R. v. Link, 2012 MBPC 25

CITATION: R. v. Link , 2012 MBPC 25 Date: 2012 02 23 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Monique Cam ) for the Crown ) and ) ) ) Bryna Alice Link ) Michael P. Cook ) for the Accused ) ) ) ) Reasons for Decision delivered: ) February 23, 2012 M. J. SMITH, P.J. [ 1 ] Bryna Alice Link is before me for sentencing on a number of offences for which she entered pleas of guilty. The most serious is robbery, committed June 8, 2010, 83 days after her 18 th birthday. She has no prior criminal record, youth or adult.

She is of Aboriginal background. [ 2 ] The Crown seeks a penitentiary sentence on the robbery charge and a non-custodial disposition on the other less serious charges – three breaches of her recognizance and a theft under. If a sentence of less than two years is appropriate, the Crown asserts, that sentence must be served in jail, as this was “a serious personal injury offence” (SPIO) for which a conditional sentence is unavailable. [ 3 ] The defence seeks a community based disposition, by way of suspended sentence or conditional sentence.

The defence emphasizes the significant progress Ms Link has made in addressing her addiction issues, in which she was enmeshed at the time of the offence, and the very minor role she played in the offence. [ 4 ] The Court has the benefit of a comprehensive pre-sentence report (PSR) together with one addendum and a current update, prepared by Restorative Resolutions. The final report states that she is an appropriate candidate for a community based disposition. [ 5 ] Obviously, the most significant sentence being considered is the robbery offence. These reasons will primarily address that offence.

CIRCUMSTANCES OF THE ROBBERY OFFENCE [ 6 ] In the early morning hours of June 8, 2010, Ms Link, Daniel Foui, Thomas Cameron, Brady Briggs, and A.H. [a youth] attended by car to the 7-Eleven Store, located at 162 St. Mary’s Road, in Winnipeg. In the car Foui (who had a prior adult record at the time) announced that they were going to do a “jack-up” of the convenience store. Ms Link was thus aware of Foui’s plan to rob the store when she went in with him, while the others remained in the car. They selected some energy drinks and chocolate bars and Foui proceeded to the cashiers in order to pay for the merchandise.

He produced a pre-paid Visa card, handing it to the cashier and store

clerk, Ms Crystal Phillips. It was declined. [ 7 ] At this time, Foui produced a black replica handgun, pointing it directly at Ms Phillips at eye-level. Foui then demanded Canadian Classic cigarettes, stating “Just give me the smokes. Give me the smokes.” He then pointed the weapon at another employee, Mr.

Jordan Roy, telling him “Keep your hands where I can see them.” [ 8 ] The fact that Foui was in possession of the replica gun or was intending to use it in the “jack-up” was, the Crown accepts, completely unknown to Ms Link until he produced it. [ 9 ] Store clerk Ms Phillips then handed Foui the cartons of cigarettes in response to his demands. While this was happening Ms Link was standing near the exit door about 15 feet away. At one point, her arms were crossed as she was watching the confrontation. Foui then yelled “Bag, bag, bag.” Ms Link then came towards Foui.

She pulled a black bag out of her purse and both she and Foui placed the cigarette cartons and the food items inside the bag. They ran out to the vehicle where the others were waiting and made good their escape. [ 10 ] The total value of the cigarette cartons – there were four taken in total – and the food was $401.13. Of the 40 packages of stolen cigarettes Ms Link got seven. She sold two packs for $5.00 each, gave one to co-accused, Thomas Cameron, kept one pack and gave three other packs away to people in her apartment. [ 11 ] The Crown accepts that the gun used by Foui was not a real gun.

This fact was not known to the store clerks. [ 12 ] Police indicated that the complainants in the robbery matter, Crystal Phillips and Jordan Roy, not surprisingly, were shaken up by the experience. The Crown Attorney was able to contact Jordan Roy, but he was not interested in providing a victim impact statement and provided no further information. [ 13 ] The Crown was unable to contact Crystal Phillips, however the author of the PSR was able to reach her. When asked about the offence, she first responded by saying “[w]hich one? I have been robbed too many times”.

She told the Probation Officer that she had been robbed approximately four or five times. [ 14 ] However, Ms Phillips specifically recalled this particular offence as it was the only time she has had a gun pointed at her.

The offence itself has clearly affected her; she no longer allows her children to play with guns and she also worries “what if the night had went bad (sic)?” [ 15 ] When discussing the offence, it is interesting to note her description of Ms Link and her role: according to this victim she was an “accomplice maybe?” Ms Phillips states that Ms Link “...just stood there, confused as if to say, what do I do next, she seemed flustered, not really involved.” [ 16 ] Although a victim’s recommendation for sentence is not to influence the court in determining sentence, it is interesting that Ms Phillips offered this comment to the author of the PSR: ...robbing the store was not a good thing, [but] I do not believe that Bryna needs to go to jail. [ 17 ] Those sentiments seem quite consistent with the rather minimal role she described Ms Link to have played in the robbery.

I should note that the robbery was captured on surveillance video, and the Crown agreed the offence took a minute at most. [ 18 ] When Foui was subsequently arrested on June 15, 2010, he provided a video statement implicating all of the co-accused. [ 19 ] Ms Link was arrested on June 21, 2010 in the company of Thomas Cameron. [ 20 ] After her arrest, she was interviewed on video. She was cooperative with the police and admitted to her involvement and implicated her co-accused. During her video she stated “I know how it feels to have a gun [held] to you.

I know it was a horrible feeling.” [ 21 ] The Probation Officer interviewed her in detail about the offence to assess her attitude to criminality. She explained the circumstances of the offence as follows: On that day I was using meth and marijuana, before the robbery and after. During the robbery I was frightened and my brain was not able to register the reality of what was happening. I accept my responsibility in taking

part in the robbery regardless of drugs, fear and the fact I didn’t say NO and that makes me a part of it. [ 22 ] More will be said about that below, in looking at the circumstances of the offender. Her position that she was “frightened” and unable to register the reality of what was happening appears consistent with the description of her role by the victim, quoted above at para. 15. CIRCUMSTANCES OF THE OTHER OFFENCES [ 23 ] Prior to her arrest on robbery, Ms Link was involved in a theft from Superstore of some clothing and food items on June 11, 2010, three days after the robbery.

She was again in the company of Foui and Thomas Cameron, as well as Jessie Durham. She was co- operative and the $21.00 worth of stolen goods was recovered; Foui fled the scene at the time. As her involvement in the June 8, 2010 robbery was unknown to the police at that time, she was released on a promise to appear. Ms Links’s explanation for that offence provided to the author of the PSR is as follows:

Prior to June 11 th , 2010 I was using drugs on a daily basis. I wanted to feel nothing I had nowhere to live and was sleeping on the floor of a friends place. I was having little or no contact with my family as I couldn’t explain to them what was happening to me. Four of us went to Superstore to shoplift some food because we hadn’t eaten in two days. We were just going to take energy drinks, bologna and bread. We were stopped by loss prevention officers just as we were leaving the store.

Before and during the theft at the store I felt desperate and helpless. [ 24 ] On August 1, 2010 she failed to comply with a recognizance in that she breached her curfew. Upon her release on the robbery and theft offences, she was residing back with her mother and was to be bound by a curfew of 11:00 p.m. to 7:00 a.m. On the night in question, her mother was out of town. Contrary to her mother’s rules she had friends over. A neighbour friend of her mother’s stopped by to check on her and discovered what was happening.

The neighbour called her on it, the friends left and there was an argument between Ms Link and the neighbour. The neighbour refused to let Ms Link use the phone, suspecting she was going to make plans to hook up with the friends she should not be seeing. Ms Link said she wanted to call her Aunt Doris and went across the street to use a payphone. The neighbour would not let Ms Link back into the apartment and called police, worried that Ms Link would come back with all the friends.

The police arrived and Ms Link was not there, violating her curfew. [ 25 ] Ms Link attended court as she was required to do so on August 10, 2010 at which time the warrant was executed and she was released the next day. [ 26 ] On November 15, 2010 Ms Link entered guilty pleas to the charges of robbery, theft and breach of recognizance and a PSR was ordered. [ 27 ] The matter was adjourned to January 5, 2011 for disposition. She did not attend and when the matter was adjourned to January 26, 2011, she again missed court, resulting in the other charge of breach of recognizance by failing to attend court.

She subsequently attended on February 17, 2011 and at that time the matter was adjourned for the completion of the PSR on the guilty pleas. The Crown agreed not to have her taken into custody on the new breach charge. [ 28 ] On May 6, 2011, the police attended to the apartment at Suite 509 – 2440 Portage Avenue where Ms Link was supposed to be residing according to her bail conditions. The current tenants indicated that Ms. Link did not live at that address. This offence occurred six days before Ms Link checked herself in to a detoxification facility, as will be detailed below.

CIRCUMSTANCES OF THE OFFENDER [ 29 ] Ms Link was born March 20, 1992 and turned 18 less than three months before the robbery offence. She comes before the court with no prior record. [ 30 ] Ms Link was raised by her single mother, Debbie Link, with support from a large and loving extended family. Her father has never been involved in her life. [ 31 ] She was doing quite well until her adolescence, when, according to her mother she was vulnerable, and suffering from low self esteem. She made some poor choices and got involved with drugs and the wrong crowd and developed a serious drug addiction.

Her mother and family were trying to help her address these issues and did everything they could. These efforts even extended to sending her to France for part of her high school year when she expressed interest in becoming a teacher. [ 32 ] Despite these efforts, Ms Link remained tied to a destructive set of friends and their drug lifestyle.

There was considerable conflict between young Bryna and her mother over her mother’s attempts to control her daughter’s behaviour and get her away from the wrong crowd. [ 33 ] Ms Link told the author of the PSR that when she turned 18 in March of 2010 she immediately moved away from home, stopped going to school and followed her drug involved friends surviving without a place to stay. She was estranged from her mother. [ 34 ] At the time of the robbery, and for some months after, she was still enmeshed with drugs, drug companions, and the drug lifestyle. [ 35 ] There is a significant family history of addiction.

Her mother Debbie Link had a serious addiction resulting in the need for residential treatment when Bryna was six. While her mother was in treatment she stayed with her aunt and both she and her mother remained with the aunt for some time. Debbie Link has been in recovery for 13 years. No alcohol is permitted at family functions. [ 36 ] Her uncle Louis Link loves his niece and has been an integral part of her life. He too has struggled with addictions and has been sober for five years.

It seems clear from his description and her mother’s that Bryna was a sweet girl who led a protected and sheltered life growing up.

He told the Probation Officer that Bryna is smart and likable, but at the age of 16 started to spend time with a bad crowd. [ 37 ] From Ms Link’s perspective, things went downhill from around the age of 14, when she “lost interest in everything in her life.” Although she began involvement with drugs and alcohol at 13, by the age of 14, she was using drugs every second day; and by 15 she was drinking daily and was using any available drugs. [ 38 ] By the time she discussed matters with the probation officer in March of 2011, she admitted she had been using crystal methamphetamine for a long time.

The devastating, life-threatening and highly addicting consequences of that drug are alarming and well known to the courts. When she met with the Probation Officer in the spring of 2011, she acknowledged that “[m]y drug and alcohol use is ruining my life.” Yet even then, and despite having pleaded guilty to the robbery offence, she was unable to pull herself away from meth and had resumed using it as of March 31, 2011, after having been clean for a four week period earlier that year.

She was however, on a waiting list to attend a residential treatment program at River House. [ 39 ] In the initial PSR, dated March 31, 2011 the Probation Officer described Ms Link as unable to cope with her addiction and in a pre-contemplative state concerning it. He found her to be a high risk to re-offend at that time. The significant criminogenic risk factors

were identified: There are significant criminogenic risk factors for this individual including antisocial patterns of behaviour, alcohol and drugs, leisure/recreation, family/marital situation and employment/education. [ 40 ] The author of the PSR submitted an Addendum Report (AR), dated October 31, 2011, indicating that Ms Link had made significant changes in her life since the earlier report. [ 41 ] That AR indicates that Ms Link attended to a detoxification facility on May 12, 2011. On May 17, 2011 she transferred to River House where she completed a residential treatment program on June 3, 2011.

Immediately following that she chose to reside at Destiny House which is a sober living environment with strict rules. As of the date of that AR, she was residing in Destiny House, was attending AA seven times a week and had reached the point where she was chairing those meetings. The Probation Officer concluded that she was then in the action/maintenance stage of change; she had been sober for over five months when the AR was written. [ 42 ] The author of the PSR also spoke with Betty Scharian, an elder that has known both Ms Link and her mother for a number of years and to whom they are related traditionally.

The elder confirmed that Ms Link has attended many sweat lodges and Sun Dances with her mother and others in the traditional circle to which they belong. Although her Aboriginal background was not explored in detail in the PSR, it is clear that she has been both involved and interested in her culture. This is a positive feature for Ms Link. [ 43 ] In addition, according to the AR, she worked full time at Ekota Lodge, a medical receiving home for First Nations people in Winnipeg for medical appointments, throughout the summer months of 2011.

As well, the author reported that Ms Link has been attending Red River College Adult Learning Centre, and is anticipated to graduate with a high school diploma in June 2012. She was working part-time while attending school, and reported aspirations to be a nurse specializing in addiction recovery working with youth.

Counsel advised that she is a participant in Red River College’s Access Program, a program designed to support Aboriginal students in achieving their career goals. (For reasons not known to me, a Gladue component was not requested to be included in the PSR.) [ 44 ] The AR also noted that she had begun repairing her relationship with her mother in joint counselling sessions. [ 45 ] Because of these changes the Probation Officer reassessed Ms Link as a medium risk to reoffend.

The significant remaining criminogenic risk factors were identified as “alcohol and drugs, and leisure/recreation”, a much diminished list compared with those identified in March of 2011 and referred to above at para. 39. [ 46 ] Obviously, there has been a very significant turnaround in Ms Link’s life. Defence counsel filed a number of impressive letters of support, both from family members and others who have documented her progress. The therapist working with her stated she had been responding well to therapeutic interventions, and would have access to ongoing therapy through him.

He stated “I have great confidence she is adjusting well and is learning skills that will help her grow and adapt well through life.” [ 47 ] The staff at Destiny House provided a very positive reference letter. They also attended the sentencing hearing and reported that Ms Link was continuing to do well in their sober living arrangements.

The letter noted that random urine tests are a part of their program and all of Ms Link’s tests had been clean. [ 48 ] It is clear that Ms Link chose to live in an environment that was highly specialized, structured and supportive, and that in that setting she addressed her ongoing criminogenic risk factors and achieved significant success. She remained there for seven and one-half months. [ 49 ] A February 2012 update provided by her Probation Officer indicates that on January 14, 2012 she moved out of Destiny House and resumed living with her mother.

The Probation Officer noted: ...Ms Link contacted Restorative Resolutions to indicate that she wanted to increase her workload at school, however the demands of Destiny House and the commitment one has to make with respect to AA attendance was prohibiting her from increasing her school workload. Ms Link continues to attend school and is able to commit to 5 AA meetings a week as opposed to 7 meetings that she was attending when residing at Destiny House.

Ms Link is also looking at other living arrangements, specifically Ester House which is also a sober living environment to help her succeed in the community, however there is a waiting list. [ 50 ] As of February 21, 2012, the Probation Officer indicated Ms Link continues to do well: Ms Link is doing well in the community, she is attending school, AA, she is maintaining sobriety and continues to work at Ekota Lodge.

She also has the support of her mother as well as other friends and family. [ 51 ] In her mother and uncle, Ms Link has significant family support and good role models for her ongoing battle with addictions. [ 52 ] In terms of her attitude towards the robbery offence Ms Link expressed her feelings of remorse and shame to the Probation Officer: I feel a great deal of shame that I was a part of this life. I am shocked at how a simple stop at 7eleven has turned into a life changing event. I lost control over the events and I lost control over myself. Was it the drugs or was it fear or both?

I need to look at these things carefully. I regret what the clerks went through that night and wish I could take it back. I know that their families must also be afraid now every time they go into work. They were trying to make a living and don’t deserve to hae fear from drugged up kids putting their lives in jeopardy. [ 53 ] Speaking of her attitude to the subsequent theft from Superstore on June 11, 2010 she stated: I am deeply ashamed that I was in such desperate need for food that I was willing to steal for it.

I was raised never wanting for anything and now here I was stealing to survive and sleeping wherever I could. My poor choices and my addiction put other people in jeopardy

and I cannot forgive myself for being a part of this. [54] The Probation Officer concluded that Ms Link is able to recognize the harm she caused and is willing to repair that harm,whatever it takes. [55] At the time of sentencing, she again expressed her remorse and took responsibility for her offending behaviour, stating: . . . there is no excuse for my behaviour and I want to convey to the court my sincerest apologies for the impact my actions have had onthe victims of these crimes that I am charged with.

I realize that robbery and theft are serious crimes and I was wrong in participating inthis criminal behaviour. I understand and admit that my past drug use and lifestyle led me to make choices that not only hurt myself, butit also put innocent people at risk. I also put my family through a lot of pain. They don’t deserve any of it because throughout my lifethey have been nothing but supportive of me. I am grateful that I continue to receive their support because it is with this support my lifehas turned around.

I am living – I am again living a life that is clean and sober and that I am now making choices that will lead me to bea productive person in society. . . . I want to say that I was wrong. I accept full responsibility for my behaviour. I am asking the court to please accept my apologies formy past conduct. I promise the court I will never do this again.

I am ashamed, full of remorse for my actions and I hope the court canaccept my apology and I am asking that I might be given the opportunity to help prove my remarks and to make amends to the court, tothe victims and to my family. [56] Ms Link is clearly not criminally oriented in her thinking. Her offending behaviour is overwhelmingly related to her addiction,and more particularly her unstable lifestyle and the drug involved companions she met and under whose influence she fell in 2010.

CROWN’S ARGUMENT FOR A PENETENTIARY SENTENCE [57] As seems commonplace in recent robbery cases in this court, the Crown asserted that a penitentiary sentence is the onlyappropriate sentence for Ms Link on that offence. The Crown did not seek further custody on the theft under and breach charges. [58] The Crown relied on R. v. Simon, 2007 MBCA 97. The Crown cited the case for the appeal court’s observation that “[t]hesentencing judge acknowledged that this court has said that for robbery of the kind committed here, the ordinary sentence shouldgenerally be a penitentiary term” at paragraph 11.

However, I note that the Crown did not read out the rest of that quote which continued“especially when considering multiple offences of robbery.” [59] In that case the offender was before the Court for five armed robberies. The Court noted that just prior to his 18th birthday, theoffender had committed two armed robberies while masked and armed with a knife. After he turned 18 he committed four more similaroffences, also while masked and wielding a knife.

After being granted bail he committed the fifth robbery, also while masked andwielding a knife. [60] The thrust of that decision focused on the fact that the offender had committed five armed robberies. The sentencing judge hadimposed a global conditional sentence of 22 months less one day (having given credit for time served of two months) in view of theimpressive steps towards rehabilitation. [61] The Court of Appeal said that in view of the number of offences the sentence was so low it was unfit. The Court also noted thatthe accused had breached the conditional sentence before the appeal was heard.

In approving R. v. Johnas (1982), 1982 ABCA 331, 32 C.R. (3d) 1 at paragraph 20 of its decision, the Manitoba Court of Appeal seemed to adopt the comments of the AlbertaCourt that “multiple offences are in a category of their own.” Ultimately, for the five robberies, a three year sentence was imposed. [62] In the course of that decision, however, the Manitoba Appeal Court at para. 17 acknowledged that there are robbery caseswhere heavier sentences had been imposed than in the case before it, and those where lesser sentences were imposed. The cases citedincluded R. v. Bruyere (J.D.) (1999), (MB CA), 134 Man.

R. (2d) 119 (C.A.) (nine months conditional for onearmed robbery) and R. v. Clare (A.) (2000), (MB CA), 145 Man. R. (2d) 142 (C.A.) (12 months conditional for twoarmed robberies). The Court did not cast doubt on the correctness of a wide variation in sentencing.

Freedman J.A. observed at para. 19: Suffice it to say that each of these cases turns on their particular facts, e.g. some of the accused had no records, some had lengthy records,and on the assessment by the sentencing judge of how the principles of sentencing should be applied in the particular case. [63] Of late our Court of Appeal has repeatedly recognized the difficulties of the sentencing process and reiterated that it isinherently an individualized process left to the discretion of sentencing judges, provided that the appropriate principles are weighed inthat process. [64] Unlike the Alberta Courts, the Manitoba Court of Appeal has not laid down a “starting point” for robbery sentences; nor has itin recent times even maintained strict adherence to the notion, expressed in some earlier cases that “absent exceptional circumstances, anarmed robbery should attract a penitentiary sentence.” Indeed at paras. 18 and 19 in R. v.

Simon, supra, the Court approved JusticeSteel’s analysis in R. v. Sorensen, 2006 MBCA 38 at 19 which specifically rejected the currency of that type of bald statement. [65] In further support of its argument for a penitentiary sentence, the Crown also referred to R. v. Huth 1989 CarswellMan433(Man. C.A.). There the accused committed a bank robbery and while on release for that he robbed a Chicken Delight restaurant. Hepleaded guilty to two charges of robbery and was sentenced to one year on each charge concurrent.

In a five paragraph single pagedecision, the Court set aside a 12 month term and imposed two years in the penitentiary, Monnin C.J.M. simply stating “[w]e repeat thatarmed robbery should normally carry a penitentiary term”. [66] This case is not helpful, in that we are told nothing about the details of the offences, or the circumstances of the offender.Obviously it was seriously aggravating that while on bail for a bank robbery the offender committed a second robbery.

[ 67 ] If the remark by the Chief Justice reflects the sentiment expressed in some cases of that vintage that “absent exceptional circumstances, a penitentiary sentence is required...” its validity is dubious in the light of Steel J.A.’s remarks in Sorensen , supra , cited with approval in R. v. Simon , supra, at para. 19 and referenced above. [ 68 ] At an even more basic level, it is difficult to see why Ms Link, who played a lesser role in a single robbery, should get an equivalent sentence to Mr.

Huth who committed two armed robberies, first a bank robbery, then a second while out on bail for the first. [ 69 ] The only Manitoba authorities cited in support of a penitentiary sentence for Ms Link were the two discussed above. [ 70 ] As to the other authorities in support of a penitentiary sentence, heavy reliance is placed on Alberta decisions which are governed by the three year “starting point” guideline set by the Alberta Court of Appeal. Most bear little resemblance to the facts at bar, and are cited it seems to urge at least a penitentiary starting point in Manitoba. [ 71 ] The Crown pointed to R. v.

Johnas (1982), 32 C.R. (3d) l (Alta. C.A.) which held that, in that province, that normally three years sentence is a fit sentence for an unsophisticated robbery of an unprotected commercial outlet. That appears to be one of the earliest cases which set out the “starting point” guideline. [ 72 ] As an example of a more recent statement of that approach the Crown relied on R. v. Howse, 2006 ABCA 163 . The Court was dealing with a 31 year old recovering drug addict offender with a previous record of 54 offences, some involving violence or weapons.

He pleaded guilty to four counts of armed robbery of convenience stores. There was an effective eight year sentence imposed by the sentencing judge, who rejected the defence request for a conditional sentence. The Alberta Court of Appeal dismissed the appeal referencing “the three year starting point for convenience store robberies.” [ 73 ] The Crown also relied on R. v. Lee, 2004 ABCA 70 concerning a convenience store armed robbery.

There the Alberta Court of Appeal noted the offender – who had a prior record of 40 convictions albeit most in youth court - had a high risk of reoffending, his criminal conduct was escalating; there was premeditation, along with the use of a disguise. Given these features, the Court found the six months sentence initially imposed to be too great a departure from the three year Alberta starting point.

An effective six months sentence was overturned and a two year sentence was imposed. [ 74 ] The Alberta decisions are of little assistance in determining the sentence in this case because of the “starting point” approach that is not the law in Manitoba, and because the cases are so factually different in terms of circumstances of the offences, the offenders, and often, the number of offences. [ 75 ] Finally, in support of a penitentiary sentence the Crown cited R. v.

Hawkins, 2008 NBCA 40 , where the New Brunswick Court of Appeal noted that the primary consideration for sentencing for cases such as armed robbery is the protection and safety of the public. Other than that uncontroversial proposition, there is nothing in that case of assistance. The case dealt with a 29 year old drug addict with a lengthy criminal record who plead guilty to 33 offences and received 20 years of incarceration.

The Appeal Court surveyed other lengthy sentences for multiple robberies, finding that the trial judge had paid insufficient attention to parity issues and rehabilitation, and reduced the sentence from 20 years to 13 years. [ 76 ] Interestingly enough even in Alberta, trial judges can and do depart significantly from the three year starting point when the circumstances are appropriate. The Crown filed R. v. Conlon , 2011 ABPC 259 presumably not as guidance for a sentence for Ms Link but in support of the argument that for this offence a CSO is not available.

That argument will be dealt with below. [ 77 ] In Conlon , the 30 year old first offender, seriously addicted to crack cocaine, and desperate for his next fix, participated in a robbery of the Happy Can Bottle Depot in Calgary that was instigated by two others. Initially he was persuaded to be the wheel-man but ended up taking a more significant role. Using his personal vehicle, he first drove the co-accused to Wal-Mart where the two others bought gloves and ski-masks for the three of them. He agreed that his license plate should be covered up, and then drove the others to the Bottle Depot.

With his consent, the offender agreed to become the lookout man in the store rather than remaining in the car. The masked trio entered. A co-accused removed what appeared to be a sawed-off shotgun from a garbage bag, pointed it at the cashier, racked it and threatened “[y]ou have two seconds to open the register or I’ll put one in ya.” The three robbers left the store with between $2500 and $3000.

The court found that the offender was in on the planning of the robbery; he offered the use of his car (and as noted drove the co- accused to the store to purchase the disguises); he consented to a shotgun or replica being brought to the scene of the robbery in his car; he did nothing to object to the use of the weapon; he donned a balaclava to look more threatening; he stood watch over the customers and employees in an aggressive manner with another masked man while the robbery was ongoing, he left with the money and transported the co-accused away and benefited in the spoils of the robbery to the tune of over $1000. [ 78 ] It is quite obvious that there were many more aggravating features about that robbery and his involvement in it than are present in Ms Link’s case.

What he had somewhat in common with Ms Link, however, is that in the three years between the robbery and his sentencing date, he had turned his life around completely. He had a glowing PSR and was assessed at a low risk to reoffend, had ceased his drug use, undertaken successful rehabilitation treatment and counselling, become a devoted husband and father and successful employee.

After finding the offence to be a SPIO such that a CSO was unavailable, the Court sentenced the accused to 90 days intermittent with two years probation to follow including restitution and community service to follow, emphasizing the unique features of the case. If Conlon is of any assistance in this case, it is in pointing to an appropriate range of sentence – a far cry from the penitentiary sentence the Crown seeks. CONCLUSION ON PENETENTIARY SENTENCE [ 79 ] The principles of sentencing are set out in s. 718 – 718.2 of the Code .

I will refer to these principles again in the final portion of my decision, but at this point I can come to no other conclusion given the circumstances of this offence and of this youthful first offender, that a penitentiary sentence of two years or more, as urged by the Crown would be harsh and unfit. [ 80 ] I fully recognize that a party to the offence, even if not the principal, can and often should be held equally responsible or morally blameworthy in the commission of it. But it is not always the case. It depends on the facts. Even the victim in this case

acknowledged Ms Link’s very marginal participation. As noted above she said Ms Link was an “accomplice maybe?” Ms Phillips states that Ms Link “...just stood there, confused as if to say, what do I do next, she seemed flustered, not really involved.” There was a surveillance video which apparently substantiates that recollection by the victim.

And we have the statements of the offender to the effect that on the day in question she was using “meth and marijuana”, that during the robbery she “was frightened and my brain wasn’t able to register the reality of what was happening.” As to the most aggravating feature of the robbery – a gun, albeit replica, being pointed at the employees – the Crown accepts that the offender did not know that Foui had such a weapon or that he would use it until he produced it. [ 81 ] On the facts of this case I find that Ms Link’s moral blameworthiness and degree of responsibility for the offence to be very significantly less than that of Foui.

This decision ought not to guide the sentencing of Foui. [ 82 ] Given this, I find that a penitentiary sentence would be disproportionate to the seriousness of the offence and particularly the role of this offender and the degree of her responsibility for the most serious aspects of it.

Not only that, a penitentiary sentence would fail to take adequate account of the mitigating circumstances in this offender’s personal circumstances including her status as a youthful first offender, and the very significant and successful rehabilitative efforts she has undertaken. [ 83 ] A penitentiary sentence for Ms Link could only be justified by a sentence focusing solely on the seriousness of the offence of robbery in the abstract, and then considering only general deterrence and denunciation to the virtual exclusion of all other sentencing considerations, such as rehabilitation and the principle of restraint.

That would not amount to individualized consideration of a just sentence. Nor would such a sentence, in my view, best contribute to the safety and protection of the public. THE DEFENCE ARGUMENT FOR A SUSPENDED SENTENCE [ 84 ] The defence suggested that there were exceptional circumstances present in this case that should warrant serious consideration being given to the imposition of a suspended sentence. [ 85 ] The defence pointed first to the very minimal role taken by Ms Link in this offence.

I accept that her role was minimal. [ 86 ] Defence Counsel, also in support of a suspended sentence pointed to Ms Link’s extreme youth at the time of the robbery, having turned eighteen less than three months prior to the robbery. Next, defence laid emphasis on the fact that Ms Link has no prior record. [ 87 ] Finally, defence pointed to the fact that the offence took place when Ms Link was in the grip of an addiction, largely homeless and associating with others involved in the drug lifestyle.

While these were choices of Ms Link’s to a large degree, when she made those choices she lacked maturity and judgment and was vulnerable to negative influences. While it took some time even after the charges to begin, defence relies on the remarkable progress she has made in the last number of months in turning her life around, addressing her addiction and other criminogenic risk factors.

Defence argued she is essentially a good person who is now back on track in a stable living situation suited to ongoing success in achieving a permanently sober lifestyle. [ 88 ] Counsel argued taking all these features into account, a suspended sentence is appropriate here. Individual deterrence is no longer required, and general deterrence considerations do not demand a jail sentence in this case. The protection of the public is best served by emphasizing rehabilitation, in particular addressing the alcohol and drug risk factors.

Those factors are being addressed now effectively – and likely even more effectively – in the community than in jail. In addition, defence submits, a probationary period could include community service and a curfew that would provide a measure of deterrence. [ 89 ] Defence counsel submitted that in the past, and especially prior to the imposition of the conditional sentencing regime, there were cases of robbery where a suspended sentence was imposed.

I agree that once the CSO regime was introduced, joint submissions or even defence submissions often focused on a CSO as the vehicle for a community based disposition in robbery cases. Academic studies have substantiated that at times the conditional sentence regime had the unintended effect of increasing use of jail sentences, albeit via a CSO. [ 90 ] I do not doubt that there are circumstances where a suspended sentence may be appropriate for a robbery offence. Recently in R. v. Kunzig, 2011 MBPC 81 , I imposed a suspended sentence with probation on a young adult for an offence of robbery.

In that case the 18 year old first offender played a minimal role in a street level robbery of some younger teens. He too had taken major steps in rehabilitation. See paragraphs 47 to 64 of that decision for a discussion of relevant principles and case law.

This is a recent decision but I note that no appeal from the suspended sentence was taken by the Crown. [ 91 ] It is difficult to find many reported decisions of cases where a suspended sentence was imposed in robbery cases, but it must be remembered that the vast majority of provincial court decisions, where the bulk of robbery sentences are imposed, are unreported oral decisions.

Certainly this court often hears of robbery offences where a suspended sentence has been imposed when being provided with past records of offenders. [ 92 ] As I noted in Kunzig at para. 60 , robbery can cover a very large range of conduct, and offenders are unique. As a result, robbery sentences can cover a wide sentencing range, including, in rare cases, a suspended sentence (see R. v. Carver , [1980] M.J. No. 257 (C.A.) ; R. v. Ramsay , [1985] M.J. No. 417 (C.A.) and R. v. Bartlett , [1961] M.J.

No. 2 (C.A.) ). [ 93 ] Ultimately, however I am not satisfied that this is an appropriate case for a suspended sentence, although I acknowledge the mitigating factors emphasized by defence are significant and ought to carry weight in determining the ultimate sentence.

[ 94 ] I have reached that conclusion for three principal reasons. First, this robbery is that of a convenience store. The courts in Manitoba are well aware of the prevalence of this type of offence, and of the fact that employees of such stores are in a vulnerable position. This fact is rather shockingly evident in this case in that the victim told the Probation Officer that she has been robbed several other times! An appropriate response to this type of robbery will almost invariably be a jail sentence of some duration, in order to address objectives of deterrence and denunciation.

Although I accept that Ms Link’s moral blameworthiness is significantly less than Foui’s, still, she agreed to go along with Foui on the convenience store robbery, and did participate in it to a degree. [ 95 ] Moreover, a gun was used in the offence. It was not known or anticipated by Ms Link that it would be so, but she knew a “jack- up” was planned and agreed to be involved in what is an inherently unpredictable event. [ 96 ] Finally, I note that after the offence, Ms Link continued to involve herself in criminal offences. She stole, she breached her bail conditions, and she failed to appear in court.

Although the Crown is not seeking further jail on those offences, I cannot ignore her post- robbery conduct in considering whether she merits the leniency of a suspended sentence for the robbery offence. [ 97 ] Having rejected the defence argument for a suspended sentence and the Crown argument for a penitentiary sentence, the next step is to consider whether a conditional sentence is available.

IS A CONDITIONAL SENTENCE AVAILABLE FOR THIS ROBBERY? [ 98 ] The defence argued that if a suspended sentence could not be imposed, a community based sentence could and should be imposed by permitting Ms Link to serve a jail sentence in the community through a Conditional Sentence Order. (CSO). While CSO’s have been imposed for robbery sentences in the past, as a result of the amendments to the Code as of December 1, 2007, their potential applicability to robbery sentences has been narrowed. In this case, the Crown says Ms Link is not eligible for a CSO because of the amendments.

The defence disagrees. [ 99 ] After this case was argued, I had to deal with this issue in detail in another case: R. v. Kotelko , 2011 MBPC 76 . I provided this decision to counsel and offered them an opportunity to make any further submissions on it. Neither counsel wished to do so. [ 100 ] Not surprisingly, I intend to apply the analysis in Kotelko to this case. I will paraphrase or repeat some of the discussion in that case here. [ 101 ] As noted, certain amendments were made to the conditional sentence regime as of December 1, 2007.

Those amendments were intended to reduce judicial discretion to impose conditional sentences in cases Parliamentarians deemed too serious for such sentences. [ 102 ] This was accomplished by amending s. 742.1 to delineate a class of offences that are to be excluded from the CSO regime: “a serious personal injury offence as defined in s. 752”. The Crown argues this case falls within a serious personal injury offence (SPIO) and is ineligible for consideration for a CSO.

Section 742.1 states: 742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and 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, 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 offender’s compliance with the conditions imposed under

section 742.3. (emphasis added) [ 103 ] The definition of SPIO in

section 752 is found in

Part XXIV of the Code which deals with Dangerous Offenders (DO) and Long- Term Offenders (LTO). In that context, the commission of such an offence can open the door to judicial consideration of those exceptional sentencing options. [ 104 ] Rather than creating a specialized definition for the purposes of the CSO amendments, the legislators incorporated the one used for LTO or DO proceedings. In the CSO context, the commission of such an offence closes the door to a CSO. [ 105 ] The definition in s. 752 states: “ serious personal injury offence” means (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, or (

b) an offence or attempt to commit an offence mentioned in

section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a

third party or causing bodily harm) or 273 (aggravated sexual assault). [ 106 ] It might seem at first blush that the offence of robbery, without more, must be a SPIO offence. However there are different modes of committing robbery in s. 343 of the Code : 343. Every one commits robbery who (

a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property; (

b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person; (

c) assaults any person with intent to steal from him; or (

d) steals from any person while armed with an offensive weapon or imitation thereof. [ 107 ] It seems clear that where the charge of robbery is particularized as described in s. 343(

b) the use of violence is inherent in the offence and thus a CSO is excluded by the amendments. In R. v. Draper, 2010 MBCA 35 , para. 40 , the Manitoba Court of Appeal left open the question of whether robbery is always a SPIO. [ 108 ] The weight of existing authority accepts that not all robbery offences constitute SPIOs. I agree. In this case, the Crown did not take exception to that proposition. [ 109 ] Clearly, the legislators chose not to expressly exclude robbery, while certain other offences were expressly excluded, such as sexual assault.

Where the mode of robbery is not specified in the information or indictment, or, as here, the mode of robbery is alleged as s. 343(d) (“did steal from any person while armed with an offensive weapon or imitation thereof”), an analysis must normally be undertaken. Was there use or attempted use of violence? Was there conduct endangering or likely to endanger the life or safety of another person, or conduct inflicting or likely to inflict severe psychological damage?

If yes, the offence is a SPIO and a conditional sentence is not available. [ 110 ] In this case, the Crown indicated the argument was focused solely on whether there was a “use or attempted use of violence”. In fact, the Crown further particularized the argument submitting only that there was an “attempted use of violence” by Foui in the robbery (s.752(a)(i)). The Crown indicated it was not asserting that there was “serious psychological harm” or “conduct endangering or likely to endanger” (s. 752(a)(ii)). USE OR ATTEMPTED USE OF VIOLENCE [ 111 ] I agree with the Crown’s submissions based on R. v.

Lebar , 2010 ONCA 220 , R. v. Goforth , 2005 SKCA 12 and R. v. Jolicoeur , 2011 MBQB 129 , that once a court has concluded that violence was used or attempted, there is no further requirement that the violence be “objectively serious” before a determination of a SPIO can be made. ( See Kotelko , supra, at para. 104-112 .) [ 112 ] The Crown argued that when Foui pointed the gun at the store clerks close to their faces (about three feet away) he attempted to use violence. Given that Ms Link pleaded guilty as a party to this offence, it does not matter that she herself did not hold the gun.

Nor does it matter that she did not know that Foui had a gun or would use it in the robbery. Once he produced it she did not extricate herself from the situation by exiting the store; in fact she helped him by producing the bag to hold the stolen goods when he yelled “Bag, bag, bag!” during the robbery. The Crown argued: She had prior knowledge they were going to rob the store. It’s clear she did not know of the weapon prior to entering the 7-Eleven. She also aided Mr. Foui in the commission of the offence by producing the bag and also by assisting him with transporting the stolen goods.

The offence that she is a party to is where Mr. Foui is armed with a weapon. He brandishes it by pointing it directly at the faces of Ms Phillips and Mr. Roy while Ms Link remains in the store. [ 113 ] The Crown relied on the authorities of R. v. Lebar , 2010 ONCA 220 and R. v. Ponticorvo , 2009 ABCA 117 , R. v. Conlon , 2011 ABPC 259 . [ 114 ] In Conlon , the court found the robbery to be a SPIO. Daniels P.J. noted that Mr. Conlon did not actually hold the weapon or threaten anyone with it.

However that was of no importance in determining that he had committed a SPIO and was ineligible for a CSO, in her view. [ 115 ] I have already referred to the facts in Conlon , supra , at para 77 above. Clearly Mr. Conlon well knew about the planned use of the sawed off shotgun in that robbery. That is a significant factual difference that could affect the analysis of whether in reference to Ms Link, the offence must be considered a SPIO, even if the offence is a SPIO for sentencing of Foui.

It is a difficult and interesting question whether a single offence can be a SPIO qua one participant but not necessarily qua a co-accused. I am inclined to the latter view, given that sentencing is an individualized process. [ 116 ] While the Crown says Ms Link had a chance to dissociate herself from Foui’s use of the gun, I do not accept that in the particular and unique circumstances here that that opportunity was real or meaningful as opposed to theoretical.

Even assuming that Foui’s use of the replica firearm constituted the “attempted use of violence”, making the offence a SPIO for his sentencing, I cannot accept that Ms Link participated, acquiesced, or was involved at all in his action in pointing the gun. The Crown focused on the fact that she provided the bag for the stolen goods. When he yelled for her to do so, he was holding a gun which caught her by surprise. When someone holding a gun directs a person to do something, it is not surprising that the person complies. [ 117 ] I accept that Ms Link’s role was minimal.

While she can be faulted for not doing what she ought to have done, she was under the

influence of drugs, frightened, no doubt shocked and surprised when a gun was produced, and according to the victim of the offence wassomewhat like a “deer in the headlights” during the robbery. Given the short duration of the robbery – about 60 seconds, according tothe Crown – it was over before she had a meaningful opportunity to appreciate the seriousness of the situation and properly extricateherself from it.

She played no role in intimidating employees, nor did she act as the “muscle” behind Foui. [118] Considering these unique facts I find the offence is not a SPIO in relation to Ms Link, even if it could be so characterized inrelation to Foui. [119] More fundamentally, however, adopting the analysis I used in Kotelko, supra, I find that the use of the gun by Foui – althoughdeplorable to say the least – does not amount to the “use or attempted use of violence” as that term is used in the definition of a SPIO in s.752(a)(

i) of the Code. I can well appreciate how the pointing of a gun in a robbery may well constitute “conduct... inflicting or likely toinflict severe psychological damage upon another person” or, if there is evidence that the firearm was loaded, it could be found to be“conduct endangering or likely to endanger the life or safety of another person” under s. 752(a)(ii) of the definition of SPIO. Here theCrown did not rely on s. 752(a)(ii) of the definition. [120] At most, the use of the replica gun amounted to an implied threat of violence.

With respect to the courts that have foundotherwise, a threat of violence is not the same as the use or attempted use of violence. To amount to use or attempted use of violence, andthus constitute a serious personal injury offence, there must be evidence that some kind of physical force was actually used (hitting,pushing, stabbing with a knife, shooting someone) or attempted use (swinging at a person with a fist or weapon but missing, attemptingto stab someone, firing a shot but missing.) See the discussion in Kotelko, supra at paras. 144-153 where I reviewed a number ofauthorities and principles of statutory

interpretation in coming to that conclusion. I adopt that analysis here, but will not repeat it. Asnoted above, counsel were provided with that decision and invited to make any submissions they wished on that point. CONCLUSION ON AVAILABILITY OF CONDITIONAL SENTENCE [121] I conclude that the offence Foui committed is not a SPIO within the meaning of that definition in s. 752(a)(i). He did not use orattempt to use violence, that is to say physical force. At most he implicitly threatened the use of violence by pointing the replica gun atclose proximity to the employees.

Thus Ms Link, a party to that offence, is eligible for a CSO if she otherwise qualifies. [122] In the alternative, even if the conduct of Foui does constitute a use or attempted use of violence such that the offence is a SPIOand he is not eligible for a CSO, given that Ms Link knew nothing of the existence of the gun, did nothing to support its use once it wasproduced, and had no meaningful opportunity to distance herself from its use, the offence cannot be characterized as a SPIO in relation toher. On this alternative basis she is eligible for a CSO.

SHOULD A CONDITIONAL SENTENCE BE IMPOSED? [123] The Crown took the position that a CSO should not be imposed because the safety of the community would be endangered bythe offender serving the sentence in the community. The Crown argued that she poses a risk as illustrated by her reoffending on threeseparate occasions, referring to the three guilty pleas to charges of failing to comply with court orders.

She also drew the Court’sattention to the fact that Ms Link has a substance abuse problem and that she initially continued to use substances while reporting for thepreparation of the PSR. [124] The Crown argued that there is a nexus between Ms Link’s offending behaviour and substance abuse issues and that she has onlystarted to address the addictions issues and therefore still poses too great a risk to the safety of the community. [125] I disagree.

While the breaches are clearly troubling and have not been overlooked, it is understandable that addressing a seriousdrug addiction issue is difficult, and there can be missteps. All of the breaches occurred prior to the significant steps taken on the road torehabilitation. Beginning days after the last breach, in May 2011, she checked herself in to a detoxification program. She next completedan Addictions Foundation of Manitoba Residential Treatment program at River House.

She then arranged to reside in Destiny House, asober house, and remained there for over seven months, complying with its rigorous program including random urine tests. Followingthis, on January 14, 2011 she returned to reside with her mother and is attending AA meetings five days a week, working, and attendingschool. She is doing well in the community. I conclude based on the evidence of her drug rehabilitation that she is not a danger to thecommunity. She has a track record of some nine months of sobriety. [126] I am strengthened in this conclusion by the decision in R. v. Bruyere, supra.

As noted above, that decision was referenced withapparent approval relatively recently in in R. v. Simon, 2007 MBCA 97 at para. 17 by Freedman J.A. for the Court.

In Bruyere the Courtopined, concerning risk of danger to the community related to abuse of alcohol and drugs: That problem, all else being equal, is better dealt with in a non-incarceratory context and not in and of itself sufficient in my mind tojustify a finding of danger in the community. (para. 10) [127] In the alternative, the Crown submitted that a CSO would be in conflict or inconsistent with the fundamental purpose andprinciples of sentencing, particularly deterrence and denunciation. I disagree. [128] Certainly, deterrence and denunciation are important sentencing objectives.

But clearly courts have frequently held, following R.v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61 that these objectives can be satisfied through a CSO. Where a young, first offenderis to be sentenced, rehabilitation must also play a significant

part in the sentencing analysis. As well, I must pay attention to s. 718.2(

e) ofthe Code which provides, that all available sanctions, other than imprisonment that are reasonable should be considered, with particularattention to the circumstances of Aboriginal offenders, such as Ms Link. [129] In Bruyere, supra, the Manitoba Court of Appeal faulted the sentencing judge for giving insufficient attention to some of thesefactors, overturning a nine month jail sentence and substituting a nine month CSO, with lengthy probation to follow, for a conveniencestore robbery committed by a 20 year old with no prior record. Bruyere walked into a convenience store while intoxicated.

Heapproached the clerk from behind and grabbed her by the throat with both hands. He pushed her up against the counter and demanded

money. The clerk complied and the accused fled. (para. 3) [130] In my view, the moral blameworthiness of the accused in that robbery was higher than Ms Link’s in this case. Today, that accusedwould not be eligible for a conditional sentence due to the actual physical violence he used against the clerk. [131] I am satisfied that in this case, where Ms Link is eligible for a CSO, that a conditional sentence is appropriate and can reflect therelevant sentencing principles. A conditional sentence is still a jail sentence, with the stigma and curtailment of liberty that comes withsuch a sentence.

THE DURATION OF THE CSO [132] Generally, a conditional sentence is somewhat longer than a sentence that would be required to be served in an institution. [133] In Kotelko, supra, at paras. 174-187, I considered and reviewed cases and principles to be considered dealing with youthful firstoffenders facing a first sentence of imprisonment. I rely on that discussion here. [134] As I noted in that decision, our community understands that young adults sometimes behave foolishly, and some commit criminalacts.

Some, as did Ms Link, become involved with drugs that are all too available in the community and find themselves in the grip of anaddiction at an early age. [135] While young adults must not escape unpunished for their criminal acts, their immaturity and lack of experience diminishes theirlevel of responsibility and moral blameworthiness for crimes they commit as compared to mature adults. It is only just that this bereflected in the sentence imposed.

As the moral blameworthiness and consequent degree of responsibility of youthful offenders is less,sentences of imprisonment should be shorter in duration compared with older offenders. [136] In Kotelko, I also referenced a number of decisions concerning deterrence. (see paragraphs 176-184 and paragraphs 191-196)Those decisions suggest that for youthful offenders, the primary concern should be individual deterrence, rather than general deterrence.To the extent general deterrence is relevant, it normally has an attenuated role in the sentencing of youthful offenders.

Moreover, withrespect to both forms of deterrence, it does not necessarily follow that long sentences are required to achieve those objectives. Shortsentences can be very effective by reason of “the memory of clanging prison gates”. The significance of the criminal record itself aspunishment should be considered. In itself, a conviction for robbery is a very serious matter, with potentially lifelong consequences forMs Link. [137] One of the important authorities I relied on in Kotelko, supra, that is worth mentioning here is the decision of the Manitoba Courtof Appeal in R. v.

McCormick, (MB CA), [1979] 4 W.W.R. 453. In that case the Appeal Court upheld a three monthsentence for a 20 year old offender who committed an armed robbery of a motor vehicle service station at knifepoint. The accused entered the office of Mid-West Car Wash and confronted the loan (sic.) attendant who was situated near the cash register;he pulled out a knife, held it against the attendant’s chest and told the attendant that an accomplice waited across the street with a gunpointed at the attendant’s head.

The accused then took $65.00 from the cash register and (sic.) from the premises.” (para. 37) (emphasisadded) [138] It seems clear that the circumstances of that offence, if anything, are more serious than those in this case. There were someunusual aspects to the case based on the accused’s consumption of valium and the expert evidence about the effect of that drug. Inapproving R. v. Demeter (1976), (ON CA), 32 C.C.C. (2d) 379 (Ont.

C.A.) the Manitoba Court of Appeal observedthat Dubin J.A. in Demeter had approved a three month sentence for a robbery committed by two young men that was similar to therobbery committed by the accused in the case before it. The Manitoba Court of Appeal held that the trial judge was entitled to rely onthat case as an example of an appropriate sentence. [139] The Court observed that the primary question to consider in determining the length of sentence for youthful first offenders is thefollowing: what period is needed to impress on the particular offender before the court the gravity of the offence?

Such a term need notbe lengthy.

Had I been obliged to send Ms Link to an institution for her jail sentence I conclude that a short custodial term, followed by aperiod of probation would afford the best prospect for her ongoing rehabilitation, and if that is accomplished, the protection of the publicand the interests of society are best served. [140] A jail sentence in the range of three to six months would seem proportionate to her role and responsibility for the crime, andsufficient to provide the necessary elements of deterrence and denunciation, while still affording weight to the objectives ofrehabilitation, restraint and also heeding the numerous mitigating circumstances including her youth, lack of record, guilty plea, remorse,and the significant steps taken toward rehabilitation.

In Kotelko, I reviewed a number of cases where sentences in that range wereimposed for robbery offences: see the discussion at paragraphs 197-208, which I adopt without repeating. In that recent decision Iimposed a four month jail sentence and a significant fine on two youthful offenders for a robbery – albeit not involving a conveniencestore – where there were a considerable number of aggravating circumstances. [141] Even a short period in a custodial institution would risk disrupting the road to rehabilitation that Ms Link has now taken.

It washer vulnerability and low self esteem that led her to choose the drugs and drug involved companions. She has now demonstrated sobrietyfor a lengthy period from a highly addicting substance. She is working. She is attending school with her grade 12 in sight, has careerambitions for a pro social life and is part of a program designed to help young Aboriginal members of our community succeed. She isfully engaged in the hard work it takes to succeed. In doing so she has achieved some success and likely will continue to do so with thesupports in place.

That success in turn will go a long way toward building her own sense of self-esteem and self-worth that will leave herbetter able to resist the temptation to resume involvement with drugs and alcohol, the main criminogenic risk factor. Fortunately for ourcommunity and for Ms Link, as she is eligible for a CSO, I can fashion a sentence that will not disrupt her rehabilitation. [142] In accordance with the case law, Ms Link’s CSO will be lengthier in duration than would a jail sentence required to be served inan institution.

SENTENCE [ 143 ] After careful consideration of s. 718 - s. 718.2 of the Code and the case law, Ms Link’s circumstances and the circumstances of the offence, I have concluded that the appropriate sentence for the robbery offence is eight months incarceration, to be served under strict conditions in the community. Ms Link will be bound by all of the statutory conditions in s. 742.3(1): (

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 (

i) within two working days after the making of the conditional sentence order, and (ii) 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. [ 144 ] In addition, you must: • Be supervised by Restorative Resolutions; • Attend participate and complete such counselling treatment or programs as directed by your sentence supervisor; • Attend AA meetings four times a week, or on the frequency your sentence supervisor directs, providing a

schedule and locations to your sentence supervisor; • Write letters of apology to the two victims, satisfactory to your sentence supervisor, within the first 30 days of your sentence, and if desired by either victim, meet with them in person to deliver your apologies; • Reside with you mother, Debbie Link, (address to be supplied to your sentence supervisor) and do not move without the permission of your sentence supervisor; • Present yourself at the door or answer a landline telephone (which you shall maintain during the CSO) for curfew checks by the Winnipeg Police Service, your sentence supervisor or their delegates; • Abstain absolutely from the consumption or possession of alcohol, illegal drugs, or prescription drugs unless you have a prescription; • You are not to attend any premises whose primary purpose is the sale of alcohol; or any 7-Eleven in the City of Winnipeg; • You may not carry, possess or own any weapon; • For the first five months of your sentence, abide by an absolute curfew, subject to the following exceptions: · In a medical emergency involving you or a member of your immediate family; · To attend work and school on a

schedule provided to your supervisor in advance; · To attend AA meetings on a

schedule provided to your supervisor in advance; · To meet with your sentence supervisor and attend counselling, treatment or or programs as directed by your sentence supervisor; · To attend to the Public Safety Building to provide a sample of your bodily substance for DNA purposes within seven days; · To travel directly to and from the places noted above; · For a period of four hours a week for personal matters, on a day and time agreed to by your sentence supervisor; · Such other exceptions as your sentence supervisor permits in writing in advance. • For the final three months of your sentence, abide by a curfew between 8:00 pm and 7:00 a.m., subject to the following exceptions: · To attend work, school, AA meetings or otherwise comply with the terms of your CSO above on a

schedule as agreed in advance with your sentence supervisor; · To travel directly to and from the places noted above; · For medical emergencies involving you or a member of your immediate family; · Such other exceptions as your sentence supervisor permits in writing in advance.

[ 145 ] Following the conditional sentence, as part of the robbery sentence, there will be a two year period of probation, to be supervised by Restorative Resolutions, subject to the following conditions: (

a) keep the peace and be of good behaviour; (

b) appear before the court when required to do so by the court; and (

c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; (

d) report to Restorative Resolutions within two working days and after that when and in the manner directed by your probation officer. (

e) complete 100 hours of community service within the first 12 months of the probation period. [ 146 ] In addition, as Ms Link was convicted of an offence in which violence was implicitly threatened by the co-accused, I am imposing a 10 year mandatory weapons prohibition pursuant to s. 109. I am also imposing a (primary) DNA order. [ 147 ] For the remaining offences, the three breaches and the theft under, I suspend the passing of sentence on each and place Ms Link on a supervised Probation Order for 18 months concurrent to the robbery sentence, with the following statutory conditions to be imposed. She must: (

a) keep the peace and be of good behaviour; (

b) appear before the court when required to do so by the court; and (

c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; (

d) report to Restorative Resolutions within two working days and after that when and in the manner directed by your probation officer. [ 148 ] In view of Ms Link’s minimal income, costs and surcharge are waived. _________________________ MARVA J. SMITH P.J.