Her Majesty the Queen ) Tim Chudy, ) for the Crown - v. –, 2018 MBPC 9

Cite: 2018 MBPC 9 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Tim Chudy, ) for the Crown- and – ) ) Randal Waylon Gladue, ) Theodore Mariash, Accused ) ) for the Accused ) Judgment delivered: February 9, 2018 ) R.L. POLLACK P.J. [1] Upon his pleas of guilty Randal Waylon Gladue was convicted of four offences committed on February 15, 2017. Two arerobberies committed with Samantha Marie Stevenson.

His convictions are the result of a plea bargain involving typical exigentcircumstances with prosecution witnesses: a missing witness, a reluctant witness and an accomplice witness (Stevenson). [2] In the late afternoon he and Stevenson approached a university student who was leaving a pizza restaurant. Stevensonproduced a hunting knife from her jacket and the two robbed the man of his cell phone and wallet which contained personal papers aswell as $60.00. Randal Gladue is guilty of that robbery. [3] That evening another student was approached by the two as she walked to her car.

When they demanded her property thisvictim resisted. Randal Gladue then punched her in the face and stabbed her in the lower back with a knife. The woman was fortunatethat the wound could be addressed with eight staples at the hospital. Randal Gladue is guilty of that robbery as well. [4] Between those two robberies were three others for which Stevenson has been convicted. Although I was provided withpolice reports documenting allegations of his complicity, Randal Gladue is only being prosecuted for possession of the proceeds of oneof them. That evening a vehicle was the subject of a traffic stop by police.

Randal Gladue and Stevenson were found in the rear seat ofthat vehicle with proceeds from all of the robberies. Randal Gladue is guilty of possession of some of that property obtained by crime. [5] Randal Gladue is also guilty of being in breach of an Alberta recognizance that required him to abstain from using drugs. Iam unaware of the antecedents to that recognizance. [6] Both offenders were intoxicated when they were arrested by police who described Randal Gladue as “wasted”. It wasnecessary to have him medically cleared before his detention could be processed. [7] Several propositions are doubtless.

The first is that Randal Gladue participated in offences that can adequately be describedas a spree of robberies. In R. v. Wozny, 2010 MBCA 115, MacInness JA, writing for Scott CJM and Freedman JA, explained: 51. The rationale for permitting a sentencing judge to impose in his/her discretion a concurrent sentence, notwithstanding the factthat "spree offences" appear to be separate and distinct, is that the sentencing judge may conclude that the accused was acting under anunbroken influence of addiction, such that the offences could be seen or interpreted as forming a single, continuous transaction. 52.

While there are general rules as to when one might impose a concurrent sentence or a consecutive sentence, in the end, the kindof sentence imposed is within the discretion of the sentencing judge. It is essentially fact-driven based upon the circumstances of thegiven case.

It is my opinion that the drug-induced conduct of Randal Gladue that day was unbroken and that he should be sentenced concurrently forthe robberies, possession of the proceeds of robbery as well as being intoxicated in breach of his interim release order. [8] The second proposition influencing sentencing in this case is that a generational chain of events and effects connect RandalGladue to Canada’s colonization of Indigenous people. The submission by his lawyer that “every single identifiable Gladue factor” (R.v.

Gladue, (SCC), [1999] 1 S.C.R. 688) is present here may be hyperbole but it is hyperbole at its weakest. The pre-sentence report clearly connects the dots: a grandparent from residential schools, a father holding high rank in a street gang in and out ofjail, social workers placing him in a home where he was a victim of abuse, early substance abuse leading to his present addiction and amother who is believed to be one of the missing and murdered Indigenous women. [9] Against that background the third proposition arises: every sentence, regardless of the existence of R. v.

Gladue factors,must achieve proportionality. In the Wozny decision, MacInnes JA wrote:

86. But the proportionality principle calls for more than simply consideration of the circumstances of the accused. It calls for the imposition of a sentence which reflects the gravity of the offences, the harm done and the moral blameworthiness of the offender, resulting ultimately in a sentence which, in all of the circumstances, "speaks out against the offence and punishes the offender no more than is necessary" ( Nasogaluak , at para. 42). It calls for a delicate balancing act which is fact-driven in each particular case. (The reference is to R. v.

Nasogaluak , 2010 SCC 6 .) [ 10 ] Against the overarching proportionality principle, an issue of parity has arisen in this case. Stevenson was sentenced to thirty months, concurrent on all counts, less eleven months credited for time served followed by probation for three years. In sentencing her on September 21, 2017, Devine PJ wrote: And Samantha’s life, again, has been marked by violence and it has been marked by addiction and by incarceration when she was a youth and now of course today. So the pattern is clear. So her degree of moral culpability is affected by that.

If she was not a result of those three generations (at least, and probably more) of residential schooling and the legacy of colonialism, she might not be here today. She likely would not be. If she was not an Indigenous girl she might not be here today sitting in this Court before me. But she is. That judgment deals in detail with R. v. Gladue factors but denunciation and deterrence are not elaborated upon.

The prosecution must be satisfied that it adequately addressed denunciation and deterrence, however, because although the prosecutor advised me that leave to appeal that sentence had been sought, the day before this matter came on before me a notice of abandonment was filed in the Court of Appeal. And I have been given no further information about that decision. [ 11 ] For Randal Gladue, the prosecution seek a sentence of five years, citing authority for not insignificant penitentiary sentences for robberies.

They stress the degree of violence by Randal Gladue against the latter victim; he not only struck her in the face when she resisted but introduced an edged weapon that pierced her flesh. The defence respond with a plea for parity; they say that the sentence for two robberies cannot possibly be double the sentence - with which the Crown is content - for an offender who committed five robberies. [ 12 ] The defence go so far as to suggest that, because Randal Gladue is entitled to credit for having served fifteen months in detention, I should sentence him to a term that would allow for a probation order to follow.

The submission that a probation order would be an appropriate sentencing term is not without some merit. The offender is doing well in the Winding River Therapeutic Community , an addictions treatment program that has a community based link for an offender released on probation. [ 13 ] The offenders do not have identical criminal records but they are similar.

Stevenson, a year older than Randal Gladue, also has violent and weapon offences in her record although she may have been sentenced on more occasions than Randal Gladue. (The prosecutor chose to give me a complex version of her record that is difficult to decipher.) The longest sentence that Randal Gladue received in the past was sixty days and it was for a probation order breach, not assault causing bodily harm for which he received forty- five days before that or possession of an unauthorized weapon for which he received fourteen days since then. And the R. v.

Gladue factors are prominent in both of their histories. [ 14 ] Both counsel have referred to all five robberies. The prosecutor used the additional facts to demonstrate some exigencies that led to the plea bargain while Randal Gladue’s lawyer used them to demonstrate Stevenson’s degree of criminality for which she was sentenced to just thirty months. Although he is not guilty of a third robbery, Randal Gladue is found in joint recent possession of the proceeds with the offender Stevenson.

So, while he is not being prosecuted for Stevenson’s entire spree, he is convicted of substantial crimes in that spree. [ 15 ] In considering the parity principle, I adopt this proposition by the Alberta Court of Appeal panel in R. v. Souter , 1998 ABCA 346 : 24 Parity is a valid principle of sentencing, but it is not an absolute. Even within a jurisdiction, where the court concludes that the sentence to which parity is sought is demonstrably unfit for the offences, the rule of parity does not demand that a court impose a sentence which it finds demonstrably unfit.

If a term of probation was to follow then the incarceration term could not exceed thirty-nine months. In my opinion a sentence of thirty- nine months would fail to make a valid statement about denunciation and general deterrence in view of the degree of violence perpetrated by this offender with his fist and his knife on the second victim. Such a sentence would fail to reflect the act of stabbing her in the back which was tantamount to an aggravated assault, and both the police report and the transcript of the Stevenson sentencing indicate that the robbery was complete when Randal Gladue introduced the knife.

It would therefore be demonstrably unfit. [ 16 ] In addition to R. v. Wozny , I have considered Court of Appeal cases submitted by the prosecution including R. v. Charlette , 2014 MBCA 32 and R. v. Okemow , 2017 MBCA 59 in determining an appropriate sentence. The craft of sentencing comes from both reading law and being involved in the array of cases that never become appellate cases and I have that advantage in this Court.

Proportionality in this case requires a sentence that reflects the violence and use of a weapon by the offender in that second robbery but it should also reflect true cognizance of the circumstances of this Indigenous offender. [ 17 ] Randal Gladue is sentenced to four years to be served concurrently for two counts of robbery and one count of possession of property obtained by crime and to six months to be served concurrently for failure to comply with a recognizance; he is to be given credit for having served fifteen months, leaving two years and nine months remaining to be served. [ 18 ] Pursuant to Criminal Code , s. 487.04(a), robbery is a primary designated offence and the offender must provide a sample of his DNA on demand to a qualified peace officer. [ 19 ] Pursuant to Criminal Code , s. 109, the offender is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for ten years following release from imprisonment.

[ 20 ] Pursuant to Criminal Code , s. 117.02(2), the seized knife is ordered to be forfeited. [ 21 ] Pursuant to Criminal Code , s. 737(2), a victim fund surcharge of $200.00 on each count is assessed for a total of $800.00. Those amounts are payable forthwith and, in default of payment, there will be a concurrent sentence of one week for each surcharge. “Original signed by” R.L. POLLACK P.J.