R. v. Kotelko and Lindell, 2011 MBPC 76

CITATION: R. v. Kotelko and Lindell , 2011 MBPC 76 Date: 2011 11 29 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Carrie D. Ritchot, ) for the Crown ) and ) ) ) Brent Edward Joseph Kotelko ) Hymie Weinstein, Q.C., Lynette Carol Lindell ) for the Accused Kotelko ) ) Steven W. Brennan, ) for the Accused Lindell ) ) ) Reasons for Decision delivered: ) November 29, 2011 M. J. SMITH P.J. INTRODUCTION [ 1 ] Brent Edward Joseph Kotelko (“Kotelko”) and Lynette Carol Lindell (“Lindell”) plead guilty to having committed a robbery on December 17, 2007, contrary to s. 344 (

d) of the Criminal Code . The issue is the appropriate sentence. [ 2 ] Both are youthful first offenders, only 18 (Lindell) and 21 (Kotelko), at the time of the single offence which occurred nearly four years ago. Both have changed their lives significantly since the date of the offence and are now positive, productive members of the community who pose no danger to society.

Lindell is a young mother who is the primary caregiver to a 22 month old daughter. [ 3 ] The Crown seeks a penitentiary sentence, relying on a Manitoba Court of Appeal decision for the proposition that a fit sentence must exceed two years for these offences. Both defence counsel argue for a community based sentence, submitting that a conditional sentence order (CSO) is not precluded by the amendments to the conditional sentence regime that were proclaimed in force December 1, 2007, and is appropriate.

In particular, they argue that notwithstanding this was a robbery, it is not a “serious personal injury offence” (SPIO) as defined in s. 752 of the Code . [ 4 ] The Crown disagrees and argues that even if a sentence of less than two years is appropriate; this is a SPIO so a CSO is unavailable. In the alternative, a CSO is not appropriate for this offence. [ 5 ] The Court has the benefit of Restorative Resolutions’ detailed and lengthy pre-sentence reports (PSR) on each offender, as well as a victim impact statement (VIS).

SENTENCING PRINCIPLES [ 6 ] My task is to draw upon the relevant sentencing principles to determine a just and appropriate sentence, reflecting the gravity

of the offence and each offender’s moral blameworthiness, with the overall goal being the protection of society. The principles are set out is s. 718 – 718.2 of the Criminal Code . Some of those principles appear interrelated. Some appear conflicting and at cross purposes. The task of the Court is to draw on the principles and fashion an appropriate response. [ 7 ] The exercise is individualized focusing on the unique facts in each case. Not only the crime but also the offender must be considered in fashioning a just sentence.

CIRCUMSTANCES OF THE OFFENCE [ 8 ] The crime committed by these offenders - who were boyfriend and girlfriend at the time - is an unusual robbery. Lindell was working at a Dollarama store as assistant manager at the time. Dollarama is a retail store selling inexpensive goods. In essence, their crime was a planned theft from the Dollarama store to be staged or play acted as a robbery of Lindell by her boyfriend, Kotelko. [ 9 ] They had a brief dating relationship and spent much of their time and all of their money on alcohol (both), marijuana (Kotelko) and socializing.

Kotelko was spending about $60.00 a day on those substances. Lindell says at the time she was hanging out at the local hotel and partying and socializing with friends. They began questioning how they were going to maintain this lifestyle and finance it. They began talking about her job at the Dollarama store. Lindell was drinking heavily during this period of time. [ 10 ] Lindell told her boyfriend about the store’s procedures regarding money, including when and where it was counted and kept.

At first they had some casual drinking conversations about taking some money; then it progressed to where they developed a plan to stage a robbery at her workplace. The crime was thus clearly motivated by greed, and was planned. Kotelko says he thought about backing out, but the opportunity to get money to address his financial situation, coupled with his insecurity about the relationship and the fact that he didn’t want his girlfriend to think he was too scared, led him to overcome his hesitation and misgivings.

This latter motivation speaks volumes of his immaturity at the time. [ 11 ] As scripted he showed up dressed as a robber, complete with balaclava. He had a knife in his pocket. He went directly to the back office where he knew Lindell would be counting the money, and knocked on the door. He said his name was Chris, the name Lindell had told him was the district manager’s. Lindell let him in. [ 12 ] The best laid plans go awry. When the door to the money counting office was opened, Lindell was not alone. She was there with another female employee.

Kotelko said he didn’t expect the other person to be there, but she was. The Crown accepts his statement that “I was just shocked . . . that she was and I said please get under the desk, and she did.” He told them “both of you on the ground.” He elaborated: “I got over there so, well, I had [the knife] in my pocket. So then I got in there. The other chick was in there, the other girl, and so I thought maybe when I leave she’ll call somebody so I cut the phone line . . .” He added: “I just asked the girl to get under the desk. She did it.

That was it.” He told the author of the pre-sentence report that after he was let in the office “[h]e then produced a kitchen knife and ordered them to the floor instructing them not to yell or call for help. [He] then used the knife to cut the phone line and demanded all of the money.” [ 13 ] In his statement to the police, accepted as factual by the Crown, he said: “There was never any intent to injure anybody or hurt anybody.” When asked by the police about the knife and whether he ever intended using it on anyone he answered “God, no.

God, no, I would never hit a girl for one, I would never pull a knife on anybody for a second.” [ 14 ] But the unsuspecting employee had no

part in the play. To her the robbery was very real, and it was terrifying. The robber looked frightening in the balaclava. As noted, he had a knife, which he used to cut the telephone wire in the room. In her statement, the victim described the knife as about six inches long, with a blade of three to four inches. [ 15 ] There is no allegation that the knife was pointed at anyone or used in a menacing way.

It was an agreed fact that the use of the knife was confined to the cutting of the telephone cord, and that Kotelko did not wave it around; nor was there any verbal threat to use the knife. [ 16 ] Kotelko grabbed the cash, and pulled Lindell out of the room with him. She knew the code to the back door, and as planned she let him out. For her part, after the offence, Lindell was overwhelmed with the reality of what she had done. She vomited. She panicked.

She was feeling very sorry for her co-worker as even she experienced feelings of fear and panic. [ 17 ] Still, after Kotelko had left, Lindell maintained the fiction that she was a victim; she called 911 and falsely told the police she had been robbed. [ 18 ] They later met to split up the $3000 that was stolen: Kotelko kept $2000 and Lindell got $1000. The crime soured the relationship and they split up. [ 19 ] The victim told the author of the pre-sentence report that she feared for her life during the robbery, as in her mind the robber appeared aggressive and threatening.

To this day, she has nightmares and flashbacks. The manager of Dollarama confirmed that the victim was traumatized by the robbery. [ 20 ] In preparing a VIS on June 30, 2011, nearly four years after the incident, the victim said her hand was trembling as she wrote about the impact of the crime. The crime stole her sense of safety and security in the community. The fact that the crime went unsolved for a year made matters worse. She wondered if she would be victimized again. She noted:

“The first year was definitely the hardest. I ended up getting a prescription for valium, just to do simple things like grocery shopping. I still, to this day, feel uncomfortable when people get too close or if I see balaclavas on people in the winter. I also had to seek counselling because of being afraid to leave home or go back to work. I still get anxiety when there’s a knock at any door I’m behind, thinking that it could be someone wanting to harm me on the other side. As I write this, I’m shaking, just remembering that night.

Since the incident happened, I have lost trust in people and sometimes I even think everybody walking by me is up to no good. It was never - - I was never that kind of person before. I feel that for the rest of my life, especially around the Christmas holidays when the incident occurred, I will always be reminded of that horrifying night.

Not only did this affect me, it also affected my family, because for the first year I was always fixating on who did this to me and I was always on edge, wondering if the person who did this was able to recognize me and hurt me again.” [ 21 ] In early December 2008, rumours in the community where the offenders lived came to the attention of the police. The rumours led police to suspect Lindell had a

part in it. They called her in, and she immediately made a full confession. She told the probation officer who wrote the pre-sentences report that it was somewhat of a relief to finally have the matter out in the open. [ 22 ] Next they called Kotelko. As with Lindell, he was not arrested, but voluntarily came into the police station as soon as requested and made a full confession. [ 23 ] Their confessions were the only evidence against them. They are both clearly remorseful and plead guilty without going through any preliminary hearing.

For reasons not explained to me, these guilty pleas were not entered until June 30, 2011, almost four years after the offence. CIRCUMSTANCES OF THE OFFENDERS [ 24 ] Both of the accused have been out of custody since their arrests, and from the detailed PSR’s filed at the sentencing hearing, they are not the same people they were at the time of the offence. LYNETTE CAROL LINDELL [ 25 ] At the time of the offence, Lindell was 18 years old and in a dating relationship with the 21 year old co-accused. She was infatuated with him. He wanted to impress her.

Their lifestyle was characterized by excessive drinking that seriously clouded their thinking. [ 26 ] Since the offence, Lindell has matured and made numerous positive lifestyle changes. She realized her mistake almost immediately. She and Kotelko split up. [ 27 ] She has made partial restitution and by the time the sentence is imposed she intends to have the full $1000 paid to Restorative Resolutions. [ 28 ] She is in a three year relationship with her fiancé who is employed in the mining industry. His job requires him to travel, sometimes for extended periods.

They have recently purchased a home together in the Oakdale area of Manitoba. [ 29 ] She is the mother of a 22 month old girl. Lindell’s mother indicates that the birth of this child (in January 2010) has been a turning point for Lindell. Collaterals interviewed indicate that she spends most of her time with her daughter, Sadie, and is a very good mother. Her life is focused on her daughter; her partying days are a thing of the past. When her common law husband is required to travel for his job she is a single parent for her daughter.

Prior to the birth of her child, she was steadily employed as a receptionist where she got along very well with co-workers and supervisors. She is on parental leave from that position. Once her child is old enough she has plans to attend University and pursue a career as a teacher or lawyer. [ 30 ] She gave up drinking completely around the time she learned she was pregnant. She now has only the occasional drink; alcohol is no longer a factor in her life, although it was admittedly a big factor at the time of the offence. She was assessed by the Addictions Foundation of Manitoba.

The report was very positive and indicated that rehabilitation programs or treatment were not required or recommended. [ 31 ] All of the numerous collaterals interviewed described the offence as very out of character for Lindell. She is a high school graduate and was a member of her student council throughout high school. She has already participated in the “Moving On” program run by Restorative Resolutions on a voluntary basis. [ 32 ] Lindell comes before the Court with no prior record.

There has been no re-involvement since the offence. [ 33 ] She is very remorseful for the offence. [ 34 ] The PSR characterizes her as a “very low” risk to reoffend, with no criminogenic risk factors being identified. The PSR recommends a community based disposition. BRENT EDWARD JOSEPH KOTELKO [ 35 ] Kotelko grew up in Warren, Manitoba in a stable and loving home and comes from a family characterized by positive relationships. [ 36 ] A sister told the probation officer that she could not believe her brother was even capable of such a thing. She described him as a good young man who would never hurt anyone.

[ 37 ] Kotelko graduated from high school in 2004 in Warren, Manitoba. Unfortunately his late adolescence and early adulthood was characterized by excessive drinking and drug use. Although he registered for a Red River College lather course after high school, his alcohol and drug use caused his attendance to suffer such that he withdrew from the program. [ 38 ] At the time of the offence, Kotelko was an immature 21 year old in a dating relationship with Lindell, and was drinking heavily and smoking marijuana. She too was drinking to excess.

The substance abuse contributed to the offence. [ 39 ] Kotelko began experimenting with drugs and alcohol at age 15 and progressed to the point that he was drinking excessively on a daily basis as well as smoking marijuana. His substance use negatively affected his education and employment and was a significant factor in his offending behaviour as noted above. [ 40 ] The pre-sentence report indicates that he has stopped smoking marijuana completely and he has decreased his use of alcohol to the point that he would have no difficulty abstaining.

He has made a commitment to himself and to his family to be vigilant about alcohol and drug use and to seek counselling and treatment should there be any recurrence. [ 41 ] Kotelko recently completed an addictions assessment with the Addictions Foundation of Manitoba (AFM) which is described as very positive. The AFM counsellor assessed him as a “low probability of substance dependency.” No services were recommended at this time. [ 42 ] Currently he is self employed as a contractor for residential renovations in several towns in rural Manitoba and is earning approximately $3000 per month.

Prior to this (except for his time at Red River) he had full time employment with a drywall and framing company and commuted to the job location in Winnipeg. He intends to re-enrol in Red River College and pursue a career in this field, possibly opening his own construction business. [ 43 ] Kotelko is in a three year common law relationship with a woman with whom he has recently purchased a trailer in Warren Manitoba. They plan to marry soon and to raise a family in the Interlake area.

The probation officer met with his partner who is very much in support of him. [ 44 ] According to his partner, he has grown and matured in the past three years and is very caring, loving and supportive and is sincerely remorseful. She had known him in the community prior to the offence and could not believe he could have done such a thing, as it is very out of character for him.

She states that he continues to show his guilt, remorse, and shame at home and that he has learned a hard lesson from his involvement with the criminal justice system. [ 45 ] Together with her employment they have a stable financial situation and carefully budget their money. He has paid his share of the restitution ($2000) in full. [ 46 ] Kotelko engages in a number of pro-social leisure activities such as playing on a local hockey team. He can however experience feelings of depression and hopelessness and has felt the shame and remorse of his offending behaviour deeply.

As with Lindell, he has voluntarily participated in probation programming offered through Restorative Resolutions which he has found helpful and informative. [ 47 ] The author of the PSR describes Kotelko as being open, honest and polite and indicates that he is very remorseful for his actions. Kotelko states that he should have confessed to police on his own initiative and often contemplated turning himself in.

His shame, embarrassment and fear of jail held him back. [ 48 ] For some considerable time after he was charged he kept the offense from his parents and siblings as he was ashamed and embarrassed and felt he had let his entire family down. The PSR notes that his family describes the offence as very out of character for Kotelko and attest to his remorse. Numerous letters of reference were filed to the same effect. [ 49 ] At the time of the offence, Kotelko had no prior record. [ 50 ] Since the offence, in February 2010, he received a conditional discharge for a charge of theft under.

He plead guilty without counsel or legal advice. His counsel stated that he should not have plead guilty on the facts which he described to the court. (Submissions, June 30, 2011, p. 34) The transcript of that sentencing was not filed. I do not find this post charge incident to be a significant factor in these proceedings. He must be considered a first offender for this sentencing. [ 51 ] Probation Services has assessed Kotelko as a low risk to reoffend. The sole significant risk factor identified was his alcohol use. Probation Services has recommended a community based sentence for Kotelko.

MITIGATING FACTORS [ 52 ] Both offenders entered guilty pleas. This spares the community the expense of a trial and avoids having the victim relive the frightening experience by testifying in court on one or more occasions. [ 53 ] Both offenders chose to fully co-operate with the authorities. The police had heard only rumours of possible involvement but had no evidence or grounds to arrest either. In response to police requests to discuss the matter, each came voluntarily to the police station and gave full confessions.

Their confessions constitute the sole evidence. [ 54 ] Full restitution of $3000 has been made through Restorative Resolutions.

[ 55 ] Both offenders are deeply and sincerely remorseful and ashamed of their conduct. [ 56 ] In the nearly four years since the date of the offence both have taken great strides and have become positive, contributing members of society. Both Kotelko and Lindell are in new, stable and positive relationships which they see as long-term. [ 57 ] Lindell is a new mother and an accomplished and loving primary caregiver to a toddler; and at times she is the sole caregiver due to her partner’s work demands. She is on maternity leave from employment. Kotelko has established a successful business.

Both have plans to further their education. [ 58 ] Both have significant family supports and associate exclusively with pro social individuals. [ 59 ] These were both youthful offenders - Lindell was only 18 and Kotelko 21 at the time of the offences. [ 60 ] Both have voluntarily taken programming at Restorative Resolutions. [ 61 ] Both have voluntarily attended the AFM and been assessed as requiring no programming. Lindell no longer consumes alcohol, and never had a drug issue.

Kotelko no longer uses marijuana and drinks alcohol only occasionally and is able and prepared to abstain. [ 62 ] These are both first offenders. Neither had any previous record of any sort. [ 63 ] The offence was intended as a theft, not a true robbery, involving Lindell and Kotelko only. AGGRAVATING FACTORS [ 64 ] This was a breach of the trust placed in Lindell by her employer.

Kotelko helped her breach that trust. [ 65 ] The offence was planned and deliberated. [ 66 ] The offence was motivated by greed, to obtain “easy” money for drinking and partying. [ 67 ] Kotelko was masked with a balaclava, which both concealed his identity and made the event more frightening. [ 68 ] A weapon (the knife) was brought along and produced (albeit not brandished or used to threaten the victim directly). [ 69 ] The victim was badly frightened by the crime and still has not made a full recovery. THE CROWN’S POSITION [ 70 ] The Crown cited R. v. King, [1990] M.J.

No. 414 at 3(C.A.) for the proposition that a penitentiary sentence (two years or more) normally results from a guilty plea to armed robbery. [ 71 ] The Crown also relied on R. v. Wozny, 2010 MBCA 115 in further support of the submission that a penitentiary sentence is warranted. In that case the accused, who was addicted to crack cocaine, committed a spree of 17 robberies to obtain money for drugs. In 14 of them he was armed, and in nine he was disguised. The main issue before the appeal court was whether the concurrent four year sentence was appropriate.

The Court of Appeal held that a combination of concurrent and consecutive sentences should be imposed in the particular circumstances of the case, and that the trial judge erred in applying the totality principle to concurrent sentences.

In the end a total sentence of seven years for the 17 gas station robberies was imposed. [ 72 ] Like the two accused in this case, however, Wozny had no prior record. [ 73 ] That Court observed that, when fashioning a sentence that is to be concurrent, it is clear that it is legitimate to impose a more severe penalty given multiple offences, than one might impose for the same offence individually or as compared with a couple or a few offences.

This is to make clear there is no free ride ( see Wozny at para. 70 ). [ 74 ] The Crown focuses on one clause in paragraph 94 of the decision in which, “[f]or the July 28, 2007 robbery committed while the accused was armed with a knife” the Court set out a two and a half year sentence.

This was not a concurrent sentence but one that stood on its own, to which a number of concurrent sentences were added. (The actual sentence for that robbery was subsequently reduced to one and a half years on account of totality.) [ 75 ] The Crown seizes upon the 30 month sentence and argues that appellate authority virtually requires this Court to impose a similar penitentiary term on each of these offenders as they have also plead guilty to a commercial robbery in which a knife was used.

The identity of the charge and the fact that like Wozny neither offender has a record virtually dictates the same result, in the Crown’s view. Of late, in virtually every case on a single count of robbery, the Crown argues Wozny sets the sentencing grid at 30 months. IS A PENETENTIARY SENTENCE REQUIRED? [ 76 ] As noted above, the Crown says the Wozny case should be applied and dictates a sentence in excess of two years. There are significant distinguishing features in the two cases. First, Wozny was almost 25 years old at the time of the offences, significantly older than both of these offenders.

There is a significant maturation process that normally goes on between 18 or 21 and 25. [ 77 ] Second, the accused in that case had a long standing and serious crack cocaine addiction at the time of the robberies. Crack

cocaine is a very difficult addiction to overcome, and because of that there is a very high relapse rate. Crack addiction is highlyassociated with crimes that put the public at risk. [78] I have already noted that the focus of the case dealt with sentencing of an individual who had committed 17 robberies. Here ofcourse we are dealing with a single incident. [79] There are a number of other significant differences. Wozny was assessed at a higher risk to reoffend than either of the offendersbefore the court.

He was assessed as a medium risk to reoffend, in contrast to the low (Kotelko) or very low (Lindell) risk of theseoffenders. [80] Further, there was nothing staged about Wozny’s robberies, which were very real and carried the inherent potential forescalating violence. [81] Moreover, robberies of gas bars and convenience stores by drug addicted offenders are unfortunately prevalent in Winnipeg,presenting obvious and ongoing risks to the community. In addition, these establishments are often open late at night or all night, staffedusually by lone and thus vulnerable attendants.

These factors elevated the need for general deterrence and denunciation to influence thequantum of the sentence upwards, as compared with this case. Thankfully, by contrast, there has been no spate of staged robberies ofretail stores in Winnipeg.

In fact, counsel could not provide a single case with a comparable fact scenario. [82] There is no detail provided in Wozny as to how the knife was used, so it is difficult to assess the comparative danger in thatrobbery as compared to the one at bar. [83] The only striking similarity with Wozny is that like the two accused in this case, Wozny had no prior record. [84] With respect, I do not read Wozny as a case removing the individualized approach to sentencing and directing a quasi minimumsentence for robbery offences.

The sentence imposed for that offence was descriptive of an appropriate sentence for that offencecommitted by that offender and not prescriptive as I read that case. [85] In fact, in several paragraphs of that decision MacInnes J.A. went out of his way to reinforce the fact that sentencing is anindividualized process. See paragraphs 35-40 and in particular the passages quoted from R. v. M.(C.A.), (SCC), [1996]1 S.C.R. 500 and R. v. Nasogaluak, 2010 SCC 6. [86] As MacInnes J.A. stated: 35 Sentencing is a delicate art.

The law is clear that sentencing judges are permitted a substantial discretion in the imposition ofsentence, both as regards duration of the sentence and the type of sentence (that is, consecutive or concurrent) imposed. See M. (C.A.),L.M. and McDonnell. 36 Lamer C.J.C. explained the rationale for this substantial discretion in M. (C.A.) when he wrote (at para. 91): .... A sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencingsubmissions of both the Crown and the offender.

A sentencing judge also possesses the unique qualifications of experience and judgmentfrom having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normallypreside near or within the community which has suffered the consequences of the offender's crime.

As such, the sentencing judge willhave a strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community.The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencingagainst the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needsand current conditions of and in the community.

The discretion of a sentencing judge should thus not be interfered with lightly. [87] Thus I reject the Crown’s contention that a penitentiary sentence the same or substantially the same as that imposed in theWozny case is dictated by that appellate authority.

Not only is the entire focus of that case on a multiple robbery scenario, as notedabove, there are significant difference in the profile of the offenders including the pre-sentence reports, the nature of the offences, andthe prevalence of the type of offences in Wozny as compared with the offence in this case. [88] With respect, the Crown’s submission as to duration of sentence picked from a single line of Wozny was not helpful orappropriately nuanced to be a meaningful contribution to an individualized sentencing process. [89] It is clear to me from the significant number of cases in the past fifteen years where the Manitoba Court of Appeal has upheldor ordered a CSO – by definition one less than two years – for robbery offences, that any term of incarceration imposed in this case oughtto be less than two years.

A sentence of two years or greater would, in my opinion, would be disproportionate to the gravity of thisoffence and each offender’s responsibility for it, taking into account both the aggravating and mitigating circumstances and all otherrelevant sentencing principles and objectives.

[ 90 ] Is a suspended sentence an appropriate disposition? The legislators see robbery as a serious offence, reflected in the maximum penalty of life imprisonment. 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.) ).

A community based disposition is what the PSR recommends. [ 91 ] In this case, there are a number of aggravating circumstances, outlined above. Despite the mitigating circumstances, which relate more to the offenders than the offence itself, a suspended sentence would simply not be proportionate to the gravity of the offence and the offenders’ equally high degree of responsibility for it.

While least restrictive options must be considered, this goal does not override the just desserts component of sentencing. [ 92 ] Having concluded that neither a jail sentence of two years or more nor a suspended sentence is appropriate, I must next consider if a CSO is potentially available. IS A CONDITIONAL SENTENCE AVAILABLE FOR ROBBERY AFTER DECEMBER 1, 2007? [ 93 ] The defence sought a community based disposition as was recommended by the authors of the PSR. I have already rejected a suspended sentence.

The principal argument of the defence appeared to be that even if a term of incarceration was required, a conditional sentence was appropriate. [ 94 ] On December 1, 2007, 17 days before the commission of this offence, legislative amendments to the conditional sentencing regime were proclaimed in force.

Those amendments were intended to reduce judicial discretion to impose conditional sentences in cases Parliamentarians deemed too serious for such sentences. [ 95 ] This was accomplished by amending s. 742.1 to delineate a class of offences that are to be excluded from the SCO regime: “a serious personal injury offence as defined in s. 752”. The Crown argues this case falls squarely 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) [ 96 ] 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. [ 97 ] 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. [ 98 ] 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). [ 99 ] As the accused are charged with robbery it might seem that this offence, without more, must be a SPIO offence. However there are different modes of committing robbery in s. 343: 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. [ 100 ] 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. [ 101 ] The weight of existing authority accepts that not all robbery offences constitute SPIOs. I agree. [ 102 ] 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 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? [ 103 ] There are thus two issues before the court. First, did Kotelko use or attempt to use violence against the complainant in committing the offence?

Second, - and there are two aspects to this question - did he (or they) engage in conduct endangering or likely to endanger the life or safety of another person, or in conduct inflicting or likely to inflict severe psychological damage upon the complainant? USE OR ATTEMPTED USE OF VIOLENCE Must there be a finding that the violence was objectively serious? [ 104 ] Within the case law there has been a divergence of opinion about the proper

interpretation of s. 752(a)(i). Some cases found that once there is a determination that violence was used or attempted, there must be a further consideration of whether the violence used was of a “serious” nature. Only in cases where the use of violence was deemed serious should consideration of a CSO be excluded (or conversely, should the door to a LTO/DO designation be opened.). See R. v. Thompson , 2009 ONCJ 359 . In a similar vein, in the context of the dangerous offender provisions, the Alberta Court of Appeal held that the offence had to be objectively serious to qualify as a SPIO. R. v.

N.(l.) sub. nom R. v. Neve , 1999 ABCA 206 . [ 105 ] Other cases have held that reading the further consideration of the seriousness of the violence into the

section is not a proper

interpretation. According to this analysis, Parliament has decided that if there is any use or attempted use of violence found, a CSO is excluded, or similarly, the door is open to LTO or DO proceedings. This latter

interpretation seems to have found favour in most of the decided cases, including some at the appellate level in other provinces. This was the

interpretation urged by the Crown. The Crown relies on R. v. Goforth , 2005 SKCA 12 . The definition should not be restricted further by importing an evaluation of the seriousness of the violence in clause 752(a)(

i) or of the endangerment in clause 752(a)(ii). [ 106 ] The Crown also pointed to R. v. Ponticorvo , 2009 ABCA 117 . In that case the Alberta Court held that while the restrictive

interpretation in R. v. Neve , supra, was appropriate when the term SPIO is at issue in DO or LTO proceedings, a broader

interpretation of the term should be taken in the context of conditional sentencing regime. Once a positive factual finding under s. 752(a)(

i) or (a)(ii) is made, a CSO is not available and there is no need to consider the objective seriousness of the violence or harm. [ 107 ] The third appellate court to adopt this approach was the Ontario Court of Appeal: R. v. Lebar , 2010 ONCA 220 . [ 108 ] In Lebar , the accused entered a liquor store, touched the cashier’s shoulder, produced a knife with a five inch blade, held it close to her neck and told her it was a robbery. She handed over a sum of money.

The trial judge found that violence was used, but it was not objectively serious enough to constitute a SPIO. [ 109 ] The Ontario Appeal Court held that whether violence was used in a given offence is a straight factual determination to be made by the sentencing judge. The Court accepted that the finding of violence by the trial judge was reasonable and proper. However, the Ontario Court of Appeal held the trial judge was in error when, after having concluded violence was used, she then considered whether the violence was objectively serious enough to be a SPIO.

Having found that it was not objectively serious, she imposed a CSO. [ 110 ] The Appeal Court held that once the trial judge had determined the offence to involve the use of violence, a CSO was excluded. There was no need or authority to consider the matter further. The Court replaced the CSO with a six month sentence of incarceration. [ 111 ] Recently, in R. v. Jolicoeur, 2011 MBQB 129 Duval J. agreed with the analysis in Lebar on this point. She held that once the court concludes that violence was used or attempted, there is no obligation on the court to measure the degree of violence. In an earlier case, R. v.

Cook, 2010 MBQB 237 she had found the same

interpretation of SPIO to be correct in the context of a DO application. [ 112 ] I accept the Crown’s submission on this point. Once it is found that violence was used or attempted to be used, a CSO is excluded. No further evaluation of the degree of seriousness of the violence is required, or indeed permitted. However, this leaves for closer scrutiny just what does constitute the use or attempted use of violence? How are those words to be interpreted?

What constitutes the use or attempted use of violence? [ 113 ] The Crown argued that the use of the knife in all the circumstances constituted a use or attempted use of violence. The use of the knife constituted an implicit threat of violence, and a threat of violence is either a use or an attempted use of violence. In the alternative, considering all of the circumstances, the Crown argued, including the use of the knife, the court should find that the offence was one in which violence was used or attempted. [ 114 ] The defence argued there was no use or attempted use of violence.

While a knife was present it was not brandished, waved about or used in any manner that could be said to constitute an implicit threat. It was used merely to cut the phone cord. [ 115 ] In support, the defence relied on R. v. Griffin, 2010 NSPC 47 . There the accused robbed a gas station while armed with a 10 inch

folding knife. She unfolded it and tapped it on the counter by the clerk, demanding cash. There were no other gestures or further acts nor did she say anything that could be construed as a threat of violence. The clerk gave her cash and she fled. The Court held the use of the knife in this case was

an act of intimidation, not a threat of violence, such that a CSO could be (and ultimately was) imposed. It was an act that inspired fear to obtain a desired outcome, but it did not amount to a threat, which it seems, that court would have found to be the use or attempted use of violence. [ 116 ] The defence further relied on R. v. Hendsbee, 2009 NSPC 50 . In that case the offender stole $400 from a gas station while holding a knife at his side.

The court held, indicating it was following Lebar , supra, that while there may have been an implicit threat in this robbery, it did not rise to the use or attempted use of violence. The knife was not directed toward the clerk nor was it brandished in any way. The accused did not utter any threatening words or gestures. The court concluded it could impose a CSO and did so. [ 117 ] In R. v. Ullah, 2010 ONCJ 45 the defence noted that the offender demanded money from the victim, but when he refused, the offender showed him an imitation firearm and stole his cellular telephone.

The offender had previously intimated to the victim that he was a police officer. Despite the display of the imitation firearm, the sentencing judge found there was no violence or attempted violence: 27 In our case there is no actual violence. There is a clear potential for the infliction of psychological damage in this fact scenario, but without some evidence (either in the facts presented by the Crown or by way of information in a Victim Impact Statement), I do not see how I can arrive at a determination of "severe psychological damage".

The Court in Ullah went on to impose a six month CSO. [ 118 ] The defence argued that R. v. Thompson, 2010 ONCJ 107 provides the type of fact scenario that would constitute use or attempted use of violence and was very different than the case at bar. In that case, the accused waved a knife six inches from another individual while demanding the victim turn over his IPhone while the other robber said “Don’t make us cut you.” The Court found the offence to be a SPIO. [ 119 ] Similarly, the defence argued the factual scenario in Lebar , supra, was much more serious and distinguishable from the case at bar.

In that case, as noted above, the accused entered a liquor store, touched the cashier’s shoulder, produced a knife with a five inch blade, held it close to her neck and told her it was a robbery. She handed over a sum of money. Analysis and consideration of cases on “use or attempted use of violence” [ 120 ] In Lebar , the Ontario Court of Appeal held that the meaning of SPIO must be determined in the context of the provisions of the Code dealing with conditional sentences (para. 38). The court then undertook a historical analysis of the development of the amendment to the Code .

Following this Epstein J.A. stated her conclusions about the meaning of “violence” in an SPIO. She stated at para. 49 and para. 50: 49 In my view, the meaning of "violence" in this definition must be informed by the entirety of the definition of a serious personal injury offence.

A serious personal injury offence is defined, in part, either as an offence involving the use or attempted use of violence against another person, or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person." Taken together, and especially taking into account the far-reaching meaning of the word "safety", these two clauses point to the legislature's intention to cover a very expansive range of dangerous behaviour with the term "serious personal injury offence". 50 A finding that violence was used remains a matter of factual determination for the trial judge.

Whether the criminal conduct amounted to the use or attempted use of violence is a matter relating to the circumstances under which the crime was committed. This is not tantamount to an objective assessment of the seriousness of the violence; rather it is a question of determining whether the evidence proves that violence was actually used. [ 121 ] The Ontario Court of Appeal appears to me to be taking an expansive meaning of the term “use or attempted use of violence” that may go beyond the plain meaning of those words. The Court does not focus on the words of the

section but rather suggests “all the circumstances” should be taken into account to determine if violence was actually used. The Court accepted the trial judge’s finding of violence on those facts. The trial judge held that “The very nature of using a knife as a threat to induce a desired result, whether implied or real is

an act of violence.” (quoted at para. 28 in Lebar ) [ 122 ] The case has been read as endorsing the view that a threat of violence is a use or attempted use of violence. A threat of violence, with respect, is not the same as the use of violence. It comes down to whether a threat is an attempted use of violence. Once a threat is accepted as a use or an attempted use of violence, as the Ontario Court of Appeal may have done in Lebar , the question of whether the threat needs to be explicit or can be implicit arises. [ 123 ] It would seem that in most cases where a weapon was used in a robbery, it would not be difficult to find an implicit threat, and this expansive

interpretation could sweep the vast majority of such robberies into the definition of a SPIO, despite the fact that the Parliamentarians chose not to specifically exclude robbery from the CSO regime. [ 124 ] In Lebar , the court said whether violence was used or attempted “is a matter relating to the circumstances under which the crime was committed.” [ 125 ] Seizing on that approach, the Crown argued here that the circumstances were such that the court ought to find violence was used or attempted to be used. Those circumstances the Crown emphasized were as follows: (

a) Robber was masked;

(

b) He demanded money; (

c) He ordered victim to the ground; (

d) He produced a knife; (

e) He cut the telephone cord; (

f) The victim complied in that she got to the ground and the money was handed over. [126] In Lebar, as will be discussed in more detail below, the Ontario Appeal Court in my respectful view strayed too far from ananalysis of the grammatical and ordinary sense of the words in the context of the statute as a whole. That Court placed too great anemphasis on legislative history and what the Court perceived as the object of the amendments to the conditional sentence regime.

Theresult appears to me to be an overly broad and vague definition of “the use or attempted use of violence”. [127] When the legislators chose to import a definition from the DO/LTO regime, rather than tailor one to the CSO regime, it seemsto me the legislators must have intended the definition to have a single meaning, namely a meaning the same as that understood in thecontext of the DO/LTO regime. [128] In fact the language used in s. 742.1 to exclude offences from consideration for CSOs is “other than a serious personal injuryoffence as defined in s. 752”.

It seems that the definition in s. 752 (and cases interpreting that definition) long pre-existed the conditionalsentence amendments in 2007 so it is hard to see how that legislative history of the 2007 amendments can or should have any significantimpact in the

interpretation of that definition. It seems to me the concept that the same definition may have two different meanings isproblematical in this context. [129] In my respectful view, the result in Lebar is based on the Appeal Court’s turning almost exclusively to the legislative history ofthe conditional sentence amendments of 2007 to interpret the definition. [130] The Crown also relied on R. v. McLeod, 2010 ONCJ 354. In that case the accused approached a gas station attendant and handedhim a note which stated “I have a gun. Hand over all the money you have. There is no need to argue. I can be rational”.

The next day heattended to the same gas station and committed a second robbery exactly as in the first. In both cases he fled with the money. Theaccused sought a CSO, arguing that although there was an implied threat of violence, there was no violence. The judge quoted Lebar andheld that in both robberies there were implied threats that constituted an attempted use of violence. [131] The Crown further relied on R. v. Nikolovski, (ON CA), [2005] O.J. No. 494 (C.A.) affirming 2002 CarswellOnt 4483 (SCJ).

There the Court had to determine if the predicate offences – two serious bank robberies – were SPIOs for the purposesof a dangerous offender application. The robber who was masked made statements and gestures causing the bank tellers to believe he hada weapon and their lives were at risk. No weapon was displayed. There was evidence that the victims were badly shaken up and medicalassistance was sought.

The trial judge found the Crown had proven use of violence and conduct likely to inflict severe psychologicalharm and found the robberies to be SPIOs. [132] On appeal the Court found it unnecessary to rule on whether the use of violence had been established. In my view this stanceshows that the approach to use of violence is not clear cut in Ontario. The facts were summarized by the Court of Appeal in the followingfashion: In each case the appellant was masked. In each case there were customers in the bank. In each case the appellant robbed three differenttellers.

In each case he had his hand in his pocket in a way that led the victims to believe that he had a weapon. A number of the tellerswere threatened with physical violence or death. [133] The Appeal Court focussed instead on the finding of severe psychological harm and found that the facts supported the trialjudge’s conclusion on that point. The Court stated at para. 16: . . . The tellers were terrified. Some went into shock. Others froze or went limp. The effects of the robberies lingered for some time. Oneteller was afraid of being along (sic) or was frightened to be out at night after being robbed.

Another was terrified and did not return towork for a week. One bank arranged for a psychiatrist to come in and talk with the staff to assist them with their emotional problemsafter the robbery. [134] Coming back to the Alberta Court of Appeal decision in Ponticorvo, supra, the Crown relies on the facts of that case asanalogous in support of its argument that there was the use of violence in this case. . . . The agreed statement of facts discloses that the respondent swung a knife three times, at a police officer who was in close proximity,forcing him to back away down some stairs.

The assault ended when another officer shot the respondent and disabled him from pursinghis goal. In the circumstances of this case, the assault with a weapon, involved the use of violence or attempted use of violence was andtherefore a serious personal injury offence. (Para. 16) [135] However, the defence denies that the use of the knife was in any way similar to the Ponticorvo situation and further points tothat Court’s later statement at para. 16 that not every threat with a weapon necessarily involves the use or attempted use of violence.

In apassage relied on by the defence in this case, the Court went on to observe: We are not saying that every threat with a weapon involves the use or attempted use of violence. For instance, it may be that the act ofbrandishing a weapon at a person from a distance, with no immediate apparent danger to the victim, does not fall within the phrase,violence or attempted use of violence. That was not the case here.

[ 136 ] Goforth , supra, is particularly helpful in throwing light on the appropriate

interpretation of “violence” and the “use of violence”. The Saskatchewan Appeal Court appears to take a narrower view of the meaning of violence or the use of violence than the Ontario courts. That Court observed at para. 22: The dictionary meaning of the word "violence" is "behaviour involving physical force intended to hurt, damage, or kill." (Concise Oxford English Dictionary, 10th Edition (Oxford University Press)).

Hence, to speak of the use of violence against another person, as in paragraph 752(a), is to speak of using physical force against another with intent to hurt, injure, or kill the other [ 137 ] In an earlier decision, R .v Roy , 2008 SKCA 41 the same Court had come to a similar conclusion about the meaning of “use of violence” in the SPIO definition in the context of an application for a DO assessment. Again, the sentencing judge's decision that Mr. Roy had not used "violence" against her cannot be seriously questioned. Courts are naturally reluctant to provide a definitive definition of a word like violence.

The determination of whether a person has used violence will usually be intertwined with a consideration of the evidence. I note however that s. 752 itself draws a distinction between "violence" and "attempted violence." Given this, it would not do a disservice to the word "violence" to look at its traditional definition. Black's Law Dictionary defines violence to be the "the use of physical force, usually accompanied by fury, vehemence, or outrage; especially, physical force unlawfully exercised with the intent to harm." 14 Mr. Roy brandished a bat, he menaced Cst.

Kinzel, but this does not amount to proof that he used violence in these terms. He assaulted her, in the technical sense of the word, but he did not use force against her, and this, too, is what the sentencing judge found. (Emphasis added) [ 138 ] The Court then went on to consider whether the conclusion that there was no attempted use of violence was sound. There appeared to be some question about the actual facts of the incident, but the Appeal Court found that this had been left to the trial judge.

Her conclusion and reasoning that there was no attempted use of violence was accepted, with the Appeal Court underlining the key words in her analysis. See para. 36 in Roy : From these conflicting versions, the sentencing judge wrote, and I repeat: [29] ... There was no attempt to try and strike either officer. Brandishing the bat at Constable Kinzel is technically an assault and the accused has acknowledged that by pleading guilty. Both officers had their batons out and I would assume that each was equipped with standard issue pepper spray and a revolver.

No attempt was made by the accused to lunge at either officer. It is certainly possible that the situation could have escalated and the accused could have attacked either or both officers. He did not do this. I have difficulty accepting that standing eight feet away and holding the bat over his head could, in all the circumstances, "constitute the use or attempted use of violence".

I also do not accept that the accused engaged in conduct endangering or likely to endanger the life or safety of either officer. (Emphasis in original) [ 139 ] The Appeal Court held that the finding that a SPIO had not been established by the Crown was correct. [ 140 ] I note that in R. v. C.D. ; R. v. C.D.K. , [2005] S.C.R. 668, the Supreme Court of Canada observed at para. 33 that after examining “dictionary, ordinary and judicially constructed

definitions of ‘violence’, it can be said that ‘violence’ is typically associated with either the application of force or the causation of harm or injury…”. Thus, the

interpretation here that violence means the application of force is in accord with both common and judicially constructed

interpretations. That the application of force approach to the meaning of violence is correct in this context seems to be strengthened by its association with the term “use” or “attempted use”. [ 141 ] I find that the

interpretation of use of violence or attempted use of violence in Goforth and Roy in s. 752(a)(

i) to be correct. Parliament was concerned about the potential use of the CSO in cases where offenders were actually harming their victims, whether through applying or attempting to apply actual physical force (s. 752(a)(i)) or endangering them or causing severe psychological distress (s. 752(a)(ii)).

That concern was addressed by importing the definition of a SPIO used in DO/LTO proceedings. [ 142 ] It would seem to follow that the attempted use of violence would be made out when there was an attempt to use physical force against a victim – such conduct as slashing at a victim with a knife or swinging a bat, yet failing to make actual contact with the victim.

That is exactly the situation the Alberta Court had before it in Ponticorvo , supra. [ 143 ] Thus it seems to me that there must be a finding that some kind of physical force was actually used (hitting, pushing, stabbing with a knife) or attempted (swinging at the person with a fist or weapon but missing, or attempting to stab them) before the definition in s. 752(a)(

i) is met. Merely arming oneself with a weapon does not constitute the use of violence. [ 144 ] In my opinion, with the greatest of respect to courts that have found otherwise, a threat of violence – whether explicit or implicit – simply does not constitute the use or attempted use of violence. To interpret the phrase “the use or attempted use of violence” as including a threat of violence is to read in words and a concept that is not encompassed in the ordinary or usual meaning of the words. While in some circumstances principles of statutory

interpretation permit and may even oblige a court to depart from the plain meaning, this is not a situation where that is appropriate. [ 145 ] As noted above, courts ought to consider the grammatical and ordinary sense of the words used in the context of the particular Act. Words in a statute must be read in harmony with the legislative framework in which the provision is found. Elsewhere in the Criminal Code it is quite apparent that legislators appreciate the difference between the use, or attempted use, of violence versus a threat of violence.

One need only look to the commonly used provisions respecting the mandatory and discretionary weapons prohibitions, and to contrast that wording in clause 752(a)(i). 109.

(1) Where a person is convicted, or discharged under

section 730, of

(

a) an indictable offence in the commission of which violence against a person was used, threatened or attempted and for which theperson may be sentenced to imprisonment for ten years or more... (emphasis added) 110.

(1) Where a person is convicted, or discharged under

section 730, of (

a) an offence, other than an offence referred to in any of paragraphs 109(1)(a), (

b) and (c), in the commission of which violence against aperson was used, threatened or attempted, or... (emphasis added) [146] It would have been a simple matter to word the definition in s. 752(a)(1) to read in similar fashion to s. 109 and 110: the use or threat or attempted use of violence against another person, or [147] There is a presumption of consistent expression in the statute that is relevant: “When

an Act uses different words in relation to the same subject such a choice by Parliament must be considered intentional andindicative of a change in meaning or a different meaning.” Peach Hill Management Ltd. v. Canada, (FCA), 2000 FCJ No. 894; (F.C.A.) and see Sullivan on the Construction of Statutes, 5th Edition at p. 214 and following. [148] With respect, there is no basis for reading s. 752(a)(

i) to include a threat of violence when the framers had a choice to make andchose not to, in contrast to the choice made in the context of weapons prohibition orders. [149] Nor should judicial

interpretation stretch the words beyond their ordinary meaning in a penal statute, where to do so is inconflict with the sentencing principles in s. 718.2(d) (least restrictive alternative) or s. 718.2(e) (consider all available sanctions otherthan imprisonment). [150] It must be remembered that an

interpretation that effectively reads in the missing words “or the threat of violence” will open thedoor to greater use of the DO/LTO sentencing option, and will close the door to consideration of a CSO. Both results constitute a furtherincursion on liberty interests. In R. v. C.D. 2005 SCC 78 , [2005] 3 S.C.R. 668 at para. 50, the Supreme Court of Canadaconfirmed that “the well-known principle of statutory

interpretation that states that ‘where two

interpretations of a provision whichaffects the liberty of a subject are available, one of which is more favourable to an accused, then the court should adopt this favourableinterpretation’” remains an important consideration. [151] As well, I daresay that robbery victims could well appreciate the difference between physical violence actually perpetrated onthem, or a near miss by a perpetrator swinging at them in an attempt to hurt them, on the one hand, and a threat of violence, on the otherhand. [152] I am strengthened in my conclusions about the meaning of the “use or attempted use of violence” by the fact that my colleague,Judge Chapman, recently took a similar approach and held that a threat is not a use or attempted use of violence.

The case was R. v.Sidhu, not yet reported, November 9, 2011 (MBPC), wherein she imposed a CSO for two robbery offences. [153] As well, after a thorough analysis Justice McKelvey reached a similar conclusion – this time in the context of an LTO/DOapplication – in R. v. Steele, 2011 MBQB 181 , 2011MBQB 181. In that robbery, the accused had his hands in his pockets andhe said that he had a weapon. He demanded money, “Give me the money. It’s a robbery. I have a gun.” She held that at most there wasan implied threat of violence but this did not constitute the use or attempted use of violence.

Conclusion on meaning of “use or attempted use of violence” [154] Thus, in cases of robbery where a weapon is used, even if a threat is made, whether explicitly or implicitly, but there is no actualuse of physical violence or an attempted use of physical violence as described above, or any finding under clause 752(a)(ii) of conductendangering, or likely to endanger or inflicting or likely to inflict severe psychological harm, a CSO will be available. In this context, theuse of violence is the use of physical force against another person, or the attempted use of physical force.

A threat of violence, explicit orimplicit, is not the use or attempted use of violence. I recognize that a broader or different meaning can be given to the term violence(see the discussion in R. v. C.D. 2005 SCC 78 , [2005], 3 S.C.R. 668) but for the reasons set out it is not appropriate in thiscontext. [155] It must be emphasized that this only means that the door will be open to consideration of a CSO. It by no means follows, as hasbeen clear from past jurisprudence, that a court will determine that a CSO is to be ordered.

It cannot be done if the offender is a danger tothe community, or if the relevant sentencing principles cannot be satisfied by the imposition of a CSO. So while the door may be openfor a sentencing judge to impose a CSO, the prison door may yet close behind the offender. [156] For the reasons outlined above, I reject the Crown’s argument that the use of the knife by the balaclava cloaked Kotelko whiledemanding the money amounted to either an implicit threat of violence or “circumstances” which constituted the “use or attempted use ofviolence.”A threat of violence is not a use or attempted use of violence.

[ 157 ] If I am wrong in my analysis that a threat of violence is not a use or attempted use of violence, I find that in the circumstances here, the Crown has failed to satisfy me that the use of the knife constituted an implicit threat of violence. As noted, it was not brandished, or waved at the victim; its use was confined to cutting the telephone wire.

While the circumstances were understandably frightening to the victim, I find that there was no violence or attempted use of violence in this case. [ 158 ] Certain uses of a weapon or threats of violence – explicit or implicit – can surely cause or be likely to cause severe psychological damage. Likewise a court may find that such a fact scenario was conduct endangering or likely to endanger the life of safety of crime victims. So a CSO may yet be excluded under clause 752(a)(ii). It is to consideration of this next clause in the context of this case that I turn now.

Was there conduct endangering or likely to endanger the life or safety of the victim or inflicting or likely to inflict severe psychological harm? [ 159 ] The

interpretation of this clause is much more straightforward. Whether the conduct endangered or was likely to endanger the life or safety of the victim or victims of a crime is largely a factual determination. A loaded firearm pointed at or held to a victim’s head would surely fit this description. Use of an imitation firearm in such a circumstance may not, though it could well cause severe psychological damage. [ 160 ] There is one appellate case that considered the application of the term “conduct endangering” to a particular fact scenario. In R. v.

Roy , supra, confirming the ruling of the sentencing judge, Jackson J.A., at para. 30, stated: I do not think there can be any question that the brandishing of the bat, if we call it that, cannot be "conduct endangering or likely to endanger the life or safety of another person." While brandishing a weapon like a gun may constitute endangerment, the judge's conclusion that brandishing a bat, in the face of unknown intent and at a distance of eight feet could not, in and of itself, endanger or likely endanger the life or safety of someone, is a reasonable conclusion. [ 161 ] In the case at bar, I cannot find that the use of the knife to cut the telephone cord in all the circumstances constituted conduct endangering or likely to endanger.

The Crown did not press that argument. The Crown also accepted the plea on the basis of Kotelko’s statement. I accept that the victim’s safety or life was never in fact in danger, and indeed that Kotelko would never have used it or otherwise physically hurt the complainant. [ 162 ] The next component is whether the conduct caused or was likely to cause severe psychological damage. As noted above, the Ontario Court of Appeal dealt with this issue in R. v. Nikolovski , supra, in the context of a DO application.

The masked robber made statements and gestures causing the bank tellers to believe he had a weapon and their lives were at risk. A number were threatened with violence or death. There was evidence that the victims were badly shaken up and medical assistance was sought. The Appeal Court upheld the finding that the offences were SPIOs based on severe psychological harm at para. 16 (quoted above at paragraph 133). [ 163 ] In this case the Crown argued that because of the severe psychological harm to the victim the offence is an SPIO. The Crown relied on the VIS and the information in the PSR provided by the victim.

The victim told the author of the PSR she feared for her life during the robbery and to this day, nearly four years later, she has nightmares and flashbacks. Her victim impact statement prepared on June 30, 2011 attests to the psychological damage she suffered. It is quoted above at paragraph 20. [ 164 ] The VIS and the information in the PSR shows that the effect of the crime was significant and has persisted over time; medication and counselling were both required by the victim; the crime has affected her daily living, her employment and her relations with family.

It left her feeling unsafe in her community. [ 165 ] Defence counsel for Lindell argued that there has to be a nexus between the acts engaged in by the accused, and the outcome – that some objective standard needs to be imported into the analysis. He focussed on whether the mere cutting of the phone cord could possibly be enough to cause severe psychological harm. [ 166 ] While the use of the knife was the focus of arguments under s. 752(a)(

i) it is not the focus of the analysis under s. 752(a)(ii). The question is whether the robbery committed involved conduct “inflicting . . . severe psychological damage” on this victim. A balaclava masked robber appeared suddenly, ordered her to get down on the floor, demanded money and cut the phone cord, which is a symbolic and actual lifeline to outside help. [ 167 ] I am satisfied that this type of conduct could cause severe psychological harm – whether that was likely or not I need not determine – and in fact for this victim did cause severe psychological harm.

To a significant extent a criminal must take the victim as he or she finds him or her. [ 168 ] The passage of time since the offence has worked very favourably for the offenders in terms of positive change and rehabilitation in their lives. Yet time has not yet fully healed this victim. She is still dealing with the effects of the crime. Had the offenders been caught immediately, or chosen to come forward or confess at the time, the victim may have been spared the degree of harm she has experienced.

That did not happen and the result is that she has suffered severe psychological harm. [ 169 ] Although the point was not argued, it seems to me that evidence from the victim alone, whether given orally, through a VIS or through information in a PSR, can be a sufficient foundation for a finding of severe psychological damage.

There may be cases where additional evidence can or should be led, or cases where an offender can seek permission to cross examine or lead contrary evidence on this point. [ 170 ] In conclusion I am satisfied that the conduct of Kotelko in committing the robbery caused severe psychological harm to this

victim. Lindell is equally to blame. She was an equal partner in the planning and execution of the crime. The offence is a SPIO and assuch a CSO is not available. WHAT IS THE APPROPRIATE SENTENCE [171] Having ruled out a CSO, I must now consider the appropriate sentence among the remaining options, including incarceration,fines, and probation. [172] The fundamental principle is proportionality: a sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender.

The sentence must also take into account and give appropriate weight to the objectives of sentencing atplay, and consider aggravating and mitigating circumstances. [173] There are certain factors that I wish to emphasize before setting out what I believe to be a fit and appropriate sentence. THE SIGNIFICANCE OF THE FACT THAT THESE ARE YOUTHFUL FIRST OFFENDERS [174] It has long been the case that the principle of restraint is operative for youthful offenders. See: R. v. Demeter and Whitmore(1976), (ON CA), 32 C.C.C. (2d) 379 (Ont. C.A.).

The rationale must surely be the common sense realization thatsome – if not most – young adults lack maturity and life experience. [175] Our community understands that young adults sometimes behave foolishly, and some commit criminal acts. While they must notescape unpunished, their immaturity and lack of experience diminishes their level of responsibility and moral blameworthiness for crimesthey commit as compared to mature adults. It is only just that this be reflected in the sentence imposed.

As the moral blameworthinessand consequent degree of responsibility of youthful offenders is less, sentences of imprisonment should be shorter in duration comparedwith older offenders. [176] Courts have also held that particularly in the case of a youthful offender, the first sentence of imprisonment should focus on theparticular offender, including the requirements of individual deterrence. Its length ought not to be governed by the factor of generaldeterrence. R. v. Vandale and Maciejewski (1974), (ON CA), 21 C.C.C. (2d) 250 (Ont.

C.A.). [177] Both of these cases were considered, quoted from and applied with approval by the Manitoba Court of Appeal in R. v.McCormick, (MB CA), [1979] 4 W.W.R. 453. In that case the Appeal Court upheld a three month sentence for a 20year 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) [178] It seems clear that the circumstances of that offence were even more serious than those in this case.

There were some unusualaspects to the case, based on the accused’s consumption of valium and the expert evidence about the effect of that drug. [179] In approving Vandale, supra and Demeter, supra, the Manitoba Court of Appeal observed that Dubin J.A. in Demeter hadapproved a three month sentence for a robbery committed by two young men that was similar to the robbery committed by the accusedin the case before it.

The Court held that the trial judge was entitled to rely on that case as an example of an appropriate sentence. [180] According to the Manitoba Court of Appeal, the primary consideration in determining the length the sentence for youthful firstoffenders is what period is needed to impress on the particular offender before the court the gravity of the offence. Such a term need notbe lengthy. As Huband J.A. observed in para. 20 in McCormick: 20 The punishment should be tempered by virtue of a clear record.

Punishment of the individual is intended to so impress the accusedthat he is unlikely to run foul of the law again. Having no prior experience to determine its effectiveness, the benefit of the doubt shouldgo to the accused, and this is doubly so when the accused is young in years. In Regina v. Vandale and Maciejewski (1975), (ON CA), 21 C.C.C. (2d) 250, the Ontario Court of Appeal, in a judgment by Martin, J.A., expressed the view that with youthfulfirst offenders, the prime consideration in determining the custodial period is the need to impress upon the accused the gravity of hisoffence.

That sentiment was re-stated in the same court by Dubin, J.A., in Regina v. Demeter and Whitmore (1978), 3 C.R. (3d) 55. TheDemeter case involved two young men, aged 16 and 17, who committed an armed robbery of a kind similar to the robbery committed byMcCormick. Dubin, J.A., in imposing a three month sentence to be followed by a period of probation, wrote as follows: In considering what is an appropriate sentence for the very young, the paramount consideration must be their immediaterehabilitation.

Speedy apprehension, arrest, public trial and a criminal record, with its consequences, should be the best deterrent forthose young persons who may be tempted to commit an offence such as this. In the instant case there is no reason to believe that these two youths had set upon a course of criminal activity as a pattern for theirfuture. Indeed, the contrary appears clear. A short custodial term, followed by a period of probation, in my opinion, affords the best

prospect for their immediate rehabilitation, and if that is accomplished, the protection of the public and the interests of society are bestserved. (emphasis added) [181] Regrettably, this case has not proceeded as expeditiously as it should through the criminal justice system. [182] As Twaddle J.A. observed in R. v. Kennedy, 2000 MBCA 44 at para. 8 “As a general rule, when dealing with offences whichmerit only provincial time, the first sentence of imprisonment should not be overly long.” It is hard to see how a sentence of approachingtwo years, as the Crown suggests, gives appropriate heed to that principle.

Twaddle J.A. accepted that short sentences could be veryeffective in some cases by reason of the “memory of clanging prison gates” alone, observing at para. 10: The same thought was expressed in more colourful language by Lawton L.J., in R. v. Sargeant (1974), 60 Cr.App.R. 74 (C.C.A.). Hesaid at p. 78: a. Some 20 to 25 years ago there was a view abroad, held by many people in executive authority, that short sentences were oflittle value, because there was not enough time to give in prison the benefit of training. That view is no longer held as firmly as it was.This young man does not want prison training.

It is not going to do him any good. It is his memory of the clanging of prison gates whichis likely to keep him from crime in the future. [183] That colourful statement is apt for both of these offenders, neither of whom needs treatment. It is the prospect of clanging gatesclosing behind them, even for a relatively short time, that will deter these offenders, to the extent deterrence is required beyond theprosecution, conviction, criminal record and restitution consequences that arise from their crime. [184] The fact of incarceration for any period of time is significant.

It underlines in dramatic fashion that the offender has violatedcommunity values and deserves to be ostracized and lose his or her liberty. [185] In the case of these offenders the effect of incarceration will be significant. This is especially so in Lindell’s case. She has atoddler from whom she will be suddenly separated. The serving of any period of custody has the clear potential to harm her child for lifeby disrupting the attachment process so critical in development.

She will have to live with the fact that her criminal behaviour and itsnecessary consequences put her child at risk. [186] Not only are both accused persons youthful offenders, they are first offenders. The case law supports the proposition that thismitigating factor should be also influential in determining a fit sentence. Generally the primary objectives in dealing with first offendersare individual deterrence and rehabilitation. The sentence should constitute the minimum necessary intervention that is adequate in thecircumstances. Sentences of incarceration should be imposed only where necessary R. v.

Priest (1996), (ON CA), 110C.C.C. (3d) 289 (Ont. C.A.). [187] Recently, in R. v. Draper, 2010 MBCA 35, the Manitoba Court of Appeal explicitly referred to Priest, supra, with approval atparagraph 24. The fact that the accused had a diagnosis of FASD was described as a significant mitigating feature. The Court cautionedsentencing judges not to overemphasize general deterrence and denunciation. This can equally be understood as applicable to the fact thatthe accused was a first offender, as in the Priest case, supra.

Steel, J.A. observed at para. 41: Yet, with offenders such as the accused, the court should follow the principle of restraint as much as possible. When incarceration isrequired, the term should be as short as possible and tailored to the individual circumstances of the accused. Restraint also requires thesentencing judge to consider rehabilitation in determining the appropriate length of the sentence. (emphasis added) GENERAL DETERRENCE [188] I have already set out the case law which holds th

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