R. v. Ignacio Date:, 2016 BCPC 225

Citation: R. v. Ignacio Date: 20160718 2016 BCPC 225 File No: 223783-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. MICHAEL JOHN IGNACIO EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. BAGNALL Counsel for the Crown: J. Horneland Counsel for the Defendant: E. Albrecher Place of Hearing: Vancouver , B.C. Date of Hearing: July 18, 2016

Date of Judgment: July 18, 2016 [ 1 ] THE COURT: As a result of events which occurred in the late hours of June 18, 2014, and the early morning hours of June 19, 2014, Michael Ignacio was charged with two counts of robbery, two counts of having his face masked with intent to commit an indictable offence, and two counts of using an imitation firearm while committing robbery. [ 2 ] The trial commenced on September 18 and continued on September 21, 22, 23, 24 and 28, 2015. I delivered verdicts on November 13, 2015. I convicted Mr. Ignacio on all six counts.

The evidence against him was overwhelming. [ 3 ] Submissions respecting the appropriate sentence were made on April 21 and May 9, 2016. I reserved my decision respecting sentence until today, in part to await the results of a case that was progressing through the Supreme Court of British Columbia. [ 4 ] Circumstances of the events may be set out briefly. Further details are included in my reasons for judgment. [ 5 ] At around 11:15 p.m. on June 18, 2014, Ronald Kliewer was walking home in a residential area of Vancouver near the area of 17th and Heather. He was approached by two people, a man and a woman.

The man was carrying a gun. The robbers' faces were masked or covered. [ 6 ] The man was the accused. He pointed the gun at Mr. Kliewer's head and demanded his wallet and keys. The robbers took from Mr. Kliewer $80 in cash and the bag he was carrying, which contained items from the dinner he had been attending. The robbers ran away. [ 7 ] The second event occurred two hours later at 1:17 a.m. on June 19, 2014, at the Mac's Convenience Store in the 2500 block of Hemlock Street in Vancouver. This is about 15 blocks from where Mr.

Kliewer was robbed. [ 8 ] A man and a woman, wearing masks and with the man holding a gun, went into the store and stole cigarettes and transit tickets. The clerk who was employed in the store at the time, ran into the rear of the store as the robbers entered, and he was not in direct contact with them. [ 9 ] As they left the store, the man, Mr. Ignacio, pointed his gun at a man who was outside the store, one Grady Peller. Mr.

Peller then surreptitiously followed the robbers and obtained the licence plate number of the car that they entered and in which they left. [ 10 ] That licence plate number allowed the police to locate Mr. Ignacio and his girlfriend, Claudette Uy-Linsangan, at Mr. Ignacio's apartment in Burnaby. The two were arrested at 8:00 a.m. on June 19, 2014, as they left the apartment building and got into the vehicle in question. [ 11 ] An imitation handgun, a pellet gun, was located in the vehicle. Some of Mr. Kliewer's property was located in Mr. Ignacio's bedroom.

Some of the transit tickets stolen from the Mac's Store were in Mr. Ignacio's pocket. Cigarettes taken from the Mac's Store were found in the vehicle and in Mr. Ignacio's bedroom. [ 12 ] Interviewed by police, Mr. Ignacio both admitted and denied involvement in the robberies. [ 13 ] These are serious offences. The maximum sentence for robbery is life imprisonment. Each of Counts 3 and 6 carries a mandatory minimum one-year sentence which must be served consecutive to all other sentences, as required by s. 85(4) of the Code . I will return to this issue in a moment. [ 14 ] A Victim Impact Statement written by Mr.

Kliewer has been filed on sentencing. Mr. Kliewer had experienced significant loss in his life during the year prior to these events. The stress of the robbery added to the strain of an already difficult period in his life. [ 15 ] Mr. Ignacio has no criminal record. Indeed he has no involvement in criminal behaviour of any sort. He was 20 years of age when he committed the offences in question here. [ 16 ] A PreSentence report respecting Mr. Ignacio has been prepared and filed. He was born in the Philippines, the only child of his parents.

He has no relationship with his father, from whom his mother separated when he was three years old, and who apparently remains in the Philippines. Mr. Ignacio came to Canada with his mother at the age of 12. [ 17 ] At the time of the events, he was in a relationship with his original co-accused, as I have mentioned, Claudette Uy-Linsangan. She was some years older than he and was unfortunately addicted to heroin. The couple broke up in 2014 after these events. Ms. Uy-Linsangan passed away in December 2015 as a result of an overdose. [ 18 ] I have had the opportunity to observe Mr.

Ignacio over the many appearances that he has made in court. I have watched the recording of him speaking with the police during the interview that he had with them. It is important to me that Mr. Ignacio is somewhat small in stature and appears to be some years younger than his present age of 22. [ 19 ] The author of the PreSentence report noted: Overall, Michael presents as having pro-social attitudes and appears to function fairly well in the community. However he seems to be somewhat impressionable which may lead him to negative influences and peers.

As such, impulsivity and poor decision making may have also contributed to the current offences. [ 20 ] The

section of the PreSentence report entitled "Attitude and Understanding Regarding Offence" reads as follows: In regard to the current offences, Michael indicates he thought robbery was a good idea at the time, but looking back now, he

acknowledges his mistakes and accepts responsibility for his actions. He advises his girlfriend at the time needed money for heroin as she was going through withdrawals. He states it was not his idea, buthis ex-girlfriend's who told him she could die if he did not help her get money for her drugs. In regard to his BB gun, he advises he purchased it a year ago with no intentions to commit an offence. Michael reports he did not think about the consequences prior to agreeing to commit the offences, and that the first offence was decidedthe day of.

The subject shows some remorse by empathizing for the victim, and states he continues to feel sorry for his actions. He advises, he"could have hurt him but didn't want to". Overall, Michael appears to be somewhat accountable for his actions in the offence. It appears he demonstrates limited understandinginto the offence and the issues that may have contributed to the offence, as well as the impact of the offence on himself, the communityand the victim. [21] Mr. Ignacio did not testify during his trial. I am satisfied that he does indeed accept responsibility for his actions.

He has beenin the community on bail since the events over two years ago, without further issue. He is already, I am satisfied from all of myobservations of him, rehabilitated in the sense that he is unlikely to commit further criminal acts. [22] During the trial, as I indicated, I watched the recording of the interview of Mr. Ignacio by the police. It is an understatement todescribe Mr. Ignacio as unsophisticated.

He appears in that recording, even more so than he does now, young, small and, to put itbluntly, "in way over his head". [23] The Crown originally sought a sentence of two years less one day with respect to the two counts of robbery, and took theposition that sentences on the other four counts ought to be served concurrently. Ms. Horneland had apparently overlooked the fact thatsentences of one year on each of Counts 3 and 6 would, of necessity, be consecutive to the sentences on the other four counts. [24] Ms.

Horneland also sought a term of probation in her original sentencing position, and I agree that a probation order would beappropriate here. When it was pointed out to Ms. Horneland that the sentence she suggested would not be possible, she, in effect, tookthe position that a sentence of four years is appropriate here. [25] As I have said, at the end of the day, the Crown seeks a sentence of two years less one day with respect to each count ofrobbery, to be served concurrently, and six months on each count of being masked with intent to commit an indictable offence, to beserved concurrently.

The Crown says that I must sentence Mr. Ignacio to serve one year on Count 3, that is the first count laid unders. 85(2), and that that sentence must be consecutive to the sentence for Counts 1 and 2, and that I must also sentence Mr. Ignacio to serveone year on Count 6 consecutive to all other sentences. [26] As I say, the Crown submits, in effect, that a sentence of four years is appropriate for this very young, first time offender, whois likely never going to reoffend. [27] It is my view, that a sentence of four years would not only not contribute to Mr.

Ignacio's rehabilitation, it would very likely beextremely counterproductive in that regard. It would be an unfit sentence as compared to sentences for like offences and offenders. [28]

Section 718.2(

b) sets out one of the principles of sentencing. It reads: . . . a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; [29] I have read and considered the cases referred to by the Crown in support of her position on sentencing. None of those cases issimilar to the case at bar. [30] Included in one of the cases, R. v. Gill, 2006 BCCA 127, is a chart setting out 18 additional cases. One of those cases is similarto the case at bar, R. v. Greene, [1993] B.C.J.

No. 3068, in which the accused was sentenced to incarceration for 18 months. [31] I have also read and considered the cases referred to by the defence. I note especially the case of R. v. Chand, 2015 BCSC484. The circumstances are somewhat different, but the offenders were similar. One of the offenders in that case was sentenced to serve90 days intermittent, and the court suspended the passing of sentence with respect to the other offender.

I also note the case of R. v.Tattersall, 2016 BCPC 81, referred to by the defence. [32] I am going to hand to the Registrar the indices from the two case books that have been provided to me and those will be filed onsentencing. [33] The stark question here is whether the law actually requires that I sentence Mr. Ignacio to one year on each of Counts 3 and 6,those sentences to be consecutive to all other sentences, and most importantly, consecutive to one another. [34] It appears on a review of the law in British Columbia that such a sentence is required. R. v.

Goforth (1986), (BC CA), 24 C.C.C. (3d) 573, a decision of the B.C. Court of Appeal which is put forward by the Crown stands for this proposition. Inthat case, our Court of Appeal disagreed with the view of the Alberta Court of Appeal in R. v. Jensen (1982), 1982 ABCA 330 ,3 C.C.C. (3d) 46. Jensen was ultimately overruled by the Supreme Court of Canada in R. v. Boucher (1986), (SCC),1 S.C.R. 750. [35] In the much more recent case of R. v. Stauffer, 2007 BCCA 7, the court addressed the relationship between what is oftenreferred to as the totality principle and the operation of s. 85(4) of the Criminal Code.

[36] In my view, the court in that case (and in the other similar cases) accepted, rather than decided, that in the circumstances thatpertained in that case, the sentence was bound to include four sentences of a minimum three years each, to be served consecutively tosentences for the underlying offences, consecutively to any other sentence the offender was serving, and consecutively to each other. [37] The court said this in R. v.

Stauffer: 32 While Goforth interpreted how s. 85(4) is to operate, and M. (C.A.) dealt with proportionality, there is a paucity of jurisprudenceexploring the relationship between totality and mandatory minimum sentences. By removing discretion from trial judges and prescribingminimum mandatory consecutive sentences, it is clear that s. 85(4) represents Parliament's strong condemnation of the use of a firearm orimitation firearm to commit an indictable offence. On the other hand, s. 718(

c) expresses the will of Parliament that "the combinedsentence should not be unduly long or harsh." 33 While these provisions represent differing objectives, they are not necessarily in conflict. What is instead required is that courtsstrike a balance between the goal of controlling firearms-related crime through mandatory sentences and the goal of ensuring thatconsecutive sentences are not unduly long or harsh. 34 The leading case that explores how minimum mandatory sentences interact with the other principles of sentencing is R. v. Wust(2000), 2000 SCC 18 , 143 C.C.C. (3d) 129 (S.C.C.).

In that case, the issue was whether a trial judge retained the discretion tocredit pre-sentence custody under s. 719(3) of the Code when doing so would reduce the sentence imposed to less than the minimum mandatory four year sentence required by s. 344(a)1 of the Code (robbery with a firearm). Arbour J. held (for the Court) that minimummandatory sentences should not vitiate the other substantive principles of sentencing and emphasized, at para. 23, that minimummandatory sentences must be understood in the full context of the sentencing system: o In accordance with the umbrella principle of statutory

interpretation expressed by this Court in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 at paras. 20 - 23, mandatory minimum sentences must be understood in the full context of thesentencing scheme, including the management of sentences provided for in the Corrections and Conditional Release Act, S.C. 1992, c.20. o ... In deciding on the appropriate sentence the court is directed by

Part XXII of the Code to consider various purposes and principlesof sentencing, such as denunciation, general and specific deterrence, public safety, rehabilitation, restoration, proportionality, disparity,totality and restraint, and to take into account both aggravating and mitigating factors. The case law provides additional guidelines, oftenin illustrating what an appropriate range of sentence might be in the circumstances of a particular case. [Emphasis added.] 35 In a similar vein, Arbour J. in R. v.

Morrisey, [2000] 2 S.C.R. 90, 2000 SCC 39, at para. 75, further emphasized the relevance ofother sentencing principles when applying mandatory minimum sentences: o To the extent possible, mandatory minimum sentences must be read consistently with the general principles of sentencing expressed,in particular, in ss. 718, 718.1 and 718.2 of the Criminal Code: Wust (S.C.C.), supra, at para. 22.

By fixing a minimum sentence,particularly when the minimum is still just a fraction of the maximum penalty applicable to the offence, Parliament has not repudiatedcompletely the principle of proportionality and the requirement, expressed in s. 718.2(b), that a sentence should be similar to sentencesimposed on similar offenders for similar offences committed in similar circumstances. ... Arbour J. also cited with approval, at para. 34, the approach to statutory

interpretation taken by Rosenberg J.A. in R. v. McDonald(1998), (ON CA), 127 C.C.C. (3d) 57 (Ont. C.A.) and stated: o In his judgment Rosenberg J.A. employed several well-established rules of statutory

interpretation to conclude as he did, at p. 69, thats. 719(3) provides sentencing judges with a "substantive power to count pre-sentence custody in fixing the length of sentence." I agreewith this analysis. In particular, I approve of his reference to the principle that provisions in penal statutes, when ambiguous, should beinterpreted in a manner favourable to the accused [citation omitted]; to the need to interpret legislation so as to avoid conflict between itsinternal provisions, to avoid absurd results by searching for internal coherence and consistency in the statute; and finally, where aprovision is capable of more than one

interpretation, to choose the

interpretation which is consistent with the Charter [citation omitted]. 36 In my view, the principles enunciated by Arbour J. in Wust and Morrisey are equally applicable to the case at bar: also see R. v.Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61; R. v. Fice, 2005 SCC 32 , [2005] 1 S.C.R. 742. Proportionality is consideredto be the fundamental governing principle of sentencing. We cannot, therefore, assume that Parliament intended to abridge thislongstanding principle without clear and explicit language to that effect. Likewise, the Code ought to be interpreted so as to avoidconflict between its internal provisions.

Thus, like the minimum sentence in s. 344(a), the application of s. 85 must be understood inrelation to the whole sentencing system, including the principle of proportionality and totality as codified in ss. 718.1 and 718.2(

c) of theCode. 37 The Code should also be interpreted to avoid anomalous or absurd results. It is worth noting that had Mr. Stauffer been chargedwith an offence under s. 344(a), robbery with a firearm, s. 85(4) would have no application. This is because s. 85(1) specifically excludess. 344(

a) from its operation. Had Mr. Stauffer been convicted of seven counts of robbery with a firearm, as opposed to seven counts ofrobbery with an imitation firearm, he would have been subject, under s. 344(a), to a minimum mandatory sentence of four years on eachcount of robbery. Ironically, unlike s. 85(4), nothing in s. 344(

a) requires that sentences for multiple counts be served consecutively. Yet,as noted earlier, for four counts of using an imitation firearm in committing robbery, Mr. Stauffer faces a minimum mandatory sentenceof 12 years. It seems to me that to interpret s. 85(4) as preventing the operation of the principle of totality when considering sentencingfor the underlying offences would be only to compound this anomaly. 38 There is also support for this

interpretation in other courts in Canada. The totality principle has been applied, without challenge, in anumber of other cases involving mandatory sentences for the use of a firearm: see R. v. Langevin (1979), (ON CA),47 C.C.C. (2d) 138 (Ont. C.A.); R. v. Cheetham (1980), (ON CA), 53 C.C.C. (2d) 109 (Ont. C.A.); R. v. MacLean,

supra. [ 38 ] At paragraph 45 of the Stauffer decision, the court said this: To summarize, the application of s. 85 involves a balancing between mandatory sentences and the other objects of sentencing, including the totality principle. In practice, this requires a sentencing judge to correctly apply the law by finding the appropriate sentence in respect of each offence in isolation before going on to ensure that the whole or aggregate sentence is "just and appropriate" in all of the circumstances.

This does not, of course, mean that a trial judge can simply pay lip service to mandatory sentences and thereby frustrate the intention of Parliament. [ 39 ] The appropriate sentence for Mr.

Ignacio on all counts, given his youth, his lack of criminal record and lack of any other criminal involvement, the remorse he has expressed through counsel, his personality and his personal circumstances, and the reason that he committed these offences, absent the mandatory minimum sentences, is a global sentence of 12 months and a two-year term of probation. [ 40 ] I cannot accept that Parliament intended that instead of this appropriate sentence, I am required by s. 85(4) to incarcerate Mr.

Ignacio for a minimum of two years, a sentence which would take him, of necessity, to the penitentiary. [ 41 ] The robberies he committed were in effect one continuing robbery and one continuing use of an imitation, and I stress imitation, firearm while committing those robberies.

The Crown has recognized this reality in submitting that the sentences on the two counts of robbery ought to be served concurrently to one another, and that the sentences on the two counts of being masked with intent to commit an indictable offence ought to be concurrent with the sentences on the two counts of robbery and, of course, as I have indicated, the Crown originally submitted that the sentences with respect to Counts 3 and 6 ought to be concurrent with the other sentences as well. [ 42 ] None of the cases referred to by either counsel addresses the circumstances of an offender like Mr. Ignacio. Mr.

Ignacio, because of his previous and ongoing good conduct, does not even have any presentence time in custody to be credited against his ultimate sentence, time that he would have spent in a remand facility and which would likely have allowed a final sentence within the range of Provincial time. [ 43 ] None of the cases that counsel have referred to nor the cases that I have located have considered a situation where the totality principle is offended by the imposition of the mandatory minimum sentences consecutively to one another before there is even a consideration of the appropriate sentence for the underlying offences, as I view the issue that arises in the case at bar.

The cases that were referred to include R. v. Goforth , R. v. Jensen , R. v. Stauffer , R. v. Burleigh , 2015 BCCA 245 , and R. v. Stevenson , 2015 BCPC 256 . [ 44 ] In each of these cases, faced with the requirement for consecutive mandatory minimum sentences, the courts find flexibility in the use of what is commonly referred to as "dead time" and in sometimes drastic reductions of the sentences handed down with respect to the underlying offences.

But, as I say, none of the cases referred to consider a situation where the mandatory minimum sentences alone require a sentence that is unfit for the offences and for the offender in question, where the common-law

interpretation of s. 85(4) is in a virtual collision with the totality principle. It is not difficult to imagine circumstances where the results of the application of R. v. Goforth and some poor prosecutorial discretion might result in an even less fit sentence for a youthful first-time offender. [ 45 ] As I have referred to obliquely, s. 718.2(

c) actually codifies the totality principle. It reads as follows: where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. [ 46 ] In my view, as I have indicated, a sentence of two years for this offender and for these offences would, on its own, be unduly long and harsh. Therefore, I have decided that the following is the appropriate sentence. [ 47 ] Mr. Ignacio, would you stand up please so that I can formally pass sentence. [ 48 ] With respect to Count 1, you will serve six months in custody. With respect to Count 2, you will serve two months in custody.

That sentence will be served concurrently with the sentence on Count 1. [ 49 ] With respect to Count 4, you will serve six months in custody. With respect to Count 5, you will serve two months in custody. Those two sentences will be concurrent to the sentences in Counts 1 and 2. [ 50 ] With respect to Counts 3 and 6, you will serve one year on each count as required by the Code . Those two sentences will be served concurrently but consecutive to the sentences on the other four counts. [ 51 ] On each count on the Information, Mr. Ignacio will also be placed on probation for a period of two years.

The statutory conditions will apply, and I will add the following. [ 52 ] Within 72 hours of his release from custody, he will report to the probation office at 275 East Cordova Street, Vancouver, B.C., and thereafter as directed. [ 53 ] He will take counselling as directed by his probation officer. [ 54 ] He will possess no weapons. [ 55 ] He will have no contact, directly or indirectly, with Ronald Kliewer nor with Grady Peller. [ 56 ] He will possess no weapons. [ 57 ] The order will be prepared in writing. It will be read and explained to Mr. Ignacio. A copy will be given to him.

I delegate to the Clerk of the Court the other responsibilities I have under the Criminal Code .

[ 58 ] I will make the order requested with respect to Mr. Ignacio's DNA and that will be attended to while he is in custody. The mandatory order under s. 109 will be made, and it will have ten years as its duration. [ 59 ] The Crown has asked for forfeiture of the imitation weapon. I will make that order. [ 60 ] In addition, under s. 738, there will be an order that Mr. Ignacio will pay to the Clerk of the Court $180 to be paid to Ronald Kliewer. [ 61 ] The timing with respect to these offences allows me to waive the victim fine surcharge. Thank you. [REASONS FOR SENTENCE CONCLUDED]