six years against Mr.

Blair, in light of the sentences imposed for the other offenders whose moral culpability is much higher. [ 61 ] The Criminal Code requires that judges exercise restraint in sentencing offenders, particularly Indigenous offenders, in s. 718.2(

d) and (e). Although the Crown stated that Mr. Blair’s record disentitles him to leniency, that is not the case here. Mr. Blair’s record is mostly a youth record. It cannot be treated the same way that an adult record disentitles an offender to leniency. He has spent very little time in custody in the past, and of course has never had a federal sentence imposed. [ 62 ] Mr.

Blair has suffered significantly during his remand status, more than most other offenders. [ 63 ] First, I recognize that Indigenous offenders often experience jail more acutely and negatively than non-Indigenous offenders ( Gladue at para. 68 ). [ 64 ] Secondly, Mr. Blair suffers from impairments to the domains of his brain that control expressive language, his ability to adapt to his environment, his executive functioning, and his ability to process sensory messages in a positive manner. Living in a jail would be very difficult for a person with these disabilities. It has been extremely hard for Mr. Blair.

Defence counsel has been significantly involved with Mr. Blair during his presentence incarceration because of the particular hardships and abuse he has experienced. There is nothing in his institutional file about his diagnosis of FASD. Ms. Edwards of the FASD Justice Project confirmed that this is information that the correctional institutions should have, and that the FASD Justice Project is available to provide education and consultation to correctional staff. [ 65 ] Mr. Blair’s FASD has led him to be victimized during his life.

This unfortunately continued recently while he has been on remand status. [ 66 ] At some point earlier he became part of a gang. He has now left the gang, but while he was at Brandon Correctional Centre (BCC) he was sexually assaulted by three other inmates either to be released from the gang, or as a consequence of not wanting to be in the gang. The matter was reported to the City of Brandon police who apparently laughed at him and asked if he was serious about making a complaint. He was told that the police would return to the jail and take him to the police station to make a formal, videotaped statement.

They never returned. The Crown Attorney during this sentencing advised she will follow up on this. [ 67 ] Mr. Blair’s tenure at BCC was hellish. He was in “the hole”, the slang term for solitary confinement, between May and October, 2020. His mental health was compromised significantly. I can take judicial notice of the fact that extended periods of solitary confinement is a dangerous practise now denounced by the United Nations.

He and his lawyer requested transfers numerous times which were denied, and his lawyer wrote to the Superintendent at BCC, but did not receive a response. [ 68 ] He was involved in many incidents in jail but mostly at BCC, and I find, mostly because his FASD was not understood nor accounted for. [ 69 ] Mr. Blair has been in jail for the entirety of the COVID-19 pandemic affecting all Manitoba jails. Inmates are more isolated than ever before. There are no programs. There is no fresh air. There are no activities. For a person like Mr.

Blair, with not only FASD, but significant ADHD, this has been extremely difficult.

[70] He went into custody May, 2020 and spent two weeks in quarantine at the Winnipeg Remand Centre, and then was sent toBCC. He was finally moved out of Brandon to Milner Ridge (MRCC) in October, 2020. Although there was some information in themedia about inmates being provided games and computers, defence counsel advised that they are passed around among a small numberof inmates; Mr. Blair has not seen one game. [71] In 2017, Mr. Blair decided to convert to the Muslim faith. He likes to practise his faith and also to engage in Indigenouspractises, such as sweats and smudging.

There was no spiritual care provided during his time in remand status. [72] No one has been allowed outside since the end of October. [73] Defence counsel described Mr. Blair as “mentally worn out.” It is not hard to see why this vulnerable young man would bementally worn out. [74] Despite many hurdles and hardships, Mr. Blair does have some good prospects for rehabilitation. He is young. His cognitivepotentials are not that bad. Ms. Edwards advised that he can have the support of the FASD Justice program for the next four years untilhe is 25.

He recognizes that his mother is not a healthy person and he does not want to continue his relationship with her unless and untilshe is sober. His girlfriend has also broken ties with his mother. He wants to focus on drug treatment and is interested in entering atreatment program. He was accepted to the Behavioural Health Foundation but was not granted bail. He has a young daughter who hasmoved back to Winnipeg with her mother and he wishes to develop his relationship with her. He is interested in the BUILD program.

He had a good relationship in the past with one of his Probation Officers and did all the programming asked of him on his last probationorder. He has an ongoing, close and supportive relationship with his grandmother. He tried to get into the Winding River Programwhile he was at Headingley Correctional Centre, but because of past gang affiliations, and because his father was in the program, he wasnot accepted. He was told he was ‘wrong’ by a correctional officer in the one program he was involved in, which led him to quit. SENTENCE [75] Mr. Blair has pleaded guilty to very serious offences, robberies.

But I am convinced that his moral culpability in committingthese offences was greatly reduced due to the combination of his FASD brain injury and his circumstances as an Indigenous person. Theparticular brain domains affected by prenatal alcohol exposure in Mr. Blair’s case include executive functioning, adaptive functioningand sensory processing, which cause impulsivity, an inability to foresee consequences, poor judgment and an inability to function well insociety and process sensory information.

Underlying the FASD are also his circumstances as an Indigenous person that have affectedhim before and since his birth which also reduces his moral culpability. [76] I also take into account what happened to his co-accused: charges were stayed against the getaway driver and Mr. Sampson,the orchestrator, received a less than one-year jail sentence. [77] I also take into account his sincere expression of remorse and I am guardedly optimistic about his prospects for rehabilitation. He has managed to stay sober and clear of the criminal justice system in the past for a lengthy period of time.

He has a past positiverelationship with a probation officer. He has had some success at rehabilitation. He has positive family in his grandmother and littledaughter. [78] I also take into account the extremely tragic and horrific time he has already suffered in jail. His experience in presentencecustody cannot be discounted. It has been exacerbated by COVID-19. Section 719(3.1) does not allow the court to credit more than oneand one-half days for every day spent in custody, however, I do take into account the conditions he has already suffered in imposing hissentence going forward. COVID-19 is not over.

The conditions of isolation and deprivation will continue at least for awhile. [79] All law is imbued with Charter values.

Section 12 of the Charter provides that everyone has a right not to be subject to crueland unusual treatment or punishment. [80]

Section 12 is concerned with the effects of punishment and the reasons for the punishment. The effects are balanced againstthe particular circumstances of the offence and the offender, and the purpose being sought by imposing the impugned sentence (R. v.Smith, (SCC), [1987] 1 S.C.R. 1045). Thus, solitary confinement has been found to violate

section 12 where it is soexcessive as to outrage standards of decency (R. v. Olson (1987), (ON CA), 38 C.C.C. (3d) 534 (Ont.C.A.), aff’d (SCC), [1989] 1 S.C.R. 296). [81] The Supreme Court determined in Smith, the first case where it struck down a mandatory minimum, that

section 12 governs the“quality of the punishment” and “is concerned with the effect that punishment may have on the person on whom it is imposed” (at1072). [82] Accordingly, it is appropriate to consider the effect of a further custodial sentence on this young Indigenous man who suffersfrom FASD and ADHD and who has already experienced cruel and unusual conditions in jail. [83] Taking all these considerations into account, I sentence him as follows. [84] The sentence on the robberies will be a concurrent period of 18 months. There will be a three-month concurrent sentence forwearing the disguise.

The mandatory minimum consecutive sentence of one year will be imposed on the use of the imitation firearm incommitting the robberies. The two breaches committed by Mr. Blair on August 11, 16 and 17, 2019 are curfew breaches committedaround the same time, and under the same conditions as the robbery. The sentence for them will be one day concurrent to each other andto the robberies. The sentence for breaching his release order by leaving the Teen Challenge Program will be his one-day courtappearance. The total sentence is 30 months. Subtracted from that is the time that Mr.

Blair has already spent in custody, which I amdeeming to be two years or 24 months. He therefore has six months remaining on his custodial sentence. [85] His custodial sentence will be followed by two years of supervised probation. The conditions of his probation order will be asfollows:

- Report to Probation Services within 24 hours of your release from jail and thereafter as required by your Probation Officer; - Reside as directed by your Probation Officer and do not move without consulting with your Probation Officer; - Take any addictions programming and treatment recommended by your Probation Officer; - Work with the FASD Justice Project; - Participate in any New Directions programming, such as the Work2It program; - Accept assistance from the PASS program; - Have your gang tattoos removed through the GAIN program; - Participate in other therapeutic, educational and employment programming recommended by your Probation Officer; - You must have no contact or communication with victims Adam Gaunt and Sameer Gulati, and you must not attend the Shoppers Drug Mart located at 1128 Henderson Highway, nor the Four Crowns Vendor at 1030 McPhillips Street; - You must have no communication with Charles Lambert or William Sampson; - You must possess no weapons. [ 86 ] The following ancillary orders are made: a DNA order is made with respect to the primary designated offence of robbery.

There is also a mandatory weapons prohibition pursuant to

section 109 for the robbery; it will be for 10 years. Forfeiture of all items seized is also ordered. ″ Original signed by: ″ C.A. DEVINE, P.J.