R. v. Marche, 2022 NLSC 110

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Marche , 2022 NLSC 110 Date : June 30, 202 2 Docket : 201904G0149 Her Majesty The Queen v. John Joseph Marche Before: Justice George L. Murphy Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Sentencing Hearing: February 8, 2021; August 24, 2021; September 23, 2021; September 29, 2021; October 7, 2021; and March 1, 2022 Date of Oral Judgment: June 24, 2022

Summary: The Offender pled guilty to offences under section 344(1) (

b) and section 351(2) of the Criminal Code . The Court imposed a custodial sentence of two years less a day in respect of the section 344(1) (

b) offence and a custodial sentence of six months to be served concurrently in respect of the section 351(2) offence. The Court ordered that these sentences be served in the community pursuant to

section 742.1 of the Criminal Code . The Court declared that sections 742.1 (

c) and (e)(iii), which purported to preclude conditional sentences for offences falling within these provisions, violated

section 7 of the Charter and could not be justified under

section 1 of the Charter . As a result, the Court found they were of no force and effect. The Court went on to determine that a conditional sentence would not endanger the safety of the community and was consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code .

Appearances: Brenda Duffy, Q.C. Appearing on behalf of Her Majesty The Queen Courtney O. Mills Appearing on behalf of John Joseph Marche Authorities Cited: CASES CONSIDERED: R. v. Sharma, 2020 ONCA 478; R. v. Boyde, 2021 NLSC 28; R. v. D.R., 2020 NLSC 28; R. v. McCaw, 2018ONSC 3464; R. v. Ferguson, 2008 SCC 6; R. v. Chan, 2019 ONSC 783; R. v. Scarlett, 2013 ONSC 562; David Polowin Real Estate Ltd.v. Dominion of Canada General Insurance Co. (2005), (ON CA), 199 O.A.C. 266, 76 O.R. (3d) 161 (Ont. C.A.); R.v. Piapot, 2017 SKCA 69); R. v. McLeod (1983), 84 C.C.C. (3d) 336, (Y.T.C.A.); R. v. Murphy, 2022 ABPC 31; R.v.

Murray (1985), (ON CA), 24 C.C.C. (3d) 568, 7 O.A.C. 127 (Ont. C.A.); Canada (Attorney General) v. Bedford,2013 SCC 72; R. v. Stapleton (1984), 45 Nfld. & P.E.I.R. 109 (Nfld. S.C. (C.A.)); R. v. Meadus (1986), (NL CA), 60Nfld. & P.E.I.R. 64, 17 W.C.B. 104 (Nfld. S.C. (C.A.)); R. v. Evans, 2018 NLSC 90; R. v. Strickland-Murphy (2012), 324 Nfld. &P.E.I.R. 36, 103 W.C.B. (2d) 332 (NL Prov. Ct.); R. v. Ryan (2013), 338 Nfld. & P.E.I.R. 293, 107 W.C.B. (2d) 413 (NL Prov. Ct.); andR. v. Proulx, 2000 SCC 5 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982 being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11; and Constitution Act, 1982, being

Schedule B tothe Canada Act 1982 (U.K.), 1982, c. 11 REASONS FOR JUDGMENT Murphy, J.: INTRODUCTION [1] Mr. Marche entered guilty pleas based on an Agreed Statement of Facts and was subsequently convicted of the followingoffences: Count # 1 on or about the 30th day of September, A.D., 2018, at or near Mattis Point, Province of Newfoundland and Labrador, did use a firearm orimitation thereof, in robbing Bobby Bridger, Krista Dennis and Wallace Hiscock of a safe, contrary to section 344(1)(

b) of the CriminalCode; Count # 2 on or about the 30th day of September, A.D., 2018, at or near Mattis Point, Province of Newfoundland and Labrador, with intent tocommit an indictable offence, did have his face masked, contrary to section 351(2) of the Criminal Code; [2] Following the conviction of Mr. Marche, the Crown withdrew two other charges against him. [3] The Agreed Statement of Facts that was read into the record was as follows:

Shortly before 0130 hours on September 30, 2018, Bay St. George RCMP responded to a reported armed robbery that occurred near the Gut Bridge near Mattis Point, NL. The complainant was Bobby Bridger. He reported that he and his friend Krista Dennis were hiding in the woods near the Gut Bridge because some unknown males had rammed their car and then had come after them with weapons. Subsequent investigation revealed that earlier that evening, the accused John Marche and his roommate Trevor Russell were at Trevor Russell’s house in St. George’s along with Dianna Blake and Kaylene Legge.

Trevor Russell asked for Dianna Blake’s assistance in locating some cocaine for sale. Dianna Blake texted Bobby Bridger with whom she was acquainted and it was agreed that Bobby Bridger and his friend Krista Dennis would meet Russell at the Gut Bridge. During the RCMP investigation, those text messages between Blake and Bridger were subsequently located and these confirmed the arrangement and the time. Trevor Russell contacted Donnie King to ask him to come along for the ride and King agreed.

Shortly after midnight on September 30 th , 2018, Trevor Russell and John Marche departed Russell’s residence in Kaylene Legge’s car and proceeded to pick Donnie King up before the three drove to the Gut Bridge. Bobby Bridger and Krista Dennis were the first party to arrive at the Gut Bridge. They parked their vehicle facing toward the road. They saw a vehicle approaching them in the dark, the vehicle drove into their bumper and pushed their vehicle backward through the shrubs and partly onto the beach. Krista Dennis told police that she saw three individuals get out of the car that had collided with theirs.

Each of the individuals had their faces covered with a bandana. Two were carrying baseball bats while another had what appeared to be a long gun. The people with the baseball bats proceeded to smash the windows in Bridger’s car. Bridger and Dennis were ordered to get out of the vehicle and were asked “where’s the gear?” to which one of the victim’s (sic) replied that the cocaine was in the trunk of the car. The three individuals proceeded to take a small safe that was in the rear of Bridger’s car as well as the cocaine. The three then left the area.

Investigation further revealed that approximately 1 to 1.5 hours after John Marche and Trevor Russell had left Russell’s house, Marche, Russell and King arrived back at Russell’s house in St. George’s. Dianna Blake and Kaylene Legge were still at Russell’s house when the three men arrived. The men took off the clothes they were wearing and burned them in the woodstove. Kaylene Legge said that she and Blake were scared because the three men were acting “sketched out”. Russell said no one was allowed to leave the hosue (sic) that night.

Donnie King made comments referencing the robbery including that the victims had been “laid out on the ground” but that “no one got hurt”. The cocaine the three had robbed from the victims was shared by all parties present and consumed that same night. When Kaylene Legge woke up the next day she saw that the front bumper of her vehicle was damaged and hanging down. Russell would not tell her how the damage occurred. On October 1 st the RCMP interviewed Dianna Blake and Kaylene Legge. These witnesses advised the RCMP of the activities of the night before including the identity of the three male suspects.

On October 3 rd , 2018, John Marche turned himself in to the RCMP. Thereafter Marche provided a cautioned statement to the police and also took

part in a re-enactment video. Marche said he agreed to accompany Russell on the night of the robbery because Russell threatened to hurt him if he did not. Marche was cooperative with the police. [ 4 ] The Crown advised the Court that it was not alleging that a firearm or gun was in fact used but simply that one of the individuals committing the robbery had what appeared to be a gun. position of the crown and defence [ 5 ] The Crown submitted that considering all the circumstances of Mr. Marche and the offences of which he has been convicted, the appropriate sentence was a period of two years’ imprisonment on the charge of robbery under section 344(1) (

b) of the Criminal Code , R.S.C. 1985, c. C-46 and a period of six months’ imprisonment to run concurrent on the charge of having his face masked under section 351(2) of the Criminal Code . In addition, the Crown argued for a period of probation for two years with conditions and certain ancillary orders, namely a DNA Order and a Firearms Prohibition Order. The Crown submitted that denunciation and deterrence were the primary factors to be considered on sentencing but acknowledged that Mr.

Marche was a youthful offender with no prior record, that he had been cooperative with the police and had taken positive steps in the direction of rehabilitation. [ 6 ] The Defence submitted that the appropriate disposition in this case was a 2 year conditional sentence and alternatively a 12 – 15 month period of incarceration if the Court was not prepared to impose a conditional sentence. conditional sentence [ 7 ] A conditional sentence is a sentence of imprisonment that a court allows an offender to serve in the community as opposed to a prison. It is provided for in

section 742.1 of the Criminal Code which states: 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under

section 742.3, if (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be

consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (

b) the offence is not an offence punishable by a minimum term of imprisonment; (

c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life; (

d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more; (

e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that (

i) resulted in bodily harm, (ii) involved the import, export, trafficking or production of drugs, or (iii) involved the use of a weapon; and (

f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions: (

i) section 144 (prison breach), (ii)

section 264 (criminal harassment), (iii)

section 271 (sexual assault), (iv)

section 279 (kidnapping), (

v) section 279.02 (trafficking in persons — material benefit), (vi)

section 281 (abduction of person under fourteen), (vii)

section 333.1 (motor vehicle theft), (viii) paragraph 334(a) (theft over $5000), (ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house), (

x) section 349 (being unlawfully in a dwelling-house), and (xi)

section 435 (arson for fraudulent purpose). [ 8 ] A review of this provision, the facts on which the convictions were based and the punishments prescribed in the Criminal Code for the offences for which Mr. Marche was convicted reveals that sections 742.1 (

c) and (e)(iii) are of particular importance in this case. In terms of

section 742.1(c), one of the offences for which Mr. Marche has been convicted is an offence under section 344(1) (

b) of the Criminal Code . It carries a maximum period of imprisonment of life. As for

section 742.1 (e)(iii), the other offence for which Mr. Marche was convicted was under section 351(2) of the Criminal Code . It was prosecuted by indictment, the maximum term of imprisonment for the offence is 10 years and the offence involved the use of a weapon as outlined in the Agreed Statement of Facts. Therefore, these provisions, if valid, would mean that a conditional sentence would not be available to Mr. Marche. [ 9 ] Counsel for Mr. Marche argued that the two provisions which disentitle Mr. Marche from being eligible for a conditional sentence are in violation of

section 7 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 and are of no force and effect. [ 10 ] The Ontario Court of Appeal in R. v. Sharma , 2020 ONCA 478 considered the issue of whether sections 742.1 (

c) and 742.1 (e) (ii) unjustifiably infringed sections 7 and 15 of the Charter . In terms of the

section 7 analysis, the Court found that the provisions under review in that case were not arbitrary. The Court went on to find, however, that the provisions were overbroad and thereby contrary to

section 7 of the Charter because they resulted in the deprivation of liberty in a manner that was not in accordance with the principles of fundamental justice. The Court found that there was no rational connection between the purpose of these provisions and some of their effects and that the infringement of the

section 7 right was not justified under

section 1 of the Charter . [ 11 ] Shortly after Sharma was released, Burrage, J. of this Court in R. v. Boyde , 2021 NLSC 28 dealt with a similar

section 7 Charter argument relative to

section 742.1 (

c) of the Criminal Code . Ms. Boyde had been convicted of a number of offences, including break and enter into a dwelling house contrary to section 348(1) (

b) of the Criminal Code which carried a maximum term of imprisonment of life. This brought into play

section 742.1 (

c) to preclude Ms. Boyde from eligibility for a conditional sentence. Ms. Boyde argued

section 742.1 (

c) infringed

section 7 of the Charter . Burrage, J. found that

section 742.1 (

c) was overbroad because it linked seriousness (and thereby preclusion from eligibility for a conditional sentence) to the maximum penalty. In so finding he referred to Sharma and in particular paragraph 159 where Feldman, J.A. for the majority stated: [159] Since the inception of conditional sentences, this mode of punishment has been subject to two internal limits: the offence must not have attracted a mandatory minimum sentence, and the sentencing judge must have determined that a fit sentence for the offender would be less than two years in prison.

On the surface, the Safe Streets and Communities Act amendments purport to restrict the availability of conditional sentences for certain classes of offences. However, the practical impact of the legislation is to alter the sentencing landscape most directly for those offenders convicted of an offence with a high maximum penalty who nevertheless deserved penalties at the low end of the sentencing range, by denying those offenders the availability of a conditional sentence.

For more serious offenders who would ordinarily have received a prison sentence exceeding two years, the Safe Streets and Communities Act has no effect on the sentencing

landscape, as those offenders could not have received conditional sentences to begin with. [12] Burrage, J. after referring to paragraph 159 from Sharma said at paragraph 70 of Boyde: [70] The impugned provision captures a broad spectrum of offences, where there is no minimum sentence but a high maximum. Thebreath of the sentencing range means that s. 742.1(

c) operates without distinction to capture all offences, from the mundane to the mostserious. [13] Burrage, J. concluded, as did the Court in Sharma, that

section 742.1(

c) was overbroad (and thus contrary to the principle offundamental justice that a law should not be overbroad) because it impacted people who had nothing to do with the legislative purpose ofenhancing public safety and security. He pointed out that the only offenders caught by

section 742.1(

c) were those whose situation wassuch that they would normally get a sentence on the lower end of the range, namely less than two years. The reason only such personswere impacted was that anyone whose situation was such that they would normally get a sentence of two years or greater would not havebeen eligible for a conditional sentence in any event by virtue of the opening wording of

section 742.1. He went on to find that theinfringement of

section 7 could not be justified under

section 1 of the Charter and, as did the Ontario Court of Appeal in Sharma,declared

section 742.1(

c) to be of no force and effect. The practical impact of that declaration was that the

section did not operate as a barto the imposition of a conditional sentence for Ms. Boyde. [14] There was much discussion at the sentencing hearing in this matter about whether I was bound by the decision of Burrage, J.The Crown initially took the position that I was bound by the declaratory order made by Burrage, J. in Boyde and in that regard relied onthe decision of Boone, J. (as he then was) in R. v. D.R., 2020 NLSC 28.

Boone, J. found that the effect of a superior court declaration ofconstitutional invalidity was that the provision in question was of no force and effect at least in that province where the court hasjurisdiction and ceased to be a live issue for courts to litigate. He followed the reasoning of Spies, J. in R. v. McCaw, 2018 ONSC 3464interpreting the Supreme Court of Canada decision in R. v. Ferguson, 2008 SCC 6.

While horizontal precedents are generally persuasiveonly, the effect of the decisions in D.R. and McCaw is that while a judge of horizontal standing is not bound by the rationale of adecision of one of their fellow judges from the same court, the judge is bound by any declaratory order which emanates from thedecision. [15] There is contrary authority as was pointed out by Boone, J. in D.R., namely another decision from the Ontario Superior Court inR. v. Chan, 2019 ONSC 783, a decision of Boswell, J.

In that decision, Boswell, J. found that the Supreme Court of Canada in Fergusondid not deal with the question of horizontal precedent but simply the impact of the striking down of a legislative provision found to beunconstitutional. His view was that McCaw was wrongly decided and that the case of R. v. Scarlett, 2013 ONSC 562 correctly stated thelaw in Ontario regarding horizontal precedent. In Scarlett, Strathy, J. looked at section 52(1) of

Part I of the Constitution Act, 1982,being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 which provides: 52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitutionis, to the extent of the inconsistency, of no force or effect. [16] As for the impact of a finding under section 52(1) of the Constitution Act that a law is inconsistent with the Constitution,Strathy, J. said at paragraphs 35 and 36: [35] The appropriate remedy pursuant to this jurisdiction is a declaration of invalidity.

The effect of the declaration is not, of course, toactually delete the provision from the statute. Rather, it renders it of no force and effect to the extent of its inconsistency with theConstitution: see R. v. Turmel, (ON CA), [2003] O.J. No. 3877, 177 C.C.C. 533 (C.A.) at para. 5; R. v. J.P., (ON CA), [2003] O.J. No. 3876, 177 C.C.C. (3d) 522 (C.A.). [36] Where legislation is declared unconstitutional, the declaration applies not merely to the parties immediately before the court, but tothe whole world.

Lazar Sarna makes this point in The Law of Declaratory Judgments, 3rd ed. (Toronto: Thomson Canada, 2007) at p.139: [T]he Charter declaratory remedy declaring a statute invalid has effect erga omnes [toward everyone]. The invalidation of a statute ergaomnes creates a legal vacuum, which urgently calls for the legislature and the administrative agencies involved to amend enablingstatutes and alter organizational structures. [17] However, he went on later to say at paragraphs 41 – 44: [41] In both Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504 at para. 31, and R. v.

Ferguson,2008 SCC 6, [2008] 1 S.C.R. 96 at para. 65, the Supreme Court of Canada observed that a declaration of invalidity establishes theinvalidity of a legislative provision for all future cases.

In Ferguson, Chief Justice McLachlin, giving the judgment of the court, observedat para. 65 that the effect of a declaration of invalidity is not simply to make the law inapplicable to the case at hand, but to make the lawnull and void and to put the issue back to Parliament for resolution: The presence of s. 52(1) with its mandatory wording suggests an intention of the framers of the Charter that unconstitutional laws aredeprived of effect to the extent of their inconsistency, not left on the books subject to discretionary case-by-case remedies: see Osborne,per Wilson J.

In cases where the requirements for severance or reading in are met, it may be possible to remedy the inconsistencyjudicially instead of striking down the impugned legislation as a whole: Vriend; Sharpe. Where this is not possible -- as in the case of anunconstitutional mandatory minimum sentence -- the unconstitutional provision must be struck down. The ball is thrown back intoParliament’s court, to revise the law, should it choose to do so, so that it no longer produces unconstitutional effects. In either case, the

remedy is a s. 52 remedy that renders the unconstitutional provision of no force or effect to the extent of its inconsistency. To the extentthat the law is unconstitutional, it is not merely inapplicable for the purposes of the case at hand. It is null and void, and is effectivelyremoved from the statute books. [42] McLachlin C.J.C. expressly rejected the notion that, after a declaration of invalidity in one case, the courts should continue toconsider the issue on a case-by-case basis, requiring the accused to seek a constitutional exemption in the circumstances of his or herparticular case.

She noted, at paras. 72-73, that this would create uncertainty for accused persons, and for Parliament, concerning theprecise scope of the law. It would also lead to uneven and unequal application of the law. [43] The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogentreasons to depart from them: see Re Hansard Spruce Mills Ltd., (BC SC), [1954] 4 D.L.R. 590 (S.C.); R. v. NorthernElectric Co. Ltd., (ON SC), [1955] O.R. 431, [1955] 3 D.L.R. 449 (H.C.) at para. 31. Reasons to depart from adecision, referred to in Hansard Spruce Mills, include (

a) that the validity of the judgment has been affected by subsequent decisions; (b)that the judge overlooked some binding case law or a relevant statute; or (

c) that the decision was otherwise made without fullconsideration. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge issatisfied that it was plainly wrong. I am not satisfied that the decision in Smickle is plainly wrong. [44] In a constitutional case, where a statute has been declared invalid by a judge of coordinate jurisdiction, there is strong reason forjudicial restraint on the part of a subsequent judge, for the reasons identified by Chief Justice McLachlin in Ferguson.

To create ajudicial exemption, based on the facts of the particular case before me, would create uncertainty and unfairness. This is particularly sobecause an appeal of both Nur and Smickle is to be heard by a single panel of the Court of Appeal next month.

Thus, Strathy, J. seemed to be of the view that there were limited circumstances in which a judge could decide not to follow a declarationof constitutional validity made by a judge of coordinate jurisdiction. [18] For reasons which will become evident later in this decision, I need not decide in this particular case whether McCaw or Chanrepresents the correct state of the law.

However, I do not favour an approach whereby declarations of constitutional invalidity would fallinto a special category of decisions to which the normal rules applicable to horizontal precedents have no application whatsoever underany circumstances. [19] I understand the desire for consistency and certainty in the law; however, there are risks associated with blind adherence toprecedent. While in the context of a civil and not criminal case, Laskin, J.A. in David Polowin Real Estate Ltd. v. Dominion of CanadaGeneral Insurance Co. (2005), (ON CA), 199 O.A.C. 266, 76 O.R. (3d) 161 (Ont.

C.A.) discussed the debate aboutthe benefits and drawbacks of the doctrine of precedent. At paragraphs 118 – 122, he said: [118] Lord Denning once wrote, "The doctrine of precedent does not compel your Lordships to follow the wrong path until you fall overthe edge of the cliff", to which Justice Brandeis might have replied: "It is usually more important that a rule of law be settled, than that itbe settled right": see Ostime v. Australian Mutual Provident Society, [1960] A.C. 459, [1959] All E.R. 245 (H.L.), at p. 489 A.C. and DiSanto v. Pennsylvania, 273 U.S. 34, 47 S. Ct. 267 (1927), at p. 270 S.

Ct. respectively. These words, by two great jurists, capture theessence of the debate about stare decisis. [119] The values underlying the principle of stare decisis are well known: consistency, certainty, predictability and sound judicialadministration. Adherence to precedent promotes these values. The more willing a court is to abandon its own previous judgments, thegreater the prospect for confusion and uncertainty. "Consistency", wrote Lord Scarman, "is necessary to certainty -- one of the greatobjectives of law": see Farrell v. Alexander, [1976] 1 All E.R. 129, [1977] A.C. 59 (H.L.), at p. 147 All E.R.

People should be able toknow the law so that they can conduct themselves in accordance with it. [120] Adherence to precedent also enhances the legitimacy and acceptability of judge-made law, and by so doing enhances theappearance of justice. Moreover, courts could not function if established principles of law could be reconsidered in every subsequentcase.

Justice Cardozo put it this way in his brilliant lectures on The Nature of the Judicial Process (New Haven: Yale University Press,1960) at p. 149: [T]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and onecould not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him. [121] But there is, of course, a price to be paid for rigid adherence to precedent: injustices in individual cases, continued application oflegal principles long since outdated as society has changed, and uncertainty bred by judges who draw overly fine distinctions to avoidstare decisis.

[122] Most modern judges disavow both a rigid adherence to precedent and an unrestrained right to depart from their court's previousauthority. Instead, they apply stare decisis flexibly, seeking a reasonable point on the spectrum Chancellor Megarry describes so well: Much has been written and spoken on the doctrine of judicial precedent, and doubtless much more is still to come. At one extreme liesthe goal of such certainty in the law as to obviate virtually all litigation save on disputed questions of fact; and the price to be paid is thatof injustice in unforeseen cases.

At the other extreme there is the goal of perfect hand-tailored justice in every case, at the price of greatuncertainty in the law, and a flood of litigation. Each price is too great; and inevitably the greatest of judges have differed in their viewsas to the point between the extremes at which the line is to be drawn.

Those who feel most assured that they are wiser than their fathersare the most bold. [20] After examining the approach of the Supreme Court of Canada and the Ontario Court of Appeal when deciding whether tooverturn one of its own decisions, Laskin, J.A. said further at paragraph 127: [127] Instead of focusing on phrases such as "manifestly wrong", the approach I prefer is that adopted by this court in R. v. White(1996), (ON CA), 29 O.R. (3d) 577, [1996] O.J. No. 2405 (C.A.), at p. 602 O.R. It calls on the court to weigh theadvantages and disadvantages of correcting the error in a previous decision.

This approach focuses on the nature of the error, and theeffect and future impact of either correcting it or maintaining it. In doing so, this approach not only takes into account the effect andimpact on the parties and future litigants, but also on the integrity and administration of our justice system. [21] It is my view that the approach preferred by Laskin, J.A., as just outlined, is a sound approach to follow even when consideringwhether to be bound by a horizontal declaration of constitutional invalidity.

The approach suggested by Strathy, J. in Scarlett, as outlinedearlier, is consistent with the approach suggested by Laskin, J.A. Those approaches leave open the possibility in exceptionalcircumstances that a judge is not bound by a declaration of constitutional invalidity by a judge of coordinate jurisdiction.

In my view,they best reconcile the competing interests at play in the consideration of the principle of precedent and wisely provide a narrow detourto avoid following in the words of Lord Denning: “. . . the wrong path until you fall over the edge of the cliff”. [22] As I noted earlier, I need not decide whether McCaw or Chan is correct. That is because I agree with Burrage, J.’s analysis inBoyde regarding

section 742.1(

c) of the Criminal Code. For the same reasons as he did, I also declare it to be of no force and effect. [23] In this case, as noted earlier,

section 742.1(e)(iii), if valid, would also prevent Mr. Marche from being eligible for a conditionalsentence. In my view, the analysis followed by Burrage, J. in Boyde in considering the constitutional validity of

section 742.1(

c) appliesequally to a consideration of the constitutional validity of

section 742.1(e)(iii). That is because the provisions have a similar legislativehistory. After reviewing the legislative history of

section 742.1(c), Burrage, J. said at paragraph 63: [63] Based on the foregoing review the Court in Sharma concluded that Parliament’s objective was “to maintain the integrity of thejustice system by ensuring that offenders who commit serious offences receive prison sentences” (at para. 48). I agree with thisassessment. One of the means chosen to achieve this purpose was the removal of the conditional sentence option for offences prosecutedby way of indictment where the maximum penalty is 14 years, or life. [24] Thus, consideration of whether

section 742.1(e)(iii) contravenes

section 7 of the Charter must be made in light of thelegislative objective of maintaining the integrity of the justice system by ensuring that offenders who commit serious offences receiveprison sentences. [25] The

section 7 analysis involves an examination of the legislative objective compared to the means used to achieve thatobjective. It is a principle of fundamental justice that a law which deprives a person of life, liberty or security of the person must not doso in a way that is overbroad. Sharma supports the proposition that a consideration of

section 7 requires an analysis of the breadth ofoffences that would fall within the impugned provision. The purpose of this analysis is to examine whether there are individualspotentially impacted by the provision whose circumstances are such that to deprive them of the availability of a conditional sentencewould be inconsistent with the legislative objective. There must be a rational connection between the legislative objective and its effectsand, if not, the legislative provision in question is overbroad. Put another way, a provision is overbroad if it goes too far and applies tocircumstances not consistent with the legislative objective. [26] In the case of

section 742.1(e)(iii), there are three preconditions to its application. The offence must be prosecuted byindictment, it must be punishable by a maximum term of imprisonment of 10 years and the offence must have involved the use of aweapon. These three preconditions exist in terms of the offence under section 351(2) for which Mr. Marche was convicted. Thefundamental difference between

section 742.1(

c) and

section 742.1(e)(iii) is that one provision precludes the availability of a conditionalsentence where the maximum term of imprisonment is life and the other precludes it where the maximum term of imprisonment is lowerbut the offence involved the use of a weapon. [27] In Boyde, Burrage, J. in respect of his overbreadth analysis regarding

section 742.1(

c) said at paragraph 68: [68] I accept that “maximum sentences help determine the gravity of the offence and thus the appropriate sentence” (R. v. Friesen, 2020SCC 9, at para. 96). However, the problem with s. 742.1(

c) is that the seriousness of a crime cannot be determined solely by themaximum penalty, viewed in isolation (Sharma, at para. 167). Sentencing is not an abstract inquiry, divorced from the circumstances ofthe offence and the offender. Rather, sentencing is an individualized process, reflective of the principle of proportionality, that thesentence be proportional to the responsibility of the offender and gravity of the offence. This, in turn, requires a consideration of thespecific circumstances of offender and offence.

Thus, the gravity of the offence is reflected by the potential penalty imposed byParliament and the specific features of the crime (Sharma, at para. 165, quoting with approval from R. v. Hamilton (2004), (ON CA), 72 O.R. (3d) 1, 189 O.A.C. 90)). In Proulx the Court specifically rejected the suggestion that the proportionalityprinciple presumptively excludes certain offences from the conditional sentencing regime, observing that this principle requires fullconsideration of both the gravity of the offence and moral blameworthiness of the offender (Proulx, at para. 83).

[28] It is my view that his observations apply equally to

section 742.1(e)(iii). Similar to what Burrage, J. said in respect of themaximum penalty not being determinative of the seriousness of a crime, the use of a weapon is also not determinative of the seriousnessof a crime. [29] Weapon is defined in

section 2 of the Criminal Code as follows: weapon means any thing used, designed to be used or intended for use (

a) in causing death or injury to any person, or (

b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, any thingused, designed to be used or intended for use in binding or tying up a person against their will; [30] Thus, what can constitute a weapon is very broadly defined. A weapon can include a motor vehicle (R. v. Piapot, 2017 SKCA69); a dog (R. v. McLeod (1983), 84 C.C.C. (3d) 336, (Y.T.C.A.)); a towel or facecloth (R. v. Murphy, 2022 ABPC31); and a spiked wrist band (R. v.

Murray (1985), (ON CA), 24 C.C.C. (3d) 568, 7 O.A.C. 127 (Ont. C.A.)). [31] The comments of Feldman, J.A. for the majority in Sharma regarding

section 742.1(

c) and the link between the seriousness ofthe crime and the maximum penalty are also helpful in the analysis of

section 742.1(e)(iii). At paragraphs 159 – 161, Feldman, J.A. said: [159] Since the inception of conditional sentences, this mode of punishment has been subject to two internal limits: the offence must nothave attracted a mandatory minimum sentence, and the sentencing judge must have determined that a fit sentence for the offender wouldbe less than two years in prison. On the surface, the Safe Streets and Communities Act amendments purport to restrict the availability ofconditional sentences for certain classes of offences.

However, the practical impact of the legislation is to alter the sentencing landscapemost directly for those offenders convicted of an offence with a high maximum penalty who nevertheless deserved penalties at the lowend of the sentencing range, by denying those offenders the availability of a conditional sentence.

For more serious offenders who wouldordinarily have received a prison sentence exceeding two years, the Safe Streets and Communities Act has no effect on the sentencinglandscape, as those offenders could not have received conditional sentences to begin with. [160] In this respect, the impact of s. 742.1(

c) and (e)(ii) is similar in scope to the impact of the impugned legislation in Safarzadeh-Markhali. That case concerned s. 719(3.1) of the Criminal Code, which denied enhanced sentencing credit for days spent in pre-trialdetention to an offender who was refused bail because of previous convictions, and that was endorsed on the offender's record pursuantto s. 515(9.1).

Writing for a unanimous court, McLachlin C.J.C. found that the legislative purpose of s. 719(3.1) was "to enhance publicsafety and security by increasing violent and chronic offenders' access to rehabilitation programs" (emphasis omitted): at para. 47. Atpara. 53, she held that the law was overbroad because it applied to offenders in circumstances that did not further the legislative purpose: First, the provision's ambit captures people it was not intended to capture: offenders who do not pose a threat to public safety or security.Section 515(9.1) is broadly worded.

It catches any person denied bail primarily for a criminal record, without specifying or even broadlyidentifying the nature or number of offences that would warrant a s. 515(9.1) endorsement. The

section may therefore ensnare personswhose imprisonment does not advance the purpose of the law. For example, a person with two or three convictions for failing to appearin court might be subject to a s. 515(9.1) endorsement, even though he or she did not pose any real threat to public safety or security. Andeven if such a person receives greater access to rehabilitative programming and benefits from it, the consequence is not necessarily toimprove public safety and security. In short, a s. 515(9.1) endorsement is an inexact proxy for the danger that an offender poses to publicsafety and security.

The Crown says the law casts the net broadly because targeting all offenders with a criminal record is a morepractical option than attempting to identify only offenders who pose a risk to public safety and security. But practicality is no answer to acharge of overbreadth under s. 7: Bedford, at para. 113. [161]

Section 742.1(

c) and (e)(ii) are even less precisely tailored to their purpose than the legislation at issue in Safarzadeh-Markhali.As discussed, in a practical sense, the only offenders who face an altered sentencing regime by virtue of the Safe Streets andCommunities Act amendments are those whose circumstances would ordinarily militate in favour of a sentence at the lower end of thespectrum.

While there will be cases where eliminating the availability of a sentence served in the community and mandating a sentenceof imprisonment could meet Parliament's purpose of incarcerating those who commit serious crimes, there will be many other caseswhere, as in Safarzadeh-Markhali, the impugned provisions will impact people they were not intended to capture. [32] These comments are equally as applicable to the analysis of

section 742.1(e)(iii) in my view especially considering the broaddefinition of a weapon. [33] While there is no doubt that in many cases the use of a weapon is indicative of the serious nature of a crime, this is not alwaysthe case. Further, even when a weapon is used, the seriousness in many cases would be dependent on the nature of the weapon. Theproblem with

section 742.1(e)(iii) is that it links the seriousness of any crime punishable by a maximum sentence of 10 years and

prosecuted by indictment to simply whether any weapon was used. The problem with this is that the seriousness of any such crime (prosecuted by indictment and with a maximum sentence of 10 years) cannot be determined solely by whether a weapon was used. That is especially so given the broad definition of weapon. In my view, this provision goes too far and operates to capture offenders who would certainly not have been the intended targets of the legislative objective. [ 34 ] Similar to Burrage, J.’s conclusion in Boyde regarding

section 742.1(c), it is my conclusion that the offenders who will primarily be caught by

section 742.1(e)(iii) are those whose circumstances are such that they would normally warrant a sentence on the lower end of the range, namely less than two years. That is because those whose circumstances are such that they would normally warrant a sentence of greater than two years would not be eligible for a conditional sentence in any event due to the precondition that the sentence imposed must be less than two years. [ 35 ] Given all of the foregoing, I conclude that

section 742.1(e)(iii) is overbroad and thereby in violation of the

section 7 Charter rights of Mr. Marche.

section 1 of the charter [ 36 ] In terms of the interrelationship between sections 7 and 1 of the Charter , the Supreme Court of Canada in Canada (Attorney General) v. Bedford , 2013 SCC 72 said at paragraphs 124 – 129 : [124] This Court has previously identified parallels between the rules against arbitrariness, overbreadth, and gross disproportionality under s. 7 and elements of the s. 1 analysis for justification of laws that violate Charter rights. These parallels should not be allowed to obscure the crucial differences between the two sections. [125]

Section 7 and s. 1 ask different questions. The question under s. 7 is whether the law’s negative effect on life, liberty, or security of the person is in accordance with the principles of fundamental justice. With respect to the principles of arbitrariness, overbreadth, and gross disproportionality, the specific questions are whether the law’s purpose, taken at face value, is connected to its effects and whether the negative effect is grossly disproportionate to the law’s purpose.

Under s. 1, the question is different — whether the negative impact of a law on the rights of individuals is proportionate to the pressing and substantial goal of the law in furthering the public interest. The question of justification on the basis of an overarching public goal is at the heart of s. 1, but it plays no

part in the s. 7 analysis, which is concerned with the narrower question of whether the impugned law infringes individual rights. [126] As a consequence of the different questions they address, s. 7 and s. 1 work in different ways. Under s. 1, the government bears the burden of showing that a law that breaches an individual’s rights can be justified having regard to the government’s goal. Because the question is whether the broader public interest justifies the infringement of individual rights, the law’s goal must be pressing and substantial.

The “rational connection” branch of the s. 1 analysis asks whether the law was a rational means for the legislature to pursue its objective. “Minimal impairment” asks whether the legislature could have designed a law that infringes rights to a lesser extent; it considers the legislature’s reasonable alternatives. At the final stage of the s. 1 analysis, the court is required to weigh the negative impact of the law on people’s rights against the beneficial impact of the law in terms of achieving its goal for the greater public good. The impacts are judged both qualitatively and quantitatively.

Unlike individual claimants, the Crown is well placed to call the social science and expert evidence required to justify the law’s impact in terms of society as a whole. [127] By contrast, under s. 7, the claimant bears the burden of establishing that the law deprives her of life, liberty or security of the person, in a manner that is not connected to the law’s object or in a manner that is grossly disproportionate to the law’s object. The inquiry into the purpose of the law focuses on the nature of the object, not on its efficacy.

The inquiry into the impact on life, liberty or security of the person is not quantitative — for example, how many people are negatively impacted — but qualitative. An arbitrary, overbroad, or grossly disproportionate impact on one person suffices to establish a breach of s. 7. To require s. 7 claimants to establish the efficacy of the law versus its deleterious consequences on members of society as a whole, would impose the government’s s. 1 burden on claimants under s. 7.

That cannot be right. [128] In brief, although the concepts under s. 7 and s. 1 are rooted in similar concerns, they are analytically distinct. [129] It has been said that a law that violates s. 7 is unlikely to be justified under s. 1 of the Charter (Motor Vehicle Reference, at p. 518). The significance of the fundamental rights protected by s. 7 supports this observation. Nevertheless, the jurisprudence has also recognized that there may be some cases where s. 1 has a role to play (see, e.g., Malmo-Levine, at paras. 96-98).

Depending on the importance of the legislative goal and the nature of the s. 7 infringement in a particular case, the possibility that the government could establish that a s. 7 violation is justified under s. 1 of the Charter cannot be discounted. [ 37 ] Thus, the significance of the fundamental rights protected by

section 7 are such that while the possibility cannot be eliminated entirely, it would be a rare set of circumstances where a law that violates

section 7 rights would be saved by

section 1. [ 38 ] In this case, the Crown did not present evidence to supports its argument that any violation of Mr. Marche’s

section 7 rights could be justified under

section 1 of the Charter . Instead, the Crown simply argued that the objectives of the impugned provisions were pressing and substantial, that there was a rational connection between the objectives and the means chosen to achieve them and that the means chosen were minimally impairing. Finally, the Crown argued that the benefits of the provisions for the greater good outweighed

their negative impact on the rights of the individuals impacted by them. [ 39 ] I adopt the analysis of

section 1 of the Charter undertaken in Sharma and in Boyde and conclude that the infringement of the rights of Mr. Marche by

section 741.1(

c) and

section 742.1(e)(iii) cannot be justified under

section 1 of the Charter . [ 40 ] I accept that the legislative objectives of denouncing and deterring serious offences can be said to be pressing and substantial; however, the means chosen to achieve those objectives are not rationally connected because of the overbreadth of the provisions. In addition, I do not agree with the Crown argument that the means chosen are minimally impairing. The Crown did not demonstrate that there were no less drastic means of achieving the objectives.

In terms of the balancing of individual rights and the greater public good, Burrage, J. at paragraph 83 of Boyde said: [83] Finally, without adducing any evidence, the Crown makes the bald assertion that any impact on individual rights from the impugned provision is “proportional to the [public] good” that flows from its inclusion. Such an assertion without evidence cannot be sustained. I am faced with the same situation and agree fully that without evidence, such an argument by the Crown cannot be sustained. [ 41 ] My finding that both of these provisions violate

section 7 of the Charter and cannot be saved under

section 1 of the Charter does not end the matter. I must still determine whether a conditional sentence is an appropriate sentence in this case. principles of sentencing [ 42 ] The purpose and principles of sentencing are codified in

section 718 to 718.2 of the Criminal Code . The relevant sections in this case are as follows: Purpose 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 acknowledgment of the harm done to victims or to the community. . . . Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 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, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the

offender’s family, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (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, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 orreleased on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act 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; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. Circumstances of the offender [43] A Pre-Sentence Report was prepared and filed in this matter. It reveals that Mr. Marche is 26 years of age and is before theCourt as a first time offender. He was 22 when the offences were committed. Mr. Marche grew up in Stephenville Crossing, NL anddescribed his upbringing in positive terms.

Like so many individuals who find themselves in criminal court, his life took a negative turnin high school when he began associating with a negative peer group and experimenting with drugs and alcohol. He stopped attendingschool in grade 10 and around the same time his mother and her husband, who he considers his father, separated. His mother relocated toCorner Brook and Mr. Marche began to live with an individual who was involved in the incidents giving rise to the charges for whichMr. Marche was convicted.

It was when he began living with this individual that he began using and abusing heavy drugs such asprescription medications, cocaine, and crack. Mr. Marche’s life went out of control at this point and led to him committing the offencesfor which he is now being sentenced. To his credit, Mr. Marche has accepted full responsibility for the offences. He confessed to thepolice and while that has caused him to be viewed in an unfavourable light by his former friends, he does not regret doing so.

Hedescribes the offences as a turning point and he has made significant improvements in his life since that time, including not using illicitdrugs and avoiding negative peer relationships. [44] Overall, based on the Pre-Sentence Report and the submissions of counsel, it seems that Mr. Marche has dramatically turnedhis life around since these offences were committed. Aggravating circumstances [45] The factual circumstances of the offences for which Mr. Marche has been convicted are quite aggravating.

The victims, whileinvolved in illegal activity themselves which they ought to have known would put them at risk, were understandably traumatized by theevents. The offences involved violence and weapons were involved. Mitigating circumstances [46] Mr. Marche is a relatively young man with no prior criminal record. The Pre-Sentence Report indicates that these offenceswere a wake-up call to him and it certainly appears that he has turned his life around and dealt with his drug issues which was the root ofhis problems and caused him to be involved in these offences. [47] In addition, Mr.

Marche has been subject to strict bail conditions since October 10, 2018 with no known violation of theseconditions. Also of note is that Mr. Marche was cooperative with the police and accepted full responsibility for his actions. Previous decisions [48] The Court of Appeal in this Province as far back as 1984 in the case of R. v. Stapleton (1984), 45 Nfld. & P.E.I.R. 109 (Nfld.S.C. (C.A.)) stated that protection of the public and general deterrence are the primary sentencing principles to be considered insentencing for the offence of armed robbery. [49] In R. v.

Meadus (1986), (NL CA), 60 Nfld. & P.E.I.R. 64, 17 W.C.B. 104 (Nfld. S.C. (C.A.)), the Court ofAppeal made it clear that even in the case of a youthful first offender, while the principle of rehabilitation must not be overlooked,general deterrence must be the principle consideration in cases of armed robbery. [50] In R. v. Evans, 2018 NLSC 90, Burrage, J. was dealing with a 19-year-old individual who had committed five robberies ofconvenience stores over a 10 day period. He pleaded guilty to four counts of armed robbery and five counts of having his face masked inthe commission of an offence.

He was addicted to prescription drugs when he committed the offences. At the time of sentencing he was23 years of age and had turned his life around. He was a first time offender. The Crown had suggested a sentence of seven years which

Burrage, J. viewed as excessive. He was satisfied that in the intervening period between the offences being committed and sentencing,Mr. Evans had rehabilitated himself and he was satisfied that specific deterrence was therefore not a concern; however, he found thatgeneral deterrence remained a significant consideration because of the nature of the offences. Mr. Evans was sentenced to a term ofimprisonment of three years. [51] R. v. Strickland-Murphy (2012), 324 Nfld. & P.E.I.R. 36, 103 W.C.B. (2d) 332 (NL Prov. Ct.) involved a youthful femaleoffender who had no criminal record.

She robbed an elderly disabled woman at an ATM while armed with a knife and having her facedisguised. The accused suffered from significant and multiple mental disorders. The Provincial Court of Newfoundland and Labradorimposed a sentence of two years’ imprisonment in respect of the armed robbery offence. [52] The accused in R. v. Ryan (2013), 338 Nfld. & P.E.I.R. 293, 107 W.C.B. (2d) 413 (NL Prov. Ct.) pled guilty to two armedrobberies, one at a pizza store and the other at a gas bar. He also pled guilty to two breaches of Recognizance. He had a significantcriminal record which was related.

The total sentence imposed was four years and eight months’ imprisonment which included eighteenmonths for the first armed robbery and three years for the second. An appropriate sentence [53] No minimum sentence is prescribed for either of the offences for which Mr. Marche was convicted. As noted earlier, theoffence under section 344(1)(

b) carries a maximum penalty of life imprisonment. The offence under section 351(2) of the Criminal Codecarries a maximum penalty of ten years’ imprisonment. [54] By all indications, Mr. Marche has turned his life around by dealing with his drug problem. My sincere hope is that this will bea lifelong commitment to remain away from these substances which have already caused him and society significant harm. In my view,the sentencing goal of specific deterrence has already been achieved by Mr. Marche himself, no doubt with help from loved ones.

Thatleaves for consideration general deterrence and denunciation and what sentence should be imposed in order to meet those sentencingprinciples, including whether a conditional sentence can accomplish same. [55] The Supreme Court of Canada in R. v. Proulx, 2000 SCC 5 rejected the two-step approach to determining whether in a givencase a conditional sentence was appropriate. That approach involved a first step of determining the appropriate sentence according to thegeneral purpose and principles of sentencing.

The second step, which would only be necessary if the result at the first step was asentence of less than two years, would be to decide if the sentence should be served in the community as opposed to a jail. In rejectingthe approach, the Supreme Court of Canada at paragraph 52 said: 52 This two-step process does not correspond to the reality of sentencing. In practice, the determination of a term of imprisonment isnecessarily intertwined with the decision of where the offender will serve the sentence.

A judge does not impose a fixed sentence of "xmonths" in the abstract, without having in mind where that sentence will be served (see Brady, supra, at para. 86; R. v. Pierce (1997), (ON CA), 114 C.C.C. (3d) 23 (Ont. C.A.), at p. 39; R. v. Ursel (1997), 96 B.C.A.C. 241, at p. 284 (per Ryan J.A.)and pp. 291-92 (per Rowles J.A.)). Furthermore, when a conditional sentence is chosen, its duration will depend on the type ofconditions imposed.

Therefore, the duration of the sentence should not be determined separately from the determination of its venue. [56] In Proulx, the Supreme Court of Canada went on to discuss the proper

interpretation of

section 742.1 which at the time read: 742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court (

a) imposes a sentence of imprisonment of less than two years, and (

b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistentwith the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence inthe community, subject to the offender’s complying with the conditions of a conditional sentence order made under

section 742.3. [57] Similar wording is now found in the opening words of the current

section 742.1 and subsection (

a) thereof which is set forthearlier. [58] At paragraphs 59 and 60, the Court said: 59 In making this preliminary determination, the judge need only consider the fundamental purpose and principles of sentencing set outin ss. 718 to 718.2 to the extent necessary to narrow the range of sentence for the offender. The submissions of the parties, although notbinding, may prove helpful in this regard.

For example, both parties may agree that the appropriate range of sentence is a term ofimprisonment of less than two years. 60 Once that preliminary determination is made, and assuming the other statutory prerequisites are met, the judge should then proceed tothe second stage of the analysis: determining whether a conditional sentence would be consistent with the fundamental purpose andprinciples of sentencing set out in ss. 718 to 718.2. Unlike the first stage, the principles of sentencing are now consideredcomprehensively.

Further, it is at the second stage that the duration and venue of the sentence should be determined, and, if a conditionalsentence, the conditions to be imposed.

[ 59 ] In this case I earlier noted that the Crown submitted that an appropriate sentence was a period of imprisonment of two years. Defence submitted two years served conditionally but I will consider the Defence position as a submission for two years less a day served conditionally given the statutory precondition for a conditional sentence to be a sentence of less than two years. While the Crown asked for two years in its submissions, that is merely one day beyond a sentence which would qualify to be served conditionally.

This is very close to a situation where both counsel agree on a range of sentence that would meet the statutory precondition to be served conditionally. I will now move on to examine whether a conditional sentence would endanger safety of the community and whether it would be consistent with the fundamental purpose and principles of sentencing as mandated by

section 742.1 (

a) of the Criminal Code . [ 60 ] A conditional sentence should not be imposed if the safety of the community cannot be preserved. The focus is on the risk posed by the individual offender and involves an examination of the risk of reoffending and the gravity of the damage that could occur in the event the offender does reoffend. [ 61 ] In this case, I am satisfied that Mr. Marche does not pose a risk to the safety of the community. As mentioned earlier, Mr. Marche has been subject to strict bail conditions since October 10, 2018, a period of slightly over three years and eight months without any known breaches.

In addition, the Pre-Sentence Report indicates he has taken positive steps to address his drug issues which should alleviate any concern for the safety of the community. [ 62 ] I must now look at the purpose and principles of sentencing set out in

section 718 to 718.2 of the Criminal Code to ensure that a conditional sentence would be consistent with them. As I noted earlier, general deterrence and denunciation are the primary sentencing considerations for the offences of which Mr. Marche was convicted. In Proulx , the Supreme Court of Canada examined the issue of whether a conditional sentence would be consistent with the sentencing principles of denunciation and deterrence. In terms of denunciation, the Court said at paragraphs 102 – 106: 102 Denunciation is the communication of society's condemnation of the offender's conduct.

In M. (C.A.), supra, at para. 81, I wrote: In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77 : "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass".

Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances. I will discuss each point in turn. 103 First, the conditions should have a punitive aspect.

Indeed, the need for punitive conditions is the reason why a probationary sentence was rejected and a sentence of imprisonment of less than two years imposed. As stated above, conditions such as house arrest should be the norm, not the exception. This means that the offender should be confined to his or her home except when working, attending school, or fulfilling other conditions of his or her sentence, e.g. community service, meeting with the supervisor, or participating in treatment programs.

Of course, there will need to be exceptions for medical emergencies, religious observance, and the like. 104 Second, although a literal reading of s. 742.1 suggests that a conditional sentence must be of equivalent duration to the jail term that would otherwise have been imposed, I have explained earlier why such a literal

interpretation of s. 742.1 should be eschewed. Instead, the preferred approach is to have the judge reject a probationary sentence and a penitentiary term as inappropriate in the circumstances, and then consider whether a conditional sentence of less than two years would be consistent with the fundamental purpose and principles of sentencing, provided the statutory prerequisites are met. This approach does not require that there be any equivalence between the duration of the conditional sentence and the jail term that would otherwise have been imposed.

The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence: see Brady, supra, at para. 111; Ursel, supra, at pp. 284-86 and 291-92; Pierce, supra, at p. 39; J. V. Roberts, "The Hunt for the Paper Tiger: Conditional Sentencing after Brady" (1999), 42 Crim. L.Q. 38, at pp. 47-52. 105 The stigma of a conditional sentence with house arrest should not be underestimated. Living in the community under strict conditions where fellow residents are well aware of the offender's criminal misconduct can provide ample denunciation in many cases.

In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison. 106 The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender, the nature of the conditions imposed, and the community in which the sentence is to be served. As a general matter, the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be.

However, there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct.

[ 63 ] As for deterrence, the Court said at paragraph 107: 107 Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: see Wismayer, supra, at p. 36. The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generally Sentencing Reform: A Canadian Approach, supra, at pp. 136-37.

Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences. There is also the possibility of deterrence through the use of community service orders, including those in which the offender may be obliged to speak to members of the community about the evils of the particular criminal conduct in which he or she engaged, assuming the offender were amenable to such a condition. Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration.

This will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on the circumstances of the community in which the offences were committed. [ 64 ] Thus, in Proulx , the Supreme Court of Canada indicated that with appropriate conditions a conditional sentence order can be consistent with the principles of denunciation and deterrence.

It is interesting that the Supreme Court of Canada in Proulx referred to empirical evidence suggesting that the deterrent effect of incarceration was uncertain. [ 65 ] Considering the foregoing, I have concluded that in this case a conditional sentence with appropriate conditions will be consistent with the purpose and principles of sentencing set out in

section 718 to 718.2 . In this regard, I would note that while deterrence and denunciation are the primary considerations for the offender in this case, I must also consider subsections 718.2 (

d) and (

e) which mandate that courts consider alternatives to incarceration when appropriate and reasonable. I believe an alternative to incarceration, namely a conditional sentence, is appropriate and reasonable here given that Mr. Marche was a youthful first time offender who has taken significant steps to change his life and the goals of denunciation and deterrence can still be achieved through such a sentence. [ 66 ] Overall, I am satisfied in this case that a conditional sentence, albeit one with strict conditions, would be consistent with the purpose and principles of sentencing set forth in

section 718 to 718.2 and would not endanger the safety of the community. disposition Conditional sentence [ 67 ] Accordingly, I impose a period of imprisonment of two years less a day for the offence under section 344(1) (

b) of the Criminal Code . There shall be a six-month term of imprisonment to be served concurrently for the offence under section 351(2) of the Criminal Code . Both sentences are to be served in the community pursuant to

section 742.1 of the Criminal Code . The compulsory conditions provided for in

section 742.3(1) of the Criminal Code shall apply, namely: a. keep the peace and be of good behaviour; b. appear before the court when required to do so by the court; c. report to a supervisor within five working days and thereafter when required by the supervisor and in the manner directed by the supervisor; d. remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and e. notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation. [ 68 ] In addition, the following optional conditions shall be applicable as permitted by

section 742.3(2) of the Criminal Code : a. Mr. Marche shall abstain from communicating directly or indirectly with the following persons and he shall remain absolutely away from their residences and places of employment: i. Bobby Bridger; ii. Krista Dennis; iii. Diane Blake; and iv. Kaylene Legge. b. Mr. Marche shall abstain from the purchase, possession or consumption of drugs, alcohol and any other intoxicating substance, except in accordance with a medical prescription. c. Mr.

Marche shall attend and participate in any treatment or counselling program approved by the Province and recommended by his supervisor. d. Mr. Marche shall abstain from owning, possessing or carrying any weapon. e. Mr. Marche shall, when away from his residence, have in his possession at all times a copy of his Conditional Sentence Order. f. Mr. Marche is to remain within his residence, except: i. to attend for work or school, with the approval of his supervisor;

ii. to attend for medical or dental treatment for himself approved by his supervisor as to time and place; iii. to attend at a religious ceremony as approved by his supervisor; iv. to be allowed two hours per day for exercise or running errands as agreed upon and approved by his supervisor. g. Three hours will be allowed for Mr. Marche to vote in any federal, provincial or municipal election. h. Mr. Marche may also attend, with permission of his supervisor, to any unforeseen circumstances for a time, with limits to be set by his supervisor for that particular occasion or circumstance. [ 69 ] In accordance with

section 742.3(3) of the Criminal Code , a copy of the Conditional Sentence Order shall be given to Mr. Marche and a court officer and his counsel shall provide him with an explanation of the substance of sections 742.4 and 742.6, together with an explanation regarding applying under

section 742.4 for changes in the optional conditions. The court officer, together with his counsel, shall also explain that by

section 742.6 the Court shall have the option of having Mr. Marche serve any unexpired portion of the sentence in custody if he breaches any provisions in the Conditional Sentence Order. Probation Order [ 70 ] Mr. Marche will be placed on probation for one year at the conclusion of the conditional sentence, which Probation Order shall be in Form 46 of the Criminal Code . The following shall be the conditions of the supervised Probation Order for Mr.

Marche: a. keep the peace and be of good behaviour; b. appear before the Court when required to do so by the Court; c. notify the Probation Officer in advance of any change of name or address and promptly notify the Probation Officer of any change of employment or occupation; d. remain within the Province of Newfoundland and Labrador unless written permission is obtained from the Court or the Probation Officer; e. attend, participate in and co-operate with any treatment or counseling program required by the Probation Officer; f. abstain from the purchase, possession or consumption of drugs except in accordance with a medical prescription; and g. report to and be under the supervision of the Probation Officer. [ 71 ] A copy of the Probation Order shall be given to Mr.

Marche. The court officer and his counsel will provide him with an explanation of the relevant provisions of the Criminal Code and an explanation for the procedure for applying for a change in any of the conditions. The court officer and his counsel will also explain that failure to comply with the Probation Order is a separate offence for which he may be brought before the Court to be dealt with according to law. Firearms Prohibition [ 72 ] It is further ordered that, pursuant to section 109(1) and (3), a prohibition order will issue against Mr. Marche, whereby Mr.

Marche will be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and any explosive substance for a period of 10 years. DNA Order [ 73 ] Pursuant to subsection 487.04, robbery is a primary designated offence. Accordingly, in accordance with s. 487.051, I make an order authorizing the taking of the number of samples of bodily substances from Mr. Marche as is reasonably required for the purpose of forensic DNA analysis. _____________________________ George L. Murphy Justice