R. v. Clarke, 2020 NLSC 97

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Clarke , 2020 NLSC 97 Date : July 8, 2020 Docket : 201801G7003 Her Majesty The Queen v. Leonard Clarke Before: Chief Justice Raymond P. Whalen Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: November 4, 5, 6, 25, 2019 February 21, 2020 June 16, 2020 Date of Oral Judgment: July 8, 2020 Appearances: Alison M. Doyle Appearing on behalf of the Crown Mary L. Boulos Appearing on behalf of the Offender

Authorities Cited: CASES CONSIDERED: R. v. Clarke , 2019 NLSC 208 ; R. v. Morrisey , 2000 SCC 39 ; R. v. Healey , [2018] N.J. No. 127, 147 W.C.B. (2d) 418 (N.L. Prov. Ct.) ; R. v. McIvor , 2018 MBCA 29 ; R. v. Nasogaluak , 2010 SCC 6 ; R. v. Ipeelee , 2012 SCC 13 ; R. v. Wills , 2014 ONCA 178 , (aff’d 2014 SCC 73 ); R. v. Gordon , 2017 ONCA 436 ; R. v. Newman , 2009 NLCA 32 ; R. v. M. (B.C.) , 2008 BCCA 365 ; R. v. Roberts , [1989] B.C.W.L.D. 1951 , B.C. J. No. 1251 (C.A.); R. v. Bowman (2013), 1066 A.P.R. 202, 343 Nfld. & P.E.I.R. 202 (N.L. Prov. Ct.) ; R. v. Hunt , 2007 NLTD 204 ; R. v.

Hicks , 2007 NLCA 41 ; R. v. Safarzadeh-Markhali , 2016 SCC 14 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Whalen, C.J. : INTRODUCTION [ 1 ] Following trial on November 4-6, 2019, Leonard Clarke (“the Offender”) was found guilty as a party to the offence of robbery, contrary to s. 343 (

d) of the Criminal Code , R.S.C. 1985, c. C-46 . A sentencing hearing took place on June 16, 2020, and, having heard the submissions of both counsel, I reserved my decision until July 8, 2020. The Offender now appears for sentencing. ISSUE [ 2 ] The issue for the Court is the determination of a fit and proper sentence for the Offender. FACTS The Offence [ 3 ] Written reasons for conviction and the full background of the offence can be found in my judgment filed November 25, 2019, with citation R. v. Clarke , 2019 NLSC 208 .

I reproduce the facts relevant to the sentencing here. [ 4 ] On June 7, 2017, a masked male armed with what appeared to be a shotgun entered Green’s Pharmacy (“the Pharmacy”) in Conception Bay South and demanded drugs and cash. [ 5 ] The masked male exited the Pharmacy with narcotics worth $4,914.79 and $229.44 in cash and ran towards a white van idling in an adjacent gravel lot. The Offender, who served as the getaway driver, was waiting in the van. The masked male jumped into the van, which then sped away from the scene.

The Offender [ 6 ] The circumstances of the Offender were set out in a Pre-Sentence Report (“PSR”) provided to the Court by Corrections and Community Services. [ 7 ] The PSR detailed that the Offender is 63 years old and single. He reports a normal upbringing as the youngest in a large family. He has a lengthy criminal history, although he has had no convictions since 2011. He has a grade 10 education, and has generally been employed as a labourer. He has been unemployed since 2016. [ 8 ] The PSR indicates that the Offender has one adult daughter, with whom he has no contact or communication.

He also has four children between the ages of 9 and 12 from a more recent relationship. The four children reside with their mother and have done so since the breakdown of their relationship approximately four years ago. He had very little contact or communication with his children for a number of years until November 2019, according to Ms. Kayla Clarke, a Social Worker with the Department of Children, Seniors and Social Development (“CSSD”), or January 2020, according to the Offender and the children’s mother, Ms.

Elsi Stanford. [ 9 ] In the PSR, the Offender reports a history of alcohol abuse, although he claims to have been sober for a number of years as a result of medical issues. Ms. Stanford reports that the Offender’s addiction to alcohol has interfered with him having a relationship with his children, although she is optimistic he can overcome his addiction issues by accessing programs and services. She was not in contact with the Offender from December 2018 to December 2019. [ 10 ] The PSR notes that the Offender has been receiving income support from the Provincial Government since 2017.

He lives in board and lodging accommodation. He was previously employed as a general labourer in his brother’s landscaping business. [ 11 ] The PSR notes that the Offender was unwilling to discuss particulars of the offence.

POSITION OF THE PARTIES Crown’s Submission [ 12 ] The Crown seeks a five year sentence of imprisonment. In support of the five year sentence, the Crown submits that the Offender should be sentenced pursuant to s. 344(1)(a.1) of the Criminal Code , which imposes a minimum sentence of imprisonment of four years where a firearm was used in the commission of the robbery. The Crown, citing the reasons of Justice Arbour in R. v. Morrisey , 2000 SCC 39 , submits that the minimum sentence creates an “inflationary floor” that is only available to the “best” offender. The Crown further submits that Mr.

Clarke is not the best offender. [ 13 ] The Crown points to the sentencing precedents summarized at paragraph 80 of R. v. Healey , [2018] N.J. No. 127, 147 W.C.B. (2d) 418 (N.L. Prov. Ct.) in further justification of the five year sentence submission. [ 14 ] The Crown further submits that the sentence for a getaway driver should not differ from the sentence appropriate for the principal who committed the robbery, citing R. v. McIvor , 2018 MBCA 29 .

Defence’s Submission [ 15 ] By contrast, Counsel for the Offender submitted that the minimum sentence in s. 344(1)(a.1) of the Criminal Code is not applicable, as the Crown did not establish beyond a reasonable doubt that a firearm was used in the commission of the offence. Counsel for the Offender submitted that a sentence of less than four years would be appropriate in this case. In the alternative, counsel for the Offender submitted that, should I find that s. 344(1)(a.1) does apply, then the minimum sentence should be imposed. [ 16 ] Counsel for the Offender further pointed to Mr.

Clarke’s reconnection with his young children as a mitigating factor on sentencing. LAW AND ANALYSIS Objectives and Principles of Sentencing [ 17 ] The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code . That

section provides that: 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community. [ 18 ]

Section 718.1 sets out the fundamental principle of sentencing. That

section provides: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 19 ] Further relevant principles are set out in s. 718.2, which states in part: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

… (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, … shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; … [20] In R. v. Nasogaluak, 2010 SCC 6, Justice LeBel spoke to the effect of these provisions at paragraphs 39 and 40: 39. … The objectives and principles of sentencing were recently codified in ss. 718 to 718.2 of the Criminal Code to bring greaterconsistency and clarity to sentencing decisions.

Judges are now directed in s. 718 to consider the fundamental purpose of sentencing asthat of contributing, along with crime prevention measures, to "respect for the law and the maintenance of a just, peaceful and safesociety".

This purpose is met by the imposition of "just sanctions" that reflect the usual array of sentencing objectives, as set out in thesame provision: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation, and a recent addition:the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community. 40. The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be "proportionate to the gravityof the offence and the degree of responsibility of the offender".

Thus, whatever weight a judge may wish to accord to the objectiveslisted above, the resulting sentence must respect the fundamental principle of proportionality.

Section 718.2 provides a non-exhaustivelist of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parityand totality, and the instruction to consider "all available sanctions other than imprisonment that are reasonable in the circumstances",with particular attention paid to the circumstances of aboriginal offenders. [21] In Nasogaluak the Supreme Court of Canada indicated that none of the sentencing objectives take priority over the others.

Thesentencing judge must determine the weight to be accorded to each objective when looking at the facts of the case, the circumstancessurrounding the offence and the particulars of the offender before the Court. The objective is to make the sentence proportionate to thegravity of the offence and the degree of responsibility of the offender. [22] In R. v. Ipeelee, 2012 SCC 13, the Supreme Court of Canada stated at paragraph 37 that: 37.

The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing - themaintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of theoffence. This is closely tied to the objective of denunciation.

It promotes justice for victims and ensures public confidence in the justicesystem. As Wilson J. expressed in her concurring judgment in Reference re s. 94(2) of the Motor Vehicle Act (British Columbia), (SCC), [1985] 2 S.C.R. 486 (S.C.C.), at p. 533: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentenceproportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishmenthe received and feel a confidence in the fairness and rationality of the system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [23] Keeping these general sentencing objectives and principles in mind, I turn now to a consideration of the specific sentence forthis Offender. minimum sentence

[ 24 ] The Offender here was found guilty of robbery, contrary to s. 343 (

d) of the Criminal Code : 343. Every one commits robbery who …. (

d) steals from any person while armed with an offensive weapon or imitation thereof. [ 25 ] The penalty for robbery is set out in s. 344(1) of the Criminal Code . That subsection provides, in relevant part: 344.

(1) Every person who commits robbery is guilty of an indictable offence and liable … (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (

b) in any other case, to imprisonment for life. [ 26 ] In order for the penalty set out in paragraph 344(1) (a.1) to apply, the Offender must have used a “firearm”. A conviction under s. 343 (

d) does not lead inextricably to a finding that s. 344(1) (a.1) applies. It is sufficient for the purposes of s. 343 (

d) that the offender in question used a “weapon” or an “imitation thereof”. To trigger the mandatory minimum sentence in s. 344(1) (a.1), the Crown must establish beyond a reasonable doubt that a “firearm” was used (see R v. Wills , 2014 ONCA 178 , at para. 48 , aff’d 2014 SCC 73 ). Otherwise, s. 344(1)(

b) applies. [ 27 ] The term firearm is defined in s. 2 of the Criminal Code in the following manner: 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 … [ 28 ] In R v. Gordon , 2017 ONCA 436 , Justice Doherty explained that proof that a weapon was a firearm within the meaning of s. 2 can be inferred from all of the circumstances at paragraphs 29-31: 29.

On the evidence of the victims, one of the robbers pointed a handgun at them and threatened to shoot them if they attempted to escape. Fortunately, the gun was not fired during the robbery. The police did not recover the weapon. 30. The appellant submits that it was unreasonable for the trial judge to conclude that the gun was real in the sense that it was capable of firing bullets and therefore fell within the definition of a firearm in s. 2 of the Criminal Code , R.S.C., 1985, c. C-46 . The appellant submits that the evidence was equally consistent with the conclusion that the gun was an imitation firearm. 31.

There was ample evidence from which the trial judge could infer that the gun used in the robbery was a real gun capable of firing bullets. Certainly, the victims thought it was real and the robbers acted as if it was real. A trier of fact is entitled, although clearly not obligated, to take a robber at his word when, in the course of the robbery and to subdue the victims, the robber points what appears to be a gun at the victim and threatens to shoot them.

It is a fair inference that the threat is not an idle one and that the robber has the means at hand to make good on the threat. [ 29 ] On this point, see also Wills , at paragraph 50. [ 30 ] In this case, similar to the situation in Gordon , the weapon was not fired during the robbery and the police did not recover the weapon.

Nonetheless, it is possible to infer that the gun used during the robbery was a “firearm” from the facts and circumstances detailed in the evidence at trial. [ 31 ] In the case at bar the video surveillance footage (Exhibit GH#2) and photographs tendered (Exhibit DM#2) show a masked male entering the Pharmacy brandishing what looks very clearly like a shotgun. This is confirmed by the testimony of one of the witnesses that was inside the Pharmacy who testified that the masked male had a gun pointed at the ceiling.

While the appearance of the shotgun, on its own, might not be sufficient to determine beyond a reasonable doubt that the gun in question was a firearm, it is notable that the witness inside the Pharmacy also testified that the masked male shouted, “This is a real gun”. As noted by Justice Doherty, in Gordon , I am entitled to “take a robber at his word”. Given all of the above, I conclude that the gun used during the robbery was a firearm and that the penalty in s. 344(1)(a.1) applies. [ 32 ] Where the minimum sentence in s. 344(1)(a.1) applies, this sets a sentencing floor.

This floor is the appropriate punishment for the “best” offender in the “least serious circumstances” caught by the provision (see R. v. Newman , 2009 NLCA 32 , at paras. 55-57 ,

citing Justice Arbour (concurring) in Morrisey, at para. 75; and R. v. M. (B.C.), 2008 BCCA 365, at paras. 32-34). Participation as a Party [33] As I stated at paragraph 52 of Clarke it is an indifference at law whether an individual commits the crime or aids and abetsanother in the commission of a crime. The mere fact that an Offender’s participation in an armed robbery is that of lookout or getawaydriver does not warrant a lesser sentence.

The Offender is considered a party to the offence under s. 21 of the Criminal Code and has thesame moral culpability as the principal; the degree of responsibility would be considered equal. [34] In McIvor, the Manitoba Court of Appeal noted at paragraph 29 that: 29. … The jurisprudence demonstrates that sentences for getaway drivers do not differ from sentences for principals who commit therobbery merely because the driver remained outside, particularly when they have similar criminal records (see, for example, R. v. Taylor(No. 2), 1988 CarswellBC 3831 (B.C. C.A.) at paras 7-8; R. v.

Roberts, 1989 CarswellBC 1079 (B.C. C.A.) at paras 6-7; and R. v. Olson,1994 CarswellBC 981 (B.C. C.A.) at para 14). It is only when there are aggravating circumstances that apply to the principal but not thegetaway driver, such as assaultive behaviour by the principal, that the getaway driver's sentence may be lower than that of the principal(see R. v. Price (2000), (ON CA), 144 C.C.C. (3d) 343 (Ont. C.A.) at paras 54-56). [35] In R. v. Roberts, [1989] B.C.W.L.D. 1951, B.C. J. No. 1251 (C.A.), Taggart J.A. described the reason for this equal treatment ofthe principal and getaway driver at paragraph 7: 7.

These three set out to perpetrate a robbery with one of them armed with a weapon. In the circumstances, the offence could nothave been committed without the complicity of the appellant. I think it is idle to suggest that those who drive getaway cars, as theappellant did in this case, are to be treated differently than those who enter the premises, present a weapon and rob the store keeper.

So Iwould make no distinction between the appellant and his two companions simply because he was the driver of the getaway car. … [36] Thus, the degree of participation of the Offender in this case, that of getaway driver, does not automatically warrant a differentsentence than that which would be applicable to the principal who entered the Pharmacy, and does not lessen the seriousness of theoffence committed by the Offender.

Mitigating Factors [37] In terms of mitigating factors, counsel for the Offender has pointed to the fact that the Offender has four young children. [38] Certainly, the existence of family responsibilities is appropriately considered as a mitigating factor. In this case, while the PSRnotes that there is some hope that Mr. Clarke will be able to re-establish a relationship with his children, he has had little contact withthem until very recently. There was also no suggestion in the PSR that the children were financially dependent upon support offered byMr. Clarke.

Given this, I would not give this factor significant weight. Aggravating Factors [39] In terms of aggravating factors, I note that the Offender has a lengthy criminal record. He has 40 prior convictions; most ofthese are for drug related offences, impaired driving, breaking and entering, failure to comply with a condition of an undertaking orrecognizance, and possession of property obtained by crime. He has not previously been convicted of robbery. [40] A further aggravating factor in this case is the impact this offence has had on one of the witnesses, Ms. Cathy Peckford.

Asnoted above, a significant impact upon a victim is deemed to be an aggravating factor, pursuant to s. 718.2(a)(iii.1) of the Criminal Code. [41] As detailed in my reasons for conviction, Ms. Peckford was in a backroom of the Pharmacy when she became aware that therewas a robbery in progress. She exited the building through a rear door undetected by the robber. Ms. Peckford then attempted to searchfor help. She proceeded to the van driven by the Offender to ask if the driver had a cell phone or if he could call the police. She told thedriver that the Pharmacy was being robbed.

The driver replied “fuck, fuck, fuck” and started fumbling for his flip phone. She thenwitnessed the masked man run to the van with a “gun and a bag swaying from side to side”. The driver speed out of the parking lot andonto the Conception Bay Highway. [42] Ms. Peckford provided a Victim Impact Statement for the consideration of the Court on sentencing. In the statement she notedthat she has continued feelings of fear for her safety. She notes that she is more vigilant, for example, while driving.

At page 2 of theVictim Impact Statement, “When I’m driving and I meet a white van, my heartrate increases, I instantly slow down, checking to see whatthe driver looks like, wondering if it’s the same guy, same van, looking in my rearview mirror to check out the license plate number”. She adds that, “If I pull into a department store parking lot and I see a white van, I will not go inside”. Sentences Imposed in Similar Cases [43] The details of the offence in this case are similar to those in R. v. Bowman (2013), 1066 A.P.R. 202, 343 Nfld. & P.E.I.R. 202(N.L. Prov. Ct.).

In that case the drug addicted offender wearing a balaclava used a cocked and loaded rifle to commit a robbery of apharmacy. During the course of the robbery, he slapped a phone out of one of the employee’s hand. The trial judge found that therobbery had a grave impact upon the pharmacy employees present. The offender in that case was 26 years old when he committed theoffence, and had a mostly positive pre-sentence report. He pleaded guilty. A sentence of five years was imposed under s. 344(1)(a.1). [44] The facts are also similar to those in R. v.

Hunt, 2007 NLTD 204, where the 18 year old accused pleaded guilty to armedrobbery of a chicken bar, among other offences. The robbery involved the use of a shotgun – it was unclear if the gun was loaded – and

the offender had his face masked. During the robbery, two clerks were ordered to kneel on the floor. The offender had no prior convictions and suffered from cerebral palsy. The trial judge imposed the mandatory minimum in relation to the s. 344(

a) offence – the relevant provision in force at the time, which also provided a four year minimum sentence for robbery involving a firearm. [ 45 ] I also note the case of R. v. Hicks , 2007 NLCA 41 , where the accused was convicted of armed robbery of a bank and committing a robbery while his face was masked, among other offences. The accused struggled with addiction issues and had a significant criminal record. The Court of Appeal upheld a sentence of eight years under s. 344(a). SENTENCE [ 46 ] In this case, Mr. Clarke cannot be said to be the best offender in the least serious circumstances.

On this occasion, the Offender escalated his life of crime to a new level by now setting out in concert with another to commit and did commit an armed robbery. Looking at the Offender’s background and obvious involvement with drugs, it may be easy to speculate that the motive for robbing the Pharmacy was to gain access to narcotics. It is irrelevant. The Offender and his partner in this crime were apparently prepared to put lives at risk by committing the robbery using a weapon. Mr.

Clarke fully supported a masked gunman to commit the robbery, terrorizing the employees of the Pharmacy and putting at risk the lives of innocent bystanders. As a result, I believe that a sentence in excess of the minimum sentence is warranted. [ 47 ] Considering the circumstances surrounding the offence and the above outlined principles of sentencing, I determine that a fit sentence for Mr. Clarke is five year imprisonment. This sentence is proportionate to the gravity of this offence and the degree of responsibility of this Offender.

Such a sentence reflects the need for deterrence and denunciation of this form of conduct, which I see as the primary objectives in this type of case (see Hunt , at para. 36 ). The sentence must send a message to like-minded criminals that such behavior, armed robbery, will not be tolerated in our community. We have not seen the level of gun violence in our community as in other parts of the world and while any specific sentence must fit the crime and the offender, sentences generally for armed robbery must reflect our intolerance to such criminal activities and the use of guns in the commission of such offences.

Credit for Time Served [ 48 ] Having determined a fit sentence of imprisonment, I must now consider whether Mr. Clarke should receive credit for his 25 days of pre-sentence custody. The calculation of credit for pre-sentence custody is governed by s. 719(3) - (3.2) of the Criminal Code . Those provisions state: 719.

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody. Exception

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody. Reasons

(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record. [ 49 ] While s. 719 suggests that 1:1 credit for pre-sentence custody is the norm, Courts routinely grant enhanced credit. On this point, see R. v.

Safarzadeh-Markhali , 2016 SCC 14 , where the Supreme Court of Canada stated at paragraph 1 that: 1. … A credit of one day for every day of pre-sentence custody will almost never put the person on equal footing with offenders released on bail, because the time spent in pre-sentence custody does not count for purposes of parole eligibility, earned remission and statutory release … A one-for-one credit, in other words, results in longer incarceration for offenders detained in pre-sentence custody than for offenders released on bail.

On account of this discrepancy and the reality that pre-sentence custody is generally more onerous than post-sentence custody, sentencing courts have historically given “enhanced” credit for time spent in pre-sentence custody. [ 50 ] Based on the analysis in Safarzadeh-Markhali , I am satisfied that it is appropriate to grant Mr. Clarke credit on a 1.5:1 basis for his pre-sentence custody and as a result, Mr. Clarke’s sentence should be reduced by 37 days. DNA Order [ 51 ] The Crown has requested that I make a DNA order in Form 5. [ 52 ] As robbery is an offence listed within paragraph (

a) of the definition “primary designated offence” in s. 487.04, a DNA order is

mandatory, pursuant to s. 487.051(1); accordingly, a DNA order is made. Firearm Prohibition [ 53 ] Pursuant to s. 109(1) of the Criminal Code , the Offender is prohibited from possessing any firearm, ammunition or explosive substance for life.

Victim Surcharge [ 54 ] Pursuant to s. 737 of the Criminal Code , the Court must, where no fine is imposed, impose a victim surcharge of $200 for each indictable offence for which an offender is convicted, unless the Court is satisfied that the victim surcharge would cause undue hardship to the offender. [ 55 ] Undue hardship is defined in s. 737(2.2) in the following manner: undue hardship means the offender is unable to pay a victim surcharge on account of the offender’s precarious financial circumstances, including because of their unemployment, homelessness, lack of assets or significant financial obligations towards their dependants. [ 56 ] The evidence in this case is that the Offender has been unemployed and on income assistance from the Provincial Government since 2017.

Given this, I find that the imposition of a victim surcharge would cause undue hardship to the Offender and I accordingly waive it.

SUMMARY [ 57 ] In

summary, the Offender is sentenced as follows: • five years’ imprisonment; • a DNA order, pursuant to s. 487.051(1) of the Criminal Code ; and • a lifetime firearm prohibition. [ 58 ] The victim surcharge is waived. _____________________________ Raymond P. Whalen Chief Justice