R. v. Cardinal Date:, 2013 BCPC 282

Citation: R. v. Cardinal Date: 20130822 2013 BCPC 0282 File No: 198558-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LEONARD CARDINAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. D. MILLER Counsel for the Crown: J. Machek Counsel for the Defendant: I. Ferbey Place of Hearing: Surrey , B.C. Date of Hearing: July 4, 11, 2013 Date of Judgment: August 22, 2013

[ 1 ] THE COURT : The offender is before me to be sentenced on two very serious offences; a robbery committed May the 5th, 2011, and an aggravated assault committed August the 12th, 2012. Guilty pleas were entered March the 11th, 2013, after which a pre- sentence report and so-called Gladue report were prepared and filed. A sentencing hearing took place over two days earlier. [ 2 ] Prosecutor Machek filed a 32-page written submission which included an extensive account of the alleged facts of the two offences.

Although defence counsel added some information with respect to both offences, he did not dispute what I was told by the Crown. [ 3 ] The robbery was a serious one indeed. It involved the participation of several people. Much of the actual robbery was captured on CCTV, or closed caption television. The parties involved were under surveillance by the police, though the offender before me was not a target of that surveillance as he had only come to be involved with the robbery gang a day or so before. [ 4 ] The police watched the robbery team arrive at the Willowbrook Mall in Langley just before noon.

The apparent leader of this robbery gang, Weinmeyer, went into the mall carrying a brown bag with a gun in it. He entered the target store, Golden Creek Jewellers, and made some inquiries of a clerk. He looked at some of the more expensive watches on display. There was also some interaction between Weinmeyer and a customer, Mr. Mitutu, and his one-year-old child in a child's stroller. Weinmeyer then makes a cell phone call, presumably to the rest of his gang. [ 5 ] Three of those gang members, including Cardinal, are seen to make their way to the jewellery store.

The robbery commences when one of those three (Ladoucer) sprays a security guard with bear spray. The offender Cardinal and another one of the gang (Reinke) jumped over the display counter and began to steal watches. Mr. Mitutu tried to intervene, but the offender Cardinal threw merchandise at him and Ladoucer sprayed him with the bear spray. Fearing for the safety of his baby, Mr. Mitutu backed off. [ 6 ] When the gang had obtained as much merchandise as seemed obtainable, Cardinal, Reinke and Ladoucer fled. Weinmeyer lagged behind a bit, produced his gun from the bag and fired two shots into the ceiling.

Then he too fled. They all then entered a number of getaway cars but are quickly apprehended and arrested by the police. [ 7 ] The robbery has, I think, been appropriately described as thoroughly planned; however, the Crown does not allege that the offender Cardinal played a role in or knew of in advance the planning. Defence counsel says he only joined this robbery team the day before the robbery out of a need to get money to return to Alberta. Defence counsel also says that it is his client's position that he did not know Weinmeyer had a gun.

The Crown makes the submission that even if the offender Cardinal cannot be shown to have knowledge of the gun or to have taken

part in the extensive plans, he was part of an organized robbery of a jewellery store in daytime hours where violence was employed, including by Cardinal. Weapons (bear spray) were also employed. The potential for tragedy was very much present. [ 8 ] The aggravated assault occurred in jail and the victim was another inmate. The offender had been denied bail after his arrest on the robbery charge, and was on remand status in the North Fraser Pre-Trial Centre at the time of the assault. The victim, Margison, was in cell number 22 while the offender, Cardinal, was in cell number 23.

They were in an area of the jail called Charlie West, which I am told is the general population unit where, during the day, prisoners are not confined to their cells and can visit one another in their own cells. [ 9 ] On the day of the offence and just prior to it, the offender was on the phone to a friend of his outside the jail. This call was recorded. The offender told his friend what he was going to do, and left the phone off the hook while he beat Margison so that his friend could hear the beating. The offender then went into Margison's cell and beat him savagely.

The whole of the beating itself was not witnessed by anyone, and the injuries sustained by Margison are such that he has no recollection of the events. However, a guard did hear something that caused him to attend to the area where he saw the offender standing over the prone Margison, delivering a "stomping blow" to Margison's head. [ 10 ] The guard ordered him to stop but the offender did not immediately comply, preparing himself instead to deliver another such "stomping blow" when the guard employed his pepper spray. This subdued the offender.

This guard described the kick that he saw the offender deliver to Margison's head as a "ten out of ten" in terms of force. "As much force as he possibly could." [ 11 ] The injuries suffered by Margison were catastrophic, or "severe traumatic brain injury". Paramedics apparently saved his life, though his breathing had stopped. He was comatose for several months, requiring round-the-clock care. His condition improved a bit over time but now seems to have plateaued and not much further improvement is expected.

He remains in hospital and requires round- the-clock care and assistance with all basic activities such as washing, dressing, hygiene (which I take it means going to the toilet) and feeding himself. He apparently can only walk with the aid of a step-walker, and even that would seem to be impaired. His speech and memory apparently are very impaired. He is constantly medicated for pain, emotional distress and brain function impairment.

The report would indicate that this is now Margison's lot in life. [ 12 ] When asked about his reaction to what he had done to this man, the offender told his probation officer that although he "feels bad for having hurt a person, he does not feel bad for hurting the person he believes the victim to be".

The offender explains his attack on this man by saying it was a pre-emptive strike due to some rumoured threats in the jail's subculture. [ 13 ] Defence counsel explained that his client says he had heard through the jail rumour mill that Margison was going to attack him so he felt he should attack Margison first. He felt that would result in his being transferred to another unit and thus out of harm's way. There is nothing that supports this version of why this happened, not even the offender's testimony. There was a note received by the offender six months after this assault.

It is obscene, racist and perhaps threatening, but it does not support the offender's story of why he attacked Margison and I found it of little or no help. [ 14 ] In addition, the two transcripts of telephone conversations are inconsistent with this explanation. In the conversation with this unidentified friend that takes place before the attack he discusses other matters with that friend for quite awhile, and then, out of the blue,

says, "Hey, dude, you wanna hear me get into a fight or what?" He repeats the question, and when the friend says, "No, it's all right," the offender says, "No, it's something I'm supposed to do anyway." He says, "Margison is a punk." Then he tells his friend that he is "psyching" himself up for the fight and invites his friend to listen in on the fight when he leaves the phone off the hook and goes to beat up Margison. [ 15 ] At no point does he say anything about doing this to prevent harm from befalling himself.

In another recorded call to that same friend after the assault, the offender Cardinal laughs about what he has done and says that Margison "was calling me a goof and shit". It has become apparent to me over the years that calling somebody a "goof" in a jail setting is thought to be a particularly vile insult. Cardinal laughed about what he had done to Margison a number of times, and acknowledges that there will be consequences for what he has done but says he doesn't care as "it was for a good reason" (i.e. calling him a goof).

This lack of insight into the affect of his criminal behaviour on others is also evident with respect to the robbery which he explained to his probation officer was a way to get back to Alberta. [ 16 ] There was a pre-sentence report prepared and filed, as well as a Gladue report as Cardinal is a First Nations individual. They describe the offender as a 34-year-old member of the Cree Nation, born and raised in Alberta. His upbringing was chaotic and deprived. His father died when he was only three years old. His mother was an inadequate parent that was apparently addicted to alcohol.

The offender was raised by a number of people, none of whom seemed up to the task and many of whom set a bad example for him with their criminal lifestyle. [ 17 ] Cardinal began abusing drugs and alcohol and engaging in criminal behaviour very early on. His first criminal conviction was entered in August of (text removed for publication). He was first put in custody for several convictions a year later.

His record after that, to the present, is replete with convictions for multiple offences, including many for violence. [ 18 ] The Gladue report indicates that the offender has been involved in gang activity although he claims to be trying to end that involvement. He has no employment history, nor any real education, nor any plans to get an education. He has had two women in his life and one of them bore him a daughter after a four-month relationship.

Although he professes to want to parent that daughter, he has never contacted her nor taken any real steps to contact her. [ 19 ] He says he has a farm in Alberta that was left to him by his grandfather, but the nature of that farm and its title is quite vague. It is claimed that "his mother is the title holder until he is released and can manage his affairs". He states that it is his intention to return to the area where this farm is located, and apparently the Band members are not adverse to his return. They have indicated that there are some resources available in the community that the offender could access.

He has never lived in this area, but he now hopes to do so some day. [ 20 ] The offender did not attend a residential school, though his parents and other family members did. The offender did not know that about them until recently, and says he learned about residential schools in the media and by watching videos in prison. He says he is now aware of the "intergenerational effects of residential schools". [ 21 ] The Gladue report filed in this matter outlines various restorative options, both in custody in the federal system and out of custody.

The offender Cardinal has been in custody awaiting sentence since his arrest on May the 5th, 2011, which means the total time spent in custody, for the purposes of s. 719 of the Criminal Code , is 27 months. Defence counsel began an argument that I should give the offender one-and-a-half days for each one of those days, but then abandoned that argument. [ 22 ] There is really no question, and none was raised, that any prison term imposed for these two offences should be ordered to be served consecutively and not concurrently.

I agree with that position. [ 23 ] Crown counsel says that the range of sentence that is appropriate here for the robbery would be five to six years, and they also say that the range of sentence that is appropriate for the aggravated assault would be six to eight years. This would be a total sentence of 11 to 14 years, less the 27 months for the time already spent in custody. They say they arrived at this range having considered s. 718.2(e), or the so-called Gladue principles.

They also say that when considering the totality of these two ranges, 14 years would be unduly harsh, and therefore the total sentence should be 11 years less the 27th months. [ 24 ] Defence counsel says that I should consider that the time already spent in custody of 27 months should be the sentence imposed for the robbery; in other words, considering time served I should sentence the offender to one day on the robbery. He says applying the considerations outlined in the Supreme Court of Canada decision of Gladue and other cases that considered s. 718.2(

e) should result in a sentence on the aggravated assault charge of two years in prison and a three-year probation order, for a total sentence of five years. [ 25 ] Insofar as the robbery sentence is concerned, I agree that the range of sentence suggested by Crown is more or less correct; a violent and dangerous planned robbery of a jewellery store in a shopping mall must be dealt with severely. While the offender might not have known a gun was present and would be used, he must have known the potential for tragedy was very high. While he might not have participated in all the planning, he must have known that he was taking

part in an organized assault upon this store, its employees and its customers. [ 26 ] With respect to the aggravated assault I have concluded that, subject to the consideration of the offender's background and other relevant matters, the range of sentence appropriate to this crime is considerably higher than the six to eight years suggested by the Crown. I base this conclusion on the cases supplied that refer to cases of serious aggravated assault with devastating consequences to the victim. The review done of those cases by my brother Judge Ball in R. v.

Quintana , decided February the 12th, 2008, led him to what I think is the correct position in such cases; the appropriate range of sentence is eight to 12 years. [ 27 ] The crime before me is a terrible one. Whether or not it was motivated by Cardinal's desire to make a pre-emptive strike on someone he thought was a danger to him, or his desire to be disciplined for the assault and moved to a different unit in the jail, matters little to me. I do not believe that story in any event.

The conversations that he had with his unknown friend just prior to and just after the assault are inconsistent with that explanation for his actions. The transcript of his pre-assault conversation seems to reveal that this was a crime planned by the offender just for the enjoyment of it. The Crown has told me they do not want me to draw any inference from

Cardinal's statement that, "It's something I'm supposed to do anyway," and I do not draw any inferences. The transcript of his post- assault conversation with that same unknown friend seems to indicate that the motive was revenge for Margison's insults. Irrespective of these motives, it is clear that this attack was motivated and planned. [ 28 ] I am told very little about Margison, other than he was age 27 and also a prisoner on remand. The injuries inflicted by the offender on Margison are many and catastrophic. Margison's life is drastically and permanently affected.

There seems to be little or no hope for improvement. He will apparently spend the rest of his life needing round-the-clock care in an institution. [ 29 ] The offender's insight into what he has done seems minimal as he "does not feel bad for hurting the person he believes the victim to be". [ 30 ] I then turn to the offender's background, including his Aboriginal circumstances. I am directed to do so by s. 718.2 (

e) of the Criminal Code , and the Supreme Court of Canada decisions of Gladue and Ipeelee , as well as other appellate decisions. The Criminal Code, Gladue and Ipeelee make it very clear that I must consider "the unique situation of the Aboriginal offender, the only discretion concerns the determination of a just and appropriate sentence". I am doing that when I ponder this case before me and when I try to determine the just and appropriate sentence for the offender Cardinal and these two crimes. [ 31 ] This case is very similar to R. v. Johnny decided in the B.C. Court of Appeal January the 20th, 2011.

Johnny and Cardinal are both Aboriginal males with tragic backgrounds. Johnny was 28, Cardinal is now 34. Both had "sad but dreadful histories". Both have extensive criminal records. Of both it can be fairly said that they clearly present a continuing danger to any community they find themselves in. Of Johnny, Mr. Justice Hall said: The only way in which the public can be protected from further carnage by this unfortunate individual is by his separation from society for a lengthy period. I have concluded that the same must be said of the offender Cardinal. [ 32 ] The Johnny case is instructive in other ways.

The robbery that resulted in a five-year sentence that was upheld by the Court of Appeal has similarities to the one I am to sentence Cardinal on in that it was a jewellery store and presented a dangerous situation to those in the vicinity. The aggravated assaulted that resulted in a six-and-a-half-year sentence also had similarities to the case before me in that the injuries to that victim were severe and permanent.

There are things that are different between Johnny and Cardinal, but the similarities are striking. [ 33 ] I am very much taking into account the offender Cardinal's Aboriginal circumstances, and I am very much trying to abide by what the Supreme Court of Canada says I should do. The history of Aboriginal life in Canada has been dismal. The background of Cardinal in the Aboriginal community has been dreadful. However, he has chosen a life of crime, perhaps to emulate his criminal uncles.

He has not taken advantage of educational opportunities that may have presented themselves; he has not chosen to contribute to his community or the general community by way of working. He has instead chosen to live a life as a dangerous criminal. [ 34 ] I have to take into account many things when I sentence someone like Mr. Cardinal. These things are set out in the Criminal Code and in the common law. When dealing with a violent and dangerous offender, the protection of the public is something that must be seriously considered. [ 35 ] First, the robbery. I agree that the range here is five to six years.

The appropriate sentence, if this robbery was the only sentence before me, would be six years. Then I turn to the aggravated assault. I believe the appropriate sentence for this offence, if it was standing on its own and not yet taking into account the totality of the two sentences nor the offender's special circumstances as an Aboriginal offender, would be nine years.

When I total those two sentences, take into account the totality of them and the Crown's position on that total, and also take into account the offender's circumstances as an Aboriginal offender, I have concluded that the sentence should be 11 years. [ 36 ] I would apportion those 11 years to be four-and-a-half years for the robbery and six-and-a-half years for the aggravated assault. I then must give the offender credit for the time he has spent in custody before today. This is 27 months.

Those 27 months should be subtracted from the robbery sentence, meaning the Warrant of Committal sentence on the robbery will be 27 months from today's date. The six-and-a-half years for the aggravated assault will be served consecutively to the robbery, and the Warrant of Committal will reflect the full six-and-a-half years, or 78 months, consecutive.

This totals 105 months, or eight years nine months from today's date. [ 37 ] I raised the issue of delayed parole and s. 743.6, but as neither counsel wanted me to make such an order, I will not do that. [ 38 ] There was no issue raised about my being required to make an order under s. 487.051 in Form 5.03, authorizing the taking of such number of samples of bodily substance from the offender that are reasonably required for the purposes of a DNA analysis, and I make that order. [ 39 ] Nor was there any issue about it being mandatory under s. 109 for me to prohibit, for the rest of his life, the offender from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.

I do make that order. [ 40 ] Both these last orders apply to both counts. [ 41 ] Under s. 743.2, I am ordering that my Reasons for Judgment and the reports that have been prepared for this sentencing be forwarded to the Correctional Service of Canada. To the extent that programs are available to assist the offender to join society as a contributing member some day, I recommend that they be made available to him. [ 42 ] I waive the victim impact surcharge.

(REASONS FOR SENTENCE CONCLUDED)